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NATIONAL  REPORTER  SYSTEM— STATE  SERIES 

I 

THE 

ATLANTIC  REPORTER 

VOLUME  101 

PERMANENT  EDITION 

OOHFBISINO  AIX  THE  BXFOBTED   DECIBIONB  OF  THX 

SUPREME  COURTS  OF  MAINE,  NEW  HAMPSHIRE.  VERMONT,  RHODE  ISLAND 
CONNECTICUT,  AND  PENNSYLVANIA;  COURT  OF  ERRORS  AND  APPEAL 
COURT    OF    CHANCERY,    AND    SUPREME    AND   PREROGATIVE 
COURTS  OF  NEW  JERSEY;  SUPREME  COURT,  COURT  OF 
CHANCERY,  SUPERIOR  COURT,  COURT  OF   GEN- 
ERAL  SESSIONS,  AND   COURT    OF  OYER 
AND   TERMINER   OF   DELAWARE 
AND  COURT  OF  APPEALS 
OF  MARYLAND 


WITH 
KEY-NUMBER  ANNOTATIONS 


JULY  19  —  NOVEMBER  1,  1917 


^^- 


ST.  PAUL 

WEST  PUBLISHING  CO. 
1917 


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CoPTBiaHT,  1917 

BT 

WEST  PUBLISHING  OOMPANT 
(101  AtU 


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▲TZiANTIC  REPORTER,  YOLiUUn  101 


JUDGES 


OF   THE   COURTS   REPORTED  DURING  THE   PERIOD   COVERED 

BY  THIS  VOI.UME 


OOmnBOTIOnT— Supreme  Court  of  Errors. 

aAUUHL  O.  PRENTICE,  CBiBT  Jvemom. 

ABBOdATK   JDSTICBB. 

JOHN  M.  THATER.» 
AliBBRTO  T.  RORABACK. 
GEORGE  W.  WHEEUER. 
JOHN  K.  BEACH. 
MHiTON  A,  8HUMWAT.* 

DEIiAlV ABE— Supreme  Court. 

CHARLES  M.  CURTIS.  CHXNCBIiOa. 
JAMES  PENNETWILii,  Csixr  JUBTlca. 

▲880CIATB   JirsaBB. 
WILLiIAM  H.  BOTCB. 
HENRY  0.  CONRAD. 
HERBERT  L.  RICE. 
T.  BAYARD  HEISEL. 

Court  of  Chancery. 

CHARLES  M.  CURTIS,  CHANC»IJ/)B. 

MAINE— Supreme  Judicial  Court. 

AI^BERT  R.  SAVAGE,  Chibp  JtjBTiCl.' 
I^BSLIS  C.   CORNISH,  Chibi-  Jubticb.* 

AssociATa  juBTicaa. 
liESLIB  C.  CORNISH.* 
ALBERT  M.  SPEAR.' 
ARNO  W.  KING. 
GEORGE  E.  BIRD. 
GEORGE  F.  HALEY. 
GEORGE  M.  HANSON. 
WARREN  C.  PHILBROOK. 
JOHN  B.  MADIGAN. 

MABTIiAm}— Court  of  Appeals. 
A.  HUNTER  BOYD,  Chibf  JUWIB. 

ABSOCI^TB    JUDOBB. 

JOHN  P.  BRISCOE. 
N.  CHARLES  BURKE. 
WIXJJAM  H.  THOMAa 
JOHN  R.  PATTISON. 
HAMMOND  URNER. 
HENRY  STOCKBRIDGB. 
ALBERT  CONSTABLE. 

intw  HAMPSHIKE— Supreme  Court 
SlUNK  N.  PARSONS,  CHim'  JOBTioa. 

ASBOCIATB  JTTBTICBB. 

BEUBEN  B.  WALKER. 
JOHN  E.  YOUNG. 
ROBERT  J.  PEASLEB. 
WILLIAM  A.  PLUMMEB. 

■EW  JEBSET— Court  of  Errors  and 
Appeals. 

EDWIN  ROBERT  WALKER,   Chancbluw. 
•WILLIAM  S.  GUMMERE,  CBIxr  JnsTICT. 


HEW  JEBSET— Court  of  Errors  and  Ap> 
peals  (Confd). 

JTTBTICBB. 

CHARLES  G.  GARRISON. 
FRANCIS  J.  SWAYZB. 
THOMAS  W.  TRENCHABD. 
CHARLES  W.  PARKER. 
JAMES  J.  BERGEN. 
JAMES  F.  MTNTURN. 
SAMUEL  KALISCH. 
CHARLES  C.  BLACK. 

JUDOBS. 

JOHN  J.  WHITE. 
HENRY  S.  TERHUNB. 
ERNEST  J.  HEPPBNHEIMHR. 
ROBERT  WILLIAMS. 
FRANK  M  TAYLOR. 
WALTER  P.  GARDNER. 

Court  of  Chancery. 
BDWIN  ROBERT  WALKER,  CRANoaiXOB. 

yiCB   CHA1ICBI.I.OB8. 

FREDERIC  W.  STEVENa 
BUGENB  STEVENSON. 
EDMUND  B.  LEAMINQ. 
VIVIAN  M.  LEWIS. 
JOHN  H.  BACKES. 
JOHN  GRIFFIN. 
JOHN  E.  FOSTER. 
MERRITT  LANB. 

Supreme  Court. 

WILLIAM  8.  GUMMERE,  CKIBF  TomOM. 
ASBOCIATB  JUBTICZS. 
CHARLES  G.  GARRISON. 
FRANCIS  J.  SWAYZE. 
CHARLES  W.  PARKER. 
THOMAS  W.  TRBNCHARIX 
JAMES  F.  MINTURN. 
JAMES  J.  BERGEN. 
SAMUEL  KALISCH. 
CHARLES  C.  BLACK. 

Prerogative  Court. 

EDWIN  ROBERT  WALKER,  OBDlNioy. 
TICB   OBDIMABIBS. 
FREDERIC  W.  STEVBNa 
EUGENE  STEVENSON. 
EDMUND  B.  LEAMINQ. 
VIVIAN  M.  LBWia 
JOHN  H.  BACKES. 
JOHN  GRIFFIN. 
JOHN  E.  FOSTER. 
MERRITT  LANE. 

PEmrSTIiVAmA— Supreme  Courb 
J.  HAY  BROWN,  Caar  SvevKm. 

JTTBTICBS. 

S.  LESLIE  MESTREZA 
WILLIAM  P.  POTTER. 
JOHN  STEWART. 
ROBERT  MOSCHZISKER. 
ROBERT  S.  FRAZER. 
EMORY  A.  WALLING. 


>  Retired  Marcb  IE,  UlT. 
'Appointed  March  IS,  1917,  to 
Tliarar. 


snooeed  Joha  M. 


597919 


(T) 


•  Died  June  14,  1917. 

•  Appointed  Chief  Justice  June  26,  UIT. 

•  Appointed  June  25,  U17. 


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101  ATIiANTIO  RSIPOBTBB 


RHODE  IS]LAin>— Supreme  Court. 
O.  FRANK  FARKHURST,   Chuf  JuaTio, 
ABSOCiATB  JirsTicas. 
WILLIAM  H.  SWEETTLAND. 
WALTER  B.  VINCENT. 
DARIUS  BAKER. 
CHARLRS  F.  STBARNa 


VERMOITT— Supreme  CourL 
JOHN  HENRT  WATSON,  ChibV  JVaiKOk 

AS80CUTB   JUSTICSS. 

SENECA  HA8ELTON. 
QEORGE  M.  POWERS. 
WILLIAM  H.  TAYLOR. 
WILLARD  W.  UUJQB. 


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CASES  REPORTED 


Abrams.   ISrana   MarMe  Go.  of  Baltimore 

City  ▼.  (Md.) 964 

Acamiiora   v.    Warner   (Cono.) 832 

AdehDan,  SoiiHiiers  t.  (Conn.)  7 

Adleman  t.  Ocean  Accident  A  Guarantee 

Corp.  CMd.) B29 

Adrian,  In  re  (N.  J.  Prerog.) 52 

Agricultural  Soc.  of  Montgomery  Countar  y. 

State  (Md.) 139 

Ahrena  v.  KeUy  JN.  J.  Oh.) 571 

Ains  V.  Hayes  (Conn.) 570 

Alexander  t.  Amwiean  Exp.  Oo.  (Pa.)....  1060 

Allen  V.  Scheib  (Pa.) 102 

Altoona  &  L.  V.  Electric  R.  Co.,  Hicks  y. 

(Pa.)  969 

AmerKan    Colonization    Soc.,    SouUiby    y. 

(Md.)    780 

American  Exp.  Co.,  Alexander  y.  (Pa.)  . . .  .1050 

American  Exp.  Co.,  Dionne  y.  (Vt.) 209 

Americ«n  Exp.  Co.,  Scott  v.  (Fa.) 9ti 

American  Piano  Co.  v.  Knabe  (Md.) 680 

American  Steriliser  Co.,  >Iayer  Bros.  Const. 

Co.  V.  (Pa.) 1002 

Anderson,  Bensel  y.  (N.  J.) 262 

Anderson  y.  Nelson  (R.  I.) 136 

Antliracite  Beer  Co.,  Pennsylvania  Cent. 

Brewing  Co.  v.  (Pa.) 925 

Arcade  Real  Estate  Co..  Hayes  v.  (Pa.)  ...  850 
Arlington  Hotel  Co.,  Joan  W.  Oooney  Co.  v. 

(Del.  Ch.)   879 

Arliss,  Gondit  Be^  Sc  Provision  Co.  y.  (N. 

J.  Ch.)  172 

Armbrecht  y.  Delaware,  L.  &  W.  B.  Co. 

(N.  J.) 203 

Arthur  &  Boyle  y.  Morrow  Bros.  (Md.). . . .  777 

Ashby  y.  Butz  (Pa.) 318 

Atlantic  City,  Fennan  v.,  five  cages  (N.  J.)1054 
Atlantic  Coast   Electric   R.    Co.    v.    State 

Board'  of  l^axes  and  Assessments  (N.  3, 

Sup.) 64 

Automobile  Finance  Co.,  Scully  y.  (Del.  Gh.)  908 

Babayan  v.  Reed  (Pa.) 839 

Baer  v.  Kahn  (Md.) 506 

Baiz  v.  Coro  &  La  Vela  R.  &  Imp.  Co.  (N. 

J.  Ch.) 395 

Baker,  Clark  v.  (Conn.) 9 

Baker  y.  Roshford  (Vt.) 769 

Baldwin,  Blue  Ribbon  Garage  y.  (Conn.). .     83 

Baldwin  y.  Corbin  (Conn.) 834 

Baliman,  Gischell  v.  (Md.) 698 

Baltimore  County  0>m'rB,  Ludwig  y.  (Md.)  695 

Baltimore  &  O.  R.  Co.  v.  Owens  (Md.) 605 

Bangor  Power  Co.,  Stairs  v.  (Me.) 206 

Baneor  Ry.  &  Electric  Ck>.,  McKinnon  y. 

(Me.)    452 

Barre    Granite   &  Quarry    Co.,   Corry   y. 

(Vt) 88 

Barrett,  Hardie  y.  (Pa.) 75 

Barton  y.  Swainson  (Md.) 607 

Beacbey  v.  Heiple  (Md.) 653 

Beall  y.  Kew  York  &  New  Jersey  Water  Co. 

(N.  J.  Ch.) 676 

Beaver  Trust  Co.,  Brookville  Title  &  Trust 

Co.  y.  (Pla.) 944 

Bedier  v.  Frederick  W.  Llppe  Co.  (Md.). . .  783 

B«cker,  Seitsinger  y.  (Pa.) 650 

Beltz,  Williams  v.  (Del.  Super.) 905 

Bensel  v.  Anderson  (N.  J.) 262 

Berberich's  Estate,  In  re  (I'a.) 401 

BergdoU's  Ebtate,  In  re  (Pa.) 950 

Bergen  v.  Trimble  (Md.) 137 


Pas* 
Bernard  v.  Whitefleld  Tanning  Oo.  (N.  H.)  489 

Betterly  v.  Brattleboro  St.  BiOo.  (Vt.) 441 

Betts  y.  Massachusetts  Bonding  &  Insur- 
ance Co.  (N.  J.). 267 

B.  H.  Gladding  D17  Goods  Co.,  IficGinn  y. 

CR.  I.)  129 

Bickford,  Spofford  v.  (Me.) 470 

Bickley  v.  Philadelphia  &  B.  B.  Co.  (Pa.). .  664 

Bixler  v.  Swartz  ^a.) 647 

Black  v.   Eastern   Pennsylvania  Bys.  Co. 

(Pa.) 644 

Bfouin  V.  Greene  (Vt) 443 

Blue  Ribbon  Garage  v.  Baldwin  (Conn.) ...  83 
Board   of  Chosen  Freeholders  of  Atlantic 

County.  Dolker  v.  (N.  J.) S70 

Board  of  Chosen   IVeehoiders  of  Atlantic 

County,  Godfrey  v.  (N.  J.) 67 

Board  of  Chosen  Freeholders  of  ESssex  Oonn- 

ty,  DarviUe  v.  (N.  J.) 276 

Board  of  Chosen  Freeholders  of  Esses  Coun- 
ty, Kelly  v.  (N.  J.  Sup.) 422 

Board  of  Com'rs  of  Margate  City,  Horner 

v.  (N.  J.  Sup.)  868 

Board  of  Conservation  and   Developmoit, 
Society  for  Eistafalishlng  Useful  Manufac- 

tures  V.  (N.  J.  Sup.)  1025 

Board  of  Education  of  Bayonne,  Scbwarz- 

rook  y.  (N.  J.  Sup.)  394 

Board  of  Fire  Conors  of  City  of  Newark, 

Durkin  v.  (N.  J.) 1053 

Board    of   Police    Com'rs   y.    McClenehan 

(Md.)   786 

Board  of  Public  Utility  Com'rs,  New  York, 

S.  &  W.  R.  Co.  y.  (N.  J.  Sup.) 49 

Boehmv.  Boehm  (N.  J.  Gh.) 423 

Bolden  v.  Greer  (Pa.) 816 

rtonaparte  v^  Baltimore  (Md.) 694 

Bonee,  De  Wolf  V.  (Conn.) 233 

Bookwalter  v.  Mt  Union  (Pa.) 953 

Border  City  Garnetting  Co,  Rowe  v.  (R.  1.)  223 
Borough  of  Dumont,   Whitaker  y.   (N.  J. 

Sup.)    661 

Borough  of  Haddon  Heights  y.  Hunt  (N.  J. 

Sup) 427 

Borough  of  Hollidaysburg  v.  Snyder  (Pa.)  955 
Borough  of  Huntingdon  v.  Huntingdon  Wa- 
ter Supply  Co.  (Pa.) 989 

Borough  of  Mt.  Union,  Bookwalter  v.  (Pa.)  953 

Borst,  Jersey  City  v.  (N.  J.  Sup.) 1033 

Boston  &  M.  R.  R.,  Clark  v.  (N.  H.) 795 

Boston  &  M.  R.  B.,  C<W8waU  v.  (N.  H.)  ...  145 
Boston  &  M.  R.  R.  v.  c5oncord  (N.  H.). . ...  663 
Boston  &  M.  R.  R.,  Sanderson  v.  (Vt). .     40 

Boston  &  M.  R.  R.  v.  State  (N.  H.) 663 

Boston  &  M.  R.  R.  v.  Union  Mut  Fire  Ins. 

Go.    (Vt.) 1012 

Bougie,  Sherburne  y.  (Me.) 355 

Bouquet  v.  Hackensack  Water  C!o.  (N.  J.)  379 

Bradford  v.  Mackenssie  (Md.) 774 

Brady  v.  Baltimore  (Md.) 142 

Branigan    v.    Lederer   Realty   Corp.,   two 

cases  (B.  IJ 122 

Brattleboro  St  R.  Co.,  Betterly  v.  (Vt). . .  441 

Breidt  Brewing  Co.  v.  Weber  (N.  J.) 382 

Brennaa,  Commonwealth  v.  (Pa.)  947 

Bricklayers',  Masons'  &  Plasterers'  Local 
Union  No.  1,  Cohn  &  Roth  Electric  Go.  v. 

(Conn.) 659 

Bringbnrst,  Perkins  v.  (Del.  Super.) 4.3S 

BrinRhurst  8  Kstate,  In  re  (Pa.) 7(56 

Brink  V.  Flannagen  (N.  J.) 274 

Bristol  Patent  Leather  Co^  Wright  y.  (Pa.)  844 


101  A. 


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TiU 


101  ATLANTIO  KBPOBTBB 


Page 
Brock,  Rolllna  v.  (N.  H.) 636 

BrookviUe   Title   &   Trust   Oo.   v.   Beaver 

Trust  Co.  (Pa.) 944 

Brotherhood    Accident    Ca,    Bulkeley    y. 

(CkMin.)    92 

Brown,  Cox  v.  (N.  J.  Oh.) 260 

Brown,  Kine  v.  (N.  H.) .- 627 

Brown,  Kuehne  v.  (Pa.). 77 

Brown,  Lafouotain  &  WoolMn  Co.  t.  (Yt)    86 

Browne  t.  Park  Cemeter;  (N.  H.) 34 

Brunetti,  Grand!  v.  (N.  J.) 1054 

Brunsman  t.  Crook  (Md.) .1019 

Bucher  y.  Federal  Baseball  Club  of  Balti- 
more (Md.) 634 

Bulkeley     v.     Brotherhood     Accident    Co. 

(Conn.) 92 

Bupp  y.  Kleitz  (Del.  Ch.) 878 

Burgess  Jc  Town  Council  of  Borough  of 
Cliiunl«!i-sburg  v.  Chambersburg  &  G.  Elec- 

Uic  a  Co.  (Pa.) 922 

Burlington  County  Farmers'  Ezch.,  Stuart 

y.  (N.  J.) 265 

Bums,  Gallon  y.  (Conn.) 504 

Burr  y.  Ellis  (Conn.) 17 

Butler  y.  Butler  (R.  I.) 115 

Butler  y.  Flint  (Conn.) 19 

Butterfield,  Woodman  v.  (Me.) 25 

Butz,Ashby  V.  (Pa.) 318 

CahiU  y.  West  Hoboken  (N.  J.  Sup.) 417 

Campbell,  Lansing  v.  (R.  t.) 1 

Camaggio  y.  Chapman  (Md.) 672 

Carpenter  y.  Carpenter  (N.  H.) 628 

Carr  v.  Cranston  Print  Works  Co.  (B.  I.)  120 

Carr,  HUl  v.  (N.  H.)  525 

Carson  y.  Scully  (N.  J.) 2S9 

Carson  v.  Scully,  two  cases  (N.  J.) 295 

Carson,  Wood  y.  (Pa.)  811 

Carter  y.  Rowe  (Conn.) 491 

Carter  y.  Suburban  Water  Co.  (Md.) 771 

Carville  v.  Lane  (Me.) 968 

Castelli,  State  y.  (Conn.) 476 

Cavalry  Club  of  Rhode  Island,  Richards  y. 

(R.L)    222 

Caveny  v.  Curtis  (Pa.) 853 

Cecil  Hochscbild  v.  (Md.) 700 

Central  R.  Co.  of  New  Jersey,  Collins  y. 

(N.  J.)  287 

Central  R.  of  New  Jersey,  Rounsaville  v. 

(N.  J.)  182 

Central  Vermont  JR.  Co.,  Howe  v.  (Vt.) 45 

O.  Q.  Gawthrop  Co.  y.  Fibre  Specialty  Co. 

(Pa.) 760 

Chamberlain's  Estate,  In  re  (Pa.) 814 

Chambersburg  &  G.  Electric  R.  Co.,  Bur- 
gess &  Town  Council  of  Borough  of  Cham- 
bersburg V.  (Pa.) 922 

Chance   Marine    Const.    Co.,    Cromwell    y. 

(Md.)    623 

Chandler,  Edmonds  y.  (Pa.) 459 

Chapman,  Carnaggio  y.  (Md.) 672 

Chappell,  Newport  Trust  Co.  y.  (R.  I.)  ...  323 
Charles  Krucben  Co.  v.  Paterson  (N.  J.)..  254 

Chellis  V.  Cole,  two  cases  (Me.) • 444 

Chelten  Trust  Co.,  Schwehm  y.  (Pa.) 93 

Chesapeake  &  Potomac  TeL  Co.  of  Balti- 
more City,  City  of  Baltimore  y.  (Md.). . . .  677 

Chew  y.  Philadelphia  (Pa.) 915 

Christie's  Estate,  In  re  (N.  J.  Prerog.). ..     64 
Christy  y.  New  York  Cent  &  H.  B.  R.  Ca 

(N.    J.) 372 

Church,  Whitney  Co.  y.  (Conn.) 329 

City  of  Baltimore,  Bonaparte  v.  (Md.) 594 

City  of  Baltimore,  Brady  y.  (Md.) 142 

City  of  Baltimore  v.  Chesapeake  &  Potomac 

'    Tel.  Co.  of  Baltimore  City  (Md.) 677 

City  of  Baltimore,  Patterson  v.  (Md.) 689 

City  of  Baltimore  y.  Scott  (Md.) 674 

City  of  Barre,  Collins  v.  (Vt.) 43 

City  of  Carbondale,  Schmitt  v.  (Pa.) 755 

City  of  Concord,  Boston  &  M.  R.  R.  y.  (N. 

H.)   6e.<l 

City  of  Concord,  Town  of  TUton  y.  (N.  H.)  144 

City  of  Erie,  Appeal  of  (Pa.) 996 

City  of  Keene,  Leslie  v.  (N.  H.) 661 


Face 
CSty  of  Newark,  New  York  TeL  Oo.  T.  (N. 
J.  Sup.) 891 

City  of  New  Haven,  Hott  y.  (Conn.) 498 

City  of  New  Hayen,  Town  of  Hamden  y. 

(Conn.)    11 

City  of  Paterson,  Charles  Krucben  Co.  t. 

(N.    J.) 254 

City  of  Paterson,  Duflfy  y.  (N.  J^ 416 

City  of  Paterson,  Koettcgen  v.  (N.  J.)  ....  268 
City  of   Paterson,   Riverside  Turn   Verein 

Harmonie  v.  (N.  J.) 254 

City  of  Philadelphia,  Chew  y,  (Pa.) 916 

City  of  Philadelphia  y.  Conway  (Pa.) 472 

City  of  Pittsburgh,  Stanton  v.  (Pa.) 822 

City  of    Wilkea-Barre,    Commonwealth    y. 

(Pj^\ j^ ^  ^  ^  929 

City  of  Wilkra-Barre,' ReiUy' v.' (Pa.)* '.'.'.'.'.'.  954 

Clark  y.  Baker  (Conn.) 9 

Clark  y.  Boston  &  M.  R.  R.  (N.  H.) 796 

Clark  y.  Clark  (N.  J.  Ch.) 300 

Cleaver,  Morgan  v.  (Md.) 610 

Oements,  Loeblein  y.  (Md.) 693 

Clifford,  Farnham  v.  (Me.) 468 

Clinton  Iron  &  Sted  Co.,  Pittsburgh  &  L. 

E.  R,  Co.  y.  (Pa.) 1048 

Cloud,  Stiles  &  Work  v.  Williams  (Pa.). ..  732 
Coast  &  Lakes  Contracting  Corp.  y.  Martin 

(Conn.) 502 

Coatesville  Boiler  Works,  Ruger  y.  (Pa.). . .  639 
Coatesville  Boiler  Works,  Setter  y.  (Pa.)..  744 
Cogswell  y.  Boston  &  M.  R.  R.  (N.  H.)...  146 
Cohn  &  Roth  Electric  Co.  v.  Bricklayers', 

Masons'  &  Plasterers'  Local  Union  No.  1 

(Conn.)    650 

Cole,  Chellis  y.,  two  cases  (Me.) 444 

Collins  V.  Barre  (Vt.) 48 

Collins  V.  Central  R.  Co.  of  New  Jersey 

(N.  J.)  287 

Commercial  Casualty  Itia.  Co.  of  Newark, 

Gross  V.  (N.  J.)  ..,.., 180 

Commissioners  of  Palisades  Interstate  Parl^ 

Ross.  y.  (N.  J.  Sup.) 60 

Common wealtli,  Appeal  of  (Pa.) 316 

Commonwealth,  Appeal  of  (Pa.) 840 

Commonwealth,  Appeal  of  (Pa.), 1062 

Commonwealth  v.  Urennan  (Pa.) 947 

Commonwealth  y.  Haines  (Pa.). . .' 641 

Commonwealth,  Jooa  v.  (Pa.) 464 

Commonwealth  v.  Keystone  Graphite  Co. 

(Pa.)    766 

Commonwealth  y.  Koontz  (Pa.) 863 

Commonwealth  y.  Lapriesta   (Pa.) 637 

Commonwealth  y.  Mamatey  (Pa.) 731 

Commonwealth .  y.  Matter  (Pa.) 649 

Commonwealth  y.  Miller  (Pa.) 1006 

Commonwealth  y.  Reese  (Pa.).... 949 

Commonwealth,  Saeger  y.  (Pa.) 999 

Commonwealth  y.  Scherr  (Pa.) 940 

Commonwealth  y.  Schwartz  (Pa.) 90 

Commonwealth  y.  Staush  (Pa.) 72 

Commonwealth    v.     Verhovay    Aid    Ass'n 

(Pa.)  03i 

Commonwealth  y.  Wilkes-Barre  (Pa.). ....  920 
Commonwealth  Trust  Co.,  Lebanon  valley 

ConsoU  Water  Supply  Co.  v.,  (Pa.) 6S0 

Condit  Beef  &  Provision  Co.  y.  Axliss  (N. 

J.  Ch.)  172 

Connecticut  Co.,  Ott  y.  (Conn.)  486 

Connecticut  Co.,  Turner  y.  (Conn.) 88 

Connecticut    River    Power    Co.    of    New 

Hampshire,  Spencer  y,  .(N.  H.) 628 

Connell,  Edelman  v.  (Pa.) 658 

Conway,  City  of  Philadelphia  y.  (Pa.) 472 

Conway's  Estate,  In  re  (Pa.) 652 

Coombs  V.  Fessenden  (Me.) 466 

Cooney  v.  Rushmore  (N.  J.) 1053 

Cooney   Co.   V.  Arlington   Hotel  Co.  (Del. 

Ch.)    870 

Corbin  v.  Baldwin  (Conn.) 834 

Oordano.  Appeal  of  CC?nn.) 85 

Core  &  La  Vela  B.  &  Imp.  Co.,  Baiz  r.  (N. 

J.  Ch.)  305 

Corry  v.  Barre  Granite  &  Quarry  Co.  (Vt)  38 
Cosmos  Building  &  Loan  Ass'n  y.  Courte- 

nay  (Pa.) 816 


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Pas* 
Conrteaay,  Ooamoi  BulIdiiiK  ft'Ioan  An^n 

V.  CPaO   818 

Cox  T.  Brown  (N.  J.  Ch^ 260 

Cramer,  PeopJe'a  Nat.  Bank  v.  (N.  J.)". ...  204 
Cranston  Print  Works  Co.,  Carr  t.  (B.  I.)  120 

Crockett,  Lemaire  v.  (Me.) 802 

GromweU    t.    Chance   Marine   Omst.    Co. 

(Md.)    623 

Crook,  BrunBman  v.  (Md.) 1010 

Cropaey  v.  Cropaey  (N.  J.  Ch.) 175 

CroBsley,  KitcheU  v.  (N.  JO   179 

Crown  Garage  Ca,  Cartis-Xoang  Co.  v.  (R. 

I.)  136 

Croeer's  Estate,  In  re  (Pa.) : . . .  801 

Oillen  T.  Stoutth  (Pa.) 937 

Camberland   County  Power  &  Light  Co., 

Tnttle  V.  (Me.) 461 

Conningbam,  Ireson  y.  (N.  J.) 49 

Curtis.  Careny  y.  (Pa.) 853 

Curtis,  TibbetU  v.  (Me.) 1023 

Curtis.  Vide  y.  (Me.)  966 

Curtis- Young   Co.   y.   Crown   Garage   Co. 

(EL  I.) 7. 136 

Da  Gama  y.  IVAquila  (N.  3.  Ch.) 1028 

Daly  y.  Garven  (N.  J.);. 272 

D'Aquila,  Da  Gama  y.  (N.  J.  Ch.) 1028 

DaryiUe  y.  Board  of  CJhosen  Freeholders  of 

Essex  County  (N.  J.) 275 

Dashiff,  Schwartz  y.  (ponn.) 680 

Dayenhill,  Ewalt  V.  (Pa.) 756 

Dayis,  Mills  y.  (Cons.) 667 

Dayis,  State  y.  (MeJ 208 

Ddaware,  L.  &  W.  K.  Co.,  Armbrecht  y.  (N. 

J.)     203 

Delaware^  I<.  &  W.  R.  Co.,  L'Hommedien 

y.  (Pa.)  933 

Delaware,  L.  &  W.  B.  Co.,  Sprotte  y.  (N. 

J.) 618 

Delaware,  L.  &  W.  R.  Co.,  Stone  y.  (Pa.). .  813 
Delaware,  U  &  W.  R.  Co.,  ZeneU  y.  (Pa.)  809 
Delaware  &  Hudson  Co.,  Griffin  y.  (Pa.)  . .  750 

DelemoR,  Mereness  y.  (Conn.) 8 

De  liukacsevics  y.  De  liukacsevlca  (N.  J. 

Ch.)    407 

Department  of  Health  of  New  Jersey  t. 

Monheit  (N.  J.  Sup.) 413 

D'Espard  y.  Fritz  Schuiz  Junior  Co.  (N. 

J.  Ch.)  178 

D'Espard,  Posselt  y.  (N.  J.  Oh.) 178 

De  Wolf  y.  Bonee  (Conn.) 233 

De  Wyngaert,  Wiebke  y.  (N.  J.  Ch.) 410 

Dicus  y.  Dicns  (Md.)...^ 697 

Dionne  y.  American  Szp.  Co.  (Vt.) 209 

Disston's  Estate,  In  re  (Pa.) 804 

Dittman's  Bz'rs,  In  re  (N.  J.  Prerog.) 66 

Doberty  v.  Russell  (Me.) 306 

Dolker  y.  Board  of  Chosen  Freeholders  of 

Atlantic  County  (N.  J.) 870 

Donnell,  Lembo  y.  (Me.) 469 

Dooling,  Appeal  of  (Pa.) > 314 

Doremns,  Wolcott  y.  (DeL  Oh.) 868 

Donia  y.  Lyoo  (Conn.) 490 

Doten,  Smith  y.  (Me.) 1058 

Dougherty  y.  Philadelphia  Rapid  Transit 

Co.  (Pa.)  844 

Downs,  MeNemey  y.  (Conn.) 494 

Da  Boi%^  Hammond  y.  (Md.) 612 

DnS  y.  Pmdendal  Ina-.  Co.  ot  America  (N. 

J.)  871 

T>ati  y.  Paterson  (N.  J  J 416 

Du  PoBt  De  Nemours  Powder  Co.  y.  Spo- 

ddio  (N.  J.  Sup.) 407 

Dnrkin  y.  Board  of  Fire  Oom'rs  of  City  of 

Newark  (N;  J.) 10B3 

Eastern  Peunsylyanta  Rya.  Co.,  Black  y. 

(Pa.)    644 

Eastman.  Vermont  Marble  Co.  y.  (Vt). . . .  161 
Easton  Transit  Co.,  Township  at  Wilson 

y.   ff'a.)  983 

JEJast  Ridgelawn  Cemetery,  PaRsaic  Trust  & 

Safe  Deposit  Co.  y.  (N.  J.  Ch.) 1026 

Eberling  y.  MntlUod,  two  cases  (N.  J.)...  619 
Ediazd.  ManteU  y.  (Va.) 1049 


Pace 

Eckert  y.  Wc«t  Orange  (N.  J.) 260 

Edelman  y.  CkvinelllPa.) 663 

Edison,  Inc.,  Orillo  y.  JN.  J.) 171 

Edmonds  y.  Chandler  (Pa.) 459 

Edwards,  MaxweU  y.  (N.  J.) 248 

Edwards  y.  Petry  Q?.  J.) 105 

Edwards,  Security  Trust  (3o.  y.  (N.  J.) . . . .  383 

Edwards,  Security  Trust  Co.  y.  (N.  JJ 384 

E.  I.  Du  Pont  De  Nemours  Powder  Co.  v. 

Spocidio  (N.  J.  Sup.) 407 

Eiseie  y.  Raphael  (N.  J.) 200 

Elk  Tanning  Q).,  Frite  y.  (Pa.) 958 

EUeford,    Handel   A   Haydeu   Building   & 

Loan  Ass'n  y.  (Pa.) ,  951 

EUiott  y.  Jones  (DeL  Ch.) 872 

EUiott  y.  Jones  (Del.  Ch.) 874 

BUis,  Burr  y.  (Conn.) 17 

Ellis  y.  Pennsylyania  R.  Ca  (N.  J.  Sup.)  416 

EJmery,  Staples  y.  (Me.) 721 

Equitable  Trust  0>.  v.  Kent  (Del.  Ch.)..  876 
Erie  County  Pomona  Grange  No.  4-  y.  Wales 

(Pa.)   998 

Brie  B.  Co.,  Malone  y.  (N.  J.  Sup.) 416 

Erie  R.  Co.,  Materka  y.  (N.  J.  Sup.) 69 

Erie  R.  Co.,  Stamford  Rolling  Mails  Co.  y. 

(Pa.^   823 

EispoBito  y.  Tammaro  (Conn.) 23 

Estabrooks  y.  Estabrooks  (Vt.) 584 

Eugster  y.  Eugster  (N.  J.  Ob.) 575 

Eyans   Marble   Co.   ot  Baltimore   City   y. 

Abrams  (Md.) 064 

Ewalt  y.  Dayenhill^a.) 766 

Fague  y.  Lee  (R.  L) 7 

Fairview  Deyelopment  Co.  y.  Fay  (N.  J. 

Sup.) 406 

Fairview  Heights  Cemetery  Ca  y.  Fay  (N. 

J.  Sup.) 406 

Ftomers'  4  Miners'  Trust  Oa,  Beynolds- 

yille  Water  Co.  y.  (Pa.) 800 

Farnham  y.  Clifford  (Me.) 468 

Famum  y,  Pennsylyania  Ca  for  Insurance 

on  Liyee,  Etc.  (N.  J.) 1053 

Farrand,  Rankin  y.  (Me.) 833 

Fay,  Fairview  Deydopment  Go.  y.  (N.  J. 

SnpO    406 

Fay,  Fairview  Heights  Ometery  Ca  y.  (N. 

J.  Sup.)  406 

Federal  Baseball  Club  of  Baltimore,  Bucher 

V.  (Md.) 634 

Fennan  v.  Atlantic  City,  five  cases  (N.  J.)  1064 

Fessenden,  Coombs  y.  (Me.) 466 

Feussner   y.   Wilkes-Barre   &   H.   R.   Co. 


(Pa.) 
Mbr    - 


Fibre  Specialty  Co.,  C.  G.,  Uawthrop  Oa  y, 

(Pa.) 760 

Fidelity  Trust  Co.  of  Baltimore,  Md.,  Sum- 
mit Silk  Co.  y.  (N.  J.  Ch.) 678 

Fiedler  V.  Parmly  (N.  J.  Sup.) 891 

Finkelman,  Maine  Mill  Supply  Co.  y.  (Me.)  833 

First  Nat  Bank  v.  Parker  (N.  J.) 276 

Fisdier  y.  Taylor  (Pa.) 818 

Fisher,  Medoff  y.  (Pa.) 471 

Fisher  y.  T.  W.  Griffith  Realty  Oa  &(.  J. 

Oh.) 411 

Fisher,  Wills  y.  (Pa.) ,.  818 

Fitzgerald,  Rose  v.  (N.  J.) 202 

Flanagan,  Appeal  of  (Pa.). 7<J6 

Flannagan,  Brink  v.  (N.  J.) 274 

Flather  Foundry  Co.  v.  Murphy  (N.  H.)...  357 

Fletcher,  State  v.  (N.  J.) 181 

Flint,  Butler  v.  (Conn.) 19 

Flusser,  Hirscbberg  y.  (N.  J.  Ch.) 191 

Flynn  y.  New  York,  S.  &  W.  R,  Co.  (N.  J. 

Sup.)   1084 

Foote,  Massey  y.  (Conn.) 499 

Ford  v.  Lehigh  &  Wilkes-Barre  Coal  Co. 

(Pa.)  958 

Forte  ▼.  G.  B.  Markle  Co.  (Pa.) 941 

Ft.  Orange  Barberlng  Ca  y.  New  Haven 

Hotel  Cd.  (Conn.). . .  805 

Forty-Four  Cigar  Co.  Fox  y.  (N.  J.) 184 

Four   Ck)rners  Building  &   Loan   Ass'n  of 

Newark  v.   Schwarzwaelder   (N.  J.  Oh.)  564 
Fox  y.  Fort^-Four  Cigar  Ca  (N.  JJ 184 


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Facet 
Fox  Cihase  Bank  v.  Wayne  Jnnction  Trust 

Co.  (Pa.)  9T9 

Franklin    Paper   Mills   Co.,    Stratford    t. 

(Pa.) 849 

Fraser  v.  Fraser  (N.  J.) 58 

Frederick  W.  Lippa  Co.,  Becker  t.  (Md.J . .  783 
Freeman  y.  Van  Wajenen  (N.  J.  Sup.) . .  55 
French  &  Son,  Limpert  Bros.  t.  (N.  J.) . . . .  263 

Frey,  McNeUl  v.  (R.  I.) 7 

Fritz  V.  Blk  Tannine  Co.  (Pa.) 958 

Fritz  Sdiulz  Junior  Co.,  D'Espard  ▼.  (N.  J. 

Ch.) 178 

Fulton  County  Bank  t.   Swope  (Pa.)....  956 
FuBco  Const  Co.,  Title  Guaranty  &  Sure- 
ty Co.  t.  (N.  J.) 248 

Gaffney  t.  Illingsworth  (N.  J.) 243 

Gagne  ▼.  Massachusetts  Bonding  ft  Insur> 

ance  Co.  (N.  H.) 212 

Qagnon  y.  Rhode  Island  Co.  (R.  I.) 104 

Gallon  ▼.  Bums  (Conn.) 604 

Oamsey  ▼.  Garnsey  (Me.) 447 

Garven,  Daly  v.  (N.  J.) 272 

Gaulin,  Marands  t.  (R.  I.) 321 

Gawthrop  Co.  v.  Fibre  Specialty  Co.  (Pa.)  760 

G.  B.  Maritle  Co.,  Forte  t.  (Pa.) 941 

Geissler  v.  Lauther  (Pa.) ft48 

Gelssler  t.  Reading  Trust  Go.  (Pa.) 797 

Geloso,  Rochester  Distilling  Co.  ▼.  (Conn.)  500 

George,  Gromer  r.  (N.  J.) 263 

Getchell,  Reddington  t.  (U.  10 1^ 

Gllroy,  Appeal  of  (Pa.) 632 

Girard  Trust  Co.,  Appeal  of  (Pa.) 311 

Gischell  v.  Ballman  (Md.) 698 

Gladding  Dry  Goods  Co.,  McGinn  v.  (B.  I.)  129 

Gluckman's  Will,  In  re  (N.  JJ 295 

Godfrey  y.  Board  of  Chosen  Freeholders  of 

Atlantic  County  (N.  J.) 67 

Godstrey,  Nell  y.  (N.  J.) 50 

Goldstein  y.  Goldstein  VN.  J.) 249 

Gould,  Rosenzwog  y.  ^d.) 665 

Graham,  Harroun  y.  (Pa.) 985 

Grand  Fraternity,  Appeal  of  (Pa.) 1000 

Grandi  y.  BrunettI  fN.  J.) 1054 

Great  Eastern  Casualty  Co.,  Wells  y.  (R.  I.)      6 

Greenbaum,  Wame  y.  (N.  J.  Cb.) 568 

Greene,  Blouin  y.  (Vt.) 443 

Greene,  sfatersyille  Finishing  Co.  y.  (B.  I.)  226 

Greer,  Bolden  y.  (Pa.) 816 

Griffin  y.  Delaware  &  Hudson  <3o.  (Pa.). ..  750 
Griffith  Realty  Co.,  Fisher  y.  (N.  J.  Ch.)..  411 
Grillo  V.  Thomas  A.  Edison,  Inc.  (N.  J.J. .  171 
Gring,  Sinking  Spring  Water  Ck).  y.  (Pa.). .  732 

Gromer  y.  George  (N.  J.) 263 

Gross  y.  Commercial  Casualty  Ins.  Co.  of 

Newark  (N.  J.) 169 

Guarrala   y.    Metropolitan    Life    Ins.   Co. 

(N.  J.)  298 

Guarrala   v.    Metropolitan   Life    Ins.    Co. 

(N.  J.)  300 

Gude  Co.,  New  York  y.  Newark  Sign  Co. 

(^    j\ 332 

Qm  Reiining  Co.,  Washington  V.  (Pa.) ".'.".  .317 

Hack  y.  Shoylin  (Pa.) 956 

Hackensack  Water  Co.,  Bouquet  y.  (N.  J.)  379 
Hahne  &  Co.,  Robt.  H.  lugersoll  Se  Bro.  t. 

(N.  J.  Ch.)... 1030 

GUiines,  Commonwealth  y.  (Pa.) 641 

Baines  Home  for  A^ed  People  y.  Keene  (N. 

J.    Ch.) 612 

Hallstead,  Appeal  of  (Pa.) 758 

Halpren,  Perkins  y.  (Pa.) 741 

Hamilton  CVtrp.  y.  Julian  (Md.) 558 

Hammond  y.  Du  Bois  ()Id.) 012 

Hammond  y.  Hammond  (Pa.)'. 855 

Hancock,  Appeal  of  (Pa.) 934 

Handel  &  Hayden  Building  &,  Loan  Ass'n 

y.  EUeford  (Pa.) 951 

Hanigan  y.  Philadelphia  &  R.  R.  Co.  (Pa.)  640 

gardle  y.  Barrett  (Pa.) 78 
arford  County  Com'rs,  Postal  Telegraph 

Cable  Co.  y.  (Md.) 600 

Harleigh-Brookwood    Coal    (!!o..    Mountain 
CSty  Water  Co.  at  FnckylUe  t.  (Pa.). ..  734 


Harper  t.  FhiladdpUa  Bapld  Tntiudt  Go. 

(Pa.)   1004 

Harroun  y.  Graham  (Pa.) 986 

Hart,  State  T.  (N.  J.) 278 

Hayes,  Alns  y.  ((>>nn.) 579 

Hayes   y.    Arcade   Real   Estate  Co.   (Pa.)  850 

Heiple,  Beachey  y.  (Md.) 663 

Henderson  y.  Henderson  (Md.) 601 

Henschke  y.  Moore  (Pa.) 308 

Henschke  y.  Moore  (Pa.) 311 

Heyniger  y.  Leyinsohn  (N.  J.  Ch.) 188 

Hicks  y.  Altoona  &  L.  V.  Electric  R.  Ca 

(Pa )  •      969 

Hill  ▼.  darr*  (N.'S.)**.*.'*.*.".*.*.'.'.'.'.".'.'.*!!  625 

HIU  y.  Keezer  (Me.) 856 

Hilliard,  Wilson  y.  (Md.) '.  603 

Hirschberg  y.  Flusser  (N.  J.  Ch.) 191 

HochschUd  y.  Cecil  (Md.) 700 

Hoen  y.  KixU  (Md.) 782 

Hoff  y.  Public  Service  R.  Co.  (N.  J.  Sup.)  404 

Hoffmann,  In  re  (Pa.) ....1052 

Hogsett  y.  Thompson  (Pa.) 941 

Hogsett  y.  Thompson  (Pa.) 844 

Home  Ins.  Oo.  of  New  Tork,  Swiller  ▼. 

(N.  J.)  616 

Rome  Life  Ins.  Co.  of  America,  Kingston 

y.  (Del.  Ch.) 893 

Hop,  State  y.  (N.  J.  Sup.) 381 

Hope  y.  Kelley  (Pa.) 978 

Homer  y.  Board  of  Com'rs  of  Margate  Cit7 

(N.  J.  Sup.) 368 

Hott  y.  New  Haven  (Conn.) 498 

House  of  Good  Shepherd  in  City  of  Phila- 
delphia, Appeal  of  (Pa.) 817 

Howe  y.  Ontral  Vermont  E.  Oo.  (Vt)....     45 

Hubbard  v.  Hubbard  (Md.) 772 

Hnber,  Jersey  City  y.  (N.  J.) 378 

Huddy's  Estate,  In  re  (Pa.) 818 

Hudson  &  M.  B.  Co.,  Jersey  City  v.  (N.  J.)  266 

Hughes  y.  Hurley  (N.  J.  Ch.) 197 

Humphrey  y.  Wheeler  (Vt) .• . .  .1018 

Hunt,  Borough  of  Haddon  Hdghta  t.  (N. 

J.  Sup.)_ 427 

Hunter's  Estate,  In  re  (Pa.) 79 

Huntingdon  Water  Supply  Ca,  Borough  ot 

Huntingdon  y.  (Pa.) 989 

Hurley,  Hughes  y.  (N.  J.  Ch.) ^ 197 

Illingsworth,  Gaffney  y.  (N.  J.) 243 

Illinois   Finance   Co.  y.   Interstat*  Rural 

Credit  Ass'n  (Del  Ch.) 870 

Improved  Building  &  Loan  Ass'n  r.  LaiUn 

(N.  J.  Ch.) , 1043 

Ingersoll  &  Bro.  v.  Hahne  &  Co.  (N.  J. 

Ch.)   1030 

Inhabitants  of  City  of  Trenton,  Trsoton  & 

Mercer  County  Traction  Corp.  y.  (N.  J. 

Sup.)    663 

InhaDitants    of    Ewlng    Tp.<    Trenton    & 

Mercer  (3ounty  Traction  Corp.  ▼.  (N.  J. 

Ch.)    '   1037 

Inhabitants  of  Town  of  Leeda^  McCarthy 

v.,  two  cases  (Me.) 448 

International  Paper  Co.,  Zobes  y.  (Me.). ..  24 
Interstate  Rural  Credit  Ass'n,  IllinoiB  Fi- 
nance Co.  y.  (Del.  Cb^ 870 

Ireson  y .  (Cunningham  (N.  J.) 49 

Italian  Mut  Ben.  Soc.,  Steftanazsi  T.  (Vt)  1010 
Ivison's  Estate.  In  re  (^) 644 

Jackson  v.  Myers  (Pa.) 841 

Jefferson,  State  y.  (N.  J.). 569 

Jenkins,  Western  Nat  Bank  y.  (Md.)....  667 

Jcnkinson  y.  Parmly  (N.  J.  Sup.) 390 

Jennings,    Metropolitan    Life    Ins.   Co.   y. 

(Md.)   608 

Jerolamon  y.  Belleville  (N.  JJ 244 

Jersey  City  y.  Borst  (N.  J.  Sup.) 1033 

Jersey  City  y.   Ruber  (N.  J.) 378 

Jersey  City  y.  Hudson  &  M.  R.  Co.  (N.  J.)  206 

Jersey  City  y.  Thorpe  (N.  J.) 414 

J'ob    Haines    Home   for   Aged    People    v. 

Keene  (N.  J.  (Jh.) 612 

Johnson,  Messick  y.  (Del.  Ch.) 865 

Johnson,  Piatt  y.  (N.  J.  Ch.) 1035 


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Fact 

John  W.  Cooney  CSo.  r.  Arlington  Hotel  Oo. 

(DeL  Cb.)    879 

Jones,  ElUottT.  (Del.  Cb.) 872 

Jones,  EUiott  v.  (Del.  Ch.) 874 

Joes  ▼.  Commonwealth  (Pa.) 454 

Joseph   V.   Nnylor   (Pa.) 846 

Julian,  Hamilton  Corp.  ▼.  (Md.) 658 

Junk,  Prantl  v.  (N.  J.) 56 

Kahn,  Baer  ▼.  (KTd.) 596 

Kane,  State  v.  (Del.) 239 

Kane  Mfg.  Co.,  Wood  ▼.  (Pa.) 78 

Kannia,  Milford  Water  Co.  v.  (Conn.) 476 

Kazarian   Bros.  v.  Providence-Washington 

Ins.  Oo.  (R.  I.) 221 

Keeler,  Plum  Trees  Lime  Oo.  v.  (Conn.)..  609 
Keene,  Job  Haines  Home  for  Aged  People 

V.  (N.  J.  Ch.) 612 

Keezer,  Hill  v.  (Me.) 356 

Kelley,  Hope  t.  (Pa.) 978 

Kdly,  Ahrens  v.  (N.  J.  Ch.) 671 

Kelly  T.  Board  of  CSiosen  EYeehoIders  of 

Essex  County  (N.  J.  Sup.) 422 

Kelsea  v.  Phoenix  Ins.  Co.  (N.  H.) 362 

Kent,  Equitable  Trust  Co.  v.  (Del.  Oh.) 875 

Ketcham  v.  Land  Title  &  Trust  Go.  (Pa.). . .  764 
Keystone  Graphite  Co.,  C!ommonwealth  ▼. 

(Pa.)    766 

Kidd,  Hoen  v.  (Md.) 782 

King  V.  Brown  (N.  H.) 627 

King  V.  Thompson  (Me.) 724 

Kingston  V.  Home  Life  Ins.  Co.  of  Amer- 
ica   (Del.    Ch.) 898 

Kingston  t.  Wilson  (B.  I.) 109 

Kinney,  Rice  v.  (Pa.) 344 

Kiistein  v.  Philadelphia  &  B.  B.  (30.  (Pa.). .  838 

KiteheU  T.  Crosaley  (N.  J.) 179 

Kleitz,  Bupp  V.  (DeL  Ch.) 878 

Klemmer,  Frovident  life  &  Trust  Co.  ▼. 

(Pa.)   351 

Knabe,  American  Piano  Co.  t.  (Md.) 680 

Koenigsberger  y.  Mial  (N.  J.) 184 

Koettegen  t.  Paterson  (N.  JJ 253 

Koontz,  Commonwealth  t.  (Pa.) 863 

Konnan  v.  Trainer  (Pa.) 1051 

Kruchen  Co.  v.  Paterson  (N.  J.) 254 

Kaehne  ▼.  Brown  (Pa.) 77 

LacoBS  y.  Lebanon  (N.  H.) 864 

Ldfountain  &  Woolson  Co.  t.  Brown  (Vt)    36 

Lambert  v.  Vare  (S.  J.  Ch.) 726 

Land  Title  &  Trust  (3o.,  Ketcham  v.  (Pa.)  764 
Lund  Title  &  Trust  C!o.  v.  McGarrity  (Pa.)  829 
Land  Title  &  Trust  Co.  v.  Shoemaker  (Paj  335 

Lane,  Carville  t.  (Me.) 968 

Lang  T.  Wilmer  (Md.) 706 

Lansing  v.  Campbell  (R.  I.) 1 

JUapinco  v.  Philadelphia  &  R.  R.  Co.  0?*-)  767 

Lapriesta,  Commonwealth  v.  (Pa.) 637 

Larkin,  Improved  Building  &  Loan  Ass'n  y. 

(N.  J.  ChO 1043 

Latham  &  Crane,  Osterhout  t.  (Conn.) ....  494 
Latham  &  Crane,  Swanson  t.  (Conn.)....  492 

Lauenstein  t.  Lauenstein  (N.  J.  Ch.) 193 

Lauther,  Geissler  v.  (Pa.) 648 

Lawrence  ▼.  Prosser  (N.  J.  Ch.) 1040 

Lawrence,  Thrasher  v.  (N.  H.) 636 

Lebanon  Valley  ConsoL  Water  Supply  Oo. 

v.  Commonwealth  Trust  Co.  (Pa.) 630 

Lederer  Realty  Corp-  Branigan  t.,  two  cas- 
es (R.  I.) 122 

Lee,  Fague  v.  (R.  I.) 7 

Lee  y.  Leitch  (Md.) 716 

Lee,  Ostman  y.  (Conn.) 23 

Lehigh  Valley   Cx>al  Ciy.,  McMennimen  t. 

(Pa.)   735 

Lehigh  Valley  B.  Co,  of  Mew  Jersey,  Ugbt- 

cap   V.    (N.   J.) 187 

Lehigh  VaUor  Tmst  Oo.  y.  Strausi  (Pa.)..  .1047 
Lehigh  &  WUkes-Barre  Coal  C!o.,  Ford  t. 

(P^)  .: 958 

Leitch,  Lee  r.  (Md.) 716 

Lemaire  v.  Crockett  (Me.)... 302 

Lembd  y.  Donnell  (Me.) 469 


Fag* 
Leottl  V.  Philadelphia  Maeuoni  Oo.  (Pa.)  802 

Leslie  V.  Keene  (N.  H.) 661 

Levinsohn,  Heyniger  v.  (N.  J.  Ch.) 189 

L'Hommedieu  v.  Delaware,  L.  &  W,  B.  Co. 

(Pa.)    988 

Lightcap  y.  Lehigb  Valley  B.  Co.  of  New 

Jersey  (N.  J.) 187 

Limpert   Bros.   y.   B.   M.   French   &   Son 

(N:  J.)  263 

Lipps  Co.,  Beckery.  (Md^ 783 

Lipsitz,  Worthington  y.  (Md.) 626 

Little,  Pricey.  (Pa.) 645 

Loeblein  v.  CJlements  (Md.) 693 

Long  Dock  Co.  y.  State  Board  of  Taxes  and 

Assessments,  two  cases  (N.  J.) 367 

Long  Dock  Co.  y.  State  Board  of  Taxes  and 

Assessments,  two  cases  (N.  J.) 368 

Long,  Price  v.  (N.  J.  Ch.). 195 

Loughran's  Estate,  In  re  (Pa.) 817 

Love,  Appeal  of  (Pa.) 827 

Loveland  v.  McKeever  Bros.  (N.  J.) 877 

Liidwig  v.  Baltimore  County  Com'rs  (Md.)  695 

Lung  v.  Sutton  (Pa.) 458 

Lyon,  Dorus  v.  (Conn.).... 490 

Lyons  v.  Walsh  (Conn.) 488 

McAlpine  y.  McAlpine  (Me.) .1021 

Macan,  Jr.,  Co.,  Scandinavia  Belting  (3o.  y. 
(P^\   ...7..   ...  997 

McAvoy]  State  v.',  two  "cases"  (B.  'l.)  .* ! ! !  II  109 

McCarthy  v.  Leeds,  two  cases   (MeJ 448 

McCarthy  v.  West  Hoboken  (N.  J.  Sup.). .  417 

McCauley's  Estate,  In  re  (Pa.) 827 

McCIenehan,    Board   of    Police   Com'rs   y. 

(Md.)    786 

McClure,  Smith  y.  (P«l) 347 

McCoach  y.  Sheehan  (Pa.) 829 

McCoy,  Appeal  of  (Pa.) 946 

McDermott  v.  Woodhouse  (N.  J.) 375 

McGarrity,  Land  Title  &  Trust  Co.  v.  (Fa.)  829 

McGaw,  In  re  (N.  J.  Prerog.) 421 

McGee,  McLaughlin  y.  (Md.) 682 

McGinley  v.  Philadelphia  &  R.  B.  Co.  (Pti.)  826 

McGinley's  Estate,  In  re  (Pa.) 807 

McGinn  y.  B.  H.  Gladding  Dry  Goods  Co. 

(R.  I.) 129 

McHale  v.  Toole  (Pa.) 988 

Mack,  Stamford  Trust  <3o.  y.  (Conn.)...'..  236 

McKeever  Bros.,  Loveland  y.  (N.  J.) 377 

McKeuna  v.  Vernon  (Pa.) 919 

Mackenzie,  Bradford  v.  (MdO 774 

McKinnoD  v.  Bangor  By.  &  Electric  (3o. 

(Me.) 462 

McTvaughlin  y.  McGee  (Md.) 682 

McMennimen   y,   Lehigh    Valley  XToal  (3o. 

(Pa.) 735 

McMurray's  Estate.  In  re  (Pa.) 646 

McNeill  y.  Frey   (R.  L) 7 

McNemey  v.  Downs  (CoonA 494 

Mad  River  Co.,  State  v.  (Clonn.) 496 

Maprier  v.  Philadelphia  &  K.  R.  Co.  (Pa.). .  731 

Magnire  t.  Preferred  Realty  Co.  (Pa.) 100 

Maine  Mill  Supply  Co.  v.  Finkclman  (Me.)  833 

Maley  v.  Pennsylvania  B.  Co.  (Pa.) Oil 

Malone  v.  Erie  R.  (3o.  (N.  J.  Sup.) 416 

Mamatey,  Commonwealth  v.^Pa.) 731 

Manchester  Tp.  Sup'rs  v.  Wayne  Connty 

Com'rs   (Pa.) 736 

Manchester  Traction,  Light  &  Power  Co., 

Thompson  &  Nesmith  y.  (N.  H.) 212 

Mancinf.  State  V.  (Vt.) 681 

Maniatakis'  Estate,  In  re  (Pa.) 920 

Mantell  y.  Echard  (Pa.) 1049 

Marandft  V.  Gaulin  (R.  I.) 321 

Maikee  v.  Reybum  (Pa.) 003 

Markle  Co.,  Forte  v.  (Pa.) 941 

Marquis,  Weil  v.  (PaO 70 

Marshall,  Nazareth  Foundry  &  Machine  Co. 

y.   (Pa.) 848 

MarshaU,  York  y.  (Pa.) 820 

Martin,  Coast  &  Lakes  Contracting  Corp.  y. 

.  (Conn.)  602 

Martin  V.  Woodbridge  Tp.,  Middlesex  Coun- 
ty (N.  J.  Sup.) 418 

Martone,  Tiemey  T.  (Conn.) 407 


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101  ATIAKTIO  BBPORTEB 


Pag* 

Maseachuaetta  Bonding  &  Insurance  Co., 

Betts  V.  (N.  J.), 257 

Massachusetts   Bonding  &   Insurance  Co., 

Gagne  V.  (N.  H.) 212 

Massey  v.  Foote  (Conn.) 4i>9 

Materka  v.  Brie  R.  Co.  (N.  J.  Sup.) 6i> 

Matiser,  Appeal  of  (Pa.) 955 

Matter,  Commonwealth  v.-  (Pa.) 648 

Maxwell  v.  Edwards  (N.  J.) 248 

Mayer  Bros.  Const.  Co.  t.  American  Ster- 
ilizer Co.  (Pa.) 1(X)2 

Medoff  V.  Fisher  (Pa.)... 471 

Mereness  v.  Delcmos  (Conn.) 8 

Merkel  v.  Merkal  (N.  J.) 1054 

Merryman  v.  Wheeler  (Md.) S.'Jl 

Me.ssick  v.  Johnson  (Del.  Ch.) 866 

Metropolitan   Life   Ins.    Co.,   Guarraia  y. 

(N.  J.) 298 

Metropolitan   life   Ins.    Co.,    Guarraia  t. 

(N.  3.) 800 

Metropolitan    liife    Ins.    Co.    v.    Jennings 

(Md5    608 

Mial,  Koenigsberger  -y.  (N.  J.) 184 

Michael  v.  Minchln  (N.  J.) 283 

Mil  ford  Co.  v.  Short  (Del.  Super.) 238 

Milford  Water  Co.  y.  Kannia  (Conn.) 475 

Miller,  Commonwealth  v.  (Pa.) 1006 

Miller  v.  Trustees  of  Trinity  Union  Meth- 
odist Episcopal  Church  (R.  I.) 106 

Miller  v.  West  Jersey  &  S.  S.  R.  Co.  (Pa.). .  7fi8 

Mills  T.  Davis  (Conn.) 657 

Milner,  More  v.  (N.  J.) 380 

Minchin,   Michael  v.   (N.  J.) 283 

Miners'  Bank  of  Wilkes-Barre,  In  re  (Pa.)  934 

Mitchell,  Wilhelm  v.  (Md.) 785 

Mitton,  Wilson  v.  (Pa.) 316 

Monetti,  State  v.  (N.  J.) 206 

Monheit,  Department  of  Health  of  New  Jer- 
sey V.  (N.  J,  Sup.) 413 

Moore,  Appeal  of  (Pa.) 310 

Moore,  Appeal  of  (Pa.) 818 

Moore,  Henschke  v.  (Pa.) 308 

Moore,  Henschke  t.  (Pa.) 31 1 

Moran  t.  Tucker  (R.  I.) 327 

More  ▼.  Milner  (N.  J.) 380 

More  V.  Richards  (N.  J.) 3S0 

More  V.  Silver  (N.  J.) 3S0 

Morgan  v.  Cleaver  (.NId.) tilO 

Morrow  Bros.,  Arthur  &  Boyle  t.  (Md.) . . .  777 

Mosby,  Thoencbe  v.  (Pa.) 98 

Mountain  City  Water  Co.  of  Frackville  v. 

Harleigh-Brookwood  Coal  Co.  (Pa.) 734 

Mulhem  v.  Philadelphia  Home-Made  Bread 

Co.  (Pa.). 74 

Murphy,  Flather  Foundry  C5o.  v.  (N.  H.)..  357 

Murphy,  Nashua  Co-op.  (Jo.  v.  (N.  H.) 357 

Murphy,  Susquehanna  Transmission  Co.  of 

Maryland  v.  (Md.) 791 

Murphy,  White  ML  Freezer  Co.  v.  (N.  H.)  357 

Murphy's  Estate,  In  re  (Pa.) 03,5 

Murray  v.  Randall  (Pa.) 055 

Mutillod,  Ebcrling  v.,  two  cases  (N.  J.)...  619 
Mutual  Loan  &  Savings  Ass'n  of  Chambers- 
burg  V.  National  Surety  Co.  (Pa.) 830 

Myers,  Jackson  t.  (Pa.) 341 

Nashua  Co-op.  Co.  v.  Murphy  (N.  H.) 867 

National  Surety  Co.,  Mutual  Loan  &  Sav- 
ings Ass'n  of  Chambersburg  v.  (Pa.) 8.30 

Naylor,  Joseph  v.  (Pa.) 846 

Nazareth  Foundry  &  Machine  Co.  t.  Mar- 
shall   (Pa.) 848 

Nell  t;  Godstrey  (N.  J.) 50 

Nelson,  Anderson  t.  n(.  I.) 136 

Newark  Sign  Co.,  O.  J.  Gude  Co.,  New 

Yoi-k  T.  (N.  J.) .■ 392 

Newbaker,  New  York,  S.  &  W.  R.  Co.  v. 

(N.  J.) 1064 

New  England  Casualty  Co.,  Standard  Gas 

Power  Corp.  v.  (N.  J.) 281 

JJew  Haven  Hotel  Co.,  Ft  Orange  Barber^ 

ing  Co.  V.  (Conn.) 506 

Newport  Trust  Co.  v.  Chappell  (R.   I.)..  323 
New  York  Cent.  &  H.  R.  R.  Co.,  CJhristy 
T,  (N.  J.).... '.. 372 


Paga 
New  Toi^  Stable  Manure  Co.,  Rowland  v. 

(N.  J.  Ch.) 621 

New  York,  S.  ft  W.  R.  Co.  y.  Board  of  Pub- 

Uc  Utility  Com'rs  (N.  J.  Sup.) 4» 

New  York,  8.  &  W.  R.  Co.,  Flynn  y.  (N. 

J-    Sup.) 1034 

New  York,  S.  &  W.  R.  Co.  y.  Newbaker 

,(N.    J.) 1054 

New  York  Tel.  Co.  v.  Newark  (N.  J.  Sup.)  391 
New  York  &  New  Jersey  Water  Co.,  Beall 

v.  (N.  J.  Ch.) 676 

New   York  &   New  Jersey   Water   (Jo.  v. 

State  Board  of  Assessors  (N.  J.) 168 

Nolan  v.  United  Brotherhood  of  Carpenters 

and  Joiners  of  America  (N.  J.  Ch.) 194 

Nones,  State  v.  (N.  J.) 427 

Norman  v.  Prince  (R.  I.) 126 

Norris,  Stone  v.  (R.  I.) 428 

NorU»  Branch  Transit  Co.,  Stetler  y.  (Pa.)  980 
Norttmmberland  County  Traction  C!o.,  Phil- 
adelphia Trust  Co.  V.  (Pa.) 970 

Northwestern  Pennsylvania  R.  (Do.,  Weil  y. 

(Fa.)  1 812 

Ocean  Accident  &  Guarantee  Corp.,  Adle- 

man  v.  (Md.) 629 

O'Connor  v.  Rhode  Island  Co.  (R.  I.) 966 

O'Dowd,  Stearns  v.  (N.  H.) 31 

O.  J.  Gude  Co.,  New  York  y.  Newark  Sign 

Go.  (N.  J.) 892 

Olsson,  Parian  y.  (R.  I.) 106 

O'Malley  v.  PubUc  Ledger  Co.  (Pa.) 94 

Osterhout  v.  Latham  &  Crane  (Conn.) 494 

Ostman  v.  Lee   (Conn.) 23 

Ott  V.  Connecticut  Co.  (CJonn.) 485 

Otto's  Estate,  In  re  jfPa.) 316 

Overholt,  Power  y.  (Pa.) 738 

Owen  V.  Wilmer  (Md.) 686 

Owens,  Baltimore  &  O.  R.  Co.  y.  (Md.) 605 

Owens,  Washington,  B.  &  A.  Electric  R. 
Ck>.  y.  (Md.) 632 

Palese  y.  Palese  (Del.  Super.) 438 

Parian  y.  Olsson  (R.  I.) 106 

Park  Cemetery.  Browne  y.  (N.  H.) 34 

Parker,  First  Nat  Bank  y.  (N.  J.) 276 

Parkview  Building  &  Loan  Ass'n  of  City 

of  Newark  v.  Rose  (N.  J.) 287 

Parmly,   Fiedler  v.   (N.   J.   Sup.) S»l 

Parmly,  Jcnkinson  y.  (N.  J.  Sup.) 390 

Pascucci  V.  Rossi  (Conn.) 22 

Passaic  Trust  &  Safe  Deposit  Co.  y.  East 

Ridgelawn  Cemetery  (N.  J.  Ch.) 1026 

Patterson   v.  Baltimore  (Md.) 589 

Peck,  Rhode  Island  Hospital  Trust  Co.  r. 

(R.  I.) 480 

Pennsylvania  Cent  Brewing  Co.  y.  Anthra- 
cite Beer  Co.   (Pa.) 926 

Pennsylvania  Co<d  Co.'s  Assessment,  In  re 

(Pa.) 646 

Pennsylvania  Co.  for  Insurance  on  Lives, 

Etc.,  Parnum  v.  (N.  J.) 1058 

Pennsylvania  Gas  Co..  In  re  (Pa.) 996 

Pennsylvania  R.  Co.,  Ellis  y.  (N.  J.  Sup.)  416 

Pennsylvania  B.  Co.,  Maley  y.  (PaJ 911 

Pennsylvania  B.  Co.,  Reigner  v.  (Pa.)....  996 

Pennsylvania  R.  Co.,  Shaffer  y.  (Pa.) 982 

Pennsylvania  Steel  Co.  v.  Sunbury  &  S.  R. ^ 

Co.  (Pa.) 970 

Penrose's  Estate,  In  re  (Pa.) b19 

People's  Nat.  Bank  v.  Cramer  (N.  J.). 204 

People's  Natural  Gas  Co.,  Smith  y.  (Pa.) . .  789 

Perkins  v.  Bringhurst  (Del.  Super.) 438 

P°rkins  v.  Halpren  (Pa.) ^ ^,vit  ISi 

Peter  Breidt  Brewing  Co.  y.  Weber  (N.  J.)  382 

Petry,  Edwards  v.  (N.  J.) 195 

Pettis   V.   Pettis   (Conn.) 13 

Phelps  y.  UUcy  (Vt) %•  v;  •  •  -i;  vlOU 

Philadelphia  Home-Made  Bread  Co.,  Mul- 
hem V.  (PaJ .........^....  74 

Philadelphia  Hdme-Made  Bread  Co.,  Wein- 

schenk  v.  (Pa.) A^-  v  5?5 

Philadelpliia  Macaroni  Co.,  Leotti  v.  (Pa.)  802 
Fhiladel^Ua  Fai-kway.  In  re  (Pa.) 1000 


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xiii 


Pact 
FliiladelpUa  Rapid  TVasBit  0«.,  Donghertr 

V.  (Pa.) .....;. 7,  844 

Philadelphia  iEuipid  Transit  Co!,'  Harper  V. 

(Pa.)  , .....1004 

Philadelphia  Rapid  Transit  Co.,  Williams  v. 

(Pa.)  748 

Philadelphia  Trust  Coi  v.  Northnmberland 

County  Traction  Co.   (Pa.) 970 

Philadelphia  &  Reading  Coal  &  Iron  Co., 

Poluskiewicz  v.  (Pa.) 638 

Philadelphia  &  Reading  Coal  &  Iron  Co., 

Wihner  v.  (Md.) B38 

Philadelphia  &  R.  R,  Co.,  Bickley  v.  (PaJ. .  664 
Philadelphia  &  R.  R.  Co.,  Hanigan  ▼.  (Pa.)  640 
PhUadelphia  &  R.  R.  Co.,  Kirstein  v.  (Pa.)  338 
Philadelphia  &  R.  R,  Co.,  Lapinco  v.  (Pa.)  767 
Phihxdelphia  &  R.  R.  Co.,  McGinley  v.  (Pa.)  825 
Philadelphia  &  B.  R.  Ca,  Magier  v.  (Pa.). .  731 
Philadelphia   &   R.    R.   Co.,   West  Jersey 

Trust  Co.  V.  (N.  J.) 1065 

Phcenix  Ins.  Co.,  Kelsea  v.  (N,  H.) 362 

Pickett  ▼.  Ruickoldt  (Conn.) 82 

Pierson  t.  Pierson  Engineering  &  Constrae- 

tion  Co.  (Conn.) 486 

Pierson   Engineering  &  Construction  Co., 

Pierson  v.  (Conn.) 485 

Pittsburgh  &  L.  B.  R.  Co.  v.  Clinton  Iron  & 

Steel  Co.  (Pa.) 1048 

Piatt  ▼.  Johnson  (N.  J.  Ch.) 1035 

Plum  Trees  Lime  Co.  v.  Keeler  ((Tonn.) 509 

Poe  v.   Schlens  (Md.) 688 

Poliiskiewicz    v.    Philadelphia    &    Reading 

Coal  &  Iron  Co.  (Pa.) 638 

Posselt  T.  D'Bspard  (N.  J.  Ch.) 178 

Postal   Telegraph    Cable   Co.    t.    Harford 

County  Com'rs  (Md.) 600 

Potter's  Estate,  In  rn  (Pa.) 758 

Power  v.  Overholt  (Pa.) 7.S3 

Prantl  t.  Junk  (N.  J.) 56 

Preferred  Realtv  Co.,  Maguire  v.  (Pa.)....  100 

Prendergast  v.  Walls  (Pa.) 826 

Price  T.  Little  (Pa.) 645 

Price  T.  Long  (N.J.  Ch.) 195 

Prince,  Norman  v.  (R.  I.) 126 

Prosser,  Lawrence  v.  (N.  J.  Ch.) 1040 

Providence-Washington  Ins.  Co.,  Kazarian 

Bros.  V.  (R.  I.) 221 

Provident  Life   &   Trust  Co.  v.  Klemmer 

(Pa.)    351 

Prudential  Ins.   O.  of  America,   Duff  v. 

ffi    T  ^  871 

Pubilc  Ledger  Co.",  O'MtJieV V.  CPa.) '.'.'.'.'.'.  94 
Public  Service  B.  Co.,  Hoff  v.  (N.  J.  Sup.)  404 
Pnlljs,  State  v.  (N.  J.  Sup.) 54 

Randall,  Murray  t.  (Pa.) 955 

Randall,  Tipton  v.  (N.  J.  Ch.) 204 

Rankin  v.  Farrand  (Me.) 833 

Raphael,  Eisele  v.  Q^.  J.) 200 

Beading  Trust  Oa,  Geissler  v.  (Pa.) 797 

Beddington  v.  Getchell  (B.  I.) 123 

Beed,  Babayan  v.  (Pa.) 339 

Beese,  Commonwealth  v.  (Pa.) 949 

Beigner  v.  Pennsylvania  B.  Ca  (Pa.) 995 

Beifly  v.  Wilkes-Barre  (Pa.) 954 

Beybum,  Markee  v.  (Pa.) 993 

Beynoldsrille  Water  Co.  t.  Farmers'  &  Min- 
er's Trust  Co.  (Pa.) 800 

Bhode  Island  Co.,  Gagnon  y.  (B.  I.) 104 

Bhode  Island  Ca,  O'Connor  v.  (B.  I.) . . .  966 
Rhode  Island  Hospital  Trust  0>.  v.  Peck 

(R.  I.) 430 

Ricdo  v.  RIecio  (N.  J.  Ol.) 426 

Rdce  V.  Kinney  (Pa.) 344 

Richards  v.  Cavalry  Club  of  Bhode  Island 
/T>    T\         222 

Bichard's,  More  v!  (N.'  J.) ." ! .' .' ! .' .'  .* ." '. '. '. '.  .* !  380 

Richards  v.  Shipley  (Pa.) 456 

Biverside  Turn  Verein  Harmonie  t.  Pat- 

erson  (N.  J.) 254 

B.  M.  French  &  Son,  Lanrpert  Bros.  t.  (N. 

J.) 263 

Bobt  H.  IngersoU  &  Bro.  v.  Hahne  &  Co. 

(N.   J.   Ch.) 1030 

Bodieeter  Distilling  Ca  t.  Geloso  (ConnJ  600 


Page 

Bogen  T.  Warrington  (N.  J.) ••.....  183 

BoUins  V.  Brock  (5f.  H.) 636 

Bose  T.  Fitzgerald  (N.  J.) 202 

Bose,  Parkview  Building  &  Loan  Ass'n  of 

City  of  Newark  v.  (N.  J.) 287 

Bosenzwog  v.  Gould  (Md.) 665 

'Boss  V.  Commissioners  of  Palisades  Inter- 
state Park  (N.  J.  Sup.) 60 

Ross,  Bowell  v.  (Conn.) 333 

Bossi,  Pascucci  T.  (Conn.) 22 

Bounsaville  v.  Central  R  of  New  Jersey 

„(N.  J.) 182 

Bowe  V.  Border  City  Gametting  Co.  (B.  I.)  223 

Eowe,  Carter  v.  (Conn.) 491 

Rowell  V.  Ross  (Conn.) 333 

Rowland  v.  New  York  Stable  Manure  Ca 

_(N.  J.  Ch.) 621 

Buddick,  Sands  v.  (N.  J.) 268 

Buper  V.  Coatcsville  Boiler  Works  (Pa.)...  639 

Hiiiokoldt,  Pickett  v.  (Conn.) 82 

Rushford,  Baker  v.  (Vt) 769 

Rushmore.  Cooney  v.  (N.  J.) 1053 

Russell,  Doherty  v.  (Me.) 305 

Ryan  &  Reilly  Co.,  Solvuca  ▼.  (Md.) 710 

Saeger  v.  Commonwealth  (Pil) 999 

St.    John,    South   Norwalk   Trust   Co.   t. 

„(Conn.)    961 

Sanderson  v.  Boston  &  M.  R.  R.  (Vt)....     40 

Sands  v.  Ruddick  (N.  J.) 268 

Sanner,  Western  Maryland  B.  Co.  v.  (Md.)  687 

Saupp  V.  Streit  (Pa.) 939 

Scandinavia  Belting  Co.  v.  Macan.  Jr..  Co. 

(Pa.)   ...; : 997 

Scheib,  Allen   v.   (Paj ,....  102 

Schellen,  Appeal  of  (Conn.) 81 

Scherr,  Commonwealth  v.  (Pa.) 949 

Schlens  v.  Poe  (Md.) 688 

Schlens,  Village  of  Lyons  v.  (Md.) 688 

Schmitt  V.  Carbondale  (Pa.) 756 

Schulz   Junior   Co.,    D'Espard   v.    (N.    J. 

Oh.) 178 

Schuylkill  County  v.  Wiest  (Pa.) 761 

Schwartz,  Commonwealth  t.  (Pa.) 99 

Schwartz  v.  Daahi£E  (Conn.) 580 

Schwarzrock    v.    Board    of    Education    of 

Bayonne  (N.  J.  Sup.) 894 

Schwarzwaelder,  Four  Comers  Building  & 
Loan  Ass'n  of  Newark  v.  (N.  J.  Ob.)...  564 

Schwehm  v.  Chelten  Trust  Co.  (Pa.) 93 

Scott  V.  American  Exp,  Co.  (Pa.) 96 

Scott,  Cite  of  Baltimore  v.  (Md.) 674 

Scully  V.  Automobile  Finance  Co.  (DeL  Oi.)  908 

Scully,  Carson  v.  (N.  J.) 289 

Scully,  Carson  v.,  two  cases  (N.  J.)......  295 

Security  Trust  Co.  v.  Edwards  (N.  J.)....  383 

Security  Trust  Co.  v.  Edwards  (N.  J.)..,.   384 

Seitzinger  v.  Becker  (Pa.) 650 

Shaffer  v.  Pennsylvania  B.  Co.  (Pa.) 982 

Shannon  v.  Watt  (N.  J.) 251 

Shapiro,  State  v.  (Md.). 703 

Sheafer  v.  Woodside  (Pa.) 753 

Sheehan,   McCoach   v.   (Pa.) 829 

Sherburne  v.  Bougie  (Me.) .- 355 

Shipley,  Bichards  v.   (PaJ 456 

Shoemaker,  Land  "Ktle  &  'Trust  C!o.  v.  (Pa.)  336 

Short,  Milford  Co.  v.  (Del.  Super.) 238 

Sbover's  Estate,   In  re  (Pa.) 862 

Shovlin,  Hack  v.   (Pa.) 956 

SUver,JkIore  v.JN.  J.) 380 

Sinking  Spring  Water  Co.  v.  Gring  (Pa.). . .  732 
Slatersville  Finishing  Co.  v.  Greene  (B  I.)  226 

Smith  V.   Doten   (Me.) 1053 

Smith  V.  McClure  (Pa.) 347 

Smith  V.  People's  Natural  Gas  Co.  (Pa.)...  739 

Smith  V.  Smith  (N.  J.) 254 

Smith  V.  Tilton  (Me.) 722 

Snyder,  Borough  of  Hollidaysburg  v.  (Pe..)  955 
Society  for  Establishing  Useful  Manufac- 
tures v.  Board  of  Conservation  and  De- 
velopment (N.  3.  Sup.) 102.t 

Solvuca  V.  Byan  &  Beilly  (3o.  (Md.) 710 

Sommers  v.  Adelman  (0>nn.) 7 

Setter  V.  Coatesville  Boiler  Works  (Pa.). ..  744 


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Pac* 
Soulsby    T.    American    CokmUation    Soc. 

„(Md.)   ...'..TT. 780 

South    Norwalk    Trust    Co.   ▼.    St    John 

(Conn.) 861 

Sp«icer  V.  Connecticut  Biver  Power  Co,  of 

New  Hampshire  (N.  H.) 628 

Spocidio,  E.  I.  Du  Pont  De  Nemours  Pow- 
der Co.  V.  (N.  J.  Sup.) 407 

Spofford  V.  Bickford  (Me.) 470 

Spouting  Rock  Beach  Ass'n  v.  Tax  Com'rs 

of  Rhode  Island  (R.  I.) 215 

Sprotte  V.  Delaware,  U  &  W.  R.  Co.  (N. 

J.) 518 

Steirs  T.  Banftor  Power  Co.  (Me.) 206 

Stamford  Rolling  Mills  Co.  t.  Erie  R.  Co. 

(Pa.)    ., 823 

Stamford  Trust  Co.  t.  Mack  (Conn.) 235 

Standard  Gas  Power  Corp.  v.  New  Eng- 
land Casualty  Co.  (N.  J.) 2S1 

Stanford  V.  Stanford  (N.  J.  Ch.) 388 

Stanford,  State  v.,  two  cases  (N.  J.) 53 

Stanton  v.  PittsburKh  (Pa.) 822 

Staples  V.  Emery  (Me.) 721 

State,    Agricultural    Soa   of   Montgomery 

County  V.   (Md.) 139 

State,  Boston  &  M.  R.  R.  v.  (N.  H.) 663 

State  V.  Castelli    (Conn.) 476 

Stole  T.  Davis  (Me.) 208 

State  v.  Fletcher  (N.  J.) 181 

State  ▼.  Hart  (N.  J.) 278 

State  V.  Hop  (N.  J.  Sup.) 881 

State  T.  Jefferson  (N.  J.) Bfifl 

State  ▼.  Kane  (Del.) 239 

State  T,  McAvoy,  two  cases  (R.  I.) 100 

State  T.  Mad  River  Co.  (Conn.) 406 

State  V.  Mancini  (Vt.) 581 

State  T.  Monetti  (N.  J.) 206 

State  v.  Nones  (N.  J.) 427 

State  T.  Pnllis  (N.  J.  Sup.) 54 

State  V.   Shapiro  (Md.) 703 

State  ▼.  Stanford,  two  cases  (N.  J.) 63 

State  T.  Triplett  (Conn.). 486 

State  V.  United  Brokerage  Co.  (Del.  Super.)  433 

State  V.  Vreeland  (N.  J.) 1055 

State  T.  Warner  (Vt) 149 

State  T;  Washington,  B.  &  A.  Electric  R. 

Co.  (Md.) 646 

State  V.  Weeks  (N.  H.) 35 

State  Board  of  Assessors,  New  York  &  New 

Jersey  Water  Co.  v.  (N.  J.) 168 

State  Board  of  Assessors,  Suburban  Inv. 

Co.  T.  (N.  J.) 1055 

State  Board  of  Taxes  and  Assessmmts,  At- 
lantic Coast  Electric  R.   Co.   v.   (N.  J. 

Sup.)   64 

State    Board    of  Taxes    and   Assessment, 

Long  Dock  Co.  v.,  two  cases  (N.  J.) . . .  3(57 
State    Board    of   Taxes    and    Assessment 
Long  Dock  Co.  v.,  two  cases  (N.  J.)....  368 

Staush,  Commonwealth  v.  (Pa.) 72 

Steams  v.  O'Dowd  (N.  H.) 31 

Steffanazzi  t.  Italian  Mut.  Ben.  Soc.  (Vt.)..1010 
Sterling    Tp.    Sup'rs    v.    Wayne    County 

Com'rs    (Pa.) 731> 

Stetler  v.  North  Branch  Transit  Co.  (Pa.)  980 
Stone  T.  Delaware,  L.  &  W.  R.  Co.  <Pa.). .  813 

Stoner.Norris  (R.I.) 428 

Stougb,  Cullen  v.  (Pa.) 937 

StraffOTd  v.  Franklin  Paper  Mills  Co.  (Pa.)  .349 
Strauss,  Lehigh  Valley  Trust  (3o.  t.  (Pa.)..  1047 

Streit,  Saupp  v.  (Pa.); 939 

Struble's  Estate,  In  re  (N.  J.  Prer^.) 177 

Stuart    T.    Burlington    County     Farmers' 

Eich.  (N.  J.).... 265 

Suburban  Inv.  Co.  t.  State  Board  of  As- 
sessors (N.  J.) 1055 

Suburban  Water  Co.,  Carter  t.  (MdJ 771 

Sudnjk  V.  Susquehanna  Coal  Co.  (Pa.). . .  318 
Summit  Silk  Co.  v.  Fidelity  Trust  Co.  of 

Baltimore,  Md.  (N.  J.  Ch.) 573 

Sunbury  &  S.  R.  Co.,  Pennsylvania  Steel 

Co.  V.  (Pa.). . .  V 970 

Susquehanna  Coal  Co.,  Sudnik  ▼.  (Pa.)...  318 
Susquehanna  Transmission  Co.  of  Maryland 
V.  Murphy  (Md.) 791 


Sutton,  Lnng  t.  (Pk.).,.... 458 

Swwuso.n,  Barton  v.  (Md.) 607 

Swanson  v.  Latham  &  Cran«  (Conn.)....  492 

Swartz,  Bixler  v,  (Pa.) 647 

Sweeting,  Tnthlll  ▼.  (Pa.)..,. 989 

Swiller  V.  Home  Ina  Co.  of  New  York  (N. 

J.) 616 

Swop«,  Folton  County  Bank  t.  (Pa.) 950 

Taber  v.  TalCott  (R.  I.) 2 

Tabor's  Estate,  In  re  (Pa.) 811 

Talcott,  Taber  v.  (R.  I.) 2 

Tammaro,  Esposito  v.  (Conn.) 23 

Taub  V.  Taub  (N.  J.) 246 

Tax    Com'rs   of   Rhode   Island,    Spouting 

Rock  Beach  Ass'n  v.  (B.  L) 215 

Taylor,  Fischer  v.  (Pa.) 313 

Taylor,  White  v,  (ConnJ 231 

Thayer,  Villa  v.  (Vt.) 1009 

Thoenebe  V.  Mosby  (Pa.) 98 

Thomas  v.  Thomas  (N.  J.) 1055 

Thomas  A.  Edison,  Inc.,  GriUo  v.  (N.  J.). ..  171 

Thompson,  Hogsett  v.   (Pa.) 941 

Thompson,  Hogsett  v.  (Pa.) 944 

Thompson,  King  v.  (Me.) 724 

Thompson  &  Nesmith  v.  Manchester  Trac- 
tion, Light  &  Power  Co.  (N.  H,J 213 

Thorpe,  Jersey  City  t.  (N.  J.) 414 

Thrasher  v.  Lawrence  (N.  H.) tviS 

Tibbetta  V.  Curtis  (Me.) 1023 

Tiemey  v.  Martone  (Conn.) 497 

Tilton,  Smith  v.  (Me.) 723 

Tipton  V.  Kandall  (N.  J.  Ch.) 204 

Title    Guaranty    &    Surety    Co.   t.   Fusco 

Const  Co.  (N.  J.) 248 

Toole,  McHale  ▼.  (Pa.) 988 

Town  of  Belleville,  Jerolamon  v.  (N.  J.),..  244 
Town  of  Glover  v.  Greensboro  (Vt)....1016 
Town  of  Greensboro,  Town  of  Glover  ». 

(Vt.)  1016 

Town  of  Hamden  t.  New  Haven  (Conn.)..    11 

Town,  of  Lebanon,  l^coss  v.  (N.  H.) 364 

Town  of  Tilton  v.  Concord  (N.  H.) 144 

Town  of  West  Hoboken,  Cahill  v.  (N.  J. 

Sup.)   417 

Town  of  West  Hoboken.  McCarthy  v.  (N, 

J.  Sup.) 41T 

Town  of  West  Orange,  Eckert  v.  (N.  J.)..  269 
Township  of  Wilson  v.  Easton  Transit  Co. 

(Pa.)  883 

Township  of  Woodbridge,  Middlesex  Conn- 

ty,  Martin  v.  (N.  J.  Sup.) 418 

Tracey,    Appeal    of    (Pa.) 807 

Trainer,  Herman  v.  (Pa.) 1051 

Trenton  &  Mercer  County  Tt'action  Coip. 

V.  Ewing  Tp.  (N.  J.  Ch.) 1037 

Trenton  &  Mercer  County  Traction  Corp. 

V.  Trenton  (N.  J.  Snp.) 562 

Trimble,  Bergen  v.  (Md.) 137 

Triplett  State  v.  (Conn.) 486 

Trustees    of     Trinity     Union    Methodist 

Episcopal  Church,  Millar  y.  (R.  I.)....  106 

Tucker,  Moran  v.  (R.  I.) 327 

Turner  v.  Connecticut  Co.  (Conn.). .......     88 

Tuthill  y.  Sweeting  (Pa.) 989 

Tuttle   V.    Cumberland   County    Power   & 

Light  Co.  (Me.) 451 

T.  W.- Griffith  Realty  Co.,  Fisher  v.  (N.  J. 

Oh.) 411 

Union  Mut  Fire  Ins.  Co.,  Boston  &  M.  R. 

R.  V.  (Vt) 1012 

United  Brokerage  Co.,  State  v.  (Del.  Super.)  433 
United    Brotherhood    of    Carpenters    ana 

Joiners  of  America,  Nolan  v.  (N.  J.  Ch.)  194 
Utley,    Phelps    v.    (Vt) 1011 

Valentine,   Warfield  v.   (Md.) 543 

Van  Beil's  Estate,  In  re  (Pa.) 316 

Van  Wagenen,  Freeman  v.  (N.  J.  Sup.). . .     55 

Vare,  Lambert  v.  (N.  J.  Ch.) 726 

Verhovay  Aid  Ass'd*  -Commonwealth  v. 
(Pa.) 7.... 832 


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Verbovay  Aid  Ass'n's  Charter,  In  re  (Pa.)  932 
Vermont  Marble  Ck).  v.  Eastman  (Vt.)...-  151 

Vernon,  McKenna  v.  (Pa.) 919 

Viele  T.  Curtis  (Me.) 966 

ViUa  T.  Thayer  (Ytj 1009 

VUlase  of  Lyons  v.  Schlens  (Md.) 688 

Vogel,  "Wilson  v.  (X.  J.  Ch.) 1T3 

Vreeland,  State  t.  (N.  J.) 106S 

Wales,  Erie  Connty  Pomona  Grange  No.  4 

v.  (Pa.) 993 

Walla,  Prendergast  v.  (Pa.) 826 

Walsh,  Lyons  v.  (Conn.) <, 488 

Warfield  T.  Valentine  (Md.) 643 

Wnme  v.  Greenbaum  (N.  J.  Ch.) 668 

Warner,  Acampora  v.   (Conn.) 33*^: 

Warner,  State  v.  (Vt.) 149 

Warrington,  Rogers  v.  (N.  J.) 183 

Washington  v.  Gulf  Refining  Co.  (Pa.) 817 

Washington,  B.  &  A.  Electric  B.  Co.  t. 

Owens  (Md.) 632 

Washington,  B.  &  A.  Electric  B.  Co.,  State 

V.    (Md.) 646 

Watmough's  Estate,  In  re  (Pa.) 857 

Watt.  Shannon  v.  (N.  J.) 251 

Wayne    County    Com'rs,    Manchester   Tp. 

Sup'rs  V.  (P&.) 736 

Wayne  County  Com'rs,  Sterling  Tp.  Sup'rs 

T.    (Pa.) 739 

Wayne    Junction   Trust   Co.,   Fox   Chase 

Bank  v.   (Pa.) 979 

Weber,  Peter  Breidt  Brewing  Co.  v.  (N. 

J.) 882 

Weeks,  State  v.  (N.  H.) 35 

W«l  T.  Marquis  (Pa.) 70 

Weil  T.  Northwestern  PennsylTSnia  R.  Co. 

(Pa.)   312 

Weinschenk    ▼.    Philadelphia    Home-Made 

Bread   (3o.   (Pa.) 926 

Wells  Y.  Great  Eastern  Casualty  Co.  (B.  I.)  6 
Western  Maryland  B.  Co.  v.  Sanner  (Md.)  587 

Western  Nat  Bank  v.  Jenkins  (Md.) 667 

West  Jersey  Trust  Co.  t.  Philadelphia  &  B. 

R.  Co.  (N.  J.) 1065 

West  Jersey  &  &  S.  B.  Co.,  MiUer  r.  (Pa.)  766 


Fog* 
West  Mahanoy  Townshlp^s  Contested  EOec- 

ticm.  In  re  (Pa.).. 946 

Wheeler,  Humphrey  v.  (Vt) ...1018 

Wheeler,  Merryman  v.  (Md.) 651 

Wheeler's  Estate,  In  re  (Del.  Orph.) 865 

Whitaker  v.  Dumont  Borough  (N.  J.  Sup.)  561 

White  v.  Taylor  (Conn.). 231 

Whitefield  Tanning  Co.,  Bernard  v.  (N.  H.)  439 
White  Mt.  Freezer  Co.  v.  Murphy  (N.  H.)  357 

White's  Estate,  In  re  (N.  J.) 241 

Whitney  Co.  v.   Church  (Coua.) 829 

Wiebke  v.  De  Wyngaert  (N.  J.  Oh.) 410 

Wiest,  Schuylkill  County  ▼.  (Pa.) 761 

Wllhelm  V.  Mitchefl  (Md.) 786 

Wilkes-Barre  &  H.  B.   Oo^,   Feassner  t. 

(Pa.)    966 

William  Kane  Mfg.  Co.,  Wood  ▼.  (Pa.). ...     73 

Williams   v.   Beltz   (Del.   Super.) 905 

Williams,  Cloud,  Stiles  &  Work  v.  (Pa.)  732 
Williams    ▼.   Philadelphia   Bapid   Transit 

Co.  (Pa.) 748 

Wills  V.  Fisher  (Pa.) 818 

Willis,  Wilson  ▼,  (Md.) 694 

Wilmer,  Lang  y.  (Md.) 706 

Wilmer,  Owen  v.  (Md.) 686 

Wilmer  y.  Philadelphia  &  Beading  Coal  & 

Iron  Co.  (Md.) 638 

Wilson  V.  Hilliard  (Md.) 603 

Wilson,  Kingston  v.  (B.  I.) 109 

Wilson  v.  Mitton   (Pa.) 316 

Wilson  V.  Vogel  (N.  J.  Ch.) 173 

Wilson  T.  WiUis  (Md.) 6SW 

Wolcott  ▼.   Doremus   (Del.   Ch.) 868 

Wood  ▼.  Carson  (Pa.) 811 

Wood  V.  William  Kane  Mfg.  C^.  (Pa.) 73 

Woodhouse,  McDermott  v.  (N.  J.) 375 

Woodman  v.  Butterfield  (Me.) 25 

Woodside,  Sheafer  v.  (Pa.) 753 

Worthlngton  v.  Lipsitz  (Md.) 625 

Wright  Y.  Bristol  Patent  Leather  Go.  (Pa.)  844 

Tork  T.  Marshall  (Pa.) 820 

Zenzfl  T.  Delaware,  L.  &  W.  R.  Co.  (Pa.). .  809 
Zobes  T.  International  Paper  Co.  (Me.)....    24 


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THE 


ATLANTIC  REPORTER 

VOLUME  101 


Cl  R.  I.  847) 

LANSma  et  aL  t.  CAMPBELL. 


CNo.  374.) 


(Supreme   Court  of  Rhode  Island.     June  12, 

1917.    On  Motion  for  Rehearing, 

June  28,  1917.) 

MoBTOAOKs  «=5>151(3)  —  Pbiobitt  or  hoax  — 

Mechanic's  Lien. 
Mechanics'  liens  for  material  are  superior  to 
a  mortgage  on  a  building  executed  after  the  ex- 
cavation of  the  cellar  had  been  started,  where 
the  building  was  constructed  according  to  the 
original  plans,  although  the  property  changed 
ownership  between  the  cellar  excavation  and  con- 
struction of  the  building  proper. 

[Ed.  Note.— £\>r  other  cases,  see  Mortgages, 
Cent.  Dig.  S§  33^-336.] 

Appeal  from  Superior  Court,  Kent  County ; 
John  W.  Sweeney,  Judge. 

Mechanics'  Uen  petition  by  George  D. 
Lansing  and  others  against  Lena  CampbelL 
From  a  decree  establlslilng  a  prior  mortgage 
lien,  petitioners  appeal.    Decree  reversed. 

Gardner,  Plrce  &  Thornley,  of  Providence 
(Charlea  R.  Haslam,  of  Provldaice,  of  coun- 
sel), for  appellants.  Mumford,  Huddy  &  Em- 
erson, George  H.  Hnddy,  Jr.,  and  E.  Butler 
Moulton,  all  of  Providence^  for  appellee. 

PER  CURIAM.  The  justice  before  whom 
the  above-entitled  lien  petition  was  tried  In 
the  superior  court  has  found  as  a  matter  ot 
fact  in  his  decree  entered  on  the  lOtb  day  ot 
November,  1916,  that  tbe  petitioners  did  at 
the  time  of  foreclosure  of  the  mortgage  held 
by  George  M.  Hamlen  have  a  mechanics' 
lien  upon  the  premises  described  In  the  peti- 
tion to  the  extent  of  $224.49  for  materials 
furnished  for  the  construction  of  a  house  on 
said  premises.  Tbe  decree  also  finds  that 
George  M.  Hamlen,  at  tbe  time  of  foreclos- 
ing the  mortgage,  was  not  chargeable  with 
notice  of  said  medianlcs'  lien,  and  that  the 
mortgage  owned  by  Hamlen  constitutes  a 
prior  11^1  or  claim  against  the  property  de- 
scribed and  takes  precedence  of  the  petition- 
ers' claim.  From  this  decree  the  petitioners 
have  taken  their  appeal  and  duly  prosecuted 
it  to  this  court  No  appeal  was  taken  by 
any  other  party. 

The  petitioners'  reasons  of  appeal  simply 
raise  the  question  of  priority  as  between  the 
mechanic's  lien  and  the  mortgage  lien,  and 
that  Is  the  only  question  now  before  this 
court 


The  trial  Judge  found  as  a  matter  of  fact 
that  the  excavation  of  the  cellar,  upon  which 
the  house  was  afterwards  built  was  made  in 
September,  1912,  while  the  property  was 
owned  by  C.  B.  Barney  Company;  that  the 
stone  work  was  not  done  until  the  following 
spring ;  and  there  was  evidence  from  which  he 
could  BO  find,  and  no  evidence  to  the  contrary 
was  introduced.  It  further  appears  that  after 
the  excavation  for  the  cellar  was  made,  to 
wit  on  the  15th  day  of  October,  1912,  the 
C.  E.  Barney  Company  sold  the  lot  to  Lena 
Campbell;  that  she  executed  a  mortgage 
thereon  on  the  same  day  to  C.  Edward  Bar- 
ney; that  on  November  4,  1912,  tbe  said 
mortgage  was  transferred  to  George  M.  Ham- 
len; and  that  said  deed  and  mortgage  were 
recorded  November  6,  1912.  It  thus  appears 
that  the  mortgage  lien  originated  subsequent 
to  the  excavation  of  the  cellar  which  was  the 
beginning  of  the  work  of  construction  which 
was  afterward  carried  out  in  the  building 
of  the  house  with  materials  furnished  by  the 
petitioner.    Gen.  Laws  R.  I.  1909,  c.  257,  f  1. 

Tbe  case  is  ruled  by  tbe  case  of  Bassett  v. 
Swarts,  17  R.  I.  215,  21  Atl.  352.  Tbe  ex- 
cavation of  tbe  cellar  was  "constructive  no- 
tice to  all  persons  who  may  purchase  tbe 
property,  or  may  acquire  any  interest  in  it, 
that  liens  for  labor  and  materials  to  be  used 
in  tbe  construction  of  tbe  building  may  at- 
tach and  become  entitled  to  priority."  Bas- 
sett V.  Swarts,  supra,  17  R.  I.  page  218,  21 
Atl.  page  353. 

There  was  no  evidence  of  any  abandonment 
of  the  work  of  construction;  there  was 
simply  a  delay  in  tbe  final  completion  of  the 
foundation  after  tbe  excavation  of  the  cellar 
had  been  made;  it  Is  a  fair  inference  from 
tbe  testimony  that  tbe  C.  B.  Barney  Company, 
in  1912-13,  through  C.  Mward  Barney  as  its 
agent,  was  engaged  in  tbe  sale  and  develop- 
ment of  lots  upon  the  plat  in  Norwood,  War- 
wick, R.  I.,  entitled  "Commonwealth  Pla- 
teau," and  that  the  cellar  which  was  exca- 
vated on  tbe  lot  herein  referred  to,  before  it 
was  sold  to  Lena  Campbell,  was  one  of  a 
number  of  such  operations  upon  said  plat 
then  being  carried  on  with  a  view  to  sale  of 
lots  and  building  houses  thereon  for  purchas- 
ers ;  for  it  appears  that  the  first  delivery  of 
materials  for  the  building  of  the  house  on 
this  lot  was  made  January  l6,  1913,  by  tbe 


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petitioners  at  the  order  of  C.  Edward  Barney 
who  was  acting  as  agent  for  the  owner  of 
the  lot  In  building  the  bouse  thereon  after 
the  sale  of  the  lot  to  her,  and  that  delivery 
of  materials  for  use  on  this  lot  by  the  peti- 
tioners upon  Barney's  order  was  continued 
through  January,  February,  March,  and 
April,  1913,  and  up  to  May  2, 1913,  and  that 
notice  of  petitioners'  lien  claims  was  duly 
filed  and  notice  given  May  14  or  15,  1913. 
It  appears  therefore  that  there  was  no  change 
of  plan  as  to  construction  of  the  house  upon 
the  cellar  which  was  excavated  in  September, 
1912,  and  no  abandonment  of  the  work  which 
was  commenced  by  said  excavation. 

We  are  of  the  opinion  that  the  trial  Judge 
was  clearly  In  error,  under  the  case  of  Bas- 
sett  V.  Swarts,  supra,  in  his  decree  that 
George  M.  Hamlen  was  not  chargeable  with 
notice  at  the  time  of  purchasing  said  mort- 
gage, and  in  decreeing  priority  to  the  mort- 
gage lien. 

The  petitioners'  appeal  is  sustained;  the 
decree  of  the  superior  court  appealed  from, 
60  far  as  it  decrees  priority  to  the  mortgage 
lien  and  awards  costs  to  the  said  Fred  M. 
Hamlen,  executor,  is  reversed;  the  petitloa- 
ers  are  entitled  to  have  a  decree  in  their 
favor  for  the  sum  of  $224.49,  as  found  by  the 
decree,  with  interest  from  May  15,  1913,  and 
for  costs ;  and  also  that  th^r  lien  is  entitled 
to  priority. 

A  decree  in  accordance  herewith  may  be 
submitted  for  our  approval  on  Monday,  June 
18,  1917,  at  10  o'clock  in  the  forenoon. 

On  Motion  for  Rehearing. 

Upon  motion  of  Intervener,  Fred  M.  Ham- 
len, for  rehearing.  Counsel  in  this  motion 
seems  to  intimate  that  this  court  has  over- 
looked or  ignored,  In  its  rescript  formerly 
filed,  the  case  of  Chace  v.  Pldge,  21  R.  I.  70, 
41  Atl.  1015,  and  that  we  have  virtually  over^ 
ruled  that  case.  That  case  was  neither  over- 
looked nor  overruled.  "  It  does  not  concern 
any  question  properly  raised  in  the  case  at 
bar.  The  case  of  Chace  v.  Pldge,  supra,  sim- 
ply relates  to  the  question  whether  the  no- 
tice of  lien  should  not  have  named  a  party 
respondent,  who  had  become  the  owner  of 
the  land  after  the  time  when  the  lienor  fur^ 
nished  the  materials  for  which  the  Hen  was 
claimed,  and  before  the  lien  proceedings  were 
commenced.  There  was  no  question  of  prior- 
ity of  lien  as  between  lienor  and  mcwtgagee, 
but  simply  a  question  whether  proper  notice 
had  been  given,  under  oui:  statute.  We  are 
of  the  opinion  that  the  case  of  Chace  v. 
Pldge  has  no  bearing  upon  the  question  here 
involved. 

All  of  the  matters  now  stated  in  the  mo- 
tion were  carefully  considered  by  the  court 
before  its  rescript  herein  was  prepared  and 
filed.  We  are  still  of  the  opinion  that  the 
case  of  Bassett  v.  Swarts,  17  R.  I.  215,  21 
Atl.  .W2.  governs  the  case  at  bar.    We  call 


the  attention  of  counsel  to  the  cases  dted 
therein,  and  particularly  to  American  EM.re 
Ins.  Co.  V.  Prlngle,  2  Serg.  &  B.  (Pa.)  138, 
Neilson  v.  Iowa  Eastern  R.  Co.,  44  Iowa,  71, 
and  Pennock  v.  Hoover,  6  Rawle  (Pa.)  291. 
In  the  last  two  cases  It  appears  that  the  ex- 
cavation for  the  foundation  is  held  to  be  the 
commencement  of  the  building ;  and  the  rule 
to  be  deduced  from  the  first  two  cases  is 
that,  although  such  commencement  be  made 
by  a  former  owner  and  the  building  carried 
out  by  a  sulisequent  purchaser,  nevertheless 
the  lienors  for  work  done  or  materials  fur- 
nished to  the  purchaser  after  the  date  of  the 
mortgage  are  entitled  to  priority,  where  the 
mortgage  is  given  after  the  commencement  of 
the  building.  See,  also,  Mutual  Benefit  Life 
Ins.  Co.  V.  Rowand,  26  N.  J.  Eq.  3S9;  Man- 
hattan Life  Ins.  Co.  v.  PauUson,  28  N.  J.  Eq. 
304. 

We  find  no  reason  for  granting  a  rehear- 
ing in  this  case,  and  the  intervener's  motion 
for  such  rehearing  la  denied.  The  parties 
may  be  heard  on  the  form  of  decree  to  be  or- 
dered by  this  court  on  Monday,  July  2,  1917, 
at  10  o'clock  in  the  forenoon. 


(40  R.  I.  338) 

(No.  398.) 
June  13, 


TABER  V.  TALCOTT  et  aL 

(Supreme  Court  of  Rhode  Island. 
1917.) 

1.  Wnxs  €=s>e29— CoNSTBUCTiON  IN  Favob  of 
Vesting  of  E8tatb>— Testatoe's  Intention. 

The  construction  in  favor  of  the  vesting  of 
estates  immediately  upon  the  testator's  death, 
and  which  does  not  regard  the  remainder  as  be- 
ing contingent,  in  the  al>8«ice  of  a  clear  intent 
on  testator's  part  to  that  effect,  is  subordinate  to 
the  fundamental  principle  of  construction  that 
the  written  expression  of  the  testator,  taken  in 
its  natural  aense  and  use  and  applied  to  existing 
facts,  must  control. 

[Eki.  Note.— For  other  cases,  see  Wills,  C!ent. 
Dig.  SS  1461,  1462.] 

2.  Wnus    «=>524(e)—CoNSTBUCTioN— Vested 
OB  Continqent  Remainder. 

A  will  directing  trustees  to  convey  property 
in  fee  to  "heirs"  upon  death  of  the  survivor  of 
children,  or  upon  tne  death  of  the  wife  in  case 
she  survived  all  of  the  children,  after  providing 
for  payment  of  income  to  widow  and  children 
during  their  lives,  held  to  give  contingent  equita- 
ble interests  in  fee  to  those  persons  answering 
description  of  heirs  at  the  time  of  death  of  the 
last  survivor  of  wife  and  children  if  be  bad  just 
then  died  intestate  and  without  issue,  and  not 
to  grant  vested  equitable  interests  in  fee  to  per- 
sons who  answered  description  of  heirs  at  testa- 
tor's death. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
IXg.  S  1122.] 

'8.  Wills  ®=»687(6)— Tbuot  EsTAUt— Division 
OF  Propertt. 
Where  a  will  provided  for  no  difference  in 
the  disposition  of  real  and  personal  trust  prop- 
erty on  termination  of  trust  estate,  it  was  the 
trustee's  duty  to  divide  personalty  among  the 
persons  entitled  in  accordance  with  the  statute 
of  descent  and  distribution. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {  1643.] 


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4.  BviDERCK  «S380(1)  —  Pbbsttuftiok  —  Fob- 

EioN  Law. 
In  the  absence  of  evidence  to  the  contrary, 
it  will  be  assumed  that  there  is  no  difference 
between  foreign  and  domestic  law  upon  the  sub- 
ject of  descent  and  distribation. 

[Ed.  Kote.— For  other  cases,  see  Evidence, 
Cent.  Dig.  1 101.] 

Certified  from  Superior  Coort,  Providence 
and  Bristol  Counties. 

Bill  In  equity  by  \^lliam  B.  Taber,  sole 
trustee  under  tbe  will  of  Hezeklab  Allen, 
asalnst  Charles  H.  Talcott  and  others.  Cer- 
tified from  superior  court  In  accordance  with 
Gen.  Laws,  c.  288,  |  35,  submitting  questions 
to  Supreme  Court.  Questions  answered  and 
decree  directed. 

Edward  A.  Stockwell,  of  Providence,  for 
complainant.  Gardner,  Plrce  &  Thornier 
and  Murdock  &  Tillinghast,  all  of  Providence 
(William  W.  Moss  and  John  A.  Tllllnghast, 
both  of  Providence,  of  counsel),  tor  respond- 
ents Talcott  and  others.  Swan  &  Keeney, 
of  Providence  (Francis  B.  Keeney,  of  Provi- 
dence, of  connsel),  for  respondents  Ida  J. 
Clark,  and  William  D.,  Sarab  Ik,  C.  Osgood, 
and  C.  Elnora  Swan. 

STBABKS,  J.  This  is  a  blU  in  equity 
brought  by  William  E.  Taber,  sole  trustee  un- 
der the  will  of  Hezeklah  Allen,  praying  for  a 
construction  of  the  will  and  other  relief  inci- 
dent to  a  distribution  of  the  trust  estate  cre- 
ated thereunder,  and  a  discharge  of  the  trus- 
tee. By  a  decree  of  the  superior  court  the 
cause  was  certified  to  this  court.  In  accord- 
ance with  chapter  288,  S  35,  Gen.  laws  R.  I., 
and  the  following  questions  are  submitted  to 
this  court: 

"(1)  IHd  the  said  will  of  Hezekiah  Allen  give 
to  the  persons  who  answered  the  description  of 
his  heirs  at  law  at  his  death  vested  equitable  in- 
terests in  fee  in  the  trust  property,  or  did  It 
give  contingent  or  executory  equitable  interests 
in  fee  to  those  persons  who  would  answer  the 
description  of  his  heirs  at  law  at  the  time  of 
the  death  of  the  last  survivor  of  his  wife  and 
children,  if  he  had  just  then  died  intestate  and 
without  issue? 

"(2)  To  what  class  or  classes  of  persons  and 
in  what  proportions,  was  it  the  duty  of  tbe  trus- 
tee under  said  will  on  May  8,  1912,  to  convey 
the  part  of  the  personal  property  in  bis  posses- 
sion that  represented  the  pergonal  property  that 
was  left  by  said  Hezekiah  Allen  to  the  trustees 
under  bis  will? 

"(3)  To  what  class  or  classes  of  persons,  and 
in  what  proportions,  was  it  the  duty  of  said 
trustee  on  said  date  to  convey  the  part  of  the 
personal  property  in  his  possession  that  repre- 
sented tbe  proceeds  of  the  above-mentioned  sales 
of  real  estate? 

"(4)  To  what  class  or  classes  of  persons  was 
it  the  duty  of  said  trustee  on  said  date  to  con- 
vey the  said  wood  lot  in  tbe  town  of  Enfield, 
Conn.?" 

Tbe  first  question  is  the  principal  one, 
and  tbe  others  are  only  subsidiary. 

Hezekiah  Allen,  a  resident  of  Cranston,  It. 
I.,  died  in  1872  leaving  surviving  a  widow, 
Enieline  Allen,  and  three  children,  Hezekiah 
Allen,  Emily  H.  Allen,  and  Elvira  E.  Allen, 
five  brothers  and  sisters,  and  the  descend- , 


ants  of  two  deceased  brothers.  The  widow 
died  Intestate  in  1879,  and  each  of  the  chil- 
dren died  subsequently,  intestate  and  without 
issue;  Elvira  E.  Allen,  tbe  survivor  of  tbe 
cbildren  died  May  8,  1912. 

Tbe  respondents,  Charles  H.  Talcott  et  al., 
are  tbe  persons,  or  in  some  cases  the  suc- 
cessors In  Interest  of  tbe  persona,  who,  being 
descendants  of  brothers  and  sisters  of  Hez- 
ekiah Allen,  answered  the  description  of  bis 
heirs  at  law  on  May  8,  1912,  and  as  sndi 
claim  that  the  equitable  estate  in  remainder 
to  the  heirs  at  law  was  contingent  and  did 
not  become  vested  until  tbe  death  of  the  last 
surviving  child,  and  that  they  are  entitled  to 
a  conveyance  of  all  tbe  trust  property  as  It 
existed  at  that  dat&  Tbe  opposing  respond- 
ents, O.  Osgood  Swan  et  al.,  claim  solely  as 
successors  in  Interest  to  tbe  three  children  of 
Hezekiah  Allen,  and  assert  that  an  equitable 
remainder  in  fee  vested  in  these  three  dill- 
dren  at  bis  death.  They  are  mainly  tbe 
beirs  and  next  of  kin  of  Elvira  E.  All«i  on 
ber  mother's  side. 

Tbe  second  clause  of  tbe  will  Is  as  fol- 
lows: 

"Second,  I  give,  devise  and  bequeath  all  the 
rest,  residue  and  remainder  of  my  estate  both 
real  and  personal  of  which  I  shall  die  seised 
and  possessed  and  wherever  the  same  may  be  sit- 
uate, to  Henry  J.  Spooner,  John  D.  Thurston 
and  Jesse  P.  iSddy,  all  of  the  city  of  Providence. 
To  have  and  to  hold  tbe  same  to  them  and  to 
the  survivors  and  survivor  of  them  and  to  their 
successors  and  assigns.  In  special  trust  never- 
theless, for  the  purposes  following.  The  said 
trustees  and  their  successors  in  said  trust  siiall 
receive  the  rents,  profits,  issues  and  income  of 
the  property  vested  in  them  as  aforesaid  and 
therewith  make  all  necessary  repairs  and  im- 
provements and  pay  all  taxes  and  other  neces- 
sary charges  and  expenses  in  and  about  the 
same  and  after  all  such  payments  and  reserva- 
tions are  deducted,  shall  at  such  times  and  plac- 
es annually  and  in  such  proportions  as  they  may 
deem  expedient,  pay  over  the  residue  of  such 
rents,  profits,  issues  and  income  to  my  wife,  Em- 
meline  Allen,  for  and  during  the  term  of  her 
natural  life,  and  this  provision  I  make  for  her 
in  lieu  of  her  dower  m  my  estate.  After  tbe 
decease  of  my  said  wife  I  direct  my  trustees 
above  named  and  their  successors  in  said  trust 
to  pay  over  in  manner  aforesaid,  said  rents, 
profits,  issues  and  income  (after  the  deductions 
therefrom  as  above  provided  for)  to  my  three 
children,  Hezekiah  Allen,  Elvira  B.  Allen  and 
Emily  H.  Alien,  and  upon  the  decease  of  one  or 
more  of  them,  to  the  survivors  and  survivor  of 
them,  equally,  and  upon  the  death  of  the  sur- 
vivor 01  them  or  upon  the  death  of  my  said 
wife  in  case  she  shall  survive  all  mv  said  chil- 
dren, I  direct  my  said  trustees  and  their  succes- 
sors in  said  trust  to  discharge  themselves  of  the 
trust  herein  created  by  making  full  and  absolute 
conveyance  of  such  property  and  estate  as  thej 
shall  at  that  time  hold  in  trust  under  this  wilL 
to  my  heirs  at  law  and  to  their  heirs,  executors, 
administrators  and  assigns  forever." 

TUe  trustees,  in  their  discretion,  under  the 
advice  and  direction  of  tbe  probate  court, 
were  authorized  to  sell  any  i>ortion  of  tbe 
trust  estate,  ^ther  real  or  personal,  and  to 
reinvest  tbe  proceeds  In  such  manner  as  tbe 
trustees  should  deem  most  for  the  interest  of 
said  cestui  que  trust,  the  reinvested  estate  to 


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I>e  beld  by  them  snbject  to  the  same  trost 
Two  of  the  parcels  of  real  estate  located  in 
this  state  were  sold  by  the  trustees  by  au- 
thority of  acts  of  the  General  Assembly, 
which  provided  that  the  proceeds  of  the  sales 
should  form  a  part  of  the  trust  estate  and  "be 
finally  disposed  of  as  directed  in  said  will 
and  as  if  no  such  sale  •  •  •  had  been 
made."  A  part  of  the  personal  property 
now  held  In  trust  represents  the  proceeds  of 
the  sale  of  these  two  parcels  of  land.  The 
third  parcel  which  is  mentioned  in  the  will 
and  wblch  is  located  in  Enfield,  Conn.,  still 
forms  a  part  of  said  trust  estate. 

[1]  Question  1  presents  this  issue:  Are  the 
heirs  of  Hezekiah  Allen  to  be  determined  as 
of  the  time  of  his  death  in  1872,  or  as  of  the 
time  of  the  death  of  the  surviving  life  bene- 
ficiary, Eavira  B.  Allen,  in  19127  WhUe  it  is 
true,  as  stated  by  Tlllinghast,  J.,  in  Ross  v. 
Nettleton,  24  R.  I.  127,  62  AtL  677,  "that 
the  law  fiiTors  the  vesting  of  estates  imme- 
diately upon  the  death  of  the  testator,  and 
will  not  regard  the  remainder  as  being  con- 
tingent, in  the  absence  of  a  clear  intent  on 
the  part  of  the  testator  to  that  elTect,"  nev- 
ertheless it  has  been  uniformly  held  that  this 
preference  of  the  law  is  subordinate  to  the 
fundamental  principle  of  construction  that: 

"The  written  expreatdon  of  the  testator,  taken 
in  its  natural  sense  and  use,  and  applied  to  ex- 
isting facts,  must  control."  Ogden,  Petition  of, 
25  R.  I.  373,  at  page  874,  66  AU.  933. 

For  the  respondents.  Swan  et  al.,  the  case 
in  Rhode  Island  principally  relied  upon  is 
Kenyon,  Petitioner,  17  R.  I.  149,  20  Atl.  294. 
In  regard  to  cases  from  other  Jurisdictions 
cited,  this  court,  tn  the  case  of  Melcher,  Petr., 
24  R.  I.  675,  at  page  678,  54  Atl.  379,  380, 
made  the  following  comment,  wlilcb  is  as  ap- 
plicable now  as  at  the  time  when  it  was 
made: 

"Cases  upon  the  constraction  of  wiUa  and 
npon  vested  and  contingent  remainders  have 
been  too  numerous  and  conflicting  for  an  at- 
tempt to  review  ot  to  reconcile  them." 

This  difterence  in  the  authorities  arises 
not  so  much  in  regard  to  the  rules  of  inter- 
pretation, but  more  in  regard  to  the  relative 
importance  to  be  given  to  the  different  rules, 
and  the  law  Is  well  settled  in  this  state  that 
it  is  the  expressed  intention  of  the  testator, 
if  that  can  be  clearly  discerned,  which  is  to 
govern. 

In  the  case  at  bar  although  there  are  many 
points  of  similarity  to  the  Kenyon  Case  su- 
pra, yet  there  are  certain  differences  which 
clearly  distinguish  the  two  cases.  In  that 
case  A.  devised  and  bequeathed  his  entire  es- 
tate to  B,  and  his  heirs  for  the  life  of  0.,  A.'s 
•son,  in  trust  for  O.,  and  then  gave  and  be- 
queathed after  the  death  of  O.  "all  the  prop- 
erty affected  by  the  above  trust,  which  shall 
then  remain,  to  my  own  right  heirs."  It  was 
held  that  B.,  the  trustee,  took  an  estate  for 
the  life  of  C,  and  that  0.,  who  was  sole  heir 
of  A.,  at  A. 'a  death  took  a  vested  remainder 
in  fee.  In  the  Kenyon  Case,  as  in  the  one  at 
bar,  it  was  urged  that  the  language  used  was 


such  as  allowed  an  intent  to  give  the  son  C. 
only  an  estate  for  life,  and  also  that  C.  could 
not  take  a  vested  remainder  under  the  sec- 
ond clause,  because  the  clause  was  not  in- 
tended to  take  effect  until  after  his  death, 
and  that  C.  was  given  not  "the  remainder  of 
the  estate,"  but  "all  the.  property  affected  by 
the  above  trust  which  shall  then  remain"; 
and,  although  Durfee,  C.  J.,  recognized  the 
force  of  the  argument  in  favor  of  holding 
the  remainder  to  be  contingent,  he  thought 
that  the  preced^its  were  againsrt  It,  and  de- 
cided tliat  the  remainder  was  vested.  In 
reaching  this  conclusion  it  is  apparent  that 
the  learned  judge  gave  great  weight  to  the 
words  "I  give  and  bequeath,"  as  used  in  the 
last  clause  which  carried  the  remainder. 
The  court  says  a7  R.  L  159,  20  AO.  296): 

"  The  words  "I  give  and  bequeath"  in  a  tes- 
tamentary paper,'  says  Chief  Justice  Shaw  in 
Eldridge,  Adm'r,  v.  Eldridge,  Ex'r,  9  Gush. 
(Mass.)  516,  519,  'import  a  benefit  in  point  ot 
right,  to  take  effect  upon  the  decease  of  the  tea- 
tator  and  the  proof  of  his  will,  unless  it  is  made 
in  terms  to  depend  on  some  contingency  or  con- 
dition precedent.' " 

The  court  (17  R.  I.  163,  20  AtL  207)  reaf- 
firms the  established  rule  of  construction 
"that  the  Intention  of  the  testator  must  gov- 
ern, and  that,  when  that  appears,  it  ovwrides 
all  rules  and  precedents,  making  Its  own 
law.  Tbia  Is  generally  so,  but  the  Intention 
that  has  this  effect  Is  the  intention  testa- 
mentarily  expressed;  and  when  the  testator 
uses  familiar  legal  words,  he  must  be  pre- 
sumed to  have  used  them  in  their  ordinary 
meaning  till  the  ctmtrary  clearly  appears." 
In  the  case  at  bar,  however,  the  words  "I 
give  and  bequeath"  are  not  used  to  carry  the 
remainder,  but  the  following  language  is 
used: 

"I  direct  my  said  trustees  and  their  successors 
in  said  trust  to  discbarge  tbemsdves  of  the  trust 
herein  created  by  making  fail  and  absolute  con- 
veyance of  such  property  and  estate  as  they 
shall  at  that  time  hold  in  trust  under  this  will, 
to  my  heirs  at  law." 

[2]  The  primary  object  in  the  testator's 
mind  was  to  protect  his  widow  and  children 
during  their  lives ;  they  were  to  have  the  in- 
come only  of  the  estate,  with  no  power  to 
touch  the  principal.  By  giving  to  the  trustees 
the  power  to  sell  and  reinvest  the  proceeds 
for  the  benefit  of  the  cestui,  the  testator  must 
have  had  in  mind  the  possibility  of  loss  or 
gain  in  the  trust  fund,  but,  whatever  the 
result,  the  share  of  each  child  in  the  Income 
was  dependent  on  two  contingencies:  First, 
that  such  clilld  should  survive  the  widow 
only;  second,  that  the  child  or  children  who 
survived  took  the  share  of  the  income  of  any 
child  who  should  die  after  the  death  of  the 
widow.  Having  thus  protected  the  widow 
and  children  during  their  lives,  the  mind  of 
the  testator  is  then  directed  to  the  time  of 
the  decease  of  the  last  survivor,  and,  hia 
main  object  accomplished,  he  then  has  in 
mind  the  closing  of  the  trust,  and  directs 
that  what  is  left  (either  more  or  less)  shall  be 
conveyed  to  his  heira^  whoever  they  may  be^ 


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at  the  time  of  the  closing  of  the  trust.  The 
use  of  the  word  "heirs"  in  connection  with 
the  direction  to  the  trastees  to  convey  what 
remained  of  the  trust  pr<H?erty  at  the  death 
of  the  last  survlror  of  the  testator's  wife 
and  children  would  seem  naturally  to  show 
that  his  mind  was  directed  to  that  particular 
time,  and  not  to  the  time  of  his  own  death, 
and  that  Ills  intention  was  that  his  heirs 
should  be  ascertained  at  the  time  of  the  dis- 
tribution of  the  trust  estate  and  not  before; 
in  other  words,  that  the  prima  facie  meaning 
of  the  word  "heirs"  should  yield  to  the  real 
intention  of  the  testator  as  manifested  In 
the  words  of  bis  whole  wilL 

The  question  as  to  the  time  for  ascertaining 
the  members  of  a  class  described  as  the  tes- 
tator's "heirs"  was  before  this  court  in  De 
Wolf  V.  Mlddleton,  18  R.  I.  810,  814,  26  Atl. 
44,  31  Atl.  271,  31  I*  R.  A.  146  (1893),  where 
a  testator  devised  land  to  his  daughters,  their 
heirs  and  assigns,  and,  "on  both  their  de- 
ceases" without  issue,  to  bis  heirs,  and  it 
was  held  tliat  the  heirs  were  to  be  deter- 
mined as  of  the  date  of  the  death  of  the  sur- 
viving daughter,  and  not  as  of  the  date  of  the 
testator's  decease.  Stiness,  J.,  said  (18  B. 
1,  815,  31  Atl.  271,  31  U  E.  A.  148) ; 

"While  the  general  rule  is  that  the  heirs  of  a 
testator  are  to  be  taken  from  the  time  of  his 
death,  yet  the  rule  gives  way  to  a  contrary  in- 
tent to  be  found  in  the  will." 

Again  in  Tyler,  30  R.  I.  690,  76  Atl.  661 
(1910).  In  that  case  the  testator  devised  to 
his  granddaughter,  C,  the  residue  of  his  es- 
tate, "to  her,  her  heirs  and  assigns  forever" ; 
"if  said  0.  should  die  without  leaving 
*  •  •  issue  born  of  her  own  body,  then 
in  that  case  I  give,  devise  and  bequeath  my 
said  estate  to  my  heirs  at  law."  O.  died  in- 
testate without  leaving  living  issue.  Held 
tliat  the  heirs  of  the  testator  were  to  be  de- 
termined as  of  the  date  of  the  death  of  C. 

In  the  case  of  Branch,  Trustee,  v.  De  Wolf, 
38  R,  I.  395,  95  AtL  857,  decided  in  1915,  the 
testator  devised  his  house  to  his  wife  for 
life,  then  to  Ills  niece  for  life,  then  to  a  grand- 
nephew  on  condition  of  his  taking  and  bear- 
ing the  name  of  the  testator,  but  if  he  re- 
jected the  condition,  the  house  was  to  be  sold, 
and  "the  proceeds  are  then  to  be  thrown  with 
the  personal  property,  and  the  whole  is  to 
be  divided  between  my  sisters  if  alive;  or 
their  heirs,  if  dead,  in  equal  proportions." 
The  grandnephew  declined  to  take  testator's 
name  and  rejected  the  conditional  gift  It 
was  held  that  the  word  "heirs"  as  used  in 
this  will  meant  the  hetrs  of  testator's  two 
sisters  .who  were  in  being  at  the  time  when 
the  gift  came  into  effect,  npon  the  rejection 
of  the  devise  by  the  grandnephew,  the  will 
showing  the  Intent  of  the  testator  to  fix  that 
time  for  ascertaining  the  "heirs"  who  would 
then  be  entitled  to  distribution  of  the  fund ; 
that  the  word  "heirs"  was  not  used  in  Its 
technical  sense,  but  as  the  estate  to  be  divid- 
ed was  in  the  form  of  personalty.  It  would  be 


construed  to  mean  those  entitled  to  sncceed 
to  personal  property  in  case  of  intestacy. 

In  Luttgen,  Trustee,  v.  Tiffany  et  aL,  37 
B.  I.  416,  93  Atl.  182,  decided  in  1915,  the 
testator  by  his  will  bequeathed  his  estate  In 
trust,  to  pay  over  the  income  to  the  widow 
during  her  life,  with  bequest  over  of — 

"aU  of  my  estate  which  may  be  remaining  in 
the  hands  of  my  said  tnistee  at  the  time  of  the 
decease  of  my  said  wife,  to  my  children,  share 
and  share  alike,  and  should  any  of  _my  chil- 
dren die,  previous  to  their  mother  having  child 
or  children  my  will  is,  that  the  issue  of  such 
deceased  child,  ediall  take  from  my  estate  the 
share  its  parent  would  have  taken  had  that  par- 
ent survived  its  mother,  and  that  subject  to 
these  provisionB  my  estate  shall  vest  in  my  diil- 
dren  uoresaid  in  fee  simple." 

The  court  held  that  the  intention  of  the  tes- 
tator was  not  to  give  any  present  estate  or 
interest  to  the  children  at  the  time  .of  his 
death,  but  to  postpone  the  gift  to  them  un- 
til the  decease  of  the  wldaw,  and  that  during 
the  lifetime  of  the  widow  the  children  had 
only  a  future  possibility  contingent  upon  their 
survlvaL 

It  is  to  Im  noted  that,  although  the  words 
"I  give,  devise  and  bequeath"  were  used  to 
convey  the  remainder,  and  that  the  testator 
specifically  provided  that  "subject  to  these 
provisions  my  estate  shall  vest  in  my  children 
aforesaid  in  fee  simple,"  the  court  held  that 
the  gift  in  remainder,  was  contingent  both 
as  to  the  time  of  vesting  and  as  to  the  per- 
sons in  whom  it  would  vest 

For  the  reasons  stated  our  answer  to  the 
first  question  submitted  to  us  is  that  the  will 
of  Hezeklah  Allen  did  not  give  to  the  persons 
who  answered  the  description  of  his  heirs  at 
law  at  his  death  vested  equitable  interests 
In  fee  in  the  trust  property,  but  that  it  did 
give  contingent  equitable  interests  in  fee  to 
those  persons  who  would  answer  the  de- 
scription of  his  heirs  at  law  at  the  time  of 
the  death  of  the  last  survivor  of  his  wife  and 
children,  if  he  had  Just  then  died  intestate 
and  without  issue. 

[3]  As  the  will  provides  for  no  difference 
In  the  disposition  of  real  and  personal  prop- 
erty, our  answer  to  questions  2  and  3  is  the 
same,  namely,  that  it  was  the  duty  of  the 
trustee,  on  May  8,  1912,  to  convey  all  of  the 
ipersonal  pr<^>erty  of  the  trust  estate  in  his 
possession  at  that  time  to  the  persons  who  on 
that  date  answered  the  description  of  the 
heirs  of  Hezeklah  Allen,  the  same  to  be  di- 
vided among  them  in  accordance  with  the 
statute  of  descent  and  distribution. 

[4]  As  to  the  fourth  question  relating  to 
land  in  Connecticut,  our  answer  is  the  same 
as  to  the  preceding  questions.  This  piece  of 
property  is  of  comparatively  small  value,  and 
at  the  hearing  of  this  cause  no  claim  was 
made  by  counsel  that  there  was  any  differ- 
ence In  the  law  of  Connecticut  as  to  descent 
from  the  law  of  this  state;  and,  in  the  ab- 
sence of  any  evidence  on  this  point,  .we  as- 


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same  that  there  Is  no  difference  In  the  laws 
of  the  two  jurisdictions. 

The  parties  may  present  to  the  court  a  de- 
cree In  accordance  with  this  opinion  on  or  be- 
fore the  l£th  day  of  June,  1917. 

(40  R.  I.  320) 

WELLS  T.  GREAT  EASTERN  OASUALTT 
CO.  (No.  4991.) 

(Supreme  Court  of  Rhode  Island.    June  IS, 
1917.) 

insuranck  «=»141(4)— aoceptawck  of  lite 
Policy— Estoppel  to  Dent  Application. 
Where  insared  accepted  a  life  policy  issued 
"in  consideration  of  the  atnreements  and  state- 
ments in  the  application,  a  copy  of  which  is  in- 
dorsed hereon  and  made  a  part  hereof,  which  the 
insured  makes  and  warrants  to  be  true  and  ma- 
terial by  the  acceptance  of  this  policy,"  both 
he  and  the  beneficiary  were  bound  By  statements 
therein  and  estopped  from  denying  the  making 
of  the  application,  although  it  was  not  signed, 
especially  so  where  defendant  Insurer  had  at- 
tached to  its  plea  a  cop^  of  the  policy  showing 
a  signed  application  which  was  not  objected  to 
by  plaintiff  beneficiary  in  repllcati<M>  thereto 
but  was  treated  throughout  the  case  as  a  true 
copy  of  the  application. 

(Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  I  282.] 

On  motlou  for  rearsuotent    Moti4XX  doiied. 
For  former  opinion,  see  100  AtL  395. 

Walter  P.  Saesman,  of  Providence,  and 
Asa  B.  Saesman,  of  Springfield,  Mass.,  for 
plaintiff.  Boss  &  Bamefield,  of  Frovldeace^ 
tot  def^idant. 

SWEETLAND,  J.  The  case  Is  before  as 
upon  the  plaintiffs  motlou  for  a  reargoment. 
In  said  motion  for  the  first  time  appears  the 
plalntifTs  claim  ttiat  according  to  the  evi- 
dence the  Insured  never  signed  the  appli- 
cation, a  copy  of  which  is  Indorsed  on  the 
policy,  and  that  consequently  the  Insured 
made  no  statement  or  warranty  of  any  kind 
In  obtaining  the  policy.  At  the  trial,  as 
part  of  her  proof,  the  plaintiff  Introduced 
what  she  stated  was  the  policy  upon  which 
she  based  her  suit,  and  the  same  is  among 
the  papers  of  the  case  and  Is  marked,  "Plff.'s 
Ex.  1."  On  the  badt  of  said  exhibit  Is  a 
"C!opy  of  Application."  She  now  calls  the 
court's  attention  to  the  fact  that  In  said 
copy  of  application  the  space  for  the  signa- 
ture of  the  applicant  Is  blank.  In  our  opin- 
ion this  claim  should  not  avail  the  plaintiff. 

A  portion  of  said  copy  of  application  Is  as 
follows: 

"I  hereby  apply  for  a  policy  to  be  based  upon 
the  followmg  statement  of  facts,  all  of  which 
I  warrant  to  be  true,  complete  and  material 
and  binding  on  me,  whether  written  by  me  or 
any  other  person.  ••*(!)  My  full  name  is 
Winfield  Scott  Wells,  M.  D." 

Then  follow  22  distinct  statements  of  fact, 
including  the  one  marked  "12,"  which  Is  in 
controversy  In  the  case  and  has  been  con- 
sidered In  the  former  opinion  of  the  court 


100  Atl.  395.  By  Its  terms  the  poUcy  Is  Is- 
sued "in  consideration  of  the  agreements  and 
statements  in  the  application,  a  copy  of  which 
is  indorsed  hereon  and  made  a  part  hereof, 
which  the  Insured  makes  and  warrants  to  be 
true  and  material  by  the  acceptance  of  this 
policy."  Among  the  "agreements"  contained 
in  the  policy  Is  the  following: 

"(11)  This  policy  with  the  copy  of  application 
and  any  riders  or  indorsements  signed  by  an 
officer  at  the  hcnne  ofSce  and  indorsed  hereon 
or  attached  hereto  ^all  constitute  the  entire  con- 
tract of  insurance." 

It  is  plain  from  the  terms  of  the  policy, 
accepted  by  the  Insured,  that  the  existence 
of  an  a[>plication  by  the  Insured  and  the 
truth  of  the  statements  therein  contained 
have  t)een  made  by  ttie  parties  matters  ma- 
terial to  the  acceptance  of  the  risk.  The 
obligation  of  the  Insurer  is  based  upon  the 
existence  of  an  application  binding  upon  the 
insured.  If  no  application  existed,  contain- 
ing the  agreements  and  statements  referred 
to  in  the  policy,  that  consideration  upon 
which  the  policy  was  Issued  was  lacking, 
and  the  plalntUTs  action  based  upon  the  pol- 
icy should  fail 

In  our  opinion,  If  the  insured  accepted 
said  policy,  he  would  be  precluded  by  es- 
toppel from  denying  that  he  made  the  ap- 
plication, a  copy  of  which  was  Indorsed  on 
the  policy;  and  both  he  and  the  Iieneflclary 
would  be  bound  by  the  statements  and  war- 
ranties contained  in  such  copy  of  applica- 
tion, although  the  insured  had  neglected  to 
sign  bis  name  at  the  foot  of  the  application. 
It  further  appears  by  reference  to  the  plead- 
ings in  the  case  that  the  defendant  in  its 
second  plea  alleged  that  before  It  issued  said 
policy  it  required  the  Insured  in  his  applica- 
tion to  warrant  as  true  said  statement  niun- 
bered  12.  With  this  plea  the  defendant  filed 
a  copy  of  the  policy  having  the  copy  of  ap- 
plication indorsed  there<«,  and  In  said  copy 
of  application  the  blank  for  the  signature  of 
applicant  Is  filled  with  the  name  of  "Winfield 
Scott  Wells,  M.  D."  In  her  replication  to 
this  plea  the  plaintiff  alleges: 

"That  she  ought  not  to  be  barred  from  having 
and  maintaining  her  aforesaid  action  against 
said  defendant  because  she  says  that  the  state- 
ment contained  in  the  original  application  that 
no  accident,  sickness,  or  life  insurance  policy 
issued  to  the  said  Winfield  Scott  Wells  had 
even  been  canceled  or  renewal  refused,  was  true 
when  said  statement  was  made,  and  was  true 
at  the  date  oi  each  renewal  of  the  said  contract 
of  insurance." 

The  plaintiff  in  said  replication  and 
throughout  the  travel  of  the  case  has  treated 
said  eoRy  as  a  copy  of  application  made  by 
Winfield  Scott  Wells  and  binding  upon  him 
and  upon  her. 

The  other  matters  contained  In  the  plain- 
tiflfs  motion  for  reargument  have  been  ful- 
ly considered  by  the  court  before  filing  its 
former  opinion  In  the  case. 

The  motion  for  reargument  is  denied. 


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VAGUB  V.  TiTOIP!,  CSir  Treaaoxer.    (No.  6017.) 

(Sopieme  Court  of  Rhode  IsUnd.     June  19, 
1917.) 

Exceptions  from  Superior  Court,  Providence 
and  Bristol  Counties ;  Greorge  T.  Brown.  Judge. 

Bill  by  Mary  E.  Fague  against  William  M. 
Lee,  City  Treasurer.  On  defendant's  exceptions 
from  the  superior  court.  Exceptions  overruled, 
and  case  remitted,  with  directions. 

Washington  R.  Prescott  and  Edward  H.  Zieg- 
ler,  both  of  Providence,  for  plaintiff.  Frank  H. 
Wildes,  City  SoL,  of  Cranston,  for  defendant. 

PER  CURIAM.    Upon  due  consideration  of 

the  briefs  and  arguments  of  counsel,  and  of  the 
evidence  in  this  case,  which  was  conflicting,  we 
find  that  there  was  ample  evidence  to  sustain 
the  verdict  of  the  jury  in  favor  of  the  plaintiff, 
both  as  to  the  liability  of  the  defendant  and  as 
to  the  amount  of  the  damages  awarded.  There 
was  no  error  in  the  denial  of  the  defendant's 
motion  for  a  new  trial. 

We  have  examined  the  several  exceptions 
urged  in  behalf  of  defendant  on  its  brief,  based 
upon  admission  and  exclusion  of  testimony,  and 
we  do  not  find  reversible  error  in  any  of  such 
admissions  or  exclusions;  nor  do  we  find  any 
of  such  exceptions  of  sufficient  importance  to 
warrant  extended  discussion. 

The  defendant's  exceptions  are  all  overruled, 
and  the  case  is  remitted  to  the  superior  court, 
sitting  in  Providence  county,  with  direction  to 
enter  its  judgment  for  the  plaintiff  upon  the 
verdict 


McNeill  t.  fret.   (No.  341.) 

(Supreme  (Tonrt  of   Rhode  Island.     June  19, 
1917.) 

Appeal  from  Superior  Court,  Kent  County; 
Chester  W.  Barrows,  Judge. 

Action  by  William  McNeill  against  Charles 
T.  Frey.  From  a  decree  dismissing  the  bill, 
plaintiff  appeals.  Appeal  dismissed,  decree  af- 
firmed, and  cause  remanded. 

Philip  S.  Knauer  and  George  Hurley,  both 
of  Providence,  for  complainant.  William  R. 
Champlin,  of  Providence,  for  respondent. 

PER  CURIAM.  This  is  an  appeal  from  a 
final  decree  of  the  superior  court  dismissing  the 
complainant's  bill  of  complaint.  At  the  hear- 
ing before  the  superior  court  certain  issues  of 
fact  were  framed  by  the  judge  presiding  there- 
in, after  a  consultation  with  counsel,  and  the 
issues  of  fact,  as  finally  settled  by  the  court^  were 
assented  to  by  the  counsel,  and  no  exception  to 
the  settlement  of  such  issue  was  taken  by  either 
party.  The  superior  court  has  decided  the  ques- 
tions of  fact  in  issue,  and  it  is  apparent,  from  a 
consideration  of  the  decision  of  the  court  on 
file  in  this  case,  that  the  case  was  carefully  con- 
sidered by  the  court.  After  consideration  of 
the  arguments  and  brie&  of  counsel,  and  of  the 
testimony  in  the  cause,  we  are  of  the  opinion 
that  there  is  ample  testimony  to  sustain  the  de- 
cision of  the  superior  court,  and  we  find  no  er- 
ror in  the  decision  appealed  from. 

Apipeal  of  complainant  dismissed,  decree  of 
superior  court  appealed  from  affirmed,  and  cause 
remanded  to  superior  court  for  further  proceed- 
ings. 


an  C(Hu.  sw) 

SOMMERS  T.  ADELMAN. 

(Supreme  Court  of  Errors  of  Connecticut 
June  1,  1917.) 

New  Tbial  <8=»72— Sbttino  Aside  Verdict- 
Evidence. 
T\Tiere  plaintiff's  evidence  that  he  was  exer- 
cising ordinary  care  was  flatly  contradicted  by 
the  only  witnesses  who  saw  the  accident,  two  of 
whom  were  produced  by  plaintiff  and  two  by  de- 
fendant, the  judge  was  justified  in  setting  aside 
the  verdict  for  uie  plaintiff. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  tS  14&-148.] 

Appeal  from  Court  of  C!<nnnion  Pleas,  New 
Eaveu  County;    Earnest  C.  Simpson,  Judge. 

Action  by  Charles  Sommers  against  Max 
Adelman.  From  an  order  setting  aside  a 
verdict  for  plaintiff,  plaintiff  appeals.  -  No 
error. 

See,  also,  90  C!onn.  713,  99  Aa.  60. 

Robert  J.  Woodruff,  of  New  Haven,  for 
appellant.  Philip  Pond,  of  New  Haven,  for 
appellee. 


PER  CURIAM.  The  trial  judge  set  aside 
the  verdict  rendered  for  the  plaintiff  for  the 
reason  that  he  had  failed  to  present  evidence 
from  which  the  Jury  reasonably  could  have 
reached  the  conclusion  that  he  was  free  from 
contributory  negligence.  The  testimony  giv- 
en by  the  plaintiff,  if  accepted  as  true,  fur- 
nished a  reasonable  basis  for  the  finding  that 
he  was  In  the  exercise  of  due  care.  That 
of  the  only  other  witnesses,  who  profess  to 
have  been  present  upon  the  scene  of  the  ac- 
cident and  observers  of  what  transpired, 
while  not  fully  In  accord  with  each  other, 
were  aliKe  Inconsistent  with  the  plaintiff's 
story  and  with  the  exercise  by  him  of  rea- 
Brn"hie  care.  These  witnesses  were  four  In 
number ;  two  produced  on  behalf  of  the  plain- 
tiff and  two  on  behalf  of  the  defendant. 
The  plaintiff's  case.  In  so  far  as  the  element, 
of  care  on  bis  part  is  concerned,  stands  en- 
tirely upon  his  own  testimony.  That  testi- 
mony, in  so  far  as  It  touched  the  matter  of 
vital  importance,  bears  such  marks  of  Im- 
probability, and  is  so  opiwsed  to  that  of  the 
other  witnesses,  that  the  trial  judge  was 
justified  In  holding  that  It  was  so  overwhelm- 
ingly disproved  and  discredited  that  the 
verdict  of  the  Jury,  based  upon  an  acceptance 
of  it,  could  not  have  been  arrived  at  reason- 
ably. 

There  is  no  error. 


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101  ATIiANTIO  BEPORTEOt 


(Oona. 


(91  Oonn.  tOi 

MESREtJESS  T.  DETLBMOS  et  tiz. 

(Supreme  Court  of  Errors  of  Conaecticat,    June 
1,  1817.) 

1.  Covenants  <8=>108(1)— Covenant  Aoainst 
Incumbkances— Pabol  Aobeement  as  Dk- 

rENSE. 

A  parol  agreement  by  a  grantee  to  pay  tax- 
es as  part  consideration  for  the  conveyance  is  a 
good  defense  in  an  action  by  tbe  grantee  on  the 
covenant  against  Incumbrances. 

[Ed.  Note. — For  other  cases,  see  Covenants, 
Cent  Dig.  |§  175.  179,  18^185.] 

2.  Assignments  <g=9l04— Eqttities. 

The  claim  of  an  assignee  is  subject  to  the 

equities  it  would  have  been  subject  to  bad  tbe 

suit  been  brought  in  the  name  of  the  assignor. 

[Ed.  Note.— For  other  cases,  see  Assignments, 

Cent  Dig.  $  183.] 

8.  Covenants  ®=9l08(l)— Tbusts  «=s>81(2)  — 

Resulting  Tbust. 
Where  no  part  of  the  consideration  for  a 
conveyance  came  from  a  wife  who  was  grantee 
in  the  deed,  her  husband  being  the  real  party  in 
interest,  equity  will  treat  her  as  trustee  for  her 
husband,  holding  the  naked  legal  title,  and  will 
permit  the  grantor  or  covenantor  to  make  any 
defense  as  against  her  that  conid  b«  made 
against  her  husband. 

[ISd.  Note. — For  other  cases,  see  Covenants, 
Cent  Dig.  U  175,  179,  182-185;  Trusts,  Cent 
Dig.  i  116.] 

4.  Estoppkl  «s>74<2)  —  Bxohanok  of  Peop- 

BBTT. 
Where  a  husband  exchanged  his  land,  and  it 
was  agreed  that  incumbrances  on  each  property 
should  be  determined,  and  that  the  grantor  of  the 
property  on  which  the  amount  was  greater 
should  pay  the  excess  to  the  other  party,  and 
that  each  party  should  then  pay  the  incum- 
brance upon  the  land  received,  and  tbe  excess 
was  on  the  husband's  property,  and  be  paid  the 
amount  to  the  other  parties,  who  paid  the  in- 
cumbrances on  the  property  they  received  from 
the  husband,  tbe  other  parties  could  invoke  tbe 
doctrine  of  equitable  estoppel  against  an  action 
for  breach  of  covenant  against  incumbrances 
brought  by  the  assignee  of  the  wife  of  the  hus- 
band, the  deed  having  been  made  to  her  as  gran- 
tee at  the  husband's  request,  Uie  wife  not  hav- 
ing been  a  party  to  the  negotiations  leading  up 
to  the  exchange,  and  not  having  been  present 
when  tbe  deed  to  her  was  made  and  delivered  to 
her  husband,  and  not  knowing  of  the  transaction 
until  later,  when  she  ratified  it 

[Ed.  Note. — For  other  cases,  see  Estoppel 
Cent  Dig.  f$  190,  191.] 

Appeal  from  Court  of  Common  Pleas,  Fair- 
field County ;   John  J.  Walsh,  Judge. 

Action  by  C.  A.  F.  Mereness  against  Albert 
Delemos  and  wife.  From  a  judgment  for 
plaintiff,  defendants  appeal.  Judgment  set 
aside,  with  directioii  to  render  Judgment  for 
defendanta 

Tlie  plaintiff  brings  tbis  action  as  an  as- 
signee of  a  claim  for  damages  alleged  to 
have  been  sustained  by  one  Edna.  A.  Blbbins 
on  account  of  a  breach  of  warranty  In  a  deed 
given  to  her  by  the  defendants.  One  para- 
graph of  the  defendants'  answer  is  that: 
Edna  Blbbins  was  substituted  for  Royal  E. 
Blbbins  as  grantee  in  this  deed  and  repre- 
sented and  stood  in  the  position  of  Royal  E3. 
Blbbins,  and  as  part  consideration  for  this 
deed  the  defendants  paid  to  Royal  E.  Blbbins 


tbe  amount  of  taxes  and  liens,  and  the  de- 
fendants satisfied  all  obligations  on  their  part 
under  any  covenants  against  incumtoano 
es  in  this  deed  by  paying  the  amount  of  the 
taxes  and  liens  to  Royal  E,  Blbbins,  acting 
for  himself  and  Edna  A.  Blbbins. 

The  finding  shows  that  prior  to  July  24, 
1897,  one  Royal  E.  Blbbins  entered  into  nego- 
tiations with  the  defendants  for  the  exchange 
of  land  owned  by  Blbbins  at  Bridgeport, 
Conn.,  for  land  owned  by  the  defendants  at 
Mt  Vernon,  N.  Y.  On  July  24,  1897,  deeds 
were  exchanged  between  these  parties,  the 
defendant  giving  a  warranty  deed  of  the  Mt. 
Vernon  property,  which  deed  contained  a 
covenant  that  the  Mt  Vernon  property  was 
free  from  all  incumbrances  except  two  mort- 
gages, one  for  $1,500,  and  another  on  which 
the  sum  of  $80  was  then  due.  At  the  time 
of  making  this  warranty  deed,  at  the  request 
of  Royal  E.  Blbbins,  the  name  of  his  wife, 
Eidna  A.  Bibldns,  was  inserted  in  it  as  the 
grantee  Instead  of  that  of  Royal  E.  Blbbins. 
Edna  A.  Blbbins  was  not  a  party  to  the  nego- 
tiations resulting  in  the  conveyance  of  this 
land,  paid  none  of  the  consideration,  and 
was  not  present  when  the  deed  was  made  and 
delivered.  She  learned  of  the  transaction 
later  and  ratified  the  same.  At  the  time  of 
the  exchange  of  these  deeds  it  was  agreed 
between  Royal  El  Blbbins  and  the  defendants 
that  the  equities  of  the  two  properties,  over 
and  above  the  mortgages  on  each,  were  of 
equal  value,  and  that  the  properties  would  be 
exchanged  on  that  basis.  It  was  also  agreed 
between  than  that  all  other  Incumbrances  on 
each  property.  Including  taxes,  assessments, 
interest,  etc.,  should  be  figured  up  and  de- 
termined, and  that  the  grantor  of  the  prop- 
erty on  which  the  amount  of  such  incum- 
brance was  the  greater  should  pay  the  excess 
or  difference  to  tbe  other  party  or  parties, 
and  that  each  party  should  then  pay  the 
Incumbrance  on  the  land  which  he  or  they 
received  by  tbe  exchange.  These  incum- 
brances were  then  determined.  It  was  ascer- 
tained that  the  amount  of  such  incumbrance, 
over  and  above  the  mortgage^  on  the  prop- 
erty conveyed  by  Blbbins  exceeded  the  in- 
cumbrance on  the  property  deeded  by  the  de- 
fendants to  tbe  amount  of  $46.  This  sum 
was  then  paid  by  Royal  E.  Blbbins  to  the  de- 
fendants. The  defendants  paid  the  incum- 
brance on  the  property  they  received  from 
Royal  B.  Blbbins.  At  the  date  of  this  con- 
veyance, on  July  24,  1897,  there  were  Incum- 
brances on  the  Mt  Vernon  land,  deeded  by 
the  defendants,  over  and  above  the  mortgag- 
es, consisting  of  taxes,  assessments,  and 
Hens  amounting  to  $269.67.  These  incum- 
brances were  paid  by  the  plaintiff.  On  May 
23,  1898,  Edna  A.  Blbbins  conveyed  to  the 
plaintiff  the  land  In  Mt  Vernon,  N.  T.,  and 
warranted  tbe  same  to  be  free  from  incum- 
brance except  the  two  mortgages.     On  Oo- 


e=aFor  other  caaea  see  uma  topic  and  KBY-NUUBEK  In  all  Ker-Numbered  Dlswta  and  IndWM 


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Conn.) 


CLiABK  ▼.  BAK£R 


9 


tober  81,  1804,  Edna  A.  Blbblns  assigned  to 
the  plaintiff  herein  all  right  of  action  she 
might  have  against  the  defendants  for  a 
breach  of  warranty  In  the  deed  which  th^ 
bad  given  to  Mrs.  B.  B.  Bibbins.  The  consid- 
eration for  this  assignment  was  the  promise 
by  the  plaintiff  not  to  bring  an  action  against 
Edna  A.  Bibbins  on  the  covenants  contained 
in  the  deed  of  May  23,  1898. 

Tbomas  i/L  Culllnan,  of  Bridgeport,  for  ap- 
pellants. Edward  K.  Nicholson,  of  Bridge- 
port, for  appellee. 

RORABACK,  J.  (after  stating  the  facts  as 
above),  "it  has  long  been  an  accepted  princi- 
ple that  equity  will,  under  proper  circumstanc- 
es, give  effect  to  a  parol  agreement  relating  to 
the  sale  of  lands  where  the  moving  party  in- 
duced by  it  has  pursued  its  provisions  and 
partly  performed  it.  The  soundness  of  the 
reasoning  underlying  this  doctrine,  and  its 
wisdom,  have  both  been  questioned,  but  it 
has  become  too  firmly  rooted  in  our  jurispru- 
dence to  be  disregarded."  Verzier  et  al. 
V.  Convard,  75  Conn.  6,  62  Atl.  265. 

[1]  A  parol  agreement  by  a  grantee  to  pay 
taxes  as  a  part  of  the  consideration  of  the 
conveyance  Is  a  good  defense  in  an  action  by 
the  grantee  on  the  covenant  against  incum- 
brances. Brackett  v.  Evans,  65  Mass.  (1 
Gush.)  79;  Preble  v.  Baldwin,  60  Mass.  (6 
Gush.)  549. 

It,  S]  The  plaintiff  in  the  present  case  rep- 
resents the  rights  which  Mrs.  Edna  A.  Bib- 
bins had  against  the  defendants.  As  such 
assignee  bis  claim  is  subject  to  the  same 
equities  as  it  would  have  been  had  the  suit 
for  damages  been  brought  in  the  name  of 
Mrs.  Bibbins.  The  question,  therefore,  is 
whether  Mrs.  Bibbins  could  have  recovered 
for  these  taxes  and  assessments  if  she  liad 
paid  them.  They  were  adjusted  and  in  fact 
paid  by  the  defendants  in  the  arrangement 
made  with  them  by  the  husband  of  Mrs. 
Bibbins.  These  taxes  and  assessments  en- 
tered into  and  were  made  a  part  of  the  con- 
sideration of  the  deed  which  was  given  by 
the  defendants  to  Mrs.  Bibbins.  If  the  deed 
bad  been  given  to  the  husband  by  the  de- 
fendants it  could  not  be  seriously  claimed 
that  he  would  not  be  Iwund  by  the  arrange- 
ment which  he  had  made  with  the  defend- 
ants. Bat  it  appears  that  Mr.  Bibbins,  act- 
ing for  bis  wife,  directed  that  this  convey- 
ance be  made  to  her,  and  it  was  so  made; 
Thus  it  appears  that  Mrs.  Bibbins  was  a 
grantee  in  name  only.  She  was  not  a  real 
party  to  the  transaction.  No  part  of  the  con- 
sideration came  from  her.  The  husband  was 
the  real  party  in  interest  'This  being  so, 
eqnlty  would  treat  her  as  the  trustee  for  her 
hnsband,  holding  the  naked  legal  title,  and 
would  permit  the  covenantor  to  make  any 
defense  as  against  her  that  could  be  made 
against  her  husband.  •  •  •"  Reld  v. 
Sycks  et  al.,  27  Ohio  St.  289.  Acting  upon 
this  agreement  thus  made,   the  defendants 


were  induced  to  part  with  their  property 
by  the  deed  which  they  gave  to  Mrs.  Bibbins, 
and  to  pay  the  incumbrance  upon  the  proper- 
ty conveyed  to  them  to  Bibbina 

[4]  They  may  well  Invoke  the  doctrine  of 
equitable  estoppel,  "^he  modern  estoppel  in 
pals  is  of  equitable  origin,  though  of  equal 
application  in  courts  of  law.  It  is  much 
more  than  a  rule  of  evidence.  It  establish- 
es rights;  it  determines  remedies.  An  equita- 
ble estoppel  does  not  so  much  shut  out  the 
truth  as  let  in  the  truth,  and  the  whole 
truth.  Its  office  is  not  to  support  some  strict 
rule  of  law,  but  to  show  what  equity  and 
good  conscience  require,  under  the  particular 
circumstances  of  the  case,  irrespective  of 
what  might  otherwise  be  the  legal  rights  of 
the  parties."  Ganfleld,  Trustee,  v.  Gregory, 
66  Gonn.  17,  33  Atl.  636. 

It  is  of  importance  to  note  that  the  trial 
court  finds  that  Mrs.  Bibbins  was  not  person- 
ally a  party  to  the  negotiations  leading  up 
to  the  conveyance  of  this  real  estate,  and 
was  not  present  when  the  deed  from  the  de- 
fendants was  made  and  delivered,  and  did 
not  know  of  this  transaction  until  later,  when 
she  ratified  the  same.  "The  general  rule  as 
to  the  effect  of  a  ratification  by  one  of  the 
unauthorized  act  of  another  respeicting  the 
property  of  the  former  is  well  settled.  The 
ratification  operates  upon  the  act  ratified  pre- 
cisely as  though  authority  to  do  the  act  had 
been  previously  given,  except  where  the  rights 
of  third  parties  have  intervened  between  the 
act  and  the  ratification."  Gook  v.  TulUs,  18 
Wall.  (85  U.  S.)  322,  21  L.  Ed.  936. 

In  the  present  case  we  may  lay  aside  any 
rights  of  the  plaintiff  as  a  third  party.  As 
we  have  seen  he  is  simply  the  assignee  of 
what  right,  title,  and  interest  belonged  to 
Mrs.  Bibbins  when  she  made  the  assignment 
of  this  claim  to  him.  His  legal  rights  as  as- 
signee were  the  same  and  not  more  than 
ttiat  of  Mrs.  Bibbins.  He  took  his  claim  sub- 
ject to  all  of  the  legal  and  equitable  def«ises 
of  the  defendants. 

There  is  error,  the  Judgment  is  set  aside,- 
and  the  court  of  common  pleas  is  directed  to 
render  Judgment  for  the  defendants,  nie 
other  Judges  concurred. 


91  Oonn.  663) 
CLARK  V.  BAKER  et  al 
(Supreme  Court  of  Errors  of  Connecticat. 
June  1,  1917.) 

1.  Wills  ®=>601(1)— Constbuotion— Estatbs 
CREATin  —  Absolute  Estate  with  Quau- 
FYiNo  Provisions. 

A  devise  in  fee  or  absolute  gift  once  made 
in  terms  may  be  cut  down  by  a  subsequent  pro- 
vision clearly  indicating  testator's  mtent  to 
create  a  lesser  interest. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  i§  1340,  1341.] 

2.  Wills  (g=>601(8),  612(4)  —  Conbtkuction  — 
Estates  Cheated — Absolute  Estate  with 
Qualifying  Provisions. 

Wife's  will  devisine  and  bequeathing  all  her 
estate  to  her  husband,  his  heirs  and  afwigns. 


«s>Foi  otber  csMi  m«  mudo  toplo  and  KBY-NUUBER  In  all  Ker-Numbered  Dig«U  and  Ina«u« 

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10 


101  ATLANTIC  REPORTER 


(Conn. 


"but  it  is  my  wiah  and  desire  that  after  bis 
decease  so  much  as  is  left  nnased  by  him  be 
divided,"  etc.,  was  a  devise  in  fee  of  realty  and 
an  absolute  bequest  of  personalty  to  huwand; 
as  the  quoted  words  were  expressive  of  wife's 
desire  alone,  and  did  not  create  a  trust. 

[Ed.  Note.— For  other  cases,  see  Wills^  Cent 
Dig.  II  1348,  1391.] 

3.  WnxB  €=>487(1)— Intent  of  Testatrix— 

EVIDKNCB— BKNKFICIAKT'S    IlNDEBSTANDINa. 

Husband's  statements  to  effect  that  he  un- 
derstood that  his  wife's  wiU  gave  him  a  life 
estate  were  not  competent  evidence  of  wife's 
meaning  of  language  used  by  her  in  creating  the 
interest  of  the  husband. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  §1  1023,  1029,  1031.] 

Appieal  from  Superior  Court,  lAtcbfleld 
County;  William  U  Bennett,  Judge. 

Suit  by  Andrevr  M.  Clark,  administrator, 
against  Emma  J.  Baker  and  others  to  de- 
termine the  construction  of  the  wlU  of  Mary 
E.  Baker,  deceased.  From  a  Judgment  ad- 
verse to  her  claims,  Ethel  6.  Baker  Palmer 
appeals.    No  error. 

Mary  E.  Baker  died  July  7,  1911,  leaving 
a  WiU  duly  probated  by  which  she  made  the 
following  disposition  of  her  estate: 

"I  give,  devise  and  bequeath  all  of  my  estate 
both  real  and  ];>er8onal  to  my  husband,  Jacob 
Baker,  his  heirs  and  assigns,  but  it  is  my  wish 
and  desire  that  after  his  decease  so  much  as  is 
left  miused  by  him  t>e  divided  equally  between 
our  adopted  son  Roy  H.  Baker  and  Ethel  G. 
Baker." 

The  busband,  Jacob  Baker,  was  named  ex- 
ecutor without  bonds.  The  plalntlfC  is  his 
successor  hy  appointment  of  the  probate 
court 

The  testatrix  and  her  hudiahd,  during 
their  married  life,  which  covered  30  years, 
and  down  to  her  death,  occupied  a  farm  in 
Goshen  which,  together  with  the  farm  Imple- 
ments thereon  and  the  household  furniture 
and  appointments,  Mrs.  Baker  had  Inherited 
from  her  parents.  They  were  childless.  Dur- 
ing the  early  years  of  their  married  life  they 
took  to  live  with  them  and  bring  up  the  de- 
fendants Roy  H.  Baker  and  his  sister  Ethel 
G.  Baker  Palmer,  children  of  a  niece  of  Mrs. 
Baker.  Ethel,  who  was  bom  in  1884,  was 
so  taken  when  she  was  about  3  years  of  age, 
and  thereafter  remained  with  the  Bakers  un- 
til she  was  17  years  old,  when  she  married. 
Roy,  who  was  older  than  Ethel,  had  been  pre- 
viously taken,  and  legally  adopted.  Ethel 
was  never  adc^ted.  The  children,  whose 
name  at  birth  was  Payne,  took  the  name  of 
Baker,  and  were  brought  up  by  the  Bakers 
as  If  they  were  their  children.  They  ad- 
dressed the  Bakers  as  father  and  mother,  the 
relation  between  them  and  their  foster  par- 
ents was  cordial  and  like  that  between  par- 
ents and  children,  tmd  no  distinction  t>etween 
them  in  that  regard  was  made.  After  Ethel 
was  married  she  returned  to  the  Baker  home 
from  time  to  time,  and  whenever  Mrs.  Baker 
was  sick  Ethel  was  called  for,  and  always 
went  and  took  care  of  her  foster  mother. 


During  Mrs.  Baker's  last  illness  Ethel  re- 
turned and  cared  for  her  until  she  died. 

Mrs.  Baker  at  her  death  owned  the  farm  In 
Goshen  together  with  the  personal  property 
thereon  and  other  personal  estate.  After  her 
death  Jacob  continued  to  occupy  the  farm 
until  September,  1913,  when  he  married  the 
defendant  Emma  Wilcox,  his  housekeq>er. 
Thereafter  they  continued  in  the.  occupancy 
of  the  farm  until  Jacob's  death,  intestate, 
March  24,  1915.  No  conveyance  of  the  farm 
was  made. 

During  the  trial  there  was  offered  on  be- 
half of  Ethel  a  letter  written  to  her  by  Jacob 
in  Septemtier,  1913,  subsequent  to  his  re- 
marriage, containing  statements  Indicative  of 
Jacob's  understanding  of  his  former  wife's 
will  and  of  Ethel's  rights  under  it  and  also 
of  oral  statements  to  the  same  effect  made  by 
Jacob  to  her  subsequent  to  Mrs.  Baker's 
death.  This  evidence,  under  objection,  was 
excluded. 

The  advice  of  the  superior  court  was  asked 
in  answer  to  the  following  questions: 

(a)  Did  Jacob  Baker  take  an  estate  in  fee 
in  the  real  and  an  absolute  estate  in  the  per- 
sonal property  of  said  Mary  E.  Baker  by  said 
second  clause  of  her  ^vUl? 

(b)  If  said  Jacob  Baker  did  not  take  an 
estate  In  fee  or  an  absolute  estate  by  said 
clause  of  said  will,  did  he  take  a  life  estate 
only? 

(c)  Are  Roy  H.  Baker  and  Ethel  G.  Baker, 
now  Ethel  G.  Palmer,  entitled  to  all  of  the 
estate  of  said  Mary  E.  Baker  at  death  of 
said  Jacob  Baker,  and  upon  the  completion  of 
the  settlement  of  her  estate? 

Walter  Holoomb,  of  Torrington,  for  ap- 
pellant William  W.  Bierce,  of  Torrington, 
for  appellees  Emma  J.  and  Roy  H.  Baker. 
John  T.  Hubbard,  of  Litchfield,  for  plaintiff. 

PRENTICE,  C.  J.  (after  stating  the  fdcte 
as  above).  The  disposing  portion  of  the  will 
under  consideration  is  confined  to  a  single 
sentence  forming  the  second  paragraplL  In 
the  first  half  of  that  sentence  the  testator 
nsed  language  apt  for  a  devise  in  fee  of  real- 
ty and  for  an  absolute  bequest  of  personalty. 
If  the  will  had  stopped  at  that  point  there 
could  be  no  doubt  that  Jacob  Baker,  upon  the 
death  of  his  wife,  became  vested  with  the 
fee  in  her  real  estate  and  with  the  absolut< 
ownership  of  her  personal  property. 

[1]  A  devise  in  fee  or  absolute  gift  once 
made  in  terms  may,  however,  be  cut  down  to 
a  lesser  estate  by  subsequent  provisions 
clearly  indicating  the  testator's  Intent  that 
the  devisee  or  legatee  should  take  by  the  will 
some  lesser  estate.  Plaut  v.  Plant,  80  Oonn. 
673,  677,  70  AtL  S2.  The  subsequent  lan- 
guage, to  have  this  effect,  must  not  be  of 
doubtful  meaning  or  uncertain  in  its  indica- 
tion of  the  testator's  Intent  Mansfield  v. 
Shelton,  67  Conn.  390,  394,  35  Atl.  271,  52  Am. 


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TOWN  OF  HAMDEN  v.  CITY  OP  NEW  HAVEN 


11 


St  Hep.  285;  Strong  t.  ElUott,  84  Gonn. 
885,  671,  81  Aa  1020. 

[2]  -The  Bubaequent  -words  In  this  paragraph 
forming  the  second  half  of  the  sentence  fail 
to  satisfy  these  conditions.  They  are  ezpres- 
slTe  of  the  testatrix's  wish  and  desire  that 
Roy  and  Ilthel  should  share  that  portion  of 
her  estate  which  her  husband  left  unused, 
but  ftill  far  short  of  indicating  a  purpose 
on  ber  part  either  to  make  such  dispositton 
herself  or  to  Impose  upon  her  husband  a 
mandatory  direction  creative  of  a  trust.  It 
is  to  be  noted  that  the  {^t  to  her  hus- 
band Is  made  to  him,  his  heirs  and  assigns. 
With  that  fact  in  view  It  Is  especially  dif- 
ficult to  say  that  the  will  clearly  Indicates  a 
testamentary  Intent  that  the  husband  should 
not  take  a  transmissible  estate. 

The  ftacts  concerning  the  relation  of  Ethel 
to  the  testatrix  disclosed  by  the  record  are, 
indeed,  very  suggestive  of  the  former's  de- 
serts, and  strongly  indicative  that  the  ends 
of  fairness  and  Justice  would  have  been  sub- 
served by  some  testamentary  remembrance  of 
her.  Apparently  Mrs.  Baker  had  it  In  her 
heart  that  Ethel  should  ultimately  profit  by 
receiving  some  share  of  her  estate  should 
Jacob  leave  any  unused.  The  difficulty  of 
the  situation  is  that  such  feeling  on  her  part 
was  not  so  adequately  or  clearly  expressed 
that  the  law  with  all  of  Its  liberality,  can 
give  it  effect  as  a  testamentary  provision. 

[3]  The  testimony  offered  concerning 
Jacob's  oral  and  written  statements  to  Ethel 
evidencing  his  understanding  of  his  wife's 
will  as  giving  him  only  a  life  estate  with  the 
remainder  over  In  any  unused  portion  to  Eth- 
el an'd  her  brother  was  properly  excluded.  It 
was  not  competent  evidence  of  Mrs.  Baker's 
understanding  of  the  meaning  of  her  lan- 
guage used  in  the  will  or  of  her  intent  in  us- 
ing It 

There  is  no  error.  The  other  Judges  con- 
curred. 

(81  Conn.  589) 

TOWN  OP  HAMDE:N  v.  C3ITX  OP  NEW 

HAVEN. 

(Sapreme  Court  of  Errors  of  Connecticut 

June  1,  1917.) 

1.  Taxatiow  «=3217  —  Exemption  —  MoNici- 

PAL    PlfOPKUTT— CONSTBHCTION    OF    STATUTE. 

Gen.  St  1002,  f  2315,  exempting  municipal 

groperty  from  taxation,  exempts  ail  property 
eld  by  municipalities  for  pubUc  use,  altliough 
it  is  located  in  another  town,  the  devotion  of  the 
property  to  the  public  use  being  the  sole  ground 
of  exemption,  and  not  depending  on  the  bmefit 
accruing  to  the  public  from  such  use. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  §i  355,  356.] 

2.  Taxation  fi=>241  (2)— Exemption— Munici- 
PAL  Propbrtt— Land  Used  in  Connection 

WITH  POOK  FABH. 

Land  used  for  necessai^  pasturage,  growing 
crops,  and  keepinjr  stock  in  connection  with  a 
poor  farm  was  exempt  from  taxation  under  Gen. 
St  1902,  §  233  s,  providing  for  exemption  of 
monidpsl  Tropert^  devoted  to  public  use,  the 
.own  being  authorized  to  operate  a  poor  farm. 


and  it  was  immaterial  that  the  surplus  produe- 
ti<Mi  of  the  farm  was  disposed  of  for  profit  such 
use  being  a  part  of  the  general  scheme  provided 
by  sections  2476-2492  to  prevent  persons  "un- 
der any  drcumstances  from  suffering  for  the 
necessities  of  life." 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  i  390.1 

3.  Paupebs  «=»9  —  Maintknanck  of   Pcob 
Farm. 

Under  Gen.  St  1902,  gf  2476-2492,  provid- 
ing for  care  of  the  poor,  a  municipality  in  pur- 
chasing land  for  a  poor  farm  ia  not  confined  to 
present  immediate  needs,  but  may  include  rea- 
sonable provision  for  future  requirements,  may 
cultivate  such  farm,  and  sell  the  surplus  produc- 
tion. 

[Ed.  Note.— For  other  cases,  see  Paupers,  Cent 
Dig.  if  12,  21.) 

4.  Taxation  «s»241(2)  —  Poob  Pa«m  — Con- 
btbuction  of  statute. 

Gen.  St  1002,  |  2416,  providing  for  the  non- 
exemption  from  school  taxes  of  a  poor  farm 
within  a  school  district  indicates  that  such 
property  is  not  taxable  for  any  other  purpose. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  {  390.] 

5.  Taxation  <s=»217  —  Assessment  —  Public 
Pbopebty— Owner's  Name. 

Taxes  assessed  against  property  belonging  to 
the  town  of  N.  H.  could  not  be  recovered  where 
property  was  actually  owned  by  the  city  of  N. 
H.,  in  view  of  Gen.  St  1902,  i  2299,  requiring 
property  to  be  assessed  in  name  of  record  owner. 
[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  i§  355,  356.] 

6.  Taxation  ©=»217  —  Exemption  —  Munici- 
pal Pbopebty— Abandonment. 

Property  purchased  by  a  municipality  for 
publio  purposes,  but  which  had  been  abandoned 
for  more  than  20  years,  and  which  bad  not  been 
uj«d  for  any  purpose  by  the  municipality,  was 
not  exempt  from  taxation. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  §§  355,  366.] 

Appeal  from  Court  of  Common  Pleas,  New 
Haven  County ;   Earnest  C.  Simpson,  Judge. 

Action  by  the  Town  of  Hamdeu  against 
the  City  of  New  Haven  under  statute  to  re- 
cover taxes.  Judgment  of  Court  of  Common 
Pleas  for  plaintiff,  and  both  parties  appeal. 
No  error. 

Charles  F.  Clarke,  of  New  Haven,  for 
plalntifT.  Charles  Kleiner  and  Henry  H. 
Townshend,  both  of  New  Haven,  for  defend- 
ant 

WHEELER,  J.  O^e  town  of  Hamden  sues 
to  recover  for  taxes  assessed  on  three  pieces 
of  real  estate  located  In  Hamden,  Just  over 
the  dividing  line  between  New  Haven  and 
Hamden  and  adjacent  to  the  Sprlngside 
farm,  which,  in  connection  with  the  Spring- 
side  Home,  is  owned  and  operated  as  a  town 
poorhouse  and  farm  for  paupers  belonging  to 
the  town  of  New  Haven. 

The  first  piece,  called  the  Merdiant  piece, 
was  purchased  April  1,  1885,  by  the  town  of 
New  Haven,  and  ever  since  has  been  used  in 
connection  with  Sprlngside  farm  for  the  pur- 
pose of  pasturage,  and  was  reasonably  neces- 
sary for  that  purpose.  The  third,  or  Mar- 
tlno,  piece,  was  purchased  In  1903  by  the  city 


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(Cmm. 


of  New  Hayen,  and  has  ever  since  been  nsed 
for  pasturage  and  for  growing  crops  for  the 
use  of  the  Inmates  of  the  poorhouse,  and  for 
stock  kept  on  the  farm,  and  it  was  reason- 
ably necessary  for  that  purpose.  The  second, 
or  Thomas,  piece,  was  purchased  in  1892  by 
the  town  of  New  Haven  for  the  purpose  of 
providing  a  water  supply  for  the  poorhouse 
and  farm,  but,  this  purpose  proving  impracti- 
cable, it  was  abandoned,  and  for  20  years 
this  piece  has  not  been  used  for  any  purpose 
and  has  remained  rocky  woodland,  covered 
with  scrub  oaks. 

The  dty  of  New  Haven  by  consolidation 
with  the  town  of  New  Haven  became  vested 
with  its  property  prior  to  December  7,  1897, 
and  liable  for  all  debts  which  were  enforce- 
able against  the  town  of  New  Haven. 

All  of  the  products  raised  on  tbe  farm 
were  consumed  upon  the  farm  except  a  small 
quantity  of  hay  which  was  used  by  the  de- 
partment of  public  works  of  the  dty.  Some 
of  the  live  stock  raised  in  excess  of  tbe  needs 
of  the  farm  was  sold.  Upon  the  farm  was 
conducted  a  piggery  supported  by  the  dty  of 
New  Haven  and  maintained  for  the  purpose 
of  consuming  tbe  garbage  collected  in  the 
dty.  The  products  of  the  piggery  amounted 
to  $18,000  annually,  and  about  two-thirds  of 
these  were  consumed  by  the  inmates  of  the 
poorhouse  and  one-third  sold  in  the  market. 

The  defendant  claims  that  all  of  these 
pieces  of  land  were  exempt  from  taxation  be- 
cause used  for  public  purposes  only.  The 
plaintiff  claims  that  none  of  these  pieces 
were  exempt,  because  their  use  was  not  for  a 
public  purpose  and  could  be  of  no  benefit  to 
the  town  of  Hamden,  and  in  effect  would  com- 
pel Hamden  to  share  the  support  of  New 
Haven's  paupers.  The  trial  court  held  that 
the  first,  or  Merdiant,  piece,  and  tbe  third, 
or  Martino,  piece,  were  exempt  from  taxa- 
tion, and  the  second,  or  Thomas,  piece,  was 
not  exempt 

[1]  General  Statutes,  {  2315,  as  construed 
by  our  court  in  West  Hartford  v.  Water 
Commissioners,  44  Conn.  368,  exempts  from 
taxation  all  property  held  by  munidpaUties 
for  public  use.  And  this  rule  obtains,  al- 
though the  property  belonging  to  one  town  is 
located  in  another  town  which  claimed  the 
right  to  tax  it.  In  either  case  the  property 
will  be  exempt  when  it  is  used  for,  or  em- 
ployed in  a  public  use.  The  devotion  of  the 
property  to  a  public  use  la  the  sole  ground 
of  the  exemption.  West  Hartford  v.  Water 
Commissioners,  supra;  New  London  v.  Per- 
kins, 87  Conn.  233,  87  AU.  724. 

Counsel  for  the  town  of  Hamden  advance 
the  theory  that  the  principle  behind  an  ex- 
emption from  taxation  of  the  property  of  one 
town  located  in  another  town  is  a  benefit  ac- 
cruing to  the  public  from  the  public  use  to 
which  the  land  is  put,  and  that  the  absence 
of  such  benefit  removes  the  foundation  for 
such  exemption.  With  us  this  theory  has 
never  had  a  foothold.  The  main  reliance  of 
tbe  plaintiff  la  upon  tbe  case  of  Newport  t. 


Unily,  68  N.  H.  593,  44  AH.  704,  73  Am.  St. 
Rep.  626.  The  point  dedded  related  to  the 
statute  of  New  Hampshire.  The  argument  of 
the  <9inion  supports  the  prlndple  contended 
for,  but  tbe  court  expressly  notes  that  our 
dedfilon  in  West  Hartford  ▼.  Gommissionera 
holds  that  the  property  is  exempt  from  taxa- 
tion "because  it  is  used  for  public  purposes." 
This  is  the  prlndple  of  our  decisions  and  it 
conflicts  directly  with  the  New  Hampebire 
doctrine. 

[2,  3]  The  plaintiff's  appeal  is  to  be  dedd- 
ed by  ascertaining  whether  tbe  uses  of  the 
Merdiant  and  Martino  pieces  were  for  a  pul>- 
lie  purpose.  Our  statutes  providing  for  the 
care  of  the  poor  were  framed  in  the  humane 
purpose  "to  prevent  as  far  as  possible  any 
person,  under  any  circumstances,  from  suf- 
fering for  the  necessaries  of  life."  G.  S.  S| 
2476-2492.  Charter  of  New  Haven,  S  202, 
fulfills  a  similar  purpose.  Beyond  question 
this  is  a  pubUc  purpose  and  a  legitimate  ex- 
erdse  of  governmental  power.  The  statutes 
(section  2490)  expressly  authorize  the  mainte- 
nance of  poorhouses  for  the  poor  and  the 
charter  of  New  Haven  expressly  makes  all 
statutory  provisions  concerning  town  poor- 
houses  applicable  to  the  dty  of  New  Haven. 
The  town  of  Hamden  contends  that  New  Ha- 
ven is  without  authority  to  own  or  operate 
a  town  farm,  and  that  such  operation  is  con- 
sequently not  for  a  public  purpose. 

Assuming  that  this  question  is  open  for 
consideration  in  a  proceeding  to  collect  a  tax, 
we  find  ample  warrant  in  the  provision  of 
Charter,  §  204: 

"Said  board  shall  have  power  to  employ  and 
discharge  a  manager  of  Springside  farm  and 
home,"  etc. 

Here  Is  an  implied  authority  to  maintain 
this  farm.  Town  farms  have  been  operated 
in  connection  with  our  poorhouses  from  an 
early  day.  The  inmates  of  the  poorhouses 
have  worked  upon  these  for  the  production  of 
food  for  themselves.  This  not  only  gave  the 
inmates  healthy  work,  but  it  helped  make 
them  self-supporting,  and  thus  tar  relieved 
the  town  of  its  burden  of  support. 

To  provide  food  for  the  poor  In  this  way  is 
as  much  a  public  purpose  as  to  provide  shel- 
ter in  the  poorhouse.  Tbe  duty  of  caring  for 
the  poor  imposed  by  our  statute  upon  our 
towns  may  be  performed  in  every  reasonable 
way  and  by  the  use  of  every  reasonable 
means.  The  town  farm  is  a  reasonable  way 
and  means  for  furnishing  support  for  tbe 
poor.  The  sale  of  some  of  the  produce  of  the 
farm  and  of  the  products  of  the  piggery  were 
Inddents  to  the  main  purpose,  the  support  of 
the  poor.  The  town  and  dty  were  not  intent 
on  c<»ducting  a  business  for  profit.  They 
were  merely  disposing  of  their  surplus  pro- 
duction. What  was  sold  in  no  way  changed 
the  public  purpose  of  the  imdertaking.  It 
made  production  dieaper  and  cultivated  and 
used  the  farm  more  than  it  would  otherwise 
have  been  used.  The  extent  of  the  land 
which  the  town  mij^t  purdiase  for  a  farm  is 


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PETTIS  V.  PETTIS 


13 


not  to  be  confined  to  present  Immediate 
needs,  but  may  Include  reasonable  provlslcHi 
for  future  requlrMnents,  and  whatever  the 
town  may  reasonably  own  for  a  farm  It  may 
cultivate;  and  whatever  products  it  raises 
thereon  beyond  Its  needs  It  may  dispose  of. 
White  V.  Stamford,  37  ConiL  678 ;  County  of 
Camden  v.  Collins  CoIL,  60  N.  J.  law,  367, 
87  AtL  623. 

The  use  of  the  Merchant  and  Martlno  piec- 
es as  a  part  of  the  farm  for  pasturage  was 
necessary  for  pasturage  for  the  farm,  and  the 
use  of  Uie  Sfartlno  piece  for  growing  crops 
for  the  inmates  of  the  poorhouse  and  for  the 
stock  kept  upon  the  poor  farm  are  found  to 
have  been  reasonably  necessary  for  these 
purposes.  This  finding  settles  the  question 
of  their  public  use. 

We  cannot  anticipate  disaster  to  the  towns, 
as  the  plaintlfr  does,  by  such  withdrawal  of 
property  from  taxation.  Experience  has 
shown  that  the  property  owned  by  one  town 
and  located  in  another  town  and  devoted  to 
a  public  use  is  limited.  If  It  were  otherwise 
the  Oeneral  Assembly  could,  and  no  doubt 
would,  restrict  such  ownership.  And  If  In 
any  instance  the  exempt  property  tmreasona- 
bly  reduced  the  area  of  property  available  for 
taxation,  no  doubt  the  General  Assembly 
would  correct  the  public  Injustice.  And  so 
too  the  diaracter  of  the  public  use  might  lead 
the  lawmaking  power  to  expressly  provide  for 
the  taxation  of  land  subject  to  this  use  in 
another  town. 

Chapter  247  of  the  Public  Acts  of  1907  is 
an  instance  where  land  In  one  town  devoted 
to  sewage  disposal  for  a  municipality  is 
made  taxable  In  the  town  of  Its  location. 
For  one  purpose  only  have  we  expressly 
subjected  any  town  almshouse  and  farm  to 
taxation. 

t«]  G.  S.  S  2416,  provides: 

"When  any  school  district  having;  within  its 
boundaries  any  town  almshouse  and  farm,  shall 
impose  any  tax  for  the  purpose  of  building  or 
repairing  its  schoolhouse,  said  real  estate  owned 
by  the  town  shall  not  be  exempt  from  such  taxa- 
tion." 

The  express  limitation  of  taxation  of  any 
■town  almshouse  and  farm  for  one  purpose  is 
a  plain  Indication  that  it  is  not  taxable  for 
any  other  purpose.  No  statutory  Indlcatton 
olf  an  intent  to  tax  land  devoted  to  the  puN 
lie  uses  of  a  town  poorhouse  and  farm  ap- 
pearing, the  ordinary  rule  of  tax  exemption  is 
to  be  appMed. 

[6]  The  Merchant  and  Martlno  pieces  are 
within  the  rule  of  exemption.  The  taxes 
upon  the  Martlno  piece  are  not  collectible  for 
another  reason.  ITils  pr««)erty  was  transfer- 
red directly  to  the  city  of  New  Haven.  It 
was  never  owned  by  the  town  of  New  Haven. 
These  were  Ind^endent  municipal  entitles. 
The  taxes  sought  to  be  recovered  were  as- 
sessed in  the  name  of  the  town  of  New  Ha- 
ven. Real  estate  must  be  "set  by  the  asses- 
sors In  the  list  of  the  party  in  whose  name 
the  title  thereof  stood  on  the  land  records. 


G.  S.  i  2299.  The  assessment  against  the 
town  of  New  Haven  of  land  owned  by  the 
city  of  New  Haven  was  void.  Hellman  v. 
Burritt,  62  Conn.  438,  26  Atl.  473 ;  Meyer  v. 
Tnibee,  59  Conn.  422,  22  Atl.  424. 

[B]  The  defendant  appeals  from  the  Judg- 
ment for  taxes  accrued  upon  the  second,  or 
Thomas,  piece.  This  piece  was  purchased 
for  a  public  purpose,  but  this  purxMse  was 
soon  abandoned,  and,  so  far  as  the  record 
shows,  the  city  of  New  Haven  has  never  con- 
templated any  past,  present,  or  future  use 
of  this  piece.  "For  more  than  20  years,"  the 
finding  recites,  "prior  to  the  bringing  of  this 
action  said  second  piece  of  land  had  not  been 
used  for  any  purpose  by  said  Springside 
Home,  or  Spilngside  farm,  or  by  the  city  and 
town  of  New  Haven."  Since  the  abandon- 
ment of  the  purpose  for  which  it  was  pur- 
chased this  piece  of  land  has  not  been  devoted 
to  a  public  use,  nor  during  any  of  the  years 
covered  by  the  taxes  whose  recovery  Is  sought 
did  the  city  have  or  contemplate  its  devotion 
to  a  public  use.  The  trial  court  was  clearly 
right  in  holding  ttiat  this  piece  was  not  ex- 
empt from  taxation  during  this  period. 

There  Is  no  error  on  either  appeaL  The 
other  Judges  concurred. 

(91  Conn.  608) 
PETTIS  v.  PETTIS. 
(Supreme  Court  of  Errors  of  Connecticut. 
June  1,  1917.) 

1.  Divorce  €=340— Separation  Aobeekbnt— 
Effexjt. 

After  the  wife's  desertion  of  the  husband 
their  mutual  agreement  by  which  the  husband 
paid  the  wife  certain  moneys  for  support  of  the 
child,  and  she  released  her  ri^ht  to  his  property 
so  long  as  she  lived  apart  from  him,  and  by 
which  he  stated  that  he  did  not  waive  his  righte 
arising  from  her  desertion,  was  not  such  an 
agreement  on  his  part  that  the  wife  might  live 
apart  from  him  as  to  bar  his  suit  for  divorce 
for  the  desertion. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Cent. 
Dig.  §  161.] 

2.  Divorce   «=s>32&— Fobkigi?   Decbbb— Com- 
ity. 

A  New  York  decree  of  divorce  a  mensa  ct 
thoro  against  a  nonappearing,  nonresident  hus- 
band is  not  enforceable  in  Connecticut,  the  state 
of  the  hust>and'8  residence,  as  a  matter  of  strict 
constitutional  or  private  international  law. 

[Ed.  Note. — For  other  cases,  see  Divojrce,  Cent 
Dig.  §§  827-830,  840] 

3.  DivoBCE  €=»826— Matrimonial  Domicile. 

Where  the  parties  were  married  in  New 
York,  but  the  husband  had  always  resided  in 
Connecticut,  a  decree  of  New  York  divorcing  the 
parties  a  mensa  et  thoro  cannot  claim  recogni- 
tion as  a  decree  of  the  court  of  matrimonial 
domicila 

[Ed.  Note. — For  other  cases,  see  Divorce,  Cent. 
Dig.  §i  82T-830,  840.] 

4.  DivoBOE  ®=>328— FoBEiaN  Divorce— Pro- 
cess—CoMrrT. 

A  personal  judgment  against  a  nonresident, 
nonappearing  husband,  not  served  with  process, 
is  wholly  void  and  entitled  to  no  consideration 
legally  or  on  account  of  comity  or  public  policy. 
[Ed.  Note.- For  other  cases,  see  Divorce,  Cent. 
Dig.  S;  831-834.] 


4earot  other  easM  ace  wm*  topto  and  KKY-NUMBBK  In  all  Ke7-Numberea  DlgMb  and  Indww 


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101  ATIANXIC  aSPORXER 


(Conn. 


6.  DiTOBOE  4=>880— FoRxiQir  DiyoBCB— Cok- 

ITT. 

A  decree  for  judicial  separation,  when  is- 
sued by  a  competent  court  having  jurisdiction 
in  personam  over  both  spouses,  is  entitled  to  full 
faith  and  credit  in  every  state,  and  will  operate 
there  as  a  bar  to  a  subsequent  action  for  divorce 
on  the  ground  of  desertion,  brought  while  the 
decree  for  separation  remains  in  full  force. 

[Ed.  Note. — For  other  cases,  see  Divorce,  Cent. 
Dig.  I  839.] 
6.  Divorce     «s»329— Jitdoiieht    of    Otheb 

STATM— COMITT. 

A  New  York  decree  of  divorce  a  mensa  et 
thoro  in  favor  of  the  wife  who  had  deserted  her 
husband  and  left  the  Connecticut  matrimonial 
domicile,  which  decree  did  not  affect  the  status 
of  the  parties  and  was  not  final,  being  termina- 
ble at  any  time  by  reconciliation,  was  entitled 
to  no  effect  in  Connecticut  by  way  of  comity  or 
otherwise. 

[Ed.  Note.— For  other  ca«es,  see  Divorce,  Cent. 
Dig.  H  827-830,  840.1 

Wheeler,  J.,  dissenting. 

Appeal  from  Superior  Court,  New  Haven 
County;   Howard  J.  Curtis,  Judge: 

Action  for  divorce  by  Clinton  M.  Pettis 
on  the  ground  of  desertion,  and  crosa-actlon 
by  Helen  C.  Pettis  on  the  ground  of  cruelty. 
From  a  Judgment  rendered  granting  a  divorce 
to.  tbe  husband  on  the  ground  of  desertion, 
defendant  appeals.    No  error. 

Charles  S.  Hamilton,  of  New  Haven,  and 
John  M.  Gardner,  of  New  York  City,  for 
appellant  David  E.  Fitzgerald,  Ell  Mix,  and 
George  W.  R.  Hughes,  all  of  New  Haven,  for 
appellee. 

BEACH,  J.  Tbe  parties  Intermarried  In 
New  York  In  June,  1912,  the  husban-1  being 
then  and  now  a  citizen  of  Connecticut  They 
lived  together  In  Connecticut  until  May  23, 
1913,  when  the  wife  left  her  home  and  went 
to  New  York,  where  she  has  since  remained, 
refusing  to  live  again  with  her  husband, 
rhey  have  one  child,  between  three  and  four 
years  old.  On  May  24,  1916,  the  plaintiff 
husband  brought  this  action  for  divorce  on 
the  ground  of  desertion,  describing  his  wife 
as  a  resident  of  Tarrytown,  In  the  state  of 
New  York,  and  alleging  that  the  desertion  be- 
gan on  or  before  May  23, 1913.  The  defend- 
ant appeared,  denied  the  desertion,  and 
filed  a  cross-complaint  for  a  divorce  on  the 
ground  of  Intolerable  cruelty.  From  a  Judg- 
ment awarding  the  husband  a  divorce  on  the 
ground  of  desertion,  the  wife  appeals. 

The  finding  of  facts,  which  Is  not  excepted 
to,  disposes  of  all  the  controverted  questions 
of  fact  as  to  desertion  and  cruelty  in  the 
husband's  favor,  and  the  only  reasons  of 
appeal  whldi  are  pursued  on  the  brief  relate 
to  the  ^ect  which  ought  to  have  been  given 
to  an  agreement  In  writing  entered  Into  be- 
tween the  parties  In  December,  1913,  and  to  a 
Judgment  of  separation  and  for  alimony  made 
by  the  Supreme  Court  of  New  York  in  Feb- 
ruary, 1915,  In  an  action  brought  by  the  wife, 
tn  which  the  husband  did  not  appear. 

The  alleged   agreement   of  separation   Is 


contained  In  a  writing,  Exhibit  D,  signed  by 
the  plaintiff  and  defendant  which  recites 
that  Helen  C.  Pettis  has  left  her  husband 
and  resolved  that  she  will  not  thereafter  live 
with  him;  that  Clinton  M.  Pettis  desires 
the  companionship  of  his  child,  but  recog- 
nizes that  It  needs  a  mother's  care  and  Is 
unwUling  to  support  It,  except  in  bis  own 
home,  any  longer  than  Is  necessary  for  Its 
physical  well-being;  and  that  for  the  best 
interest  of  all  concerned,  the  parties  have 
agreed:  (a)  that  Helen  C.  Pettis,  in  consid- 
eration of  $800  to  be  used  for  the  support  of 
the  child,  will  support  it  and  make  no  de- 
mand wherdt>y  her  husband  Is  to  be  cliarge- 
able  with  its  support,  and  will  not  pledge  the 
husband's  credit  for  her  or  its  support,  so 
long  as  she  shall  refuse  to  live  with  her 
husband  and  refuse  to  allow  the  child  to 
live  with  him;  (b)  that  Clinton  M.  Pettis  will 
allow  the  wife  to  have  the  exclusive  custody 
of  the  child  during  its  tender -years  and  so 
long  as  she  will  support  tbe  child  and  keep 
her  agreements,  it  being  understood  that  he 
is  willing  to  support  the  child  in  bis  own 
home,  and  that  the  child,  when  It  reaches 
a  suitable  age,  shall  elect  whether  to  live 
with  its  father  or  its  mother;  (c)  that  noth- 
ing therein  contained  shall  be  construed  as 
a  condonation  on  the  part  of  Clinton  M.  Pet- 
tis of  the  willful  desertion  of  bis  wife.  At 
tbe  same  time  and  as  a  part  of  the  same 
transaction  Helen  C.  Pettis  gave  to  her  hus- 
band a  quitclaim  deed.  Exhibit  E,  of  all 
her  Interest  as  wife  and  widow  In  any  prop- 
erty owned  by  him  or  of  which  he  might  die 


The  appellant's  claim  Is  that  thLs  agree- 
ment conclusively  shows  that  the  husband 
consented  that  his  wife  might  live  apart 
from  him,  and  that  therefore  he  cannot 
charge  her  with  willful  desertion  from  and 
after  the  date  of  the  agreement  Tlrrell  v. 
Tirrell,  72  Conn.  567,  45  Atl.  153,  47  L.  R. 
A.  750;  Bennett  v.  Bennett,  43  Conn.  313; 
Todd  V.  Todd,  84  Conn.  591,  80  AU.  717. 

[1]  Manifestly  this  contract  does  not  on  Its 
face  express  any  agreement  on  the  husband's 
part  that  the  wife  may  live  apart  On  the 
contrary.  It  attempts,  at  least  to  exclude  the 
possibility  ol  a  construction  embodying  such 
an  agreement ;  and  in  that  respect  It  resem- 
bles the  agreement  printed  in  the  margin  of 
the  decision  in  Atberton  t.  Athertwi,  181  U. 
S.  166,  21  Sup.  Ct  644,  45  L.  Ed.  794.  Taken 
at  its  face  value,  the  contract  1»  quite  capa- 
ble of  the  construction  that  the  husband  recog- 
nized the  fact  that  his  wife  had  definitely 
determined  not  to  live  with  him  again  and 
was  attempting  to  mitigate  the  consequences 
of  that  unfortunate  condition  of  fact  by  pro- 
viding, not  too  liberally,  for  the  temporary 
support  of  tbe  (diild  and  for  the  wife's  agree- 
ment not  to  pledge  his  credit  so  long  as  slie 
refused  to  live  with  him.  This  is  evidently 
the  construction  which  the  trial  court  put  on 
the  Exhibits  D  and  Bl,  after  hearing  and 


4s>For  otbtr  cum  ■«•  wme  topic  »Dd  KKT-NUMBER  In  »11  Kej-Niunbwed  Digwta  ana  Iad«xa» 


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Conn.) 


PBTTIS  ▼.  PETTIS 


15 


observing  the  parties,  for  the  finding  Is  that 
the  plaintiff  husband  was  always  ready  and 
willing  to  receive  the  defendant  at  any  time 
into  his  home,  and  that  there  was  no  Justifi- 
cation for  the  defendant  remaining  and  liv- 
ing apart  from  the  plaintiff  or  absenting  her- 
self from  his  home,  or  for  falling  to  return 
to  cohabitation.  These  findings  negative  the 
existence  of  any  actual  agreement  for  sepa- 
ration, and,  as  the  Exhibits  D  and  E  are  not 
necessarily  Inconsistent  with  the  findings  in 
this  regard,  the  assignments  of  error  founded 
on  that  assumption  are  overruled. 

tZ]  The  remaining  question  is  as  to  the 
legal  ^ect  wbidi  ought  to  have  been  given  in 
this  action  to  the  New  Tork  Judgment  for 
separation.  That  Judgment  was  not  pleaded 
either  in  the  defendant's  answer,  as  a  bar  to 
the  action  for  divoroet  on  the  ground  of  de- 
sertion, or  in  the  defendant's  cross-complaint, 
as  a  conclusive  adjudication  of  the  husband's 
cruelty.  An  exemplified  copy  of  the  order, 
the  notice,  the  afSdavit  on  which  it  was 
granted,  the  summons,  complaint,  Judgment, 
and  findings  of  fact  and  law  was,  however, 
received  in  evidence  without  objection. 
Prom  these  papers  it  appears  that  the  Judg- 
ment was  based  npon  a  complaint  charging 
the  husband  with  cruelty  and  upon  proofs  in 
support  thereof;  that  the  Judgment  in  terms 
decrees  that  the  parties  be  forever  separated 
from  bed  and  board,  and  provides  for  month- 
ly alimony  until  the  further  order  of  the 
court;  and  that  the  husband  did  not  appear 
In  that  action  and  was  not  otherwise  served 
with  process  than  by  publication  and  by  leav- 
ing a  copy  of  the  summons,  complaint,  and 
order  of  service  with  him  at  his  home  In 
Connecticut.  Upon  this  state  of  the  record, 
it  is  certain  that,  as  against  the  nonapiJear- 
ing,  nonresident  husband,  the  New  York 
Judgment  is  not  enforceable  as  a  matter  of 
strict  constitntlonal  or  private  International 
law.  Haddock  v.  Haddock,  201  U.  S.  662, 
26  Sup.  Ct  625,  50  U  Ed.  867,  5  Ann.  Cas.  1 ; 
Pennoyer  v.  Neff,  06  U.  8.  714,  24  U  Ed.  565. 

[3]  The  next  question  Is  as  to  Its  effect  as 
a  Justification  for  the  wife's  continuing  to 
live  apart  from  her  husband  from  and  after 
this  date.  The  complaint  admits  that  Helen 
O.  Pettis  is  a  resident  of  New  York,  which 
undoubtedly  has  the  right  to  control  the  mari- 
tal status  of  its  own  citizens,  subject,  of 
course,  to  the  necessary  consequence,  pointed 
out  In  Haddock  v.  Haddock,  supra,  that  it 
cannot  control  the  marital  status  of  a  Con- 
necticut dtlzen  who  is  not  brought  within  its 
Jurisdiction,  unless,  Indeed,  the  decree  Is  ren- 
dered In  the  matrimonial  domicile  which  la 
the  legal  domicile  of  both  the  husband  and  the 
wife.  Atherton  v.  Athertm,  181  U.  8.  155, 
21  Sup.  Ot  544,  45  li.  Ed.  7»4.  It  is  certain 
that  New  York  was  not  the  matrimonial  dom- 
icile of  these  spouses,  for  the  domicile  of  the 
husband  has  been  in  Connecticut  from  a  time 
antedating  the  marriage;  and  so  the  decree 
of  the  New  York  court  cannot  claim  recogni- 


tion as  a  decree  of  the  court  of  matrimonial 
domicile. 

Nevertheless  the  question  still  remains 
whether  It  ought  to  be  received  here  as  a 
matter  of  comity  or  of  public  policy.  In 
Glldersleeve  v.  Glldersleeve,  88  Conn.  602,  92 
AU.  684,  Ann.  Cas.  1916B,  920,  we  held  that 
an  ex  parte  divorce  granted  In  accordance 
with  the  laws  of  South  Dakota  to  a  plaintiff 
domiciled  in  that  state  would  be  given  effect 
In  our  own  courts  as  against  a  nonappeartng 
Connecticut  defendant.  That  was  a  decree 
of  absolute  divorce  which  dissolved  the  mar- 
riage and  left  the  parties  free  to  marry 
again.  It  affected  the  marital  status,  and  In 
that  respect  was  something  more  than  a  mere 
personal  Judgment  In  most  of  the  states  of 
the  Union  It  Is  held  or  assumed  that  marital 
status  Is  a  thing  of  which  a  court  may  ob- 
tain a  species  of  Jurisdiction  quasi  in  rem  by 
obtaining  Jurisdiction  in  personam  of  one 
only  of  the  spouses  domiciled  In  the  forum. 
So  that,  by  virtue  of  the  Jurisdiction  thus  ao- 
quired  over  the  marital  status  common  to  the 
husband  and  wife.  It  may  proceed  to  render 
a  decree  affecting  the  status  of  the  absent 
defendant  over  whom  it  has  no  Jurisdiction 
in  personam.  The  Supreme  Court  of  the 
United  States  has  recognized  this  theory  and 
limited  its  application,  so  far  as  the  constitu- 
tional validity  of  the  decree  in  other  states 
is  concerned,  to  decrees  rendered  ex  parte  in 
the  courts  of  the  matrimonial  domicile.  Had- 
dock V.  Haddo<^,  supra.  But,  as  that  opinion 
points  out,  the  courts  of  most  states,  includ- 
ing our  own,  recognize  the  validity  of  such 
ex  parte  divorce  decrees  when  duly  granted 
in  the  plaintiff's  donridle,  whether  that  be 
the  matrimonial  domicile  or  not.  Perhaps 
the  best  reason  commonly  given  for  recog- 
nizing these  ex  parte  decrees  In  cases  where 
the  spouses  have  separate  domiciles  Is  that, 
when  panted  by  a  competent  court  In  the 
plaintiff's  domldle,  according  to  the  local 
law,  they  are  necessarily  valid  within  that 
state,  because  every  state  has  an  undoubted 
right  to  control  the  marital  status  of  Its  own . 
citizens  according  to  its  own  laws ;  and,  that 
being  so,  It  Is  better  that  the  state  of  which 
the  other  spouse  is  a  dtlzen  should  waive  Its 
sovereign  right  and  recognize  the  validity  of 
the  decree  in  order  to  avoid  the  harsh  conse- 
quences of  a  refusal  to  do  so. 

As  was  said  in  Glldersleeve  v.  Glldersleeve, 
supra  (88  Conn,  on  page  698,  92  Atl.  on  page 
687  [Ann.  Cas.  1916B,  920]): 

"It  is  no  light  matter,  as  affecting  Individual, 
social,  or  civic  interest  and  good  morals,  that, 
through  the  attitude  of  the  courts  in  refusing 
recognition  of  the  judicial  action  of  sister  states, 
a  condition  should  be  created  where  legitimacy 
becomes  dependent  upon  state  lines,  where  wives 
in  one  state  become  concubines  when  they  pass 
into  another,  where  husband  or  wife  living  in 
lawful  wedlock  in  one  jurisdiction  is  converted 
into  a  bigamist  by  change  of  location,  where 
persons  capable  of  inheritance  in  one  part  of 
our  country  are  incapable  in  another,  where 
certainty  of  status  may  readily  give  place  to 
uncertainty  and  property  rights  be  thrown  into 
confusion.    *    *    *    For  the  present  we  may  not 


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101  ATLAinriC  REPOaXBR 


(Conn, 


have  nniform  divorce  letrislation,  but  we  may 
contribute  to  a  uniform  treatment  of  divorced 
persons  and  tlieir  children,  and  property  anS 
property  rights,  by  obeying  the  dictates  of  com- 
ity, and  thus  avoiding  t£e  unwholesome  and 
harsh  consequences  which  are  the  natural  traits 
of  the  opirasite  course." 

[4]  It  is  apparent  from  the  foregoing  that 
the  effect  to  be  given  to  the  New  York  de- 
cree of  separation  depends  upon  whether  It 
is  a  Judgment  purely  in  personam,  or  wheth- 
er it  is  a  Judgment  affecting  the  marital 
status.  In  the  former  case,  it  Is,  as  against 
the  nonresident,  nonappearlng  husband  not 
served  with  process,  wholly  void  and  en- 
titled to  no  consideration  legally  or  for  rea- 
sons of  comity  or  public  policy.  If,  how- 
ever, it  affects  the  marital  status,  comity  and 
consistency  would  require  us  to  recognize  it 
as  valid  in  this  state. 

[5]  A  decree  for  Judicial  separation,  when 
issued  by  a  competent  court  having  jurisdic- 
tion in  personam  over  both  spouses,  is  enti- 
tled to  full  faith  and  credit  in  every  state, 
and  will  operate  there  as  a  bar  to  a  subse- 
quent action  for  divorce  on  the  ground  of  de- 
sertion, brought  while  the  decree  for  separa- 
tion remains  in  full  force.  Harding  t.  Hard- 
ing, lOS  U.  S.  317,  25  Sup.  Ct.  679,  40  L.  Ed. 
1066. 

We  are  not,  however,  referred  to  any  au- 
thority as  to  the  extraterritorial  effect  of  a 
decree  for  Judicial  separation  in  a  case  where 
the  court  which  granted  the  decree,  not  be- 
ing a  court  of  the  matrimonial  domicile,  had 
jurisdiction  in  personam  of  one  spouse  only. 
Hence  we  examine  the  question  on  principle. 

Historically  the  divorce  a  mensa  et  thoro 
was  an  ancient  subject  of  ecclesiastical  juris- 
diction In  England,  and  the  divorce  a  vinculo, 
which  the  church  did  not  grant  at  all,  was  a 
much  later  remedy  granted  by  act  of  Parlia- 
ment Xn  1858  the  E}piscopal  Jurisdiction  in 
matrimonial  causes  was  transferred  to  the 
crown,  the  name  of  divorce  a  mensa  et  thoro 
was  changed  to  Judicial  separation,  and  the 
^procedure  for  divorce  a  vinculo  was  transfer- 
red from  i'arliament  to  a  regular  court. 
Westlake,  Private  International  Law  (5th 
Ed.)  p.  89.     ' 

In  Le  Mesnrier  t.  Le  Mesurier,  1895  Ap- 
peal Cases,  p>  617,  the  House  of  Lords  for- 
mally confirmed  the  principle  that  Jurisdic- 
tion to  dissolve  a  marriage  was  dependent  on 
the  legal  domicile  of  the  parties,  and  that 
residence  abroad,  however  prolonged,  when 
not  accompanied  by  a  change  of  legal  domi- 
cile, would  not  give  Jurisdiction  to  the  local 
courts  to  grant  a  divorce  a  vinculo.  Speak- 
ing of  this  case,  Westlake  says  (pages  90,  91): 

"But  after  a  period  of  uncertainty  the  opinion 
that  divorce  a  vinculo,  which  affects  the  status, 
is  so  different  from  the  old  ecclesiastical  divorce 
a  mensa  et  thoro,  which  was  administered  for 
the  health  of  the  soul  and  did  not  affect  status, 
that  it  must  be  subject  to  rules  of  its  own,  and 
the  novelty  of  the  action  in  England  must  be 
availed  of  to  establish  those  rules  on  the  sound- 
est principle,  triumphed  in  Le  Mesnrier  t.  Le 
Mesurier.** 


On  the  other  hand,  it  was  said  In  Arml- 
tage  V.  Armitage  (1898  Probate,  p.  178),  that 
Jurisdiction  in  a  suit  for  judicial  separation 
need  not  be  referred  to  the  legal  domicile  of 
the  parties,  but  that  the  action  might  be 
maintained  in  and  a  decree  of  separation 
granted  by  the  courts  of  the  place  where  the 
parties  resided,  though  that  was  not  their 
legal  domicile.  Incidentally  the  question 
whether  the  decree  of  separation  affects  the 
status  was  discussed.  And  in  speaking  of 
the  ecclesiastical  divorce  a  mensa  et  tUoro,. 
the  court  said: 

"A  woman  divorced  from  her  husband  a  mensa 
et  thoro  and  liring  separate  and  apart  from  her 
husband  remained  a  feme  covert.  The  effect  ot 
the  sentence  was  to  leave  the  legal  status  of  the- 
parties  unchanged." 

The  court  then  discusses  the  question  of 
whether  the  act  of  1857,  which  had  the  fuiv 
ther  effect  of  placing  a  wife,  after  a  decree 
of  Judicial  separation.  In  the  position  of  a 
feme  sole  in  certain  respects,  had  changed 
the  situation  so  that  a  decree  of  separation 
did  affect  status,  and  reaches  the  conclusion 
that  the  decree  of  separation  does  not  affect 
status  in  the  sense  that  it  can  only  be  grant- 
ed in  the  courts  of  the  legal  domicile.  In  the 
present  case  it  does  not  appear  that  the  New 
York  sentence  of  separation  produced  any 
change  at  all  In  the  wife's  legal  capacity  or 
property  rights,  and  so,  according  to  the  Eng- 
lish view,  it  stands  on  the  same  basis  as  the 
old  ecclesiastical  divorce  a  mensa  et  thoro, 
and  does  not  affect  status. 

In  this  country  there  has  been  some  con- 
flict of  opinion  upon  the  point;  wlilch  in  Eng- 
land was  covered  by  the  act  of  Parliament, 
as  to  whether  a  divorce  a  mensa  et  thoro  re- 
lieved the  wife,  temporarily,  from  the  disa- 
bilities of  coverture;  but,  with  the  possible 
exception  of  West  Virginia,  where  a  peculiar 
force  and  effect  is  apparently  given  to  such 
divorces  by  tlie  special  provisions  of  their 
Code,  the  reported  cases  seem  to  agree  that 
a  decree  of  separation  does  not  affect  the 
marital  status. 

"In  our  mind  the  Judgment  of  separation  fronk 
bed  and  board  ia  not  a  final  proceeding.  The  re- 
lation of  husband  and  wife  still  tfdsts.  A  recon- 
ciliation may  put  an  end  to  the  judgment" 
State  V.  Ellis,  50  La.  Ann.  559,  23  South.  445. 

"Such  a  divorce  does  not  dissolve  the  mar- 
riage, though  it  separates  the  parties  and  es- 
tablishes separate  interests  between  them. 
*  *  *  The  divorce  is  only  a  legal  separation 
terminable  at  the  will  of  the  parties,  the  mar- 
riage continuing  in  regard  to  everything  not 
necessarily  withdrawn  from  its  operation  by 
the  divorce."    Dean  v.  Bichmond,  22  Moss.  401. 

"The  decree  of  divorce  a  mensa  et  thoro  be- 
tween the  parties  did  not  affect  their  status  of 
marriage;  it  simply  justified  their  separation." 
Drum  V.  Drum,  69  N.  J.  Law.  557,  55  Atl.  8«. 

"The  parties  still  remained  husband  and  wife 
in  the  eye  of  the  law.  •  •  •  An  action  for 
limited  divorce  is  really  an  appeal  to  a  court  of 
equity  by  one  of  the  parties  to  a  marriage  con- 
tract for  a  modification  of  the  marriage  rela- 
tions, duties  and  obligations  as  they  exist  at 
common  law."  People  v.  Cullen,  153  N.  Y.  629, 
47  N.  E.  894,  44  L.  B.  A.  420. 


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Conn.) 


BUBK  V.  XIjUS 


17 


"The  relation  of  Itnaband  and  wife  ia  not 
diasolTed.  It  only  andergoes  a  vei7  inconvenient 
■nspension  and  which  ia  intended  to  operate  aa 
a  continual  invitation  to  the  parties  to  return 
to  their  first  love."  Chancellor  Kent,  Barrere 
T.  Barreiv,  4  Johna.  Ch.  (N.  I.)  187-197. 

Independently  of  authority,  a  decree  that 
simply  creates  a  terminable  abnormal  rela- 
tion between  husband  and  wife  cannot  be  said 
to  afTect  the  underlying  marital  status.  At 
any  rate,  we  give  to  this  decree  of  separation 
all  the  eiSect  the  New  Tork  courts  claim  for 
it  when  we  treat  it  as  a  temporary  or  at  least 
a  terminable  modification  of  the  personal 
rights  and  obligations  of  the  parties  arising 
out  of  the  marriage  contract,  without  the 
slightest  Intention  of  rescinding  the  con- 
tract Itself.  It  leaves  the  contract  and  the 
permanent  contractual  relation  untoudied, 
and  it  excuses  one  of  the  parties  from  the  ob- 
ligation of  cohabitation,  while  still  holding 
the  other  party  to  the  performance  of  his 
other  contractual  duties.  Such  a  decree  must 
rest  on  the  Jurisdiction  of  a  court  of  equity 
to  regulate  the  conduct  of  the  parties  before 
it  From  the  wife's  standpoint  It  Is  a  per- 
sonal license  to  refuse  to  live  with  her  hus- 
band. In  theory,  a  court  of  equity  Inter- 
venes to  protect  her  against  the  assertion  oT 
a  legal  right  on  the  part  of  the  husband  on 
the  ground  that  it  is  unsafe  and  Improper  to 
require  her  to  submit  to  cohabitation.  From 
the  hurf»nd's  standpoint,  he  Is,  in  efTect,  pre- 
vented from  exercising  his  right  to  cohabita- 
tion, although,  as  Chancellor  Kent  says,  the 
right  of  cohabitation  Is  not  destroyed,  but  Is 
merely  suspended;  and  In  theory  a  court  of 
equity  assumes  the  right  to  control  his  con- 
duct for  the  time  being  for  the  protection  of 
his  wife. 

Such  being  the  nature  and  effect  of  the  de- 
cree when  both  of  the  parties  are  before  the 
court,  it  is  difficult  to  see  np<m  what  theory 
any  extraterritorial  effect  can  be  claimed  for 
the  decree  as  against  a  nonresident,  nonap- 
pearlng  defendant  not  served  with  process. 

When  both  parties  are  before  the  court,  the 
decree  Is  conclusive  as  to  the  Issues  of  fact 
upon  which  it  Is  based.  Harding  v.  Harding, 
supra.  But,  In  so  far  as  it  attempts  to  regu- 
late the  future  conduct  of  the  parties,  an  ex 
parte  decree  for  Judicial  separation  is  neces- 
sarily local  in  its  operation  on  the  nonappear- 
Ing  defendant. 

The  state  of  New  Tork  has  no  right  to  regu- 
late, and  we  do  not  suppose  this  decree  at- 
tempts to  regrulate,  the  manner  In  which  the 
nonresident,  nonappearing  husband  should 
conduct  himself  toward  his  wife  In  Connecti- 
cut Hie  decree  does  not  purport  to  authorize 
or  require  Mr.  and  Mrs.  Pettis  to  live  In 
0«nnectlcDt  In  a  state  of  marital  celibacy  un- 
known to  our  law.  It  merely  purports  to 
afford  the  wife  a  local  protection  against  the 
assertion  by  her  husband  of  his  right  of  co- 
habitation. And,  if  we  assume  that  in  spite 
of  its  ex  parte  character  it  accomplishes  that 


purpose,  we  give  it  aQ  the  efCect,  ao  far  as 
Mr.  Pettis  is  concerned,  which  can  be  claimed 
for  It 

[I]  We  have  thus  shown  that  a  decree  of 
Judicial  s^iaratfon  does  not  affect  status; 
that  it  is  not  a  final  decree,  but  is  terminable 
at  any  time  by  the  reconciliation  of  the  par- 
ties; that  It  rests  upon  the  Jurisdiction  of 
equity  to  control  the  conduct  of  parties  be- 
fore it,  and  that,  in  so  far  as  It  purports  ti> 
regulate  the  conduct  of  a  defendant  not  with- 
in Its  Jurisdiction,  It  Is  necessarily  local  In 
Its  operation.  Such  a  decree  has  no  resem- 
blance to  a  Judgment  In  rem.  It  Is  purely  per- 
sonal, and  therefore,  as  against  a  nonresident 
nonappearing  defendant,  entitled  to  no  extra- 
territorial effect,  by  way  of  comity  or  other- 
wise. 

There  Is  no  error.  The  other  Judges  con- 
curred, except  WHBELEK,  J.,  who  dissented. 


an.  Conn.  067) 


BURR  V.  ELLIS. 


(Supreme  Coort  of  Errors  of  Connecticut    June 
1,  1917.) 

1.  Contracts  *=»305(1)— Builwho  Contsact 
—Taking  Possession  or  Housb— Waivek  oc 

STIPU1.ATI0N. 

The  mere  fact  that  the  owner  took  posacasion 
of  a  house  built  for  him  and  made  a  payment 
for  extras  did  not  necessnrily  amount  to  a  waiv- 
er of  the  stipulations  of  his  contract,  as  a  pay- 
ment made  on  a  contract  may  or  may  not  affect 
the  contractual  relations  of  the  parties  accord- 
ing to  the  circumstances  of  the  case. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  SS  1398-1400,  1467-1475.] 

2.  Contracts  ^=3304(2)— Bira.DiNO  Contbact 

—Acceptance. 
In  view  of  the  facts,  where  a  contract  for 
the  conatmction  of  a  house  provided  that  final 
payment  was  to  be  made  when  the  work  was 
completed  to  the  owner's  satisfaction,  the  owner's 
act  m  taking  possession  of  the  house  and  mak- 
ing a  payment  of  $150  for  extras  was  not  such 
an  acceptance  as  to  relieve  the  builder  from  the 
performance  of  his  work  in  a  proper  manner 
before  he  was  entitled  to  payment  of  the  bal- 
ance due  him  for  his  extra  work. 

[E^.  Note.— For  other  cases,   see  Contracts, 
Cent.  Dig.  H  1458-1464.] 

3.  Costs  «=332(5)  —  Codkts  <8i=3l88(l)  —  City 
CoOBT— Double  Jubisdictior. 

Under  the  act  creatine  the  City  court  of  Dan- 
bury  (10  Sp.  Laws,  p.  MO),  the  court  has  not 
two  Jurisdictions,  a  justice  and  a  common  pleas 
jurisdiction,  though  the  act  provides  that  the 
court  shall  have  dvil  jurisdiction  in  all  cases 
where  the  demand  does  not  exceed  $500,  and 
shall  have  the  same  powers  to  proceed  to  tir, 
etc.,  and  enforce  judgment  in  all  cases  within  its 
jurisdiction  as  the  court  of  common  pleas,  and 
shall  have  concurrent  jurisdiction  with,  and  all 
powers  by  law  conferred  upon,  justices  of  the 
peace,  and  that  the  same  fees  and  costs  shall  be 
taxed,  where  the  damages  alle^red,  etc.,  are  $100 
or  less,  as  are  taxed  by  justices  of  the  peace, 
and,  where  the  damajres  amount  to  more  than 
$100,  the  same  fees  and  costs  shall  be  taxed  in 
the  city  court  as  are  taxed  and  paid  in  the 
court  of  common  pleas,  etc.,  and  in  an  action  for 
loss  than  $100,  where  the  counterclaim  was  for 
from  $100  to  $500,  the  court  properly  allowed 


ttsiVor  otbar  caaw  m«  same  topto  ud  Kar-NDUBER  la  oU  K«r-Numlwred  Digest!  and  Indaxn 
101  A.— 2 


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101  ATLANTIC  REPORTER 


(Conn. 


defendant  andi  costs  as  are  taxed  in  ooart  of 
common  pleoa^ 

[Ed.  Note.— For  other  cases,  see  Costs,  Cent 
Dig.  i  114.] 

4.  Process  e=>16&— Waivbb  or  Objbctiok. 

Where  the  cause  of  action  and  the  parties 
were  clearly  within  the  jurisdiction  of  tne  city 
court  of  Danbury,  and  plaintiff  appeared  and 
joined  issue  on  defendant's  counterclaim,  and 
trial  was  had  on  the  merits  of  sudi  branch  of 
the  case,  any  objection  that  plaintiff  might  have 
taken  to  the  process  was  waived. 

[Ed.  Note.— For  other  cases,  see  Process,  Cent 
Dig.  g§  250-255.] 

Appeal  from  City  Court  of  Danbury ;  John 
R.  Booth,  Judge. 

Action  by  Stephen  M.  Burr  against  John 
Q.  Ellis.  From  a  Judgment  for  plaintiff  on 
four  counts  of  the  complaint,  and  for  de- 
fendant on  his  counterclaim,  plaintiff  ap- 
peals.   No  error. 

Action  upon  a  building  contract  and  to  re- 
cover the  reasonable  value  of  extra  work  and 
materials,  brought  to  the  city  court  of  Dan- 
bury  and  tried  by  Booth,  J.  Judgment  for 
the  plaintiff  upon  four  counts  of  his  com- 
plaint for  $11.75,  and  for  the  defendant  upon 
his  counterclaim  of  $50,  awarding  the  de> 
fendant  $38.25  and  costs,  from  which  the 
plaintiff  appealed. 

Aaron  T.  Bates,  of  Danbury,  for  appellant. 
Robert  S.  Alexander,  of  Danbury,  for  appel- 
lee. 

RORABACK,  J.  The  plaintiff  brought  his 
action  alleging  a  full  performance  of  his  con- 
tract and  claimed  a  balance  due  of  $37.96 
for  extra  work  and  materials.  The  defendant 
in  his  answer  denied  full  performance  upon 
the  part  of  the  plaintiff  and  several  of  the 
claims  for  extra  work  and  materials  de- 
scribed in  the  plaintiff's  complaint  It  was 
also  averred  by  the  defendant  In  his  answer 
that  the  plaintiff  had  failed  and  neglected 
to  perform  several  Items  of  work  called  for 
In  his  agreement  In  his  counterclaim,  filed 
with  his  answer,  the  defendant  alleged  that: 

"During  the  progress  of  said  work,  the  plain- 
tiff and  defendant  agreed  that  a  canvas  roofing 
should  be  placed  on  the  rear  balcony  roof.  The 
plaintiff  so  negligently  and  unskiU£ully  per- 
formed said  work  that  said  roof  has  always 
leaked." 

An  answer  to  this  paragraph  of  the  coun- 
terclaim was  filed  by  the  plaintiff  which 
stated,  among  other  things,  tltat  the  plaintiff 
on  or  before  October  1,  1911,  duly  completed 
his  contract  and  delivered  the  house  into  the 
possession  of  the  defendant  who  accepted 
the  same  and  paid  the  plaintiff  in  full  for 
the  original  contract.  The  allegations  as  to 
the  Improper  performance  of  the  work  con- 
nected with  the  canvas  roof  were  denied. 
A  reply  was  filed  by  the  defendant  which 
denied  the  acceptance  of  the  house  by  him. 
These  allegations  and  denials  put  in  issue 
all  the  facts  necessary  to  raise  the  question 


of  the  acceptance  of  the  house  by  the  defend- 
ant Upon  this  question  the  trial  court  found 
for  the  defendant 

The  reasons  of  appeal  impute  error  to  the 
court  below  upon  the  question  of  acceptance 
upon  the  ground  that  it  was  not  put  in  issue 
In  the  pleadings,  and  further  that  the  find- 
ing shows  that  the  defendant  accepted  his 
house  and  paid  the  plaintiff  for  building  the 
same  and  thereby  waived  any  claim  for  dam- 
njjps  which  he  has  set  forth  in  his  counter- 
claim. 

[1]  In  this  connection,  the  record  discloses 
that  the  court  below  found  that  when  the  de- 
fendant paid  the  balance  of  the  contract 
price  on  August  5, 1911,  he  was  well  aware  of 
the  omission  of  the  plaintiff  to  perform  his 
work,  but  nevertheless  waived  the  same  and 
accepted  his  house  as  then  completed,  ex- 
cept in  so  far  as  a  canvas  roof  hereinafter 
described  was  concerned.  During  the  prog- 
ress of  the  work,  the  plaintiff  and  the  de- 
fendant agreed  that  a  canvass  roofing  should 
be  placed  on  the  rear  balcony  of  the  defend- 
ant's house  in  lien  of  the  tin  roof  specified 
in  the  contract  This  canvas  roofing  was 
placed  on  the  roof  in  such  an  Improper  and 
unskillful  manner  that  it  has  leaked  when- 
ever rain  has  since  occurred.  The  defendant 
was  not  aware  of  the  defects  in  this  roof  at 
the  time  of  final  payment  on  August  5,  1911, 
not  having  learned  of  them  until  afterwards, 
and  he  did  not  accept  his  house  In  so  far  as 
this  canvas  roof  was  concerned.  After  the 
defects  in  this  roofing  were  discovered  by 
the  defendant  and  before  the  payment  of  $150 
on  March  9,  1912,  for  extras  he  made  several 
requests  to  the  plaintiff  to  remedy  the  same ; 
but  the  plaintiff  at  all  times  neglected  to  do 
so.  The  mere  fact  that  the  defendant  took 
possession  of  his  house  does  not  necessarily 
amount  to  a  waiver  of  the  stipulations  of 
the  plalntifTs  contract  9  C.  J.  761,  and 
cases  cited  in  note  6;  15  A,  O.  970,  and 
cases  cited  In  notes  972,  973,  974.  A  payment 
made  upon  a  contract  may  or  may  not  affect 
the  contractual  relations  of  the  parties,  ac- 
cording to  the  circumstances  of  the  case. 
Pratt  V.  Dunlap,  85  Conn.  180,  185,  82  Atl. 
195;  Flannery  v.  Rohrmayer,  46  Conn.  558, 
559,  560,  33  Am.  Rep.  36. 

[2]  The  contract  In  the  present  case  pro- 
vides that  final  payment  is  to  be  made  when 
the  woric  is  completed  to  the  satisfaction  of 
the  owner.  Under  the  facts  disclosed  by  the 
finding,  the  action  of  the  defendant  In  taking 
possession  of  the  house  and  in  making  the 
payment  of  $150  was  not  such  an  acceptance 
as  to  relieve  the  plaintiff  from  the  perform- 
ance of  hia  wotlc  In  a  proper  manner  before 
he  was  entitled  to  the  payment  of  the 
balance  due  to  him  for  his  extra  work. 

The  trial  court  has  found  the  Issues  for 
the  defendant  upon  his  counterclaim  and  that 
there  is  $50  due  thereon.  The  finding  eets 
forth  the  subordinate  facts  upon  which  It 


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BTTTIiER  V.  FLINT 


19 


bases  this  condnslon.  An  examinatiim  of 
tbe  flndlns  shows  that  this  conclnslon  Is  not 
legally  inconsistent  with  the  subordinate 
facts  found,  and  the  decision  of  the  court 
below  Is  not  controlled  by  any  erroneous 
view  of  the  law.  Therefore  we  have  reached 
the  conclusion  that  there  is  no  error  upon 
this  branch  of  the  case. 

The  plaintiff  In  the  present  case  alleges 
a  cause  of  action  wherein  the  matter  In  de- 
mand is  less  than  $100.  The  counterclaim 
filed  by  the  defendant  alleges  a  cause  of  ac- 
tion wherein  the  matter  in  demand  is  over 
$100  and  less  than  $500.  An  act  creating  the 
dty  court  of  Danbury  (10  Sp.  Laws,  p.  1019, 
i  83)  provides  that: 

"Said  city  court  shall  have  civil  Jarisdiction, 
in  all  cases  io  law  and  equity  where  the  matter 
in  demand  does  not  exceed  five  hundred  dollars, 
*  •  *  and  shall  have  the  same  powers  to  pro- 
ceed to  try,  decide,  and  enforce  judgment  and 
execution  in  all  cases  within  its  jurisdiction,  as 
the  court  of  common  pleas,  and  said  city  court 
shall  have  concurrent  jurisdiction  with,  and  all 
the  powers  now  by  low  conferred  upon  justices 
of  the  peace.  •  •  •  The  same  fees  and  costs 
shall  be  taxed  where  the  damages  alleged,  or  the 
value  of  property  or  matter  in  controversy  are 
one  hundred  dollars  or  less,  as  are  taxed  by  jus- 
tices of  the  peace,  and  where  sedd  damages  or 
value  amount  to  more  than  one  hundred  dollare. 
the  same  fees  and  costs  shall  be  taxed  in  said 
city  court  as  are  taxed  and  paid  in  the  court  of 
common  pleas.  *  *  *  In  the  trial  of  all  cases 
before  the  city  court,  whertin  the  matter  in  dis- 
pute exceeds  one  hundred  dollars,  the  rules  of 
practice  in  the  court  of  common  pleas,  so  far 
as  the  same  may  be  applicable,  shall  govern." 

The  court  below  in  the  judgment  rendered 
alloweia  the  defendant  such  costs  "as  are 
taxed  and  paid  In  the  court  of  common 
pleas."  In  this  the  plaintiff  contends  there 
was  error. 

[31  The  plaintiff  claims  that  this  case, 
whpn  It  was  tried,  was  within  the  justice  of 
the  peace  jurisdiction  of  the  city  court,  and 
that  the  trial  court  erred  In  holding  that  it 
was  within  tbe  common  pleas  jurisdiction  of 
this  court  and  in  taxing  such  costs  as  are 
taxed  and  allowed  as  costs  In  the  court  of 
common  pleas.  The  plaintiff's  contention,  as 
we  understand  It,  Is  that  the  dty  court  of 
Danbury  has  two  jurisdictions,  a  justice  and 
a  common  pleas  one ;  and  that  the  defendant, 
by  bis  counterclaim,  In  effect  accomplished 
the  removal  from  one  jurisdiction  to  another 
in  the  same  manner  as  be  might  have  re- 
moved the  case  to  the  court  of  ccHumon 
pleas.  In  other  words,  he  conceives  the  city 
court  of  Danbury  as  two  courts  and  not  one. 
We  are  not  prepared  to  accept  sndi  a  proposi- 
tion. If  we  assume,  however,  that  the  plain- 
tlft  Is  right  as  to  tlie  dual  form  of  tbe  dty 
court  of  Danbui7,  we  cannot  acquiesce  In 
his  conclusion  as  to  costs. 

This  counterdalm  is,  in  substance,  an  action 
wherein  afflnnatlve  relief  Is  sought  by  the  de- 
fendant against  the  plaintiff.  In  effect,  it  was 
an  action  brought  by  the  defendant  against 
the  plaintiff.   In  thl»  connection,  our  statutes. 


permitting  the  interposition  of  counterclaims, 
should  be  construed  In  connection  with  the 
statutes  limiting  the  amount  over  which  our 
different  courts  have  jurisdiction.  This  limi- 
tation of  jurisdiction  necessarily  applies  to 
both  of  tbe  parties  to  a  case. 

[4]  In  the  present  case,  the  cause  of  action 
and  the  parties  were  clearly  within  the  juris- 
diction of  the  dty  cotirt  of  Danbury.  The 
plaintiff  appeared  and  joined  Issue  with  the 
allegations  of  tbe  defendant's  counterclaim, 
and  the  trial  was  had  thereon  upon  the 
merits  of  this  branch  of  the  case.  Any  ob- 
jection that  might  have  been  taken  to  tbe 
process  or  to  its  service  was  waived,  Hotch- 
klss'  Appeal,  32  Conn.  355.  It  follows  there- 
fore that  there  was  no  error  in  holding  and 
In  taxing  the  same  costs  as  are  allowed  In 
the  court  of  common  pleas. 

There  is  no  error.  The  other  Judges  con- 
curred. 

(91  Coan.  G30> 
BUTLER  T.  PMNT  et  ah 
(Supreme  Court  of  Errors  of  Connecticut 
June  1,  1917.) 

1.  WrLUS  9=»47d  —  CowsTBUOTioN  or  Wnx 

AND  CODIClIi— IKTENTION  OF  TBSTATOB. 

Where  language  used  in  a  codicil  is  ambig- 
uous, construction  thereof  will  depend  upon  the 
testator's  intent,  to  be  gathered  from  the  wiU 
and  codicil,  read  together  in  the  light  of  circom- 
stances  at  time  of  execution. 

[Ed.  Note.— For  other  cases,  tee  Wills,  Cent. 
Diig.  {  997.] 

2.  Wills  «=>538— Co  nstbdction— Death  of 
Devisee  Contiouous— Time  off  Death. 

Where  there  is  a  devise  to  A.,  and  in  case  of 
his  death  to  B.,  the  time  of  death  referred  to,  in 
the  absence  of  qualifying  words  or  indications  of 
a  contrary  intent,  is  death  before  testator's 
death. 

[Ed.  Note.— For  other  cases,  see  Wills,  Ctent. 
Dig.  H  1162,  1302-1809.] 

3.  Wills   ®=»538— Con  strtjction— Death   of 
Devisee  Contiguous— Time  of  Death. 

A  codicil  making  a  gift  over  to  testator's 
nephews'  in  case  his  wife's  niece,  a  devisee  under 
the  will,  "should  die  without  children  or  issue 
at  the  time  of  her  death,  held  to  refer  to  the 
devisee's  death,  either  before  or  after  testator's 
death,  since  at  the  time  of  the  execution  of  the 
will  the  devisee  was  a  minor  not  related  by 
blood  to  testator,  and  in  the  event  of  her  death 
before  the  testator  the  gift  would  have  lapsed 
as  provided  in  Comp.  1813,  tit.  31,  c.  1,  i  4, 
while,  in  the  event  of  her  death  after  testator's 
death,  the  property  would  have  passed  by  in- 
heritance to  her  heirs,  who  were  strangers  to 
testator's  blood,  who  presumably  occupied  a  dif- 
ferent position  in  his  regard  from  that  occupied 
by  his  next  of  kin,  all  of  which  were  remembered 
in  his  will. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent 
Dig.  K  1162,  1302-1309.] 

4.  Wills  <S=476— Corbtkuotiow  of  CIodicii. 
AND  Will. 

A  codicil  making  a  gift  over  to  testator's 
nephews,  in  case  of  death  of  his  wife's  niece, 
"in  respect  to  the  property  and  estate  which  in 
said  will  I  have  given"  a  devisee,  the  codicil  pro- 
vision referred  to  all  will  provisions  in  favor  of 
devisee. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  i  997.] 


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6.  Pebfetdities  «s>4(7)— LnoTATioir  ov  lawt 

Estate. 
A  gift  over  to  children  of  testator's  broth- 
er, !□  case  of  a  devisee's  deatn  without  issue, 
did  not  contravene  the  statute  against  perpetui- 
ties, where  the  brother  and  all  of  hia  children 
were  then  living,  and  all  survived  the  testator, 
since  the  donees  were  competent  to  take  when- 
ever the  contingency  might  happen,  and  consid- 
eration of  the  contingency  of  devisee  dying  with- 
out issue  was  unimportant,  since  it  did  not  hap- 
pen. 

[EM.  Note.— For  other  cases,  see  Perpetuities, 
Cent.  Dig.  S  12.] 

Case  Reserved  from  Superior  Court,  New 
Haven  County;  William  S.  Case,  Judge. 

Action  by  Georgle  L.  Butler,  executrix  of 
Sarab  V.  H.  Butler,  against  Albert  F.  Flint 
and  others,  administrators  of  the  estate  of 
children  of  Horace  Hotchklss.  Plaintiff  ap- 
pealed to  the  superior  court  In  New  Haven 
county  from  orders  and  decrees  of  the  court 
of  probate  for  district  of  New  Haven  deter- 
mining distributees  of  testamentary  funds, 
and  directing  distribution,  and  case  reserved 
upon  agreed  statement  of  facts.  Superior 
court  advised  to  afDrm  order  and  decree  of 
probate  court 

Samuel  R.  Hotchklss,  of  New  Haven,  died 
October  30,  1844,  without  Issua  He  was  sur- 
vived by  his  widow,  Sarah  Hotchklss,  and 
his  next  of  kin  and  heirs  at  law  were  his 
brother  Horace  B.  Hotchklss,  now  deceased, 
and  Harriet  E.  H.  Keep,  daughter  of  a  de- 
ceased sister.  At  the  time  of  Samuel's  death 
his  brother  Horace  liad  four  living  children, 
Charles  S.,  James  B.,  Emma,  and  Harriet  E. 
No  child  was  subsequently  bom  to  him. 
They  are  now  deceased,  and  the  administra- 
tors of  their  several  estates  are  the  parties 
defendant 

Samuel  left  real  and  personal  estate  and 
a  will,  duly  probated,  executed  October  19, 
1844,  and  a  codicil  thereto  executed  October 
20,  1844.  By  th<  first  paragraph  of  his 
will  he  gave  $2,000  absolutely  and  the  use  of 
all  the  balance  of  his  property  to  his  widow 
for  life  or  during  widowhood.  By  the  stx 
following  paragraphs  he  made  various  be- 
quests, subject  to  the  Interest  of  the  widow, 
to  sundry  persons  and  charitable  Institutions. 
By  the  eighth  and  tenth  paragraphs  be  gave 
the  remainder  over  in  sundry  pieces  of  real 
estate  to  his  niece  Harriet  E.  H.  Keep.  The 
ninth  paragraph  reads  as  follows: 

"I  give  and  devise  to  Sarah  V.  H.  Butler,  the 
niece  of  my  wife,  and  to  her  heirs,  aQ  my  right 
and  interest  in  the  house  and  land,  where  my 
mother  now  lives;   and  also  the  east  half  of  my 

farden  lying  next  west  of  _  and  adjoining  said 
ouse,  except  a  small  undivided  piece  of  land  at 
the  northeast  corner;  and  I  direct  my  said  ex- 
ecutors to  purchase  for  said  Sarah  V.  H.  But- 
ler the  remaining  rights  and  interest  in  said 
house  and  land,  with  the  property  of  my  estate, 
provided  it  can  be  bought  at  a  price  which  they 
think  reasonable,  which,  when  purchased,  I  de- 
vise to  said  Sarah  V.  H.  Butler  and  to  her 
heirs;  and  in  case  they  cannot  purchase  said 
right  as  above,  then  I  direct  them  to  purchase  or 
build  for  the  said  Sarah  a  suitable  and  com- 
fortable house  and  lot  of  land,  for  which  they  are 


to  pay  from  two  to  three  thonsand  dollars  from 
my  estate  at  their  discretion,  which  last-men- 
tioned house  and  land  I  devise  to  said  Sarah  V. 
H.  Butler  and  to  her  heirs;  and  in  that  case 
she  is  not  to  have  my  interest  in  the  house  and 
land  where  my  mother  lives,  and  said  east  half 
of  my  garden,  but  the  same  shall  belong  to  the 
residue  of  my  estate  hereinafter  disposed  of." 

The  eleventh  and  final  disposing  paragraph 
is  as  follows: 

"All  the  rest  and  remainder  of  my  property, 
of  every  kind  and  nature,  after  the  above  lega- 
cies and  devises  are  fully  paid  and  satisfied,  I 
give  and  devise  to  the  said  Harriet  E.  H.  Keep, 
and  to  the  said  Sarah  V.  H.  Butler,  and  to  their 
heirs,  to  be  equally  divided  betwe«i  them,  share 
and  share  alike." 

The  codicil,  after  republishing  and  reaf- 
firming the  will  except  as  therein  altered, 
provides  for  the  payment  to  his  mother  of 
$100  annually  during  her  Ufe,  and  then  pro- 
ceeds as  follows: 

"With  respect  to  the  property  and  estate 
which  in  said  will  I  have  given  to  Harriet  E.  H. 
Keep  and  to  Sarah  V.  H.  Butler,  it  is  my  will 
that  In  case  either  of  them  should  die  without 
leaving  children  or  issue  at  the  time  of  their  re- 
spective deaths,  that  then  the  property  and  es- 
tate given  in  said  will  to  the  one  so  dying  with- 
out children  or  issue  should  go  to  the  children  of 
my  brother  Horace  and  their  heirs,  and  in  such 
case  I  hereby  give  and  devise  the  same  to  the 
children  of  my  brother  Horace  and  to  their 
heirs,  to  be  equally  divided  among  them." 

The  real  estate,  which  is  the  subject-mat- 
ter of  the  prortsions  of  the  ninth  paragraph, 
has  been  sold  imder  the  authority  of  a  reso- 
lution of  the  General  Assembly  of  1848.  A 
portion  of  the  proceeds  of  that  sale,  deter- 
mined upon  and  set  apart  by  the  court  of 
probate,  forms  the  fund  now  in  the  hands  of 
the  Union  &  New  Haven  Trust  Company,  as 
trustee,  and  is  one  of  the  two  funds  now  In 
controversy.  The  other  fund  in  its  hands  as 
administrator  represents  one-half  of  the  rest 
and  residue  given  by  the  eleventh  paragraph. 

Sarah  Hotchklss  died  In  1845.  Sarab  V. 
H.  Butler,  who  was  her  niece,  survived  until 
June  11,  1915.  Georgle  Lu  Butler,  as  execu- 
trix of  her  will,  is  the  plaintiff  herein.  She 
claims  that  the  two  funds  in  the  bands  of 
the  trust  company  form  a  part  of  Sarah  But- 
ler's estate,  which  she,  in  her  capacity  as  ex- 
ecutrix, is  entitled  to  receive.  The  defend- 
ants, as  administrators  of  the  estates  of  the 
several  children  of  Horace  Hotchklss,  daim 
to  be  entitled,  to  these  funds  in  equal  shares 
between  them.  The  court  of  probate  decided 
in  favor  of  the  latter  contention,  and  passed 
its  order  of  distribution  accordingly.  Other 
facts  appearing  of  record  are  sufficiently 
stated  in  the  opinion. 

George  E.  Beers,  of  New  Haven,  and  Noah 
H.  Browning,  of  Hudson,  N.  T.,  for  plaintiff. 
Albert  F.  Flint,  of  Boston,  Mass.,  and  Thom- 
as Hooker,  Jr.,  of  New  Haven,  for  defendants. 

PRENTICE,  O.  J.  (after  stating  the  facta 
as  above).  The  property  now  in  the  bands 
of  the  trust  company,  as  administrator  and 


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trustee,  in  the  form  of  cash  awaiting  dis- 
tribution to  its'  ultimate  owners,  r^resents 
that  given  to  Barab  V.  H.  Butler  by  the  ninth 
and  eleventh  paragraphs  of  the  will,  and  con- 
fessedly is  to  be  distributed  as  the  property 
80  given  would  have  been  if  it  had  not  been 
converted. 

The  gifts  made  In  these  paragraphs  In 
Sarah  Butler's  favor  are  undeniably  absolute 
ior  in  fee,  subject  to  the  use  of  the  testator's 
widow,  long  since  terminated  by  her  death. 
Were  there  no  codicil,  the  two  funds  now  in- 
volved, standing  as  they  do  in  the  place  of 
the  original  property  bequeathed  and  devised 
would  belong  to  her  estate,  since  she  srarvived 
him. 

By  the  codicil  provision  is  made  for  a  dif- 
ferent disposition  should  Sarah  Butler  die 
without  leaving  a  diild  or  issue  at  the  time 
of  her  death,  to  wit,  to  the  children  of  the 
testator's  brother  Horace  and  their  heirs. 
By  force  of  this  provision,  and  by  reason  of 
the  fact  that  Sarah  Butler  died  without  isi- 
sue,  the  administrators  of  Horace's  four  diU- 
dren,  all  of  whom  survived  the  testator, 
claim  to  be  entitled  to  the  two  funds,  and  the 
court  of  probate,  in  passing  the  order  appeal- 
ed from,  accepted  that  view. 

The  issues  presented  by  the  cfmflicting 
elaims  of  the  parties  involve  three  control- 
ling inquiries: 

(1)  Does  the  language  of  the  codicil,  de- 
scriptive of  the  contingency  upon  the  happen- 
ing of  which  the  gift  to  the  children  of  Hor- 
ace is  made  to  become  operative,  refer  to  the 
death  of  Sarah  Butler  at  any  time  or  only 
to  her  death  before  the  testator? 

(2)  If  Sarah  Butler's  death  at  any  time  is 
the  contingency  specified  in  the  codicU,  is 
the  subject-matter  of  the  gift  over  to  the  chil- 
dren of  Horace  comprehensive  of  that  In- 
cluded in  the  gifts  in  favor  of  Sarah  Butler 
contained  in  both  paragraphs  9  and  11  or 
only  in  one  of  them? 

(3)  If  the  gift  to  the  children  of  Horace, 
as  made,  was  one  to  take  effect  in  the  contin- 
gency of  Sarah  Butler's  death  whenever  oc- 
curring, was  it  a  valid  or  void  one,  in  view 
of  the  statute  against  perpetuities  in  force 
at  the  time  the  will  was  executed? 

It  is  evident  that  the  testator,  when  he 
determined  to  make  a  codicil  to  his  will,  ex- 
ecuted only  seven  days  previously,  was  in- 
fluenced by  some  purpose  to  change  bis  pro- 
visions in  respect  to  some  matter  which  he 
regarded  of  sufficient  inqwrtanoe  to  Justify 
him  in  that  act  That  he  intended  to  make  a 
change  in  his  dispositions  previously  made 
in  favor  of  Harriet  Keep  and  Sarah  Butler 
is  clear.  The  only  question  is  as  to  the  na- 
ture and  extent  of  that  change.  Unfortunate- 
ly the  language  used  by  him  to  express  his 
purpose  is  susceptible  of  two  constructions. 

[1]  The  question,  therefore,  like  all  others 
where  the  construction  of  testamentary  pro- 
Tisions  is  concerned,  is  one  whose  answer 


is  to  t>e  found  In  the  testator's  intent,  to  be 
gathered  as  best  it  can  from  the  will  and 
oodicU  themselves  when  read  together,  and 
in  the  light  of  the  circumstances  surround- 
ing him  at  the  time  of  their  execution. 

[2]  Certain  artificial  rules  are  found  in  the 
books  designed  to  aid  in  the  search  for  tes- 
tamentarj'  intent.  One  of  these  has  had  our 
repeated  approval,  to  wit,  that  where  there 
Is  a  devise  to  A.,  and  in  case  of  his  death  to 
B.,  the  time  of  death  referred  to,  in  the  ab- 
sence of  qualifying  words  or  other  indica- 
tion of  a  contrary  intent,  is  death  before  the 
testator's.  Chesebro  v.  Palmer,  68  CJonn.  207, 
211,  36  Atl.  42;  Webb  v.  lines,  5T  Oonn.  154, 

156. 17  Atl.  90 ;  Johnes  v.  Beers,  67  Conn.  295. 

303. 18  Atl.  100, 14  Am.  St  Rep.  101.  In  Law- 
lor  v.  Holohan,  70  Conn.  87,  90,  38  Atl.  903, 
this  rule  of  presumption  was  extended  so 
a;^  to  be  inclusive  of  cases  where  the  devise 
to  A.,  and  in  the  event  of  his  death  without 
issue  to  B.,  and  the  statement  was  made  that 
the  rule  so  broadly  applied  is  the  well-set- 
tled one  of  this  Jurisdiction.  This  statement 
of  principle  is  invoked  by  the  plaintiff.  An 
examination  of  the  eight  cases  cited  in  sup- 
port of  the  assertion  made  in  Lawlor  v.  Hol- 
ohan shows  scant  basis  for  it  Some  of  them 
are  cases  of  the  first  class  above  referred  to, 
and  no  broader  rule  of  presumptive  construc- 
tion is  either  applied  or  stated  than  one  per- 
tinent to  such  a  situation.  Nearly  all  the 
others  were  disposed  of  upon  the  strength  of 
the  affirmative  evidence  of  intent  disclosed 
by  the  will,  and  without  appeal  to  any  rule 
of  presumption  whatsoever.  The  last  one  of 
the  eight  cases  is  Chesebro  v.  Palmer,  with 
its-  strong  assertion  of  a  doctrine  quite  con- 
trary to  that  of  tawlor  v.  Holohan.  In  the 
former  case  the  general  subject  involved  Iiad 
a  full  and  exhaustive  discussion.  The  con- 
clusion was  reached  that  cases  where  the 
gift  over  is  made  In  the  contingency  of  the 
death  of  the  first  devisee  without  issue  are 
to  be  distinguished  from  those  where  the  con- 
tingency is  the  death  of  the  first  devisee 
merely;  and  that  the  rule  of  presumption  to 
be  applied  in  the  former  class  of  cases,  in  the 
absence  of  other  indication  of  testamentary 
intent  is  that  the  death  without  issue  of  the 
first  devisee  has  reference  to  his  death  under 
all  circumstances.  Page  213.  The  essential 
difference  between  the  two  classes  of  the 
cases,  pointed  out  in  Chesebro  v.  Palmer, 
needs  only  to  be  called  to  one's  attention  to 
he  appreciated,  and  the  difference  in  the  per- 
tinent rule  of  construction  applicable  to  each 
follows  as  a  logical  consequence. 

In  the  present  case,  however,  we  are  not 
driven  to  rely  upon  a  rule  of  presumption. 
Such  rules  are  helpful  when  the  intent  of 
the  testator  is  not  otherwise  disclosed,  but 
shorn  of  importance  when  it  is.  Chesebro  v. 
Palmer,  68  Conn.  207,  213,  36  Atl.  42;  Law- 
lor V.  Holohan,  70  Conn.  87,  90,  38  Atl.  903; 
St.  John  V.  Dann.  66  Conn.  401,  409,  34  Atl. 
110. 


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101  ATLANTIC  REPORTER 


(Conn. 


[i3I  llie  present  record  Is  not  as  inform- 
ing as  it  might  be  of  facts  pertinent  to  an 
Inquiry  as  to  tbe  testator's  Intent,  but  they 
are  by  no  means  wanting.  Tbe  will  was 
executed  only  eleven  days  before  the  testa- 
tor's death,  and  the  codicil  four.  Whether 
or  not  Its  execution  was  in  anticipation  of 
the  early  death,  which  so  soon  followed,  we 
have  no  knowledge  save  as  the  facts  stated 
may  furnish  an  Indication.  Both  Sarah  But- 
ler and  Harriet  Keep,  whose  name  is  as- 
sociated with  hers  tn  the  residuary  gift  and 
in  the  codicil  pro\'ision,  were,  at  the  time  the 
will  was  made,  minors  neither  of  them  over 
seventeen  years  of  age.  Sarah  Butler  was 
not  more  than  eleven.  The  latter  young 
woman  was  not  related  by  blood  to  the  testa- 
tor, but  was  a  niece  of  his  wife.  Harriet 
Keep  was  his  niece  and  one  of  bis  two  heirs 
at  law,  the  other  being  Horace  Hotchkiss, 
whose  children  were  made  beneficiaries  of 
the  limitation  over  In  the  codicil. 

It  will  be  noted  that,  under  the  will  and 
the  statute  then  In  force  (Compilation  of  1839, 
tit  31,  c.  1,  {  4),  the  gifts  to  Sarah  Butler,  In 
the  event  of  her  decease  before  the  testator, 
would  have  lapsed,  and  the  property  given 
to  her  have  passed  to  his  next  of  kin  as 
Intestate  estate.  In  the  event  of  her  death 
after  his,  the  property  would  have  passed 
by  inheritance  to  her  heirs,  who  were  stran- 
gers to  his  blood,  and  presumably  occupied 
a  very  different  position  in  his  regard  from 
that  occupied  by  his  next  of  kin,  all  remem- 
bered in  his  will.  That  was  a  result  which 
he  might  well  have  desired  to  avoid.  By  the 
terms  of  the  codicil  interpreted  as  a  provi- 
sion for  the  contingency  of  Sarah  Butler's 
decease  whenever  occurring.  It  would  have 
been  avoided,  and  the  property  given  to  her 
secured  In  that  event  to  persons  of  his 
blood. 

Reading  the  will  and  codicil  in  the  Jight 
furnished  by  these  facts,  we  are  unable  to  es- 
cape the  conclusion  that  the  testator's  intent 
In  the  making  of  his  codicil  was  to  provide 
for  the  contingency  of  Sarah  Butler's  death, 
whether  before  or  after  his  own,  and  espe- 
cially in  the  latter  event,  and  that  such  In- 
tent is  sufficiently  apparent  to  call  for  that 
construction  of  his  language. 

[4]  The  language  of  the  codldl  is  too  defi- 
nite and  distinct  to  admit  of  doubt  or  uncer- 
tainty as  to  the  comprehension  of  the  subject- 
matter  of  both  the  gifts  in  favor  of  Sarah 
Butler  contained  In  the  ninth  and  ele\'enth 
paragraphs  of  the  will,  within  the  scope  and 
operation  of  the  codicil.  When  the  testator 
makes  provision  "In  respect  to  th?  property 
and  estate  which  in  said  will  I  have  given 
to  Sarah  V.  H.  BuUer,"  there  is  neither  am- 
biguity nor  lack  of  precision  in  his  language, 
and  there  Is  nothing  to  Indicate  that  it  was 
used  to  convey  any  other  than  its  ordinary 
and  natural  meaning. 

[t]  The  only  gift  expressed  in  that  portion 
of  the  codicil  under  review  is  one  to  the  chil- 
dren of  the  testator's  brother  Horace.    Hor- 


ace was  then  li\-lng;  so  were  all  of  his  chil- 
dren, and  he  and  they  all  survived  the  tes- 
tator. That  gift  in  Itself  certainly  did  not 
contravene  the  statute  against  perpetuities. 
Tbe  donees  were  competent  to  take  when- 
ever the  time  should  come.  If  it  ever  should, 
when  their  right  to  do  so  had  become  fixed 
by  the  happening  of  the  contingency  specified. 
In  so  far  as  the  gift  to  these  children  cut 
down  or  changed  the  character  of  those  In 
favor  of  Sarah  Butler  contained  In  the  will 
so  that  the  will,  when  read  in  connection 
with  the  codicil  was  made  to  bestow  some- 
thing less  than  a  fee  In  lands  and  absolute 
estate  in  personalty,  it  appears  that  any  pos- 
sible Invalidity  attached  to  the  title  thus 
attempted  to  be  bestowed  could  not  reach 
the  estate  given  to  Sarah  Butler.  Whether 
or  not  the  language  of  the  will  Is  capable  of 
a  construction  by  which  an  alternative  gift 
was  made  to  the  "heirs"  of  Horace's  children 
In  the  event  that  the  children  should  die  not 
having  taken  a  vested  estate  and  whether 
or  not  such  gift,  if  made,  would  be  a  valid 
one,  are  wholly  unimportant  questions.  Hor- 
ace's children,  having  survived  the  testator, 
lived  to  taktf  a  vested  interest,  which,  upon 
Sarah  Butler's  death  without  issue,  became 
an  Indefeasible  absolute  estate. 

The  superior  court  Is  advised  to  render 
Judgment  affirming  the  order  and  decree  of 
the  court  of  probate. 

No  costs  In  this  court  will  be  taxed  in  fa- 
vor of  any  of  the  parties. 

In  this  opinion  the  other  Judges  concurred. 


(91  Coon.  &98) 
PASCUCCI  V.  ROSSI  et  al. 

(Supreme  Court  of  Errors  of  Connecticat 
June  1,  1917.) 

Dills  and  Notes  <S=>4SJ>(7>— Pleading  and 

Pbook— Vabiance. 
There  is  no  variance  between  a  complaint  al- 
leging that  defendant  made  his  note  payable  to 
tbe  order  of  another  as  attorney  and  agent  of 
plaintiff  and  proof  that  the  note  was  made  sim- 
ply to  such  other  person,  since  the  words  in  tho 
complaint  "attorney  and  agent  for  the  plaintifT' 
should  be  construed  as  descriptive  only. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  H  1617-1642.] 

Appeal  from  City  Court  of  New  Haven; 
John  R.  Booth,  Judge. 

Action  by  Vincenzo  Pascucd  against  An- 
tonio T.  Rossi  and  others  on  a  note.  Facts 
found  and  Judgment  rendered  for  tbe  plain- 
tiff for  $382.73,  and  tbe  defendant  named 
appeals.    No  error. 

Robert  J.  Woodruff,  of  New  Haven,  for 
appellant  Philip  Pond,  of  New  Haven,  for 
appellee. 

RORABACK,  J.  The  plalntlfrs  cause  of 
action  Is  described  In  his  complaint  as  fol- 
lows: 

"On  February  1,  1916,  tho  defendant  A.  T. 
Rossi  made  his  note  dated  on  that  day  and 
thereby   promised  to  pay  to  the  order  of  one 


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OSTMAN  ▼.  LEB 


Isadore  W.  Resnlk,  attorney  aad  agent  of  tho 
plaintiff,  the  sum  of  $380,  three  months  after 
date,  at  the  Mechanics'  Bank,  New  Haven." 

Tbe  language  of  tbe  note  which  was  In- 
troduced in  evidence  against  the  objection  of 
•the  defendant  was  that: 
"380.00        New  Haven,  C<mn.,  Feb.  1,  IMS. 

"Three  nonths  after  date  I  promise  to  pay 
to  the  oi\.cr  of  Isadore  \V.  Rcsnik,  three  hun- 
dred and  eighty  (?.3»SO.OO)  dollars,  at  the  Mechan- 
ics' Bank,  New  Uavcn,  Connecticut. 

"A.  T.  Bossi." 

The  defendant  contends  that  the  allega- 
tion of  the  complaint  was  that  the  defendant 
promised  to  pay  to  the  order  of  one  Isadore 
W.  Resnlk,  attorney  and  agent  of  the  plain- 
tiff, the  sum  of  ?380.  The  proof  offered  by 
the  plaintiff  was  a  note  drawn  to  Isadore 
W.  Resuik  alone,  and  indorsed  by  him  to  the 
plaintiff,  whose  name  did  not  appear  there- 
on. It  is  claimed  that  the  allegations  in  the 
complaint  were  not  supported  by  the  proof, 
and  that  the  variance  was  fatal. 

The  plaintiff's  complaint  does  not  purport 
to  contain  an  accurate  description  of  the 
note.  The  words  "attorney  and  agent  for  the 
plaintiff"  should  be  construed  as  descriptive 
of  the  capacity  in  wliich  Besnik  was  acting 
for  the  plaintiff. 

These  words  fully  apprised  the  defendant 
of  the  facts  upon  which  the  plaintiff  under- 
toolc  to  rely,    ^nils  was  good  pleading. 

Acts  and  contracts  may  l>e  stated  ac- 
cording to  thdr  legal  effect,  but  in  so  doing 
the  pleading  should  be  such  as  fairly  to 
apprise  the  adverse  party  of  the  state  of 
facts  which  It  Is  Intended  to  prove.  An 
act  or  pror'se  by  a  principal  (other  than  a 
corporation^  If  in  fact  proceeding  from  an 
agent  known  to  the  pleader,  should  be  so 
stated.  See  Jacobson  v.  Hendricks,  8.3  Conn. 
120,  127,  75  Atl.  85;  Clark  v.  Wooster,  79 
Conn.  120,  131,  64  AU.  10.  That  being  so  it 
necessarily  follows  that  the  plaintiff's  cause 
of  action  was  properly  stated  In  his  com- 
plaint, and  that  there  was  no  variance  be- 
tween allegation  and  proof. 

The  finding  of  the  court  Ijelow  fully  dis- 
poses of  the  defendant's  claim  that  the  note 
In  question  was  never  indorsed  by  the  plain- 
tiff as  alleged  In  the  complaint. 

There  Is  no  error.  The  other  Judges  con- 
curred. 

(91  Conn.  600) 

ESPOSTTO  T.  TAMMARO. 

(Supreme  Court  of  Errors  of  Connecticut. 
June  1,  1017.) 

Appeal  and  Erbob  ©laieO— Resebvation  of 
Grounds  of  Review  —  Consideration  of 
QtiBSTioNS  Not  Made  Below. 
Where  the  (^nestioas  of  law  attempted  to  be 

raised  in  the  assignments  of  error  were  not  made 

in  the  conrt  below,  the  assignments  will  not  be 

considered. 

[E!d.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  $§  1018-1034.] 


Appeal  from  Superior  Court,  New  Haven 
County;  Joseph  P.  Tuttle,  Judge. 

Action  by  Vincenzo  Esposito  against  Julia 
Tammaro.  From  a  Judgment  for  plaintiff, 
defendant  appeals.    No  error. 

Robert  J.  Woodruff,  of  New  Haven,  for  ap- 
pellant Charles  L.  Brooks  and  Harry  L. 
Brooks,  both  of  New  Haven,  for  appellee. 

PER  CURIAM.  The  assignments  of  error 
do  not  merit  consideration;  as  it  appears 
that  the  questions  of  law  which  are  attempt- 
ed to  be  raised  therein  were  not  made  in  the 
court  below. 

There  is  no  error. 


(91  Cionn.  731) 
OSTMAN  V.  LEB. 

(Supreme  Court  of  Errors  of  Connecticut. 
June  14, 1917.) 

1.  Sales  «=>178(3)— Accbptancb— Evidbscb— 

SufTICIENCT. 

Assuming  that  defendant  agreed  to  store  a 
car  for  plaintiff,  and  to  purchase  it,  if  found 
suitable,  within  a  few  months,  his  retaining:  the 
car  for  over  a  year  without  requiring  plaintiff 
to  remove  it,  and  his  advertising  it  for  sale  with 
property  of  his  own,  constituted  in  law  an  ac- 
ceptance, which  he  could  not  afterwards  with- 
draw. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  I  453.] 

2.  Courts  «=>190(2)  —  Scopb  of  B«yniw  — 
Judgments  Appealable. 

11  Sp.  Laws  1803,  p.  166,  establishing  a 
court  for  the  town  of  Stonington,  and  section 
24  thereof,  as  to  trials  and  appeals,  give  a  right 
of  appeal  identical  with  that  existing  in  the 
case  of  a  decision  in  a  related  matter  by  a  judge 
Of  the  superior  court 

Appeal  from  Town  Court  of  Stonington; 
Lorenzo  D.  Fairbrotber,  Judge. 

Action  by  Frederick  Ostman  against  Harry 
P.  Liee.  From  an  order  setting  aside  a  ver- 
dict for  defendant,  defendant  appeals.  Ko  er- 
ror. 

Benjamin  H.  Hewitt,  of  New  London,  for 
appellant  Herbert  W.  Rathbun,  of  Mystic, 
for  appellee. 

PER  CURIAM.  Tbe  motion  to  erase  the 
appeal  because  of  Its  failure  to  contain  a 
prayer  for  relief  is  not  well  taken.  We  have 
recently  passed  upon  the  precise  point  and 
the  reasons  there  stated  are  equally  applica- 
ble here.  Douthwright  v.  Champlin,  91  Conn. 
524,  100  Atl.  97.  The  motion  to  set  aside 
the  verdict  was  properly  granted. 

The  plaintiff  offered  evidence  to  prove  that 
the  defendant,  after  examination,  on  May  5, 
1915,  agreed  to  purchase  an  old  automobile 
belonging  to  him  for  $150,  payable  in  two 
weeks;  that  the  defendant  took  the  automo- 
bile into  his  possession  on  the  same  after- 
noon, and  stiU  retains  it  and  has  paid  no 
l>art  of  the  purchase  pricjs.    The  defendant 


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101  ATIiANTIC  REPORTER 


(Me. 


offered  evidence  to  prove  tbat  he  agreed  Trith 
the  plalntift  to  store  the  aatomobile  until 
fall,  free  of  charge,  and  If,  upon  examina- 
tion, it  was  then  found  to  be  In  good  condi- 
tion, and  he  could  use  it,  he  would  purchase 
it,  and  pay  for  it  $150,  and  that  In  Novem- 
ber, 1915,  he  found  the  automobile  was  not 
what  he  could  use.  If  the  decision  of  the 
case  depended  exclusively  upon  the  weighing 
of  these  respective  claims  in  the  light  of  the 
probabilities,  and  of  the  character  and  qual- 
ity of  the  testimony,  we  should  hold  that 
these  were  considerations  for  the  jury,  and 
that  the  trial  court  was  without  authority  to 
substitute  its  Judgment  for  that  of  the  Jury. 
But  the  defendant's  own  testimony  was  that 
he  had  kQ>t  possession  of  the  automobile 
from  May  5,  1915,  to  the  trial,  January  2, 
1917,  and  had  neither  returned  it  to  the 
plaintiff,  nor  told  him  to  take  it  away,  and 
tliat,  although  he  had  frequently  i>assed  the 
plaintiff's  place  of  business,  he  had  not  called 
upon  him  or  told  him  the  automobile  was 
unsatisfactory,  but  had  advertised  it  for  sale 
together  with  other  property  of  his  own. 

[1]  Assuming  that  the  Jury  found  the 
agreement  of  sale  as  tlie  defendant  claimed, 
his  subsequent  conduct  in  not  Informing  the 
plaintiff,  in  the  fall  of  1915,  that  the  auto- 
mobile was  not  in  good  condition,  and  that 
he  could  not  use  it,  and  in  assuming  owner- 
ship over  it  by  keeping  possession  of  it  down 
to  the  trial,  and  by  advertising  it  for  sale 
as  bis  own,  constituted  in  law  an  acceptance 
of  the  automobile  by  the  defendant  He 
cannot  now  be  permitted  to  withdraw  from 
a  sale  long  since  consummated.  The  ground 
of  the  decision  of  the  trial  court  would  be 
di£Bcult  to  Justify;  the  decision  Itself  was 
right 

[2]  Upon  the  argument  the  plaintiff  claim- 
ed that  the  act  establishing  a  town  court  of 
Stonlngton,  ai^roved  April  6,  1893  (Special 
Laws,  volume  11,  p.  166),  does  not  provide 
for  an  appeal  from  the  decision  granting  a 
motion  to  set  aside  a  verdict  As  we  read 
section  24  of  this  act,  we  think  that  it  in- 
tended to  give  and  did  give  a  right  of  ap- 
peal identical  with  that  existing  in  the  case 
of  a  decision  in  a  related  matter  by  a  Judge 
of  the  superior  court 

There  is  no  error. 


(116  He.  97) 

ZOBES  T.   INTERNATIONAL  PAPER  (X). 

(Supreme  Judicial  Court  of  Maine.     June  20, 
1917.) 

1.  Masteb  awd  Servant  «=»281(9)— Contrib- 
tJTOBT  Nkgugencb— What  Constitutes. 
Evidence  that  a  Russian  laborer,  unable  to 
read  English,  entered  an  elevator  shaft  four 
days  after  entering  defendant  paper  company's 
employment  and  was  crushed  by  a  descending 


elevator,  does  not  sustain  a  finding  of  contribn- 
tory  negligence,  although  there  was  a  warning 
sign  in  English  at  the  shaft's  entrance. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  SS  993.  996.1 

2.  Masteb  and  Servant  iS=»121(7),  157— Neo- 
LIOENCE  OF  Masteb— What  Constitutes. 

Defendant  paper  company  employing  a  lar^e 
number  of  illiterate  foreigners  held  negligent  in 
maintaining  an  unlighted  elevator  shaft  opening 
guarded  only  by  a  warning  sign  in  EugUsb, 
which  an  injured  employ^  could  not  read. 

USA.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  U  230,  303.] 

3.  Damages  <8=»132(1)— Personal  Injuries. 

$4,000  damages  is  not  excessive  for  injuries 
causing  a  laborer  to  be  confined  seven  months  in 
the  hospital,  to  undergo  a  serious  surgical  op- 
eration costing  $400  or  $500,  and  for  impairment 
of  earning  ability  in  the  fnture  due  to  practical 
loss  of  use  of  both  legs. 

[EM.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  i  372.] 

Exceptions  from  Supreme  Judicial  (Tourt, 
Oxford  County,  at  Law. 

Action  by  Tones  Zobes  against  the  In- 
ternational Paper  Company.  E^m  an  order 
of  nonsuit  plaintiff  excepts.  Exceptions 
sustained,  and  Judgment  for  plaintiff  in  the 
sum  of  $4,000. 

Argued  before  OOKNISH,  BIRD,  HALEY, 
HANSON,  and  MADIQAN,  J  J. 

William  A.  Oonneilan  and  Wilbur  a 
Whelden,  tK>th  of  Portland,  for  plaintiff. 
WllUam  H.  Gulliver  and  Arthur  L.  Robin- 
son, both  of  Portland,  for  defendant 


MADIQAN,  J.  A  laborer  in  the  employ  of 
the  defendant  In  March,  1915,  entered  the 
bottom  of  an  open  elevator  well  in  the  de- 
fendant's mill  at  Rumford  to  urinate,  and 
was  injured  by  a  descending  elevator.  Com- 
ing to  this  country  from  a  small  rural  town 
in  Russia,  he  had  worked  for  eight  months 
piling  boards  in  the  Pullman  yards  in  Chi- 
cago, after  which  be  worked  on  a  farm  until 
entering  the  defendant's  employ,  where  he 
had  been  four  days  at  the  time  of  the  ac- 
cident; his  work  with  the  defendant  con- 
sisting in  loading  and  unloading  pulp  wood 
in  the  yard  and  in  the  mill.  He  was  25  years 
of  age,  unable  to  read  English,  and  speaking 
it  very  slightly. 

The  stoneroom,  80  called,  in  the  basement 
of  the  mill,  contained  a  number  of  lockers 
in  which  employes  kept  their  clothes  and 
lunch  boxes.  While  this  room  tiad  four  out- 
lets for  electric  lights,  and  one  before  the 
shaft,  but  one  light  was  in  commission  at 
the  time  of  the  accident  The  well  was  seven 
feet  wide  and  thirteen  feet  long,  and  opened 
directly  into  the  stoneroom,  from  which  came 
its  only  light  There  were  no  wheels  or 
machinery  in  the  lower  part  of  the  well,  the 
floor  of  which  was  clay,  covered  to  a  certain 
extent  with  waste  and  paper  scraps,  and 


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WOODMAN  T.  BUTTEHFIELD 


2S 


some  inches  lower  tban  the  concrete  floor  of 
the  atoneroom  to  the  level  of  which  the  floor 
of  the  elevator  could  be  brought.  This  ele- 
vator was  little  used  at  nlg<ht  and  was  kept 
locked,  so  that  when  needed  it  was  necessary 
to  procure  the  key. 

The  plaintiff  was  working  on  two  consec- 
utive eight-hour  shifts,  from  3  in  the  aft- 
ernoon untU  11  at  night,  and  from  that  hour 
until  7  In  the  morning.  We  do  not  under- 
stand that  any  special  time  was  set  apart  for 
meals,  but  the  laborers  with  whom  he  work- 
ed were  accustomed  to  take  certain  time  out 
for  lunch.  Having  eaten  at  11,  at  6  in  the 
morning  he  went  to  the  stoneroom  to  eat 
again.  There  were  no  toilets  in  the  stone- 
room,  but  in  another  part  of  the  mill  there 
were  toilets,  or  troughs,  of  the  existence  of 
which  the  plaintiff  testifies  he  had  no  knowl- 
edge. Not  having  had  occasion  to  do  more 
tlian  urinate  during  the  four  days  he  had 
been  at  work,  he  never  had  searched  or  in- 
quired for  toilets.  Having  seen  one  of  his 
fellows  go  to  the  well  to  urinate  the  day 
before,  as  It  had  a  soft,  stinky  bottom,  he 
supposed  it  was  not  improper  for  him  to  do 
likewise.  There  was  no  gate  or  barrier 
across  the  opening  into  the  well,  but  above 
the  door  or  on  one  side  of  it  was  a  sign 
printed  in  English,  "Elevator,  employes  not 
allowed  to  use,"  signed  by  the  corporate  name 
of  the  defendant  Having  finished  his  lunch, 
he  entered  tlie  well  for  the  purpose  above 
stated,  and  the  man  who  ronoved  chips, 
needing  the  elevator,  started  it  downward 
from  the  floor  next  above,  crushing  the  plain- 
tiff so  seriously  as  to  make  necessary  a  seri- 
ous operation  to  the  spine,  and  leaving  him 
thereafter  in  such  a  condition  that  his  legs 
are  practically  useless  for  hard  labor  for 
the  balance  of  his  life. 

[1]  Under  the  conditions  disclosed  by  the 
evidence,  we  do  not  feel  that  this  foreigner, 
with  no  knowledge  of  mills  and  machinery, 
knowing  nothing  of  the  existence  of  the 
elevator,  ignorant  of  the  language  In  which 
the  warning  sign  was  written,  fitted  by  his 
life  and  training  to  be  a  mere  hewer  of  wood 
and  drawer  of  water,  was  guilty  of  con- 
tributory negligence.  He  would  not,  as  sug- 
gested, hear  the  doors  at  the  various  floors 
opening  as  the  elevator  descended,  since,  as 
shown  by  the  testimony  of  the  operator,  the 
elevator  started  from  the  floor  next  above, 
so  there  would  be  no  doors  to  open ;  neither 
does  it  seem  probable  that  he  would  retire 
to  such  a  damp,  ill-smelling  place  to  slumber. 

[2]  The  defendant  was  at  fault.  For  its 
roughest  work  it  employed  many  illiterate 
laborers,  of  no  high  order  of  intelligence  or 
refinement,  of  all  nations  and  all  tongues, 
needing  for  this  work  brawn  and  muscle  and 
not  brains.  Their  habits,  customs,  and  train- 
ing should  be  taken  into  account,  and  their 
safety    provided    for.      The    shaft    opening, 


though  containing  a  serions  hidden  peril,  was 
unguarded  and  unllghted.  Located  near  the 
stoneroom,  which  was  the  only  rest  room 
of  the  plaintiff,  and  in  which  the  plaintiff 
was  properly  at  the  time,  the  well  was  a 
trap  against  the  danger  of  which  the  plain- 
tiff should  have  been  guarded.  The  plain- 
tiff's exceptions  to  the  order  of  nonsuit  are 
therefore  sustained. 

[3]  According  to  the  stipulation  agreed  to 
by  the  parties,  the  law  court  is  to  assess  the 
damages.  For  seven  months  in  the  hospital, 
itt  serious  surgical  operation  costing  $400  or 
$500,  from  which  he  received  much  benefit, 
and  for  the  impairment  of  his  ability  to  labor 
in  the  future  because  of  the  loss  practically 
of  all  the  use  of  his  legs,  we  feel  that  $4,000 
damages  are  not  exq^ssive. 

Exceptions  sustained.  Judgment  for  plain- 
tiff.   Damages  assessed  at  $4,000. 


(116  Me.  2U) 
WOODMAN  V.  BUTTERPIEIiD. 

(Supreme  Judicial  Court  of  Maine.     June  21, 
1917.) 

1.  Appeal  and  Erbob  «=»8d5(l)— Scope  or 
Review. 

Where  the  Supreme  Court  is  to  direct  such 
a  decree  as  the  record  requires,  appellee  may 
urge  matters  presented  in  the  record,  I)ut  not 
sustained  by  the  decree  below. 
.  [Ed.  Note. — For  other  cases,  see  Appeal  and 
iBrrw,  Cent.  Dig.  §§  3645,  3646.] 

2.  cobfobations   <s=>545(2)  —  insolvency  — 
Pbefebences  to  Dibectors. 

An  insolvent  corporation  cannot  prefer  a 
creditor  who  is  also  a  director. 

[Ed.  Note.— For  other  cases,  see  Corporatioas, 
Cent  Dig.  {  2170.] 

3.  COBPOBATIONS     4s»342  —  DnOiCTORS  —  LlA- 

BiLixr. 
Defendant's  election  as  a  corporation's  di- 
rector did  not  make  him  sncli  until  he  had  no- 
tice, or  was  chargeable  with  notice,  of  that  fact 
end  until  that  time  he  was  not  liable  for  pay- 
ments received  while  the  corporation  was  insol- 
vent. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  H  1486-1488.] 

4.  COBPOBATIONS    <S=>361  —  INSOLVENCY— StHT- 

FioiENCY  OP  Evidence. 
Defendant's  testimony  that  he  was  notified 
of  his  election  as  a  corporate  director  some  time 
during  February  warrants  a  finding  that  he  was 
so  notified  at  the  beginning  of  February,  but 
does  not  sustain  a  finding  of  his  notification  at 
an  earlier  date. 

[Eld.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  {  1506.1 

5.  Bankbuptoy    <g=»  184(1)  —  Pbefebences  — 
Fbaudulent  Conveyances— State  Laws. 

In  an  action  by  bankruptcy  trustee  to  avoid 
fraudulent  corporate  transfers  under  Bankrupt- 
cy Act  July  1,  1898^^  c.  541,  §  70,  cl.  e,  30  Stat 
565  (U.  S.  Comp.  St  1916,  i  9054),  authoris- 
ing him  to  avoid  transfers  which  any  creditor 
might  have  avoided,  whether  the  transfers  were 
fraiKlulent  depends,  not  upon  the  Bankruptcy 


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(Me. 


Act,  bat  upon  the  kws  of  the  Mate  where  the 
transfers  were  made. 

[Ed.  Note.— For  other  cases,  see  Bankruptcy, 
Cent  Dig.  I  275.] 

6.  Insolvknct  €=324— Definitioit. 

The  term  "insolvent,"  when  applied  to  a 
person  or  corporation  engat^ed  in  trade,  means 
inability  to  pay  debts  as  they  fall  due  in  the 
usual  course  ol  business. 

[Ed.  Note.— For  other  cases,  see  Insolvency, 
Cent  Dig.  {  29. 

For  other  definitions,  see  Words  and  Phrases, 
EHrst  and  Second  Series,  Insolvency;  Inscd- 
voit] 

7.  OoHPOBATioNa    «=>538  —  StmnoiKNOT    or 
BviDBNCK— "Insolvency." 

Evidence  that  a  corporation  assumed  the 
debts  of  its  constituent  companies,  mortgaged 
the  property  for  a  large  amount  and  issued 
bonds  under  the  mortgage,  that  defendant  direc- 
tor loaned  it  money  to  meet  its  pay  roll,  and 
that  its  bonds  were  authorized  to  be  used  as 
collateral  at  a  rate  not  to  exceed  two  for  one, 
etc.,  held  to  sustain  a  finding  that  the  corpora- 
tion was  insolvent  to  defendant's  knowledge  in 
the  sense  that  it  could  not  pay  its  debts  as 
they  became  due. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  |  2161.] 

8.  COBPOBATIONS  <S=»542(3)— INSOLVBRCT— Dl- 
BECTOa'8  LlABrLlTT. 

A  corporate  director  receiving  payments  on 
notes  executed  hjr  the  corporation  to  himself 
after  the  corporation  was  insolvent  to  his  knowl- 
edge, is  liable  to  the  corporation's  trustee  in 
bankruptcy  for  the  money  so  received. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  {  2156.] 

9.  COBPORATIONS  «=»542(3)— INSOLTXNOT— Dl- 
BBCTOB'S  IiIABIUTT. 

Evidence  that  an  insolvent  corporation's 
president  offered  to  give  defendant  director 
bonds  owned  by  the  president  individually  and 
that  the  receipt  for  such  bonds  was  given  to  the 

President  as  an  individual  held  to  sustain  a 
nding  that  defendant  received  the  bonds  from 
the  president  individually,  and  not  from  the  cor- 
poration. 

[Ed.  Note.-T-For  other  cases,  see  Corporations, 
Cent  Dig.  I  2166.] 

10.  cobpohations  «=3642@)  —  irboltenot — 
Dibectob's  Liabilitt. 

Evidence  held  to  sustain  a  finding  that  bonds 
received  by  a  corporate  director  after  the  cor- 
poraticm  became  insolvent  were  not  merely  an 
exchange  of  bonds,  but  constituted  a  payment 
on  indebtedness  due  him  by  the  corporation, 
where  such  indebtedness  would  be  substantially 
discharged  on  such  a  theory,  and  no  satisfactory 
reason  for  reducing  it  was  given. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  i  2156.] 

11.  cobporations  4=»642@)  — insoltxnct  — 
Dibectob's  Liabilitt. 

A  corporate  director  is  not  liable  to  the  cor- 
poration's trustee  in  bankruptcy  for  payments 
made  by  the  corporation  while  insolvent  on  notes 
on  which  the  director  was  an  indorser,  where 
such  payments  were  not  procured  or  urged  by 
the  director. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  {  2156.] 

Appeal  from  Supreme  Judicial  Court,  Ken- 
nebec Connty,  in  Equity. 

Bill  by  Walter  I.  Woodman,  trustee  In 
bankruptcy  of  the  National  Boat  &  Engine 
Company,   against   William    W.   Butterfleld. 


Decree  for  plaintiff,  and  defendant  a]H>ealB. 
Affirmed  as  modified. 

Argued  before  SAVAGB,  C.  J,  and  COB- 
NISH,  KINO,  BIRD,  HALEY,  HANSON, 
PHILBROOK,  and  MADIQAN,  JJ. 

Williamson,  Burleigh  &  McLean,  of  Au- 
gusta, Wm.  D.  Washburn,  of  Chicago,  111., 
and  William  Carjjenter,  of  Muskegon,  Mich., 
for  appellant.  Woodman  &  Whitehouse,  of 
Portland,  for  appellee. 

KINO,  J.  Bill  in  equity  wherein  the  plain- 
tiff, as  trustee  in  bankruptcy  of  the  National 
Boat  &  Ekigine  Company,  seeks  to  recover  of 
the  defendant  the  amount  of  certain  pay- 
ments and  the  value  of  certain  bonds  alleged 
to  have  been  obtained  by  him  for  his  benefit 
from  the  corporation  while  he  was  a  director 
thereof  and  when  it  was  insolvent.  The 
ground  for  recovery  is  alleged  to  be  that  the 
obtaining  and  acc^tance  of  said  payments 
and  bonds  by  said  defendant  or  for  bis  bene- 
fit were  In  violation  of  his  flduciaiy  duty  as 
a  director  of  said  bankrupt  corporation  and 
In  fraud  of  the  rights  of  Its  creditors  and 
stockholders.  The  case  la  before  us  upon 
an  appeal  by  the  defendant  from  the  decree 
of  the  sitting  Justice. 

No  special  finding  of  facts  or  summary 
of  the  issues  Involved  was  filed  with  the 
decree.  The  record  is  voluminous.  It  om- 
tains  many  uncontroverted  facts  and  circum- 
stances which  are  material  to  a  dear  un- 
derstanding of  the  particular  Issues  between 
the  parties  and  Important  to  be  considered  In 
the  determination  of  those  issues.  We  will 
therefore  at  the  outset  brlefiy  state  some  of 
those  unquestioned  facts  and  circumstances. 

In  1907  the  defendant  became  connected 
with  the  Racine  Boat-Manufacturing  Com- 
pany, a  corporation  doing  business  at  Mus- 
kegon, Mich.  He  was  a  large  stockholder, 
a  director,  and  the  secretary  of  that  company. 
The  other  directors  were  Walter  J.  Reynolds, 
his  wife.  Rose  B.  Reynolds,  Paul  B.  Mc- 
Cracken,  and  Frank  A.  Wilson.  Reynolds 
was  Its  president  The  capital  stock  of  the 
company  was  ultimately  $200,000,  substan- 
tially all  owned  by  the  directors.  The  de- 
fendant, together  with  Reynolds  and  Mc- 
Cracken,  indorsed  notes  of  the  company  to 
a  large  amount  January  8,  1900,  that  cor- 
poration made  and  delivered  to  Butterfleld 
a  trust  deed  or  mortgage  of  its  property  to 
secure  him  for  his  then  existing  indorsements 
as  he  should  make  for  it,  and  for  any  notes 
given  to  him  by  the  company.  That  trust 
deed  was  never  recorded,  and  it  was  with- 
held from  record  for  the  reason  that,  U 
recorded,  It  would  Impair  the  credit  of 
the  company ;  but  there  was  an  understand- 
ing between  the  other  directors  and  Butter- 
fleld that  the  trust  deed  was  to  be  recorded 
whenever  Butterfleld  should  determine  that 
the  company  "was  on  Its  last  legs." 

In  September,  1910,  the  National  Boat  & 


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WOODMAN  T.  BXTTTEBFnSLD 


27 


Bnglne  Gompany  was  organized  under  the 
laws  of  Maine  for  the  pvirpose  of  taking 
over  the  property  and  business  of  the  Radne 
Company  and  of  various  other  companies  and 
concerns  carrying  on  a  similar  business. 
The  plan  of  consolidation  was  for  the  new 
corporation  to  take  over  all  the  assets  of 
the  constituent  companies  and  concerns  at 
an  appraisal  to  be  made,  and  to  assume  all 
the  liabilities  of  each.  The  difference  be- 
tween the  assets  and  liabilities  of  each  oon- 
stitnent  was  to  be  paid  to  it,  or  to  Its  stock- 
holders, in  the  bonds,  the  preferred  stock, 
and  the  common  stock  of  the  new  company 
In  such  proportions  as  the  plan  of  consoUda- 
tion  provided  for. 

3.  Q.  Ross,  attorney  for  the  Racine  Gom- 
t>any,  Reynolds,  its  presid«it,  and  H.  S. 
Beardsley,  of  New  Tork,  appear  to  have  been 
active  promoters  of  the  consolidation,  and 
Butterfleld  was  fully  tnformed  as  to  the  plans 
and  purposes  of  the  consolidation  from  the 
beginning  of  the  negotiations,  be  says  that 
It  was  agreed  at  the  outset  between  Ross, 
Beardsley,  Reynolds,  and  himself  that  no 
mention  should  be  made  in  carrying  out  the 
consolidation  of  the  unrecorded  trust  deed 
which  he  held  of  the  Racine  Company's 
property,  and  that  it  was  farther  understood 
between  them  that  after  the  new  corporation 
had  issued  Its  bonds  the  trust  deed  was  to 
be  exchanged  for  enough  of  those  bonds,  to 
be  held  In  escrow,  to  cover  all  his  contingent 
liability  on  notes  of  the  Racine  Company 
and  all  of  Its  direct  liability  to  him.  The 
consolidation  was  carried  out  as  planned. 
Reynolds  became  president,  Beardsley  treas- 
urer, and  Ross  secretary  of  the  new  cor- 
poration, and  each  was  a  member  of  its  board 
of  directors.  All  the  assets  of  the  Racine 
Company  were  transferred  to  the  new  or 
National  Company  by  conveyances  warrant- 
ing the  title  thereto,  and  without  mention 
of  the  unrecorded  trust  deed  held  by  Butter- 
fleld. At  the  time  of  the  transfer  Butterfleld 
was  liable  as  indorser  or  guarantor  of  the 
Racine  Company's  paper  to  the  amount  of 
about  $100,000,  according  to  his  testimony, 
and  that  company  was  also  Indebted  to  him 
for  about  $24,500  on  notes  given  by  It  to 
him. 

The  National  CcHnpany  authorized  an  Issue 
of  not  exceeding  $3,000,000  of  first  mortgage 
bonds,  to  bear  date  October  1,  1910,  and  to 
be  secured  by  a  trust  mortgage  to  the  Astor 
Trust  Company,  of  New  Tork  City,  as  trus- 
tee, covering  all  its  property  real  and  per- 
sonal, present  and  future.  The  mortgage  was 
executed,  and  on  January  18,  1911,  was  ac- 
cepted by  the  trustee.  Some  of  the  bonds 
were  sold,  and  others  were  used  as  collateral. 

The  National  Company  used  the  same  office 
as  the  Racine  Company,  in  Muskegon,  Mich., 
until  December,  1910,  or  January,  1911,  when 
It  changed  its  general  office  from  Muskegon 
to  Chicago.  At  a  special  meeting  of  the 
board  of  directors  of  the  National  Compcmy  I 


held  at  the  Congress  Hotel  In  Chicago  on  the 
21st  day  of  December,  1910,  Butterfleld  was 
elected  a  director  of  tlw  corporation.  He  at 
tended  the  next  meeting  of  the  board  of  di- 
rectors held  at  Chicago  on  March  13,  1911. 
At  that  meeting  the  business  afFalrs  and  the 
financial  status  of  the  corporation  were  pre- 
sented and  discussed,  and  a  resolve  was  passed 
that,  when  necessary  to  borrow  money  in 
order  to  obtain  funds  to  meet  bills  or  accounts 
payable,  or  to  extend  the  time  of  payment  on 
notes  payable,  the  officers  of  the  company 
might  use  the  bonds  of  the  company  as  col- 
lateral at  a  rate  not  to  exceed  two  for  one. 

At  the  time  of  the  consolidation  Butterfleld 
held  two  notes  of  the  Racine  Company,  one 
for  $14,500,  dated  August  4,  1910,  maturing 
February  4,  1911,  with  interest  paid  to  its 
maturity,  and  the  other  for  $10,000,  dated 
September  6,  1910,  maturing  December  6, 
1910,  with  interest  paid  to  its  maturity.  Va- 
rious payments  were  made  to  him  and  for 
his  benefit  on  account  of  those  notes  prior 
to  April  6, 1911.  On  that  day  Butterfldd  re- 
ceived $6,760,  at  par  value  of  the  bonds  of  the 
National  Company.  He  admits  that  he  re- 
ceived those  bonds  in  full  settlement  of  the 
balance  then  due  on  his  two  notes  against  the 
company,  as  then  adjusted  between  him  and 
Reynolds,  its  president  And  on  or  about 
the  same  date  he  received  $3,650  at  par  value 
of  the  bonds  of  the  National  Company. 

It  has  already  been  mentioned  that  there 
was  an  understanding  between  Butterfl^d, 
Reynolds,  Ross,  and  Beardsley  that,  after 
the  consolidation  was  completed,  a  sufficient 
amount  of  the  bonds  of  the  new  company 
should  be  exchanged  for  that  unrecorded 
mortgage  which  Butterfleld  held  covering  the 
Racine  Company's  property.  In  furtherance 
of  that  understanding,  and  in  May,  1911, 
bonds  of  the  National  Company  to  the 
amount  of  $88,000,  were  placed  in  the  hands 
of  Cross,  Vanderwerp,  Foote  &  Ross,  as  trus- 
tees, to  secure  Butterfleld  on  his  indorse- 
ments of  the  notes  of  the  Racine  Company, 
then  amounting  to  about  $44,000,  and  whi<di 
indebtedness  the  National  Company  had  as- 
sumed. 

At  a  meeting  of  the  board  of  directors  of 
the  National  Company  held  August  25,  1911, 
a  resolve  was  passed  directing  the  president 
to  admit  in  writing,  for  the  company  and 
in  its  name,  its  inability  to  pay  its  debts  and 
Its  willingnesa  to  be  adjudged  a  bankrupt  on 
that  ground;  and  the  petition  in  bankruptx^y 
was  filed  against  it  August  28,  1911. 

It  appears  that  Butterfleld,  having  paid 
the  notes  of  the  Racine  Company  on  which 
he  was  Uable  as  Indorser  or  guarantor, 
sought  to  have  the  $88,000  of  bonds  held  by 
Cross,  Vanderwerp,  Poote  &  Ross  proved  as 
a  claim  against  the  bankrupt  estate.  The 
claim  was  disallowed  on  the  ground  that  the 
trust  deed  for  which  the  bonds  were  ex- 
changed, not  having  been  disclosed  in  the 
consolidation  proceedings,  was  Invalid  as 
against  the  bankrupt  corporation,  and  Its 


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101  ATIiAJ«TIO  REPORTBB 


(Me. 


surrender  did  not  constltnte  a  valid  consid- 
eration for  the  delivery  of  the  bonds  in  ex- 
change for  It,  and  that  such  delivery  was 
voidable  for  the  farther  reason  that  It  coa- 
stituted  a  fraudulent  preference  of  a  director 
at  a  time  when  the  bankrupt  was  Insolvent, 
and  known  to  be  so  by  the  claimant.  Butter- 
field  ▼.  Woodman  (D.  C.)  216  Fed.  208,  affirm- 
ed as  to  that  part  of  the  decision  In  Butter- 
fleld  y.  Woodman,  223  Fed.  956,  139  a  C.  A. 
436. 

The  plaintiff's  claims  presented  by  the  rec- 
ord may  be  thus  briefly  stated: 

First.  That  Butterfleld  became  a  director 
of  the  National  Boat  &  Engine  Company  on 
December  21,  1910,  when  he  was  elected  to 
that  office;  that  the  company  was  then,  and 
thereafter  continued  to  be,  insolvent,  and 
that  he,  as  a  director  of  the  company,  should 
have  known  that  fact,  and  did  know  It ;  that 
between  December  21,  1910,  and  April  6, 
1911,  varlons  payments  were  made  by  the 
company  to  him  directly,  or  for  his  benefit. 
In  reduction  of  the  two  notes  which  he  held 
against  the  company ;  and  that  the  plaintiff 
is  entitled  to  recover  of  blm  tn  this  action 
those  payments,  with  Interest  thereon,  upon 
the  ground  that  they  were  fraudulent  tran» 
fers  of  the  company's  property  to  him. 

Second.  That  the  $6,700  of  bonds  reoMred 
by  Butterfleld  on  April  6,  1911,  hi  settlement 
of  the  balance  due  him  on  his  two  notes  of 
the  company  were  the  property  of  the  com- 
pany, and  that  the  value  of  those  bonds  at 
the  time  they  were  converted  by  him,  with 
interest  thereon,  is  recoverable  of  him  In 
this  action  upon  the  same  ground  of  an  un- 
lawful and  fraudulent  transfer  of  the  com- 
pany's property  to  him. 

Third.  That  the  $3,660  of  bonds  received 
by  Butterfleld  on  or  about  April  6,  1911,  be- 
longed to  the  company,  and  that  their  value 
at  the  time  he  converted  them,  with  interest, 
is  recoverable  of  him  In  this  action  for  the 
same  reason. 

Fourth.  That  divers  sums  of  money  were 
paid  by  the  National  Company  after  Decem- 
ber 21,  1910,  In  reduction  of  the  amounts  of 
various  notes  which  that  company  had  as- 
sumed and  upon  which  Butterfleld  was  lia- 
ble as  Indorser  or  guarantor,  and  that  the 
amount  of  those  payments  with  Interest  Is 
recoverable  In  this  action  upon  the  same 
ground  that  they  constituted  fraudulent 
transfers  of  the  company's  property  for  the 
benefit  of  Bntt^-fleld  while  a  director  of  the 
company,  and  when  It  was  Insolvent. 

After  bearing  the  sitting  Justice  decreed: 

(1)  The  bill  Is  sustained  as  to  the  bonds  of 
the  National  Boat  &  Engine  Company  de- 
livered to  the  defendant  of  the  par  value  of 
$3,650. 

(2)  The  bill  ia  sustained  as  to  $3,600  re- 
ceived by  the  defendant  from  the  National 
Boat  &  Engine  Company  between  December, 
1910,  and  February,  1911,  as  payments  to 
blm  on  his  liability  on  certain  promis80i7 
notes  of  said  company. 


(3)  The  bill  is  not  sostalned  as  to  the 
bonds  of  the  National  Boat  &  Engine  Com- 
pany, delivered  to  the  defendant  by  Reynolds, 
of  the  par  value  of  $6,750,  these  bonds  be- 
coming the  property  of  Butterfleld  on  deliv> 
ery. 

(4)  If  the  bonds  specified  In  Item  1  cannot 
be  delivered  in  specie  to  the  trustee  in  bank- 
ruptcy, a  master  may  be  api>ointed  to  ascer- 
tain their  market  value  at  the  time  they 
were  demanded,  for  which  sum  only  Butter- 
fleld Is  hereby  made  liable  to  the  trustee. 

[1]  The  plaintiff  now  claims,  In  accordance 
with  the  principles  affirmed  In  Trask  v. 
Chase,  107  Ma  137,  77  Atl.  698,  and  In  Pride 
V.  Pride  Lumber  Co.,  109  Me.  452,  457,  84 
AtL  989,  that.  Inasmuch  as  all  questions  pre- 
sented by  the  record  are  open  for  considera- 
tion under  the  appeal,  and  such  decree  Is 
to  be  directed  by  this  court  as  the  whole  rec- 
ord requires,  he  Is  free  to  urge  before  this 
court  his  contention  in  regard  to  those  claims 
on  bis  part,  which  the  record  pres^its,  but 
whidi  the  decree  below  did  not  sustain.  We 
think  he  has  that  right 

[2]  lu  support  of  each  and  all  of  his  claims 
contended  for  In  this  action  the  plaintiff  in- 
vokes the  rule,  which  rests  in  the  soundest 
wisdom  and  is  supported  by  the  great  weight 
of  authorities,  that  an  insolvent  corporation 
is  not  permitted  to  prefer  a  creditor  who  is 
also  a  director  of  the  corporation.  The  rule 
is  sustainable  upon  the  principle  that  it  Is 
inequitable  for  a  director,  whose  position 
gives  him  an  advantage  In  obtaining  Inside 
information  of  the  affairs  of  the  corporation, 
to  protect  bis  own  claims  against  it  to  the 
detriment  of  its  other  creditors.  That  rule 
Is  the  settled  doctrine  of  this  state  where 
this  action  is  pending,  and  where  the  bank- 
rupt coriwratlon  was  created  (Symonds  v. 
Lewis,  94  Me.  501,  48  Atl.  121,  and  Pride  v. 
Pride  Lumber  Co.,  supra),  and  It  is  also 
adopted  and  enforced  by  the  highest  court  of 
Illinois,  the  state  where  the  alleged  transfers 
were  made  (Beach  v.  MlUer,  130  IlL  162,  22 
N.  E.  464,  17  Am.  St  Rep.  291).  That  rule 
therefore  must  be  applied  In  this  case  In 
deciding  whether  or  not  the  alleged  payments 
by  the  corporation  to  the  defendant  consti- 
tuted fraudulent  transfer  of  its  property  to 
him  as  one  of  its  creditors, 

We  will  consider  the  plaintiff's  claims  in 
the  order  in  which  we  have  hereinbefore 
stated  them. 

1.  The  alleged  payments  made  on  account 
of  the  two  notes  which  the  defendant  held 
against  the  corporation,  exclusive  of  the 
bonds  whicli  he  received  In  the  final  settle- 
ment of  those  notes. 

[3]  When  did  the  defendant  become  a  di- 
rector of  the  National  Boat  &  Engine  Com- 
pany? He  was  elected  as  such  at  a  meeting 
of  the  directors  held  December  21,  1910.  He 
admits  that  he  had  previously  expressed  to 
Reynolds  his  wish  to  become  a  director  of 
that  company,  because  of  his  Interest  In  its 
affalrsi  but  be  claims  that  he  had  no  knowl- 


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edge  tbat  he  had  been  elected  a  director  until 
some  time  In  February,  when  Reynolds  noti- 
fied him  of  his  election.    He  said: 

"It  vas  the  first  part  or  the  middle  of  Febru- 
ary. I  couldn't  remember.  •  •  *  Q.  Tou 
think  it  was  the  first  part  of  February?  A. 
Possibly.  •  •  •  Q.  So  that  from  the  early 
part  of  February  on  you  admit  that  yoa  did 
know  it?  A.  Some  time  in  February  I  knew 
that  I  had  been  elected." 

The  mere  fact  of  the  election  of  a  person 
as  a  director  of  a  corporation  does  not  con- 
stitute Mm  a  director  unless  he  has  notice,  or 
is  chargeable  with  notice,  of  that  fact  In 
addition  to  the  election  there  must  be  an  ac- 
ceptance of  the  oflSce,  express  or  Implied. 
Cook  on  Ciorporatlons  (7th  Ed.)  {  824. 

[4]  The  sitting  justice  sustained  the  plain- 
tiff's bill  as  to  $3,600  received  by  the  de- 
fendant from  the  National  Boat  &  Engine 
Company  "between  December,  1910,  and  Feb- 
ruary, 1911,"  as  payments  to  him  on  his 
notes  against  the  company.  That  decision 
implies  that  he  found  that  the  defendant  was 
a  director  of  the  corporation  from  December, 
1900,  presumably  from  the  time  of  his  elec- 
tion to  that  office  on  the  21st  of  December. 
His  decision  as  to  questions  of  fact  neces- 
sarily involved  In  the  case  is  not  to  be  re- 
versed unless  it  clearly  appears  that  such 
dedsion  was  erroneous.  We  are  unable  to 
find  any  evidence  in  the  case  tending  to  show 
that  the  defendant  had  any  knowledge  prior 
to  February,  1911,  that  he  had  been  elected 
a  director  of  the  corporation.  He  testified 
that  he  had  no  Information  of  that  fact  until 
some  time  in  February,  there  was  no  testi- 
mony to  the  contrary,  and  It  was  not  shown 
that  he  did  anything  prior  to  Februaiy  from 
which  it  could  be  inferred  that  he  considered 
that  he  was  a  director  of  the  corporation. 
We  are  therefore  constrained  to  the  conclu- 
sion tliat  the  sitting  Justice  erred  in  finding 
that  the  defendant  was  a  director  of  the  cor- 
poration prior  to  February,  1911,  and  there- 
fore chargeable  with  those  obligations  and 
duties  which  arise  out  of  the  fiduciary  rela- 
tions which  the  law  regards  as  existing  be- 
tween a  director  of  a  corporation  and  its 
stockholders  and  creditors.  He  admits  that 
he  was  informed  of  his  election  as  director 
8«ne  time  In  February,  1911,  and  that  it 
may  have  been  In  the  first  part  of  that 
month.  We  think  it  may  be  reasonably  held 
that  he  knew  as  early  as  the  beginning  of 
February,  1911,  that  he  had  been  elected  a 
director,  and  that  fnMn  and  after  that  time 
he  was  chargeable  with  the  duties  and  obli- 
gations of  a  director  of  the  corporation. 

[5, 1]  Was  the  corporation  Insolvent  during 
the  time  the  defendant  was  a  director  of  it, 
and  did  he  luiow  or  have  reason  to  know 
that  It  was  insolvent?  In.  the  decision  of 
that  question  as  involved  in  this  case  we 
are  not  controlled  by  the  definition  of  in- 
solvency contained  in  the  bankruptcy  Act 
This  bill  in  equity  is  brought  under  the  pn>- 
visions  of  clause  "e"  of  section  70  of  that 
act.    Tliat  clause  of  the  Bankruptcy  Act  cre- 


ates no  new  right  of  the  trustee  to  avoid 
transfers  of  property  made  by  the  bank- 
rupt, but  merely  gives  to  the  trustee  authori- 
ty to  avoid  any  fraudulent  transfers  of  his 
property  by  the  bankrupt  "which  any  credi- 
tor" might  have  avoided;  and  therefore  the 
question  whether  a  particular  transfer  was 
or  was  not  fraudulent  as  to  creditors  does 
not  depend  upon  the  Bankruptcy  Act,  but  up- 
on the  laws  of  the  state  where  the  alleged 
transfers  were  made.  Holbrook  v.  Interna- 
tional Trust  Co.,  220  Mass.  150,  154,  107  N. 
£1  666;  In  re  Mullen  (D.  C.)  101  Fed.  413; 
Trust  Co.  V.  Trustees  of  Wm.  F.  Fisher  & 
Co.,  67  N.  J.  Eq.  602,  60  AtL  940,  3  Ann.  Gas. 
303. 

The  alleged  fraudulent  payments  and 
transfers  by  the  bankrupt  to  the  defendant 
the  value  of  which  the  trustee  here  seeks  to 
recover,  were  made  In  the  state  of  Illinois. 
It  follows,  therefore,  that  in  deciding  wheth- 
er the  corporation  was  Insolvent  at  the  time 
the  alleged  transfers  were  made,  we  must  ac- 
cord to  the  term  "insolvent"  the  meaning 
ascribed  to  It  by  the  courts  of  Illinois.  And 
to  Atwater  v.  Bank,  162  IlL  606,  88  N.  B. 
1017, 1018,  that  court  said: 

"  'Insolvency,'  when  applied  to  a  person,  firm, 
or  corporation  engaged  in  trade,  means  inabil- 
ity to  pay  debts  as  they  become  due,  in  the  usu- 
al course  of  business." 

And  that  is  the  meaning  ascribed  to  the 
term  "Insolvent"  by  common-law  courts  and 
courts  of  equity.  Clay  v.  Towle,  78  Me.  86, 
2  Atl.  862;  Morey  v.  MiUlken,  86  Me.  464,  30 
Aai02. 

[7]  The  history  of  the  National  Boat  &  En- 
gine Company  and  a  consideration  of  its 
financial  condition,  as  disclosed  by  the  rec- 
ord, shows  that  from  its  beginning  It  was 
practically  Insolvent  in  the  sense  of  that 
term  which  makes  the  test  the  Inability  of 
the  corporation  to  meet  its  existing  obliga- 
tions in  the  usual  course  of  business  as  they 
become  due.  According  to  the  report  of  the 
appraisers,  the  new  company  assumed  at  the 
outset  of  Its  brief  existence  the  combined  lia- 
bilities of  all  the  constituent  companies  and 
concerns  amounting  to  an  indebtedness  of 
$346,724.22.  That  indebtedness  was  immedi- 
ately pressing  for  payment  and  naturally  so, 
because  the  holders  thereof  discovered  that 
the  property  of  their  principal  debtors  had 
been  transferred.  But  the  new  company  im< 
mediately  conveyed  "all  Its  property,  real 
and  personal,  present  and  future,"  to  secure 
an  issue  of  bonds  many  of  which  were  at 
once  actually  Issued.  It  seems  plain,  there- 
fore, that  the  new  corporation  tiecame  at 
once  financially  embarrassed.  Its  immedi- 
ate and  pressing  obligations  were  more 
than  a  third  of  a  million  dollars,  it  had 
no  available  assets,  and  it  must  have  been 
without  credit.  Its  condition  was  helpless 
and  hopeless.  As  early  as  December,  1910,  it 
was  in  need  of  funds  to  meet  its  pay  roll,  and 
Butterfield  then  came  to  its  aid  by  borrowing 
for  It,  on  his  own  collateral,  $1,000  for  that 


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101  ATIiANTIO  REPOBTBE 


(Me. 


purpose.  We  entertain  no  doubt  that  tlie 
sitting  Justice  was  amply  Justified  by  the  evi- 
-dence  In  finding  that  the  corporation  was  in- 
solrent  during  all  the  time  Butterfield  was  a 
-director  of  it  But  his  learned  connsel  urge 
that  he  did  not  know  or  hare  reas<m  to  know 
its  condition.  We  think  otherwise.  He  was 
perfectly  familiar  with  the  whole  plan  of  the 
consolidation.  He  knew  that  the  new  com- 
pany had  assumed  the  debts  of  the  constitu- 
ents, and  he  knew  that  all  the  assets  which 
the  new  company  took  over  were  Immediate- 
ly conveyed  to  secure  a  $3,000,000  issue  of 
bonds,  and  that  many  of  them  were  issued  at 
once.  In  December,  not  long  after  the  corpo- 
ration was  organized,  he  responded  to  Its 
call  for  aid  In  meeting  its  pay  roll.  He  se- 
cured frequent  and  material  payments  in  re- 
duction of  his  two  notes  which  the  company 
had  assumed,  and  he  requested  with  urgency, 
culminating  in  a  threat  of  legal  proceedings, 
that  his  Indirect  liability  as  indorser  on  pa- 
per which  the  company  had  assumed  should 
be  secured  by  a  deposit  of  bonds  of  the  com- 
pany as  coUateraL  He  was  present  and 
took  part  In  the  meeting  of  the  directors  of 
the  company  on  March  13, 1911,  when  the  re- 
solve was  passed  "that  when  necessary  to  bor- 
row money  in  order  to  obtain  funds  to  meet 
bills  or  accounts  payable,  or  to  extend  the 
time  of  payment  on  notes  payable,"  the  offi- 
cers were  authorized  to  use  the  bonds  of  the 
company  as  collateral  at  a  rate  not  to  exceed 
two  for  one.  And  on  April  6,  1911,  he  ac- 
cepted at  their  par  value  at  least  $0,750 
worth  of  the  company's  bonds  In  settlement 
of  the  balance  of  his  notes  for  which  the 
company  was  liable,  and  he  did  so  with  full 
knowledge  that  the  company  had  found  it 
very  difficult  to  sell  its  bonds  and  at  much 
less  than  par.  Considering  the  facts  and  cir- 
cumstances disclosed,  we  are  of  opinion  that 
the  defendant  knew  or  ought  to  have  known, 
during  all  the  time  he  was  a  director  of  the 
company,  that  It  was  insolvent. 

[S]  He  admits  that  be  received  on  account 
at  his  notes  a  payment  of  $1,200  on  February 
3,  1911,  and  another  payment  of  $1,500  on 
February  6,  1911.  For  these,  with  interest 
thereon  from  the  dates  of  payment,  we  think 
he  is  liable  In  this  action,  upon  the  ground 
that  they  constituted  unlawful  transfers  of 
the  company's  property  to  him  as  a  director 
creditor  of  the  corporation.  We  do  not  find 
from  the  evidenre  sufficient  proof  that  he  re- 
ceived any  other  payments  thereon  between 
February  1,  1911,  and  April  6,  1911,  when  a 
final  settlement  of  the  balance  due  on  the 
notes  was  made. 

[I]  2.  The  transfer  to  him  of  the  $6,750  of 
bonds  on  April  6,  1911. 

He  claims  that  these  bonds  were  the  prop- 
erty of  Mr.  Ileynolds  from  whom  he  received 
them.  We  have  had  considerable  doubt  as  to 
that.  But  the  sitting  Justice  so  found,  and 
we  think  It  has  not  been  shown  that  his  find- 
ing is  clearly  erroneous.  On  April  4,  1911, 
Reynolds  wrote  the  defendant  in  reference  to 


a  settlement  of  the  latter's  claim  against  the 
Kaclne  Company,  which  the  National  Compa- 
ny had  assumed,  and  in  that  letter  said,  "but 
for  the  sake  of  good  fellowship  I  am  willing 
to  sacrifice  my  own  securities  for  the  purpose 
of  getting  this  entire  matter  adjusted  with- 
out litigation,"  and  he  therein  offered  to  turn 
over  to  the  defendant  $5,000  of  his  bonds  and 
$1,000  of  his  preferred  stock.  Butterfield  did 
not  accept  that  offer.  He  testified  that  on 
April  6,  1911,  he  and  Reynolds  reached  an 
adjustment  of  the  balance  due  him.  In  settle- 
ment of  which  he  received  the  $6,750  of  bonds 
at  par,  supposing  that  they  were  Reynolds' 
bonds.  Reynolds  did  not  testify  in  this  case. 
There  may  be  some  significance  In  the  lan- 
guage of  the  receipts  which  the  defendant 
gave  on  April  6th  for  both  lots  of  bonds.  As 
to  the  $6,750  worth,  the  receipt  reads,  "Re- 
ceived from  W.  J.  Reynolds  the  f<Hlowing 
National  Boat  &  Engine  Company  Bonds: 
[describing  them]."  But  as  to  the  $3,650 
worth  it  reads,  "Received  of  W.  J.  Reynolds, 
President  of  the  National  Boat  and  B/iigine 
Company,  the  following  securities:  [describ- 
ing those  bonds]."  We  therefore  think  the 
decree  as  to  the  bonds  of  the  par  value  of 
$6,750  should  not  be  reversed. 

[10]  3.  The  transfer  of  the  $3,650  of  bonds 
<H>  or  about  April  6,  1911,  as  represoited  by 
the  defendant's  receipt  of  that  date. 

When  first  Inquired  of  In  respect  to  recriv- 
ing  those  bonds,  the  defendant  said  he  had  no 
distinct  memory  about  it,  but  was  Inclined 
to  think  that  after  the  settlement  Reynolds 
borrowed  that  amoimt  of  bonds  of  him,  and 
that  the  receipt  represented  the  return  of 
them,  saying,  "Whatever  it  was.  It  was  on  an 
exchange  basis,  and  didn't  multiply  or  In- 
crease the  $6,750  bonds."  The  plaintiff  filed 
a  petition  to  reopen  the  hearing  to  Introduce 
evidence  that  the  defendant  had  and  retained 
both  lots  of  bonds,  and  in  his  affidavit  in  an- 
swer to  that  petition,  which  affidavit  is 
made  a  part  of  the  record,  the  defendant 
states  that  he  was  mistaken  in  bis  testimony 
as  to  the  $3,650  of  bonds,  but  that  he  is  now 
satisfied  that  the  bonds  were  delivered  to 
him  as  being  those  to  which  be  was  entitled 
on  the  purchase  by  the  National  Company 
of  the  assets  of  the  Racine  Company,  ot 
which  he  was  a  stockholder.  And  he  further 
says  In  his  affidavit  that  according  to  his 
best  recollection  the  $3,650  of  bonds  was 
"the  exact  amount"  that  he  received  as  a 
stockholder  of  the  Racine  C<«npany  under 
the  plan  of  consolidation.  We  note  in  the 
report  of  the  appraisers  as  to  the  Racine 
Company  that  they  show  the  net  worth  of 
that  company,  the  excess  of  assets  over  lia- 
bilities, to  be  $808,146.42,  and  they  state: 
"Plan  of  purchase:  Bonds,  $90,350;  pre- 
ferred stock,  $361,510;  common  stock,  $356,- 
290— total,  $808,150."  If  that  was  the  plan 
of  purchase  of  the  net  worth  of  the  Racine 
Company,  then  it  would  seem  that  $3,650 
would   not  be  "the  exact  amount"  of  the 


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defendant's  ebare  of  bonds  coming  fitnn  tbe 
consolidation,  since  It  appears  from  his  own 
testimony  tliat  be  owned  at  least  a  quarter 
of  the  capital  stock  of  the  Racine  Company. 
We  strongly  suspect,  after  a  careful  study 
of  the  evidence,  that  both  lots  of  bonds  were 
received  as  payment  of  the  real  balance 
found  due  Butterfleld  In  the  adjustment 
between  him  and  Reynolds  on  April  6^  1911. 
According  to  a  statement  put  Into  the  case, 
which  both  parties  seem  to  concede  Is  sub- 
stantially correct  so  far  as  It  shows  payments 
to  Butterfleld  on  his  notes,  there  was  due 
Butterfleld,  after  the  February  payments  of 
$2,500  were  credited,  $11,937.89.  The  de- 
fmdant  did  not  satisfactorily  explain  how 
that  was  reduced  to  $6,750.  He  said  It  was 
"a  final  settlement  of  give  and  take  of  all 
differences  to  that  date,"  but  he  could  not 
recall  any  particular  items  or  matters  that 
reduced  the  balance  of  $11,937.89  to  $6,750. 
We  find  In  the  record  evidence  of  an  entry 
on  the  books  of  the  company  under  date  of 
January  25, 1911,  tending  to  show  a  payment 
of  $1,600  on  "notes  payable  W.  W.  B."  That 
paymoit  was  not  on  the  aforesaid  statement, 
which  was  prepared  by  some  official  of  the 
company  and  sent  to  Butterfleld  prior  to 
the  February  payments;  for  he  put  those 
February  payments  on  the  bottom  of  the 
statement  In  pencil.  The  last  of  the  other 
payments  listed  on  the  statement  Is  "1-2(X-11, 
1,000."  If  that  payment  of  January  25,  1911, 
be  deducted  from  the  $11,937.89,  there  will  be 
a  balance  of  $10,437.89,  which  might  be 
changed  somewhat  by  Interest  accrued  on 
the  one  side  and  the  other  up  to  AprU  6, 
1911.  And  the  total  of  the  two  lots  of  bonds 
is  $10,400,  a  significant  fact  in  this  connec- 
tion, we  think.  In  our  opinion,  no  error  Is 
shown  In  holding  the  defendant  liable  for  the 
value  of  the  $3,650  of  bonds  at  the  time  he 
converted  them,  vrtth  Interest  thereon.  He 
received  them  from  the  company,  and  his  ex- 
planation of  the  transaction  Is  not  convinc- 
ing. 

[11]  4.  Such  payments  as  were  made  by  the 
National  Boat  &  Engine  Company,  while 
the  defendant  was  a  director  thereof,  on 
notes  the  payment  of  which  the  company 
had  assumed,  and  upon  which  the  defendant 
was  liable  as  Indorser  or  guarantor. 

There  Is  evidence  that  some  such  payments 
were  made  to  the  holders  of  the  notes,  but 
not  to  Mr.  Butterfleld,  and  It  is  not  contended 
that  the  holders  of  the  notes  had  any  knowl- 
edge that  the  National  Company  was  Insol- 
reot  when  the  payments  were  made.  It  Is 
true  that  those  payments  reduced  the  defend- 
ant's contingent  liability  for  debts  which 
the  company  had  assumed.  But  the  evidence 
does  not  show  that  he  procured  the  payments 
to  be  made.  Neither  does  It  satisfactorily 
appear  that  he  knew  when  the  payments  were 
made,  or  even  that  they  were  to  be  made. 

We  think  it  would  be  going  too  ftir  to 


hold  that  a  director  of  a  bankrupt  corpora- 
tion Is  liable  to  pay  to  Its  receiver,  or  to  Its 
trustee  in  bankruptcy,  an  amount  equal  to  the 
payments  which  the  corporation  may  have 
made  in  Its  usual  course  of  business,  al- 
though while  it  was  In  fact  Insolvent,  to 
its  outside  creditors  direct  who  had  no  knowl- 
edge of  its  Insolvency,  but  upon  Indebtedness 
for  which  the  director  is  secondarily  liable 
as  Indorser  or  guarantor,  when  it  does  not 
appear  that  such  payments  were  brought 
about  by  the  procurement  of  the  director,  or 
that  he  knew  they  were  to  be  made,  or  when 
they  were  made,  and  even  though  It  appears 
that  the  director  ought  to  have  known  that 
the  corporation  was  Insolvent  during  the 
period  when  fiuch  payments  were  made. 
See  Butterfleld  v.  Woodman,  223  Fed.  956, 
961,  139  O.  C.  A.  436.  And  we  are  therefore 
of  opinion  in  this  case  that  the  plaintiff  Is 
not  entitled  to  recover  the  amounts  of  al- 
leged payments  made  by  the  corporation  to 
the  holders  of  notes  for  which  the  corpora- 
tion was  liable  and  upon  which  the  defend- 
ant was  Indorser  or  guarantor. 

Let  the  decree  below  be  modified  In  ac- 
cordance with  thlB  opinion. 

So  ordered. 

tre  N.  H.  8SS> 
STEARNS  V.  O'DOWD. 
(Supreme  Court  of  New  Hampshire.     Hillsbor- 
ough.   March  30,  1917.) 

1.  Ofpicebs  €=s>83— Actions  to  Thy  Titlb— 
Natubx  and  Form  or  Rgicedt. 

A  proceeding  in  equity  does  not  lie  to  deter- 
mine the  title  to  an  office,  since  there  is  an  ade- 
quate remedy  at  law  by  quo  warranto. 

[Ed.  Note.— For  other  cases,  see  Officers,  Cent. 
Dig.  i§  115-123.] 

2.  Quo  Wabranto  <S=»29— TnxE  to  Omicb—  ■ 
Time  fob  Bbinoino  Action. 

Quo  warranto  cannot  be  brought  to  deter- 
mine title  to  an  office  until  there  has  been  a 
usiirpation  of  the  office,  which  cannot  take  place 
before  the  commencement  of  the  term  of  office. 
[Ed.  Note. — For  other  cases,  see  Quo  War- 
ranto, Cent  Dig.  !S  31-33.] 

3.  Elections  «=»285(1)— Contests— Fobm  or 
Remedy— Statute. 

Under  Laws  1893,  c.  66,  a  contest  over  a 
county  office  ma^  be  determined  upon  the  peti- 
tion or  application  of  any  candidate  interested 
before  the  beginning  of  the  term  of  such  office, 
and  a  pleading  filed  thereunder  is  a  petition  or 
application,  although  labeled  a  bill  in  equity. 

[Ed.  Noto.— For  other  cases,  see  Elections, 
Cent  Dig.  Sg  266-268,  276,  276.] 

4.  Elections    ®=>180(1)  —  Ballots  —  SptJi 
Ballots. 

Split  or  double-marked  ballots,  being  votes 
for  both  candidates,  cannot  be  counted  for  ei- 
ther. 

[Ed.  Note.— For  other  cases,  see  Elections, 
Cent  Dig.  I  151.] 

6.  Constitutionai,  IJAW  «=»55— Invabiok  of 
Judicial  Power. 
The  fact  that  the  statutory  provision  giving 
greater  weight  to  the  cross  in  the  circle  on  a 
ballot  as  the  evidence  of  a  voter's  intentiou, 
which  was  repealed  after  judicial  decision  that 
split  ballots  could  not  be  counted  for  either  can- 


tSoVoT  otber  easM  bm  tun*  topic  uid  KBT-NUMBBR  in  >U  K«r-Numbared  Dlgwto  and  IndaxM 


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didate  wu  later  ra-enacted,  cannot  affect  tbe 
construction  heretofore  given  the  provision  aa  an 
unconstitntional  invasion  of  Uie  judicial  power. 
[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  S|  58-68,  71,  80,  81,  83.] 

6l  Elections  <S=3l8D(4)— Ballots— Mabkiro. 
When  a  cross  is  not  within  the  circle  on  a 
ballot,  but  near  it,  it  may,  in  the  absence  of  oth- 
er marks,  be  interpreted  as  indicatins  an  inten- 
ti(Hi  to  vote  a  straight  ticket. 

[Ed.  Mote.— For  other   cases,   see  Ejections, 
Cent  Dig.  1 154.1 

7.  Elbcitonb  »=»180(g)— Balloto  Mabkiwq. 
Where  a  ballot  contains  heavy  crosses  op- 
posite the  names  of  the  candidate  for  each  office 
on  the  ticket,  including  one  against  the  plain- 
tiffs name,  with  none  against  defendant's  name, 
and  there  is  no  cross  in  either  circle,  but  a  light 
cross  just  above  the  column  of  defendant's  party, 
it  was  a  vote  for  the  plaintiff. 

[Ed.   Note.— For   other  cases,  see   Elections, 
Cent  Dig.  g  156.] 

&  Elections  «=»800— Ballots— Definition. 
A  ballot  is  a  written  document  and  the  as- 
certainment of  its  meaning  is  a  judicial  func- 
tion and  a  question  for  the  law  court 

[E^.   Note. — For   other  cases,  .see   EHections, 
Cent  Dig.  §S  308-313.] 

9.  Elections  «=>300— Baixots— Qxjestion  of 
Fact. 

Whether  certain  papers  offered  as  ballots 
were  actually  cast  as  such  is  a  question  of  fact 
for  the  trial  court 

[Ed.   Note.— For   other   cases,   see   Elections, 
Cent  Dig.  ii  308-313.] 

10.  Elections  9=»204— Contests— Evidence 
—Admissibility. 

In  an  electicm  contest  evidence,  offered  be- 
fore a  master  that  many  of  the  ballots  marked 
"defective,"  "canceled,"  "void,"  "no  good,"  or 
"spoilt"  were  actually  cast  and  counted  by  the 
election  officers,  was  competent  and  should  have 
been  considered  by  the  master. 

[Eld.   Note.— For    other  cases,   see   Elections, 
Gent  Dig.  St  288-296.] 

11.  Appeal  and  EIrbob  9=»1010(2)— Review- 
Findings. 

The  appellate  court  cannot  weigh  the  evi- 
dence to  decide  a  question  of  fact,  but  a  finding 
of  fact  cannot  stand  if  there  was  no  evidence  to 
support  it 

[E^.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  3982.] 

12.  Elections  «=>286(1)— Ballots— Mabkinq 

—Statute. 
Under  Laws  1897,  a  78,  (  18,  providing  that 
all  ballots  not  counted,  in  whole  or  in  pan,  on 
account  of  defects,  shall  be  marked  "defective" 
on  the  back  thereof  by  the  moderator,  and  shall 
be  sealed  with  the  other  ballots  cast  and  re- 
turned to  the  city  or  town  clerks,  the  entry  "de- 
fective" made  on  a  ballot,  instead  of  authorizing 
the  inference  that  the  paper  was  not  cast  as  a 
ballot  in  the  absence  of  other  evidence  con- 
clusively establishes  its  status  as  a  ballot; 
hence  a  finding  by  a  master  that  ballots  so  mark- 
ed were  not  cast  as  ballots  was  erroneous. 

[Eid.  Note. — For  other  cases,  see  Ejections, 
Cent  Dig.  {  207.] 

13.  Elections  <S=3239— Ballots— Mabkino — 
Statute  —  Constbdction  —  "No  Good"  — 
"Void"— "Spoiled"— "Canceled." 

Under  Laws  1897,  c.  78,  f  10,  providing 
that  if  a  voter  spoils  a  ballot  he  may  succes- 
sively receive  three  others,  one  at  a  time,  not  ex- 
ceeding three  in  all,  upon  returning  each  spoil- 
ed one,  and  the  ballots  thus  returned  shall  be 
immediately  marked  "canceled"  by  the  ballot 
clerk,  and,  together  with  those  not  distributed 


to  the  voters,  shall  be  preserved,  the  words  "no 
good,"  "void,"  "spoiled,"  may  mean  "canceled," 
the  word  the  statute  required  to  be  placed  on 
the  snoiled  ballots ;  hence  ballots  so  marked  can- 
not be  counted. 

[Ed.  Note:— For  other  cases,  see  EUecticms, 
Cent  Dig.  }  218 

For  other  definitions,  see  Words  and  Phrases^ 
First  and  Second  Series,  Cancel— Cancellation ; 
Void.] 

Transferred  from  Superior  Court,  Hills- 
borough County. 

Proceeding  by  George  Ia  Steams  against 
John  T.  O'Dowd  to  determine  a  title  to  oflSce 
of  sheriff  of  Hillsborough  county,  to  which 
defecdant  was  declared  elected.  J>idgment 
for  defendant  subject  to  exception,  and  ques- 
tions ralsett  by  the  proceedings  reserved  and 
transferred.    Exceptions  sustained. 

Petition  under  section  1,  c.  66,  Laws  1898, 
to  determine  the  title  to  the  office  of  sheriff 
of  the  county  of  Hillsborough,  to  whldi  the 
defendant  was  declared  elected.  The  peti- 
tion alleged  that,  upon  a  correct  count  of 
the  ballots  cast,  the  petitioner  received  a 
plurality  of  the  votes  for  the  office  of  sheriff 
and  was  elected.  The  petition  was  referred 
to  a  master,  who  found  oo  the  ballots  cast 
that  Steams  received  10,025  votes,  and 
O'DowU  10,013,  and  that  there  was  contro- 
versy as  to  the  proper  counting  of  120  bal- 
lots, which,  numbered  and  fully  described, 
were  returned  as  a  part  of  the  report  Forty- 
nine  ballots  were  marked  with  a  cross  In  the 
circle  of  one  party  and  with  a  cross  opposite 
the  name  of  the  nominee  of  the  opposing 
party  for  sheriff,  without  erasure  of  the 
name  of  the  candidate  in  the  column  und» 
the  circle  which  was  marked.  The  master 
counted  these  according  to  the  cross  In  the 
circle— 31  for  O'Dowd  and  18  for  Steams. 
There  were  16  ballots  marked  "defective," 
arid  U  marked  "canceled,"  "void,-  "no  good," 
or  "spoilt,"  none  of  which  were  Included  In 
the  master's  count  Upon  the  return  of  the 
master's  report,  each  party  claimed  election 
and  moved  for  a  certificate.  Subject  to  excep- 
tion, the  court  found  the  defendant,  O'Dowd, 
elected,  and  ordered  a  certificate  of  election 
to  be  issued  to  him,  March  31,  1917.  All 
questions  of  law  raised  by  the  proceeding 
were  reserved  anU  transferred  by  Branch,  J. 

Jones,  Warren,  Wilson  &  Manning  and 
Harry  T.  Lord,  all  of  Manchester,  for  plain- 
tiff. Thomas  H.  Madigan,  Jr.,  of  Manches- 
ter, for  defendant 

PARSONS,  &  J.  [1, 11  In  the  record  sent 
to  this  court  the  proceeding  is  labeled  "Bill 
in  Equity."  The  defendant  objects  that  a 
bill  in  equity  cannot  be  maintained  to  de- 
termine the  title  to  an  office.  The  objection 
is  weU  taken.  A  proceeding  in  equity  does 
not  lie  because  there  is  an  adequate  remedy 
at  law  by  quo  warranto,  which,  however,  can- 
not be  brought  until  there  has  been  a  usur- 
pation of  the  office,  which  cannot  take  place 


tgsoFoT  othar  ouas  Ma  asma  topio  and  KBT-MUUBEIR  In  ftll  Kay-Niuaberad  DisaaU  uui  Indaxn 


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STEARNS  V.  O'DOWD 


83 


before  the  commencement  of  the  term  of  the 
office  In  dispute.  Attorney  General  v.  Hegin, 
63  N.  H.  378;  Osgood  v.  Jones,  60  N.  H.  643; 
Osgood  V.  Jones,  60  N.  H.  282.  CJonnty  offi- 
cers are  diosen  biennially  on  the  Taesday 
next  following  the  first  Monday  in  November. 
The  returns  are  canvassed  and  the  result 
declared  on  the  first  Tuesday  of  December, 
but  generally,  if  not  In  all  cases  up  to  the 
present  time,  the  officers-elect  do  not  enter 
upon  their  offices  until  the  first  of  the  fol- 
lowing April.  Until  1893  controversy  over  an 
election  could  not  be  litigated  until  the  term 
of  office  began,  practically  six  months  after 
the  election.  In  that  year  It  was  provided 
that  a  contest  over  a  county  office  might  be 
determined,  upon  the  petition  or  application 
of  any  candidate  interested,  as  well  before 
the  term  of  such  office  began  as  after.  Laws 
1893,  c.  66. 

[S-6]  The  present  proceeding  is  a  petition, 
or  application,  under  the  statute  by  one  of 
the  candidates  for  the  office,  and  in  no  sense 
a  "Bill  In  Equity."  The  decision  In  Murchle 
V.  Clifford,  76  N.  H.  99,  79  AU.  901,  which 
was  followed  in  Dinsmore  v.  Mayor,  76  N.  H. 
187,  81  AtL  683,  settles  the  proper  construc- 
tion of  the  split  or  double-marked  ballots; 
being  votes  for  both  candidates,  they  can  be 
counted  for  neither.  The  fact  that  the  stat- 
utory provision  giving  greater  weight  to  the 
cross  in  the  circle  as  evidence  of  the  voter's 
intention,  repealed  shortly  after  the  decision 
in  Murchle  v.  OUfforti  (Laws  1911,  c.  188), 
was  later  re^nacted  (Laws  1915,  c.  119),  can- 
not affect  the  construction  heretofore  given 
the  provision  as  an  unconstitutional  Invasion 
of  judicial  power.  If  it  be  conceded  that  the 
Judicial  view  of  the  legislation  vras  in  mind 
when  the  provision  was  re-enacted.  It  would 
follow  that  It  was  then  understood  the  pro- 
vision would  be  disregard^  in  a  Judicial 
interpretation  of  the  ballot.  The  double- 
marked  ballots  cannot  be  counted.  One  of 
these,  however.  No.  27,  though  counted  for 
O'Dowd  on  the  ground  of  a  cross  in  the  Dem- 
ocratic circle,  was  not  so  marked. 

[I]  There  are  heavy  crosses  opposite  the 
names  of  a  candidate  for  each  office  on  the 
ticket,  including  one  against  Stearns'  name, 
with  none  opposite  O'Dowd's.  There  is  no 
cross  In  either  circle,  but  a  light  cross  Just 
above  the  Democratic  column.  When  a  cross 
is  not  within  the  circle,  but  near  it,  it  may, 
in  the  absence  of  other  marks,  be  interpreted 
as  an  attempt  to  vote  a  straight  ticket  In 
this  case  the  voter,  by  maxklng  every  candi- 
date and  divfdlng  his  marking  between  the 
parties,  furnished  competent  evidence  of  his 
intention  not  to  vote  a  straight  ticket  A 
cross  in  the  circle  would  have  Indicated  an 
intention  to  vote  the  whole  ticket  of  the  par- 
ty to  which  the  circle  belonged,  and  it  would 
then  be  impossible  to  detennine  bis  actual 
intent  On  this  ballot  the  voter  clearly  ex- 
pressed an  Intent  to  vote  a  mixed  ticket— to 
vote  for  Steams,  and  not  to  vote  for  O'Dowd. 
lOlA.^-8 


The  most  that  can  be  satd  of  the  stray  cross 
at  the  top  is  that  it  is  evidence  of  an  im- 
perfectly executed  Intent  to  vote  a  straight 
ticket  The  direction  of  the  statute  printed 
ui>on  the  ballot  requires  for  a  straight  vote 
a  cross  in  the  circle.  The  voter  made  no 
cross  there,  and,  in  view  of  the  direct  evi- 
dence of  his  purpose  elsewhere  expressed  on 
the  ballot,  it  cannot  be  found  that  he  Intend- 
ed a  cross  not  in  the  circle  as  indicating  bis 
preference.  If  this  cross  were  the  only  one 
on  the  ballot,  the  Interpretation  would  be  aid- 
ed by  the  presumption  that  the  voter  intend- 
c!d  the  paper  prepared  by  him  as  a  ballot,  and 
to  prevent  loss  of  his  vote  his  main  purpose 
would  be  carried  out  by  giving  to  the  mark 
nuide  by  him  the  only  interpretation  possible. 

[7]  But  the  vote  he  attempted  to  give  by 
properly  executed  crosses  cannot  be  destroy- 
ed by  an  unexecuted  Intention  to  vote  a 
straight  ticket  The  statute,  after  providing 
that  a  cross  in  the  circle  is  a  vote  for  a 
straight  ticket  continues,  "Provided,  how- 
ever, that  a  voter  may  omit  to  mark  in  any 
circle  and  may  vote  for  one  or  more  candi- 
dates by  marking  a  cross  (X)  opposite  the 
names  •  •  •  of  the  candidates  of  his 
choice."  The  voter  in  this  case  followed  the 
statute;  he  did  not  mark  In  any  circle,  but 
made  a  croes  opposite  Steams'  name  and 
none  against  O'Dowd's.  The  ballot  is  a  vote 
for  Steams.  Eleven  baUota  were  claimed 
as  votes  for  O'Dowd  which  contained  no 
cross  opposite  O'Dowd's  name  and  none  ta 
any  clrela  There  are  on  them  one  or  more 
crosses  in  the  space  opposite  the  Democratic 
electors,  and  not  in  the  square  provided  for 
voting  for  the  electors  by  a  single  cross.  It 
cannot  be  said  that  marks  so  situated  Indi- 
cate an  attempt  to  mark  a  cross  within  the 
circle,  the  only  method  by  which  an  intent 
to  vote  a  straight  ticket  can  be  expressed  by 
a  single  cross. 

[3,1]  "The  ballot  is  a  written  document, 
and  the  ascertainment  of  its  meaning  is  a  Ju- 
dicial function."  Murchle  v.  Clifford,  76  N.  H. 
99,  104,  79  Atl.  901,  903.  And  Is  a  question 
for  the  law  court  State  v.  Ballroad,  70  N. 
H.  421,  434,  48  Atl.  1103.  Whether  certain 
papers  offered  as  ballots  were  actually  cast 
as  such  is  a  question  of  fact  for  the  trial 
court  Murchle  v.  CUfford,  76  N.  H.  99,  101, 
102,  79  Atl.  901. 

[10, 11]  Twenty-seven  papers,  apparently 
ballots,  returned  with  the  others,  were  reject- 
ed by  the  master  upon  the  ground  that  they 
were  not  cast  as  ballots.  Sixteen  of  these 
were  markeld  "defective,"  and  eleven  either 
"canceled,"  "void,"  "no  good,"  or  "spoUt" 
The  plaintiff  offered  evidence  as  to  many  of 
these  that  they  were  ballots  actually  cast 
and  counted  by  the  election  officers.  The 
master  heard  and  r^orted  the  evidence,  but 
refused  to  consider  it  The  evidence  was 
competent  and  should  have  been  considered. 
The  question  of  fact  so  presented  cannot  be 
here  decided.    This  court  cannot  weigh  the 


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(N.H. 


evidence.  The  finding  of  fiLct,  however,  can- 
not stand  U  tbere  was  no  evidence  to  sustain 
it  The  only  evidence  relied  upon  to  over- 
turn the  presumption  from  the  presence  of 
the  papers  among  the  returned  ballots  la 
the  entries  above  recited,  found  on  the  pa- 
pers apparently  made  by  the  election  officers. 
The  statute  provides,  in  the  directions  for 
counting  ballots  by  the  election  officers :  "All 
ballots  not  counted,  In  whole  or  in  part,  on 
account  of  defects,  shall  be  marked  'defec- 
tive' on  the  back  thereof  by  the  moderator, 
and  shall  be  sealed  with  the  other  ballots 
cast  and  returned  to  tlie  city  or  town  clerks." 
Laws  1887,  c.  78,  {  18.  Tbere  Is  no  require- 
ment that  the  particulars  in  which  the  bal- 
lot is  considered  defective  should  be  noted 
on  the  ballot. 

[12]  The  entry  "defective^'  ma'de  on  a  bal- 
lot under  this  provision,  instead  of  authoriz- 
ing the  inference  that  the  paper  was  not 
cast  as  a  ballot,  in  the  absence  of  other  evi- 
dence oondoslvely  establishes  its  status  as  a 
ballot.  The  finding  as  to  these  ballots,  being 
without  evidence  to  sustain  it,  is  set  asidft 

A  person  wishing  to  vote  Is  given  one  bal- 
lot only,  wblcb  he  takes  with  blm  into  the 
voting  booth.  "If  any  voter  spoils  a  ballot, 
he  may  successively  receive  three  otbers, 
one  at  a  time,  not  exceeding  tbree  In  all, 
uiKm  returning  each  spoiled  one.  The  bal- 
lots thus  returned  shall  be  Immediately  mark- 
ed 'canceled'  by  the  ballot  clerk,  and,  togeth- 
er with  those  not  distributed  to  the  voters, 
shall  be  preserved."    Laws  1897,  a  78,  i  16. 

[13]  If  the  statute  la  foUowed,  ballots 
marked  "defective"  are  ballots  that  have 
been  cast  and  are  returned  with  the  others 
cast  Ballots  marked  "canceled"  are  ballots 
not  cast,  and  are  to  be  preserved  with  others 
not  cast.  The  words  "no  good,"  "void," 
"qpolled,"  may  mean  "canceled,"  the  word 
the  statute  requires  to  be  placed  on  the  spoil- 
ed ballots.  There  was  therefore  evidence  to 
sustain  the  finding  made  as  to  the  eleven. 
Kvidence  was  offered  tending  to  show  that 
two  of  these,  Nos.  30  and  81,  were  cast  as 
ballots,  and  the  marking  "no  good"  placed 
upon  than  by  direction  of  the  moderator 
after  they  were  taken  from  the  ballot  box. 
If,  npon  consideration  of  the  evidence,  tbe 
master's  conclusion  should  be  reversed,  one 
of  the  ballots,  and  possibly  the  other,  would 
be  counted  for  Steams.  There  was  no  evi- 
dence tending  to  establish  the  verity  of  the 
other  "canceled"  ballots.  None  of  the  eleven 
can  now  be  connted.  Of  the  ballots  marked 
"defective,"  and  not  connted,  two  are  votes 
for  O'Dowd  and  seven  for  Steams. 

Objection  is  made  by  both  parties  to  the 
conclusion  of  the  master  as  to  many  of  the 
ballots,  but  a  careful  examination  of  each 
disputed  ballot  does  not  disclose  other  error 
in  their  interpretation  by  him  which  would 
affect  the  result.  As  tbe  matter  now  stands, 
without  delaying  for  a  finding  of  fact  as  to 


the  ballots  Nos.  80  and  81,  O'Dowd  has  10,014 
votes  and  Steams  10,015. 

The  master's  count  gave  O'Dowd  10/)43. 
To  this  should  be  added  the  two  "defective^* 
ballots,  and  subtracting  from  this  total  tbe 
thirty-one  "split  ballots"  gives  the  above  re- 
salt 

Similarly  the  correct  count  for  Steams  is 
reached  by  adding  to  the  master's  count  the 
seven  "defective"  and  ballot  "No.  27,"  eight 
in  all,  and  subtracting  the  eighteen  "splits" 
counted  for  him.  As  Steams  received,  upon 
a  correct  count  of  the  ballots,  a  plurality  of 
the  votes  cast  he  was  elected,  and  is  entitl«U 
to  a  certificate  of  election. 

Exceptlcm  sustained.    All  concurred. 


BROWNE 


(78  N.  H.  387) 
PARK  CEMETERY. 


(Supreme  Court  of  New  Hampshire.    Belknap. 
May  1,  1917.) 

1.  BmNENT  Domain  «=»4a-"PuBuo  Ubb"— 

CoNSTrruTioN— Stathtis. 
Laws  1913,  c.  311,  {  1,  providing  that  all 
proceedings  of  the  Park  Cemetery  corporation 
In  the  town  of  Tilton  are  ratified  and  made  le- 
gal, and  that  the  cemetery  shall  have  all  the 
rigbta  and  powers,  and  be  subject  to  all  lia- 
bilities, which  towns  by  statute  possess  concern- 
ing cemeteries  by  P.  S.  c.  40,  {  4,  and  section 
6,  authorizing  towns  to  take  land  in  invitnm 
for  public  use,  is  not  violative  of  Const  pt  1, 
art.  12,  as  authorizing  the  taking  of  private 
property  In  Invitum  for  a  private  use,  since  the 
use  of  land  for  the  establishment  and  mainte- 
nance of  a  cemetery  for  the  burial  of  the  dead 
may  be  a  "public  use"  justifying  its  condemna- 
tion. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {  80. 

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

2.  Cemxteries   «:3l— Assbbtion   or   Pttbuc 
RioHT— Duty  to  Afford  Skbvicb. 

Having  invoked  tbe  power  of  eminent  do- 
main to  acquire  rights  in  tbe  lands  of  others, 
a  cemetery  corporation  can  be  compelled,  at 
least  to  the  extent  of  the  rights  acquired,  to 
afford  reasonable  service  to  the  public,  in  the 
public  business  it  has  undertaken,  at  reasonable 
rates. 

[Ed.  Note.— For  other  cases,  see  Cemeteries, 
Cent  Dig.  f  1.1 

Transferred  from  Superior  Court,  Belknap 
County;   Elvel,  Judge. 

Proceeding  for  the  laying  out  of  land  for 
the  Park  Cemetery  by  the  selectmen  of  the 
town  of  Tilton,  wherein  Belle  P.  Browne 
objected.  From  the  laying  out  Browne  ap- 
pealed. On  transfer  without  a  ruling.  Case 
discharged. 

The  defendant  Is  a  voluntary  corporation 
organized  July  8,  1851,  for  the  purposes  of 
providing,  holding,  and  keeping  in  repair 
suitable  grounds  and  other  conveniences  for 
the  burial  of  the  dead,  and  claims  the  right 
to  take  the  plaintiffs  land  under  the  fol- 
lowing statute  passed  March  6,  1913: 

"All  the  acts  and  procecflings  of  an  association 
called  and  known  as  Park  Cemetery  located  in 
the  town  of  Tilton   (formerly  in  Sanbomton), 


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STATE  V.  WEEKS 


36 


l>p,  and  fte  same  are  hereby  ratified  and  mnde 
Ipgal,  and  the  said  Parlt  Cemetery  as  now  organ- 
ized shall  have  all  tlie  riiihts  and  powers,  and  be 
subject  to  all  the  liabilities  which  towns  by 
statute  possess  concerning  cemeteries,  by  and  un- 
der sections  4  and  6  of  chapter  40  oi  the  Public 
Statutes,  and  shall  be  called  and  Icnown  as  Park 
Cemetery."    Laws  1913,  c.  811.  i  1. 

Stephen  S.  Jewett,  of  Laconla,  for  plalntlfC. 
Charles  O.  Bogers,  of  Tllton,  Robert  Jack- 
sou,  of  Concord,  and  Branch  &  Branch,  of 
Manchester,  for  defendant 

PARSONS,  0.  J,  [1]  By  section  6,  c.  40, 
P.  S.,  towns  are  authorized  to  take  land  In 
invitum_  for  public  use.  The  use  of  land 
for  the  establishment  and  maintenance  of  a 
cemetery  for  the  burial  of  the  dead  may  be 
a  public  use.  Rockingham  Light  dc  Power 
Co.  T.  Hobbs,  72  N.  H.  531,  533,  68  Atl.  46, 
60  U  R.  A.  581;  Crowell  t.  Londonderry, 
83  N.  H.  42 ;  Evergreen  Cemetery  Association 
V.  New  Haven,  43  Conn.  234,  21  Am.  Rep.  643. 

"The  burial  or  other  safe  disposition  of  thd 
dead  is  a  necessity  essential  to  the  preservation  or 
the  health  of  the  living.  The  private  use  of  land 
for  this  purpose  by  a  private  corporation  may 
be  of  public  conyenlence  and  necessity,  as  that 
term  is  sometimes  used,  although  not  strictly  a 
public  use  justifying  condemnation  of  land  for 
that  purpose.  •  *  •  But  where  land  is  ap- 
propriated •  •  •  by  a  town  or  other  munic- 
ipal corporation,  or  by  the  owners  of  the  land, 
being  a  rolnntary  association  or  private  corpora- 
tion, and  the  land  so  appropriated  is  open,  under 
reasonable  regulations,  to  the  use  of  the  public 
for  the  burial  of  the  dead,  it  may  become  a  pub- 
lic burial  ground  and  its  use  a  public  use,  and 
the  Legislature  may  lawfully  condemn  land  for 
that  public  use."  Starr  Burying  Ground  Ass'n 
V.  Association,  7T  Conn.  83,  58  Atl.  407. 

The  plaintiff  bases  her  objection  to  the 
constitutionality  of  the  statute  Invoked  by 
the  defendant  upon  the  elementary  principle 
that  private  property  cannot  be  taken  in 
Invltum  for  private  use.  Const,  pt.  1,  art 
12;  Concord  Railroad  v.  Greely,  17  N.  H. 
47;  L'nderwood  v.  Bailey,  50  N.  H.  480. 
If  this  were  the  purpose  of  the  statute,  the 
pbjection  would  be  fataL  But  the  power 
conferred  upon  towns  by  section  6,  c.  40,  P. 
S.,  which  the  act  of  1913  gives  the  defendant 
is  only  to  take  land  for  a  public  use. 

As  the  plaintiffs  land  can  under  the  stat- 
ute be  taken  only  for  a  public  use,  there  is  no 
constitutional  objection  to  the  statute. 
Whatever  title  the  association  may  have  to 
land  previously  acquired  by  treaty,  all  land 
It  may  acquire  under  this  statute  will  be  af- 
fected by  the  public  use. 

"If  the  right  in  the  old  ground  is  not  pulilic 
in  every  sense  of  the  term,  it  will  not  affect  the 
public  right  in  regard  to  that  part  of  the  ground 
which  is  added  to  it  by  this  enlargement  The 
part  added  will  be  public,  subject  to  such  regula- 
tions and  restrictions  as  the  by-laws  of  the  as- 
sociation may  make ;  and  that  is  enoujsh  to  an- 
swer the  material  part  of  this  claim,  viz.  its  be- 
ing subject  to  the  objection  of  talting  private 
property  for  private  use  only."  Edwards  v. 
Stonington  Cemetery  Ass'n,  20  Conn.  4G6,  479. 

[2]  Having  Invoked  the  power  of  eminent 
domain  for  the  acquisition  of  rights  in  the 
lands  of  others,  the  defendant  can  be  com- 


pelled, at  least  to  the  extent  of  the  rights  ao 
acquired,  to  afford  reasonable  service  to  the 
public  in  the  public  business  they  have  un- 
dertaken at  reasonable  rates. 

"It  is  in  fact  a  public  agent  exercising  powers 
for  the  public  advantage  which  are  subject  to 
legislative  control  and  enforcement."  McMillan 
v.  Noyes,  75  N.  H.  2o8,  203,  72  Atl.  750,  762. 

Case  discharged.    All  concurred. 


(78  N.  H.  408) 
STATE  V.  WEEKS. 

(Supreme  Court  of  New  Hampshire.    Cheshire, 
May  1,  1917.) 

1.  CouNTiKB  <e=>139  —  Cbhonai.  Tbiai.  —  Hx- 

FENSES. 

.  The  power  of  the  courts  to  grant  a  person 
charged  with  crime  assistance  in  bis  defense  at 
public  expense  is  wholly  statutory. 

[Ed.  Note. — For  other  cases,  see  Counties, 
Cent.  Dig.  §§  203-207.] 

2.  Counties  4=9l39  —  Ezpenbxs  —  Prepaba- 
TION  FOB  Tbial. 

There  is  no  statutory  authority  under  which 
the  public  may  be  charged  with  expenses  incur- 
red by  defendant  in  preparing  for  trial  or  in  em- 
gloying  experts  td  conduct  an  examination  as  to 
is  sanity  except  so  far  as  counsel  and  those  for 
travel  and  attendance  of  witnesses  are  con- 
cerned. 

[Ed.  Note.— For  other  cases,  see  Counties, 
Cent  Dig.  §{  203-207.) 

3.  Counties  <s=»139  —  Expenses  —  Pbefaba- 
TiON  FOB  Trial. 

Pub.  St  1901,  c.  256,  {  0,  providing  that  all 
legal  costs  attending  the  arrest,  examination, 
or  conveyance  of  an  offender,  except  when  di- 
rected or  approved  in  writing  by  tlie  counsel  of 
the  state  or  county  commissioners,  shall  be  paid 
by  the  complainant  is  not  applicable  to  a  claim 
for  the  fees  of  experts  incurred  in  examining  a 
defendant  as  to  sanity  in  preparation  for  trial 
for  murder. 

[Ed.  Note.— For  other  cases,  see  Counties, 
Cent.  Dig.  U  203-207.] 

Exceptions  from  Superior  Court  Cheshire 
County ;  Branch,  Judge. 

Eugene  A.  Weeks  was  indicted  for  murder. 
On  disallowance  of  a  claim  against  the  coun- 
ty, for  fees  of  experts,  defendant  excepts. 
Exceptions  overruled. 

Indictment  for  murder.  The  defense  of  in- 
sanity was  suggested,  and  bills  were  present- 
ed by  counsel  for  the  defendant  for  the  feea 
of  experts  employed  to  examine  the  defend- 
ant No  authority  had  been  given  to  employ 
them  at  the  expense  of  the  county.  At  the 
October  term,  1916,  the  superior  court  dis- 
allowed the  claim,  allowed  the  defendant's^ 
exception  to  the  order,  and  transferred  the 
question  of  authority  to  allow  the  bills 
against  the  county. 

James  P.  Tnttle,  Atty.  Gen.,  Philip  H.' 
Faulkner,  Co.  Sol.,  of  Keene,  and  James  A. 
Moynlhan,  of  Manchester,  fo°r  the  State. 
Joseph  Madden,  of  Keene,  for  defendant 

PBASLEB,  J.  It  does  not  directly  appean 
npon  what  ground  the  order  excepted  to  was 
made;  but  as  the  case  states  that  the  ques- 
tion of  authority  Is  transferred,  it  is  assunk. 


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86 


101  ATLANTIC  REPORTER 


(Vt. 


ed  that  allowance  of  the  claim  was  refused 
upon  the  ground  that  the  court  had  no  pow- 
er to  take  such  action. 

The  case  appears  to  be  one  of  new  Impres- 
sion. No  precedent  has  been  found  for  the 
course  here  orged  In  behalf  of  the  defend- 
ant The  proposition  is  that  the  public  shall 
pay  the  expenses  incurred  by  the  defendant 
outside  of  court  in  the  preparation  of  his  de- 
fense. Of  course  there  can  be  no  common- 
law  authority  for  such  an  order.  By  that 
law  the  defendant — 

"was  denied  compulsory  process  for  his  witness- 
es, and  when  they  voluntarily  appeared  in  his 
behalf,  he  was  not  permitted  to  examine  them 
on  oath,  nor  to  have  the  aid  of  counsel  in  his 
defense,  except  only  as  regarded  the  questions  of 
Uw."  United  States  v.  Beid,  12  How.  361,  864, 
13  L.  Ed.  1023. 

[1]  It  required  legislative  action  to  give 
the  defendant  the  rights  he  would  have  in 
a  civil  cause.  4  Blk.  Com.  360.  It  is  mani- 
fest that  a  right  so  acquired  cannot  he  ex- 
tended so  as  to  Include  a  privilege  or  right 
never  known  to  the  common  law,  and  in  no 
way  created  by  any  statute.  The  right  to 
the  state's  process  to  compel  the  attendance 
of  the  defendant's  viritnesses  in  certain  cases 
(laws  1907,  c.  136,  }  1)  ortglnated  in  this 
state  with  the  act  of  1829.  Laws  (Ed.  1830) 
p.  149.  The  changes  which  have,  from  time 
to  time,  been  made  in  the  statute  show  a 
continuing  legislative  understanding  that  the 
power  of  the  court  to  grant  a  person  charg- 
ed with  crime  assistance  In  hia  defense  at  the 
public  expense  is  wholly  statutory.  R.  S. 
C.  225,  i  3;  Laws  1859,  c.  2221,  H  1.  6:  Laws 
1862,  a  2608,  {»  1,  3;  G.  S.  c.  243,  $S  1,  4; 
Laws  1873,  c.  47;  G.  L.  c  261,  {|  1,  4.  See, 
also.  State  ▼.  Arlin,  39  N.  H.  179,  and  State 
y.  Archer,  64  N.  H.  465,  where  It  seems  to 
be  assumed  that  authority  to  act  must  be 
found  in  the  statute. 

[2]  The  statute  governing  the  rights  of 
I>erson8  charged  with  the  more  serious 
crimes  (P.  S.  c.  254)  was  revised  in  1901 
(Laws  1901,  c.  104),  and  again  amended  in 
1907.  Laws  1907,  c  136.  By  the  latest 
amendment  the  requisites  for  obtaining  state 
process  to  comi)el  the  attendance  of  witnesses 
for  the  defendant  are  given  in  detalL  It 
must  appear  that  the  defendant  is  poor  and 
nnable  to  defray  the  expense,  and  that  in- 
justice may  be  done  if  provision  therefor  la 
not  made  at  the  public  expense.  The  sub- 
ject has  evidently  received  careful  legislative 
consideration,  and  there  is  nothing  In  any  of 
the  statutes  which  have  been  enacted  which 
gives  color  to  the  idea  that  authority  has 
been  conferred  to  charge  the  public  with  the 
expenses  incurred  by  the  defendant  in  pre- 
paring for  trial,  except  so  far  as  counsel  fees 
and  those  for  travel  and  attendance  of  wit- 
nesses are  concerned. 

[3]  It  was  urged  by  the  state  in  argument 
^hat  the  statute,  providing  that: 

"All  legal  costs  attending  the  arrest,  exam- 
ination, or  conveyance  of  an  offender,  except 
when  directed  or  approved  in  writing  by  the 
counsel  of  the  state,  or  county  commissioners, 


shall  be  paid  by  the  complainant"  (P.  8.  c  256, 
I  9) 

— ^was  applicable  to  this  claim,  and  that  it 
must  be  disallowed  because  its  incurrence 
had  not  been  previously  authorized  by  the 
state's  counsel.  But  that  statute  has  no  ap- 
plication to  the  claim  here  presented.  It  re- 
lates solely  to  expenses  incurred  in  prosecu- 
tions for  alleged  crimes,  and  has  nothing  to 
do  with  the  regulation  of  allowances  to  or 
on  behalf  of  defendants. 

The  state's  contention  that  the  court  has 
no  power  to  allow  this  claim  is  sound.  But 
the  reason  for  this  result  is  that  no  such 
authority  has  been  conferred  upon  the  court, 
and  not  that  the  consent  of  the  state's  coun- 
ael  is  essentiaL 
'    Exception  overruled.    Ail  concurred. 


(91  vt  am 
LAFOUNTAIN  &  WOOLSON  CO.  v.  BROWN. 

(Supreme  Court  of  Vermont     Windsor.     May 
1,  1917.) 

1.  Fbaudb,  Statute  of  «=»130(6>— ExEcnncD 

AgbEEMBNT — SAIJ&  OF.COBPORATB  SxOCK. 

The  rights  of  the  parties  under  an  uncondi- 
tional contract  for  the  sale  and  purchase  of  cor- 
porate stock  are  determined  independently  of 
the  statute  of  frauds,  where  the  stock  certi0cate 
has  been  delivered  and  payment  made,  though  the 
agreement  while  it  remained  executory,  would 
have  been  unenforceable  because  of  such  statute. 

2.  CoRPOBATiONS    ®=>155(2)  —  Tbansfeb    or 
Stock— Right  to  Dividend. 

The  dividend  on  stock  sold  ordinarily  be- 
longs to  the  one  who  was  the  owner  thereof 
when  the  dividend  was  actually  declared. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  i  561.] 

3.  CospoBATioNs   «=>155(3)  —  Tbansfeb   or 

Stock— Undivided  Sukplds. 
The  surplus  of  a  corporation  is  a  part  of 
the  stock  until  separated  from  the  capital  by  the 
declaration  of  a  dividend,  and  while  undivided 
will  pass  with  the  stock  In  a  transfer  thereof. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  {  663.] 

4.  Corporations  *=»119  — Sale  of  Stock  — 
'  Equitable  Interest  of  Btjteb. 

The  purchaser  of  corporate  stock  acqaires 
an  equitable  interest  before  completion  of  the 
transter  where  the  contract  of  sale  is  binding 
between  the  parties,,  and  .as  between  them  such 
interest  will  be  enforced  and  protected  as  a  trust 
[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  }}  499-603.] 

6.  Gobpobationb  <&=>116  — Salk  of  Stocx— < 

Construction  or  Contract. 
In  construing  a  contract  to  sell  corporate 
stock,  it  will  be  presumed  that  the  parties  in- 
tended, nothing  to  the  contrary  appearing,  that 
the  shares  were  to  be  transferred  m  their  condi- 
tion at  the  time  of  the  bargain. 

[Ed.  Note.— For  other  cases,  see  CTorporationa, 
Cent  Dig.  {i  493,  494,  496.] 

6.  Cobpobations  is=9l55(3)  —  Sale  of  Stock 

—Right  to  Dividend. 
Where  a  dividend  was  declared  after  the  exe- 
cution of  a  valid  contract  for  the  sale  of  cor- 
porate stock,  but  before  arrival  of  the  time  for 
delivery  and  payment,  the  buyer,  on  complying 
with  the  contract,  was  entitled  to  the  dividend. 

[Ed.  Note.— For  other  cases,  see  Corporation^ 
Cent  Dig.  i  563.] 


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rtA.POUNTAIN  <l!  WOOIBON  CX).  v.-BROWK 


37 


Szceptlona  from  Windsor  County  Oonrt; 
Iieight<»  P.  Slack,  Presiding  Judge. 

Action  by  the  Lafountaln  &  Woolson  Com- 
pany against  Walter  W.  Brown.  From  a 
judgment  toe  plaintiff,  defendant  brings  ex- 
ceptions.   Affirmed. 

Argued  before  WATSON,  O.  J.,  and  HA- 
SBLTON,  POWBBS,  TAYLOR,  and 
MILES,  33. 

Stickney,  Sargent  &  Skeels,  of  Ludlow,  for 
plaintiff.  Blanchard  Se  Tupper,  of  Spring- 
field, for  deftodant. 

TAYLOR,  J.  The  acUon  Is  contract  for 
money  had  and  received.  The  plaintiff  seds 
to  recover  the  amount  of  a  dividend  on  sto<^ 
purchased  by  It  from  the  defradant  The 
case  was  tried  by  the  court  on  an  agreed 
statement  of  facts,  and  the  plaintiff  had  Judg- 
ment. 

The  defendant  was  the  owner  of  the  ma- 
jor part  of  the  capital  stock  of  the  Brown 
Hotel  Company,  a  corporation,  operating  a 
hotel  at  Springfield,  Vt,  and  one  of  the  three 
directors  of  the  corporation.  On  March  24, 
1916,  he  had  negotiations  with  plaintiff's  rep- 
resentative regarding  the  sale  of  the  capital 
stock  of  the  hotel  company.  Later  the  same 
day  the  defendant's  agent  called  plaintiff's 
representative  by  telephone  and  told  him 
that  the  defendant  would  sell  his  stock  to  the 
plaintiff  at  a  certain  price  per  share.  Plain- 
tiff's representative  replied  that  the  plaintiff 
would  take  the  stock  at  the  price  named  and 
pay  for  It  the  following  morning,  to  which 
defendant's  agent  assented.  No  part  of  the 
stock  was  then  delivered  nor  any  part  of  the 
purchase  money  paid;  ndther  was  any  writ- 
ten memorandum  of  the  bargain  made.  On 
the  following  morning  the  defendant  and 
plaintiff's  representative  met  and  the  trans- 
action was  completed  by  delivery  of  the  cer- 
tificate of  stock  and  payment  of  the  purchase 
I»4ce.  During  the  negotiations  nothing  was 
said  about  cash  In  the  treasury  of  the  hotel 
company. 

On  Mardi  24,  1916,  after  the  above  tele- 
phone conversation,  the  defendant  called  a 
meeting  of  the  directors  of  the  hotel  com- 
pany, and  a  dividend  of  $1.50  per  share  was 
declared,  which  was  Immediately  paid  by  the 
treasurer  of  the  corporation.  The  defendant 
received  as  the  dividend  on  the  stock  bar- 
gained to  the  plaintiff  $499.50.  The  plaintiff 
first  learned  of  the  dividend  when  the  books 
of  the  hotel  company  were  turned  over  after 
the  delivery  of  the  stock.  Thereupon  It  made 
demand  upon  the  defendant;  and,  payment 
being  refused,  this  suit  was  brought. 

To  maintain  this  action  the  plaintiff  must 
establish  that  it  was  entitled  to  the  dividend 
as  the  purchaser  of  the  defendant's  stock; 
and  its  ri^it  to  receive  the  dividend  depends 
upon  its  relatlcm  to  the  stock  at  the  time  the 
dividend  was  declared.  It  Is  held  that  in 
case  of  options  and  sales  of  stock  for  future 
delivery  the  right  to  dividends  depends  upon 
ttie  question  at  what  time  with  reference  to 


the  declaratloa  of  the  dividend  the  title  pass- 
es. 7  R.  0.  I*  293.  This  transaction  was 
not  an  option.  It  culminated  in  an  uncondi- 
tional agreement  for  the  sale  and  purchase  of 
the  stock  before  the  dividend  was  declared. 
All  that  remained  to  be  done  was  the  deliv- 
ery of  the  certificate  and  the  payment  there- 
for at  the  time  fixed  In  the  agreement. 

[1]  The  defendant  contends  that  the  agree- 
ment of  March  24th  was  invalid  because  with- 
in the  statute  of  frauds,  so  that  no  rights 
could  accrue  under  It  Conceding  that,  while 
the  agreement  remained  wholly  executory,  it 
was  not  enforceable  because  of  the  statute, 
the  subsequent  delivery  and  payment  took 
the  transaction  out  of  the  statute,  leaving  the 
rig&ts  of  the  parties  to  be  determined  inde- 
pendently of  it.  Patterson  v.  Sargent,  83 
Vt  516,  77  AU.  338,  138  Am.  St  Rep.  1102 ; 
Strong  T.  Dodds,  47  Vt  348  ?  Fay  v.  Wheel- 
er, 44  Vt  292 ;  2  Cook  on  Cor.  1045. 

IZ,  3]  The  defendant  claims  further  that 
title  to  the  stodc  did  not  pass  until  payment 
and  delivery;  and  so^  as  the  stock  belonged 
to  him  at  the  time  the  dividend  was  declared, 
the  dividend  was  payable  to  him.  There  is 
no  disagreement  as  to  the  general  rule  that  a 
dividend  belongs  to  the  one  who  was  the 
owner  of  the  stodi  when  the  dividend  was 
actually  declared.  See  King  v.  Follett  3  Vt 
S85.  It  is  also  well  settled  that  the  surplus 
of  a  corporation  is  a  part  of  the  stodi  itself 
until  separated  from  the  capital  by  the  dec- 
laration of  a  dividend.  See  In  re  Beaton's 
Estate,  89  Vt  560,  96  AU.  21,  L.  R.  A.  1916D, 
201.  Such  undivided  surplus  will  pass  wltb 
the  stock  under  that  name  in  a  transfer 
thereof.  The  purchaser  takes  the  stock  with 
all  its  Incidents,  one  of  which  Ls  the  right  to 
receive  its  proportionate  share  of  imdlvlded 
profits.  Harris  v.  Stevens,  T  N.  H.  454; 
March  v.  Eastern  Railroad  Co.,  43  N.  H.  620; 
7  R.  C.  L292;  10  Oye.  556. 

[4]  'The  defradant  recognizes  this  fact  and 
bases  his  right  to  the  dividend  upon  the  claim 
of  legal  title  to  the  stock  at  the  time  it  was 
declared.  But  the  question  does  not  depend 
alone  upon  legal  title.  The  principle  of  eq- 
uitable assignments  applies.  The  purchaser 
of  shares  of  corporate  stock  is  held  to  acquire 
an  equitable  interest  in  the  stock  before  the 
transfer  Is  completed,  if  the  agreement  of 
purchase  and  sale  is  binding  between  the  par- 
ties. As  between  them  such  Interest  will  be 
enforced  and  protected  as  a  trust.  1  Mora- 
witz  on  Pr.  Cor.  |  174. 

[6] '  In  construing  an  agreement  for  the  sale 
of  shares  of  stock  it  will  be  taken  to  be  the 
intention  of  the  parties,  nothing  to  the  con- 
trary appearing,  that  the  shares  are  to  be 
transferred  in  their  condition  at  the  time  of 
the  bargain.  1  Morawltz  on  Pr.  Cor.  f  175. 
Thus  the  law  imputes  to  the  seller  an  Inten- 
tion to  deal  fairly  with  the  purchaser,  and  In 
doing  so  requires  him  to  deliver  only  what 
entered  into  the  value  and  price  at  which  the 
stock  was  sold.  While  it  permits  him  to  re- 
tain the  "fallal  fruit,"  it  does  not  accord  to 


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101  AtliANTIC  EEPOBTEB 


(Vt 


him  the  additional  privilege  o£  "shaking  the 
tree"  after  the  bargain  Is  closed. 

[I]  It  follows  from  what  we  have  said  that 
If,  after  a  valid  contract  for  the  sale  of 
shares  of  stock  Is  made,  but  before  the  time 
for  delivery  and  payment  arrives,  a  dividend 
Is  declared,  the  purchaser  Is  entitled  to  the 
dividend  on  complying  with  the  contract. 
Phlnlzy  V.  Murray,  83  Ga.  747,  10  S.  B.  358, 

6  Ia  R,  A.  426,  20  Am.  St.  Rep.  342;  Currle 
T.  ■RTiIte.  45  N.  Y.  822;   Harris  v.  Stevens, 

7  N.  H.  454 ;  Conant  v.  Reed,  1  Ohio  St.  298 ; 
Beadi  T.  Hamersham,  Ll  R.  4  E>x.  D.  24 ;  7 
B.  G.  I/.  293;  2  Addison  on  Con.  !  661 ;  CJook 
on  Stocks  &  Stockholders,  {  543 ;  2  Cook  on 
Cor.  S  539;  1  Morawltz  on  Pr.  Cor.  If  174- 
178. 

The  result  is  that  under  the  agreement  In 
this  case  the  dividend  belongs  to  the  plaintiff. 
Judgment  aturmed. 


(n  Vt  «»  

CORBY  et  al  v.  BABRE  GBANITB  &  QUAE- 
BY  CO.  et  al. 

(Supreme  Court  of  Vermont.     Washington. 
May  8,  1917.) 

1.  CoBPOBATioNs  «=»665(3)  — Foreign  Cobpo- 

RATIONS— INTEBNAL   AFFAIRS— JUBISDICTIOW. 

A  court  of  chancery  may,  where  all  the  nec- 
pssary  parties  are  before  it,  and  where  the  re- 
lief soufrht  is  within  the  jurisdiction  of  a  court 
of  chancery,  award  a  stockholder  relief  against 
a  foreign  corporation  expressly  chartered  to  do 
business  in  the  state  and  having  its  property  and 
business  here,  although  it  involves  an  interfer- 
ence with  its  internal  affairs. 

[Kd.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  {§  2571,  2573,  2600.] 

2.  PtEAMNO  ®=5>214(1)— Demtjrbe»— Mattebs 
Admitted  —  Aujeqations  on  Infobmation 
AND  Belief. 

A  demurrer  to  allegations  on  information 
and  belief  admits  only  the  belief  and  informa- 
tion,, and  not  the  focts  pleaded. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  §§  525.  529.] 

3.  Corporations  ®=»401— Directors— Rionxs. 

The  directors  of  a  corporation  cannot  repre- 
sent it  in  transactions  with  another  corporation 
in  which  they  are  shareholders  if  their  interest 
in  the  latter  company  might  induce  them  to 
favor  it  at  the  expense  of  the  comi>any  whose  in- 
terests have  been  intrusted  to  their  care. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  H  1363,  1364,  1595.] 

Appeal  in  Chancery,  Washtngton  County; 
Fred  M.  Butler,  Chancellor. 

Action  by  Frank  M.  Corry,  trustee,  and 
another  against  the  Barre  Granite  &  Quarry 
Company  and  others.  From  a  decree  sus- 
taining a  demurrer  to  the  complaint,  comr 
plalnants  appeal.  Decree  affirmed,  and 
cause  remanded,  with  leave  to  amend. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASELTON,  POWEBS,  and  TAY- 
LOB,  JJ. 

Edward  H.  Deavltt,  of  Montpeller,  for  ap- 
pellants. Jolm  W.  Gordon  and  S.  HoUister 
Jackson,  both  of  Barre,  for  appellees. 


MUNSON,  C.  jr.  This  complaint  is  prose- 
cuted by  Frank  M.  Corry,  trustee  of  the  Wet- 
more  &  Morse  Granite  Company,  against  the 
Barre  Granite  &  Quarry  Comi>any  and  cer- 
tain of  Its  stockholders,  in  behalf  of  himself 
as  trustee  and  all  stockholders  of  the  Barre 
Company  not  made  parties  defendant  The 
complaint  was  demurred  to  for  want  of 
equity  and  on  several  grounds  specially  as- 
signed, and  was  adjudged  insufficient  and 
dismissed. 

nie  Wetmore  &  Morae  Granite  Company, 
hereinafter  referred  to  as  the  Wetmore  Com- 
pany, is  a  corporation  organized  and  existing 
under  the  laws  of  this  state.  The  Barre 
Granite  &  Quarry  Company,  herein  referred 
to  as  the  Barre  Company,  is  a  corporation 
organized  and  doing  business  under  the  laws 
of  Maine  and  having  its  principal  offices  at 
Portland  in  tliat  state,  and  at  Barre  dty  in 
this  state.  It  was  Incorporated  for  the  pur- 
pose of  carrying  on  the  business  of  quarrying 
granite  in  the  town  of  Barre  In  this  state. 

The  complaint  alleges  that  the  capital 
stock  of  the  defendant  corporation  Is  (200,- 
000,  divided  in  20,000  shares,  of  the  par 
value  of  $10  eadi ;  that  the  plaintiff  trustee 
was,  on  the  7th  day  of  August,  1916,  and 
ever  since  has  been,  the  owner  of  105  shares 
of  said  sto<^;  that  ever  since  that  date  a 
majority  of  the  stock  of  the  defendant  CN- 
poratlon  has  been  owned  and  controlled  by 
defendants  Donald  Smith,  Angus  A.  Smith, 
U.  Nelson  Jackson,  and  S.  Hollister  Jackson. 

The  matters  alleged  as  the  ground  for  re- 
lief are  these:  On  the  10th  day  of  August, 
1916,  a  special  meeting  of  the  stockholders 
of  the  defendant  company  was  held  in  Port- 
land pursuant  to  a  notice  which  specified  as 
the  business  of  the  meeting  the  filling  of 
vacancies  in  the  board  of  directors,  and  to 
see  what  the  corporation  would  do  "to  set- 
tle its  indebtedness,  whether  by  sale  of  its 
properties  or  otherwise;  and  If  by  sale,  to 
empower  an  agent  to  make  projier  transfers 
end  to  wind  up  its  affairs."  At  this  meeting, 
the  four  stockliolders  above  named  were 
elected  directors  to  fill  vacancies  in  the 
board,  which  as  now  constituted  consists  of 
five.  The  following  resolution  was  then 
offered: 

"That  it  is  the  sense  of  this  meeting  that  it 
will  be  to  the  advantage  of  the  stockholders  to 
sell  all  the  assets  of  the  corporation,  settle  the 
outstanding  bills  and  dissolTe  the  corporation; 
the  directors  are  therefore  instructed  to  en- 
deavor to  find  a  customer  or  customers  for  the 
property,  and  whenever  they  find  a  customer  or 
customers  who  are  ready  and  willing  to  purchase 
the  whole  or  any  part  of  said  property  at  a 
price  which  in  their  judgment  is  advantageous 
to  the  stockholders,  they  are  authorized  to  com- 
plete said  sale  and  as  agents  of  said  corporation 
to  execute  and  deliver  •  •  •  such  instru- 
ments of  sale  as  may  be  necessary.    •    *    •  " 

Mr.  Deavltt,  who  was  present  as  proxy 
for  the  plaintiff  and  another  stockholder 
originally  a  party  plaintiff,  offered  an  am^id- 
ment  which  provided  that  any  sale  should 


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OORRT  r.  BA.BXB  ORANITE  *  QUARRY  CO. 


39 


be  at  imbllo  aoctioit.  This  amendinent  waa 
rejected  by  a  vote  of  6,601  diares  to  106 
shares,  and  the  resolution  was  then  adopted 
by  the  same  vote.  The  plaintiff's  shares 
were  voted  In  favor  of  the  amendment  and 
against  the  adoption  of  the  reeolutlon. 
Ueavltt  orally  objected  to  the  voting  on  these 
questions  of  the  6,599  shares  owned  by  Don- 
ald Smith  and  H.  Kelson  Jackson,  on  the 
ground  that  they  held  the  stock  in  behalf  of 
the  K  L.  Smith  Company,  a  corporation  or- 
ganized under  the  laws  of  Vermont,  and 
that  it  was  a  fraud  on  the  other  stockholders 
to  thus  vote  the  stock,  the  E.  L.  Smith  Com- 
pany being  engaged  in  a  business  similar  to 
that  of  the  Barre  Company,  and  there  being 
other  quarry  companies  and  Individuals  who 
were  ready  to  purchase  this  property  at 
auction.  The  assets  of  the  Barre  Company, 
other  than  book  accounts  and  bills  receivable, 
consist  of  land  in  the  town  of  Barre  upon 
which  are  located  granite  quarries,  together 
with  buildings,  machinery,  and  personal 
property  thereon,  and  on  which  the  Barre 
Company  has  been  for  the  past  10  years,  and 
now  is,  engaged  iu  quarrying  granite,  having 
no  quarrying  or  other  business  in  any  other 
place.  Surrounding  this  land  are  lands  own- 
ed severally  by  the  E.  L.  Smith  Company, 
the  Wells-Lampson  Quarry  Comi>any,  and 
the  Wetmore  &  Morse  Granite  Company,  all 
going  Vermont  corporations,  engaged  in  the 
business  of  quarrying  granite,  and  eadi  bay- 
ing its  principal  office  in  this  state.  The 
land  of  the  Barre  Company  is  particularly 
valuable  to  these  companies  because  of  its 
location.  The  complaint  avers  upon  Infor- 
mation and  belief  that  the  Individual  defend- 
ants, being  four  of  the  five  directors  of  the 
defendant  company,  have  conspired  together 
to  operate  said  corporation  and  control  a 
sale  of  its  assets  for  their  own  personal  ben- 
efit to  the  detriment  of  the  plaintiff  and 
other  minority  stockholders,  and  with  Intent 
to  deprive  the  minority  stockholders  of  their 
property  are  arranging  to  turn  over  the  as- 
sets of  the  corporation  to  the  E.  L.  Smith 
Company,  or  some  person  for  it,  at  a  sum 
much  less  than  its  true  value.  It  Is  alleged 
that  the  plaintiff  Corry  is  the  president  of 
the  Wetmore  Company;  and  that  if  the  real 
and  personal  property  of  the  defendant  cor- 
poration is  put  up  at  auction,  he  will  start 
the  bidding  on  account  of  the  Wetmore  Com- 
pany at  $120,000;  and  that  the  property  Is 
worth  $150,000  or  more. 

The  defendants  invoke  the  rule  that  a 
court  will  not  take  Jurisdiction  of  the  inter- 
nal affairs  of  a  foreign  corporation;  and  con- 
tend that  the  relief  sought  here  would  be  an 
interference  with  the  internal  affairs  of  the 
defendant  company.  It  is  doubtless  well  set- 
tled that  the  general  rule  is  as  above  stated ; 
but  there  Is  some  disagreement  as  to  what 
constitutes  the  affairs  thus  designated,  and 
courts  have  bad  difficulty  In  formulating  a 
rule  to  serve  as  a  test  In  all  cases,  as  will 


appear  from  an  examination  of  the  ded- 
siona  See  North  Star,  etc.,  Co.  v.  Field, 
64  Md.  151,  20  AtL  1089 ;  Babcock  ▼.  Farwell, 
245  IU.  14,  91  N.  B.  683,  137  Am.  St  Bep. 
284,  19  Ann.  Gas.  74 ;  State  v.  De  Groat,  109 
Minn.  168,  123  N.  W.  417,  134  Am.  St.  Rep. 
764;  Condon  v.  Mutual  Reserve  Asso.,  88 
Md.  99,  42  AU.  044,  44  I*  R.  A.  149,  73  Am. 
St  Rep.  100;  Madden  v.  Penn.,  etc..  Light 
Co.,  181  Pa.  617,  37  Atl.  817,  88  L.  R.  A.  638. 
Except  in  cases  involving  the  exercise  of  vls- 
Itorial  powers,  the  question  presented  by  ap- 
plications for  relief  in  cases  of  this  charac- 
ter "is  not  strictly  cme  of  Jurisdiction,  but 
rather  of  discretion  in  the  exercise  of  Ju- 
risdiction." The  refusal  to  take  Jurisdiction 
is  often  put  upon  the  ground  of  policy  and 
expediency;  on  a  want  of  power  to  enforce 
a  decree  rather  than  on  a  lack  of  Jurisdic- 
tion to  make  it  Babcock  v.  Farwell;  Ed- 
wards T.  SchlUlnger,  245  111.  231,  01  N.  EJ. 
1M8,  33  I*  R.  A.  (N.  S.)  805,  137  Am.  St  Rep. 
308;  State  v.  No.  Am.  Land  Co.,  106  La.  621, 
31  South.  172,  87  Am.  St  Rep.  309;  Chicago 
TlUe,  etc.,  Co.  ▼.  Newman,  187  Fed.  673,  109 
O.  C.  A.  263;  Beard  ▼.  Beard,  66  Or.  612, 
1.33  Pac.  797,  134  Pac.  1196;  note,  19  Ann. 
Cas.  84 ;  note,  Ann.  Cas.  1913E,  457. 

Irrespective  of  the  question  as  to  the  prop- 
er test  to  be  applied  in  determining  what  are 
the  "internal  affairs"  of  a  corporation,  It 
may  safely  be  said  that  when  a  corporation 
is  nonresident  only  In  that  it  is  the  creation 
of  another  state — ^Its  officers,  agents,  stock- 
holders, business  and  property  all  being  with- 
in the  Jurisdiction  of  the  court — policy  and 
expediency  do  not  require  the  court  to  deny 
relief  in  a  proper  case  on  the  ground  that  the 
Internal  affairs  of  the  corporation  will  be 
affected.  Where  the  relief  sought  is  within 
the  general  Jurisdiction  of  a  court  of  chan- 
cery, and  all  the  parties  necessary  to  the  full 
and  proi)er  aVlJustment  of  the  rights  involv- 
ed are  before  the  court,  and  where  the  relief 
sought  docs  not  require  an  exercise  of  the 
visitorial  power  of  the  government,  the  court 
should  determine  the  controversy,  Instead  of 
remitting  suitors  to  a  foreign  Jurisdiction. 
Babcock  v.  Farwell;  Edwards  v.  SchlUlnger; 
State  V.  No.  Am.  Land  Ca;  Wlnebur^  v. 
U.  S.  Steam,  etc.,  Co.,  173  Mass.  60,  63  N.  B. 
145,  73  Am.  St  Rep.  261;  Richardson  v. 
ainton,  etc.,  Co.,  181  Mass.  680,  64  N.  E. 
400;  Andrews  v.  Miner's  Corporotlon,  205 
Moss.  123,  91  N.  E.  122,  137  Am.  St.  Rep.  428; 
Travis  V.  Knox  Terpezone  Co.,  215  N.  Y.  250, 
109  N.  E.  250,  Ij.  R.  A.  1916A,  542,  Ann.  Gas. 
1917 A,  387,  12  R.  C.  L.  33.  It  was  decided 
in  Richardson  ▼.  Clinton,  eta,  Co.,  that  a 
stockholder's  suit  brought  to  obtain  relief 
from  the  fraudulent  acts  of  the  corporate 
officers  Is  in  the  nature  of  a  suit  by  the  cor- 
poration against  wrongdoers,  and  may  be 
brought  In  the  state  where  the  corporate 
officers  and  prtq^erty  are  located.  See,  also, 
Wilson  Am.  Palace  Car  Ca,  64  N.  J.  Eq.  634, 
54  AU.  415. 


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101  ATIANTIC  REPORTEB 


(Vt. 


[1]  It  Is  dear  that  the  general  subject-  corporatloD  In  which  they  are  shardiolders. 


matter  of  this  complaint  Is  within  the  juris- 
diction of  the  coart  of  chancery.  The  de- 
fendant company,  although  a  foreign  corpo- 
ration, was  chartered  expressly  for  the  pur- 
pose of  doing  business  In  this  stata  Four  of 
Its  five  directors.  Its  business  and  its  proper- 
ty, are  within  the  territorial  Jurisdiction  of 
the  court.  The  corporation  and  these  direc- 
tors have  been  duly  served  and  are  before  the 
court  There  is  no  obstacle  to  prevent  the 
court's  enforcement  of  its  decree.  In  these 
circumstances,  the  classification  of  the  af- 
fairs of  the  corporation  which  are  involved 
in  this  proceeding,  whether  internal  or  other- 
wise, is  of  little  or  no  conseqaence^  If  the 
case  stated  in  the  bill  is  one  which  entitles 
the  complainant  to  equitable  relief,  the  relief 
may  pr(^)erly  be  given,  even  If  it  Involves  an 
interference  with  the  internal  affairs  of  the 
corporation. 

The  charge  as  it  stands,  upon  allegations 
adequately  made.  Is  that  the  Individual  de- 
fendants, who  are  a  majority  of  the  direc- 
tors, and  own  or  control  a  majority  of  the 
stock,  have  conspired  to  so  operate  the  coi^ 
poratlon  as  to  effect  a  sale  of  its  assets  for 
their  own  personal  benefit  and  to  the  detri- 
ment of  the  minority  stockholders;  and  to 
this  end  have  passed  a  vote  to  dispose  of  the 
property  at  private  sale,  and  are  arranging 
to  transfer  It  to  the  E.  L.  Smith  C!ompany, 
or  some  person  for  it,  at  a  sum  much  less 
than  Its  true  value,  l^ese,  and  other  allega- 
tions before  stated,  present  the  case  of  a  cor- 
poration whose  property  is  so  located  as  to 
give  It  the  advantage  of  competing  offers, 
which  refuses  to  sell  at  public  auction,  and 
proposes  to  sell  to  a  certain  party  for  an  In- 
adequate consideration.  The  letter  set  up 
In  the  bill,  in  which  the  directors  of  the  de- 
fendant company  Invite  the  Wetmore  Ck)m- 
pany  to  send  them  in  writing  Its  best  price 
for  the  property,  does  not  meet  the  situation. 

[2]  There  are  several  matters  stated  in  the 
bill  whldi  stand  solely  on  an  allegation  that 
the  complainant  is  Informed  and  believes. 
These  cannot  be  considered;  for  as  to  these 
the  demurrer  admits  nothing  more  than  that 
the  complainant  Is  so  informed  and  believes. 
Bancroft  v.  VaU,  90  Vt  — ,  99  Atl.  1014.  If 
one  of  the  allegations  thus  defectively  insert- 
ed was  made  good  by  an  amendment  adding 
the  words  "and  therefore  avers,"  it  would 
appear  that  nearly  all  the  stock  of  the  E.  U 
Smith  Company,  the  proposed  transferee,  is 
owned  by  the  four  directors  whom  the  reso- 
lution of  the  defendant  ccnnpany  empowers 
to  make  the  sale.  Upon  the  case  as  thus  pre- 
sented there  could  be  no  room  to  doubt  The 
directors  of  the  defendant  company  would, 
in  effect  be  selling  the  property  to  them- 
selves. The  right  to  do  this  is  denied  to  all 
persons  acting  in  a  fiduciary  capacity. 

[3]  The  directors  of  a  corporati<m  cannot 
represent   it  In   transactions  with   another 


if  their  Interest  in  the  latter  company  might 
InViucc  them  to  favor  it  at  the  expense  of  the 
comimny  whose  Interests  have  been  Intrusted 
to  their  care.    1  Mor.  Prl.  Corp.  |  620. 

The  defect  in  the  allegations  pointed  out 
renders  the  bill  demurrable,  and  so  the  de- 
murrer was  properly  sustained. 

Decree  afflrmed,  and  cause  remanded,  with 
leave  to  apply. 

(M.  Vt  tO) 
SANDERSON  v.  BOSTON  &  AT.  B.  B. 

(Supreme  Court  of  Vermont    Caledonia.    May 
8,  1917.) 

1.  Mastteb  and  Skbvant  «=»276(7)— iKJUBiiea 
TO  Servant  —  Safe  Pi.aoe  to  Wobk—  Evi- 
dence. 

Where  a  railroad  brakeman  testified  that  he 
was  swept  from  a  side  car  ladder  by  an  unusually 
large  car  on  the  adjacent  track,  and  that  the 
car  was  not  far  enough  away  from  the  one  upon 
which  he  was  riding,  it  was  unnecesBary  that  the 
size  of  the  car  and  its  distance  from  the  other  be 
determined  by  exact  measurements. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  H  951,  950.] 

2.  Master  and  Servant  «=>246(2)— iNJtmiES 
to  Servant— Duties  or  Servant. 

A  railroad  brakeman,  accustomed  to  cars  of 
a  certain  width,  who,  while  riding  on  a  side 
ladder,  saw  that  his  own  car  was  approaching 
a  car  of  unusual  size  and  width,  which  would 
probably  strike  bim,  and  endeavored  to  escape, 
IS  not  responsible  for  the  exercise  of  the  coolest 
judgment  while  in  such  dangerous  situation. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {  791.1 

3.  Evidence  €=>20(2)— Judiciai,  Notice. 

That  consestion  in  larRe  cities  requires  that 
many  railroad  tracks  be  laid  close  together,  and 
that  it  is  therefore  not  negligence  so  to  lay 
them,  is  not  a  matter  resting  in  judicial  knowl- 
edge. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent  Dig.  {  24.] 

4.  Master  AND  Servant  «=>]  12(1)— Duties  01 
Masters— Safe  Place  to  Work. 

It  is  the  dut7  of  a  railroad  to  jirovtde  such 
tracks  and  cars,  and  such  supervision  of  their 
use,  as  would  afford  Its  servants  a  reasonably 
safe  place  in  which  to  work. 

[Ed.  Nota— For  other  casies,  see  Master  and 
Servant  Cent  Dig.  §|  212,  213,  218.] 

5.  Master  and  Servant  <S=»103(1)— Neoij- 
OENCE  OF  Master— LiABrLiTT. 

Negligence  of  a  railroad,  in  making  its 
tracks  unnecessarily  hazardous,  is  chargeable  to 
it  without  inquiring  as  to  the  officers,  agents,  or 
servants  by  whose  instructions  or  conduct  the 
dangerous  situation  is  created. 

[Kd.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  |  175.] 

8.  Master  and  Servant  «=32]3(3)— Injuries 
TO  Servant— Assumption  of  Risk, 
A  railroad  brakeman  does  not  assume  the 
risk  of  the  extraordinary  hazard  of  the  pres- 
ence of  an  unusually  large  car  on  the  adjacent 
track,  which  was  so  placed  as  to  sweep  any 
person  from  the  side  ladder  of  another  car,  un- 
less the  risk  was  so  obvious  that  the  servant 
ought  to  have  known  of  it 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  |  661.] 


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7.  Mabtes  a!»d  Seitvant  *=>150(8)— DurntB 

OF  Master— Wabnino. 
If  the  master  maintains,  as  to  his  places  of 
work,  a  risk  of  which  the  servants  are  excusably 
ignorant,  it  is  the  master's  duty  to  instruct  and 
caution  them  regarding  the  danger. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  S  305.] 

&  Masteb  and  Servant  e=»247(l)— Injubies 

TO  SEBVANT— CONTRIBCTOBY  NEQLiaENCE. 

Where  a  railroad  permitted  an  unusually 
large  car  to  be  hauled,  and  negligently  allowed 
it  to  stand,  so  that  it  would  sweep  any  person 
from  the  side  ladder  of  a  car  on  an  adjacent 
track,  a  brakcman'e  contributory  negligence 
would  not  bar  his  recovery  for  injuries,  since  it 
could  not  be  said  to  be  the  sole  cause  of  his  in- 
jury. 

(Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  g  795.] 

Exceptions  from  Caledonia  County  Court; 
Zed  S.  Stanton,  Judge. 

Action  by  Percy  D.  Sanderson  against  the 
Boston  &  Maine  Railroad.  Judgment  for 
plaintiff,  and  defendant  excepts.    Affirmed. 

Argued  before  MUNSON,  a  J.,  and  WAT- 
SON, HASEI/rON,  POWERS,  and  TAY- 
LOR, JJ. 

Porter,  Witters  &  Harvey,  of  St  Johns- 
bury,  for  plaintiff.  George  B.  Toung  and 
Walter  H.  Cleary,  both  of  Newport,  for  de- 
tendant. 


MUNSON,  0.  J.  The  plaintiff,  a  hraiceman 
employed  by  the  defendant,  was  injured  In 
the  defoidant's  freight  yard  at  Lowell,  Mass., 
while  upon  the  upper  rounds  of  the  side 
ladder  of  a  moving  freight  car,  by  striding 
against  the  corner  of  one  of  several  freight 
cars  which  were  standing  together  on 
another  track.  The  suit  is  brought  under  the 
federal  Employers'  Ldability  Act  (Act  April 
22,  1908,  c.  149,  35  Stat  66  [U.  S.  Comp.  St 
1016,  {{  8657-8665]),  and  seeks  to  recover  on 
account  of  tlie  negligence  of  the  defendant 
as  alleged  in  a  declaration  and  amendment 
thereof  containing  17  counts.  The  only  ex- 
ception argued  is  one  taken  to  the  overrul- 
ing of  the  defendant's  motion  for  a  directed 
verdict.  The  grounds  of  the  motion  as  there- 
in stated  present  the  claims  that  there  is  no 
evidence  tending  to  show  negligence  on  the 
part  of  the  defendant ;  that  on  the  evidence 
presented  the  sole  cause  of  the  accident  was 
the  plaintiff's  negligence;  that  the  risk  was 
one  naturally  incident  to  the  plaintiff's  em- 
ployment and  therefore  an  assumed  risk; 
that  the  risk  was  due  to  a  permanent  condi- 
tion, of  which  the  plaintiff  had  or  ought  to 
have  had  knowledge,  and  was  therefore  as- 
sumed by  bis  continuing  in  the  work  without 
objection.  The  testimony  of  the  plaintiff  is 
all  the  evidence  we  have  regarding  the  loca- 
tion of  the  tracks  and  the  manner  in  which 
be  received  his  injury. 

The  plaintiff  had  worked  for  the  defendant 
as  a  brakeman  over  three  years,  first  ir- 
regularly as  a  spare  hand,  and  afterwards 


continuously  on  a  regular  extra  train.  His 
runs  during  this  time  were  on  different  lines, 
some  of  which  passed  through  the  Lowell 
yards,  where  there  was  frequently  some 
shifting  of  cars  by  the  crew.  At  the  time 
of  the  accident,  which  occurred  Just  before 
dark,  the  plaintiff  was  the  flagman  and  had 
the  care  of  the  lamps,  and  these  he  had 
ready  for  lighting  before  going  to  the  work 
in  which  he  was  injured.  He  testified  that 
he  was  sometimes  called  upon  to  assist  the 
conductor,  and  that  It  was  his  duty  when 
his  own  work  was  done  to  help  get  the  train 
over  the  road.  On  this  occasion  he  had  been 
helping  the  conductor  check  up  some  cars, 
and  had  afterwards  gone  forward  on  the  top 
of  the  rear  cars  letting  off  some  brakes.  In 
thus  passing  up  the  train  he  came  to  the  car 
on  which  he  was  injured,  and  started  to  go 
down  the  side  ladder  to  set  a  switch.  As  he 
was  beginning  to  descend  he  glanced  ahead, 
and  saw,  some  35  feet  away,  among  the  cars 
standing  on  the  next  track,  one  which  stood 
out  further  than  the  rest,  which  he  thought 
would  not  dear  him.  He  attempted  to  get 
back  upon  the  roof  of  the  car,  but  was  hit  by 
the  projecting  car  and  thrown  to  the  ground. 
The  plaintiff  testified  that  no  one  asked  him 
to  set  this  switch,  but  that  there  was  no  one 
else  there  to  do  it;  that  the  middle  man 
sometimes  set  the  switch;  and  that  he 
thought  he  was  then  on  that  section  of  the 
train. 

The  plaintiff  testified  that  he  had  occasion- 
ally helped  in  making  shifts  in  this  yard,  but 
was  not  very  familiar  with  the  tracks;  that 
he  had  never  known  of  a  brakeman  being 
knocked  off  a  side  ladder  by  a  car  on  another 
track;  that  he  had  never  been  told  or  cau- 
tioned regarding  such  a  risk,  and  had  never 
known  but  what,  between  tracks,  there  was 
room  enough  to  ride  on  the  ladder ;  that  he 
had  seen  cars  that  were  not  set  in  to  clear, 
where  a  man  riding  on  the  side  would  get 
hit;  that  the  rule  was  to  set  cars  In  far 
enough  so  that  they  would  clear,  and  that  he 
always  supposed  that  that  was  the  practice, 
but  that  he  did  not  knbw  as  he  had  observed 
enough  to  know  what  the  practice  was ;  that 
cars  could  not  be  left  on  a  curve,  but  must 
be  on  where  the  track  was  straight,  and  that 
all  that  was  necessary  was  to  have  them  far 
enough  on  to  clear  everything  on  the  next 
track ;  that  where  he  had  testified  about 
clearing  the  cars  he  meant  clearing  the  car 
and  a  person  on  the  side  of  it 

In  one  place  the  plaintiff  testified  that  he 
'did  not  know  whether  the  car  he  struck 
stood  on  a  cross-over  or  not ;  but  he  stated 
elsewhere  that  they  had  passed  cars  before 
coming  to  this  one,  and  that  there  were  cars 
beyond  this,  and  these  statements  Indicate 
that  the  car  was  not  on  a  cross-over.  De- 
fendant comments  upon  the  answers  which 
the  plaintiff  gave  in  stating  what  he  under- 
stood the  requirement  to  be  as  regards  ade- 


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101  ATLANTIC  REPORTEB 


(Vt 


quate  provision  for  the  "clearing"  of  the 
cars,  and  calla  attention  to  the  fact  that  it 
was  not  until  after  plaintiff's  counsel  had  had 
an  opportunity  to  confer  with  him  that  he 
changed  his  testimony  to  include  the  clearing 
of  a  person  on  the  car,  and  Insists  that  this 
change  Is  not  sufficient  to  do  away  with  the 
effect  of  his  previous  testimony.  But  It  was 
manifestly  for  the  Jury  to  say  what  the 
plaintiff  Intended  by  his  earlier  answers,  and 
what  fact  his  evidence  on  this  point  as  a 
whole  tended  to  establish. 

[1]  It  is  said  there  was  no  evidence  as 
to  the  exact  distance  between  the  tracks, 
nor  as  to  the  distance  necessary  to  make 
them  safe,  and  no  evidence  as  to  the  size  of 
the  car  which  struck  the  plaintiff,  nor  that 
it  was  a  large  car.  It  was  not  necessary 
that  these  matters  should  be  determined  by 
measurement  The  plaintiff's  description  of 
the  car  as  he  saw  it  was  evidence  tending 
to  show  that  it  was  a  large  car.  Ttds  car, 
standing  on  a  parallel  track,  struck  the 
plaintiff  while  he  was  on  the  side  ladder  of 
a  car.  This  was  evidence  tending  to  show 
one  of  two  things — either  that  the  tracks 
were  too  close  to  one  another,  or  that  the  car 
was  too  wide  to  be  used  where  cars  were 
equipped  with  side  ladders.  It  is  said  that 
the  plaintiff's  injury  resulted  from  a  fixed 
and  unchanged  condition  which  extended 
throughout  bis  period  of  service.  But  this 
condition,  ordinarily  safe,  was  made  dan- 
gerous by  the  introduction  of  a  car  not  adapt- 
ed to  it  It  is  argued  that  the  sole  cause 
of  the  accident  was  the  plaintiff's  failure 
to  select  for  his  descent  a  car  which  had  an 
end  ladder.  There  is  no  evidence  that  any 
of  the  cars  had  such  a  ladder.  It  is  said 
that  the  plaintiff  was  working  as  a  volun- 
teer. The  plaintiff  testified  that  after  his 
special  work  was  done  it  was  his  duty  to 
assist  in  getting  the  train  along;  that  he  was 
then  doing  the  work  on  the  rear  end  of  the 
train;  and  that  he  was  going  down  to  set  a 
switch  to  enable  it  to  back  out  on  another 
track.  l%iB  was  evidence  tending  to  show 
that  his  injury  was  received  while  In  the 
line  of  his  duty. 

[2]  It  is  argued  that  the  risk  which  the 
plaintiff  encountered  was  open  and  obvious, 
and  must  have  become  known  to  him  during 
his  employment  The  danger  arose  from 
the  unusual  width  of  the  car  standing  on 
the  parallel  track,  in  connection  with  an 
allowance  of  q^ace  between  the  tracks  suffl- 
<dent  only  for  cars  of  ordinary  width.  A 
trainman  riding  on  the  top  of  a  freight  car 
could  hardly  be  expected  to  Judge  accurately 
of  the  sufficiency  of  such  a  space  to  answer 
an  unusual  and  unexpected  requirement 
The  plaintiff  prudently  acted  on  the  supposi- 
tion that  the  tracks  were  not  far  enough 
apart  to  permit  him  to  clear  a  car  of  un- 
usual width,  and  endeavored  to  avoid  the 
danger,  as  soon  as  be  discovered  it  It  is 
said,  however,  that  be  saw  and  appreciated 
the  danger  before  he  reached  the  car,  and 


that  be  could  have  seen  and  appreciated  it 
in  time  to  avoid  all  risk,  If  he  had  looked 
ahead  carefully  before  starting  to  descend, 
and  that  In  undertaking  to  escape  from  the 
danger  he  did  not  act  with  prudence  and 
promptnesa  But  it  cannot  be  said  as  mat- 
ter of  law  that  be  ought  to  have  seen  the 
car  sooner,  and  a  servant  who  suddenly  finds 
himself  In  a  dangerous  situation,  for  whldi 
he  Is  not  rcsi)onsible,  is  not  held  to  an  exer- 
cise of  the  coolest  Judgment 

[3]  It  is  said  that  in  large  freight  yards 
in  cities  it  Is  absolutely  essential  that  there 
be  many  tracks  close  together,  and  that  it 
is  not  negligence  to  have  them  so  arranged. 
This  statement,  as  applied  to  the  situation 
presented  here,  cannot  be  accepted  as  assert- 
ing a  fact  resting  in  Judicial  knowledge.  The 
language  is  evidently  based  on  what  was 
said  In  the  opinion  In  Randall  v.  B.  &  O.  B. 
R.  Co.,  109  U.  S.  478,  8  Sup.  Ct  322,  27  I* 
Ed.  1003,  where  the  plaintiff  was  struck 
by  an  engine  while  standing  in  an  unneces- 
sarily exi)osed  position  to  throw  a  ground 
switch,  which  was  required,  instead  of  an 
upright  one,  because  of  the  nearness  of  the 
tracks.  The  reference  in  this  connection  to 
the  necessity  of  a  great  number  of  tracks 
and  switches  close  to  one  another  cannot 
properly  be  applied  to  the  sections  of  paral- 
lel trades  existing  between  the  diverging  and 
approaching  sections  connected  with  the 
switches.  If  there  was  a  necessity  for  the 
proximity  of  these  tracks  which  oonld  af- 
ford a  basis  for  the  claim  that  the  risk  of 
such  a  collision  as  occurred  here  was  assum- 
ed by  the  plaintiff,  it  was  a  fact  for  the 
defendant  to  establish  by  evidence. 

[4-1]  The  inquiry  is  whether  the  evidence 
shows  a  case  for  the  plaintiff  under  the  fed- 
eral Employers'  Liability  Act  It  was  the 
duty  of  the  defendant  to  provide  such  tracks 
and  cars,  and  such  supervision  and  regulation 
of  their  use,  as  would  afford  the  plaintiff  a 
reasonably  safe  place  in  which  to  do  bis 
worlc  The  evidence  of  the  plaintiff  discloses 
a  negligence  in  this  respect  which  made  his 
place  of  work  unnecessarily  hazardous;  and 
this  negligence  is  chargeable  to  the  defendant, 
without  inquiring  as  to  the  officers,  agents, 
or  servants  by  whose  instructions  or  conduct 
the  dangerous  situation  was  created.  The 
situation  being  due  to  the  defendant's  neg- 
ligence, it  was  not  an  ordinary,  but  an  ex- 
traordinary, risk,  and  therefore  a  risk  not  as- 
sumed by  the  plaintiff,  unless  he  knew  and 
comprehended  it,  or  unless  it  was  so  obvious 
that  he  ought  to  have  known  and  compre- 
hended it  If  It  was  a  risk  of  which  the 
plaintiff  was  excusably  ignorant,  it  was  the 
duty  of  the  defendant  to  instruct  and  cau- 
tion him  regarding  it  There  was  evidence 
tending  to  show  that  the  risk  was  not  ob- 
vious, and  tbat  the  plaintiff  had  no  knowl- 
edge of  It,  and  that  no  instruction  or  cau- 
tion regarding  it  bad  been  given.  If  the 
plaintiff  himself  was  negligent  In  any  par- 
ticalar,  this  will  not  bar  his  recovery,  for 


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43 


It  cannot  be  said  that  Ms  negligence  was  the 
sole  canse  of  his  Injury. 

The  claim  that  there  was  no  evidence  tend- 
ing to  support  the  charge  of  negligence  as 
presented  in  any  single  count  is  sufficiently 
met  by  the  views  already  expressed.  See 
generally  Lynch  t.  Central  Vt  Ey.  Co.,  89 
Vt  363,  95  Atl.  683;  White  v.  Central  Vt 
By.  Co.,  87  Vt  330,  89  Atl.  618;  Central  Vt 
Ky.  Ca  V.  White.  238  U.  S.  607,  35  Sup.  Ct 
865,  59  I..  Ed.  1433,  Ann.  Cas.  1916B,  252; 
Carleton  v.  Fairbanks  Co.,  88  Vt  537,  93 
Atl.  462;  Morrlsette  v.  Canadian  Pac.  R. 
R.  Co.,  74  Vt  232,  62  Atl  620;  McDuffee  v. 
Boston  &  Maine  Rd.,  81  Vt  62,  68  Aa  124, 
130  Am.  St  Rep.  1019. 

Judgment  affirmed. 

(91  vt  M) 

COLLINS  et  aL  V.  CITY  OF  BARRB. 

(Supreme  Court  of  Vermont     Washington. 
May  1, 1917.) 

1.  Mttkicipai,  Cobpobations  «=»292(1),  293(4), 
— Stbeets— Chanoe  of  Gbadk — Xotick. 

Under  P.  S.  3878  providing  that  the  road- 
bed of  a  highway  Bhall  not  be  cut  down  or 
raised  more  than  3  feet  without  notice  having 
been  first  given  to  the  owners  of  the  time  and 
place  of  a  hearing  in  respect  thereto  and  sec- 
tion 3879,  providing  that  on  determination  that 
a  roadbed  snould  be  altered  by  lowering  or  rais- 
ing the  same  more  than  three  feet,  sucn  change 
may  be  ordered  and  the  damages,  if  any,  to 
the  owners,  be  determined  and  awarded,  street 
oommisaioners  were  without  jurisdiction  to  act 
on  the  question  of  raising  a  roadbed  more  than 
3  feet  where  the  petition  presented  to  them 
asked  merely  for  a  resurvey  and  a  relocation 
of  a  portion  of  the  street  and  the  notice  pub- 
lished and  given  to  abutting  landowners  of  a 
hearing  on  the  petition  did  not  show  that  any 
question  pertainmg  to  the  raising  of  the  road- 
bed was  to  be  considered  and  no  person  interest- 
ed in  the  property  was  present  on  the  hearing 
of  the  petition  or  consented  to  the  raising  of 
the  roadbed  or  waived  any  rights  relating 
diereto. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  g  776.] 

2.  Venoob  Ann  Pubchaseb  «=>229(8)— Con- 
STEUCTivB  Notice  —  Change  or  Gbaoe  of 
Stbeet. 

The  record  of  proceedings  of  street  commis- 
Bioner&  wherein  they  changed  the  grade  of  a 
street  by  raising  the  roadbed  more  than  3  feet 
was  not  constructive  notice  of  such  action  to 
a  snbseqnent  purchaser,  where  the  commission- 
ers were  without  jurisdiction  in  the  matter. 

[Sid.  Note.— For  other  cases,  see  Vendw  and 
Purchaser,  Cent  Dig.  |  488.] 

3.  MuNiciFAi.  Cobpobations  «=>404(1)  — 
Chanoe  of  Gbadb— Rioht  to  Reukf— Ade- 
quate Remedy  at  Law. 

Where  the  roadbed  of  a  street  is  raised  by 
the  street  commissioners  without  legal  authority, 
it  cannot  be  urged  against  a  bill  in  equity  for 
relief  that  there  was  au  adequate  remedy  at 
law, 

[Ed.  Note.— For  other  cases,  see  Mnnidpal 
Corporations,  Cent  Dig.  {  969.] 

4.  Equity  «=»219— Laches— Dbmubbkb. 

The  defense  of  laches  cannot  be  raised  by 
demurrer  to  a  bill  in  equity. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  H  496,  498-500.] 


Appeal  in  Chancery,  Washington  County; 
B.  L.  Waterman,  Chancellor. 

Snit  by  Kate  L.  Collins  and  others  against 
the  City  of  Barra  From  a  pro  forma  decree 
dismissing  the  bill  for  want  of  equity,  plain- 
tiffs appeal.    Reversed  and  remanded. 

The  bill  In  this  case  was,  pro  forma,  held 
insufficient  on  demurrer,  and  dismissed  for 
want  of  equity.  The  cause  is  here  on  plain- 
tiffs' appeal.  The  facts  stated  below  appear 
from  the  allegations  in  the  bill. 

The  premises  in  question,  being  a  dwelling 
house  and  lot  situated  on  Warren  street  in 
the  city  of  Barre,  were  conveyed  to  the 
plaintiff  Kate  U  Collins  on  March  31,  1908, 
by  George  F.  Lackey  and  Nettie  E.  Lackey, 
Yfy  their  deed  of  that  date,  recorded  In  the 
land  records  of  the  dty  of  Barre.  The  plain- 
tiff O.  R.  Collins  is  the  husband  of  Kate  L. 
The  plaintiff  Capital  Savings  Bank  &  Tmst 
Company  holds  a  mortgage  on  the  premises, 
given  by  Kate  L.  and  her  husband,  on  May 
17,  1909,  which  Is  unpaid.  At  the  time  this 
mortgage  was  given  the  premises  were  worth 
$1,500  or  $1,600.  At  the  time  of  the  afore- 
mentioned conveyances,  the  grade  of  War- 
ren street  (which  was  in  front  of  and  the 
only  means  of  access  to  said  premises)  was 
about  on  a  level  with  the  bottom  of  the  un- 
derpinning resting  on  the  foundation  sup- 
porting the  dwelling  house.  Since  those 
conveyances  the  dty  has  raised  the  roadbed 
of  Warren  street  opposite  and  In  front  of 
these  premises,  so  that  the  street  as  now 
traveled  and  used  is  about  on  a  level  with 
the  eaves  of  the  dwelling  house,  or  about  12 
feet  above  the  street  as  it  was  traveled  and 
used  at  the  time  of  the  aforementioned  con- 
veyances. By  reason  of  this  change  in  the 
grade  of  the  street,  the  premises  have  been 
rendered  of  little  value,  being  worth  less 
than  $500. 

On  the  18th  day  of  July,  1908,  when  one 
Cora  B.  Churchill  and  her  husband,  C,  A. 
Churchill,  were  the  owners  of  the  premises 
in  question,  and  residents  of  the  city  of 
Barre,  a.  petition  signed  by  certain  landown- 
ers on  Warren  street  and  addressed  to  the 
board  of  street  commissioners,  dty  of  Barre. 
was  presented  to  the  city  coundl,  requesting 
a  resurvey  and  a  relocation  of  the  south- 
easterly end  of  Warren  street  for  about 
285  feet  representing  that  the  public  good 
and  the  convenience  and  necessity  of  in- 
dividuals demanded  that  such  resurvey  and 
relocatlcm  should  be  made,  and  waiving  all 
claims  for  damages  which  the  petitioners 
might  be,  by  law,  entitled  to  receive.  This 
petition  was  referred  by  the  dty  council  to 
the  board  of  street  commissioners,  with  In- 
structions to  have  said  portions  of  Warren 
street  resnrveyed  and  relocated  in  accord- 
ance with  the  petition  if  the  same  could  be 
done  without  expense  to  the  dty.  On  July 
24th  the  street  commissioners  Issued  a  notice, 
stating  that  such  a  petition  had  been  pre- 


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aented  to  them,  "asking  that  the  easterly 
end  of  V\"arren  street  for  about  200  feet 
should  be  resurveyed  and  relocated,"  and 
further  stating  that  the  dty  council  had,  by 
vote,  decided  "that  said  portions  of  said 
street  should  be  resurveyed  and  relocated 
if  In  the  Judgment  of  said  commissioners 
after  a  public  hearing  It  should  appear  that 
the  pubUc  good  and  convenience  and  neces- 
sity demand  that  said  resurvey  and  reloca- 
tion should  be  made,  and  if  said  relocation 
can  be  made  without  expense  to  the  said 
city."  The  notice  then  stated  the  time  when, 
and  the  place  where,  the  street  commission- 
ers 'would  bear  "all  those  interested  in  said 
resurvey  and  relocation  of  said  portion  of 
Warren  street,"  eta  This  notice  was  pub- 
lished in  the  Barre  Daily  Times,  and  a  type- 
written copy  thereof  was  served  on  the  dty 
attorney  and  on  Mrs.  C.  A.  C?harchlll  and 
Mrs.  H.  M.  Dillingham  personally,  and  on 
O.  A.  Churchill,  James  Balgries,  and  F.  N. 
Braley,  by  leaving  copy  at  residence.  The 
record  of  the  report  of  the  proceedings  upon 
the  petition  (set  forth  in  the  bill)  states  that 
the  commissioners  met  at  the  time  and  place 
set  forth  in  the  notice,  "and  did  hear  all 
those  who  were  present,  and  who  were  In- 
terested In  the  resurvey  and  relocation  of 
said  portion  of  said  street,"  and  viewed  the 
premises;  and  "thereafter  adjudged  that 
the  public  good  and  the  convenience  and  ne- 
cessity of  Individuals  did  demand  that  said 
street  should  be  resurveyed  and  relocated  ac- 
cording to  plans  which  accompany  the  re- 
port and  which  have  been  prepared  by"  the 
dty  engineer,  bearing  date  of  December  2, 
1903,  "now  on  file  in  the  office  of  said  en- 
gineer." The  r^>ort  then  proceeds  as  fol- 
lows: 

"We  have  also  established  the  grade  of  said 
portion  of  said  street  as  shown  on  plans  which 
accompany  the  report,  and  which  bear  dote  of 
December  8d  and  which  were  prepared  by  aaid 
city  engineer." 

The  report  also  states  that  the  commission- 
ers have  awarded  no  one  any  damages,  as 
no  one  claimed  damage,  and  that  In  their 
"Judgment  all  received  benefits  equal  to  any 
damage  which  they  received  by  reason  of 
said  resurvey  and  relocation  and  grade  es- 
tablished." This  report  was  dated  December 
8,  1903,  signed  by  the  street  commissioners, 
and  received  for  record  in  the  city  clerk's 
office  on  the  same  day. 

Neither  Cora  E.  Churchill  nor  her  hus- 
band was  present  at  the  hearing  ha'd  pur- 
suant to  the  aforementioned  notice,  and  they 
never  had  any  notice  from  the  dty  council, 
the  street  commissioners,  or  any  other  dty 
official  that  any  change  In  the  grade  of  War- 
ren street  In  front  of  their  said  premises 
was  contemplated  or  for  consideration.  Nei- 
ther the  Churchllls  nor  any  other  of  the 
plaintiffs'  predecessors  In  title  were  ever 
notified  of  any  time  when  the  dty  council  or 
any  other  officials  of  the  city  would  hear  the 
owner  or  owuen  of  the  premises  now  owned 


by  the  plaintUfs,  npon  the  question  of  mak- 
ing any  alteration  or  diange  in  the  grade  of 
Warren  street  In  front  of  the  same  and  in 
front  of  the  dwelling  house  thereon,  and  none 
of  them  ever  attended  any  hearing  upon  the 
question  of  'damages  occasioned  by  reason  of 
any  such  alteration  or  change  of  grade.  The 
plaintiffs  aver  that  the  action  of  the  dty 
council  and  street  commissioners.  In  so  far 
as  It  pertained  to  an  alteration  or  change  of 
grade  of  Warren  street  In  front  of  the  dwel- 
ling house  mentioned,  was  without  legal  au- 
thority or  Justification,  and  was  of  no  legal 
effect  so  far  as  those  premises  are  ctmcemed. 

No  change  was  made  in  the  grade  of  that 
street  in  front  of  the  premises  In  question 
after  the  proceedings  upon  the  petition  In 
1908,  until  after  the  plaintiff  Kate  U  Col- 
lins had  becmne  the  owner  of  said  premises; 
but  slnoe  that  time  the  roadbed  of  that  street 
in  front  of  the  dwelling  house  on  the  plain- 
tiffs' premises  has  been  raised  more  than  3 
feet  by  the  dty,  there  being  a  continuous  de- 
positing of  earth  and  stone  there,  covering  a 
period  of  2  or  3  years,  which  had  the  effect 
of  raising  the  roadbed  at  that  point  about  12 
feet.  All  this  was  done  by  the  dty  without 
any  notice  to,  or  i>ermlsslon  of,  the  plaintiffs, 
and  the  latter  have  never  been  tendered  any 
damages  caused  thereby.  The  plaintiffs' 
premises  have  been  damaged  by  this  alleged 
unlawful  action  on  the  part  of  the  dty  to  an 
amount  exceeding  $1,000,  the  house  thereon 
being  rendered  uninhabitable;  and  the  pres- 
ent condition  of  Warren  street  in  this  respect 
constitutes  a  continuing  Injury  to  the  plain- 
tiffs, and  an  unwarranted  and  unlawful  act 
by  the  dty.  The  plaintiffs  further  aver  that 
the  action  of  the  city  In  raising  the  roadbed 
In  front  of  their  premises  in  the  way  and 
manner  described  was  an  invasion  of  their 
constitutional  rights,  In  that  It  deprived  them 
of  their  property  without  due  process  of  law. 

Argued  before  MUNSON,  O.  J.,  and  WAT- 
SON, HASELTON,  POWE3BS,  and  tTAY- 
LOR,  JJ. 

Frank  J.  Marshall,  of  Montpeller,  for  ap> 
pellants.  Edward  H.  Deavltt,  of  Montpeller, 
for  appellant  Capital  Savings  Bank  &  Trust 
Co.    William  Wishart,  of  Barre,  for  appdlee. 

WATSON,  J.  [1]  Section  3878  of  the  Pub- 
lic Statutes  provides: 

"A  selectman  or  road  commissioner  shall  not 
alter  a  highway,  by  cutting  down  or  raising  the 
roadbed  in  front  of  a  dwelling  house  or  other 
building  standing  upon  the  line  of  such  high- 
way, more  than  three  feet,  without  first  giving 
notice  to  the  owners  thereof,  of  a  time  when 
the  selectmen  will  examine  the  premises,  hear 
them  upon  the  question  of  making  such  altera- 
tion and  damages  by  reason  of  such  alteration ; 
at  which  time,  the  selectmen  shall  attend  and 
hear  said  owners,  if  they  desire  to  be  heard." 

By  section  3879,  if  it  shall  be  determined 
that  the  public  good,  or  the  necessity  or  con- 
venience of  individuals  requires  that  such 
roadbed  be  altered  by  lowering  or  ralsiug 
the  same  more  than  8  feet,  such  change  may 


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HOWE  T.  CENTRAL  VERMONT  RT.  CO. 


45 


be  ordered,  and  tbe  damages,  If  an^,  to  the 
owners  sbaU  be  determined  and  awarded. 
The  Interpretation  of  the  law  of  these  sec- 
tions was  before  this  court  in  Fairbanks  t« 
Rockingham,  75  Vt  221,  R4  AtL  186,  and  it 
was  there  held  that  an  alteration  In  the  road- 
bed In  the  sense  of  the  statute  begins  when 
the  lowering  or  raising  of  the  roadbed  ex- 
ceeds 3  feet;  that  a  change  in  this  respect 
of  not  more  than  3  feet  Is  regarded  by  the 
statute  as  in  the  nature  of  ordinary  repairs, 
and  not  as  an  alteration  of  tbe  highway^ 
So  the  case  before  us  rests  upon  the  allega- 
tions showing  the  raising  of  the  roadbed  In 
question  to  the  extent  of  about  9  feet  In  ex- 
cess of  that  considered  as  of  ordinary  re- 
pairs. Such  an  alteration  was  not  within  the 
scope  of  the  petition  to  the  street  commis- 
sioners, asking  for  a  resurvey  and  a  reloca- 
tion of  that  portion  of  Warren  street,  nor 
did  the  notice  published  and  given  to  abut- 
ting landowners  of  a  bearing  on  the  petition 
show  that  any  question  pertaining  to  tbe  rais- 
ing of  the  roadbed  was  inrolved  or  to  be  con- 
sidered. The  matter  of  grade  is  not  mention- 
ed In  the  record  of  those  proceedings  until 
that  part  of  the  report  of  the  street  com- 
missioners which  shows  tbelr  doings  and 
condusions  reached.  No  one  interested  in  the 
property  here  In  question  was  present  at  the 
bearing  had  on  the  petition,  nor  consented 
to  raising  the  roadbed,  nor  waived  any  rights 
relating  thereto.  On  the  question  of  making 
such  alteration,  as  well  as  on  the  question 
ot  damages,  the  owner  of  the  property  in 
question  was  entitled  to  notice  and  an  op- 
portimlty  to  be  heard.  This  was  required  by 
tbe  statute,  and  was  essential  to  the  Jurisdic- 
tion of  the  street  commissioners  of  the  sub- 
ject-matter of  those  questions.  Without  com- 
pliance with  the  statute  in  this  regard,  the 
commissioners  were  without  Jurisdiction  to 
act  on  any  question  of  raising  the  roadbed 
more  than  3  feet,  and  their  actions  in  this 
respect  were  void  so  far  as  tbe  owners  of  the 
property  In  question  are  concerned.  La  Far- 
rier V.  Hardy,  66  Vt.  200,  28  AtL  1030;  Lynch 
V.  Rutland,  66  Vt  570,  29  Atl.  1015 ;  Barber 
T.  Vinton.  82  Vt  327,  73  AtL  881 ;  Wheeler  v. 
St  Johnsbury,  87  Vt  46,  87  AtL  349. 

[2]  It  is  urged  that  at  the  time  of  tbe  pur- 
chase by  Mrs.  Collins  of  the  premises  In 
question  she  knew,  or  should  have  known, 
that  the  records  of  Warren  street  then  on 
file  In  tbe  city  clerk's  office  provided  for  the 
grade  that  was  subsequently  established.  No 
notice  of  this  kind  in  fact  is  shown;  and 
since  the  action  of  the  street  commissioners 
In  establishing  a  grade  of  more  than  3  feet 
raise  of  the  roadbed  was  without  Jurisdic- 
tion of  the  subject-matter,  as  against  the 
owners  of  the  property  in  question,  the  rec- 
ord of  the  doings  of  the  commissioners  In 
this  respect  was  not  constructive  notice  to 
Mrs.  Collins  when  she  took  the  property  by 
purchase. 


[S]  It  is  further  urged  that  the  plaintiffs 
have  an  adequate  remedy  at  law,  and  there- 
fore this  bill  In  equity  will  not  lie.  But  the 
case  of  Wheeler  v.  St  Johnsbury,  cited  above, 
is  full  authority  to  the  contrary.  There,  in 
a  case  sufficiently  like  the  one  at  bar  as  to 
equity  Jurisdiction  to  make  It  controlling 
here,  it  was  held  that  equity  bad  Jurisdic- 
tion on  two  grounds,  namely,  for  want  of  an 
adequate  remedy  at  law,  and  the  prevention 
of  a  multiplicity  of  suits. 

[4]  And,  finally.  It  is  said  that  the  plain- 
tiffs are  guilty  of  laches  even  if  they  were 
ever  entitled  to  damages.  But  this  defense 
cannot  be  raised  by  demurrer.  Drake  v. 
Wild,  65  Vt  611,  27  Atl.  427;  Gleason  v. 
Carpenter,  74  Vt  899,  62  AU.  966;  Wllder's 
Ex'r  v.  Wilder,  82  Vt  123,  72  AtL  203. 

Pro  forma  decree  reversed,  bill  adjudged 
sufficient  and  cause  remanded.  ' 


(n  vt  my 

HOWE  T.  CENTRAL  VERMONT  RY.   CO. 

(Supreme  Court  of  Vermont    Windham.    May 
24,  1917.) 

1.  Railboads  €=9314— Cbobsinq  Accidents- 
Condition  or  Right  or  Wat. 

P.  S.  4478,  provides  that  every  railroad  cor- 
poration in  the  state  shall  cause  all  trees,  shrubs, 
and  bushes  to  be  cat  within  tbe  surveyed  bound- 
aries of  their  lots  for  a  distance  of  80  rods  in 
each  direction  from  all  public  grade  crossings. 
Section  4479  provides  that  on  neglect  so  to  do, 
after  60  days  notice  in  writing,  tlie  selectmen 
of  tbe  town  shall  cause  the  same  to  be  cut  each 
year,  and  the  railroad  shall  be  liable  for  all 
damages  occasioned  thereby.  Held,  that  no  ac- 
tion for  personal  injuries  can  be  maintained  on 
the  basis  of  such  failure  to  clear  the  right  of 
way  in  the  absence  of  the  written  notice  by  the 
selectmen. 

[Ed.   Note.— For  other  cases,  see  Railroads, 
Cent.  Dig.  S  965.] 

2.  Railroads  «=>348(4)— Cbobsino  Accidents 

— SlONALS. 

In  an  action  for  personal  injuries  incurred 
in  a  collision  between  a  locomotive  and  the  au- 
tomobile in  which  plaintiff  was  riding  at  a  rail- 
road crossing,  evidence  held  to  sustain  a  finding 
that  the  locomotive  whistle  was  blown  at  a  dis- 
tance of  SO  rods  from  the  crossing. 

[Kd.   Note.— For  other  cases,  see  Railroads, 
Cent.  Dig.  if  1141,  1142.] 

8.  RArLKOADs  ®=»350(7)  —  Raii-soad  Cboss- 
ING8— Signals — Question  of  Fact. 
Under  P.  S.  4431,  requiring  signals  at  a 
crossing,  and  section  4432,  providing  for  a  fine 
for  neglect  to  give  required  signals,  the  question 
as  to  tbe  company's  liability  for  an  injury  caus- 
ed by  failure  to  give  signals  is  for  the  jury  upon 
evidence  as  to  whether  the  omission  to  give  the 
signal  was  reasonable  and  prudent. 

[Ed.   Note. — For  other   cases,   see   Railroads, 
Cent  Dig.  {  1161.] 

4.  Neouokncb  «=>93(3)  —  Ikputkd  Nequ- 

OENCE. 

Where  a  child  about  2%  years  old  was  in- 
jured in  an  automobile  driven  by  her  grandpar- 
ents, in  a  collision  on  a  railroad  crossing,  the 
contributory  negligence  of  the  grandparents 
could  not  prevent  a  recovery  if  defendant  rail- 
road company  was  gnilty  of  negligence. 

[Ed.  Note.— For  other  cases,  see  Negligence, 
Cent  Dig.  g  150.] 


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101  ATLANTIC  REPOBTBR 


(Vt 


5.  NsoLiamroB  4s>83(S)  —  Iupttted  Keou- 

OBNCK. 

Where  a  child  taken  for  a  ride  by  her  par- 
ents in  an  automobile  was  injured  in  a  collision 
at  a  railroad  crossing,  recovery  could  not  be 
denied  on  the  ground  that  plaintiff  was  engaged 
in  a  common  enterprise  with  the  others  in  the 
car,  and  that  their  negligence  was  imputable 
to  her. 

[EM.  Note.— For  other  casee,  see  Negligence, 
Cent  Dig.  {  160.] 

£>xceptlons  from  Windham  County  CoTirt; 
Wlllard  W.  Miles,  Judge. 

Action  by  Marion  Howe  against  tbe  Cen- 
tral Vermont  Railway  Company.  Verdict  for 
plaintiff,  and  defendant  excepts.  Reversed 
and  remanded. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASELffON,  POWiKS,  and  TAY- 
LOR, JJ. 

(Herbert  G.  Barber  and  F.  B.  Barber,  both 
of  Brattleboto,  for  plaintiff.  J.  W.  Redmond, 
of  Newport,  and  Cliarles  F.  Black,  of  St  Al- 
bans, for  defendant 

WATSON,  J.  In  tUs  action  the  plaintiff 
sues  by  her  next  friend  to  recover  for  Inju- 
ries received  by  her  on  September  10,  1915, 
at  the  defendant's  grade  crossing  known  as 
"Parks  Siding,"  In  tbe  town  of  Townshend, 
this  state,  by  reostm  of  the  defendant's  loco- 
motive colliding  with  thel  automobile  tn 
wlilch  she  was  riding.  The  automobile  came 
upon  the  crossing  from  :the  east,  going 
towards  the  west.  Tbfi  plaintiff  was  then 
two  years  and  seven  months  of  age,  and  lived 
with  her  parents  In  the  town  of  Newfane, 
Hbout  two  miles  from  tbe  home  of  her  grand- 
oarents,  Herbert  Q.  Howe  and  his  wife,  Nora 
L.  Howe,  who  lived  In  the  town  of  Brookllne. 
On  the  morning  in  question,  pursuajit  to  an 
arrangement  previously  made  between  the 
grandfather  and  the  plaintiff's  parents,  the 
plaintiff  went  with  her  parents  to  the  house 
of  her  grandfather  to  go  to  the  Londonderry 
fair  In  the  tatter's  automobile.  The  party, 
consisting  of  the  grandfather,  the  grandmoth- 
er, their  son,  Glen  Howe,  the  plaintiff,  her 
father,  and  her  mother,  started  In  the  auto- 
mobile at  7  o'clock  and  20  minutes  for  Lon- 
donderry. The  grandfather  was  the  driver 
of  the  car,  and  with  him  sat  Glen.  The 
grandmother  was  seated  on  the  extreme  right 
of  the  rear  seat,  holding  the  plaintiff  In  her 
lap.  The  plaintiff's  mother  and  her  father  sat 
at  tbe  left  of  the  grandmother.  In  the  order 
named.  Seven  miles  from  the  place  of  start- 
ing was  the  crossing  In  question,  with  whl<di 
the  plalntifTs  grandfather  and  her  father 
were  well  acquainted,  and  had  often  been 
over  It  In  both  directions  In  an  automobile. 
They  both  knew  tbe  time  the  morning  train 
from  Londonderry  was  due  at  the  crossing, 
and  understood  it  was  due  to  leave  West 
Townshend,  about  2  miles  north  of  the  cross- 
ing, at  7:45  a.  m.  The  accident  occurred  a 
lltUe  before  8  o'clock.  The  driver  threw  the 
car  Into  low  gear  about  opposite  the  crossing 


signal  post  which  was  about  50  or  60  feet 
from  the  last  rail,  and  kept  it  in  low  gear 
thereafter.  While  the  car  was  In  low  gear. 
It  proceeded  at  a  speed  of  not  more  than  4 
to  6  miles  an  hour,  with  no  attempt  to  In- 
crease tbe  speed  before  it  was  struck  by  the 
locomotive.  When  the  car  was  almost  over 
the  crossing.  It  was  struck  by  the  west  end 
of  the  breast  beam  of  the  locomotive  six 
Inches  from  the  rear  of  the  body  of  the  car, 
throwing  the  occupants  out,  iitjuring  the 
plaintiff  and  wrecking  the  car. 

The  declaration  states  two  grounds  of  neg- 
ligence upon  which  the  action  Is  founded:  (1) 
That  the  defendant  did  not  give  the  required 
warning  signal  when  its  train  was  approach- 
ing tbe  crossing  In  question  either  by  ring- 
ing the  bell  or  sounding  the  whistle ;  and  (2) 
that  defendant  allowed  trees,  shrubs,  and 
bushes  to  grow  and  remain  within  the  bound- 
aries of  Its  right  of  way  within  a  distance  of 
80  rods  In  each  direction  from  said  crossing, 
the  plaintiffs  view,  as  tbe  automobile  neared 
tbe  crossing,  being  thereby  obstructed. 

At  the  close  of  the  evidence  the  defendant 
moved  for  a  directed  verdict  on  several 
grounds  which  may  be  condensed  and  ade- 
quately stated  for  the  purposes  of  the  case, 
as  follows:  (1)  There  la  no  evidence  in  the 
ease  tending  to  show  any  negligence  on  the 
part  of  the  defendant  that  was  the  proxi- 
mate cause  of  the  Injury ;  (2)  on  all  the  evi- 
dence, the  proximate  cause  of  the  Injury 
complained  of  was  the  negligence  of  the  driv- 
er of  the  automobile,  or  of  the  father  of  the 
plaintiff,  or  of  the  mother  of  the  plaintiff,  or 
of  some  or  all  of  them;  (3)  on  all  the  evi- 
dence, the  driver  of  the  automobile  and  tbe 
father  of  the  plaintiff  were  jointly  or  sever- 
ally guilty  of  contributory  negligence,  which 
contributory  negligence  is  Imputable  to  the 
plaintiff;  (4)  on  all  tbe  evidence,  the  occu- 
pants of  the  automobile  were  engaged  in  a 
common  enterprise,  and  therefore  the  con- 
tributory negligence  of  the  driver  Is  Imputa- 
ble to  the  plaintiff;  and  (5)  there  is  no  evi- 
dence tending  to  show  any  actionable  negli- 
gence on  the  part  of  the  defendant  because  of 
the  growth  of  shrubbery  or  trees  upon  its 
right  of  way.  To  the  overruling  of  the  mo- 
tion defendant  excepted. 

[1  ]  The  action,  aa  to  the  second  ground  of 
negligence  stated  above,  was  treated  by  the 
court  and  by  counsel  on  both  sides  through- 
out the  trial  below,  as  based  upon  section 
4478  of  the  Public  Statutes,  which  reads: 

"A  person  or  corporation  operating  a  railroad 
in  this  state  shall  cause  all  trees,  shrubs  and 
bushes  to  be  cut  within  the  surveyed  boundaries 
of  their  lands,  for  a  distance  of  eighty  rods  in 
each  direction  from  all  public  grade  crossings." 

By  section  4479: 

"If  said  person  or  corporation  neglects  or  re- 
fuses to  remove  the  trees,  shrubs  and  bushes^  as 
required  by  the  preceding  section,  after  sixty 
days'  notice  in  writing,  given  by  the  selectmen 
of  the  town  in  which  such  trees,  shrubs  and 
bushes  are  located,  and  cause  the  same  to  be  cut 


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in  the  month  of  October  each  year  thereafter, 
said  person  or  corporation  shall  be  liable  for  all 
damages  occasioned  thereby." 

The  law  of  these  two  sections  was  einacted 
in  sections  1  and  2  of  No.  93,  Acts  of  1904, 
and  related  to  the  same  subject-matter.  It  Is 
a  prerequisite  to  liability  under  it  that  no- 
tice be  given  as  specified  In  section  4479. 
The  evidence  did  not  show,  and  it  Is  not 
claimed,  that  any  such  notice  was  ever  given 
to  the  defendant  Therefore  the  action  can- 
not be  maintained  on  the  basia  of  such  statu- 
tory negligence.  Although  this  Is  not  deter- 
minative of  the  motion  for  a  directed  verdict, 
there  being  questions  to  be  considered  there- 
on In  connection  with  the  other  alleged 
ground  of  defendant's  negligence,  yet  it  fol- 
lows that  the  exceptions  to  the  submission  to 
the  Jury  of  the  question  of  defendant's  lia- 
bility for  failure  to  keep  the  shrubbery  cut 
within  the  limits  of  its  roadway  must  be  sus- 
tailed,  as  must  also  the  exception  to  the  ren- 
dering of  Judgment  against  the  defendant  on 
the  special  finding  of  the  Jury  that  the  shrub- 
bery in  said  roadway  was  tlie  proximate 
cause  of  the  injnry. 

[2]  There  was  the  negative  testimony  of 
several  of  plaintiff's  witnesses  to  the  effect 
that  they  did  not  hear  any  beli  ring  nor 
whistle  blow  before  the  accident;  while  the 
testimony  of  other  witnesses  was  that  they 
heard  the  whistle  blow  baclc  some  distance 
from  the  crossing  in  question,  which,  fairly 
construed,  may  be  said  to  warrant  a  finding 
ttiat  the  whistle  was  blown  in  the  vicinity 
of  80  rods  bade  from  the  crossing.  There 
was  no  evidence  that  the  bell  was  rung  at 
that  place  or  between  there  and  the  crossing. 
For  the:  purposes  of  the  case  on  the  motion 
for  a  verdict,  we  consider  the  evidence  as 
showing  that  the  bell  was  not  rung  at  all 
when  the  train  was  approaching  the  crossing, 
and  that  the  whistle  was  blown  80  rods  from 
the  crossing,  but  not  afterwards  and  before 
the  accident. 

[3]  It  is  said  on  the  part  of  the  defendant 
that  thus  blowing  the  whistle  was  a  compli- 
ance with  the  provisicms  of  section  4431  of 
the  Public  Statutes,  requiring  signals  when  a 
train  Is  approaching  a  public  highway  cross- 
ing at  grade;  wliile  the  plaintlfT  contends 
that  tills  Is  not  so,  for  that  to  constitute  a 
compliance  with  the  statute  by  blowing  the 
whistle  the  blowing  must  begin  back  at  least 
80  rods  from  the  place  <rf  the  crossing  and 
continue  until  the  crossing  has  been  passed. 
The  statute  reads: 

"A  bcU  •  •  •  shall  be  placed  on  each  lo- 
comotive engine,  and  be  rung  at  the  distance  of 
at  least  eighty  rods  from  the  place  where  the 
railroad  crosses  a  road  or  street  at  grade,  and 
be  kept  ringing  until  it  has  crossed  such  road 
or  street;  or  the  steam  whistle  may  be  blown 
instead  of  ringing  such  bell." 

The  next  section  (4432)  provides  that,  if 
a  person  or  corporation  owning  or  operating 
a  railroad  unreasonably  neglects  or  refuses 
to  comply  with  the  foregoing  provisions,  it 
shall  be  fined,  etc.   The  law  of  these  sections 


was  first  enacted  In  1849,  and  has  hitherto 
remained  In  force  without  any  change  in 
words  or  substance  material  to  be  noticed 
here.  Its  construction  came  before  this  court 
as  early  as  1864,  dn  an  action  on  the  case 
for  damages  to  horses  and  harnesses  on  a 
public  highway  railroad  crossing.  It  was 
there  held,  in  effect,  that  the  two  sections 
should  be  construed  together;  that  by  the 
first  section  it  is  required  that  the  bell  shall 
be  rung  or  the  steam  whistle  blown  at  least 
80  rods  from  the  place  of  the  crossing  on 
the  same  grade,  and  that  'the  ringing  or 
blowing  shall  be  continued  until  the  engine 
shall  have  passed  such  crosaing" ;  that, 
though  In  that  section  the  requirement  is  af- 
firmative and  unconditional,  yet  by  the  law 
of  the  second  section,  if  any  railroad  cor- 
I)oratlon  shall  unreasonably  neglect  or  re- 
fuse to  comply  with  such  requisitions,  they 
shall  forfeit,  for  every  such  neglect  or  re- 
fusal, a  sum  not  exceeding,  etc.;  that  the 
fact  that  the  corporation  cannot  be  subject- 
ed to  the  penalty  unless  such  neglect  or  re- 
fusal be  shown  to  have  been  unreasonable 
clearly  Implies  that  in  the  contemplation  of 
the  law  there  may  be  cases  in  which  such 
neglect  or  refusal  would  be  reasonable,  and, 
if  reasonable,  the  penalty  would  not  be  in- 
curred; that  the  provision  of  the  first  sec- 
tion was  designed  to  operate  more  strin- 
gently than  the  common  law,  "and  while  it 
was  not  designed  to  subject  the  corporation 
to  dvU  liability,  entirely  regardless  of  the 
circumstances  and  occasion  of  the  omission 
to  ring  the  bell  or  blow  the  whistle  in  all 
cases  of  injury  caused  by  such  omission,  still 
it  was  designed  to  require,  as  the  general 
rule,  that  the  bell  should  be  rung  or  the 
whistle  blown  in  all  cases,  and,  in  case  of 
injury  by  reason  of  an  omission  so  to  do, 
to  Impose  the  burden  on  the  corporation  of 
showing  that  such  omlstdon,  la  the  exercise 
of  a  sound  Judgment  by  the  engineer,  in 
view  of  the  condition  of  things  as  they  ex- 
isted at  the  time,  was  reasonable  and  pru- 
dent; when  therefore.  In  a  case  like  the 
present,  the  plaintiff  should  show  that  the 
alleged  injury  was  caused  by  such  omission, 
it  would  not  be  necessary  to  his  right  of  re- 
covery that  he  should  take  the  burden  of 
showing  affirmatively  that  such  omission  was 
unreasonable  and  Imprudent,  but  it  would 
rest  upon  the  defendant,  as  a  matter  of  de- 
fense, to  show  that  it  was  reasonable  and 
prudent ;"  and  that  "the  liability  of  the  cor- 
poration should  be  left  to  stand  upon  this, 
viz.,  whether,  in  the  Judgment  of  the  Jury, 
upon  all  the  evidence,  the  omission  In  the 
given  case,  in  view  of  the  actual  condition 
of  things,  was  reasonable  and  prudent." 
Wakefield  v.  Conn.  &  Pass.  B.  B.  B.  Co.,  37 
Vt  330,  86  Am.  Dec.  711.  The  holdings  in 
that  case  have  stood  as  the  law  of  the  sub- 
ject for  more  than  half  a  century  without 
criticism;  and  upon  a  careful  examination 
of  the  statute.  In  view  of  the  arguments  of 
counsel  In  the  present  case^  we  see  no  rea- 


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101  ATLANTIC  REPORTEE 


(Vt 


son  for  doubting  the  aonndness  of  the  oon- 
clusions  there  reached,  or  of  their  control- 
ling effect  in  the  matter  before  vs.  The 
meaning  of  this  statute  being  by  Judicial 
construction  thus  made  clear  in  the  case 
noticed,  no  subsequent  practice  inconsistent 
with  that  meaning  can  have  any  ^ect. 
United  States  v.  Alger,  152  U.  S.  384,  14 
Sup.  Ct  635,  38  I*  Ed.  488;  Fairbanks  v. 
United  States,  181  U.  S.  283,  21  Sup.  Ct 
e48,  45  L.  Ed.  862.  The  above  holding  Is  de- 
terminative of  the  fact  that  the  case,  on  the 
question  of  defendant's  negligence  In  fall- 
ing to  give  the  required  warning  signal 
nrhen  the  train  was  approaching  the  cross- 
ing at  the  time  in  question,  was  for  the  Ju- 
ry; and  therefrom  It  is  evident  that  the 
plaintiff's  exception  to  the  part  of  the  charge 
pertaining  to  the  blowing  of  the  whistle,  on 
the  ground  that  the  Jury  should  have  been 
instructed  that,  if  the  bell  was  not  rung,  the 
whistle  should  have  been  blown  at  Intervals 
and  k^t  blowing  imfail  the  crossing  was 
passed,  was  well  taken.  It  is  not  claimed 
that  there  was  any  evidence  affirmatively 
tending  to  show  that  the  omission  so  to  do 
In  the  existing  circumstances  was  reasonable 
and  prudent,  a  question  on  which,  as  liefore 
seen,  the  burden  was  with  the  defendant 
Had  the  Jury  been  properly  instructed  In 
this  respect,  they  utight  not  have  fonnd,  as 
they  did  specially,  that  the  defendant's  neg- 
lect to  blow  the  whistle  or  ring  the  bell  was 
not  proximate  cause  of  the  plaintiff's  in- 
jury. 

[4]  The  question  of  contributory  negligence 
is  yet  to  be  considered  on  the  motion  for  a 
verdict,  if  it  Is  in  the  case.  The  plaintiff 
vres  of  such  tender  years  at  the  time  of  her 
injury  as  to  be  incapable  of  exercising  care. 
But  we  assume,  as  counsel  for  defendant 
argue,  that  her  grandfather  (driver  of  the 
automobile)  and  her  father  were  guilty  of 
negligence  contributing  to  the  accident.  The 
question  then  is:  Is  their  negligence  im- 
putable to  the  plaintiff?  In  Robinson  t. 
Cone,  22  Vt  213,  54  Am.  Dec.  67,  the  plain- 
tiff, a  child  three  years  and  nine  months 
old,  was  severely  injured  when  sliding  on 
a  sled  in  a  public  highway  by  being  caught 
by  one  of  the  runners  of  defendant's  loaded 
sleigh  drawn  by  two  horses.  The  plaintiff 
at  the  time  was  attending  school.  The  ques- 
tion of  contributory  negligence  by  the  plain- 
tiff was  raised  in  defense;  also  the  questlcm 
of  such  negligence  by  the  plaintiff's  parents 
in  allowing  him  to  attend  school  at  the  age 
and  in  the  manner  they  did.  The  court  said 
It  was  "satisfied  that,  although  a  diild,  or 
idiot  or  lunatic,  may,  to  some  extent  have 
escaped  into  the  highway  through  the  fault 
or  negligence  of  his  keeper,  and  so  be  im- 
properly there,  yet  if  he  is  hurt  l>y  the  neg- 
ligence of  the  defendant  he  is  not  preduded 
from  his  redress."  In  Ploof  v.  Burlington 
Traction  Co.,  70  Vt  609.  41  Atl.  1017,  43  L. 
R.  A.  109,  the  court  said  the  case  of  Robin- 


son V.  Cone  had  become  a  leading  case 
against  the  doctrine  of  imputed  negligence, 
and  Its  doctrine  was  quite  generally  follow- 
ed by  courts  of  last  resort  and  Indorsed  by 
eminent  writers,  and  that  this  court  was 
content  to  abide  by  the  decision  of  that  case 
on  the  doctrine  of  imputed  negligence.  The 
foregoing  is  the  established  doctrine  in  this 
state,  and  Is  known  in  some  other  Jurisdic- 
tions as  the  "Vermont  rule"  (distinguishing 
It  from  the  contrary  doctrine,  known  as  the 
"New  York  rule"),  and  It  Is  supported  by 
the  great  weight  of  authority. 

[E]  Nor  did  the  fact  that  the  p««(His  with 
whom  the  plaintiff  was  riding  in  the  automo- 
bile were  engaged  in  a  common  enterprise, 
make  any  difference  in  this  respect.  The 
theory  of  the  law  which  makes  each  of  per- 
sons engaged  in  a  common  purpose  at  the 
time  of  an  injury  suffered  by  him,  by  reason 
of  the  neglect  of  some  outside  person,  re- 
sponsible for  the  negligence  of  any  of  his  as- 
sociates, contributing  to  the  injury,  Is  that 
each  was  the  agent  of  the  others,  and  there- 
fore that  each  was  responsible  for  the  con- 
sequences resulting  from  the  acts  of  the 
others,  or  any  of  them.  Boyden  v.  Fitch- 
burg  Railroad  Co.,  72  Vt  89,  47  Atl.  409; 
Wentworth  v.  Waterbury,  00  Vt  60,  96  Atl. 
334.  Both  in  law  and  in  fact  the  plaintiff 
was  Incapable  of  entering  into  any  such  com- 
mon enterprise.  She  was  in  the  automolille 
because  her  father,  who  by  law  was  the 
custodian  of  her  person,  took  her  with  him. 
Yet  his  status  as  such  custodian  was  not  as 
agent  of  the  diild,  but  as  ag«it  of  the  law; 
and  he  oonld  not  surrender  or  impair  any 
property  right  that  was  vested  In  the  child, 
nor  impose  any  legal  burden  upon  It .  Fergu- 
son V.  Phoenix  Mut  Ufe  Ins.  Co.,  84  Vt 
350,  79  Atl.  997,  36  L.  R.  A.  (N.  S.)  844 ;  New- 
man V.  Phllllpsburgh  Horse  Car  R.  Co.,  62 
N.  J.  lAW,  446,  19  Atl.  1102,  8  I*  R.  A.  842. 
It  follows  that  the  relation  of  common  pur- 
pose, as  such,  of  the  persons  with  whom  the 
plaintiff  WHS  riding  at  the  time  of  her  in- 
jury does  not  affect  her  rights  against  the 
defendant.  This  being  so,  the  question  of 
the  ImpntablUty  of  the  oontrtbutory  negli- 
gence of  the  driver  or  of  the  plaintiff's  fa- 
ther is  In  any  aspect  of  the  case  reduced  to 
the  simple  form  in  which  it  haa  been  consid- 
ered and  ruled  above. 

The  question  of  contributory  negligence 
therefore  Is  not  in  the  case,  and  the  only 
question  is  whether  the  defendant  exercised 
the  degree  of  care  required  by  law.  The  mo- 
tion for  a  directed  verdict  was  properly  over- 
ruled. This  holding  shows  defendant's  excep- 
tions to  the  failure  of  the  court  to  charge 
as  requested  touching  the  question  of  con- 
tributory negligence  to  be  without,  merit 

Since  substantial  exceptions  of  both  par- 
ties are  sustained,  neither  party  should  be 
allowed  to  recover  costs  in  this  court 

Judgment  reversed,  and  cause  remanded, 
without  costs  to  either  party  In  this  court 


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N.  J^      NEW  YORK,  S.  A  W.  B.  OO.  y.  BOABD  OP  PUBLIC  TTTILITT  COM'RS 


49 


(M  N.  J.  lAW,  «90) 

IRESON  y.  OUNNINOHAM.     (Ma  2.) 

(Oourt  of  Errors  and  Appeals  of  New  Jersey. 
May   8,  1917.) 

1.  Mdnioipai.  Cobpobationb  «=705(4)— Au- 
tomobile   Accident  —  Driving    withoxjt 

IjIGHT. 

Where  the  driver  of  a  wagon  waa  without  a 
light  on  the  wagon  more  than  half  an  hour  after 
■unset,  in  violation  of  statute,  he  could  recover 
for  injuries  received  in  collision  with  an  auto- 
mobile if  the  driver  of  the  car  could  have  seen 
him,  since  if  the  automobile  driver  could  have 
seen  him,  his  unlawful  act  in  driving  without 
a  light  did  not  contribute  to  the  accident 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  H  1516,  1516.] 

2.  Municipal  Cobpobationb  <s=»706(7)— Au- 
tomobile Accident— Contbibutobt  Neou- 
osNCE— Question  fob  Jubt. 

In  an  action  against  an  automobile  driver 
for  injuries  to  the  driver  of  a  horse  and  wagon, 
where  the  facts  from  which  contributory  neg- 
ligence was  to  be  deduced  were  in  dispute,  it  was 
a  jury  question. 

[Ed.  Note.— For  other  cases,  see  SAinicipal 
Corporati(ui8,  Cent  Dig.  {  1518.] 

Appeal  from  Circuit  Court,  Cumberland 
County. 

Suit  by  0«orge  Ireeon  against  Oeorge  Cun- 
ningham. From  a  Judgment  for  plaintiff, 
defendant  appeals.   Affirmed. 

Henry  S.  Alvord,  of  Ylneland,  for  appellant 
8.  Webster  Hurd  and  Royal  P.  Toller,  both 
of  Ylneland,  for  appellee. 

PER  CnRIAM.  Plaintiff  brought  suit  to 
recover  damages  for  injuries  sustained  by 
reason  of  a  head-on  collision,  in  a  public 
highway,  of  an  automobile  driven  by  the  de- 
fendant and  a  horse  and  wagon  driven  by  the 
plaintiff.  Hie  plaintiff  was  driving  his  vebi- 
de  without  a  light,  and  the  defendant  was 
driving  his  automobile  with  lights,  the  time 
being  7  p.  m.  of  March  19,  1914,  on  which 
day  the  sun  set  at  6:11  p.  m.  The  statute 
required  plaintiff  to  carry  a  ll^t  on  his 
wagon  from  one-half  hour  after  sunset  The 
Jury  returned  a  verdict  for  the  plaintiff.  The 
Judgment  entered  on  the  verdict  has  been 
brought  to  this  court  by  appeal.  The  ques- 
tions presented  by  the  grounds  of  appeal  are 
the  propriety  of  a  denial  of  mbtlons  to  non- 
suit and  to  direct  a  verdict  for  defendant, 
and  also  objections  to  the  diarge  of  the  trial 
Judge  In  certain  respects. 

Testimony  offered  by  the  plaintiff  estab- 
lished that  the  collision  occurred  in  a  road- 
way wide  enough  for  two  vehicles  to  pass, 
and  that  the  plaintiff  was  as  far  over  on 
the  right-hand  side  as  he  could  get  at  the 
time  he  was  run  into ;  that  as  the  automobile 
approached  it  wobbled  or  zigzagged  In  the 
road,  and  plaintiff  shouted  to  warn  the  driver 
of  his  presmee  before  the  horse  was  struck ; 
that  the  time  was  one-of  sufficient  light  to  see 
a  wagon  or  a  machine  several  hundred  feet 
away;  that  the  horse  of  the  plaintiff  had 
to  be  killed  as  a  result  of  the  injury ;    that 


the  wagon  was  somewhat  broken;  and  that 
plaintiff  suffered  injury. 

The  testimony  justified  the  Jury  in  believ- 
ing that  the  defendant,  in  violation  of  the  law 
of  the  road,  failed  to  turn  to  the  right  In  or- 
der to  allow  the  plaintiff  to  pass  him  when 
they  met  in  the  highway.  And  the  Jury  was 
Justified  in  believing  it  was  light  enough  for 
the  defendant  to  see  the  plaintiff,  and  that 
It  was  his  duty  to  turn  out  for  him;  and  if, 
on  the  contrary,  it  was  too  dark  for  him  to 
see,  they  could  find  that  It  was  hla  duty  to 
be  on  the  right-band  side  of  the  road  in  the 
direction  In  which  he  was  going,  so  as  not  to 
take  the  chance  of  running  into  any  one  ap- 
proaching him  from  the  opposite  direction. 

[1]  Although  the  plaintiff  was  driving 
without  a  Ugbt  on  his  wagon  In  violation 
of  the  statute,  that  fact  does  not  operate  to 
prevent  his  recovery  If  the  defendant  could 
see  him,  and,  if  he  could,  the  unlawful  act 
of  the  plaintiff  In  no  way  contributed  to  the 
accident.  The  testimoQy  was  certainly  sus- 
ceptible of  the  construction  that  the  defend- 
ant either  saw,  or  by  the  exercise  of  due  care 
could  have  seen,  the  plaintiff. 

[2]  The  defendant  urged  before  the  trial 
court,  and  argues  here,  that  the  plaintiff  was 
guilty  of  contributory  negligence.  If  con- 
tributory negligence  was  present  in  the  case, 
the  tacts  from  which  it  was  to  be  deduced 
were  in  dispute,  and  It  was  therefore  a  Jiury, 
and  not  a  court,  question.  The  defendant  ex- 
cepted to  the  charge  of  the  court  In  several 
respects,  but  argues  them  very  meagerly  and 
without  citation  of  any  authority.  We  have 
examined  them,  and  find  they  are  entirely 
without  substance. 

The  judgment  will  be  affirmed,  with  costs. 

(W  N.  J.  Law.  431) 
NEW  XORK,  S.  &  W.  R.  CO.  r.  BOARD  OF 
PUBLIC  UTILITZ  COM'RS  et  aL 

(Supreme  Court  of  New  Jersey.    June  6,  1917.) 

1.  Dedication  «=»19(1)  —  Promise  to  Dedi- 
cate. 

A  dedication  of  a  street  is  not  shown  by  a 
map  showing  such  a  street  and  containing  a 
declaration  by  the  owner's  husband  that,  if  he 
ever  opens  the  street,  the  opening  will  OMiform 
to  the  map,  because  it  is  more  promise  to  dedi- 
cate, not  made  by  tlie  owner. 

[Sid.  Note.— For  other  cases,  see  Dedication, 
Cent  Dig.  i  37.] 

2.  Public  Seevioe  CoMMissioNa  «=>6— Pub- 
uo  Utilitt  Commissionebs— Jubisdiotion 
OF— Powers. 

The  board  of  public  utility  commissioners 
has  no  jurisdiction  to  determine  whether  the  lo- 
cation of  buildings  along  the  lines  of  a  street 
as  actually  used  and  the  practical  use  of  a  street 
ns  such  justify  an  inference  that  continued  use 
has  accorded  it  the  status  of  a  public  highway. 

3.  Railroads  9=394(2)— Grade  Crossings  — 

Public  Convenienoe. 

Under  tho  statute,  an  order  of  the  board  of 
public  utility  commissioners,  compelling  a  rail- 
road to  construct  a  crossing  at  grade  over  its 
right  of  way,  is  erroneous,  where  it  would  re- 
sult in  increasing  the  hazards  of  the  public  in 


esifoT  otber  eases  ■••  same  topte  and  KBT-NUUBBR  In  all  Key-Numberad  Dignu  and  ladezM 
101A.-4 


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101  ATLANTIC  REPORTBR 


(N.J. 


the  use  of  tlie  streets  In  question,  and  its  con' 
vonience  can  be  served  b7  slightly  changing  the 
lines  of  the  streets. 

[Ed.  Note.— For  other  cases,  see  RaUroada, 
Cent  Dig.  §  266%.] 

Certiomrl  by  the  New  York,  Suaqueliaana 
&  Western  Railroad  Company  against  the 
Board  of  Public  TJtility  Commissioners  and 
the  City  of  Paterson  to  review  an  order  of 
the  Commissioners  relative  to  a  gi^de  cross- 
ing.   Order  vacated. 

Argued  l<'ebruary  term,  1917,  before 
SWAYZE,  MINTURN,  and  EAUSCH,  JJ. 

Coliins  &  Corbln,  of  Jersey  City,  for  pros- 
ecutor. Lw  Edward  Hermann,  of  Jersey 
City,  for  commissioners.  Randal  B.  Lewis, 
of  Paterson,  for  city  of  Paterson. 

MINTURN,  J.  The  certiorari  In  this  case 
removes  an  order  made  by  the  board  of  pub- 
lic utility  commissioners,  granting  permis- 
sion to  the  city  of  Paterson  to  construct  a 
crossing  at  grade  over  the  railroad  right  of 
way  at  Seventeenth  avenue  and  Twenty- 
Fourth  street,  where  the  two  streets  come  to- 
gether. A  crossing  is  arranged  for  Seven- 
teenth avenue,  but  none  Is  arranged  for 
East  Twenty-Fourth  street,  and  the  proposal 
is  to  compel  such  construction  by  the  rail- 
road. 

[1]  The  railroad  contests  the  right  of 
the  city  to  require  it,  on  the  ground  that  the 
street  is  not  in  fact  a  public  highway.  It 
was  never  laid  out  as  such,  and  the  city  r&- 
lies  upon  a  map  made  in  1SC8  to  evidence  the 
dedication.  We  think  the  map  does  not 
show  a  dedication  of  the  locus  in  quo.  It 
contains  a  declaration  by  the  husband  of  the 
then  owner  that,  If  he  ever  opened  the 
streets,  the  opening  would  conform  to  the 
map.  This  lacks  the  essentials  of  a  legal 
dedication:  First,  l>ecause  It  is  not  made  by 
the  owner  of  the  locus;  and,  secondly,  be- 
cause at  most  It  is  but  a  promise  or  agree- 
ment to  dedicate  in  future. 

[2]  The  buildings  along  the  Unes  of  the 
street,  as  actually  used,  and  the  actual  prac- 
tical use  of  the  street  as  a  dirt  or  cinder 
road,  seems  to  be  shown;  and  that  fact 
'  would  Justify  an  Inference  that  continued 
use  has  accorded  to  it  the  status  of  a  public 
highway.  That  question,  however,  is  not  be- 
fore us  for  decision,  nor  was  it  a  subject  for 
the  determination  of  the  public  utility  com- 
missioners, under  the  legislation  prescribing 
th^r  powers. 

[3]  The  fact  Is  quite  apparent  that  in 
opening  up  these  two  streets,  as  proposed,  so 
that  the  railroad  may  cross  them  diagonally, 
A  crossing  involving  serious  danger  to  the 
public  will  be  thereby  created.  The  commis- 
sioners seem  to  have  dealt  with  the  situa- 
tion as  though  it  presented  a  question  of 
the  construction  of  appurtenances  to  the 
railroad.  Tlie  declared  object  of  the  statute 
is  to  protect  the  public  from  the  danger  Inci- 


dent to  grade  crossings,  and  the  Inquiry  be- 
fore the  commissioners  was  whether  such  a 
crossing  as  that  in  question  would  result  In 
increasing  the  danger  and  hazards  of  the 
public  in  the  use  of  it,  and,  if  it  would  In- 
crease the  public  dangers,  then  whether,  in 
view  of  the  situation  thus  presented,  it  was 
stiU  necessary  and  desirable  as  a  public 
crossing;  for  manifestly  a  public  crossing  at 
grade  might  be  highly  desirable  as  a  public 
convenience,  but  If  Its  existence  and  contin- 
ued use  might  serve  in  actual  jH-actlce  as  a 
standing  menace  to  the  lives  of  the  commu- 
nity, it  would  not  comport  with  a  proper  ex- 
ercise of  wisdom,  nor  accord  with  the  de- 
clared legislative  policy  and  intent,  to  au- 
thorize or  compel  such  construction. 

These  Important  considerations  seem  not 
to  have  been  discussed  or  determined  by  the 
board ;  and,  as  we  have  intimated,  they  pre- 
sent the  distinctive  and  vital  Inquiry  in  the 
case.  We  think  it  was  made  quite  clear  by 
the  railroad  that  the  difficulty  presented  here 
could  be  obviated  by  a  slight  change  in  the 
lines  of  the  streets,  at  the  comer  where  Sev- 
enteenth avenue  and  Twenty-Fourth  street  in- 
tersect; and  if  such  a  change  In  existing 
conditions  can  be  made  to  practically  serve 
the  public  use  and  convenience,  the  adoptiffli 
of  such  a  plan  would  seem  to  present  a  sat- 
isfactory substitute,  and  a  reasonable  solu- 
tion of  the  situation,  rather  than  a  proposed 
construction  which  is  menaced  with  the  very 
difficulties  and  dangers  which  it  is  the  avow- 
ed purpose  of  tills  legislation  to  eliminate^ 

We  think  the  testimony  before  the  board 
was  not  suffldMit,  nor  of  a  <^racter,  to  war- 
rant or  reasonably  supjitort  the  CDnclusl<m 
reached  by  the  board,  and  for  that  reason 
we  have  ccmduded  tiiat  the  permission  grant- 
ed should  be  vacated.  Erie  R.  R.  Ca  v. 
Board  of  Utility  Commlssionens,  dS  AtL  13; 
Potter  V.  Board  of  Public  Utility  Com'rs, 
08  AtL  30. 

(to  N.  J.  Law,  va) 
NELL  et  al  r.  GODSTRBY.    (No.  46.) 

(Court  of  Errors  and  Appeals  of  New  Jereej. 
.     May  8,  1917.) 

1.  Caksiers  «=»320(S1)  —  Oaskiaok  of  Pas- 

SEMOBBS— InJITKIES— JUBT  CASE. 

In  an  action  by  a  tazicab  passenger  for  in- 
juries, where  there  was  evidence  tending  to 
show  that  the  taxicab  belonged  to  defendant, 
and  that  the  chauffeur  was  his  agent  and  negli- 
gent, the  case  was  for  the  jury,  though  it  was 
claimed  by  defendant  that  the  chauffeur  exceed- 
ed his  authority  in  doing  what  he  did. 

2.  Appbai,  and  Erkob  Q=»119(>(1)— Dibxction 
OF  Vbbdict  at  Second  Tbial. 

Where  new  trial  is  granted  because  the 
verdict  is  against  the  weight  of  the  evidence, 
the  direction  of  verdict  at  second  trial  on  the 
same  or  similar  evidence,  where  a  substantial 
conflict  of  testimony  is  present,  is  not  justified ; 
conflicting  testimony  being  always  for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  <  4661.] 


tfcsPor  other  cases  sea  same  topio  and  KBT-NUHBEH  In  all  Kejr-Nuniberad  DlfMts  and  lodSMs 


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N.JJ 


MEIiL  ▼.  aODBTIUST 


61 


Appeal  from  Clicalt  Oonrt,  Bergen  Ooimty. 

Action  by  Harriet  Nell  and  another  a^lnst 
WlUlam  O.  Godstrey.  From,  a  Judgment  for 
defendant,  plaintiffs  appeal.  Reversed,  and 
venire  de  novo  awarded. 

Nathaniel  Kent,  of  Paterson,  and  Gilbert, 
Collins,  of  Jersey  City,  for  appellants.  Wen- 
dell J.  Wright,  of  Hackensack,  for  appellee. 


PER  OURIAH.  This  case  presents  an  ap- 
peal from  a  Judgment  entered  in  the  Bergen 
county  drcnit  court,  founded  upon  a  verdict 
for  the  defendant  directed  by  the  trial  Jndge, 
to  which  direction  exception  was  duly  taken. 

The  action  was  brought  by  Harriet  Nell 
and  her  husband,  John  J.  Nell,  for  Injuries  al- 
leged to  have  been  sustained  by  her  while  a 
pnssenger  In  a  taxlcab  said  to  have  been  own- 
ed by  the  defendant  and  operated  and  con- 
trolled by  his  agent. 

The  facts  relating  to  the  accident,  which 
was  the  subject-matter  of  the  suit,  were  sub- 
stantially as  follows:  The  plaintiff  Mrs.  Har- 
riet Nell  on  Saturday,  January  16,  1916,  and 
her  sister.  Miss  Josephine  McGlntee  went 
from  Bogota,  N.  J.,  where  Mrs.  Nell  lived,  to 
Hackensack  and  thence  to  New  Tork,  for 
the  purpose  of  doing  some  shopping  and  visit- 
ing the  family  of  one  of  her  husband's  em- 
ployes. They  left  the  home  of  the  persons 
■whom  they  were  visiting  at  about  1:30  Sun- 
day morning  to  catch  the  ferry  going  to  Edge- 
water,  N.  J.  They  missed  the  2  o'clock  boat, 
and  were  compelled  to  take  the  next  boat  at 
2.45  a.  m.  When  they  arrived  in  Edgewater 
they  found  that  there  would  be  no  car  leav- 
ing until  S  o'clock.  (Mrs.  Nell  telephoned  to 
her  husband,  and  he  Instructed  her  to  hire  a 
taxicab  to  take  them  home.  She  then  asked 
an  officer  to  get  her  a  taxicab,  and  he  said 
he  would.  Within  10  or  IS  minutes  there- 
after Patrick  Dowdell  came  with  a  taxicab 
from  the  Edgewater  Garage,  and  agreed  to 
take  them  to  Bogota  for  $3.  The  plaintiff 
0nd  her  sister  then  entered  the  taxicab  and 
were  driven  along  the  river  edge  for  about  16 
minutes  until  they  came  to  a  hill  called  the 
Ft.  Lee  Hill.  When  near  the  toQ  of  the  hiU 
tbe  car  stalled  and  commenced  coasting  back- 
wards whereupon  the  chaofleur  turned  his 
wheel  to  make  the  car  turn  sideways  towards 
tbe  curb,  and  thus  backed  the  car  up  against 
the  south  curb.  After  stopping  the  car  he 
turned  the  fnmt  wheels  facing  down  hill,  so 
as  to  aid  the  gasoline,  whidi  was  low,  to  run 
into  the  carbureter,  and  started  to  crank  the 
machine.  This  he  continued  dcdng  for  about 
10  or  12  minntes  when  Mrs.  Nell  opened  the 
window  and  asked  him  what  the  trouble  was, 
and  he  said  that  the  gasoline  had  run  low, 
and  that  the  radiator  was  hot.  While  trying 
to  crank  the  car  it  suddenly  started  down 
bill  with  no  one  at  tbe  wheel,  the  cdiauffeur 
trying  to  bold  it  back  with  his  bands  around 
tbe  radiator.  As  it  rapidly  increased  its 
speed,  the  chauffeur  called  to  the  plaintiff 


and  her  sister  to  Jump  for  their  lives.  After 
tbe  car  had  gone  some  considerable  distance, 
the  plaintiff  Jumped.  Her  head  struck  on 
the  street  and  she  was  rendered  unconscious, 
receiving  more  or  less  serious  injuries. 

At  the  conclusion  of  the  whole  case  a  mo- 
tlon  was  made  to  direct  a  verdict  for  the  de- 
fendant upon  several  grounds,  namely,  that 
no  negligence  had  been  proved  on  the  part 
of  tbe  defendant ;  that  the  negligence  sped- 
fled  In  the  complaint  had  not  been  proved; 
that  if  any  neglig^ice  at  all  appeared  in  tbe 
case,  it  was  not  that  of  the  defendant ;  that 
Dowdell  was  not  the  agent  of  the  defendant; 
that  under  the  evidence,  as  it  apx>eared,  Dow- 
dell was  acting  as  the  agent  of  tbe  plaintiff  v 
and  that  the  defendant,  Godstrey,  was  not 
the  owner  or  operator  of  the  car,  or  In  any 
circumstances,  under  the  evidence,  liable  for 
the  alleged  accident.  Whereupon  the  court 
made  the  following  observation: 

"The  point  tbat  has  been  troubling  me  bH 
through  the  case  is  the  question  as  to  whether 
this  driver  has  been  acting  within  the  scope  of 
bis  authority  in  such  a  manner  as  to  bind  the 
defendant.  That  is  tbe  situation  as  I  find  it 
now.  The  burden  of  proof  is  upon  the  plaintiff 
to  show  by  a  fair  preponderance  of  tbe  evidence 
that  the  driver  was  the  agent  of  the  defendant, 
and,  at  the  same  time,  the  act  performed  was 
within  the  scope  of  his  authority.  That  burden 
is  upon  the  plaintiff  to  prove.  That  is  without 
talcing  into  consideration  the  other  questions  in- 
volved, of  ownership  or  negligence.  If  that  is 
disposed  of  in  a  manner  negative  to  the  plain- 
tiff's case,  all  the  others  would  fall  with  it'* 

Then,  after  argument  by  counsel  for  plain- 
tiff, the  court  said,  "The  motion  to  direct  a 
verdict  will  be  granted,"  not  putting  the  de- 
cision upon  any  particular  ground.  The 
plaintiff  noted  an  exception. 

[1]  We  think  it  unnecessary  to  review  the 
testimony.  It  is  sufficient  to  say  that  we  are 
of  opinion  that  the  case  should  have  been 
submitted  to  the  jury,  as  there  was  evidence 
tending  to  show  that  the  taxicab  belonged  to 
the  defendant,  that  the  chauffeur,  Dowdell,. 
was  his  agent  and  that  he,  the  chauffeur,  was 
negligent.  It  was  claimed  on  behalf  of  the 
defendant  that  Dowdell  exceeded  his  author- 
ity as  an  employe.  If  he  did,  if  he  violated 
his  instructions,  bis  authority  and  instruc- 
tions were  not  known  to  the  plaintiff.  He 
was  apparently  the  agent  of  the  defendant 
with  authority  to  drive  his  taxicab  tor  hire. 

These  observations  dispose  of  the  grounds 
upon  which  the  motion  for  the  direction  of  a 
verdict  for  the  defendant  was  rested,  and  the 
point  suggested  by  the  trial  Judge. 

It  ought,  i)erhaps,  to  be  stated  that  in  the 
argument  on  the  motion  to  direct  a  verdict 
counsel  for  the  plaintiff  (citing,  but  not  quot- 
ing literally  from,  Bennett  v.  Busch,  75  N.  J. 
Law,  240,  67  Atl.  188)  said: 

"If  there  is  any  evidence  in  the  case  niwn 
any  proposition  upon  which  reasonable  men 
might  diifer,  or  any  honest  man  could  have  a 
difference  of  opinion  therefrom,  then  the  ele- 
ment must  be  submitted  to  the  jury." 


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101  ATIAMTIO  KEPOR'TER 


(M.J. 


To  which  the  judge  replied: 

"I  don't  think  so.  If  that  was  the  ease,  why, 
then,  we  have  nothing  in  the  rale  that  •  verdict 
is  against  the  weight  of  the  evidence." 

[2]  It  Is  obvious  that  the  trial  Judge  failed 
to  perceive  the  distinction  between  court 
questions  and  jury  questions  arising  from 
evidence.  In  cases  where  a  new  trial  Is 
granted  because  the  verdict  is  against  the 
weight  of  the  evidence,  the  direction  of  a 
verdict  at  a  second  trial  on  the  same  or  sim- 
ilar evidence,  where  a  substantial  conflict  of 
testimony  is  present,  is  not  Justified.  Con- 
flicting testimony  is  always  for  the  jury. 
Dickinson  v.  Erie  B.  R.  Ck>.,  85  N.  J.  Law,  586, 
90  AtL  305.  See,  also,  Tilt<Mi  v.  Penna.  R. 
R.  Co.,  86  N.  J.  Law,  709,  94  Atl.  804 ;  Keeney 
V.  I>.,  L.  &  W.  R.  R.  Co.,  87  N.  J.  Law,  505,  94 
AU.  604 ;  TonselUto  t.  N.  Y.  0.  &  H.  R.  R  R, 
Co.,  87  N.  J.  Lew,  651,  »4  Atl.  804;  McCoi^ 
mack  r.  WlUlams,  88  N.  J.  Law,  170,  05  Atl. 
978. 

The  judgment  under  review  will  be  revers- 
ed to  the  end  that  a  venire  de  novo  may  be 
awarded. 

<87  N.  J.  Elq.  807) 

In  re  ADRIAN  et  aL    (So.  867S.) 

(Prerogative  Court  of  New  Jersey.    Mardi  21, 
1917.) 

W^LLB    «=»684(3)  —  CONSTB0CTION  —  RbSIOUX 

— Income  fbom  Tbust  LBaAcns. 
Testator's  will  made  numerous  pecuniary  re- 
quests, some  outright,  and  others  to  his  execu- 
tors in  trust  for  various  henefidarios.  The  rest, 
residue,  and  remainder  of  his  estate  he  gave  to 
the  executors,  in  trust  to  pay  the  income  to  his 
widow  during  her  lifetime,  and  upon  her  do- 
cease  to  pay  the  income  to  his  children  until  a 
given  time,  when  the  principal  was  to  he  dis- 
tributed. Four  of  the  trust  legacies,  aggregat- 
ing $395,000,  were  for  the  benefit  of  nondepend- 
ents,  and  consequently  not  payable  for  a  year 
after  the  death  of  testator.  The  income  of  the 
estate  for  the  year  upon  a  sum  equal  to  these 
trust  funds  amounted  to  over  $16,000.  Held, 
that  the  income  passed  into  the  residue  as  prin- 
cipal, and  not  as  income. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  SS  1616-1618,  1020.] 

Appeal  from  Orphans'  Court,  Somerset 
County. 

In  Uie  matter  of  the  appeal  from  the  first 
Intermediate  account  of  Jennie  R  Adrian 
and  others,  surviving  trustees  under  the  will 
of  William  Rowland,  deceased.  Decree  af- 
firmed. 

August  C  Streitwolf,  of  New  Brunswick, 
for  appellant  Hugh  K.  Gaston,  of  Somer- 
ville,  and  John  R.  Uardlu,  of  Newark,  for 
respondents. 

BACHES,  Vice  Ordinary.  A  brief  state- 
ment will  develop  the  single  question  pre- 
sented for  decision.  William  Rowland  by 
his  will  made  numerous  pecuniary  beque^^ 
some  outright,  and  others  to  his  executors  in 
trust  for  various  beneficiaries.  The  rest, 
residue,  and  remainder  of  his  estate  he  gave 
to  the  executors,  in  trust  to  pay  the  income 


to  his  widow  during  her  lifetime,  and  upon 
her  decease  to  pay  the  Income  to  his  children 
until  a  given  time,  when  the  principal  was  to 
be  distributed.  Four  of  the  trust  legacies, 
aggregating  $395,000,  were  for  the  b«iefit  of 
nondependents,  and  consequently  not  payable 
for  a  year  after  the  death  of  the  testator. 
The  Income  of  the  estate  for  the  year,  upon 
a  sum  equal  to  these  trust  funds,  amounted 
to  $16,131.26.  This  sum  the  appellant  con- 
tends should  be  treated  as  income  of  the  resi- 
due, while,  -on  the  other  hand,  the  trustees 
claim  and  have  charged  themselves  wltb  it 
as  principal  of  the  residuary  estata  From 
so  much  of  the  decree  sustaining  the  trustees 
in  this  respect,  this  appeal  was  taken. 

Doubtless  this  precise  question  has  been 
often  before  our  courts,  but  it  seems  that  the 
decision  is  not  recorded  In  any  of  our  report- 
ed cases.  Elsewhere  may  be  found  an  abund- 
ance of  authorities  upholding  the  course  pur- 
sued by  the  court  below.  Lewln  on  Trusts 
(8th  Ed.)  8.  p.  301,  states  the  estabUshed  and 
guiding  rule  thxa: 

"The  tenant  tor  life  of  a  residue  is  not  en- 
titled  to  the  income  accruing  during  the  delay  al- 
lowed for  the  payment  of  legacies  on  bo  much  of 
the  testator's  property  as  is  subsequently  applied 
in  paying  them.  Executors,  as  between  them- 
selves and  the  persons  interested  in  the  residue, 
are  at  liberiy  to  have  recourse  to  any  funds  they 
please  for  payment  of  debts  and  legacies;  but, 
in  adjusting  the  accounts  between  the  tenant 
for  life  and  the  remaindermBn,  they  must  be 
taken  to  have  paid  the  debts  and  legacies  not  out 
of  capital  only  or  out  of  income  only,  but  with 
such  portion  of  the  capital  as,  together  with  the 
income  of  that  portion  for  one  year  from  the 
testator's  death,  was  sufficient  for  the  purpose." 

See,  also.  Perry  on  Trusts  (6tb  Ed.)  S  561. 

In  Allhusen  v.  Whittell,  L.  K.  4  Eq.  295,  the 
testator,  Whittell,  gave  his  estate,  which  was 
subject  to  the  payment  of  legacies,  to  trus- 
tees to  pay  the  income  to  bis  father  for  life, 
wltb  remainder  over  in  four  equal  parts. 
Vice  Chancellor  Wood,  in  illustrating  the 
rule,  said  that,  supposing  a  testator  has  a 
large  sum,  say  £50,000  or  £60,000,  in  the 
funds,  and  has  only  £10,000  worth  of  debts, 
the  executors  will  be  justified,  as  between 
themselves  and  the  whole  body  of  persons 
Interested  in  the  estate,  in  dealing  with  It  as 
they  think  best  in  the  administration.  Bat 
the  executors,  when  they  have  dealt  with  the 
estate,  will  be  taken  by  the  court  as  having 
applied  In  payment  of  debts  such  a  portion 
of  the  fund  as,  together  with  the  income  oC 
that  portion  for  one  year,  was  necessary  for 
the  payment  of  the  debta  Until  the  debts 
and  legacies  were  paid,  there  would  have  been 
no  interest  from  the  death  of  the  testator 
which  could  by  possibility  have  come  to  the 
tenant  for  life.  What  I  apprehend  to  be  the 
true  principle  is  that,  in  the  bookkeeping 
which  the  court  enters  upon  for  the  purpose 
of  adjusting  the  rights  between  the  parties, 
it  is  necessary  to  ascertain  .what  part,  to- 
gether with  the  income  of  such  part  for  a 
year,  will   be  wanted  for  the  payment  of 


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STATE  y.  STANFORD 


53 


debts,  legacies,  and  otber  cbarges,  during  tbe 
year;  and  the  proper  and  necessary  fund 
must  be  ascertained  by  Including  the  Income 
for  one  year  which  may  arise  upon  the  fund 
whicji  may  be  so  wanted.  It  is  clear  that 
the  tenant  for  life  ought  not  to  have  the  In- 
come arising  from  what  Is  wanted  for  the 
payment  of  debts,  because  that  never  becomes 
residue  in  any  way  whatever.  In  Holgate  v. 
Jennings,  24  Beav.  623  (53  Eng.  Reprint,  498), 
tbe  testator,  whose  estate  consisted  of  stocks, 
gave  £16,000  In  legacies,  payable  within  six 
months,  and  the  rest  and  residue  In  trust  to 
pay  tbe  annual  proceeds  to  his  wife  for  life. 
On  a  contest  between  the  life  right  holder 
and  the  remainderman,  It  .was  held  that  div- 
idends accruing  within  six  months  after  the 
testator's  death  on  stock  equal  to  the  amount 
of  the  legacies  formed  no  part  of  the  Income 
of  the  residuary  estate,  but  fell  Into  the  resi- 
due and  formed  a  part  of  the  corpus.  In 
Lambert  v.  Ijambert,  L.  R.  16  Eq.  320,  Vice 
Chancellor  Bacon  followed  the  principle  enun- 
ciated in  AUhusen  v.  Whittell,  as  did  the 
court  in  In  re  Whitehead,  Peacock  v.  Lucas, 
1  Caiancery,  678. 

In  New  York  we  find  the  same  rule  adopted. 
In  WlUlamsou  v.  Williamson,  6  Paige,  298, 
the  testator's  will  contained  pecuniary  lega- 
cies, and  the  income  on  the  residuary  estate 
be  gave  to  ills  wife  for  life,  with  the  remain- 
der over  to  his  three  sons.  In  determining 
the  right  as  between  the  life  tenant  and  the 
remainderman  to  the  Income  of  the  estate  for 
one  year  on  the  amount  of  the  legacies,  Chan- 
cellor Wadworth  said  that  It  was  not  the  In- 
tention of  the  testator  to  give  his  wife  the 
Interest  or  Income  of  his  whole  personal  es- 
tate, until  the  debts  and  legacies  should  be 
paid,  or  for  the  term  of  one  year,  and  then 
the  Interest  upon  the  residuary  estate  after 
that  time;  but  it  was  his  intention  to  give 
her  the  use  or  Income  of  the  same  residuary 
fund,  the  capital  of  .which  was  to  be  distrib- 
uted to  bis  three  sons  upon  her  death  or  re- 
marriage. He  dted  the  ease  of  Covenhoven 
V.  Shuler,  2  Paige,  132,  21  Am.  Dec  73,  and 
the  authorities  there  referred  to,  as  settling 
tbe  principle  that  where  there  Is  a  general  be- 
quest of  a  residue  of  the  testator's  personal 
estate  for  life,  with  a  remainder  over  after 
thie  death  of  the  first  taker,  the  whole  resid- 
uary fund  is  to  be  invested  for  the  benefit  of 
the  remainderman,  and  the  tenant  for  life  is 
only  entitled  to  tbe  Interest  or  income  of  that 
fund,  and  to  ascertain  the  amount  of  such 
residuary  fund,  so  as  to  apportion  the  capi- 
tal and  the  inc(Hue  properly  between  the  re- 
mainderman and  the  tenant  for  life,  the  ex- 
ecutor, upon  settling  the  estate  at  the  end  of 
tbe  year,  must  estimate  the  whole  estate,  at 
what  is  then  ascertained  to  have  been  Its 
cash  value,  at  the  testator's  death,  after  pay- 
ing all  debts,  legacies,  expenses  of  adminis- 
tration, and  otber  proi)er  charges  and  com- 
missions.   But  in  making  such  deduction  for 


legacies  payable  at  a  future  day,  and  which 
do  not  draw  interest,  the  whole  amount  of 
the  legacies  Is  not  to  be  deducted,  but  only 
such  a  sum  as,  if  properly  Invested,  would,  at 
the  time  when  tbe  legacies  become  payable, 
have  produced  the  requisite  sum  exclusive  of 
all  expenses  and  risk  of  loss.  To  the  same 
efCect  is  Matter  of  Accounting  of  Benson,  et 
aL.  96  N.  Y.  499,  48  Am.  Rep.  646. 

It  Is  therefore  quite  clear,  both  upon  prin- 
ciple and  authority,  that  the  Income  on  the 
legacies  under  consideration  passed  into  the 
residue  as  principal,  and  not  as  income  there- 
of. A  clear  distinction,  however,  is  drawn 
between  the  application  of  Income  on  a  fund 
applied  to  the  payment  of  a  vested  legacy 
and  accumulations  on  tbe  principal  of  an  es- 
tate from  .which  contingent  legacies,  or  those 
payable  at  an  Indeterminate  time  In  tbe  fu- 
ture, may  be  payable.  In  the  latter  instances 
the  income  falls  into  the  residue  as  Income  of 
the  residue.  The  reason  for  this  is  the  un- 
certainty as  to  whether  tbe  estate  will  ever 
be  called  upon  to  pay  such  legacies,  and  until 
it  is  the  whole  of  the  principal  is  "residue 
until  wanted,"  and  the  Income  thereof  Is,  of 
course.  Income  of  residue.  See  Sandford  v. 
Blake,  45  N.  J.  EJq.  248,  17  AU.  812,  where 
Justice  Depue  discussed  the  principle  and 
cited  the  English  authorities,  including  AU- 
husen V.  Whittell,  supra. 

Counsel  for  the  appellant,  upon  the  argu- 
ment and  in  his  brief,  cited  Corle  v.  Monk- 
house,  47  N.  J.  Eq.  73,  20  Atl.  367,  as  up- 
holding his  contention.  That  case  is  authori- 
ty for  one  of  the  exceptions  to  the  general 
rule  that  interest  on  legacies  does  -not  begin 
to  run  imtll  one  year  after  the  death  of  the 
testator,  viz.  where  a  gift  Is  made  of  the 
interest  or  income,  either  of  the  whole  of  the 
residue,  or  a  particular  part  of  it,  to  one 
person  for  life,  and  the  principal  Is  given  over 
to  others  on  the  death  of  the  life  tenant,  the 
life  tenant  Is  entitled  to  Interest  from  the 
date  of  the  death  of  the  testator.  This  doc- 
trine has  been  laid  down  time  and  again  by 
our  courts,  and  Is  not  at  this  day  even  debata- 
ble, but  manifestly  it  does  not  Involve  the 
point  of  law  raised  on  this  appeal. 

The  decree  below  will  be  affirmed,  with 
costs. 

(90  N.  J.  Law,  721) 
STATE  V.  STANFORD  (two  cases). 
(Nos.  82,  83.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
May  8,  1017.) 

1.  Crimiita.]:.   LiAW   <S=»(j06(7)— Reception   of 

EVIOKNCB— ObJEOTION. 

Where,  in  a  prosecution  for  keepine  disorder- 
ly houses,  the  testimony  given  by  defendant  on 
the  trial  of  an  indictment  against  a  third  per- 
son was  admissible,  an  application  to  ezclade 
in  toto  the  testimony  given  by  defendant  and 
liis  codefendant  at  such  trial  was  properly  re- 
fused; tbe  protection  which  defendant  was  en- 
titled to  have  against  the  previous  testimony  of 
bis   codefendant   being   an   instruction    that   it 


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101  ATLANTIC  BBPORTEB 


(N.X 


should  sot  b«  eonaiderod  in  passinK  on  hia  gruUt 
or  innocence. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  |  1843.] 

2.  Criminal  Law  ®=»824(8) — Instbuctionb— 
Fi.II.'DBX  TO  Reqitest. 

Where  accused  failed  to  request  an  instruc- 
tion that  testimony  pven  by  his  codefondant  at 
a  prior  trial  of  a  third  person  could  not  be  con- 
sidered in  passing  on  the  guilt  or  innocence  of 
accused,  be  could  not  complain,  on  appeal,  of 
the  trial  court's  failure  to  give  such  an  instruc- 
tion. 

[Ed.  Note.— For  other  cases,  see  Ciiminal 
Law,  Cent.  Dig.  S  1999.] 

3.  Cbiminal  Law  «=»393(1)— Pekvioub  Tebti- 
itoNT— AomssiBrLiTT. 

In  a  prosecution  for  keeping  disorderly 
houses,  it  was  no  objection  to  the  admissicHi  of 
testimony,  given  by  defendant  at  the  trial  of  a 
third  person,  that  the  state  bad  no  right  to  make 
defendant  testify  against  himself,  and  that  it 
had  not  been  first  shown  that  the  admissions 
contained  in  such  testimony  were  voluntary,  and 
that  defendant  was  cautioned  that  what  he  said 
might  be  used  against  him  on  some  other  occa- 
sion, where  it  appeared  that  the  previous  testi- 
mony of  defendant  had  been  elicited,  not  by  the 
state,  but  by  counsel  for  the  person  then  on  trial. 
[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §  871.] 

Error  to  Supreme  Court. 

Albert  Stanford  was  convicted  of  keeping 
disorderly  houses,  and  brings  error.  Af- 
firmed. 

Garrison  &  Voorhees  and  Isaac  H.  Nutter, 
all  of  Atlantic  City,  for  plaintiff  In  error. 
Charles  S.  Moore,  of  Atlantic  City,  for  the 
State. 

PER  CURIAM.  Albert  Stanford  and  Al- 
bert Jackson  were  convicted  at  the  Janu- 
ary term,  1916,  of  the  Atlantic  county  court 
of  quarter  sessions,  each  under  two  separate 
indictments  for  the  common-law  crime  of 
keeping  disorderly  houses  at  two  separate 
places  In  Atlantic  City.  The  four  indict- 
ments were  tried  together,  verdicts  of  guilty 
found,  and  from  separate  Judgments  in  each 
case  writs  of  error  were  taken  to  the  Su- 
preme Court  Thb  cases  were  there  argued 
together,  and  the  convictions  affirmed  by  that 
court  From  the  Judgments  of  affirmance 
entered  in  the  Supreme  Court  Albert  Stan- 
ford took  two  writs  of  error,  which  are  now 
before  this  court  The  testimony  and  assign- 
ments being  identical,  the  cases  were  pre- 
sented and  argued  together  by  consent  of 
counseL 

The  opinion  in  the  four  cases  In  the  Su- 
preme Court  was  rendered  In  one  of  the  Jack- 
son Cases  and  is  as  follows : 

"Per  Curiam.  The  defendant  was  indicted  for, 
and  convicted  of,  the  crime  of  keeping  a  disorder- 
ly house,  the  gravamen  of  the  charge  being  the 
assisting  in  carrying  on  a  gambling  establish- 
ment at  Chalfonte  avenue,  m  the  City  of  At- 
lantic City.  A  similar  indictment  was  found 
against  one  Albert  Stanford,  and  a  conviction 
was  had  in  his  case  also.  The  cases  were  tried 
together  in  the  quarter  sessions,  and  were  argued 
together  before  this  court 

[1, 2]  "Numerous  errors  were  assigned  by  each 


defendant  but  all  of  them  were  abandoned  on 
the  areument,  except  three.  These  three  are 
each  of  them  directed  at  an  allged  error  of  the 
trial  court  in  permitting  the  official  stenographer 
to  read  the  entire  testimony  given  by  Stanf(»d, 
and  also  that  given  by  Jackson,  on  a  trial  there- 
tofore had  on  an  indictment  presented  against 
one  Andrew  Terry,  who  was  the  proprietor  of 
the  gambling  establishment  at  which  the  present 
defendants  acted  as  assistants.  The  pith  of  tho 
contention  is  that  the  prior  testimony  given  by 
each  of  them_,  and  permitted  to  be  read  to  the 
jury,  was  evidential  only  against  himself,  and 
not  against  his  codefcndant,  and  that  its  admis- 
sion was  improper  for  this  reason.  It  is  con- 
ceded that  Jackson's  previous  testimony,  if  vol- 
untarily given,  was  properly  Admitted  as  evi- 
dential against  himself,  and  that  Stanford's  also 
was  admissible  against  himself.  It  foUows, 
therefore,  that  an  application  to  exclude  this  evi- 
dence in  toto  was  properly  refused.  The  protec- 
tion whidti  each  defendant  was  entitled  to  have 
against  the  previous  testimony  of  his  codefend- 
ant  was  an  instruction  that  it  should  not  be  con- 
sidered by  the  jury  in  passing  upon  his  guilt  or 
innocence.  Perry  v.  Levy,  87  N.  J.  Law,  670,  M 
Atl.  569.  But  as  no  request  for  such  an  instmc- 
tion  was  proffered,  and  as  the  testimony  was 
admissible  to  the  extent  indicated,  the  defend- 
ants cannot  now  complain  of  the  failure  of  the 
trial  court  to  thus  limit  the  effect  of  the  evi- 
dence. 

[3]  Moreover,  the  objection  to  the  admission 
of  tnis  testimony  was  not  based  upon  its  lack 
of  evidential  value,  but  upon  the  sole  ground 
that  it  could  not  be  introduced  until  it  was  first 
shown  that  the  admissions  contained  in  it  were 
voluntary,  and  that  the  party  making  them  was 
cautioned  that  what  he  said  might  be  used 
against  him  on  some  other  occasion;  and,  fur- 
ther, that  the  state  had  no  right  to  make  a  de- 
fendant testify  against  himself.  These  grounds 
of  objection  were,  under  the  circumstances,  en- 
tirely without  merit  and  have  not  been  urged 
before  us.  It  is  proper  to  say,  however,  that 
the  previous  testimony  of  these  defendants  oo 
the  trial  of  the  Terry  indictment  had  been  elicit- 
ed, not  by  the  state,  but  by  Terry's  counsel; 
and,  under  these  conditions,  there  was,  of  course, 
no  obligation  on  the  part  of  the  prosecutor  of 
the  pleas  to  warn  the  witnesses  that  what  they 
might  say  could  be  used  against  them  if  it  in- 
dicated criminality  on  their  part.  The  sugges- 
tion that  the  state,  by  submitting  the  previous 
admissions  of  the  defendants,  was  compelling 
them  to  testify  against  themsdves  is,  of  course^ 
entirely  without  substance. 

"The  judgment  under  review  will  be  affirmed." 

The  other  Judgments  .were  affirmed  for  the 
reasons  given  In  the  above  opinion,  a  mem- 
orandum to  that  effect  being  filed. 

PER  CURIAM.  The  two  Judgments  under 
review  on  the  writs  of  error  sued  out  by 
Stanford  In  this  ooart  are  affirmed  for  the 
reasons  given  In  the  above  opinion  of  the 
Supreme  Court 

(M  K.  J.  Law,  sn) 

STATE  V.  PULUS. 

(Supreme  Court  of  New  Jersey.    June  6,  1917.) 

1.  Indictment  and  Information  <©=al37(2) — 
Motion  to  Qtjash  Indictment— Disquali- 
fication or  Obano  Jubos. 
That  the  fweman  of  the  grand  jury  when  a 
candidate  for  the  office  of  freeholder  had  stated 
in  his  canvass  that  he  stood  for  efficiency  and 
economy  In  county  government,   and   that  the 
remedy  was  in  the  hands  of  voters  even  if  war- 


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FREKMAN  v.  VAN  WAQENEN 


55 


ranting  tbe  inference  that  tlie  members  of  the 
existing  board  of  which  the  defendant  was  one 
were  not  to  be  trusted  with  the  management  of 
the  county  government,  would  not  justify  quash- 
ing the  indictment  where  no  malice  or  ill  will  is 
arerred,  and  the  defendant  was  not  even  the 
rival  of  the  foreman  of  the  grand  iury  for  the 
office  he  sought 

[Ed.  Note.— For  other  cases,  see  Indictment 
and  Information,  Cent  Dig.  {  481.] 

2.  CoDNTiEs  «=>103— Misconduct  in  OmcB 

—Indictment — Sufficienct. 
In  a  prosecution  of  a.  freeholder  for  mis- 
conduct in  office,  an  indictment  averring  that 
the  defendant  was  an  officer  of  a  county  having 
been  duly  elected  chosen  freeholder  by  tbe  quali- 
fied voters  of  a  township  named  and  having 
taken  upon  himself  the  said  office  was  sufficient 
without  specifically  averring  that  he  took  the 
-oath  of  office. 

[Ed.  Note.— For  other  cases,  see  Counties, 
Cent  Dig.  {  160.] 

Read  Pnllis  was  Indicted  for  an  otTense. 
On  motion  to  qnasta  indictment  Motion  de- 
nied. 

Argued  February  term,  191T,  before 
SWATZB,  MINTDRN,  and  KALISOH,  JJ. 

Egbert  Rosecrans,  of  Blalrstown,  and  Har- 
lan BesBon,  of  Hoboken,  for  the  motion.  Wil- 
liam A.  Stryker,  of  Washington,  N.  J.,  op- 
posed. 

SWATZE,  J.  [1]  The  most  Important  ob- 
jection to  the  indictment  is  that  the  foreman 
of  the  grand  Jury  which  found  it  was  at  the 
time  a  candidate  for  the  offlce  of  freeholder 
and  in  his  canvass  had  suggested  that  the 
members  of  the  existing  board,  of  whom  tbe 
defendant  was  one,  were  not  to  be  trusted 
with  the  management  of  the  county  govern- 
ment. If  we  draw  this  Inference  from  the 
fact  that  he  stated  that  he  stood  for  efficiency 
and  economy  in  county  government,  and 
that  the  remedy  was  in  the  hands  of  the 
voters,  ,we  think  it  fails  to  Justify  us  in 
quashing  tbe  Indictment  The  case  differs 
from  State  v.  McCarthy,  76  N.  J.  Law,  295, 
68  AtL  1075,  where  the  proof  showed  partial- 
ity on  the  part  of  the  sheiiflC  in  selecting  the 
grand  Jury,  as  was  possible  under  the  law  as 
It  then  stood.  The  present  charge  is  in  the 
nature  of  a  challenge  to  the  favor  of  a  single 
grand  Juror,  and  goes  no  farther.  No  mal- 
ice or  lU  wUl  is  averred,  and  tbe  present  de- 
fendant was  not  even  the  rival  of  the  fore- 
man of  the  grand  jury  for  the  offlce  be  sought 
The  case  is  within  the  rale  of  State  v.  Turn- 
er, 72  N.  J.  Law.  404,  60  AU.  1112 ;  State  v. 
nickey,  10  N.  J.  Law,  83. 

[2]  Tbe  objection  to  the  form  of  tbe  in- 
dictment Is  unsubetantiaL  It  follows  that 
approved  by  this  court  in  State  v.  Coding- 
ton, 80  N.  J.  Law,  496,  78  Atl.  743,  afflnned 
82  N.  J.  Law,  728,  85  AO.  1135.  We  do  not  un- 
derstand the  suggestion  of  the  brief  that  tbe 
question  was  not  squarely  discussed  in  the 
opinion  in  that  case.  We  think  it  enough  to 
aver  that  the  defendant  .was  an  officer  of  the 
county,   having   been    duly   elected-  chosen 


freeholder  by  the  qualified  electors  of  the 
township  of  Blalrstown,  and  having  taken 
upon  himself  the  said  office,  without  specific- 
ally averring  that  he  took  the  oath  of  offlce. 
The  motion  is  denied.  Let  tbe  record  be 
remitted  for  trial  to  the  quarter  sessions. 


(to  N.  J.  lAW,  J58) 

FREEMAN  ▼.  VAN  WAGENEN  et  aL 
(Supreme  Court  of  New  Jersey.    June  6,  1917.) 

1.  Beokebs  <8=»85(1)  —  Action  fob  Commis- 
BioN- Evidence— ADMisstBiLiTT. 

In  a  broker's  action  for  commissions  for  the 
sale  of  real  estate,  evidence  for  the  purpose  of 
showing  that  the  defendant  sought  to  vary  the 
terms  of  the  written  agreement  between  the  par- 
ties by  making  it  applicable  only  in  the  case  of 
a  sale  to  a  railroad  was  not  admissible. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent. 
Dig.  §§  106,  108-110,  113,  115.] 

2.  Bbokebs  @=>88(4)  —  Action  fob  Comiis- 
sioNs— Jtjbt  Question. 

Whether  the  written  agreement  between  the 
parties  had  been  given  up  by  the  plaintiff  so  as 
to  render  it  of  no  effect  held  for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent 
Dig.  ii  128,  129.] 

3.  Bbokebs  «=>43(3)—Contbact— Statute  of 

FbaUDS— SlQNATUBE  BY  OnE  OF  TENANTS  IN 

Common. 
Under  statute  of  frauds  (2  Comp.  St  1910, 
p.  2617)  i  10,  providing  that  a  broker  selling 
lands  is  not  entitled  to  commissions  unless  em- 
ployed in  writing,  where  a  contract  for  the  em- 
ployment of  a  broker  to  sell  land  which  com- 
plied with  the  statute  was  signed  by  one  of  sev- 
eral tenants  in  common,  sudi  authority  and  a 
subsequent  agreement  for  a  conveyance  by  all  of 
the  cotenants  was  sufficient,  since  it  was  a  nec- 
essary inference,  either  that  such  cotenant  was 
the  agent  of  the  others  In  signing  the  authority 
to  the  broker,  or  that  they  adopted  his  act. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent 
Dig.  {  44.] 

4.  Beckers  ®=>54  —  Contbacts  —  Constbuc- 
TioN— "Sale"— "Sell." 

Where  a  broker  was  employed  in  writing  to 
sell  real  estate,  all  that  he  was  bound  to  do  was 
to  bring  the  parties  together  and  get  them  to 
make  a  oinding  agreement  and  it  was  not  neces- 
sary that  he  produce  one  able  to  perform  the 
contract,  since  the  words  "sale"  and  "sell"  in 
agreements  between  the  owners  of  lauds  and  real 
estate  brokers  mean  no  more  than  to  negotiate  a 
sale  by  finding  a  purchaser  upon  satisfactory 
terms. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent 
Dig.  Si  75-81. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Sale;   Sell.] 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  Bart  J.  Freeman  against  George 
A.  Van  Wagenen  and  others.  Judgment  (or 
plaintUF,  and  defendants  appeal.    Affirmed. 

William  K.  Managan,  of  Newark,  for  ap- 
pellants. Edwin  0.  CaffTey,  of  Newark,  for 
respondent 

SWATZE,  J.  [1,  J]  This  is  an  action  by  a 
broker  to  recover  commissions  on  a  sale  of 
real  estate.  On  October  22,  1913,  John  B. 
Van  Wagenen,  one  of  the  defendants  and  ten- 
ants in  common  signed  a  written  agreement 


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101  ATLANTIC  REPORTER 


(N.J. 


to  my  tbe  plaintiff  a  commission  of  2%  per 
cent,  (or  the  sale  of  the  property.  The  de- 
fendants claim  that  this  agreement  was 
meant  to  apply  only  to  a  proposed  sale  to  the 
Pennsylvania  Railroad  Company;  that  no 
such  sale  was  made ;  that  thereupon,  In  De- 
cember, 1913,  the  agreement  for  commissions 
was  returned  by  Freeman  to  Van  Wagenen 
and  abandoned.  In  fact  the  agreement  was 
not  produced  at  the  trial;  tbe  plaintiff  relied 
on  what  was  said  to  be  a  copy  which  bad 
been  retained  by  his  lawyer.  The  point  in 
this  respect  was  that  the  agreement  had  been 
abandoned  by  consent,  although  there  are 
suggestions  In  the  case  and  in  the  briefs  that 
the  defendant  sought  to  vary  the  terms  of 
the  agreement  by  making  It  applicable  only 
In  case  of  a  sale  to  the  railroad.  The  learn- 
ed trial  Judge  rightly  held  that  the  evidence 
was  not  admissible  for  that  purpose,  and  put 
to  the  jury  the  real  question  whether  the 
written  authority  was  given  up  by  the  plain- 
tiff, so  as  to  render  it  of  no  ^ect 

[S,  4]  Whether  the  authority  was  given  up 
or  not,  the  plaintiff  continued  his  efforts  to 
sell  the  property.  He  claims,  of  course,  that 
be  was  acting  under  the  written  authority. 
The  defendants  claim  that  he  was  acting 
only  under  a  verbal  authority  from  John  B. 
Van  Wagenen,  whose  agency  for  all  the  ten- 
ants in  common  is  not  disputed.  As  a  re- 
sult of  the  plaintiff's  efforts,  a  prospective 
purchaser  was  procured  in  the  person  of 
Cobb.  Pending  the  actual  execution  of  a 
contract  for  sale  with  Cobb,  the  plaintiff  pro- 
duced in  If  arch,  1014,  another  purchaser, 
Scberer,  who  offered  a  higher  price.  With 
blm  tbe  defendants  made  a  formal  written 
contract  on  March  14,  1914,  for  the  convey- 
ance of  the  land,  and  received  $1,000  on  ac- 
count of  the  purchase  price.  This  contract 
did  not,  however,  result  la  a  conveyance. 
Scberer  sought  to  rescind  and  recover  bis 
thousand  dollars,  but  failed.  Meantime  tbe 
defendants  actually  conveyed  tbe  property  to 
Cobb  for  a  lower  price  than  that  at  which 
they  bad  authorized  the  plaintiff  to  sell.  The 
claim  of  tbe  plaintiff  for  commissions  on  the 
sale  and  conveyance  to  Cobb  Is  not  Important 
for  the  present  purposes,  since  the  Jury 
found  in  favor  of  the  defendants  on  that  is- 
sue and  tbe  plaintiff  does  not  appeal.  Tbe 
question  for  us  Is  whether  there  was  any  er- 
ror in  submitting  the  case  to  the  Jury  as  to 
tbe  claim  for  commissions  on  the  sale  to 
Scberer.  Assuming  as  we  must,  in  view  of 
the  Jury's  finding  la  favor  of  the  plaintiff  on 
this  issue,  that  the  authority  of  October  22d 
bad  not  been  given  up,  we  think  It  was  right 
to  bold,  as  the  Judge  did,  that  tbe  authority 
and  the  subsequent  agreement  for  a  convey- 
ance to  Scberer  by  the  defendants  satisfied 
tbe  requirements  of  the  tenth  section  of  our 
statute  of  frauds  (2  Comp.  St  ISIO,  p.  2617). 
There  was  an  agreement  signed  by  one  of  the 
defendants  which  complied  with  the  statute. 


From  tbe  fact  that  the  otber  defendants  Join- 
ed him  In  the  contract  to  convey  to  Scherer, 
It  was  a  necessary  Inference,  either  that  he 
was  in  fact  their  agent  In  signing  tbe  author- 
ity to  Freeman,  or  that  they  had  adopted  bis 
act  Under  either  view,  actual  present  agen- 
cy or  subsequent  adoption,  he  was  entitled  to 
recover  if  he  had  performed  on  his  part  As 
to  this,  the  defendants  claim  that,  although 
tbe  plaintiff  bad  produced  a  ready  and  will- 
ing purchaser  in  the  person  of  Scberer,  be 
bad  not  produced  one  able  to  perform  tbe 
contract.  The  Judge  charged  that  all  the 
plaintiff  was  boimd  to  do  was  to  bring  tbe 
parties  together  and  get  them  to  make  a 
binding  agreement  This  was  a  correct  state- 
ment of  the  law.  It  Is  a  mistake  to  think 
that  we  decided  In  Hinds  v.  Henry,  36  N.  J. 
Law,  328,  that  tbe  broker  could  never  recov- 
er unless  be  procured  an  able  and  willing 
purchaser.  We  said  that  the  general  rule 
was  that  when  he  bad  done  that,  his  right 
to  commission  was  complete.  We  did  not 
deny  that  other  facts  also  might  make  his 
right  complete.  A  clear  distinction  is  made 
in  our  cases  between  a  sale  and  a  conveyance 
of  land.  We  agree  with  what  was  said  la 
Undley  et  al.  v.  Kelm  et  al.,  54  N.  J.  Eq. 
418,  at  page  423,  quoting  the  opinion  of  Vice 
Chancellor  Pitney,  to  be  found  in  34  Atl. 
1073,  that  the  words  "sale"  and  "sell"  in 
agreements  between  the  owners  of  land  and 
real  estate  brokers  mean  no  more  than  to 
negotiate  a  sale  by  finding  a  purchaser  upon 
satisfactory  terms.  This  the  plaintiff  did, 
the  defendants  actually  accepted  Scherer  as 
satisfactory,  and  the  only  question  so  far  as 
the  Scherer  transaction  is  concerned  was 
that  put  by  the  Judge  to  the  Jury,  whether 
tbe  written  authority  had  been  abandoned  by 
the  plaintifl  as  the  defendants  claimed. 

We  find  no  error;  tbe  Judgment  la  affirm- 
ed, with  costs. 


m  N.  J.  Law,  S87) 
PRANTL  T.  JUNK. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
May  8,  1917.) 

(Bvllaiiu  iv  <Ae  Court.) 
Apfeai,  and  Ebbor  «=s>428(2)  —  Noticb  of 

Appkai.  —  Pebitectino  Afpxal  —  Statutes 

ANo  Rules  or  Court. 
Appeals  were  substituted  for  writs  of  error 
by  tlie  practice  act  of  1912  (P.  L.  p.  377,  { 
25),  and  by  rule  77  (100  Atl.  xxiii)  annexed  to 
that  act,  and  rule  137  (100  Atl.  xxx)  of  tiie  Su- 
preme Court  (1913),  an  appeal  may  be  taken  by 
notice  served  on  the  adverse  party  and  filed 
within  the  time  limited  for  bringing  writs  of  er- 
ror (now  superseded  by  appeals  in  civil  suits). 
Such  an  appeal  is  perfected,  so  as  to  remove  the 
cause  from  the  court  below  to  the  court  above, 
by  serving  a  notice  on  the  adverse  party  and  fil- 
ing the  game  within  the  time  so  limited,  which 
is  one  year  in  the  class  of  cases  in  which  that 
at  bar  is  one.  The  provision  Is  in  the  conjunc- 
tive, namely,  the  service  and  filing  of  the  notice. 
The  provision  is  not  that  the  notice  shall  be  filed 
immediately  after  the  service  or  within  any  time 


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GODFBBY  V.  BOARD  OF  CHOSEN  FREEHOLDERS 


57 


preMribed  thereafter,  except  that  limited  tor 
the  taking  of  an  appeal,  so  that,  after  serving  a 
notice  of  appeal  at  an  early  date  after  judgment, 
the  appellant  may  delay  perfecting  the  appeal, 
so  far  as  the  notice  perfects  it,  until  the  last  day 
<m  which  an  appeal  will  lie. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  2167.] 

Appeal  frcMn  Supreme  Court. 
.  Action  by  Henry  Prantl  against  Daniel  J. 
Junk.    Judgment  for  plaintiff,  and  defendant 
appeals.    Motion  to  dismiss  denied. 

Garrison  &  Voorhees  and  Clarence  Ii.  Gold- 
-enberg,  all  of  Atlantic  City,  for  the  motion. 
TJlysses  Q.  Styron,  of  Atlantic  OUj,  opposed. 

WALKER,  Chancellor.  On  May  15,  1916, 
tbe  plaintiff  recovered  a  judgment  against 
the  defendant  in  tbe  Supreme  Court  in  a  suit 
for  malicious  prosecution,  and  on  June  14, 
1916)  tbe  defendant  served  a  notice  of  appeal 
upon  tbe  plaintiff.  Motion  is  now  made, 
Alanih  6,  1917,  to  dismiss  tbe  appeal,  for  the 
following  reasons:  (1)  Because  no  reasons  for 
reversal  were  served  upon  the  respondent  or 
his  attorneys  within  30  days  from  service 
-of  notice  of  appeal ;  (2)  because  no  state  of 
tbe  case  has  ever  been  prepared  or  served; 
(3)  because  tbe  said  cause  was  not  noticed  for 
argument  in  tbe  Court  of  Errors  and  Appeals 
by  the  appellant  at  either  June  or  November 
terms,  1916,  or  the  March  term,  1917 ;  (4)  be- 
-cause  tbe  appellant  has  not  prosecuted  bis 
appeal  other  than  serving  notice  of  appeal  in 
June,  1916,  and  has  failed  to  cause  bis  notice 
«f  appeal,  then  served,  to  be  filed  with  the 
clerk  of  this  court ;  (5)  because  the  appellant 
has  heretofore  abandoned  his  appeal. 

Appeals  were  substituted  for  writs  of  error 
by  the  practice  act  of  1912  (P.  I*  p.  377,  {  25). 
In  rule  77  (zxili)  annexed  to  that  act  it  Is 
provided  that  appeals  shall  be  taken  by  no- 
tice, which  shall  be  served  on  the  adverse 
party  and  filed  within  the  time  limited  for 
bringing  writs  of  error,  which  at  the  time  of 
tbe  passage  of  that  act  was  one  year  in  the 
class  of  cases  is  which  that  at  bar  is  one. 
Oomp.  Stat  p.  2208,  f  2.  Rule  137  (100  Atl. 
XXX)  of  the  Supreme  Court  (1913)  in  its  first 
paragraph  is  a  literal  transcription  of  rule 
77  annexed  to  the  practice  act  of  1912.  The 
remaining  portion  of  rule  137  concerns  mat- 
ters of  practice  and  procedure  not  involved 
In  this  motion. 

It  Is  to  be  remembered  that  the  limitation 
of  time  in  which  an  appeal  may  be  taken  is 
one  year  after  the  judgment  is  entered,  which 
time  has  not  yet  expired  in  this  case.  If 
tbe  defendant  had  not  appealed,  he  might 
still  do  so.  An  appeal  is  a  matter  of  ri^t, 
subject  to  practice  regulations,  and,  in  order 
to  entitle  himself  to  be  heard  in  this  court, 
the  defendant  is  only  required  to  serve  Ills 
notice  of  appeal  and  file  the  same  within  the 
prescribed  time.  The  provision  is  not  that 
he  shall  file  it  immediately  after  service  or 


within  any  pf«seribed  time  thereafter  except 
that  limited  for  taking  an  appeal,  so  that, 
having  served  a  notice  of  api)eal  at  an  early 
date  after  the  judgment,  the  appellant  may, 
if  he  chooses,  delay  perfecting  the  appeal,  so 
far  as  the  notice  perfects  It,  until  tbe  last 
day  on  which  an  appeal  will  lie.  The  re- 
spondent is  not  harmed  by  sudi  a  procedure, 
for,  as  we  have  seen,  the  combined  action 
necessary  to  remove  the  cause  from  the  court 
of  first  instance  to  the  appellate  tribunal, 
namely,  the  serving  and  filing  of  the  notice, 
may  both  be  done  on  the  last  day.  That  limi- 
tation in  this  case  has  not  yet  been  reached. 

In  rule  77  annexed  to  the  practice  act  and 
also  rule  137  of  the  Supreme  Court  ttiere  is 
a  provision  that  the  serving  and  filing  of  the 
notice  of  appeal  shall  be  at  least  30  days  be- 
fore the  appeal  is  argued.  This,  as  yet,  has 
no  application  to  the  matter  sub  judice. 

The  specific  grounds  upon  which  the  mo- 
tion to  dismiss  is  based  relates  to  matters 
of  practice  in  the  prosecution  of  the  appeal 
after  it  has  been  perfected  so  as  to  remove 
the  cause  from  the  court  below  to  tbe  court 
above,  except  the  last  one,  which  is  that  the 
appellant  has  abandoned  the  appeal;  but 
this,  so  far  as  it  purports  to  be  the  result  • 
of  the  inaction  complained  of,  Is  non  sequi- 
tur,  and,  so  far  as  it  involves  a  statement  of 
an  extraneous  fact,  was  not  proved. 

The  motion  to  dismiss  tbe  appeal  will  be 
denied. 

(90  N.  J.  Law,  BIT) 

GODFKBT  et  al.  v.  BOARD  OF  CHOSEN 

FREEHOIiDERS  OF  ATLANTIC 

COUNTY  et  aL 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
April  27,  1917.) 

HiOHWATs  <S=»105(1>— Scope  or  Aijthority 
TO  Rkconstkdot— ''Rkconstruot." 
Laws  1914,  p.  203,  authorizing  the  board  of 
chosen  freeholders  of  any  county  to  repair  or 
"reconstruct"  county  roads  and  issue  bonds 
therefor,  expressly  limits  the  meaning  of  the 
word  "reconstruction"  to  the  "reconstruction  con- 
templated tmder  tbe  provisions  of"  Laws  1912, 
p.  809,  providing  for  the  permanent  improve- 
ment and  maintenance  of  public  roads;  that 
is,  a  reconstruction  that  is  on  the  one  hand 
closely  associated  with  the  idea  of  repairs,  and, 
upon  the  other,  sharply  contrasted  with  the  idea 
of  construction,  and  is  not  a  grant  of  power  to 
reconstruct  county  roads  in  the  broad  sense  of 
the  term  "reconstruction." 

[Ed.  Note. — For  other  cases,  see  Highways, 
Cent  Dig.  iS  323-327,  329,  330. 

For  other  definitions,  sec  Words  and  Phrases, 
First  and  Second  Series,  Reconstruct;  Recon- 
struction.] 

Appeal  from  Supreme  Court 

On  certiorari  to  the  Supreme  Ciourt  (99 
Atl.  843)  by  Carlton  Godfrey  and  another  to 
review  a  resolution  of  the  Board  of  Chosen 
Freeholders  of  Atlantic  County,  Liddle  & 
Pfelffer,  contractors,  being  additional  re- 
spondents, the  resolution  was  set  aside,  and 
respondents  appeal.    Affirmed. 


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101  ATIAMTIO  RSPORTER 


OX.X 


Bmenon  L,  Bidiards,  of  Atlantic  City, 
and  Louis  Hood  and  Riker  &  Rlker,  all  of 
Newark,  for  appellanta.  Tbeo.  W.  Scblmi»f 
and  C.  L.  Cole^  both  of  Atlantic  City,  for 
appellees. 

GARRISON,  J.  The  facts  of  this  case  are 
fully  stated  in  the  opinion  of  Mr.  Justice 
Blad(,  who  set  aside  the  award  of  a  contract 
for  the  Improvement  of  certain  public  roads. 
Godfrey  v.  Chosen  Freeholders,  99  Atl.  843. 

We  agree  that  the  contract  was  not  legal- 
ly awarded,  but  find  it  unnecessary  to  lay 
down  any  rule  as  to  conditional  awards  gen- 
erally. 

In  the  present  case  the  conditional  award 
made  on  November  8,  1916,  was  by  its  own 
terms  rendered  void  by  the  election  to  wblcb 
It  referred.  There  was  therefore,  on  Novem- 
ber 24, 1916,  no  award  and  no  power  to  make 
one,  since  the  meeting  held  on  that  date  was 
not  an  adjourned  meeting  or  one  to  which 
the  matter  had  been  continued;  moreover, 
all  bids  but  one  had  been  rejected,  and  none 
of  the  statutory  safeguards  thrown  around 
the  awarding  of  such  a  contract  was  or 
could  have  been  complied  with.  The  award 
made  at  that  meeting  had  not  even  the 
semblance  of  legality.  Our  affirmance  of  the 
Judgment  of  the  Supreme  Court  might  well 
rest  upon  this  groimd  alone,  were  it  not  for 
the  fact  that  there  Is  a  more  fundamental 
question  that  lias  been  fully  argued  by 
counsel,  and  that  ought,  In  the  Interests  of 
the  public,  to  be  decided  before  any  further 
action  is  taken  by  the  board  of  chosen  tree- 
holders  under  diapter  122  of  the  Laws  of 
1914,  which  admittedly  is  the  autliorlty  upon 
which  the  right  to  make  the  proposed  im- 
provement rests.  That  statute  is  not  a  grant 
of  power  to  reconstruct  county  roads  In  the 
broad  sense  of  the  term  "reconstruction," 
nor  does  It  leave  it  to  the  courts  to  give 
such  broad  meaning  to  it.  The  statute  itself 
defines  the  word  by  limiting  It  to  the  "re- 
construction contemplated  under  the  provi- 
sions of  an  act  entitled, 

'An  act  to  provide  for  the  permanent  improve- 
ment and  maintenance  of  public  roads  in  this 
state  (Revision  of  1912),*  approved  April  15, 
1912." 

We  are  thrown  back  therefore  upon  the 
act  of  1912  In  order  to  ascertain  the  sense 
in  which  the  word  "reconstruction"  is  used 
in  that  act,  and  when  such  sense  is  ascer^ 
tained  such  meaning  and  none  other  must  be 
given  to  It  in  the  act  of  1914.  Turning, 
then,  to  the  act  of  1912  (P.  U  1912,  p.  809), 
we  find  it  to  be  a  Revision  of  the  Public 
Roads  Act  dealing,  as  Its  title  imports,  with 
the  t)ermanent  Improvement  of  public  roads 
and  their  maintenance.  The  Improvement 
of  a  public  road  is  described  generally  by 
the  act  to  be  its  construction  as  a  macada- 
mized, Telford,  stone,  gravel,  or  other  sort 
of  road;  and  the  maintenance  of  such  an 
Improved  road  includes  a  provision  for  any 


extraordinary  repairs  or  reconstructioa  of 
which  such  road  may  be  in  need. 

This  is  the  sort  of  reconstruction  that  is 
contemplated  by  the  act  of  1912,  a  recon- 
struction that  is,  upon  the  one  band,  closely 
associated  with  the  idea  of  repairs,  and,  up- 
on the  other,  sharply  contrasted  with  the 
idea  of  construction.  So  that  upon  compar- 
ing the  provisions  of  that  act  with  the  provi- 
sions of  the  present  contract,  the  latter  could, 
by  no  stretch  of  the  Imagination,  be  brought 
within  the  provision  for  reconstruction  of 
the  act  of  1912. 

This  being  so.  It  follows  ln4)emtiTely  that 
such  contract  provisions  cannot  be  brought 
within  the  authority  to  reconstruct  granted 
by  the  act  of  1914,  which  in  express  terms 
applies  to  Budi  reconstruction  only  as  was 
contemplated  by  the  act  of  1912. 

The  award  of  the  contract,  therefore,  was 
not  only  invalid  because  not  legally  made, 
but  also  because  the  board  of  chosen  free- 
holders were  without  authority  to  make  the 
proposed  improvement. 

The  Judgmmt  of  the  Supreme  Court  is  af- 
firmed. 

(R  N.  J.  Bq.  63S> 
FRASER  V.  FRASER. 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
Maich  20,  1917.) 

(Byllahut  (y  tke  Court.) 

1.  DivoRCK  «=337(15)— Gkounds  —  Deskbtiok 
— "Willful  Desebtign"  —  "Obstinate  De- 
sertion." 

It  is  tlie  duty  of  a  husband  to  provide  a 
home  for  his  wire,  In  wliich  she  is  recognized 
by  its  inmates  as  the  household  mistress,  and 
I  when  the  husband  subjects  his  wife  in  the  man- 
agement of  ber  household  affairs  to  the  inter- 
i  ference  of  ilia  mother,  who  manifests  an  enmity 
I  towards  the  wife,  and  by  words  and  acts  as- 
I  sails  tier   conduct   and  reputation   to   such   an 
I  extent  that  she  cannot  endure  it,  and  leaves  the 
home  for  that  reason,  her  desertion  may  be  will- 
ful, but  it  does  not  become  obstinate,  so  long 
as  the  husband  malccs  no  effort  to  induce  her 
to  return  to  a  home  freed  from  the  contentious 
element. 

I     [Kd.    Note.— For    other   cases,    sea   IXvorce, 
Cent.  Dig.  1 122. 

I     For  other  definitions,  see  Words  and  Phrases, 
]  First   and    Second    Series,    Willful   Desertion ; 
Obstinate  Desertion.] 

2.  Divorce  «=»133(3)— Desebtiow  — Wtre's 
Return— Bona  Fides. 

A  wife  left  her  husband's  home,  after  noti- 
fying him  ttiat  she  would  do  so  unless  he  pro- 
vided a  home  apart  from  his  mother,  whose  con- 
duct she  claimed  humiliated  her,  and  who  had 
charged  her  witii  being  a  bad,  wicked  woman. 
I  This  tiie  bu8l>and  refused,  saying,  "That  is  up 
to  you."    When  she  left  her  husband  was  pres- 
'  ent,  made  no  protest,  and  did  not  ask  her  to 
'  stay. 

{     She  took  with  her  their  only  child,  three  weeks 

;  old,  and  the  husband  never  attempted  to  see  his 

wife  or  the  child,  although  they  lived  in  the 

same  city.    After  two  years  the  husband  decided 

'  to  move  to  this  state  in  order  to  obtain  a  divorce 

'  for  desertion.     Shortly   before  coming  to   this 

!  state  he  wrote  a  letter  to  his  wife,  and  the  day 

after  he  moved  he  wrote  her  another ;    the  con- 

i  tents  of  these  letters  being  the  only  proof  of  an 


CsfrFor  oclMr  easM  na  aun*  topto  and  KBT-MUHBBSR  In  all  Kar-Numbarsd  Dlgaats  aD4  Indazaa 


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FRA8EB  T.  FBASETR 


69 


attempt  to  Incltie*  hta  wife  to  retnm.  Neither 
letter  contained  any  request  or  invitation,  but  a 
mere  statement  tliat  the  liome  yraa  open  for  lier 
return  under  old  conditions,  including  tlie  pres^ 
ence  of  ills  mother.  Held,  that  these  letters 
were  not  proof  of  a  bona  fide  effort  to  induce  the 
wife  to  return,  for  there  was  no  promise  to  re- 
move the  real  cause  of  the  separabon,  which  the 
husband  recognized  when  he  permitted  his  wife 
to  leave  without  protest.  Nor  did  they  invite 
the  wiffe  to  return,  and  were  evidently  written 
as  a  basis  for  the  intended  divorce  prooeediugs, 
embodying  terms  wliich  he  knew  the  wife  could 
not  accept 

[Ed.  Note.— For  other  cases,  see  Divorce, 
Gent  Dig.  $  44a] 

Appeal  from  Conrt  of  Chancery. 

Action  for  divorce  by  WiUiam  J.  Fraaer 
against  Mary  Bf.  Fraser.  Decree  for  plain- 
tiff, and  defendant  anDoals.  Reversed,  and 
cause  remanded  to  the  Court  of  Chancery, 
so  that  the  petition  might  be  dismissed. 

Edward  Maxson,  of  Jersey  City,  for  appel- 
lant James  A.  Sullivan,  of  Passaic,  for  ap- 
pellee. 

BERGEN,  J.  From  a  decree  of  divorce, 
based  upon  the  petition  of  the  husband,  al- 
leging desertion  by  the  wife)  she  has  ap- 
pealed. 

[1]  They  were  married  in  the  city  of  Brook- 
lyn, N.  Y.,  where  both  resided,  July  10,  1910; 
a  <AUd  was  bom  April  24,  1911;  the  defend- 
ant left  petitioner's  house  with  the  child  May 
13, 1911;  and  since  that  date  the  parties  have 
lived  in  separate  homes.  The  reason  which 
the  wife  gives  for  leaving  her  husband's 
house  is  that  the  conduct  of  the  husband's 
mother,  who  was  an  inmate  of  the  home, 
made  her  life  intolerable  by  constant  quar- 
rels, charged  her  with  l>elng  a  bad  woman, 
estranged  her  husband's  affection,  who  es- 
poused the  cause  of  the  mother,  and  In  many 
ways  manifested  her  111  will  towards  the  wife 
by  acts  and  speech,  so  that  her  position  as 
mistress  of  the  home  was  depredated,  and 
she  humiliated  and  deprived  of  the  comfort 
and  liapplness  she  had  a  right  to  enjoy.  That 
there  were  many  disagreements  and  quarrels 
between  the  women  is  not  disputed;  the  tes- 
timony showing  that  the  husband  was  aware 
of  the  condition,  and  that  as  early  as  Novem- 
ber, 1910,  his  wife  complained  to  him  that, 
unless  he  provided  her  a  home  separate  from 
his  mother,  she  would  have  to  leave  Mm. 
^niere  Is  no  doubt  that  It  was  a  contentious 
household,  for  which  the  mother  was  at 
least  partly  to  blame,  so  that.  If  her  conduct 
was  not  modified,  there  could  be  no  happi- 
ness; and  this  the  husband  did  not  imder^ 
take  to  accomplish,  for  he  testified  that  he 
heard  both  sides  and  remained  nentral,  even 
when  told  by  his  wife  that  his  mother  had 
written  a  letter  to  a  fortune  teller,  In  which 
the  wife  was  described  as  "a  Ijad,  wicked 
woman."  This  attitude  on  the  part  of  the 
husband  is  not,  perhaps,  such  legal  cruelty 
that  it  would  justify  a  wife  In  leaving  the 
home ;  but  there  is  a  8i)ecles  of  cruelty  which 
cuts  deeper  than  a  blow  or  the  lasl^  and  that 


1b  the  weakening  of  a  husband's  lore  end  af- 
fection through  the  disparagement  of  the 
wife  by  the  hnsband's  mother,  and  when  not 
resented  by  him,  but  apparently  sustained,  is 
bound  to  destroy  the  happiness  of  the  home. 
Under  such  circumstances  it  Is  his  duty  to 
remove  the  cause,  and  If  he  refuses  It  Is  a 
potMit  element  In  the  consideration  of  the 
questions  whether  he  did  not  consent  to  the 
separation,  and  whether  he  made  a  bona  fide 
effort  to  Induce  his  wife  to  return.  The 
animus  of  the  mother  Is  further  manifested 
by  the  fact  that,  although  an  Inmate  of  the 
bouse  when  the  child  was  bom,  she  never 
made  any  effort  to  see  the  ddld,  and,  bo  far 
as  the  testimony  shows,  never  did. 

This  cause  UluMrates  the  futility  of  at- 
tempting to  establish  such  a  home  as  a  hus- 
band Should  provide  for  his  wife,  when  one 
of  the  component  parts  Is  his  mother,  who 
up  to  the  time  of  the  Introduction  of  the  wife 
Is  Its  heaA,  and  who  is  not  willing  to  gra- 
ciously accord  to  the  wife  her  rightful  posi- 
tion as  mistress,  and  where  the  husband,  In 
all  disagreements  between  bla  mother  and 
wife,  rither  supports  the  mother  or  remains 
neutral  between  the  contending  forces.  It  Is 
the  duty  of  the  husband  to  provide  a  home 
for  bis  wife,  where  she  Is  recognized  by  its 
Inmates  as  the  household  mistress,  and  when 
the  husband  subjects  his  wife  in  the  manage- 
ment of  her  household  affairs  to  the  Inter- 
fer^ice  of  his  mother,  who  manifests  an 
enmity  towards  the  wife,  and  by  words  and 
acts  assails  her  conduct  and  reputation  to 
such  an  extent  that  she  cannot  endure  it,  and 
leaves  the  home  for  that  reason,  her  deser- 
tion may  be  willful ;  but  it  does  not  become 
obstinate  so  long  as  the  husband  makes  no 
effort  to  induce  her  to  return  to  a  home  freed 
from  the  contentious  element  Shortly  be- 
fore the  wife  left  she  again  told  her  hus- 
band that,  unless  he  provided  a  home  apart 
from  his  mother,  she  would  leave,  and  he 
admits  that  his  reply  was,  "That  Is  up  to 
you,"  and  on  the  day  she  moved  he  was  pres- 
ent cutting  the  lawn,  but  paid  no  attention  to 
the  moving,  nor  did  he  say  a  word  to  her  of 
protest,  or  request  her  to  remain. 

The  fair  Inference  from  this  record  is  that 
he  tacitly  consented  to  the  separation,  prefer- 
ring to  retain  his  mother,  rather  than  his 
wife  and  child.  Under  these  circumstances 
the  husband  was  not  without  fault,  and,  as- 
suming that  the  desertion  by  the  wife  was 
willful.  It  is  not  obstinate  unless,  after  a 
bona  fide  effort  to  effect  a  reconciliation,  the 
wife  refused  to  return,  and  we  must  there- 
fore consider  and  determine  whether  such  an 
effort  has  been  made.  It  was  manifest  to  the 
husband  that  no  permanent  reconciliation 
could  be  effected  If  the  sume  conditions  re- 
mained, and  the  wife  required  to  accept  a 
home  with  his  mother,  who  considered  her  "a 
bad,  wicked  woman."  This  was  a  huuiilia- 
tlon  he  knew  she  would  not  submit  to.  in 
our  opinion  the  record  falls  to  show  any  such 
bona  fide  effort  aa^  the  law  requires.    In  Van 


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101  ATIANTIO  REPOKTEB 


(N.J. 


Wart  T.  Van  Wart,  67  N.  J.  Bq.  598,  41  Atl. 
966,  the  husband,  when  the  wife  was  leaving, 
as  In  this  case,  "stood  by  without  asking  her 
to  stay,"  and  It  was  held  that  it  was  his  duty 
to  make  a  bona  flde  effort  to  Induce  her  to 
return.  "Desertion  cannot)  be  c»nsldeied  as 
obstinate  on  the  part  of  one,  when  the  sepa- 
ration la  acquiesced  In  by  and  entirely  satis- 
factory to  the  other,  who  neither  entertains 
nor  manifests  any  desire  that  the  separation, 
nor  the  causes  which  brought  it  about,  should 
cease."  Ghlpchase  v.  Chlpchase,  48  N.  J.  Eq. 
649,  22  Atl.  688,  affirmed  on  opinion  below  49 
N.  J.  Eiq.  594,  26  Atl.  468. 

[2]  What  has  the  petitioner  done  in  this 
case  to  manifest  a  sincere  desire  that  the 
separation,  and  the  causes  which  brought  it 
about,  should  cease;  the  cause  being  a  con- 
tentious mother-in-law  unkindly  disposed  to- 
wards the  wife?  We  have  his  admisslMi 
that  be  has  never  visited  his  wife  or  child, 
although  th^  lived  in  the  same  dty,  and  he 
tratlfles  that  he  has  no  affection  for  the 
diild.  He  does  not  daim  that  he  would  not 
have  been  allowed'  to  see  either  his  wife  or 
child,  or  that  he  made  any  effort  to  do  so; 
he  sulked  in  his  tent  until  he  wished  to  ob- 
tain a  divorce.  In  March,  191S,  he  removed 
to  New  Jersey  for,  as  he  testified,  the  express 
purpose  of  obtaining  a  divorce  for  desertion, 
and  his  only  effort  to  Induce  his  wife  to  re- 
turn was  sending  her  two  letters,  one  dated 
February  1,  1913,  and  the  other  April  1, 1913. 
The  first  letter  was  written  shortly  before  he 
moved  to  this  state,  and  when,  presumably, 
he  had  decided  to  do  so  for  the  purpose  of 
obtaining  a  divorce,  and  it  should  be  read 
from  that  viewpoint.  He  asks  whether  she 
expects  to  live  in  the  present  manner  for  the 
rest  of  her  life,  whether  she  intends  to  return 
to  his  home,  or  whether  she  is  going  to  get  a 
divorce,  and  then  adds,  "The  home  is  just  the 
same  as  it  always  was ;  I  never  told  you  to 
go,  or  debarred  you  from  returning,  and  you 
can  return  under  the  same  ccmdltions  as  you 
originally  came  to  it,"  and  that,  if  she  wished 
a  divorce,  "you  can  have  a  divorce  from  me 
at  any  time  without  any  contest"  It  is  not 
difficult  to  read  between  the  lines  that  this 
was  not  a  bona  fide  attempt  to  remove  the 
cause  and  end  the  separation.  It  ccmtalns  no 
word  of  affection,  no  request  to  retnm ;  all 
that  be  offers  Is  a  place  to  live  under  the  old 
conditions,  and  It  was  evidently  written  to 
lay  the  basis  for  a  divorce  in  this  state  afiter 
removal  thereto ;  besides  this,  an  offer  not  to 
contest  a  divorce  suit  instituted  by  her  is 
hardly  consistent  with  a  bona  flde  desire  to 
Induce  a  recondllation,  but  rather  an  invita- 
tion to  join  with  him  in  making  It  permanent 
by  a  divorce. 

The  second  letter  contains  a  notification 
that  he  has  removed  to  New  Jersey,  and  that 
his  house  was  still  open  to  her,  "the  same  as 
prior  to  the  time  you  left  me  and  your  home 
at  Brooklyn."    Neither  letter  contains  any 


invitation  or  request  to  return,  and  the  last 
was  written  immediately  after  be  moved  to 
this  state  in  order  that  he  might  secure  a  di- 
vorce; and  It  is  not  credible  that  the  peti- 
tioner, having  Just  moved  to  the  state  with 
the  intention  of  obtaining  a  divorce,  really 
Intended  that  it  should  induce  his  wife  to 
accept,  and  thus  prevent  the  accomplishment 
of  the  purpose  he  had  In  view.  He  knew 
that  so  long  as  the  original  cause  remained 
he  was  in  no  danger  of  acceptance;  be  does 
not  invite,  but  informs  her  that  she  may  re- 
turn under  old  cocditlous;  and  It  was  mani- 
festly not  his  intention  to  ask  her  to  come, 
for  he  carefully  avoids  doing  so,  bnt  at  the 
same  time  notifies  her  that.  If  she  comes,  she 
must  do  so  with  the  cause  of  separati<»i  still 
present  To  this  lett«r  d^endant  replied,  ex- 
pressing her  desire  and  willingness  to  return 
If  the  mother  was  not  a  part  of  the  family. 
The  petitioner,  having,  In  effect,  cons«ited  to 
the  separation,  and  failed  to  show  that  he  has 
made  a  bona  flde  attempt  to  end  the  separa- 
tion, is  not  entitled  to  a  decree  for  divorce  for 
desertion. 

The  decree  appealed  from  wlU  be  reversed, 
and  the  record  remanded  to  the  Court  of 
Chancery,  so  that  the  petition  may  be  dis- 
missed. 

(M  N.  J.  lAW,  481) 
BOSS  et  nx.  v.  COMMISSIONERS  OP  PALI- 
SADES   INTERSTATE   PARK. 

(Supreme  Court  of  New  Jersey.    June  6,  1917.) 
(Bytlalut  hv  the  Court.) 

1.  APPEAI,    and     EBBOB     l8=a971(2)— EvtDENCK 

®=5546— Ekpebt  on  VALtJE  OF  Land — Dis- 

OBEnON  OF  TBIAI.  COtTET— RKVIBW. 

Who  is  an  expert  on  the  value  of  land  under 
our  decisions  must  be  left  v^  much  to  the  dis- 
cretion of  the  trial  judge.  His  decision  is  con- 
clusive, unless  clearly  shown  to  be  erroneous  in 
matter  of  law. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  3853;  Evidence,  Cent  Dig. 
§  2363.] 

2.  Evidence  «=>543(3)— EixFKBTa— Lakd  Vai> 

TJES— QUAtrnCATION. 

The  dominant  circumstances  forming  the 
qualification  of  expert  witnesses  as  to  land  val- 
ues consist  of  the  fact  either  that  they  have 
themselves  made  sales  or  purchases  of  other 
similar  lands  in  the  neighborhood  of  the  land  in 
question  within  recent  periods,  or  that  they  have 
knowledge  of  such  sales  by  others. 

[Eld.  Note.— For  other  cases,  see  Evid«ioe, 
Cent  Dig.  {  2357.] 

8.  Evidence  iS=3543@)  —  Ezfebt  Witness— 

VAi,tiE  OF  Land. 
The  mere  fact  that  a  witness  owns  the  land, 
bnt  has  no  special  knowledge  of  values,  does  not 
qualify  him  as  an  expert,  so  as  to  give  an  opin- 
ion as  to  the  value  of  the  land. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  {  2357.] 

4.  Eminent  Domain  ®=>131— Valuation  or 
Land — Undeelying  Stone. 
Valuing  land  taken  under  condemnation  un- 
derlaid with  stone,  the  stone  should  not  be 
valued  separately  and  apart  from  the  land,  but 
it  may  be  shown  to  what  extent  the  land   is 


As>For  other  eaaes  m*  i»m»  toplo  and  KBT-NUUBKR  ia  all  Key-Numliared  DlgMU  aaa  Inauu 


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61 


enhanced  In  value  by  the  stone.    The  stme  ia  a 
component  part  of  the  land. 

[Ed.  Note.— For  other  cases,  we  Ehninent  Do- 
main, Cent.  Dig.  §  353.] 
6.  Evidence  «=>142(1)— Cokdkmnation  Pbo- 

CKEDINQ — VALUK   OJ   LAND. 

It  is  not  error  to  admit  evidence  of  prices 

eaid  by  the  condemning  party  for  similar  lands 
I  the  vicinity. 

fBd.  Note.— Pot  other  cases,  see  Evidence, 
Cent.  Dig.  Si  418,  417,  423.] 

6.  Evidence  «=»142(1)— Value  of  Land. 

The  price  paid  for  land  in  the  neighborhood 
of  that  being  condemned,  to  be  evidential,  the 
land  must  be  substantially  similar. 

[Ed.  Note.— For  other  cases,  see  BvidenoB, 
Cent.  Dig.  §1  416,  417,  423.] 

7.  Eminent  Domain  «=»124— Vautation  of 
La  NH— Time. 

The  land  is  to  be  valued  in  the  condition 
in  which  it  was  on  the  date  of  filing  the  peti- 
tion and  order,  fixing  the  time  and  place  for  the 
condemnation  proceedings.  Act  March  20,  1900 
(P.  L.  p.  81)  §  6. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  §S  332-344.] 

Appeal  from  Circuit  Oonrt,  Bergen  Connty. 

Action  by  P.  Sanford  Boss  and  wife  against 
tbe  Commissioners  of  the  Palisades  Inter- 
state Park.  From  a  verdict  of  a  Jnry  in  a 
condemnation  proceeding,  plaintiffs  appeal. 
Affirmed. 

Argued  before  TBENCHABD  and  BLACK, 
7J. 

Bedle  &  Kellogg,  of  Jersey  City,  and  Alonzo 
Chnrcta,  of  Newark,  for  appellants.  Josiah 
Stryker,  of  Trenton,  and  John  W.  Wescott, 
Atty.  Gen.,  for  respondent. 

BLACK,  J.  This  case  Is  an  axipeal  fnmi 
the  verdict  of  a  ]ury  rendered  in  a  cwidem- 
natlon  proceeding  tried  at  the  Bergen  circuit 
The  verdict  of  the  Jury  was  $8,000.  The 
award  of  the  commlBsioners  was,  $6,600.  The 
amount  of  land  sought  to  be  taken  was  8.6 
acres. 

The  land  under  condemnation  is  situate  in 
the  extreme  northerly  part  of  the  borough 
of  Ft.  Lee,  Bergen  county,  and  lies  between 
a  line  drawn  parallel  with  the  Hudson  river 
150  feet  west  of  the  high-water  line  of  the 
Hudson  river  and  the  steep  cliffs  of  the 
Palisades.  The  tract  extends  about  980  feet 
along  this  line,  while  the  distance  from  the 
line  to  the  cliffs  is  170  feet  at  the  northerly 
end  and  155  feet  at  the  southerly  end.  Ac- 
cess to  the  land  on  the  west  is  shut  off  by  the 
steep  cliffs.  The  surface  of  the  land  is  a 
steep  slope  from  the  base  of  the  cliffs  to  the 
easterly  boundary.  The  land  Is  bounded  on 
the  east  by  other  lands  of  the  appellant, 
which  extend  easterly  150  feet  to  the  high- 
water  line  of  the  Hudson  river  and  from 
there  to  the  exterior  line  for  solid  filling. 

The  land  In  question  and  the  remainder  of 
the  same  tract  is  wild,  unoccupied  land,  the 
npland  being  covered  with  small  trees,  under- 
brush, and  stones,  the  whole  tract  being  un- 
derlaid  with  slate  and  sandstone,  and  at  the 
westerly   end,   at  an  elevation   of  128  feet. 


with  trap  rock.  There  Is  no  oonummlcatlon 
with  the  land  by  railroad,  trolley,  or  wagon 
road,  none  of  the  land  under  the  Palisades 
north  of  the  tract  has  ever  been  used  for  In- 
dustrial purposes,  and  the  nearest  land  un- 
der industrial  development  Is  2.6  miles  south- 
erly in  the  adjoining  borough  of  Edgewater. 
The  grounds  of  appeal  are  38  in  number. 
They  are  argued,  however,  under  eight  heads 
In  tbe  appellants'  brief.  They  all  challenge 
the  rulings  of  the  trial  court  and  allege  trial 
errors  as  grounds  for  a  reversal  of  the  Judg- 
ment The  principal  ones,  however,  relate 
to  the  court's  exclusion  of  the  opinion  of  ap- 
pellants' experts  as  to  the  value  of  the  land 
taken.  Tbe  witnesses  offered  by  the  appel- 
lants for  this  purpose  were  Mr.  Frederick 
Dunham,  civil  engineer,  Mr.  Floyd  S.  Corbln, 
a  real  estate  broker  of  water  front  and  dock 
properties  in  the  harbor  of  New  York,  Mr. 
John  H.  Ehrehardt,  a  consulting  engineer, 
Mr.  Edlow  W.  Harrison,  a  distinguished  civil 
and  consulting  engineer  (Mr.  Harrison  has 
had  long  and  varied  experience  in  valuing 
railroad  lands  in  New  Jersey  for  taxation 
since  1884,  particularly  as  to  the  value  of 
the  railroad  terminal  lands  In  Hudson  coun- 
ty; he  has  l>een  called  as  an  expert  on  many 
features  of  the  litigation  involving  the  taxa- 
tion of  railroad  property  since  the  passage  of 
the  railroad  tax  act  of  1884),  Mr.  Joseph  E. 
Snell,'a  dvll  engineer  of  Newark,  and  Mr.  P. 
Sanford  Ross,  the  appellant  and  owner  of  the 
property  under  condemnatlcm,  who  is  an  en- 
gineer and  contractor.  Mr.  Dunham  testified 
that  be  had  no  familiarity  with  sales  of  prop- 
erty under  the  Palisades  in  the  vicinity  of 
the  Ross  property;  that  he  had  made  no  ef- 
fort to  keep  in  touch  with  sales  of  land  under 
the  Palisades  in  the  borough  of  Ft  Lee.  Mr. 
Corbin  had  no  familiarity  with  the  sale  of 
any  water  front  property  in  the  borough  of 
Ft.  Lee  or  with  the  sale  of  any  property  any- 
where which  had  tbe  same  physical  charac- 
teristics and  the  same  lack  of  any  means  of 
communication  as  the  property  under  con- 
demnation or  the  tract  of  land  of  which  it 
formed  a  part  Mr.  Ehrehardt  had  not 
bought  or  sold  property  in  Bergen  county; 
he  had  no  knowledge  of  any  sale  of  any  land 
lying  along  the  Hudson  river  anywhere  In 
Bergen  county.  Mr.  Harrison  testified,  that 
the  nearest  property  to  the  Ross  tract  of 
which  he  had  any  knowledge  was  the  Koch 
property,  which  was  located  one  mUe  south 
of  the  Ross  property,  his  familiarity  with  this 
proiierty  l)elng  acquired  by  appraising  It 
He  had  no  familiarity  with  values  of  land 
In  the  borough  of  Ft.  Lee,  except  this  one 
appraisal  of  the  Koch  property.  He  knew  of 
no  sales  of  any  property  similar  or  like  the 
Ross  property.  Furthermore  the  record  does 
not  show  any  question  overruled  by  tbe  trial 
court  put  to  him  as  to  the  value,  but  it  does 
show  that  the  trial  Judge  said  he  would  sus- 
tain tbe  objection.  Mr.  SneU  testified  that 
he  had  never  purchased  or  sold  any  land  In 


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the  Tldnlty  of  the  tract  under  condemnation ; 
that  he  had  no  familiarity  with  the  sale 
price  of  any  land  In  that  vldnlty.  Mr.  Koss 
testified  that  he  had  no  knowledge  of  sales 
of  water  front  property  under  the  Palisades 
north  of  the  land  under  condemnation ;  that 
he  had  made  no  eftort  to  leam  the  sale  prices 
of  such  property;  he  had  no  knowledge  of 
either  values  or  purchase  prices  of  any  prop- 
erty In  the  borough  of  Ft  Lee,  except  the 
piece  under  condemnation  and  the  tract  of 
whldi  it  was  a  part,  which  he  purchased  in 
1882. 

[1]  Hie  primary  question  In  this  case  for 
solution  then  Is  whether,  under  our  cases,  It 
was  error  to  reject  the  opinion  of  these  wit- 
nesses on  the  value  of  the  land  under  con- 
demnation. Who  Is  an  exx>ert  under  our  de- 
cisions must  be  left  very  much  to  the  dis- 
cretion of  the  trial  Judge.  His  decision  is 
conclusive,  imless  clearly  shown  to  be  er- 
roneous In  the  matter  of  law.  Manda  v. 
Delaware,  Lackawanna  &  Western  R.  R.  Co., 
89  N.  J.  Law,  327,  »8  AU.  467 ;  New  Jersey 
Zinc  Co.  v.  Lehigh  Zinc  Co.,  50  N.  J.  Law, 
194,  35  AU,  915;  Elvlns  v.  Delaware,  etc.,  TeL 
Co.,  63  N.  J.  Law,  247,  43  AU.  903,  76  Am.  St. 
Rep.  217;  State  v.  Arthur.  70  N.  J.  Law,  427, 
57  AU.  156. 

[2]  Our  Court  of  Errors  and  Appeals, 
speaking  on  this  precdse  point,  said: 

''Evidently,  in  the  view  of  these  autborides, 
the  meet  material  circumstance  forming  this 
-qualification  of  expert  witnesses  as  to  land  val- 
ues consists  of  the  fact  either  that  the;  have 
themselves  made  sales  or  purchases  of  other 
similar  lands  in  the  neighborhood  of  the  land 
in  question  within  recent  periods,  or  that  they 
have  knowledge  of  such  sales  by  others.  How 
recent  the  occurrence  of  such  sales,  in  point  of 
time,  and  how  near  in  location,  and  how  nearly 
similar  in  comparison  must,  of  course,  vary  with 
the  circumstances  of  each  case,  and  it  is  ther» 
fore  impossible  to  define  a  general  rule  applicable 
to  all  cases."  Brown  v.  New  Jersey  Short  Line 
B.  R.  Co.,  76  N.  J.  Law,  797,  71  Atl.  271. 

[3]  So  the  court  in  speaking  of  a  former 
owner  of  land  for  six  or  seven  years  said: 

"Hence,  to  say  nothing  of  personal  capacity  or 
of  study  or  practice,  there  was  shown  on  his  part 
no  opportunity  to  observe,  and  no  actual  obser- 
vation, in  the  locality  of  the  land  which  fitted 
him  to  speak  of  its  value.  The  witness  tiad  no 
special  knowledge  of  values  which,  being  im- 
parted to  the  jurors,  could  aid  them  in  the  dis- 
charge of  their  duty."  Walsh  v.  Board  of  Edu- 
cation of  Newark,  73  N.  J.  Law,  647,  64  Atl. 
108& 

The  witness  must  have  some  special  knowl- 
edge of  the  subject  about  which  he  Is  called 
upon  to  express  an  opinion.  Crosby  v.  City  of 
Boat  Orange,  84  N.  J.  Law,  708,  710,  87  Atl. 
341;  Elvlns  t.  Delaware,  etc.,  Tel.  Ga,  63 
N.  J.  Lew,  247,  43  Atl.  903,  76  Am.  St.  Rep. 
217. 

A  witness  to  be  an  expert  must  have  more 
than  a  general  knowledge  of  the  subject  un- 
der Investigation.  Authorities  from  other 
jurisdictions  applying  a  different  rule  are  not 
binding  on  this  court  It  Is  sufficient  to  say, 
in  the  language  of  Mr,  Justice  Dixon: 

That,  if  in  other  states  a  more  liberal  rule  is 
applied  respecting  the  opinion  of  witnesses,  as  to 


the  valae  of  real  estate,  "the  worthlessness  of 
such  testimony  is  hardly  a  stronger  reason  for 
its  rejection  than  the  practically  limitless  amount 
of  it  that  might  be  produced."  I>aing  ▼.  United 
New  Jersey  R.  R.,  etc,  Co.,  64  N.  J.  Law,  578, 
25  AU.  409,  33  Am.  St.  Rep.  682. 

In  our  reports  the  rule  has  been  applied  In 
the  following  Illustrative  instances  to  this 
opinion  of  witnesses  on  the  valuation  and 
damage  to  land:  A  witness  has  qualified  as 
an  expert  who  has  a  knowledge  of  sales  of 
lots  and  portions  of  lands  similar  to  and  In 
the  inunedlate  neighborhood  of  the  con- 
demned land.  The  land  so  sold  was  within  a 
radius  of  two  miles  from  the  land  in  question 
and  within  a  period  of  three  years  from  the 
date  of  the  giving  of  the  testimony.  Brown 
▼.  New  Jersey  Short  Line  B.  B.  Co.,  76  N.  J. 
Law,  797,  71  Atl.  271. 

A  farmer  is  not  an  expert  as  to  the  dam- 
age done  to  a  farm  by  the  building  of  a  rail- 
road other  than  for  farming  purposes. 
Pennsylvania  R.  R.  Co.  v.  Root,  53  N.  J. 
Law,  263,  21  Atl.  285.  Real  estate  agents  re- 
siding six  miles  distaitf  from  the  property 
who  had  nothing  to  do  with  property  In  the 
Tldutty  or  anywhere  near  it  are  not  on  the 
question  of  rents.  Haulenbeck  v.  Cronkright, 
23  N.  3.  E}q.  413,  affirmed  25  N.  J.  Eq.  613. 
Ordinary  real  estate  agent  is  not  (is  to  the 
value  of  the  private  title  in  a  strip  of  land 
lying  on  a  public  highway,  separated  by  the 
street  from  private  property,  nor  as  to  dam- 
ages done  to  the  owner  of  the  abutting  prop- 
erty, by  appropriating  that  strip  to  railroad 
purposes.  Laing  v.  United  N.  J.  R.  R.,  eta, 
Co.,  54  N.  J.  Law,  676,  25  Atl.  409,  33  Am.  St 
Rep.  682.  Heal  estate  agent  not  an  expert  to 
give  his  opinion  on  difference  between  value 
of  the  property  either  to  rent  or  sell  estimat- 
ed with  the  railroad  in  the  street  and  the 
value  without  the  railroad  cntompson  v. 
Pennsylvania  B.  B.  Co.,  51  N.  J.  I^w,  42,  15 
AtL  833),  not  gbnTfij  because  witness  resided 
on  the  property  or  because  the  witness  owned 
and  resided  upon  adjoining  property  (UUey 
V.  Camden,  etc.,  Ry.  Co.,  70  N.  J.  Law,  289, 
67  Atl.  445).  A  real  estate  agent  is  not  an 
expert  as  to  the  amount  of  depreciation  caus- 
ed by  the  existence  of  a  sanitary  sewer  run- 
ning through  the  premises.  Morrell  v.  Prels- 
kel,  74  Atl.  994.  Nor  is  a  real  estate  agent 
an  expert  who  is  familiar  with  prices  of 
property  in  the  neighborhood  as  to  the  value 
of  laud  after  the  construction  of  a  tunnel 
with  Its  present  value.  Pennsylvania  B.  B. 
Co.  V.  Schworz,  75  N.  J.  Law,  801,  70  AU.  134. 
The  fact  that  a  real  estate  agent  on  one 
occasion  was  able  to  lease  a  farm  having  a 
water  supply  in  preference  to  one  which  had 
not  affords  no  basis  for  an  opinion  concern- 
ing the  difference  In  rental  value  between  the 
two.  Crosby  v.  City  of  Eaat  Orange,  84  N. 
J.  Law,  710,  87  AtL  34L 

Knowledge  of  real  estate  values  in  the 
locality  does  not  qualify  witness  to  testify 
to  the  diminution  in  value  of  property  by 
reason   of   the  destructldn   of   shade  trees 


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standing  In  the  hlgbway  In  tctmt  of  it  (Bar- 
rough  V.  New  Jersey  Gas.  Co.,  88  N.  J.  Law, 
643,  06  Atl.  885),  or  such  knowledge  In  a 
township  (Van  Ness  v.  New  York,  etc,  TeL 
Co.,  78  N.  J.  Law,  511,  74  AtL  456).  Valua- 
tion of  adjoining  railroad  terminals  is  a  bas- 
ts of  quallflcatlon  of  members  of  Board  of 
Assessors  making  the  valuation.  Long  Dock 
Ck>.  r.  State  Board  of  Assessors,  89  N.  J.  Law, 
108,  87  Atl.  800.  An  experienced  real  estate 
man  of  large  experience  not  an  expert  oa  the 
question  as  to  the  fair  value  of  the  ciHinec- 
tion  and  use  of  a  sewer  condemned.  Park 
Land  Corporation  v.  Mayor,  etc.,  of  Balti- 
more, 128  Md.  611,  88  AtL  167.  A  witness 
with  some  knowledge  of  real  estate  is  not  an 
expert  on  the  value  of  shade  trees.  Elvlas 
V.  Delaware,  etc,  Tel.  Co.,  63  N.  J.  Law,  243, 
43  AU.  803,  76  Am.  St.  Rep.  217. 

From  the  mle  thus  stated  and  its  ai^li- 
cation  made  by  our  courts  It  was  not  error 
for  the  trial  conrt  to  exclude  the  ofi^nlon  of 
these  witnesses  on  the  value  of  the  land  un- 
der condemnation. 

[4]  Nor  was  it  error  to  admit  the  opinicxi 
of  the  witness  William  O.  Allison.  He  had 
bought  and  sold  property  in  the  borough  of 
Ft.  liCe  of  the  same  peculiar  quality.  He 
quallfled  as  an  expert  under  the  cases  above 
dted.  Brown  v.  New  Jersey  Short  Line  R. 
B.  Co.,  76  N.  J.  Law,  787,  71  Atl.  271.  Nor 
was  it  error  to  exclude  evidence  as  to  the 
value  of  the  ataae  in  place,  under  the  case  of 
Manda  v.  Delaware,  etc.,  R.  R.  Co.,  88  N.  J. 
I^w,  327,  88  AU.  467.  Xhe  stone  in  place  is 
a  part  of  the  land.  It  cannot  be  valued  sep- 
arately and  apart  from  the  land.  To  what 
extent,  if  any,  the  value  of  the  land  is  en- 
hanced by  the  stone  may  be  shown.  The 
value  of  the  land  as  stone  land  suitable  for 
quarrying  is  a  proper  subject  of  considera- 
tion both  by  the  witnesses  and  the  Jury  in 
fixing  the  cmoimt  of  Just  compensation  to  be 
awarded,  but  not  the  value  of  the  stone  sep- 
arately and  apart  from  the  laud.  The  value 
of  the  land  is  not  measured  by  such  facts. 
The  stone  la  a  component  part  of  the  land. 
Reading,  etc.,  R.  R.  Ck).  v.  Balthaser,  110  Pa. 
472,  482.  13  Atl.  294,  126  Pa.  1,  10.  17  Atl. 
518;  Norfolk,  etc,  Ry.  Co.  v.  Davis.  58  W. 
Va.  020,  620.  52  a  E.  724;  St  Louis,  etc,  Ry. 
Co.  V.  Cartan  Real  Estate  Co.,  204  Ma  665, 
575,  103  S.  W.  518;  Gardner  v.  Inhabitants 
of  Brookllne,  127  Mass.  358;  Trl-State  Tel., 
etc.,  Co.  V.  Cosgrlflf,  18  N.  D.  771,  124  N.  W. 
75,  26  L.  R.  A.  (N.  S.)  1171;  10  R.  C.  L.  p. 
128,  I  112;  Lewis  on  Eminent  Domain  (3d 
Ed.)  pars.  724,  725;  15  Cyc  758.  The 
cases  cited  as  supporting  a  different  principle 
are  not  in  point  Dewey  v.  Great  Lakes 
Coal  Co.,  236  Pa.  488,  500,  84  Atl.  813;  Cole 
v.  EUwood  Power  Co.,  216  Pa.  283,  290,  65 
Atl.  678;  Seattle,  etc,  R.  R.  Co.  v.  Roeder, 
30  Wash.  244,  70  Pac  498,  94  Am.  St  Rep. 
864.  Nor  was  it  error  to  admit  the  testi- 
mony of  Frank  Clark  whether  the  stone  in 
question  would  make  concrete. 


[t,  <]  So  it  was  not  error  to  admit  in  evi- 
dence the  prices  paid  by  the  condemning  par- 
ty for  s],mllar  lands  in  the  vicinity.  Curley 
V.  Mayor,  etc,  Jersey  City,  83  N.  J.  Law, 
760,  85  AU.  197,  43  L.  B.  A.  (N.  S.)  985;  Had- 
ley  V.  Freeholders  of  Passaic  73  N.  J.  Law, 
187,  62  AO.  1132.  So  it  was  not  error  to  ex- 
clude the  pordiase  price  of  the  Carpenter 
tract  It  was  not  substantially  similar  land 
or  of  the  same  peculiar  quality.  The  pur- 
chase price  included  the  quarry,  machinery, 
and  good  will  of  a  quarry  plant  In  operation. 
Manda  v.  Delaware,  etc.,  R.  R.  Co.,  88  N.  J. 
Law,  327,  08  Atl.  467;  Brown  v.  New  Jersey 
Short  Line  R.  B.  Co.,  76  N.  J.  Iaw,  798.  71 
AU.  271;  Manda  t.  City  of  EJast  Orange,  82 
N.  J.  Law,  687,  82  Atl  869,  Ann.  Cas.  1813D. 
581.  Nor  was  it  error  to  admit  the  opinion 
of  Dr.  H«iry  B.  Kuemmel,  state  geologist  of 
New  Jersey,  with  regard  to  the  danger  of 
stones  falling  from  the  cliffs  along  the  Pali- 
sades at  the  Robs  property.  Nor  was  it  error 
on  cross-examlnaUon  to  permit  the  witness 
Charles  W.  Stanlsforth  to  testify  as  to  the 
speciflcattons  of  the  dock  department  of  New 
York  City.  It  was  admissible  to  test  his 
knowledge  of  the  various  spedflcaUons  which 
he  said  he  had  prepared.  Nor  was  it  error 
to  exclude  Joseph  E.  Snell  from  answering 
the  quesUon,  "In  your  opinion  does  the  tak- 
ing of  the  3.6  acres  from  Mr.  Ross'  property 
injure  the  remaining?"  when  the  witness  was 
permitted  to  answer  the  following  quesUon: 
"Does  the  taking  of  the  3.6  acres  render  this 
property  less  available  for  commercial  pur- 
poses?" Under  the  third  ground  of  appeal 
to  the  witness  Ii^ederlck  Dunham  this  ques- 
tion was  asked:  "Do  you  know  whether  the 
railroad  has  been  laid  out  further  up  the 
river?"  This  was  overruled  on  the  ground 
that  the  best  evidence  as  to  whether  a  rail- 
road had  been  laid  out  would  be  the  papers, 
if  any,  in  the  secretary  of  state's  office.  This 
was  not  error,  but  under  this  bead  counsel 
for  the  appellants  argued  at  some  length  that 
the  trial  court  excluded  relevant  evidence 
tending  to  show  the  adaptability  of  the  land 
for  commercial  purposes.  It  is  sufficient  to 
say,  in  answer  to  this,  that  the  record,  so  far 
as  we  have  been  able  to  find,  does  not  in 
fact  show  any  sudi  evidence  excluded  by  the 
trial  court  Nor  do  we  find  any  error  iu 
the  charge  of  the  court  to  which  error  is 
assigned.  This  is  contained  in  the  thirty- 
first  to  the  thirty-eighth  grounds  of  appeal. 
The  precise  polht  of  alleged  error  In  the 
charge  of  the  trial  court  Is  not  made  clear, 
and  it  hardly  needs  any  extended  discussion. 
The  charge  Is  in  conformity  to  the  cases  in 
our  reports  on  the  points  excepted  to.  Pack- 
ard V.  Bergen  Neck  Ry.  Co.,  54  N.  J.  Law, 
553,  25  Atl.  506;  Manda  v.  City  of  Orange, 
82  N.  J.  Law,  686,  82  Atl.  868,  Ann.  Cas. 
1813D,  581 ;  Manda  v.  Delaware,  etc.,  B.  B. 
Co..  89  N.  J.  Law,  327,  88  AU.  467. 

[7)  The  charge  of  the  court  that  the  Jury 
were  obliged  to  value  the  land  in  the  condi- 
tion in  which  it  was  on  the  12th  day  of  Jan- 


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uary,  1914,  wblch  was  the  date  of  the  flUng 
of  the  petition  and  order  thereon  fixing  the 
time  and  place  for  commencing  the  condem- 
nation proceedings  was  correct,  aa  required 
by  statute  (P.  L.  1900,  p.  81,  |  6;  2  C!omp.  St 
p.  2184,  {  6).  Manda  r.  Delaware,  etc.,  R.  R. 
Co..  89  N.  J.  Law,  327,  98  Atl.  46T. 

Finding  no  error  in  the  record,  the  Judg- 
ment of  the  Bergen  county  circuit  court  is 
afflrmed,  with  costs. 

(90  N.  J.  Law,  SE3) 

ATLANTIC  COAST  ELECTRIC  RX.  CO.  v. 
STATE  BOARD  OF  TAXES  AND  AS- 
SESSMENTS. 
(Supreme  (Tourt  of  New  Jersey.    June  6,  1917.) 

Taxation   <8=>394— Corposation    Fbanchisx 

Tax — Statute. 
Acts  1906  (P.  L.  p.  644)  requiring  an  annual 
franchise  tax  upon  the  annual  gross  receipts  of 
any  street  railway  corporation  or  upon  such  pro- 
portion of  such  gross  receipts  as  the  length  of 
Its  line  in  this  state  upon  any  street,  etc.,  bears 
to  the  length  of  its  whole  line,  was  intended  to 
impose  a  franchise  tax  upon  the  total  of  the 
groes  receipts  of  such  companies,  including  re- 
ceipts from  current  and  power  sold,  in  accord- 
ance with  its  precise  language,  and  not  upon 
gross  receipts  for  transportation,  as  was  the 
rule  under  P.  L.  1903,  p.  232,  since  the  act  of 
1906  was  intended  to  provide  a  specitic  scheme 
for  the  taxation  of  street  railway  corporations 
and  to  differentiate  such  corporations  from  those 
liable  to  a  franchise  tax  under  the  act  of  1903. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  I  669.] 

Certiorari  by  the  Atlantic  Cioast  Electrio 
Railway  Company  against  the  State  Board 
of  Taxes  and  Assessments  to  review  the 
assessment  of  a  franchise  tax.    Tax  affirmed. 

Argued  February  term,  1917,  before 
SWATZB,  MINTURN,  and  KALISCH,  JJ. 

Durand,  Ivlns  &  Carton,  of  Asbury  Park, 
for  prosecutor.  John  W.  Wescott  Atty.  Gen., 
for  the  State. 

SWAYZE,  J.  The  prosecutor  was  taxed 
under  the  act  of  1906  (P.  L.  644)  upon  gross 
receipts  amounting  to  $363,742.35.  Of  this 
amount  $67,752.55  was  receipts  from  current 
and  power  delivered  to  the  Atlantic  Coast 
Electric  Light  Ck>mpany.  The  prosecutor 
claims  that  this  last  amount  should  not  be 
Included  in  the  gross  receipts  upon  which  the 
franchise  tax  is  to  be  estimated.  The  lan- 
guage of  the  statute  plainly  requires  an  an- 
nual franchise  tax  upon  the  annual  gross 
receipts  of  any  street  railway  corporation  or 
upon  such  proportion  of  such  gross  rec^pts 
as  the  length  of  its  line  in  this  state  upon 
any  street  highway,  road,  lane,  or  other 
public  place  bears  to  the  length  of  Its  whole 
line.  The  argument  of  the  prosecutor  is  that 
although  this  language  is  clear,  the  tax 
should  be  computed  only  upon  the  gross  re- 
ceipts for  transportation,  because  this  was 
the  rule  under  the  act  of  1903  (P.  L.  232). 
The  answer  Is  that  the  act  of  1906  was  in- 
tended to  provide  a  specific  scheme  for  the 


taxation  of  the  street  railway  corporations 
and  to  differentiate  such  corporations  from 
corporations  liable  to  the  franchise  tax  under 
the  act  of  1903.  The  Legislature  had  before 
them  the  latter  act  and  carefully  omitted 
the  words  indicating  that  the  tax  should  be 
calculated  on  receipts  for  transportation. 
No  inference  can  be  drawn  from  this  omission 
except  that  the  Legislature  meant  that  the 
tax  should  be  imposed  upon  the  total  of  the 
gross  receipts  in  accordance  with  its  precise 
language,  which  cannot  be  explained  away  by 
a  mere  guess  at  the  possible  intent  to  the  con- 
trary. This  Is  borne  out  by  the  fact  that  un- 
der the  act  of  19(X)  (page  602),  which  was  the 
original  franchise  tax  act  for  corporations  of 
this  character,  a  distinction  was  made  be- 
tween oil  and  pipe  line  corporations  whldi 
were  required  to  report  gross  receipts  for 
transportatlcm  of  oil  and  petroleum,  and  oth- 
er corporations  whldi  were  required  only 
to  report  gross  receipts.  The  act  of  1900 
was  before  this  court  in  Paterson  ft  Passaic 
Gas  Company  v.  Board  of  Assessors,  69  N.  J. 
Law,  116,  54  Atl.  246,  and  It  was  held  that 
gross  receipts  included  all  gross  receipts. 
The  tax  is  affirmed,  with  coats. 


07  N.  3.  Bq.  30}) 
In  pe  CHRISTIE'S  ESTATE.    (No.  8679.) 

(Ehrerogative  Court  of  New  Jersey.    April  30, 
1917.) 

1.  Taxation  «=>895(6)  —  iNHKarrANcs  Tax  — 
Right  Taxed— Statute. 

The  tax  imposed  by  Transfer  of  Property 
Tax  Act  AprU  20,  1909  (P.  L.  p.  325),  is  on  the 
right  of  inheritance,  on  the  beneficiary  for  the 
privilege  of  succeeding  to  the  property,  and  is 
measured  by  the  clear  market  value  of  the  prop- 
erty transferred,  ascertained  by  deducting  from 
the  gross  value  of  the  residue  all  lawful  charges, 
exemptions,  and  costs  of  winding  up  the  estate. 
[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  {  1719.] 

2.  Statutes  iS=»226  —  Adoption  fbom  Otheb 
State— Pbesumption. 

Where  a  statute  was  copied  from  the  stat- 
ute of  another  state,  it  will  be  presumed  that 
the  judicial  construction  given  to  the  statute  in 
such  other  state  was  adopted  by  the  Legislature 
when  it  adopted  the  statute. 

[Ed.    Note.— For   other   cases,   see    Statutes, 
<3ent  Dig.  {  S07.1 

3.  Taxation  «=s>895(7)  —  Inhebitancb  and 
Tkansfeb  Taxes  —  Sttkohaboino  Assess- 
ment WITH  Teustee's  Commissions — Stat- 
ute. 

Under  Transfer  of  Property  Tax  Act  f  4, 
providing  that  whenever  a  decedent  appomta 
executors  or  trustees  and  devises  property  to 
them  in  lieu  of  their  commissions  or  allowances 
whidi  otherwise  would  be  liable  to  the  tax,  or 
appoints  them  his  residuary  legatees,  and  the 
bequest  devise,  or  residuary  legacy  exceeds  what 
would  be  reasonable  compensation  for  their 
services,  the  excess  shall  be  liable  to  the  tax,  the 
commissions  of  testamentary  trustees  diminish 
the  inheritance,  and  are  to  be  taken  into  con- 
sideration and  allowed  In  fixing  the  value  of  the 
succession,  and  at  the  proper  time  the 


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65 


ment  of  the  tax  maj  be  surcharged  with  the 
trustee's  commissions. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dif.  {  1719.] 

4.  Taxation  $=>895(7)  —  Inrkbitancb  and 

TSANBTEB  TaXBS  —  PHACTICK  OF  CoMPTB01> 
LEB'S  DKPAKTIOENT  —  AlXOWANCK  0¥  COBTB 
OF  WlROINQ  UF  ESTATK8. 

The  practice  in  the  comptroUer'a  department 
4^  approximating  and  allowing  in  the  assess- 
ment of  inheritance  taxes  the  costs  of  winding 
up  estates  is  unwarranted  in  law,  it  being  the 
comptroller's  duty  to  await  the  final  judgment 
of  the  proper  tribunal. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  i  1719.] 

In  the  matter  of  tbe  estate  of  Robert 
Christie,  deceased.  From  an  appraisement 
of  property  transferred  by  decedent's  will 
and  an  assessment  thereon  of  a  tax  under 
the  Transfer  of  Property  Tax  Act  of  1909, 
an  appeal  Is  taken.    Appeal  dismissed. 

Herbert  M.  Lloyd,  of  New  York  Caty,  for 
api)ellant8.  Herbert  Boggs,  Asst.  Atty.  Gen., 
for  the  State. 

BACKBS,  Vice  Ordinary.  Tbls  Is  an  ap- 
peal from  an  appraisement  of  property  trans- 
ferred by  the  last  will  and  testament  of  Rob- 
ert Christie,  deceased,  and  an  assessment 
thereon  of  a  tax  under  the  Transfer  of  Prop- 
erty Tax  Act  of  1909  (P.  li.  326). 

The  decedent  died  May  12,  1915,  a  resi- 
dent of  Montdair,  leaving  a  last  will  and 
testament,  wherein,  after  pecuniary  legacies, 
he  bequeathed  the  rest  of  his  estate  to  his 
executors  in  trust,  to  pay  one-third  of  the  net 
Income  to  bis  wife  for  life,  remainder  over 
absolutely  to  his  next  of  kin  and  heirs  at  law 
her  surviving,  and  the  net  income  of  the  re- 
maining two-tblrds  to  his  wife  so  long  as  she 
remained  his  widow,  with  similar  remain- 
der over  upon  remarriage  or  death.  The 
taxable  Interests  were  appraised  at  $60,- 
4t9.17,  of  which  $44,386.20  was  apportioned 
to  the  residuary  estate.  The  contention  of 
the  appellants — the  executors  and  trustees — 
is  that  the  latter  sum  should  be  reduced  by 
6  per  cent,  the  amount  of  commission  they 
estimate  will  be  allowed  to  them  for  their 
services  as  trustees. 

[1 ,  2]  The  tax  imposed  by  the  act  is  on  the 
right  of  inheritance — on  the  beneficiary — for 
the  privilege  of  succeeding  to  the  property 
{Sawtcr  ▼.  Shoenthal,  83  N.  J.  Law,  499.  83 
Atl.  1004;  Carr  v.  Edwards,  84  N.  J.  Law, 
667,  87  Atl.  132),  and  is  measured  by  the 
"dear  market  value"  of  the  property  trans- 
ferred ;  ascertained  by  deducting  from  tbe 
gross  value  of  the  residue  all  lawful  charges, 
exemptions  and  costs  of  winding  up  the  es- 
tate. As  to  remuneration  to  trustees  for  ad- 
ministering trusts  created  by  will,  inasmuch 
as  the  office  and  duties  are  separate  and  dis- 
tinct from  those  of  executors,  and  as  statu- 
tory commissions  are  allowed  in  each,  al- 
though the  same  x>er8on  may  have  acted  in 
both  capacities  (Pitney  v.  Everson,  42  N.  J. 


Eq.  3«l,  7  AtL  860),  if  I  were  to  fdlow  my 
own  opinion,  my  Judgment  would  be  that 
they  were  to  be  paid  out  of  tbe  estate  for 
whose  benefit  the  services  were  rendered. 
But  the  New  York  courts  decided  otherwise, 
and  have  held  that  the  commissions  of  testa- 
mentary trustees  diminish  the  inheritance, 
and  are  to  be  taken  into  consideration  and 
allowed  in  fixing  the  value  of  tbe  succession, 
and  as  our  Transfer  of  Tax  Act  was  copied 
from  the  statute  of  that  state,  it  will  be  pre- 
sumed that  the  Judicial  construction  there 
given  to  the  latter  was  adopted  by  our  Leg- 
islature. De  Raismes  v.  De  Raismes,  70  N. 
J.  Law,  15,  56  Atl.  170;  Oay  v.  Edwards,  84 
N.  J.  Law.  221,  86  Atl.  548.  In  the  Matter 
of  Gihon,  64  App.  Dlv.  504,  68  N.  Y.  Supp. 
381,  72  N.  Y.  Supp.  1104,  the  trust  was  similar 
to  the  one  in  this  case,  and  on  an  appeal 
from  an  assessment  which  included  commis- 
sions to  which  the  executors  would  be  en- 
titled as  trustees,  the  surrogate  held  that: 

"The  right  to  commissions  as  trustees  is  statu- 
tory, and  cannot  be  taken  away  except  for  mis- 
conduct in  office,  or  as  a  penalty  for  relinquish- 
ing office.  They  are  a  legal  and  preferential 
charge  against  the  trust  estate.  The  property 
passes  to  the  beneficiaries  subject  to  their  pay- 
ment. Bearing  in  mind  the  cardinal  principle 
that  the  transfer  tax  is  to  be  measured  by  tbe 
amount  the  legatee  is  legally  entitled  to  re- 
ceive, and  that  the  law  permits  the  transfer  to 
legatees  through  the  medium  of  trusts,  I  can  see 
no  reason  why  the  rule  which  permits  tlie  com- 
missions of  executors  and  administrators  to  be 
deducted  should  not  apply  equally  as  well  to 
commissions  of  trustees.' 

Tbe  Appellate  Division  of  the  Supreme 
Court  affirmed  the  Judgment  on  the  opinion 
of  tbe  surrogate,  and  on  an  appeal  to  the 
Court  of  Appeals,  Judge  CuUen,  speaking  for 
the  court,  said: 

"There  is  a  distinction  that  may  be  made  be- 
tween the  commissions  of  executors  or  adminis- 
trators whose  appointment  is  an  absolute  essen- 
tial to  the  lawful  liquidation  of  an  estate  and 
those  of  trustees  who  are  appointed  solely  for 
the  protection  of  the  property  of  the  beneficiary, 
and  it  may  be  urged  that  such  latter  commissions 
should  be  considered  as  an  expenditure  for  his 
benefit.  Whatever  force  there  may  be  in  this 
view,  we  think  the  deduction  of  the  trustees' 
commissions  is  justified  and  required  by  section 
227  of  tbe  Tax  Law  itself,  which  prescribes  that 
any  legacy  or  devise  to  trustees  in  excess  of  their 
commissions  allowed  by  law  shall  be  taxable, 
thus  necessarily  implying  that  legal  commissions 
shall  be  exempt."  Matter  of  Gihon,  169  N,  Y. 
443,  62  N.  E.  561. 

Section  227  (Transfer  Tax  Law  [Laws  1896, 
c.  908])  referred  to  corresponds  with  section 
4  of  our  act  (4  Comp.  St.  1910,  p.  5305,  i  540). 
See,  also,  Matter  of  SllUman,  79  App.  Dlv. 
98,  80  N.  Y.  Supp.  336.  The  Gihon  Case  was 
decided  In  1902,  and  construed  the  act  of 
1896.    ChrysUe  on  Inh.  Tax.  437. 

The  Attorney  General  argues  that  this 
presumption  should  not  be  indulged,  because 
the  commissions  of  testamentary  trustees  are 
r^ulated  in  New  York  by  statute,  whereas 
in  this  state  they  are  fixed  by  the  courts. 
Section  2753  of  the  Code  of  Civil  Procedure 


101A.-6 


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101  ATIiANTIO  RBPOBTBB 


(N.J. 


directs  that  surrogates  "on  Che  settlement 
of  the  account  of  any  executor,  adminis- 
trator, guardian  or  testamentary  trustee,  the 
surrogate  *  ♦  •  must  allow  to  such  ex- 
ecutor, administrator,  guardian  or  testamen- 
tary trustee  for  bis  services  In  such  official 
capacity  •  •  ♦  for  receiving  and  paying 
out  all  sums  of  money  •  •  •  "  at  the  rate 
of  5,  2%,  and  1  per  cent,  according  to  the 
amount.  Section  128  of  our  Orphans'  Court 
Act  (C.  S.  3859)  provides  that  "the  allowance 
of  commissions  to  executors,  administrators, 
guardians  or  trustees  shall  be  made  with 
reference  to  their  actual  pains,  trouble  and 
risk  in  settling  such  estate,  rather  than  In 
respect  to  the  quantum  of  estate,"  and  In 
the  next  section  limits  the  rate  by  a  sliding 
scale.  As  these  enactments  simply  change 
the  rule  of  the  common  law  by  allowing  a 
reward  to  executors  and  trustees  (Warbass 
T.  Armstrong,  10  N.  J.  Eq.  263),  I  am  unable 
to  perceive  how  the  difference  In  methods  of 
arriving  at  the  amount  of  compensation  can 
Influence  In  the  least  the  application  of  the 
established  rule  of  construction  that  the 
adoption  of  a  statute  of  a  sister  state  la  pre- 
sumed to  have  been  had  with  reference  to  the 
previous  construction  given  to  such  statute 
by  the  court  of  such  state,  or  how  it,  in  any 
manner,  affects  the  principle  Involved  and 
the  rule  laid  down  la  the  cases  last  dted. 
In  the  amount  of  the  allowances  there  is,  so 
far  as  they  may  reckon  In  the  assessment,  as 
much  uncertainty  In  the  one  Instance  as  in 
the  other.  In  the  one  the  problem  encounter- 
ed is  what  will  be  the  sums  of  the  corpus 
passing  from  the  executors  to  the  trustees, 
and  of  the  accumulations  pending  the  trust, 
to  which  the  rate  applies ;  and  in  the  other, 
what  amount  will  the  court  fix?  It  must  not 
be  overlooked  that  assessments  are  made  un- 
der the  respective  statutes  forthwith  after 
probate,  and  at  a  time  when  these  items  are 
wholly  problematical  and  necessarily  must  be 
adjusted  supplementally.  For  this,  purpose 
New  Xork  has  correctional  facilities,  as  ,we 
have.  There  the  surrogate  may  modify  the 
assessment  from  time  to  time,  as  the  occasion 
requires.  Matter  of  Sllllman,  supra.  Here 
that  function  is  vested  in  the  comptroller  by 
section  15.  Under  section  2  of  our  act,  the 
tax  assessed  upon  remainders  is  not  payable 
until  the  remainderman  becomes  entitled  to 
the  actual  possession  or  enjoyment  of  the 
property,  and  under  section  15  the  comptrol- 
ler may  refimd  any  tax  erroneously  paid,  pro- 
vided that  application  therefor  be  made  with- 
in two  years  from  the  date  of  payment 
These  remedial  provisions  obviously  furnish 
ample  opportunity  to  trustees  to  have  their 
compensation  settled,  upon  accounting,  and 
the  assessments  revised. 

[3]  Holding,  as  I  do,  that  at  the  proper 
time  the  assessment  may  lie  surcharged  with 
the  trustees'  commissions,  leads  to  the  con- 
clusion that  the  appellants  were  premature 


In  their  demands  upon  the  comptroller,  and 
that  their  appeal  must  be  dismissed. 

[4]  A  practice  prevails  In  the  comptroller's 
department  of  approximating,  and  allowing 
in  the  assessment,  the  cost  of  winding  up  es- 
tates, which  coarse  the  appellants  contend 
should  have  been  pursued  in  this  instance. 
All  that  need  be  said  is  that  the  practice, 
notwithstanding  Its  merits  in  accelerating 
settlements,  is  not  warranted  in  law,  and 
resting,  as  it  does,  wholly  upon  conjecture 
and  the  merest  guesswork,  must  often  work 
Inequities  to  the  state  or  the  party  assessed. 
Strictly  speaking,  the  department  has  no 
more  the  right  to  anticipate  the  probate 
court's  action  than  it  has  to  adjust  a  dalm 
against  an  estate  for  nnllquldated  damages, 
which  I  understand  it  never  undertakes  to  da 
In  either  event,  it  is  the  duty  of  the  comp- 
troller to  await  the  final  Judgment  of  the 
proper  tribunal. 

The  appeal  will  be  dismissed,  with  costs. 


(ST  N.  J.  Bq.  2t7) 
In  re  I>rrrMAN*S  EX-RS.     (No.  3690.) 

(Prerogative  Court  of  New  Jersey.     May  10, 
1917.) 

(BvUabu»  hv  tlie  Court.) 

h  Taxation   «=3900(5)— iNHKarrAWCB  Tax— 

Appeai.  to  Obdinaby. 
The  appeal  to  the  ordinary  from  an  nRsess- 
ment  of  a  transfer  tax,  under  the  Inheritance 
Transfer  Tax  Act  (Act  AprU  20,  1909  [P.  L. 
p.  334])  I  18,  is  an  appeal  to  the  Prerogative 
Court,  because  the  ordinary  is  the  judge  of  that 
court,  and  the  proceedings  are  in  that  court 

[Ed.   Note. — For   other   cases,   see  Taxation, 
Cent  Dig.  !|  1722,  1723.] 


2.  JUDQEs  iS=>25(l)— New  Jbrset— Jdbisdic- 
TioN  OF  Vice  Okdimaet. 

Although  the  office  of  vice  ordinary  is  the 
creature  of  statute,  the  jurisdiction  of  the  vice 
ordinaries  arises  from  reference  to  them  of 
matters  by  the  ordinary  in  virtue  of  his  inher- 
ent powers,  and  their  jurisdiction  is  complete 
by  delegation  from  him. 

[Ed.  Note. — For  other  cases,  see  Judges,  Cent. 
Dig.  !§  99,  105.  105%,  106.] 

3.  Taxation  «=»900(5)— iNHEBrrANCE  Tax— 
AprEAii  TO  Obdinaby— Vauditt  of  Stat- 
ute. 

The  giving  of  an  appeal  to  the  ordinary  in 
the  inheritance  transfer  tax  act  is  a  valid  legis- 
lative enactment 

[Ed.  Note.— For  other  coses,  see  Taxation, 
Cent  Dig.  H  1722,  1723.] 

4.  Appeal  and  Ebbob  «=»1— "Appeax." 

Au  "appeal"  is  a  judicial  proceeding  cogniz- 
able in  a  court 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  %%  1-4. 

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

6.  Appbai.  to  Obdinabt. 

Sembie,  Tliat  the  appeal  to  the  ordinary 
provided  for  in  Inheritance  Transfer  Tax  Act, 
§  18,  makes  him  a  statutory  tribunal,  and  that 
an  appeal  from  a  decree  of  the  Prerogative 
Court  m  a  case  under  that  act  is  reviewable  by 
certiorari  in  the  Supreme  Court  instead  of  by 
appeal  to  the  Court  of  Errors  and  Appeals. 


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IN  BE  DITTMAN'S  SX'BS 


67 


Aiipeal  by  fbe  execatora  of  Henry  I.  Dltb- 
man,  deceased,  to  review  the  inheritance  tax 
on  property  passhig  nnder  the  wllL  Jmto- 
dlctlonal  question  detecmlned,  and,  on  ap- 
pUcatUm  of  counsel,  a  day  to  be  designated 
for  hearing  the  facts. 

MaxImllUan  T.  Rosenberg,  of  Jersey  City, 
for  appellant  Herbert  Boggs,  Asst  Atty. 
Gen.,  for  the  State. 

LEWIS,  Vice  Ordinary.  [1]  rrom  an  In- 
heritance transfer  tax  apon  the  estate  pass- 
ing under  the  will  of  the  late  Henry  I.  Dltt- 
man,  deceased,  his  executors  appeal  to  the 
ordinary,  under  section  18  of  the  Inheritance 
Transfer  Tax  Act  (P.  L.  1909,  p.  334).  That 
section  provides  that  any  person  or  corpo- 
ration dissatisfied  with  an  appraisement  or 
assessment  under  the  act  may  appeal  there- 
from to  the  ordinary. 

The  appellants,  Dittman's  executors,  con- 
tend that  constltutlonaUy  they  could  not  be 
compelled  to  appeal  to  the  ordinary;  that 
they  could  have  recourse  to  a  writ  of  certio- 
rari to  review  the  assessment  of  which  they 
complain ;  that  the  ordinary  is  an  official  to 
whom  they  are  permitted  to  resort  as  an 
un^ire  by  consent  of  the  state. 

The  respondent,  the  comptroller  of  the 
treasury,  contends  that  on  this  appeal  the 
ordinary  does  not  sit  as  sndi,  exercising  the 
powers  and  Jurisdiction  of  the  ordinary  or 
of  the  Prerogative  Court ;  that  the  appeal  is 
not  to  the  Prerogative  Court,  and  that  the 
petition  is  Improperly  so  entitled;  and  also 
that  the  ordinary  cannot  refer  the  matter  to 
a  vice  ordinary.  These  contentions  are  un- 
sound. The  ordinary  is  the  Judge  of  the 
Prerogative  Court,  and  consequently  the 
court  itself.  The  Constitution  so  provides 
(article  6,  }  4,  par.  2). 

In  England  in  former  times  the  ordinary 
and  the  Judge  of  the  Prerogative  Court  were 
different  functionaries.  In  2  Bl.  Com.  609, 
the  learned  author  says: 

"If  all  the  goods  of  the  deceased  lie  within 
the  same  jurigdictioD,  a  probate  before  the  ordi- 
aary,  or  an  administration  granted  by  him,  are 
the  only  proper  ones ;  but  if  the  deceased  had 
bona  notabilia,  or  chattels  to  the  value  of  a 
hundred  Bhilllngs,  in  two  distinct  dioceses  or 
jurisdictions,  then  the  will  must  be  proved, 
or  administration  taken  out,  before  the  metro- 
politan of  the  province,  by  way  of  special  pre- 
rogative, whence  the  courts  where  the  validity 
of  such  wills  is  tried,  and  the  offices  where  they 
are  registered,  are  called  the  Prerogative  Courts, 
and  prerogative  offices." 

And  in  3  Bl.  Oom.  65: 

"The  Prerogative  Court  was  established  for 
the  trial  of  all  testamentary  causes,  where  the 
deceased  hath  left  bona  notabilia  within  two 
different  dioceses.  In  which  cases  the  probate 
of  wills  belongs,  as  we  have  formerly  seen,  to 
the  archbishop  of  the  province,  by  way  of  spe- 
cial prerogative.  And  all  the  causes  relating 
to  the  wills,  administrations,  or  legacies  of  such 
persons  are  originally  cognizable  herein,  before 
a  judge  appointed  by  the  archbishop,  called  the 
judge  of  the  Prerogative  Court." 

But  In  our  state  the  ordinary  and  Judge 
of  the  Pr^o^tlve  Conrt  are^  and  always 


have  been,  one  and  the  same,  and  their  pow- 
ers— that  Is,  their  Jurisdictions — have  been 
blended  also.  Tills  is  expressly  stated  by 
Mr.  Justice  Van  Syekel  in  his  concurring 
opinion  in  Harris  v.  Vanderveer's  Ex'r,  21  N. 
J.  Eq.  424,  at  page  447,  where  he  says  that: 
"The  power  of  the  ordinary  and  the  preroga- 
tive Court,  which  existed  separately  under  the 
English  system,  have  been  blended  here." 

The  blending  of  the  ordinary  and  Judge  of 
the  Prerogative  Court  into  one  and  the  same 
functionary,  and  also  their  powers  Into  one 
Jurisdiction,  in  our  state  resulted  from  the 
fact  that  such  of  the  ecclesiastical  Jurisdic- 
tion In  England,  which  was  transmitted  to 
the  colony,  was  confided  to  the  Governor, 
whose  Jurisdiction  was,  ef  course,  state-wide. 
Grift.  U  B.  (N.  J.)  1185,  where,  in  note  1, 
the  learned  author  states: 

"The  jurisdiction  of  the  governor  as  the  ordi- 
nary of  New  Jersey,  before  the  Revolution  and 
since,  extended  throughout  the  state,  and  a 
will,  administration,  or  guardianship  proved 
or  granted  by  himself  or  a  surrogate  (and  he  ap- 
pointed as  many  as  be  chose  to  do)  was  valid, 
without  r^ard  to  the  place  where  the  goods  lay. 
Hence  he  possessed  the  prerogative  powers  of 
the  ecclesiastical  jurisdiction  m  these  particu- 
lars." 

The  state,  and  the  colony  before  It,  was 
divided  into  counties,  and  the  Jurisdiction  of 
the  ordinary — there  never  has  been  but  one 
at  the  same  time — did,  and  does,  run  through 
all  the  counties.  In  colonial  times,  and  later, 
the  surrogates  were  appointed  by  the  ordi- 
nary as  his  deputies,  and  they  had  Jurisdic- 
tion in  all  cases  submitted  to  them  unless 
some  special  restrictions  were  Inserted  In 
their  commissions.  As  already  remarked,  the 
doctrine  of  bona  notabilia  never  bad  any 
place  here.  In  re  Coursen's  Will,  4  N.  J. 
Eq.  406,  413.  And,  although  surrogates  were 
later  made  county  officers  with  probate  Ju- 
risdiction limited  to  their  respective  counties, 
that  in  no  wise  affects  the  Jurisdiction  of  the 
ordinary. 

The  first  act  of  the  Legislature  concerning 
the  ordinary  and  the  Prerogative  Court, 
passed  December  16,  1784  (Pat.  Laws,  59), 
expressly  enacted  in  section  2  that: 

"For  the  more  regular  hearing  and  determin- 
ing of  all  causes,  cognizable  before  the  ordi 
nary,  he  shall  statedly  bold  a  Prerogativi 
Court,"  etc. 

See  the  present  act,  entitled: 

"An  act  respecting  the  Prerogative  Court  aivd 
the  power  and  authority  of  the  ordinary  (Revi- 
sion of  1900)."  Comp.  Stat.  p.  1722,  i  77  et 
seq. 

The  first  section  defines  the  authority  of 
the  ordinary  as  to  granting  probate  of  wills, 
etc.,  and  tbe  tenth  provides  that  It  shall  be 
the  duty  of  the  register  of  the  Prerogative 
Court  to  record  all  wills,  etc.  Ttmt  the  ordi- 
nary holds  a  court  in  granting  probate  is 
beyond  question.  The  function  is  Judicial, 
and  therefore  must  be  exercised  In  a  court. 
Even  the  surrogate  holds  a  court  when  pro- 
bating a  wiU.  Mellor  v.  Kalghn  (Err.  & 
App.)  99  Atl.  207. 

[2]  The  contenti(oa  that  tha  ordinary  la 


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101  ATLAHma  KSPOBXKB 


(N.J. 


wlthont  power  to  tefer  tbe  matter  at  bar  to 
a  vice  ordinary  is  also  unsound.  Tbe  con- 
tention la  tliat  because  tbe  appeal  is  given 
in  terms  to  the  ordinary,  and  that  no  power 
to  refer  it  is  given  in  the  same  statute,  the 
right  does  not  exist  Ttils  is  fallacious,  for 
by  act  of  1913  (P.  U  p.  81)  the  ordinary  Is 
empowered  to  refer  any  matter  pending  in 
the  Prerogative  Court  to  a  vice  ordinary  for 
bearing  and  advloe,  but  the  Jurisdiction 
which  the  vice  ordinaries  exercise,  upon  ref- 
erence to  them,  is  not  derived  from  this  stat- 
ute, but  by  delegation  from  the  ordinary  by 
virtue  of  bis  inherent  powers. 

In  an  exhaustive  review  of  the  powers  of 
the  vice  chancellors  (whose  office  was  like- 
wise created  by  statute),  In  Re  Thompson,  85 
N.  J.  Eq.  221,  96  Atl.  102,  CSianceUor  Walker, 
at  page  257,  holds  that: 

"Their  jurisdiction  is  complete  by  delegation 
from  the  cliancellor  under  the  authority  inhering 
in  his  general  power  derived  from  the  High 
Court  of  Chancery  in  England  and  devolved 
upon  our  Court  of  Chancery  by  the  ordinances 
of  Lord  Combury  and  Governor  Franltlin,  and 
ratified  by  tha  Constitutions  of  1776  and  1844." 

And  at  page  261  of  85  N.  J.  Eq.,  96  Atl. 
102,  he  holds  that  a  perfect  analogy  exists 
with  reference  to  the  Prerogative  Court,  in 
which  the  Legislature  has  authorized  the  ap- 
pointment of  vice  ordinaries,  the  ancient  of- 
flce  of  surrogate,  as  deputy  or  assistant  to 
the  ordinary,  being  the  source  of  power  in 
the  vice  ordinaries. 

It  is  to  be  observed  that  in  the  act  creat- 
ing the  office  of  vice  ordinary  (P.  L.  1913,  p. 
81)  the  Legislature  lias  provided  that  the  or- 
dinary may  refer  to  any  vice  ordinary  any 
cause  or  other  matter  which  at  any  time  may 
be  pending  in  the  Prerogative  Court,  to  bear 
the  same  for  the  ordinary  and  report  thereon 
to  him  and  advise  what  order  or  decree 
should  be  made  therein.  Now,  if  the  ordi- 
nary is  a  functionary  apart  from  himself  as 
the  judge  of  the  Prerogative  Court,  It  is 
singular  that  the  lawmaking  body  did  not 
bestow  the  power  to  refer  upon  the  judge  of 
the  Prerogative  Court,  the  wily  functionary 
Who  in  such  case  could  constitutionally  exer- 
cise It,  Instead  of  casting  it  upon  the  ordina- 
ry, who  could  not  lawfully  do  so.  In  this 
we  have  legislative  Interpretation  to  the  ef- 
fect that  the  ordinary  and  judge  of  the  Pre- 
rogative Court,  and  likewise  their  Jurisdic- 
tion, are  one  and  the  same. 

Enough  has  been  shown,  I  think,  to  demon- 
strate that  the  act  under  which  this  assess- 
ment was  made,  and  which  gives  an  appeal 
to  the  ordinary,  treats  the  ordinary  and  the 
Prerogative  Court  as  one  and  the  same — a 
single  Judicial  entity. 

[3]  The  giving  of  an  appeal  to  the  ordi- 
nary in  the  inheritance  transfer  tax  act  Is  a 
valid  legislative  enactment 

It  may  be  that  certiorari  in  the  Supreme 
Court  is  a  method  for  the  review  of  an  ap- 
praisement or  tax  made  or  levied  under  the 
inheritance  transfer  tax  act,  but  considering 
that  an  appeal  has  been  provided  to  the  or- 


dinary, the  Supreme  Court  would  probably 
deny  the  allocatur  on  such  a  writ  tiefore,  or 
even  after,  the  time  for  appeal  to  the  ordi- 
nary had  expired,  as  the  allowance  of  an  al- 
locatur  is  discretionary.  Florenzie  v.  East 
Orange,  88  N.  X  Law,  438,  97  Aa  260. 

In  Re  Prudential  Ins.  Co.  of  America,  82 
N.  J.  Bq.  335,  88  Atl.  970,  the  Court  of  Er- 
rors and  Appeals  held  that  the  statutory 
scheme  providing  for  tbe  condemnation  of 
the  capital  stock  of  a  stock  lUe  insurance 
company  for  certain  purposes  mentioned  was 
cast  by  the  Legislature  upon  the  chancellor, 
or  the  Court  of  Chancery,  a  distinction  which, 
if  it  exists,  was  of  no  practical  moment  to 
the  motion  then  l>efore  the  Court  of  Errors 
and  Appeals,  and  at  page  339  that  the  statu- 
tory proceeding  before  that  court  was  review- 
able by  certiorari  only,  regardless  of  the  fact 
that  one  of  the  agencies  that  took  part  in  It 
was  the  "Court  of  Chancery." 

I  hold  that  the  proceeding  before  me  is  one 
In  the  Prerogative  Court,  and  one  which  the 
ordinary  could  lawfully  refer  by  virtue  of 
the  act  of  1913  (P.  L.  p.  81)  empowering  him 
to  refer  to  any  vice  ordinary  any  cause  or 
other  matter  which  at  any  time  might  be 
pending  in  the  Prerogative  Court 

Now,  the  act  of  1909  (P.  L.  pw  325)  pro- 
vides for  taxing  the  transfer  of  property  of 
decedents  by  devise,  descent,  etc,  and  section 
18,  as  seen,  allows  any  one  dissatisfied  with 
an  a^essment  of  such  taxes  to  appeal  to  tbe 
ordinary.  The  only  question  raised  by  such 
an  appeal  is  as  to  whether  or  not  the  assess- 
ment is  excessive,  and  the  review  of  such  a 
question  may  be  devolved  upon  a  court  of  ap- 
peal. Florenzie  v.  East  Orange,  88  N.  J. 
Law,  438,  97  Atl.  260.  There  an  appeal  from 
an  assessment  for  l>eneflts  for  a  municipal 
improvement  was  confided  to  the  circuit 
court,  and  tbe  jurisdiction  tlms  given  was 
upheld.  Here  an  appeal  from  the  assess- 
ment of  a  property  transfer  tax  is  confided 
to  the  ordinary  of  the  Prerogative  Court 
The  principle  is  tbe  same.  The  grant  of  ap- 
pellate jurisdictloa  to  this  court  in  tax  trans- 
fer matters  Is  as  valid  as  that  to  the  circuit 
courts  in  assessments  for  municipal  improve- 
ments. 

[4]  The  reason  that  legislation  establish- 
ing special  statutory  tribunals  for  tbe  hear- 
ing and  determining  of  appeals  theretofore 
cognizable  only  In  the  Supreme  Court  on  cer- 
tiorari is  valid  is  because  a  review  of  the 
decision  of  the  special  tribunal  is  removable 
into  the  Supreme  Court  by  certiorari,  and 
that  court's  jurisdiction  on  certiorari  Is  there- 
fore not  Impaired.  Certiorari  in  such  cases 
Is  in  tbe  nature  of  an  appeal,  and  an  appeal 
is  a  Judicial  proceeding  cognizable  in  a  court 

[i]  It  would  appear  that  tbe  decree  of  the 
Prerogative  Court  on  these  appeals  Is  re- 
viewable by  certiorari  in  the  'Supreme  Court, 
instead  of  by  appeal  to  the  Court  of  ESrrors 
and  Appeals.  In  re  Prudential  Ins.  Oo.  of 
America,  82  N.  J.  Eq.  335,  339,  88  AtL  970; 
Florenzie  v.  East  Orange,  88  N.  J.  Law,  4^ 


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MATEREA  v.  ERIE  R.  CO. 


69 


440,  97  Atl.  200.  Thla  qnestlon  Is  suggested 
In  the  briefs,  but  Is  not  l>efore  me  for  deci- 
sion. 

The  jurisdictional  qnestkm  having  been  de- 
termined, I  will,  npon  application  of  counsel, 
designate  a  day  tor  hearing  the  facts. 


(to  N.  J.  Law,  tfT) 

MATEREA  t.  ERIE  R.  CO. 

(Supreme  Court  of  New  Jersey.     June  0, 
1917.) 

(Sj/lldbiu  iv  the  Court.) 

1.  Trux  «=»139(1)— Jdbt— Wkioht  of  Testi- 

VONT. 

It  is  for  the  jury  to  say  what  weight  shall 
be  g:iven  to  the  testimony  of  a  witness  having 
an  opportunity  to  hear,  standing  at  or  near  the 
crossing  where  the  accident  occurred,  and  who 
testifies  that  he  did  not  hear  the  blowing  of  a 
whistle  or  the  ringing  of  a  Uell,  in  a  grade  cross- 
ing accident  case. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  §1  332,  S33,  83S-341.] 

2.  Railroads  «=»350(1)  —  Oradk  Cbossiwq 
Accident— Neqliobnc*  and  CoNTmBUTORT 
Neolioencb— Question  for  Jury. 

It  was  not  error  in  this  case  to  refuse  to 
direct  a  verdict  in  favor  of  the  defendant  on 
die  ground  there  was  no  proof  of  negligence 
on  the  part  of  the  defendant  or  because  the  de- 
cedent was  guilty  of  contributory  negligence. 
They  were  both  jury  questions.  Holmes  v. 
Pennsylvania  R.  R.  Co.,  74  N.  J.  Law,  469,  66 
Atl.  412,  12  Ann.  Cas.  1031,  Weiss  v.  Central 
R.  R.  Co.,  76  N.  J.  Law,  348,  69  Atl.  1087, 
and  Howe  v.  Northern  R.  R.  Co.,  78  N.  J.  Law, 
683,  76  Atl.  979,  distinguished. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  {  1152.] 

Ajipeal  from  Circuit  Court,  Hudson  County. 

Action  by  Mary  Materka,  administratrix, 
etc.,  against  the  Brie  Railroad  Company. 
Judgment  for  plaintiff,  and  defendant  ap- 
peals.   Affirmed. 

Argued  November  term,  1916,  before 
TRHNCHARD  and  BLACK,  JJ. 

Collins  &  Corbin  and  George  S.  Hobart,  all 
of  Jersey  City,  for  appellant.  Alexander 
Simpson,  of  Jersey  City,  for  respondent 

BLACK,  J.  This  action  was  brought  by 
the  plaintiff,  as  administratrix  of  Ferdinand 
Materka,  to  recover  damages  for  the  benefit 
of  his  widow  and  next  of  kin,  by  reason  of 
his  death,  on  September  6,  1912,  by  being 
struck  by  an  east-bound  express  train,  at 
the  Park  Avenue  grade  crossing,  in  the  bor- 
ough of  East  Rutberford  and  Rutherford, 
Bergen  county,  while  he  was  crossing  the 
tracks  on  foot  At  that  crossing  there  were 
four  tracks,  safety  gates,  and  a  watchman. 
A  rule  to  show  cause  was  allowed,  reserving 
objections  and  exceptions  noted  at  the  trial. 
The  verdict  was  reduced  to  the  sum  of  $4,- 
000.  The  trial  court  refused  to  set  aside  the 
verdict  on  the  ground  that  it  was  against  the 
weight  of  evidence.  The  points  argued  by 
the  appellant  for  a  reversal  of  the  judgment 
are:  First,  there  was  no  proof  of  negligence 
on  the  part  of  the  defendant;  second,  a  ver- 


dict should  have  been  directed  for  the  defend- 
ant because  of  contributory  negligence  of  the 
decedent,  Ferdinand  Materka  ;  third,  error  in 
the  charge  of  the  trial  judge,  and  in  the  refus- 
al to  charge  as  requested,  but  this  latter  point 
involves  the  same  points  as  are  in  the  first 
two,  except  as  hereinafter  noted.  This  is  the 
second  trial  of  the  case.  The  judgment  re- 
covered In  the  first  trial  was  reversed  by  the 
Supreme  Oourt  for  trial  errors.  The  judg- 
ment of  the  Supreme  Court  was  affirmed  by 
the  Court  of  Errors  and  Appeals.  In  the  re- 
port of  the  case  the  facts  are  quite  fully  and 
satisfactorily  stated.  Materka  v.  Erie  R.  R. 
Co.,  88  N.  J.  Law,  372,  95  AU.  612. 

[1,2]  The  crux  of  the  case  is  whether 
there  was  evidence  from  which  the  jury 
might  find  that  the  decedent  attempted  to 
make  the  crossing  wtiile  the  safety  gates 
were  up  and  without  receiving  any  warning 
from  the  flagman;  that  the  train  which 
struck  the  decedent  ai^roached  the  cross- 
ing without  giving  the  statutory  signals  of 
ringing  a  bell  or  sounding  a  steam  whistla 
The  record  shows  the  following  testimmiy: 
David  Harris,  a  vidtness,  testified: 

"Q.  Were  the  gates  up  when  you  crossed  over? 
A.  Ye.  *  *  *  I  crossed  into  East  Ruth- 
erford, and  I  saw  this  gentleman  get  off  this  trol- 
ley car  and  cross  the  railroad  tracks.  Q.  Were 
the  gates  up  when  he  crossed?  A.  The  gates 
were  up  on  one — yes.  Q.  On  your  side?  A. 
The  side  I  crossed  the  gate  was  up  on,  yes.  Q. 
That  is  the  side  he  entered  the  tracks  from? 
A.  That  is  the  side  he  entered  the  tracks  on. 
Q.  When  he  came  from  the  trolley  car  and  went 
on  the  tracks  the  gates  were  up,  I  understand? 
A.  That  is  right  sir.  Q.  After  he  got  on  the 
tracks  what  occurred?  A.  Why,  that  gate  on 
the  Rutherford  side  went  down.  Q.  Yes?  A 
And  the  ^ate  on  the  East  Rutberford  side  was 
up.  Q.  Yes?  A.  And  I  passed  a  remark.  Q. 
You  cannot  tell  what  yon  said,  just  what  you 
saw.  You  saw  this?  A.  I  saw  this  man  cross 
the  tracks,  and  there  was  a  train  coming  down 
the  track,  and  I  said  to  myself,  'I  don't  think 
he  will  get  across,'  and  with  that  I  saw  the 
man  hit.  •  *  ♦  Q.  Did  you  hear  any  whistle 
or  bell  up  to  the  time  you  saw  him  hit?  A.  I 
did  not,  sir." 

On  cross-examination: 

"Q.  You  did  not  know  It  was  coming?  A.  No, 
sir.  Q.  You  were  not  listening  for  it?  A.  No, 
sir.  Q.  Not  paying  any  attention  to  it  at  all? 
A.  No,  sir.  Q.  I  understand  you  to  say,  how- 
ever, that  you  did  see  it  coming ;  is  that  right, 
you  did  see  the  train  coming  before  it  strudc 
Mr.  Materka?  A.  Yes.  (Witness  marks  on  a 
photograph,  ExhiUt  P-6,  where  he  was  stand- 
ing at  that  time.)" 

Redirect: 

"Q.  Now  Mr.  Hobart  asked  you  if  j^ou  were 
listening  foi^  the  express  train.  You  did  not 
know  it  was  coming  until  you  saw  it  did  you? 
A.  No,  sir.  Q.  And  from  the  time  you  started 
across  the  crossing  up  to  and  until  the  time  you 
saw  the  express  train  had  you  heard  any  whistle 
or  bell  of  any  kind?    A.  No,  sir." 

Genevieve  Ruth  Saxly  a  witness  standing 
at  the  crossing  at  the  time  of  the  accident, 
did  not  hear  any  whistle  before  the  decedent 
was  struck.  She  said  she  was  not  listening 
for  whistles. 

Under  the  rule  laid  down  In  the  cases,  In 


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101  ATIiANTIO  RBPORTBB 


(Pa. 


the  Ck>iirt  of  Errors  and  Appeals  of  this  state, 
such  as  Danskin  v.  Pennsylvania  R.  R.  Ck>., 
83  N.  J.  Law,  522,  626,  83  Atl.  1006,  Horandt 
V.  Central  R.  R.  Co.,  81  N.  J.  Law,  490,  83 
AtL  511,  Walbel  v.  West  Jersey,  etc.,  R.  B. 
Co.,  87  N.  J.  Law,  573,  94  Atl.  951,  and  Mc- 
Lean T.  Erie  R.  R.  Co.,  69  N.  J.  Law,  57,  60, 
54  Atl.  238,  affirmed  70  N.  J.  Law,  337,  67 
Atl.  1132,  this  evidenne  was  for  the  jury.  It 
made  a  Jury  question.  The  point  cannot  be 
removed  from  the  domain  of  the  Jury. 

The  cases  of  Holmes  t.  Pennsylvania  B. 
R.,  74  N.  J.  Law,  469,  66  Atl.  412,  12  Ann. 
Gas.  1031,  Weiss  v.  Central  R.  R.  Co.,  76 
N.  J.  Law,  348,  69  AtL  1087,  and  Howe  v. 
Northern  R.  R.  Co.,  78  N.  J.  Law,  683,  76  AU. 
979,  distinguished.  So  contributory  negli- 
gence of  the  decedent  was  also  a  Jury  ques- 
tion under  such  cases  as  Brown  v.  EMe  R.  R. 
Co.,  87  N.  J.  Law,  487,  91  AtL  1023,  and 
Femetti  v.  West  Jersey,  eta,  B.  B.  Co.,  87  N. 
J.  Law,  268,  93  AtL  676. 

This  disposes  of  the  case,  except  it  Is  fur^ 
ther  urged  that  there  was  error  in  the  re- 
fusal of  the  trial  court  to  diarge  each  of 
two  specific  requests  in  reference  to  the  stat- 
utory signals  and  the  operation  of  the  cross- 
ing gates;  each  request  covers  separate 
charges  of  negligence.  The  judgment  must 
be  reversed,  so  it  is  argued,  because  the  trial 
judge  permitted  the  jury  to  base  a  verdict 
upon  either  ground,  notwithstanding  the  spe- 
cific requests  submitted  by  the  defendant 
with  respect  to  each  allegation  of  negligence. 
The  court  in  the  charge  to  the  jury  bad 
covered  each  ground  fully,  accurately,  and 
clearly.  The  requests  refused  were,  in  eftect, 
to  take  the  case  from  the  jury;  hence  this 
was  not  error,  in  view  of  the  cases  above 
cited. 

Tlie  judgment  of  the  Hudson  circuit  court 
is  affirmed,  with  costs. 


(2S6  Pb.  60S) 


WEIL  T.  MARQUIS. 


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

1.  exectjtobs  and  administrators  €=>426— 
.''ettino  Abide  Acts  of  Decedent— Bene- 
fit OF  Creditors. 

An  executor  or  administrator  may  bring  an 
action  to  set  aside  the  fraudulent  transactions  of 
the  deceased  for  the  benefit  of  creditors,  whose 
trustee  he  is. 

[Ed.  Note. — For  other  cases,  see  Executors  and 
AdminiBtrators,  Cent  Dig.  $$  1663,  1665.] 

2.  IiXECWTOB«  AND  Administrators  ®=>426— 
Death  op  Transferoe  —  Administrator's 
Action  for  Benefit  of  Creditors. 

A  transfer  of  property  in  fraud  of  creditors 
is  a  nullity,  and,  after  the  transferor's  death,  an 
action  is  mnintainable  by  his  administrator  as 
trustee  to  recover  so  much  of  the  property  trans- 
ferred as  may  be  needed  to  pay  just  claims  of 
creditors. 

[Ed.  Note. — For  other  cases,  see  Executors  and 
Administrators,  Cent  Dig.  §§  1663,  16C6.] 


3.  Insubance    «=3o8&—BENEnciABiKB— Vest- 
ed Interest. 

Where  the  insured  took  out  life  insurance 
policies  payable  to  his  wife  and  did  not  exercise 
his  right  to  change  his  beneficiary  during  bis  life- 
time, the  widow's  interest  in  the  poUcies  on  bis 
death  became  a  vested  interest 

[EM.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  §  1470.] 

4.  Insurance  «=»590— BENEFictAET— Liabiu- 

TT  OF  FoiTD  for  DBBT& 

Act  April  15,  1868  (P.  L.  103),  providing 
that  insurance  money  payable  to  the  wife  and 
children  of  an  assured  shall  be  free  from  the 
claim  of  creditors,  governed  where  an  intestate 
who  had  taken  out  life  insurance  policies  pay- 
able  to  his  wife  and  died  without  having  exer- 
cised the  right  to  change  the  beneficiary,  and 
where  the  widow  collected  the  insurance  money 
amounting  to  less  than  his  debts,  so  that  she 
was  entitled  to  bold  the  proceeds  as  against  tlie 
insured's  administratrix  soing  for  money  had 
and  received;  Act  May  1,  1876  (P.  L.  53),  Act 
Jnne  1,  1911  (P.  L.  581),  and  Act  May  5,  1916 
(P.  L.  253),  relating  to  other  forms  of  insur- 
ance and  to  beneficiaries,  not  applying. 

[Ed.  Note. — For  other  cases,  see  Insoranee, 
Cent  Dig.  U  1479,  1482,  1485.} 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  money  bad  and  received  by 
Nlta  M.  Well,  administratrix  of  the  estate  of 
Abraham  Marquis,  deceased,  against  Jeanette 
A.  Marquis.  From  an  order  discharging  a 
rule  for  judgment  for  want  of  a  sufficient 
affidavit  of  defense,  plaintiff  appeals.  Affirm- 
ed. 

The  facts'  appear  in  the  following  opinion 
by  Audenrled,  P.  J.,  in  the  court  below: 

Abraham  Marquis  died  August  14,  1914,  intes- 
tate and  insolvent  He  bad  taken  out  sundry 
policies  of  insurance  upon  bis  life,  each  of  which 
was  made  payable  to  the  defendant,  his  wife, 
subject,  however,  to  the  provision  that  he  might 
change  the  beneficiary  thereunder.  He  died  with- 
out having  exercised  that  right,  and  his  widow 
collected  the  money  payable  on  these  policies, 
wtiich  amounted  to  much  less  than  his  debts. 
Letters  of  administration  upon  the  estate  of 
Marquis  have  been  granted  to  the  plaintiff,  who 
has  brought  this  action  against  his  widow  to  re- 
cover what  tlic  latter  received  from  the  insure 
ance  companies. 

Upon  these  facts,  which  are  not  denied  by  the 
defendant,  the  plaintiff  asks  judgment  for  cither 
the  amount  of  the  proceeds  collected  on  the  poli- 
cies or  the  amount  of  their  surrender  value  im- 
mediately before  the  death  of  the  insured ;  both 
amounts  being  ascertainable  from  the  affidavit  of 
defense. 

[1,2]  As  to  the  first  question  discussed  by 
counsel,  we  have  no  doubt.  While  an  executor 
or  administrator,  as  the  mere  personal  repre- 
sentative of  a  decedent,  can  take  no  step  to  set 
aside  for  the  benefit  of  heirs,  next  of  kin,  lega- 
tees, or  devisees,  the  fraudulent  transactions  of 
the  deceased,  his  right  to  do  so  for  the  benefit 
of  the  creditors,  whose  trustee  he  is,  has  long 
been  recognized  in  this  state.  Chester  County 
Trust  Co.  V.  Pugh,  241  Pa.  124,  88  Atl.  319.  50 
U  R.  A.  (N.  S.)  320,  Ann.  Cas.  1915B,  211. 
A  transfer  of  property  in  fraud  of  creditors  is 
a  nullity  as  against  the  interests  attempted  to 
be  defrauded ;  and,  after  the  death  of  the  trans- 
feror, an  action  is  maintainable  by  his  admin- 
istrator, as  their  trustee  for  the  recovery  of  as 
much  of  the  property  so  transferred  as  may  be 
needed  for  tlie  payment  of  their  just  claims. 
Bupbler  v.  Gloninger,  2  Watts,  226;   Stewart  v. 


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WEIIi  ▼.  MARQUIS 


71 


Kearney,  6  Watts,  453,  81  Am.  Dec.  482.  Whili 
the  statement  of  claim  does  not  allege  actual 
fraud  in  the  dealings  of  the  defendant  with  her 
husband  in  respect  to  the  policies  of  insurance 
procured  by  the  latter  upon  his  life,  it  is  argued 
that  the  facts  above  mentioned  make  out  a  case 
of  constructive  fraud.  We  think  that,  if  this 
contention  can  be  sustained,  the  right  of  the 
plaintiff  to  a  recovery  against  the  defendant  ia 
clear. 

Several  acts  of  assembly  have  been  referred  to 
by  counsel  as  bearing  on  the  matter  before  the 
court,  and  our  next  inquirjr,  therefore,  is  wheth- 
er these  have  any  application  to  the  case. 

The  most  recent  legislation  on  the  subject  of 
life  insurance  policies  such  as  those  referred  to 
in  the  plaintiff's  statement  is  the  Act  of  May 
6,  1915,  P.  L.  253.  By  its  terms,  this  statute 
relates  to  policies  of  life  insurance  "which  have 
heretofore  or  which  shall  be  hereafter  taken  out 
for  the  benefit  of,  or  assigned  to,  the  wife  or 
children,  or  any  other  relative  dependent  upon" 
the  person  whose  life  is  insured.  Grammatical- 
ly, the  use  of  the  perfect  tense  of  the  verb  in  the 
clause  "which  have  heretofore  (been)  taken  out" 
seems  to  imply  that  the  policies  therein  referred 
to  were  existing  policies  that  had  not,  when  the 
act  became  effective,  matured  and  been  paid. 
If  this  clause  were  construed  to  embrace  all  poli- 
cies that  had  been  issued  prior  to  the  passaj^e  of 
the  act,  thus  including  those  with  respect  to 
whose  proceeds  rights  had  already  vested,  the 
act,  to  that  extent,  would  violate  both  section 
17  of  article  1  of  the  Constitution  of  Pennsyl- 
vania and  clause  1  of  section  10,  art.  1,  of  the 
Constitution  of  the  United  States,  since  it  would 
impair  the  obligation  of  contract  by  depriving 
creditors  of  their  remedy,  an  impediment,  in  the 
shape  of  an  exemption  which  did  not  exist  when 
their  debts  were  contracted,  being  placed  in  the 
way  of  collecting  them.  Penrose  v.  Erie  Canal 
Co.,  58  Pa.  46;  Edwards  v.  Kearzey,  96  U.  S. 
505,  24  I<.  Ed.  793;  Kener  v.  Le  Grange  Mills, 
231  U,  S.  215,  34  Sup.  Ct.  83,  58  U  Ed.  189. 
We  are  of  opinion,  therefore,  that  this  act  doe* 
not  affect  the  case  before  us. 

Nor  does  section  25  of  the  Act  of  May  1,  1876 
(P.  L.  60)  apply.  The  provisions  of  that  sec- 
tion are  expressly  confined  to  policies  issued  by 
companies  Incorporated  under  the  act  of  which 
it  forms  a  part.  It  does  not  appear,  and  the 
court  cannot  assume,  that  the  insurance  compa- 
nies that  issued  the  policies  referred  to  in  this 
case  were  so  incorporated. 

Section  27  of  the  Act  of  June  1,  1911,  P.  L. 
581,  provides  as  follows:  "A  policy  of  insurance 
issued  by  any  company,  heretofore  or  hereafter 
incorporated,  on  the  life  of  any  person,  expressed 
to  be  for  the  benefit  of  any  married  woman, 
whether  procured  by  herself,  her  husband,  or 
any  other  person,  shall  inure  to  her  separate  use 
and  benefit  and  that  of  her  children,  independ- 
ently of  her  hasband  or  his  creditors,  or  the  per- 
son effecting  the  same  or  his  creditors.  If  the 
premium  is  paid  by  any  person  with  intent  to  de- 
fraud his  creditors,  an  amount  equal  to  the  pre- 
mium go  paid,  with  interest  thereon,  shall  inure 
to  their  benefit"  Unless  this  enactment  is  held 
to  be  retrospective  in  its  operation,  it  does  not 
apply  to  the  policies  involved  in  this  case.  The 
last  of  these  to  be  issued  was  taken  out  more 
than  nine  months  before  it  became  a  law.  But 
the  act  is  not,  in  tiiis  respect,  retroactive.  The 
use  of  the  present  tense  of  the  verb  in  the  con- 
ditional part  of  the  second  sentence  of  the  sec- 
tion quoted  plainly  indicates  that  no  reference  to 
policies  previously  issued  is  intended;  and,  if 
its  language  were  otherwise,  no  effect  could  be 
given  to  it,  so  far  as  concerns  such  policies,  for 
the  same  constitutional  reasons  that  are  referred 
to  above  in  discussing  the  Act  of  May  5,  1915. 
Moreover,  even  if  it  was  intended  to  change  the 
law  as  to  the  rights  of  creditors  in  respect  to 
policies  of  life  insurance  theretofore  issued,  no- 
tice of  such  an  intention  is  wholly  lacking  in  the 
title  of  the  act;   and  the  attempt  to  make  aucb 


a  change  was  therefore  futile.  Section  3,  art.  3, 
Constitution  of  Pennsylvania.  When  the  subject 
expressed  in  the  title  of  an  act  is  not  broad 
enough  to  cover  all  its  provisions,  such  parts  of 
the  act  as  are  not  within  the  purview  of  the  ti- 
tle are  void.  Hatfield  v.  Com.,  120  Pa.  395,  14 
Atl.  151 ;  Potter  County  Water  Ca  v.  Austin 
Borough,  206  Pa.  297,  55  AtL  991. 

So  far  as  our  examination  of  the  acts  of  as- 
sembly goes,  the  only  legislation  that  bears  upon 
the  question  involved  in  these  rules  is  section  1 
of  the  Act  of  April  15,  1868  (P.  L.  103).  This 
reads  as  follows:  "All  policies  of  life  insurance 
or  annuities  upon  the  life  of  any  person  which 
may  hereafter  mature,  and  which  have  been  or 
shall  be  taken  out  for  the  benefit  of,  or  t>ona 
fide  assigned  to  the  wife  or  children  or  any 
relative  dependent  upon  such  person,  shall  be 
vested  in  such  wife  or  children  or  other  relative, 
full  and  clear  of  all  claims  of  the  creditors  of 
such  person." 

It  is  conceded  by  the  plaintiff  that,  if  the  pol- 
icies in  question  were  within  the  scope  of  thia 
act,  judgment  must  be^ntered  in  favor  of  the 
defendant.  It  is  contended,  however,  that  they 
do  not  fall  within  either  of  the  two  classes  of 
policies  which  the  statute  was  intended  to  pro- 
tect from  the  creditors  of  the  person  who  has 
taken  them  out  and  paid  their  premiums. 

From  the  aUidavit  of  defense  it  ie  impossible 
to  determine  how  the  policies  whose  proceeds 
are  in  dispute  were  originally  issued.  All  that 
appears  is  that  the  defendant  was,  prior  to  the 
death  of  her  husband,  the  beneficiary  thereun- 
der, and  that  be  had  the  right  to  appoint  anoth- 
er as  beneficiary  in  her  place. 

It  is  argued  on  behalf  of  the  plaintiff  that,  if 
the  policies  when  originally  issued  were  made 
payable  to  the  defendant  subject  to  the  condi- 
tion that  her  husband  should  not  designate  some 
other  person  as  payee  of  their  proceeds,  they 
were  taken  out  by  him  for  his  own  benefit  and 
not  for  hers;  and  that  consequently  the  case 
does  not  fall  within  the  first  of  the  two  cate- 
gories embraced  by  the  act.  It  is  further  ar- 
gued that,  if  the  policies  were  issued  in  the 
name  of  tlie  insured,  they  are  not  within  the  sec- 
ond class  to  which  the  act  refers,  because  the 
•  wife  took  no  interest  in  them  under  the  subse- 
quent assignment  thereof  to  her ;  the  reserva- 
tion to  the  insured  of  the  right  to  change  the 
beneficiary  securing  full  control  of  the  policies 
to  him  and  leaving  him,  therefore,  tfieir  real 
owner. 

Although  the  policy  of  the  law,  even  where 
the  rights  of  creditors  may  be  adversely  affected, 
favors  the  wife  to  whom  her  husband  has  at- 
tempted to  secure  the  benefit  of  insurance  upon 
his  life  (Kulp  v.  March.  181  Pa.  627,  37  Atl. 
913,  59  Am.  St.  Rep.  C87),  the  argument  of  the 
plaintiff  thus  summarized  is  of  great  weight, 
and,  if  the  creditors  had  attempted  to  reach 
the  policies  during  the  lifetime  of  the  insured, 
we  can  see  no  reason  wliy  they  should  not  have 
been  successful  (In  re  Herr  [No.  2  D.  C]  182 
Fed.  710;  In  re  Jamison  Bros.  &  Co.  [D.  C] 
222  Fed.  92;  In  re  Shoemaker  [D.  C]  225  Fed. 
329). 

[3,  41  Nevertheless,  the  facts  presented  by  this 
case  differ  in  a  very  important  point  from  those 
involved  in  the  bankruptcy  cases  to  which  refer- 
ence has  been  made.  Here  the  insured  is  no 
longer  living.  He  had,  it  is  true,  reserved  to 
himself  under  his  insurance  contracts  the  option 
of  lettinpr  them  inure  to  the  benefit  of  his  wife 
or  appointing  some  other  beneficiary  in  her 
stead.  This  he  might  have  exercised  whenever 
he  saw  fit  during  bis  life,  but  it  ended  at  the 
very  instant  of  his  death.  It  did  not  survive 
him.  See  McDonald,  EJx'x,  v.  Columbian  Na- 
tional Life  Insurance  Co.,  253  Pa,  239,  97  Atl. 
1086,  U  R.  A.  1916F,  1244.  The  moment  be 
breathed  his  last,  the  happening  of  the  condition 
subsequent  which  might  have  divested  the  de- 
fendant's rights  in  the  policies  became  impos- 
siblfi.    U  up  to  that  time  her  interest  in  the 


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101  ATLANTIC  REPOBTBa 


(Pa. 


policies  amounted  to  notbinc  more  tlian  a  bare 
expectancy,  that  expectancy  then  ripened,  and 
her  interest  in  the  policies  and  their  proceeds 
immediately  became  a  vested  one. 

Thus  the  air  was  cleared;  and  the  position 
of  the  creditors  became  forthwith  what  it  would 
have  been  if,  when  the  policies  were  originally 
issued  or  subaequentiy  assigned  to  her,  no  right 
to  change  their  beneSciary  had  been  reserved 
by  the  insured.  Setting  aside  the  question  of 
fraud,  any  right  that  the  creditors  of  Marquis 
or  their  representative  had  to  object  to  the  stat- 
ute as  a  bar  to  the  appropriation  of  the  policies 
of  insurance  on  his  life  payable  to  his  wife  to 
the  discharge  of  their  claims  against  him  rested 
solely  on  the  ground  that  he  still  held  a  control 
over  them  equivalent  to  ownership.  That  foun- 
dation has  slipped  away.  As  the  case  now 
stands,  the  disposition  of  the  proceeds  of  the  pol- 
icies is  governed  by  the  Act  of  April  15,  1868. 

If  the  defendant's  rights  as  beneficiary  re- 
sulted from  the  assignment  of  the  policies  to  her 
by  her  husband,  it  would,  of  course,  be  possible 
to  attack  them,  under  the  Act  of  13  Bliz.  C.  S., 
<wi  the  ground  of  fraud.  The  Act  of  1868  pro- 
tects such  assignments  only  when  bona  fide. 
Although  the  assignment  in  this  case,  if  there 
was  an  assignment,  was  made  by  an  Insolvent 
to  his  wife,  with  a  reservation  of  power  to  con- 
trol the  disposition  of  the  policies  as  be  pleased, 
the  court  cannot  declare  the  transaction,  how- 
ever suspicious  it  may  be,  fraudulent  per  se. 
The  statement  of  claim  raises  no  question  of 
fraud  in  fact ;  but,  if  fraud  were  alleged,  the 
question  of  the  good  faith  of  the  defendant  and 
her  husband  would  necessarily  take  the  case  to 
the  jury,  to  whose  province  such  questions  pecu- 
liarly appertain.  Sebring  v.  Brickley,  7  Pa. 
Super.  Ct  108. 

Argued  before  BROWN,  0.  J.,  and  STEW- 
ART, MOSCHZISKER,  PRAZER,  and  WAL- 
LING, JJ. 

Morris  Wolf  and  Horace  Stem,  both  of 
Philadelphia,  for  appellant.  Hampton  L.  Car- 
son and  Joseph  Carson,  both  of  Philadelphia, 
for  appellee. 

PER  CURIAM.  This  appeal  is  dismlsaed 
on  the  opinion  of  the  learned  president  judge 
of  the  court  below  discharging  the  rules  for 
Judgment  for  want  of  a  sufflcient  affidavit 
of  defense. 


(266  Pa.  620) 

COMMONWEALTH   y.   STAUSH. 

(Supreme    Court   of    Pennsylvania.      Feb.    20, 
1917.) 

1.  Cbiminai,     Law      «=3980{2) — Plea,     of 

Guilty— Sentence — Statute. 
Act  March  31,  1860  (P.  L.  402)  S  74,  pro- 
viding that,  where  a  defendant  pleads  guilty 
to  an  indictment  for  murder,  the  court  shall 
proceed  by  examination  of  witnesses  to  determine 
the  degree  of  the  crime,  must  be  strictly  con- 
strued, and  thereunder  the  examination  of  wit- 
nesses by  the  court  means  the  seein;^  and  hear- 
ing of  the  witnesses,  and  a  mere  reading  of  their 
testimony  by  a  judge  or  judges  who  did  not  see 
or  hear  them  is  not  a  compliance  with  the  act 

[Ed.    Note. — For    other    cases,    see    Criminal 
Law,  Cent.  Dig.  §|  2494,  2495.] 

2.  Cbikinai.      TjAW      €=9  980(2) —Plea      or 
GutLTT— Sentence— Statute. 

Under  such  provision,  every  member  of  a 
oonrt  passing  upon  the  degree  of  guilt  must 
see  and  hear  the  witnesses  upon  whose  testimony 
the  degree  of  homicide  is  to  to  he  determined, 
and  where  three  of  the  five  judges  heard  the 


testimony  and  thereafter  the  president  Jndge 
who  was  not  present  during  the  examination  of 
witnesses  read  the  evidence,  and  joined  in  the 
deliberations,  and  wrote  the  court's  opinioa 
fixing  the  crime  as  murder  in  the  first  degree^ 
the  judgment  would  be  reversed,  and  a  proceden- 
do awarded  with  leave  to  defendant  to  renew  in 
the  court  below  a  motion  to  withdraw  his  plea 
of  guilty. 

[Ed.  Note.— For  other  cases,  sea  Criminal 
Lew,  Cent.  EMg.  H  2494,  2495.] 

Appeal  from  Court  of  Oyer  and  Terminer, 
Luzerne  County. 

John  Staush  was  convicted  of  murder  lu 
the  first  degree,  and  be  appeals.  Beveraed. 
and  procedendo  awarded  with  leave  to  de- 
fendant to  renew  In  court  below  his  motion 
for  leave  to  withdraw  his  plea  of  g^illty. 

Argued  before  BHOWn,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
WALLING.  JJ. 

M.  J.  Torlinskl  and  George  Howortb,  both 
of  Wllkes-Bnrre,  for  appellant  Frank  P. 
Slattery,  DUt  Atty.  of  Luzerne  C^ounty,  and 
Eidwin  Shortz,  Jr.,  Asst.  Dist  Atty.,  botb  of 
Wllkea-Barte,  for  the  Commonwealtb. 

BROWN,  O.  J.  [1]  John  Staush,  the  ap- 
pellant, entered  a  plea  of  guilty  to  an  in- 
dictment charging  him  vrith  murder,  and  It 
thereupon  became  the  duty  of  the  court  be- 
low, under  section  74  of  the  act  of  March 
31,  1860  (P.  I*  402),  to  "proceed,  by  examina- 
tion of  witnesses,  to  determine  the  degree 
of  the  crime,  and  to  give  sentence  accord- 
ingly." Three  of  the  five  Judges  of  that 
court  met  to  perform  the  duty  Imposed  up- 
on It,  and  witnesses  were  examined  before 
them.  At  the  examination  the  coumou- 
wealth  was  represented  by  the  district  attor- 
ney, and  the  prisoner,  with  his  counsel,  was 
present.  The  testimony  was  taken  down  by 
the  court  stenographer,  whose  transcript  of 
the  same  was  duly  approved  by  one  of  the 
Judges  and  ordered  to  be  filed.  After  the 
hearing,  and  before  the  three  judges  had 
reached  any  conclusion  as  to  the  degree  of 
the  prisoner's  guilt,  they  asked  the  president 
Judge  of  the  court — who  had  not  been  pres- 
ent at  the  examination  of  the  witnesses — 
to  Join  than  In  their  consideration  of  the 
testimony  taken,  for  the  purpose  of  fixing 
the  degree  of  the  crime.  After  reading  the 
evidence,  he  took  part  in  their  deliberation, 
and  found  that  the  prisoner  was  guilty  of 
murder  of  the  first  degree.  Subsequently 
he  wrote  the  opinion  of  the  court,  fixing  the 
degree  of  guilt,  and  pronounced  the  judg- 
ment of  death.  The  real  error  of  which  the 
appellant  complains— and  the  only  one  up- 
on which  we  need  iwss — ^is  the  action  of  the 
court  below  In  having  Its  president  Judge 
consult  with  his  three  colleagues  over  a 
most  solemn  question.  Involving  life,  without 
bis  having  seen  or  heard  the  witnesses  up- 
on whose  testimony  it  was  to  be  determined. 

A  tribunal,  specially  designated  by  the 
Legislature,  fixes  the  degree  of  guilt,  upon 


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WOOD  T.  WILUAM  KAMX  MFO.  CO. 


73 


conviction  by  coofeBslon,  on  an  indictment 
charging  murder.  Such  a  case  la  no  longer 
for  a  Jury,  whose  province  It  Is  to  fix  the  de- 
gree of  homicide  in  every  case  where  the 
accosed  goes  to  trial  on  his  plea  of  not  guil- 
ty. The  Legislature  might  have  provided 
that,  on  a  plea  of  guilty,  a  Jury  should  hear 
the  testimony  relating  to  the  crime  for  the 
sole  purpose  of  fixing  the  degree  of  guilt; 
but  it  has  not  done  so.  It  has  committed 
that  duty  to  the  court  having  jurisdiction 
of  the  dndictment,  and  perhaps  wisely  so,  in 
view  of  human  sympathy  to  which  jurors 
not  Infrequently  yield  when  called  to  pass 
upon  the  life  or  death  of  a  fellow  man.  To 
enable  it  to  discharge  this  duty  the  court 
must  examine  witnesses  and  hear  what  they 
know  and  are  able  to  truthfully  tell  of  the 
circumstances  attending  the  admitted  feloni- 
ous Wiling.  As  this  statutory  provision,  re- 
lating to  a  criminal  procedure,  must  be  strict- 
ly construed,  the  examination  of  witnesses 
by  the  conrt  means  its  seeing  and  hearing 
them,  not  a  mere  reading  of  th^  testimony 
by  a  Judge  or  Judges  who  neither  saw  nor 
heard  them,  and  it  means  that  every  man- 
ber  of  a  conrt  passing  uiwn  the  degree  of 
guilt  in  a  homicide  case  must  see  and  hear 
the  witnesses  upon  whose  testimony  the 
question  is  to  be  determined.  If  it  had  been 
for  a  Jury  to  determine  the  degree  of  the 
appellant's  guilt,  and  but  eight  of  the  Jurors 
had  seem  and  heard  the  witnesses,  a  verdict 
of  the  twelve  condemning  him  to  death 
would  be  promptly  set  aside,  if  the  other 
four  Jurors  had  simply  read  the  testimony 
of  the  witnesses  from  the  stenographer's 
notes;  and  yet  this.  In  effect,  is  the  situa- 
tion here  presented. 

[2]  The  court  below,  composed  of  four  of 
its  five  members,  found  the  prisoner  guilty 
of  mnrder  of  the  first  degree.  They  were 
his  triers;  they  deliberated  together  over 
what  their  verdict  should  be,  and,  after  so 
deliberating,  fixed  his  crime  as  the  highest 
known  to  the  law;  but  one  of  them  had 
neither  seen  nor  heard  a  single  witness 
called  to  sustain  the  commonwealth  In  ask- 
ing for  a  first  degree  finding,  or  the  plea  of 
the  prisoner  that  intoxication  had  reduced 
the  degree  of  his  offense.  One  of  the  three 
Judges  who  heard  the  witnesses  long  hes- 
itated in  reaching  his  conclusion,  and  If 
the  fourth,  who  heard  none  of  them,  bad 
heard  them  all,  he  might  also  not  only  have 
long  hesitated,  but  actually  refused  to  con- 
cur in  the  finding  of  first  degree  murder. 
In  findings  of  fact  by  a  Judge,  sitting  as  a 
chancellor,  the  credibility  of  witnesses  and 
the  weight  to  be  given  to  their  testimony 
are  for  him,  and  their  credibility  is  often 
sustained  or  impaired  by  their  appearance 
on  the  witness  stand  and  by  their  manner  of 
testifying.  If  this  is  true  in  dvll  cases,  it 
Is  surely  true  In  a  proceeding  in  a  criminal 
court  in  which  a  human  life  is  at  stake. 


We  are  not  to  be  understood  as  saying,  or 
even  intimating,  that  on  the  testimony  of 
the  witnesses  seen  and  heard  by  the  three 
learned  Judges  of  the  court  below  they  would 
have  erred  in  adjudging  the  prisoner  guilty 
of  murder  of  the  first  degree;  for  that  is 
not  the  question  before  us.  All  that  we  now 
decide  is  that  error  was  committed  In  hav- 
ing the  president  Judge  take  part,  under  t*he 
circumstances  stated.  In  a  consultation  and 
deliberation  which  resulted  in  a  finding  nec- 
essarily followed  by  the  Judgment  from 
which  we  have  this  appeaL 

Judgment  reversed,  and  procedendo  award- 
ed, with  leave  to  the  prisoner  to  renew  in 
the  court  below  his  motion  for  leave  to  with- 
draw his  plea  of  guilty. 

WOOD  V.  WILLIAM  KANE  MFG.  CO.,  Inc. 

(Supremo  Court  of  Pennsylvania.    March  6, 
1917.) 

1.  Mastbb  and  Sxbvaht  9=»90  —  Mastkb's 
Duty — Extjsmt. 

The  mere  relation  of  master  and  servant 
does  not  imply  an  obligation  on  the  master  to 
take  more  care  of  the  servant  than  he  may  rea- 
sonably be  expected  to  take  of  himself. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  {  130.] 

2.  Masisb  and  Sebtant  «=>2e5(12)— Nbou- 

OBNCB— ElCPLOTUENT  OF  SSBVANTB. 

The  presumption  is  that  an  employer  has 
exercised  proper  care  in  the  selection  of  its  em- 
ployes, and  one  charging  negligence  in  the  em- 
ployment of  men  must  show  it  by  proi>er  evi- 
dence. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  %%  891,  908.] 

3.  Masteb  and  Sebvant  «=>150<6)  —  AonoN 

FOB   lN.n7BT— NeQUOKNCB— EVIOBROB. 

Where  plaintiff  in  charge  of  riveting  boilers 
was  suppUed  by  his  employer  with  helpers,  and 
where  one  of  the  helpers,  not  shown  to  be  in- 
competent, and  who  was  not  instructed  by  plain- 
tiff as  to  his  duties,  accidentally  let  go  of  the 
base  of  a  boiler  so  that  it  fell  upon  plaintiff, 
there  was  no  negligence  on  the  part  of  defend- 
ant, and  the  court  should  have  directed  a  verdict 
for  it 

[BA.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {f  302,  307.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  injury 
by  Thomas  Wood  against  the  William  Kane 
Manufacturing  Company,  Incorporated.  Ver- 
dict for  plaintiff  for  $2,000  and  Judgment 
thereon,  and  defendant  appeals.  Reversed, 
and  Judgment  entered  for  defendant 

Argued  before  M£}STIREZAT,  POTTER, 
STEWART,  MOSCHZISKER,  and  FRA- 
ZER,  JJ. 

Frank  P.  Prichard,  of  Philadelphia,  for  ap- 
pellant John  J.  McDevltt  Jr.,  and  Samuel 
O.  Stem,  both  of  Philadelphia,  for  appellee. 

FOTTER,  J.  This  wad  an  action  of  tres- 
■pOBB  to  recover  damages  for  personal  Inju- 


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101  ATIaANTIC  REFORTEB 


(Pa. 


rles.  Plaintiff,  who  had  the  management  of 
the  boiler  making  shop  of  the  defendant  com- 
pany, charged  his  employer  with  negligence 
in  falling  to  provide  an  experienced  helper, 
which,  as  he  alleged,  resulted  in  his  Injuries. 
He  was  supplied  with  helpers,  varying  In 
number  from  three  to  six,  who  received  In- 
structions from  him.  On  the  day  of  the  acci- 
dent, plaintiff  was  engaged  in  riveting  the 
base  of  an  upright  boiler.  The  base  was  not 
a  perfect  cylinder,  but  was  smaller  at  the 
top  than  at  the  bottom.  It  was  about  14 
Inches  high,  and  weighed  about  250  pounds. 
PlalntlfT  suspended  It  by  two  hooks  from  a 
crane,  and  asked  two  of  the  helpers  to  steady 
It  while  he  applied  a  pneumatic  riveter.  In 
order  to  secure  proper  contact  It  was  appar- 
ently necessary  to  tilt  the  base  slightly.  The 
pneumatic  riveter  was  applied  under  some 
pressure  to  the  side  of  the  base,  and  when  It 
was  withdrawn,  one  of  the  helpers  let  go  of 
the  base,  and  it  slipped  from  the  hooks  and 
fell,  injuring  plalntifF's  hand.  It  appears 
from  the  evidence  that  Gordon,  the  helper 
in  question,  had  been  employed  In  the  estab- 
lishment about  a  year,  but  had  never  been 
called  upon  to  assist  In  steadying  a  base  of 
that  particular  description.  It  was,  as  plain- 
tiff said,  "something  out  of  the  ordinary" 
as  to  shape,  and  he  bad  made  but  five  of  them 
during  a  period  of  three  years.  Plaintiff 
gave  no  instruction  to  the  helper,  Gordon,  as 
to  steadying  the  base  while  the  riveting  was 
being  done.  The  service  required  was  not 
complicated,  or  difficult  to  perform.  There 
is  nothing  in  the  evidence  to  show  that  the 
young  man  was  Incapable.  He  seems  to  have 
been  taken  by  surprise  at  the  effect  upon  the 
base  of  the  removal  of  the  pressure,  and 
failed  to  hold  on  steadily.  A  word  of  caution 
in  advance  from  the  plaintiff,  who  was  stand- 
ing dose  by,  would,  no  doubt,  have  prevented 
the  accident  It  cannot  justly  be  charged  to 
any  lack  of  experience,  upon  the  i>art  of  the 
helper.  In  assisting  to  steady  a  piece  of  metal 
of  that  particular  size  and  shape.  It  may 
very  well  be  that,  for  the  performance  of 
complicated  or  difficult  work  Involving  dan- 
ger, an  employer  would  be  bound  to  furnish 
not  only  competent,  but  experienced,  men, 
especially  for  leadership  and  supervision. 
But  in  the  present  case  the  plaintiff  himself 
was  supervising  the  work,  and  the  part  which 
the  helper  was  called  upon  to  perform  was  of 
the  simplest  possible  character.  He  was 
asked  to  hold  but  little  weight,  and  was  mere- 
ly to  lay  bis  hand  upon  the  base  to  help 
steady  it,  while  supported  by  the;  hooks. 

[1]  If  any  instruction  or  warning  was  need- 
ed to  aid  him  In  the  discharge  of  this  very 
simple  duty,  the  necessity  for  it  arose  upon 
the  instant,  and  the  Word  of  cantlon  should 
have  come  from  the  plaintiff,  who  was  in 
immediate  charge  of  the  operation.  The 
mere  relation  of  master  and  servant  can  nev- 
er imply  an  obligation  upon  the  part  of  the 
master  to  take  more  care  of  the  servant  than 


he  may  reasonably  be  expected  to  take  of 
himself. 

(2, 3]  The  presnmption  is  that  the  employer 
has  exercised  proper  care  In  the  selection  of 
employ^,  and  it  is  Incumbent  upon  one 
charging  negligence,  in  the  employment  of 
men,  to  show  it  by  proper  evidence.  The 
plaintiff  here  was  acquainted  with  the  help- 
er, and  knew  he  had  been  working  in  the 
shop  for  at  least  a  year.  The  evidence  shows 
no  suggestion  that  any  complaint  as  to  incom- 
petence upon  the  part  of  the  helper  was  ever 
made  by  the  plaintiff,  or  any  one  else.  The 
fact  that  he  was  employed  merely  as  a  helper 
is  in  itself  an  Indication  that,  having  prop- 
er capacity,  he  was  expected  to  gain  skiU  In 
the  work  and  knowledge  of  its  details,  under 
the  guidance  and  Instruction  of  more  ex- 
perienced men,  such  as  plaintiff,  with  whom 
he  was  associated. 

We  find  nothing  in  this  record  to  Justifj- 
placing  the  legal  responsibility  for  the  re- 
sults of  the  accident  upon  the  defendant 

The  first  assignment  of  error  is  sustained, 
the  judgment  is  reversed,  and  is  here  altered 
for  def^idant. 

<KI  Pa.  22> 

MTJLHERN  et  al.  v.  PHILADEIJPHIA 

HOME-MADE  BREAD  CO. 

(Supreme  Court  of  Pennsylvania.     March  6, 

1017.) 

1.  MtmiciPAL  OoKPORATioNs  «s»705(8>— Use 
OF  Stbsbt— Oabe  as  to  Childbkn. 

Special  caution  on  the  part  of  drivers  of 
vehicles  is  required  for  the  ijrotection  of  chil- 
dren congregating  in  the  vicinity  of  a  sehool- 
hoase. 

(Ed.  Note.— For  other  cases,  see  Manicipal 
Corporations,  Cent.  Dig.  §  1515.] 

2.  MunioiPAi.  CoBPOBAnoNS  «=»70G(6)— Use 

OF  STKEETa— NEOLIOENCE  OF  DBIVEB  OF  VB- 

HicLB — Question  fob  Jubt. 

In  an  action  for  damages  for  personal  in- 
jury to  a  school  child  from  being  run  over  by  a 
wagon,  held,  on  the  evidence,  that  whether  the 
driver's  failure  to  stop  it  or  turn  aside  to 
avoid  the  injury  was  negligence  waa  a  ques- 
tion for  the  jury, 

[Ed.  Note.— For  other  cases,  sea  Municipal 
Corporations,  Cent  Dig.  {  1518.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  iojaries 
by  Anna  Mnlhem,  by  her  father  and  next 
friend,  William  J.  Mulhem,  and  by  WilUam 
J.  Mulhem  in  his  own  right,  against  the 
Philadelphia  Home-Made  Bread  Company. 
Verdict  for  plalntlfl  Anna  Mulbem  for  $2,- 
000.  and  for  plaintiff  William  J.  Mulhem  for 
$200,  aitd  judgmrait  thereon,  and  defendant 
appeals.    ASLrmed. 

Argued  before  MESTREZAT,  POTTER, 
STEWART,  MOSCHZISKER.  and  FRAZ- 
BR,  JJ. 

■William  H.  Peace,  of  Philadelphia,  for  ap- 
pellant. John  Martin  Doyle  and  Eugene 
Raymond,  both  of  Philadelphia,  for  appel- 
lees. 


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HARDIB  T.  BARRETT 


75 


POTTER,  J.  Thes»  appeals  are  grounded 
npon  the  refusal  of  tbe  conrt  b&ow  to  give 
binding  Instractions  la  favor  of  tbe  defend- 
ant, or  to  enter  Judgment  non  obstante  vere- 
dicto. It  appears  from  tbe  testimony  that 
about  noon  on  February  4,  1900,  some  school 
children  Just  released  from  school  were 
walking  and  sliding  upon  tbe  icy  sidewalk 
on  tbe  south  side  of  Tasker  street  near  EHgtat- 
eentb.  Anna  Mulbem,  a  cblld  some  ten 
years  of  age,  fell  or  was  pushed  over  tbe 
curb  Into  tbe  edge  of  tbe  driveway  of  tbe 
street  as  a  wagon  driven  by  an  employ^  of 
defendant  was  approaching,  the  right-hand 
wheels  running  near  the  curb.  The  horse 
was  turned  somewhat  aside,  but  the  front 
wheel  of  the  wagon  ran  over  tbe  little  girl's 
leg  and  broke  It  The  question  for  determi- 
nation was  whether  the  driver,  by  tbe  exer- 
cise of  proper  care,  should  have  seen  tbe 
Child  after  it  fell  and  was  lying  partly  in 
tbe  street  ahead  of  him  in  time  to  stop  bis 
wagon,  or  turn  it  aside  to  avoid  the  accident, 
and  whether  bis  failure  to  do  so  was  n^ll- 
gence. 

A  bystander  testified  that  be  saw  tbe  <^lld 
lying  partly  in  the  gutter  when  the  wagon 
was  some  30  feet  distant,  and  he  said  that 
tbe  driver  was  not  then  looking  ahead,  but 
was  at  tbe  moment  looking  backward  into 
tbe  body  of  bis  wagon.  The  Jury  may  well 
have  found  that  the  proximity  of  a  number 
of  children  upon  the  sidewalk  at  the  side  of 
the  street  upon  which  he  was  driving  and 
the  well-known  tendency  of  children  to  make 
sudden  and  heedless  dashes  should  have  put 
the  driver  upon  his  guard  at  that  particular 
place,  at  least  to  tbe  extent  of  keeping  bis 
horse  well  in  band. 

[1]  It  is  common  knowledge  that  special 
caution  Is  required  for  the  protection  of  chll- 
iiea  who  congregate  in  the  vicinity  of  a 
schoolbouse.  The  plalntUF  Anna  Mulhern 
testified  that  after  she  bad  fallen  down  and 
was  lying  partly  in  the  gutter  she  saw  tbe 
wagon  coming  along  the  street  some  30  to  50 
feet  away  from  her.  If  this  was  the  fact, 
tbe  driver  could  have  stopped  his  wagon  or 
turned  it  aside  before  reaching  her,  if  be 
was  moving  at  a  proper  rate  of  si)eed  and 
had  bis  horse  under  proper  controL 

{2]  On  the  other  hand,  the  evidence  upon 
tbe  part  of  defendant  tended  to  show  that 
the  child  came  so  suddenly  and  unexitectedly 
from  the  sidewalk  into  tbe  line  of  travel  in 
tbe  street  that  the  accident  was  unavoidable. 
If  this  was  the  case,  defendant  should  not 
have  been  held  responsible. 

Counsel  for  appellant  has  contended  with 
great  earnestness  that  the  trial  Judge  should 
have  held  as  matter  of  law  that  the  evidence 
did  not  Justify  an  inference  of  negligence 
upon  the  part  of  the  driver.  But  we  are  un- 
able to  agree  with  his  contention  in  this  re- 
spect As  we  read  tbe  evidence,  tbe  question 
was  purely  one  of  fa**  upon  conflicting  state- 


ments by  the  witnesses.  It  the  Jury  accept- 
ed as  credible  tbe  evidence  otCered  by  tbe 
plaintiff,  they  were  Justified  in  inferring  neg- 
ligence npon  the  part  of  tbe  driver.  Had 
they  accepted  as  accurate  the  testimony  on 
behalf  of  the  defendant,  they  must  have 
concluded  that  the  driver  was  not  at  fault 
in  any  way,  and  tbe  verdict  would  have  been 
for  the  defendant  We  may  feel  that  tbe 
Jury  might  very  properly  have  reached  an- 
other conclusion,  but  the  question  of  fact  In 
dispute  was  for  them  to  decide.  To  the 
charge  of  tbe  conrt  in  submitting  the  case 
no  exception  was  taken. 
The  Judgment  is  affirmed. 


(2CT  Pa.  «) 
HARDIE  et  nx.  v.  BARRETT, 

(Supreme   Court   of   Pennsylvania.     March   K, 
1917.) 

1.  Highways  ®=»175(1)— Hired  Autouobilb 

— INJUBT — CONTEIBUTOBY    NeGUOENCE. 

When  the  dangers  arising  from  the  negligent 
operation  of  a  hired  automobile  in  which  one 
is  riding  as  an  invited  guest  are  manifest  to 
a  passenger  having  an  adequate  opportunity  to 
control  the  situation,  and  he  permits  himsdf 
without  protest  to  be  driven  to  his  injury,  he 
is  fixed  with  his  own  negligence  which  bars  a 
recovery. 

[Ed.  Note. — ^Por  other  cases,  see  Highways, 
Cent  Dig.  {{  461-464.] 

2.  Highways   <s=»175(1)  —  Collision  —  Con - 
tbibctoby  negligence. 

Where  a  husband  and  wife  hired  an  anto- 
mobile  driven  by  the  owner's  chauffeur  and 
made  no  effort  to  have  tbe  chauffeur  drive  at 
a  proper  speed  and  on  the  right  side  of  the 
street,  they  would  be  guilty  of  contributory  negli- 
gence barring  their  recovery  for  injuries  from 
a  collision. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent  Dig.  §§  461-464.] 

3.  Highways  €=»175(1)— Personal  Injuby— 
Neglioenck— Pboximate  Cause. 

In  an  action  by  a  husband  and  wife  for  per- 
sonal injuries  when  the  hired  automobile  in 
which  they  were  riding  in  New  Jersey  collided 
with  defendant's  wagon  during  a  time  when  the 
New  Jersey  law  required  that  it  display  lights, 
the  fact  that  there  were  no  lights  on  defendant's 
wagon,  if  not  the  proximate  cause  of  the  acci- 
dent, even  though  negligence,  would  not  justify 
a  recovery. 

CEid.  Note.— For  other  cases,  see  Highways, 
Cent  Dig.  Sf  461-164.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  Injuries 
by  James  6.  Hardle  an'd  Olive  M.  Hardie, 
his  wife,  and  James  G.  Hardle  against  Wil- 
liam M.  Barrett,  as  president  of  the  Adams 
Express  Company,  a  Joint-stock  association 
under  the  laws  of  New  York.  Verdict  for 
defendant  and  Judgment  thereon,  and  plain- 
tlfCs  appeal.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSCHZISKER,  PRAZER,  and  WAL- 
LING, JJ. 


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101  ATIiANTIO  HEPORTEB 


(Pa. 


Sydney  Toung,  of  Ftailadelpbla,  for  ai»pel- 
iante.  John  Lewis  Evans  and  Thomas  De- 
VTitt  Cuyler,  both  of  Phlladelpbla,  for  ai>- 
pellee. 

MOSCHZISKRK,  3.  On  the  evening  of 
August  22,  1913,  James  G.  Hardle,  and  Olive 
M.,  his  wife,  hired  an  automobile  with  Its 
driver,  one  Louis  S.  Chester,  Jr.,  to  convey 
them,  with  two  women  guests,  from  Sea  Isle 
City,  N.  J.,  to  a  nearby  yacht  club.  On  the 
way  a  collision  occurred  between  the  car  In 
which  they  were  riding  and  a  one-horse  ex- 
press wagon  belonging  to  the  defendant  com- 
pany. Both  Mr.  Hardle  and  his  wife  were 
Injured ;  they  sued  for  damages,  and  by  ex- 
press agreement  of  record  their  cases  were 
tried  together,  the  Issues  involved  were  sub- 
mitted to  the  jury,  and  In  each  Instance  the 
verdict  favored  the  defendant,  judgments 
were  entered  accordingly,  and  the  plaintiffs 
have  appealed. 

The  testimony  on  all  the  important  issnes 
was  most  conflicting;  but,  when  vleweU  in 
the  light  of  the  verdicts  rendered,  the  fol- 
lowing facts  can  be  found  therefrom:  The 
accident  happened  on  a  rainy  evening,  be- 
tween 8 :30  and  9  o'clock.  Mr.  Hardle  occu- 
pied a  front  seat  in  the  automobile,  beside 
the  chauffeur,  while  Mrs.  Hardle,  her  moth- 
er and  the  other  woman  were  In  the  tonneau. 
The  car  was  equipped  with  five  lights,  "two 
large  acetylene  gas  lamps  on  the  head,  two 
on  the  side,  and  <me  re)d  light  In  the  rear." 
The  headlights  illuminated  the  road  so  that 
one  In  the  car  "could  see  200  feet  in  front," 
and  made  the  way  "bright  enough  to  see  dis- 
tinctly the  curb."  The  part  of  the  road  upon 
which  the  accident  happened  had  a  curb  on 
the  west  side  and  a  single  track  trolley  line 
on  the  east,  with  a  space  of  22  feet  between. 
The  automobile  was  traveling  southward,  on 
the  left-han'd,  or  wrong,  side  of  the  road,  at 
an  estimated  speed  of  40  miles  an  hour. 
The  wagon  was  traveling  northward  on  the 
right-hand,  or  proper,  side  of  the  road,  the 
horse  going  at  "a  very  slow  trot."  The  driv- 
er of  the  latter  vehicle,  in  an  endeavor  to 
avoid  the  collision,  bad  his  horse  "nearly 
half  way  over"  the  trolley  track  when  the  ac- 
cident occurred.  The  automobile  struck  the 
wagon  on  the  near  front  wheel;  both  ve- 
hicles were  badly  damaged. 

On  the  foregoing  facts,  it  may  be  seen 
that  the  chauffeur,  and  not  the  'driver  of  the 
horse  and  wagon,  was  the  one  guilty  of  the 
negligence  which  caused  the  accident ;  but 
the  plaintiffs  complain  that  the  trial  judge 
committed  substantial  error  by  the  manner 
in  which  he  submitted  certain  issues  to  the 
jury.  In  disposing  of  these  complaints,  we 
shall  first  consider  together  assignments  1 
and  2. 

In  brief,  the  trial  Judge  Instructed  that,  if 
the  automobile  was  being  driven  with  "man- 
ifest improper  speed,"  or  12  the  chauffeur 


had  his  car  "mantfestly  on  the  wrong  place 
in  the  road,"  and  these  faults,  or  either  oC 
them,  contributed  to  the  happening  of  the  ac- 
ddoit,  if  the  plaintiffs  made  no  effort  to  "get 
him  to  go  at  a  proper  rate  of  speed"  or  "over 
on  the  right  side  of  the  road,"  they  would 
be  guilty  of  contributory  negligence,  trat  that 
they  could  not  be  found  so  guilty  unless  the 
before-mentioned  alleged  faults  on  the  part 
of  the  chauffeur  were  "manifest" 

In  reviewing  these  instructions.  It  must 
I>e  kept  in  mind  that  the  plaintiffs  did  not 
endeavor  to  excuse  the  fact  that  tlie  chauf- 
feur was  on  the  wrong  side  of  the  road  by 
explaining  he  was  temporarily  and  justifia- 
bly out  of  the  regular  track;  on  the  contrary, 
they  called  him  as  their  witness,  and  each 
of  them  gave  testimony  to  snlMtantlate  his 
story  tliat,  at  the  time  of  the  accident  and 
prior  thereto,  he  had  been  continually  driv- 
ing on  the  proper  side  of  tlie  road,  at  a  speed 
not  exceeding  15  miles  an  hour,  wtaidi  waa 
much  lowered  immediately  before  Uie  colli- 
tAon.  Both  plaintiffs  not  only  stood  upon 
but  reiterated  this  account  of  the  manner  In 
which  the  automobile  was  alleged  to  have 
been  handled ;  and,  of  course,  ex  necessitate, 
it  excluded  the  possibility  of  a  remonstrance 
on  their  part  having  been  maVie  to  the  chauf- 
feur, by  eliminating  aU  possible  reasons 
therefor.  Moreover,  the  plaintiffs*  attitude 
at  trial,  In  a  manner,  adopted,  or  set  their 
seal  of  approval  upon,  the  chauffeur's  real 
conduct,  as  the  jury  found  It  to  be. 

(1]  The  rule  is  well  established  that,  when 
possible  dangers  arising  oat  of  the  negligent 
operation  of  a  hired  vehicle  or  a  conveyance 
In  which  one  Is  riding  as  an  invited  guest 
are  manifest  to  a  passenger  who  has  any  ad- 
equate opportunity  to  control  the  situation, 
if  he  sits  by  without  protest  and  permits 
himself  to  be  driven  on  to  his  injury,  this 
Is  negligence  which  will  bar  recovery.  In 
other  words,  the  negligence  of  the  driver  is 
not  Imputed  to  the  passenger,  but  the  latter 
Is  fixed  with  his  own  negligence  when  he 
joins  the  former  in  testing  manifest  dangers. 
For  discussion  and,  in  some  Instances,  ai^- 
plication  of  this  rule,  see  Tbwnslilp  of  Cres- 
cent V.  Anderson,  114  Pa.  643,  8  Atl.  379,  60 
Am.  Rep.  367 ;  Dean  v.  Penna.  R.  R.  Co.,  129 
Pa.  514,  18  Atl.  718,  6  L.  R.  A.  14S,  15  Am. 
St  Rep.  733;  Winner  v.  Oakland  Township, 
158  Pa.  405,  27  AU.  1110,  1111;  Dryden  v. 
Penna.  R.  B.  Co.,  211  Pa.  620,  61  Atl.  249; 
Thompson  v.  Penna.  R.  R.  Co.,  215  Pa.  113, 
64  Atl.  323,  7  Ann.  Cas.  351;  Kunkle  v.  Lan- 
caster County,  219  Pa.  52,  67  Aa  918;  Walsh 
V.  Altoona  &  Logan  Val.  Elec.  Ry.  Co.,  232 
Pa.  479,  81  AtL  551 ;  Wachsmith  v.  Balto.  & 
Ohio  R.  R.  Co.,  233  Pa.  465,  82  AU.  755,  Ann. 
Cas.  1913B,  679 ;  Trumbower  v.  Lehigh  Val- 
ley Transit  Co.,  235  Pa.  397,  84  AU.  403; 
Senft  v.  Western  Maryland  Railway  Co.,  2i6 
Pa.  446,  92  Atl.  553;  Dunlap  v.  Philadel- 
phia Rapid  Transit  Co.,  248  Pa.  130,  03  AtU 
873. 


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77 


[2, 3]  Here,  tbe  dear,  strong,  prepondM«t- 
Ing  evidence  sbows  that  the  cbaufTewr  was 
seen  by  numerous  disinterested  witnesses, 
some  three  or  four  blocks  north  from  the 
point  of  the  accident,  driving  in  a  reckless 
manner,  at  an  estimated  efpeed  of  40  miles 
an  boor,  on  the  wrong  side  of  the  road,  aulte 
«Iose  to  the  trolley  track;  fnrtha-morek  the 
a<dmlsslons  of  the  i^intlffs  show  that  they 
both  were  familiar  with  automobiles  and 
able  to  appreciate  the  possible  dangers  of 
this  highly  improper  coarse  of  conduct.  As 
already  indicated,  since  the  story  told  by  the 
plaintiffs,  as  to  tbe  management  of  the  mo- 
tor was  rejected  by-  the  Jury,  the  position 
assumed  by  the  former  at  trial  left  but  one 
conclusion  x>osslble;  L  6.,  that  they  had  Join- 
ed the  chauffeur  in  testing  the  dangers  of 
the  situation  created  by  the  way  In  which  the 
car  was  in  fact  being  driven.  Under  tbe  dr- 
cumstances,  we  see  uo  error  In  the  instruc- 
tions complained  of. 

At  this  point  It  Is  but  fair  to  say  that  the 
instructions  in  question  were  coupler  with  a 
correct  and  fair  presentaticm  of  the  plain- 
tiffs' side  of  the  case,  and  the  jurors  were 
plainly  told  that,  if  they  believed  the  tatter's 
testimony,  they  should  render  a  verdict  ac- 
cordingly. 

One  other  assignment  calls  for  considera- 
tion. There  is  an  act  of  assembly  In  New 
Jersey  which  requires  all  vehicles  to  have 
lights  displayed  thereon  during  specified 
hours,  covering  the  time  when  this  accident 
happened ;  onid  the  defendant  admitted  there 
was  no  light  on  its  wagon.  The  trial  Judge 
directed  attention  to  this  state  of  affairs,  and 
Instructed  tbe  Jurors  that,  if  the  absence  of 
a  light  "contributed  to  the  accident,  If  that 

•  *  •  prevented  the  plaintiffs'  chauffeur 
from  seeing  the  horse  and  wagon,  that  may 
be  ccmsldered  by  you  as  an  act  of  n^llgence 
which  caused  the  accident;    •    *    «    and, 

•  •  •  If  *  •  •  there  was  no  negli- 
gence on  the  part  of  the  plaintiffs,  the  plain- 
tlfTs  would  be  entitled  to  your  verdict" 
^niese  instructions  were  practically  the 
last  word  to  the  Jury,  and  we  think  them 
as  favorable  to  appellants  as  they  had  a 
right  to  expect  Had  there  been  a  light 
on  the  wagon,  It  might  have  saveid  the  plain- 
tiffs from  the  result  of  their  own  negli- 
gence in  permitting  the  car  occupied  by 
them  to  be  driven  in  the  manner  In  which 
It  was  operated  on  the  night  of  the  accident; 
but  even  this  Is  hardly  probable,  since  the 
plaintiffs  said  the  acetylene  gaslights  on  the 
front  of  their  automobile  enabled  them  to 
see  at  least  200  feet  ahead.  On  the  other 
hand.  If  the  absence  of  a  Ught  on  the  wagon 
was  not  the  proximate  cause  of  the  accl'dent, 
even  though  an  act  of  negligence  on  the  part 
«f  the  defendant,  It  would  hot  Justify  recov- 
ery by  the  plaintiffs  (Chrlstner  v.  Cumber- 
land &  Elk  Lick  Coal  Co.,  146  Pa.  67,  23  Atl. 


221);    and  this  In  effect  Is  what  the  trial 
Judge  said  to  the  Jury. 

The  .assignments  of  error  are  overruled, 
and  the  Judgments  affirmed. 

(SBT  Pa.  37) 
KUEHNE  V.  BROWN. 

(Supreme  Court  of  Pennsylvania.    March  5, 
1017.) 

1.  MxrwicrPAi,  Cokpobations   c®=»706(6)— Op- 
eration   OF  AlTTOMOBn-E  —  NEOLIOENCE  — 

Question  fob  Jcbt. 
In  an  action  for  injury  from  tbe  negligent 
operation  of  an  automobfle,  where  the  evidence 
of  defendant's  failure  to  blow  his  horn  was  only 
negative,  and  there  was  no  positive  evidence 
that  he-  gave  such  warning,  the  weight  of  tbe 
negative  evidence  was  for  the  Jury. 

[Ed.   Note.— For   other  cases,   see  Municipal 
Corporations,  Cent.  Dig.  {  1518.] 

2.  MuNicrPAi,  CoBposATioNs  «=5>705(3)— Op- 

EBATION  OF  AUTOKOBILB  —  TSsST  —  NBOU- 

In  action  for  personal  injury  to  a  child 
struck  by  an  automobile  while  m  a  highway  be- 
tween crossings,  the  test  of  defendant's  liabilitjr 
was  whether  in  the  exercise  of  due  care  he 
should  have  seen  the  child  in  time  to-  have 
avoided  injury. 

[Ed.  Note. — For  other  case^  see  Municipal 
Corporations,  Cent  Dig.  {  1516.] 

3.  Municipal  Cobpobations  <a=»706(6)— Op- 

EKATION  OF  AUTOMOBILE— PEBSONAI,  INJDBT 

— Question  fob  Jubt. 
In  such  action,  held,  on  the  evidence,  that 
whether  defendant  was  negligent  in  not  seeing 
the  child  in  time  to  have  avoided  the  injury  was 
for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1618.] 

4.  Municipal  Cobpobations  <&=9706(6)— Op- 

EBATION     OF     AUT0UOBII2  —  NKOLIOKNOE  — 

Question  fob  Juby. 
In  a  father's  action  in  his  own  right  for 
injury  to  minor  child  by  defendant's  automobile, 
conflicting  testimony  as  to  its  speed  and  dis- 
tance required  to  come  to  a  stop  made  a  ques- 
tion for  jury  as  to  defendant's  negligence  in  op- 
erating the  car. 

[Ed.   Note. — For  other  cases,   see  Municipal 
Corporations,  Cent  Dig.  {  1518.] 
6.  Pabent  and  CHitn  «=»7(&)— Opkbation  of 

Automobile — Injuby  to  Child — Pabbnt's 

ConTBIBUTOBY  NEaUOENCE. 

Where  the  father  of  a  child,  suing  jointly 
with  him  for  personal  injury  from  defendant's 
automobile,  had  permitted  the  child  to  cross  a 
highway  when  the  automobile  was  approaching 
only  75  feet  away,  notwithstanding  his  state- 
ment that  he  loolced  in  both  directions  and 
saw  nothing  approaching,  he  was  guilty  of  con- 
tributory negligence  barring  a  recovery  in  his 
own  right. 

[Ed.  Note.— For  other  cases,  see  Parent  and 
Child.  Cent  Dig.  g  94.] 

Appeal  from  Court  of  Common  Pleas, 
Philadelphia  County. 

Trespass  by  Paul  Kuehne,  Jr.,  by  his  fa- 
ther  and  next  friend,  Paul  Kuehne,  and  by 
Paul  Kuehne,  In  his  own  right,  against 
George  H.  Brown,  to  recover  for  personal  In- 
juries to  the  minor  plaintiff.  Compulsory 
nonsuit  entered  as  to  both  plaintiffs,  which 
the  court  subsequently  refused  to  take  off. 


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101  ATIiANIIC  niDPORTBR 


(Fa. 


and  plaintiffs  appeal.     Affirmed  as  to  one 
plaintiff,  and  reversed  as  to  the  other. 

Argued  before  BROWN,  G.  J.,  and  MBS- 
TRBZAT,  POTTBR,  STEWART,  and  FRA- 
ZER,  JJ. 

W.  Horace  Hepburn,  Jr.,  of  PbUadelphia, 
for  appellant. 

FRAZER,  J.  This  Is  an  action  by  a  father 
and  bis  minor  child  to  recoyer  for  injuries  to 
the  latter  sustained  by  reason  of  alleged  neg- 
ligence of  defendant  in  operating  his  automo- 
bile. A  nonsuit  was  entered  by  the  court 
below  as  to  both  plaintiffs,  and  from  this  ac- 
tion they  have  appealed. 

At  the  time  of  the  accident,  September  6, 
1015,  the  plaintiff,  Paul  Kuehne,  Jr.,  was  five 
.rears  of  age.  He  and  his  father,  the  other 
plaintiff,  were  standing  on  the  west  side  of 
Rising  Sun  Lane,  near  Comly  street,  in  the 
City  of  PWladelphla,  talking  with  friends. 
This  is  a  suburban  section  of  the  city,  and 
Rising  Sun  Lane  is  about  60  feet  in  width, 
with  trolley  tracks  on  each  side  of  the  street, 
and  a  driveway  for  vehicles  In  the  center ;  the 
driveway  being  of  sufficient  width  to  permit 
three  vehicles  to  stand  abreast.  The  street 
is  without  sidewalks,  but  at  the  place  where 
plaintiffs  were  standing  is  a  platform  con- 
structed of  planks,  and  extending  across  the 
gutter  to  the  car  track.  The  father  with 
his  two  children  were  standing  on  the  plat- 
form referred  to  when  one  of  the  occupants 
of  an  automobile,  occupied  by  the  child's 
mother  and  others  and  standing  on  the  op- 
posite side  of  the  street  from  the  platform 
on  which  the  boy  and  his  father  stood,  called 
to  the  child,  Paul,  that  there  was  room  for 
him  in  the  car.  The  Iray  immediately  started 
to  cross  the  street,  and  was  about  midway 
between  the  platform  and  the  automobile 
when  he  was  struck  by  defendant's  car,  com- 
ing south  at  a  speed  estimated  by  various 
witnesses  at  from  8  or  10  to  40  miles  an  hour. 
There  is  no  dispute,  however,  that  the  horn 
was  not  blown,  or  other  warning  given  of  its 
approach.  Another  car  was  standing  on 
the  same  side  of  the  street  as  the  car  in 
which  Mrs.  Ku^ne  was  seated,  100  feet 
down  the  road  in  the  direction  from  which 
defendant's  automobile  approached,  and,  to 
pass  this  car,  defendant  was  obliged  to  turn 
to  the  left  side  of  the  road.  There  were 
no  obstructions  in  the  street  and  nothing  to 
prevent  defendant  from  seeing  the  persons 
standing  on  the  platform  adjoining  the  rail- 
way tracks,  or  the  boy  on  the  street  after 
leaving  the  platform.  The  distance  from 
the  platform  to  the  point  at  which  the  child 
was  injured  was  estimated,  by  the  witnesses, 
at  from  12  to  20  feet.  Witnesses  also  testified 
that  when  the  child  started  to  cross  the  street 
defendant's  automobile  was  in  the  neighbor- 
hood of  75  or  100  feet  away,  and  that  the 
brakes  were  not  applied  to  the  ear  until  with- 
in about  5  feet  from  the  child,  and  that  fol- 
lowing the  collision  the  automobile  skidded 


on  the  gravel  road  for  a  distance  of  more 
than  30  feet. 

The  court  below  concluded  the  evidence  ot 
negligence  on  the  part  of  defendant  was  in- 
sufficient to  submit  to  the  Jury,  so  far  as  the 
rights  of  the  minor  were  concerned,  for  the 
reason  that  the  accident  did  not  happen  at 
a  street  crossing;  that  the  evidence  of  de- 
fendant's failure  to  give  warning  of  his  ap- 
proach was  negative  only;  and  that  there 
was  nothing  to  impose  upon  him  the  duty  of 
blowing  his  horn  at  the  particular  spot  where 
the  accident  happened. 

[1-S]  In  so  far  as  the  qnestion  of  warning 
is  concerned,  while  the  evidence  of  failure 
to  blow  the  horn  was  negative  <wl7,  there 
was  no  positive  evidence  that  defendant 
gave  such  warning,  consequently,  the  weight 
of  the  negative  evidence  was  for  the  Jury. 
Longenecker  v.  Penna.  R,  R.  CJo.,  105  Pa.  328: 
Haverstick  v.  Penna.  R.  R.  Co.,  171  Pa.  101. 
32  Atl.  112a  However,  to  the  extent  that  the 
rights  of  the  child  are  concerned,  whether 
or  not  warning  was  given  was  not  a  vital 
matter,  as  there  is  no  question  of  contribu- 
tory negligence  on  his  part,  the  sole  ques- 
tion in  his  case  being  whether  defendant, 
in  the  exercise  of  due  care,  should  have  seen 
the  child  In  time  to  avoid  the  accident  The 
evidence  shows  defendant's  view  of  the  road, 
and  of  the  child  on  the  platform  over  the 
gutter  and  also  in  the  street,  was  unob- 
structed, nrnking  the  situation  before  him 
such  as  to  impose  upon  him  the  use  of  due 
care  to  avoid  injuring  those  who  were  right- 
fully using  the  highway,  even  though  there 
was  no  crossing  at  this  particular  point. 
There  is  evidence  from  which  the  Jury  might 
have  found  that  the  child  did  not  suddenly 
dart  in  front  of  the  car  at  a  time  too  late 
for  defendant  to  avoid  the  accident,  but  on 
the  contrary  that  there  was  ample  oppor- 
tunity to  stop  his  car  had  he  been  looking 
ahead.  If  approaching  at  an  extreme  rate 
of  speed,  as  testifled  to  by  several  witnesses, 
and  as  Indicated  by  the  skidding  of  the  ma- 
chine upon  endeavoring  to  stop,  it  cannot 
be  said,  as  matter  of  law,  that  defendant 
was  performing  his  full  duty  toward  those 
who  were  properly  using  the  highway.  As- 
suming the  car  was  operated  at  the  mini- 
mum rate  of  speed,  testifled  to  by  other  wit- 
nesses, no  apparent  excuse  is  shown  for  de- 
fendant not  seeing  the  child  in  time  to  stop 
his  car  and  prevent  the  accident,  in  view  of 
the  testimony  as  to  the  distance  which  he 
traveled  from  the  time  the  child  started  to 
cross  from  the  platform  to  the  automobile, 
and  the  unobstructed  condition  of  the  street. 
Consequently,  the  question  whether  he  had 
notice  of  the  presence  of  the  child  in  the 
road  in  time  to  appreciate  the  danger  and 
avoid  a  collision  was  one  for  the  Jury  to 
determine,  under  proper  instructions  from 
the  court  Tatarewicz  v.  United  Tmctloii 
Co.,  220  Pa.  560,  69  Atl.  995;  Bloom  v. 
Whelan,  56  Pa.  Super.  Ct  277. 
[4,  E]  In  so  far  as  the  rights  of  the  father 


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70 


are  concerned  the  conflicting'  teetlnioqy  as  to 
the  meed  of  the  car,  together  with  the  dis- 
tance required  to  come  to  a  stop,  was  suffl- 
\Aent  to  Bnbmlt  to  the  jury  on  the  qnestion 
of  defendant's  negligence  In  (aerating  the 
car.  As  to  the  contributory  negligence  of 
the  father,  hla  testimony  was  that  before 
permitting  the  child  to  start  across  the  street 
to  the  automobile  in  which  his  wife  was 
seated  he  looked  in  both  directions  and  saw 
no  car  approaching.  Ck>nslderlng  there  was 
an  unobstructed  view  of  the  street  for  300 
or  400  yards,  with  the  exception  of  the  pres- 
ence of  another  automobile,  which  was  about 
100  feet  distant,  and  in  view  ot  the  testi- 
mony that  defendant's  car  was  approximately 
75  feet  away  when  the  child  was  permitted 
to  start  across  the  street,  it  is  useless  for 
plaintiflT  to  say  he  looked  and  did  not  see 
the  automobile  when  it  must  have  been  In 
plain  view  at  the  time ;  hence  his  negligence 
In  permitting  a  child  of  such  tender  years 
to  cross  the  street  alone  is  too  apparent  to 
require  submission  to  the  Jury.  To  the  ex- 
tent, therefore,  that  the  father  is  concerned, 
the  nonsuit  was  proper.  Glassey  v.  Heston- 
vllle,  Mantua  &  Falrmount  Pass.  Ry.  Co.,  57 
Pa.  172;  Johnson  et  ux.  v.  Reading  City 
Pass.  Ry.,  160  Pa.  «47,  28  Atl.  1001,  40  Am. 
St  Rep.  752;  Pollack  v.  Penna.  R.  R.  Co. 
(No.  2)  210  Pa.  634,  60  Atl.  312,  105  Am.  St 
Rep.  846. 

The  fourth  assignment  of  error  is  sus- 
tained, the  Judgment  is  reversed,  and  the 
record  remitted  with  a  new  venire. 


<»7  P«.  88) 

In  re  HUNTER'S  ESTATE  et  al. 

(Supreme  0>urt  of  Pennsylvania.    March  5. 
1917.) 

1.  MoRTaAGES  <S=>559(3)  —  Mortgagee's  Re- 
lease OF  Title— Mobtgagob'b  Personai, 
LiABiLrrr. 

Where'  a  mortgagee  has  parted  with  his  title 
to  the  mortgaged  premises,  his  release  of  part 
thereof  without  the  mortgagor's  knowledge  or 
consent  discharges  the  mortgagor  from  personal 
liabiUty  for  any  loss  to  the  mortgagee  from  a  de- 
fldency  in  the  proceeds  in  a  subsequent  sale  un- 
der foredoaure  proceedings,  as  by  such  release 
the  mortgagee  assumes  the  risk  of  the  nnreleased 
part  of  the  property. 

[Ed.  Note. — ^For  other  cases,  see  Mortgages, 
Cent  Dig.  {  1592,] 

2.  MoBTOAOKs  4=9559(3)— Penal  Bokd— Lia- 
bility. 

In  an  audit  of  the  account  of  a  substituted 
trustee  of  an  assigned  estate,  it  appeared  that 
prior  to  the  assignment  the  assignor  had  mort- 
gaged real  estate  and  had  given  a  penal  bond  to 
further  secure  the  mortgage  debt,  and  that  sub- 
sequent to  the  assignment  parts  of  the  realty 
were  released  from  the  lien  of  the  mortgage, 
without  the  mortgagor's  knowledge  or  consent, 
and  that  the  mortgaged  premises  were  after- 
wards sold  for  a  sum  insufficient  to  pay  the 
mortgage.  Held,  that  the  mortgagor  was  dis- 
charged of  any  liability  on  the  bond. 

[Ed.   Note. — For  other  cases,  see  Mortgages, 
Cent  Dig.  {  1592.] 


Appeal  from  Court  «f  Common  Pleas,  PhU- 
adelpbla. 

Henry  K.  Fox,  execute  of  the  estate  ot 
Elizabedi  M.  Lassalle,  deceased,  appeals  from 
a  decree  dismissing  exceptions  to  the  report 
of  Charles. H.  Mathews,  auditor,  in  the  mat- 
ter of  the  estate  of  James  Hunter  and  John 
Hunter,  Individually,  -and  as  copartners.  Af- 
firmed. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER,  MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

F.  B.  Vogel  and  Henry  K.  Fox,  both  of 
Philadelphia,  for  appellant.  George  Sterner 
and  Charles  R.  Maguire,  both  of  Philadelphia, 
for  appellees. 

WALLING,  J.  This  is  an  appeal  from  a 
decree  of  distribution  of  an  assigned  estate. 
In  1887  John  Hunter  Individually  and  the 
firm  of  James  and  John  Hunter  made  a  gen- 
eral assignment  to  John  Field,  for  benefit  of 
creditors.  Prior  thereto  in  1878  said  James 
Hunter  and  John  Hunter,  being  the  owners 
of  certain  lands,  comprising  about  32  acres, 
and  situate  near  Fifty-Fifth  street  and  Lan- 
caster avenue,  Philadelphia,  executed  a  mort- 
gage thereon  and  an  accompanying  bond  to 
Wm.  C.  Houston,  administrator,  etc.,  to  se- 
cure a  loan  of  $27,000,  payable  in  three  years, 
with  interest.  Some  days  later  John  Hunter 
conveyed  his  interest  in  the  mortgaged  prem- 
ises to  James  Hunter,  who  thereafter  and  be- 
fore the  assignment  executed  a  second  mort- 
gage upon  £he  same  property,  by  virtue  of 
which,  subsequent  to  the  assignment,  the 
same  was  sold  by  the  sheriflT  and  the  title 
thereto,  subject  to  the'  prior  mortgage,  be- 
came vested  in  Margaret  D.  Hunter,  who 
died  in  May,  1891,  intestate.  And  In  Decem- 
ber of  .the  same  year,  by  partition  among 
her  heirs,  such  title  became  vested  In  Wm. 
D.  Hunter.  There  then  remained  unpaid  on 
the  first  loan  the  sum  of  $10,000.  However, 
such  title  so  vesting  in  Wm.  D.  Hunter  did 
not  include  all  the  lands  embraced  in  the 
orlgloal  mortgage,  some  having  been  released 
meantime  as  hereinafter  stated.  On  May  26, 
1801,  the  administrator  entered  Judgment 
on  the  bond  accompanying  the  first  mortgage; 
and  on  November  18,  1892,  he  assigned  the 
bond  and  mortgage  to  James  M.  Connely,  the 
father-in-law  of  Wm.  D.  Hunter,  for  the  con- 
sideration of  ?10,000. 

Between  the  date  of  the  assignment  for 
benefit  of  creditors  and  the  time  of  the  trans- 
fer of  the  bond  and  mortgage  to  Connely. 
the  holder  of  the  first  mortgage  had  released 
from  the  lien  thereof  twelve  separate  pieces 
of  land;  some  of  which  were  released  for 
the  nominal  consideration  of  $1  -each.  And 
it  does  not  appear  that  the  original  mort- 
gagors, or  their  assignee,  consented  to  such 
release  or  had  knowledge  thereof.  On  No- 
vember 23,  1894,  at  the  instence  of  Connely 
and  on  the  Judgment  entered  on  the  bond 


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as  aforesaid,  all  of  the  nnreleased  part  of  the 
land  Included  In  the  first  mortgage  was  sold 
by  the  sheriff  for  $2,000,  at  which  sale  Con- 
nely  became  the  purchaser,  and  on  the  same 
day  conveyed  a  portion  of  the  premises  so 
bought  by  him  to  James  Dunlap  for  115,000. 
Two  months  later  Connely  assigned  the  mort- 
gage and  judgment  entered  on  the  bond  to 
his  son-in-law,  Wm.  D.  Hunter,  for  the  con- 
sideration of  $1;  and  the  latter  same  day 
reassessed  the  damages  on  the  Judgment  at 
$9,281.66.  And  on  February  7,  1895,  Con- 
nely, also  for  the  consideration  of  $1,  made 
a  deed  to  his  said  son-in-law  for  the  balance 
of  the  land  Included  in  the  sheriff's  sale 
"subject  to  existing  Incumbrance."  On  the 
5th  of  the  following  June,  Wm.  D.  Hunter 
sold  the  land  conveyed  to  him  by  the  said 
last-named  deed  to  James  B.  Johnson  for 
$12,000,  "clear  of  Incumbrance";  by  various 
transfers,  the  first  mortgage  and  judgment 
on  the  accompanying  bond  became  vested  in 
appellant  In  1907.  Since  that  date  the  Judg- 
ment has  been  twice  revived,  and  on  each 
occasion  judgment  was  entered  for  want  of 
an  appearance,  on  two  returns  of  "nihil 
habet."  The  last  of  these  judgments  was 
entered  February  20,  1914,  at  which  time 
the  damages  were  assessed  at  $22,351.22. 
James  Hunter  died  In  1896,  John  Field  in 
1904,  and  John  Hunter  in  1910.  The  assignee 
filed  a  partial  account  In  1889  and  a  final  ac- 
count In  1897,  both  being  duly  audited  and 
confirmed,  and  no  claim  being  presented  on 
account  of  the  first  mortgage  and  bond  at 
either  of  the  audits. 

In  1906  Herman  H.  Wilson  was  appointed 
substituted  trustee  In  place  of  John  Field, 
then  deceased.  And  in  1911  the  substituted 
trustee  filed  an  account  showing  a  balance 
in  his  bands  as  the  proceeds  of  a  private 
sale  of  real  estate,  formerly  the  property 
of  John  Hunter.  An  auditor  was  appointed 
to  pass  upon  exceptions  and  report  distribu- 
tion of  the  balance;  and  before  faim  appel- 
lant presented  his  claim  on  the  revived  judg- 
ment Other  claims  amounting  to  $100,976.07 
were  also  presented  and  proven  before  the 
auditor;  and  to  such  other  claims  the  net 
fund  for  distribution,  amounting  to  $1,790.79, 
was  distributed  by  the  auditor  and  court 
below,  to  the  exclusion  of  appellant's  claim; 
and  this  appeal  was  taken  from  the  final 
decree  of  distribution  of  the  fund. 

[1]  We  entirely  agree  with  the  condnsion 


reached  by  the  court  below.  Where  the 
mortgagor  has  parted  with  his  title  to  the 
mortgaged  premises,  a  release  of  a  part  there- 
of by  the  mortgagee,  without  the  knowledge 
or  consent  of  the  mortgagor,  will  discharge 
the  latter  from  personal  liability  for  any 
loss  to  the  mortgagee  resulting  from  a  de- 
ficiency In  the  proceeds  of  a  subsequent  sale 
In  foreclosure  proceedings.  Meigs  v.  Tun- 
nlcllffe,  214  Pa.  495,  63  Atl.  1019,  112  Am. 
St  R^.  769,  6  Ann.  Cas.  549.  See  opinion 
by  Mr.  Justice  Stewart.  By  such  release 
the  mortgagee  assumes  the  risk  of  the  nn- 
released portion  of  the  property  being  of 
sufficient  value  to  secure  his  debt  That  he 
was  not  mistaken  in  this  case  appears  from 
the  fact  that  shortly  after  the  sherUTs  sale 
such  nnreleased  property  was  resold  for  more 
than  double  the  amount  unpaid  on  the  mort- 
gage. However,  in  the  absence  of  fraud  or 
collusion  at  the  sheriff's  sale,  the  profits 
on  such  resales  would  not  inure  to  the  ben- 
efit of  the  original  mortgagors. 

[2]  The  rights  of  creditors  were  fixed  by 
the  assignment;  and  while  the  confession  of 
judgment  thereafter  upon  the  bond  would  as 
against  the  mortgaged  premises  relate  back 
to  the  recording  of  the  mortgage,  it  would 
not  give  the  obligee  In  such  bond  any  rights 
superior  to  those  of  other  creditors  as  to  the 
balance  of  the  assigned  estate.  The  entry  of 
such  judgment  did  not  create  a  Hen  on  land, 
aside  from  the  mortgaged  premises,  which 
had  previously  passed  from  the  mortgagors 
by  deed  of  assignment  for  benefit  of  credi- 
tors. Cowan,  Casey  &  Hutkoff  v.  Penna. 
Plate  Glass  Co.,  184  Pa.  1,  38  AtL  1076.  TtiO 
act  of  AprU  2,  1822  (7  Smith's  Laws,  551; 
Stewart's  Purdon,  vol.  1,  p.  1185),  to  which 
our  attention  was  called  at  bar,  authorizes 
the  collection  of  the  mortgage  debt  from  the 
nnreleased  part  of  the  premises,  and  provides 
for  the  protection  of  the  rights  of  the  re- 
spective part  owners  under  such  circum- 
stances, bat  makes  no  reference  to  the  per- 
sonal liability  of  the  mortgagor,  and  Is  not 
applicable  to  this  case.  As  in  our  opinion  the 
release  above  stated  of  parts  of  the  mort- 
gaged premises  is  a  complete  answer  to  ap- 
pellant's claim  OR  the  fund  for  distribution, 
it  is  not  deemed  necessary  to  discuss  other 
features  of  the  case. 

The  assignments  of  error  are  overruled, 
and  the  decree  aflarmed  at  the  costs  of  the 
appellant 


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AFFEAIi  OF  SCHELIiKK 


81 


(91  Conn.  709) 

Appeal  of  SOHBLLEN. 

(Snprane  Court  ot  Ehrrore  of  Connecticnt.    Jnne 

14,  1917.) 

Municipal  Cobpor.\tion8  ®=»514(7)— Publio 

improvemenis — aeskssuents. 
Where  the  city  has  constructed  a  sewer  im- 
provement,  collected  all  the  assessments  there- 
for, and  made  full  payment,  it  cannot  raise  an 
amount  in  excess  of  the  cost  by  assessing  benefits 
to  one  who  has  subsequently  erected  a  dwelling 
and  made  connections  with  the  sewer. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1211.] 

Appeal  from  Superior  Court,  New  London 
County ;    Milton  A.  Shumwa.y,  Judge. 

In  the  matter  of  sewer  assessment  of  the 
borough  of  Groton.  From  a  judgment  con- 
firming an  assessment  of  benefits  for  sewer 
Improvement,  Pierre  U  Schellen,  an  abutting 
landowner,  appeals.    Reversed  and  remanded. 

The  borough  of  Oroton  is  empowered  by 
Its  charter  to  lay  out  and  construct  a  sewer 
system,  to  have  Bupervlslcm  and  control  of 
the  same,  and  to  assess  against  persons  whose 
property  is  specially  benefited  thereby  such 
sums  as  they  ought  justly  and  equitably  to 
pay  therefor  to  be  determined  according  to 
such  rule  of  assessment  based  upon  frontage 
and  area,  either  or  both,  as  it  may  adopt  as 
being  just  and  reasonable.  Pursuant  to  this 
authority,  the  borough,  in  1913  and  1914, 
laid  Di't  and  consttructed  a  sewer  system,  and 
assessed  against  the  several  owners  of  land 
abutting  on  the  streets  in  which  it  was  built 
the  estimated  cost  of  Its  construction.  This 
assessment  was  completed  in  May,  1913.  The 
appellant,  as  the  owner  of  a  tract  of  land 
located  at  the  comer  of  Broad  and  Bams- 
dell  streets,  was  one  of  the  persons  assessed. 
He  and  all  others  against  whom  the  assess- 
ments were  made  paid  the  amounts  thereof 
to  the  borough.  Preparatory  to  making  these 
assessments,  the  borough,  acting  under  the 
authority  of  its  charter,  adopted  a  rule  for 
the  assessment  of  benefits  which  provided 
that  the  estimated  cost  of  the  work  should  be 
assessed  on  the  property  specially  benefited 
In  the  proportion  of  four-tenths  to  frontage 
and  six-tenths  to  area ;  the  area  to  be  calcu- 
lated to  a  line  parallel  with  and  not  more 
than  100  feet  distant  from  the  street  front- 
age. The  rule  provided  for  a  departure  from 
Strict  adherence  to  the  above  provisions 
where  such  adherence  would  lead  to  Injustice 
and  for  a  certain  frontage  exemption  in  the 
case  of  comer  lots.  It  was  provided  that 
the  rate  of  assessment  should  be  60  cents  per 
lineal  foot  ot  frontage,  and  7%  mills  per 
square  foot  of  area  benefited.  The  assess- 
ments of  1913  were  made  in  conformity  to 
this  rale.  No  change  in  or  addition  to  any 
ot  the  sewers  has  been  made  since  their  orig- 
inal construction  in  1913  and  1914. 

Subsequent  to  May,  1918,  the  appellant 
built  a  house  upon  his  land  which  was  lo- 
cated more  than  100  feet  from  the  street 


and  connected  the  same  with  the  sewer,  and 
certain  others  did  likewise.  A  modification 
of  the  rule  of  assessment  was  then  made  by 
the  borough  so  that  it  was  provided  that  in  all 
cases  where  a  house  situated  more  than  100 
feet  from  the  street  should  be  connected  with 
the  sewer,  a  further  and  additional  assess- 
ment should  be  made  against  the  owner 
on  account  of  the  sewer  with  which  connec- 
tion was  made,  such  additional  assessment 
to  be  made  at  the  rate  of  7%  mills  per  square 
foot  of  area  upon  so  much  land  not  thereto- 
fore covered  by  the  existing  rule  as  would  be 
included  within  a  circle  having  a  radius  of 
50  feet  from  the  center  of  the  house.  Fol- 
lowing this  modification  and  pursuant  to  its 
provisions,  an  additional  assessment  was 
made  against  the  appellant  amounting  to 
$255.16.  From  that  assessment  the  present 
appeal  was  taken. 

Other  facts  not  pertinent  to  the  opinion 
need  not  be  stated. 

Jeremiah  J.  Desmond,  of  Norwich,  and 
Warren  B.  Burrows,  of  New  London,  for 
appellant.  Arthur  T.  Keefe,  of  New  London, 
for  appellee. 

PRENTICE,  C.  J.  (after  stating  the  facts  as 
above).  It  is  an  open  question  whether  the 
borough's  power  to  assess  benefits  on  account 
of  this  public  Improvement  was  not  exhaust- 
ed before  the  attempted  assessment  appealed 
from  was  made  In  1916,  even  though  the  actu- 
al cost  of  the  work  exceeded  the  estimated 
cost  which  was  originally  assessed  and  scxne 
portion  of  the  actual  cost  remained  undis- 
tributed over  the  property  specially  benefited. 
City  of  Chicago  v.  People  ex  rel.  Norton,  66 
lU.  327,  332;  Meech  v.  City  of  Buflfalo,  29 
N.  Y.  198,  215.  Doubtless  authority  to  make 
a  supplemental  assessment  to  cover  cost  not 
already  assessed  may  be  conferred  by  stat- 
ute; but  there  appears  to  be  no  sudi  grant 
of  power  to  the  borough  of  Groton.  That 
question,  however,  is  one  which  we  have  no 
occasion  to  answer,  since  it  nowhere  appears 
in  this  record  that  the  actual  cost  of  the 
sewer  system  constructed  exceeded  its  esti- 
mated cost  which,  pursuant  to  the  rule  adopt- 
ed by  the  borough,  was  assessed  on  the  prop- 
erty specially  benefited  and  by  the  owners 
of  that  proi)erty  wholly  paid  In.  In  so  far  as 
appears,  the  borough  has  been  fully  compen- 
sated for  the  cost  of  construction  by  the  prop- 
erty owners  q>eclally  benefited  and  assessed. 
It  is  without  authority  to  raise  an  amount  in 
excess  of  the  cost  of  a  public  improvement 
through  the  medium  of  an  assessment  of 
benefits,  and  that  for  aught  that  appears  is 
what  the  borough  undertook  to  do  when  it 
made  the  assessment  of  1916  against  the  ap- 
pellant 

There  is  error;  the  Judgment  is  set  aside, 
and  the  cause  remanded,  with  directliMJ  to 
vacate  the  assessment  appealed  from.  The 
other  Judges  concurred. 


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1(0.  ATLANTIC  BGPORTEB 


(Conn. 


(91  Conn.  <80) 

PICKETT  T.  BUIOKOLDT. 

(Supreme  Court  of  Errors  of  Oonnecticnt    June 
14,  1917.) 

1.  Insane  Peksons  <S=392— Action  bt  Con- 

8ERV.\T0R. 

Action  to  recover  property  of  an  incapable 
person  would  not  be  defeated  because  brought 
in  his  coDservator's  own  name  and  not  in  the 
ward's  name,  where  the  complaint  alleged  the 
conservator  brought  the  action  as  such  conserve 
ator,  since  be  was  the  proper  person  to  brini; 
the  action,  and  under  Ueu.  St.  1902,  $|  622,  023, 
as  to  nonjoinder  and  misjoinder  and  substi- 
tuting plaintiff,  the  ward's  name  might  be  sub- 
stituted on  motion. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §{  ICl,  1G2.] 

2.  Insane  Pebsons  «=»44  —  Action  bt  Con- 
servator—Death  OF  Incapable  Person. 

Death  of  an  incapable  person  docs  not  abate 
action  brought  for  his  benefit  by  his  conserv- 
ator. 

[Ea.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  §§  CO,  70.] 

3.  Insane  Perso.ns  €=44— Action  by  Con- 
servator—Death OF  Incapablf,  Person- 
Substituted  Plaintiff— Admi.vistrator. 

Where  conservator  of  an  incapable  person 
had  sued  in  his  own  name  for  benefit  of  the 
ward,  on  the  ward's  death  his  administrator  had 
a  right  to  be  substituted  as  plaintiff  under  Gen. 
St.  1902,  i  62.3,  as  to  subxtituted  plaintiff,  and 
Survival  Act  (Pub.  Acts  1903,  c.  193)  I  1. 

[Ed.  Not©.- For  other  cases,  see  Insane  Per- 
sons, Cent.  I>ig.  i§  C9,  TO.J 

4.  Insane  Persons  €=»44  —  Action  by  Con- 
servator —  Death  of  Incapable  Person  — 
Survival  of  Cause  of  Action— "iUQUT  of 
Action." 

I'ndor  the  Survival  Act,  I  1,  providing  that 
"no  cauNe  or  right  of  action  shall  be  lost  or 
destroyed  by  death,  etc.,  survival  of  actions  is 
the  rule  and  not  the  exception,  and  the  presump- 
tion is  that  every  cause  or  right  of  action  sur- 
vives until  the  contrary  is  made  to  appear;  the 
phrase  "right  of  action"  including  the  rignt  to 
commence  and  maintain  an  action  and  being 
broad  enough  to  include  a  right  to  be  admitted 
to  prosecute  a  pending  action  either  as  a  co- 
plaintiff,  or  substituted  plaintiff  (citing  Words 
^ud  Phrases,  Right  of  Action). 

[Ed.  Note. — For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  §§  09,  70.] 

3.  Insane  Persons  <&=>44— Action   bt  Cok- 
sebvator — Deatu  of  Incapable  Person — 
Sucstitutio.v    op   Parties   —   Motion    to 
Erase  from  Docket. 
Under  Gen.  SL  1902,  |  622,  providing  that 
no  action  shall  be  defeated  by  nonjoinder  or  mis- 
joinder of  parties,  where  administrator  of  an 
incapable   person    after    his   death    entered    to 
prosecute  nnder  Survival  Act,  §  2,  an  action 
conunenced  for  such  person  in  his  lifetime  by  his 
conservator  in  bis  own  name,  instead  of  apply- 
ing to  be  substituted  as  plaintiff  under  Gen.  St. 
1902,  §  623,  as  to  stibstituted  plaintiff,  defend- 
ant's appropriate  remedy  was  not  a  motion  to 
dismiss  and  erase  from  the  docket,  but  a  motion 
to  strike  from  the  record  the  entry  to  prosecute. 
[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  §§  69,  70.] 

Appeal  from  Superior  Court,  New  Haven 
County ;   Joseph  P.  Tuttle,  Judge. 

Action  by  Edwin  S.  Ilckett,  Conservator, 
against  George  W..  Rulckoldt  ITrom  order 
erasing  case  from  docket,  plaintiff  appeals. 


Error,  and  cause  remanded,  wltb  dlrectioii  to 
restore  it  to  docket 

Leonard  M.  Daggett  and  Robert  J.  Wood- 
ruff, botb  of  New  Haven,  for  appellant  Phil- 
ip Pond  and  Louis  M.  Rosenbluth,  both  of 
New  Haven,  for  appellee. 

BEACH,  J.  This  action  was  brought  by 
the  conservator  in  his  own  name  to  recover 
real  and  personal  pr(^erty  alleged  to  have 
been  transferred  without  consideration  by 
the  ward  to  his  brother,  while  under  the  un- 
due Influence  of  the  transferee.  Before  any 
answer  .was  filed  the  ward  died,  and  the 
Union  &  New  Haven  Trust  Company,  his 
administrator,  entered  to  prosecute.  Ten 
months  afterward  the  defendant  filed  a  sug- 
gestion on  the  record  of  the  termination  of 
the  conservatorship,  and  moved  that  the 
cause  be  dismissed  and  erased  from  the  dock- 
et. The  motion  was  granted  on  the  ground 
that  the  action  was  originally  improperly 
brought  In  the  name  of  the  conservator,  and 
not  in  the  name  of  the  ward  by  the  conserva- 
tor acting  in  his  behalf ;  that  as  the  action 
never  stood  In  the  name  of  the  deceased  ward. 
the  statute  authorizing  the  administrator  of 
a  deceased  plaintiff  to  enter  and  prosecute 
does  not  Applj ;  and  that  ainoe  no  motiCHi  was 
made  to  substitute  one  plaintiff  for  another, 
the  action  was  without  a  plaintiff.  The  old 
rule  was  that  a  conservator  could  not  main- 
tain an  action  to  collect  the  ward's  debts  In 
his  own  name  as  conserrntor.  Treat  v.  Peck, 
5  Conn.  280;  Hutchins  v.  Johnson,  12  Conn. 
376,  30  Am.  Dec.  '622;  Riggs  v.  Zaleskl,  44 
Conn.  120.  Even  if  the  rule  still  prevails, 
the  consequences  of  a  failure  to  observe  it  are 
very  different  now  from  .what  they  were 
when  Rlggs  v.  Zaleski  was  decided  in  1876. 

[1]  The  conservator  was  the  proper  per- 
son  to  bring  the  action,'  and  In  his  complaint 
he  alleges  thnt  he  brings  it  as  the  conserva- 
tor of  Arthur  Rulckoldt.  Under  sections  622 
and  623  of  the  General  Statutes,  the  action 
could  not  have  been  defeated,  in  Ruickoldt's 
lifetime,  because  not  brought  in  his  name. 
Being  on  the  face  of  the  complaint  beneficial- 
ly interested,  his  name  might  have  been  en- 
tered or  substituted  as  a  plaintiff,  on  motion. 
In  the  meantime,  the  action,  even  if  brought 
by  the  wrong  plaintiff,  was  still  pending.  As 
was  said  in  nowen  v.  National  Life  Ass'n,  63 
Conn.  460,  476,  27  Atl.  1009,  1062,  the  Prac- 
tice Act  has  "radically  changed  the  old  prac- 
tice with  reference  to  joinder,  admission  and 
dr(H>plng  of  the  parties  to  a  suit,  and  the 
changes  were  intentionally  and  deliberately 
made." 

[2]  When  Rulckoldt  died  the  action  did 
not  abate;  nor  was  the.  consei-vator  dis- 
charged by  his  ward's  death.  He  still  had 
the  estate  in  his  hands  and  must  account 
for  it  to  the  court  of  probate.  Until  he  .wus 
discharged  the  action  was  not  without  a 
plaintiff  and,  subject  to  possible  objection 


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BLUE  RIBBON  GARAGE  v.  BALDWIN 


83 


which  the  defendant  did  not  make,  It  remain' 
ed  pending  In  court,  with  the  conservator  as 
the  sole  nominal  plaintiff,  until  August  7, 
1915,  when  the  administrator  entered  to  pros- 
ecute. If  the  administrator  then  had  a  right 
to  enter,  the  action  remained  lu  court  with 
two  plaintiffs,  until  the  final  account  of  the 
conservator  was  accepted  and  he  was  dis- 
charged by  the  court  of  probate.  The  record 
does  not  show  when  the  couserrator  was  dis- 
charged, but  that  fact  was  not  suggested  on 
the  record  until  May,  1916,  ten  months  after 
the  administrator  had  entered  to  prosecute. 

[3]  We  think  the  administrator  had  a  right 
to  be  substituted  as  plaintiff  under  section 
623  of  the  General  Statutes.  Rulclcoldt  was 
the  party  for  .whose  benefit  the  action  was 
brought,  and  his  right  to  be  substituted  as  a 
plaintiff  In  the  action  was  a  substantial  right 
which  survived  to  the  administrator. 

[4]  The  broad  language  of  section  1  of  the 
Survival  Act  of  1903  Is  that : 

"No  cause  or  right  of  action  shall  be  lost  or  de- 
stroyed by  the  death  of  any  person,  but  shall 
survive  in  favor  of  or  against  the  executor  or 
administrator  of  such  deceased  person." 

Under  this  statute  the  survival  of  actions 
Is  the  rule  and  not  the  exception,  and  the 
presumption  is  that  every  cause  or  right  of 
action  survives  until  the  contrary  is  made 
to  appear  by  way  of  exception  to  the  rule. 
The  phrase  "right  of  action"  includes  the 
right  to  CMnmence  and  maintain  an  action. 
Words  and  Phrases  (voL  7)  p.  6266.  It  Is 
broad  enough  to  include  a  right  to  be  admit- 
ted to  prosecute  a  pending  action  either  as  a 
coplaintlff,  or  substituted  plaintiff;  and  un- 
der section  623  the  administrator  had  a  right 
to  be  sut)stltuted  as  plaintiff  in  place  of  the 
conservator.  Nobody  would  doubt  that  the 
administrator  of  a  decedent,  who  ought  to 
have  been  made  a  defendant,  but  was  omitted 
through  mistalce,  could  be  Joined  as  defendant 
in  an  action  which  survived  against  the  es- 
tate, and  we  see  no  reason  why  the  admin- 
istrator of  a  decedent  who  ought  to  have 
been  joined  as  a  plaintiff,  but  was  omitted 
through  mistalce,  may  not  be  admitted  as  a 
coplaintlff,  or  as  substituted  plaintiff,  if  nec- 
essary, in  a  pending  action  which  survives  in 
favor  of  the  estate. 

.  [8]  Strictly  speaking,  the  right  which  sur- 
vived to  the  administrator  In  this  case  was 
the  very  same  right  .which  the  decedent  had 
in  his  lifetime ;  viz.  the  right  to  be  substitut- 
ed as  plaintiff  under  section  623  of  the  Gen- 
eral Statutes.  It  is  therefore  true,  as  the 
memorandum  of  the  superior  court  suggests, 
that  the  administrator  ought  to  have  made 
application  under  that  statute  to  be  substitut- 
ed as  plaintiff.  Instead  of  entering  to  prose- 
cute under  section  2  of  the  Survival  Act. 
Nevertheless  he  succeeded  in  making  himself 
a  party  on  the  record  by  entering  to  prose- 
cute, and  the  defendant's  real  grievance  was 
not  that  the  administrator  had  no  right  to 
come  into  the  action,  but  that  be  had  come  in 


through  the  wrong  door.  That  being  so,  the 
appropriate  remedy  was  not  a  motion  to  dis- 
miss and  erase  from  the  docket,  but  a  motion 
to  strike  from  the  record  the  entry  to  prose- 
cute. Section  622  of  the  General  Statutes 
provides  that  "no  action  shall  be  defeated  by 
the  nonjoinder  or  misjoinder  of  parties"; 
and  this  must  include  the  lesser  proposition 
that  no  action  should  be  defeated  because 
the  right  party  came  into  it,  or  attempted  to 
come  into  it,  in  the  wrong  way. 

There  is  error,  and  the  cause  is  remanded, 
with  direction  to  restore  it  to  the  docket. 
The  other  Judges  concurred. 


(n  Conn.  674> 
BLUB  RIBBON  GARAGE,  Inc..  r.  BALD- 
WIN et  aL 

(Supreme  Court  of  Errors  of  .Connecticut.    June 
14,  1917.) 

1.  Btixs  Airn  Notes  *=»414— Noticb  or  Dis- 

EONOE. 

Under  Negotiable  Instrumeiits  Law  (Pub. 
Laws  1897,  c.  74)  as  well  as  the  former  law 
merchant,  a  holder  for  collection  of  negotiable 
paper,  which  has  been  dishonored,  performs  his 
full  duty  in  respect  to  notice  of  its  dishonor  by 
giving  such  notice  in  due  form  and  time  to  the 
party  from  whom  he  receives  it 

[Ed.   Note.— For   other   cases,   see   Bills  and 
Notes,  Cent.  Dig.  §§  1142,  1148-1155.] 

2.  Bills  and  Notes  ®=>414 — Notick  of  Dis- 

HONOB. 

Under  Negotiable  Instruments  Law,  as  well 
as  former  law  merchant,  where  negotiable  pa- 
per before  presentment  has  passed  through  sev- 
eral hands,  whether  of  mere  holders  for  collec- 
tion or  of  parties  beneficially  interested  therein, 
notice  given  by  each  holder  in  turn  to  the  prior 
one  from  whom,  it  was  received  is  notice  suffi- 
ciently given  to  fix'  the  liability  of  all  indorsers 
included  in  the  chain  of  notice,  each  holder  for 
collection  being  regarded  as  a  real  holder,  and 
his  relation  to  the  party  from  whom  the  paper 
is  received  being  such  that  the  latter  is  entiued 
to  be  treated  as  his  immediate  principal;  and 
it  is  not  necessary  that  notice  of  dishonor,  to 
be  effective  in  fixing  the  liability  of  indorsers, 
should  be  given  by  the  holder  at  presentment  di- 
rectly to  the  beneficial  owner,  disregarding  all 
intervening  holders  for  collection  only. 

[Ed.   Note.— For  other  cases,   see  Bills   and 
Notes,  Cent  Dig.  §§  1142,  1148-1155.] 

3.  Bnxs  AND  Notes  <g=>539— Action  Against 
Indobseb— Findings  of  Fact. 

In  action  against  indorser  of  a  note  which 
had  been  sent  to  a  trust  company  for  collection, 
a  finding  that  the  trust  company  had  never  been 
plaintiff's  agent  for  any  purpose  whatsoever 
might  be  disregarded  as  a  mere  conclusion  of 
law ;  the  facts  showing  the  trust  company  to  be 
a  holder  for  collection  and  therefore  as  matter 
of  law  the  owner's  agent. 

[Ed.  Note.— For  other   cases,   see   Bills   and 
Notes,  Cent  Dig.  §S  1911-1913,  1934.] 

4.  Bills  and  Notes  €=»420— Notice  of  Dis- 

HONOB. 

Where  the  holder  of  a  note,  receiving  notice 
of  its  dishonor,  notified  a  prior  indorser  and 
the  original  payee  of  the  dishonor  by  telephone 
and  personal  visit  and  oral  notification  respec- 
tively, this  was  sufficient  compliance  with  the 
Negotiable  Instruments  Law. 

[Ed.  Note.— For  other  cases,   see   Bills   and 
Notes.  Cent  Dig.  {§  1138-1140.] 


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101  A.TLANTIO  REPORTBB 


(Conii. 


Appeal  from  Court  of  Common  Pleas,  Falr- 
3eld  County;    John  J.  Walsh,  Acting  Judge. 

Action  by  the  Blue  Ribbon  Garage,  Ineor^ 
porated,  against  R.  L.  Baldwin  and  others. 
From  Judgment  for  plaintiff,  the  named  de- 
fendant and  others  appeaL     No  error. 

On  February  15,  1915,  the  plaintiff  be- 
came the  owner  of  the  note  in  suit  in  part 
payment  for  the  sale  to  the  defendant  Bald- 
win of  an  automobile.  The  note  was  drawn 
by  the  defendant  the  State  of  Maine  Lumber 
Company,  to  the  order  of  the  defendant  At- 
water,  and  was  made  payable  at  the  Con- 
necticut Trust  &  Safe  Deposit  Company,  of 
Hartford.  It  bore  the  indorsements  of  the 
Ave  individuals  who  were  made  defendants, 
Including  Atwater  and  Baldwin,  against 
whom  judgment  was  rendered.  The  plain- 
tiff still  owns  the  note,  which  remains  un- 
paid. The  date  of  maturity  was  Match  2, 
1915. 

February  26, 1915,  the  plaintiff  deposited  it 
for  collection  with  the  First  Bridgeport  Na- 
tional Bank  of  Bridgeport.  That  bank  for- 
warded it  in  due  course  of  business  to  their 
agents,  the  State  Bank  of  Albany,  for  col- 
lection. The  State  Bank  of  Albany  in  like 
manner  forwarded  it  for  collection  to  Its 
agents,  the  Hartford  National  Bank  of  Hart- 
ford. On  or  before  the  morning  of  March  2, 
1915,  the  last-named  bank  delivered  it  to  the 
Connecticut  Trust  &  Safe  Deposit  Company, 
the  place  of  payment.  Payment  not  having 
been  made  at  the  close  of  business  upon  that 
day,  it  was  handed  by  the  discount  clerk  of 
the  trust  company  to  Its  teller,  who  demand- 
ed payment,  and,  no  payment  having  been 
made,  wrote  across  the  face  of  the  note: 
"Protested  for  nonpayment  Mar.  2,  1915, 
Harvey  W.  Corbln,  Notary  Public."  He  then 
made  a  certificate  of  protest  and  ten  notices 
of  protest,  one  addressed  to  each  of  the  banks, 
and  each  party  whose  name  appeared  upon 
the  note,  pinned  the  certlflcate  to  the  orig- 
inal note  and  placed  the  note  and  certificate 
thus  attached,  together  with  the  ten  copies  of 
the  notice  of  protest,  in  an  envelope  and  mail- 
ed it  with  Its  Inclosures,  Including  two-cent 
stamps  for  each  notice  save  one,  to  the  Hart- 
ford National  Bank.  On  the  following  day, 
the  last-named  bank  mailed  the  note,  certifi- 
cate of  protest,  and  notices,  save  only  the  no- 
tice to  itself,  to  the  State  Bank  of  Albany. 
On  March  5th,  the  First  Bridgeport  Nation- 
al Bank  received  from  that  bank  In  the  first 
mail  the  same  inclosures  less  the  notice  to  the 
State  Bank  of  Albany.  The  Bridgeport  bank 
Inmiedlately  thereafter  renialled  them,  less 
the  notice  to  it,  to  the  rlai"tW.  who  received 
them  during  the  forenoon  of  the  same  day. 
Upon  that  day  Baldwin  was  notified  by  the 
plaintiff's  treasurer  by  telephone  of  the  dis- 
honor. On  the  following  day,  Atwater,  who 
resided  in  New  Haven,  was  visited  by  the 
plaintiff's  agent  and  orally  notified.  No  at- 
tempt was  made  by  the  plaintiff  to  notify  the 
other  indorsers. 


i  George  E.  Beers,  of  New  Haven,  and  Dan- 
iel J.  Danaher,  of  Meriden,  for  appellants 
Baldwin  and  Atwater.  Jotm  Smith,  oC 
Bridgeport,  for  appellea 

PRENTICE,  O.  J.  (after  stating  the  facts 
as  above).  [1,2]  The  course  of  condact  of 
the  notary  who  made  presentment  of  the  note 
In  suit  and  of  the  several  banks  through 
whose  bands  it  passed  In  the  collection  pro- 
cess conformed  strictly,  in  so  far  as  notice 
of  dishonor  was  concerned,  to  the  require- 
ments of  the  law  merchant  formerly  control- 
ling and  to  those  of  the  negotiable  instrument 
law  now  in  force.  By  the  overwhelming 
weight  of  authority  under  the  law  merchant, 
a  holder  for  collection  of  negotiable  paper, 
which  had  been  dishonored,  performed  his  full 
duty  in  respect  to  notice  of  its  dishonor  by 
giving  such  notice  in  due  form  and  time  to 
the  party  from  whom  he  received  it  Where 
the  paper  before  presentment  had  passed 
through  several  hands,  whether  they  were 
those  of  mere  holders  for  collection  or  of 
parties  having  a  beneficial  interest  In  it,  the 
approved  rule  was  that  notice  given  by  each 
holder  In  turn  to  the  prior  one  from  whom 
it  was  received  was  notice  suflBclently  given 
to  fix  the  liability  of  all  indorsers  included 
in  the  chain  of  notice.  United  States  Bank 
V.  Goddard,  5  Mason,  366,  375,  Fed.  Cas.  No. 
917;  Eagle  Bank  v.  Hathaway,  5  Mete 
(Mass.)  212,  215;  Phlpps  v.  MlUbury  Bank, 
8  Mete.  (Mass.)  79,  84;  Farmers'  Bank  v. 
Vail,  21  N.  T.  485,  487;  Seaton  y.  Scovlll, 
18  Kan.  433,  438,  21  Am.  Rep.  212,  note  26 
Am.  Rep.  779;  Wood  v.  Callaghan,  61  Mich. 
402,  411,  28  N.  W.  162,  1  Am.  St  Rep.  597; 
Daniel  on  Negotiable  Instruments,  331.  Each 
holder  for  collection  was  regarded  as  a  real 
holder  and  his  relation  to  the  party  from 
whom  the  paper  was  received  such  that  the 
latter  was  entitled  to  be  treated  as  his  im- 
mediate prindpaL  Bartlett  v.  Isbell,  31 
Conn.  296,  299,  88  Am.  Dec.  146;  Phipps 
V.  Millbury  Bank,  8  Mete.  (Mass.)  79,  84; 
Freeman's  Bank  v.  Perkins,  18  Me.  292,  294; 
Howard  v.  Ives,  1  Hill  (N.  T.)  283,  264 ;  Ex- 
change Bank  v.  Sutton  Bank,  78  Md.  577,  587, 
28  Atl.  563,  23  L.  R.  A.  173. 

The  Negotiable  Instruments  Act  has  not 
changed  the  law  In  any  of  these  respects. 
The  defendant's  broad  contention  that  no- 
tice of  dishonor  to  be  effective  in  fixing  the 
liability  of  Indorsers  should  be  given  by  the 
holder  at  presentment  directly  to  the  benefi- 
cial owner  disregarding  all  intervening  hold- 
ers for  collection  only  Is  without  foundation 
in  the  act,  and  we  have  so  distinctly  held. 
Gleason  v.  Thayer,  87  Conn.  248,  250,  87  Atl. 
790,  Ann.  Cas.  1915B,  1069.  Such  a  require- 
ment, necessitating,  as  It  would.  Inquiries  as 
to  who  was  the  real  owner  and  what  his  ad- 
dress, and  Involving  embarrassment  and  com- 
plications in  accounting  as  between  those 
through  whose  hands  the  paper  passed  in  the 
process  of  collection,  would  be  fruitful  of 
such  annoyances,  difficulties,  and  hazards  of 


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APPEAL  OF  CX)RDANO 


85 


miscarriage  and  loss  as  to  make  It  an  unsat- 
isfactory substitute  for  the  simple,  orderly, 
and  effective  method  pursued  in  this  case  and 
by  us  heretofore  approved.  The  case  of  East 
Haddam  Bank  v.  Scovil,  12  Conn.  303,  fur- 
nishes a  good  example  of  easily  possible  con- 
sequences. The  law  under  consideration  in 
Gleason  v.  Thayer  was,  to  be  sure,  the  Ne- 
gotiable Instruments  Act  as  it  was  enacted 
in  Mew  York:  but  Its  provisions  of  present 
pertinence  were  identical  with  those  of  our 
own. 

The  defendant's  counsel  undertake  to  es- 
cape from  the  operation  of  the  decision  in 
that  case  by  an  attempt  to  distinguish  be- 
tween the  two  cases  npon  the  ground  that 
the  note  in  Gleason  v.  Thayer  presumably 
was  indorsed  by  the  Whaling  Bank  to  the  col- 
lection bank  In  New  Tork,  whereas  it  does  not 
appear  by  the  record  that  the  note  in  this 
case,  when  presented  for  payment,  bore  any 
bank  Indorsements.  It  would  doubtless  be 
quite  In  accordance  with  the  fact  to  assume 
that  It  did,  but  that  Is  not  a  matter  of  con- 
trolling Importance.  The  note,  as  indorsed 
npon  Its  delivery  to  the  Bridgeport  Bank, 
was  transferable  by  delivery,  and  the  finding 
is  that  It  was  sent  along  through  the  chain 
of  banks  for  collection.  Each  bank  received 
and  transmitted  it  to  its  agents  for  that  pur- 
pose, and  each  receiving  bank  became  Its 
bolder  for  collection  with  all  the  rtgbts, 
powers,  and  obligations  attached  to  such 
holders.  Bast  Haddam  Bank  v.  Scovil,  12 
Ck«in.  302,  311. 

[3]  Counsel  for  the  defendant  attach  great 
Importance  to  one  of  the  paragraphs  in  the 
finding,  and  build  much  of  their  argument 
upon  It  The  paragraph  is  to  the  effect  that 
the  Connecticut  Trust  &  Safe  Deposit  Com- 
pany has  never  been  the  plaintiff's  agent  for 
any  purpose  whatsoever.  That  finding  is 
one  of  law  and  not  of  fact  The  legal  char- 
acter of  the  relation  in  whi<di  tne  trust  com- 
pany stood  to  the  owners  of  the  note  is  to 
be  determined  as  a  legal  conclusion  upon  the 
t&cts.  The  finding,  to  be  sure,  does  not  state 
In  so  many  words  that  the  Hartford  Nation- 
al Bank  delivered  the  note  to  the  trust  com- 
pany for  collection  for  its  account,  but  there 
is  no  other  reasonable  inference  from"  the 
facts  found  than  that  it  did  so.  The  conduct 
of  the  parties  throughout  so  Indicates  quite 
unmistakably.  As  a  bolder  for  collection  is, 
as  a  matter  of  law,  the  agent  of  the  owner, 
the  finding  of  the  court  upon  this  matter 
mnst  be  disregarded  as  not  Justified  as  a 
matter  of  law  by  the  facts.  Gleason  v.  Thay- 
er, 87  Conn.  248,  250,  87  Atl.  700,  Ann.  Gas. 
1915B,  1060. 

[4]  The  action  of  the  plaintiff  In  giving 
notice  to  the  defendants  Baldwin  and  At- 
water,  following  its  receipt  in  due  course 
from  the  Bridgeport  Bank,  of  the  notice  of 
dishonor,  complied  In  all  respects  with  the 
requirements  of  the  law,  and  no  complaint  of 


Irregularity  in  that  respect  is  made  by  the  de- 
fendants. 

Certain  evidence  tending  to  prove  a  bank- 
ing custom  In  the  matter  of  giving  notices  of 
dishonor  w&a  received  against  objection  that 
it  was  not  permissible  to  show  conformity  to 
a  custom  at  variance  with  the  provisions  of 
statute.  The  court  has  found  no  such  cus- 
tom, nor  did  it  decide  the  case  upon  the 
strength  of  one.  Its  decision  was  based  up- 
on the  provisions  of  statute  and  compliance 
therewith. 

Two  or  three  objections  to  the  admission 
of  testimony,  offered  to  show  that  the  Hart 
ford  National  Bank  mailed  the  note,  certifi- 
cate of  protest  and  notices  to  the  State  Bank 
of  Albany  on  March  3,  relate  to  details  which, 
In  view  of  other  testimony,  were  unimportant 
The  court  was  amply  Justified  in  finding  that 
it  did  so  upon  proof  that  these  papers  were 
recdved  by  the  Bridgeport  Bank  by  first 
mail  on  the  5th  contained  in  a  letter  from 
the  State  Bank  of  Albany  addressed  to  It 

There  Is  no  error.  The  other  Judges  con- 
curred. 

(tl  Oonn.  718) 
Appeal  of  CORDANO. 
(Supreme  Court  of  Errors  of  Connecticut    June 
14,  1017.) 

1.  Intoxicattno   Liqtjobs  9=>103-^License8 

"""ASSIQNMETNTS 

Under  Pub.  Acts  1915,  c.  282,  prohibiting 
granting  ot  licenses  to  sell  intoxicating  liquor 
within  200  feet  of  a  church,  bnt  exempting 
transfer  applications  which  are  left  to  the  dis- 
cretion of  the  commissioners,  the  owner  of  a 
license,  whether  or  not  he  lias  qualified  to  sell 
under  it,  may  sell  and  assign  it  as  a  piece  of 
property  to  another  who  may  make  applica- 
tion to  sell  under  it  as  a  transferee. 

[Ed.  Note. — For  other  cases,  see  Intoxicating 
Uquors,  Cent  Dig.  $$  108-112.] 

2.  Intoxicatino  Liquobs  €=»103— Licenses 
— cuaractebistics. 

Property  in  a  license  to  sell  intoxicating  liq- 
uor is  recognized  by  law  to  the  fullest  extent  as 
property  having  a  recognized  pecuniary  value 
and  the  subject  of  sale,  attachment  levy,  or  re- 
plevy. 

[PM.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  i!  108-11Z] 

3.  Intoxicating  Liqdobs  $s>103  —  Licenses 

Pub.  Acts  i»15,  c.  282,  prohibits  the  want 
ing  of  licenses  for  places  located  within  20o  feet 
of  a  church,  but  exempts  transfers  from  the 
operation  of  the  statute.  Chaijter  36  provides 
that  a  license  sold  upon  execution  shall  for  it& 
unexpired  term  be  as  valid  in  the  hands  of  its 
purchasers  as  in  the  bands  of  the  original  li 
censee,  provided  that  before  the  purchaser  may 
sell  thereunder  he  shall  conyjly  with  all  the  re 
quirements  relative  to  the  procuring  of  an  origi 
nal  license.  A  license  was  sold  on  execution  and 
purchased  by  a  brewing  company  which  did  not 
qualify  as  a  licensee  thereunder,  but  transferred 
it  to  one  who  made  application.  Subsequent  to 
such  assignment  a  chnrch  was  erected  within 
200  feet  of  the  saioon.  Held  that  transfers  be- 
ing exempt  from  the  operation  of  the  statute, 
the  assignee  might  qualify  to  sell  under  the  li- 
cense. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  §$  108-112.] 


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101  ATLANTIC  BBPOBTEB 


(OODD. 


4.  Intoxicating  Liqitobb  «=3lO&— Licenses 
—Fraud. 

The  assignee  of  a  liqnor  license  sold  upon 
execution  and  purcliased  by  a  brewing  company 
which  failed  to  qualify  as  a  licensee  thereunder 
is  not  guilty  of  fraud  in  applying  for  permis- 
sion to  sell  under  the  license  as  being  in  no  posi- 
tion to  claim  such  rights  where  Pub.  Laws  1915, 
c.  282,  expressly  exempts  transfers  from  the  op- 
eration of  the  prohibition  against  licensing 
drinking  places  within  200  feet  of  a  church. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  §S  108-112.] 

5.  Intoxicatino  Liquobs  9=>103— Licenses 
— Fkacd. 

The  assignee  of  a  liquor  license  purchased 
by  a  brewery  on  execution  against  the  original 
holder  is  not  guilty  of  fraud  in  applying  for  per- 
mission to  sell  thereunder  because  of  the  fact 
that  the  assignor  had  not  in  fact  perfected  its 
assignment  to  the  applicant  at  the  time  he  ap- 
plied for  permission  to  sell;  the  facta  being 
known  to  the  county  commissioners. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  §S  lOS-112.] 

Appeal  from  Superior  Court,  litcbfleld 
County;   William  L.  Bennett,  Judge. 

Remonstrance  by  Nathaniel  Cordano  to  the 
action  of  the  County  Commissioners  in  grant- 
ing the  transfer  of  a  liquor  license.  Affirmed 
on  reservation  to  superior  court,  and  re- 
monstrant appeals.    Affirmed. 

In  1915  the  connty  commissioners  of  Litch- 
field county  granted  to  T.  J.  SulUran  a  li- 
cense to  sell  spirituous  and  intoxicating  liq- 
uors at  215  Main  street,  in  Winsted,  expiring 
October  31,  1916.  In  June,  1916,  this  license 
was  sold  on  execution  against  Sullivan.  The 
Yale  Brewing  Company  was  the  purchaser. 
That  company  did  not  qualify  as  a  licensee 
under  the  license,  but  sold  the  same  to  one 
Davis,  who  did  apply  on  July  31,  1916,  for  a 
transfer  of  the  license  to  him. 

Subsequent  to  November,  1915,  and  the 
date  of  Davis'  application,  a  church  had  been 
built  and  opened  for  services  within  200  feet 
of  the  saloon.  A  remonstrance  was  filed  to 
Davis'  application  upon  the  ground  of  the 
proximity  of  the  church  to  the  saloon.  Upon 
the  hearing  before  the  commissioners  no  wit- 
nesses were  produced  to  establish  the  ua- 
suitability  of  the  place,  but  the  facts,  as  to 
its  proximity  to  the  church,  were  agreed 
upon  as  the  facts  upon  which  the  commis- 
sioners' decision  was  to  be  rendered.  The 
claim  was  made  In  behalf  of  the  remon- 
strance that  the  application  was  to  be  regard- 
ed as  an  original  one,  and  that  therefore  the 
prohibition  of  the  statute  against  the  grant- 
ing of  a  license  for  a  place  within  200  feet 
from  a  church  edifice  was  applicable  to  the 
situation,  and  forbade  the  transfer  of  Sul- 
livan's license  to  Davis.  This  claim  was 
overruled,  and  the  application  granted.  From 
this  action  the  appellant,  who  was  one  of  the 
remonstrants,  appealed. 

Davis  is  a  suitable  person  to  receive  a  li- 
cense. 


Frank  B.  Mnnn,  of  Winsted,  for  remon- 
strating taxpayer.  Walter  Holcomb,  of  Tor- 
rington.  for  applicant  for  transfer.  John  T. 
Hubbard,  of  Litchfield,  for  county  commis- 
sioners. 

PRBNTICB,  C.  J.  (after  stating  the  facts 
as  above).  The  stipulation  of  counsel  npon 
which  this  reservation  was  made  limits  the 
questions,  whose  answers  should  determine 
the  Judgment  to  be  rendered  by  the  superior 
court  under  our  advice,  in  substance  to  two, 
as  follows:  (1)  Was  the  county  commission- 
ers' action  in  granting  Davis's  application  for 
a  transfer  to  him  of  Sullivan's  license  in  vio- 
lation of  the  provisions  of  statute  touching 
licenses  for  places  located  within  200  feet  of 
a  church?  and  (2)  Was  Davis's  application 
a  fraudulent  one? 

Any  question  that  might  have  been  made 
in  the  superior  court  that  the  county  commis- 
sioners erred  in  their  exercise  of  discretion 
in  granting  the  application  is  waived. 

[1]  It  appears  to  be  conceded  by  the  remon- 
strant appellant  that,  if  Davis  had  received  a 
transfer  from  Sullivan,  his  application  to  the 
commissioners  would  not  have  encountered 
the  church  prohibition.  Such  certainly  would 
have  been  the  casfs  since  chapter  282  of  the 
Public  Acts  of  1915,  which  embodies  that  pro- 
hibition, specially  excepts  from  its  operation 
transfer  applications,  and  leaves  the  decision 
in  their  case  to  the  discretion  of  the  commis- 
sioners, in  view  of  the  circumstances  of  each 
particular  case. 

Davis,  however,  did  not  hold  an  assignment 
to  himself  from  Sullivan,  the  licensee.  His 
right  to  the  license  came  to  him  from  the 
Yale  Brewing  Company,  who  had  purchased 
It  upon  an  execution  sale,  and  had  never  qual- 
ified as  a  licensee  under  it.  The  remon- 
strant's contention  is  that  under  such  con- 
ditions he  did  not  occupy  the  position  of 
one  who  .was  entitled  to  a  transfer  of  the 
license  within  the  meaning  of  our  license 
statutes,  and  therefore  could  not  avail  him- 
self of  the  exceptions  provided  in  chapter  282 
of  the  Public  Acts  of  1915  in  cases  of  trans- 
fer. His  claim  is  that  the  exception  made  in 
that  act  in  favor  of  transfers  of  licenses  re- 
fers'cmly  to  such  as  attend  the  passing  of 
the  ownership  of  the  license  directly  from 
the  licensee  to  the  applicant  for  a  transfer 
and  without  the  intervention  of  any  other 
person's  ownership  of  the  license,  and  that 
all  other  persons  not  so  deriving  title  to  the 
license  appear  before  the  county  commis- 
sioners as  original  applicants  and  subject  to 
the  regulations  governing  such  applicants. 
In  support  of  this  position  he  points  to  chap- 
ter 148  of  the  Public  Acts  of  1916,  where  it 
is  provided  that  any  licensee,  or  In  case  of 
his  death  his  administrator  or  executor,  may, 
with  the  consent  of  the  county  commission- 
ers, transfer  his  license.  This,  he  says.  Is 
Inclusive  of  all  transfers  which  the  law  rec- 


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APPEAL  OF  CORDANO 


87 


ognizes  as  sncb,  and  eonfincB  the  power  to 
make  assignments,  which  by  the  approval  of 
the  county  commlsslonera  may  become  trans- 
fers, to  licensees. 

This  coDStmction  of  our  statute  la  exceed- 
ingly narrow  and  technical,  and  does  not  com- 
port with  sound  reason.  It  reaches  not  only 
thoSe  who,  as  here,  are  iHircfaasers  of  a  license 
at  an  execution  sale,  but  also  those  .who  bold 
voluntary  assignments  from  the  owner  of  a 
license,  provided  they  have  not  put  them- 
selves in  a  position  to  engage  In  the  liquor 
business  under  its  authority.  We  search  in 
vain  for  a  practical  reason  for  the  distinction 
thus  made  between  licensed  and  nonlicensed 
owners  of  a  license  in  the  matter  of  their 
competency  to  make  an  assifniment  of  the 
license  which  may  be  perfected  as  a  transfer 
by  the  action  of  the  county  commissioners. 
Espedally  hard  is  it  to  find  a  reasonable  basis 
for  such  dlstinctioD,  since  ownership  by  pur- 
chase and  assignment  does  not  carry  with  it 
the  right  to  utilize  the  license  in  the  conduct 
of  the  business.  In  every  case  one  who  ac- 
quires an  outstanding  license  is  required  to 
obtain  the  approval  of  the  county  commis- 
sioners before  be  can  sell  under  it.  As  the 
license  authorities  have  reserved  to  them  the 
l)ower  to  dictate  as  to  .who  among  assignees 
may  exercise  the  francliise  by  becoming 
sellers,  and  are  called  upon  in  every  case  to 
exercise  that  power,  it  is  difficult  to  discover 
nvbat  abuse  can  possibly  arise  from  making 
assignees  of  nonlicensed  persons  transferees 
of  the  license  which  is  not  to  be  anticipated  in 
the  case  of  assignees  of  licensed  persons.  The 
public  interest  is  not  concerned  with  the  char- 
acter and  suitability  for  the  conduct  of  the 
lliiuor  business  of  a  seller  of  a  license  who 
'does  not  prc^Ktae  to  operate  under  it.  What 
is  Its  vital  concern  is  the  character  and  suita- 
bility of  the  purchaser  .who  applies  for  leave 
to  sell  under  the  license. 

[2]  Our  law  recognizes  to  the  fullest  extent 
the  quality  of  property  in  a  license.  It  Is 
property  having  a  recognized  pecuniary  value 
and  the  subject  of  sale,  attachment,  levy,  or 
roplev}'.  Sayers'  Appeal,  89  Conn.  315,  317, 
94  AtL  358 ;  Qulnnlpiac  Brewing  Co.  v.  Hack- 
barth,  74  Conn.  392,  ."^5,  50  AU.  1023.  As 
Vtopeity  and  the  subject  of  sale,  the  owner 
may  prima  facie  at  least  sell  It  and  place  the 
purchaser  in  his  position  as  owner.  What  is 
there  to  impose  restraint  upon  this  power  of 
substitution  of  owners  so  that  only  one  class 
of  them,  to  wit,  those  who  have  qualified  as 
licensees  under  the  license,  are  free  to  make 
the  substitution  as  fully  and  completely  as 
the  law  in  other  resi)ect9  permits  It  to  be 
made?  The  statutes  expressly  impose  none, 
and  none  is  to  be  found  by  way  of  implication 
unlesi4  the  remonstrant's  construction  of  chap- 
ter 148  of  the  Public  Acta  of  1915  Is  to  be 
accepted  as  correct  As  we  already  have  had 
occasion  to  ol>serve,  practical  reasons  in  sup- 
port of  that  construction  are  not  apparent 
On  the  other  hand,  it  Is  easy  to  discover  rea- 
sons and  cogent  ones  In  opposition  to  it.    We 


are  of  the  opinion  that  the  owner  of  the  U- 
o«ise,  whether  or  not  he  has  qaolifled  to 
sell  under  it,  may  sell  and  assign  it  as  a 
piece  of  property  to  another  who  may  make 
application  to  sell  under  it  as  a  transferee. 

[3]  But  the  remonstrant  is  not  driven  to 
rely  upon  the  broad  proposition  Just  dis- 
cussed. He  advances  a  more  narrow  one 
based  upon  that  portion  of  chapter  36  of  the 
Public  Acts  of  1915,  which  provides  that  a 
license  sold  upon  execution  shall  for  its 
unexpired  term  be  as  valid  in  the  hands  of 
Its  purchaser  as  in  the  hands  of  the  original 
licensee,  "provided  before  such  purchaser 
may  avail  himself  of  the  benefit  of  such 
license,  he  shall  comply  with  all  the  require- 
ments of  law  relative  to  the  procuring  of  an 
original  license."  His  claim  is  that  here, 
by  Implication  at  least,  is  a  direction  that 
an  execution  purchaser,  and  of  a  necessity 
therefore  his  assignee,  must  if  he  would 
avail  himself  of  any  beneficial  use  of  the 
purchnsed  license,  appear  before  the  county 
commissioners  in  all  respects  as  an  original 
applicant,  and  be  governed  by  all  the  statu- 
utory  regulations  concerning  the  granting  of 
licenses  to  such  applicants.  As  one  of  these 
regulations  is  the  prohibition  of  the  issuance 
of  a  license  to  sell  at  a  place  located  within 
200  feet  of  a  church  edifice,  he  says  that 
it  follows  that  an  execution  purchaser  appli- 
cant comes  within  the  operation  of  that  pro- 
hibition. 

He  is,  of  course,  correct  in  his  statement 
that  an  assignee  of  an  execution  purchaser 
can  stand  in  no  better  position  as  an  ap- 
plicant for  leave  to  sell  than  would  his  as- 
siamor  if  he  were  making  such  application. 
If  It  be  so  that  the  law  provides  a  special 
rule  for  the  case  of  an  execution  purchaser 
so  that  he  is  made  to  occupy  a  different  and 
less  advantageous  position  when  he  seeks  to 
utilize  his  purchase  by  qualifying  as  a  seller 
from  that  occupied  by  voluntary  assignees  of 
licensed  persons,  then,  without  doubt,  every 
owner  under  him  of  the  license  stands  in  no 
better  position.  The  controlling  question 
therefore  is:  Does  our  law  make  execution 
purchasers  a  class  apart  from  all  other  pur- 
chasers, and  subject  them,  when  they  seek  to 
avail  themselves  of  their  purchases,  to  dif- 
ferent and  more  stringent  regulations  than 
those  to  which  all  other  purchasers  are  sub- 
jected? 

Tn  answering  this  question  the  particular 
provision  of  statute  which  alone  Is  relied  up- 
on as  accomplishing  that  result  should  be 
read  in  connection  with  the  other  provisions 
touching  the  same  general  subject  and  such 
construction,  consistent  with  the  language 
used,  given  to  it  as  will  make  a  harmonious 
and  consistent  whole.  In  arriving  at  that 
construction,  the  evil  sought  to  be  avoided 
should  be  borne  in  mind. 

The  evil  which  our  law  governing  transfers 
of  license  privileges  seeks  to  avoid  manifest- 
ly is  the  sale  of  spirituous  and  Intoxicating 


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101  ATLANTIC  REPORTER 


(Conn. 


liquors  by  persons  whose  fitness  to  do  so  bas 
not  been  passed  upon  and  approved  by  the 
licensing  authorities.  Our  policy  in  that 
regard  Is  clearly  Indicated  by  our  statutes. 
We  Insist  that  every  would-be  seller  shall 
present  bis  application  for  leave  to  sell  to  the 
county  commissioners,  and  that  they,  after  a 
formal  hearing  upon  a  prescribed  notice,  pass 
upon  his  fitness  to  exercise  the  desired  privi- 
lege. This  requirement  extends  to  every 
one  whether  he  be  an  original  applicant  or 
one  desiring  to  sell  as  a  substitute  licensee. 

When  the  applicant  seeks  to  exercise  the 
right  which  was  originally  given  to  another, 
a  transfer  of  the  license  becomes  necessary. 
That  transfer  is  not  accomplished  by  a  pur- 
chase and  assignment  of  the  lic^ise.  It  is 
accomplished  when,  and  only  when,  the  coun- 
ty commissioners  have  signified  their  con- 
sent to  the  substitution  of  licensee.  Chapter 
148,  P.  A.  1915.  Our  statutes  make  it 
clear  that  the  word  "transfer,"  as  used  in 
them,  refers  not  to  the  transaction  as  be- 
tween individuals  whereby  the  property  in- 
terest passes,  but  to  the  transfer  of  the  right 
to  sell  which  follows  the  county  commis- 
sioners' consent  It  matters  not  whether  the 
license,  as  representing  an  inchoate  right  to 
sell,  was  obtained  by  a  third  party  through 
a  voluntary  assignment  or  upon  execution 
sale.  There  is  no  transfer  within  the  mean- 
ing of  our  statutes  until  the  county  commis- 
sioners have  given  their  consent  to  the  sut>- 
stitutlon  of  parties,  and  there  is  in  either 
case  one  when  that  consent  is  given. 

Bearing  in  mind  that  fact  and  also  that 
chapter  282,  the  latest  in  the  order  of  enact- 
ment of  the  license  statutes,  in  unrestricted 
language  exempts  transfers  from  the  opera- 
tion of  the  prohibition  against  the  grant 
of  licenses  for  a  place  located  within  200 
feet  of  a  church  edttice,  and  also  that  no 
reasons  are  apparent  for  the  making  of  a 
distinction  between  purchasers  of  different 
classes,  it  is  reasonably  manifest  that  the 
two  statutory  provisions  should  be  read  the 
one  as  prescribing  the  applicant's  conrse  of 
action,  and  the  other  the  county  commission- 
ers'  duty  in  passing  upon  his  application 
when  duly  presented.  By  force  of  chapter 
.%  the  applicant  must  proceed  in  the  matter 
of  application  in  all  respects  as  an  original 
applicant  Is  required  to  do.  By  virtue  of 
chapter  282  the  connty  commissioners,  in 
passing  upon  the  application  when  thus  pre- 
sented, are  to  be  governed  by  the  regulations 
touching  transfers. 

[4,  i]  The  remonstrant's  claim  that  the 
plaintiff's  application  was  fraudulent  Is  based 
largely  upon  his  assumption  of  an  alleged 
false  position  In  asserting  that  he  desired  a 
transfer  of  Sullivan's  license  and  in  asking 
for  such  transfer  when  he  was  in  no  position 
to  claim  it.  What  we  have  said  upon  that 
subject  disposes  of  that  feature  of  the  charge 
of  fraud.    The  charge  is  also  based  in  parti 


upon  the  fact  that  at  the  time  the  application 
was  made  the  Yale  Brewing  Company  had 
not  in  fact  perfected  its  assignment  to  the 
applicant,  although  it  was  perfected  prior 
to  the  hearing  before  the  commissioners.  No- 
where In  the  application  or  in  the  applicant's 
affidavit  accompanying  It  Is  it  said  that  the 
assignment  had  been  made.  The  applica- 
tion was  for  a  transfer  of  Sullivan's  license 
to  Davis,  and  nothing  more.  We  discover  no 
mlsrepresentatian  of  fact  by  Davis,  nor  pos- 
sibility of  misunderstanding  or  misconception 
on  the  part  of  the  commissioners  as  to  any 
material  matter  involved  In  their  decision. 
It  does  not  appear  but  that  the  sltnation 
was  fully  understood  by  all,  and  it  is  of  no 
practical  importance  whether  or  not  the  as- 
signment to  Davis  was  in  form  executed  at 
the  time  of  the  application's  date. 

The  superior  court  is  advised  to  affirm 
the  order  of  the  county  commissioners. 

No  costs  in  this  court  will  be  taxed  in  favor 
of  either  of  the  parties.  The  other  Judges 
concurred. 

(U  Conn.  692} 
TURNER  T.  OONNECTICUT  CO. 

(Supreme  Court  of  Errors  of  Connecticut 
June  14,  1917.) 

1.  Appeal  anu  Ebror  <8=>704(2)  —  Correc- 
tion or  FiNniNG  —  Memokandhm  of  Deci- 
sion. 

The  memorandum  of  decision,  not  being 
made  a  part  of  the  finding,  cannot  be  corrected 
on  appetQ. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i|  2900,  2939,  2941.] 

2.  Appeal  and  Error  <S=>536  —  Record  — 
Agreed  Statement  of  Pacts. 

An  agreed  statement  of  facts,  not  being  cer- 
tified to  by  the  trial  court  and  made  part  of  the 
record,  has  no  place  therein. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  Sg  2402,  2403.] 

3.  Appeal  and  Error  «=>656(3)— Correction 
OF  Finding. 

Appellant  cannot  have  correction  on  appoel 
under  the  method  of  Gen.  St  1902,  I  797.  of  a 
finding  of  the  trial  court  without  having  the 
evidence  certified  and  made  part  of  the  record. 

4.  Carriers  $=>12(1)  —  Power  to  Rjeoitlatx 
Charges. 

Under  Public  Service  Corporations  Act  (Pub. 
Acts  1911.  c.  128)  S  23,  it  is  only  after  hearing 
on  complaint  and  finding  that  the  rates  made  by 
a  Public  Service  Corporation  are  unreasonable 
that  the  Public  Service  Commission  may  disturb 
them,  and  determine  and  prescribe  just  and  rea- 
sonable maximum  rates  and  charges. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent  Dig.  §§  7,  16-20.] 

5.  Carriers  «=>18(2) —Rates— Appeal  from 
Order— Review  bt  Court. 

Under  Public  Service  Corporations  Act  (Pub. 
Acts  lOll,  c.  128)  f  29,  providing  for  appeal 
from  the  Commission  to  the  superior  court,  and 
section  31,  as  amended  by  Pub.  Acts  1913,  c. 
225,  providing  tliat  said  court  shall  hear  such 
apposl  and  examine  the  question  of  legality  o* 
the  order  and  the  propriety  and  expediency 
thereof  in  so  far  as  it  may  properly  have  cog- 
nizance of  the  subject  the  court  may  determine 
whether  the  Commission's  order  fixing  maximum 


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COIUL) 


TURNER  T.  CONNECTIOUT  CO. 


rates,  or  declining  to  dianse  the  rates  fixed  by 
the  company,  is  valid,  by  ascertaining  whether 
the  rate  so  fixed  or  left  unchanged  was  reason- 
able;   this  being  a  judicial  question. 

[Ekl.  Note.— For  other  cases,  see  Carriers, 
Cent.  EMg.  M  IB,  16-18,  20,  24.] 

6.  PcBUC  Service  Coumissions  «=»7— "Eea- 
BOXABLE  Rate." 

The  reasonableness  of  a  rate  fixed  by  or  for 
a  public  service  corporation  is  to  be  determined 
after  viewing  its  effect  on  the  public  as  well  as 
the  company;  the  rate  being  unreasonable  If  so 
low  as  to  be  destructive  of  tho  company's  prop- 
erty or  if  so  high,  either  intrinsically  or  because 
discriminatory,  as  to  be  an  unjust  exaction  from 
the  public. 

[Ed.  Note.— For  other  definiti<»s,  see  Words 
and  Phrases,  First  and  Second  Series,  Reason- 
able Rate.] 

7.  Cabbiebs  «=»13(2)  —  Bates  —  Discbucira- 
noN. 

In  determining  whether  the  rate  of  a  carrier 
is  one  locality  is,  in  view  of  its  rates  in  other 
localities,  discriminatory,  depending  on  tho  lo- 
calities being  similarly  situated  and  subject  to 
like  conditions,  the  element  of  distance  is  not 
necessarily   a  controlling  factor. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent  Dig.  il  22,  21] 

&  Appeal  and  Esbob  «=»1010(1)— Rbvibw— 

Questions  of  Fact. 
The  facts  found  not  supporting,  much  less 
requiring,  the  conclusion  that  a  carrier's  rate 
was  excessive  or  discriminatory,  the  Supreme 
Court  cannot  disturb  the  trial  court's  adjudica- 
tion sustaining  the  Public  Sorvice  Commission's 
determination  of  reasonableness  of  the  rate, 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  j|§  3979-3981,  4024.] 

Appeal  from  Superior  Court,  Fairfield 
County;    Edwin  B.  Qager,  Judge. 

Petttion  by  John  C.  Turner  and  others 
against  the  Connecticut  Company.  From 
Judgment  of  court,  on  appeal  from  Public 
Utilities  Commission,  petitioner  Turner  ap- 
peals.   Affirmed. 

Petition  for  a  reduction  In  the  rates  of 
fare  charged  by  the  respondent  between  cer- 
tain points  on  one  of  its  lines  running  from 
Stamford  to  Norwalk,  which  rates  were  al- 
leged to  be  unreasonable,  brought  to  the  Pub- 
lic Utilities  Commission,  who  heard  and  de- 
nied the  petition;  and  thence  by  appeal  to 
the  sui)erior  court ;  facts  found  and  judgment 
rendered  eonflrmlng  the  action  of  the  Public 
Utilities  Commission,  from  which  the  peti- 
tioner Turner  appealed. 

Tlie  Connecticut  Company  operates  seven 
electric  street  car  lines  on  its  Stamford 
division  which  converge  at  Atlantic  square 
In  Stamford.  Two  of  these  lines  run  out- 
side of  Stamford,  one  to  Sound  Beach  and  one 
to  Noroton,  and  five  terminate  at  suburban 
points  in  Stamford.  Passengers  riding  from 
Atlantic  square  to  Noroton  bridge,  a  distance 
of  2.33  miles,  pay  one  flve-cent  fare,  and  an- 
other fare  from  that  point  to  Noroton  village 
and  points  beyond.  Passengers  riding  from 
Atlantic  square  to  Sound  Beach  and  the  five 
suburban  lines  pay  one  flve-cent  fare,  and 
on  three  of  these  lines  ride  less  than  the 
distance  from  the  square  to  Noroton  bridge, 


while  on  three  they  ride  a  greater  distance, 
viz.  to  Springdale,  3.5  miles ;  to  Sound  Beach, 
3.22  miles,  and  to  Shlppan  Point,  2.79  miles. 
The  New  Xork  and  Stamford  Railway  Com- 
pany operates  an  electric  street  car  line 
which  converges  at  said  Atlantic  square. 
Passengers  riding  by  this  line  from  the  square 
to  Cos  Cob,  another  suburb  of  Stamford,  pay 
one  five-oent  fare  and  ride  3.8  miles.  Passen- 
gers on  all  of  these  lines  may  transfer  at  the 
square  from  one  of  these  lines  to  any  of  the 
others.  The  village  of  Noroton  was  original- 
ly a  part  of  Stamford,  and  in  all  of  Its  as- 
sociations is  closely  connected  with  Stam- 
ford. In  point  of  healthfulness,  natural 
beauty,  and  the  character  of  its  population 
it  Is  a  desirable  place  to  live,  and  is  In  no 
particular  inferior  to  Springdale  or  Cos  Cob. 
Since  the  electric  street  car  line  was  built 
through  Noroton  two  houses  have  been  built 
between  the  Noroton  bridge  turnout  and  St. 
Luke's  Cliurch,  and  14  houses  have  been  built 
west  of  and  within  one  quarter  of  a  mile  of 
the  Noroton  bridge.  Since  the  electric  street 
car  line  was  built  to  Springdale  and  the  flve- 
cent  fare  established  between  Springdale 
and  Stamford,  170  houses  have  been  built 
in  Springdale,  and  Its  population  has  in- 
creased rapidly  and  largely. 

On  February  24,  1915,  the  appellant,  to- 
gether with  nine  other  residents  of  Darlen, 
petitioned  the  Public  UtlllUes  Commisslwi— 
"to  order  a  fare  extension  or  'lap  over'  so  call- 
ed, operative  in  both  directions  between  the  said 
Noroton  river  bridge  and  said  St.  Luke's  Church, 
or  to  make  such  other  adjustment  of  fares  as 
may  be  necessary  or  advisable,  so  as  to  give  a 
single  five-cent  rate  or  charge  for  each  passen- 
ger between  Atlantic  square  and  St.  Luke's 
Church." 

The  term  'lap  over"  is  one  used  in  refer- 
ence to  electric  street  car  lines  to  denote  the 
distance  which  a  passenger  Is  allowed  to 
ride  beyond  a  given  fare  limit  before  he  Is 
required  to  pay  another  fare,  or  upon  taking 
a  car  going  in  the  opposite  direction,  the 
distance  which  he  may  ride  before  readiing 
a  given  fare  limit  at  which  he  wiU  be  re- 
quired to  pay  a  fare. 

The  Stamford  division  is  one  of  the  poorest 
earning  divisions  in  the  company's  system, 
and  the  Stamford  portion  of  the  Stamford- 
Norwalk  line  of  the  Connecticut  Company's 
system  Is  one  of  the  best  earning  lines  in 
this  division.  The  establishment  of  the  pro- 
posed lap  over  to  St  Luke's  Church  would 
extend  the  first  flve-cent  limit  out  of  Stam- 
ford, and  thereby  to  some  extent  decrease  the 
net  earnings  of  the  Stamford  division. 

In  December,  1914,  by  agreement  the  towns 
of  Stamford  and  Darlen  paid  $2,500  on  ac^ 
count  of  the  cost  of  widening  the  said  bridge 
over  Noroton  river  and  the  Connecticut  Com- 
pany the  balance  of  said  cost,  $3,162,  and  in 
addition  $33,000  in  making  phydcal  connec- 
tion between  Its  lines  and  Noroton  river  and 
providing  other  facilities  for  through  traffic. 


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101  ATLANTIC  REPORTER 


(ConD. 


The  Connecticut  Company  thereafter  laid  Its 
tracks  across  the  bridge  aBd  thus  connected 
Its  tracks,  and  this  was  the  last  step  to 
'H>niplete  a  continuous  line  of  electric  street 
tracks  between  New  York  and  Boston. 

The  Commission  found  and  held  that  the 
facts  before  them  did  not  establish  the  un- 
reasonableness of  the  present  rate,  and  there- 
fore denied  the  petition.  The  superior  court 
adjudged  that  the  action  of  the  Commission 
was  reasonable  and  proper,  and  confirmed 
It  and  dismissed  the  appeal. 

William  T.  Andrews  and  Peter  Dondllnger, 
both  of  Stamford,  for  appellant.  Seth  W. 
Baldwin,  of  New  Haven,  for  appellee. 

WHEELER,  J.  (after  stating  the  facts  as 
above).  [1-3]  The  first  seven  assignments  of 
error  are  assumed  by  the  appellant  to  relate 
to  the  correction  of  the  finding.  In  fact  they 
relate  to  matters  which  are  parts  of  the 
memorandum  of  decision.  T^at  Is  not  made 
a  part  of  the  finding,  so  that  Its  correction 
cannot  be  had.  The  cause  is  to  be  decided 
upon  the  facts  found,  not  upon  those  contain, 
ed  in  the  memorandum  of  decision.  Fur- 
ther, the  agreed  statements  of  facts  which 
the  appellant  assumes  to  be  a  part  of  the 
record  had  no  place  In  the  record.  They 
were  not  certified  to  by  the  trial  court  and 
made  a  part  of  the  record.  So  far  as  we 
know,  they  were  not  necessarily  before  the 
trial  court,  and  certainly  were  not  necessari- 
ly the  only  facts  in  evidence.  Counsel  for 
the  appellee  say  the  appellant  petitioner  in- 
troduced oral  testimony.  Whether  this  is 
accurate  or  not,  the  appellant  cannot  secure 
the  correction  of  the  finding  under  the 
method  of  General  Statutes,  §  797,  without 
having  the  evidence  certified  and  made  a  part 
of  the  record.  The  assignments  of  error, 
aside  from  those  relating  to  the  correction 
of  the  finding,  are  varying  ways  of  stating 
the  single  point  that  the  trial  court  erred  in 
holding  that  the  action  of  the  Commission 
was  reasonable  in  finding  and  deciding  that 
the  present  rates  complained  of  were  not 
unreasonable.  The  act  regulating  Public 
Service  Corporations  (Public  Acts  of  1911, 
c.  128)  in  section  23  provides  that: 

"Any  ten  patrons  of  any  such  company  •  •  • 
may  bring  a  written  petition  to  the  Commission 
alleging  that  tlie  rates  or  diargcs  made  by  such 
company     ♦     ♦     •    are  unreasonable." 

Thereupon,  after  hearing  had,  the  Com- 
mission, if  it  finds  such  rates  and  charges 
to  be  unreasonable,  may  determine  and  pre- 
scribe Just  and  reasonable  maximum  rates 
and  charges  to  be  thereafter  made  by  such 
company,  and  said  company  shall  not  there- 
after demand  any  rate  or  charge  in  excess 
of  the  maximum  rate  or  charge  so  prescribed. 

The  limitation  of  rates  to  what  are  rea- 
sonable U  the  enactment  in  statutory  form 
of  an  ancient  rule  of  the  common  law.  Rari- 
tan  River  R.  Co.  v.  Traction  Co.,  70  N.  J. 
Law  (41  Vroom)  732,  743,  58  Atl.  332;  Rea- 
gan v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S. 


362,  397,  14  Sup.  Ct  1047,  38  L.  Ed.  1014; 
LoulsvUle  &  N.  R.  Co.  v.  Garrett,  231  U.  8. 
298,  311,  34  Sup.  Ct.  48,  68  L.  Ed.  229. 

"To  limit  the  rate  of  diarge  for  services  ren- 
dered in  a  public  employment,  or  for  the  use  of 
property  in  which  the  public  has  an  interest,  is 
only  changinj;  a  regulation  which  existed  be- 
fore. It  establishes  no  new  principle  in  the  law. 
but  only  gives  a  new  effect  to  an  old  one." 
Munn  V.  IlUnois,  94  U.  S.  113,  24  L.  Ed.  77. 

[4]  The  remedy  for  the  enforcement  of 
reasonable  rates  provided  by  our  act  was 
new  in  this  Jurisdiction.  So  long  as  the 
company  establishes  reasonable  rates,  these 
cannot  be  lowered  by  commission  or  court. 
When  it  fails  in  this  duty  the  PubUc  CtUl- 
ties  Commission  Is  authorized  to  prescribe 
Just  and  reasonable  maximum  rates.  And  its 
authority,  under  this  act,  may  be  Invoked 
whenever  the  rates  as  fixed  are  either  so 
high  or  so  low  as  to  be  unreasonable.  The 
Commission  is  an  administrative  one,  with 
the  delegated  legislative  function  of  fixing 
railway  rates. 

[5]  A  court  may  not  be  required  to  fix  or 
regulate  a  tariff  of  rates  for  services  to  be 
rendered  by  a  public  service  corporation, 
since  this  Is  a  legislative  function  and  may 
be  conferred  by  law  upon  a  specially  desig- 
nated ministerial  body.  Reagan  v.  Farmers' 
Loan  &  Trust  Co.,  154  U.  S.  362,  397,  14 
Sup.  Ct  1047,  88  L.  Ed.  1014;  Interstate 
Commerce  Commission  v.  Railway  Co.,  167 
U.  S.  479,  499,  17  Sup.  Ct,  896,  42  L.  Ed.  243; 
Janvrln,  Petitioner,  174  Mass.  514,  55  N.  E. 
381,  47  L.  R.  A.  319;  Raritan  River  R.  Co.  v. 
Traction  Co.,  70  N.  J.  Law  (41  Vroom)  732,  68 
Atl.  332. 

Section  2d  of  the  act  provides  for  an  ap- 
peal to  the  superior  court  from  any  order  of 
the  Commission.  And  section  31,  as  amend- 
ed by  chapter  226  of  the  Public  Acts  of  1913, 
provides  that: 

"Said  court  shall  hoar  such  appeal  and  exam- 
ine the  question  of  the  legality  of  the  order 
•  •  •  and  the  propriety  and  expediency  of 
such  order  •  •  •  in  so  far  as  said  court  may 
properly  have  cognizance  of  such  subject" 

Under  this  provision  the  court  may  hear 
and  determine  whether  the  order  of  the  Com- 
mission fixing  maximum  rates,  or  its  order 
declining  to  change  the  rate  flexed  by  the 
company.  Is-  valid  or  not,  by  ascertaining 
whether  the  rate  so  fixed  or  the  rate  un- 
changed was  reasonable  or  not.  Such  a 
question  is  a  Judicial  one. 

It  has  been  so  held  in  construing  a  like  or 
similar  provision  in  state  and  federal  stat- 
ute. Janvrln,  Petitioner,  174  Mass.  514,  65 
N,  B.  381,  47  L.  R.  A.  319;  Raritan  River  R. 
Co.  V.  Traction  Co.,  70  N.  J.  Law  (41  Vroom) 
732,  743,  58  AU.  332;  Chicago,  M.  &  St  P. 
Co.  V.  Minnesota,  134  D.  S.  418,  458,  10  Sup. 
Ct.  462,  702,  33  L.  Ed.  970;  Smyth  v.  Ames, 
169  U.  S.  466,  18  Sup.  Ct  418,  42  L.  Ed.  810 : 
Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154 
U.  S.  362.  397,  14  Sup.  Ct  1047.  38  L.  Ed. 
1014;  Prentls  v.  Atlantic  Coast  Line  Co.,  211 
D.  S.  210,  29  Sup.  Ct  67,  63  L.  Ed.  150. 

[6]  The  reasonableness  of  the  rate  is  to 


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TURNEB  V.  CONNECTICUT  CO. 


91 


lie  determined  after  viewing  its  effect  npon 
the  public  as  well  as  upon  the  company.  The 
rate  may,  on  the  one  hand,  be  so  low  as.  to 
be  destructive  of  the  property  of  the  com- 
pany, or  it  may  be  so  high  as  to  be  an  un- 
just exaction  from  the  public;  either  In- 
trinsically so,  or  because  it  Is  discrimina- 
tory. In  either  instance  the  rate  Is  unrea- 
sonable. What  the  court  does  im  passing 
upon  this  question  is  to  decide  after  hearing 
had  in  the  course  of  a  Judicial  proceeding, 
whether  the  rate  complained  of  Is  so  high  or 
-so  low  as  to  be  unreasonable.  No  satisfao- 
tory  definition  of  reasonable,  as  applied  to 
rates,  applicable  to  each  case,  can  be  made. 
Each  must  be  decided  upon  its  own  facts  and 
upon  a  consideration  of  many  varying  ele- 
ments. A  passenger  rate  upon  a  railway,  to 
be  reasonable,  must  be  Just  to  the  public  as 
well  as  to  the  railway.  It  should  be  large 
enough  to  provide  for  the  passenger  reason- 
able service  and  for  the  railway  a  reasonable 
return.  The  rate  may  be  made  high  enough 
to  cover  the  cost  of  service,  the  carrying 
charges,  a  reasonable  sum  for  depreciation, 
and  a  fair  return  upon  the  investment.  Less 
than  this  will  not  ^ve  the  railway  a  reason- 
able rate.  The  action  of  a  utilities  com- 
mission which  reduces  a  rate  below  this 
point  unduly  deprives  the  owners  of  their 
property  without  Just  compei^satlon.  If  a 
rate  exceeds  this  point  to  an  appreciable  de- 
gree and  the  Commission,  upon  proper  ap- 
plication, declines  to  reduce  It,  the  court 
would,  in  the  absence  of  other  controlling 
facts,  reduce  it  to  a  reasonable  point 

[7]  If  a  rate  in  one  locality  Is  largely  In 
«>xcess  of  rates  in  other  localities  similarly 
situated  and  subject  to  like  conditions,  it  is 
an  onreasbnnble  rate,  for  this  would  Instance 
a  discrimination  against  one  locality  In  favor 
•of  another,  or  other  localities.  A  discrimi- 
nating rate  of  this  character  would  be  an  mi- 
reasonable  rate,  since  as  a  general  principle 
the  service  of  a  public  utility  should  be  equal 
to  all  patrons  similarly  circumstanced.  Bald- 
win, Americaiu  Railroad  Iiaw,  c.  25,  (6; 
EUiott  on  Kallroads,  §  1167 ;  Union  Padflc  Ry. 
Ck>.  V.  Goodridge,  149  U.  S.  680,  690.  13  Sup. 
Ct.  970,  37  L.  Ed.  896;  Western  Union  Tele- 
graph Co.  V.  Call  Pub.  Co.,  181  U.  S.  92,  99, 
21  Sup.  Ct.  661.  45  U  Ed.  765 ;  Portland  Ry., 
L.  &  P.  C.  Y.  Oregon  R.  R.  Commls^om,  229 
U.  S.  397,  411,  33  Sup.  Ct  820,  57  L.  Ed.  1248. 

When  we  examine  the  finding  before  us  we 
see  that  there  are  no  facts  found  from  which 
it  could  have,  been  inferred  as  matter  of  fact 
by  the  trial  court,  or  must  be  Inferred  by 
us  as  matter  of  law,  that  the  ten-ceut  rate 
between  Atlantic  Square  and  Noroton  Is  ex- 
orbitant or  excessive.  We  have  not  before  us 
the  cost  of  service  between  these  points,  nor 
the  fair  share  of  the  carrying  charges  and  of 
depreciation,  or  what  would  be  a  fair  re- 
turn, for  this  distance.  We  are  not  given  ei- 
ther the  gross  or  net  earnings,  or  the  per  car 
hour,  or  per  car  mile  earnings.  Nor  are  the 
conditions  found  to  be  similar.    All  that  the 


finding  tells  us  la  that  the  earnings  are  less 
on  this  system  than  on  the  defendant's  other 
systems.  This  unrelated  fact  by  Itself,  does 
not  help  in  ascertaining  what;  if  any,  profits 
there  are  from  this  rate,  and  whether  they 
are  excessive  or  exorbitant  The  petitioner 
does  not  stand  upon  the  intrinsic  unreason- 
ableness of  this  rate,  but  upon  the  claim 
that  this  rate  is  a  discriminatory  one,  and 
results  and  has  resulted  to  the  serious  disad- 
vantage of  the  people  of  the  Villago  of  Noro^ 
ton. 

It  would  seem,  from  the  facts  found,  that 
an  Inference  of  fact  may  have  been  Justified 
that  Sprtngdale  had  grown  greatly  and  Noro- 
ton had  not  because  of  the  one  community 
having  had  a  five-cent  rate  to  Atlantic  square 
and  the  other  not  But  we  cannot  so  con- 
clude, unless  there  is  a  specific  finding  of 
that  fact  Many  other  considerations  may 
have  operated  or  largely  contributed  to  this 
result.  We  may  assume  that  a  five-cent  rate 
would  benefit  Noroton  and  Its  public,  for 
this  Is  a  self-evident  fact.  But  we  do  not 
know  what  Its  effect  would  be  upon  the  re- 
turns to  the  railway.  It  may  be  held  to  be 
a  principle  of  trafilc  that  a  reduction  of 
rates  Increases  the  volume  of  business,  but 
no  principle  which  we  are  at  liberty  to  re- 
gard tells  us  in  a  given  case  what  will  be  the 
extent  of  tlie  Increase,  or  what  the  effect  up- 
on the  net  returns.  Chicago,  etc.,  Ry.  Co.  v. 
Wellman,  143  U.  S.  339.  344,  12  Sup.  Ct  400, 
36  U  Ed.  176. 

In  detcnmnlng  the  reasonableness  of  a 
rate  we  cannot  leave  out  of  the  consideration 
the  effect  of  the  change  of  rate  upon  the  rail- 
way return  any  more  than  we  can  tliat  upon 
the  public 

The  petitioner's  case  reduces  Itself  to  this: 
That  the  schedule  of  rates  upon  the  Stam- 
ford division  gives  a  materially  longer  ride 
for  a  single  five-cent  fare  on  some  of  the 
lines  converging  at  Atlantic  square  than  it 
does  on  the  Noroton  line.  In  a  similar  situa- 
tion the  court  say: 

"The  question  presented  for  consideration  is 
not  the  reasonableness  per  se  of  the  char^,  but 
its  reasonableness  considered  in  relation  to 
charges  made  by  plaintiff  at  other  localities  on 
its  system  for  like  and  contemporaneous  serv- 
ice. •  •  •  The  discrimination,  without  an 
excuse  recognized  by  the  law,  would  be  in  and 
of  itself  unjust  and  unreasonable."  Portland 
Ry.  L.  &  P.  Co.  V.  Oregon  R.  Commission,  229 
U.  S.  897,  411,  33  Sup.  Ot.  820,  57  L.  Ed.  124a 

'i')ie  petitioner  is  accurate  in  his  claim  as 
to  the  lines  to  Springdale,  Sound  Beach,  and 
Shippan's  Point  but  as  to  the  other  tliree 
Unes  converging  at  the  square  the  single  five- 
cent  fare  on  the  Noroton  line  gives  the  longer 
ride.  And  the  distance  covered  by  the  sin- 
gle flve-CMit  fare  on  the  Noroton  line  is  prac- 
tically the  average  distance  the  single  fare 
wUl  carry  a  passenger  on  all  the  lines  of  the 
system  converging  at  the  square. 

The  element  of  distance  may  be  a  controll- 
ing factor  in  a  case  of  discrimination,  but 
not  Invariably  so.    As  a  rule,  other  factors 


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101  ATLANTIC  REPOnTEB 


(Conil. 


are  neopssniily  relevant  Iwfore  the  conclusion 
of  a  discrlmlnntion  In  rutcs  can  be  made. 
Facts  which  affect  the  question  of  traffic 
profit  are  factors  to  be  considered.  It  may 
be  that  a  divergence  In  rates  betvi^een  com- 
munities similarly  conditioned  would  be  dis- 
criminatory Irrespective  of  the  element  of 
traffic  profit  That  situation  we  leave  open 
until  it  presents  itself.  And  the  Identity  or 
similarity  of  cpnditlons  are  also  important 
factors  in  determining  whether  a  rate  is  dis- 
criminatory. 

[8]  The  foundation  of  the  petitioner's  claim 
of  a  discrimination  Is  that  the  defendant 
charges  "Noroton  passragers  twice  the  fare 
that  it  charges  to  other  passengers  similarly 
circumstanced."  The  finding  does  not  sup- 
port this.  The  judgment  must  be  controlled 
by  the  finding.  And  upon  that  we  cannot 
hold  that  there  was  any  undue  preference  or 
advantage  In  the  other  rates,  or  that  the 
trial  court  erred  in  concluding  that  the  rate 
complained  of  was  not  reasonable,  for  the 
facts  found  do  not  sui^ort,  much  less  re- 
quire, the  conclusion  that  this  rate  is  either 
exorbitant,  excessive,  or  discriminatory. 

There  is  no  error.  The  other  Judges  con- 
curred. 


(91  Oonn.  727) 
BULKELEX  v,  BROTHERHOOD  ACCI- 
DENT CO. 

(Supreme  Court  of  Errors  of  Connecticut. 
June  14,  1917.) 

1.  iNstmANCK  €=>339  —  Accident  Insurance 
— Change  of  Occupation. 

The  act  of  setting  off  a  single  firework  ia 
not  a  change  of  occupation  from  that  of  garden- 
er to  that  of  user  or  handler  of  fireworks,  with- 
in the  provision  of  an  accident  iK>licy. 

[Ed.  Note.— For   other  cases,   see  Insurance, 
Cent  Dig.  {  879.] 

2.  Insurance    ie=>4ei(l)  —  Accident   Insdb- 

ANCE — VOLUNTABY  EXPOSUBE  TO  DANOEB. 

Evidence  that  the  bombs  were  ordinarily 
safe,  that  from  one  to  two  minutes  usually  elaps- 
ed between  the  lighting  of  the  fuse  and  the  ex- 
plosion  of  the  charge,  which  threw  the  bomb 
upwards,  and  that  insured,  his  employer,  and 
members  of  the  family  had  set  off  a  great  many 
of  them  on  other  occasions,  is  enough  to  show 
that  the  act  of  setting  off  in  the  usual  way  a 
bomb,  a  firework,  was  not  a  voluntary  exposure 
to  unnecessary  danger,  within  the  provision  of 
an  accident  policy. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  i  IISO.] 

8.  Evidence  €=^126(2)— I>E0i.A]unoN8— Mas- 

HEB  OF  Accident. 
Relative  to  the  question  whether  insured, 
fatally  injured  by  explosion  of  a  bomb  whidi 
he  was  setting  off,  voluntary  exposed  himself  to 
unnecessary  danger,  within  the  provision  of  his 
accident  policy,  his  declarations  while  on  the 
way  to  the  hospital,  in  answer  to  the  question 
as  to  what  happened,  that  it  went  off  sooner  than 
he  expected,  and  something  about  a  quick-burn- 
ing fuse,  all  that  witness  could  remember,  are 
relevant  and  admissible,  and  make  it  more  prob- 
able that  the  accident  occurred  because  of  a 


quick-firing  fuse  than  from  attempting  to  set 
off  the  bomb  in  some  unusual  way. 

[Ed.  Note.— For  other  cases^  see  Evidence, 
Cent  Dig.  §  373.] 

Appeal  from  Superior  CourU  Hartford 
County ;  Mllt<ni  A.  Shumway,  Judge. 

Action  by  Morgan  O.  Bulkeley,  administra- 
tor, against  the  Brotherhood  Accident  Com- 
pany on  a  policy  of  health  and  accident  as- 
surance; From  a  Judgment  for  plaintiff,  de- 
fendant apiieals.    Affirmed. 

The  plalntUTs  decedent,  Oscar  L.  Johnson, 
a  gardener  in  the  plaintiff's  employ,  was  in- 
jured by  the  explosion  of  a  flreworli  called  a 
bomb,  intended  to  be  fired  by  placing  it 
In  a  mortar  and  lighting  a  fuse.  Some  of 
these  fireworks,  left  over  from  the  previous 
Fourth  of  July,  were  found  about  the  prem- 
ises, and  Johnson  was  seen  to  take  a  bomb 
and  mortar  from  plalntitTs  garage  toward 
an  open  place  near  by.  Nobody  witnessed  the 
accident,  but  an  explosion  was  heard,  and 
Johnson  was  observed  rolling  on  the  grass 
trying  to  extinguish  a  fire  burning  in  the 
clothing  about  his  neck  and  chest  Two 
days  afterwards  Johnson  died  in  consequence 
of  bums  and  wounds  received  from  the  ex- 
plosion of  the  bomb.  While  being  taken  to 
the  hospital  Johnson  was  asked,  "What  hap- 
pened?'' and  said  that  it  went  off  sooner  thaA 
he  expected,  and  something  about  a  quick- 
burning  fuse. 

The  policy  exempts  the  defendant  trom 
liability  for  injuries  caused  by  "voluntary 
exposure  to  unnecessary  danger,"  and  pro- 
vides that  in  case  of  injury  after  the  Insured 
has  "changed  his  occopation  to  one  classified 
by  the  company  aa  one  more  hazardous  than 
that  herein  stated"  the  company's  liability 
shall  be  only  for  the  amount  which  the 
premium  would  have  purdiased  at  the  rate 
fixed  by  the  company  for  such  more  hazar- 
dous occupation. 

The  complaint  alleges  that  the  insured 
duly  fulfilled  all  the  conditions  of  the  in- 
surance on  his  part,  and  that  the  death  was 
not  from  any  cause  excepted  In  the  policy. 
The  answer  leaves  the  plaintiff  to  his  proof 
as  to  the  facts,  denies  that  the  assured  tul- 
flUed  the  conditions  of  the  Insurance,  al- 
leges that  the  Injury  was  caused  by  volun- 
tary exposure  to  unnecessary  danger,  and, 
as  an  alternative  defense,  that  the  assured 
had  changed  his  occupation,  and  was  en- 
gaged In  nslng  or  handling  fireworks  when 
injured,  whereby  the  company's  liability  was 
reduced  to  $200,  In  respect  of  which  a  tender 
Is  pleaded. 

Stewart  N.  Dunning,  of  Hartford,  for  ap- 
pellant Warren  B.  Johnson,  of  Hartford, 
for  appellee. 

BEACH,   J.  (after   stating   the   facts   aa 

above).     [1 , 2]  It  is  too  plain  for  discussion 
that  the  act  of  setting  off  a  single  firework 


'or  other  casaa  see  Mm«  topic  and  KET-NUMBBR  In  all  K«7-Numb«r«d  Dlgnts  and  IndoxM 


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PaJ 


SCHWEHM  V.  CHEDTEN  TRUST  CO. 


»3 


is  not  a  change  of  occupation  from  that  of 
gardener  to  that  of  a  user  or  handler  of 
fireworks. 

The  other  ground  of  defense,  that  the 
Injury  was  caused  by  voluntary  exposure  to 
unnecessary  danger,  rests  upon  the  determi- 
nation of  a  motion  to  correct  the  finding  by 
erasing  therefrom  the  finding  that  the  death 
was  not  from  any  cause  excepted  In  the 
policy,  and  by  substituting  therefor  a  pro- 
posed finding  that  the  plaintiff  offered  no 
evidence  to  show  that  decedent  did  not  volun- 
tarily exx)ose  himself  to  unnecessary  danger. 
It  Is,  however,  unnecessary  to  follow  the  de- 
fendant's argument  any  further,  because  the 
finding  of  the  trial  court  Is  supported  by  the 
evidence,  and  the  defense  of  voluntary  ex- 
posure to  unnecessary  danger  Is  disposed  of 
on  the  merits  in  the  plaintiff's  favor.  There 
was  evidence  tending  to  show  that  the  bombs 
were  ordinarily  safe,  that  from  one  to  two 
minutes  usually  elapsed  between  the  lighting 
of  the  fuse  and  the  explosion  of  the  charge 
which  threw  the  bomb  upward,  and  that  the 
decedent,  his  employer,  and  members  of  the 
employer's  family  had  set  off  great  numbers 
of  them  at  Independence  Day  celebrations. 
This  was  enough  to  show  that  the  act  of  set- 
ting off  one  of  these  bombs  In  the  usual  way 
was  not  a  voluntary  exposure  to  unnecessary 
danger. 

[3]  Then  the  question  remained  whether 
Johnson  attempted  to  set  the  bomb  off  in 
some  unusual  way,  or  in  some  other  way 
voluntarily  exposed  himself  to  unnecessary 
danger  In  setting  it  off.  On  this  point  his 
declarations  made  while  being  taken  to  the 
hospital  are  relevant  and  admissible,  and 
they  make  it  more  probable  than  otherwise 
that  the  accident  occurred  because  of  a  de- 
fective quick-firing  fuse.  Defendant  excepted 
to  the  admission  of  these  declarations,  and 
now  makes  the  claim  that  they  were  too 
vague  and  Indefinite  to  be  admitted  in  evi- 
dence. This,  however,  was  the  fault  of  the 
witness  to  whom  the  declarations  were  made, 
who  was  obliged  to  give  the  substance  of 
what  was  said  because  he  could  not  remember 
the  words.  Taking  these  disconnected  phras- 
es as  expressing  the  substance  of  John- 
son's declarations,  there  is  no  difficulty  what- 
ever in  supporting  the  finding  of  the  trial 
court  that  the  death  was  not  from  any  cause 
excepted  In  the  policy. 

There  is  no  error.  The  other  Judges  con- 
curred. 


(267  Pa.  TO) 
SOHWEHM  V.  CHEXiTEN  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

1.  BuiLDiHO  AND   Loan   Associations   «=3 
23(4)  —  AtTTHOMTT  of  Pkbsident  of  Loan 

SOCIBTT— MiSAPPBOPBIATION— LlABILIXr. 

The  president  of  a  loan  society,  whom  the 
hy-laws  made  the  chief  executive  officer  and  ac- 


tive manager,  was  authorized  to  accept  money 
paid  to  the  society  by  cash  or  by  check  to  its 
order,  and  tiis  misappropriation  of  funds  so 
paid  was  the  loss  of  the  society. 

[Ed.  Note.— For  other  cases,  see  Building  and 
Loan  Associations,  Cent.  Dig.  |  29.] 

2.  Banks  and  Banking  «=»109(2)  —  Presi- 
dent OF  IX>AN  SocnSTT  —  INOOBSEMBNT  OF 

Bills  oe  Notes. 
Where  the  authority  of  a  bank   president 
comes  from  the  directors,  he  may  indorse  bills 
or  notes  payable  to  it. 

[EM.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  $  259.] 

3.  Banks  and  Banking  i8=138— Depostts— 
Payment  on  Check— Liability  to  Deposi- 

XOB. 

Where  a  depositor  drew  his  check  upon  de- 
fendant bank  to  the  order  of  a  loan  society, 
whose  president  and  chief  executive  officer  in- 
dorsed it  and  misappropriated  the  proceeds,  the 
bank  was  not  liable,  as  the  proceeds  were  paid 
to  the  society  in  accordance  with  the  terms  of 
the  check. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  D'.s.  li  398-405.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  a  bank  deposit  by  Harry 
J.  Schwehm  against  the  Chelten  Trust  Com- 
pany. Verdict  for  plaintiff  for  $5,294.50, 
and  Judgment  thereon,  and  defendant  ap- 
peals. Reversed,  and  judgment  entered  for 
defendant 

Argued  before  MESTEEZAT,  POTTER, 
STEWART,  MOSCHZISKBH,  and  FRAZ- 
ER,  JJ. 

Chas.  C.  Norrls,  Jr.,  of  Philadelphia,  for 
appellant.  Julius  C.  Levi  and  David  Mandel, 
Jr.,  both  of  Philadelphia,  for  appellee. 

POTTER,  J.  The  plaintiff  In  this  case, 
who  was  a  depositor  with  the  Chelten  Trust 
Company,  drew  his  check  upon  that  insti- 
tution for  the  sum  of  $5,002,  payable  to  the 
order  of  Federal  Loan  Society.  The  check 
was  Indorsed,  "Federal  Loan  Society,  H.  W. 
Stoll,  President,  Jos.  R.  Friedmaq,"  and 
was  cashed  by  the  Franklin  Trust  Company, 
and  collected  by  the  latter  from  defendant, 
through  the  Com  Exchange  National  Bank, 
and  charged  by  defendant  against  plaintiff's 
deposit  account. 

[1]  Plaintiff  claimed  that  Stoll,  who  was 
president  of  the  Federal  Loan  Society,  bad  no 
authority  to  Indorse  the  check  In  the  name  of 
the  society,  that  his  Indorsement  did  not 
transfer  title  to  it,  and  that  defendant's  ac- 
tion in  paying  it,  and  charging  it  against  his 
account,  was  not  bindlnig  upon  him.  He 
therefore  brought  this  suit  to  recover  the 
amount  so  charged.  At  the  trial,  a  request 
for  binding  instructions  In  favor  of  defendant 
was  refused,  and  the  Jury  were  Instructed 
to  render  a  verdict  for  plaintiff  for  the  full 
amount  of  the  claim.  From  the  judgment 
thereon  entered,  defendant  has  appealed.  Its 
counsel  contend  that  under  the  by-laws  of  the 
Federal  Loan  Society,  the  president  was  con- 
stituted the  general  manager  of  the  business 


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of  the  corporation,  and  tbls  necessarily  gave 
blm  tbe  power  to  Indorse  Ita  commercial 
paper.  It  appears  from  the  record  that  the 
by-laws  were  not  silent  as  to  the  president's 
authority,  but  they  provided  that  he  should 
be  the  chief  executive  officer  of  the  company 
and  should  "have  general  and  active  manage- 
ment of  the  business  of  the  company,"  should 
"have  general  supervision  and  direction  of 
all  the  other  officers  of  the  company,"  and  see 
that  their  duties  were  properly  performed, 
should  make  annually  to  the  board  of  direc- 
tors a  report  of  the  operations  of  the  com- 
pany for  the  fiscal  year,  and  from  time  to 
time  reiKirt  to  them  such  matters  as  the  in- 
terests of  the  company  might  require  to  be 
brought  to  their  notice,  and  should  "have 
the  general  powers  and  supervision  and  man- 
agement usually  vested  in  the  office  of  the 
president  of  a  corporation."  Broader  powers 
in '  the  management  of  the  business  could 
hardly  have  been  bestowed.  The  president 
was  not  only  anthorieed  to  act  for  the  com- 
pany, but  was  to  see  that  all  other  officers 
discharged  their  dntles.  Counsel  for  plain- 
tlflf,  however,  contend  that  the  power  of  the 
president  was  limited  by  two  provisions 
of  the  by-laws.  The  first  directs  the  treas- 
urer to  "deposit  all  money  and  other  valu- 
able effects  in  the  name  and  to  the  credit  of 
the  company  in  such  depositories  as  may  be 
designated  by  the  board  of  directors."  This 
provision,  however,  only  relates  to  the 
duties  of  the  treasurer,  who  is  expressly 
placed  under  the  "general  supervision  and 
direction"  of  the  president.  It  puts  no  limi- 
tation on  the  iwwers  conferred  on  the  presi- 
dent himself.  The  other  provision  Is  that 
"all  checks,  drafts  or  orders  for  the  payment 
shall  be  signed  by  the  treasurer  and  counter- 
Migned  by  the  president."  This  refers  only 
to  instruments  for  the  payment  of  monfey 
by  the  corimration,  not  to  the  Indorsement 
or  transfer  of  Instruments  of  which  the 
corporation  is  not  the  maker,  but  the  payee. 
It  does  not  limit  the  power  of  the  president 
aa  to  the  latter. 

[2, 3]  Under  the  by-laws,  as  noted  above, 
the  president  was  made  the  "chief  execu- 
tive officer"  and  the  general  and  active  man- 
ager of  the  business  of  the  company.  He 
had  control  over  every  other  officer  of  the 
company,  and  power  to  direct  the  disburse- 
ment of  Its  funds.  This  authority  was  ample 
to  authorize  him  to  accept  money  paid  to 
the  company,  whether  in  cash  or  In  the  form 
of  a  check  payable  to  the  order  of  the  com- 
pany. If  he  misappropriated  funds  paid  In 
good  faith  to  him  as  the  representative  of 
the  company,  the  loss  must  be  that  of  the 
'■orporation  that  authorized  him  to  act,  and 
held  him  out  to  the  public  as  its  chief  of- 
tlcer  and  general  agent.  As  the  power  was 
delegated  to  the  president  In  the  by-laws, 
•■here  Is  no  question  here,  as  to  acquiescence, 
by  the  board  of  directors.  No  action  upon 
the  part  of  the  directors  was  necessary.    But 


even  where  his  authority  comes  from  the 
directors,  the  president  of  a  bank  may  in- 
dorse bills  or  notes  payable  to  it  And  It 
would  seem  that  he  has  an  implied  power  to 
Indorse  and  transfer  its  negotiable  paper. 
1  Daniels,  Neg.  Inst.  $  3M. 

It  should  be  remembered  that  in  the  pres- 
ent case,  in  so  far  as  the  record  shows,  the 
validity  of  the  indorsement  was  not  ques- 
tioned by  the  Federal  Loan  Society,  the 
payee  of  the  check.  It  is  the  drawer  of  the 
check  who  complains.  It  does  not  appear 
that  the  corporation  lias  denied  that  it  was 
bound  by  the  indorsement  of  its  president, 
or  that  It  has  refused  to  carry  out  the  con- 
tract for  which  the  check  constituted  the 
consideration.  What  the  transaction  was, 
is  not  very  clear,  but  apparently  it  was  a 
purchase  of  stock.  Plaintiff  testified  that  he 
had  not  received  the  stock,  but  did  not  say 
that  the  corporation  had  refnsed  to  issue  It 
to  him,  nor  did  he  say  that  he  had  made  de- 
mand for  it.  Under  the  facts  shown,  we  are 
clearly  of  opinion  that  payment  of  the  chedt 
to  the  president  of  the  company  was  payment 
to  the  corporation. 

The  fifth  and  sixth  assignments  of  error 
are  sustained.  The  Judgment  la  reversed, 
and  is  here  entered  for  defendant. 

'^^'^^  (267  Pa.  17) 

O'MALLBY  et  al.  v.  PUBMC  LEDGER  GO. 

(Supreme   Court  of  Pennsylvania.     March   5, 
1917.) 

1.  Municipal  Corporations  «=»70e(4)— Evi- 
dence OF  Ownership— Injcbiks  on  Stbxet. 

In  an  action  for  personal  injuries  wbea 
struck  by  a  motor  truck  alleged  to  be  the  prop- 
erty of  defendant  company,  where  it  appeared 
that  defendant's  name  was  painted  upon  the 
car  containing  bundles  of  newspapers,  testimony 
of  a  policeman  that  shortly  before  the  accideDt 
be  saw  a  car  of  such  description  delivering  bun- 
dles of  newspapers,  and  knew  it  because  he  had 
often  seen  it  in  the  neiKhborhood  deliverins 
newspapers,  and  that  in  the  particular  case  his 
attention  had  been  attracted  to  the  driver's  hur- 
ry in  tossing  papers  from  the  car,  was  admissi- 
ble. 

[Ed.  Note.— For  other  cases,  see  Uanidpal 
OorporationB,  Cent.  Dig.  f  ISlS.] 

2.  Appkai,  and  Exkob  «=3060— Jitbt  «s>149 
—Question  fob  Jubt— Withdrawal  of  Jd- 

BOB. 

In  such  action,  where  plaintiff  husband  tes- 
tified as  to  conversation  on  day  "when  we 
were  awarded  the  verdict"  in  former  trial,  where 
there  was  no  effort  to  lead  him  to  the  objection- 
able remark,  and  where  the  jury  were  instructed 
to  disregard  it,  the  refusal  of  a  continuance  was 
within  trial  court's  discretion. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {{  3845^848;  Jury.  Cent 
Dig.  il  635-637.r 

8.  Municipal  Cobpobations  <8=»7(K5<(J)— Use 

OF   Stbeet— Personal   Isjubt— Question 

fob  Jury. 

In  action  for  personal  injury  when  struck  by 

a  motor  truck,   alleged  to   belong  to  defendant 

newspaper  oompnny,  held,  on  the  evidence,  that 

the  ownership  of  the  car  and  its  operation  Id 

the  company's  service  was  for  the  jury. 

[Ed.  Note. — For  other  cnsos,  see  Municipal 
Corporations,  Cent  Dig.  |  ir.lS.] 


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O'MALLET  V.  PUBLIC  liEDOER  CO. 


95 


Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  Injury 
by  Catharine  O'Malley  and  John  O'Malley 
against  the  Public  Ledger  Company.  Ver- 
dict for  plaintiff  John  O'Malley  for  $750,  and 
for  Catharine  O'Malley  for  $3,000,  reduced 
by  the  court  to  $500  and  $2,000,  respective- 
ly, Ttith  Judgment  thereon,  and  defendant 
appeals.    Aflftrmed. 

Argued  before  MESTREZAT,  POTTER, 
STEWART,  MOSCHZISKER,  and  FRA- 
ZER,  JJ. 

Robert  P.  Shlck  and  Wlnfleld  W.  Craw- 
ford, both  of  Philadelphia,  for  appellant 
Bertram  D.  Rearlck,  of  Philadelphia,  for  ap- 
pellees. 

MOSCHZISKER,  J.  John  O'Malley  and 
Catharine,  his  wife,  sued  to  recover  for  per- 
sonal injuries  to  the  latter;  verdicts  were 
rendered  in  their  favor,  uiwn  which  judg- 
ments were  entered ;  the  defendant  has  ap- 
pealed. 

On  January  8, 1915,  between  6  and  5:30  a. 
m.,  Mrs.  O'Malley  was  struck  by  a  south- 
ward-hound automobile  while  crossing  Twen- 
tietii  street,  in  the  city  of  Philadelphia,  at 
the  south  side  of  McClellan  street,  or  about 
150  feet  from  Moore  street,  the  next  thor- 
oughfare to  the  north.  The  testimony  relied 
uiKjn  by  the  plaintiffs,  when  viewed  in  the 
light  most  favorable  to  them,  is  sufflcient  to 
sustain  the  following  material  findings: 
Just  before  leaving  the  sidewalk,  Mrs.  O'Mal- 
ley looked  up  and  down  Twentieth  street 
and,  seeing  no  vehicles  approaching  from  ei- 
ther direction,  she  started  slowly  to  cross 
eastward;  in  the  center  of  that  thoroughfare 
there  Is  a  single  car  track,  and.  Just  before 
she  reached  the  first  rail  of  this  track,  she 
was  struck  by  the  automobile,  which  had 
turned  southward  into  Twentieth  street  from 
Moore  street;  the  machine  was  being  driv- 
en at  from  40  to  50  miles  an  hour,  and  came 
suddenly  upon  Mrs.  O'Malley,  without  warn- 
ing of  any  kind ;  she  was  knocked  down,  and 
subsequently,  as  a  result  of  the  accident, 
suffered  a  miscarriage  and  other  injurious 
results;  finally,  the  motor  in  question  was 
owned  by  the  Public  Ledger  Company  and, 
at  the  time  of  the  injury  to  Mrs.  O'Malley, 
It  was  being  oi^erated  in  the  defendant's 
service. 

Thwe  are  numerous  assignments  of  er- 
ror; but  only  a  few  of  them  require  serious 
consideration.  To  begin  with,  we  have  look- 
ed at  the  medical  testimony  with  care,  and 
feel  that  It  Is  sufllcient  to  connect  Mrs. 
O'Malley's  impaired  physical  condition  with 
the  accident,  and  to  Justify  the  conclusion 
that  her  Injuries  followed  as  a  result  thereof. 

[1]  We  see  no  error  in  the  admission  of 
the  testimony  of  the  policeman,  Jordan.  He 
recalled  the  date  of  the  occurrence  under 
Investigation ;  and  the  fact  that  his  memory 
In  this  respect  was  aided  by  the  drcumstanoe 


that  be  had  held  a  conversation  with  anoth- 
er ofllcer  concerning  the  accident,  right  aft- 
er it  happened,  would  not  militate  against 
the  admissloQ  of  his  testimony.  It  may  be 
well  to  note,  however,  that  the  details  of 
this  conversation  were  not  allowed  In  evi- 
dence. Other  witnesses  who  saw  the  acci- 
dent had  already  testified  that  the  car  which 
Injured  Mrs.  O'Malley  was  a  small  machine 
with  the  name  of  the  Public  Ledger  painted 
thereon,  containing  bundles  of  newspapers. 
The  policeman  was  permitted  to  state  that, 
very  shortly  after  the  time  fixed  by  the  for- 
mer witnesses,  he  saw  an  automobile  of  like 
description  delivering  bundles  of  newspapers 
about  4%  squares  from  the  place  of  the  ac- 
cident; Uiat  he  knew  the  car,  having  seen 
it  in  the  neighborhood  morning  after  morn- 
ing, on  a  like  errand ;  and  that,  on  this  par- 
ticular occasion,  the  driver  attracted  atten- 
tion by  his  seeming  hurry,  when  he  tossed 
out  papers  upon  the  comer  where  the  wit- 
ness was  standing,  without  stopping  his  ma- 
chine. Although  this  testimony,  by  itself, 
would  have  but  little  weight,  yet,  in  connec- 
tion with  other  evidence  in  the  case,  It  was 
draimstantlally  relevant  to  Identify  the  au- 
tomobile which  caused  the  damage  as  a  ve- 
hicle l)elonging  to  and,  at  the  time,  In  the 
service  of  the  defendant  Bowling  v.  Rob- 
erts, 235  Pa.  89,  83  Atl.  600;  Hershinger  v. 
Penna.  R.  R.  Co.,  25  Pa.  Super.  Ct  147. 

[2]  While  the  trial  judge  might  have  with- 
drawn a  juror  because  of  the  unfortunate 
remark  made  by  Mr.  O'Malley  when  upon 
the  stand,  to  the  effect  that  he  had  a  con- 
versation with  another  man  <mi  the  day 
"when  we  were  awarded  the  verdict"  (evi- 
dently referring  to  the  verdict  In  a  former 
trial  of  the  same  cause),  yet  we  cannot  say 
the  refusal  so  to  do  constitutes  reversible 
error.  The  trial  had  been  on  for  three  days ; 
there  was  no  attempt  on  the  part  of  coun- 
sel for  the  plaintiff  to  obtain  an  unfair  ad- 
vantage by  leading  on  the  witness  to  the  oI>- 
jectionable  remark.  On  the  contrary.  It 
seems  to  have  slipped  out  without  any  pre- 
meditated purpose,  and,  when  this  occurred, 
the  judge  at  once  warned  the  Jurors  entirely 
to  disregard  the  Incident;  moreover,  at  the 
end  of  his  charge,  he  repeated  these  Instruc- 
tions. In  conclusion,  we  do  not  conceive  it 
at  all  probable  the  remark  4n  question  had 
any  effect  prejudicial  to  the  defendant;  for 
if  the  Jurors  understood  from  it  that  there 
had  been  a  former  finding  In  favor  of  the 
plaintiffs,  it  must  be  assumed  they  likewise 
realized  that  this  verdict  had  been  set  aside 
by  the  court 

[3]  No  part  of  the  charge  is  assigned  for 
error,  and  a  careful  reading  thereof  shows 
that  all  the  testimony  was  properly  and  cor- 
rectly submitted  to  the  jurors,  not  only  to 
find  the  relevant  facts,  but  to  draw  their 
own  Inferences  therefrom  In  deterniintng  the 
issues  Involved.  Of  course,  there  was  testi- 
mony produced  by  the  defendant  militating 
against  the  evidence  depended  uiM>n  by  the 


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(Pa. 


plaintiffs  to  show  the  former's  ownership  of 
the  car  and  that  the  machine  was  being  op- 
erated in  its  service  at  the  time  of  the  ac- 
cident ;  but  this  testimony  was  mostly  oral, 
and  hence  it  was  for  the  Jnry  to  pass  upon. 
The  assignments  of  error  are  all  OTermled, 
and  the  Judgments  aflSrmed. 


(257  Pa.  25) 

SCOTT  V.  AMERICAN  EXPRESS  CO. 

(Supreme  Court  of   Pennsylvania.     March   5, 
1917.) 

1.  Witnesses  e^STDCT)— Impeachment— Con- 

TSADICTOBT   STATEMENTS. 

The  credibility  of  a  witness  may  be  im- 
peached by  his  previous  statements  inconsistent 
with  or  contradictory  to  his  testimony,  including 
statements  made  in  pleadings,  where  the  omis- 
sion in  the  inconsistent  statement  occurred  when 
the  occasion  called  upon  him  for  disclosure. 

[Ed.   Note.— For  other  cases,   see   Witnesses, 
Cent.  Dig.  §  1251.] 

2.  Wn-NESSES    <S=»387— iMPEACnjIENT— Incoii- 

SI8TENT  STATKMKNT8— Sworn  Pleadinos. 
In  an  action  airainst  an  express  company  for 
injury  to  an  employ6  from  the  defective  condi- 
tion of  the  brakes  and  steering  apparntns  of  its 
motor  truck,  defended  on  ground  thnt  the  acci- 
dent was  caused  by  the  intoxication  of  the  driv- 
er, a  fellow  servant,  where  defendant's  super- 
intendent testified  that  be  visite<l  the  driver  aft- 
er the  accident,  and  he  then  showed  si^s  of 
having  been  drinking,  his  cross-examination  as 
to  whether  he  had  not  sworn  to  answers  in  the 
driver's  action  in  another  court  arising  out  of 
same  accident  which  said  nothing  about  the 
driver's  intoxication,  was  erroneous,  where  un- 
der the  rules  of  thnt  court  the  facts  constituting 
the  defense  were  not  re<iuired  to  be  stated  in  the 
answer. 

[Ed.   Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  §|  1228-12:{2.] 

3.  Appeal  and  Rrbor  «=3232(2)— Admissibii/- 
ITT  OF  Evidence— Objection. 

Where  the  record  was  not  clear  as  to  the 
ground  upon  which  objection  to  the  cross-exami- 
nation of  a  witness  was  based,  the  rule  that  on 
appeal  a  party  complaining  of  the  admission  of 
evidence  in  the  court  below  will  be  confined  to 
the  specific  objection  there  made,  was  not  appli- 
cable. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Knot,  Cent.  Dig.  {§  1430,  1431.] 

4.  Appeal  and  Errob  €=>1004(1)— Amount  oi" 
Verdict— Review. 

The  amount  of  a  verdict  will  be  reviewed  by 
the  Supreme  Court  under  authority  of  Act  May 
20,  1891  (P.  L.  lOl),  only  when  so  grossly  ex- 
cessive as  to  shock  the  sense  of  justice,  and  to 
show  a  clear  abuse  of  the  lower  court's  discre- 
tion in  refusing  to  set  it  aside. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §|  38(50-3876,  3048.] 

5.  Death  9=990(3) — Excessive  Damages. 

Verdicts  of  $1,717  awarded  the  father  of  in- 
jured minor  employ^,  and  $12,540  awarded  the 
estate  of  the  minor,  were  not  excessive,  where 
be  suffered  a  compound  fracture  of  both  legs 
above  the  knees,  lacerations  and  bruises  of  the 
scalp,  arms  and  back,  underwent  two  operations, 
and  lived  four  months  after  the  accident. 

[Ed.  Note. — For  other  cases,  see  Death,  (Tent. 
Dig.  §S  125,  126,  128.7 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 
Trespass    for   damages    lor   personal   In- 


juries by  Elizabeth  Soott,  administratrix  of 
the  estate  of  Joseph  P.  Scott,  deceased,  and 
Elizabeth  Scott,  administratrix  of  the  estate 
of  Edward  A.  Scott,  deceased,  against  the 
American  Express  Omjpany.  Verdict  for 
plaintiff  as  administratrix  of  the  estate  of 
Edward  A.  Scott  for  |1,717,  and  as  adminis- 
tratrix of  her  deceased  son,  Joseph  P.  Soott, 
for  $12,540,  and  Judgment  thereon,  motion 
for  new  trial  denied,  and  defendant  appeals. 
Reversed  with  a  new  venire. 

PlaintiiTs  injuries  consisted  of  oomponnd 
fractures  of  both  legs  alwve  the  knees,  lacera- 
tions and  bmises  of  the  scalp,  arms  and  back. 
Two  unsuccessful  operations  were  performed 
to  secure  unions  of  the  fractures  of  the  legs. 
Plaintiff  suffered  extreme  pain  except  when 
under  the  Influence  of  opiates,  and  died  as 
a  result  of  such  Injuries  over  four  months 
after  the  accident. 

Argued  before  MESTR13ZAT,  POTTER, 
STEWART,  MOSOHZISKER,  and  FRAZBR, 
JJ. 

John  Lewis  Evans,  John  G.  Johns<»,  and 
Thomas  De  Witt  Cuyler,  all  of  PhiladelplUa, 
for  appellant.  Francis  M.  McAdams  and 
William  H.  Wilson,  both  of  Philadelphia,  for 
appellee. 

FRAZER,  J.  This  action  was  brought  by 
Joseph  P.  Scott,  a  minor,  and  Edward  A. 
Scott,  liis  father,  to  recover  damages  for 
injuries  sustained  by  the  former,  as  a  result 
of  alleged  negligence  of  defendant  in  per- 
mitting the  brakes  and  steering  apparatus  on 
a  motor  truck,  on  which  the  minor  was  riding 
in  the  discharge  of  his  duties,  to  become  out 
of  order  and  remain  in  a  state  of  disrepair, 
which  resulted  in  the  macliine  l>ecoming  un- 
manageable  In  descending  a  street  with  some 
grade,  and  striking  a  telephone  pole  located 
along  tlie  highway.  Joseph  P.  Scott  died  as 
a  result  of  his  injuries,  and,  upon  the  subse- 
quent death  of  his  father,  Eiizalieth  Scott 
prosecuted  the  action  to  Judgment  as  admin- 
istratrix of  their  estates. 

The  deceased  minor  was  employed  b;  de- 
fendant to  ride  on  its  trucks  and  assist 
drivers  in  handling  and  guarding  express 
packages.  The  defense  was  that  the  accident 
was  caused  by  the  negligence  of  the  driver, 
who,  according  to  the  evidence,  had  been 
drinking  and  was  in  an  intoxicated  condi- 
tion at  the  time;  which  fact  was  known  to 
Young  Scott.  The  trial  Judge  submitted  the 
case  to  the  Jury,  in  a  charge  to  which  no  com- 
plaint is  made,  and  there  was  a  verdict  on 
behalf  of  the  father's  estate  for  $1,717,  and 
on  behalf  of  the  estate  of  the  minor  for  $12,- 
540.  A  motion  for  a  new  trial  was  dismissed 
by  the  court  below,  and  defendant  appealed. 

We  deem  it  unnecessary  to  refer  in  detail 
to  the  circumstances  of  the  accident,  since 
the  only  questions  argued  before  this  court 
were  as  to  the  correctness  of  the  action  of 
the  court  In  admitting  certain  evidence  to 


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97 


Impeach  the  credibility  of  one  of  defendant's 
vritnesses,  and  whether  or  not  the  verdict  on 
behalf  of  the  minor's  estate  was  ezceeslve. 

[1, 2]  Superintendent  Juller,  of  defendant 
company,  testified  to  visiting  the  hospital 
within  two  hours  after  the  aeddent,  and.  In 
reply  to  a  question  by  his  own  attorney, 
stated  he  saw  Carey,  the  driver,  at  that  time 
and  his  breath  smelled  as  If  he  had  been 
drinking.  On  cross-examination  by  plaintlfF's 
counsel  he  was  asked  whether  he  had  not 
sworn  to  and  signed  answers  in  actions  by 
the  driver  and  another  person  against  de- 
fendant In  the  municipal  court  involving  the 
same  accident.  Upon  objection  being  made, 
coonsel  for  plaintiff  stated  he  wished  to  test 
the  credibility  of  the  witness,  whereupon  the 
objection  was  overmled.  The  witness  then 
admitted  he  had  signed  and  sworn  to  the 
papers,  and  that  they  contained  no  statement 
to  the  effect  that  the  driver  had  been  drink- 
ing, or  was  Intoxicated.  Defendant  contends 
this  testimony  was  Improperly  admitted  and 
was  extremely  prejudicial  to  it,  owing  to  the 
fact  that  the  Jury  as  laymen  were  likely  to 
place  undue  weight  on  the  omisslMi,  whereas, 
In  fact,  such  omission  was  unimportant,  and 
the  statement  unnecessary  as  a  part  of  the 
pleadings  in  the  case. 

The  rule  is  well  settled  that  the  credibility 
of  a  witness  may  be  impeached  by  showing 
previously  made  statements  inconsistent  with, 
or  contradictory  to,  his  present  testimony, 
and  this  includes  inconsistent  statements 
made  in  pleadings  in  the  causes.  Henry's 
Penna.  Trial  Evidence,  |  65,  and  eases  dted ; 
Floyd  v.  Kulp  Lumber  Co.,  222  Pa.  257,  71 
AtL  13;  2  Wlgmore  on  Evidence,  §  1066.  To 
constltnte  grounds  for  discrediting  a  witness, 
however,  the  omission  must  be  made  at  a 
time  when  the  occasion  was  such  that  he  was 
called  upon  to  make  the  disclosure.  It  is 
only  where  the  witness  on  a  previous  occa- 
sion was  under  some  duty  to  speak  the  whole 
truth  concerning  the  matter  about  which  he 
now  testiSes  that  Impeachment  becomes  per- 
missible by  showing  an  omission  to  state  cer- 
tain material  facts  included  in  bis  testimony. 
Royal  Insurance  Oo.  r.  Beatty,  119  Pa.  6,  12 
AtL  607,  4  Am.  St  Rep.  622;  Huston's  Es- 
tate, 167  Pa.  217,  31  AtL  553.  ConsequenUy, 
in  considering  the  CMnpetency  of  the  evidence 
offered  for  the  purpose  of  Impeadiing  the 
witness,  the  scope  of  the  answers  filed  in  the 
municipal  court  of  Philadelphia  should  be 
considered.  Eule  7  of  that  court  provides 
that  an  answer  shall  contain  an  admission  or 
denial  of  each  fact  averred  In  the  statement 
of  claim,  and  that  all  facts  not  denied  by  de- 
fendant, or  of  which  he  does  not  aver  him- 
self to  be  Ignorant,  shall  be  deemed  to  be 
admitted.  This  rule  does  not  require  defend- 
ant to  state  the  facts  constituting  his  defense, 
but  merely  to  either  admit  or  deny  those 
averred  In  the  statement  of  claim.  We  have 
no  knowledge  of  the  contents  of  the  state- 
ments of  claim  referred  to,  as  they  are  not 
printed  in  either  i>aper  book,  and  nowhere  In 
101A--7 


the  record  does  it  appear  that  the  question 
of  intoxication  was  raised  in  the  aeclaratlon 
in  either  case.  The  answers  In  questiona 
admit  the  happening  of  the  accident,  but 
deny  that  either  the  brakes  or  steering  ap- 
paratus were  defective  or  out  or  order,  or 
that  the  accident  was  the  consequence  of  the 
failure  of  these  parts  of  the  truck  to  properly 
work,  or  of  anything  else  for  which  defendant 
was  responsible.  No  necessity  appears  for 
the  assertion  or  denial  of  the  charge  that  the 
driver  had  been  drinking  previous  to  the  hap- 
pening of  the  accident 

The  formal  pleadings  in  a  case  are  drawn 
by  attorneys  in  technical  language,  and  con- 
tain only  such  averments  of  facts  as  in  the 
opinion  of  the  attorneys  are  material  to  make 
out  a  prima  fade  case.  They,  therefore,  do 
not  purport  to  be  a  complete  history  or  re- 
dtal  of  all  the  facts  of  the  transaction,  and 
no  unfavorable  Inference  should  be  drawn 
from  the  failure  to  Include  details  which  are 
the  natural  and  usual  parts  of  the  proof, 
rather  than  of  the  pleadings  in  the  case.  For 
these  reasons  it  was  error  to  permit  the  use 
of  the  answers,  filed  in  the  municipal  court 
cases.  In  attacking  the  credibility  of  the  wit- 
ness. 

[3]  Plaintiff  claims  the  evidence  was  ob- 
jected to  solely  on  the  ground  that  It  should 
have  been  introduced  as  a  part  of  plalntifCs 
case;  that  this  objection  conceded  its  rel- 
evancy, and,  under  the  familiar  rule  that  a 
party  complaining  on  appeal  of  the  admission 
of  evidence,  in  the  court  below,  will  be  con- 
fined to  the  specific  objection  there  made. 
Morgan  v.  Gamble,  230  Pa.  165,  79  Atl.  410 ; 
Roebllng's  Sons  Co.  v.  American  Amusement 
&  Construction  Co.,  231  Pa.  261,  80  Atl.  647. 
An  examination  of  the  record  falls  to  con- 
vince us  that  this  rule  should  be  applied  in 
the  present  case.  When  the  papers  were 
handed  to  the  witness  Juller,  defendant's 
counsel  made  the  following  objection:  "I 
object  to  any  evidence  in  regard  to  these 
papers,  unless  it  is  introduced  as  part  of 
plaintiff's  case."  The  trial  Judge  then  said: 
"It  goes  to  the  credibility  of  the  witness,  I 
understand.  Is  that  the  purpose?"  Plain- 
tiff's counsel  repUed:  "That  la  the  purpose 
entirely."  The  court  thereupon  overruled 
the  objection,  but  no  exception  was  taken  to 
the  ruling  at  this  point  After  a  preliminary 
examination  of  the  witness  the  record  shows 
the  following: 

"Q.  In  those  affidavit*  you  didn't  say  a  word, 
did  you,  as  to  Carey  [the  driver]  being  drunk  or 
as  to  having  a  smell  of  intoxicating  liguor  on 
him?  (Objected  to  by  counsel  for  defendant 
Objection  overruled;  exception  to  defendant) 
A.  No." 

While  the  objection  first  made  relates  to  the 
order  of  the  admission  of  the  evidence,  the 
comment  of  the  court  and  counsel  for  plain- 
tiff clearly  indicate  the  evidence  was  offered 
for  the  sole  purpose  of  testing  the  credibility 
of  the  witness,  and  the  general  objection  fol- 
lowing that,  upon  which  the  exception  was 


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(Pa. 


founded,  may  well  have  been  based  npon  that 
ground.  It  is  sufficient  to  say  that  the  record 
is  not  clear  or  specific  on  this  point,  and  in 
that  case  the  rule  Invoked  by  appellee  will 
not  be  applied.  Kutin  v.  Ligonier  Valley  R. 
R.  Co.,  255  Fa.  445,  100  Atl.  142.  It  follows 
that  the  first  assignment  of  error  must  be 
sustained. 

[4, 5]  The  other  question  involved  is 
whether  or  not  the  damages  awarded  are 
excessive,  or  whether  the  court  below  abused 
its  discretion  in  refusing  to  cut  down  the 
verdict,  or  allow  a  new  trial.  Since  the  pas- 
sage of  Act  May  20,  1891  (P.  L.  101),  giving 
this  court  power  to  set  aside  verdicts  deemed 
to  be  excessive,  we  have  repeatedly  said  that 
the  question  of  the  amount  of  the  verdict 
would  be  reviewed  only  in  cases  where  so 
grossly  excessive  as  to  shock  our  sense  of 
Justice,  and  where  the  impropriety  of  allow- 
ing a  verdict  to  stand  is  so  manifest  as  to 
show  a  clear  abuse  of  discretion  on  the  part 
of  the  court  below  in  refusing  to  set  it  aside. 
Quigley  V.  Penna.  E.  R.  Co.,  210  Pa.  162,  59 
AtL  958;  Reed  v.  Pittsburg,  Carnegie  & 
Western  R.  R.,  210  Pa.  211, 69  Atl.  1067 ;  Dun- 
lap  V.  Pittsburgh,  Harmony,  Butler  &  New 
Castle  Ry.  Co.,  247  Pa.  230,  93  AtL  276.  In 
view  of  the  nature  of  the  injury,  the  pain 
and  suffering  endured,  and  all  the  circum- 
stances of  the  case,  it  cannot  be  said  the  ver- 
dict in  this  case  is  so  excessive  as  to  warrant 
our  interference  upon  that  ground. 

The  judgment  is  reversed  with  a  new  ve- 
nire. 

.(»7  Pa.  1) 

THOENEBE  et  al  v.   MOSBY  et  al. 

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

Nuisance  $=33(9)— Dance  Haix— Chabactkr 

OF  NEIGIIBOanoOD. 
A  bill  in  equity  to  enjoin  dancing  in  a  hall 
in  a  neighborhood  not  strictly  residential  was 
properly  dismissed,  where  it  appeared  that  the 
colored  persons  attending  the  dances  conducted 
themselves  in  en  orderly  manner,  and  made  no 
more  noise  than  was  usual  on  such  occasions, 
though  after  the  dancing,  which  usually  closed 
at  12  o'clock,  there  was  considerable  noise  in 
the  street  on  departing,  as  that  coald  be  satis- 
factorily controlled  by  the  police. 

[Ed.  Note.— For  other  cases,  see  Nuisance, 
Cent  Dig.  {§  20-22.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Bill  in  equity  for  an  injunction  by  W.  Her- 
man Tboenebe  and  others  against  Jerome 
Mosby  and  John  Foreman,  trading  as  Mosby 
&  Foreman,  and  Joseph  M.  Thomas,  trading 
as  Charles  J.  Thomas  Sons.  From  a  decree 
dismissing  the  bill,  plalntifts  appeal.  Af- 
firmed. 

Bill  in  equity  for  an  Injunction.  The  fact.s 
appear  In  the  following  opinion  by  Bregy, 
P.  J.,  in  the  court  of  common  pleas: 

This  is  a  bill  alleging  that  the  dcfentlants 
are  maintaininir  a  nuisance  at  the  hall,  1512  to 
1620  North  Thirteenth   street 


(1)  The  plaintiffs  reside  on  TWrteenth  street 
between  Jefferson  and  Oxford  streets. 

(2)  The  defendants  Mosby  and  Foreman  are 
lessees  of  a  ball  on  Thirteenth  street  between 
Jefferson  and  Oxford  streets,  where  they  have  a 
dancing  school.  The  defendant  Thomas  is  the 
owner  of  the  building. 

(3)  On  Monday,  Thursday,  and  Saturday 
nights  Mosby  and  Foreman,  who  rent  the  hall 
on  the  third  floor  of  the  stable  building  kno*n 
as  Thomas'  stable,  have  dancing  parties  that 
begin  at  9  o'clock  and  CMitinue  till  12  o'clock. 
On  Wednesday  night  they  teach  dancing  from 
8  -.30  o'clock  to  10 :45  o'clock.  On  Tuesday  and 
Friday  nights  the  hall  is  not  occupied  by  the 
dancing  school  in  any  way,  but  the  lessees  sublet 
it  (with  the  consent  of  the  owner,  Mr.  Thomas) 
for  concerts,  bells,  and  so  on  as  they  can  ob- 
tain a  tenant  During  the  15  months  the  de- 
fendants have  occnpiea  the  hall  they  have  rent- 
ed It  for  the  above  purposes  14  times. 

(4)  On  Monday,  Thursday,  and  Saturday 
nights,  the  music  for  the  dancing  parties  begins 
at  9  o'clock  and  continues  till  11 :50,  when  It 
stops  and  the  patrons  leave — the  hall  being  emp- 
tied by  12  o'clock.  On  Wednesday  night,  the 
teaching  night,  the  school  begins  at  8 :30  and 
closes  at  10 :45.  On  the  occasions  that  the  hall 
has  been  rented  out  for  different  entertainments, 
they  have  occupied  the  ball  till  2  o'clock  a.  m. 

(5)  The  music  at  the  dancing  parties  consists 
of  five  pieces,  viz. :  PianOtVioIin,  comet,  tron>- 
boue,  and  trap  drum.  On  Wednesday  nlshts  the 
music  is  by  the  piano  only.  The  same  five  pieces 
play  at  the  balls  or  entertainments  when  the 
place  is  rented. 

(G)  When  the  music  continues  after  11  o'clock 
it  is  muffled  to  subdue  its  noise,  and  so  con- 
tinues till  the  audience  leaves. 

(7)  The  hall  here  alluded  to  is  on  the  third 
floor  of  a  large  public  stable  building  that  has 
been  so  occupieil  for  over  40  years.  During 
the  many  years  of  the  existence  of  this  stable 
it  has  been  occupied  as  such,  both  for  the  sta- 
bling of  private  teams  and  the  hiring  of  horses 
and  carriages  to  the  public.  The  hall  on  the 
third  floor  has  for  over  30  years  been  rented  out 
as  a  dancing  school,  for  parties,  concerts,  and 
for  different  kinds  of  public  meetings,  political 
and  otherwise. 

(8)  The  neighborhood  is  no  longer  a  strictly 
residential  one.  This  one  square  on  Thirteenth 
street  between  Jefferson  and  Oxford  has  in  ad- 
dition to  the  large  stable  already  mentioned  quite 
a  number  of  business  places.  From  the  north 
side  of  Jefferson  street  to  the  south  side  of  Ox- 
ford street,  there  is  on  one  side  a  large  furni- 
ture manufactory,  a  barber  shop,  a  store,  a  tailor 
shop,  a  china  decoroting  store,  and  an  empty 
store  at  the  comer;  on  the  other  side  there  is 
a  saloon,  tailor  shop,  a  wall  paper  establishment, 
a  butcher  shop,  and  other  stores.  On  the  south 
side  of  Jefferson  street  at  Thirteenth  street 
there  is  a  grocery  store  at  one  comer  and  a 
drug  store  at  the  other;  and  on  the  north  side 
of  Oxford,  a  grocery  store  at  one  corner  and  an 
insurance  office  at  the  other. 

(9)  The  persons  attending  the  dances  and  en- 
tertainments heretofore  spoken  of  have  behaved 
themselves  in  a  proper  way  in  the  hall,  and  no 
misbehavior  there  luts  been  proved  or,  in  fact, 
alle);ed  against  them. 

(10)  The  patrons  of  the  hall  are  colored  peo- 
ple. 

(11)  When  the  audience  disperses  there  is  on 
the  street  the  noises  of  these  persons  talking  to 
each  other,  sayinR  good-bye  and  the  calling  to 
a  friend  to  wait,  etc. 

(12)  At  the  dancing  parties  the  attendance 
is  from  80  to  100 :  at  the  times  the  hall  is  rent- 
ed Romotimes  there  are  as  many  as  400  there. 

(1.'?)  The  occupants  of  four  houses  on  Thir- 
teenth street  complain  that  they  are  annoyed 
by  the  music  in  the  hall  and  by  the  noise  in 


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COMMONWEALTH  ▼.  SOHWAUTZ 


the  street  when  the  patrons  leave.  Teiry  many 
more  !»7  they  are  not  annoyed  and  have  no  com- 
plaint to  make. 

(14)  Within  the  ]aat  few  years  the  immediate 
neighborhood,  but  not  this  street,  has  become 
tenanted  by  a  large  number  of  colored  people. 

Conclusions  of  Law. 

The  plaintilTs  seek  to  have  the  defendants  close 
the  hall  at  about  10  o'clock,  complaining  that 
the  continuation  of  the  music  after  that  hour 
and  the  dispersal  of  the  audience  and  its  at- 
tendant noise  are  a  nuisance  that  annoys  them. 
The  complaint  raises  the  question  as  to  what 
hour  a  dancing  school,  party,  concert,  or  ball 
should  close  its  doors.  The  answer  must  depend 
upon  the  neighborhood,  and  the  facts  of  each 
pariicnlar  case,  as  Vasre  can  be  no  general  rule 
on  the  subject.  Considering  the  fact  that  I  have 
found  this  not  to  be  a  strictly  residential  neigh- 
borliood,  but  one  that  has  changed  into  a  partly 
business  one,  I  do  not  consider  it  unreasonaole 
to  keep  open  the  dancing  school  till  12  o'clock. 
The  hours  of  entertainment  are  not  what  they 
used  to  be.  Everything  is  later,  and,  as  times 
change,  we  must  change  oar  habits  with  them. 
Everything  has  been  done  by  the  proprietors  of 
the  school  to  lessen  the  sound  of  the  music 
after  11  o'clock,  and  I  see  no  reason  to  interfere 
with  the  dancing  school. 

As  to  the  parties  or  balls  that  are  held  on 
other  eveningB,  while  not  very  many  in  number, 
another  question  presents  itself.  Considering 
the  neighborhood  and  the  admitted  fact  that  on 
an  average  of  once  a  month  an  entertainment  of 
some  kind  is  given  which  continues  till  2  o'clock 
in  the  morning,  is  it  proper  to  issue  an  injunc- 
tion? This  question  is  not  without  difficulty. 
That  it  is  an  annoyance  to  the  plaintiBEs  to  have 
their  sleep  brokra  by  these  gatherings  is  un- 
doubtedly true.  Those  who  live  in  cities  must 
take  what  goes  with  it,  however.  Those  who 
live  in  business  neighborhoods  cannot  expect  or 
demand  the  quiet  of  the  suburbs. 

As  the  neighborhood  changes  they  must  take 
the  consequences.  If  it  changes  for  the  worse 
and  personal  discomfort  follows,  that  must  be 
Kiibmitted  to.  The  running  of  street  cars  and 
the  noiKe  of  the  automobiles  all  night  long  are 
amonf?  the  few  annoyances  that  all  sections  of 
the  city  are  now  subjected  to,  but  would  some 
years  ago  have  been  considered  a  nuisance.  Ap- 
plying the  principle  that  an  injunction  should 
not  issue  in  doubtful  cases,  I  would  not  issue 
one  here. 

There  remains  only  the  other  question,  viz.: 
Can  the  bill  prevail  because  of  the  noise  in  the 
street  after  the  entertainments  are  dismissed? 
.\s  I  have  found  that  the  defendants'  entertain- 
ments bring  together  an  assemblage  of  respecta- 
ble, well-behaved  people,  and  that  the  noises  in 
the  street  are  not  of  a  kind  that  are  induced 
by  or  encouraged  by  the  defendants'  parties,  I 
see  no  reason  for  a  court  of  equity  to  act.  This 
is  a  matter  for  the  police  to  see  to.  We  would 
not  hesitate  to  enjoin  the  gathering  of  disorderly, 
dissolute,  drunken,  or  depraved  persons,  whose 
coming  together  must  necessarily  annoy  the  resi- 
dents of  nearby  houses,  but  the  saying  of  part- 
ing words  by  respectable  people  and  the  calling 
to  friends  as  they  leave  the  hall  is  a  matter  for 
the  police  to  regulate,  rather  than  for  a  court 
to  dispose  of  by  injunction. 

The  court  dismissed  tbe  bllL  Plaintiffs  ap- 
[)ealed.  Error  assigned,  Inter  alia,  was  the 
decree  of  the  court. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
AUT,  MOSCHZISKEB,  FRAZER,  and  WAL- 
LING, JJ. 


Ormond  Rambo  and  Frank  H.  Warner, 
both  of  Philadelphia,  for  appellants.  J.  H. 
Shoemaker,  of  Philadelphia,  for  ai^)ellees. 

PER  CURIAM.  This  bill  was  filed  to  en- 
join dancing  and  music  In  a  certain  hall  In 
the  dty  of  Philadelphia.  That  It  was  prop- 
erly dismissed  appears  by  the  facts  found 
and  legal  conclusions  reached  by  the  learned 
president  Judge  of  the  court  below,  and,  on 
them,  the  decree  Is  afSrmed  at  the  costs  of 
appellants. 

(257  Pa.  IBW 
COMMaNWHAI/TH   ex   reL   BROWN,   Atty. 
Gen.,  V.  SCHWARTZ. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

Quo  WaKBAWTO  «=5>60-Jin>OM«HT  0»  OUSTKB 
— JUSTICK  or  THE  PKAOE. 

A  judgment  of  ouster  in  qno  warranto  pro- 
ceedings to  test  the  right  of  a  justice  of  the 
peace  to  hold  office  in  a  borough  was  properly 
entered,  where  it  appeared  that  respondent  had 
been  defeated  at  an  election  under  which  he 
claimed  his  right  to  the  office. 

[Ed.  Note^— For  other  cases,  see  Quo  War- 
ranto. Cent.  Dig.  {  71.] 

Appeal  from  Court  of  Common  Pleas,  Lack- 
awanna County. 

Quo  warranto  by  the  Commonwealth,  on 
ralation  of  Francis  Shunk  Brawn,  Attorney 
General,  against  Frank  Berger  and  Phillip 
Schwartz,  to  test  the  right  of  the  last  defend- 
ant to  act  as  Justice  of  the  peace  of  the 
borough  of  Old  Forge.  Judgment  for  defend- 
ant Berger,  and  writ  dismissed  as  to  him, 
and  Judgment  of  ouster  against  defendant 
Schwartz,  and  he  appeals.    Affirmed. 

It  appears  by  the  record  that  an  election  to 
flu  vacancies  In  the  office  of  Justice  of  the 
peace  of  Old  Forge  borough  was  held  in 
November,  1915,  at  which  time  the  following 
candidates  received  the  number  of  votes  set 
out  after  their  names:  E.  J.  Garvin,  819 
votes ;  Frank  Berger,  808  votes ;  Fred  Roon- 
ey,  806  votes;  J.  J.  Chelland,  C91  votes; 
Phillip  Schwartz,  641  votes.  It  appeared  also 
that  commissions  were  thereafter  issued  to 
Frank  Berger  and  Phillip  Schwartz  as  Jus- 
tices of  the  peace.  When  the  case  came  to 
trial  it  was  agreed  that  it  should  be  heard  by 
the  court  without  a  Jury,  and  after  such  hear- 
ing the  court  found  the  following  facts  and 
conclusions  of  law: 

Pacts. 

(1)  The  territory  constituting  the  boroagh 
of  Old  Forge,  before  the  incorporation  of  (he 
borough,  had  two  justices  of  the  peace. 

(2)  The  borough  was  incorporated  on  May  2, 
1899. 

(3)  An  attempt  was  made  at  the  February 
election  of  1899  to  secure  a  vote  for  an  increase 
of  two  justices  in  the  township  of  Old  Forge. 
Notices  were  posted  as  required  by  the  act  of 
assembly,  and  there  was  a  vote  actually  taken 
on  the  question  of  increase.  There  was  no  re- 
turn of  the  vote  made  to  the  office  of  the  clerk 


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101  ATIiANTIO  REPORTER 


(I'a. 


of  the  court,  nor  the  executive  department  of 
Harrisburg.  Nor  ia  there  any  evidence  what- 
ever in  this  case  as  to  whether  the  vote  was  in 
favor  or  against  an  increase.  The  election  of 
1899  has  no  place  in  the  consideration  of  the 
present  controversy. 

(4)  Another  election  was  held  in  the  borouKb 
of  Old  Forge  in  1905,  at  which  the  question  of 
increase  in  the  number  of  justices  was  voted 
upon.  The  public  notices  posted  before  the 
election  specified  an  increase  of  three  justices, 
but  the  return  of  the  vote  on  file  in  the  clerk's 
ofllce  shows  an  increase  of  one  only.  Counsel 
have  agreed  that  the  tabulation  prepared  by 
the  clerk  is  a  correct  copy  of  the  returns  in  his 
office.    The  tabulation  is  as  follows: 

For  Increase.  Against  Increase. 
23       64 


Ist  Ward  . 
2d   Ward  , 
3d    Ward  . 
4th  Ward 
oth  Ward 
6th  Ward  . 


-  2 
....       76         5  For  one  Justice 
....         9         0  Increase  one 
0         0 

This  shows  that  the  total  vote  in  the  borongh 
against  the  increase  was  71;  there  were  23  votes 
for  increase  without  designation  of  any  number, 
and  there  were  S4  votes  in  favor  of  an  increase 
of  one. 

Conclusions  of  Law. 

1.  Old  Forge  township  previous  to  its  incor- 
poration was  entitled  to  two  justices  of  the 
peace. 

Counsel  for  all  parties  conceded  this  propo- 
sition. 

2.  There  was  not,  in  law,  an  increase  in  the 
number  of  justices  in  Old  Forge  township  by 
the  election  of  1899.  There  has  been  some  mis- 
apprehension as  to  the  election  of  1S99.  Coun- 
sel have  tried  this  case  on  the  supposition  that 
the  election  was  a  borough  election,  although, 
as  already  stated,  there  was  no  borough  until 
the  May  following.  However,  this  is  of  no  mo- 
ment. The  election  was  undoubtedly  a  town- 
ship election,  and  a  township,  as  such,  had  the 
right  to  vote  an  increase  in  die  number  of  jus- 
tices. The  same  misapprehension  is  to  be  no- 
ticed in  the  opinion  of  the  deputy  attorney  gen- 
eral found  in  the  case  of  the  Old  Forge  Justices, 
30  Pa.  C.  C.  164,  who  supposed  the  election  of 
1899  was  a  borough  election,  and,  basing  his 
opinion  on  an  aOidavit,  he  states  that  there  was 
an  increase  of  one  justice  at  that  election  in  Old 
Forge  in  1899.  We  have  no  doubt  that  if  the 
evidence  before  us  was  before  the  Deputy  Attor- 
ney General  he  would  not  have  advised  the  Gov- 
ernor in  1904  to  make  an  appointment  of  one 
person  to  fill  the  vacancy  untU  May,  1906. 

3.  The  number  of  justices  of  the  peace  in  Old 
Forge  borough  was  lawfully  increased  by  one 
at  the  election  in  1005.  This  proposition  is  so 
plain  that  it  needs  no  discussion. 

4.  Old  Forge  borough,  prior  to  the  election  of 
1005,  was  entitled  to  two  justices  of  the  peace. 
After  said  election  it  is  entitled  to  three. 

6.  Two  vacancies  for  the  office  of  justice  of 
the  peace  were  to  be  filled  at  the  November  elec- 
tion, 1915.  E.  J.  Garvin  and  Frank  Berger 
having  received  the  majority  of  votes  in  the  bor- 
ongh at  said  election  for  said  office,  are  enti- 
tled thereto,  having  been  lawfully  elected.  We 
note  in  this  connection,  that  the  right  of  E.  J. 
Garvin  to  office  is  not  in  question  in  this  case. 

6.  The  respondent,  Phillip  Schwartz,  failed 
of  election  in  1915,  and  is  therefore  not  entitled 
to  the  office  of  justice  of  the  peace  of  Old  Forge 
borough. 

Subsequently  exceptions  to  tbe  findings  of 
fact  and  conclusions  of  law  .were  dismissed, 
and  Judgment  was  entered  In  favor  of  the  de- 
fendant Frank  Berger,  and  the  writ  dismissed 


as  to  Mm,  and  as  to  the  defendant  Phillip 
Schwartz  Judgment  was  entered  in  favor  of 
the  relator,  that  the  said  defendant  be  ousted 
and  altogether  excluded  from  tbe  office  of 
Justice  of  the  peace  of  Old  Forge  borough. 
Phillip  Schwartz,  defendant,  appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAL- 
LING, JJ. 

A.  A.  Vosburg  and  John  Memolo,  both  of 
Scranton,  for  appellant  John  H.  Bonner,  of 
Scrauton,  for  appellee. 

PER  CURIAM.  This  case  was  tried  with- 
out a  Jury,  and  the  Judgment  of  ouster 
against  appellant  Is  affirmed  on  the  facts 
found  and  the  l^al  conclusions  readied  by 
the  learned  trial  Judge. 

"■  (JBI  Pa.  48) 

MAGUIRB  T.  PREFERRED  REALTY  CO. 

(Supreme  Court  of  Pennsylvania.    March  6, 
1917.) 

1.  ACKROWUBDOHXRT     9=35— DeED»— NECKSBI- 

TY  AS  Betwken  Pabtikb. 
A  deed  executed  and  delivered  is  sufficient  to 
pass  title  between  the  parties,  though  not  ac- 
knowledged. 

[Ed.  Note.— For  other  cases,  see  Acknowledg- 
ment, Cent.  Dig.  K  22-42,  44.] 

2.  Pleadino  «=>8(15)— Fraud— Au-egations. 

Where  a  declaration  in  ejectment  contains 
no  allegations  of  fact  showing  fraud,  an  amend- 
ment must,  in  the  same  degree  of  certainty,  de- 
tail the  circumstances  pointing  to  that  conclu- 
sion. 

[Ed.  Note.— For  other  cases,  see  Pleading; 
Cent  Dig.  |  2S^.] 

8.  E.rECTMKNT  «=>75— Statembnt  o»  Claim— 

Demurkeb. 
A  statement  of  claim  in  ejectment  averred 
that  plaintiff  conveyed  tbe  realty  to  defendant 
in  consideration  of  its  agreement  to  give  plain- 
tiff certain  shares  of  stock,  and  that  after  the 
conveyance  defendant  bad  refused  to  deliver  any 
stock  to  plaintiff  so  that  the  consideration  of  the 
conveyance  bad  failed,  but  did  not  allege  the  facts 
indicating  fraud  in  securing  the  deed.  Htld  that 
ejectment  was  not  the  proper  remedy,  so  that  a 
demurrer  to  the  statement  of  claim  was  properly 
sustained  without  prejudice  to  plaintiff's  right 
to  assert 'the  claim  In  some  other  proceeding. 

[Ed.  Note.— For  other  cases,  see  Ejectment, 
Cent  Dig.  {  204.] 

Appeal  from  Court  of  Couunon  Pleas,  Phil- 
adelphia County. 

Ejectment  by  Mary  Magulre  against  the 
Preferred  Realty  Company  for  recovery  of 
land  situate  In  the  dty  of  Philadelphia.  De- 
murrer to  plaintiff's  statement  of  claim  sus- 
tained. Judgment  for  defendant,  and  plain- 
tiff appeals.    Affirmed. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

Alex.  Simpson, .  Jr.,  of  Philadelphia,  for 
appellant  Graham  C.  Woodward  and  Sam- 
uel F.  Wheeler,  both  of  Philadelphia,  for  ap- 
pellee. 


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MAGUIRE  V.  PREFERRED  REALTY  CO. 


101 


MOSCHZISKEB,  J.  This  action  was  in 
ejectment;  a  declaration  and  abstract  of 
title  were  filed,  to  which  a  demurrer  was 
altered;  the  judgment  favored  defendant, 
and  pladntlff  has  ai^>ealed.  In  the  course 
of  his  opinion.  Judge  Ferguson,  of  the  court 
below,  states  the  material  facts  thus: 

"The  plaintiff  avers  that  she  signed  a  deed 
conveTing  the  premises  in  qaestion  to  the  de- 
fendant [corporation],  but  that  she  did  not  ac- 
knowledge the  deed  in  the  presence  of  the  no- 
tary public  who  certified  that  she  had  done  so. 
She  also  avers  that  the  deed  was  signed  in  th<; 
presence  and  at  the  request  of  Samuel  F.  Wheel' 
er,  'who  was  her  attorney,'  and  who  the  plain' 
tiS  believed  was  the  sole  manager  and  counsel 
and  owner  of  all  the  capital  stock  of  the  de- 
fendant corporation ;  and  that  the  consideration 
for  the  deed  was  a  verbal  agreement  made  by 
the  defendant,  through  Wheeler,  that  all  the  de- 
fendant's corporate  stock  should  be  transferred 
and  delivered  to  her  as  security  for  money  due 
her  for  advances  made  to  Wheeler  and  his  wife 
and  for  money  expended  in  connection  with 
the  sheriFs  sale  under  which  plaintiff  obtained 
title.  The  declaration  further  sets  out  that  the 
deed  was  recorded  without  plaintiff's  knowledge 
or  consent,  and  the  defendant,  through  Wheeler, 
refused  to  surrender  the  stock  [and  that  "the 
consideration  for  said  conveyance  wholly  fail- 
ed"]." 

[1]  After  the  foregoing  review  of  the  facts 
stated  in  the  declaration  demurred  to,  the 
opinion  goes  on  to  say: 

"It  will  be  observed  that  the  plaintiff  fails 
to  aver  anything  with  relation  to  the  delivery  of 
the  deed;  in  fact,  a  delivery  is  necessarily  im- 
plied from  the  averment  that  there  was  a  con- 
sideration which  failed.  The  plaintiff  nowhere 
alleges  that  she  demanded  a  return  of  the  deed. 
What  she  seeks  is  a  delivery  of  the  stock  of  the 
defendant  corporation,  to  be  held  by  her  as  se- 
curity. It  is  also  to  be  noted  that  the  plain- 
tiff does  not  aver  that  the  defendant  company, 
to  whom  she  made  the  deedj  held  the  stock  or 
was  in  a  position  to  deliver  it  as  the  considera- 
tion, but  the  stock  is  alleged  to  be  owned  by 
Wheeler,  who  refuses  to  deliver  it  A  deed  does 
not  necessarily  have  to  be  acknowledged  before 
a  notary  pubUc  to  make  it  a  valid  instrument 
between  parties.  Rigler  v.  Cloud,  14  Pa.  361; 
Cable  V.  Cable,  146  Pa.  451,  23  Aa  223.  Exe- 
cntion  and  delivery  are  sufficient  to  pass  the 
title,  and  there  is  no  averment  in  the  declara- 
tion from  which  it  could  be  inferred  that  the 
deed  was  not  delivered." 

Then,  after  citing  several  authorities,  the 
court  below  determined  that,  on  the  face  of 
the  plaintiff's  pleading,  the  suit  was  merely 
an  effort  to  enforce  "a  verbal  agreement, 
made  by  one  not  a  party  to  the  deed,  that 
all  the  capital  stock  of  the  defendant  com- 
pany should  be  transferred  and  delivered  to 
the  plaintiff  as  security,"  which  "agreement 
cannot  be  enforced  by  an  action  in  eject- 
ment." 

The  plaintiff  contends  that  the  learned  court 
below  misconceived  the  real  purpose  of  her 
suit,  and  that  the  very  form  of  the  action — 
ejectment — shows  It  was  to  recover  the  land 
and  not  to  gain  the  consideration ;  but,  even 
looking  at  the  case  from  that  viewpoint,  it  is 
not  at  all  apparent  material  error  was  com- 
mitted in  Altering  the  Judgment  under  re- 
view. In  ber  first  declaration,  the  plaintiff 
simply  avened: 


"On  January  17,  1916,  plaintiff  conveyed  said 
premises  to  the  Preferred  Realty  Company,  the 
defendant,  by  deed  of  that  date,  recorded,  etc. 
•  •  •  Said  conveyance  was  made  in  consider- 
ation of  an  agreement  by  defendant,  through  its 
president,  to  give  plaintiff  stock  of  defendant 
in  payment  therefor-  but,  since  said  convey- 
ance was  made,  defendant,  through  its  president, 
has  refused  to  give  to  plaintiff  any  of  the  stock 
of  defendant  •  •  •  Wherefore  the  consider- 
ation for  said  conveyance  has  wholly  failed," 
etc. 

Subsequently  an  "amended  declaration  and 
abstract  of  title"  were  filed,  containing  the 
averments  already  outlined,  and  the  appel- 
lant contends  that  these  new  averments  are 
sufficient  to  show  such  a  case  of  fraud  as 
entirely  to  avoid  plaintUfs  deed  of  convey- 
ance and  leave  the  property  in  her  as  though 
that  instrument  had  never  been  executed. 
If  this  were  so,  then  it  might  be  that  the 
plaintiff  could  maintain  ejectment;  but,  be- 
ing on  demurrer,  the  Judgment  must  stand 
or  fall  up<m  a  review  of  the  declaration  as 
written,  and  not  on  the  facts  of  the  case  as 
they  are  contended  to  be  in  appellant's  argu- 
ment. 

[2]  The  original  declaration  contains  no  al- 
legations of  fact  indicating  fraud,  and  the 
averments  in  the  amendment,  while,  perhaps, 
suggesting  the  possiUUty  of  some  fraudu- 
lent purpose  on  the  part  of  Mr.  Wheeler, 
when  he  secured  the  deed  from  the  plaintiff, 
do  not  so  charge  in  terms.  "E^ud  is  never 
to  be  presumed."  Addleman  v.  Manufac- 
turers' Light  &  Heat  Co.,  242  Pa.  587,  690, 
89  Atl.  674,  675.  WhMi  there  is  no  particu- 
lar averment  of  a  fraudulent  purpose,  but 
the  circumstances  detailed  are  depended  up- 
on as  showing  such  to  be  the  case,  then  the 
facts  relied  upon  must  not  only  be  fully  and 
unequivocally  avferred,  but  they  must  point 
with  some  degree  of  certainty  to  the  conclu- 
sion contended  for;  and  in  such  cases  the 
intendments  are  taken  most  strongly  against 
the  pleader,  for  he  is  presumed  to  have  stat- 
ed all  the  facts  Involved,  and  to  have  done  so 
as  favorably  to  himself  as  his  conscience 
will  permit  Baker  v.  Tustln,  245  Pa.  499, 
501,  91  Atl.  891;  LltUe  v.  Thropp,  245  Pa. 
539,  644,  91  Aa  924. 

[3]  Here,  as  already  suggested,  the  facts 
detailed  In  plaintiff's  declarations  do  not, 
with  any  degree  of  certainty,  lead  the  mind 
to  the  conclusion  that.  If  they  should  be 
proved,  a  Jury  would  be  JusMfled  In  finding 
the  deed,  under  which  the  defendant  claims, 
to  have  been  fraudulently  obtained  by  it 
We  say  this,  for  the  averments  of  the  dec- 
laration are  vague  and  inconclusive  in  many 
material  respects.  In  the  first  place,  it  is 
not  averred  that  Mr.  Wheeler  was  plaintlfTs 
counsel  or  attorney  at  the  time  the  deed  was 
executed  by  her,  or  that  he  acted  in  such 
capacity  in  this'  particular  transacticAi ;  next, 
there  is  no  allegation  that  he  was  duly  au- 
thorized or  actually  did  act  on  behalf  of  the 
defendant  company  in  making  the  alleged 
verbal  agreement  with  the  plaintiff;  and, 
finally,  the  averment  that  Wheeler  was  the 


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101  ATLANTIC  REPOETEE 


(Pa. 


owner  of  all  the  corporate  stock  of  the  de- 
fendant except  a  few  shares,  Is  too  Indef- 
inite to  substitute  him  In  all  respects  for  the 
latter,  there  being  no  allegation  that  he  was 
the  sole  owner.  In  possession  of  the  stock, 
or  In  control  of  the  corporation,  at  the  time 
of  the  occurrences  complained  of.  The  fore- 
Koins  are  only  a  few  of  many  Insufficiencies 
which.  If  necessary,  might  be  pointed  out; 
bat  they  are  enough  to  show  the  inadequacy 
of  the  declaration.  We  feel,  however,  the 
plalntirr  should  be  placed  in  such  position 
that  the  present  Judgment  will  not  be  taken 
as  precluding  her  from  properly  asserting 
her  alleged  rights  in  some  other  action  or 
proceeding  where  both  the  realty  company 
and  Mr.  Wheeler  are  Included  as  defendants. 
The  assignments  of  error  are  orerruled, 
and  the  Judgment  is  affirmed,  without  prej- 
udice, as  above  indicated. 


(257  Pa.  8) 

ALLEN  T.  SCHEIB  et  aL 

(Supreme  C!ourt  of  Pennsylvania.    March  6, 
1»17.) 

1.  Easbmbwts  «=»61— Use— Extent. 

An  easement  cannot  lawfully  be  used  for  a 
purpose  different  from  that  for  which  it  was 
dedicated. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  a  100-112.] 

2.  Easements   <8=»12(2)— Pkb— "Road"— "Pbi- 
VATE  Road." 

Tile  term  "road,"  and  especially  "private 
road,"  is  indicative  of  an  easement  rather  than 
a  fee. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent.  Dig.  U  36-38. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Ro(^d ;   Private  Road.] 

3.  Easements  «=»C1(0)— Action  fob  Injunc- 
tion—Burden  OF  Proof. 

The  burden  was  upon  plaintiff  to  establish 
her  ownership  to  the  fee  of  the  land,  included  in 
a  private  road  in  which  defendants  had  a  user, 
before  Bhe  was  entitled  to  construct  a  gas  pipe 
line  on  the  surface. 

[Ed.  Note.— lOor  other  cases,  see  Easements, 
Cent.  Dig.  g  143.] 

4.  Easements  <g=>Cl(0)— Action  fob  Injunc- 
tion— ^Iktehest^-Evidence. 

Evidence  in  a  suit  by  the  owner  of  a  farm 
to  enjoin  defendants  from  obstructing  a  private 
way  giving  access  to  a  public  road  held  to  show 
that  pluiutiff  did  not  have  the  fee  in  the  road, 
but  had  only  an  oasemcut  of  way. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  $  143.] 

5.  Easements  <S=>51— Wat— Use. 

The  owner  of  an  easement  in  a  private  right 
of  way,  in  which  defendants  also  bad  a  right 
of  use,  was  not  entitled  to  maintain  a  line  of 
gas  pipe  on  the  surface,  as  that  was  not  con- 
templated when  the  easement  of  way  was  cre- 
ated. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent.  Dig.  iS  100-112.] 

6.  Injunction  ig=»130— Objection  to  Jubis- 
DicTioN— Statute. 

Though  defendant's  first  objection  to  the  ju- 
risdiction of  equity,  to  enjoin  interference  with 


easement  made  in  request  for  findings  after  the 
evidence  was  sulxnittod  was  not  in  compliance 
with  Act  June  7,  1907  (P.  L.  440)  |  1,  it  did 
not  affect  the  chancellor  s  duty  to  dismiss  the 
bill  if  the  facts  averred  were  not  substantially 
proved  at  the  trial 

[Ed.  Note.— For  other  cases,  see  Injunction, 
Cent  Dig.  §$  288-300.] 

Appeal  from  0>art  of  (Common  Pleas,  Al- 
legheny County. 

Bill  In  equity  for  an  injunction  by  Eleanor 
Walker  Allen  against  John  Schelb,  St.,  and 
another.  From  a  decree  awarding  an  in- 
junction, defendants  appeal  Modified  and 
affirmed. 

Argued  before  BROWN,  C  J.,  and  POT- 
TER, MOSCHZISKER,  FRAZBR,  and  WAL- 
LING,  JJ. 

B.  J.  McKenna,  of  Pittsburgh,  for  appel- 
lants. J.  W.  (Jolllns,  of  Pittsburgh,  for  ap- 
pellee. 

WALLING,  J.  This  equitable  action  Is  to 
determine  the  rights  of  the  respective  parties 
to  a  certain  strip  of  land  situate  In  Richland 
township,  Allegheny  county,  and  used  as  a 
private  road.  The  Butler  plank  road  extends 
through  said  township  In  a  northerly  direc- 
tion, and  the  farm  of  the  late  John  Scott, 
containing  142  acres,  is  located  thereon.  He 
died  in  1875,  and  clause  4  of  his  will  pro- 
vides: 

"I  give  and  devise  to  my  grandson,  John  Scott 
Teacher,  15  acres  of  my  Balserstown  farm;  to 
my  daughter,  Catherine  Harbison,  10  acres; 
to  my  granddaughter,  Sarah  Harbison,  5  acres; 
to  my  daughter  Jaje  Harbison,  10  acres,  all  to 
be  divided  out  of  my  Bakerstown  farm  west  of 
the  planlc  road." 

He  left  other  heirs  and  devisees  aside  from 
those  above  mentioned ;  and,  by  some  family 
arrangement  made  shortly  after  his  death, 
the  40  acres  mentioned  in  the  clause  was  set 
aside  to  the  devisees  therein  named  out  of 
the  northwest  corner  of  the  farm,  away  from 
the  public  highway.  To  afford  access  to  the 
40-acre  tract  it  seems  to  have  been  a  part 
of  the  agreement  that  a  private  road  or  lane, 
of  the  .width  of  16%  feet,  should  be  <H>ened, 
extending  eastwardly  from  the  southeast 
comer  of  the  40-acre  tract,  about  1,295  feet, 
to  the  Butler  plank  road,  which  lane  was 
later  fenced  and  opened,  and  has  been  used 
for  about  20  years  last  past  by  the  occupants 
of  the  40  acres,  the  same  having  been  par- 
titioned in  1876,  among  the  devisees  above 
named.  This  is  shown  by  a  map  made  that 
year  by  Charles  Gibson,  at  the  instance  of 
one  of  the  devisees.  The  purparts  thereby  al- 
lotted were  sold  from  time  to  time,  and  the 
deeds  therefor  include  fractional  parts  of  the 
lane,  corresponding  to  the  size  of  the  respec- 
tive pun>art8,  for  example,  each  deed  for  15 
acres  includes  three-eighths  of  the  lane.  In 
1001  the  title  to  the  40-acre  tract,  together 
with  whatever  Interest  the  owners  thereof 
had  in  the  lane,  became  vested  in  John  Scott 
Harbison,  who  conveyed  same  to  plaintiff  in 


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103 


1911.  The  lane  was  also  used  by  the  owners 
of  the  balance  of  the  John  Scott  farm,  as 
their  necessities  required. 

So  far  as  appears  the  family  arrangement 
above  stated  was  not  In  .writing,  and  there 
Is  no  record  of  any  conveyance  from  the  John 
Scott  heirs  to  plaintiff's  predecessors  for  the 
40  acres  or  the  lane.  Plaintiff  contHids  that 
the  lane  was  included  in  the  40  acres.  There 
is  a  part  of  the  John  Scott  farm  containing 
about  33  acres,  some  24  acres  of  which  He  be- 
tween the  40  acres  and  the  Butler  plank  road 
and  north  of  the  lane,  as  to  which  he  seems 
to  have  died  intestate.  In  1881,  all  of  the 
heirs  of  John  Scott  Joined  in  a  conveyance 
of  the  24-acre  tract  to  James  D.  Harbison, 
wherein  the  southern  boundary  is  describ- 
ed  as: 

"Thence  along  a  certain  road  or  lane  between 
the  land  herein  conveyed  and  tlie  land  of  John 
Stirling." 

Another  part  of  the  Scott  farm,  containing 
about  30  acres,  and  called  the  Stirling  tract, 
is  on  the  west  side  of  the  plank  road  and 
bounded  on  the  north  by  the  40-acre  tract 
and  the  lane. 

By  sundry  conveyances  the  title  to  the  24- 
acre  and  the  30-acre  tracts  became  vested 
in  Thomas  Morrow,  who  in  1910  conveyed 
same  with  other  land  to  defendant,  John 
Scheib,  Sr.,  the  deed  for  which  In  one  of  the 
courses  mentioned,  "a  point  at  the  comer 
of  a  private  road,"  and  the  general  descrip- 
tion therein  Includes  the  lane  and  the  land  on 
both  sides  thereof.  After  Mr.  Schelb  bought 
this  land  there  was  a  controversy  about  the 
use  of  the  lane,  between  Mr.  Harbison  and 
plaintiff  on  one  aide,  and  the  defendants, 
"John  Scheib,  Sr.,  and  John  O.  Scheib,  on 
the  other,  each  side  claiming  to  own  the  same. 
One  of  the  findings  of  the  court  below  is : 

"Sixth.  That  said  John  Scheib,  Sr.,  by  de- 
stroying drains  along  said  private  road,  taking 
out  posts  and  trees  planted  by  plaintiff  and  by 
other  acta  lins  repeatedly  interfered  with  plain- 
tiff in  the  use  of  said  private  road." 

The  defendants,  or  those  in  their  employ, 
also  drove  their  stock  across  this  lane,  and 
in  so  doing  obstructed  It  with  wires,  and  re- 
peatedly suffered  the  same  to  remain  in  that 
condition,  to  the  annoyance  and  damage  of 
plaintiff. 

In  1913,  plaintiff  entered  into  a  contract 
with  one  Sebastian  Mueller,  for  the  constmc- 
tl<Hi  and  maintenance  of  a  line  of  gas  pipe  in 
the  lane,  which  defendants  by  opposition  and 
threats  prevented  being  done;  Thereafter 
plaintiff  filed  her  bill  in  this  case,  joining 
said  Mueller  as  a  defendant,  but  the  bill  as 
to  him  was  dismissed.  The  learned  trial 
Judge,  sitting  as  a  chancellor,  found  that 
plaintiff  had  a  good  title  In  fee  simple  to  the 
strip  of  land  herein  called  the  lane,  and 
entered  a  final  decree,  inter  alia,  enjoining 
defendants  from  interfering  with  the  con- 
struction of  the  gas  line,  and  also  from  in- 
terfering with  plaintiff's  free  use  and  main- 


tenance of  the  private  road.  Defendants  con- 
cede that  plaintiff  has  a  right  to  the  use  of 
the  lane  as  a  passageway ;  in  fdct  that  is  the 
only  means  of  access  to  her  property.  We 
folly  agree  with  the  learned  chancellor  that 
nnder  all  the  facts  and  circumstances  defend- 
ants should  be  enjoined  from  Interfering  with 
plalntlfTs  free  use  and  enjoyment  of  the  said 
private  road  as  such. 

But  plaintiff's  right  to  lay  or  authorize 
another  to  lay  a  line  of  gas  pipe  therein  de- 
pends upon  the  nature  of  her  ownership.  If 
an  easement,  then  she  can  use  it  only  for  the 
purpose  for  which  It  was  established  or  dedi- 
cated, and  cannot  lay  a  pipe  line  therein. 
U.  S.  Pipe  Line  Co.  &  Breckenridge  v.  Del., 
Lack.  &  Western  R.  R.  Co.,  62  N.  J.  Law,  254, 
41  Atl.  759,  42  L.  R.  A  672;  14  Cyc.  1207, 
note  98. 

[1]  As  an  easement  it  cannot  lawfully  be 
used  for  a  purpose  different  from  that  for 
which  it  was  dedicated.  Klrkham  v.  Sharp, 
1  Whart  323,  29  Am.  (Dec.  67;  Mershon  v. 
Fidelity  Ins.,  Trust  &  Safe  Deposit  Co.,  208 
Pa.  292,  67  Att.  6C9;  14  Cyc.  1215. 

[2-5]  As  above  stated  the  chancellor  finds 
that  plaintiff  owns  the  fee.  If  so,  she  may. 
of  course,  constnict  the  gas  line  therein ;  but 
a  careful  examination  of  the  record  falls  to 
disclose  any  sufficient  evidence  to  support 
that  conclusion.  As  above  stated,  there  is 
no  deed  or  other  writing  showing  any  con- 
veyance by  the  Scott  heirs  of  the  so-called 
private  road.  True,  the  road  Is  recognized 
in  their  deed  to  James  D.  Harbison  as  above 
quoted,  "thence  along  a  certain  road  or  lane 
between  the  land  herein  conveyed  and  the 
land  of  John  Stirling";  but  that  does  not 
show  that  the  title  to  the  fee  thereof  has 
pas.sed  from  the  Scott  heirs.  The  term 
"road,"  and  especially  "private  road,"  is  In- 
dicative of  an  easement  rather  than  a  fee. 
See  Klster  v.  Recser,  98  Pa.  1,  42  Am.  Rep. 
608.  Plaintiff  relies  largely  on  the  evidence 
of  her  grantor,  John  S.  Harbison,  as  tending 
to  establish  a  parol  partition  of  the  Scott 
farm  made  in  1876,  by  which  this  lane  Is  al- 
leged to  have  been  allotted  to  the  o;wners  of 
the  40-acre  tract,  and  as  a  part  thereof.  But 
he  does  not  say  that  all  of  the  Scott  heirs 
were  present,  and  shows  they  were  not  when 
he  names  those  who  were  there.  The  chan- 
cellor in  one  part  of  his  exhaustive  discus- 
sion says: 

"Respecting  plaintiff's  light  to  the  uninter- 
rupted use  of  tne  road  there  is  no  room  for  dis- 
pute. Respecting  the  precise  limits  of  her 
rights,  whether  she  has  a  fee  or  a  mere  ease- 
ment, is  a  debatable  question.  •  *  *  Wheth- 
er Mr.  Scheib  has  the  fee  in  the  16%-foot  strip 
of  land  or  the  mere  right  to  use  it  in  common 
with  the  plaintiff,  or  any  right  in  it,  he  has  no 
right  to  fill  up  necessary  drains,  or  otherwise 
prevent  the  free  use  and  proper  maintenance  of 
the  road,  and  plaintiff  is  entitle<l  to  an  injunc- 
tion restraining  him  from  Interfering  with  her 
in  the  exercise  of  her  lawful  rights. 

The  John  Scott  heirs,  aside  from  those 
named  in  clause  4  of  the  will,  were  not  par- 


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101  A.TLANTIO  KErORTBB 


(ELI. 


ties  to  the  partition  of  the  40-acre  tract,  nor 
to  the  Gibson  surrey,  nor,  so  far  as  the  rec- 
ord shows,  bound  thereby.  And  certainly 
they  were  not  bound  by  the  recitals  in  the 
deeds  from  the  owners  of  the  respective  pur- 
parts of  the  40-acre  tract  One  cannot  create 
a  fee  in  land  merely  by  including  it  in  his 
conveyance.  And  the  above-cited  reference 
to  this  road  or  lane  in  the  deed  from  the 
Scott  heirs  to  James  D.  Harbison,  and  also 
in  the  deed  from  Morrow  to  defendant,  arc 
certainly  as  consistent  with  an  easement  as 
with  a  fee.  The  mere  reference  in  a  con- 
veyance to  a  private  road  does  not  tend  to 
show  ownership  in  fee  thereof  in  the  party 
for  whose  use  it  may  have  been  established. 
Such  road,  or  alley,  may,  prima  facie,  be 
used  by  all  abutting  owners,  and  defendants 
as  such  would  have  standing  to  object  to  au 
additional  use  being  made  thereof  by  the  con- 
struction therein  of  a  gas  line,  especially  as 
this  is  proposed  to  be  constructed  on  the  sur- 
face of  the  groimd. 

Plaintiff  as  the  owner  of  the  40-acre  tract 
undoubtedly  has  an  easement  in  the  private 
road  and  a  right  to  the  free  and  uninterrupt- 
ed use  thereof  as  a  way  for  purposes  of  pas- 
sage over  and  upon  the  same;  and,  so  far 
as  appears,  defendants  may  lawfully  make 
such  use  thereof  as  will  not  Interfere  with 
the  rights  of  plaintiff. 

The  burden  was  upon  plaintiff  to  establish 
her  ownership  to  the  fee  of  the  land  included 
in  the  road,  and  therein  her  proofs  fail,  and 
the  flnding  of  the  court  below  in  her  favor  as 
to  that  cannot  be  sustained;  nor  can  the  de- 
cree in  so  far  as  It  restrains  defendants  from 
interfering  to  prevent  plaintiff  from  the  con- 
struction of  a  gas  line  in  the  road. 

[8]  The  defendants,  John  Scheib,  Sr.,  and 
.Tohn  6.  Scheib,  did  not,  by  demurrer  or  an- 
swer, question  the  Jurisdiction  of  the  court, 
upon  the  ground  that  the  suit  should  have 
been  brought  at  law,  but  filed  an  answer  to 
the  merits  of  the  case  without  asking  for  an 
Issue  as  to  any  questions  of  fact,  and  thereby 
the  right  of  trial  by  Jury  seems  to  have  been 
waived,  under  the  provisions  of  section  1,  of 
the  act  of  June  7, 190T  (P.  U  440 ;  5  Purdon's 
Digest,  p.  6001).  The  defendants  first  raised 
the  question  of  Jurisdiction  in  requests  for 
findings  after  the  evidence  was  submitted; 
this  was  not  a  compliance  with  the  statute. 
Nanheim  v.  Smith,  253  Pa.  380,  98  AU.  602. 
However,  the  proviso  to  this  section  is: 

"That  this  shall  not  alter  or  affect  the  duty 
of  the  chancellor  to  dismiss  the  bill  if  the  facts 
therein  averred,  as  showing  or  teudiiig  to  show 
the  right  to  relief,  be  not  substantially  proved 
at  the  trial" 

— and  by  reason  thereof  plaintiff  is  not  en- 
titled to  relief  based  on  her  alleged  owner- 
ship of  the  fee  of  the  land  in  question;  for 
such  claim  is  not  substantially  proven. 

The  final  decree  entered  by  tlie  court  be- 
low is  therefore  modified  by  striking  out  so 
aiuch  thereof  as  restrains  defendants,  Jolin 


Scheib,  Sr.,  and  John  O.  Sdielb,  from  inter- 
ferlng  with  plaintiff  in  the  construction  and 
maintenance  of  a  gas  line  in  or  upon  said 
private  road.  The  costs  on  this  appeal  to  be 
paid  by  the  appellee. 

°^™""  («  R.  I.  «J) 

GAONON  V.  RHODE  ISIiAND  Ca 
(No.  5022.) 

(Supreme    Court   of    Rhode   Island.     July   5, 
1917.) 

1.  TbIAI.     «=9260(1)— R2FDBAI.     or     IROTBUC- 

noNS  Covered. 
The  refusal  of  instructions,  which  in  so  far 
as   they  were   correct  were  covered   by   those 
given,  was  not  error. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  I  651.] 

2.  Damaobs    «=>52  — Pkbsonai.    Irjvbikb— 
Mental  Suffering. 

Mental  suffering  of  a  pregnant  woman  con- 
sequent upon  apprehension  and  anxiety  as  to 
the  effect  of  an  injury  upon  the  fcetui  becomes 
an  element  of  her  damage  as  a  natural  and 
proximate  result  of  the  negligence  which  caused 
the  injury. 

[EVl.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  Sf  100,  255.] 

3.  Damages    9=352  —  PxbsoraIi    Injuries— 

AIeXTAI.   SUFrERINO. 

Although  a  mother  should  not  be  given  dam- 
ages for  her  child's  misfortune  during  life  re- 
sulting from  an  injury  to  the  foetus,  or  for  her 
own  consequent  mental  distress  during  the  life- 
time of  the  child  occasioned  by  its  deformity, 
she  is  entitled  to  damages  for  her  distress  and 
disappointment  at  the  time  of  the  birth  because 
through  defendant's  negligence  she  has  been  de- 
prived of  the  right  and  satisfaction  of  bearing 
a  sound  child,  if  it  be  found  that  the  child's  de- 
formity is  due  to  the  injury  received  through  de- 
fendant's negligence. 

[ICd.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  $$  100,  255.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  (Aunties;  Charles  F. 
Steams,   Judge. 

Action  by  Eleanore  Gagnon  against  the 
Rhode  Island  Company.  Verdict  for  plain- 
tiff, new  trial  denied,  and  defendant  ex- 
cepts. Exceptions  overruled,  and  case  re- 
mitted for  entry  of  Judgment 

Archamlmult  &  Jalbert,  of  Woonsodcet 
for  plaintiff.  Clifford  Whipple  and  Alonzo 
R.  Williams,  both  of  Fro>'idence,  for  defend- 
ant 

PER  CURIAM.  This  is  an  acUon  of  tres- 
pass  on  the  case  brought  to  recover  damages 
for  injuries  alleged  to  have  l)een  suffered  by 
the  plaintiff  through  negligence  of  the  de- 
fendant The  case  was  tried  before  a  Jus- 
tice of  the  superior  court  sitting  with  a  Jury 
and  resulted  in  a  verdict  for  the  plaintiff. 
Defendant's  motion  for  a  new  trial  was  de- 
nied by  said  Justice.  The  case  la  before  us 
uix)n  the  defendant's  exertion  to  the  de- 
cision of  said  Justice  on  the  motion  for  a 
new  trial  and  upon  exceptions  taken  by  the 
defendant  to  certain  rulings  of  said  Justice 
made  in  the  course  of  the  triaL 


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PARIAN  T.  OLSSON 


106 


It  appears  that  the  defendant's  car  track 
on  John  street  near  Pleasant  street  In  the 
city  of  Woonsocket  is  laid  on  the  westerly 
side  of  the  roadway  In  John  street,  the  westr 
erly  rail  of  said  track  being  2  feet  and  10 
Inches  from  the  curbstone  of  the  westerly 
sidewalk  of  John  street.  Near  the  corner  of 
John  and  Pleasant  streets  said  track  begins 
to  curve  toward  the  east  and  runs  Into 
Pleasant  street  In  passing  upon  and  around 
said  curve  the  rear  of  a  double-truck  car  of 
the  defendant  begins  to  overlap  the  wester- 
ly sidewalk  of  John  street  and  continues  to 
so  overlap  the  sidewalk  for  a  considerable 
distance,  the  greatest  overlapping  being  15 
inches  at  one  point  On  the  day  of  the  oc- 
currence complained  of,  the  plaintiff.  In  com- 
pany with  two  other  women,  was  walking 
in  a  southerly  direction  on  the  westerly 
sidewalk  of  John  street;  the  plaintiff  being 
the  one  nearest  to  the  curbstone.  There 
was  testlraony  from  which  the  jury  might 
find  that  the  servants  of  the  defendant  were 
operating  one  of  the  defendant's  double-truck 
cars  on  said  John  street  behind  said  plain- 
tiff; and,  without  warning  or  care  for  the 
safety  of  the  plaintiff,  when  the  danger  to 
the  plaintiff  must  have  been  apparent  to  the 
servants  of  the  defendant,  they  drove  said 
car  around  said  curve,  whereby  the  rear  of 
said  car  projected  over  a  portion  of  the  west- 
erly sidewalk  of  John  street  struck  the 
plaintiff,  knocked  her  down,  and  inflicted 
serious  Injuries  upon  her.  The  justice  pre- 
siding refused  to  disturb  the  verdict  In  re- 
spect to  the  flnding  of  liability  or  the  assess- 
ment of  damages.  After  an  examination  of 
the  transcript  of  evidence,  we  find  no  reason 
for  overruling  his  decision. 

[1]  The  defendant's  exceptions  to  the  re- 
fusal of  said  justice  to  charge  the  jury  as 
requested  are  without  merit.  Said  justice 
carefully  instructed  the  jury  as  to  the  duty 
of  the  plaintiff  and  of  the  defendant  in  the 
premises,  and,  so  far  as  the  charge  which 
the  defendant  requested  was  a  correct  state 
ment  of  the  law  applicable  to  the  evidence, 
such  instruction  had  been  fully  given  by  said 
Justice. 

[2,  3]  The  plaintiff  at  the  time  of  the  ac- 
cident was  pregnant:  she  was  struck  and 
felt  pain  in  bar  back  and  side,  and  she  tes- 
tified that  at  the  time  of  the  accident  "I 
felt  the  child  pushing  toward  the  right" 
The  plaintiff  further  testified  that  from  the 
time  of  the  accident  until  the  birth  of  the 
child  she  entertained  fears  that  the  child 
would  be  bom  deformed.  The  defendant  ex- 
cepted to  the  admission  of  te8tim(Hiy  that 
the  head  of  the  child  was  deformed  at  birth. 
The  defendant  then  excepted  to  the  admis- 
sion of  testimony  that  when  the  plaintiff 
saw  this  deformity  she  was  pained.  The 
defendant  also  excepted  to  the  charge  of  the 
justice  to  the  jury  that  in  assessing  damages 
they  might  consider  any  mental  suffering, 
which  they  found  that  the  plaintiff  had  en- 


dured, due  to  her  apprehension  that  she 
would  give  birth  to  a  deformed  child;  and 
that  they  might  consider  her  mental  suffer- 
ing at  the  time  of  the  birth  caused  by  her 
disappointment  at  flnding  a  deformity  in 
the  head  of  the  child,  if  the  jury  should  also 
find  that  the  deformity  was  a  result  of  the 
accident  to  the  plaintiff.  The  justice  very 
carefully  instructed  the  jury  that  the  plain- 
tiff was  not  entitled  to  compensation  for  the 
Injury  to  the  child  or  for  any  disappointment 
and  suffering  which  she  as  its  mother  might 
feel  during  Its  life  by  reason  of  any  deform- 
ity In  the  child;  but  that  the  jury  were 
justified  in  giving  compensation  to  the  plain- 
tiff for  the  mental  suffering  which  the  jury 
might  find  she  had  endured  before  the  birth 
by  reason  of  her  apprehension  of  the  child's 
deformity,  and  also  for  her  suffering  at  the 
time  of  birth  caused  by  disappointment  in 
flnding  she  had  not  been  delivered  of  a 
sound  child,  provided  they  also  found  that 
the  deformity  was  due  to  the  accident  The 
exceptions  which  we  are  now  considering 
should  be  overruled.  The  foetus  1^  a  part 
of  the  person  of  a  pregnant  woman,  and  if, 
by  reason  of  the  nature  and  circumstances 
of  an  Injury  to  her  person  caused  by  the  neg- 
ligence of  a  defendant,  she  suffers  appre- 
hension and  anxiety  as  to  the  effect  of  the 
injury  upon  the  foetus,  in  accordance  with 
the  well-recognized  rule,  such  mental  suffer- 
ing becomes  an  element  of  her  damage  as  a 
natural  and  proximate  result  of  the  neg- 
ligence which  caused  the  injury.  Further- 
more, although  she  should  not  be  given  dam- 
ages for  the  child's  misfortune  during  life, 
resulting  from  an  injury  to  the  foetus,  nor 
for  her  own  subsequent  mental  distress  dur- 
ing the  lifetime  of  the  child  occasioned  by 
its  deformity,  the  mother  Is  entitled  to  dam- 
ages for  her  distress  and  disappointment  at 
the  time  of  the  birth  because  through  the  de- 
fendant's negligence  she  has  been  deprived 
of  the  right  and  the  satisfaction  of  bearing 
a  sound  child,  If  it  be  found  that  the  child's 
deformity  is  due  to  the  Injury  she  received 
through  the  defendant's  negligence.  Pres- 
cott  V.  Robinson,  74  N.  H.  460,  69  Atl.  622, 
17  L.  R.  A.  (N.  S.)  594,  124  Am.  St  Rep. 
987;  Big  Sandy  v.  Blankenshlp,  183  Ky. 
438,  118  S.  W.  316,  23  L.  R.  A.  (N,  S.)  345, 
19  Ann.  Cas.  264. 

The  defendant's  exceptions  are  all  over- 
ruled, and  the  case  Is  remitted  to  the  su- 
perior court  for  the  entry  of  judgment  on 
the  verdict 


PARIAN  V.  OLSSON  et  aL    (No.  4795.) 

(Supreme  Court  of  Rhode  Island.    June  26, 
1917.) 

Exceptions.  Biix  of  €=»50(1)  —  Tbanscbipt 
OF  Evidence. 
Where  plaintifF  filed  with  his  bill  of  ex- 
ceptions a  partial  transcript  of  the  testimony, 
consisting  only  of  the  cross-examination  of  the 
plaintiff,  and  certain  rulings  of  the  trial  judge 


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106 


101  ATLANTIC  ItEPORTEK 


(B.L 


upon  granting  the  nonsuit,  and  endeayored  to 
supplement  the  partial  transcript  hy  including  in 
hia  bill  of  exceptions  a  summary  statement  pur- 
porting to  show  what  was  proved  by  the  other 
portions  of  the  evidence,  in  order  thereby  to 
bring  upon  the  record  the  purport  of  the  whole 
testimony  on  behalf  of  the  plaintiff,  the  action 
ot  the  trial  judge  in  striking  out  and  disallow- 
ing the  summary  statement  of  the  testimony  and 
allowing  the  bill  of  exceptions  thus  changed  and 
in  refusing  to  allow  the  partial  transcript  of 
evidence  filed  with  the  bill  of  exceptions  on  the 
ground  that  it  was  insufficient  was  proper. 

[Ed.  Note.— For  other  cases,  see  Exceptions, 
Bill  of,  Cent  Dig.  §{  106,  lOa] 

Action  by  Daniel  Parian  against  Magnus 
CHsson  and  others.  On  plalntifTs  petition  to 
establish  tbe  truth  of  his  exceptions.  Peti- 
tion denied  and  dismissed. 

William  J.  Brown,  of  Providence,  for  plain- 
tiff. Fred  L.  Owen,  of  Providence,  for  de- 
fendants. 

PEE  CURIAM.  Upon  the  plalntifTs  peti- 
tion to  establish  the  truth  of  his  exceptions 
and  the  correctness  and  sufficiency  of  the 
transcript  of  testimony.  It  appears  that  the 
plaintiff,  after  suffering  a  nonsuit  in  tbe  su- 
perior court,  having  reserved  certain  excep- 
tions, in  due  time  filed  his  bill  of  exceptions, 
and  therewith  a  partial  transcript  of  testi- 
mony consisting  only  of  the  cross-examina- 
tion of  the  plaintiff,  and  containing  also  cer- 
tain rulings  of  the  trial  judge  upon  granting 
the  nonsuit 

The  plaintiff  endeavored  to  supplement  the 
partial  transcript  by  including  in  his  bill  of 
exceptions  a  summary  statement  purporting 
to  show  what  was  proved  by  the  other  por- 
tions of  the  evidence^  In  order  thereby  to 
bring  upon  the  record  the  purport  of  the 
whole  testimony  on  behalf  of  the  plaintlfT. 
The  trial  judge  struck  out  and  disallowed 
this  summary  statement  with  regard  to  the 
testimony  in  the  case,  and  allowed  the  bill  of 
exceptions  as  thus  changed.  The  trial  judge 
also  refused  to  allow  the  partial  transcript 
of  evidence  filed  with  tbe  bill  of  exceptions 
on  the  ground  that  It  was  insufficient 

Thereupon  In  due  time  the  plaintiff  filed  in 
this  court  his  petition  to  establish  the  truth 
of  his  exceptions  and  the  correctness  and  suf- 
ficiency of  the  transcript,  under  rulfe  13  of  this 
court  (62  Atl.  ix).  He  asks  this  court  to  estab- 
lish bis  bill  of  exceptions  as  originally  filed, 
including  the  summary  statement  of  testimo- 
ny therein,  and  attempts  by  his  sworn  petition 
and  by  affidavit  to  show  not  only  the  correct- 
ness of  the  portion  of  the  transcript  as  filed, 
but  also  by  another  summary  statement  what 
was  the  purport  and  substance  of  all  the 
other  testimony  In  the  case. 

We  think  the  case  Is  ruled  by  the  case  of 
Beaule  v.  A«ne  Finishing  Co.,  36  R.  I.  74, 
89  ,\tl.  73.  In  that  case  a  similar  attempt 
was  made.  The  plalntiiT  filed  with  his  bill  of 
exceptions  only  a  portion  of  tbe  transcript, 
containing  none  of  the  evidence  submitted  to 


the  jury,  but  only  containing  certain  rulings 
of  the  trial'  judge.  Plaintiff  incorporated  in 
his  bill  of  exceptions  as  filed  a  summary 
statement  of  the  meaning  and  effect  of  cer- 
tain evidence  alleged  to  have  been  Introduced 
at  the  trial;  the  trial  Judge  struck  out  and 
disallowed  this  simunary  statement  and  al- 
lowed the  rest  of  the  bill  of  exceptions.  Tbe 
trial  judge  also  allowed  the  partial  tran- 
script as  sufficient  for  the  consideration  of 
certain  numbered  exceptions,  and  found  It 
not  to  be  sufficient  for  the  consideration  of 
certain  other  numbered  exceptions.  Plaintiff 
then  petitioned  this  court  to  establish  the 
truth  of  his  exceptions  and  the  sufficiency  of 
the  transcript,  and  this  court  sustained  the 
action  of  the  trial  judge  In  striking  out  the 
summary  statement,  and  also  In  his  mllng 
as  to  the  Insufficiency  of  the  partial  tran- 
script for  consideration  of  certain  exceptions. 

For  the  same  reasons  stated  In  Beatile  v. 
Acme  Finishing  Co.,  supra,  this  court  Is  im- 
able  in  the  case  at  bar  to  find  that  the  trial 
judge  erred  either  In  changing  the  bill  of 
e.cceptions  by  striking  out  as  he  did  or  In  his 
disallowance  of  the  transcript  as  insufficient 
We  are  unable  to  accept  the  plalntUTs  state- 
ment in  his  petition  and  affidavits  In  place  of 
the  testimony  which  has  not  been  brought 
before  us  in  due  course  of  procedure;  and  we 
are  forced  to  rely  upon  the  finding  of  the 
trial  judge  as  to  the  insufficiency  of  the  par- 
tial transcript 

Therefore  the  plaintiff's  petiOon  must  be 
denied  and  dismissed. 


(40  B.  I.  4E6) 
MILLER  V.  TRUSTEE)S  OF  TRINITY  UN- 
ION METHODIST  EPISCOPAL 
CHURCH.    (No.  364.) 

(Supreme  Court  of  Rhode  Island.    July  3, 1917.) 

1.  Mechanics'  Liens  <s=»130(1)  —  Statkhent 
—Separate  BtJii-niNds. 

A  Sunday  school  building  on  the  same  tract 
of  property  upon  which  a  church  was  located 
and  connected  therewith  by  a  corridor,  electric 
wires,  and  steam  pipes  is  not  a  building  separate 
from  the  church  within  the  Lien  Law  (Laws 
1909,  c.  257). 

[Ed.  Note.— For  other  cases,  see  Mechanics' 
Liens,  Cent  Wg.  {{  178,  180,  181.] 

2.  Mechanics'  Liens  «=»158 — Statbuknt  — 
auendment. 

A  mechanic's  lien  claimant  can  file  ao 
amended  lien  statement  at  any  time  before  the 
expiration  of  the  period  allowed  for  filing  the 
original  lien,  which  amended  statement  takes  tlie 
place  of  the  original  statement  in  all  respects. 

[Bid.  Note.— For  other  cases,  see  Mechanics' 
liens.  Cent  Dig.  K  275-278.] 

Appeal  from  Superior  Court,  Providence 
and  Bristol  Counties;  (tester  W.  Barrows, 
Judge. 

Action  by  Charles  Miller  against  the  Trus- 
tees of  Trinity  Union  Methodist  Episcopal 
Church  to  establish  a  mechanic's  lien.  De- 
cree for  defendant,  and  petitioner  appeals. 
Reversed  and  remanded. 


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R.D 


MILLER  T.  TRUSTEES  OP  TRINITY  XJNION  M.  R  CHURCH 


107 


Charles  H.  McKenna,  of  ProTldence,  for 
petitioner.  Gardner,  Plrce  &  Tbomlay,  of 
Providence  (Thomas  G.  Bradshaw,  of  Prov- 
idence, of  counsel),  for  responldent. 

VINCENT,  J.  This  Is  a  pctiUon  to  es- 
tablish a  mechanic's  lien  npon  land  and  build- 
ings belonging  to  the  Trinity  Union  Metho- 
dist Episcopal  Church.  The  cause  comes  be- 
fore this  court  upon  the  petitioner's  appeal 
from  a  final  decree  of  the  superior  court  de- 
nying and  dismissing  his  petition.  The  pe- 
titioner's claim  is  for  certain  extra  work 
and  materials  furnished  by  him  In  the  con- 
struction of  a  certain  building  owned  by  the 
respondents. 

It  appears  that  the  Thomas  V.  Collinan 
Company  entered  Into  a  written  contract 
with  the  trustees  of  Trinity  Union  Metho- 
dist Episcopal  Church  to  erect  a  certain 
building  for  Sun'day  school  purposes  upon  the 
premises  owned  by  them  and  located  at  the 
comer  of  Brldgham  street  and  Trinity  square. 
In  the  city  of  Providence;  that  the  contract 
for  the  painting  was  sublet  by  the  Culllnan 
Company  to  Charles  Miller,  the  present  pe- 
titioner; that  the  petitioner  delivered  cer- 
tain materials  and  commenced  work  under 
bis  painting  contract  on  May  S,  1915,  and 
rendered  his  bill  to  the  Culllnan  Company 
for  $1,000,  which  was  tlie  entire  amount  of 
the  contract  price ;  that  the  petitioner  on  the 
4th  and  6th  days  of  October,  1915,  performed 
certain  extra  work  and  supplied  certain  ex- 
tra materials  amounting  to  $:i2.86,  rendering 
a  bill  therefor  on  October  11,  1915;  that 
the  petitioner  performed  some  work  around  a 
doorsvay  In  the  church,  a  building  adjoining 
the  Sunday  school  building  and  standing 
upon  a  separate  and  adjoining  lot  of  land; 
that  the  Sunday  school  while  being  erected 
was  connected  with  the  church  by  a  corri- 
dor, electric  wires,  water  and  steam  pipes, 
etc.;  that  a  notice  of  intention  to  claim  a 
mechanic's  lien  was  served  on  respondent  on 
November  6,  1915,  and  on  the  same  day  a 
copy  thereof  was  placed  on  record  in  the 
office  of  the  recorder  of  deeds  in  Providence; 
that  the  petitioner  on  January  6,  1916,  lodged 
his  account  or  demand  in  the  office  of  safd 
recorder  of  deeds  and  filed  his  notice,  setting 
forth  the  land  and  to  whose  interest  therein 
the  account  or  demand  referred  for  the  pur- 
pose of  commencing  legal  proceedings;  tliat 
the  petitioner  afterwards  lodged  In  the  office 
of  said  recoi'der  of  deeds  three  other  accounts 
or  demands,  each  of  which  was  followed  by 
a  notice  setting  forth  the  land  and  to  whose 
estate  the  account  or  demand  referred  for 
the  purpose  of  commencing  legal  proceed- 
ings. These  accounts  were  filed  respectively 
on  January  31,  1916,  February  25,  1916,  and 
February  29,  1916;  that  on  March  1,  1916, 
within  20  days  after  the  lodging  of  the  fourth 
account,  and  the  demand  an'd  notice,  the  pe- 
titioner filed  in  the  office  of  the  clerk  of  the 
superior  court  for  Providence  coanty  bis  pe- 


tition to  mforce  said  claim  of  lien,  attaching 
thereto  notice  of  the  last  account  or  demand 
filed  under  date  of  February  29,  1916;  that 
notice  of  tbe  filing  of  said  petition  was  duly 
given  by  the  clerk  of  the  superior  court  for 
Providence  county. 

All  these  accounts  were  filed  within  the 
statutory  period  of  6  months  from  the  com- 
mencement of  the  work  and  the  furnishing 
of  the  materials  which,  are  the  subject  of  the 
claim,  an'd  the  petition  to  enforce  the  Hen 
was  filed  in  the  clerk's  office  of  the  supe- 
rior court  within  20  days  after  the  lodging  of 
the  fourth  account,  demand,  and  notice. 

[1]  The  respondent  claims  that  the  peti- 
tioner is  seeking  to  enforce  a  J<dnt  Mea  oa 
two  separate  buildings;  that  is,  that  the 
Sunday  school  building,  although  connected 
by  means  of  a  corridor,  electric  wires,  water 
and  steam  pipes,  etc,  Is,  in  contemplation  of 
the  statutory  provisions,  two  separate  build- 
ings, and  that  the  petitioner's  account  lodged 
with  the  recorder  of  deeds  falls  to  separate 
and  specify  which  Items  apply  to  the  Sunday 
school  building  and  which  apply  to  the  church 
building.  The  respondent  also  claims  that 
the  petitioner  cannot  be  permitted  to  file 
more  than  one  account  within  the  required 
period  of  6  months  from  the  commencement 
of  the  work  or,  in  other  words,  that  the  sec- 
ond, third,  and  fourth  accounts  filed  must 
be  regarded  as  amendatory  of  the  first  ac- 
count file'd  on  January  6,  1916,  and,  that 
being  so,  the  petition  to  enforce  a  lien  was 
not  filed  In  the  office  of  the  clerk  of  the 
superior  court  within  20  days  after  the  com- 
mencement of  legal  proceedings. 

The  respondent,  admitting  for  the  purpose 
of  argument  that  the  petitioner  may  abandon 
the  first  three  accoiuts  filed  by  him  for  the 
purpose  of  commencing  legal  process,  and 
can  rely  upon  the  fourth  account  filed  Feb- 
ruary 29,  1916,  contends  that  such  fourth  ac- 
count is  fatally  defective  in  that  it  does  not 
specify  which  items  are  chargeable  to  the 
Sunday  school  building  and  which  items  are 
chargeable  to  the  church  building. 

The  estate  of  the  respondent  at  the  comer 
of  Brldgham  street  and  Trinity  square  com- 
prises two  adjoining  lots  of  land,  one  having 
been  conveyed  to  it  March  14,  1864,  and  the 
other  November  10,  1909.  The  church  build- 
ing, so  called,  is  situated  upon  the  first-nam- 
ed lot,  and  the  Sunday  school  building  upon 
the  other  lot  These  buildings  are  used  by 
the  respondent  for  the  purpose  of  conduct- 
ing and  carrying  on  its  usual  and  customary 
church  work,  and  the  two  structures  are,  for 
more  convenient  use,  connected  by  a  passage- 
way providing  an  easy  and  unexposed  means 
of  communication  from  one  to  the  other. 
Light,  heat,  and  water  are  supplied  to  the 
Sunday  school  building  by  means  of  wires, 
steam,  and  water  pipes  extended  from  the 
church  building  throujth  the  connecting  cor- 
ridor before  mentioned. 

The  respondent  lias  cited  section  7,  c  257, 


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(R.I. 


General  Laws  of  1909,  and  also  several  Rhode 
Tsland  cases  In  support  of  its  contention  that 
the  account  Is  'defective  In  not  specifying 
the  items  chargeable  to  each  building.  In 
order  to  extend  to  these  authorities  any  ap- 
plicability to  the  case  before  as,  it  would 
be  necessary  to  reach  the  conclusion  that  the 
church  and  Sunday  school  buildings  were 
separate  and  distinct  structures.  In  Bou- 
ohard  v.  GuIsU,  22  R.  I.  591,  48  AH.  034,  the 
notice  failed  to  state  that  the  materials  were 
furnished  for  any  building  or  improvement 
at  aU. 

In  McElroy  v.  Kelly,  27  B.  I.  64,  80  Atl. 
C79,  it  was  held  that  the  petitioner  Should 
have  filed  a  separate  notice  of  his  intention 
to  claim  a  lien  upon  each  house  and  a  sep- 
arate account  for  each  house  of  the  material 
famished  and  used  In  it.  In  that  case,  as 
the  court  said  in  its  opinion : 

"The  houses  were  exactly  alike  but  were  not 
joined  together  in  a  block,  but  separated  and 
adapted  to  be  occupied  each  with  a  separate 
curtilage." 

In  Butler  &  Co.  v.  Rivers,  4  R.  L  88,  the 
petitioner  proceeded  against  two  several  es- 
tates having  distinct  owners,  and  sought  to 
charge  both  estates  for  the  work  and  ma- 
terials furnished  for  each,  as  the  court  said, 
"in  efTect  to  make  one  of  them  chargeable 
with  work  and  materials  expended  upon  the 
other." 

In  McDufC  Coal  &  Lumber  Co.  v.  Del  Mona- 
co, 32  R.  I.  323.  79  Atl.  831,  the  petitioner 
undertook  to  proceed  upon  the  theory  that, 
inasmuch  as  tliree  houses  on  separate  tracts 
of  land  were  undergoing  constrnction  at  or 
about  the  same  time,  they  had  a  general  lien 
upon  all  of  them  for  a  general  balance  due 
on  the  assumption  that  probably  approxi- 
mately one-third  of  the  materials  had  been 
used  in  each  house,  and  that  ccmsequently 
they  could  Include  all  three  claims  In  one 
proceeding. 

The  respondent  claims  that  It  appears  from 
the  foregoing  cases  to  be  incumbent  upon  one 
desiring  to  establish  a  mechanic's  Hen  for 
materials  furnished  and  used  in  the  construc- 
tion of  more  than  one  building,  whether  such 
building  be  upon  the  same  or  adjacent  lots 
of  land,  to  describe  each  lot  and  building  sep- 
arately aad  to  particularize  in  his  account 
the  items  chargeable  to  each.  We  have  no 
controversy  with  such  deduction  from  the 
cases  cited.  As  before  stated,  in  order  to 
make  them  applicable  it  must  be  assumed 
that  the  church  and  the  Sunday  school  struc- 
tures are  separate  and  Independent  build- 
ings. We  cannot  so  hold.  The  whole  tract 
of  land  is  owned  by  the  respondent;  the 
buildings  are  used  for  one  general  purpose; 
they  are  physically  connected,  the  one  being 
dependent  upon  the  other  for  light,  heat,  and 
water.  We  think  that  under  these  condi- 
tions the  re.spoudent's  claim  of  two  separate 
and  distinct  buildings  cannot  be  accepted. 
In  fact,  to  carry  out  and  establish  the  con- 
necting corridor  work  upon  both  structures 


would  be  required,  and  the  determination  of 
a  proper  dividing  line  between  the  two  would 
be  difficult,  if  not  impossible. 

[2]  The  respondent  further  contends  that 
the  account  lodged  with  the  recorder  of  deeds 
February  29,  1916,  that  being  the  fourth  ac- 
count. Is  fatally  defective,  because  it  is  in 
amendment  of  the  first  account  filed  January 
6,  1916,  and  cites  Harris  v.  Page,  23  R.  L  440, 
50, AU.  859.  In  that  case  the  peUttoner 
sought  to  amend  his  account  by  extending  it 
or  adding  thereto  Items  not  appearing  in  the 
original  statement.  The  opinion  does  not 
state  specifically  whether  the  application  to 
amend  was  made  before  or  after  the  expira- 
tion of  the  time  allowed  by  statute  for  fil- 
ing an  account  as  the  commencement  of  legal 
process  to  establish  a  lien,  but  it  may  be  rea- 
sonably presumed  that  It  was  after;  for  oth- 
erwise the  petitioner  might  have  filed  a  new 
account  and  raised  the  same  question  which 
we  are  now  discussing. 

The  respondent  further  claims  that  the 
filing  of  the  first  account  on  January  6,  1916, 
was  the  commencement  of  legal  process,  and 
that  within  20  days  thereafter  the  petitioner 
was  bound  to  file  his  petition  in  equity  in  the 
superior  court  and  falling  to  do  so  lost  his 
lien.  The  petitioner,  on  the  other  hand, 
claims  that  he  is  not  limited  under  section 
7  of  diapter  257  to  the  filing  of  one  account, 
but  that  he  can  file  other  accounts,  waiving 
and  abandoning  all  former  ones,  provided  the 
last  account  is  filed  within  the  time  limited 
for  the  commencement  of  legal  process  and 
his  petition  to  enforce  the  lien  is  filed  within 
20  days  thereafter. 

It  is  apparent  that  the  first  three  accounts 
filed  by  the  petitioner,  for  one  reason  or  an- 
otlier,  were  defective.  The  fourth  account 
was  filed  within  the  required  time,  and  the 
fact  that  the  petitioner  proceeded  further  in 
the  establishment  of  his  lien  upon  the  fourth 
account  only  is  evidence  of  an  intention  upon 
his  part  to  abandon  all  accounts  previously 
filed. 

To  say  that  the  petitioner  must  stand  upon 
the  first  account  filed,  however  defective  it 
may  later  be  discovered  to  be,  and  that  he 
cannot  abandon  it  and  file  another  account 
within  the  statutory  period,  would,  in  our 
opinion,  be  inflicting  upon  a  petitioner  an  un- 
necessary and  unwarranted  hardship  which 
the  statute  neither  requires  nor  contemplates. 

The  respondent  argues  that  after  the  fll- 
Ing  of  the  first  account  Innocent  parties 
might  reasonably  infer  that  the  full  amount 
of  the  claim  had  been  disclosed,  and  thus  be 
led  into  dealing  with  the  estate  to  their  dis- 
advantage should  the  filing  of  a  later  account 
be  permitted.  We  do  not  see  any  great  force 
In  this  argument.  The  statute  fixes  a  period 
within  which  proceedings  may  be  instituted 
for  the  establishment  of  liens,  and  one  who 
deals  with  the  estate  before  Its  explraticn 
must  do  so  at  his  peril. 

The  appeal  of  the  petitioner  la  sustained, 
the  decree  of  the  superior  court  denying  and 


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dismissing  the  petition  is  reversed,  and  the 
cause  is  remanded  to  the  superior  court,  with 
direction  to  enter  a  decree  establishlns  the 
lien  of  the  petitioner  upon  the  estate  of  the 
respondent  described  In  the  petition  for  the 
sum  of  $32.6a 


KINGSTON  V.  WILSON.     (No.  6084.) 

{Supreme  Court  of  Rhode  Island.    July  S,  1917.) 

Garnishment  *=»56  —  Pbopebtt  Subject— 
Deposits. 
Wberp  it  appeared  that  none  of  the  mmey 
deposited  with  the  garnishee  trust  company  in 
the  account  of  defendnnt  as  agent  belonged  to 
him,  but  was  wholly  the  money  of  bis  prindpal, 
the  garnishee  was  not  chargeable. 

[Ed.  Note.— For  other  cases,  see  Gamislmient, 
Cent.  Dig.  JS  110,  111.] 

Exceptions  from  Superior  Court,  Prov- 
idence and  Bristol  Counties;  Chester  W. 
Barrows,  Judge. 

Action  by  James  Kingston  against  Robert 
H.  Wilson.  Plaintiff's  motion  to  charge  the 
garnishee  was  denied,  and  he  excepts.  Ex- 
ception overruled,  and  case  remitted. 

John  P.  Beagan,  of  Providence,  for  plain- 
tiff. Benjamin  W.  Grim,  of  Providence,  for 
defendant. 

PER  CURIAM.  This  is  an  action  of  debt 
on  judgment.  The  case  is  before  us  on  plain- 
tiff's exception  to  the  ruling  of  a  Justice  of 
the  superior  court  denying  the  plaintiff's 
motion  to  charge  the  garnishee. 

According  to  the  affidavit  filed  by  the  In- 
dustrial Trust  Company,  garnishee  In  the 
-case,  it  appears  that  at  the  time  of  the  at- 
tachment made  under  the  direction  contained 
in  the  writ,  there  was  In  the  bands  and  pos- 
session of  said  garnishee  $289.12  standing  in 
the  name  of  the  defendant  as  agent ;  that  the 
defendant  had  stated  to  the  garnishee  that 
he  was  the  agent  of  Colgate  &  Co.  From  the 
uncontradicted  evidence  given  at  hearing  be- 
fore said  justice  on  the  plalntlCTs  motion  to 
charge  the  garnishee  It  apiwared  that  the 
defendant  was  the  manager  "for  the  district 
here"  of  Colgate  &  Co.,  an'd  was  charged 
with  the  duty  of  directing  the  worlt  of  the 
salesmen  employed  by  said  Colgate  &  Co.; 
that  there  were  about  17  men  employed  by 
Colgate  &  Co.  under  the  direction  of  the  de- 
fendant; that  none  of  the  money  deposited 
in  said  account  of  "Robert  Wilson,  Agent," 
belonged  to  the  'defendant,  but  was  wholly 
the  money  of  Colgate  &  Co.  In  view  of  these 
facts,  which  said  Justice  found  to  be  true, 
we  are  of  the  opinion  that  there  is  no  error 
In  the  action  of  the  superior  court  denying 
the  motion  to  charge  the  garnishee. 

Plaintiff's  exception  is  overruled ;  the  case 
is  remitted  to  the  superior  court  for  further 
proceedings. 


(40  R.  I.  437) 
STATE  V.  McAVOT  (two  cases). 
(Nos.  4948,  4940.) 

(Supreme  Court  of  Rhode  Island.    July  8, 1917.) 

1.  Embezzlement    «=>3S— Evidence— Adkis- 
sibilitt. 

In  a  prosecution  for  embezzlement  by  an 
agent  in  charge  of  selling  and  delivering  flour, 
evidence  as  to  instructions  given  defendant  by 
his  predecessor  as  to  his  duties  in  making  re- 
ports, collections,  and  deposits  was  admissible. 
[Ed.  Note. — For  other  cases,  see  Embezzle- 
ment, Cent.  Dig.  ii  61,  65,  66.] 

2.  Cbihinal    Law    «=»1169(1)  —  Revikw  — 
Habmless  Ebrob. 

In  a  prosecution  for  embezzlement  by  an 
agent  intrusted  with  the  duty  of  selling  and  de- 
livering flour,  admission  of  slips  showing  deliv- 
eries of  flour  by  the  warehouse  company  and  of 
an  inventorjr  of  flour  kept  therein  made  by  its 
bookkeeper,  if  error,  held  harmless. 

[Ed.    Note. — For    other    cases,    see    Criminal 
Lew,  Cent.  Dig.  U  8180,  3137.] 

8.  Embezzixmbnt    «=s38— Evidence— Admis- 

sibilitt. 
In  a  prosecution  for  embezzlement  of  the 
proceeds  of  flour  sold  and  delivered  by  an  agent, 
testimony  by  the  bookkeeper  of  the  warehouse 
wherein  the  flour  was  kept  as  to  the  numl>er  of 
barrels  on  liand  as  shown  by  the  report  of  the 
defendant  to  the  milling  company  was  admissi- 
ble. 

[Ed.   Note. — ^For  other  cases,   see  Ehnbezzle- 
ment,  Cent  Dig.  S§  61,  65,  66.] 

4.  Embezzlement   ^=344(5)  —  Defenses— Del 
Cbedere. 

In  a  prosecution  for  embezzlement,  evidence 
held  not  to  tihow  that  defendant  was  a  del  cre- 
dere factor. 

[Ed.   Note. — For  other   cases,   see   Embezzle- 
ment, Cent.  Dig.  {  70.] 

5.  Embezzlement    ^=9l4  —  Defenses  —  Del 
Ckeoebe  Factobs. 

That  an  agent  charged  with  embezzlement 
was  a  del  credere  factor  of  his  principal  consti- 
tutes no  defense ;  such  relation  not  changing  the 
ordinary  one  existing  between  himself  and  his 
principal  within  Gen.  Laws  1909,  c.  345,  J  16, 
providing  that  every  officer,  agent,  Clerk,  or  serv- 
ant who  shall  emb^zle  property  which  shall 
have  come  into  his  possession  by  virtue  of  his 
employment  shall  be  deemed  guUty  of  larceny. 
[Ed.  Note.— For  other  cases,  sea  Embezzle- 
ment, Cent  Dig.  |§  13-15.] 

6.  Embezzlement  €=>38— Evidencb— Matbbi- 
alitt— Pbivileqed  Communications. 

In  a  prosecution  for  embezzlement,  it  was 
not  error  to  exclude  as  immaterial  correspond- 
ence received  by  the  state  board  of  tax  commis- 
sioners offered  on  the  question  as  to  whether  the 
employer,  a  company  incorporated  in  another 
state,  had  been  doing  business  in  this  state,  since 
under  Pub.  Laws  1912,  c.  769,  8  15,  such  in- 
formation could  not  be  divulged  except  upon 
order  of  the  court 

[Ed.   Note.— For  other   cases,   see  Embezzle- 
ment, Cent  Dig.  §§  61,  65,  66.] 

7.  Embezzlement  i8=48(l)  —  Inbtbuotions  — 
Appropbiation  of  Propebty. 

In  a  prosecution  for  embezzlement.  It  was 
not  error  to  instruct  that  the  ownership  of  tlie 
flour  the  proceeds  of  which  were  alleged  to  have 
been  embezzled  was  controlling  as  to  defendant's 
rights  thereto. 

[Ed.   Note.— For   other   cases,   see   Embezzle- 
ment, Cent  Dig.  {J  72,  75.] 


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8.   BtHBEZZUaiENT     «=»44(1)— EVIDENCK— SUF- 
WCIKNCT. 

In  a  prosecution  for  embezzlement,  evidence 
held  to  warrant  a  finding  of  guilty. 

[HJ.  Note.— For  other  cases,  see  Embezzle- 
ment, Cent  Dig.  {{  67,  70.] 

Exceptions  from  Superior  Court,  Prov- 
idence and  Bristol  Counties;  George  T. 
Brown,  Judge. 

Harry  A.  McAvoy  was  convicts  of  em- 
bezzlement, and  be  brings  exceptions.  Ex- 
ceptions overruled. 

Herbert  A.  Rice,  Atty.  Gen.  (Claude  R. 
Brancb,  of  Providence,  of  counsel),  for  the 
State.  Fitzgerald  &  Higglus  and  Peter  M. 
O'Reilly,  all  of  Providence,  for  defendant. 

VINCENT,  J.  In  December,  1914,  the 
grand  Jury  for  Providence  county  presented 
two  indictments  against  the  defendant  for 
embezzlement  To  each  of  these  indictments 
the  defendant  plea'ded  not  guilty  and  was  re- 
leased on  bail.  The  two  cases  were  tried 
together  in  the  sui>erior  court.  The  defend- 
ant moved  to  be  discharged  at  the  conclu- 
sion of  the  testimony  offered  on  behalf  of 
the  state.  The  motion  was  'denied.  The  jury 
returned  a  verdict  of  guilty  as  charged  in 
each  indictment,  each  being  for  the  em- 
bezzlement of  an  amount  exceeding  $500. 
The  d^en'dant  filed  a  motion  for  a  new 
trial,  upon  the  usual  grounds,  which  was 
denied  by  the  trial  court 

The  case  is  now  before  us  upon  the  defend- 
ant's exceptions  covering  the  denial  of  his 
motion  for  discharge;  to  various  rulings 
during  the  trial  as  to  the  admissibility  of 
evidence;  to  certain  portions  of  the  charge 
of  the  court;  and  to  the  denial  of  the  motion 
for  a  new  trial.  The  defendant's  exceptions 
are  58  in  number,  but  we  are  advised  by 
his  brief  that  he  relies  only  upon  exceptions 
numbered  1,  2,  3,  32,  83,  34,  30,  53,  54,  67. 
an'd  58. 

The  indictment  No.  8269,  now  before  us 
on  exceptions  No.  4948,  charges  the  defend- 
ant, Harry  A.  McAvoy,  on  the  1st  day  of 
January,  1914,  at  Providence — 
"b«ng  then  and  there  the  derk  and  agent  of 
the  Bay  State  Milling  Company,  a  corporation, 
did  then  and  there  by  virtue  of  his  said  employ- 
ment have,  receive,  and  talce  into  his  possession 
money  to  a  large  amount  to  wit,  to  the  amount 
of  $1,368.87,  and  of  the  value  of  $1^68.87,  of 
the  pn^erty  and  money  of  the  said  Bay  State 
Milhng  Company,  a  corporation  as  aforesaid,  the 
said  Harry  A.  McAvoy  s  employer,  and  the  said 
Harry  A.  McAvoy  the  said  money  then  and 
there  feliwiously  did  embezzle  and  fraudulently 
convert  to  his  own  use,  without  the  consent  of 
the  said  Bay  State  Milling  Company,  a  cor- 
poration as  aforesaid,  the  said  Harry  A,  Mc- 
Avoy's  said  employer,  whereby  and  by  force  of  i 
the  statute  in  such  case  made  and  provided  the  \ 
(■aid  Harry  A.  McAvoy  is  deemed  guilty  of 
larceny,"  etc.  | 

The  indictment  No.  8270,  now  before  us  | 
on  exceptions  No.  4949,  is  Identical  with  the  | 
one  above  referred  to,  with  the  exception  of 
the  date  of  the  embezzlement,  which  is  stated  I 


on  July  1,  1914,  and  the  amount  embezzled  as 
$2,834.30. 

The  defendant,  covering  the  periods  of  the 
alleged  embezzlements,  was  In  the  employ  of 
the  Bay  State  Milling  Company  a  corporation 
created  under  the  laws  of  the  state  of  Min- 
nesota an'd  having  its  principal  ofllce  In  the 
city  of  Boston,  Mass.  All  the  dealings  of  the 
defendant  were  with  this  office.  The  defend- 
ant was  hired  by  the  president  of  the  com- 
pany, Bernard  J.  Rothwell,  and  his  assist- 
ant, Ernest  C.  Harris,  and  commenced  work 
for  said  company  in  April  or  May,  1913.  His 
duties  were  to  sell  flour  in  Providence  and 
vicinity  and  to  collect  the  proceeds  of  such 
sales.  During  his  earlier  employment  by  the 
milling  company  he  perform^  these  duties 
for  a  stated  salary  of  $70  per  month  and  an 
allowance  for  expenses,  both  of  which  were 
paid  by  the  checks  of  the  milling  company. 

Upon  assuming  his  duties  the  defendant 
was  instructed  to  conduct  the  business  in  the 
same  manner  in  which  it  had  been  conducted 
by  his  predecessor.  Fay  G.  Hicks.  In  com- 
pliance with  such  Instructions,  the  defend- 
ant submitted  himself  to  the  tutelage  of 
Hicks  for  a  period  of  about  a  week,  receiv- 
ing from  him  minute  directions  as  to  the 
method  of  conducting  the  business  and  being 
introduced  by  him  to  various  customers. 

The  instructions  given  to  the  defendant  by 
Hicks  were  that  each  sale  was  to  be  report- 
ed to  the  milling  company  by  sending  to  its 
office  in  Boston  a  duplicate  or  carbon  copy  of 
the  invoice  slip  on  the  day  of  the  sale,  and  a 
weekly  report,  including  an  account  of  the 
stock  on  hand  at  the  warehouse  and  a  list  of 
the  collections.  Tlie  milling  company  fur- 
nished to  the  defendant  a  pad  of  Invoice 
slips,  numbered  consecutively,  there  being 
four  copies  to  each  number,  distinguishable 
from  each  other  by  the  color  or  character  of 
the  paper.  The  original  or  white  slip  was  to 
be  kept  by  the  defendant ;  the  blue  slip  to  be 
sent  to  the  customer ;  the  slip  of  tissue  paper 
was  to  be  forwarded  to  the  olSce  of  the  mill- 
ing company  in  Boston;  and  the  pink  slip 
was  not  required  under  the  arrangement 
with  the  defendant  Printed  blanks  for  the 
weekly  reports  were  also  furnished  to  the  de- 
fendant by  the  milling  company  which  were 
designed  to  show,  when  properly  filled  out, 
the  number  of  barrels  of  flour  received  dur- 
ing the  week ;  an  itemized  list  of  the  number 
of  barrels  delivered  to  customers  from  the 
warehouse;  the  number  of  barrels  remain- 
ing in  the  warehouse;  and  an  itemized  list 
of  all  amounts  collected  from  customers.  As 
soon  as  the  defendant  collected  the  proceeds 
of  sales,  cither  in  money  or  by  check,  he  wsw 
to  deposit  the  same  in  the  Merchants'  Na- 
tional Bank  in  Providence  in  the  name  of  the 
milling  company  and  report  the  same  by 
sending  to  the  milling  company  a  copy  of 
the  deposit  slip. 

On  November  1,  1913,  a  further  arrange- 


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111 


ment  was  mnde  between  the  defendant  and 
tbe  milling  company  whereby  the  defendant 
should  thereafter,  Instead  of  receiving  a 
L^ed  salary,  be  paid  a  commission  of  35 
cents  for  every  barrel  of  flour  sold  by  him,  he 
paytaig  Ills  own  expenses,  the  expenses  of 
storing  and  cartln;;  the  floor  in  Providence 
and  the  guaranteeing  of  all  accounts.  Ttds 
iirrangemeoit  does  not  appear  to  have  modi- 
fied, or  to  have  been  intended  to  modify,  the 
previous  instructions  given  to  defendant  as 
to  reports,  collections,  and  deposits.  In  car- 
rying out  tills  additional  arrangement  tbe  de- 
fendant was  paid  $16  a  week  in  advance  on 
account  of  commissions.  The  balance  due  the 
defendant  on  account  of  commissions  was 
paid  to  him  from  time  to  time  by  check  from 
tbe  milling  company,  and  he  was  not  permit- 
ted to  deduct  such  commissions  from  bis  col- 
lections. Later,  the  milling  company  becom- 
ing dissatisfied  with  tbe  defendant's  dilatori- 
ness  in  collecting  the  accounts,  a  further  ar- 
rangement was  made  between  the  parties, 
tubing  effect  In  March,  1914,  whereby  the  de- 
fendant was  to  be  ciiarged  interest  on  all  ac- 
eomits  wlildi  were  not  collected  wittiln  45 
days. 

During  tbe  summer  of  1014  there  were 
some  negotiations  between  the  defendant  and 
tbe  milling  company  looking  to  some  arrange- 
ment wbereoy  the  defendant  should  buy  the 
tiour  from  tbe  milling  company  and  sell  it  on 
Ids  own  account,  and  on  October  9,  1914,  the 
defendant  wrote  to  the  mlUing  company  that 
by  the  next  month  he  hoped  to  "buy  the  busi- 
ness outright."  This  arrangement  was  never 
completed,  and  the  defendant  admitted  at 
the  trial  that  ttas  letter  was  written  merely 
for  the  purpose  of  gainlmg  time. 

Tbe  uiilling  company  shipped  the  flour  In 
its  own  name  to  a  warehouse  in  Providence. 
None  of  the  flour  was  ever  conslgued  or 
charged  to  the  defendant,  and  the  defend- 
ant's name  did  not  appear  in  tbe  shipment 
Ml  the  bills  sent  by  the  defendant  to  pur- 
chasers of  flour  were  in  the  name  of  tbe 
milling  oompoiny,  a  notice  being  stamped 
thereon  requesting  remittance  to  "Uarry  A, 
McAvoy,  Agt"  The  defradant  also  ia  the 
transaction  of  the  business  used  stationery 
which  was  headed  "Bay  State  Milling  Com- 
pany." The  defendant  was  given  no  author- 
ity to  make  prices  on  bis  own  account,  and 
letters  and  bills  were  sent  direct  to  delin- 
quent  customers   by   the   milling    company. 

The  defendant  undertook  and  purported  to 
conduct  the  business  in  accordance  with 
these  arrangements.  He  sent  to  the  milling 
company  duplicate  invoice  slips  and  copies 
of  deposit  slips  and  a  weekly  report  in  tbe 
form  heretofore  described. 

The  evidence  shows  that  the  defendant 
made  sales  and  deliveries  which  he  never  re- 
ported to  the  milling  company,  and  that  ho 
made  collections  wliich  he  did  not  deposit  in 
the  Merchants'  National  Bank  or  report  to 
the  milling  company,  Iwt  appropriated  the 
same  to  his  own  use.     There  is  evidence 


sbovrlng  the  methods  resorted  to  by  tbo  de- 
fendant tn  concealing  from  the  milling  com- 
pany that  he  was  obtaining  money  which  be 
did  not  report ;  tliat  he  omitted  to  report  to 
the  company  certain  collections  which  he 
liad  made  on  deliveries  reported;  that  he 
omitted  to  report  certain  sales  and  deliv- 
eries; that  he  would  deliver  flour  to  two 
different  customers  under  invoices  of  the 
same  number  and  report  but  one  of  these 
deliveries  to  the  company,  sending  the  white 
slip  to  one  customer  and  the  blue  slip  of  the 
same  number  to  another  customer  instead 
of  retaining  either  for  himself,  and  on  the 
tissue  slip  of  the  same  number  send  to  the 
company  a  report  of  only  one  of  the  sales. 

The  defendant  admitted  that  in  one  in- 
stance he  had  intentionally  concealed  from 
the  milling  company  one  sale  and  collection 
amounting  to  $S5,  but  he  testified  that  his 
failure  to  report  other  collections  to  the  oum- 
ber  of  a  dozen  or  more  was  due  to  forget- 
fuiness. 

The  defendant  hod  been  instructed  to  de- 
posit all  coUecticms  to  tlie  accoimt  of  the  mill- 
ing company  in  the  Merchants'  National 
Bank  and  send  the  milling  company  a  copy 
of  each  deposit  slip;  and,  according  to  tbe 
testimony  of  the  otScers  of  the  milling  com- 
pany, the  defendant  had  no  authority  to  in- 
dorse any  check  made  out  to  the  onler  of  the 
milling  company  or  to  deal  with  either  money 
or  checks  received  in  payment  of  flour  ex- 
cept to  deposit  the  same  to  the  account  of  the 
milling  company  in  the  Merdiants'  National 
Bank.  The  testimony  shows,  however,  that 
several  checks  made  out  to  the  order  of  the 
milling  company  were  deposited  by  tbe  de- 
fendant to  his  own  account  In  the  Industrial 
Trust  Company  of  Providence,  the  defendant 
indorsing  them  "Bay  State  Milling  Company, 
Harry  A.  McAvoy,  Agent,"  and  that  the 
amounts  represented  by  such  checks  wore 
never  reported  to  the  milling  company  as  col- 
lections. 

In  July,  1914,  the  milling  company  wrote 
to  the  warehouse  in  Providence  in  which  the 
flour  was  stored  requesting  an  inventory  of 
the  flour  o[  tbe  milling  company  then  In  Its 
possession.  Tbe  defendant,  visiting  the  office 
of  the  warehouse  company  and  seeing  tbe  let- 
ter requesting  an  inventory,  told  the  repre- 
sentatives of  tbe  warehouse  company  that  he 
would  take  care  of  that  matter,  and  accor  I- 
Ingly  prepared  an  Inventory  on  a  sheet  of 
letter  paper  headed  with  the  name  of  the 
warehouse  company,  which  paper  had  In 
some  unexplained  manner  come  into  the  de- 
fendant's possession.  Hie  Invraitory  thus 
prepared  by  the  defendant  was  typewritten 
and  without  signature.  There  was  nothing 
upon  it  to  indicate  that  it  was  not  compiled 
by  employes  of  tbe  warehouse  company.  The 
amounts  given  in  this  inventory  correspond- 
ed with  those  given  by  the  defendant  in  his 
reports,  but  exceeded  by  about  300  barrels 
the  amount  of  flour  whidti  was  actually  in 
tbe  bands  of  tbe  warehouse  company. 


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The  defendant  made  some  explanation  of 
this  matter  of  the  inventory  to  the  effect 
that  an  employe  of  the  warehouse  company 
asked  him  to  make  out  the  inventory  and 
that  he  copied  the  figures  from  his  previous 
reports.  Although  the  milling  company  later 
wrote  to  the  defendant  referring  to  this  re- 
port as  the  report  of  the  warehouse  com- 
pany, the  defendant  did  not  advise  the  mill- 
ing company  that  such  report  bad  been  made 
by  himself. 

There  was  also  testimony  that  on  Novem- 
ber 14,  1914,  the  milling  company  was  noti- 
fied by  the  Merchants'  National  Bank  that  its 
account  was  overdrawn.  This  turned  out  to 
be  due  to  the  fact  that  the  defendant  had 
deposited  in  that  bank  a  check  against  his 
own  account  in  the  Industrial  Trust  Com- 
pany which  did  not  prove  to  be  good.  Mr. 
Harris  of  the  milling  company  came  to  Provi- 
dence and  telephoned  the  defendant  that  he 
would  like  to  see  him  at  the  Narragansett 
Hotel.  Harris  testifies  that  defendant  stated 
to  him  over  the  telephone  that  he  would  be 
at  the  hotel  in  a  few  minutes.  The  defend- 
ant, however,  went  to  New  London,  Conn. 
Harris,  after  waiting  for  a  time,  telephoned 
the  defendant's  father,  who  in  turn  tele- 
phoned the  defendant  at  New  London,  sug- 
gesting to  the  defendant  that  he  return  to 
Providence,  and  he  accordingly  came  back 
the  next  day.  The  defendant,  however,  testi- 
fies that  he  told  Harris  over  the  telephone 
that  he  had  made  arrangements  to  go  to  the 
southern  part  of  the  state  to  see  prospective 
customers  and  could  not  see  him  that  day. 
On  cross-examination  the  defendant  admitted 
that  he  had  never  before  solicited  business 
in  Westerly,  and  that  he  could  not  remember 
the  name  of  a  single  person  upon  whom  he 
called.  He  said  that  he  went  to  New  London 
because  there  was  no  decent  hotel  in  Wester- 
ly where  he  could  spend  the  night.  The  de- 
fendant further  admitted  on  cross-examina- 
tion that  he  knew  nothing  whatever  about 
the  hotels  at  Westerly,  and  had  no  reason 
whatever  for  being  dissatisfied  with  them. 
Witnesses  for  the  state  testified  that  the  de- 
fendant admitted  at  the  start  that  he  had 
gone  to  Connecticut  because  he  was  afraid  to 
face  Harris;  that  be  had  appropriated  money 
collected  to  the  extent  of  some  ?6,000,  In- 
cluding about  $2,000  of  the  sales  which  he 
had  not  reiwrted  to  the  milling  company; 
that  he  had  made  out  a  false  Inventory  on 
the  letter  paper  of  the  warehouse  company, 
and  that  he  had  paid  out  most  of  the  money 
which  be  had  taken  to  make  up  for  losses  in 
speculating  In  wheat;  that  tiie  defendant, 
without  making  any  attempt  to  Justify  the 
taking  of  the  money,  told  the  representatives 
of  the  company  that  they  could  put  him  In 
jail  if  they  wanted  to,  and  when  arrested  by 
Inspector  Magulre  he  said  he  had  been  a 
fool  to  give  up  his  ledger  to  the  company. 
In  October,  1914,  in  answer  to  some  com- 
plaints of  the  milling  company  that  he  was 
behind  in  the  collection  of  his  accounts,  the 


defendant  wrote  to  the  milling  company  that 
In  a  few  weeks  an  estate  in  which  he  was  in- 
terested would  be  settled,  and  that  he  would 
then  have  the  money  to  remit,  but  he  admit- 
ted on  cross-examinatlMi  that  this  story  was 
a  falsehood,  and  that  there  was  no  such  estate. 

The  only  exceptions  pressed  by  the  defend- 
ant, as  stated  in  his  brief,  are  those  number- 
ed, 1,  2,  3,  32,  33,  34,  36,  63,  64,  57,  and  58. 

[1]  The  defendant's  exceptions  1,  2,  and  3 
relate  to  the  admission  of  certain  testimony 
of  Fay  G.  Hicks.  Hicks  was  the  predecessor 
of  the  defendant  as  the  Providence  agent  of 
the  milling  company.  The  defendant  was 
told  to  get  from  Hldu  instructions  as  to  the 
method  of  carrying  on  the  business.  The  de- 
fendant went  to  Hicks,  and  Hicks  spent  the 
greater  part  of  a  week  In  giving  him  instruc- 
tions as  to  making  and  reporting  sales  and 
collections  and  also  taking  him  to  Interview 
customers.  The  defendant  objected  to  the 
testimony  of  Hicks  In  reference  to  the  in- 
structions he  gave  to  the  defendant  on  the 
ground  that  such  instructions  were  given  in 
April,  1913;  that  the  contract  under  which 
he  was  then  employed  by  the  milling  com- 
pany ended  in  November,  1913,  previous  to 
the  embezzlement  set  forth  In  the  indictment ; 
and  that  the  arrangements  from  November  1, 
1913,  to  the  conclusion  of  his  dealings  with 
that  company  were  very  different,  and  it  was 
immaterial  what  the  arrangements  were  prior 
to  1914,  the  time  laid  in  the  indictment 

We  do  not  think  that  the  contract  between 
the  defendant  and  the  milling  company  can 
be  said  to  have  ended  in  November,  1913. 
The  contract  was  added  to  or  modified  in 
some  respects  at  that  time,  but  such  additions 
or  modifications  did  not  relate  to  the  reports, 
collections,  and  deposits  which  the  defend- 
ant was  instructed  to  make  and  under  which 
instructiimg  he  undertook  to  act 

The  modifications  referred  to  related  to 
the  defendant's  compensation,'  the  guarantee- 
ing of  accounts,  and  to  the  payment  of  in- 
terest on  accounts  after  the  same  had  been 
overdue  for  a  certain  period.  The  duties  of 
the  defendant  in  the  matter  of  reports,  collec- 
tions, and  deposits  were  those  given  to  him 
by  Hicks  at  the  Instance  of  the  milling  com- 
pany, and  we  think  that  such  testimony  was 
properly  admitted,  and  ttiat  the  defendant's 
exceptions  1,  2,  and  3  must  be  overruled. 

The  defendant's  exceptions  32,  33,  and  34 
relate  to  the  same  matter,  and  may  be  con- 
sidered together. 

In  July,  1914,  the  milling  company  wrote  to 
the  warehouse  company  for  an  inventory  of 
the  flour  on  hand.  This  Inventory,  as  before 
stated,  was  made  up  by  the  defendant,  type- 
written upon  the  letter  paper  of  the  ware- 
house company,  was  without  signature,  and 
bore  no  indication  that  it  emanated  from  the 
defendant.  It  was  sent  by  the  defendant  to 
the  milling  company  purporting  to  be  a  cor- 
rect statement  by  the  warehouse  company  of 
the  amount  of  flour  on  hand.  The  state,  in 
Its  endeavor  to  show  the  falsity  of  this  state- 


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BTATB  V.  MoAVOY 


113 


ment  and  that  the  amount  of  flour  to  the  pos- 
session of  the  milling  company  was  much 
lees  than  that  represented  In  the  report,  of- 
fered In  evidence  an  InvMitory  of  the  flour  In 
the  hands  of  the  warehouse  company  on  July 
30,  1914,  made  up  by  the  bookkeeper  of  that 
company.  In  making  such  Inventory  the 
bookke^)er  started  with  the  balance  of  flour 
as  shown  by  the  Inventory  of  the  month  pre- 
ceding, and  deducted  therefrom  the  deliveries 
during  the  month  as  reported  to  him  by  the 
teamers.  These  reports  of  the  teamers  were 
made  from  time  to  time  upon  slips  used  for 
that  purpose  which  were  filed  In  the  ottlce  of 
the  warehouse  company.  Some  of  these  slips 
were  offered  in  evidence  in  verification  of  the 
toventory  of  the  bookkeeper.  Another  em- 
ploye of  the  warehouse  company  testified 
that  he  actually  counted  the  stock  of  fiour  on 
hand,  and  found  that  his  figures  corresponded 
with  the  figures  of  the  Inventory  made  by  the 
bookkeeper.  Besides  this,  Mr.  Harris  of  the 
milling  company  counted  the  barrels  of  flour 
on  hand  In  the  warehouse  and  found  a  short- 
age of  575  barrels. 

[2]  The  defendant  contends  that  the  Intro- 
duction of  the  slips  referred  to  showing  de- 
liveries of  flour  made  by  the  teamers  of  the 
warehouse  company  and  the  Introduction  of 
the  toventory  of  flour  made  therefrom  by 
the  bookkeeper  of  the  warehouse  company 
amounted  to  nothing  more  than  the  totroduc- 
tloD  of  hearsay  evidence,  the  admission  of 
which  was  error.  The  apparent  purpose  of 
the  testimony  was  to  show  that  the  defend- 
ant had  deceived  the  milling  company  by 
conveying  to  that  company  a  false  report  of 
the  flour  on  hand.  If  we  take  the  view  that 
the  admission  of  such  testimony  was  errone- 
ous. It  would  not  constitute  reversible  error 
to  view  of  the  fact  that  there  was  other  tes- 
timony establishing  the  falsity  of  the  defend- 
ant's toventory  which  he  did  not  dispute. 
The  defendant's  exceptions  32  and  33  must  be 
overruled. 

[3]  The  defendant's  exception  34  is  to  the 
rultog  of  the  court  allowing  the  bookkeeper 
of  the  warehouse  to  testify  as  to  the  number 
of  whole  barrels  of  flour  on  band  as  shown 
by  the  report  of  the  defendant  made  to 
the  milling  company.  The  defendant  object- 
ed to  the  question  on  the  ground  that  the  is- 
sue waa  not  the  embezzlement  of  flour.  We 
see  no  merit  in  this  exception.  The  number 
of  barrels  disposed  of  and  unaccounted  for 
by  the  defendant  would  naturally  form  a 
basis  for  ascertaining  the  amount  of  money 
covered  by  the  embezzlement.  The  defend- 
ant's excepdon  34  Is  overruled. 

[4]  At  the  condnslon  of  the  testimony  for 
the  state  the  defendant  moved  that  he  be 
disdiarged,  and  his  exception  36  is  to  the 
refusal  of  the  trial  court  t»  grant  that  motion. 
The  basis  of  this  motion  was  that  under  the 
facts  as  presented  the  defendant  was  a  del 
credere  factor,  and  that  the  relations  between 
himself  and  the  milling  company  were  simply 
those  of  debtor  and  creditor.  Passing  over 
101A.-S 


the  contention  of  the  state  that  the  disposi- 
tion of  such  a  motion  is  within  the  discretion 
of  the  court  and  Is  not  the  subject  of  excep- 
tion, two  questions  present  themselves  for, 
consideration:  (1)  Was  the  relation  of  the 
defendant  with  the  milling  company  that  of 
del  credere  factor?  and  (2)  if  such  relation 
listed,  could  the  defendant  be  found  guil- 
ty of  embezzlement  under  the  todlctments 
brought  against  him? 

In  determining  the  first  of  these  questions, 
we  must  consider  the  agreement  between  the 
parties  and  apply  thereto  the  familiar  rules 
of  construction,  all  of  which  are  subordtoate 
to  the  leading  principle  that  the  intention  of 
the  imrtles  must  prevail  unless  toconsistent 
with  some  rule  of  law.  And  such  intention 
must  be  gathered  not  from  a  portion  or  por- 
tions of  the  contract  but  from  the  whole 
taken  together.  11  R.  O.  L.  755;  1  Clark  & 
Skyles  on  Agency,  24. 

In  the  case  at  bar  the  flour  was  never 
consigned  by  the  milling  company  to  the  de- 
fendant It  was  shipped  direct  to  the  ware- 
house In  Providence,  where  It  was  held  as 
the  property  of  and  to  the  name  of  the  mill- 
ing company  and  was  at  all  times  subject  to 
Its  orders.  The  defendant,  after  maktog  a 
sale  of  flour,  was  permitted  by  the  milling 
company  to  withdraw  from  its  stock  in  the 
warehouse  a  suflldent  number  of  barrels  to 
fill  the  order.  A  bill  was  rendered  to  the 
purchaser  in  the  name  of  the  milling  com- 
pany, there  being  stamped  upon  such  bill  a 
notice  to  pay  the  amount  due  thereon  to  the 
defendant  as  its  agent.  Upon  the  receipt  of 
the  money  the  defendant  was  obligated,  un- 
der his  contract,  to  deposit  it  in  full  in  the 
Merchants'  National  Bank  to  the  credit  of  the 
mllltog  company  without  any  deduction 
therefrom  for  salary,  commission,  or  ex- 
I>enses. 

We  cannot  flnd  any  intent  of  the  parties, 
either  expressed  by  the  contract  itself  or 
by  the  methods  In  which  thtir  respective 
duties  under  it  were  discharged,  that  would 
warrant  us  In  drawing  the  conclusion  that  the 
defendant  was  acting  otherwise  than  as  the 
agent  of  the  milling  company. 

The  defendant  seems  to  place  much  reli- 
ance upon  the  fact  that  under  certain  condi- 
tions he  was  to  be  held  responsible  to  the 
milling  company  for  Interest  upon  accounts 
overdue  for  a  certain  length  of  time,  and 
to  some  tostances  for  the  payment  of  the 
principal  sum.  The  reason  for  this  arrange- 
ment is  quite  apparent  from  the  record.  The 
milling  company  had  expressed  its  dissatis- 
faction at  the  seeming  todifference  of  the 
defendant  regarding  the  prompt  collection  of 
the  accounts  due  and  his  want  of  care  to  the 
selection  of  responsible  customers.  The  ar- 
rangement was  doubtless  made  for  the  pur- 
pose of  stlmnlattog  the  defendant  to  look 
more  closely  after  the  collections  and  to  be 
more  careful  about  making  sales  to  irre- 
sponsible parties.    It  could  hardly  be  Inferred 


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68 


101  ATLANTIO  SSPOBTBR 


<N.J. 


wlfhont  power  to  refer  tbe  matter  at  bar  to 
a  vice  ordinary  la  also  musonnd.  Tbe  con- 
tention la  that  because  tbe  appeal  la  given 
In  terms  to  tbe  ordinary,  and  that  no  power 
to  refer  It  Is  given  In  the  same  statute,  the 
right  does  not  exist  This  Is  falladons,  for 
by  act  of  1918  (P.  U  p.  81)  the  ordinary  Is 
empowered  to  refer  any  matter  pending  in 
the  Prerogative  Court  to  a  vice  ordinary  for 
hearing  and  advloe,  but  the  jurisdiction 
which  the  vice  ordinaries  ezerdse,  upon  ref- 
erence to  them,  la  not  derived  from  this  stat- 
ute, but  by  delegation  from  the  ordinary  by 
virtue  of  his  inherent  powers. 

In  an  eihaustive  review  of  the  powers  of 
the  vice  chancellors  <whose  oflSoe  was  like- 
wise created  by  statute),  in  Re  Thompson,  89 
N.  J.  Eq.  221,  96  Atl.  102,  OhanceUor  Walker, 
at  page  257,  holds  Uiat: 

"Their  jurisdictioQ  is  complete  by  delegation 
from  the  chancellor  under  the  aathonty  inhering 
In  his  general  power  derived  from  the  High 
Court  of  Chancery  in  England  and  devolved 
upon  our  Court  of  Chancery  by  the  ordinances 
or  Lord  Combury  and  Governor  Franklin,  and 
ratified  by  the  ConstitutJons  of  1776  and  1844." 

And  at  page  261  of  85  N.  J.  Eq.,  96  Atl. 
102,  he  holds  that  a  perfect  analogy  exists 
with  reference  to  the  Prerogative  Court,  in 
which  tbe  Lesialature  has  authorized  the  ap- 
pointment of  vice  ordinaries,  the  ancient  of- 
fice of  surrogate,  as  deputy  or  assistant  to 
Uie  ordinary,  being  the  source  of  power  in 
the  vice  ordinaries. 

It  is  to  be  observed  that  in  the  act  creat- 
ing the  office  of  vice  ordinary  (P.  U  1913,  p. 
81)  the  Legislature  lias  provided  that  the  or- 
dinary may  refer  to  any  vice  ordinary  any 
cause  or  other  matter  wUch  at  any  time  may 
be  pending  in  the  Prerogative  Court,  to  hear 
tbe  same  for  the  ordinary  and  report  Uiereon 
to  litm  and  advise  what  order  or  decree 
should  be  made  therein.  Now,  If  tlie  ordi- 
nary is  a  functionary  apart  from  himself  as 
the  Judge  of  the  Prerogative  Court,  it  is 
singular  that  the  lawmaking  body  did  not 
t>estow  the  power  to  refer  upon  the  Judge  of 
the  Prerogative  Court,  ttie  only  functiooary 
who  in  such  case  could  constitutionally  exer- 
cise It,  instead  of  casting  it  upon  the  ordina- 
ry, who  could  not  lawfully  do  so.  In  this 
we  have  legislative  interpretation  to  the  ef- 
fect that  the  ordinary  and  Judge  of  the  Pre- 
rogative Court,  and  likewise  ttteir  Jurisdic- 
tion, are  one  and  the  same. 

Enough  has  been  shown,  I  tliink,  to  demon- 
strate that  the  act  imder  which  tills  assess- 
ment was  made,  and  which  gives  an  appeal 
to  the  ordinary,  treats  the  ordinary  and  the 
Prerogative  Court  as  one  and  the  same — a 
single  Judicial  entity. 

[3]  The  giving  of  an  appeal  to  the  ordi- 
nary in  the  Inheritance  transfer  tax  act  is  a 
valid  legislative  enactment 

It  may  be  that  certiorari  in  tbe  Supreme 
Court  is  a  method  for  the  review  of  an  ap- 
praisement or  tax  made  or  levied  under  the 
inheritance  transfer  tax  act,  but  considering 
that  an  appeal  haa  been  provided  to  the  or- 


dinary, the  Supreme  Court  would  probably 
deny  the  allocatur  on  such  a  writ  before,  or 
even  after,  the  time  for  appeal  to  the  ordi- 
nary had  expired,  as  the  allowance  of  an  al- 
locatur is  discretionary.  Florenzie  v.  East 
Orange,  88  N.  X  Law,  438,  97  AtL  260. 

In  Re  Prudential  Ins.  Co.  of  America,  82 
K  J.  ESq.  335,  88  Aa.  970,  the  Court  of  Er- 
rors and  Appeals  held  that  the  statutory 
scheme  providing  for  the  condemnation  of 
the  capital  stock  of  a  stock  life  insurance 
company  for  certain  purposes  mentioned  was 
cast  by  tbe  Legislature  upon  the  chancellor, 
or  the  Court  of  Chancery,  a  distinction  wlilcit, 
if  it  exists,  was  of  no  practical  moment  to 
the  motion  then  before  the  Court  of  E^^^ors 
and  Appeals,  and  at  page  339  that  the  statu- 
tory proceeding  before  that  court  was  review- 
able by  certiorari  only,  regardless  of  the  fact 
that  one  of  the  agencies  that  took  part  in  it 
was  the  "Court  of  Chancery." 

I  bold  that  the  proceeding  before  me  is  one 
in  the  Prerogative  Court,  and  one  which  the 
ordinary  could  lawfully  refer  by  virtue  of 
the  act  of  1913  (P.  L.  p.  81)  empowering  him 
to  refer  to  any  vice  ordinary  any  cause  or 
other  matter  which  at  any  time  might  be 
pending  in  the  Prerogative  Court 

Now,  the  act  of  1909  (P.  L.  p.  325)  pro- 
vides for  taxing  the  transfer  of  property  of 
decedents  by  devise,  descent,  etc.,  and  section 
18,  as  seen,  allows  any  one  dissatisfied  with 
an  a^essment  of  such  taxes  to  appeal  to  the 
ordinary.  The  only  question  raised  by  such 
an  appeal  is  as  to  whether  or  not  the  assess- 
ment is  excessive,  and  the  review  of  such  a 
question  may  be  devolved  upon  a  court  of  ap- 
peal. Florenzie  v.  East  Orange,  88  N.  J. 
Law,  438,  97  Atl.  260.  There  an  appeal  from 
an  assessment  for  benefits  for  a  municipal 
improvement  was  confided  to  the  circuit 
court,  and  the  Jurisdiction  thus  given  was 
upheld.  Here  an  appeal  from  the  assess- 
ment of  a  property  transfer  tax  is  confided 
to  the  ordinary  of  the  Prerogative  Court 
The  principle  is  the  same.  The  grant  of  ap- 
pellate Jurisdiction  to  this  court  in  tax  trans- 
fer matters  is  as  valid  as  that  to  the  circuit 
courts  in  assessments  for  munidpal  improve- 
ments. 

[4]  The  reason  that  legislation  establish- 
ing special  statutory  tribunals  for  the  hear- 
ing and  determining  of  appeals  theretofore 
cognizable  only  in  the  Supreme  Court  on  cer- 
tiorari is  valid  is  because  a  review  of  the 
decision  of  the  special  tribunal  is  removable 
into  the  Supreme  Court  by  certiorari,  and 
that  court's  Jurisdiction  on  certiorari  is  there- 
fore not  impaired.  Certiorari  in  such  cases 
is  in  the  nature  of  an  appeal,  and  aji  appeal 
Is  a  Judicial  proceeding  cognizable  in  a  court 

[S]  It  would  appear  that  the  decree  of  the 
Prerogative  Court  on  these  appeals  is  re- 
viewable by  certiorari  in  the  'Supreme  Court, 
Instead  of  by  appeal  to  the  Court  of  Errors 
and  Appeals.  In  re  Prudential  Ins.  Oo.  of 
America,  82  N.  J.  Eq.  335,  339,  88  Atl.  970; 
Florenzie  t.  Bast  Orange,  88  N.  J.  Law,  438, 


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MATEREA  v.  ERIE!  R.  CO. 


69 


440,  97  Atl.  260.  This  qnestlon  is  snggested 
in  the  brle£s,  but  Is  not  before  me  for  deci- 
sion. 

The  jurisdlctioaal  qnestfam  having  been  de- 
termhied,  I  will,  upon  application  of  counsel, 
designate  a  day  for  hearing  the  facts. 


(90  N.  J.  Law.  4ET) 

MATERKA  v.  ERIE  B.  00. 

(Supreme  Court  of  New  Jersey.     June  6^ 
1917.) 

fSyllabiM  by  the  Court.) 
J.  Tbiai.  «=s>139(1)— Jury— Wbioht  or  Tbsti- 

HONT. 
It  is  for  the  jury  to  say  what  weight  shall 
be  given  to  the  testimony  of  a  witness  having 
an  opportunity  to  hear,  standing  at  or  near  the 
crossing  where  the  accident  occurred,  and  wfao 
testiiies  that  he  did  not  hear  the  blowing  of  a 
whistle  or  the  ringing  of  a  tfeU,  in  a  grade  cross- 
ing acddent  case. 

[E:d.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  H  832,  333,  33Sr^41.] 
2.  Railroads  *=>350(1)  —  Grade  Crossiwg 

AcciDEUT— Nbgligencz  and  Conthibutort 

Nbguoence— Question  for  Jurt. 
It  was  not  error  in  this  case  to  refuse  to 
direct  a  verdict  in  favor  of  the  defendant  on 
the  ground  there  was  no  proof  of  negligence 
on  the  part  of  the  defendant  or  because  the  de- 
cedent was  guilty  of  contributory  negligence. 
They  were  both  jury  questions.  Holmes  v. 
Pennsylvania  R.  R.  Co.,  74  N.  J.  Law,  468,  66 
Ati.  412,  12  Ann.  Cas.  1031,  Weiss  v.  Central 
R.  R.  Co.,  76  N.  J.  Law,  348,  69  Atl.  1087, 
and  Howe  v.  Northern  R.  R.  Co.,  78  N.  J.  Law, 
6S3,  76  Atl.  979,  distinguished. 

[Kd.  Note.— For  other  cases,  see  Railroads, 
Cent,  Dig.  §  1152.] 

Appeal  from  Circuit  Court,  Hudson  County. 

Action  by  Mary  Materka,  administratrix, 
etc.,  against  the  Erie  Railroad  Comx>any. 
Judgment  for  plaintiff,  and  defendant  ap- 
peals.   Affirmed. 

Argued  November  term,  1916,  before 
TREINCHARD  and  BLACK,  JJ. 

Collins  ft  Corbin  and  George  S.  Hobart,  all 
of  Jersey  City,  for  appellant.  Alexander 
Simpson,  of  Jersey  City,  for  respondent. 

BLACK,  J.  This  action  was  brought  by 
the  plaintiff,  as  administratrix  of  Ferdinand 
Materka,  to  recover  damages  for  the  benefit 
of  his  widow  and  next  of  kin,  by  reason  of 
his  death,  on  September  6,  1912,  by  being 
■truck  by  an  east-bound  express  train,  at 
tbe  Park  Avenue  grade  crossing,  in  the  bor- 
ough of  E2ast  Rutherford  and  Rutherford, 
B«rgen  county,  «iiile  he  was  crossing  the 
tracks  on  foot  At  that  crossing  there  were 
four  tracks,  safety  gates,  and  a  watchman. 
A  rule  to  show  cause  was  allowed,  reserving 
objections  and  exceptions  noted  at  the  trial. 
The  verdict  was  reduced  to  the  sum  of  $4,- 
000.  The  trial  court  refused  to  set  aside  the 
verdict  on  the  ground  that  it  was  against  the 
weight  of  evidence.  The  points  argued  by 
the  appellant  for  a  reversal  of  the  judgment 
are:  First,  there  was  no  proof  of  negligence 
on  the  part  of  the  defendant ;  second,  a  ver- 


dict should  have  been  directed  for  the  defend- 
ant because  of  contributory  negligence  of  the 
decedent,  Ferdinand  Materka  ;  third,  error  in 
the  charge  of  the  trial  judge,  and  In  the  refus- 
al to  charg^e  as  requested,  but  tliis  latter  point 
involves  the  same  points  as  are  in  the  first 
two,  except  as  hereinafter  noted.  This  is  the 
second  trial  of  the  case.  The  judgment  re- 
covered in  the  first  trial  was  reversed  by  the 
Supreme  Court  for  trial  errors.  The  judg- 
ment of  the  Supreme  Court  was  affirmed  by 
the  Oonrt  of  Errors  and  Appeals.  In  the  re- 
port of  the  case  the  facts  are  quite  fully  and 
satisfactorily  stated.  Materka  v.  Erie  R.  R. 
Co.,  88  N.  J.  Law,  372,  95  AU.  612. 

[1,2]  The  crux  of  the  case  la  whether 
there  was  evidence  from  which  the  jury 
might  find  that  the  decedent  attempted  to 
make  the  crossing  while  the  safety  gates 
were  up  and  without  receiving  any  warning 
from  the  flagman;  that  the  train  which 
struck  the  decedent  approached  the  cross- 
ing without  giving  the  statutory  signals  of 
ringing  a  bell  or  sounding  a  steam  whistle. 
The  record  cdiows  the  following  testimony: 
David  Harris,  a  witness,  testified: 

"Q.  Were  the  gates  up  when  you  crossed  over? 
A.  Ye.  •  •  •  I  crossed  into  East  Ruth- 
erford,  and  I  saw  this  gentleman  get  oft  this  trol- 
ley car  and  crosa  the  railroad  tracks.  Q.  Were 
the  gates  up  when  he  crossed?  A.  The  gates 
were  up  on  one — ^yes.  Q.  On  your  side?  A. 
The  side  I  crossed  the  gate  was  up  on,  yes.  Q. 
That  is  the  side  he  entered  the  tracks  from? 
A.  That  is  the  side  he  entered  the  tracks  on. 
Q.  When  he  came  from  the  trolley  car  and  went 
on  the  tracks  the  gates  were  up,  I  understand? 
A.  That  is  right,  sir.  Q.  Aft«r  he  got  on  the 
tracks  what  occurred?  A.  Why,  that  gate  on 
the  Rutherford  side  went  down.  Q.  Yes?  A. 
And  the  gate  on  the  East  Rutherford  side  was 
up.  Q.  Yes?  A.  And  I  passed  a  remark.  Q. 
You  cannot  tell  what  you  said,  just  what  you 
saw.  You  saw  this?  A.  I  saw  this  man  cross 
the  tracks,  and  there  was  a  train  coming  down 
the  track,  and  I  said  to  myself,  'I  don't  think 
he  will  get  across,'  and  with  that  I  saw  the 
man  hit.  •  *  •  Q.  Did  you  hear  any  whistle 
or  bell  up  to  the  time  you  saw  him  hit?  A.  I 
did  not,  sir." 

On  cross-examination: 

"Q.  Ton  did  not  know  it  was  coming?   A.  No, 


sir.    Q.  You  were  not  listening  for  it?    A.  No, 

sir.    Q.  Not  pa. "  _       . 

A.  No,  sir.    Q.  I  understand  you  to  say,  how- 


Not  paying  any  attention  to  it  at  all? 


ever,  that  you  did  see  it  coming;  is  that  rij^ht. 
you  did  see  the  train  coming  before  it  struck 
Mr.  Materka?  A.  Yes.  (Witness  marks  on  a 
photograph,  Exhibit  F-6,  where  he  was  stand- 
ing at  that  time.)" 

Redirect: 

"Q.  Now  Mr.  Hobart  asked  you  if  jrpu  were 
listening  fo^  the  express  train.  You  did  not 
know  it  was  coming  until  you  saw  it,  did  you? 
A.  No,  sir.  Q.  And  from  the  time  you  started 
across  the  crossing  up  to  and  until  the  time  you 
saw  the  express  train  had  you  heard  any  whistle 
or  bell  of  any  kind?    A.  No,  sir." 

Genevieve  Ruth  Saxly  a  witness  standing 
at  the  crossing  at  the  time  of  the  accident, 
did  not  hear  any  whistle  before  the  decedent 
was  struck.  She  said  she  was  not  listening 
for  whistles. 

Under  the  rule  laid  down  in  the  cases,  in 


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70 


101  ATLAJITIG  BEFOR.TBB 


(Pa. 


the  CSourt  of  Errora  and  Appeals  of  tbis  state, 
such  as  Danskin  r.  Pennsylvania  R.  B.  Co., 
83  N.  J.  Law,  522,  526,  83  Atl.  1006,  Horandt 
V.  Central  R.  B.  Co.,  81  N.  J.  Lew,  490,  83 
AtL  511,  Watbel  T.  West  Jersey,  etc.,  B.  R. 
Co.,  87  N.  J.  Law,  573,  94  AtL  951,  and  Mc- 
Lean T.  Krle  R.  B.  Co.,  69  N.  J.  Law,  57,  60, 
54  Ati.  238,  affirmed  70  N.  J,  Law,  337,  67 
Atl.  1132,  this  evidenne  was  for  the  Jury,  it 
made  a  Jury  question.  The  point  cannot  be 
removed  from  the  domain  of  the  Jury. 

The  cases  of  Holmes  v.  Pennsylvania  B. 
B.,  74  N.  J.  Law,  469,  66  Atl.  412,  12  Ann. 
Oas.  1031,  Weiss  v.  Central  B.  B.  Co.,  76 
N.  J.  Law,  348,  69  AtL  1087,  and  Howe  v. 
Northern  B.  B.  Co.,  78  N.  J.  Law,  683,  76  Atl. 
979,  distinguished.  So  contributory  negli- 
gence of  the  decedent  was  also  a  Jury  ques- 
tion under  sadi  cases  as  Brown  v.  EMe  B.  B. 
Co.,  87  N.  J.  Law,  487,  91  Aa  1023,  and 
Femettl  v.  West  Jersey,  etc.,  B.  B.  Co.,  87  M. 
J.  Law,  268,  93  AU.  578. 

This  disposes  of  the  case,  except  It  Is  fur- 
ther urged  that  there  was  error  in  the  re- 
fusal of  the  trial  court  to  charge  each  of 
two  specific  requests  in  reference  to  the  stat- 
utory signals  and  the  operation  of  the  cross- 
ing gates;  each  request  covers  separate 
charges  of  negligence.  The  Judgment  must 
be  reversed,  so  it  is  argued,  because  the  trial 
judge  permitted  the  Jury  to  base  a  verdict 
upon  either  ground,  notwithstanding  the  spe- 
cific requests  submitted  by  the  defendant 
with  respect  to  each  allegation  of  negligence. 
The  court  in  the  charge  to  the  Jury  had 
covered  each  ground  fully,  accurately,  and 
clearly.  The  requests  refused  were,  In  effect, 
to  take  the  case  from  the  Jury;  hence  this 
was  not  error,  in  view  of  the  cases  above 
cited. 

The  Judgment  of  the  Hudson  circuit  court 
is  affirmed,  with  costs. 


(266  Pa.  608) 

WEIL  V.   MARQUIS. 

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

1.  EXECTJTOKS  AWD  Administbators  «=>426— 
."'ETTiNO  Aside  Acts  of  Decedent— Bene- 
fit OF  Creditors. 

An  executor  or  administrator  may  bring  an 
action  to  set  aside  the  fraudulent  transactions  of 
the  deceased  for  the  benefit  of  creditors,  whose 
trustee  he  is. 

rEd.  Note. — For  other  cases,  see  Executors  and 
Administrators,  Cent  Dig.  $S  ^^^,  1665.] 

2.  Executors  and  Administrators  ®=»426— 
Death  of  Transferor  —  Administrator's 
Action  for  Benefit  of  Creditors. 

A  tronsfer  of  property  in  fraud  of  creditors 
is  a  nullity,  and,  after  the  transferor's  death,  an 
action  is  maintainable  by  his  administrator  as 
trustee  to  recover  so  much  of  the  property  trans- 
ferred as  may  be  needed  to  pay  just  claims  of 
creditors. 

[Ed.  Note.— For  other  cases,  see  Executors  and 
.'V'iministrators,  Cent  Dig.  §§  1663,  16C5.] 


3.  Insurance    «s>586—BKMEnciABiXB— Vest- 
ed Interest. 

Where  the  insured  took  out  life  insurance 
policies  payable  to  his  wife  and  did  not  exercise 
his  right  to  change  his  beneficiary  during  his  life- 
time, the  widow's  interest  in  the  policies  on  bis 
death  became  a  vested  interest 

[HM.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  S  1470.] 

4.  Insurance  «=»590— Beneficiary— Liabili- 
ty OF  FuKD  foe  Debts. 

Act  April  15,  1868  (P.  L.  103),  providing 
that  Insurance  money  payable  to  the  wife  and 
children  of  an  assured  shall  be  free  from  the 
claim  of  creditors,  governed  where  an  intestate 
who  bad  taken  out  life  insurance  policies  pay- 
able to  his  wife  and  died  without  having  ezep- 
cised  the  right  to  change  the  beneficiary,  and 
where  the  widow  collected  the  insurance  money 
amounting  to  less  than  his  debts,  so  that  she 
was  entiUed  to  hold  the  proceeds  as  against  the 
insured's  administratrix  sning  for  money  had 
and  received:  Act  May  1,  1OT6  (P.  L.  53),  Act 
June  1,  1011  (P.  L.  581),  and  Act  May  5,  1915 
(P.  L.  253),  relating  to  other  forms  of  insur- 
ance and  to  beneficiaries,  not  applying. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  U  1479,  1482,  1485.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  money  had  and  received  by 
Nita  M.  Weil,  administratrix  of  the  estate  of 
Abraham  Marquis,  deceased,  against  Jeanette 
A.  Marquis.  From  an  order  discharging  a 
rule  for  Judgment  for  want  of  a  sufficient 
affidavit  of  defense,  plaintiff  appeals.  Affirm- 
ed. 

The  facts'  appear  In  the  following  opinion 
by  Audenrled,  P.  J.,  in  the  court  below: 

Abraham  Marquis  died  August  14,  1914,  intes- 
tate and  insolvent  lie  had  taken  out  sundry 
policies  of  insurance  upon  his  life,  each  of  whidi 
was  made  payable  to  the  defendant,  his  wife, 
subject  however,  to  the  provision  that  he  might 
change  the  beneficiary  thereunder.  He  died  with- 
out having  exercised  that  right,  and  his  widow 
collected  the  money  payable  on  these  poUdes, 
which  amounted  to  much  less  than  his  debts. 
Letters  of  administration  upon  the  e.state  of 
Marquis  have  been  granted  to  tlie  plaintiff,  who 
has  brought  this  action  against  his  widow  to  re- 
cover what  tho  latter  received  from  the  insur- 
ance companies. 

Upon  these  facts,  which  are  not  denied  by  the 
defendant,  the  plaintiff  asks  judgment  for  either 
tlie  amount  of  the  proceeds  collected  on  the  poli- 
cies or  the  amount  of  their  surrender  value  im- 
mediately before  the  death  of  the  insured ;  both 
amounts  being  ascertainable  from  the  affidavit  of 
defense. 

[1,2]  As  to  the  first  question  discussed  by 
counsel,  we  have  no  doubt  While  an  executor 
or  administrator,  as  the  mere  personal  repre- 
sentative of  a  decedent,  can  take  no  step  to  set 
aside  for  the  benefit  of  heirs,  next  of  kin,  lega- 
tees, or  devisees,  the  fraudulent  transactions  of 
the  deceased,  his  right  to  do  so  for  the  benefit 
of  the  creditors,  whose  trustee  he  is,  has  long 
been  recognized  in  tbis  state.  Chester  County 
Trust  Co.  V.  Pugh,  241  Pa.  124,  88  Atl.  319.  50 
I...  B.  A.  (N.  S.)  320,  Ann.  Cas.  1915B,  211. 
A  transfer  of  property  in  fraud  of  creditors  is 
a  nullity  as  against  the  interests  attempted  to 
be  defrauded^  and,  after  the  death  of  the  trans- 
feror, an  acti(m  is  maintainable  by  his  admin- 
istrator, as  their  trustee  for  the  recovery  of  as 
much  of  the  property  so  transferred  as  may  be 
needed  for  the  payment  of  their  just  claims. 
Buchler  v.  Gloninger,  2  Watts,  226;    Stewart  v. 


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WEIL  ▼.  MARQUIS 


71 


Kewney,  6  Watts,  483,  81  Am.  Dec.  4SZ.  WbUe 
the  atatement  of  claim  doea  not  allege  actual 
frand  in  the  dealings  of  the  defendant  with  her 
husband  in  tespect  to  the  policies  of  insnranc* 
procured  b;  the  latter  upon  his  life,  it  is  argued 
that  the  facts  above  mentioned  make  oat  a  case 
of  constructive  fraad.  We  think  that,  if  this 
contention  can  be  sustained,  the  right  of  the 
plaintiff  to  a  recovery  against  the  defendant  Is 
dear. 

Several  acts  of  assembly  have  been  referred  to 
by  counsel  as  bearing  on  the  matter  before  the 
coart,  and  our  next  inquiry,  therefore,  is  wheth- 
er these  have  any  application  to  the  case. 

The  most  recent  legislation  on  the  subject  of 
life  insurance  policies  such  as  those  referred  to 
in  the  plaintiff's  statement  is  the  Act  of  May 
5,  1915,  P.  L.  253.  By  its  terms,  this  statuts 
relates  to  policies  of  life  iaaurance  "which  have 
heretofore  or  which  shall  be  hereafter  taken  out 
for  the  benefit  of,  or  assigned  to,  the  wife  or 
children,  or  any  other  relative  dependent  upon" 
the  person  whose  life  is  insured.  Grammatical- 
ly, the  use  of  the  perfect  tense  of  the  verb  ia  the 
clause  "which  have  heretofore  (been)  taken  out" 
seems  to  imply  that  the  policies  therein  referred 
to  were  existing  policies  that  had  not,  when  the 
act  became  effective,  matured  and  been  paid. 
If  this  clause  were  construed  to  embrace  all  poli- 
cies that  bad  been  issued  prior  to  the  passage  of 
the  act,  thus  including  those  with  respect  to 
whose  proceeds  rights  had  already  vested,  the 
act,  to  that  extent,  would  violate  both  section 
17  of  article  1  of  the  CSonstitution  of  Pennsyl- 
vania and  clause  1  of  section  10,  art.  1,  of  the 
Constitution  of  the  United  States,  since  it  would 
impair  the  obligation  of  contract  by  depriving 
creiditors  of  their  remedy,  an  impediment,  in  the 
shape  of  an  exemption  which  did  not  exist  when 
their  debts  were  contracted,  being  placed  in  the 
w^ay  of  collecting  them.  Penrose  v.  Erie  Canal 
Co.,  56  Pa.  46;  Edwards  v.  Kearzey,  96  U.  S. 
595,  24  L.  Ed.  793;  Kener  v.  Le  Grange  Mills, 
231  U.  S.  215,  34  Sup.  Ct.  83.  58  L.  Ed.  189. 
We  are  of  opinion  therefore,  that  this  act  does 
not  affect  the  case  before  us. 

Nor  does  section  25  of  the  Act  of  May  1,  1876 
(P.  L.  60)  apply.  The  provisions  of  that  sec^ 
ticm  are  expressly  confined  to  policies  issued  by 
companies  incorporated  under  tlie  act  of  which 
it  forma  a  part.  It  does  not  appear,  and  the 
court  cannot  assume,  that  the  Insurance  compa- 
nies that  issued  the  policies  referred  to  in  this 
case  were  so  incorporated. 

Section  27  of  the  Act  of  June  1,  1911,  P.  L. 
•581,  provides  as  follows:  "A  policy  of  insurance 
issued  by  any  company,  heretofore  or  hereafter 
incorporated,  on  the  life  of  any  person,  expressed 
to  be  for  the  benefit  of  any  married  woman, 
whether  procured  by  herself,  her  husband,  or 
any  other  person,  shall  inure  to  her  separate  use 
and  benefit  and  that  of  her  children,  independ- 
ently of  her  husband  or  his  creditors,  or  the  pei^ 
son  effecting  the  same  or  his  creditors.  If  the 
premium  is  paid  by  any  person  with  intent  to  de- 
fraud his  creditors,  an  amount  equal  to  the  pre- 
mium so  paid,  with  interest  thereon,  shall  inure 
to  their  benefit."  Unless  this  enactment  is  held 
to  be  retrospective  in  its  operation,  it  does  not 
apply  to  the  policies  involved  in  this  case.  The 
last  of  these  to  be  issued  was  taken  out  more 
than  nine  months  before  it  became  a  law.  But 
the  act  is  not,  in  this  respect,  retroactive.  The 
use  of  the  present  tense  of  the  verb  in  the  con- 
ditional part  of  the  second  sentence  of  the  sec- 
tion quoted  plainly  indicates  that  no  reference  to 
policies  previously  issued  is  intended;  and,  if 
its  language  were  otherwise,  no  effect  could  be 
given  to  it,  so  far  as  concerns  such  policies,  for 
the  saue  constitutional  reasons  that  are  referred 
to  above  in  discussing  the  Act  of  May  5,  1915. 
Moreover,  even  if  it  was  intended  to  change  the 
law  as  to  the  rights  of  creditors  in  respect  to 
policies  of  life  insurance  theretofore  issued,  no- 
tice of  such  an  intention  is  wholly  lackiug  in  the 
title  of  the  act;   Bad  the  attempt  to  make  such 


a  change  was  therefore  futile.  Section  3,  art.  3, 
Constitution  of  Peonsylvama.  When  the  subject 
expressed  in  the  title  of  an  act  is  not  broad 
enough  to  cover  all  its  provisions,  such  parts  of 
the  act  as  are  not  within  the  purview  of  the  ti- 
Ue  are  void.  Hatfield  v.  Com.,  120  Pa.  895.  14 
Atl.  151 ;  Potter  County  Water  Ca  v.  Austin 
Borough,  206  Pa.  297,  65  AtL  991. 

So  far  as  our  examination  of  the  acts  of  as- 
sembly goes,  the  only  legislation  that  bears  upon 
the  question  involved  in  these  rules  is  section  1 
of  the  Act  of  April  15,  1868  (P.  L..  103).  This 
reads  as  follows:  "All  policies  of  life  insurance 
or  annuities  upon  the  life  of  any  person  which 
may  hereafter  mature,  and  which  have  been  or 
shall  be  taken  out  for  the  benefit  of,  or  bona 
fide  assigned  to  the  wife  or  children  or  any 
relative  dependent  upon  such  pereon,  shall  be 
vested  in  such  wife  or  children  or  other  relative, 
full  and  clear  of  all  claims  of  the  creditors  of 
such  person." 

It  is  conceded  by  the  plaintiff  that,  if  the  pol- 
icies in  question  were  within  the  scope  of  this 
act,  judgment  must  be^entered  in  favor  of  the 
defendant.  It  is  contended,  however,  that  they 
do  not  fall  within  either  of  the  two  classes  of 
policies  which  the  statute  was  intended  to  pro- 
tect from  the  creditors  of  the  person  who  has 
taken  them  out  and  paid  their  premiums. 

From  the  affidavit  of  defense  it  is  impossible 
to  determine  how  the  policies  whose  proceeds 
are  in  dispute  were  originally  issued.  All  that 
appears  is  that  the  defendant  was,  prior  to  the 
death  of  her  husband,  the  beneficiary  thereun- 
der, and  that  he  had  the  right  to  appoint  anoth- 
er as  beneficiary  in  her  place. 

It  is  argued  on  behalf  of  the  plaintiff  that,  if 
the  policies  when  originally  issued  were  made 
payable  to  the  defendant  subject  to  the  condi- 
tion that  her  husband  should  not  designate  some 
other  person  as  payee  of  their  proceeds,  they 
were  taken  out  by  hira  for  his  own  benefit  and 
not  for  here;  and  that  consequently  the  case 
docs  not  fall  within  the  first  of  the  two  cate- 
gories embraced  by  the  act.  It  is  further  ar- 
gued that,  if  the  policies  were  issued  in  the 
name  of  the  insured,  they  are  not  within  the  sec- 
oud  class  to  which  the  act  refers,  because  the 
'Wife  took  no  interest  in  them  uuder  the  subse- 
quent assignment  thereof  to  her ;  the  reserva- 
tion to  the  insured  of  the  right  to  change  the 
beneficiary  securing  full  control  of  the  policies 
to  him  and  leaving  him,  therefore,  dBeir  real 
owner. 

Although  the  policy  of  the  law,  even  where 
the  rights  of  creditors  may  be  adversely  affected, 
favors  the  wife  to  whom  her  husband  has  at- 
tempted to  secure  the  benefit  of  insurance  upon 
his  life  (Kulp  v.  March.  181  Pa.  627,  37  Atl. 
913,  59  Am.  St.  Rep.  687),  the  argument  of  the 
plaintiff  thus  summarized  is  of  great  weight, 
and,  if  the  creditors  had  attempted  to  reach 
the  policies  during  the  lifetime  of  the  insured, 
we  can  see  no  reason  why  they  should  not  have 
been  successful  (In  re  Herr  [No.  2  D.  C]  182 
Fed.  716;  In  re  Jamison  Bros.  &  Co.  [D.  C] 
222  Fed.  92;  In  re  Shoemaker  [D.  O.]  225  Fed. 
329). 

[3,  4]  Nevertheless,  the  facts  presented  by  this 
case  differ  in  a  very  important  point  from  those 
involved  in  the  bankruptcy  cases  to  which  refer- 
ence has  been  made.  Here  the  insured  is  no 
longer  living.  He  had,  it  is  true,  reserved  to 
himself  under  his  insurance  contracts  the  option 
of  letting  them  inure  to  the  benefit  of  his  wife 
or  appointing  some  other  beneficiary  in  her 
stead.  This  he  might  have  exercised  whenever 
he  saw  fit  during  his  life,  but  it  ended  at  the 
very  instant  of  his  death.  It  did  not  survive 
him.  See  McDonald,  ISx'x,  v.  Columbian  Na- 
tional Life  Insurance  Co.,  253  Pa.  239,  97  AU. 
1088,  U  R.  A.  1910F,  1244.  The  moment  he 
bt'eathed  his  last,  the  happening  of  the  condition 
subsequent  whicn  might  have  divested  the  de- 
fendant's rights  in  the  policies  became  impos- 
sible.   If  up  to  that  time  her  interest  in  the 


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polidea  amounted  to  notbinc  more  tban  a  bare 
expectancy,  that  expectancy  them  ripened,  and 
ber  interest  in  the  policies  and  their  proceeds 
immediately  became  a  vested  one. 

Thus  the  air  was  cleared;  and  the  position 
of  the  creditors  became  forthwith  what  it  would 
have  been  if,  when  the  p<^ciea  were  originally 
issued  or  subsequently  assigned  to  ber,  no  right 
to  change  their  beneficiary  bad  been  reserved 
by  the  insured.  Setting  aside  the  question  of 
fraud,  any  right  that  the  creditors  of  Marquis 
or  their  representative  had  to  object  to  the  stat- 
ute as  a  bar  to  the  appropriation  of  the  policies 
of  insurance  on  his  life  payable  to  his  wife  to 
the  discbarge  of  their  claims  against  him  rested 
solely  on  the  ground  that  he  still  held  a  control 
over  them  equivalent  to  ownership.  That  foun- 
dation has  slipped  away.  As  the  case  now 
stands,  the  disposition  of  the  proceeds  of  the  pol- 
icies is  governed  by  the  Act  of  April  15,  1868. 

If  the  defendant's  rights  as  beneficiary  re- 
sulted from  the  assignment  of  the  policies  to  her 
by  her  husband,  it  would,  of  course,  be  poegible 
to  attack  them,  under  the  Act  of  13  £}liz.  C.  S., 
on  the  ground  of  fraud.  The  Act  of  1868  pro- 
tects such  assignments  only  when  bona  fide. 
Although  the  assignment  in  this  case,  if  there 
was  an  assignment,  was  made  by  an  insolvent 
to  his  vrife,  with  a  reservation  of  power  to  con- 
trol the  disposition  of  the  policies  as  he  pleased, 
the  court  cannot  declare  the  transaction,  how- 
ever suspicious  it  may  be,  fraudulent  per  se. 
The  statement  of  claim  raises  no  question  of 
fraud  in  fact;  but,  if  fraud  were  alleged,  the 
question  of  the  good  faith  of  the  defendant  and 
ber  husband  would  necessarily  take  the  case  to 
the  jury,  to  whose  province  such  questions  pecu- 
liarly appertain.  Sebring  v.  Brickley,  7  Pa, 
Super.  Ct.  198. 

Argued  before  BROWN,  0.  J.,  and  STEW- 
ART, MOSCHZISKEB,  FRAZEE,  and  VfAIr 
UNO,  JJ. 

Morris  Wolf  and  Horace  Stem,  both  of 
Philadelphia,  for  appellant.  Hampton  L.  Car- 
son and  Joseph  Carson,  both  of  Philadelphia, 
for  appellee. 

PER  CURIAM.  This  appeal  is  dismissed 
on  the  opinion  of  the  learned  president  Judge 
of  the  court  below  discharging  the  rules  for 
Judgment  for  want  of  a  sufficient  affidavit 
of  defense. 


(25S  P>.  SiO) 

COMMONWEALTH    T.   STAUSH. 

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

1.  Cbimiistai,      Law      <g=»980(2) — Plea      of 
Guilty— Sentence— Statute. 

Act  March  31,  1860  (P.  L.  402)  §  74,  pro- 
viding that,  where  a  defendant  pleads  guilty 
to  an  indictment  for  murder,  the  court  shaU 
proceed  by  examination  of  witnesses  to  determine 
the  degree  of  the  crime,  must  be  strictiy  con- 
strued, and  thereunder  the  examination  of  wit- 
nesses by  the  court  means  the  seeing  and  heai^ 
ing  of  the  witnesses,  and  a  mere  reading  of  their 
testimony  by  a  judge  or  judges  who  did  not  see 
or  hear  them  is  not  a  compliance  with  the  act 
[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  IS  2494,  2495.] 

2.  Cbiminai,      Iaaw      <S=»  980(2) —Plea      of 
GurLTT—SENTENCE— Statute. 

Under  such  provision,  every  member  of  a 
court  passing  upon  the  degree  of  guilt  must 
see  and  hear  the  witnesBPs  upon  whose  testimony 
the  degree  of  homicide  is  to  to  be  determined, 
and   where   three  of  the  five  judges  heard   the 


testimony  and  thereafter  the  president  judge 
who  was  not  present  during  the  examination  of 
witnesses  read  the  evidence,  and  joined  in  the 
deliberations,  and  wrote  the  court's  opinion 
fixing  the  crime  as  murder  in  the  first  degree 
the  judgment  would  be  reversed,  and  a  proceden- 
do awarded  with  leave  to  defendant  to  renew  in 
the  court  below  a  motion  to  withdraw  his  plea 
of  guilty. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Ont  Dig.  |i  2494,  2495.] 

Appeal  from  Ck>urt  of  Oyer  and  Terminer, 
Luzerne  Ciounty. 

John  Staush  was  convicted  of  murder  in 
the  first  degree,  and  he  appeals.  Reversed, 
and  procedendo  awarded  with  leave  to  de- 
fendant to  renew  in  court  below  his  motion 
for  leave  to  withdraw  his  plea  of  guilty. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
WALLING,  JJ, 

M.  J.  Torllnski  and  George  Howorth,  both 
of  Wllkes-Barre,  for  appellant.  Frank  P. 
Slattery,  Dlst.  Atty.  of  Luzerne  County,  and 
Edwin  Shortz,  Jr.,  Asst.  Dlst  Atty.,  both  of 
Wllkes-Barre,  for  the  (Tommonwealth. 

BROWN,  0.  J.  [1]  John  Staush,  the  ap- 
pellant, entered  a  plea  of  guilty  to  an  in- 
dictment charging  him  with  murder,  and  it 
thereupon  became  the  duty  of  the  court  be- 
low, under  section  74  of  the  act  of  March 
31,  1860  (P.  Lw  402),  to  "proceed,  by  examina- 
tion of  witnesses,  to  determine  the  degree 
of  the  crime,  and  to  give  sentence  accord- 
ingly." Three  of  the  five  Judges  of  that 
court  m^  to  perform  the  duty  Imposed  up- 
on it,  and  witnesses  were  examined  before 
them.  At  the  examination  the  common- 
wealth was  represented  by  the  district  attor- 
ney, and  the  prisoner,  with  his  counsel,  was 
present.  The  testimony  was  taken  down  by 
the  court  stenographer,  whose  transcript  of 
the  same  was  duly  approved  by  one  of  the 
Judges  and  ordered  to  be  filed.  After  the 
hearing,  and  before  the  three  Judges  had 
reached  any  conclusion  as  to  tlie  degree  of 
the  prisoner's  guilt,  they  asked  the  president 
Judge  of  the  court — who  had  not  been  pres- 
ent at  the  examination  of  the  witnesses— 
to  Join  them  in  their  consideration  of  the 
testimony  taken,  for  the  purpose  of  fixing 
the  degree  of  the  crime.  After  reading  the 
evidence,  he  took  part  In  their  deliberation, 
and  found  that  the  prisoner  was  guilty  of 
murder  of  the  first  degree.  Subsequently 
he  wrote  the  opinion  of  the  court,  fixing  the 
degree  of  guilt,  and  pronounced  the  Judg- 
ment of  death.  The  real  error  of  which  the 
appellant  complains — and  the  only  one  up- 
on which  we  need  pass — Is  the  action  of  the 
court  below  in  having  its  president  Judge 
consult  with  his  three  colleagues  over  a 
most  solemn  question,  involving  life,  without 
hds  having  seen  or  heard  the  witnesses  up- 
on whose  testimony  it  was  to  be  determined. 

A  tribunal,  specially  designated  by  the 
Legislature,  fixes  the  degree  of  guilt,  xipon 


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WOOD  T.  WILUAM  KANE  MFG.  CO. 


78 


ccmvlctlon  by  confession,  <mi  an  indictment 
charging  mnrder.  Such  a  case  is  no  longer 
for  a  Jory,  wbose  province  it  is  to  fix  tlie  de- 
gree of  bmnlcide  in  every  case  where  the 
Bccnsed  goes  to  trial  on  his  plea  ol  not  guil- 
ty. The  Legislature  might  have  provided 
that,  on  a  plea  of  guilty,  a  Jury  should  beer 
the  testimony  relating  to  the  crime  for  the 
sole  purpose  of  fixing  the  degree  of  guilt; 
bat  it  has  not  done  so.  It  has  committed 
that  duty  to  the  court  having  Jurisdiction 
of  the  indictment,  and  perhaps  wisely  so,  in 
view  of  homan  sympatliy  to  which  Jurors 
not  infrequently  yield  when  called  to  pass 
upon  the  life  or  death  of  a  fellow  man.  To 
enable  It  to  discharge  tills  duty  the  court 
must  examine  witnesses  and  hear  what  they 
know  and  are  able  to  trutlifully  tell  of  the 
circumstances  attending  the  admitted  feloni- 
ous killing.  As  this  statutory  provision,  re- 
lating to  a  criminal  procedure,  must  be  strict- 
ly construed,  the  examination  of  witnesses 
by  the  court  means  its  seeing  and  hearing 
them,  not  a  mere  reading  of  their  testimony 
by  a  Judge  or  Judges  who  neither  saw  nor 
beard  them,  and  it  means  that  every  m&a- 
ber  of  a  court  passing  upon  the  degree  of 
gnilt  in  a  homicide  case  must  see  and  hear 
the  witnesses  upon  whose  testimony  the 
question  is  to  be  determined.  If  it  had  been 
for  a  Jury  to  determine  the  degree  of  the 
appellant's  guilt,  and  but  eight  of  the  Jurors 
had  seen  and  heard  the  witnesses,  a  verdict 
of  the  twelve  condemning  him  to  death 
would  be  promptly  set  aside,  if  the  other 
fbur  Jurors  had  simply  read  the  testimony 
of  the  witnesses  from  the  stenographer's 
notes;  and  yet  this,  in  efl^ect,  la  the  situa- 
tion here  presented. 

[2]  The  court  below,  composed  of  four  of 
its  five  members,  found  the  prisoner  guilty 
of  mnrder  of  the  first  degree^  They  were 
his  triers;  they  deliberated  together  over 
what  their  verdict  should  be,  and,  after  so 
deliberating,  fixed  his  crime  as  the  highest 
known  to  the  law;  but  one  of  them  had 
nether  seen  nor  heard  a  single  witness 
called  to  sustain  the  commonwealth  in  ask- 
ing for  a  first  degree  finding,  or  the  plea  of 
the  prisoner  that  intoxication  had  reduced 
the  degree  of  his  oITense.  One  of  the  three 
Judges  who  heard  the  witnesses  limg  hes- 
itated In  reaching  his  conclusion,  and  If 
the  fourth,  who  heard  none  of  them,  had 
heard  them  all,  he  might  also  not  only  have 
long  hesitated,  but  actually  refused  to  con- 
cur In  the  finding  of  first  degree  murder. 
In  findings  of  fact  by  a  Judge,  sitting  as  a 
dianodlor,  the  credibility  of  witnesses  and 
the  wel^t  to  be  given  to  their  testimony 
are  for  him,  and  their  credibility  Is  often 
sustained  or  Impaired  by  their  appearance 
on  the  witness  stand  and  by  their  manner  of 
testifying.  If  this  is  true  in  dvil  cases,  it 
is  snrely  true  in  a  proceeding  in  a  criminal 
court  in  which  a  human  life  is  at  stake. 


We  are  not  to  be  understood  as  saying,  or 
even  intimating,  that  on  the  testimony  of 
the  witnesses  seen  and  heard  by  the  three 
learned  Judges  of  the  court  below  they  would 
have  erred  in  adjudging  the  prisoner  guilty 
of  murder  of  the  first  degree;  for  that  is 
not  the  question  before  us.  All  that  we  now 
decide  is  that  error  was  committed  in  hav- 
ing the  president  Judge  take  part,  under  £be 
drctunstances  stated,  in  a  consultation  and 
deliberation  which  resulted  in  a  finding  nec- 
essarily followed  by  the  Judgement  from 
which  we  have  this  appeaL 

Judgment  reversed,  and  procedendo  award- 
ed, with  leave  to  the  prisoner  to  renew  in 
the  court  below  his  motion  for  leave  to  with- 
draw his  plea  of  guilty. 

"°°°^~  (ST  Pa.  IS) 

WOOD  V.  WILLIAM  KANE  MTG.  CO.,  Inc. 

(Supremo  Court  of  Pennsylvania.    March  6, 
1917.) 

1.  Mabtkb  ano  SsBVAirr  «=390  —  Mabikb's 
Duty— Extent. 

The  mere  relation  of  master  and  servant 
does  not  imply  an  obligation  on  the  master  to 
take  more  care  of  the  servant  tlian  he  may  rea- 
sonably be  expected  to  take  of  himself. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  §  139.] 

2.  Master  and  Sekvant  «=s>265(12)— Neom- 

QENCB— El(PI.OTI(KNT  OF  SEBVANTS. 

The  presumption  is  that  an  employer  has 
exercised  proper  care  in  the  selection  of  its  em- 
ployes, and  one  charging  negligence  in  the  em- 
ployment of  men  must  show  it  by  proper  evi- 
dence. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  H  891,  906.] 

3.  Masteb  and  Sebvant  ®=9l60(6)  —  AonoN 
FOR  Injubt—Nequobhcb— Evidence. 

Where  plaintiff  in  charge  of  rivetuig  boilers 
was  suppUed  by  his  employer  with  helpers,  and 
where  one  of  the  helpers,  not  shown  to  be  in- 
competent, and  who  was  not  instructed  by  plain- 
tiff as  to  his  duties,  accidentally  let  go  of  the 
base  of  a  boiler  so  that  it  fell  upon  plaintiff, 
there  was  no  negligence  on  the  part  of  defend- 
ant, and  the  court  should  have  directed  a  verdict 
for  it 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  U  302,  307.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  tor  personal  injury 
by  Thomas  Wood  against  the  William  BCaue 
Manufacturing  Company,  Incorporated.  Ver- 
dict for  plalntiflT  for  $2,000  and  Judgment 
thereon,  and  defendant  appeals.  Reversed, 
and  Judgment  entered  for  defendant 

Argued  before  MESTREZAT,  POTTER, 
STEWART,  MOSCHZISKER,  and  FRA- 
ZER,  JJ. 

Frank  P.  Pridiard,  of  Philadelphia,  for  ap- 
pellant John  J.  McDevltt,  Jr.,  and  Samuel 
G.  Stem,  both  of  Philadelphia,  for  appellee. 

POTTER,  J.  This  was  an  action  of  tres- 
ixiss  to  recover  damages  for  personal  inju- 


AssTor  othsr 


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rles.  Plaintiff,  who  had  the  management  of 
the  boiler  making  shop  of  the  defendant  com- 
pany, charged  his  employer  with  negligence 
in  falling  to  provide  an  experienced  helper, 
which,  as  he  alleged,  resulted  in  his  injuries. 
He  was  supplied  with  helpers,  varying  in 
number  from  three  to  six,  who  received  In- 
structions from  him.  On  the  day  of  the  acci- 
dent, plaintiff  was  engaged  In  riveting  the 
base  of  an  upright  boiler.  The  base  was  not 
a  perfect  cylinder,  but  was  smaller  at  the 
top  than  at  the  bottom.  It  was  about  14 
Inches  high,  and  weighed  about  250  pounds. 
PlalntlfT  suspended  It  by  two  hoolcs  from  a 
crane,  and  asked  two  of  the  helpers  to  steady 
It  while  he  applied  a  pneumatic  riveter.  In 
order  to  secure  proper  contact  it  was  appar- 
ently necessary  to  tilt  the  base  slightly.  The 
pneumatic  riveter  was  applied  under  some 
pressure  to  the  side  of  the  base,  aAd  when  It 
was  withdrawn,  one  of  the  helpers  let  go  of 
the  base,  and  it  slipped  from  the  hooks  and 
fell,  injuring  plaintiff's  hand.  It  appears 
from  the  evidence  that  Gordon,  the  helper 
in  question,  had  been  employed  in  the  estab- 
lishment about  a  year,  but  had  never  been 
called  upon  to  assist  in  steadying  a  base  of 
that  particular  description.  It  was,  as  plain- 
tiff said,  "something  out  of  the  ordinary" 
as  to  shape,  and  he  liad  made  but  five  of  them 
during  a  period  of  three  years.  Plaintiff 
gave  no  instruction  to  the  helper,  Gordon,  as 
to  steadying  the  base  while  the  riveting  was 
being  done.  The  service  required  was  not 
complicated,  or  difficult  to  perform.  There 
is  nothing  In  the  evidence  to  show  that  the 
young  man  was  Incapable.  He  seems  to  have 
been  taken  by  surprise  at  the  effect  upon  the 
base  of  the  removal  of  the  pressure,  and 
faQed  to  hold  on  steadily.  A  word  of  caution 
in  advance  from  the  plaintiff,  who  was  stand- 
ing close  by,  would,  no  doubt,  have  prevented 
the  accident  It  cannot  justly  be  charged  to 
any  lack  of  experience,  upon  the  part  of  the 
helper,  in  assisting  to  steady  a  piece  of  metal 
of  that  particular  size  and  shape.  It  may 
very  well  be  that,  for  the  performance  of 
complicated  or  difficult  work  involving  dan- 
ger, an  employer  would  be  bound  to  furnish 
not  only  competent,  but  experienced,  men, 
especially  for  leadership  and  supervision. 
But  in  the  present  case,  the  plaintiff  himself 
was  supervising  the  work,  and  the  part  which 
the  helper  was  called  upon  to  perform  was  of 
the  simplest  possible  character.  He  was 
asked  to  hold  but  little  weight,  and  was  mere- 
ly to  lay  his  hand  upon  the  base  to  help 
steady  it,  while  supported  by  the  hooks. 

II]  If  any  instruction  or  warning  was  need- 
ed to  aid  him  in  the  discharge  of  this  very 
simple  duty,  the  necessity  for  It  arose  upon 
the  instant,  and  the  word  of  caution  should 
have  come  from  the  plaintiff,  who  was  in 
immediate  charge  of  the  operation.  The 
mere  relation  of  master  and  servant  can  nev- 
er imply  an  obligation  upon  the  part  of  the 
master  to  take  more  care  of  the  servant  than 


he  may  reasonably  be  e:tpeeted  to  take  of 
himself. 

[2,  3]  The  presumption  is  that  the  employer 
has  exercised  proper  care  in  the  selection  of 
employes,  and  it  is  incumbent  upon  one 
charging  negligence,  in  the  employment  of 
men,  to  show  it  by  proper  evidence.  The 
plaintiff  here  was  acquainted  with  the  help- 
er, and  knew  he  had  been  working  in  the 
shop  for  at  least  a  year.  The  evidence  shows 
no  suggestion  that  any  complaint  as  to  incom- 
petence upon  the  part  of  the  helper  was  ever 
made  by  the  plaintiff,  or  any  one  else.  The 
fact  that  he  was  employed  merely  as  a  helper 
is  in  itself  an  indication  that,  having  prop- 
er capacity,  he  was  expected  to  gain  skill  in 
the  work  and  knowledge  of  its  details,  under 
the  guidance  and  instruction  of  more  ex- 
perienced men,  such  as  plalntifl,  with  whom 
he  was  associated. 

We  find  nothing  in  this  record  to  Justify 
placing  the  legal  responsibility  for  the  re- 
sults of  the  accident  upon  the  defendant. 

The  first  assignment  of  error  Is  sustained, 
the  judgment  is  reversed,  and  is  here  entered 
for  defendant. 

(257  Pa.  M) 

MUIiHERN  et  al.  v.  PHIIADELPHIA 
HOME-MADE  BREAD  CO. 

(Supreme  C!ourt  of  Pennsylvania.     March  5, 
1917.) 

1.  MtmiCIPAI,    OOBPOBATIONS   «=3705(3)— UsK 

or  Stbeet— Gabk  as  to  Childrkii. 
Special  caution  on  the  part  of  driven  pf 
vehicles  is  requi/ed  for  the  protection  of  chil- 
dren congreg:ating  in  the  vicinity  of  a  school- 
house. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  S  1515.] 

2.  MCNIOIPAI,    COBPORATIONS    €=706(6)— UsE 

OF  Streets— Nbqlioenck  or  Driver  or  Ve- 

HioiJ! — Question  fob  Juey. 

In  an  action  for  damages  for  personal  in- 
jury to  a  school  child  from  being  ran  over  by  a 
wagon,  held,  on  the  evidence,  that  whether  the 
driver's  failure  to  stop  it  or  turn  aside  to 
avoid  the  injury  was  negligence  was  a  qnes- 
tion  for  the  jury. 

[BM.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1518.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  Injuries 
by  Anna  Mulhem,  by  her  father  and  next 
friend,  WiUiam  J.  Mulhem,  and  by  WilUam 
J.  Mulhem  in  his  own  right  against  the 
Philadelphia  Home-Made  Bread  Cktmpany. 
Verdict  for  plaintiff  Anna  Mulhem  for  $2,- 
000,  and  for  plaintiff  William  J.  Mulhem  for 
$200,  and  judgment  thereon,  and  defendant 
appeals.    Affirmed. 

Argued  before  MESTREZAT.  POTTER, 
STEWART,  MOSCHZISKER,  and  FRA2^ 
ER,  JJ. 

William  H.  Peace,  of  Philadelphia,  for  ap- 
pellant. John  Martin  Doyle  and  Eugene 
Raymond,  both  of  Philadelphia,  for  appel- 
lees. 


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HARDIB  ▼.  BARRETT 


76 


POTTEIR,  J.  These  appeals  are  grounded 
npon  the  refusal  of  the  conrt  below  to  give 
binding  Instructions  In  fiivor  of  the  defend- 
ant, or  to  enter  Judgment  non  obstante  vere- 
dicto. It  appears  from  the  testimony  that 
abont  noon  on  February  4,  1909,  some  school 
children  just  released  from,  school  were 
walking  and  sliding  upon  the  ley  sidewalk 
on  the  south  side  of  Tasker  street  near  Eight- 
eenth. Anna  Mulhem,  a  child  some  ten 
years  of  age,  fell  or  was  pushed  over  the 
curb  Into  the  edge  of  the  driveway  of  the 
street  as  a  wagon  driven  by  an  employ^  of 
defendant  was  approaching,  the  right-band 
wheels  running  near  the  curb.  The  horse 
was  turned  somewhat  aside,  but  the  front 
wheel  of  the  wagon  ran  over  the  little  girl's 
leg  and  broke  it  The  question  for  determi- 
nation was  whether  the  driver,  by  the  exer- 
cise of  proper  care,  should  have  seen  the 
child  after  It  fell  and  was  lying  partly  in 
the  street  ahead  of  him  in  time  to  stop  his 
wagon,  or  torn  it  aside  to  avoid  the  accident, 
and  whether  his  failure  to  do  so  was  negli- 
gence. 

A  bystander  testified  that  he  saw  the  child 
lying  partly  in  the  gutter  when  the  wagon 
was  some  30  feet  distant,  and  he  said  that 
the  driver  was  not  then  looking  ahead,  but 
was  at  the  moment  looking  backward  into 
the  body  of  his  wagon.  The  Jury  may  well 
have  found  that  the  proximity  of  a  number 
of  children  upon  the  sidewalk  at  the  side  of 
the  street  upon  which  he  was  driving  and 
the  well-known  tendency  of  children  to  make 
sudden  and  heedless  dashes  should  have  put 
the  driver  upon  his  guard  at  that  particular 
place,  at  least  to  the  extent  of  keeping  bis 
horse  well  in  hand. 

[1]  It  is  common  knowledge  that  special 
caution  is  required  for  the  protection  of  chil- 
dren who  congregate  in  the  vicinity  of  a 
schooUionse.  The  plalntifiF  Anna  Mulhem 
testified  that  after  she  had  fallen  down  and 
was  lying  partly  in  the  gutter  she  saw  the 
wagon  coming  along  the  street  some  30  to  60 
feet  away  from  her.  If  this  was  the  fact, 
the  driver  could  have  stopped  his  wagon  or 
tamed  it  aside  before  reaching  her,  if  he 
was  moving  at  a  proper  rate  of  speed  and 
bad  his  horse  under  proper  control. 

[2]  On  the  other  hand,  the  evidence  upon 
the  part  of  defendant  tended  to  show  that 
the  child  came  so  suddenly  and  unexpectedly 
from  the  sidewalk  Into  the  line  of  travel  In 
the  street  that  the  accident  was  unavoidable. 
If  this  was  the  case,  defendant  should  not 
have  been  held  responsible. 

Coimsel  for  appellant  has  contended  with 
great  earnestness  that  the  trial  Judge  should 
have  held  as  matter  of  law  that  the  evidence 
did  not  Justify  an  inference  of  negligence 
npon  the  part  of  the  driver.  But  we  are  un- 
able to  agree  with  his  contention  tn  this  re- 
spect. As  we  read  the  evidence,  the  question 
was  purely  one  of  twA  upon  conflicting  state-  i 


menta  by  the  witnesses.  If  the  Jury  accept- 
ed as  credible  the  evidence  offered  by  the 
plaintiff,  they  were  Justified  in  inferring  neg- 
ligence ui)on  the  part  of  the  driver.  Bad 
they  accepted  as  accurate  the  testimony  on 
behalf  of  the  defendant,  they  must  have 
concluded  that  the  driver  was  not  at  fault 
in  any  way,  and  the  verdict  would  have  been 
for  the  defendant.  We  may  feel  that  the 
Jury  might  very  properly  have  reached  an- 
other conclusion,  but  the  question  of  fact  in 
dispute  was  for  them  to  decide.  To  the 
charge  of  the  court  in  submitting  the  case 
no  exception  was  taken. 
The  Judgment  is  a£Brmed. 


(2CT  Pa.  «) 
HARDIE  et  ux.  v.  BAHRETT. 

(Supreme   Court  of   Pennsylvania.     Uarch   6, 
1917.) 

1.  HlOHWATS    ®=3l75(l)— HiBED    AUTOKOBILB 

— Injury — Contbibutoky  Neouoence. 
When,  the  dangers  arising  from  the  negligent 
operation  of  a  hired  automobile  in  which  one 
is  riding  as  an  invited  guest  are  manifest  to 
a  passenger  having  an  adequate  opportunity  to 
control  the  situation,  and  he  permits  himself 
without  protest  to  be  driven  to  his  injury,  he 
is  fixed  with  his  own  negligence  which  bars  a 
recovery. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  {§  461-464.] 

2.  Highways    ®=al75(l)  — CotusioN  — Con- 

TBIBUTOBY   NEOLIGENCE. 

Where  a  husband  and  wife  hired  an  auto- 
mobile driven  by  the  owner's  chauffeur  and 
made  no  effort  to  have  the  chauffeur  drive  at 
a  proper  speed  and  on  the  right  side  of  the 
street,  they  would  be  guilty  of  contributory  negli- 
gence barring  their  recovery  for  injuries  from 
a  collision. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  iS  461-464.] 

3.  Highways  ©=»175(1)— Pebsonai,  Ihjubt— 
Neouoence— Pboximate  Cause. 

In  an  action  by  a  husband  and  wife  for  per- 
sonal Injuries  when  the  hired  automobile  in 
which  they  were  riding  in  New  Jersey  collided 
with  defendant's  wagon  during  a  time  when  the 
New  Jersey  law  required  that  it  display  lights, 
the  fact  that  there  were  no  lights  on  defendant's 
wagon,  if  not  the  proximate  cause  of  the  acci- 
dent, even  though  negligence,  would  not  justify 
a  recovery. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  {(  461-164.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  injuries 
by  James  G.  Hardie  an'd  Olive  M.  Hardie, 
his  wife,  and  James  G.  Hardie  against  Wil- 
liam M.  Barrett,  as  president  of  the  Adams 
Express  Company,  a  Joint-stock  association 
under  the  laws  of  New  York.  Verdict  for 
defendant  and  Judgment  thereon,  and  plain- 
tiffs appeal.    AflSrmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSCHZISKER,  FRAZER,  and  WAI^ 
LING,  JJ. 


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101  ATIiANTIC  REPORXEB 


(Pa. 


Sydney  Toung,  of  Fblladelplila,  tar  appel- 
iants.  John  Lewla  Evans  and  Thomas  D&- 
Witt  Cuyler,  both  of  Phlladelpbla,  for  ap- 
pellee. 

MOSCHZISKER,  3.  On  the  evening  of 
August  22,  1913,  James  G.  Hardle,  and  Olive 
M.,  his  wife,  hired  an  automobile  with  its 
driver,  one  Louis  S.  Chester,  Jr.,  to  convey 
them,  with  two  women  guests,  from  Sea  Isle 
City,  N.  J.,  to  a  nearby  yacht  club.  On  the 
way  a  collision  occurred  between  the  car  in 
which  they  were  riding  and  a  one-horse  ex- 
press wagon  belonging  to  the  defendant  com- 
pany. Both  Mr.  Hardle  and  his  wife  were 
injured ;  they  sued  for  Vlamages,  and  by  ex- 
press agreement  of  record  their  cases  were 
tried  together,  the  issues  Involved  were  sub- 
mitted to  the  Jury,  and  in  each  Instance  the 
verdict  favored  the  defendant,  judgments 
were  entered  accordingly,  and  the  plalntUTs 
have  appealed. 

The  testimony  on  all  the  Important  Issues 
was  most  conflicting;  but,  when  vlewefd  In 
the  light  of  the  verdicts  rendered,  the  fol- 
lowing facts  can  be  found  th«%from:  The 
accident  happened  on  a  rainy  evening,  be- 
tween 8:30  and  0  o'clock.  Mr.  Hardle  occu- 
pied a  front  seat  In  the  automobile,  t>eside 
the  chauffeur,  while  Mrs.  Hardle,  her  moth- 
er and  the  other  woman  were  In  the  tonneao. 
The  car  was  equipped  with  five  lights,  "two 
large  acetylene  gas  lamps  on  the  head,  two 
on  the  side,  and  one  rM  light  In  the  rear." 
The  headlights  Illuminated  the  road  so  that 
one  In  the  car  "could  see  200  feet  in  front," 
and  made  the  way  "bright  enough  to  see  dis- 
tinctly the  curb."  The  part  of  the  road  upon 
which  the  accident  happened  had  a  curb  on 
the  west  side  and  a  single  track  trolley  line 
on  the  east,  with  a  space  of  22  feet  between. 
The  automobile  was  traveling  southward,  on 
the  left-hany,  or  wrong,  side  of  the  road,  at 
an  estimated  speed  of  40  miles  an  hour. 
The  wagcm  was  traveling  northward  on  the 
right-hand,  or  proper,  side  of  the  road,  tJie 
horse  going  at  "a  very  slow  trot."  The  driv- 
er of  the  latter  vehicle.  In  an  endeavor  to 
avoid  the  collision,  had  his  horse  "nearly 
half  way  over"  the  trolley  track  when  the  ac- 
cident occurred.  The  nutoraobile  struck  the 
wagon  on  the  near  front  wheel;  both  ve- 
hicles were  badly  damaged. 

On  the  foregoing  facts,  It  may  be  seen 
that  the  chauffeur,  and  not  the  'driver  of  the 
horse  and  wagon,  was  the  one  guilty  of  the 
negligence  which  caused  the  accident;  but 
the  plaintiffs  complain  that  the  trial  judge 
committed  substantial  error  by  the  manner 
in  which  he  submitted  certain  Issues  to  the 
jury.  In  disposing  of  these  complaints,  we 
shall  first  consider  together  assignments  1 
and  2. 

In  brief,  the  trial  judge  Instructed  that,  if 
the  automobile  was  being  driven  with  "man- 
ifest improper  speed,"  or  U  the  chauffeur 


had  his  car  "manifestly  on  the  wrong  place 
in  the  road,"  and  these  faults,  or  either  o£ 
them,  contributed  to  the  happening  of  the  ac- 
cident, If  the  plaintiffs  made  no  effort  to  "get 
him  to  go  at  a  proper  rate  of  speed"  or  "over 
on  the  right  side  of  the  road,"  they  would 
be  guilty  of  contributory  negligence,  but  that 
they  could  not  be  found  so  guilty  unless  the 
before-mentioned  alleged  faults  on  the  part 
of  the  chauffeur  were  "manifest" 

In  reviewing  these  instructions.  It  must 
be  kept  in  mind  that  the  plaintiffs  did  not 
endeavor  to  excuse  the  fact  that  the  chauf- 
feur was  on  the  wrong  side  of  the  road  by 
explaining  he  was  temporarily  and  justifia- 
bly out  of  the  regular  track;  on  the  contrary, 
they  called  him  as  their  witness,  and  each 
of  them  gave  testimony  to  substantiate  his 
story  that,  at  the  time  of  the  accident  and 
prior  thereto,  he  had  been  continually  driv- 
ing on  the  proper  side  of  the  road,  at  a  speed 
not  exceeding  15  miles  an  hour,  which  was 
much  lowered  Immediately  before  the  colli- 
don.  Both  plaintiffs  not  only  stood  upon 
but  reiterated  this  account  of  the  manner  in 
which  the  automobile  was  alleged  to  have 
been  handled ;  and,  of  course,  ex  necessitate, 
it  excluded  the  possibility  of  a  remonstrance 
on  their  part  having  been  made  to  the  chauf- 
feur, by  eliminating  all  possible  reasons 
therefor.  Moreover,  the  plaintiffs'  attitude 
at  trial.  In  a  manner,  adopted,  or  set  their 
seal  of  approval  upon,  the  chauffeur's  real 
conduct,  as  the  jury  found  it  to  be. 

[1]  The  rule  is  well  established  that,  when 
p<»slble  dangers  arising  out  of  the  negligent 
operation  of  a  hired  vehicle  or  a  conveyance 
In  which  one  Is  riding  as  an  invited  guest 
are  manifest  to  a  passenger  who  has  any  ad- 
equate opportunity  to  control  the  situation, 
if  he  sits  by  without  protest  and  permits 
himself  to  be  driven  on  to  his  Injury,  this 
is  negligence  which  will  bar  recovery.  In 
other  words,  the  negligence  of  the  driver  ia 
not  Imputed  to  the  passenger,  but  the  latter 
Is  fixed  with  his  own  negligence  when  he 
joins  the  former  In  testing  manifest  dangers. 
For  discussion  and,  in  some  instances,  ap- 
plication of  this  rule,  see  Township  of  Cres- 
cent V.  Anderson.  114  Pa.  643,  8  AtL  379,  00 
Am.  Rep.  367 ;  Dean  v.  Penna.  B.  R.  Co.,  129 
Pa.  614,  18  AU.  718,  6  L.  R.  A.  143,  15  Am. 
St  Rep.  733;  Winner  v.  Oakland  Township, 
158  Pa.  405,  27  Att.  1110,  1111;  Dryden  v. 
Penna.  R.  B.  Co.,  211  Pa.  620,  61  Atl.  249; 
Thompson  v.  Penna.  B.  R.  Co.,  215  Pa.  113, 
64  Atl.  323,  7  Ann.  Cas.  351;  Kunkle  v.  Lan- 
caster County,  219  Pa.  52,  67  AU.  918;  Walsh 
V.  Altoona  &  Logan  Val.  Elec.  Ry.  Ca,  232 
Pa.  479,  81  AtL  551 ;  Wachsmlth  v.  Balto.  & 
Ohio  R.  R.  Co.,  233  Pa.  465,  82  AO.  755,  Ann. 
Cas.  1913B,  679 ;  Trumbower  v.  Lehigh  Val- 
ley Transit  Co.,  235  Pa.  397.  84  AtL  403; 
Senft  V.  Western  Marj-land  Railway  Co.,  246 
Pa.  446,  92  Atl.  553;  Dunlap  v.  Philadel- 
phia Rapid  Transit  Co.,  248  Pa.  130,  93  AtL 
873. 


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KinSHNE  ▼.  BROWIT 


77 


(2, 3]  Here,  the  <deftr,  string,  preponderat- 
ing eTidence  shows  that  the  chauftenr  was 
seea  by  numerous  disinterested  witnesses, 
fiome  three  or  four  blocks  north  from  the 
point  of  the  accident,  driving  In  a  reckless 
manner,  at  an  estimated  siieed  of  40  miles 
an  hour,  on  the  wrong  side  of  the  road,  quite 
close  to  the  trolley  track ;  furthermore^  the 
aVlmisslons  of  the  plaintiffs  show  that  they 
both  were  famUlar  with  automobiles  and 
able  to  appreciate  the  possible  dangers  of 
this  highly  improjier  course  of  conduct.  Aa 
already  Indicated,  since  the  story  told  by  the 
plaintiffs,  as  to  the  management  of  the  mo- 
tor was  rejected  by  the  Jury,  the  position 
assumed  by  tbe  former  at  trial  left  but  one 
conclusion  i>osslble;  1.  e.,  that  they  had  Join- 
ed the  chauffeur  In  testing  the  dangers  of 
the  situation  created  by  the  way  in  which  the 
car  was  in  fact  being  driven.  Under  the  cir- 
cnmstances,  we  see  UO  error  In  the  instruc- 
tions complained  of. 

At  this  point  it  is  but  fair  to  say  that  the 
instructions  in  question  were  coupleJd  with  a 
correct  and  fair  presentation  of  the  plain- 
tiffs' side  of  the  case,  and  the  Jurors  were 
plainly  told  that,  if  they  believed  the  latter's 
testimooy,  they  should  render  a  verdict  ac- 
cordingly. 

One  other  assignment  calls  for  considera- 
tion. There  Is  an  act  of  assembly  in  New 
Jersey  which  requires  all  vehicles  to  have 
lights  displayed  thereon  during  specified 
hours,  covering  the  time  when  this  accident 
happened ;  and  the  defendant  admitted  there 
was  no  light  on  its  wagon.  The  trial  Judge 
directed  attention  to  this  state  of  affairs,  and 
Instructed  the  Jurors  that.  If  the  absence  of 
a  light  "contributed  to  the  accident,  If  that 

•  ♦  ♦  prevented  the  plaintiffs'  chauffeur 
from  seeing  the  horse  and  wagon,  that  may 
be  considered  by  you  as  an  act  of  negligence 
which  caused   the   accident;     •     *    •    and, 

•  •  ♦  llf  •  •  •  there  was  no  negli- 
gence on  the  part  of  the  plaintiffs,  the  plain- 
tiffs would  be  entitled  to  your  verdict" 
nieae  instructions  were  practically  the 
last  word  to  the  Jury,  and  we  tliink  them 
as  ftvorable  to  appellants  as  they  had  a 
right  to  expect  Had  there  been  a  light 
on  the  wagon,  it  might  have  saved  the  plain- 
tiffs from  the  result  of  their  own  negli- 
gence In  permitting  the  car  occupied  by 
them  to  be  driven  in  the  manner  in  which 
it  was  operated  on  the  night  of  the  accident; 
but  even  this  Is  hardly  probable,  since  the 
plaintiffs  said  the  acetylene  gaslights  on  the 
front  of  their  automobile  enabled  them  to 
see  at  least  200  feet  ahead.  On  the  other 
hand,  if  the  absence  of  a  light  on  the  wagon 
was  not  the  proximate  cause  of  the  accl'dent, 
even  though  an  act  of  negligence  on  the  part 
of  the  defendant,  it  would  not  Justify  recov- 
ery by  the  plaintiffs  (Christner  v.  Cumber- 
land &  Elk  I.lck  Coal  Co.,  146  Pa.  67,  23  AU. 


221);    and  this  In  effect  is  what  the  trial 
Judge  said  to  the  Jury. 

The  ,  assignments  of  error  are-  overruled, 
and  the  Judgments  affirmed. 


(26T  Pa.  37) 
KUEHNE  v.  BROWN. 

(Supreme  Court  of  Pennsylvania.    March  5, 
1917.) 

1.  MtJWiciPAi,  CoRPOBAnoNS  <S=s>70e(6)— Op- 
kration  of  automobili  —  negligence  — 
Question  for  Jury. 

In  an  action  for  injury  from  the  negligent 
operation  of  an  automobile,  where  the  evidence 
of  defendant's  failure  to  blow  his  horn  was  only 
negative,  and  there  was  no  positive  evidence 
that  h&  gave  such  warning,  the  weight  of  the 
negative  evidence  was  for  the  jury. 

[Ed.  Note. — ^For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  f  1518.] 

2.  MuNicrPAL  Corporations  <8=>706(3)— Op- 
EKATioN  OF  Automobile  —  I^st  —  Nkou- 

eXNCE. 

In  action  for  personal  injury  to  a  child 
struck  by  an  automobile  while  m  a  highway  be- 
tween crossings,  the  test  of  defendant's  liability 
was  whether  in  the  exercise  of  due  care  he 
should  have  seen  the  child  in  time  to-  have 
avoided  injury. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1515.] 

3.  MnNiciPAL  Corporations  <S=>706(e)— Op- 
eration OF  Autohobile— Personal  Injury 
—Question  foe  Jubt. 

In  such  action,  held,  on  the  evidence,  that 
whether  defendant  was  negligent  in  not  seeiag 
the  child  in  time  to  have  avoided  the  Injury  was 
for  the  jury. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1618.] 

4.  Municipal  Corporations  i®=9706(6)— Op- 
eration or  AUTOUOBILE  —  Neoligenoe  — 
Question  fob  Jubt. 

In  a  father's  action  In  his  own  right  for 
injury  to  minor  child  by  defendant's  automobile, 
conflicting  testimony  as  to  its  speed  and  dis- 
tance retjuired  to  come  to  a  stop  made  a  ques- 
tion for  jury  as  to  defendant's  negligence  in  op- 
erating the  car. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1518.] 

6.  Parent  and  Child  «=s>7(9)— Operation  of 
Automobile— Injury   to   Child— Pabhnt's 
Contributory  Neoliqence. 
Where  the  father  of  a  child,  suing  jointly 
with  him  for  personal  injury  from  defendant's 
automobiie,  had  permitted  the  child  to  cross  a 
highway  when  the  automobile  was  approaching 
only   75  feet  away,  notwithstanding   his  state- 
ment   that    he    looked    in    both    directions    and 
saw  nothing  approaching,  he  was  guilty  of  con- 
tributory negligence  barring  a  recovery  in  his 
own  right 

[Ed.  Note.— For  other  oases,  see  Parent  and 
Child.  Cent  Dig.  §  94.] 

Appeal  from  Court  of  Common  Pleas, 
Philadelphia  Oount?. 

Trespass  by  Paul  Kuehne,  Jr.,  by  his  fa- 
ther and  next  friend,  Paul  Kuehne,  and  by 
Paul  Kuehne,  In  his  own  right,  against 
George  H.  Brown,  to  recover  for  personal  In- 
juries to  the  minor  plaintiff.  Compulsory 
nonsuit  entered  as  to  both  plaintiffs,  which 
the  court  subsequently  refused  to  take  off. 


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and  plaintiffs  appeal.  AiBrmed  as  to  one 
plaintiff,  and  reversed  as  to  the  other. 

Argued  liefore  BROWN,  O.  J.,  and  MES- 
TRBZAT,  POTTER,  STEWART,  and  FRA- 
ZER,  JJ. 

W.  Horace  Hepburn,  Jr.,  of  Philadelphia, 
for  appellant. 

FRAZER,  J.  This  is  an  action  by  a  father 
and  his  minor  child  to  recover  for  injuries  to 
the  latter  sustained  by  reason  of  alleged  neg- 
ligence of  defendEint  in  operating  his  automo- 
bile. A  nonsuit  was  entered  by  tJie  court 
below  as  to  both  plaintiffs,  and  from  this  ac- 
tion they  have  appealed. 

At  the  time  of  the  accident,  September  6, 
1915,  the  plaintiff,  Paul  Kuehne,  Jr.,  was  five 
years  of  age.  He  and  his  father,  the  other 
plaintiff,  were  standing  on  the  west  side  of 
Rising  Sun  Lane,  near  Comly  street,  in  the 
City  of  Philadelphia,  talking  with  friends. 
This  is  a  suburban  section  of  the  city,  and 
Rising  Sun  Lane  is  about  60  feet  in  width, 
with  trolley  tracks  on  each  side  of  the  street, 
and  a  driveway  for  vehicles  in  the  center ;  the 
driveway  being  of  sufficient  width  to  permit 
three  vehicles  to  stand  abreast.  The  street 
Is  vrithout  sidewalks,  but  at  the  place  where 
plaintiffs  were  standing  is  a  platform  con- 
structed of  planks,  and  extending  across  the 
gutter  to  the  car  track.  The  father  with 
his  two  children  were  standing  on  the  plat- 
form referred  to  when  one  of  the  occupants 
of  an  automobile,  occupied  by  the  child's 
mother  and  others  and  standing  on  the  op- 
posite side  of  the  street  from  the  platform 
on  which  the  boy  and  his  father  stood,  called 
to  the  child,  Paul,  that  there  was  room  for 
lilm  in  the  car.  The  boy  immediately  started 
to  cross  the  street,  and  was  about  midway 
between  the  platform  and  the  automobile 
when  he  was  struck  by  defendant's  car,  com- 
ing south  at  a  speed  estimated  by  various 
witnesses  at  from  8  or  10  to  40  miles  an  hour. 
There  is  no  dispute,  however,  that  the  horn 
was  not  blown,  or  other  warning  given  of  its 
ai^roach.  Another  car  was  standing  on 
the  same  side  of  the  street  as  the  car  in 
whidi  Mrs.  Kuehne  was  seated,  100  feet 
down  the  road  in  the  direction  from  which 
defendant's  automobile  approached,  and,  to 
pass  this  car,  defendant  was  obliged  to  turn 
to  the  left  side  of  the  road.  There  were 
no  obstructions  in  the  street  and  nothing  to 
prevent  defendant  from  seeing  the  persons 
standing  on  the  platform  adjoining  the  rail- 
way tracks,  or  the  boy  on  the  street  after 
leaving  the  platform.  The  distance  from 
the  platform  to  the  point  at  which  the  child 
was  injured  was  estimated,  by  the  witnesses, 
at  from  12  to  20  feet.  Witnesses  also  testified 
that  when  the  child  started  to  cross  the  street 
defendant's  automobile  was  in  the  neighbor- 
hood of  75  or  100  feet  away,  and  that  the 
brakes  were  not  applied  to  the  car  until  with- 
in about  6  feet  from  the  child,  and  that  fol- 
lowing the  collision  the  automobile  skidded 


on  the  gravel  road  for  a  distance  of  more 
than  30  feet. 

The  court  below  condnded  the  evidence  of 
negligence  on  the  part  of  defendant  was  in- 
sufficient to  submit  to  the  Jury,  so  far  as  the 
rights  of  the  minor  were  concerned,  for  the 
reason  that  the  accident  did  not  happen  at 
a  street  crossing;  that  the  evidence  of  de- 
fendant's failure  to  give  warning  of  his  ap- 
proach was  negative  only;  and  tliat  there 
was  nothing  to  impose  upon  him  the  duty  of 
blowing  his  horn  at  the  particular  spot  where 
the  accident  happened. 

[1-3]  In  so  far  as  the  question  of  warning 
Is  concerned,  while  the  evidence  of  failure 
to  blow  the  horn  was  negative  only,  there 
was  no  positive  evidence  that  defendant 
gave  such  warning,  consequently,  the  weight 
of  the  negative  evidence  was  for  the  Jury. 
Longenecker  v.  Penna.  R,  B.  Co.,  106  Pa.  328; 
Haverstlek  v.  Penna.  R.  B.  Co.,  171  Pa.  101, 
32  Atl.  1128.  However,  to  the  extent  that  the 
rights  of  the  child  are  concerned,  whether 
or  not  warning  was  given  was  not  a  vital 
matter,  as  there  is  no  question  of  contribu- 
tory negligence  on  his  part,  the  sole  ques- 
tion in  Ills  case  being  whether  defendant, 
in  the  exercise  of  due  care,  should  have  seen 
the  child  In  time  to  avoid  the  accident  The 
evidence  shows  defendant's  view  of  the  road, 
and  of  the  child  on  the  platform  over  the 
gutter  and  also  in  the  street,  was  unob- 
structed, making  the  situation  before  him 
such  as  to  Impose  upon  him  the  use  of  due 
care  to  avoid  injuring  those  who  were  right- 
fully using  the  highway,  even  though  there 
was  no  crossing  at  this  particular  point. 
There  is  evidence  frcHn  which  the  Jury  might 
have  found  that  the  child  did  not  suddenly 
dart  in  front  of  the  car  at  a  time  too  late 
for  defendant  to  avoid  the  accident,  but  on 
the  contrary  that  there  was  ample  oppor- 
tunity to  stop  his  car  had  he  been  looking 
ahead.  If  approaching  at  an  extreme  rate 
of  speed,  as  testified  to  by  several  witnesses, 
and  as  indicated  by  the  skidding  of  the  ma- 
cbine  upon  endeavoring  to  stop,  it  cannot 
be  said,  as  matter  of  law,  that  defendant 
was  performing  his  full  duty  toward  those 
who  were  properly  using  the  highway.  As- 
suming the  car  was  operated  at  the  mini- 
mum rate  of  speed,  testified  to  by  other  wit- 
nesses, no  apparent  excuse  is  shown  for  de- 
fendant not  seeing  the  chUd  in  time  to  stop 
his  car  and  prevent  the  accident,  in  view  of 
the  testimony  as  to  the  distance  whi<4i  he 
traveled  from  the  time  the  child  started  to 
cross  from  the  platform  to  the  autmnoblle, 
and  the  unobstructed  condition  of  the  street 
Consequently,  the  question  whether  he  had 
notice  of  the  presence  of  the  child  in  the 
road  in  time  to  appreciate  the  danger  and 
avoid  a  collision  was  one  for  the  Jury  to 
determine,  under  proper  instructions  from 
the  court  Tatarewicz  v.  United  Traction 
Co.,  220  Pa.  560,  60  Atl.  995;  Bloom  v. 
Wbelan,  56  Pa.  Super.  Ct  277. 
[4,  S]  In  so  far  as  the  rights  of  the  fftttaer 


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are  concerned  tbe  confilctinf  testimony  as  to 
the  veed  of  tbe  car,  together  wltb  tbe  dis- 
tance required  to  oome  to  a  atop,  was  suffl- 
%ient  to  sobmlt  to  tbe  Jury  on  tbe  qneatlon 
of  defendant's  negligence  in  operating  tbe 
car.  As  to  tbe  contributory  negUjience  of 
the  father,  his  testimony  was  that  before 
permitting  tbe  child  to  start  across  the  street 
to  the  automobile  in  which  his  wife  was 
seated  he  looked  in  both  directions  and  saw 
no  car  approaching.  Considering  there  was 
an  unobstmcted  view  of  the  street  for  300 
or  400  yards,  with  the  exception  of  the  pres- 
ence of  another  automobile,  which  was  about 
lOO  feet  distant,  and  In  view  of  tbe  tesd- 
mony  that  defendant's  car  was  approximately 
75  feet  away  when  tbe  child  was  permitted 
to  start  across  the  street,  It  is  useless  for 
plaintiff  to  say  bo  looked  and  did  not  see 
tbe  antomoblle  when  It  mast  have  been  In 
plain  view  at  tbe  time ;  hence  his  negligence 
In  permitting  a  child  of  such  tender  years 
to  cross  the  street  alone  is  too  apparent  to 
require  submission  to  the  Jury.  To  the  ex- 
tent, therefore,  that  the  father  is  concerned, 
the  nonsuit  was  proper.  Glassey  v.  Heston- 
TiUe,  Mantua  &  Falrmount  Pass.  Ry.  Oo.,  67 
Pa.  172;  Johnson  et  ux.  v.  Reading  City 
Pass.  By.,  160  Pa.  647,  28  Atl.  1001,  40  Am. 
St  Rep.  752;  Pollack  v.  Penna.  R.  R.  Oo. 
(No.  2)  210  Pa.  634,  80  Atl.  812,  105  Am.  St 
Rep.  846. 

Tbe  fourth  assignment  of  error  is  sus- 
tained, the  Judgment  is  reversed,  and  the 
record  remitted  wltb  a  new  Tenlre. 


(2S7  Fa.  13) 

In  re  HUNTER'S  ESTATE  et  al. 

(Supreme  (Jourt  of  Pennsylvania.    March  5, 
1917.) 

1.  MoBTOAQES  <S=»559(3)  —  Mortgaoee's  Rb- 
LBA8E  OF  Title— Moktoaoob's  Peesonal 
LiABiLrrr. 

Where  a  mortfi^gee  has  parted  with  his  title 
to  tbe  mortgaged  premises,  his  release  of  part 
thereof  without  the  mortgagor's  knowledge  or 
consent  discharges  the  mortgagor  from  personal 
liability  for  any  loss  to  the  mortgagee  from  a  de- 
ficiency In  the  proceeds  in  a  subsequent  sale  un- 
der foredoBure  proceedinc*,  as  by  such  release 
the  mortgagee  assumes  the  risk  of  the  unreleased 
part  of  the  property. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent  Dig.  i  1592.] 

2.  MoBTOAOKS  «=>568(3)— Penal  Bond— Lia- 

BIUTT. 

In  an  audit  of  tbe  account  of  a  substituted 
trustee  of  an  assigned  estate,  it  appeared  that 
prior  to  tbe  assignment  the  assignor  bad  mort- 
gaged real  estate  and  had  given  a  penal  bond  to 
further  secure  the  mortgage  debt,  and  that  sub- 
sequent to  the  assignment  parts  of  tbe  realty 
were  released  from  the  lien  of  the  mortgage, 
Tithoat  the  mortgagor's  knowledge  or  consent, 
and  that  the  mortgaged  premises  were  after- 
wards sold  for  a  sum  insufficient  to  pay  the 
mortgage.  Held,  that  the  mortgagor  was  dis- 
charged of  any  liability  on  the  bond. 

fEd.  Note. — For  other  cases,  see  Mortgages, 
Cent  Dig.  J  1592.] 


Appeal  from  Court  of  O(nmnon  Pleas,  Phil- 
adelphia. 

Henry  K.  Fox,  execntM-  of  the  estate  of 
Elizabeth  M.  Lassalle,  deceased,  appeals  from 
a  decree  dismissing  exceptions  to  the  report 
of  Charles 'H.  Mathews,  auditor,  in  tbe  mat- 
ter of  tbe  estate  of  James  Hunter  and  John 
Hunter,  individually,  and  as  copartners.  Af- 
firmed. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, MOSCHZISKEB,  FRAZEB,  and  WAL- 
LING, JJ. 

F.  B.  Vogel  and  Henry  K.  Fox,  both  of 
Philadelphia,  for  appellant.  George  Sterner 
and  Charles  R.  Magulre,  both  of  Philadelphia, 
for  appellees. 

WALLING,  J.  This  is  an  appeal  from  a 
decree  of  distribution  of  an  assigned  estate. 
In  1887  John  Hunter  Individually  and  tbe 
firm  of  James  and  John  Hunter  made  a  gen- 
eral assignment  to  John  Field,  for  benefit  of 
creditors.  Prior  thereto  in  1878  said  James 
Hunter  and  John  Hunter,  being  tbe  owners 
of  certain  lands,  comprising  about  32  acres, 
and  situate  near  Fifty-Fifth  street  and  Lan- 
caster avenue,  Philadelphia,  executed  a  mort- 
gage thereon  and  an  accompanying  bond  to 
Wbl  C.  Houston,  administrator,  etc,  to  se- 
cure a  loan  of  $27,000,  payable  in  three  years, 
with  Interest.  Some  days  later  John  Hunter 
conveyed  his  interest  In  tbe  mortgaged  prem- 
ises to  James  Hunter,  who  thereafter  and  be- 
fore the  assignment  executed  a  second  mort- 
gage upon  the  same  property,  by  virtue  of 
which,  subsequent  to  tbe  assignment,  the 
same  was  sold  by  the  sheriff  and  the  title 
thereto,  subject  to  the  prior  mortgage,  be- 
came vested  in  Margaret  D.  Hunter,  who 
died  in  May,  1891,  Intestate.  And  In  Decem- 
ber of  the  same  year,  by  partition  among 
her  heirs,  su^b  title  became  vested  in  Wm. 
D.  Hunter.  Tbere  then  remained  unpaid  on 
the  first  loan  the  sum  of  $10,000.  However, 
such  title  so  vesting  In  Wm.  D.  Hunter  did 
not  Include  all  the  lands  embraced  in  tbe 
original  mortgage,  some  having  been  released 
meantime  as  hereinafter  stated.  On  May  26, 
1891,  tbe  administrator  entered  Judgment 
on  the  bond  accompanying  tbe  first  mortgage; 
and  on  November  18,  1892,  he  assigned  the 
bond  and  mortgage  to  James  M.  Connely,  the 
father-in-law  of  Wm.  D.  Hunter,  for  the  coa- 
sideration  of  $10,000. 

Between  the  date  of  the  assignment  for 
benefit  of  creditors  and  the  time  of  tbe  trans- 
fer of  the  bond  and  mortgage  to  Connely. 
the  holder  of  the  first  mortgage  bad  released 
from  the  Hen  thereof  twelve  separate  pieces 
of  land;  some  of  which  were  released  for 
the  nominal  consideration  of  $1  each.  And 
It  does  not  appear  that  tbe  original  mort- 
gagors, or  their  assignee,  consented  to  such 
release  or  bad  knowledge  thereof.  On  No- 
vember 23,  1894,  at  tbe  Instance  of  Connely 
and  on  the  Judgment  entered  on  tbe  bond 


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as  aforesaid,  all  of  the  nnreleased  part  of  the 
land  Included  in  the  first  mortgage  was  sold 
by  the  sheriff  for  $2,000,  at  which  sale  Con- 
nely  became  the  purchaser,  and  on  the  same 
day  conveyed  a  portion  of  the  premises  so 
bought  by  him  to  James  Dnnlap  for  $15,000. 
Two  months  later  Connely  assigned  the  mort- 
gage and  Judgment  entered  on  the  bond  to 
his  son-in-law,  Wm.  D.  Hunter,  for  the  con- 
sideration of  |1;  and  the  latter  same  day 
reassessed  the  damages  on  the  Judgment  at 
$9,281.66.  And  on  February  7,  1895,  Con- 
nely, also  for  the  consideration  of  $1,  made 
a  deed  to  his  said  son-in-law  for  the  balance 
of  the  land  included  in  the  sheriff's  sale 
"subject  to  existing  incumbrance."  On  the 
5th  of  the  following  June,  Wm.  D.  Hunter 
sold  the  land  conveyed  to  him  by  the  said 
last-named  deed  to  James  B.  Johnson  for 
$12,000,  "clear  of  Incumbrance";  by  various 
transfers,  the  first  mortgage  and  judgment 
on  the  accompanying  bond  became  vested  In 
appellant  In  1907.  Since  that  date  the  judg- 
ment has  been  twice  revived,  and  on  each 
occasion  judgment  was  entered  for  want  of 
an  appearance,  on  two  returns  of  "nihil 
habet."  The  last  of  these  Judgments  was 
entered  February  20,  1914,  at  which  time 
the  damages  were  assessed  at  $22,351.22. 
James  Hunter  died  in  1896,  John  Field  In 
1904,  and  John  Hunter  In  1910.  The  assignee 
filed  a  partial  account  in  18S9  and  a  final  ac- 
count In  1897,  both  being  duly  audited  and 
confirmed,  and  no  claim  being  presented  on 
account  of  the  first  mortgage  and  bond  at 
either  of  the  audita. 

In  1006  Herman  H.  Wilson  was  appointed 
substituted  trustee  in  place  of  John  Field, 
then  deceased.  And  in  1911  the  substituted 
trustee  filed  an  account  showing  a  balance 
In  his  hands  as  the  proceeds  of  a  private 
sale  of  real  estate,  formerly  the  property 
of  John  Hunter.  An  auditor  was  appointed 
to  pass  upon  exceptions  and  report  distribu- 
tion of  the  balance;  and  before  him  appel- 
lant presented  his  claim  on  the  revived  judg- 
ment. Other  claims  amounting  to  $100,976.07 
were  also  presented  and  proven  before  the 
auditor;  and  to  such  other  claims  the  net 
fund  for  distribution,  amounting  to  $1,790.79, 
was  distributed  by  the  auditor  and  court 
below,  to  the  exclusion  of  appellant's  claim; 
and  this  appeal  was  taken  from  the  final 
decree  of  distribution  of  the  fund. 

[1]  We  entirely  agree  with  the  conclusion 


readied  by  the  court  below.  Where  the 
mortgagor  has  parted  with  his  title  to  the 
mortgaged  premises,  a  release  of  a  part  there- 
of by  the  mortgagee,  wltboat  the  knowledge 
or  consent  of  the  mortgagor,  will  discharge 
the  latter  from  personal  liability  for  any 
loss  to  the  mortgagee  resulting  from  a  de- 
ficiency in  the  proceeds  of  a  subsequent  sale 
in  foreclosure  proceedings.  Meigs  v.  Tun- 
nicliffe,  214  Pa.  495,  63  Atl.  1010,  112  Am. 
St  Rep.  769,  6  Ann.  Cas.  549.  See  opinion 
by  Mr.  Justice  Stewart.  By  such  release 
the  mortgagee  assumes  the  risk  of  the  un- 
released  portion  of  the  property  being  of 
sufilclent  value  to  secure  his  debt.  That  he 
was  not  mistaken  in  this  case  appears  from 
the  fact  that  shortly  after  the  sheriff's  sale 
such  unreleased  property  was  resold  for  more 
than  double  the  amount  unpaid  on  the  mort- 
gage. However,  in  the  absence  of  fraud  or 
collusion  at  the  sheriff's  sale,  the  profits 
on  such  resales  would  not  Inure  to  the  ben- 
efit of  the  original  mortgagors. 

[2]  The  rights  of  creditors  were  fixed  by 
the  assignment;  and  while  the  confession  of 
Judgment  thereafter  upon  the  bond  would  as 
against  the  mortgaged  premises  relate  back 
to  the  recording  of  the  mortgage,  it  would 
not  give  the  obligee  in  such  bond  any  rights 
superior  to  those  of  other  creditors  as  to  the 
balance  of  the  assigned  estate.  The  entry  of 
such  Judgment  did  not  create  a  lien  on  land, 
aside  from  the  mortgaged  premises,  which 
had  previously  passed  from  the  mortgagors 
by  deed  of  assignment  for  benefit  of  credi- 
tors. Cowan,  Casey  &  Hutkoff  v.  Fenna. 
Plate  Glass  Co.,  184  Pa.  1,  38  AU.  1075.  a%e 
act  of  AprU  2,  1822  (7  Smith's  Laws,  551; 
Stewart's  Purdon,  vol.  1,  p.  1185),  to  which 
our  attention  was  called  at  bar,  authorizes 
the  collection  of  the  mortgage  debt  from  the 
unreleased  part  of  the  premises,  and  provides 
for  the  protection  of  the  rights  of  the  re- 
spective part  owners  under  sndi  drcnm- 
stances,  but  makes  no  reference  to  the  per- 
sonal liability  of  the  mortgagor,  and  Is  not 
applicable  to  this  case.  As  In  our  opinion  the 
release  above  stated  of  parts  of  the  mort- 
gaged premises  Is  a  complete  answer  to  ap- 
pellant's dalm  on  the  fund  for  distribution, 
it  Is  not  deemed  necessary  to  discuss  other 
features  of  the  case. 

The  assignments  of  error  are  overruled, 
and  the  decree  affirmed  at  the  costs  of  the 
appellant. 


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APPEAI<  OF  SCH£I<LEN 


81 


m  conn.  TN) 

Appeal  ot  SOHBJLLEN. 

(Snpreme  Coort  of  Ehrron  of  Oonnecttcnt    Jane 
14,  1917.) 

Municipal  Cobpohations  ®=»514(7)— Publio 

Improvements— AssKssuENTS. 
Where  the  city  has  constructed  a  sewer  im- 
proTement,  collected  all  the  assessments  there- 
for, and  made  full  payment,  it  cannot  raise  an 
amount  in  excess  of  the  cost  by  assessing  benefits 
to  one  who  has  subsequently  erected  a  dwelling 
and  made  connections  with  the  sewer. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1211.] 

Appeal  from  Superior  Court,  New  London 
County ;    Milton  A.  Shumway,  Judge. 

In  the  matter  of  sewer  assessment  of  the 
bwough  of  Groton.  From  a  Judgment  con- 
firming an  a^essment  of  benefits  for  sewer 
Improvement,  Pierre  Lu  Schellen,  an  abutting 
landowner,  appeals.    Reversed  and  remanded. 

The  borough  of  Oroton  is  empowered  by 
Its  cbarter  to  lay  out  and  construct  a  sewer 
system,  to  have  supervision  and  control  of 
the  same,  and  to  assess  against  persons  whose 
property  is  specially  benefited  thereby  such 
sums  as  tbey  ought  Justly  and  equitably  to 
pay  therefor  to  be  determined  according  to 
such  rule  of  assessment  based  upon  frontage 
and  area,  either  or  both,  as  It  may  adopt  as 
being  Just  and  reasonable.  Pursuant  to  this 
authority,  tbe  borough,  In  1913  and  1914, 
laid  out  and  constructed  a  sewer  system,  and 
assessed  against  the  several  owners  of  land 
abutting  on  the  streets  in  which  It  was  built 
the  estimated  cost  of  Its  construction.  This 
assessment  was  completed  in  May,  1013.  The 
appellant,  as  the  owner  of  a  tract  of  land 
located  at  the  comer  ot  Broad  and  Bams- 
dell  streets,  was  one  of  tbe  persons  assessed. 
He  and  all  others  against  whom  the  assess- 
ments were  made  paid  tbe  amounts  thereof 
to  the  borough.  Preparatory  to  making  these 
assessments,  the  borough,  acting  under  the 
authority  of  its  charter,  adopted  a  rule  for 
the  assessment  ot  benefits  which  provided 
that  the  estimated  cost  of  the  work  should  be 
assessed  on  the  property  specially  benefited 
In  tbe  pr<^>ortioii  of  four-tenths  to  frontage 
and  six-tenths  to  area ;  the  area  to  be  calcu- 
lated to  a  line  parallel  with  and  not  more 
than  100  feet  distant  from  tbe  street  front- 
age. The  rule  provided  for  a  departure  from 
strict  adherence  to  .the  above  provisions 
where  such  adherence  would  lead  to  injustice 
and  for  a  certain  frontage  exemption  in  the 
case  of  comer  lots.  It  was  provided  that 
the  rate  of  assessment  should  be  GO  cents  per 
lineal  foot  of  frcmtage,  and  7^  mills  per 
square  foot  of  area  benefited.  The  assess- 
ments of  1913  were  made  in  conformity  to 
this  rule.  No  change  in  or  addition  to  any 
of  tbe  sewers  has  been  made  since  their  orig- 
inal  construction  In  1913  and  1914. 

Sabsequent  to  May,  1918,  the  appellant 
built  a  house  upon  his  land  which  was  lo- 
cated more  than   100  feet  from  the  street 


and  connected  the  same  with  the  sewer,  and 
certain  others  did  likewise.  A  modification 
of  the  rule  of  assessment  was  then  made  by 
the  borough  so  that  It  was  provided  that  In  all 
cases  where  a  bouse  situated  more  than  100 
feet  from  tbe  street  should  be  connected  with 
tbe  sewer,  a  further  and  additional  assess- 
ment should  be  made  against  the  owner 
on  account  of  the  sewer  with  which  connec- 
tion was  made,  such  additional  assessment 
to  be  made  at  the  rate  of  7%  mills  per  square 
foot  of  area  upon  so  much  land  not  thereto- 
fore covered  by  the  existing  rule  as  would  be 
Included  within  a  circle  having  a  radius  of 
60  feet  from  the  center  of  the  house.  Fol- 
lowing this  modification  and  pursuant  to  its 
IMTOvisions,  an  additional  assessment  was 
made  against  the  appellant  amounting  to 
$255.16.  From  that  assessment  the  present 
appeal  was  taken. 

Other  facts  not  pertinent  to  the  opinion 
need  not  be  stated. 

Jeremiah   J.   Desmond,   of  Norwich,   and 
i  Warren   B.   Burrows,   of  New    London,  for 
j  appellant    Arthur  T.  Keefe,  of  New  London, 
for  appellee. 

PRENTICE,  C.  J.  (after  staUng  the  facts  aa, 
above).  It  Is  an  open  question  whether  the 
borough's  power  to  assess  t)eneflts  on  account 
of  this  public  improvement  was  not  exhaust- 
ed before  the  attempted  assessment  appealed 
from  was  made  In  1916,  even  though  the  actu- 
al cost  of  the  work  exceeded  the  estimated 
cost  which  was  originally  assessed  and  some 
portion  of  the  actual  cost  remained  undis- 
tributed over  the  property  specially  benefited. 
City  of  Chicago  v.  People  ex  rel.  Norton,  56 
111.  327,  332;  Meecb  v.  City  of  Buffalo,  29 
N.  Y.  198,  216.  Doubtless  authority  to  make 
a  snpplemmtal  assessment  to  cover  cost  not 
already  assessed  may  be  conferred  by  stat- 
ute; but  there  appears  to  be  no  such  grant 
of  power  to  the  borough  of  Groton.  That 
question,  however,  Is  one  which  we  have  no 
occasion  to  answer,  since  It  nowhere  appears 
in  this  record  that  the  actual  cost  of  tbe 
sewer  system  constructed  exceeded  Its  esti- 
mated cost  which,  pursuant  to  the  rule  adopt- 
ed by  the  borough,  was  assessed  on  the  prop- 
erty specdally  benefited  and  by  the  owners 
of  that  property  wholly  paid  In.  In  so  far  as 
appears,  the  borough  has  been  fully  compen- 
sated for  the  cost  of  construction  by  the  prop- 
erty owners  specially  benefited  and  assessed. 
It  Is  without  authority  to  raise  an  amount  In 
excess  of  tbe  cost  of  a  public  improvement 
through  the  meditun  of  an  assessment  of 
benefits,  and  that  for  aught  that  appears  Is 
what  the  borough  undertook  to  do  when  It 
made  the  assessment  of  1916  against  the  ap- 
pellant 

There  Is  error;  the  Judgment  Is  set  aside, 
and  the  cause  remanded,  with  direction  tc 
vacate  the  assessment  appealed  from.  The 
other  Judges  concurred. 


4s3For  otlier  emses  i 
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82 


Ma  ATLANTIC  EEPORTEa 


(Conii. 


(91' Conn.  880) 

PICKETT  ▼.  BUIOKOLDT. 

<Supreme  Court  of  EJrrors  of  Connecticut.    June 
14,  1917.) 

1.  Insane  Peksons  €=>92— Action  bt  Con- 
servator. 

Action  to  recover  property  of  an  incapable 
person  would  not  be  defeated  because  brought 
in  his  conserTator's  own  name  and  not  in  the 
ward's  name,  where  the  complaint  alleged  the 
conservator  brought  the  action  as  such  conserv- 
ator, since  he  was  the  proper  person  to  brin^ 
the  acUon,  and  under  Gen.  St.  1902,  §§  622,  023, 
as  to  nonjoinder  and  misjoinder  and  substi- 
tuting plaintiff,  the  ward's  name  might  be  sub- 
stituted on  motion. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §{  161,  162.] 

2.  Insane  Persons  «=»44  —  Action  bt  Con- 
servator—Death  OF  Incapable  Person. 

Deatli  of  an  incapable  person  does  not  abate 
action  brought  for  his  benefit  by  his  conserv- 
ator. 

[Ea.  Note.- BH)r  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §§  C9,  70.] 

3.  Insane  Persons  ®=»44— Action  by  Con- 
servator-Death OF  Incapable  Person— 
Substitdted  Plaintiff— Administrator. 

Where  conservator  of  an  incapable  person 
had  sued  In  his  own  name  for  benefit  of  the 
ward,  on  the  ward's  death  his  administrator  bad 
a  right  to  be  substituted  as  plaintiff  under  Gen. 
St  1902,  J  62.3,  as  to  substituted  plaintiff,  and 
Survival  Act  (Pub.  Acts  1903,  c.  193)  i  1. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §§  69,  70.] 

4.  Insane  Persons  «=>44  —  Action  by  Con- 
servator— Death  of  Incapable  Person  — 
Survival  of  Cause  of  Action— "Kiout  op 
Action." 

Undor  the  Survival  Act,  i  1,  providing  that 
■"no  cause  or  right  of  action  shall  be  lost  or 
destroyed  by  death,  etc,  survival  of  actions  is 
the  rule  and  not  the  exception,  and  the  presump- 
tion is  that  every  cause  or  right  of  action  sur- 
vives until  the  contrary  is  made  to  appear;  the 
phrase  "right  of  action"  including  the  right  to 
commence  and  maintain  an  action  and  being 
broad  enough  to  include  a  right  to  be  admitted 
to  prosecute  a  pending  action  either  as  a  co- 
plaintiff,  or  substitnted  plaintiff  (citing  Words 
jind  Phrases,  Ilight  of  Action). 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  $i  €9,  70.] 

5.  Insane  Persons  «=>44— Action  bt  Con- 
servator—Death of  Incapable  Person- 
Substitution  OP  Parties  —  Motion  to 
Erase  from  Docket. 

Under  Gen.  St.  1902,  i  822,  providing  that 
no  action  shall  be  defeated  oy  nonjoinder  or  mis- 
joinder of  pai:ties,  where  administrator  of  an 
incapable  person  after  his  death  entered  to 
prosecute  nnder  Survival  Act,  §  2,  an  action 
commenced  for  such  person  in  his  lifetime  by  his 
conservator  in  his  own  na^e,  instead  of  apply- 
ing to  be  substituted  as  plaintiff  under  Gen.  St. 
1902,  S  623,  ns  to  substituted  plaintiff,  defend- 
ant's appropriate  remedy  was  not  a  motion  to 
dismiss  and  erase  from  the  docket,  but  a  motion 
to  strike  from  the  record  tlic  entry  to  prosecute. 
[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §§  69,  70.] 

Appeal  from  Superior  Court,  New  Haven 
County ;   Joseidi  P.  Tuttle,  Judge. 

Action  by  Etlvviu  S.  IHckett,  Cionservator, 
against  George  W..  Rulckoldt  From  order 
erasing  ease  from  docket,  plaintiff  appeals. 


Error,  and  cause  remanded,  with  direction  to 
restore  it  to  docket. 

Leonard  M.  Daggett  and  Robert  J.  Wood- 
ruff, both  of  New  Haven,  for  appellant  Phil- 
ip Pond  and  Louis  M.  Roaenbluth,  both  of 
New  Haven,  for  appellee. 

BEACH,  J.  This  action  was  brought  by 
the  conservator  in  his  own  name  to  recover 
real  and  personal  property  alleged  to  have 
been  transferred  without  consideration  by 
the  ward  to  his  brother,  while  under  the  un- 
due influence  of  the  transferee.  Before  any 
answer  ,was  filed  the  ward  died,  and  the 
Union  &  New  Haven  Trust  Company,  his 
administrator,  entered  to  prosecute.  Ten 
months  afterward  the  defendant  filed  a  sug- 
gestion on  the  record  of  the  termination  of 
the  conservatorship,  and  moved  that  the 
cause  be  dismissed  and  erased  from  the  dock- 
et The  motion  was  granted  on  the  ground 
that  the  action  was  originally  Improperly 
brought  In  the  name  of  the  conservator,  and 
not  in  the  name  of  the  ward  by  the  conserva- 
tor acting  in  his  behalf;  that  as  the  action 
never  stood  in  the  name  of  the  deceased  ward, 
the  statute  authorizing  the  administrator  of 
a  deceased  plaintiff  to  enter  and  prosecute 
does  not  avplj ;  and  that  since  no  motion  was 
made  to  substitute  one  plaintiff  for  another, 
the  action  was  without  a  plaintiff.  The  old 
rule  was  that  a  conservator  could  not  main- 
tain an  action  to  collect  the  ward's  debts  in 
his  own  name  ns  conservator.  Treat  v.  Peck, 
5  Conn.  280;  Hutchlns  v.  Johnson,  12  Conn. 
376,  30  Am.  Dec.  '622;  Rlggs  v.  Zaleskl,  44 
Conn.  120.  Even  If  the  rule  still  prevails, 
the  consequences  of  a  failure  to  observe  It  are 
very  different  now  from  .what  they  were 
when  Biggs  v.  Zaleskl  was  decided  in  1876. 

[1]  The  conservator  was  the  proper  per- 
son to  bring  the  action,:  and  in  his  complaint 
he  alleges  that 'he  brings  it  as  the  conserva- 
tor of  Arthur  Rulckoldt.  Under  sections  62i2 
and  628  of  the  General  Statutes,  the  action 
could  not  have  been  defeated,  in  Rulckoldt's 
lifetime,  because  not  brought  in  his  name. 
Being  on  tlte  face  of  the  complaint  beneficial- 
ly Interested,  his  name  might  have  been  en- 
tered or  substituted  as  a  plaintiff,  on  motion. 
In  the  meantime,  the  action,  even  if  brought 
by  the  wrong  plaintiff,  was  still  pending.  As 
was  said  In  itowen  v.  National  Life  Ass'n,  63 
Conn.  460,  476,  27  Atl.  1059,  1062,  the  Prac- 
tice Act  has  "radically  changed  the  old  prac- 
tice with  reference  to  joinder,  admlsidon  and 
dropping  of  the  parties  to  a  suit,  and  the 
changes  were  intentiiwaUy  and  deliberatelj- 
made." 

[2]  When  Rulckoldt  died  the  action  did 
not  abate;  nor  was  the  conservator  dis- 
charged by  his  ward's  death.  He  still  had 
tlie  estate  in  his  bands  and  must  account 
for  It  to  the  court  of  probate.  Until  he  .wus 
discharged  tlie  action  was  not  without  u 
plaintiff  and,  subject  to  possible  objection 


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BLUE  RIBBON  OARAGK  t.  BALDWIN 


83 


wblch  the  defendant  did  not  make,  it  remain- 
ed i>endliig  In  court,  with  the  conservator  as 
the  sole  nominal  plaintiff,  until  August  7, 
1015,  when  the  administrator  entered  to  pros- 
ecute. If  the  administrator  then  bad  a  right 
to  enter,  the  action  remained  iu  court  with 
two  plaintiffs,  until  the  final  account  of  the 
conservator  was  accepted  and  he  was  dis- 
charged by  the  court  of  probate.  The  record 
does  not  show  when  the  conservator  was  dis- 
charged, but  that  fact  was  not  suggested  on 
the  record  until  Mar,  1916,  ten  months  after 
the  administrator  had  entered  to  prosecute. 

[3]  We  think  the  administrator  had  a  right 
to  be  substituted  as  plaintiff  under  section 
623  of  the  General  Statutes.  Bulckoldt  was 
the  party  for  .whose  benefit  the  action  was 
brought,  and  his  right  to  be  substituted  as  a 
plaintiff  in  the  action  was  a  substantial  right 
wbldi  survived  to  the  administrator. 

[4]  The  broad  language  of  section  1  of  the 
Survival  Act  of  1903  is  that : 

"No  cause  or  right  of  action  shall  be  lost  or  de- 
stroyed by  the  death  of  any  person,  but  shall 
survive  in  favor  of  or  against  the  executor  or 
administrator  of  such  deceased  person." 

Under  this  statute  the  survival  of  actions 
is  the  rule  and  not  the  exception,  and  the 
presumption  is  that  every  cause  or  right  of 
action  survives  until  the  contrary  is  made 
to  appear  by  way  of  exception  to  the  rule. 
The  phrase  "right  of  action"  includes  the 
right  to  commence  and  maintain  an  action. 
Words  and  Phrases  (vol  7)  p.  6266.  It  is 
broad  enough  to  include  a  right  to  be  admit- 
ted to  prosecute  a  pending  action  either  as  a 
coplalatlff,  or  substituted  plaintiff;  and  un- 
der section  623  the  administrator  had  a  right 
to  be  substituted  as  plaintiff  in  place  of  the 
conservator.  Nobody  would  doubt  that  the 
administrator  of  a  decedent,  who  ought  to 
have  been  made  a  defendant,  but  was  omitted 
through  mistake,  could  be  joined  as  defendant 
In  an  action  which  survived  against  the  es- 
tate, and  we  see  no  reason  why  the  admin- 
istrator of  a  decedent  who  ought  to  have 
been  Joined  as  a  plaintiff,  but  was  omitted 
through  mistake,  may  not  be  admitted  as  a 
coplaintlff,  or  as  substituted  plaintiff,  if  nec- 
essary. In  a  pending  action  which  survives  In 
favor  of  the  estate. 

[S]  Strictly  speaking,  the  right  which  sur- 
vived to  the  administrator  In  this  case  was 
the  very  same  right  .which  the  decedent  bad 
in  bis  lifetime;  vis.  the  right  to  be  substitut- 
ed as  plaintiff  under  section  623  of  the  Gen- 
eral Statutes.  It  is  therefore  true,  as  the 
memorandum  of  the  superior  court  suggests, 
that  the  administrator  ought  to  have  made 
ai^licatlon  under  that  statute  to  be  substitut- 
ed as  plaintiff,  instead  of  entering  to  prose- 
cute under  section  2  of  the  Survival  Act. 
Nevertheless  he  succeeded  in  making  himself 
a  party  on  the  record  by  entering  to  prose- 
cute, and  the  defendant's  real  grievance  was 
not  that  the  administrator  had  no  right  to 
come  into  the  action,  but  that  be  bad  come  in 


through  the  wrong  door.  That  being  so,  the 
appropriate  remedy  was  not  a  motion  to  dis- 
miss and  erase  from  the  docket,  but  a  motion 
to  strike  from  the  record  the  entry  to  prose- 
cute. Section  622  of  the  General  Statutes 
provides  that  "no  action  shall  be  defeated  by 
the  nonjoinder  or  misjoinder  of  parties"; 
and  this  must  Include  the  lesser  proposition 
that  no  action  should  be  defeated  because 
the  right  party  came  into  It,  or  attempted  to 
come  into  It,  in  the  wrong  way. 

There  is  error,  and  the  cause  is  remanded, 
with  directi<m  to  restore  it  to  the  docket. 
The  other  Judges  concurred. 


(11  Ckmn.  <T4) 
BZiUB  RIBBON  OARAGE,  Inc..  ▼.  BALD- 
WIN et  al. 

(Supreme  Court  of  Errors  of  Connecticut    June 
14,  1917.) 

1.  Biixs  AND  Notes  $=»414— Notice  or  Dis- 

EONOB. 

Under  Negotiable  Instruments  Law  (Pub. 
Laws  1897,  c.  74)  as  well  as  the  former  law 
merchant,  a  bolder  for  collection  of  negotiable 
paper,  which  has  been  dishonored,  performs  his 
full  duty  in  respect  to  notice  of  its  dishonor  by 
giving  such  notice  in  due  form  and  time  to  the 
party  from  whom  he  receives  it. 

[Ed.    Note.— For   other   cases,   see   Bills  and 
Notes,  Cent  Dig.  Si  1142,  114&-1155.] 

2.  Bills  and  Notes  ^=>414 — Notice  op  Dib- 

HON<W. 

Under  Negotiable  Instruments  Law,  as  well 
as  former  law  merchant  where  negotiable  pa- 
per before  presentment  has  passed  through  sev- 
eral hands,  whether  of  mere  holders  for  collec- 
tion or  of  parties  beneficially  interested  therein, 
notice  given  by  each  holder  in  turn  to  the  prior 
one  from  whom,  it  was  received  is  notice  suffi- 
ciently given  to  fix'  the  liability  of  all  indorsers 
included  in  the  chain  of  notice,  each  holder  for 
collection  being  regarded  as  a  real  holder,  and 
his  relation  to  the  party  from  whom  the  paper 
is  received  being  such  that  the  latter  is  entitled 
to  be  treated  as  his  immediate  principal;  and 
it  is  not  necessary  that  notice  of  dishonor,  to 
be  effective  in  fixing  the  liability  of  indorsers, 
should  be  given  by  the  holder  at  presentment  di- 
rectly to  the  beneficial  owner,  disregarding  all 
intervening  holders  for  collection  only. 

[Ed.   Note.— For   other  cases,   see   Bills   and 
Notes,  Cent  Dig.  {g  1142,  1148-1155.] 

8.  Bills  and  Notes  ^ss.'iSO— Action  Aoainst 

Indobser— FiNDiNoa  of  Fact. 
In  action  against  indorser  of  a  note  which 
had  been  sent  to  a  trust  company  for  collection, 
a  finding  that  the  trust  company  had  never  been 
plaintitTs  agent  for  any  purpose  whatsoever 
might  be  disregarded  as  a  mere  conclusion  of 
law ;  the  facts  showing  the  trust  company  to  be 
a  holder  for  collection  and  therefore  as  matter 
of  law  the  owner's  agent 

[Ed.  Note.— For   other   cases,   see   Bills  and 
Notes,  Cent  Dig.  H  1911-1913,  1934.] 

4.  Bills  and  Notes  «=»420— Notice  of  Dis- 

HONOB. 

Where  the  holder  of  a  note,  receiving  notice 
of  its  dishonor,  notified  a  prior  indorser  and 
the  original  payee  of  the  dishonor  by  telephone 
and  personal  visit  and  oral  notification  respec- 
tively, this  was  sufficient  compliance  with  the 
Negotiable  Instruments  Law. 

[Ed.   Note.— For  other  cases,    see   Bills   and 
Notes,  Cent  Dig.  U  1138-1140.] 


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101  ATLANTIC  REPORTER 


(Conn. 


Appeal  from  Court  of  Common  Pleas,  EWr- 
3eld  County ;    John  J.  Walsh,  Acting  Judge. 

Action  by  the  Blue  Ribbon  Garage,  Incor- 
porated, against  R.  L.  Baldwin  and  otbers. 
From  Judgment  for  plaintiff,  the  named  de- 
fendant and  others  appeal     No  error. 

On  February  15,  1915,  the  plaintiff  be- 
came the  owner  of  the  note  In  suit  in  part 
payment  for  the  sale  to  the  defendant  Bald- 
win of  an  automobile.  The  note  was  drawn 
by  the  defendant  the  State  of  Maine  Lumber 
Company,  to  the  order  of  the  defendant  At- 
water,  and  was  made  payable  at  the  Con- 
necticut Trust  &  Safe  Deposit  Company,  of 
Uartford.  It  bore  the  indorsements  of  the 
five  individuals  who  were  made  defendants, 
Indudiug  Atwater  and  Baldwin,  against 
whom  Judgment  was  rendered.  The  pladn- 
tiff  still  owns  the  note,  which  remains  un- 
paid. The  date  of  maturity  was  March  2, 
1916. 

February  26, 1916,  tie  plaintiff  deposited  it 
for  collection  with  the  First  Bridgeport  Na- 
tional Bank  of  Bridgeport.  l*at  bank  for- 
warded it  in  due  course  of  business  to  tbeir 
agents,  the  State  Bank  of  Albany,  for  col- 
lection. The  State  Bank  of  Albany  in  like 
manner  forwarded  It  for  collection  to  Its 
agents,  the  Hartford  National  Bank  of  Hart- 
ford. On  or  before  the  morning  of  March  2, 
1916,  the  last-named  bank  delivered  it  to  the 
Connecticut  Trust  &  Safe  Deposit  Company, 
the  place  of  payment  Payment  not  having 
been  made  at  the  close  of  business  upon  that 
day,  it  was  handed  by  the  discount  clerk  of 
the  trust  company  to  its  teller,  who  demand- 
ed payment,  and,  no  payment  having  been 
made,  wrote  across  the  face  of  the  note: 
"Protested  for  nonpayment  Mar.  2,  1915, 
Harvey  W.  Corbin,  Notary  Public."  He  then 
made  a  certificate  of  protest  and  ten  notices 
of  protest,  one  addressed  to  each  of  the  banks, 
and  each  party  whose  name  appeared  upon 
the  note,  pinned  the  certificate  to  the  orig- 
inal note  and  placed  the  note  and  certificate 
thus  attached,  together  with  the  ten  copies  of 
the  notice  of  protest,  in  an  envelope  and  mail- 
ed It  with  its  inclosures,  Including  two-cent 
stamps  for  each  notice  save  one,  to  the  Hart- 
ford National  Bank.  On  the  following  day, 
the  last-named  bank  mailed  the  note,  certifi- 
cate of  protest,  and  notices,  save  only  the  no- 
tice to  Itself,  to  the  State  Bank  of  Albany. 
On  March  5th,  the  First  Bridgeport  Nation- 
al Bank  received  from  that  bank  in  the  first 
mail  the  same  inclosures  less  the  notice  to  the 
State  Bank  of  Albany.  The  Bridgeport  bank 
inintediately  thereafter  remalled  them,  less 
the  notice  to  it,  to  the  plaintiff,  who  received 
them  during  the  forenoon  of  the  same  day. 
Upon  that  day  Baldwin  was  notified  by  the 
plaintiff's  treasurer  by  telephone  of  the  dis- 
honor. On  the  following  day,  Atwater,  who 
resided  In  New  Haven,  was  visited  by  the 
plalntiflTs  agent  and  orally  notified.  No  at- 
tempt was  made  by  the  plaintiff  to  notify  the 
other  indorsers. 


George  E.  Beers,  of  New  Haven,  and  Dan- 
iel J.  Danaher,  of  Merlden,  for  appellants 
Baldwin  and  Atwater.  Jolin  Smith,  of 
Bridgeport,  for  appellee. 

PRENTICE,  O.  J.  (after  stating  the  facta 
as  above).  [1,2]  The  course  of  conduct  of 
the  notary  who  made  presentment  at  the  note 
in  suit  and  of  the  several  banks  through 
whose  hands  It  passed  in  the  collection  pro- 
cess conformed  strictly,  in  so  far  as  notice 
of  dishonor  was  concerned,  to  the  require- 
ments of  the  law  merchant  formerly  control- 
ling and  to  those  of  the  negotiable  Instrument 
law  now  in  force.  By  the  overwhelming 
weight  of  authority  under  the  law  merchant, 
a  holder  for  collection  of  negotiable  paper, 
which  had  been  dishonored,  performed  his  full 
duty  In  respect  to  notice  of  Its  dishonor  by 
giving  such  notice  in  due  form  and  time  to 
the  party  from  whom  he  received  It  Where 
the  paper  before  presentment  had  passed 
through  several  hands,  whether  they  were 
those  of  mere  holders  for  collection  or  of 
parties  having  a  beneficial  interest  in  it  the 
approved  rule  was  that  notice  given  by  each 
holder  In  turn  to  the  prior  one  from  whom 
it  was  received  was  notice  sufficiently  given 
to  fix  the  liability  of  all  Indorsers  Included 
in  the  chain  of  notice.  United  States  Bank 
V.  Goddard,  5  Mason,  366,  375,  Fed.  Cas.  No, 
917;  Eagle  Bank  v.  Hathaway,  5  Mete 
(Mass.)  212,  215;  Phlpps  v.  Mlllbury  Bank. 
8  Mete.  (Mass.)  79,  84;  Farmers*  Bank  v. 
Vail,  21  N.  Y.  485,  487;  Seaton  v.  Scovin, 
18  Kan.  433,  438,  21  Am.  Rep.  212,  note  26 
Am.  Rep.  779;  Wood  v.  Callaghan,  61  Mich. 
402,  411,  28  N.  W.  162,  1  Am.  St  Rep.  597; 
Daniel  on  Negotiable  Instruments,  331.  Each 
holder  for  collection  was  regarded  as  a  real 
holder  and  his  relation  to  the  party  from 
whom  the  paper  was  received  such  that  the 
latter  was  entitled  to  be  treated  as  his  Im- 
mediate principal.  Bartlett  v.  Isbell,  SI 
Conn.  296,  299,  83  Am.  Dec.  146;  Phlpps 
V.  Mlllbury  Bank,  8  Mete.  (Mass.)  T9,  84; 
Freeman's  Bank  v.  Perkins,  18  Me.  292,  294; 
Howard  v.  Ives,  1  Hill  (N.  Y.)  263,  264 ;  Ex- 
change Bank  v.  Sutton  Bank,  78  Md.  577,  587, 
28  Atl.  563,  23  L.  R.  A.  173. 

The  Negotiable  Instruments  Act  has  not 
changed  the  law  in  any  of  these  respects. 
The  defendant's  broad  contention  that  no- 
tice of  dishonor  to  be  effective  In  fixing  the 
liability  of  Indorsers  should  be  given  by  the 
holder  at  presentment  directly  to  the  benefi- 
cial owner  disregarding-all  Intervening  hold- 
ers for  collection  only  Is  without  foundation 
in  the  act,  and  we  have  so  distinctly  held. 
Gleason  v.  Thayer,  87  Conn.  248,  250,  87  Atl. 
790,  Ann.  Cas.  1915B,  1069.  Such  a  require- 
ment necessitating,  as  It  would,  inquiries  as 
to  who  was  the  real  owner  and  what  his  ad- 
dress, and  involving  embarrassment  and  com- 
plications In  accounting  as  between  those 
through  whose  hands  the  paper  passed  in  the 
process  of  collection,  would  be  fruitful  of 
such  annoyances,  difiScultles,  and  hazards  of 


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APPEAL  07  OORDANO 


85 


miscarriage  and  loss  as  to  make  It  an  onsat- 
Isfitctory  substitute  for  the  simple,  orderly, 
and  effective  method  pursued  In  this  case  and 
by  us  heretofore  approved.  The  case  of  East 
Haddam  Bank  v.  Scovil,  12  Conn.  303,  fur- 
nishes a  good  example  of  easily  possible  con- 
Bequeaces.  The  law  under  consideration  in 
Oleason  v.  Thayer  was,  to  be  sure,  the  Ne- 
gotiable Instruments  Act  as  it  was  enacted 
In  New  York;  but  its  provisions  of  present 
pertinence  were  identical  with  those  of  our 
own. 

The  defendant's  counsel  undertake  to  es- 
cape from  the  operation  of  the  decision  in 
that  case  by  an  attempt  to  distinguish  be- 
tween the  two  cases  upon  the  ground  that 
the  note  in  Gleason  v.  Thayer  presumably 
was  indorsed  by  the  Whaling  Bank,  to  the  col- 
lection bank  in  New  York,  whereas  it  does  not 
appear  by  the  record  that  the  note  in  this 
case,  when  presented  for  payment,  bore  any 
bank  indorsements.  It  would  doubtless  be 
quite  In  accordance  with  ttie  fact  to  assume 
that  It  did,  but  that  is  not  a  matter  of  con- 
trolling importance.  The  note,  as  Indorsed 
upon  its  delivery  to  the  Bridgeport  Bank, 
was  transferable  by  delivery,  and  the  finding 
is  that  It  was  sent  along  through  the  chain 
of  banks  for  collection.  Each  bank  received 
and  transmitted  it  to  its  agents  for  that  pur- 
pose, and  each  receiving  bank  became  its 
holder  for  collection  with  all  the  rights, 
powers,  and  obligations  attached  to  such 
holders.  ESast  Haddam  Bank  v.  Scovil,  12 
Conn.  302,  311. 

[3]  Counsel  for  the  defendant  attach  great 
Importance  to  one  of  the  paragraphs  in  the 
finding,  and  build  much  of  their  argument 
upon  It  The  paragraph  is  to  the  effect  that 
the  Connecticnt  Trust  &  Safe  Deposit  Com- 
pany has  never  been  the  plaintiff's  agent  for 
any  purpose  whatsoever.  Tliat  finding  is 
one  of  law  and  not  of  fact  The  legal  char- 
acter of  tite  relation  in  which  tne  trust  com- 
pany stood  to  the  owners  of  the  note  is  to 
be  determined  as  a  legal  conclusion  upon  the 
facts.  The  finding,  to  be  sure,  does  not  state 
In  so  many  words  that  the  Hartford  Nation- 
al Bank  delivered  the  note  to  the  trust  cmu- 
pany  for  collection  for  its  account,  but  there 
Is  no  other  reasonable  Inference  from'  the 
facts  found  than  that  It  did  so.  The  conduct 
of  the  parties  throughout  so  indicates  quite 
unmistakably.  As  a  holder  for  collection  is, 
as  a  matter  of  law,  the  agent  of  the  owner, 
the  finding  of  the  court  upon  this  uiatter 
must  be  disregarded  as  not  Justified  as  a 
matter  of  law  by  the  facts.  Gleoson  v.  Thay- 
er, 87  Conn.  248,  250,  87  Atl.  790,  Ann.  Gas. 
1915B,  1069. 

[4]  The  action  of  the  plaintiff  in  giving 
notice  to  the  defendants  Baldwin  and  At- 
water,  following  its  receipt  in  due  course 
from  the  Bridgeport  Bank,  of  the  notice  of 
dishonor,  complied  in  all  respects  with  the 
K-qulrements  of  the  law,  and  no  complaint  of 


irregularity  in  that  respect  Is  made  by  the  de- 
fendants. 

Certain  evidence  tending  to  prove  a  bank- 
ing custom  in  the  matter  of  giving  notices  of 
dishonor  was  received  against  objection  that 
it  was  not  permissible  to  show  conformity  to 
a  custom  at  variance  with  the  provisions  of 
statute.  The  court  has  found  no  such  cus- 
tom, nor  did  It  decide  the  caise  upon  the 
strength  of  <me.  Its.  decision  was  based  up- 
on the  provisions  of  statute  and  compliance 
therewitli. 

Two  or  three  objections  to  the  admission 
of  testimony,  offered  to  show  that  the  Hart 
ford  National  Bank  mailed  the  note,  certifi- 
cate of  protest,  and  notices  to  the  State  Bank 
of  Albany  on  March  3,  relate  to  details  which, 
in  view  of  other  testimony,  were  unimportant 
The  court  was  amply  Justified  in  finding  that 
it  did  so  upon  proof  that  these  papers  were 
received  by  the  Bridgeport  Bank  by  first 
mail  on  the  5th  contained  In  a  letter  from 
the  State  Bank  of  Albany  addressed  to  it 

There  is  no  error.  The  other  Judges  con- 
curred. 

(tl  Conn.  TU) 
Appeal  of  OORDANO. 
(Supreme  Court  of  Errors  of  Connecticnt    June 
14,  1617.) 

1.  Intoxicatino  Liquobs  9=>10&-~Licei7ses 

Under  Pub.  Acts  1915,  e.  282,  prohibiting 
granting  of  licenses  to  sell  intoxicating  liquor 
witliin  200  feet  of  a  cliurch,  but  exempting 
transfer  applications  which  are  left  to  the  dis- 
cretion of  the  commissioners,  the  owner  of  a 
licpDse,  whether  or  not  he  has  qualified  to  sell 
under  it,  may  sell  and  assign  it  as  a  piece  of 
property  to  another  who  may  make  applica- 
tion to  sell  under  it  as  a  transferee. 

[Ed.  Note. — For  other  cases,  see  Intoxicating 
liquors.  Cent  Dig.  §§  108-112.] 

2.  Intoxicatino  Liquobs  «s>103— Licenses 

— Chabacteristics. 
Property  in  a  license  to  sell  intoxicating  liq- 
uor is  recogmizcd  by  law  to  the  fullest  extent  as 
property  having  a  recognized  pecuniary  value 
and  the  subject  of  sale,  attachment  levy,  or  re- 
plevy. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  §§  108-112.] 

3.  Intoxicating  Liquobs  <S=»103  —  Licenses 

— TH  A  N  SF^RS 

Pub.  Acta  1916,  c.  282,  prohibits  the  grant 
ing  of  licenses  for  places  located  within  20i0  feei 
of  a  church,  but  exempts  transfers  from  the 
operation  of  the  statute.  Chapter  36  provides 
that  a  license  sold  upon  execution  shall  for  its 
unexpired  term  be  as  valid  in  the  hands  of  its 
purchasers  as  in  the  bands  of  the  original  li 
censee,  provided  that  before  the  purchaser  may 
sell  thereunder  he  shall  comply  with  all  the  re- 
quirements relative  to  the  procuring  of  an  origi- 
nal license.  A  license  was  sold  on  execution  and 
purchased  by  a  brewing  company  which  did  not 
qualify  as  a  licensee  thereunder,  but  transferred 
it  to  one  who  made  application.  Subsequent  to 
such  assignment  a  church  was  erected  within 
200  feet  of  the  saloon.  Held  that,  transfers  be- 
ing exempt  from  the  operation  of  the  statute, 
the  assignee  might  qualify  to  sell  under  the  li- 
cense. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  i§  108-112.] 


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101  ATLANTIC  REPORTER 


(Oonn. 


4.  intoxicatimo  liquobs  «=»  103— licenses 
— Fhacd. 

The  assignee  of  a  liquor  license  sold  upon 
execution  and  purchased  by  a  brewing  company 
which  failed  to  qualify  as  a  licensee  thereunder 
is  not  guilty  of  fraud  in  applying  for  permis- 
sion to  seil  under  the  license  as  being  in  no  posi- 
tion to  claim  such  rights  where  Pub.  Laws  1915, 
c.  282,  expressly  exempts  transfers  from  the  op- 
eration of  the  prohibition  against  licensing 
drinking  places  within  200  feet  of  a  church. 

[Ed.  Note. — For  other  cases,  see  Intoxicating 
Liquors,  Gent.  Dig.  H  108-112.] 

5.  iNTOXtCATINO     LiQTTOBS    ^=9108— LICENSES 

— Fkaud. 
The  assignee  of  a  liquor  license  purchased 
by  a  brewery  on  execution  against  the  original 
holder  is  not  guilty  of  fraud  in  applying  for  per- 
mission to  sell  thereunder  because  of  the  fact 
that  the  assignor  had  not  in  fact  perfected  its 
assignment  to  the  applicant  at  the  time  he  ap- 
plied for  permission  to  sell ;  the  facts  being 
known  to  the  county  commissioners. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  CJent.  Dig.  K  108-112.] 

Appeal  from  Superior  Court,  litchfleld 
County ;   William  L.  Bennett,  Judge. 

Remonstrance  by  Nathaniel  Cordano  to  the 
action  of  the  County  Commissioners  in  grant- 
ing the  transfer  of  a  liquor  license.  Affirmed 
on  reservation  to  superior  court,  and  re- 
monstrant appeals.    Affirmed. 

In  1916  the  county  commissioners  of  Litch- 
field county  granted  to  T.  J.  Sullivan  a  li- 
cense to  sell  spirituous  and  Intoxicating  liq- 
uors at  215  Main  street.  In  Wlnsted,  expiring 
October  31,  1016.  In  June,  1910,  this  license 
was  sold  on  execution  against  Sullivan.  The 
Yale  Brewing  Company  was  the  purchaser. 
That  company  did  not  qualify  as  a  licensee 
under  the  license,  but  sold  the  same  to  one 
Darls,  who  did  apply  on  July  31,  1916,  for  a 
transfer  of  the  license  to  him. 

Subsequent  to  November,  1915,  and  the 
date  of  Davis'  application,  a  church  had  been 
built  and  opened  for  services  within  200  feet 
of  the  saloon.  A  remonstrance  was  filed  to 
Davis'  application  upon  the  ground  of  the 
proximity  of  the  church  to  the  saloon.  Upon 
the  hearing  before  the  commissioners  no  wit- 
nesses were  produced  to  establish  the  un- 
sultability  of  the  place,  but  the  facts,  as  to 
its  proximity  to  the  church,  were  agreed 
upon  as  the  facts  upon  which  the  commis- 
sioners' decision  was  to  be  rendered.  The 
claim  was  made  in  behalf  of  the  remon- 
strance that  the  application  was  to  be  regard- 
ed as  an  original  one,  and  that  therefore  the 
prohibition  of  the  statute  against  the  grant- 
ing of  a  license  for  a  place  within  200  feet 
from  a  church  edifice  was  applicable  to  the 
situation,  and  forbade  the  transfer  of  Sul- 
livan's license  to  Davis.  This  claim  was 
overruled,  and  the  application  granted.  From 
this  action  the  appellant,  who  was  one  of  the 
remonstrants,  appealed. 

Davis  is  a  suitable  person  to  receive  a  li- 
cense. 


Frank  B.  Munn,  of  Wlnsted,  for  remon- 
strating taxpayer.  Walter  Holcomb,  of  Tor- 
rlngton,  for  applicant  for  transfer.  John  T. 
Hubbard,  of  Litdtfleld,  for  county  commis- 
sionera. 

PRENTICH,  C.  J.  (after  stating  the  facts 
as  above).  The  stipulation  of  counsel  upon 
which  this  reservation  was  made  limits  the 
questions,  whose  answers  should  determine 
the  Judgment  to  be  rendered  by  the  superior 
court  under  our  advice.  In  substance  to  two, 
as  follows:  (1)  Was  the  cotinty  commission- 
ers' action  In  granting  Davis's  application  for 
a  transfer  to  him  of  Sullivan's  license  In  vio- 
lation of  the  provisions  of  statute  touching 
licenses  for  places  located  within  200  feet  of 
a  church?  and  (2)  Was  Davis's  applicatton 
a  fraudulent  one? 

Any  question  that  might  have  been  made 
In  the  superior  court  that  the  county  commis- 
sioners erred  In  their  exercise  of  discretion 
in  granting  the  application  is  waived. 

[1]  It  appears  to  be  conceded  by  the  remon- 
strant appellant  that,  if  Davis  had  received  a 
transfer  from  Sullivan,  his  application  to  the 
commissioners  would  not  have  encountered 
the  church  prohibition.  Such  certainly  would 
have  been  the  case,  since  chapter  282  of  the 
Public  Acta  of  1915,  which  embodies  that  pro- 
hibition, specially  excepts  from  Its  operation 
transfer  applications,  and  leaves  the  decision 
in  their  case  to  the  discretion  of  the  commis- 
sioners, in  view  of  the  circumstances  of  each 
particular  case. 

Davis,  however,  did  not  hold  an  as^gnment 
to  himself  from  Sullivan,  the  licensee.  His 
right  to  the  license  came  to  him  from  the 
Yale  Brewing  Company,  who  had  purchased 
It  upon  an  execution  sale,  and  tiad  never  qual- 
ified as  a  licensee  under  it  The  remon- 
strant's contention  is  that  under  such  con- 
ditions he  did  not  occupy  the  position  of 
one  who  .was  enUtied  to  a  transfer  of  the 
license  within  the  meaning  of  our  license 
statutes,  and  therefore  could  not  avail  him- 
self of  the  exceptions  provided  in  chapter  282 
of  the  Public  Acts  of  1915  in  cases  of  trans- 
fer. His  claim  is  that  the  exception  made  in 
that  act  in  favor  of  transfers  of  licenses  re- 
fers'only  to  such  as  attend  the  passing  of 
the  ownership  of  the  license  directly  from 
the  licensee  to  the  applicant  for  a  transfer 
and  without  the  intervention  of  any  other 
person's  ownership  of  the  license,  and  that 
all  other  persons  not  so  deriving  title  to  the 
license  appear  before  the  county  commis- 
sioners as  original  applicants  and  subject  to 
the  regulations  governing  such  applicants. 
In  support  of  this  position  he  points  to  chap- 
ter 148  of  the  Public  Acts  of  1915,  where  it 
is  provided  that  any  licensee,  or  in  case  of 
his  death  his  administrator  or  executor,  may, 
with  the  consent  of  the  county  commission- 
ers, transfer  his  license.  This,  he  says,  is 
inclusive  of  all  transfers  which  the  law  rec- 


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APPEAL  OF  CORDANO 


87 


ognizes  as  such,  and  confines  the  power  to 
make  assignments,  which  by  the  approval  of 
the  county  commissioners  may  become  trans- 
fers, to  licensees. 

This  construction  of  our  statute  is  exceed- 
tni^ly  narrow  and  technical,  and  does  not  com- 
port with  sound  reason.  It  reaches  not  only 
those  who,  as  here,  are  imrchasers  of  a  license 
at  an  execution  sale,  but  also  those  who  hold 
voluntary  assignments  from  the  owner  of  a 
license,  provided  they  have  not  put  them- 
selves in  a  position  to  enji^ge  in  the  liquor 
business  under  its  authority.  We  search  In 
Tain  for  a  practical  reason  for  the  distinction 
thus  made  between  licensed  and  nonlicensed 
owners  of  a  license  in  the  matter  of  their 
(»mpecency  to  make  an  assiRnment  of  the 
license  whidi  may  be  perfected  as  a  transfer 
by  the  action  of  the  county  commissioners, 
lilgpecially  hard  is  it  to  find  a  reasonable  basis 
for  such  distinction,  since  ownership  by  pur- 
chase and  assignment  does  not  carry  with  it 
the  right  to  utilize  the  license  in  the  conduct 
of  the  business.  In  every  case  one  who  ac- 
qnires  an  outstanding  license  is  required  to 
obtain  the  approval  of  the  county  commls- 
fiioners  before  be  can  sell  under  It.  As  the 
llrense  authorities  have  reserved  to  them  the 
iwwer  to  dictate  as  to  .who  among  assignees 
may  exercise  the  franchise  by  becoming 
filers,  and  are  called  upon  in  every  case  to 
<>xercise  that  power,  it  is  difficult  to  discover 
what  abuse  can  possibly  arise  from  making 
assignees  of  nonllcensed  persons  transferees 
of  the  license  which  is  not  to  be  anticipated  in 
the  case  of  assignees  of  licensed  persons.  The 
public  interest  is  not  concerned  with  the  char- 
acter and  suitability  for  the  conduct  of  the 
liquor  business  of  a  seller  of  a  license  who 
does  not  prcvosc  to  operate  under  it.  What 
is  its  vital  concern  Is  the  character  and  sulta- 
Mllty  of  the  purchaser  who  applies  for  leave 
to  sell  under  the  license. 

[IJ  Our  law  recognizes  to  the  fullest  extent 
the  quality  of  property  in  a  license.  It  Is 
property  having  a  recognized  pecuniary  value 
and  the  subject  of  sale,  attachment,  levy,  or 
replevy.  Sayers'  Appeal,  S9  Conn.  315,  317, 
»4  AtL  358 ;  Quinnlplac  Brewing  Co.  v.  Hack- 
barth,  74  Conn.  392,  395,  50  AU.  1023.  As 
PTopertj  and  the  subject  of  sale,  the  owner 
may  prima  facie  at  least  sell  it- and  place  the 
purdiaser  in  his  position  as  owner.  What  Is 
there  to  impose  restraint  upon  this  power  of 
substitution  of  owners  so  that  only  one  class 
of  them,  to  wit,  those  who  hare  guallfled  as 
licensees  under  the  license,  are  free  to  make 
the  substitution  as  fully  and  completely  as 
the  law  in  other  respects  permits  it  to  be 
made?  The  statutes  expressly  Impose  none, 
and  none  is  to  be  found  by  way  of  Implication 
iinles.<«  the  remonstrant's  construction  of  chap- 
ter 148  of  the  Public  Acts  of  1915  Is  to  be 
accepted  as  correct  As  we  already  have  had 
occasion  to  observe,  practical  reasons  in  sup- 
port of  that  construction  are  not  apparent 
On  the  other  hand,  it  is  easy  to  discover  rea- 
sons and  cogent  ones  in  opposition  to  it    We 


are  of  the  opinion  that  the  owner  of  the  li- 
cense, whether  or  not  he  has  qoallfled  to 
sell  under  it,  may  seU  and  assign  it  as  a 
piece  of  property  to  another  who  may  make 
application  to  sell  under  it  as  a  transferee. 

[3]  But  the  remonstrant  Is  not  driven  to 
rely  np<m  the  broad  proposition  Just  dis- 
cussed. He  advances  a  more  narrow  one 
based  upon  that  portion  of  chapter  36  of  the 
Public  Acts  of  1915,  which  provides  that  a 
license  sold  upon  execution  shall  for  its 
unexpired  term  be  as  valid  In  the  hands  of 
its  purchaser  as  In  the  hands  of  the  original 
licensee,  "provided  before  such  purchaser 
may  avail  himself  of  the  benefit  of  such 
license,  he  shall  comply  with  all  the  require- 
ments of  law  relative  to  the  procuring  of  an 
original  license."  His  claim  is  that  here, 
by  implication  at  least,  is  a  direction  that 
an  execution  purchaser,  and  of  a  necessity 
therefore  his  assignee,  must  if  he  would 
avail  himself  of  any  beneficial  use  of  the 
purchased  license,  appear  before  the  county 
commissioners  in  all  respects  as  an  original 
applicant,  and  be  governed  by  aU  the  statu- 
utory  regulations  concerning  the  granting  of 
licenses  to  such  applicants.  As  one  of  these 
regulations  is  the  prohibition  of  the  issuance 
of  a  license  to  sell  at  a  place  located  within 
200  feet  of  a  church  edifice,  he  says  that 
it  follows  that  an  execution  purchaser  appli- 
cant comes  within  the  operation  of  that  pro- 
hibition. 

He  is,  of  course,  correct  in  his  statement 
that  an  assignee  of  an  execution  purchaser 
can  stand  in  no  better  position  as  an  ap- 
plicant for  leave  to  sell  than  wotdd  his  as- 
slitnor  If  he  were  making  such  application. 
If  it  be  so  that  the  law  provides  a  special 
rule  for  the  case  of  an  execution  purchaser 
so  that  he  Is  made  to  occupy  a  different  and 
less  advantageous  position  when  he  seeks  to 
utilize  his  purchase  by  qualifylhg  as  a  seller 
from  that  occupied  by  voluntary  assignees  of 
licensed  persons,  then,  without  doubt,  every 
owner  under  him  of  the  license  stands  In  no 
letter  position.  The  controlling  question 
therefore  is:  Does  our  law  make  execution 
purchasers  a  class  apart  from  all  other  pur- 
chasers, end  subject  them,  when  they  seek  to 
avail  themselves  of  their  purchases,  to  dif- 
ferent and  more  stringent  regulations  than 
those  to  which  all  other  purchasers  are  sub- 
jected? 

In  answering  this  question  the  particular 
provision  of  statute  which  alone  Is  relied  up- 
on as  accomplishing  that  result  should  be 
read  in  connection  with  the  other  provisions 
touching  the  same  g«ieral  subject,  and  such 
construction,  consistent  with  the  language 
used,  given  to  It  as  will  make  a  harmonious 
and  consistent  whole.  In  arriving  at  that 
construction,  the  evil  sought  to  be  avoided 
should  be  borne  in  mind. 

The  evil  which  our  law  governing  transfers 
of  license  privileges  seeks  to  avoid  manifest- 
ly Is  the  sale  of  spirituous  and.iQtoxicatlng' 


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101  ATLANTIC  REPORTER 


(Conn. 


liquors  by  persons  whose  fitness  to  do  so  has 
not  been  passed  upon  and  approved  by  the 
licensing  authorities.  Our  policy  In  that 
regard  Is  clearly  indicated  by  our  statutes. 
We  insist  that  every  would-be  seller  shall 
present  his  application  for  leave  to  sell  to  the 
county  commissioners,  and  that  they,  after  a 
formal  hearing  upon  a  prescribed  notice,  pass 
upon  his  fitness  to  exercise  the  desired  privi- 
lege. This  requirement  extends  to  every 
one  whether  he  be  an  original  applicant  or 
one  desiring  to  sell  as  a  substitute  licensee. 

When  the  applicant  seeks  to  exercise  tbe 
right  which  was  originally  given  to  another, 
a  transfer  of  the  license  becomes  necessary. 
That  transfer  is  not  accomplished  by  a  pui> 
chase  and  assignment  of  the  license.  It  Is 
accomplished  when,  and  only  when,  the  coun- 
ty commissioners  have  signified  their  con- 
sent to  the  substitution  of  licensee.  Chapter 
148,  P.  A.  191f5.  Our  statutes  make  it 
clear  that  the  word  "transfer,"  as  used  in 
them,  refers  not  to  the  transaction  as  be- 
tween Individuals  whereby  the  property  In- 
terest passes,  bxit  to  the  transfer  of  the  right 
to  sell  which  follows  the  county  commis- 
sioners' consent.  It  matters  not  whether  the 
license,  as  representing  an  inchoate  right  to 
sell,  was  obtained  by  a  third  party  through 
a  voluntary  assignment  or  upon  execution 
sale.  There  is  no  transfer  within  the  mean- 
ing of  our  statutes  until  the  county  commis- 
sioners have  given  their  consent  to  the  sub- 
stitution of  parties,  and  there  is  in  either 
case  one  when  that  consent  is  given. 

Bearing  in  mind  that  fact  and  also  that 
chapter  282,  the  latest  In  the  order  of  enact- 
ment of  the  license  statutes,  in  unrestricted 
language  exempts  transfers  from  the  opera- 
tion of  the  prohibition  against  the  grant 
of  licenses  for  a  place  located  within  200 
feet  of  a  church  edifice,  and  also  that  no 
reasons  are  apparent  for  the  making  of  a 
distinction  between  purchasers  of  different 
classes,  it  is  reasonably  manifest  that  the 
two  statutory  provisions  should  be  read  the 
one  as  prescribing  the  applicant's  course  of 
action,  and  the  other  the  county  commission- 
ers' duty  in  passing  upon  his  application 
when  duly  presented.  By  force  of  chapter 
36  the  applicant  must  proceed  in  the  matter 
of  application  in  all  respects  as  an  original 
applicant  is  required  to  do.  By  virtue  of 
chapter  282  the  county  commissioners.  In 
passing  upon  the  application  when  thus  pre- 
sented, are  to  be  governed  by  the  regulations 
touching  transfers. 

[4,  {]  The  remonstrant's  claim  tluit  the 
plaintiff's  application  was  fraudulent  is  based 
largely  upon  his  assumption  of  an  alleged 
false  position  in  asserting  that  be  desired  a 
transfer  of  Sullivan's  license  and  in  asking 
for  such  transfer  when  he  was  in  no  position 
to  claim  it.  What  we  have  said  upon  that 
subject  disposes  of  that  feature  of  the  charge 
of  fraud.    The  charge  is  also  based  in  part 


upon  the  fact  that  at  the  time  the  application 
was  made  the  Yale  Brewing  Company  had 
not  in  fact  perfected  its  assignment  to  the 
applicant,  although  it  was  perfected  prior 
to  the  hearing  before  the  commissioners.  No- 
where in  the  application  or  tn  the  applicant's 
affidavit  accompanying  it  Is  it  said  that  the 
assignment  had  been  made.  The  applica- 
tion was  for  a  transfer  of  Snllivan's  license 
to  Davis,  and  nothing  more.  We  discover  no 
misrepresentation  of  fact  by  Davis,  nor  pos- 
sibility of  misunderstanding  or  misconception 
on  the  part  of  the  commissioners  as  to  any 
material  matter  Involved  in  their  decision. 
It  does  not  appear  but  that  the  situation 
was  fully  understood  by  all,  and  It  is  of  no 
practical  Importance  whether  or  not  the  as- 
signment to  Davis  was  in  form  executed  at 
the  time  of  the  application's  date. 

The  superior  court  is  advised  to  a£9rm 
the  order  of  the  county  commissioners. 

No  costs  in  this  court  will  be  taxed  in  favor 
of  either  of  the  parties.  The  other  Judges 
concurred. 

01  Conn.  682) 
TURNER  V.  CONNECTICUT  CO. 

(Suprome  Court  of  Errors  of  Connecticut, 
June  14,  1917.) 

1.  Appeai.  and  Erbor  <S=»704(2)  —  Cobbec- 
TiON  OF  Finding  —  Meuorandum  of  Deci- 
sion. 

The  memorandum  of  decision,  not  being 
made  a  part  of  the  finding,  cannot  be  corrected 
on  appeu. 

[Ei.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |S  2900,  2939,  2941.] 

2.  Appeal  and  Error  iS=>536  —  Record  — 
Agreed  Statement  of  Facts. 

An  agreed  statement  of  facts,  not  being  cer- 
tified to  by  the  trial  court  and  made  part  of  the 
record,  has  no  place  therein. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §§  2402,  2403.] 

3.  Appeal  and  Error  «=>656(3)— Correction 
or  Finding. 

Appellant  cannot  have  correction  on  appeal 
under  the  method  of  Gen.  St,  1902,  |  797,  of  a 
finding  of  the  trial  court,  without  having  the 
evidence  certified  and  made  part  of  the  record. 

4.  Carriers  «=>12{1)  —  Power  to  REonLAXS 
Charges.  ,        ,     ,^^ 

Under  Public  Service  Corporations  Act  (Pub. 
Acts  1911,  c.  128)  i  23,  it  is  only  after  hearing 
on  complaint  and  finding  that  the  rates  made  by 
a  Public  Service  Corporation  are  unreasonable 
that  the  Public  Service  Commission  may  disturb 
them,  and  determine  and  prescribe  just  and  rea- 
sonable maximum  rates  and  charges. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  §{  7,  15-20.] 

5.  Carriers  «=9l8(2) —Rates— Appeai.  from 
Order— Review  by  Court. 

Under  Public  Service  Corporations  Act  (Pub. 
Acts  1911,  c.  128)  I  29,  providing  for  appeal 
from  the  Commission  to  the  superior  court,  and 
section  31,  as  amended  by  Pub.  Acts  1913,  c. 
225,  providing  that  said  court  shall  hear  such 
appoeJ  and  examine  the  question  of  legality  o' 
the  order  and  the  propriety  and  expediency 
thereof  in  so  far  as  it  may  properly  have  cog- 
nisance of  the  subject,  the  court  may  determine 
whether  the  Commission's  order  fixing  maximum 


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TURNER  ▼.  CONNEOTIOUT  00. 


89 


rates,  or  dedioing  to  change  the  rates  fixed  by 
the  company,  is  valid,  by  ascertaining  whether 
the  rate  so  fixed  or  left  unchanged  was  reason- 
able;   this  being  a  judicial  question. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  H  IB,  16-18,  20,  24.] 

6.  PuBuc  Service  CoiotissioNS  €s»7— "Riu.- 
BOKABI.E  Rate." 

The  reasonableness  of  a  rate  fixed  by  or  for 
a  public  service  corporation  is  to  be  determined 
after  viewing  its  effect  on  the  public  as  well  as 
the  company;  the  rate  being  unreasonable  if  so 
low  as  to  be  destructive  of  ttio  company's  prop- 
city  or  if  so  high,  either  intrinsically  or  because 
discriminatory,  aa  to  be  an  unjust  exaction  from 
the  pubUc. 

[Kd.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Roason- 
able  Rate.] 

7.  CABBIKBa  «=»13(2)  —  Ratks  —  DiBCHauiNA- 

TION. 

In  determining  whether  the  rate  of  a  carrier 
in  one  locality  is,  in  view  of  its  rates  in  other 
localities,  discriminatory,  depending  on  tho  lo- 
calities being  similarly  situated  and  subject  to 
like  conditions,  the  element  of  distance  is  not 
necessarily   a   controlling  factor. 

[Ed.  Note. — ^For  other  cases,  see  OarTicrs, 
Gent  Dig.  {{  22,  21.] 

&  Appeal  and  Ebbob  <8=s»1010(1)— Rbview— 

Questions  of  Fact. 
The  facts  found  not  supporting,  much  less 
requiring,  the  conclusion  that  a  carrier's  rate 
was  excessive  or  discriminatory,  the  Supreme 
Court  cannot  disturb  the  trial  court's  adjudica- 
tion sustaining  the  Public  Service  Commission's 
determination  of  reasonableness  of  the  rate. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |$  3979-3981,  4024.] 

Appeal  from  Superior  Court,  Fairfield 
County;    Edwin  B.  Gager,  Judge. 

Petition  by  Jcihn  C.  Turner  and  others 
against  the  Connecticut  Company.  From 
Judgment  of  court,  on  appeal  from  Public 
Utilities  Commission,  petitioner  Turner  ap- 
peals.   Affirmed. 

Petition  for  a  reduction  in  the  rates  of 
fare  charged  by  the  respondent  between  cer- 
tain points  on  one  of  its  lines  running  from 
Stamford  to  Norwalk,  which  rates  were  al- 
leged to  be  unreasonable,  brought  to  the  Pub- 
lic Utilities  Commission,  who  heard  and  de- 
nied the  petition;  and  thence  by  appeal  to 
the  superior  court ;  facts  found  and  Judgment 
rendered  conflrmlng  the  action  of  the  Public 
Utilities  Commission,  from  which  the  peti- 
tioner Turner  appealed. 

•nie  Connecticut  Company  operates  seven 
electric  street  car  lines  on  Its  Stamford 
division  which  converge  at  Atlantic  square 
in  Stamford.  Two  of  these  lines  run  out- 
side of  Stamford,  one  to  Sound  Beach  and  one 
to  Noroton,  and  five  terminate  at  suburban 
points  in  Stamford.  Passengers  riding  from 
Atlantic  square  to  Noroton  bridge,  a  distance 
of  2.33  miles,  pay  one  flre-cent  fare,  and  an- 
other fare  from  that  point  to  Noroton  village 
and  points  beyond.  Passengers  riding  from 
Atlantic  square  to  Sound  Beach  and  the  five 
suburban  lines  pay  one  five-cent  fare,  and 
on  three  of  these  lines  ride  less  than  the 
distance  from  the  square  to  Noroton  bridge,  | 


while  on  three  they  ride  a  greater  distance, 
viz.  to  Sprlngdale,  3.5  mUes ;  to  Sound  Beach, 
3.22  miles,  and  to  Shippan  Point,  2.79  miles. 
The  New  York  and  Stamford  Railway  Com- 
pany operates  an  electric  street  car  line 
which  converges  at  said  Atlantic  square. 
Passengers  riding  by  this  line  from  the  square 
to  Cos  Cob,  another  suburb  of  Stamford,  pay 
one  five-cent  fare  and  ride  3.8  miles.  Passen- 
gers on  all  of  these  lines  may  transfer  at  the 
square  from  one  of  these  lines  to  any  of  the 
others.  The  village  of  Noroton  was  original- 
ly a  part  of  Stamford,  and  in  all  of  its  as- 
sociations is  closely  connected  vtritb  Stam- 
ford. In  point  of  healthfulness,  natural 
beauty,  and  the  character  of  its  population 
it  is  a  desirable  place  to  live,  and  is  in  no 
particular  Inferior  to  Sprlngdale  or  Cos  Cob. 
Since  the  electric  street  car  line  was  built 
through  Noroton  two  houses  have  been  built 
between  the  Noroton  bridge  turnout  and  St. 
I>uke's  Church,  and  14  houses  have  been  built 
west  of  and  within  one  quarter  of  a  mile  of 
the  Noroton  bridge.  Since  the  electric  street 
car  line  was  built  to  Springdale  and  the  five- 
cent  fare  established  between  Sprlngdale 
and  Stamford,  170  houses  have  been  built 
in  Springdale,  and  Its  population  has  in- 
creased rapidly  and  largely. 

On  February  24,  1915,  the  appellant,  to- 
gether with  nine  other  residents  of  Darlen, 
petitioned  the  Public  Utilities  Commission— 
"to  order  a  fare  extension  or  'lap  over'  so  call- 
ed, operative  in  both  directions  between  the  said 
>oroton  river  bridge  and  said  St  Luke's  Church, 
or  to  make  such  other  adjustment  of  fares  as 
may  be  necessary  or  advisable,  so  as  to  give  a 
single  five-cent  rate  or  charge  for  each  passen- 
ger between  Atlantic  square  and  St.  Luke's 
Church." 

The  term  'lap  over"  is  one  used  in  refer- 
ence to  electric  street  car  lines  to  denote  the 
distance  which  a  passenger  Is  allowed  to 
ride  beyond  a  given  fare  limit  before  he  Is 
required  to  pay  another  fare,  or  upon  taking 
a  car  going  in  the  opposite  direction,  the 
distance  which  he  may  ride  before  reaching 
a  given  fare  limit  at  which  he  will  be  re- 
quired to  pay  a  fare. 

The  Stamford  division  is  one  of  the  poorest 
earning  divisions  in  the  company's  system, 
and  the  Stamford  portion  of  the  Stamford- 
Norwalk  line  of  the  Connecticut  Company's 
system  Is  one  of  the  best  earning  lines  in 
this  division.  The  establishment  of  the  pro- 
posed lap  over  to  St  Luke's  Church  would 
extend  the  first  five-cent  limit  out  of  Stam- 
ford, and  thereby  to  some  extent  decrease  the 
net  earnings  of  the  Stamford  division. 

In  December,  1914,  by  agreement  the  towns 
of  Stamford  and  Darien  paid  $2,500  on  ac- 
count of  the  cost  of  widening  the  said  bridge 
over  Noroton  river  and  the  Connecticut  Com- 
pany the  balance  of  said  cost,  $3,162,  and  in 
addition  $33,000  in  making  physical  connec- 
tion between  Its  lines  and  Noroton  river  and 
providing  other  facilities  for  through  traffic. 


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101  ATIiANTIC  RSPORTER 


(Conn. 


The  Connecticut  Company  thereafter  laid  Its 
tracks  across  the  bridge  and  thus  connected 
Its  tracks,  and  this  was  the  last  step  to 
complete  a  continuous  line  of  electric  street 
tracks  between  New  York  and  Boston. 

The  Commission  found  and  held  that  the 
facts  before  them  did  not  establish  the  un- 
reasonableness of  the  present  rate,  and  there- 
fore denied  the  petition.  The  superior  court 
adjudged  that  the  action  of  the  Commission 
was  reasonable  and  proper,  and  confirmed 
It  and  dismissed  the  appeal. 

WUUam  T.  Andrews  and  Peter  Dondlinger, 
both  of  Stamford,  for  appellant  Seth  W. 
Baldwin,  of  New  Haven,  for  appellee. 

WHBELBH,  J.  (after  stating  the  facts  as 
above).  [1-3]  The  first  seven  assignments  of 
error  are  assumed  by  the  appellant  to  relate 
to  the  correction  of  the  finding.  In  fact  they 
relate  to  matters  which  are  parts  of  the 
memorandum  of  decision.  That  Is  not  made 
a  part  of  the  finding,  so  that  Its  correction 
cannot  be  had.  The  cause  Is  to  be  decided 
upon  the  facts  found,  not  upon  those  contain- 
ed In  the  memorandum  of  decision.  Far- 
ther, the  agreed  statements  of  facts  which 
the  appellant  assumes  to  be  a  part  of  the 
record  had  no  place  in  the  record.  They 
were  not  certified  to  by  the  trial  court  and 
made  a  part  of  the  record.  So  far  as  we 
know,  they  were  not  necessarily  before  the 
trial  court,  and  certainly  were  not  necessari- 
ly the  only  facts  In  evidence.  Counsel  for 
the  appellee  say  the  appellant  petitioner  In- 
troduced oral  testimony.  Whether  this  is 
accurate  or  not,  the  appellant  cannot  secure 
the  correction  of  the  finding  under  the 
method  of  General  Statutes,  {  797,  without 
having  the  evidence  certified  and  made  a  part 
of  the  record.  The  assignments  of  error, 
aside  from  those  relating  to  the  correction 
of  the  finding,  are  varying  ways  of  stating 
the  single  point  tliat  the  trial  court  erred  in 
holding  that  the  action  of  the  Commission 
was  reasonable  in  finding  and  deciding  that 
the  present  rates  complained  of  were  not 
unreasonable.  The  act  regulating  Public 
Service  Corporations  (Public  Acts  of  1911, 
c.  128)  In  section  23  provides  tliat: 

"Any  ten  patrons  of  any  such  company  •  •  • 
may  bring  a  written  petition  to  the  Commission 
alleging  that  the  rates  or  charges  made  by  such 
company     •     •     •    are  unreasonable." 

Thereupon,  after  bearing  had,  the  Com- 
mission, If  It  finds  such  rates  and  charges 
to  be  unreasonable,  may  determine  and  pre- 
scribe Just  and  reasonable  maximum  rates 
and  charges  to  be  thereafter  made  by  such 
company,  and  said  compauy  shall  not  there- 
after demand  any  rate  or  charge  in  excess 
of  the  maximum  rate  or  charge  so  prescribed. 

The  limitation  of  rates  to  what  are  rea- 
sonable is  the  enactment  in  statutory  form 
of  an  ancient  rule  of  the  common  law.  Rari- 
tan.  River  R,  O).  v.  Traction  (3o.,  70  N.  J. 
Law  (41  Vroom)  732,  743,  58  Atl.  332;  Rea- 
gan V.  Farmers'  Loan  &  Trust  Co.,  154  U.  S. 


362,  397,  14  Sup.  Ct  1047,  88  L.  Ed.  1014; 
LoulsvUle  &  N.  R.  (30.  v.  Garrett,  231  U.  S. 
298,  311,  34  Sup.  Ct  48,  B8  L.  Bd.  229. 

"To  limit  the  rate  of  charge  for  services  ren- 
dered in  a  public  employment,  or  for  the  use  of 
property  in  which  the  public  has  an  interest,  is 
only  changing  a  regulation  which  existed  be- 
fore. It  establishes  no  new  principle  in  the  law. 
but  only  giyes  a  new  effect  to  an  old  one." 
Munn  V.  IlUnois,  94  U.  8. 113,  24  L.  Ed.  77. 

[4]  The  remedy  for  the  enforcement  of 
reasonable  rates  provided  by  our  act  was 
new  in  this  Jurisdiction.  So  long  as  the 
company  establishes  reasonable  rates,  these 
cannot  be  lowered  by  commission  or  court. 
When  it  faUs  in  this  duty  the  Public  Utili- 
ties Commission  is  authorized  to  prescribe 
Just  and  reasonable  maximum  rates.  And  its 
authority,  under  this  act  may  be  invoked 
whenever  the  rates  as  fixed  are  either  so 
high  or  so  low  as  to  be  unreasonable.  The 
Commission  Is  an  administrative  one,  with 
the  delegated  legislative  function  of  fixing 
railway  rates. 

[6]  A  court  may  not  be  required  to  fix  or 
regulate  a  tariff  of  rates  for  services  to  he 
rendered  by  a  public  service  corporation, 
since  this  Is  a  legislative  function  and  may 
be  conferred  by  law  upon  a  specially  desig- 
nated ministerial  body.  Reagan  v.  Farmers* 
Loan  &  Trust  Co.,  154  U.  S.  302,  397,  14 
Sup.  Ct  1047,  38  L.  Ed.  1014;  Interstate 
Commerce  Commission  y.  Railway  Co.,  167 
U.  S.  479,  499,  17  Sup.  <3t  896,  42  L.  Ed.  248; 
Janvrin,  Petitioner,  174  Mass.  614,  55  N.  E. 
381,  47  L.  R.  A.  819;  Raritan  River  R.  Co.  v. 
Traction  <3o.,  70  N.  J.  Law  (41  Vroom)  732,  68 
Atl.  332. 

Section  29  of  the  act  provides  for  an  ap- 
peal to  the  superior  court  from  any  order  of 
the  Commission.  And  section  31,  as  amend- 
ed by  chapter  225  of  the  Public  AcU  of  1913, 
provides  that: 

"Said  court  shall  hoar  such  appeal  and  exam- 
ine the  question  of  the  legality  of  the  order 
•  •  •  and  the  propriety  and  expediency  of 
such  order  *  *  *  in  so  far  as  said  court  may 
properly  have  cognizance  of  such  subject." 

Under  this  provision  the  court  may  hear 
and  determine  whether  the  order  of  the  Com- 
mission fixing  maximum  rates,  or  its  order 
declining  to  change  the  rate  fixed  by  the 
company,  is  -  valid  or  not  by  ascertaining 
whether  the  rate  so  fixed  or  the  rate  un- 
changed was  reasonable  or  not  Such  a 
question  Is  a  Judicial  one. 

It  has  been  so  held  in  construing  a  like  or 
similar  provision  in  state  and  federal  stat- 
ute. Janvrin,  Petitioner,  174  Mass.  514,  55 
N.  B.  381,  47  L.  R.  A.  319 ;  Raritan  River  R. 
(30.  V.  Traction  Co.,  70  N.  J.  Law  (41  Vroom) 
732,  743,  58  Atl.  332;  Chicago,  M.  &  St  P. 
Co.  V.  Minnesota,  134  U.  S.  418,  458.  10  Sup. 
Ct.  4G2,  702,  33  L.  Ed.  970;  Smyth  v.  Ames, 
169  U.  S.  466,  18  Sup.  Ct  418,  42  L.  Ed.  810 ; 
Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154 
U.  S.  362,  397.  14  Sup.  Ct  1047,  38  L.  Ed. 
1014;  Prentls  v.  Atlantic  CJoast  Line  Co.,  211 
U.  S.  210,  29  Sup.  Ct  67,  53  L.  Bd.  150. 

[6]  The  reasonableness  of  the  rate  is  to 


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Conn.) 


TUBNEB  T.  CONNECTICUT  CO. 


«1 


1)e  determined  after  viewing  its  effect  upon 
the  public  as  well  as  upon  the  company.  The 
rate  may,  on  the  one  hand,  be  so  low  as.  to 
he  destructive  of  the  property  of  the  com- 
pany, or  it  may  be  so  hi^  as  to  be  an  un- 
just exaction  from  the  public;  either  in- 
trinsically so,  or  because  It  is  discrimina- 
tory. In  either  instance  the  rate  is  unrea- 
sonable. What  the  court  does  iin  passing 
upon  this  question  Is  to  doclde  after  hearing 
had  in  the  course  of  a  Judicial  proceeding, 
whether  the  rate  complained  of  is  so  high  or 
«o  low  as  to  be  unreasonable.  No  satisfac- 
tory definition  of  reasonable,  as  applied  to 
rates,  applicable  to  each  case,  can  be  made. 
Each  must  be  decided  upon  its  own  facts  and 
upon  a  consideration  of  many  varying  ele- 
ments. A  passenger  rate  upon  a  railway,  to 
be  reasonable,  must  be  Just  to  the  public  as 
well  as  to  the  railway.  It  should  be  large 
enough  to  provide  for  the  passenger  reason- 
able service  and  for  the  railway  a  reasonable 
return.  The  rate  may  be  made  high  enough 
to  cover  the  cost  of  service,  the  carrying 
charges,  a  reasonable  sum  for  depreciation, 
and  a  fair  return  upon  the  investment.  Less 
than  this  will  not  give  the  railway  a  reason- 
able rate.  The  action  of  a  utilities  com- 
mission which  reduces  a  rate  below  this 
point  unduly  deprives  the  owners  of  their 
property  without  Just  compensation.  If  a 
rate  exceeds  this  point  to  an  appreciable  de- 
gree and  the  Commission,  upon  proper  ap- 
plication, declines  to  reduce  it,  the  court 
would,  in  the  absence  of  other  controlling 
facts,  reduce  it  to  a  reasonable  point. 

[7]  If  a  rate  in  one  locality  is  largely  in 
fxcess  of  rates  in  other  localities  similarly 
sltnated  and  subject  to  like  conditions,  it  is 
an  imreasonable  rate,  for  this  would  instance 
a  discrimination  against  one  locality  in  favor 
of  another,  or  other  localities.  A  discrimi- 
nating rate  of  this  character  would  be  an  un- 
reasonable rate,  since  as  a  general  principle 
the  service  of  a  public  utility  should  be  equal 
to  all  patrons  similarly  circumstanced.  Bald- 
win, American  Railroad  Law,  c.  26,  f  6; 
BUlottonKallroads,§  1167;  Union  PadflcRy. 
Co.  T.  Goodrldge,  149  U.  S.  680,  690,  13  Sup. 
Ct.  970,  37  L.  Ed.  S96;  Western  Union  Tele- 
graph Ca  T.  Call  Pub.  Co.,  181  U.  iS.  92,  99, 
21  Sup.  Ct.  561,  45  I*  Ed.  765 ;  Portland  By., 
L.  &  P.  G.  ▼.  Oregon  B.  B.  Commission,  229 
i;.  S.  397,  411,  33  Sup.  Ct  820,  57  L.  Ed.  1248. 

When  we  examine  the  finding  before  us  we 
see  that  there  are  no  facts  found  from  which 
it  could  have  been  inferred  as  matter  of  fact 
by  the  trial  court,  or  must  be  Inferred  by 
us  as  matter  of  law,  that  the  ten-cent  rate 
between  Atlantic  Square  and  Noroton  is  ex- 
orbitant or  excessive.  We  have  not  before  us 
the  cost  of  service  between  these  points,  nor 
the  fair  share  of  the  carrying  charges  and  of 
depreciation,  or  what  would  be  a  fair  re- 
turn, for  this  distance.  We  are  not  given  ei- 
ther the  gross  or  net  earnings,  or  the  per  car 
hour,  or  per  car  mile  earnings.  Nor  are  the 
conditions  found  to  be  similar.    All  that  the 


finding  tells  us  la  that  the  earnings  are  less 
on  this  system  than  on  the  defendant's  other 
systems.  This  unrelated  fact,  by  itself,  does 
not  help  in  ascertaining  what,  if  any,  profits 
there  are  from  this  rate,  and  whether  they 
are  excessive  or  exorbitant  The  petitioner 
does  not  stand  upon  the  Intrinsic  unreason- 
ableness of  this  rate,  but  upon  the  claim 
that  this  rate  is  a  discriminatory  one,  and 
results  and  has  resulted  to  the  serious  disad- 
vantage of  the  people  of  the  village  of  Noro- 
ton. 

It  would  seem,  from  the  facts  found,  that 
an  Inference  of  fttct  may  have  been  Justified 
that  Sprtngdale  had  grown  greatly  and  Noro- 
ton had  not,  because  of  the  one  commimity 
having  bad  a  five-cent  rate  to  Atlantic  square 
and  the  other  not  But  we  cannot  so  con- 
clude, unless  there  Is  a  specific  finding  of 
that  fact  Many  other  considerations  may 
have  operated  or  largely  contributed  to  this 
result  We  may  assume  that  a  five-cent  rate 
would  benefit  Noroton  and  its  public,  for 
this  Is  a  self-evident  fact  But  we  do  not 
know  what  its  effect  would  be  upon  the  re- 
turns to  the  railway.  It  may  be  held  to  be 
a  principle  of  tra£Qc  that  a  reduction  of 
rates  Increases  the  volume  of  business,  but 
no  principle  which  we  are  at  liberty  to  re- 
gard tells  us  In  a  given  case  what  will  be  the 
extent  of  tlie  increase,  or  what  the  effect  up- 
on the  net  returns.  Chicago,  etc..  By.  Co.  v. 
WeUman,  143  U.  S.  339.  344,  12  Sup.  Ct  400, 
36  L.  Ed.  176. 

In  determining  the  reasonableness  of  a 
rate  we  cannot  leave  out  of  the  consideration 
the  effect  of  the  change  of  rate  upon  the  rail- 
way return  any  more  than  we  can  that  upon 
the  public. 

The  petitioner's  case  reduces  itself  to  this: 
That  the  schedule  of  rates  upon  the  Stam- 
ford division  gives  a  materially  longer  ride 
for  a  single  five-cent  fare  on  some  of  the 
lines  converging  at  Atlantic  square  than  It 
does  en  the  Noroton  line.  In  a  similar  situa- 
tion the  court  say: 

"The  question  presented  for  consideration  is 
not  the  reasonableness  per  se  of  the  charge,  but 
its  reasonableness  considered  in  relation  to 
charges  made  by  plaintiff  at  other  localities  on 
its  system  for  like  and  contemporaneous  serv- 
ice. •  •  •  The  discrimination,  without  an 
excuse  recognized  by  tlie  law,  would  be  in  and 
of  itself  unjust  and  unreasonable."  Portland 
By.  L.  &  P.  Co.  V.  Oregon  B.  Commission,  229 
U.  S.  397,  411,  33  Sup.  OL  820,  57  L.  Ed.  1248. 

The  petitioner  is  accurate  In  his  claim  as 
to  the  lines  to  Springdale,  Sound  Beach,  and 
Shippan's  Point  but  as  to  the  other  tliree 
lines  converging  at  the  square  the  single  five- 
cent  fare  on  the  Noroton  line  gives  the  longer 
ride.  And  the  distance  covered  by  the  sin- 
gle five-cent  fare  en  the  Noroton  line  is  prac- 
tically the  average  distance  the  single  fare 
will  carry  a  passenger  on  all  the  lines  of  the 
system  converging  at  the  square. 

The  element  of  distance  may  be  a  controll- 
ing factor  In  a  case  of  discrimination,  but 
not  Invariably  so.    As  a  rule,  other  factors 


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101  ATLANTIC  REPOUTEtt 


(Conn. 


are  neopssnrlly  relevant  before  the  conclusion 
of  a  (llscrlnilnatlon  in  rates  can  be  made. 
Facts  which  affect  the  question  of  traffic 
profit  are  factors  to  be  considered.  It  may 
be  that  a  divergence  In  rates  between  com- 
munities similarly  conditioned  would  be  dis- 
criminatory irrespective  of  the  element  of 
traffic  profit  That  situation  we  leave  open 
until  it  presents  itself.  And  the  Identity  or 
similarity  of  cpnditions  are  also  important 
factors  in  determining  whether  a  rate  Is  dis- 
criminatory. 

18  J  Tlie  foundation  of  the  petitioner's  claim 
of  a  discrimination  is  that  the  defendant 
charges  "Noroton  passengers  twice  the  fare 
that  it  charges  to  other  passengers  similarly 
circumstanced."  The  finding  does  not  sup- 
port this.  The  Judgment  must  be  controlled 
by  the  finding.  And  upon  that  we  cannot 
hold  that  there  was  any  undue  preference  or 
advantage  in  the  other  rates,  or  that  the 
trial  court  erred  in  concluding  that  the  rate 
complained  of  was  not  reasonable,  for  the 
facts  found  do  not  support,  much  less  re- 
quire, the  conclusion  that  this  rate  is  either 
exorbitant,  excessive,  or  discriminatory. 

There  is  no  error.  The  other  Judges  con- 
curred. 


(91  Oonn.  727) 
BUIiKELEX  ▼,  BROTHERHOOD  ACCI- 
DENT CO. 

(Sapreme  Court  of  Errors  of  Connecticut 
June  14,  1017.) 

1.  Insurance  €=3339  —  Accident  Insdkancb 
— Chanok  or  Occupation. 

The  act  of  setting  off  a  single  firework  la 
not  a  change  of  occupation  from  that  of  garden- 
er to  that  of  user  or  handler  of  fireworks,  with- 
in the  provision  of  an  accident  policy. 

[Ed.   Note.— For  other  cases,   see   Insurance, 
Cent.  Dig.  J  87».] 

2.  Insurance   €=»461(1)  —  Accident   Insub- 

ANCE — VOLUNTABT  EXPOSURE  TO  DANOEB. 

Evidence  that  the  bombs  were  ordinarily 
safe,  that  from  one  to  two  minutes  usually  elaps- 
ed between  the  lighting  of  the  fuse  and  the  ex- 
plosion of  the  charge,  which  threw  the  bomb 
upwards,  and  that  insured,  his  employer,  and 
members  of  the  family  bad  set  off  a  great  many 
of  them  on  other  occasions,  is  enough  to  show 
that  the  act  of  setting  off  in  the  usual  way  a 
bomb,  a  firework,  was  not  a  voluntary  exposure 
to  unnecessary  danger,  within  the  provision  of 
an  accident  policy. 

[Ed.  Note. — Far  other  cases,   see  Insurance, 
Cent  Dig.  f  1180.] 

3.  Evidence  €=>126(2)— Declarations— Man- 
ner OF  Accident. 

Relative  to  the  question  whether  insured, 
fatally  Injured  t^  explosion  of  a  bomb  which 
he  was  setting  c^,  voluntary  exposed  himself  to 
unnecessary  danger,  within  the  provision  of  his 
accident  policy,  his  declarations  while  mi  the 
way  to  the  hospital,  in  answer  to  the  question 
as  to  what  happened,  that  it  went  off  sooner  than 
he  expected,  and  something  about  a  quick-burn- 
ing fuse,  aU  that  witness  could  remember,  are 
relevant  and  admissible,  and  make  it  more  prob- 
able that  the   accident  occurred   because  of  a 


quick-firing  fuse  than  from  attempting  to  set 
off  the  bomb  in  some  unusual  way. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  {  373.] 

Appeal  from  Superior  Court*  Hartford 
County ;   Milton  A.  Shuniway,  Judge. 

Action  by  Morgan  O.  Bulkeley,  administra- 
tor, against  the  Brotherhood  Accident  Com- 
pany on  a  policy  of  health  and  accident  as- 
Burancfe  From  a  Judgment  for  plaiutlfT,  de- 
fendant appeals.    Affirmed. 

The  plaintiff's  decedent,  Oscar  L.  Johnson, 
a  gardener  In  the  plaintiff's  employ,  was  In- 
jured by  the  explosion  of  a  firework  called  a 
bomb.  Intended  to  be  fired  by  placing  it 
In  a  mortar  and  lighting  a  fuse.  Some  of 
these  fireworks,  left  over  from  the  previous 
Fourth  of  July,  were  found  about  the  prem- 
ises, and  Johnson  was  seen  to  take  a  bomb 
and  mortar  from  plaintiffs  garage  toward 
an  open  place  near  by.  Nobody  witnessed  the 
accident,  but  an  explosion  was  heard,  and 
Johnson  was  observed  rolling  on  the  grass 
trying  to  extinguish  a  fire  burning  In  the 
dothlng  alxtut  his  neck  and  idlest  Two 
days  afterwards  Johnson  died  in  consequence 
of  boms  and  wounds  received  from  the  ex- 
plosion of  the  bomb.  While  being  taken  to 
the  hospital  Johnson  was  asked,  "What  hap- 
pened?'' and  said  that  it  went  off  sooner  thaJi 
he  expected,  and  something  about  a  quick- 
burning  fuse. 

The  policy  exonpts  the  defaidant  from 
liability  for  Injuries  caused  by  "voluntary 
exposure  to  unnecessary  danger,"  and  pro- 
vides that  in  case  of  injury  after  the  Insured 
has  "changed  his  occupation  to  one  classified 
by  the  C(»npan7  as  one  more  hazardous  than 
that  herein  stated"  the  company's  liability 
shall  be  only  for  the  amount  which  the 
premium  would  have  purchased  at  the  rate 
fixed  by  the  company  for  such  more  hazar- 
dous occupation. 

The  complaint  alleges  that  the  Insured 
duly  fulfilled  all  the  conditions  of  the  In- 
surance on  his  part,  and  that  the  death  was 
not  from  any  cause  excepted  In  the  policy. 
The  answer  leaves  the  plaintiff  to  his  proof 
as  to  the  facts,  denies  that  the  assured  ful- 
filled the  conditions  of  the  Insurance,  al- 
leges that  the  Injury  was  caused  by  volun- 
tary exposure  to  unnecessary  danger,  and, 
as  an  alternative  defense,  that  the  assured 
had  changed  his  occupation,  and  was  en- 
gaged in  using  or  handling  fireworks  when 
injured,  whereby  the  company's  liability  was 
reduced  to  $200,  in  respect  of  which  a  tender 
is  pleaded. 

Stewart  N.  Dunning,  of  Hartford,  for  aiH 
pellant  Warren  B.  Johnson,  of  Hartford, 
for  appellee. 

BBACH,  J.  (after  stating  the  facts  as 
above).  [1 , 2]  It  is  too  plain  for  discussion 
that  the  act  of  setting  off  a  single  firework 


CsaFor  oUi«r  caMi  ■••  saiiis  topic  and  KEY-NUMBBK  In  all  Kay-Numbared  Digaat*  and  Indaxa* 


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8CHWEHM  V.  CHBLTEN  TBUST  CO. 


93 


Is  not  a  change  of  occupation  from  that  of 
gardener  to  that  of  a  user  or  handler  of 
fireworks. 

The  other  ground  of  defense,  that  the 
injury  was  caused  by  voluntary  exposure  to 
unnecessary  daager,  rests  upon  the  determi- 
nation of  a  motion  to  correct  the  finding  by 
erasing  therefrom  the  finding  that  the  death 
was  not  from  any  cause  excepted  In  the 
policy,  and  by  substituting  therefor  a  pro- 
posed finding  that  the  plaintiff  offered  no 
evidence  to  show  that  decedent  did  not  volun- 
tarily expose  himself  to  unnecessary  danger. 
It  Is,  however,  unnecessary  to  follow  the  de- 
fendant's argument  any  further,  because  the 
finding  of  the  trial  court  is  supported  by  the 
evidence,  and  the  defense  of  voluntary  ex- 
posure to  unnecessary  danger  Is  disposed  of 
on  the  merits  in  the  plaintiff's  favor.  There 
was  evidence  tending  to  show  that  the  bombs 
were  ordinarily  safe,  that  from  one  to  two 
minutes  usually  elapsed  between  the  lighting 
of  the  fuse  and  the  explosion  of  the  charge 
which  threw  the  bomb  upward,  and  that  the 
decedent,  his  employer,  and  members  of  the 
employer's  family  had  set  off  great  numbers 
of  than  at  Independence  Day  celebrations. 
This  was  enough  to  show  that  the  act  of  set- 
ting off  one  of  these  bombs  in  the  usual  way 
was  not  a  voluntary  exposure  to  unnecessary 
danger. 

[3]  Then  the  question  remained  whether 
Johnson  attempted  to  set  the  bomb  off  in 
some  unusual  way,  or  in  some  other  way 
voluntarily  exposed  himself  to  unnecessary 
danger  In  setting  It  off.  On  this  point  his 
declaratlona  made  while  being  taken  to  the 
hospital  are  relevant  and  admissible,  and 
they  make  it  more  probable  than  otherwise 
that  the  accident  occurred  because  of  a  de- 
fective quick-firing  fuse.  Defendant  excepted 
to  the  admission  of  these  declarations,  and 
now  makes  the  claim  that  they  were  too 
vague  and  indefinite  to  be  admitted  in  evi- 
dence. This,  however,  was  the  fault  of  the 
witness  to  whom  the  declarations  were  made, 
who  was  obliged  to  give  the  substance  of 
what  was  said  because  he  could  not  remember 
the  words.  Taking  these  disconnected  phras- 
es as  expressing  the  snbstance  of  John- 
son's dedaratlons,  there  is  no  difficulty  what- 
ever in  {rupportlng  the  finding  of  the  trial 
court  that  the  death  was  not  from  any  cause 
excepted  in  the  policy. 

There  Is  no  error.  The  other  Judges  con- 
curred. 


(JB7  Pa.  78) 
SOHWEHM  V.  OHELTBN  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

1.  BmLDIICG    AND     LOAIT     AsSOCIATIOITS     C=» 

23(4)  —  AxrrHOMTT  or  Pbesidewt  oip  LiOa.n 

SOCIXTT— MlSAPPBOPElATION— LlABrLITT. 

The  president  of  a  loan  society,  whom  the 
hy-laws  made  the  chief  executive  officer  and  ac- 


tive manager,  was  authorized  to  accept  money 
paid  to  the  society  by  cash  or  by  check  to  its 
order,  and  his  misappropriation  of  funds  so 
paid  was  the  loss  of  the  society. 

[Ed.  Note. — For  other  cases,  see  Building  and 
Loan  Associations,  Cent.  Dig.  S  29.] 

2.  Banks  and  Banking  *=>109(2)  —  Piiesi- 

DENT   or  IXIAN    SOOIETT  —   InDOBSEUSNT   OF 

Bills  ok  Notes. 
Where   the   authority  of  a  bank   president 
comes  from  the  directors,  he  may  indorse  bills 
or  notes  payable  to  it. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  §  259.] 

3.  Banks  and  Bankino  $=>138— Deposits— 
Payment  on  Check— Liability  to  Deposi- 
tor. 

Where  a  depositor  drew  his  check  upon  de- 
fendant bank  to  the  order  of  a  loan  society, 
whose  president  and  chief  executive  officer  in- 
dorsed it  and  misappropriated  the  proceeds,  the 
bank  was  not  liable,  as  the  proceeds  were  paid 
to  the  society  in  accordance  with  the  terms  of 
the  check. 

[Ed.  Note. — ^For  other  cases,  see  Banks  and 
Banking,  Cent.  DIj.  U  39S-405.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  a  bank  deposit  by  Harry 
J.  Schwehm  against  the  Chelten  Trust  Com- 
pany. Verdict  for  plaintiff  for  $5,294.60, 
and  Judgment  thereon,  and  defendant  ap- 
peals. Reversed,  and  judgment  entered  for 
defendant. 

Argued  before  MBSTREZAT,  POTTER, 
STEWART,  MOSCHZISKER,  and  FRAZ- 
ER,  JJ, 

Chas.  C.  Norris,  Jr.,  of  Philadelphia,  for 
appellant.  Julius  C.  Levi  and  David  Mandel, 
Jr.,  both  of  Philadelphia,  for  appellee. 

POTTER,  J.  Tbe  plaintiff  In  this  case, 
who  was  a  depositor  with  the  Chelten  Trust 
Company,  drew  his  check  upon  that  insti- 
tution for  the  sum  of  $5,002,  payable  to  the 
order  of  Federal  Loan  Society.  The  dieck 
was  indorsed,  "Federal  Loan  Society,  H.  W. 
Stoll,  President,  Jos.  R.  Friedman"  and 
was  cashed  by  the  Franklin  Trust  Company, 
and  collected  by  the  latter  from  defmdan^ 
through  the  Com  Exchange  National  Bank, 
and  charged  by  defendant  against  plaintiff's 
deposit  account. 

[1]  Plaintiff  claimed  that  Stoll,  who  was 
president  of  the  Federal  Loan  Society,  had  no 
authority  to  Indorse  the  check  in  the  name  of 
the  society,  that  his  indorsement  did  not 
transfer  title  to  it,  and  that  defendant's  ac- 
tion In  paying  It,  and  charging  it  against  his 
account,  was  not  binding  upon  him.  He 
therefore  brought  this  suit  to  recover  the 
amount  so  charged.  At  the  trial,  a  request 
for  binding  instructions  in  favor  of  defendant 
was  refused,  and  the  jury  were  instructed 
to  render  a  verdict  for  plaintiff  for  the  full 
amount  of  the  claim.  From  the  Judgment 
thereon  entered,  defendant  has  appealed.  Its 
counsel  contend  that  under  the  by-laws  of  the 
Federal  Loan  Society,  the  president  was  con- 
.stltuted  the  general  manager  of  the  business 


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of  the  corporation,  and  tbis  aecessarily  gave 
him  the  power  to  Indorse  its  commercial 
paper.  It  appears  from  the  record  that  the 
by-laws  were  not  silent  as  to  the  president's 
authority,  but  they  provided  that  he  should 
be  the  chief  executive  officer  of  the  company 
and  should  "have  general  and  active  manage- 
ment of  the  business  of  the  company,"  should 
"have  general  supervision  and  direction  of 
all  the  other  offlcers  of  the  company,"  and  see 
that  their  duties  were  properly  performed, 
should  make  annually  to  the  board  of  direc- 
tors a  report  of  the  operations  of  the  com- 
pany for  the  fiscal  year,  and  from  time  to 
time  report  to  them  such  matters  as  the  in- 
terests of  the  company  might  require  to  be 
brought  to  their  notice,  and  should  "have 
the  general  powers  and  supervision  and  man- 
agement usually  vested  in  the  office  of  the 
president  of  a  corporation."  Broader  powers 
!n '  the  management  of  the  business  could 
hardly  have  been  bestowed.  The  president 
was  not  only  authorised  to  act  for  the  com- 
pany, but  was  to  see  that  all  other  offlcers 
discharged  their  duties.  Counsel  for  plain- 
tiff, however,  contend  that  the  power  of  the 
president  was  limited  by  two  provisions 
of  the  by-laws.  The  first  directs  the  treas- 
urer to  "deposit  all  money  and  other  valu- 
able effects  in  the  name  and  to  the  credit  of 
the  company  in  such  depositories  as  may  be 
designated  by  the  board  of  directors."  This 
provision,  however,  only  relates  to  thei 
duties  of  the  treasurer,  who  is  expressly 
placed  under  the  "general  supervision  and 
direction"  of  the  president.  It  puts  no  limi- 
tation on  the  powers  conferred  on  the  presi- 
dent himself.  The  other  provision  is  that 
"all  checks,  drafts  or  orders  for  the  payment 
shall  be  signed  by  the  treasurer  and  counter- 
signed by  the  president."  This  refers  only 
to  instruments  for  the  payment  of  mon&y 
by  the  corporation,  not  to  the  Indorsement 
or  transfer  of  instruments  of  which  the 
corporation  Is  not  the  maker,  but  the  payee. 
It  does  not  limit  the  power  of  the  president 
as  to  the  latter. 

[2,3]  Under  the  by-laws»  as  noted  above, 
the  president  was  made  the  "chief  execu- 
tive officer"  and  the  general  and  active  man- 
ager of  the  business  of  the  company.  He 
had  control  over  every  other  officer  of  the 
company,  and  power  to  direct  the  disburse- 
ment of  its  funds.  This  authority  was  ample 
to  authorize  him  to  accept  money  paid  to 
the  company,  whether  in  cash  or  in  the  form 
of  a  check  payable  to  the  order  of  the  com- 
pany. If  be  misappropriated  funds  paid  in 
good  faith  to  him  as  the  representative  of 
the  company,  the  loss  must  be  that  of  the 
•.■orporation  that  authorized  him  to  act,  and 
held  him  out  to  the  public  as  its  chief  of- 
ficer and  general  agent  As  the  power  was 
delegated  to  the  president  in  the  by-laws, 
*here  is  no  question  here,  as  to  acquiescence, 
hy  the  board  of  directors.  No  action  upon 
the  part  of  the  directors  was  noccssnry.    But 


even  where  his  authority  comes  from  the 
directors,  the  president  of  a  bank  may  in- 
dorse bUls  or  notes  payable  to  it  And  It 
would  seem  that  he  has  an  Implied  power  to 
indorse  and  transfer  its  negotiable  paper. 
1  Daniels,  Neg.  Inst  i  304. 

It  should  be  remembered  that  in  the  pres- 
ent case,  in  so  far  as  the  record  shows,  the 
validity  of  the  Indorsement  was  not  ques- 
tioned by  the  Federal  Loan  Society,  the 
payee  of  the  check.  It  is  the  drawer  of  the 
check  who  complains.  It  does  not  appear 
that  the  corporation  has  denied  that  it  was 
bound  by  the  indorsement  of  its  president, 
or  that  it  has  refused  to  carry  out  the  con- 
tract for  which  the  check  constituted  the 
consideration.  What  the  transaction  was, 
is  not  very  clear,  but  apparently  it  was  a 
purchase  of  stock.  Plaintiff  testified  that  he 
had  not  received  the  stock,  but  did  not  say 
that  the  corporation  had  refused  to  issue  it 
to  him,  nor  did  he  say  that  he  had  made  de- 
mand for  it.  Under  the  facts  shown,  we  are 
clearly  of  opinion  that  payment  of  the  check 
to  the  president  of  the  company  was  payment 
to  the  corporation. 

The  fifth  and  sixth  assignments  of  error 
are  sustained.  The  Judgment  is  reversed, 
and  is  here  entered  for  defendant. 

^^'"^  (2B7  Pa.  17) 

O'MAIiLEY  et  aL  V.  PUBIiIC  LEDGER  CO. 

(Supreme   Court  of  Pennsylvania.     March   5, 
1917.) 

1.  MuNiciPAi  CoBPORATiows  «=»70e(4)— EJvi- 

DENCB  OF  OWNEBSHIP— InJITBIKS  ON  STBBET. 

In  an  action  for  personal  injuries  wbeu 
struck  by  a  motor  truck  alleged  to  be  the  prop- 
erty of  defendant  company,  where  it  appeared 
that  defendant's  name  was  painted  npon  the 
car  containing  bundles  of  newspapers,  testimony 
of  a  policeman  that  shortly  before  the  accident 
he  saw  a  car  of  such  description  delivering  bun- 
dles of  newspapers,  and  knew  it  because  he  bad 
often  seen  it  in  the  neiKhborhood  delivering 
newspapers,  and  that  in  the  particular  case  his 
attention  had  been  attracted  to  the  driver's  hur- 
ry in  tossing  papers  from  the  car,  was  admissi- 
ble. 

[Ed.  Note.— For  other  cases,  see  Uonicipal 
Corporations,  Cent  Dig.  |  1618.] 

2.  Appeal  ano  Ekbob  «5a089— Jubt  «=>149 
— QuBSTioN  fob  Juby— Withdrawai,  of  Ju- 

BOB. 

In  such  action,  where  plaintiff  husband  tes- 
tified as  to  conversation  on  day  "when  we 
were  awarded  the  verdict"  in  former  trial,  where 
there  was  no  effort  to  lead  him  to  the  objection- 
able remark,  and  where  the  jury  were  instructed 
to  disregard  it,  the  refusal  of  a  continuance  was 
within  trial  court's  discretion. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  Jg  3845^848;  Jury,  Cent 
Dig.  iS  635-637.] 

3.  municrpal,  corpobations  «=»706<o— use 
op  Stbket — Pebsonal  Ivjubt — Qdestion 
FOB  Jury. 

In  action  for  personal  injury  when  struck  by 
a  motor  truck,  alleged  to  belong  to  defendant 
newspaper  rompnny.  held,  on  the  evidenoe,  that 
the  ownership  of  the  car  and  its  operation  in 
the  company's  service  was  tor  the  jury. 

[Ed.  fs^otc.— For  other  cnsoa,  see  Municipal 
Corporations,  Cent  Dig.  §  151S.] 


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O'MALLET  V.  PUBLIC  LEDGER  CO. 


95 


Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  damages  for  personal  Injury 
by  Catharine  O'Malley  and  John  O'Malley 
against  the  Public  Ledger  Company.  Ver- 
dict for  plaintiff  John  O'Malley  for  $750,  and 
for  Catharine  O'Malley  for  $i3,000,  reduced 
by  the  court  to  $500  and  $2,000,  respective- 
ly, with  judgment  thereon,  and  defendant 
appeals.    Affirmed. 

Argued  before  MESTREZAT,  POTTER, 
5?rEWART,  MOSCHZISKER,  and  FRA.- 
ZBB,  JJ. 

Robert  P.  Shlck  and  Wlnfleld  W.  Craw- 
ford, both  of  Philadelphia,  for  appellant 
Bertram  D.  Rearlck,  of  Philadelphia,  for  ap- 
pellees. 

MOSCHZISKER,  J.  John  O'Malley  and 
Catharine,  hte  wife,  sued  to  recover  for  per- 
sonal injuries  to  the  latter;  verdicts  were 
rendered  In  their  favor,  upon  which  judg- 
ments were  ent««d ;  the  defendant  has  ap- 
pealed. 

On  January  8,  1915,  between  6  and  6:30  a. 
in.,  Mrs.  O'Malley  was  struck  by  a  south- 
ward-bound automobile  while  crossing  Twen- 
tieth street.  In  the  city  of  Philadelphia,  at 
the  south  side  of  McClellan  street,  or  about 
150  feet  from  Moore  street,  the  next  thor- 
oughfare to  the  north.  The  testimony  relied 
upon  by  the  plaintiffs,  when  viewed  in  the 
light  most  favorable  to  them,  is  sufficient  to 
snstaln  the  following  material  findings: 
Just  before  leaving  the  sidewalk,  Mrs.  O'Mal- 
ley lotted  up  and  down  Twentieth  street 
and,  seeing  no  vehicles  approaching  from  ei- 
ther direction,  she  started  slowly  to  cross 
eastward ;  in  the  center  of  that  thoroughfare 
there  is  a  single  car  track,  and.  Just  before 
she  reached  the  first  rail  of  this  track,  she 
was  struck  by  the  automobile,  which  had 
turned  southward  into  Twentieth  street  from 
Moore  street;  the  machine  was  being  driv- 
en at  from  40  to  50  miles  an  hour,  and  came 
suddenly  upon  Mrs.  O'Malley,  without  warn- 
ing of  any  kind ;  she  was  knocked  down,  and 
subsequently,  as  a  result  of  the  accident, 
suffered  a  miscarriage  and  other  Injurious 
results;  finally,  the  motor  in  question  was 
owned  by  the  Public  Ledger  Company  and, 
at  the  time  of  the  injury  to  Mrs.  O'Malley, 
it  was  being  oi>erated  in  the  defendant's 
service. 

There  are  numerous  assignments  of  er- 
ror ;  but  only  a  few  of  them  require  serious 
consideration.  To  begin  with,  we  have  look- 
ed at  the  medical  testimony  with  care,  and 
feel  that  It  is  sufficient  to  connect  Mrs. 
CMalley's  impaired  physical  condition  with 
the  acddent,  and  to  justify  the  conclusion 
that  ber  injuries  followed  as  a  result  thereof. 

[1]  We  see  no  error  In  the  admission  of 
the  testimony  of  the  policeman,  Jordan.  He 
recalled  the  date  of  the  oocurrence  under 
Investigation ;  and  the  fact  that  his  memory 
In  this  respect  was  aided  by  ttw  drcumstanca 


that  he  had  held  a  conversation  with  anoth- 
er officer  concerning  the  accident,  right  aft- 
er It  happened,  would  not  militate  against 
the  admission  of  his  testimony.  It  may  be 
well  to  note,  however,  that  the  details  of 
this  conversation  were  not  allowed  in  evi- 
dence. Other  witnesses  who  saw  the  acci- 
dent had  already  testified  that  the  car  which 
injured  Mrs.  O'Malley  was  a  small  machine 
with  the  name  of  the  Public  Ledger  painted 
thereon,  containing  bundles  of  newspapers. 
The  policeman  was  permitted  to  state  that. 
very  shortly  after  the  time  fixed  by  the  for- 
mer witnesses,  he  saw  an  automobile  of  like 
description  delivering  bundles  of  newspapers 
about  4%  squares  from  the  place  of  the  ac- 
cident; that  he  knew  the  car,  having  seen 
it  in  the  neighborhood  morning  after  morn- 
ing, on  a  like  errand ;  and  that,  on  this  par- 
ticular occasion,  the  driver  attracted  atten- 
tion by  his  seeming  hurry,  when  he  tossed 
out  papers  upon  the  comer  where  the  wit- 
ness was  standing,  without  stopping  his  ma- 
chine. Although  this  testimony,  by  It.self, 
would  have  but  little  weight,  yet,  in  connec- 
tion with  other  evidence  in  the  case,  it  was 
circumstantially  relevant  to  Identify  the  au- 
tomobile which  caused  the  damage  as  a  ve- 
hicle belonging  to  and,  at  the  time,  in  the 
service  of  the  defendant  Bowling  v.  Rob- 
erts, 235  Pa.  89,  83  Atl.  600;  Hershlnger  v. 
Penna.  R.  R.  Co.,  25  Pa.  Super.  Ct  147. 

[2]  WhUe  the  trial  judge  might  have  with- 
drawn a  Juror  because  of  the  unfortunate 
remark  made  by  Mr.  O'Malley  when  upon 
the  stand,  to  the  effect  that  he  had  a  con- 
versation with  another  man  oa  the  day 
"when  we  w«e  awarded  the  verdict"  (evi- 
dently referring  to  the  verdict  in  a  former 
trial  of  the  same  cause),  yet  we  cannot  say 
the  refusal  so  to  do  constitutes  reversible 
error.  The  trial  had  been  on  for  three  days ; 
there  was  no  attempt  on  the  part  of  coun- 
sel for  the  plaintiff  to  obtain  an  unfair  ad- 
vantage by  leading  o»  the  witness  to  the  ob- 
jectionable remark.  On  the  contrary,  it 
seems  to  have  slipped  out  without  any  pre- 
meditated purpose,  and,  when  this  occurred, 
the  judge  at  once  warned  the  jurors  entirely 
to  disregard  the  Incident;  moreover,  at  the 
end  of  his  charge,  he  repeated  these  Instruc- 
tions. In  conclusion,  we  do  not  conceive  it 
at  all  probable  the  remark  In  question  had 
any  effect  prejudicial  to  the  defendant;  for 
if  the  jurors  understood  from  it  that  there 
had  been  a  former  finding  in  favor  of  the 
plaintiffs,  it  must  be  assumed  they  likewise 
realized  that  this  verdict  had  been  set  aside 
by  the  court 

[3]  No  part  of  the  charge  is  assigned  for 
error,  and  a  careful  reading  thereof  shows 
that  all  the  testimony  was  properly  and  cor- 
rectly submitted  to  the  Jurors,  not  only  to 
find  the  relevant  facts,  but  to  draw  their 
own  Inferences  therefrom  in  determining  the 
issues  involved.  Of  course,  there  was  testi- 
mony produced  by  the  defendant  militating 
against  the  evidence  depended  upon  by  the 


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plaintiffs  to  show  the  former's  ownership  of 
the  car  and  that  the  machine  was  being  oi>- 
erated  in  Us  serrloe  at  the  time  of  the  ac- 
cident ;  but  this  testimony  was  mostly  oral, 
and  hence  it  was  for  the  jnry  to  pass  upon. 
The  assignments  of  error  are  all  overruled, 
and  the  judgments  affirmed. 


(257  Pa.  25) 

SCOTT  T.  AMERICAN  EXPRESS  CO. 

(Supreme   Court   of   Pennsylvania.     March    5, 
1917.) 

1.  WrTNEssEs  iS=»379(7)— Impeachment— CoN- 

TBADICTOBY   STATEMENTS. 

The  credibility  of  a  witness  may  be  im- 
peached by  his  previous  statements  inconsistent 
witli  or  contradictory  to  his  testimony,  including 
statements  made  in  plendinKS.  where  the  omis- 
aion  in  tlie  inconsistent  statement  occurred  when 
the  occasion  called  upon  him  for  disclosure. 

[Ed.   Kote. — For  other  cases,   see   Witnesses, 
Cent.  Dig.  J  1251.] 

2.  Wn-NESSES  €=>387— Impeachment— I Ncoif- 
siSTENT  Statements — Swobn  Pleadinqs. 

In  an  action  apaiust  an  express  company  for 
injury  to  an  employ^  from  the  defective  condi- 
tion of  the  brakes  and  steering  apparntjis  of  its 
motor  truck,  defended  on  ground  that  the  acci- 
dent was  caiiscil  by  the  intoxication  of  the  driv- 
er, a  fellow  servant,  where  defendant's  super- 
intendent testified  that  he  visited  the  driver  aft- 
er the  accident,  and  he  then  showed  signs  of 
liaving  been  drinking,  his  cross-examination  as 
to  whether  he  had  not  sworn  to  answers  in  the 
driver's  action  in  another  court  arising  out  of 
name  accident  which  said  nothing  about  the 
driver's  intoxication,  was  erroneous,  where  un- 
der the  rules  of  that  court  the  facts  constituting 
the  defense  were  not  required  to  be  stated  in  the 
answer. 

[Ed.   Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  »  1228-12;?2.] 

3.  Appeal  and  Erbor  ^=>232(2)— AdmissibiI/- 
ITY  or  Evidence— Objection. 

Where  the  record  was  not  clear  as  to  the 
ground  upon  which  objection  to  the  cross-exami- 
nation of  a  witness  was  based,  the  rule  that  on 
appeal  a  party  complaining  of  the  admission  of 
evidence  in  the  court  below  will  be  confined  to 
the  specific  objection  there  made,  was  not  appli- 
cable. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
ElTor,  Cent.  Dig.  {{  1430,  1431.] 

4.  Appeal  and  Error  <S=»1004{1)— Amount  oif 
Verdict— Review. 

The  amount  of  a  verdict  will  be  reviewed  by 
the  Supreme  Court  under  authority  of  Act  May 
20,  1S91  (P.  L.  101),  only  when  so  grossly  ex- 
cessive as  to  shock  the  sense  of  justice,  and  to 
show  a  clear  abuse  of  the  lower  court's  discre- 
tion in  refusing  to  set  it  aside. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  3860-3876,  3948.] 

6.  Death  «=s>09(3)— Excessive  Damages. 

Verdicts  of  $1,717  awarded  the  father  of  in- 
jured minor  employ^,  and  $12,540  awarded  the 
estate  of  the  minor,  were  not  excessive,  where 
he  suffered  a  compound  fracture  of  both  legs 
above  the  knees,  lacerations  end  bruises  of  the 
scalp,  arms  and  back,  underwent  two  operations, 
and  lived  four  months  after  the  accident 

[Ed.  Note.— For  other  cases,  see  Death,  Cent 
Dig.  §§  125,  126,  128.J 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia Connty. 
Trespass   for   damages   for   personal   In- 


juries by  Elizabeth  Soott,  administratrix  of 
the  estate  of  Joseph  P.  Scott,  deceased,  and 
Elizabeth  Scott,  administratrix  of  the  estate 
of  Edward  A.  Scott,  deceased,  against  the 
American  Express  Company.  Verdict  for 
plaintiff  as  administratrix  of  the  estate  of 
Edward  A.  Scott  for  $1,717,  and  as  adminis- 
tratrix of  her  deceased  son,  Joseph  P.  Scott, 
for  $12,540,  and  judgment  thereon,  motion 
for  new  trial  denied,  and  defendant  appeals. 
Reversed  with  a  new  venire. 

PlaintifTs  injuries  consisted  of  oompoond 
fractures  of  both  legs  above  the  knees,  lacera- 
tions and  bruises  of  the  scalp,  arms  and  back. 
Two  unsuccessful  operations  were  performed 
to  secure  unions  of  the  fractures  of  the  legs. 
Plaintiff  suffered  extr^ne  pain  except  when 
under  the  influence  of  opiates,  and  died  as 
a  result  of  such  injuries  over  four  months 
after  the  accident. 

Argued  before  ilESTREZAT,  POTTER, 
STEWART,  MOSOHZISKBR,  and  FRAZER, 
JJ. 

John  Lewis  Evans,  John  O.  Johnsmt,  and 
Thomas  De  Witt  Cuyler,  all  of  Philadelphia, 
for  appellant.  Frauds  M.  McAdams  and 
William  H.  Wilson,  both  of  Philadelphia,  for 
appellee. 

FUAZER,  J.  This  action  was  brought  by 
Joseph  P.  Scott,  a  minor,  and  Edward  A. 
Scott,  liis  father,  to  recover  damages  for 
Injuries  sustained  by  the  former,  as  a  result 
of  alleged  negligence  of  defendant  in  per- 
mitting the  brakes  and  steering  apparatus  on 
a  motor  truck,  on  which  the  minor  was  riding 
in  the  discharge  of  his  duties,  to  become  out 
of  order  and  remain  in  a  state  of  disrepair, 
which  resulted  in  the  machine  becoming  un- 
manageable in  descending  a  street  with  some 
grade,  and  striking  a  telephone  pole  located 
along  the  highway.  Joseph  P.  Scott  died  as 
a  result  of  his  injuries,  and,  upon  the  subse- 
quent death  of  his  father,  Elizabeth  Scott 
prosecuted  the  action  to  Judgment  as  admin- 
Istratrix  of  their  estates. 

The  deceased  minor  was  employed  by  de- 
fendant to  ride  on  its  trucks  and  assist 
drivers  in  handling  aod  guarding  express 
packages.  The  defense  was  that  the  accident 
was  caused  by  the  negligence  of  the  driver, 
who,  according  to  the  evidence,  had  been 
drinking  and  was  in  an  intoxicated  condi- 
tion at  the  time;  which  fact  was  known  to 
Young  Scott.  The  trial  judge  submitted  the 
case  to  the  jury,  in  a  charge  to  which  no  com- 
plaint is  made,  and  there  was  a  verdict  on 
behalf  of  the  father's  estate  for  $1,717,  and 
on  behalf  of  the  estate  of  the  minor  for  $12,- 
540.  A  motion  for  a  new  trial  was  dismissed 
by  the  court  below,  and  defendant  appealed. 

We  deem  It  unnecessary  to  refer  In  detail 
to  the  circumstances  of  the  accident,  since 
the  only  questions  argued  before  this  court 
were  as  to  the  correctness  of  the  action  ot 
the  court  in  admitting  certain   evidence  to 


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ST 


Impeach  the  credibility  of  one  of  defendant's 
witnesses,  and  whettier  or  not  the  verdict  on 
behalf  of  the  minor's  estate  was  excessive. 

[1,2]  Superintendent  Jailer,  of  defendant 
company,  testified  to  visittog  the  hospital 
within  two  hours  after  the  accident,  and,  In 
reply  to  a  question  by  his  own  attorney, 
stated  he  saw  Carey,  the  driver,  at  that  time 
and  his  breath  smelled  as  If  he  had  been 
drinking.  On  cross-examination  by  plaintiff's 
counsel  he  was  asked  whether  he  had  not 
sworn  to  and  signed  answers  in  actions  by 
tlie  driver  and  another  person  against  de- 
fendant in  the  municipal  court  involving  the 
same  accident.  Upon  objection  being  made, 
coonsel  for  plalntlfiF  stated  he  wished  to  test 
the  credibility  of  the  witness,  whereupon  the 
objection  was  overruled.  The  witness  then 
admitted  he  had  signed  and  sworn  to  the 
papers,  and  that  they  contained  no  statement 
to  the  effect  that  the  driver  had  been  drink- 
ing, or  was  intoxicated.  Defendant  contends 
this  testimony  was  improperly  admitted  and 
was  extremely  prejudicial  to  it,  owing  to  the 
fact  that  the  Jury  as  laymen  were  likely  to 
place  undue  weight  on  the  omission,  whereas, 
in  fact,  such  omission  was  unimportant,  and 
tbe  statement  unnecessary  as  a  part  of  the 
pleadings  in  the  case. 

Hie  rule  is  well  settled  that  the  credibility 
of  a  witness  may  be  impeached  by  showing 
previously  made  statements  inconsistent  with, 
or  contradictory  to,  his  present  testimony, 
and  this  includes  inconsistent  statements 
made  in  pleadings  in  the  causes.  Henry's 
Penna.  Trial  Evidence,  {  65,  and  cases  cited ; 
Floyd  V.  Kulp  Lumber  Co.,  222  Pa.  257,  71 
AtL  13;  2  Wlgmore  on  Evidence,  §  1066.  To 
constitute  grounds  for  discrediting  a  witness, 
however,  the  omission  must  be  made  at  a 
time  when  the  occasion  was  sudi  that  he  was 
called  upon  to  make  the  disclosure.  It  Is 
only  where  the  witness  on  a  previous  occa- 
sion was  under  some  duty  to  speak  the  whole 
truth  concerning  the  matter  about  which  he 
now  testifies  that  impeachment  becomes  per- 
missible by  showing  an  omission  to  state  cer- 
tain material  facts  Included  in  his  testimony. 
Royal  Insurance  Ck>.  v.  Beatty,  119  Pa.  6,  12 
AtL  607,  4  Am.  St  R^.  622;  Huston's  Es- 
tate, 167  Pa.  217,  31  Atl.  553.  ConsequenUy, 
in  CMisidering  the  competency  of  the  evldeace 
offered  for  the  purpose  of  impeaching  the 
witness,  the  scope  of  the  answers  filed  In  the 
municipal  court  of  Philadelphia  should  be 
considered.  Rule  7  of  that  court  provides 
that  an  answer  shall  contain  an  admission  or 
denial  of  each  fact  averred  in  the  statement 
of  claim,  and  that  all  facts  not  denied  by  de- 
fendant, or  of  which  he  does  not  aver  him- 
self to  be  ignorant,  shall  be  deemed  to  be 
admitted.  This  rule  does  not  require  defend- 
ant to  state  tbe  facts  constituting  his  defense, 
but  merely  to  either  admit  or  deny  those 
averred  In  the  statement  of  claim.  We  have 
no  knowledge  of  the  contents  of  the  state- 
ments of  claim  referred  to,  as  they  are  not 
printed  In  either  paper  book,  and  nowhere  la 
101  A^7 


the  record  does  it  appear  that  tbe  question 
of  intoxication  was  raised  in  the  declaration 
In  either  case.  The  answers  in  questions 
admit  tbe  happening  of  the  accident,  but 
deny  that  either  the  brakes  or  steering  ap- 
paratus were  defective  or  out  or  order,  or 
that  the  accident  was  the  consequence  of  the 
failure  of  these  parts  of  the  truck  to  properly 
work,  or  of  anything  else  for  which  defendant 
was  responsible.  No  necessity  appears  for 
the  assertion  or  denial  of  the  charge  that  the 
driver  had  been  drinking  previous  to  the  hap- 
pening of  the  accident 

The  formal  pleadings  in  a  case  are  drawn 
by  attorneys  in  technical  language,  and  con- 
tain only  such  averments  of  facts  as  in  the 
opinion  of  the  attorneys  are  material  to  make 
out  a  prima  fade  case.  They,  therefore,  do 
not  purport  to  be  a  complete  history  or  re- 
dtal  of  all  the  facts  of  the  transaction,  and 
no  unfavorable  inference  should  be  drawn 
from  the  failure  to  Include  details  which  are 
the  natural  and  usual  parts  of  the  proof, 
rather  than  of  the  pleadings  in  the  case.  For 
these  reasons  it  was  error  to  permit  the  use 
of  the  answers,  filed  in  the  municipal  court 
cases,  in  attacking  the  credibility  of  the  wit- 
ness. 

13]  Plaintiff  claims  the  evidence  was  ob- 
jected to  solely  on  the  ground  that  it  should 
have  been  Introduced  as  a  part  of  plaintiff's 
case;  that  this  objection  conceded  its  rel- 
evancy, and,  under  the  familiar  rule  that  a 
party  complaining  on  appeal  of  the  admission 
of  evidence,  in  the  court  below,  will  be  con- 
fined to  the  spedfic  objection  there  made. 
Morgan  v.  Gamble,  230  Pa.  165,  79  Atl.  410; 
Roebllng's  Sons  Co.  v.  American  Amusement 
&  Construction  Co.,  231  Pa.  261,  80  Atl.  647. 
An  examination  of  the  record  falls  to  con- 
vince us  that  this  rule  should  be  applied  in 
the  present  case.  When  the  papers  were 
handed  to  the  witness  Juller,  defendant's 
counsel  made  the  following  objection:  "I 
object  to  any  evidence  in  regard  to  these 
papers,  unless  it  is  Introduced  as  part  of 
plaintiff's  case."  The  trial  judge  then  said: 
"It  goes  to  the  credibility  of  the  witness,  I 
understand.  Is  that  the  purpose?"  Plain- 
tiff's counsel  replied:  "That  is  the  purpose 
entirely."  The  court  thereupon  overruled 
the  objection,  but  no  exception  was  taken  to 
the  ruling  at  this  point  After  a  preliminary 
examination  of  the  witness  the  record  shows 
the  following: 

"Q.  In  those  affidavits  yon  didn't  say  a  word, 
did  you,  as  to  Carey  [tbe  driver]  being  drunk  or 
as  to  having  a  smell  of  intoxicatinK  liquor  on 
him?  (Objected  to  by  counsel  for  defendant. 
Objection  overruled;  exception  to  defendant.) 
A.  No." 

While  the  objection  first  made  relates  to  the 
order  of  the  admission  of  the  evidence,  tbe 
comment  of  the  court  and  counsel  for  plain- 
tiff clearly  indicate  the  evidence  was  offered 
for  the  sole  purpose  of  testing  the  credibility 
oi  the  witness,  and  the  general  objection  fol- 
lowing that,  upon  which  the  exception  was 


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(Pa. 


founded,  may  well  have  been  based  upon  tbat 
ground.  It  is  sufficient  to  say  that  the  record 
is  not  clear  or  spedflc  on  tills  point,  and  in 
that  case  the  rule  invoked  by  appellee  will 
not  be  applied.  Kuhn  v.  ligonler  Valley  R. 
R.  Co.,  255  Pa.  445,  100  Atl.  142.  It  follows 
that  the  first  assignment  of  error  must  be 
sustained. 

[4, 5]  The  other  question  Involved  is 
whether  or  not  the  damages  awarded  are 
excessive,  or  whether  the  court  below  abused 
its  discretion  in  refusing  to  cut  down  the 
verdict,  or  allow  a  new  triaL  Since  the  pas- 
sage of  Act  May  20,  1891  (P.  L.  101),  giving 
this  court  povfer  to  set  aside  verdicts  deemed 
to  be  excessive,  we  have  repeatedly  said  that 
the  question  of  the  amount  of  the  verdict 
would  be  reviewed  only  in  cases  where  so 
grossly  excessive  as  to  shock  our  sense  of 
justice,  and  where  the  impropriety  of  allow- 
iug  a  verdict  to  stand  is  so  manifest  as  to 
show  a  clear  abuse  of  discretion  on  the  part 
of  the  court  below  in  refusing  to  set  it  aside. 
Qulgley  V.  Penna.  R.  R.  Co.,  210  Pa.  162,  59 
AtL  958;  Reed  v.  Pittsburg,  Carnegie  & 
Western  R.  R.,  210  Pa.  211, 59  Atl.  1067 ;  Dun- 
lap  V.  Pittsburgh,  Harmony,  Butler  &  New 
Castle  Ry.  Co.,  247  Pa.  230,  93  AtL  276.  In 
view  of  the  nature  of  the  injury,  the  pain 
and  suffering  endured,  and  all  the  circum- 
stances of  the  case,  it  cannot  be  said  the  ver- 
dict in  this  case  Is  so  excessive  as  to  warrant 
our  Interference  upon  that  ground. 

The  Judgment  is  reversed  with  a  new  ve- 
nire. 

.CS7  Pa.  1) 

THOENEBB  et  al.  v.  MOSBY  et  al. 

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

Nuisance  <S=>3(9)— Dance  Haix— Chabactxb 

OF  NElaUBOBIIOOD. 

A  bill  in  equity  to  enjoin  dancing  in  a  hall 
in  a  neigliborbood  not  strictly  residential  was 
properly  dismissed,  where  it  appeared  that  the 
colored  persons  attending  the  dances  conducted 
themselves  in  an  orderly  manner,  and  made  no 
more  noise  than  was  usual  on  sucU  occasions, 
though  after  the  dancing,  which  usually  closed 
at  12  o'clock,  Uiere  was  considerable  noise  in 
the  street  on  departing,  as  that  could  be  satis- 
factorily controlled  by  the  police. 

[Ed.  Note.— For  other  cases,  see  Nuisance, 
Cent  Dig.  |§  20-22.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Bill  in  equity  for  an  injunction  by  W.  Her- 
man Thoenebe  and  others  against  Jerome 
Mosby  and  John  Foreman,  trading  as  Mosby 
&  Foreman,  and  Joseph  M.  Thomas,  trading 
as  Charles  J.  Thomas  Sons.  From  a  decree 
dismissing  the  bill,  plain  lifts  appeal.  Af- 
firmed. 

BUI  in  equity  for  an  injunction.  The  facts 
appear  in  the  following  opinion  by  Breg}', 
P.  J.,  in  the  court  of  common  pleas: 

This  is  a  bill  alleging  that  the  defendants 
are  maintaining  a  nuisance  at  the  hnll,  1512  to 
1520  North  Thirteenth   street. 


(1)  The  plaintiffs  reside  on  Thirteenth  street 
between  Jeiferson  and  Oxford  streets. 

(2)  The  defendants  Mosby  and  Foreman  are 
lessees  of  a  hall  on  Thirteenth  street  between 
Jefferson  and  Oxford  streets,  where  they  have  a 
dancing  school.  The  defendant  Thomas  is  the 
owner  of  the  building. 

(3)  On  Monday.  Thursday,  and  Saturday 
nights  Mosby  and  Foreman,  who  rent  the  hall 
on  the  third  floor  of  the  stable  building  kno\Vn 
as  Thomas'  stable,  have  dancing  parties  that 
begin  at  9  o'clock  and  continue  till  12  o'clock. 
On  Wednesday  night  they  teach  dancing  from 
8;30  o'clock  to  10:45  o'clock.  On  Tuesday  and 
Friday  nights  the  hall  is  not  occupied  by  the 
dancing  school  in  any  way,  but  the  leasees  sublet 
it  (with  the  consent  of  the  owner,  Mr.  Thomas) 
for  concerts,  balls,  and  so  on  as  they  can  ob- 
tain a  tenant  During  the  15  months  the  de- 
fendants have  occupied  the  hall  they  have  rent- 
ed it  for  the  above  purposes  14  times. 

(4)  On  Monday,  Thursday,  and  Saturday 
nights,  the  music  tor  the  dancing  parties  begins 
at  9  o'clock  and  continues  till  11 :50,  when  it 
stops  and  the  patrons  leave — the  hall  being  emp- 
tied by  12  o'clock.  On  Wednesday  night,  the 
teaching  night  the  school  begins  at  8:30  and 
closes  at  10 :45.  On  the  occasions  that  the  hall 
has  been  rented  out  for  different  entertainments, 
they  have  occupied  the  hall  till  2  o'clock  a.  m. 

(5)  The  music  at  the  dancing  parties  consists 
of  five  pieces,  viz. :  Piano^violin,  cornet,  trom- 
bone, and  trap  drum.  On  Wednesday  nights  the 
music  is  by  the  piano  only.  The  same  five  pieces 
play  at  the  balls  or  entertainments  when  the 
place  is  rented. 

(6)  When  the  music  continues  after  11  o'clock 
it  is  muffled  to  subdue  its  noise,  and  so  con- 
tinues till  the  audience  leaves. 

(7)  The  hall  here  alluded  to  is  on  the  third 
floor  of  a  large  public  stable  building  that  has 
been  so  occupied  for  over  40  years.  During 
the  many  years  of  the  existence  of  this  stable 
it  has  been  occupied  as  such,  both  for  the  sta- 
bling of  private  teams  and  the  hiring  of  horses 
and  carnages  to  the  public.  The  ball  on  the 
third  floor  has  for  over  30  years  been  rented  out 
as  a  dancing  school,  for  parties,  concerts,  and 
for  different  kinds  of  public  meetings,  political 
and  otherwise. 

(8)  The  neighborhood  is  no  longer  a  strictly 
residential  one.  This  one  square  on  Thirteenth 
street  between  Jefferson  and  Oxford  has  in  ad- 
dition to  the  large  stable  already  mentioned  quite 
a  number  of  business  places.  EVom  the  north 
side  of  Jefferson  street  to  the  south  side  of  Ox- 
ford street,  there  is  on  one  side  a  large  furni- 
ture manufactory,  a  barber  shop,  a  store,  a  tailor 
shop,  a  china  decorating  store,  and  an  empty 
store  at  the  comer ;  on  the  other  side  there  is 
a  saloon,  tailor  shop,  a  wall  paper  establishment, 
a  butcher  shop,  and  other  stores.  On  the  south 
side  of  Jefferson  street  at  Thirteenth  street 
there  is  a  grocery  store  at  one  comer  and  a 
drug  store  at  the  other ;  and  on  the  north  side 
of  Oxford,  a  grocery  store  at  one  corner  and  an 
insurance  office  at  the  other. 

(9)  The  persons  attending  the  dances  and  en- 
tertainments heretofore  spoken  of  have  behaved 
themselves  in  a  proper  way  in  the  hall,  and  no 
misbehavior  there  has  been  proved  or,  in  fact 
allepred  against  them. 

(10)  The  patrons  of  the  hall  are  colored  peo- 
ple. 

(11)  When  the  audience  disperses  there  is  on 
the  street  the  noises  of  these  persons  talking  to 
each  other,  saying  good-bye  and  the  calling  to 
ft  friend  to  wait,  etc. 

(12)  At  the  dancing  parties  the  attendance 
is  from  SO  to  100 ;  at  the  times  the  hall  is  rent- 
ed sometimes  there  are  as  many  as  400  there. 

(\")  The  occupants  of  four  hou.ses  on  Thir- 
teenth street  complain  that  they  are  annoyed 
by  the  mnsic  to  the  hall  and  by  the  noise  in 


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COMMONWEALTH  t.  SOHWABTZ 


99 


the  street  when  the  patrons  leave.  Very  many 
more  say  they  are  not  annoyed  and  have  no  com- 
plaint to  make. 

(14)  Within  the  last  few  years  the  immediate 
neighborhood,  but  not  this  street,  has  become 
tenanted  by  a  large  number  of  colored  people^ 

Conclusions  of  Law. 

The  plaintiffs  seek  to  have  the  defendants  close 
tbe  hall  at  about  10  o'clock,  complaining  that 
the  continuation  of  the  music  after  that  hour 
and  the  dispersal  of  the  audience  and  its  at- 
tendant noise  are  a  nuisance  that  annoys  them. 
The  compliiint  raises  the  question  as  to  what 
hour  a  dancing  school,  party,  concert,  or  ball 
should  close  its  doors.  The  answer  must  depend 
upon  the  neighborhood,  and  the  facts  of  each 
particular  case,  as  there  can  be  no  general  rule 
on  the  subject.  Considering  the  fact  that  I  have 
foond  this  not  to  be  a  strictly  residential  neigh- 
borhood, but  one  that  has  changed  into  a  partly 
business  one,  I  do  not  consider  it  uureasonaDle 
to  keep  open  the  dancing  school  till  12  o'clock. 
The  hours  of  entertainment  are  not  what  they 
used  to  be.  Everything  is  later,  and,  as  times 
change,  we  mast  change  our  habits  with  them. 
Everythins  has  been  done  by  the  proprietors  of 
the  school  to  lessen  the  sound  of  the  music 
after  11  o'clock,  and  I  see  no  reason  to  interfere 
with  the  dancing  school. 

At  to  the  parties  or  balls  that  are  held  on 
other  evenings,  while  not  very  many  in  number, 
another  question  presents  itself.  Considering 
tbe  neighborhood  and  tbe  admitted  fact  that  on 
an  average  of  once  a  month  an  entertainment  of 
eotnt  kind  is  given  which  continues  till  2  o'clock 
in  the  morning,  is  It  proper  to  issue  an  injunc- 
tion? This  question  is  not  without  difficulty. 
That  it  is  an  annoyance  to  the  plaintiffs  to  have 
their  sleep  broken  by  these  gatherings  is  un- 
doubtedly true.  Those  who  live  in  cities  must 
take  what  goes  with  it,  however.  Those  who 
live  in  business  neighborhoods  cannot  expect  or 
demand  the  quiet  of  the  suburbs. 

As  the  neighborhood  changes  they  must  take 
the  consequences.  If  it  changes  for  the  worse 
and  personal  discomfort  follows,  that  must  be 
submitted  to.  The  running  of  street  cars  and 
tbe  noise  of  the  automobiles  all  night  long  are 
among  the  few  annoyances  that  all  sections  of 
the  city  are  now  subjected  to,  but  would  some 
years  ago  have  been  considered  a  nuisance.  Ap- 
plying the  principle  that  an  injunction  should 
not  issue  in  doubtful  cases,  I  would  not  issue 
one  here. 

There  remains  only  the  other  question,  viz.: 
Can  tibe  bill  prevail  because  of  the  noise  in  the 
street  after  the  entertainments  are  dismissed? 
As  I  have  found  that  the  defendants'  entertain- 
ments bring  together  an  assemblage  of  respecta- 
ble, well-behaved  people,  and  that  the  noises  in 
the  street  are  not  of  a  kind  that  are  induced 
by  or  encouraged  by  the  defendants'  parties,  I 
see  no  reason  for  a  court  of  equity  to  act.  This 
is  a  matter  for  the  police  to  see  ta  We  would 
not  hesitate  to  enjoin  the  gathering  of  disorderly, 
dissolute,  drunken,  or  depraved  persons,  whose 
coming  t<Hfether  must  necessarily  annoy  the  resi- 
dents of  nearby  houses,  but  the  saying  of  part- 
ing words  by  respectable  people  and  the  calling 
to  friends  as  they  leave  the  hall  is  a  matter  for 
the  police  to  regrilnte,  rather  than  for  a  court 
to  dispose  of  by  injunction. 

Tbe  court  dismissed  the  bllL  Plaintiffs  ap- 
pealed. Error  assigned,  inter  alia,  was  the 
decree  of  the  court. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 


Ormond  Rambo  and  Frank  H.  Warner, 
both  of  Philadelphia,  for  appellants.  J.  H. 
Shoemaker,  of  Philadelphia,  for  appellees. 

PER  CnRIAlfL  This  bill  was  filed  to  en- 
Join  dancing  and  moslc  in  a  certain  hall  In 
the  city  of  Philadelphia.  That  it  was  prop- 
erly dismissed  appears  by  tbe  facts  found 
and  legal  conclusions  reached  by  the  learned 
president  Judge  of  the  court  below,  and,  on 
them,  the  decree  Is  afiSrmed  at  tbe  costs  of 
appellants. 

(267  Pa.  159) 
COMMONWHAlffH  ex   rd.    BROWN,   Atty. 
Gen.,  V.  SCHWARTZ. 

(Suprema  Oourt  of  Pennsylvania.     March  12, 
1917.) 

Quo  Wabbawto  «=»60— Judombht  o»  Oustkb 
—Justice  or  the  Pkacs. 
A  judgment  of  ouster  in  quo  warranto  pro- 
ceedings to  test  the  right  of  a  justice  of  the 
peace  to  hold  office  in  a  borough  was  properly 
entered,  where  it  appeared  that  respondent  hod 
been  defeated  at  an  election  under  wiiich  he 
claimed  his  right  to  the  office. 

[Ed.  Note.— For  other  cases,  see  Quo  War- 
ranto, Cent  Dig.  {  71.] 

Appeal  from  Court  of  Common  Pleas,  Lack- 
awanna Coanty. 

Qno  warranto  by  the  Commonwealth,  on 
ralatlon  of  Francis  Shunk  Brawn,  Attorney 
General,  against  Prank  Berger  and  Phillip 
Schwartz,  to  test  the  right  of  the  last  defend- 
ant to  act  as  Justice  of  the  peace  of  the 
borough  of  Old  Forge.  Judgment  for  defend- 
ant Berger,  and  writ  dismissed  as  to  him, 
and  Judgment  of  ouster  against  defendant 
Schwartz,  and  he  appeals.    Affirmed. 

It  appears  by  the  record  that  an  election  t» 
flu  vacancies  in  the  office  of  Justice  of  the 
peace  of  Old  Forge  borough  was  held  in 
November,  1915,  at  which  time  the  following 
candidates  received  the  number  of  votes  set 
out  after  their  names:  E.  J.  Garvin,  819 
votes ;  Frank  Berger,  808  votes ;  Fred  Roon- 
ey,  806  votes;  J.  J.  Chelland,  C91  votes; 
Phillip  Schwartz,  641  votes.  It  appeared  also 
that  commissions  were  thereafter  Issued  tn 
Frank  Berger  and  Phillip  Schwartz  as  Jus- 
tices of  the  peace.  When  the  case  came  to 
trial  It  was  agreed  that  It  should  be  heard  by 
the  court  without  a  Jury,  and  after  such  hear- 
ing the  court  found  the  following  facts  and 
conclusions  of  law : 

Facts. 

(1)  The  territory  constituting  the  borough 
of  Old  Forge,  before  the  incorporation  of  the 
t>orough,  had  two  justices  of  the  peace. 

(2)  The  borough  was  incorporated  on  May  2, 
1809. 

(3)  An  attempt  was  made  at  the  February 
election  of  1899  to  secure  a  vote  for  an  increase 
of  two  justices  in  the  township  of  Old  Forge. 
Notices  were  posted  as  required  by  the  act  of 
assembly,  and  there  was  a  vote  actually  taken 
on  the  question  of  increase.  There  was  no  re- 
turn of  the  vote  made  to  the  office  of  the  clerk 


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100 


101  ATIiANTIG  BKPORTBR 


(I*a. 


of  tbe  court,  nor  the  executive  department  of 
Harrisburg.  Nor  is  tbere  any  evidence  what- 
ever in  this  case  as  to  whether  the  vote  was  in 
favor  or  against  an  increase.  Tbe  election  of 
1899  has  no  place  in  the  consideration  of  the 
present  controversy. 

(4)  Another  election  was  held  In  the  borough 
of  Old  Forge  in  1905,  at  which  the  question  of 
increase  in  the  number  of  justices  was  voted 
upon.  The  public  notices  posted  before  the 
election  specified  an  increase  of  three  justices, 
but  the  return  of  the  vote  on  file  in  the  clerk's 
ofiice  shows  an  increase  of  one  only.  Counsel 
have  agreed  that  the  tabulation  prepared  by 
the  clerk  is  a  correct  copy  of  the  returns  in  his 
ofiice.    The  tabulation  is  as  follows: 

For  Increase.  Against  Increase. 
23       64 


Ist  Ward  . 
2d   Ward   , 
3d    Ward  . 
4th  Ward 
5th  Ward 
eth  Ward  . 


—        2 

....       75        6  For  one  Justice 
....         9        0  Increase  one 
0        0 

This  shows  that  the  total  vote  in  the  borough 
against  the  increase  was  71;  there  were  23  votes 
for  increase  without  designation  of  any  number, 
and  there  were  84  votes  in  favor  of  an  increase 
of  one. 

Conclusions  of  Law. 

1.  Old  Forge  township  previous  to  its  incor- 
poration was  entitled  to  two  justices  of  the 
peace. 

Counsel  for  all  parties  conceded  this  propo- 
sition. 

2.  There  was  not,  in  law,  an  increase  in  the 
number  of  justices  in  Old  Forge  township  by 
the  election  of  1899.  There  has  been  some  mis- 
apprehension as  to  the  election  of  1899.  Coun- 
sel have  tried  this  case  on  the  supposition  that 
the  election  was  a  borough  election,  although, 
as  already  stated,  there  was  no  borough  until 
the  May  following.  However,  this  is  of  no  mo- 
ment. The  election  was  undoubtedly  a  town- 
ship election,  and  a  township,  as  such,  had  the 
right  to  vote  an  increase  in  the  number  of  jus- 
tices. The  same  misapprehension  is  to  be  no- 
ticed in  the  opinion  of  the  deputy  attorney  gen- 
eral found  in  the  case  of  the  Old  Forge  Justices, 
30  Pa.  0.  C.  164,  who  supposed  the  election  of 
1899  was  a  borough  election,  and,  basing  his 
opinion  on  an  affidavit,  be  states  that  there  was 
an  increase  of  one  justice  at  that  election  in  Old 
Forge  in  1899.  We  have  no  doubt  that  if  the 
evidence  before  us  was  before  the  Deputy  Attor- 
ney General  he  would  not  have  advised  the  Grov- 
ernor  in  1904  to  make  an  appointment  of  one 
person  to  fill  the  vacancy  untU  May,  1906. 

3.  The  number  of  justices  of  the  peace  in  Old 
Forge  borough  was  lawfully  increased  by  one 
at  tjbe  election  in  1905.  This  proposition  is  so 
plain  that  it  needs  no  discussion. 

4.  Old  Forge  borough,  prior  to  the  dection  of 
1905,  was  entitled  to  two  justices  of  the  peace. 
After  said  election  it  is  entitled  to  tliree. 

5.  Two  vacancies  for  the  office  of  justice  of 
the  peace  were  to  be  filled  at  the  November  elec- 
tion, 1915.  E.  J.  Garvin  and  Frank  Berger 
having  received  the  majority  of  votes  in  the  bor- 
ough at  said  election  for  said  office,  are  enti- 
tled thereto,  having  been  lawfully  elected.  We 
note  in  this  connection,  that  the  right  of  B.  J. 
Garvin  to  office  is  not  in  question  in  this  case. 

6.  The  respondent,  Phillip  Schwartz,  failed 
of  election  in  1915,  and  is  therefore  not  entitled 
to  the  office  of  justice  of  the  peace  of  Old  Forge 
borough. 

Subsequently  exceptions  to  the  findings  of 
fact  and  conclusions  of  law  .were  dismissed, 
and  judgment  was  entered  in  favor  of  the  de- 
fendant Frank  Berger,  and  the  writ  dismissed 


as  to  him,  and  as  to  the  defendant  Phillip 
Schwartz  Judgment  was  entered  In  favor  of 
the  relator,  that  the  said  defendant  be  ousted 
and  altogether  excluded  from  the  oflSce  of 
Justice  of  the  peace  of  Old  Forge  borough. 
Phillip  Schwartz,  defendant,  appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WALr. 
LING,  JJ. 

A.  A.  Vosburg  and  John  Memolo,  both  of 
Scranton,  for  appellant  John  H.  Bonner,  of 
Scrauton,  for  appellee. 

PER  CURIAM.  This  case  was  tried  with- 
out a  Jury,  and  the  Judgment  of  ouster 
against  appellant  is  affirmed  on  the  facts 
found  and  the  legal  conclusions  readied  by 
the  learned  trial  Judge. 

"^"^^^^       (JBT  Pa.  48) 
MAGUIBB  T.  PREFERRED  REALTY  CO. 

(Supreme  Court  of  Pennsylvania.    March  6, 
1917.) 

1.  ACKITOWLEDOMXNT     €=>5— DEKD»— NECBSei- 

XT  AS  Between  Pabtieb. 
A  deed  executed  and  delivered  is  sufficient  to 
pass  title  between  the  parties,  though  not  «o- 
knowledged. 

[Ed.  Note. — For  other  cases,  see  Acknowledg- 
ment, Cent  Dig.  {§  22-42,  44.] 

2.  Pleading  ®=3S(15)— Fradd— Allegationb. 

Where  a  declaration  in  ejectment  contains 
no  allegations  of  fact  showing  fraud,  an  amend- 
ment must,  in  the  same  degree  of  certainty,  de- 
tail the  circumstances  pointing  to  that  concla< 
sion. 

[EM.  Note.— For  other  cases,  see  Pleading 
Cent  Dig.  §  28^.] 

3.  Ejectment  «=>75— Statement  of  Claix— 

DEMtTRKEB. 

A  statement  of  claim  in  ejectment  averred 
that  plaintiff  conveyed  the  realty  to  defendant 
in  consideration  of  its  agreement  to  give  plain- 
tifF  certain  shares  of  stock,  and  that  after  tbe 
conveyance  defendant  had  refused  to  deliver  any 
stock  to  plaintiff  so  that  the  consideration  of  the 
conveyance  had  failed,  but  did  not  allege  the  facta 
indicating  fraud  in  securing  the  deed,  field  that 
ejectment  was  not  the  proper  remedy,  so  that  a 
demurrer  to  the  statement  of  claim  was  properly 
sustained  without  prejudice  to  plaintilTs  right 
to  assert  the  claim  m  some  other  proceeding. 

[Ed.  Note.— For  other  cases,  see  Ejectment, 
Cent  Dig.  {  204.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Ejectment  by  Mary  Magulre  against  the 
Preferred  Realty  Company  for  recovery  of 
land  situate  in  tbe  city  of  Philadelphia.  De- 
murrer to  plaintUTs  statement  of  claim  sus- 
tained, judgment  for  defendant,  and  plain- 
tiff appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSCHZISKEIR,  FRAZER,  and  WAL- 
LING, JJ. 

Alex.  Simpson, .  Jr.,  of  Philadelphia,  for 
appellant  Graham  C.  Woodward  and  Sam- 
uel F.  Wheeler,  both  of  Philadelphia,  for  ap- 
pellee. 


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101 


MOSCHZISKER,  J.  This  action  was  In 
ejectment;  a  declaration  and  abstract  of 
title  were  filed,  to  which  a  demurrer  was 
ait»ed;  the  judgment  favored  defendant, 
and  plaintiff  has  ai^>ealed.  In  the  course 
of  bis  opinion.  Judge  Ferguson,  of  the  court 
below,  states  the  material  facts  thus: 

"The  plaintifl  avers  that  she  signed  a  deed 
conveying  the  premises  in  qnestion  to  the  de- 
fendant [corporation],  but  that  she  did  not  ac- 
knowledge the  deed  in  the  presence  of  the  no- 
tary public  who  certified  that  she  had  done  so. 
She  also  avers  that  the  deed  was  signed  in  the 
presence  and  at  the  request  <rf  Samuel  F.  Wheel- 
er, 'who  was  her  attorney,'  and  who  the  plain- 
tin  believed  was  the  sole  manager  and  counsel 
and  owner  of  all  the  capital  stock  of  the  de- 
fendant corporation ;  and  that  the  consideration 
for  the  deed  was  a  verbal  agreement  made  by 
the  defendant,  through  Wheeler,  that  all  the  de- 
fendant's corporate  stock  should  be  transferred 
and  delivered  to  her  as  security  for  money  due 
her  for  advances  made  to  Wheeler  and  his  wife 
and  for  money  expended  in  connection  with 
the  sheriff's  sale  under  which  plaintiff  obtained 
title.  The  declaration  further  sets  out  that  the 
deed  was  recorded  without  plaiutifTs  knowledge 
or  consent,  and  the  defendant,  through  Wheeler, 
refused  to  surrender  the  stock  [and  that  "the 
consideration  for  said  conveyance  wholly  fail- 
ed")." 

[1]  After  the  foregoing  review  of  the  facts 
stated  in  the  declaration  demurred  to,  the 
(pinion  goes  on  to  say: 

"It  will  be  observed  that  the  plaintiff  fails 
to  aver  anything  with  relation  to  the  delivery  of 
the  deed;  in  fact,  a  delivery  is  necessarily  im- 
plied from  the  averment  that  there  was  a  con- 
sideration which  failed.  The  plaintiff  nowhere 
alleges  that  she  demanded  a  return  of  the  deed. 
What  she  seeks  is  a  delivery  of  the  stock  of  the 
defendant  corporation,  to  be  held  by  her  as  se- 
curity. It  is  also  to  be  noted  that  the  plain- 
tiff does  not  aver  that  the  defendant  company, 
to  whom  she  made  the  deed,  held  the  stock  or 
was  in  a  position  to  deliver  it  as  the  considera- 
tion, but  the  stock  is  alleged  to  be  owned  by 
Wheeler,  who  refuses  to  deliver  it.  A  deed  does 
not  necessarily  have  to  be  acknowledged  before 
a  notary  pnbUc  to  make  it  a  valid  instrument 
between  parties.  Rigler  v.  Cloud,  14  Pa.  361; 
Cable  V.  Cable,  146  Pa.  451,  23  Ati.  223.  Eze- 
ctition  and  delivery  are  sufficient  to  pass  the 
title,  and  there  is  no  averment  in  the  declara- 
tion from  which  it  could  be  inferred  that  the 
deed  was  not  delivered." 

nien,  after  dtlng  several  authorities,  the 
court  below  determined  that,  on  the  fftce  of 
the  plalnbUfs  pleading,  the  suit  was  merely 
an  effort  to  enforce  "a  verbal  agreement, 
made  by  one  not  a  party  to  the  deed,  that 
all  the  capital  stock  of  the  defendant  com- 
pany should  be  transferred  and  delivered  to 
the  plaintiff  as  security,"  which  "agreement 
cannot  be  enforced  by  an  action  In  eject- 
ment" 

The  plaintiff  contends  that  the  learned  court 
below  misconceived  the  real  purpose  of  her 
suit,  and  that  the  very  form  of  the  action — 
ejectment — shows  It  was  to  recover  the  land 
and  not  to  gain  the  consideration ;  but,  even 
looking  at  the  case  from  that  vlewiwlnt.  It  la 
not  at  all  apparent  material  error  was  com- 
mitted in  entering  the  Judgment  under  re- 
view. In  her  first  declaration,  the  plaintiff 
simply  aTecred: 


"On  January  17,  1916,  plaintiff  conveyed  said 

§  remises  to  the  Preferred  Realty  Company,  the 
efendant,  by  deed  of  that  date,  recorded,  etc. 
•  •  ♦  Said  conveyance  was  made  in  consider- 
ation of  an  agreement  by  defendant,  through  its 
president,  to  give  plaintiff  stock  of  defendant 
in  payment  therefor  -  but,  since  said  convey- 
ance was  made,  defendant,  through  its  president, 
has  refused  to  give  to  plaintiff  any  of  the  stock 
of  defendant.  •  •  *  Wherefore  the  consider- 
ation for  said  conveyance  has  wholly  failed," 
etc 

Subsequently  an  "amended  declaration  and 
abstract  of  title"  were  filed,  oontalnlng  the 
averments  already  outlined,  and  the  appel- 
lant contends  that  these  new  averments  are 
sufficient  to  show  such  a  case  of  fraud  as 
entirely  to  avoid  plalntlfTs  deed  of  convey- 
ance and  leave  the  property  In  her  as  though 
that  instrument  had  never  been  executed. 
If  this  were  so,  then  It  might  be  that  the 
plaintiff  could  maintain  ejectment;  but,  be- 
ing on  demurrer,  the  Judgment  must  stand 
or  fall  uptm  a  review  of  the  declaration  as 
written,  and  not  on  the  facts  of  the  case  as 
they  are  contended  to  be  in  appellant's  argu- 
ment. 

[2]  The  original  declaration  contains  no  al- 
legations of  fact  indicating  fraud,  and  the 
averments  in  the  amendment,  while,  perhaps, 
suggesting  the  possibility  of  some  fraudu- 
lent purpose  on  the  part  of  Mr.  Wheeler, 
when  he  secured  the  deed  from  the  plaintiff, 
do  not  so  charge  in  terms.  "Fraud  is  never 
to  be  presumed."  Addleman  v.  Manufac- 
turers' light  &  Heat  Co.,  242  Pa.  687,  690, 
89  Atl.  674,  675.  When  there  Is  no  particu- 
lar averment  of  a  fraudulent  purpose,  but 
the  circumstances  detailed  are  depended  up- 
on as  showing  such  to  be  the  case,  then  the 
facts  relied  upon  must  not  only  be  fully  and 
unequivocally  avferred,  but  they  must  point 
with  some  degree  of  certainty  to  the  ccmclu- 
sion  contended  for;  and  in  such  cases  the 
intendments  are  taken  most  strongly  against 
the  pleader,  for  he  la  presumed  to  have  stat- 
ed all  the  facts  involved,  and  to  have  done  so 
as  favorably  to  hims^  as  his  conscience 
win  permit  Baker  v.  Tustin,  245  Pa.  490, 
601,  91  Att.  891;  Little  v.  Thropp,  245  Pa. 
639,  644,  91  Aa  924. 

[3]  Here,  as  already  suggested,  the  facts 
detailed  in  plaintiff's  declarations  do  not, 
with  any  degree  of  certainty,  lead  the  mind 
to  the  conclusion  that.  If  they  should  be 
proved,  a  Jury  would  be  Justified  In  finding 
the  deed,  under  which  the  defendant  claims, 
to  have  been  fraudulently  obtained  by  It 
We  say  this,  for  the  averments  of  the  dec- 
laration are  vague  and  Inconclusive  in  many 
material  respects.  In  the  first  place,  it  is 
not  averred  that  Mr.  Wheeler  was  plaintiff's 
counsel  or  attorney  at  the  time  the  deed  was 
executed  by  her,  or  that  be  acted  in  such 
capacity  in  this'  particular  transactlou ;  next, 
there  is  no  allegation  that  he  was  duly  au- 
thorized or  actually  did  act  on  behalf  of  the 
defendant  company  in  making  the  alleged 
verbal  agreement  with  the  plaintiff;  and, 
finally,  the  averment  that  Wheeler  was  the 


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ownier  of  all  the  corporate  stock  of  the  de- 
fendant except  a  few  shares,  Is  too  Indef- 
inite to  substitute  him  In  all  respects  for  the 
latter,  there  being  no  allegation  that  he  was 
the  sole  owner,  In  possession  of  the  stock, 
or  In  control  of  the  coriwratlon,  at  the  time 
of  the  occurrences  complained  ot  The  fore- 
RoinK  are  only  a  few  of  many  insufficiencies 
which,  If  necessary.  Blight  be  pointed  out; 
but  they  are  enough  to  show  the  inadequacy 
of  the  declaration.  We  feel,  however,  the 
plaintiff  should  be  placed  in  such  position 
that  the  present  Judgment  will  not  be  taken 
as  precluding  her  from  properly  asserting 
her  alleged  rights  in  some  other  action  or 
proceeding  where  both  the  realty  company 
and  Mr.  Wheeler  are  Included  as  defendants. 
The  assignments  of  error  are  overruled, 
and  the  Judgment  is  affirmed,  without  prej- 
udice, as  above  Indicated. 


(2ST  Pa.  6) 

AliLEN  T.  SCHEIE  et  aL 

(Supreme  Court  of  Pennsylvania.    March  S, 
1917.) 

1.  Easbuxnts  ®=»51— Use— Extent. 

An  easement  cannot  lawfully  be  used  for  a 
purpose  different  from  that  for  which  it  was 
dedicated. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  a  10&-112.) 

2.  Easements   <8=>12(2)— Feb— "Road"— "Pm- 
VATE  Road." 

The  term  "road,"  and  especially  "private 
road,"  is  indicative  of  an  easement  rather  than 
a  fee. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent.  Dig.  §S  36-38. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Roi^d;   Private  Road.] 

3.  Easements  «=»C1  (9)— Action  foe  Injunc- 
tion—Burden OF  Proof. 

The  burden  was  upon  plaintiff  to  establish 
her  ownership  to  the  fee  of  the  land,  included  in 
a  private  road  in  which  defendants  had  a  user, 
before  she  was  entitled  to  construct  a  gas  pipe 
line  on  the  surface. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  g  143.] 

4.  Easements  iS=>C1(9)— Action  fob  Injunc- 
tion—Interest— Evidence. 

Evidence  in  a  suit  by  tlie  owner  of  a  farm 
to  enjoin  defendants  from  obstructing  a  private 
way  giving  access  to  a  public  road  held  to  show 
that  plaintifE  did  not  have  the  fee  in  the  road, 
but  had  only  an  easement  of  way. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Vie.  i  143.] 

5.  Easements  <©=>51— Wat— Use. 

The  owner  of  an  casement  in  a  private  right 
of  way,  in  which  defendants  also  had  a  right 
of  use,  was  not  entitled  to  maintain  a  line  of 
gas  pire  on  the  surface,  as  that  was  not  con- 
templated when  the  easement  of  way  was  cre- 
ated. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  §S  109-112.] 

6.  Injunction  <g=>130— Objection  to  Juris- 
diction— Statute. 

Though  defendant's  first  objection  to  the  ju- 
risdiction of  equity,  to  enjoin  interference  with 


easement  made  in  request  for  findings  after  the 
evidence  was  submitted  was  not  in  compliance 
with  Act  June  7,  1907  (P.  I*  440)  S  1,  it  did 
not  affect  the  chancellors  duty  to  dismiss  the 
bill  if  the  facta  averred  were  not  substantially 
proved  at  the  triaL 

[EM.  Note.— For  other  cases,  see  Injunction, 
Cent  Dig.  a  288-300.] 

Appeal  from  Court  of  CSommon  Pleas,  Al- 
legheny County. 

Bill  In  equity  for  an  Injunction  by  Eleanor 
Walker  Allen  against  John  Scheib,  Sr.,  and 
another.  From  a  decree  awarding  an  in- 
junction, defendants  appeal  Modified  and 
affirmed. 

Argued  before  BROWN,  a  J.,  and  POT- 
TER, MOSCHZISKER,  FRAZBR,  and  WAI/- 
LING,   JJ. 

E.  J.  McKenna,  of  Pittsbargh,  for  appel- 
lants. J.  W.  (Jollins,  of  Pittsburgh,  for  ap- 
pellee. 

WALONG,  J.  This  equitable  action  la  to 
determine  the  rights  of  the  respective  parties 
to  a  certain  strip  of  land  situate  In  Richland 
township,  Allegheny  county,  and  used  as  a 
private  road.  The  Butler  plank  road  extends 
through  said  township  in  a  northerly  direc- 
tion, and  the  farm  of  the  late  John  Scott, 
containing  142  acres,  is  located  thereon.  He 
died  in  1875,  and  clause  4  of  his  will  pro- 
vides: 

"I  give  and  devise  to  my  grandson,  John  Scott 
Teacher,  15  acres  of  my  Bakerstown  farm ;  t» 
my  daughter,  (jatherine  Harbison,  10  acres; 
to  my  granddaughter,  Sarah  Harbison,  5  acres; 
to  my  daughter  Jaae  Harbison,  10  acres,  all  to 
be  divided  out  o£  my  Bakerstown  farm  west  of 
the  plank  road." 

He  left  other  heirs  and  devisees  aside  from 
those  above  mentioned ;  and,  by  some  family 
arrangement  made  shortly  after  his  death, 
the  40  acres  mentioned  in  the  clause  was  set 
aside  to  the  devisees  therein  named  out  of 
the  northwest  comer  of  the  farm,  away  from 
the  public  highway.  To  afford  access  to  the 
40-acre  tract  it  seems  to  have  been  a  part 
of  the  agreement  that  a  private  road  or  lane, 
of  the  .width  of  16%  feet,  should  be  opened, 
extending  eastwardly  from  the  southeast 
corner  of  the  40-acre  tract,  about  1,295  feet, 
to  the  Butler  plank  road,  which  lane  was 
later  fenced  and  opened,  and  has  been  used 
for  about  20  years  last  past  by  the  occupants 
of  the  40  acres,  the  same  having  been  par- 
titioned in  1876,  among  the  devisees  above 
named.  This  is  shown  by  a  map  made  that 
year  by  Charles  Gibson,  at  the  Instance  of 
one  of  the  devisees.  The  purparts  thereby  al- 
lotted were  sold  from  time  to  time,  and  the 
deeds  therefor  include  fractional  parts  of  the 
lane,  corresponding  to  the  siae  of  the  respec- 
tive purparts,  for  example,  each  deed  for  15 
acres  Includes  three-eighths  of  the  lane.  In 
1901  the  title  to  the  40-acre  tract,  together 
with  whatever  Interest  the  owners  thereof 
had  in  the  lane,  became  vested  in  John  Scott 
Harbison,  who  conveyed  same  to  plaintiff  in 


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103 


ISU.  The  lane  was  also  used  by  the  owners 
ot  the  balance  of  the  John  Scott  fann,  as 
their  necessities  required. 

So  far  as  appears  the  family  arrangement 
above  stated  was  not  in  writing,  and  there 
Is  no  record  of  any  conveyance  from  the  John 
Scott  heirs  to  plaintiff's  predecessors  for  the 
40  acres  or  the  lane.  Plaintiff  contends  that 
tbe  lane  was  included  in  the  40  acres.  There 
la  a  part  of  the  John  Scott  farm  containing 
about  33  acres,  some  24  acres  of  which  He  be- 
tween the  40  acres  and  the  Butler  plank  road 
and  north  of  the  lane,  as  to  which  he  seems 
to  have  died  Intestate.  In  1881,  all  of  the 
heirs  of  John  Scott  Joined  In  a  conveyance 
of  the  24-acre  tract  to  James  D.  Harbison, 
wherein  the  southern  boundary  is  describ- 
ed as: 

"Thence  along  a  certain  road  or  lane  between 
the  land  herein  conveyed  and  the  land  of  John 
Stirling." 

Another  part  of  the  Scott  farm,  containing 
about  30  acres,  and  called  the  Stirling  tract, 
is  on  the  west  side  of  the  planli  road  and 
bonnded  on  the  north  by  the  40-acre  tract 
and  the  lane. 

By  sundry  conveyances  the  title  to  the  24- 
acre  and  the  30-acre  tracts  became  vested 
In  Thomas  Morrow,  who  in  1910  conveyed 
same  with  other  land  to  defendant,  John 
Scbelb,  Sr.,  the  deed  for  which  in  one  of  the 
conrses  mentioned,  "a  point  at  the  corner 
of  a  private  road,"  and  the  general  descrip- 
tion therein  includes  the  lane  and  the  land  ou 
both  sides  thereof.  After  Mr.  Schelb  bought 
this  land  there  was  a  controversy  about  the 
use  of  the  lane,  between  Mr.  Harbison  and 
plaintiff  on  one  side,  and  the  defendants, 
"John  Schelb,  Sr.,  and  John  O.  Schelb,  on 
the  other,  each  side  claiming  to  own  the  same. 
One  of  the  findings  of  the  court  below  Is : 

"Sixth.  That  said  John  Scheib.  Sr..  by  de- 
stroying drains  along  said  private  roacl,  taking 
ont  posts  and  trees  planted  by  plaintiff  and  by 
other  acta  has  repeatedly  interfered  with  plain- 
tiff in  the  use  of  said  private  road." 

The  defendants,  or  those  In  their  employ, 
also  drove  their  stock  across  this  lane,  and 
In  so  doing  obstructed  It  with  wires,  and  re- 
peatedly suffered  the  same  to  remain  in  that 
condition,  to  the  annoyance  and  damage  of 
plahitiff. 

In  191S,  plaintiff  entered  into  a  contract 
with  one  Sebastian  Mueller,  for  the  constmc- 
tl(m  and  maintenance  of  a  line  of  gas  pipe  in 
the  lane,  which  defendants  by  opposition  and 
threats  prevented  being  done.  Thereafter 
plaintiff  filed  her  bill  in  this  case.  Joining 
said  Mueller  as  a  defendant,  but  the  bill  as 
to  him  was  dismissed.  The  learned  trial 
judge,  sltrlng  as  a  chancellor,  found  that 
plaintlfl  had  a  good  title  In  fee  simple  to  the 
strip  of  land  herein  called  the  lane,  and 
entered  a  final  decree,  Inter  alia,  enjoining 
defendants  from  Interfering  with  the  con- 
struction of  the  gas  line,  and  also  from  in- 
terfering with  plaintiff's  free  use  and  main- 


tenance of  the  private  road.  Drfendants  con- 
cede that  plaintiff  has  a  right  to  the  use  of 
the  lane  as  a  passageway ;  in  fact  that  Is  the 
only  means  of  access  to  her  property.  We 
fully  agree  with  the  learned  chancellor  that 
under  all  the  facts  and  circumstances  defend- 
ants should  be  enjoined  from  interfering  with 
plalntlfTs  free  use  and  enjoyment  of  the  said 
private  road  as  such. 

But  plalntlfTs  right  to  lay  or  authorize 
another  to  lay  a  line  of  gas  pipe  therein  de- 
pends upon  the  nature  of  her  ownership.  If 
an  easement,  then  she  can  use  It  only  for  the 
purpose  for  which  it  was  established  or  dedi- 
cated, and  cannot  lay  a  pipe  line  therein. 
U.  S.  Pipe  Line  Co.  &  Breckenrldge  v.  Del., 
Lack.  &  Western  B.  B.  Co.,  62  N.  J.  Law,  254, 
41  Atl.  759,  42  L.  B.  A.  672;  14  Cyc.  1207, 
note  98. 

[1]  As  an  easement  It  cannot  lawfully  be 
used  for  a  purpose  different  from  that  for 
which  It  was  dedicated.  Kirkbam  v.  Sharp, 
1  Whart.  323,  29  Am.  Dec.  57;  Mershon  v. 
Fidelity  Ins.,  Trust  &  Safe  Deposit  Co.,  208 
Pa.  292,  67  Afl.  669 ;   14  Cyc.  1215. 

[2-6]  As  above  stated  the  chancellor  finds 
that  plaintiff  owns  the  fee.  If  so,  she  may. 
of  course,  construct  the  gas  line  therein ;  but 
a  careful  examination  of  the  record  falls  to 
disclose  any  sufficient  evidence  to  support 
that  conclusion.  As  above  stated,  there  Is 
no  deed  or  other  writing  showing  any  con- 
veyance by  the  Scott  heirs  of  the  so-called 
private  road.  Tnie,  the  road  Is  recognized 
In  their  deed  to  James  D.  Harbison  as  above 
quoted,  "thence  along  a  certain  road  or  lane 
between  the  land  herein  conveyed  and  the 
land  of  John  Stirling*';  but  that  does  not 
show  that  the  title  to  the  fee  thereof  has 
passed  from  the  Scott  heirs.  The  term 
"road,"  and  especially  "private  road,"  Is  in- 
dicative of  an  easement  rather  than  a  fee. 
See  Klster  v.  Beeser,  08  Pa.  1,  42  Am.  Bop. 
608.  Plaintiff  relies  largely  on  the  evidence 
of  her  grantor,  John  S.  Harbison,  as  tending 
to  establish  a  parol  partition  of  the  Scott 
farm  made  in  1876,  by  which  this  lane  Is  al- 
leged to  have  been  allotted  to  the  owners  of 
the  40-acre  tract,  and  as  a  part  thereof.  But 
he  does  not  say  that  all  of  the  Scott  heirs 
were  present,  and  shows  they  were  not  when 
he  names  those  who  were  there.  The  chan- 
cellor in  one  part  of  his  exhaustive  discus- 
sion says: 

"Respecting  plaintiff's  right  to  the  uninter- 
rupted use  of  tbe  road  there  is  no  room  for  dis- 
pute. Respecting  the  precise  limits  of  her 
rights,  whethor  she  has  a  fee  or  a  mere  ease- 
ment, is  a  debatable  question.  •  ♦  •  Wheth- 
er Mr.  Scheib  has  the  fee  in  the  16^-foot  strip 
of  land  or  the  mere  right  to  use  it  in  common 
with  the  plaintiff,  or  any  right  in  it,  he  has  no 
right  to  fill  up  necessary  drains,  or  otherwise 
prevent  the  free  use  and  proj^er  maintenance  of 
the  road,  and  plaintiff  is  entitled  to  an  injunc- 
tion restraining  him  from  interfering  with  her 
in  the  exercise  of  her  lawful  rights. 

The  John  Scott  heirs,  aside  from  those 
named  in  Clause  4  of  the  will,  were  not  par- 


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tlea  to  the  partition  of  the  40-acTe  tract,  nor 
to  the  Gibson  survey,  nor,  so  far  as  the  rec- 
ord shows,  bound  thereby.  And  certainly 
they  were  not  bound  by  Qie  recitals  in  the 
deeds  from  the  owners  of  the  respective  pur- 
parts of  the  40-acre  tract  One  cannot  create 
a  fee  in  land  merely  by  including  It  in  his 
conveyance.  And  the  above-cited  reference 
to  this  road  or  lane  in  the  deed  from  the 
Scott  heirs  to  James  D.  Harbison,  and  also 
In  the  deed  from  Morrow  to  defendant,  arc 
certainly  as  consistent  with  an  easement  as 
with  a  fee.  The  mere  reference  in  a  con- 
veyance to  a  private  road  does  not  teud  to 
show  ownership  in  fee  thereof  in  the  party 
for  whose  use  it  may  have  l>een  established. 
Such  road,  or  alley,  may,  prima  facie,  be 
used  by  all  abutting  owners,  and  defendants 
as  such  would  have  standing  to  object  to  au 
additional  use  being  made  thereof  by  the  con- 
struction therein  of  a  gas  line,  especially  as 
this  Is  proposed  to  be  constructed  on  the  sur- 
face of  the  ground. 

PlaintlEF  as  the  owner  of  the  40-acre  tract 
undoubtedly  has  an  easement  in  the  private 
road  and  a  right  to  the  free  and  imintcrrupt- 
ed  use  thereof  as  a  way  for  purposes  of  pas- 
sage over  and  upon  the  same;  and,  so  far 
as  appears,  defendants  may  lawfully  make 
such  use  thereof  as  will  not  interfere  with 
the  rights  of  plaintitf. 

The  burden  was  upon  plaintiff  to  establish 
her  ownership  to  the  fee  of  the  land  included 
in  the  road,  and  therein  her  proofs  fail,  and 
the  finding  of  the  court  below  in  her  favor  as 
to  that  cannot  be  sustained;  nor  can  the  de- 
cree In  so  far  as  it  restrains  defendants  from 
interfering  to  prevent  plaintiff  from  the  con- 
struction of  a  gas  line  in  the  road. 

[8]  The  defendants,  John  Scheib,  Sr.,  and 
John  G.  Scheib,  did  not,  by  demurrer  or  an- 
swer, question  the  Jurisdiction  of  the  court, 
upon  the  ground  that  the  suit  should  have 
been  brought  at  law,  but  filed  an  answer  to 
the  merits  of  the  case  without  asking  for  an 
Issue  as  to  any  questions  of  fact,  and  thereby 
the  right  of  trial  by  Jury  seems  to  have  been 
waived,  under  the  provisions  of  section  1,  of 
the  act  of  June  7, 1907  (P.  L.  440 ;  5  Purdon's 
Digest,  p.  6001).  The  defendants  first  raised 
the  question  of  Jurisdiction  in  requests  for 
findings  after  the  evidence  was  submitted; 
this  was  not  a  compliance  with  the  statute. 
Nanhelm  v.  Smith,  253  Pa.  380,  98  AU.  602. 
However,  the  proviso  to  this  8e(;tlon  is: 

"That  this  shall  not  alter  or  affect  the  duty 
of  the  chancellor  to  dismiss  the  bill  if  the  facts 
therein  averred,  as  sliowing  or  teudinR  to  show 
the  right  to  relief,  be  not  substantially  proved 
at  the  trial" 

— and  by  reason  thereof  plaintiff  is  not  en- 
titled to  relief  based  on  her  alleged  owner- 
ship of  the  fee  of  the  land  in  question;  for 
such  claim  Is  not  substantially  praven. 

The  final  decree  entered  by  the  court  be- 
low is  therefore  modified  by  striking  out  so 
jiuch  thereof  as  restrains  defendants,  John 


Scheib,  Sr.,  and  John  O.  Scheib,  from  inter- 
fering with  plaintiff  in  ttie  construction  and 
maintenance  of  a  gas  line  in  or  upon  said 
private  road.  The  costs  on  this  appeal  to  be 
paid  by  the  apx>ellee. 

"°'°°'""  (40  R.  I.  «S) 

GAGNOX  V.  HHODB  ISIAND  Ca 
(No.   S022.) 

(Supreme    Court   of    Rhode   Island.     July   5» 
1917.) 

1.  Tbiai,    ©=>26(K1)— Rbfdbai.    or   Ihstbuc- 

HONS  COVEBED. 

The  refusal  of  instructions,  which  in  so  far 
as  they  were  correct  were  covered  by  those 
given,  was  not  error. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  f  651.] 

2.  Damages    €=»52  —  PxbsonaIi    Irjubies— 

Mental  Suvferino. 
Mental  suffering  of  a  pregnant  woman  con- 
sequent upon  apprehension  and  anxiety  as  to 
the  effect  of  an  injury  upon  the  foetus  becomes 
an  element  of  her  damage  as  a  natural  and 
proximate  result  of  the  negligence  which  caused 
the  injury. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  §§  100,  255.] 

3.  Dauages     €=>52  —  Pebsoral    Injubies— 

MlENTAL   SUFFEHING. 

Although  a  mother  should  not  be  given  dam- 
ages for  her  child's  misfortune  during  life  re- 
sulting from  an  injury  to  the  foetus,  or  for  her 
own  consequent  mental  distress  during  the  life- 
time of  the  child  occasioned  by  its  deformity, 
she  is  entitled  to  damages  for  her  distress  and 
disappointment  at  the  time  of  the  birth  because 
through  defendant's  negligence  she  has  been  de- 
prived of  the  right  and  satisfaction  of  bearing 
a  sound  child,  if  it  be  found  that  the  child's  de- 
formity is  due  to  the  injury  received  through  de- 
fendant's negligence. 

[Kd.  Note. — For  other  cases,  see  Damages, 
Cent  Dig.  §§  100,  255.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  Ounties;  Charles  F. 
Stearns,    Judge. 

Action  by  Eleanors  Gagnon  against  the 
Rhode  Island  Company.  Verdict  for  plain- 
tiff, new  trial  denied,  and  defendant  ex- 
;-epts.  Exceptions  overruled,  and  case  re- 
mitted for  entry  of  Judgment 

Archambault  &  Jalbert,  of  Woonsocket, 
for  plaintiff.  Clifford  Whipple  and  Alonzo 
R.  Williams,  both  of  Providence,  for  defend- 
ant 

PER  CURIAM.  This  Is  an  action  of  tres- 
pass on  the  case  brought  to  recover  daunages 
for  injuries  alleged  to  have  been  suffered  by 
the  plaintiff  through  negligence  of  the  de- 
fendant The  case  was  tried  before  a  Jus- 
tice of  the  superior  court  sitting  with  a  Jury 
and  resulted  in  a  verdict  for  the  plaintiff. 
Defendant's  motion  for  a  new  trial  was  de- 
nied by  said  Justice.  The  case  Is  before  us 
upon  the  defendant's  exception  to  the  de- 
cision of  said  Justice  on  the  motion  for  a 
new  trial  and  upon  exceptions  taken  by  the 
defendant  to  certain  rulings  of  said  Justice 
made  in  the  course  of  the  trial. 


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PARIAIT  y.  OLSSON 


105 


It  appears  that  the  defendant's  car  track 
(Ht  John  street  near  Pleasant  street  in  the 
dty  of  Woonsocket  Is  laid  on  the  westerly 
side  of  the  roadway  In  John  street,  the  west- 
erly rail  of  said  track  being  2  feet  and  10 
Inches  from  the  curbstone  of  the  westerly 
sidewalk  of  John  street  Near  the  corner  of 
John  and  Pleasant  streets  said  track  begins 
to  curve  toward  the  east  and  runs  Into 
Pleasant  street  In  passing  upon  and  around 
said  curve  the  rear  of  a  double-truck  car  of 
the  defendant  begins  to  overlap  the  wester- 
ly sidewalk  of  John  street  and  continues  to 
80  overlap  the  sidewalk  for  a  considerable 
distance,  the  greatest  overlapping  being  15 
Inches  at  one  point  On  the  day  of  the  oc- 
currence complained  of,  the  plaintiff.  In  com- 
pany with  two  other  women,  was  walking 
in  a  southerly  direction  on  the  westerly 
sidewalk  of  John  street;  the  plaintiff  being 
the  one  nearest  to  the  curbstone.  There 
was  testimony  from  which  the  Jury  might 
find  that  the  servants  of  the  defendant  were 
operating  one  of  the  defendant's  double-truck 
cars  on  said  John  street  behind  said  plain- 
tiff; and,  without  warning  or  care  for  the 
safety  of  the  plaintiff,  when  the  danger  to 
the  plaintiff  must  have  I>een  apparent  to  the 
servants  of  the  defendant  they  drove  said 
car  around  said  curve,  whereby  the  rear  of 
said  car  projected  over  a  portion  of  the  west- 
erly sidewalk  of  John  street  struck  the 
plaintiff,  knocked  her  down,  and  inflicted 
serious  injuries  upon  her.  The  justice  pre- 
siding refused  to  disturb  the  verdict  in  re- 
spect to  the  finding  of  liability  or  the  assess- 
ment of  damages.  After  an  examination  of 
the  transcript  of  evidence,  we  find  no  reason 
tor  overruling  hia  decision. 

[1]  The  defendant's  exceptions  to  the  re- 
fusal of  said  justice  to  charge  the  jury  as 
requested  are  without  merit.  Said  justice 
carefully  Instructed  the  jury  as  to  the  duty 
of  the  plaintiff  and  of  the  defendant  In  the 
premises,  and,  so  far  as  the  charge  which 
the  defendant  requested  was  a  correct  state 
ment  of  the  law  applicable  to  the  evidence, 
such  instruction  had  been  fully  given  by  said 
justice. 

[2,  3]  The  plaintiff  at  the  time  of  the  ac- 
cident was  pregnant;  she  was  struck  and 
felt  pain  In  bar  back  and  side,  and  she  tes- 
tified that  at  the  time  of  the  accident  "I 
felt  the  child  pushing  toward  the  right" 
The  plaintiff  further  testified  that  from  the 
time  of  the  accident  until  the  birth  of  the 
child  she  entertained  fears  that  the  child 
would  be  bom  deformed.  The  defendant  ex- 
cepted to  the  admission  of  testimony  that 
the  bead  of  the  child  was  deformed  at  birth. 
The  defendant  then  excepted  to  the  admis- 
sion of  testimony  that  when  the  plaintiff 
saw  this  deformity  she  was  pained.  The 
defendant  also  excepted  to  the  charge  of  the 
Jnstice  to  the  jury  that  In  assessing  damages 
they  might  consider  any  mental  suffering, 
which  they  found  that  the  plaintiff  had  en- 


dured, due  to  her  apprehension  that  she 
would  give  birth  to  a  deformed  child;  and 
that  they  might  consider  her  mental  suffer- 
ing at  the  time  of  the  bli-tb  caused  by  her 
disappointment  at  finding  a  deformity  in 
the  head  of  the  child,  If  the  jury  should  also 
find  that  the  deformity  was  a  result  of  the 
accident  to  the  plaintiff.  The  justice  very 
carefully  Instructed  the  jury  that  the  plain- 
tiff was  not  entitled  to  compensation  for  the 
Injury  to  the  child  or  for  any  disappointment 
and  suffering  which  she  as  Its  mother  might 
feel  during  Its  life  by  reason  of  any  deform- 
ity In  the  child;  but  that  the  jury  were 
justified  in  giving  compensation  to  the  plain- 
tiff for  the  mental  suffering  which  the  jury 
might  find  she  had  endured  before  the  birth 
by  reason  of  her  apprehension  of  the  child's 
deformity,  and  also  for  her  suffering  at  the 
time  of  birth  caused  by  disappointment  In 
finding  she  had  not  been  delivered  of  a 
sound  child,  provided  they  also  found  that 
the  deformity  was  due  to  the  accident  The 
exceptions  which  we  are  now  considering 
should  be  overruled.  The  foetus  1^  a  part 
of  the  person  of  a  pregnant  woman,  and  if, 
by  reason  of  the  nature  and  circumstances 
of  an  Injury  to  her  person  caused  by  the  neg- 
ligence of  a  defendant,  she  suffers  appre- 
hension and  anxiety  as  to  the  effect  of  the 
injury  upon  the  foetus,  in  accordance  with 
the  well-recognized  rule,  such  mental  suffer- 
ing becomes  an  element  of  her  damage  as  a 
natural  and  proximate  result  of  the  neg- 
ligence which  caused  the  Injury.  Further- 
more, although  she  should  not  be  given  dam- 
ages for  the  child's  misfortune  during  life, 
resulting  from  an  Injury  to  the  foetus,  nor 
for  her  own  subsequent  mental  distress  dur- 
ing the  lifetime  of  the  child  occasioned  by 
Its  deformity,  the  mother  Is  entitled  to  dam- 
ages for  her  distress  and  disappointment  at 
the  time  of  the  birth  because  through  the  de- 
fendant's negligence  she  has  been  deprived 
of  the  right  and  the  satisfaction  of  bearing 
a  sound  child.  If  it  be  found  that  the  child's 
deformity  Is  due  to  the  Injury  she  reorfved 
through  the  defendant's  negligence.  Pres- 
cott  y.  Robinson,  74  N.  H.  460,  69  Atl,  622, 
17  L.  R.  A.  (N.  S.)  694,  124  Am.  St  Rep. 
987;  Big  Sandy  y.  Blankenshlp,  188  Kv. 
438,  118  S.  W.  316,  28  L.  R.  A.  (N.  S.)  845. 
19  Ann.  Cas.  264. 

.  The  defendant's  exceptions  are  all  over- 
mled,  and  the  case  Is  remitted  to  the  su- 
perior court  for  the  entry  of  judgment  on 
the  verdict 


PARIAN  V.  OLSSON  et  aL    (No.  4796.) 

(Supreme  Court  of  Rhode  Island.    June  26. 
1917.) 

Exceptions,  Bill  of  «=359(1)  —  Tbanbcbipt 
OF  Evidence. 
Where  plaintiff  filed  with  his  bill  of  ex- 
ceptions a  partial  transcript  of  the  testimony, 
consisting  only  of  the  cross-examination  of  the 
plaintiff,  and  certain  rulings  of  tibe  trial  judge 


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101  ATLANTIC  ttEPORTBR 


(B.I. 


upon  granting  tlie  nonsuit,  and  endeavored  to 
supplement  the  partial  transcript  by  including  in 
hia  bill  of  exceptions  a  summary  statement  pur- 
porting to  show  what  was  proved  b;  the  other 
portions  of  the  evidence,  ija  order  thereby  to 
bring  upon  the  record  the  purport  of  the  whole 
testimony  on  behalf  of  the  plaintiff,  the  action 
of  the  trial  judge  in  striking  out  and  disallow- 
ing the  summary  statement  of  the  testimony  and 
allowing  the  bill  of  exceptions  thus  changed  and 
in  refusing  to  allow  the  partial  transcript  of 
evidence  filed  with  the  bill  of  exceptions  on  the 
ground  that  it  was  insufficient  was  proper. 

[Kd.  Note.— For  other  cases,  see  Exceptions, 
BUI  of.  Cent  Dig.  {{  106,  lOa] 

Action  by  Daniel  Parian  against  Magnus 
Olsson  and  others.  On  plaintiff's  petition  to 
establish  the  truth  of  his  exceptions.  Peti- 
tion denied  and  dismissed. 

William  J.  Brown,  of  Providence,  for  plain- 
tiff. Fred  L.  Owen,  of  Providence,  for  de- 
fendants. 

PER  CURIAM.  Upon  the  plalntlfTs  peti- 
tion to  establish  the  truth  of  his  exceptions 
and  the  correctness  and  sufficiency  of  the 
transcript  of  testimony.  It  appears  that  the 
plaintiff,  after  suffering  a  nonsuit  In  the  su- 
perior court,  having  reserved  certain  excep- 
tions, In  due  time  filed  his  bill  of  exceptions, 
and  therewith  a  partial  transcript  of  testi- 
mony consisting  only  of  the  cross-examina- 
tion of  the  plaintiff,  and  containing  also  cer- 
tain rulings  of  the  trial  Judge  upon  granting 
the  nonsuit 

The  plaintiff  endeavored  to  supplement  the 
partial  transcript  by  Including  In  his  bill  of 
exceptions  a  summary  statement  purporting 
to  show  what  was  proved  by  the  other  por- 
tions of  the  evidence,  In  order  thereby  to 
bring  upon  the  record  the  purport  of  the 
whole  testimony  oa  behalf  of  the  plaintiff. 
The  trial  judge  struck  out  and  disallowed 
this  summary  statement  with  regard  to  the 
testimony  In  the  case,  and  allowed  the  bill  of 
oxcepUons  as  thus  changed.  The  trial  Judge 
also  refused  to  allow  the  partial  transcript 
of  evidence  filed  with  the  bill  of  exceptions 
on  the  ground  that  it  was  insufficient 

Thereupon  in  due  time  the  plaintiff  filed  In 
this  court  his  petition  to  establish  the  truth 
of  his  exceptions  and  the  correctness  and  suf- 
ficiency of  the  transcript,  under  rul6 1.3  of  this 
court  (62  Ati.  iz).  He  asks  thla  court  to  estab- 
lish his  bill  of  exceptions  as  originally  filed. 
Including  the  summary  statement  of  testimo- 
ny therein,  and  attempts  by  his  sworn  petition 
and  by  affidavit  to  show  not  only  the  correct- 
ness of  the  portion  of  the  transcript  as  filed, 
but  also  by  another  summary  statement  what 
was  the  purport  and  substance  of  all  the 
other  testimony  in  the  case. 

We  think  the  case  Is  niled  by  the  case  of 
Beaule  v.  .^cnie  Finishing  Co.,  36  R.  I.  74, 
8!)  .Vtl.  73.  In  that  cnsc  a  slmiliir  attempt 
was  made.  The  plaintifl'  filed  with  his  bill  of 
exceptions  only  a  portion  of  the  transcript, 
containing  none  of  the  evidence  submitted  to 


the  jury,  but  only  containing  certain  rulings 
of  the  trial  Judge.  Plaintiff  Incorporated  in 
his  bill  of  exceptions  as  filed  a  summary 
statement  of  the  meaning  and  effect  of  cer- 
tain evidence  alleged  to  have  been  Introduced 
at  the  trial;  the  trial  judge  struck  out  and 
disallowed  this  summary  statement  and  al- 
lowed the  rest  of  the  bill  of  exceptions.  The 
trial  Judge  also  allowed  the  partial  tran- 
script as  sufficient  for  the  consideration  of 
certain  numbered  exceptions,  and  found  it 
not  to  be  sufficient  for  the  consideration  of 
certain  other  numbered  exceptions.  Plaintiff 
then  petitioned  this  court  to  establish  the 
truth  of  his  exceptions  and  the  sufficiency  of 
the  transcript,  and  this  court  sustained  the 
action  of  the  trial  Judge  in  striking  out  the 
summary  statement,  and  also  in  his  ruling 
as  to  the  insufficiency  of  the  partial  tran- 
script for  consideration  of  certain  exceptions. 

For  the  same  reasons  stated  In  Beaule  v. 
Acme  Finishing  Co.,  supra,  this  court  is  un- 
able In  the  case  at  bar  to  find  that  the  trial 
Judge  erred  either  in  changing  the  bill  of 
e.^ccptious  by  striking  out  as  he  did  or  In  his 
disallowance  of  the  transcript  as  insufficient. 
We  are  unable  to  accept  the  plaintiff's  state- 
ment in  his  petition  and  affidavits  in  place  of 
the  testimony  which  has  not  been  brought 
before  us  in  due  course  of  procedure;  and  we 
are  forced  to  rely  upon  the  finding  of  the 
trial  Judge  as  to  the  insuffldency  of  the  par- 
tial transcript 

Therefore  the  plaintiff's  petition  must  be 
denied  and  dismissed. 


(40  a.  I.  466) 
MILLER  V.  TRUSTEED  OF  TRINITT  UN- 
ION METHODIST  EPISCOPAL 
CHURCH.    (No.  364.) 

(Supreme  Court  of  Rhode  Island.    July  3, 1917.) 

1.  Mechanics'  Ltkns  <s=  130(1)  —  SxATFaiENT 
— Separate  BuiLDiNfis. 

A  Sunday  school  building  on  the  same  tract 
of  property  upon  which  a  church  was  located 
and  connected  therewith  by  a  corridor,  electric 
wires,  and  steam  pipes  is  not  a  building  separate 
from  the  church  within  the  Lien  Law  (Laws 
1909,  c.  257). 

[Ed.   Note.— For  other  cases,   see  Mechanics' 
Liens,  Cent  Dig.  {{  178,  180,  ISl.] 

2.  Mechanics'  Liens  €=»158— Statement  — 
Amend  uENT. 

A  mechanic's  lien  claimant  can  file  an 
amended  lien  statement  at  any  time  before  the 
expiration  of  the  period  allowed  for  filing  the 
original  lien,  which  amended  statement  takes  the 
place  of  the  original  statement  in  ail  respects. 

[Eid.  Note.— For  other  cases,  see  Mechanics* 
liens,  Cent  Dig.  K  275-278.] 

Appeal  from  Superior  Court,  Providence 
and  Bristol  Counties;  Chester  W.  Barrows, 
Judge. 

Action  by  Charles  Miller  against  the  Trus- 
tees of  Trinity  Union  Mi-thodlst  Episcopal 
Church  to  establish  a  mechanic's  lien.  De- 
cree for  defendant,  and  petitioner  appeals. 
Reversed  and  remanded. 


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107 


Charles  H.  McKenna,  of  Providence,  for 
petitioner.  Gardner,  Pirce  &  Tbomlsy,  of 
Providence  (Thomas  O.  Bradsbaw,  of  PrOT- 
idenoe,  of  coonsel),  for  respondent. 

VINCENT,  J.  This  is  a  petition  to  es- 
tablish a  mechanic's  lien  upon  land  and  build- 
ings belonging  to  the  Trinity  Union  Metho- 
dist Episcopal  CSiurch.  The  cause  comes  be- 
fore this  court  upon  the  petitioner's  appeal 
from  a  final  decree  of  the  superior  court  de- 
nying and  dismissing  Ids  petition.  The  pe- 
titioner's claim  is  for  certain  extra  work 
and  materials  famished  by  him  In  the  con- 
struction of  a  certain  building  owned  by  tbe 
respondents. 

It  appears  that  the  Thomas  V.  Culllnan 
Company  entered  into  a  written  contract 
with  the  trustees  of  Trinity  Union  Metho- 
dist Episcopal  Church  to  erect  a  certain 
boilding  for  Sun'day  school  purposes  upon  the 
premises  owned  by  fhem  and  located  at  the 
comer  of  Bridgtaam  street  and  Trinity  square, 
in  the  dty  of  Providence;  that  the  contract 
for  the  painting  was  snblet  by  the  Culllnan 
Company  to  CSiarles  Miller,  the  present  pe- 
titioner; that  the  petitioner  delivered  cer- 
tain materials  and  commenced  work  under 
bis  painting  contract  on  May  3,  1915,  and 
rendered  bis  bill  to  the  Culllnan  Company 
for  $1,000,  which  was  tlie  entire  amount  of 
the  contract  price ;  that  the  petitioner  on  the 
4th  and  5th  days  of  October,  1915,  performed 
certain  extra  work  and  supplied  certain  ex- 
tra materials  amounting  to  $32.86,  rendering 
a  bill  therefor  on  October  11,  1915;  that 
the  petitioner  performed  some  work  around  a 
doorway  in  the  church,  a  building  adjoining 
the  Sunday  school  building  and  standing 
upon  a  separate  and  adjoining  lot  of  land: 
that  the  Sunday  school  while  being  erected 
was  connected  with  the  church  by  a  corri- 
dor, electric  wires,  water  and  steam  pipes, 
etc.;  that  a  notice  of  Intention  to  claim  a 
mechanic's  lien  was  served  on  respondent  on 
Xovember  5,  1915,  and  on  the  same  day  a 
copy  thereof  was  placed  on  record  In  the 
office  of  the  recorder  of  deeds  la  Providence; 
that  the  petitioner  on  January  6,  1916,  lodged 
his  account  or  demand  in  the  office  of  said 
recorder  of  deeds  and  filed  bis  notice,  setting 
forth  the  land  and  to  whose  Interest  therein 
the  account  or  demand  referred  for  the  pur- 
pose of  commencing  legal  proceedings;  that 
the  petltltmer  afterwards  lodged  In  the  office 
of  said  recor'der  of  deeds  three  other  accounts 
or  demands,  each  of  which  was  followed  by 
a  notice  setting  forth  the  land  and  to  whose 
pstate  the  account  or  demand  referred  for 
the  purpose  of  commencing  legal  proceed- 
ings. These  accounts  were  filed  respectively 
on  January  81,  1916,  February  25,  1916,  and 
February  29,  1916;  that  on  March  1,  1916, 
within  20  days  after  the  lodging  of  the  fourth 
account,  and  the  demand  and  notice,  the  pe- 
titioner filed  In  the  office  of  the  clerk  of  the 
superior  court  for  Providence  coonty  his  pe- 


tition to  enforce  said  claim  of  lien,  attaching 
thereto  notice  of  the  last  account  or  demand 
filed  under  date  of  February  28,  1916;  that 
notice  of  the  filing  ot  said  petition  was  duly 
given  by  the  clerk  of  the  superior  court  for 
Providence  county. 

All  these  accounts  were  filed  wltliln  the 
statutory  period  of  6  months  from  the  com- 
mencement of  the  work  and  the  furnishing 
of  the  materials  which,  are  the  subject  of  the 
claim,  an'd  the  petition  to  enforce  the  Hen 
was  filed  In  the  derk's  office  of  the  supe- 
rior court  within  20  days  after  the  lodging  of 
the  fourth  account,  demand,  and  notice. 

[1]  The  respondent  claims  that  the  peti- 
tioner is  seeking  to  enforce  a  joint  lien  on 
two  separate  buildings;  that  Is,  that  the 
Sunday  school  building,  although  connected 
by  means  of  a  corridor,  electric  wires,  water 
and  steam  pipes,  eta.  Is,  In  contemplation  of 
the  statutory  provisions,  two  separate  build- 
ings, and  that  the  petitioner's  account  lodged 
with  the  recorder  of  deeds  falls  to  separate 
and  specify  which  items  apply  to  the  Sunday 
school  building  and  which  apply  to  the  church 
building.  The  respondent  also  claims  that 
the  petitioner  cannot  be  permitted  to  file 
more  than  one  account  within  the  required 
period  of  6  months  from  the  commencement 
of  the  work  or.  In  otlier  words,  that  the  sec- 
ond, third,  and  fourth  accounts  filed  must 
be  regarded  as  amendatory  of  the  first  ac- 
count flle'd  on  January  6,  1916,  and,  that 
being  so,  the  petition  to  enforce  a  Ilcn  was 
not  filed  in  the  oflice  of  the  clerk  of  the 
superior  court  within  20  days  after  the  com- 
mencement of  legal  proceedings. 

The  respondent,  admitting  for  the  purpose 
of  argiuuent  that  the  petitioner  may  abandon 
the  first  three  accounts  filed  by  him  for  the 
purpose  of  commencing  legal  process,  and 
can  rely  upon  the  fourth  account  filed  Feb- 
ruary 29,  1916,  contends  that  such  fourth  ac- 
count Is  fatally  defective  in  that  it  does  not 
specify  which  Items  are  chargeable  to  the 
Sunday  school  building  and  which  items  are 
chargeable  to  the  church  building. 

The  estate  of  the  respondent  at  the  comer 
of  Bridgham  street  and  Trinity  square  com- 
prises two  adjoining  lots  of  land,  one  having 
been  conveyed  to  It  March  14,  1864,  and  the 
other  November  10, 1909.  The  church  build- 
ing, so  called,  Is  situated  upon  the  first-nam- 
ed lot,  and  the  Sunday  school  building  upon 
the  other  lot  These  buildings  are  used  by 
the  respondent  for  the  purpose  of  conduct- 
ing and  carrying  on  Its  usual  and  customary 
church  work,  and  the  two  structures  are,  for 
more  convenient  use,  connected  by  a  passage- 
way providing  an  easy  and  unexiwsed  means 
of  communication  from  one  to  the  other. 
Light,  heat,  and  water  are  supplied  to  the 
Sunday  school  building  by  means  of  wires, 
steam,  and  water  pipes  extended  from  the 
church  building  through  the  connecting  cor- 
ridor before  mentioned. 

The  respondent  has  cited  section  7,  c  257. 


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101  ATIANTIO  REPORTEB 


(R.I. 


General  Laws  of  1909,  and  also  several  Rhode 
(sland  cases  in  support  of  its  contention  that 
the  account  is  'defectire  in  not  specifying 
the  items  chargeable  to  each  building.  In 
order  to  extend  to  these  authorities  any  ap- 
plicability to  the  case  before  us,  It  would 
be  necessary  to  reach  the  conclusion  that  the 
church  and  Sunday  school  buildings  were 
separate  and  distinct  structures.  In  Bou- 
chard ▼.  Guistl,  22  R.  I.  S91,  48  Atl.  934,  the 
notice  failed  to  state  that  the  materials  were 
furnished  for  any  building  or  improTement 
at  all. 

In  McElroy  v.  Krfly,  27  R.  I.  64,  60  Atl. 
G79,  It  was  held  that  the  petitioner  should 
bare  filed  a  separate  notice  of  his  intention 
to  claim  a  lien  upon  each  house  and  a  sep- 
arate account  for  each  house  of  the  material 
furnished  an'd  used  in  it.  In  that  case,  aa 
the  court  said  in  its  opinion : 

"The  bouses  were  exactly  alike  but  were  not 
joined  together  in  a  block,  but  separated  and 
adapted  to  be  occupied  each  with  a  separate 
curtilage." 

In  Butler  &  Ck>.  ▼.  Rivers,  4  R.  I.  88,  the 

petitioner  proceeded  against  two  several  es- 
tates having  distinct  owners,  and  sought  to 
charge  both  estates  for  the  work  and  ma- 
terials furnished  for  each,  as  the  court  said, 
"in  effect  to  make  one  of  them  chargeable 
with  work  and  materials  expended  upon  the 
other." 

In  McDuff  Coal  &  Lumber  Co.  v.  Del  Mona- 
co, 32  R.  I.  323,  79  Atl.  831,  the  petitioner 
undertook  to  proceed  upon  the  theory  that, 
inasmuch  as  three  houses  on  separate  tracts 
of  land  were  undergoing  construction  at  or 
about  the  snme  time,  they  had  a  general  lien 
upon  all  of  them  for  a  general  balance  due 
on  the  assumption  that  probably  approxi- 
mately one-third  of  the  materials  bad  been 
used  in  each  house,  and  that  consequently 
they  could  include  all  three  claims  in  one 
proceeding. 

The  respondent  claims  that  it  appears  from 
the  foregoing  cases  to  be  incumbent  upon  one 
desiring  to  establish  a  mechanic's  lien  for 
materials  furnished  and  used  in  the  construc- 
tion of  more  than  one  building,  whether  such 
building  be  upon  the  same  or  adjacent  lots 
of  land,  to  describe  each  lot  and  building  sep- 
arately and  to  particularize  in  his  account 
the  items  chargeable  to  each.  We  have  no 
controversy  with  such  deduction  from  the 
cases  cited.  As  before  stated,  in  order  to 
make  them  applicable  it  must  be  assumed 
that  the  church  and  the  Sunday  school  struc- 
tures are  separate  and  independent  build- 
ings. We  cannot  so  hold.  The  whole  tract 
of  land  is  owned  by  the  respondent;  the 
buildings  are  used  for  one  general  purpose; 
they  are  physically  connected,  the  one  being 
dependent  upon  the  other  for  light,  heat,  and 
water.  We  think  that  under  these  condi- 
tions the  respondent's  claim  of  two  separate 
and  distinct  buildings  cannot  be  accepted. 
In  fact,  to  carry  out  and  establish  the  con- 
necting corridor  work  upon  both  structures 


would  be  required,  and  the  determination  ot 
a  proper  dividing  line  between  the  two  would 
be  difficult,  if  not  impossible. 

[2]  The  respondent  farther  contends  that 
the  account  lodged  with  the  recorder  of  deeds 
February  29,  1916,  that  being  the  fourth  ac- 
count, la  fatally  defective,  because  it  is  In 
amendment  of  the  first  account  filed  January 
6,  1916,  and  cites  Harris  v.  Page,  23  R.  I.  440, 
50, Atl.  859.  In  that  case  the  petitioner 
sought  to  amend  his  account  by  extending  it 
or  adding  thereto  items  not  appearing  in  the 
original  statement.  The  opinion  does  nut 
state  specifically  whether  the  application  to 
amend  was  made  before  or  after  the  expira- 
tion of  the  time  allowed  by  statute  for  fil- 
ing an  account  as  the  commencement  of  legal 
process  to  establish  a  lien,  but  it  may  be  rea- 
sonably presumed  that  it  was  after;  for  oth- 
erwise the  petitioner  might  have  filed  a  new 
account  and  raised  the  same  question  which 
we  are  now  discussing. 

The  respondent  further  claims  that  the 
filing  of  the  first  account  on  January  6,  1916, 
was  the  commencement  of  legal  process,  and 
that  within  20  days  thereafter  the  petitioner 
was  bound  to  file  his  petition  in  equity  in  the 
superior  court  end  failing  to  do  so  lost  his 
lien.  The  petitioner,  on  the  other  hand, 
claims  that  he  is  not  limited  under  section 
7  of  chapter  257  to  the  filing  of  one  account, 
but  that  he  can  file  other  accounts,  waiviiig 
and  abandoning  all  former  ones,  provided  the 
last  account  is  filed  within  the  time  limited 
for  the  commencement  of  legal  process  and 
his  petition  to  enforce  the  lien  is  filed  within 
20  days  thereafter. 

It  la  apparent  that  the  first  three  accounts 
filed  by  the  petitioner,  for  one  reason  or  an- 
other, were  defective.  The  fourth  account 
was  filed  within  the  required  time,  and  the 
fact  that  the  petitioner  proceeded  further  in 
the  establishment  of  his  lien  upon  the  fourth 
account  only  is  evidence  of  an  intention  upon 
his  part  to  abandon  all  accounts  previously 
filed. 

To  say  that  the  petitioner  must  stand  upon 
the  first  account  filed,  however  defective  it 
may  later  be  discovered  to  be,  and  that  he 
cannot  abandon  it  and  file  another  account 
within  the  statutory  period,  would,  in  our 
opinion,  be  Inflicting  upon  a  petitioner  an  un- 
necessary and  unwarranted  hardship  which 
the  statute  neither  requires  nor  contemplatt>s. 

The  respondent  argnes  that  after  the  fil- 
ing of  the  first  account  innocent  parties 
might  reasonably  Infer  that  the  full  amount 
of  the  claim  bad  been  disclosed,  and  thus  be 
led  into  dealing  with  the  estate  to  their  dis- 
advantage should  the  filing  of  a  later  account 
be  permitted.  We  do  not  see  any  great  force 
in  this  argument  The  statute  fixes  a  x>eno<l 
within  which  proceedings  may  be  instituted 
for  the  establishment  of  Hens,  and  one  who 
deals  with  the  estate  before  its  expirati>>n 
must  do  so  at  his  peril. 

The  appeal  of  the  petitioner  is  sustained, 
the  decree  of  the  superior  court  denying  and 


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dUnilssiiig  the  petition  la  reversed,  and  the 
cause  is  remanded  to  the  superior  court,  with 
direction  to  enter  a  decree  establishing  the 
Hen  of  the  petitioner  upon  the  estate  of  the 
respondent  described  In  the  petition  for  the 
sum  of  $32.68. 


KINGSTON  V.  WII/SON.    (No.  6084.) 
(Supreme  Coart  of  Rhode  Island.    July  6, 1917.) 

Gart^ishment  «=»5e  —  Pbopebtt  Subject— 

Deposits. 
Wherp  it  appeared  that  none  of  the  mone; 
deposited  with  tlie  garnishee  trust  company  in 
the  account  of  defendant  as  agent  belonged  to 
him,  but  was  wholly  the  money  of  liia  principal, 
the  garnishee  was  not  chargeable. 

[Ed.  Note. — For  other  cases,  see  Garnishment, 
Cent  Dig.  {§  110,  111.] 

Exceptions  from  Superior  Court,  Prov- 
idence and  Bristol  Oounties;  CThester  W. 
Barrows,  Judge. 

Action  by  James  E:ingston  against  Bobert 
H.  Wilson.  PlaintifTs  motion  to  charge  the 
garnishee  was  denied,  and  he  excepts.  Ex- 
ception overruled,  and  case  remitted. 

John  P.  Beagan,  of  Providence,  for  plain- 
tiff. Benjamin  W.  Grim,  of  Providence,  for 
defendant. 

PER  CURIAM.  This  is  an  action  of  debt 
■on  Judgment.  The  ease  is  before  us  on  plaln- 
tlfTs  exception  to  the  ruling  of  a  Justice  of 
the  superior  court  denying  the  plaintiff's 
motion  to  charge  the  garnishee. 

According  to  the  affidavit  filed  by  the  In- 
dustrial Trust  Company,  garnishee  in  the 
case,  it  appears  that  at  the  time  of  the  at- 
tachment made  under  the  direction  contained 
III  the  writ,  there  was  in  the  hands  and  pos- 
session of  said  garnishee  $289.12  standing  in 
the  name  of  the  defendant  as  agent ;  that  the 
defendant  had  stated  to  the  garnishee  that 
he  was  the  agent  of  Colgate  &  Co.  From  the 
uncontradicted  evidence  given  at  hearing  be- 
fore said  Justice  on  the  plaintiff's  motion  to 
charge  the  garnishee  It  appeared  that  the 
defendant  was  the  manager  "for  the  district 
here"  of  Colgate  &  CJo.,  an'd  was  charged 
with  the  duty  of  directing  the  work  of  the 
salesmen  employed  by  said  (Colgate  &  Co.; 
that  there  were  about  17  men  employed  by 
Colgate  &  Co.  under  the  direction  of  the  de- 
fendant; that  none  of  the  money  deposited 
in  said  account  of  "Bobert  Wilson,  Agent," 
belonged  to  the  defendant,  but  was  wholly 
the  money  of  Colgate  &  Co.  In  view  of  these 
facts,  which  said  Justice  found  to  be  true, 
we  are  of  the  opinion  that  there  is  no  error 
In  the  action  of  the  superior  court  denying 
the  motion  to  charge  the  garnishee. 

Plaintiff's  exception  is  overruled ;  the  case 
is  remitted  to  the  superior  court  for  further 
proceedings. 


(40  B.  I.  437) 
STATE  V.   McAVOY  (two  cases). 
(Nos.  4948,  4949.) 

(Supreme  (Tourt  of  Rhode  Island.    July  8, 1917.) 

L   EUBBZZLEUBNT     4=>38— EVIDENCE— ADUIS- 
SIBILITT. 

In  a  prosecution  for  embezzlement  by  an 
agent  in  charge  of  selling  and  delivering  flour, 
evidence  as  to  instructions  given  defendant  by 
his  predecessor  as  to  his  duties  in  maidng  re- 
ports, collections,  and  deposits  was  admissible. 
[Ed.  Note. — For  other  cases,  aee  Embexzle- 
ment,  Cent  Dig.  {i  61,  65,  66.] 

2.  Cbiuinal    Law    «=>1169(1)  —  Revikw  — 
Eabmless  Ebbob. 

In  a  prosecution  for  embezzlement  by  an 
agent  intrusted  with  the  duty  of  selling  and  de- 
livering flour,  admission  of  slips  showing  deliv- 
eries of  flour  tnr  the  warehouse  company  and  of 
an  inventorjr  oi  flour  kept  therein  made  by  its 
bookkeeper,  if  error,  held  harmless. 

[Ed.    Note. — For   other   cases,    see   Criminal 
Law,  Cent  Dig.  {{  3180,  3137.] 

3.  EvBEZZtxuKNT    «=»38— EVIDENCE— Anins- 

BIBILITT. 

In  a  prosecution  for  embezzlement  of  the 
proceeds  of  flour  sold  and  delivered  by  an  agent 
testimony  by  the  bookkeeper  of  the  warehouse 
wherein  the  flour  was  kept  as  to  the  number  of 
barrels  on  hand  as  shown  by  the  report  of  the 
defendant  to  the  milling  company  was  admissi- 
ble. 

[Eld.   Note. — For   other  cases,    see   Embezzle- 
ment, Cent  Dig.  §}  61,  65,  66.] 

4.  Embezzlement   9=344(5)  —  Defenses— Del 
Cbedebe. 

In  a  prosecution  for  embezzlement,  evidence 
held  not  to  show  that  defendant  was  a  del  cre- 
dere factor. 

[Ed.   Note. — For  other   cases,   see   Embezzle- 
ment Cent  Dig.  S  70.] 

5.  Embezzlement    4=914  —  Defenses  —  Dn. 

Ckedebe  Factobs. 
That  an  agent  charged  with  eml>ezzlement 
was  a  del  credere  factor  of  his  principal  consti- 
tutes no  defense ;  such  relation  not  changing  the 
ordinary  one  existing  between  himself  and  his 
principal  within  Gen.  Laws  1900,  c.  345,  §  16, 
providing  tljat  every  officer,  agent,  clerk,  or  serv- 
ant who  shall  embezzle  property  which  shall 
have  come  into  his  possession  b^  virtue  of  his 
employment  shall  be  deemed  guilty  of  larceny. 

[Ed.   Note.— For   other  cases,  see   Embezzle- 
ment Cent  Dig.  {§  13-16.] 

6.  Embezzlement  9=33&— Evidencb— Matebi- 
ality— Pbivileqkd  Communications. 

In  a  prosecution  for  embezzlement,  it  was 
not  error  to  exclude  as  immaterial  correspond- 
ence received  by  the  state  board  of  tax  commis- 
sioners offered  on  the  question  as  to  whether  the 
employer,  a  company  incorporated  in  another 
state,  had  been  doing  business  in  this  stnte,  since 
under  Pub.  Laws  1912,  c.  769,  §  15,  such  in- 
formation could  not  be  divulged  except  upon 
order  of  the  court. 

[Ed.   Note.— For   other   cases,   see   Embezzle- 
ment, Cent.  Dig.  |S  W,  65,  66.] 

7.  Embezzlement  *5s>48(1)  —  Instbuotions — 
Appbopkiation  of  Propebtt. 

In  a  prosecution  for  embezzlement,  it  was 
not  error  to  instruct  that  the  ownership  of  the 
floor  the  proceeds  of  which  were  alleged  to  have 
been  embezzled  was  controlling  as  to  defendant's 
rights  thereto. 

[EM.   Note.— For   other   cases,   see   Embezzle- 
ment, Cent  Dig.  Si  72,  75.] 


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8.  Bmbezztbuent    «=»44(1)— Evidence— Stnr- 

KCIENCT. 

In  a  prosecution  for  embezzlement,  evidence 
\eld  to  warrant  a  finding  of  guilty. 

[HJ.  Note. — For  other  cases,  see  Embezzle- 
ment, Cent  Dig.  S{  67,  70.] 

Exceptions  from  Superior  Court,  Ptot- 
Idence  and  Bristol  Counties;  George  T. 
Brown,  Judge. 

Harry  A.  McAvoy  was  convlcte'd  of  em- 
bezzlement, and  he  brings  exceptions.  Ex- 
ceptions overruled. 

Herbert  A.  Bice,  Atty.  Gen.  (Claude  E. 
Branch,  of  Providence,  of  counsel),  for  the 
State.  Fitzgerald  &  Blggius  and  Peter  M. 
O'Beilly,  all  of  Providence,  for  defendant. 

VINCENT,  J.  In  December,  1914,  the 
grand  jury  for  Providence  county  presented 
two  indictments  against  the  defendant  for 
embezzlement.  To  each  of  these  indictments 
the  defendant  plea'ded  not  guilty  and  was  re- 
leased on  bail.  The  two  cases  were  tried 
together  in  the  superior  court.  The  defend- 
ant moved  to  be  discharged  at  the  conclu- 
sion of  the  testimony  offered  on  behalf  of 
the  state.  The  motion  was  'denied.  The  Jury 
returned  a  verdict  of  guilty  as  charged  in 
each  indictment,  each  being  for  the  em- 
bezzlement of  an  amount  exceeding  $500. 
The  defen'dant  filed  a  motion  for  a  new 
trial,  upon  the  usual  grounds,  which  was 
denied  by  the  trial  court. 

The  case  Is  now  before  us  upon  the  defend- 
ant's exceptions  covering  the  denial  of  his 
motion  for  discharge;  to  various  rulings 
during  the  trial  as  to  the  admissibility  of 
evidence;  to  certain  portions  of  the  charge 
of  tlie  court;  and  to  the  denial  of  the  motion 
for  a  new  trial.  The  defendant's  exceptions 
are  58  In  number,  but  we  are  advised  by 
his  brief  that  he  relies  only  upon  exceptions 
numbered  1,  2,  3,  32,  33,  34,  30,  53,  54,  57, 
and  58. 

The  indictment  No.  8269,  now  before  us 
on  exceptions  No.  4948,  charges  the  defend- 
ant, Harry  A.  McAvoy,  on  the  1st  day  of 
January,  1914,  at  Providence — 
"being  then  and  there  the  clerk  and  agent  of 
the  Bay  State  Milling  Company,  a  corporation, 
did  then  and  there  by  virtue  of  his  said  employ- 
ment have,  receive,  and  take  into  his  possession 
money  to  a  large  amount,  to  wit,  to  the  amount 
of  $1,368.87,  and  of  the  value  of  $1^68.87,  of 
the  property  and  money  of  the  said  Bay  State 
Millmg  Company,  a  corporation  as  aforesaid,  the 
said  Hiury  A.  McAvov's  employer,  and  the  said 
Harry  A.  McAvoy  tne  said  money  then  and 
there  feloniously  did  embezzle  and  fraudulently 
convert  to  his  own  use,  without  the  consent  of 
the  said  Bay  State  Milling  Company,  a  cor- 
poration as  aforesaid,  the  said  Harry  A.  Mc- 
Avoy's  said  employer,  whereby  and  by  force  of 
the  statute  in  such  case  made  and  provided  the 
5aid  Harry  A.  McAvoy  is  deemed  guilty  of 
larceny,"  etc. 

The  Indictment  No.  8270,  now  before  us 
on  exceptions  No.  4949,  Is  Identical  with  the 
one  above  referred  to,  with  the  exception  of 
the  date  of  the  embezzlement,  which  Is  stated 


[  on  July  1, 1914,  and  the  amount  embezzled  as 
!  $2,834.30. 

The  defendant,  covering  the  periods  of  the 
alleged  embezzlements,  was  In  the  employ  of 
the  Bay  State  MilUng  Company  a  corporation 
created  under  the  laws  of  the  state  of  Min- 
nesota an'd  having  its  principal  office  in  the 
city  of  Boston,  Mass.  All  the  dealings  of  the 
defendant  were  with  this  office.  The  defend- 
ant was  hired  by  the  president  of  the  com- 
pany, Bernard  J.  Rothwell,  and  his  assist- 
ant, Ernest  C.  Harris,  and  commenced  work 
for  said  company  In  April  or  May,  1913.  His 
duties  were  to  sell  flour  In  Providence  and 
vicinity  and  to  collect  the  proceeds  of  such 
sales.  During  his  earlier  employment  by  the 
milling  company  he  perform^  these  duties 
for  a  stated  salary  of  $70  per  month  and  an 
allowance  for  expenses,  both  of  which  were 
paid  by  the  checks  of  the  milling  company. 

Upon  assuming  his  duties  the  defendant 
was  Instructed  to  conduct  the  business  In  the 
same  manner  in  which  It  had  been  conducted 
by  his  predecessor,  Pay  G.  Hicks.  In  com- 
pliance with  such  Instructions,  the  defend- 
ant submitted  himself  to  the  tutelage  of 
Hicks  for  a  period  of  about  a  week,  receiv- 
ing from  him  minute  directions  as  to  the 
method  of  conducting  the  business  and  being 
introduced  by  him  to  various  customers. 

The  Instructions  given  to  the  defendant  by 
Hicks  were  that  each  sale  was  to  be  report- 
ed to  the  milling  company  by  sending  to  Its 
office  In  Boston  a  duplicate  or  carbon  copy  of 
the  invoice  slip  on  the  day  of  the  sale,  and  a 
weekly  report,  including  an  account  of  the 
stock  on  hand  at  the  warehouse  and  a  list  of 
the  collections.  The  milling  company  fur- 
nished to  the  defendant  a  pad  of  lnv<dce 
slips,  numbered  consecutively,  there  bdng 
four  copies  to  each  number,  distinguishable 
from  each  other  by  the  color  or  character  of 
the  paper.  The  original  or  white  slip  was  to 
be  kept  by  tlie  defendant;  the  blue  slip  to  be 
sent  to  the  customer ;  the  slip  of  tissue  paper 
was  to  be  forwarded  to  the  office  of  the  mill- 
ing company  In  Boston;  and  the  pink  slip 
was  not  required  under  the  arrangement 
with  the  defendant  Printed  blanks  for  the 
weekly  reports  were  also  furnished  to  the  de- 
fendant by  the  milling  company  which  were 
designed  to  show,  when  pr<^;>erly  filled  out,, 
the  number  of  barrels  of  fiour  received  dur- 
ing the  week ;  an  Itemized  list  of  the  number 
of  barrels  delivered  to  customers  from  the 
wardiotise;  the  number  of  barrels  remain- 
ing In  the  warehouse;  and  an  Itemized  list 
of  all  amounts  collected  from  customers.  As 
soon  as  the  defendant  collected  the  proceeds 
of  sales,  either  In  money  or  by  check,  he  was 
to  deposit  the  same  In  the  Merchants'  Na- 
tional Bank  in  Providence  In  the  name  of  the 
milling  company  and  report  the  same  by 
sending  to  the  milling  company  a  copy  of 
the  deposit  slip. 

On  November  1,  1913,  a  further  arrange- 


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nent  was  made  between  the  defendant  and 
the  nulling  company  whereby  tbe  defendant 
should  thereafter,  instead  of  receivlDg  a 
fixed  salary,  be  paid  a  commission  of  35 
cents  for  every  barrel  of  flour  sold  by  him,  he 
iMiying  bis  own  expenses,  the  expenses  of 
i>toriug  and  carting  the  flour  in  Providence 
and  the  guaranteeing  of  all  accounts.  This 
iirrangemout  does  not  appear  to  have  modi- 
fied, or  to  have  been  intended  to  modify,  the 
previous  Instructions  given  to  defendant  as 
to  r^iorts,  collections,  and  deposits.  In  car- 
rying out  this  additional  arrangement  the  de- 
fendant was  paid  $16  a  week  in  advance  on 
account  of  commissions.  The  balance  due  the 
defendant  on  account  of  commissions  was 
paid  to  him  from  time  to  time  by  check  from 
the  milling  company,  and  he  was  not  permit- 
ted to  deduct  such  commissions  from  his  col- 
lections. Later,  the  milling  company  becom- 
ing dissatlsfled  with  the  defendant's  dilatorl- 
iiess  in  collecting  the  accounts,  a  further  ar- 
rangement vras  made  between  the  parties, 
tiilktng  effect  in  March,  1914,  whereby  the  de- 
fendant was  to  be  charged  interest  on  all  ac- 
counts which  were  not  collected  within  45 
days. 

During  the  sununer  of  1014  there  were 
some  negotiations  between  the  defendant  and 
the  milling  company  looking  to  some  arrange- 
ment whereoy  the  defendant  should  buy  the 
Hour  tTom  the  milling  company  and  sell  it  on 
Ills  own  account,  and  on  October  9,  1914,  the 
defendant  wrote  to  the  milling  company  that 
by  the  next  month  he  hoped  to  "buy  the  busi- 
ness ootrigbt."  This  arrangement  was  never 
completed,  and  the  defendant  admitted  at 
the  trial  that  this. letter  waa  written  merely 
for  the  purpose  of  gaining  time. 

The  milling  company  shipped  the  flour  in 
Its  own  name  to  a  warehouse  in  Providence. 
None  of  the  flour  waa  ever  consigned  or 
charged  to  the  defendant,  and  the  defend- 
ant's name  did  not  appear  in  the  shipment. 
.\11  the  bills  scut  by  the  defendant  to  pur- 
chasers of  flour  were  in  the  name  of  the 
milling  oomi>ain7,  a  notice  being  stamped 
thereon  requesting  remittance  to  "liarry  A. 
McAvoy,  Agt"  The  defendant  also  in  the 
transaction  of  the  business  used  stationery 
which  was  headed  "Bay  State  Milling  Com- 
pany." The  defendant  was  given  no  author- 
ity to  make  prices  on  his  own  account,  and 
letters  and  bills  were  sent  direct  to  delin- 
quent customers   by   the  milling    company. 

The  defendant  undertook  and  purported  to 
randuct  the  business  in  .accordance  with 
these  arrangements.  He  sent  to  the  milling 
company  duplicate  invoice  slips  and  copies 
of  deposit  slips  and  a  weekly  report  in  the 
form  heretofore  described. 

The  evidence  shows  that  the  defendant 
made  sales  and  deliveries  which  he  never  re- 
ported to  the  milling  company,  and  that  he 
made  collections  which  he  did  not  deposit  in 
the  Merchants'  National  Bank  or  report  to 
the  milling  company,  but  appropriated  the 
same  to  his  own  use.     There  is  evidence 


showing  the  methods  resorted  to  by  the  de- 
fendant tai  concealing  from  the  milling  com- 
pany that  he  was  obtaining  money  which  be 
did  not  report ;  that  he  omitted  to  report  to 
the  company  certain  collections  which  he 
had  made  am  deliveries  reported;  that  he 
omitted  to  report  certain  sales  and  deliv- 
eries; that  he  would  deliver  flour  to  two 
different  ctistomers  under  invoices  of  the 
same  nimiber  and  report  but  one  of  these 
deliveries  to  the  company,  sending  the  white 
slip  to  one  customer  and  the  blue  slip  of  the 
same  number  to  another  customer  instead 
of  retaining  either  for  himself,  and  cm  the 
tissue  slip  of  the  same  number  send  to  the 
company  a  r^>ort  of  only  one  of  the  sales. 

The  defendant  admitted  that  in  one  in- 
stance he  iiad  intentionaily  concealed  from 
the  mUling  company  one  sale  and  collection 
auK>unting  to  $85,  but  he  testified  that  his 
failure  to  report  other  collections  to  the  num- 
ber of  a  dozen  or  more  was  due  to  forget- 
fulness. 

The  defendant  Iiad  been  instructed  to  de- 
posit all  collections  to  tiie  account  of  the  mill- 
ing company  in  the  Merchants'  National 
Bank  and  send  the  milling  company  a  copy 
of  each  deposit  slip;  and,  according  to  the 
testimony  of  the  otflcers  of  the  milliug  com- 
pany, the  defendant  had  no  authority  to  in- 
dorse any  check  made  out  to  the  order  of  the 
milling  company  or  to  deal  with  either  money 
or  checks  received  in  payment  of  flour  ex- 
cept to  deposit  the  same  to  the  account  of  the 
milling  company  in  the  Merchants'  National 
Bank.  The  testimony  shows,  however,  that 
several  checks  made  out  to  the  order  of  the 
milling  company  were  deposited  by  the  de- 
fendant to  his  own  account  in  the  Industrial 
Trust  Company  of  Providence,  the  defendant 
indorsing  them  "Bay  State  Milling  Company. 
Harry  A  McAvoy,  Agent,"  and  that  the 
amounts  represented  by  such  checks  were 
never  reported  to  the  milling  company  as  col- 
lections. 

In  July,  1914,  the  mUling  company  wrote 
to  the  warehouse  in  Providence  in  which  the 
flour  was  stored  requesting  an  inventory  of 
the  flour  of  the  milling  company  then  in  Its 
possession.  The  defendant,  visiting  the  otflce 
of  the  warehouse  company  and  seeing  the  let- 
ter requesting  an  inventory,  told  the  repre- 
sentatives of  the  warehouse  company  that  be 
would  take  care  of  that  matter,  and  accor  1- 
Ingly  prepared  an  Inventory  on  a  sheet  of 
letter  paper  headed  with  the  name  of  the 
warehouse  company,  which  paper  had  In 
some  unexplained  manner  come  into  the  de- 
fendant's possession.  Tbe  inventory  thus 
prepared  by  the  defendant  was  typewritten 
and  without  signature.  There  was  nothing 
upon  it  to  indicate  that  it  was  not  compiled 
by  employ^  of  the  warehouse  company.  The 
amounts  ^ven  in  this  inventory  correspond- 
ed with  those  given  by  the  defendant  in  his 
reports,  but  exceeded  by  about  300  barrels 
the  amount  of  flour  which  was  actually  in 
the  bands  of  the  warehouse  company. 


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The  defendant  made  some  explanation  of 
this  matter  of  the  Inventory  to  the  effect 
that  an  employe  of  the  warehouse  company 
asked  him  to  make  out  the  Inventory  and 
that  be  copied  the  fiii^ures  from  his  previous 
reports.  Although  the  milling  company  later 
wrote  to  the  defendant  referring  to  this  re- 
port as  the  report  of  the  warehouse  com- 
pany, the  defendant  did  not  advise  the  mill- 
ing company  that  such  report  had  beai  made 
by  himself. 

There  was  also  testimony  that  on  Novem- 
ber 14,  1914,  the  milling  company  was  noti- 
fied by  the  Merchants'  National  Bank  that  its 
account  was  overdrawn.  Tills  turned  out  to 
be  due  to  the  fact  that  the  defendant  had 
deposited  In  that  bank  a  check  against  his 
own  account  In  the  Industrial  Trust  Com- 
pany which  did  not  prove  to  be  good.  Mr. 
Harris  of  the  milling  company  came  to  Provi- 
dence and  telephoned  the  defendant  that  he 
would  like  to  see  him  at  the  Narragansett 
Hotel.  Harris  testifies  that  defendant  stated 
to  him  over  the  telephone  that  he  would  be 
at  the  hotel  in  a  few  minutes.  The  defend- 
ant, however,  went  to  New  London,  Conn. 
Harris,  after  waiting  for  a  time,  telephoned 
the  defendant's  father,  who  in  turn  tele- 
phoned the  defendant  at  New  London,  sug- 
gesting to  the  defendant  that  he  return  to 
Providence,  and  he  accordingly  came  back 
the  next  day.  The  defendant,  however,  testi- 
fies that  he  told  Harris  over  the  tele];dione 
that  be  had  made  arrangements  to  go  to  the 
southern  part  of  the  state  to  see  prospective 
customers  and  could  not  see  him  that  day. 
On  cross-examination  the  defendant  admitted 
that  he  had  never  before  solicited  business 
in  Westerly,  and  that  he  could  not  remember 
the  name  of  a  single  person  upon  whom  he 
called.  He  said  that  he  went  to  New  London 
because  there  was  no  decent  hotel  In  Wester- 
ly where  he  could  spend  the  night  The  de- 
fendant further  admitted  on  cross-examina- 
tion that  he  knew  nothing  whatever  about 
the  hotels  at  Westerly,  and  bad  no  reason 
whatever  for  being  dissatisfied  with  them. 
Witnesses  for  the  state  testified  that  the  de- 
fendant admitted  at  the  start  that  he  had 
gone  to  Connecticut  because  he  was  afraid  to 
face  Harris;  that  he  had  appropriated  money 
collected  to  the  extent  of  some  $6,000,  In- 
cluding about  $2,000  of  the  sales  which  he 
had  not  reported  to  the  milling  company; 
that  he  had  made  out  a  false  inventory  on 
the  letter  paper  of  the  warehouse  company, 
and  that  he  bad  paid  out  most  of  the  money 
which  he  had  taken  to  make  up  for  losses  In 
speculating  in  wheat;  that  the  defendant, 
without  making  any  attempt  to  Justify  the 
taking  of  the  money,  told  the  representatives 
of  the  company  that  they  could  put  him  in 
Jail  if  they  wanted  to,  and  when  arrested  by 
Inspector  Maguire  he  said  he  had  been  a 
fool  to  give  up  his  ledger  to  the  company. 
In  October,  1914,  in  answer  to  some  com- 
plaints of  the  milling  company  that  he  was 
behind  In  the  collection  of  his  accounts,  the 


defendant  wrote  to  the  milling  company  that 
in  a  few  weeks  an  estate  In  which  he  was  in- 
terested would  be  settled,  and  that  he  would 
then  have  the  money  to  remit,  but  he  admit- 
ted on  cross-examinati«i  that  this  story  was 
a  falsehood,  and  that  there  was  no  such  estate. 

The  only  exceptions  pressed  by  the  defend- 
ant, as  stated  in  his  brief,  are  those  number- 
ed, 1,  2,  3,  32,  33,  34,  36,  63,  54,  57,  and  58. 

[1]  The  defendant's  exceptions  1,  2,  and  3 
relate  to  the  admission  of  certain  testimony 
of  EViy  C  Hicks.  Hicks  was  the  predecessor 
of  the  defendant  as  the  Providence  agent  of 
the  milling  company.  The  defendant  was 
told  to  get  from  Hicks  instructions  as  to  the 
method  of  carrying  on  the  business.  The  de- 
fendant went  to  Hicks,  and  Hicks  spent  the 
greater  part  of  a  week  In  giving  him  Instruc- 
tions as  to  making  and  reporting  sales  and 
collections  and  also  taking  him  to  Interview 
customers.  The  defendant  objected  to  the 
testimony  of  Hicks  in  reference  to  the  in- 
structions he  gave  to  the  defendant  on  the 
ground  that  such  instructions  were  given  in 
April,  1913;  that  the  contract  under  which 
he  was  then  employed  by  the  milling  com- 
pany ended  in  November,  1913,  previous  to 
the  embezzlement  set  forth  in  the  indictment ; 
and  that  the  arrangements  from  November  1, 
1013,  to  the  conclusion  of  his  dealings  with 
that  company  were  very  different,  and  it  was 
immaterial  what  the  arrangements  were  prior 
to  1914,  the  time  laid  in  the  indictment. 

We  do  not  think  that  the  contract  between 
the  defendant  and  the  milling  company  can 
be  said  to  have  ended  In  November,  1913. 
The  contract  was  added  to  or  modified  la 
some  respects  at  that  time,  but  such  additions 
or  modifications  did  not  relate  to  the  reports, 
collections,  and  deposits  which  the  defend- 
ant was  instructed  to  make  and  under  which 
instructions  he  undertook  to  act 

The  modifications  referred  to  related  to 
the  defendant's  compensation,'  the  guarantee- 
ing of  accounts,  and  to  the  payment  of  in- 
terest on  accounts  after  the  same  had  been 
overdue  for  a  certain  period.  The  duties  of 
the  defendant  in  the  matter  of  reports,  collec- 
tions, and  deposits  were  those  given  to  him 
by  Hicks  at  the  instance  of  the  milling  com- 
pany, and  we  think  that  sudi  testimony  was 
properly  admitted,  and  that  the  defendant's 
exceptions  1,  2,  and  3  must  be  overruled. 

The  defendant's  exceptions  32,  38,  and  34 
relate  to  the  same  matter,  and  may  be  con- 
sidered together. 

In  July,  1914,  the  milling  company  wrote  to 
the  warehouse  company  for  an  Inventory  of 
the  fiour  on  hand.  This  Inventory,  as  before 
stated,  was  made  up  by  the  defendant  type- 
written upon  the  letter  paper  of  the  ware- 
house company,  was  without  signature,  and 
bore  no  indication  that  it  emanated  from  the 
defendant  It  was  s«it  by  the  defendant  to 
the  milling  company  purporting  to  be  a  cor- 
rect statement  by  the  warehouse  company  of 
the  amount  of  flour  on  hand.  The  state,  in 
its  endeavor  to  show  the  falsity  of  this  state- 


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U3 


ment  and  that  the  amount  of  flonr  In  the  pos- 
«Gsion  of  the  milling  company  was  much 
less  than  that  represented  In  the  report,  of- 
ffered  In  evidence  an  Inventory  of  the  flour  in 
the  hands  of  the  warehouse  company  on  July 
30, 1914,  made  up  by  the  bookkeeper  of  that 
company.  In  making  such  Inventory  the 
bookke^ier  started  with  the  balance  of  flour 
as  shown  by  the  inventory  of  the  month  pre- 
ceding, and  deducted  therefrom  the  deliveries 
during  the  month  as  reported  to  him  hy  the 
teamers.  These  reports  of  the  teamers  were 
made  from  time  to  time  upon  slips  used  for 
that  purpose  which  were  filed  in  the  office  of 
the  warehouse  company.  Some  of  these  slips 
were  oflfered  in  evidence  in  verification  of  the 
inventory  of  the  bookkeeper.  Another  em- 
ploye of  the  warehouse  company  testified 
that  he  actually  counted  the  stock  of  flour  on 
hand,  and  found  that  his  flgures  corresponded 
with  the  flgures  of  the  Inventory  made  by  the 
bookkeeper.  Besides  this,  Mr.  Harris  of  the 
mining  company  counted  the  barrels  of  flour 
on  hand  in  the  warehouse  and  found  a  short- 
age of  575  barrels. 

[2]  The  defendant  contends  that  the  intro- 
duction of  the  slips  referred  to  showing  de- 
liveries of  flonr  made  by  the  teamers  of  the 
warAoose  company  and  the  introduction  of 
the  inventory  of  flour  made  therefrom  by 
the  bookkeeper  of  the  warehouse  company 
amounted  to  nothing  more  than  tiie  introduc- 
tion of  hearsay  evidence,  the  admission  of 
which  was  error.  The  apparent  purpose  of 
the  testimony  was  to  show  that  the  defend- 
ant had  deceived  the  milling  company  by 
conveying  to  that  company  a  false  report  of 
the  flonr  on  hand.  If  we  take  the  view  that 
the  admission  of  such  testimony  was  errone- 
ous, it  would  not  constitute  reversible  error 
in  view  of  the  fact  that  there  was  other  tes- 
timony establishing  the  falsity  of  the  defend- 
ant's inventory  which  he  did  not  dispute. 
The  defendant's  exceptions  82  and  33  must  be 
overruled. 

[3]  The  defendant's  exception  84  is  to  the 
ruling  of  the  court  allowing  the  bookkeeper 
of  the  warehouse  to  testify  as  to  the  number 
of  whole  barrels  of  flour  on  hand  as  shown 
by  the  reirart  of  the  defendant  made  to 
the  milling  company.  The  defendant  object- 
ed to  the  question  on  the  ground  that  the  is- 
sue was  not  the  embezzlement  of  flour.  We 
see  no  merit  in  this  exception.  The  number 
of  barrels  disposed  of  and  unaccounted  for 
by  the  defendant  would  naturally  form  a 
basis  for  ascertaining  the  amount  of  money 
covered  by  the  embezzlement  The  defend- 
ant's esceptlooQ  84  is  overruled. 

[4]  At  the  conclusion  of  the  testimony  for 
the  state  the  defendant  moved  that  he  be 
discbarged,  and  his  exception  Sd  is  to  the 
r^asal  of  the  trial  court  to  grant  that  motion. 
The  basis  of  this  motion  was  that  under  the 
facts  as  presented  the  defendant  was  a  del 
credere  fiictor,  and  that  the  relations  between 
himself  and  the  milling  company  were  simply 
those  of  debtor  and  creditor.  Passing  over 
101A.-8 


the  contention  of  the  state  that  the  disposi- 
tion of  such  a  motion  is  within  the  discretion 
of  the  court  and  is  not  the  subject  of  excep- 
tion, two  questions  present  themselves  for, 
consideration:  (1)  Was  the  relation  of  the 
defendant  with  the  milling  company  that  of 
del  credere  factor?  and  (2)  if  such  relation 
existed,  could  the  defendant  be  found  guil- 
ty of  embezzlement  under  the  indictments 
brought  against  him? 

In  determining  Uie  first  of  these  questions, 
we  must  consider  the  agreement  between  the 
parties  and  apply  thereto  the  familiar  rules 
of  construction,  all  of  which  are  subordinate 
to  the  leading  principle  that  the  intention  of 
the  parties  must  prevail  unless  inconsistent 
with  some  rule  of  law.  And  such  intention 
must  be  gathered  not  from  a  portion  or  por- 
tions of  the  contract  but  from  the  whole 
taken  together.  11  B.  a  L.  765;  1  Clark  & 
Skyles  on  Agency,  24. 

In  the  case  at  bar  the  flour  was  never 
consdgned  by  the  milling  company  to  the  de- 
fendant It  was  shipped  direct  to  the  ware- 
house in  Providence,  where  It  was  held  as 
the  property  of  and  in  the  name  of  the  mill- 
ing company  and  was  at  all  times  subject  to 
Its  orders.  The  defendant,  after  making  a 
sale  of  flour,  was  permitted  by  the  milling 
company  to  withdraw  from  Its  stock  in  the 
warehouse  a  sufficient  number  of  barrels  to 
All  the  order.  A  bill  was  rendered  to  the 
purchaser  In  the  name  of  the  milling  com- 
pany, there  being  stamped  upon  such  bill  a 
notice  to  pay  the  amount  due  thereon  to  the 
defendant  as  Its  agent  Upon  the  receipt  of 
the  money  the  defendant  was  obligated,  un- 
der his  contract  to  deposit  It  In  full  in  the 
Merchants*  National  Bank  to  the  credit  of  the 
milling  company  without  any  deduction 
therefrom  for  salary,  commission,  or  ex- 
penses. 

We  cannot  find  any  Intent  of  the  xmrties, 
dther  expressed  by  the  contract  itself  or 
by  the  methods  in  which  their  respective 
duties  under  It  were  discharged,  that  would 
warrant  us  in  drawing  the  conclusion  that  the 
defendant  was  acting  otherwise  than  as  the 
agent  of  the  milling  company. 

The  defendant  seems  to  place  much  reli- 
ance upon  the  fact  that  under  certain  condi- 
tions he  was  to  be  held  responsible  to  the 
milling  company  for  interest  upon  accounts 
overdue  for  a  certain  length  of  time,  and 
in  some  instances  for  the  payment  of  the 
principal  sum.  The  reason  for  this  arrange- 
ment is  quite  apparent  from  the  record.  The 
milling  company  had  expressed  its  dissatis- 
faction at  the  seeming  lndlffer«ice  of  the 
defendant  regarding  the  prompt  collection  of 
the  accounts  due  and  bis  want  of  care  In  the 
selection  of  responsible  customers.  The  ar- 
rangement was  donbtiess  made  for  the  pur- 
pose of  stimulating  the  defendant  to  look 
more  closely  after  the  collections  and  to  be 
more  careful  about  making  sales  to  irre- 
sponsible parties.    It  could  hardly  be  inferred 


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that  the  milling  company  waa  seeking  to  se- 
cure Itself  against  loss  through  the  liabilitr 
of  the  defendant,  who  does  not  appear  to 
hare  been  a  person  of  any  financial  standing. 

[5]  If  we  assume  that  the  defendant  was  a 
factor,  we  do  not  see  how  It  could  help  him 
in  the  pn>sent  case.  The  defendant  does  not 
deny  that  be  was  at  all  times  an  agent  of  the 
company,  nor  does  he  claim  that  he  had  any 
right  to  take  the  money  wlilch  he  appropriat- 
ed to  his  own  use.  A  factor  or  any  other 
agent  does  not  acquire  the  right  to  Iceep  and 
appropriate  to  his  own  use  the  money  which 
he  collects,  even  if  he  has  guaranteed  the 
account.  The  statute  (General  I/aws  1909,  c. 
;)45,  S  16)  Is  explicit,  and  provides  that: 

"Every  officer.  ap.pnt,  cleric,  or  servant  •  •  • 
who  shall  crabpiizle  or  fraudulently  convert 
•  •  *  any  money  or  otlior  property  which 
shall  have  come  into  bis  possession  or  shall  he 
under  his  care  or  charge  by  virtue  of  such  em- 
nloymont  *  •  »  shall  bo  deemed  guilty  of  i 
larceny." 

This  statute  has  been  interpreted  by  this 
court  In  State  v.  Tabenier,  14  R.  I.  272,  276, 
51  Am.  Hep.  382,  In  whlcli  case  the  court 
said: 

"The  obvious  meaning  is  that  any  agent  who 
has  money  in  hi.s  possession,  which  has  come 
into  his  possession  by  virtue  of  his  agency,  is 
punishable  under  the  statute  if  he  embezzles  or 
fraudulently  converts  it." 

The  defendant  argues  that  he  was  acting 
under  a  del  credere  commission :  that  the 
relations  between  himself  and  the  milling 
company  were  those  of  debtor  and  credi- 
tor, and  therefore  he  cannot  be  prosecuted 
for  embczzlemcut.  As  this  court  said  In 
Balderston  v.  National  Rubber  Co.,  18  R.  I. 
338,  347,  27  Atl.  507,  511  (49  Am.  St  Rep. 
772): 

"The  effect  of  the  commission  is  not  to  extin- 
guish the  relation  between  principal  and  f.ictor, 
bnt  applies  solely  to  a  guaranty  that  the  pur- 
chaser shall  pay." 

In  9  Am.  &  Eng.  Eiicyc.  (2d  Ed.)  183,  the 
law  on  this  subject  seems  to  be  well  sum- 
marized as  follows: 

"The  fact  that  an  agent  or  factor  is  acting 
under  a  del  credere  commiBsion  does  not  affect 
the  ordinary  relations  existing  between  him  and 
his  principal.  Save  for  the  additional  security 
affortled  the  principal,  their  reciprocal  rights, 
duties,  and  liabilities  remain  the  same.  •  •  • 
A  person  who  consigns  liis  goods  to  a  del  credere 
agent  for  sale  does  not  part  with  his  title.  He 
remains  the  owner  of  such  goods  nntil  sold;  and 
when  the  proceetls  of  the  sale  are  received  by 
the  agent  or  his  assignees,  they  belong  specifical- 
ly to  the  principal,  and  do  not  become  a  part  of 
the  agent  8  assets,  the  principal  being  an  ordi- 
nary creditor  for  the  amount." 

In  Wallace  v.  Castle,  14  Hun  (N.  Y.)  106, 
it  was  held  that  the  consignment  of  goods  to 
a  factor  acting  under  a  del  credere  commis- 
sion does  not  necessarily  destroy  the  fidu- 
ciary relation  existing  between  himself  and 
the  consignor,  and  that  when  he  Is  in  fact 
paid  by  the  debtor,  the  money  so  received  Is 
the  money  of  the  consignor  and  not  of  the 
factor,  and  for  a  conversion  thereof  the  lat- 
ter is  liable  to  arrest  The  court  in  its  opin- 
ion said: 


"The  defendant  was  a  factor,  and,  although 
entitled  to  del  credere  commission,  his  character 
was  not  changed.  His  responsibility  and  his 
compensation  were  enlarged,  hut  that  was  in 
fact  and  in  law  the  only  change  accomplished 
by  the  agreement  del  credere.  He  guaranteed 
the  payment  of  the  sum  for  which  the  goods 
were  sold,  but  his  liability  did  not  accrue  until 
the  purchaser  failed  to  pay.  In  this  case  the 
payment  was  made,  and  the  contract  of  liability 
therefore  occurring  through  the  del  credere  com- 
mission was  not  called  into  existence.  The  re- 
lation of  factor  continued  with  all  its  obligations 
and  burdens.  The  money  received  was  the  plain- 
tiff's money,  and  not  the  defendant's.  It  came 
from  the  plaintiff's  debtor,  and  should  have  been 
paid    to    the   plaintiff   as    his   fund.    *    *    » " 

This  case  goes  further  than  the  exigencies 
of  the  present  controversy  demand,  because 
the  consignment  was  there  made  to  the  fac- 
tor, while  In  the  case  at  bar  the  consignment 
was  made  to  the  warehouse  in  the  name  of 
the  milling  company.  See,  also,  Common- 
wealth V.  Smith,  129  Mass.  104 ;  Audenried  v. 
Betterley,  8  Alien  (Mass.)  302,  307 ;  Moore  v. 
HiUabrand,  37  Hun  (N.  Y.)  491;  Stanwood 
V.  Sage,  22  Cal.  516;  Thompson  v.  Perlslns, 
3  Mason,  232,  Fed.  Cas.  No.  13,972. 

The  case  o£  Leverlclt  v.  Meigs,  1  Cow.  (N. 
Y.)  (i45,  from  which  the  defendant  appears  to 
quote  in  his  brief,  although  the  apparent 
quotation  is  not  in  the  exact  language  of  the 
opinion,  seems  to  us  to  sustain  the  principle 
that  while  a  del  credere  agreement  may 
malce  the  agent  liable  in  the  event  of  the  pur- 
chaser's default  it  will  not  operate  to  de- 
prive the  principal  of  his  right  to  insist  up- 
on the  performance  of  the  agent's  duty  in 
other  respects.  The  court  in  its  opinion 
said: 

"The  only  difference  between  a  factor  acting 
under  a  del  cre<lere  commission  or  without  one 
is  as  to  the  sales  made.  In  the  former  case  he 
is  absolutely  liable,  and  may  correctly  he  said 
to  become  the  debtor  of  his  principal,  bnt  it  is 
not  strictly  correct  to  say  he  is  placed  in  the 
same  situation,  as  if  he  had  become  the  purchas- 
er himself;  for,  ns  we  have  seen,  the  principal, 
notwithstanding  this  liability,  may  exercise  a 
control  not  nllowabie  between  creditor  and  debt- 
or. When  the  principal  appears,  the  right  of  the 
factor  to  receive  payment  ceases.  This  shows 
that  the  effect  of  the  commission  is  not  to  ex- 
tinguish the  relation  between  principal  and 
factor,  but  applies  solely  to  a  g\iaranty  that  the 
purchaser  shall  poy." 

The  case  of  Gindre  v.  Kean,  7  Misc.  Rep. 
582,  28  N.  Y.  Supp,  4,  which  the  defendant 
cites,  seems  to  us  to  be  in  line  with  the  au- 
thorities to  which  we  have  already  referred. 
In  the  course  of  its  opinion  the  court  spealk- 
ing  of  the  defendant,  said: 

"That  he  was  answerable  for  the  purchase 
price  under  his  del  credere  agreement  in  the 
event  of  the  purchaser's  default  in  payment  did 
not  operate  to  deprive  bis  principals  of  the  right 
to  insist  upon  performance  of  his  duty  as 
factor." 

We  think  that  defendant's  exception  36 
must  be  overruled. 

The  defendant's  exception  53  does  not  seem 
to  us  to  possess  sufficient  merit  to  warrant 
particular  discussion. 

[•]  The  defendant's  exception  54  was  taken 
to  the  ruling  of  the  trial  court  sustaining  ai« 


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objection  to  the  introduction  of  any  corre- 
spondence received  by  the  state  board  of  tax 
commissioners.  The  objection  come  from  tbe 
Attorney  General  at  the  request  of  the  tax 
commissioners,  and  was  based  npon  the 
groand  that  all  information  In  possession  of 
such  commission  was  confidential,  and  that 
Its  disclosure  would  impede  its  workings. 
The  puriiose  of  the  particular  question  was 
to  ascertain  if  there  bad  been  any  corre- 
spondence between  the  Bay  State  Milling  Com- 
|iany  and  the  tax  commissioners  as  to  wheth- 
er said  company  was  doing  business  in  Rhode 
Island. 

Under  section  15,  c  769,  of  the  Public  laws 
of  1012,  this  information  could  not  be  di- 
vulged except  upon  the  order  of  the  conrt. 
It  would  be  the  duty  of  the  trial  court,  in 
the  exercise  of  its  discretion,  to  rule  out  the 
question  unless  it  should  appear  tliat  the  in- 
formation sought  was  material  to  the  de- 
fendant's case.  The  materiality  of  the  tes- 
timony was  not  apparent  to  the  trial  court, 
and  it  is  not  apparent  to  us.  We  thinlc  it 
was  properly  excluded.  So  far  as  appears, 
it  could  be  of  no  assistance  to  the  Jury  in 
determining  whether  or  not  the  defendant 
was  guilty  of  eml)ezzling  the  money  of  the 
milling  company. 

[7]  The  defendant's  exception  57  Is  as  fol- 
lows: 

"Also  will  your  honor  note  my  exception  to  the 
charge  of  the  court  in  which  the  court  stated 
that  the  ownership  of  the  flour  was  controlling 
"B  to  his  rights  to  the  proceeds." 

Supposing  the  exception  to  t>e  a  substantial 
statement  of  what  the  court  said  in  Its 
charge,  it  could  hardly  be  claimed  to  be  an 
erroucous  statement  of  the  law  ai)pllcabie  to 
the  ease.  If  the  flour  was  the  property  of 
the  defendant,  be  could  not  be  guilty  of  em- 
bezzlement. If,  on  the  other  hand,  the  flour 
was  the  property  of  the  milling  company, 
and  the  defendant  appropriated  the  pro- 
ceeds to  his  own  purposes,  when,  under  bis 
agreement,  he  was  bound  to  make  deposit 
thereof  in  the  Merchants'  National  Bank  to 
the  account  of  the  milling  company,  then  be 
woald  be  guilty  of  embezzlement,  and  in  that 
view  of  the  case  the  ownership  of  the  flour 
might  reasonably  be  said  to  be  controlling. 
An  examination  of  the  charge  of  the  court 
satisfies  ns  that  tbe  instructions  given 
amount  to  a  correct  statement  of  the  law. 
For  instance,  the  court  said: 

"So  you  see,  gentlemen,  that  it  is  necessary, 
in  order  to  establish  the  crime  charged  against 
the  defendant  here  of  embezzlement,  that  he 
»hoiUd  either  have  been  an  officer,  an  agent,  or 
clerk  or  servant,  or  a  person  to  whom  the  money 
was  intrusted,  of  the  Bay  State  Milling  Com- 
pany. That  is  the  reason  that  so  much  stress 
was  laid  upon  tbe  question  as  to  whether  or 
not  he  was  the  owner  of  this  business  and  car- 
rying on  bnsinesa  on  his  own  responsibility,  own- 
ing this  property,  or  whether  or  not  be  was  the 
ai;ent  of  the  Bay  State  Milling  Company,  and 
being  their  agent,  having  this  property  given 
into  his  hands  as  their  agent,  or  for  a  specific 
purpose,  embezzled  their  money.     If  it  was  his 


own  money,  he  could  not  embeszle  his  own  mon- 
ey. It  must  have  been  the  monev  tliat  came  into 
his  hands  as  the  agent,  etc.,  of  the  Bay  State 
Milling  Company.  What  the  evidence  is  uiKm 
that  point  you  nave  heard,  both  upon  his  side 
and  upon  the  side  of  the  prosecution,  and  you 
will  determine  for  yourselves  what  the  facts 
are."     • 

These  InstmctioDB  were  substantially  re- 
peated by  the  court  in  another  portion  of  the 
charge.  We  do  not  find  any  error  in  the 
charge,  and  defendant's  exception  57  must 
be  overruled. 

[I]  The  remaining  exception  68  is  to  the 
denial  of  the  defendant's  motion  for  a  new 
trial.  The  jury  has  found  the  defendant 
guilty,  and  the  trial  justice  who  saw,  beard, 
and  observed  the  witnesses  has  denied  the 
motion  for  a  new  trial,  and  has  found  that: 

"The  evidence  fully  warrants  the  finding  of 
the  jury  that  tbe  defendant  is  ^ilty  of  the 
crime  ol  embezzlement  as  charged  in  the  indict- 
ment" 

An  examination  of  the  whole  record  con- 
vinces ns  that  the  conclusion  of  the  trial 
court  in  denying  the  motion  for  a  new  trial 
was  correct  A  detailed  discussion  of  this 
exception  would  be  largely  and  substantially 
a  repetition  of  wliat  has  already  been  stated, 
and  would  therefore  be  unnecessary.  Excep- 
tion 58  must  be  overruled. 

All  of  tbe  defendant's  exertions  are  over- 
mled,  and  tbe  case  is  remitted  to  the  sa- 
perlor  court  for  sentence. 


.  (40  R.  I.  425) 

BUTLER  et  al.  v.  BUTLER  et  ai    (No.  393.) 

(Supreme   Court   of    Rhode    Island.      July    3, 
1017.) 

L  Wills  «=>028— Vested  Remaindee— Def- 
inition. 
Tbe  distinguishing  feature  of  a  vested  re- 
mainder is  that  there  shall  be  a  person  or  per- 
sons in  being,  ascertained  and  ready  to  take  pos- 
session when  the  preceding  estate  may  deter- 
mine, and  in  such  case  the  interest  vests  at 
once,  but  enjoyment  of  it  is  postponed. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  I  1460.] 

2.  Wills  ®=»628— Contingent  Reuaindxr— 
definition. 
In  the  case  of  a  contingent  remainder, 
whether  or  not  any  estate  shall  vest  in  either 
right  or  possession,  or  who  shall  take  it,  depends 
upon  a  future  contingency,  and  in  such  case  not 
only  the  time  of  enjoyment  but  the  right  to  en- 
joy is  uncertain. 

[Ed.  Note.— For  other  cases,  see  Wills,  (Tent 
Dig.  i  1460.] 
8.  Wills  ^=»62&— Vested  Reicaindes. 

The  law  favors  vesting,  and  will  not  regard 
a  remainder  as  contingent  in  the  absence  of 
very  decisive  terms  of  contingency,  unless  the 
provisions  or  Implications  of  the  will  clearly  re- 
quire it  and  words  expressive  of  future  time  are 
to  be  referred  to  the  vesting  in  possession,  if 
they  reasonably  can,  rather  than  to  tbe  vesting 
in  right. 

[Ed.  Note.— For  other  cases,  see  Wills,  (3ent. 
Dig.  SS  1461,  1462.] 

4.  Wills    «=»C34(18)  —  Constbcction  —  Re- 
main debs. 
Provision  in  a  will  creating  trust  to  termi- 
nate upon  tbe  death  of  testator's  wife,  and  when 


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a  son  named  shall  reach  the  age  of  28  years, 
with  remainder  over  to  testator's  children  in 
shares  stated,  created  a  vested  remainder,  since 
any  delay  between  the  happening  of  the  two 
events  wonld  not  postpone  the  vesting,  but  only 
the  enjoyment ;  there  being  persons  in  being 
at  the  time  of  the  testator's  death  ascertained 
and  ready  to  take  possession  whenever  the  pre- 
ceding estate  should  come  to  an  end. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {  1507.] 

0.  Wills  €=»C30  —  Combtbuctiok  —  Rei£ain- 

DEns. 
Where  a  will  created  a  vested  remainder  in 
children  of  the  testator  and  gave  a  daughter  a 
larger  share,  but  provided  that  if  the  daughter 
should  die  before  the  termination  of  the  trust 
the  shares  of  remaindermen  shall  be  equal  and 
her  share  will  go  to  her  children,  the  daughter 
took  a  vested  remainder  subject  to  being  de- 
creased in  case  she  died  before  the  termination 
of  the  trust,  and  each  son  took  a  vested  re- 
mainder subject  to  being  increased  in  case  of 
the  death  of  the  daughter. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {{  1514-1518.] 

6.  Wills  ®=>CS4(7)  —  Remaindeb  —  Cumula- 
tion OF  Income. 

Where  a  will  created  a  trust  terminating  up- 
on the  death  of  the  wife  and  when  a  named  son 
should  reach  the  age  of  28  years,  upon  the  death 
of  the  wife  before  the  son  reached  the  age  stated, 
the  accumulation  of  income,  which  would  have 
been  payable  to  the  wife,  should>be  paid  as  it 
accrues  to  the  vested  remaindermen,  tne  general 
rule  being  that  tlic  right  to  accumulations  of 
income  directed  by  will  may  be  vested,  and  the 
vested  right  will  attach  to  each  new  amount  as 
fast  aa  it  accumulates,  and  will,  in  general,  be 
either  vested  or  contingent  according  as  the 
gift  of  the  principal  is  vested  or  contingent 

[Kd.  Note. — B'or  other  cases,  see  Wills.  Cent 
Dig.  I  lC2o.] 

7.  Wills  «=>634(S)—Constbuction— Remain- 
debs. 

Where  a  will  created  a  vested  remainder  in 
two-iifths  of  the  corpus  in  a  daughter,  and  in 
contemplation  of  the  decease  of  the  daughter  on 
termination  of  the  trust  provided  that  the  "then 
trustee  shall  distribute  all  my  estate  equally, 
share  and  share  alike,  to  my  children,  their 
heirs,  administrators  and  assigns,  the  share  of 
any  deceased  child  to  go  to  the  heirs  of  the  body 
of  said  child,  if  any,  the  children  of  [the  daugh- 
ter], if  any,  to  take  their  mother's  share,"  upon 
the  death  of  the  daughter  before  the  termina- 
tion of  the  trust  her  children,  if  any,  would 
share  equally  with  three  sons  and  take  one- 
fourth  of  the  estate,  or  upon  her  death  prior 
to  the  termination  of  the  trust  without  issue 
the  corpus  should  be  divided  equally  between 
the  three  sons. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  §  1496.] 

8.  Wills    <S=>C86(1)— CoNBTBtronoN— Tbcsts. 

Where  a  will  created  a  trust  to  be  termi- 
nated upon  the  death  of  the  testator's  wife,  and 
when  a  named  son  should  reach  the  age  of  28 
years,  the  trust  would  terminate  upon  the  death 
of  the  son  before  reaching  the  age  of  28  years, 
and  after  the  death  of  the  wife,  and  the  corpus 
should  be  distributed  aa  of  the  date  of  his  de- 
cease. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §§  1631,  1633,  1637.] 

Certified  from  Superior  Court,  Providence 
and  Bristol  Couutlcs. 

Suit  by  Hayward  M.  Butler  and  others, 
trustees  under  the  will  of  John  J.  Butler, 
agaln.st  D.   Forrest  Butler  and  others.     On 


certificate  from  tbe  superior  court  Decree 
authorized  in  accordance  with  tbe  optnlcm. 

Gardner,  Plrce  &  Thomley,  of  Providence, 
for  complainants.  Ellsba  C.  Mowry,  of  Prov- 
idence, for  respondents  Bntler.  Fred  A.  Otis, 
of  Providence,  guardian  ad  litem,  pro  se. 

VINCE)NT,  3.  This  is  a  bUl  in  equity 
brought  in  the  superior  court  by  the  com- 
plainants as  trustees  under  tbe  will  of  John 
J.  Butler.  It  appearing  that  all  parties  In- 
terested, or  who  might  become  interested, 
were  represented,  and  that  the  only  questions 
of  law  raised  by  said  bill  iuvolTed  tbe  con- 
struction of  a  will,  tbe  cause  was  certified 
to  this  court  for  determination  under  section 
35,  chapter  289,  of  the  General  I^aws  of  1909. 
The  testator  died  May  22,  1916,  leaving  a 
widow,  Laura  E.  Butler,  and  four  children, 
Hayward  M.  Butler,  Nettle  B.  Rice,  tbe  com- 
plainants, and  D.  Forrest  Butler  and  Ward 
B.  Butler,  two  of  tbe  respondents.  By  the 
residuary  clause  of  the  will  tbe  testator  left 
a  considerable  amount  of  property  to  the 
complainants,  as  trustees,  with  directions  to 
pay  all  bis  debts  and  after  deducting  tbe  ex- 
penses of  tbe  trust  to  pay  tbe  net  Income  aa 
follows: 

"To  my  wife  during  her  life  three-fifths  and 
to  my  said  daughter  Nettie  during  her  life  two- 
fifths." 

Without  making  any  farther  provision  aa 

to  the  payment  of  income,  tbe  will  disposes 
of  the  principal  of  the  trust  estate  aa  fol- 
lows: 

"On  the  death  of  my  said  wife,  and  when  my 
said  son  Ward  shall  have  reached  the  age  of 
twenty-eight  years,  I  hereby  direct  and  em- 
power my  said  trustees  to  terminate  said  trust 
and  distribute  all  my  said  estate,  two-fifths  to 
my  said  daughter  Nettie  and,  one-fifth  each  to 
my  said  three  sons,  to  each  of  them,  their  heirs, 
administrators  and  assigns  forever,  free  from  ail 
trust  and  obligation,  giving  to  my  said  trustees, 
discretion  as  to  the  substance  and  manner  of 
such  distribution.  If,  however,  my  said  daugh- 
ter Nettie  be  not  then  living,  the  then  trustee 
shall  distribute  all  my  estate  equally,  share 
and  share  alike,  to  my  children,  their  heirs, 
administrators  and  assigns,  the  share  of  any 
deceased  child  to  go  to  the  heirs  of  the  body  of 
said  child,  if  any,  the  children  of  Nettie,  if  any, 
to  take  their  mother's  share." 

Tbe  widow  of  tbe  testator,  Laura  E.  But- 
ler, died  January  30,  1917.  The  four  chil- 
dren are  all  living;  tbe  son  Ward  E.  Butler 
being  of  tbe  age  of  24  years,  and  unmarried. 
Tbe  testator's  daughter.  Nettle  B.  Rice,  has 
no  children.  Tbe  other  sons,  Hayward  M. 
Butler  and  D.  Forrest  Butler,  have  each  one 
child.  Both  of  these  children  are  minors  and 
are  represented  by  a  guardian  ad  litem,  who 
also  represents  the  interests  of  persona  not 
ascertained  and  not  yet  in  being  who  may 
be  Interested  In  the  trust  declared  by  said 
will. 

The  questions  which  have  arisen  in  tbe 
course  of  the  administration  of  the  trust  and 
which  this  court  U  asked  to  determine  are 
as  follows: 


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(1)  Are  the  equitable  estates  In  remainder 
wMch  shall  take  effect  In  possession  upon  the 
tennlnation  of  the  trust  vested  or  contingent 
temaluders  ? 

(2)  Should  the  complainants,  as  trustees, 
permit  the  three-fifths  income  of  the  trust 
estate — which  would  have  gone  to  the  testa- 
tor's wife  had  she  lived  until  the  end  of  the 
trust — to  accumulate  and  increase  the  cor- 
png  until  the  termination  of  said  trust,  or 
should  they  distribute  said  three-fifths  in- 
come as  it  accrues?  If  the  latter  is  correct, 
to  whom  and  in  what  proportion  should  It  be 
paid? 

(3)  In  case  said  Nettle  B.  Rice  should  not 
be  living  at  the  time  of  the  termination  of 
said  trust,  would  her  children,  if  any,  take 
collectively  one-fourth  or  two-fifths  of  the 
corpus,  and  would  the  other  three  children 
of  the  testator — ^his  three  sons — ^If  then  liv- 
ing, each  receive  one-fourth  or  one-fifth  of 
said  estate? 

(4)  Would  said  trust  terminate  at  once  in 
case  said  Ward  E.  Butler  should  die  before 
reaching  the  age  of  2S? 

[1,1]  The  primary  and  most  important 
question  to  be  determined  is  whether  the  eq- 
uitable estates  in  remainder  are  vested  or 
contingent.  It  will  therefore  be  convenient, 
in  the  first  Instance,  to  designate  the  partic- 
ular features  which  serve  to  distinguish  a 
vested  remainder  from  a  contingent  remain- 
der. The  distinguishing  feature  of  a  vested 
remainder  Is  that  there  shall  be  a  person  or 
persons  In  being,  ascertained  and  ready  to 
take  possession  whenever  and  however  the 
preceding  estate  may  determine.  In  such 
case  the  interest  vests  at  once,  but  the  en- 
joyment of  it  is  postponed.  In  the  case  of  a 
contingent  remainder,  whether  or  not  any  es- 
tate shall  vest  in  either  right  or  possession, 
or  who  shall  take  it,  depends  on  a  future  con- 
tingency. In  such  case  not  only  the  time  of 
enjoyment,  but  the  right  to  enjoy,  is  uncer- 
tain. 

[3]  In  applying  these  definitions  to  the 
question  which  we  are  now  discussing,  It 
most  also  be  borne  in  mind — 
"tiat  the  law  favors  vesting  very  strongly,  and 
will  not  regard  a  remainder  as  contingent,  in 
the  absence  of  very  decisive  terms  of  contin- 
jtency,  unless  the  provisions  or  implications  of 
the  wiU  clearly  require  it,  and  that  words  ex- 
pressive of  future  time  are  to  be  referred  to 
the  vesting  in  possession,  if  they  reasonably  can 
be,  rather  than  to  the  vesting  in  right."  In  re 
Kenyon,  17  R.  I.  149,  20  Atl.  294;  Ross  v. 
NetUeton,  24  R.  I.  124,  127,  52  AtL  676. 

In  Storrs  v.  Burgess,  29  R.  I.  269,  273,  67 
AtL  731,  732,  this  court  said,  in  qnoting  with 
approval  from  other  authorities: 

"Since  contingent  remainders  have  been  rec- 
ognized, the  line  between  them  and  vested  re- 
mainders is  drawn  as  foUowB:  A  remainder  is 
vested  in  A.  when,  throughout  its  continuance, 
A.,  or  A.  and  his  heirs,  have  the  right  to  the 
unmediate  possession,  whenever  and  however  the 
preceding  estates  may  determine,"  citing  John- 
son V.  Edmond,  65  Conn.  492,  499,  33  Atl.  503 ; 
Starnes  v.  Hill,  112  N.  C.  1,  9,  16  S.  E.  1011, 
22  L.  R.  A.  598.  "The  uncertainty  which 
■naJces  a  gift  contingent  may  be  in  the  capacity 


of  the  devisee  to  take,  or  in  the  hapt>ening  of  as 
event  upon  which  the  gift  is  conditional/' 

[4]  The  portions  of  the  wiU  of  John  J. 
Butler  touching  the  matter  of  remainders 
providing  that  the  trustees  pay  over  the  net 
Income  are  as  follows: 

"To  my  wife  during  her  life  three-fifths  and 
to  my  said  daughter  Nettie  during  her  life  two- 
fifths.  •  •  •  On  the  death  of  my  said  wife, 
and  when  my  said  son  Ward  shall  have  reached 
the  age  of  twenty-eight  years,  I  hereby  direct 
and  empower  my  said  trustees  to  terminate  said 
trust  and  distribute  all  my  said  estate,  two-fifths 
to  my  said  daughter  Nettie  and,  one-fifth  each 
to  my  said  three  sons,  to  each  of  them,  their 
heirs,  administrators  and  assigns  forever,  free 
from  all  trust  and  obligation,  giving  to  my  said 
trustees,  discretion  as  to  the  substance  and  man- 
ner of  such  distribution." 

From  this  language,  taken  by  Itself,  it 
could  be  easily  determined  that  the  remain- 
ders vested.  The  estate  was  certain  and  there 
were  persons  in  being  at  the  testator's  death, 
ascertained  and  ready  to  take  possession 
whenever  the  preceding  estate  should  come 
to  an  end;  that  is,  on  the  death  of  the  tes- 
tator's wife  and  when  the  son  Ward  B.  But- 
ler should  reach  the  age  of  28  years.  The 
delay  would  not  have  postponed  the  vesting, 
but  only  the  enjoyment  The  daughter,  Net- 
tie B.  Rice,  would  have  taken  a  vested  re- 
mainder in  two-fifths  and  each  of  the  three 
sons  a  vested  remainder  in  one-fifth  of  the 
corpus,  to  come  Into  their  possession  at  the 
termination  of  the  trust. 

Storrs  V.  Burgess,  supra,  is  similar  to  tbe 
case  at  bar  In  that  two  things  must  happen 
before  tbe  remainder  vested  in  possession; 
that  is,  that  the  .wife  should  die  and  the 
daughter  tOiould  attain  the  age  of  24  years. 
In  the  case  at  bar  the  wife  must  die  and  the 
son  Ward  reach  the  age  of  28  years.  The 
court  held  in  Storrs  v.  Burgess  that  the 
daughter  was  given  a  vested  remainder  on 
the  testator's  death.  See,  also,  Staples  v. 
D'Wolf ,  8  H.  I.  74 ;  Kelly  v.  Dike,  8  R.  I.  436 ; 
Rogers  v.  Rogers,  11  R.  I.  88;  Clarkson  v. 
Pell,  17  R.  I.  646,  24  AO.  110;  Spencer  v. 
Greene,  17  R.  I.  727,  24  AtL  742 ;  Morgan  v. 
Morgan,  20  R.  I.  600,  40  Atl.  736. 

[6]  It  is  reasonably  certain  in  view  of  the 
authorities  cited  that  we  would  be  Justified 
in  holding  that,  under  the  provisions  of  the 
will,  last  above  quoted,  the  remainders  were 
vested.  There  is,  however,  a  further  provi- 
sion in  the  will  which  must  be  considered  in 
this  connecti(m.  The  testator  goes  on  to  say : 
"If,  however,  my  said  daughter  Nettie  be  not 
then  living,  the  then  trustee  shall  distribute  all 
my  estate  equally,  share  and  share  alike,  to  my 
children,  their  heirs,  administrators  and  assigns, 
the  share  of  any  deceased  child  to  go  to  the  heirs 
of  the  body  of  said  child,  if  any,  the  children  of 
Nettie,  if  any,  to  take  their  mother's  share." 

Do  these  words  change  the  situation  and 
make  the  remainder  contingent  instead  of 
vested?  They  do  not  change  the  paLrties  who 
would  take  at  tbe  expiration  of  the  trust,  ex- 
cept that  it  gives  to  Nettle's  children.  If  any, 
in  case  of  her  death  the  mother's  share  and 
changes  the  proportion  of  tbe  estate  whldi 


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each  remainderman  .wonld  take.  There  seems 
to  be  sound  authority  that  this  wonld  not 
change  an  estate  already  vested  into  a  con- 
tingent estate.  In  40  Cyc.  1670,  the  general 
rule  Is  stated  in  this  language: 

"A  gift  over  on  death  or  failure  of  tiie  benefi- 
ciaries in  remainder  does  not  render  the  remain- 
der any  the  less  vested,  although  it  may  be  con- 
tingent from  other  reasons.  A  gift  over  on 
death  leaving  issue  does  not  render  the  estate 
of  the  first  taker  contingent,  and  a  gift  to  others 
on  death  without  issue  does  not  render  the  prior 
estate  contingent;  but  the  gift  over  on  death 
without  issue  will  itself  be  contingent" 

R,  I.  Hospital  Trust  Ca  v.  Noyes,  26  R.  I. 
323,  68  Atl.  999 :  Here  all  the  net  income  was 
to  <o  to  T.  aftw  be  reached  21  and  before  he 
reached  25,  and  upon  his  reaching  25  he  was 
to  get  the  whole  corpus.  But  If  he  died  before 
reaching  25,  the  corpus  was  to  go  to  his  issue. 
X.  died  between  the  ages  of  21  and  25  without 
issne.  The  court  held  that  Y.  took  a  vested 
interest  in  the  fund,  subject  to  being  divested 
If  be  died  without  issue  under  25. 

Storrs  V.  Burgess,  29  R.  I.  269,  67  Att.  731  : 
Here  the  whole  income  was  to  go  to  the  wife 
until  the  daughter  reached  25  when  one-half 
of  the  income  was  to  go  to  the  daughter; 
If  the  wife  died  before  the  daughter  reached 
26,  the  .whole  income  was  to  be  held  In  trust 
for  the  daughter  until  she  reached  25,  and 
then  the  corpus  was  to  be  paid  to  her.  If  the 
daughter  died  before  she  reached  25  leaving 
issue,  half  was  to  go  to  her  issue,  etc.  The 
daughter  died  before  reaching  25,  without 
issue,  the  mother  living.  The  court  held  that 
the  daughter  took  a  vested  equitable  re- 
mainder in  fee,  subject  to  be  divested  by  her 
death  under  the  age  of  25  or  before  her 
mother. 

Hayes  v.  Robeson,  29  R.  I.  216,  69  Atl.  686 : 
Here  there  was  a  trust  to  apply  the  income 
for  the  education  of  two  grandsons ;  if  either 
died  before  21,  the  whole  income  to  the  other ; 
if  both  died  before  21,  then  over.  The  court 
held  that  the  grandsons  took  a  vested  inter- 
est in  the  funds,  liable  to  be  divested  by 
death  under  the  age  of  21. 

In  the  case  at  bar  remainders  are  given 
with  the  provision  that  if  one  of  the  re- 
maindermen, Nettie,  dies  before  the  end  of  the 
trust  the  proportion  of  the  amounts  giv^i 
will  be  changed  and  her  share  will  go  to  her 
children.  In  the  above  three  cases  (R.  I.  Hos- 
pital Trust  Co.  V.  Noyes,  Storrs  v.  Burgess, 
and  Hayes  v.  Robeson)  the  trust  provided  for 
gifts  over  under  somewhat  similar  contin- 
gencies, and  in  all  three  cases  the  court  held 
that  the  remaindermen  took  a  vested  re- 
mainder subject  to  be  divested  on  the  hap- 
pening of  the  contingency. 

We  think  that  these  provisions  of  the  will 
must  be  construed  as  giving  to  Nettle  B. 
Rice  a  vested  remainder  in  two-flfths  of  the 
corpus,  subject  to  being  decreased  to  one- 
quarter  In  case  she  died  before  the  termina- 
tion of  the  trust,  and  to  each  of  the  three 
sons  a  vested  remainder  In  one-flfth  of  the 
oorpas,   subject  to  being  increased  to  one- 


quarter  In  case  Nettle  died  before  tbe  trust 
terminated.  In  reaching  this  conclusion  we 
are  not  hampered  by  anything  in  the  will 
which  appears  to  us  to  be  an  Intention  on  the 
part  of  the  testator  to  make  tbe  remainders 
contingent  rather  than  vested. 

[6]  We  now  come  to  the  consideration  of 
the  question  as  to  what  disposition  should 
be  made  of  the  three-fifths  of  the  Income  of 
the  trust  estate  given  to  the  testator's  wife 
for  life,  from  the  time  of  her  death  to  the 
expliration  of  the  trust,  that  is,  when  the  son 
Ward  shall  have  reached  the  age  of  28  years 
or  shall  have  deceased  prior  thereto.  Should 
this  income  be  allowed  to  accumulate  and 
be  added  to  the  corpus  until  the  termlnatlott 
of  the  trust,  or  should  It  be  paid  oat  as  it 
accrues  and  if  the  latter  to  whom  and  In 
what  proportion?  The  general  rule  is  stated 
in  40  Cya  1659,  as  follows: 

"The  ri);ht  to  accumulations  of  income  direct- 
ed by  will  may  be  vested,  and  tbe  vested  right 
will  attach  to  each  new  amount  as  fast  as  it 
accumulates,  and  will,  in  general,  be  either 
vested  or  c<niting«it  accordug  as  the  gift  of 
principal  is  vested  or  contingent." 

In  Rogers  v.  Rogers,  11  R.  I.  38,  the  residue 
of  the  estate  was  left  in  trust  as  a  guaranty 
for  the  payment  of  an  income  of  ?3,000  to  the 
testator's  wife  for  life,  and  after  her  death 
to  divide  all  tbe  residue  equally  between  the 
trustee's  eight  children,  and  when  tbe  income 
during  the  life  tenancy  exceeded  the  neces- 
sary $3,000,  it  was  held  that  the  remainder 
over  was  vested,  and  that  the  remaindermen 
were  entitled  to  the  excess  income  during  the 
life  tenancy.  In  discussiing  the  question  of 
accumulation  or  payment  of  the  Income,  the 
court  sold: 

"Tbe  will  contains  no  traces  of  a  wish  to  ag- 
grandize a  property  which  was  already  ample, 
by  mere  accumulation,  until  tbe  division ;  and 
the  inference  ia  easily  drawn  that  the  testator 
supposed  that  the  income,  instead  of  accumulat- 
ing, would  be  enjoyed  by  the  objects  of  his  boun- 
ty. Indeed,  be  probably  had  the  idea  that  a 
trust  ordinarily  means  an  arrangement  by  wldeb 
the  trnstee  safely  kepps  the  corpus  of  the  prop- 
erty, while  the  beneficiaries  enjoy  its  income." 

In  Wakefield  v.  Small,  74  Me.  277,  the  tes- 
tator directed  his  trustees  to  set  aside  from 
the  corpus  $30,000,  and  to  pay  the  whole 
annual  Income  to  his  wife  for  life.  If  any 
income  from  the  corpus  remained,  he  direct- 
ed it  to  be  divided  equally  among  his  chil- 
dren until  the  youngest  diild  reached  21 
years,  and  then  the  trustees  were  to  divide  the 
unexpended  residue  set  aside  for  the  main- 
tenance of  the  children,  and  also  the  $30,000 
set  aside  for  the  support  of  the  wife  If  she 
was  not  then  living.  If  the  wife  were  living, 
the  trust  estate  of  $30,000  was  to  continue 
until  her  death,  and  then  to  be  divided.  She 
died  before  tbe  youngest  diild  reached  21. 
It  was  held  that  upon  the  death  of  the  wife 
tbe  $30,000  falls  into  the  balance  of  assets, 
the  annual  Income  of  which  was  paid  to  all 
the  children  of  testator,  and  each  child  re- 
ceived tbe  same  proportionate  part  of  tbe  in- 
come of  the  $30,000  that  the  will  provided 


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they  should  receive  of  the  balance  of  the  as- 
sets ;  the  court  saying: 

"It  is  the  opinion  of  the  court  that  under  the 
will,  upon  the  death  of  the  widow,  the  applica- 
tion of  the  income  of  the  (30,000  to  her  use 
during  life  having  served  its  purpose,  that  sum, 
the  $30,000,  fsUs  into  the  balance  of  assets  men- 
tioned in  tlie  fourth  section  of  the  tenth  clause 
of  the  will,  the  annual  income  of  which  is  to 
be  paid  to  all  the  children  of  the  testator,  'each 
receiving  his  or  her  equal  share,  until  the  young- 
est of  my  said  children  that  shall  live  to  arrive 
at  the  age  of  twenty-one  years,  shall  arrive  at 
said  age.'  •  •  *  Nothing  indicates  that  the 
testator  intended  the  income  to  be  invested  and 
accumulate  during  such  a  period." 

The  will  under  consideration  falls  to  fur- 
nlsb  anything  .which  can  be  said  to  indicate 
any  wish  or  desire,  on  the  part  of  the  testa- 
tor, that  accTunulatioDa  should  go  to  Increase 
the  corpus  of  the  estate  and  the  disposition 
of  the  whole  Income  under  the  trust  would 
seem  to  some  extent  to  support  the  contrary 
view.  We  think  that  the  Income  from  the 
three-fifths  of  the  estate  given  by  the  testator 
to  his  wife  for  life  should  not  accumulate  to 
increase  the  corpus,  but  that  it  should  be  paid 
as  It  accrues  to  the  vested  remaindermen, 
Nettie  B.  Rice,  Hayward  M.  Butler,  D.  For- 
rest Butler,  and  Ward  B.  Butler  In  the  pro- 
portion of  two-flfths  thereof  to  Nettle  B.  Rice 
and  one-flfth  each  to  Hayward  M.  Butler,  D. 
Forrest  Butler,  and  Ward  E.  Butler. 

[7]  In  the  event  that  NetUe  B.  Rice  should 
decease  prior  to  the  termination  of  the  trust, 
leaving  children,  would  such  children  take 
one-fourth  or  two-flfths  of  the  corpus  of  the 
estate  is  the  next  question  for  consideration. 
It  would  be  but  natural  for  the  testator  to 
feel  that  his  daughter  would  be  less  capable 
than  bis  sons  of  earning  an  income,  and  it 
is  fair  to  presume  that  he  may  for  that  rea- 
son have  been  desirous  of  favoring  her  to 
Home  extent  In  the  disposition  of  his  prot)- 
erty.  But,  however  that  may  be.  It  seems 
reasonably  clear  from  the  will  that  he  did 
not  desire  to  extend  the  same  conslderaUon 
to  children  that  might  possibly  be  born  to 
her  In  the  future.  In  contemplation  of  the 
decease  of  his  daughter,  prior  to  the  ter- 
mination of  the  trust,  the  testator  provides 
that: 

"The  then  trustee  shall  distribute  all  my  M|- 
tate  equally,  share  and  share  alike,  to  my  chil- 
dren, their  heirs,  administrators  and  assigns, 
the  share  of  any  deceased  child  to  go  to  the  heirs 
of  the  body  of  said  child,  if  any,  the  children 
of  Nettie,  if  any,  to  take  their  mother  s  share. 

This  language  seems  to  us  to  indicate  an 
intent  on  the  part  of  the  testator  that  in 
tbe  event  of  the  death  of  his  daughter,  before 
the  termination  of  the  trust,  her  children,  if 
any,  should  share  equally  with  his  three 
itorta  and  take  one-quarter  of  the  estate. 
We  do  not  think  that  the  testator,  by  the 
words  "the  children  of  Nettle,  if  any,  to 
take  their  mother's  share"  intended  that 
Nettle's  childr^i  should  take  two-flfths  of 
tbe  estate,  but  rather  that  they  should  take 
the  portion  that  would  go  to  the  mother  upon 
-the  ba^s  of  an  equal  division  of  the  estate 


Into  fhnr  parts.  Such  Intent  Is  borne  out 
by  the  words  which  precede  those  above 
quoted,  "the  then  trustee  shall  distribute  all 
my  estate  equally,  share  and  share  alike,  to 
my  chlldroi,  their  heirs,  administrators  and 


We  now  come  to  the  final  question.  Would 
the  trust  terminate  at  once  upon  tbe  de- 
cease of  Ward  E.  Butler  before  reaching  the 
age  of  28  years? 

[I]  The  whole  object  of  the  trust  was  to 
protect  the  corpus  of  the  estate  during  the 
life  of  the  testator's  wife  and  until  hte  son 
Ward  became  28  years  of  age.  Upon  the 
death  of  the  son  Ward,  the  wife  having  al- 
ready deceased,  there  would  not  be  anything 
remaining  upon  which  the  trust  could  fur- 
ther operate,  and  It  would  therefore  termi- 
nate. In  Sammis  v.  Sammls,  14  B.  L  123, 
there  was  a  provision  that  the  trust  should 
continue  until  the  youngest  of  three  eons 
should  attain  the  age  of  forty  years,  and  the 
court  held  that  the  death  of  all  three 
before  reaching  that  age  would  end  the  trust, 
and  said: 

"This  is  because  there  is  no  reason  for  keep- 
ing the  trust  or  term  alive,  and  it  cannot  be 
kept  alive  until  the  arrival  of  the  time  named 
for  its  termination,  for  that  time  never  will  ar- 
rive. •  •  •  The  death  of  all  the  sons,  there- 
fore, before  either  of  them  attains  the  age  of 
40  years,  will  not  defeat  the  remaindeiv,  but 
will  only  accelerate  their  taking  effect  in  pos- 
session.'* 

Our  conclusions  may  be  specifically  stated 
as  follows: 

(1)  That  Nettle  B.  Rice  on  the  death  of 
the  testator  took  a  vested  remainder  in  two- 
fifths  of  the  corpus  of  the  estate  subject  to 
being  decreased  to  one-fourth  in  the  event  of 
her  death  before  the  termination  of  the  trust. 

(2)  That  Hayward  M.  Butler,  D.  Forrest 
Butler,  and  Ward  E.  Butler  on  the  death  of 
the  testator  each  took  a  vested  remainder 
In  one-flfth  of  the  corpus  of  the  estate  subject 
to  be  Increased  to  one-quarter  in  the  event 
that  Nettle  B.  Bice  should  decease  prior  to 
the  termination  of  the  trust 

(3)  That  Nettie  B.  Rice  should  be  paid  two- 
fifths,  and  Hayward  M.  Batler,  D.  Forrest 
Butler,  and  Ward  B.  Butler  one-fifth  each  of 
Ot»  thxae-flfths  Income  that  would  have  been 
payable  to  the  testator's  wife  from  the  date 
of  her  death  to  the  end  of  the  trust. 

(4)  That  if  Nettle  B.  Rice  should  decease 
prior  to  the  termination  of  the  trust  with- 
out leaving  issue  the  corpus  of  the  estate 
should  be  divided  equally  between  her  three 
brothers  Hayward  M.,  D.  Forrest,  and  Ward 
El,  but  if  Nettle  should  decease  as  aforesaid 
leaving  issue  the  corpus  of  the  estate  should 
be  divided  Into  four  equal  parts,  one  of 
which  should  go  to  the  child  or  children  of 
Nettle,  and  one  to  each  of  the  testator's  sons. 

(5)  That  If  the  said  Ward  El.  Butler  should 
not  reach  the  age  of  28  years  the  trust  would 
terminate  upon  his  death,  and  the  corpus  of 
the  estate  should  be  distributed  as  of  the  date 
of  his  decease. 


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The  complainants  may  present  to  this 
court,  for  approval,  a  decree  in  accordance 
wltb  this  opinion. 

(40  R.  I.  ««) 

OARR  V.  CRANSTON  PRINT  WORKS  CO. 
(No.  5072.) 

(Supreme  Court  of  Rhode  Island.     Jane  19, 
1917.) 

1.  Appeai.  and  Erbob  «=>656(1)— Petition  to 
Establish    Tbdth    of    Exceptions    and 

COEBECTNESS    OF   TBANBCBIPT— AFFIDAVIT   — 
RUUS  OF  COUBT. 

Under  rule  1.3  of  the  Supreme  Court  (62  Atl. 
Ix),  providing  that  every  petition  to  establish 
the  truth  of  exceptions  shall  be  verified  by  af- 
fidavit accompanying  the  petition,  setting  forth 
the  rulings  on  which  the  exceptions  are  based, 
and  that  every  petition  to  determine  the  cor- 
rectness of  a  transcript  of  testimony  shall  be  ac- 
companied by  affidavit  setting  forth  that  the 
transcript  certified  by  the  court's  stencwrapher 
is  correct  or  incorrect,  and.  if  incorrect,  in  what 
particulars,  etc.,  where  defendant  failed  to  com- 
ply with  the  rule,  and  did  not  specifically  set 
out  the  rulings  on  which  its  exceptions  were 
based,  and  did  not  set  forth  that  the  transcript 
was  correct  or  incorrect,  and,  if  incorrect,  in 
what  particulars,  plaintifTs  motion  to  dismiss 
defendant's  petition  to  establish  the  truth  of  its 
exceptions  and  the  corrrrtness  of  the  transcript 
of  evidence  should   be  granted. 

[EM.  Note.— For  other  canes,  see  Appeal  and 
Error,  Cent.  Dig.  ((  2826,  2828.] 

2.  Appeal   and    Error   «=»656(1)— Petition 
TO  Establish  Tbuth  of  Exceptions  and 

CORBECTNESS    OP  TRANSCRIPT— JURISDICTION 

— Additional  AmnAviTS. 
Under  mle  13  of  the  Supreme  Court  (62  Atl. 
ix),  concerning  petitions  to  establish  the  truth 
of  exceptions  and  the  correctness  of  transcripts, 
if  the  Supreme  Court  has  not  acquired  jurisdic- 
tion by  the  steps  taken  within  the  30  days  next 
after  the  filing  of  the  bill  of  exceptions  in  the 
superior  court,  it  cannot  acquire  jurisdiction  aft- 
er the  expiration  of  30  days  by_  the  filing  of  ad- 
ditional affidavits  with  petition  to  establish 
truth  of  exceptions  and  correctness  of  transcript 
of  evidence. 

[Ed.  Note; — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ff  2826,  2828.1 

3.  Appeal  and  Error  «=>650(1)— Tbanscbipt 
—Establishing  Truth  ob^— Rule  of  Coxjbt. 

The  Supreme  Court  would  not  deem  it  ad- 
visable to  change  an  apparently  reasonable  and 
salutary  rule  relative  to  petitions  to  establish 
the  truth  of  exceptions  and  the  correctness  of 
the  transcript  of  evidence,  which  has  been  con- 
sidered, explained,  and  enforced  by  the  court  in 
numerous  decisions,  in  response  to  the  mere 
allegation  of  a  defeated  litigant  that  its  en- 
forcement in  his  case  will  work  an  injustice. 

[Bd.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §{  2826,  2828.] 

Actica  by  Marlon  Carr  against  the  Crans- 
ton Print  Works  Company.  There  was  ^r- 
dict  for  plaintur,  and  defendant  filed  motion 
for  new  trial,  which  was  denied,  and  filed  Its 
bill  of  exceptions  in  the  office  of  the  cleric 
of  the  superior  court  On  plaintifTs  motion 
to  dismiss  defendant's  petition  to  estabUsh 
the  truth  of  Its  exceptions  and  the  correctness 
of  the  transcript  of  evidence.  Defendant's 
petition  to  establish  the  tratb  of  its  excep- 
tions dismissed,  and  papers  ordered  to  be  re- 
turned to  the  superior  court 


Flynn  &  Mahoney,  of  ProvidMice,  for  plain- 
tiff. Herbert  Almy,  of  Providence,  for  de- 
fendant 

BAKER,  3.  This  case  la  before  the  court 
on  plaintlfrs  motion  to  dismiss  the  petition 
of  the  defendant  to  establish  the  truth  of  its 
exceptions  and  the  correctness  of  the  tran- 
script of  evidence. 

This  Is  an  action  of  trespass  on  the  case 
for  negligence.  It  appears  from  the  papers 
in  the  case  certified  to  this  court  that  It  was 
tried  before  Mr.  Justice  Steams  and  a  jury  on 
the  30th  and  Slst  days  of  October,  1916,  and 
that  a  verdict  was  rendered  for  the  plalntiCC 
in  the  sum  of  |6,000.  The  defendant  filed  a 
motion  for  a  new  trial,  which  was  heard  and 
denied.  Thereafterwards  It  duly  filed  a  no- 
tice of  Its  intention  to  prosecute  a  bill  of 
exceptions,  its  request  for  a  transcript  of  the 
entire  record  accompanied  with  a  deposit  of 
the  estimated  fee  therefor,  and  within  the 
time  allowed  therefor  by  the  court  the  tran- 
script of  said  record  on  March  24,  1917,  and 
said  bill  of  exceptions  on  March  26,  1917, 
were  duly  filed  In  .the  office  of  the  clerk  of 
said  court 

Owing  to  the  election  of  Mr.  Justice 
Steams  as  a  member  of  tbls  court  before 
either  of  the  dates  last  named,  it  became  Im- 
possible for  him  to  perform  the  duties  de- 
volving upon  him  under  section  19  of  chapter 
298  of  the  General  Laws  relative  to  the  al- 
lowance of  the  bill  of  exceptions  and  the 
transcript 

After  the  lapse  of  more  than  20  days  fol- 
lowing the  filing  of  said  bill  of  exceptions 
and  within  30  days  thereafter,  to  wit,  on 
April  18,  1917,  the  defendant  filed  in  this 
court  Its  said  petition,  in  which  It  sets  forth 
the  foregoing  facts,  and  prays: 

"That  the  truth  of  its  exceptions  be  estab- 
lished and  the  transcript  of  the  evidence  and 
the  rulings  thereon  and  of  the  instructions  to 
the  jury  be  allowed  by  this  court  as  filed." 

Attached  to  the  petition  was  this  affidavit : 
"I,  Herbert  Almy,  of  the  city  and  county  of 
Providence,  in  the  state  of  Rhode  Island,  on 
oath  say  I  am  the  attorney  of  record  in  the  case 
of  Marion  Carr  v.  Cranston  Print  Works  Com- 
pany, and  as  such  am  familiar  with  the  travel 
of  said  case  through  the  superior  court;  that 
tSe  statement  of  the  travel  of  said  case  contain- 
ed in  the  foregoing  petition  is  true  to  the  best 
of  my  knowledge  and  belief.  And  I  further 
say  that  the  exceptions  contained  in  the  bill  of 
exceptions  in  said  petition  referred  to  were  duly 
taken  at  the  trial  of  said  case  before  a  jury  and 
noted  by  the  judge  who  presided  at  the  trial, 
and  said  bill  of  exceptions,^  transcript  of  evi- 
dence, etc.,  were  duly  filed  in  the  office  of  the 
clerk  of  said  superior  court  within  seven  days 
after  notice  of  decision  denying  defendant's  mo- 
tion for  a  new  trial.  Herbert  Almy. 

"Subscribed  and  sworn  to  at  Providence  this 
18th  day  of  April,  1917. 

"Charles  H.  McKenna,  Notary  Public." 

The  gronnds  of  the  plaintiff's  motion  to  dis- 
miss are  stated  as  follows: 

"(1)  Said  petition  is  not  verified  by  affidavit 
accompanying  the  same,  as  required  by  rule  13 
of  this  court  (62  Atl.  ix). 


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"(2)  Said  d«fq»dant  has  not  iet  forth  in  its 
petition  the  rulings  npon  which  the  exceptions 
are  based,  as  required  by  rule  13  of  this  court 

"(3)  Said  defendant  has  not  set  forth  in  its 
affidavit  accompanying  its  petition  the  rulings 
apon  which  the  exceptions  are  based,  as  re- 
quired by  rule  13  of  this  court. 

"(4)  Said  defendant  has  not  accompanied  its 
petition  to  determine  the  correctness  of  its  tran- 
script of  the  evidence  bjr  affidavit  setting  forth 
that  the  transcript  certiSed  by  the  court  ste- 
nographer is  correct,  aa  required  by  rule  IS  of 
this  court. 

"(5)  Said  defendant  has  not  accompanied  its 
petition  to  determine  the  correctness  of  its 
transcript  of  the  evidence  by  affidavit  setting 
forth  that  the  transcript  certified  by  the  court 
stenographer  is  incorrect,  and,  if  incorrect,  in 
what  particular,  as  required  by  rule  13  of  this 
court" 

So  much  of  rule  13  of  this  court  as  Is  per- 
tinent to  the  questions  now  raised  is  as  fol- 
lows: 

"Every  petition  to  establish  the  truth  of  ex- 
ceptions shall  be  verified  by  affidavit  accompany- 
ing the  petition,  setting  forth  the  rulings  upon 
which  the  exceptions  are  based ;  and  every  peti- 
tion to  determine  the  correctness  of  a  transcript 
of  testimony  shall  be  accompanied  by  affidavit 
setting  forth  that  the  trauBcnpt  certified  by  the 
court  stenographer  is  correct  or  Incorrect,  as 
the  case  may  be,  and,  if  incorrect,  in  what  par- 
ticular ;  and  the  petitioner  shall  withiit  24  hours 
after  the  filing  of  bis  petition  deliver  to  the 
advprse  party  or  his  attorney  of  record  a  copy 
of  the  same  and  of  the  affidavits," 

The  petitioner  In  its  brief  admits : 
"That  the  affidavit  accompanying  the  petition 
when  filed  did  not  specifically  set  out  the  rulings 
npon   which    the   exceptions  were  based." 

It  is  also  apparent  by  Inspection  tliat  said 
affidavit  does  not  set  fortb: 

•That  the  transcript  •  •  *  is  correct  or 
incorrect,  as  the  case  may  be,  and,  if  incorrect, 
in  what  particular." 

The  first  question  for  consideration  is  as 
to  the  effect  of  these  omissions. 

Tlie  proTisitms  regulating  the  prosecuting 
of  bills  of  exceptions  are  found  in  sections  17 
to  22,  inclusive,  of  chapter  298  of  the  Gen- 
eral Laws  (first  enacted  in  May,  1905,  as  part 
of  tbe  Court  and  Practice  Act),  and  in  cer- 
tain rules  of  the  superior  and  Supreme 
Courts.  In  numerous  cases  litigants  have 
been  held  to  a  strict  observance  of  this  stat- 
ute and  these  rules. 

In  HarUey  v.  H.  I.  Co.,  28  B.  I.  157,  on 
page  159,  66  Ati.  63,  on  page  65,  tbe  court 
said: 

"A  strict  construction  of  statutes  relating  to 
bills  of  exceptions  everywhere  prevails.  After 
a  litigant  has  had  his  day  in  a  court  of  general 
jurisdiction,  with  all  the  presumptions  which 
exist  in  favor  of  the  decision  of  a  jury  instruct- 
ed by  an  educated  and  experienced  judge,  if  he 
desires  a  review  of  tbe  case  in  an  appellate 
court,  he  must  apply  for  It  in  the  time  and  in 
the  nianner  prescribed  by  the  statutes." 

In  Smith  V.  HaSkell  Mfg.  Co.,  28  R.  I.  91, 
98,  65  Atl.  610,  611,  It  appeared  that  a  liti- 
gant bad  failed  to  give  the  opposite  party  no- 
tice of  flUng  his  bill  of  exceptions  within  the 
time  required  by  rule  32  of  the  superior  court 
This  court  said : 

"Upon  the  adoption  of  the  rule  so  authorized, 
tbe  same  became  a  part  of  the  law  of  the  state. 


and  governs  the  subject-matter  to  which  it  re* 
lates,  and  cannot  be  ignored.  As  it  is  of  statu- 
tory origin,  it  can  be  changed,  modified,  or  re- 
pealed only  in  the  manner  provided  by  the  stat- 
ute. Obedience  to  its  mandate  became  a  neces- 
sary step  in  the  procedure  to  be  taken  in  tiie 
prosecution  of  liUls  of  exceptions." 

And  it  held  that  it  had  no  jurisdiction  to 
consider  the  bill  of  exceptions. 

In  Cole  V.  Davis  Automobile  Co.,  33  R.  I. 
143,  80  Atl.  268,  the  petitioner,  seeking  to 
establish  the  truth  of  his  exceptions  by  peti- 
tion, failed  to  show  compliance  with  rule  13 
of  this  court  In  delivering  to  the  adverse 
party  a  copy  of  his  petition  and  the  affidavits. 
The  court  on  page  149  of  33  R.  L,  page  270  of 
80  Atl.,  after  quoting  from  Smith  r.  Haskell 
Mfg.  Co.,  supra,  the  citation  above  given,  said, 
"This  statement  is  equaUy  applicable  to  the 
rule  under  consideration  in  this  case,"  and 
dismissed  the  petition. 

Vassar  v.  Lancaster,  30  R.  I.  221,  74  Atl. 
711,  was  heard  upon  defendant's  petition  to 
establish  the  truth  of  tbe  exceptions,  and  the 
provisions  of  said  rule  13  were  considered,  as 
the  petition  did  not  ask  to  have  the  correct- 
ness of  the  transcript  determined,  and  there 
was  no  affidavit  as  to  its  correctness  or  in- 
correctness. Tbe  court  said  (30  R.  I.  on  page 
225,  74  Atl.  712) : 

"Although  the  question  has  not  been  raised 
by  the  parties,  still,  as  the  jurisdiction  of  this 
court  in  the  matter  depends  upon  the  regularity 
of  the  steps  taken  in  bringing  the  exceptions 
here,  it  is  necessary  to  consider  it" 

And  (30  R.  I.  on  page  228,  74  AtL  713)  it 
also  said: 

"The  defendant  could  have  proceeded  by  peti- 
tion, verified  by  affidavit,  to  establish  the  cor- 
rectness of  the  transcript  of  testimony.  He  has 
not  done  so,  however,  but  has  contented  himself 
with  an  attempt  to  establish  only  the  truth  of 
the  exceptions  claimed.  This  leaves  the  truth 
as  to  the  rest  of  the  proceedings  at  the  trial  un- 
established." 

And  the  petition  was  dismissed.  See,  also, 
Paull  V.  Paull,  30  R.  I.  253,  74  AO.  1016, 
Mattesott  v.  Benjamin  F.  Smith  Co.,  30  R.  I. 
198,  74  Atl.  225,  First  Baptist  Society  v. 
WethereU,  29  B.  L  831,  71  AtL  66,  McLean 
V.  Wheelwright,  31  B.  L  562,  78  AU.  261, 
and  Beaule  v.  Acme  Finishing  Co.,  36  R.  I. 
74,  89  Atl.  73,  as  further  Illustrations  of  the 
strictness  with  which  the  provisions  for 
prosecuting  bills  of  exceptions  have  been  con- 
strued. 

[1]  As  the  defendant  has  failed  to  comply 
with  the  provisions  of  rule  13,  it  seems  ap- 
parent that  in  conformity  with  tbe  rules  of 
construction  stated  in  the  decisions  above 
cited  the  motion  to  dismiss  should  be 
granted. 

The  defendant,  however,  raises  one  other 
question.  At  the  hearing  on  April  30,  1917, 
on  the  motion  to  dismiss  the  defendant  of- 
fered two  affidavits,  which  are  called  sup- 
plemental affidavits,  one  made  by  its  attorney 
of  record,  the  other  by  the  court  stenographer 
reporting  the  case  in  the  superior  court,  for 
the  purpose  of  covering  the  omissions  in  the 
affidavit  on  file  and  to  comply  with  the  re- 


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101  ATLANTIC  REPORTER 


(B.I, 


quirements  of  rule  13.  Tbe  defendant  urges 
that  this  Is  permissible,  if  not  under  tbe  rule 
as  It  stands,  at  all  events  by  tbe  exercise  of 
the  power  of  the  court  to  alter  Its  own  rules 
at  will.  Tbe  citations  from  decisions  of  this 
court  above  given  make  it  plain  that  since  the 
passage  of  the  Court  and  Practice  Act  this 
court  has  uniformly  held  that  Its  Jurisdic- 
tion as  to  bills  of  exceptions,  and  a  tran- 
script of  testimony  depends  upon  tbe  regular- 
ity of  tbe  steps  taken  In  bringing  tbe  excep- 
tions and  transcript  here,  both  as  to  time 
and  manner. 

[2]  Under  tbe  rule  as  it  stands,  If  this 
court  bad  not  acquired  Jurisdiction  of  tbe 
case  by  the  steps  taken  within  the  30  days 
next  after  tbe  filing  of  tbe  bill  of  excep- 
tions In  the  superior  court,  it  could  not  ac- 
quire Jurisdiction  after  the  expiration  of 
30  days  by  tbe  filing  of  additional  affidavits. 
On  April  30,  1917,  more  than  30  days  bad 
elapsed  since  the  filing  of  tbe  bill  of  excep- 
tions on  March  26,  1917.  In  some  of  said  de- 
cisions the  court  has  said  that  rule  13  in 
proceedings  like  these  has  the  effect  of  a  stat- 
ute. Of  course,  the  court  has  tbe  power  to 
alter  it  as  it  has  in  fact  once  done.  We 
think,  however,  that  it  is  by  no  means  certain 
that  tbe  court  at  this  late  day  can  so  change 
the  rule  as  to  give  life  and  legality  to  the 
steps  already  taken  and  to  itself  Jurisdiction. 

[3]  In  any  event  we  would  not  deem  it  ad- 
visable to  change  an  apparently  reasonable 
and  salutary  rule,  which  has  been  con- 
sidered, explained,  and  enforced  by  the  court 
in  numerous  decisions,  of  which  all  the 
members  of  the  bar  by  the  exercise  of  rea- 
sonable care  and  diligence  can  readily  In- 
form themselves,  tn  response  to  the  mere  al- 
legation of  a  defeated  litigant  that  its  en- 
forcement in  bis  case  will  work  an  Injustice. 

Tbe  defendant's  petition  to  establish  tbe 
truth  of  its  exceptions  is  dismissed,  and  tbe 
papers  in  tbe  original  case  are  ordered  to  be 
returned  to  tbe  superior  court  for  Providence 
county. 


BRANIGAN  V.  LEDERER  REALTY  CORP. 
et  al.  (two  cases).    (Nos.  5011,  5012.) 

(Supreme  Court  of  Rhode  Island.    July  3, 1917.) 

Landlobd  akd  Tenant  «=»ld4(l)— Injubus 
TO  TENANi^LiABii-rrY  OP  Landlord. 
Where,  in  an  action  against  a  landlord  for 
injuries  to  a  tenant  from  a  fall  due  to  the  roll- 
ing of  a  step  nailed  on  the  roof  and  on  which 
she  placed  her  foot  in  order  to  throw  out  gar- 
bage, it  appeared  not  only  that  the  leaso  requir- 
ed defendant  to  keep  the  roof  in  proper  repair, 
and  that  defendant  or  its  agents  knew  of  tbe 
use  made  of  the  roof  and  the  step,  but  that  the 
step  had  been  moved  by  defendant's  agent  on  the 
day  of  tbe  accident,  and  then  replaced  without 
bemg  nailed  down,  defendant  was  liable,  regard- 
less of  whether  plaintiff  was  on  the  roof  by 
the  invitation,  express  or  implied,  of  defendant, 
or  was  a  mere  licensee,  and  though  tho  step  and 
the  door  leading  to  the  roof  had  been  placed 


there  by  the  owner  from  whom  defendant  leas- 
ed the  <»tire  building. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  H  630,  634-637.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  Counties;  Elmer  J.  Bath- 
bun,  Judge. 

Actions  by  Mary  Branlgan  and  William  B. 
Branlgan  against  tbe  Lederer  Realty  Cor- 
poration and  others.  Verdict  for  plaintiffs, 
and  the  defendant  named  excepts.  Excep- 
tions overruled,  and  cases  remitted,  with  di- 
rections. 

Pblllp  S.  Knauer  and  George  Hurley,  both 
of  Providence,  for  plaintiffs.  J.  Jerome 
Habn  and  Raymond  P.  McCanna,  both  of 
Providence,  for  defendant 

PER  CURIAM.  The  above-mentioned  cas- 
es by  order  of  trial  court  were  tried  together, 
and  resulted  In  a  verdict  against  the  Lederer 
Corporation  for  tbe  plaintiff  Mary  Branlgan 
for  $3,600,  and  for  WlUiam  B.  Branlgan,  her 
husband,  for  $1,800,  whifli  latter  verdict  by 
action  of  tbe  trial  court  was  reduced  to  $600. 
The  cases  were  brought  to  this  court  by  tlie 
defendant,  tbe  Lederer  Corporation,  by  bill 
of  exceptions.  In  which  objections  are  raised 
to  various  rulings  of  the  court,  and  more 
particularly  to  the  refusal  of  the  trial  court 
to  direct  a  verdict  in  favor  of  tbe  said  Leder- 
er Corporation,  and  also  to  tbe  refusal  to 
grant  a  new  trial. 

After  a  review  of  tbe  record  in  this  case 
and  upon  consideration  of  the  testimony,  we 
are  of  the  opinion  that  there  is  sufficient  evi- 
dence to  sustain  tbe  finding  of  the  Jury  and 
the  subsequent  approval  thereof  by  the  trial 
court. 

The  evidence  shows  that  tbe  roof  In  ques- 
tion was  tbe  only  place  in  the  nature  of  a 
yard  which  the  plaintiffs,  who  were  the  oc- 
cupants of  tbe  second  story  tenement,  had. 
On  this  roof  were  board  walks  and  clothes- 
lines runnin$r  from  one  building  to  another, 
wblcb  had  been  there  for  a  number  of  years 
before  plaintiffs  occupied  the  tenement  and 
bad  been  used  by  former  tenants.  Some  time 
prior  to  the  occupancy  of  the  tenement  by 
the  plaintiffs  a  window  looking  out  upon  tbe 
roof  and  throu^  which  tenants  had  formerly 
passed  in  order  to  go  onto  the  roof  bad  been 
changed  Into  a  door,  and  a  wooden  step  had 
been  nailed  to  the  side  of  tbe  house  between 
tbe  threshold  of  the  door  and  the  roof  to 
make  the  approach  to  tbe  roof  more  con- 
venient There  is  some  question  whether  the 
door  and  step  were  placed  there  by  the 
plaintiffs'  landlord,  or  by  tbe  defendant,  the 
owner  of  tbe  building  from  whom  tbe  plaiu- 
tlffs'  landlord  leased  the  entire  bulldiug, 
with  the  exception  of  tbe  roof,  which  was  re- 
served to  the  defendant.  By  tbe  terms  of  the 
lease  it  was  the  duty  of  the  defendant  to 
keep  the  roof  in  proper  repair.  Assuming 
that  tbe  defendant  did  not  open  tbe  door  in 


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123 


quesUon  and  bnlld  tbe  step,  It  is  clear  that 
the  defendant  or  its  agents  knew  of  the  use 
made  of  the  roof  and  tbe  door  and  step  refer- 
red to.  In  attempting^  to  go  onto  tbe  roof  in 
order  to  throw  some  garbage  into  a  garbage 
r'an,  which  was  kept  there  by  the  plaintiff, 
she  placed  her  foot  on  the  step  referred  to. 
The  step  rolled  out  from  under  her  and  she 
had  a  severe  fall.  There  was  evidence  which 
would  warrant  tbe  finding  that  this  step, 
which  had  been  securely  nailed  to  tbe  side  of 
the  bouse,  bad  been  moved  on  the  day  of  tbe 
accident  by  the  agent  of  the  defendant,  in  or- 
der that  he  might  examine  tbe  roof  for  leaks, 
and  that  it  bad  been  replaced  and  left  nnat- 
tached  to  tbe  bouse.  If  this  is  the  fact,  and 
the  plaintiff  was  injured  as  a  result  of  tbe 
Interference  of  the  defendant's  servant  with 
the  Bt^,  tbe  Jury  were  warranted  in  finding 
that  d^endant  was  liable,  and  it  is  not  ma- 
terial whetber  tbe  plalntllt  was  on  the  roof 
by  tbe  invitation,  express  or  Implied,  of  tbe 
defendant,  or  even  if  she  were  a  mere  li- 
censee. She  was  lawfully  on  tbe  roof,  and  as 
held  in  tbe  case  of  Knowles  v.  Exeter  Mtg. 
Co.,  77  N.  H.  208,  90  Atl.  970  (1914): 

"The  defendant,  having  assumed  to  act  to- 
ward a  known  situation,  was  bound  by  the 
usual  rule  of  reasonable  conduct" 

Tbe  statement  of  tbe  law  to  tbe  Jury  by 
the  trial  judge  was  clear  and  correct,  and 
the  damages  awarded  are  not  excessive. 

We  find  no  reversible  error  in  the  case. 

The  defendant's  exceptions  are  overruled 
in  each  case,  and  the  cases  are  remitted  to 
the  superior  court,  with  direction  to  enter 
Judgment  for  the  plaintiff  Mary  Brantgan 
upon  the  verdict  and  to  enter  Judgment  for 
the  plaintiff  William  B.  Branigan  upon  the 
verdict  as  reduced  by  tbe  remittitur. 


<40  R.  I.  483) 
REDDINGTON  v. 


GETCHELI*     (No.  4926.) 


(Supreme  Court  of  Rhode  Island.    July  6, 1017.) 

1.  NKGUOEKCE      <e=»l  30(26)   —   CONTBIBDTOBT 

Neguokkce— Question  foe  Juity. 
In  action  for  death  of  plaintiff's  intestate 
from  overturning  of  his  automobile  in  a  gully 
on  defendant's  land,  whether  deceased  was  neg- 
ligent in  driving  his  automobile  outside  the  trav- 
eled part  of  the  highway  on  defendant's  land 
was  tor  the  jury. 

[Ed.  Xote.— For  other  cases,  see  Negligence, 
Cent  Dig.  §S  286,  333.] 

2.  Tbial  €=>14(K1)— Coubt  and  Jury. 

Credibility  of  witnesses  is  for  the  jury,  and 
not  for  the  judge  presiding. 

(Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  f  334.] 

3.  Tkial  «s»171— Direotiro  Vkbdiot. 

A  justice  may  not  direct  a  verdict  in  ac- 
cordance with  what  he  thinks  is  the  preponder- 
ance of  the  evidence. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.   {  306.] 

4.  Trial  <&=»1C8— Directino  Verdict. 

Although  on  motion  for  new  trial  a  judge 
may,  and  should,  consider  tbe  credibility  of  wit- 
iips^cs  and  preponderance  of  evidence,  he  should 


direct  a  verdict  only  when  there  is  no  legal  evi- 
dence justifying  a  contrary  verdict 

[Ed.  Note.— For  other  cases,  see  Trial,  CJent 
Dig.  §{  341,  876-380.] 

5.  Neoltoencb    i8=»136(15)  —  Questions   rOB 

JUBT. 

In  action  for  death  of  plaintiff's  intestate 
from  overtnming  of  his  automobile  by  a  gully 
on  defendant's  land,  the  extent  of  the  permission 
or  invitation  of  defendant  and  his  predecesisor 
in  title  for  the  public  use  of  a  street  on  his  land, 
near  or  on  which  deceased  was  driving,  was 
for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Negligence. 
Cent  Dig.  f  319.] 

6.  NzoLiQENCE   «=>32(1)  —  DxJXT   or   Lamd- 

OWNEB. 

If  the  owner  of  land  by  invitation,  express 
or  implied,  induces  a  person  to  come  upon  his 
land  and  to  cross  over  it,  he  must  use  ordinary 
care  to  keep  that  part  of  the  land,  to  which  such 
person  is  invited  safe  for  the  passage. 

[Ed.  Note.— For  other  cases,  see  Negligence, 
Cent  Dig.  {  42.] 

7.  Nbougxncx    «=3l36(15)  —  QlTSRIONa    vob 
JUBT. 

In  action  for  death  of  automobile  driver, 
whose  automobile  was  overturned  at  night  in 
gully  on  defendant's  land,  whether  defendant's 
implied  invitation  to  use  the  highway  on  his  land 
was  limited  to  daytime  because,  by  ordinances, 
an  adjacent  parkway  was  open  to  the  public 
only  between  sunrise  and  sunset  was  for  the 
Jury. 

[E:d.  Note.— For  other  cases,  see  Negligence, 
Cent  Dig.  {  319.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  Counties;  John  W.  Swee- 
ney, Judge. 

Action  by  Maiy  B.  Reddlngton  against 
Waldo  I.  Getcbell.  Verdict  for  defendant, 
and  plaintiff  excepts.  Exceptions  sustained 
In  part  and  overruled  in  part,  and  case  re- 
mitted. 

Reargnment  denied  102  AtL  88. 

Tilllnghast  &  (ToIIlns,  Easton,  Williams  & 
Rosenfeld,  and  Charles  R.  Easton,  all  of 
Providence,  for  plaintiff.  Mumford,  Huddy  & 
Emerson  and  (Tbarles  O.  Mumford,  all  of 
Providence,  for  defendant 

SWEETLAND,  J,  This  Is  an  action 
brought  under  tbe  statute  to  recover  dam- 
ages for  tbe  death  of  tbe  plaintiff's  son, 
Joseph  Reddlngton,  which  death  is  alleged 
to  have  been  caused  by  the  wrongful  act  of 
tbe  defendant  Tbe  case  was  tried  before  a 
Justice  of  tbe  superior  court  sitting  with  a 
Jury.  At  the  conclusion  of  tbe  evidence  said 
Justice  directed  a  verdict  in  favor  of  tbe  de- 
fendant. Tbe  case  is  before  us  upon  excep- 
tion to  said  action  of  the  Justice  and  upon 
exceptions  to  certain  rulings  of  the  Justice 
made  in  the  course  of  said  trial. 

It  appears  that  tbe  plaintifTs  s<hi  Joseph 
Reddlngton  was,  on  and  before  tbe  early 
morning  of  September  30,  1913,  the  driver  of 
an  automobile  for  hire  in  the  city  of  Provi- 
dence. The  plaintiff  claims  that  there  was 
a  way,  known  as  "Bangor  street,"  laid  out 
over  the  defendant's  land  In  said  city,  and 
that  the  defendant,  for  a  long  time  previous 
to  said  September  30,  1913,  had  invited  the 


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101  ATLANTIC  REPORTER 


(R.I. 


public  to  use  said  way.  The  alleged  wrong- 
ful act  of  the  defendant  consisted  In  negli- 
gently permitting  a  gully  or  deep  depression 
to  remain  across  tbe  easterly  portion  of  said 
way,  which  gully  extended  beyond  the  line 
of  said  way  and  on  other  land  of  tbe  defend- 
ant. Tbe  existence  of  said  gully  was  un- 
known to  Joseph  Reddlngton.  While  said 
Joseph  was  driving  along  said  way,  or  across 
land  of  tbe  defendant  to  tbe  east  of  and  near 
said  way,  shortly  after  midnight  on  Septem- 
ber 30,  1913,  the  wheels  of  his  automobile 
went  into  said  gully,  said  automobile  was 
overturned,  and  he  was  killed.  It  appears 
that  said  way  known  as  Bangor  street  was 
50  feet  In  width.  At  tbe  southerly  end  It 
intersected,  but  did  not  cross,  Chalkstone 
avenue,  a  public  highway  of  the  city  of  Prov- 
idence: from  Chalkstone  avenue  It  ran  north- 
erly for  about  250  feet  to  the  north  line  of 
the  defendant's  land,  and  thence  was  contin- 
ued as  Rosebank  avenue.  In  the  trial  of  said 
case  and  in  the  argument  before  us  Rosebank 
avenue  has  been  spoken  of  as  part  of  a  pub- 
lic park  of  the  city  of  Providence  known  as 
the  "Pleasant  Valley  Parkway."  Prom  such 
evidence  as  was  introduced  In  the  superior 
court  and  certified  to  us  it  appears  that  said 
Rosebank  avenue  for  a  considerable  distance 
beyond  the  northerly  line  of  the  defendant's 
land  was  a  highway  of  the  city  of  Provi- 
dence. Said  Rosebank  avenue  from  its 
southerly  end,  at  the  north  line  of  the  de- 
fendant's land,  proceeds  upon  a  curve  toward 
the  northwest  and  then  westerly  in  a  straight 
line  to  River  avenue,  a  highway  of  the  dty 
of  Providence.  There  are  other  highways  of 
said  city  which  run  into  Rosebank  avenue 
from  the  north.  Just  before  tbe  occurrence 
which  caused  his  death  Joseph  Reddlngton 
with  five  passengers  in  his  automobile  drove 
snld  automobile  from  the  village  of  Centre- 
dale  through  some  highway  and  came  upon 
Rosebank  avenue.  Intending  to  go  to  Chalk- 
stone  avenue,  and  proceeded  around  said 
curve  in  Rosebank  avenue  toward  Bangor 
street  Said  accident  occurred  Just  after  the 
automobile  came  upon  the  land  of  the  de- 
fendant The  defendant  claims  that  while 
on  said  curve  Joseph  Reddlngton  left  the 
roadway  and  drove  upon  the  land  of  the  de- 
fendant to  tbe  east  of  the  way.  The  plain- 
tiff claims  that  Joseph  Reddlngton  came 
upon  the  land  of  the  defendant  within  the 
roadway  of  Bangor  street,  and  that  said 
automobile  was  overturned  by  reason  of  Its 
wheels  going  into  said  gully  on  Bangor  street 
The  ordinance  of  the  city  of  Providence  with 
reference  to  "Parks"  was  introduced  In  evi- 
dence. Section  1,  c.  410,  of  the  Ordinances 
of  1009,  now  section  7,  c.  40,  of  the  Ordinances 
of  1914,  Is  as  follows: 

"Sec.  7.  That  portion  of  the  Pleasant  Valley 
Park  and  parkway,  which  extends  from  Oak- 
land avenue  to  Academy  avenue,  shall  be  open 
to  the  public  only  from  sunrise  until  sunset  each 
day." 


Said  Justice  in  directing  a  verdict  In  fa- 
vor of  the  defendant  said: 

"I  will  grant  tbe  motion  on  two  grounds— 
tbe  ground  that  the  ordinance  rendered  tbe  pass- 
ing through  the  parkway  between  sunset  and 
sunrise  illegal  and  therefore  there  can  be  no  im- 
plied invitation  on  the  part  of  the  defendant  to 
travel  over  that  part  of  Bangor  street  Also  on 
the  ground  of  contributory  negligence  of  the 
plaintiff  in  driving  his  automobile  out  of  the 
traveled  part  of  the  highway  on  to  the  sidewalk." 

[1-4]  We  have  frequently  held  that  a  ver- 
dict should  not  be  directed  tor  a  defendant  If 
on  any  reasonable  view  of  the  testimony  the 
plaintiff  can  recover.  Baynes  v.  Billings,  30 
R.  I.  53,  73  Atl.  625.  After  an  examination 
of  the  evidence  we  are  of  the  opinicm  that 
said  Justice  was  not  warranted  In  directing 
a  verdict  upon  the  second  ground  stated  by 
him.  There  was  testimony  upon  which  the 
Jury  might  find  that  at  the  time  the  wheels 
of  the  automobile  first  went  into  said  gully 
Joseph  Reddlngton  was  driving  his  automo- 
bile In  the  traveled  part  of  Bangor  street, 
and  not  on  the  sidewalk  thereof  or  on  land 
east  of  the  sidewalk.  No  witness  except  two 
of  the  women  who  were  passengers  In  the  au- 
tomobile testifies  that  he  was  present  at  the 
time  of  the  accident.  Certain  witnesses  for 
tbe  defendant,  who  examined  the  ground 
near  said  gully  after  the  accident  testified 
that  they  saw  wheel  tracks  to  the  east  of  the 
roadway,  which  wheel  tracks  they  Inferred 
were  made  by  said  automobile.  From  this 
testimony  and  from  the  position  of  the  auto- 
mobile In  the  gully  after  the  accident  an  In- 
ference might  be  drawn  that  Just  before  the 
accident  the  automobile  was  being  driven 
outside  the  traveled  part  of  Bangor  street. 
Apparently  in  the  opinion  of  said  Justice 
these  drcnmstances  produced  a  preponder- 
ance of  the  evidence  In  favor  of  the  defend- 
ant upon  that  Issue.  Witnesses  for  the 
plaintiff,  however,  testified  to  their  examina- 
tion of  the  place  shortly  after  the  accident, 
and  state  that  wheel  tracks  In  tbe  roadway 
which  ran  from  the  north  to  the  edge  of  the 
gully  clearly  appeared  to  them  to  have  been 
made  by  tbe  automobile  lying  in  the  gully. 
It  was  for  the  Jury  to  say  from  the  testimony 
whether  wheel  tracks  of  tbe  automobile  were 
visible  upon  the  ground,  and  to  determine 
what  Inferences,  If  any,  might  properly  be 
drawn  from  their  existence  and  location. 
There  was  also  before  the  Jury  the  testimony 
of  two  witnesses  who  were  In  tbe  car  at  the 
time  of  tbe  accident.  Rose  Marner  and  Jennie 
Sief.  These  witnesses  testified  that  the  au- 
tomobile was  in  tbe  roadway  at  the  time  of 
the  accident,  and  that  they  could  see  the 
road  extending  ahead  of  them  in  front  of  the 
automobile.  At  the  trial  the  defendant  at- 
tacked the  testimony  of  Rose  Marner  on  the 
ground  that  she  had  made  statements,  soon 
after  the  accident,  which  were  inconsistent 
with  testimony  given  by  her  at  the  trial. 
The  defendant  also  criticized  the  testimony 
of  Jennie  Sief,  and  claimed  that  her  state- 


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BEDDINGTON  v.  OETCHELD 


125 


ments  regarding  the  accident  were  exagger- 
ated and  unreliable.  Apparently  said  justice 
did  not  place  much  value  upon  the  testi- 
mony of  either  of  these  witnesses.  The  ques- 
tion, however,  as  to  the  credibility  of  wit- 
nesses is,  in  the  first  Instance,  for  the  Jury, 
and  not  for  the  Judge  presiding ;  nor  Is  the 
Justice  warranted  In  directing  a  verdict  In 
accordance  with  what  he  thinks  Is  the  pre- 
ponderance of  the  evidence.  Upon  motion 
for  a  new  trial  made  by  a  party  who  Is  dis- 
satisfied with  the  verdict  rendered  by  a  Jury, 
a  Justice  who  presided  at  the  trial  Is  Justified 
In  considering,  and  It  is  his  duty  to  consider, 
the  credibility  of  witnesses  and  what,  In  his 
view,  is  the  preponderance  of  the  evidence; 
If  he  believes  the  verdict  to  be  unjust,  he 
should  set  It  aside  and  grant  a  new  trial ;  he 
should  not,  however,  direct  a  verdict  upon 
gudi  grounds,  but  only  upon  the  ground  that 
there  Is  no  legal  evidence  which  would  Justify 
a  contrary  verdict.  Under  our  Constitution 
and  law,  when  the  testimony  is  conflicting 
the  questions  of  the  credibility  of  witnesses 
and  the  preponderance  of  evidence  must,  in 
the  first  Instance,  be  determined  by  a  Jury; 
as  also  they  must  be  finally  determined  by  a 
Jury.  Carr  v.  American  Locomotive  Co.,  31 
R.  I.  234,  77  Atl.  104,  Ann.  Cas.  1912B,  131. 

[S,  I]  We  will  now  consider  the  first  ground 
given  by  said  Justice  for  directing  the  verdict, 
and  also  the  claims  of  the  defendant  with 
referaice  to  his  duty  In  the  premises.  There 
was  evidence  from  which  it  might  properly 
be  found  that  Bangor  street  was  laid  out 
in  the  same  manner  as  an  ordinary  public 
street  In  that  locality,  with  a  sidewalk 
slightly  raised  above  the  surface  of  the  road- 
way, retained  by  a  curbing  of  edgestones, 
with  a  paved  gutter  of  regulation  width; 
that  its  roadway  had  a  hard,  even-rolled  sur- 
face, save  that  for  a  week  or  two  before  the 
accident  said  gully  had  extended  Into  the 
roadway;  that  upon  a  post  at  the  westerly 
comer  of  said  street  and  Ghalkstone  avenue 
there  was  a  sign  of  the  same  size  as  an  ordi- 
nary street  sign,  with  the  words  "Bangor 
Street"  painted  thereon;  that  said  street 
had  remained  In  that  same  general  condition 
for  about  six  years  previous  to  the  accident ; 
that  it  was  generally  regarded  as  a  public 
highway  by  ■petaamt  having  occasion  to  use 
It;  that  It  had  been  constantly  used,  both 
by  day  and  at  night,  by  persons  desiring  to 
pass  back  and  forth  from  Ghalkstone  avenue 
to  the  Pleasant  Valley)  parkway  and  to  sec^ 
tions  at  the  dty  lying  to  the  north  of  said 
parkway;  that  the  defendant  and  his  prede- 
cessor in  title  had  never  given  notice  to  the 
public,  by  signs  or  otherwise,  that  Bangor 
street  was  a  private  way,  or  that  free  pasr 
sage  «jver  It  was  not  permitted  by  the  owners. 
The  existence  of  some  of  these  conditions  tes- 
tified to  by  the  plalntifTs  witnesses  was  de- 
nied by  the  defendant  The  evidence  pre- 
sented proper  Issues  to  be  submitted  for  the 
determination  of  the  Jury  as  to  the  extent  of 
the  permission  or  the  invitation  given  by  the 


defendant  and  his  predecessor  in  title  for  the 
public  use  of  said  Bangor  street  The  de- 
fendant had  been  the  owner  of  the  premises 
for  more  than  a  year  before  the  accident, 
and  he  must  be  held  to  know  of  the  public 
use  whldi  was  being  made  of  said  street 
by  day  and  at  night  If  the  evidence  pre- 
sented by  the  plalntUt  wlilch  we  have  set 
forth  above  was  believed  by  the  Jury,  It  may 
be  found  that  the  owner  knew  that  the  condi- 
tion In  which  he  maintained  this  way  creat- 
ed the  natural  belief  in  the  public  that  It 
was  Invited  to  use  the  way.  From  these 
drcumstances  there  may  be  found  an  tm- 
plied  Invitation  from  the  defendant  to  the  pub- 
lic to  continue  the  use  of  Bangor  street  in 
the  manner  In  which  it  had  been  used  tor 
six  years  at  least  before  the  accident.  If 
the  owner  of  land  by  Invitation,  express  or 
Implied,  Induces  a  person  to  come  upon  his 
land  and  to  cross  over  it,  he  must  use  ordi- 
nary care  to  keep  that  part  of  the  land,  to 
which  sudi  person  is  invited,  safe  for  the 
passage.  Sweeny  v.  Old  Colony  R.  R.  Co.,  10 
Allen  (Mass.)  368,  87  Am.  Dec.  644;  Holmes 
V.  Drew,  151  Mass.  578,  25  N.  E.  22 ;  Furey 
V.  N.  T.  R.  R.  Co.,  67  N.  J.  Law,  270,  61  Atl. 
505 ;  Barry  v.  N.  Y.  R.  R.  Co.,  92  N.  T.  280, 
44  Am.  Rep.  377. 

[7]  Said  Justice  most  have  held  as  a  mat- 
ter of  law  that  because,  by  the  ordinances  of 
Providence,  the  Pleasant  Valley  parkway 
was  open  to  the  public  only  between  sunrise 
and  sunset  any  implied  invitation  of  the  de- 
fendant for  the  public  use  of  Bangor  street 
was  limited  to  th^  same  period.  We  do  not 
agree  with  that  conclusion  of  the  Justice. 
Whatever  may  have  been  the  status  of  a  per- 
son while  he  was  in  said  parkway,  between 
sunset  and  sunrise,  the  duty  of  the  defendant 
would  remain  unchanged  to  use  reasonable 
care  for  the  safety  of  a  person  whom  he  had 
expressly  invited  after  sunset  and  before 
sunrise  to  pass  out  of  said  parkway  onto 
Bangor  street  or  to  pass  across  Bangor  street 
and  into  said  parkway.  An  implied  Invita- 
tion may  be  as  broad  and  unrestricted  as  any 
which  might  be  expressed,  if  from  the  cir- 
cumstances it  appears  to  be  unlimited.  The 
invitation  which  the  law  might  Imply  in  this 
case  would  arise  because  It  was  found  that 
Bangor  street  had  for  years  been  maintained 
by  its  owners  with  the  appearance  of  an  open 
public  highway  at  night  as  well  as  in  the 
daytime ;  that  the  defendant  knew  that  said 
way  was  being  used  at  all  hours  by  many 
persons  who  desired  to  pass  across  said  park- 
way to  the  highways  at  the  north  of  it ;  that 
the  defendant  from  these  circumstances  and 
by  his  acquiescence  in  such  unlimited  use 
led  the  public  to  believe  that  they  were  Invit- 
ed to  so  use  It  If  such  conditions  are 
found — and  nothing  is  found  in  the  conduct 
of  the  defendant  to  limit  the  invitation  to  be 
implied  therefrom — a  person  who  came  upon 
said  way  In  response  to  such  Implied  invita- 
tion is  In  no  different  position  from  one  who 
has  been  expressly  invited  by  the  defendant 


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101  ATLANTIC  REPORTER 


(R.L 


Tbe  defendant  claims  both  thnt  the  evidence 
offered  by  him  and  the  circumstances  shown 
to  exist  there  rebut  the  Implication  of  Invi- 
tation and  also  it  any  Implied  Invitation 
pould  be  found  it  was  clearly  restricted  to  the 
hours  when  the  parkway  was  open  to  the 
public.  Such  ertdence  raises  Issues  which 
should  have  heea  submitted  to  the  Jury. 

As  the  evidence  stands  before  us,  however, 
the  oi-dlnance  of  the  city  of  Providence  with 
regard  to  Pleasant  Valley  parkway  is  Im- 
material. It  appears  that  Bangor  street  did 
not  extend  from  Chalkstone  avenue  to  a 
drive  of  the  Pleasant  Valley  parkway,  but  to 
Rosebank  avenue,  a  public  highway.  The  de- 
fendant Introduced  evidence  which  shows 
that  in  1906  one  Frederick  B.  Shaw  enter- 
ed into  a  contract  with  the  city  of  Provi- 
dence ;  one  of  the  provisions  of  said  contract 
was  that  said  Shaw  should  cause  to  be  con- 
veyed to  the  city  a  certain  strip  of  land 
shown  on  a  plat  annexed  to  said  contract 
"for  highway  purposes" ;  that  in  compliance 
with  said  agreement  on  the  part  of  said  Shaw 
the  Valley  C!ompany,  a  corporation  of  which 
said  Shaw  was  president,  did  convey  to  the 
city  of  Providence  said  strip  of  land.  One  of 
the  provisions  of  this  deed  with  reference 
to  said  strip  was  as  follows: 

"Said  strip  is  hereby  conveyed  for  the  especial 
purpose  of  being  used  and  Improved  as  a  high- 
way and  for  no  other  use  or  purpose  whatever." 

Said  deed  was  approved  as  correct  In  form 
and  satlsfactorj'  by  the  assistant  city  so- 
licitor of  Providence,  and  said  deed  was  duly 
recorded.  It  appears  by  plats  Introduced  in 
evidence  that  said  strip  so  conveyed  to  the 
city  of  Providence  for  a  highway  Is  that  part 
of  Rosebank  avenue  which  extends  from  the 
north  line  of  Bangor  street  about  700  feet 
to  another  portion  of  Rosebank  avenue  which 
runs  into  River  avenue,  a  public  highway. 
This  is  the  only  e\'ldeuce  with  relation  to 
Rosebank  avenue  which  we  find  among  the 
papers  certified  to  us.  It  does  appear  In 
the  transcript  of  evidence  that  the  defendant 
Introduced  and  read  to  the  jury  a  resolution 
of  the  city  council  dedicating  certain  lands 
for  park  and  parkway  purposes  and  provid- 
ing for  the  care  of  Pleasant  A'alley  parkway, 
and  also  Introduced  certain  plats  showing 
the  extent  of  Pleasant  Valley  parkway.  By 
stipulation  of  counsel  said  resolution  and 
l>lat8  were  withdrawn  from  the  papers  In  the 
case  at  the  close  of  the  trial.  Whether  the 
resolution  and  plats  so  withdrawn  throw 
light  upon  the  present  condition  of  Rosebank 
uveuue  we  do  not  know.  If  Rosebank  av- 
fnue  is  a  public  highway  running  through 
said  park  the  first  ground  upon  which  said 
Justice  directed  a  verdict  has  no  foundation 
In  fact.  If  said  Rosebank  avenue  is  not  a 
public  highway,  but  a  part  of  said  Pleasant 
Valley  parkway,  from  the  facts  which  tbe 
Jury  might  find  from  the  testimony.  It  can- 
not be  siUd  as  a  matter  of  law  that  any  im- 


plied invitation  of  the  detendant  for  the 
public  use  of  Bangor  street  was  limited  by 
the  terms  of  the  ordinances  of  the  dty  of 
Providence  with  reference  to  parks. 

After  examination  we  find  no  merit  in  any 
of  the  other  exceptions  taken  by  the  plain- 
tiff. The  plaintiff's  exception  to  the  direc- 
tion of  a  verdict  is  sustained ;  her  other  ex- 
ceptions are  overruled. 

The  case  is  remitted  to  the  superior  court 
for  a  new  trlaL 


(iO  R.  I.  402) 
NORMAN  et  aL  v.  PRINC3B  et  aL    (No.  387.) 

(Snpreme   Court  of  Rhode  Island.     June  37, 
1017.) 

1.  WILLS  <S=s>540  — OoNBTBUcnow  — RasiDtnc 
or  Income. 

A  will  directing  that  trustees  pay  the  sum 
of  $20,000  annually  to  testator's  wife  and  "di- 
vide the  residue  of  said  net  income  *  *  *  of 
said  trust  estate  into  nine  equal  shares"  showed 
that  it  was  testator's  intent  that  payment  of  the 
income  to  his  wife  should  be  personal  to  her, 
and  should  not  continue  to  her  estate;  and 
hence,  on  decease  of  the  widow,  the  annual 
payments  from  the  income  to  which  she  would 
have  been  thereafter  entitled  had  she  lived  fol- 
lowed the  destination  of  the  several  shares  of 
the  residuary  income. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  it  1164,  1302-1309.] 

2.  Wills    iS=>603(1)  —  Constbuction— Poweb 
OF  Disposition. 

A  provision  of  a  will  that  payment  of  a 
share  of  the  residuary  income  should  be  made 
"as  the  trustees  hereof  for  the  time  being  in  the 
uncontrolled  absolute  discretion  or  pleasure  of 
said  trustees  shall  see  fit"  created  a  valid  and 
absolute  power  of  disposition ;  tlie  woixi  "trus- 
tee" being  descriptive,  and  not  controlling  as  to 
his  character  in  the  disposition  of  such  share. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  i  1655.] 

Case  Certified  from  Superior  Court,  New- 
port County. 

Suit  by  Guy  Norman  and  another,  trustees, 
against  Abby  Norman  Prince  and  others,  for 
construction  of  will  and  for  instructions. 
Case  certified.  Instructions  according  to 
opinion. 

Baker  &  Splcer,  of  Providence,  for  com- 
plainants. Eliot  6.  Parkhurst  and  Edwards 
&  Angell,  all  of  Providence  (Walter  F.  An«eU, 
qC  Providence,  of  coons^),  for  certain  re- 
spimdrats.  James  B.  lAttiefield,  of  Provi- 
dence, guardian  ad  litem  of  minor  defend- 
ants. Royal  H.  Gladding,  of  Providence,  rep- 
resentative of  conthigent  interests.  Robert 
T.  Burbank,  of  Providence,  for  re^)ondent 
Dorothy  P.  N.  Metcalt. 

SWEETLAND,  J.  This  is  a  suit  In  equity 
brought  by  tbe  trustees  under  the  will  of 
George  H.  Norman,  late  of  Newport,  for  the 
construction  of  said  will  and  for  Instructions. 

The  questions  involved  relate  to  the  con- 
struction of  the  provisions  contained  In  the 
twelfth  clause  of  said  will.  By  said  clause 
tbe  testator  devises  and  bequeaths  his  re- 


AssFor  other  casea  sea  wune  topic  and  KBY-NUMBER  In  all  Key-Numbered  UlgesU  and  Indeze* 


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R.I.) 


NORMAN  V.  PRINCB 


127 


sidnary  estate  to  Ws  son  George  H.  Norman, 
Jr.,  and  his  heirs  In  trust  By  the  terms  of 
the  tmst  the  trustee  Is  directed  to  dispose  of 
the  net  Income  of  the  trust  estate  as  follows: 
(1)  To  pay  from  said  net  Income  the  sum  of 
$20,000  annually  to  the  testator's  wife,  Abby 
D.  K.  Norman,  In  equal  quarter  yearly  in- 
stallments ;  (2)  to  dlTlde  the  residue  of  said 
net  income  into  nine  equal  shares,  and  as  of- 
ten as  once  in  six  months  to  pay  <me  of  said 
shares  to  each  of  eight  of  the  testator's  nine 
children,  excluding  from  said  provision  the 
testator's  son  Hugh  K.  Norman,  and  upon 
the  decease  of  each  of  sold  elRht  children  to 
pay  the  share  of  Income  to  which  said  child 
wonld  have  been  entitled  as  said  child  shall 
by  win  appoint.  In  default  of  appointment, 
to  the  lawful  Issue  of  said  child,  and  In  de- 
fanlt  of  appointment  and  Issue,  to  the  testa- 
tor's then  next  of  kin,  omitting  and  excluding, 
howeTcr.  the  testator's  son  Hugh  and  his  de- 
scendants, if  any:  and  (3)  to  pay  the  re- 
fflalulng  or  ninth  share  of  Income  In  whole  or 
in  part  at  such  time  or  times  as  the  trustee 
shall  select  to  testator's  said  son  Hugh  or  to 
Htagh's  wife  or  to  any  child  or  children  of 
Hugh  or  to  any  other  person  or  persons 
whomsoever,  as  the  trustee  for  the  time  be- 
ing In  the  uncontrolled  absolute  dl6cretl<Hi  or 
pleasure  of  said  trustee  shall  see  fit. 

In  said  will  the  testator  directs  that  upon 
the  decease  of  the  survivor  of  his  widow  and 
all  of  his  nine  children  and  when  the  young- 
est living  grandchild  shall  have  reached  21 
the  whole  principal  of  said  trust  shall  be 
divided  by  the  trustee  into  eight  equal  shares, 
said  shares  to  be  set  apart  so  that  they  shall 
awiertaln  or  relate  to  said  eight  children, 
one  share  to  each  child,  each  share  so  ap- 
pertaining to  each  child  to  be  paid  absolutely 
and  in  fee  simple,  free  from  every  trust,  as 
said  child  may  by  will  appoint,  in  default 
of  appointment,  to  the  lawful  issue  of  said 
child,  and  In  default  of  appcdntment  and 
issne,  to  the  testator's  then  next  of  kin;  the 
descendants  of  said  Hugh,  however,  being 
specifically  excepted. 

It  was  further  provided  in  said  will  that  said 
George  H.  Norman,  Jr.,  might  at  any  time 
or  times  appoint  one  or  two  persons  to  act  as 
trustee  or  trustees  under  said  will,  both  with 
him  and  after  he  should  have  ceased  to  act 
as  trustee  by  death  or  otherwise,  and  they 
and  the  survivor  ot  them  and  every  other 
person  appointed  under  the  provisions  of  said 
will  should  have  every  right,  ixjwer,  privi- 
lege, and  authority  conferred  by  said  will  on 
Geoi^ge  11.  Norman,  Jr.,  as  trusted. 

George  H.  Norman,  Jr.,  duly  qualified  and 
acted  as  sole  trustee  under  said  will  until 
February  13,  1908,  upon  which  date.  In  ac- 
cordance with  the  provision  of  the  will,  he 
duly  appointed  his  brothers  Guy  Norman  and 
Maxwell  Norman  as  trustees  to  carry  out 
said  trust  On  said  Pebruary  13,  1908,  the 
said  George  H.  Norman,  Jr.,  died,  and  since 
that  date  the  said  Guy  and  Maxwell  Nor- 
man, the  complainants  here,  have  acted  and 


are  now  acting  as  trustees.  On  October  30, 
1000,  the  said  Hugh  K.  Norman  died,  leaving 
no  issue.  His  widow,  who  was  the  sole  bene- 
fldaiy  tinder  his  will,  and  who  was  duly  ap- 
pointed administratrix  with  the  will  annexed 
of  his  estate,  individually  and  as  such  admin- 
istratrix has  executed  a  release  of  all  claims 
to  the  estate  of  the  testator,  George  H.  Nor- 
man. Abby  D.  K.  Norman,  widow  of  George 
H.  Norman,  the  testator,  died  on  September 
6,  1915.  Certain  of  the  grandchildren  of  the 
testator  have  not  yet  reached  the  age  of  21 
years. 

The  present  trustees  and  their  predecessor 
as  trustee,  said  George  H.  Norman,  Jr.,  up 
to  the  time  of  the  decease  of  the  testator's 
wiaow  made  the  annual  payments  from  in- 
come to  her  In  accordance  with  the  provisions 
of  the  will,  and  also,  as  directed,  paid  the 
share  of  Income  to  each  of  the  eight  children 
of  the  testator  named  In  his  will  as  afore- 
said, the  share  of  Income  of  George  H.  Nor» 
man,  Jr.,  being  paid  after  his  death  to  the 
appointees  under  his  will ;  also  said  trustees 
distributed  said  ninth  share  of  income  from 
time  to  time  In  varying  amounts  and  propor- 
tions with  the  knowledge,  consent,  and  ac- 
quiescence of  the  defendants  to  the  widow 
and  dilldren  of  the  testator.  Including  Hugh 
K.  Norman  and  said  George  H.  Norman,  Jr., 
during  their  respective  lives,  and  after  their 
respective  deaths  to  the  widow  and  surviving 
children  of  the  testator,  to  the  widow  of 
Hhgh  K.  Norman,  and  to  the  appointees  of 
Income  of  said  George  H.  Norman,  Jr. 

Upon  the  decease  of  the  testator's  widow 
the  question  arose  as  to  the  future  disposition 
of  the  annual  payments  of  $20,000  to  which 
she  would  be  entitled  if  still  alive,  and  also 
the  question  arose  as  to  the  possible  Invalid- 
ity of  the  provision  of  said  twelfth  clause  of 
the  will  providing  for  the  disposition  of  said 
ninth  share  of  income.  In  their  bill  the  trus- 
tees pray  that  their  action  in  disposing  here- 
tofore of  said  ninth  share  of  Income  in  ac- 
cordance with  the  directions  of  the  will  be 
approved,  and  they  farther  pray  that  the 
court  construe  said  will  and  determine  the- 
following  questlcas:  (1)  To  whom  the  anntial 
payments  of  $20,000  directed  by  the  twelfth 
clause  of  said  will  to  be  paid  "annually  to 
my  wife  In  equal  quarter  yearly  Install- 
ments" from  "the  net  Income,  dividends,  and 
profits  of  said  trust  estate"  became  payable 
(until  the  distribution  of  principal)  upon  the 
decease  of  the  testator's  widow,  said  Abby 
D.  K.  Norman ;  (2)  what  disposition  the  trus- 
tees are  authorized  and  empowered  to  maKe 
(until  the  distribution  of  principal)  of  "the 
remaining  [or  ninth]  share  of  the  said  nine 
shares  or  parts"  of  the  Income,  dividends, 
and  profits  of  said  trust  estate. 

The  first  question  Involves  a  consideration 
of  whether  upon  the  decease  of  said  Abby  D. 
K.  Norman  the  annual  payments  of  income 
to  which  she  would  have  been  thenceforth 
entitled  had  she  lived  should:  (a)  Follow  the 
destination  of  the  several  shares  of  Income 


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101  ATLANTIC  HEPOUTER 


(RI. 


directed  by  the  testator  to  be  divided  from 
tbe  "reeldue  of  said  net  Income,  dividends, 
and  profits  of  said  trust  estate" ;  or  (b)  fol- 
low the  estate  of  said  Abby  D.  K.  Norman 
and  be  payable  as  her  Intestate  property  to 
her  next  of  kin ;  or  (c)  be  deemed  Intestate 
property  of  Ueorge  H.  Norman  and  payable  to 
his  next  of  Idn. 

[1]  In  our  oi^lon,  upon  the  decease  of  the 
testator's  widow  the  annual  payments  from 
the  Income  of  $20,000  to  which  she  would 
have  been  thereafter  entitled  had  she  lived 
followed  the  destination  of  the  several  shares 
of  residuary  income.  The  trustees  by  the 
twelfth  clause  of  the  will  are  directed  to  pay 
"the  sum  of  $20,000  annually  to  my  wife" 
and  "to  divide  the  residue  of  said  net  income 

•  ♦  ♦  of  said  trust  estate  into  nine  equal 
shares."  It  was  the  obvious  Intent  of  the 
testator  that  the  payment  of  Income  to  his 
wife  should  be  personal  to  her,  for  her  com- 
fort and  support  during  her  life,  and  should 
not  continue  to  her  estate.  The  testator  di- 
rected the  trustees  after  the  annual  payment 
of  $20,000  from  the  net  Income  of  the  trust 
estate  to  his  widow  to  divide  the  residue  of 
said  net  Income  Into  nine  equal  shares.  The 
residue  Intended  Is  all  that  part  of  the  net 
Income  which  shall  remain  annually  after 
the  payments  directed  have  been  made  to 
the  testator's  widow. 

After  the  death  of  the  widow  the  annual 
payment  to  her  of  $20,000  ceased,  and  said 
$20,000  each  year  falls  into  and  should  It- 
self be  regarded  as  part  of  the  residue  of 
said  net  Income  after  all  payments  to  the 
widow  have  been  made  In  accordance  with 
the  provisions  of  the  trust.  In  Weston  v. 
Weston,  125  Mass.  268,  where  the  residue 
was  given  to  trustees  to  pay  an  annuity  of 
$1,000  to  N.  and  L.  during  the  continuance  of 
the  trust,  It  was  held  after  Wa  death  during 
tlie  continuance  of  the  trust  that  the  annuity 
was  not  payable  to  her  administrator.  The 
court  sald: 

"Tbe  clause  creating  it  [the  annuity],  being 
A'ithout  words  of  inheritance  or  succession,  must 
be    construed    as    giving    an    annuity    during 

•  •  •  the  term  of  the  trust.  If  (L.)  should 
live  ao  long,  and,  if  she  should  not,  for  her  own 
life  only." 

In  Bates  v.  Barry,  125  Mass.  83,  28  Am. 
Rep.  207,  where  a  testator  had  directed  that 
"five  hundred  dollars  per  year  for  ten  years 
be  paid  over  to  my  niece  A.,"  It  was  held 
that  upon  the  death  of  A.  within  the  ten 
years  her  administrator  was  not  entitled  to 
further  payment,  the  court  saying: 

"As  there  are  no  words  of  inheritance  or  suc- 
cession in  the  bequest,  it  must  lie  construed  as 
giving  an  annuity  for  ten  years,  if  tiie  annuitant 
should  [live]  so  long ;  and  if  slie  should  not,  for 
her  life  only." 

See  Butler  v.  Butler,  40  R.  I. ,  101  Atl. 

116;  Walcefleld  v.  Small,  74  Me.  277;  Sand- 
ford  v.  Blaise,  45  N.  J.  Eq.  248,  17  AU.  812. 

[2]  As  to  the  second  question  presented  by 
the  bill,  we  are  of  the  opinion  that  the  pro^ 
vision  relating  to  the  disposition  of  the  ninth 


share  of  income  Is  valid  and  amoimts  to  the 
creation  of  an  al>80lute  power  of  disposition. 
The  will  provides  for  the  payment  of  said 
ninth  share  of  the  residuary  Income  "as  the 
trustee  hereof  for  the  time  being  In  the  un- 
controlled absolute  discretion  or  pleasure  of 
said  trustee  shall  see  fit"  Said  provision 
Imposes  no  trust  or  obligation  with  respect 
to  the  disposition  of  said  ninth  share  of  in- 
come. By  the  twelfth  clause  of  said  will  the 
testator's  residuary  estate  is  given  to  his 
son  Geoi^e  H.  Norman,  Jr.,  in  trust  As 
trustee  the  said  George  H.  Norman,  Jr.,  or 
the  trustees  for  the  time  being,  are  directed 
to  pay  $20,000  of  the  net  income  of  said  trust 
estate  annually  to  the  widow,  to  make  divi- 
sion of  the  residue  of  said  income  into  nine 
shares,  and  to  pay  eight  of  said  shares  to 
persons  definitely  designated.  From  the  very 
broad  language  of  the  provision  as  to  the 
dl8i>osltlon  of  the  said  ninth  share  of  net 
income  the  testator's  Intent  can  readily  ba 
found  not  to  bequeath  said  share  in  trust  for 
Indefinite  beneficiaries;  but  the  provision 
should  be  regarded  rather  as  a  bequest  of 
said  share  to  the  trustees  with  an  arbitrary 
power  of  disposition.  The  use  of  the  words 
"trustee"  and  "trustees"  in  this  clause  of  the 
will  is  not  controlling  as  to  his  or  their  char- 
acter in  the  disposition  of  said  ninth  share, 
but  said  words  must  i>e  regarded  as  descrip- 
tive. In  Glbbs  T.  Rumsey,  2  Ves.  &  B.  294, 
the  testatrix  bequeathed  certain  estate,  real 
and  per8(Hial,  to  two  persons  named  upon 
trust  to  sell;  and,  after  making  certain  be- 
quests out  of  the  money  derived  from  such 
sale  the  testatrix,  "proceeded  thus,  'I  give 
and  bequeath  all  the  rest  and  residue  of  the 
moneys  arising  from  the  sale  of  my  estate 
and  all  the  residue  of  my  p^^onal  estate 
after  payment  of  my  debts,  legacies  and  fu- 
neral expenses  and  the  expenses  of  proving 
this  my  will  unto  my  said  trustees  and  ex- 
ecutors (the  said  Henry  Rumsey  and  James 
Riunsey)  to  be  disposed  of  unto  such  person 
and  persons  and  in  such  manner  and  form 
and  in  such  sum  and  sums  of  money  as  they 
In  their  discretion  shall  think  proper  and 
expedient' "  The  Master  of  the  Rolls  held 
that  this  provision  created  a  purely  arbitrary 
power  of  disposition  according  to  a  discretion 
which  no  court  can  either  direct  or  control, 
and  not  a  trust  for  an  indefinite  purpose.  Al- 
though the  testator  in  the  case  at  bar  has 
coupled  this  power  of  disposition  of  a  por- 
tion of  the  income  of  the  trust  estate  with 
certain  trust  provlslops,  we  feel  warranted 
in  construing  this  provision  as  we  have  In 
accordance  with  th«t  testator's  obvious  intent 
See  5  Harvard  Law  Review,  380. 

We  accordingly  approve  the  action  of 
George  H.  Norman,  Jr.,  and  of  the  complain- 
ant trustees  In  the  dii>posltlon  which  he  and 
they  have  made  of  wild  ninth  share  of  in- 
come. We  Instruct  said  trustees  that  the  net 
income  of  the  trust  estate  arising  after  the 
death  of  the  testator's  widow  shall  be  di- 
vided into  nine  equal  shares,  that  eight  oC 


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said  shares  are  to  be  disposed  of  in  accord- 
ance with  tlie  provisions  of  said  twelfth 
clause  of  the  will,  and  that  tlie  remaining 
share  Is  held  by  the  trustees  to  be  disposed 
of  by  them  in  their  discretion  in  accordance 
with  the  power  of  disposition  given  to  them 
by  the  testator.  We  also  find  that  the  provi- 
sl(Hi  relating  to  said  power  of  disposition  is 
valid. 

On  July  2d  the  parties  may  present  to  us  a 
form  of  decree  in  accordance  with  this 
opinion. 

(W  R.  I.  S48) 

McGinn  t.  b.  h.  gLiAdding  dey  goods 

CO.    (No.  5024.) 

(Supreme  Coart  of  Rhode  Island.    June  IS, 
1917.) 

1.  Landlokd  A.ND  Tenant  «=»47— CoNDmoN 
or  Lbabe. 

Where  the  lessor  of  a  stable,  prior  to  exe- 
cution of  the  lease,  stated  that  the  lessee  dry 
fcoods  company  need  not  take  the  stable  unless 
it  was  high  enough  to  accommodate  any  deliv- 
ery wagons,  the  lessor,  15  days  later,  on  execu- 
tion and  delivery  to  him  of  an  unconditional 
lease,  might  assume  that  the  letting  was  com- 
plete and  unconditionaL 

[£d.  Note.— For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  fi  112,  n3.] 

2.  Landlobd  and  Tenant  <S=>231(6)— Condi- 
tion or  Leabr— Stjtficienct  of  Evidence. 

In  an  action  for  rent  by  the  lessor  of  a  sta- 
ble, evidence  held  insufficient  to  show  that  the 
lease  was  executed  and  delivered  on  condition 
that  the  stable  entrance  was  high  enough  to  ao- 
commodate  delivery  wagons  ordered  by  the  lessee. 
(Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  g§  033,  984.) 

3.  Witnesses  «=»37(1)— Knowucdob— Exxcu- 
noN  or  Lease. 

In  an  action  for  rent,  where  the  officer  who 
signed  the  lease  for  defendant  corporation  died 
before  salt,  testimony  of  a  witness  not  present 
at  execution  and  delivery  of  the  lease  attempt- 
ing to  show  that  the  person  who  signed  the 
lease  signed  in  reliance  on  statements  previously 
made  by  the  lessor  at  an  interview  between  him 
and  the  witness  in  the  presence  of  the  person 
i)rho  signed  was  incompetent  and  inadmissible. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  iS  60,  83,  87.] 

4.  Evidence  «=»441(4)— Pakol  Bvidknok  Af- 

rsCTINO  WRITINQ— IjEAHE. 

In  an  action  for  rent  of  a  stable,  where 
there  was  an  unconditional  defivery  of  the  lease 
by  the  lessee  corporation  to  the  lessor,  evidence, 
on  behalf  of  the  lessee,  relating  to  statements 
made  by  the  lessor  prior  to  execution  and  deliv- 
ery of  the  lease,  tending  to  show  that  the  lessee's 
obligation  was  conditional,  was  inadmissible  as 
varying  a  writing. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  §{  1736-1744,  2037.] 

6.  Landlobd  and  Tenant  «=5>28(1)— Misrep- 

BE5IENTATI0W    BY  LANDLOBD. 

Where  the  lessor  of  a  bam  said  that  he 
would  "guarantee  this  bam  is  high  enough  to 

carry  any delivery  wagon  that  ever 

was  built,"  the  statement  was  not  a  misstate- 
ment of  fact  within  the  lessor's  knowledge,  he 
never  having  seen  delivery  wagons  ordered  by 
the  lessee  dry  goods  company,  and  the  agents  of 
the  dry  goods  company  negotiating  the  lease 
knowing  that  he  had  no  more  actual  knowledge 


of  them  or  their  height  than  they  had;  the  les- 
sor's remark  being  merely  dealers  talk. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  S|  82,  83.] 

6.  Landlobd  and  Tenant  «=»109(5)  —  Sub- 
bender  BY  Tenant. 

The  mere  sending  of  the  key  to  a  leased  sta- 
ble by  the  lessee  to  the  lessor  without  more  was 
not  a  surrender  by  the  tenant  and  acceptance  by 
the  landlord. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent  Dig.  {  865.) 

7.  Landlord  anh  Tenant  «=>109(4)  —  Sub- 
rendeb  by  Tenant— Acceptance  — Belet- 

TING. 

Where  the  lessor  of  a  stable,  after  the  lessee 
sent  the  key  to  him,  relet  to  a  third  party  with- 
out notice  to  his  lessee,  without  knowledge  on 
the  lessee's  part,  and  without  its  assent,  the 
reletting  operated  as  an  acceptance  of  a  sur- 
render by  the  lessee. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent  Dig.  f  364.] 

8.  Landlobd  and  Tenant  4=3232— Rent— In- 

TEBEST. 

A  lessee  liable  for  rent  is  liable  for  interest 
at  the  rate  of  6  per  cent,  from  the  date  of  ju- 
dicial demand,  that  is,  the  date  of  service  of 
the  writ;   there  having  been  no  prior  demand. 

(Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent  Dig.  |S  935-939.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  Counties ;  WUlard  B.  Tan- 
ner, Presiding  Justice. 

Action  by  Albert  T.  McGinn  against  the 
B.  H.  Gladding  Dry  Goods  Company.  There 
was  a  decision  for  defendant,  and  plaintiff 
excepts.  Exceptions  sustained,  and  case  re- 
mitted to  superior  court,  with  direction  to 
enter  Judgment  for  plaintiff  In  a  sum  stat- 
ed, with  interest. 

Cooney  &  Cahill,  of  Providence,  for  plain- 
tiff. Claude  R.  Branch  and  Edwards  &  An- 
gell,  all  of  Providence,  for  defendant 

PARKHTJRST,  C.  J.  This  Is  an  action  for 
breach  of  a  covenant  to  pay  the  rent  cove- 
nanted and  agreed  to  be  paid  in  a  certain 
lease  from  the  plaintiff  to  the  defendant  cor- 
iwratlon.  The  lease  in  evidence  bears  date 
June  11,  1907,  but  appears  to  have  been 
signed  by  the  parties  on  June  26, 1907,  and  to 
have  been  acknowledged  by  the  plaintiff  be- 
fore a  notary  public  June  26,  1907,  and  to 
have  been  duly  recorded  in  Providence  on 
July  15,  1907.  The  premises  are  described 
as  "a  certain  stable  at  rear  of  No.  386  Foun- 
tain street.  In  said  city  of  Providence,  com- 
prising twenty  (20)  stalls  and  one  (1)  box 
BtaU  and  all  the  floor  space  above  the  same." 
The  lease  is  in  common  form,  containing  the 
usual  covenants,  and  is  for  the  term  of  three 
years  from  July  1,  1907,  to  July  1,  1910.  The 
amended  declaration  in  the  first  count  alleges 
nonpayment  of  rent  in  the  sum  of  $1,158; 
in  the  second  count,  alleges  breach  of  the 
covenant  to  keep  the  interior  of  the  prem- 
ises in  repair  and  claims  damages  therefor. 
No  evidence  in  support  of  this  second  count 
was  offered,  and  It  is  therefore  immaterial. 


(bsf  or  odMr  esses  ■ 
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101  ATIiANTIC  HEPORTBB 


(R.I. 


Defendant's  first  plea  to  first  count  says 
that  the  lease  Is  not  its  deed.  Defendant's 
second  plea  to  first  count  alleges  payment 
of  rent  up  to  July  12,  1907,  and  a  surrender 
of  the  premises  to  the  plaintiff  and  his  ac- 
ceptance thereof  on  the  12th  day  of  July, 
1907.  The  suit  was  brought  after  the  ex- 
piration of  the  term,  by  writ  of  summons  dat- 
ed and  served  March  31,  1911.  Thereafter, 
Jury  trial  having  been  waived,  the  case  was 
tried  before  the  presiding  Justice  of  the  su- 
perior court  in  Providence  without  a  Jury 
September  27,  1916,  upon  the  issues  tender- 
ed by  the  first  count  of  the  amended  declara- 
tion and  the  pleas  thereto.  September  29, 
1916,  the  presiding  Justice  filed  his  decision, 
in  favor  of  the  defendant,  and  thereafter  in 
due  time  the  plaintiff  prosecuted  his  bill  of 
exceptions  to  this  court,  and  the  case  Is  now 
before  us  upon  said  bill  of  exceptions.  The 
exceptions  alleged  in  the  bill  are  six  in  num- 
ber. Exceptions  first  to  fifth.  Inclusive,  are 
based  upon  the  admission  of  evidence  offered 
by  defendant  and  objected  to  by  the  plaintiff. 
Kxception  sixth  is  based  upon  the  decision 
of  the  Justice  in  favor  of  the  defendant. 

It  appeared  in  evidence  that  negotiations 
between  the  plaintiff  and  certain  officers  rep- 
resenting the  defendant  corporation  were  be- 
gun some  time  in  June,  1907,  looking  to  a 
lease  of  the  plaintiff's  stable  above  describ- 
ed to  the  defendant,  and  the  plaintiff  put  In 
evidence  a  certified  copy  of  the  recorded  lease 
above  described.  None  of  the  witnesses  on 
cither  side  were  able  to  fix  the  exact  date  of 
such  negotiations,  but  all  admitted  that  they 
were  In  June,  1907.  We  are  left  to  infer  that 
these  negotiations  were  about  the  llth  day  of 
June,  1907,  since  that  is  the  first  date  ap- 
pearing in  the  lease,  which  was  admitted  to 
have  been  signed  and  delivered  by  the  par- 
ties. It  also  appears  that  the  lease  was  pre- 
pared by  plaintiff's  attorney  and  sent  to  de- 
fendant by  plaintiff;  and  it  appears  by  said 
lease  that  the  same  was  signed  by  both  par- 
ties and  acknowledged  by  the  plaintiff  June 
26,  1907.  It  is  not  disputed  that  the  lease 
was  signed  by  the  defendant's  proper  officer, 
duly  authorized,  that  he  held  it  in  his  pos- 
session about  a  week  before  returning  It  to 
plaintiff,  and  that  It  was  delivered  to  the 
plaintiff  by  mail;  but  the  defendant  claimed 
and  attempted  to  prove  that,  although  the 
lease  is  absolute  on  its  face,  and  was  de- 
livered to  the  plaintiff  himself,  it  was  nev- 
ertheless executed  and  delivered  upon  the 
condition  that  It  was  not  to  be  binding  upon 
the  parties,  unless  it  later  appeared  that  the 
stable  would  permit  of  the  entry  therein  of 
certain  new  delivery  wagons  which  the  de- 
fendant had  ordered  to  be  built  for  it,  and 
as  to  the  exact  height  of  which  at  the  time 
of  the  negotiations  in  June,  1907,  the  defend- 
ant was  not  fully  advised.  It  appears  that 
certain  officers  and  employes  of  the  defend- 
ant, including  William  E.  Aldred,  then  presi- 
dent of  the  defendant  and  who  afterwards 
executed  the  lease,  and  Arthur  Ij.  Aldred, 


then  vice  president,  and  the  defendant's  su- 
perintendent and  delivery  clerk,  went  to  In- 
spect the  plaintifTs  stable,  and  there  met  the 
plaintiff,  presumably  about  June  11,  1907; 
that  they  examined  the  premises  very  care- 
fully, and  found  that  the  location  and  size 
of  the  stable  and  its  general  accommodations 
were  quite  suitable  for  their  purpose;  and 
they  admit  that  they  needed  to  use  the 
stable  at  once  and  were  very  anxious  to  get 
it  It  is  claimed  by  the  defendant's  witness- 
es and  denied  by  the  plaintiff  that  at  that 
time  mention  was  made  of  the  fact  that  new 
delivery  wagons  had  been  ordered  and  not 
yet  received,  and  that  It  was  a  question 
whether  or  not  the  entrance  to  the  stable 
was  high  enough  to  admit  of  the  entiy  of 
these  new  wagons.  And  the  defendant's  wit- 
nesses further  claim  that  at  that  time  the 
plaintiff  assured  them,  emphatically,  with 
certain  profane  words,  that  he  would  "guar- 
antee this  barn  Is  high  enough  to  carry  any 
delivery  wagon  that  ever  was 


buUt"  And  Mr.  Arthur  L.  Aldred  testifies 
that  after  considering  all  other  phases  of 
the  situation  he  (A.  L.  Aldred)  said,  "All 
right;  under  those  conditions,  barn  is  high 
enough  to  carry  delivery  wagons,  we  will 
take  it;"  and  that  McGinn  then  said,  "All 
right,  you  don't  have  to  take  it,  if  it  isnt 
because  it  wouldn't  be  any  good  to  you." 
All  of  this  Is  denied  by  the  plaintiff.  This 
Interview  is  the  only  interview  which  the 
evidence  shows  to  have  taken  place  betwewi 
the  plaintiff  and  the  defendant's  officers  with 
reference  to  the  negotiations  for  a  lease  and 
prior  to  the  execution  thereof  and  Its  deliv- 
ery to  the  plaintiff  by  mail  on  or  about  June 
26,  1907.  The  admission  of  the  testimony  re- 
cited above  from  several  witnesses  In  sup- 
port of  the  defendant's  claim  that  the  lease 
was  executed  and  delivered  by  the  defendant 
upon  condition  as  above  set  forth  was  object- 
ed to  on  behalf  of  plaintiff,  and  exceptions 
thereto  were  duly  taken,  and  these  form  the 
basis  of  exceptions  first  to  fifth,  inclusive,  in 
the  bill  of  exceptions. 

The  evidence  shows  that  the  defendant  was 
In  great  need  of  this  stable,  and  that  by  its 
agents  and  servants  it  took  possession  of 
the  stable  immediately  after  the  above  Intet^ 
view  to  clean  up  and  make  repairs  and  placed 
several  horses  in  the  stable  without  waiting 
for  the  execution  of  a  lease ;  that  thereafter 
on  the  26th  of  June,  1907,  the  lease  without 
any  condition  was  executed  and  acknowledg- 
ed by  plaintiff,  and  was  executed  by  defend- 
ant and  delivered  to  plaintiff  as  above  shown, 
and  that,  without  any  protest  or  mention  as 
to  the  absolute  and  unconditional  terms  of 
the  lease,  the  defendant  continued  after  the 
execution  and  delivery  of  the  lease  to  oc- 
cupy and  use  the  premises  for  several  horses 
and  at  least  one  wagon;  that  nothing  was 
said  at  the  time  of  execution  and  delivery 
by  defendant  or  any  one  on  its  behalf  to 
plaintiff  about  any  conditional  execution  and 
delivery.     It  thus  appears  that  some  two 


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weeks  elapsed  between  the  interrlew  on  or 
about  June  11,  1907,  and  the  execution  and 
delivery  about  June  26,  1907,  during  which 
time,  for  all  that  appeared  to  the  plaintiff, 
the  defendant  might  have  ascertained  that 
the  height  of  the  stable  entrance  was  suffi- 
cient for  the  entry  of  the  new  wagons. 
There  is  nothing  to  show  that  at  the  time 
when  the  unconditional  lease  was  executed 
and  delivered  between  the  parties,  the  plain- 
tiff had  any  idea  that  the  delivery  then  made 
by  the  defendant  was  supposed  by  the  de- 
fendant to  be  conditional.  The  talk  about 
the  height  of  the  delivery  wagons  was  pre- 
liminary. It  was  within  the  defendant's 
power  to'  have  ascertained  their  exact  height 
and  to  have  Informed  itself  in  the  time  which 
Intervened  whether  the  stable  entrance  was 
high  enough  to  admit  them.  The  plalntlfT 
had  no  knowledge  or  means  of  knowledge  as 
to  the  height  of  the  wagons. 

[t]  Assuming  that  the  plaintiff  in  fact  said 
on  or  about  June  11,  1907,  all  ttaat  the  de- 
fendant's witnesses  testified,  plaintiff  might, 
on  June  26,  1007,  upon  the  execution  and  de- 
livery to  him  of  the  unconditional  lease,  as- 
sume that  the  letting  was  complete  and  un- 
conditional. There  was  no  meeting  of  the 
minds  of  the  parties  upon  the  subject  of  con- 
ditional letting  at  the  time  of  the  execution 
and  delivery  of  the  lease.  It  further  appears 
that  defendant  continued  to  occupy  the  stable 
with  horses  and  at  least  one  wagon  after 
the  execution  and  delivery  of  the  lease  up 
to  some  time  in  July  or  August,  1907,  which 
does  not  definitely  appear.  It  further  ap- 
pears that  at  some  date  not  definitely  fixed 
between  the  10th  and  15th  of  July,  1907,  one 
of  the  new  delivery  wagons  arrived  in  Provi- 
ilence,  and  that  on  such  arrival  an  attempt 
was  made  to  put  the  new  wagon  Into  the 
stable,  and  It  was  found  after  several  trials 
that  the  height  of  the  entrance  was  not  suf- 
ficient to  allow  the  wagon  to  enter;  that 
thereupon  the  representatives  of  the  defend- 
ant, Mr.  A.  L.  Aldred,  Mr.  Steed,  the  super- 
intendent, and  Mr.  JosUn,  superintendent  of 
delivery,  who  bad  been  present  at  the  stable 
when  it  was  attempted  unsuccessfully  to 
place  the  new  wagon  therein,  went  ttack  to 
the  store  of  the  defendant,  and  talked  the 
matter  over  with  Mr,  W.  E.  Aldred,  presi- 
dent, and  decided  that  they  could  not  use 
the  stable  for  the  new  wagons ;  that  within  a 
day  or  two  afterward,  Mr.  A.  L.  Aldred  and 
Mr.  Steed  again  went  up  to  the  stable  and 
saw  the  plaintiff  there  and  told  him  they 
conld  not  get  the  new  wagons  Into  the  stable, 
and  so  that  the  stable  would  be  useless  to 
tbe  defendant,  and  th^  would  have  to  give 
it  up.  Both  Aldred  and  Steed  In  substance 
testified  that  tbe  plaintiff  said: 

"That  is  all  right.  *  *  *  I  don't  ask  you 
to  take  anything  •  •  »  tliat  you  can't  use. 
•    •     •    That  wiU  be  aU  right" 

It  further  appears  ttiat  the  stable  was  at 
that  time,  and  had  been  since  some  time  in 
June,  In  continuous  use  by  the  defendant,  as 


above  set  forth,  for  its  horses  and  one  wag- 
on; that  this  last  interview  was  about  the 
15th  day  of  July,  1907;  that  the  plaintiff 
went  on  that  day  to  Ills  attorney,  who  ad- 
vised him  to  put  his  lease  on  record,  and  who 
wrote  to  the  defendant,  at  plaintiff's  request, 
a  letter  to  the  effect  that  he  would  bold  the 
defendant  on  the  lease;  that  tbe  defendant 
did  not  at  this  last  Interview  with  plaintiff 
on  or  about  July  15,  1907,  at  once  abandon 
the  premises,  but  continued  to  occupy  them 
for  a  time  which  is  nowhere  definitely  fixed 
by  the  evidence.  It  does  appear,  however, 
that  the  defendant  without  any  letter  or  no- 
tice sent  to  the  plaintiff  the  key  of  the  stable 
by  registered  mail  received  by  tbe  plaintiff 
on  the  8th  day  of  August,  1907;  that  the 
plaintiff  thereafter  without  further  com- 
munication with  or  notice  to  defendant  rent- 
ed the  stable  for  one  month  from  September 
1,  1907,  for  $30;  that  October  21,  1907,  he 
sent  a  bill  to  defendant  for  rent  for  three 
months,  July  1-October  1,  1907,  $117.99, 
and  gave  defendant  credit  for  amount  re- 
ceived for  September  $30,  balance  $87.09.  It 
does  not  deflnltdy  appear  that  this  bill  was 
ever  received  by  defendant  or  that  any  reply 
thereto  was  ever  made,  but  it  does  appear 
that  this  bill  was  not  paid  and  notlilng  was 
ever  paid  under  the  lease  by  the  defendant 
It  further  appears  that  plaintiff  again  rented 
the  stable  to  another  party  for  five  months, 
February-June,  1908,  inclusive,  and  that  he 
received  therefor  $150;  and  that  there  was 
no  further  rental  during  the  period  covered 
by  the  lease. 

Upon  this  state  of  the  evidence  the  defend- 
ant claimed:  (1)  That  then  the  delivery  of 
the  lease  was  conditional  as  above  set  forth ; 
(2)  that  even  If  this  were  not  so  found,  there 
was  a  surrender  by  the  defendant  and  ac- 
ceptance thereof  by  the  plaintiff,  in  fact  on 
or  about  July  15,  1907 ;  or,  if  that  were  not 
found  to  be  the  fact,  that  in  any  event  there 
was  a  surrender  and  acceptance  by  operation 
of  law,  by  reason  of  the  al)andonment  of  the 
premises  by  the  defendant,  the  sending;  of 
the  key  to  the  plaintiff  August  8,  1907,  and 
the  snbsequ«it  letting  of  the  property  by  the 
plaintiff  on  September  1,  1907,  to  a  third 
party.  The  presiding  Justice  of  the  superior 
court,  in  his  rescript  filed  September  29, 
1916,  stated  that  he  was  of  the  opinion  "that 
tbe  preponderance  of  the  evidence  shows  that 
the  lease  was  never  actually  executed,  but 
was  to  take  effect  only  upon  the  condition 
that  the  premises  proved  to  be  high  enough 
to  admit  the  defendant's  new  delivery  wag- 
ons. It  turned  out  that  the  premises  would 
not  admit  said  new  delivery  wagons." 

[2,  S]  This  court  Is  not  able  to  agree  with 
this  finding  of  fact  From  our  analysis  of 
the  evidence  above  set  forth,  we  are  unable 
to  find  that  the  lease  was  executed  and  de- 
livered upon  any  such  condition.  It  is  not 
disputed  that  it  was  executed  and  delivered 
by  a  duly  authorized  officer  of  the  defendant 
corporation,  Its  president,  WilUun  E.  Aldred, 


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and  sent  by  mail  to  plaintiff ;  that  ttie  lease, 
unconditional  upon  its  face,  was  in  defend- 
ant's possession  for  alwut  a  weelc  l)efore  it 
was  delivered  to  the  plaintiff,  and  it  is  not 
clnimed  by  any  one  tliat  anything  was  said  to 
ttte  plaintiff  at  tbe  time  wben  it  was  deliv- 
ered to  him  that  any  condition  was  Insisted 
upon.  It  further  appears  that  William  B. 
Aldred  died  some  time  prior  to  the  institu- 
tion of  this  suit,  and  it  does  not  appear  that 
any  person  was  present  at  the  time  he  sign- 
ed the  lease  except  the  witness  to  his  sig- 
nature. It  was  attempted  to  be  shown 
through  tbe  witness  Arthur  Ij.  Aldred  that 
his  brother  signed  the  lease  in  reliance  upon 
the  statements  theretofore  made  at  the  in- 
terview above  recited  (some  time  l)etween 
June  11  and  June  26, 1917)  between  the  plain- 
tiff and  this  witness  in  presence  of  said  Wil- 
liam B.  Aldred.  This  testimony  was  objected 
to  on  behalf  of  plaintiff,  on  the  ground  that 
this  witness,  not  l>elng  present  at  the  execu- 
tion and  delivery  of  the  lease,  could  not 
know  whether  or  not  the  lease  was  delivered 
upon  any  condition.  We  are  of  the  opinion 
that  this  evidence  was  incompetent  and  In- 
admi.%slble,  and  should  have  l>een  excluded. 
Exception  third,  which  is  based  upon  the 
admission  of  this  testimmy,  is  sustained. 

[4]  We  are  also  of  the  opinion  In  view  of 
our  analysis  of  the  testimony  above  that  ex- 
ceptions first,  second,  fourth,  and  fifth  must 
be  sustained.  These  all  relate  to  the  admis- 
sion of  evidence  on  behalf  of  the  defendant 
over  plaintiff's  objection  relating  to  the  state- 
ments made  by  plaintiff  at  the  interview  in 
June  prior  to  tbg  execution  and  delivery  of 
the  lease.  In  view  of  what  we  have  said  as 
to  the  unconditional  delivery  of  the  lease  on 
or  about  June  26,  1907,  all  these  statements 
were  Immaterial  and  Inadmissible  in  accord- 
ance with  the  general  rule  stated  in  Abney 
V.  Twombly,  39  R.  I.  304,  317,  97  Atl.  806 
et  seq.,  where  it  was  attempted  to  prove  by 
evidence  of  certain  prior  oral  conversations 
and  statements  between  the  parties  to  a  sale 
and  conveyance  of  land  that  the  grantor  had 
In  fact  agreed  to  convey  a  certain  exclusive 
right  of  way  as  appurtenant  to  the  land 
afterwards  conveyed,  although  the  deed  itself 
did  not  by  Its  terms  convey  an  exclusive 
right  of  way.  As  to  the  evidence  this  court 
said  (39  R.  I.  S18,  97  Atl.  812) : 

"We  think  that  all  this  evidence  was  imma- 
terial and  incompetent.  The  deed  Is  in  no  way 
ambifmous  on  its  face,  and  is  to  be  construed 
without  reference  to  any  prior  understandings  or 
promises  on  the  part  of  the  Krantor  or  his  agent; 
and  parol  evidence  as  to  such  matters  is  not  to 
be  considered." 

The  general  rule  that  contracts  In  writing 
shall  not  be  modified  by  testimony  relating 
to  prior  oral  conversations,  etc.,  is  well 
stated  in  Putnam  Foundry  &  Machine  Co. 
V.  Canfield,  25  R.  I.  648,  552,  66  AU.  1033, 
1034  (1  Ann.   Oas.  726): 

"Tbe  rule  invoked  *  *  *  la  a  most  salutary 
one,  and  this  court  has  nniformly  adhered  to  it. 
Gardner  v,  Chace,  2  R.  I.  112  •  Sweet  v.  Ste- 
vens, 7  R.  I.  375;  Yaughan  v.  Ma8<«,  23  R.  I. 


348  [50  Atl.  390]-  Martin  t.  Clarke,  8  R.  I, 
380  [5  Am.  Rep.  586] ;    Dyer  v.  Print  Works, 

21  R.  I.  63  [41  Atl.  1015];  Watkins  v.  Greene, 

22  R.  I.  34  [46  Atl.  38];  Myron  v.  Railroad 
Co.,  19  R.  I.  125  [32  Atl.  1651.  It  is  based  upoD 
tbe  common  sense  theory  that,  'when  parties 
have  deliberately  put  their  engagements  into 
writing  in  such  terms  as  import  a  legal  obliga- 
tion, without  any  uncertainty  as  to  the  object  or 
extent  of  such  engagement,  it  is  conclasivcly  pre- 
sumed that  the  whole  engagement  of  the  parties 
and  the  extent  and  manner  of  their  undertaking 
was  reduced  to  writing;  and  all  oral  testimony 
of  a  previous  colloquium  between  the  parties,  or 
of  conversations  or  declarations  at  the  time 
when  it  was  completed  or  afterwards  (as  it 
would  tend  in  many  instances  to  substitute  a 
new  and  different  contract  for  the  one  which 
was  really  agreed  upon,  to  the  prejudice,  possi- 
bly, of  one  of  the  parties)  is  rejected.'  1  GreenL. 
Ev.  (16th  Ed.)  S  276." 

See,  also.  Wolf  v.  Megantz,  1S4  Mich.  452, 
151  N.  W.  622,  Ann.  Cas.  1916D,  1146  (lease)  ; 
Ryan  v.  Cot*e,  172  111.  302,  309,  50  N.  B. 
213;  O'Malley  v.  Grady,  222  Mass.  202,  109 
N.  E.  829  (lease) ;  Flndley  v.  Means,  71  Ark. 
289,  73  S.  W.  101;  Caufleld  v.  Hermann,  64 
Conn.  325,  30  Atl.  62;  Naumberg  v.  Toung, 
44  N.  J.  Law,  33L  43  Am.  Rep.  380  Oease). 

Very  many  cases  have  been  dted  by  plaln- 
titTs  counsel  In  support  of  the  same  general 
doctrine  as  applied  to  leases  and  other  con- 
veyances of  real  estate,  as  well  as  to  other 
contracts  In  writing.  All  of  them  have  been 
examined;  but  It  would  unduly  extend  this 
opinion  to  dte  and  comment  upon  them. 
Those  which  we  have  dted  are  typical  cases, 
and  those  of  them  which  relate  to  leases  axe 
quite  in  point  under  the  facts  of  this  case. 

This  court  Is  not  unmindful  that  there  are 
many  cases  relating  to  leases  where  It  has 
been  held  admissible  to  prove  by  oral  testi- 
mony that,  at  the  time  of  delivery  of  a  lease 
even  though  delivered  directly  to  the  party 
or  parties  thereto  and  not  to  a  third  party 
in  escrow,  there  may  be  such  a  conditicm  Im- 
posed by  a  contemporaneous  oral  agreement 
as  will  prevent  the  lease  from  becoming 
binding  and  effectual  between  the  parties 
until  sudh  condition  has  been  fulfilled,  and 
that  such  condition  may  be  proved  by  oral 
testimony,  even  though  the  lease  upon  its 
face  is  absolute.  Several  such  cases  have 
been  dted  on  behalf  of  the  defendant,  in  the 
attempt  to  support  Its  first  defense  that  the 
lease  In  the  case  at  bar  was  delivered  upon 
condition. 

[S]  Hinsdale  v.  McCune,  135  Iowa,  682, 
113  N.  W.  478,  cited  for  defendant,  was  a 
suit  for  rent  under  a  lease,  where  tbe  de- 
fendant pleaded  and  was  allowed  to  prove 
false  and  fraudulent  misrepresentations  of 
facts  within  the  plaintiff's  knowledge  as  to 
the  suitability  of  the  premises  for  defend- 
ant's business,  made  by  plaintiff  at  the  time 
of  the  letting  as  an  Inducement  to  defendant 
to  take  the  lease.  The  proof  of  the  fraud 
was  ample  and  uncontradicted,  and  the  caso 
was  determined  upon  this  point.  In  the  case 
at  bar  there  was  no  fraudulent  misrepresen- 
tation of  facts  within  plaintiff's  knowledge, 
which  misled  tbe  defendant    If  the  plaintiff 


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133 


Mid  that  he  would  "guarantee  this  bam  is 

high  enough  to  carry  any de- 

ttvei?  wagon  that  ever  was  built"  (as  daimed 
by  defendant's  witnesses),  that  was  not  a  mis- 
statement of  fact  within  plaintiff's  knowl- 
edge. He  had  never  seen  the  intended  new 
delivery  wagons  of  the  defendant,  and  de- 
fendant's agents  knew  that  he  had  no  more 
actual  knowledge  of  them  or  their  height 
than  they  had.  His  remark,  as  shown  by 
its  very  language,  was  no  more  than  mere 
"dealers'  talk"  (Handy  v.  Waldron,  18  R. 
I.  567,  569,  29  Atl.  143,  144  [49  Am.  St  Rep, 
791]),  not  worthy  to  be  relied  upon  by  pru- 
dent business  men.  The  case  of  Hinsdale  v. 
HcCune,  supra,  is  not  in  point  under  the 
facts  of  the  case  at  bar. 

Metzger  v.  Roberts,  26  Ohio  Cir.  Ct.  R. 
875,  was  a  suit  for  rent  where  defendant 
pleaded  a  contemporaneous  parol  agn^eement 
made  at  the  time  a  written  lease  was  execut- 
ed, by  which  the  lease  was  only  to  be  used  In 
organizing  a  corporation,  and  transferring 
the  same  to  It,  and  was  under  no  dreum- 
stnncea  to  be  a  valid  lease  between  the  origi- 
nal parties.  And  it  was  further  pleaded  that 
to  allow  the  plaintiff  to  collect  rent  from 
defendant  would  be  a  fraud  on  him  under 
the  facts.  Parol  evidence  of  the  oral  agree- 
ment was  held  admissible  both  to  prove  a 
condition,  and  also  to  prove  the  fraud 
pleaded. 

Donaldson  v.  Uhlfelder,  21  App.  D,  C.  489, 
was  a  suit  to  collect  rent,  wherein  the  de- 
fendant was  allowed  to  prove  that  at  the 
very  time  of  the  tender  of  the  lease  to  him 
be  refused  to  accept  it  unless  upon  the  ex- 
press promise  of  the  lessor  to  make  certain 
repairs;  that  the  lessor  then  and  there 
promised  to  make  the  repairs  and  the  de- 
fendant then  signed  the  lease  and  delivered 
it  to  lessor's  agent,  and  that  the  repairs  were 
never  made;  and  it  was  held  proper  evi- 
dence and  a  good  defense. 

Cartledge  v.  Crespo,  5  Misc.  Rep.  349,  25 
N.  T.  Snpp.  515,  and  Davis  v.  Jones,  17  C. 
B.  62S,  were  cases  very  similar  in  legal  ef- 
fect to  the  two  previous  cases.  There  was  a 
contemporaneous  oral  agreement  to  r^air, 
as  a  condition  precedent  to  the  validity  of 
the  lease,  and  as  an  inducement  to  get  it 
signed.  Some  other  cases  are  cited  on  the 
same  point  on  behalf  of  the  defendant.  Such 
of  them  as  are  In  any  way  applicable  here 
are  similar  In  effect  to  those  above  set  forth. 
Some  of  them  relate  to  contracts  other  than 
leases,  and  in  some  of  them  the  delivery  of 
the  contract  was  expressly  in  escrow  to  a 
third  person. 

It  is  enough  to  say  that  while  we  do  not 
now  find  it  necessary  to  further  discuss  the 
cases  cited  by  defendant  on  this  point,  we  do 
And  that  such  cases  as  support  the  proposi- 
tion that  a  lease  absolute  on  Its  face  and  ac- 
tually delivered  between  the  lessor  and  les- 
see may  be  shown  by  oral  testimony  to  have 
been  delivered  upon  a  condition  precedent 
not  to  become  valid  unless  the  condition  is 


fulfilled,  are  based  upon  fCicts  showing  that 
such  oral  agreement  was  in  fact  contempo- 
raneous with  the  delivery  and  shown  by 
competent  evidence  of  witnesses  knowing  the 
fact  to  be  so,  and  to  be  the  inducement 
whereby  the  lessee  at  the  time  of  the  deliv- 
ery was  Influenced  to  execute  the  lease.  We 
are  of  the  opinion  that  the  evidence  offered 
that  the  lease  in  this  case  was  delivered  up- 
on a  condition  as  claimed  by  the  defendant 
fell  far  short  of  proving  such  conditional 
delivery,  and  was  Incompetent  and  inadmis- 
sible for  the  reasons  above  set  forth.  The 
plaintiff's  exceptions  based  upon  the  admis- 
sion of  such  evidence  (exceptions  first,  sec- 
ond, fourth,  and  fifth)  are  therefore  sus- 
tained. 

[6]  We  now  come  to  the  question  whether 
there  was  at  any  time  a  surrender  by  the 
defendant  and  an  acceptance  thereof  by  the 
plaintiff.  From  our  analysis  of  the  evidence 
above  set  forth,  we  are  unable  to  find  that 
there  was  any  surrender  in  fact  by  the  de- 
fendant In  July,  1907,  and  consequently  there 
could  have  been  no  acceptance  of  surrender 
at  that  time  by  the  plaintiff.  The  defendant 
continued  to  occupy  the  premises  for  such 
purposes  as  it  saw  fit  after  it  found  that  the 
new  wagons  would  not  go  into  the  stable. 
There  is  no  evidence  to  show  just  when  it  re- 
moved its  horses  and  other  property  from  the 
stable;  and  the  only  act  of  abandonment  at 
a  definite  time  appearing  in  the  record  was 
Its  sending  of  the  key  of  the  stable  to  the 
plaintiff  by  registered  mall  on  or  about  Au- 
gust 8,  1907.  It  does  not  appear  that  defend- 
ant occupied  the  stable  after  that  time.  It 
does  definitely  appear  that  the  plaintiff  no- 
tified the  defendant  in  writing  on  July  15, 
1907,  that  he  would  hold  it  on  the  lease. 
The  key  was  sent  by  defendant  to  plaintiff 
on  August  8,  1907,  without  any  letter  or 
notice,  and  plaintiff  kept  the  key.  There  is 
no  evidence  that  plaintiff  took  possession  of 
the  stable  or  did  any  act  in  relation  thereto, 
until  September  1,  1907,  when  he  rented  It  to 
a  third  party  without  notice  to  defendant. 
There  is  nothing  to  show  that  defendant  in 
any  way  gave  its  consent  to  such  letting, 
nor  is  there  any  condusive  evidence  that  the 
defendant  ever  received  notice  at  any  time 
that  the  stable  was  let  to  other  parties. 

The  mere  sending  of  the  key  to  the  plain- 
tiff without  more  has  been  frequently  held  in 
this  state  not  to  be  a  surrender  and  accept- 
ance ;  and  this  is  in  accord  with  the  authori- 
ties elsewhere.  Smith  v.  Hunt,  32  R.  I. 
326,  330,  79  Atl.  826.  35  L.  R.  A.  (N.  S.)  1132, 
Ann.  Cas.  1912D,  971,  and  cases  dted  and 
cases  infra. 

The  sole  question  now  remaining  is  wheth- 
er the  reletting  by  the  plaintiff  on  September 
1,  1907,  worked  an  acceptance  of  the  surren- 
der as  a  matter  of  law.  This  bald  question 
as  to  the  effect  of  a  reletting  by  the  land- 
lord after  abandonment  by  the  tenant  and 
without  notice  to  him  or  assent,  express  or 
implied  on  bis  part;  and  without  other  acts 


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and  circumstances  from  which  an  acceptance 
of  the  surrender  in  fact  or  as  a  matter  of  law 
may  be  Inferred,  has  not  heretofore  arisen 
In  any  reported  case  In  this  state.  In  the 
case  of  White  v.  Berry,  24  R.  I.  74,  79,  52 
Atl.  6S2,  there  were  many  acts  on  the  part 
of  the  landlord,  from  which  it  was  found 
that  the  landlord's  acceptance  of  surrender 
was  to  be  Implied ;  among  these  acts  was 
the  actual  reletting  of  the  premises  witliout 
consulting  with  the  defendant  24  R.  I.  79, 
S2  Atl.  682.  In  Smith  v.  Hunt,  32  R.  I. 
326,  79  Atl.  826,  35  L.  R.  A.  (N.  S.)  1132,  Ann. 
Caa.  1912D,  971,  there  was  no  reletting  dur- 
ing the  time  for  which  rent  was  claimed,  and 
it  was  held  that  the  facts  proved  showed  only 
SBdi  acts  on  the  part  of  the  landlord  after 
abandonment  by  the  tenant  as  the  landlord 
was  entitled  to  do  for  the  protection  of  the 
abandoned  property,  and  with  a  view  to  re- 
letting it;  that  these  acts  were  done  with 
full  knowledge  of  the  defendant;  and  that 
there  was  no  acceptance  of  surrender. 

The  plaintiff  has  cited  several  cases  in  sup- 
port of  his  claim  that  the  reletting  by  plaln- 
tlBF,  although  without  notice  of  such  reletting 
to  defendant,  and  without  notice  that  such 
reletting  would  be  on  the  lessee's  account, 
was  not  as-  a  matter  of  law  an  acceptance  of 
the  surrender.  Biggs  v.  Stneler,  93  Md.  100, 
48  Atl.  727;  Oldewurtel  v.  Wlesenfeld,  97 
Aid.  165,  54  Atl.  969;  Alsup  v.  Banks,  68  Miss. 
664,  9  South.  895,  13  L.  R.  A.  598,  24  Am.  St. 
Rep.  294.  In  these  cases  there  was  express 
refusal  to  accept  surrender;  and  notice  was 
given  to  the  lessee  that  the  lessor  would  rent 
the  property  for  the  account  and  risk  of  the 
lessee,  and  bold  the  lessee  for  any  loss. 

In  Toslin  v.  Mcliean,  99  Mich.  480,  58  N.  W. 
467,  cited  by  plaintiff,  there  is  nothing  in  the 
report  of  the  case  to  show  that  there  was 
any  reletting  during  the  time  covered  by  the 
suit  for  rent  accrued;  and  the  court  found 
nothing  to  show  any  acceptance  of  surrender 
by  the  landlord.  The  key  was  sent  by  the 
lessee  to  lessor  by  mall  without  notice  or 
r-omment  The  lessor  simply  took  possession 
and  undertook  to  rent  the  property ;  but  it 
does  not  appear  that  he  was  trying  to  recover 
rent  for  any  period  of  time  after  he  actually 
rented  the  property.  In  Stewart  v.  Sprague, 
71  Mich.  50,  .18  N.  W.  673,  dted  in  Joslln  v. 
McLean,  supra  (but  not  referred  to  in  plain- 
tiff's brief),  it  does  appear  that  the  court 
held  that  the  lessor,  after  abandonment 
which  was  not  accepted,  could  relet  for  ac- 
count of  the  abandoning  lessee,  and  hold  him 
for  the  lo»,s,  and  that  notice  of  intention  to  re- 
let was  not  essential  or  material.  In  Scott  T. 
Beecher,  91  Mich.  594,  52  N.  VV.  20,  also  cited 
In  Joslln  V.  McLean,  supra,  the  recovery 
sought  was  only  for  the  time  during  which 
the  property  remained  vacant,  and  it  was 
held  that  the  reletting  did  not  operate  as  an 
aco^tance  of  surrender  by  operation  of  law 
BO  as  to  relieve  the  lessee  from  payment  of 
the  rent  undM-  the  lease  for  the  portion  of 


the  year  during  whldi  the  property  remained 
vacant.  In  Auer  v.  Tenn.,  99  Pa.  370,  44  Am. 
Rep.  114,  there  was  an  express  refusal  to 
accept  the  surrender,  and  there  was  express 
and  repeated  notice  in  writing  to  the  surety 
of  the  lessee  that  he  would  be  held  for  the 
rent,  and  that  the  premises  would  be  rented 
at  his  risk.  In  Hlgglns  v.  Street,  19  Okl.  46, 
92  Pac.  153,  13  L.  R.  A.  (N.  S.)  398,  14  Ann. 
Chs.  1086,  there  was  reletting  after  notice  of 
a  similar  nature.  In  ICose  Mercantile  Co. 
T.  Smith,  139  La.  217,  Tl  South.  487,  the 
holding  upon  this  point  was  merely  Incidental 
and  whether  or  not  notice  of  reletting  was  giv- 
en or  whether  the  reletting  was  done  imder 
such'  drcorastances  as  to  imply  the  assent  of 
the  lessee  does  not  appear. 

Holden  v.  Tanner,  6  La.  Ann.  74,  seems  to 
bold  that  reletting  wltboiut  notice  to  the  lessee 
does  not  release  the  surety  on  the  lease,  and 
is  not  evidence  of  the  acceptance  of  the  sur- 
render. This  case  is  not  In  accord  with  the 
cases  cited  infra.  This  case,  and  that  of  Stew- 
art V.  Sprague,  supra,  are  the  only  cases 
cited  by  plaintiff  which  seem  to  go  to  the 
extent  claimed  by  plaintiff  in  Ills  brief.  It 
appears  In  the  case  at  bar  that  there  was  no 
sufficient  proof  of  an  abandonment  and  sur- 
render of  the  premises  by  the  lessee  prior  to 
the  sending  of  the  key  to  the  landlord  on 
August  8,  1907.  At  that  time  under  the  evi- 
dence it  may  be  assumed  that  there  was  evi- 
dence of  intention  on  the  part  of  the  tenant 
to  surrender  the  premises'  to  the  landlord. 
At  that  time,  however,  the  landlord  did  not 
attempt  to  notify  the  lessee  that  be  would  not 
accept  surrender  of  the  premises,  nor  did  he 
ever  at  any  time  notify  the  lessee  that  be 
would  rent  the  premises  for  account  of  or  at 
the  risk  of  the  lessee  and  would  h'old  the 
lessee  for  the  balance  of  the  agreed  rent  over 
and  above  what  he  should  be  able  to  get  by 
way  of  rent  of  the  premises  for  the  balance 
of  the  term.  It  does  not  appear  that  the 
plaintiff  as  landlord,  after  the  receipt  of  the 
key  on  August  8,  1907,  gave  any  notice  of  any 
kind  to  the  lessee  refusing  to  accei)t  the  sur- 
render. It  does  appear  that  on  September  1, 
1907,  he  rented  the  premises  to  a  third  party 
for  one  month,  and  that  on  October  21,  1907, 
after  this  reletting,  he  sent  a  bill  to  the  de- 
fendant for  three  months'  rent,  and  gave  the 
defendant  credit  for  $30  received  from  his  ten- 
ant. It  is  not  shown  that  the  defendant  ever 
received  this  bill,  but  It  does  appear  at  least 
that  it  never  was  paid.  After  this  relettlns 
there  was  a  further  reletting  for  five  moutbis 
to  stUl  another  party,  and  as  to  this  relet- 
ting there  was  no  notice  or  attempt  at  no- 
tice to  the  defendant,  so  far  as  the  evidence 
shows,  either  before  or  after  the  reletting. 

The  defendant  contends  that  under  these 
circumstances  the  reletting  by  plaintiff  was, 
as  a  matter  of  law,  an  acceptance  of  the  sur- 
render; that  the  creation  of  this  new  teuaaey 
was  "of  such  a  diaracter  as  to  have  been  la- 


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135 


eonslstent  with  the  defendant's  continued 
possession  and  use  of  the  property";  and 
cites  In  support  of  such  cVjntentlon  a  num- 
ber of  cases  where  a  reletting  after  abandon- 
ment by  a  lessee  has  been  held  to  be,  as  a 
matter  of  law,  an  acceptance  of  surrender, 
although  the  lessor,  at  the  time  of  abandon- 
ment by  the  lessee,  had  refused  to  accept 
surrender  and  release  the  lessee. 

In  Gray  t.  Kaufman  Dairy  &  Ice  Cream 
Co.,  162  N.  Y.  388,  56  N.  E.  903,  49  L.  R.  A. 
5S0,  76  Am.  St.  Rep.  327,  there  was  a  lease 
from  plaintiff  to  defendant  of  certain  premis- 
es In  New  York  City  for  a  term  of  ten  years 
from  August  1,  1893,  and  the  lessee  entered 
into  possession,  and  remained  and  paid  rent 
to  November  1, 1S93,  and  then  moved  out  and 
abandoned  the  premises,  and  sent  the  keys 
to  the  plaintiff  by  mall.  The  plaintiff  re- 
ceived the  keys  about  November  2,  1893,  and 
on  November  3,  1S93,  sent  the  following  no- 
tice to  the  defendant: 

"Yesterday  I  received  the  keys  of  787  Eighth 
avenue  by  mail.  I  hprcby  notify  you  that  I 
do  not  accept  a  surrender  of  the  premises,  and 
that  I  intend  to  hold  you  responsible  for  the 
rent  under  the  lease.  I  shall  let  the  premises 
un  your  account,  and  I  hold  you  for  any  loss 
which  may  be  sustained." 

The  defendant  made  no  answer  to  this  no- 
tice; but  there  were  further  personal  nego- 
tiations between  the  parties  looking  to  a 
compromise  or  arrangement  whereby  the  mat- 
ters in  dispute  would  be  settled.  On  or  about 
December  1,  1893,  the  plaintiff  let  the  prem- 
ises to  a  third  party,  but  it  did  not  appear 
that  this  reletting  was  on  account  of  the  de- 
fendant or  with  its  consent.  It  did  appear 
that  the  reletting  was  In  plain tlfTs  own  name. 
The  gist  of  the  opinion  is  well  stated  In  the 
beadnote,  viz.: 

"A  surrender  of  leased  premises  is  created  by 
operation  of  law,  altbouKh  the  landlord  has  de- 
clined an  offer  of  surrender,  where  after  the  ten- 
ant baa  abandoned  them  the  landlord  lets  them 
in  bia  own  name  to  a  third  person  for  a  new 
term,  without  the  tenant's  consent" 

It  was  further  held  that  the  case  was  dis- 
tinguishable from  the  case  of  Underhlll  v. 
Collins,  132  N.  T.  260,  270,  30  N.  E.  576, 
where  there  was  a  reletting  of  premises  leas- 
ed after  abandonment  by  the  lessee,  and 
where  it  appeared  in  evidence  that  there  was 
such  a  reletting  pursuant  to  a  conversation 
between  the  parties,  a  few  days  before  the 
lessee  vacated  the  premises,  wherein  the 
lessor  refused  to  accept  a  surrender  at  re- 
quest of  the  lessee,  but  then  and  there  in- 
sisted that  be  would  hold  the  tenant  for  the 
rent  and  would  lease  the  premises  for  and 
on  his  account.  In  this  latter  case  there  was 
held  to  be  an  implied  assent  on  the  part  of 
the  lessee  to  the  reletting  for  and  on  the  les- 
see's account.  In  the  case  of  Gray  v.  Kauf- 
man, etc.,  Co.,  supra,  it  was  found  upon  all 
the  evidence  that  there  was  no  such  assent. 
The  sane  general  doctrine  is  supported  by  | 


other  cases  cited  on  defendant's  brief,  viz.: 
Dagett  V.  Champney,  122  App.  Div.  264,  106 
N.  Y.  Supp.  892;  Coe  v.  Haight,  95  Misc. 
Rep.  603,  159  N.  Y.  Supp.  666,  669;  Ladd  v. 
Smith,  6  Or.  316;  Welcome  v.  Hess,  90  Cal. 
507,  27  Pa&  369,  25  Am.  St.  Rep.  145;  Pel- 
ton  V.  Place,  71  Vt.  430,  438,  46  Atl.  63;  Hay- 
cock V.  Johnston,  97  Minn.  289,  106  N.  W. 
304,  114  Am.  St.  Rep.  715;  Matthews'  Adm'r 
V.  Tobener,  39  Mo.  116;  Rice  v.  Dudley,  65 
Ala.  68;  Nickells  v.  Atherstone,  10  Q.  B. 
944;  Thomas  v.  Cook,  2  B.  &  Aid.  119.  See, 
also,  2  Tiffany,  Land.  &  Ten.  1338-1342;  19 
Am.  &  Eng.  Enc.  Law  (2d  Ed.)  364,  365. 

[7]  In  the  examination  of  the  many  cases 
dted,  we  have  found  some  confusion  and 
conflict  of  authority  upon  the  question  wheth- 
er the  reletting  by  the  landlord  after  aban- 
donment by  the  tenant  amounts  to  an  ac- 
ceptance of  surrender  as  a  matter  of  law. 
As  above  shown  we  have  found  only  two 
cases  where  it  has  been  baldly  held  that 
the  landlord,  after  refusing  to  accept  a  sur- 
render, can,  as  a  matter  of  right,  without 
notice  to  the  lessee,  or  without  his  assent, 
either  express  or  implied,  relet  the  premises 
for  the  account  and  risk  of  the  lessee  and  can 
hold  the  lessee  for  the  loss.  If  any.  In  all  the 
other  cases  cited  by  plaintiff,  al>ove  referred 
to,  it  either  appears  that  the  landlord  gave 
notice  of  bis  intention  to  relet  for  account  of 
the  lessee  or  at  his  risk,  or  that  there  was 
an  assent  either  express  or  implied  on  the 
part  of  the  lessee  that  such  reletting  could 
be  made  for  his  benefit  and  on  his  account 
or  at  his  risk.  We  find,  therefore,  that  the 
weight  of  authority,  so  far  as  the  facts  of 
the  case  at  bar  are  concerned,  is  to  the  effect 
that  the  reletting  to  a  third  party  by  the 
plaintiff  without  notice  to  the  defendant, 
without  knowledge  on  its  part  or  without  its 
assent,  operated  as  an  acceptance  of  the  sur- 
render by  the  defendant  from  and  after  Sep- 
tember 1,  1907,  and  that  after  that  date  the 
defendant  was  no  longer  bound  by  the  leise. 

[8]  We  also  find  that  the  defendant  was 
bound  for  the  rent  under  the  lease  from  July 
1  to  September  1,  1907,  and  that  the  plaintiff 
is  entitled  to  recover  the  sum  of  178.67,  l>e- 
ing  two  months'  rent  tinder  the  lease,  with 
Interest  at  the  rate  of  6  per  cent  thereon 
from  the  date  of  Judicial  demand,  being  the 
date  of  service  of  the  writ,  March  31,  1911, 
there  being  no  evidence  of  demand  made  at 
any  prior  date.  The  plaintiff's  exceptions  are 
sustained;  but  in  our  opinion  there  is  no 
need  of  a  new  trial,  in  view  of  the  above 
findings.  We  think  that  the  case  should  be 
remitted  to  the  superior  court  sitting  in  Prov- 
idence, with  direction  to  enter  its  Judgment 
for  the  plaintiff  for  the  sum,  with  Interest 
as  above  stated. 

The  defendant  may  show  cause.  If  any  it 
has,  why  this  order  should  not  be  made,  oa 
Monday,  June  18,  1917,  at  10  o'clock  in  th« 
forenoon. 


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101  ATIiANTIC  RBPORTEE 


(R.I. 


ANDERSON  ct  al  t.  NELSON.  (No.  B030.) 
(Supreme  Court  of  Rhode  Island.  July  5,  1917.) 
Vendor  and  Purchaser  €=>7&— Contract— 

Construction. 
A  land  sales  contract,  providing  that  its 
building  restrictions  were  imposed  for  the  bene- 
fit of  the  vendor's  remaining  land  and  premises 
heretofore  conveyed  by  him,  and  containinR  a 
provision  regarding  "no  undesirables,''  is  solely 
for  the  vendor's  benefit,  and  a  purchaser  can- 
not complain  of  a  breach  thereof. 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Cent.  Dig.  SS  7,  8,  127-131.] 

Eixc^ptloDS  from  Superior  Court,  Provl- 
Aaice  and  Bristol  Counties;  George  T. 
Brown,  Judge. 

Assumpsit  by  Carl  E.  Anderson  and  others 
against  Alfred  B.  Nelson.  Verdict  for  de- 
fendant, and  plaintiffs  except.  Exceptions 
overruled. 

Hugo  A.  Clason,  of  Providence,  for  plain- 
tiffs. Wilson,  Gardner  &  Churchill,  of  Provl- 
denoe,  for  defendant. 

PER  CURIAM.  This  Is  an  action  to  as- 
sumpsit to  recover  money  paid  by  the  plain- 
tiffs to  the  defendant  upon  a  certain  agree- 
ment for  the  purchase  of  a  lot  of  land  situat- 
ed on  a  plat  belonging  to  the  defendant  In 
Bast  Providence.  It  appears  that  the  parties 
entered  into  a  written  agreement  for  the 
purchase  of  said  lot.  By  said  agreement  the 
plaintiffs  undertook  to  pay  to  the  defendant 
the  sum  of  $50  and  further  sums  of  $5  eadi 
month  until  the  principal  sum  of  $475,  with 
interest,  had  been  paid;  and  the  defendant 
agreed  to  deliver  to  the  plaintiffs  a  warranty 
deed  of  said  lot  when  said  principal  sum, 
with  Interest,  had  been  paid  to  him  by  the 
plaintiffs.  In  said  agreement  was  the  fol- 
lowing clause: 

"Sixth.  That  the  following  restrictions  which 
shall  terminate  on  the  first  day  of  January,  A. 
D.  1985,  and  which  are  imposed  for  the  benefit 
of  the  remaining  land  of  said  party  of  the  first 
part,  and  of  any  premises  heretofore  conveyed 
by  said  party  of  the  first  part,  and  which  re- 
strictions said  party  of  the  second  part  hereby 
agrees  shall  be  binding  upon  him,  heirs  and  as- 
signs, and  shall  be  made  a  part  of  the  deed 
herein  provided  for,  viz.:  First,  that  all  build- 
ings erected  or  placed  thereon  shall  be  placed 
end  set  back  not  less  than  fifteen  (15)  feet 
from  the  street  line,  provided  that  steps,  win- 
dows, porticoes  and  other  projections  appurte- 
nant thereto  may  be  within  said  distance.  Sec- 
ond, that  no  dwelling  house  coating  less  than  fif- 
teen hundred  dollars  ($1,500.00)  for  a  one  family 
house,  or  twenty-five  hundred  dollars  ($2,500.00) 
for  a  two  family  house,  shall  be  built  on  said 
land.  Third,  no  trees  shall  be  cut,  or  material 
moved  from  said  lot,  or  objectionable  structure 
erected  thereon  without  a  special  permit  in  writ- 
ing from  Alfred  E.  Nelson.  Fourth,  no  unde- 
sirables." 

The  plaintiffs  alleged  that  the  defendant 
failed  to  keep  his  promises  contained  In  said 
agreement,  and  the  same  became  void,  and 
that  they  were  entitled  to  the  return  of  $60, 
the  amount  paid  by  them  on  the  agfreement. 
The  defendant  pleaded  the  general  issue,  and 


also  in  set-off  claimed  an  Indebtedness  of  the 
plaintiffs  to  him  amounting  to  the  sum  of 
$13.75  for  merchandise  delivered  by  him  to 
the  plaintiffs.  The  case  was  tried  before  a 
Justice  of  the  superior  court  sitting  with  a 
Jury.  At  the  conclusion  of  the  testimony 
said  Justice  directed  a  verdict  for  the  defend- 
ant for  $13.75  on  his  plea  in  set-off.  The 
case  Is  before  us  upon  the  plaintiffs'  excep- 
tion to  said  action  of  the  Justice,  and  also 
upon  exceptions  to  certain  rulings  of  said  Jus- 
tice made  during  the  course  of  the  triaL  The 
plaintiffs  contend  that  by  said  agreement 
the  defendant  bound  himself  to  sell  none  of 
the  r«nalnlng  lots  upon  said  plat  to  per- 
sons of  a  certain  nationality,  and  that  he  has 
disregarded  this  promise  and  has  made  such 
sale.  They  base  this  contention  upon  the 
expression  contained  in  the  sixth  clause  of 
said  agreement  quoted  above,  "Fourth,  no 
undesirables."  At  the  trial  the  plaintiffs 
sought  to  show  by  parol  evidence  what  the 
parties  intended  by  the  expression,  "No  un- 
desirables," contained  In  said  agreement. 
The  plaintiffs'  exceptions,  other  than  that 
taken  to  the  direction  of  a  verdict,  relate  to 
the  refusal  of  said  Justice  to  permit  the  in- 
troduction of  such  evidence.  There  was  no 
error  In  said  rulings.  It  would  not  avail 
the  plaintiffs  If  they  had  been  permitted  to 
explain  said  amblgoous  expression.  It  is 
contained  In  a  clause  imposing  restrictions 
upon  the  plaintiffs  for  the  benefit  of  the  de- 
fendant, and  is  binding  only  upon  them. 
Such  restrictions  form  no  part  of  any  prom- 
ise or  undertaking  of  the  defendant  contain- 
ed in  said  agreement. 

There  was  no  testimony  apon  which  plain- 
tiffs were  entitled  to  recover  the  amount 
claimed  by  them;  and  the  defendant  was 
clearly  entitled  to  the  amount  allowed  by 
said  Justice  in  set-off. 

The  plaintiffs'  exceptions  are  all  overruled. 
The  case  Is  remitted  to  the  superior  court 
for  the  entry  of  Judgment  upon  the  verdict. 


CURTIS-YOUNG  CO.  v.  CROWN  GARAGE 
CO.    (No.  6062.) 

(Supreme  Court  of  Rhode  Island.    June  26. 
1917.) 

Exceptions  from  Superior  Court,  Providence 
and  Bristol  CV>unties ;  John  W.  Sweeney,  Judge. 

Action  by  the  Curtis-Young  Company  against 
the  Crown  Garage  Company.  Verdict  for  plain- 
tiff, and  defendant  excepts.  Exceptions  over- 
ruled, and  case  remitted,  with  direction. 

Barney,  Lee  &  McCanna,  of  Providence 
(Walter  H.  Barney  and  IJYancis  I.  McCanna, 
both  of  Providence,  of  counsel),  for  plaintiff. 
Mum  ford,  Huddy  &  Emerson  and  George  H. 
Huddy,  Jr.,  all  of  Providence,  for  defendant. 

PER  CURIAM.  We  have  given  full  consid- 
eration to  the  very  elaborate  briefs  and  argu- 
ments of  counsel  in  the  above  cause,  and  have 
also  given  due  consideration  to  the  evidence  in 
the  cause.  The  evidence  was  sharply  conflicting; 
upon  the  issues  of  the  case,  as  appears  from  the 


«s9For  other  casM  see  same  tople  and  KET-NUMBBR  In  all  Kw-Numbsrad  OlgMtt  and  ladtxn 


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BERGEN  T.  TRIMBLE 


137 


very  extended  quotations  from  tke  testimony  in 
tlie  briefs  of  counsel.  The  jury  returned  a  ver- 
dict for  the  plaintiff,  and  this  verdict  has  been 
fully  approved  by  the  justice  before  whom  the 
case  was  tried.  We  find  that  there  was  ample 
evidence  to  support  the  verdict  of  the  jury,  both 
as  to  defendant's  liability  and  as  to  the  dam- 
ages awarded,  and  there  was  no  error  on  the 
part  of  the  trial  justice  in  denying  the  defend- 
ant's motion  for  a  new  trial. 

We  have  carefully  examined  all  of  the  de- 
fendant's exceptions,  based  upon  the  rulings  of 
the  trial  justice  in  admission  and  exclusion  of 
testimony,  and  as  to  such  admissions  and  ex- 
clusions we  find  no  reversible  error. 

We  have  also  examined  the  defendant's  ex- 
ceptions based  upon  the  refusal  of  the  trial  jus- 
tice to  submit  certain  special  findings  to  the 
jury,  and  in  our  opinion  the  submission  of  the 
special  findings  referred  to  was  properly  re- 
fused, for  the  reason  that  such  special  findings 
would  have  raised  issues  immaterial  to  the 
decision  of  the  case,  and  woiild  have  tended  to 
confuse  and  mislead  the  jury. 

We  have  also  examined  aU  of  the  defendant's 
exceptions  based  upon  the  court's  refusal  to 
charge  the  jury  as  specially  requested,  and  in 
doing  so  we  have  examined  the  whole  charge  of 
the  court  to  the  jury.  We  are  of  the  opinion 
tliat,  80  far  as  such  special  requested  instruc- 
tions were  warranted  in  law  and  based  upon 
facts  in  evidence,  they  were  substantially  in- 
cluded in  the  charge  to  the  jury.  We  find  that 
the  jury  was  properly  instructed  in  the  law  of 
the  case,  and  that  the  trial  justice  was  not  in 
error  in  refusing  to  instruct  the  jury  as  special- 
ly requested. 

We  find  no  reversible  error  in  respect  of  any 
of  the  exceptions  urged  on  behalf  of  the  defend- 
ant. The  defendant's  exceptions  are  all  over^ 
ruled,  and  the  case  is  remitted  to  the  superior 
court  sitting  in  Providence,  with  direction  to 
enter  judgment  for  the  plaintiff  upon  the  ver- 
dict. 

(130  Ud.  £69) 

BEROEN  y.  TRIMBLE  et  al.    (No.  40.) 

(Coort  c^  Appeals  of  Maryland.    May  9,  1917.) 

1.  Biixs  AND  Notes  ®=»39&— Interest  on  I>b- 

MAND    AND    NOTICE    TO    INOOBSEB— "ACCOM- 
MODATED  iNDOmEB." 

Although  a  loan  for  which  notes  were  given 
was  not  made  for  the  sole  benefit  of  indorsers, 
they  were  still  "accommodated  indorsers"  with- 
in the  meaning  of  Code  Pub.  Gen.  Laws  1904, 
art.  13,  {{  99,  134,  providing  that  demand  for 
payment  and  notice  of  dishonor  are  not  required 
to  charge  such  indorsers. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent.  Dig.  {§  1022-1028. 

For  other  definitions,  see  Words  and  Phrases, 
Second  Series,  Accommodation  ot  Indorsers.] 

2.  Bills  and  Notes  «=»537(7)  —  Action 
aoainst  indobsers  —  accommodation  ov 
Officeb— Question  fob  Juet. 

Evidence  showing  that  notes  were  indorsed 
by  defendants  in  accordance  with  express  agree- 
ment made  in  presence  of  payee,  and  that  it 
was  upon  them  alone  that  payee  relied  for  pay- 
ment, held  sufficient  to  go  to  jury  as  tending  to 
show  that  note  was  made  for  the  accommodation 
of  the  indorsers  within  meaning  of  Code  Pub. 
Gen.  Laws  1904,  art.  13,  {{  90,  134. 

[Ed.  Note. — For  other  cases,  see  Bills  and 
Motes,  Cent  Dig.  U  1882-1884,  1887-1880.] 

Appeal  from  Superior  Court  of  Baltimore 
City;   James  M.  Ambler,  Judge. 

Suit  by  De  Witt  Bergen  against  Prank  W. 
Trimble  and  another.    Judgment  for  defend- 


ants, and  plaintiff  appeals.     Reversed,  and 
new  trial  awarded. 

Argued  before  BOYD,  0.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNBR, 
STOOKBBJDGB,  and  CONSTABLE,  J  J. 

Edgar  Allan  Poe,  of  Baltimore  (Bartlett, 
Poe  &  Claggett,  of  Baltimore,  on  the  brief), 
for  appellant.  John  D.  Nock,  of  Baltimore 
(Benson  &  Karr,  of  Baltimore,  on  the  brief), 
for  appellees. 

PATTISON,  J.  The  suit  In  this  case  was 
brought  by  the  appellant,  De  Witt  Bergen, 
against  Frank  W.  Trimble  and  John  H. 
Trimble,  copartners,  trading  as  F.  W. 
Trimble  &  Bro.,  as  Indorsers  upon  the  follow- 
lug  promissory  note: 
"$4,000.00.  Baltimore,  June  Ist,  1910. 

"Three  months  after  date  I  promise  to  pay  to 
the  order  of  F.  W.  Trimble  &  Bra  four  thou- 
sand doUara,  at  with  interest. 

"John  Cowan." 

This  note  was  Indorsed  by  F.  W.  Trimble 
&  Bro.  to  the  plaintiff,  De  Witt  Bergen,  the 
present  holder,  who  at  its  maturity  instituted 
suit  thereon.  At  the  conclusion  of  the  plain- 
tiff's testimony  the  court,  at  the  instance  ot 
the  defendant,  granted  the  following  prayer: 

'The  court  instructs  the  jury  tliat  there  is  no 
evidence  legally  sufficient  to  entitle  the  plaintift 
to  recover,  and  the  verdict  must  be  for  the  de- 
fendant." 

The  Jury,  In  obedience  to  such  instruction, 
rendered  a  verdict  for  the  defendant,  and 
upon  that  verdict  a  Judgment  was  entered  for 
defendant's  costs.  It  Is  from  that  Judgment 
this  appeal  was  taken. 

The  note  was  not  presented  for  paymoit  at 
maturity,  and  no  notice  of  its  dishonor  was 
given  to  the  indorsers.  The  only  question 
involved  in  this  appeal  was  whether  the 
plaintiff  was  entitled  to  recover  without 
presentation  of  the  note  for  payment  at  ma- 
turity, and  without  notice  to  the  indorsers 
of  its  dishonor.  In  the  determination  of  this 
question  the  following  sections  of  article  13 
of  the  Public  General  Laws  of  this  state  are 
Involved: 

Section  99: 

"Presentment  for  payment  is  not  required  in 
order  to  charge  an  indorser,  where  the  instru- 
ment was  made  or  accepted  for  his  accommoda- 
tion, and  he  has  no  reason  to  expect  that  the 
instrument  will  be  paid  if  presented," 

Section  134: 

"Notice  of  dishonor  is  not  required  to  be  given 
to  the  indorser  •  •  •  where  the  instrument 
was  made  or  accepted  for  bis  accommodation." 

It  is  contended  by  the  plaintiff  that  the 
evidence  offered  shows,  or  at  least  tends  to 
show,  that  the  promissory  note  In  question 
was  made  for  the  accommodation  of  the 
defendants,  within  the  meaning  of  the  stat- 
ute, and  therefore  to  entitle  the  plaintiff  to 
recover  it  was  not  essential  that  the  note 
should  have  been  presented  for  payment,  or 
notice  of  Its  dishonor  given  to  the  Indorsers, 
and  that  the  instmctlon  of  the  court  direct- 


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log  a  verdict  for  Uie  defendant  was  errone- 
ously given. 

The  facts  and  circumstances  leading  up  to 
and  surrounding  the  execution  of  the  note, 
as  disclosed  by  the  record,  are  briefly  as  fol- 
lows: 

The  defendants  were  in  1908  largely  In- 
terested in  a  corporation  known  as  the  Dud- 
ley Adding  Machine  Company.  As  expressed 
liy  one  of  the  witnesses,  this  company  "was 
practically  F.  W.  Trimble  &  Bro.,  who  held 
certain  patent  rights,  with  the  inventor, 
Dudley,  subject  to  a  royalty  agreement  held 
by  the  Numerograph  Company,"  by  which  the 
Numerograph  Company  was  to  be  paid  a 
royalty  of  $10  on  each  and  every  machine 
manufactured  by  the  Dudley  Company. 

The  defendants,  with  Cowan  and  others, 
became  interested  in  the  formation  and 
organization  of  another  company  for  the 
manufacture  and  sale  of  adding  machines, 
which  was  to  take  over  the  Dudley  Adding 
Machine  Company,  with  Its  above-mentioned 
patent  rights,  subject,  as  we  have  said,  to 
the  royalty  rights  of  the  Numerograph  Com- 
l>any. 

The  new  company,  it  seems,  had  been  incor- 
liorated,  though  its  stock  had  not  at  such 
time  been  distributed  or  disix>sed  of.  It  was 
at  this  stage  In  the  promotion  of  the  com- 
piiuy  that  those  intere»ted  therein,  including 
the  defendants  and  Cowan,  proceeded  to  sell 
its  stock,  but  found  they  could  not  do  so  ow- 
ing to  the  royalty  rights  of  the  Numero- 
graph Company.  It  was  then  decided  to  pur- 
chase such  rights. 

Five  thousand  dollars  were  required  to 
purchase  these  rights,  and  this  amount,  in 
addition  to  the  sum  of  $1,000,  which  was 
needed  for  the  payment  of  certain  expenses 
to  be  incurred  in  launching  the  enterprise, 
was  borrowed  from  the  plaintiff,  and  to  se- 
cure the  payment  of  said  loan  a  note  of 
$6,000,  signed  by  Cowan  payable  to  F.  W. 
Trimble  &  Bro.,  and  Indorsed  by  said  Arm, 
was  delivered  to  tlie  plaintiff.  Payments 
were  made  upon  this  and  renewal  notes 
given  therefor,  until  the  amount  of  said  in- 
debtedness was  on  June  1,  1910,  reduced  to 
$4,000,  at  which  time  the  note  In  question 
was  executed  and  delivered  to  the  plaintiff. 

The  amount  of  the  loan,  $6,000,  secured  by 
the  original  note,  was  paid  by  two  checks 
l/oth  drawn  by  the  plaintiff  to  Cowan,  one  for 
95,000  and  the  other  for  $1,000,  and  sent  to 
Harry  E.  Karr,  counsel  for  Trimble  &  Bro., 
nnd  also  for  them  and  others  in  the  promo- 
tion and  organization  of  the  new  corporation. 
Cowan  called  at  the  office  of  Mr.  Karr,  and 
there  indorsed  the  checks.  Five  thousand 
dollars  of  the  amount  realized  on  said  checks 
were  paid  by  Karr  to  the  Numerograph  Com- 
pany for  the  purchase  of  its  aforesaid  royal- 
ty rights,  but  it  is  not  shown  to  whom  such 
rights  were  assigned,  and  the  remaining 
$1,000  was  applied  either  by  Karr  or  Cowan  , 
to  the  payment  of  certain  expenses  to  which ' 


we  have  already  alluded.  The  payments  up- 
on the  original  and  renewal  notes  were  made 
by  Cowan,  but  whether  from  bis  own  in- 
dividual money  or  from  money  derived  from 
other  sources  it  is  not  disclosed,  except  as 
to  $300,  which  is  said  to  have  been  received 
"from  the  creditors'  committee  of  John 
Cowan."  The  character  of  this  committee 
or  how  or  for  what  piupose  it  was  created 
is  not  disclosed  by  the  evidence.  The  testi- 
mony, however,  discloses  that  before  the 
note  of  $4,000  became  due  and  payable  Cowan 
Informed  the  Indorsers  that  he  would  not  be 
able  to  pay  the  note  at  maturity,  and  that  it 
would  have  to  be  renewed,  but  the  Indorsers 
refused  to  renew  it 

Bergen  testified  that  the  money  was  loan- 
ed by  him  to  Cowan  and  Trimble  Bros,  for 
the  purpose  of  putting  it  into  an  adding  ma- 
chine businesB,  made  simply  as  a  loan  to 
them,  as  they  were  short  of  funds  at  that 
time.  Miller,  who  acted  for  Bergen  in  the 
negotiation  of  the  loan,  testified: 

"The  Trimbles,  with  Mr.  Cowan.  Mr.  Davis, 
and  Mr.  Karr,  wanted  some  moaey.  They  asked 
me  if  I  could  get  it  from  Mr.  Bergen,  and  I 
presented  the  matter  to  Mr.  Bergen  and  got  the 
money." 

Davis,   It   seems,   was   in  some  way  in- 
terested in  the  transaction. 
Miller  farther  testified  that: 

These  people,  "in  order  to  go  ahead  with  Aeir 
promotion,  were  obliged  to  pay  $5,000  (for  the 
royalty  rights  of  the  Numerograph  Company'), 
and  they  did  not  have  the  money,  so  they  stated. 
They  wanted  the  money  for  that  purpose,  to- 
getlier  with  an  extra  $1,000  for  equipping  omoes 
in  Philadelphia." 

He  was  then  asked  was  anything  ^aid  at 
the  time  that  you  arranged  the  loan  as  to 
the  form  that  that  loan  was  to  take;  as  to 
whether  It  was  to  be  evidenced  by  a  note  or 
a  bond  or  otherwise. 

"A.  They  were  to  give  a  note.  Q._  What  was 
the  arrangement  as  to  who  was  to  give  the  note 
and  the  amount  of  same  when  you  say  they  were 
to  give  a  note  to  Mr.  Bergen/  A.  Mr.  Cowan, 
indorsed  by  defendants.  Q.  VVaa  anything  said 
at  this  conference,  and,  if  you  remember,  by 
whom,  as  to  this  $5,000?  A.  Xea.  Q.  By  whom 
was  it  said,  if  you  remember?  A.  By  all  of  them. 
It  was  a  general  conversation.  Q.  What  was 
said?  A.  That  the  money  was  to  be  raised  by 
the  Trimbles  to  clear  their  title  to  hold  the  pat- 
ent" 

If  the  money  was  loaned  to  the  defendants 
for  their  sole  benefit  the  note,  though  signed 
by  Cowan  as  maker,  was  made  for  their 
accommodation,  and  no  demand  of  payment 
of  the  note  at  maturity  was  necessary  and 
no  notice  of  its  dishonor  was  required  to 
be  given  the  defendants  as  indorsers.  If  the 
loan  was  made  to  Cowan  and  the  defendants 
for  tbelr  Joint  benefit  and  the  repayment  of 
that  loan  was  to  be  secured  by  a  note  exe- 
cuted by  agreement  between  them  in  the  man- 
ner and  form  shown  by  the  record,  there  was 
an  obligation  on  the  part  of  both  the  defend- 
ants and  Cowan  to  pay  the  note  at  maturity. 

[1]  The  fact  that  the  loan  was  not  made 


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AO-RICUIiTUBAL  SOO.  t.  STATB 


139 


for  the  sole  benefit  of  the  defendants  does 
not  diange  the  character  of  the  Indorsement 
In  respect  to  demand  for  payment  or  notice 
of  dishonor.  They  were  nevertheless,  in  our 
opinion,  accommodated  indorsers  within  the 
meaning  of  the  statute;  and  the  plaintiff 
was  not  required  to  make  demand  upon  Cow- 
an or  give  notice  to  the  defendants  of  the 
nonpayment  of  the  note.  Bank  of  Washing- 
ton V.  Way,  2  Cranch,  O.  O.  249,  Fed.  Cas. 
No.  957. 

[2]  The  evidence  offered,  we  think,  was 
legally  sufficient  to  go  to  the  jury  as  tend- 
ing to  show  that  the  note  was  made  for  the 
accommodation  of  the  indorsers  within  the 
meaning  of  the  statute,  and  that  their  in- 
dorsement thereon  was  that  of  accommodated 
Indorsers,  who  had  no  reason  to  expect  the 
note  would  he  paid  by  the  maker  If  presented 
f<H-  payment. 

The  cases  of  First  National  Bank  v. 
Blekel,  14.3  Ky.  754,  137  S.  W.  790,  and  liuck- 
enbach  v.  McDonald,  170  Fed.  434,  95  C.  C.  A. 
604,  which  were  cited  to  us  by  the  defend- 
ants in  support  of  their  contention,  in  which 
the  indorsers  were  held  to  be  entitled  to 
notice  of  dishonor,  differ  widely  from  the 
case  before  us.  In  each  of  those  cases  the 
loan  was  made  to  the  corporation,  and  to 
secure  the  repayment  of  the  loan,  the  note  of 
the  corporation,  payable  to  the  plaintiff  and 
Rlfmed  by  its  president,  and  indorsed  by  him 
and  other  directors  of  the  corporation,  was 
delivered  to  the  plaintiff.  In  the  latter  case 
Jndse  Gray,  speaking  for  the  court,  said: 

"There  is  no  evidence  disclosed  by  the  record, 
tending  to  show  that  anythlne  else  was  con- 
templated by  those  who  negotiated  this  loan  than 
that  it  was  to  be  a  loan  to  the  corporation  for 
the  promotion  of  its  business,  for  wnich  the  cor- 
poration was  to  be  primarily  bound  bv  the  prom- 
issory note  which  it  made,  and  that  the  directors 
who  loaned  their  credit  by  indorsement  assumed 
the  secondary  liability  of  indorsers,  and  none 
other.  •  •  •  All  the  evidence  tends  to  show 
that  the  payee  of  the  note  had  no  other  thooght 
than  that  the  security  he  held  for  his  note  was 
what  it  puriKHrted  to  be  on  its  face ;  i.  e.,  the 
primary  liability  of  the  corporation,  as  maker, 
and  the  secondary  liability  of  the  defendant  and 
his  two  C(dleagues,  as  indorsers." 

In  the  case  b^ore  us,  as  the  evidence 
trads  to  show,  the  loan  was  not  made  to 
either  of  the  corporations  mentioned  in  the 
record,  but  to  Cowan  and  the  defendants, 
and  the  note  given  to  secure  such  loan  was 
signed,  not  by  either  of  said  corporations, 
but  by  Cowan  as  maker,  and  indorsed  by 
the  defendants  in  accordance  with  an  ex- 
press agreement  between  them  made  in  the 
presence  of  the  plaintiff,  to  whom  it  was 
thereafter  delivered;  and  it  was  upon  them 
alone  that  the  plaintiff  relied  for  the  repay- 
m<>nt  of  said  loan. 

It  follows  from  what  we  have  said  that 
tl>e  Judgment  of  the  court  below  will  be  re- 
versed, and  a  new  trial  awarded. 

Judgment  reversed,  and  new  trial  awarded, 
with  costs  to  the  appellant. 


(UO  Ud.  474) 
AaRIODIiTDRAL  SOC.  OF  MONTGOMERY 

COUNTY  V.  STATB.    (No.  20.) 
(Court  of  Appeals  of  Maryland.    May  4,  1917.) 

1.  GAUIHO  <S=>71  —  BOOKIIAKINO  —  Pbosecu- 
TION. 

Under  Code  Pnb.  Civ.  Laws,  art.  27,  H  217- 
221,  prohibiting  gambling  on  the  result  of  horse 
races  unless  the  grounds  are  licensed  by  the  cir- 
cuit court  for  the  county  in  which  they  are  lo- 
cated, an  agricultural  association  which  suffos 
its  grounds  to  be  used  for  such  purpose  without 
license  is  not  excused  from  failure  to  apply  for 
such  license  by  the  fact  that  sadi  license  had 
been  previously  refused. 

[Ed.  Note.— Por  other  cases,  see  Gaming,  Gent. 
Dig.  :§  166,  187.] 

2.  Statutks  9s>64(1)— Paktiai.  Irvauoitt— 
Test. 

If  different  sections  of  a  statute  are  inde- 
pendent of  each  other,  unconstitutional  ones  may 
be  disregarded  and  valid  sections  may  be  en- 
forced; but,  if  the  valid  sections  without  the  ob- 
noxious would  cause  results  not  contemplated 
or  desired  by  the  Liegislature,  the  entire  statute 
is  inoperative. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
(}ent.  Dig.  SS  58,  195.] 

3.  Statutes  ®=>64(6)— Partiai,  Ihvauditt— 
Leoislativb  Intent— Hibtobt. 

Where  the  history  of  legislation  on  horse 
racing  shows  that  its  main  object  has  been  to 
curb  it,  the  prohibitory  section  of  the  statute  is 
severable  from  the  license  portions,  and  will 
stand  even  if  the  latter  portions  are  unconstitu- 
tional. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  §§  63,  195.] 

Briscoe,  J.,  dissenting  in  part 

Appeal  from  Circuit  Court,  Montgomery 
County;  EXlward  O.  Peter,  Hammond  Urner, 
and   Glenn  H.   Worthlngton,  Judges. 

The  Agricultural  Society  of  Montgomery 
County  was  found  guilty  of  suffering  its 
grounds  to  be  used  for  the  purpose  of  mak- 
ing, selling,  and  buying  books  on  the  result 
of  horse  racing,  and  appeals.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRISC!OE, 
BURKE,  THOMAS,  PATTISON,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Robert  B.  Peter,  of  Rockville,  for  appel- 
lant. Albert  M.  Bouic,  State's  Atty.,  of  Rock- 
ville, and  Ogle  Marbury,  Asst  Atty.  Gen.  (Al- 
bert C.  Ritchie,  Atty.  Gen.,  on  the  brief),  for 
the  Stata 

CONSTABLE,  J.  The  appellant,  which 
conducts  an  annual  fair  in  Montgomery 
county,  was  Indicted  by  the  grand  Jury  of 
that  county  by  an  Indictment  containing  two 
coimts,  the  first  of  which  charged  that  it  on 
the  25th  day  of  August,  1916,  unlawfully 
and  knowingly  suffered  Its  grounds  to  be  us- 
ed for  the  purpose  of  making,  selling,  and 
buying  books  and  pools  thereon  upon  the  re- 
sult of  a  running  race  of  horses  held  within 
the  said  grounds  on  the  said  date.  The 
second  count  charged  tlie  same  offense,  with 
the  addition  that  the  appellant  was  not 
licensed  by  the  circuit  court  for  Montgomery 
county  to  suffer  its  grounds  to  be  used  for 


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tbe  purpose  of  making,  selling,  and  buying 
books  and  pools  thereon  upon  a  result  of  a 
running  race  of  horses  to  be  held  thereon. 

The  appellant  pleaded  not  guilty,  and  the 
case  was  submitted  to  the  court  upon  an 
agreed  statement  of  facts.  Keller  y.  State, 
12  Md.  322,  71  Am.'  De&  596;  Salfner  y. 
State,  84  Md.  299,  35  AU.  885.  The  court 
found  the  defendant  guilty,  and  Imposed  a 
fine  of  $50  and  costs,  from  which  Judgment 
this  appeal  was  taken. 

The  statute  which  it  is  charged  the  appel- 
lant violated  is  that  which  was  enacted  by 
Acts  1898,  c.  285,  and  which  is  now  codified 
in  Bagby's  Code,  vol.  3,  as  sections  217,  218, 
219,  220,  and  221  of  article  27. 

Section  217  Is  as  follows: 

"It  shall  not  be  lawful  for  any  penon  or  per- 
sons, or  association  of  persons,  or  for  any  cor- 
poration within  the  state  of  Maryland,  to  bet, 
wage  or  gamble  in  any  manner,  or  by  any  means, 
or  to  make  or  sell  a  book  or  pool  on  the  result  of 
any  trotting,  pacing  or  running  race  of  horses 
or  other  beasts,  or  race,  contest  or  contingency 
of  any  kind,  or  to  establish,  keep,  rent,  use  or 
occupy,  or  knowingly  suffer  to  be  used,  kept  or 
rented  or  occupied,  any  house,  building,  vessel, 
grounds  or  place  or  portion  of  any  bouse,  build- 
ing, vessel,  grounds  or  place,  on  land  or  water, 
within  the  state  of  Maryland,  for  the  purpose  of 
betting,  wagering  or  gambling  in  any  manner, 
ur  by  any  means,  or  making,  selling  or  buying 
books  or  pools  therein  or  thereon  upon  the  result 
of  any  race  or  contest  or  contingency,  or  by  any 
means  or  devices  whatsoever,  to  receive,  become 
the  depository  of,  record  or  register,  or  forward 
or  purpose,  or  agree  or  pretend  to  forward  any 
money,  bet,  wager,  thing  or  consideration  of  val- 
ue, to  be  bet,  gambled  or  wagered  in  any  manner, 
or  •  •  •  device  whatsoever,  upon  the  result 
of  any  race,  contest  or  contingency,  and  any 
person  violating  any  of  the  provisions  of  this  sec- 
tion shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  subject  to  a 
tine  of  not  less  than  two  hundred  dollars  nor 
more  than  one  thousand  dollars,  one-half  of  said 
fine  to  go  to  the  informer,  and  shall  be  subject  to 
imprisonment  in  jail  for  not  less  than  six  months 
nor  more  than  one  year,  or  be  both  fined  and  im- 
prisoned, in  the  discretion  of  the  court" 

Section  218  provides  tliat  nothing  in  the 
preceding  section  shall  render  It  unlawful 
in  any  county  in  the  state  for  any  persons 
to  make  a  pool  or  book,  or  to  bet  within  the 
grounds  of  any  agricultural  association,  race 
course,  or  driving  park  upon  the  result  of  any 
trotting,  pacing,  or  runulng  race  of  horses 
which  shall  be  held  wlthia  the  said  grounds, 
race  course,  or  driving  park  upon  which  said 
persons  shall  make  a  pool  or  book  or  shall 
so  bet  upon  the  same  day  on  which  said 
race  shall  be  held,  provided  the  grounds  be 
licensed  by  the  circuit  court  for  the  county 
within  which  such  grounds  or  tracks  may  be 
located.  Section  219  provides  for  the  applica- 
tion for  the  license  and  the  advertisement 
of  the  application.  Section  220  provides  for 
what  the  application  shall  contain.  Section 
221  provides  for  what  the  license  shall  con- 
tain, such  as  the  name  of  the  grounds  and 
the  number  of  days  and  the  month  within 
which  such  license  shall  be  operated,  and 
further  provides  what  number  of  days  in  any 
one  year  betting  con  l>e  carried  on,  and  also 


what  months  during  whldi  betting  shall  not 
be  permitted,  and  further  names  certain 
counties  to  which  this  section  shall  not  be 
applicable.  Including  Cedl,  Washington,  and 
Anne  Arundel  counties.  Sections  219,  220, 
and  221  are  no  longer  applicable  to  Balti- 
more and  Harford  counties,  for  which,  by 
Acts  1912,  c&  77,  132,  racing  commissions 
were  created  to  control  horse  racing  In  those 
counties. 

By  the  said  agreed  statement  of  facts  It 
appears: 

(1)  That  the  defendant  is  a  corporation 
and  owns  a  fair  ground  at  ItockviUe,  in 
Montgomery  county,  upon  which  there  Is  a 
race  course. 

(2)  That  on  the  25th  day  of  August,  191C, 
the  defendant  did  knowingly  suffer  its  said 
grounds  to  be  used  for  the  purpose  of  mak- 
ing, selling,  and  buying  books  and  pools 
therein  upon  the  result  of  a  running  race 
of  horses  held  within  the  said  grounds  on  the 
said  25th  day  of  August,  1916. 

(3)  That  the  defendant  is  an  agricultural 
association,  and  annually  holds  a  fair  for 
four  days  upon  its  said  grounds,  and  that 
the  "fair"  for  the  year  1916  was  actually 
being  held  upon  its  grounds  on  said  25th  day 
of  August,  1916,  when  said  running  race  took 
place. 

(4)  That  the  defendant's  said  race  course 
is  the  only  race  course  or  driving  park  in 
Montgomery  county  upon  which  horse  races 
were  to  be  held  during  the  year  1916,  and 
that  the  racing  on  this  course  was  for  only 
four  days,  and  they  were  the  days  the  de- 
fendant was  actually  holding  its  fair. 

(5)  That  the  defendant  did  not  apply  to  the 
circuit  court  for  Montgomery  county  for  a 
license  to  suffer  its  grounds  to  be  used  for  the 
making,  selling,  and  buying  books  and  pools 
thereon  upon  the  result  of  horse  racing  in 
the  year  1916,  and  that  no  license  was  issued 
to  the  defendant  for  that  purpose  in  that 
year. 

(6)  That  In  the  year  1910  the  defendant 
made  application  to  the  circuit  court  for  a 
license  to  permit  bookmaking  and  pool  sell- 
ing upon  horse  racing  upon  its  said  fair 
grounds  for  four  days  during  its  fair  for  the 
year  1910,  but  that  a  license  was  refused  by 
a  full  bench,  and  that  the  defendant  has 
not  made  application  for  a  license  since  said 
refusal;  that  the  circuit  court  for  Mont- 
gomery county  In  said  year  1010  convicted  a 
certain  Artliur  J.  Mark  of  gaming  and  book- 
making  at  the  fair  grounds  of  the  defendant 
at  its  annual  fair  held  for  the  year  1910, 
and  he  was  fined  $400  and  costs. 

(7)  It  is  fmther  agreed  tliat  the  court 
should  have  power  to  enter  up  Judgment  In 
conformity  with  Its  findings. 

It  la  contended  on  behalf  of  the  appellant 
that  the  sections  of  the  act  providing  for  the 
granting  by  the  circuit  court  of  the  different 
counties  of  the  state  of  licenses  to  agricultu- 
ral associations,  race  courses,  and  driving 


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AGRICULTURAIi  SOO.  v.  STATE 


141 


parks  are  void,  tor  the  reason  tbat  the  datles 
therein  attempted  to  be  imposed  upon  the 
courts  are  nonjudicial  duties,  and  b7  reason 
of  those  sections  being  of  no  effect  the  re- 
mainder of  the  act  becomes  also  void  and  of 
DO  effect  It  is  then  claimed  that,  because  of 
the  failure  of  this  act,  then  cliapter  232  of 
the  Acts  of  1894,  which  was  attempted  to  be 
repealed  by  the  present  act,  again  becomes 
the  law  of  this  state  ui>on  this  subject 

For  the  disposition  of  this  case  we  do  not 
ileeai  it  necessary  to  either  discuss  or  decide 
whether  or  not  the  sections  mentioned  impose 
a  Judicial  or  a  nonjudicial  duty  upon  the 
courts,  and  are  therefore  void,  because,  if 
the  duty  imposed  should  be  held  by  this  court 
to  be  a  Judicial  duty,  and  therefore  not  af- 
fect the  validity  of  said  sections,  then,  of 
course,  it  must  follow  that  the  apimllant  was 
guilty  as  charged  in  the  second  count  of  the 
Indictment;  for  the  statute  requires  tliat, 
before  any  agricultural  association,  race 
course,  or  driving  park  shall  t>e  entitled  to 
the  exemption  from  the  provisions  of  section 
217  (the  prohibitory  section),  it  should  make 
application  and  l>e  granted  a  license  l>efore 
it  could  permit  books  or  pools  to  be  made  and 
sold  on  its  grounds. 

[1]  By  the  agreed  statement  of  facts  it  is 
admitted  that  the  appellant  made  no  such 
application  for  dates  for  the  year  1916,  and 
that  no  license  was  issued  to  it  for  that  pur- 
pose and  for  that  year.  The  fact  that  the  ap- 
pellant did  make  application  for  dates  in 
the  year  1910,  and  was  refused  a  license  for 
those  dates  by  the  court,  could  have  no  ef- 
fect, tmder  the  statute,  toward  excusing  its 
failure  to  make  application  for  dates  in  1916, 
and  therefore,  under  this  view  of  the  law  and 
facts,  the  appellant  would  clearly  have  been 
found  guilty.  If,  on  the  other  band,  it  should 
be  held  that  the  duty  imposed  upon  the 
courts  is  a  nonjudicial  duty,  and  therefore 
void,  nevertheless  we  are  of  the  opinion  that 
the  prohibitory  portion  of  the  act  still  re- 
mains in  force,  and  that  a  verdict  of  guilty 
as  charged  in  the  first  count  would  be  cor- 
rect. 

[2]  As  to  what  is  the  effect  upon  other  and 
valid  portions  of  a  statute  when  certain 
parts  of  the  same  statute  are  held  to  be  in- 
valid and  unconstitutional  has  several  times 
been  considered  by  this  court,  and  there 
should  not  now  be  any  difficulty  in  stating 
the  general  rule,  but  the  difficulty  arises 
rather  in  its  application.  In  Storck  v.  Bal- 
timore City,  101  Md.  476,  61  AU.  330,  this 
court  adopted  the  language  used  by  the  Su- 
preme Court  of  the  United  States  In  the  case 
of  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U. 
S.  540,  22  Sup.  Ct  431,  46  L.  Ed.  679,  In 
saying: 

"If  different  sections  of  a  statute  are  inde- 
pendent of  each  other,  that  which  is  unconstitu- 
tional may  be  disregarded,  and  valid  sections 
may  stand  and  be  enforced.  But  if  an  obnoxious 
section  is  of  such  import  that  the  other  sec- 
tiona  without  it  would  cause  results  not  contem- 
plated or  desired  by  the  LiCgislature,  then  the' 


entire  statute  must  be  held  inoperative."  State 
V.  Benzinger,  83  Md.  481,  35  AO.  173;  Stie- 
fel's  Case,  61  Md.  144. 

Assuming  only  for  the  purpose  of  a  dis- 
position of  this  case  that  the  licensing  sec- 
tions are  void  and  inoperative,  the  inquiry 
then  must  be  as  to  whether  or  not  the  whole 
of  the  act  thereby  is  rendered  void  and  of  no 
effect.  The  authorities  cited  above,  and  in 
fact  the  authorities  practically  everywhere, 
hold  that  the  test  is  whether  or  not  one  sec- 
tion can  stand  alone  as  expressing  the  legis- 
lative will;  whether  or  not  thel  lawmaking 
body  would  have  enacted  one  without  enact- 
ing both  or  all  as  a  whole. 

[3]  To  arrive  at  the  legislative  intent 
in  reference  to  the  subject  with  which 
it  was  dealing,  it  may  be  profitable  to 
review  the  race  track  history  of  this  state 
as  applying  to  gaming.  Speaking  gener- 
ally, there  was  no  statute  seeking  to  control 
or  limit  such  until  the  adoption  of  chapter 
206  of  the  Acts  of  1890.  This  act,  among 
other  things,  sweepingly  prohibited  gaming 
upon  the  result  of  any  horse  race,  unless  such 
was  done  upon  the  track  where  the  race  was 
actually  being  held.  The  provisions  of  that 
act  were  amended  by  enacting  chapter  232 
of  the  Acts  of  1894,  providing  that  gaming 
within  the  grounds  of  agricultural  associa- 
tions, driving  parks,  and  race  courses  on  the 
result  of  horse  races  on  the  same  day  as  the 
races  were  actually  run,  as  provided  by  the 
said  act  of  1890,  should  be  limited  to  30  days 
in  any  calendar  year.  This  act  was  amended 
by  the  act  now  under  consideration,  and  thus 
has  stood  the  law  of  the  state  up  to  the  pres- 
ent, with  the  exception  of  several  counties 
to  which  certain  local  laws  are  applicable. 
It  is  thus  apparent  tliat  since  the  year  1890 
the  tendency  of  the  Legislatxire  has  been  to- 
wards restricting  and  limiting  what  to  a 
great  number  of  persons  has  seemed  a  great 
evlL 

If  the  contention  of  the  appellant  Is  cor- 
rect, in  that  the  license  portions  of  the  act 
are  void,  and  that  the  act  is  not  severable, 
and  that  thus  the  whole  act  should  fall,  the 
result  would  be  that  the  act  of  1894  would 
be  revived.    State  v.  Benzinger,  supra. 

We  cannot  lose  sight  of  that  which  la  a 
part  of  the  legislative  history  of  the  state. 
It  must  be  remembered  how  under  the  act 
of  1894  six  race  tracks  were  located  in  one 
county  of  the  state,  upon  each  one  of  which 
racing  and  gaming  were  carried  on  for  30 
days,  or  for  a  total  of  6  months  during  the 
winter  months  of  each  calendar  year.  At 
the  session  of  tha  same  Legislature  which 
passed  the  act  now  before  us  there  was  pass- 
ed a  statute,  chapter  13,  Acts  of  1898,  ab- 
solutely prohibiting  race  track  gaming  in  the 
county  just  mentioned,  without  any  qualiflea- 
tions  at  all,  and  thus  relieved  the  deplorable 
conditions  that  had  arisen  from  the  practical 
working  of  the  act  of  1894.  With  the  ex- 
pressed opinion  of  that  Legislature  as  to  the 
abuses  which  were  permitted  under  coTer  of 


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142 


101  ATIAiraiC  REPORTER 


(Md. 


that  statute,  It  can  fairly  be  assumed  that  the 
same  Legislature  did  not  Intend  that  like 
abuses  should  spring  up  in  the  other  counties. 
It  attempted  to  accomplish  this  end  by  pass- 
ing the  present  act,  and  making  the  dates  for 
racing  and  gaming  subject  to  the  control  of 
the  courts.  The  main  object  of  all  legisla- 
tion on  horse  races  since  1890  has  been  to 
curb  this  form  of  gaming.  The  various  stat- 
utes clearly  prove  this,  and  we  are  satisfied 
that  the  prohibitory  section  is  severable  from 
the  license  portions  of  the  act,  and  can  there- 
fore stand. 

It  follows,  therefore,  that  whichever  view 
is  taken  as  to  the  constitutionality  of  the  li- 
cense section,  the  appellant  was  properly 
found  gruilty  as  held  by  us  In  a  per  curiam 
opinion  heretofore  filed. 

BRISCOE,  J.,  concurs  in  the  conclusion, 
but  dissents  from  the  reasons  assigned  there- 
for. 

(130  Md.  60O 

BRADY  et  al.  v.  MAYOR  AND  CITY  COUN- 
CIL OF  BALTIMORE.     (So.  34.) 
(Court  of  Appeals  of  Maryland.    May  9,  1917.) 

1.  MuNiciPAi,  Corporations  <8=»648— Streets 
—Adverse  Possession — Color  of  Title. 

Where  city  of  Baltimore  widened  Dock 
street  and  remained  in  possession  for  40  years, 
under  authority  of  Acts  1836.  c.  63,  vesting 
in  it  title  to  street  so  widened  provided  that 
vested  riebts  of  individuals  who  owned  fee  in 
street  subject  to  easement  were  not  interfered 
with,  it  acquired  title  to  fee  by  adverse  posses- 
sion, since  agreement  whereby  proprietors  re- 
liDquisbed  all  interest  in  the  street,  though  not 
suincient  to  convey  fee,  showed  that  city  oc- 
cupied street  in  the  belief  that  fee  vested  in  it, 
and  therefore  its  occupancy  was  under  a  claim 
of  supposed  right  and  was  adverse. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  !$  1421,  1422.] 

2.  Adverse  Possession  ®=>4  —  Prescription 
Agai.vst  Public 

Prescription  will  not  run  against  the  dty  or 
the  public. 

[Ed.  Note.— For  other  cases,  see  Adverse  Poa- 
wBsion,  Cent.  Dig.  !§  7-10,  12-57.] 

Appeal  from  Superior  Court  of  Baltimore 
City;    James  P.  Gorter,  Judge. 

Action  by  the  Mayor  and  City  Council  of 
Baltimore  against  Lizzie  J.  Brady  and  others. 
From  a  judgment  In  favor  of  plalntUF,  de- 
fendants appeal.    Affirmed. 

Argued  before  BOYD,  a  J.,  and  BRISCOE, 
THOMAS,  STOCKBBIDGB,  and  CONSTA- 
BLE, JJ. 

R.  E.  Lee  Marshall  and  Edgar  Allan  Poe, 
both  of  Baltimore,  for  appellants.  Alexan- 
der Preston,  Deputy  City  S<A.,  of  Baltimore 
(S.  S.  Field,  City  Sol.,  of  Baltimore,  on  the 
brief),  for  appellee. 

CONSTABLE,  J.  This  Is  an  acUon  of  eJec^ 
ment  brought  by  the  Mayor,  etc.,  of  Baltimore 
against  the  appellants.  In  which  the  appel- 
lee recovered  a  judgment  for  the  land  de- 
scribed  in   the  declaration  and  damages. 


The  land  In  controversy  Is  located  at  the 
northwest  corner  of  Caroline  and  Dock 
streets,  and  forms  a  part  of  Dock  street  In 
1814,  at  which  time  the  events  began  which 
gave  rise  to  this  controversy,  all  of  this  land 
was  under  the  waters  of  the  Patapsco  river. 
Queen  street  runs  in  the  same  general  di- 
rection as  Dock  street,  east  and  west,  and  Is 
south  of  that  street.  In  1814  John  Cimyng- 
ham  an'd  John  Brlggs  were  the  separate  own- 
ers of  two  contiguous  lots  of  land,  both  of 
which  formed  a  lot  designated  on  a  plot  as 
lot  No.  28.  In  1823  Cunyngham  purchased 
the  lot  of  Brlggs,  and  thus  became  the  sole 
owner  of  the  whole  of  lot  No.  2a  In  1843 
John  Cunyngham  and  wife,  Margaret,  convey- 
ed in  fee  simple  all  of  their  title  In  lot  28  to 
their  daughter,  whose  executors  conveyed.  In 
1889,  the  same  to  E.  S.  Brady,  who  was  the 
immediate  predecessor  in  title  of  the  api>el- 
lants  herein.  Lot  No.  28  was  situated  on  the 
north  side  of  Queen  street  with  a  frontage 
of  60  feet  and  a  depth  of  40  feet  towards 
what  is  now  Dock  street. 

All  the  land  Involved  in  this  case  was  sit- 
uated In  a  part  of  the  city  called  Fells  Point, 
and  for  the  most  part  was  covered  by  water. 
In  1814  the  port  wardens  submitted  to  the 
city  council  a  plan  for  Improving  that  part 
called  the  Cove,  by  making  a  dock  with 
streets  and  alleys  leading  thereto.  That 
plan  was  delineated  on  a  plat  which  was  filed 
with  the  city  librarian,  and  a  copy  of  which 
is  In  the  present  record.  The  mayor,  etc. 
passed  on  March  25, 1814,  an  ordinance  adopt- 
ing the  plan  an'd  appropriating  $6,000  to  en- 
able the  port  wardens  to  proceed  with  the 
work  as  soon  as  the  proprietors  of  land  ad- 
jacent to  the  water  should  signify  their  as- 
sent thereta  The  wardens  proceeded  with 
the  work  and  built  the  city  dock  and  the  dif- 
ferent streets,  including  Dock  and  Caroline 
streets.  Dock  street  had  a  width  of  50  feet, 
and  its  northern  boundary  was  the  southern 
boundary  of  the  dock.  And  all  the  land  un- 
der water  between  the  fast  land  to  the  rear 
of  the  properties  facing  on  Queen  street 
and  the  dock  was  filled  with  earth  and 
made  fast  land,  and  Dock  street  laid  out. 
It  does  not  certainly  appear  when  this  work 
was  completed,  but  by  the  agreed  statement 
of  facts  it  was  agreed  that  such  was  the  fact 
prior  to  1836,  and  prior  to  the  act  of  assem- 
bly next  to  be  mentioned.  By  chapter  63  of 
the  Acts  of  1836  It  was  enacted  as  follows : 

"Section  1.  Be  it  enacted  by  the  General  As- 
sembly of  Maryland,  that  the  mayor  and  dty 
council  of  Baltimore  shall  have  full  power  and 
authority  to  increase  the  width  of  Dock  street 
In  said  city,  to  eighty  feet,  and  to  fill  up  and 
make  said  street  of  the  width  aforesaid ;  and 
that  the  title  thereto,  when  so  made,  shall  be 
vested  in  the  mayor  and  city  council  of  Balti- 
more. 

"Sec.  2.  And  be  it  enacted,  that  the  mayor  and 
dty  council  of  Baltimore  Bhall_  be  and  hereby 
are  vested  with  the  right  and  title  to  any  land 
made,  or  to  be  made  by  them,  out  of  the  water, 
in  making  and  completing  the  improvement  oT 


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BRADY  ▼,  MAYOR  AND  CITY  COUNCIIi  OF  BALTIMORE 


143 


the  city  dock,  according  to  the  plan  heretofore 
adopted  by  them:  Provided  nevertheless,  that 
nothing  in  this  act  contained,  shall  be  construed 
to  interfere  with  the  vested  rights  of  individ- 
uals." 

By  Ordinance  No.  56,  approved  March  29, 
IStT,  the  city  commissioners  were  authorized 
an'd  directed  to  widen  Dock  street  30  feet 
from  its  northern  boundary  line  into  the  dock, 
thus  making  its  width  over  all  80  feet,  and  ap- 
propriating over  $6,000  for  the  purpose,  pro- 
vided the  proprietors  should  assent  to  a  re- 
linquishment of  all  rights  they  may  have  In 
Dock  street  On  April  25th  following  the 
proprietors  executed  an  agreement  whereby 
they  signified  their  full  assent  to  the  Im- 
provements made  under  the  Ordinance  No. 
13  of  the  year  1814,  and,  in  the  language  of 
the  agreement,  "hereby  absolutely  renounce 
and  relinquish,  abandon,  and  make  over  to 
the  corporation  of  the  city  of  Baltimore  for- 
ever all  the  right,  title,  and  Interest  which 
we,  or  any  of  us,  our  or  any  of  our  heirs  or 
iisslgns,  may  or  can  have  in  or  to  all  the  fol- 
lowing streets,  wharves,  block  or  pier,  etc., 
to  wit:  •  *  •  All  Dock  street."  They 
therein  ot>ligatcd  themselves  to  execute  a 
more  formal  assignment  to  the  corporation 
npon  its  request  or  whenever  required.  This 
agreement  was  signed  by  all  the  proprietors; 
Margaret  Cunyngham  signing  for  John  Cun- 
fogbam.  The  work  of  widening  was  then 
earried  to  completion  in  183&.  Numerous  or- 
dinances have  been  passed  looking  to  the  care 
and  mal  ntenance  of  the  dock  and  Dock  street. 
The  first  50  feet  of  the  street  have  been  pav- 
ed, it  has  lieen  lighted,  and  water  and  sewer 
pipes  have  been  Installed.  As  we  have  seen, 
the  lot  In  controversy  Is  within  the  lines  of 
lot  Mo.  28  extended  to  the  water,  and  la  sep- 
arated from  the  original  extension  of  said 
lot  by  the  original  50  feet  of  Dock  street. 

[1]  The  contention  of  the  appellants  is  baa- 
ed npon  the  rights  claimed  to  have  been  con- 
ferred upon  their  predecessors  In  title  by 
chapter  9, 1 10,  of  the  Acts  of  1745.  This  act, 
for  the  purpose  of  encouraging  persons  own- 
ing water  front  properties  In  Baltimore  to 
make  Improvements  In  front  of  their  prop- 
erties, provided: 

"That  all  improvements  of  what  kind  soever, 
either  wharves,  honses,  or  other  buildings,  that 
iMve  or  shall  be  made  out  of  the  water,  or 
where  it  usually  flows,  shall  (as  an  encouraee- 
ment  to  such  improvers)  he  forever  deemed  the 
right,  title  and  inheritance  of  such  improvers, 
their  hein  and  ossignB  forever." 

And  reasoning  from  that  act  and  the  de- 
cisions thereon,  they  argue  that  the  title  to 
all  Improvements  made  by  the  city  under  the 
ordinance  of  1814  became  vested  In  their 
predecessors  as  the  owners  of  the  fast  land 
as  soon  as  they  were  completed,  and  further 
argue  that,  such  being  the  case,  the  further 
extension  of  the  limits  of  their  lot  by  the 
Improvement  by  the  city,  under  the  act  and 
ordinance  of  1837,  vested  in  them  title  to  the 
land  in  question. 

Many  interesting  and  instructive  cases  are 


to  be  found  In  the  decisions  of  this  court  as 
to  the  rights  secured  to  property  owners  by 
virtue  of  this  statute,  such  as  that  the  ri- 
parian owner  had  no  vested  tide  to  the  land 
covered  by  water  immediately  in  front  of 
his  property,  nor  to  the  improvements  built 
out  of  the  water,  until  the  improvements  had 
been  actually  completed  (Glraud  v.  Hughes, 
1  GUI  &  J.  249),  and  that,  before  the  riparian 
owner  had  made  any  improvements  In  front 
of  his  property,  the  state  could  Intercept  his 
right  to  make  them  by  a  grant  of  the  land 
covered  by  water  (Casey  v.  Inloes,  1  Gill, 
430,  39  Am.  Dec.  66S;  Linthicum  v.  Coan, 
04  Md.  439,  2  AtX.  826,  54  Am.  Rep.  775). 
This  right  of  the  state  was  taken  away  by 
chapter  129  of  the  Acts  of  1862,  which  for- 
bade the  Issuance  of  any  patent  for  land  cov- 
ered by  navigable  water,  and  that  the  rights 
given  to  a  riparian  owner  under  the  act  was 
a  valuable  one,  of  which  he  could  uot  be  de- 
prived by  another  person  without  his  consent. 
Casey  v.   Inloes,  supra. 

For  the  disposition  of  this  case,  we  do  not 
find  it  necessary  to  enter  Into  a  discussion 
of  any  but  one  point,  for,  In  our  opinion,  the 
question  of  whether  or  not  the  appellee  had 
secured  title  to  the  entire  bed  of  Dock  street 
as  it  exists  to-day,  by  adverse  possession  set- 
tles this  case. 

In  the  ordinance  of  1814  It  was  made  a 
condition  precedent  to  the  making  of  the 
Improvements  that  the  proprietors  should 
signify  their  assent  to  the  plan.  This  by  Its 
terms  could  be  verbal  as  well  as  written.  It 
does  not  appear  from  the  record  whether  or 
not  this  assent  was  secured.  But  It  does  ap- 
pear that  the  money  appropriated  for  the 
work  on  the  above  condition  was  expended 
and  the  work  done.  Of  course,  at  this  far 
day,  there  Is  no  person  who  could  testify  a* 
to  that,  but  the  presumption  Is  that  the  pub- 
lic oflSclals  secured  such  assent  In  conform- 
ity with  their  expressed  duties.  From  th« 
plan  drawn  on  the  plat  It  appeared  to  any 
one  Interested  In  the  Improvement  that  the 
streets  around  the  dock  formed  a  very  Im- 
portant feature  of  the  Improvement,  and  they 
must  have  known  that  the  dock  would  be  of 
very  little  use  as  a  public  Improvonent  with- 
out these  streets  were  opened  to  the  public 
as  public  highways.  When  we  consider  that 
the  plan  provided  for  an  extension  of  lot 
28  of  approximately  250  feet,  thus  converting 
a  shallow  lot  into  one  of  good  depth,  and 
making  entrance  possllde  from  the  front  and 
rear.  Is  It  not  an  Irresistible  presumption  that 
the  then  two  owners  of  that  lot  gave  their 
assent  readily?  After  making  this  street,  the 
city  has  treated  it  just  as  any  other  thorough- 
fare of  the  city.  They  have  exercised  com- 
plete control  over  it  ever  since  until  the 
present  They  have  lighted  It,  paved  it,  put 
in  water  mains  and  sewers,  cared  for  It  In 
the  way  of  maintenance,  and  at  all  times 
has  It  been  open  to  the  public.  Not  since  It 
was  constructed  until  the  present  time  has 
there  been  a  claim  made  by  any  one  that  tha 


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city  had  not  acquired  an  easernent  in  said 
50-foot  street  for  a  public  tljoroughfare  over 
it  In  fact,  such  a  concession  was  made  by 
the  counsel  for  the  appellant  during  the  tak- 
ing of  testimony. 

The  situation  of  Dock  street  prior  to  the 
passage  of  chapter  63  of  the  Acts  of  1836,  so 
far  as  the  title  to  Dock  street  was  concern- 
ed, was  that  the  fee  to  the  bed  of  that  street 
was  in  John  Cunynie^ham,  subject  to  the  right 
of  travel  by  the  public  thereover ;  the  fee  in 
John  Cunyngham  having  been  acquired,  of 
course,  by  virtue  of  the  provisions  of  the  act 
of  1745.  It  was  during  this  situation  of  the 
title  that  the  Legislature  of  1837  passed  the 
net  Just  referred  to,  by  which  the  city  was 
given  the  authority  to  widen  the  street  to 
the  extent  of  30  feet,  and  granted  to  it  not 
only  the  fee  in  the  same  when  it  should  be 
constructed,  but  also  the  fee  to  the  original 
50  feet  already  constructed  and  then  in  use 
and  occupancy,  but  nevertheless  saving  to 
any  individuals  any  rights  with  which  they 
might  be  vested  under  the  act  of  1745  or  oth- 
erwise. It  was  after  this  that  the  ordinance 
of  March  29,  1837,  was  passed  directing  that 
the  improvement  provided  for  under  the  act 
of  1836  should  be  carried  into  effect,  provided 
that  first  the  proprietors  of  ground  bound- 
ing on  the  dock  should  execute  a  deed  ol 
conveyance  of  the  right  of  wharfage  and  the 
bed  of  the  street  to  the  city.  It  was  for  the 
purpose  of  accomplishing  that  result  that  the 
city  obtained  on  April  25,  1837,  the  paper 
which  we  have  referred  to  alwve.  While 
this  paper  is  very  Informally  drawn  and 
could  hardly  be  considered  of  such  legal  ef- 
fect as  to  convey  the  rights  which  it  purport- 
ed to  assign,  yet  nevertheless  it  does  have 
the  effect  of  showing  that  the  city  thought 
that  it  was  carrying  out  the  duty  Imposed 
upon  It  by  the  ordinance,  and  believed  that  it 
was  obtaining  a  fee-simple  title  to  the  bed 
of  the  street  already  built  and  about  to  be 
built,  in  consideration  of  making  the  addi- 
tional improvement.  Acting  on  the  belief 
that  title  had  been  obtained  by  it,  the  dty 
proceeded  with  the  work,  and  completed  it 
in  1839,  and  entered  into  possession  of  it  and 
continued  In  the  possession  of  the  original 
50  feet. 

[2]  As  we  have  said  above,  while  this  pa- 
per would  have  no  legal  eCTect  to  change  the 
title  to  the  street,  yet  It  does  have  a  great 
effect  in  showing  that  the  appellee  was  oc- 
cupying the  street  under  tlie  belief  that  the 
fee  to  the  same  was  vested  in  It,  and  that 
therefore  their  occupancy  was  under  claim 
of  a  supposed  right,  and  therefore  adverse. 
The  dty  continued  from  1839  to  so  occupy 
the  whole  of  Dock  street  until  the  year  1880, 
a  period  of  over  40  years,  before  claim  was 
made  by  any  one  to  any  portion  of  the  80-foot 
strip.  We  are  then  of  the  opinion  that  there 
was  abundance  of  evidence  from  which  it 
:ould  be  found  that  the  appellee  had  obtain- 
ed a  fee-simple  title  to  the  whole  of  Dock 


street  through  adverse  possession.  There- 
fore the  lower  court  was  correct  in  refusing 
to  rule  as  a  matter  of  law  that  there  was  no 
evidence  in  the  case  legally  suffident  to 
show  that  the  plaintlfT  had  acquired  any  ti- 
tle, interest,  or  estate  In  or  to  the  strip  of 
land  in  controversy.  The  ruling  of  the  court 
in  rejecting  the  prayers  of  the  appellant  deal- 
ing with  their  claim  to  the  benefit  of  the  law 
of  adversary  possession  as  applied  to  their 
occupancy,  was  correct,  for  the  reason  that 
this  court  has  held  that  prescription  will  not 
run  against  the  dty  or  the  public.  Cushwa 
V.  WiUlamsport,  117  Md.  318,  319,  83  Atl. 
389;  Ulman's  Case,  83  Md.  144,  145,  34  Atl. 
366. 

Finding  no  error  in  the  rulings  of  the 
learned  court  below,  we  will  affirm  the  judg- 
ment 

Judgment  affirmed,  costs  to  the  appellee. 


TOWN  OF  TILTON  ■ 


(78  M.  H.  4«> 
CITY  OP  CONCORD. 


(Supreme  Court  of  New  Hnmpshire.    Belkoap, 
June  5,  1917.) 

1.  Pattpers    «=»39(3)  — S«?rn,EMBNT— Rbqui- 

8ITE8. 

Where  the  paupers  had  no  settlement  in 
Concord,  except  tlirouph  the  fnther.  who  had 
not  wholly  (rained  his  settlement  durinir  the  ten 
years  preceding,  they  were  county  charges  in 
view  of  I.AW8  1903,  c.  106,  providing  that:  "'So 
town  shall  be  Uable  for  the  support  of  any  per- 
son unless  he,  or  the  person  under  whom  he 
derives  bis  settlement,  shall  have  wholly  gained 
a  settlement  therein  during  the  ten  years  pre- 
ceding the  last  date  of  application  for  support."' 
[Ed.  Note.— For  other  cases,  see  Paupers^ 
Cent  Dig.  {  164.) 

2.  Paupebs  «=341  — Dunxs  of  Ovbbbekkb  — 
Special  Request. 

I'nder  direct  provisions  of  Pub.  St  1901,  c 
84,  f  1,  it  is  the  duty  of  the  overseers  of  the 
poor  of  a  town  to  relieve  all  persons  therein 
unable  to  support  themselves,  and  no  special  re- 
quest need  be  shown. 

[Ed.    Note.— For    other   cases,    see   Paupers,. 
Cent  Dig.  H  182,  183.] 

3.  Paupers  ®=»52(6)  —  Pdhnishino  Relief  — 
Presumption. 

Where  relief  is  actually  furnished  to  tk 
person  in  distress,  it  is  presumed  to  be  done  at 
his  request 

[Ed.    Note.— For   other   cases,    see    PaupersL. 
Cent  Dig.  U  229-231.] 

4.  PaTTFEBS  «=>52(2)— LIABILIT7  MB  SUPPORT 

— Rbsidbrcb. 
Where  at  the  date  of  the  application  the 
paupers  had   no  settlement  in   Concord,   there- 
could  be  no  recovery  from  it  for  relief  given  by 
plaintiff  town. 

[Fid.    Note. — For   other   cases,   see   Paupers, 
Cent  Dig.  §S  216,  219,  220.] 

6.  PATJPBBS  «=»52(2)— LlABILlTT  FOB  SUPPORT 

.— Rbsidbncb. 

There  could  be  no  recovery  from  the  city 
where  alleged  paupers  had  a  settlement  if  there 
was  no  existing  necessity  for  the  relief  given  by 
plaintiff  town. 

[Ed.    Note.- For    other    cases,    see    Paupers. 
Cent  Dig.  H  216,  219,  220.] 


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ft.    PAtTPEBS  *=>52(6)  —  REI.IEF  TO  PAUPEBS  — 
PflESTrMPTION. 

BiCLch  item  of  pauper  snppoit  legallr  furnish- 
ed IB  prestimed  to  be  famished  upon  application 
then  made. 

[Ed.  Note. — For  other  cases,  see  Faapers, 
Cent.  Dig.  Si  229-231.] 

Transferred  from  Superior  Court,  Belknap 
County;   ELlvel,  Judge. 

Assumpsit  by  the  Town  of  Tllton  against 
the  City  of  Concord.  Transferred  on  an 
asrreed  statement  of  facts.  Judgment  for  de- 
fendant. 

Assumpsit  for  aid  furnished  paupers.  The 
paupers  are  the  widow  and  minor  cblldreu 
of  one  Moses  Ayotte,  who  acquired  a  settle- 
ment in  Concord  by  the  payment  of  poll 
taxes  for  the  years  1906  to  1912,  inclusive. 
In  1912  or  1913  Moses  removed  to  Laconla, 
where  he  died  February  22,  1914.  His  widow 
and  children  shortly  thereafter  moved  to 
Tllton,  where  July  1,  1914,  they  applied  to 
the  overseers  of  the  poor  of  Tllton  for  aid, 
which  has  since  been  continuously  furnish- 
ed tbem.  The  dty  of  Concord  reimbursed 
niton  for  all  sums  expended  for  the  paupers 
np  to  April  1,  1916,  and  then  refused  fur- 
ther payment  The  action  is  to  recover  for 
sums  expended  in  support  of  the  paupers 
between  June  19  and  September  19,  1916,  of 
which  due  notice  was  given  the  defendant 

Fletcher  Hale,  of  Laconla,  for  plaintiff. 
HolUs  &  Murchle,  of  Concord  (Alexander 
Murchle,  of  Concord,  orally),  for  defendant 

PAKSONS,  C.  J.  [1]  "No  tovra  shall  be 
liable  for  the  suptiort  of  any  person  unless 
be,  or  the  person  under  whom  he  derives  his 
settlement  shall  have  wholly  gained  a  set- 
tlement ther^n  during  the  ten  years  preced- 
ing the  last  date  of  application  for  support" 
Laws  1903,  c  106.  The  paupers  had  no  set- 
tlement except  that  derived  through  the  hus- 
band and  father,  Moses  Ayotte.  It  Is  con- 
ceded his  settlement  In  Concord  was  not 
wholly  gained  during  the  ten  years  preced- 
ing the  time  when  the  support  sued  for  was 
famished.  The  paupers  therefore  at  the 
time  the  aid  was  furnished  had  no  settlement 
In  Concord  and  were  county  charges.  Lan- 
caster V.  Coos  County,  74  N.  H.  439,  68  Atl. 
887;  P.  S.  c.  84,  {  1.  July  1,  1914,  they  ap- 
plied for  aid,  which  has  since  then  been  con- 
tinnously  furnished  them.  He  plaintiff  ar- 
gues that  July  1,  1914,  was  the  last  date  of 
application  for  aid,  and  that  the  true  c<m- 
Btrucdon  of  the  statute  Is  that  the  city  of 
Concord,  being  then  liable  to  support  the 
paupers,  continues  liable  as  long  as  support 
is  furnished  under  such  application.  But 
the  fact  stated  Is  that  the  api^lcatlon,  July 
1,  1914,  was  the  first  not  the  last  application 
for  aid.  April  1,  1916,  Concord  denied  fur- 
ther liability.  If  the  paupers  thereafter 
made  formal  application  for  the  assistance 
subsequently  furnished  between  June   19th 


and  September  19th,  the  defendant  Is  not  lia- 
ble upon  the  plaintiff's  construction  of  the 
statute. 

[2]  It  was  the  duty  of  the  overseers  of  the 
poor  of  Tllton  to  relieve  and  maintain  all 
persons  In  the  town  unable  to  support  them- 
selres.  P.  6.  c.  84,  {  1.  No  special  request 
was  required  if  assistance  was  necessary. 
Rumney  v.  Keyes,  7  N.  H.  571,  577. 

[3]  "Where  relief  is  actually  furnished  a 
person  in  distress,  It  Is  presumed  to  be  done 
at  the  request  of  him  who  had  it  and  no 
special  request  or  application  need  be  shown." 
Moultonborough  v.  Tuftonborough,  43  N.  H. 
316,  320.  That  the  supplies  furnished  In  the 
summer  of  1916  were  furnished  in  good  faith 
because  then  requested  or  applied  for  or  Ije- 
cause  the  situation  at  the  time  Implied  such 
request  or  application  was  the  foundation 
of  the  plalntlfTs  case.  Moultonborough  v. 
Tuftonborough,  supra.  As  to  the  necessity 
for  the  aid  and  the  good  faith  of  the  town 
oflSdals  no  facts  are  agreed. 

[4-1]  If  it  is  assumed  the  aid  was  furnished 
in  good  faith  because  then  needed  and  ex- 
pressly or  Impliedly  applied  for,  there  can 
be  no  recovery  because  at  the  date  of  the 
application  the  paupers  had  no  settlement  In 
Concord.  If  the  facts  are  otherwise,  and  the 
aid  was  furnished  because  applied  for  two 
years  before  without  existing  necessity,  there 
could  be  no  recovery  even  if  the  recipients 
had  a  settlement  in  Concord.  Each  item  of 
pauper  support  legally  furnished  is  presumed 
to  be  furnished  upon  application  then  made. 

Judgment  for  the  defendant  All  concur- 
red. 


(78  N.  H.  378) 

COGSWELL  ▼.  BOSTON  &  M.  R.  R. 

(Supreme   Cotut  of  New   Hampshire.     Merri- 
mack.   April  3,  1917.) 

1.  Canceixation  or  Instbuments  «=»37(5)— 
Reuef  in  Equity— Mistake— BrLii—STJFFi- 

CIENCT. 

A  bill,  alletring  that  injuries  resulting  in 
death  of  the  releasor  were  unknown  to  both  par- 
ties when  the  settlement  evidenced  by  the  release 
was  made,  and  that  the  release  agreed  on  was 
only  intended  as  compensation  for  the  damage 
to  releasor's  vehicle  and  his  personal  injury  of 
lameness  in  the  shoulder,  is  sufficient  to  auuior- 
ize  a  decree  setting  aside  the  release. 

[Ed.  Note.— For  other  cases,  see  Cancellation 
of  Instruments,  Cent  Dig.  fS  68,  74,  77,  79,  80.] 

2.  Reijcase  <S=>16— Reukf  in  Equity— Mis- 
take— Nature  or  Mistake. 

Where  the  releasor  at  the  time  he  was  in- 
jured was  suffering  from  chronic  Bright's  dis- 
ease and  received  an  injury  to  his  shoulder 
and  his  back  and  gave  a  release  which  the  de- 
fendant secured  for  the  purpose  of  avoiding 
litigation,  without  fraud  or  compulsiouj  a  subse- 

auont  aggravation  of  his  disease  by  his  injury, 
iiough  both  parties  were  ignorant  of  such  con- 
dition, did  not  show  such  a  mutual  mistake  as 
to  warrant  setting  aside  the  release,  which  was 
conclusive. 

[Ed.    Note.— For    other    cases,    see   Release, 
Cent  Dig.   {  31.] 


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3.  Reu:&8b  «s>16— Rkuet  in  Equitt— Mis- 
take. 

Ignorance  of  a  fact  which,  if  known,  would 
have  prevented  the  making  or  altered  the  terms 
of  a  release  does  not  alone  authorize  rescission, 
since  the  release  cannot  be  disturbed,  unless  the 
fact  of  whirh  the  parties  were  ignorant  was  a 
material  inpredicnt  in  the  contract  and  disap- 
points their  intention  by  mutual  error. 

[Eid.  Note.— For  other  cases,  see  Release,  Cent 
Dig.  I  31.] 

4.  Cancellation  or  Instbitments  €=»37(1) — 
Relief  in  Equity— Plbadino — Grounds. 

A  claim  that  a  release,  if  valid  against  the 
releasor,  is  not  an  nnswer  to  the  suit  by  his 
executor,  claiming  damages  for  the  injury  as  to 
which  the  release  was  piven,  which  resulted  in. 
death  of  the  releasor,  is  an  answer  nt  law  to 
the  plea,  and  presents  no  ground  for  equitable 
intervention. 

lEiA.  Note. — For  other  cases,  see  Cancellation 
of  Instruments,  Cent  Dig.  §S  06-68,  71.] 

5.  Death  «=5>25 — Sdbvival— Tobt  Actions— 
Rights  of  Executob. 

Where  an  iajured  person  had  given  a  re- 
lease from  all  litigation  ari^'ing  from  the  inju- 
ries, his  executor  could  not  mnintnin  suit  for 
death  resulting  from  such  injurie.s,  since  Pub. 
St  1901,  e.  l!tl,  §§  S-12,  provides  for  survival 
uf  existing  causes  of  action,  but  not  for  causes 
which  have  been  extinguished. 

[Ed.  Note.— For  other  cases,  see  Death,  Cent. 
Dig.  {  27.] 

Exceptions  from  Superior  Court,  Merri- 
mack County. 

BUI  by  Edward  N.  Cogswell,  executor  of 
Josiah  W.  Emery,  deceased,  against  the 
Boston  &  Maine  Railroad.  On  excpptlons  by 
plaintiCf  and  defendant  to  the  orders  of  the 
judge.  Plaintiff's  exceptions  overruled,  and 
bill  dismissed. 

Bill  In  equity  In  aid  of  an  action  at  law. 
ITie  plaintiff  brought  action  against  the  de- 
fendants, claiming  the  death  of  his  testator, 
Josiah  W.  Emery,  was  occasioned  by  the 
defendants'  negligence.  The  defendants 
pleaded  the  general  issue,  with  a  brief  state- 
aient  setting  up  a  release,  under  seal,  of  all 
olalms  against  the  defendants  in  consequence 
of  the  accident  and  injury  referred  to  in  the 
plalutill's  declaration  and  executed  by  the 
plaintiff's  testator,  December  26, 1013.  There- 
upon the  plaintiff  brought  this  bill  to  have 
the  release  set  aside  upon  the  ground  that  it 
was  executed  upon  a  mutual  mistake  as  to 
Ibe  Identity,  character,  and  extent  of  the  in- 
juries which  had  been  received  by  Emery, 
and  In  entire  ignorance  of  the  principal  in- 
juries whidi  resulted  in  his  death  and  on  ac- 
(wunt  of  which  the  action  was  brought  The 
defendants  answered,  denying  the  allegations 
of  the  Ull.  The  plaintiff  then  claimed  in  an 
amendment  to  the  bill  that  the  release  ex- 
ecuted by  Emery  befoi-e  his  death  was  not  a 
bar  to  the  suit  brought  by  his  executor, 
claiming  damages  for  the  death  resulting 
from  the  injury.  The  cause  was  heard  upcm 
the  pleadings  by  Branch,  J.,  who  found  the 
following  facts:  December  24,  1913,  Josiah 
W.  Emery  was  struck  uiJon  a  grade  crossing 
liy  the  defendants'  motor  section  car,  and 
tin-own  out  of  the  sleigh  in  which  he  was 


j  riding.  The  only  Injur;  of  which  he  com- 
plained was  a  lame  shoulder,  side,  and  back. 
He  drove  home,  and  then  drove  to  Hennlker 
village,  a  mile  and  a  half,  for  liniment  and 
alcohol,  which  bis  wife  applied  for  several 
days.  There  was  a  large  black  and  blue  spot 
below  his  right  shoulder  and  a  small  one  In 
the  small  of  his  back  above  bis  right  hip. 
The  deceased  did  bis  farm  work  as  usual  the 
day  of  the  accident  and  the  following  day. 
On  December  28th,  as  he  was  driving  to  Hen- 
nlker, he  met  the  claim  agent  of  the  railroad, 
who  drove  with  blm  to  the  railroad  station, 
and  on  the  way  talked  about  a  settlement 
The  only  claim  of  personal  injury  then  made 
by  Emery  was  a  little  lameness  of  the  shoul- 
der. Twenty-five  dollars  was  agreed  upon  to 
settle  the  claim  for  both  personal  and  prop- 
erty damage.  A  release  was  drawn  up,  which 
was  read  by  Mr.  Emery,  was  read  over  to 
him,  and  was  fully  understood  by  him.  There 
was  no  fraud. 

Some  time  in  January,  Mr.  Emery  began  to 
be  troubled  with  shortness  of  breath.  About 
the  middle  of  February,  he  gave  up  all  work, 
and  died  March  1,  1914.  February  16th  he 
first  consulted  a  doctor,  who  thought  him 
afflicted  with  Brigbt's  disease,  a  diagnosis 
which  was  subsequently  confirmed.  The 
plaintiff  claimed  that  Brigbt's  disease  result- 
ed from  the  Injury.  From  the  medical  testi- 
mony the  court  found  that  Emery's  death 
was  caused  by  chronic  Brlght's  disease,  which 
be  must  have  had  for  a  considerable  time  b«>- 
fore  the  accident,  and  that  the  accident  could 
In  no  way  be  regarded  as  the  cause  of  the 
disease,  but  the  effect  of  the  fall  was  to  ac- 
celerate the  course  of  the  disease  and  to 
hasten  death. 

Neither  Emery  nor  the  claim  agent  had 
Itnowledge  of  Emery's  bodily  condition,  which 
rendered  the  results  of  the  accident  more 
serious  to  him  than  they  might  otherwise 
have  been.  The  dalm  ag^it,  for  the  purpose 
of  avoiding  litigation.  Intended  to  settle  once 
and  for  all  every  claim  which  Emery  had  or 
might  have  in  the  future  growing  out  of  this 
accident  Hie  release  so  stated,  and  It  was 
so  understood  by  Mr.  Emery.  The  railroad 
Intended  to  buy  Its  peace. 

The  court  ruled  that  these  facts  present  a 
case  where  a  contract  was  fairly  entered  Into 
by  both  parties,  and  where  the  tecma  of  the 
contract  were  themselves  fair,  in  view  of 
the  facts  which  the  parties  knew  at  the  time, 
but  a  case  where  both  parties  contracted  in 
ignorance  of  an  Important  fact  which,  If 
known,  would  have  materially  altered  the 
terms  of  the  agreement  and  found  that  this 
is  not  a  case  where  the  parties  "negotiated 
upon  a  mutual  understanding  tliat  It  was 
doubtful  who  was  to  blame  for  the  acddoit 
and  what  the  plaintiff's  Injuries  might  turn 
out  to  be,"  and  where  "both  parties  intended 
to  take  the  risk  of  loss  as  It  might  there- 
after appear,"  but  that  It  is  rather  a  case 
wh«>re  wltliout  reference  to  the  question  of 
liability  the  amount  paid  depended  upon,  and 


«%=»For  other  cues  see  ume  tcp<e  and  KEY-NUMBER  Id  all  Key-Numbered  Digest!  and  Indexea 

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N.  H.) 


COGSWELL  V.  BOSTON  &  M.  R.  B. 


147 


was  Intended  "In  some  degree  to  be  com- 
mensurate with,  existing  Injuries,"  and  made 
the  following  orders:  (1)  That  the  prayer  of 
amended  bill  be  denied  as  matter  of  law,  and 
the  plaintiff  excepted.  (2)  That  the  release 
be  set  aside  upon  the  ground  that  It  was  ex- 
ecuted by  reason  of  a  mutual  mistake  of 
fact,  and  the  defendants  excepted.  ISie 
defendants  also  excepted  to  the  denial  of 
th^r  motion  for  the  dismissal  of  the  bill 
made  at  the  close  of  aU  the  evidence,  and  to 
the  findings  as  to  the  character  of  the  case 
upon  the  groimd  that  they  were  unsupported 
by  the  evidence  and  were  inconsistent  with 
prior  special  findings. 

Joseph  S.  Matthews  and  Martin  &  Howe, 
all  of  Concord,  for  plaintiff.  Streeter,  De- 
mond,  Woodworth  ft  Sulloway,  of  Concord, 
for  defendant. 

PARSONS,  C.  J.  The  plaintiff's  testator, 
Emery,  was  thrown  from  Ills  sleigb  Decem- 
ber 24,  1913,  by  a  collision  with  the  defend- 
ants' motor  section  car  upon  a  highway 
grade  crossing  of  the  defendants'  road.  He 
died  March  1,  1914.  The  plaintiff  brought 
suit  against  the  defendants,  claiming  the 
death  was  caused  by  the  collision,  which  was 
alleged  to  have  been  due  to  the  defendants' 
negligence.  In  answer,  the  defendants  plead- 
ed a  release  under  seal  executed  two  days 
after  the  accident.  This  purported  to  be  a 
release  and  discbarge  of  all  causes  of  action 
arising  ont  of  the  accident.  Thereupon  the 
plaintiff,  in  accordance  with  the  procedure 
suggested  in  Mclsaac  v.  McMurray,  77  N.  H. 
4(56,  93  Atl.  115,  L.  R.  A.  1916B,  769,  brought 
this  bill  to  set  the  release  aside. 

[1]  The  bill  alleges  that  the  Injuries  which 
resulted  in  Emcir's  death  were  unknown  to 
Ijoth  parties  when  the  settlement  evidenced 
by  the  release  was  maide,  and  that  the  con- 
tract of  settlement  then  agreed  upon  was 
only  Intended  as  compensation  for  the  dam- 
age to  Bmery's  sleigb,  and  the  only  personal 
injury  of  which  Bmery  then  complained,  "a 
little  lameness  in  the  shoulder."  The  allega- 
tions are  sufficient  to  authorize  a  decree  for 
tlie  plaintiff  within  the  rules  laid  down  in 
Mclsaac  v.  McMurray,  in  which  the  subject 
of  reformation  or  rescission  for  mistake  is 
fully  considered.  It  was  there  pointed  out 
that  a  release  under  seal  was  the  written  evi- 
dence of  a  contract  made  by  the  parties,  and 
tbat  if  by  mistake  in  a  material  matter  the 
documentary  evidence  failed  to  state  ac- 
curately the  Intention  of  the  parties — 1.  &, 
the  contract— equity  had  power  in  a  proper 
case  to  give  relief.  In  that  case,  whlc^  was 
also  a  suit  for  personal  damages  caused  by 
negligence,  it  was  claimed  that  the  real  con- 
tract between  the  parties  was  not  for  the  set- 
tlement of  all  c<mtroversy  between  them  in 
reference  to  the  defendants'  liability  for  the 
plaintiff's  injuries,  but  was  merely  to  give 
the  plaintiff  compensation  for  certain  known 
injuries,  and  that  at  that  time  plaintiff  had 
reoeiTed  a  serious  injury,  a  broKen  hip,  of 


which  injury  both  parties  were  In  Ignorance 
at  the  time  of  the  contract  of  settlement.  It 
was  held  that  these  facts,  if  so  proved  as  to 
overcome  the  weight  of  the  written  document 
as  evidence,  would  authorize  the  rescinding 
of  the  release  so  far  as  it  was  in  conflict 
with  the  contract  of  the  parties. 

The  mistake  claimed  being  mutual  Igno- 
rance at  the  time  of  the  contract  of  the  seri- 
ous injury  to  the  plalntUTs  hip,  it  was  said: 

"Upon  these  facts,  the  question  arises  whether 
the  mistake  related  to  a  matter  that  was  mate- 
rial to  the  contract  of  settlement  The  fact  that 
the  parties  were  justifiably  ignorant  of  the  se- 
rious injury  to  the  plaintiff's  hip  does  not  alone 
show  that  the  mistake  was  in  respect  to  a  ma- 
terial matter.  Whether  it  was  or  not  depends 
upon  the  intention  of  the  parties  in  makinz  the 
contract.  If  their  purpose  was  to  termmate 
all  dispute  and  litigation  between  them  in  ref- 
erence to  the  defendant's  liainllty  for  negli- 
gence in  causing  the  piaiutifTs  injuries,  *  *  * 
the  mistake  as  to  the  extent  of  his  injuries 
would  be  immaterial."  Mclsaac  v.  McMurray, 
7T  N.  H.  466,  472,  473,  93  AU.  115,  118  (L. 
R.  A.  1916B.  769). 

The  question  In  that  case  arose  upon  the 
pleadings,  and  It  is  clearly  stated  that  the 
matter  to  be  determined  by  proof  was  the 
actual  contract.  What  did  the  parties  intend  ? 
What  was  the  proposition  upon  which  the 
minds  of  the  parties  met?  Was  it  the  re- 
lease of  the  defendant  from  all  further  lia- 
bility to  answer  for  the  consequences  of  the 
accident,  or  the  amount  of  compensation  that 
ought  to  be  paid  for  a  certain  known  In- 
Jury? 

[2]  In  this  case  the  plaintiff  failed  upon 
hearing  to  establish  a  tangible.  Independent 
injury  existing  at  the  time  of  the  settlement 
of  which  the  parties  were  Ignorant  The  fact 
found  of  which  the  parties  were  Ignorant  was 
that  at  the  time  of  the  accident  Emery  was 
afflicted  with  chronic  B  right's  disease  which 
he  had  had  for  some  time  before.  This  dis- 
ease caused  his  death.  The  disease  was  not 
caused  by  the  accident,  but  the  effect  of  the 
fall  was  to  accelerate  the  course  of  the  dis- 
ease and  thus  to  hasten  death.  The  settle- 
ment which  the  release  was  offered  to  prove 
was  made  between  E^ery  and  the  defendant's 
claim  agent  It  is  fom>d  that  the  claim  agent 
for  the  purpose  of  avoiding  litigation.  In- 
tended to  settle  once  and  for  all  every  claim 
which  Bmery  bad  or  might  have  In  the  future 
growing  out  of  this  accident  The  release  so 
stated.  It  waa  so  understood  by  Emery. 
The  railroad  intended  to  buy  Its  peace.  This 
was  an  offer  of  a  certain  sum  In  full  of  all 
claims  which  could  arise  out  of  the  accident, 
knowingly  accepted,  without  fraud  or  com- 
pulsion by  the  party  to  whom  the  offer  was 
made.  Emery's  acceptance  of  the  offer  which 
he  understood  completed  the  contract  Mc- 
DanleU  v.  Bank,  29  Vt  230,  235,  70  Am.  Dec. 
406.  The  contract  proved  by  parol  Is  the 
precise  contract  proved  by  the  written  evi- 
dence, the  release  pleaded.  There  is  no  evi- 
dence to  support  the  conclusion  that  the  rail- 
road Intended  to  pay  $25  In  compensation  for 


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148 


101  ATLANTIC  REPORTBB 


(N.H. 


tbe  lame  shoulder  and  fractured  sleigh,  leav- 
ing open  the  question  of  liability  to  make 
compensation  for  other  Injury  or  other  re- 
sults than  temporary  lameness,  or  that  Emery 
80  understood.  The  conclusion  that  such  was 
the  contract  is  not  supported  by  evidentiary 
findings  which  establish  a  different  contract. 

[I]  Upon  these  facts  the  trial  court  ruled 
that  the  facts  presented  a  case  where  a  con- 
tract was  fairly  entered  into  by  both  parties, 
and  where  the  terms  of  the  contract  were 
themselves  fair  in  view  of  the  facts  which  the 
parties  knew  at  the  time,  but  a  case  where 
both  parties  contracted  in  ignorance  of  an 
Important  fact,  which,  if  it  had  been  known, 
would  have  altered  the  terms  of  the  agree- 
ment But  ignorance  of  a  fact  which,  if 
known,  would  have  prevented  the  making  or 
altered  the  terms  of  an  agreement  does  not, 
of  itself,  authorize  the  rescission  of  an  agree- 
ment In  this  case  both  parties  knew  that 
EJmery  had  sustained  a  fall,  necessarily  caus- 
ing more  or  less  shock  to  his  system.  What 
the  result  would  be  they  could  not  know. 
If  they  had  known  of  his  bodily  condition, 
they  might,  with  the  aid  of  medical  advice, 
nave  anticipated  more  serious  consequences 
from  thj  shock  than  they  would  have  antici- 
pated in  the  case  of  a  similar  person  in 
good  health.  Whether  their  ignorance  re- 
lated to  a  past  or  existing  fact  or  to  a  future 
uncertain  result  need  not  be  determined.  Mo 
Isaac  V.  McMurray,  supra,  77  N.  H.  p.  475, 
03  AtL  115 ;  8.  c.,  I*  R.  A.  1916B,  note  page 
777. 

The  most  favorable  view  of  the  findings  for 
the  plaintiff  is  that,  unknown  to  the  parties, 
Emery  at  the  time  of  the  settlement  had  re- 
ceived from  the  accident  a  shock  to  his 
system  liable  to  be  followed  by  serious  re- 
sults. Conceding  for  the  purpose  of  the 
discussion  that  this  constitutes  an  additional 
injury  of  which  the  parties  were  Justifiably 
ignorant  at  the  time  the  contract  was  made, 
does  such  ignorance  authorize  the  cancella- 
tion of  the  contract?  The  contract  may  not 
be  disturbed  unless  the  fact  of  which  the 
parties  were  Ignorant  was — 

"a  material  Insredient  in  the  contract  of  the 
parties,  and  disappointfi  their  intention  by  a 
mutual  error.  But  where  each  party  is  equal- 
ly innocent,  and  there  is  no  concealment  of  facta 
which  the  other  party  has  a  right  to  know,  and 
no  Burpriee  or  imposition  exists,  the  mistake  or 
ignorance,  whether  mutual  or  unilateral,  is 
treated  as  laying  no  foundation  for  equitable 
interference.  It  is  strictly  damnum  absque 
injuria."  1  Story,  Eq.  §  151;  Mclsaac  v.  Mc- 
Murray. snpra,  77  N.  H.  473,  93  AtL  115,  L. 
R.  A.  WlfiB,  769. 

"There  are  many  extrinsic  facts  surronnding 
every  business  transaction  whirh  have  an  im- 

gortant  bearing  and  influence  upon  its  results, 
ome  of  them  are  generally  unknown  to  one  or 
both  of  the  parties,  and,  if  known,  might  have 
prevented  the  transaction.  In  such  cases,  if  a 
court  of  equity  could  intervene  and  grant  re- 
lief, because  a  party  was  mistaken  as  to  such 
a  fact  which  would  have  prevented  him  from 
entering  into  the  transaction  if  he  had  known 
the  truth,  there  would  be  such  uncertainty  and 
inatal^ty  in  contracts  as  to  lead  to  much  em- 


barrassment As  to  an  such  facta,  a  party  must 
rely  upon  his  own  circumspection,  ezaminaticHi, 
and  inquiry;  and,  if  not  imposed  upon  or  de- 
frauded, he  must  be  held  to  his  contracts." 
Dambmann  v.  Schulting,  75  N.  X.  55,  64. 

"The  fact  concerning  which  the  mistake  is 
made  m:ust  be  material  to  the  transaction  affect- 
ing its  substance,  and  not  merely  its  incidents. 

♦  •  •  If  a  mistake  is  made  by  one  or  both 
parties  in  reference  to  some  fact  wliich,  though 
connected  with  the  transaction,  is  merely  in- 
cidoutai,  and  not  a  part  of  the  very  subject- 
matter,  or  essential  to  any  of  its  terms  *  *  * 
the  mistake  will  not  be  ground  for  any  relief 
affirmative  or  defensive."  2  Pom.  £q.  Jur.  f 
&56. 

"The  fact  involved  in  the  mistake  must  have 
been   as   to   a   material   part   of   the   contract, 

•  •  ♦  an  intrinsic  fact;  that  is  not  •  »  • 
material  in  the  sense  that  it  might  have  bad 
weight  if  known,  but  that  its  existence  or  non- 
existence was  intrinsic  to  the  transaction,  one 
of  the  things  actually  contracted  about"  Kow- 
alke  V.  Electric  Co.,  103  Wis.  472,  79  N.  W. 
702,  74  Am.  St  Rop.  877. 

See  Kerr  on  Fraud  and  Mistake,  p.  433; 
Laldlaw  V.  Organ,  2  Wheat.  178,  4  h.  Kd. 
214;  Hecht  r.  BatdieUer,  147  Mass.  335, 
338^  17  N.  E.  651,  9  Am.  St  Rep.  708. 

Whether  the  fact  now  in  question  Is  ma- 
terial, intrinsic,  a  part  of  the  subject-matter, 
is  answered  by  the  finding  what  the  contract 
was.  If  the  contract  was  to  make  oompensu- 
tlon  to  Emery  for  Injuries  received  in  the 
accident,  the  unknown  injury  was  a  material 
part  of  the  contract  In  such  case  the  sub- 
ject-matter was  the  injuries  received.  This 
position  was  well  put  by  counsel  In  argument 
In  the  claim  that  what  Emery  sold  was  a 
lame  shoulder,  not  a  death-hastening  shock. 
The  same  argument  was  made  in  Mclsaac 
V.  McMurray,  that  the  sale  was  of  certain 
bruises,  not  of  a  broken  hip. 

But  the  fact  as  found  is  that  the  subject- 
matter  of  the  contract  was  the  avoidance  of 
future  litigation.  The  offer  to  pay  a  certain 
sum  to  settle  once  and  for  all  every  claim 
growing  out  of  the  accident,  knowingly  ac- 
cepted by  Emery,  was  the  contract  Etaiery 
having  accepted  the  money  tendered  on  such 
conditions,  is  bound  by  his  acceptance  of  the 
terms.  It  is  found  as  a  fact  that  the  rail- 
road Intended  to  buy  Its  peace.  The  subject- 
matter  of  the  contract,  that  which  the  parties 
bought  and  sold,  using  the  language  of  coun- 
sel, was  not  Emery's  injuries,  but  the  rail- 
road's peace.  The  extent  of  Emery's  Injury 
did  not  affect  the  subject-matter  of  the  con- 
tract 

It  may  be  the  amount  paid  or  to  be  paid 
was  determined  with  reference  to  the  injuries 
understood  to  have  been  received,  but  the 
manner  in  which  the  compensation  considered 
sufficient  was  arrived  at  Is  not  necessarily 
part  of  the  subject-matter.  Doubtless  the 
parties,  although  intending  to  settle  the 
whole  matter,  might  have  made  their  settle- 
ment dependent  upon  the  receipt  by  E^ery 
of  adequate  compensation  for  past  and 
future  damage  resulting  from  the  injury, 
but  the  explicit  finding  that  the  subject  of  the 
contract  was   the  avoidance  of  all  future 


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STATE  V.  WARNER 


149 


litigation  renders  impossible  such  Interpreta- 
tion of  the  contract  In  this  case. 

Ttae  subsequent  general  findings  or  rulings 
made  by  tbe  court  are  inconsistent  witb  the 
special  finding  what  the  contract  was.  The 
exceptions  thereto,  to  the  denial  of  the  motion 
to  dismiss,  and  to  the  decree  setting  aside  the 
release  are  sustained. 

[4]  There  was  no  error  In  the  order  deny- 
ing the  prayer  of  the  amended  bill.  The 
claim  therein  set  up  that  the  release,  if 
valid  against  a  suit  by  Emery,  is  not  an  an- 
swer to  the  suit  by  his  executor  claiming 
damages  for  an  injury  resulting  in  deatli,  if 
sound,  IS  an  answer  at  law  to  the  plea,  and 
presents  no  ground  for  equitable  intervention. 

f5]  As  to  the  question  of  law  which  has 
been  argued,  it  seems  sufllctent  to  say  that, 
Emery's  cau.se  of  action  having  been  dis- 
charged before  his  death,  none  was  in  ex- 
istence at  his  death  upon  which  his  executor 
can  maintain  a  suit.  P.  S.  c  191,  H  8-12, 
provides  for  the  survival  of  existing  caus- 
es of  action  in  case  of  the  death  of  one  of 
the  parties.  No  action  is  given  the  executor 
upon  a  cause  which  has  been  extinguished 
by  Judgment  or  contract  In  the  testator's  life- 
time. See  Louisville  Ry.  v.  Raymond.  1.^5 
Ky.  738,  123  S.  W.  281,  2T  I/.  R.  A.  (N.  S.)  176, 
and  notes.  The  plalntlfTs  exception  Is  over- 
ruled. 

Bill  dismissed.    All  concurred. 


(91  vt.  3M) 


STATE  V.  WARNER. 


(Supreme  Court  of  Vermont    Windsor.    May  1, 
1917.) 

1.  Cbimiwai,  Law  «=»384— Dbfensib— Ina^N- 

ITT — EVIDENCI! — ADMISSIBIUTT. 

Where  one  areused  of  murder  defended  on 
the  ground  of  insanity,  and  offered  testimony 
tending  to  show  that  a  diseased  mental  condition 
lipjran  two  years  before  the  alleged  offense,  tes- 
timony of  persons  who  knew  him.  as  to  his  sani- 
ty, for  a  considerable  period  prior  to  the  of- 
fense, was  not  inadmissible  as  too  remote. 

[Ed.   Note.— For    other    cases,    see    C5riminal 
Liw,  Cent  Dig.  }  848.] 

2.  HojaciDE  ^=»179  —  Defenses  —  Insahitt 
^KviDENCE — Admissibility. 

When  one  accused  of  murder  puts  his  men- 
tal condition  in  issue  by  evidence  tending  to 
show  Insantty,  his  whole  life  may  be  canvassed 
for  evidence  bearing  upon  that  question,  and  his 
ancestry  and  family  history  may  be  investigated. 
[Ed.  Note.— For  other  cases,  see  Homicide, 
Cent.  Dig.  {  380.] 

3.  Homicide  €=179  —  Defenses  —  Insahitt 
— ^Evidence— Admissibility. 

One  accused  of  murder  cannot,  by  limiting 
bi?  own  evidence  as  to  his  alleged  insanity  to  a 
certain  period  of  time,  circumscribe  the  inquiry 
on  behalf  of  the  prosecution. 

[Ed.   Note.— For  other  cases,   see  Homicide, 
Cent.  Dig.  {  380.] 

4.  Homicide  «=>151(2)  —  Defenses  —  Insan- 
ITT — Evidence— Admissibility. 

When  one  accused  of  murder  introduces  evi- 
dence tending  to  show  that  he  was  Insane,  the 
burden  is  upon  tbe  state  to  show  all  the  circum- 
stances affecting  the  question  of  sanity;  since  it 


is  the  state's  duty  as  well  to  prevent  conviction 
of  an  insane  person  as  to  prevent  a  sane  per< 
son    from    escaping   punishment. 

[E3d.  Note. — For  other  cases,  see  Homicide, 
Cent  Dig.  {  277.] 

6.  Cbiminax  Law   «=>1169(2)  —  Apfeai.  — 

Habmless  E>brob. 
Admission  of  improper  evidence  to  establish 
an  undisputed  fact  is  harmless  error. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §  3138.] 

6.  HoMiciDB    «=151(2)— Defenses— Inbanitt 
—Burden  of  Pkoof. 

Where  one  accused  of  murder  defends  on  the 
ground  of  insanity,  the  burden  is  on  the  state 
to  establish  his  sanity  as  an  intrinsic  element 
of  the  crime. 

[Ed.  Note.— For  other  cases,  see  Homicide, 
Cent  Dig.  |  277.] 

7.  Homicide    'S=>151(2)— Defenses— Insanity 
—Burden  of  Proof. 

Sanity  being  the  normal  condition  of  the  hu- 
man mind,  the  law  presumes  that  one  accused  of 
murder  is  sane ;  but  insanity  is  not  an  aflirma- 
tive  defense. 

[Ed.  Note. — For  other  cases,  see  Homicide, 
Cent  Dig.  {  277.] 

8.  Homicide    <s=»151(2),    237— Dkfbhses— Iw- 

BAN  ITY — I  NBTBDCTIOna. 

In  prosecution  for  murder,  defended  on  the 
ground  of  insanity,  instruction  that  it  is  the 
burden  of  the  defendant,  in  the  first  instance,  to 
malce  proof  on  the  issue  of  his  sanity,  but  that 
when  it  was  in  the  case  his  sanity  must  be 
proved  beyond  a  reasonable  doubt,  was  proper. 

lEd.  Note.— For  other  cases,  see  Homicide, 
,Cent  Dig.  }S  277,  600.J 

Exceptions  from  Windsor  County  Court; 
Franlc  L.  Fish,  Judge. 

George  Warner  was  convicted  of  murder, 
and  he  excepts.    Affirmed. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASELTON,  POWERS,  and  TAY- 
LOR, JJ. 

H.  G.  Barber,  Atty.  Gen.,  and  Bert  E. 
Cole,  State's  Atty.,  of  Windsor,  for  the  State. 
Fred  G.  Bicknell,  of  White  River  Junction, 
for  respondent 

POWERS,  J.  [1]  George  Warner  has  been 
convicted  of  murder  in  the  first  degree.  The 
homicide  was  committed  In  the  town  of  An- 
dover  on  November  4,  1914,  and  Henry  Wig- 
gins was  Its  victim.  The  respondent  brings 
here  but  two  questions,  neither  of  which  re- 
quires any  particular  statement  of  the  evi- 
dence. He  Introduced  some  evidence  tend- 
ing to  show  that  he  was  Insane  at  the  time 
of  the  homicide,  and  tliat  this  mental  un- 
soundness developed  about  two  years  be- 
fore that  event  Thereupon  the  state  pro- 
duced various  witnesses,  who  had  known 
the  respondent  for  many  years  preceding 
the  trial,  and  after  they  had  testified  to 
certain  facts,  circumstances,  and  observa- 
tions, they  were  allowed,  subject  to  the  re- 
spondent's exception,  to  predicate  thereon 
opinions  of  Ills  mental  soundness.  The  only 
question  raised  below  or  made  here  regard- 
ing the  admissibility  of  tills  testimony  is 
that  it  was  too  remote.  In  view  of  the  evl- 


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(Vt 


dence  of  the  respondent,  and  It  Is  Insisted 
that  these  witnesses  should  have  been  limit- 
ed to  opinions  based  upon  facts  observed 
within  the  two  years  preceding  the  crime — 
the  period  covered  by  the  respondent's  evi- 
dence. The  exception  Is  without  merit.  Re- 
moteness is  ordinarily  a  question  addressed 
to  the  discretion  of  the  trial  court  State 
V.  Bean,  77  Vt  384,  60  AU.  807;  Smith  v. 
C.  V.  Ry.  Ck>.,  80  Vt.  208,  67  Atl.  535 ;  Belka 
v.  Allen,  82  Vt  456,  74  AtL  91;  Perking  v. 
Perley,  82  Vt  624,  74  Atl.  231.  There  is 
nothing  in  the  record  before  us  to  take  the 
case  out  of  the  mle. 

[2-C]  When  a  respondent  puts  his  mental 
condition  in  issue  by  the  introduction  of  evi- 
dence tending  to  show  his  insanity,  he  opens 
an  Inquiry  that  may  take  a  very  wide  range ; 
how  wide  depends  upon  the  circumstances 
of  the  case  in  hand.  Undh.  Cr.  Ev.  {  160; 
1  Wig.  Ev.  {  233.  Broadly  speaking,  his 
whole  life  may  be  canvassed  for  evidence 
bearing  upon  the  question,  and  his  ancestry 
and  family  history  may  be  investigated.  In 
this  very  case,  the  respondent  properly  In- 
troduced evidence  tending  to  show  insanity 
in  bis  ancestors,  and  asked  the  jury  to  be- 
lieve that  the  seeds  of  the  malady  came  to 
him  by  inheritance.  In  these  circumstances, 
if  not  otherwise,  it  was  proper  for  the  state 
to  show  that  mental  disease  had  not  appear- 
ed in  the  respondent  during  the  time  covered 
by  its  witnesses.  For  this  very  fact  was,  of 
Itself,  a  circumstance  bearing  upon  the  prob- 
ability that  it  developed  at  all.  Nor  can  a 
rcsi)ondout,  by  limiting  his  own  evidence  to 
a  certain  period  of  time,  thereby  circum- 
scribe the  inquiry  or  affect  the  right  or  duty 
of  the  prosecution.  Moreover,  sound  public 
l)ollcy  and  a  proper  regard  for  the  rights  and 
interests  of  a  respondent  In  a  capital  case, 
whose  mental  responsibility  is  an  issue  at 
his  trial,  forbid  that  he  should  be  allowed 
to  concede  away  his  rights  by  admitting  that 
he  was  sane  at  any  previous  date  or  time. 
When  the  issue  Is  once  raised,  it  is  the  duty 
of  the  state  to  produce  sufficient  relevant 
evidence  to  establish  his  legal  responsibil- 
ity by  the  measure  of  proof  required  by  the 
law.  It  Is  as  much  the  duty  of  the  state  to 
protect  an  insane  man  from  conviction,  as  it 
is  to  prevent  a  sane  man  from  escaping  that 
result  We  cannot  say  from  the  record  that 
the  ruling  complained  of  resulted  in  a  wider 
range  of  inquiry  than  was  allowable.  Be- 
sides, the  respondent's  position  only  amounts 
to  this :  Improper  evidence  was  admitted  to 
establish  an  undisputed  fact — which  is  harm- 
less error.  McKIndly  v.  Drew,  71  Vt  138, 
41  Atl.  1039;  Coolidge  v.  Taylor,  85  Vt.  39, 
80  Atl.  1038;  First  Nat  Bank  v.  Bertoll,  88 
Vt  421,  92  Atl.  070;  State  v.  SaldeU,  70  N. 
H.  174,  46  Atl.  1083;  85  Am.  St  Rep.  627; 
Dietz  V.  Big  Muddy  C.  &  I.  Co.,  263  lU.  480, 
105  N.  E.  289;  Watters  v.  Brown,  177  Ala. 
78,  58  South.  291 ;  Standard  Life  &  Ac.  Ins. 
Co.  v.  Schmaltz,  66  Ark.  588,  53  S.  W.  49,  74 
Am.  St  Rep.  112. 


[(]  At  the  close  of  the  diarge,  the  respond- 
ent excepted  to  the  failure  of  the  court  to  in- 
struct the  jury  that: 

"The  burden  of  proof  as  to  sanity,  in  cases  ol 
murder  of  the  first  degree,  and  with  premedita- 
tion, enters  in  as  an  element  of  the  cnme." 

From  the  course  of  the  trial  as  shown  by 
the  record,  it  is  manifest  that  the  meaning 
of  this  somewhat  obscure  exception  was  that 
the  respondent  was  entitled  to  an  instruc- 
tion that  the  burden  was  on  the  state  to  es- 
tablish the  respondent's  sanity  as  an  intrin- 
sic element  of  the  crime,  and  to  establish  it 
beyond  a  reasonable  doubt  Tbia  is  unques- 
tionably the  law. 

[7]  Sanity  is  the  normal  condition  of  the 
human  mind.  Consequently,  the  law,  in  re- 
liance upon  this  self-proving  assertion,  pre- 
sumes at  the  outset  of  the  trial  that  the  re- 
spondent in  any  given  case  possesses  the  req- 
uisite degree  of  mental  capacity  to  mate 
him  criminally  responsible.  And  this  pre- 
sumption answers  the  administrative  re- 
quirements of  the  law  until  evidence  oomes 
into  the  case  from  some  source  tending  to 
show  otherwise.  But,  if  such  evidence  ap- 
pears, it  then  becomes  the  duty  of  the  prose- 
cution to  establish  the  respondent's  sanity 
as  an  essential  ingredient  of  the  crime,  and 
to  establish  it  beyond  a  reasonable  doubt. 
A  frequent  way  of  stating  this  rule,  and  one 
made  use  of  below  in  a  part  of  the  charge 
unexcepted  to,  is  this:  The  law  presumes 
the  respondent  to  be  sane  until  the  contrary 
is  shown  by  evidence;  and  this  presumption 
continues  until  overcome  by  evidence  to  the 
contrary.  Even  so  accurate  a  legal  writer  as 
Judge  Cooley  uses  language  much  like  this 
in  People  v.  Garbutt  17  Mich.  0,  97  Am.  Dec. 
162.  Nevertheless,  we  consider  this  form  of 
statement  unfortunate  and  calculated  to  mis- 
lead. The  expression  "overcome  by  evi- 
dence" naturally  indicates  that  the  respond- 
ent must  overcome  the  presumption,  must 
produce  evidence  to  outweigh  it  Such  is  not 
the  law.  It  is  not  the  law  of  Judge  Oooley's 
opinion.  It  is  not  the  law  of  the  charge 
below,  taken  as  a  whole.  Insanity  is  not 
an  affirmative  defense.  It  is  a  means  of 
meeting  the  case  made  by  the  prosecution 
and  weakening  one  of  its  essentials;  be- 
yond this  it  need  not  go.  "Sanity  is  an  in- 
gredient in  crime  as  essential  as  an  overt 
act,"  is  the  way  Chief  Justice  Breese  correct- 
ly puts  it  In  Chase  v.  People,  40  111.  352. 
It  is  necessarily  involved  in  every  criminal 
trial,  and  the  burden  of  proof  is  always  and 
at  all  times  on  the  state.  The  presumption 
of  sanity  answers  the  requirement  of  this 
burden  until  countervailing  evidence  chal- 
lenges it;  but  then,  upon  all  the  evidence 
in  the  case,  sanity  must  be  affirmatively 
established  beyond  a  reasonable  doubt  Oth- 
erwise, there  can  be  no  conviction.  The  duty 
of  going  forward  on  this  subject  is  on  the 
respondent,  but  nothing  more.  State  v.  Do- 
herty,  72  Vt  at  page  403,  48  Atl.  658,  S2 
Am.  St  Rep.  951;    2  Chamb.  Ev.  {974;     1 


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Vt) 


VERMONT  MARBtJB  00,  ▼.  EASTMAN 


151 


Whart  &  StllW,  Sfed.  Jur.  $  315;  Darls 
V.  United  States,  160  U.  S.  469,  16  Sup.  Ct. 
:io3,  40  L.  Ed.  499,  and  cases  cited.  The 
''harge  of  the  court  below  was  in  Iiarmony 
with  the  foregoing  views.  While  it  did  not 
follow  the  exact  language  of  the  respond- 
ent's request  on  that  point,  it  recognized  the 
nile  of  law  contended  for,  and  adequately 
{)laced  the  same  before  the  Jury,  Nothing 
more  was  required.  State  v,  Eaton,  63  Vt. 
574. 

[t]  The  court  gave  a  supplemental  instruc- 
tion on  this  subject  as  follows: 

"The  defense  of  insanity  is  made  by  the  re- 
fpondent  He  brings  it  here,  and  it  is  for  him, 
in  the  first  instance,  to  make  proof  on  that  is- 
sue. But  when  it  is  In  the  case,  *  •  •  and 
^ou  are  considering  the  right  and  wrong  of  that 
issue,  yon  must  find  the  guilt  of  the  respondent 
established  beyond  any  reasonable  donbt;  which 
means,  as  applied  to  insanity,  that  at  the  time 
of  the  killing  the  act  was  not  the  result  of  in- 
sanity," 

Complaint  is  now  made  of  the  expression 
"make  proof  on  that  issue,"  and  the  respond- 
pDt  treats  It  as  meaning  "make  proof  of  that 
issue."  It  is  apparent,  however,  that  it  was 
only  intended  to  mean  that  the  respondent 
was  required  to  produce  proof  or  evidence 
nn  that  isisue.  The  instruction  as  a  whole 
"breath.es  the  true  spirit  and  doctrine  of  the 
law,"  and,  especially  in  view  of  the  con- 
text, th  ere  Is  no  fair  ground  to  say  that  the 
juiy  WQ8  misled  by  it  Fassett  v.  Rosbury, 
53  Vt  552;  Ide  v,  Boston  &  Maine  Rail- 
road, 83  Vt  66,  74  Atl.  401. 

We  h.ave  no  occasion  to  give  further  oon- 
siderati  on  to  the  character  and  effect  of  the 
presumvtion  of  sanity  to  Inquire  whether 
it  Is  in  the  nature  of  evidence  or  a  mere  ad- 
mlnlstrstlve  expedient  that  becomes  functus 
officio  tta  soon  as  evidence  of  insanity  comes 
into  the  case ;  for.  though  the  charge  gave  it 
•'vldentlal  effect,  no  exception  was  taken, 
and  no  question  thereon  is  made  here. 

We  httve  patiently  examined  the  transcript 
and  hav-e  carefully  considered  the  arguments 
of  coun;sel  on  all  points  presented;  we  And 
no  erroi  and  are  satisfied  that  the  respond- 
ent had  a  fair  and  impartial  trial,  and  that 
the  result  was  fully  warranted  by  the  evi- 
dence. 

Judgment  that  there  is  no  error  in  the 
record  and  that  the  respondent  takes  noth- 
ing by  his  exceptions.  Ijet  sentence  pass  and 
execution  be  done. 


<M  vt.  42t) 

VERMONT  MARBLE  CO,  t,  EASTMAN  et  aL 

(Supreme  Court  of  Vermont    Rutland.    May  1, 
1917.) 

1.  Appeal  and  Ebbob  $=»265(1) — Questions 
RE.VIBWABUS— Rulings  on  Evidencis. 
The  findioga  of  the  chancellor  stand  like  the 
report  of  a  special  master  within  P.  S.  1208, 
providing  that  no  question  as  to  the  admission 
or  rejection  of  evidence  by  a  special  master 
^hnll  bo  heard  in  the  Supreme  Court,  unless  rais- 


ed by  exception  to  the  report  filed  !n  the  court 
of  chancery. 

[Ed,  Note,— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig,  {{  1638,  1538,  1543-1551.] 

2,  Appbai.  and  Ebbob  «=>265(1)— Exckptions 
— Sebticx  or  Advebse  Pabtt. 

Although  plaintiff  had  no  knowledge  of  ex- 
ceptions to  findings  of  fact  filed  by  defendant 
until  briefs  were  exchanged,  the  exceptions  will 
be  considered  where  it  does  not  appear  that  at 
the  time  of  filing  a  copy  was  not  left  with  the 
clerk  of  court,  in  view  of  rule  48,  requiring  the 
derk  to  notify  the  adverse  party  of  such  filing. 
[Ed,  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig,  If  1536,  1538,  1543-1561.] 

3,  Appeal  and  Errob  ^=522(1)  —  Record  — 
Matters  Included— Testimony. 

Where  the  transcript  of  the  testimony  was 
not  made  a  part  of  the  chancellor's  report^  that 
it  was  referred  to  by  defendants  in  their  ex- 
ceptions and  made  a  part  thereof  would  not 
bring  it  before  this  court 

[Ed.  Note, — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §§  2367,  2368,  2370,  2371,1 

4,  Appeal  and   Ebbob  €=31078(1)  —  Excep- 
tions—WAivEa, 

Exceptions  not  briefed  were  waived, 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  4266.] 

6.  Appeal  and  Ebbob  «=»694(1)— Fikdiros— 

Presumption. 
Where  exceptions  to  findings  of  fact  involve 
the  consideration   of   evidence   not  before  this 
court,  it  cannot  say  that  the  evidence  did  not 
support  the  findings. 

[Ed,  Note, — For  other  cases,  see  Appeal  and 
Error,  Cent  Mg,  {{  2910,  2915.] 

6,  Appeal  and  Ebbob  €=91071(1)— Finoinob 
—Harmless  Ebbob. 

Defendants'  exceptions  to  findings  will  not 
be  considered  where,  if  it  be  conceded  thot  the 
court  was  wrong,  the  defendants  were  not 
banned. 

[Ed.  Note, — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig,  {  4234,] 

7,  Boundabies  €=>6— Coubses, 

The  two  first  calls  in  a  deed  which  deter- 
mined the  others  were  as  fellows:  "(1)  C<Hn- 
mencing  at  a  point  on  the  first  stone  wall  west 
of  the  highway  leading  past  the  residence  of  the 
said  Mead  20  rods  south  of  said  Mead's  north 
line,  the  north  end  of  said  stone  wall  being  55Vi 
rods  westerly  from  said  highway,  and  said  point 
being  on  said  stone  wall  20  rods  from  sold 
Mead's  north  line ;  (2)  thence  southerly  on  said 
stone  wall  to  the  end  of  the  same,  and  thence 
southerly  on  the  fence  that  joins  on  the  same, 
in  all  20  rods  to  a  maple  tree."  The  highway 
leading  past  M.  ran  almost  due  north  and  south, 
and  the  north  line  of  his  land  ran  almost  due 
east  and  west  while  the  stone  wall  extended 
from  the  north  line  somewhat  southwesterly, 
Held,  that  the  first  call  was  to  be  determined 
by  measuring  sooth  at  right  angles  with  M.'s 
north  line  to  the  place  where  the  measurement 
of  20  rods  just  meets  the  stone  wall,  and  not 
by  measuring  that  distance  from  said  north  line 
along  die  stone  wall,  while  the  second  call  should 
be  measured  from  the  point  thus  determined 
southerly  along  the  stone  wall  to  the  end  there- 
of and  in  the  direction  thus  started  20  rods  from 
the  point  first  determined. 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent.  Dig,  i§  47-67,] 

8,  Boundabies  €=>6— Coubsks. 

where  a  boundary  line  is  described  as  run- 
ning toward  one  of  the  cardinal  points  of  the 
compass,  it  should  be  considered  as  running  di- 
rectly In  that  course,  unless  other  words  are 


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101  ATIiANTIC  REPORTER 


(Vt. 


used  for  the  purpose  of  qualifying  its  meaning 
or  its  direction  is  controlled  by  some  object, 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  §§  47-57.] 

9.  BOIDND ABIES     €=>.3(4) — COCBSES. 

In  description  "thence  southerly  on  said 
wall  ten  rods,"  the  words  "on  said  wall"'  show 
that  the  course  of  the  line  is  controlled  by  the 
course  of  the  wall. 

[Ed.  Note. — For  other  cases,  see  Boundaries, 
Cent.  Dig.  {{  14-18.] 

10.  BOTJNDARIEB  ®=>6 — COUBBES. 

The  distance  of  a  course  being  definitely 
stated  in  a  deed,  without  any  monument  as  its 
termination,  the  course  and  distance  must  gov- 
ern. 

[Ed.  Note. — For  other  cases,  see  Boundaries, 
C«it.  Dig.  §1  47-57.] 

11.  Deedb  €=395,  110— CoNarBUCTioN— QnEs- 
TioNs  OF  Law. 

t  Where  the  language  of  a  deed,  when  inter- 

preted in  connection  with,  and  in  reference  to, 
the  nature  and  condition  of  the  subject-matter 
at  the  time  it  was  executed,  and  the  obvious 
purpose  the  parties  had  in  view,  is  clear  and  un- 
ambiguous, its  meaning  is  a  question  of  law  for 
the  court,  and  the  intent  cannot  be  altered  by 
evidence,  or  findings,  of  extraneous  circum- 
stances. 

[Eld.  Note. — For  other  cases,  see  Deeds,  Cent. 
Dig.  IS  238,  241-255,  293.] 

12.  Deeds   €=»99—CoN8TBncrioN— Evidence. 
Deeds,  surveys,  and  plans  not  referred  to  in 

the  deed  in  question  can  neither  restrict  nor 
extend  the  import  of  the  terms  used. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent. 
Dig.  a  261-265.] 

13.  Deeds    €=»101  —  Pleadino    «=536(1)  — 
Facts    Admitted  —  Pbactical   Constbuc- 

TION. 
Where  the  effect  of  the  pleadings  is  to  ad- 
mit defendants'  ownership  of  a  narrow  strip  of 
land  along  the  boundary  m  dispute,  and  sucn  is 
also  the  [H'actical  construction  which  has  al- 
ways been  given  to  the  deeds  through  which  de- 
fendants trace  title,  such  strip  will  be  considered 
as  a  part  of  defendants'  grant 

[Ed.  Note. — ^For  other  cases,  see  Deeds,  Cent 
Dig.  {  233;   Pleading,  Cent  Dig.  i§  81,  84,  86.] 

14.  bountdabies    «=>40(1)  —  constbuotion — 
Question  of  Fact. 

The  location  of  the  division  line  on  the  land 
described  in  the  deeds  was  a  question  of  fact  to 
■     be  determined  on  the  evidence. 

[Ed.  Note. — For  other  cases,  see  Boundaries, 
Cent  Dig.  {{  196-203.] 

15.  Equitt  $=3389— Findings— Conclusions 
OF  Law— "Decision." 

Chancellor's  finding  that  "the  decision  is  that 
the  line  between  the  properties  involved  in  this 
case  is  the  so-called  pin  line"  is  not  a  conclu- 
sion of  law;  as  a  "decision"  of  the  court  is  its 
finding  upon  either  a  question  of  law  or  fact 
arising  in  a  case. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent 
Dig.  i  830. 

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

16.  BouNDABiKS    «s»3(3)—DiBCBEPANCT— La- 
tent Ambiguity. 

That  the  length  of  the  coarse  required  by 
the  second  call  in  the  deed,  the  southerly  ter- 
minus of  which  is  given  as  the  maple  tree,  was 
about  1.8  rods  shorter  than  the  distance  given 
in  the  deed,  Aeld  not  to  constitute  a  latent  am- 
biguity. 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  fS  6-19.] 


17.  BouxDABiEs  $=»3(1) — CouBSES- Abuttals 
AND  Monuments. 

As  between  courses  and  distances,  on  one 
hand,  and  abuttals  and  monuments,  on  the  other, 
the  latter,  when  identified,  must  control;  the 
reason  being  that  mistakes  in  the  former  are 
more  probable. 

[Ed.  Note. — For  other  cases,  see  Boundaries, 
Cent  Jyig.  Si  3,  5.] 

18.  Boundaries  «=>6  —  Coubsks  —  Place  or 
Beginning. 

The  place  of  beginning  being  well  known  and 
ascertained,  it  must  govern,  and  the  grant  must 
be  confined  within  the  boundaries  given  in  the 
deed. 

[Eld.  Note.— EV>r  other  cases,  see  Boundaries, 
Cent  Dig.  SS  47-57.] 

19.  Boundabies  €=96— Unckbtaintt  in  De- 
scription—Calls. 

There  being  no  uncertainty  in  the  descrip- 
tion, to  locate  the  lines,  the  regular  order  of  the 
calls  should  be  observed  and  followed,  and  a 
posterior  line  cannot  be  controlled  by  a  reverse 
survey. 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  S§  47-67.] 

20.  Evidence  €=3390(3)— Bxtbinsio  Btidencb 
TO  Vary  Deed. 

Extrinsic  evidence  held  not  admissible  to 
show  that,  by  mistake,  one  tract  of  land  instead 
of  another  was  inserted  in  either  of  two  deeds, 
thereby  establishing  a  different  contract 

[Ed.    Note. — For   other    cases,   see    Evidence, 
Cent  Dig.  SS  1723,  1724.] 

21.  Frauds,  Statute  of  «=>100  —  Memoran- 
dum—Sufficiency. 

Signed  statements  referrinj;  to  land  wer« 
insufiicient  to  answer  the  requirements  of  the 
statute  of  frauds  where  they  did  not  contain  sub- 
stantia) terms  of  a  contract  for  sale  expressed 
with  such  certainty  that  they  could  be  under- 
stood from  the  statements  alone  or  from  some 
other  writing  to  which  they  referred. 

[Eld.  Note. — For  other  cases,  see  £>auds,  Stat- 
nfe  of.  Cent  Dig.  {  189.] 

22.  BouNDAinxs    «=948(6)  —  Acquiescence — 
Advbbse  Possession- Essentials. 

Recognition  of  and  acquiescence  in  a  bound- 
ary line  is  of  no  force  unless  followed  b^  such 
possession  of  the  land  beyond  the  true  divisional 
line  for  the  period  of  16  years  as  shall  give  a 
perfect  title  by  adverse  possession. 

lEd.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  S  240.] 

23.  Advkbsk  Possession  $=»13  —  Oocufanct 
Without  Claim  of  Right. 

That  a  strip  of  land  was  used  for  dumping 
refuse  from  a  quarry,  that  marble  blocks  were 
placed  thereon,  or  that  guys  and  ropes  or  cables 
were  maintained  upon  the  same  would  not  give 
title  by  adverse  possession  where  such  occupan- 
cy was  not  under  a  claim  of  right. 

[Ed.  Note. — For  other  cases,  see  Adverse  Pos- 
session, Cent  Dig.  SS  65,  67-76.] 

24.  Adverse  Possession  €=943(4)  —  Tacking 
Possession— Ev  i  dbnce. 

Where  each  prior  grantee  did  not  transfer 
to  his  successor  his  possession  of  the  land  with- 
out the  calls  of  his  title  deeds,  and  the  laud  ad- 
versely held  has  never  been  covered  by  the  de- 
scription in  any  of  the  deeds  within  defendant's 
claim  of  title,  there  can  be  no  tacking  so  as  to 
make  continuity  of  possession ;  as  no  privity  of 
estate  or  of  possesion  between  the  successive 
decisions  is  shown. 

[Ed.  Note.— For  other  cases,  see  Adverse  Pos- 
session, Cent  Dig.  {  218.] 


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25.  AoTxssK  Possession   «=>40  —  Tnix  Rb- 

QUIBBD. 

Where  defendants  had  not  occupied   that 

{Wrt  ot  the  boundary  in  dispute  for  15  years, 
they  could  not  of  themselves  have  acquired  any 
adverse  rights. 

[Ed.  Note.— For  other  cases,  see  Adverse  Pos- 
tesBioo,  Cent.  Dig.  {g  148-183.] 

On  Motion  for  Beargument; 

26.  VBRDOB  and  PURCHASEB  4=361— DxscBiP- 

noH  OF  Pbeuibes— "Adjacknt  to." 
Redtal  in  a  bond  for  a  deed  that  "said  Mead 
luTing  this  day  executed  a  bond  to  them  there- 
by agreeing  to  convey  •  •  •  the  piece  of 
land  north  of  and  adjacent  td  said  premises" 
luld  00  part  of  the  description  previously  made 
in  the  hoai ;  the  words  "adjacent  to"  not  neces- 
sarily implying  "adjoining"  or  "contiguous." 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Parchaser,  Cent.  Dig.  {|  97,  98. 

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

27.  Dexdb  ^=394— Bond  fob  Dekd— Mebqkb. 
Where  the  bonds  were  executory  contracts 

for  deeds,  and  were  executed  and  consummated 
by  the  deeds  subsequently  given,  they  were  con- 
clusively merged  in  the  deeds,  and,  not  being 
incorporated  by  reference,  could  not  be  looked  to 
in  determining  the  rights  of  the   parties. 

[Ed.  Note— For  other  cases,  see  Deeds,  Cent 
«B.  I  286.] 

28.  BviDENCE  «s>414  —  Parol  Etidenoe  — 
Time  of  Oivine  Bond. 

Parol  evidence  was  admissible  to  show  the 
true  time  of  the  giving  of  eadi  bond. 

[Ed.   Note.— For   other   cases,    see   Evidence, 
Cent  Dig.  i  185^:] 

20.  Appbai,  and  Ekbob  <9=»931(1)  —  Finding 
OF  Chancellob— Review— Presumption. 
This  court  will  not  assume,  for  the  purpose 
of  finding  error,  that  the  evidence  did  not  sup- 
port the  chancellor's  finding, 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Mg.  g  3762.] 

30.  Appeal  and  Ebrob  «:3934(1)— Review- 
Intendment. 
Every  reasonable  intendment  should  be  made 

m  favor  of  the  decree  under  review. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 

Error,  Cent  Dig.  gg  3777,  3780-3782.] 

8L  BocNDABiEs  «=»24— Bond  fob  Deed— Re- 

COBDIWO — PBIOBITT. 

That  one  of  two  bonds  for  a  deed  was  re- 
corded before  the  other  gives  it  no  priority  as 
a  contract  for  title  in  determining  boundaries. 

[Gd.  Note. — For  other  cases,  see  Boundarlea, 
Cent  Dig.  g  136.] 

32.  Boundaries    «s63  —  DEXBRiaNATiON  — 

SUBVET  AND   PLAN. 

A  Rurvey  and  plan  not  being  participated  in, 
authorized,  or  ratified  by  all  the  parties  to  ei- 
ther contract  to  convey,  and  not  being  referred 
to  therein  nor  in  either  deed,  cannot  be  consid- 
ered in  the  construction  of  the  bonds  for  the 
deeds  or  the  deeds. 

[Ed.  Note.— For  other  cases,  see  Boundaries. 
Cent  Dig.  gg  264-267.] 

33.  Boundaries  €=»46(2)— Disputed  Bo0Hd« 

ABT— AOBEEaiENT  BT  CO-OWNEB. 

An  agreement  by  one  of  several  co-owners 
establishing  a  doubtful  or  disputed  boundary 
is  not  binding  on  the  others  unless  they  consent 
thereto. 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent.  Dig.  gg  219,  220.] 


34.  Tenancy  in  Comuon  «sal6(7,  8)— Ad- 
verse Possession- Exclusive  Ownership. 

To  render  the  possession  of  a  cotenant  ad- 
verse,  it  must  affirmatively  appear  that  the  oth- 
ers had  knowledge  of  his  claim  of  exclusive  own- 
ership which  was  accompanied  by  such  acts  of 
possession  as  would  amount  to  an  ouster  as  be- 
tween landlord  and  tenant 

[Ed.  Note. — For  t>ther  cases,  see  Tenancy  in 
Common,  Cent  Dig.  g  49.] 

35.  Advebse  Possession  «=3>85(4)— Claiic  of 
RioHT— Evidence. 

That  defendant  who  owned  land  adjcHuing 
plaintiffs,  purchased  from  plaintiff  for  a  valua- 
ble consideration  an  interest  in  a  part  of  the 
land  within  plaintifTs  title  deed,  was  evidence 
tending  to  show  that  defendant's  previous  use 
by  way  of  anchoring  guys  on  the  land  was  not 
adverse  or  under  a  daim  of  right 

[EA.  Note. — For  other  cases,  see  Adverse  Pos- 
session, Cent  Dig.  gg  313,  503,  688.] 

36.  Easements   «=»36(1)— Acquisition— Bub- 
den  of  Proof. 

The  burden  of  establishing  the  prescriptive 
right  of  easement  was  with  the  defendants  who 
claimed  title. 

[Ed.  Note. — For  other  cases,  see  Easements, 
Cent  Dig.  gg  77,  78,  88,  89.] 

Appeal  In  Chancery,  Rutland  County; 
Frank  U  Fish,  Chancellor. 

Bill  by  the  Vermont  Marble  Company 
agHlnst  G«orge  P.  Eastman  and  another. 
From  a  decree  for  orator,  defiendants  appeal. 
Decree  affirmed,  and  cause  remanded. 

This  case  was  beard  before,  and  facts 
found  by  the  chancellor.  Among  other  things 
reported  and  noticed  In  the  opinion,  the  chan- 
cellor states  the  following  facts: 

The  defendants  did  not  at  first  claim  to 
own  as  far  north  as  they  now  claim.  At  the 
beginning  of  the  trial  and  before  finding  some 
old  plans  (known  as  the  Brown,  the  Green, 
and  the  Murphy  plans)  and  surveys  of  the 
properties  between  which  the  dividing  line  is 
In  dispute,  they  claimed  to  a  line  20  rods 
(measured  along  the  line  of  a  fence  and  wall 
on  the  easterly  side  of  the  premises)  north  of 
the  maple  tree  at  the  southeast  corner  of  the 
defendants'  land,  which  is  nearly  2  rods 
south  ot  the  line  now  claimed.  The  plalntlflT 
claimed  to  own  to  a  line  20  rods  southerly 
at  right  angles  with  Mead's  north  line  and 
parallel  therewith;  and.  If  it  failed  in  es- 
tablishing this  line,  it  claimed  to  the  so-call- 
ed "pin  line"  which  Is  a  few  feet  further 
north  and  is  obtained  by  measuring  10  rods 
souQi  from  Mead's  north  line  and  then  10 
rods  along  the  east  wall.  Each  side  intro- 
duced evidence  tending  to  establish  its  daim 
as  then  made,  and  the  hearing  was  about  to 
close  when  the  defendants,  having  discovered 
the  old  plans  and  surveys  mentioned  above, 
asked  and  were  granted  leave  to  file  a  cross- 
biU.  Tliereupon  they  filed  an  amended 
answer  and  cross-bill  in  which  they  claimed 
the  true  line  to  be  a  line  parallel  with  Mead's 
north  line  and  20  rods  north  of  the  maple 
tree,  at  right  angles  to  said  north  line.  The 
line  so  claimed  is  33.6  feet  further  north, 
measured  along  the  easterly  wall,  than  the 


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line  to  -whlcb  defendants  before  claimed,  3 
rods  7%  feet  north  of  a  line  20  rods  soutb 
of  Mead's  north  line,  and  only  16  rods  and  9 
feet  south  of  this  north  line.  The  area  of 
defendant's  quarry  lot  south  of  a  line  meas- 
ured at  right  angles  20  rods  south  of  Mead's 
north  line  Is  7.184  acres ;  .south  of  the  "pin 
line"  It  Is  7.436  acres;  and  south  of  the  line 
now  clnimed  by  them  It  Is  8.69  acres. 

The  chancellor  states  that  the  old  surveys 
and  plans  which  caused  the  defendants  to 
claim  the  line  to  be  20  rods  north  of  the 
maple  tree,  measuring  at  rtght  angles  to 
Mead's  north  line,  and  the  evidence  taken  In 
connection  therewith,  induce  findings  as  fol- 
lows: 

"In  the  fan  of  1866,  negotiations  having  been 
entered  Into  between  Andrew  J.  Mead  and  pros- 
pective purchasers  of  the  quarry  property,  at 
the  request  of  said  Mead  and  Alanda  W.  Clark, 
one  of  the  prospective  purchasers,  James  Brown, 
of  Rutland,  a  surveyor,  on  September  26tb  went 
to  West  Rutland  for  the  purpose  of- laying  out 
the  boundary  lines  of  the  marble  property  un- 
der consideration. 

"Accompanied  and  directed  by  said  Alanda 
W.  Clark  and  Mr.  Mead  and  his  son,  Eugene, 
Mr.  Brown  ran  a  line  at  right  angles  to  the 
north  line  of  the  Mead  farm,  northerly  from  the 
point  where  two  fences  comer  at  the  north  side 
of  a  large  maple  tree.  On  this  line  be  measured 
off  20  rods  and  then  set  a  stoke.  Through  this 
stake  he  ran  a  line  parallel  to  the  Mead-Slanch- 
ard  line  easterly  to  a  stone  wall,  where  he  set 
a  stake,  and  westerly  to  an  old  rail  fence  run- 
ning northerly  and  southerly,  and  there  set  a 
stake.  From  the  stake  first  set  he  continued 
the  right  angle  line  northerly  10  rods,  and  there 
set  a  stake,  and  from  that  stake  ran  easterly 
parallel  with  the  Mead-Blanchard  line  to  the 
said  stone  wall.  From  the  maple  tree  he  ran 
westerly  along  the  line  of  a  board  fence  66  rods 
to  the  north  bar  post  of  a  barway  then  stand- 
ing, and  there  set  a  stake,  and  then  turned  a 
right  angle  to  the  north  and  ran  a  line  to  meet 
the  line  parallel  with  the  Mead-BIanchard  line. 

"On  the  same  occasion  a  small  piece  of  land 
was  surveyed  lying  east  of  the  parcel  above  re- 
ferred to,  its  westerly  boundary  being  a  part 
of  the  easterly  boundary  of  the  large  parcel,  and 
the  northwest  comer  being  a  point  on  the  wall 
18  feet  southerly  from  the  butternut  tree.   •   ♦   • 

"No  other  parcels  of  laud  were  surveyed  by  Mr. 
Brown.    »    •    • 

"On  September  27,  1866,  the  day  following 
Brown's  survey,  n  rough  sketch  or  plan  of  the 
premises  was  prepared,  and  Mr.  Mead  made 
and  retained  a  copy  thereof  for  himself,  showing 
in  detail  the  boundaries,  corners,  monuments, 
and  distances,  and  containing  complete  direc- 
tions for  drawing  the  conveyance  as  shown  there- 
on.   ••    • 

"By  this  survey  and  Mead's  plan  the  bound- 
ary lines  of  the  property  bonded  to  Oliver  and 
associates  were  indicated  as  follows:  The  east 
side  of  the  property  was  bounded  by  a  stone 
wall  running  in  a  northerly  and  southerly  di- 
rection from  a  point  near  the  maple  tree  re- 
ferred to,  to  the  north  farm  line  between  the 
Head  and  Blnnchanl  lots.  From  the  southerly 
end  of  the  wall  there  was  a  rail  fence  extend- 
ing to  the  maple  tree,  and  from  the  maple  tree 
westerly  in  the  south  line  of  the  premises  sur- 
veyed was  a  board  fence.  About  midway  be- 
tween the  maple  tree  and  the  north  farm  line 
there  was  a  small  butternut  tree  standing  on 
the  east  side  of  the  stone  wall.  The  norther '^i 
comer  of  the  parcel  surveyed  and  measured  by 
Brown  was  27  feet  3  inches  north  of  the  butter- 
nut tree  and  143  feet  2  inches  east  of  the  20- 
rod  point.  The  northerly  line  [of  the  property] 
was  a  line  beginning  at  the  stone  wall  on  the 


east  at  the  point  27  feet  3  Inches  north  of  the 
butternut  tree,  extending  westerly  through  the 
20-rod  point  and  parallel  with  the  Mefld-Blanch- 
ard  division  line  until  it  intersected  a  rail  fence,, 
which  was  the  westerly  [of  the  property],  at 
which  place  there  was  a  stake  and  stones. 

Following  the  giving  of  the  bond  to  Oliver 
and  others,  the  corporation  known  here  as 
the  American  Marble  Company  was  organ- 
ized and  began  to  operate  the  property  In 
the  way  of  opening  and  developing  a  marble 
quarty  thereon  and  excavating  the  loose 
earth.  In  excavating  and  opening  the  quarry 
the  loose  dirt  from  the  top  and  part  of  the- 
stone  taken  out  by  blasting  was  dumped  on 
the  easterly  side  of  the  ledge  north  of  the 
northeast  corner  of  the  quarry  opening. 
This  company  continued  Its  operations  down 
to  the  early  part  of  the  year  of  1871,  when  It 
became  Insolvent,  and  Its  property  was  as- 
signed by  the  court  of  insolvency  to  Charles 
Woodhouse  as  assignee  on  the  7th  day  of 
April  of  that  year.  On  the  2lBt  day  of  July 
following  Woodhouse,  as  assignee,  conveyed 
the  property,  subject  to  all  Incumbrances,  to 
A.  N.  Russell  and  others,  who  on  the  23d  of 
August,  same  year,  conveyed  the  same  to 
the  New  American  Marble  Company.  At  the 
March  term,  1871,  of  the  court  of  chancery 
Mead  brought  proceedings  to  foreclose  a  mort- 
gage of  January  4,  1860,  given  by  the  Ameri- 
can Marble  Company  on  the  property,  and  a 
decree  was  entered  in  his  favor,  which  de- 
cree became  absolute  April  27,  1872.  On  the 
1st  day  of  July,  1873,  Mead  conveyed  a  one- 
eighth  Interest  in  the  premises  to  Stlllman  C. 
White,  and  seven-sixteenths  Interest  to  Isaac 
M.  Hillman,  and  seven-sixteenths  Interest 
to  Lyman  A.  Bardln.  At  the  March  term, 
1875,  of  the  court  of  chancery  Bardln  and 
Hillman,  assignees  of  another  mortgage  on 
the  property  given  by  the  American  Marble 
Company,  foreclosed  the  same  against  the 
New  American  Marble  Company  and  Stlll- 
man C.  White;  the  decree  becoming  absolute 
March  27,  187C.  In  1875  Bardln  and  HIU- 
man  mortgaged  their  seven-eighths  interest 
in  the  property  to  one  Thrall,  who,  at  the 
March  term,  1878,  of  said  court,  obtained  a 
decree  of  foreclosure  which  became  absolute 
April  12,  1879.  On  the  16th  day  of  the  same 
month  Thrall  conveyed  said  seven-eighths  In- 
terest to  said  Bardln. 

At  the  time  the  property  was  being  operat- 
ed by  the  American  Marble  Company  there 
was  a  wooden  post  set  at  the  point  located 
by  Brown  as  the  northeast  comer  of  the 
property,  whldb  post  was  on  the  west  side  of 
the  stone  wall  before  mentioned  and  27  feet 
3  Inches  north  of  the  butternut  tree.  Wester- 
ly of  this  post  and  between  the  post  and  the 
ledge  was  a  large  square  cut  marble  block 
in  the  center  of  which  was  Ein  iron  pin,  bent 
to  hold  a  guy  from  the  derrick,  and  westerly 
over  the  ledge  there  was  a  row  of  large  iron 
pins  of  various  heights  about  1^  Inches  In 
diameter  and  from  1  foot  to  2^^  feet  above 
the  ledge,  and  west  of  the  ledge  was  aa  ap- 
ple tree  standing  In  the  line.    These  objects 


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were  practically  in  the  Hue,  and,  except  tbe 
apple  tree,  were  apparently  Intended  to  mark 
a  boDndary. 

I>urlng  the  time  that  company  was  operat- 
ing the  property  a  boarding  house  had  been 
erected  a  considerable  distance  west  of  the 
quarry  opening  and  about  halfway  between 
tie  ledge  and  the  west  fence  line  of  the  prop- 
erty. This  hoarding  house  was  occupied  dur- 
ing this  period  by  a  man  named  Burr,  an  em- 
ploy§  of  the  company,  and  with  whom  some 
of  the  other  employes  boarded.  While  these 
premises  were  occupied  by  Burr,  a  portion 
of  the  land  west  of  the  ledge  was  inclosed  as 
a  garden  in  connection  with  the  boarding 
house;  the  northerly  fence  of  such  garden 
beginning  at  a  point  on  th0  west  line  .fence 
and  mnnlng  easterly  to  the  ledge.  The  east- 
erly end  of  this  fence  was  connected  with 
the  east  end  of  the  fence  below  referred  to 
on  the  Brown  and  Green  line,  and  also  to  the 
south  line  fence  of  the  property,  by  a  fence 
mnning  northerly  and  southerly  across  the 
property.  The  indosure  in  which  stood  the 
boarding  house  wag  used  and  occupied  by 
Burr  as  a  garden,  and  the  small  inclosure 
north  of  the  garden  fence  was  used  as  a 
night  pasture  for  Burr's  cattle  The  garden 
fence  or  board  fence  was  about  80  or  40  feet 
north  of  the  boarding  house,  and  the  rail 
fence  on  the  north  line  was  some  50  or  60 
feet  further  north.  At  the  time  of  Green's 
surrey  mentioned  below  be  found  these  fenc- 
es as  above  set  forth. 

After  the  said  Bardin  obtained  an  interest 
in  the  property  under  this  deed  from  Mead 
on  July  1,  1873,  he  and  Mead  caused  the 
premises  to  be  resnrveyed  by  G.  B.  Green,  a 
eivll  engineer,  in  the  latter  part  of  July, 
same  year.  Green  surveyed  the  entire  prem- 
ises. Including  the  small  lot  lying  to  the 
east,  and  which  had  l)een  sold  by  Mead  for  a 
dumping  ground  for  the  refuse  from  the  mill. 
Prior  to  the  time  of  this  survey  the  wooden 
post  at  the  northeast  comer  of  the  premises 
had  disappeared,  and  a  marble  post  had  been 
set  on  tbe  opposite  side  of  the  wall,  which 
post  Green  found  to  be  27  feet  7  inches  north 
of  the  butternut  tree  and  146  feet  east  of  the 
^rod  point,  or,  as  designated  on  Mead's 
plan,  "point  No.  1." 

Green  ran  the  northerly  line  of  the  prop- 
erty beginning  at  the  marble  post  designated 
on  Mead's  plan  as  "corner  A"  westerly 
through  "point  No.  1,"  or  the  20-rod  point, 
found  the  iron  pin  In  the  large  aquare-cnt 
block  to  be  in  line,  and  In  running  over  the 
ledge  foond  five  large  Iron  pins  in  a  row, 
two  of  which  were  exactly  on  the  line,  and 
in  running  westerly  over  the  ledge  along  the 
fence  before  referred  to  found  that  the  line 
passed  over  a  point  projecting  from  a  peculi- 
ar large  flat  rock,  and  continuing  the  line 
westerly  to  the  west  line  fence,  where  he 
found  a  stake  in  stones  in  the  center  line  of 
the  old  rail  fence  which  was  the  westerly 
boundary  of  said  premises.  A  short  dis- 
tance westerly  of  the  large  flat  rock,  and 


some  10  or  12  feet  north  of  the  line,  he  found 
a  marble  post  whidti  Mead  said  was  set  to 
mai^  the  original  southwest  comer  of  the 
Cflark  lot  or  "second  lot  B."  At  this  time 
there  was  a  marble  post  on  the  east  side  of 
the  stone  wall  before  referred  to  and  39 
feet  south  of  tbe  apple  tree.  This  post  was 
at  the  end  of  a  line  drawn  parallel  with  tbe 
Mead-Blanchard  divisional  line,  and  inter- 
sected the  continuation  of  the  right  angle  line 
before  referred  to  running  northerly  from 
the  maple  tree  at  a  point  10  rods  north  of 
the  Brown  and  Green  line.  The  post  at  the 
time  of  the  hearing  had  apparently  bew. 
buried  many  years.  There  was  no  evidence 
that  it  was  ever  above  the  ground,  and,  if  It 
was,  it  was  buried  before  1890. 

Green  discovered  and  called  to  the  attri- 
tion of  Woodhouse,  Clark,  and  Mead  the 
fact  that  the  calls  In  the  deed  concerning  the 
boundary  did  not  correspond  with  the  monu- 
ments and  objects  on  the  land,  and  that  the 
marble  post  marking  the  northwest  comer  of 
the  96-rod  piece  was  8  feet  farther  south  of 
the  butternut  tree  than  Brown  had  found 
and  Mead's  plan  shows.  Green  located 
points  on  the  Clark  lot  where  derrick  guys 
were  fastened,  and,  having  completed  his 
survey,  made  a  scale  drawing  of  the  same, 
showing  in  detail  the  monuments,  courses, 
distances,  buildings,  fences,  outline  of  the 
quarry  opening,  outline  of  the  quarry  dump, 
and  the  guy  hitches  located  on  that  lot,  and 
also  made  complete  notes  of  the  plan  with 
regard  to  the  various  points  and  matters 
relating  thereto.  After  the  plan  had  been 
completed  and  the  parties  had  verified  the 
work,  the  following  statement  was  placed  on 
the  plan: 

"July  29, 1873.  Boundaries,  corners,  measure- 
ments and  notes  made  hereon  are  agreed  to  and 
witnessed  as  correct." 

This  statement  was  signed  by  A.  J.  Mead, 
who  at  that  time  owned  a  one-tenth  interest 
in  the  Clark  lot,  by  one  Marcellus  Newtcm, 
who  was  familiar  with  the  property,  by 
Charles  Woodhouse,  who  was  secretary  of 
tlie  American  Marble  Company,  and  at  that 
time  one  of  the  owners  of  the  small  parcel 
or  dumping  ground,  and  was  also  signed  by 
J.  E.  Manley,  who  was  Mead's  attorney. 

A  statement  was  made  and  signed  by  H. 
G.  Clark  (who  at  the  time  owned  a  three- 
tenths  interest  in  the  Clark  lot,  or  "second  lot 
B,"  and  was  also  one  of  the  owners  of  the 
small  parcel  or  dumping  ground)  as  follows: 

"July  28,  1873. 

"This  is  to  say  whereas  myself  and  others  pur- 
chased options  on  two  adjoining  pieces  of  prop- 
erty, one  on  September  29,  1866,  and  one  on 
October  2,  1866,  both  being  owned  by  one  A,  J. 
Mead  and  which  were  both  later  on  deeded  on 
January  1,  1868;  and  whereas,  in  both  deeds  it 
hag  since  been  found  out  that  the  way  in  which 
the  said  parcels  were  described  in  tbe  records  is 
not  equivalent  to  the  parcels  as  originally  laid 
out  and  marked  by  one  Jas.  Brown  and  agreed 
to  by  the  said  Mead  and  ourselves:  Now,  there- 
fore, for  $1.00  lawful  money  to  me  in  hand  paid, 
I  hereby  agree  that  tbe  said  propertip«  shall  be 
and  remain  as  originally  laid  out  by  said  Brown, 


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and  that  the  survey  by  one  G.  E.  Green  signed 
by  A.  J.  Mead  and  M.  Newton  on  July  29,  1873, 
and  now  in  possession  of  one  J.  E.  Manley,  is 
accordingly  correct  and  satisfactory  to  us.  To- 
gether with  the  agreements  cited  thereon  espe- 
cially as  to  our  acknowledging  the  sale  of  the 
right  to  attach  three  guys  at  or  about  the  points 
on  our  ten-rod  lot  as  now  in  use. 

"[Signed]    H.  G.  Clark. 
"Witness: 

"Charles  Woodhouse." 

In  making  the  foregoing  sarvey  and  plan. 
Green  was  employed  by  both  Mead  and  Bar- 
din,  and  each  paid  one-half  of  his  charges 
therefor. 

The  line  from  comer  "A"  through  "^Int 
No.  1"  and  the  pin  in  the  marble  block  ex- 
tended westward  passes  over  a  large  flat 
rock  with  a  peculiar  Jagged  point  extending 
upward  In  the  line.  At  the  westerly  extrem- 
ity of  this  line  In  the  bottom  of  the  old  rail 
fence  now  remaining  there  was  found  evi- 
dence of  a  stake  with  stones  around  it.  The 
position  of  this  line  Is  shown  on  plaintiff's 
plan  exhibit  IIS  as  the  line  marked  "C,"  and 
is  further  shown  on  defendants'  plan,  Exhib- 
it 38. 

The  distance  from  the  Mead-Blanchard  di- 
visional line  to  the  maple  tree,  measuring  at 
right  angles  to  said  line.  Is  36  rods  6%  feet, 
and,  measuring  along  the  wall,  is  substantial- 
ly 39  rods.  The  marble  monument  standing 
east  of  the  wall  27  feet  7  inches  northeasterly 
of  the  butternut  tree,  the  wooden  post  stand- 
ing west  of  the  wall  27  feet  3  inches  north- 
east of  the  butternut  tree,  the  marble  post  on 
the  flat  standing  at  point  No.  1  on  the  Brown, 
Mead,  Green,  and  Murphy  plans,  the  large 
square  marble  block  with  the  Iron  pin  leaded 
Into  it,,  the  row  of  flve  large  iron  pins,  the 
fence  running  westerly  from  the  blazed  ap- 
ple ti'ee,  and  the  stoke  and  stones  in  the  west 
line,  were  for  the  purpose  of  marking  the 
northerly  boundary  of  the  American  Marble 
Company  property. 

Ab  some  time  after  Eastman  began  opera- 
tions the  old  derrick  was  replaced  by  a  new 
one,  the  latter  being  guyed  at  substantially 
the  same  locations  as  the  former,  excepting 
that  there  were  not  so  many  guys  on  the  new 
mast  as  there  had  been  on  the  old.  The  guy 
which  had  formerly  been  fastened  to  the 
marble  block  with  the  line  pin  was  moved 
slightly  to  the  rear  of  the  block,  and  the  guy 
theretofore  fastened  to  the  walnut  tree  was 
moved  a  little  to  the  west  and  fastened  to  an 
anchor  set  in  the  ground  as  the  tree  was 
considered  unsafe  fx>r  that  purposei  The 
defendants  are  maintaining  upon  the  prem- 
ises which  the  plaintiff  claims  to  own  three 
guy  attachments.  These  are  north  of  the  so- 
called  "pin  line." 

Lyman  A.  Bardln  died  In  June.  1887,  and 
the  property,  including  the  dumping  ground 
lot  on  the  east  passed  under  his  will  to  bis 
widow,  Phoebe  J.  Hardin. 

In  1884-85  Lyman  A.  Hardin  wrote  letters 
to  his  son,  who  was  then  operating  the  quar- 
ry at  West  Rutland.  These  letters  were  in- 
eroduced  in  evidence,  and  (in  part)  are  quoted 


In  the  findings  of  firt.  Therein  Bardln 
said,  among  other  things: 

"We  call  for  a  right  of  way  to  pass  and  repass 
and  also  twenty  rods  in  front  of  our  milL 
•  •  *  We  want  our  number  ot  rods  in  front 
as  specified  upon  the  records,  and  also  our  right 
of  way.  I  will  send  yoti  a  copy  of  the  mortgage 
decree  which  is  the  same  word  for  word  aa 
Mead's  deed  to  the  American  Marble  Company 
reads,  and  I  want  you  to  keep  the  copy,  as  it 
contains  the  survey  of  our  property." 

"We  want  our  lines  established  as  our  deeds 
and  titles  specify.  •  ♦  •  We  want  our  twen- 
ty rods  as  our  title  specified.    •    •    • 

"In  surveying  the  premises  I  should  make  right 
angles  to  all  the  corners  on  the  west  side  of  our 
lot  made  parallel  with  Mead's  north  line  after  I 
had  taken  our  twenty  rods  from  the  twenty-rod 
point  south  of  Mead's  north  line.  I  should  then 
run  down  and  see  where  it  would  locate  the  cor- 
ner by  the  maple  tree;  and  I  would  commence 
and  run  the  line  from  the  twenty-rod  point  on 
the  east  side  and  see  if  they  two  would  agree. 
What  we  want  is  our  tvrenty  rods  and  the  right 
of  way." 

"Now  as  to  the  survey  of  our  quarry  I  think 
the  way  you  propose  is  the  correct  way,  i.  e.,  run 
out  the  hne  from  ttarting  point  [underscored  by 
Hardin]  and  plant  your  comers  as  the  title 
reads,  and  if  Mr.  Mead  is  not  satisfied,  let  him 
move  them  by  law.    ♦    •    *  " 

Neither  of  the  defendants  ever  occupied 
or  possessed  land  north  of  a  line  parallel 
with,  and  20  rods  south  of,  Mead's  north 
line,  before  the  deed  from  Howe  to  Eastman, 
May  29,  1903.  It  is  further  found  that  none 
of  the  following  persons:  John  W.  Howe  in- 
diridnally  or  as  trustee,  the  Rutland  White 
&  Blue  Marble  Company,  the  Rutland  White 
Marble  Company,  A.  L.  Burbank  as  trustee 
or  Individually,  J.  W.  Howe,  H.  T.  Buck,  M. 
H.  Murphy,  O.  H.  Bardln,  the  Rutland  Coun- 
ty Marble  Company,  Charles  H.  Barbour, 
Phoebe  J.  Barbour  (the  record  Indicates  that 
this  last  name  should  be  "Bardln"),  Lyman 
A.  Bardln,  Isaac  N.  Hillman,  Sarah  A.  Hill- 
man,  or  Ransom  B.  Hillman— ever  occupied 
land  north  of  the  present  "pin  line,"  unless 
it  may  hare  been  in  the  way  of  dumping 
some  refuse  from  the  quarry  now  owned  by 
the  defendants,  or  by  placing  marble  blocks 
on  the  land. 

The  plaintiff  became  the  owner  of  an  undi- 
vided nine-tenths  interest  in  the  land  immedi- 
ately north  of  the  line  in  question  by  deed 
from  Walter  W.  Fant  dated  May  27,  1890; 
of  an  undivided  two-thirds  interest  In  an  un- 
divided one-tenth  part  of  this  land  by  deed 
from  John  Mead,  Charity  Burr  and  her  hus- 
band, dated  July  6,  1905;  and  of  the  other 
one-third  interest  in  an  undivided  one-tentb 
part  by  deed  from  defendant  Eastman  (un- 
der order  of  the  court  of  chancery)  dated  No- 
vember 15,  1911.  This  land  baa  sometimes 
been  spoken  of  or  referred  to  as  the  "Fant 
lot,"  or  "Fant  property."  It  has  also  some- 
times been  called  the  "C/lark  lot,"  and  on 
Brown's  plan  it  is  marked  "Second  Lot  B." 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASBLTINB,  POWERS,  and  TAI- 
LOR, JJ. 

John  G.  Sargent,  of  Ludlow,  and  Walter  S. 
Fenton,  of  Rutland,  for  appellants.     V.  O. 


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VERMONT  MARBLE  CO.  v.  EASTMAN 


157 


Partridge,  of  Proctor,  and  Lawrence,  Law- 
rence &  Stafford  and  T.  W.  Moloney,  all  of 
Rutland,  for  appellee. 

WATSON,  J.  The  primary  question  In  this 
case  is  as  to  the  true  location  of  the  di- 
visional line  between  land  owned  by  the 
plaintiff  and  land  owned  by  defendant  Bast- 
man,  the  legal  and  record  title  to  which 
latter  is  held  by  defendant  Clement  In  trust, 
the  same  being  in  the  nature  of  an  equitable 
mortgage,  and  not  otherwise. 

[1]  Both  sides  discuss,  more  or  less,  ques- 
tions regarding  the  admission  or  rejection  of 
evidence;  but  no  such  objection  was  made 
by  either  side  by  exception  to  the  report  filed 
in  the  court  of  chancery,  and  consequently 
no  question  of  that  character  can  be  heard. 
The  statute  is  peremptory  that  no  such  ques- 
tion shall  be  heard  in  this  court  unless  the 
objection  is  made  by  exception  to  the  report 
duly  filed  in  that  court  P.  S.  1268.  And  this 
statute  is  construed  to  be  alike  applicable 
when  the  cause  is  heard  before  a  chancellor. 
Barber  v.  Bailey.  86  Vt  219,  84  Atl.  608,  44 
L.  R.  A.  (N.  S.)  08;  Rowley  v.  Shepardson, 
90  Vt  25,  96  AU.  374;  Osha  v.  Hlggins,  90 
Vt  130,  96  Atl.  700. 

[2]  Defendants  filed  18  exceptions  to  find- 
ings of  fact;  but  the  plaintiff  urges  that 
these  exceptions  should  not  be  considered, 
because,  as  shown  by  aflSdavlts,  neither  the 
company  nor  any  of  its  solicitors  received  a 
copy  of  the  exceptions,  nor  had  any  knowl- 
edge or  notice  that  they  had  been  filed,  prior 
to  the  time  when  a  copy  of  defendant's  brief 
was  received  in  exchange  for  a  copy  of 
plaintiff's  brief,  late  Sunday  afternoon,  a 
week  and  two  days  before  the  case  was  ar- 
gued in  this  court  The  affidavits  do  not 
show  that  at  the  time  of  filing  the  exceptions 
a  copy  thereof  was  not  left  with  the  clerk 
of  the  court  for  the  adverse  party,  as  re- 
qolred  by  chancery  rule  47.  By  rule  46  it 
was  the  duty  of  the  clerk,  when  these  ex- 
ceptions were  filed,  forthwith  to  notify  the 
plaintiff  or  its  solicitors  of  such  filing.  Ac- 
cording to  the  affidavits,  this  was  not  done. 
Such  negligence  on  the  part  of  the  clerk  be- 
ing shown,  we  cannot  say  that  it  was  not 
due  to  his  neglect  also  that  plaintiff  or  its 
solicitors  did  not  receive  a  copy  of  the  ex- 
ceptions. In  these  circumstances  it  would 
be  doing  the  defendants  an  Injustice  to  de- 
prive them  of  the  benefit  of  their  exceptions 
on  the  ground  stated,  when,  so  far  as  ap- 
pears, the  fault  was  not  theirs. 

[3]  The  transcript  of  testimony  was  not 
made  a  part  of  the  chancellor's  report  It 
was  referred  to  by  the  defendants  in  their 
exceptions  and  made  a  part  thereof ;  but  this 
does  not  bring  it  before  us.  Royce  v.  CJftr- 
penter.  80  Vt  37,  66  Atl.  888;  Child  v.  Pinney, 
81  Vt  314,  70  AU.  566;  Barber  v.  Bailey,  cit- 
ed above. 

[4,  S]  ESxceptions  10,  11,  and  13,  not  being 
briefed,  are  waived.  Exceptions  1,  4,  6,  7,  8, 
9,  12,  14, 16, 16,  and  17  involve  the  examina- 


tion and  consideration  of  evidaioe  not  before 
the  court;  hence  we  cannot  say  that  the  evi- 
dence did  not  support  the  findings.  Fraser 
V.  Nemey,  89  Vt  257,  96  Atl.  601. 

[(]  Exception  2  Is  to  the  finding  that  the 
deed  from  Walter  W,  Fant  to  the  plaintiff 
is  a  warranty  deed,  for  that  its  legal  charac- 
ter Is  a  question  of  law,  not  of  fact ;  and  ex- 
ception 3  is  to  the  finding  that  the  deed  from 
Phoebe  J.  Bardln  to  Charles  H.  Barbour  Is  a 
quitclaim  deed,  on  the  same  ground.  Wc 
give  these  two  exceptions  no  consideration; 
for,  if  it  be  conceded  that  in  each  instance 
the  court  was  wrong,  the  defendants  were 
not  harmed  thereby  In  the  view  we  take  of 
the  case. 

Exception  6  is  to  the  language  In  article 
70  of  the  findings,  "unless  there  was  some- 
thing In  the  record  title  to  put  the  orator 
upon  notice  at  the  time  it  bought  of  Fant, 
of  a  claim  by  the  adjoining  owner  on  the 
south  to  a  line  north  of  the  present  'pin 
line,'  there  was  nothing  sufficient  to  give  It 
such  notice,"  for  that  the  matter  there  Stated 
is  a  question  of  law,  and  not  of  fact,  and  the 
determination  of  what  is  sufficient  to  give 
such  notice  is  a  question  of  law  for  the  court 
upon  all  the  facts  in  the  case.  However  this 
may  be,  the  disposition  we  make  of  the  case 
renders  the  question  here  raised  Immaterial. 

The  question  presented  by  exception  18  Is 
determined  below. 

Findings  to  which  no  except{(m  was  taken 
show  that  the  lands  between  which  is  the  di- 
visional line  In  question  were  formerly  own- 
ed by  Andrew  J.  Mead,  under  whom,  as  com- 
mon grantor,  through  divers  conveyances, 
both  the  plaintiff  and  the  defendants  claim 
their  titles,  going  back  to  the  same  day,  Sep- 
tember 29,  1866;  that  there  Is  no  dispute  as 
to  the  location  of  Head's  north  line,  it  being 
correctly  shown  in  plaintlfTs  plan.  Exhibit 
118,  dated  September,  1914.  The  record 
shows  that  the  stone  wall  mentioned  in  the 
deeds  from  the  common  source  and  made  the 
easterly  boundary  of  the  lands  thereby  con- 
veyed (as  far  as  the  wall  extends),  now  own- 
ed by  the  plaintiff  and  by  the  defendants,  re- 
spectively, and  between  which  the  location  of 
the  line  is  now  in  dispute,  is  still  there.  This 
wall  may  well  be  treated  as  a  permanent  ob- 
ject in  its  original  location  on  the  ground. 
The  deeds  and  the  decrees  in  the  chain  of  ti- 
tle of  each  of  the  parties  were  made  exhibits 
in  the  case,  and  are  before  us  as  a  part  of 
the  chancellor's  report. 

On  September  29,  1866,  Andrew  J.  Mead 
gave  a  bond  for  a  deed  of  a  certain  part  of 
his  farm,  particularly  describing  It,  in  favor 
of  Horace  G.  Clark,  Alanda  W.  Clark,  Nor- 
man Clark,  Gardner  L.  Gates,  and  Hiram  L. 
Briggs,  giving  them  and  their  assigns  the 
right  to  enter  upon  the  premises  for  the  pur- 
pose of  opening,  developing,  and  working  any 
and  all  marble  quarries  thereon,  within  the 
time  therein  limited.  At  the  same  time  Mead 
gave  a  bond  for  a  deed  of  another  certain 
part  of  his  farm,  particularly  desLMbing  It, 


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101  ATI-AJfTIO  RBPORTEE 


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In  (aror  of  Wlllard  N.  Oliver,  Horace  G. 
Clark,  Alanda  W.  Qark,  and  Norman  Clark, 
giving  tbem  similar  rights  as  to  entering 
upon  the  premises  for  the  purpose  of  opening, 
developing,  and  working  marble  quarries 
thereon  within  the  time  tliereln  limited. 
Within  a  few  days  after  the  giving  of  these 
bonds  they  were  recorded  in  the  town  clerk's 
office  of  the  town  In  which  the  land  is  situ- 
ated. On  January  1, 1S69,  Mead  and  his  wife 
gave  a  warranty  deed  In  favor  of  the  obligees 
in  the  bond  first  mentioned,  the  description 
therein  of  the  land  conveyed  being  Identically 
the  same  as  the  description  in  that  bond, 
complete  In  itself,  and  as  follows  (we  num- 
ber the  calls  for  convenience): 

"(1)  OommeDciDg  at  a  point  on  the  first  stone 
wall  west  of  the  highway  leading  past  the  prem- 
ises of  the  said  Mead,  10  rods  south  of  said 
Mead's  north  line,  the  north  end  of  said  stone 
wall  being  65%  rods  westerly  from  said  high- 
way, and  said  point  being  on  said  stone  wall  10 
rods  south  of- said  Mead's  north  line;  (2)  thence 
southerly  on  said  wall  10  rods;  (3)  thence  west- 
erly parallel  with  said  Mead's  north  line  fifty- 
six  rods  to  a  stake  and  stones;  (4)  thence 
northerly  at  right  angles  with  said  last-mention- 
ed lineto  a  point  10  rods  south  of  said  Mead's 
north  line;  and  (5)  thence  easterly  to  the  place 
of  beginning." 

Through  this  deed  the  plaintiff  traces  Its 
chain  of  title  from  the  common  grantor;  and 
in  the  successive  subsequent  conveyances  the 
description  of  the  land  Is  the  same  as  the 
foregoing,  either  given  in  full  or  by  reference 
to  this  deed.  On  the  same  day  Mead  and 
his  wife  gave  a  warranty  deed  In  favor  of 
the  American  Marble  Company,  the  descrip- 
tion therein  of  the  land  conveyed  being  iden- 
tically the  same  as  the  description  in  the 
bond  secondly  above  mentioned,  complete  In 
Itself,  and  as  follows  (we  number  the  calls  for 
convenience): 

"(1)  Commencing  at  a  point  on  the  first  stone 
wall  west  of  the  hiirhway  leading  past  the  resi- 
dence of  the  said  Mead  20  rods  south  of  said 
Mead's  north_  line,  the  north  end  of  said  stone 
wall  being  53  Vi  rods  westerly  from  siiid  higli- 
way,  and  said  point  being  on  said  stone  wall  20 
rods  from  said  Mead's  north  line ;  (2)  thence 
southerly  on  said  stone  wall  to  the  end  of  the 
same,  and  thence  southerly  on  the  fence  that  joins 
onto  the  same,  in  all  20  rods  to  a  maple  tree; 
(3)  thence  westerly  58  rods  to  a  stake  and 
stones;  (4)  thence  northerly  at  right  angles  with 
said  last-mentioned  line  to  a  point  20  rods  south 
of  said  Mead's  north  line;  and  (5)  thence  east- 
erly in  a  line  parallel  with  said  Mead's  north 
line  to  the  place  of  beginning," 

Through  this  deed  the  defendants  trace 
their  chain  of  title  from  the  common  gran- 
tor ;  and  in  the  successive  subsequent  convey- 
ances the  description  of  the  land  conveyed 
Is  the  same  as  the  foregoing,  either  given  In 
full,  or  by  reference  to  this  deed,  or  to  some 
other  deed  In  the  chain  of  title. 

[7]  The  question  arises  as  to  the  true  In- 
terpretation of  the  boundaries  contained  In 
these  two  deeds  from  Mead.  Mead's  north 
line  runs  practically  east  and  west.  The 
stone  wall  mentioned  extends  from  this  north 
line  somewhat  southwesterly  for  a  distance 
of  approximately  22%  rods.    No  uncertainty 


in  the  description,  so  far  as  the  reading  of 
the  deeds  goes,  is  claimed.  And  the  only 
part  of  the  boundary  c<mtained  in  the  deed  in 
the  plaintiff's  chain  of  title  concerning  which 
any  real  question  can  arise  as  to  its  mean- 
ing when  applied  to  the  land  Is  the  iralnt  of 
commencement;  whether  this  is  to  be  found 
by  measuring  at  right  angles  (practically 
south)  from  said  north  line  at  a  place  where 
such  a  measurement  of  10  rods  Just  meets 
the  stone  fall,  or  by  measuring  that  distance 
from  said  north  line  along  the  stone  wall. 
The  plaintiff's  plan,  Exhibit  118.  drawn  to  a 
scale,  shows  that  the  right-angled  triangle, 
having  for  Its  perpendicular  a  line  10  rods 
long  drawn  from  said  north  line  south  to  the 
point  of  its  meeting  the  stone  wall,  and  for 
its  hypotenuse  a  line  dravim  from  this  point 
of  meeting,  along  the  wall  to  said  north  line, 
has  its  base  on  this  north  line,  approximately 
35  feet  long.  There  Is  nothing  In  the  deed 
indicating  that  the  hypotenuse  line,  running 
to  such  an  extent  southwesterly,  rather  than 
the  perpendicular  line  running  practically 
south,  is  the  course  of  measurement  from  the 
north  line  mentioned,  In  locating  the  point  of 
beginning. 

[S]  It  is  a  mle  of  constuctlon  that,  where 
a  boundary  line  Is  described  as  running  to- 
ward one  of  the  cardinal  points  of  the  com- 
pass. It  should  be  considered  as  running  di- 
rectly In  that  course,  unless  some  other  word 
or  words  are  used  for  the  purpose  of  qualify- 
ing its  meaning,  or  Its  direction  is  controlled 
by  some  object  Sowles  v.  MInot,  82  Vt.  344, 
73  Atl.  1025, 137  Am.  St  Rep.  1010;  Jackson 
V.  Lindsey,  3  Jotma.  Cas.  (N.  Y.)  86 ;  Brandt 
V.  Ogden,  1  Johns.  (N.  Y.)  156;  Hagan  v. 
Campbell.  8  Port  (Ala.)  9,  33  Am.  Dec.  287: 
SYatt  V.  Woodward,  32  Cal.  219,  91  Am.  Dec. 
573.  In  Currier  v.  Nelson,  08  Cal.  506,  31 
Pac.  531,  HI  Am.  St  Rep.  239,  this  rule  was 
applied,  as  In  the  Instant  case,  in  interpret- 
ing the  language  of  the  boundary  as  to  the 
point  of  commencement.  There  the  first  de^ 
scriptlve  call  In  the  deed  was  "commencing 
at  a  point  <m  the  northwesterly  line  of"  the 
street  named,  so  many  "feet  north  of  the 
northeasterly  line  of  another  street  named, 
and  the  court  was  called  upon  to  determine 
the  meaning  of  the  word  "north"  as  there 
used.  The  word  was  held  to  mean  due  north, 
unless  qualified  or  controlled  by  other  words, 
and  this  was  its  meaning  in  the  deed  under 
consideration. 

[9]  In  the  case  at  bar.  If  the  Intention  had 
been  to  fix  the  point  of  beginning  at  the  dis- 
tance given  southerly  of  Mead's  north  line, 
measured  along  the  wall,  it  was  easy  to  In- 
dicate In  language  plainly  to  that  effect,  the 
same  as  was  done  in  the  second  call,  "thence 
southerly  on  said  wall  10  rods."  There 
the  words  "on  said  wall"  show  that  the 
course  of  the  line  Is  controlled  by  the  course 
of  the  wall.  In  Park  v,  Pratt,  38  Vt  645, 
the  line  was  described  as  beginning  "on  the 
south  line  of  land  owned  by  Lafayette  Ly- 
on," and  running  "east  15  degrees  south  on 


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VERMONT  MARBLJi  CO.  y.  EASTMAN 


169 


said  Lyon's  line,"  etc.  The  referee  found 
that  the  true  dMslonal  line  ran  13%  de- 
grees south,  instead  of  15,  on  Lyon's  line, 
so  that  the  difference  between  the  course 
of  Lyon's  line  and  the  line  as  described  by 
the  compass  in  the  deed  was  1%  degrees. 
It  was  held  that  "on  said  Lyon's  line"  was 
the  controlling  description,  and  that  this 
made  Lyon's  land  an  abuttal,  a  boundary, 
and  in  effect  the  same  as  If  the  deed  had 
bounded  the  land  granted  north  by  Lyon's 
land. 

[10]  The  distance  of  this  course  being  defi- 
nitely stated  in  the  deed,  without  any  monu- 
ment as  Its  termination,  the  course  and  dis- 
tance must  govern.  Bagley  v.  Morrill,  46 
Vt.  M;  Grand  Trunk  Ry.  Co.  v.  Dyer,  49 
Vt  74.  And  the  call  requires  the  line  to  be 
10  rods  long  from  the  point  of  commence- 
ment named  in  the  deed.  Owen  t.  Foster, 
13  Vt  263;    Day  v.   Wilder,  47  Vt.  583. 

The  importance  of  right  conclusions  re- 
garding the  first  and  second  calls  Is  readily 
seen  when  we  observe  their  controlling  effect 
upon  the  third  call,  the  line  In  dispute  so  far 
as  it  rests  on  the  plaintiff's  title  deeds.  The 
third  call  requires  the  line  to  nm  westerly 
from  the  southerly  terminus  of  the  10-rod 
line  of  the  second  call,  parallel  with  Mead's 
north  line  56  rods  to  a  stake  and  stones. 
By  the  course  there  given  the  land  conveyed 
has  a  uniform  width  north  and  south,  cor- 
re^wndlng  with  its  width  at  the  easterly 
end,  and  answering  the  fourth  call,  "thence 
northerly  at  right  angles  with  said  last-men- 
tioned line  to  a  point  10  rods  south  of  said 
Mead's  north  line,"  and  the  fifth  call,  "thence 
easterly  to  the  place  of  beginning,"  the  land 
between  the  last-named  line  and  Mead's 
north  line  is  of  the  same  width  throughout 
as  at  the  east  end,  where  the  measurement 
of  10  rods  south  from  this  north  line  is  to 
be  made  in  locating  the  point  of  commence- 
ment 

[11]  The  language  of  this  deed,  interpreted 
in  connection  with,  and  in  reference  to,  the 
nature  and  condition  of  the  subject-matter  of 
the  grant  at  the  time  the  instrument  was 
executed,  and  the  obvious  purpose  the  par- 
ties had  in  view,  is  clear  and  unambiguous, 
its  meaning  is  a  question  of  law  for  the 
court,  and  the  intent  cannot  be  altered  by 
evidence,  or  findings,  of  extraneous  circum- 
stances. Crosby  v.  Montgomery,  38  Vt  238. 
The  language  being  clear  and  unambiguous, 
the  deed  is  to  be  Interpreted  by  its  ovni  lan- 
guage, and  the  court  is  not  at  liberty  to  look 
at  extraneous  circumstances  for  reasons  to  as- 
certain Its  Intent,  and  the  understanding  of 
the  parties  must  be  deemed  to  be  that  which 
their  own  written  instrument  declares. 
Smith  V.  Fitzgerald,  59  Vt.  451,  9  Atl.  604 ; 
Clement  v.  Bank  of  Rutland,  61  Vt  298,  17 
AH.  717,  4  Ta  R.  a.  425;  Marsh  v.  Fish,  66 
Vt  213,  28  Atl.  987 ;  New  York  Life  Ins.  & 
Trust  Co.  V.  Hoyt,  161  N.  Y.  1,  55  N.  E.  299. 

It  is  to  l>e  borne  in  mind  that  on  the  day 
of  giving  the  deed  Just  examined  Mead  also 


gave  the  deed  (to  the  American  Marble  Com- 
pany)  under  which  the  defendants  derive 
title  from  the  common  source.  The  bounda- 
ries in  the  two  deeds  are  so  essentially  alike 
In  form  as  to  the  first  call  and  as  to  the 
course  required  by  the  second  call  that  the 
legal  Interpretation  of  the  first  one  men- 
tioned in  these  reBi)ects  is  for  the  same  rea- 
sons the  legal  interpretation  of  the  other  al- 
sa  The  point  of  commencement  on  the  stone 
wall  is  to  be  found  by  measuring  at  right 
angles  south  from  Mead's  north  line,  at  the 
place  where  such  measurement  of  20  rods 
Just  meets  the  stone  wall;  and  by  the  sec- 
ond call,  "thence  southerly  on  said  stone 
wall  to  the  end  of  the  same,  and  thence 
southerly  on  the  fence  that  Joins  onto  the 
same  In  all  20  rods  to  a  maple  tree,"  the 
course  of  the  line  follows  the  course  of  the 
wall  and  the  course  of  the  fence,  terminat- 
ing at  the  maple  tree.  The  length  of  this 
course  Is  discussed  further  on.  The  norther- 
ly terminus  of  the  line  answering  the  fourth 
call,  "a  point  20  rods  south  of  said  Mead's 
north  line,"  is  definitely  fixed  as  at  a  specific 
distance  south  of  an  object  concerning  the 
location  of  which  there  was,  and  is,  no  mis- 
understanding. The  fifth  call  requires  not 
only  a  line  easterly  to  the  place  of  beginning, 
but  one  that  is  parallel  with  said  north  line. 
This  indicates  a  purpose  to  make  It  doubly 
sure  that  the  north  line  of  the  property  con- 
veyed shall  be  throughout  the  same  specified 
distance,  measured  at  each  end,  south  of 
Mead's  north  line;  for,  unless  it  be  made 
conformable  thereto  in  its  location  on  thu 
ground,  its  parallelism  must  be  wanting. 
Graves  v.  Mattlson,  67  Vt  630,  32  Atl.  498. 
The  description  contained  in  this  deed,  like 
that  contained  in  the  other  deed  from  Mead 
of  the  same  date,  is  definite,  certain,  unam- 
biguous; and  hence  we  interpret  it,  as  a 
matter  of  law,  without  noticing  any  extrin- 
sic evidence  (by  way  of  exhibits  before  us) 
introduced  on  the  basis  of  defendants'  claim 
of  latent  ambiguity,  or  any  extrinsic  facts 
reported.  Thus  it  is  seen  that  the  north  Une 
of  the  premises  conveyed  in  the  deed  from 
Mead  in  the  defendants'  chain  of  title  in 
no  wise  conflicts  with  the  south  line  of  the 
premises  conveyed  from  the  same  source  In 
the  plaintiff's  chain  of  title.  The  fact  that 
by  such  interpretation  of  these  two  deeds 
there  may  be  a  very  narrow  strip  of  land  be- 
tween the  properties  conveyed,  consequent 
on  the  fact  that  the  width  of  plalntlfTs  land 
is  governed  by  its  east  line  of  10  rods  meas- 
ured from  the  point  of  beginning,  southerly 
on  the  wall.  Instead  of  at  right  angles  with 
Mead's  north  line,  cannot  affect  the  legal 
meaning  of  either  Instrument. 

[1 2, 1 9]  Deeds,  surveys,  and  plans  not  re- 
ferred to  in  a  deed  in  question  can  neither 
restrict  nor  extend  the  import  of  the  terms 
used.  Butler  v.  Gale,  27  Vt  739.  So  far  as 
this  case  is  concerned,  however,  such  narrow 
strip  is  to  be  considered  as  a  part  of  de- 
fendants' grant;    for  not  only  Is  such  the 


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effect  of  the  allegations  In  the  bill,  admitted 
In  the  several  answers  of  defendants,  but  it 
Is  manifest  that  this  Is  according  to  the 
practical  construction  which  has  always 
been  given  to  the  deeds  through  which  de- 
fendants trace  their  title  In  their  application 
to  the  land  Itself. 

[14]  The  location  of  the  divisional  line  on 
the  land  was  a  question  of  fact  to  be  deter- 
mined on  the  evidence.  Grand  Trunk  Ry. 
Ck).  V.  Dyer,  cited  above.  As  a  put  of  his 
findings  the  chancellor  states  that  on  the 
west  side  of  the  stone  wall  which  runs  along 
the  east  side  of  the  land  of  the  plaintiff 
and  of  the  land  of  the  defendants  there  is 
now  a  marble  post  about  4  Inches  square, 
substantially  10  rods  south  of  the  north  line 
of  the  Mead  farm,  and  shows  above  ground ; 
that  there  Is  another  such  post  on  the  same 
side  of  the  same  wall,  substantially  10  rods 
measured  southerly  along  the  wall  from  the 
first  post,  and  standing  several  inches  above 
ground ;  that  there  is  another  such  post 
about  56  rods  west  of  the  last,  measuring  In 
a  line  substantially  parallel  with  Mead's 
north  line,  also  standing  several  Inches  above 
ground;  that  there  is  another  such  post 
north  of  the  one  last  mentioned,  substantial- 
ly 10  rods  south  of  Mead's  north  line;  that 
these  posts  were  put  there  before  1800 ;  that 
there  Is  now  In  the  ledge  three  iron  pins  in 
a  line  between  the  southerly  marble  posts 
mentioned,  which  Iron  pins  are  three-fourths 
of  an  Inch  In  diameter,  and  are  driven  firmly 
into  the  ledge,  standing  4  or  5  inches  above 
It  The  line  of  these  two  southerly  marble 
posts  and  the  three  Iron  pins  Is  marked  on 
plaintiff's  plan.  Exhibit  US,  as  the  "pin 
line."  In  1800  these  marble  posts  and  Iron 
pins  appeared  the  same  as  they  do  now,  and 
did  not  have  the  appearance  of  having  been 
recently   put   there. 

[IS]  "On  the  findings,"  as  reported  by  him 
and  in  connection  therewith,  the  chancellor 
states,  "the  decision  is  that  the  line  be- 
tween the  two  properties  Involved  In  this 
case  Is  the  so-called  'pin  line.' "  This  state- 
ment seems  to  be  considered  In  defendants' 
brief  as  a  conclusion  of  law;  but  such  con- 
sideration Is  hardly  warranted.  It  devolved 
upon  the  chancellor,  as  before  Indicated,  to 
determine  as  a  fact  the  location  of  the  true 
divisional  line  on  the  ground  itself.  With- 
out doubt  this  Is  what  he  undertook  to  do, 
as  he  well  might,  by  drawing  an  Inference 
to  that  effect  from  the  other  facts  reported, 
and  In  this  sense  used  the  word  "decision." 
"A  decision  of  the  court  is  its  finding  upon 
a  question  of  law  or  fact  arising  In  a  case." 
See  quotation  given  in  Webster's  Interna- 
tional Dictionary;  Froman  v.  Patterson,  10 
Mont.  107,  24  Pac.  692;  Wilson  v.  Vance,  55 
Ind.  394;  Gates  v.  Baltimore,  etc.,  R.  Co., 
154  Ind.  338,  56  N.  E.  722;  Corbett  v.  Twen- 
ty-Third St  R.  Co.,  114  N.  Y.  578,  21  N.  E. 
1033.  The  conclusion  of  law  is  stated  by 
the  chancellor  In  appropriate  language  In 
the  decree: 


"It  is  hereby  ordered,  adjodged  and  decreed 
that  the  line  dividing  land  of  the  orator  from 
land  of  defendants  *  *  *  is  the  line  marked 
by  three  iron  pins  •  •  •  in  the  marble  ledge 
and  marblo  monoments  at  the  east  and  west 
ends.    •    •    •" 

This  In  effect  disposes  of  defendants' 
eighteenth  exception  to  findings. 

It  Is  said  by  the  defendants  that  the  origi- 
nal bonds  and  the  deeds  following  them  by 
which  the  land  of  the  defendants  and  the 
land  of  the  plaintiff  were  carved  out  of  the 
lands  of  Mead  by  their  terms  placed  the 
boundary  line  between  them,  that  Is,  the 
north  line  of  defendants'  land  20  rods  north 
from  the  maple  tree  (a  known  monument  at 
which  defendants'  land  comers)  and  20  roda 
south  of  the  north  line  of  Mead's  farm  (a 
known  monument  not  on  or  adjacent  to  any 
of  the  land  In  either  bond  or  the  deed  fol- 
lowing it) ;  that  so  far  as  the  reading  of  the 
bonds  and  deeds  goes,  this  description  is 
clear,  and  not  ambiguous,  but  upon  applying 
them  to  the  land  It  at  once  appears  that  the 
distance  between  the  maple  tree  and  the 
north  line  pt  Mead's  farm  Is  only  36  roda 
6%  feet  Consequently  (it  is  further  said) 
the  north  line  of  the  land  bonded  to  Oliver 
and  others,  and  conveyed  to  the  American 
Marble  Company  in  the  formation  of  which 
they  were  associated,  could  not  be  both  20 
rods  north  from  the  maple  tree  and  20  roda 
south  from  Mead's  north  line;  and  so  here 
is  a  latent  ambiguity  to  cure  whldi  resort 
may  be  had  to  extrinsic  evidence. 

[1 1, 1 7]  The  description  contained  In  the 
bond  is  not  different  from  that  contained  In 
the  deed.  It  appears  (from  the  plaintiff's  plan. 
Exhibit  118)  that  the  length  of  the  course 
required  by  the  second  call  in  the  deed,  the 
southerly  terminus  of  which  is  given  as  the 
maple  tree.  Is  about  l»/io  rods  shorter  than 
the  distance  stated  in  the  deed.  Yet  this 
discrepancy,  appearing  in  the  application  of 
the  description  to  the  land,  does  not  con- 
stitute a  latent  ambiguity.  The  maple  tree 
is  a  natural  object  then  and  now  on  the 
ground,  directly  In  the  course  and  made  to 
mark  the  southeasterly  comer  of  the  land 
conveyed;  and  there  Is  nothing  by  reason  of 
which  the  description  In  this  respect  Is  taken 
out  of  the  general  rule  that  as  between 
courses  and  distances,  on  the  one  hand,  and 
abuttals  and  monuments,  on  the  other,  abut- 
tals and  monuments,  when  identified,  must 
control,  the  reason  of  the  rule  being  that 
mistakes  in  courses  and  distances  are  mora 
probable  and  more  frequent  than  in  abuttals 
and  monuments  capable  of  being  clearly 
designated  and  accurately  described.  Bundy 
V.  Morgan,  45  Vt  46;  FuUam  v.  Foster,  68 
Vt  590,  35  Atl.  484 ;  Sowles  v.  Butler,  71  Vt. 
271,  44  Atl.  355.  Moreover,  it  is  erroneously 
said  that  the  second  call  in  the  deed  in  terms 
places  the  north  line  of  defendants'  land  20 
rods  north  from  the  maple  tree.  As  already 
observed,  this  call  requires  the  course  to  be 
southerly  along  the  wall  and  along  the  fence 


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extending  fron»  the  end  of  the  wall,  the  dis- 
tance given  being  of  the  course  going  In  the 
direction  stated,  whldi  by  rule  of  construc- 
tion Is  limited  by  the  location  of  the  natural 
object  (maple  tree)  designated  as  the  termi- 
nus. 

[11,11]  The  place  of  beginning  being  well 
known  and  well  ascertained,  It  must  govern, 
and  the  grant  must  be  confined  within  the 
bonndarles  given  in  the  deed.  Oilman  v. 
Smith,  12  Vt  150.  And  there  being  no  un- 
certainty in  the  description,  to  locate  the 
lines  the  regular  order  of  the  calls  should 
be  observed  and  followed ;  and  a  posterior 
line  cannot  be  controlled  by  a  reverse  surrey. 
Taeker  v.  Satterthwalte,  123  N.  C.  511,  31 
S.  E.  722. 

It  Is  contended  by  the  defendants,  how- 
ever, that  the  dividing  line  as  now  claimed  by 
them  was  established  by  recognition  and 
acquiesced  In  by  the  owners  of  the  land  on 
both  sides  for  more  than  15  years,  and  that 
the  owners  and  occupants  of  defendants'  lot 
occupied  and  used  the  land  In  question,  treat- 
ing It  as  their  own,  In  which  occupancy,  use, 
and  treatment  of  the  lot  to  this  line  the 
plalntur  and  its  predecessors  in  title  ac- 
quiesced, sometimes  expressly,  sometimes  by 
inaction  and  license,  for  the  entire  period 
from  1866  to  IMl,  45  years.  This  raises 
the  question  of  title  in  the  defendants  by  ad- 
verse possession  of  the  strip  of  land  between 
the  tme  divisional  line  as  found  and  ad- 
judged by  the  chancellor  and  the  line  now 
claimed  by  them. 

This  action  does  not  involve  the  reforma- 
tion of  any  Instrument  of  conveyance  given 
by  Mead;  and  It  can  serve  no  good  purpose 
to  conjecture  why,  in  making  the  description 
of  the  land  in  the  bonds  and  in  the  deeds 
fSven  pursuant  to  the  bonds,  the  survey  and 
the  plan  made  by  Brown  were  not  followed. 
The  departure  therefrom  in  each  Instance  Is 
so  material  and  so  marked  as  to  indicate  a 
change  of  purpose.  The  descriptions  adopted 
show  unusual  care  and  precision  in  their 
framing.  Whatever  may  have  been  pre- 
riously  done  or  said  by  the  parties  to  the 
transactions,  relative  to  that  survey  and  plan, 
sneh  acts  and  declarations  were  merged  in 
the  written  Instruments  subsequently  execut- 
ed on  the  one  hand  and  accepted  on  the 
other;  and  neither  the  survey  nor  the  plan 
can  have  any  force  in  this  case,  beyond  what 
bearing  it  may  have,  if  any,  by  reason  of  Its 
subsequent  use  by  the  parties  in  connection 
with  the  asserted  recognition  of,  or  acquies- 
cence in,  the  line  now  claimed  by  defendants. 

[21]  Extrinsic  evidence  is  not  admissible 
to  show  that,  by  mistake,  one  tract  of  land 
Instead  of  another  was  inserted  In  either 
of  those  deeds,  thereby  really  establishing  a 
different  contract  McDufBe  v.  Magoon,  26 
Vt  518;  Pitts  V.  Brown,  49  Vt  86,  24  Am. 
Bep.  114. 

After  the  giving  of  the  bonds,  there  was  no 
«irvey  made  of  the  premises  until  July, 
101  A,-ll 


1873,  when  the  Green  suryey  was  made  as 
shown  in  the  statement  of  the  case.  It  is 
manifest  that  In  making  this  survey  no 
attempt  was  made  to  follow  the  boundaries 
contained  in  either  of  the  deeds  from  Mead, 
nor  even  to  locate  the  point  of  beginning 
according  to  the  requirements  tn  either.  The 
whole  purpose  was  to  establish  the  corners 
and  follow  the  boundaries  as  shown  by  the 
Brown  sun-ey  and  the  plan  made  pursuant 
thereto.  That  this  is  so,  and  that  the  de- 
scription in  the  respective  deeds  did  not 
correspond  therewith,  appear  from  the  plan 
made  by  Green  (Defendants'  Exhibit  39), 
whereon  It  is  stated  : 

"July  29, 1873.  Boundaries,  comers,  measure- 
ments, and  notes  made  herein  are  agreed  to  and 
witnessed  as  correct" 

— being  signed  by  Mead,  Marcellus  Newton, 
and  Charles  Woodhouse,  and  from  the  state- 
ment made  and  signed  by  H.  O.  Clark  In  con- 
nection therewith,  wherein  he  states  that: 

"Whereas,  in  both  deeds  [from  Meadl  it  has 
since  been  found  out  that  the  -way  in  which  the 
said  parcels  [of  land]  were  described  in  the  reo- 
ords  is  not  equivalent  to  the  parcels  as  original- 
ly laid  out  and  marked  by  one  Jas.  Brown  and 
agreed  to  by  the  said  Mead  and  ourselves:  Now, 
therefore,  *  *  *  I  hereby  agree  that  the 
said  properties  shall  be  and  remain  as  originally 
laid  out  by  said  Brown,  and  that  the  survey 
by  one  G.  B.  Green  signed  by  A.  J.  Mead  and 
M.  Newton  on  July  29,  1873,  •  •  *  is  ac- 
cordingly correct  and  satisfactory  to  us." 

The  notes  (on  Green's  plan)  agreed  to  as 
stated  above  are  particularly  significant  to 
the  same  effect.  Furthermore,  when  making 
his  survey,  Green  called  to  the  attention  of 
Woodhouse,  Clark,  and  Mead  the  fact  that 
the  calls  in  deed  did  not  correspond  with 
the  monuments  and  objects  on  the  land. 

Thus  It  is  seen,  and  by  Intendment  It 
will  be  taken  that  the  chancellor  found,  that 
the  line  which  defendants  contend  was  then 
recognized  and  thenceforth  acquiesced  in  by 
the  successive  owners  and  occupants  on  each 
side  thereof  for  a  period  of  more  than  15 
years  was  not  then  understood  to  be,  and  is 
not  the  south  line  of  the  land  now  ovraed 
by  the  plaintiff,  as  described  In  its  title  deeds, 
nor  the  north  line  of  the  land  now  owned  by 
the  defendants,  as  described  in  their  title 
deeds.  But  it  was  then  understood  to  be, 
and  is,  another  line  which  is  3  rods  and 
7%  feet  further  north  and  only  16  rods  and 
9  feet  south  of  Mead's  north  line,  which  In- 
creases the  size  of  defendants'  quarry  lot 
approximately  1%  acres  from  what  it  is 
according  to  their  paper  title.  We  need  not 
discuss  the  rule  where  the  true  divisional 
line  between  lands  of  adjoining  owners,  ac- 
cording to  the  calls  in  their  respective  deeds 
is  uncertain  and  in  doubt  and  Its  location  Is 
agreed  upon  and  established  by  parol  as  the 
line  to  which  the  title  of  each  extends,  fol- 
lowed by  the  acquiescence  of  such  owners, 
for  that  Is  not  this  case.  Here,  It  having 
been  ascertained  that  the  two  parcels  of  land 
described  In  the  two  deeds  mentioned  were 
"not  equivalent  to  the  parcels  as  originally 


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101  ATLANTIC  EEPORTBR 


(Vt. 


laid  ont  and  marked"  In  Brown's  surrey,  an 
attempt  was  made  some  years  afterwards, 
by  some  of  those  (at  least)  who  participated 
therein,  to  extend  the  title  of  defendants' 
grantors  northerly  by  establishing  the  di- 
visional line  as  marked  by  Brown  and  by 
Green  on  their  respective  plans. 

[21]  The  statements  before  mentioned 
made  and  signed  in  connection  therewith  were 
not  sufficient  as  a  memorandum  to  answer 
the  requirements  of  the  statute  of  frauds. 
They  do  not  contain  the  substantial  terms  of 
any  contract  for  the  sale  of  land,  or  of  an  in- 
terest in  land,  expressed  with  such  certainty 
that  they  may  be  understood  from  the  con- 
tract itself,  or  some  other  writing  to  which 
it  refers,  without  resorting  to  parol  evidence. 
Buck  V.  Pickwell,  27  Vt  157 ;  Adams  v.  Janes, 
88  Vt  834,  75  Atl.  799. 

[22]  The  so-called  recognition  of  and  ac- 
quiescence in  this  line  Is  without  force,  un- 
less followed  by  such  possession  of  the  land 
north  of  the  true  divisional  line  and  up  to 
the  line  thus  recognized  for  the  period  of  15 
/ears  as  shall  give  a  perfected  title  by  ad- 
rerse  iwssesslon.  Lewis  t.  Ogram,  149  Cal. 
505,  87  Pac.  60,  10  L.  E.  A.  (N.  S.)  610,  117 
Am.  St  Rep.  151;  Vosburgh  v.  Teator,  32 
N.  T.  661. 

[2S]  It  is  urged  that  the  facts  found  show 
that  the  American  Marble  Company  occu- 
pied the  land  up  to  this  line,  though  previous 
to  the  date  last  named,  and  that  this  occu- 
pancy, as  well  as  the  similar  occupancy  by 
the  successive  subsequent  owners  of  the 
land  within  the  defendants'  grant  Is  to  be 
considered  in  determining  defendants'  owner- 
ship by  adverse  possession  of  the  land  men- 
tioned without  their  grant  Yet  this  position 
cannot  be  sustained.  Neither  the  American 
Marble  Company  nor  any  of  its  successors 
had  any  color  of  title  to  the  strip  of  land 
in  question;  and  It  is  observable  from  the 
statement  of  the  case  that  of  such  successors 
none  prior  to  the  defendants  ever  occupied 
that  strip,  unless  It  may  have  been  in  the 
way  of  dumping  refuse  from  the  quarry  now 
owned  by  defendants,  or  by  placing  marble 
blocks  on  the  land.  Whatever  occupancy 
that  company  or  its  successors  in  the  way 
mentioned  had  of  the  land,  there  is  no 
finding  that  the  occupancy  by  any  of  them 
was  under  a  claim  of  right  Their  several 
possessions  therefore  do  not  appear  to  have 
been  adverse.  Demerltt  v.  Parker,  82  Vt  69, 
71  Atl.  833.  Indeed,  in  1884-85  Bardin,  then 
the  record  owner  of  the  land  south  of  the 
dividing  line,  wrote  his  son  (who  was  oi)erat- 
iiig  the  quarry),  "We  want  our  lines  estab- 
lished as  our  deeds  and  titles  specify,"  and 
that  he  thought  the  correct  way  to  have  the 
quarry  lot  surveyed  was  to  "run  out  the  line 
from  starting  point  and  plant  your  cor- 
ners as  the  title  reads,  and  If  Mr.  Mead  Is  not 
satisfied,  let  him  move  them  by  law."  See 
l>ay  V.  Wilder,  47  Vt  583,  593,  594. 

[94]  But  if  the  record  before  us  be  con- 


strued as  showing  sudi  possession  to  have 
been  severally  adverse,  as  defendants  urge, 
the  result  is  the  same.  The  land  so  adversely 
held  has  never  been  covered  by  the  descrip- 
tion of  the  land  contained  In  any  of  the  deeds 
within  the  defendants'  chain  of  title.  Nor 
is  It  found  that  each  prior  successive  grantee 
in  writing,  or  by  parol  agreement  or  under- 
standing, transferred  to  his  successor  his  pos- 
session of  said  land  without  the  calls  of  bis 
title  deeds,  accompanied  by  an  actual  delivery 
of  the  possession  of  the  premises.  No  privity 
of  estate  or  of  possession  between  the  suc- 
cessive disseisors  is  shown.  Without  some 
privity  between  them,  the  several  possessions 
caimot  be  tacked  so  as  to  make  continuity 
of  possession.  Winslow  v.  Newell,  19  Vt. 
164;  Sheldon  v.  Michigan  Cent.  R.  Co.,  161 
Mich.  506,  126  N.  W.  1056;  Illinois  Steel 
Co.  V.  Budzisz,  106  Wis.  499,  81  N.  W.  1027,  82 
N.  W.  634,  48  L.  R.  A.  830,  80  Am.  St  Rep. 
54;  Rich  V.  Naffzlger,  255  111.  98,  99  N.  E. 
341.  Since  there  was  no  privity,  upon  the 
termination  of  the  possession  of  each  disi 
selsor,  the  seisin  of  the  true  owner  revived 
and  was  revested,  and  a  new  distinct  dis- 
seisin was  made  by  each  successive  disseisor. 
Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241; 
Wlshart  v.  McKnight  178  Mass.  356,  69  N. 
a  1028,  86  Am.  St  R^.  486. 

Regarding  the  placing  and  maintaining  of 
guys  and  ropes  or  cables  on  the  land  north 
of  the  true  divisional  line  bs  the  defendants' 
predecessors  in  title,  It  Is  enough  to  say  that 
sudi  acts  are  not  found  to  have  been  under 
a  claim  of  right;  and  consequently,  for  rea- 
sons already  stated,  they  cannot  be  con- 
sidered on  the  question  of  a  prescriptive 
right  In  the  nature  of  an  easement  in  favor 
of  defendants'  land,  as  the  dominant  tene- 
ment, to  such  use  of  the  land  first  named, 
as  the  servient  tenement 

[25]  The  defendants'  ownership  of  their 
quarry  lot  began  May  29,  1903.  Hence  In 
point  of  time  they  cannot  of  themselves  have 
acquired  any  adverse  rights  In  or  to  the  land 
north  of  the  dividing  line  between  their  land 
and  the  land  of  the  plaintiff,  as  found  and 
adjudged  by  the  chancellor. 

Decree  affirmed,  and  cause  remanded. 

On  Motion  for  Reargument 

WATSON,  J.  The  foregoing  opinion  be- 
ing promulgated,  the  defendants  moved  for 
leave  to  reargue  the  case,  and  were  permit- 
ted to  file  a  brief  upon  that  motion,  the 
plaintiff  to  have  leave  to  submit  a  brief  In 
reply. 

[26]  It  Is  said  In  defendants'  brief  so  8til>- 
mltted  that  the  opinion  shows  that  the  court 
understood  that  the  two  deeds  from  the 
common  grantor  (dated  January  1,  1869)  do 
not  refer  to  each  other,  and  that  their  con- 
struction must  be  separate  and  distinct  be- 
cause of  that  fact,  citing  Butler  v.  Gale,  27 
Vt  739,  and  that  this  would  seem  to  be  a 
misunderstanding  of  the  court  where  It  r& 


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163 


dtes  the  description  In  each  of  the  deeds. 
In  each  Instance  It  states  that  the  descrip- 
tion is  "complete  In  Itself."  Whereas  "in 
the  case  at  bar  each  of  the  deeds  refers  to 
the  other,"  says  the  brief,  "and  makes  one 
property  an  abutter  of  the  other."  We  are 
here  referred  to  the  findings,  articles  1  and 
2,  also  to  orator's  Exhibits  C  and  O.  Articles 
1  and  2  relate  exclusively  to  the  giving  of  the 
two  bonds  for  deeds  of  the  properties  Dow 
owned  by  the  plaintiff  and  by  the  defendants, 
respectlTely.  These  findings  say  nothing  as 
to  the  relative  situations  of  the  properties 
described  in  the  bonds;  but  the  bonds  are 
made  exhibits  in  the  case,  and  the  descrip- 
tion of  the  land  now  owned  by  the  plaintiff, 
as  contained  in  the  bond  marked  Exhibit  C, 
and  as  contained  in  the  deed  subsequently 
given  by  Mead  In  performance  of  the  pro- 
visions of  that  bond,  is  correctly  copied  Into 
the  opinion,  except  in  the  latter  the  calls  are 
niunbered  for  convenience.  After  the  de- 
scription this  bond  contained  a  clause  as 
follows: 

"And  the  said  Mead  also  hereby  further  agrees 
to  convey  at  the  same  time  •  *  •  the  right 
of  way  acmsB  hig  land  from  the  highway  to  said 
premises  to  the  said  Horace  G.,  Alanda  W.,  Nor- 
man, Gardner  L.,  and  Hiram  Ia,  their  heirs  and 
«asigns,  la  common  with  Willard  N.  Oliver,  the 
said  Horace  G.,  Alanda  W.,  and  Norman,  they 
baring  this  day  talten  a  bond  for  a  deed  of  the 
piece  of  land  south  of  and  adjacent  to  said  prem- 
ises." 

The  other  bond,  Exhibit  O,  contains  the 
description  of  the  land  now  owned  by  the  de- 
fendants, exactly  as  contained  In  the  deed 
subsequently  given  by  Mead  in  performance 
of  the  provisions  of  that  bond,  and  as  copied 
Into  the  opinion  (excluding  the  numbers  of 
the  calls  as  in  the  other  instance).  This 
bond  then  contained  a  clause  as  follows: 

"And  the  said  Mead  also  hereby  further  agrees 
to  convey  at  the  same  time  *  *  •  the  right 
of  way  across  his  land  to  said  premises  from 
the  highway  to  the  said  Willard  N.,  Horace  G., 
Alanda  W.,  and  Norman,  their  heirs  and  as- 
signs, in  common,  with  tho  right  of  the  said 
Horace  G.,  Alnnda  W.,  Normnn,  and  one  Gard- 
ner Tx  Gates  to  the  use  of  said  water,  the  said 
Mead  having  this  day  executed  to  them  the 
said  Horace  6.,  Alanda  W.,  Norman,,  and 
Gaiflner  I>.  Gates,  thereby  agreeing  to  convey 
to  them  upon  certain  terms  therein  mentioned 
the  piece  of  land  north  of  and  adjacent  to  said 
premises." 

Neither  the  redtal  in  the  bond  first  men- 
tioned, that  the  parties  named  "having  this 
day  taken  a  ibond  for  a  .deed  of  the  piece  of 
land  south  of  and  adjacent  to  said  premises" 
nor  the  recital  in  the  bond  last  mentioned 
that  "Said  Mead  having  this  day  executed 
a  bond  to  them  [the  obligees  named  in  the 
other  bond]  thereby  agreeing  to  convey  to 
them  *  •  •  the  piece  of  land  north  of 
and  adjacent  to  said  premises"  was  any  part 
of  the  description  of  the  laud  thus  mentioned. 
Moreover,  the  words  "adjacent  to"  do  not 
necessari^  imply  "adjoining"  or  "contigu- 
ous." Mr.  Webster  says  "objects  are  adja- 
cent when  they  lie  close  to  each  other,  but 
not  necesi<arily,in  actual  contact."     To  the 


same  effect  is  'B&ooa  v.  Boston  &  Maine  B.  B., 
83  Vt  528,  77  Atl,  858.  In  each  bond  the  re- 
cital was  general  and  only  a  statement  show- 
ing why  the  rigllt  of  way  agreed  to  be  grant- 
ed for  the  benefit  of  the  premises  therein  de- 
scribed was  to  be  In  common  with  a  like  use 
agreed  In  the  other  bond,  to  be  granted  for 
the  benefit  of  the  premises  therein  described. 
The  statement  thus  made  in  either  bond  was 
not  intended  to  affect  the  description  of  the 
premises  previously  made  in  that  instrument, 
and  Is  not  to  be  used  for  such  purpose. 
Grand  Trunk  Ry,  Co.  v.  Dyer,  49  Vt.  74. 

[27]  But  there  Is  another  well-estaibllahed 
principle  of  law  by  which  the  recitals  quoted 
above  from  the  bonds  cannot  be  considered 
in  the  interpretation  of  the  deeds.  The 
bonds  were  executory  contracts  for  deeds, 
and  were  executed  and  consummated  by  the 
deeds  subsequently  given  on  January  1,  1869. 
Neither  of  the  deeds  so  given  contains  any 
such  redtal,  and  neither  makes  any  reference 
to  the  bond  In  i)erfonnance  of  the  provisions 
of  which  it  was  given.  In  each  instance  the 
deed  was  delivered  and  accepted  as  perform- 
ance of  the  previous  contract  to  convey,  and 
therefore  the  contract  was  conclusively  merg- 
ed in  the  deed,  and  even  though  the  terms  of 
the  deed  may  vary  from  those  contained  in 
the  contract,  the  deed,  so  far  as  its  construc- 
tion Is  concerned,  must  be  looked  to  alone  to 
determine  the  rights  of  the  parties.  In  Car- 
ter V.  Beck,  40  Ala.  590,  it  was  held  that  the 
acceptance  of  a  deed  is  considered  as  a  full 
compliance  with  the  contract  to  convey,  and 
as  annulling  it  In  Howes  v.  Barker,  3  Johns. 
(N.  Y.)  506,  3  Am.  Dec.  S26.  it  is  said: 

"The  contract  between  the  parties,  according 
to  the  articles  of  agreement  (under  their  hands 
and  seals),  was  executory,  and,  having  been  exe- 
cuted and  consummated  by  the  deed  subsequent- 
ly given,  the  agreement  became  null  and  of  no 
further  effect." 

In  Slocum  v.  Bracy,  55  Minn.  249,  66  N. 
W.  826,  43  Am.  St.  Rep.  490,  it  Is  said: 

"No  rule  of  law  is  better  settled  than  that, 
whore  a  deed  has  been  executed  and  accepted 
as  performance  of  an  executory  contract  to  con- 
vey real  estate,  the  contract  is  functus  officio, 
and  the  rights  of  the  parties  rest  thereafter  sole- 
ly on  the  deed." 

And: 

"This  is  so  although  tho  deed  thus  accepted 
varies  from  that  stipulated  for  in  the  contract." 

To  the  same  effect  are  Kerr  v.  Oalvlt, 
Walk.  (MIS.S.)  115,  12  Am.  Dec.  537;  TImms 
V.  Shannon,  19  Md.  296,  81  Am.  Dec.  632; 
Portsmouth,  etc.,  Refining  Co.  ▼.  Oliver  Re- 
fining Co..  109  Va.  613,  64  S.  B.  56,  132  Am. 
St.  Rep.  924 ;  2  DeVlIn  on  Real  Est.  (3d  Ed.) 
$  950a,  Such  a  contract,  not  referred  to, 
cannot  contradict  or  control  the  operation 
of  the  deed.  Clifton  v.  Jackson  Iron  Co., 
74  Mich.  183,  41  N.  W.  891,  16  Am.  St.  Rep. 
621.  Nor  is  the  general  rule  any  different 
where  the  previous  contract  was  In  the  form 
of  a  bond  conditioned  for  the  conveyance 
of  the  property,  as  in  the  case  at  bar. 
Shontz  r.  Brown,  27  Pa.  123;    Maniqpeaker 


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101  ATLANTIC  REPORTER 


(Vt 


V.  Plpher,  48  Pac.  868i;  2  Devlin  on  Real 
Est,  dted  above.  The  foregoing  general 
principle  is  tbe  same  as  has  been  declared 
by  this  court  regarding  the  merger  of  prior 
parol  agreements  when  a  deed  or  other  writ- 
ten instrument  has  been  subsequently  execut- 
ed, delivered,  and  accepted.  Smith  v.  Fitz- 
gerald, 69  Vt  451,  9  Atl.  604;  In  re  Perkins' 
Estate,  65  Vt  313,  26  AtL  637. 

It  is  said  by  defendants  in  their  brief  for 
reargument  that  the  language  of  the  opinion 
"is  such  as  to  show  that  the  matter  lies  in 
the  mind  of  the  court  as  if  the  plaintifTs 
title  to  its  property  were  prior  in  origin,  or 
at  least  contemporaneous  with  the  defend- 
ants' title,"  and  that  "this  must  be  a  mis- 
apprehension, for  the  defendants'  title  (equi- 
table title  at  least)  begins  In  an  Instrument 
on  record  six  days  I>efore  the  plaintiff's." 
It  Is  true  tliat  the  court  did  understand 
when  writing  the  opinion,  and  it  understands 
now,  that  the  rights  given  by  the  common 
grantor  by  Ills  two  bonds  mentioned  were 
contemporaneous.  The  bonds  bear  the  same 
date,  they  purport  to  have  been  acknowledg- 
ed by  the  grantor  before  the  same  justice  of 
the  peace  on  the  same  day,  and  the  chancel- 
lor found  that  they  were  given  "at  the  same 
time."  Exception  was  taken  to  this  finding 
for  that  it  "Is  not  supported  by  the  evidence 
and  is  contrary  to  the  evidence."  It  is  said 
in  defendants'  brief  for  reargument  that  the 
determination  of  tliis  question  "does  not  re- 
quire examination  and  consideration  of  evi- 
dence not  before  the  court  but  of  the  find- 
ings of  fact  made  and  filed  by  the  chancel- 
lor." 

[21-31]  The  chancellor  has  not  reported  on 
what  evidence  be  made  that  finding.  Parol 
evidence  was  admissible  to  show  the  true 
time  of  the  giving  of  each  bond.  4  Wig.  Ev. 
I  2410;  Bellows  v.  Weeks,  41  Vt  690;  Wil- 
mpt  V.  Lathrop,  6T  Vt  671.  32  AtL  861.  It 
d6es  not  appear  that  such  evidence  was  not 
before  the  chancellor,  and  we  cannot,  for  the 
purpose  of  finding  error,  assume  that  the 
evidence  did  not  support  the  finding.  Hyde 
V,  Swanton,  72  Vt  242,  47  Atl.  790.  The 
evidence,  other  than  exhibits,  not  being  be- 
fore us,  it  does  not  appear  that  the  finding 
was  not  made  upon  sufficient  evidence. 
Sowles  r.  Hall,  73  Vt  55,  50  AU.  550.  In  the 
circumstances  shown,  including  the  fact  that 
some  of  the  obligees  in  the  two  bonds  were 
the  same  persons,  and  the  further  fact  of  the 
redtal  In  each  bond  noticed  above,  there  can 
be  no  doubt  that  each  set  of  obligees,  when 
receiving  the  bond  to  them,  had  knowledge  of 
the  giving  of  the  other  bond.  It  should  be 
borne  in  mind  that  every  reasonable  intend- 
ment is  to  be  made  in  favor  of  the  decree 
under  review.  The  fact  that  one  of  the 
lx>nds  was  placed  on  record  before  the  other 


*  Reported  In  full  In  the  Pacific  Reporter ;  re- 
ported as  a  memorandum  decision  vitbottt  opinion 
In  t  Kan.  App.  m. 


gives  it  no  priority  as  a  contract  for  title. 
Hill  V.  Murray,  56  Vt  177. 

It  is  further  said  in  defendants'  brief  for 
reargument  that  the  court  in  its  opinion 
states  tliat  the  description  in  defendants' 
deed,  like  that  in  the  plaintifTs,  is  definite, 
certain,  unambiguous,  and  therefore  it  is  in- 
terpreted as  a  matter  of  law  without  notic- 
ing exhibits  or  extrinsic  facts  reported.  In 
that  connection  defendants  state  it  to  be 
their  belief  that  further  discussion  must 
make  It  clear  to  the  court  "that  the  existence 
of  a  monument  on  the  land,  placed  there 
and  understood  by  all  the  parties  as  marking 
the  'point'  of  beginning  of  the  description, 
is  not  extrinsic  matter,  but  must  be  con- 
sidered, as  a  matter  of  law,  in  connection 
with  and  in  reference  to  the  nature  and  con- 
dition of  the  subject-matter  of  the  grant  at 
the  time  the  Instrument  was  executed  and  the 
obvious  purpose  which  the  parties  had  in 
view,"  and  that,  "so  interpreting  the  deed, 
with  the  fact  found  that  monument  was  actu- 
ally set  by  the  parties  to  designate  the  'point* 
of  beginning  described  in  the  deed,  in  apply- 
ing the  description  to  the  land  It  must  start 
at  that  monument."  Again,  it  will  be  seen 
that  this  claim  that  "a  monument  was  actu- 
ally set  by  the  parties  to  designate  the  'point' 
of  beginning  described  in  the  deed"  is  not 
borne  out  by  the  record,  not  if  "by  the  par- 
ties" is  meant  as  the  language  indicates  all 
the  parties  to  the  proposed  purchase  or  pur- 
chases. The  findings  show  that,  "in  the 
fall  of  1866  negotiations  having  been  entered 
Into  between  Andrew  J.  Mead  and  prospee- 
tive  purchasers  of  the  quarry  property,"  on 
September  26,  1866,  the  Brown  survey  was 
made  "at  the  request  of  Mead  and  Alanda  W. 
Clark,  one  of  the  prospective  purchasers"; 
that,  "accompanied  and  directed  by  said  Al- 
anda W.  Clark  and  Mr.  Mead  and  his  son, 
Eugene,  Mr.  Brown"  made  this  survey ;  that 
Mead  paid  Brown  for  his  services,  and  Alan- 
da  W.  Clark  paid  for  a  team  for  his  use. 
It  is  further  found  that  on  the  next  day 
a  rough  sketch  or  plan  of  the  premises  was 
prepared,  and  Mead  made  and  retained  a 
copy  of  it  for  himself,  showing  in  detail  the 
boundaries,  comers,  monuments,  and  distanc- 
es, and  containing  complete  directions  for 
drawing  the  conveyances  as  shown  thereon; 
that  "no  survey  or  measurement  except  on 
the  20-rod  parcel  and  the  90-rod  piece  had 
been  made  at  that  time,  except  to  measure 
ofr  the  width  of  the  '10-rod  lot  B.'"  Bnt 
the  findings  do  not  eliow  that  any  of  the  other 
prospective  purchasers  (who  became  obligees 
in  the  bonds  fbr  deeds)  had  anything  to  do 
with  causing  or  authorizing  the  Brown  sur- 
vey and  plan  to  be  made,  nor  that  any  of 
them  thereafter  ratified  this  survey  or  plan, 
except  the  statement  made  In  writing  by 
Horace  O.  Clark  on  July  28, 1873,  at  the  time 
the  Green  survey  was  made,  which  was  6 
years  and  10  months  after  the  bonds  were 
given,  and  more  than  4V^  years  after  the 


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166 


deeds  of  January  1,  1869,  wore  delivered  and 
accepted  as  performance  of  the  contracts  to 
convey.  Tlie  defendants  had  the  burden  of 
proof  upon  the  foregoing  question,  and.  Judg- 
ed by  the  record,  they  failed  to  sustain  It 
As  seal  by  the  statement  of  the  case: 
Brown,  in  making  his  survey,  "ran  a  line  at 
right  angles  to  the  north  line  of  the  Mead  farm 
northerly  from  the  point  where  two  fences 
comer  at  the  north  side  of  a  largo  maple  tree. 
On  this  line  he  measured  off  20  rods  and  then 
set  a  stake.  Throufrh  this  stake  he  ran  a  line 
parallel  to  the  Mead-Blanchard  line  easterly  to 
a.  stone  wall  whore  be  set  a  stake,  and  westerly 
to  an  old  fence  running  northerly  and  southerly 
and  there  set  a  stake.  Prom  the  stake  first  set 
he  continued  the  right  angle  line  northerly  10 
rods,  and  there  sot  a  stake,  and  from  that  stake 
ran  easterly  parallel  with  the  Mead-Blanchard 
line  to  the  said  stone  wall.  From  the  maple 
tree  he  ran  westerly  along  the  line  of  a  board 
fence  56  rods  to  the  north  bar  post  of  a  barway 
then  standing,  and  there  set  a  stake,  and  then 
turned  a  right  angle  to  the  north  and  ran  a 
line  to  meet  the  line  parallel  with  the  Mead- 
Blancfaard   line." 

[32]  But  the  Brown  survey  and  plan,  not 
being  participated  In,  authorized,  or  ratified 
by  all  the  parties  to  either  contract  to  con- 
vey, and  not  being  referred  to  therrfn,  nor 
In  either  deed  of  January  1,  1869,  cannot  be 
considered  In  the  construction  of  either  the 
bonds  or  the  deeds.  Sanborn  v.  Clough.  40 
N.  H.  316 ;  Wells  v.  Jackson  Iron  Mfg.  Co., 
47  N.  H.  235,  90  Am.  De&  575.  The  case  last 
dted  is  macta  in  point.  The  chief  matter  in 
controversy  was  the  title  to  the  summit  of 
Mt.  Washington,  which  the  plaintiffs  claimed 
as  owners  of  Thompson  &  Meserve's  purchase, 
and  the  defoidant  as  owner  of  Sargent's  pur- 
chase. The  plaintiff  introduced  as  evidence 
of  paper  title,  a  resolution  of  the  Senate  and 
House  authorizing  the  Governor  to  appoint  a 
land  commissioner,  whose  duty  It  was  to 
sell  certain  lands  of  the  state  and'  execute 
deeds  therefor,  a  copy  of  the  proceedings  of 
the  Governor  and  council  nominating  and 
appointing  one  James  Wllley  land  commis- 
sioner, and  a  copy  of  quitclaim  deed  from 
Wllley  to  Thompson  &  Meserve,  conveying  a 
tract  of  land  "beginning,"  etc.  Thompson 
testified  to  a  survey  made  by  him  and  Wll- 
ley after  negotiations  between  them  for  the 
sale,  and  a  few  days  before  the  date  of  the 
Wllley  deed,  and  that  their  object  was  to 
Ar  the  bounds  of  the  land  to  be  conveyed. 
Tbe  court  said  that  the  prior  negotiations 
must  be  taken,  so  far  as  the  construction  of 
the  deed  was  concerned,  to  have  been  merged 
In  that  instrument,  the  conclusive  presump- 
tion being  that  the  whole  engagement  of  the 
parties  and  the  extent  and  manner  of  it  were 
reduced  to  writing;  that  the  deed  contained 
no  reference  to  any  mcmument  established  by 
Thompson  or  WiUey,  or  to  any  survey  by  them, 
and  the  effect  of  the  evidence,  at  most,  could 
tie  merely  to  show  that  Wllley  and  Thompson 
intended  a  dlBefent  tract  of  land  from  that 
afterwards  conv^ed  by  the  deed,  if  the  lines 
of  tbeir  exploration  were  found  to  differ  from 
tlie  calls  of  the  deed,  and  its  reception  to  con- 


trol the  deed  would  be  In  violation  of  a  prin- 
ciple quite  elementary;  that,  "besides,  Me- 
serve, who  was  one  of  the  grantees  in  tbe 
deed,  was  not  a  party  to  this  transaction  by 
Wllley  and  Thompson,  and  there  is  no  evi- 
dence that  he  ever  authorized  or  ratified  it. 
Prescott  V.  Hawkins,  12  N.  H.  27.  This  evi- 
dence was  therefore  incompetent  to  affect 
the  construction  of  the  deed." 

It  follows  that,  since  all  the  parties  in 
interest  did  not  cause  or  authorize  the 
Brown  survey  to  be  made,  nor  ratify  it,  the 
comers  marked  in  the  course  of  that  survey. 
Including  tbe  points  of  beginning,  were  not 
In  a  legal  sense  marked  by  the  parties,  and 
cannot  be  regarded  as  practical  locations  oon- 
trolllng  the  courses  of  the  deeds  or  either  of 
them. 

It  Is  further  urged  In  the  defendants'  brief 
for  reargument,  as  in  their  former  brief,  that 
the  divisional  line  as  claimed  by  them  was 
subsequently  recognized  and  acquiesced  in  by 
the  parties ;  in  other  words,  that  the  parties 
themselves,  by  their  practical  construction  of 
the  deeds,  treated  the  location  of  the  line  as 
being  where  defendants  now  claim  it  to  t>e. 
In  connection  with  this  claim  particular  ref- 
erence Is  made  to  what  they  please  to  term 
by  a  misnomer,  "the  solemn  declaration  of 
Mead  on  the  Green  plan"  that  the  northeast 
corner  stake  set  by  Brown  correctly  shows 
the  place  of  the  northeast  comer  of  defend- 
ants' land.  Notice  was  taken  in  the  opinion 
of  the  so-called  recognition  and  acquiescence 
of  the  divisional  line  as  claimed  by  defend- 
ants, in  connection  with  and  consequent  upon 
the  resurvey  and  plan  made  by  Green  in 
July,  1873,  and  the  statements  placed  on  the 
plan,  and  the  separate,  written  statement 
then  made  and  signed  by  Horace  G.  Clark 
relating  thereto,  as  far  as  was  deemed  nec- 
essary and  proper  in  the  determination  of 
the  case.  But,  in  view  of  the  arguments  put 
forth  why  the  motion  for  reargument  should 
be  granted,  we  discuss  here  more  fully  the 
significance  of  that  survey,  including  the 
matters  connected  therewith,  as  bearing  upon 
the  question  of  recognition  and  acquiescence 
presented.  At  the  time  when  that  resurvey 
and  the  plan  were  made,  and  when  the  notes 
on  the  latter  were  agreed  to  and  signed,  An- 
drew J.  Mead  owned  a  one-tenth  undivided 
Interest  in  the  property  now  owned  by  the 
plaintiff.  Horace  G.  Clark,  Norman  Clark, 
and  Alanda  W.  Clark  owned  the  remaining 
nine-tenths  Interest  therein.  The  property 
now  owned  by  defendants  was  then  owned, 
seven-sixteenths  by  Lyman  Bardin,  two-six- 
teenths by  Stillman  C.  White,  and  seven-six- 
teenths by  Isaac  M.  Hillman.  The  findings 
show  that  of  the  then  owners  of  the  property 
now  owned  by  the  plaintiff  only  Mead  had  to 
do  with  the  making,  or  the  causing  to  be 
made,  of  tills  resurvey  and  plan,  and  of  the 
then  owners  of  the  property  now  owned  by 
defendants  only  Bardin  liad  to  do  with  the 
causing  of  that  resurvey  and  plan  to  be 
made.   The  record  states  that  Green  was  em- 


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101  ATIiANTIO  REPORTHB 


(Vt 


ployed  to  do  this  work  "by  both  Mead  and 
Bardln,  and  each  paid  one-half  of  bis  charges 
therefor."  Furthermore,  none  of  the  other 
common  owners  of  either  property,  except 
Horace  G.  Clark  by  his  writing  referred  to 
abo7e,  ever  authorized  or  ratified  this  sur- 
vey or  plan,  so  far  as  the  case  shows,  and 
if  the  defendants  claim  otherwise,  the  bur- 
den was  on  them  to  sbow  it  4  R.  C.  Ia  120. 
The  conduct  of  Horace  G.  as  president  of  the 
American  Marble  Company  is  referred  to  by 
defendants  in  connection  with  their  claim  In 
this  behalf,  but  there  Is  nothing  in  the  find- 
ings showing  bis  conduct  in  the  position  nam- 
ed to  have  this  effect  as  a  matter  of  law. 

(33]  The  law  Is  that  an  agreement  by  one 
of  several  co-owners  establishing  a  doubtful 
or  disputed  boundary  is  not  binding  on  the 
others  unless  they  consent  thereto,  and  so  as 
H  general  rule  all  the  parties  interested  in 
the  lands  mast  be  parties  to  the  agreement. 
9  a  J.  236;  Strlckley  v.  Hill,  22  Utah,  257, 
62  Pac  8(Ki,  83  Am.  St  Uep.  786;  Wright  v. 
WUloughby,  79  S.  C.  438,  60  S.  B.  971;  Smith 
V.  GlUey  (Tex,  Civ.  App.)  135  S.  W.  1107. 
See  Sawyer  v.  Coolldge,  34  Vt  303;  Sllsby 
A  Co.  V.  Kinsley,  89  Vt  263,  05  AU.  634. 

The  finding  that  "Green  discovered  and 
called  to  the  attention  of  Woodhouse,  Clarks, 
and  Mead  the  fact  that  the  calls  in  deed 
concerning  the  boundary  did  not  correspond 
with  the  monuments  and  objects  on  the 
land,  and  that  the  marble  post  marking  the 
northwest  comer  «f  the  06  rod  piece  was  8 
feet  farther  south  of  the  butternut  tree  than 
Brown  bnd  found  and  Mead's  plan  shows," 
is  not  sufndent  to  establish  a  practical  loca- 
timi  of  the  boundary  line  on  the  ground  as 
against  Alanda  W.  Clark  and  Norman  Clark, 
construing  the  word  "Clarks"  as  including 
thnn,  in  the  absence  of  proof  that  they 
agreed  to  the  survey  as  establishing  the  cor- 
rect line.  9  C.  J.  243;  Hniby  v.  Lonseth,  63 
Wash.  fiSO,  116  Pac.  26.  Nor  in  this  respect 
is  the  standing  of  Alanda  W.  Clark  affected 
hy  the  fact  that  he  participated  in  the  mak- 
ing of  the  Brown  survey;  for,  as  ob6er\'ed 
in  the  (pinion,  that  survey  was  not  followed 
by  Mead  In  describing  the  properties  to  be 
conveyed,  and  whatever  was  previously  said 
and  done  concerning  the  survey  was  merged 
In  the  written  instruments  subsequently  exe- 
mted  on  the  one  hand,  and  accepted  on  the 
other,  and  it  can  have  no  bearing  In  the  case 
unless  it  was  afterwards  used  by  the  parties 
in  connection  with  the  asserted  recognition 
of,  and  acquiescence  in,  the  line  now  claim- 
ed by  the  defendants.  There  is  no  finding 
that  Alanda  W.  made  any  such  use  of  It  At 
the  time  that  survey  was  made  he  was  one 
of  the  prospective  purchasers  of  each  piece 
of  property,  and  became  one  of  the  obligees 
in  each  bond  tor  a  deed.  At  the  time  of  the 
Green  resurvey  he  was  interested  only  In 
the  property  now  owned  by  the  plaintiff. 
'lliis  shows  a  reason  why  at  the  latter  time 
he  may  not  have  been  willing  to  become  a 
portjr  to  the  so-called  recognition  and  acqui- 


escence, which,  if  It  had  the  force  now  claim- 
ed for  It  would  deprive  him  and  his  co-own- 
ers of  a  strip  of  land  within  their  title  deeds 
approximately  2%  rods  wide,  as  the  division- 
al line  Is  located  on  the  ground  by  the  chan- 
cellor. As  to  Norman  Clark,  it  is  said  that 
be  recognized  the  line  claimed  by  defendants 
by  his  conduct  as  saperintendent  of  the 
American  Marble  Company.  Suffice  it  to  say 
that  the  record  does  not  show  what  his  con- 
duct was  US  such  superintendent  and  no 
intendments  are  to  be  made  against  the  de- 
cree. 

Concerning  the  land  outside  the  defendants' 
paper  title,  which  they  claim  to  own,  the 
opinion  states: 

"Nor  is  it  found  that  each  prior  successive 
grantee,  in  writing  or  by  parol  agreement  or 
understanding,  transferred  to  Iiia  successor  his 
possession  of  said  land  without  the  calls  of  bis 
title  deeds,  accompanied  by  an  actual  delivery  of 
the  possession  of  tho  premises." 

Defendants  say  In  their  brief  for  reargu- 
ment  that  It  is  clear  from  this  statement  in 
the  opinion  that  the  court  does  not  have  in 
mind  the  facts  found  and  reported  reQicctlng 
the  subject-matter,  the  brief  stating: 

"It  appears  from  the  findings  that  npon  the 
giving  of  the  bond  to  Oliver  and  others  the 
American  Marble  Company  immediately  went 
Into  possession  of  this  property.  The  land  oc- 
cupied by  tliem  and  those  claiming  under  them, 
namely,  Burr,  was  inclosed  and  marked,  first 
with  a  fence  extending  some  400  feet  easterly 
from  the  west  line,  and,  continued  easterly,  by 
the  apple  tree,  the  row  of  large,  tall,  iron  pins, 
and  squaro-cut  marble  block  with  the  guy  pin. 
'the  wooden  post  and  the  marble  post;  each  of 
these  objects  being  found  by  the  chancellor  to 
have  been  placed  there  for  the  purpose  of  mark- 
ing the  boundary,  and  to  have  otarked  the  bound- 
ary from  1866  to  1885.  This  property  passed 
back  to  Mead  under  his  foreclosure,  with  this 
fenco  and  those  markers  inclosing  the  land  claim. 
Mead  transferred  it  to  Bardin,  and  Mead  point- 
ed out  to  Bardin  on  the  ground  the  exact  loca- 
tion of  the  land  which  he  was  projwaing  to  con- 
vey, and  delivered  possession  thereof." 

The  only  transfer  from  Mead  to  Bardin 
was  on  .July  1, 1873,  and  that  was  of  a  seven- 
sixteenths  Interest  In  the  property  within  the 
defendants'  title  deeds.  The  fact  asserted  In 
the  brief  that  Mead  pointed  out  to  Bardln 
on  the  ground  the  exact  location  of  the  land 
which  he  proposed  to  convey,  and  delivered 
possession  thereof.  Is  not  borne  out  by  the 
record;  there  is  no  finding  to  that  effect. 
The  facts  shown  by  the  record,  of  the  nature 
of  the  others  stated  within  the  foregoing  quo- 
tation from  defendants'  brief,  may  be  con- 
sidered as  fairly  warranting  an  inference 
that  the  possession  of  the  strip  of  land  out- 
side the  defendants'  title  deeds  was  by  parol 
transferred  by  each  of  the  grantees  to  bis 
successor,  accompanied  by  actual  delivery  of 
the  possession  of  the  premises,  and  yet  that 
is  not  sufficient;  for  the  decree  rendered 
shows  by  intendment  that  suc^  Inference  was 
not  drawn;  such  facts  not  found.  The  land. 
not  being  included  in  the  several  deeds,  an 
actual  transfer  of  possession  thereof  in  each 
instance  was  necessary  to  be  shown^  and 
found  as  a  fact    Without  such  fbct  being  «■- 


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167 


tabllslted,  tbe  possession  could  not  be  tacked 
In  making  ont  privity  of  estate  or  of  jws- 
sesslon  between  the  successive  disseisors  es- 
sential to  continuity  of  possession.  Winslow 
V.  Newell,  10  Vt.  184;  2  C.  J.  92 ;  Hames  v. 
Bernstein,  72  Ala.  546;  Illinois  Cent.  R.  Co. 
T.  Hatter,  207  111.  88,  69  N.  E.  751;  WIshart 
T.  McKnlRht,  178  Mass.  356,  69  N.  E.  1028, 
86  Am.  St.  Rq>.  488;  Id.,  184  Mass.  283,  68 
N.  E.  237;  Ridi  v.  Naflzlger,  255  111.  98,  99 
N.  E.  341. 

In  referring  to  what  the  opinion  says  np- 
m  the  snbject  of  guys,  namely,  that  the 
acts  of  placing  gays  on  the  land  now  own- 
ed  by  the  plaintiff  are  not  found  to  have 
been  under  a  daim  of  right,  defendants  say 
in  their  brief  for  reargument  that  the  court 
most  have  overlooked  some  facts  found  and 
reported  by  the  chancellor,  naming  as  among 
such  facts  that  these  guys  were  placed  upon 
the  "dark  lot"  (Fant  lot)  by  the  American 
Marble  Company  when  it  began  its  opera- 
tions (quoting  from  the  brief),  "not  only  under 
a  claim  of  right,  but  by  purchase  of  the  right 
to  80  place  them."  In  this  connection  refer- 
ence is  made  In  the  brief  to  Exhibits  38  and 
41,  and  to  article  96  of  the  findings.  Exhibit 
38  is  defendants'  plan;  and  Exhibit  41  is 
the  statement  In  writing  signed  b.v  Horage  O. 
Clark  in  connection  with  the  making  of  the 
Green  plan,  as  already  noticed.  Article  96 
contains  no  finding  that  any  of  tbe  guys  in 
question  were  placed  on  the  "Clark  lot,"  or 
maintained  there,  under  a  claim  of  right. 
The  writing  mentioned  is  copied  Into  the 
record  under  the  article  named,  but  it  is  no- 
where found  that  the  statement  in  the  writ- 
ing relating  to  "the  sale  of  the  right  to  at- 
tach three  guys  at  or  about  the  points  on  the 
10-rod  lot  as  now  in  use,"  or  the  somewhat 
similar  declaration  stated  on  Exhibit  38  to 
have  been  made  by  Mead,  was  true  in  fact 
Such  a  statement  by  Mead,  if  properly  shown, 
and  tbe  statement  in  the  writing  by  Horace 
6.  Clark,  though  evidence  against  them  re- 
spectively, were  not  evidence  against  their  co- 
tenants.  Blondin  v.  Brooks,  83  Vt.  472,  7G  Atl. 
184.  And  the  fact  of  such  a  purchase  Is  not 
found.  So  the  only  right,  if  any,  the  defend- 
ants have  to  place  and  maintain  their  guys 
on  the  plalntlfT's  land  rests  on  adverse  enjoy- 
ment of  tbe  easement  in  connection  with  the 
use  and  occupancy  of  the  land  now  owned  by 
them;  and  In  order  to  make  out  such  a  right 
it  was  necessary  for  defendants  to  prove  an 
uninterrupted  adverse  enjoyment  of  the  ease- 
ment for  a  period  of  15  years  by  themselves 
or  their  predecessors  in  title,  or  both  com- 
bined. Perrin  v.  Garfield,  37  Vt  304.  The 
three  Clarks  who,  with  Oliver,  were  the  ob- 
ligees in  the  bond  from  Mead  for  a  deed 
of  the  property  now  owned  by  the  defend- 
ants, were  associated  In  the  formation  and 
(qperation  of  the  American  Marble  Company. 
Horace  G.  Clark  was  president  of  the  com- 
pany, and  Norman  Clark  was  superintendent. 
During  all  the  time  that  company  was  In 
opexaUou  tbe  three  Clarks  were  also  Interest- 


ed In  the  property  now  owned  by  tbe  plain- 
tiff, either  as  obligees  In  the  bond  for  a  deed 
thereof  with  the  right  to  enter  thereon  to 
open,  develop,  and  work  all  marble  quarries 
on  said  premises,  or  as  tenants  in  common 
(after  the  deed  was  given),  tbe  owners  of 
the  major  part  of  the  land  conveyed.  The 
Clarks  being  Oius  interested  In  the  two  prop- 
erties severally,  and  in  the  operation  and 
management  of  the  company  named,  their  re- 
lations In  these  respects  were  Important  mat- 
ters for  consideration  in  deciding  whether  the 
use  of  the  property  now  owned  by  the  plain- 
tiff for  anchoring  or  hitching  guys  or  guy 
ropes  thereon  for  the  benefit  of  the  other 
property  was  adverse  or  permissive. 

"The  general  rule  is  that  the  enjoyment  of 
an  easement  of  this  character  is  presumed  to  be 
adverse  unless  something  appears  to  rebut  that 
presumption.  •  •  •  There  are  some  cases 
where  the  user  is  of  gatii  a  character  and  the 
circumstances  attending  it  are  such  aa  to  show 
that  it  was  a  mere  privileije  enjoyed  by  leave  of 
the  proprietor  of  the  servient  tenement,  express 
or  implied,  and  not  adverse";  and  in  some  ar- 
cnmstances  the  use  "would  be  presumed  to  be 
de  gratia,  or  with  the  express  or  implied  permis- 
sion of  the  proprietor  of  the  servient  tenement." 
Plimpton  V.  Converse,  44  Vt  158;  Perrin  v. 
Garfieltl,  cited  above;  Bradley  Pish  Oo.  v.  Dud- 
ley. 37  Conn.  136. 

In  the  case  last  cited  the  plaintiff  wos  i> 
voluntary  association  and  sued  as  such.  The- 
action  was  for  obstructing  an  alleged  right  of 
way  lending  from  the  plaintiff's  fish  place 
over  defendant's  land  to  a  public  highway. 
A  prescriptive  right  of  way  was  claimed. 
The  defendant  Insisted  that  the  user  upon 
the  conceded  facts  could  not  be  adverse,  be- 
cause the  owners  of  tbe  premises  over  which 
the  way  was  claimed  to  be  were  themselves 
during  the  entire  period  of  the  user  active 
memliers  of  the  plaintiff  association.  The 
court  stated  the  question  to  be  whether  one's 
own  land  may  be  subjected  to  an  easement 
in  favor  of  himself  and  another  as  joint 
owners  of  other  lands.  It  was  held  that  In 
such  circumstances  an  easement  may  exist, 
but  that  the  use  ought  more  than  In  ordinary 
cases,  to  appear  to  be  under  a  claim  of  right 
The  court  said  the  Interest  of  the  owners  of 
the  land  over  which  was  the  alleged  way  in 
the  business  of  their  associates  might  lead 
them  to  permit  a  passage  over  their  individ- 
ual lands,  and  on  tbe  question  of  fact  a  Jury 
might  think  the  use  should  be  referred  to  such 
permission  rather  than  to  a  claim  of  right, 
that  the  relation  In  which  the  parties  stand  to 
each  other  may  often  serve  to  Indicate  tbe 
character  of  the  use,  and  that  the  fact  that 
the  owner  of  the  land  over  which  the  way 
was  claimed  was  himself  a  member  of  the 
plaintiff  association  and  largely  Interested 
in  its  business  might  be,  and  was,  an  import- 
ant matter  to  be  weighed  In  deciding  whether 
the  use  was  adverse  or  permissive. 

On  April  27, 1872,  by  decree  of  foreclosure 
becoming  absolute,  Mead  again  became  tbe 
sole  owner  of  the  property  previously  owned 
and  operated  by  the  American  Marble  Com- 
pany, and  remained  such  owner  until  the  Ist 


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101  AXIANTIC  BBPORTEJB 


OX.  J. 


day  of  Jnly,  1873.  Doling  this  same  time  he 
was  a  cotenant  In  ownership  of  the  prc^ierty 
now  owned  by  the  plaintiff,  and  he  could  gain 
a  prescTlptlTe  right  of  easement  therein  only 
by  user  adyerse  to  his  cotenants.  Reed  t. 
West,  16  Gray  (Mass.)  283. 

[34]  If  a  cotenant  enter  upon  the  whole  or 
part  of  the  c<xnmon  property,  as  he  has  a 
legal  right  to  do,  the  law  presumes  that  he 
Intends  nothing  beyond  an  assertion  of  bis 
right.  In  order  to  sever  his  relation  as  co- 
tenant,  and  render  his  possession  adverse.  It 
must  be  affirmatively  shown  that  the  other 
cotenants  had  knowledge  of  his  claim  of  ex- 
clusive ownership,  accompanied  by  such  acts 
of  possession  as  were  not  only  inconsistent 
with,  but  in  exclusion  of,  the  continuing 
rights  of  the  other  cotenants,  and  such  as 
would  amount  to  an  ouster  as  between  land- 
lord and  tenant  Chandler  v.  Ricker,  49  Vt 
128;  Holley  v.  Hawley,  39  Vt  625,  94  Am. 
Dec.  350;  Roberts  v.  Morgan.  30  Vt  819; 
Leach  V.  Beattle,  33  Vt  195. 

[S5]  A  similar  relation  of  the  parties  was 
created  on  June  14,  1905,  when  defendant 
Eastman,  then  the  owner  of  the  property 
within  his  present  title  deeds,  took  a  convey- 
ance by  warranty  deed  of  one-third  Interest 
in  an  undivided  one-tenth  part  of  the  land 
within  the  plaintiff's  title  deeds,  and  on 
which  the  defendants'  guys  are  anchored  and 
fastened,  and  the  same  principles  of  law  are 
applicable.  Flirthermore,  the  record  before 
us  shows  that  the  aforesaid  Interest  in  the 
land  was  purchased  by  Eastman  for  a  valua- 
ble consideration  by  him  paid  therefor. 
There  is  nothing  In  the  case  indicating  that 
he  made  such  purchase  for  the  purpose  of 
quieting  his  own  title,  or  to  protect  him 
against  litigation.  Such  purchase  and  ao 
ceptance  of  the  warranty  deed  amounted  to 
an  acknowledgment  that  the  title  was  In  the 
common  owners,  the  interest  of  one  of  whom 
he  took  by  the  purchase,  and  It  was  evidence 
tending  to  show  that  the  previous  use  (by 
way  of  anchoring  and  fastening  guys  on  the 
land)  was  not  adverse,  or  under  a  claim  of 
right  Tracy  v.  Atherton,  86  Vt  608;  Per- 
rln  V.  Garfield,  dted  above. 

Regarding  such  guy  attachments  between 
the  time  when  Mead  sold  the  property  of  the 
dominant  estate  on  July  1, 1873,  and  the  time 
when  Eastman  became  a  tenant  in  common  in 
ownership  of  the  servient  estate  In  1905,  the 
findings  show  that  Green,  In  making  his  resur- 
vey  In  the  latter  part  of  July,  1873,  "located 
points  on  the  Clark  lot  where  derrick  guys 
were  fastened,  and  having  completed  his  sur^ 
vey,  he  made  a  scale  drawing  of  the  same, 
showing  In  detail  the  monuments  •  •  • 
and  the  guy  hitches  located  on  the  Clark  lot" ; 
that  In  1890  the  large  stone  with  the  guy 
attachment  In  the  Brown  and  Green  line  was 
visible ;  that  at  some  time  after  Eastman  be- 
gan operations  the  old  derrick  .was  replaced 
oy  a  new  one,  and  the  new  derrick  was  guyed 


at  Bnbstantlally  the  same  locatloas  as  0x9 
old  one  had  been,  excepting  that  there  were 
not  80  many  guys  on  the  new  mast  as  there 
had  been  on  the  old ;  and  that  defendants  are 
maintaining  upon  the  premises  three  guy  at- 
tachments which  are  north  of  the  so-called 
"pin  line." 

[3(]  It  Is  quite  evld^it  from  the  record 
that  the  proof  and  Inferences  toudilng  the 
question  of  the  easement  claimed  are  not  all 
one  way;  and  it  cannot  be  said,  as  matter 
of  law,  that  within  the  time  asserted  by  de- 
fendants there  was  an  uninterrupted  user 
and  enjoyment  of  the  easement  for  a  period 
of  16  years  under  a  claim  of  right  Assum- 
ing that  such  a  user  and  enjoyment  might 
reasonably  have  been  Inferred  from  the  facts 
reported,  it  must  be  intended  that  such  in- 
ference was  not  drawn;  for  otherwise  the 
decree  rendered  by  the  chancellor  was  not 
.warranted.  So  the  case  stands  In  this  re- 
spect that  facts  essential  to  the  establish- 
ment of  the  prescriptive  right  of  easeinent 
are  not  found;  and  thereon  the  burden  was 
with  the  defendants.  Barber  v.  Bailey,  86 
Vt  219,  84  AU.  008,  44  U  Rs  A,  (N.  S.)  98. 

The  defendants'  brief  in  support  of  tlie 
motion  for  reargument  has  been  carefully 
considered,  and  no  substantial  ground  for  the 
motion  is  found. 

The  motion  for  reargument  is  denied. 

Decree  affirmed,  and  cause  remanded. 


(to  N.  J.  Law.  637) 
NEW  YORK  &  NEW  JERSEY  WATER  CO. 

V.  STATE  BOARD  OF  ASSESSORS. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

Taxation  #=»36S— Public  Service  Corpora* 
TIONS— Franchise  Taxes— Rates. 
Voorhecs  Franchise  Tax  Act  (4  Comp.  St 
1910,  p.  5299)  i  4,  requires  the  owner  of  a 
franchise  first  to  make  return  of  the  gross  re- 
ceipts of  the  business,  and  also  reqaires  every 
owner  of  a  frandiise  having  part  of  its  trans- 
portation line  on  private  property  and  part  on 
public  streets  or  ploces  to  make  return  showing 
the  gross  receipts  for  transportation.  Beld,  that 
a  water  company  having  pipes  in  the  public 
streets  is  not  engaged  in  transportation  within 
the  act.  and  must  make  return  on  the  whole  of 
its  gross  receipts. 

Appeal  from  Supreme  Court 

Certiorari  by  the  New  York  &  New  Jersey 
Water  Company  against  the  State  Board  of 
Assessors  to  review  the  assessment  of  a  fran- 
chise tax  against  prosecutor's  property. 
From  a  Judgment  dismissing  the  writ  (88  N. 
J.  Law,  695.  97  AU.  153).  and  afflrmlng  the 
action  of  the  assessors,  prosecutor  appeals. 
Affirmed. 

Franklin  W.  Fort,  ot  Newark,  for  appel- 
lant Francis  H.  McOee,  of  Trenton,  and 
Herbert  Boggs,  Asst  Atty.  Gen.,  for  appellee. 

SWAYZB,  J.  One  point  raised  by  the  ap- 
pellants seems  to  require  uotlca  it  is  ar- 
gued that  the  franchise  tax  on  a  water  com- 


4ts»For  ottatr  oases  •••  sain*  topic  and  KBT-NUHBSR  in  all  Kar-Numtwrad  Dlgeita  aad  ladexaa 


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GROSS  V.  COMMERCIAL  CASUALTY  INS.  CO. 


169 


peny  under  flie  act  of  1903  amending  tbe 
Voorhees  PrancMse  Tax  Act  of  1900  (P.  L. 
1903,  p.  232;  C.  S.  p.  5298)  must  be  calculated 
only  upon  the  gross  receipt  for  transporta- 
tloD.  Hence,  it  is  said,  it  was  erroneona  to 
tax  the  prosecutor  on  tbe  whole  of  Its  gross 
receipts,  since  It  owned  tbe  water  it  trans- 
ported, and  to  calculate  the  tax  on  the  whole 
of  the  gross  receipts  was  to  calculate  it,  at 
least  In  part,  on  receipts  for  the  sale  of  wa- 
ter, as  distinguished  from  receipts  for  its 
mere  transportation.  The  tax  la  fixed  by  sec- 
tion 6  (C.  S.  5299,  pi.  631)  at  2  per  centum 
of  the  annual  gross  receipts  "as  aforesaid." 
The  reference  Is  to  section  4,  and  the  diffi- 
culty arises  out  of  the  fact  that  by  that  sec- 
tion the  owner  of  a  franchise  Is  first  requir- 
ed to  make  return  of  the  gross  receipts  of 
the  business,  and  later  in  the  same  section 
every  owner  of  a  franchise  having  part  of  its 
transportation  line  on  private  property  and 
part  on  public  streets  or  places  is  required  to 
make  return  showing  the  gross  receipts  for 
transportation.  The  appellants  assume  that 
a  water  company  Is  within  the  last  provision. 
The  history  of  the  legislation  shows  the  fal- 
lacy of  this  assumption.  The  corresponding 
part  of  section  4  as  originally  enacted  in 
1900  (P.  L.  503)  appUed  only  to  oil  or  pipe 
Hoe  companies  having  part  of  their  trans- 
portation line  in  this  state  and  part  in  an- 
other state  and  to  their  receipts  for  trans- 
portation of  oil  or  petroleum.  At  that  time 
oil  and  pipe  line  companies  transporting  oil 
or  petroleum  having  part  of  their  lines  in 
this  state  and  part  in  another  state  were 
transportation  companies  called  transit  ccwn- 
panles,  and  were  soon  after  treated  as  com- 
mon carriers  by  the  act  of  Congress  known  as 
the  Hepburn  Act  (Act  June  29,  1906,  c.  3591, 
34  Stat  584).  This  view  has  recently  been 
sustained  by  the  Supreme  Court  of  tbe  Unit- 
ed States.  The  Pipe  IJne  Cases,  234  U.  B. 
548,  34  Sup.  Ct  956,  58  U  Ed.  1459. 

The  Legislature  in  the  act  of  1903  dealt 
with  two  classes  of  owners  of  franchises,  one 
of  which  was  required  to  make  a  return  of 
the  gross  receipts  of  the  business,  the  other 
a  return  of  gross  receipts  for  transportation. 
Probably  all  owners  of  franchises  affected  by 
the  act— L  e.,  those  having  the  right  to  use  or 
occupy,  and  occupying  the  streets  and  public 
places— used  the  streets  for  the  transporta- 
tion of  their  product.  Such  are  the  owners 
of  gas  plants,  electric  light  plants,  telegraph 
and  telephone  plants,  steam  heating  plants. 
If  all  these  are  to  be  dealt  with  as  transpor- 
tation companies  under  the  later  clause, 
there  will  be  few  or  none  left  to  make  return 
On  the  whole  of  their  gross  receipts  under 
the  earlier  clause.  What  was  meant  by  the 
later  clause  was  to  tax  the  owners  of  fran- 
chises whose  business  was  transportation, 
like  the  New  York  Transit  Company  and  the 
National  Transit  Company.  Others  whose 
business  was  the  sale  of  their  commodities  or 


services,  gas,  electric  current,  electric  com- 
munication, steam  or  water,  with  whom  the 
means  of  transportation — wires  or  pipes — 
were  only  the  necessary  means  of  delivering 
their  commodities;  were  taxable  on  their  total 
gross  receipts  under  tbe  earlier  clause.  This 
disposes  of  the  objection  to  the  view  of  the 
Supreme  Court  that  the  error  In  apportion- 
ment affects  only  the  municipalities,  and  they 
do  not  complain.  It  disposes  also  of  the 
contention  that  the  apportionment  should  be 
made  not  according  to  the  length  of  the  Une, 
whether  there  was  one  pipe  or  more,  but  ac- 
cording to  the  number  of  feet  of  pipe.  There 
is  no  apportionment  necessary  in  ascertain- 
ing the  amount  of  the  tax,  in  which  alone 
the  appellants  are  Interested.  If  there  has 
been  error  in  apportioning  the  amount  amcaig 
the  taxing  districts,  the  appellants  are  not 
injured  thereby. 

As  to  other  points  raised,  we  have  nothing 
to  add  to  what  was  said  by  the  Supreme 
Court 

We  find  no  error,  and  the  Judgment  is  af- 
firmed, with  costs. 


(80  N.  J.  L»w,  6»4) 
GROSS  V.  COMMERCIAL  CASUALTY  INS. 
CO.  OF  NEWARK.    (No.  110.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(ByTUihug  hy  the  Court.) 
INSTTKANCI!    ©=»524 — INDEMNITY    InBTTBANCB— 

CoNSTBrcnoN  of  PotlCT— Disabiutt. 
An  insnrance  company  by  its  policy  con- 
tracted to  pay  the  assured  a  weekly  indemnity 
so  long  as  he  should  be  totally  disabled  and 
wholly  and  continuonsly  prevented  from  per- 
forming any  and  every  idnd  of  bnsineBs  relating 
to  his  occupati(Mi.  The  business  of  the  assured 
was  that  of  a  traveling  salesman,  which  re- 
quired a  constant  use  of  his  feet,  and  during  the 
term  of  the  policy  he  was  afflicted  with  a  foot 
ailment  which  entirely  prevented  him  from  trav- 
eling and  soliciting  business,  although  during 
part  of  the  term  for  which  be  claimed  indemnity 
be  was  able  to  go  to  the  office  of  his  employer 
and  conduct  some  business  by  writing  letters  and 
the  use  of  the  telephone.  The  trial  court  in- 
structed the  jury  that  the  reasonable  construc- 
tion to  be  put  upon  the  language  used  was,  not 
that  he  must  be  so  disabled  as  to  prevent  him 
from  doing  anything  whatsoever  pertaining  to 
his  occupation,  but  that,  if  he  be  so  disabled 
as  to  prevent  him  from  doing  any  and  every 
kind  of  business  pertaining  to  his  occupation,  he 
was  entitled  to  recover.  Held,  iJiat  sncb  an  in- 
struction was  not  error. 

[Ed.  Note.— For  other  cases,  see  Insurance. 
Cent.  Dig,  §  1310.] 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  Rudolph  Gross  agalu.st  the  Com- 
mercial Casualty  Insurance  Company  of  New- 
ark, N.  J.  Judgment  for  plaintiff,  and  de- 
fendant appeals.    Affirmed. 

William  E.  Holmwood,  of  Newark,  and  Ed- 
ward L.  Katzenbacb,  of  Trenton,  for  api>el- 
lant.  Jacob  L.  Newman,  of  Newark,  for  ap- 
pellee. 


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101  ATLANTIC  REPORTER 


(M.l 


BBRGBN,  J.  The  plaintiff  brought  hU  ac- 
tion to  recover  on  a  policy  Issued  to  him  by 
the  appellant,  assiu-ing  him  certain  payments 
In  case  of  death  or  disability  resulting  from 
bodily  Injuries  effected  solely  through  ac- 
cidental means,  and  It  provided  that  If,  by 
reason  of  disease  or  Illness  contracted  during 
the  term  of  this  Insurance  by  the  assured,  he 
be  totally  disabled,  and  "wholly  and  contin- 
uously prevented  from  performing  any  and 
every  kind  of  business  pertaining  to  his  oc- 
cupation and  necessarily  confined  in  the 
house,"  he  should  be  paid  as  for  total  dis- 
ability, "and  if,  Immediately  following  such 
a  period  of  total  disability  and  conQnement 
in  the  house,  he  shall  be  totally  disabled  and 
wholly  and  continuously  prevented  from  per- 
forming any  and  every  Idnd  of  business  per- 
taining to  his  occupation,  but  Is  not  necessa- 
rily confined  In  the  house,  three-fourths  of 
said  amount  per  week  shall  be  paid  to  the 
assured." 

The  plaintiff  recovered  a  Judgment,  from 
which  the  defendant  has  appealed.  This  ap- 
peal presents  two  questions:  First,  is  the 
plaintiff  entitled  to  recover?  and,  second.  If 
entitled  to  recover,  was  the  Jury  improperly 
instructed  as  to  the  extent  of  disability  re- 
quired by  the  policy? 

The  first  was  raised  by  motions  to  nonsuit 
and  for  a  direction  in  favor  of  the  defendant, 
and  second  by  an  objection  noted  to  the  in- 
structions given  to  the  Jurj'.  The  solution  of 
the  first  question  favorably  to  the  appellant 
depends  upon  a  determination  that  the  policy 
was  invalidated  because  of  a  breach  by  the 
plaintiff  of  certain  written  warranties  made 
by  him,  and  made  a  psLtt  of  the  policy  which 
was  issued  on  October  11,  1911,  and  contain- 
ed among  other  warranties  the  following: 

"I  have  not  been  disabled  nor  have  I  received 
any  medical  or  surreal  attention  during  the  past 
five  years  except  as  follows:  In  1911  for  eczema, 
lasting  fonr  months." 

And: 

"My  hftbits  of  life  are  correct  and  temperate : 
my  hearing  and  vision  are  not  impaired;  I  am 
in  sound  condition  mentally  and  physically,  ex- 
cept as  herein  stated:    No  exceptions." 

This  policy  expired  October  1,  1912,  and 
was  renewed  each  year  thereafter,  the  last 
being  from  October  1, 1914,  to  October  1, 1915. 
The  renewals  were  manifested  by  a  certifi- 
cate continuing  in  force  the  original  policy — 
"provided  the  statement  in  the  schedule  of  war- 
ranties in  the  original  contracts  are  true  on 
this  date  and  that  nothing  exists  on  the  date 
hrreof  to  render  the  hazard  of  the  risk  greater 
than  or  different  than  that  shown  by  such  sched- 
ule." 

The  testimony  permits  an  Inference: 
That  previous  to  the  issuing  of  the  last  certifi- 
rnte  the  plaintiff  had  called  upon  a  physician  be- 
cause,  as  plaintiff  testified,   he  "got  so  easily 
tired  in  my  feet.     I  went  down  tiiere  to  con-  I 
)<ult  bfoause  he  once  treated  me  before,  about  a 
few  years  ago.    •    *    *    I  went  down  there,  and 
he  loolccd  me  over.     He  did  not  say  anything. 
He  said.  'You  go  borne  and  take  a  little  more 
care  and  take  a  little  rest  and  rub  j-oiir  feet  - 
with  alcoboL'    Q.  lie  did  not  tell  you  anything ' 


was  the  matter  with  yon?  A.  No.  Q.  And  you 
had  no  troable  after  that  until  this  last  illness? 
A.  Yes." 

This  he  testified  happened  six  montlu  or  a 
year  prior  to  the  last  renewal.  As  this 
branch  of  the  case  rests  upon  the  motions  to 
nonsuit  and  for  direction  of  a  verdict,  the 
foregoing  testimony  must  be  taken  as  true, 
and  the  question  is  whether  this  testimony 
conclusively  established  the  fact  that  when 
the  lost  renewal  certificate  was  issued  the 
plaintlfTs  warranty  that  he  had  "not  t>een 
disabled  nor  have  I  received  medical  or  sur- 
gical attention  during  the  past  five  years" 
was  untrue,  and  therefore  a  breach  of  the 
warranty  within  the  meaning  of  the  policy, 
and  also  V(  bother  his  condition  made  "the 
hazard  of  the  risk  different  or  greater  tlian 
that  shown  by  such  schedule."  The  plain- 
tiff's business  required  him  to  be  on  his  feet 
most  of  the  time,  and  finding  that  he  tired 
easily,  he  went  to  the  physician  and  repre- 
sented his  condition,  but  was  not  Informed 
by  him  that  he  had  any  illness;  was  simply 
told  to  bathe  his  feet  in  alcohol.  We  do  not 
consider  this  receiving  medical  attention  of 
such  a  character  as  to  require  the  plaintiff 
to  state  it  to  the  defendant  on  the  renewal, 
or  that  not  doing  so  would  invalidate  the 
policy.  Neither  the  physician  nor  the  plain- 
tiff bad  any  idea  that  the  symptoms  might  be 
an  indication  of  the  allm«it  which  subse- 
quently developed,  or  that  it  was  a  disease 
or  sickness.  Advising  one  to  l>attae  his  feet 
in  alcohol  simply  because  they  are  tired  la 
not  conclusive  evidence  that  the  plaintiff  bad 
reo^red  medical  or  surgical  attention  suffi- 
cient to  forfeit  the  poUcy  because  it  had  not 
been  made  known  to  the  defendant  any  more 
than  if  the  ailment  was  temporary,  such  as 
an  ordinary  cold.  Whether  the  plaintiff  had 
knowledge  that  his  condition  was  such  that 
the  hazard  of  the  risk  was  different  or  great- 
er than  that  shown  by  the  schedule  of  waiv 
ranties  was  a  Jury  question.  The  court  sub- 
mitted to  the  Jury  the  question  whether  the 
ailment  was  of  so  serious  a  character  as  to 
permanently  affect  bis  health  and  to  make 
him  a  less  desirable  risk,  and  directed  them 
that  if  they  found  in  tbe  affirmative  then 
there  could  be  no  recovery.  It  was  not  error 
for  the  court  to  refuse  to  nonsuit,  or  to  di- 
rect for  tbe  defendant,  for  the  reasons  urged. 

The  second  branch  of  the  case  depends 
upon  the  construction  to  l>e  given  to  the  fol- 
lowing part  of  the  policy: 

"If,  immediately  following  such  a  period  of 
total  disability  and  confinement  in  the  hovse. 
he  shall  be  totally  disabled  and  wholly  and  con- 
tinuously prevented  from  performing  any  and  ev- 
ery kind  of  business  pertaining  to  his  occupa- 
tion, but  is  not  necessarily  confined  to  the  house, 
three-fourths  of  the  said  amount  for  the  week 
will  be  paid  to  the  assured." 

The  trial  court  Instructed  the  Jury  that 
the  reasonable  construction  to  be  put  upon  the 
language  used  was,  not  that  be  must  be  so 
disabled  as  to  prevent  him  from  doing  any- 
thing whatsoever  pertaining  to  his  occupa- 


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GRILLO  V.  THOMAS  A.  EDISON 


171 


tlon,  but  that,  If  he  be  so  disabled  as  to  pre- 
vent him  from  doing  any  and  every  kind  of 
business  pertaining  to  his  occupation,  he  was 
entitled  to  recover. 

The  proofs  show  that  the  occupation  of  the 
plaintiff  was  traveling  for  his  employer  from 
Newark,  N.  J.,  to  New  York,  Boston,  PhUa- 
delphla,  and  other  places  to  sell  and  buy 
leather  and  hides  and  attend  to  the  ship- 
ments; that  he  sometimes  did  office  work, 
calling  people  on  the  telephone  and  dictating 
letters  concerning  business  growing  out  of 
his  traveling;  that  from  January  4,  1915,  to 
the  15th  of  October  following  he  was  not  able 
to  do  any  traveling  because  of  a  severe  and 
persistent  aliment  affecting  his  feet;  they 
were  so  siwoUen  that  he  could  not  wear  his 
shoes  until  nearly  the  end  of  the  period, 
when  he  was  able  to  wear  a  special  shoe  made 
for  his  use;  he  would  go  to  the  office  with 
an  automobile,  and  while  there  occasionally 
dictated  a  letter,  the  proofs  showing  that 
during  the  entire  period  he  dictated  about  80 
letters,  but  that  he  did  not  do  his  regular 
work.  TVe  think  that  the  instruction  of  the 
trial  court  was  right.  The  indemnity  con- 
tained in  the  policy  included  any  and  every 
kind  of  wotk  appertaining  to  his  occupation, 
not  a  part  of  his  work,  but  any  and  every 
kind,  and  the  policy  makes  the  distlnctiou  be- 
tween the  total  disability  which  confined  him 
to  the  house,  and  the  disability  to  do  every 
kind  of  .work  pertaining  to  his  occupation 
after  he  was  able  to  go  out  of  the  house,  and 
provided  a  lower  rate  for  the  latter  disability. 

In  Young  v.  Travelers'  Ins.  Co.,  80  Me.  244, 
13  AtL  806,  the  Supreme  Court  of  Maine  dealt 
•with  a  policy  which  had  in  it  this  clause : 

"And  wholly  disable  and  prevent  him  from  the 
prosecution  of  any  and  every  kind  of  business 
pertaining  to  the  occupation  under  which  he  is 
insnred." 

In  that  case  the  trial  court  Instructed  the 
Jury  that  the  meaning  of  this  language  was 
not  that  he  must  be  so  disabled  as  to  prevent 
him  from  doing  anything  whatsoever  per- 
taining to  his  occupation  or  to  any  part  of 
his  business,  but  that  he  must  be  so  disabled 
aa  to  prevent  him  from  doing  any  and  every 
kind  of  business  pertaining  to  his  occupation, 
and  that  there  was  a  difference  between  being 
able  to  perform  any  part  and  any  and  every 
kind  of  business,  and  the  appellate  court  sus- 
tained this  instruction  to  the  Jury : 

"If  the  prosecution  of  the  business  required 
him  to  do  several  acta  and  perform  several  kinds 
of  labor,  and  he  was  able  to  do  and  perform  only 
one,  he  was  as  effectually  disabled  from  per- 
forming his  business  as  if  he  could  do  nothing 
required  to  be  done." 

In  Hooper  v.  Accidental  Ina  Co.,  5  Hurl- 
stone  &  Norman,  546,  where  the  plaintiff  was 
an  attorney,  he  sprained  his  foot  while  rid- 
ing on  horseback,  and  the  claim  by  the  In- 
snrance  company  was  that  it  did  not  wholly 
disable  him.  In  that  case  the  covenant  was 
that,  if  the  Injury  be  of  "so  serious  a  nature 
as  to  .wholly  disable  him  from  following  his 


usual  business,  occupation,  or  pursuits,"  the 
company  would  pay,  and  the  court  held : 

"If  a  man  is  so  incapacitated  from  following 
bis  usual  business,  occupation,  or  pursuits  as  to 
be  unable  to  do  so,  he  is  wholly  disabled  from 
following  them.  His  usual  business  and  occupa- 
tion embrace  the  whole  scope  and  compass  of  his 
mode  of  getting  his  livelihood.  •  •  •  They 
intended  that  when  the  insured  was  wholly  in- 
capable of  performing  a  very  considerable  part 
of  his  usual  business  he  should  receive  a  com- 
pensation in  respect  of  that  disablement" 

In  construing  a  policy  we  should  adopt  the 
meaning  of  the  words  used  most  advan- 
tageous to  the  assured,  and  In  the  present 
case  the  indemnity  runs  during  such  period 
as  the  insured  Is  disabled  to  perform  any  and 
every  kind  of  his  occupation.  The  proofs 
show  sufficiently  for  the  Jury  to  so  infer  that 
the  principal  part  of  the  occupation  of  the 
insured  was  traveling  in  which  the  use  of 
his  feet  were  absolutely  necessary,  and  be- 
cause of  his  peculiar  illne.ss  he  was  disabled 
from  performing  tlie  principal  and  major  part 
of  his  occupation. 

We  see  no  error  in  this  record,  and  think 
the  Judgment  should  be  affirmed. 


90  N.  J.  lav.  680) 
GRILLO  et  al.  v.  THOMiAS  A.  EDISON,  Inc., 

et  al.    (No.  no.) 
(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  IS.  1917.) 

1.  Triai,  ®=»178— Motion  to  Dibect  Veb- 
DicT— Question  Pbesented. 

A  motion  to  direct  a  verdict  presents  only 
the  question  of  defendant's  liability,  and  does 
not  stir  the  question  of  the  measure  of  dam- 
ages. 

(Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Pig.  S$  401^03.] 

2.  Waters  and  Wateb  Goubsgs  ®=96S — 
Pollution— Manufactubimq  Plants— Con - 
tbibutino  Caubb. 

Where  substances  put  into  a  stream  by  de- 
fendant manufacturing  company  created  a  con- 
dition injuring  plaintiffs  health  and  property, 
the  fact  that  sulphuric  acid,  already  in  the 
stream,  contributed  to  the  result  did  not  ab- 
solve the  defendant,  and  it  was  immaterial 
whether  such  acid  was  a  natural  ingredient  of 
the  stream,  or  was  artificially  introduced  by 
strangers  to  the  suit 

W^Ed.  Note.— For  other  cases,  see  Waters  and 
ater  Courses,  Cent.  Dig.  {  60.] 

Appeal  from  Supreme  Court. 

Action  by  Salvatore  Grlllo  and  others 
against  Thomas  A.  Edison,  Incorporated,  and 
others.  Judgment  for  plaintiffs,  and  defend- 
ants appeal.    Affirmed. 

In  the  Supreme  Court  the  following  per 
curiam  was  filed: 

[I]  "This  case,  which  was  tried  before  the 
district  court  without  a  jury,  resulted  in  a 
judgmenb  against  the  defendant,  Thomas  A. 
Edison,  Incorporated.  The  trial  court  found 
from  the  proofs  that  substance  flowing  from 
this  defendant's  plant  through  its  artificially 
constructed  channel  into  the  stream  created  a 
condition  that  was  injurious  to  health  and 
property.  Touching  this  finding,  the  appellant 
says:    'The  learned  judge's  finding  of  fact  is 


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101  ATIANTIO  REPORTER 


(N.J. 


correct,  but  his  conclusion  of  law  is  erroneous.* 
The  legal  ruling  of  the  trial  court  that  is  com- 
l)Iained  of  is  the  denial  of  the  appellant's  mo- 
tion to  direct  a  verdict  in  its  favor.  This  mo- 
tion does  not  stir  the  question  of  the  measure  of 
damages,  and,  its  denial  presenting  only  the 
question  of  the  liability  of  the  defendant,  the 
motion  was  properly  denied. 

[2]  ''The  substances  put  into  the  stream  by 
the  defendant  were  the  proximate  and  efficient 
cause  of  the  injury  to  tiie  plaintiff.  Tlie  cir- 
cumstance that  the  sulphuric  acid  already  in 
the  stream  contributed  to  this  result  does  not 
absolve  the  defendant;  and  tliia  is  equally  true 
whether  the  acid  was  a  natural  ingredient  of 
the  stream  or  was  artificially  introduced  by 
strangers  to  this  suit. 

"Weidman  Silk  Dyeing  Co.  v.  East  Jersey 
Water  Oo.  (Sup.)  91  Atl.  p.  338,  was  an  action 
for  the  unlawful  abstraction  of  <vater  from  a 
stream.  The  contention  there,  as  here,  was  that 
the  injury  was  created  in  part  by  the  acts  of 
others  than  the  defendant,  in  that  they  polluted 
the  water.  In  that  case,  in  declining  to  give 
the  desired  force  to  this  argument,  we  said: 
'The  abstraction  was  a  direct  and  proximate 
cause  of  the  injury,  though  alone  it  would  not 
have  caused  it'  (citing  Newman  v.  Fowler,  37 
N.  J.  Law,  p.  88 :  Matthews  v.  D.  L.  &  W.  R. 
R.  Co.,  56  N.  J.  I.aw,  p.  34,  27  Atl.  919,  22  L. 
R.  A.  261,  and  referring  to  38  Cyc.  488). 

"The  subsequent  reversal  of  the  judgment  (88 
N.  J.  TjBlv,  273,  96  Atl.  p.  60)  was  upon  a  total- 
ly different  ground,  and  in  the  case  upon  which 
such  reversal  rested,  viz.  Auger  &  Simon,  etc.,  v. 
East  Jersey  Water  Co.,  88  N.  J.  Law,  273,  96 
Atl.  p.  60,  it  was  said  by  Mr.  Justice  Bergen 
speaking  for  the  Court  of  Elrrors  and  Appeals: 
'It  is  no  answer  to  an  action  •  •  •  for  a 
nuisance  to  show  that  a  great  manjr  others  are 
committing  the  same  species  of  nuisance  upon 
the  stream,  for,  if  the  defendant's  acts  apprecia- 
bly add  to  the  pollution,  they  create  a  nuisance.' 
The  diflference  between  a  nuisance  created  by  the 
concurrence  of  pollution  of  the  stream  and  the 
abstraction  of  its  waters  does  not  differ  in  prin- 
ciple frdra  a  nuisance  created  by  a  chemical 
reaction  between  a  substance  already  in  the 
stream  and  one  placed  therein  by  the  act  of  the 
defendant.  Upon  the  question,  therefore,  of 
liability,  which  is  all  that  wag  presented  by  the 
motion  to  direct  a  verdict,  the  trial  court  com- 
mitted no  error  in  the  denial  of  such  motion. 

"The  question  of  the  measure  of  damages  is 
not  before  us  upon  an  appeal  from  this  ruling. 
The  judgment  of  the  district  court  is  affirmed, 
with  costs." 

McCarter  &  English,  of  Newark,  for  appel- 
lants. John  Larkln  Hughes,  of  Passaic,  for 
appellees. 

PER  CURIAM.  The  judgment  tinder  re- 
view will  be  afflrmnd  for  the  reasons  set  forth 
in  the  opinion  of  the  Supreme  Court. 


(87  N.  J.  Bq.  4U) 

CONDIT  BREF  &  PROVISION  CO.  et  al.  T. 

ARLISS  et  al.    (No.  42/80.) 

(Court  of  Chancery  of  New  Jersey. 

May  22,  1917.) 

PRAUDtTLRNT  CONVEYANCES  ®=20C{2)  —  "EX- 
ISTING Cbeditobs" — Settino  .\siue. 
Defendant  was  indebted  to  plaintiff  on  run- 
ning account  when  he  made  a  voluntary  con- 
veyance to  his  wife.  Ho  continued  to  buy  and 
items  due  at  time  of  conveyance  were  satisfipd 
by  payments  made,  but  account  was  never  paid 
in  full,  but  up  to  time  of  judgment  the  balance 
due  was  always  great  as  debt  at  time  of  con- 


veyance. Beld,  that  plaintiff  was  an  "exist- 
ing," and  not  a  subsequent,  creditor,  and  entitled 
to  set  conveyance  aside. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  f  630. 

EV>r  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Existing  Creditors.] 

Stilt  to  set  aside  a  voluntary  conveyance 
by  the  Condit  Be^  &  Provision  Company 
and  others  against  Simeon  W.  Arllss  and 
others.     Judgment  for  plaintiffs. 

Herbert  J.  Hannoch,  of  Newarlc,  for  com- 
plainants. Hugo  Woerner,  of  Newark,  for 
defendants. 

STEVENS,  V.  C.  This  Is  a  creditor's  biU 
to  set  aside  a  voluntary  conveyance. 

In  March,  1915,  the  defendant  Arllss,  a  re- 
tail butcher,  made  such  a  conveyance  to  his 
wife.  At  the  time  he  made  It,  he  was  in- 
debted to  the  complainants,  wholesale  butch- 
ers, on  a  running  account.  He  continued  to 
buy  from  them  for  several  months  thereaft- 
er, and,  from  time  to  time,  made  payments 
on  account.  According  to  the  rule  relating 
to  appropriation  of  payments,  ,the  debit 
Items  of  the  account,  as  they  stood  when  the 
conveyance  was  made,  were  satisfied  by  tlie 
payments  made  subsequently,  but  the  ac- 
count was  never  paid  in  full;  and  It  was 
not  reduced  to  an  amount  less  than  that 
wUch  was  owing  at  the  time  of  the  convey- 
ance. 

The  question  Is  whether  complainauts 
were  existing  creditors,  within  the  rule  of 
Haston  v.  Castner,  31  N.  J.  Eq.  703.  This 
question  was  answered  In  the  afflnnatlve  hy 
Howell,  V.  C,  In  Crane  v.  Brewer,  73  N. 
J.  Eq.  558,  68  Atl.  78.  The  argumwit  now 
made  Is  that  the  decision  does  not  notice 
and  does  not  accord  with  that  of  the  Court 
of  Errors  in  Severs  v.  Dodson,  53  N.  J.  Eq. 
634,  84  Atl.  7,  51  Am.  St  Rep.  641.  I  should 
hardly  feel  at  liberty  to  disregard  Crane  v. 
Brewer,  but  I  may  say  that  it  seems  to  me 
to  be  rightly  decided.  Haston  r.  Castner 
holds  that  a  rolnntary  conveyance  Is  pre- 
sumed to  be  fraudulent  as  to  debts  antece- 
dently due ;  and  that,  as  a  rule  of  evidence, 
no  drcnmstances  will  be  permitted  to  repel 
this  legal  presiunption.  Severs  y.  Dodson 
decides  that  an  accommodation  Indorser  of  a 
promissory  note  Is  not  a  debtor  within  the 
meaning  of  the  rule. 

In  the  case  In  hand  the  complainants  were 
creditors  when  the  conveyance  was  made, 
and  they  continued  to  be,  up  to  the  entry  of 
judgment  There  was  always,  during  the 
intervening  period,  a  debt  owing  as  great 
as  that  which  existed  at  the  time  defendant 
conveyed.  The  debt.  It  is  true,  was  from 
time  to  time  Increased  and  diminished,  but 
it  continued  to  be  one  debt,  contained  in  one 
accoimt  and  constituting  a  single  cause  of 
action.  The  situation  was  similar  to  that 
appearing  In  Whittington  v.  Jennings,  6  Sim. 
493,  a  case  in  which  a  voluntary  assignment. 


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173 


made  nnder  like  drcnmstances,  was  avoided. 
The  case  In  hand  differs  from  Severs  v. 
Dodson  In  the  controlling  circumstance  that 
there  there  was  a  contingent  liability  and  not 
an  existing  debt  Beasley,  C.  J.,  said  that 
the  conclusive  presumption  only  obtained 
when  the  conveyance  was  made  by  one  in- 
dehted.  In  the  case  in  hand  it  was  so  made. 
It  was  therefore  voidable  at  the  time.  As 
the  debt  persisted  until  judgment,  although 
the  Items  of  which  it  was  composed  under- 
went change,  it  would  seem  more  reasonable 
to  apply  the  rule  of  Haston  v.  Castner  than 
that  of  Severs  v.  Dodson.  Tliat,  it  seems 
to  me,  would  be  putting  the  rule  as  to  tip- 
plication  of  payments  to  a  very  unwarrant- 
able use.  It  is  argued  that  the  partial  pay- 
ments were  made  with  reference  to  particu- 
lar Items.  I  fail  to  see  that  It  makes  any 
difference,  as  far  as  the  present  question  la 
concerned,  whether  the  payments  exactly 
eqnal  the  items  or  overpay  them.  In  either 
case  a  part  of  the  whole  debt  remains. 


(t7  N.  J.  Bq.  ES4) 

WILSON  et  aL  v.  VOGBU    (No,  42/706.) 

(Conrt  of  Chancery  of  New  Jersey.    May  19, 
1917.) 

1.  Vesdob  and  Purchaser  «=»129(4)— Sutfi- 
ciB.NCY  OF  TCiTLE— Questions  of  Law- 
Wills. 

A  will  devised  testatrix's  property  to  two 
danrtters  to  be  divided  equally  between  them, 
share  and  Bhare  alilie,  and  in  case  either  die 
without  issue,  and  intestate,  her  share  to  go  to 
the  survivor.  The  devisees  tendered  a  deed  sign- 
ed by  them  together  with  releases  of  their  pow- 
ers of  disposition.  Held,  that  there  was  a  doubt 
u  to  whether  the  devise  created  a  fee  simple 
defeasible  upon  the  first  taker  dying  without 
issue  and_  intestate  whereupon  the  executory 
devisee  miRht  transfer  her  interest  and  release 
her  testamentary  power  of  disposal,  or  whether 
it  created  a  life  estate  with  power  of  testamenta- 
ry disposition,  and  hence  specific  performance 
could  not  be  decreed. 

[Ed.  Note. — For  other  cases,  see  Vendor  and 
Purchaser,  Cent.  Dig.  g  241.] 

2.  EQurrv  «=>.39(2)— Questions  of  Law. 

If  a  doubt  raised  depends  upon  a  question 
of  the  application  of  general  principles  of  law, 
equity  will  decide  the  question  in  a  suit  for 
specific  performance,  unless  the  question  is  not 
settled  by  previous  decisions,  or  If  there  is  dicta 
indicnting  that  courts  might  differ. 
_[Ed.  Note. — For  other  cases,  see  Equitr,  Cent. 
Dig.  fi  1W-109,  114.] 

Suit  for  spei'iSc  performance  by  Edna  S. 
Wilson  and  otiiers  against  George  U  Vogel 
to  determine  the  validity  of  a  tltla  Bill  dis- 
missed. 

IMker  &  Hiker,  of  Newark,  for  complain- 
ants. Arthur  R.  Denmaii,  of  Newarii,  for  de- 
fendant 

LANE,  V.  C.  This  is  the  familiar  friendly 
suit  in  specific  performance  to  determine  the 
validity  of  a  title.  The  conclusions  1  have 
reached  render  It  unnecessary  for  me  to 
express  an  opinion  as  to  whether  the  title  Is 


valid  or  not  Complainants  derive  their  title 
from  Esther  C.  Shelby,  their  mother.  The 
will,  so  far  as  material,  provides  as  follows: 
"I  give,  devise  and  bequeath  to  my  said 
daughter  Edna  L.  and  my  said  danshter  Mabel 
B.,  their  heirs  and  assigns  to  be  divided  between 
them,  share  and  share  alike  (the  property  in 
question  and  also  certain  personal  property). 
*  *  *  In  case  either  of  my  said  daughters 
dies  without  issue,  and  intestate,  her  share  in 
said  house  lots  and  stable  and  contents  thereof 
shall  go  to  the  survivor." 

[1]  A  deed  has  been  tendered,  signed  by 
Edna  L.  Wilson  and  Mabel  E.  Beleases  of 
the  powers  of  'disix>8ition  have  also  been 
duly  executed  by  them  and  their  husbands  to 
each  other  and  tendered.  The  sole  question 
Is  whether  the  complainants  can,  with  the 
aid  of  such  releases,  convey  an  estate  In  fee 
simple  to  the  defendant  The  residue  of  the 
estate  is-  to  be  held  by  trustees  not  only  for 
the  benefit  of  the  two  daughters  and  their 
issue,  but  also  a  son. 

[2]  The  rule  appears  to  be  settled  that  if  a 
doubt  raised  depends  upon  a  question  involv- 
ing the  application  of  general  principles  of 
law,  it  la  the  practice  of  courts  of  equity  to 
decide  the  point  of  law  In  a  suit  for  specific 
performance,  but  that  In  such  cases  specific 
performance  should  not  be  decreed  If  there 
is  reasonable  ground  for  saying  that  the 
question  la  not  settled  by  previous  dedslons, 
or  if  there  are  dicta  of  weight  which  indi- 
cates that  courts  might  6ltter  as  to  the  de- 
termiuatlon  of  the  iwint  Involved,  and  that 
one  of  the  categories  in  which  the  courts 
decline  to  compel  specific  performance  la 
where  the  doubt  as  to  the  vendor's  power  to 
convey  a  good  title  arises  in  ascertaining  the 
true  construction  and  legal  operation  of 
some  ill-expressed  aiud  inartificial  Instrument. 
This  Is  almost  precisely  the  language  of  Vice 
Chancellor  Grey  in  Richards  v.  Knight,  64 
N.  J.  Eq.  196,  53  Atl.  452.  And  see  Lippincott 
V.  Wlkoff,  54  N.  J.  Bq.  107,  33  Atl.  am.  and 
Faby  v.  Cavanagh,  59  N.  J.  Eq.  278,  44  Att. 
154.  I  have  reached  the  conclusion  that  no 
construction  which  I  can  put  upon  this  clause 
of  the  will  is  so  free  from  doubt  as  to  war- ' 
rant  this  court  in  decreeing  specific  perform- 
ance. The  contention  of  the  respective  par- 
ties is,  the  complainant  that  the  devise  creates 
a  fee  simple  defeasible  upon  the  first  taker 
dying  without  issue  and  intestate,  In  whldi 
event  the  executory  devise  over  would  oper- 
ate, and  that  the  executory  devisee  being  in 
esse  and  ascertained  she  may  Join  In  the  deed 
and  thereby  transfer  her  Interest,  and  that 
the  testamentary  power  of  disposal  being  a 
power  in  gross  may  be  released  and  the  re- 
sult Is  a  good  title;  the  defendant,  that  un- 
der the  determlnaticm  of  the  Court  of  Ap- 
peals in  Kellers  v.  Kellers,  80  N.  J.  E>i.  441, 
85  Atl.  340,  Cantlne  v.  Brown,  46  N.  J.  Law. 
599,  and  Kent  T.  Armstrong,  6  N.  J.  Eq.  637, 
the  devise  is  that  of  a  life  estate  only  with  a 
power  of  testamentary  disposition,  and  that 
inasmuch  as  the  estate  is  one  for  life  only,  11 


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101  ATLANTIC  REPORTER 


(N.J. 


the  first  taker  dies  without  Issue  and  Intes- 
tate, then  the  executory  devise  over  would 
operate,  and  that  If  she  dies  with  Issue,  ei- 
ther the  Issue  will  take  or  the  estate  will  fall 
Into  the  residue  of  first  testator's  estate. 
Defendant  further  contends  that  in  view  of 
Thomson's  Executors  v.  Norrls,  in  the  Court 
of  Appeals.  20  N.  J.  Eq.  489,  that  there  Is  at 
least  dictum  in  this  state  which  would  in- 
dicate that  the  power  of  disposal  is  not  such 
a  power  In  gross  as  may  be  released,  with 
the  result  that  the  first  taker  might,  notwith- 
standing her  release,  subsequently  exercise 
her  power  of  disposition  by  will.  If  the  case 
of  Kent  V.  Armstrong  is  to  be  given  full 
force  and  effect,  then  there  is  no  doubt  but 
that  the  estate  created  by  this  will  is  a  life 
estate  only.  It  is  said  that  the  force  of  the 
case  is  weakened  because  it  rests,  to  some 
extent  at  least,  upon  the  fact  that  the  effect 
of  tho  words  "should  die  without  heirs"  was 
to  create  at  common  law  a  fee  tall  and  under 
our  law  a  life  estate  at  the  time  of  the  de- 
cision, but  that  subsequent  to  that  case,  in 
1851,  a  statute  was  passed  (Volume  4,  G.  S. 
of  N.  J.  1910,  Wills,  par.  27,  p.  5870),  whldj 
provides  that  in  any  devise  or  bequest  of  real 
or  personal  estate  the  words  "die  without 
Issue"  or  "die  without  lawful  issue"  or  "have 
uo  issue"  shall  be  construed  to  mean  a  wane 
or  failure  of  issue,  in  the  lifetime  or  at  the 
death  of  such  person,  and  not  an  indefinite 
failure  of  issue,  imless  a  contrary  intention 
should  otherwise  appear  by  the  will,  and 
that  this  statute  has  been  considered  in  nu- 
merods  cases,  among  others  Patterson  v. 
Madden,  54  N.  J.  Eq.  714,  38  Atl.  27.^ :  Braz- 
zalle  V.  Dlebm,  86  N.  J.  Law,  276,  90  Atl. 
1128;  Dean  v.  Nutley,  70  N.  J.  Law,  217,  67 
Att.  1089;  Steward  v.  Knight,  62  N.  J.  Eq. 
232,  49  Ati.  535;  Vreeland  v.  Blauvelt.  23  N. 
J.  Eq.  483;  Dilts  v.  Clayhaunce,  70  N.  J.  Eq. 
10,  62  Atl.  672;  Oondlt  v.  King,  13  N.  J.  Eq. 
375;  Da  vies,  Administrator,  t.  Steele's  Ad- 
ministrator, 38  N.  J.  Eq.  168;  McDowell  v. 
SUger,  68  N.  J.  Eq.  125,  42  Atl.  575;  and 
'that  such  cases  construe  the  statute  as  creat- 
ing in  the  first  taker  a  vested  but  defeasible 
fee-simple  estate,  the  condition  of  the  de- 
feasance being  the  occurrence  of  the  devisee 
dying  without  issue.  Cantlne  y.  Brown,  46 
N.  J.  Law,  p.  599,  was  decided,  however,  by 
the  Court  of  Appeals  subsequent  to  the  pas- 
sage of  this  statute.  There  the  devise  was 
to  three  daughters,  their  heirs  and  assigns, 
with  a  proviso  that  in  case  one  should  re- 
main unmarried  and  should  make  no  dispo- 
sition of  her  estate  by  will  her  share  should 
at  her  death  be  equally  divided  among  her 
sisters,  and  the  Court  of  Appeals  said: 

"The  question  presented  is  whether  under 
that  devise  she  takes  a  fee  or  merely  a  life 
estate,  with  power  of  testamentary  disposition  of 
the  property.  Tiie  decision  of  this  court  in  Kent 
V.  Armstrong,  6  N.  J.  Eq.  637,  disposes  of  the 
question." 

Again  the  Court  of  Appeals  in  Kellers  v. 
Kellers,  80  N.  J.  Eq.  441,  85  Att.  340,  where 


the  devise  was  to  testator's  wife,  her  heirs 
and  assigns,  and  should  she  acquire  the  es- 
tate and  die  without  making  a  will,  then 
that  his  will  should  operate  and  his  estate 
be  divided  between  his  children  as  therein 
provided,  said  again,  quoting  Kent  v.  Arm- 
strong : 

"It  was  held  in  that  case  that  the  primary 
deviseo  took  a  life  estate  only,  with  a  power  of 
testamentary  disposition,  and  that  in  the  event 
of  her  dying  intestate  the  executory  devise  over 
became  operative.  Thirty-five  years  later  we 
aeain  had  before  us  in  the  case  of  Cantine  v. 
Brown,  46  N.  J.  Law,  699,  the  question  of 
the  construction  of  a  devise  similar  to  that  un- 
der scrutiny  in  Kent  v.  Armstrong,  and  de- 
clared that  the  decision  in  the  earlier  case  must 
be  regarded  as  the  law  of  construction  in  this 
state  on  sudi  devises." 

If  the  estate  taken  by  the  first  taker  Is 
merely  a  life  estate,  then  if  she  dies  with  is- 
sue, but  Intestate,  It  would  seem  that  either 
the  Issue  take  by  implication  or  the  property 
falls  Into  the  residue  of  the  testator's  estate. 
This  result  might  be  avoided  by  holding 
that  the  first  taker  took  a  fee  defeasible  upon 
the  happening  of  the  contingency,  and  I 
might  be  Inclined  if  the  matter  was  novel 
to  so  hold,  but  I  cannot  conceive  that  such 
a  holding  would  be  so  free  from  doubt  as  to 
permit  me  to  require  specific  performance. 
The  Court  of  Errors  and  Appeals  must  have 
given  some  effect  to  the  words  "and  intes- 
tate" In  determining  the  nature  of  the  es- 
tate created. 

So  with  respect  to  the  power  to  release 
the  right  of  testamentary  disposition.  I 
have  considered  the  numerous  cases  cited 
by  the  complainant,  and  Norrls  v.  Thomson's 
Executors,  19  N.  J.  Eq.  307,  in  the  Court  of 
Chancery,  and  Thomson's  EJxecutors  v.  Nor- 
rls, 20  N.  3.  Eq.  489,  at  page  524.  Chief  Jus- 
tice Beasley  In  the  latter  case  said  that: 

"I  have  not  found  any  case  in  which  it  was 
mamtaitied  the  power  to  appoint  to  strangers, 
after  the  expiration  of  an  interest  piven  to  the 
donee  of  the  power,  was  a  power  in  gross." 

There  was  In  existence  at  that  time  Al- 
bany's case,  1  Coke,  llOd,  76  Eng.  Reprint. 
250,  which  has  been  dted  in  the  case  below 
by  the  chancellor.  To  the  same  effect  is 
Smith  V.  Death,  56  Eng.  R^rlnt,  037.  In 
Grosvenor  t.  Bowen,  15  R.  I.  649, 10  Atl.  589. 
there  was  a  bill  for  spedflc  performance, 
the  question  of  title  being  raised  under  a 
will  which  gave  property  to  A.  for  life,  on 
his  decease  to  such  person  as  he  might  ai>- 
polnt  by  his  will,  and  In  default  of  such  ap- 
pointment to  the  heirs  of  testatrix;  It  was 
held  that  he  might  release  his  power  to  ap- 
point to  the  tenants  In  remainder  or  to  ex- 
tinguish it  by  joining  with  the  other  com- 
plainants in  a  deed  conveying  the  bargain- 
ed lot  to  the  defendant  In  fee  simple  and 
therein  releasing  the  power  to  him.  There 
is  a  full  discussion  of  the  law  in  this  case. 
There  may  also  be  a  very  clear  distinction 
between  a  power  to  appoint  among  designat- 
ed strangers  and  a  general  power  to  appoliit 
among  all  the  Inhabitants  of  the  earth,     in 


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CB0P8ET  T.  CROPSKT 


176 


view  of  the  dlctnin  of  Cblef  Justice  Beasley 
in  Thomson's  Executors  t.  Norris,  sui>ra,  it 
cannot,  I  think,  be  said  that  the  law  is  so 
well  settled  on  this  point  as  to  permit  a  de- 
cree for  si>eciflc  performance. 

I  will  advise  a  decree  dismissing  the  bill. 

(88  N.  J.  Bq.  «1) 

CROPSET  v.  CBOPSEY. 

(Court  of  Chancery  of  New  Jersey.    May  21, 
1917.) 

1.  HCSBAND      ANI>      WiFB      €=»201  —  SBTTINO 

Aside  Convetance— Evidence— Bubden  of 

Pbooi'. 
The  burden  of  establishing  fraud  is  upon 
the  complainant,  and  the  rule  that,  in  an  action 
by  a  wife  against  her  husband  to  set  aside  a 
conveyance  of  her  property,  a  presumption  of 
fraud  arises  which  the  husiband  must  overcome 
does  not  apply  to  an  action  by  the  wife  to  set 
aside  deeds  by  her  to  a  third  person  and  from 
the  third  person  back  to  the  husband  and  wife, 
where  it  was  shown  that  the  property  was  pur- 
cha.sod  with  their  joint  savings,  and  the  husband 
got  from  his  wife  that  which  in  fact,  belonged 
to  him. 

[Kd.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  735.] 

2.  Husband  and  "Wife  <8=»49%(7)— Convey- 
ance TO  Wife— Pbesumption. 

As  a  rule,  where  a  husband  transfers  his 
property  to  bis  wife  or  causes  it  to  be  trans- 
ferred to  her,  there  is  a  rebuttable  presumption 
that  the  transfer  was  a  gift. 

W"Ed.  Note.— For  other  cases,  see  Husband  and 
ife.  Cent  Dig.  §  253.] 

3.  Husband  and  Wife  <S=»49%(7)— Cos^tit- 

ANCE    OF  PSOPEBTY    By   WirE--llEBUTTAI,   OF 

Pbesumption. 
The  rule  is  less  rigid  to  rebut  the  presump- 
tion that  property  conveyed  to  a  wife  wns  a 
jrift,  and  to  prove  that  it  was  a  trust,  where 
the  trust  is  set  up  in  defense  of  a  deed  alleged 
to  have  been  given  in  discharge  of  the  trust. 

{Bid.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  {  253.] 

4.  Husband  and  Wife  ®=201  — SEiriNa 
Abide  Conveyance  — Evidence  —  Suffi- 
ciency. 

In  an  action  by  a  wife  against  her  husband 
to  set  aside  a  conveyance  by  the  wife  of  their 
home  to  a  third  person  and  by  the  third  person 
back  to  the  husband  and  wife,  evidence  held  not 
to  show  alleged  frand  by  the  hnsband  in  pro- 
coring  the  deieds. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  |  735.] 

Suit  to  set  aside  a  conveyance  by  Eva  P. 
Cropsey  against  Charles  D.  Cropsey.  BlU 
dismissed. 

Merritt  Lane,  of  Newark,  and  Harry  Lane, 
of  Jersey  City,  for  complainant  Robert 
Carey,  of  Jersey  City,  for  defendant. 

BAOKB8,  V.  C.  (orally  after  or^ment). 
The  bin  Is  tiled  by  Mrs.  Cropsey  against  her 
husband.  Dr.  Cropsey,  to  set  aside  convey- 
ances of  their  home  in  Rutherford;  one 
luade  by  Mrs.  Cropsey  and  her  husband  to 
Cook  Conkllng,  and  the  other  by  Conkling  to 
Mr.  and  Mrs.  Cropsey,  dated  May  29,  1913. 
The  cause  for  action  is  fraud  imposed  by  the 
hnsband  upon  the  wife,  namely,  that  he  co- 


erced her  into  signing  the  deed  by  threats  of 
abandonment,  and  Induced  her  to  execute  it 
upon  the  fraudulent  promise  that  he  would 
cease  attentions  to  another  woman,  mend  his 
ways  In  other  respects,  and  resume  conjugal 
relations,  all  of  which  it  la  charged  he  failed 
to  do. 

[1]  The  burden  of  establishing  the  fraud  la 
upon  the  complainant,  although  In  actions  of 
a  certain  class,  by  a  wife  against  her  hus- 
band, to  set  aside  a  conveyance  of  her  prop- 
erty, a  presumption  of  fraud  arises,  which 
the  husband  must  overcome.  For  instance, 
if  this  deed  were  a  pure  gift  by  the  wife  to 
the  husband  of  her  property,  the  burden 
would  be  upon  the  husband  to  show  that  it 
was  her  voluntary  act,  and  I  incline  that  he 
would  also  be  obliged  to  show  that  she  had 
the  benefit  of  independent  advice,  or  at  least, 
as  the  books  lay  it  down,  the  burden  would 
be  upon  him  to  prove  that  he  did  not  deceive 
or  oppress  her,  and  that  he  dealt  fairly  with 
her,  and  that  she  understood  the  nature  of 
the  transaction.  But  this  is  not  a  gift  case 
to  which  the  rule  applies,  as  I  understand  it 
Here  the  husband  got  from  his  wUe  that 
which  In  fact  belonged  to  him. 

This  couple  were  marrieil,  as  I  recall,  in 
1S92,  and  for  many  years,  during  the  strug- 
gling period,  got  along  happily.  Both  worked 
and  saved  money  together;  he  as  a  pbysidan 
and  she  as  a  singer  and  music  teacher.  She 
was  the  treasurer;  they  had  but  one  pocket- 
book,  and  this  she  controlled.  She  managed 
the  finances  and  ran  his  books  and  bank  ac- 
counts. With  the  accumulations  they  bought 
a  lot  and  put  the  title  in  her  name,  and  out 
of  tlielr  savings  they  built  their  home  in 
1905,  costing  some  $6,000  or  $7,000,  and  later 
they  paid  oS  some  of  the  mortgage  incum- 
brance. The  greater  portion  of  the  money 
came  from  the  doctor's  practice.  Somewhere 
in  the  evidence  it  appears  that  the  object  of 
putting  the  title  in  Mrs.  Cropsey  was  to  pro- 
tect It  from  the  consequences  of  possible  law- 
suit against  the  doctor.  Later  In  life,  and 
some  six  or  seven  years  ago,  their  relations 
became  somewhat  strained,  largely  due,  as  I 
take  It,  to  his  persistent  demands  and  her  re- 
fusal to  transfer  the  home  to  the  name  of  the 
two.  The  ill  feeling  gradually  Increased,  and 
they  drifted  further  apart,  and  when  Dr.  De 
Baun  came  Into  her  life  it  reached  an  acutb 
stage,  which  resulted  In  complete  estrange- 
ment After  he  came  on  the  scene  she  was 
not  as  constant  In  wifely  deportment,  to  put 
it  mildly,  as  she  ought  to  have  been.  For 
two  years  Dr.  De  Baun's  attentions  to  Mrs. 
Oopsey  were  marked,  which  served  to  in- 
tensify the  bitterness  upon  the  part  of  her 
husband,  whose  close  and  intimate  friend  Dr. 
De  Baun  had  been  for  many  years.  He  was 
a  free  visitor  at  the  house,  calling  almost 
daily,  day  and  night,  whether  the  doctor  was 
home  or  absent,  and  their  conduct  and  es- 
capades finally  led  to  the  divorce  courts,  Dr. 


•ssFor  otI)ar  oaa«a  sm  uame  toplo  and  KEY-NUHBBR  la  ell  K«y-Num^ered  DlgevU  and  ladtfa*. 


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101  ATIANTIC  REPORTER 


(N.J. 


Oropsey  charging  Ms  wife  with  adultery  with 
Dr.  De  Baun,  In  which  she  countercharged 
him  with  a  like  offense  with  two  women 
whom  she  named.  I  tried  that  case,  and  dis- 
missed the  cross-petition  because  the  charges 
were  entirely  unfounded,  and  also  dismissed 
the  doctor's  petition.  I  denied  him  a  decree, 
not  that  there  was  not  an  abundance  of  evi- 
dence calculated  to  arouse  a  strong  suspicion 
of  wrongdoing,  but  solely  because  the  proof 
did  not  measure  up  to  the  legal  requirements 
to  Justify  judging  her  guilty.  The  final  sepa- 
ration toolc  place  in  July  or  August  of  1913, 
after  a  Mrs.  Thompson  disclosed  to  Dr.  Crop- 
sey  the  mistmhavlor  of  his  wife  and  Dr.  De 
Baun  at  her  home  the  summer  before,  and 
the  impending  scandal  and  exposure  of  a 
threatened  divorce  suit  was  followed  shortly 
by  the  death  of  Dr.  De  Baun  by  suicide,  as  I 
understand.  I  do  not  know  that.  In  drawing 
upon  my  memory,  I  am  referring  to  the  testi- 
mony In  this  ca.se  or  the  testimony  in  the  di- 
vorce suit — I  am  unable  to  distinguish  Just 
now — but  It  does  appear  In  the  one  or  the 
other,  and  If  It  does  not  appear  In  the  one  I 
am  trying.  It  must  be  disregarded. 

[2,  3]  As  a  rule,  where  a  husband  transfers 
his  property  to  his  wife  or  causes  It  to  be 
transferred  to  her.  It  Is  presumed  to  be  a 
gift,  but  this  Is  a  mere  presumption,  and, 
like  all  other  presumptions,  may  be  rebutted. 
Looking  into  the  circumstances  of  this  case 
— the  singleness  of  purpose  of  husband  and 
wife  earning  and  saving  in  common  to  buy  a 
home ;  his  daily  earnings  and  Income  con- 
tributing largely  to  the  fund,  the  lifetime 
savings  of  the  two,  and  the  complete  under- 
standing that  the  home  was  to  be  the  prop- 
erty of  both,  though  title  was  put  In  the  wife, 
and  that  upon  the  death  of  either  It  was  to 
go  to  the  survivor — we  find  there  was  In 
morals  and  common  Justice,  at  least,  a  most 
sacred  trust;  perhaps  unenforceable  because 
of  the  presumption  of  gift  and  the  rule  re- 
quiring resulting  trusts  to  be  definitely  es- 
tablished by  satisfactory  and  convincing 
proof.  But  the  rule  is  far  less  rigid  to  rebut 
the  presumption  and  to  prove  the  trust, 
where  the  trust  Is  set  up  in  defense  of  a  deed 
alleged  to  have  been  given  In  discbarge  of 
the  trust 

[4]  The  doctor  had  been  Insisting  upon 
this  deed  for  years,  because,  as  he  says,  they 
had  no  children,  and  if  his  wife  should  die 
first  his  rights  would  be  lost ;  and  Indeed  It 
appears  from  Mrs.  Cropsey's  testimony  that 
to  guard  against  such  an  event  she  had  made 
a  win  In  bis  favor.  As  between  himself  and 
his  wife,  things  were  going  from  bad  to 
worse.  Discord  reigned  supreme  In  the 
household.  Dr.  De  Baun's  attentions  and 
presence  In  the  house  had  become  so  objection- 
able to  Dr.  Cropsey  that  he  ordered  him  to 
stay  away,  but  despite  this  Mrs.  Cropsey  en- 
tertained him.  The  night  before  the  day  the 
deed  was  executed  De  Baun  was  a  caller. 
This  succeeded  an  occasion  by  two  or  three 
days  when  Dr.  Cropsey  found  bis  wife  and 


De  Baun  in  darlcness  In  the  house,  and,  ac- 
cording to  his  story,  under  most  peculiar  and 
suspicions  circumstances.     As   I   recall    his 
testimony,    her  hair   was   disarranged,    her 
face  flushed.    On  the  night  In  question,  De 
Baun  and  Mrs.  Cropsey  returned  home  about 
1  o'clock  In  the  morning;    the  doctor  says 
they  had  been  drinking,  and  that  they  drank 
after  they  returned,  and  that  he  saw  them 
from  upstairs  caressing  and  kissing.     True, 
or  not,  he  accused  them  of  It  and  put  X>e 
Baun  out,  with  orders  to  stay  away,  which 
were  promptly  disregarded  by  De  Baun's  re- 
turn the  next  evening  or  the  evening  after — 
to  apologize.  It  Is  said.     The  anger  of  the 
doctor  and  the  scene  that  night  must  have 
Impressed  Mrs.  Cropsey  that  the  cUmax,  the 
point   of   separation,   was   near;     and   Just 
how  it  came  about  that  at  this  time  Mrs. 
Cropsey  yielded  to  her  husband's  longing  for 
his  share  of  the  property  the  stories  of  the- 
two  differ.    He  says  that  the  next  morning  at 
the  breakfast  table  she  made  the  offer ;  while, 
on  the  contrary,  she  says  that  he  threatened 
to  leave  her,  and,  fearful  that  he  would,  and 
relying  upon  his  promise  to  give  up  a  named 
woman  and  that  he  would  become  fully  rec- 
onciled, she  agreed.   At  any  rate,  after  break- 
fast  they  went  to  Mr.  Conkling's  office,   a 
reputable  lawyer  in  Rutherford,  and  detailed 
to  him  what  was  wanted,  and  after  a  full  ex- 
planatlon  of  the  effect  and  consequences,  they 
were  told  to  return  at  2  o'clock,  when  the 
deed  would  be  ready,  and  when  It  was  sign- 
ed and  acknowledged  before  a  Mr.  Miller,  a 
master  of  this  court,  and  left  with  Mr.  Conk> 
Itng  for  recording.     In  the   meantime.   Dr. 
Cropsey  returned  to  hia  house  to  fetdi  the 
title  deeds  for  the  draft    Later  In  the  day, 
Mrs.  Cropsey  telephoned  to  the  lawyer  bo 
withhold  the  deed  from  record,  but  on  the 
following  Monday  she  retracted  by  a  note,  di- 
recting that  It  be  recorded.    I  cannot  credit 
Mrs.  Cropsey's  story  that  she  signed  the  deed 
under  pressure  of  her  husband's  threat   to 
abandon  her,  and  that  she  signed  It  against 
her  will,  and  that  she  told  the  lawyer,  Couk- 
ling,  that  what  she  was  about  to  do  was 
against  her  will,  and  that  the  deed  was  not 
of  her  own  free  will,  but  was  done  to  please 
the  doctor.     I  doubt  very  much  that  Mr. 
Conkllng,  under  such  drcumstaoces,  would 
have  consented  to  act  as  the  conduit,  and  I 
am  satistied  that  he  fully  explained  to  her 
the  consequences,  and  that  she  acted  under- 
standlngly  and  willingly.    If  there  had  been 
any  connivance  between  him  and  Dr.  Cropsey, 
he  certainly  would  not,  later  on  In  the  at ter^ 
noon,  when  Mrs.  Cropsey  telephoned  to  him, 
have  kept  the  deed  from  the  record.    I  doubt 
not  that  Dr.  Cropsey  many  times  npbralde>d 
his  wife  because  of  her  conduct  and  threat- 
ened to  leave  home — and  be  could  not    be 
blamed  If  he  had — but  I  have  ao  confidence 
in  her  story  that  she  was  moved  to  sign  the 
deed  by  his  promise  of  future  continence. 
Such  threats.  If  we  may  believe  her,  had  of- 
ten been  made  before,  and  with  the  same  de- 


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bIkd,  and  she  always  strennoiiBly  resisted, 
and  therefore  why  capitulate  at  this  time? 
As  I  review  the  sltaatlon,  Mrs.  Cropsey 
sensed  her  husband's  suspicion  of  her  mis- 
conduct with  Dr.  De  Baun.  His  discovery  of 
a  few  nights  before  had  brought  on  a  crisis, 
and  to  appease  him,  to  avoid  an  open  break, 
to  maintain  her  status  publicly  as  his  wife, 
she  relinquished.  This  was  her  gain.  She 
was  Impelled  by  motives  of  self-preservation, 
conscious  that  she  was  simply  restoring  to 
bUu  his  own,  and  discharging  the  trust  he 
put  In  her  years  before  when  love  and  affec- 
tion and  confidence  ruled.  Her  attempted 
repudiation  of  the  deed  In  the  afternoon 
shows  no  more  than  that  she  regretted  the 
step  she  had  taken  and  does  not  argue  that 
her  action  earlier  in  the  day  was  unwilling; 
for,  as  I  have  said,  Mrs.  Cropsey's  Jealousy 
of  the  other  woman  was  without  foundation 
In  fact,  and  her  whim  a  mere  subterfuge. 
That  her  action  was  deliberately  considered 
and  freely  consummated,  without  haste  or 
nrgeocy  on  the  part  of  her  husband,  is  borne 
out  by  the  fact  that  they  first  consulted 
counsd  without  taking  with  them  their  title 
deeds,  which  ordinarily  would  not  have  been 
the  case  had  her  conduct  been  precipitate 
.  and  coerced ;  and,  having  placed  her  in  dire 
fear  and  deluded  her  by  false  promises,  as 
she  says  was  the  case,  we  would  naturally 
expect  he  would  supply  himself  with  the 
Qieans  for  a  hurried  accomplishment. 

The  complainant  has  not  made  out  her 
case,  and  the  bill  will  be  dismissed. 


(87  N.  J.  Bq.  ni) 
In  re  STRUBI^'S  ESTATE. 


(No.  8680.) 


(Prerogative   Court   of   New   Jersey.     May  1, 
1017.) 

1.  EXECVTOBS    AITD    AdMINIBTBATOBS    4s>120 

(1)— Decedent's  Kealtt. 
Ordinarily,  tJie  adminlBtrator  has  no  con- 
cern with  decedent's  realty. 

[Ed.  Note.— For   other  cases,   see   Executors 
and  Administrators,  Cent.  Dig.  {f  533,  534.] 

2.  C!ouKTs  <S=3l98— Obphanb'  Ooubt. 

The  orpbanti'  court  cannot  assume  jurisdic- 
tion unless  couferred  by  statutes. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent 
Dig.  H  469,  471-475,  478.] 

8.  JuDoicENT    $=9^89  —  Obphans'     Coubt— 
tbanscenonco    jcbisdicnor— collatebai, 
Attack. 
If  the  orphans'  court  transcends  its  juris- 
dictioD,  its  acts  pass  for  nothing,  and  may  be 
collaterally   attacked,   and  if  an  administrator 
sbould  account  for  rents  in  the  orphans'  court, 
and   should  thereafter  be  required  to  account 
elflewhere  by  some  one  dissatisfied  by  the  or- 
phans' court's  order,  certainly  if  by  some  one 
who  did  not  appear  in  the  orphans    court,  the 
administrator,  if  the  orphans'  conrt  had  no  ju- 
risdiction, would  be  obliged  to  account  again. 

(Ed.  Note. — For  other   cases,   see  Judgment, 
Cent.  Dig.  {{  024,  025.J 

4.  Courts  «=>23  —  Juribdictior  —  Obphans* 

COUKT — ACQUIESriSNCE. 

Aoquiescence  by  an  administrator  and  heirs 
In    the  admiDistrator's    accounting   to   the   or- 


phans' conrt  for  rents  of  decedent's  realty  will 
not  confer  jurisdiction  on  the  orphans'  court. 

[Ed.  Note.— For  other  cases,  see  Goorts,  Cent. 
Dig.  §§  75,  76%,  81.) 
6.  BXKCUTOBS  AND  Administbatobs  S=>510(4) 

— AcconNTiNo— Jdbisdiction — Appeal. 
An  administrator,  who  mistakenly  accounted 
to  the  orphans'  court  for  rents  for  decedent's 
realty,  is  not  precluded  from  insisting,  on  ap- 
peal from  an  order  of  the  orphans'  court  refus- 
ing to  strike  out  exceptions  ^ed  to  his  account- 
ing, upon  his  right  to  account  in  some  tribunal 
whose  decree  will  adequately  protect  him. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  i  2244.] 

6.  BXECOTOBS  AND  Administbators  €=504(7) 
— Accounting — Orphans'   Court— Liack  op 
JuBisDicTioN— Motion   to   Stbikx   Excep- 
tions. 
Where  the  orphans'  court  had  no  jurisdic- 
tion to  compel  an  administrator  to  account  for 
rents  from   decedent's   realty,   motion   to  strike 
out  exceptions  tiled  to  the  accounting  of  the  ad- 
ministrator, on  the  ground  that  the  exceptions 
were  based  on   the   administrator's  neglect  to 
account  for  rents  collected  by  him  subsequent  to 
intestate's  death,  should  have  been  granted. 

lB(d.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {  2167.] 

Appeal  from  Orphans'  Court,  Sussex 
County. 

In  the  matter  of  the  estate  of  August 
Struble,  deceased.  Appeal  from  an  order 
of  the  orphans'  court,  refusing  to  strike  out 
exceptions  filed  to  the  administrator's  ac- 
count on  the  ground  that  the  exceptions  were 
based  on  the  administrator's  neglect  to  ac- 
count for  rents  collected  by  him  subsequent 
to  intestate's  death.    Order  reversed. 

Charles  F.  Kocber,  of  Newark,  for  appel- 
Unt. 

LANE,  Vice  Ordinary.  Th\s  Is  an  appeal 
from  an  order  of  the  Sussex  county  orphans' 
court,  refusing  to  strike  out  exceptions  filed 
to  an  accounting  of  an  administrator  upon  the 
ground  that  the  exceptions  were  based  upon 
the  neglect  of  the  administrator  to  account 
for  rents  collected  by  him  subsequent  to  the 
death  of  the  intestate 

[1]  The  orphans'  court  while  admitting, 
as  it  was  bound  to  do,  that  ordinarily  the  ad- 
ministrator has  no  concern  with  real  estate, 
yet  held  that,  because  In  fact  the  adminis- 
trator had  In  previous  accounts  accounted 
for  rents,  and  that  there  was  a  tacit  agree- 
ment between  the  telrs  that  he  should  ac- 
count for  rents  as  assets  of  the  estate,  the 
administrator  was  estopped  from  denying 
the  jurisdiction  of  the  orphans'  court  to 
compel  him  to  account  No  answer  was  filed 
to  the  petition  of  appeal,  and  this  court  has 
not  be^a  favored  with  the  views  of  counsel 
for  the  exceptants. 

[l-S]  The  question  is  one  of  jurisdiction 
The  orphans'  court  cannot  assume  jurisdic- 
tion unless  conferred  by  statute.  If  the 
court  transcend  Its  jurisdiction,  its  acts  pass 
for  nothing,  and  may  be  collaterally  attack- 
ed.    In  re  Alexander,  79  N.  J.  Eq.  226,  81 


«s»For  otber  casn  see  lams  topic  and  KBT-NUMBER  In  all  Ker-Numbered  DIgeaU  and  IndnM 


101  A.— 13 


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1(11  ATLAHrriO  REPORTER 


(N.3. 


AtL  732.  If  the  administrator  should  ac- 
count in  the  orphans'  court  and  shoald  there- 
after be  required  to  account  elsewhere  by 
some  one  dissatisfied  with  the  order  of  the 
orphans'  court,  certainly  If  by  some  one  who 
had  not  appeared  In  the  orphans'  court,  he 
would.  If  the  orphans'  court  had  no  Jurisdic- 
tion, be  obliged  to  account  again.  There 
may  be  cases  where  those  Interested  in  the 
rents  are  persons  over  whom  the  orphans' 
court  has  no  claim  of  Jurisdiction.  Acquies- 
cence will  not  confer  Jurisdiction.  Certain- 
ly the  mistaiccn  prior  accounting  for  rente 
does  not  preclude  the  administrator  from 
now  insisting  upon  his  right  to  account  in 
fiome  tribunal,  the  decree  of  which  will  ade- 
quately protect  him. 

[S]  The  orphans'  court  not  having  Juris- 
diction to  comiiel  the  administrator  to  ac- 
count for  the  rents,  the  motion  to  strilte  out 
the  exceptions  should  have  been  granted. 
The  order  of  the  orphans'  court  will  be 
therefore  reversed. 


(S7  N.  J.  Eq.  674) 

POSSBLT  et  al.  v.  D'ESPARD  et  aL 

D-BSPARD  ct  al.  v.  FRITZ  SCHULZ  JUN- 
IOR CO. 

(No.  43/244.) 

(Court  of  CJhancery  of  New  Jersey.     June  21, 
1917.) 

Corporations  ®=>320(13)  —  Receivers  —  Ap- 
pointment —  Grounds  —  Alie.h  Enemy 
Stockholders. 
The  stock  of  a  company  for  the  manufacture 
of  metal  polish,  incorporated  in  New  Jersey, 
was  entirely  owne<l  by  a  German  corporation. 
The  board  of  directors  was  composed  of  three 
Germans  and  two  Americaus.  In  the  absence  in 
Germany  of  two  of  the  German  directors,  the 
two  American  directors  called  a  meeting  in  the 
office  of  the  remnining  German  director,  oustetl 
him  from  his  position  as  general  manager,  and 
Appointed  other  officers,  thereby  attempting  to 
appropriate  to  thoir  own  uses  the  pmporty  of  the 
company.  Held,  that,  the  ousted  director  being 
the  only  one  representing  the  interests  of  the 
stockholders,  there  was  no  bourd  competent  to 
act,  and  a  receiver  would  be  appointed  as  the 
only  method  by  wliich  the  interests  of  alien  ene- 
mies could  be  protected. 

Consolidated  suits  by  Alfred  Hugo  Posselt 
and  others  against  R.  Seabury  D'Espard 
and  others  and  by  R.  Seabury  D'Efepard  and 
others  against  the  Fritz  Schulz  Junior  Com- 
pany for  the  appointment  of  a  receiver.  Ap- 
plication granted. 

See,  also,  100  Att.  893. 

Randolph  Perltlns,  of  Jersey  (3ity,  for  R. 
Seabury  D'Espard  and  William  Howard 
Ho<9le.  Joseph  Kahrs,  of  Newarlc,  for  Al- 
fred Hugo  Posselt.  Fritz  Junior  Aktiea  Ges- 
selschaft,  and  Fritz  Schulz  Junior  Co. 

LANE,  V.  C.  (orally).  I  am  going  to  decide 
the  case  of  D'Espard  v.  Fritz  Schulz  Junior 
Company,  on  application  for  appointment  of 
a  receiver. 


The  foUowlDg  facts  appear:  In  October, 
1905,  the  company  was  Incorporated  under 
the  laws  of  this  state  for  the  purpose  of 
manufacturing  a  metal  polish.  The  capital 
stock  was  owned  wholly  by  a  German  cor- 
poration. No  money  was  invested  except 
that  invested  by  the  German  concern.  At 
that  time  the  German  company  had  a  sales 
agreement  with  a  company  known  as  Raimcs 
&  Ck>.,  limited,  of  London.  The  purpose  of 
the  Incorporation  of  the  Fritz  Schulz  Junior 
Company  in  this  country  was  to  avoid  the 
necessity  of  transferring  the  manufactured 
product  from  Germany  here.  Tlie;  Fritz 
Schulz  Junior  Company  entered  into  a  sales 
agreement  with  a  company  in  New  York,  a 
concern  incorporated  by  Raimes  &  0>.  of 
London,  Limited,  for  the  purpose  of  acting  in 
this  country  in  the  same  manner  as  Haimes 
&  Co.,  Limited.,  acted  in  Europe.  The  rela- 
tions then  existing  oetween  Raimes  &  Ck>. 
and  the  German  corporation  were  extremely 
friendly.  The  board  of  directors  of  the  Fritz 
Schulz  Junior  Company  consisted,  I  think,  of 
three  Germans  and  two  rei)resentatlves  of 
Kaimcs  &  Co.  The  directors  held  one  share 
of  stock  each,  but  were  pure  dummies. 

At  the  outbreak  of  the  war  in  1914  the 
rights  of  the  German  concern  in  England 
were  by  act  of  Parliament  forfeited  and 
were  taken  over  by  Raimes  &  Co.  of  Loudon, 
Limited.  When  there  was  prospect  of  war 
between  this  country  and  (Jerumny  I  think 
the  conclusion  is  irresistible  that  the  di- 
rectors of  tlie  Fritz  Schulz  Junior  Company, 
who  were  or  had  been  representatives  of 
Raimes  &  Co.  of  New  York,  conceived  the 
idea,  in  view  of  the  absence  in  Germany  of 
one  or  two  of  the  German  directors,  of  con- 
summating lawlessly  in  this  country  what  is 
sold  to  have  been  permitted  by  law  in  Eng- 
land. They  thought  that  the  time  was  oppor- 
tune to  take  over  the  property  of  the  Fritz 
Schulz  Junior  Company  In  this  country,  not, 
however,  for  the  l)eneflt  of  the  government, 
but  for  the  benefit  of  themselves.  They  at- 
tempted to  do  this  by  going  to  the  office  of 
the  company  in  Lincoln,  N.  J.,  where  the 
general  manager,  who  was  the  resident  di- 
rector representing  the  German  concern,  then 
was,  and,  finding  him  there,  calling  a  meet- 
ing of  the  board  of  directors  of  the  Fritz 
Schulz  Junior  (Company  and  proceeding  to 
oust  the  representative  of  the  German  con- 
cern as  general  manager  and  as  an  ofiBoer  of 
the  company,  and  substituting  ofllcers  of 
tlieir  own  selection.  They  then  directed  the 
discontinuance  of  a  suit  which  had  been 
brought  by  the  Fritz  Schulz  Junior  Com- 
pany against  Raimes  &  C!o.  in  New  York  for 
breach  of  contract  They  were  defeated  in 
this  in  the  New  York  courts,  and  a  judgment 
was  obtained  for  something  like  $8,000.  That 
Judgment  has  not  yet  been  collected.  The 
assets  of  Raimes  &  Ck>.  I  understand  have 
l>een  put  In  such  shape  as  to  make  it  dif- 
ficult of  collection.     In  that  situation  the 


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KITCHELL  ▼.  CHOSSLET 


179 


resident  representative  of  the  German  com- 
pany appealed  to  this  court  for  an  Injunction 
restraining  the  two  directors  representing 
Ralmes  &  Ck>.  from  acting  as  directors  and 
officers,  upon  the  ground  that  they  had  com- 
mitted a  breach  of  trust.  The  original  bill 
prayed  for  the  appointment  of  a  receiver; 
subsequently  an  amended  bill  was  filed,  in 
which  the  prayer  for  the  appointment  of  a 
receiver  was  omitted.  I  advised  the  injunc- 
tion. The  two  American  directors  then  filed 
a  bill,  praying  for  ttie  appointment  of  a  re- 
ceiver upon  the  ground  ttiat  the  Fritz  Schulz 
Junior  Company  had  no  board  of  directors 
competent  to  act,  and  it  is  upon  that  bill 
that  the  present  application  has  been  made. 

There  Is  no  doubt  but  that  the  company  at 
this  time  has  no  proi)er  board  of  directors. 
The  one  director  who  really  represents  the 
stockholders  is  the  general  manager  of  the 
concern  who  was  ousted  by  the  vote  of  the 
two  American  directors.  I  think  that  the 
two  other  German  directors  are  now  In  Ger- 
many, and  cannot  get  her&  That  leaves  the 
three  directors  In  this  country,  one,  who 
really  represents  stockholders,  and  two  who 
really  represent  antagonistic  interests.  Be- 
cause of  the  apparent  legality  on  its  face  of 
the  meeting  of  the  directors  which  ousted  the 
representative  of  the  German  company  from 
control,  it  is  necessary  that  this  court  should 
intervene  for  the  protection  of  the  interests 
of  the  company.  The  effect  of  my  injunc- 
tion will  be  practically  to  permit  the  con- 
cern to  be  mn  by  one  director,  and  he  not 
a  citizen  of  this  country.  I  am  unwilling  to 
permit  such  a  situation  to  exist  The  ap- 
pointment of  a  receiver  is  resisted  by  the  rep- 
resentatives of  the  German  interests.  I  think 
tliat  it  is  not  only  In  the  Interest  of  the  Ger- 
man company  that  a  receiver  should  b&  ap- 
pointed, but  that  it  is  absolutely  necessary  for 
the  conservation  of  the  property  of  the  com- 
pany. It  has  been  suggested  that  they  would 
like  to  take  their  chances.  They  have  the  ut- 
most confidence  that  If  I  enjoin  the  directors 
from  acting,  the  one  German  (I  think  it  Is  now 
said  he  is  Austrian)  director  here  would  be 
able  to  continue  business  in  the  same  manner 
as  it  has  been  continued.  I  can  see  that  if 
I  permit  this  it  will  only  lead  to  endless  liti- 
gation in  other  courts,  and  that  it  is  really 
contrary  to  the  interest  of  the  German  stock- 
holders. Nor  do  I  think  that  this  court  is 
justified,  where  a  situation  exists  such  as 
this  in  which  the  aid  of  this  court  must  be 
obtained  in  order  to  protect  the  Interests  of 
alien  enemies,  and  in  which  this  court  has 
undoubted  Jurisdiction  to  appoint  a  receiver, 
in  granting  the  relief  to  the  alien  enemies 
withont  also  going  further  and  seeing  to  it 
that  the  effect  of  the  relief  granted  will  not 
be  to  permit  the  transfer  of  property  from 
this  country  to  an  alien  enemy. 

I  will  appoint  the  present  general  man- 
ager as  a  receiver  under  a  bond  of  $25,000, 
and  will  associate  with  him  as  receiver  Ed- 


win Maxson,  of  Summit,  under  a  bond  of  $25,- 

000.  The  active  management  of  the  com- 
pany until  further  orders  will  be  in  charge 
of  the  first  receiver  mentioned.  The  duty  of 
Mr.  Maxson  will  be  supervisory. 

I  also  on  my  own  motion  will  make  an 
order  consolidating  these  two  causes.  It  Is 
understood  that  the  appointment  of  a  receiver 
is  not  an  appointment  under  the  statute;  it 
is  a  pure  equity  receivership,  and  will  be  con- 
tinued only  so  long  as  the  company  shall  be 
without  a  board  of  directors  competent  to 
act,  or  so  long  as  the  exigencies  of  the  occa- 
sion require.  The  business  will  be  directed 
to  be  carried  on.  Debts  as  they  accrue  will 
be  paid.  The  business  of  the  company  is 
not  to  be  Interfered  with  In  the  slightest  de- 
gree. 

(W  N.  J.  lAW.  574) 

KITCHELL  T.  CROeSLET  et  aL    (No.  143.> 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18.  1917.) 

(SyUahut  hv  the  Court.) 

1.  Damages  ®=>121 — ^Action  fob  ARCHrrEcr's 
Services — Amount  of  Recoveby. 

Plaintiff,  an  architect,  was  employed  to  make 
plans  and  specifications  for  a  new  building.  A 
dispute  having  arisen  respecting  the  amount  of 
his  compensation,  the  parties  agreed  in  writing 
that  he  should  be  paid  $1,500  for  said  plans  and 
specifications  and  supeiTising  the  construction 
of  the  building,  $750  of  which  was  payable  upon 
the  completion  of.  the  plans  and  specifications, 
$375  when  the  building  was  half  completed,  and 
the  remainder  upon  completion.  The  $750  was 
paid  upon  the  signing  of  the  agreement,  but  the 
defendants  never  proceeded  to  the  construction 
of  the  building.  Held,  in  a  suit  by  the  architect 
to  recover  for  his  services,  that  tlie  written  con- 
tract was  controUiug  as  to  the  rate  of  compen- 
sation, and  that  the  amount  of  same  was  to  be 
determined  according  to  the  rule  laid  down  in 
Kehoe  v.  Kutherford,  56  N.  J.  Law,  23,  27  Atl. 

(Kd.  Note. — For  other  cases,  see  Damages. 
Cfent.  Dig.  iJ  306-308.] 

2.  Case  Distinguisiieo. 

Stephen  v.  Soap  Co.,  75  N.  J.  Law,  648,  6& 
AtL  69,  distinguished. 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  Bruce  P.  KItcfaell  against  James 
Ew  Crossley  and  others.  Judgment  for  plain- 
tiff and  defendants  appeal.  Seversed,  to- 
the  end  that  a  venire  de  novo  issue. 

Raymond,  Mountain.  Van  Blarcom  &  March, 
of  Newark,  for  appellants.  Church  ft  Harri- 
son, of  Newark,  for  appellee. 

PARKER,  J.  The  plaintiff's  claim  was  for 
the  "reasonable  value"  of  his  services  as 
architect  in  drawing  plans  and  spedflcatlons 
and  receiving  bids  for  a  proposed  new  build- 
ing which  was  never  built  according  to  such 
plans.  Defendants  undertook  to  meet  this  by 
setting  up  a  written  agreement  signed  by 
plaintiff  and  by  James  B.  Crossley  as  defend- 
ants' agent  whereby  plaintiff  stipulated  ta 
draw  the  plans,  etc.,  and  sui)ervl8e  the  erec- 


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101  ATIiANTIO  BEPOBTBR 


(N.J. 


tlon  of  the  building  for  $1,500,  of  whldi  $750 
was  to  be  payable  on  completion  of  plans, 
$375  when  building  should  be  half  completed, 
and  the  remainder  on  completion.  Plalutlff 
atatacked  this  as  havlqg  been  "abandoned," 
and  claimed  for  what  he  had  done  at  the 
architects'  customary  rate,  as  testified,  of 
three-fifths  of  6  per  cent,  on  the  estimated  cost 
of  the  building,  and  had  a  verdict  of  $2,757.26 
besides  the  $750  which  had  been  paid  to  him 
at  the  time  of  executing  the  written  agree- 
ment, or  about  $3,500  in  all.  He  did  nothing 
after  receiving  bids,  though  he  was  ready 
to  perform  all  needed  services;  the  deifend- 
ants  having  refused  to  go  on  according  to  his 
plana  and  having  employed  another  architect. 
The  dedslcm  turns  upon  the  rule  to  be  ap- 
plied touching  the  amount  of  recovery. 

When  plaintiff  was  first  employed  there 
was  no  specific  agreement  or  understanding 
as  to  the  rate  of  his  compensation,  and  after 
the  plans  were  substantially  ready  he  sent 
Mr.  Orossley  a  bill  for  $2,520  for  services  up 
to  that  point.  This  and  later  communications 
threatening  suit  brought  Crossley  to  Iiis  office, 
and  there  was  some  disputing  about  the 
amount  of  compensation,  which  resulted  in  the 
preparation,  by  plaintiff,  of  the  following 
paper  in  the  form  of  a  letter  or  proposal  on 
plalntlfTs  letter  head,  and  signed  by  him. 
Both  parties  agree  that  It  was  accepted  by 
Crossley,  and  it  is  plain  that  Ms  signature 
thereto  was  intended  as  such  acceptance. 

"Newark,  N.  J.    October  27,  1914. 

"Mr.  J.  E.  Crossley,  Newark,  N.  J.— Dear  Sir: 
I  propose  to  make  the  plans,  specifications  and 
supervise  the  works  on  the  new  four-story  and 
basement  building  on  the  comer  of  Market  and 
Halsey  street,  Newark,  N.  J.,  for  the  Peddle  es- 
tate, for  the  sum  of  One  Thonsaod  Five  Hundred 
($1,500.00)  dollars,  Seven  Hundred  and  Fifty 
($750.00)  on  completion  of  plans.  Three  Hun- 
dred and  Seventy-Five,  $375.00,  when  building  is 
half  erected.  Balance  as  work  proercsses. 
"Yours  truly,  Bruce  P.  KitcheU. 

"J.  E.  Crossley." 

At  the  time  this  paper  was  signed  by  the 
plaintiff  on  his  own  part  and  by  Crossley  as 
representing  the  defendants,  the  plans  and 
specifications  had  not  been  sent  out  to  pro- 
spective bidders.  The  case  shows  that  the 
$750  stipulated  for  was  paid  at  the  time  the 
agreement  was  made  or  almost  immediately 
thereafter,  and  that  plaintiff  was  instructed 
to  get  the  bids.  He  did  so,  and  according  to 
his  testimony,  Crossley  never  came  to  his 
office  to  consider  the  bids,  and  did  nothing 
further  in  the  matter.  As  a  result,  the  plain- 
tiff was  not  only  not  required  to  complete  the 
work  he  had  stipulated  to  do  by  this  agree- 
ment, but  was  actually  prevented  from  com- 
pleting it  by  the  action  of  the  defendants. 

At  the  trial  It  was  claimed  by  the  defend- 
ants that  this  agreement  wns  a  compromise 
and  settlement  of  plaintiff's  claim  for  what  he 
had  actually  done  and  a  written  agreement 
with  respect  to  what  he  should  be  paid  there- 
for, and  that  it  was  binding  ui>on  the  plain- 
tiff.  The  plaiutifTs  claim  was  that  by  reason 


of  the  fttllnre  of  the  defendants  to  go  on 
with  the  building,  be  was  not  bound  by  the 
agreement  either  for  what  he  had  done  or 
vrtth  respect  to  what  he  was  to  do.  The 
trial  Judge  left  it  to  the  Jury  to  say:  First, 
whether  the  written  agreem^it  was  a  settle- 
ment for  the  work  that  had  been  done  by  the 
architect  up  to  that  time;  whether  (to  quote 
hla  language)  when  they  signed  that  agree- 
ment It  was  with  an  understanding  between 
the  architect  and  Mr.  Crossley  that  what  work 
had  been  done  up  to  that  time  was  included  in 
the  sum  of  $1,500  which  he  was  to  receive, 
as  well  as  the  services  which  were  afterwards 
to  be  performed  by|  him,  as  the  architect, 
in  the  construction  of  this  building.  He  went 
on  to  say  that  if  it  was,  a  certain  rale  of  law 
applied,  and  then  stated  the  rule  as  laid 
down  In  Kehoe  v.  Kutherford,  B6  N.  J.  I^w, 
23,  27  AU.  912,  and  Wilson  v.  Borden,  68 
N.  J.  Law,  627,  M  Atl.  815,  and  under  that 
rule  limited  the  plalntlfTs  recovery  to  three- 
flfths  of  the  total  price  of  $1,500,  stating 
that  no  claim,  as  be  understood  It,  was  made 
for  profit  on  the  work  that  still  remained 
to  be  done  by  the  plaintiff,  and  that  there  was 
no  evidence  of  what  the  profit  would  be.  He 
then  further  charged  as  follows: 

"Now,  gentlemen,  on  the  other  view  of  the 
case,  if  you  should  find  that  the  agreement  a) 
October  27th  was  not  in  settlement  of  all  Ihf 
work  that  bad  been  done  prior  to  that  time, 
then  the  architect,  Mr.  KitcheU,  would  be  enti- 
tled to  recover  for  bis  services  whatever  they 
were  worth  up  to  that  tinie,  less  the  $750  which 
he  received  at  that  time." 

This  was  followed  by  instructions  as  to 
the  details  of  the  amount  recoverable  under 
those  circtmistauces.  Defendants'  counsel 
requested  a  charge  laying  down  the  rule  of 
Kehoe  v.  Butherford  in  the  language  of  that 
case,  which  was  refused,  and  an  exception 
noted,  both  to  this  refusal  and  to  the  por- 
tion of  the  charge  permitting  a  recovery  for 
the  value  of  the  services  as  above  set  forth. 

[f]  We  consider  that  there  was  error  in 
the  matters  excepted  to.  There  was  no  ques- 
tion but  that  the  written  agreement  was 
made  because  of  a  dispute  between  the  par- 
ties and  for  the  purpose  of  settling  that  dis- 
pute. At  that  time,  plaintiff  had  rendered 
some  services  for  which  he  was  perhais  then 
entitled  to  compensation,  but  at  an  amount 
not  agreed  upon,  and  therefore  uncertain. 
It  was  evidently  the  desire  of  both  parties 
that  the  amount  that  be  should  he  entitled 
to  receive  should  be  fixed  and  settled  be- 
tween them,  with  a  view  of  avoiding  further 
controversy,  both  as  to  services  already  ren- 
dered and  as  to  such  as  the  parties  contem- 
plated should  be  rendered.  If  this  agree- 
ment had  been  made  before  the  plaintiff 
performed  any  services,  and  after  he  had  fin- 
ished the  plans  and  specifications  the  defend- 
ants had  refused  to  go  further,  we  think 
there  can  be  no  question  but  that  the  rule  of 
Kehoe  V.  Rutherford  would  apply,  and  the 
damages  recoverable  on  a  breach,  whereby 
plaintiff  was  prevented  from  performins  in 


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STATE  y.  FLETCBKR 


181 


full,  woold  be  limited  by  that  rule  as  ap- 
plied to  the  contract  price.  The  fact  that 
the  agreement  was  made  after  some  work 
had  been  done  and  a  dispute  had  arisen 
makes  no  difference  in  the  result,  except 
that  the  additional  element  Is  Introduced 
of  a  compromise  and  settlement  of  the  dis- 
pute, the  legal  consideration  of  which  can- 
not be  successfully  challenged.  McCoy  v. 
MUbury,  87  N.  J.  Law,  697.  94  AU.  621. 

[J]  Respondent  relies  upon  the  case  of  Ste- 
phen V.  Camden  &  Philadelphia  Soap  Co., 
T5  N.  J.  Law,  648,  68  Atl.  69,  as  authority 
for  the  claim  that  the  contract  now  under 
consideration  was  abandoned,  and  that  the 
role  of  reasonable  value  for  the  services 
should  be  applied.  There  Is  no  doubt  that 
the  plaintiff  should  have  the  reasonable  val- 
ue of  his  services,  but  the  question  Is,  How 
Is  that  reasonable  value  to  be  ascertained? 
Is  it  to  be  ascertained  by  Inquiry  with 
respect  to  the  usual  and  customary  rate  of 
compensation.  In  the  absence  of  special  con- 
tract, or  are  we  to  look  to  the  contract  Itself 
aa  determinative  of  the  rate  of  compensa- 
tion? This  question  Is  not  answered  by  the 
case  cited.  An  examination  of  that  decision 
fails  to  disclose  how  much  the  plaintiff 
recovered,  or  on  what  basis.  The  errors 
assigned  were  that  the  court  below  should 
have  construed  the  contract  so  as  to  relieve 
the  defendant  from  liability,  and  erred  in 
refusing  to  grant  a  nonsuit,  or,  If  not,  then 
to  direct  a  verdict  In  Its  favor.  These  were 
the  only  two  questions  considered.  In  de- 
riding ftera  the  court  had  occasion  to  quote 
from  authorities  which,  In  laying  down  the 
rule  tkat  plaintiff  was  entitled  to  recover 
something  for  his  services,  also  discussed 
the  question  whether  the  price  fixed  by  the 
contract.  If  any,  should  be  made  the  conclu- 
sive test  of  the  value  of  the  services  ren- 
dered, or  the  real  value  of  the  services, 
though  in  excess  of  the  contract  price;  but 
this  court  did  not  decide  the  question  in  that 
case,  because  it  was  not  raised.  The  opin- 
ion concluded,  however,  by  dtlng  the  cases 
of  Kehoe  v.  Rutherford,  supra,  and  Ryan  v. 
Remmey,  57  N.  3.  Law,  474,  31  Atl.  766,  In 
both  of  which  the  amount  of  recovery  for 
work  done  under  an  uncompleted  contract, 
terminnted  by  the  wrongful  act  of  the  de- 
fendant, was  predicated  upon  the  contract 
price. 

We  are  nnable  to  see  that  the  circinn- 
stances  of  this  case  prevent  the  application 
of  the  mie  laid  down  In  Kehoe  v.  Ruther- 
ford, and  Wilson  v.  Borden,  or  that  there 
was  any  question  for  the  jury  as  to  whether 
the  written  contract  between  the  parties 
applied.  There  was  no  fraud  in  its  making, 
as  the  court  Itself  expressly  charged;  Its 
consideration  was  adequate,  and,  there  being 
nothing  to  vitiate  it,  It  stood  as  the  agree- 
ment of  the  parties.  It  was  therefore  error 
for  the  trial  court  to  jjermlt  the  jury  to  pass 
on  the  question  whether  this  contract  was 


controlling,  and  for  this  error  the  Judg- 
ment must  be  reversed,  to  the  end  that  a 
venire  de  novo  issue. 


(90  N.  J.  Law,  722) 
STATE  V.  FLETCHER.     (No.  5.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

1.  Witnesses  <S=»255(2)— Right  to  Refresh 
Recollection— HoBFiTAi.  Histobt. 

It  was  proper  to  allow  a  medical  witness 
to  use  his  hospital  history  to  refresh  his  recol- 
lection, although  it  was  dictated  by  him  aod  not 
trauscritied  in  his  presence,  where  he  identified 
it  as  a  transcript  of  the  notes  he  dictated  at 
the  time,  and  no  more  proof  waa  necessary  to 
justify  its  use.    " 

[Ed.  Note.— Fw  other  cases,  see  Witnesses, 
Cent.  Dig.  S  876.] 

2.  Witnesses  «=>277(3>— Cbosb-Examination 
OF  Accused— Facts  SEpwiNo  Pbobabiutt 
or  Guilt. 

Where  defendant,  accused  of  criminal  abor- 
tion, testified  that  her  patient  told  her  she  had 
come  from  a  doctor  in  New  York,  cross-exami- 
nation as  to  defendant's  acquaintance  with  that 
doctor  was  permissible,  since  her  knowledge  of 
the  doctor  might  throw  light  npon  the  probabil- 
ity that  she  would  perform  an  operation  on  a 
girl  who  claimed  to  have  l>een  sent  by  such  doc- 
tor. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  §  981.] 

3.  Cbiuinal  Law  @=>404(3)  —  Admission  of 
Evidence— Abortion — Illustration. 

In  a  prosecution  for  abortion,  it  was  per- 
missible to  use  the  speculum  offered  in  evidence 
to  illustrate  the  kind  of  instrument  which  the 
girl  said  the  defendant  had  used. 

(Ed.  Notew— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §§  873,  891,  893,  1457.] 

4.  Cbivinal  Law  <S=s>1172(7)— Appeal— Habm- 

LE88     BREOB— INSTBUCTIONS     FaVOBABLE     TO 

Defendant. 
Defendant,  accused  of  criminal  abortion, 
could  not  assign  as  error  the  giving  of  an  in- 
struction stating  that  the  fact  that  the  girl  had 
had  a  previous  miscarriage  or  visited  some  one 
else  than  defendant  was  immaterial  in  determin- 
ing the  defendant's  guilt,  since  it  was  intended 
as  a  warning  in  favor  of  defendant  that  the 
jury  was  not  to  convict  defendant  because  some 
one  ought  to  be  punished. 

[Eid.    Note.— For   other   cases,    see    Criminal 
Law,  Cent.  Dig.  {  8160.] 
6.  Witnesses  <3='277(3)—Cbos8- Examination 

OF  Accused— Pbobabilitt  of  Defendant's 

Testmont. 
Where  defendant,  accused  of  criminal  abor- 
tion, stated  she  had  refused  to  perform  the  op- 
eration and  had  offered  to  do  nothing  to  al- 
leviate the  girl's  pain,  it  was  permissible  to 
Hsk  defendant  if  she  could  not  have  given  the 
girl  something  to  alleviate  the  pain ;  such  ques- 
tion bearing  upon  the  probability  of  defendant's 
testimony. 

['Bid.  Note. — For  other  cases,'  see  Witnesses, 
Cent  Dig.  |  961.] 

Appeal  from  Supreme  Court. 

Jane  Fletcher  was  convicted  of  crime,  and 
appeals.    Affirmed. 

On  appeal  from  the  Supreme  Ck>urt,  in 
which  the  following  per  curiam  was  filed. 

[I]  "We  think  it  was  proper  to  allow  Dr.  Ill 
to  use  bis  hospital  history  to  refresh  his  recol- 


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(N.J. 


lecdon.  Althongli  it  was  dictated  by  him  to 
another,  and  not  transcribed  in  his  presence,  he 
identified  it  as  a  transcription  of  the  notes  he 
dictated  at  the  time.  We  think  he  might  well 
do  80 ;  and  no  more  proof  was  necessary  to  jus- 
tify its  use. 

"The  evidence  warranted  the  statement  of  the 
prosecutor  that  Dr.  Ballentine  became  convinced 
that  a  criminal  operation  had  been  performed. 
The  statement  that  the  doctor  made  an  examina- 
tion perhaps  was  inaccurate,  dependent  on  the 
sense  in  which  the  word  'examination'  was  used; 
but  it  was  barmleea. 

[2]  "The  cross-examination  of  the  defendant 
as  to  her  acquaintance  with  Dr.  Muttart  was 
permissible.  She  testified  on  direct  examina- 
tion that  her  patient  told  her  she  had  come  from 
a  doctor  in  New  York.  On  cross-examination 
she  said  the  girl  gave  her  the  name  of  Dr. 
Muttart.  Her  knowledge  of  the  doctor  might 
throw  lig^t  on  the  probability  that  she  would 
perform  an  abortion  on  a  gin  who  claimed  to 
have  been  sent  by  Dr.  Muttart." 

[3]  "It  was  permissible  to  use  the  speculum 
offered  in  evidence  to  illustrate  the  kind  of  an 
instrument  which  the  girl  said  the  defendant 
had  used." 

[4]  "The  defendant  was  not  injured  by  the 
charge  that  'the  fact  that  this  young  woman 
bad  a  previous  miscarriage  or  visited  some  one 
else  is  not  finally  to  affect  your  minds  in  deter- 
mining this  defendant's  guilt  If  she  had  99 
other  operations  and  somebody  else  had  gone 
free,  that  is  not  the  question.'  We  infer  that 
the  judge  was  trying  to  warn  the  jury  not  to 
convict  the  defendant  because  they  thought  some 
one  ought  to  be  punished.  It  seems  to  be  intend- 
ed as  a  warning  in  favor  of  the  defendant." 

[5]  "We  think  it  was  permissible  to  ssk  tlie 
defendant  if  she  couldn't  give  the  girl  somethinjg 
to  alleviate  the  pain.  The  defendant  had  testi- 
fied that  the  girl  had  come  to  her  suffering  pains 
of  pregnancy  and  wanting  her  to  perform  an 
abortion;  that  she  had  refused  to  do  so,  and 
offered  to  do  nothing  to  alleviate  the  pain.  The 
questions  bore  upon  tlie  probability  of  defend- 
ant's testimony,  since  the  prosecutor  niisht  well 
argue  that  the  natural  instinct  of  humanity 
would  lead  the  defendant  to  alleviate  the  pains 
if  she  was  unwilling  to  perform  the  ahortion. 

"Part  of  the  prosecutor's  examination  of  the 
complaining  witness  was  leading,  but  we  cannot 
say  there  was  any  legal  error  or  abuse  of  discre- 
tion. 

"The  judgment  must  be  affirmed." 

HamlU  &  Cain,  of  Jersey  City,  for  appel- 
lant Robert  S.  Hudspeth,  Prosecutor  of 
Picas,  of  Jersey  City,  for  tbe  State. 

PER  CURIAM.  The  judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  in  the  (pinion  of  the  Supreme  Court 


(90  N.  J.  Law,  176) 

ROUNSAVILI^E  v.  CENTRAL  R.  OF  NEW 

JERSEY.  (No.  81.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(Byllabut  by  the  Court.) 

Master    and    Sebvant    4=3365— Wobrsien's 
Compensation  Act— Injury  in  Intebstate 
Commerce— Right  to  Compensation. 
The    federal    Employers'    Liability    Act    (Act 
April  22,  1908,  c.  149.  35  Stat.  65  [U.  S.  Comp. 
St.  1916,  §§  8G57-8665]),  wiUiin  its  scope,  viz. 
interstate  commerce,  deals  with  the  same  sub- 
ject that  Is  dealt  with  by  tbe  New  Jersey  Work- 
men's Compensation  Act  (Laws  1911,  p.  134) 


under  which  tiie  duty  of  an  employer  to  make 
compensation  to  an  employ^  for  injuries  arising 
out  of  the  employment  may  exist  independently 
of  the  negligence  of  the  employer ;  whereas  the 
federal  statute  makes  such  duty  to  depend  upon 
such  negligence  and  excludes  the  e^tence  of 
such  duty  in  the  absence  of  negligence.  "Bie 
federal  act  being  thua  comprehensive,  both  of 
those  cases  in  which  it  excludes  liability  and  of 
those  in  which  it  imposes  it  ousts  the  courts 
of  common  pleas  of  this  state  of  jurisdiction 
under  the  New  Jersey  Workmen's  Compensation 
Act  to  award  the  compensation  to  be  paid  by  a 
carrier  to  its  employ^  for  injuries  received  by 
the  latter  while  both  were  engaged  in  interstate 
commerce. 

Appeal  from  Supreme  Court 

Proceedings  under  the  Workmen's  Oompen- 
sation  Act  by  George  A.  Rounsaville,  to  ot^■ 
tain  compensation  for  personal  Injuries,  op- 
posed by  the  Central  Railroad  of  New  Jersey, 
employer.  From  a  Judgment  of  the  Supreme 
Court  (87  N.  J.  Law,  371,  94  Ati.  392),  on  cer- 
tiorari to  a  judgment  of  the  common  pleas 
denying  compensation,  reversing  the  judg- 
ment and  remanding  the  case,  tbe  employer 
appeals.  Judgment  of  the  Supreme  Court  ^<^- 
versed,  and  judgment  of  the  common  pleas 
affirmed. 

Charles  E.  Miller,  of  Jersey  (Tlty,  for  ap- 
pellant Elinor  R.  Gebhardt  of  Jersey 
City,  for  appellee. 

GARRISON,  J.  The  respondent,  a  brake- 
man  on  the  appellant's  train  under  a  con- 
tract made  In  this  state,  was  injured  In  the 
course  of  bis  employment  in  Pennsylvania, 
while  appellant  and  he  were  engaged  In  in- 
terstate commerce.  His  petition  to  tbe  com- 
mon pleas  of  Warren  county  for  compensa- 
tion under  the  New  Jersey  Workmen's  Oom- 
pensation  Act  was  dismissed  by  Judge  Rose- 
berry  upon  the  ground  that  the  enactment  by 
Congress  of  the  federal  Ehnployers'  Liability 
Act  prevented  the  application  of  state  legLs- 
lation  to  an  injury  received  In  the  coarse  of 
interstate  commerce.  Upon  appeal  the  Su- 
preme Court  held  that  this  was  not  so,  and 
the  Judgment  of  tbe  pleas  was  reversed. 
Rounsaville  t.  C!aitral  Railroad  Ckk,  87  N. 
J.  Law,  371,  94  Ati.  892.  From  the  Judgmoit 
of  the  Supreme  Court  this  appeal  was  taken 
and  argued  before  this  court  at  the  November 
term,   1916. 

The  decision  of  this  appeal  was  held  await- 
ing the  decision  by  the  Supr^ne  Court  of  the 
United  States  of  the  case  of  Erie  Railroad 
Company  v.  Wlnfteld,  wbldi  involved  precise- 
ly the  questions. 

That  decision  has  now  been  promulgated 
in  an  opinion  filed  by  Mr.  Justice  Van  Devan- 
ter,  244  U.  8.  170,  37  Snp.  Ct  656,  61  U  £kl. 
1057,  in  which  it  is  held  that: 

"The  federal  act  (Employers'  Liability  Act> 
proceeds  upon  the  principle  which  regards  neg- 
ligence as  the  basis  of  tlie  duty  to  make  cona- 
pnnsation,  and  excludes  tbe  existence  of  such  a 
duty  in  the  absence  of  negligence,  and  that  Con- 
gress intended  the  act  to  be  as  comprehensive  of 


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183 


those  instances  in  which  It  excludes  liability  as 
of  those  in  whicb  liability  is  imposed." 

A  further  question  decided  was  whether  or 
not  under  the  New  Jersey  Workmen's  CJom- 
pensatlon  Act  the  Interstate  carrier  might  be- 
come bound  contractually  to  make  compensa- 
tion to  an  employ^,  even  though  such  In- 
Jury  came  within  the  federal  act  as  above 
-construed.  Upon  this  question  Mr.  Justice 
Van  Devanter  says: 

"It  is  beyond  the  power  of  any  state  to  inter- 
fere with  the  operation  of  that  act  (federal  Em- 
ployers' Act),  either  by  patting  tbe  carriers  and 
their  employes"  in  interstate  commerce  "to  an 
election  between  its  provisions  and  those  of  a 
state  statute,  or  by  imputing  such  an  election 
to  them  by  means  of  a  statutory  presumption." 

This  decision  by  the  highest  federal  court 
as  to  the  construction  of  a  federal  statute  Is 
binding  upon  this  court,  and  leads  to  tbe 
reversal  of  the  judgment  brought  up  by  this 
appeal  and  the  affirmance  of  the  judgment  of 
the  common  pleas  of  Warren  county. 

<i)0  N.  J.  Law,  «S) 

ROGERS  V.  WARRINGTON.    (No.  70.) 

iConrt  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  191T.) 

(SyllahuM  ij/  the  Court.) 

1.  Highways  ®=>S0  —  Abuttino  Owneb  — 
Fee. 

Lends  in  New  Jersey  over  which  hiehways 
have  been  laid,  tbe  fee  of  the  land  is  in  the 
abutting  owner. 

[Ed.  Note.— For  other  cases,  see  Highways, 
<^t  Dig.  {{  288.  280.] 

2.  Ejectment  <E=>9(6)— Title— Feb  in  Hiqh- 

WAI. 

The  owner  of  tbe  fee,  for  the  soil  in  the 
highway,  may  maintain  an  action  of  ejectment 
against  any  pei-son  wrongfully  taking  or  claim- 
ing exclusive  possession  of  the  same. 

[Ed.  Note. — For  other  cases,  see  Ejectment, 
Cent  Dig.  $  2&] 

3.  Pleadino  «=>127(1)— Plea  of  Not  GviXJTt 
—Admission. 

By  tho  statate  (Comp.  St  1910,  vol.  2,  p. 
2060,  par.  13),  in  an  action  of  ejectment  for 
land  occupied  by  the  defendant,  a  plea  of  not 
guilty  admits  such  possession  as  excludes  tbe 
plaintiff. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  K  261-268.] 

Appeal  from  Supreme  Coart 

Action  In  ejectment  by  Jcrusha  B.  Rogers 
against  Susan  N.  Warrington.  Judgment 
for  plaintiff,  and  defendant  appeals.  Af- 
firmed. 

Kalghn  &  Wolverton,  of  Camden,  for  ap- 
pellant Q.  M.  HUlman,  of  Mount  Holly,  for 
appellee. 

BI4AOK,  J.  This  was  an  action  in  eject- 
ment. Tbe  record  shows,  however,  that  the 
.plaintUI  was  tbe  owner  of  a  lot  of  land,  upon 
which  ber  dwelling  house  was  erected, 
situate  on  tbe  south  side  of  Main  street,  at 
tbe  forks  of  the  road  known  as  Perkins  Cor- 
ner in  Moorestown,  Chester  township.  Bur- 


lington county,  N.  J.  The  suit  was  brougbt  to 
recover  possession  of  the  land,  In  tbe  public 
highway,  In  front  of  the  plaintiffs  lot 

[3]  The  defendant  erected  a  public  drink- 
ing fountain  or  watering  trough,  in  the  high- 
way, tie  fee  of  which  was  owned  by  the 
plaintiff.  Tbe  suit  was  brougbt  to  recover 
that  portion  of  the  highway,  thus  appropriat- 
ed by  tbe  defendant,  by  tbe  erection  of  the 
drinking  fountain  or  watering  trough.  Tbe 
answer  defends  the  action,  as  to  a  part  of 
tbe  premises  claimed  In  the  complaint,  viz. 
tbe  portion  thereof,  within  tbe  lines  of 
Main  street,  occupied  by  tbe  public  drinking 
fountain,  erected  by  consent  of  tbe  municipal 
authorities,  as  to  which  part  the  defendant 
denies  the  truth  of  tbe  matters  contained  in 
tbe  complaint.  By  force  of  the  statute,  Comp. 
Stat  of  N.  J.  vol.  2,  p.  2056,  par.  13,  the 
plea  for  the  purpose  of  this  action  is  an  ad- 
mission that  the  defendant  was  in  possession 
of  the  premises  for  which  she  defends. 
French  v.  Robb,  67  N.  J.  Law,  260,  51  Atl. 
509,  57  U  R.  A  906,  91  Am.  St  Rep.  433; 
Jacobson  v.  Hayday,  83  N.  J.  Law,  537,  83 
Atl.  902. 

[1]  The  case  was  tried  by  tbe  court  at  tbe 
circuit,  without  a  Jury,  resulting  in  a  Judg- 
ment for  the  plaintiff;  the  damages  being 
assessed  at  six  cents.  Tbe  plaintiff's  title 
to  tbe  fee  of  tbe  premises  in  question  being 
conceded,  tbe  plea  admitting  tbe  defendant 
was  in  possession,  tbe  ruling  of  the  trial 
court  was  not  error  in  giving  judgment  for 
the  plaintiff. 

It  is  tbe  accepted  law  of  this  state  that 
lands  on  which  streets  and  highways  have 
been  laid,  tbe  fee  is  in  tbe  abutting  owner. 
Hoboken  Lend  &  Improvement  Co.  v.  Mayor, 
etc.,  of  Hoboken,  86  N.  J.  Law,  640;  Starr 
V.  Camden,  etc.,  R.  Co.,  24  N.  J.  Law,  592. 

[2]  It  also  has  long  be«i  the  settled  law  of 
this  court  that  tbe  owner  of  tbe  soil  in  such 
cases  may  maintain  an  action  of  ejectment 
against  any  person  wrongfully  taking  or 
claiming  exclusive  possession  of  the  same. 

All  tbe  cases  are  in  harmony  on  this  point 
Wright  V.  Carter,  27  N.  J.  Law,  76 ;  Hoboken 
Land  &  Improvement  Co.  v.  Mayor,  etc.,  of 
Hoboken,  36  N.  J.  Law,  540;  French  t.  Robb, 
67  N.  J.  Law,  260,  61  AU.  509,  57  I*  R.  A. 
9^,  91  Am.  St  Rep.  433;  Bork  v.  United 
New  Jersey,  etc.,  Co.,  70  N.  J.  Law,  268,  67 
Atl.  412,  64  L.  R.  A.  836,  103  Am.  St  Rep. 
808, 1  Ann.  Cas.  861 :  Moore  v.  Camden,  etc.. 
Ry.  Co.,  73  N.  J.  Law,  599,  04  Atl.  116; 
Johanson  v.  Atlantic  OUy.  R.  Co.,  73  N.  J. 
Lew,  767,  64  Atl.  1061. 

Whether  tbe  drinking  fountain  or  watering 
trough  Is  an  additional  servitude  on  t^  land 
to  that  of  tbe  highway  is  not  before  ns  for 
consideration  on  this  record.  We  therefore 
express  no  opinion  on  that  point 

Finding  no  error  in  the  record,  the  Judg- 
ment of  tbe  Supreme  Court  is  therefore  af- 
firmed, with  costa 


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101  ATLANTIC  REPORTER 


(N.J. 


(90  N.  J.  Law,  e96) 

KOESTIGSBBRGER  v.  MIAU    (No.  75.) 

(C!ourt  ot  Brron  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

1.  Plbadino  ^=9366  —  Amended  PiXADiNa^ 
Notice  of  Pimno— Presumption. 

Where  20  days  after  the  filing  of  an  amend- 
ed complaint  defendant  moved  to  strike  ont  cer- 
tain portions  thereof,  she  was  presumed  to  hare 
had  notice  that  it  was  filed, 

[B)d.  Note — For  other  cases,  see  Pleading, 
Cent.  Dig.  {  llC] 

2.  Pleading  9=9365(3)— Motion  to  Stbikh— 
Abandonment. 

Defendant's  failure  to  enter  a  rale  in  ac- 
cordance with  a  decision  of  the  court  in  her  fa- 
vor on  a  motion  to  strike  out  certain  parts  of 
the  amended  complaint  was  an  abandonment  of 
her  motion. 

[£)d.  Note. — For  other  cases,  see  Pleading, 
Cent.  Dig.  §§  1108,  116».] 

3.  Judoment  <S=>106  —  Default  —  Riqbt  to 
Enter. 

Where  defendant  abandoned  her  motion  to 
strike  out  certain  parts  of  the  amended  com- 
plaint and  failed  to  plead  to  such  complaint 
within  the  time  specified  by  the  court's  order, 

Elaiutiff  was  entitled  to  take  judgment  against 
er  by  default 

[Bid.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  {  201.] 

4.  Judgment  «=»145(2)— Default— Riobt  to 
Enter. 

That  defendant's  failure  to  plead  to  the 
amended  complaint  as  required  by  law  was  due 
to  neglect  of  her  attorney  did  not  entitle  her  to 
have  the  default  judgment  opened,  where  she 
did  not  show  that  she  had  a  meritorious  de- 
fense. 

[Eli.  Note. — For  other  cases,  see  Judgment, 
Cent  Dig.  U  271,  293.] 

Appeal  from  Supreme  Court. 

Action  by  Ferdinand  H.  Koenlgsberger 
against  Kate  A.  Mlal,  Individually  and  as 
executrix  of  the  last  will  and  testament  of 
Henry  H.  Hanklns,  deceased,  bnllder  and 
owner.  From  judgment  for  plaintiff,  defend- 
ant appeals.    Affirmed. 

The  following  Is  the  per  curiam  opinion 
of  the  Supreme  Court: 

"This  is  an  appeal  from  a  judgment  entered 
by  default  against  the  defendant  in  an  action 
brought  by  the  plaintiff  to  recover  for  architect's 
fees  alleged  to  be  due  him  on  a  building  opera- 
tion. Originally  the  suit  was  brought  against 
Kate  A.  Miol  individually,  and  Lieonidas  Ik 
Mial  as  executor  of  Henry  U.  Hanking,  deceas- 
ed. The  complaint  was  filed  in  September, 
1913.  Subsequently,  and  in  March,  1914,  ap- 
plication was  made  on  behalf  of  the  defendants 
to  compel  the  amendment  of  the  complaint  by 
striking  therefrom  the  name  of  Leonidas  A. 
Mial,  and  substituting  that  of  Kate  A.  Mial  as 
executrix.  The  rule  directing  the  amendment 
required  a  copy  thereof  to  be  served  upon  Kate 
Mial  within  20  days  after  its  date,  and  allow- 
ed her  20  days  after  such  service  within  which 
to  file,  her  answer.  The  date  of  this  rule  was 
March  30,  1914.  The  amended  complaint  was 
filed  on  the  15th  day  of  April  of  that  year. 
On  the  15th  of  May  following  the  defendant 
moved  to  strike  out  certain  portions  of  the 
amended  complaint  for  reasons  set  forth  in  a 
notice  of  the  motion  which  was  served  upon  the 
plaintiff's  attorney  on  the  5th  day  of  that  month. 
The  court  took  time  to  consider  the  motion,  and 
on  the  19th  day  of  Jane  filed  a  memorandum, 


stating  that  the  defendant  was  entitled  to  have 
struck  from  the  complaint  the  provisions  refer- 
red to  in  her  notice  of  motion.  No  rule  was 
entered  pursuant  to  this  finding  of  the  court, 
nnd  on  the  17th  of  November,  1914,  the  plain- 
tiff entered  judgment  by  default.  The  de- 
fendant Kate  Mial,  thereupon  applied  for  and 
obtained  a  rule  to  show  cause  why  the  judg- 
ment should  not  be  opened  as  having  been  pre- 
maturely and  improvidently  entered.  Testimony 
was  taken  in  support  of,  and  in  opposition  to, 
the  making  of  this  rule  absolute,  and  in  Janu- 
ary, 1916,  the  matter  coming  on  to  be  heard 
before  the  circuit  court,  the  rule  to  show  cause 
was  discharged.  The  defendant  thereupon  ap- 
pealed to  this  court" 

[1-3]  "We  think  the  judgment  under  review 
should  be  affirmed.  On  its  face  it  is  regular. 
Tlie  defendant  is  presumed  to  have  had  notice 
ot  the  filing  of  the  amended  complaint,  because 
within  20  days  after  its  filing  she  moved  to 
strike  out  certain  portions  thereof.  Her  failure 
to  enter  a  rule  in  accordance  with  the  decision 
of  the  circuit  court  in  her  favor  on  the  motion 
to  strike  out  certain  parts  of  the  amended  com- 
plaint was,  we  think,  an  abandonment  of  the 
motion.  Having  abandoned  the  motion,  and 
having  failed  to  plead  to  the  amended  complaint 
within  the  time  specified  by  the  order  of  the 
court,  the  plaintiff  was  entitled  to  take  judgment 
aprainst  her  by  default  According  to  the  theory 
of  the  defense,  a  suit  might  be  perpetually  stay- 
ed by  a  defendant  by  following  the  course  pur- 
sued in  the  present  case  by  Kate  A.  Mial,  the 
appeUant.  Without  stopping  to  consider  wheth- 
er, on  an  appeal  from  the  judgment  now  under 
review,  the  appellant  can  attack  the  action  of 
the  lower  court  in  discharging  the  rule  to  show 
cause,  we  are  of  opinion  that  the  action  com- 
plained of  was  proper." 

[4]  "If  it  be  true,  as  counsel  suggests,  that 
the  failure  of  the  defendant  to  pursue  her  de- 
fense as  required  by  law  was  due  to  the  neglect 
of  her  attorney,  that  fact  alone  did  not  entitle 
her  to  the  relief  she  sought  under  the  rule.  She 
was  required,  in  addition,  to  show  that  she  had 
a  meritorious  defense,  and  this  the  circuit  court 
considered  she  had  failed  to  do.  Our  examina- 
tion of  the  testimcmy  submitted  under  the  rule 
to  show  cause  leads  us  to  the  same  conclusion. 

"The  judgment  under  review  will  be  affirmed." 

Samuel  A.  Besson,  of  Hoboken,  for  appel- 
lant Runyon  &  Autoireltli,  of  Jersey  City, 
for  appellee. 

PER  CURIAM.  The  judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  in  the  opinion  of  the  Supreme  Court. 


(90  N.  J.  I4tw,  tss) 
POX  T.  FORTY-FOUR  CIGAR  CO. 
(No.  30.) 

(CJourt  of  Errors  and  Appeals  ot  New  Jersey. 
June  18,  1917.) 

(Byllah»$  bt  th0  CourtJ 

1.  Witnesbks  <©=>321,  880(5)  —  Impeaobiitq 
Own  Witness— Contbadictino  Witness. 
While  a  party  cannot  impeach  a  witness 
called  by  him,  which  is  done  by  showing  by  gen- 
eral evidence  that  he  is  unworthy  of  belief,  he 
may  nevertheless  show  that  such  witness  has 
made  other  and  different  statements  from  those 
to  which  he  has  testified.  That  is  contradicting, 
not  impeaching,  the  witness. 

[£V].  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  §{  1094, 1099,  1100,  1214,  1219.] 


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N.JJ 


FOX  ▼.  POBTY-FOUR  CIOAR  CO. 


185 


2  WlTIIEBSBS      4=>10&(4)— PBITnAaS— AXTOK- 

vtt. 
A  commtmiciitlon  made  by  a  party  to  an  at- 
torney after  the  tatter's  employment  has  termi- 
nated is  not  privileged,  and  the  attorney  may  be 
compelled  to  disclose  the  information  ao  ac- 
quired. 

lEd.  Note.— For  other  caaes,  see  Witnesses, 
Cent.  Dig.  K  766.  767.] 

8.  Witnesses     ®=204(2!)— Pbivileqb— Attob- 

HEY. 

When  a  party  writes  a  letter  to  a  member  of 
the  bar,  whose  relation  as  counsel  to  the  former 
had  cea^,  if,  in  fact,  there  ever  had  been  such 
relationship  between  them,  which  letter  contain- 
ed statements  tending  to  prove  a  fact  concern- 
ing the  qaeation  of  master  and  servant,  vbicb 
was  pertinent  to  the  issue,  the  letter  is  not  a 
privileged  communication,  and  is  competent  evi- 
dence against  the  party  writing  it. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  §  792.] 

AM)eal  from  Supreme  Court. 

Action  by  Vorls  Fox  against  the  Forty- 
Foar  Cigar  Company.  Judgment  for  defend- 
ant on  a  directed  verdict,  and  plaintiff  ap- 
peals. Beversed  to  the  end  that  a  venire  de 
novo  may  (be  awarded. 

Bourgeois  &  Coulomb,  of  Atlantic  City,  for 
appeUaut  Clarence  U.  Cole,  of  Atlantic  City, 
for  appellee. 

WALKER,  Ch.  This  waa  an  action  at  law 
for  damages  growing  out  of  an  accident  to 
the  plaintiff  by  collision  with  an  automo- 
bile while  he  and  another  were  riding  on 
a  motorcycle  along  a  public  road  in  At- 
lantic county.  On  August  16,  1915,  the  plain- 
tiff and  his  companion  were  traveling  along 
the  road  in  the  motorcycle,  when  an  auto- 
mobile driven  by  a  director  and  officer  of  the 
defendant  company  approached,  and  a  colli- 
sion occurred,  which  demolished  the  motor- 
cycle and  Injured  the  plaintiff.  One  defense 
was  that  at  the  time  of  the  accident  the  car 
was  not  being  used  for  the  purposes  of  the 
defendant  company,  and  therefore  the  com- 
pany was  not  liable  to  the  plaintiff. 

During  the  progress  of  the  trial,  for  the 
purpose  of  showing  that  the  car  was  being 
used  for  the  puriwses  of  the  company,  and 
for  the  purpose  of  showing  an  Inconsistent 
statement  made  by  Max  Lipschutz,  the  as- 
sistant treasurer,  certain  letters  to  W.  Frank 
Sooy,  Esq.,  a  member  of  the  bar,  were  of- 
fered and  admitted  In  evidence.  After  the 
testimony  had  been  concluded,  the  letters 
were  excluded  by  order  of  the  court,  to  which 
ao  exception  was  noted.  The  Judge  then  di- 
rected a  vendlct  In  favor  of  the  defendant, 
to  which  exception  was  taken,  and  the  plain- 
tiff appealed. 

The  defendant  company  In  Its  answer  ad- 
mitted that  on  the  day  of  the  accident  It  was 
the  registered  owner  of  a  certain  touring  car 
which  was  being  driven  by  Max  Ivlpschutz, 
who  was  a  stockholder,  director  and  ctfttcer 
of  the  company,  but  denied  that  the  car  was 
being  driven  by  him  as  such  stockholder,  of- 
ficer, director,  agent,  or  employ^. 


Max  I,li)sdintz  was  called  by  the  plaintiff 
and  testified  that  he  was  assistant  treasurer 
of  the  defendant  company,  whose  president 
was  his  father,  Benjamin  Ldpschutz,  and 
whose  assistant  secretary  was  George  M. 
Lex ;  that  the  defendant  did  quite  extensive 
advertising  through  New  Jersey  by  signs.  He 
testified  to  the  genuineness  of  a  letter  dated 
December  15,  1015,  as  to  his  own  and  Lex's 
signatures  thereon.  Asked  what  was  the 
object  of  his  tour  through  South  Jersey  on 
the  day  In  question,  he  answered  that  he  had 
promised  his  sister,  who  was  sick,  a  little 
ride  and  outing  for  her  friends,  and  It  was 
for  that  purpose  alone  that  he  took  them  out 
that  afternoon.  Asked  whether  at  that  time 
he  was  engaged  on  the  business  of  the  com- 
pany, he  answered  that  he  always  lo<Aed 
around  (meaning  for  and  at  the  signs),  but 
tibat  the  idea  of  taking  them  out  that  day 
was  for  pleasure  alone.  He  could  not  re- 
member whether  he  stated  to  the  (^oers  of 
the  company  that  he  was  going  out  on  the 
business  of  the  company  that  day.  Shown 
the  letter  again,  and  asked  to  tell  whether  he 
Informed  the  secretary  that  he  was  out  on 
business  of  the  company  that  day,  be  first 
answered  "No,"  and  then  "Yes."  He  after- 
wards said  that  he  had  not  gone  oat  to  In- 
spect the  signs  on  that  day. 

W.  Frank  Sooy,  E^.,  counselor  at  law,  was 
called  by  the  plaintiff,  and  testified  he  was 
one  of  the  firm  of  Bolte,  Sooy  &  Gill;  that 
he  met  Mr.  iJpschutz,  Sr.,  and  Mr.  lApschutz, 
Jr.,  and  talked  the  situation  over  with  them ; 
that  he  was  notified  by  the  defendant  com- 
pany that  he  was  representing  Max  Llp- 
schutz ;  that  he  was  never  formally  employed 
by  the  company;  that  be  handed  the  letter 
in  question  to  Mr.  Stem,  who  was  associated 
with  Messrs.  Bourge<ds  &  Coulmnb,  attorneys 
for  the  plaintiff,  to  carry  out  an  agreement  he 
had  with  Mr.  Stem  as  to  the  form  of  answer 
that  would  be  filed  by  the  company,  leaving 
out,  as  defendants.  Max  lApschntz  and  his 
father. 

Benjamin  LIpschutz  testified  that  he  In- 
structed his  son.  Max,  on  the  day  In  question 
not  to  take  his  sister  out,  but  to  attend  to 
certain  business;  that  the  car  had  been  own- 
ed by  the  company  for  a  couple  of  years,  and 
was  bought  to  entertain  customers  and  for 
other  business;  that  It  was  used  by  his  son, 
by  Mr.  Funk  (secretary  of  the  company),  and 
Mr.  Lex;  that  It  was  primarily  bought  for 
the  purposes  of  the  company  and  the  benetit 
and  convenience  of  its  officers,  and  also  for 
the  purpose  of  taking  out  his  sick  daughter. 

In  view  of  the  testimony  of  the  Llpschntzea, 
father  and  son,  to  the  effect  that  the  young 
man  was  not  out  on  the  business  of  the  com- 
pany that  day.  It  became  highly  important  to 
the  plalntlh:  to  have  In  evidence  the  letter 
from  the  assistant  secretary  to  Mr.  Sooy,  in 
which  It  is  stated,  inter  alia,  that  Max  Llp- 
sdiutz  would  testify  at  the  trial  that  he  was 


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101  ATLANTIC  REPORTEB 


OX.  3, 


driving  the  car,  oomUnlng  both  bnslness  and 
pleasure.  The  following  Is  a  copy  of  the  let- 
ter: 

"Benjamin  Lipschutz,  President  and  Treasur- 
er. Mahlon  A.  Funk,  Sect'y  and  Sale*  Mana- 
ger. Max  Lipgchatz.  Assistant  Treasurer. 
Geortre  M.  Lex,  Aasistant  Secretary.  Forty- 
Four  Cigar  Company,  Incorporated.  Lipschutz'a 
44  Cigars.  Adlon  Cigars.  Business  Establish- 
ed by  Benjamin  Lipschuti  1893.  Main  Office 
and  Factory,  N.  B.  Cor.  11th  and  Wharton 
Streets,  Philadelphia.  P.  O.  Address,  Southward 
Station.  Address  all  communications  to  com- 
pany. December  15,  1915.  Bolte,  Sooy  &  Gill, 
21  Ijaw  Building,  Atlantic  City,  N.  J.  Atten- 
tion of  W.  Frank  Sooy.  Esq.  Gentlemen:  The 
writer  has  your  letter  of  the  13th  inst.  addressed 
to  Mr.  Max  Lipschutz.  The  answer  as  filed  by 
the  insurance  company  is  about  what  we  ex- 
pected, nevertheless,  the  policy  that  they  issued 
to  us  calls  for  business  and  pleasure,  and  as 
Mr.  Max  Lipschutz  was  an  officer  of  the  compa- 
ny, we  feel,  under  the  terms  of  the  contract,  that 
he  bad  a  perfect  right  to  drive  the  car.  You 
can  rest  assured  that  Mr.  Max  Lipschutz  at  the 
trial  will  testify.  First.  That  the  company 
owned  the  car.  Second.  That  be  was  driving 
the  car,  combining  both  pleasure  and  business. 
Third.  That  he  is  an  officer  of  the  company.  In 
order  to  fulfill  your  wishes  in  the  matter,  I  am 
having  a  postscript  in  this  letter  which  is  signed 
by  Mr.  Max  Lipschutz.  Very  truly  yours,  '44' 
Cigar  Company,  Inc.,  Geo.  M.  Lex,  Asst.  Sec. 
L-AH 

"P.  S.— W.  Frank  Sooy,  Esq.:  The  facts  as 
covered  by  Mr.  Lex  above  will  be  testified  to  by 
me  at  the  trial. 

"Very  truly  yours,  Max  Lipschutz." 

[1J  The  letter  was  offered  to  contradict 
Max  Lipschutz,  and  as  an  admission  by  the 
company.  Counsel  for  the  defendant  states 
in  bis  brief  that  there  is  not  the  slightest  evi- 
dence that  the  writer,  who  signed  himself 
"Assistant  Secretary,"  was  such,  or  that  he 
had  authority  to  bind  the  company.  This  Is 
evidently  a  misconception  on  the  part  of  the 
learned  counsel  who  argued  the  case  for  the 
defendant  Max  Lipschuts  testified  that  he 
was  the  a»!istant  treasurer,  and  that  Mr. 
Lex  was  the  company's  assistant  secretary. 
As  to  whether  they  had  authority  to  bind  the 
company  was,  in  all  the  circumstances  of  the 
case^  at  least  Inferable.  The  question  re- 
mains: Was  the  letter  properly  excluded? 
We  think  not.  It  should  have  been  admitted, 
and  the  case  submitted  to  the  jury. 

Counsel  (or  the  defendant  argues  that  the 
attempt  to  put  the  letter  in  evidence  was  for 
the  purpose  of  Impeaching  the  plaintiff's  wit- 
ness. This  Is  not  so.  The  attempt  was  to 
contradict  the  witness.  The  inhibition  Is 
only  that  a  party  calling  a  witness  will  not 
be  permitted  afterwards  to  Impeach  his  gen- 
eral reputation  for  truth  or  veracity  by  gen- 
eral evidence  tending  to  show  him  to  be  un- 
worthy of  belief.  IngersoU  v.  English,  66  N. 
J.  Law,  463,  49  Atl.  737.  A  party  to  a  suit 
Is  not  precluded  from  proving  the  truth  of 
any  particular  fact  by  competent  testimony 
In  direct  contradiction  to  that  to  which  any 
of  the  witnesses  called  by  him  may  have 
testified.  Schreiber  v.  Pub.  Serv.  Ry.  Co.,  89 
N.  J.  Law,  183,  98  AU.  3ia  It  Is  always  al- 
lowable to  show  that  a  witness  had  made 


other  and  diCFerent  statements  than  those  to 
which  he  testifies.  Vice  Chancellor  Pitney, 
in  Thorp  v.  Leibrecht,  56  N.  J.  Kq.  499,  at 
page  502,  39  AU.  361,  states  that  the  rule 
forbidding  a  party  calling  a  witness  to  offer 
evidence  for  the  purpose  of  impeaching  hla 
general  character  for  truth  and  veracity  falls 
far  short  of  forbidding  the  party  to  show  by 
any  legitimate  evidence  that  the  witness  has 
testified  to  wlut  Is  not  true  in  a  matter  ma- 
terial to  the  Issue.  This  rule  was  approved 
by  this  court  in  Buchanan  v.  Buchanan,  73 
N.  J.  Eq.  544,  at  page  546,  68  Atl.  780.  Al- 
though in  Thorp  v.  LeibrecU  and  Buchanan 
V.  Buchanan  the  witnesses  called  by  com- 
plainants were  defendants,  the  rule  Is  not 
restricted  to  such  witnesses,  that  Is,  wit- 
nesses who  are  adversary  parties,  but  is  as 
broad  as  the  statement  in  Buchanan  v.  Bu- 
chanan, at  page  546  of  73  N.  J.  Bq.,  at  page 
781  of  68  AU.,  that: 

"The  rule  against  impeachment  denies  the 
right  to  impeach  the  general  reputation  of  the 
witness  for  truth,  but  does  not  deny  the  right 
to  show  that  the  whole  or  any  part  ot  the  tes- 
timony of  the  witness  is  untrue." 

In  fact,  counsel  for  defendant  concedes 
this  in  his  brief,  where  he  says: 

"While  the  law  permits  one  who  calls  a  wit- 
ness to  contradict  him,  it  does  not  permit  Im- 
peachment" 

Impeochment,  as  shown,  is  an  attack  upon 
a  witness'  general  reputation  for  truth  and 
veracity ;  and  as  that  which  was  attempted 
In  this  case  was  not  such  an  attack,  but  only 
a  contradiction  of  the  witness'  statement, 
the  letter  was  admissible  upon  that  score. 

[2,  3]  It  is  nest  objected  on  behalf  of  the 
defendant  that  the  letter  was  a  privileged 
communication  by  defendant  addressed  to 
the  attorneys,  Messrs.  Bolte,  Sooy  k  Gill. 
While  addressed  to  them,  it  was  marked  for 
the  "Attention  of  W.  Frank  Sooy,  Esq.,"  who 
appears  to  have  had  charge  of  the  matter  bo 
far  as  bis  firm  was  concerned  with  It,  If  at 
all.  Mr.  Sooy  was  called  as  a  witness  by  the 
plaintiff,  and  asked  whether  he  or  his  Ornt 
represented  the  defendant  company,  and  an- 
swered that  he  would  rather  tell  what  they 
did;  that  he  did  not  know  how  to  answer 
the  question  rightly.  He  also  stated  that  he 
was  advised  that  he  was  representing  Max 
Lipschutz,  and  that  Judge  Starr,  he  thought 
it  was,  would  take  care  of  the  defendant 
company.  As  a  fact  Judge  Starr  did  rep- 
resent the  company,  filed  their  answer,  and 
tried  the  case.  It  is  a  fact  also  that  Mr. 
Sooy's  bill  was  made  to  Max  Lipschutz  and 
paid  by  him,  Besides,  if  Messrs.  Bolte,  Sooy 
&  Gill  were  retained  by  the  defendant,  their 
representative  capacity  ceased  on  December 
11,  1915,  when  they  received  a  letter  from 
the  defendant,  signed  by  the  assistant  secre- 
tary. Lex,  in  which  the  company  said: 

"Please  leave  the  insurance  company  attend 
to  looking  after  the  '44'  Cigar  Company's  inter- 
ests and  you  look  after  the  interest  of  Mr.  Ben- 
jamin Lipschutz  and  Mr.  Max  Lipschutz  person- 
ally, as  they  no  doubt  have  arranged  for." 


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MGHTCAP  ▼.  LEHIGH  VALLEY  B.  00.  OF  NEW  JBaElSBT 


187 


There  Is  no  prlvUege  as  to  communlcfttloiui 
made  to  an  attorney  after  his  employment 
bag  terminated.  4  Wigmore  on  Bvidenoe,  g 
2304;  40  Cy&  p.  2366. 

Tbese  two  letters  were  declarations  by  the 
company  which  were  admissible  in  evidence, 
the  one  of  December  11th  to  show  that  the 
firm  of  Bolte,  Sooy  &  Gill  did  not  represent 
the  defendant  company,  at  least  after  that 
date,  and  the  one  of  December  15th  that  the 
company  owned  the  car,  and  that  Max  Up- 
sdiutz  was  one  of  its  officers  who  bad  a 
right  to  drive  it,  and  was  driving  it  in  busi- 
ness as  well  as  pleasure. 

Tbii  remaining  contention  on  behalf  of  the 
defendant  is  that  the  testimony  failed  to  dis- 
close that  Max  Llpschutz,  the  driver  of  the 
automobile  at  the  tUne  of  the  accident,  was 
a  gerrant  of  the  corporaticm  defendant,  en- 
gaged on  its  business.  Without  deciding  this 
qoestion  on  the  evidence  which  was  before 
the  conrt  at  the  time  of  the  direction  of  the 
rerdict  for  the  defendant,  it  is  apparent,  as 
stated,  that  if  the  letter  of  December  15, 
1915,  had  been  in  evidence,  it  might  have 
been  inferred,  if  the  jury  found  the  other 
qnestions  raised  by  the  pleading  and  evi- 
dence In  fbvor  of  the  plaintiff,  that  the  de- 
fendant company  was  liable  for  the  conse- 
quences of  the  accident  which  was  the  sub- 
ject of  the  controversy  in  the  suit.  Ko  cita- 
tion of  authority  is  necessary  to  support  so 
plain  a  proposition. 

The  letter  of  December  8,  1016,  from  the 
defendant  company  to  Messrs.  Bolte,  Sooy  & 
(rill,  whldi  is  referred  to  in  the  letter  of  De- 
cember 11th,  and  which  indicates  that  that 
llrm  represented  the  Llpfschutzes,  father  and 
son,  and  not  the  defendant  company,  was 
pertinent  evidence,  and  should  have  be«i  ad- 
mitted; not  so  the  letter  of  January  25,  1916, 
written  to  Messrs.  Bolte,  Sooy  &  Gill  by  Max 
Llpschutz  personally,  in  which  he  inclosed 
his  own  check,  with  thanks  to  Mr.  Sooy,  or 
the  firm  (it  not  being  stated  which)  for  serv- 
ices rendered.     Tills  was  properly  excluded. 

The  Judgment  of  the  court  below  must  be 
reversed,  to  the  ead  that  a  ventre  de  novo 
may  be  awarded. 


<30  N.  J.  Uw,  620) 

LIGHTCAP  et  al.  v.  LEHIGH  VALLET  R. 

CO.  OP  NEW  JERSEY. 

(No.  38.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(SylUihut  by  {he  Court.) 

Mttnicipal  Corporations  ®=»808(5),  819(2)— 
Defective  Sidewalk  —  Irjubt  to  Pedes- 

TftlAN— LlABIUlT. 

The  defendant  owniiif  a  tract  of  land^  upon 
which  was  located  a  freight  shed,  filled  m  the 
land  80  a«  to  change  its  topography  and  the  di- 
rection of  the  flow  of  surface  water  therefrom. 
Snow  having  accumulated  on  the  retaininir  wall 
of  the  embankment  erected,  the  water  uowed 
therefrom  over  the  adjacent  sidewalk  and  froze 


thereon.  The  plaintiff  while  walking  on  the 
sidewalk  slipped,  fell,  and  was  injured.  In  an 
action  to  recover  for  the  injuries,  the  trial  court 
charged  the  jury  that  unless  there  was  affirma- 
tive proof  in  the  case,  from  which  they  could 
infer  that  the  ice  upon  the  sidewalk  was  caused 
by  melting  snow,  which  had  been  transported 
from  another  locality  to  the  defendant's  prem- 
ises, there  could  be  no  recovery ;  and  also  that 
the  mere  presence  of  piles  of  snow  upon  defend- 
ant's wall  presented  no  proof  that  the  snow 
had  been  carried  thereto  from  another  place  by 
the  defendant  or  its  agents.  Held,  that  the  in- 
structions of  the  court  in  these  particulars  were 
correct. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1686.] 

Appeal  from  Supreme  Court. 

Action  by  Ava  Llghtcap  and  others  against 
the  Lehigh  Valley  Bailroad  Company  of  New 
Jersey.  Judgment  for  defendant,  and  plain- 
tiffs appeal.    Affirmed. 

See,  also,  87  N.  J.  Law,  64,  94  AtL  35. 

William  C.  Gfebhardt,  of  Jersey  City,  for 
appellants.  Smith  &  Brady,  of  Pblllipsburg, 
for  appellee. 


IflNTURN,  J.  While  walking  along  Mer- 
cer street,  in  the  town  of  Pblllipsburg,  the 
appellant  fell  and  injured  her  kneecap.  She 
attributed  the  accident  to  the  dangerous  con- 
dition of  the  walk,  owing  to  the  accumulation 
of  ice  thereeon,  caused  as  she  alleges  by  the 
wrongful  act  of  the  defendant  in  causing  to 
be  brought  an  accumulation  of  snow  upon  its 
lands,  adjoining  the  walk,  which  snow  in 
the  process  of  melting  flowed  upon  the  side- 
walk, thereby  creating  a  public  nuisance,  and 
causing  the  injury  In  question. 

The  facts  elicited  from  the  testimony  show : 
That  the  defendant  was  owner  of  a  tract  of 
land  which  was  used  by  it  for  a  freight  sta- 
tion. That  it  filled  in  the  tract  to  such  an 
extent  as  to  work  a  change  in  the  topography 
of  the  land,  and  to  cause  the  surface  water  to 
run  in  a  southerly.  Instead  of,  as  formerly,  in 
an  easterly,  course.  The  municipality  caused 
a  street  to  be  opened  along  the  easterly  line 
of  the  defendant's  property,  thereby  requiring 
the  excavation  of  the  earth  along  defendant's 
line,  which  In  turn  necessitated,  upon  de- 
fendant's part,  the  erection  of  a  stone  re- 
taining wall  along  the  line  of  the  sidewalk. 
The  snow  which  accumulated  upon  the  prop- 
erty was  precipitated  over  the  wall  in  the 
form  of  water,  and  running  upon  the  adjoin- 
ing sidewalk  became  frozen,  thereby  produc- 
ing the  condition  .which  caused  the  accident 
The  liability  of  the  defendant  was  predicated 
upon  the  theory  of  alleged  fact  that  it  had 
caused  quantities  of  snow  to  be  carried  upon 
or  near  its  wall,  which,  having  melted,  pro- 
duced the  condition  complained  of. 

It  will  be  observed  that  the  plaintiff  sought 
to  charge  the  defendant  with  liability  upon 
the  principle  enunciated  In  the  English  Ex- 
chequer, in  the  cases  of  Fletcher  v.  Rylands,  1 
L.  R.  Ex.  265,  3  H.  L.  330,  to  the  effect  that 


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101  ATLANTIC  REPORTER 


{H.3. 


one  who  for  his  own  purposes  brings  on  his 
lands,  and  keeps  and  collects  there,  anything 
likely  to  do  mischief  If  it  escape,  must  keep 
It  at  his  peril,  and.  If  he  fall  to  do  so,  Is 
prima  fade  answerable  for  all  damage  which 
is  the  natural  consequence  of  his  act  While 
this  doctrine  has  not  been  repudiated  as  a 
legal  principle,  it  has  been  placed  In  the  cate- 
gory of  vexatlo  questlo,  both  in  this  country 
and  In  England,  by  the  criticisms  of  the 
courts  and  the  text-writers,  as  a  principle  of 
law  fundamentally  unquestionable,  but  con- 
taining a  statement  too  generic  in  form  for 
practical  application,  as  a  test  of  legal  lia- 
bility, and  consequently  It  has  been  definitely 
qualified,  distinguished,  and  limited  by  tlie 
adjudged  cases  until  the  original  statement 
has  become  quite  attenuated.  Nicholas  v. 
Marsland,  2  Ex.  D.  1,  L.  R.  10  Ex.  255,  1  Ex. 
R.  a  272;  Loeee  v.  Buchanan,  51  N.  Y.  476, 
10  Am.  Rep.  623 ;  Gorham  t.  Gross,  125  Mass. 
240,  28  Am.  Rep.  224;  WUson  v.  New  Bed- 
ford, 108  Mass.  261,  11  Am.  Rep.  352 ;  CahUl 
V.  Eastman,  18  Minn.  324  (Gil.  292),  10  Am. 
Repw  184 ;  Cooley  on  Torts,  573 ;  14  Am.  U 
Rev.  1. 

In  this  state.  Chief  Justice  Beasley,  In 
MarshaU  v.  Welwood,  38  N.  3.  Law,  339,  20 
Am.  Dec.  394,  criticizes  it  on  the  ground  that 
it  is  a  rule  "mainly  applicable  to  a  class  of 
cases  which  I  think  should  be  regarded  as  in 
a  great  degree  exceptional."  In  the  case  In 
which  It  was  applied  In  the  Exchequer,  the 
trend  of  opinion  is  that  its  application  to  the 
situation  was  proper  and  Justifiable,  but  the 
consensus  of  opinion  in  later  cases  supports 
the  criticism  of  Chief  Justice  Beasley  that 
the  doctrine  enunciated  "is  amplified  and  ex- 
tended into  a  general,  if  not  universal,  prin- 
ciple," and  following  the  New  York  case  of 
Losee  v.  Buchanan,  supra,  he  held,  speaking 
for  our  Supreme  Court,  in  a  case  involving 
damages  cau.%d  by  the  explosion  of  a  boiler, 
that  in  principle  the  doctrine  was  inappli- 
cable. 

But  If  we  assume  that  the  doctrine  might 
be  applicable  to  tlT"  circumstances  of  the  case 
at  bar,  from  the  plaintlflf's  conception  of  it, 
we  are  met  by  the  controlling  fact  that  tn 
no  aspect  of  the  testimony  can  It  be  aflSrmed 
that  the  defendant  brought  uiKtn  Its  land  the 
cause  of  the  damage,  so  as  to  enable  the  plain- 
tiff to  invoke  the  rule  referred  to,  and  the 
doctrine  therefore  can  have  no  application 
here. 

The  conclusion  that  the  defendant  trans- 
ported the  snow  from  another  place  to  Its 
premises,  because  the  snow  was  heaped 
upon  the  wall,  at  a  i>eriod  of  the  year  .when 
snow  was  universal  in  the  neighborhood,  Is 
manifestly  a  non  sequitur,  and  rests  entirely 
upon  the  obvious  fallacy  that  because  the 
snow  was  there  the  defendant,  and  not  vis 
major  or  other  extraneous  cause,  brought  It 
there,  for  which  act,  under  the  many  qualify- 
ing cases  following  Fletcher  v.  Rylands,  legal 
reeponslbiUty  could  not  be  imposed  upon  a 


landowner  entirely  quiescent,  and  guUty  of 
no  active  tort-feasance. 

An  interesting  and  well-considered  r6sum6 
of  the  doctrine  herein  discussed,  particularly 
with  reference  to  the  liability  which  emanates 
from  the  application  of  the  '"■tI"',  "Sic 
utere  tuo  ut  allenum  non  isedas,"  and  its 
many  qualifications  in  practical  use  to  a  situa- 
tlon  like  the  present,  will  be  found  in  the  May 
number  of  the  Columbia  Law  Review,  p.  388 ; 
Nicholas  V.  Marsland,  2  Ex.  D.  1 ;  Penn  Coal 
Co.  V.  Sanderson,  113  Pa.  126,  6  Atl.  453,  57 
Am.  Rep.  445;   Marshall  v.  Welwood,  supra. 

In  this  aspect  of  the  case,  however,  as- 
suming the  rule  to  be  applicable  to  the  plain- 
tiff, she  manifestly  is  in  no  situation  to  com- 
plain, since  the  trial  court  allowed  the  case 
to  go  to  the  jury,  upon  a  charge  which  ex- 
pressly left  It  to  them  to  find,  as  the  test  of 
liability,  whether  or  not  the  defendant  had 
transported  the  snow  to  its  premises,  and 
they  found  to  the  contrary. 

In  contradistinction,  however,  to  the  doc- 
trine of  liability  thus  applied,  the  nonliability 
of  the  defendant,  for  damages  resulting  from 
the  mere  presence  of  the  snow  upon  its  prem- 
ises, in  the  absence  of  proof  of  active  tort 
feasance,  in  bringing  it  there,  has  been  set- 
tled beyond  controversy  by  the  pronounce- 
ments of  the  courts  of  this  state. 

This  court,  in  Jessup  v.  Bamford  Bros.  Co., 
66  N.  J.  Law,  641,  51  Atl.  147,  58  L.  R.  A.  329, 
88  Am.  St  Rep.  502,  in  an  opinion  by  the 
present  Chief  Justice,  approving  the  doctrine 
enunciated  by  the  Massachusetts  Supreme 
Court  in  Gainnon  v.  Hargadon,  10  Allen 
(Mass.)  106,  87  Am.  Dec.  025,  declared  that : 

"The  right  of  an  owner  of  land  to  occupy  and 
improve  it  in  such  manner,  and  for  such  pur- 
pose, as  he  may  see  fit,  either  by  changing  the 
surface  or  the  erection  of  buildings  or  other 
structures  thereon,  is  not  restricted  or  modified 
by  the  fact  that  his  own  land  is  so  situated,  with 
reference  to  that  of  adjoining  owners,  that  an 
alteration  in  the  mode  of  its  improvement  or 
occupation  in  any  portion  of  it  will  cause  water, 
whidi  may  accumulate  thereon  by  rains  ana 
snows  falling  on  its  surface,  or  flowing  onto 
it  from  tbe  surface  of  adjacent  lots,  either  to 
stand  in  unusual  quantities  on  other  adjacent 
lots  or  to  pass  into  or  over  the  same  in  greater 
quantities  or  in  other  directions  than  they  were 
accustomed  to  flow." 

And  tbe  general  doctrine  was  enunciated 
that: 

"The  obstruction  of  surface  water,  or  an  al- 
teration in  the  flow  of  it,  affords  no  cause  of 
action  in  behalf  of  a  person  who  may  suffer  loss 
or  detriment  therefrom  against  one  who  does  no 
Oct  inconsistent  with  tbe  due  exercise  of  domin- 
ion over  hia  own  soil." 

To  the  same  effect  are  Bowlsby  v.  Speer, 
31  N.  J.  Law,  351,  86  Am.  Dec  216;  Llgbtcap 
V.  Lehigh  Valley  R.  R.,  87  N.  J.  Law,  64.  94 
Atl.  33;  Sullivan  V.  Browning,  67  N.  J.  Eq. 
391,  58  Atl.  302. 

The  trial  court,  consistently  with  this  con- 
ception of  the  law,  instructed  the  jury  that, 
unless  they  could  find  from  the  te.stlmony 
that  the  defendant  carried  the  snow  from 


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HEYNIGER  r.  I^EVINSOHN 


189 


another  place  to  the  premises  In  question, 
thereby  causing  the  condll^lon  which  superln- 
daced  the  accident,  there  could  be  no  reoor- 

The  jviry  having  found  for  the  defendant, 
tbe  plaintiff  argues  that  the  trial  court  was 
In  error,  because  It  declined  to  charge  that 
the  defendant,  by  filling  In  the  land,  changed 
tbe  topography  of  the  premises,  and  Inciden- 
tally the  adjoining  lands,  so  as  to  cause  a 
change  in  direction  of  the  previously  exist- 
ing water  course,  thereby  causing  the  con- 
ditions complained  of.  As  has  been  stated, 
there  was  no  proof  that  the  defendant  or  its 
agent  had  transported  the  snow,  or  that  they 
had  in  any  manner  transposed  its  condition 
or  Its  original  status,  further  than  the  fact 
that  it  existed  In  piles  upon  the  wall,  which 
inddent,  as  we  have  Intimated,  was  neither 
convincing  nor  evidential  to  show  its  trans- 
ference from  elsewhere  to  the  premises  In 
question,  and,  as  we  have  observed,  the 
mere  fact  that  the  defendant  exercised  over 
his  land  an  indubitable  right  of  ownership 
In  changing  the  grade  or  slope  to  suit  the  de- 
fendant's convenience  or  necessities  In  the 
use  thereof  presents  no  ground  of  liability 
for  an  incidental  Injury  to  another,  but  is 
clearly  damnum   absque   injuria. 

"Affirmative"  evidence,  the  trial  court  de- 
clared, must  be  found  In  the  case  from  which 
an  Inference  could  be  rationally  drawn  that 
the  snow  on  the  wall  was  an  accumulation 
transported  to  tbe  premises  from  another 
locality,  and  to  this  direction  exception  is 
taken.  When  it  is  recalled  that  the  grava- 
men of  the  action  was  the  acUve  Interfer- 
oice  by  tbe  defendant  with  the  normal  situa- 
tion, by  the  transportation  to  its  premises 
of  an  element,  in  which  Inhered  the  possibili- 
ties of  danger  and  damage,  in  the  absence 
of  the  exercise  of  due  care  In  its  management 
and  control,  It  is  not  perceived  in  what  as- 
pect of  the  situation  the  use  of  the  adjective 
Id  question  can  be  characterized  as  either 
Inappropriate  or  misleading,  or  as  conveying 
any  definitive  meaning,  unless  it  be  consid- 
ered as  conveying  a  correct  indication  of  the 
quantum  and  quality  of  the  proof  necessary 
to  entitle  the  plaintiff  to  recover  under  the 
testimony,  and  the  rules  of  law  to  which 
we  have  adverted. 

The  Judgment  will  be  affirmed. 


(87  N.  J.  aq.  471} 

HBTNIGER  et  aL  v.  LBVINSOHN. 
(No.  37/228.) 

(Coart  of  Chancery  of  New  Jersey.     May  29, 
1917.) 

1.  Injunction  «=62(3)  —  Buh-mng  Restbio- 
Trows— Enfobcement. 
Where  defendant  had  knowledg"  of  a  build* 
lag  line  restriction  by  express  covenants  in  his 
deed,  and  was  familiar  with  a  preyious  decision 
upholding  the  right  to  enforce  the  restriction,  a 
mandatory  injnnction  will  be  granted  compelling 


him  to  tear  down  so  mneh  of  Us  building  as  is  a 
violation  of  the  restriction. 

[Ed.  Note. — For  other  cases,  see  Injunction. 
Cent.  Dig.  S  1^7.) 

2.  Injunctiow  «s=>113  —  Lzmtfation  and 
Laches. 

Where  complainants  upon  discovery  of  a 
violation  of  a  building  lice  restriction  took  steps 
to  enforce  it,  they  were  not  guilty  of  laches. 

[Ed.  Note. — For  other  cases,  see  Injunction, 
Cent  Dig.  S§  198-201.] 

3.  Covenants  ®=3l03(3)  —  Acquiescence  ob 
Estoppel  —  Vioiatiow  of  Building  Re- 
stbictionb. 

Although  tbe  acts  of  the  council  in  building 
a  pavilion  in  violation  of  a  building  line  restric- 
tion might  estop  the  municipality  from  enforcing 
the  restriction,  it  would  not  estop  property  own- 
ers not  concerned  therein. 

[Ed.  Note.— For  other  cases,  see  Covenants, 
Cent.  Dig.  |  169,] 

Bills  by  George  H.  Heynlger  and  others 
against  Abraham  Levlnsohn.  Decree  for 
complainants. 

Henry  H.  Snedeker,  of  East  Orange,  and 
Harry  R.  Cooper,  of  Belmar,  for  complain- 
ants. Patterson  &  Rhome  and  Durand,  Ivlns 
&  Carton,  all  of  Asbury  Park,  for  defendant 

LEWIS,  V.  O.  The  complainants  in  these 
cases  ask  that  a  mandatory  injunction  be 
granted,  compelling  the  defendant  to  tear 
down  or  remove  so  much  of  his  building  a^ 
Is  erected  nearer  the  line  of  Tenth  avenue 
than  20  feet  Both  actions  were  heard  to- 
gether. 

The  borougih  of  Belmar  includes  all  of  the 
property  originally  owned  by  the  Ocean 
Beach  Association.  The  property  of  this  as- 
sociation Is  located  south  of  Shark  river  and 
west  of  the  Atlantic  Ocean.  The  association 
laid  out  the  property  in  building  lots,  with 
streets  running  north  and  south,  and  avenues 
running  east  and  west  The  association  also 
caused  a  map  of  Its  property  to  be  made  and 
filed  In  tbe  office  of  the  Monmouth  county 
clerk.  The  streets  and  avenues  on  the  map 
are  the  same  to-day  In  Belmar.  The  Ocean 
Beach  Association  is  now  out  of  existence. 
It  was  incorporated  on  March  13,  1873.  P.  L. 
1873,  p.  1089.  It  was  authorized  to  purchase 
and  sell  lands,  and  was  especially  empowered 
to  require  any  grantee  from  it  to  make  and 
maintain  sudi  style  and  character  of  im- 
provements on  the  land  conveyed,  or  on  the 
streets  fronting  thereon,  as  might  seem  most 
expedient  for  securing  a  uniform  system  of 
development  and  Improvement.  The  associa- 
tion, on  June  9,  1873,  passed  a  resolution  as 
follows: 

Resolved,  that  it  is  highly  important  to  main- 
tain uniformity  in  the  line  of  buildings  on  the 
main  avenues  of  this  association,  and  for  secur- 
ing said  object  that  no  building  be  erected  on 
said  avenues  nearer  the  line  of  tlie  same  than 
twenty  feet. 

The  association  executed  and  delivered  740 
deeds,  each  of  which,  with  the  exception  of 
those  about  to  be  referred  to,  contain  this 
covenant: 


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190 


101  ATLAimO  REPORTBa 


(N.J. 


Subject,  nevertheless,  to  the  coTenasts,  condi- 
tions, and  restrictions  contained  in  the  aforesaid 
act,  entitled  "An  act  to  incorporate  Ocean  Beach 
Association";  and  the  said  party  of  the  second 
part,  for  himself,  his  heirs,  and  assigns,  does 
covenant  and  agree  to  and  with  the  said  Ocean 
Beach  Association,  their  successors  and  assigns, 
that  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  shall  not  sell,  or  suffer  to  be  sold, 
on  the  said  premises  hereby  conveyed  any  spirit- 
uous or  intoxicating  liquors,  nor  violate  any  of 
the  provisions  contained  in  the  said  act  of  in- 
corporation, by-laws,  rules,  or  regulations  made 
by  the  said  association  at  any  time. 

The  only  deeds  in  wblch  the  covenant  in  the 
above  form  do  not  appear  are:  Two  to  the 
mayor  and  council  of  Belmar,  for  proiierty 
for  public  parka ;  three  on  land  not  Included 
In  the  map  of  the  Ocean  Beach  property ;  two 
are  deeds  made  in  accordance  with  a  decree 
in  chancery  (one  of  the  property  along  the 
ocean,  between  Tenth  and  Eleventh  avennes, 
for  bathing  puriwses,  and  one  a  deed  by  the 
sheriff,  pursuant  to  a  judgment  In  an  ac- 
tion in  which  the  Ocean  Beach  Association  is 
party  defendant) ;  one  in  which  the  covenant 
was  omitted,  but  a  prior  deed  in  the  ctialn  of 
title  contained  it;  one  where  the  covenant 
appears,  and  also  an  additional  covenant  in 
regard  to  the  removal  of  a  building;  one 
where  the  word  "rules"  was  omitted;  and 
two  of  property  for  railroad  purposes. 

Tenth  avenue  is  one  of  the  principal  av- 
enues Included  In  the  resoluti(Hi  of  the  Ocean 
Bench  Association.  However,  all  of  the  av- 
enues have  been  construed  to  be  main  av- 
enues, and  the  restriction  applies  to  ail  of 
them.  The  general  plan  to  obtain  and  compel 
uniformity  in  the  building  line  for  the  bene- 
flt  of  every  person  to  whom  the  said  Ocean 
Beach  Association  sold  a  lot  has  been  main- 
tained. The  testimony  clearly  shows  this.  It 
is  established  that  most  of  the  houses  were 
erected  with  the  main  body  of  the  building  lo- 
cated with  reference  to  the  building  line.  Tliat 
the  restrictive  covenant  does  not  apply  to 
c^en  porches,  bay  windows,  and  eaves  is  a 
construction  put  upon  it  by  those  in  authority 
and  the  contractors  in  the  borough  of  Belmar. 
The  late  Vice  Chancellor  Emery,  in  Morrow 
T.  Hasselman,  68  N.  J.  Eq.  612,  61  Atl.  369, 
held  that  immaterial  violations  of  the  restric- 
tions, not  showing  an  intention  to  abandon 
the  plan,  are  no  defense  to  an  action.  In 
other  words,  that  slight  and  immaterial  vio- 
lations of  the  restrictive  covenant  would  not 
be  considered,  unless  they  went  to  the  extent 
of  showing  a  general  abandonment  of  the 
restrictions  by  the  owners  of  the  property 
alon;;  the  line  of  the  thoroughfare  I  do  not 
find  from  the  evidence  before  me  that  there 
has  been  an  abandonment.  It  is  apparent  that 
the  original  grantor  who  first  imposed  the 
restrictions  upon  the  property  has  done  noth- 
ing which  would  Indicate  an  intention  upon 
Its  part  to  disregard  the  covenant. 


[1]  The  evidence  clearly  discloses  that  the 
defendant  knew  of  the  building  restriction. 
The  express  covenant  in  his  deed  in  Itself 
would  be  sufficient  to  give  him  notice;  and 
his  testimony  shows  that  before  be  com- 
menced the  erection  of  his  building  he  had 
full  knowledge  of  the  building  line  restric- 
tion. He  says  in  one  part  of  his  evidence 
that  he  asked  the  mayor,  Mr.  Poole,  what  he 
thought  about  his  going  over  the  building 
line  in  erecting  his  structure,  and,  further,  if 
he  would  stand  for  it  he  would  put  it  up 
In  that  way.  He  then  claims  that  he  ob- 
tained permission  from  the  mayor  to  do  so; 
but  this  is  expressly  denied  by  Mr.  Poole. 
And  the  fact  that  he  (Poole)  immediately  had 
a  surveyor  place  stakes  on  the  lot  would 
seem  to  negative  any  consent.  The  defend- 
ant was  thoroughly  informed  about  the  situa- 
tion before  be  began  operations  on  his 
ground.  In  fact,  he  states  that  he  knew  of 
the  restrictions  before  he  bought  the  land, 
and  was  familiar  with  the  case  of  Newbery  y. 
Barkalow,  76  N.  J.  Bq.  128,  71  AtL  752,  in 
which  the  late  Vice  Cliancellor  Howell  had 
the  same  building  line  restriction  under  con- 
sideration and  upheld  the  right  to  enforce  It 
The  testimony  of  other  witnesses  also  shows 
the  defendant's  knowledge  of  the  restriction. 

[2]  I  do  not  think  the  complainants  have 
been  guilty  of  laches,  for  steps  seem  to  have 
been  taken  by  them  to  enforce  the  restriction 
immediately  upon  discovery  of  the  violation 
by  the  defendant.  The  defendant  proceeded 
at  his  peril,  in  an  apparent  disregard  of  all 
other's  rights.  He  took  bis  chances  on  the  ef- 
fect of  his  conduct,  with  knowledge  of  the  de- 
cision in  the  Newbery  Case. 

[3]  It  does  not  appear,  although  many  new 
buildings  that  have  been  erected  on  Tenth 
avenue  since  the  Newbery  Case,  that  any  of 
them  have  been  located  with  the  main  foun- 
dation wall  projecting  beyond  the  bulldtag 
line.  Barring  the  erection  of  these  new 
buildings,  the  conditions  remain  about  the 
some  as  at  the  time  the  Newbery  Case  was 
decided.  I  cannot  find  that  the  complainants 
are  estopped  by  the  erection  of  the  Buhler 
pavilion.  The  evidence  does  not  appear  to 
disclose  that  it  is  located  on  Tenth  avenue; 
but  if  it  was,  and  the  act  of  the  council  In 
this  operated  as  a  bar  to  the  municipality,  it 
could  not  estop  its  cocomplalnants  Wlldman 
and  Newman,  and  the  complainant  Hey- 
nlger. 

There  has  been  shown  a  general  intention 
on  the  part  of  the  borough  and  of  the  parties 
owning  land  along  the  avenues  to  keep  alive 
and  observe  the  building  line  restriction,  and 
the  Newbery  Case  is  binding  upon  me. 

The  decree,  therefore,  will  be  for  the  com- 
plainant. 


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N.JJ 


HIRSCHBERG-  ▼.  FLUSSBR 


191 


(V  S.   3.  Bq.  ESS) 

HIRSCHBERO  r.  PLTJSSEEU     (No.  48/8«a) 

(CoQit  of  Chancery  of  New  Jersey.     June  21, 
1917.) 

IRJTJKCTION  ®=)50  — Remedy  at  Law  — R«- 

MOVAL  OF  ENCROACHMENTA. 

Where  defendant  has  encroached  apoa  plain- 
titPa  land  by  building  a  foundation  wall,  under- 
neath the  surface,  of  stones  so  large  that  they 
form  part  of  defendant's  building  on  defendant's 
land  so  that  it  is  impossible  to  remove  them 
without  trespassintr  on  his  land  and  injuring  his 
building,  and  plaintiff's  title  and  right  have  been 
■ettled  in  an  ejectment  suit,  there  oeing  no  ade- 
quate remedy  at  law,  a  mandatory  injunction 
will  issue  to  compel  defendant  to  remove  the 
wall. 

[Bid.  Note.— For  other  cases,  see  Injunction, 
Cent  Dig.  {  103.] 

Suit  by  Joseph  Hlrschberg  against  Ben- 
jamin Flusser.  On  motion  to  strike  out 
bill.    Motion  carried  over  until  final  hearing. 

Philip  J.  Schotland,  of  NewarK,  for  com- 
plainant. Samuel  Roessler,  of  Newark,  for 
defendant 

LANE,  V.  C.  This  is  a  motion  to  strike 
out  a  bill.  The  bill  alleges  that  complainant 
Is  the  owner  of  certain  property;  that  de- 
fendant, who  Is  the  owner  of  a'djolnlng  proi>- 
erty,  on  or  about  May  3,  1911,  intending  to 
build  an  addition  to  bis  building,  excavated 
to  a  depth  of  24  feet,  and  in  so  doing  exca- 
vated a  portion  of  complainant's  property 
substantially  26  feet  5  Inches  by  9  Inches; 
that  defendant  then  proceeded  to  build  on 
his  own  land  and  also  on  the  land  of  com- 
plainant Ills  foundation  and  side  wail  up  to 
the  level  of  the  ground,  but  that  above  the 
levd  of  the  ground  the  defendant  cbntinued 
with  his  buifding  on  his  own  land;  that 
about  the  3d  day  of  July,  1911,  complain- 
ant brought  suit  in  the  New  Jersey  Supreme 
Court  to  recover  possession  of  the  land  oc- 
cupied by  defendant's  foundation  and  side 
wall  below  the  level  of  the  ground,  and  on 
the  25th  day  of  September,  1913,  procured  a 
ju'dgment  against  the  defendant,  and  it  was 
therein  found  that  the  complainant  was  en- 
titled to  recover  the  possession  of  the  prem- 
ises referred  to  in  the  bill  of  complaint;  that 
the  defendant  did  not  remove  the  founda- 
tion wall  or  side  wall,  and  the  complainant 
has  been  unable  by  means  of  execution  to 
get  the  sherifC  of  the  county  of  Essex  to  re- 
move such  encroachment,  because  a  large 
part  of  the  wall  which  encroaches  on  the  com- 
plainant's land  is  built  with  stones  so  large 
that  tJiey  not  only  encroach  upon  complain- 
ant's land  but  extend  into  and  form  part  of 
the  wall  of  defendant's  building  on  defend- 
ant's land,  and  it  is  impossible  to  remove 
the  part  that  encroaches  without  trespassing 
upon  defendant's  land  and  injuring  his  build- 
ing. 

I  assume  that  the  bill  may  be  considered  as 
charging  that  the  complainant  actually  issued 
execution  and  that  the  sheriff  has  failed  or  re- 


fused to  Temore  the  encroachment  The  mo- 
tion to  strike  out  is  based  upon :  First,  that 
there  is  an  adequate  remedy  at  law;  and,  sec- 
ond, that  there  is  laches.  It  is  Insisted  by  the 
defendant  that  the  complainant  by  virtue 
of  the  judgment  in  ejectment  has  been 
awarded  the  possession  of  the  property  in 
dispute  and  may  remove  whatever  may  be 
thereon;  further,  that  he  may  compel  the 
sheriff,  if  the  nature  of  the  defendant's  prop- 
erty on  the  land  in  question  is  such  that  it 
may  be  removed,  to  remove  It  and  put  him 
In  an  actual  physical  possession  of  the  soil 
as  It  was  prior  to  defendant's  interference 
with  It,  tliat  the  sherifT  may,  however,  re- 
quire indemnity,  and  if  any  part  of  the  de- 
fendant's building  is  injured  by  the  action 
of  the  sheriff  acting  under  the  writ  the  com- 
plainant will  be  responsible;  and,  finally, 
that  If  the  nature  of  the  property  of  the  de- 
fen'dant  upon  the  land  of  complainant  is  such 
that  it  may  not  be  removed  without  injuring 
defendant's  prot)erty,  then  the  complainant 
is  entitled  only  to  constructive  possession. 

Where  the  injury  is  irreparable,  tliis  court 
will  enjoin  continaoua  trespasses.  In  cases 
where  the  fundamental  right  of  the  com- 
plainant to  equitable  relief  depends  upon 
legal  title  in  dispute,  the  Court  of  Errors 
and  Appeals  has  said  that  it  is  the  duty  of 
the  court  to  retain  the  bill  and  to  send  the 
complainant  to  law  so  that  the  legal  title 
may  be  settled  (Todd  ▼.  Staats,  60  N.  J.  Eq. 
[15  Dick.]  507,  46  Atl.  645,  and  cases  follow- 
ing) ;  the  complainant  in  the  meantime  pro- 
ceeding with  the  building  at  his  peril.  The 
logical  result  of  Todd  ▼.  Staats  Is  that,  the 
legal  right  having  been  settled  in  favor  of 
the  complainant,  a  mandatory  injunction  will 
go  to  compel  the  defendant  to  remove  the 
offending  structure  if  equitable  considera- 
tions do  not  prevent  and  If  the  remedy  ob- 
tained at  law  be  not  adequate.  In  Stan- 
ford V.  Lyon,  37  N.  J.  Eq.  94,  Vice  Chancel- 
lor Van  Fleet  held  that  the  court  would 
grant  a  mandatory  injunction  compelling  de- 
fendants to  remove  portions  of  buildings 
erected  by  them  which  prevented  complain- 
ant from  exercising  rights  In  a  yai'd.  The 
Court  of  Errors  and  Appeals,  in  42  N.  J.  Eq. 
411,  7  Atl.  869,  modified  the  decree  so  as  to 
define  the  complainant's  rights  as  they  were 
defined  in  an  action  at  law  which  he  had 
previously  brought  against  the  defendants 
and  in  which  his  rights  had  been  determined. 
The  Court  of  Errors  and  Appeals  did  not  ques- 
tion the  power  of  the  court  of  equity  to,  after 
the  right  had  been  settled  at  law,  protect  the 
right  by  mandatory  Injunction  if  that  were 
necessary.  The  first  head  of  equitable  ju- 
risdiction stated  in  Hart  v.  Leonard,  42  N.  J. 
Eq.  416,  7  Atl.  865,  is  that  of  cases  where 
the  legal  right  has  been  established  in  a  suit 
at  law  an'd  the  bill  in  equity  is  filed  to  ascer- 
tain the  extent  of  the  right  and  enforce  or 
protect  it  in  a  manner  not  attainable  by  le- 


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101  ATIi4NTIC  &S3P0KTBB 


(N.J. 


gal  procedure.  And  see  the  sixth  and  ninth 
head.  In  Haltsch  v.  Duffy  (1914,  Del.)  92  Atl. 
249,  the  Chancellor,  la  a  case  In  which  an  In- 
junction was  prayed  against  defendant  en- 
Joining  him  from  asserting  a  right  of  air 
and  light  over  complainant's  land  and  compel 
the  removal  of  a  structure  which  Interfered 
with  complainant's  rights,  held  that  a  court 
of  equity  had  the  power  to  grant  such  relief 
prior  to  the  determination  of  the  right  at 
law.  He  said,  referring  to  Herr  v.  Bier- 
bower,  8  Md.  Cb.  456 : 

"The  court  considered  that  it  was  no  answer 
to  say  that  by  suit  in  ejectment  the  complain- 
ant would  recover  possession  of  the  land  en- 
croached upon,  and  would  so  eet  any  wall  or 
building  erected  on  the  land  so  recovered.  The 
structure  would  still  remain,  and  in  order  that 
the  complainant  be  restored  to  the  full  use  of 
his  land  it  would  be  necessary  that  the  wall,  or 
structure,  be  removed." 

He  further  said: 

"This  equitable  jurisdiction  is  probably  based, 
not  on  the  irreparable  character  of  the  damage 
by  the  agKression,  nor  to  relieve  the  necessity 
for  multiplicity  of  suits  as  if  it  were  a  contin- 
uous trespass.  The  right  to  a  mandatory  in- 
junction to  require  the  removal  of  an  encroach- 
ment on  land  is  based  on  the  peculiar  nature  of 
the  right  invaded  and  the  subject  matter  af- 
fected, viz.  land." 

I  am  Inclined  to  think  that  the  Jurisdiction 
Is  In  the  last  analysis  based  upon  the  impos- 
sibility of  securing  at  law  any  adequate  re- 
lief for  the  damage  done,  either  by  ejectment 
or  by  numerous  suits  in  trespass.  In  Baron 
V.  Kom,  127  N.  Y.  224,  27  N.  E.  804,  opinion 
by  Parker,  Judge,  the  New  lork  Ck)urt  of  Ap- 
peals, in  an  action  to  restrain  the  erection  of 
a  portion  of  a  building  on  land  of  complain- 
ant, said: 

"Assuming  plaintiffs'  title  to  be  established, 
the  authority  of  the  court  in  a  suit  in  equity  to 
interfere  and  prevent  an  appropriation  of  their 
lands  to  the  use  of  another  for  building  pur- 
poses cannot  be  longer  questioned,  not  only  for 
the  purpose  of  avoiding  multiplicity  of  actions, 
but  also  because  they  were  without  adequate 
remedy  at  law.  •  •  •  The  sheriff  might  not 
regard  it  as  bis  duty  to  deliver  possession  by 
taking  down  the  wall,  which  would  burden  him 
with  the  risk  of  injury  to  other  portions  of  de- 
fendant's building,  not  included  within  the  nine 
inches.  (It  is  to  be  observed  that  the  amount  of 
land  involved  in  that  case  was  almost  precise- 
ly what  it  is  in  this,  at  least  so  far  as  width  is 
concerned.)  But  in  equity  the  obligation  to  re- 
move can  be  placed  directly  on  the  parties  who 
caused  the  wall  to  be  erected.    »    ♦    •  " 

The  court  did  not  consider  the  question  as 
to  whether  It  was  necessary  that  the  title 
should  first  be  determined  at  law,  holding 
that  the  question  had  not  been  properly  rais- 
ed. Upon  the  authority  of  the  foregoing  cas- 
<>s,  I  think  that  the  bill  may  be  maintained. 
The  title  and  right  of  complainant  has  been 
settled  at  law.  The  law  courts  are  not  by 
reason  of  the  nature  of  their  processes  able 
to  give  complete  and  adequate  relief.  Nei- 
ther the  sheriff  nor  the  complainant  should 
be  compelled  to  take  the  risk,  on  removal  of 
this  structure,  of  Injuring  property  of  the  de- 
fendant. To  give  the  complainant  construc- 
tive possession  Is  no  remedy  at  all ;  he  has  al- 


ways had  that  To  remit  htm  to  actions  for 
trespass  will  not  afford  adequate  relief.  He 
is  entitled  to  the  enjoym^it  of  the  land  in  the 
position  It  was  before  the  defendant  en- 
croached upon  it  It  is  only  by  the  process 
of  mandatory  Injunction  that  the  obligation 
to  temovB,  in  the  language  of  the  New  Tork 
court  can  be  placed  directly  on  the  party 
who  caused  the  wall  to  be  erected.  The  case 
of  D.  L.  W.  V.  Bre?kenridge,  65  N.  J.  Eq.  141, 
35  Atl.  756,  affirmed  53  N.  J.  Bq.  693,  39  Atl. 
1113,  Is  not  In  conflict  with  this  holding,  nor 
are  the  cases  of  Boyden  v.  Bragaw,  53  N.  J. 
Eq.  26,  30  AtL  830,  and  Ck>lloty  r.  Stein.  80 
N.  J.  Eki.  405,  84  AtL  193.  In  the  first,  Vice 
Chancellor  Emery,  In  dealing  with  an  appli- 
cation for  an  Injunction  directing  the  remov- 
al (tf  certain  water  pipes,  did  say  that  the 
equitable  remedy  could  give  no  different  re- 
lief from  the  executl<»  In  ejectment ;  but  the 
Inability  to  execute  the  execution  without 
danger  to  complainant  was  not  considered 
by  him,  moreover,  the  effect  of  his  order  was 
merely  to  retain  the  cause  until  the  legal  ti- 
tle had  been  settled  at  law.  In  the  second. 
Vice  Chancellor  Bird  held  that  there  was  an 
adequate  remedy  at  law,  to  wit,  damages 
measured  by  what  It  would  cost  the  complain- 
ant to  remove  the  offending  monument  and 
put  the  land  back  In  the  condition  it  was  be- 
fore the  erection.  Such  relief  cannot  be 
granted  here.  In  the  third.  Vice  Chancellor 
Leaming  merely  held  that  prior  to  determina- 
tion of  the  legal  title  at  law  equity  would  not 
intervene  to  prevent  the  erection  of  a  build- 
ing alleged  to  encroach  on  complainant's 
lands. 

Second,  on  the  question  of  laches:  Wheth- 
er the  complainant  has  been  guilty  of  laches 
depends,  I  think,  upon  a  consideration  of 
facts  which  are  not  before  the  court  upon  the 
present  motion.  The  bill  alleges  that  the 
construction  was  started  on  or  about  May  3, 
1911,  and  that  the  ejectment  suit  was  start- 
ed on  or  about  July  3,  1911,  two  months  aft- 
erward. When  the  complainant  knew  of  the 
encroachment  is  not  disclosed.  Nor  is  It  dis- 
closed to  what  extent  the  building  had  pro- 
gressed at  the  time  of  the  ejectment  suit  By 
the  commencement  of  the  ejectment  suit  de- 
fendant had  notice  of  the  claim  of  complain- 
ant's right  The  suit  was  not  brought  to 
Judgment  until  September,  1913.  Whether 
that  was  the  fault  of  complainant  or  because 
of  necessary  delay  In  court  Is  not  disclosed. 
This  bill  was  not  filed  until  May  8,  1917. 
Whether  this  delay  was  occasioned  by  the 
complainant  endeavoring  to  obtain  relief  at 
law  Is  not  disclosed.  It  may  very  well  be  as- 
sumed, I  think,  that  no  Injury  occurred  to 
the  defendant  between  September,  1913,  and 
March,  1917,  as  the  building  had  unquestion- 
ably been  fully  completed.  Whether  It  was 
the  duty  of  the  complainant  to  file  a  bill  In 
equity  at  the  same  time  as  commencing  the 
suit  In  ejectment  applying  to  the  court  to  re- 
tain the  bill  until  the  right  at  law  had  been 
settled,  under  the  case  of  Todd  t.  Staats,  may 


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LAUBNSTEIN  v.  LAUENSTEIN 


193 


depend  upon  drcumstancea  wliich  are  not 
now  before  me.  I  will  wltbhold  considera- 
tion of  tbe  questloii  of  lacbes  until  final 
bearing. 

In  view  of  the  fact  tbat,  if  an  order  is 
made  sustaining  the  bill  and  it  Is  taken  to 
tbe  Court  of  Errors  and  Appeals  and  there 
affirmed,  there  will  hare  to  be  a  trial  upon 
at  least  the  question  of  laches,  and  the  case 
may  then  again  go  to  that  court,  I  am  inclin- 
ed to  ttdnk  that  the  proper  order  in  this  case 
ig  an  order  carrying  over  tbe  motion  to  dis- 
miss the  bill  until  final  hearing. 

I  wish  counsel  would  communicate  with 
me  as  to  their  views  on  this  point. 


(n  N.  J.  Bq.  408) 

LACENSTEtN  et  al.  v.  LAUENSTBIN  et  al. 
(No.  42/319.) 

(Conrt  of  Chanceiy  of  New  Jersey.     May  18, 
1917.) 

1.  Wills  ®=3753— Riohts  oj-  LEaATBES— Spb- 
cmc  Leoact. 

A  will  devising  the  stock  and  equipment  of 
an  auto  supply  business,  subject  to  itis  debts  and 
obligations,  absolutely  to  testatrix's  son  and  not 
tobject  to  restrictions  on  his  sbare  in  the  re- 
mainder of  the  will,  ia  a  specific  legacy. 

[EU.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {!  1939-1944.] 

2.  Will's  e=>732(7)—OoNBTBucTioN— Gifts. 

A  will,  reciting  that  part  of  the  estate  con- 
sisted of  the  stock,  equipment,  etc.,  of  an  auto 
supply  business,  bequeathed  such  property  to  the 
son  of  testatrix.  The  stock  and  equipment  of 
the  business  did  not  belong  to  testatrix,  but  to 
her  husband,  who  was'  indebted  to  his  wife  for 
idvancements  made  to  carry  on  the  busiuess. 
Held,  that  the  gift  of  such  sums  due  could  not 
be  sustained  under  the  terms  of  the  will  in  lieu 
of  tbe  bequest  of  the  stock  and  equipment  upon 
its  failure. 

(Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  H  1732-1737,  1811,  1812.] 

Action  by  Augustus  J.  Lauenstein  and  oth- 
ers against  Elizabeth  Lauenstein  and  others 
for  the  construction  of  a  will,  under  which 
Thomas  J.  Conlon  makes  a  claim.  Claim  not 
■nstahied. 

Charlton  A.  Beed,  of  Morristown,  for  ex- 
ecutors. Elmer  King,  of  Morristown,  for 
Edward  Kelly,  guardian.  B.  W.  Ellicott,  of 
Dover,  for  Thomas  J.  Conlon. 

STEVENS,  V.  C.  This  is  a  biU  for  the 
construction  of  the  third  paragraph  of  the 
codicil  of  the  will  of  Julia  Kelly.  It  reads 
as  follows : 

"Third.  A  part  of  my  estate  consists  of  the 
stock,  equipment,  etc.,  of  the  business  known  as 
Dover  Auto  Supply  House  located  on  Blackwell 
street  in  Dover,  N.  J.;  this,  subject  to  the  debts 
and  obligations  thereof,  I  give  and  bequeath  to 
my  son  Thomas  Conlon,  who  ia  now  associated 
in  the  management  thereof. 

"This  is  an  absolute  bequest  to  him  and  not 
subject  to  the  restrictions  placed  on  his  share 
of  the  residue  in  my  said  will.  It  is  my  will 
however  that  this  bequest  to  the  amount  of 
twenty-five  hundred  dollars  be  considered  as  paid 


to  him  out  of  the  residue  of  my  estate  and  to 
said  extent  as  on  account  of  his  share  thereof." 

[1]  There  can  he  no  doubt  that,  looking 
only  to  the  langnage  at  the  bequest,  tbe  l%a- 
cy  Is  specific.  It  has,  however,  been  Judicial- 
ly determined  by  this  court  that  the  "stock, 
equipment,  etc.,"  of  the  business  did  not  be- 
long to  the  testatrix,  but  to  her  husband. 
Consequently  the  gift  failed.  McKlnnon  v. 
Thompson,  3  Johns.  Ch.  (N.  Y.)  307.  Mar- 
shall V.  Hadley,  60  N.  J.  Eq.  547,  25  AtL  825. 

[2]  But  It  Is  said  tiiat,  on  the  peculiar  cir- 
cumstances, if  the  legatee  cannot  have  the 
business,  he  is  entitled  to  have  what  tbe  busi- 
ness owed  his  mother  for  advances.  It  ap- 
pears that  testatrix  was  desirous  of  giving 
her  son  a  start.  For  this  purpose  she  con- 
tributed the  money  with  which  a  considera- 
ble part  of  the  stock  and  equipment  were,  nt 
the  beginning,  purchased.  The  business  waf» 
to  be  carried  on  in  the  name  of  the  "Dovei 
Auto  Supply  House,"  and  to  this  end  Mrs. 
Kelly's  husband,  pursuant  to  the  act  of  May 
17,  1909,  filed  in  the  county  clerk's  office  a 
certificate  in  which  he  stated  that  he  (Ed- 
ward Kelly)  intended  "to  conduct  the  business 
of  dealer  in  auto  supplies,  etc.,  and  that  the 
true  name  of  the  person  who  was  to  transact 
it  was  himself.  He  was  a  man  of  pecuniary 
responsibility,  and  the  goods,  bought  from 
time  to  time,  were  largely  purchased  on  Ills 
credit  The  legatee,  Thomas,  was  made  the 
active  manager,  and  he  conducted  the  busi- 
ness under  the  general  supervision  of  his 
father.  Mrs.  Kelly  received  interest  on  the 
money  advanced  by  her,  a  part  of  which  was 
repaid.  It  was  ascertained  by  the  decree  of 
this  court  that  at  the  time  of  her  death  Mr. 
Kelly  owed  her  estate  a  balance  of  $2,029.40. 

The  contention  is  that  Thomas  Conlon  Is 
entitled  to  the  Immediate  payment  of  this 
sum,  as  a  substitute  for  the  business  which 
testatrix  Intended  to  give  him — a  business 
she,  no  doubt,  believed  to  be  hers,  because  of 
the  money  she  had  contributed.  The  legal 
aspect  of  the  matter  is  this :  The  stock  and 
equipment  belonged  to  her  husband.  He  was 
her  debtor  for  the  money  lent  By  her  will 
she  gave  this  stock  and  equipment  expressly 
subject  to  "the  debts  and  obligations  thereof." 
Thomas,  taking  the  business,  was  to  take  it 
subject  to  debts,  one  of  which  was  the  debt 
due  to  herself.  The  debt  in  question  was  not 
a  benefit  to  the  business,  but  a  burden. 
Thomas  was,  according  to  the  language  of  the 
will,  not  to  receive  it,  but  to  pay  it.  To  hold 
that  a  gift  of  the  business,  subject  to  its  debts 
was  a  gift  of  the  money  which  the  legatee 
would  have  been  under  the  necessity  of  thus 
paying,  if  he  had  taken  it,  would  be  impossi- 
ble. He  certainly  would  not  take  under  thu 
words  of  gift  In  Marshall  v.  Hadley,  supra. 
Vice  Chancellor  Van  Fleet  held  that  a  gift 
of  land,  .which  neither  at  the  time  of  the  mak- 
ing of  the  will  nor  afterwards  the  testator 
owned,  did  not  include  a  gift  of  a  mortgage 


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101  ATIiANTIC  REPOB.TEB 


apon  tbe  land  which  he  did  own ;  and  in  Me- 
Klnnon  v.  Thompson,  supra,  Chancellor  Kent 
decided  that  a  devise  of  land  not  owned  by 
testator  could  not  operate  as  a  bequest  of  a 
Judgment  debt  charged  upon  the  land  In  his 
favor.  These  cases  are  much  more  favorable 
to  tbe  contention  than  tbe  one  in  hand.  Here 
testatrix,  so  far  from  giving,  Imposed  an 
obligation  to  pay. 

I  think  that  Mr.  Conlon's  claim  to  the  mon- 
ey cannot  I>e  sustained. 


NOLAN  et  al.  v.  UNITED  BKOTHERHOOD 

OF  CARPENTKRS  AND  JOINERS  OF 

AMERICA.    (No.  43/297.) 

(Court  of  Gboneery  of  New  Jersey.    June  21, 
191T.) 

Injunction   ®=»137(4)— Tempobabt  Injunc- 
tion—Wukn  Gbanted. 
A  temporary  injunction  will  not  issue  where 

the  law  and  facts  are  in  sutwtantial  dispute; 

as  to  doubt  is  to  deny. 
[Ed.  Note. — For  oUier  cases,  see  Inlunction, 

Cent  Dig.  {  309.] 

Application  for  a  temporary  injunction 
by  Patrick  J.  Nolan  and  others  against  tbe 
United  Brotherhood  of  Carpenters  and  Join- 
ers of  America.    Application  denied. 

J.  A.  Kiernan,  of  Elizabeth,  for  complain- 
ants. Henry  C&rless,  of  Newark,  for  de- 
fendant. 

LANE,  V.  O.  I  have  concluded  In  this  case 
to  deny  the  application  for  a  temporary  In- 
junction. The  charge  is  that  the  complain- 
ant and  several  others  are  members  of  Local 
Inion  No.  167  of  the  United  Brotherhood  of 
Carpenters  and  Joiners  of  America,  and 
liuve  t>cen  such  members  since  September  14, 
1896;  that  that  union  is  affiliated  with  an 
organization  known  as  the  Elizabeth  District 
Council  of  Carpenters,  and  that  both  are 
subordinate  organizations  of  the  United 
Brotherhood  of  Can^cnters  and  Joiners  of 
America ;  that  the  general  objects  are  to  pro- 
mote social  relations,  regulate  laboring 
hours,  unionize  workmen,  and  to  pay  sick, 
disability,  and  death  benefits;  that  as  a 
member  In  good  standing  of  the  local  union 
the  complainant  would  be  entitled  to  $5  a 
week  sick  benefit,  $400  for  total  disability, 
and  a  certain  sum  to  Ills  next  of  kin  as  a  fu- 
neral benefit,  provided  he  was  a  member  In 
good  standing  and  had  complied  with  the 
rules  and  regulations;  that  since  May  3, 
1916,  he  has  been  working  as  a  carpenter 
continually  at  the  plant  of  the  Grasselli 
Chemical  Company,  at  Tremley,  Union  coun- 
ty, N.  J.,  and  that  shop  Is  what  is  known  as 
an  open  shop. 

The  bin  alleges  that  he  has  practically  re- 
ceived union  wages,  worked  union  hours,  and 
that  the  place  is  desirable ;  that  on  or  about 
March  12,  1917,  at  the  instance  of  the  general 
officers  of  the  union,  and  particularly  at  the 


Instance  of  the  boslness  agent  of  tlie  local 
union,  charges  were  made  against  Um  that 
he  was  violating  the-  constitution,  roles,  and 
regulations  of  the  United  Brotherhood  and 
its  council  and  local  vmlons  as  a  union  mem- 
t>er  by  working  in  an  open  shop.  He  alleges 
that  charges  were  propounded  against  him 
and  certain  others,  all  employed  by  the  Gras- 
selli Company,  and  that  there  Is  unjust  dis- 
crimination in  view-  of  the  fact  that  there 
are  other  open  shops  in  the  neighborhood, 
and  members  of  the  organization  working  in 
such  other  open  shops  are  not  being  pro- 
ceeded against. 

The  affidavits  of  the  defendant  deny  that 
the  charge  against  the  complainant  Is  that 
he  is  working  in  an  open  shop,  but  that  he 
has  violated  a  trade  rule  of  the  organization 
wlkich  requires  that  union  carpenters  should 
work  only  44  hours  a  week  at  66^  cents  per 
hour ;  that  the  complainant  is  receiving  only 
45%  cents  per  hour,  with  time  and  a  half  for 
overtime  for  a  week  of  62V6  hours.  Tbe  af- 
fidavits expressly  deny  that  there  is  any  de- 
sire to  discriminate  against  complainant  for 
the  reason  that  he  is  working  in  an  open 
shop,  provided  he  receives  union  wages  and 
works  under  union  conditions. 

(Complainant  wlien  he  Joined  the  union 
agreed  to  abide  by  its  constitution  and  by- 
laws. One  of  the  provisions  of  the  consti- 
tution and  by-laws  is  that  no  member  should 
be  allowed  to  violate  the  trade  rules  of  the 
locality  in  which  he  works.  Another  section 
provides  that,  if  he  does  he  may  be  fined, 
suspended,  or  expelled,  as  the  Local  Union 
may  decide.  There  are  further  provisions  for 
an  appeal  from  the  determination. 

The  aflldavits  show  that  the  charge  against 
the  complainant  is  not  that  he  Is  working 
with  nonunion  men  in  what  Is  termed  an 
open  shop,  but  that  he  violated  the  trade 
rules  with  respect  to  the  hours  of  work  and 
the  rate  per  hour.  The  complainant  has 
not  been  tried  by  the  local  union  and  I  have 
only  his  surmise  as  to  what  the  result  of 
such  a  trial  will  be.  The  Grasselli  Company 
Is  not  a  party,  so  that  we  have  not  the  situa- 
tion presented  by  Booth  &  Bro.  v.  Burgess, 
72  N.  J.  Bq.  181,  65  Atl.  228,  and  Barr  v. 
Essex  Trades  CJoundl,  53  N.  J.  Eq.  101,  30 
Atl.  881. 

I  do  not  find  It  necessary  on  this  prelim- 
inary application  to  pass  upon  the  question 
aa  to  whether  or  not  individuals  may  sur- 
render their  right  to  contract,  referred  to 
by  Vice  Chancellor  Stevenson  In  Booth  &  Bro. 
V.  Burgess,  72  N.  J.  Eq.  at  page  197,  65  AtL 
226,  nor  whether  the  fact  that  complainant  iu 
entitled  to  a  sick  benefit  and  payment  of  dis- 
ability and  death  claims  constitute  a  proper- 
ty right  which  will  be  protected  by  this 
court,  nor  wliether  the  complainant  is  obliged 
(and  this  depends  upon  the  finding  with 
respect  to  whether  there  is  a  property  right) 
to  pursue  his  remedy  by  appeal  to  the  so- 


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PRICE  V.  LONG 


195 


perior  body  of  the  order.  If  the  council  shall 
proceed  and  expel  Mm,  and  this  expulsion 
shall  be  Improper,  either  the  Supreme  Court 
or  this  court  may  grant  relief.  Plrlcs  ▼. 
First  Kusslan,  etc.,  Society,  83  M.  J.  Eq.  at 
page  34,  89  Atl.  103& 

^Vhere  the  law  and  facts  are  In  substantial 
dispute,  as  In  this  case,  to  doubt  is  to  deny. 
See  the  remarlcs  of  the  present  <diancellor, 
tben  vice  chancellor,  in  Allman  t.  United 
Brotherhood  of  Carpenters,  etc.,  79  N.  J.  Bq. 
at  page  155,  81  Atl.  116. 

The  result  Is  that  tho  application  for  pre- 
Umlnary  injunction  will  be  denied. 


(90  N.  J.  Law.  cn» 

EDWAIUOS,  Comptroller  of  Treasury,  ▼.  PE- 
TRT.    (No.  77.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

Civil,    Rights   ®=»2— Cokstitutionaii   IiAW 

€=>56— JUBIBDICTION— VaUDITT     OF     STAT- 
UTE. 

The  jurisdiction  given  to  a  justice  of  the 
Supreme  Court  by  Act  March  30,  1G15  (P.  tt. 
p.  209),  providing  for  an  order  by  a  justice  to 
enforce  rights  ond^  the  Civil  Service  Act,  is 
Dot  invalid  as  interfering  with  the  right  of  the 
Supreme  Court  to  review  the  entire  case  by 
certiorari,  but  adds  an  additional  step  in  a  pi-o- 
ceeding  which  may  ultimately  reach  the  {Su- 
preme Court  as  a  reviewing  tribunal. 

[Bd.  Note.— For  other  cases,  see  Civil  Rights, 
Cent.  Dig.  $§  1-10;  Constitutional  Iaw,  Cent. 
l>ig.  H  62-05.1 

Appeal  from  Supreme  Court 

Certiorari  by  Edward  I.  Edwards,  Comp- 
troller of  the  Treasury,  against  Frederick 
I'etry,  Jr.  From  judgment  for  defendant, 
prosecutor  appeals.    Affirmed. 

On  appeal  from  the  Supreme  Conrt,  In 
which  the  following  per  curiam  was  filed: 

"This  is  a  writ  of  certiorari  to  review  an  or- 
der made  by  Justice  Trenchnrd,  imder  chapter 
120  of  tlie  J^WB  of  1915,  providing  for  an  or- 
der by  a  justice  of  the  Supreme  Court  to  enforce 
rights  mider  the  Civil  Service  Act.  Tlie  sole 
question  argucil  by  the  prosecutor  was  as  to 
the  power  of  the  I/egislature  to  delegate  to  a 
justice  of  the  Supreme  Court  this  right  to  re- 
view. 

"In  the  present  case  tlic  defendant  appealed  to 
the  civil  service  commissiim  and  met  with  an 
adverse  decision,  and  thereupon  applied  to  Jus- 
tice Trencliard  and  secured  an  order  reversing 
the  action  of  the  Commission.  We  do  not  find 
in  the  case  that  Justice  Trcnchard  went  further 
than  to  issue  a  rule  to  show  cause  on  the  comp- 
troller, and  the  power  to  issue  the  writ  was 
therefore  challenged  in  limine.  Xliis  involves 
the  questions  that  were  discussed  in  this  court 
in  New  Brunswick  v.  McCann,  74  N.  J.  Law, 
171,  04  Atl.  169;  Newark  v.  Kazinski,  86  N.  J. 
Law,  59,  90  Atl.  lOlC,  and  Summit  v.  loraiso, 
87  N.  J.  Law,  403,  94  AU.  806.  We  think  that, 
while  the  case  presents  some  difficulty,  we  are 
bound,  nevertheless,  to  follow  the  last  two  cases, 
wliich  seem  to  us  controlling. 

"We  think  that  the  jurisdiction  given  to  the 
justices  of  the  Supreme  Court  by  the  act  under 
consideration  in  no  way  interferes  with  the 
right  of  the  Supreme  Court  to  review  the  entire 
case  by  certiorari,  but  superadds  an  additional 
step  in  a  proceeding  which  may  ultimately  reach 


this  court  as  a  reviewing  tribunal.  We  are  not 
to  be  understood  as  approving  of  this  character 
of  legislation  which  quite  inmdiously  results  in 
unsettling  the  legal  machinery  of  the  court 
without  gaining  ultimately  any  substantial  ad- 
vantage to  the  litigant  by  the  disarrangement. 
"We  think  this  writ  must  be  dismissed." 
John  W.  Weacott,  Atty.  Oen.,  for  appel- 
lant. Linton  Satterthwait,  of  Trenton,  for 
appellee. 

PER  CURIAM.  The  Judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  in  the  opinion  of  the  Supreme  Court. 


Cn  N.  J.  Bq.  778) 
PRICE  T.  LONG  et  al.     (No.  42/631.) 

(Court  of  Chancery  of  New  Jersey.    May  11, 

1917.) 
Trusts  iS=>193%— Sale  o»  Tarsr  Pbopebtt 

POWSR   OF   COUBT   TO    ATTTHOBIZE. 

An  equity  court  has  jurisdiction  to  author- 
ize sale  of  stock  devised  to  trustees,  to  be  held 
by  them  for  25  years,  before  expiration  of  that 
time,  where  business  of  the  corporation  has  suf- 
fered seriously  because  of  general  business  de- 
pression occurring  since  his  death,  and  will  be 
disastrously  affected  by  entrance  of  the  United 
States  into  the  war,  where  the  parties  oppos- 
ing the  sale  conceded  its  stock  should  be  sold, 
and  opposed  sale  on  ground  that  price  is  not 
fair,  since  an  emergency  has  arisen  which  could 
not  have  been  in  contemplation  of  testator. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  §1  246,  24a] 

Bill  by  Mathias  J.  Price,  one  of  the  trustees 
under  the  will  of  Philip  H.  Long,  against 
iSmlly  A.  Long  and  others,  beneflciaries  under 
his  will,  asking  court  to  direct  the  sale  of 
stock  belonging  to  the  estate.  Decree  for  com- 
plainant 

Llndabnry,  Depue  &  Faulks,  of  Newark 
(P.  J.  Faulks,  of  Newark,  of  counsel),  for  com- 
plainant Cortlandt  &  Wayne  Parker,  of 
Newark  (Cortlandt  Parker,  of  Newark,  of 
counsel),  for  defendants  Walter  !>.  Long  and 
others.  Lum,  Tamblyn  &  Colyer,  of  Newark 
(Ernest  Lum,  of  Newark,  of  counsel),  for 
defendants  Emily  A.  Long  and  Fred  W.  Tay- 
lor, aa'tru8te& 

LANE,  y.  O.  Philip  H.  Lone  died  on 
December  9,  1908.  Under  bis  will  he  gave 
to  his  executors  and  trustees,  Frederick  W, 
Taylor  and  Mathias  J.  Price,  65  shares  of 
stock  of  the  Long  &  Koch  Company,  t.o  be 
held  by  them  in  trust  for  a  period  of  25  years. 
The  Income  or  dlv'idends  from  27M  shares  of 
such  stodc  Is  to  be  paid  to  lila  wife,  f^nily 
A.  Long,  so  long  as  she  lived;  If  she  dies 
prior  to  the  expiration  of  the  25  years,  then 
the  income  on  such  27H  sluices  is  to  be  paid 
to  her  brother  Edmund  Taylor,  a  sister,  Kato 
Prosser,  and  her  sister-in-law,  Mrs.  Emily 
Taylor,  and  such  of  her  nephews  and  nieces 
as  shall  he  living  at  the  time  of  her  death, 
except  that  if  her  nephew  Harry  B.  J.  Taylor 
should  predecease  her,  the  share  that  he 
would  be  entitled  to  if  living  is  to  be  paid 


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101  ATIiANTIO  REPORTER 


(N.J, 


to  hla  wife  and  chMren.  The  Income  on 
the  remaining  37H  shares  Is  to  be  divided 
equally  between  testator's  two  brothers,  Fred- 
erick T.  Long  and  Walter  L.  Long,  and  sacb 
of  testator's  n^hews  and  nieces  as  shall  be 
llTlng  at  the  time  of  testator's  death,  and  his 
cousin  Philip  J.  Long  also  Is  to  share  In  the 
Income  so  long  as  he  shall  remain  an  employ^ 
of  the  company.  At  the  end  of  25  years  the 
said  65  shares  of  stock  are  to  be  sold  and  dis- 
posed of,  certain  relatives  having  the  first 
right  to  purchase.  The  proceeds  are  to  be  di- 
vided among  certain  charities  and  among 
certain  relatives.  Some  of  the  beneficiaries 
are  at  this  time  unascertained ;  the  residences 
of  those  that  have  been  ascertained  are  wide- 
ly scattered  In  this  country  and  abroad ;  some 
are  infants. 

The  Long  &  Koch  Company  is  a  manufac- 
turing concern  founded  by  Philip  Long  and 
to  whldi  be  gave  his  attention  up  to  the 
time  of  his  death.  Its  chief  business  is  the 
making  of  cheap  jewelry,  with  a  very  smaU 
margin  of  profit.  During  the  life  of  Mr.  Long 
It  was  extremely  successful,  and  for  a  few 
years  after  his  death  continued  to  be.  Its 
dividends  for  several  successive  years  were 
as  follows:  1904,  80  per  cent ;  1906,  100  per 
cent ;  1906, 130  per  cent ;  1907, 175  per  cent ; 
1908^  100  per  cent;  from  1908  to  1912,  100 
per  cent  In  1913  the  dividends-  were  re- 
duced to  60  per  cent.  In  1914  further  reduced 
to  20  per  cent,  and  since  1914  no  dividends 
have  been  declared.  The  testimony  is  to  the 
effect  that  although  a  dividend  may  be  declar- 
ed for  the  year  1917,  it  will  be  small.  The 
corporation  is  a  close  corporation ;  it  has  but 
150  shares  of  stock.  Of  this  the  estate  holds 
66;  Mrs.  Elmily  Long,  10;  Julius  Koch,  74; 
Mrs.  Koch,  one.  The  control  is  evenly  divid- 
ed between  the  Koch  and  the  Long  interests. 
Mr.  Koch  Is  now  at  the  bead  of  the  concern, 
and  Frederick  W.  Taylor,  one  of  the  trustees, 
is  employed  by  the  corporation  at  a  salary. 

The  reason  for  the  decline  of  the  business 
is  attributed  to  two  sources:  First,  the  loss 
of  Mr.  Long,  whose  genius  had  buUt  up  the 
business;  second,  the  general  depression  in 
the  Jewelry  trade.  The  book  value  of  the 
stock  is  In  excess  of  $1,000  a  sbarei.  Mr. 
Koch  has  offered  to  buy  out  the  Interest 
of  the  estate  at  a  price  of  $400  a  share.  Fred- 
erick W.  Taylor,  one  of  the  trustees,  Is 
against  the  acceptance  of  the  offer,  whereas 
Mr.  Price,  the  other  trustee,  considers  It 
not  only  advisable  In  the  Interest  of  the 
estate,  but  necessary,  if  great  loss  is  not  to  be 
sustained,  that  the  offer  be  accepted.  He 
therefore,  brings  this  bill  asking  this  court 
to  direct  the  sale,  and  make  parties  all  per- 
sons whom  be  knows  to  have  an  interest  in  the 
estate.  The  application  is  resisted  by  certain 
of  those  entitled  to  Income,  among  them  the 
widow,  and  also  by  the  cotrustee.  Many  of 
the  parties  have  not  appeared.  The  answer- 
ug  defendants,  while  admitting  that  because 
of  the  uncertainty  attending  the  present  in- 


vestment, it  may  be  desirable  that  the  stock 
be  sold,  yet  insist  that  the  price  is  not  ade- 
quate, and  raise  by  their  answers  the  ques- 
tion of  the  power  of  the  court  In  the  premises. 
Mr.  Price  Is  in  no  wise  connected  with  the 
company,  and  he  takes  the  position  that  It  is 
his  duty  to  brlog  the  situation  to  the  atten- 
tion of  the  court  The  attitude  of  Mr.  Taylor 
is  unconsciously  affected  by  the  fact  that  a 
sale  of  the  stock  may  mean  the  loss  of  hi» 
position  with  the  company,  and  will  unques- 
tionably lead  to  the  loss  of  the  influence 
which  he  now  enjoys.  While  the  book  value 
of  the  stock  Is  in  excess  of  $1,000,  it  is  im- 
possible to  sell  It  to  any  one  except  Mr.  Koch 
for  any  reasonable  figure.  Mr.  Taylor  frank- 
ly concedes  this.  Koch  says  $400,  consider- 
ing all  of  the  circumstances,  is  about  fair 
value  of  the  stock,  and  I  think  that  under  aU 
the  circumstances  it  is.  Counsel  for  the  com- 
plainant fuiTilshed  me  memoranda  of  the 
cases  on  both  sides  of  the  question,  and  X 
have  considered  them. 

Chancellor  Runyon,  In  Fidelity  Co.  v.  Unit- 
ed Co.,  36  N.  J.  Bq.  405,  at  page  408  says: 
"It  is  the  rule  that  the  directions  for  invest- 
ment contained  in  an  instrument  of  trust  are 
imperatively  obligatory  on  the  trustee;  but  by 
the  direction  of  a  competent  court  he  may  de- 
part from  them.  The  court  however,  should  ex- 
ercise its  authority  •  »  *  only  in  view  of 
the  existence  of  a  necessity.  The  power  of  this 
court  to  abrogate  or  annul  any  of  the  terms  of 
the  before-mentioned  agreements  should  not  be 
exercised  except  for  clear  and  cogent  reasons, 
and  with  full  opportunity  to  the  parties  who  are 
to  be  affected  by  such  action  to  be  heard." 

Chancellor  Vroom  has  said,  in  Oliver  ▼. 
Oliver,  3  N.  J.  Eq.  368.  at  page  373: 

"One  thing  is  certain;  this  court  will  not  in- 
terfere with  the  appropriation  of  this  trust 
fund,  so  as  to  direct  it  differently  from  the  in- 
tention of  the  testator,  except  in  a  very  clear 
case." 

In  Dodd  T.  Una,  40  N.  J.  Eq.  672,  6  AU. 
155,  the  Court  of  Brrors  and  Appeals  held 
that  this  court  had  no  power  to  impose  Its 
view  upon  the  method  in  which  the  funds  of 
a  savings  bank  were  to  be  dealt  with  where 
the  details  were  specified  by  statute.  In  Lis- 
ter v.  Weeks,  61  N.  J.  Eq.  623,  47  Atl.  588, 
the  Conrt  of  Errors  and  Appeals  sustained 
an  order  made  by  the  Court  of  Chancery,  di- 
recting a  certain  Investment  to  be  changed, 
but  put  Its  decision  upon  the  ground  that 
the  parties  In  interest  especially  the  appel- 
lants, had  consented  to  It  and  could  not 
thereafter  withdraw  their  assent  In  Eng- 
land the  power  of  the  Court  of  Chaiicery  in 
the  exercise  of  its  general  administrative 
Jurisdiction  to  sanction  or  direct  trustees  to 
perform  acts  contrary  to  the  provision  of  an 
Instrument  of  trust  where  there  arises  an 
emergency  or  a  state  of  circumstances  whicb 
It  may  reasonably  be  supposed  was  not  fore- 
seen or  anticipated  by  the  author  of  the 
trust  and  Is  unprovided  for  by  the  trust  In- 
strument and  which  renders  It  desirable  and 
perhaps  even  essential  in  the  Interest  of  the 
beneficiaries  that  such  act  should  be  done. 


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HUGHES  T.  HURLET 


197 


has  been  snstalned  In  England  In  the  cases 
of  In  re  New  et  al.  aOOl)  2  Ch.  Dlv.  534; 
In  n  ToUemache  (1902)  1  Ch.  Dir.  467.  In 
the  first  case,  Romer,  J.,  said: 

"The  principle  seems  to  be  this:  That  the 
eonrt  may,  on  an  emergency,  do  something  not 
authorized  by  the  trust.  It  has  no  general  pow- 
er to  interfere  with  or  disregard  the  trust;  but 
there  are  cases  where  the  court  has  gone  beyond 
the  express  provisions  of  the  trust  instrument, 
cases  of  emergency,  cases  not  foreseen,  or  pro- 
vided for  by  the  author  of  the  trust,  where  the 
circumstances  require  that  something  should  be 
done," 

— and,  farther: 

"It  is  impossible,  and  no  attempt  ought  to  be 
made  to  state  or  define  all  the  circumstances 
under  which,  or  the  extent  to  which,  the  court 
will  exercise  the  jurisdiction ;  but  it  need 
scarcely  be  said  that  the  court  will  not  be  justi- 
fied in  the  sanctioning  of  every  act  desired  by 
the  trustees  and  beneficiaries  merely  because  it 
may  appear  beneficial  to  the  estate;  and  certaiur 
]y  the  court  will  not  be  disposed  to  sanction 
transactions  of  a  speculative  or  risky  charac- 
ter." 

I  have  grave  donbt  as  to  the  power  of  this 
court,  but  because  of  the  existence,  I  think, 
of  the  present  emergency  and  the  fact  that 
if  I  should  decline  to  exercise  jurisdiction 
the  applying  trustee  will  have  performed  bis 
duty  and  there  will  probably  be  no  review 
by  the  Court  of  Errors  and  Appeals,  where- 
as If  I  exercise  Jurisdiction  the  present  de- 
fendants will  have  the  opportunity  to  ap- 
peal, and  the  matter  may  be  passed  upon  by 
that  court,  I  am  going  to  resolve  the  doubt 
as  to  Jurisdiction  in  favor  of  the  complain- 
ant.   The  situation  Is  such  that  I  cannot  as- 
sume responsibility   for  the  continuance  of 
this  investment  in  this  stock.    Not  only  has 
the  business  of  the  company  suffered  seri- 
ously because  of  the  loss  of  Mr.  Long  and 
the   general   depression  In  the  business,   to 
such  an  extent  that  Its  dividends  have  been 
reduced  from  175  per  cent  per  year  to  nil,  a 
condition  whldi  I  think  was  not  In  the  con- 
templation of  the  testator,  although  It  may 
be  said  that  be  must  be  presumed  to  have 
contemplated  it;  bat  a  world  war  has,  since 
his  death,  broken  out,  in  which  this  country 
has  now  become  Involved,  a  condition  which 
be  certainly  did  not  contemplate,  and  which, 
I  tbtnk,  it  Is  not  to  be  presumed  he  contem- 
plated.   As  a  matter  of  fact,  no  one  contem- 
plated It,  except  possibly  the  governmental 
antborlties  of  Germany.    It  Is  impossible  to 
determine  how  long  the  war  will  last,  or 
what  its  consequences  wUl  be,  or  what  the 
conditions  will  be  upon  a  readjustment  after 
Its  close.     It  must  have  a  disastrous  affect 
upon  such  businesses  as  that  carried  on  by 
the  Zx>ng  &  Koch  Company,  manufacturing, 
as  I  before  stated,  cheap  Jewelry  at  a  very 
narrow  margin  of  profit     Coming  on  the 
heels  of  the  condition  created  by  the  loss  of 
Mr.  Long,  and  the  general  depression  In  the 
Jewelry  business.  It  may  have  a  very  disas- 
trous  effect  upon   the  business  of  Long  & 
Koch.    It  should  also  be  kept  In  mind  that 


the  control  of  the  business  Is  equally  divid- 
ed between  the  Koch  and  the  Long  Inter- 
ests, and  this  equal  division  must  Inevitably, 
If  the  business  continues  to  lose  money,  lead 
to  discord  within  the  company  Itself.  Under 
the  circumstances  I  think  that  the  offer  of 
$400  a  share  Is  a  fair  one;  that  It  should 
be  accepted,  notwithstanding  the  opposition 
of  the  cotrustee  and  of  certain  other  benefi- 
ciaries. Indeed,  the  cotrustee  and  the  bene- 
ficiaries appearing  concede  in  their  answers, 
and  conceded  on  the  oral  hearing,  that  it 
was  advisable  that  the  stock  should  be  sold. 
The  only  question  was  the  question  of  price. 
They  all  conceded  that  no  more  could  be  ob- 
tained. Dissolution  cannot  be  forced.  Un- 
less this  offer  is  accepted,  it  seems  to  me 
that  this  risky  Investment  must  be  continued. 
I  win  advise  a  decree  permitting  and  di- 
recting the  sale  of  the  stock  at  $400  a  share, 
and  at  the  foot  of  the  decree  application  may 
be  made  for  instructions  as  to  the  Investment 
of  the  proceeds.  Settle  the  decree  on  one 
day's  notice. 


HUGHES  et  ah  v.  HURLET  et  aL    (No.  41/8.) 

(Court  of  Chancery  of  New  Jersey.    May  19, 
1917.)       . 

1.  Contracts     ^=3189 — Conbtbtjotiok — Fob- 

BEABANCE   TO    SuE. 

Where  a  party,  heavily  interested  in  a  bond 
secured  by  a  mortgage  which  covered  a  compa- 
ny's realty  and  personalty,  but  was  not  effective 
as  to  the  personalty  because  it  waa  not  recorded 
as  a  chattel  mortgage,  agreed  with  certain  gen- 
eral creditors  of  the  mortgagor  that,  in  con- 
sideration of  their  forbearance  to  press  their 
claims,  he  and  such  creditors  would  consen'p 
the  interest  of  the  mortgagee  and  creditors  at 
large  by  buying  up  the  claims  of  smaller  cred- 
itors if  necessary  to  prevent  action  on  their 
part,  such  agreement  bound  the  parties  to  join 
and  purchase,  if  necessary  to  protect  it  from 
being  dissipated,  not  the  mortgaged  realty,  in- 
cluding machinery  and  appliances,  but  the  per- 
sonalty which  was  i^eed  from  (deration  of  the 
mortgage. 

[Ed.   Note. — For  other  cases,   see  Contracts, 
Cent  Dig.  g}  811-845,  900-902,  906.] 

2.  Tbttsts   «=>231(2)— Violation    or  Agbec- 
UEirr— PxTHcnASE  at  Sheriff's  Sale. 

The  action  of  one  party  to  such  agreement 
In  buying  at  sheriff's  sale  for  $900  part  of  the 
personalty  worth  about  $100,  together  with  an 
equity  in  the  machinery  and  appliances  which 
was  of  no  value  because  covered  by  the  mort- 
gage and  not  subject  to  sale,  was  not  fraudulent 
as  to  the  other  contracting  creditors,  or  an  act  of 
which  they  could  complain,  where  the  proceeds 
were  applied  to  the  payment  of  preferential 
debts. 


[Ed.  Note.— For  other  cases. 
Dig.  §  331.] 


I  Trusts,  Cent. 


Suit  by  D.  W.  Hughes  and  others  against 
William  L.  Hurley  arfd  others.  Bill  dis- 
missed. 

Bourgeois  &  Coulomb,  of  Atlantic  City, 
for  complainants.  Stackhouse  &  Kramer, 
of  Camden,  for  defendants. 


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101  ATLANTIC  REPORTER 


(X.J. 


BACKES,  V.  C.  This  case  was  tried  thoi^ 
oughly  and  very  ably  argued  by  counsel, 
and  during  the  trial  the  yarions  phases  of 
it  were  discussed  In  such  detail  that  I  am 
able  as  well  now  to  dispose  of  the  matter  as 
if  I  should  give  it  further  consideration. 
There  are  no  Involved  legal  principles,  and 
there  is  only  one  issue  of  fact  as  to  which 
the  testimony  Is  In  sharp  conflict. 

The  bill  is  filed  by  the  three  complainants, 
who  are  creVlitors  of  the  Central  Freezing 
Company,  which  in  the  early  part  of  1915 
became  financially  embarrassed.  This  cor- 
poration was  formed  to  operate  an  Ice  plant 
In  or  near  Atlantic  City,  which  had  previous- 
ly been  the  property  of  the  Center-Freeze 
Realty  Company,  and  was  purchased  from 
that  company  In  December,  1912,  for  $175,000, 
In  payment  of  which  the  freezing  company 
gave  Its  bond  for  the  full  consideration  of 
$175,000,  and  executed  a  mortgage  to  secure 
this  bond  upon  the  property  purchased.  For 
commercial  convenience,  the  mortgage  was 
made  to  the  Central  Trust  Company  of  Cam- 
den, as  trustee;  the  scheme  being  to  later  re- 
place the  bond  of  $175,000  by  negotiable 
I)onds  in  denominations  of  $500  and  $1,000. 
The  defendant  Hurley  was  heavily  interested 
in  this  bond  and  mortgage,  either  as  a  stock- 
holder or  a  creditor  of  the  realty  company. 

At  the  time  of  the  financial  embarrassment 
of  the  freezing  company,  the  three  complain- 
iints,  or  some  of  them,  called  upon  Dr.  Grace, 
the  president  of  the  trust  company,  who,  at 
that  time,  also  represented  Mr.  Hurley  dur- 
ing his  temporary  absence  on  a  vacation  In 
Florida,  for  the  purpose  of  conferring  with 
reference  to  the  condition  of  the  freezing 
company,  with  the  end  in  view,  on  the  part 
of  the  complainants,  of  protecting  their 
claims;  and  as  a  result  of  that  conference, 
it  was  arranged  that  the  complainants  should 
not  precipitate  bankruptcy  or  otherwise  fur- 
ther embarrass  the  situation  or  add  to  the 
precariousness  of  the  freezing  company,  they 
agreeing  to  forbear  prosecuting  their  claims, 
with  the  understan'dlng  that  the  property 
of  the  company  was  to  be  by  the  complain- 
ants and  the  defendant — Grace  acting  for  the 
defendant — conserved  In  the  interest  of  the 
mortgagee  and  the  creditors  at  large  of  the 
freezing  company,  by  buying  up  the  claims 
of  the  smaller  creditors,  If  necessary,  so  as 
to  prevent  action  on  their  part.  That,  gen- 
erally, was  the  agreement  between  the  par- 
ties, as  I  think  it  was  understood  by  all  con- 
cerned, and  to  this  Mr.  Hurley  was  bound, 
because  he  admitted  very  frankly  on  the 
stand  that  Dr.  Grace  represented  him  and 
had  the  power  to  make  such  a  bargain. 

The  realty  company's  mortgage  of  $175,000 
covered  all  of  the  real  and  personal  estate 
of  the  freezing  company,  including  after- 
iicquired  property,  the  personal  proi)orty  not 
being  particularized.  The  realty  company 
failed  to  record  its  mortpage  as  a  chattel 
mortgage,  and  by  this  omission  it  had  lost 


the  benefit  of  the  personal  security.  Hur- 
ley, as  one  of  Its  stockholders  and  creditors, 
was  apprehensive  lest  the  personal  property 
be  seized  and  sold  an'd  the  value  of  the  mort- 
gage security  upon  the  realty  thereby  dimin- 
ished. Anxious  to  keep  the  property  Intact 
as  a  plant,  and  realizing  that  the  mortgage 
would  have  to  be  foreclosed  and  the  property 
bought  In  by  the  mortgagee,  he  hoped  to  sell 
It  to  better  advantage  as  a  unit ;  and  at  the 
time  of  the  conference  the  parties  were  agreed 
that  this  course  would  be  advantageous  to 
all  concerned.  At  the  meeting  It  was  under- 
stood that  the  property  was  Incumbered  by 
mortgages  amounting  to  $60,000,  and  that 
these  mortgages  were  prior  liens  to  the  $175,- 
000  mortgage,  and  were  to  have  been  taken 
up  by  the  proceeds  from  the  sale  of  the  $175,- 
000  of  bonds,  which  never  came  to  pass.  It 
was  also  given  out  and  fairly  understood 
that  there  was  an  equity  In  the  property  over 
and  above  the  $60,000  mortgages,  approxi- 
mately of  from  $30,000  to  $40,000,  although 
the  property  had  been  previously  sold  to  the 
freezing  company  for  a  much  larger  sum. 
The  $60,000  of  mortgages  were,  as  I  recall 
them,  purely  real  estate  mortgages;  and,  al- 
though nothing  was  said  at  the  meeting  in- 
dicating or  differentiating  the  personal  from 
the  real  property  covered  by  the  realty  com- 
pany's mortgage,  it  may  have  been,  and  prob- 
ably was,  assumed  by  the  complainants  that 
all  In  excess  of  $60,000  of  realty  mortgages 
represented  persotial  pr<^erty. 

Shortly  after  the  conference,  two  judg- 
ments were  recovered  against  the  freezing 
company,  and  under  them  tlie  sheriff  of  At- 
lantic county  levied  upon  certain  ma<ditnery 
and  appliances,  part  and  parcel  of  the  Ice 
plant,  and  also  upon  a  few  articles  strictly 
personal,  but  of  very  little  value.  The  prop- 
erty, as  levied  upon,  was  advertised  for  sale, 
of  which  Mr.  Huriey  beard  the  day  before 
the  sale  took  place,  and  without  notifying 
the  defendants  of  what  was  about  to  happen, 
he  attended  the  sale  and  bought  in  the  prop- 
erty for  the  amount  of  the  Judgments — some 
$900.  Upon  a  subsequent  denial  to  the  com- 
plainants that  he  bought  this  property  pur- 
suant to  the  terms  of  the  agreement  and  that 
he  held  It  according  to  the  arrangement,  this 
bill  was  filed  for  the  purpose  of  subjecting  it 
to  the  engagement  and  to  have  It  decreed 
that  Mr.  Hurley  holds  the  property  in  trust 
for  the  benefit  of  the  unsecured  creditors  of 
the  freezing  company.  The  prayer  is  for  a 
receiver  and  an  accounting,  and  for  other  re- 
lief. 

[1]  The  case  very  much  turns  upon  the 
scope  of  the  agreement,  which.  In  effect,  un- 
doubtedly was  that,  If  occasion  demanded, 
the  parties  were  to  join  and  purchase  the 
proijerty  of  their  common  debtor,  so  that 
it  would  not  be  dissipated,  so  that  It  would 
not  suffer  In  value  as  a  unit,  and  so  that  It 
would  produce  the  greatest  results  by  a 
sale  as  a  plant;   and  the  obligation  to  pre- 


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HUGHES  ▼•  HUKIiBT 


199 


s^rre  It  was  imposed  apon  no  matter  wblch 
ot  tbem  might  later  on  come  into  possession 
of  the  property-  by  such  a  purcliase.  And 
right  here  the  question  is,  What  property 
was  involved,  and  what  was  to  be  protected 
as  against  the  action  of  other  creditors? 
Snrely,  not  the  real  estate  incumbered  by 
the  lien  of  the  realty  company's  mortgage, 
except,  peAaps,  the  equity,  and  there  was 
none,  and  obviously  only  the  personal  prop- 
erty of  the  freezing  company,  which,  as  to 
its  common  creditors,  had  been  freed  of  the 
operation  of  the  mortgage  for  failure  to  re- 
cord, could  have  been  the  subject  of  the  pro- 
posed concerted  action.  Further  than  this, 
that  is,  the  chattels,  the  personal  property, 
the  agreement  did  not  extend.  The  fact  tliat 
the  sheriff  8ul>sequaitly  levied  upon  and  sold 
as  personal  property  machinery  and  appli- 
ances which  were  essentially  part  of  the  real 
estate  did  not  enlarge  the  embracement  The 
machinery  and  appliances  so  sold  by  the 
sheriff  to  Hurley  were  annexed  to  and  formed 
a  part  of  the  Ice-maklng  plant,  and  were 
installed  by  the  realty  company,,  and  were 
used  by  it  in  operating  the  plant,  and  were 
annexed  with  Intent  that  they  should  become 
a  part  of  the  realty,  and  as  a  going  concern 
the  plant  was  sold  by  the  realty  c(Mnpany  to 
the  freezing  company,  and  as  a  whole  was 
mortgaged  by  the  latter  to  the  former.  The 
mortgage,  as  I  have  said,  described  the  land 
and  included  the  machinery  and  appliances 
and  all  personal  property  presently  owned 
and  thereafter  to  be  acquired,  without  partic- 
ularizing what  was  personal  property,  but 
it  is  perfectly  plain  that  the  legal  status  of 
the  mortgage  as  a  Hen  upon  the  real  prop- 
erty and  upon  all  that  became  realty  by 
installation  and  annexation  as  a  part  of  the 
plant  was  not  disturbed  nor  the  machinery 
reconverted  by  combining  the  real  with,  but 
wltljout  defining,  the  personal  property,  as 
security,  in  this  document.  The  chattel  fea- 
ture of  the  mortgage  was  designed  to  cover 
such  personal  property  as  horses,  wagons, 
tools,  office  furniture,  etc.,  and  was  not  in- 
tended to  embrace  that  species  of  property  al- 
ready included  and  foniiing  a  part  of  the 
realty.  So,  to  repeat,  we  have  this  situation 
at  tlie  time  the  agreement  was  made:  The 
$175,000  mortgage  was  a  valid  and  subsisting 
and  enforceable  real  estate  lien  upon  the 
plant,  which  lien  covered  aU  that  was  con- 
veyed by  the  realty  company  to  the  freezing 
company,  as  a  part  of  that  plant,  viz.  the 
land  and  the  fixed  machinery  and  appliances 
whl<A  wait  to  make  it  up.  The  legal  conse- 
quences of  tills  lien,  of  course,  were  not,  and 
conid  not  be,  affected  by  the  arrangement, 
and  besides  there  was  no  intention,  as  be- 
teen  the  parties,  to  abridge  its  lawful  sweep, 
and  this  is  so  regardless  of  the  misconception 
of  its  force  and  effect,  entertained,  perhaps, 
by  Dr.  Grace  and  Mr.  Hurley,  or  the  com- 
plainants. It  was  clearly  the  property  of 
the   freezing  company  not  covered   by  the 


mortgage  with  whldi  the  parties  were  con- 
cerned, and  with  reference  to  which  they 
bargained.  Ibere  was  none  other  upon 
which  the  agreement  could  operate,  and  there 
was  no  trust,  except  as  to  that  property. 

[J]  The  defendant  sets  up  that  the  arrange- 
ment was  abandoned  before  Mr.  Hurley  pur- 
chased at  the  sheriff's  sale,  and  for  that 
reason  there  was  no  breach  of  confidence. 
The  parties  again  met  before  the  sale,  and 
Dr.  Grace  says  that  he  gave  them  the  name  of 
the  lawyer  representing  the  two  Judgments 
nnder  which  the  sheriff  afterwards  sold,  and 
suggested  that  they  place  their  claims  in 
his  hands,  at  the  same  time  announcing  that 
his  agreement  was  at  an  end,  and  that  they 
were  free  to  act  as  they  pleased,  so  far  as 
he  was  concerned.  The  complainants  admit 
being  at  the  meeting,  but  emphatically  deny 
that  the  arrangement  was  rescinded.  The 
view  I  take  of  the  case  makes  it  unnecessary 
to  pay  upon  the  veracity  of  the  witnesses. 
They  are  all  truthful  men,  and  undoubtedly 
related  the  facts  and  circumstances  as  they 
were  impressed  upon  their  minds,  clouded 
somewhat  by  the  efflux  of  time,  as  nearly  as 
they  could.  Granting  that  Mr.  Hurley's 
trusteeship  remains,  it  is  to  be  regarded  as 
extending  only  to  the  property  bought  by  him 
at  the  sheriff's  sale,  which  was  unincumbered 
by  the  $175,000  mortgage,  viz.  one  desk,  two 
chairs,  one  work  table,  one  lot  of  tools,  one 
hand  vise,  one  pipe  vise,  and  one  wa^n, 
estimated  to  be  worth  $100,  and  he  having 
for  these  (and  for  the  equity  in  the  machinery 
and  appliances,  the  value  of  which  is  nil) 
paid  $900,  and  as  the  proceeds  were  applied 
to  the  payment  of  preferential  debts,  the 
transaction  is  purged  of  the  alleged  fraud 
and  the  complainants  are  not  aggrieved. 

Complainants'  counsel's  argument  differs 
materially  from  the  attitude  he  assumed 
during  the  trial  as  I  understood  him  then, 
and  he  now  concedes  that  the  machinery  and 
appliances  are  a  part  of  the  plant  and  realty 
incumbered  by  the  $175,000  mortgage;  and, 
as  I  now  understand  his  position,  he  contends 
that,  notwithstanding,  his  clients  are  en- 
titled to  recover  to  the  extent  of  their  value 
simply  because  they  forebore  prosecuting 
their  claims,  and  that  it  makes  no  difference 
whether  the  machinery  is  real  or  personal 
or  whether  it  was  incumbered  by  the  mort- 
gage or  not,  it  was  held  out  to  be  personal 
property,  or  assumed  to  be,  and  that  Hurley, 
in  consideration  of  the  forbearance  and  the 
benefits  which  would  fiow  therefrom  to  the 
security  of  the  realty  mortgage,  agreed  that, 
as  between  the  parties,  the  property  was  to  be 
regarded  as  personalty.  I  cannot  entertain 
this  proposition  of  defendant's  accountability, 
nor  can  the  statement  by  Dr.  Grace  that  the 
plant  was  worth  $90,000  or  $100,000,  and  that 
the  mortgage  Indebtedness  upon  it  was  some 
$60,000.  and  that  there  was  an  equity  of 
aroroxlinately  from  $30,000  to  $40,000  be 
interpreted  as  an  undertaking  that  the  differ- 


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101  ATLANTIC  REPORTEE 


(N.J. 


ence  was  to  accme  to  the  common  creditors, 
it  no  action  were  taken,  or  that  of  this 
estimated  amount  the  ralne  of  the  machinery 
and  appliances  was  to  be  so  applied.  As  I 
have  said  before,  that  might  have  been  the 
assumption  of  the  complainants,  but  In  the 
very  nature  of  things,  It  seems  to  me,  the 
agreement  could  not  have  been  so  contemplat- 
ed hy  the  parties.  There  Is  nothing  in  the 
testimony  from  whldi  it  might  be  even  in- 
ferred that  the  realty  company  was  to  sur- 
render any  of  Its  rights  secured  by  its  mort- 
gage, whatever  they  might  prove  to  be,  and 
It  Is  but  reasonable  to  assume  that  the  par- 
ties dealt  with  that  understanding.  The 
transaction  will  not  admit  of  the  construc- 
tion that  the  machinery  and  ai^Ilances  were 
to  be  considered  as  the  subject  of  the  trust, 
regardless  of  their  legal  character  and  the 
lien  to  which  they  were  subject;  nor,  to 
repeat,  can  it  be  allowed  thai  their  seizure 
and  sale  as  personal  property,  and  their 
purchase  by  Hurley,  worked  a  change.  The 
sale  was  a  mere  incident,  upon  which  the 
complainants  have  seized  to  measure  their 
damage.  To  follow  counsels'  reasoning  leads 
to  a  personal  responsibility  upon  the  pert 
of  Hurley,  to  the  value  of  the  machinery  and 
appliances,  admittedly  wrongfully  seized  as 
personal  property,  wholly  independent  of  any 
breach  of  trust,  although  breach  of  trust  Is 
the  gravamen  of  the  bill.  In  flne,  the  ar- 
gument is  that,  even  if  the  realty  company, 
upon  a  foreclosure  of  its  mortgage  rightfully 
sold  this  property — a  thing  which  it  has  done 
since  this  snit  was  begun — and  Hurley  failed 
to  secure  and  hold  it  for  the  common  credi- 
tors, by  purchase  or  otherwise,  his  liability 
would  be  absolute;  that  is,  having  failed 
to  wrest  it  from  Its  true  owner,  he  must 
respond.  Suppose  the  plant  had  been  sold 
by  an  insolvency  receiver,  free  of  the  mort- 
gage :  Could  he  have  been  held,  If  the  court 
declined  to  distribute  the  proceeds  of  sale,  to 
the  value  of  the  machinery,  amongst  the  un- 
secured creditors?  Manifestly  such  a  bur- 
den was  not  within  the  letter  or  spirit  of 
the  defendant's  engagement,  and  the  bUl 
must  be  dismissed,  with  costs. 

(90  N.  J.  Law.  st») 

EISELB  et  al.  v.  RAPHAEIi. 

>Court  of  ESrrors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(St/Valui  hy  the  Court.) 

Appeai,  AND  Ebroe  <S=>931(1)— Striking  Fbiv- 
ot.ou8  Pt,ea— Rule  of  Coub't— Conclusive- 
ness OF  Finding. 
Rule  80  of  the   Supreme  Court   (100  Atl. 
zziii)  declares  that  a  frivolous  or  sham  plea  may 
be  stricken  out,  upon  proper  affidavit  in  support 
of  a  motion  for  that  purpose,  unless  the  defend- 
ant by  nflidavit  or  other  proof  shall  show  such 
facts  as  may  be  deemed,  by  the  judge  hearing 
the  motiou,  sufficient  to  entitle  him  to  defend. 
Under  this  rule,  the  finding  of  the  ju<l!?e  must  be 
taken  as  true  until  the  contrary  appears,  and 
this  is  80  when  an  appeal  is  taken  from  such 


an  order  as  permitted  by  section  IS  of  the  Prae- 
ace  Art  of  1912  (P.  L.  p.  380). 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  3762.] 

Gummere,  C  J.,  and  Swayze  and  Parker,  JJ., 
dissenting. 

Appeal  from  Supreme  Court 

Action  by  John  Elsele  and  Nathanlal  King, 
partners  trading  as  Elsele  &  King,  against 
Ellas  Raphael.  From  an  order  of  the  Su- 
preme Court  striking  out  the  answer  and 
entering  Judgment,  defendant  appeals.  Af- 
firmed. 

Levltan  &  Levltan,  of  Jersey  City,  for  ap- 
pellant Edgar  W.  Hunt,  of  Lambertvllle, 
for  appellees. 

BERGEN,  J.  This  action  was  brought  by 
the  plaintiffs  to  recover  from  the  defendant 
a  balance  due  on  an  account  relating  to  the 
purchase  and  sale  of  the  capital  stock  of 
certain  corporations,  bought  and  sold  on  what 
is  commonly  called  a  "margin,"  which  it  la 
alleged  the  defendant  refused  to  take  up 
and  pay  for,  and  thereupon  plaintiffs  sold  the 
stocks  on  the  New  Tork  Stock  Exchange  for 
less  than  they  cost  The  defendant  had  made 
a  deposit  to  be  applied  on  account  of  such 
purchases  pledging  the  stock  to  secure  the 
balance  of  the  purchase  price  advanced  by 
the  plaintiffs,  and  recovery  is  sought  for  the 
difference  between  the  sum  of  the  proceeds 
of  the  sale  and  deposit,  and  the  cost  The 
answer  denied  each  paragraph  of  the  com- 
plaint in  such  a  manner  as  to  amount  to  a 
general  denial  of  all  the  allegations  set  out 
in  it  and  then  stated,  as  separate  defenses: 
(1)  That  the  complaint  did  not  state  a  cause 
of  action.  We  think  that  the  complaint  does 
state  a  cause  of  action.  (2)  That  defend- 
ant had  on  deposit  with  the  plaintiffs  cer- 
tain shares  of  stock  which  they  sold  with- 
out BufBdent  notice  to  the  defendant.  (3) 
That  when  the  deposit  of  the  defendant  was 
exhausted  plaintiffs  continued  to  buy  and 
sell  stocks  for  the  defendant's  account  with- 
out demanding  an  additional  margin.  This, 
if  true,  would  be  no  defense  if  the  defendant 
gave  orders  to  purchase  and  they  were  ex- 
ecuted; for  it  waa  nothing  more  than  ex- 
tending him  credit  Defendant  also  filed  a 
counterclaim  for  the  deposit  and  an  alleged 
conversion  of  stock  which  the  defendant 
claims  the  plaintiffs  had  purchased  for  him. 
The  plaintiffs  moved  to  strike  out  the  answer 
and  counterclaim  as  frivolous  and  sham, 
which  motion  was  heard  by  a  justice  of  the 
Supreme  Court  on  affidavits  read  on  behalf 
of  plaintiffs  and  answering  affidavit  of  the 
defendant  The  justice  struck  out  the  an- 
swer and  counterclaim  and  ordered  a  judg- 
ment for  plaintiffs,  from  which  the  defend- 
ant has  appealed. 

That  an  order  striking  out  an  answer  and 
the  entering  of  a  summary  judgment  rested 
in  discretion  and  was  not  the  subject  of  a 
writ  of  error,  prior  to  the  Practice  Act  of 


4=9For  other  oases  m«  same  toplo  and  KKT-NUMBER  In  all  Ke7-NuiiilMrod  Dlgeats  aod  Indoza* 


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N.J  J 


EISELE  ▼.  RAPHABL 


201 


1912,  has  been  long  settled  In  this  state  and 
is  not  open  to  argument  (State  Mutual  B. 
&  I*  Asa'n  V.  WUUams,  T8  N.  J.  Law,  720,  75 
Atl.  927);  but  It  Is  claimed  that  the  Prac- 
tice Act  of  1912  has  altered  the  rule  In  this 
state.  This  is  so  to  the  extent  of  allowing 
an  appeal  and  a  review  of  such  an  order. 

Section  16  of  the  new  Practice  Act  pro- 
vides that: 

"Subject  to  rules,  any  frivolous  or  sliam  de- 
fense ♦  •  •  may  be  struclc  out;  or  if  it  ap- 
pear probable  that  the  defense  ia  frivolous  or 
ibam,  the  defendant  may  be  allowed  to  defend 
on  terms.  Defendant,  after,  final  judgment, 
may  appeal  from  any  order  made  against  him 
nnder  this  section." 

This  section,  being  made  expressly  "sub- 
ject to  rales,"  must  be  rend  In  connection 
with  rules  80  to  84,  Inclusive  [100  Atl.  xxlll, 
xxlv],  relating  to  the  entry  of  summary 
judgments.    Eule  80  provides  that : 

"The  answer  may  be  struclc  out  and  judgment 
final  may  be  entered  upon  motion  and  affidavit 
as  hereinafter  provided,  unless  the  defendant  by 
affidavit  or  other  proofs  shall  show  such  facts 
as  may  be  deemed,  by  the  ^udge  hearing  the 
motion,  sufficient  to  entitle  lum  to  defend." 

Rule  81  reqnlres  that  the  motion  to  strike 
ont  be  made  upon  affidavit  of  "the  plaintiff 
or  that  of  any  other  person  cognizant  of  the 
facts  verifying  the  cause  of  action,  and  stat- 
ing the  amount  claimed,  and  his  l)elief  that 
there  Is  no  defense  of  the  action."  Reading 
the  rules,  to  which  the  statute  Is  subject, 
and  the  statute  together,  a  plaintlir  will 
be  entitled  to  a  summary  judgment  upon  pre- 
senting an  affidavit  complying  with  rule  81, 
which  should  set  out  fuUy  the  facts  upon 
wlilch  the  cause  of  action  is  based,  unless 
the  defendant  by  affidavit  or  other  proof 
shall  show  facts  deemed  by  tbe  Judge  hear- 
ing the  motion  sufficient  to  entitle  him  to 
defend.  This  confers  upon  the  Judge  the 
power  to  determine  the  sufficiency  of  the 
facts  set  up  by  the  defendant,  and  his  con- 
clusion that  they  are  not  sufficient  should  not 
be  set  aside  unless  the  sufficiency  clearly  ap- 
pears. In  the  present  case,  the  affidavits  of 
the  plaintiffs  show  that  they  were  stock- 
brokers; that  defendant  deposited  with  them 
a  maigin  to  cover  stock  purchases;  that  he 
ordered  purchases  and  sales,  and  they  ad- 
vanced to  him  the  difference  between  the 
cost  of  the  stock  and  the  deposit  holding  the 
stock  in  pledge  to  secure  the  repayment  of 
such  advances;  that  each  purchase  and  sale 
was  reported  to  the  defendant  on  a  printed 
statement  containing  a  notice  that  It  was 
understood  and  agreed  between  the  defend- 
ant and  plaintiffs  that  all  stock  bought  for 
the  defendant,  and  so  held  In  pledge,  could 
be  sold  without  demand  for  a  further  mar- 
gin, or  notice  of  a  sale  of  the  stock  whenever 
such  gale  was  deemed  necessary  by  the  plain- 
tiffs for  their  protection ;  that  defendant  re- 
fused on  demand  to  take  up  and  pay  for  the 
stock  purchased  for  him  or  to  deposit  addi- 
tional money  to  protect  the  plaintiffs  from 
loss;  that  they  thereupon  sold  the  stock  In 
the  open  market  at  public  sale  oa  the  New 


York  Stock  Exchange  to  protect  them  from 
further  loss;  that  the  stock  did  not  sell  for 
a  sum  which,  with  the  deposit  added,  was 
sufficient  to  cover  the  cost ;  and  that,  having 
exhausted  the  pledge,  there  still  renmlned 
a  balance  due  to  them.  Without  further 
statement  of  plaintiffs'  proofs  submitted  to 
the  Judge,  it  is  sufficient  to  say  that  by  them 
It  was  conclusively  shown  that  defendant 
was  liable  to  the  plaintiffs  for  the  amount 
claimed. 

The  facts  set  up  by  the  defendant's  affida- 
vit are  these: 

(a)  That  he  never  read  the  agreement  giv- 
ing the  plaintiffs  the  right  to  sell  the  stock 
without  demand  or  notice.  This,  if  true, 
would  not  be  a  defense,  for  the  agreement 
was  printed  on  every  statement  sent  him  for 
each  purchase  and  sale,  about  SO  in  numt>er, 
and  these  he  accepted  and  held  as  evidence 
of  his  contract  of  purchase. 

(b)  That  he  did  not  order  plaintiffs  to  buy 
certain  stocks  which  are  speciflenlly  set  out, 
but  in  the  next  paragraph  of  his  affidavit  he 
says  that  these  purchases  were  not  made  in 
September,  1915,  as  he  had  previously  testi- 
fied, "but  by  the  notices  In  my  possession 
appear  really  to  have  taken  place  in  Octo- 
ber." This  ia  an  admission  that  he  had 
notice  of  the  purchase  of  this  stock,  and 
he  says  In  one  of  his  affidavits: 

"I  did  not  object  when  I  found  out,  because  I 
thought  the  said  Pope  was  doing  the  right  thing 
by  me." 

He  now  claims  tliat  these  purchases  were 
not  made  by  his  order,  but,  if  this  be  true, 
it  was  his  duty  to  object  at  once  and  not  wait 
and  have  them  held  for  him  with  the  ex- 
pectation of  a  profit,  to  be  repudiated  \t  he 
subsequently  found  that  the  purchase  result- 
ed In  a  loss.  He  had  an  account  with  the 
plaintiffs  to  whom  he  admits  that  he  gave 
numerous  orders  to  purchase  and  sell  stocks, 
and,  as  soon  as  be  fdund  out  that  a  purdiase 
had  been  made  for  him  which  he  had  not 
ordered,  it  was  his  duty  to  promptly  disavow 
it  and  not  speculate  on  the  result,  whidi  if 
favorable  he  could  avail  himself  of  and  if 
unfavorable  repudiate.  Under  the  facts  set 
out  in  his  own  affidavit,  his  conduct  amount- 
ed to  a  ratiflcation  of  the  purchase. 

(c)  That  he  never  ordered  plaintiffs  to  pur- 
chase two  lots  of  stock  which  he  names,  but 
as  the  purchase  and  sale  of  these  two  lota 
resulted  In  a  profit  to  him  he  suffered  no  loss, 
for  Ills  account  had  been  credited  with  the 
profit  and  does  not  enter  into  this  contro- 
versy except  to  his  advantage. 

(d)  That  he  was  not  given  notice  to  make 
any  additional  deposit  of  a  margin.  TUa 
was  not  required  under  his  wmtract,  and  he 
knew  that  at  any  time  he  could  take  up  the 
stock  purchased  for  him  by  paying  the  bal- 
ance due. 

There  is  nothing  in  the  defendant's  af- 
fidavit which  entitles  him  to  have  this  court 
reverse   the  finding  of   the  Judge  that  be 


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101  ATIiANTIO  REPORTER 


(N.J. 


deemed  the  facts  shown  by  the  defendant  to 
be  Insufficient  to  entitle  him  to  defend. 

The  record  shows  that  from  September  7 
to  November  1,  1915,  a  period  of  less  than 
two  months,  this  defendant  dealt  In  over 
2,700  shares  of  stock  at  a  total  cost  of  ?134,- 
821,  and  that  over  SO  purchases  and  sales 
were  made  for  him  by  the  plaintiffs  from 
which  he  reaped  a  profit  In  nearly  every 
case,  except  In  the  5  transactions  which  he 
now  seeks  to  repudiate,  which  shows  that  he 
was  an  active  and  rather  a  liberal  speculator 
la  stocks  and  in  most  Instances  a  successful 
one. 

The  order  of  the  Judge  In  this  case  declares 
that  the  answer  filed  Is  frivolous  and  a  sham, 
and  that  the  defendant  failed  to  show  such 
facts  as  he  deemed  sufficient  to  entitle  him 
to  defend.  The  finding  of  the  Judge  must  be 
assumed  to  be  true  until  the  contrary  ap- 
pears, and,  as  it  does  not  appear  in  this 
<.ase,  the  finding  must  be  taken  as  correct 
ijtrlking  out  a  sham  or  frivolous  plea  Is  not 
11  u  infringement  of  the  right  of  trial  by  Jury. 
A  plea  of  general  issue,  although  it  denies 
the  entire  claim  of  the  plaintiffs,  and  ap- 
parently raises  a  question  of  fact.  Is  not  pro- 
tected for  that  reason  against  a  motion  to 
strike  out  as  sham  or  frivolous.  Coykendall 
V.  Robinson,  39  N.  J.  Law,  98. 

As  to  the  counterclaim  based  upon  the 
conversion  of  stock,  we  do  i»ot  perceive  how 
there  could  be  a  conversion  to  defendant's 
Injury  by  the  sale  of  stock  to  raise  the  money 
necessary  to  pay  a  loan  for  the  security  of 
which  the  stock  was  pledged. 

The  Judgment  will  be  affirmed,  with  costs. 

GUMMERE,  G.  J.,  and  SWAYZE  and 
PARKER,  JJ.,  dissenting. 


(90 


N.  J.  Law,  717) 
ROSE  v.  nTZGERALD. 


(No. 


89.) 
Jersey. 


(Court  of  Errors  and  Appeals  of  New 
June  18,  1917.) 

1.  Appeal  and  Erbob  «=>575— TBANacRiPT— 
Necessity  of  Legal  Appointment  of  Stb- 
noobapiies. 

A  stenographic  transcript  of  testimcmy  on 
appeal  bas  no  value,  where  the  record  does  not 
show  that  the  stenographer  was  appointed  pur- 
suant to  the  statute. 

2.  Husband  and  Wife  *=>232(1)  —  Action 
FOB  Wife's  Debts— Bubdkn  of  Pboof— No- 

TICB. 

In  an  action  against  a  husband  for  bill  in- 
curred by  his  wife,  the  burden  was  on  the  hus- 
band to  Hhow  that  the  plaintiff  saw  a  notice  on 
the  husband's  check  that  no  more  credit  was  to 
be  given  to  the  wife. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  g§  844,  981.] 

3.  Appeal  and  Error  «=»604(S)— Unofficial 
Tbanbcbipt  —  Impeachment  of  C!oubt's 
Statement. 

The   silence  of  an   unofficial   transcript  on  |      _..   „_   .    _^ 

appeal  ns  to  evidence  will  not  be  taken  as  im-    nssisnod  that  should  lend  to  a  reversal,  amj 
Iienohinff  a  statement  of  the  case  settled  by  the '  judgment  will  therefore  be  affirmed 


trial  judge  whidi  included  a  stenographic  tran- 
script 

[Ed.  Note.— For  other  cases,  see  A|q>eal  and 
Error,  Cent  Dig.  {  28SS.] 

4.  Appeal  and  EIbbor  «=»206(1)— Neoessitt 
of  objection  to  evidence. 

The  ruling  that  evidence  as  to  what  were 
necessaries  for  which  the  husband  was  liable 
was  part  of  the  defense  will  not  be  considered 
on  api>eal,  where  it  was  not  objected  to  at  the 
trial. 

[Kd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  U  128»-12S5.] 

5.  Appeal  and  Ebbob  «=»719i(5)— Necessitt 

OF  ijI-ECIFriNa'CiBOUNDS  OF  Ebbob. 
Where  a  ruling  relating  to  evidence  was  not 
specified   as   a  ground   of  error,  it  will  not  be 
considered  on  appeal. 

[Eki.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  Ii  2974,  3490.] 

6.  Appeal  and  Ebbob  «=9724(2)— Sufficien- 
cy OF  ■General  Objection. 

The  general  objection  that  the  defendant  did 
not  have  a  fair  trial  presents  no  question  on 
appeal, 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §S  2997,  2998,  3022.] 

Appeal  from  Supreme  Court. 

Action  by  Harry  Rose  against  Benjamin 
G.  Fitzgerald.  Judgment  for  plaintiff,  and 
defendant   appeals.     Affirmed. 

The  following  Is  the  opinion  below: 

This  was  a  suit  against  a  husband  to  collect 
the  amount  of  a  bill  for  tailoring  done  for  the 
wife.  There  was  a  judgment  for  the  plaintiff 
below.  The  defense  was  mainly  based  upon  the 
claim  that  the  plaintiff  had  been  uotitied  by  th<! 
husband  not  to  give  any  credit  to  the  wife  and 
also  that  the  articles  furnished  were  not  neces- 
saries. After  the  suit  was  begun,  the  wife  paid 
a  part  of  the  bill,  leaving  a  balance  of  $4>>. 
which  was  the  basis  of  the  judgment 

[1]  Appellant  has  put  in  what  appears  to  be 
a  stenographic  transcript  of  the  testimony  tak- 
en in  the  court  below,  but  there  is  nothing  in 
the  record  to  show  that  a  stenographer  was  ap- 
pointed pursuant  to  the  statute,  and,  unleae 
there  was  an  appointment,  the  transcript  hns 
no  value.  On  the  other  hand,  there  is  a  state- 
ment of  the  case  settled  by  the  trial  judge, 
which  naturally  excludes  a  stenographic  tran- 
script. The  alleged  errors  called  to  our  atten- 
tion are  the  following: 

[2,3]  First  That  the  conrt  found  against 
uncontradicted  evidence  that  the  plaintiS  did 
not  see  a  written  notice  upon  the  dofendaut's 
check  that  no  more  credit  was  to  be  given  to 
the  wife.  The  burden  was  on  the  defendant  to 
show  that  the  plaintiff  did  see  this  notice,  and 
the  judge  certifies  that  th?  plaintiff  testified 
that  if  tie  clause  was  there  he  did  not  see  it, 
while  the  transcript  is  silent  On  this  point  "We 
tliink  we  should  not  take  the  silence  of  the 
unofficial  transcript  as  impeaching  the  state- 
ment of  the  court  to  the  contrary. 

[4,5]  The  same  may  be  said  as  to  the  otvurt'a 
finding  that  the  defendant  did  not  supply  his 
wife  with  necessaries.  The  ruling  *hat  evi- 
dence as  to  what  were  necessaries  was  part  of 
the  defense  is  complained  of  in  the  brief,  but 
WHS  not  objected  to  at  the  trial  and  waa  not 
specified  as  a  ground  of  error. 

[6]  'Third  and  fourth.  It  is  objected  general- 
ly that  the  defendant  did  not  have  a  fair  trial. 
A  general  objection  of  this  character,  of  conrso) 
counts  for  nothing. 

We  find,  no  error  of  the  trial  court  properly 


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ARMBRECHT  t.  DELAWARE,  Jj.  tt  W.  R.  CO. 


203 


J.  J.  Crandall  and  James  A.  Llghtfoot,  both 
of  Atlantic  City,  for  appellant.  Morris 
Bloom,  of  Atlantic  City,  for  appellee. 

PER  CURIAM.  The  Judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  in  the  opinion  of  the  Supreme  Court 


(M  N.  J.  lAw.  Et») 

ARMBRECHT  ▼.  DEI^WARE,  U  &  W.  B. 
CO.    (No.  111.) 

(Cooit  of  E<rrors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(Byllahut  by  the  Court.) 
MAaTBB  AND  Skevant  «=>284(1),  286(1),  288(1) 
—Federal  Liabilits  Act— Question  fob 
JuBT — Employment  in  Intebstatk  Com- 
MEBCE — Negligence — Assumption  of  Risk. 
In  an  action  under  the  federal  Employers' 
Uability  Act  (Act  April  22,  1908,  c.  149,  35 
Sut.  65  [V.  S.  Comp.  St.  1916^  §S  8657-8UC5]), 
it  was  open  to  the  jury  to  infer  from  the  evi- 
dence that  the  plaintiff's  intestate  was  engaged 
in  removing  snow  from  the  tracks,  both  inter- 
state and  intrasUte,  of  a  railway;  that  the 
work  had  been  only  temporarily  suspended; 
that  the  men  were  told  by  the  boss  to  go  in  a 
covered  car,  as  it  was  raining  and  freezing  at 
the  time;  that  to  do  so  they  walked  along  the 
tracks  because  they  could  not  go  otherwise,  and 
decedent  was  struck  and  killed  by  a  fast  pas- 
senger train  considerably  behind  time;  that 
there  was  a  failure  to  warn  him  that  the  pas- 
senger train  was  behind  time  and  might  be  ex- 
pected. HM,  that  it  was  for  the  jury  to  say 
whether  the  decwlcnt  was  engaged  in  interstate 
commerce,  whether  there  was  negligence  on  the 
part  of  the  railway  company,  and  whether  the 
decedent  had  assumed  the  risk. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  Si  1000,  1001,  1008,  1008, 
\0e»,  1687,  1088.] 
An>eal  from  Circuit  Court,  Hudson  County. 
Action  by  Augusta  Armbrecht,  administra- 
trix, against  the  Delaware,  Lackawanna  & 
Western  Railroad  Company.  Judgment  for 
plaintitr,  and  defendant  appeals.    ASlnued. 

Maximilian  M.  Stallmau,  of  Newark  (Fred- 
eric B.  Scott,  of  New  York  City,  on  the  brief), 
for  appellant  Alexander  Slmpeon,  of  Jersey 
City,  for  appellee. 

SWATZE,  J.  This  Is  an  action  under  the 
federal  Employers'  Liability  Act  There  was 
eTidence  from  which  the  Jury  might  infer 
that  the  deceased  was  engaged  In  removing 
snow  from  the  tracks  both  intrastate  and  In- 
terstate at  the  Port  Morris  yard;  that  after 
working  for  some  time  it  became  necessary 
to  back  the  work  train  east  some  four  miles 
to  Chester  Junction,  for  the  purpose  of  get- 
ting back  to  the  Port  Morris  yard  on  the 
west-bound  tracks;  that  more  snow  was  to 
be  removed;  that  the  train  was  held  some 
minutes  at  Chester  Junction;  that  the  men 
were  told  by  the  "boss"  to  go  In  the  covered 
car  as  It  was  raining  and  freezing  at  the 
time;  that  to  do  so,  they  walked  along  the 
tracks  becanse  tliey  could  not  go  otherwise; 
that  a  fast  passenger  train  came  along  con- 1 


siderably  behind  time,  struck  the  men  on 
the  track,  and  killed  plaintiff's  Intestate; 
that  there  was  no  warning  that  it  was  be- 
hind  time  and  might  be  expected. 

The  trial  Judge  left  it  to  the  Jury  to  say 
whether  the  deceased  was  engaged  In  Inter- 
state commerce  and  whether  there  was  neg- 
ligence on  the  part  of  the  defendant  We 
think  the  evidence  required  him  to  take  this 
course.  The  fact  that  there  was  a  temporary 
cessation  la  the  work  of  removing  snow,  and 
a  temporary  rest  from  work,  did  not  require 
a  finding  that  the  decedent  at  the  moment 
of  the  aoddent  was  not  engaged  in  interstate 
commerce;  nor  do  we  think  that  the  fact 
that  he  was  about  to  take  refuge  from  the 
storm  in  the  covered  car  makes  any  differ- 
ence. That  was  a  mere  Incident  of  the  em- 
ployment, which  did  not  thereby  change  Its 
general  character.  The  work  was  the  remov- 
al of  snow  from  railway  tracks,  interstate 
as  well  as  Intrastate;  it  had  merely  suf- 
fered a  temporary  interruption  due  to  the 
necessities  of  traffic  on  a  busy  railway  and 
in  some  degree  to  the  inclemency  of  the 
weather.  It  is  enough  to  refer  to  N.  T.  Cen- 
tral R.  R.  V.  Carr,  2.38  U.  S.  260,  35  Sup. 
Ct.  780,  59  L.  Ed.  1298,  and  to  Shanks  v. 
Delaware,  I^ckawanna  &  Western  R.  R.,  239 
U.  S.  556.  36  Sup.  Ct.  188,  60  L.  Ed.  436,  L.  R. 
A.  1916C,  797,  as  showing  the  line  of  cleav- 
age between  the  cases.  Other  cases  are  cit- 
ed in  the  oi)inlon  in  the  Shanks  Case.  What 
we  hare  said  Is  enough  to  distinguish  the 
present  case  from  Minneapolis  &  St.  Loula 
R.  R.  Co.  V.  Winters,  242  U.  S.  333,  37  Sup. 
Ct  170,  61  L.  Ed.  358,  and  to  bring  it  with- 
in the  principle  of  Louisville  &  Nashville  R. 
Co.  V.  Parker,  242  U.  S.  13,  37  Sup.  Ct  4.  61 
L.  Ed.  119.  Other  recent  cases  on  one  side 
or  the  other  of  the  line  are  Erie  R.  R,  Co. 
V.  Welsh,  242  U.  S.  303,  37  Sup.  Ct  116,  81 
L.  Ed.  319 ;  Illinois  Central  R.  R.  Co.  v.  Peery, 
242  U.  S.  292,  37  Sup.  Ct  122,  61  L.  Ed.  809. 

The  question  of  negligence  is  more  difficult 
The  failure  of  the  engineer  of  the  passenger 
train  to  blow  a  whistle  until  too  late  for  any 
good  does  not  indicate  negligence,  since  he 
could  not  be  supposed  to  anticipate  that  men 
would  be  walking  on  the  track  at  that  point. 
But  we  think  the  failure  to  warn  the  men 
that  the  passenger  train  was  behind  time  and 
might  be  expected  is  sufficient  to  sustain  the 
verdict,  since  the  Jury  might  have  believed 
the  evidence  that  the  boss  told  the  men  to  go 
to  the  covered  car,  and  that  there  was  no  way 
to  go  except  along  the  track.  This  disposes 
also  of  the  question  of  the  assumption  of 
risk.  No  doubt  a  railroad  employe  or  any 
one  else  assumes  the  risk  of  walking  on  the 
track,  but  it  does  not  follow  that  he  assumes 
the  risk  of  being  struck  by  a  train  which 
he  may  well  think  had  gone  by.  The  request 
to  charge  did  not  embody  all  the  pertinent 
facts.  We  find  it  difficult  to  understand  what 
the  Judge  had  In  mind  when  he  told  the  Jury 
that  they  might  take  Into  consideration  the 


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101  ATIiAKTIO  ItEPORTEK 


(N.J. 


speed  of  the  passenger  train  In  considering 
the  other  charges  of  negligence,  bnt  as  he  had 
Just  charged  that  the  speed  of  the  train  did 
not  present  a  question  of  negligence,  because 
tbe  company  had  the  right  to  exercise  Its 
Judgment  In  that  respect,  we  think  no  harm 
could  have  been  done  the  defendant  by  that 
portion  of  the  charge  which  Is  made  a  ground 
of  appeal. 
The  Judgment  Is  affirmed,  with  costs. 


(90  N.  J.  Law,  6G5) 

PEOPLE'S  NAT.  BANK   OF  TARANTUBI, 
PA.,  ▼.  CRAMER. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

Banks  ano  Banking  $=3ll6(2)  —  Notick  to 

Cashier  as  Notice  to  Bank. 
Although  cashier  of  bank  discounting  notes 
knew  that  payee  indorser  was  in  danger  of  going 
into  receivershipi,  he  being  an  officer  in  that  com- 
pany, this  did  not  prevent  bank  from  becoming  a 
holder  in  due  course,  where  cashier  did. not  know 
of  the  outstanding  contract  with  the  payee  for 
which  the  note  was  given,  and  which  the  payee 
failed  to  perform  in  part,  and  it  was  immaterial 
that  the  payee  went  into  the  hands  of  a  receiver 
two  days  following  the  discounting  of  the  note, 
or  that  the  cashier  advised  calling  the  meeting 
for  that  purpose. 

[Eld.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  {  283.] 

Appeal  from  Supreme  Court. 

Suit  by  the  People's  National  Bank  of  Ta- 
rantum,  Pa.,  against  WilUam  E.  Cramer. 
Judgment  for  plaiutlfr,  and  defendant  ap- 
peals.   Affirmed. 

Joseph  Beck  Tyler,  of  Camden,  for  appel- 
lant Grey  &  Archer,  of  Camden,  for  appel- 
lee. 

WHITE,  J.  This  Is  a  suit  upon  a  promis- 
sory note  given  by  the  defendant  appellant, 
Cramer,  as  drawer,  to  the  Fidelity  Glass 
Company,  as  payee,  in  payment  for  a  carload 
of  glass  bottles  purchased  and  delivered, 
which  note  was  discounted  prior  to  maturity 
with  the  plaintifF  respondent  bank  (the  pro- 
ceeds being  duly  placed  to  payee's  creditX 
and  upon  maturity  was  not  i>ald.  The  de- 
fense is  that  the  csrload  of  glass  bottles  in 
question  was  part  of  five  carloads  contracted 
to  be  delivered  by  the  payee  to  Cramer  at  a 
fixed  price;  that  the  payee  went  into  the 
hands  of  a  receiver,  and  the  remaining  four 
carloads  of  the  contract  were  never  delivered, 
so  that  Cramer  was  compelled  to  buy  else- 
where at  a  loss  of  more  than  the  amount  of 
the  note;  that  the  bank  Is  chargeable  with 
this  defense  because  its  cashier,  Crawford, 
WAS  given  general  authority  by  the  directors 
to  discount  notes,  and  did  tn  fact  discount 
this  note ;  that  at  the  time  he  did  so,  which 
was  two  days  before  the  receiver  was  applied 
for,  he  was  also  the  treasurer  and  a  member 
of  the  board  of  directors  of  the  payee.  Fidel- 
ity Glass  Company,  and  as  such  knew  that 


that  company  had  been  losing  money;  that  it 
was  going  from  bad  to  worse;  that  the  man- 
ager told  him  that  It  conld  not  fill  Its  exUt- 
Ing  contracts  by  reason  of  the  advance  In 
cost  of  materials,  etc. ;  and  that  on  the  same 
day  he  was  told  this,  which  was  the  day  he 
discounted  the  note,  he  advised  the  manager 
to  call  a  meeting  of  the  board  of  directors  of 
the  Fidelity  Glass  Company,  at  which  meet- 
ing It  was  decided  to  apply  for  a  receiver. 
Whether  the  payee  was  in  fact  Insolvent  Is 
uncertain.  Under  the  receivership  it  paid 
its  creditors  92  cents  on  the  dollar.  The 
learned  trial  Judge  directed  a  verdict  for  the 
plalntiCr  for  the  full  amount  of  the  note,  with 
interest  on  the  ground  that  the  cashier 
Crawford's  knowledge  of  these  facts  was  not 
Impotable  to  the  bank  because  he  acquired  it 
not  while  acting  for  the  bank,  and  because  in 
the  transaction  in  which  he  was  acting  for 
the  bank  his  interests  as  an  officer  of  the 
payee,  the  Fidelity  Glass  Company,  were 
opposed  to  those  of  the  bank. 

Upon  this  view  we  express  no  opinion  be- 
cause we  do  not  find  It  necessary  to  do  so, 
for  the  reason  that,  assuming  that  all  the 
knowledge  which  the  cashier  was  proved  to 
possess  was  properly  imputable  to  the  bank 
itself,  the  latter  still  became  a  holder  for 
value  in  due  course  without  notice  of  the  de- 
fense here  set  up,  because  it  is  not  shown  that 
the  cashier,  either  as  snch  or  as  treasurer 
and  director  of  the  Fidelity  Glass  Company, 
knew  of  the  outstanding  contract  with  the 
drawer,  Cramer,  for  the  other  four  carloads. 
The  evidence  shows  that  the  running  of  the 
business  of  the  Fidelity  Glass  Company  was 
in  the  hands  of  a  manager,  and  in  fact  the 
cashier  testifies  that  he  had  no  snch  knowl- 
edge, and  he  is  not  contradicted.  Without 
such  knowledge  It  Is  obvious  that  It  made  no 
difference  whatsoever  to  the  bank's  standing 
as  a  holder  for  value  in  due  course  that  It 
knew  the  payee  indorser  of  this  note,  given 
for  goods  sold  and  delivered,  was  losing  mon- 
ey, was  In  a  bad  way,  and  In  danger  of  hav- 
ing to  go  Into  the  hands  of  a  receiver.  If  it 
were  otherwise,  much  of  the  bank's  useful- 
ness In  enabling  people  in  financial  difficulties 
to  avoid  disaster  would  be  destroyed. 

The  Judgment  is  affirmed. 


(87  N.  J.  Eq.  387) 
TH*rOW  et  al.  v.  RANDAI-.L  et  al.  (No.  4S/1.) 

(Court  of  Chancery  of  New  Jersey.    April  27, 
1917.) 

(SyUalus  Iv  the  Court.) 

1.  EUjUITT    €=204 — ^MiOTION    TO    StBIXK    OdT 

Bill. 
A  motion  to  strike  out  a  bill  is  one  substi- 
tuted for,  and  takes  the  place  of,  a  demurrer  ia 
the   former  practice,   and  is  practically   a  de- 
murrer. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  ii  636-540.] 


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N.JJ 


TIPTON  v^  BAXDAU. 


2.  PLEiiDiife  <Ss>406(3)— Dbmvbbkb. 

The  general  rule  is  that  a  party  will  not  be 
permitted  to  demur  after  he  has  pleaded  to  the 
merits. 

[Ed.  Note.— For  other  cases,  see  Plesding, 
Cent.  Dig.  {  1358.] 

&  ElQuiTT   <8:»181— Dbcbei  Pko   Conibsso— 

Motion  to  Stbikx. 
Under  the  terms  of  an  order  striking  out  an 
answer  the  defendants  were  granted  leave  to  file 
an  amended  answer  within  a  given  time,  not  to 
demur.  Within  the  time  so  limited  the  defend- 
ants gave  notice  of  a  motion  to  strike  out  the 
bill  on  various  grounds;  and,  the  time  for  filing 
the  amended  answer  having  expired,  the  com- 
plainants entered  a  decree  pro  confesso  which 
defendants  now  move  to  strike  out  as  improvi- 
dently  entered,  claiming  that  rule  75  of  this 
court  (100  Atl.  — — )  suspended  the  running  of 
the  time  to  file  an  amended  answer.  Meli, 
that  as  the  motion  to  strike  out  the  bill  was 
made  after  the  defendants  had  submitted  to  an- 
swer, which  answer  was  struck  out  with  leave 
to  file  an  amended  answer,  not  to  demur,  the 
motion  to  strike  oat  in  lieu  of  demurrer  is  in- 
efficadioas,  and  that  the  rule  did  not  suspend 
the  time  for  filing  an  amended  answer,  and 
that,  consequently,  the  decree  pro  confesso  was 
properly  entered  and  the  motion  to  strike  it 
oat,  for  the  reason  relied  on,  must  be  denied. 

[Bid.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  i  417.] 

Bill  by  Arthur  G.  Tipton  and  others  against 
John  Randall  and  others.  Motion  to  strike 
out  decree  pro  confesso  denied  without  preju- 
dice. 

William  A.  Ix)rd,  o£  Orange,  tor  the  mo- 
tloD.    Stirling  D.  Ward,  of  Newark,  opposed. 

WALKMI,  Ch.  The  flies  in  this  case  sbow 
that  the  defendants  answered  the  complain- 
ants' bUl,  and  that  by  an  order  made  on 
March  23,  1917,  the  answer  was  struck  out 
and  defeadants  given  10  days  within  which 
to  file  an  amended  answer.  Before  the  expi- 
ration of  that  time  defendants''  solicitor  serv- 
ed a  notloe  on  complainants'  solicitors  of  a 
motion  to  strike  out  the  bill  of  complaint  on 
various  grounds,  and  claims  that  rule  79  of 
this  court  suspends  the  running  of  the  time 
to  file  an  amended  answer.  It  does  in  terms, 
but  the  question  is  as  to  whether  or  not  the 
rule  applies  at  all  In  this  case,  under  the  given 
Circumstances.  And  that  depends  upon 
whether  the  defendants  had  a  right  to  move 
to  strike  out  the  bill  after  having  submitted 
to  answer.  The  time  for  answering  under 
the  order  of  March  23d  expired  on  April  2d, 
and,  for  want  of  an  amended  answer  being 
filed,  the  complainants'  solicitors  entered  a 
decree  pro  confesso  on  April  4th.  Motion  is 
now  made  to  strike  ont  the  decree  pro  confes- 
so as  Improvidently  entered,  as  a  necessary 
step  precedent  to  arguing  the  motion  to  strike 
■out  the  bUl. 

[1]  A  motion  to  strike  out  a  bill  is  one 
Bubstltuted  for,  and  takes  the  place  of,  a 
demurrer  in  the  former  practice.  It  is  prac- 
tically a  demurrer.  This  has  been  repeatedly 
decided. 


[2]  The  general  nde  is  that  a  party  will 
not  be  permitted  to  demur  after  he  has  plead- 
ed to  the  merits.  31  Cya  275.  And  demur- 
rers come  too  late  after  the  time  limited  for 
filing  them  has  expired.  Id.  p.  274.  Under 
the  terms  of  the  order  to  strike  out  the  an- 
swer, the  defendants  were  given  leave  to  file 
an  amended  answer,  not  to  demur.  In  Eng- 
land a  defendant  demurring  along  to  any  bill 
might  do  so  within  12  days  after  his  appear- 
ance, and  not  afterwards.  Dan.  Ch.  PL  &  Pr. 
(6th  Am.  Ed.)  *5&1.  And  a  demurrer  would 
not  be  received  after  the  12  days  without  a 
special  order  enlarging  the  time,  and  giving 
leave  to  file  it,  and  if  by  Inadvertence  it  was 
received,  it  would,  on  applicatitxi  of  the 
plaintiff,  be  taken  off  the  flies.    Id.  *592. 

[3]  The  question  before  me  I  regard  as  set- 
tled in  this  state  by  the  decision  of  the  Ck>urt 
of  Errors  and  Appeals  in  Hand  v.  Hand,  60 
N.  J.  Eq.  518,  46  Atl.  770,  In  which  it  was 
held  that  a  defendant  who  had  failed  to  file 
his  pleadings  within  time  and  a  decree  pro 
confesso  had  been  entered  against  him  could 
not,  tinder  i>ermisslon  to  answer,  file  a  de- 
murrer to  the  Mil.  The  facts  In  that  case 
and  the  one  at  bar  are  not  the  same,  but  the 
principle  Is.  There  a  decree  pro  confesso  had 
been  entered  before  any  defensive  pleading 
was  filed,  and  the  defendants  applied  for  and 
obtained  an  order  opening  the  decree  to  al- 
low them  to  file  an  answer  In  the  cause. 
Under  this  permission  the  defendants  filed 
an  answer  setting  up  Inter  alia  that  the  bill 
was  multifarious,  and  prayed  the  benefit  of 
such  defense  by  way  of  demurrer,  and  the 
court  held  (80  N.  J.  Eq.  621,  46  AO.  770)  that 
as  the  permission  granted  extended  only  to 
answering  the  bill,  they  were  limited  to  the 
defense  mentioned,  and  could  put  in  no  fur- 
ther or  other  defense  without  leave  of  tiie 
court 

From  the  foregoing  It  follows  that  the  mo- 
tion to  dismiss  the  bill  In  this  case,  made  aft- 
er the  time  for  answering  had  expired  and 
when  an  answer  already  put  in  had  been 
overruled,  with  permission  only  to  file  an 
amended  answer,  came  too  late,  and  the  com- 
plainants had  a  right  to  disregard  It  and  en- 
ter their  decree  pro  confessq  after  the  expi- 
ration of  the  time  limited  for  filing  an  amend- 
ed answer.  The  motion  to  strike  out  the  de- 
cree pro  confesso,  on  the  ground  that  it  was 
improvidently  entered,  must  therefore  be  de- 
nied, with  costa  But  this  will  be  without 
prejudice  to  an  application  to-op«i  the  de- 
cree pro  confesso  for  the  purj>o8e  of  filing  an 
amended  answer,  if  notice  of  such  application 
be  given  within  5  days. 

A  defendant  coming  In  without  unnecessary 
delay  after  a  decree  pro  confesso  regularly 
taken  will,  upon  reasonable  ground,  be  per- 
mitted to  answer  upon  payment  of  costs. 
Dick.  Ch.  Prec.  (Rev.  Bd.)  p.  34^  note  (a). 
See,  also,  Emery  v.  Downing,  18  N.  J.  Eq 
61 ;   Williamson  t.  Sykes,  13  N.  3.  Eq.  182. 


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101  ATLANTIC  REPORTER 


(Me. 


(W  N.  J.  Imw.  tm 

STATE  V.  MONETn.    (No.  66.) 

(Oonit  of  Errors  and  Appeals  of  New  Jeney. 
June  18,  1017.) 

(Svllalnu  iy  tAe  Court.) 
Pebjust  ^=»32(4)  —  Pebson  ADiiiNunzBiNa 
Oath— Paroi,  Evidence. 
Parol  evidence  that  a  certain  person  was 
foreman  of  ttie  grand  jury  and  administered 
the  oath  to  defendant  as  such  foreman  at  a  ses- 
sion of  the  grand  jury  is  competent,  on  the  trial 
of  an  indictment  for  perjury  before  the  grand 
jury,  as  evidence  that  he  was  in  fact  such  fbre- 
man. 

[Ed.  Note.— For  other  cases,  see  Perjury,  Cent. 
IMk.  i  111.] 

Error  to  Supreme  Court 

Mollle  Monettl  was  convicted  of  perjury, 
and,  from  a  Judgment  of  the  Supreme  Court 
affirming  the  conviction,  she  brings  error. 
Judgment  affirmed. 

Anthony  R.  FinelU,  of  Newark,  for  plalntlfr 
In  error.  J.  Henry  Harrison,  of  Newark,  for 
the  State. 

PER  CURIAM.  Plaintiff  in  error  was  con- 
victed of  perjury  in  falsely  swearing  be- 
fore the  grand  jury  of  Essex  county.  At  the 
trial  it  was  objected  that  there  was  no  proof 
of  the  administration  of  the  oath  to  her  by 
any  one  competent  to  administer  it  The 
clerk  of  the  grand  Jury  was  then  caUed,  and 
testified  that  the  oath  was  administered  (giv- 
ing its  language)  by  one  T.  F.  who  was  then 
foreman  of  the  grand  Jury. 

This  was  sufficient  The  question  whether 
perjury  can  be  assigned  upon  an  oath  taken 
before  a  de  facto  officer  need  not  be  consider- 
ed. See  Izer  ▼.  State,  77  Md.  110,  26  Aa 
282.  In  this  state  there  is  a  line  of  cases 
holding  that  parol  evidence  that  one  is  a 
public  officer,  or  that  he  was  acting  aa  such. 
Is  prima  fade  evidence  of  his  tenure  of  the 
office  without  resort  to  bis  written  authority 
so  to  act  Denn  ex  dem.  Lee  v.  Evaul,  1  N. 
J.  Law,  286;  Denn  v.  Pond,  1  N.  J.  Law, 
379;  Stout  V.  H<9plng,  6  N.  J.  Law,  125; 
Gratz  V.  Wilson,  6  N.  J.  Law,  419  (Justice  of 
United  States  Supreme  Court);  Brewster  v. 
Vail,  20  N.  J.  Law,  66,  38  Am.  Dea  647 
(sheriff) ;  Cionover  v.  S<^omon,  20  N.  J.  Law, 
296  (justice  of  the  peace) ;  Beeves  v.  Fergu- 
son, 31  N.  J.  Law,  107  (overseer  of  the  poor) ; 
Vandegrift  ▼.  Meible,  66  N.  J.  Law,  U6,  49 
AU.  16  (official  chemist) ;  State  t.  RelLly,  88 
N.  J.  Law,  108,  05  AU.  1005  UnsUce  of  the 
peace).  We  see  no  reason  for  excepting  a 
foreman  of  the  grand  jury  from  the  operation 
of  this  rula  There  was  no  attempt  to  rebut 
the  evidence,  but  the  court  was  asked  to 
direct  an  acqalttaL  This  was  rightly  de- 
nied. 

The  other  point  argued  in  the  brief  (there 
was  no  oral  argument)  relates  to  a  por- 
tion of  the  charge  not  challenged  by  any  as- 
signment of  error  or  cause  for  reversal  under 


the  statute,  and  therefore  requires  no  con- 
sideration. 

The  judgment  of  the  Supreme  Ourt  affinn- 
tng  the  conviction  is  affirmed. 


cut  He.  tse) 
STAIRS  V.  BANGOR  POWER  CO. 
(Supreme  Judicial  Court  of  Maine.    June  25, 

1917.) 
Entry,  Warr  of  «=>23— Title  ot  PLAiwrnrr— 
Deed  of  Relbabb. 
On  writ  of  entry  seeking  recovery  of  lands, 
that  plaintiff  had  deed  of  release  to  two  strips 
of  land  from  one  of  two  heirs  at  law  of  source 
of  title,  and  the  strips  so  conveyed  were  ex- 
pressly excepted  in  a  deed  made  by  source  of 
title,  sufficiently  shows  title  in  plaintiff  to  such 
strips  to  entitle  him  to  a  judgment  against  the 
defendant  for  the  fractional  portion  of  both 
strips  upon  which  defendant's  dam  encroaches. 

[Ed.  Note.— For  other  cases,  see  Entry,  Writ 
of,  Cent  Dig.  {J  48-^0.] 

Report  from  Supreme  Judicial  Court,  Pen- 
obscot County,  at  Law. 

Writ  of  entty  by  James  H.  Stairs  against 
the  Bangor  Power  C!ompany.  On  report 
from  the  Snpreme  Judicial  Court  Penobscot 
County.    Judgment  for  plaintiff. 

Argued  before  SAVAGE,  O.  J.,  and  COR- 
NISH, KING,  BIRD,  HALEY,  and  PHIL- 
BROOK,  JJ, 

Morse  &  Cook,  of  Bangor,  for  plaintiff. 
Ryder  &  SlmpscHi,  of  Bangor,  and  Charles 
J.  Dunn,  of  Orono,  for  defendant 

BIRD,  J.  The  plaintiff  by  this  writ  of 
entry  seeks  the  recovery  of  land  described  as 
follows:  Commencing  at  the  thread  of  the 
northerly  branch  of  Pushaw  stream,  so  called, 
at  a  point  where  the  thread  of  said  stream 
intersects  the  thread  of  the  Stillwater  branch 
of  the  Penobscot  river;  thence  northwest- 
erly up  the  thread  of  said  Pushaw  stream 
about  20  rods  to  a  point  where  the  south^'ly 
line  of  land  formerly  owned  by  Frank  Lan- 
caster Intersects  the  thread  of  said  stream: 
thence  westerly  on  the  southerly  line  of 
said  Frank  Lancaster's  land  to  the  Bennoch 
road,  so  called ;  thence  southerly  along  said 
Bennodi  road  to  Oilman  Falls  avenue; 
thence  easterly  along  said  Oilman  Falls 
avenue  to  the  thread  of  the  Stillwater  brandi 
of  the  Penobscot  river;  thence  northeasteriy 
along  the  thread  of  said  Stillwater  branch  of 
the  Penobscot  river  to  the  point  of  beginning. 

The  defendant  pleaded  the  general  issue 
and,  by  way  of  brief  statement: 

"That  it  claims  and  was  in  possession  of  only 
a  part  of  the  premises  described  in  plaintiff's 
writ  when  said  action  was  commenced,  vis.  a 
strip  of  land  one  rod  in  width  on  the  west  side 
of  Pushaw  stream  and  the  Stillwater  branch  of 
the  Penobscot  river  extending  along  the  south- 
erly line  of  land  formerly  owned  by  Frank  Ian- 
caster  as  alleged  in  plaintifTs  writ  to  Gilmaa 
Falls  avenue,  so  called.  Said  defendant  further 
says  that  it  was  not  on  the  day  of  the  date 
of  plaintiff's  writ  and  never  since  has  been,  and 
is  not  now,  tenant  of  the  freehold  in,  or  in  pos- 
session of  so  much  of  the  premises  deseribea  in 


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STAIRS  T.  BANGOR  POWER  CX>. 


207 


plaintiff's  writ  aa  liea  Ureal  ot  a  strip  of  land  one 
rod  in  width  on  the  west  side  of  Pusbaw  stream 
and  Stillwater  branch  of  the  Penobscot  river 
extending  from  the  southerly  line  of  land  for- 
merly owned  by  Frank  Lancaster  as  alleged  in 
plaintiffs  writ  to  Gilman  Falls  avenue,  so 
caUed." 

The  case  Is  reported  to  the  Law  Court  up- 
on so  mocta  of  the  evidence  as  is  legally  ad- 
missible; "that  conrt  to  determine  all  the 
rights  of  the  parties  and  order  final  Judg- 
ment" 

The  following  sketch  Illustrates  the  loca- 
tion: 


It  is  admitted: 

"That  on  the  1st  day  of  .Jannary.  1846,  Daniel 
White,  deceased,  was  tiie  owner  in  fee  simple 
of  66  andivided  lOOths  part  of  the  land  describ- 
ed in  the  plaintiSTs  writ,  and  John  Bennoch,  de- 
ceased, was  the  owner  in  fee  simple  of  35  un- 
divided lOOtha  part  at  said  land.  The  above 
admission  is  not  to  preclude  either  party  from 
introducinK  deeds  for  the  purpose  of  construc- 
tion only. 

TTie  primriples  of  law  involved  are,  if  not 
elementary,  -amply  established  by  authority. 
The  questions  to  be  determined  are  ques- 
tions of  fact  Tbey  are  stated  by  defendant 
to  be: 

"(1)  What  is  the  main  branch  of  Pusbaw 
stream  ?  (2)  The  plaintiff  has  shown  title  to  the 
land  described  in  his  declaration  in  two  ways ; 
by  title  deeds,  and  again  by  adverse  posaesaion." 

To  discuss  ezteosivelx  the  evldetice  upon 
«ltber  of  these  two  points  would  be  profitless. 


The  court  concludes,  upon  the  evidence  af- 
forded by  the  plan  of  1805,  the  construction  of 
the  deeds  offered  and  admitted  and  the  oral 
evidence  Including  that  of  the  engineers  that 
the  main  Pushaw  stream  extended  to  the 
south  end  of  the  Island,  which  lies  south  of 
Irving  Point,  and  that  the  mouth  of  Pushaw 
river  referred  to  In  the  deeds  is  the  mouth 
between  the  south  end  of  the  Island  and  a 
point  on  the  west  bank  of  the  river  north- 
easterly of  Pushaw  road,  or  Gilman  Fall^ 
avenue,  as  otherwise  called,  and  not  the 
mouth  north  of  the  island,  aa  claimed  by 
plalnticr,  which  the  court  concludes  was  arti- 
ficially formed. 

The  plaintiff  claims  title  by  sundry  mesne 
conveyances  from  Daniel  White  and  John 
Bennoch  through  Alexander  Gray  and  his 
grantee,  Richard  Lancaster.  We  do  not  find 
the  plaintiff's  contention  supported  by  the 
deeds.  He  also  claims  title  by  adverse  pos- 
session, but  the  acts  relied  upon  to  show 
open,  notorious,  exclusive,  and  uninterrupted- 
ly continuous  possession  for  the  requisite 
period  are  not  in  the  opinion  of  the  court, 
siifflclent  to  give  title  by  adverse  possession. 
Roberts  v.  Richards,  84  Me.  1,  24  Atl.  425. 
Plaintiff  shows  no  title  to  the  island  or  the 
strips  of  land  along  the  Stillwater  river  or 
Pushaw  stream,  either  by  deeds  above  con- 
sidered or  by  adverse  possession.  Derby  v, 
Jones,  27  Me.  357,  362. 

The  plaintiff,  however,  offers  the  deed  of 
release  of  William  H.  White,  one  of  the  two 
heirs  at  law  of  Daniel  White,  deceased,  "of 
a  strip  of  land  one  rod  in  width  upon  Still- 
water stream  and  a  strip  of  land  one  rod  In 
width  on  Pushaw  stream  from  the  mouth  of 
the  same,"  to  a  point  several  rods  norther- 
ly of  the  Island.  The  strips  so  conveyed  were 
expressly  excepted  In  the  deed  of  Daniel 
White  and  John  Bennoch  to  Alexander  Gray. 
The  plaintiff  therefore  shows  title  to  .32% 
In  common  and  undivided  of  the  strips,  one 
rod  in  width,  on  both  Pushaw  stream  and 
Stillwater  river,  but  no  tlOe  to  the  "island." 
The  defendant's  dam  encroaches'  upon  both 
these  strips,  and  plaintiff  is  entitled  to  Judg- 
Inent  against  It  for  such  fractional  proportion 
of  both  strips. 

Judgment  for  plaintiff  for  .321^  In  common 
and  undivided  of  a  strip  of  land  one  rod 
in  width  upon  the  westerly  side  of  Pushaw 
stream  from  the  south  line  of  land  of  Flrank 
Lancaster  to  a  point  on  the  westerly  side 
of  Pushaw  stream,  southwest  of  the  south 
point  of  the  "island,"  and  .32^,^  in  common 
and  undivided  of  a  strip  of  land  one  rod  In 
width  on  the  westerly  side  of  Stillwater  river 
from  the  northerly  point  of  the  "Island"  to 
Gilman  Falls  avenue. 

So  ordered. 


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101  ATLANTIC  RBPORTBB 


CM& 


(US  Ha.  MO) 

KTATB  T.  DAVIS. 

(Supreme  Jadidal  Conrt  ot  Maine.     Jnne  29, 

1917.) 

1.  Crtminai.  Law  <&=3l091(7)  —  Appeal  — 
Bill  of  Exceptions — Sufficiency. 

Where  a  bill  of  exceptions  in  a  criminal  ap- 
peal iras  silent  as  to  Uie  allegation  that  the  ju- 
ry were  allowed  to  separate,  such  ground  of  ex- 
ception will  not  be  considered,  although  the 
transcript  of  the  evidence  which  is  made  a  part 
of  the  bill  shows  the  irregularity. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §§  2815,  2831.] 

2.  CBmiNAL  Law  ©=5901— Appeal— Waiver 
OP  ExcEPTiow— Motion  fob  New  Trial. 

A  motion  for  new  trial  in  a  criminal  prose- 
cution waives  exceptions  to  refusal  to  direct  a 
verdict  of  not  guilty. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  f  2124.] 

3.  Criminal  Law  iS=»068(8)— Motion  in  Ar- 
rest OF  Judouent — Verdict  Against  Law 
AND  Evidence. 

A  motion  in  arrest  of  judgment  in  a  criminal 
prosecution  cannot  be  maintained  upon  the 
ground  that  the  verdict  is  against  law  and  evi- 
doice,  and,  like  a  demurrer,  such  motion  ad- 
dresses Itself  to  the  record  alone,  which  docs 
not  include  the  evidence. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  {  2437.] 

4.  CRnnNAL  Law  «=>753(2)— Dibeotiho  Vkb- 
DicT  OF  Not  Guilty. 

Where  the  evidence  in  a  criminal  prosecution 
ia  so  defective  or  weak  that  a  verdict  of  ^ilty 
based  upon  it  cannot  be  sustained,  a  verdict  of 
not  guilty  should  be  directed,  and  a  refusal  to 
do  so  constitutes  a  valid  ground  of  exception. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  iS  1727, 1729.] 

Exceptions  from  Superior  Court,  Cumber- 
land County. 

W.  Ci  Davis  was  convicted  of  crime,  and 
brings  exceptions.    Exceptions  sustained. 

Argued  before  CORNISH,  KING,  BIRD, 
HALEY,  HANSON,  PHILBBOOK,  and  MAD- 
IGAN,  JJ. 

Jacob  H.  Herman,  Co.  Atl7.>  of  Portland, 
for  the  State.  Henry  C.  Sullivan,  of  Port- 
land, for  respondent. 

BIRD,  J.  The  Indictment  In  tbl«  case 
charges  the  defendant  with  violation  of  R. 

5.  1903,  a  119,  I  16,  punishable  by  imprison- 
ment for  any  term  of  years.  At  the  close  of 
the  evidence  at  the  trial  a  motion  was  made 
for  the  direction  of  a  verdict  for  defendant, 
which  was  refused.  After  verdict  of  guilty, 
the  defendant  moved  in  arrest  of  Judgment, 
because: 

(1)  "The  indictment  does  not  allege  or  set 
forth  any  substantive  crime;"  (2)  "because  the 
indictment  does  not  set  forth  or  allege  any  facts 
suflSdent  to  constitute  the  substantive  crime," 
etc.;  (3)  "because  the  verdict  is  against  the  law 
and  the  evidence." 

Tbia  motion  was  also  overruled. 

The  bill  of  exceptions,  upon  which  alone 
the  case  is  before  this  court,  sets  out  the 
two  motions,  their  refusal  and  the  reserving 
of  exceptions  thereto.    It  concludes: 

"The  report  of  the  evidence  given  at  said  trial, 
which  is  filed  herewith,  is  hereby  expressly  re- 


fo-red  to  and  made  part  of  this  Un  ot  viceft' 
tions. 

"To  all  which  rulings  and  instructions  and 
refusals  to  instruct  the  said  respondent  excepts, 
and  prays  that  his  exceptions  may  be  allowed. 

[1]  The  defendant  urges  that  during  the 
trial  the  jury  were  allowed  to  separate  (but 
to  this  order  of  the  court  no  objection  ap- 
pears to  hare  been  made  nor  exception  noted), 
and  that  his  exceptions  should  be  allowed 
upon  this  ground.  This  alleged  irregularity 
In  the  course  of  the  trial,  assuming  it  can 
be  reached  by  exceptions,  cannot  be  consid- 
ered. The  bill  of  exceptions  is  entirely  silent 
as  to  any  such  ground.  Such  a  bill  of  ex 
ceptlons  la  insufficient,  even  when  the  tran- 
script of  the  evidence  Is  made  part  of  the 
bill  and  the  transcript  shows  the  Irregularity. 
McKown  V.  Powers,  86  Me.  291,  29  Atl.  1079 ; 
Richardson  v.  Wood,  113  Me.  328,  330,  93  Atl. 
836;  Borders  y.  B.  ft  M.  R.  R.,  115  Me.  207, 
98  Ati.  662. 

[2,  3]  The  defendant  at  the  close  of  the  evi- 
dence asked  a  directed  verdict,  as  already 
seen.  The  request  was  refused,  and  defend- 
ant reserved  exceptions.  After  verdict,  he 
moved  in  arrest  of  judgment  for  alleged  de- 
fects in  the  indictment  and  because  the  ver- 
dict was  against  the  law  and  the  evidence. 
The  exceptions  to  the  denial  of  the  motion 
in  arrest  by  reason  of  defects  in  the  Indict- 
ment Is  not  argued.  If  the  last  or  third  rea- 
son alleged  can  be  ground  for  a  motion  In 
arrest,  it  precludes  the  consideration  of  the 
exceptions  to  the  refusal  to  direct  a  verdict, 
as  it  is  in  effect  a  motion  for  new  triaL  The 
motion  waives  the  exceptions.  State  t.  Simp- 
son, 113  Me.  27,  92  Atl.  896.  But  a  motion 
for  arrest  of  judgment  cannot  be  maintained 
upon  the  ground  that  the  verdict  is  against 
law  and  evidence.  Like  a  demurrer,  a  mo- 
tion in  arrest  addresses  itself  to  the  record 
alone,  and  evidence  is  no  part  of  the  record. 
We  conclude,  therefore,  that  the  motion  In 
arrest  In  this  case  is  not  for  these  reasons 
to  be  treated  as  a  motion  for  new  trial,  and 
thus  bring  the  case  within  the  rule  of  State  y. 
Simpson,  supra. 

[4]  Upon  a  careful  reading  of  the  evidence, 
the  unpleasant  details  of  which  It  is  undesir- 
able and  unnecessary  to  rehearse,  it  is  the 
opinion  of  the  court  that  the  exceptions  to- 
the  refusal  to  order  a  verdict,  as  moved  by 
defendant,  be  sustained.  'Bsm  evldoioe  ia 
not  such  as  warranted  a  verdict  of  guilty. 
When  the  evidence  in  support  of  a  criminal 
prosecution  is  so  defective  or  so  weak  that  a 
verdict  of  guilty  based  upon  it  cannot  be 
sustained,  the  Jury  should  be  instructed  t» 
return  a  verdict  of  not  goilty.  A  refusal 
to  so  Instruct  is  a  valid  ground  of  exception. 
State  y.  Cady,  82  Me.  426,  428,  19  AU.  908;. 
State  y.  Simpson,  113  Me.  27,  28,  02  AtL  898: 
Mlckle  y.  United  States,  157  Fed.  229,  84  C. 
C.  A.  672.  See,  also,  Whar.  Cr.  PL  &  Pr.  (8th- 
Ed.)  !  812. 

The  exceptions  are  sustained. 


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DIONNE  ▼.  AMERICAN  EXPRESS  CO. 


20O 


(»1  Vt.  521) 

DIONNE  T.  AMERICAN  EXPBESS  00. 

(Supreme  Court  of  Vermont.    Caledtmia.    July 
2,  1917.) 

1.  Cabbiebs  *=>177(3)— Loss  of  Goods— Lia- 

BILTTT— INTKBSTATB   SHIFIGBNI^-RECEIFT    OB 

Bill  or  Lading. 

A  carrier  accepting  eoods  for  interstate  ship- 
ment is  liable  for  their  loss,  though  in  violation 
of  Hepburn  Act  June  29  1906,  c.  3591,  34 
Stat.  584,  no  receipt  or  bill  of  lading  was  is- 
sued, and  though  Interstate  Commerce  Act  Feb. 
4,  1887,  c.  104,  24  Stat.  379  (U.  S.  Comp. 
St.  1916,  t  8574),  of  which  the  Hepburn  Act  is 
amendatory,  by  section  10,  imposes  penalty  on 
the  carrier  for  noncompliance  with  its  require- 
ments. 

lEd.    Note.— For    other   cases,    see    Carriers, 
Cent.  Dig.  t§  779-789.] 

2.  Casbuebs  9=3134  —  Acceptance  or  Goods 
roR  Shipment — Question  fob  Jubt. 

Relative  to  carrier's  liability  for  loss  of 
goods  at  station  before  shipment,  evidence  held 
sufBcient  to  go  to  jury  as  to  delivery  and  accept- 
ance thereof  for  shipment  as  soon  aa  practicable 
in  the  usual  course  of  busineBs,  rather  than  to 
await  future  orders. 

[Ed.    Note.— For    other    cases,    see    Carriers, 
Cent.  Dig.  §§  588-592,  607.] 

3.  Cabbiebs  ^xs>ltS  —  Acceptance  of  Goods 
FOB  Shipment— Liability  fob  Loss. 

A  carrier  having  accepted  goods  for  shipment 
as  soon  as  practicable  in  the  usual  course  of 
business,  and  not  to  await  further  orders,  and 
having  placed  them  in  the  station  for  its  own 
convenience,  its  liability  as  carrier  for  their  loss 
commenced  at  once. 

[Ed.    Note.— For   other  cases,   see   Carriers, 
Cent  Dig.  i§  100,  101,  608-620.] 

4.  Witnesses  9=3287(3)— Redibeot  Examina- 
tion—Reason fob  Act  Shown  on  Cbobs- 
Examjnatxon. 

Defendant  having  on  cross-examination  of 
plaintiff  shown  plaintiffs  omission  to  do  an  im- 
material thing,  ask  for  receipt  for  goods  deliv- 
ered for  shipment,  permitting  plaintiff  on  re- 
clirect  to  give  the  reason  therefor  was  not  error. 
[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  §  1001.] 

6.  Witnesses  «=3372(1)  —  Showing  Intkbest 
and  Feeling — Discbetion  of  Coubt. 
Permitting  plaintiff,  for  the  purpose  of  show- 
ing the  interest  and  feeling  of  defendant's  wit- 
ueBa  E.,  to  pursue  a  line  of  cross-ezamination  of 
E.  tending  to  show  he  went  to  the  station  to 
meet  the  train  on  which  plaintiff's  witnesses 
came,  and  said  to  R.,  one  of  them,  that  ha 
thought  perhaps  he  would  not  know  where  to  go, 
and  that  he  would  come  down  and  tell  him,  and 
^at  he  took  him  to  the  office  of  defendant's 
counsel,  and  in  this  connection  to  show  by  R. 
that  when  E.  met  him  he  spoke  of  wanting  to 
find  plaintiff's  counsel,  and  E.  took  him  to  the 
office  of  defendant's  counsel,  was  within  the  dis- 
cretion of  the  trial  court. 

[EJd.   Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  S!  1102,  1197,  1199.] 

6.  Evidence  «=9H1— Acceptance  or  Goods 
FOB  Shipment — Custom  of  Agent. 
On  the  issue  whether  or  not  defendant's 
agent  accepted  goods  for  transportation,  though 
be  did  not  issue  a  receipt,  exclusion  of  evi- 
dence under  defendant's  offer  to  show  by  him 
that  he  never  accepted  matter  for  transporta- 
tion without  issuing  a  receipt  was  proper. 

[Ed.    Note.— For   other   cases,   see   Evidence, 
Cent  Dig.  S{  247-253.] 


7.  Cabbiebs  ®=341  —  Acceptance  of  Goods 
fob  Shipment — Instbucttons  to  Agent. 

There  can  be  an  acceptance  by  a  carrier's 
agent  of  goods  for  shipment  binding  on  it,  as  re- 
gards liability  for  their  loss,  though  no  receipt 
is  issued  therefor,  notwithstanding  book  of  in- 
structions issued  by  carrier  to  employes  requir- 
ing a  receipt  to  be  given  for  goods  when  re- 
ceived. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent  Dig.  {{  102-106.] 

8.  WiTNESSia  «=>414(1)  —  Cobbobobation  — 
Rules  or  Emfloteb. 

Book  of  instructions  issued  by  carrier  to 
employes  not  only  requiring  a  receipt  to  be  given 
for  goods  received  for  shipment,  but  forbidding 
acceptance  of  goods  to  be  held  for  further  in- 
structions, have  no  tendency  to  increase  proba- 
bility of  truth  of  testimony  of  carrier's  agent 
that  goods  which  were  received,  and  for  which 
no  receipt  was  given,  were  received  to  await 
further  instructions,  and  not  for  immediate  ship- 
ment, as  claimed  by  shipper,  and  so  are  inadmis- 
sible. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  |  1287.] 

9.  Cabbiebs  ®=3l37  —  Loss  of  Goods  —  In- 
stbucttons. 

Instructing  in  action  for  loss  of  goods  burn- 
ed, in  which  the  issue  was  whether  defendant  ac- 
cepted them  for  immediate  shipment  or  received 
them  to  await  further  orders,  and  in  which  there 
was  no  evidence  or  suggestion  that  the  fire  was 
due  to  defendant's  want  of  care,  after  stating 
that  its  liability  as  carrier  was  that  of  an  in- 
surer, that  if  they  were  held  that  something  fur- 
ther might  be  done,  defendant's  liability  would 
be  that  of  a  warehouseman,  which  is  not  liable 
for  anything  more  than  the  exercise  of  ordinary 
care,  without  stating  further  that  a  warehouse- 
man is  not  liable  for  loss  by  a  fire  occurring 
without  its  fault  did  not  harm  defendant 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent  Dig.  Si  694,  696.] 

Exceptions  from  Caledonia  County  Court; 
Zed  S.  Stanton,  Judge. 

Action  on  the  case  by  Theresa  M.  Dlonne 
against  the  American  Express  Company,  with 
plea  of  general  Issue.  Verdict  for  plalntUf, 
and  defendant  brings  exceptions.     Affirmed. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASEI/TON,  POWERS,  and  TAY- 
LOR, JJ. 

Porter,  Witters  &  Harvey,  of  St  Johnsbury, 
for  plaintiff.  iSimonds,  Searles  &  Graves, 
of  St  Johnsbury,  for  defendant 

MUNSON,  C.  J.  The  plaintiff  seeks  to 
recover  the  value  of  a  box  of  merchandise 
which  was  destroyed  by  the  Are  which  burn- 
ed the  raUroad  station  at  Sheldon  Junction 
in  the  night  of  the  7th  of  September,  1914. 
The  box  was  left  on  the  station  platform  in 
the  afternoon  of  that  day,  for  shipment  to 
Plattsburg,  N.  Y.,  shortly  before  the  arrival 
of  the  3:18  train  for  St  Albans.  Another 
train  carrying  express  left  for  St  Albans  at 
825  p.  m.  The  evidence  was  conflicting  as 
to  what  passed  between  the  plaintiff  and  de- 
fendant's agent  regarding  the  shipment.  No 
receipt  or  bill  of  lading  or  other  memorandum 
of  contract  was  Issued  by  the  agent  The  de- 
fendant moved  unsuccessfully  for  the  direc- 


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101  ATIANTIO  REPOETBE 


(Vt 


tlon  of  a  verdict  on  several  grounds,  of 
which  the  only  one  argued  is  the  want  of  a 
rec-elpt  or  bill  of  lading. 

|1]  The  Hepburn  Act,  so  called,  enacted 
June  29.  1906,  In  amendment  of  the  Inter- 
state (Jonimerce  Act  of  February  4, 1887,  pro- 
^!des: 

"That  any  common  carrier,  railroad,  or  trans- 
portation compauy  receiving  property  for  trans- 
portation from  a  point  in  one  state  to  a  iK>iut  in 
another  state  shall  issue  a  receipt  or  bill  of  lad- 
ing tliercfor  and  shall  be  liable  to  the  lawful 
holder  thereof  for  any  loss,  damage,  or  injury  to 
such  property  caused  by  it.    •    ♦    *  " 

Section  10  of  the  act  of  1887  provides  for 
the  punishment  by  fine  of  any  common  car- 
rier, and  in  the  case  of  a  corporation,  of  any 
officer,  agent  or  person  acting  for  such  cor- 
poration, who  shall  willfully  do  or  permit 
Anything  in  this  act  prohibited  or  declared 
to  be  unlawful,  or  "shall  willfully  omit  or 
fall  to  do  any  act,  matter,  or  thing  in  this 
act  required  to  be  done.  *  •  *  "  The  de- 
fendant claims  that  these  provisions  require 
that  any  acceptance  of  goods  for  transporta- 
tion without  the  issuance  of  a  receipt  or  bill 
of  lading  be  treated  as  the  act  of  the  carrier's 
servant,  and  not  as  the  act  of  the  carrier, 
and  cites  in  support  of  this  view  the  state- 
ment In  section  11  of  Story  on  Agency  that: 

"Although  a  person  may  do  an  unlawful  act,  it 
is  clear  that  he  cannot  delegate  authority  to  an- 
other person  to  do  it." 

The  enactment  which  includes  this  provi- 
sion Is  a  regulation  of  the  interstate  business 
of  common  carriers,  and  penalties  are  imposed 
on  the  carrier  to  secure  its  compliance  with 
the  law.  The  general  purpose  of  the  statute 
is  the  protection  of  the  public.  No  duty  Is 
Imposed  on  the  sbipi>cr  in  connection  with 
the  shipment  of  bis  goods.  The  acceptance 
of  the  goods  for  transportation  without  issu- 
ing a  receipt  or  bill  of  lading  therefor  is 
Illegal  only  as  to  one  of  the  'parties.  The 
transportation  of  goods  upon  tendering  to 
the  carrier  Its  proper  charges  is,  as  regards 
Its  own  line,  a  service  which  the  shipper  Is 
entitled  to  as  of  right,  and  not  a  matter 
depending  upon  negotiation  and  agreement. 
In  assuming  the  extended  liability  for  ship- 
ments over  connecting  lines  under  the  pro- 
visions of  this  stntute,  the  nature  of  the 
carrier's  relation  to  the  public  remains  the 
same.  The  rules  which  determine  the  legali- 
ty of  ordinary  contract  undertakings  are  not 
applicable. 

The  effect  of  this  statute  was  considered  In 
Morrison  Grain  Co.  v.  Mo.  Pac.  R.  R.  Co., 
182  Mo.  App.  339,  170  S.  W.  404,  and  there 
it  was  said: 

"If  the  carrier  chose  to  accept  and  begin  the 
transportation  of  goods  without  issuing  a  bill  of 
ladini!.  it  would  be  violating  the  act  referred  to, 
but  the  relation  of  shipper  and  carrier  would  ex- 
ist none  the  less." 

In  International  Watch  Co.  v.  Delaware, 
etc.,  R.  Co.,  80  N.  J.  Law,  553,  78  Ati.  49,  It 
-was  chiluuHl  that  this  provision  did  not  Im- 
,pose  a  liability  upon  the  initial  carrier  unless 


such  carrier  should  issue  a  receipt  or  bUl 
of  lading  for  the  property  received,  and  tht> 
court  characterized  the  claim  in  this  lan- 
guage: 

"This  contention  in  substance  is  that,  although 
the  defendant  upon  receipt  of  these  goods  for 
shipment  failed  in  its  duty  to  issue  a  receipt  or 
bill  of  lading  therefor,  it,  by  reason  of  soch 
failure,  escaped  the  liability  which  wonld  have 
rested  upon  it  had  it  performed  its  statutory 
duty." 

We  think  it  cannot  be  said  that  there  can 
be  no  acceptance  for  shipment  by  the  agent 
binding  upon  the  company  unless  a  receipt  or 
bill  of  lading  Is  given.  So  It  will  be  neces- 
sary to  examine  the  evidence  bearing  upon 
this  point 

A  truckman  testlfled  that  he  took  a  box 
for  the  plaintiff  from  the  fair  ground  to  the 
station,  and  left  it  on  the  station  platform. 
The  plaintiff  testlfled  that  the  box  contain- 
ing the  goods  sued  for  was  about  ten  feet 
long  and  eight  feet  wide;  that  she  put  tags 
on  an  end  and  side  containing  the  direction 
"Plattsburg,  N.  Y.,  sent  by  American  Ex- 
press" ;  that  the  lx>x  vma  on  a  truck  at  the 
station  when  she  got  there  sbftrtly  before  3 
o'clock ;  that  the  express  agent  was  stand- 
ing near  it,  and  she  spoke  to  him  about  it, 
and  he  said  he  would  attend  to  it;  that  be 
told  her  he  did  not  have  time  to  get  it  off  on 
that  train,  and  she  asked  hiro  If  he  would 
change  the  address  if  she  should  phone  blm 
to  do  it  when  she  got  to  St  Albans,  and  he 
said  he  would ;  that  she  did  not  so  phone ; 
that  the  agent  did  not  ask  her  to  pay  charges, 
and  she  did  not  ask  for  a  receipt.  The  ex- 
press agent  testified  that  the  plaintiff  came 
to  the  station  that  afternoon  and  told  him 
she  would  have  a  shipment  going  either  to 
Flattsburg  or  St  Johnsbury,  and  that  she 
would  give  him  Instructions  the  following 
day,  by  telephone  or  letter,  whleh  place  she 
would  ship  to,  and  said  nothing  else;  that 
he  told  her  he  could  not  do  anything  for  her 
at  that  time;  that  be  did  not  see  her  box, 
and  she  did  not  tell  him  where  it  was ;  that 
she  did  not  ask  whether  the  box  could  go  on 
that  train;  that  he  did  not  weigh  the  box. 
nor  make  out  a  waybill  for  it  and  did  not 
accept  any  box  for  dilpment ;  that  after  the 
Are  you  could  see  from  some  of  the  stuff 
where  the  box  had  been;  that  he  and  bis 
helpers  took  Into  the  station  the  boxes  that 
were  burned  there. 

[2, 3]  This  evidence  tended  to  show  the 
delivery  and  acceptance  of  the  plaintlfTs 
goods,  to  be  shipped  as  soon  as  practicable  in 
the  usual  course  of  business.  For  anything 
that  appears  they  might  have  been  shlpx>ecl 
by  the  evening  train.  Instead  of  being  left  In 
the  station  where  they  were  destroyed.  If 
placed  in  the  station  solely  for  the  defend- 
ant's convenience,  and  not  to  await  further 
orders,  as  the  plaintiff's  testimony  tended  to 
show,  the  defendant's  liability  as  a  carrier 
connnonced  nt  once,  and  the  loss  falls  on 
the  defendant. 


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DIONNE  y.  AMERICAN  EXPRESS  CO. 


211 


So  tbere  was  a  case  for  tbe  Jury,  and  the 
motion  for  a  verdict  was  properly  overruled. 

[4]  Defendant's  counsel  drew  from  the 
plaintiff  on  cross-exanal  nation  tbe  fact  tbat 
she  did  not  ask  for  a  receipt.  Her  counsel 
was  permitted  to  ask  her  In  redirect  exami- 
nation why  sbe  did  not,  and  she  said  it  was 
because  he  was  busy  and  she  knew  that  he 
could  not  weigh  the  box  and  give  the  receipt. 
This  was  not  error.  Moreover,  the  answer 
was  harmless ;  for  both  tbe  fact  and  the  ex- 
planation  were  immaterial. 

[8]  During  tbe  cross-examination  of  the  ex- 
press agent,  and  for  tbe  purpose  of  showing 
the  interest  and  feeling  of  the  witness,  plain- 
tiff's counsel  was  permitted  to  pursue  a  line 
of  Inquiry  which  tended  to  show  that  the  wit- 
ness went  to  the  station  to  meet  the  train  on 
which  the  plaintiff's  witnesses  came  In,  and 
said  to  Rice,  tbe  truckman,  that  he  thought 
perhaps  he  would  not  know  where  to  go,  and 
that  he  would  come  down  and  tell  him,  and 
thereupon  took  him  to  the  office  of  defend- 
ant's counsel.  In  connection  with  this,  plain- 
tiff's counsel  was  permitted  to  show  by  Rice 
that  when  tbe  express  agent  met  him  witness 
spoke  of  wanting  to  find  plaintiff's  counsel, 
and  that  the  agent  took  him  to  the  office  of 
defendant's  counsel.  This  was  a  matter  en- 
tirely within  the  discretion  of  tbe  trial  court. 

[•]  Tbe  defendant  offered  to  show  by  the 
agent  "that  be  never  accepted  express  mat- 
ter for  transportation  without  issuing  a  re- 
ceipt for  the  same  to  the  shipper  or  the  agent 
of  the  shipper,"  and  the  evidence  was  ex- 
cluded. The  .fudges  are  agreed  in  saying  that 
the  exclusion  was  proper  on  the  case  present- 
ed. It  Is  considered  by  a  majority  that  this 
was  no  more  than  an  offer  to  show  the 
station  agent's  custom  or  business  habit,  and 
that  under  our  cases  this  was  inadmissible. 
Scott  V.  Bailey,  73  Vt.  49,  50  Atl.  557;  Aiken 
V.  Kennlson,  58  Vt.  665,  6  AtL  757;  Clark 
V.  Smith,  72  Vt.  138,  47  Atl.  391;  State  v. 
Wilklns,  66  Vt.  1,  28  Atl.  323.  See,  further, 
Lucia  v.  Meedi,  68  Vt.  175,  179.  34  Atl.  695 ; 
Ware  v.  Chllds,  82  Vt  359,  73  Atl.  994 ;  Russ 
V.  Good,  90  Vt.  236.  97  Atl.  987. 

[7,1]  Tbe  defendant  offered  certain  in- 
stmctions  contained  in  a  book  of  rules  and 
instructions  issued  by  the  defendant  for  tbe 
guidance  and  use  of  its  employes  only,  which 
instructions  forbade  the  acceptance  of  any 
shipment  offered  for  transportation  with  a 
request  that  It  be  held  for  further  Instruct 
tions,  and  required  that  a  receipt  be  given 
for  every  article  at  the  time  it  was  received, 
whether  asked  for  or  not,  and  required  fur- 
ther that  a  shipment  be  refused  if  the  sblp- 
l>er  refused  to  accept  the  receipt,  or  If,  when 
.shipment  was  called  for,  tbere  was  no  one 
present  to  accept  a  receipt  These  Instruc- 
tions were  offered:  First,  to  show  that  the 
agent  could  not  bind  the  company  by  accept- 
ing the  box  without  giving  a  receipt;  and, 
second,  to  corroborate  the  agent's  testimony 
that  he  did  not  accept  the  plaintiff's  box  for 
shipment    Tbe  evidence  was  excluded,  and 


an  exception  allowed  on  each  ground.  The 
first  point  is  sufficiently  covered  by  what  has 
already  been  said.  We  treat  the  second  of 
these  exceptions  as  having  reference  to  all 
the  agent's  testimony  bearing  upon  the  ques- 
tion of  acceptance,  and  not  simply  to  his 
answer  corresponding  to  tbe  terms  of  the 
offer. 

When  there  is  a  question  whether  some  do- 
ty required  by  a  rule  or  regulation  has  been 
done,  the  rule  or  regulation  Is  received  bt 
evidence  as  t«iding  to  Increase  the  probabil- 
ity that  the  thing  required  was  done.  Tbere 
is  no  question  here  as  to  what  tbe  agent  did 
with  the  plaintiff's  box.  He  did  not  send  it 
on  the  8:25  train,  but  put  It  In  the  station. 
So  this  is  not  the  case  of  evidence  offered  in 
corroboration  of  a  claim  tbat  a  certain  spe- 
cific act  was  done.  The  issue  depended  npoa 
the  quality  of  the  act  done,  and  its  qualit7 
was  not  to  be  determined  by  the  agent's  in- 
tention or  understanding,  but  from  a  consid- 
eration of  the  attending  statements  and  cir- 
cumstances. If  the  plaintiff's  testimony  is 
correct  the  box  was  ready  for  shipment  on 
tbe  evening  train.  If  the  agent's  testimony 
is  correct,  it  was  held  to  await  instructions 
to  be  sent  the  following  day.  So  if  the  rules 
were  admissible  here,  they  were  admissible 
as  Increasing  the  probability  that  the  agent's 
version  of  what  passed  between  him  and  the 
plaintiff  was  true.  But  the  rule  did  not  have 
that  tendency,  as  it  forbade  acceptance  for 
the  purpose  testified  to  by  the  agent. 

[9]  Early  In  the  introduction  of  the  de- 
fense counsel  Indicated  their  claim  tbat  tbe 
defendant  could  be  held  liable  only  as  a 
warehouseman,  and  one  ground  of  the  mo- 
tion for  a  verdict  was  that  there  was  no  evi- 
dence that  tbe  goods  were  delivered  to  and 
accepted  by  the  defendant  In  any  other  ca- 
pacity than  as  a  warehouseman.  The  de- 
fendant requested  Instructions  to  the  effect 
tbat,  if  the  goods  were  held  at  the  request 
of  the  plaintiff  in  order  tbat  something  fur- 
ther might  be  done  to  prepare  them  for  trans- 
portation or  to  await  further  orders  before 
shipment  tbe  defendant's  liability  during 
the  detention  was  only  that  of  a  warehouse- 
man, and  that  a  warehouseman  is  not  liable 
for  a  loss  by  fire  which  occurs  vrlthout  bis 
fanlt  or  neglect  There  was  no  evidence  or 
suggestion  during  the  trial  tbat  the  fire  vras 
due  to  any  want  of  care  on  the  part  of  the 
defendant.  The  court  charged.  In  substance, 
that  the  llaUllty  of  tbe  defendant  as  a  com- 
mon carrier  was  tbat  of  an  insurer  of  tbe 
safety  of  the  goods,  but  that,  if  the  goods  were 
held  after  delivery  for  the  accommodation 
of  tbe  plaintiff,  tbat  something  further  might 
be  done,  the  liability  of  the  defendant  during 
such  detention  would  be  that  of  a  warehouse- 
man only,  and  that  a  warehouseman  is  not 
liable  for  anything  more  than  an  exercise  of 
ordinary  care.  The  court  went  no  further; 
and  the  defendant  claims  tbat  the  failure 
to  instruct  the  Jury  that  a  warehouseman 
is  not  liable  for  loss  by  a  fire  which  occurs 


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101  ATLANTIC  RBPOBTBB 


(N.H. 


without  his  fault  was  a  serious  error.  The 
court  might  well  have  presented  the  matter 
more  fully,  but  we  think  the  defendant  has 
not  been  harmed  by  the  Incompleteness  oom- 
plained  of. 
Judgment  affirmed. 


<T8  N.  H.  4SS) 

GAGNE  V.  MASSACHUSETTS  BONDING  A 

INS.  CO. 

(Supreme  Court  of  New  Hampshire.    Cooa. 

June  5,  1917.) 

1.  IlTBTTRANCZ:  ®=>130(5)— ACCEFTAITCR  or  Poi> 

lOT— Presumption  . 
In  the  absence  of  fraud,  one  who  accepts  an 
insurance  policy  is  presumed  to  know  the  terms, 
conditions,  and  limitations  therein  contained. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent  Dig.  a  222-224,  229,  230.] 

2.  Insubance  ^=»3SS(2) — SioK  Benbtitb— Rb- 

COVEBT   CNDEB  POUCT. 

Under  a  policy  following  Laws  1913,  c.  228, 
I  3,  Bubsec.  3,  (C)  3,  and  providing  that,  "if  de- 
fault be  made  in  the  payment  of  the  agreed  pre- 
mium for  this  policy,  the  subsequent  acceptance 
of  a  premium  •  •  •  shall  reinstate  the  poli- 
cy only  to  cover,  •  •  •  such  sickness  as  may 
begin  more  than  10  days  after  the  date  of  such 
acceptance,"  insured  could  not  recover  by  virtue 
of  a  premium  payment  made  October  27th,  for 
an  illness  beginning  October  25th,  without  show- 
ing a  new  contract  creating  such  liability. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  {  933.] 

Exceptions  from  Superior  Court,  Coos 
County;   Chamberlln,  Judge. 

Assumpsit  on  insurance  policy  by  John 
Oa«ne  against  the  Massachusetts  Bonding  & 
Insurance  Company  to  recover  for  sick  bene- 
flt&  Upon  an  agreed  statement  of  facta,  the 
court  pro  forma  found  a  verdict  for  the  plain- 
tiff, and  defendants  except  Exceptions  sus- 
tained, and  Judgment  for  defendants. 

Ovlde  J.  Coulombe,  ot  Berlin,  for  plaintiff. 
Goes  &  James,  of  Berlin  (W.  W.  James,  of 
Berlin,  orally),  for  defendant 

PARSONS,  O.  J.  By  its  terms  the  policy 
expired  on  the  1st  day  of  June,  1915,  but 
was  renewable  from  month  to  month  at  the 
election  of  the  company  by  the  payment  of  a 
monthly  premium  of  $1.65  on  or  before  the 
1st  day  of  eadi  month  expiring  In  all  cases 
upon  the  1st  of  the  month.  If  not  renewed. 
The  plaintiff  paid  the  premium  due  Septem- 
ber Ist,  but  did  not  pay  the  October  premlvun 
until  October  27th,  two  days  after  his  Illness 
began,  October  25th.  He  was  Insured  against 
disability  resulting  from  Illness  which  is 
contracted  and  begins  during  the  life  of  the 
policy.  As  the  policy  was  not  in  force  when 
the  illness  began  for  which  sick  beneflts  are 
claimed,  unless  the  payment  and  acceptance 
October  27th  of  the  monthly  premium  for  Oc- 
tober restored  the  policy  and  gave  It  life 
from  October  Ist,  the  plaintiff  cannot  recov- 
er. The  effect  of  such  payment  and  accept- 
ance depends  upon  the  agreement  or  under- 
standing of  the  parties.     It  is  to  be  given 


the  effect  they  agreed  It  should  have.    The 
policy  provided  that: 

"If  default  be  made  in  the  payment  of  the 
agreed  premium  for  this  policy,  the  subsequent 
acceptance  of  a  premium  •  •  •  shall  rein- 
state the  policy,  but  only  to  cover  accidental  in- 
jury thereafter  sustained  and  such  sickness  as 
may  begin  more  than  ten  days  after  the  date  of 
such  acceptance." 

[1 , 2]  In  this  provLslon  the  policy  follows 
the  statute.  Laws  1913,  c.  226, 1 3,  subsec.  3, 
(C)  3.  In  the  absence  of  fraud,  one  who  ac- 
cepts a  policy  of  Insurance  is  presumed  to 
have  knowledge  of  the  terms,  ctmdltions,  and 
limitations  therein  contained.  Johnson  v. 
Casualty  Co.,  73  N.  H.  259,  60  Atl.  1009,  111 
Am.  St  Rep.  609.  In  a  suit  on  the  contract 
the  plaintiff  must  recover  according  to  Its 
terms.  Anderson  v.  .SItna  Life  Ins.  Co.,  75 
N.  H.  375,  377,  74  Atl.  1051.  (Recovery,  there- 
fore, cannot  be  had  for  an  illness  beginning 
October  25th  by  virtue  of  a  premium  pay- 
ment October  27th  by  the  terms  of  the  writ- 
ten contract  To  recover,  the  plaintiff  must 
show  a  new  contract  creating  such  llabUlty, 
— one  establishing  such  liability  by  express 
terms,  or  by  implication  from  circumstances, 
or  by  estoppel.  The  only  evidence  offered  is 
the  payment  and  acceptance  of  the  July  pre- 
mium on  July  16th,  and  ot  the  August  premi- 
um («  August  13th.  But  there  is  no  evidence 
that  either  of  these  premiums  were  paid  or 
accepted,  except  in  accordance  with  the  terms 
of  the  policy  and  the  statute,  or  that  the 
plaintiff  understood  otherwise.  The  facts 
stated  falling  to  establish  liability,  the  ver- 
dict ordered  is  set  aside. 

Exception  sustained.  Judgment  for  the  de- 
fendants.   All  concurred. 


(78  N.  H.  OS) 
THOMPSON  ft  NESMITH  v.  MANCHES- 
TER TRACTION,  LIGHT  & 
POWER  CO. 

(Supreme  Court  of  New  Hampshire.     Merri- 
mack.    June  5,  19170 

1.  Eminbnt  Domain  «=>17— CoHDmmATiow 
OF  Flowaoe  Rights. 

Public  Service  Commission  Act  (Laws  1911, 
C.  104)  §  13d,  giving  railroads  and  public  utili- 
ties the  right  to  petition  the  Public  Service  Com- 
mission to  take  lands  needed  for  the  construc- 
tion of  a  Une,  branch  line,  extension  or  pipe 
line,  conduit,  line  of  poles,  etc.,  to  meet  the  rea- 
sonable requirements  of  service  to  the  public, 
does  not  give  public  utilities  the  power  to  secure 
flowage  rights  by  eminent  domain,  though  the 
words  "rights  and  easements"  and  "land"  in  the 
statute  makes  it  broad  enough  to  include  flowage 
rights. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  H  6,  90.] 

2.  Eminent  Domain  is=»13— Taking  of  Pbop- 

EBTY  FOR  PRIVATB  USES. 

Private  property  cannot  be  taken  by  eminent 
domain  for  private  uses. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  §§  51-53.] 


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N.H^       THOMPSON  &  XESMITH  ▼.  MANCHESTER  TRACTIOK,  li.  <fe  P.  00. 


213 


3.  Watims   and  Wateb   Cotjbsbs   «=>163  — 
Flowage  Act  —  Supebsession  bt  Pubuo 
Service  Commission  Act. 
The  Public  Service  Commission  Act,  {  13d, 
giving  railroads  and  public  utilities  the  right  to 
petition  the  Public  Service  Commission  to  take 
lands  needed   for   the  construction   of   a   line, 
branch  line,  extension  or  pipe  line,  conduit,  line 
of  poles,  etc  to  meet  the  reasonable  require- 
ments of  service  to  the  public,  not  conferring 
on  public  utilities  the  power  to  acquire  flowage 
rights  by  eminent  domain,  does  not  supersede 
the  Flowage  Act  (Pub.  St  1901,  c.  142). 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Cent.  Dig.  {  208.] 

Transferred  from  Superior  Court,  Merri- 
mack County;   Sawyer,  Judge. 

PetlUon,  under  Pub.  St.  1901,  c  142,  by 
Albert  Thompeon  and  Mary  B.  Nesmitb, 
against  the  Mandiester  Traction,  Llgbt  & 
Power  Company,  to  assess  damages  caused 
by  flowing  lands.  On  transfer  without  rul- 
ing. Petition  of  plaintiffs  ordered  to  stand 
for  trial  In  accordance  with  the  agreement 
of  transfer,  and  case  discharged. 

Petition  imder  chapter  142  of  the  Public 
Statutes  to  assess  the  damages  caused  to  the 
plaintiffs  by  flowing  their  land  by  the  defend- 
ants. The  petition  coming  on  for  hearing, 
the  defendants  represented  that  they  had 
filed  a  petition  with  the  Public  Service  Com- 
mission imder  chapter  164  of  the  Laws  of 
1911  and  amendments  thereto,  to  acquire  as 
against  the  plaintiffs  certain  rights  of  flow- 
age  or  easements  necessary  to  the  mainte- 
nance of  certain  dashboards  to  be  used 
on  their  dam,  and  for  a  necessary  extension 
of  their  plant  and  works.  The  defendants 
filed  a  plea  and  motion,  claiming  that  the 
proceedings  before  the  Public  Service  Com- 
mission, under  chapter  164  of  the  Laws  of 
1911,  and  The  amendments  thereto,  super- 
sede the  proceedings  begun  by  the  plain- 
tiffs under  the  flowage  act,  and  requested 
the  court  so  to  rule,  and  to  continue  the  peti- 
tion under  the  flowage  act  until  the  final 
determination  of  the  petition  of  the  defend- 
ants before  the  Public  Service  Commission. 
The  case  was  transferred  without  ruling, 
upon  the  agreement  that,  if  the  provisions 
of  chapter  164  of  the  Laws  of  1911  supersede 
chapter  142  of  the  Public  Statutes  for  the 
determination  of  the  value  of  the  rights  and 
easements  referred  to  under  the  circumstanc- 
es In  this  case,  the  defendants'  motion  shall 
be  granted;  if  not,  then  this  case  shall 
stand  for  trial  In  its  order. 

Robert  W.  Upton,  of  Concord,  for  plain- 
tiffs. Streeter,  Demond,  Woodworth  &  Sullo- 
way,  of  Concord,  and  Jones,  Warren,  Wil- 
son &  Manning,  of  Mancheater,  for  defend- 
ants. 

PLUMMBR,  J.  The  defendants  contend 
that  they  are  entitled  to  acquire  flowage 
rights  under  section  13d  of  chapter  164 
of  the  Laws  of  1911,  and  that  the  Flowage 
Act  (P.  S.  c.  142)  respecting  public  utilities 


is  thereby  superseded.  This  section  whidi 
was  not  changed  by  amendments  made  in 
1913,  provides  that: 

"Whenever  it  is  necessary,  in  order  to  meet 
the  reasonable  requirements  of  service  to  the 
public  that  any  railroad  corporation  or  public 
utility  subject  to  supervision  under  this  act 
should  construct  a  line,  branch  line,  extension 
or  a  pipe  line,  ccmduit,  line  of  poles,  towers  or 
wires  across  the  land  of  any  other  person  or  cor- 
poration, or  should  acquire  land  for  necessary 
extension  of  any  plant  or  works  operated  by 
such  railroad  corporation  or  public  utility,  and 
such  railroad  corporation  or  public  utility  can- 
not agree  with  the  owner  or  owners  of  such 
land  as  to  the  necessity  or  tlie  price  to  be  paid 
therefor,  such  railroad  corporation  or  public 
utility  may  petition  the  commission  for  such 
rights  and  easements  or  for  permission  to  take 
such  lands  as  may  be  needed  tor  said  purposes." 

The  rights  and  easements  that  public  utili- 
ties are  empowered  to  take  by  eminent  do- 
main under  this  act  are  to  construct  a  line, 
branch  line,  extension  or  a  pipe  line,  conduit, 
line  of  poles,  towers  or  vrires  across  the  land 
of  any  other  person  or  corporation.  And 
the  land  that  this  law  enables  them  to  ac- 
quirer Is  land  for  necessary  physical  exten- 
sion of  any  of  their  plants  or  worlcs;  that 
Is,  the  land  upon  which  they  desire  to  con- 
struct buildings  or  other  works.  The  de- 
fendants contend  that  the  use  of  the  words 
"rights  and  easements"  and  "land"  In  the 
statute  makes  it  broad  enough  to  Include 
flowage  rights.  Undoubtedly  these  terms  are 
sufficient  to  describe  such  rights.  But  these 
words  do  not  refer  to  flowage  rights.  They 
have  reference  to  certain  deflnite  purposes 
enumerated  in  the  statute  as  Above  pointed 
out 

[1]  The  act  does  not  give  public  utilities 
the  power  to  secure  flowage  rights  by  eminent 
domain.  Its  language  does  not  indicate  that 
such  was  the  intention  of  the  Legislature; 
The  rights  that  they  can  obtain  by  eminent 
domain  are  specifically  stated,  and  flowage 
rights  are  not  included.  This  statute,  which 
gives  to  public  utilities  the  special  and 
extraordinary  right  to  condemn  private  prop- 
erty for  their  uses,  being  an  exercise  of 
sovereign  power,  and  in  derogation  of  com- 
mon right,  must  be  strictly  construed,  and 
eliould  not  be  extended  beyond  its  plain  and 
unmistakable  provisions.  Clarem<mt  Oo.  v. 
Putney,  73  N.  H.  431,  82  Atl.  727;  MItdiell 
V.  Electric  Co.,  70  N.  H.  56©,  49  Atl.  94; 
Oooley's  Con.  Llm.  (7th  Ed.)  762;  Harvey 
V.  Aurora  &  Geneva  Ry.  Co.,  174  111.  296, 
304,  51  N.  E.  163 ;  U.  S.  v.  Rauers  (D.  C.) 
70  Fed.  748;  Moorhead  v.  Little  Miami  R. 
R.  Co.,  17  Ohio,  340,  351 ;  Lance's  Appeal,  55 
Pa.  16,  26,  93  Am.  Dec.  722.  "In  the  construc- 
tion of  powers  given  to  a  corporation  to  take 
land  by  eminent  domain,  every  reasonable 
doubt  Is  to  be  resolved  adversely.  The  af- 
firmative must  be  shown  and  silence  is  nega- 
tion." 15  Cyc.  667;  Providence,  etc.,  R.  Co., 
Petitioner,  17  R.  I.  324,  343,  21  Atl.  965. 
In  Claremont  Co.  v.  Putney,  supra,  the  plaln- 


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101  ATIiAKTIC  UBPORXBR 


(N.H. 


tUb  claimed  that  tbey  were  authorized  to 
take  water  ri^ts  by  onlnent  domain  be- 
cause their  charter  gave  them  the  power 
to  "lease,  purchase,  hold,  and  acquire  such 
real  and  personal  estate  as  may  be  necessary 
or  convenient  in  carrying  out  the  purposes 
lor  which  said  corporation  is  organised." 
Laws  1001,  c.  276.  The  court  in  answer  to 
this  claim  said : 

"The  first  contention  of  the  plaintiffs  is  that  it 
is  to  be  implied  from  the  use  of  the  word  'ac- 
quire' in  their  charter  that  the  Legrislatnre  in- 
tended to  confer  upon  them  tfae  power  to  take 
by  eminent  domain  such  property,  real  and  per- 
sonal, as  might  be  necessary  to  the  prosecution 
of  their  business.  But  the  answer  to  this  is 
that  as  the  exercise  of  this  power  is  against 
common  right,  and  the  plaintiffs'  charter  does 
not  expressly  confer  the  power,  or  point  but  the 
steps  to  be  pursued  in  its  exercise,  or  make  pro- 
Tision  for  compensation,  the  presumption  is  that 
the  Legislature  did  not  intend  to  confer  it. 
Private  property  cannot  be  invaded  by  this 
power  without  statutory  authority ;  and  stat- 
utes which  are  claimed  to  authorize  its  exer- 
cise are  to  t>e  strictly  construed." 

The  plaintiffs  further  contended  that  they 
were  empowered  to  exercise  the  rights  of 
eminent  domain  to  obtain  water  privileges 
under  section  4,  chapter  93,  of  the  Laws  of 
1901.  The  language  of  the  section  upon 
which  they  based  this  claim  is: 

"Said  railway  corporations  may  take  and  hold 
•  •  *  such  land  as  may  be  necessary  for 
the  purposes  of  installing  and  maintaining  pow- 
er plants." 

"But  this  provision,"  said  the  court,  "does 
not  authorize  street  railway  corporations  to 
condemn  land  and  water  privileges  for  the 
purpose  of  diverting  streams  and  procuring 
power  with  which  to  operate  power  plants 
erected  or  to  be  erected  on  their  own  land. 
On  the  contrary,  the  authority  there  confer- 
red is  limited  to  taking  such  land  as  may 
be  necessary  for  locating  or  placing  power 
plants  in  position  for  use  and  maintaining 
the  same."  This  case,  it  will  be  perceived,  is 
very  similar  In  principle  to  the  instant  case. 

It  Is  argued  by  the  defendants  that  the 
flowage  act  does  not  meet  the  needs  of  public 
utilities,  only  in  an  Incidental  and  Inade- 
quate way,  and  that  the  act  was  framed 
primarily  for  the  beneSt  of  manufacturing 
enterprises,  which  are  private  callings  and 
serve  the  public  only  in  an  indirect  or  eco- 
nomic sense.  The  ground  upon  which  the 
flowage  act  was  upheld  as  constitutional 
was  that  flowage  rights  taken  under  It  must 
be  employed  by  those  so  acquiring  them  for 
the  public  use  or  benefit 

[2]  It  is  elementary  that  private  property 
cannot  be  taken  by  eminent  domain  for  pri- 
vate uses.  Concord  Railroad  v.  Greely,  17  N. 
H.  47:  Ash  V.  Curamlngs,  50  N.  H.  591,  612; 
Rockingham  Light,  etc.,  Co.  v.  Hobbs,  72  N. 
H.  531,  58  Atl.  46,  66  L.  R.  A.  581;  McMil- 
lan V.  Noyes,  75  N.  H.  258,  72  Atl.  759.  The 
act  provides  that,  if  in  the  opinion  of  the 
court  the  erection  of  a  dam  is  not  of  public 
use  or  benefit,  the  petition  to  obtain  flowage 
rights  shall  be  dismissed.  P.  S.  c.  142,  §  16. 
And  as  to  the  claim  of  the  defendants  that 


the  flowage  act  does  not  meet  the  needs  of 
public  utilities,  it  was  held  In  McMUlan  v. 
Noyes,  supra,  that  a  hydroelectric  company 
engaged  in  manufacturing  electrical  energy, 
and  furnishing  it  primarily  to  the  public, 
was  entitled  to  maintain  a  petition  to  ac- 
quire flowage  rights  under  the  flowage  act. 
Consequently  this  act  affords  to  hydroelectrl- 
cal  companies  engaged  in  manufacturing 
electrical  energy  as  ample  and  adequate 
means  of  obtaining  flowage  rights  as  it  does 
to  any  other  manufacturing  concern.  If  it 
were  decided  that  public  utilities  could  ac- 
quire flowage  rights  under  the  Laws  of  ISIX, 
chapter  164,  the  law  of  the  state  respecttnc 
such  rights  would  he  in  tliis  anomalous  situa- 
tion: Public  utilities  could  obtain  flowage 
rights  by  paying  the  actual  damages  caused 
by  the  flowage  while  all  other  manufacturing 
companies  engaged  in  enterprises  for  the  pub- 
lic use  or  benefit  could  only  acquire  such 
rights  under  the  flowage  act  by  paying  60 
per  cent,  more  than  the  actual  damage.  P. 
S.  c.  142,  U  16, 17. 

Under  the  flowage  act,  if  the  parties  could 
not  agree  upon  the  damages  caused  by  the 
fiowage,  either  party  could  petition  the  court 
for  the  assessment  of  damages.  P.  S.  c.  142, 
§  13.  But  chapter  164  of  the  Laws  of  1911 
does  not  give  to  persons  whose  lands  are  tak- 
en the  right  to  petition  to  the  Public  Service 
Commission  to  have  their  damages  assessed. 
Only  public  utilities  and  railroads  can  peti- 
tion for  such  assessment  of  damages.  There- 
fore, if  this  act  supersedes  the  flowage  act, 
persons  whose  lands  are  flowed  by  public 
utilities  have  lost  not  only  the  right  to  re- 
cover 50  per  cent,  more  than  the  actual  dam- 
age caused  by  the  flowage,  but  they  have 
also  lost  the  right  to  briug  a  petition  to  have 
their  damages  assessed.  This  is  a  cogent 
indication  that  the  Legislature  did  not  In- 
tend to  confer  upon  public  utilities  the  pow- 
er to  acquire  flowage  rights  under  the  pub- 
lic service  commission  act 

It  is  true,  as  the  defendants  state  in  their 
brief,  that  many  companies  under  special 
acts  of  the  Legislature  have  been  granted 
the  power  to  acquire  flowage  rights  by  emi- 
nent domain  without  paying  60  per  cent, 
more  than  the  actual  damages  occasioned 
by  the  flowage.  These  companies,  however, 
have  been  largely  aqueduct  companies  for  the 
purpose  of  supplying  towns  with  water,  and 
some  of  them  were  municipal  water  compan- 
ies, but  the  rights  granted  do  not  imply  the 
use  of  water  for  power.  Only  a  very  few 
of  these  companies  chartered  previous  to  the- 
public  service  commission  act  were  hydro- 
electric companies  similar  to  the  defendants" 
company.  It  will  be  noted  that  some  of  the- 
largest  companies  of  this  character  that  have 
in  recent  years  been  granted  the  right  to  ob- 
tain flowage  riglits  for  power  by  special  leg- 
islative act  have  been  required  to  pay  50- 
per  cent,  more  than  the  actual  flowage  dam- 
ages. Laws  1903,  c.  306:  Laws  1909,  c.  328; 
I^wB  1911,  c  358.    Since  the  passage  of  the 


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R.  I.)      SPOUTINO  ROCK  BEACH  ASS'N  T.  TAX  COM'RS  OP  BHODS  ISIiAND      215 


public  service  commlsiiion  act  In  1911  several 
public  utility  companies  have  been  granted 
by  spedal  acts  of  the  Legislature  power  to 
acquire  flowage  rights  by  paying  only  the 
Actual  flowage  damages.  Laws  1913,  cc.  353, 
^68,  394;  Lavrs  1915,  cc.  285,  303.  If  the  po- 
sition of  the  defendants  Is  correct,  there  was 
no  occasion  for  these  companies  to  seek  such 
rights  by  special  acts  from  the  Legislature, 
and  no  reason  why  they  should  have  been 
fH'auted. 

[3]  As  the  public  service  commission  act 
•does  not  confer  upon  public  utilities  the  pow- 
er to  acquire  flowage  rights  by  eminent  do- 
main, it  does  not  supersede  the  flowage  act, 
■and  the  petition  of  the  plaintiffs  Is  to  stand 
for  trial  in  its  order,  in  accordance  with  the 
agreement  upon  which  It  was  transferred. 

Case  discharged.     All  concurred. 


■<40  R.  I.  4W) 

atovnvo  kock  beach  ass'n  t.  tax 

COM'RS   OF  RHODE   ISLAND. 

(No.  4982.) 

(f^apreme  Court  of  Rhode  Island.    July  6, 1917.) 

1.  Taxation  «i=»115— Taxation  or  Corpora- 
tions—Corporation  FOB  Profit. 

In  determining  whether  a  corporation  is  to 
be  asaessed  as  a  corporation  carrying  on  a  busi- 
ness for  profit,  the  fact  that  no  dividends  have 
oeen  paid  Is  not  material,  where  a  surplus  is  bb- 
ing  accumnlnted  which  necessarily  is  for  the 
benefit  of  the  stockholders. 

[Ed.   Note.— For   other   cases,  see   Taxation, 
Cent  Dig.  |  211.] 

2.  Taxation  ®=»115— Taxation  or  Cobposa- 
TiONS— Cobporation  fob  Profit. 

In  determining  the  nature  of  a  corporation 
for  the  purposes  of  taxation,  the  amount  of  busi- 
uoHi  done  or  the  profits  ra-ide  Is  of  no  eflect. 

[EM.   Note.— For   other    cases,   see    Taxation, 
Cent  Dig.  i  211.] 

3.  Taxation  <g=115  — Taxation  of  Corpora- 
tions— CORPOBATION  FOB  PROFIT. 

Pub.  Laws  1912^  c.  769,  f  9,  provides  for 
taxation  of  corporations  carrying  on  a  business 
•for  profit  Section  47  provides  for  exemption 
of  corporations  organized  for  social  purposes. 
A  corporation  organizpcl  by  special  act  was  em- 
powered to  buy,  sell,  lease,  let,  and  improve  real 
and  personal  property,  bathing  privileges,  and 
other  rights,  and  to  undertake  such  measures  as 
may  promote  the  welfare  of  the  city  of  Newport 
as  a  resort  for  summer  residents  and  owners  of 
cottages,  and  for  the  transaction  of  any  busi- 
ness connected  therewith  and  incidental  thereto, 
with  all  the  powers  and  privileges,  subject  to  all 
the  daties  and  liabilities  set  forth  in  Gen.  Laws 
1806,  c.  177.  The  charter  provided  that  no 
stockholder  should  transfer  his  stock  without 
inving  the  corporation  the  first  opportunity  to 
purchase,  and  that  no  assignee  of  stock  should 
be  entitled  to  privileges  of  membership  or  to 
a  voice  in  the  corporation  affairs  until  regularly 
elected  a  member.  Ueld,  that  the  corporation 
was  not  a  social  corporation,  but  a  corporation 
carrying  on  a  business  for  profit,  since  it  bad 
accumulated  a  large  surplus  through  its  real  es- 
tate holdings  and  was  therefore  taxable  as  a 
business  corporation. 

[Ed.   Note.^-For   other   cases,   see  Taxation, 
Cent  Dig.  $  211.] 

Vincent  and  Baker,  JJ.,  dissenting. 


Exceptions  from  Superior  Court,  Provi- 
dence &  Bristol  Counties;  WUlard  B.  Tan- 
ner, Judge. 

Petition  by  the  Spouting  Rock  Beach  As- 
sociation against  the  Tax  Commissioners  fof 
relief  from  a  tax  assessment.  On  x>etltioner's 
exceptions  to  the  denial  of  the  petition.  Ex- 
ceptions oTerraled. 

Sheffield  &  Harvey,  of  Newport,  for  peti- 
tioner. Herbert  A.  Rice,  Atty.  Gen.  (James 
A.  Tillingbast,  of  Providence,  of  counsel), 
for  respondents. 

STEARNS,  J.  Case  on  the  petitioner's  ex- 
ception to  the  decision  of  the  superior  court 
confirming  a  tax  assessment  made  by  the  re- 
spondents, tax  commissioners  of  the  state  of 
Rhode  Island,  against  the  petitioner,  as  a 
corporation  carrying  on  business  in  this  state 
for  profit. 

Is  the  petitioner  a  corporation  carrying  on 
business  for  profit  within  this  state,  within 
the  meaning  of  section  9,  c  769,  Pub.  Laws 
1912,  or  Is  it,  as  claimed  by  the  petitioner,  a 
corporation  organized  for  social  purposes, 
an'd  consequently  exempt  from  taxation  on 
its  intangible  property,  "called  its  corporate 
excess,"'  as  provided  for  by  section  47  of  said 
chapter?  In  considering  the  nature  of  this 
corporation  we  wUl  examine,  first,  the  pow- 
ers given  to  the  corporation  by  its  charter, 
and  Its  organization  thereunder,  and  then 
the  acts  of  the  corporation. 

The  Bailey  Beach  Association  was  incor- 
porated by  a  special  act  of  the  General  As- 
sembly on  February  6,  1897,  and  the  name 
was  changed  to  the  Spouting  Bock  Beach  As- 
sociation by  amendment  May  20,  1897.  The 
charter  is  as  follows: 

"Section  1.  Robert  Goelet,  Henry  A.  O.  Tay- 
lor, and  I.  Townsend  Burden,  and  their  asso- 
ciates and  successors,  are  hereby  created  a  cor- 
poration by  the  name  of  the  Bailey  Beach  As- 
sociation, for  the  purpose  of  buying,  selling, 
leasing,  holding,  and  improving  real  and  per- 
sonal property,  bathing  privileges,  and  other 
rights,  and  of  undertakine  such  measures  as 
may  promote  the  welfare  of  the  city  of  Newport 
as  a  resort  for  summer  residents  and  owners  of 
cottages,  and  for  the  transaction  of  anv  business 
connected  therewith  and  incidental  thereto, 
with  all  the  powers  and  privileges,  and  subject 
to  all  the  duties  and  liabilities,  set  forth  in 
chapter  177  of  the  General  Laws,  and  of  all 
acts  in  amendment  thereof  and  in  addition 
thereto. 

"Sec.  2.  The  said  corporation  shaU  have  pow- 
er to  make  and  ordain  such  constitntion  and  by- 
laws, not  repugnant  to  the  Constitution  and 
laws  of  this  state  and  of  the  United  States,  aa 
it  may  think  proper,  and  the  same  to  modifj; 
and  repeal  at  pleasure,  to  take,  hold,  and  con- 
vey real  and  personal  property  to  an  amount 
not  exceeding  two  hundred  thousand  dollars, 
and  which  real  and  personal  property  may  be 
divided  into  such  number  of  shares  and  of  such 
amount  as  may  be  determined  from  time  to  time 
by  said  corporation,  and  which  shall  be  deemed 
personal  property  and  be  transferred  as  such 
according  to  such  rules  and  conditions  aa  the 
said  constitution  and  by-laws  of  said  corpora- 
tion may  prescribe. 


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216 


101  ATLANTIC  EBPORTER 


(K.L 


"See.  S.  No  stockliolder  sball  sell  or  transfer 
his  stock  or  any  portion  thereof  without  first 
gMng  said  corporation  the  right  to  purchase 
the  same  at  the  lowest  price  for  which  he  is 
willing  to  sell  such  stock,  and  said  corporation 
may  provide  by  by-laws  in  what  way  such  right 
of  pre-emption  shall  be  exercised  by  said  cor- 
poration. 

"Sec.  4.  This  act  shall  take  effect  from  and 
after  its  passage." 

By  tbe  constitution  of  tbe  corporation  tbe 
amount  of  the  capital  stock  Is  fixed  at  $200,- 
000,  divided  Into  shares  of  $500  each,  with 
stock  certificates  In  the  usual  form,  signed 
by  the  treasurer  and  secretary. 

Clause  5  Is  as  follows : 

"No  assignee  of  stock  in  the  corporation  shall 
be  entitled  to  the  priTileges  of  membership,  or 
to  a  voice  in  the  affairs  of  tbe  corporation,  un- 
til he  shall  have  been  regularly  elected  a  mem- 
ber, as  herein  provided.  ' 

Without  passing  on  the  question  of  the 
legality  of  this  particular  by-law,  it  Is  ap- 
parent that  the  capital  stock  of  this  corpo- 
ration is  similar  to  the  capital  stock  la  the 
ordinary  business  corporation.  It  is  person- 
al property  which  can  be  bought  and  sold. 
Is  transferable  and  assignable,  and  on  the 
decease  of  a  stockholder  the  stock  Is  the  prop- 
erty of  the  estate  of  such  member  unless  dis- 
posed of  by  wilL  Ownership  of  tbe  stock, 
however,  does  not  carry  with  It  the  privilege 
of  membership  and  the  social  enjoyment  of 
the  use  of  the  property. 

In  the  Constitution  are  the  following  pro- 
visions : 

"  'Members'  shall  be  all  persons  who,  having 
been  duly  elected  and  being  stockholders,  are 
members  of  the  corporation.  Every  member,  ex- 
cept the  corporators  and  original  members,  shall 
be  elected  by  the  governing  committee." 

No  person  shall  be  elected  a  member  un- 
less he  is  the  owner  of  at  least  one  share  of 
stock.  Every  member  has  one  vote  for  each 
share  of  stock  held  by  blm,  at  all  meetings 
of  the  corporation.  The  control  of  the  busi- 
ness of  the  corporation,  except  the  sale  or 
mortgage  of  its  real  estate.  Is  vested  In  a 
governing  committee  of  nine  members,  with 
power  to  make  rules  and  regulations  which 
have  the  force  of  by-laws,  and  the  by-laws  of 
the  corporation  may  be  amendeJd  or  repealed 
by  the  governing  committee.  The  by-laws 
also  provide  for  the  use  of  the  property  by 
"subscribers"  who  upon  payment  of  a  sub- 
scription and  on  rote  of  the  executive  com- 
mittee are  entitled  to  tbe  privileges  of  mem- 
bers for  tbe  time  subscribed  for. 

In  article  3  of  tbe  Constitution  is  the  fol- 
lowing provision : 

"Each  original  member  (or  subscriber)  being 
the  owner  of  four  shares  of  the  capital  stock, 
shall  have  the  privilege  at  any  time  of  having 
from  one  to  four  bathhouses  built  and  conveyed 
to  him  (or  to  such  member  as  he  may  designate) 
by  payment  to  the  treasurer  of  one  hundred 
dollars  for  each  house  desired. 

"Said  houses  to  be  built  by  the  association, 
end  to  be  similar  to  those  previously  erected  on 
the  beach,  and  to  he  conveyed  to  the  member 
by  deed  or  grant,  containing  same  covenants, 
etc.,  as  in  deeds  of  bathhouses  made  by  Bailey 
and  Smith,  the  (ormer  owners  of  said  beach." 


Coming  now  to  the  consideration  of  the 
acts  of  the  corporation,  the  following  facts 
appear  from  the  statement  of  the  corpora- 
tion for  the  year  1014,  which  was  filed  by  the 
corporation  under  protest : 

Total  amount  ol  authorized  capital  stock  )200,000  00 

1.    Amount  Issued  and  outstandlag 107,600  00 

Number  of  sbarea  outstanding Z16  00 

Par  value  of  shares 600  00 

Average  fair  cash  value 260  00 

ta.  Rate  of  annual  dividends  paid none 

Zb.  Rats  of  annual  dividends  earned none 

I.    Amount  of  bonds,  debentures,  or  out- 
standing Indebtedness   none 

4.    Gross  receipts  within  and  without  R.  L       7,220  35 
6.    Assets. 

Real    estate  UablllUM. 

and       Im- 
provements I  93,934  14  Capital  stock..  |10T,600  00 

Cash  184  S2 

Securities    ..      11.387  10 
Proflts     and 
loss  1,994  14 


(107,500  00 
0,    Assessed  vsluotlon: 

Real  Estate.  Tangible  Personal. 

Assessed  and  fair  cash       Assessed  and  fair  casta 

value    (41,800  00      value    |2,000  OO 

T.    Securities: 

Certificate   of   deposit,    Newport   Trust 

Co I  8,000  00 

Seven  bonds.    C,  B.  ft  Q.  R.  R. 7.387  10 

One  bond.    N.  J.  Zinc  Co 1,000  00 


^,387  10 


The  manner  of  conducting  tbe  affairs  of 
the  corporation  was  thus  described  by  Mr. 
Paine,  the  assistant  treasurer  of  the  cor- 
poration (cross-examination): 

"Q.  74.  And  from  time  to  time  since  the  pur- 
chase of  the  land  have  you  given  rights  to 
members  by  giving  them  also  an  easement  in  the 
real  estate?  Is  that  the  theory  of  the  associ- 
ation? A.  They  purchased  stodi,  and  that  en- 
titled them  to  bathhouses  or  more,  according  to 
the  number  of  shares  taken."  "Q.  79.  They 
assign  a  bathhouse  from  time  to  Ome,  either 
this  one  or  that  one,  or  any  other,  from  year 
to  year,  to  the  different  members,  and  so  long 
as  they  have  a  bathhouse  it  makes  no  differ- 
ence? A.  No.  It  is  strange  I  can't  remember. 
We  do—  Q.  79.  Don't  you  know  your  method 
of  granting  these  privileges  to  members?  A. 
Yes;  we  do.  I  was  afraid  that  I  might  not 
state  it  exactly — you  see  the  reason  that  I 
hesitate — but  we  do  give  a  deed  to  that  partic- 
ular portion  of  the  beach.  Q.  80.  Occupied  by 
the  bathhouse?  A.  Occupied  by  the  person  who 
purchases  it.  Q.  81.  To  the  purchaser?  A.  To 
the  person  who —  Q.  8Z  Is  the  owner  of  the 
stock?  A.  Who  owns  the  stock.  The  Court: 
A  deed  in  writing?  A.  A  deed  in  writing.  Q. 
83.  You  give  a  deed  in  writing?  A.  In  writing. 
Q.  84.  What  does  that  deed  convey?  A.  That 
conveys— I  am  stating  now  as  well  as  I  can 
recall  so  I  shall  not  make  any  mistake,  that 
conveys  a  bathhouse  of  such  a  number — we  have 
them  all  numbered.  It  conveys  that  particular 
number  to  the  person  purchasing.  The  0>art: 
Then  what  you  give  is  a  deed  to  a  particular 
bathhouse,  and  the  personal  use  of  the  beach; 
is  that  put  on,  too?  A.  A  i>articular  bath- 
house on  the  beach."  "Q.  94.  Tbey  pay  $10 
for  each  house,  and  the  association  takes  care 
of  all  tiie  houses?  A.  It  does.  Q.  95.  Now,  do 
you  charge  admission  to  come  onto  the  beach? 
A.  Nobody  can  come  on  the  beach  unless  by  the 
invitation  of  ai  member.  Q.  96.  Ilie  member 
doesn't  have  to  pay  to  come  on  the  beach? 
A.  The  member  doesn't  have  to  pay.  Q.97. 
Suppose  they  have  guests,  what  system  have 


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B.  L)      SPOUTINO  BOCK  B£AOH  ASS'N  v.  TAX  COM'RS  OP  RHODE  ISLAND      217 


Ton  to  entertain  »  guest?  A.  A  member  pays 
25  cents  for  each  guest  that  he  brings  in."  "Q. 
117.  All  your  revenue  comes  from  the  privileges 
granted  at  the  beach?  A.  From  the  dues  and 
privileges.  Q.  118.  The  different  privileges  at 
the  beach?    A.  Xes,  sir." 

The  corporation  owns  ten  acres  of  land 
on  the  other  side  of  the  street  from  the  bath- 
ing beach,  also  another  strip  of  land  on  the 
water  side  of  the  street  near  the  beach. 

In  regard  to  the  finances  of  the  corpora- 
tlon,  Mr.  Paine  testified  as  follows: 

"Q.  126.  Now  you  have  accumulated  some 
assets  which  conBiBt  of  a  certificate  of  deposit 
of  $3,000;  that  is  in  the  bank  at  Newport; 
you  have  that  in  hand  now?  A.  In  the  bank  at 
Newport.  Q.  127.  Ton  also  have  seven  shares 
of  C,  B.  &  Q.  property— «even  bonds?  A.  bonds. 
Q.  12a  Of  the  C,  B.  &  Q.?  A.  Yes,  air."  "Q. 
130.  And  you  have  one  other  bond  of  $1,000 
facd  value.  Is  that  all  of  your  assets?  A. 
VHhat  is  alL  Q.  181.  O^iat  is  money  assets,  be- 
sides the  property  at  the  beach?  A.  That  is 
all  that  I  am  aware  of.  Q.  132.  What  do  you 
do  with  your  income  firom  this  property?  A. 
We  carry  it,  what  there  is.  Q.  138.  Do  you 
keei>  it  in  the  bank?  A.  Keep  it  in  the  bank; 
or,  if  it  amounts  to  anything  worth  while,  the 
treasurer  buys  some  stock  or  something,  and 
deposits  it.  What  we  have  on  hand  has  been 
stated,  I  believe.  Q.  134.  You  try  to  keep 
your  assets,  these  assets,  the  intangible  assets, 
you  try  to  keep  them  apart  as  a  reserve  fund? 
A.  As  a  reserve  fund  for  any  purpose,  anything 
that  happens.  Q.  135.  You  attempted  to  get 
enough  revenue  from  different  privileges  at  uie 
beach  to  pay  all  the  expenses  at  the  Deacb ;  is 
that  correct?  A.  Yes,  sir.  Q.  136.  Have  you 
some  cash  on  call  besides  these  items?  A.  We 
have  not,  only  what  little  cash  may  be  in  the 
bank.  Q.  137.  A  running  account?  A.  A  run- 
ning account.  Q.  138.  Have  you  ever  sold  any 
of  the  real  estate  that  the  association  original- 
ly bought?  A.  We  have  never  sold  any  that 
I  am  aware  of." 

In  1807,  when  this  special  charter  was 
granted,  corporations  formed  by  general  law 
were  incorporated  In  accordance  with  the 
requirements  of  General  Laws  of  1896,  c.  176, 
now  Gen.  Laws  of  1909,  c.  212.  In  said  chap- 
ter 176  it  was  inroTlded: 

"Hie  several  elasaes  of  corporations  shall  be 
formed  according  to  the  methods  herein  pre- 
scribed. 

"Clsss  I. — Business  Oorjwrations. 

'XDlass  II. — Insurance  and  Banking  Corpora- 
tions. 

"Class  III. — Literary  and  Scientific  Corpora- 
tions and  Miscellaneous  Corporations." 

The  method  provided  for  the  creation  of  a 
social  organization  Is  distinctly  set  forth  in 
section  II: 

"All  libraries,  lycenms,  fire-engine  companies, 
and  corporations  formed  for  religious,  char- 
itable, literary,  scientific,  artistic,  social,  musi- 
cal, agricultural  or  sporting  purposes,  not  or- 
ganized for  business  purposes,  and  all  other 
corporations  of  like  nature  not  hereinbefore 
otherwise  provided  for,  shall  be  created  in  the 
following  manner." 

Five  or  more  persons  may  associate  by 
written  articles  which  shall  express  their 
agreement  to  form  a  corporation,  the  name 
by  which  it  shall  be  known,  the  purpose  for 
wblch  It  is  cmistitnted,  and  the  location. 
Tbls  agreement  must  be  filed  with  the  Secre- 
tary of  State,  and  upon  payment  of  a  fee 
of  five  dollars  the  Secretary  of  State  issues 


a  certificate,  and  the  incorporators  are  then 
authorized  to  carry  out  the  purpose  of  their 
agreement  as  a  corporation. 

Class  I,  business  corporations,  with  certain 
specified  exceptions,  such  as  railway,  quasi 
public  corporations,  etc,  are  formed  in  a 
similar  way,  with  this  difference,  that  the 
written  articles  of  the  associates  must  con- 
tain a  statement  of  the  amount  of  capital 
stock  and  the  par  ralne  of  each  share,  and 
the  fee  for  incorporation  in  this  class  is  $100. 

The  apparent  purpose  of  this  statute  was 
to  provide  a  simple  method  of  Incorporation 
for  Class  I  and  Class  III  corporations,  wlth- 
otit  Imposing  upon  the  Incorporators  the 
burden  and  expense  of  a  special  application 
to  the  Legislature,  and  also  to  provide  for  the 
creation  of  corporations  at  times  when  the 
Legislature  was  not  in  session.  This  corpora- 
tion at  the  time  of  its  formation  belonged 
either  in  "Class  I. — ^Business  Corporations," 
or  "Class  III. — Literary  and  Scientific  Cor- 
porations and  Miscellaneous  Corporations." 
If  the  attempt  had  been  made  to  incorporate 
under  the  general  law  under  Class  III,  and 
the  proposed  articles  of  agreement  Iiad  con- 
tained the  statement  of  the  purpose  for  which 
the  proposed  corporation  was  constituted,  as 
set  forth  in  section  1  of  the  charter,  and  also 
the  provision  for  capital  stock,  it  is  dear 
that  the  Secretary  of  State  could  not  have 
issued  a  certificate  of  incorporation,  as  for  a 
corporation  formed  for  social  purposes  not 
organized  for  business  purposes.  The  parties 
would  have  been  required  to  incorporate  un- 
der the  "Class  I. — Business  Corporations," 
and  the  fact  that  the  corporation  .was  created 
by  special  act  does  not  change  the  nature  of 
the  oorporatloa  The  language  of  this  char^ 
ter  neither  expresses  nor  implies  in  any  way 
the  formation  of  a  corporation  for  a  social 
purpose.  The  Instrument  is  silent  on  the 
subject  of  promoting  the  social  welfare  of 
its  members.  It  states  nothing  from  which  It 
may  be  inferred  that  the  corporation  Is  con- 
stituted for  any  social  object  or  purpose.  The 
clause,  "and  of  undertaking  such  measures  as 
may  promote  the  welfare  of  the  city  of  New- 
port as  a  resort  for  summer  residents  and 
owners  of  cottages,"  Is  incidental  and  sub- 
sidiary in  this  section  of  the  charter,  and 
does  not  change  the  general  business  charac- 
ter of  the  powers  granted.  Social  clubs  are 
not  organized  for  the  purpose  of  buying  and 
selling  and  improving  real  and  personal 
property.  By  general  law,  and  without  spe- 
cial authority  of  the  state  (section  13,  c.  176, 
Gen.  Laws  1896,  now  section  13,  c.  212,  Gen. 
Laws  1909),  a  social  dub  is  entiUed  to  "take, 
hold,  transmit,  and  convey  real  and  personal 
estate  to  an  amount  not  exceeding  in  all  one 
hundred  thousand  dollars."  This  power  is 
given  to  such  organizations  as  an  Incident  to 
the  main  purjmse,  which  is  the  social  en- 
joyment of  the  members,  and  to  enable  such 
social  club  to  provide  the  place  and  means 
for  social  enjoyment.    It  is  a  much  more  i»- 


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101  ATIANTIO  KBPOUTBB 


(B.I. 


atricted  pawer  than  the  power  of  buying  and 
selling  given  by  this  charter. 

The  organization  of  this  corporation  is 
diCFerent  in  many  respects  from  that  of  the 
ordinary  social  organization,  in  which  mem- 
bers have  equal  rights  of  control.  In  this 
corporation  tiie  members  have  a  share  In  the 
control  and  a  property  interest  In  the  corpo- 
ration proportionate  to  their  stock  holdings. 
By  purchase,  gift,  or  Inheritance  a  person 
may  become  a  stockholder  and  part  owner 
of  the  property  of  the  corporation  without 
thereby  becoming  entitled  to  any  enjoyment 
of  the  social  privileges  of  members.  Three 
classes  are  created  by  the  constitution  and 
by-laws.  The  stockholders  who  are  the  own- 
ers of  the  property,  members  who  are  also 
owners  but  who  must  be  elected  to  member- 
ship, and  pay  an  initiation  fee  and  dues  In 
order  to  enjoy  the  social  privileges,  and  snb- 
scribers  who  are  allowed  temporarily  the 
social  privileges  on  payment  therefor. 

There  Is  a  distinction  drawn  between  the 
stockholders,  the  owners  of  the  property  and 
the  persons  who  may  enjoy  the  social  privi- 
leges of  Its  use. 

[1,J]  The  actual  conduct  of  the  corpora- 
tion affairs  discloses  the  existence  of  a  cor- 
poration doing  business  to  a  limited  extent 
for  the  benefit  of  the  stockholders,  and  also 
engaged  in  rendering  services  to  a  particu- 
lar class  of  persons,  which  latter  group  coa- 
stitutes  the  social  organization.  The  state- 
ment supra  shows  that  the  corporation  has 
acquired  a  surplus  which  It  calls  a  reserve, 
and  with  the  surplus  It  has  Invested  In  bonds. 
The  policy  of  the  corporation  apparently  is 
to  accumulate  a  surplus  and  not  to  divide  it 
in  the  form  of  dividends.  The  result  of  either 
method  is  of  benefit  to  the  stockholders,  and 
the  fact  that  no  dividends  have  been  paid  Is 
not  material.  It  is  argued  that  by  the  use  of 
the  words  In  the  tax  act,  "a  corporation  car- 
rying on  business  for  profit,"  it  was  the  in- 
tent of  the  Legislature  to  Impose  the  tax  on  a 
class  of  corporations  different  from  the  class 
of  corporations  heretofore  referred  to  as 
"Class  I. — Business  Corporations."  We  are 
unable  to  discover  any  such  Intention  after 
an  examination  of  the  statutes  in  question, 
but,  even  if  this  contention  was  sound,  in 
this  case  the  facts  show  that  the  corporation 
has  carried  on  business  for  profit,  and  that 
thus  it  comes  within  the  letter  of  the  law  as 
well  as  its  spirit.  Granting  that  the  amount 
of  business  done  is  less  than  might  have  been 
done,  and  that  the  gain  Is  not  large,  this  does 
not  change  the  character  of  the  corporate 
activity. 

The  question  in  this  case  Is  one  which  in- 
volves the  interpretation  of  the  la,WB  of  this 
state,  and  more  particularly  the  provisions  of 
chapter  769,  enacted  In  1912.  No  cases  have 
been  called  to  our  attention  by  counsel  which 
have  any  decisive  bearing  on  the  question 
Involved. 

[3]  In  the  case  of  R.  I.  Hospital  Trust  Co. 


V.  Rhodes,  37  B.  I.  141.  91  AtL  50,  decided  In 
1914,  this  court  has  defined  the  meaning  of 
the  phrase  "carrying  on  business,"  and  dis- 
cussed the  general  meaning  of  the  act  in 
question.  The  precise  issue  In  this  case,  how- 
ever, was  not  Involved  In  the  decision  of 
that  case.  In  consideration  of  the  intent  of 
the  original  incorporators,  as  shown  by  the 
application  for  and  acceptance  of  the  charter, 
and  the  character  of  the  organization  effect- 
ed, and  the  nature  and  results  of  the  corpora- 
tion acts,  we  are  of  the  opinion  that  the  peti- 
tioner is  a  corporation  "carrying  on  business 
for  profit,"  and  consequently  that  the  tax 
appealed  from  was  properly  assessed. 

The  petitioner's  exception  is  overruled, 
and  the  case  is  remitted  to  superior  court 

BAKER,  J.  (dissenting).  As  I  do  not  agree 
with  the  conclusion  reached  In  the  opinion 
of  the  majority  of  the  court,  I  hereby  state 
the  grounds  of  my  dissent. 

The  petition  was  filed  in  the  superior  court 
In  accordance  with  the  provisions  of  section 
18  of  chapter  769  of  the  I'ubllc  Laws,  pray- 
ing for  relief  from  a  tax-  assessed  against 
the  petitioner,  under  section  12  of  said  act, 
upon  its  corporate  excess  for  the  years  1912. 
1913,  and  1914.  The  petition  was  denied,  the 
petitioner  excepted,  and  the  case  Is  before 
us  on  its  bill  of  exceptions. 

Chapter  769,  In  sections  9,  10,  and  11,  pro- 
vides for  the  assessment  of  a'  tax  of  that  por- 
tion of  the  Intangible  property  of  certain  cor- 
porations and  Joint  stock  companies  called 
their  corporate  excess.  This  expression  "cor- 
porate excess"  was  a  new  designation  euid 
classification  of  property.  The  classification 
of  corporations  liable  to  this  tax  is  effected 
by  the  use  of  the  language,  "every  corpora- 
tion •  •  •  carrying  on  business  for 
profit  in  this  state." 

Two  questions  arise:  First,  What  Is  the 
proper  Interpretation  of  the  words  "carrying 
on  Imslness  for  profit"?  Second,  Was  the 
Spouting  Rock  Beach  Association,  a  corpora- 
tion, "carrying  on  business  for  profit  in  this 
state"   In   the  years  1912,   1913,   and   1914? 

It  is  to  be  noted  that  the  language  of  sec- 
tion 9  aforesaid  creates  a  new  classiflcatlou 
of  corporations  hitherto  not  known  to  our 
statutes.  When  chapter  769  was  passed  in 
1912,  chapter  212  of  the  General  Laws  was 
In  force,  which  classifies  corporations  Into 
three  classes:  "I. — Business  Corporations^ 
II. — ^Insurance  and  Banking  Corporations, 
in. — Literary  and  Scientific  Coittoratlons 
and  Miscellaneous  Corporations."  If  the 
General  Assembly  intended  by  said  section  0 
to  make  "Class  L — Business  Corporations," 
as  such,  subject  to  the  tax  for  corporate  ex- 
cess. It  would  have  been  both  easy  and  nat- 
ural to  adopt  the  existing  and  well-known 
classification.  Including  with  them  also  siut- 
llar  business  corporations  Incorporated  under 
special  charters.  The  natural  Inference  is 
that  the  liegialature,  in  not  adopting  the  ex- 


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R.  1.)      8POUTINO  ROCK  BEACH  ASS'N  y.  TAX  COM'RS  OF  RHODE  ISLAND      219 


istlng  classification.  Intended  and  did  make 
a  new  classification  of  corporations  for  the 
tmrpose  of  determiniu?  their  Ilabiltty  to  be 
taxed  for  corporate  excess.  This  view  Is 
supported  by  the  caption  preceding  section  9, 
which  is  "Taxation  of  Manufacturing.  Mer- 
cantile, and  Miscellaneous  Corporations." 
The  petitioner  is  certainly  neither  a  manu- 
facturing nor  a  mercantile  corporation,  and. 
If  taxable  under  section  0,  it  must  be  under 
the  designation  "Miscellaneous  Corpora- 
tions." But  under  chapter  212,  "Miscella- 
neous Corporations"  is  placed  under  Class 
III.  Obviously  the  words  in  the  two  chap- 
ters are  nsed  with  different  meanings,  thus 
further  Indicating  an  intentional  departure 
from  the  classifications  at  chapter  212. 
Moreover,  the  classification  In  the  two  chap- 
ters shows  another  significant  and  basic  dif- 
ference. The  classiflcation  nnder  chapter  212 
is  (speaking  In  a  general  way)  based  upon 
the  character  of  the  dissimilar  powers  given 
the  different  corporations.  The  class  created 
by  section  9  rests  upon  the  actual  activities 
of  the  corporation,  coupled  with  and  modified 
by  the  words  "for  profit,"  as  expressive  of 
the  purpose  of  such  activities.  The  neces- 
sary Inquiry  as  to  the  latter  class  is.  What  Is 
the  corporation  doing  for  the  purpose  of 
gain?  and  not.  Do  Its  corporate  powers  make 
It  a  business  corporation? 

In  R.  I.  Hospital  Trust  Co.  v.  Rhodes,  37 
R.  1. 141,  on  page  149,  91  Atl.  50,  on  page  52, 
this  court  stated  that  the  words,  "every  cor^ 
poratlon  •  •  •  carrying  on  business  for 
profit  In  this  state,"  effected  a  general  clas- 
Kiflcation  of  corimrations  liable  to  a  tax  for 
corporate  excess,  and  held  that,  in  addition 
to  the  corporations  specially  excepted  from 
such  taxation  by  chapter  769  (that  is,  busi- 
ness corporations  of  certain  kinds  and  all 
corporations  in  Glass  lU,  under  chapter  212), 
"by  implication  •  •  •  all  corporations  not 
'carrying  on  business  for  profit  in  this  state' 
wwape  liability  for  taxation  for  'corporate 
excess.'"  In  other  words.  It  Is  held  that 
other  business  corporations,  other  than  those 
spedfled,  may  be  exempt  from  taxation  for 
corporate  excess.  It  may  be  readily  agreed 
in  the  present  case  that  the  petitioner,  Judg- 
ed by  the  principles  of  classification  estab- 
lished in  chapter  212,  is  a  boslness  corpora- 
tion. But  that  would  aid  little.  If  at  all,  in 
determining  the  question  now  raised,  which 
Is  to  be  answered  by  means  >ot  the  new  clas- 
sification Instituted  for  the  purpose  of  deter- 
mining liability  for  taxation  for  corporate 
excess.  The  rule  as  to  the  interpretation  of 
statutes  Is  clearly  stated  as  follows  in  26 
Am.  Sc  Bng.  EMcy.  of  Law,  598: 

"Where  Meaning  Plain,  the  Letter  Controls— 
(1)  General  Statement.  In  order  to  ascertain 
the  legiblative  intention,  the  primary  rule  is 
tliat  a  f^tatiite  is  to  receive  that  meaning  which 
the  ordinary  reading  of  its  language  warrants, 
words  not  technical  being  taken  in  their  ordi- 
nary, familiar  acceptation,  with  regard  to  their 
general  and  popular  use;  and  the  meaning  thus 
ortired  at  most  be  adopted  when  it  iovolves  no 


absurdity,  if  from  a  view  of  the  whole  law  and 
other  laws  in  i>ari  materia  no  different  legis- 
lative intent  is  apparent. 

"(2)  Results,  Motives,  and  Policy  Not  Con- 
sidered. If  the  language  is  clear  and  admits 
but  one  meaning,  the  Legislature  should  be  in- 
tended to  mean  what  it  has  plainly  expressed, 
and  there  is  no  room  for  construction.  The 
plain  and  sound  principle  is  to  declare  ita  lex 
scripta  est,  although  so  understood  the  statute 
leads  to  absurd  and  mischievous  results,  or  to 
conaeqnences  not  contemplated  by  the  Legis- 
lature; for  courts  are  not  to  inquire  as  to  the 
motive  of  the  Legislature,  nor  to  depart  from  a 
meaning  clearly  conveyed  in  nnambiguous 
words,  neeause  the  statute,  as  literally  under- 
stood, appears  to  lead  to  unwise  consequences 
or  to  contravene  public  policy.  A  fortiori  there 
can  be  no  departure  from  the  terms  of  Uie  stat- 
ute where  no  absurdity  or  inconvenience  will 
follow  from  a  literal  interpretation." 

The  meaning  of  the  words  "carrying  on 
business  for  profit"  is  so  plain  as  to  leave  no 
room  for  construction.  If  we  substitute  for 
them  the  expression  "prosecuting  or  conduct- 
ing business  for  the  purpose  of  pecuniary 
gain"  we  do  not  explain  the  original  erptea- 
sion,  but  simply  paraphrase  it  In  R.  I.  Hos- 
pital Trust  Co.  V.  Rhodes,  supra,  the  question 
considered  was  whether  the  United  Trac- 
tion &  Electric  Company  was  "carrying  on 
business  for  profit  in  this  state."  Its  powers 
under  its  charter  were  numerous,  broad,  and 
comprehensive.  It  clearly  was  a  business 
corporation.  In  considering  the  question  of 
its  liability  to  this  peculiar  form  of  taxation, 
this  court  took  into  account  only  the  exer- 
cise of  its  corporate  powers  actually  employ- 
ed, and  held  that  the  exercise  of  any  of  its 
corporate  powers  in  this  state  constituted 
the  "carrying  on  of  business."  It  also  rec- 
ognized the  fact  that  the  inquiry  involved  the 
ascertaining  of  whether  the  business  was 
conducted  for  profit,  when  It  said  (37  R.  I. 
on  page  147,  91  AtL  on  page  61) : 

"It  is  certainly  idle  to  suggest  that  the  ac- 
tivities of  the  company,  by  whatever  name  they 
may  be  characterized,  were  not  carried  on  'for 
profit.'  The  stockholders  received  eight  hundred 
and  fifty  thousand  dollars  a  year  on  ita  invested 
capital,  and  the  only  reasonable  inference  is 
that  they  were  maintaimng  the  corporation  and 
carrying  on  its  work  for  the  "profit'  or  gain 
afforded  thereby  and  not  for  pleasure  or  char- 
ity." 

Under  the  authority  of  the  case  quoted, 
the  Sponting  Rock  Beach  Association  is  cer- 
tainly carrying  on  business  in  this  state. 
The  only  question,  as  affecting  its  liability 
to  be  taxed  for  corporate  excess,  is  as  to 
whether  It  is  carrying  on  business  "for  prof- 
it." The  argument  ab  Inconvenienti,  as  re- 
lated to  the  dllHculty  of  the  tax  commission- 
ers ascertaining  whether  a  business  is  car- 
ried on  for  profit,  should  be  given  little 
weight  in  view  of  the  rule  of  construction 
already  quoted.  Moreover,  chapter  769  ap- 
parently contemplates  Investigation  along 
this  line  in  fixing  the  amount  of  corporate 
excess,  as  may  be  seen  by  a  careful  examina- 
tion of  the  provisions  of  sections  9,  10,  and 
11  of  that  chapter. 

I  think  the  opinion  of  the  majority  inac- 
curately states  the  questiona  Involved,  and 


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220 


101  ATLANTIC  REPORTBE 


(at. 


also  the  dalm  of  tbe  petitlooer  In  saying, 
"Or  Is  It,  as  claimed  by  the  petitioner,  a  cor- 
poration organized  for  social  purposes,  and 
consequently  exempt  from  taxation  on  its  in- 
tangible property,  called  Its  corporate  ex- 
cess, as  provided  for  by  section  47  of  said 
.chapter."  I  fall  to  find  any  claim  of  ezen^ 
tion  under  section  47.  On  the  contrary,  the 
claim  is  that  the  petitioning  corporation  is 
not  in  the  class  created  by  the  words  "carry- 
ing on  business    •    *    *    for  prottt" 

For  the  reasons  above  stated,  I  am  of  the 
opinion  that  the  words  "carrying  on  business 
•  •  •  for  proflt"  should  receive  the  mean- 
ing which  the  words  have  when  "taken  In 
their  ordinary  familiar  acceptation,  with  re- 
gard to  their  general  and  popular  use." 

The  remaining  question  is  one  of  fact. 
As  the  majority  opinion  quotes  the  act  of 
Incorporation  in  full  and  portions  of  the  con- 
stitution and  by-laws,  states  the  amount  of 
capital  stock  authorized,  and  the  par  value 
of  the  shares  of  stock,  it  Is  not  necessary  to 
restate  these  matters.  The  statement  of  the 
corporation  for  1914  filed  with  the  tax  com- 
missioners shows  its  asseta  and  llabilitlea  to 
be  as  follows: 
Real  estate  and 

ImproTementa  %  93,934  U 

Cash  184  t» 

Securities  11.387  10 

ProdU  and  loss       1,994  14 


%im,SllO  00 


UabllltlM. 


Capital  stock.. .  )107,EOO  00 

Respecting  this  statement,  Frederick  H. 
Paine,  assistant  treasurer  and  assistant  sec- 
retary, testified  in  his  direct  examination: 

"Q.  4.1.  That  was  all  you  held  to  represent  the 
$107,500  worth  of  capital  stock  was  that  real 
estate  and  those  securities?    A.  That  Is  all." 

And  In  cross-examination: 

"Q.  68.  Is  the  real  estate  and  improvemeats 
thereon  carried  on  your  books  as  to  that 
amount,  and  returned  to  the  tax  assessors,  $93,- 
934.14?  A.  Everything  here  was  taken  from 
the  books.  Q.  60.  It  was  taken  from  the 
books?  A.  Yea.  sir.  Q.  70.  Then  they  have 
actually  spent  for  land  and  for  improvements 
on  the  land  something  over  $93,000.  Is  that 
correct?  A.  That  is  correct,  as  far  as  I  can 
tell."  "Q.  136.  Have  you  some  cash  on  call  be- 
sides these  items?  A.  We  have  not,  only  what 
little  cash  may  be  in  the  bank.  Q.  l37.  A  run- 
ning account?    A.  A  running  account." 

Just  preceding  these  last  two  questions, 
the  witness  has  been  Interrogated  as  to  the 
Items  grouped  as  "securities"  In  the  state- 
ment. The  statement  In  evidence  shows 
that  no  dividends  had  been  paid  an'd  none 
earned.  It  Is  obvious  from  this  that  the 
Item,  "Profits  and  loss,  $1,994.14,"  represents 
loss,  and  that  the  corporation,  in  the  17 
years  of  Its  existence,  had  not  been  carrying 
on  business  at  a  proflt.  It  Is  to  be  reason- 
ably Inferred  also  that  the  item,  "Securities, 
$11387.10,"  represents  capital,  probably  aris- 
ing from  the  sale  and  issuance  of  capital 
stock  since  the  purchase  of  the  land  and  the 
maUng  of  the  improvements. 

It  may  be  agreed,  however,  that  the  fact 


that  the  business  had  been  conducted  at  a 
loss  does  not  in  itself  establish  the  further 
fact  that  it  was  not  conducted  for  proflt.  Mr. 
Paine  testified,  in  reply  to  the  question,  "Is 
the  corporation  operated  for  proflt?"  "A- 
It  is  not."  This  is,  of  course,  not  conclusive, 
but  as  the  opinion  of  a  well-informed,  though 
presumably  an  Interested  witness.  It  Is  to  be 
considered.  Speaking  in  general  terms,  the 
petitioner  exercised  its  corporate  powers  by 
buying,  holding,  and  improving  real  estate 
and  thereafter  leasing  bathing  privileges. 
These  bathing  privileges  it  has  conducted  Id 
the  form  of  a  club  organization,  with  the 
customary  restrictions  as  to  membership  and 
the  use  of  club  privileges.  In  this  respect 
its  activities  have  the  characteristics  of  those 
of  a  social  club,  peculiar  In  the  respect  that 
they  are  conducted  on  a  beach  and  during 
the  three  or  four  months  of  each  year  when 
in  this  region  out-of-door  bathing  la  ordina- 
rily Indulged  in.  This  Is  the  only  business 
carried  on  by  the  corporation  during  the 
three  years  when  the  taxes  In  question  were 
assessed.  The  only  revenue  or  Income  of  the 
corporation  was  the  dividends  on  Its  securi- 
ties, the  annual  dues  of  $20  due  from  each 
of  its  71  members,  the  annual  charge  of  $10 
on  each  bathing  house  belonging  to  members 
(a  member  being  entitled  to  own  one  bath- 
house for  each  share  held  by  him),  the  dues 
receivable  from  persons  temporarily  admit- 
ted to  the  club  privileges  of  the  corpora- 
tion, called  subscribers,  the  amount  of  which 
Is  not  in  evidence,  an'd  the  sums  received 
from  members  paying  25  cents  for  eadi  guest 
brought  in  by  them.  The  social  character  of 
the  petitioner's  activities,  and  their  puri>oses 
as  being  similar  in  kind  to  those  of  a  purely 
social  club,  are  clearly  evidenced  by  the  con- 
stitution and  by-laws.  The  total  amount  of 
revenue  Is  not  shown.  There  is  an  Item  In 
the  statement  for  1914  of  total  gross  receipts 
of  $7,220.25,  but  this  amount  may  contain 
proceeds  of  the  sale  of  stock  during  that 
I)eriod.  Tb6  fact  that  the  largest  possible 
annual  revenue  from  membership  dues  and 
the  charges  on  the  215  bathhouses  which  the 
members  are  entitled  to  have  (one  for  each 
share)  is  $3,570  makes  It  probable  that  such 
receipts  contain  such  proceeds  of  sale.  In- 
asmuch as  the  stockholders  are  shown  to 
have  paid  $500  a  share  for  their  stock,  and 
to  have  contributed  annually  approximately 
at  least  the  amount  of  $3,500  for  the  upkeep 
and  management  of  the  corporation  an'd  its 
property,  and  never  to  have  received  a  div- 
idend on  their  stock,  it  is  difficult  to  rea- 
sonably conclude  that  they  acquired  and  have 
continued  to  hold  the  stock  of  this  corpora- 
tion as  an  Investment,  or  for  any  other  pur- 
pose than  the  enjoyment  of  the  bathing  and 
other  privileges  and  pleasures  afforded  them 
as  members.  This  is  plainly  apparent  from 
the  fact  that  37  of  the  71  members  each  hold 
four  shares  of  stock  and  upwai'ds,  a  large 
and  controlling  majority  of  the  stock.    And 


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EAZARIAX  BROS.  ▼.  PROVIDENCE-WASHINGTON  INS.  CO. 


If  we  consider  the  purposes  of  the  present 
activities  of  tiie  cortM>ration  as  sbown  In 
Its  constitution  and  by-laws,  and  the  char- 
acter of  these  activities  themselves,  and  the 
farther  fact  that  the  corporation,  by  the  con- 
tinued maintenance  of  these  activities  for 
17  years,  has  brought  to  Itself  no  pecuniary 
profit,  but  the  contrary,  it  is  equally  difficult 
to  Infer  or  believe  that  the  corporation  has 
been  "carrying  on  business  for  profit."  I  am 
of  the  opinion  that,  on  the  contrary.  It  very 
clearly  appears  that  the  petitioner  has  not 
been  "carrying  on  business  tn  this  state  for 
profit" 

The  presiding  Justice  of  the  superior  court 
In  his  oral  dedslon  at  the  close  of  the  testi- 
mony, after  saying  that  the  question  was 
"somewhat  close,"  said: 

"I  think  they  are  doinK  business  to  make  mon- 
ey, and  if  they  go  on  making  a  profit  on  the 
enterprise,  *  *  *  if  an  association  of  tiiis 
kind  for  any  reason  elected  to  diesoive,  and  bad 
a  big  surplus  in  its  treasury,  every  atockholdei 
would  get  the  benefit  of  it,  and  there  would  be 
a  profit  there." 

I  think  he  misinterpreted  the  Item,  Secxtri- 
ties"  as  indicating  a  surplus,  and  from  this 
that  the  corporation  had  made  and  was  mak- 
ing; a  profit  in  the  conduct  of  Its  business, 
and  therefore  concluded  that  the  business 
was  conducted  to  make  money.  For  the  same 
reason,  I  think  that  the  majority  opinion  is 
In  error  In  stating  that  the  petitioner  has 
"acquired  a  surplus."  This  impression  of  the 
existence  of  a  surplus  was  perhaps  derived 
from  the  cross-examination  of  Mr.  Paine 
(questions  126  to  135,  inclusive,  quoted  in  the 
majority  opinion).  The  inquiry  related  to 
the  different  items  of  the  securities.  After 
naming  them,  a  part  of  question  1.30  is: 

"Is  that  all  vour  assets?  A.  That  is  all  that 
I  am  aware  of.  Q.  132.  What  do  you  do  with 
your  income  from  this  property?  A.  We  carry 
it,  what  there  is." 

The  word  "Income,"  from  its  construction, 
plainly  refers  to  the  income  from  these  se- 
curities. Question  135  and  its  answer  clear- 
ly show  this.  Ills  answer  to  question  134, 
that  these  assets  are  kept  "as  a  reserve  fund 
for  any  purpose,  anything  that  happens," 
might  aid  the  impression  of  a  surplus.  But 
as  hereinbefore  pointed  out,  the  statement 
filed  with  the  tax  commissioners  shows  be- 
yond question  that  the  corporation  has  ac- 
camulat€»d  no  surplus  in  excess  if  Its  liabili- 
ties. 

Ab  has  already  been  stated,  my  opinion  Is 
that  the  evidence  clearly  shows  that  no  pe- 
cuniary profit  has  resulted  from  the  business, 
and  that  tliere  Is  no  surplus,  and  therefore 
that  the  conclusion  that  the  corporation  was 
"doing  business  to  make  money"  is  without 
aopport. 

Accordingly,  I  am  of  the  opinion  that  the 
decision  of  the  presiding  Justice  denying  the 
petitioner  relief  was  clearly  an  error,  and 
that  the  exception  should  be  sustained,  and 


the  case  remitted  to  the  superior  court  for  a 
new  trlaL 

VINCENT,  J.,  concurs  in  dissenting  opin- 
ion of  BAKER,  J. 


KAZARIAN    BROS.    v.    PROVIDENOB- 

WASHINGTON  INS.  CO. 

(No.  4972.) 

(Supreme  Court  of  Rhode  Island.    July  6, 
1917.) 

1,  Plbadino  <s=389  —  Withdbawai.  of  Spe- 
cial Plea— Discretion  of  Court. 

It  was  within  the  discretion  of  a  justice  of 
the  superior  court  to  permit  the  withdrawal  of 
defendant's  special  plea  to  a  count  of  the  decla- 
ration in  an  action  on  a  fire  policy. 

[Ed.  Note. — For  other  cases,  see  Pleading, 
Cent  Dig.  |§  1033-1045.] 

2.  Insurance  is=»068(14)  —  Action  on  Fibb 
Policy— Nonsuit. 

In  an  action  on  a  fire  policy,  where  the 
plaintiff  failpd  to  present  evidence  establishing 
the  filing  of  proof  of  loss  in  accordance  with  the 
requirements  of  the  policy,  the  court  properly 
granted  a  nonsuit. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  gg  1747.  1749,  1750,  1766,  176&] 

8.  Insurance  <g=9230— Action  on  Fibb  Pot- 

iCT— Nonsuit. 
In  an  action  to  recover  unearned  premiums 
paid  on  a  fire  policy,  where  plaintiff  failed  to 
present  evidence  of  a  return  of  the  policy  to 
the  defendant  as  required  by  the  policy,  the 
conrt  properly  granted  a  nonsuit 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  H  509-512.] 

Exceptions  from  Superior  Court,  Provi- 
dence and  Bristol  Counties ;  Wlllard  B.  Tan- 
ner, Presiding  Justice. 

Action  by  Kazarian  Bros,  against  the 
Providence-Washington  Insurance  Company. 
On  plalntifTs  exceptions  to  the  granting  of  a 
nonsuit.  Exceptions  overruled,  and  case  re- 
manded to  superior  court  for  entry  of  Judg- 
ment upon  the  nonsuit. 

Reargumcnt  denied  102  Atl.  88.  See,  also, 
96  Atl.  839. 

William  J.  Brown,  of  Providence,  l]br 
plalntifTs.  Claude  B.  Branch  and  Edward.* 
&  Angell,  all  of  Providence,  for  defendant. 

PER  CURIAM.  This  is  an  action  in  as- 
sumpsit brought  upon  a  fire  Insurance  policy 
issued  by  the  defendant  to  the  plaintiffs  to 
recover  for  a  loss  by  fire  alleged  to  have  oc- 
curred to  the  property  covered  by  said  pol- 
icy. 

The  declaration  is  In  two  counts.  The  first 
count  alleges  that  a  large  amount  of  said 
property  was  destroyed  by  fire,  and  that 
the  plaintiffs  filed  with  the  defendant  due 
notice  and  proof  of  loss  in  accordance  with 
the  requirements  of  the  policy.  The  de- 
fendant canceled  said  policy  after  the  fire 
and  loss  alleged  in  the  first  count;  and 
the  second  count  was  for  the  recovery  of 
a  certain  sum  as  unearned  premium.  The 
defendant  pleaded  the  general  Issues  to  both 


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counts,  and  also  pleaded  specially  to  the 
first  count.  To  this  special  plea  the  plain- 
tiffs replied  by  two  special  replications,  to 
which  replications  the  defendant  demurred. 
Said  demurrers  were  sustained  In  the  su- 
perior court  The  case  was  tried  before  a 
Justice  of  the  superior  court  sitting  without 
a  jury.  Before  proceeding  to  trial,  the  de- 
fendant moved  that  the  court  permit  it  to 
withdraw  its  special  plea  to  the  first  count  of 
the  declaration.  This  motion  was  granted 
by  said  Justice,  to  which  action  of  said  Jus- 
tice the  plaintiffs  excepted.  At  the  conclu- 
sion of  the  plaintiffs'  evidence,  on  motion  of 
the  defendant,  said  Justice  nonsuited  the 
plaintiffs  on  the  first  count  of  their  declara- 
tion on  the  ground  that  the  evidence  dis- 
closed that  the  plaintiffs  had  not  filed  with 
the  defendant  a  proof  of  their  loss  in  ac- 
cordance with  the  terms  of  the  policy.  Said 
Justice  nonsuited  the  plaintiffs  on  the  sec- 
ond count  on  the  ground  that  the  evidence 
showed  that  the  plaintiffs  had  never  surren- 
-dercd  said  policy  to  the  defendant,  upon 
which  surrender  alone,  under  the  terms  of 
the  policy,  their  right  to  recover  the  un- 
«amed  premium  accrued  to  them.  The  plain- 
tiffs also  claim  other  exceptions  to  certain 
rulings  of  said  Justice  made  during  the  trial. 

[1]  It  was  within  the  discretion  of  said 
justice  to  permit  the  withdrawal  of  said 
special  plea.  We  fail  to  see  that  the  plain- 
tiffs can  properly  claim  they  were  prejudiced 
hy  that  action  of  said  Justice.  The  plaintiffs 
take  nothing  by  this  exception. 

[2,  3]  The  nonsuit  was  properly  granted. 
The  plaintiffs  clearly  failed  to  present  evi- 
dence establishing  either  the  filing  of  proof 
of  their  loss  with  the  defendant  or  the  re- 
turn of  said  policy  to  the  defendant 

The  other  exceptions  of  the  plaintiffs  are 
entirely  unimportant  in  view  of  our  opinion 
upon  the  question  of  nonsuit 

All  the  plaintiffs*  exceptions  are  overruled ; 
the  case  is  remitted  to  the  superior  court 
for  the  entry  of  judgment  upon  the  nonsuit 


RICHARDS  V.  CAVALRY  CLUB  OF 
RHODE  ISLAND.    (No.  882.) 

(Snpreme  Court  of  Rhode  Island.    July  6, 
1917.) 

1.  CoBPO&ATiONS  ^=>613(1)— Pboceeoins  fob 
Dissolution— Pabtikb. 

Proceedings  for  the  dissolution  of  a  cor- 
poration because  it  has  ceased  to  act  under  its 
franchise  cannot  be  brought  by  a  private  indi- 
vidual but  mast  be  brought  by  the  state. 

[Ed.  Note. — For  other  cases,  see  Corporatioas, 
Cent  Dig.  H  2431-2434.] 

2.  COKFOBATIONB   <^=>092 — PETITION   FOB   DIS- 
SOLUTION—DISMISSAL. 

A  petition  based  on  Gen.  Laws  1909,  c.  213, 
i  27,  as  amended  by  Pub.  Laws  1911-12,  c.  780, 
providing  for  proceedings  for  the  dissolution  of 
corporations,  was  properly  dismissed,  where  it 
appeared  not  only  that  the  active  members  of 
the  corporation  did  not  wish  to  have  it  dissolv- 
ed, but  that  the  corporation  did  not  Iiave  capital 


stoclc,  and  a  majority  of  the  members  had  not 
voted  to  dissolve,  and  that  the  petitioner  had 
resigned  and  ceased  to  be  an  officer  or  meml)er 
of  the  defendant  corporation,  and  had  lost  all 
interest  In  its  affairs. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  {{  2373-2375,  2378,  2379,  2381,  2390, 
2401.] 

Appeal  from  Superior  Court,  Provldenc* 
and  Bristol  Counties;  WUlard  B.  Tanner, 
Presiding  Justice. 

Petition  by  John  3.  Richards  fbr  appoint- 
ment of  a  receiver  and  for  the  dissolution  ot 
the  Cavalry  Club  of  Rhode  Island.  From  a 
decree  dismissing  the  petition,  complainant 
appeals.    Afilrmed  and  cause  remanded. 

John  P.  Beagan,  of  Providence,  for  appel- 
lant Boss  &  Barnefield,  of  Providence,  for 
appellee. 

PER  CURIAM.  This  is  a  petiUon  for  th* 
appointment  of  a  receiver  and  for  the  dis- 
solution of  the  defendant  corporation.  The 
petitioner  claims  that  he  is  entitled  to  re- 
lief under  the  provisions  of  chapter  213,  Gen. 
Laws  1909.  Said  petition  was  heard  by  a 
justice  of  the  superior  court  and  a  decree  was 
entered  dismissing  the  petition.  From  said 
decree  the  complainant  has  appealed  to  tills 
court 

It  appears  that  the  defendant  corporation 
was  organized  and  incorporated  under  the 
provisions  of  chapter  212,  Gen.  Laws  1909, 
class  III,  "Literary  and  Scientific  Corpora- 
tions and  Miscellaneous  Corporations."  The 
defendant's  by-laws  provide  that  the  member- 
ship shall  consist  of  two  classes,  active  and 
associate.  Sections  2  and  8  of  said  by-laws 
are  as  follows: 

"Sec.  2.  The  active  membership  shall  be  made 
np  of  officers  of  the  cavalry  organizations  of  the 
National  Guard  of  Rhode  Island. 

"Sec.  3.  The  associate  membership  shall  be 
made  up  of  those  persons  holding  membership 
certificates  and  their  membership  shall  termi- 
nate upon  surrender  of  the  certificate.  An  as- 
sociate mpmber  shall  not  be  eligible  for  election 
to  any  office  or  any  permanent  committee,  and 
shall  have  no  vote  m  the  managemeut  of  the  or- 
ganization, but  may,  however,  serve  on  tempo- 
rary committees." 

At  the  time  of  the  organization  of  the  de- 
fendant corporation  the  complainant  was  an 
officer  in  one  of  the  cavalry  organizations  of 
the  National  Guard  of  Rhode  Island,  and 
was  one  of  the  incorporators  of  the  defend- 
ant It  is  as  an  active  member  that  the  com- 
plainant has  brought  this  petition. 

The  primary  purpose  of  the  corporation 
was  to  procure  horses  for  use  of  the  cavalry 
of  the  National  Guard  of  Rhode  Island  at 
drill.  It  further  appears  in  the  certificate  of 
incorporation  that  it  was  formed  for  "the 
purposes  of  advocating  and  promoting  sudi 
a  confederation  of  the  National  Guard 
Cavalry  of  the  New  England  states  as  will  In- 
crease its  general  ef&ciency  as  an  Incident  of 
national  defense,  and  especially  to  develop 
and  assist  the  cavalry  of  Rhode  Island  by 


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ROWE  V.  BORSKR  OITT  GARNETTINO  00. 


22S 


the  MieonniKement  and  promotlan  of  hone- 
niaottiip."  In  carrying  out  its  purpoges, 
after  organization  the  corporation  purchased 
a  number  of  horses,  and  the  caralry  organiza- 
tions of  the  National  Guard  of  Rhode  Island 
continued  to  use  said  horses  until  said  cavaU 
ry  organizations  were  called  into  national 
service  and  ordered  to  the  Mexican  border  In 
1916.  Said  horses  were  then  sold  to  the 
United  iStates  government  The  petitioner 
claims  that  the  United  States  government  has 
now  talien  over  "the  matter-  of  tarnishing 
horses  to  the  troops  for  drill  purposes,  there 
is  no  longer  necessity  or  occasion  for  the 
esistence  of  the  Cavaliy  Club,  and  all  the 
purposes  for  which  It  was  Incorporated  have 
been  accomplished."  He  further  alleges  that 
the  Cavalry  Club  has  many  outstanding  un- 
paid bills ;  that  It  has  not  met  regularly  in 
accordance  with  its  by-laws ;  that  the  treas- 
urer of  the  organization  has  been  permitted 
to  exceed  his  authority.  The  complainant 
brought  this  petlti<Mi  on  December  13,  1916. 
After  filing  said  petition  and  before  the 
time  of  trial  in  the  superior  court  the  com- 
plainant resigned  as  an  officer  of  the  cavalry 
organizations  of  the  Nattonal  Guard  of  Rhode 
Island. 

We  find  no  merit,  in  the  reasons  of  appeal 
upon  which  the  case  is  before  ua.  The  find- 
ings of  fact  made  by  the  justice  of  the  su- 
perior court  that  the  conduct  of  the  business 
of  the  defendant  does  not  warrant  a  dissolu- 
tion is  Justified.  The  purposes  for  which  the 
corporation  was  organized  may  still  be  pur- 
sued. It  appears  that  the  present  active 
members  of  the  assoeiatiou  do  not  wish  to 
have  the  corporation  dissolved. 

(11  Proceedings  for  the  dissolution  of  a 
corporation  because  It  has  ceased  to  act  un- 
der its  franchise  are  not  properly  instituted 
by  a  private  individual,  but  must  be  brought 
bgr  the  state. 

[2]  The  section  of  the  statute  whidi  the  pe- 
titioner Invokes  as  a  basis  for  his  petition  is 
section  27,  c.  213,  Gen.  Laws  1909,  as  amend- 
ed by  chapter  780  of  the  Public  Lews  (1911- 
12).  That  portion  of  said  section  which  re- 
lates to  the  matter  under  consideration  is  as 
follows: 

"Sec.  27.  Whenever  any  oorporatlon  incorpo- 
rated under  the  laws  of  this  state,  except  a 
bank,  savings  bank,  or  trust  company  incorpo- 
rated under  the  laws  of  this  state,  is  insidvent, 
or  whenever  by  reason  of  fraud,  negUgmce,  mis- 
conduct, or  continued  absence  from  the  state  of 
the  executive  officers  of  any  such  corporation, 
or  whenever  by  reason  of  the  neglect,  refusal  or 
omisnoQ  by  the  stockholders  of  any  such  cor- 
poration for  an  unreasonable  time  to  bold  meet- 
ings Or  attend  to  its  concerns,  the  estate  and  ef- 
fects of  such  corporation  are  being  misapplied 
or  are  in  danger  of  being  wasted  or  lost,  or 
whenever  any  such  corporation  has  done  or 
omitted  to  do  any  act,  which  act  or  omission  is 
ground  for  the  forfeiture  of  its  charter,  or  when- 
ever a  majority  in  interest  of  the  members  of 
such  corporation  having  a  capital  stock,  or  a 
majority  of  the  members  of  such  corporation 
having  no  capital  stock,  shall  have  voted  to  dis- 
solve said  corporation  and  to  wind  up  its  affairs, 


the  superior  court  may,  upon  the  petition  of  any 
stockholder  or  creditor  of  such  corporation,  and 
upon  such  reasonable  notice  as  the  court  may 
prescribe,  decree  a  dissolution  of  such  corpora- 
tion and  appoint  a  receiver  of  its  estate  and  ef- 
fects, or  may  decree  such  dissolution  without  ap- 
pointing a  receiver,  or  may  appoint  such  re- 
ceiver without  decreeing  a  dissolution." 

The  defendant  corporation  does  not  have 
capital  stock,  and  a  majority  of  the  members 
have  not  voted  to  dissolve  the  defendant  and 
to  wind  up  its  affairs.  It  therefore  clearly 
appears  that  the  petitioner  has  no  standing 
In  court  under  the  provisions  of  said  section. 
Furthermore,  the  petitioner,  when  he  resign- 
ed and  ceased  to  be  an  officer  in  any  of  the 
cavalry  organizations  of  the  National  Guard 
of  Rhode  Island,  was  no  longer  a  member  of 
the  defendant  corporation,  and  lost  all  legal 
Interest  in  the  affairs  of  the  corporation. 

The  decree  of  the  superior  court  is  affirm- 
ed ;  the  cause  is  remanded  to  that  court  for 
further  proceedings. 


(40  R.  I.  3U) 

ROWE  V.   BORDER  CITY   GARNETTING 
CO.  et  al.  (No.  275.) 

(Supreme  Court  of  Rhode  Island.    June  27, 
1917.) 

1.  COBPORATtORS     «=>130    —     ST0CKnoI.DEB'S 

Right  to  Reqistbation  of  Shabjcs. 
When  a  bona  fide  owner  of  stock  presents 
his  certificate  to  the  company  and  demands  a 
registration  of  his  shares,  the  corporation  is 
legally  bound  to  recognize  his  ownership,  and 
to  make  due  transfer  of  such  stook,  in  his  name, 
on  its  books. 

[Kd.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  Si  488,  489.] 

2.  Mandauus     ®=3l26  —  REaiSTBATioN     or 
Stock. 

In  view  of  financial  condition  of  corporation, 
mandamus  was  proper  to  compel  transfer  ol 
stock  on  corporation  s  books  to  a  bona  fide  pur- 
chaser, since,  under  the  circumstances,  petition- 
er would  not  otherwise  have  an  adequate  rem- 
edy. 

[Ed.  Notei— For  other  cases,  see  Mandamus, 
Cent  Dig.  t  261.] 

3.  Mandamus     ^s»10  —  Rkoistbaxioit     or 
Stock— Disputed  Ownebship. 

As  to  shares  of  stock  regarding  which  peti- 
tioner's title  was  questionable,  manrlamuB  to 
compel  registration  was  not  permissible,  and 
petitioner  must  resort  to  some  other  remedy. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
(knt.  Dig.  {  37.] 

4.  Masdai^s    $=33(7)  —  Reqistbation    or 
Stock. 

Where  court  deems  remedy  at  law  adequate, 
it  may,  in  its  discretion,  refuse  to  allow  manda- 
mus to  compel  registration  of  stock  on  corpora- 
tion's books,  although  petitioner's  title  is  undis- 
puted. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Ont  Dig.  S  34.] 

5.  Mandamus   9=92  —  (^onbtztutionai,  and 
Statutobt  Pbovisionb. 

Article  XII  of  Amendments  to  Constitution, 
providing  that  the  Supreme  Court  "shall  have 
power  to  issue  prerogative  writs,  and  shall  also 
have  such  other  jurisdiction  as  may,  frran  time 
to  time,  be  prescribed  by  law,"  and  Gen.  I^aws 
10G9,  c.  2T2,  §  2,  providing  that  the  Supremt 


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101  ATLA.NTIC  REPORTER 


(B.I. 


Court  "may  issae  writs  of  habeas  corpus,  of  er- 
ror, certiorari,  mandamus,  prohibition,  quo  war- 
ranto, and  all  other  extraordinary  prerogative 
writs  and  processes  necessary  for  the  further- 
ance of  justice  and  the  due  administration  of 
the  law,'  were  not  intended  to  alter  essential 
character  of  writs  of  mandamus  and  other  pre- 
rogative writs  named  therein. 

[Ed.  Note.— For  other  cases,  see  Mandamna, 
Cent  Dig.  S  4.] 

6.  Mandaxtjb  <&=33(2)— Scopx  or  Rkmedt. 

Gen.  Laws  1900,  c.  272,  {  2,  authorizes  the 
use  of  mandamus  where  circumstances  of  the 
case  show  that  petitioner  has  no  other  adequate 
IwaX  remedy,  although  such  use  of  the  writ 
may  be  contrary  to  practice  established  by  com- 
mon law. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  {  8.] 

7.  Mandamds     e=3l4(l)  —  Dkmand  —  Stock- 
holder's  Inspection  oi'  Books. 

Where  demand  for  inspection  of  corpora- 
tion's boolcs  by  stockholder  and  refusal  are  not 
shown,  mandamus  will  not  lie  to  enforce  sudi 
right. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent  Dig.  {  44.] 

Petition  for  mandamus  by  Leon  R.  Rowe 
against  the  Border  City  Garnettlng  Company 
and  others.  Petition  granted  In  part  and  de- 
nied In  part 

Walling  &  Walling,  of  Providence,  tor  pe- 
titioner. John  R.  Hlggins,  of  Woonsocket, 
for  respondents. 

BAKER,  J.  This  is  a  petition  for  a 
writ  of  mandamns  against  the  Border  City 
Garnettlng  Company,  a  corporation  organiz- 
ed under  tbe  laws  of  this  state,  and  Allan 
Mcintosh,  Ulrlc  A.  Poulln  and  Hector  L. 
Poulin,  respectively  president,  treasurer,  and 
secretary  of  said  corporation,  ordering  it  and 
tbem  to  transfer  upon  tbe  books  of  said  cor- 
poration 46  Shares  of  the  stock  of  said  cor- 
poration now  standing  in  tbe  name  of  the  de- 
fendant Allan  Mcintosh,  and  represented  by 
three  certificates,  one  for  thirty  shares  and 
two  tor  8  shares  each,  to  tbe  name  of  tbe 
petitioner  and  to  issue  new  certificates  there- 
for to  your  petitioner.  A  citation  was  is- 
sued, and  duly  served  on  the  corporation  and 
the  other  respondents.  There  was  a  general 
entry  of  appearance  for  respondents  by  an 
attorney,  although  it  was  apparent  at  the 
bearing  that  be  did  not  represent  Allan  Mc- 
intosh, who  did  not  appear,  and  was,  we  as- 
sume, tn  fact  unrepresented.  Tbe  counsel 
for  tbe  respondents  In  open  court  admitted 
that  tbe  title  of  tbe  petitioner  to  the  SO 
shares  r^resented  by  tbe  certificate  for  that 
amount  was  a  clear  one,  and  that  he  was  en- 
titled to  have  them  transferred  upon  the 
boolss  of  the  corporation  and  a  certificate 
therefor  issued  to  him,  and  the  evidence  of- 
fered also  shows  this  to  be  tbe  fact  But  the 
petitioner's  title  to  tbe  16  shares  represented 
by  tbe  two  certificates  of  8  shares  each  was 
disputed,  tbe  two  respondents  Poulln  claim,- 
ing  that  tbe  respondent  Mclntosb  bad  receiv- 
ed these  two  certificates  in  trust,  and  bad 


transferred  tbem  in  breach  of  that  trust  to 
tbe  petitioner,  claiming  also  that  the  petition- 
er at  the  time  of  the  transfer  bad  knowledge 
of  these  alleged  facts. 

The  respondents  urge  tbat  mandamus  is 
not  tbe  proper  proceeding  to  compel  a  trans- 
fer of  corporate  stock  upon  tbe  books  of  a 
private  corporation  and  the  Issuance  of  a 
new  certificate  on  the  ground  that  the  peti- 
tioner tias  an  adequate  remedy  in  an  action 
at  law  for  tbe  value  of  the  stocks  claimed. 
Tbe  text-book  writers  and  commentators  as 
a  rule  concede  that  tbe  weight  of  authority 
supports  this  dalm.  For  example,  while 
Cook  on  Corporations  (1913  Ed.)  in  section 
380,  vol.  II,  says  tbat  the  remedies  of  a 
transferee  for  refusal  of  the  corporation  to 
allow  the  registry  of  a  transfer  of  stock  are 
three,  namely,  be  may  apply  in  a  court  of 
law  for  a  mandamus  to  compel  the  transfer, 
or  to  a  court  of  equity  to  accomplish  tbe 
same  purpose,  or  may  bring  an  action  at  law 
against  the  conwration  tor  damages  for  con- 
version of  his  stock,  in  section  390,  in  dis- 
cussing tbe  remedy  by  mandamus,  says: 

"The  authorities  are  in  irreconcilable  conflict 
on  the  question  whether  a  mandamus  lies  to 
compel  a  corporation  to  allow  a  registry  on 
its  books  of  a  transfer  of  stock.  The  weight  of 
authority  holds  very  clearly  that  mandamus  will 
not  lie.  This  rule  is  based  largely  on  the  his- 
torical origin  of  the  writ  of  mandamus,  and  on 
the  theory  that  the  stock  of  a  private  corpora- 
tion has  no  peculiar  value,  and  may  be  readily 
obtained  in  open  market  or  fully  compensated 
for  in  damages.  There  is  a  strong  line  of  deci- 
sions, however,  which  holds  that  a  mandamus 
does  lie  to  compel  a  corporation  to  allow  a  regis- 
try of  a  transfer  of  stock,  particularly  where  the 
corporation  has  no  good  and  sufficient  reason  for 
refusing  the  registry" 

-rand  be  dtes  with  great  fullness  the  cases 
supportive  of  the  two  views.  See,  also,  as 
to  weight  of  authority  on  this  point  26  Cyc. 
347;  7  R.  O.  L.  271 ;  Thompson  on  Corpora- 
tions (2d  Ed.)  vol.  IV,  i  4439;  19  Am.  &  Eng. 
Ency.  of  Law,  881 ;  Morawetz  on  Private  Cor- 
porations, vol.  I,  i  215;  Bailey  on  Habeas 
Corpus  and  Special  Remedies  (1913)  vol.  II,  § 
303.    The  latter  writer  says: 

"The  courts  of  this  country  quite  generally 
at  an  early  day,  when  the  remedy  by  mandamus 
was  much  more  restricted  in  its  nature  and 
purpose  than  it  is  at  present,  concluded  that  the 
writ  would  not  lie  to  compel  the  proper  officer 
to  transfer  stock  of  a  shareholder  upon  the 
books  of  the  company.  Since  that  time,  r«dy- 
ing  upon  the  precedents  establlBhed,  many  ot 
them,  and  others  where  the  question  became  one 
of  first  impression,  have  adhered  to  the  original 
holding.  The  reason  upon  which  their  conclu- 
sion was  based  is  that  the  ^areholder  had  an 
adequate  remedy  at  law  against  the  corporatirat, 
for  the  value  of  the  stock  claimed." 

After  pointing  out  conditions  under  wbicb 
the  action  at  law  would  not  afford  an  ade- 
quate remedy,  the  author  says: 

"Courts  of  respectable  authority  hold  that 
such  transfer  may  be  compelled  by  mandamus, 
espeoially  where  there  is  no  dispute  with  respect 
to  the  ownership  or  right  of  possession  of  the 
stock.  It  would  seem  that  some  of  the  courts 
do  nut  hold  that  the  writ  will  not  lie  in  all  cases, 
or  that  an  action  for  value  of  the  stock  is  an 


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ROWE  V.  BORDER  CITY  OARNETTING  CO. 


225 


adequate  ranedy.  They  only  ao  hold  when 
the  legal  rifcht  of  the  petitioner  to  the  posses- 
sion of  the  stock  and  to  the  right  of  transfer  is 
oot  clear  and  unquestionable;  and  such  un- 
doubtedly is  the  better  rule  and  best  in  accord 
with  the  principles  which  underlie  the  granting 
of  the  writ,  if  there  be  doubt  as  to  what  his 
legal  right  may  be,  involving  the  necessity  of 
litigation  to  determine  it,  mandamus  ought  to 
be  withheld,  upon  the  well-settled  principle  that 
the  relator  must  show  a  clear  right" 

In  Dennett  t.  Acme  Mfg.  Co.,  106  Me.  476, 
76  ktL  922,  there  was  a  petition  for  manda- 
mus for  a  transfer  of  stock  and  the  issuance 
of  a  new  certificate.  On  page  482  of  106  Me., 
CD  page  925  of  76  Atl.,  tbe  court  says: 

"The  idea  of  the  cases,  denying  mandamus  on 
the  ground  that  an  action  at  law  is  open  to  the 
petitioner,  ia  that  in  such  action  he  could  recov- 
er as  damages  the  market  value  of  the  stock, 
and  would  thereby  be  fully  indemnified.  But  it 
must  be  conceded,  we  think,  that  in  very  many 
cases  that  idea  could  not  be  realized  in  practice. 
Business  of  all  classes  and  kinds  is  now  carried 
on  ander  corporate  organization.  The  capital 
stock  of  some  of  these  corporations  has  some 
known  market  value,  but  that  of  the  greater 
number  of  them,  perhaps,  has  none.  Neverthe- 
less, the  shares  in  the  latter  have  a  substantial 
value  to  the  owners  thereof.  That  value  may 
result  from  business  immediately  profitable, 
from  special  opportunities  and  circumstances  in- 
soring  future  profits,  or  from  the  good  will  of 
a  well-established  business.  It  does  not  there- 
fore seem  reasonable  that  the  owner  of  such 
■hares  is  afforded  adequate  relief,  for  a  denial 
of  his  rights  as  a  stodtholder,  by  an  action  at 
law,  to  be  prosecuted  at  his  own  expense  and 
trouble,  and  for  the  uncertain  recovery  of  some 
trifling  sum  as  damages  in  lien  of  the  rights  and 
benefits  be  would  have  enjoyed  if  the  transfer 
to  whidi  be  was  entitled  had  been  made  to 
him.    •    •    • 

"The  same  reasons  and  objections,  we  think, 
may  be  urged  against  the  suggestion  that  the 
petitioner  has  an  adequate  remedy  in  equity. 
Before  that  remedy  could  be  prosecuted  to  a 
final  decree  imi>ortant  opportunities  to  enhance 
tbe  value  of  the  business  of  the  corporation  may 
have  passed,  and  maladministration  have  wast- 
ed and  dissipated  its  assets.  Such  a  remedy  is 
not  commensurate  with  the  petitioner's  rights. 

"Notwithstanding  the  fact  that  the  weight  of 
aathority  in  other  jurisdictions  appears  to  be 
otherwise,  we  are  nnable  to  assent  to  the  doc- 
trine that  a  bona  fide  share  owner  in  a  private 
corporation,  existing  under  our  statutes,  who 
is  wrongfully  denied  bis  statbtory  right  to 
have  a  certificate  of  his  shares  issued  to  him  by 
the  corporation,  and  a  record  transfer  thereof 
made  on  its  books,  is  afforded  an  adequate  rem- 
edy, a  remedy  commensurate  with  bis  special 
and  peculiar  rights  and  necessities  under  all 
the  circumstances,  by  an  action  at  law  against 
the  corporation  for  tbe  value  of  his  shares,  or 
by  equitable  proceedings  for  a  specific  perform- 
ance. And  we  are  of  opinion  that  such  remedies 
should  not  constitute  a  bar  to  relief  by  manda- 
mus to  compel  such  issue  and  transfer  where  the 
petitioner's  right  is  unquestioned,  and  where  nei- 
ther the  corporation  nor  its  officers  have,  or  pre- 
tend to  have,  any  reason  or  excuse  for  their  re- 
fusal. 

"We  readily  perceive  that  great  injury  would 
often  result  to  a  petitioner  from  a  refusal  of 
mandamus  in  such  case  as  the  one  at  bar,  while, 
on  tbe  other  hand,  we  fail  to  perceive  how  injus- 
tice could  be  done  to  any  one  from  granting  it 
in  such  case,  since  no  reason  is  given  or  sug- 
gested why  the  shares  dioold  not  be  transferred 
as  requested." 

101A.-16 


See  cases  there  cited  and  in  addition  Sbep- 
pard  v.  Rockingham  Power  Co.,  150  N.  C 
770,  781,  64  S.  E.  894. 

[1]  There  was  a  statutory  provision  in 
Mulne  requiring  the  Issuance  of  a  new  cer- 
tificate. But  this  does  not  seem  to  ns  to 
be  material,  as  It  is  generally  recognized 
that: 

"Where  there  is  a  valid  sale  of  stock,  and  where 
a  bona  fide  owner  of  stock  presents  his  certifi- 
cate to  the  company  and  demands  a  registration 
[of  his  shares]  tbe  corporation  is  legally  bound 
[to  recognize  his  ownership  and]  to  make  due 
transfer  of  such  stock,  in  his  name,  on  its 
books."  7  B.  O.  Ia  262. 

[2]  From  the  testimony  offered  In  the  case 
at  bar  as  to  the  financial  condition  of  tbe 
corporation  we  are  of  the  opinion  that  an 
action  at  law,  so  far  as  the  certificate  rep- 
resenting SO  shares  is  concerned,  does  not 
afford  the  petitioner  an  adequate  remedy, 
and  that  mandamus  is  a  permissible  and 
proper  nonedy  for  him  in  tbe  circumstances 
of  this  case.  Although  not  precisely  in  point, 
see,  also,  Portland  Stone  Ware  Co.  y.  Tay- 
lor, 17  R.  I.  33,  19  Atl.  1086;  Cornell  v. 
Barber,  31  B.  I.  358,  378,  76  Atl.  801,  for 
similar  use  of  the  writ ;  also  Norris  v.  Irish 
Land  Co.,  8  £.  &  B.  Reports,  512,  (pinion  of 
Coleridge  on  page  527,  as  to  tendency  to  en- 
large the  remedy  by  mandamus. 

[3]  We  think  the  situation  as  to  the  16 
shares  represented  by  tbe  two  certificates  of 
8  shares  is  a  different  one.  Tbe  title  of  the 
petitioner  to  them  is  questioned.  In  Townes 
V.  Nichols,  73  Me.  615,  there  was  a  petition 
for  mandamus  for  the  issuance  of  a  certifi- 
cate of  stock,  and  the  UUe  of  tbe  stock  was 
In  question.    The  court  said,  on  page  617: 

"All  the  authorities  declare  that  the  remedy 
by  mandamus  cannot  be  resorted  to  in  a  case 
like  this,  unless  tbe  legal  right  of  the  petitioner 
to  tbe  possession  of  the  thing  sought  for  is  clear 
and  unquestionable.  If  there  be  doubt  as  to 
what  his  legal  right  may  be,  involving  the  neces- 
sity of  litigation  to  settle  it,  mandamus  must 
be  withheld.  Mandamus  is  the  right  arm  of 
tbe  law.  Its  principal  ofBce  is,  not  to  inquire 
and  investigate,  but  to  cmnmand  and  execute. 
It  is  not  designed  to  assume  a  part  in  ordinary 
lawsuits  or  equitable  proceedings.  •  *  *  An 
application  of  this  rule  defeats  the  petitioner's 
claim  under  the  present  proceeding.  •  •  •  It 
should  appear  to  be  an  unquestionable  claim." 

See  Bailey  on  Habeas  Corpus,  etc.,  supra, 
I  303 ;  Murray  v.  Stevens,  110  Mass.  95. 

In  onr  opinion,  in  the  circumstances  dis- 
closed in  this  cas&  mandamus  is  not  a  per- 
missible remedy  for  the  petitioner  as  to  the 
shares  represented  by  the  two  certificates  of 
8  shares  each.  He  must  resort  to  some  other 
proceeding  for  relief.  Gook  on  Corporations, 
supra,  in  section  800,  suggests  that  by  a  bill 
in  equity  "not  only  can  a  registry  be  specifl- 
cally  decreed  and  ordered  by  the  court,  but 
the  rights  of  the  corporation  and  of  all  the 
claimants  may  be  fully  and  finally  beard  and 
disposed  of." 
[4]  We  do  not  regard  our  conclusions  in  the 
present  case  as  in  conflict  with  Wilkinson  t. 
Providence  Bank,  3  R.  I.  22.  Referring  to 
mandamus,  the  court  said: 


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101  ATIiANTIC  REPOBTBR 


(R.I. 


"The  law  •  ♦  •  wisely  restricts  its  appli- 
cation as  a  remedy  to  enforce  mere  private 
rights  of  property  to  cases  where  the  applicant 
has  no  adequate  remedy  by  action  in  the  due 
course  of  the  common  law 

— and  after  calling  attention  to  the  fact  that 
tbere  was  a  dispute  as  to  tbe  ownership 
of  the  stock,  said,  "the  present  proceeding 
Is  a  very  Imperfect  mode  of  trying  these 
questions,"  and  held  that  an  action  at  law 
for  damages  for  the  refusal  of  the  bank 
to  transfer  shares  of  Its  stock  was  an  ade- 
quate remedy,  and  left  the  petitioner  to 
the  common-law  remedy  by  action.  We  be- 
lieve the  dedslon  was  sound ;  and,  al- 
though we  might  now  be  disposed  to  place 
more  emphasis  on  the  existence  of  the  dis- 
pute as  to  ownership,  we  do  not  now  mean 
to  Imply  that.  In  the  absence  of  such  dilute, 
the  court  may  not,  In  its  discretion,  refer  a 
petitioner  to  his  remedy  at  law,  If  It  deem 
such  remedy  in  the  circumstances  adequate. 

[6]  It  may  be  noted,  also,  that  Wllldnson 
T.  Providence  Bank,  supra,  was  decided 
under  the  Constitution  and  statutes  in  force 
In  1853  in  strict  accordance  with  the  rules 
of  the  common  law.  Article  XII  of  Amend- 
ments to  the  Constitution,  adopted  November, 
1903,  provides  among  other  things,  that  the 
Supreme  Court  "shall  have  power  to  issue 
prerogative  writs,  and  shall  also  have  such 
other  Jurisdiction  as  may,  from  time  to  time, 
be  prescribed  by  law."  Section  2,  c.  272, 
of  the  General  Laws  provides  that  the 
Supreme  Court  "may  issue  writs  of  habeas 
corpus,  or  error,  certiorari,  mandamus,  i«o- 
hibitlon,  quo  warranto,  and  all  otiier  extraor- 
dinary and  prerogative  writs  and  processes 
necessary  for  the  furtherance  of  Justice  and 
the  due  administration,  of  the  law."  It  la 
not  to  be  presumed,  wq  think,  that  this 
amendment  and  this  statute  are  intended  to 
alter  the  essential  character  of  these  pre- 
rogative writs. 

[1]  It  does  not  seem,  however,  too  much  to 
claim  as  to  the  matter  of  the  proper  use  of 
process,  say  of  mandamus,  that,  if  tbe  cir- 
cumstances of  tbe  case  show,  in  the  Judgment 
of  the  court,  that  a  petitioner  has  no  other 
adequate  legal  remedy,  and  that  Justice  can 
be  done  only  by  mandamus,  the  statute  does 
in  such  case  authorize  the  use  of  mandamus, 
although  such  use  may  run  counter  to  its  use 
under  the  practice  established  by  the  common 
law. 

[7]  The  petitioner  also  asks  for  a  mandate 
permitting  him  to  Inspect  tbe  books  of  tbe 
corporation.  Tbere  is  no  evidence  of  any 
demand  for  such  Inspection  and  of  its  re- 
fusal, and  this  request  is  denied. 

The  prayer  of  the  petition  is  granted  to 
the  extent  that  a  peremptory  writ  of  manda- 
mus Is  ordered  to  issue  to  the  respondent 
corporation,  commanding  it  by  its  president 
and  treasurer  to  transfer  on  its  books  tbe  30 
shares  of  stock,  represented  by  certificate 
N»).  8,  now  standing  In  the  name  of  Allan  Mc- 


intosh, to  the  name  of  the  iietltloner,  and  to 
issue  to  him  a  new  certificate  for  said  shares, 
upon  the  surrender  to  It  for  cancellation  of 
the  certificate  now  held  by  him.  In  other 
respects  the  petition  is  denied. 


(40  R.  I.  410) 
SLATERSVIIiLI}  FINISHING  CO.  T. 
GBEBNE  et  al..  Assessors  of  Taxes. 

(No.  4905.) 

(Supreme  Court  of  Rhode  Island.     June  27, 
1917.) 

1.  Taxatiow  «=3348  —  Valuation  —  Use  of 
Land. 

Tho  valnation  of  land  for  tlie  purpose  of 
taxation  is  fixed  by  the  elements  of  value  which 
lead  to  the  most  profitable  form  of  improrement, 
though  the  owner  may  not  improve  tne  land  at 
all,  or  may  put  it  to  uses  which  are  less  profit- 
able than  others  for  which  it  is  suited. 

[E}d.    Note.— For  other   cases,   see  Taxation, 
Cent  Dig.  fj  5S1-5S9.] 

2.  Taxation  ®=>34S— Valuation  or  Land— 
Watkb  Powkb. 

That  the  owner  of  land,  formerly  assessed 
at  its  value  as  a  mill  privilege,  erected  a  dam 
below  such  land,  causing  it  to  bo  overflowed, 
thereby  destroying  elements  ot  value  in  it,  did 
not  require  that  it  be  thereafter  valued  at  a  less 
amount,  though  the  water  power  created  by  the 
dam  was  conductd  to  mills  situated  elsewhere 
and  there  applied;  such  circumstance  not  taking 
away  any  elements  of  value  from  the  land, 
where  tho  power  was  created,  though  it  in- 
creased the  value  of  the  mills  receiving  the  pow- 
er, and  could  be  considered  in  the  taxation  of 
such  mills. 

VEd.  Note.— For  other  cases,  see  Taxation, 
Cent.  I>ig.  li  584-689.] 

8.  Taxation  «=>64  —  Valuation  —  WAT«a 

PowEB  —  Watbb  Kioutb  —  "Poweb"  — 

"Wateb." 
Though,  for  the  purpose  of  taxation,  the 
right  to  use  the  water  of  a  stream,  and  the 
water  power  that  arises  from  controlling  the 
flow  of  its  current,  must  be  considered  as  ap- 
purtenant to  and  an  incident  of  some  land,  wa- 
ter power  and  water  rights  are  not  independent- 
ly taxable;  power  being  a  force,  and  water  a 
nontaxable  element. 

[BM.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  |S  148,  149. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Power;   Water.] 

Case  (Certified  from  Superior  Court,  Provi- 
dence and  Bristol  Counties. 

A  petition  by  the  Slatersvllle  Finishing 
Company  against  Albert  S.  Greene  and  oth- 
ers, assessors  of  taxes,  was  certified  from 
the  superior  court  on  agreed  statement  of 
facts.  Decision  for  respondents,  and  case  re- 
mitted, with  directions  to  enter  final  Judg- 
ment 

Barney,  Lee  &  McCanna  and  Walter  H. 
Barney,  all  of  Providence,  for  petitioner. 
Irving  Champlln,  James  Harris,  and  John  J. 
Lace,  all  of  Providence,  for  respondents. 

SWEETIJVND,  J.  This  is  a  petition 
brought  under  the  provisions  of  section  16,  c. 
58,  Gen.  Laws  1909,  for  relief  against  a  tax 
assessed  against  the  petitioner's  ratable  es- 
tate in  the  town  of  BurriUvlile.    The  petition 


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has  been  certified  to  us  upon  an  agreed  state- 
ment of  facts. 

By  said  statement  it  appears  that  on  Au- 
gost  1,  1910,  the  petitioner  duly  brought  in 
before  the  assessors  of  said  town  an  account 
of  its  ratable  estate  in  said  town,  including 
a  parcel  of  land  described  in  said  account  as 
follows: 

"SlatersriUe  Finisbinir  Company,  Slatersville, 
land  lying  southerly  of  the  highway  leading  from 
NasonvUle  to  Slatersville,  bounding  westerly  by 
the  Douglas  pike,  and  by  Inman  road,  so  callea, 
on  the  east,  $500." 

The  assessors  assessed  said  parcel  as  fol- 
lows: 

"Slatersville  Finishing  Company,  SlatersTillo, 
land,  mill  privilege  and  water  rights,  formerly 
the  Inman  mill  privilege,  lying  southerly  of  the 
highway  leading  from  Nasonvflle  to  Slatersville, 
bounding  westerly  by  the  Douglas  pike^nd  by 
Imnan  road,  so  called,  on  the  east,  $S,000." 

The  petitioner  paid  under  protest  so  mndi 
of  said  tax  as  was  assessed  upon  the  valua- 
tion of  said  parcel  in  excess  of  the  valuation 
set  out  In  the  petitioner's  account.  In  said 
agreed  statement  it  appears  that  said  parcel 
was  situated  upon  a  stream  of  water  the 
name  of  which  is  not  given  in  the  statement; 
that  on  said  parcel  was  formerly  located  a 
mill  known  as  the  "Inman  Scythe  Works," 
the  use  of  which  was  discontinued,  and  which 
fell  in  ruins  many  years  ago ;  and  that  there 
was  a  dam,  waterfall,  and  mill  privilege  con- 
nected with  said  land.  The  parcel  was  sold 
in  January,  1860,  by  Ezekiel  Daniels  and  oth- 
ers to  John  F.  and  W.  S.  Slater,  who  are 
the  predecessors  in  title  of  the  petitioner,  the 
SlatersriUe  Finishing  Company.  Either  said 
Slaters,  or  the  "Slatersville  MUls,"  which 
succeeded  them,  erected  or  raised  lower  down 
on  said  stream  at  Slatersville,  in  the  town  of 
North  Smlthfield,  a  dam,  thus  creating  a 
mill  pond  extending  back  over  said  stream 
into  the  town  of  Burriliville,  and  flowing 
out  the  Inman  mill  privilege  and  water 
rights,  so  that  there  is  no  fall  of  water  there 
when  the  Slatersville  dam  is  full.  At  and  be- 
fore the  time  of  the  raising  of  said  dam  and 
the  flowing  of  said  land,  said  land  was  as- 
sessed for  its  value  as  a  mill  privilege,  and  It 
Is  agreed  that  such  value  was  not  less  than 
$5,000.  If  the  elements  of  value  attributed  to 
said  land  by  the  assessors  ought  not  to  have 
been  considered  by  them  in  fixing  the  valua- 
tion at  the  time  of  said  assessment,  It  is 
agreed  that  the  value  of  said  land  for  the 
purposes  of  taxation  was  $500. 

The  petitioner  contends  that  in  this  matter 
the  court  should  adopt  one  or  the  other  of 
two  views,  and  that,  in  accordance  with  ei- 
ther, the  petitioner  should  have  the  relief 
which  it  seeks.  Its  daim  is  that,  by  the  erec- 
tion and  use  of  the  dam  at  Slatersville,  ei- 
ther said  mill  privilege  and  water  rights  in 
BarriUville  have  been  destroyed  as  elements 
of  value  to  be  considered  in  assessing  said 
land  in  BurrllMUe,  or  said  privilege  and  wa- 
ter rights  have  become  a  part  of  and  have 
increased  the  value  of  the  water  rights  ap- 
purtenant to  the  mill  at  Slatersville,  in  the 


town  of  Kortta  Smlthfield,  and  are  only  tax- 
able there. 

In  support  of  its  position  that  said  mill 
privilege  and  water  rights  no  longer  exist  as 
elements  of  value  in  the  parcel  of  land  under 
consideration,  the  petitioner  relies  chiefly  up- 
on language  employed  in  certain  ciises  dealing 
with  claims  for  damages  made  by  the  owners 
of  lands  which  have  been  permanently  sub- 
merged through  the  construction  of  public 
works.  In  some  of  the  cases  cited  there  was 
a  mill  privilege  upon  the  land  flowed;  in 
others,  there  was  not  In  no  case  is  the  ques- 
tion of  taxation  Involved.  In  each  case  the 
Court  was  considering  whether,  because  of 
the  Impairment  or  destruction  of  the  owner's 
beneficial  use  of  the  land  or  mill  privilege, 
he  should  be  entitled  to  compensation  under 
constitutional  requirements  that  just  compen- 
sation shall  be  paid  to  owners  of  property 
taken  for  public  use.  We  vriU  briefly  consid- 
er the  cases  dted  by  the  petitioner  upon  this 
point. 

In  People  t.  Canal  Appraisers,  13  Wend. 
(N.  Y.)  355,  It  appeared  that,  in  the  course  of 
construction  for  the  improvement  of  canal 
and  lock)  navigation,  the  state  of  New  York 
had  built  a  dam  across  the  Hudson  river  at 
Troy.  Thereby  a  waterfall  belonging  to  the 
relator,  situated  on  a  branch  of  the  Mohnwk 
river,  tributary  to  the  Hudson  above  said 
dam,  had  l>een  permanently  overflowed.  In 
these  circumstances  the  court  held  that  there 
had  been  a  "taking"  of  said  waterfall  for 
public  use,  and  the  relator  should  have  com- 
pensation. In  Velte  v.  V.  S.,  76  Wis.  278,  45 
N.  W.  119,  and  in  Pumpelly  v.  Green  Bay 
Co.,  13  Wall.  166,  20  L.  Ed.  557,  the  respec- 
tive plaintiffs  were  seeking  compensation  for 
the  permanent  flowing  of  their  lands  through 
the  erection  of  dams  as  part  of  public  works 
for  the  improvement  of  the  Fox  and  Wis- 
consin rivers.  In  each  case  it  was  held  that 
the  plaintiff's  use  of  bis  land  had  been  de- 
stroyed, and  that  the  flowing  constituted  a 
"taking"  of  the  land  within  the  meaning  of 
the  Constitution.  The  petitioner  cites  Hatch 
V.  Dwight,  17  Mass.  289,  9  Am.  Dec.  145. 
The  decision  in  that  case,  upon  analysis,  does 
not  support  the  view  that,  when  a  mill  privi- 
lege has  been  flowed  out  by  the  raising  of  a 
dam  below  it  on  the  same  stream,  the  mill 
privilege  is  destroyed  as  an  element  of  value 
in  the  land  to  which  it  was  attadied.  The 
court  held  that  the  owner  of  ai  privilege  so 
overflowed  was  entitled  to  an  action  for  his 
damages,  and  approved  an  assessment  of 
damages  amounting  to  yearly  interest  upon 
the  value  of  the  privilege  as  it  was  before 
obstruction.  This  is  by  no  means  an  author- 
ity for  the  contention  that  a  privilege  when 
flowed  out  is  destroyed.  The  case  proceeds 
upon  the  theory  that  the  owner  of  the  privi- 
lege had  been  deprived  of  its  use,  which  use, 
in  a  sense,  had  been  taken  by  the  owner  of 
the  dam  lower  down,  and  for  such  taking  he 
should  iMy  an  annual'  compensation  wXiile 


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101  ATIiANTIC  EEPORTEE 


(R.1. 


the  taking  continued.  It  cannot  with  reason 
be  urged  from  thla  that  the  value  of  the  privi- 
lege as  an  Incident  of  the  land  had  been  de- 
stroyed and  should  be  disregarded  in  negoti- 
atlMi  tor  the  sale  of  the  land,  or  that  the 
assessors  of  Northampton,  where  the  land 
was  situated,  could  not  proijerly  consider  this 
element  in  placing  a  valuation  ui>on  said  land 
for  the  purpose  of  taxatlMi. 

For  the  promotion  of  manufactures,  Legis- 
latures in  most  of  the  states  have  enacted 
so-called  "Mill  Acts,"  giving  to  a  riparian 
proprietor  upon  a  stream,  where  water  power 
may  be  utilized,  the  right  to  increase  the  im- 
pelling force  of  the  current  at  his  land  by 
the  erection  of  a  dam  and  the  setting  back  of 
the  water  of  the  stream  beyond  the  limit  of 
bis  own  land  and  upon  that  of  a  proprietor 
above,  with  provision  for  compensation  in 
damages,  and  with  the  restriction,  generally 
expressed  in  the  act,  that  a  proprietor  can- 
not flow  back  and  obstruct  the  operation  of  a 
mill  privilege  above  which  has  already  been 
established  by  authority  of  law.  This  re- 
striction is  not  expressed  in  the  Rhode  Island 
act  Chapter  148,  Gen.  Laws  1909,  amended 
by  Pub.  Laws  (1011-12),  c.  897.  This  court, 
however,  has  held  that  our  mill  act  should 
receive  a  reasonable  construction,  and  that  it 
does  not  authorize  the  owner  of  an  unoccu- 
pied privilege  to  erect  thereon  a  dam  and 
mill,  and  then  to  flow  out  an  occupied  privi- 
lege above.    Mowry  v.  Sheldon,  2  R.  I.  369. 

The  constitutionality  of  these  mill  acts  haa 
frequently  been  questioned.  Their  constitu- 
tionality has  generally  been  supported,  some- 
times on  the  ground  that  the  flowing  out  of 
the  land  above  was  a  taking  for  public  use 
under  a  delegation  of  the  state's  right  of 
eminent  domain.  Perhaps  the  constitutional- 
ity of  these  acts  is  better  supported  on  the 
ground  that  it  is  within  the  power  of  the 
Legislature  to  regulate  the  manner  in  which 
the  rights  of  riparian  owners  may  be  asserted 
and  enjoyed  with  due  regard  to  the  inter- 
ests of  all  and  to  the  public  good.  Head  t. 
Amoskeag  Mfg.  Co.,  113  U.  S.  9,  6  Sup.  Ct 
441,  28  L.  Ed.  889. 

Whether  It  be  regarded  as  based  on  the 
right  of  eminent  domain  or  as  a  legislative 
regulation  of  the  common  right  of  the  differ- 
ent riparian  proprietors  to  use  the  waters  of 
a  stream,  such  act  does  not  work  the  destruc- 
tion of  the  property  which  may  be  invaded  in 
accordance  with  its  provisions.  The  statute 
contemplates  that  the  property  submerged 
should  remain  as  a  valuable  possession  of  the 
owner,  even  though  he  has  been  deprived  of 
his  unobstructed  enjoyment  Although  the 
owner  may  elect  to  have  his  damages  in 
gross,  the  Rhode  Island  act  provides  for  the 
appraisement  of  the  damages  that  the  owner 
of  land  overflowed  ought  yearly  to  receive 
and  recover  from  the  owner  of  the  dam  be- 
low, his  heirs  and  assigns,  until  five  years  aft- 
er the  dam  shall  be  removed  by  its  owner, 
bis  heirs  and  assigns.    Similar  provisions  are 


contained  in  all  the  acts  of  other  states  which 
we  have  examined.  The  case  of  Quinebaug 
Reservoir  Co.  ▼.  Union,  73  Conn.  294,  47  Atl. 
328,  we  shall  consider  later  in  Its  bearings 
upon  the  other  branch  of  the  petitioner's 
claim.  With  reference  to  the  point  with 
which  we  are  now  dealing,  viz.  as  to  the  taxa- 
ble valuation  of  lands  which  have  been  sub- 
merged to  increase  the  water  power  at  a  mill 
site  lower  down  on  a  stream,  the  court  said 
that  under  the  system  which  makes  all  real 
estate  taxable  by  the  town  in  which  it  is  sit- 
uated, the  court  would  expect  that  either  the 
value  of  the  power  created  by  submerging  the 
land,  or  so  much  of  It  as  equals  that  of  the 
land  if  left  in  Its  natural  condition,  would  be 
made  taxable  in  the  same  way  in  wMCh  the 
land  had  been  before. 

[1]  Many  of  the  questions  which  might 
arise  when  the  land  submerged  and  the  land 
on  which  the  dam  is  located  belong  to  differ- 
ent owners  are  not  presented  in  the  case  at 
bar,  where  the  petitioner  owns  both  parcels 
of  land.    The  value  of  land  depends  upon  Its 
capacity  for  improvement    The  elements  of 
its  value  may  be  its  fertility,  the  minerals 
in  Its  soil,  its  location,  the  configuration  of  its 
surface,  and  many  other  circumstances,  one 
or  more  of  which  may  be  incident  to  a  certain 
tract  of  land.    In  estimating  its  value  for  the 
purpose  of  sale  or  of  taxation,  all  these  inci- 
dents should  be  considered,  and  the  element 
or  elements  of  value  which  lead  to  the  most 
profitable   form   of   improvement   fixes   the 
proper  valuation  of  the  land.    The  owner 
may   not   see   fit  to  improve   his   land   at 
alL    He  may  put  it  to  uses  which  are  much 
less  profitable  than  others  for  which  it  is 
suited.    He  cannot  thereby  lessen  its  valua- 
tion for  the  purpose  of  taxation.    Generally 
the  chief  element  of  value  of  a  parcel  of  land 
on  one  of  the  principal  streets  of  the  city  of 
Providence  is  its  capacity  for  profitable  use 
as  the  location  of  a  building  for  business  pur- 
poses.   The  owner  of  such  parcel  may  permit 
it  to  remain  unimproved,  he  may  use  it  in 
a  manner  which  produces  little  return,  but 
the  assessors  of  taxes  would  be  justified  tn 
assessing  it  upon  a  valuation  based  upon  its 
favorable  location   and  its  desirability   for 
building  purposes.    The  petitioner  in  the  case 
at  bar  is  the  owner  of  a  parcel  of  land  admit> 
tedly  of  the  value  of  $S,000,  in  view  of  Its 
possible  use  as  a  mill  sitOk    If  the  petitioner 
made  no  use  of  this  parcel,  it  could  not  claim 
that  a  valuation  of  $5,000  was  excessive.     la 
the  furtherance  of  its  business,  it  flnds  it 
profitable  to  employ  this  $5,000  tract  of  land 
as  part  of  its  works  to  increase  its  water 
power  at  SlatersviUe.    It  is  fair  to  presume 
that  the  added  water  power  at  SlatersviUe 
which  is  obtained  by  this  use  of  the  land  Is 
of  greater  value  to  the  petitioner  than  any 
return  which  it  would  obtain  from  the  use  of 
the  land  simply  as  a  mill  privilege;  and  the 
capacity  of  the  land  to  produce  water  power 
in  this  way  to  be  used  at  SlatersviUe  Is  an 
element  of  greater  value  than  its  capacity 


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for  producing  water  power  to  be  used  on  the 
land  Itself  In  BurrllMlle.  In  accordance 
vlth  the  suggestion  made  by  the  Connecticat 
oonrt  tn  Quinebang  Reservoir  Co.  v.  Cnlon, 
inpra.  It  might  be  said  that  either  the  full 
Talue  of  the  power  so  obtained  at  Slaters- 
TlUe  through  the  nse  of  this  land,  or  so  much 
of  that  value  as  equals  the  value  of  the  land 
If  It  had  been  left  In  Its  natural  condition, 
should  be  made  taxable  In  the  same  way  tn 
which  the  land  has  been  taxed  before. 

[2]  However  that  may  be,  and  wlthoat  ref- 
erence to  the  value  of  the  added  power  which 
the  use  of  this  land  has  enabled  the  petition- 
er to  obtain  at  SlatersviUe,  the  valuation  of 
the  land  made  by  the  assessors  should  not  be 
disturbed  on  the  ground  that,  because  the  !»• 
tltloner  has  seen  fit  to  employ  this  land  for 
purposes  which  are  either  more  or  less  profit- 
able than  that  for  which  it  surely  Is  suited,  the 
petitioner  has  in  that  way  destroyed  certain 
elements  of  value  which  formerly  pertained 
to  it  It  is  true  that  the  petitioner  has  sub- 
merged the  land  and  concealed  it  from  view, 
but  in  no  proper  sense  can  it  be  said  to  Iiave 
destroyed  any  of  its  elements  of  value. 

In  support  of  the  position  that  said  privi- 
lege and  water  rights  In  Burrillvllle  might 
properly  be  held  to  have  become  a  part  of 
the  water  rights  appurtenant  to  the  mill  at 
Slatersvllle,  and  only  taxable  there,  the  pe- 
titioner relies  mainly  upon  what  it  claims  is 
the  authority  of  Boston  Mfg.  Co.  v.  Newton, 
22  Pick.  (Mass.)  22,  and  Union  Water  Power 
Co.  V.  Auburn,  90  Me.  flO,  37  Atl.  331,  37  L.  R. 
A  651,  60  Am.  St  Rep.  240. 

[3]  In  considering  this  phase  of  the  case, 
we  may  start  with  the  principle,  generally 
conceded,  that  water  power  and  water  rights 
are  not  Independently  taxable.  Power  is  a 
force  and  water  is  an  element  no  more  taxa- 
ble tlian  air.  The  respondent  assessors  did 
not  assume  to  tax  the  mill  privilege  and  wa- 
ter tiower  Independently,  but  as  a  part  of  the 
land.  For  the  pnrpose  of  taxation,  the  right 
to  dse  the  water  of  a  stream  and  the  water 
power  that  arises  from  controlling  the  flow  of 
its  current  must  be  considered  as  appurte- 
nant to  and  an  incident  of  some  land.  When 
the  power  has  been  applied  at  some  place 
other  tliaii  that  at  which  It  was  produced 
there  has  l>een  some  slight  disagreement  In 
the  cases,  a  disagreement,  however,  more  ap- 
parent than  real,  in  regard  to  the  land  to 
which  the  iiower  shall  be  considered  as  appur- 
tenant, whether  to  the  land  which  from  its 
situation  and  configuration  was  able  to  pro- 
duce tlie  power  or  to  the  laud  where  the 
power  is  applied.  It  should  be  observed  that 
the  case  at  bar  does  not  present  the  condition 
of  power  produced  by  a  fall  at  one  place  and 
applied  at  another.  However,  cases  which 
deal  with  that  condition  furnish  as-slstance  in 
the  determination  of  the  petitioner's  claim 
that  some  of  the  elements  of  value  of  the 


Burrillvllle  land  have  been  taken  from  it  and 
annexed  to  the  land  at  Slatersvllle. 

In  Boston  Mfg.  Co.  v.  Newton.  22  Pick. 
(Mass.)  22,  relied  upon  by  the  petitioner,  it  ap- 
pears that  the  plaintiff  was  the  owner  of  two 
miUdams  across  the  Charles  river  where  it 
passed  between  the  towns  of  Waltham  and 
Newton,  one  half  of  each  dam  being  in  New- 
ton, and  the  other  half  in  Waltham,  and  that 
the  water  power  thereby  created  was  applied 
exclusively  to  drive  certain  mills  of  the  plain- 
tiff in  Waltham.  The  plaintifT  was  taxed  in 
Newton,  upon  separate  Items,  for  one-half  of 
the  value  of  each  dam,  for  the  value  of  the 
land  in  Newton  covered  by  the  river,  and  for 
one-half  of  the  water  power.  The  action  was 
brought  solely  for  the  purpose  of  trying  the 
right  of  Newton  to  tax  any  portion  of  the  wa- 
ter power,  all  of  which  was  applied  in  Wal- 
tham. The  court  held  that  water  power  can- 
not be  taxed  independently  of  land,  and  fur- 
ther stated  as  their  opinion  that  the  water 
power  had  been  annexed  to  the  mills  at 
Waltham  and  could  only  be  taxed  there.  The 
plalntlfC  in  that  case  did  not  question  the 
taxation  of  the  land  under  the  tl\er  in  New- 
ton, and  hence  the  court  was  not  called  to 
pass  upon  the  elements  of  value  which  per- 
tained to  that  land,  or  whether  its  value  was 
Increased  by  its  capacity  to  create  water 
power.  The  case  is  of  little  if  any  value 
in  determining  the  matter  before  us. 

In  Water  Power  Co.  v.  Auburn,  90  Me.  60, 
37  AU.  331,  37  L.  R.  A.  651,  60  Am.  St  Rep. 
240,  it  appears  that  the  plaintiff  was  the  own- 
er of  dams  across  the  Androscoggin  river 
where  it  flows  between  Auburn  and  Lewiston. 
None  of  the  power  created  by  these  dams  was 
used  in  Auburn,  but  was  employed  by  the 
plaintiff  in  connection  with  its  mills  at  Lewis- 
ton.  The  assessors  of  taxes  of  Auburn  as- 
sessed a  tax  upon  the  plaintitTs  dam  and 
water  rights.  The  action  was  for  an  abate- 
ment of  said  tax.  The  court  held  that  water 
power,  until  applied,  is  potential,  and  that 
when  applied  to  mills  It  becomes  a  part  of 
the  mill  property  and  is  a  subject  of  taxa- 
tion where  the  mills  are  located.  Prom  this 
opinion  of  a  majority  of  the  court  Mr.  Jus- 
tice Emery  dissented,  and  in  an  able  opinion 
pointed  out  tliat  in  these  clrcnmstancea  wa- 
ter power  as  a  force  was  not  taxable  either 
in  Auburn  or  Lewiston,  but  as  a  waterfall  or 
mill  privilege  it  is  a  parcel  of  land  over  which 
a  stream  of  water  flows  and  falls,  and  la  to 
be  taxed  in  the  town  where  it  Is  situated.  So 
far  as  the  land  is  more  valuable  by  reason  of 
the  stream  and  the  falls,  so  far  those  facts 
are  to  be  considered  in  the  valuation  of  the 
land.  The  owner  of  the  land  owns  not  strict- 
ly the  power  but  the  gateway  through  wliich 
alone  the  power  can  be  captured  and  led  out 
If  the  right  to  use  the  power  has  been  ac- 
quired by  the  owner  of  a  mill  situated  else- 
where, either  personally  or  as  an  incident  of 
the  ownership  of  the  mill,  the  value  ef  such 


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101  ATIiANTIO  RBPORTBE 


(BI. 


right  is  to  be  estimated  In  assessing  tbe  own- 
er or  the  mill. 

"It  stionld  not  be  assumcKl  that  taxing  in 
T^wistoit  the  right  of  the  mill  to  have  water 
power  from  the  dam  in  Auburn  should  reduce 
the  tax  in  Auburn  upon  the  corresponding  right 
of  the  dam  to  receive  compensation  therefor. 
Tbe  water  power  is  not  to  be  taxed  in  either 
town.  The  increased  value  of  the  real  estate 
by  reason  of  the  incident  natural  monopoly,  or 
incident  acquired  rights,  is  to  be  taxed  in  the 
town  in  which  the  real  estate  is  situated." 

The  principles  thus  enunciated  by  Judge 
Emery  have  been  followed  in  later  Maine 
cases.  They  are  In  accordance  with  the  rule 
in  New  Hami>shlre  and  in  the  later  Massa- 
chusetts cases. 

In  Water  Power  t.  Buxton,  98  Me.  29S, 
56  Atl.  914,  the  court  said : 

"The  property  assessed  here  was  a  'mill  privi- 
lege.' It  was  the  land  and  the  dam,  but  it 
was  the  land  and  the  dam  situated  as  they  were, 
with  the  capacity  to  hold  the  water  of  the 
stream  and  create  power.  By  the  terms  of  the 
assessment,  the  power  was  not  assessed,  and  the 
water  was  not  assessed.  The  'privilege'  was  as- 
sessed. Its  value  might  be  greatly  enhanced  by 
the  existence  of  tbe  water  and  the  means  of 
creating  the  power." 

In  Fibre  Co.  v.  Bradley,  99  Me.  263,  69  AtL 
83,  it  appeared  that  the  plaintiff  was  the 
owner  of  the  entire  dam  and  mill  privilege 
of  the  Penobscot  river  as  it  flows  between 
Oldtown  and  Bradley.  The  principal  worlcs 
of  the  plaintiff  were  situated  in  Oldtown,  and 
nearly  all  the  water  power  created  by  the 
dam  was  used  there.  The  plaintiff  urged 
that  such  water  power  should  be  regarded 
as  appurtenant  to  the  mills  in  Oldtown,  "and 
that  the  additional  value  which  the  exist- 
ence of  the  water  power  creates  should  not 
be  assessed  to  the  company  In  Bradley."  The 
court  said: 

"Land  upon  which  a  mill  privilege  exists  is 
taxable,  and  the  value  of  the  land  may  be  great- 
ly enhanced  by  the  fact  that  its  topography  is 
such  that  a  dam  may  be  maintained  across  a 
stream  upon  it,  and  water  power  thereby  creat- 
ed. The  capability  of  the  land  for  such  use,  and 
the  probability  or  certainty,  as  the  case  may 
be,  of  its  use,  certainly  affect  its  value.  •  •  • 
It  is  not.  where  is  the  water  power  crcnted  by 
the  appellant's  dam  used,  but  bow  much  is  its 
property  in  Bradley  worth.  How  much  is  it 
worth  as  it  stands— not  for  farming  merely,  or 
for  bouse  lots,  uor  for  any  other  one  thing,  but 
for  any  and  all  purposes  for  which  it  may  be 
used.  How  much  is  it  worth,  taking  into  ac- 
count that  it  is  part  of  a  valuable  mill  privi- 
lege." 

The  question  now  under  discussion  has 
arisen  in  a  number  of  New  Hampshire  cases, 
and  the  Supreme  Court  of  that  state  lias 
passed  upon  it  in  very  carefully  considered 
opinions.  Those  cases  are  all  opposed  to  the 
contention  of  the  petitioner  that  a  part  of 
the  value  of  the  mill  privilege  In  Burrilivllle 
shall  be  held  to  have  become  appurtenant 
to  the  mill  at  Slatcrsville,  and  to  be  taxable 
solely  in  the  town  of  North  Smithfleld.  Co- 
checo  Co.  V.  Strafford,  51  N.  H.  4.55 ;  Manu- 
facturing Co.  V.  Gilford,  64  N.  H.  337,  10  Atl. 
»49;  Amoskeag  Co.  v.  Concord,  66  N.  H. 
562,  34  AU.  241,  32  L.  R.  A.  621. 


In  Pingree  v.  County  Commissioners,  102 
Mass.  76,  it  appeared  that  the  petitioner  was 
the  bolder  of  land  and  a  dam  in  tbe  town  of 
Wlnsor,  which  was  used  to  form  a  reservoir 
to  hold  back  water  to  be  used  at  mills  in 
the  towns  of  Dalton  and  Pittsfield.  The 
dam,  independent  of  its  use  for  the  purpose 
of  a  reservoir,  was  of  nominal  value,  but 
for  that  poipose  was  of  great  value;  the 
land  while  covered  by  water  was  of  only 
nominal  value  considered  merely  as  land 
without  regard  to  reservoir  purposes.  The 
assessors  of  Wlnsor  taxed  the  dam  and  land 
for  $15,000.  l%e  plaintiff  asked  for  an 
abatement  of  the  tax,  contending  that  the 
said  valuation  and  tax  must  have  been  made 
and  assessed  upon  the  water  power,  none  of 
which  was  applied  in  Wlnsor.  Tbe  court 
pointed  out  that  Boston  Mfg.  Co.  v.  Newton, 
22  Pick.  (Mass.)  22,  apparently  relied  upon 
by  the  plaintiff  as  It  is  by  the  petitioner  In 
the  case  at  bar,  while  It  decided  that  the 
water  power  should  be  regarded  as  incident 
to  the  mills  to  which  it  was  applied,  did  not 
decide  that  the  land  and  the  structures  by 
which  the  water  power  was  created  were  not 
taxable  at  their  value  for  sucb  purposes. 
The  court  in  the  Pingree  Case  sustained  tbe 
valuation  and  tax;  held  that  the  land  and 
the  dam  are  taxable  In  Wlnsor,  and  "that 
the  valuation  should  be  made,  not  subject 
to  the  use  to  which  they  are,  for  the  time,  ap- 
propriated, nor  Independently  of  that  use, 
in  any  sense  which  excludes  it  from  consid- 
eration as  a  means  by  which  their  value  Is 
made  available." 

In  Blackstone  Mfg.  Co.  v.  Blacfcstone,  200 
Mass.  82,  85  N.  E.  8S0,  18  L.  R.  A.  (N.  S.)  755, 
It  appeared  that  a  Rhode  Island  corporation 
erected  in  Massachusetts  a  dam  across  the 
Blackstone  river,  and  constructed  in  con- 
nection therewith,  upon  land  owned  by  It, 
canals,  ponds,  and  trenches  In  the  town  of 
Blackstone,  but,  without  making  any  applica- 
tion of  the  water  power  in  Massachusetts, 
carried  the  water  In  a  trench  with  a  slight 
fall  Into  Rhode  Island,  where  it  was  used  in 
a  powerhouse  to  generate  electricity  with 
which  to  run  a  mill  In  that  state.  The  as- 
sessors of  Blackstone  taxed  such  of  the  pn^>- 
erty  of  the  corporation  as  was  in  that  town, 
including  the  dam,  the  pond,  the  canals,  and 
the  trench,  with  reference  to  its  value  as  a 
means  of  furnishing  power  at  the  corpora- 
tion's power  house  In  Rhode  Island,  and  the 
corporation  petitioned  to  have  the  tax  abat- 
ed. As  part  of  a  very  fully  considered  opin- 
ion, the  court  said: 

"What  is  the  value  of  the  petitioner's  prop- 
erty, having  reference  to  any  and  all  of  the 
uses  to  whirh  it  is  adapted?  •  •  •  If  con- 
ditions in  Rhode  Island  were  disregarded,  the 
value  of  the  property  in  Massachusetts,  includ- 
ing with  the  land  and  water  the  fall  which  the 
land  furnishes,  and  the  dam,  pond,  canals,  and 
other  appurtenances,  would  be  estimated  in  ref- 
erence to  the  most  profitable  uses  to  which  it 
could  be  put,  and  especially  its  use  to  furnish 
power  to  a  mill  in  Massachusetts,  situated  near 
the  line  of  the  state  of  Rhode  Island.     Inas- 


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WHITE  ▼.  TAYIiOB 


231 


much  tm  it  haa  been  Joined  to  the  property  la 
Rhode  Inland,  and  used  with  the  slight  addi- 
tional fall  there  to  produce  a  single  unit  of  wa- 
ter power,  and  inasmuch  as  it  ia  found  that  this 
is  the  most  valuable  use  to  which  it  can  be 
put,  there  is  no  reason  why  its  value  should  not 
be  considered  in  reference  to  the  use  to  which 
it  is  adapted^  and  which  is  now  made  of  it  in 
connection  with  the  property  in  the  other  state." 

In  the  state  of  Connecticut  It  is  provided 
by  statute  that,  when  water  power  is  used 
in  a  different  town  from  that  In  which  It  Is 
created,  such  power  shall  be  listed  for  taza- 
tiOD  only  In  the  town  where  It  is  used.  In 
Quinebaug  Reservoir  Co.  v.  Union,  73  Conn. 
294,  47  AU.  328,  It  appeared  that  the  plain- 
tiff was  the  owner  of  certain  water  rights 
in  the  town  of  Union,  which  the  court  held 
to  be  an  Incorporeal  hereditament  and  real 
estate.  The  plaintiff  employed  these  water 
rights  for  the  purpose  of  accumulating  a 
water  supply  for  use  by  mills  lower  down  on 
the  stream  In  the  state  of  Massachusetts. 
The  court  held  that  the  said  statute  was  to 
be  construed  as  applicable  only  to  towns  In 
Connecticut.  As  the  power  was  used  In 
Massachusetts  the  ordinary  rule  governed, 
and  the  water  privilege  was  properly  taxed 
in  Union. 

"When  water  is  artificially  stored  upon  land 
so  as  to  create  mechanical  i^ower  by  its  fall, 
the  necessary  result  is  to  bring  into  existence 
a  new  element  of  value.  If  the  land  thus  used 
for  storage  purposes  would  be  more  valuable  for 
other  purposes,  the  value  gained  is  less  than  the 
value  lost.  If,  on  the  other  hand,  the  power 
created  has  a  value  exceeding  that  of  the  land 
occupied,  the  taxable  resources  of  the  state  in 
which  that  land  is  situated  are  increased." 

In  our  opinion,  the  better  reason  well  sup- 
ported by  the  weight  of  authority  is  that  land 
should  be  taxed  with  all  its  elements  of  val- 
ue in  the  town  where  the  land  is  situated. 
If  land  upon  a  stream  has  such  topography, 
either  natural  or  artificial,  as  to  give  to  the 
land  the  capacity  to  control  the  current  of 
the  stream,  and  to  pour  out  the  water  of  the 
stream  from  an  elevation,  thus  creating  wa- 
ter power,  these  circumstances  enhance  the 
value  of  that  land  and  furnish  a  basis  for 
taxation.  This  Is  true  whether  that  capacity 
Is  employed  to  create  water  power  to  be 
used  on  that  land  or  upon  other  land  In  an- 
other town  or  another  state,  and  also  even 
in  case  such  capacity  of  the  land  Is  not  em- 
ployed at  all.  If  water  power  thus  created 
is  conducted  to  mills  situated  elsewhere,  and 
there  applied,  IJiat  circumstance  may  rea- 
sonably be  regarded  as  Increasing  the  value 
of  the  mills  receiving  such  power,  and  may 
be  considered  In  the  taxation  of  such  mills; 
but  no  element  of  value  Is  thereby  taken 
from  the  land,  where  the  power  is  created 
and  transferred  and  made  appurtenant  to 
the  mills  where  the  power  Is  used. 

In  our  opinion,  the  petitioner  Is  not  enti- 
tled to  relief  upon  either  of  the  grounds  that 
it  has  urged  before  us.  We  give  decision  in 
favor  of  the  respondents  for  their  costs. 

The  papers  are  ordered  to  be  sent  back  to 


the  superior  court  with  this  decision  certi- 
fied thereon,  and  with  direction  to  enter  final 
Judgment  upon  said  decision. 

(n  Conn.  681) 
WHITE  T.  TATLOn. 

(Supreme  Court  of  Errors  of  Connecticut 
June  1,  1917.) 

1.  Brokebs    «=>88f8>— Acnoir    fob   Cokuib- 

BION — iNSTBUCnoN. 

In  broker's  action  for  loss  of  profit  when 
defendant  saloon  owner  refused  to  sell  to  par- 
chaser  obtained  b^  plaintiff,  charge  heid  to  mace 
burden  on  plaintiff  to  prove  consent  of  defend- 
ant's partner  if  defendant's  offer  to  sell  was  on 
condition  that  partner's  consent  be  obtained. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent. 
Dig.  iS  124,  127.] 

2.  Trial      «=>287(3)   —  Modificatioit      or 
Chaboe. 

Modification  of  charee  Held  a  proper  appli- 
cation of  a  legal  proposition  to  the  evidence. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  §S  668,  672.] 

3.  Trial       e=»25e(13)  —  Instructions  —  Rk- 

QrESTS. 

In  an  action  for  commission  in  nesotiatinir 
sale  of  a  business,  a  charge  on  the  question  of 
damaices  was  not  erroneous  for  failing  to  state 
that  the  Jury  should  add  interest  in  case  of  a 
verdict  for  plaintiff,  plaintiff  not  calling  to  the 
court's  attention  that  he  claimed  interest  should 
be  added  if  the  jury  found  for  him. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  I  640.] 

4.  Brokers  «=385(3)— Actions  fob  Compen- 
sation—Eviden  ce— Relevancy. 

The  fact  that  the  prospective  purchaser  of 
a  saloon,  procured  by  a  broker  endeavoring  to 
negotiate  its  sale,  had  money  enough  to  Duy 
another  saloon  three  months  later,  was  not  it- 
self evidence  in  the  broker's  suit  for  commission 
that  he  had  enough  three  months  previous. 

5.  Partnership  €=>49— Evidencx  of  Exist- 

ENCB— MATERIALrrr. 

In  suit  against  a  member  of  a  firm  operating 
a  saloon  for  commission  for  negotiating  sale  of 
the  saloon,  defendant  contending  that  his  agree- 
ment to  sell  through  the  broker  was  conditioned 
on  his  partner's  consent  the  partnership  agree- 
ment was  admissible  to  prove  the  existence  of 
the  partnership. 

[Ed.  Note. — For  other  cases,  see  Partnership, 
Cent  Dig.  SS  67-74.] 

Appeal  from  District  Court  of  Waterbury ; 
Francis  T.  Reeves,  Judge. 

Ajction  by  Alexander  J.  White  against 
Thomas  J.  Taylor.  From  a  Judgment  for 
defendant,  plalutliT  appeals.    No  error. 

The  plalntlfTs  complaint  alleges  In  sub- 
stance these  facts:  In  September,  1914,  the 
defendant  was  the  owner  of  a  retail  Uquor 
tmsiness  in  the  town  of  Torrlngton.  On  the 
day  named  the  defendant  agreed  with  the 
plaintiff  to  sell  the  business  within  a  reason- 
able time  for  $9,500.  The  defendant  agreed 
to  pay  the  plaintiff  as  compensation  for  his 
service  in  obtaining  a  purchaser  any  sum 
realized  over  $9,500,  and  If  the  plaintiff  fail- 
ed to  procure  a  purchaser  the  plaintiff  would 
make  no  charge  for  his  services.  In  October, 
1917,  the  plaintiff  procured  a  customer  for 


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101  ATLANTIC  EEPORTEE 


(Conn. 


the  business  tor  the  price  of  $10,000.  The 
defendant  refused  to  sell,  and  the  plaintiff 
lost  the  profit  of  $500.  The  defendant's  an- 
swer was  a  general  denial.  The  defendant 
offered  evidence  tending  to  prove  the  follow- 
ing: The  plaintiff  had  been  In  the  real  es- 
tate and  meat  business  In  the  city  of  Wateiv 
bury  for  five  years.  The  plalntltT  is  a  Lithu- 
anian, and  speaks  that  language.  At  the  time 
of  the  alleged  agreement  to  sell,  the  defend- 
ant and  one  Zavakay  were  partners  and  Joint 
owners  of  the  liquor  license  and  saloon  busi- 
ness In  Torrlng^ton.  Before  the  agreement 
was  made,  the  plaintiff  and  several  of  his 
friends,  all  Lithuanians,  visited  Torrington 
for  the  puriwse  of  buying  a  saloon,  and  on  or 
about  the  1st  day  of  September,  1914,  the 
plaintiff  called  upon  the  defendant  and  re- 
quested him  to  sell  the  saloon.  At  that  time 
the  defendant  Informed  the  plaintiff  that  he 
was  willing  to  sell  the  saloon,  providing  bis 
partner  would  agree  to  the  sale.  On  or 
about  S^tember  18th  the  plaintiff  again 
visited  the  saloon,  and  the  defendant  then 
agreed  to  sell  the  saloon  to  the  plaintiff  for 
$9,600  providing  his  partner,  Zavakay,  would 
agree  to  the  sale.  The  plaintiff  had  one  or 
two  Interviews  with  Zavakay,  and  he  would 
not  consent  or  agree  to  the  sale.  The  defend- 
ant understood  from  the  plaintiff  that  he  was 
the  prospective  buyer,  and  he  never  Inform- 
ed the  plaintiff  that  the  price  of  the  business 
was  $10,000.  The  plaintiff  and  one  George 
Mlglan  came  to  the  saloon  later,  and  led  the 
defendant  to  believe  that  Mlglan  intended  to 
purchase  the  business,  and  ttuit  the  plaintiff 
was  acting  as  Miglan's  agent  The  plaintiff 
never  informed  Mlglan  that  the  defendant's 
price  for  the  saloon  was  $9,500,  but  did  in- 
form him  that  the  price  was  $10,000.  On 
October  7,  1014,  Mlglan  offered  to  buy  the 
business.  The  defendant  never  placed  the 
saloon  and  liquor  business  In  the  plaintiff's 
hands  for  sale  as  a  broker,  and  the  plaintiff 
never  informed  the  defendant  that  he  ex- 
pected conpensatlon  In  the  event  of  a  sale. 
The  plaintiff  offered  evidence  tending  to 
prove  the  allegations  of  the  complaint.  The 
cause  was  tried  to  the  Jury,  and  verdict  was 
rendered  for  the  defendant  From  a  Judg- 
ment for  the  defendant  the  plaintiff  appeals, 
assigning  as  error  that  the  court  erred  In  the 
charge  to  the  Jury,  and  his  refusal  to  charge 
as  requested  by  the  plaintiff,  and  assigning  as 
erroneous  rulings  on  evidence. 

Clayton  L.  Klein,  of  Waterbury,  for  appel- 
lant Edward  B.  Reiley,  Jr.,  of  Waterbury, 
for  appellee. 

SHUMWAT,  J.  (after  stating  the  facts  as 
above).  The  material  and  controlling  fact 
In  the  plaintiffs  case  was  the  agreement  set 
out  in  the  complaint  and  as  the  parties  were 
directly  at  Issue  on  this  allegation,  a  verdict 
for  the  defendant  necessarily  Implies  a  find- 
ing of  liils  Issue  for  the  defendant  and  the 


Judgment  most  stand,  unless  there  is  some 
material  error  In  the  charge  to  the  Jury. 

[1]  The  plaintiff  complains  of  this  para- 
graph taken  from  the  charge: 

"If  you  believe  that  the  defendant  told  White 
that  before  the  sale  of  the  business  could  be 
consummated  the  consent  of  the  defendant's 
partner  must  be  obtained,  then  before  the  plain- 
tiff could  recover  from  the  defendant  it  would 
have  to  appear,  by  a  fair  preponderance  of  the 
evidence,  that  the  partner's  consent  had  in  fact 
been  obtained.  Such  consent  would  be  a  part 
of  the  tenns  of  the  sale.  Otherwise  the  consent 
must  have  been  obtained  before  the  terms  of  the 
sale  were  made." 

The  last  sentence  may  not  be  entirely  clear, 
but  its  meaning  in  connection  with  the  con- 
text is  apparent  The  Jury  must  have  under- 
stood that  there  was  no  contract  binding  on 
the  defendant  without  the  partner's  consent 
to  the  sale  in  case  the  Jury  found  the  defend- 
ant's offer  to  sell  was  upon  condition  that 
first  the  consent  of  the  partus  must  be  ob- 
tained, then  the  burden  was  upon  the  plain- 
tiff to  prove  such  consent 

[2]  The  plaintiff  fiurther  complains  that  the 
court  refused  to  charge  as  follows: 

"An  agent  who  obtains  a  purchaser  who  la 
ready,  able  and  willing  to  buy  the  property  upon 
the  terms  and  conditions  prescribed  by  its  owner 
is  entitled  to  his  commission  though  the  sale 
finally  falls  through,  liecause  the  owner  subse- 
quently refuses  to  sell  on  such  terms  and  seeka 
to  impose  additional  conditions." 

An  Inspection  of  the  charge  shows  that 
the  court  used  that  exact  language,  but  add- 
ed these  words: 

"It  la  for.  you  to  say  whether  Miglan  was  a 
person  ready,  willing,  and  able  to  buy  the  retail 
liquor  business  in  question  at  the  terms  pre- 
scribed by  the  defendant  if  you  further  ijelieve 
from  the  evidence  that  the  plaintiff  was  author- 
ized by  the  defendant  to  sell  the  premises  or  the 
business." 

There  was  no  error  In  this.  It  was  a  prop- 
er application  of  a  legal  proposition  to  the 
evidence  In  the  case,  and  the  court  left  It  to 
the  Jury  to  determine  what  In  fact  the  con- 
tract was  between  the  parties. 

[3]  The  plaintiff  took  an  exception  to  the 
charge  upon  the  question  of  damages.  In  that 
the  court  did  not  say  to  the  Jury  that  they 
should  add  interest  In  case  of  a  verdict  for 
the  plaintiff.  As  the  Jury  rendered  a  ver- 
dict for  the  defendant  they  were  not  requir- 
ed to  consider  the  question  of  damages.  The 
plaintiff  did  not  call  to  the  attention  of  the 
court  that  he  claimed  Interest  should  be  add- 
ed In  case  the  Jury  rendered  a  verdict  in  bis 
favor  for  $500,  and  It  does  not  follow  as  a 
matter  of  law  that  In  all  cases  such  as  this 
Interest  should  be  allowed. 

[4]  The  plaintiff  excepted  to  the  ruling  of 
the  court  in  excluding  a  question  to  the  wit- 
ness Mlglan.  There  was  a  question  raised 
as  to  Miglan's  having  enough  money  to  pur- 
chase the  saloon,  and  It  appeared  he  had,  two 
or  three  months  later,  purchased  a  saloon  la 
another  place,  and  he  was  asked  bow  much 
he  paid  for  the  latter  saloon.  This  question 
was  excluded.  The  fact  that  Mlglan  had 
money  enough  to  buy  the  saloon  In  Decembei; 


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Conn.) 


DE  WOLT  T.  BONEE 


233 


was  not  In  Itself  evidence  that  he  had  enough 
Id  the  October  previous,  but  the  case  did 
not  turn  upon  that  fact,  though  it  appeared 
in  evidence  that  Mlglan  had  only  ^,000  In 
October,  1914. 

[S]  The  court  admitted  In  evidence,  over 
the  objection  of  the  plaintiff,  the  partnership 
agreement  between  Taylor  and  Zavakay. 
This  agreement  was  admissible  to  prove  the 
existence  of  the  partnership,  and  it  did  not 
appear  that  It  was  used  for  any  other  pur- 
pose. 

There  Is  no  error.  The  other  Judges  con- 
curred. 

(91  ConsL  711) 

DB  WOLF  V.  BONEE. 

(Supreme  Coart  of  Errors  of  Connecticut 
Jane  14,  1917.) 

1.  IrlzcnANios'  Liens  ®=3281(4)— Evidenck— 

Good  FxrrH. 

_  In  a  suit  to  foreclose  a  mechanic's  hen, 
evidence  k^ld  to  sustain  a  finding  that  defendant 
Iiad  paid  the  entire  contract  price  to  the  con- 
Ixaotor  in  good  faith. 

[Ed.  Note. — For  other  cases,  see  Mechanics' 
Liens,  Cent  Dig.  {  571.] 

2l  Mechanics'  Liens  <»=>149(4)— Cu^iu— Oeb- 

TAINTT. 

A  suit  for  a  lien  cannot  be  maintained  where 
the  lien  claim  does  not  disclose  bow  much  ma- 
terial had  been  fnrnished  for  the  building 
against  which  the  hen  was  claimed ;  another 
bnilding  having  been  erected  at  the  same  time 
on  an  adjacent  lot  by  the  same  contractor,  and 
the  claimant  having  furnished  material  for  both. 
[Ed.  Note. — For  other  cases,  see  Mechanics' 
Liens,  Cent  Dig.  %  259.] 

S.  Mechanics'  Liens  «=>136(2)— Statekent— 
Descbiftion. 
A  statement  for  a  mechanic's  lien  is  fatally 
defective,  where  it  alleges  that  plaintiff  has 
inmished  materials  and  rendered  services  for 
the  coDstmctlon  of  a  certain  Iniilding  owned 
by  a  named  person  and  located  upon  a  described 
lot,  where  it  appears  that  the  material  was  in 
fact  fnrnished  for  two  separate  buildings  owned 
by  different  parties  located  on  separate  tracts 
of  land. 

[Ed.  Note.— For  other  cases,  see  Mechanics' 
Idens,  Cent  Dig.  i  214.] 

Appeal  from  Court  of  Common  Pleas,  New 
London  County ;  Charles  B.  Waller,  Judge. 

Action  by  Asahel  R.  De  Wolf  against 
Joseph  Bonee.  Judgment  for  defendant  and 
plaintiff  appeals.    No  error. 

The  action  Is  to  foreclose  a  mechanic's 
Men  and  for  damages.  On  May  4,  1914,  Alex- 
ander Hepburn,  a  carpenter  and  builder,  sub- 
mitted the  following  proposal  to  the  defend- 
ant: 

"Hartford,  Conn.,  May  4,  1914. 

"Mr.  Bonee:  I  agree  to  furnish  all  material 
and  labor  required  to  erect  and '  complete  the 
carpenter  and  mason  worlc  on  your  cottage  at 
Sound  View,  Conn.,  for  the  snm  of  $1600.00. 

"Alex  Hepburn. 

"This  estimate  includes  painting  two  coats 
outside  and  inside  for  the  first  and  second  story. 

"Alex  Hepburn." 

Upon  the  same  day  the  defendant  accepted 
Hepburn's  written  proposal.    This  acceptance 


and  proposal  constituted  the  entire  agree- 
ment as  t)etween  the  parties.  No  time  was 
fixed  upon  f<H:  the  payment  of  the  contract 
price  by  the  parties.  When  this  agreement 
between  Hepburn  and  the  defendant  was 
made,  James  D'Atro,  a  relative  of  the  de- 
fendant, owned  a  lot  of  land  adjoining  the 
defendant's  lot  at  Sound  View.  Shortly 
thereafter,  D'Atro  requested  Hepburn  to 
build  a  cottage  on  his  lot  similar  In  all  re- 
spects to  that  which  Hepburn  had  agreed  to 
build  for  the  defendant.  During  the  con- 
struction of  the  D'Atro  cottage,  the  plans 
were  changed  so  that  his  contract  price  was 
$1,800.  These  contracts  entered  Into  by  the 
defendant  and  D'Atro  were  entirely  inde- 
pendent of  and  had  no  connection  with  each 
other.  After  making  this  contract,  Hepburn 
contracted  with  the  plaintiff  for  certain 
building  materials  which  were  to  l>e  d^v- 
ered  by  the  plaintiff  at  Sound  View,  and 
which  were  used  In  the  construction  of  the 
cottages  for  the  defendant  and  D'Atro.  Be- 
tween May  11,  1914,  and  the  22d  day  of  June, 
1914,  the  plaintiff  furnished  and  delivered  to 
I  Hepburn,  on  the  premises  of  the  defendant 
and  D'Atro  at  Sound  View,  building  materi- 
als for  which  Hepburn  agreed  to  pay  the 
,  plaintiff  $1,928.44.  No  payment  on  this  snm 
I  was  made  by  Hepburn  until  July  17,  1914. 
Hepburn  completed  the  defendant's  cottage 
I  on  July  6,  1914.  Prior  to  this  time,  the  de- 
\  fendant  had  paid  to  Hepburn  on  account  of 
his  contract  $1,300,  $800  of  which  was  paid 
on  June  20,  1914,  and  $500  of  which  was  paid 
on  some  date  subsequent  to  June  20,  1914. 
Both  of  these  payments  were  made  before 
the  defendant's  cottage  was  completed.  The 
balance  of  $300  due  on  the  defendant's  con- 
tract was  paid  by  blm  to  Hepburn  on  July 
17,  1914.  The  defendant  had  no  knowledge 
or  information  that  the  plaintiff  was  fur- 
nishing materials  for  the  construction  of  his 
cottage  until  the  6th  day  of  August,  1914,  and 
all  the  payments  described  in  the  foregoing 
paragraph  were  made  by  the  defendant  with- 
out notice  of  any  kind  to  the  plaintiff.  Prior 
to  the  6th  day  of  August,  1914,  the  defend- 
ant paid  Hepburn  In  good  faith  the  sum  of 
$1,600,  the  full  contract  price  for  the  de- 
fendant's cottage.  On  July  17, 1914,  Hepburn 
paid  to  the  plaintiff  the  sum  of  $1,000,  for 
which  amount  credit  was  given  by  the  plain- 
tiff to  Hepburn  on  his  account  for  materials 
furnished  which  were  used  by  H^bum  in 
the  construction  of  the  defendant's  cottage 
and  the  cottage  of  James  D'Atro,  and  there 
then  remained  due  on  account  thereof  to 
the  plaintiff  the  sum  of  $880.  On  the  22d 
day  of  August,  1914,  the  plaintiff  gave  the 
defendant  written  notice  of  his  intention  to 
claim  a  lien  for  the  sum  of  $880.  This  sum 
represented  the  total  balance  due  from  Hep- 
bum  to  the  plaintiff  for  materials  and  serv- 
ices furnished  for  the  construction  of  the 
cottage  of  the  defendant  and  for  the  cottage 
of  D'Atro.    On  August  22,  1914,  at  the  time 


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234 


101  ATLANTIC  BEPOBTEB 


(Conn. 


the  plaintiff  gave  the  defendant  written  no- 
tice of  his  Intention  to  claim  a  lien,  there 
was  nothing  due  from  the  defendant  to  Hep- 
bum.  The  certlflcate  of  lien  filed  by  the 
plaintiff  against  the  premises  of  the  defend- 
ant states  that  the  value  of  the  materials  and 
services  furnished  for  the  construction  of 
the  defendant's  cottage  amounts  to  the  sum 
of  $880.  It  did  not  appear  In  evidence  as  to 
Just  what  materials  were  used  In  the  con- 
struction of  the  defendant's  cottage,  other 
than  that  the  plaintiff  furnished  materials 
to  the  value  of  $1,938.44,  used  in  the  con- 
struction of  both  the  defendant's  and  VAt- 
ro's  cottages,  and  that  materials  were  fur- 
nished to  the  value  at  least  of  $880,  which 
were  used  In  the  construction  of  the  defend- 
ant's cottage. 

C.  Hadlal  Hull,  of  New  London,  for  ap- 
pellant. Edward  W.  Broder  and  John  Lw 
Bonee,  both  of  Hartford,  for  appellee. 

RORABACK,  J.  (after  stating  the  facts  as 
above).  [1]  There  are  numerous  exceptions 
to  the  finding  and  to  the  refusal  of  the  trial 
court  to  find  certain  matters  which  the  ap- 
pellant claims  were  established  by  the  evi- 
dence ;  but  one  of  these  merits  consideration. 
This  exception  relates  to  the  foundation  of 
the  plaintiff's  cause  of  action.  In  this  con- 
nection, it  appears  that  the  plaintiff  con- 
tends that  the  court  below  erred  in  holding, 
from  the  evidence,  that  the  defendant  in  good 
faith  paid  the  full  contract  price  for  the 
materials  used  In  the  construction  of  his  cot- 
tage t>efore  he  had  any  knowledge  or  Informa- 
tion tliat  the  plaintiff  was  furnishing  ma- 
terials for  his  building.  The  plaintiff  in- 
sists that  this  conclusion  is  not  Justified  by 
the  evidence  which  is  before  us,  and  we  are 
asked  to  correct  the  finding  so  that  It  will  ex- 
press an  opposite  conclusion.  An  examina- 
tion of  the  record  discloses  that  the  evidence 
upon  this  branch  of  the  case  was  conflicting, 
and  that  the  weight  of  It  tended  to  sustain 
the  defendant's  contention  that  the  payments 
made  to  Hepburn,  the  contractor,  were  made 
in  good  faith.  The  proof  relied  upon  by  the 
plaintiff  to  show  that  the  payments  made  by 
the  defendant  to  Hepburn  were  not  made  In 
good  faith  was  that  the  defendant  had  a  gen- 
eral knowledge  that  some  one  besides  Hep- 
burn was  furnishing  materials  for  the  con- 
struction of  his  building.  This  was  not 
enough. 

"Everybody  who  contracts  (or  a  building  must 
know  in  a  general  way  that  the  contractor  is 
not  doing  the  work  with  his  own  hands,  nor,  as 
a  rule,  with  his  own  stock  of  materials.  The 
statute,  however,  contemplates  a  degree  of 
knowledge  sufficient  to  give  written  notice  to 
each  person  who  has  furnished  materials  or 
rendered  services,  and  that  must  involve  a 
knowledge  o(  the  nanies  of  such  persons  and 
<if  their  relaciou  to  the  work.  Tlie  plaia  im- 
plicntioD  of  tlic  statute  is  that  only  persons  so 
Itnonn  are  entitled  to  notice.  Ilubliell,  Hull  & 
liaudall  Co.  v.  Pentecost,  80  Conn.  208  [03  Atl. 
072]." 


The  record  discloses  that  there  was  evi- 
dence from  which  tlie  court  could  have  rea- 
sonably reached  a  conclusion  favorable  to  the 
defendant's  contention  upon  the  Question  of 
good  faith.  Therefore  the  motion  to  correct 
is  denied. 

[2]  There  Is  another  serious  oibjectlon  to 
the  validity  of  the  plalntifrs  claim  against 
the  defendant  A  careful  examination  of  the 
record  discloses  that  the  amount  of  his  claim 
cannot  be  ascertained.  It  appears  that  the 
plaintiff  did  not  take  the  necessary  steps  for 
laying  the  foimdation  of  a  claim  for  a  lien 
against  the  defendant's  property,  as  be  kept 
no  separate  account  of  the  materials  furnish- 
ed by  him  which  were  used  in  the  construc- 
tion of  the  Bonee  cottage.  The  record  dis- 
closes that  the  materials  for  both  cottages 
wera  sold  to  Hepburn  for  a  round  sum  and 
under  one  contract  These  materials  were 
delivered  to  Hepburn  and  used  by  him  In  the 
construction  of  both  cottages.  There  Is  noth- 
ing to  indicate  how  much  was  used  In  the 
construction  of  either  cottage  There  is  noth- 
ing to  show  that  the  amount  now  claimed  to 
have  been  delivered  for  the  Bonee  cottage 
was  In  fact  used  for  any  sudi  purpose.  The 
plaintiff's  claim  does  not  meet  the  reaoire- 
ments  of  our  statute,  in  that  it  does  not  ap- 
pear how  much  was  in  fact  used  in  the  con- 
struction of  the  defendant's  building. 

In  the  case  of  Larklns  v.  Blakeman,  42 
Ck>nn.  203,  this  court  stated: 

"The  materials  were  not  charged  in  a  separate 
account,  but  in  a  general  account,  including 
cliarges  for  materials  furnished  for  other  build- 
ings. In  respect  to  that,  however,  perhaps  the 
finding  shows  with  reasonable  certainty  that  the 
amount  claimed  was  actually  expended  in  the 
two  houses.  The  value  of  the  materials  fur- 
nished for  each  house  does  not  appear.  The  ag- 
gregate value  of  the  materials  for  th«  two 
houses  is  stated,  a  single  lien  is  claimed  covering 
both  houses  and  the  Tots  on  which  they  stand, 
and  one  certificate  only  is  filed.  The  record 
therefore  does  not  show,  and  it  is  impossible 
now  to  ascertain,  the  amount  furnished  for  emch 
house.    This  is  a  fatal  objection." 

The  Larkins  Case  was  one  In  which  ma- 
terials were  furnished,  under  separate  con- 
tracts, for  two  houses  that  were  being  con- 
structed by  the  same  builder  upon  adjoining 
lots;  one  being  commenced  about  six  weeks 
before  the  other.  No  seimrate  account  was 
kept  of  the  materials  furnished  to  either 
bouse,  and  It  could  not  be  ascertained  how 
much  had  gone  Into  either. 

[3]  The  plainUff  in  his  cerUflcate  of  Uen 
states  that  he  has  "furnished  materials  and 
rendered  services  In  ttie  construction  of  a  cer- 
tain building  owned  by  said  Joseph  Bonee 
and  situated  in  the  town  of  Old  Lyme,  on  a 
lot  of  land  belonging  to  said  Joseph  Bonee," 
and  then  he  claims  a  lien  "on  said  building 
and  land  on  which  It  stands."  It  now  ap- 
pears that  the  certain  "building  and  land  on 
which  it  stands"  were  two  separate  build- 
lugs  owned  by  different  parties  and  located 
upon  separate  tracts  of  land.    It  is  plain  that 


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STAMFORD  TRUST  CXJ.  v.  MACK 


235 


such  a  lien  does  not  meet  with  the  require- 
ments of  our  statute. 

There  Is  no  error.    The  other  Judges  con- 
curred. 

(91  Conn.  620) 

STAMFORD  TRUST  C50.  ▼.  MACK  et  al. 

(Supreme  Court  of  Errors  of  Connecticut. 

June  1,  1917.) 

1.  Tbubts    «=s>226— Trustee— Lia.bu.itz    >ob 
Taxes— Drir  to  Pat. 

Those  to  whom  a  testamentary  trustee  is 
required  br  the  will  to  accord  the  right  of  oc- 
copancy  oi  a  building,  even  though  such  right 
is  concutioned  cm  their  defraying  the  expenses 
of  carrying  the  property,  are  under  no  legal 
obligation  to  pay  taxes  on  the  building  levied 
against,  the  trustee  having  the  legal  title  and 
right  of  possession;  it  being  the  trustee's  duty 
to  cause  such  taxes  to  be  paid  if  the  means  to 
accomplish  that  end  are  at  its  command. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Die.  I  323.] 

2.  Trusts   ®=>184— Trustee's  Dxttt  to  In- 
sure, etc. 

It  was  the  duty  of  a  testamentary  trustee, 
holding  legal  title  to  a  buildf  jg,  to  make  neces- 
saiy  repairs  and  maintain  reasonable  insurance 
thereon ;  the  will  having  made  an  express  bequest 
to  the  trustee  to  pay  taxes,  defray  the  cost  of 
insurance  and  necessary  repairs,  and  to  keep 
the  property  free  from  incumbrances- 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig-  i  238.] 

3.  WnxB    <S=>e84(5)  — Trust- Patuemt    of 
Taxes— Use  of  Funds. 

Where  testator's  will  provided  for  the  ac- 
comulation  of  a  $14,000  fund,  and  devoted  it  to 
the  production  of  income  to  be  paid  over  to 
surviving  nephews  and  nieces,  it  being  his  evi- 
dent Intent  that  the  fund,  when  accumulated 
to  the  specified  amount  should  be  kept  intact, 
and  its  income  enjoyed  by  the  nephews  and 
nieces,  the  trustee  could  not  appropriate  any  of 
the  income  of  such  fund,  or  any  of  its  prin- 
cipal, to  the  payment  of  taxes  or  the  cost  of 
insurance  or  repairs  on  a  Imilding  which  the 
nephews  and  nieces  were  given  the  right  to  oc- 
cupy so  long  as  they  remained  unmarried. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {  1621.1 

4.  Trusts    «=>191(1)— Trustee's    Power   to 
Sell  Rbaltt— Payment  of  Taxes. 

Where  testator's  will  gave  a  building  for 
the  occupancy  of  his  nephews  and  nieces  so 
long  as  they  should  remain  unmarried,  etc.,  and 
provided  that  on  the  death  of  all  the  beneficia- 
ries the  executors  and  trustees  should  transfer 
all  the  estate  to  a  Lutheran  seminary,  to  apply 
a  portion  not  exceeding  $14,000  to  the  erection 
of  a  brick  or  a  stone  church  on  the  realty  on 
which  the  building  stood,  and  the  trustee  for 
the  nephews  and  nieces  was  expressly  author- 
ised to  sell  and  convey  by  proper  deed  any  and 
all  portions  of  testator's  estate,  the  trustee  had 
power  to  aell  and  convey  the  northerly  half  of 
the  realty  on  which  the  building  stood  to  pro- 
cure money  to  pay  accrued  taxes  on  the  prop- 
erty, to  make  repairs,  and  to  secure  insurance, 
if  tiie  course  was  necessary  to  carry  testator's 
purpose  into  effect  to  the  fullest  practicable  ex- 
tent 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  f  243.1 

Case  Reserved  from  Superior  Court,  Falr- 
fleld  County;   Edwin  B.  Gager,  Judse. 
Suit  by  the  Stamford  Trust  Company,  ex- 


ecutor and  trustee,  against  Dorothea  W. 
Mack  and  others.  Reserved  by  the  superior 
court  on  an  agreed  statement  of  facta  for  the 
advice  of  the  Supreme  Court  of  Errors.  Supe- 
rior court  advised. 

Charles  F.  A.  Mack  died  in  Stamford  in 
1882,  leaving  personal  estate  and  a  single 
piece  of  real  estate  located  on  Franklin  street 
In  that  dty.  By  provisions  of  his  will  pre- 
ceding the  seventeenth  paragraph  be  made 
dl^Nisitions  of  personal  estata  The  seven- 
teenth, nineteenth,  twentieth,  twenty-first, 
and  the  first  portion  of  the  twenty-second 
paragraphs  are  as  follows: 

"Seventeenth.  I  give  and  devise  to  my  execu- 
tors and  to  their  successors,  my  real  estate,  in- 
cluding the  buildings  thereon,  situated  on  Frank- 
lin street  in  said  Stamford,  in  trust  neverthe- 
less to  hold  the  some  as  a  place  of  habitation 
free  of  charge,  for  my  said  nephew  and  nieces 
jointly  during  the  term  of  their  natural  lives,  or 
so  long  as  they  and  each  of  them  shall  be  and 
remain  single  and  unmarried,  and  it  is  my 
will  that  if  at  any  time  hereafter  my  said  neph- 
ew or  any  of  my  said  nieces  shall  marry,  such 
use  shall  thereupon  cease  so  far  as  such  one  or 
ones  as  shall  be  married  are  concerned,  but  the 
same  shall  be  en^'oyed  jointly  by  such  of  them 
as  shall  remain  single  and  unmarried,  and  it  is 
my  further  will  and  desire  that  should  the 
wife  or  husband  of  such  of  my  said  nephew  or 
nieces  as  shall  marry,  die  leaving  them  surviv- 
ing such  nephew  or  nieces  shall  thereupon  be 
entitled  to  the  use  of  said  premises  jointly  with 
the  others,  in  the  same  manner  as  if  they  had 
never  married,  and  further  in  case  none  of  my 
said  nieces  or  my  said  nephew  shall  have  re- 
mained single  and  unmarricu,  or  neither  of  them 
shall  have  become  widows  before  the  last  of 
my  said  nieces  and  my  said  nephew  shall  have 
married,  then  it  is  my  will,  and  I  hereby  give 
my  said  executors  and  their  successors  the  pow- 
er, in  their  discretion  to  continue  said  use  for 
the  benefit  of  my  niece  last  married  or  any  or 
all  of  my  said  nieces,  for  the  purpose  of  prevent- 
ing at  all  times  the  invalidation  of  any  policy 
or  policies  of  insurance  now  covering  or  to 
hereafter  cover  the  buildings  ut>on  said  real  es- 
tate, giving  to  my  said  executors  and  to  their 
successors  the  right  to  extend  and  continue 
such  use  during  the  life  time  of  such  of  my 
nieces  as  they  (my  said  executors)  may  see  fit, 
but  upon  the  death  of  any  of  them,  said  use 
shall  thereupon  at  once  and  forever  cease,  so 
far  as  her  or  their  respective  husband  or  hus- 
bands are  concerned,  and  in  case  my  said  neph- 
ew or  either  or  any  of  my  said  niecea  or  all  of 
them,  shall  take  any  steps  towards  the  invalidat- 
ing of  this  my  last  will  and  testament,  or  shall 
appeal  from  or  in  any  way  oppose  any  of  the 
acts  of  my  said  executors  or  their  successors  in 
the  administration  of  my  estate  as  herein  pro- 
vided, then  I  hereby  give  to  my  said  executors 
and  their  successors  the  power  to  discontinue 
such  use  of  my  said  real  estate  as  is  herein  given 
so  far  as  such  one  or  ones  aa  shall  in  any  way 
oppose  or  appeal  from  the  administration  of  my 
estate,  are  concerned,  and  my  said  executors  and 
their  successors  shall  also  have  the  power,  at 
any  time  thereafter  in  their  discretion,  to  renew 
snch  use  in  the  same  manner  as  if  such  use  haa 
never  been  discontinued.     •     •     • 

"Nineteenth.  In  case  any  apartment  in  m.v 
said  dwelling  or  the  whole  premises  including 
the  bam  shall  not  be  needed  or  occupied  by  my 
said  nephew  or  any  of  my  said  nieces  as  herein- 
before provided,  then  I  he^e^y  request  and  em- 
power my  executors  and  their  successors  to  rent 
the  same  temporarily  from  time  to  time  until 


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101  ATLANTIC  REPORTEE 


(Conn. 


my  said  nephew  and  all  of  my  said  nieces  shall 
have  deceased  and  to  invest  the  income  derived 
therefrom  in  the  manner  provided  herein  for 
the  residue  of  my  estate. 

"Twentieth.  All  the  rest,  residae  and  remain- 
der of  my  estate  of  whatever  kind  and  whereso- 
ever situated  I  hereby  give  to  my  said  execu- 
tors and  their  successors,  so  as  to  vest  in  them 
the  le^al  estate,  but  to  bold  the  same  in  trust, 
nevertheless,  for  the  following  purposes  and 
uses,  to  wit:  to  invest  the  sum  of  fifteen  hun- 
dred ($1,500)  dollars  in  such  manner  and  upon 
such  security  as  they  may  deem  best,  and  to 
apply  the  income  derived  therefrom,  or  so  much 
thereof  as  may  be  necessary,  and  if  necessary,  at 
their  discretion  any  or  all  of  the  principal  sum, 
towards  the  payment  of  all  legal  taxes  levied  on 
my  said  real  estate  on  Franklin  street  aforesaid, 
and  for  the  continuing  of  any  fire  insurance  on 
said  buildings,  and  for  such  repairs  to  said 
buildings,  as  may  from  time  to  time  be  neces- 
sary, and  also  to  keep  the  entire  legal  estate 
from  encumbrances  or  record  during  the  natural 
life  of  my  said  nephew  or  any  of  my  said  nieces, 
and  upon  the  death  of  my  said  nephew  and  all 
of  my  said  nieces,  it  shall  be  the  duty  of  my  said 
executors  or  their  successors,  to  transfer  said 
sum  or  so  much  thereof  as  shall  then  remain, 
to  tbe  Evangelical  Lutheran  Seminary  of  Getty»- 
burg.  Pa.,  for  the  uses  and  purposes  hereinafter 
directed.  To  invest  the  balance  of  said  rest, 
residue  and  remainder  of  my  estate  in  such  man- 
ner as  in  the  opinion  of  my  said  executors  shall 
seem  best,  until  the  same  with  the  accumula- 
tion of  interest  shall  amount  to  fourteen  thou- 
sand ($14,000)  dollars,  and  thereafter  to  apply 
the  income  thereof,  one  half  annually  in  equal 
shares  to  the  use  of  my  said  nephew  Charles  F. 
Mack  and  my  said  nieces  Christine  C.  Schaal- 
man,  Catherine  A.  Mack  and  Kmilie  C.  Schmidt, 
or  such  of  them  as  shall  then  be  living,  during 
their  natural  life,  and  one  half  annually  in 
equal  shares  to  the  use  of  my  said  nieces  iJoro- 
tbea  W.  Mack,  Anna  B.  Mack  and  Etiie  J.  Mack 
or  such  of  them  as  shall  then  be  living,  and  in 
the  event  of  the  marriage  of  my  said  nephew 
or  either  of  my  said  nieces  his  or  her  share  of 
said  income  shall  be  paid  to  him  or  her.  for  his 
or  her  sole  and  separate  use,  and  in  the  event 
of  the  death  of  my  said  nephew  or  any  of  my 
said  nieces,  the  ^are  of  such  deceased  shall 
be  divided  among  the  survivors  in  equal  shares 
per  capita. 

"Twenty-flrst.  Upon  the  death  of  my  said 
nephew  and  all  of  my  said  nieces,  I  direct  my 
said  executors  or  their  successors  to  transfer  all 
my  estate,  both  real  and  personal  and  whereso- 
ever situated,  to  the  Evangelical  Lutheran  Sem- 
inary of  Gettysburg,  Penn.,  and  to  its  succes- 
sors forever,  in  trust,  to  apply  a  portion  there- 
of, not  exceeding  the  sum  of  fourteen  thousand 
($14,000)  dollars,  towards  the  erection  and  com- 
pletion of  a  church  of  brick  or  stone  upon  my 
said  real  estate  on  Franklin  street  in  said  Stam- 
ford, for  the  use  of  the  Evangelical  Lutheran 
Church  and  to  apply  the  income  of  the  remainder 
thereof  towards  the  support  of  a.  pastor  therefor, 
and  the  maintenance  of  said  church,  paying  over 
said  income  in  such  manner  as  said  Evangelical 
Lutheran  Seminary  of  Gettysburg,  Pa.,  may 
deem  expedient  for  such  purposes  and  I  make 
this  bequest  and  devise  upon  the  express  condi- 
tion that  religious  services  held  in  said  church 
in  said  Stamford  shall  be  mainly  conducted  in 
the  German  language,  and  also  upon  the  condi- 
tion that  there  shall  be  placed  over  the  main 
entrance  to  said  church  a  marble  slab  or  tablet, 
on  which  shall  be  conspicttousl;y  inscribed,  in 
memory  of  my  mother,  tbe  following  words :  'In 
memoriam  Lucie  Christine  Elizabeth  Mack.' 

"Twenty-second.  I  hereby  give  to  my  said 
executors  or  to  such  of  them  as  may  accept  said 
trust  and  to  the  majority  of  them  and  to  their 
successors  in  like  manner,  the  power  to  sell, 
invest,  reinvest  and  take  charge  of  my  entire  es- 
tate and  to  give  proper  deeds  of  c<Hiveyance 


therefor  and  to  execute  any  and  all  instru- 
ments which  may  be  necessary  in  Uie  prem- 
ises.   •    •    •" 

By  the  eighteenth  the  testator  authorized 
the  executors  to  sell  and  convey  a  cemetery 
lot.  The  last  portion  of  the  twenty-second 
paragraph,  with  which  the  will  is  concluded, 
deals  with  the  appointment  of  executors  and 
the  choice  and  authority  of  their  successors. 
The  plaintiC!  is  the  successor  of  the  three 
persons  named  by  the  testator  as  executors 
and  trustees,  and  by  the  terms  of  the  will  it 
bag  all  the  powers  given  therein  to  them. 

The  Evangelical  Lutheran  Seminary  declin- 
ed to  accept  the  trust  created  Jsa  the  twenty- 
first  paragraiA,  and  the  defendant  Herges 
was  appointed  trustee  in  its  stead.  No  assets 
of  the  estate  have  ever  come  into  his  hands. 
The  $1,500  fund  created  pursuant  to  the 
twentieth  paragraph  has  been  exhausted  in 
meeting  the  demands  upon  it  as  provided  in 
that  paragraph. 

A  large  sum  of  money  Is  dne  for  unpaid 
taxes  laid  upon  the  Franklin  street  real  es- 
tate, and  the  buildings  thereon  are  In  great 
need  of  repair.  The  balance  of  the  rest,  resi- 
due and  remainder  of  the  estate  referred  to 
In  the  last  portion  of  paragn^aph  20  has  been 
invested,  and  after  accumulation  to  the 
amount  of  $14,000  the  income  thereof  has 
been  paid  over  from  time  to  time  to  the  neph- 
ews and  nieces  entitled  to  receive  It  The 
plaintiff  now  has  that  fund  in  its  hands. 
That,  and  the  Franklin  street  real  estate, 
comprise  the  only  property  of  the  estate 
held  by  tt.  Six  of  the  nephews  and  nieces 
are  living,  four  of  them  are  unmarried.  The 
husband  of  the  fifth  has  been  absent  and  his 
whereabouts  unknown  for  more  than  seven 
years. 

The  Franklin  street  lot  has  a  frontage  of 
120  feet  The  house  is  located  upon  its 
southerly  portion.  The  northerly  portion 
contains  no  buildings  and  is  unproductive. 
The  lot  is  susceptible  of  division  as  proposed 
by  the  plaintiff.  It  represents  that  it  would 
be  for  the  best  interests  of  the  estate  and 
best  to  promote  the  Interests  of  the  benefici- 
aries under  the  trust  that  the  northerly  half 
of  the  lot,  60  feet  In  front,  be  sold  and  the 
proceeds  used  as  far  as  necessary  In  the  pay- 
ment of  taxes,  and  the  balance  disposed  of  as 
the  court  may  direct 

Warren  F.  Cressy,  of  Stamford,  for  plain- 
tiff. H.  Stanley  Finch,  of  Stamford,  for  de- 
fendant Wm.  J.  Berges,  trustee.  Hugh  J. 
Lavery  and  Lawr^ce  S.  Flnkelstone,  both  of 
Bridgeport,  for  defendant  Christine  Schaal- 
man. 

PRENTICE,  C.  J.  (after  Stating  the  fftcts 
as  above).  The  plaintiff  has  in  its  hands  as 
trustee,  under  the  provisions  of  a  wlU,  a 
tract  of  land  In  Stamford  having  120  feet 
frontage  and  a  dwelling  house  thereon  and  a 
fund  of  $14,000.  The  trust  Is  not  fully  exe- 
cuted, and  it  holds  no  other  pr<^)erty  of  the 
estate.    A  fund  of  $1,600  left  by  the  testator 


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Conn.) 


STAMFORD  TRUST  CO.  y.  MACK 


237 


for  tbe  special  purpose  of  paying  the  taxes 
which  might  be  levied  upon  this  real  estate 
jnd  thereby  keeping  it  free  from  incum- 
brance during  the  continuance  of  the  trust 
aiid  of  defraying  the  expense  of  Insurance 
and  necessary  repairs  during  such  period  has 
been  exhausted.  Already  unpaid  taxes  cov- 
ering a  period  as  far  back  as  1911  have  ac- 
cnmulntpd,  and  tbe  dwelling  Is  sadly  in  need 
of  repair.  The  trustee  has  no  means  at  his 
command  to  use  either  In  paying  tbe  taxes 
or  In  making  repairs  without  a  resort  to  ei- 
ther the  principal  or  Income  of  tbe  $14,000 
fund  or  a  sale  of  the  portion  of  the  real  es- 
tate. In  this  situation  it  seeks  the  advice  of 
tbe  superior  court  as  to  the  true  construction 
of  pertinent  portions  of  the  will  and  its  duty 
and  powers  In  the  premises  under  that  con- 
«tractlon. 

As  far  as  the  real  estate  is  concerned,  it  Is 
apparent  that  the  best  interests  of  all  par- 
ties concerned  demand  that  all  accrued  and 
accruing  taxes  be  paid,  and  the  property 
thus  be  kept  free  from  lien  and  saved  from 
danger  of  sequestration.  In  that  way  only 
can  tbe  manifest  Intent  of  the  testator  be  ef- 
fectuated, and  bis  purpose  saved  from  defeat. 

[1]  'Iliose  to  whom  the  plaintiff  is  required 
by  the  terms  of  the  will  to  accord  the  right 
of  occupancy,  even-  though  that  right  were 
conditioned  upon  their  defraying  the  expense 
of  carrying  the  property,  would  be  under  no 
legal  obligation  to  pay  the  taxes  levied,  as 
they  presumably  and  properly  were,  against 
the  trustee  having  the  legal  title  and  right  of 
possession,  and  could  not  be  made  to  do  so. 
It  is  clear,  therefore,  that  It  Is  the  plaintiff's 
dnty  as  trustee  to  cause  these  taxes  to  be 
paid,  if  the  means  of  accomplishing  that  end 
are  at  its  command. 

[2]  Tbe  situation,  in  so  far  as  the  Insur- 
ance and  necessary  repairs  are  concerned,  is 
somewhat  different.  The  interest  of  the  de- 
fendant Berges  as  trustee  for  the  Evangeli- 
cal Lutheran  Church  and  of  that  church  as 
cestui  que  trust  in  having  the  house  insured 
and  preserved  in  habitable  condition  is  not. 
In  view  of  the  provisions  of  the  will,  so  clear- 
ly apparent.  The  nephews  and  nieces,  how- 
ever, have  such  interest.  Not  only  that,  but 
under  the  peculiar  terms  and  provisions  of 
tbe  will  they  are  In  a  position  to  successfully 
claim  that  It  was  the  testator's  expressed 
purpose  that  they  should  have  the  use  of  the 
Imllding  as  one  fit  for  habitation  without 
charge  or  expense  to  them,  and  that  wbat- 
«ver  charge  or  expense  might  be  involved  In 
so  maintaining  It  should  be  borne  by  his  es- 
tate, iu  so  far  at  least  as  the  means  to  do  so 
nere  available.  The  manner  of  his  gift  In 
their  favor  through  the  Intervention  of  a 
trustee,  the  language  used  in  making  it,  and 
tbe  bequest  to  the  trustee  for  the  purpose  of 
paying  taxes,  defraying  the  cost  of  insurance 
and  necessary  repairs,  and  keeping  the  prop- 
«rty  free  from  Incumbrance,  when  read  to- 
gether indicate  this.  Thus  the  plaintiff  trus- 
tee's duty  to  make  necessary  repairs  and 


maintain  reasonable  insurance  Is  established, 
assuming,  of  course,  that  the  means  where- 
with to  perform  it  are  within  its  reach. 

The  plaintiff's  duty  being  established,  the 
problem  which  the  trustee  has  next  to  face 
concerns  the  ways  and  means.  The  nephews 
and  nieces,  as  we  have  seen,  are  under  no  le- 
gal obligation  to  provide  them.  The  same 
line  of  reasoning  which  establishes  their 
right  to  the  use  and  occupancy  of  the  prop- 
erty in  habitable  condition  without  charge 
for  the  cost  of  necessary  repairs  also  estab- 
lishes their  freedom  from  moral  obligation  to 
do  so.  Mr.  Berges,  the  trustee  who  is  to  re- 
ceive property  of  the  estate  on  behalf  of  the 
E]vangellcal  Lutheraii  Church,  is  likewise 
free  from  that  obligation.  Tbe  plaintiff  is 
thus  compelled  to  look  to  the  property  of  the 
estate  In  its  hands,  which  is  confined  to  the 
real  estate  and  the  $14,000  fund. 

[3]  Tbe  latter  fund  is  unmistakably  devot- 
ed by  the  testator  to  the  production  of  in- 
come to  be  paid  over  to  surviving  nephews 
and  nieces.  It  was  his  evident  intent  that 
the  fund,  when  accumulated  to  the  amount 
specified,  should  be  kept  Intact  and  its  in- 
come enjoyed  by  them.  They  were  made  Its 
beneficiaries,  and  any  appropriation  of  its 
Income  or  of  its  principal  (thereby  reducing 
the  income)  for  the  payment  of  taxes  or  cost 
of  insurance  or  repairs  would  be  a  withhold- 
ing from  them  of  what  was  their  just  due, 
and,  as  far  as  the  taxes  were  concerned,  a 
clear  diversion  from  them  for  the  benefit  of 
those  who  are  entitled  to  enjoy  the  property 
after  they  are  gone. 

Turning  to  the  real  estate  itself,  we  find 
that  the  trustee  is  by  the  twenty-second 
paragraph  of  the  will  expressly  authorized 
to  sell,  and  by  proper  deed  of  conveyance  to 
convey,  any  and  all  portions  of  the  testator's 
estate.  This  power  to  sell  and  convey  Is  not 
one  whose  exercise  is  restricted  to  any  emer- 
gency. It  is  unlimited.  That  it  comprehends 
the  real  estate  and  was  intended  so  to  do  is 
made  evident  by  the  testator's  language  giv- 
ing authority  not  merely  to  sell,  but  to  sell  and 
convey  by  "proper  deeds  of  conveyance.**  As 
the  real  estate  in  question  was  all  that  the 
testator  owned,  this  langutige  must  have  been 
used  with  reference  to  it,  and  with  the  pur- 
pose of  empowering  Its  alienation  by  the 
trustees.  Authority  so  given  implies  author- 
ity to  alienate  at  discretion.  Bristol  v. 
Austin,  40  Conn.  438,  439.  BMdently,  there- 
fore, the  testator's  purpose  lodioated  in  am 
earlier  paragraph  of  preserving  It  for  the 
erection  of  a  church  thereon  was  not  the  fore- 
most one  in  his  mind,  nor  his  direction  In  that 
regard  absolute  and  unyielding. 

The  power  of  sale  is  coupled  with  one  to  In- 
vest, reinvest,  and  care  for  the  proceeds. 
Quite  likely  the  testator  did  not  anticipate  a 
contingency  In  which  funds  in  excess  of 
those  8i>eclfically  provided  for  the  purpose 
would  be  needed  to  meet  expenditures  requir- 
ed to  be  made  in  furtherance  of  the  best  in- 
terests of  his  trust  estate,  and  thought  aaly 


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238 


101  ATLANTIC  KBPORTEB 


(Del. 


of  InTcstment  and  relnvestnieiit.  Bnt  the 
power  of  sale  as  authorized  having  been  exer- 
cised, and  a  portion  of  the  property  having 
been  sold,  the  proceeds  would  form  a  part  of 
the  trust  estate  not  devoted  by  the  testator  to 
a  spedflc  purpose,  and  available  for  use  in 
the  preservation  of  the  trust  pn^erty  and 
the  conduct  of  the  trust  in  such  a  way  as  to 
efTectuBte  the  testator's  Intent  to  the  fullest 
practicable  extent 

[4]  Our  conclusions  render  It  unnecessary 
to  consider  the  aM>eal  which  Is  made  to  sec- 
tion 1035  of  the  General  Statutes  In  support 
of  the  authorl^  of  the  superior  court  to 
order  a  sale  We  are  of  the  opinion,  there- 
fore, and  the  superior  court  Is  advised: 

(1)  That  the  plaintiff  has  ample  power  un- 
der the  provisions  of  the  will  to  sell  and  con- 
vey the  northerly  half  of  said  premises  as 
pr(v>06ed,  if  In  Its  judgment  such  course  Is, 
under  existing  drcumstauces,  necessary  or 
prudent  in  order  that  the  testator's  purpose, 
as  expressed  In  his  will,  may  be  carried  Into 
effect  to  the  fullest  practicable  extent,  and  the 
best  interests  of  the  trust  and  of  the  b«ie- 
fldarles  thereunder  be  subserved. 

(2)  That  It  may  use  so  much  of  the  proceeds 
of  such  sale  as  may  be  required  to  pay  the 
taxes  already  laid  or  which  may  hereafter  be 
laid  upon  said  real  estate  la  Its  bands,  and 
also  so  much  thereof  as  may  reasonably  be 
necessary  In  order  that  the  d-welllng  house 
thereon  may  be  kept  reasonably  Insured  and 
In  a  reasonably  habltoible  oondltl<Hi. 

(3)  Tbat  any  unexpended  balance  of  sudi 
proceeds  should  be  held  by  It  under  the  terms 
of  the  trust  In  lieu  of  property  sold. 

The  superior  court  is  further  advised  that 
it  is  the  plaintiff's  duty  to  continue  to  pay 
over  the  income  of  the  $14,000  fund  to  the  sur- 
viving nephews  and  nieces  In  the  manner  and 
the  proportion  stated  in  the  twentieth  para- 
graph of  the  testator's  will. 

No  costs  in  this  court  will  be  taxed  in  favor 
of  any  of  the  parties.  The  other  Judges  om- 
curred. 

(6  Boyce,  662) 

MILFORD  CO.  T.  SHOBT.    (No.  77.) 

(Superior  Court  of  Delaware.     New  Castl«. 

June  7,  1017.) 

1.  Novation  «s>5— Contbact  or  Saix. 

Where  a  contract  for  the  sale  and  delivery 
of  lumber  for  a  building  was  assigned  by  the 
buyer  for  valuable  consideration,  the  seller  hav- 
ing notice  of  the  assignment,  in  the  absence  of 
the  seller's  agreement  thereto,  some  new  prom- 
ise on  bis  part  to  the  assignee  based  on  consid- 
eration or  eztingnishment  of  the  seller's  liabili- 
ty to  the  buyer,  there  was  no  novation. 

[Ed.  Note.— For  other  cases,  see  Novation, 
Cent  Dig.  i  5.] 

2.  CoNTBACTB  (3s»346(4)— Action  fob  Bbeaoh 
— Vabiance. 

Proof  of  any  contract  other  than  that  de- 
clared on  in  an  action  for  breacti  constitutes  a 
fatal  variance. 

[Ed.  Note.— For  otlier  cases,  see  Contracts, 
Cent.  Dig.  §9  1720,  1722-1725.] 


3.  AssioNicENTS  «=»121  —  (Those  in  Action- 
Suit. 
A  chose  in  action,  such  as  a  contract  to  sell 
and  deliver  lumber  for  a  building,  was  not  as- 
signable so  as  to  entitle  the  assignee  to  main- 
tain an  action  in  its  own  name  for  breach;  it 
should  have  sued  in  the  name  of  the  assignor. 

[Ed.  Note. — For  other  cases,  see  Assignments, 
Cent  Dig.  {f  200-205.] 

Action  brought  by  the  Milford  Company, 
a  corporation  of  the  State  of  Delaware, 
against  Isaac  D.  Short  On  motion  at  close 
of  plaintiff's  testimony  for  nonsuit    Granted. 

The  action  was  for  an  alleged  breach  of  con- 
tract, entered  into  between  Kmll  P.  Gebhart 
and  the  defendant  for  furnishing  lumber  by 
the  latter  to  the  former,  for  the  erection  of 
a  certain  building  in  the  town  of  Milford, 
Sussex  (bounty. 

After  some  deliveries  of  the  lumber  bad 
been  made  to  Oebhart,  he  assigrned  the  con- 
tract to  th2  plaintiff,  giving  Short  notice  of 
the  assignment  Short  made  subsequent  de- 
liveries; but  failing,  it  being  claimed,  to 
comply  with  his  contract  by  delivering  the 
lumber  as  required  In  the  construction  of  the 
building,  the  Milford  Company  rescinded  the 
contract  and  bought  lumber  in  the  open 
market  to  complete  the  building.  The  Mil- 
ford Company,  in  Its  own  name,  sued  Short 
for  damages  and  declared  on  the  assigned 
contract  At  the  close  of  plaintlfTs  testi- 
mony, counsel  for  defendant  moved  for  non- 
suit on  the  ground  that  an  action  at  law 
could  not  be  brought  for  the  alleged  breach 
of  the  c(Hitract  in  the  name  of  the  assignee, 
but  must  be  maintained  in  the  name  of  the 
assignor  as  the  bolder  of  the  legal  right  or 
title. 

It  was  contended  for  the  plaintiff  that  the 
evidence  showed  a  novation  of  the  contract 
between  all  the  parties,  or  a  new  contract 
between  Short  and  the  plaintiff  such  as  to 
entitle  the  latter  to  sue  in  its  own  name. 

Argued  before  BOYOB  and  HHISETj,  JJ. 

Andrew  C.  Gray  and  E.  B.  Berl,  both  of 
Wilmington,  for  plaintiff.  Robert  H.  Rldi- 
ards  and  James  I.  Boyce,  both  of  Wilming- 
ton, for  defendant 

BOYCE,  J.  (deliveriiig  the  <H>InIon  of  the 
court).  [1, 2]  Both  on  the  pleadings  and  from 
the  evidence,  this  ia  an  action  for  the  breach 
of  a  contrail  for  the  purchase  of  lumber  on 
the  part  of  Emil  P.  Gebhart  and  the  sale 
and  delivery  thereof  to  Gebhart,  on  the  part 
of  Isaac  D.  Short,  the  defendant,  for  the  erec- 
tion of  a  certain  building.  The  contract  was 
subsequently  assigned  by  Gebhart  to  the  Mil- 
ford Company,  the  plaintiff,  with  notice  to 
Short  There  is  no  proper  suggestion  In  the 
declaration  of  a  novation  of  the  contract. 
The  averment  In  the  declaration  is: 

"  •  •  ♦  On  the  eiehteenth  day  of  July,  A. 
D.  15)12,  the  said  Emu  P.  Gebhart  by  certain 
writing  signed  by  him,  bearinK  date  the  day, 
month  and  year  last  aforesaid,  for  valuable  con- 
sideration, assigned,  transferred,  bargained  and 


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239 


sold  to  the  plaintiff  all  his  right,  title  and  Inter- 
cast under  uie  said  contract,  whereof  the  said 
defendant  on  the  same  day,  month  and  year 
aforesaid  had  notice." 

It  is  not  shown  that  the  defendant  agreed 
to  the  assignment,  or  that  there  was  any 
new  promise  on  bis  part  to  the  plaintiff 
based  on  any  consideration  therefor  from  the 
plaintiff  to  the  defendant,  or  that  the  liabil- 
ity of  the  latter  to  Gebhart  was  extinguished. 
McKlnney  v.  Alvls,  14  111.  33;  Cole  v.  Bod- 
flsh,  17  Me.  310.  It  is  scarcely  necessary  to 
say  that  proof  of  any  other  contract  than 
that  declared  on  constitutes  a  fatal  variance. 

[3]  The  contract  sued  on  being  a  chose  in 
action,  was  not  assignable  so  as  to  entitle 
the  plaintiff,  the  assignee,  to  maintain  an  ac- 
tion thereon  In  its  own  name  for  a  breach 
thereof;  for  in  such  a  case  the  assignee  must 
sue  in  the  name  of  the  assignor.  1  Saund.  Pi. 
ft  EJv.  144 ;  Dicey  on  Parties  to  Actions,  rules 
6, 15,  pages  80,  136;  1  Chitt-y,  PI.  15;  Elliott 
on  Contr.  %  1431;  6  C.  J.  9S6;  Klnnlken  ▼. 
Dnlaney,  Assignee,  5  Har.  384;  1  Woolley, 
Del.  Prac.  !$  145-147. 

For  the  reasons  stated,  we  are  constrained 
to  grant  the  nonsuit. 

Mr.  Gray:  We  decline  to  take  a  nonsuit 

BOYCE,  J.  (charging  the  Jury).  The  court 
instruct  you,  gentlemen  of  the  Jury,  to  re- 
turn a  verdict  for  the  defendant 

Verdict  for  defendant. 


(S  BoTce,  6M) 

STATE  V.  KA^^3. 

(Supreme  Court  of  Delaware.    June  12,  1917.) 

(Svnab}u  by  the  Court.) 
Intoxioatino  Liquobs  «=»107— Licehsb— Va- 

UDTTT. 

Jamea  Kane  was  indicted  for  selling  intos- 
icatin!;  liquor  on  April  27.  1917,  In  less  quantity 
than  one  quart  to  be  drnnk  oS  the  premises, 
ander  a  special  license,  issued  to  him  on  the 
fourteenth  day  of  March,  1917,  authorizing  such 
a  sale.  One  Mny  ninth,  1917,  plea  of  not  guilty 
was  entered.  The  act  under  which  the  special 
license  had  been  issued  was  repealed,  April 
fourth,  1917.  The  question  before  the  court  was 
as  to  the  effect  of  the  repeal  on  the  license, 
in  the  absence  of  any  saving  from  the  opera- 
tion of  the  repeal.  Held  that  the  license  is  good 
and  valid  for  a  period  of  one  year  from  the  date 
of  the  inuance  thereof. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  {  114.] 

James  Kane  was  indicted  for  selling  in- 
toxicating liquor,  etc.  Case  heard  In  the 
court  in  banc  In  accordance  with  the  deter- 
mination of  the  Court  of  General  Sessions 
directing  that  the  case  be  so  heard.  Opinion 
certified  to  Court  of  General  Sessions,  where- 
in nolle  prosequi  was  entered. 

Argued  before  PENNEWIUi,  C.  J.,  and 
BOYCE,  (30NRAD,  HICE,  and  HEISEL,  JJ. 

David  J.  Reinhardt  Atty.  Gen.,  for  the 
State.  Philip  L.  Garrett  of  Wilmington,  for 
accused. 


It  was  considered  by  the  Court  of  General 
Sessions  that  the  question  of  law  arising  in 
the  case  ought  to  be  heard  by  the  court  in 
banc,  and,  on  the  Joint  application  of  the  par- 
ties with  an  agreed  statement  of  facts  ap- 
pended, the  court  directed  that  the  same  shall 
be  so  heard. 

The  agreed  statement  of  facts  shows  the  in- 
dictment, which  charges  as  Is  admitted,  that 
James  Kane,  late  of,  etc.,  on  the  twenty- 
seventh  day  of  April,  in  the  year  of  our  Lord, 
one  thousand  nine  hundred  and  seventeen, 
with  force  and  arms  at,  etc.,  in  a  certain 
house  there  situate,  to  wit  the  house  known 
as  the  Hotel  Wilmington  located  at  819  Mar- 
ket street  in  the  Fifth  ward  of  tlie  city  of 
Wilmington  and  In  which  said  house  the 
business  of  selling  intoxicating  liquors  was 
then  and  there  carried  on,  he  the  said  James 
Kane  then  and  there  being  the  tenant  and 
occupant  of  said  house,  he,  the  said  James 
Kane  then  and  there  having  a  proper  license 
to  sell  intoxicating  liquor  according  to  law 
only  in  quantities  less  than  one  quart  to  be 
drunk  on  said  premises  did  then  and  there 
unlawfully  sell  intoxicating  liquor  to  wit 
whiskey,  to  one  Lucius  C.  Jones  in  a  quan- 
tity less  than  one  quart  to  be  drunk  off  said 
premises,  against,  etc. 

That  said  defendant  did  on  the  fourteenth 
day  of  March,  A.  D.  1917,  receive  from  this 
honorable  court  a  proper  license  authorizing 
hlni  to  sell  at  said  Hotel  Wilmington  Intox- 
icating liquors  in  quantities  less  than  one 
quart  to  be  drunk  on  the  premUet. 

That  having  obtained  such  last  mentioned 
license,  said  defendant  did  on  the  fourteenth 
day  of  March,  A.  D.  1917,  make  application 
to  the  clerk  of  the  peace  of  New  Castle  coun- 
ty and  from  him  did  receive  a  further  or  spe- 
cial license  for  one  year  to  sell  intoxicating 
liquors  In  quantities  less  than  one  quart  to 
be  drunk  off  the  premUet. 

That  on  the  day  of ,  A.  D. 

1917,  the  General  Assembly  did  pass  a  cer- 
tain law,  viz.: 

"  »  •  •  Section  1.  That  chapter  6  of  the 
Revised  Statutes  of  the  state  of  Delaware  be 
and  the  same  is  hereby  amended  by  strlkLng 
out  paragraph  number  6  of  section  124  of  said 
chapter.  Code  section  ISL"  Approved  April 
4th.  19l7. 

It  was  agreed  that  If  the  court  In  banc 
should  be  of  the  opinion  that  the  said  special 
license  issued  to  the  said  James  Kane  by  the 
clerk  of  the  peace  of  New  Castle  county  on 
the  fourteenth  day  of  March,  A.  D.  1917,  au- 
thorizing him  to  sell  intoxicating  liquors 
in  less  quantities  than  one  quart  to  be  drunk 
off  the  premises,  is  good  and  valid  for  a 
period  of  one  year  from  the  date  of  the  Is- 
suance thereof,  then  judgment  in  the  above 
stated  cause  shall  be  entered  accordingly 
upon  a  verdict  of  not  guilty,  but  if  the  court 
shall  be  of  the  opinion  that  said  special  li- 
cense so  issued  by  the  clerk  of  the  peace  as 
aforesaid  to  said  defendant  was  revoked  or 
rendered  null,  void  and  Invalid  by  the  abovt 


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101  ATLANTIC  REPORTER 


(Del. 


recited  act  of  the  General  Assembly  approved 
April  fourth,  1917,  then  Judgment  shall  be 
entered  against  the  said  defendant  upon  a 
verdict  of  guilty  to  be  rendered  by  a  Jury, 
charged  accordingly  by  the  court  upon  the 
said  admitted  facts. 

The  repealed  paragraph,  numbered  6,  (  124, 
c.  6  (Code  1915,  i  161),  reads: 

"Any  person  or  persons  having  obtained  a  li- 
cense  under  the  provisions  of  this  section  may, 
if  he  BO  desires,  on  application  to  the  clerk  of 
the  peace  of  the  county  in  which  such  license 
has  been  obtained,  he  entitled  to  receive  a  fur- 
ther or  special  license  for  one  year  to  sell  in- 
toxicating liquors  in  quantities  less  than  one 
quart,  to  be  drunk  off  the  premises,  and  for 
such  special  license  shall  pay  to  said  clerk  of 
the  peace  the  sura  of  twenty-five  dollars  in  ad- 
dition to  the  license  fees  now  provided  by  law," 

The  Attorney  General  contended,  that  the 
amending  act  took  effect  and  became  opera- 
tive upon  the  date  of  its  approval  by  the 
Governor;  that  it  expressly  repealed  the 
provision  for  the  granting  of  special  licenses 
authorized  by  paragraph  numbered  6  of  sec- 
tion 124  of  chapter  6  (Rev.  (3ode  1915,  8  161); 
that  there  Is  In  the  act  no  provision  for  sav- 
ing from  its  operation  special  licenses  such 
as  that  granted  to  the  defendant;  that  a 
license  to  sell  intoxicating  liquor  is  not  a 
contract,  or  a  property  or  vested  right  but 
Is  only  a  permit  or  privilege  which  may  be 
withdrawn  at  any  time;  and  that  a  license  to 
sell  intosicaUug  liquor  is  revoked  or  an- 
nulled by  the  repeal  of  the  law  authorizing 
the  grant  of  such  license.  Joyce  on  Intox. 
Uq.  36S;  1  Woollen  &  Thornton,  {{  331,  428; 
Black  on  Intox.  Liq.  S|  90,  127,  190;  15  R.  C. 
L.  311;  Brown  v.  State,  82  Ga.  224,  7  S.  R 
915;  Arie  v.  State,  23  Okl.  166,  100  Pac.  23; 
Pleuler  ▼.  State,  11  Neb.  647,  10  N.  W. 
481-490;  Robertson  v.  State,  12  Tex.  App. 
641;  E}x  parte  Lynn,  19  Tex.  App.  293;  E^x 
parte  Vaccarezzo,  52  Tex.  Cr.  R.  105,  105  S. 
W.  1119;  State  v.  Ckx>ke,  24  Minn.  247,  31 
Am.  Rep.  344;  (Jom.  v.  Jones,  10  Pa.  Co.  Ct 
611;  Com.  t.  Sellers,  130  Pa.  32,  18  Ati.  541, 
542;  Vlefhaus  v.  State,  71  Ark.  419,  75  S. 
W.  685;  Bordwell  v.  State,  77  Ark.  161,  91 
S.  W.  555;  CJalder  v.  Kurby,  6  Gray  (Mass.) 
697;  Fell  v.  State,  42  Md.  71,  20  Am.  Rep. 
83;  (3olumbus  v.  Outcomp,  61  Iowa,  672,  17 
N.  W.  47;  State  v.  MullenhofC,  74  Iowa,  271, 
37  N.  W.  329;  State  v.  Isabel,  40  La.  Ann. 
340,  4  South.  1;  Reitmlller  v.  Peoples,  44 
Mich.  280.  6  N.  W.  667;  State  v.  Holmes,  38 
N.  H.  225,  Metropolitan  Board  of  Excise  v. 
Barrie,  34  N.  Y.  659;  Prohibitory  Amend- 
ment (?ases,  24  Kan.  700;  Brown  v.  State,  82 
Ga.  224,  7  S.  E.  915. 

Counsel  for  the  defendant  replied  that 
the  repealing  act  affects  nothing  but  the  pow- 
er to  issue  special  licenses  after  the  act  took 
effect;  that  it  repealed  the  authority  to  grant 
any  more  such  licenses  but  nothing  more; 
that  there  Is  nothing  in  the  act  indicating  an 
intention  of  tlie  Legislature  to  revoke  or  an- 
nul the  uae.\pired  licenses  granted  before  the 
repeal.  Him  v.  State,  1  Ohio  St  15;  Adams 
v.  Hackett,  27  N.  H.  289,  69  Am.  Dec.  876; 


I  State  V.  Andrews,  26  Mo.  171;  State  t.  An- 
drews, 28  Mo.  14;  May  v.  Commonwealth, 
160  Ky.  785,  170  S.  W.  493 ;  Foster  v.  Dow, 
29  Me.  442;  Watts  v.  CJommonwealth,  78  Ky. 
329 ;  Bush  v.  D.  C,  1  App.  D.  C.  1. 

It  was  also  urged  tliat  it  is  a  sound  rule 
of  construction  that  a  statute  shall  have  a 
prospective  operation  only,  unless  its  terms 
show  clearly  a  legislative  intention  that  it 
shall  operate  retrospectively,  Cooley's  Const. 
Lim.  370;  Railroad  Co.  t.  Judge,  etc.,  10 
Bush  (Ky.)  574. 

PEINNBWim  0.  J.  (delivering  the  oplnloi* 
of  the  court).  The  question  to  be  determined 
in  this  case  is  not  whether  a  law  malting  it 
unlawful  to  sell  intoxicating  liquor  would 
revoke  a  license  for  such  sale  issued  before 
the  enactment  of  the  law. 

In  such  case  it  is  clearly  the  intention  of 
the  Legislature  that  liquor  shall  not  be  sold 
at  aU.  Therefore,  all  the  cases  cited  by  the- 
state.  In  which  the  sale  was  made  unlawful, 
are  not  applicable  to  the  present  case  where 
the  statute  which  authorized  the  issuance  of 
the  license  was  merely  repealed.  In  all  the- 
state's  cases,  except  the  Pennsylvania  County 
Court  case,  the  sale  was  expressly  made  un- 
lawful, and  In  the  excepted  case  tiere  was 
this  unusual  feature,  viz.:  The  license  of  the- 
defendant  only  authorized  him  to  sell  In  ac- 
cordance with  the  law  of  the  state  "as  it 
may  exist  at  the  time  of  the  sale." 

Some  of  the  language  quoted  by  the  state- 
from  certain  text-writers  is  very  general, 
and  if  intended  to  apply  to  such  a  case  as  the- 
present  one,  does  not  appear  to  be  supported 
by  the  authorities  cited. 

The  text  must  be  based  upon  statutes  or- 
constltutional  provisions  which  expressly 
made  the  sale  unlawful;  and  this  is  evident 
from  more  particular  statements  made  by 
the  writers  referred  to. 

In  1  Woollen  &  Thornton,  {  631,  it  is  said: 

"The  passage  and  adoption  of  a  constitutiODaV 
or  statutory  provision  by  which  the  sale  of  in- 
toxicating liquors  is  prohibited,  will  have  the- 
effect  of  repealing  by  implication  all  laws  au-^ 
tborizing  the  issuance  of  licenses  and  of  an- 
nulling those  which  may  have  been  issued  pre- 
viously," etc. 

Bla<&  onploys  similar  la&gunge,  but  both 
writers  also  make  general  statements  re- 
specting the  effect  of  a  repeal  of  a  sttatnte 
which  apparently  supports  the  contention. 
of  the  state. 

It  Is  not  questioned  that  the  Leglslatura- 
may  revoke  a  license  previously  slven  for  the- 
sale  <^  intoxicating  liquor,  because  such 
license  is  only  a  privilege ;  but  in  order  thac 
a  statute  shall  have  that  effect  it  must  be- 
clear  that  such  was  the  legislative  intent. 
Wheu  the  later  statute  makes  it  unlawful 
to  sell  intoxicating  liquor  at  all,  or  uoiesB- 
the  licensee  procures  a  further  license  or 
complies  with  some  additional  requirement,, 
there  can  be  no  question  about  the  intent, 
but  when  the  statute  merely  repeals  the  law 
which  authorized  the  issuance  of  a  license- 


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IN  RE  WHITE'S  ESTATE 


241 


for  tbe  sale  of  liquor  In  a  particular  way,  as 
In  the  present  case,  the  legal  effect  Is  only 
to  prevent  the  Issuance  of  any  other  li- 
censes of  the  same  kind. 

The  defendant  had  a  license  to  sell  Intoxl- 
cating  liquor  to  be  drunk  on  the  premises, 
and  the  general  law  which  authorized  the 
issuance  of  such  license  was  not  repealed. 
Because  he  had  that  license  he  was  entitled 
to  receive  from  tbe  clerk  of  the  peace  an  ad- 
ditional license  to  sell  liquor  to  be  drunk  off 
the  premises. 

Tbe  act  in  question  did  not,  therefore, 
take  away  the  defendant's  right  to  sell  in- 
toxicating liquor,  but  merely  repealed  the 
section  of  the  liquor  law  that  authorized 
the  Issuance  of  the  additional  license.  There 
is  nothing  In  the  repealing  act  to  show  that 
it  was  Intended  to  have  any  other  effect 
that  to  prevent  the  clerk  of  the  peace  from 
Issuing  any  other  licenses  under  the  act 
repealed. 

While  the  act  in  question  is  not  retroactive 
In  terms,  It  would  unquestionably  have  that 
effect  if  given  the  construction  contended  for 
by  the  state;  and  tbe  law  is  well  settled  that 
an  act  of  the  Legislature  will  not  be  held 
to  operate  retrospectively  unless  the  legisla- 
tive intention  that  it  shall  have  such  opera- 
tion be  clearly  shown.  Cooley's  Con.  Llm. 
3T0. 

The  court  are  of  the  opinion  that  the  spe- 
cial license  Issued  to  the  defendant  by  tbe 
clerk  of  the  peace  of  New  Castle  county,  on 
the  fourteenth  day  of  March,  1917,  authoriz- 
ing bim  to  sell  Intosicatlng  liquors  in  less 
quantities  that  one  quart  to  be  drunk  off  the 
premises,  is  good  and  valid  for  a  period  of 
one  year  from  tbe  date  of  the  issuance 
thereof. 

Tbe  opinion  was  certified  to  the  Court  of 
General  Sessions,  whereupon  the  Attorney  Gen- 
eral altered  a  nolle  prosequi. 

OT  N.  J.  Bq.  607) 

In  re  WHITE'S  ESTATE.     (No.  88.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

Jane  IS,  1917.) 

(Sundtmt  hv  M«  Court.) 

DESCSNT    AI»D    DISTBIBUTION  «=»34t-SUEVIV- 
IKO   BBOTHKBS— CoNSTBUCnOK   OF    STATUTE. 

Under  the  amendment  of  tbe  Orphans'  Court 
Act  (Statute  of  Distributions}  by  Act  March  20, 
1914  (P.  Ia  p.  8M,  surviving  brothera  and  sisters 
take  to  the  ex<ausi<ni  of  children  and  grand- 
children of  deceased  brothers  and  sisters. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
Distribution,  Cent.  Dig.  U  97-101.] 

Kaliscb,  Black,  White,  and  Williams,  JJ.,  dis- 
senting. 

Appeal  from  Prerogative  Court 
In  the  matter  of  an  order  for  distribution 
In  the  estate  of  Henry  R.  White.  From  a 
decree  of  the  Prerogative  Court  (99  Atl.  606), 
reversing  a  decree  of  the  Passaic  County 
Orphans'  Court,  the  decedent's  brothers  ap- 
l>eaL    Decree  reversed,  and  record  remitted 


in  order  that  decree  may  be  entered  dividing 
the  estate  equally  between  two  surviving 
brotliera. 

ArtbTir  B.  Seymour,  of  Orange,  for  appel- 
lant Clifford  L.  Newman,  of  Paterson,  for 
appellee. 

SWATZE,  J,  Henry  R.  White  died  intes- 
tate December  29,  1914.  There  survived  him 
two  brothers  (the  present  appellants);  chil- 
dren of  a  deceased  sister ;  children  of  a  de 
ceased  brother;  a  grandchild  of  a  deceased 
brother.  The  Prerogative  Court  directed 
that  the  estate  be  distributed,  one-fifth  to 
each  of  the  brothers,  one-fifth  to  the  children 
of  the  deceased  sister,  one-fifth  to  the  chil- 
dren of  the  deceased  brother,  and  one-fifth 
to  the  grandchild  of  the  other  deceased 
brother.     The  brothers  appealed. 

The  result  turns  on  the  construction  of  the 
amendment  of  1914  (P.  L.  69)  to  sections  168 
and  169  of  the  Orphans'  Court  Act  para- 
graph 3  of  which  reads  as  follows: 

"If  there  t>e  no  husband  or  widow,  as  the  cose 
may  be,  then  all  of  tlie  said  estate  to  be  dis- 
tributed equally  to  and  among  the  children ;  and 
in  case  there  be  no  child,  nor  any  legal  represen- 
tative of  any  cliild,  then  equally  among  tbe 
parents  and  brothers  and  sisters,  except  where 
the  intestate  is  a  minor,  in  which  case  all  of  tlio 
said  estate  shall  be  allotted  to  tbe  parents,  if 
living,  but  if  not,  then  to  the  brothers  and 
Hsters  equally." 

It  is  necessarily  conceded  that  if  the  words 
of  paragraph  3  of  section  169,  as  amended, 
govern  the  case,  the  brothers  are  entitled  to 
the  whole  estate.  The  effort  of  the  respond- 
ent is  to  vary  the  plain  meaning  of  the  words 
of  that  paragraph  by  "reading  Into  it"  as 
tbe  learned  vice  ordinary  said,  a  provision 
that  the  children  of  a  deceased  brother  or 
sister  take  by  representation  the  parents' 
(Oiare.  He  found  a  warrant  for  this  Inter- 
polation In  the  provision  of  section  168  that 
the  distribution  should  be  Just  and  equal, 
and  to  the  next  of  kindred  to  the  intestate 
in  equal  degrees,  or  legally  representing  their 
stocks.  It  is  always  dangerous  to  read  words 
into  a  statute  that  are  not  there,  as  we  said 
in  Blanz  y.  Erie  Railroad  Company,  84  N.  J. 
Law,  35,  85  Atl.  1030.  It  can  rarely,  almost 
never,  be  done  and  only  when  it  plainly  ef- 
fectuates the  legislative  intent  and  is,  as  in 
that  case,  w^ttin  a  possible  construction  of 
words  actually  used.  It  can  never  be  done 
when  the  language  of  the  act  shows  that  th/> 
Legislature  has  considered  tbe  subject  and 
omitted  the  words  sought  to  be  Interpolated. 
Tbat  is  tbe  present  case.  Paragraph  3  in  the 
act  of  1914  answers  to  paragraphs  3  and  4 
of  the  old  ict  (C.  S.  8875),  but  there  Is  a  most 
significant  cbange  of  language.  The  old  act 
provided  for  distribution  under  paragraph  3 
to  the  next  of  kindred  in  equal  degree  "and 
their  legal  Tepreaentatlves  as  aforesaid." 
The  words  "as  aforesaid"  refer  to  the  lan- 
guage of  section  168  "legally  representing 
their  stocks."     Paragraph  4  of  the  old  act 


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provided  for  a  distribution  "to  brothers  and 
sisters  and  the  representatives  of  them." 
With  these  words  In  both  paragraphs  of  tbe 
old  act  before  them,  the  Legislature,  In  1914, 
carefully,  almost  ostentatiously,  omitted 
them  In  the  new  act.  They  not  only  drop- 
ped them  out,  but  dropped  them  out  after  us- 
ing substantially  the  same  words  In  the 
very  next  preceding  line  of  paragraph  3, 
which  provided  for  the  representative  of  a 
child.  That  this  omission  was  no  mere  over- 
sight appears  more  clearly  when  we  consider 
tbe  object  of  paragraph  3.  The  old  act  in 
paragraph  4  gave  brothers  and  sisters  and 
'he  representatives  of  them  an  equal  share 
with  the  mother.  The  new  act,  paragraph  3, 
^Ives  the  brothers  and  sisters  an  equal  share 
with  the  parents,  except  where  the  Intestate 
Is  a  minor.  If  tbe  Legislature  had  added 
the  words  which  the  vice  ordinary  has  rend 
into  the  act  it  would  have  provided  for  n 
dlstrII)utIon  equally  among  the  parents  and 
brothers  and  sisters  and  the  representatives  of 
them.  It  could  hardly  be  meant  to  allow  rep- 
resentatives of  parents  to  share  since  the 
brothers  and  sisters  and  representatives  of 
brothers  and  sisters  would  necessarily  be  the 
representatives  of  parents  also ;  yet  the  Leg- 
islature by  ccapling  parents  with  brothers  and 
sisters  has  shown  that  they  were  to  be  treat- 
ed alllse;  they  are  to  share  equally.  For 
this  there  Is  reason  In  the  fact  that  parents 
and  brothers  and  sisters  form  a  family  group. 
But  it  conld  hardly  have  been  meant  to  com- 
I)el  a  father  who,  before  this  legislation  took 
tbe  whole  estate,  to  share,  not  merely  with 
his  wife,  his  children,  and  in  case  of  divorce 
and  remarriage,  with  his  wife's  children,  but 
with  his  children's  children  to  the  remotest 
degree.  This  result  was  avoided  by  the  Leg- 
islature when  it  abandoned  the  idea  of  rep- 
resentation. No  argument  can  be  drawn 
from  the  provision  of  section  168  that  the 
distribution  shall  be  Just  and  equal,  for  as 
we  said  in  Smith  v.  McDonald,  71  N.  J.  Eq. 
261,  65  Atl.  840,  any  distribution  authorized 
by  the  statute  would  be  Just ;  changes  In  old 
established  rights  of  inheritance  are  be- 
coming frequent,  and  no  one  would  be  so  bold 
as  to  suggest  that  the  rule  of  the  Legislature 
can  t>e  challenged  as  unjust  because  novel. 
Is  It  unjust  to  deprive  the  father  of  his  form- 
er right  to  talce  the  whole  of  the  child's  per- 
sonal property;  and  shall  we  therefore  say 
that  the  word  "parents"  In  the  new  act  does 
not  mean  parents?  We  must  read  the  law  as 
the  Legislature  makes  It,  even  If  It  conflicts 
with  Ideas  of  Justice  that  have  prevailed  for 
centuries.  Our  whole  scheme  of  Inheritance 
taxes  rests  on  the  theory  that  the  right  to 
inherit  Is  the  gift  of  the  Legislature,  not  a 
natural  right  The  words  which  it  is  pro- 
posed to  interpolate  mean  representation  to 
the  remotest  descendant  of  a  brother  and 
sister,  and  would  not  be  limited  In  the  same 
way  that  the  right  of  representation  had 
been  limited  by  tbe  wisdom  and  sense  of 


Justice  of  the  Boman  Jurisprudence  as  well 
as  of  our  own  until  1899,  as  we  pointed  out 
In  Smith  v.  McDonald.  Justice,  the  old  Idea 
of  Justice,  at  least,  excluded  representation 
beyond  brothers'  and  sisters'  children.  The 
construction  of  the  Prerogative  Court  opens 
tbe  door  to  a  contest  of  a  testator's  will  by 
descendants  of  nephews  or  nieces  who  have 
nothing  to  lose  and  In  whom  tbe  testator 
could  have  little  Interest  at  best.  Nor  do  we 
derive  any  help  from  tbe  use  of  the  word 
"equal,"  since  a  distribution  per  stirpes,  1.  e., 
by  representation,  is  distinguished  from  a 
distribution  per  capita  by  the  very  fact  of 
inequality  between  individuals.  Nor  do  the 
words  "representing  their  stocks"  help  us, 
since  In  the  case  of  nephews  and  nieces  and 
other  next  of  kin  there  had  been  no  repre- 
sentation among  collaterals  beyond  brothers' 
and  sisters'  children  for  centuries  prior  to 
1899.  The  words  of  section  168  as  to  repre- 
sentation of  stoclcs  had  never  been  appli- 
cable except  in  that  limited  way  to  the  next 
of  kin  before  the  omission  of  the  proviso  in 
that  year.  Smith  v.  McDonald,  71  N.  J.  Eq. 
261,  262.  6o  Atl.  S40.  All  that  the  Legisla- 
ture did  in  1914  was  to  take  away  represen- 
tation of  brothers  and  sisters,  perhaps  be- 
cause the  amendment  of  1899  threatened  the 
dissipation  of  estates  in  small  fragments 
among  persons  not  tbe  next  of  kin  of  the 
decedent  and  In  most  cases  unknown  to  him 
by  allowing  them  to  share  with  parents ; 
pertiaps  because  it  was  realized  that  nephews 
and  nieces  were  a  degree  more  remote  than 
brothers  and  sisters,  and  still  more  remote 
than  parents;  while  grandnephews  and 
grandnleces  were  still  further  removed.  It 
would  be  a  step  backward  for  us  to  read  In- 
to the  statute  words  that  the  Legislature  has 
taken  pains  to  omit.  The  legislation  of  1899 
is  a  precedent  to  the  contraiy.  The  Legis- 
lature In  that  year  omitted  from  paragraph  2 
as  it  then  stood  the  proviso  "that  no  repre- 
sentation shall  be  admitted  among  collaterals 
after  brothers'  and  sisters'  children."  Tbe 
omission  caused  serious  difficulty  In  Smitti 
y.  McDonald,  but  no  one  was  hardy  enough 
to  suggest  that  we  should  interpolate  words 
tbe  Legislature  bad  omitted  in  order  to 
make  tbe  act  correspond  with  our  Ideas  of 
Justice  and  equality.  Whatever  argument  In 
favor  of  the  Justice  of  a  method  of  distribu- 
tion can  be  drawn  from  its  antiquity  and 
continuous  and  unbroken  existence  had  to 
give  way  then  as  now  to  the  will  of  the 
Legislature.  Tbe  decree  must  be  reversed 
and  the  record  remitted  in  order  that  a  de- 
cree may  be  entered  dividing  the  estate 
equally  between  the  two  surviving  brothers. 
Costs  will  properly  be  paid  out  of  tbe  estate. 

The  CHIEF  JUSTICE  and  GARRISON, 
SWAYZH.  TRENCHARD,  BERGEN,  MIN- 
TURN,  HEPPENHETMER,  TAYLOR,  and 
GARDNER,  JJ.,  concur.  KALISCH,  BLACK 
WHITE,   and   WILLIAMS,  JJ.,  dissent. 


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GAFFNET  ▼.  ILLINGSWORTH 


243 


(90  N.  J.  Law.  4M) 

GAFFNET  ▼.  ILUNGSWORTH.     (No.  66.) 

(Court  of  Brrors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(Syttalmt  by  the  Court.) 

1.  New  Tbial  «=s>75a),  16ia)— Grounds  — 
Inadequate  Damages— Terms. 

Under  the  practice  act  of  1912  (P.  L.  p.  877, 
i  32)  and  rules  72  and  73  annexed,  and  Su< 
preme  Court  Kules  1913,  Nos.  131,  132,  and 
219,  a  judge  of  the  circuit  court  has  power  to 
grant  a  new  trial  because  of  inadequate  damages 
awarded  by  the  verdict  of  a  jury,  and,  under 
rule  No.  122,  to  impose  terms  that,  If  the  de- 
feated party  pays  a  certain  sum  within  a 
specified  time,  the  rule  to  show  cause  why  a 
new  trial  should  not  be  granted  shall  be  dis- 
charged, otherwise  made  absolute.  Semble,  that 
the  trial  court  could  impose  such  terms  without 
the  aid  of  statute  or  role  of  court. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  |8  161.  321.] 

2.  Appeal  and  Erbos  «=s>70(9)— New  Tbiai, 
e=>6— Okdebs  Afpealabu!  —  Gbamtiro  or 
New  Trial. 

The  granting  of  a  new  trial  rests  In  the 
Bound  discretion  of  the  trial  court,  and,  as  it 
does  not  settle  definitively  the  rights  of  the  par- 
ties, it  is  not  appealable. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
firror,  Cent  Dig.  )  378;  New  Trial,  Cent  "Dig. 
H  9,  io.] 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  John  Gaffney  against  William 
H.  lUingsworth.  Judgment  for  plaintiff,  and 
defendant  appeals.    Affirmed. 

M.  Casewell  Heine,  of  Newark,  for  appel- 
lant Grosken  &  Morlarty,  of  Newark,  for 
appellee. 

WAIiEEB,  Chancellor.  This  action  was 
brought  In  the  Essex  county  circuit  court  for 
damages  for  personal  injury  suffered  by  the 
alleged  negligence  of  defendant  It  was  tried 
before  Judge  Dungan,  and  resulted  in  a 
verdict  for  the  plaintiff  In  the  sum  of  $190.- 
25,  and  costs.  Rules  to  show  cause  were 
taken  by  plaintiff  and  defendant  respective- 
ly, and,  upon  argument,  the  court  discharged 
defendant's  rule  and  made  an  order  granting 
to  plaintiff  a  new  trial  as  to  damages  only, 
provided  that,  if  the  defendant  paid  $480.50 
within  ten  days,  the  plaintiff's  rule  should 
be  discharged.  The  defendant  did  not  make 
the  payment,  and  the  plaintifTs  rule  became 
absolute  The  propriety  of  the  circuit  court 
judge's  action  in  this  regard  Is  drawn  in 
question  by  the  appeal. 

[1]  The  defendant  argues  that  upon  com- 
mon-law principles  a  trial  court  has  no  power 
to  set  aside  a  verdict  as  Inadequate  and  to 
grant  a  new  trial  as  to  damages  only.  With- 
out pausing  to  consider  the  force  of  these 
particular  objections,  a  perfect  answer  is 
found  ta  the  practice  act  of  1912  (P.  L.  p. 
377),  which  provides,  in  section  32,  that  the 
Supreme  Court  shall  prescribe  rules  for  that 
court  and  for  the  circuit  and  common  pleas 
(«arts,  and  that  such  rules  shall  supersede 
(so  far  as  they  conflict  with)  statute  and 


common-law  regulations  theretofore  existing, 
and  that  mitll  such  rules  be  made  the  rules 
thereto  annexed  shall  be  deemed  the  rules 
of  the  court  Rules  72  and  73,  at  page  397, 
are  as  follows: 

"72.  In  -case  a  new  trial  is  granted  it  shall 
only  be  a  new  trial  of  the  question  or  question* 
with  respect  to  which  the  verdict  or  decision 
is  found  to  be  wrong,  if  separable. 

"73.  When  a  neiw  trial  is  ordered  because  the 
damages  are  excessive  or  inadequate,  and  for  no 
other  reason,  the  verdict  shall  be  set  aside  only 
in  respect  of  damages,  and  shall  stand  good  n 
all  other  respects." 

The  Supreme  Court  in  1913  made  rules  to 
take  effect  December  1,  1913,  and,  among 
them,  adopted  rules  72  and  73  annexed  to  the 
practice  act  of  1912,  making  them  rules  131 
and  132  of  those  then  promulgated,  and  pro- 
vided in  rule  219  that  the  rules  of  the  Su- 
preme Court  should,  so  far  as  appropriate, 
be  applicable  to  the  practice  of  the  several 
circuit  courts.  The  appropriateness  and  ap- 
plicability of  these  rules  cannot  be  doubted. 
Therefore  the  trial  Judge  had  the  right  to 
grant  a  new  trial  on  the  sole  question  of  the 
inadequacy  of  the  damages  by  virtue  of  the 
statute  and  rules  mentioned,  the  question  of 
damages  being  clearly  separable  from  that  of 
liability,  and  the  only  question  remaining  is : 
Had  he  the  power  to  couple  the  rule  for  a 
new  trial  with  terms,  namely,  that  if  the  de- 
fendant paid  a  certain  sum  within  a  specified 
time,  the  rule  should  be  discharged? 

Counsel  for  appellant  contends  that  the 
imposition  of  the  terms  mentioned  upon  the 
defendant  was  unwarranted.  He '  cites  no 
authority  to  sustain  this  proposition. 

Quite  aside  from  any  question  of  the  Court's 
inherent  power  to  Impose  terms,  the  appel- 
lant is  here  again  met  with  a  positive  rule 
of  the  Supreme  Court  which  provides  that 
the  Judge  to  whom  an  application  for  a  rule 
to  show  cause  whether  a  new  trial  should 
be  granted  shall  exercise  the  same  discretion 
in  granting  such  rule  as  was  then  ecerdsed 
by  the  court,  and  shall  prescribe  the  terms, 
that  is,  the  terms  upon  which  the  rule  may  be 
granted.    Supreme  Court  Rules  1913,  No.  122. 

The  power  of  the  court  in  granting  a  new 
trial  upon  the  ground  that  the  damages  are 
excessive,  upon  terms  that  a  new  trial  shall 
be  had  unless  the  plaintiff  will  accept  a  cer- 
tain sum  named,  less  than  that  awarded  by 
a  verdict,  is  too  well  established  to  be  ques- 
tioned. It  would  seem  to  follow,  by  parity 
of  reasoning,  that  whoi  a  new  trial  is  granted 
because  the  damages  are  Inadequate,  the 
court  may  impose  like  terms,  that  is,  terms 
to  the  effect  that  If  the  defeated  party  will 
pay  a  certain  sum  greater  than  that  award- 
ed by  the  verdict,  the  rule  will  be  discharged, 
subject,  doubUess,  to  the  power  of  an  appel- 
late court  to  vacate  any  such  terms  when 
they  appear  to  be  an  abuse  of  discretion.  No 
such  showing  is  made  on  the  record  before 
us;  and  this  makes  it  inappropriate  for  us 
to  give  consideration  to  the  appellant's  other 


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contention,  namely,  that  the  verdict,  as  It 
stands.  Is  adequate  and  proper  and  eylnces 
no  prejudice  or  partiality  on  the  part  of  the 
Jury.  As  to  whether  or  not  the  verdict  Is  ade- 
quate and  proper  is,  on  application  for  a 
new  trial,  a  matter  of  sound  discretion  in 
the  trial  court,  and,  in  the  absence  of  an 
abuse  of  discretion,  the  appellate  court  can- 
not review  the  trial  court's  action.  And  with 
the  question  of  damages,  apart  from  such  dis- 
cretion, we  have  nothing  to  do. 

[2]  These  views  lead  to  an  affirmance.  But 
affirmance  also  is  to  be  rested  upon  another 
ground,  namely,  that  the  order  under  review 
is  not  appealable. 

An  appeal  which  was  substituted  by  the 
practice  act  of  1912  for  a  .writ  of  error  lies 
only  when  the  decision  sought  to  be  reviewed 
has  not  proceeded  from  a  matter  resting 
in  discretion,  but  has  settled  definitively  in 
the  suit  or  proceeding  the  rights  of  the  par- 
ties. Eames  v.  Stiles,  31  N.  J.  Law,  490,  494 ; 
Defiance  Fruit  Co.  v.  Tox,  76  N.  J.  Law,  486, 
70  Atl.  460;  Knight  v.  Cape  May  Sand  Co., 
83  N.  J.  Law,  59T,  83  Atl.  964 ;  Hanford  v. 
Duchastel,  87  N.  J.  Law,  205,  93  Atl.  586.  The 
proceedings  of  the  circuit  court  in  a  common- 
law  action  are  reviewable  only  after  final 
judgment  Taylor  Provision  Co.  v.  Adams 
Bip.  Co.,  72  N.  J.  Law,  220,  65  Ati.  608. 

It  Is  obvious  that  the  decision  In  question 
does  not  definitively  settle  the  rights  of  the 
parties  in  the  cause.  A  finality  would  eventu- 
ate from  a  Judgment  resulting  from  a  new 
trial  granted.  Besides,  as  stated,  the  ques- 
tion of  granting  a  new  trial  is  a  matter  of 
sound  discretion.  3  Bl.  Com.  392.  That  the 
granting  of  a  new  trial  rests  in  the  discretion 
of  the  court  Is  fully  established  by  all  au- 
tborities.  Hllllard  on  New  Trials,  {  6,  citing 
Gray  v.  Bridge,  11  Pick.  (Mass.)  189,  .wherein, 
at  page  191,  it  is  held  that  the  decision  of 
that  question  Is  not  appealabla  And  our 
Supreme  Court,  in  Mitchell  v.  Erie  B.  R.  Co., 
70  N.  J.  Law,  181,  at  page  183,  56  AtL  236, 
held  that  in  the  circuit  courts  the  matter  of 
granting  a  new  trial  is  discretionary  and  not 
reviewable  upon  error. 

The  judgment  under  review  will  be  affirm- 
ed, with  costs. 

(90  N.  J.  Law,  206) 

JEROLAMON  T.  TOWN  OF  BELLEVILLE. 
(No.  159.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(SyUahut  lu  the  Court.) 
1,  Municipal  Corporations  ®=>835 — Divbb- 

SION    OF    SUBPACE    Water— LlABILITT. 

A  municipality  has  no  rigbt,  by  artificial 
drains,  to  divert  surface  water  from  the  course 
it  would  Otherwise  take,  and  cast  it,  in  a  body 
large  enough  to  do  sub.stantial  injury,  on  land 
where,  but  for  such  artificial  drains,  it  would 
not  go. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  §  1785.] 


2.  Trial  €=>54(1)— Receptiow   of  Evidencb 

—Good  in  Part. 
Evidence  legal  for  some  purpose  cannot  be 
excluded  because  a  jury  may  erroneously  use  it 
for  another  purpose.  The  opposite  party's  pro- 
tection against  tltis  is  to  ask  for  cautionary  in-, 
struction. 

[E5d.  Note. — For  other  cases,  see  Trial,  Cent. 
Dig.  i  126.] 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  Theodore  Jerolamon  against  the 
Town  of  Belleville.  Judgment  for  plaintift, 
and  defendant  appeals.    Affirmed. 

Harold  A.  Miller,  of  Newark,  for  appellant. 
Pitney,  Hardin  &  Sliiimer,  of  Newark,  for  ap- 
pellee. 

PARKER,  J.  The  wilt  was  for  overflowing 
plaintlfiCs  lands  by  water,  and  the  complaint, 
in  two  coimts,  alleged  two  different  dates 
when  such  overflow  occurred.  The  Jury 
found  for  plaintiff  in  the  sums  of  $179.18  on 
the  first  count,  and  $2,935.66  on  the  second 
count 

Plaintiff  was  the  owner  and  occupier  of  a 
coal  and  lumber  yard  on  the  northwest  cor- 
ner of  Gortlandt  and  Jerolaman  streets  In 
Belleville.  Jerolaman  street  runs  substan- 
tially east  and  west  One  block  west  of  Cort- 
landt  street,  and  running  jtarallel  with  it  Is 
the  Paterson  &  Newark  branch  of  the  Erie 
Railroad.  A  block  further  west  op  a  sharp 
grade,  la  Washington  avenue,  an  Important 
highway  between  Newark  and  Paterson. 
Next  west  of  Washington  avenue,  and  still 
further  up  the  hill.  Is  Linden  avenue.  North 
of  Jerolaman  street  and  east  of  Linden  ave- 
nue was  a  spring,  whose  overflow  ran  gener- 
ally slightly  south  of  east  always  to  the 
north  of  Jerolaman  street  passing  under 
Washington  avenue  down  the  hill,  under  the 
railroad  through  a  culvert  and  across  plaln- 
tUTs  lands  to  the  corner  of  Jerolaman  and 
Oortlandt  streets  and  60  to  the  Passaic  river. 
Previous  to  the  occurrences  giving  rise  to  the 
suit  the  town  had  adopted  a  general  plan  of 
regrading,  which  involved,  among  other 
things,  the  elimination  of  a  "hump"  In  Jerol- 
aman street  above  Washington  avenue,  which 
had  retarded  the  flow  of  water  down  the  hill; 
and  these  changes,  as  claimed  by  plaintiff, 
led  to  the  flooding  of  Jerolaman  street  in 
heavy  rains,  which  resulted  in  cutting  gullies 
and  carrying  away  of  soil,  so  that  the  town 
undertook  to  prevent  this  by  banking  the  east 
side  of  Wjashington  avenue,  which  prevented 
the  water  from  running  down  Jerolaman 
street  and,  as  plaintiff  claimed,  turned  It  In 
large  measure  Into  the  natural  water  course 
already  described. 

The  case  presented  onder  the  first  count 
was  that  In  the  storm  conditions  of  Novem- 
ber 11,  1911,  this  artificial  diversion  caused 
an  ovcrfiow  of  plaintiff's  land,  whereby  he 
was  damaged.  Hie  second  count,  as  amend- 
ed, rested  on  the  same  acts  of  defendant  In 


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JKROIiAMON  T.  TOWN  OF  BELLEVIIyljE 


245 


dlTertlng  the  water,  and  In  addition  charged 
that  early  in  1912  the  town  connected  the 
natural  water  course  with  a  covered  drain 
jnst  east  of  plalntiff'B  premises,  and  put 
catdi-hars  across  the  opening,  so  that  la 
March,  1912,  during  storm  conditions,  the  ex- 
cessive volume  of  diverted  water  flooded 
plaintiff's  premises  as  before,  and  In  addition 
the  opening  of  the  covered  drain  became 
blocked  by  dfibris  caught  by  the  bars,  and  the 
water  backed  up  on  plaintiff's  premises. 

[1J  1.  There  was  a  motion  to  nonsuit  on 
each  count,  and  It  is  now  urged  that  there 
should  at  least  have  been  a  nonsuit  as  to  the 
first  count  For  this  the  case  of  Miller  v. 
Morristown,  47  N.  J.  Bq.  62,  20  AU.  61,  affirm- 
ed in  this  court  In  48  N.  J.  Eq.  645,  25  AtL 
20,  is  relied  on  as  the  leading  authority.  The 
argument  proceeds  on  the  assumption  that 
plaintiffs  evidence  showed  nothing  more  than 
a  regradlng  of  streets  and  diversion  of  water 
consequent  thereon.  If  this  were  true,  de- 
fendant's point  would  be  well  taken  under 
the  first  branch  of  the  Miller  Case;  but  the 
evidence  tends  to  show  In  addition,  and  the 
jury  evidently  found,  that  water  flowing 
down  Jerolaman  street  had  been  Intention- 
ally diverted  therefrom  by  special  provision 
for  that  purpose  and  thrown  on  plalntUTs 
land.  This  was  a  very  different  thhig  from 
mere  r^radlng,  and  brought  the  case  under 
the  second  branch  of  the  Miller  Case,  where 
It  was  held  that  such  conduct  is  an  actionable 
Injnry.  The  law  was  stated  by  the  court  in 
the  precise  language  of  the  syllabus  to  the 
case  cited,  on  both  branches,  and  the  Jury 
was  justified  In  finding  that  the  conditions  of 
the  second  proposition  were  met.  The  same 
rule  was  laid  down  by  this  court  In  the  later 
case  of  Kehoe  v.  Eutherford,  74  N.  J.  Law, 
659,  65  AO.  1046,  122  Am.  St  Rep.  411,  where 
the  conditions  closely  approximated  those  In 
the  case  at  bar.  If  the  plaintiff's  evidence 
were  believed,  the  defendant  for  its  own  con- 
venience diverted  the  water  naturally  flowing 
down  Jerolaman  street  and  turned  it  over  the 
plaintiCTs  land.  This  it  had  no  right  to  do 
without  making  proper  compensation. 

2.  The  same  considerations  dispose  of 
the  point  that  there  should  have  been  a  direc- 
tion of  verdict  for  the  defendant  There  was 
a  fair  conflict  of  evidence,  and  a  direction 
w^ould  have  been  improper. 

[2]  3.  Error  is  further  charged,  in  that  the 
court  permitted  evidence  of  changes  made  by 
defendant  in  the  drainage  system  after  the 
Injuries  complained  of.  Ordinarily  it  may  be 
conceded  such  evidence  is  irrelevant  and  In- 
Jarlons,  in  tending  to  operate  as  an  admission 
of  guilt  In  the  present  case,  however,  it 
came  in  on  the  cross-examination  of  defend- 
ant's engineer,  who  had  denied  In  his  testi- 
mony that  the  flood  water  had  mn  down  the 


street  in  any  such  quantity  as  to  do  material 
damage  on  the  roadway  and  lead  defendant 
to  provide  for  it  in  other  ways.  This  was  a 
material  point  in  plaintiffs  case,  and  to  meet 
it  he  was  enUUed  to  bring  out  that  defend- 
ant had  taken  care  of  this  storm  water  by  a 
special  sewer;  the  inference  of  course  b^ng 
that  unless  there  were  a  material  amount  of 
storm  water,  the  culvert  would  not  have  been 
built,  and  its  building  was  evidential  of  the 
incorrectness  of  the  witness'  statement.  In 
this  aspect  It  was  competent;  Its  incidental 
harmfulness,  as  tending  to  show  an  admis- 
sion ofi  liability,  could  and  should  have  been 
met  by  a  proper  request  to  limit  its  applica- 
tion In  the  charge.  Trenton  Pass.  Railway 
Oo.  V,  Cooper,  60  N.  J.  Law,  219,  223,  37  AO. 
730,  88  L  R.  A.  637,  64  Am.  St  Bep.  692; 
Perry  v.  Levy,  87  N.  J.  Law,  670,  94  AtL  569. 

4.  Finally,  it  is  claimed  that  the  court 
erred  in  charging  the  Jury  as  follows  in  re- 
sponse to  plaintiffs  request: 

"If  the  jury  find  that  at  the  time  complained 
of,  water  which,  in  its  natural  course,  accord- 
ing to  the  grade  of  streets  and  levels  of  adja- 
cent proper^,  wonld  not  have  reached  plaintiS's 
land,  was  artificially  collected  and  diverted  by 
the  town  to  the  plamtiffs  land,  to  his  damage, 
it  will  not  excuse  the  town  that  the  water  years 
before,  by  another  route,  had  reached  the  water 
course  that  ran  through  plaintiff's  land.  In 
other  words,  if  on  the  11th  of  (November,  1911, 
and  the  12th  and  13th  of  March,  1912,  water 
which  would  not  have  come  to  the  plaintiff's 
land  in  any  way  was  thrown  upon  it  the  fact 
that  at  some  prior  time  it  had  come  n^on  the 
plaintiff's  land  by  some  other  course  is  past 
history,  which  does  not  concern  the  court  and 
jury." 

The  objection  to  this  instmction,  stated  in 
the  language  of  appellant's  brief.  Is  this: 

That  the  jury  were  told  "that  they  were  not 
concerned  with  the  question  whether  the  same 
volume  of  water,  from  the  same  sources,  prior 
to  the  acts  of  defendant  would  or  would  not 
have  reached  plaintiff's  land  by  the  natural  wa- 
ter courses  of  the  surrounding  country." 

If  by  "acts  of  defendant"  counsel  means 
the  general  system  of  regradlng,  rather  than 
the  particular  act  of  diversion  at  the  crossing 
of  Washington  avenue,  the  charge  was  cor- 
rect If,  as  was  held  in  Miller  v.  Morristown, 
the  town  might  lawfully  adopt  a  new  set  of 
grades  cansing  incidental  changes  in  drain- 
age, it  Is  that  system,  and  not  the  natural 
drainage  of  an  uninhabited  country  to  which 
owners  are  to  conform  and  which  they  are 
entitled  to  assume  will  be  maintained.  If  by 
"acts  of  defendant"  the  particular  diversion 
is  meant,  we  answer  that  a  reading  of  the 
instruction  will  demonstrate  that  no  such  in- 
terpretation as  that  indicated  by  appellant 
can  reasonably  be  placed  upon  it;  (or  the 
comparison  Is  between  the  "natural  course 
according  to  the  grade  of  streets  and  levels 
of  adjacent  property"  and  the  "artificial  co^ 
lection  and  diversion  to  plaintiffs  land." 
Hie  Judgment  will  be  affirmed. 


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246 


101  ATLAMTIO  RBPORTBB 


(N.J. 


(87  N.  J.  ai.  «M) 

TAUB  y.  TAUB.     (No.  lia) 

(OwMt  of  Brrorg  and  Appeals  of  New  Jeney. 

June  18,  1917.) 

(ByUahut  by  Ihe  Court.) 

Mahbiaoe  «=>58(1)  —  Repeai.  of  Statuti  — 

Anruuient. 
Paraxrapb  6  of  section  1  of  the  Divorce  Act 
•t  1907  (Act  May  17, 1907  [P.  L.  p.  474] ;  Comp. 
St.  1910,  p.  2022)  was  not  repealed  or  abrogated 
Mj  the  Marriaxe  Act  of  1012  (Act  March  27, 
^12  [P.  L.  p.  306]),  and  that  paragraph  of  the 
iHvorce  Act  authorizes  the  annulment  of  a 
marriage  at  the  suit  of  the  husband  when  he  was 
under  the  age  of  18  at  the  time  of  the  marriage, 
atjd  when  the  marriage  had  not  been  confirmed 
by  him  after  arriving  at  such  age,  even  though 
his  parents  consented  to  the  marriage  in  the 
form  prescribed  by  the  Marriage  Act,  and  even 
though  it  be  inferred  from  the  evidence  that  at 
tfae  time  of  the  marriage  he  intended  to  dis- 
affirm it  upon  reaching  the  age  of  18. 

[Bd.  Note. — For  other  cases,  see  Marriage, 
Cent  Dig.  {{  115,  118.] 

Appeal  from  Court  of  Chancery. 

Petition  by  Stanley  J.  Taub  against  Mar^ 
garet  Pangbam  Taub  for  the  annulment  of 
a  marriage.  From  a  decree  of  the  Court  of 
CXiancery  dismissing  the  petition,  petitioner 
appeali).  Reversed,  and  record  remitted  to 
ODurt  of  (Thancery  for  the  entry  of  a  de- 
cree annulling  the  marriage. 

Michael  T.  &  Hugh  a  Barrett  and  Roy  V. 
Anthony,  all  of  Newark,  for  appellant  C!oQ- 
dict,  0>ndict  &  Boardman,  of  Jersey  (3lty, 
for  respondent. 

TRBNCHARD,  J.  This  is  the  husband's 
appeal  from  a  decree  dismissing  bis  petition 
for  the  annulment  of  his  marriage. 

The  appellant  and  respondent  were  mar- 
ried in  this  state  on  April  22,  1915,  by  a  min- 
ister of  the  gospel.  At  the  time  of  the  mar- 
riage the  appellant  was  under  the  age  of  18 
years.  He  reached  that  age  June  22,  191S. 
The  respondent  was  20  years  of  age.  The 
parties  did  not  reside  together  after  the  mar- 
riage. The  marriage  was  in  no  way  confirm- 
ed after  the  appellant  reached  the  age  of  18. 
On  July  10,  1915,  he  filed  his  petition  praying 
for  the  annulment  of  the  marriage  on  the 
ground  of  his  nonage  at  the  time  of  the 
ceremony.  The  learned  advisory  master  ad- 
vised a  decree  dismissing  the  petition  on  the 
ground  that  the  provisions  of  the  Divorce  Act 
authorizing  annulments  of  marriage  because 
of  nonage  of  the  parties  did  not  apply  where 
the  parents  of  the  minor  bad  consented  to 
the  marriage.  It  Is  from  that  decree  dismiss- 
ing the  petition  that  this  appeal  is  talien. 
We  are  constrained  to  think  that  the  de- 
cree was  wrong. 

The  proceeding  was  pursuant  to  paragraph 
6  of  section  1  of  the  Divorce  Act  (P.  L.  1907, 
p.  474;   C.  8.  p.  2022),  which  provides: 

"Decrees  of  nullity  of  marriage  may  be  ren- 
dered in  all  cases  •  *  ♦  6.  At  the  suit  of  the 
htiKtmnd  when  hp  was  under  the  age  of  eighteen 
at  the  time  of  the  marriage,  unless  such  mar- 


riage be  confirmed  by  him  after  arriving  at  such 
age." 

It  is  argued  that  this  provision  of  the 
Divorce  Act  has  been  repealed.  We  think 
not.  It  1b  not  contended  that  it  has  been 
cHiressIy  repealed.  But  it  is  argued  that  It 
has  been  repealed  because  inconsistent  with 
the  provision  in  section  8  of  the  Marriage 
Act  (P.  I..  1912,  p.  310).  which  reads  as  fol- 
lows: 

"If  any  such  male  applicant  for  a  license  to 
marry  shall  be  a  minor  under  the  age  of  twenty- 
one  years,  or  any  such  female  applicant  under 
the  age  of  eighteen  years,  such  license  shall  not 
be  issued  unless  the  parents  or  guardian  of  the 
said  minor,  if  there  be  any,  shall  first  certify 
under  their  hands  and  seals  in  the  presence  of 
two  reputable  witnesses,  their  consent  thereto; 
which  consent  shall  be  delivered  to  the  assessor, 
registrar  or  clerk  issuing  the  license.  If  the 
parents,  or  either  of  them,  or  guardian  of  any 
such  minor  shall  be  of  unsound  mind,  then  .^e 
consent  of  such  parent  or  guardian  to  the  pro- 
posed marriage  shall  not  be  required,"  etc. 

Since  in  the  present  case  the  parents  of 
the  appellant  consented  to  the  marriage  in  the 
form  prescribed  by  the  above  section.  It  be- 
comes necessary  to  determine  whether  or  not 
paragraph  6  of  section  1  of  the  Divorce  Act 
is  by  implication  repealed  pro  tanto,  to  the 
extent  of  the  alleged  repugnancy,  by  the 
abore-redted  provision  of  the  Marriage  Act. 
We  think  it  was  not. 

At  the  outset  It  is  to  be  remarked  that  a 
marriage  license  is  not  requisite  to  make  a 
valid  marriage.  A  marriage  performed  with- 
out a  license  for  that  purpose  is  as  valid  as 
one  performed  after  securing  the  proper  li- 
cense. The  provisions  of  the  Marriage  Act 
with  regard  to  licenses  both  for  minors  and 
for  others  are  penal  in  their  nature,  section 
10  providing  that,  if  any  person  having  au- 
thority to  solemnize  marriages  shall  perform 
any  marriage  ceremony  without  the  presenta- 
tion of  a  license  therefor,  obtained  in  accord- 
ance with  the  provisions  of  the  act,  he  shall 
be  deemed  guilty  of  a  misdemeanor.  P.  L. 
1912,  p.  311.  The  burden  is  thus  placed  on 
the  officer  performing  the  marriage  ceremony 
to  see  that  the  proper  legal  forms  have  been 
observed  but  if  such  oflScer,  through  de- 
sign or  oversight,  fails  to  require  the  produc- 
tion of  marriage  license,  the  marriaE:e 
nevertheless  is  a  binding  one.  The  license 
therefore  appears  to  be  merely  an  additional 
safeguard  against  hasty  and  ill-considered 
marriages  and  affects  in  no  way  the  validity 
of  the  marriage. 

Next  It  is  to  be  observed  that  the  provi- 
sions of  the  Marriage  Act  of  1912  requiring 
the  consent  of  the  parents  of  a  minor  l>e- 
fore  the  issuing  of  a  license  were  not  new 
legislation,  but  merely  re-enactment  of  pro- 
visions already  In  the  statutes.  Legislation 
on  this  subject  is  first  found  in  section  5  of 
"An  act  concerning  marriages,"  passed  March 
4.  1795  (Paterson's  Laws  p.  159),  and  the 
subsequent  legislation,  including  that  of  1912, 
is,  in  effect  a  mere  re-enactment  of  the  Pater- 


«=3For  other  case*  sae  Mme  topic  and  KBY-NDMBBR  In  all  Ker-Numbered  Digest*  and  ladezss 


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TAXJB  T.  TAUB 


247 


son  Act  It  Is  also  fonnd  In  P.  Ii.  1866,  p. 
960,  section  1  of  wbldi  provides  that  no  per- 
son bavlng  authority  to  Join  persons  together 
in  the  h<^  bonds  of  matrimony  shall  marry 
any  male  under  the  age  ot  21  years  or  fe- 
male under  the  age  of  18  years  unless  the 
parents  or  guardian  shall  be  present  and 
give  their  consent  thereto,  or  until  the  minor 
applying  to  be  married  shall  have  produced 
a  certificate  in  writing  under  the  hand  of  the 
parents  or  guardian.  And  section  2  provides 
that,  if  any  such  officer  shall  marry  any 
minor  without  the  consent  of  the  parents  or 
guardian,  such  officer  shall,  for  every  such  of- 
fense, forfeit  $300.  These  provisions  were 
Incorporated  in  the  revision  of  the  Marriage 
Act  of  1874  (Rev.  St  1874,  p.  459),  found  with 
various  slight  amendments  In  General  Stat- 
utes, p.  2003,  H  3,  4,  and  5. 

In  1902  the  Marriage  Act  was  again  re- 
vised (P.  I*  1902,  p.  400),  and  the  same  provi- 
sions were  incorporated,  forming  sections  3, 
4.  and  5.  Up  to  the  time  of  this  latter  act 
there  was  no  requirement  of  a  marriage  li- 
cense. In  this  revision,  however,  for  the  first 
time  appeared  provisions  requiring  the  ob- 
taining of  a  marriage  license.  Section  6,  etc. 
The  license  was  required  only  from  nonresi- 
dents. If  such  nonresident  was  a  male  un- 
der 21  years  or  a  female  under  18,  the  li- 
cense could  not  be  Issued  except  upon  the 
consent  of  the  parents  or  guardian.  Se(>- 
Hon  13. 

Thus  the  law  stood  until  the  act  was  re- 
vised in  1910  (P.  I*  1910,  p.  477;  C.  S.  p. 
3217).  In  this  revision  it  was  made  manda- 
tory that  a  license  be  secured  by  residents 
as  well  as  nonresidents.  Section  7  covered 
the  marriage  of  minors  and  contained  the 
same  provisions  with  regard  to  the  consent 
of  the  parents  before  the  issuing  of  a  license 
as  is  found  In  section  13  of  the  act  of  1902. 

So  we  find  that  the  present  Marriage  Act 
of  1912  (P.  h.  1912,  p.  306),  although  passed 
subsequent  to  the  T)lvoree  Act  of  1907,  is 
merely  a  revision  of  substantially  similar 
provisions  in  force  long  before  the  passage  of 
that  act.  It  was  not  a  new  expression  of  leg- 
islative intent  Inconsistent  with  the  earlier 
divorce  act,  and  under  well-settled  rules  ot 
statutory  construction  cannot  be  held  to  have 
worked  an  Implied  pro  tanto  repealer  of  that 
act 

I'he  advisory  master  held  that  it  was  not 
the  legislative  Intention  to  authorize  the  an- 
nulment of  the  marriage  of  a  minor  where 
the  parents  had  given  their  consent  in  the 
statutory  form.  But  clearly  this  Is  not  so. 
It  passed  the  Divorce  Act  of  1907  with  the 
provisions  of  the  Marriage  Act  before  it  rel- 
ative to  the  consent  of  the  parents  to  the 
marriage  of  minors.  There  is  nothing  in  the 
Divorce  Act  Itself  to  indicate  a  legislative  in- 
tent to  distinguish  between  marriages  of  mi- 
nors where  consent  was  given  and  those 
where  no  such  consent  was  obtained.  After 
providing  for  the  annulment  of  marriages  at 
the  mit  of  the  wife  when  under  16  at  the 


time  of  the  marriage,  when  not  oonflrmed, 
paragrai^  6  of  section  1  of  the  act  says  that 
marriages  may  be  annulled  "at  the  suit  of 
the  husband  when  he  was  under  the  age  of 
eighteen  at  the  time  of  the  marriage,  unless 
such  marriage  be  confirmed  by  him  after  ar- 
riving at .  such  age."  The  suit  is  to  be 
brought  at  the  option  of  the  husband,  and  his 
right  to  an  annulment  Is  to  be  barred  If  be 
has  confirmed  the  marriage  after  reaching 
the  age  of  18.  Speaking  now  without  regard 
to  the  rights  of  the  wife  to  an  annulment  in 
a  proper  case,  the  act  places  the  responsibil- 
ity on  the  husband ;  he  alone  can  confirm  the 
marriage  after  he  becomes  18,  and  he  alone 
can  disaffirm  It  and  begin  the  annulment  suit. 
His  parents  cannot  confirm  or  disaffirm,  nor 
can  they  apply  for  the  annulment.  With 
these  facts  in  mind,  it  is  clear  that  no  act  of 
the  parents  prior  to  the  marriage  can  make 
it  binding  against  the  will  of  the  husband. 
They  cannot  deprive  him  of  the  right  given 
him  by  statute  by  signifying  their  consent  to 
the  marriage. 

It  seems  plain,  therefore,  that  when  the 
lieglslature  said  that  "decrees  of  nullity  of 
marriage  may  be  rendered  at  the  suit  of  the 
busband  when  he  was  under  the  age  of  eight- 
een at  the  time  of  the  marriage,  unless  such 
marriage  be  confirmed  by  him  after  arriving 
at  such  age,"  it  meant  precisely  what  it  said, 
and  did  not  intend  to  limit  decrees  to  mar- 
riages without  the  consent  of  the  parents. 
Such  evidently  was  the  view  of  Vice  Chancel- 
lor Stevens.  In  Williams  v.  Brokaw,  74  N.  J. 
Eq.  561,  70  Atl.  665,  speaking  with  reference 
to  the  Divorce  Act  of  1907,  he  said: 

"If  hereafter  any  person  shall  be  ao  ill-advised 
as  to  enter  into  a  marriage  with  an  infant  un- 
der the  prescribed  age,  he  or  she  will  do  it  with 
the  kaowledge  that  the  relationship  can  be 
terminated  at  the  mere  will  of  the  infant" 

Such  also  seems  to  have  been  the  opinion 
of  Vice  Chancellor  Stevenson.  In  Iltsworth 
V.  Titsworth,  78  N.  J.  Bq.  47,  78  Atl.  687,  he 
thus  speaks  of  the  act  of  1907: 

"Under  our  statute,  if  there  be  issue,  the  same 
will  be  les^timate,  and  I  think  the  view  is  a 
correct  one,  that  in  a  case  like  this  a  decree 
of  nullity  operates  practically  to  render  v<^d  at 
the  time  of  its  rendition  what  up  to  that  time 
was  a  valid,  but  voidable,  marriage,  and  thus 
amounts  to  a  decree  of  divorce  a  vinculo.  Young 
men  under  18  years  of  age  are  thus  permitted  to 
contract  a  'trial  marriage,'  and  if  the  wife  be 
above  16  years  of  age,  it  will  be  optional  with 
the  husband  alone  to  affirm  or  diBaffirm  the  ' 
marriage  when  Be  shall  reach  the  age  ot  18 
years.  •  •  •  Bhjt  while  I  concur  in  the 
views  of  this  sort  of  legislation  indicated  by  Mr. 
Bishop  (1  Bish.  Mar.  &  D.  fg  564,  666),  even 
when  Innocent  children  may  not  be  bastardized, 
the  dutv  of  the  court,  of  course,  is  perfectly 

?ilain,  VIZ,  to  enforce  this  statute  in  every  caae 
airly  brought  within  it  without  venturing  to 
Impugn  the  wisdom  or  the  policy  ot  the  law.' " 

It  is  argued  that  the  appellant  Intended,  at 
the  time  of  the  marriage,  to  disaffirm  it  upon 
reaching  the  age  of  18,  and  it  Is  contended 
that  to  permit  him  to  do  so  would  work  a 
fraud  both  upon  the  wife  and  the  state.  But 
it  Is  enough  to  say  in  disposing  of  this  oon- 


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101  ATLANTIC  REPORTER 


(N.J. 


tention  that  the  wife  la  presumed  to  have 
known  the  Uiw,  and  the  state  by  the  statute 
baa  declared  In  effect  that  it  does  not  care  to 
enforce  any  public  policy  keeping  marriages 
indissolvable  contracted  under  the  drcum- 
Btances  of  the  present  case. 

The  decree  below  will  be  reversed,  with 
costs,  and  the  record  remitted  to  the  Court 
of  Chancery  for  the  entry  of  a  decree  of  an- 
nulment of  the  marriage. 

(90  N.  J.  t*w,  707) 

MAXWELIi  et  al.  t.  EDWARDS,  State 
Comptroller,  et  al.     (No.  lOS-^lA.) 

(C!ourt  of  Errors  and  Appeals  of  New  Jtneg. 
June  18,  1917.) 

Appeal  from  Supreme  Court 

Certiorari  by  liawrence  Maxwell  and  others 
against  Edward  I.  EVlwards,  Comptroller  of  the 
Treasury  of  the  State  of  New  Jersey,  and  oth- 
ers, to  review  an  assessment  of  a  transfer  tax. 
From  a  judgment  by  the  Supreme  Court  (99  Atl. 
138),  affirming  the  tax,  prosecutor  appeals. 
Affirmed. 

Coult  ft  Smith,  of  Newark,  and  Edward  De 
Witt,  of  New  York  City,  for  appellants.  John 
W.  Wescott,  Atty.  Gen.,  and  John  R.  Hardin, 
of  Newark,  for  appellees. 

PER  CURIAM.  The  constitutionality  of  the 
act  of  April  9.  1914  (P.  I*  1914,  p.  267),  amend- 
ing the  inheritance  tax  law  of  April  20,  1909 
(P.  U  1909,  p.  325),  has  been  sustained  by  the 
supreme  Court  in  an  opinion  by  Mr.  Justice 
Mintum.  Maxwell  v.  Edwards,  80  N.  J.  I^aw, 
446,  09  Atl.  138.  Nothing  need  be  added  there- 
to on  the  constitutionality  of  the  act,  but  it  is 
important  that  the  facts  illustrating  the  method 
by  which  the  transfer  inheritance  tax  was  levied 
in  this  case  may  be  amplified  somewhat;  thus, 
the  return  to  the  writ  of  certiorsri  shows  the 
appraised  value  of  the  entire  estate,  wherever 
situate,  was  ascertained  and  fixed  at  $3,969,- 
3:^3.25.  From  this  amount  was  deducted  $328,- 
914.04,  being  the  appraised  value  of  the  New 
Jersey  stocks  specifically  bequeathed  to  the  wid- 
ow and  stranger,  leavmg  $3,640,419.21,  from 
which  figure  was  deducted  $270,813.17,  being 
the  amount  allowed  for  debts,  administration  ex- 
penses, etc.,  leaving  a  net  estate  of  $3,369,- 
606.04 ;  from  this  net  estate  was  deducted  lega- 
cies bequeathed  under  the  will,  together  with 
legacies  to  beneficiaries  in  the  5  per  cent,  class 
and  the  interest  of  the  widow  in  the  estate,  oth- 
er than  New  Jersey  stocks  specifically  bequeath- 
ed, amounting  to  $651,474.26,  leaving  a  residu- 
ary estate  of  $2,718,131.79. 

The  appraised  value  of  the  New  Jersey  stocks 
specifically  bequeathed  to  the  widow  was  ascer- 
tained to  be  $246,685.53,  and  the  rate  of  taxa- 
tion assessed  thereon  is  1  per  cent.,  1'%  per 
cent,  and  2  per  cent.,  making  the  tax  due  this 
state  on  this  specific  bequest  to  the  widow 
$3,933.71.  The  appraised  value  of  the  New 
Jersey  stock  specifically  bequeathed  to  the  stran- 
ger was  ascertained  at  $82,228.51,  and  the'  rate 
of  taxation  on  the  value  of  this  bequest  is  6  per 
cent,  making  the  amount  of  tax  due  $4,111.42. 
The  appraised  value  of  the  New  Jersey  stocks 
owned  by  the  decedent  at  the  time  of  death  was 
$1,114,966;  from  this  appraised  value  was  de- 
ducted the  appraised  value  of  the  New  Jersey 
stocks  specifically  bequeathed  to  the  widow  and 
stranger,  amounting  to  $328,914.04,  leaving  the 
net  appraised  value  of  the  New  Jersey  proper- 
ty, which  formed  s  portion  of  the  general  assets 
of  the  estate,  at  $786,050.96.  The  method  em- 
ployed in  ascertaining  the  tax  due  this  state, 


on  the  transfer  of  the  shares  of  stock  of  the 
New  Jersey  corporations  not  specifically  be- 
queathed, is  as  follows:  The  amount  of  legacies, 
etc.,  passing  to  beneficiaries  taxed  flt  the  rate 
of  5  per  cent  was  determined  at  $356,761.26, 
making  the  tax  due  thereon  at  the  rate  of  5 
per  cent  $17,83&08.  The  interest  of  the  widow 
in  the  estate,  other  than  shares  of  New  Jersey 
stocks  specifically  bequeathed,  was  determined  to 
be  $2i>l,712.99,  and  the  statutory  exemption  of 
$5,0OO  was  deducted  and  the  tax  at  ue  rate 
of  2  per  cent  and  3  per  cent  was  $8,658.24. 
The  residuary  estate  was  taxed,  as  passing  to 
the  son  and  two  grandchildren  and  determined 
to  be  $2,718,131.79,  and  the  statutory  exemp- 
tion of  $6,000  to  each,  totaling  $16,000,  was 
deducted,  and  the  balaince  taxed  at  the  rate 
of  1  per  cent,  1^  per  cent,  2  per  cent,  and 
3  per  cent,  making  the  tax  on  the  residuary 
estate  $70,893.95. 

The  total  amount  of  tax  on  the  interest  of  the 
collateral  heirs  and  the  amount  passing  to  the 
widow,  together  with  the  residuary  estate  pass- 
ing to  the  son  and  grandchildren,  as  set  torth 
above,  total  $97,390.25.  The  percentage  or  pro- 
portion of  the  New  Jersey  stocks  (not  specifical- 
ly bequeathed),  which  total  jf786.0!50.96,  bears  to 
the  entire  estate  (less  specific  bequests  of  New 
Jersey  stocks),  which  totals  $3,640,419.21,  was 
determined  to  be  .2159  thns: 

$3,640,419.21)  $786,050.96  (.2159. 

This  percentage  or  proportion  of  $97,390.25, 
which  is  the  tax  that  would  have  been  due  if 
the  decedent  had  died  a  resident  of  this  state 
and  all  bis  property  had  been  located  here 
equals  $21,026.55.  The  total  amount  of  tax, 
as  set  forth  above,  which  included  the  tax  on 
the  New  Jersey  stocks  specifically  bequeathed  to 
the  widow  and  stranger  and  the  New  Jersey 
stock  which  forms  a  portion  of  the  general  as- 
sets of  the  estate,  totals  $29,071.68,  the  amount 
of  the  tax. 

The  Judgment  of  the  Supreme  Court  is  afSrm- 
ed.  wiu  costs. 

(W  N.  J.  Item,  630) 

TITLE  GUARANTY  &  SURETY  CO.  T. 

FUSCO  CONST.  CO.  et  ah 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

rSyttabut  (v  the  CourtJ 

Pbinoipai.  and  Sttrett  «=9l90(9)  —  StrRKXT 

BoWD— Action  ro»  PaKMnjus. 
The  plaintiff  in  consideration  of  the  execu- 
tion of  an  agreement  of  indemnity  to  it  by  de- 
fendants executed  a  surety  bond  to  the  town  of 
Harrison,  N.  Y.,  for  the  due  performance  of  the 
contracts  of  the  defendant  company  with  the 
town. 

The  indemnity  agreement  provided  for  the 
payment  of  annual  premiums  during  the  contin- 
uance of  the  work,  and  the  payment  of  inciden- 
tal expenses  in  case  of  suit 

The  only  affirmative  defense  pleaded  was  that 
the  contracts  were  completed  before  the  ma- 
turing of  the  annual  premium  sued  for.  _  The 
proof  showed  otherwise,  and  no  contradiction 
of  the  substantial  allegations  of  the  plaintiff's 
loss  being  apparent,  the  trial  court  directed  a 
verdict  for  the  plaintiff.  Held,  upon  review  of 
the  testimony,  that  the  action  of  the  trial 
court  was  not  erroneous, 

Ai>peal  from  Supreme  Court 

Action  by  the  Title  Guaranty  ft  Surety 
Oonip&ny  against  the  Fusco  Construction 
Company  and  another.  Judgment  for  plain- 
tiff, and  defendants  appeal.    Affirmed. 

Charles  M.  Mason,  of  Newark,  for  appel- 
lants.   Cohn  &  Cohn,  of  Paterson,  for  appellee. 


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N.J^ 


GOLDSTEIN  v.  QOIiDSTEIN' 


249 


MINTURN,  J.  The  plalnHff,  a  foreign  cor- 
poration, brought  suit  against  defendants,  the 
defendant  company  being  a  corporation  of 
this  state,  to  recover  premiums  due  on  three 
bonds  given  by  the  plaintiff,  as  surety  for  the 
Fusco  Construction  Company,  to  the  town  of 
Harrison,  in  the  state  of  New  York,  to  en- 
sure the  completion  of  certain  contracts  en- 
tered into  by  the  construction  company  with 
the  town,  for  the  construction  of  a  sanitary 
«ewer  system  therein. 

The  allegation  of  the  complaint  Is  that  In 
consideration  of  the  plaintiff's  suretyship,  the 
defendants  agreed  in  writing  with  the  plain- 
tiff to  pay  in  cash  the  wnnuM]  premium  upon 
each  of  said  bonds,  and  to  continue  the  pay- 
ment of  the  same  until  the  plaintiff  should  be 
discharged,  according  to  law,  from  all  liabil- 
ity upon  the  obligations.  The  agreement  also 
contained  a  provision  of  indemnity,  in  virtue 
of  which  the  plaintiff  was  to  be  saved  liarm- 
less  from  any  loss  or  liability  by  reason  of 
its  execution  of  the  obligations,  including  disp 
bnraements  and  costs  and  oonnsel  fees  incur- 
red in  collecting  the  premluns  due  upon  the 
bonds.  The  breach  alleged  was  that  the 
premiums  remained  unpaid  for  the  years  1014 
and  1916,  maturing  respectively  on  the  6th  of 
December  in  each  year.  The  answer  of  both 
defendants  contained  a  general  denial  of  the 
allegations  of  the  complaint,  end  an  averment 
that  the  contract  in  question  was  completed 
by  the  conipany  prior  to  December  6,  1913. 

The  trial  at  the  circuit  resulted  in  a  direc- 
tion of  a  verdict  for  the  plaintiff,  and  the  ap- 
peal lies  from  that  determination.  The  due 
czecntion  of  the  bonds  was  not  denied  In  the 
proof.  It  is  contended  that  there  was  a  vari- 
ance between  the  allegation  and  the  proof,  in 
that  two  of  the  bonds  were  dated  December 
6th,  and  since  the  Indemnity  agreement  was 
dated  December  19th,  the  inference  to  be 
drawn  was  that  the  latter  could  not  have 
been  executed  as  Quid  pro  quo  for  the  former. 
No  proof  was  tendered  to  sai)|)ort  the  con- 
tention, while  the  proof  was  ample  and  un- 
contradicted that  the  agreement  of  Indem- 
nl^  presented  the  moving  motive  for  the  exe- 
cution of  the  bwids.  It  is  also  to  be  observed 
that  the  test  is  not  fixed  by  the  date  of  the 
bond,  but  by  the  date  of  delivery  thereof, 

The  argument  that  the  agreement  was  with- 
out consideration  is  based  xipoa  the  same  mis- 
conception and  falls  with  It;  and  It  Is  to  be 
noted  that  no  averment  of  the  kind  is  made 
in  the  answers,  and  that  the  agreement  itself 
refers  to  the  execution  of  the  bonds  as  quid 
pro  quo  for  the  execution  of  the  agreement 
The  third  bond  was  in  fact  dated  December 
2Sth,  and  the  premiums  for  the  first  year 
were  paid,  and  it  was  proved  and  stands 
apparently  without  dispute  in  the  record  that 
the  performance  of  the  contract  consumed 
more  than  a  year,  so  that  the  premiums  again 
Diatared  on  December  6,  1914,  and  the  liabil- 


ity of  the  defendants  for  their  payment  conse- 
quently Is  manifest 

Certain  ledger  cards,  containing  statements 
of  payment  of  premiums  by  defendants,  were 
admitted  in  evidence  over  the  defendants'  ob- 
jection, that  they  were  not  original  entries, 
and  were  not  properly  proved.  If  this  oon- 
tentioa  be  conceded,  their  admission  wag  in 
no  wise  injurious  to  the  defendants,  since 
without  their  presence  in  the  case  the  proof 
was  ample  from  other  sources,  upon  which  to 
base  defendants'  liability.  The  substantial 
allegations  of  the  complaint  remained  chal- 
lenged and  uncontradicted  in  the  proof ;  and 
vre  think  the  right,  if  not  the  duty  of  the 
court,  under  the  dLrcumstances,  manifestly 
was  to  adopt  the  coarse  it  pursued,  and  to  di- 
rect the  judgment  appealed  from,  which  will 
be  affirmed. 

(87  N.  J.  Bq.  601) 
GOUDSTEIN  V.  GOLDSTEIN  et  aL    (No.  42.) 
(Court  of  Errors  and  Appeals  of  New  Jersey- 
June  18,  1917.) 

1.  Husband  ahd  Wira  C=>31(8)  —  Jkwibh 

ilABBIAOO     ABTICLES— OoNSTBUCnON. 

A  Jewish  betrothal  agreement  and  marriage 
certificate,  whereby  the  prospective  husband  ob- 
ligates himself  to  care  for  the  property  brought 
xn  by  the  wife  and  pledges  his  own  pr<q;>erty  as 
security  for  doing  so,  constitute  marriage  arti- 
cles which  give  rise  to  an  executory  trust  where- 
in the  creator  of  the  trust  denotes  his  ultimate 
object,  imposing  on  the  trustee  or  the  court  the 
duty  of  effectuating  it  in  the  most  convenient 
way. 

[ISd.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  §§  1S7,  883.] 

2.  Husband  and  Wira  (8=31(13)  —  jKwisn 
Mabbiagb  Abticles— CoNBTBUcnoN. 

The  nature  of  an  executory  trust  created 
by  Jewish  betrothal  agreement  and  nmrriage 
certificate  indicates  that  the  settlement  will 
provide  not  only  for  husband  and  wife,  but  for 
children,  and  it  is  for  the  court  to  work  out  the 
details  of  the  scheme  according  to  the  circum- 
stances of  each  case  so  as  to  do  justice  and  ef- 
fectuate the  intention  of  the  parties. 

WEd.  Note. — ^For  other  cases,  see  Husband  and 
ife,  Cent  Dig.  SS  193,  883.] 

Appeal  from  Court  of  Chancery. 

Bill  in  equity  by  Eva  Goldstein  against 
Hyman  I.  Goldstein  and  others.  Decree  (OS 
Atl.  835)  for  defendants,  and  complainant 
appeals.    Reversed. 

Henry  S.  Alvord,  of  Vlneland,  for  appel- 
lant Albert  S.  Woodruff,  of  Camden,  for 
appellees. 

SWA7ZB,  J.  The  bill  is  filed  to  establish 
a  tmst  in  the  sum  of  $5,000,  to  charge  it  on 
lands  of  the  defendants,  and  to  secure  the 
return  of  wearing  apparel,  jewelry,  and  wed- 
ding presents  brought  by  the  complainant  on 
her  marriage  to  the  defendant,  Hyman  I. 
(roldstein.  The  Important  question  is  as  to 
the  title  to  the  $5,000.  The  facts  are  as  fol- 
lows: Eva  Lipltz,  then  under  16  years  ot 
age,  the  complainant,  entered  into  a  written 
betrothal  agreement  with  the  defendant  Hy- 


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101  ATLANTIC  RBPORTBB 


(N.J. 


man  I.  Goldstein,  on  June  10,  1914.  The 
agreement  was  signed)  by  both.  It  provided 
for  a  marriage  with  ceremony  ot  canopy  and 
sanetlficatlon  according  to  the  rite  of  Moees 
and  Israel;  that  they  should  share  In  their 
possession,  Just  portion  and  portion  as  is  the 
universal  custom.  The  bridegroom  bound 
himself  to  give  presents  to  the  bride  accord- 
ing to  the  custom.  The  bride  obligated  her- 
self to  bring  In  as  dowry  |5,000  and  clothing, 
beddings,  and  trousseau,  according  to  the 
manner  of  the  proe^rous.  At  the  time  of 
the  betrothal  the  father  of  the  complainant 
deposited  $5,000  in  bank  and  received  there- 
for a  certificate  payable  to  Era  Llpltz  and 
Dr.  Hyman  Goldstein  ten  days  after  legal 
marriage  notice.  This  certificate  was  then 
delivered  to  Dr.  Goldstein,  who  satisfied  hlnir 
self  by  inquiry  that  it  was  good  for  the  mon- 
ey. Subsequently,  in  September,  the  mar- 
riage took  place  with  ceremony  of  canopy  and 
sanetlficatlon.  We  are  furnished  vrlth  a 
translation  of  a  Hebrew  marriage  certificate, 
translated  from  the  original  Aramaic,  which 
sets  forth  the  obligations  of  the  parties. 
This  is  only  a  blank  form.  Mrs.  Goldstein 
testifies  that  her  husband  took  the  original 
certificate  from  her.  He  testifies  that  he  un- 
derstood it  was  a  certificate  certifying  to  the 
fact  that  they  were  man  and  wife  and  that  he 
was  to  feed  and  support  her.  He  does  not 
deny  that  be  took  the  certificate  from  her. 
It  is  not  questioned  that  this  form  is  follow- 
ed in  a  case  of  ceremony  under  the  canopy 
and  with  sanetlficatlon  and  is  Included  as  a 
part  of  the  ceremony.  Dr.  Goldstein's  fa- 
ther testifies  that  they  positively  do  It  in  ev- 
ery Jewish  marriage.  The  certificate  states 
that  the  bride  consented  to  become  the  bride- 
groom's wife  and  brought  unto  him  the  dowry 
given  her  by  her  family,  consisting  of  gold 
and  of  silver,  of  ornaments  and  of  garments, 
of  furniture  and  of  bedding,  which  the  bride- 
groom accepted  and  agreed  to  add  thereto  and 
give  her  an  equal  sum,  declaring: 

"I  accept  the  responsibility  to  the  integrity 
of  this  dowry  and  of  my  addition  thereto,  for 
myself  and  my  heirs  that  will  follow  me,  to 
compensate  with  the  most  valuable  of  my  estate 
and  possessions,  which  I  do  possess  anywhere 
beneath  the  sky,  that  which  I  have  bought  al- 
ready and  that  which  I  may  buy  hereafter 
whether  of  land  or  of  goods  and  chattels,  all  of 
which  I  hereby  pledge  as  security  and  hold  them 
subject  to  the  collection  of  the  sum  set  forth  in 
this  certificate,  to  wit,  the  amount  of  this  dow- 
ry and  my  addition  thereto  even  pledge  the  very 
cloak  I  wear  on  my  shoulders  in  payment  dur- 
ing my  lifetime  and  after  my  lifetime  from  this 
day  forever." 

The  certificate  of  marriage  goes  on  to  state 
that  the  bridegroom  took  upon  himself  in  ac- 
cordance with  the  certificate  the  responsibil- 
ity for  the  dowry  and  the  addition  thereto. 
a%e  certificate  is  declared  to  be  subject  to 
strict  enforcement  as  all  certificates  of  dow- 
ry customary  among  the  daughters  of  Israel. 
It  closes  with  the  declaration  that: 

"We  have  purchased  the  right  of  this  man, 
namely,  the  bridegroom,  and  have  vested  it  in 
this    worthy    woman    aforementioned    •    •    * 


to  all  that  is  written  and  set  forth  in  the  fore- 
going by  means  of  an  article  with  which  the 
right  and  titie  may  be  properly  purchased." 

Dr.  Goldstdn  obtained  bis  wife's  indorse- 
ment of  the  certificate  of  deposit  and  drew 
the  money,  most  of  which,  $4,000  or  more,  he 
has  invested  in  a  house  in  Otunden  in  his  own 
name.  Some  of  it  seems  to  have  been  used 
to  buy  presents  for  the  complainant,  and 
some  invested  in  a  bouse,  the  titie  to  which 
is  in  the  doctor's  mother. 

[1,2]  The  rights  of  the  parties  obviously 
depend  cm  the  betrothal  agreement,  the  cer- 
tificate of  deposit,  and  the  marriage  certifi- 
cate. Dr.  Goldstein's  testimony  as  to  the 
conversations  with  his  prospective  father-in- 
law  are  unimportant,  since  the  negotiations, 
to  call  them  by  their  proper  name,  finally 
took  form  in  written  dociunents.  We  think 
It  clear  that  there  was  no  gift  of  the  money 
to  the  defendant  Tho  fact  that  the  certifi- 
cate of  deposit  was  in  the  Joint  names  of  the 
prospective  spouses  is  coadiBlve  on  that 
point.  The  l)etrothaI  agreement  contemplat- 
ed a  subsequent  marriage  according  to  com- 
monly used  Hebrew  rites  which  involve  obli- 
gations on  the  part  of  the  prospective  hus- 
Imnd  to  care  for  the  property  brought  him  by 
the  wife,  and  to  add  thereto.  The  pledge  by 
the  marriage  ceremony  of  his  own  property 
as  security  Indicated  that  he  was  to  have 
either  complete  or  partial  control  of  the 
property,  and  that  the  wife  was  to  have  some 
beneficial  interest  therein  secured  by  his 
pledge.  If  we  lay  aside  the  terms,  unustial 
to  our  ears,  in  which  the  documents  are 
couched,  we  have  what  is  familiar  to  English 
law  under  the  name  of  marriage  articles,  and 
we  have  a  case  of  the  legal  situation,  which 
so  often  arises  out  of  marriage  articles,  of 
an  executory  trust,  where,  to  use  the  lan- 
guage of  a  classic  text-book: 

"The  creator  of  the  trust  has  merely  denoted 
his  ultimate  object,  imposing  on  the  trustee  or 
on  the  court  the  duty  of  effectuating  it  in  the 
most  convenient  way.  Adams  on  iSquity,  star 
page  40,  a  statement  commended  by  Pomeroy 
as  "very  accurate."  Pomeroy's  Equity  Juris- 
prudence, i  1001. 

"In  the  case  of  executory  marriage  articles," 
continues  the  author,  "there  is  an  indication 
furnished  by  the  nature  of  the  instrument,  in- 
dependentiy  of  an  expressed  intention  leading 
to  this  construction  of  the  trust;  for  it  is  as- 
sumed, in  accordance  with  ordinary  practice, 
and  in  the  absence  of  reason  to  conclude  the 
contrary,  that  the  settiement  contemplated  by 
such  articles  is  one  which  will  not  only  provide 
for  the  husband  and  wife,  but  will  also  secure  a 
provision  for  the  children  of  the  marriage.  If 
therefore  the  articles,  strictiy  interpreted,  would 
have  a  different  result,  they  will  be  mended  in 
conformity  with  the  presumed  object." 

Pomeroy  says  (section  1001)  that,  where 
marriage  articles  or  agreements  to  settie 
are  general  In  their  terms,  a  court  of  equity 
presumes  that  it  was  the  intention  of  the 
parties  to  provide  for  the  issue  of  the  mar- 
riage, and  will  therefore  direct  a  settlement 
to  be  made  which  does  provide  for  the  chil- 
dren. The  subject  is  discussed  In  Lord 
Glenorchy  r.  Boeville,  1  Leading  Oases  in 


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SHAKNON  ▼.  WATT 


251 


Bquitx,  It  and  tbe  notes  thereto,  but  we 
need  go  no  further  than  the  opinion  of 
Justice  Depue,  speaking  for  this  court,  In 
Gushing  V.  Blake,  30  N.  J.  Eq.  688,  at  page 
701,  followed  by  us  in  PlUot  ▼.  Landcm,  46 
N.  J.  Eq.  310,  19  AtL  25.  In  those  cases. 
Indeed,  the  trusts  were  definitely  and  per- 
fectly expressed  in  the  declaration;  here 
they  are  left  indefinite  and  uncertain.  In- 
definite and  uncertain  as  the  terms  are,  the 
intent  is  dear.  It  is  to  create  a  trust  fund 
In  consideration  of  the  marriage  and  for  the 
pnrposes  thereof.  It  is  for  the  court  to 
work  out  the  scheme  of  the  marriage  settle- 
ment The  fact  that  cases  of  this  kind 
are  uncommon  and  unfamiliar  to  our  courts 
arises  oat  of  our  different  social  customs  and 
usages,  which  are  apt  to  treat  gifts  of  this 
Und  as  made  to  the  bride  and  take  little 
thought  in  the  case  of  small  fortunes  of  the 
objects  of  the  marriage  and  the  possible 
daims  of  future  children.  Uncommon  and 
unfamiliar  as  such  marriage  articles  are, 
there  is  no  reason  why  they  should  not  be  en- 
forced and  carried  out  as  marriage  articles, 
and  executory  trusts  are  enforced  and  car- 
ried out  by  the  English  law.  Since  we  think 
the  case  is  one  of  an  executory  trust,  it  is 
not  Important  to  determine  the  effect  of  the 
complainant's  Indorsement  of  the  certificate 
of  deposit.  Her  husband  was  also  a  trustee, 
and  the  fund  in  his  hands  alone  would  be 
charged  with  the  same  trust  as  In  their 
joint  hands.  It  may  be  well  to  add  that, 
even  if  tbe  complainant  had  a  title  free 
from  the  trust  to  any  part  of  the  fund.  It 
would  be  presumed  to  remain  her  property, 
niack  V.  Black,  30  N.  J.  Eq.  215.  The  re- 
Tersal  of  that  decree  (31  N.  J.  Eq.  798),  al- 
though without  opinion,  can  only  be  inter- 
preted imder  the  facts  of  the  case  as  em- 
phasizing tht.  principle,  which  has  since 
been  followed  in  this  court.  Cole  v.  Lee,  45 
N.  J.  Eq.  779,  at  785,  18  Atl.  854. 

If  a  pr(q>er  settlement  had  been  drawn  to 
etCectuate  the  intent  of  the  marriage  articles, 
It  would  have  provided  that  the  trustees 
should  hold  the  estate  during  the  continuance 
of  the  marriage.  Such  a  clause  was  approved 
In  Harvard  C!ollege  v.  Head,  111  Mass.  209, 
and  may  prevent  tbe  injustice  of  allowing  the 
spouse  who  is  guilty  of  misconduct  to  profit 
by  the  settlement  as  the  law  in  England  per- 
mitted prior  to  legislation.  Evans  v.  Carring- 
ton.  2  De.  P.  &  J.  481 ;  Fitzgerald  T.  Chap> 
man,  L.  R.  1  Oh.  D.  663,  45  I*  J.  Cm.  23; 
Chase  v.  Phillips,  153  Mass.  17,  26  N.  B. 
136.  The  case  is  like  N.  J.  Title  Guarantee 
&  Trust  Co.  T.  Parker,  85  N.  J.  Eq.  657,  96 
Atl.  574. 

In  case  the  marriage  shall  be  dissolved, 
as  seems  not  Improbable  In  view  of  what 
has  happened,  the  scheme  of  the  settlement 
should  provide  for  that  contingency.  Where 
husband  and  wife  had  separated.  Lord  Rom- 
lily,  M.  R.,  In  Munt  t.  Glynes,  41  L.  J.  Ch. 


639,  directed  that  the  legacy  be  paid  to  the 
wife.  Each  case  depends  on  Its  own  cir- 
cumstances, but  there  would  be  all  the  great- 
er reason  for  this  direction  where  the  fund 
came  from  the  wife  or  on  her  behalf,  and  a 
trust  would  result  upon  failure  of  the  pur- 
pose of  the  marriage  articles.  Speaking 
generally,  the  Court  of  Chancery  will  now 
be  In  a  position  to  work  out  a  scheme  In 
the  light  of  what  has  happened,  which  shall 
be  calculated  to  do  justice  and  effectuate  the 
intention  of  the  parties.  Illustrations  of 
the  length  to  which  the  court  may  go  in 
settling  the  scheme  to  effectuate  the  inten- 
tion may  be  found  in  the  cases  cited  in  the 
notes  to  Lord  Glenorchy  v.  Bosville  in  the 
Leading  Cases  in  Equity  and  in  Taggart  v. 
Taggart,  1  Sch.  A  Lef.  84;  Toung  v.  Mdn- 
tOBh,  13  Sim.  445;  Cogen  v.  Duffleld,  2  Ch. 
Div.  1044,  45  L.  J.  Ch.  307,  The  report  in 
13  Sim.  gives  a  form  of  decree. 

Other  precedents  may  be  found  in  Seton 
on  Decrees,  1235ff.  The  opinion  of  the  Vice 
Chancellor  was  adverse  to  the  complain- 
ant and  the  sdieme  of  the  settlement  was  a 
matter  which,  under  his  view,  it  was  unnec- 
essary to  consider. 

The  claim  of  the  complainant  to  personal 
chattels  was  only  touched  upon  In  the  court 
below,  and  not  discussed  In  this  court  The 
evidence  Is  not  detailed  enough  to  enable  us 
to  express  any  opinion  that  would  be  helpful. 
If  Important,  it  can  be  dealt  with  by  the 
Court  of  Chancery  upon  more  complete  evi- 
dence. 

The  complainant  is  entitled  to  a  decree 
charging  upon  the  land  owned  by  Dr.  Gold- 
stein the  amount  which  he  invested  therein 
out  of  the  $5,000,  appointing  a  trustee,  and 
settling  the  terms  of  the  trust  or  the  destina- 
tion of  the  fund  if  the  trust  must  be  con- 
sidered at  an  end.  As  to  the  amount  in- 
vested In  property  owned  by  defendant's 
mother,  we  find  nothing  in  the  testimony  to 
charge  her  with  notice  of  the  trust  Air  to 
that  and  any  other  sum  that  be  may  have 
spent  out  of  the  trust  fund,  the  decree  can 
only  be  a  personal  decree  against  him.  Tbe 
existing  decree  must  be  reversed,  and  the 
record  remitted  to  the  Court  of  Chancery  for 
further  proceedings  in  accordance  with  our 
opinion.  The  complainant  is  entitled  to 
costs  in   both   courts. 


(87  N.  J.  Eq.  «U) 
SHANNON  et  al.  v.  WATT.    (No.  45.) 

(Court  of  Ekrors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(SvUalui  &v  the  Court.) 

CUBTEST  «=»2— Dbvisb  Frek  fbok  Cubtesy 
— Statute. 
The  amendment  of  1876  to  the  Married 
Women's  Property  Act  (8  Comp.  St  1910,  p. 
8230,  pL  8a)  supersedes  tbe  proviso  in  secUnn  9 
of  the  act  of  1874  (3  Comp.  St  1910,  p.  3235, 
pi.  9),  OS  weU  as  the  provisions  of  section  14 


As>For  other  csMa  lae  lame  topic  and  KBY-NUMBER  In  all  Key-Numbered  Dlgesu  and  Indezee 


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252 


101  ATIiANTIC  BEPOHTKR 


(N.J. 


(3  Comp.  St  1910.  p.  3237).  In  tbe  cases  to 
which  it  is  applicable;  in  such  corps,  a  married 
woman  may  devise  lands  free  of  any  curtesy  of 
her  husband. 

[Ed.  Note. — For  other  cases,  aee  Curtesy, 
Oent  Dig.  «  3.  4.] 

Appeal  from  Court  of  Chancery. 

Bill  by  John  F.  Shannon  and  another 
against  Daniel  O.  Watt  to  enjoin  actions  of 
ejectment.  From  a  decree  of  the  court  of 
chancery  (09  AtL  114)  dismissing  the  bill  for 
want  of  equity,  complainants  appcaL  Af- 
firmed. 

The  bill  seeks  to  enjoin  actions  of  eject- 
ment.   Mary  J.  Watt,  wife  of  the  defendant, 
died  seised.     She  and  the  defendant  were 
married  in  ISSd,  and  had  a  child.    In  1908,  on 
the  wife's  complaint,  she  obtained  a  Judgment 
in  the  Supreme  Court  of  New  York,  whose 
jurisdiction  Is  not  questioned,  separating  her 
from  the  bed  and  board  of  the  d^endanC 
forever.     Thereafter,  and  until  her  death, 
she  and  her  husband  lived  in  a  state  of  sep- 
aration under  that  Judgment.    Mrs.  Watt,  by  | 
a  will  made  October  30, 1914,  devised  the  real 
estate  in  question  to  tbe  appellants.    Probate  ' 
of  the  wlU  was  resisted,  although  apparently  i 
not  by  the  husband ;   the  will  was  sustained  | 
both  in  the  orphans'  court  and  the  preroga-  i 
tive  court ;    there  is  nothing  to  show  that ; 
there  was  an  appeal  to  this  court.    The  bus- '. 
band  brought  the  ejectment  suits,  relying  on ' 
an  alleged  estate  by  tbe  curtesy.    Tbe  appel- ' 
lants  answered,  setting  up  that  tbe  devise: 
to  them  was  free  of  tbe  curtesy  by  virtue  of  | 
the    amendment    of   1876    to    tbe   Married 
Women's  Property  Act  (P.  U  1876,  p.  18;  Re- 
vision of  1877,  p.  639,  pi.  18;    C.  S.  p.  3230, 
pi.  8a).    It  is  not  claimed  ttiat  the  property 
in  suit  came  to  Mrs.  Watt  by  gift  through 
or  from  her  husband.    While  the  actions  at 
law   were  pending,   tbe  defendants   therein, 
now  tbe  appellants,  apparently  thinking  that, 
even  If  their  view  of  tbe  statute  was  upheld, 
it  would  be  open  to  tbe  plaintUf  in  tbe  eject- 
ment suit  to  question  whether  the  will  was 
\'alid  or  not,  filed  this  bill.   Tbe  equity  on 
which  they  rely  is  an  oral  promise  made  in 
open  court  in  tbe  New  York  action,  incited 
in  tbe  findings  of  fact  and  made  part  of  tbe 
Judgment,  by   which  tbe  defendant  agreed 
to  release  bis  Interest  as  tenant  by  tbe  cur- 
tesy In  all  his  wife's  real  property,  as  well 
that  she  then  had  as  that  she  might  subse- 
quently acquire,  and  to  execute  all  Instru- 
ments and  conveyances  necessary  to  carry  in- 
to effect  such  releases  whenever  be  might  be 
requested  by  bis  wife  so  to  do. 

Substantially  tbe  bill  Is  a  bill  for  specific 
performance  of  tbe  contract  and  for  the  en- 
forcement of  tbe  judgment.  Upon  motion 
tbe  chancellor  dismissed  the  bill  for  want  of 
equity.    The  appeal  Is  from  this  decree. 

Marshall  Van  Winkle,  of  Jersey  City,  for 
appellants.  Walter  V.  McDermott  and 
Kunyon  &  Autenrletb,  all  of  Jersey  City,  for 
appellee. 


SWAYZE,  J.  (after  stating  the  facts  as 
al>ove).  Tbe  first  question  to  be  decided  is 
what  is  tbe  effect  of  tbe  devise  in  Mary  F. 
Watt's  will.  This  depends  on  tbe  effect  of 
tbe  act  of  1876,  now  printed  in  the  Com- 
piled Statutes,  p.  3230,  pL  8a.  Tbe  case  is 
clearly  witbln  the  language  of  tbe  act.  Mrs. 
Watt  was  a  married  woman,  living  in  a 
state  of  separation  from  her  husband,  un- 
der and  by  virtue  of  tbe  Judgment  of  the 
Supreme  (jourt  of  New  York  founded  upon 
her  application  for  tbe  separation.  The  de- 
vise of  tbe  lands  to  tbe  appellants  was  made 
during  tbe  continuance  of  the  separation,  and 
the  lands  did  not  come  to  ber  by  gift  through 
or  from  ber  husband.  In  such  a  state  of 
facts,  tbe  statute  says,  in  so  many  words, 
that  she  may  devise  "in  the  same  manner  and 
with  tbe  like  effect  as  If  she  were  sole  and 
unmarried."  Obviously,  If  this  statute  Is  ef- 
fective, tbe  devise  must  be  free  of  any  cur- 
tesy of  the  huslMnd ;  otherwise  It  would  not 
have  the  like  effect  as  If  the  testatrix  were 
sole  and  unmarried.  The  husband's  contri- 
tion, however,  is  that  section  0  of  tbe 
Married  Women's  Property  Act,  as  revised 
in  1874  (Revision  of  1877,  p.  638),  enacts  that 
"nothing  herein  contained  shall  be  so  constru- 
ed as  to  authorize  any  married  woman  to 
dispose,  by  wlll'or  testament,  of  any  Interest 
or  estate  in  real  property  to  which  her  bus- 
band  would  be,  at  ber  death,  entitled  by  law ; 
but  such  interest  or  estate  shall  remain  and 
vest  in  the  husband  in  the  same  manner  as 
if  such  will  had  not  been  made."  Tills  stat- 
ute was  approved  March  27,  1874.  By  sec- 
tion 6  it  authorizes  a  married  woman  livins 
in  a  state  of  separation  from  her  husband, 
imder  or  by  virtue  of  the  final  judgment  or 
decree  of  a  court,  during  tbe  continuance  oC 
tbe  separation  to  sell,  release,  transfer,  and 
convey  any  Interest,  estate,  or  ri^t  in  real 
property  in  the  same  manner  and  with  the 
like  effect  as  If  she  were  sole  and  unmar- 
ried, but  expressly  provides  that  such  sale, 
conveyance,  or  release  shall  not  affect  any 
estate  or  right  her  husband  might  then  have 
in  such  property.  There  was  no  inconsist- 
ency between  section  6  and  section  0  of  the 
act  of  1874.  The  proviso  of  section  9  was 
applicable  only  in  case  of  a  devise  by  a  mar- 
ried woman,  and  no  devise  was  authorized 
by  section  6,  which,  moreover,  was  as  care- 
fully drawn  as  secticw  9  to  save  the  rlghta 
of  tbe  husband. 

In  1876  tbe  I^egislature  saw  fit  to  intro- 
duce a  change  (P.  L.  1875,  p.  62).  Tbe  act  Is 
in  two  sections,  the  first  authorizing  a  mar- 
ried woman,  under  the  specified  circum- 
stances, to  convey,  mortgage,  lease,  or  devise 
as  if  sole  and  unmarried ;  the  second  au- 
thorizing a  married  man,  under  the  same 
circumstances,  to  convey,  mortgage,  lease,  or 
devise.  There  was  a  clerical  error  in  the 
first  section  caused  by  tbe  omission  of  tbe 
word  "except."  This  error  was  correcteU 
by  the  act  of  1876,  above  recited.    The  im- 


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N.  J.)        KOETTEQEN  v.  MAYOR  AND  ALDEUMEN  OP  CITY  OP  PATERSON       253 


portant  change  was  the  insertion  of  the  word 
"devise."  This  word  can  only  have  effect  If 
the  act  of  1876  supersedes  the  proviso  In  sec- 
tion 9  of  the  act  of  1874  In  the  cases  to  which 
It  Is  applicable.  The  proviso  still  Is  law  as 
to  all  other  cases  and  constituted  the  usual 
rule.  It  is  not,  since  1876,  applicable  to  the 
cases,  fortunately  few  in  number,  which  ful- 
fill the  special  conditions  of  that  act  The 
same  reason  makes  section  14  of  the  act  of 
1874  Inapplicable  to  cases  arising  under  the 
act  of  1876.  This  case,  as  we  have  said,  is 
within  the  special  conditions  of  the  act  of 
1876.  and  Mrs.  Watt  might  therefore  devise 
with  the  like  effect  as  U  she  were  sole  and 
unmarried,  L  e^  free  of  any  curtesy  of  her 
husband. 

It  follows  from  this  that  the  defendants  in 
ejectment,  now  appellants,  have  a  complete 
defense  at  law  if  Mrs.  Watt's  will  is  valid, 
as  it  has  t>een  held  to  be  by  the  orphans' 
court  and  the  prerogative  court  If  that  will 
should  be  questioned  in  the  ejectment  suits, 
and  the  Jury  should  find  adversely  to  its 
Talidity,  a  different  question  would  be  pre- 
sented. But  Mr.  Watt's  counsel  in  their 
brief  in  this  court  state  their  contention  as 
being  that  the  will  was  not  inconsistent  with 
his  right  of  curtesy;  that  they  rely  on  the 
proviso  in  section  9,  and  that  the  actions  of 
ejectment  depend  for  determination  upon 
the  construction  of  the  statute.  If  they  ad- 
here to  this  position,  the  defense  at  law  will 
be  adeqxiate.  But  If  they  had  taken  a  dif- 
ferent position,  the  present  bill  would  be 
without  equity.  It  avers  that  the  will  Is 
▼alid  and  sustained  by  the  decrees  of  both 
courts.  If  that  is  so,  it  Is  idle  to  enforce 
a  contract  for  the  release  of  curtesy,  since 
there  is  no  curtesy  to  release  The  bill  in 
that  view  is  prematurely  filed.  It  would  be 
well  for  the  chancdlor  to  modify  the  decree 
below  so  as  to  leave  no  doubt  that  the  com- 
plainant's rights  may  be  presented  by  a 
new  bill  If  and  when  the  proper  time  comes. 
W«  express  no  opinion  as  to  the  points  dealt 
with  by  the  vice  chancellor.  In  the  view  we 
taHe,  no  harm  can  be  done  the  complainants 
by  affirming  the  present  decree.  The  defend- 
ant Is  entitled  to  costs  in  both  courts,  as  he 
bas  been  brought  in  the  present  proceeding 
ODiiecessarlly. 


(90  N.  J.  Law.  6t8) 

KOETTBGEN  v.  MAYOR  AND  ALDERMEN 

OF  CITY  OP  PATERSON  et  aL 

(No.  149.) 

(Court  of  E2rrora  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

1.  HUNICTPAI,    COKPORATIONS   «=9l21  —  Obdi< 
HANCE— DETEBMINATION  OF  VALIDITT. 

An  ordinance  could  not  be  set  aside  as  a 
whole  in  a  proceeding  In  which  no  conviction 
had  been  bad,  though  the  authority  conferred  on 
the  board  of  aldermen  by  the  city  charter  to  pass 


the  ordinance  had  been  curtailed  or  superseded 
by  a  statute  in  one  or  more  respects. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  S  257.] 

2.  Licenses  €=»7(9)—REom.ATi0N— Review. 

Where  the  license  fee  fixed  by  an  ordinanr« 
was  not  excessive  or  unreasonable  in  view  of  the 
incidental  expenses  connected  with  the  enforce- 
ment of  the  ordinance,  including  cost  of  inspec- 
tion, the  fee  was  an  incident  to  regulation  and 
not  for  revenue. 

[Ed.  Note.— For  other  cases,  see  licenses. 
Cent.  Diis.  f  1619.] 

3.  MUNICIPAI-  COKPOBATIONS  ®=3l21  —  OBDI- 

nancks—Validitt— Right  to  Attack. 
The  prosecator  in  certiorari  proceedings 
could  not  complain  that  the  penalty  imposed  for 
violation  of  an  ordinance  was  not  authorized 
by  the  city  charter,  where  she  bad  not  been  con- 
victed and  no  penalty  had  been  imposed  npon 
her. 

[Bd.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  g  257.] 

4.  MuNiciPAi,  Corporations  4=»111(4)  —  Ob- 
dinances— Pabtiai.  Invauditt. 

The  whole  of  a  dty  ordinance  wUI  not  be 
set  aside  because  part  of  it  is  invalid,  where 
the  valid  and  invalid  provisions  are  separable. 

[Ed.  Note. — For  other  cases,  see  Munidpal 
Corporations,  Cent  Dig.  {}  248-251.] 

5.  MuRiciPAi,  Corporations  ®=>591  —  Ordi- 
nances—Deleoation  OF  Chabtbb  Powers. 

Where  a  city  charter  merely  authorized  the 
board  of  aldermen  to  pass  ordinances  regulating 
places  of  amusement,  and  did  not  require  them 
to  license  such  places,  an  ordinance,  authorizing 
issuance  of  licenses  by  the  mayor,  was  not  an 
illegal  delegation  of  the  charter  powers  to  the 
mayor. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  $  1310.] 

6.  Licenses    ®=»7(l)—OBDiNA«ca»— Validity 
— Confiscation. 

That  an  ordinance  imposing  licenses  on  plac- 
es of  amusement  may  incidentally  decrease  the 
profits  from  the  sale  of  liqaois  and  the  receipts 
of  rent  for  a  dance  ball  does  not  make  the  oi^i- 
nance  confiscatory. 

[Ed.  Note. — For  other  cases,  see  Licenses. 
Cent  Dig.  {(  7,  19.] 

Appeal  from  Supreme  Court 

Proceeding  by  Wilhelmlna  Koettegen 
agralnst  the  Mayor  and  Aldermen  of  the  City 
of  PatersMi  and  others.  From  judgment  for 
defendants,  prosecutor  appeals.    Affirmed. 

The  following  is  the  opinion  of  the  court 
l>elow: 

"This  writ  brings  up  for  review  an  ordinance 
passed  by  the  Pateraon  board  of  aldermen  to 
license  and  regulate  the  pablic  dance  halls  of 
that  dty. 

"Our  examination  leadtf  to  the  following  con- 
clusions: 

[I]  "1.  The  authority  to  pass  the  ordinance 
in  question  is  conferred  upon  the  board  of  aider- 
men  by  the  provisions  of  the  dty  charter.  If 
the  authority  thus  conferred  is  in  one  or  more 
respects  curtailed  or  superseded  by  the  act  of 
1913,  still  the  ordinance  as  a  whole  cannot  be 
set  aside  in  this  proceeding  in  which  no  convic- 
tion has  been  had. 

[2]  "2.  The  fee  fixed  by  the  ordinance  is  not 
excessive  or  unreasonable  in  view  of  the  inci- 
dental expenses  connected  with  its  enforcement, 
including  cost  of  constant  inspection.     The  fee 


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101  ATLANTIC  REPORTBB 


(N.J. 


thus  fixed  is  therefore  incident  to  relation,  and 
not  for  revenue. 

[3, 4]  "3.  The  penalty  imposed  by  the  ordi- 
nance is  authorized  by  the  charter;  in  the  ab- 
sence of  a  conviction  and  the  imposition  of  any 
penalty  it  is  not  perceived  that  the  prosecutor 
is  in  a  position  to  quarrel  with  a  provision 
■which,  if  her  contention  be  correct,  would  not 
be  enforceable  in  case  she  violated  the  ordinance. 
If  separable,  the  whole  ordinance  will  not  be 
set  aside.  Sbill  Rolling  Chair  Co.  v.  Atlantic 
City,  87  N.  J.  Law,  page  399,  94  Atl.  314. 

[5]  "4.  The  ordinance  is  not  an  illegal  dele- 
gation of  the  charter  powers  to  the  mayor.  The 
charter  does  not  require  the  board  of  aldermen 
to  license  places  of  amusement;  it  authorizes 
them  to  pass  ordinances  regulating  such  places. 
That  they  have  done,  and  a  part  of  the  regula- 
tion thus  ordained  is  a  license  to  be  obtained  in 
the  manner  prescribed  by  the  ordinance.  The 
board  has  not  delegated  its  authority;  it  has 
exercised  it.  The  prosecutor  has  not  been  re- 
fused a  license  or  been  convicted  for  not  having 
one;  hence  she  has  not  shown  that  any  injury 
has  come  to  her  from  this  incident  of  regulation. 

[6]  "5.  The  ordinance  is  not  unreasonable  be- 
cause of  its  incidental  effect  upon  the  business 
in  which  the  prosecutor  is  lawfully  engaged; 
hence  the  fact  that  the  sale  of  liquors  and  the 
receipts  of  rent  for  the  dance  hall  fell  off  after 
the  ordinance  went  into  effect  does  not  render  it 
confiscatory  in  any  legal  sense. 

"The  defendant  in  certiorari  contends  in  limine 
that,  inasmuch  as  there  has  been  no  conviction, 
the  ordinance  cannot  be  set  aside  in  toto  if  any 
of  its  provisions  are  at  once  lawful  and  separ- 
able from  those  that  are  challenged,  citing  Ros- 
encrans  ▼.  Eatontown,  80  N.  J.  Law,  227, 
77  Atl.  88;  Neumann  v.  Hoboken,  82  N.  J. 
Taw,  275,  82  Atl.  511;  Siciliano  v.  Neptune 
Township,  83  N.  J.  Law,  158,  83  Atl.  865. 

"There  are  in  the  ordinance  such  provisions,  e. 
g.,  the  sale  of  Intoxicating  liquors,  the  inspection 
of  dance  halls,  and  the  revocation  of  licenses. 

"Our  conclusion,  therefore,  is  that  in  the  re- 
spects in  which  it  is  challenged,  the  ordinance  is 
valid,  and  that  If  it  were  otherwise,  it  would  not 
be  set  aside  in  toto  in  this  proceeding. 

"This  applies  also  to  the  cases  in  which  the 
prosecutors  are  Duffy,  the  Charles  Kruchen 
Company,  and  the  Riverside  Turn  Verein  Har- 
monic. 

"The  writs  are  dismissed,  with  costs." 

Ward  &  McOlnnis,  of  Paterson,  for  appel- 
lant. BMwaid  P.  Merrey,  of  Paterson,  for 
appellees. 

PBB  CURIAM.  The  Judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  In  the  opinion  of  the  Supreme  Court. 


(90  N.  J.  Law,  717) 

RIVERSIDR  TURN  VERBJIN  HARMONIB 

V.  MAYOR  AND  ALDERMEN  OF  CITY 

OF  PATERSON  et  al.    (No.  148.) 

(Court  of  Errors  and  Appeals  of  New  Jetaej. 

June  18,  1917.) 

Appeal  from  Supreme  Court 

Proceedings  by  the  Riverside  Turn  Verein 
Harmonie,  a  corporation,  against  the  Mayor  and 
Aldermen  of  the  City  of  Paterson  and  others. 
From  judgment  for  defendants,  prosecutor  ap- 
peals.   Affirmed. 

Ward  &  McGinnis,  of  Paterson,  for  appellant 
Edward  F.  Merrey,  of  Paterson,  for  appellees. 

PER  CHJRIAM.  The  judgment  under  review 
will  be  affirmed  for  the  reasons  given  in  the  per 


curiam  in  Wilhelmina  Koettegen  v.  Mayor  and 
Aldermen  of  the  City  of  Paterson  et  al..  No.  149, 
101  Atl.  253,  of  the  present  term  of  this  court. 


(W  N.  J.  law,  700) 
CJHARLBS  KHUCHEN  CO.  v.  MAYOR  AND 
AL.DBRMEN  OF  CITY  OF  PATERSON 
et  aL    (No.  150.) 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 
Appeal  from  Supreme  Court 
Proceedings  by  the  Charles  Kruchen  (Compa- 
ny, a  corporation,  against  the  Mayor  and  Alder- 
men of  the  City  of  Paterson  and  others.    From 
judgment    for   defendants,    prosecutor   appeals. 
Affirmed. 

Ward  &  McGinnis,  of  Paterson,  for  appellant 
Edward  F.  Merrey,  of  Paterson,  for  app^ees. 

PER  CURIAM.  The  judgment  under  review 
will  be  affirmed  for  the  reasons  given  in  the  per 
curiam  in  Wilhelmina  Koettegen  v.  Mayor  and 
Aldermen  of  the  City  of  Paterson  et  aL,  No. 
149,  101  AtL  253.  of  the  present  term  of  this 
court 


(90  N.  J.  Law.  SSZ) 
SMITH  ▼.  SMITH.    (No.  143.) 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  IS,  1917.) 

(SyllatiM  fiy  the  Court.) 

1.  Covenants  «=>12^— Bbeach  of  Covenant 
AOAiNsT  Inccmbkancks— Evidence  —  Fob- 
EiGN  Decree. 

A  judgment  or  decree  being  entered  In  the 
courts  of  the  state  of  Iowa,  under  proceedings  to 
foreclose  a  mortgage  and  for  the  redemption  of 
the  land,  by  paying  the  amount  due  on  a  judg- 
ment, such  decree  and  proceedings  are  prima 
facie  evidence  of  the  validity  of  the  mortgage,  of 
the  amount  due  thereon,  of  the  lands  upon 
which  the  same  were  a  lien,  of  the  extent  of  the 
lien,  and  of  the  right  of  redemption.  This  is  so 
when  such  judgment  or  decree  is  put  in  evidence, 
in  a  suit  brought  in  the  New  Jersey  courts,  to 
recover  damages  for  a  breach  of  the  covenants 
against  incumbrances,  contained  in  deeds  con- 
veying the  lands  covMwi  by  the  mortgage  fore- 
closed. 

^[Bd.  Note.— For  other  cases,  see  CJovenants, 
Cent  Dig.  |  224.] 

2.  Action  «=>17— Covenant  against  Inccm- 
BBANCEs— Remedies— Lex  Fobi. 

Remedies  are  to  be  regulated  and  pursued 
according  to  the  lex  fori,  the  law  of  the  place 
where  the  action  is  instituted. 

fEd.  Note.— For  other  cases,  see  Action,  CSent 
Dig.  {  94.] 

3.  C!ovenant8  Q=>110  —  Limitation  or  Ao- 
TioNS— Covenant  against  Incumbbances. 

There  is  no  statute  of  limitations  in  New 
Jersey,  in  an  action  for  breach  of  a  covenant 
against  incumbrances. 

[Bd.  Note. — ^For  other  cases,  see  Covenants, 
Cent.  Dig.  {(  177,  178.] 

4.  Covenants  «=3l02(l)— C3ovenant  against 
Incumbbances— Action  fob  Breach- Bvio- 

TION. 

Actual  eviction  is  hot  necessary,  before  an 
action  will  lie  for  the  breach  of  a  covenant 
against  incumbrances.  It  is  sufficient  that  evic- 
tion may  take  place. 

[Ed.   Note. — For  other  cases,  see  Covenants, 
Cent  Dig.  IS  157-159.] 

Gummere,  C.  J.,  and  Swayze,  Bergen,  Wil- 
liams, Taylor,  and  Gardner,  J  J.,  dissenting. 


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255 


Appeal  from  Circuit  Court,  Warren  Connty. 

Action  by  Walter  H.  Smltli  against  C3ar- 
ence  C.  Smith,  executor  of  James  Prall,  de- 
ceased. Judgment  for  plaintiff,  and  defend- 
ant appeals.    Affirmed. 

William  H.  Morrow,  of  BeMdere,  for  ap- 
pellant. L.  X)e  Witt  Taylor,  of  BeMdere,  and 
Osiris  D.  McConnel.  of  Philllpsburg,  for  ap- 
pellee. 

BLACK,  J.  The  respondent  sued  the  ap- 
pellant's testator,  In  the  Warren  circuit 
court,  for  a  breadi  of  the  corenants  against 
Incumbrances,  contained  In  two  deeds,  made 
by  James-  Prall,  the  appellant's  testator, 
bearing  date  March  8,  1891.  The  land  con- 
Teyed  by  the  deeds  Is  situate  In  Harrison 
county,  state  of  Iowa.  The  case  coming  on 
for  trial,  the  record  shows,  the  respective 
counsel  having  agreed  upon  the  facts,  the 
court  took  the  case  from  the  Jury  and  direct- 
ed a  verdict  for  the  respondent,  for  $2,091.08. 
Aa  exception  was  then  noted  to  the  direction 
of  the  verdict  The  appellant  brings  the  ap- 
peal, and  alleges  13  grounds  and  reasons  for 
a  reversal  of  the  judgment,  all  of  which.  In 
different  forms,  challenge  the  right  of  the  re- 
spondent to  maintain  the  action.  Thus  the 
first  four  and  the  eleventh  allege  error  In  the 
trial  court  in  directing  a  verdict,  in  favor  of 
the  respondent.  The  fifth,  sixth,  and  seventh 
allege  the  only  action  that  could  be  maintain- 
ed Is  an  equitable  proceeding;  eighth,  cer- 
tain releases  given  by  the  respondent  operat- 
ed as  an  equitable  estoppel,  against  the  re- 
spondent maintaining  the  suit;  ninth,  there 
was  no  eviction ;  tenth,  the  brokoi  covenants 
did  not  run  with  the  land,  so  that  an  action 
could  be  maintained  on  audi  broken  cove- 
nants; twelfth,  the  respondent  and  those 
claiming  under  him  have  been  In  open  and 
ex<dnslve  possession  of  the  premises  since  the 
30th  day  of  October,  1890,  upwards  of  20 
years  next  before  the  commencing  of  this 
suit;  that  such  possession  Is  a  bar  to  the 
rigrlit  of  action  asserted  by  the  respondent ; 
thirteenth,  the  decree  or  Judgment  entered  in 
the  district  court  of  Harrison  county,  Iowa, 
BO  far  as  the  same  is  claimed  to  be  the  basis 
of  this  action,  is  of  no  force  or  effect,  against 
the  appellant,  as  executor  of  James  Prall,  de- 
ceased. These  points  are  argued  by  the  ap- 
pellant's counsel  at  length  in  an  elaborate 
brief,  whldi  fails  to  convince  us  that  the 
trial  court  was  in  error,  or  that  the  respond- 
ent had  no  right  to  maintain  his  action. 

The  correctness  of  the  computation  of  the 
amount  of  the  Judgm^it,  as  directed  by  the 
trial  Judge,  is  not  challenged  by  any  ground 
of  appeal ;  nor  is  it  argued  by  the  appellant 
in  his  brief.  We  have  not  therefore  consider- 
ed that  question,  nor  Is  it  necessary  to  follow 
in  detail  the  argument  of  the  appellant. 

[1, 2J  A  short  summary,  however,  of  the  es- 
sential facts  is  necessary  to  a  clear  under- 
staodlng  of  the  case.  The  language  of  the 
covenants  in  each  deed  is: 


'TFhat  the  above-described  premises  at«  free 
from  any  incnmbrances  otiier  than  roads  and 
highways." 

At  the  time  of  the  delivery  of  the  deeds, 
one  Alonzo  P.  Tukey  held  a  mortgage  upon 
the  lands  described  in  the  deeds,  for  the  sum 
of  $600  and  Interest  This  mortgage  was 
made  to  Tukey  by  one  John  W.  Foster,  onnnor 
of  the  Iand&  The  mortgage  was  dated  Jan- 
uary 20,  1888.  James  Prall,  the  appellant's 
testator,  received  his  titie  to  the  land  by 
virtue  of  a  sheriflTs  deed  under  a  decree, 
entered  in  the  district  court  of  Harrison 
county,  Iowa,  on  September  6,  1889.  This 
decree  was  made  in  a  suit  brought  by  James 
Prall  to  foreclose  a  first  mortgage  upon  the 
same  lands,  for  $1,600  and  interest,  made  by 
the  same  John  W.  Foster  to  D.  C.  Rlchman  ft 
Son,  and  by  them  assigned  to  James  Prall. 
This  mortgage  was  dated  December  16,  1887. 
In  this  foreclosure  suit  by  James  Prall,  Tu- 
key was  made  a  defendant,  by  reason  of  his 
holding  the  above  mortgage,  being  a  second 
mortgage  upon  the  lands;  no  process  was 
served  upon  him,  he  did  not  appear  in  the 
action,  and  the  suit  was  by  order  of  the  court 
continued  as  to  him.  In  text  he  bad  no 
knowledge  of  the  Prall  foreclosure  suit  until 
a  long  time  after  the  sherifTs  sale,  1897  or 
1898.  On  March  11, 1908,  Tukey  brought  suit 
in  the  district  court  of  Harrison  county,  for 
the  foreclosure  of  his  mortgage,  for  the  re- 
demption of  the  land,  by  paying  the  amount 
due  on  the  Judgment,  in  the  Prall  foreclosure 
suit  The  respondent,  in  this  case,  was  made 
a  defendant,  as  were  also  Peter  Relnholdt 
and  Alfred  Peterson,  who  were,  at  that  time, 
the  owners  of  the  equity  in  the  lands,  having 
derived  their  title  from  James  Prall  and  the 
respondent,  through  intermediate  grantees. 
Peterson  filed  a  cross-petition  against  the  re- 
spondent, tha  plaintiff  In  this  suit,  to  compel 
him  to  pay  Peterson  such  sum  of  money  as 
might  be  found  necessary,  to  redeem  the  land 
from  the  Tukey  mortgage,  and  to  make  Peter- 
son whole  in  the  premises.  On  June  IS,  1909, 
a  final  decree  was  entered  in  the  Tukey  Case, 
wherein  it  was  adjudged  that  the  Tukey 
mortgage  be  established,  as  a  lien  upon  the 
lands  in  the  amount  of  $1,356.88,  with  inter- 
est from  June  18, 1909.  The  court  directed  a 
special  execution  to  issue  for  the  sale  of  the 
lands  to  satisfy  the  Tukey  Uen.  The  pur- 
chaser should  pay  off  the  senior  lien,  by 
paying  $3,000,  vrlUi  the  accumulated  Interest 
thereon,  to  the  derk  of  the  court,  for  the  ben- 
efit of  the  owners  of  the  land  sold.  On  the 
cross-petition,  the  court  ordered  that  Peter- 
son was  entiUed  to  recover  from  the  respond- 
ent, the  plaintiff  in  this  suit,  such  sum  as 
should  be  necessary,  under  the  decree,  to 
redeem  the  lands  frcnn  the  Tokey  mortgage, 
or  to  satisfy  that  mortgage. 

An  appeal  was  taken  by  the  respondent,  the 
plaintiff  in  this  suit,  from  this  decree,  to 
the  Supreme  Court  of  Iowa,  and  that  court 
affirmed  the  decree.    A  procedendo  was  !*• 


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101  ATLANTIC  REPORTER 


(N.  J, 


sued  by  that  court  on  April  29,  1918.  After 
this  affirmance  by  the  Iowa  Supreme  Court, 
In  order  to  extinguish  the  Tukey  decree  or 
Judgment,  as  it  Is  called,  and  free  the  lands 
from  the  Hen  thereon,  the  respondent  paid 
Tukey's  attorney,  on  May  23,  1913,  $1,906.76, 
being  the  amount  oiS  the  judgment,  with 
interest  and  costs.  He  then  took  an  assign- 
ment of  the  judgment.  Respondent  then  re- 
leased all  of  the  lands  from  the  lien  of  the 
Judgment,  and  thereupon  brought  the  present 
suit,  October  10, 1913,  against  the  appellant's 
testator,  to  recover  the  amount  which  he 
paid  to  extingrulsh  the  Incumbrance  of  Tukey, 
with  the  result  that  the  trial  court  directed 
a.  verdict  in  his  favor. 

The  question,  as  we  see  It,  arising  out  of 
this  state  of  facts  and  Involved  in  the  deci- 
sion of  this  case.  Is  whether  the  respondent, 
the  plaintiff  in  this  suit,  had  a  right  to  main- 
tain his  action  in  the  common-law  courts 
of  New  Jersey,  to  recover  damages  for  the 
breach  of  the  covenants  against  incumbranc- 
es, and,  if  so,  what  law  is  to  be  applied  to 
the  solution  of  this  problem.  The  answer 
to  this  question  depends  upon  the  applica- 
tion of  the  following  accepted  principles  of 
law:  The  proceedings  and  decree  in  the  Tu- 
key Case  are  prima  facie  evidence  in  this  case 
of  the  validity  of  the  Tukey  mortgage,  of  the 
amount  due  thereon,  of  the  lands  upon  which 
the  same  were  a  lien,  of  the  extent  of  the 
lien  and  of  the  right  of  redemption.  11  Cyc. 
1156,  1157.  The  law  of  Iowa  governs  as  to 
the  lien  on  the  lands  situate  in  that  state. 
GrifDn  v.  Griffin,  18  N.  J.  Eq.  104,  107.  It 
Is  the  law  of  the  state  in  which  the  mortgag- 
ed property  lies  which  governs.  Urine  v. 
Hartford  Fire  Ins.  Co.,  96  U.  S.  ffi27,  635, 
24  L.  Ed.  858 ;  6  K.  C.  L.  p.  926,  S  21.  The 
Iowa  Supreme  Court  passed  upon  the  Tukey 
mortgage  in  an  opinion  In  which  the  facts, 
as  disclosed  by  this  record,  are  quite  fully 
sot  out  Tukey  v.  Relnholdt,  130  N.  W.  727. 
See  Same  v.  Foster,  158  Iowa,  312,  138  N.  W. 
862.  From  these  propositions  it  would  seem 
to  follow  that  Prall's  liability,  the  appellant's 
testator,  is  to  be  determined  from  the  Judg- 
ment or  decree  entered  in  the  Iowa  courts, 
except,  in  so  far  as  that  liability  may  be  af- 
fected I)y  matters  relating  to  the  remedy, 
i.  e.,  the  lex  fori.  Thus,  the  statute  of  limita- 
tions of  New  Jersey,  If  any,  would  be  ap- 
plied, the  period  of  limitation  prescribed  by 
the  law  of  the  forum  controls.  Jaqui  v.  Ben- 
jamin, 80  N.  J.  Law,  10,  77  Atl.  468.  A 
foreign  Judgment  is  subject  to  the  statute  of 
limitations  of  the  lex  fori.  Summerside  Bank 
V.  Ramsey,  55  N.  J.  Law,  383,  26  Atl.  837. 
Remedies  are  to  be  regulated  and  pursued 
according  to  the  lex  fori,  the  law  of  the  place 
where  the  action  is  instituted.  Gullck  v. 
Loder,  13  N.  J.  Law,  68.  23  Am.  Dec.  711 ;  8 
R.  C.  L.  p.  917.  i  11,  p.  941,  i  28. 

[3, 4]  In  cases  from  our  courts,  in  actions 
for  a  breach  of  covenant  against  incumbranc- 
es, it  is  said  the  general  rule  is  ttie  right 


of  action  on  the  covenant  against  incum- 
brances arises  upon  the  existence  of  the  in- 
cumbrance, irrespective  of  any  knowledge  up- 
on the  part  of  the  grantee  or  of  any  evie- 
tion  of  him  or  of  any  actual  injury  it  has 
occasioned  him,  so  that,  if  he  has  paid  off 
or  bought  in  the  incumbrance,  he  is  entitled, 
at  least,  to  nominal  damages.  Demars  v. 
Koehler,  62  N.  J.  Law,  203,  208,  41  Atl.  720, 
72  Am.  St.  Rep.  642;  7  R.  C.  L.  p.  1163,  §3 
78,  79.  He  may  recover  the  amonnt  fairly 
and  justly  paid  by  him  for  the  removal  of 
the  incumbrance,  not  exceeding  the  value  of 
the  estate  (Hartshorn  v.  Cleveland,  62  N.  J. 
Law,  473,  482,  19  Atl.  974,  affirmed  54  N.  J. 
Law,  891,  25  Atl.  963;  7  R.  O.  L.  p.  1181, 
t  104),  although,  he  may  not  yet  liave  paid 
the  same  (Sparkman  v.  Gove,  44  N.  J.  Law, 
252;  Fagan  v.  Cadmus,  40  N.  J.  Law,  441, 
affirmed  47  N.  J.  Law,  549,  4  AU.  323).  An 
actual  eviction  or  disturbance  of  possession, 
unlike  a  suit  for  a  breach  of  a  covenant  of 
warranty,  is  not  necessary,  as  a  condition 
precedent,  to  maintaining  an  action  for  the 
breach  of  a  covenant  against  incumbrances. 
Carter  v.  Executors  of  Denman,  23  N.  J.  Law, 
260,  270 ;  Smith  v.  Wahl,  88  N.  J.  Law,  623, 
97  Atl.  201.  It  is  sufficient  that  eviction  may 
take  place.  Share  v.  Anderson,  7  Serg.  &  R. 
(Pa.)  43,  61,  10  Am.  Dec.  421. 

There  is  no  statute  of  limitations  In  New 
Jersey,  in  an  action  for  breach  of  a  covenant 
against  incumbrances,  barring  such  an  action, 
if  not  brought  within  20  years  after  breach 
of  the  covenant.  Hasselbuscdi  v.  Mohmking, 
76  N.  J.  Law,  691,  73  Atl.  961.  See  Parisen 
V.  New  York,  etc.,  R.  R.  Co.,  65  N.  J.  Law, 
413,  47  Atl.  477.  The  counsel  for  the  appel- 
lant concedes  this,  but  argues,  in  the  answer 
to  the  complaint,  he  set  up  accord  and 
satisfaction  as  a  bar  to  this  action,  thereby 
invoking  an  analogy  to  the  statute  of  limita- 
tions, citing  Gulick  v.  Loder,  13  N.  J.  Law, 
68,  28  Am.  Dec.  711,  Parisen  v.  New  York, 
etc.,  R.  R.  Co.,  65  N.  J.  Law,  413,  47  AtL 
477,  and  Blue  v.  Everett,  56  N.  J.  Eq.  339,  86 
AtL -960,  as  illustrative  cases  on  which  to 
rest  the  defense  of  presumptive  satisfaction, 
received  for  a  breach  of  the  covenant  The 
obvious  answer  to  this  is,  of  course,  those 
cases,  and  the  principle  therein  illustrated 
have  no  application  to  the  facts  of  this  case, 
as  disclosed  by  the  record.  At  best,  that  Is  a 
rebuttable  presumption  of  satisfaction.  The 
proceedings  in  the  Tukey  Case  show  satis- 
factorily the  reasons  for  the  delay.  No  evi- 
dence was  offered  or  produced  in  denial  o£ 
the  facts  shown  by  that  record;  the  facts  not 
being  controverted.  It  is  hardly  necessary  to 
pursue  this  discussion  further  in  detail.  The 
record  consists  entirely  of  exhibits  and  docu- 
ments, over  which  there  is  no  dispute.  No 
evidence  was  produced  to  controvert  the 
findings  of  the  decree  in  the  Iowa  courts  lu 
the  Tukey  Case. 

Upon  the  undisputed  facts  and  the  law  ap- 
plicable thereto  we  are  satisfied  that  the  re- 
spondent was  entitled  to  maintain  his  ooia- 


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BETTS  v.  MASSACHUSETTS  BONDINO  A  INa  00. 


257 


mon-law  action  In  the  courts  of  New  Jersey. 
In  our  view,  this  determines  the  case.  As 
stated  above,  the  amount  of  damages  as  cal- 
culated by  the  trial  court  is  not  challenged 
or  argued,  so  we  express  no  opinion  upon 
that  point 

Finding  no  error  in  the  record,  the  Judg- 
ment of  the  Warren  circuit  court  is  affirmed. 

GUMMERE,  C.  J.,  and  SWAYZB,  BER- 
GEN, WILLIAMS,  TAYLOR,  and  GARD- 
NER, JJ.,  dissenting. 

(90  N.  J.  I«w.  SB) 
BBTTS  V.  MASSACHUSETTS  BONDINa 
&  IMS.  GO.    (No.  142.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  ldl7.) 

1.  Inbubawcb  «s»146(2)  —  Constbuotion  or 
PoucY— Indemnity  Contbact. 

Policy  insuring  against  loss  from  liability 
by  law  for  damages  on  account  of  bodily  inju- 
ries or  death  suffered  in  consequence  of  error, 
mistake^  or  malpractice  in  assured's  profession 
o{  dentistry,  or  by  an^  assistant  of  the  insured 
vhile  acting  under  his  instructions,  is  neither 
technical  nor  ambiguous,  and  its  language  must 
Im  given  the  legal,  natural,  and  ordinary  mean- 
ing. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  I  294.] 

2.  Insubanck  «=»152(3)  —  Indemnity  Insub- 
ancb— pouoy— conbtbuction. 

Persons  entering  into  dentist's  indemnity  in- 
surance policy  will  be  presumed  to  have  con- 
tracted with  full  knowledge  of  the  legal  effect  of 
their  acts  under  the  laws  relating  to  the  prac- 
tice of  dentistry. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  i  312.) 

S.  IN90SANCK  «=»485— IrDUCNITT  iRSUBAltOB 

—Policy— CoNBTBUOTioN. 
An  insurer,  issuing  an  indemnity  policy  to 
a  dentist  to  protect  him  in  actions  for  his  al- 
leged malpractice,  may  rely  on  the  full  perform- 
ance of  the  dentist's  duties  under  the  law. 

[Ed.  Note. — For  other  cases,   see   Insurance, 
Cent  Dig.  {  U44.] 

4.  Insckanok  «=>437—lNDKKNrriE»— Liabil- 
ity. 

Under  policy  indemnifying  dentist  from  lia- 
bility for  alleged  malpractice  of  himself  or  as- 
sistant while  acting  under  liis  instructions,  the 
insurer  is  not  liable  for  a  judgment  obtained  by 
a  patient  who  was  operated  on  and  injured  by 
an  unregistered  and  unlicensed  assistant  acting 
in  violation  of  the  dentist's  instructions,  in  view 
of  2  Oomp.  St  1910,  pp.  1911,  1913,  1915,  gi 
1,  S,  and  12,  stating  the  requisites  of  practicing 
dentistry, 

5.  Insusanci!    «=»437— Indemnitt    Policy- 
Dentist— Unwcbnsbd  Assistant. 

That  such  assistant  was  duly  qualified  in 
another  state  does  not  make  his  act  In  practic- 
ing in  New  Jersey  without  a  license  and  without 
registration  any  the  less  a  violation  of  law,  so 
as  to  affect  the  case. 

6.  InSTTSARCE   ^:»4S7— IRDBMNITIXS— LIA3IL- 

ity. 
Dentist's  indemnity  policy,  avoiding  liability 
for  any  claim  against  the  assured  or  his  as- 
sistant arising  from  violation  of  any  law  or  ordi- 
nance on  the  part  of  the  assured,  creates  no  lia- 
bility for  a  claim  arising  from  injuries  to  a 
patient  from  an  unlicensed  and  unregistered  as- 


sistant, regardless  of  whether  the  violation  of 
law  was  the  permanent  cause  of  the  injury. 

7.  Inbubance  ®=>437— Indemnities— LiABiL- 

ITT. 
A  dentist  cannot  recover  on  an  indemnity 
policy  for  a  claim  arising  from  malpractice  of 
nis  assistant,  who  was  unlicensed  when  In  the 
application  he  held  his  assistant  out  as  a  li- 
censed dentist 

Swayze,  Parker,  Black,  White,  Heppenheimer, 
and  Williams,  JJ.,  dissenting. 

Appeal  from  Supreme  (3ourt 

Action  by  fi>dwln  Betts  against  the  Massa- 
chusetts Bonding  ft  Insurance  Company. 
Judgment  for  plaintiff,  and  defendant  ap- 
peals.   Reversed. 

Kaliach  &  Kalisch,  of  Newa^  (Isldor 
Kaliscb,  of  Newark,  on  the  brief),  for  appel- 
,Iant.  Joseph  Stelner,  of  Newark,  for  ap- 
pellee. 

KALISCH,  J.  Tills  case  is  a  sequel  to 
Klltcta  V.  Betts,  decided  by  us  at  the  June 
term,  1918,  and  reported  In  98  Atl.  427. 
There  it  appears  that  the  respojident,  herein, 
a  licensed  dentist,  was  sued  for  malpractice 
by  one  Klitch,  for  Injuries  inflicted  npon  his 
Jaw  by  one  Snively,  an  assistant  to  the  re- 
spondent, while  in  the  performance  of  a  den- 
tal operation.  It  further  appears  that  Dr. 
Betts,  the  defendant  in  that  case  and  the  re- 
spondent herein,  endeavored  to  defend  upon 
the  ground  that  his  assistant,  Snively,  had 
done  an  unauthorized  and  illegal  act  in 
operattng  on  KUtch's  Jaw  In  the  absence  of 
and  not  under  the  supervision  of  the  respond- 
ent; Snively  not  being  licensed  to  practice 
dentistry  in  this  state.  We  held  that  Dr. 
Betts  had  so  arranged  the  conduct  of  his 
business  office  as  to  hold  out  Snively  as  Ills 
lawful  assistant  and  therefore  was  answer- 
able for  the  assistant's  negligence  to  Klitch, 
and  upon  that  ground  we  sustained  the  judg- 
ment obtained  against  Betts.  Dr.  Betts,  hav- 
ing paid  the  Judgment,  brought  an  action 
against  the  appellant  insurance  company  to 
recover  the  amount  ao  paid,  basing  his  action 
on  a  poUcy  of  insurance  issued  to  him  by  the 
appellant  company,  whereby  the  company  had 
agreed  to  protect  him,  as  a  llcaised  dentist 
practicing  in  this  state,  against  loss  from 
liability  to  any  person  or  persons,  upon  cer- 
tain terms  and  conditions,  to  be  later  herein 
set  forth  and  considered.  The  case  was  tried 
at  the  Essex  circuit  and  by  stlpulaUon  the 
record  and  testimony  in  the  case  of  Klitch  v. 
Betts,  supra,  together  with  the  record  of  this 
court  in  that  case,  were  put  in  evidence,  with 
some  slight  additional  testimony.  Upon  these 
records  and  testimony  Betts  recovered  a 
Judgment  against  the  insurance  company, 
from  which  it  has  appealed. 

The  argument  addressed  to  us,  by  counsel 
for  appellant,  for  a  reversal  of  the  Judgment, 
is  that  the  respondent  was  not  entitled  to  re- 
cover a  Judgment  against  the  appellant  be- 
cause, by  the  uneontroverted  testimony  in  the 
case,   it  appears  that  the  negligent  act  of 


«s>Far  otb»t  oaaea  aw  (aoM  tople  and  KBT-NUMBBK  In  all  Ksr-Numbarad  DtsesU  and  IndaZM 
101  A.— 17 


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101  ATI^AIWIC  KBPORTBB 


(K.  J. 


Snlvely,  for  which  the  respondent  was  held 
answerable  In  damages,  was  not  covered  by 
the  contract  of  Indemnity,  In  that  Snlvely 
was  not  a  licensed  and  registered  dentist, 
and  therefore,  under  the  law  of  this  state, 
was  not  only  not  authorized  to  perform  a 
dental  operation,  but  was  expressly  forbid- 
den to  do  so,  the  statute  making  It  a  misde- 
meanor, and  that  by  the  terms  of  the  jwUcy 
It  was  expressly  ag^reed  that  the  company 
should  not  be  liable  under  the  policy  for  any 
claim  against  the  assured  or  any  assistant 
arising  from  the  violation  of  any  law  or  or- 
dinance on  the  part  of  the  assured  or  any 
assistant;  that  the  malpractice  or  error  In 
the  dental  operation  performed  by  Snlvely 
was  not  done  while  acting  under  the  as- 
sured's  Instruction,  which  Is  one  of  the  re- 
quirements of  the  policy  as  a  basis  of  the 
right  of  the  assured  to  Indemnity ;  that  the 
respondent  knew  that  Snlvely  was  not  licens- 
ed and  registered  to  practice  dentistry  In 
this  state,  and  nevertheless  was  employed 
and  held  out  by  respondent  as  his  assistant 
in  performing  dental  <^>eratlons,  which  was 
In  express  violation  of  the  dentistry  act, 
which  statute  makes  such  conduct  a  misde- 
meanor, and  therefore  the  respondent  does 
not  come  into  court  with  clean  hands,  and 
should  not  be  permitted  to  make  his  unlawful 
act  the  basis  of  a  right  to  recover;  that  in 
the  application  for  the  policy  of  Insurance 
the  respondent  stated  that  he  employed  no 
physician,  surgeon,  or  dentist  regularly  on  a 
salary  or  commission  except  X>r.  Charles  L. 
Sniv^y,  and  thereby  he  falsely  represented 
that  Snlvely  was  a  licensed  and  registered 
dentist  of  this  state,  and  that,  being  so,  he 
subjected  the  Insurer  to  a  risk  which  was  not 
contemplated  by  it,  and  which  was  concealed 
from  the  Insurer,  and  therefore  the  contract 
of  Insurance  became  void;  and,  lastly,  that 
no  notice  was  given  by  respondent  to  the 
company  of  any  claim  made  by  Klitch  upom 
him  within  the  time  required  by  the  terms 
of  the  policy. 

Turning  to  the  policy  of  Insurance,  we  find 
that  by  its  terms  the  Insurance  company 
agr«ed  to  protect  the  respondent: 

(1)  "Against  loss  from  the  liability  by  law 
upon  the  assured  for  damages  on  account  of  bod- 
ily injuries  or  death  suffered  by  any  person  or 
persons  in  consequence  of  any  alleged  error,  or 
mistake  or  malpractice  occurring  in  the  practice 
of  the  assured's  profession  as  described  in  the 
application  for  this  policy";  (2)  "against  loss 
from  the  liability  imposed  by  law  u^on  the  as- 
sured for  damages  on  account  of  bodily  injuries 
or  death  suffered  by  any  person  or  persons  in 
consequence  of  any  alleged  error  or  mistake  or 
malpractice,  by  any  assistant  of  the  assured 
while  acting  under  the  assured's  instructions." 

This  undertaking  of  the  insurer  Is  made 
by  the  policy  subject  to  certain  conditions 
contained  therein,  but  for  the  purpose  of  this 
case  it  will  suffice  to  set  forth  conditions  B 
and  C.  Condition  B  provides  that  the  com- 
pany shall  not  be  liable  under  the  policy  for 
any  claim  against  the  assured  or  any  assist- 
ant arising  from  the  violation  of  any  law  or 


ordinance  on  the  part  of  the  assured.  Condi- 
tion C  provides  that  the  assured  shall  give 
Immediate  written  notice  of  any  charge  of 
error  or  mistake  or  malpractice,  and  of  any 
claim  for  damages  covered  by  this  policy  to 
the  home  office  of  the  company  or  Its  au- 
thorized agent 

[1]  The  respective  rights  of  the  litigants  in 
this  controversy  must  be  determined  by  the 
contract  of  insurance;  The  language  of  the 
contract  is  neither  technical  nor  ambiguous, 
and  therefore  no  difficulty  can  Interpose  it- 
self to  prevent  applying  the  well-recognized 
canon  of  construction  by  giving  the  language 
employed  its  legal,  natural,  and  ordinary 
meaning.  This  court  in  Bennett  v.  Van  Bl- 
per,  47  N.  J.  Bq.  on  page  566,  22  AtL  1056, 14 
li.  R.  A.  342,  24  Am.  St  Rep.  416,  speaking 
through  Scudder,  J.,  said: 

"Where  there  la  no  fixed  legal  or  technical 
meaning  which  the  court  must  follow  in  the  con- 
struction of  a  contract  then  'the  best  construc- 
tion,' says  Chief  Justice  Gibson,  'is  that  which 
is  made  by  viewing  the  subject-matter  of  the 
contract  as  the  mass  of  mankind  would  view  it ; 
for  it  may  t>e  safely  assumed  that  sucli  was 
the  aspect  in  which  the  parties  themselves  view- 
ed it.  A  result  thus  obtained  is  exactly  what  is 
obtained  from  the  cardinal  rule  of  intention.' " 

Therefore  upon  the  threshold  of  the  pres- 
ent Inquiry  into  what  the  legal  obligations 
and  rights,  flowing  from  the  agreement  be- 
tween Insurer  and  insured,  were  and  are, 
we  must  first  pay  due  regard  to  the  fact  that 
state  legislation,  for  the  protection  of  the 
public  against  charlatanism  and  Imposition, 
has  put  the  practice  of  dentistry  under  stat- 
utory controL  Section  1  of  the  act  relating 
to  dentistry  (2  O.  S.  p.  1911)  provides  that 
only  persons  who  are!  now  duly  licensed  and 
registered  pursuant  to  law,  and  those  who 
may  hereafter  be  duly  licensed  and  register- 
ed as  dentists  pursuant  to  the  provisions 
of  this  act,  shall  be  deemed  licensed  to  prac- 
tice dentistry  in  this  state. 

The  eighth  section  of  the  act  provides,  in- 
ter alia,  that  the  act  shall  not  be  construed 
to  prohibit  an  unlicensed  person  from  per- 
forming medianical  work  upon  inert  matter 
in  a  dental  office  or  laboratory,  or  to  prohibit 
a  registered  student  of  a  licensed  dentist 
from  assisting  his  preceptor  in  dental  opera- 
tions while  In  his  presence  and  under  his 
direct  and  Immediate  personal  supervision. 
This  section  further  provides  that  a  person 
shall  be  regarded  as  practicing  dentistry 
within  the  meaning  of  the  act  who  shall  use 
the  words  "doctor  of  dental  surgery,"  "doc- 
tor of  dental  medicine,"  or  the  letters,  "D.  D. 
S."  or  "D.  M.  D.,"  in  connection  with  his 
name,  or  any  other  title  intended  to  Imply  or 
designate  him,  etc.,  as  a  practitioner  In  all 
its  branches. 

Section  12  of  the  act  provides  that  any 
person,  company,  or  association,  practicing  or 
holding  himself  or  itself  out  to  the  public  as 
practicing  dentistry,  not  being  at  the  tlm^ 
of  said  practice  or  holding  out  legally  llceaa- 


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BETTS  v.  MASSACHUSETTS  BONDING  «k  INS.  OO. 


269 


ed  to  practice  such  iu  this  state,  shall  be 
guilty  of  a  misdemeanor. 

[2]  This  being  the  established  law  regard- 
ing the  practice  of  dentistry  In  this  state  at 
the  time  the  parties  to  the  contract  entered 
into  it,  they  will  be  held  to  have  done  so 
with  full  knowledge  of  the  legal  effect  of 
their  contractual  act 

[3]  The  appellant  was  entitled  to  rely  on 
the  safeguards  which  the  law  erected  against 
Improper  and  Illegal  practice  of  dentistry 
which  tends  to  lead  to  error,  mistake,  or 
malpractice. 

[4]  The  re4»rd  In  Klitch  r.  Betts,  supra, 
establishes  the  uncontroverted  fact  that 
Snively,  both  anilcensed  and  unregistered  to 
practice  dentistry,  did,  as  an  assistant  to  Dr. 
Betts,  a  licnnsed  dentist,  in  the  dental  oSice, 
and  in  the  absence  of  Dr.  Betts,  perform 
several  dental  operations  upon  Klitch  and 
treated  the  tatter's  injured  jaw  resulting 
from  such  operations.  These  acts  were  clear- 
ly In  express  violation  of  the  statute  which 
forbids  dental  operations  by  an  unlicensed 
person.  The  record  also  clearly  shows  that 
Betts  employed  and  permitted  Snively  to  per- 
form dental  operations  while  he  was  an  un- 
licensed person,  which  was  a  clear  violation 
of  the  policy. 

Snively's  acts,  being  both  unlawful  and  un- 
authorized and  not  having  occurred  while 
acting  under  the  assured's  instruction,  by 
force  of  the  provision  of  the  Insurance  con- 
tract which  limits  the  liability  of  the  insur- 
ance company  to  injuries  or  death  in  conse- 
quence of  any  alleged  error  or  mistake  or 
malpractice  by  an  assistant  of  the  assured 
while  acting  under  the  assured's  Instruction, 
cannot  therefore  operate  to  create  any  liabil- 
ity on  part  of  the  insurance  company  to  In- 
demnify the  resirandent. 

Besides  this  conclusive  bar  to  the  respond- 
ent's right  to  a  recovery,  condition  B  of  the 
policy  of  insurance  expressly  provides  that 
the  insurance  company  shall  not  be  liable  un- 
der the  policy  for  any  claim  against  the  assur- 
ed or  any  assistant  arising  from  the  violation 
of  any  law  or  ordinance  on  part  of  the  assur- 
ed. The  Insurer  is  entitled  to  the  protection 
wbidi  this  clause  afTords  it.  It  is  of  the  very 
essence  of  the  contract.  It  Is  difficult  to  per- 
ceive in  what  reasonable  way  the  insurance 
company  could  have  protected  itself  against 
claims  arising  out  of  Illegal  acts  or  acts  by 
unauthorized  persons  than  the  one  agreed 
upon  between  the  parties  to  the  contract,  by 
limiting  the  liability  of  the  company  to 
claims  arising  out  of  mistakes,  error,  or  mal- 
practice, against  a  dentist  or  his  assistant  in 
the   lawful  practice  of  dentistry. 

[5]  The  fact  that  the  assistant  was  a  den- 
tist of  another  state  does  not  make  it  the 
less  a  substantial  violation  of  the  law  of  this 
state  and  his  act  an  unauthorized  one.  In 
the  legal  aspect  his  act  stands  upon  the  same 
level  as  if  it  l^id  been  performed  by  a  butch- 1 


er  or  a  blacksmith,  or  any  other  unquali- 
fied person. 

[6]  It  is  suggested  that  condition  B  has 
only  reference  to  where  the  violation  of  the 
law  Is  the  proximate  cause  of  the  Injury. 
We  must  bear  in  mind  that  we  are  dealing 
with  liability  arising  out  of  contractual  re- 
lations and  not  with  liability  arising  out  of 
a  tort. 

There  Is  no  legal  obstacle  in  the  way  to 
parties  agreeing,  as  in  this  case,  what  shall 
or  shall  not  be  the  basis  of  liability.  If  they 
fix  remote  causes  as  a  basis,  it  is  not  for  us 
to  say  that  they  intended  to  fix  proximate. 
In  the  present  case,  however,  it  might  be 
properly  said  that  the  violation  of  law,  in 
tliat  the  unauthorized  act  of  an  unlicensed 
dentist  In  this  state  caused  the  malpractice, 
was  in  a  certain  sense  the  proximate  cause. 

The  record  in  Klitch  v.  Betts,  supra,  estab- 
lishes that  Injuries  from  which  Klitch  suf- 
fered were  inflicted  upon  him  by  Snively,  the 
respondent's  assistant,  in  a  dental  operation. 
Before  a  person  can  lawfully  practice  dentis- 
try in  this  state  he  must  submit  himself  to 
both  a  written  and  oral  examination  by  the 
state  board  of  registration  and  examination 
in  dentistry,  and  If  the  board  finds  the  appli- 
cant qualified  to  practice  dentistry  and  of 
good  moral  character,  he  will  be  entitled  to 
a  Ucense  and  be  r^stered.  Snively  had 
never  submitted  himself  to  any  such  a  test 
as  to  his  qualifications  in  order  to  obtain  a 
license,  and  therefore,  in  the  eye  of  the  law, 
his  status  was  that  of  a  person  not  qualified 
to  practice  dentistry.  It  was  the  direct  re- 
sult of  Snively's  unlawful  act,  coupled  with 
his  want  of  ordinary  skill,  that  caused  the 
Injury.  It  would  not  be  reasonable  to  hold 
the  Insurer  liable  for  the  malpractice  of  an 
assistant  whose  act  was,  to  the  knowledge  of 
Betts,  contrary  to  law. 

[7]  We  think  also  that  the  respondent  is 
debarred  from  recovering  on  the  policy  be- 
cause It  appears  that  the  basis  of  his  claim 
of  recovery  is  the  unlawful  act  of  Snively, 
in  which  the  respondent  participated  by  hold- 
ing Snively  out  as  a  licensed  dentist  to  the 
public  and  to  the  appellant  It  is  to  be  ob- 
served tliat  in  the  contract  of  Insurance  the 
respondent  makes  and  warrants  the  truth  of 
the  statements  made  by  him  in  applying  for 
the  Insurance.    He  made  this  statement: 

"I  employ  no  physician,  sutkpoji,  or  dentist 
regularly  or  on  a  salary  or  commission  except 
as  follows;    Dr.  Charles  L.  Snively." 

It  has  already  been  pointed  ont  tliat  a 
person  shall  be  regarded  as  practicing  den- 
tistry vrlthln  the  meaning  of  the  'dentistry 
act  who  shall  use  a  title,  eta  Therefore, 
when  the  respondent  made  the  statement  and 
gave  the  title  "Dr."  to  Snively,  knowing  that 
Snively  was  not  entitled  thereto  under  the 
law  of  this  state,  he  made  an  untruthful 
statement.  It  is  manifest  that  the  truthful- 
ness of  this  statement  was  highly  important 
to  the  insurer.    For  it  determined  one  of  the 


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101  ATLANTIC  KEPORTBR 


(N.J 


risks  that  the  Insurer  was  to  insure  against. 
It  was  one  of  the  risks  to  be  covered  by  the 
policy  of  Insurance,  and  therefore,  It  was 
essential  that  the  statement  In  relation  there- 
to should  be  true. 

We  need  not  spend  time  to  demonstrate 
that  the  risk  of  mistake,  error,  etc.,  Is  great- 
er In  the  case  of  one  who  is  not  legally  qual- 
ified to  practice  \lentl8try  than  in  the  case 
of  one  who  is. 

The  Legislature  has  declared  what  the 
qualification  to  practice  dentistry  shall  be, 
and  in  the  absence  of  a  license  to  practice 
dentistry,  tbere  will  be  an  absence  of  pre- 
sumption of  qualification.  It  Is  therefore  ap- 
parent that  the  object  of  requiring  a  state- 
ment as  to  the  status  of  the  person  or  per^ 
sons  is  to  apprise  the  insurance  company  of 
the  risk  which  It  was  insuring  against. 

Upon  the  question  whether  the  insured  will 
be  permitted  to  recover  on  his  contract  where 
he  tiaa  sustained  a  loss,  which  loss  arose 
through  the  act  of  an  assistant  in  violating 
the  law  related  to  the  subject-matter  of  the 
contract,  the  lawful  practice  of  dentistry, 
and  in  which  violation  the  insured  either  ac- 
tively or  passively  participated,  we  are  un- 
able to  distinguish,  on  grounds  of  public  pol- 
icy, the  present  case  from  the  case  of  Hetzel 
V.  Wasson  Piston  Ring  Co.,  recently  decided 
by  tills  court,  and  reported  in  98  Atl.  308. 

In  that  case  it  was  held  that  the  father 
dlsKititled  himself  of  his  right  of  action  to 
recover  for  loss  of  the  services  of  his  son, 
who  was  injured  while  in  the  employ  of  the 
company,  because  it  appeared  that  the  son 
was  under  14  years  of  age,  and  hence  was 
employed  in  violation  of  a  statute  which 
imposed  a  penalty  of  $50  on  any  corporation, 
firm,  individual,  parent,  or  custodian  who 
permitted  such  employment.  Gummere,  O. 
J.,  speaking  for  this  court,  on  page  306  of 
98  Atl.,  says: 

"The  injury  to  the  plaintifTs  son  Is  the  direct 
result  of  the  joint  violation  of  the  act  of  1904 
by  the  defendant  and  the  plaintiff,  and  the  strip- 
piDg  of  the  child  of  that  protection  which  the 
Legislature  by  that  statute  declared  he  should 
have.  The  tjlaintiS  can  take  nothing  by  way 
of  compensation  for  a  loss  which  has  come  to 
him  as  the  direct  reaalt  of  his  own  violation  of 
law." 

In  the  present  case  the  insurance  company 
is  a  wholly  Innocent  party,  which  was  not 
the  fact  as  to  the  company  in  the  case  Just 
referred  to,  and  therefore  there  is  a  stronger 
reason  for  denying  the  respondent's  right 
to  a  recovery. 

Furthermore  it  is  to  be  observed  that  the 
statement  made  by  the  respondent  in  his  ap- 
plication for  insurance  that  Dr.  Snively  was 
his  assistant  was  a  material  statement,  since 
it  related  to  the  risk  which  the  company  was 
taking,  and,  besides,  the  respondent  warrant- 
ed the  statement  to  be  true  when  he  knew 
that  Snively  was  not  authorized  to  practice 
dentistry  In  this  state.    This  of  itself  is  suf- 


ficient to  avoid  the  appellant's  liability  on 
the  policy. 

Having  reached  the  result  that  the  trial 
Judge  erred  in  not  directing  a  verdict  for  the 
appellant,  we  find  it  unnecessary  to  consider 
the  other  matters  assigned,  as  grounds  of 
appeal. 

The  Judgment  will  be  reversed. 

SWAYZB,  PARKER,  BLACK,  WHITE. 
HEJPPE^NHBIMEB,  and  WILLIASIS,  33.,  dis- 
sent 

(S7  N.  J.  Eq.  462) 
COX  V.  BROWN  et  al.    (No.  42/383.) 

(Court  of  Chancery  of  New  Jersey.     June  16, 
1917.) 

1.  Specifio   Pebtobmance   ®=»105(3)— Delay 
IN  Bbinoino  Sirrr— Effect— Limitations. 

In  administering  the  remedy  of  specific  per- 
formance and  cancellation  of  instruments,  the 
period  of  delay  which  will  be  fatal  to  the  relief 
sought  does  not  depend  upon  the  statute  of  limi- 
tations, but  depends  mainly  upon  the  circum- 
stances and  effect  of  the  delay  in  the  particular 
case,  and  the  suit  may  be  dismissed  for  delay 
leas  than  the  period  fixed  by  the  statute  limiting 
the  pursuit  of  legal  remedies. 

[Ed.  Note. — For  other  cases,  see  Specific  Per- 
formance, Cent  Dig.  §§  327-341.] 

2.  TRVam   4s»365(2)— •Enfobobvenis- Eftxct 

OF  DEI.AT. 
The  rule  that  the  enforcement  of  an  express 
or  subsisting  trust  by  a  cestui  que  trust  is  not 
barred  by  lapse  of  time  or  the  statute  of  limita- 
tions is  subject  to  exceptions  arising  from  the 
conduct  of  the  parties  m  relation  to  the  trust 
property. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Gent. 
Dig.  {  571.] 

3.  Tbubtb  9=s>365(4)  —  Establishment  and 
Enfobcement — Limitation  or  Actionr 

The  statute  of  limitations  mav  afford  a  bar 
to  relief  in  a  suit  to  establish  and  enforce  a  re- 
sulting trust. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
XHg.  U  570,  672.] 

4.  Limitation  of  Actions  ®=3l82(2)— Puead- 
INO  OF  Statute— Nbcesbitt. 

It  ia  essential  in  order  that  the  statute  of 
limitations  may  bar  an  action  that  the  statute 
be  pleaded, 

[Ed.  Note.— For  other  cases,  see  limitation  of 
Actions,  Cent  Dig.  Sg  676,  67a] 

5.  Tbtjsts    «=9371'(I5)— Enfobcbment^Laches 
— Pleading. 

Relief  may  be  denied  in  a  suit  in  equity  to 
enforce  a  resulting  trust  where  the  claim  as- 
serted is  a  stale  claim,  though  that  defense  is 
not  pleaded. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  I  686.] 
8.  Pabtnebship      «=>258(6)  —  PABTNEBsan* 

PBOPKBTT— ESTABLIBHMKNK  OF  INTEBEST 

Laches. 
Where,  in  a  partition  suit  by  a  surviving 
putner  seeking  to  establish  his  partnership  in- 
terest in  property  the  legal  title  to  which  had 
stood  for  more  than  40  years  in  the  name  of  the 
deceased  partner,  it  appeared  that  during  tlio 
entire  time  the  partnership,  and  the  most  in- 
timate and  confidential  socnal  and  business  re- 
lations had  existed  between  the  two  partners, 
who  were  brothers,  and  that  the  property  had 
been  treated  by  both  as  partnership  property, 
and  that  failure  to  have  the  legal  title  trans- 


«=9For  otber  cases  s«e  sajne  topic  and  KBT-NUMBER  la  all  Ke7-Mumber«d  Dlgasta  and  ladaaa 


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261 


ferred  to  tlie  pftrtnersUp  was  merely  a  matter 
of  neglect  arising  from  the  mutual  confidence 
of  the  partners  and  from  engrossment  In  their 
business,  and  that  no  rights  of  creditors  were 
involved,  the  complainant  was  not  precluded 
by  the  delay  in  asserting  his  claim  from  obtain- 
ing the  relief  sought. 

[Ed.  Note.— For  other  cases,  see  Partnership, 
Cent  Dig.  iS  568,  593.] 

Partition  by  Bowman  S.  Cox  against  Al- 
bert Brown  and  others.  Decree  advised  for 
complainant. 

A.  H.  Swackhamer,  of  "Woodbury,  for  com- 
plainant. D.  O.  Watklns,  of  Woodbury,  for 
defendants  Anna  R.  Cox  and  others. 

LEAllINO,  V.  C.  The  only  controversy 
in  this  suit  is  whether  a  certain  tract  of 
land  which  is  described  In  the  bill  as  tract 
No.  1  is  the  property  of  the  heirs  at  law  of 
Isaac  O.  Cox,  deceased,  or  is  the  property  of 
a  certain  ct^artnershlp  which  was  composed 
of  the  said  Isaac  Q.  Cox  and  his  brother. 
Bowman  S.  Cto,  at  the  date  of  the  decease 
of  Isaac. 

Ibe  record  title  to  the  property  stands  in 
the  name  of  Isaac  O.  Cox,  but  the  proofs  in 
the  case  have  established  with  a  certainty 
amounting  practically  to  a  complete  demon- 
stration that  the  property  was  purchased  at 
the  instance  of  the  two  partners  for  the 
partnership  with  assets  of  the  partnership, 
and  that  for  convenience  the  title  was  taken 
in  the  name  of  Isaac  for  the  benefit  of  the 
partnership,  and  that  since  the  purchase  un- 
til the  death  of  Isaac  the  property  has  at 
all  times  been  treated  by  the  two  partners 
as  partnership  property.  The  evidence  so 
clearly  establishes  these  facts  that  any  dis- 
cussion of  the  details  of  the  evidence  seems 
unnecessary. 

The  only  hesitancy  in  advising  a  decree  to 
the  effect  above  stated  arises  from  a  claim 
upon  the  part  of  defendants  that  complain- 
ant, the  surviving  partner,  has  allowed  the 
legal  title  to  stand  in  the  name  of  his  brother 
for  so  long  a  time  that  a  court  of  equity 
should  not,  as  against  the  heirs  of  Isaac,  at 
this  late  date  decree  that  the  property  la  a 
partnership  asset. 

An  examination  of  the  authorities  will  dis- 
pose that  the  effect  of  delay  in  the  assertion 
of  rights  in  a  court  of  equity  is  not  only  pe- 
caliarly  interwoven  with  and  dependent  upon 
the  special  circumstances  surrounding  the 
individual  case,  but  is  also  measurably  de- 
pendent upon  the  nature  of  the  primary  right 
asserted,  and  also  upon  the  nature  of  the  re- 
lief sought. 

[1]  In  administering  the  remedy  of  spe- 
cific performance  and  cancellation  of  instru- 
ments the  period  of  delay  which  will  be  fatal 
to  the  relief  sought  does  not  depend  upon  the 
statute  of  limitations,  but  will  be  considered 
and  determined  with  reference  mainly  to  the 
drcnmstances  and  effect  of  the  delay  in  the 
particular  case,  and  the  suit  may  be  dis- 
missed for  delay  less  than  the  period  fixed 
by  tJie  statute  limiting  the  pursuit  of  legal 


remedies.    Lutjen  t.  Lntjen,  64  N.  J.  Eq.  773, 

53  Atl.  625,  was  a  suit  of  the  latter  nature, 
and  the  rule  there  defined  recognizes  that  a 
period  of  delay  less  than  the  statutory  period 
may  be  fatal  when  it  is  operative  to  render 
the  court  unable  to  feel  confident  of  its  abili- 
ty to  ascertain  the  troth  as  well  as  it  could 
have  done  when  the  subject  for  investigation 
was  recent,  and  before  the  memories  of  those 
who  had  knowledge  of  the  material  facts 
had  become  faded  and  weakened  by  time. 

[2]  On  the  other  hand,  where  the  substan- 
tive right  asserted  Is  the  enforcement  by  a 
cestui  que  trust  of  an  express  and  subsisting 
trust,  neither  lapse  of  time  nor  the  statute 
of  limitations  will  ordinarily  be  allowed  to 
defeat  the  relief  sought.     Stimis  v.  Stimls, 

54  N.  J.  £q.  17,  S3  AtL  468.  But  even  that 
rule  is  subject  to  exceptions  arising  from 
conduct  of  the  parties  in  relation  to  the 
trust  property.  See  Starkey  v.  Fox,  62  N. 
J.  Ski.  758,  at  page  768,  20  AO.  211. 

[3, 4]  Again,  where  the  suit  is  to  establish 
and  enforce  a  resulting  trust,  the  statute  of 
limitations  may  afford  a  bar  to  relief.  Mc- 
Clane's  Adm'x  v.  Sheperd's  Ex'r,  21  N.  J.  Eq. 
76,  at  page  79.  The  present  suit  is  of  that 
nature ;  for  the  equitable  title  of  the  partner- 
ship to  the  property  in  question  results  from 
the  purchase  of  the  property  by  a  partner 
with  partnership  assets.  But  in  this  suit 
the  statute  of  limitations  has  not  been  plead- 
ed, and  to  render  that  statute  available  as 
a  bar  it  should  be  pleaded.  3  Daniel's  Ch. 
PL  &  Pr.  {  2116,  note;  1  Daniel's  Ch.  PL 
&  Pr.  78L 

[5]  But  relief  may  be  denied  in  equity  in 
all  cases  of  the  nature  above  referred  to 
when  the  claim  asserted  is  a  stale  claim,  and 
that  defense  need  not  be  pleaded.  In  Sulli- 
van V.  Portland  &  Kennebec  It.  K.  Co.,  94  U. 
S.  806,  24  L.  Ed.  324,  the  rule  tonchliig  the 
enforcement  of  stale  claims  in  a  court  of 
equity  is  stated  as  follows: 

'To  let  in  the  defense  that  the  claim  is  stale, 
and  that  the  bill  cannot,  therefore,  be  supported, 
it  is  not  necessary  that  a  foundation  shall  be  laid 
by  any  averment  in  tiie  answer  of  the  defend- 
ants. If  the  case,  as  it  appears  at  the  hearing, 
is  liable  to  the  objection  by  reason  of  tiie  laches 
of  the  complainants,  the  court  will  upon  that 
ground  be  passive,  and  refuse  rehef.  Every  case 
is  governed  chiefly  by  its  own  circumstances; 
sometimes  the  analogy  of  the  statute  of  limita- 
tions is  applied  ;  sometimes  a  longer  period  than 
that  prescribed  by  the  statute  is  required ;  in 
some  cases  a  shorter  time  is  sufficient;  and 
sometimes  the  rule  is  applied  where  there  is 
no  statutable  bar.  It  is  competent  for  the  court 
to  apply  the  inherent  principles  of  its  own  sys- 
tem of  jurisprudence,  and  to  decide  accordingly." 

The  most  recent  general  statement  of  the 
role  touching  laches  is  to  be  found  in  Soper 
v.  Casco,  85  N.  J.  Eq.  165,  174,  95  Aa  1016, 
1020,  as  follows: 

"The  general  rule  is  well  settled  that  be  who, 
without  adequate  excuse,  delays  asserting  his 
rights  until  the  proofs  respecting  the  transac- 
tion out  of  which  he  claims  his  rights  arose  are 
so  indeterminate  and  obscure  that  it  is  impossi- 
ble for  the  court  to  see  whether  what  is  as- 
serted to  be  justice  to  him  is  not  injustice  to 
his  adversary,  has  no  right  to  reUet     HcCar- 


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101  ATLANTIC  REPORTER 


(N.J. 


tin  T.  Trapbagen,  43  N.  J.  Eq.  324  [11  Atl.  i 
166],  affirmed  45  N.  J.  Bq.  265  [17  Atl.  800]." 

The  authorities  above  cited  sufficiently  dis- 
close the  great  extent  to  which  the  dr- 
cumstances  surrounding  the  individual  case 
necessarily  enter  into  and  control  the  force 
of  the  defense  of  laches  in  a  court  of  equity. 

In  the  present  case  the  partnership  was 
formed  by  the  two  brothers  when  complain- 
ant, the  younger  brother,  was  yet  a  minor; 
the  legal  title  to  the  property  in  question  was 
obviously  taken  In  the  name  of  the  older 
brother  for  that  reason.  The  legal  title  was 
allowed  to  so  remain  for  over  40  years,  when 
tha  older  brother  died.  But  during  all  that 
time  the  partnership  and  the  most  intimate 
and  confidential  social  and  business  relations 
of  the  two  brothers  continued  unchanged. 
The  residence  on  the  property  in  question 
was  occiqtied  by  the  older  brother,  but  the 
remainder  of  the  property,  including  the 
foundry  where  the  firm  business  was  con- 
ducted, was  occupied  by  the  firm.  Another 
.residence  property,  admittedly  belonging  to 
the  partnership,  was  occupied  by  the  younger 
brother,  and  no  rent  was  paid  by  either 
brother  for  the  dwellings  occupied  by  them, 
and  no  rent  was  taken  into  account  for  the 
occupancy  of  the  foundry,  and  the  evidence 
clearly  discloses  that  at  all  times  during  the 
life  of  the  partnership  the  entire  property 
now  in  question  was  treated  by  trath  part- 
ners as  firm  property.  While  much  of  this 
evidence  relates  to  a  period  of  such  an  early 
date  as  to  invite  the  most  careful  scrutiny  as 
to  its  accuracy,  most  of  it  is  of  a  nature  to 
practically  demonstrate  its  truth.  At  the 
conclusion  of  the  testimony  no  substantial 
doubt  could  be  said  to  exist  that  the  property 
was  originally  purchased  for  the  partnersUp 
with  partnership  funds  and  had  always  been 
regarded  by  both  partners  as  partnership 
property.  The  failure  to  have  the  legal  title 
transferred  to  the  partnership  was  obviously 
merely  a  matter  of  neglect  arising  primarily 
from  the  mutual  confidence  of  the  partners 
and  their  absorbing  engrossment  in  their  life 
work  of  making  money  In  their  Joint  enter- 
prise. 

No  rights  of  creditors  are  involved;  the 
f:lngle  question  is  whether  the  property  be- 
longed to  the  elder  brother  at  the  time  of  his 
death  or  to  the  firm.  There  has  been  no 
unreasonable  delay  on  the  part  of  complain- 
ant since  the  death  of  his  brother  in  asserting 
the  title  of  the  firm.  It  will  be  thus  observed 
tliat  the  title  now  asserted  by  complainant  is 
not  a  title  In  himself  In  his  own  right ;  but 
a  title  in  behalf  of  the  partnership.  That 
circumstance  is  not  without  force  in  con- 
sidering the  effect  to  be  given  to  the  claim 
of  laches ;  for,  if  the  property  was  firm  prop- 
erty, it  was  at  all  times  during  the  life  of  the 
partnership  equally  the  duty  of  both  part- 
ners to  have  the  legal  title  transferred  to  the 
partnership.    A  similar  duty  of  a  trustee  may 


be  said  to  exist  in  all  cases  of  resulting 
trusts ;  but  where  a  partnership  is  the  equi- 
table owner,  rights  of  creditors  are  involved, 
and  both  partners  owe  to  firm  creditors  the 
duty  to  manifest  the  legal  title  in  the  part- 
nership. The  laches  which  Is  now  urged 
against  the  surviving  partner  is  accord- 
ingly laches  of  the  partnership  in  which 
both  partners  liave  been  equally  negligent. 
In  that  view  I  think  the  consequences  of 
neglect  in  the  performance  of  tliat  duty 
cannot  be  equitably  visited  upon  complain- 
ant to  the  same  extent  as  might  be  done 
for  the  failure  to  seaaonahly  assert  an  eQui- 
table  title  In  himself. 

[6]  As  the  evidence  Is  convincing  that  the 
property  was  originally  purchased  with  the 
firm  money,  and  the  legal  title  taken  in  the 
name  of  the  older  brother  for  the  firm,  BldA 
that  there  has  at  no  time  been  any  daim 
upon  the  part  of  the  older  brother  to  the 
contrary  or  any  adverse  holding  on  his  part, 
and  that  both  brothers  have  at  all  times 
during  the  life  of  the  partnership  treated  the 
property  as  firm  property,  I  am  convinced 
that  a  decree  to  that  effect  cannot  be  proper- 
ly denied  by  reason  of  the  long  period  of  time 
during  which  the  legal  title  has  been  allowed 
to  stand  in  the  name  of  the  older  brother. 
I  will  accordingly  advise  a  decree  to  the  ef- 
fect stated. 

(87  N.  J.  Eq.  364) 

BBNSEL  y.  ANDERSON  et  aL    (No.  122.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

March  5,  1917.) 

Contracts  ®=»265— Rescission— Restoratiow 

OF  Status. 
One  who  repudiates  an  a^eement  ought  not 
to  profit  thereby,  and   equity  requires  that  the 
situation  existing  when  the  agreement  was  made 
should,  as  far  as  possible,  be  restored. 

[Ed.  Note. — ^For  other  cases,  see  Contract*, 
Cent  Dig.  {  1187.] 

Appeal  from  Court  of  Chancery. 

Suit  by  William  Bensel  against  William  O. 
Anderson  and  others.  Decree  for  plaintiff 
(85  N.  J.  Bq.  391,  96  Atl.  910),  and  defend- 
ants appeal.     Remanded,  with  directions. 

Frank  S.  Eatzenbacb,  Jr.,  and  Frederic  R. 
Brace,  both  of  Trenton,  for  appellants. 
Aaron  V.  Dawes,  of  Hightstown,  and  Jamea 
J.  McGoogan,  of  Trenton,  for  appellee. 

PER  CURIAM.  We  agree  with  the  rea- 
soning of  the  learned  vice  chancellor  and  in 
the  main  with  his  result  The  decree  re- 
lieves Bensel  of  his  liability  on  the  note  of 
$4,650  which  existed  prior  to  the  arrange- 
ment now  declared  void.  He  ought  not  to 
profit  by  an  agreement  he  repudiates,  and 
equity  requires  that  the  situation  existing 
when  that  agreement  was  made  should,  as 
far  as  possible,  be  restored.  This  can  be 
done  by  so  modifying  the  decree  that  tbe 
bank  may  proceed  on  its  Judgment  for  $5,413.- 
79  primarily  against  Bensel  to  the  extent  of 


es>For  other  case*  aee  same  topic  and  KBY-NUMBSR  in  all  Ker-Numbered  Digests  and  Indszaa 


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UMPERT  BROS.  r.  R.  M.  PRENCH  A  SON 


263 


$4,680,  with  Interest  from  the  date  from 
which  Interest  was  calculated  In  entering 
the  Judgment,  and  the  costs  of  suit  and  re- 
quiring It  to  proceed  primarily  against  An- 
derson for  the  bfllanee,  and  by  requiring  An- 
derson to  satisfy  that  balance  and  cancel  the 
Judgment  upon  the  payment  by  Bensel,  or 
out  of  his  property  of  the  $4,650,  interest 
ther«on  and  costs  included  in  the  bank's 
Judgment 

liet  the  record  be  remitted  to  the  Court  of 
Chajicery,  In  oi'der  that  the  decree  may  be 
thus  modified. 


(9»  N.  J.  Utw,  t44) 

GROMER  T.  GEJDRGB  et  al.    (No.  96.) 

(Gonrt  (rf  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

1.  Appeai.  and  EaaoB  €='1052(6)— Habmless 
Erbor— Evidence. 

In  an  action  to  recover  damages  for  negli- 
gently causing  the  death  of  plaintiFs  intestate, 
against  the  father  as  the  owner  and  the  son  as 
the  driver  of  the  automobile  which  ran  into  him 
while  the  son  was  on  his  father's  business,  where 
the  jury  found  the  son  not  guilty  of  negligence, 
error  in  the  admission  of  evidence  as  to  the  own- 
ership of  the  automobile  in  the  sou  was  harm- 
less. 

[Bd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  ^  4176.] 

2.  Appeai,  and  Ebrob  i&=>1068(1)— Habuless 

BREOB— INSTBDCTIONB. 

In  an  action  to  recover  damages  for  negli- 
gently causing  the  death  of  plaintiff's  intestate, 
against  the  father  as  the  owner  and  the  son  as 
the  driver  of  the  automobile  which  negligently 
ran  into  him  while  the  son  was  an  his  father's 
bonness,  where  the  jury  found  the  son  not  guilty 
of  negligence,  error  in  the  instructions  as  to 
what  must  be  proved  to  malce  father  answer^ 
able  for  negligence  of  son  is  harmless. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4225.] 

Appeal  from  Supreme  Court 

Action  by  Julius  Gromer,  administrator, 
against  Joseph  George  and  Antonio  George. 
Judgment  for  defendants,  and  plaintiff  ap- 
peals.   Affirmed. 

William  Greenfield,  of  Newark,  for  appel- 
lant 3cbn  A.  Matthews  and  William  J. 
Dowd,  both  of  Newark,  for  appelleea 

EIALISCH,  J.  The  appellant,  who  was 
tbe  plaintiff  below,  appeals  from  a  Judgment 
altered  on  a  verdict  rendered  by  a  Jury  In 
favor  of  the  respondents,  defendants  below. 

The  appellant  brought  his  action,  as  admin- 
istrator of  the  estate  of  his  son,  a  lad  14  years 
of  age,  in  the  court  below,  against  tbe  re- 
spondents, father  and  son,  to  recover  dam- 
ages for  negligently  causing  the  death  of  ap- 
pellant's son.  The  complaint  charged  the 
respondents  with  being  "the  owners,  proprle- 
toTS,  or  lessees  of  a  certain  automobile," 
etc.,  and  that  on  tbe  80th  day  of  May,  the 
respondents,  their  agents,  servants,  etc.,  did 
operate  and  run  the  automobile  along  the 
pabllc  highway,  at  a  high  rate  of  speed  and 


in  a  careless,  re<^Iess,  and  negligent  manner, 
run  Into  and  against  the  appellant's  decedent, 
who  was  then  and  there  lawfully  on  tbe 
public  highway,  etc. 

It  Is  to  be  observed  that  the  gravamen  of 
the  charge  is  negligence.  This  charge  was 
negatived  by  the  Jury  finding  a  verdict  in  fa- 
vor of  both  respondents.  On  the  trial  the 
appellant  sought  a  recovery  against  both  re- 
spondents upon  the  theory  that  the  father 
was  the  owner  of  tbe  antomobile  and  that  tbe 
son  while  on  the  business  of  Iiis  father  negli- 
gently operated  the  car,  with  the  result  as 
above  stated. 

[1]  The  principal  ground  relied  on  by  the 
appellant  for  a  reversal  of  tbe  judgment  is 
that  the  trial  Judge  UlegaUy  admitted  hearsay 
testimony  concerning  the  ownership  of  the 
antomobile,  in  Antonio  George,  the  son. 

Even  upon  the  assumption  that  such  testl- 
mohy  was  improperly  admitted,  it  is  obvious 
from  the  verdict  of  the  Jury,  finding  the  son 
not  guilty  of  negligence,  that  the  admission 
of  such  testimony  was  harmless.  For  it  is 
plain  that  if  the  father  was  the  owner  of  the 
car  and  the  son  was  on  his  father's  business, 
as  bis  agent  or  Mrrant,  at  the  time  of  the 
infliction  of  the  injury  upon  appellant's  de- 
cedent, the  father  would  not  have  Incurred 
any  legal  liability  therefor,  unless  it  also  ap- 
peared that  the  Injury  to  the  appellant's  de- 
cedent was  due  to  the  son's  negligence  and 
to  which  the  decedent  did  not  In  any  wise 
proximately  contribute. 

[2]  The  remaining  exceptions  discussed  in 
the  brief  of  counsel  for  appellant  relate  to 
what  the  trial  Judge  said  In  his  charge  to 
the  Jury  was  necessaiy  to  be  established  by 
the  evidence  in  order  to  make  the  father  an- 
swerable in  law  for  the  negligent  acts  of  his 
son  in  operating  the  machine.  But,  in  view  of 
the  fact  that  the  Jury,  by  their  verdict,  ex- 
onerated the  son  from  the  charge  of  negli- 
gence, and  without  which  negligence  no  legal 
liability  could  have  been  incurred  by  tbe 
father,  it  is  manifest  that  if  any  error  in 
stating  the  legal  rule  governing  the  father's 
liability  was  committed,  it  was  harmless. 

The  Judgment  will  be  afflrmed. 

(90  N.  J.  L*«,  eoo) 
LlMPiaiT  BEOS.,  Inc.,  t.  R.  M.  FRENCH 

&  SON  et  aL    (No.  84.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(Byllahut  by  the  Court.) 
1.  Justices  or  the  Peace  4s»86(8)— Rioht  of 
Attaohino  Cbkditob— Motion  to  Quash. 
The  respondents  caused  an  attachment  to  be 
issued  out  of  a  court  for  the  trial  of  small  caus- 
es, and  under  it  the  debtor's  goods  were  seized, 
subsequently  but  before  judgment  in  the  proceed- 
ings, the  prosecutors,  as  they  daim.  Issued  an 
attachment  out  of  the  circuit  court  against  the 
same  debtor  and  under  it  the  same  goods  were 
seized.  Held  that,  if  it  appeared  that  prosecutor 
bad  in  fact  issued  the  attachment  and  seized  the 
goods,  it  had  the  same  right  that  the  debtor 


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101  ATLANTIC  BEPORTBR 


(N.J. 


wonid  have  to  move  the  justice  court  to  quash 
the  writ  iBBued  by  that  court,  and  to  rescue 
the  goods  on  which  It  had  a  lien  from  the  prior 
seizure. 

[Bd.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  (  290.] 

2.  Justices  of  the  Pkacb  9=>se(8)— Motion 
TO  Quash— Afpidavitb. 

In  support  of  such  motion  ex  parte  afiBdavits 
are  not  sufficient;  the  material  facta  must  be 
proved  before  the  justice  by  Uie  production  of 
competent  proof. 

[Ed.  Note. — ^ot  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  {  290.] 

3.  JxrariCES  OF  THB  Peace  ^»164(6)— Rzmw 
— Rkcobd — Stipulations. 

A  stipulation  of  facts  not  submitted  to  the 
justice  of  the  peace  cannot  be  used  on  review  by 
an  appellate  court 

[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  §{  633-636.] 

Appeal  from  Supreme  Court. 

Certiorari  by  Llmpert  Bros.,  Incoiporated, 
to  review  an  order  of  the  court  for  the  trial 
of  small  causes  refusing  to  quash  a  writ  of 
attachment  issued  In  favor  of  R.  M.  French 
&  Son  and  others.  Writ  dismissed,  and  pros- 
ecutor appeals.    Affirmed. 

James  O.  Clark,  of  Westfield,  for  aiH)eUant. 
Augustus  O,  Nash,  of  Westfield,  and  W.  S. 
Angleman,  of  Plalnfleld,  for  appellees. 

BERGEN,  J.  R.  M.  French  &  Son  procur- 
ed a  writ  of  attachment  to  be  issued  out  of 
a  court  for  a  trial  of  small  causes,  and  the 
officer  seized  the  property  of  Clay  &  Tokis, 
trading  as  "Diana,"  the  defendants  In  that 
proceeding.  Subsequently,  and  before  Judg- 
ment therein,  it  is  claimed  by  the  present 
prosecutor  that  It  caused  to  issue  a  writ 
of  attachment  out  of  the  Union  county  dr- 
cait  court,  under  which  the  same  property 
was  attached  by  the  sheriff.  Thereafter  the 
prosecutor  filed  an  affidavit  with  the  Justice 
of  the  peace  and  moved  to  quash  the  writ 
Issued  by  him  because  the  Christian  names 
of  the  defendants  are  not  set  forth  in  the 
affidavit  or  the  attachment. 

The  affidavit  and  the  writ  described  the 
defendants  as  "Clay  &  Tokis,  partners  trad- 
ing and  doing  business  as  Diana,"  and  the 
motion  to  quash  was  made  In  pursuance  of 
a  stipulation  that  it  should  be  made  in  one 
case;  there  being  other  attachments  of  like 
nature  "For  the  purpose  of  establishing  the 
validity  of  said  attachment"  The  court, 
after  argument,  refused  to  quash  the  attach- 
ment and  proceeded  to  hear  the  merits,  ren- 
derlng  Judgment  for  R.  M.  French  &  Son. 
The  prosecutor  then  obtained  a  writ  of  cer> 
tlorarl  to  review  the  order  of  the  court  for 
the  trial  of  small  causes  In  refusing  to  quash, 
and  the  Supreme  Court  dismissed  the  writ 
upon  the  ground  that  the  statute  does  not 
authorize  a  stranger  to  the  record  In  that 
court  to  intervene  by  filing  an  affidavit  of 
interest  In  the  subject-matter  of  the  litiga- 
tion, and  therefore  the  prosecutor  had  no 
legal  status  in  the  proceeding. 


[1]  Assuming  that  it  was  properly  proven 
before  the  JusUce  that  a  writ  of  attachment 
bad  been  issued  out  of  the  circuit  court  and 
the  same  goods  seized  under  it,  we  are  of 
the  opinion  that  the  conclusion  of  the  Su- 
preme Court  was  not  sound  In  law,  for  it 
was  held  in  National  Papeterie  Co.  v.  Kin- 
sey,  54  N.  J.  Law,  20,  23  Atl.  275,  where  a 
subsequent  Judgment  creditor  moved  to  quash 
a  prior  attachment,  that: 

"The  judgment  creditors  acquired  the  right  of 
the  judgment  debtor  in  the  property  levied  on, 
and  had  a  right  to  rescue  it  for  the  satisfaction 
of  their  claims  from  any  one  who  could  not  as- 
sert a  superior  title  in  the  law  to  it  It  is  not 
perceived  how  the  efficacy  of  the  proceedings 
under  the  judgments  can  be  impaired,  or  how 
validity  can  be  imparted  to  attachment  proceed- 
ings unauthorized  by  law,  by  the  mere  volition 
of  the  debtor  as  against  the  judgment  creditors. 
The  debtor  may  waive  his  own  rights,  but  he 
cannot  surender  the  rights  of  his  Judgment  cred- 
itor." 

We  are  of  opinion  that  an  attachment  vests 
in  the  attaching  creditor  the  same  right  of 
rescue  as  if  he  were  a  Judgment  creditor, 
and  that  tf  the  debtor  has  a  right  to  move 
to  quash  an  attachment  in  any  court,  his 
attaching  creditor  has  the  same  rl^t  He 
has  a  lien  upon  the  property  and  stands  in 
the  place  of  the  debtor,  and  if  the  debtor  Is 
entitled  to  have  the  writ  quashed  he  cannot 
defeat  the  rights  of  his  other  creditors  hav- 
ing a  Hen  by  consenting  to  the  execution  of  a 
void  attachment 

[2]  The  prosecutor's  difficulty  in  this  case 
arises  over  the  method  which  It  adopted  in 
proceeding  to  quash  the  attachment,  for 
while,  as  was  said  in  McLaughlin  v.  Cross, 
68  N.  J.  Law,  509,  53  Atl.  703,  "The  practice 
Is  quite  general  to  afford  relief  against  void 
Judgments  to  any  i>er8on  Interested,"  the 
method  of  relief  in  a  case  of  this  character 
seems  to  be  prescribed  by  statute.  Section  43 
of  the  Attachment  Act  (1  Comp.  St  1010,  p. 
150)  provides  that  In  all  cases  of  an  attach- 
ment Issued  by  a  Justice  of  the  peace,  whoi 
an  affidavit  shall  be  filed  by  or  on  behalf  of 
the  defendant  setting  forth  facts  which  would 
render  said  attachment  Illegal  or  void,  it  shall 
be  the  duty  of  the  Justice  upon  a  motion  to 
quash  to  try  the  facts.  In  this  case  the 
prosecutor  produced  no  witnesses,  but  seems 
to  have  relied  on  the  affidavit  filed  by  him, 
and  also  the  affidavit  upon  which  the  Jus- 
tice Issued  the  writ,  but  It  was  held  In  Mor- 
rU  T.  Quick,  45  N.  J.  Law,  308,  that  the 
ex  parte  affidavits  of  the  moving  party  can- 
not be  used  on  the  motion,  but  that  he  must 
sustain  the  burden,  by  legal  evidence,  that 
the  writ  was  Illegally  Issued. 

The  original  affidavit  described  the  debtor 
as  "Clay  &  Tokis,  partners  trading  and  do- 
ing business  as  Diana,"  and  section  3  of  the 
Attachment  Act  provides  that  the  writ  may 
Issue  against  the  separate  and  Joint  estate 
of  Joint  debtors  "either  by  their  names  or  the 
names  of  the  partnership  or  by  whatsoever 
name  they  may  be  generally  distinguished." 


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STUART  ▼.  BUBIilNOTON  COUNTY  FAKMEKS'  EXCHANGB 


265 


In  the  original  affidavit  tbe  defendant  is  de- 
scribed as  doing  business  under  tbe  name 
of  Diana,  and  tbe  prosecutor  offered  no  proof 
that  this  was  not  correct. 

Nor  did  tbe  prosecutor  make  any  legal 
proof  l>efore  the  Justice  of  tbe  peace  that 
any  attachment  bad  been  Issued  out  of  the 
circuit  court  and  the  dd>tor's  goods  attached 
under  It 

[3]  Without  this  there  was  nothing  before 
tbe  Justice  to  show  that  the  prosecutor  had 
any  Interest  In  tbe  goods  to  be  rescued  for 
its  benefit.  The  stipulation  between  tbe  par- 
ties, from  which  an  Inference,  It  is  claimed, 
may  be  drawn  that  there  was  such  a  writ  of 
attachment  was  not  submitted  to  the  Justice 
and  bis  record  as  returned,  to  correct  whidi 
no  attempt  has  been  made,  certifies  that: 

"This  court  has  no  knowledge  except  the  state- 
ments of  the  attorney  that  a  writ  of  attachment 
has  been  issued  out  of  the  Union  county  circuit 
court.  If  a  writ  affecting  these  proceedings  baa 
been  issued,  superseding  or  affecting  this  juris- 
diction, this  court  has  not  been  officially  so  in- 
formed." 

Under  tbe  facts  before  tbe  justice  be  cor- 
rectly disposed  of  the  motion. 

For  tbe  reasons  given,  the  Judgment  will 
be  affirmed,  with  costs. 


(90  N.  J.  Law,  E84) 

KTUAKT  v.  BUEUNGTON  COUNTT 
FARMEKS*  EXCHANGE.    (No.  125.) 

ICoort  of  Errors  and  Appeals  of  New  Jersey. 
Jmie  18,  1917.) 

(Syllabu)  by  the  Court.) 
BviDSNCE  «=»158(28),  243(2)— Sales  «=>441(2) 
— ^Implied  Waksantt— Expenses  of  Gbow- 
IHQ  Cbop — Declarations  op  Agknt. 

Plaintiff,  relying  on  representations  of  de- 
fendant's agent  that  its  product,  called  "crude 
fiah,"  was  a  good  fertilizer  for  liis  intended 
crops  rff  sweet  corn,  gave  an  order  for  "crude 
fish,"  and  used  wliat  he  received  in  response 
to  such  order  in  the  belief  that  it  was  "crude 
fish."  Tbe  crop  failed,  and  he  sued  for  dam- 
ages. Held:  (o)  That  there  was  evidence  of 
implied  wacrantv  that  the  fertilizer  supplied 
was  "crude  fish'';  (b)  that  on.  tbis  point  evi- 
dence of  the  statements  to  plaintiff  by  the  gen- 
eral manager  of  defendant  was  competent;  (c) 
that  plaintiff's  oral  testimony  as  to  the  receipts 
and  expenses  of  growing,  reaping,  and  market- 
ing his  crop  was  competent,  whether  or  not  he 
kept  I>ooks  of  account,  and  without  their  pro- 
duction on  his  own  case.  See  89  N.  J.  Law.  12. 
97  AtL  775. 

[E5d.  ..Note. — For  other  cases,  see  Evidence. 
Cent.  IMg.  H  62a-625,  910;  Sales,  Cent  Dig.'  { 
127&J 

BUtck  and  Heppenhelmer,  JJ.,  dissenting. 

Appeal  from  Glrcait  Court,  Burlington 
Connty. 

Action  by  John  C.  Stuart  against  the  Bur- 
lington County  Farmers'  Ezctiange.  From  a 
Jndgment  at  tlie  Supreme  Court  (89  N.  J. 
r<aw,  12,  97  All.  775)  reversing  a  Judgment 
for  plaintiff,  defendant  appeals.    Affirmed. 


Gasklll  &  GasklU,  of  Camden,  and  George  M. 
Hlllman,  of  Mt.  Holly,  for  appellant.  John 
G.  Homer,  of  Camden,  for  appellee. 

PABKIDR,  J.  Plaintiff,  a  farmer,  contract- 
ed to  purchase  a  fertilizer  called  "crude  fish" 
from  defendant,  upon  the  representation  of 
defendant's  sales  agent  that  it  was  a  special- 
ly good  fertilizer  for  raising  sweet  com.  He 
received  and  used  the  contents  of  a  number 
of  bags  shipped  by  defendant  and  labeled 
"crude  fish,"  but  his  crop  failed,  and  he  then 
discovered,  as  claimed,  that  the  contents  of 
the  bags  were  not  "crude  fish,"  but  something 
else.  He  brought  suit  for  damages  on  the 
theory  of  Wolcott  v.  Mount,  86  N.  J.  Law, 
262,  13  Am.  Bep.  438,  for  tbe  loss  of  the 
crops  which  he  claimed  would  have  resulted, 
had  the  fertilizer  been  as  represented,  and  at 
the  trial  bad  a  verdict  of  $1,000. 

The  ret>resentatlons  regarding  the  fertili- 
zer were  made  by  one  Page,  a  sales  agent  of 
defendant;  and  tbe  first  point  made  on  this 
appeal  Is  that  It  was  error  to  admit  testimo- 
ny of  oral  statements  by  Page  at  the  time 
when  tbe  purchase  was  agreed  om,  because 
the  contract  of  sale  was  In  writing.  An  ex- 
amination of  the  paper  referred  to,  however, 
shows  that  plaintiff  was  not  a  party  to  it, 
but  that  it  was  a  mere  order  for  shipment  to 
plaintiff's  addressr  sent  by  tbe  salesman  to 
the  factory  or  office  of  bis  principal,  signed 
by  the  salesman,  but  not  by  the  plaintiff. 

This  also  disposes  for  tbe  most  part  of  the 
fourth  point  resting  to  the  same  conversa- 
tion on  the  redirect  examination  of  the  plain- 
tiff. It  is  also  objected  that  he  had  already 
been  fully  examined  on  this  head ;  but  a  rep- 
etition of  his  testimony  was  within  the  Judi- 
cial discretion. 

Under  the  second,  third,  and  sixth  points 
tbe  argument  Is  made  that  It  was  error  to 
permit  plaintiff  to  testify  to  a  conversation, 
after  his  crop  failed,  with  Mr.  Embree,  ad- 
mitted by  defendant  to  be  the  manager  of  the 
defendant,  wherein  plaintiff  complained  that 
the  fertilizer  was  not  as  represented,  and  per- 
haps be  should  have  tried  It  out  In  a  small 
way  first,  and  Embree  said,  "We  stand  bdilnd 
what  we  sell,"  etc.  There  is  no  doubt  of  the 
competency  of  statements  by  Embree  as  man- 
ager that  were  relevant  to  the  Issue.  Agri- 
cultural Ins.  Co.  V.  Potts,  55  N.  J.  Law,  168, 
28  Atl.  27.  537,  39  Am.  St  Rep.  637 ;  Smith 
V.  Telephone  Co.,  64  N.  J.  Eq.  770,  53  AtL  818 ; 
Carey  v.  Wolff,  72  N.  J.  Law,  610,  63  AO.  270; 
Bridgeton  v.  Fidelity  Co.,  88  N.  J.  l«w,  645, 
96  Atl.  918.  If  the  defendant  had  been  an 
Individual,  his  statement  that  he  held  him- 
self responsible  for  tbe  quality  and  fituess  of 
what  he  sold  through  bis  agent  would  be 
Clearly  relevant  as  an  admission  that  be  was 
liable  for  defects  therein ;  and  the  fact  that 
this  statement  Is  made  by  a  general  agent  of 
a  corporation  does  not  deprive  Iti  of  rele- 
vancy. 

The   seventh   point  alleges  error  In   ttie 


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266 


101  ATLAMTIO  RBPORTISB 


(K.X 


court's  refusal  to  strike  oat  the  testimony  of 
plalntifF  refq;)ectlng  the  amount  of  his  sales 
and  losses  on  the  crop.  This  was  asked  on 
itae  ground  that  plaintiff  admitted  he  kept 
books  showing  the  amount  of  his  sales  and 
expenses,  etc,  and  bad  not  produced  them. 
We  think  there  is  do  merit  in  this  point  The 
iMwks,  If  they  existed,  and  if  they  were  legal 
evidence  at  all  for  plaintiff,  against  the  de- 
fendant, were  not  the  l)est  evidence  so  as  to 
exclude  his  parol  proof.  The  whole  line  of 
"shop  book"  cases  in  this  state  bears,  not  up- 
on the  exclusiveness,  but  upon  the  admissibil- 
ity, of  such  books,  as  unsworn  day-to-day 
records  of  the  business  of  the  party  producing 
them,  to  show  facts  in  his  own  favor.  De- 
fendant could  have  obtained  these  books  un- 
der subpoena,  but  was  not  entitled  to  shut 
out  plaintiff's  testimony  as  to  the  receipts 
from  his  business  because  of  their  nonproduc- 
tlon.  The  case  of  E:ast  Jersey  Water  Ool  v. 
Bigelow,  60  N.  J.  Lew,  201,  38  AtL  631,  is  in 
no  wise  to  the  contrary ;  nor  Is  that  of  Bar- 
tow V.  Erie  Railroad  Co.,  73  N.  J.  Law,  12, 
62  AtL  489,  where  the  absence  of  plaintiff's 
books  was  commented  on  in  connection  with 
tlie  total  abs^ice  of  evidence  of  the  cost  of 
ccmductlng  his  business.  In  Standard  Amuse- 
ment Co.  v.  Champion,  76  N.  J.  Law,  771,  774, 
72  Atl.  02,  the  books  were  held  admissible 
because  as  between  the  parties  they  partook 
of  the  nature  of  partnership  accounts.  In 
the  very  recent  case  of  Rabinowits  v.  Haw- 
thorne, 88  N.  3.  Law,  308,  96  AU.  81S,  the 
discussion  was  not  as  to  the  exclusiveness  or 
admissibility  ot  the  books,  tor  there  were 
none,  but  as  to  the  general  competency  of 
evidence  to  show  the  average  profits  of  plain- 
tiff In  his  business.  We  may  add  that  plain- 
tiff was  again  put  on  the  stand  and  then  tes- 
tified tbat  the  "books"  were  only  the  collect- 
ed sales  slips  that  had  been  sent  lilm  from 
time  to  time  by  the  commission  merchants, 
and  that  these  were  the  only  record  he  had. 

Lastly,  It  is  urged  that  the  court  should 
have  granted  the  motion  to  nonsuit,  on  the 
double  ground  (a)  that  plaintiff  had  failed  to 
show  any  warranty  or  (b)  any  breach  thereof. 
There  was  evidence  of  a  sale  by  description, 
which  raised  an  implied  warranty  that  the 
goods  were  "crude  fish"  (Q.  S.  4650,  |  15), 
and  evidence  that  In  fact  they  were  not  The 
nonsuit  was  properly  denied.  If  it  be  con- 
ceded tbat  the  evidence  for  plaintiff  failed  to 
indicate  tliat  what  he  received  was  not  in 
fact  "crude  fish,"  this  was  supplied  by  tbe 
testimony  offered  for  defendant,  and  the  er- 
ror, if  any,  cured.  Bostwick  v.  Wlllett,  72  N. 
J.  Law,  21,  60  Atl.  398;  Van  Ness  v.  North 
Jersey  Street  Railway  Co.,  77  N.  J.  Law, 
551.  73  Atl.  509 ;  Dennery  v.  Great  AUantic 
&  Pacific  Tea  Co.,  82  N.  J.  Law,  517,  81  Atl. 
861,  30  L.  R.  A.  (N.  S.)  574. 

The  Judgment  will  be  affirmed. 

BLACK  and  HEPPENHEIMEB,  JJ.,  di* 
sent 


(W  N.  J.  Law,  6tf) 
HATOB  AND  ALDERMEN  OF  JERSEY 
CITZ  T.  HUDSON  &  M.  B.  CO. 

(No.  128.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

iBullahut  by  the  Court.) 

1.  Rahaoads  €=>75(6)— Usk  or  Stehbt— Com- 
pensation—Ordinance— "Each.  " 

Tbe  word  "each"  in  an  ordinance  of  Jersey 
City  providing  for  compensation  to  be  paid  the 
city  for  tbe  use  of  land  privileges  by  a  railroad 
company,  in  connection  with  its  three  routes, 
depending  upon  the  amount  of  fare  for  each 
single  passenger  service,  means  any  route,  and 
not  all  three  routes. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  (  188. 

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

2.  Railboads    ®=»75(6)— Land    Pbivu^ois— 
Use— Paymbnt. 

Where  on  ordinance  by  its  terms  does  not 
constitute  a  contract  with  a  railroad  compony 
for  the  use  of  land  privileges,  but  does  provide 
an  option,  the  railroad  company  cannot  retain 
the  use  of  the  privileges  and  refuse  to  pay  tbe 
stipulated  compensation. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  f  188.] 

8.  Railboads   «=975(6)  —  Pbiviixoes  tjndbb 
MuNiciPAi,  Obdinance— Eixction  to  Pat 

COMPEINSATION. 

A  continued  exercise  of  the  privileges  by  a 
railroad  company,  under  an  ordinance  accepted 
by  it  evinces  an  election  to  pay  the  stipulated 
compensation,  and  thereby  creates  a  legal  obli- 
gation to  pay.  The  language  of  the  ordinance 
construed  will  be  found  in  the  opinion. 

[Ed.  Note.— For  other  caae^  see  Railroads, 
Cent  Dig.  f  188.] 

Appeal  from  Circuit  Court,  Hudson  County. 

Suit  by  the  Mayor  and  Aldermen  of  Jersey 
City  against  the  Hudson  &  Manhattan  Rail- 
road Company.  Judgment  for  plaintiff,  and 
defendant  appeals.    Affirmed. 

Ck>Uins  &  C^rbin,  of  Jersey  City,  for  appel- 
lant James  J.  Muiphy  and  John  Bentley, 
both  of  Jersey  Oty,  for  appellee. 

BLACK,  J.  Tbe  suit  in  this  case  was 
brought  by  the  mayor  and  aldermen  ot  Jer- 
sey City  against  the  Hudson  &  Manhattan 
Railroad  (Company  to  recover  compensation 
for  the  conditional  rights  or  occupancy  by 
the  defendant  company  of  certain  land  and 
privileges  in  the  public  street,  at  Henderson 
and  Grove  streets,  Jersey  City,  used  by  the 
defendant  company  for  station  purposes.  The 
case  was  tried  under  a  stipulated  state  of 
facts,  on  tbe  second  count  of  the  complaint 
only,  before  Judge  Speer  at  the  Hudson  cir- 
cuit, without  a  Jury,  resulting  in  a  Judgment 
in  favor  of  the  plaintiff  for  the  sum  of  ^- 
525. 

The  suit  grows  out  of  the  coostmetlon  of 
sections  3,  4,  and  0  of  an  ordinance  of  Jersey 
City  which  was  accepted  by  the  def«idant 
company  on  September  29,  1910.  Those  sec- 
tions read  thus: 


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N.  J.)      MAYOR  AND  ALDKRMEN  OF  JERSEY  CITY  v.  HUDSON  <fc  M.  B.  00.       267 


"See.  3.  Said  railroad  company,  its  successors 
or  assigns,  shall  pay  to  the  city,  annually,  ex- 
cept in  the  contingency  hereinafter  noted  in  sec- 
tion 4  hereof,  for  the  right  to  use  and  occupy 
said  tract  of  land  aforedescribed  in  section  1 
hereof,  and  so  long  as  it  shall  so  use  and  occupy 
the  same,  in  addition  to  snch  taxes  or  assess- 
ments which  may  be  legally  levied  upon  its  per- 
sonal and  real  estate  by  the  city  of  Jersey  City 
or  by  any  other  authority,  the  sum  of  one  hun- 
dred ($100)  dollars  for  the  first  year  of  occu- 
pancy dating  from  the  acceptance  of  this  ordi- 
nance and  thereafter  like  payments  for  the  en- 
tire period  of  the  life  of  this  ordinance.  The 
Iiermission  to  use  and  occupy  said  tract  of  land 
aforedescribed  to  continue  and  remain  in  force 
so  long  as  the  rate  of  fare  charged  by  said  Hud- 
son &  Manhattan  Railroad  Company,  its  succea- 
aors  or  assigns,  between  the  Grove  and  Hender- 
son street  stations  and  Thirty-Third  street 
and  Broadway,  New  York,  and  intermediate  sta- 
tions, and  between  the  said  Grove  and  Hender- 
son street  stations  and  the  Hudson  terminal  in 
New  York  and  intermediate  stations,  and  be- 
tween said  Henderson  and  Grove  street  stations 
and  Hoboken,  New  Jersey,  and  intermediate  sta- 
tions, shall  not  exceed  for  each  single  passenger 
service,  one  way,  and  in  either  direction,  the 
sum  of  five  cents. 

"Sec.  4.  If  at  any  time  after  the  passage  and 
acceptance  of  this  ordinance  the  said  Hudson 
&  Manhattan  Railroad  Company,  its  successors 
or  assigns,  shall  proceed  to  charge  and  exact  a 
fare  exceeding  five  cents  fon  each  single  pas- 
senger service  as  described  in  section  3  hereof, 
then  and  thereupon  said  railroad  company  shall 
immediately  surrender  to  the  city  all  privileges 
herein  and  hereby  granted,  or  then  the  annual 
payment  to  be  made  by  snid  railroad  company, 
its  successors  or  assigns,  for  the  use  and  occu- 
pa<^  of  the  tract  of  land  afor^escribed,  shall 
in  lieu  of  the  amount  of  annual  payment  indi- 
cated in  section  3  of  this  ordinance  and  in  sub- 
stitution therefor  be  five  thousand  ($5,000)  dol- 
lars, to  be  computed  from  the  date  of  exaction 
by  said  company  of  such  excess  fare — such  pay- 
mentof  five  thousand  ($5,000)  dollars  to  be  in 
addition  to  such  taxes  or  assessments  which  may 
be  legally  levied  upon  its  personal  and  real  es- 
tate by  the  city  of  Jersey  City  or  by  any  other 
authority  and  to  so  continue  for  each  and  every 
year  during  the  continuance  of  such  increased 
rate.  The  said  railroad  company  shall  have  the 
right  of  election  hereunder.  If  by  reason  of 
the  enforcement  of  the  provisions  of  this  section 
there  shall  have  accumulated  a  deficiency  in 
the  annual  payment  herein  in  this  section  con- 
tingently required  to  be  made,  such  accumula- 
tion shall  in  its  entirety  be  paid  by  said  com- 
pany on  the  first  payment  day  thereafter  ensu- 
ing and  as  hereinafter  provided." 

"Sec.  6.  Proper  proportions  of  the  payments 
of  the  city  herein  provided  for  shall  be  made  in 
advance  to  the  city  comptroller  at  his  office  in 
the  dty  hall,  on  the  first  days  of  October  and 
.April  next  succeeding  the  acceptance  of  this 
ordinance,  falling  which  payment  for  thirty  days 
or  a  failure  by  said  company  to  comply  with  all 
or  any  of  the  terms,  requirements  or  obligations 
of  this  ordinance  as  heretofore  expressed  shall 
constitute  an  annulment  of  any  and  all  permis- 
sion herein  or  hereby  accorded,  and  the  city  may 
tliereupon  remove  any  and  all  obstructions  here- 
in authorized  and  restore  any  affected  street  or 
portion  thereof  at  the  entire  cost  and  expense 
of  said  company  without  prior  notice  and  with- 
out recourse  to  it" 

Some  of  the  additional  facts  pertinent  to 
this  discussion  are:  The  defendant  railroad 
company  from  the  time  It  began  operations 
ctiarged  only  five  cents  for  each  passenger 
service  from  the  Grove  and  Henderson  street 
station  eastward  thereof,  on  any  of  its  lines, 


until  December  24,  1911,  when  it  raised  Its 
rate  of  fare  to  seven  cents,  between  the  Grove 
and  Henderson  street  station  and  the  stations 
in  New  York  City  on  the  Thirty-Third  Street 
line.  It  did  not  Increase  the  rate  to  the  Erie 
station,  to  Hoboken,  to  Exchange  Place  In 
Jersey  CSty,  or  to  the  Hudson  Terminal  in 
New  York,  the  rate  to  those  stations  from 
Grove  and  Henderson  street  station  and  from 
Summit  avenue  station,  remaining  five  cents, 
that  Is,  passengers  who  go  to  New  York  from 
the  Grove  and  Henderson  street  station  by 
way  of  the  uptown  line  are  charged  two 
cents  extra  fare  to  New  York  stations  and  to 
those  only. 

There  are  five  grounds  of  appeal:  First,  no 
breach  of  the  alleged  contract;  second,  no 
election  under  the  fourth  section  of  the  or- 
dinance; third,  acceptance  of  $100  per  year 
by  Jersey  City  after  the  Increase  of  fare  was 
a  construction  by  the  parties  to  the  contract 
that  it  had  not  been  broken  by  such  Increase. 
The  other  two  grounds  of  appeal,  the  fourth 
and  fifth,  are  purely  formal. 

[1]  The  argiiinent  Is  the  use  of  the  con- 
jtmctlon  "and"  in  section  3  of  the  ordinance, 
where  reference  is  made  to  the  three  lines  of 
the  railroad  and  Intermediate  stations,  in 
connection  with  section  4,  makes  section  3 
mean  that  the  permission  stands  until  the 
rate  of  fare  Is  Increased  above  five  cents  on 
all  three  lines,  and  that  for  each  single  pas- 
senger service  one  way  or  In  either  direction 
means  for  all  the  lines,  but  we  think  the 
natural  and  Intended  meaning  of  the  word 
"each"  in  this  connection  means  "any,"  L  e., 
any  one  of  the  three  lines. 

[2]  It  is  next  argued  the  ordinance  does  not 
constitute  a  contract  to  pay;  at  best,  It'pro- 
vldes  merely  for  an  annulment  It  may  be 
conceded  that  section  4,  in  itself,  does  not 
constitute  a  conti'act  to  pay,  but  it  gives  the 
railroad  company  the  option  either  to  surren- 
der Its  privileges  to  the  city,  or  to  pay  the 
$5,000.  When  the  railroad  company  contin- 
ues exercising  the  privileges.  It  evinces  an 
election  to  pay  the  Increased  amount,  and  it 
thereby  becomes  in  law  liable  to  pay.  Sec- 
tion 6  does  not  militate  against  this  conclu- 
sion. That  section  provides  simply  that  the 
failure  to  make  the  payment  of  $5,000  shall 
constitute  an  annulment  of  the  permission 
granted.  The  dty  may  thereupcm  enter  and 
remove  obstructions. 

[3]  Tills  is  nothing  more  than  the  ordinary 
clause  of  forfeiture  In  a  lease.  It  hardly 
seems  reasonable,  and  it  cannot  be  reasonable, 
that  one  can  have  the  option  to  make  a  con- 
tract valid  or  Invalid,  as  he  chooses ;  that  he 
can  retain  the  privileges  and  get  rid  of  the 
obligation  by  refusing  or  falling  to  perform 
his  part,  by  paying  the  stipulated  amount  for 
the  privileges  so  retained. 

The  other  points  need  no  discussion;  they 
are  without  legal  merit. 

The  Judgment  of  the  circuit  court  is  there- 
fore affirmed,  with  costs. 


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101  ATLANTIC  REPORTEB 


(N.J. 


(87  N.  J.  Eq.  S20) 

SANI>S  T.  nUDDICK  et  aL     (No.  B&.) 

(CSovrt  of  EnoTB  and  Appeals  of  New  Jersey. 

June  18.  1917.) 

(Sullahui  hv  the  Court,} 

1.  Iif8A»fB  Pebsons  9=366— Contetanck—Ao- 
TiON  TO  Set  Aside. 

Where  it  appears  that  the  mind  of  the  owner 
of  real  estate  was  so  impaired  as  to  make  her 
incapable  of  understanding  the  nature  and  ef- 
fect of  her  acts  or  the  affairs  in  which  she  was 
participating,  the  purchaser  of  her  real  estate  at 
a  sheriff's  sale  (made  wiiile  she  was  trying  and 
substantially  ready  to  pay  the  execution),  who 
knew  of  her  mental  condition,  and  who  purchas- 
ed at  a  price  so  inadequate  as  to  shock  the  con- 
science, will  be  directed,  on  payment  to  him  of 
the  money  expended  for  the  property  with  law- 
ful interest,  to  reconvey  the  real  estate. 

(Ed.  Note.— Elor  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  SS  1(X)-102,  101,  106l] 

2.  INSAITK  Pkbsorb  €=»€6— Convstahob— Ao- 
TioN  TO  Set  Aside— Costs. 

Where  the  guardian  of  a  Innatic,  before 
filing  her  bill,  tenders  to  the  purchaser  of  the 
lunatic's  real  estate,  bought  at  a  sheriff's  sale, 
the  amount  of  his  purchase  money  and  inters 
est,  which  tender  was  declined,  it  is  allowable 
for  the  Court  of  Chancery  to  require  the  pur- 
chaser to  pay  the  complainant's  costs  in  that 
court,  upon  the  court's  finding  that  equity  re- 
quires a  decree  that  the  purchaser  shall  recon- 
vey the  property  to  the  complainant  upon  pay- 
ment of  the  purchase  price  and  lawful  interest. 
[Eld.  Note. — For  other  cases,  see  Insane  Pel^ 
sons.  Cent  Dig.  {{  100-102,  104,  106.] 

3.  Jtjdoment  €=>464  —  Bquitabiji  Reuet  — 
Decbee. 

The  Court  of  Chancery  has  no  power  in  a 
strict  sense  of  the  term  to  set  sside  a  judgment 
at  law.  In  granting  relief  it  does  not  inter- 
fere with  the  records  of  the  law  court  or  strike 
therefrom  the  judgment.  It  treats  the  proceed- 
ings at  law  as  valid  and  grants  relief  against 
the  (Jonsequences  thereof  because  tho  rights  ac- 
quired thereunder  cannot  be  retained  in  good 
conscienc«  by  reason  of  some  new  matter  on 
whidi  the  court  of  law  did  not  or  could  not 
pronounce  a  judgment  or  which  for  some  just 
cause  the  party  could  not  bring  to  the  consid- 
eration of  the  court  of  law.  The  suit  in  equity 
to  obtain  relief  is  strictly  a  proceeding  in  per- 
sonam, and  the  decree  adjudges  the  rights  of 
the  parties  inter  sese  in  relation  to  the  judg- 
ment, and  the  relief  is  limited  to  enjoining  par- 
ties from  proceeding  to  enforce  the  judgment. 
[Ekl.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  H  808,  901.] 

Appeal  from  Court  of  Chancery. 

Bill  In  equity  by  Clara  L.  Sands,  a  Innatic, 
by  Elizabeth  R.  Sands,  guardian,  against 
JB^rank  Rnddick  and  others,  to  compel  a  re- 
conveyance of  real  estate.  B^om  a  decree 
of  the  Court  of  Chancery  (99  Ati.  101)  or- 
dered for  complainant,  defendants  appeal. 
Reversed,  and  record  remitted  for  the  en- 
try of  a  decree. 

William  J.  Morrison,  Jr.,  of  Rldgefleld 
Park,  for  appellants.  Hunziker  &  Randall, 
of  Paterson,  for  appellee. 

TRENCIIARD,  J,  The  primary  object  of 
the  complainant's  bill  was  to  compel  a  re- 
conveyance of  real  estate.  The  facts  were 
these:  One  Phillips  recovered  a  Judgment  for 


$428  and  costs  against  Clara  L.  Sands  In  the 
Bergen  county  common  pleas  court  Mrs. 
Sands  owed  the  money,  and  the  Judgment 
was  properly  recovered.  Execution  was  Is- 
sued thereon  and  her  real  estate  was  sold  to 
the  defendant  below  Frank  Ruddlck  for  $500 
apparently  because  on  the  day  of  sale  she 
reached  the  sheriff's  ofl9ce  with  the  money 
to  satisfy  the  execution  a  few  minutes  too 
late.  The  real  estate  thus  sold  was  worth 
|!10,000,  and  was  subject  to  a  mortgage  of 
$.3,500.  Mrs.  Sands  then  instituted  proceed- 
ings in  the  Bergen  pleas  and  in  the  Supreme 
Court  to  obtain  relief  from  such  sale.  Of 
course,  in  these  proceedings  no  question  was 
raised  as  to  her  sanity,  and  she  was  denied 
relief.  The  purchaser,  Ruddlck,  then  brought 
an  ejectment  suit  against  Mrs.  Sands,  took 
Judgment  by  default,  and  a  writ  of  possession 
issued.  Shortly  thereafter,  on  the  petition 
of  her  daughter,  proceedings  were  taken  in 
the  Court  of  Chancery  to  inquire  into  the 
lunacy  of  Mrs.  Sands.  The  result  of  such  In- 
qulsltton  was  an  adjudication  that  she  was 
then,  and  for  11  years  then  last  past  had 
been,  a  lunatic,  without  Indd  intervals,  and 
not  capable  of  the  government  of  herself  and 
her  estate.  The  'daughter  was  then  appoint- 
ed her  guardian.  She  first  tendered  to  Rud- 
dlck a  sum  sufllclent  to  reimburse  him  for 
his  outlay  of  purchase  money  and  expenses, 
and  requested  a  reconveyance  of  the  real  es- 
tate. Such  request  being  refused,  she  filed 
this  bill  to  compel  a  reconveyance  at  the 
property. 

At  the  hearing  the  foregoing  facts  appear- 
ed. Apart  from  the  presumptive  effect  of  the 
inquisition  finding  of  lunacy  overreaching  the 
Judgment  and  sale,  it  otherwise  appeared  to 
the  satisfaction  of  the  Vice  Chancellor,  and 
to  our  satisfaction,  that  at  the  time  of  the 
Judgment  and  sale,  Mrs.  Sands*  mind  was  so 
impaired  as  to  nuike  her  incapable  of  un- 
derstanding the  nature  and  effect  of  her  acta 
or  the  affairs  in  which  she  was  participating. 
It  also  appeared  that  Ruddlck,  who  was  her 
next-door  neighbor,  knew  of  her  mental  con- 
dition. 

The  court  below  decreed  that  the  Phlllipe 
Judgment,  the  execution  Issued  thereon,  the 
deed  from  the  sheriff  to  Ruddlck,  and  Rud- 
dlck's  Judgment  In  ejectment  and  writ  of 
possession  were  null  and  void,  and  that  Rud- 
dlck should  reconvey  the  lands  to  Mrs.  Sands 
upon  payment  to  him  of  the  purchase  price 
with  interest,  and  also  decreed  that  he  should 
pay  to  the  complainant  her  costs  in  the  Court 
of  Chancery.  We  are  of  the  opinion  that  In 
the  main  the  Vice  Chancellor  was  right 

[1]  On  familiar  principles,  where,  as  here. 
it  appears  that  the  mind  of  the  owner  of  real 
estate  was  so  Impaired  as  to  make  her  In- 
capable of  understanding  the  nature  and  el- 
fect  of  her  acts  or  the  affairs  in  which  she 
was  participating,  the  purchaser  of  her  real 
estate  at  a  sheriffs  sale  (made  while  sbe 
was  trying  and  substantially  ready  to  pay 


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269 


the  execntlon),  who  knew  of  her  mental  con- 
dition, and  who  purchased  at  a  price  so  In- 
adequate as  to  shock  the  conscience,  will  be 
directed,  on  payment  to  him  of  the  money 
expended  for  the  property  with  lawful  inter- 
est, to  reconvey  the  land.  We  therefore  con- 
clude that  the  decree  Is  quite  right  in  so  far 
as  it  declares  the  deed  null  and  Yold,  and 
directs,  upon  terms,  a  reconveyance  to  the 
complainant. 

[2]  We  also  think  the  decree  right  as  to 
costa  Where,  as  here,  the  guardian  of  a 
lunatic,  before  flllng  her  bill,  tenders  to  the 
purchaser  of  the  lunatic's  real  estate,  bought 
at  a  sheriff's  sale,  the  amount  of  bis  pur- 
chase mon^  and  Interest,  which  tender  was 
declined.  It  Is  allowable  for  the  Court  of 
(Siancery  to  require  the  purchaser  to  pay 
the  complainant's  costs  in  that  court,  upon 
the  court's  finding  that  equity  requires  a 
decree  that  the  purchaser  shall  reconvey  the 
property  to  the  complainant  upon  payment 
of  the  purchase  price  and  lawful  Interest 

[3]  But  we  think  the  decree  below  went  too 
Car  tn  adjudging  the  Phillips  Judgment  and 
execution  and  the  Ruddick  Judgment  in  eject- 
m»)t  and  writ  of  possession  to  be  null  and 
void.  The  Court  of  Chancery  has  no  power 
In  the  strict  sense  of  the  term  to  set  aside 
a  Judgment  at  law.  In  granting  relief  it 
does  not  interfere  with  the  records  of  the 
law  court  or  strike  therefrom  the  Judgment 
It  treats  the  proceedings  at  law  as  valid  and 
grants  relief  against  the  consequences  there- 
of because  the  rights  acquired  thereunder 
cannot  be  retained  in  good  conscience  by  rea- 
son of  some  new  matter  on  which  the  court 
of  law  did  not  or  could  not  pronounce  a  Judg- 
ment or  which  for  some  Just  cause  the  party 
could  not  bring  to  the  consideration  of  the 
court  of  law.  The  suit  in  equity  to  obtain 
relief  is  strictly  a  proceeding  in  personam, 
and  the  decree  adjudges  the  rights  of  the 
parties  inter  sese  In  relation  to  the  Judg- 
ment and  the  relief  is  limited  to  enjoining 
parties  from  proceeding  to  enforce  the  Judg- 
ment Clark  T.  Board  of  Education  of  Bay- 
onne,  76  N.  J.  Eq.  326,  74  Ati.  319,  25  U  R. 
A.  (N.  8.)  827,  139  Am.  St  Rep.  763. 

The  application  of  these  principles  to  the 
ease  at  bar  necessitates  the  elimination  from 
the  decree  of  such  parts  thereof  as  adjudg- 
ed null  and  void  the  Phillips  Judgment  and 
'execution  and  the  Ruddick  Judgment  In  eject- 
ment and  writ  of  possession.  The  decree 
should,  however,  enjoin  the  defendiuit  Rud- 
dick from  proceeding  to  enforce  his  Judgment 
In  ejectment  and  writ  of  possession. 

With  respect  to  the  Plillllps  Judgment  and 
<».xecutlon  it  is  sufficient  to  say  that  It  ap- 
pears that  Phillips  has  properly  received 
the  moneys  due  thereon,  and,  if  such  Judg- 
ment is  not  already  satisfied  of  record,  it 
may  be  canceled  upon  proper  proceedings  for 
that  purpose.  There  Is  therefore  no  reason 
for  enjoining  further  proceedings  thereon. 
The  decree  will  be  reversed  to  the  extent 


indicated,   and  the  record  remitted  t»  the 
Court  of  Chancery  for  the  entry  of  a  decree 
in  accordance  with  this  opinion. 
Ko  costs  will  be  allowed  in  this  court 


(90  N.  3.  Law,  546) 
BOKBRT  V.  TOWN  OP  WEST  ORANGE. 
(No.  123.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(Syllabua  iy  the  Court.) 

1.  Towns  «=>36,  38— Disposition  of  Gasb- 
AOB— Adthobitt— Obdinanc«. 

A  town  has  the  authority  to  provide  for  the 
collection  and  disposal  of  ashes  and  garbage  in 
either  of  two  ways,  but  not  otherwise:  first, 
it  may  provide  for  the  doin^  of  the  work  by  the 
town  itself.  If  It  adopts  this  course,  it  must  do 
so  by  ordinance,  with  all  of  the  formalities  neo- 
essary  to  enact  a  valid  ordinance.  Second,  it 
may  make  a  contract  with  some  one  to  do  the 
work.  But  where  more  than  $S00  is  to  be  ex- 
pended, it  has  no  authority  to  make  a  valid  con- 
tract until  it  has  first  publicly  advertised  for 
bids,  and  the  contract  can  then  be  awarded 
only  to  the  lowest  responsible  bidder. 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  U  69,  72.] 

2.  Towns  «=S9(1)— Rbmovai,  or  Oabbaob-^ 
Ul,tiia  Vires  Contbaot  —  Rxoovsbt  oh 
Quantum  Msbuit. 

Where  a  town  has  contracted  for  the  remov- 
al of  ashes  and  garbage,  involving  an  expendi- 
ture of  more  than  $500,  without  complying  with 
the  provisions  of  chapter  342  of  Laws  1912 
(P.  L.  p.  593),  requiring  advertisement  for  bids 
and  award  to  the  lowest  responsible  bidder, 
there  can  be  no  recovery  on  a  quantum  meruit 
for  services  rendered  under  such  ultra  vires 
contract  after  the  service  upon  the  contractor  of 
the  writ  of  certiorari  sued  out  to  review  the  va- 
lidity of  the  contract 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  I  73.] 

3.  Towns  ®=989(1)— Ultra  Vibes  Contract— 
Recovery  on  Quantum  Meruit. 

The  law  will  not  permit  a  recovery  on  a 
quantum  meruit  in  a  suit  against  a  munidpal- 
ity  whore  an  express  contract  would  be  ultra 
vires  because  in  violation  of  chapter  342  of 
Ivaws  1912  (P.  L.  p.  693). 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  I  73.] 

Appeal  from  Circuit  Court,  Essex  CJonnty. 

Action  by  Frank  G.  Eckert  against  the  Town 
of  West  Orange.  From  a  Judgment  of  the 
Essex  circuit  court  In  favor  of  the  defendant 
the   plaintiff   appeals.     Affirmed. 

Arthur  B.  Seymour,  of  Orange,  for  ap- 
pellant Borden  D.  Whiting  and  Ira  C. 
Moore,  Jr.,  both  of  Newark,  for  appellee. 

TRENCHARD,  J.  This  Is  an  appeal  from 
a  Judgment  of  the  Eeaex  county  circuit  court 
in  favor  of  the  i.defendnnt  in  an  action 
brought  to  recover  compensation  for  col- 
lecting and  disposing  of  ashes  and  garbage 
in  the  town  of  West  Orange.  The  material 
facts  are  as  follows: 

The  town  coimcil  of  the  town  of  West 
Orange  possed  an  ordinance  purporting  to 
create  the  office  of  town  scavenger.     This 


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ordinance  provided  that  this  so-called  ofBcer 
shonid  collect  all  ashes  and  £:arbage  and  dis- 
pose of  the  same  at  a  place  to  be  provided 
by  himself.  His  salary,  by  an  amendment 
passed  May  5,  1914,  was  fixed  at  the  rate  of 
$469.50  a  month.  This  was  intended  not 
only  to  compensate  him  for  his  services  In 
euperrlsing  the  work,  but  also  to  reimburse 
blm  for  bis  necessary  expenses,  such  as 
hiring  men  and  providing  wagons.  Eckert, 
the  platntlfl,  was  appointed  town  scavenger 
nnder  this  ordinance. 

On  July  20,  1914,  a  writ  of  certiorari  was 
allowed  attacking  the  ordinance  and  the 
appointment  of  Eckert  thereunder,  and  the 
writ  was  served  upon  Eckert  July  23,  1914. 
One  of  the  grounds  of  attack  was  that  It 
violated  chapter  342  of  the  Laws  of  1912 
(P.  I*  p.  593),  which  requires  that,  where 
an  expenditure  of  more  than  $500  is  to  be 
Incurred  for  labor,  materials,  etc.,  the  town 
council  must  first  publicly  advertise  for  bids 
and  award  the  contract  to  the  lowest  re- 
sponsible bidder.  On  August  14, 1914,  the  Su- 
preme Court  rendered  Judgment  setting  aside 
the  ordinance  and  appointment  and  all  pro- 
ceedings thereunder.  Briefly  the  basis  of  the 
decision  was  that  the  person  appointed  un- 
der an  ordinance  of  this  character  was  not 
an  officer  of  the  town,  and  the  services  were 
such  aa  should  be  regulated  by  contract 

The  plalntlft  continued  to  act  as  scavenger 
until  September  15,  1914,  thereby  serving  aft- 
er service  of  the  writ  of  certiorari  upon  hlra, 
and  even  after  entry  of  the  Judgment  setting 
aside  the  ordinance  and  his  appointment  He 
was  paid  In  full  up  to  July  31,  1914,  which 
was  one  week  after  the  writ  of  certiorari 
was  served  upon  him.  He  has  not  been  paid 
for  the  work  done  from  August  1,  1914,  to 
September  15,  1914.  It  is  to  recover  compen- 
sation for  work  performed  by  him  during 
this  period  that  this  suit  was  brought  We 
are  of  the  opinion  that  the  Judgment  for  the 
defendant  was  right 

The  contention  that,  even  though  the  con- 
tract was  set  aside  as  Illegal,  the  plaintiff  Is 
nevertheless  entitled  to  recover  on  a  quan- 
tum meruit.  Is  not  well  founded  in  law. 
A  municipality  Is  under  no  legal  obligation  to 
take  charge  of  the  rubbish  or  garbage  which 
accumulates  upon  the  properties  of  the  in- 
habitants thereof.  It  has  authority  to  do  so, 
however,  by  virtue  of  the  following  acts  of 
the  Legislature: 

A  supplement  to  the  Town  Act  of  1895  (4 
C.  S.  6633,  par.  378),  provides  that: 

"The  council  shall  have  power  by  ordinance 
to  provide  for  the  collection,  removal,  treat- 
ment and  disposal  of  ashes  and  garbage,  and  to 
appropriate  and  provide  for  raising  money  by 
taxation  for  the  said  purposes,  or  any  or  either 
of  them." 

The  Town  Act  of  1805  (P.  L.  1895,  p.  358), 
as  amended  hy  P.  L.  1906,  p.  324,  provides: 

"No  ordinnnce  or  by-lnw  shall  be  passed  by 
the  town  coimcil,  unless  the  same  shall  have 
been  introduced  at  a  previous  stated  meeting, 
and  shall  be  agreed  to  by  a  majority  of  the  mem- 
bers  of  tba  conncil;    and  no  ordinance   shall 


take  effect  until  five  days  after  it  shall  have 
t)«cn  published  in  the  official  newspapers  of  the 
town,  and  if  there  be  none,  in  at  least  one 
newspaper  published  in  the  county  and  circulat- 
ing in  the  town.    •    •    •  •• 

Chapter  66  of  the  Laws  of  1914  (P.  L. 
p.  91)   provides  as  follows: 

"It  shall  be  lawful  for  the  governing  body  of 
(iny  incorporated  town  of  this  state  to  enter 
into  and  mako  a  contract  or  contracts,  not  ex- 
ceeding the  term  of  five  years  at  a  time,  with 
any  corporation  or  individual  for  the  collec- 
tion and  removal  of  ashes  and  rubbish,  and  for 
the  collection,  removal  and  disposal  of  garbage." 

Chapter  842  of  the  Laws  of  1912  (P.  L. 
p.   593)   provides  as  follows: 

"Where  and  whenever  hereafter  it  shall  be 
lawful  and  desirable  for  a  public  body  in  any 
coanty,  city,  town,  township,  borough  or  vil- 
lage to  let  contracts  or  agreements  for  the  doing 
of  any  work  or  for  the  furnishing  of  any  mate- 
rials or  labor,  where  the  sum  to  be  expended 
exceeds  the  sum  of  five  hundred  dollars,  the  ac- 
tion of  any  auch  public  body  entering  into  such 
a^eement  or  contract,  or  giving  any  order  for 
the  doing  of  any  work  or  for  furnishing  of  any 
materials  or  labor,  or  for  any  such  expendi- 
tures, shall  be  invalid  unless  such  public  body 
shall  first  publicly  advertise  for  bids  therefor, 
and  shall  award  said  contract  for  the  doing  of 
said  work  or  the  furnishing  of  such  materials 
or  labor  to  the  lowest  responsible  bidder:  Pro- 
vided, however,  that  said  public  body  may,  nev- 
ertheless, reject  any  and  all  bids." 

[1]  It  thus  appears  that  the  town  council 
has  authority  to  provide  for  the  collection 
and  disposal  of  rubbish  and  garbage  In  either 
of  two  ways,  but  not  otherwise:  First  it 
may  provide  for  the  doing  of  the  work  by 
the  town  itself.  If  it  adopts  this  course,  it 
must  do  so  by  ordinance,  with  all  of  the 
formalities  necessary  to  enact  a  valid  ordi- 
nance. Second,  It  may  make  a  contract  with 
some  one  to  do  the  work.  But,  where  more 
than  $500  is  to  be  expended,  it  has  no  author- 
ity to  make  a  valid  contract  until  it  has  first 
publicly  advertised  for  bids,  and  the  con- 
tract can  then  be  awarded  only  to  the  low- 
est responsible  bidder. 

The  sections  of  the  Town  Act  and  the  acts 
of  1914  and  1912  above  quoted  should  be  read 
together  In  the  same  manner  as  this  court  In 
Townsend  v.  Atlantic  City,  72  N.  J.  Law, 
474,  65  Atl.  509,  decided  that  the  act  under 
which  Atlantic  City  was  organized  (P.  L. 
1902,  p.  284)  and  the  Garbage  Act  (P.  L. 
1902,  p.  200)  should  be  read  together.  The 
town  therefore  had  no  power  to  make  the  con- 
tract in  question  with  the  plaintiff  without 
complying  substantially  with  the  provisions 
of  the  act  of  1912,  and  that  admittedly  it 
did  not  do. 

[2,3]  Where,  as  in  this  case,  &  town  has 
contracted  for  the  removal  of  ashes  and 
garbage  involving  an  expenditure  of  more 
than  $500,  without  complying  with  the  pro- 
visions of  chapter  342  of  the  Laws  of  1912 
(P.  L.  p.  503),  requiring  advertisement  for 
bids  and  award  to  the  lowest  responsible 
bidder,  there  can  be  no  recovery  on  a  quan- 
tum meruit  for  services  rendered  under  sucb 
ultra  vires  contract  after  the  aervloe  upon 


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ECKERT  v.  TOWN  OF  WEST  OBANOE 


271 


tbe  contractor  of  tbe  writ  of  certiorari  to 
rerlew  tlie  validity  of  the  contract. 

Tbis  case  is  different  from  a  suit  against 
a  private  corporation  on  a  claim  arising 
out  of  an  ultra  vires  contract.  Tlie  defend- 
ant In  tills  case  is  a  municipal  corporation. 
Tbe  contract  out  of  which  tbe  plaintiff's 
claim  arises  is  ultra  vires,  not  because  of  tbe 
Iirovisions  of  some  private  charter,  but  be- 
cause It  violates  the  public  policy  of  tbe 
state. 

Tbe  Legislature  by  the  act  of  1012  provid- 
ed that  all  public  contracts  Involving  the  ex- 
penditure of  more  than  $500  must  be  publicly 
advertised  and  awarded  to  the  lowest  bidder. 
Ttxe  purpose  and  importance  of  this  act  is 
too  obvious  to  require  comment  Tbe  plain- 
tiff Is  now  asking  that  a  contract  be  implied 
whlcb  this  law  expressly  declares  shall  b 
invalid.  His  claim  Is  for  more  than  $500.  It 
Is  for  services  performed  after  tbe  granting 
and  service  of  a  writ  of  certiorari  to  review 
bis  express  contract  with  the  town,  and  in 
large  part  performed  after  the  Supreme 
Court  had  set  aside  his  express  contract  as 
illegal.  If  he  can  recover  on  a  quantum 
meruit  for  these  services,  it  would  seem  that 
there  would  be  nothing  to  prevent  a  town 
council  BO  disposed  from  permitting  talm  to 
continue  Indefinitely  to  act  as  town  scavenger 
without  any  express  contract,  and  thus  evade 
tbe  provisions  of  the  act  of  1912  entirely. 

Moreover,  the  law  wlU  not  permit  recovery 
on  a  quantum  meruit  In  a  suit  against  a 
municipality  where  an  express  contract 
would  be  ultra  vires.  Recovery  has  frequent- 
ly beeu  allowed  on  a  quantum  meruit  where 
there  has  been  some  unimportant  Irregularity 
in  the  proceedings,  or  an  innocent  mistake  aa 
to  some  matter  of  fact.  But  the  law  will  not 
raise  an  Implied  promise  which  would,  as  in 
tbis  case,  be  In  direct  defiance  of  an  act  of 
tbe  Legislature.  If  the  plalntUTs  contention 
were  correct,  tbis  law  (P.  L.  1912,  p.  593), 
which  applies  to  all  municipalities  alike,  and 
represents  a  definite  public  policy,  could  be 
nullified  by  proof  of  the  fact  that  the  man 
had  d<me  tbe  work,  and  therefore  was  en- 
titled to^  what  such  work  was  reasonably 
worth. 

Id  Swackbamer  v.  Hackettstown,  37  N.  X 
Law,  191,  it  was  held  that  a  note  given  for  an 
unauthorized  loan  could  not  be  enforced 
even  though  the  money  borrowed  had  been 
expended  for  municipal  purposes.  CtdeC 
.Tustice  Bensley,  In  delivering  the  opinion  of 
the  Supreme  Court,  said  (at  pa'ge  196): 

"Nor  do  I  think  that  It  adds  anything  to  tbe 
right  to  enforce  tbe  note  in  tbis  case  that  the 
moncv  which  it  represents,  and  which  wna  bor- 
rowed, baa  been  expended  in  behalf  of  the  cor- 
poration for  legitimate  purposes.  The  argument 
on  this  bead  was  that,  as  the  money  bad  gone 
for  the  benefit  of  the  corporation,  the  law,  up- 
on general  prindpleg,  would  compel  its  repay- 
ment. If  this  is  so,  then  tbe  rejection  of  au  im- 
plied power  to  borrow  is  of  little  avail.  The 
doctrine,  although  repudiated  in  the  abstract, 
would  be  ratified  in  the  concrete.  •  •  •  It 
Is  to  be  noted  that  it  is  altogether  a  fallacy  to 


argue  that  the  law  will  raise  an  implied  prom- 
ise to  repay  the  money  after  it  has  been  used. 
The  impediment  to  sucb  a  theory  is  that  the 
corporation  has  not  the  competency  to  make  the 
promise  thus  sought  to  be  implied.  An  express 
promise,  to  the  effect  contended  for,  would  be 
illognl.  and  therefore  clearly  the  law  will  not 
create  oue  by  implication.  •  •  *  No  one  can 
justly  reproach  the  law  for  not  providing  him  a 
remedy  for  his  own  folly  or  indiscretion.  Such 
folly  or  indiscretion  may  have  enabled  tbe 
city  officials  to  create  a  burden,  or  may  have 
stimulated  them  to  acts  of  extravagance  which 
would  not  have  been  otherwise  created  or  done. 
It  is  but  just  that  tbe  individual  who  has  oc- 
casioned the  evil  should  bear  the  loss." 

In  Hill  Dredging  C!o.  v.  Ventnor  City,  77  N. 
J.  Eq.  467.  78  Atl.  077,  it  was  held  that  a 
municipal  corporation  cannot  be  bound  by  an 
engagement  which  it  had  no  power  to  make; 
and  tbe  corporate  powers  of  such  a  corpora- 
tion cannot  be  extended  by  tbe  doctrine  of 
estoppeL 

In  Dallas  v.  Sea  Isle  City,  84  N.  J.  Law, 
679,  87  AtL  467,  this  court  said: 

"Courts  are  instituted  to  carry  into  effect  the 
laws.  They  cannot  become  auxiliary  to  the 
consummation  of  violations  of  law.  And  so  it 
has  been  held  with  practical  unanimity  in  such 
circumstances,  since  an  express  promise  to  pay 
is  ultra  vires  and  unlawful,  the  law  will  not 
raise  an  implied  promise." 

See,  also,  Bourgeois  v.  Freeholders  of  At- 
lantic, 82  N.  J.  Law,  82,  81  Atl.  358,  and  cases 
there  collected. 

Tbe  cases  cited  by  the  plaintiff  in  his  brief 
furnish  no  support  for  a  recovery  in  this  case. 
For  example,  In  the  Bourgeois  Oase,  supra, 
the  lumber  was  ordered  by  an  unauthorized 
agent,  but  the  board  of  freeholders  had  au- 
thority to  buy  tbe  lumber  and  by  Its  acts 
ratified  the  purchase. 

In  N.  Y.,  8.  ft  W.  R.  R.  Co.  v.  Paterson, 
86  N.  J.  Law,  101,  91  Atl.  324,  tbe  city  had 
the  power  to  make  the  contract,  although  it 
was  not  regularly  executed. 

In  Wentlnk  v.  Freeholders,  66  N.  J.  Law, 
65,  48  Atl.  609,  there  was  no  lack  of  power 
to  make  the  contract.  There  was  an  Inno- 
cent mistake  for  which  the  plaintiff  was  not 
responsible,  and  as  to  a  matter  about  which 
he  was  not  bound  to  Inquire. 

In  Klemm  v.  Newark,  61  N.  J.  Law,  112, 
38  Atl.  692,  tbe  city  was  held  to  have  tbe 
power  to  make  the  contract;  as  the  making 
of  it  acted  as  a  suspension  of  the  ordinance 
which  forbade  it  See  MacLear  v.  Newark, 
77  N.  J.  Law,  712,  714,  73  AO.  503. 

In  Tappan  v.  Long  Branch  Commission,  00 
N.  J.  Law,  371,  35  Atl.  1070,  the  proceedings 
were  regular  on  th^r  face,  and  the  dty  was 
acting  wltUn  the  scope  of  its  chartered 
power. 

The  case  of  Bigelow  v.  Perth  Amboy,  25  N. 
J.  Law,  297,  does  not  appear  to  be  applica- 
ble, but  in  that  case  the  city  bad  tbe  power 
to  purchase  the  materiaL 

It  is  true  that  tbe  work  performed  by  the 
plaintiff  In  the  case  at  bar  was  of  a  charac 
ter  which  the  defendant  was  authorized  by 
law  to  have  done;  and  It  is  true  that  the 
plaintiff  performed  the  work  for  the  defend- 


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272 


101  ATLANTIC  REPOUTER 


(N.J. 


ant  at  its  request.  The  plalntllTs  dlflScnlty 
Is  that  the  request  was  ultra  vires  and  In- 
valid. While  the  defendant  was  authorized 
to  make  a  contract  for  this  work,  its  author- 
ity was  conditional  upon  its  awarding  the 
contract  in  accordance  with  the  provisions 
of  the  statute  of  1012.  It  had  not  the  power 
either  to  make  or  to  ratify  an  express  con- 
tract in  any  other  manner ;  and  the  law  will 
not  imply  a  contract  which  the  parties  had 
not  power  to  make.  The  plaintiff  in  this 
case  was  a  party  to  a  scheme  to  evade  and 
nullify  a  well-deflned  public  policy  of  this 
state,  and  his  present  predicament  is  a  direct 
result  of  that  scheme.  What  his  motive  may 
have  been  is  immaterial.  Under  such  cir- 
cumstances the  courts  will  not  aid  him  by 
implying  a  contract  which  the  law  expressly 
forbids,  but  wUl  leave  him  where  it  finds 
him. 

The  Judgment  below  will  be  aflBrmed,  with 
costs. 

(M  N.  J.  Lav,  512) 

DALX  V.  GABVEN.     (No.  133.) 

'Court  of  Errors  and  Appeals  of  New  Jersey. 
Jane  18, 1917.) 

(EvUahut  bv  th«  Covrt.) 

1.  Statutes  «=5>64(2)— Prefibential  Voting 
Act— PARTtAL  Unconstitutionalitt— Ef- 
fect—Titlb  to  Office. 

The  provisions  of  the  act  of  April  7,  1914, 
commonly  known  as  the  Preferential  Voting 
Act  (Pamphlet  Laws  1914,  p.  170),  that  "all 
ballots  shall  be  void  which  do  not  contain  first 
choice  votes  for  as  many  candidates  as  there  are 
offices  to  be  filled,"  Is  not  separable  from  the 
other  provisions  of  the  statute,  so  that  it  may 
be  rejected  and  the  residue  of  the  statute  be 
permitted  to  stand ;  hence,  if  such  provision 
be  unconstitutional  the  act  as  a  whole  tails,  and 
an  election  held  under  its  terms  is  incapable  of 
conferring  a  de  jure  title  to  a  private  relator  un- 
der section  4  of  the  Quo  Warranto  Act  (3  Comp. 
St.  1810,  p.  4212). 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  i§  59,  195.] 

2.  CONSTITUTIONAI.    LAW    «=»46(3)— VALIDITY 

OF  Statute— Necessity  of  Determination. 
In  quo  warranto,  when  a  defeated  candidate 
for  an  elective  office,  in  order  to  obtain  a  judicial 
determination  that  be  received  a  plurality  of 
the  ballots  cast  at  such  election,  seeks  a  deci- 
sion as  to  the  unconstitutionality  of  the  statute 
under  which  the  election  was  held,  which  is  fatal 
to  his  de  jure  title  to  the  office,  the  court,  in 
view  of  the  futility  of  deciding  the  question,  will 
decline  to  pass  Mpon  it. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  {  45.] 

Appeal  from  Supreme  Court. 

Information  in  tlie  nature  of  quo  warranto 
by  Bert  Daly  against  Pierre  P.  Garven. 
S^m  the  Judgment  of  the  Supreme  Court  in 
favor  of  defendant,  entered  upon  a  postea 
certifying  the  result  of  the  trial  before  the 
circuit  court  of  Hudson  county,  plaintiff  ap- 
peals.   Affirmed. 

Elmer  W.  Demarest,  of  Jersey  City,  for  ap- 
pellant. Gilbert  Collins,  of  Jersey  City,  for 
appellee. 


GARRISON,  J.  This  appeal  brings  up  for 
review  a  Judgment  of  the  Supreme  Court  la 
favor  of  the  defendant  in  quo  warranto  enter- 
ed upon  a  postea  certifying  the  result  of  a 
trial  before  the  circuit  court  of  Hudson  coun- 
ty. The  parties  were  candidates  for  the  of- 
fice of  commissioner  of  the  city  of  Bayonne 
under  the  act  of  1911,  commonly  known  as 
the  Walsh  Act  (Pamphlet  Laws  1911,  p.  4(52). 
Five  commissioners  were  to  be  elected.  The 
election  was  held  under  the  supplement  of 
1914,  commonly  known  as  the  Preferential 
Voting  Act  (P,  L.  1914,  p.  170),  the  pertinent 
provision  of  which  is  that  "all  ballots  shall 
be  void  which  do  not  contain  first  choice 
votes  for  as  many  candidates  as  there  are 
offices  to  be  filled,"  which  was  brought  to 
the  attention  of  the  voters  by  a  direction  on 
the  ballot,  viz.,  "If  more  than  one  office  is 
to  be  filled,  vote  as  many  first  choices  as 
there  are  offices  to  be  elected  or  the  t»aIIot 
will  be  void." 

More  tlian  9,000  ballots  were  cast  in  com- 
pliance with  this  statutory  provision,  and 
counted  for  the  respective  candidates.  The 
canvass  of  the  votes  so  counted  showed  the 
election  of  Garven,  the  defendant,  over  Daly, 
the  relator,  by  less  than  a  score  of  votes.  In 
making  this  canvass  192  ballots  were  reject- 
ed, for  the  reason  that  they  did  not  contain 
first  choice  votes  for  five  candidates  for  the 
office  of  commissioner.  If  these  ballots  had 
been  counted,  they  would  change  the  result 
by  giving  the  relator  a  plurality  over  the  de- 
fendant. The  relator,  deeming  the  provision 
of  the  statute  which  required  the  rejection 
of  these  192  ballots  to  be  unconstitutional, 
and  believing  that  he  was  lawfully  entitled  to 
the  office  in  question,  filed  his  information  in 
the  nature  of  a  quo  warranto  under  the 
fourth  secti(m  of  the  Quo  Warranto  Act,  in 
which  he  set  forth  the  foregoing  facts  in 
detail,  concluding  with  the  charge  that  the 
said  relator  by  virtue  of  said  election  was 
lawfully  elected  one  of  the  commissioners  of 
the  said  city  of  Bayonne,  and  is  entitled  to 
said  office,  "which  the  said  Pierre  P.  Garven 
hath  usurped  to  the  exclusion  of  said  Bert 
Daly."  Issue  was  Joined,  and  upon  the  trial 
at  nisi  prius,  Judge  Speer,  sitting  by  consent 
without  a  Jury,  held  that  the  act  of  1914  was 
not  unconstitutional,  which  decision  Justified 
the  rejection  of  the  192  ballots  on  which  the 
relator's  claim  to  the  office  rested,  and  this  Is 
the  trial  error  that  is  laid  as  the  ground  foc- 
the  reversal  of  the  Judgment  of  the  court: 
below. 

[1]  It  is  the  contention  of  the  appellant 
that  the  act  of  1914  is  unconstitutional,  for 
the  reason  that  it  places  a  compulsion  upon 
all  electors  to  vote  a  first  choice  for  as  many 
candidates  for  commissioner  as  there  were 
offices  to  be  filled.  His  argument  is  that  this 
provision  may  operate  to  shut  off  voters  from 
the  ballot  box  and  hence  must  Call  before  tba 
constitutional  guaranty  of  the  right  to  vote. 


4s>For  oiber  cases  see  lame  topic  and  KESY-NUMBBR  In  all  K<7-Number*d  Dtsasta  and  lodexw 


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N.J.) 


DALY  V.  GARVEN 


27a 


dtlng  Ransom  v.  Black,  54  N.  J.  Law,  461, 
24  AO.  489,  1021,  16  I*  R.  A.  760.  The  fol- 
lowing quotation  from  the  brief  of  oounsel 
for  the  appellant  Illustrates  his  argument: 

"It  might  very  well  happen  In  a  given  case 
that  there  were  only  five  candidates  for  five  of- 
fices. Two  of  them,  perhaps,  might  be  totally 
unfitted  to  fill  the  office.  Yet,  in  order  to  cast  a 
vote  for  the  fit  persons,  the  voter  is  compelled 
to  vote  for  persons  who  shonld  not  be  trusted 
with  the  administration  of  public  offices.'^ 

A  still  stronger  argument  Is  that,  by  be- 
ing compelled  to  vote  for  other  candidates  in 
addition  to  voting  for  those  who  are  bis  real 
choice,  the  elector  may  actually  bring  about 
the  defeat  of  the  candidates  whose  election 
he  desires. 

The  oonstltutlonality  of  an  election  law 
bavlng  these  possibilities  is  evidently  a  de- 
batable Question  of  great  interest  and  Im- 
portance. 

A  subsidiary  question  of  vital  importance 
to  the  appellant's  contention  is  whether  this 
provision,  if  found  to  be  unconstitutional, 
may  be  exscinded  from  the  statute,  leaving 
its  remaining  provisions  to  stand. 

We  are  clearly  of  opinion  that  this  cannot 
be  done.  The  occasion  for  the  exercise  of  this 
delicate  Judicial  function  is  carefully  stated 
by  Mr.  Justice  Depue  in  Johnson  v.  State,  59 
N.  J.  Law,  535,  539,  37  Ati.  949,  950,  39  AtL 
646,  38  L.  R.  A.  373,  in  these  words: 

"The  same  statute  may  be  in  part  constitu- 
tional and  in  part  unconstitutional,  and  if  the 
parts  are  wholly  independent  of  each  other,  that 
which  Is  constituti<Hial  may  stand  and  that 
which  is  nncODstitntional  will  be  rejected ;  but 
if  the  different  parts  of  the  act  are  so  intimately 
connected  with  and  dependent  upon  each  other 
as  to  warrant  a  belief  that  the  Xiegislature  in- 
tended them  as  a  whole,  and  that  if  all  could 
not  be  carried  into  effect  the  Legislature  would 
not  have  passed  the  residue  independently,  and 
some  parts  are  unconstitutional,  all  the  provi- 
sions which  are  thus  dependent  upon  each  other 
must  fail." 

Stated  more  tersely,  the  same  doctrine  is 
laid  down  by  Mr.  Justice  Dixon  in  Albright 
y.  Sussex  County  Lake  Commission,  71  N.  J. 
Law,  309,  59  AtL  146,  69  U  B.  A.  768,  as  fol- 
lows: 

"The  general  rule  with  regard  to  the  validity 
of  a  statutory  scheme,  some  feature  of  which 
proves  to  be  unconstitutional,  is  that,  if  the  ob- 
jectionable feature  be  not  so  important  to  the 
legislative  design  as  to  warrant  the  opinion  that 
the  scheme  would  not  have  been  authorized  with- 
out it^  then  the  residue  of  the  scheme  will  be 
upheld ;   otherwise,  the  entire  scheme  will  faU." 

Tested  by  either  of  these  criteria,  the  pro 
Tision  in  question  is  on  the  one  hand  not 
wboUy  independent  of  the  other  provisions 
of  the  act,  but  on  the  contrary  is  intimately 
connected  with  them  and  with  the  scheme  as 
a  whole,  while  as  to  its  importance.  It  was 
evidently  inserted  under  the  belief  that  with- 
out It  a  complete  board  of  commissioners 
mig|ht  not  be  elected,  ajid  so  the  entire 
scbeme  of  the  statute  be  defeated. 

The  entire  scheme  of  the  statute  relates  to 
tbe  holding  of  an  election  in  which  the  provi- 
sion in  questicm  is  the  most  striking  feature ; 
to  eliminate  such  a  feature  from  a  comi^ete 
101  A.— 18 


legislative  program  requires  an  act  of  legis- 
lation. Such  a  provision  may  be  dropped  by 
a  subsequent  Legislature  as  the  result  of  ex- 
perience or  because  it  ditCers  in  opinion  from 
Its  predecessor.  P.  L.  1916,  p.  216.  That, 
however.  Is  a  totally  dlfCerent  thing  from  a 
Judicial  determination  that  tbe  provision  was 
deemed  of  little  or  no  importance  by  the  Leg- 
islature that  enacted  it 

The  provision  that  is  attacked  by  th€)  ap- 
pellant is,  therefore,  not  separable  from  the 
residue  of  the  statute ;  hence,  if  such  provi- 
sion be  unconstitutional  the  statute  is  in- 
valid and  the  election  held  under  it  is  Inca- 
pable of  affording  a  de  Jure  title  to  any  of 
tbe  candidates  thereat,  including  the  appel- 
lant 

True  it  is -that  the  respondent  and  the  oth- 
er de  facto  commissioners  might  not  be  di- 
rectly affected  by  such  a  Judicial  opinion. 
The  appellant,  however,  has  no  such  de  facto 
status,  he  is  a  private  citizen  claiming  a  de 
Jure  title  to  an  oflBce  by  force  of  an  election 
which,  if  his  argument  be  sound,  can  confer 
a  de  Jure  title  upon  no  one.  For  it  must  be 
remembered  that  the  title  of  tbe  relator  as 
well  as  that  of  the  respondent  is  at  issue. 
Lane  v.  Otis,  68  N.  J.  Law,  656,  54  Atl.  442. 

In  the  proceeding  which  the  appellant  has 
Instituted  In  his  own  right  against  the  re- 
spondent, tbe  very  rights  of  both  parties  are 
drawn  into  question.  Manahau  v.  Watts,  64 
K  J.  Law,  465,  45  Atl.  813. 

This  being  so,  to  what  end  should  a  court 
consider  and  decide  a  constitutional  question, 
which,  if  decided  as  the  appellant  argues  it 
should  be,  would  be  of  no  avail  to  him  as  a 
suitor?  The  charge  of  the  Information  is 
that  the  de  facto  tenure  of  the  respondent  ex- 
cludes the  appellant  from  an  office  to  which 
he  has  the  de  Jure  title.  It  we  cannot  ad- 
judge the  latter,  an  adjudication  of  the  for- 
mer would  be  of  no  avail  to  this  private  rela- 
tor. If  the  192  ballots  on  which  the  title  of 
the  appellant  rests  were  improperly  rejected, 
because  of  the  compulsory  provision  of  the 
statute  as  to  first  choice  under  whidi  tbe 
election  was  held,  and  If  such  compulsion 
renders  tbe  statute  unconstitutional,  then  the 
remaining  4,293  votes  on  which  the  appellant 
bases  his  title  were  cast  under  a  like  com- 
pulsion, and  were  tor  a  like  reason  incapable 
of  affording  valid  evidence  of  a  de  Jure  title. 

In  fine,  if  the  statute  be  Invalid  because 
of  the  compulsory  feature  It  brought  to  bear 
upon  all  the  electors,  it  is  equally  invalid  as 
to  those  who  yielded  to  such  compulsion  as  it 
is  to  those  who  stood  out  against  It.  So  that, 
adopting  the  appellant's  illustration,  every 
one  of  such  4,293  ballots  cast  for  him  may 
have  been  so  cast  because  of  such  compul- 
sion. If  this  be  too  extreme,  still  it  Is  at 
least  true  that  we  have  no  way  of  knowing 
how  many  ballots  were  cast  for  the  relator 
because  of  tbe  invalid  provision  of  the  stat- 
ute. 

To  take  another  Illustration  from  tbe  ap- 
pellant's brief: 


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101  ATLAJSTTIC  REPORTER 


{N.J. 


"In  the  Bayonne  election  there  were  but  13 
candidates.  Who  can  say  whether  or  not  voters 
were  not  disfranchised  by  being  compelled  to 
vote  for  at  least  5  or  not  at  all." 

Ix)ok  at  It  as  we  may,  an  Invalid  election 
cannot  Invest  the  appellant  with  a  de  Jure 
title. 

[2]  To  sum  the  matter  up  In  a  single  sen- 
tence: In  quo  warranto,  when  a  defeated 
candidate  for  an  elective  oflBce,  In  order  to 
obtain  a  judicial  determination  that  he  re- 
ceived a  plurality  of  the  ballots  cast  at  an 
election,  seeks  a  decision  as  to  the  unconstitu- 
tionality of  the  statute  under  which  the  elec- 
tion was  held,  which  is  fatal  to  his  de  jure 
title  to  the  office,  the  court,  In  view  of  the 
futility  of  deciding  the  question,  will  decline 
to  pass  upon  It. 

The  redress  songht  by  the  appellant  as  a 
private  relator  has  two  aspects  which  are  In- 
terrelated, viz.,  that  the  respondent  should  be 
ousted  from  his  office  In  order  that  the  appel- 
lant be  Installed  therein,  which  would  not  be 
effected  by  a  decision  that  the  act  of  1914 
was  nncon.stltutlonal. 

A  decision  that  cannot  affect  the  litigants 
liefore  the  court  ought  not  to  be  made,  and  If 
it  ought  not  to  be  made,  It  need  not  be  con- 
sidered especially  In  view  of  what  was  said 
by  this  court  in  Devlin  v.  Wilson,  88  N.  J. 
Law,  180,  96  Atl.  42. 

Having  thus  reached  the  conclusion  that, 
upon  no  ground  that  Is  available  to  the  ap- 
pellant, is  any  legal  error  shown  In  the  action 
of  the  court  below,  the  judgment  of  the  Su- 
preme Court  Is  affirmed. 


<S7  N.  J.  Bq.  (SO) 

BRINK  v.  FLANNAGAN.     (No.  186.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

(St/llabus  bu  the  Court.) 

JCDOUENT    fi=»779(2)— T-IEN— Statutb. 

A  judgment  in  attncbmcnt  nnder  the  net  of 
1901  (1  Comp.  St.  1910,  p.  132),  is  ineffective 
as  a  lien  against  land  conveyed  by  bona  fide 
unrecorded  deed  made  and  delivered  prior  to  the 
issue  of  the  writ  of  attachment. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
C«nt  Dig.  {  1342.] 

Appeal  from  Court  of  Chancery. 

In  the  matter  of  condemnation  of  lands 
for  school  purposes  In  the  Township  of  Hill- 
side; Iveander  Brink  and  Dallas  Flannagan, 
claimants  of  proceeds.  From  a  decree  of  the 
Court  of  Chancery  for  Flannagan,  Brink  ap- 
peals.   Reversed,  with  instructions. 

William  R.  Wilson,  of  KllzalMJth,  for  ap- 
pellant Vail  &  McLean,  of  Elizabeth,  for 
appellee. 

PARKER,  J.  The  controversy  is  over  the 
proceeds  of  lands  taken  In  condemnation  pro- 
ceedings, which  proceeds  were  paid  into  the 
Court  of  Chancery  pursuant  to  the  statute. 
Flainiagnn  claims  them  under  a  Judgment  In 


an  attachment  suit  against  one  McKooa,  a 
former  owner;  Brink  claims  as  holder  of  the 
title  under  McKoon  by  mesne  conveyances. 

The  attachment  was  never  executed 
against  the  lands  in  question.  It  was  sued 
out  of  the  Supreme  Court  in  1903,  and  writ 
issued  to  other  comities,  but  not  to  Union 
county,  where  these  lands  are  situate.  Some 
two  years  before,  in  1901,  McKoon  had  con- 
veyed the  lands  to  one  Decker,  under  whom 
Brink  claims.  The  deed  to  Decker  was  not 
recorded  until  1910.  Meanwhile  Flannagan 
went  on  with  his  attachment  suit  and  enter- 
ed judgment  therein  on  November  23,  1904. 
He  does  not  seem  to  have  discovered  the 
Union  county  lands  until  about  1914,  when  he 
applied  to  the  Supreme  Court  to  amend  the 
return  by  including  them  in  the  attachment; 
but  this  application  was  denied,  on  the 
ground  that  after  judgment  it  came  too  late. 
The  court  intimated  that  the  judgment  It- 
self was  a  lien  on  these  lands,  and  this  no 
doubt  was  the  basis  of  the  decision  in  the 
Court  of  Chancery  that  Flannagan,  the  at- 
taching creditor,  was  entitled  to  the  money. 

We  think  that  this  ruling  disregarded  the 
language  of  the  statute,  which  says  (section 
8,  C.  S.  p.  13S)  that  "the  judgment  Is  a  lien  on 
the  defendant's  lands  acquired  either  before 
or  after  the  entry  thereof."  To  the  inquiry 
whether  these  lands  were  "defendant's  lands" 
at  any  time  during  the  prog;ress  of  the  attach- 
ment suit  we  answer  that  the  case  plainly 
shows  that  they  were  not,  for  they  were  con- 
veyed away  two  years  before  it  was  begun, 
and  there  is  no  Intimation  that  the  convey- 
ance was  not  a  bona  fide  one.  The  master, 
in  his  report  to  the  Chancellor,  puts  the  alleg- 
ed lien  of  the  Judgment  upon  the  ground  that 
the  deed  had  not  been  recorded.  This  would 
be  correct  in  the  case  of  a  general  Judgment 
in  a  suit  begun  by  personal  process,  but  in 
attachment  the  language  of  the  act  Is  differ- 
ent, as  we  have  seen. 

In  Garwood  v.  Garwood,  9  N.  J.  Law,  193, 
the  question  was  whether  a  writ  of  attach- 
ment bound  land  that  had  been  conveyed  by 
unrecorded  deed,  under  a  statute  that  pro- 
vided It  should  bind  the  property  and  estate 
of  the  defendant  from  the  time  of  executing 
the  same.  It  was  held  that  it  did  not.  A 
similar  question  arose  in  the  Court  of  Chan- 
cery touching  the  priority  of  the  writ  as  to 
a  mortgage.  Campion  v.  Kille,  14  N.  J.  Eq. 
229,  affirmed  in  this  court  15  N.  J.  Eq.  476. 
The  statutes  are  in  pari  materia,  and  we  see 
no  reason  to  depart  from  decisions  which 
have  stood  so  long  unquestioned.  It  Is  true 
that  there  is  in  both  cases  cited  an  intima- 
tion of  a  different  result  If  a  Judgment  were 
In  question;  but  these  intimations  were  obi- 
ter, and  predicated  on  the  language  of  the 
conveyance  act,  which,  if  Inconsistent  with 
the  attachment  act  of  1901,  must  be  deemed 
superseded  thereby. 

Our  conclusion  Is  that  a  Judgment  in  at- 


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DARVILI/E  ▼.  BOARD  OF  CHOSEN  FREEHOLDERS 


275 


tachment  under  the  act  of  1901  Ig  ineffectlTe 
as  a  Hen  against  land  conveyed  by  bona  fide 
unrecorded  deed  made  and  delivered  prior  to 
the  Issue  of  the  writ  of  attachment  The  de- 
cree of  the  Court  of  C!hancery  will  be  re- 
versed, with  instruction  to  award  the  fund  In 
question  to  the  holder  of  the  title  conveyed 
by  McKoon  to  Decker. 


(90  N.  J.  Law.  617) 

DARVIIXB  V.  BOARD  OF  CHOSEN  FREE- 
HOLDERS OF  ESSEX  COUNTY. 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(Syttaltta  hy  the  Cottrt.) 

Bridoxs  «=>46(8)— Detkctivk  Bq^dob— Lia- 
bility— Question  fob  Jubt. 
The  plaintiff  having  fallen  from  a  county 
bridge,  by  reason  of  the  ^ving  way  of  an  iron 
rail,  and  there  being  testimony  from  which  the 
jnry  might  infer  negligence  of  the  defendant,  in 
the  performance  of  its  statutory  duty  of  main- 
tenance and  repair,  as  well  as  the  question  of 
tho  defendant's  ownership  of  the  rail,  and  of 
the  locus  in  quOj  and  also  testimony  from  which 
an  inference  might  reasonably  he  drawn,  that 
tl)e  defendant  assumed  responsibility  and  exer- 
cised control  over  the  rail  in  question,  held,  that 
a  motion  to  nonsuit  as  well  as  a  motion  to  di- 
rect a  verdict  were  properly  refused. 

[Ed.  Note. — For  other  cases,  see  Bridges, 
Cent.  Dig.  i  120.] 

Appeal  from  Circuit  Court,  Eissez  County. 

Action  by  James  Darvllle  against  the  Board 
of  Chosen  Freeholders  of  the  County  of  Es- 
sex. From  the  denial  of  its  motions  to  non- 
suit and  to  direct  a  verdict,  defendant  ap- 
peals.   Afllrmed. 

Harold  A.  Miller,  of  Newark,  for  appellant 
Hugh  B.  Reed,  of  Newark,  for  appellee. 

MINTURN,  J.  The  plaintiff  was  Injured 
by  falling  from  the  entrance  to  a  public 
bridge,  crossing  Third  river  at  Nutley,  In  the 
count}'  of  Essex.  The  cause  of  his  fall  he 
attributes  to  the  negligence  of  the  defendant 
in  failing  to  use  reasonable  care  to  keep  the 
rail  or  guard  of  the  approach  to  the  bridge 
in  a  reasonably  safe  condition.  The  plaintiff 
fell  while  attempting  to  lean  upon  an  Iron 
guard  rail  which  ran  from  the  bridge  at  right 
angles,  to  an  adjacent  blacksmith  shop,  out 
of  which  the  plaintiff  came  and  proceeded  to 
cross  the  bridge.  While  he  was  stopping  to 
answer  the  salutation  of  a  friend,  he  placed 
bis  band  and  weight  upon  the  rail,  when  it 
gave  way  and  precipitated  him  ten  feet  to 
the  bed  of  the  stream,  producing  the  injuries 
which  present  the  basis  of  this  suit 

The  defendant  denies  responsibility,  Insist- 
ing that  the  rail  In  question  was  not  placed 
there  by  the  county,  and  that  at  the  time  of 
the  Injury  the  plaintiff  was  not  upon  the 
public  thoroughfare,  but  was  upon  private 
property  adjoining  the  bridge,  upon  which 
was  the  rail,  and  that  therefore  the  county 
was  under  no  legal  liability  to  maintain  or 
repair  It     The  alleged  contributory  negli- 


gence of  the  plaintiff,  under  the  circumstanc- 
es, presented  the  final  ground  of  defense. 
These  Issues  the  trial  court  treated  as  Jury 
questions,  and  refused  a  motion  to  nonsuit, 
and  to  direct  a  verdict  based  thereon. 

There  was  testimony  sufficient  In  the  case 
from  which  a  Jury  might  infer  that  the  coun- 
ty at  the  time  the  bridge  was  erected  con- 
structed the  rail  in  question.  There  was 
testimony  also  from  which  a  Jury  might  con- 
clude that  the  county,  recognizing  Its  respon- 
sibility for  the  maintenance  of  the  rail,  bad 
at  least  dx  months  prior  to  the  acddent 
caused  the  roll,  with  the  rest  of  the  struc- 
ture, to  be  painted,  and  that  after  the  acci- 
dent the  county  engineer  ordered  the  rail  re- 
paired. The  latter  fact,  while  not  directly 
evidential  of  liability,  might  be  accepted  as 
a  recognition  or  admission  by  the  defendant 
of  the  extent  of  the  defendant's  ownership 
or  control  of  the  ralL  These  facts  were  met 
by  counter  evidence  from  which  the  Jury 
might  infer  the  absence  of  either  ownership 
or  maintenance  upon  the  part  of  the  defend- 
ant and  some  testimony  from  which  It  was 
argued  that  the  locus  in  quo,  upon  which  the 
plaintiff  stood  at  the  time  of  his  fall,  was 
private  property,  over  which  the  defendant 
could  not  legally  exercise  any  act  of  control 
or  ownership. 

These  questions  manifestly  presented  a 
Jury  question,  involving  as  they  did  inquiries 
as  to  questions  of  fact,  and  not  of  law,  and 
In  leaving  them  to  the  Jury  the  rule  Is  com- 
monplace that  the  trial  court  committed  no 
legal  error.  The  production  by  the  defend- 
ant of  the  plans  for  the  construction  of  the 
bridge  might  have  thrown  light  upon  the 
question  of  the  original  construction,  and 
have  shown  the  presence  or  absence  of  the 
rail  In  question,  but  the  failure  to  produce  It 
left  the  question  open,  assuming  the  locus  in 
quo  to  be  private  property,  whether  during 
an  Interim  of  years  since  the  original  con- 
Btructlon,  the  defendant  may  not  have  as- 
sumed, the  added  responsibility,  and  imposed 
the  corresponding  liability  upon  itself  by  ac- 
cepting permission,  tantamount  to  a  license 
from  the  adjoining  landowner,  to  keep  and 
maintain  the  rail  as  part  of  the  structure,  a 
legal  status  which  the  Jury  might  reasonably 
infer  in  fact  existed  in  view  of  the  acts  of 
supervision  and  maintenance,  which  the 
proof  showed  the  defendant  exercised  over 
the  entire  structure. 

The  liability  of  defendant  being  entirely 
statutory  (P.  L.  1860,  p.  285;  C.  S.  p.  .<{04,  i 
0;  Maguth  v.  Freeholders  of  Passaic,  72  N. 
J.  Law,  226,  62  Atl.  679;  Freeholders  of 
Sussex  V.  Strader,  18  N.  J.  Law,  108,  35  Am. 
Dec.  530),  the  trial  court  properly  left  these 
questions  to  the  jury,  premising  its  comments 
upon  the  situation,  with  the  fundamental  con- 
siderations that  the  defendant's  liability  was 
conditioned  upon  their  answer  to  the  Inquiries 
whether  the  rail  in  question  was  part  of  the 


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101  ATLANTIC  REPORTER 


(N.J. 


bridge,  and  whether  the  plaintUT  at  the  time 
of  the  accident  was  upon  defendant's  proper- 
ty or  upon  private  property,  over  which  the 
defendant  assumed  no  responalblUty  and  ex- 
ercised no  control. 

The  charge  of  the  trial  court,  and  its  rul- 
ings upon  testimony,  were  In  consonance 
with  these  principles  of  liability,  and  the 
Judgment  will  therefore  be  affirmed. 

(87  N.  J.  Bq.  596) 

FIRST  NAT.  BANK  OF  HOTTTZDALB,  PA., 

V.  PARKER  et  al.    (No.  25.) 

(CJoort  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(BvUahut  by  tlt«  Court.) 

Bquttt  «=>43  —  JvBisDionoN  —  Rkhedt  at 

LikW. 
A  court  of  equity,  when  its  remedial  juris- 
diction is  invoked  in  aid  of  or  in  lieu  of  an  ac- 
tion at  law,  will  examine,  not  only  the  transac- 
tion in  question,  bat  the  relations  of  the  parties, 
and  all  of  the  surrounding  circumstances,  to 
the  end  that,  if  there  is  a  well-grounded  sus- 
picion of  fraud  or  deception,  it  may  withhold 
Its  aid  and  leave  the  complainant  to  his  legal 
remedy. 

[EM.  Note. — For  other  cases,  see  Equity,  Gent 
Dig.  SS  121-140,  164-166.) 

Swayze,  J.,  dissenting. 

Appeal  from  Court  of  Chancery. 

BUI  of  complaint  by  the  First  National 
Bank  of  Houtzdale,  Pa.,  against  Thomas  B. 
Parker  and  others.  From  a  decree  of  the 
Court  of  Cba&ceiy,  complainant  appeals.  Af- 
firmed. 

John  D.  McMulIln,  of  Moorestown,  for  ap- 
pellant. George  J.  Bergen,  of  Camden,  for 
appellees. 

GARRISON,  J.  The  Mil  of  complaint  la 
exhibited  to  collect  a  Judgment  at  law  out  of 
a  fund  placed  In  trust  for  his  own  use  by  the 
Judgment  debtor.  Such  a  bill  will  lie  to  pre- 
vent a  fraud  upon  bona  fide  creditors.  Stat- 
ute of  Frauds,  i  11  (Comp.  St.  1010,  p.  2617) ; 
Chancery  Act  (Act  April  3,  1902  [P.  L.  p. 
534])   i  70. 

Upon  three  previons  occasions  similar  Mils 
were  filed  by  the  same  complainant,  who  In 
each  case  obtained  the  relief  prayed  for. 
Upon  the  flUng  of  this  fourth  bill  the  Vice 
Chancellor,  who  heard  the  cause  and  who 
had  made  the  previous  decrees,  became  con- 
vinced that  the  statutes  of  this  state  were 
being  used,  not  to  protect  a  bona  fide  cred- 
itor of  the  settlor  of  the  trust,  but  to  en- 
able such  settlor  to  do  what  he  could  not  law- 
fully do,  viz.,  to  regain  the  corpus  of  the 
trust  fund.  Some  of  the  reasons  that  led 
tile  Vice  Chancellor  to  this  conclusion  were 
stated  by  him  to  counsel  upon  the  argument 
as  follows: 

"When  on  three  snccessivp  occasions,  namely, 
in  1910,  1912,  and  1914,  Mr.  Parker  has  bor- 
rowed on  the  dates  named,  respectively,  $10,- 
000.  $12,000,  and  $13,000  in  the  same  manner, 
and  on  each  occasion  the  bank  has  been  obliged 


to  resort  for  the  collection  of  the  loans  to 
the  same  method  now  pursued,  namely,  a  judg- 
ment in  New  Jersey,  personal  service  upon  Mr. 
Parker  out  of  his  own  state,  in  the  New  Jersey 
lawsuit,  service  which  it  is  reasonably  appar- 
ent is  made  possible  by  Mr.  Parker  for  the  con- 
venience of  the  bank,  then  a  bill  in  equity  in 
New  Jersey  identical  with  the  present  bill, 
with  personal  service  on  Mr.  Parker  procured 
in  the  same  way,  is  not  the  bank  ctmrgeable 
with  knowledge  of  circumstances  that  make  it 
impossible  to  escape  the  conclusion  that  when 
they  make  the  fourth  loan  in  the  same  manner 
tbcy  are  simply  making  themselves  the  instru- 
ment for  Mr.  Parker  to  accomplish  indirectly 
what  he  cannot  accomplish  directly?" 

The  fact  that  these  remarks  were  made  to 
counsel  while  the  trial  was  still  In  progress 
has  a  marked  significance  upon  the  bona 
fides  of  the  complainant  Such  a  statement 
by  the  court  while  the  case  was  still  open 
afforded  an  opportunity,  If  it  did  not  amount 
to  an  Invitation,  to  the  complainant  to  oCTer 
proof  of  any  fttcts  that  would  tend  to  rebut 
the  Impression  the  Vice  Chancellor  had  form- 
ed as  to  the  collusive  character  of  the  suit 
That  no  such  proof  was  offered  is  practically 
tantamount  to  an  admission  that  no  such 
facts  existed. 

The  Vice  Chancellor  had,  moreover,  the 
advantages  of  the  familiarity  with  the  case 
gathered  in  previous  litigations,  and  of  the 
presence  before  him  of  the  witnesses.  With- 
out these  advantages,  we  are  in  danger  of 
dealing  with  the  case  upon  mere  legal  ab- 
stractions; whereas  he  dealt  with  it  as  the 
practical  application  of  an  equitable  remedy 
to  the  given  case. 

In  his  final  conclusions  the  Vice  Chancel- 
lor, referring  to  the  previous  litigation,  said ; 

"In  that  litigation  complainant  became  fully 
apprised  of  the  fact  that  the  trust  was  void  only 
as  to  bona  fide  creditors  of  Parker,  and  that 
Parker  could  not  in  his  own  behalf  recover  from 
the  trust  company  the  principal  of  the  trust 
funds.  Tbo  three  sul>s^uent  loans  made  by 
complainant  to  Parker,  and  the  proceedings 
taken  in  each  instance  by  complainant  for  re- 
covery from  the  trust  company  of  the  money 
so  loaned,  render  it  impossible  to  escape  the 
conclusion  that  In  making  the  loan  here  in  ques- 
tion complainant  deliberately  and  knowingly 
constituted  itself  an  agency  to  enable  Parker  to 
regain  control  of  his  property.  The  circum- 
stance that  complainant  actually  advanced  mon- 
ey and  sought  to  make  a  profit  for  itself  is  im- 
material. The  practical  status  which  complain- 
ant has  deliberately  assumed  is  that  of  a  per- 
manent conduit  between  Parker  and  the  trust 
company  from  which  Parker  may  draw  funds 
at  pleasure.  Complainant  has  constituted  it- 
self a  creditor  for  the  sole  and  definite  purpose 
of  appropriating  to  itself  tho  superior  bene- 
fits of  that  status.  Creditors'  rights  which  ap- 
peal to  equitable  protection  are  of  an  inherent- 
ly different  quality.  •  •  •  I  am  fully  con- 
vinced that  this  court  cannot  be  properly  made 
the  involuntary  machinery  for  carrying  out  au 
arrangement  of  that  nature  for  tho  ultimate 
benefit   of   Parker." 

We  fully  concur  In  the  conclusions  thus 
reached  by  the  learned  Vice  Chancellor,  and  In 
the  consequent  dlsiuissal  of  the  complainants* 
bill  which  may  well  be  rested  upon  a  well- 
grounded  suspicion  that  a  collusive  deception 


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277 


was  being  systematically  practiced  upon  the 
court  of  equity  In  order  to  obtain  for  one  pur- 
pose the  extraordinary  aid  it  accords  only  for 
a  totally  different  purpose. 

A  positive  demonstration  of  actual  fraud  Is 
not  necessary.  In  the  well-considered  opinion 
in  the  case  of  Worth  t.  Watts,  76  N.  J.  Bq. 
290,  74  AtL  434,  Mr.  Justice  Parker  points 
out  that,  when  parties  having  a  right  of  ac- 
tion at  law  seek  the  aid  of  a  court  of  equity, 
8a«^  court  will  examine  not  only  the  trans- 
action in  question,  but  the  relations  of  the 
parties  and  all  of  the  surrounding  circum- 
stances, to  the  end  that,  if  "an  atmosphere  of 
suspicion  surrounds  and  permeates  the  whole 
case,"  a  court  of  equity  will  refuse  its  extraor- 
dinary relief  and  leave  the  complainant  to 
his  legal  remedy.    That  is  this  case. 

The  circumstance  that  In  the  case  just 
dted  the  same  Vice  Chancellor  sat  below 
gives  concrete  emphasis  to  the  fact  that 
"stare  decisis"  Is  only  a  more  technical  term 
for  Judicial  consistency. 

The  decree  of  the  Court  of  Chancery  Is  af- 
firmed. 

SWAYZi:,  J.  (dissenting).  The  trust  in 
tbls  case  was  created  by  Parker  himself.  As 
soon  as  he  attained  his  majority  he  assigned 
securities  amounting  to  more  than  |160,000  to 
his  mother,  and  she  Immediately  assigned 
them  to  the  Camden  Safe  Deposit  &  Trust 
Company.  The  declaration  of  trust  provides 
tbat  the  income  shall  be  paid  to  Parker  dur- 
ing bis  life  for  his  sole  and  separata  use,  so 
that  the  same  &hall  not  be  liable  to  or  for  his 
debts  and  contracts,  or  for  debts  or  contracts 
or  under  the  control  of  any  other  person. 
Immediately  after  his  death  the  property  is 
to  be  assigned  to  su<^  person  and  for  such 
uses  as  he  shall  by  will  appoint ;  in  default 
of  a  wUl,  to  his  mother,  if  living,  freed  and 
discharged  of  the  trust,  but  if  she  die  before 
Parker,  then  to  such  person  as  she  may  by 
will  appoint,  and  In  default  thereof  to  such 
persons  as  would  l>e  entitled  under  the  laws 
of  Pennsylvania  to  the  estate  of  Parker.  A 
right  is  reserved  to  Parker,  with  the  consent 
of  bis.  mother,  if  living,  to  revoke  the  trust, 
and  to  Parker  alone  to  revoke  it  after  his 
mother's  death.  She  died  in  1901.  The  trust 
was  made  Irrevocable  Just  before  her  death 
by  consent  of  her  and  Parker.  The  deed  of 
trust  is  clearly  void  as  to  creditors  under  sec- 
tion 11  of  the  statute  of  frauds  (C.  S.  2617), 
because  made  In  trust  for  the  use  of  the  per- 
son making  the  same,  and  also  because  on  Us 
face  it  shows  an  intent  to  defraud  future 
creditors.  The  case  comes  also  within  sec- 
tion 70  of  the  Chancery  Act,  subjecting  to  the 
rights  of  creditors  moneys  held  in  trust  where 
tbe  trust  has  been  created  by  the  Judgment 
debtor  himself.  It  does  not  come  within  the 
mle  of  Rnckman  v.  Conovcr,  37  N.  J.  Eq.  583, 
and  Wlnans  v.  Graves,  43  N.  J.  Bq.  263,  11 
AtL  25,  to  which  the  Vice  Chancellor  appeals. 


In  those  cases  the  rights  of  third  parties  were 
Involved.  So  much  tbe  court  now  concedes. 
No  one  is  interested  in  tbe  fund  except  Par- 
ker himself.  No  one  opposes  the  complain- 
ant's recovery  of  Its  money,  except  the  trust 
company,  which  has  no  beneficial  Interest  in 
the  fund,  except  possibly  commissions  to  be 
earned.  Parker  has  apparently  done  all  be 
could  to  secure  the  complainant  its  money, 
except  to  make  a  binding  agreement  to  exe- 
cute his  power  of  appointment  In  favor  of 
his  creditor,  which  he  can  do,  if  It  be  neces- 
sary. The  question,  therefore,  resolves  itself 
into  whether  be  is  to  be  prevented,  in  spite 
of  himself,  from  securing  payment  of  bis 
debts  by  a  Judgment,  execution,  and  proceed- 
ings in  chancery  supplementary  thereto.  The 
case  goes  further  than  to  protect  the  corpus 
of  the  fund.  The  bill  is  dismissed,  and  the 
complainant  is  thereby  derived  of  its  ren> 
edy,  even  against  the  income  of  tbe  fund 
wliich  is  clearly  Parker's  absolute  property, 
and  is  probably  la  excess  of  the  $4,000,  men- 
tioned in  the  statute.  C.  S.  2254,  30A;  P.  L. 
1880,  p.  274. 

We  have  not  heretofore  adopted  In  this 
state  the  doctrine  of  "spendthrift  trusts,"  and 
our  Legislature  has  evinced  hostility  to  them 
by  subjecting  Income  in  excess  of  $4,000  to 
supplementary  proceedings  at  law,  even 
where  the  trust  is  created  by  another.  We 
are  now  by  this  decision  going  far  beyond  any 
doctrine  of  spendthrift  trusts  that  has  ever 
come  under  my  notice.  And  we  are  doing  It 
without  any  evidence  that  Mr.  Parker  needs 
the  protection  of  tbe  court  as  be  certainly 
does  not  ask  for  It.  We  do  it  because,  with- 
out proof,  we  guess  that  a  man  who  borrows 
about  $10,000  a  year  and  chooses  to  pay  it 
out  of  a  fund  of  which  the  equitable  and  ben- 
eficial right  is  wholly  bis  own,  by  means  of 
Judgment  and  execution,  must  be  doing 
wrong,  and  without  evidence  we  attribute 
moral  delinquency  to  a  creditor  who  loans 
him  the  money  at  the  legal  rate  and  In  the 
ordinary  course  of  business.  There  Is  no  evi- 
dence as  to  Parker's  other  means  or  his  for- 
tune aside  from  the  trust  fund;  there  is  no 
evidence  as  to  his  need  of  the  money,  or  the 
use  he  made  of  it.  It  may  have  been  used  for 
a  highly  profitable  investment;  it  may  have 
been  used  to  discharge  debts  Incurred  by  blm 
of  the  highest  moral  obligation.  In  effect  we 
say  tbe  bank  was  right  in  loaning  him  $35,- 
000  in  four  years;  the  Court  of  Chancery  en- 
forced its  right  to  recover  out  of  this  fund 
three  different  times.  We  now  say  that  for 
it  to  loan  him  $13,000  in  tbe  fifth  year,  and 
to  attempt  to  recover  it  by  the  thrice  ap- 
proved method,  shows  that  It  la  guilty  of 
some  moral  delinquency;  that  its  hands  are 
unclean,  because  it  is  assisting  him  to  get 
control  of  his  own  property,  in  which  no  one 
else  has  any  beneficial  interest,  and  to  dis- 
charge that  prc^erty  of  a  trust  created  by 
himself  and  pronounced  void  by  statute.    If 


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278 


101  ATLANTIC  REPORTER 


(N.J. 


the  conrt  Is  correct,  tradesmen  who  supply 
him  with  the  means  of  Hying  must  be  llkewlso 
guilty  of  moral  delinquency  If  they  supply 
him  for  a  fifth  year,  after  having  enforced 
their  claim  for  four  years  out  of  this  fund. 
This  must  be  so,  since,  as  far  as  the  case 
shows,  the  money  loaned  by  the  bank  may 
have  been  loaned  for  the  express  purpose  of 
meeting  Parker's  legitimate  llTlng  expenses, 
which  may  not  have  been  extravagant  for 
one  of  his  means.  I  cannot  understand  on 
what  legal  principle  the  bank  can  have  Im- 
posed upon  It  the  duty  to  explain  what  be- 
comes of  the  money  It  loans.  The  Legislature 
has  recently  shown  a  desire  to  go  to  great 
lengths  to  assist  creditors  in  recovering  their 
debts.  A  worklngman's  wages  "due  and 
owing  •  •  •  or  •  •  •  thereafter  be- 
come due  and  owing"  may  be  sequestered.  P. 
L.  1915,  pp.  182,  470.  We  are  protecting  an 
income  on  a  trust  fund  in  excess  of  $100,000. 
created  by  the  debtor  himself  and  expressly 
declared  by  him  alone  not  to  be  "liable  to 
or  for  his  debts  and  contracts."  The  way  is 
made  easy  for  a  man  of  fortune  to  escape  the 
ordinary  obligation  to  pay  his  debts.  In  spite 
of  legislation  to  compel  him  to  pay.  I  confess 
I  cannot  follow  the  court's  reasoning.  I  pass 
over  the  question  that  might  well  be  raised 
as  to  the  estate  in  the  trust  fund  of  a  life 
tenant  with  an  al>solute  power  of  disposition 
by  wUl. 

(90  N.  J.  Law,  261) 

STATE  T.  HART.    (No.  7B.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  IS,  1917.) 

1.  (Triuinal  Law  $=>1090(1)  —  Bin.  or  Ex- 
ceptions—Right TO. 

Under  Cr.  Prac.  Act  (Revision  1877,  p.  284) 
{  91,  bills  of  exceptions  are  allowable  to  the 
defendant  for  trial  errors  on  the  trial  of  any 
indictment  in  any  court  for  any  crime  or  misde- 
meanor. 

2.  Cbxmtnal  Law  «=>1024(5)— Right  of  Rb- 
view— aoquittai.. 

Under  Const  1844,  art.  1,  par.  10,  providing 
that  no  person  shall,  alter  an  acquittal,  be  tried 
for  the  same  offense,  no  writ  of  error  will  lie 
in  a  criminal  case  in  favor  of  the  state  to 
review  a  judgment  of  acquittal. 

iiSd.  Note. — For  other  cases,  see  Oiminal 
I>aw,  Cent.  Dig.  {{  2604-2806.] 

3.  Cbiminal  Law  «=3l86— Fobueb  Jbofabdt. 

Under  Const.  1844,  art  1,  par.  10,  a  person 
cannot  bo  tried  a  second  time  for  the  same  of- 
fense after  he  has  been  acquitted  in  a  court 
having  jurisdiction  of  the  person  and  the  crime, 
even  though  acquittal  was  the  product  of  trial 
errors. 

[Ed.  Notei — ^For  other  cases,  see  Criminal 
Law,  (3ont.  Dig.  M  S12,  320,  345-361.] 

Error  to  Supreme  Court. 

Frederick  Hart  was  indicted  for  seduc- 
tion. The  trial  court  directed  the  Jury  to  ac- 
quit Iiim,  and  the  State  sued  out  a  writ  of 
error  in  the  Supreme  Conrt  (88  N.  J.  Law,  48, 
95  Atl.  756),  which  was  dismissed.  The 
State  brings  the  record  up  for  review  on  writ 
of  error  to  the  Supreme  Court    Affirmed. 


Martin  P.  Devlin,  of  Trenton,  for  tlie  State. 
William  J.  Crossley,  of  Trenton,  for  defend- 
ant in  error. 

KALISCH,  J.  Tlie  defendant  in  error  was 
indicted  for  seduction.  On  his  trial  in  the 
quarter  sessions  court  of  Meroer  county  the 
trial  judge  directed  the  jury  to  acquit  Iilm. 
The  state  sued  out  a  writ  of  error  in  the 
Supreme  Court  to  the  court  of  quarter  ses- 
sions, which  writ  was  dismissed  by  the  Su- 
preme Court  upon  the  ground  that  in  order 
for  the  state  to  secure  a  review  of  a  trial  er- 
ror, it  must  be  able  to  bare  a  Mil  of  excei>- 
tlons  and  a  writ  of  error  based  thereon  to 
remove  the  case  to  that  court,  and  since  the 
statute  makes  no  such  provision,  and  there 
being  no  such  practice  at  common  law  as  a 
writ  of  error  in  f&vor  of  the  crown  after  an 
acquittal  on  the  merits,  the  writ  was  im- 
properly sued  out  The  state  now  brings 
the  record  up  for  review  before  us  on  a  writ 
of  error  sued  out  of  this  court  to  the  Supreme 
Ck>urt  At  common  law  a  bill  of  exceptions 
was  not  allowable  in  a  criminal  case.  Error 
was  assignable  only  upon  the  record.  The 
bill  of  exceptions  Iiad  its  origin  in  the  Stat- 
ute Westm.  II,  13  Edw.  I,  c.  81. 

Tidd,  in  volume  2  on  Practice,  p.  911,  In 
commenting  on  this  statute,  says: 

"This  statute  extends  to  inferior  courts,  and 
to  trials  at  bar,  as  well  as  those  at  nisi  prins: 
but  it  has  been  doubted  whether  the  statute  ex- 
tends to  criminal  cases." 

In  King  V.  Archbishop  of  York,  Wllles' 
Rep.  5a3,  Lord  Chief  Justice  Wllles,  In  dis- 
cussing the  scope  of  chapter  31,  on  page  535 
says: 

"My  brother  Abney  cited  2  Inst.  424,  and 
Saville,  2,  where  it  was  holden  that  the  Stat- 
ute of  Westm,  II,  c.  30,  concerning  nisi  prius, 
does  not  extend  to  the  King,  and  that  although 
the  act  is  general,  yet  a  nisi  prius  cannot  be 
granted  where  the  King  is  a  party,  or  where 
the  matter  toucheth  the  ri^t  of  the  King, 
without  a  special  warrant  from  the  King  or  the 
consent  of  the  Attorney  General.  He  said  like- 
wise that  chapter  31  of  the  same  act.  concern- 
ing bills  of  exceptions,  was  never  thou^t  to 
extend  to  the  crown.  And  he  mentioned  some 
cases  where  such  pleas  had  been  denied,  and 
said  that  ho  thought  that  the  Stat  0  Anne,  c 
20,  extending  this  statute  to  writs  of  mandamus, 
etc.,  rather  strengthened  the  objection." 

In  2  Inst  427,  Lord  Coke  says: 
"This  act  doth  extend  as  well  to  the  demand- 
ant or  plaintiff  as  to  the  tenant  or  defendant  in 
all  actions  real,  personal  or  mixed." 

And  in  King  v.  The  Inhabitants  of  Preston, 
Rep.  temp.  Hardw.  249,  Lord  HardwicUe  on 
page  251,  on  an  information  in  the  Court  of 
Exchequer,  said  that  when  he  was  Attorney 
General  he  had  known  a  tAll  of  exceptions 
allowed,  "but  then,"  said  his  lordship,  "they 
are  properly  civil  suits  for  the  King's  debt, 
etc.  But  a  bill  of  exceptions  cannot  be  al- 
lowed by  the  justices  of  peace  at  the  quarter 
sessions  on  the  bearing  of  an  appeal  against 
an  order  of  removal." 

In  the  case  of  Sir  Henry  Vane,  1  Lev.  68, 
Kel.  15,  Sid.  85,  who  was  tried  for  high  trea- 


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STATE  T.  HABT 


279 


son,  the  conrt  refnsed  to  seal  a  bill  of  ex- 
ceptions, because,  they  said,  criminal  cases 
were  not  within  the  statute,  but  only  actions 
l>etween  party  and  party.  This  matter  Is 
fnlly  discussed  In  a  learned  and  exhaustive 
note  by  Mr.  Evans  in  volume  3  of  Evans' 
Statutes,  p.  341  et  seq.,  Ed.  of  1829.  On 
page  342  the  learned  commentator  says: 

"From  the  language  of  the  statute  itself,  I 
■certainly  should  not  infer  its  application  to 
<*riminal  cases.  •  •  ♦  The  general  feeling  of 
the  profession  upon  the  subject  is  most  strongly 
-evinced  by  the  fact  of  no  such  bill  of  exceptions 
having  been  tendered  for  a  very  long  period  of 
time,  although  many  Important  questions  of 
criminal  law  have  been  discussed  with  ^at 
warmth,  and  with  strong  feelings  of  opposition 
to  the  opinions  of  the  court  of  which  the  much 
agitated  question  of  the  functions  of  the  Jury 
in  cases  of  libel  previous  to  the  Statute  of 
Oeorge  III  is  perhaps  the  most  prominent  in- 
stance." 

Cbitty,  in  volume  1  of  his  excellent  treatise 
on  Criminal  Law,  on  page  508,  says: 

"When  an  exception  is  made  by  any  party  to 
a  witness  which  is  overruled  by  the  court,  the 
opposite  side  have,  at  leant  in  civil  proceedings, 
the  power  of  appealing  from  his  decision  by  ten- 
dering a  bill  of  exceptions.  This  document  the 
judge  must  in  dvil  cases  seal  by  virtue  of  13 
Edw.  1,  c.  31,  and  it  will  operate  hke  a  writ 
of  error.  But  It  seems  to  bo  the  better  opin- 
ion that  this  provision  does  not  extend  to  any 
criminal  case,  and  is  certainly  inadmissible  on 
indictments  for  treason  and  felony.  It  has  in- 
deed been  allowed  on  an  indictment  for  a  misde- 
meanor, but  the  propriety  of  this  allowance  has 
been  dispnijed." 

In  Alley ne's  Case,  Dearsley,  Cr.  Cases  Re- 
served, 1852-1866,  Lord  Campbell,  C.  J.,  on 
page  509,  says: 

"A  bill  of  exceptions  could  not  lie  for  the 
Statute  of  Westminster  II  is  confined  to  civil 
cases." 

Under  the  ancient  English  practice  trial 
errors  In  criminal  cases  were  reviewable  by 
the  taking  of  a  special  verdict  or  by  a  case 
reserved  which  Is  illustrated  by  the  follow- 
ing instances: 

In  King  v.  Hodgson  et  al.,  1  Leach's  Cr. 
Oases,  p.  6,  a  case  decided  in  1730,  there  was 
a  special  verdict  upon  an  Indictment  against 
several  defendants  Jointly  Indicted,  tried, 
and  convicted.  The  question  was  whether 
under  the  evidence  they  were  all  equally 
guilty.    The  report  of  the  case  states: 

"In  order  to  avoid  the  expense  which  attends 
the  drawing  and  arguing  a  special  verdict,  the 
counsel  agreed  to  submit  the  point  to  the  con- 
nideration  of  the  judges  in  the  shape  of  a  reserv- 
«d  case." 

In  Reg.  T.  Bernard,  1  F.  &  F.  Cr.  Cases, 
p.  252,  the  defendant's  attorney  submitted 
atrven  legal  questions  to  the  trial  court  to  be 
reserved,  the  seventh  of  which  was  concern- 
ing a  certain  letter  which  was  claimed  to 
hare  been  Improperly  received  in  evidence, 
upon  which  Lord  Campbell,  C.  3.,  sitting 
with  Pollock,  C.  B.,  Erie,  J.,  and  Crowder, 
J.,  nnd  a  Jury,  remarked: 

"There  appears  to  be  no  objection  of  reserving 
any  of  these  points  except  the  seventh :  but  that 
point,  as  you  must  be  awnrp,  was  argued  before 
US,  and  we  were  unanimously  of  the  opinion 
that  the  letter  was  admii^ible.    All  other  points 


which  you  have  raised  ar«  very  fit  indeed  for 
the  consideration  of  the  15  Judges." 

And  so  it  was  held  by  the  courts  of  the 
state  of  New  York  prior  to  the  passage  of  a 
statute  providing  for  bills  of  exceptions  in 
criminal  cases  that  no  bill  of  exceptions  conld 
be  taken  in  a  criminal  case.  People  v.  Hoi- 
brook,  13  Johns.  (N.  T.)  90 ;  People  v.  Vermil- 
yea,  7  Cow.  (N.  T.)  108;  ESx  parte  Barker, 
7  Cow.  (N.  T.)  143. 

A  consideration  of  the  history  of  the  origin 
and  development  of  bills  of  exceptions  In  this 
state  Is  highly  important  as  bearing  upon  the 
question  as  to  what  the  common  law  was  on 
the  subject  prior  to  the  Constitution  of  1770. 

The  first  act  relating  to  bills  of  exceptions 
was  passed  in  1797,  and  is  to  be  found  in  Pat- 
terson's Lews,  p.  245,  entitled  "An  act  di- 
recting bills  of  exceptions  to  be  sealed."  This 
act,  though  somewhat  narrower  in  its  terms 
than  the  English  parent  act  of  Westminster 
II,  in  that  the  New  Jersey  statute  contines 
its  operation  to  causes  where  a  writ  of  error 
lies  to  a  higher  court,  whereas  the  English 
statute  is  general  in  that  regard.  In  all 
other  respects,  however,  the  act  of  1797  is, 
in  substance,  a  copy  of  the  earlier  English 
statute. 

An  examination  of  the  early  reports  of 
criminal  cases  in  this  state  shows  an  absence 
of  bills  of  excei>tiou8  in  such  cases  until 
1849,  when  In  West  v.  State,  22  N.  J.  Law, 
212,  for  the  first  time,  ^manifestly,  in  a  crimi- 
nal case  under  review',  with  a  return  of  the 
record  came  a  bill  of  exceptions,  which  the 
reporter  says  was  signed  by  virtue  of  the  act 
of  1848. 

Looking  into  the  practice  which  prevailed 
In.  criminal  cases  In  this  state  prior  to  the 
passage  of  the  act  of  1848,  we  find  that  it  was 
analogous  to  the  practice  which  prevailed  In 
England  before  the  Bevolution  of  1776,  so 
far  as  it  was  consonant  with  our  changed 
form  of  government.  The  practice  was  for 
the  trial  Judge  or  court  to  take  a  special  ver- 
dict, reserving  the  questions  of  law  for  the 
opinion  of  the  Judges,  or  to  certify  a  stated 
case  asking  for  an  advisory  opinion.  See 
State  V.  GuUd,  10  N.  J.  Law,  175.  18  Am. 
Dec.  404. 

That  the  concensus  of  opinion  of  both 
beach  and  bar  of  this  state  was  that  the  act 
of  1797  did  not  provide  for  bills  of  exceptions 
In  criminal  cases  is  not  only  confirmed  by  the 
practice  above  alluded  to,  but  also  by  the 
statute  of  1848  (P.  L.  1848,  p.  226),  entitled 
"An  act  directing  bills  of  exceptions  to  be 
sealed  in  certain  criminal  cases." 

Section  1  of  this  act  declares: 

"Tbat  the  act  entitled  'An  act  directing  bills 
I  of  exceptions  to  be  sealed'  passed  March  7tb, 
1797,  and  each  and  every  of  the  provisions 
thereof,  shall  be  taken,  deemed,  and  adjudged 
to  extend  to  trials  of  indictments  for  crimes  and 
misdemeanors  which  by  law  are  punishable  by 
imprisonment  at  hard  labor." 

Section  2  of  the  act  provides  for  the  taking 
of  an  exception  on  the  trial  of  an  indictment 
for  any  crime  or  misdemeanor  Included  wlth- 


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101  ATLANTIC  REPORTER 


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In  the  provisions  of  the  first  section  of  the 
act,  and  for  the  return  of  the  bills  of  ex- 
ceptions, with  a  writ  of  error. 

In  1855  the  Legislature  by  an  act  entitled 
"A  supplement  to  an  act,  approved  April  the 
sixteenth,  1846,  and  entitled  'An  act  regulat- 
ing proceedings  and  trials  in  criminal  cases,' " 
declared  tliat  the  act  passed  In  1797  shall  be 
taken,  deemed,  and  adjudged  to  extend  to 
trials  of  Indictment  for  treason,  murder,  or 
other  crimes  punishable  with  death,  mis- 
prision of  treason,  manslaughter,  sodomy, 
rape,  arson,  burglary,  robbery,  forgery,  per- 
jury, and  subornation  of  perjury,  and  in  ex- 
press terms  repealed  the  act  of  1848.  P.  L. 
1855,  p.  648. 

It  is  obvious  that  the  effect  of  tills  declara- 
tion of  the  Legislature  and  the  repeal  of  the 
act  of  1848  precluded  the  taking  of  bills  of 
exceptions  in  cases  of  misdemeanor,  and  not 
mentioned  in  the  above  category  of  crimes. 

In  1863  the  Legislature,  after  declaring 
that  the  act  of  1797  shall  apply  to  criminal 
cases,  extended  the  right  to  a  bill  of  excep- 
tions on  the  trial  of  any  indictment  for  any 
crime  or  misdemeanor.  P.  L.  1863,  p.  811; 
Nixon's  Dig.  p.  228,  pars.  49,  90. 

[1]  By  section  90  of  the  Criminal  Practice 
Act  of  the  Revision  of  1877,  p.  284,  It  is  pro- 
vided that  sections  242,  243,  244,  245,  and 
246  of  the  act  entitled  "An  act  to  reg^ilate  the 
practice  of  courts  of  law"  shall  be  deemed 
taken  and  adjudged  to  extend  to  trials  of 
indictment  for  crimes  and  misdemeanors 
which  by  law  are  punishable  by  imprison- 
ment at  bard  labor.  This  obviously  left  all 
cases  of  misdemeanor  punishable  by  line 
only  or  by  imprisonment  only,  or  by  fine  and 
imprisonment,  without  the  benefit  of  bills  of 
exceptions.  But  by  a  later  statute  found  In 
the  Revision  of  1877,  p.  1298,  section  90  of 
the  Criminal  Practice  Act  was  repealed,  and 
section  91  of  the  same  act  was  amended, 
with  the  result  that  bills  of  exceptions  for 
trial  errors  are  allowable  "on  the  trial  of  any 
indictment  *  *  *  in  any  court  of  this 
state,  ft>r  any  crime  or  misdemeanor."  It  is 
to  be  noted  that  the  right  of  review  for  trial 
errors  on  bills  of  exceptions  in  criminal  cases 
is  given  by  the  statute  of  this  state  solely  to 
the  defendant. 

These  statutes  were  enacted  after  the 
adoption  of  the  Constitution  of  1844.  They 
essentially  broadened  the  operation  of  a  writ 
of  error  in  favor  of  a  person  convicted  of 
crime. 

In  view  of  the  constitutional  provision 
(article  1,  par.  10)  that  no  person  shall,  after 
an  acquittal,  be  tried  for  the  same  offense, 
it  Is  clear  that  it  is  not  within  the  constitu- 
tional power  of  legislative  authority  to  con- 
fer by  statute  any  such  right  on  the  state. 

It  is  no  answer  to  the  prosecutor's  claim  to 
the  right  to  review  a  trial  error  to  say  that, 
because  the  crown  at  common  law  was  not 
entitled  to  a  bill  of  exceptions  in  a  criminal 
case,  therefore  no  writ  of  error  would  lie  In 
its  behalt     For  it  has  already  been  suffi- 


ciently pointed  out  that  bills  of  exceptions 
In  criminal  cases  were  unknown  to  the 
common  law,  and  to  the  criminal  proce- 
dure of  this  state  until  the  statute  of 
1848.  But  as  to  the  right  of  the  crown  to 
a  writ  of  error  at  common  law  for  a  trial  er- 
ror in  a  criminal  case  there  seems  to  be  some 
diversity  of  opinion.  It  is  the  concensus  of 
Judicial  opinion  that  the  sole  function  of  a 
writ  of  error  at  common  law  was  to  bring  up 
for  review  errors  appearing  on  the  face  of  the 
record.  In  Rex  v.  Wilkes,  4  Burr.  2650, 
Lord  Mansfield,  Inter  alia,  said: 

"Till  the  third  of  Queen  Anne,  a  writ  of  error 
in  any  criminal  case  was  held  to  be  merely  ex 
gratia.  •  •  •  But  in  the  third  of  Queen 
Anne  ton  judges  were  of  the  opinion  that  in  all 
cases  under  treason  and  felony,  a  writ  of  error 
was  not  merely  of  grace,  but  ought  to  be 
grranted." 

"It  cannot  issue  now  without  a  fiat  from  the 
Attorney  General,  who  always  examines  wheth- 
er it  bo  sought  merely  for  delay  or  upon  a  prob- 
able error.  *  *  *  In  a  misdemeanor,  if 
there  be  a  probable  cause,  it  ought  not  to  be  de- 
nied; tliis  court  would  order  the  Attorney 
General  to  grant  his  fiat.  But,  be  the  error  ever 
so  manifest  in  treason  or  felony,  the  King's 
pleasure  to  deny  the  writ  is  conclusive." 

The  beadnote  to  the  case  Re  Plgott,  de- 
cided In  1868, 11  Cox,  Cr.  Cas.  p.  311,  reads: 

"The  granting  of  a  writ  of  error  is  part  of 
the  prerogative  of  the  crown.  If,  therofore,  the 
Attorney  General  ot  Kngland  or  the  Lord  Lieu- 
tenant of  Ireland  refuse  to  grant  it,  the  Lord 
Chancellor  has  no  jurisdiction  to  review  that 
decision." 

Bishop,  in  the  second  edition  of  his  valu- 
able treatise  on  Criminal  Procedure  (volume 
1,  1 1191),  In  commenting  on  the  English  prac- 
tice relating  to  the  writ  of  error,  says: 

"It  never  was  granted  except  when  the  King, 
from  justice  when  there  really  was  error,  or 
from  favor  where  there  waa  no  error,  was  will- 
ing the  judgment  should  be  reversed.  After 
writ  of  error  grantod,  the  Attorney  General 
never  made  any  opposition  because  either  he  had 
certified  there  was  error  and  then  he  could  not 
argue  against  his  own  certificate,  or  the  crown 
meant  to  show  favor,  and  then  he  had  orders 
not  to  oppose.  The  King,  woo  alone  was  con- 
cerned as  prosecutor,  and  who  had  the  absidute 
power  of  pardon,  having  thus  expressed  his 
willingness  that  the  judgment  should  be  revers- 
ed, the  Court  of  King's  Bench  reversed  it  upon 
very  slight  and  trivial  objections,  which  could 
not  have  prevailed  if  any  opposition  had  been 
made,  or  if  the  precedent  had  been  of  any  con- 
sequence." 

But  enough  has  been  said  to  demonstrate 
that  a  writ  of  error  even  in  a  case  of  misde- 
meanor did  not,  under  the  English  practice, 
issue,  as  a  matter  of  course,  upon  the  applica- 
tion of  a  convicted  defendant,  and  that  the 
writ  was  resorted  to  by  the  crown  to  show 
favor  to  the  convicted  person  and  to  brins 
about  a  reversal  of  the  Judgment  agrainst  him. 
Singularly  enough  it  does  not  appear  that 
the  writ  was  ever  used  by  the  Attorney  Gen- 
eral to  reverse  a  Judgment  of  acquittal  until 
the  cases  of  Reglna  v.  MUls,  10  CL  &  F.  634. 
decided  in  1843,  Reglna  v.  Chadwlck,  11  Q.  B. 
205,  decided  In  1846,  and  Reglna  v.  Houston, 
2  Craw.  &  IMx,  191,  the  latter  case  being  a 
Judgment  on  demurrer  In  favor  of  the  def«id- 


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N.  JJ       STANDARD  GAS  POWER  COBP.  t.  NEW  ENGLAND  CASUALTY  CO.        281 


ant.  In  none  of  these  cases  was  the  ques- 
tion raised  as  to  the  right  of  the  Attorney 
Oeneral  to  take  the  writ  And  because  of 
this  situation  counsel  for  the  state  argues 
that  It  must  be  accepted  as  a  fact  that  the 
right  of  the  crown  to  take  the  writ  In  case  cl 
An  acquittal  is  Indisputable. 

To  a  similar  contention  of  counsel  made  In 
People  7.  Coming,  2  N.  T.  9,  49  Am.  Deo, 
364,  dealing  with  the  precise  question  under 
discussion,  the  Court  of  Appeals,  through 
Bronson,  J.  (2  N.  T.  on  page  17,  49  Am.  Dec. 
364),  said: 

"The  woig-ht  of  authority  seems  to  be  against 
the  right  of  the  goTemment  to  bring  error  in  a 
criminal  case.  The  absence  of  any  precedent 
for  it,  either  here  or  in  England,  unul  within 
A.  very  recent  period,  fully  coanterbalanceB,  if 
it  does  not  outweigh,  the  fact  that  the  right 
has  lately  been  exercised  in  a  few  instances 
without  objection.  And  in  three  of  the  four 
states  whore  the  question  has  been  made  the 
-conrts  have  decided  that  the  right  does  not  ex- 
ist" 

But  even  if  It  assumed  that  It  was  the 
practice  in  England  for  the  Attorney  General 
to  take  a  writ  of  error  in  a  criminal  case, 
■where  the  defendant  was  acquitted,  we  must 
not  overlook  the  fact  that  this  power  so  ex- 
■erclsed  sprung  from  a  governmental  policy 
to  carry  out  the  royal  prerogative  of  the  King 
and  was  used  either  to  favor  or  oppress  a 
subject  Such  a  policy  could  not,  consistently 
with  our  free  form  of  government  have  be- 
-come  imbedded  in  the  administration  of  law 
in  this  state.  And  wlille  we  recognize  in  full 
measure  the  functions  of  a  writ  of  error  as 
they  existed  at  common  law  up  to  the  time  of 
tbe  adoption  of  the  Gcmstitutlon  of  1776,  the 
procedure  relating  thereto  is  of  statutory 
regulation. 

[2J  Whatever  doubt  may  exist  whether  the 
King  under  the  common  law  could  have  a 
writ  of  error  In  a  criminal  case  after  judg- 
ment of  acquittal  of  the  defendant,  it  has 
been,  as  declared  in  the  opinion  of  the  Su- 
preme Court,  the  unquestioned  practice  In 
tills  state  recognized,  and  acquiesced  In  by 
bench  and  bar,  that  no  such  writ  would 
lie  In  favor  of  the  state  to  review  a  judg- 
ment of  acqulttaL  Since  the  Constitution  de- 
dares  that  no  person  shall,  after  an  acquittal, 
be  tried  for  the  same  offense,  no  legislation 
can  be  constitutionally  enacted  giving  the 
rifibt  of  review  in  cases  where  there  has  been 
an  acqulttaL 

[3]  Counsel  for  the  state  argues  that  the 
word  "acquittal"  In  the  Constitution  signifies 
legal  acquittal,  and  that,  where  it  appears 
that  a  trial  error  has  occurred  which  led 
to  an  acquittal,  It  cannot  be  prc^erly  said 
that  there  was  an  acquittal  within  the  mean- 
ing of  the  constitutional  sense  of  the  word. 
To  adopt  this  view  would  lead  to  a  nulliflca- 
tion  of  the  benefit  of  the  constitutional  provi- 
sion. The  obvious  design  of  the  framers  of 
tXie  Constitution  was  to  prevent  oppression. 
Where  an  acquittal  is  had  in  a  court  of  com- 


petent jurlsdlctioQ  having  jurisdiction  of  the 
person  and  the  crime  with  which  he  is 
cliarged.  It  is  an  acquittal  witliln  the  mean- 
ing of  the  constitutional  provision,  even 
though  such  acquittal  was  the  product  of 
trial  errors. 

In  the  case  of  State  v.  Meyer,  66  N.  J.  Law, 
233,  47  Aa.  486,  52  L.  R.  A.  346,  the  defend- 
ant was  convicted  In  the  court  of  quarter 
sessions,  and  took  a  writ  of  error  to  the 
Supreme  Court,  where  the  judgment  of  the 
quarter  sessions  was  reversed.  Thereuiwn 
the  prosecutor  of  the  pleas  sued  out  a  writ  of 
error  from  this  court  to  reverse  the  judg- 
ment of  the  Supreme  Court  and  the  defend- 
ant moved  to  dismiss  the  writ  on  the  ground 
that  the  state  was  not  entitled  to  a  writ  of 
error  In  a  criminal  case.  Tills  court  justified 
the  propriety  of  the  taldng  of  the  writ  by  the 
state  by  virtue  of  an  act  of  1799  (Pat  L. 
345): 

"That  errors  happening  in  the  Supreme  Conrt 
of  this  state  shall  be  heard,  rectified  and  deter- 
mined by  tho  Court  of  Apneals  in  the  last  re- 
sort in  all  cases  of  law." 

It  is  to  be  observed  that  the  defendant  in 
that  case  was  convicted  in  the  court  of  first 
Instance,  and  that  it  was  an  Intermediate 
court,  whose  action  was  subject  to  review 
by  this  court,  which  reversed  the  Judgment 
This  case  Is  therefore  no  authority  for  the 
proposition  advanced  by  counsel  for  the  state 
that  a  writ  of  error  may  be  prosecuted  by  the 
state  where  an  acquittal  Is  the  result  of  mis- 
direction by  the  court 

For  the  reasons  given,  the  judgment  of  the 
Supreme  Court  dismissing  the  writ  of  error 
Is  affirmed. 

(90  N.  J.  Law,  570) 
STANDARD  GAS  POWER  CORP.  v.  NEW 
ENGLAND  OASUALTT  CO.    (No.  8.) 

(Court  of  Eirrors  and  Appeals  of  New  Jersey. 
June  18,  1017.) 

(ByUahu*  ty  the  Court.) 

1.  Pbincifai.  and  Sukett  «=959  —  Subktt 
Bond — Construction. 

Where  a  bond  refers  to  another  contract  and 
is  conditioned  for  the  performance  of  the  specific 
agreements  set  forth  therein,  such  contract,  with 
all  its  stipulations,  limitations,  or  restrictions, 
becomes  a  part  of  the  bond,  and  the  two  should 
be  read  together  and  construed  as  a  whole. 

[EM.  Note.— For  other  cases,  see  Principal  and 
Surety,  Cent  Dig.  §§  103,  103%.] 

2.  Pbincipai,  and  Sukety  ®=»81  —  Subbtt 
Bon  d— Conbtbdction — Liability. 

A  bond  given  by  a  contractor  and  bis  surety 
to  the  Passaic  Valley  Sewerage  Commissioners, 
conditioned  that  it  shall  be  void  if  the  contractor 
shall  pay  for  all  labor  and  materials  furnished, 
and  shall  perform  all  the  obligations  of  his  con- 
tract Cor  building  a  sewer  (by  which  contract  he 
agreed  to  save  harmless  the  commissioners  from 
claims  for  labor  and  materials),  is  limited  to  an 
indemnity  of  the  obligee,  and  is  not  made  for 
the  benefit  of  persons  who  furnish  materials  to 
the  contractor,  even  though  the  contract  fur- 
ther provided  that  the  commissioners  might  pay 
claims  for  labor  and  materials  used  in  the  work 


<SS9l  or  oUiar  cases  tea  same  topic  and  KEY-NUMBSR  in  all  Kej-Nombered  Dlgeata  and  Indazu 


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101  ATLANTIC  BBPORTEE 


(N.J. 


aud  call  upon  tLe  contractor  to  repay  the  same, 
or  might  retain  fnnda  In  their  hands,  due  or  to 
become  du«  to  the  contractor,  for  that  purpose. 

[Ed.  Note. — For  other  cases,  see  Principal  and 
Surety,  Cent  Dig.  §  126.] 

3.  CoNTBACTs  «=»187(1)— Contractob'b  Bokd 

—IdABiLiTT— Statute. 
The  statute  (Comp.  St.  1910,  p.  4059,  {  28), 
permitting  a  third  party  not  privy  to  a  contract 
and  who  has  fciven  no  consideration  to  sue  there- 
on, is  limited  to  those  for  whose  benefit  the 
contract  is  made,  and  does  not  extend  to  third 
parties  who  indirectly  and  incidentally  would  be 
advantaged  by  its  performance. 

[Ed.  Note. — For  other  cases,  see  Contracts, 
Cent.  Di«.  {  798.] 

Appeal  from  Supreme  Court 

Action  by  the  Standard  Gas  Power  Cor- 
poration against  the  New  England  Casualty 
Company.  Judgment  for  defendant,  and 
plaintiff  appeals.    Affirmed. 

McDermott  &  Enrlght,  of  Jersey  City,  for 
appellant.  Robert  Strange,  of  South  Orange 
(Stuart  McNamara,  of  New  York  City,  on 
the  brief),  for  appellee. 

TRENCHARD,  J.  This  Is  an  appeal  from 
a  judgment  for  the  defendant  rendered  by 
the  trial  Judge,  sitting  without  a  Jury,  at 
the  Hudson  circuit  We  are  of  the  opinion 
that  the  Judgment  must  be  affirmed. 

The  pertinent  facts  are  these : 

The  Passaic  Valley  Sewerage  Commission- 
ers (a  public  corporation  of  the  state  of  New 
Jersey)  advertised  for  bids  for  the  building 
of  a  section  of  the  Passaic  Valley  sewer, 
with  notice  that  the  successful  bidder  would 
be  required  to  execute  a  contract  and  bond 
with  satisfactory  surety  in  a  certain  form 
prescribed.  The  Healey  Contracting  Com- 
pany, a  corporation  of  New  Jersey,  pursuant 
to  such  call,  bid  In  writing  for  such  work 
upon  the  form  prescribed  by  the  commission- 
ers. Such  bid  was  accepted  by  the  commis- 
sioners, and  the  Heoley  Contracting  Com- 
pany entered  into  a  contract  with  the  com- 
missioners for  the  execution  of  such  work, 
'delivering  to  the  commissioners  concurrently 
therewith  its  bond  In  the  sum  of  $20,000,  ex- 
ecuted by  it  as  principal  and  by  the  New 
England  Casualty  Company  as  surety,  both 
contract  and  bond  being  In  the  form  pre- 
scribed. The  bond  provides  that  the  princi- 
pal and  surety  are  "held  and  firmly  bound 
unto  the  Passaic  Valley  Sewerage  Commis- 
sioners in  the  sum  of  $20,000."  The  bond 
further  provides  that  such  sum  is  "to  be  paid 
to  the  Passaic  Valley  Sewerage  Commission- 
ers, for  which  payment,  well  and  truly  to  be 
made,  they  bin'd  themselves,"  etc.  The  con- 
dition of  the  bond  is  as  follows : 

"Now  the  condition  of  this  obligation  is  such, 
that  if  the  said  principal  shall  well  and  truly 
keep  and  perform  all  the  obligations,  asreements, 
terms  and  conditions  of  this  said  contract  on  its 
part  to  be  Isept  and  performed  and  shall  also 
pay  for  all  labor  performed  and  furnislied  and 
for  all  materials  used  in  carrying  out  of  said 
contract,    then    this   obligation    shall    be    void; 


otherwise  it  shall  remain  in  full  force  and  vir- 
tue." 

Article  13  of  the  contract  provides  that : 
"The  contractor  shall  take  all  responsibility 
of  the  work,  and  take  all  precautions  for  pre- 
venting injuries  to  persons  and  property  in  or 
about  the  work;  shall  bear  ail  losses  resulting 
to  him  on  account  of  the  amount  or  character 
of  the  work,  or  because  the  nature  of  the  land 
in  or  on  whicli  the  work  is  done  is  different  from 
what  was  estimated  or  expected,  or  on  acconnt 
of  the  weather,  elements  or  other  cause;  and 
he  shall  assume  the  defense  of,  and  indemnify 
and  save  harmless,  the  commissioners  and  their 
officers  and  agents,  from  all  claims  relating  to 
labor  and  materials  furnished  for  tlie  work," 
etc. 

Article  17  provides  In  effect  that  the  com- 
missioners might  pay  claims  for  labor  and 
materials  used  in  the  work  and  call  upon  the 
contractor  to  repay  the  same,  or  the  commis- 
sioners might  retain  funds  in  their  hands 
due  or  to  become  due  to  the  contractor  for 
that  purpose.  The  Healey  Contracting  Com- 
pany entered  into  the  performance  of  the  con- 
tract, and  It,  and  its  receiver,  after  it  had 
been  decreed  to  be  Insolvent,  purchased,  part- 
ly from  the  plaintiff  and  partly  from  the 
plaintiff's  assignor,  certain  of  the  materials 
used  in  the  construction  of  the  sewer  called 
for  by  the  contract  These  claims  for  ma- 
terials purchased  from  the  plaintiff  and  the 
plaintiff's  assignor,  and  used  in  the  perform- 
ance of  the  work,  remaining  unpaid,  the 
plaintiff  requested  the  commissioners  to  en- 
force the  bond  for  the  benefit  of  the  plain- 
tiff. This  the  commissioners  did  not  do,  and 
subsequently  the  plaintiff  brought  this  suit 
against  the  New  England  Casualty  Com- 
pany, the  surety,  upon  the  theory  that  the 
action  is  maintainable  by  the  plaintiff  as 
one  for  whose  benefit  the  bond  was  given. 
We  are  of  the  opinion  that  the  trial  Judge 
rightly  held  that  the  bon'd  in  question  was 
limited  to  an  indemnity  of  the  obligee,  and 
was  not  made  for  the  benefit  of  persons  who 
furnished  materials. 

The  plaintiff  bases  its  contention  that  the 
action  Is  maintainable  by  it  as  one  for  whose 
benefit  the  bond  was  given  upon  the  statute 
which  reads  as  follows: 

"Any  person  for  whose  benefit  a  contract  is 
made,  whether  such  contract  be  under  seal  or 
not,  may  maintain  an  action  thereon  in  any 
court  and  may  use  the  same  as  matter  of  de- 
fense in  any  action  brought  against  him  notwith- 
standing the  consideration  of  such  contract  did 
not  move  from  him."    C.  S.  p.  4059,  g  28. 

But  that  contention  is  untenable.  No 
doubt  where,  as  here,  a  bond  refers  to  anoth- 
er contract  and  is  conditioned  for  the  per- 
formance of  the  specific  agreements  set  fortli 
therein,  such  contract,  vrith  all  its  stipula- 
tions, limitations,  or  restrictions,  becomes  a 
part  of  the  bond  and  the  two  should  be  read 
together  an'd  construed  as  a  whole. 

But  so  construed,  it  is  clear  that  the  bond 
is  a  contract  of  indemnity  for  the  benefit 
of  the  Passaic  Valley  Sewerage  Commission- 
ers, and  not  for  the  benefit  of  those  furnish- 


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ing  materials.  The  intent  and  purpose  which 
the  commissioners  had  In  requiring  it  were 
twofold:  The  protection  of  the  public  in- 
terest in  the  proper  performance  of  the  work, 
and  the  protection  of  the  commissioners  from 
liability  for  claims  on  account  of  the  work. 
The  language  of  the  bond,  apart  from  the 
condition  therein,  clearly  indicates  that  the 
bond  Is  solely  for  the  benefit  of  the  obligee, 
and  the  condition  of  the  bond  Is  a  mere  lim- 
itation and  restriction  upon  the  language 
found  In  the  obligation  thereof  to  the  effect 
that  the  principal  and  surety  "are  held  and 
firmly  bound  unto  the  Passaic  Valley  Sewer- 
age Commissioners  in  the  sum  of  $20,000," 
and  the  person  to  whom  the  obligation  is  to 
be  discharged  is  manifested  by  the  further 
proTlslon  of  the  bond  to  the  effect  that 
sndi  sum  is  "to  be  paid  to  the  Passaic  Val- 
ley Sewerage  Ck>mmi8sioners."  Beading  Jthe 
bond  in  connection  with  the  proTlsions  of 
the  contract  it  appears  that  the  commission- 
ers are  given  two  means  of  protecting  them- 
selves from  loss  resulting  from  unpaid  claims 
for  labor  and  materials,  first,  by  paying  the 
claims  themselves  and  calling  upon  the  con- 
tractor to  repay  them,  and  If  the  contractor 
fails  to  make  such  repayment,  to  rely  upon 
the  bond  furnished  by  the  contractor,  or, 
secondly,  to  retain  any  moneys  due  or  to  be- 
come 'due  for  the  payment  of  such  claims. 
But  it  does  not  appear  that  the  bond  was 
made  or  intended  to  be  made  for  the  pro- 
tection of  persons  furnishing  materials  to 
the  contractor  who  at  most  were  merely  In- 
directly and  incidentally  advantaged  thereby. 

Now  the  statute  upon  which  plaintiff  re- 
lies (C.  S.  p.  4069,  g  28),  permitting  a  third 
party  not  privy  to  a  contract  and  who  has 
given  no  consideration  to  sue  thereon,  is  lim- 
ited to  those  for  whose  benefit  the  contract 
Is  made  and  does  not  extend  to  third  parties 
who  Indirectly  and  Incidentally  would  be 
advantaged  by  Its  performance.  Styles  v. 
Ix)ng,  67  N.  J.  Law,  413,  418,  51  Atl.  710; 
Styles  V.  Long,  70  N.  J.  Law,  301,  305,  57  Att 
448;  Lawrence  v.  Union  Insurance  Co.,  80 
N.  J.  Law,  133,  138,  76  Atl.  1053 ;  American 
Malleables  Co.  v.  Bloomfield,  83  N.  J.  Law, 
728.  736,  85  AtL  167. 

The  Judgment  below  will  be  affirmed,  with 
costs. 


<90  K.  J.  Law,  COS) 

MICHAEL  V.  MINCHIN. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1017.) 

(Syllabus  iy  the  Court.) 
Wil^LB  «=»545(4),  855  —  Constbuctiow  —  Bx- 

ECUTOBY    DEVISB!— FbK. 

The  testator  devised  to  bis  wife  for  life  bis 
real  estate,  aud  after  her  death  to  his  three  chU- 
clren,  oach  a  distinct  parcel  specifically  describ- 
ed, subject,  amuug  others,  to  this  proviso,  "In 
Case  my  Son  Horry  W.  Mincfain  Should  de- 
Iiart  this  life  without  Issue  His  Share  will  go 
to    my  Dautcr  li^ma  Jane  Minchin."     Harry 


survived  the  life  tenant  and  Emma  died  during 
the  life  tenancy,  leaving  a  child.  The  life  ten- 
ant conveyed  to  Harry  all  her  interest  in  the 
lands  devised  to  him.  Beld,  that  Harry  having 
survived  the  life  tenant  and  the  executory 
devisee,  Emma,  his  estate  in  the  land  devised 
to  bim  became  absolute  for  two  reasons:  (a) 
Because  the  words  "depart  this  life  without 
issue"  were  properly  referable  to  the  death  of 
the  life  tenant  and  not  to  the  devisee,  applying 
Patterson  v.  Madden,  54  N.  J.  Eq.  714,  36  Atl. 
273 ;  (b)  that  by  the  death  of  the  executory 
devisee,  Emma,  in  the  lifetime  of  Harry,  the 
gift  over  became  impossible  of  performance,  and 
that  the  estate  of  Harry,  the  first  taker,  be- 
came absolute,  applying  Uen  v.  Schenck,  8  N. 
J.  Law,  20,  and  Drummond's  Bxecutor  v.  Drum- 
mond,  26  N.  J.  Eq.  234. 

[Ed.  Note— For  other  cases,  see  Wills,  Cent. 
Dig.  11  1174,  2171.] 

Appeal  from  Circuit  Court,  Essex  County. 

Action  by  Mary  F.  K.  Michael  against  Har- 
ry W.  Minchin.  Judgment  for  plaintiff,  and 
defendant  appeala  Beversed,  and  venire  de 
novo  awarded. 

George  Minchin  died  leaving  a  last  will 
and  testament  In  which,  by  the  first  para- 
graph, he  devised  to  his  wife  for  life  his  real 
estate,  and  at  her  death  to  his  three  children, 
Harry,  Emma,  and  Adaline,  each  a  distinct 
parcel  specifically  described,  and  to  his  son 
Abraham  $3,000,  subject  to  the  following 
conditions : 

"Should  death  take  my  Dauter  Addeline  or 
She  do  not  have  anny  Issue  Children  living  at 
her  death  her  Part  will  be  divided  between  my 
son  Harry  W,  Minchin  and  my  dauter  Emma 
Jane  Minchin  in  Case  my  Son  Harry  W,  Min- 
chin Should  depart  this  life  without  Issue  His 
Share  will  go  to  my  Dauter  Emma  Jane  Min- 
chin if  Emma  Should  depart  this  life  without 
(Issue  Children)  her  Share  Should  go  to  my 
Son  Harrr  W.  Minchin  in  Case  of  my  (three  3) 
last  mentioned  children  depart  this  life  without 
Issue  then  the  whole  Shall  go  to  my  Son  Abra- 
ham C.  Minchin. 

"Second — I  leave  to  my  wife  Mary  Jane  my 
life  Insurance  Poliaeys  and  when  Paid  She 
Should  Pay  my  Son  Abraham  C.  Minchin  his 
Share  $3000.00/100  out  of  it  besides  in  Say 
Sixty  days  after  or  as  can  be  done  I  leave  my 
Wife  Mary  Jane  all  My  Personal  Property  for 
her  lifetime  and  at  her  death  it  Shall  go  to  my 
Son  Harry  W.  Minchin  if  alive  and  if  not 
alive  to  my  Dauter  Emma  Jane  and  is  not 
olive  to  my  Dauter  Addie  Ll  La  Bough  and  if 
She  is  dead  to  my  Son  Abraham  C.  Minchin 
but  at  anny  time  during  my  wife  life  if  She 
Wish  she  can  give  to  my  son  Harry  or  my  Dau- 
ter Emma  anny  or  aU  Parts  of  what  was  left 
to  them  besides  She  is  to  Scport  them  uutill 
the  are  of  age  in  as  good  a  way  as  it  will  Alow 
I  diret  my  Exectiors  to  Pay  all  my  lawful 
deaths." 

The  testatw  left  him  surviving  his  widow 
and  the  four  children  mentioned  In  the  will, 
which  was  probated  August  8,  1882.  The 
widow  is  dead,  and  of  her  children  three 
died  In  her  lifetime,  Abraham  without  Issue, 
and  Adeline  and  Emma  leaving  issue.  Har- 
ry Is  still  alive,  and  has  two  children  living. 

The  widow  conveyed  her  life  estate  in  the 
land  devised  to  Harry,  to  him,  and  he  and 
bis  wife  conveyed  the  land,  the  subject  of 
this  suit,  to  the  plaintiff  by  a  deed  containing 


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101  ATLANTIC  REPORTER 


(N.J. 


a  special  covenant  of  seisin  In  fee  simple,  and 
the  plaintiff  brought  tbis  action  to  recover 
damages  for  an  alleged  breach  of  that  cove- 
nant because,  as  she  claims,  Harry  has  not 
an  Indefeasible  estate,  but  one  that  is  subject 
to  the  gift  over  to  Emma  If  he  should  die  at 
any  time  without  leaving  issue. 

Arthur  H.  Mitchell,  of  Newark,  for  appel- 
lant. Lum,  Tamblyn  &  Ck>lyer,  of  Newark, 
for  re^>ondent 

BERGEN,  J.  (after  stating  the  facta  as 
above).  Upon  the  foregoing  facts  the  trial 
court  held,  a  Jury  being  waived,  that  the 
estate  of  Harry  was  a  fee  simple  subject  to 
a  defeat  upon  his  death  at  any  time  without 
issue,  in  which  event  the  executory  devise 
over  to  his  sister  Emma  J.  Mlnchin,  who  died 
in  his  lifetime,  vested  In  her  heirs  or  devi- 
sees, and  that  Harry's  estate  remained  de- 
feasible until  after  his  death  leaving  issue, 
and  ordered  Judgment  entered  for  the  plain- 
tiff, from  which  the  defendant  has  appealed. 

The  result  reached  by  the  court  below  Is 
erroneous  for  reasons  to  be  stated.  The 
trial  court  disposed  of  the  case  without  at 
all  considering  the  effect  of  the  intervention 
of  the  Ufe  estate  of  the  widow,  and  the  post- 
ponement of  the  right  of  possession  of  Harry 
until  after  the  death  of  the  life  tenant. 

Passing  for  the  present  the  consideration 
of  the  question  concerning  the  character  of 
the  estate  which  Emma  took  under  this  will 
if  she  died  before  Harry,  to  be  hereinafter 
dealt  with,  and  assuming  that  there  are  two 
gifts  after  the  life  estate,  one  to  Barry,  de- 
feasible upon  his  death  at  any  time  witiiout 
Issue,  and  another,  the  remainder,  to  his 
sister  Emma  in  that  event,  the  liraltation, 
over,  in  such  case,  will  be  referred  either  to 
the  death  of  the  first  devisee,  or  of  the  life 
tenant,  as  the  court  may  determine  from  all 
the  provisions  of  the  will,  because  it  should 
be  so  construed  as  to  give  effect  to  the  in- 
tent of  the  testator  ascertainable  from  his 
will.  In  the  present  case  the  will  should 
be  so  construed  as  to  refer  the  death  of  Har- 
ry without  issue  to  death  in  the  lifetime  of 
the  life  tenant  "Where  the  two  concurrent 
or  alternative  gifts  are  preceded  by  a  life, 
or  other  partial  Interest,  or  the  enjoyment 
under  them  la  otherwise  postponed,  the  way 
is  open  to  a  third  construction,  that  of  ap- 
plying the  words  in  question  (depart  this  life 
without  issue)  to  the  event  of  death  occurs 
ring  before  the  period  of  possession  or  dis- 
tribution." Jarman  on  Wills,  vol.  3,  648.  In 
Patterson  v.  Madden,  64  N.  J.  Eq.  714,  723, 
36  Atl.  273,  275,  Justice  Oummere,  In  a  well- 
considered  opinion  read  for  this  court,  de- 
clared that  two  rules  are  established  in  this 
state,  in  the  construction  of  wills  containing 
a  liraltation  over  by  way  of  an  executory  de- 
vise after  the  death  of  the  original  devisee 
without  issue,  and  they  are  stated  by  him 
as  follows: 

"First.  If  land  be  devised  to  A.  in  fee  and  a 
subsequent  clause  in  the  will  limits  such  land 


over  to  designated  persons  in  ease  A.  dies  with- 
out issue,  and  A.  so  dies,  and  the  substituted 
devisees  are  in  esse  at  his  death,  and  there  is  no 
other  event  expressed  in  the  will  to  which  the 
limitation  over  can  fairly  be  referred,  then  A. 
takes  a  vested  fee  which  becomes  divested  at  his 
death  and  vesta  in  those  to  whom  the  estate  is 
limited   over. 

"Second.  Where  there  is  an  event  indicated  in 
the  will  other  than  the  death  of  the  devisee  to 
which  the  limitation  over  is  referable  (for  in- 
stance, the  distribution  of  the  testator's  estate 
or  the  pustponement  of  the  enjoyment  of  the 
property  devised  until  the  devisee  reaches  the 
age  of  21  or  until  the  exhaustion  of  a  prior  Ufe 
estate),  such  limitation  over  will  be  construed 
to  refer  to  the  happenioR  of  such  event  or  to 
the  death  of  the  devisee,  according  as  the  court 
may  determine  from  the  context  of  the  will  and 
the  other  provisions  thereof,  that  the  limitation 
clause  is  set  in  oppositicm  to  the  event  specified 
or  is  connected  with  the  devise  itself." 

It  will  be  observed  that  under  the  first 
rule  the  substituted  devisees  must  be  In  ess© 
at  the  death  of  the  first  taker  which  is  not 
the  condition  in  the  case  under  considera- 
tion, for  here  the  executory  devisee  'died  li» 
the  lifetime  of  the  first  taker,  and  duringr 
the  existence  of  the  life  estate.  In  the  Pat- 
terson Case  the  will  gave  certain  farms  to 
his  four  sons  upon  condition  that  neither  of 
the  farms  should  be  sold  by  his  sons  during 
the  lifetime  of  Ms  wife,  with  the  proviso 
that  if  either  should  die  without  lawful  is- 
sue, the  widow  of  the  one  dying  should  have 
the  use  of  the  farm  given  to  the  son  so  long 
as  she  remained  unmarried,  and  on  her  mar^ 
rlage  or  decease,  over  to  his  lawful  heirs,  and 
it  was  there  held  that  the  limitation  over 
stoo'd  not  in  opposition  to  the  devise,  but  to 
the  event  of  the  devisees  coming  Into  pos- 
session, and  that  the  limitation  over  became 
operative  only  In  case  the  prior  devisee  died 
without  Issue  before  the  death  of  his  mother, 
and  the  case  of  Williamson  v.  Chamberlain. 
10  N.  J.  Eq.  873,  was  cited  as  an  example  of 
the  application  of  the  second  rule.  In  that 
case  there  was  a  gift  of  a  life  estate  to  a 
wife  In  real  and  personal  property  with  re- 
mainder to  his  children,  upon  condition  that 
if  any  of  his  children  should  die  without 
lawful  issue  his  or  her  share  should  be  di- 
vided between  the  survivors,  and  It  was  held 
that  the  limitation  over  stood,  not  in  opposi- 
tion to  the  devise,  but  to  the  dlstributloa  to 
the  children  after  the  death  of  the  wife,  and 
that  the  limitation  over  was  defeated  by  the 
death  of  the  mother  during  the  lifetime  of 
the  children.  Under  the  cases  referred  to, 
supported  by  numerous  citations  not  neces- 
sary to  be  here  repeated,  the  present  wlU 
should  be  construed  to  mean  that  testator  in- 
tended if  Harry  survived  bis  mother  his  es- 
tate should  become  absolute,  for  the  words 
"should  depart  this  life  vdthout  Issue"  are 
properly  referable  to  death  without  Issue 
during  the  life  tenancy.  This  Interpretatioa 
of  the  intent  of  the  testator  is  aided  by  the 
second  paragraph  of  the  will  where  the  jier- 
sonal  estate  Is  given  to  the  widow  for  Ufa 
and  at  her  death  to  Harry  if  alive,  and  iC 


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not  alive  to  Emma,  "bat  at  anny  time  during 
my  wife  life  If  She  -wish  She  can  give  to  my 
Son  Harry  or  my  Daater  Emma  anny  or  all 
Parts  of  what  was  left  to  them."  This  will 
was  evidently  drawn  by  an  Illiterate  person, 
and  Is  crudely  expressed,  but  It  Is  reasonably 
subject  to  Interpretation  that  the  wife  was 
authorized  to  turn  over  to  Harry  any  part 
of  what  was  left  him  by  the  will  when  he 
came  of  age,  for  until  that  period  the  wife 
was  required  to  support  him  In  "as  good  a 
way"  as  his  share  would  allow. 

That  the  power  of  appointment  given  to 
the  wife,  to  be  exercised  at  any  time  she 
might  wish,  was  not  Intended  to  be  limited 
to  tCfb  personal  estate,  may  be  Inferred  from 
the  fact  that  Emma  Is  given  no  part  of  the 
personal  estate  unless  she  was  alive  at  her 
brother's  death,  and  therefore  the  gift  to 
Emma  of  all  part  of  what  was  left  her,  If 
the  life  tenant  so  wished,  would  be  without 
meaning  unless  It  referred  to  something  that 
bad  been  left  to,  and  which  could  be  advanc- 
ed to  her,  and  so  when  the  wife  exercised 
her  power  of  appointment  by  conveying  to 
Harry  the  land  that  was  left  to  bim,  she  ac- 
celerated, as  she  had  a  right  to  do,  the  period 
of  distribution  as  to  Harry,  but  whether 
this  be  so  or  not  we  have  no  Uoubt  that  the 
testator  intended  Harry  to  have  his  share. 
If  he  survived  his  mother,  and  that  the  ex- 
ecutory devise  to  Emma  was  dependent  upon 
his  death  without  Issue  In  the  lifetime  of 
his  mother,  and  as  he  survived  her  his  estate 
became  absolute. 

Tbe  trial  court  was  also  In  error  in  holding 
that  notwithstanding  the  death  of  Emma, 
the  executory  devisee,  in  tbe  lifetime  of  her 
brother  Harry,  she  had  an  estate  which  pass- 
ed to  her  child,  and  that  the  chlTd  will  take 
the  land  by  inheritance  from  her  mother  If 
Barry  should  at  any  time  die  without  issue. 
Tbe  gift  to  Emma  was  a  personal  one,  there 
being  no  gift  over  in  case  of  her  death. 
Under  the  common  law  she  would  have  tak- 
en a  life  estate,  but  by  virtue  of  our  statute 
concerning  wills  (section  36,  G.  S.  p.  S873), 
taer  estate  becomes  absolute  If  the  prior  es- 
tate falls  by  death  of  Harry  without  issue, 
if  she  be  In  esse,  and  the  situation  Is  the 
same  as  if  the  devise  over  to  her  was  abso- 
lute, 80  her  dilldren  can  only  take  by  inher- 
itance from  her  and  not  by  purdiase  under 
the  will,  for  there  is  no  gift  to  her  children 
or  legal  representatives.  By  the  death  of 
Kmma  before  the  gift  over  to  her  took  effect, 
the  object  of  such  gift  was  not  in  existence, 
and  therefore  It  became  impossible  of  per- 
formance. In  such  case  the  prior  estate 
becomes  absolute  In  the  first  'devisee.  In 
Den  V.  Schenc^,  8  N.  J.  Law,  29,  the  testator 
gave  to  bis  son  Ouysbert  and  his  two  dau^h- 
ters  each  a  parcel  of  land,  with  the  proviso : 

"^nat  if  any  of  my  children  should  happen  to 
die  without  any  issue  nlive,  that  such  share  or 
dividend  shall  be  divided  by  the  survivors  of 
tb^n." 


Of  tbe  daughters,  one  died  without  issue, 
and  another,  Hannah,  died  during  the  life- 
time of  Guysbert  who  subsequently  died  with- 
out issue.  Hannah  left  children,  and  after 
tbe  death  of  Guysbert,  who  had  conveyed  to 
the  defendant  Schenck,  Hannah's  children 
brought  an  ejectment  suit  based  upon  the 
claim  that  their  mother  had  an  inheritable 
estate  which  passed  to  ber  heirs  at  the  death 
of  Guysbert  without  Issue.  The  court  held 
that  Guysbert  took  an  estate  In  fee,  subject 
to  defeasance  upon  the  happening  of  two 
events,  death  without  issue,  and  the  survival 
of  the  sisters,  and  said: 

"When  his  two  sisters  died  it  became  impossi- 
ble that  the  estate  should  be  defeated  by  going 
over  to  survivors  when  there  were  none;  from 
that  time  it  became  an  absolute  fee  simple  in 
GUbert" 

In  that  case  it  will  be  observed  there  were 
children  of  Hannwh  claiming  by  Inheritance 
from  ber,  property  she  would  have  taken  if 
she  bad  survived  Guysbert,  he  dying  without 
Issue. 

The  rule  laid  down  In  that  case  Is  that 
where  there  Is  a  gift  over  and  it  becomes  Im- 
possible of  performance  through  the  death  of 
its  object,  nothing  more  being  present,  the 
estate  ot  the  first  taker  becomes  absolute. 
The  statute  making  an  estate  absolute  where 
the  words  "heirs  and  assigns"  are  omitted, 
and  where  there  is  no  expression  in  the  will 
whereby  it  shall  appear  that  It  was  Intend- 
ed to  convey  only  a  life  estate,  as  It  now 
appears  In  our  statute  relating  to  wills  (sec- 
tion 36),  was  then  in  force,  it  having  been 
passed  August  26,  1784,  and  was  not  in  Den 
V.  Schenck,  supra,  considered  as  vesting  an 
inheritable  estate  in  executory  devisees  if 
they  did  not  survive  the  first  taker.  That 
case  was  decided  in  1824,  and  has  been  uni- 
formly recognized  by  our  courts  as  establish- 
ed In  this  state  the  legal  rule  that  where 
there  is  a  gift  to  one,  and  then  over  to  anoth- 
er if  the  first  taker  dies  without  issue,  the 
executory  devisee  must  be  alive  to  take  at 
the  termination  of  tbe  prior  estate,  and  In 
default  of  the  existence  of  the  object  of  the 
gift  over,  the  prior  estate  becomes  absolute. 
Groves  V.  Ck>x,  40  N.  J.  Law,  40,  45.  This 
rule  was  adopted  and  applied  by  Chancellor 
Runyon  In  Drummond's  Executor  v.  Drum- 
mond,  26  N.  J.  Eq.  234,  where  the  gift  was 
to  testator's  adopted  daughter  "when  she  ar- 
rives at  full  age,"  and  if  she  should  die  with- 
out leaving  lawful  issue,  then  to  his  nephew. 
The  daughter  lived  to  come  of  age,  and  the 
nephew  predeceased  the  testator.  The  chil- 
dren of  the  nephew  claimed  that  the  daugh- 
ter only  took  an  estate  defeasible  in  thu 
event  of  ber  death  without  issue  at  any  time, 
and  If  that  happened  they  would  be  entitled 
as  next  of  kin  of  their  deceased  father,  but 
the  chancellor  held  that  by  the  death  of  the 
nephew  the  estate  of  the  daughter  became 
absolute,  saying: 

"The  provision  made  in  the  contingency  of 
her  dying  without  leaving  lawful  issue  was 
made  e.xpres.sl7  for  another  object  of  his  bounty 


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whom  he  desired  and  intended  to  benefit  in  that 
event.  That  object  bad  ceased  to  exist,  and  the 
l>rovision,  therefore,  was  at  an  end,  and  the 
primary  gift  was  left  wholly  unaffected  by  it. 
The  testator  did  not  provide  that  Jane  should 
have  a  life  estate  merely,  and  that,  after  her 
death  the  property  should  go  to  her  children,  if 
she  Bhould  leave  any.  but  he  ifiTes  the  property 
to  hor  without  qualification  m  the  girt.  The 
principle  of  the  rule  that,  where  there  is  an  es- 
tate in  fee  liable  to  be  defeated  on  a  condition 
subsequent,  and  that  condition  originally  was, 
or  by  matters  subsequent  has  become,  impossi- 
ble to  be  performed,  the  defeasible  estate  ia 
made  absolute  (Co.  Litt  20Ca),  applies  to  this 
case,  for  the  estate  was  made  liable  to  be  de- 
feated by  a  gift  over,  which  could  never,  by  pos- 
sibility,  take  effect,  and  the  primary  gift,  there- 
fore, is  the  same  as  if  there  were  no  provision 
f^r  its  defeasance." 

The  trial  court  refused  to  apply  this  case 
because  the  nephew  died  In  the  lifetime  of 
the  testator,  apparently  overlooking  the  dec- 
laration of  the  chancellor  that  the  rule  ap- 
plied when  the  condition  "originally  was,  or 
by  matters  subsequent,"  became  Impossible  of 
performance.  The  court  below  also  refused 
to  apply  Den  ▼.  Schenck,  supra,  upon  the 
ground  that  the  gift  over  was  to  survivors  of 
testator's  children,  and  that  In  the  will  now 
under  consideration  there  is  nothing  to  In- 
dicate an  Intention  that  the  share  of  his  son 
Harry  should  go  to  his  sister  Emma  only  In 
the  event  that  she  should  survive  blm,  but 
this  begs  the  question  for  it  assumes  that 
under  a  proper  construction  of  this  will,  Em- 
ma took  an  Indefeasible  estate  after  the 
death  at  any  time  of  Harry  even  If  she  did 
not  survive  him,  which  is  the  very  matter  in 
dispute.  Nor  is  there  any  force  in  the  no- 
tion expressed  by  the  trial  court  that  there  Is 
a  distinction  l)eween  an  executory  bequest  to 
the  survivors  of  a  class  of  devisees,  and  one 
to  a  single  devisee,  because  the  word  "surviv- 
ors" when  so  used  merely  describes  the  ob- 
ject or  objects  who  are  to  take  the  gift  over 
because  in  existence  when  the  prior  devise 
falls,  which  may  be  one  or  more  persons. 
As  the  court  below  relies  to  some  extent  upon 
the  case  of  Seddel  v.  Wills,  20  N.  J.  Law,  223, 
and  quotes  at  some  length  from  It  to  sustain 
Its  conclusion  that  although  Emma  died  be- 
fore her  brother  Harry  the  estate  given  her 
vested  In  her  heirs  or  devisees,  if  Harry 
thereafter  died  without  leaving  issue,  a  short 
analysis  of  that  case  seems  to  be  required. 

The  facts  in  that  case,  pertinent  to  the 
present  occasion,  are  these:  The  testator  had 
three  sons  and  six  daughters  and  one  grand- 
child, and  devised  to  each  of  his  sons  and 
daughters  a  specific  tract  of  land,  and  to  his 
sraiiddaughter  a  money  legacy.  He  then  pro- 
vided that  if  either  of  his  children  should 
die  without  lawful  issue,  the  land  devised  to 
them  should  be  equally  divided  between  bis 
surviving  children.  Two  of  the  daughters 
died  without  leaving  issue,  the  three  sous 
died  leaving  issue,  two  of  them  before  both  of 
their  sisters  and  the  other  after  the  death 
of  one,  and  before  the  death  of  the  other 
sister,  another  daughter  died  after  her  two 


sisters,  leaving  issue,  and  the  three  other 
daughters  and  the  granddaughter  named  in 
the  will  were  still  alive. 

Chief  Justice  Homblower,  in  determining 
the  respective  interests  of  the. granddaughter 
named  in  the  will  and  of  testator's  other 
grandchildren,  the  issue  of  his  three  sons, 
states  two  possible  constructions  of  the  will 
depending  upon  whether  the  devise  over  was 
to  all  his  other  children  or  only  to  such  of 
theiu  as  should  actually  survive  the  one  dy- 
ing %vithout  issue,  and  then  said: 

"Upon  the  supposition  that  the  devise  over 
was  to  all  his  other  children  then,  immediately 
upon  testator's  death,  they  each  become  seized 
of  or  entitled  to  an  executory  devise  in  fee  in 
each  other's  lands  subject  to  be  defeated  *upon 
the  others  leaving  issue  at  the  time  -  of  their 
death ;  and  consequently  if  one  died  leaving  is- 
sue after  the  testator,  but  before  the  death  of  a 
brother  or  sister  without  issue,  the  issue  of  the 
one  so  first  dying  would  take  a  share  of  the 
land  of  the  one  dying  without  issue  j  not  as 
devisees  of  the  testator,  nor  yet  as  heirs  of  the 
one  dying  without  issue,  but  as  heirs  at  law  of 
his  or  her  deceased  father  or  mother,  although 
such  deceased  father  or  mother  did  not  die 
seized  of  the  land  in  possession,  but  seized  only 
of  the  executory  interest  or  estate." 

It  is  upon  this  citation  that  the  trial  court 
rested  its  decision,  but  Chief  Justice  Hom- 
blower did  not  construe  "My  surviving  sons 
and  daughters"  to  mean  all  his  other  chil- 
dren, for  following  the  statement  above  quot- 
ed which  applied  to  "the  supposition  that  the 
devise  over  was  to  all  his  other  children"  he 
said: 

"I  was  at  first  inclined  to  adopt  this  view  of 
the  case;  but  upon  further  reflection,  and  upon 
looking  at  the  whole  scope  and  tenor  of  this 
will  I  think  it  is  not  necessary  to  deitart  from 
the  plain  common  sense  and  grammatical  mean- 
ing of  the  language  of  the  testator.  There  is 
nothing  in  the  will  to  indicate  any  intention  in 
tlie  testator  that  the  children  of  a  deceased 
child,  whether  dying  before  or  after  him.  should 
stand  in  loco  parentis;  nor  any  necestdty  to 
adopt  such  a  construction  for  the  purpose  of 
effectuating  any  manifest  intention  of  the  tes- 
tator, or  satisfying  the  rules  of  the  law.  On  the 
contrary,  the  peculiarity  of  the  devise  to  tho 
three  sons,  and  the  limitation  over  only  of  what 
he  devised  to  Samuel  and  Thomas,  and  the  sub- 
stitution of  a  mere  legacy  to  his  granddaughter 
Rebecca,  in  the  place  of  the  real  estate  which 
the  testator  originally  intended  to  give  to  her 
mother,  show  that  the  grandchildren  were  not 
viewed,  or  thought  of  by  him  as  immediate  ob- 
jects of  his  bounty  in  respect  of  his  real  estate." 

And  he  determined  that  upon  the  death  of 
the  two  daughters  without  issue,  the  land 
devised  to  tliem  belonged  by  force  of  the  will 
"to  the  brothers  and  sisters  then  actually 
living,  to  the  exclusion  of  the  children  of  the 
deceased  brothers  and  sisters,  and  of  the  tes- 
tator's granddaughter  Rebecca,"  and  that  the 
surviving  brothers  and  sistera  took  their  re- 
spective shares  in  fee  simple  and  not  con- 
tingent upon  any  future  event.  As  one  of  tbe 
daughters  survived  her  sister  who  died  with- 
out Issue,  it  was  held  that  she,  surviving  her 
sister,  became  entitled  to  her  share  of  tho 
deceased  sister's  land  in  fee  simple.  It  thus 
appears  that  the  construction  relied  upon  by 
the  trial  court  was  not  adopted  by  the  Chief 


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PARKVIEW  BtaitDINa  &  LOAK  ASS'K  ▼.  ROSE 


287 


Justice  in  dealing  with  a  condition  similar  to 
the  one  In  this  case,  and  the  result  which  he 
reached  affirmed  the  principle  laid  down  by 
the  court  in  Den  t.  Schenck,  supra. 

Tho  result  of  the  views  above  expressed  is 
that  the  defendant's  death  without  Issue  is 
referable  to  his  death  in  the  lifetime  of  the 
life  tenant,  and  if  he  survived  her  his  title 
became  absolute,  and  also  that  the  gift  over 
fiilled  by  the  death  of  Emma,  in  the  lifetime 
of  her  brother  Hariy,  because  the  object  of 
the  gift  over,  being  removed,  the  executory 
devUe  becnme  impossible  of  performance,  and 
the  prior  state  became  absolute,  and  In  either 
event  the  defendant  became  seized  of  an  In- 
defeasible estate,  and  therefore  there  was  no 
breach  of  the  covenant,  contained  In  his  deed 
to  the  plaintiff,  that  he  was  seized  of  a  fee- 
simple  estate. 

This  requires  a  reversal  of  the  Judgment 
ander  review  and  the  awarding  of  a  venire 
de  novo,  and  it  Is  so  ordered. 


(90  N.  J.  Law.  618) 

COLLINS  V.  CENTRAL  K.  C50.  OF  NEW 

JERSEY. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(SyUalut  if  the  Court.) 

1.  Kaiiaoads  <S=>282(13)  —  Stations — Ikvi- 

TEE8 — ACTZONS — InSTBUCTIONS. 

In  a  case  where  the  defendant  was  charged 
with  negligence  because  of  defective  premises, 
an  instmction  to  a  jury  "that,  if  the  defendant 
company  had  at  any  time  before  the  accident 
either  knowledge  or  notice  of  a  dangerous  con- 
dition of  its  premises,  it  would  have  been  neg- 
ligence on  the  part  of  the  company  not  to  have 
remedied  this  condition,"  is  erroneous,  because 
the  defendant  is  entitled  to  a  reascmable  time 
to  inspect,  discover,  and  repair  such  defect. 
"At  any  time  before  the  accident"  includes  im- 
.  mediately  prior. 

lE<d.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  i  921.] 

2.  TBIAL   0S3296(13)— iNSTBUCnONS— Erbons- 
01TS   IRSTBVCTIONS. 

An  erroneous  instruction  is  not  cured  by  a 
subsequent  correct  one,  unless  the  illegal  one  is 
■withdrawn. 

[lOd.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  718.] 

Appeal  from  Supreme  Court 

Action  by  Andrew  J.  Collins  against  the 
Central  Railroad  Company  of  New  Jersey. 
From  a  Judgment  for  plaintiff,  defendant  ap- 
peals.   Reversed. 

Cliarles  B.  Miller,  of  Jersey  City,  for  ap- 
pellant C.  Herbert  Walker,  of  Newark,  for 
appellee. 

BERGEN,  J.  £1]  The  plaintiff  was  law- 
fully in  the  freight  station  of  defendant  at 
Xewark,  N.  J.,  for  the  purpose  of  moving 
some  bags  of  manure.  After  he  had  taken 
one  and  was  returning  for  another,  an  iron 
radiator  fell  on  him  and  Inflicted  injuries 
for  which  he  brings  this  action. 


It  is  not  necessary  to  determine  whether 
any  negligence  of  defendant  was  shown,  be- 
cause this  Judgment  must  be  reversed  for  er- 
ror in  the  charge  of  the  conrt  which  was  as 
follows : 

"If  the  defendant  company  had  at  any  time 
before  the  accident  either  knowledge  or  notice 
of  a  dangerous  condition  of  its  premises,  it 
would  have  been  negligence  on  the  part  of  tlie 
company  not  to  have  remedied  this  condition." 

"At  any  time  before  the  accident"  Includes 
immediately  before,  and  under  our  cases  de- 
fendant was  entitled  to  a  reasonable  time 
within  which  to  inspect  discover,  and  repair 
the  defective  condition  if  it  existed.  Schnat- 
terer  v.  Bamberger  &  Co.,  81  N.  J.  Law,  658, 
79  Atl.  324,  34  L.  R.  A.  <N.  S.)  1077,  Ann. 
Cas.  1912D,  139.  All  that  is  required  is  rea- 
sonable care  and  ordinary  prudence.  Ruane 
V.  Erie  Railroad  Co.,  83  N.  J.  Law,  423,  85 
Atl.   178. 

[2]  The  fact  that  the  court  subsequently 
charged  the  correct  rule.  If  he  did  as  is  claim- 
ed, does  not  cure  the  trouble,  for,  as  Mr.  Jus- 
tice Parker  said  in  State  v.  Tapack,  78  N.  J. 
Law,  208,  72  AU.  962 : 

"The  rule  is  well  settled  that  nn  erroneous 
instruction  followed  or  accompanied  by  a  cor- 
rect one  is  not  cured  by  the  latter  unless  it  is 
also  expressly  withdrawn,  as  the  jury  is  left 
at  liberty  to  adopt  either." 

The  Judgment  is  reversed. 

(90  N.   J.   Law,  614) 
PARKVIEW    BUILDING   &    LOAN    ASS'N 

OF  CITY  OP  NEWARK  v.  ROSR 

(Court  of  Errors  and  Appeals  of  (New  Jersey. 

June  18,  1917.) 

(Syllahut  by  th«  Court.) 

1.  BuiLuiNO  ANu  Loan  Associations  $=> 
23(5)— Officebs — ^Wbonoful  Acts— Loss  as 
Between  Two  Innocent  Parties— Neoli- 

OBNCB. 

Where  a  building  and  loan  association 
draws  a  check  to  pay  nutured  shares  on  ac- 
count of  which  a  loan  has  been  made  and  a 
note  taken,  expecting  the  shareholder  to  pay  the 
note  at  the  time  of  delivery  of  the  check  for 
the  shares,  and  both  note  and  check  are  placed 
in  a  safe  to  which  the  secretary  of  the  associa- 
tion has  lawful  access,  he  being  the  principal 
o£Bcer  transacting  the  financial  business  between 
the  association  and  its  shareholders,  and  au- 
thorized to  receive  all  moneys  paid  to  the  as- 
sociation, and  he,  without  express  authority, 
takes  the  note  and  check  from  the  safe,  deliv- 
ers the  check  to  the  shareholder,  collects  the 
money  due  on  the  note,  surrenders  it,  and  em- 
bezdea  the  money,  the  loss  must,  as  between 
two  innocent  parties,  fall  on  the  one  whose  neg- 
ligence made  the  fraud  possible. 

2.  BUILDINO     AND     LoAN     ASSOCIATIONS     «=» 

41(8)  —  Loss  AS  Between  Two  Innocent 

Parties — Neqlioence. 
Whether  the  circumstances  in  soch  a  case 
amount  to  negligence  is  a  jury  question,  and  a 
directed  verdict  is  error. 

The  Chancellor  and  Black,  Williams.  Taylor, 
and  Gardner,  33.,  dissenting. 

Appeal  from  Circuit  Court,  Essex  Ounty. 

Action  by  the  Parkview  Building  &  Loan 

Association  of  the  City  of  Newark  against 


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Edwin  E.  Rose.  Judgment  for  plaintiff  on  a 
directed  verdict,  and  defendant  appeals.  Re- 
versed, and  new  trial  awarded. 

PbUlp  J.  Schotland,  of  Newark,  tor  ap- 
pellant Rlker  &  Riker,  of  Newark,  for  ap- 
pellee. 

BERGEN,  J.  This  Is  an  appeal  from  a 
Judgment  entered  upon  a  verdict  directed  for 
the  plaintiff,  and  the  question  to  be  decided 
Is:    Was  such  a  direction  warranted? 

The  facts  are  not  In  serious  dispute.  The 
plaintiff  was  an  incorporated  building  and 
loan  association  of  which  defendant  was  a 
shareholder  and  from  which  he  borrowed 
$1,800  and  gave  his  promissory  note.  When 
his  shares  matured  they  were  worth  $2,000, 
and  George  Brown,  Jr.,  plaintiff's  secretary, 
notified  defendant  that  the  plaintiff  would 
pay  him  the  $2,000,  and  that  he  should  draw 
a  (Aeck  to  Brown's  order  for  the  amount  due 
on  the  note.  This  defendant  did,  and  the 
note  and  certificate  of  shares  was  delivered 
to  the  defendant  Brown  cashed  the  check 
and  embezzled  the  money,  and  plaintiff 
brought  this  suit  to  recover  the  sum  due  on 
the  note,  in  which  action  the  court  directed 
a  verdict  for  the  plaintiff.  The  constitution 
of  the  plaintiff  association  provides  that  the 
secretary  "shall  receive  all  moneys  paid  to 
the  association  and  pay  the  same  to  the  treas- 
urer," and  the  evidence  shows  that  the  sec- 
retary did  receive  nearly,  if  not  all,  the  mon- 
eys paid  to  the  association  for  it.  There  was 
also  testimony  from  which  it  may  be  Inferred 
that  Brown,  as  secretary,  was  Intrusted  with 
most  of  the  financial  transactions  between 
the  association  and  its  members,  the  duties 
•of  the  treasurer  being  confined  to  the  receipt 
of  moneys  from  the  secretary  and  their  dis- 
bursement; that  in  the  present  case,  when 
on  two  occasions  defendant  borrowed  money 
and  gave  his  notes,  the  delivery  of  the  checks 
and  taking  of  the  notes  was  done  by  Brown 
with  the  treasurer's  knowledge  and  consent; 
and  that  in  fact  all  of  defendant's  transac- 
tions with  the  association  were  bad  with 
Brown. 

[1]  But  the  plaintiff  claims  that  Brown 
had  no  authority  to  deliver  the  note  and  ac- 
cept the  moneys  due  thereon ;  that  although 
the  uniform  course  of  business  of  the  plain- 
tiff was  to  pay  in  full  matured  shares,  and  to 
be  paid  in  full  by  a  borrower  the  debt  due, 
when  shares  were  pledged  for  a  loan,  the 
secretary  had  no  power  to  make  settlements 
of  this  kind,  as  that  was  always  done  by  the 
treasurer,  and  in  accordance  with  that  prac- 
tice the  check  in  this  case  was  drawn  for 
$2,000,  and  placed  in  the  safe  of  the  plain- 
tiff with  defendant's  note  to  be  delivered 
when  defendant  notified  the  treasurer  of  his 
desire  to  settle,  when  the  latter  would  at- 
tend at  his  ofiSce  for  that  purpose,  but  there 
is  no  proof  tliat  defendant  had  knowledge  of 
this.  It  is  admitted  that  Brown  had  lawful 
access  to  the  safe,  in  common  with  the  other 


officers,  and  there  is  proof  that  be  was  thus 
afforded  an  opportunity  to  do  Just  what  he 
did,  take  the  note,  deliver  it  to  defendant, 
and  collect  the  amount  due.  Diat  be  ac- 
cepted a  cbedc  instead  of  cash  is  of  no  con- 
sequence; for  he  could  as  readily  embezzle 
the  proceeds  of  the  check  as  the  cash. 

We  are  of  opinion  that  it  was  a  Jury  ques- 
tion whether  the  plaintiff  was  not  negl^eut 
in  putting  the  check  and  note  witibin  the 
reach  of  Brown,  the  one  officer  with  whom 
most  if  not  all,  the  financial  transactions 
between  the  plaintiff  and  this  defendant  were 
carried  on,  and  also  whether  the  course  of 
conduct  pursued  or  acquiesced  in  by  the 
plaintiff  in  permitting  Brown  to  so  act  was 
not  a  holding  out  of  him  as  the  financial 
agent  of  plaintiff  with  whom  the  defendant 
might  safely  deal.  Brown  collected  all  dues; 
he  negotiated  the  loans  with  the  defendant, 
first  one  for  $600,  and  delivered  the  check 
and  took  the  note,  and  when  the  second  loan 
was  made  increasing  the  total  to  $1,800,  he 
delivered  the  check  and  took  the  note  for 
$1,800.  Prom  the  evidence  a  Jury  might  in- 
fer that  when  the  note  for  $1,800  was  deliv- 
ered to  Brown  to  be  given  to  the  association 
it  was  received  by  him  as  agent  of  the  plain- 
tiff; that  Brown,  through  the  negligence  of 
the  plaintiff,  came  into  possession  of  the 
check  and  note;  that  be  bad  always  collect- 
ed the  interest  on  the  loan  and  acted  as 
the  agent  of  the  plaintiff  in  Its  ordinary 
financial  dealings  with  shareholders;  that 
he  came  to  defendant  with  the  check,  note, 
and  shares  in  his  possession,  apparently  au- 
thorized to  make  the  settlement  and  deliv- 
ered them,  collecting  the  amount  due  on  the 
note;  and  that  the  possession  by  Brown 
of  the  necessary  papers  and  the  former 
course  of  the  association  in  permitting  Brown 
to  make  the  loans  misled  the  defendant  into 
paying  his  note  to  him. 

In  this  case  one  of  two  innocent  parties 
must  suffer,  and  if  the  Jury  should  find  from 
the  above  facts  that  one  was  negligent  the 
loss  must  be  snstalned  by  the  one  whose 
conduct  has  made  the  fraud  possible.  Law- 
son  V.  Carson,  60  N.  J.  Eq.  370.  25  Atl.  191. 

[2]  Where  one  through  negligence  gives  an- 
other power  to  practice  a  fraud  upon  inno- 
cent parties,  the  court  will  not  interfere  in 
his  protection  at  the  expense  of  the  one  who 
has  been  deceived. 

"What  circumstances  shall  be"  deemed  to  be 
"sufficient  to  establish  negligence  •  •  • 
must  be  determined  as  a  question  of  fact" 
TIeyder  v.  Excelsior  B.  &  L.  Ass'n,  42  N.  J. 
Eq.  40S,  8  Ad.  310,  59  Am.  Rep.  49. 

A  Jury  might  also  find  that  by  its  course  in 
conducting  its  business  the  association  had 
impliedly  authorized  Brown,  as  its  secretary, 
by  whom  all  moneys  paid  to  the  association 
must  be  received  according  to  the  terms  of  its 
constitution,  to  surrender  the  note  and  col- 
lect the  amount  due. 

Questions  for  a  Jury  to  determine  being 
present,  the  direction  for  plaintiff  was  error. 


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289 


Tbe  Judgment  under  review  will  be  re- 
versed, and  a  new  trial  awarded. 

THE  CHANCELLOK,  and  BLACK,  WIL- 
LIAMS, TAYLOR,  and  GARDNER,  JJ.,  dis- 
sent 


(90  N.  J.   Law.  286} 

CAKSOM  T.  SGULLX  et  aL 

(Middlesex  County  Recount  Case.) 

(Court  of  Errors  and  Appeals  of  New  Jersey.) 

The  judges  being  equally  divided  on  the  ques- 
tion whether  the  judgment  should  be  reversed, 
the  judgment  is  affirmed  solely  because  of  such 
division,  which  renders  any  opinion  by  the  court 
impossible. 

On  Appeal  from  the  Supreme  Court,  whose 
(Vini(m  Is  reported  at  99  Atl.  199. 

(FUed  July  3,  1917.) 

WALKER,  Ch.  My  vote  to  reverse  the 
Jadgment  of  the  Supreme  Court  in  this  case 
Is  based  solely  upon  the  view  that  the  Legis- 
lature has  not  provided  any  machinery  for 
carrying  on  a  recount  of  votes  cast  for  candi- 
dates for  Congress,  although.  I  find  In  the 
statute  a  declaration  of  intention  that  re- 
counts shall  extend  to  congressional  elec- 
tions. The  learned  justice  who  wrote  tue 
opinion  In  tbe  court  below  states  tbe  case 
when  he  says: 

"The  insistence  of  counsel  for  the  prosecutor 
is  that  the  l^slative  intent  was  to  confine  the 
provisions  of  this  section  [159  of  the  act  con- 
cerning elections]  to  candidates  for  election, 
such  as  state  senators,  members  of  assembly, 
surrogates,  and  other  county  and  municipal  of- 
ficers, who,  if  elected,  are,  under  the  statute, 
entitled  to  receive  their  certificates  of  election 
from  the  county  board  of  canvassers.  And  in 
furtherance  of  iaia  view  it  is  strenuously  argued 
that  the,  clear  legislative  design  to  exclude  can- 
didates at  an  election  for  Governor,  United 
States  Senator,  members  of  Congress,  and  presi- 
dential electors,  whose  election  under  the  statute 
is  to  be  determined  by  die  state  board  of  can- 
vassers, is  made  manifest  by  the  provisions 
of  sections  160  and  161  relative  to  the  recount 
of  votes,  and  section  164  relative  to  contested 
dectioDs  for  county  oCBces,"  etc. 

I  agree  with  the  view  held  by  the  learned 
Justice  that  the  statute  (P.  L.  1898,  p.  237, 
i  159;  Comp.  Stat  p.  2073;  P.  L.  1909,  p. 
41)  evinces  an  Intent  to  give  to  any  candi- 
date at  any  election,  who  shall  have  reason 
to  believe  that  &A  error  has  been  made  in 
counting  or  declaring  the  vote  of  such  elec- 
tion, whereby  the  result  has  been  changed, 
the  right  to  a  recount  and  to  this  extent 
disagree  with  the  contention  of  counsel  that 
the  section  evinces  a  legislative  intent  to  con- 
fine the  provisions  to  candidates  for  the  of- 
fices named;  but,  as  I  find  in  the  act  no  ma- 
chinery provided  for  carrying  on,  ascertain- 
ing, or  certifying  the  result  of  a  recount  of 
votes  cast  In  congressional  elections,  I  am 
constrained  to  the  view  that  no  such  recount 
can  be  had,  not  that  It  was  not  the  Intention 
of  the  Legislature  to  give  it 

There  was  a  time  in  the  liistory  of  our 
101  A.— 10 


state  when  no  recount  of  votes  cast  at  any 
election  .could  be  had  (except  as  an  Incident 
to  proceedings  in  a  contested  election  before 
a  body  authorized  to  inquire  Into  and  decide 
such  a  question,  as  the  House  of  Representa- 
tives, which  is  the  sole  judge  of  the  electi&a 
and  quallflcatlon  of  its  members,  and  the  Su- 
preme Court  on  quo  warranto,  where  the 
right  to  office  was  being  inquired  Into).  In 
fact,  we  had  no  statute  authorizing  a  recount 
of  votes  until  as  late  as  1880.  See  the  sup- 
plement to  "An  act  to  regulate  elections." 
P.  L.  1880,  p.  229;  Rev.  Supp.  p.  277;  Gen. 
Stat  p.  1327,  i  195.  And  this  extended  only 
to  candidates  for  member  of  tbe  state  senate 
or  assembly. 

By  a  supplement  to  the  elections  act  (P.  L. 
1895,  p.  659,  i  13;  Gen.  Stat  p.  1367,  §  369) 
it  was  provided  that  if  any  candidate  for 
any  office  shall  pray  a  recount  of  the  whole 
or  any  part  of  the  vote,  by  petition  to  one  of 
the  Justices  of  the  Supreme  Court  and  shall 
deposit  such  sum  as  the  Justice  shall  order  as 
security  for  the  payment  of  expenses,  it 
shall  be  tbe  duty  of  the  justice  to  order  such 
recount  by  the  county  board  of  elections  un- 
der such  supervision  as  he  may  order,  etc., 
and  on  the  conclusion  thereof  shall  certify 
the  result  which  certificate  shall  take  the 
place  of  that  originally  Issued  by  the  con- 
vasslng  board.  The  present  statute  wltb  ref- 
erence to  recount  of  votes  Is  to  be  found  in 
"An  act  regulating  elections"  (Revision  of 
1898;  Comp.  Stat  2073,  {  159;  P.  L.  1900,  p. 
41  et  seq.),  and  provides  that  whenever  any 
candidate  at  any  election  shall  have  reason 
to  believe  that  an  error  has  been  made  by  any 
board  of  elections  or  of  canvassers  In  count- 
ing or  declaring  the  vote  of  such  election, 
whereby  the  result  has  been  changed,  such 
candidate  may  apply  to  any  Justice  of  the 
Supreme  Court  who  shall  be  authorized  to 
cause,  upon  such  terms  as  he  may  deem  prop- 
er, a  recount  of  the  whole  or  such  part  of 
the  votes  as  he  may  determine  to  be  public- 
ly made  under  his  direction  by  the  county 
board  of  elections,  and  if  it  shall  an>ear, 
upon  such  recount  that  an  error  has  been 
made  sufficient  to  change  the  result  of  such 
election,  then  such  justice,  in  case  of  candi- 
dates, shall  revoke  the  certlflcatc  of  election 
Issued  to  any  person,  and  shall  issue  in  Its 
place  another  certificate  in  favor  of  the 
party  who  shall  be  found  to  have  received  a 
majority  of  the  votes  cast  at  such  electlof 
(section  159) ;  that  whenever  any  such  certifi- 
cate shaU  be  issued  by  such  justice,  the  same 
shall  be  filed  with  the  clerk  of  the  county  or 
municipality  in  and  for  which  such  election 
was  held,  and  the  clerk  shall  make  and  cer- 
tify a  copy  thereof  and  deliver  it  to  the  per- 
son who  shall  be  so  declared  elected,  and  in 
case  of  an  election  for  senator,  assemblyman, 
or  any  county  officer,  shall  transmit  to  the 
secretary  of  state  another  copy  of  such  cer- 
tificate (section  160);  that  any  applicant  for 
such  recount  shall  deposit  with  the  count; 


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(N.J. 


clerk  such  sum  as  the  Justice  shall  order  as 
security  for  the  payment  of  the  expenses  of 
the  recount,  or,  If  such  Justice  shall  order, 
shall  file  with  the  county  clerk  a  bond  to  the 
Incumbent,  to  be  approTed  by  the  Justice,  In 
such  sum  as  he  may  require,  conditioned  to 
pay  all  costs  and  expenses  In  case  the  origi- 
nal count  be  confirmed  or  the  result  of  such 
recount  Is  not  suCBdent  to  change  the  result, 
and  U  an  error  sufficient  to  change  the  result 
has  been  made,  the  expenses  shall  be  paid  by 
the  county  or  municipality  In  and  for  which 
such  election  was  held  (section  161). 

It  wlU  be  observed  that  section  13  of  the 
act  of  1895  and  secUon  159  of  the  act  of  1898, 
as  amended  by  P.  L.  1909,  p.  41,  omit  mention 
of  the  offices,  candidates  for  which  may  ap- 
ply for  a  recount,  while  the  act  of  1880  ex- 
pressly confined  recounts  to  elections  for 
state  senators  and  assemblymen.  Assuming 
that  the  recount  provisions  of  the  act  of  1895 
are  as  broad  as  those  of  the  acts  of  1898  and 
1909,  it  would  be  quite  useless  to  analyze 
them,  as  It  Is  the  latest  statute  with  which  we 
have  to  deal  in  the  case  at  bar.  That  stat- 
ute (P.  Li.  1909,  p.  41),  which  is  a  supplement 
to  the  election  act  (Revision  of  1898),  purports 
to  amend  section  159  of  the  act  of  1898  "to 
read  as  follows,"  and  then  goes  on  to  re- 
enact  section  159  verbatim  et  literatim,  and 
adds  another  section  (section  2),  which  enacts 
that  the  provisions  in  section  159  relating  to 
recount  of  votes  upon  any  referendum  or 
question  submitted  to  the  electors  shall  ap- 
ply to  those  submitted  at  the  last  general 
election  (1906),  if  applied  for  within  30  days 
after  the  passage  of  that  act  (1909),  the  time 
of  ai^lication  for  which,  under  the  provision 
of  section  159,  had  expired.  Therefore  the 
statute  stands  Just  the  same,  with  reference 
to  the  recount  of  votes  cast  for  candidates  at 
elections,  as  though  the  amendment  of  1909 
had  not  been  passed. 

The  provision  in  section  159  that,  "if  it 
shall  appear  upon  such  recount  that  an  er- 
ror has  been  made  sufficient  to  change  the 
result  of  such  election,"  the  Justice  shall  re- 
voke the  certificates  of  election  already  is- 
sued, etc.,  does  not  come  in  aid  of  the  conten- 
tion of  the  appellant  to  the  slightest  extent, 
because  the  word  "certificates"  has  reference 
to  the  word  "candidates";  the  whole  clause 
reading: 

"And,  if  it  shall  appear  upon  such  recount 
that  an  error  has  been  made  sufficient  to  ohauge 
the  result  of  such  election,  then  such  justice 
in  case  of  candidates  shall  revoke  the  certificates 
of  election  *  *  *  issued  to  anj/  person,  and 
shall  issue  in  its  place  another  certificate  in 
favor  of  the  party  who  shall  be  found  to  have 
received  the  majority  of  the  votes  cast  at  such 
election." 

The  provision  that  in  the  case  of  candi- 
dates the  certificates  shall  be  revoked  clearly 
comprehends  the  case  of  recounts  for  more 
than  one  candidate  at  the  same  time,  as,  for 
Instance,  a  recount  before  a  county  board  of 
tnnvassers  of  the  votes  cast  at  an  election  for 
surrogate  of  the  county,  and  of  mayor — or, 


say,  alderman— of  a  dty  wltliln  the  county, 
and  yet  the  act  goes  on  and  provtues  that, 
after  the  certificates  shall  be  revoked,  the 
Justice  shall  Issue  In  its  place  another  certifi- 
cate in  favor  of  the  party  who  shall  be  found 
to  have  received  the  majority  of  the  votes 
cast  at  the  election,  although  certificates  may 
have  to  De  issued  to  persons,  as  suggested. 
This  alternate  use  of  nouns  in  the  singular 
and  plural  numbers,  when  either  one  or  the 
other  only  should  be  employed,  while  nn- 
grammatlcal,  does  not  in  any  wise  vitiate  the 
section;  bat,  on  the  contrary,  because  the 
plural  noun  is  thus  employed,  It  cannot  be 
laid  hold  of  as  an  argument  for  the  conten- 
tion that  the  votes  of  three  counties,  com- 
prising a  Congress  district,  may  be  oruered 
recounted,  because  a  Justice  of  the  Supreme 
Court  may  make  superseding  certificates  a.s 
well  as  certificate,  because,  as  stated,  the  noun 
"certificates"  Is  used  only  In  reference  to 
candidates,  comprehending,  plainly,  one  cer- 
tificate for  each  candidate  obtaining  a  majori- 
ty on  a  recount ;  and  this,  quite  aside  from  the 
fact  that  congressmen  get  no  certificates  from 
county  Awards,  but  only  one  certificate  from 
the  state  board  of  canvassers. 

The  popular  and  generally  accepted  mean- 
ing of  language  is  to  be  applied  to  the  con- 
struction of  a  statute,  in  the  absence  of  a 
legislative  intent  to  the  contrary.  Gonover 
V.  Pub.  Serv.  Ry.  Co.,  80  N.  J.  Law,  681,  7S 
Atl.  187.  The  word  "any"  means  "one  out 
of  many  •  •  •  and  is  given  the  full 
force  of  'every'  or  'all.'"  Bouv.  Law  Die. 
(Rawle's  Rev.).  In  Purdy  v.  People  (N.  X. 
Court  of  Errors)  4  Hill,  384,  Scott,  Senator. 
In  his  opinion,  at  page  413,  observes : 

"Johnson  says  the  word  'every'  means  each 
one  of  all,  and  gives  this  example  :  'AH  the  con- 
gregation are  holy,  every  one  of  them.  Num- 
bers.' The  same  lexicographer  defines  'any*  to. 
mean  every,  and  says:  'It  is,  in  all  its  senses,' 
applied  indifferently  to  persons  or  things.'  " 

Now,  it  must  be  perfectly  obvious  that 
when  the  Legislature,  in  section  159  of  the 
present  act  concerning  elections,  said  tliat 
any  candidate  for  any  office  might  have  a  re- 
count, etc..  It  meant  what  It  said.  The  words 
define  themselves,  and  there  is  no  room  for 
construing  them  contrary  to  their  plain  and 
ordinary  meaning.  I  start,  therefore,  with 
the  proposition  that  the  Legislature  meant 
to  give  a  recount  to  a  candidate  in  a  con- 
gressional election.  But  It  must  be  equally 
obvious  that  a  recount  cannot  be  carried  on 
without  machinery  provided  for  that  pur- 
pose. And  the  act  of  1898,  as  we  have  seen, 
provides  that  machinery,  but  restricts  its 
operation  to  a  recount  for  county  or  munici- 
pal offices,  for  the  recount  is  to  be  had  btf 
the  county  toari  of  canvassers  and  the 
certificate  of  the  result  is  to  be  Hied  with 
the  clerk  of  the  county  or  municipalitjf  in 
and  for  which  the  election  was  held,  and 
the  expenses,  if  aa  error  be  made  sufficient 
to  change  the  result,  are  to  be  paid  by  the 
county  or  municipality  in  and  for  which  the 
election  teas  held. 


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Now,  an  election  for  congressman  is  not 
held  In  and  for  a  county  or  municipality, 
but  In  and  for  a  "district"  created  by  the 
Legislature,  and  these  districts  have  no 
clerks,  and  no  certificates  of  election  are 
^ven  congressmen-elect  by  any  oflElcers  of 
their  respective  congressional  districts;  in 
fact,   there  are   no   such   district   officers. 

The  present  act  (P.  L.  1912,  p.  912)  divides 
the  state  into  12  Congress  districts,  the  one 
in  question  being  composed  of  the  counties 
of  Middlesex,  Monmouth,  and  Ocean,  called 
in  the  act  the  "Third  district."  Admittedly, 
a  single  county  could  be  constituted  a  dis- 
trict, but  none  is  in  the  act  mentioned,  and, 
what  Is  more  to  the  purpose,  several  counties 
are  subdivided  In  creating  districts,  notably 
the  Sixth,  which  Is  composed  of  the  coimties 
of  Bergen,  Sussex,  and  Warren  and  the 
townships  of  Pompton  and  West  Mllford  in 
the  county  of  Passaic. 

If  the  decision  of  the  court  below  is  right, 
then  a  recount  of  votes  cast  in  a  gubernatori- 
al election  can  be  bad  on  the  application 
of  an  unsuQcessful  candidate.  This  re- 
coimt  would  have  to  be  made  upon  an  or* 
der  of  a  Justice  of  the  Supreme  Court,  under 
his  direction,  "by  the  county  board  of  elec- 
tions," after  due  notice,  etc.  If  made,  the 
"county  board"  would  have  to  swell  into  21 
dlfTerent  county  boards  of  election,  and  "the 
clerk  of  the  county  or  municipality  in  and 
for  which  such  election  was  held"  would 
have  to  be  multiplied  by  the  total  number  of 
county  clerks  in  the  state,  and  all  this  with- 
out any  legislative  provision  made  therefor. 
The  analogy  in  the  case  of  votes  cast  in  a 
Congress  district  is  entirely  apposite  to  that 
of  an  election  for  Governor.  Furthermore, 
if  the  result  were  changed,  how  would  the 
expenses  be  paid?  That  act  (section  161) 
provides,  as  already  noticed,  that  the  ap- 
plicant for  a  recount — 

"shall  deposit  with  the  county  clerk  such  sum 
as  such  Justice  shall  order  as  security  for  the 
payment  •  •  •  of  such  recount,  or  if  such 
justice  shall  so  order,  shall  file  with  the  county 
clerk  a  bond  to  the  incumbent  •  •  *  and  if 
it  shall  appear  that  an  error  sufficient  to  change 
the  result  has  been  made,  then  the  expenses  of 
such  recount  shall  be  paid  by  the  county  or  mu- 
nicipality in  and  for  which  such  election  was 
hekr 

As  an  election  for  Governor  is  not  held 
in  and  for  a  county  or  municipality,  but  for 
tlie  whole  state,  it  would  be  entirely  imprac- 
ticable to  order  the  expenses  paid  in  a  gu- 
bematorial  contest,  where  the  result  had 
been  changed  by  a  recount,  under  the  provi- 
sions for  payment  found  in  the  statute, 
namely,  by  the  county  or  municipality  in  and 
for  which  the  election  was  held,  because  an 
election  for  Governor  is  held  neither  for  a 
county  nor  municipality,  but  in  every  voting 
precinct  in  the  state,  and,  it  may  be  said,  for 
the  whole  state,  but  not  for  any  county  or 
municipality  of  the  state.  Payment  of  the 
expenses  of  a  congressional  recount  by  the 
Iiolltical  subdivisions  oomprlslng  the  dis- 
trict—counties  and   munlcti>alltles,   «18   the 


case  might  be — ^where  tlie  result  had  been 
changed,  in  my  Judgment,  could  only  be 
made  by  court  action  transcending  construc- 
tion, and  amounting  to  Judicial  legislation,  a 
tiling  forbidden.  Whether,  in  case  the  re- 
sult should  not  be  changed,  the  money  de- 
posited could  be  laid  hold  of  for  payment,  or 
the  bond  enforced  for  that  purpose,  as  a  vol- 
untary obligation  (see  Emanuel  v.  McNeil,  87 
N.  J.  Law,  499,  94  Atl.  616),  need  not  be 
considered. 

The  scheme  of  a  Congress  district  recount 
is  not  workable  under  the  provisions  of  the 
act  I  do  not  say  that  such  a  scheme  could 
not  be  made  workable  by  legislation.  On 
the  contrary,  it  is  plain  that  it  could.  Ample 
provisions  are  made  in  the  act  concerning 
elections  for  contests  for  (Jovemor  and  for 
members  of  the  Legislature  and  Congress. 
The  Ninth  Congress  district  is  composed  of 
the  cities  of  East  Orange  and  Orange,  and 
certain  wards  of  the  dty  of  Newark,  all  in 
the  county  of  Essex.  If  an  election  recount 
were  held  in  this  district,  the  certificate  of 
the  Justice  of  the  Supreme  Court  might  phys- 
ically be  filed  with  the  city  clerks  of  the 
Oranges,  but  could  not  be  filed  with  the 
clerks  of  the  several  wards  of  Newark,  as 
there  are  no  ward  clerks. 

The  modus  operandi  of  canvassing  the 
votes  cast  at  elections  is  shortly  as  follows: 
The  county  board  of  elections  in  each  coun- 
ty is  constituted  the  board  of  county  can- 
vassers. Section  102.  The  members  of  the 
county  board  proceed  to  examine  the  state- 
ments and  copies  of  statements  of  elections 
which  shall  be  produced  before  them,  and 
canvass  and  determine  the  votes  cast  at  the 
election,  and  make  two  statements  of  the 
result  containing  the  number  of  votes  given 
in  each  election  district  for  any  office  to 
be  filled.  Section  10&  Such  boards  deliver 
one  of  the  statements,  in  case  of  an  elec- 
tion held  for  members  of  the  House  of  Rep- 
resentatives, or  for  electors  of  President  and 
Vice  President,  or  for  Governor  or  Senator, 
members  of  assembly  or  any  county  officers, 
to  the  secretary  of  state.  Section  110.  In 
case  of  an  election  for  one  or  more  members 
of  the  House  of  Representatives,  or  electors 
of  President  or  Vice  President,  or  for  Govern- 
or, the  secretary  of  state  lays  before  the  board 
of  state  canvassers  two  such  statements. 
Section  118.  The  Governor  and  four  or 
more  of  the  members  of  the  senate  attend 
at  Trenton,  on  a  certain  date,  for  the  pur- 
pose of  canvassing  and  estimating  the  votes 
cast  for  each  person  for  whom  votes  have 
been  given  for  members  of  the  House  of 
Representatives,  or  electors  of  President  or 
Vice  President,  ot  Governor,  and  determine 
and  declare  the  person  or  persons  who  shall, 
by  the  greatest  number  of  votes,  have  been 
duly  elected  to  such  office  or  offices.  Section 
119.  The  board  proceeds  to  make  a  state- 
ment of  the  result  of  such  election,  which  is 
delivered  to  the  secretary  of  state  and  filed 
by  him.    Section  128.    And  the  secretary  of 


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101  ATLANTIC  UEPORTTCR 


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state  makes  as  many  copies  of  the  statement 
of  the  determination  of  such  board  as  there 
are  persons  thereby  declared  to  be  elected 
and  delivers  one  of  the  same  to  each  person 
who  shall  be  so  elected.     Section  127. 

By  this  summary  of  the  election  machin- 
ery, It  win  be  seen  that  no  certificates  of 
election  Issue  to  congressmen-elect  by  county 
boards  of  canvassers,  who  merely  make  a 
certificate  of  the  result  of  election  for  con- 
gressmen as  It  appears  returned  In  the  sev- 
eral election  districts,  and  send  that  certif- 
icate to  the  secretary  of  state,  who  lays  It 
before  the  state  board  of  canvassers,  who 
make  a  determination  as  to  who  Is  elected 
to  Congress  In  any  given  district  There  is 
no  provision  in  the  statute  for  any  revoca- 
tion by  a  Justice  of  the  Supreme  Court  of 
any  certificate  made  by  the  state  board  of 
canvassers.  As  the  certificates  of  election 
of  congressmen  emanate^  not  from  county 
boards  of  canvassers,  but  from  the  state 
board,  how  can  Interference  with  the  work 
of  a  county  board  affect  the  holder  of  a  cer- 
tificate from  the  state  board? 

Because  there  is  no  practical  method  of 
recounting  the  vote  in  a  Congress  district, 
an  apparently  unsuccessful  candidate  is  not 
thereby  deprived  of  the  right  to  show  that 
he,  and  not  his  rival,  as  certified,  was  elect- 
ed; for,  as  already  remarked,  the  House  of 
Bepresentatlves  Is  the  judge  of  the  election 
of  its  members,  and  our  statute  provides  an 
ample  method  of  contesting  the  election  of 
members  of  Congress.  Section  163  et  seq. 
My  view  is  that,  while  the  Legislature  In  the 
revision  of  the  election  law  of  1898  Intend- 
ed to  provide  for  a  recount  to  any  unsuc- 
cessful candidate  for  any  office  at  any  elec- 
tion, upon  proper  showing  made,  which  would 
Include  Congress  districts.  It  failed  to  pro- 
vide the  method  whereby  lawfully,  step  by 
step,  the  proceeding  could  be  effectively  car- 
ried on  and  a  definite  result  obtained  and 
certified. 

Sir  William  Blackstone,  treating  of  the 
constructions  of  statutes,  says: 

"Acts  of  Parliament  that  are  impossible  to  be 
performed  are  of  no  validity."    1  BL  Cbm.  p. 

The  doctrine  thus  expounded  by  the  learn- 
ed commentator  is,  by  parity  of  reasoning, 
equally  applicable  to  a  part  of  an  act  which 
it  impossible  of  performance,  as  well  as  to 
an  entire  act  that  cannot  be  put  into  opera- 
tion. It  has  been  held  in  this  state  that 
parts  of  acts  which  are  unconstitutional  are 
to  be  excised  to  the  extent  to  which  they 
are  Invalid  and  the  rest  of  the  act  upheld, 
If  the  parts  are  wholly  independent  of  each 
other.  State  v.  Davis,  72  N.  J.  Law,  345,  61 
Atl.  2,  and  cases  cited,  affirmed  73  N.  J.  Law, 
680,  64  Atl.  1134.  See,  also,  Meeban  T.  Ex- 
cise Com'rs,  73  N.  J.  Law,  382,  388,  64  AU. 
689.  It  must  be  perfectly  obvious  that  a 
provision  in  a  statute  for  a  recount  of  votes 
cast  for  a  state  senator  is  entirely  independ- 
ent of  one  for  a  recount  in  a  congressional 


election,  and  that.  If  the  latter  be  Invalid  or 
unenforceable,  the  former  shall,  nevertheless, 
stand.  In  Commonwealth  v.  Gouger,  21  Pa. 
Super.  Ct  217,  it  was  held,  at  page  229: 

"In  the  construction  of  statutes  it  may  some- 
times become  necessary  to  transpose  wordi, 
or  even  to  supply  or  strike  out  a  word  which 
the  context  shows  was  omitted  or  inserted  by 
mistake.  Instances  are  not  lacking  in  the 
Reports  where  this  has  been  done  in  order 
to  effectuate  the  intention  of  the  Legislature. 
But  where  an  enactment  is  plain  and  sensible, 
and,  according  to  any  meaning,  broad  or  nar- 
row, *  •  •  does  not  apply  to  the  case  in 
hand,  it  ia  not  i>ermissible  for  the  courts  to  add 
or  omit  words,  in  order  to  make  it  so  apply, 
even  though  it  may  be  clear  to  them  that  the 
case  is  as  fully  within  tho  mischief  to  be  rem- 
edied as  the  cases  provided  for.  TOiis  would 
be,  not  to  construe,  but  to  ammid,  the  law, 
which  is  within  the  exclusive  province  of  the 
Legislature.  •  •  •  When  a  court  has  gone  to 
the  verge  of  its  powers  of  construction,  there 
will  sometimes  remain  what  is  termed  a  casus 
omissus — a  case  within  the  mischief  to  be  rem- 
edied, and  possibly  within  the  general  Intent  of 
the  Legislature  as  disclosed  by  the  act,  and 
yet  not  provided  for  therein.  In  such  case  the 
Legislature  alone  can  cure  the  defect." 

The  doctrine  laid  down  in  Commonwealtli 
V.  Gouger  Is  entirely  apposite.  I  think  it 
clear,  as  I  have  said,  that  the  recount  provi- 
sion of  the  election  law  is  intended  to  apply 
to  the  case  of  a  congressional  election.  A. 
miscount  in  an  election  for  congressmen  is 
fully  as  mischievous  and  equally  entitled  to 
be  remedied  as  a  miscount  in  the  case  of 
county  or  municipal  officers;  but  the  enact- 
ment is  so  plain  in  providing  the  method  for 
recounting  votes  cast  for  county  and  munici- 
pal candidates,  and  ascertaining  and  certify- 
ing the  result,  and  so  plainly  fails  to  provide 
any  such  machinery  in  the  case  of  candidates 
for  Congress,  that  it  is  not  permissible  for 
the  courts  to  add  or  omit  words  in  order  to 
made  the  act  apply  to  the  class  of  candidates 
excluded.  And,  by  the  way,  how  do  candi- 
dates for  county  and  municipal  offices  de- 
rive their  right  to  a  recount?  It  is  not  be- 
cause they  are  named  in  section  158.  Yet 
nobody  will  deny  that  they  have  the  right. 
It  la  derived  from  the  language  "any  candi- 
date at  any  election."  If  this  language  ap- 
plies to  the  case  of  a  surrogate  of  a  county 
and  to  the  mayor  of  a  city,  and  certainly  it 
does,  it  equally  applies  to  a  congressman. 
Therefore,  I  repeat  again,  that  the  office  of 
congressman  is  within  the  purview  of  section 
159,  which  clearly  intends  to  give  a  candi- 
date for  Congress,  in  given  circumstances,  a 
recount:  but,  the  act  failing  to  provide  a. 
method  for  carrying  on  a  recount  and  certi- 
fying to  its  result  in  the  case  of  a  con- 
gressional election,  it  is,  to  that  extent,  im- 
possible of  being  performed. 

The  casus  omissus  in  the  statute  nnder 
consideration  is  the  lack  of  provision  of  ma- 
chinery for  carrying  on  a  recount  in  the  case 
of  a  contested  election  in  a  Congress  district, 
notwithstanding  the  act  evinces  a  dear  in- 
tention to  give  a  recount  in  such  case  as  well 
as  In  all  others.  The  omission  was  doubtless 
Inadvertently  made,  and  probably  came  aboa^ 


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CARSON  T.  SCULLY 


293 


in  tbls  way:  The  act  of  t880,  which  gave  a 
recoont  only  to  candidates  for  the  state  sen- 
ate or  assembly,  provided  for  the  recount 
being  made  in  the  particular  county,  with  the 
superseding  certificate.  If  one  were  Issned, 
to  be  certified  by  the  county  clerk  and  deliv- 
ered to  the  person  fonnd  to  be  elected;  while 
In  the  supplement  of  1895  and  the  revision 
of  1808  the  language  granting  recounts  and 
restricting  them  to  candidates  for  the  senate 
and  assembly,  found  In  the  act  of  1880,  was 
enlarged  so  as  to  apply  to  candidates  for  any 
and  all  o£Bce8,  but  the  machinery  for  re- 
counts, certification  of  the  result,  etc.,  was 
allowed  practically  to  remain  the  same,  and 
was  not  correspondingly  enlarged  bo  as  to 
apply  to  congressional  elections,  which,  of 
necessity,  require  other  provisions  for  enabl- 
ing a  recount  to  be  carried  on,  as  an  elec- 
tion for  congressman  is  not  held  in  and  for 
a  county  or  munldpality,  and  his  certificate 
emanates,  not  from  a  county  board  of  can- 
vassers, but  from  the  state  board  of  canvass- 
ers, for  the  superseding  of  whose  certificate 
of  election  by  a  Justice  of  the  Supreme  Court 
no  provision  is  made  in  the  statute. 

It  Is  not  an  answer  to  say  that  one  of  the 
Justices  of  the  Supreme  Court,  upon  petitions 
preferred  for  that  purpose,  made  three  sev- 
eral orders  for  a  recount  of  the  votes  cast  at 
the  last  general  election  in  the  counties  of 
Middlesex,  Monmouth,  and  Ocean  respective- 
ly, for  member  of  the  House  of  Representa- 
tives of  the  United  States,  under  his  direc- 
tion, by  the  county  boards  of  election  In  those 
counties  respectively.  Those  orders  were,  in 
my  Judgment,  unauthorized  by  the  statute, 
and  should  be  held  to  be  null  and  void. 

The  CHIEF  JUSTICE,  Justices  8WAYZB, 
TBENCHARD,  and  MINTURN,  and  Judge 
WILIJAMS  have  authorized  me  to  say  that 
tbey  concur  in  the  views  expressed  In  this 
opinion. 

(Filed  March  5,  1917.) 
WHITE,  J.  The  question  is:  Do  the  re- 
count provisions  of  the  act  concerning  elec- 
tions (2  Comp.  Stat.  p.  2125)  apply  to  an  elec- 
tion of  a  congressman  for  the  Third  congres- 
sional district,  comprising  the  three  counties 
of  Middlesex,  Monmouth,  and  Ocean.  The 
language  of  the  act  provides  for  a  recoxint — 
"tohenevgr  any  candidate  at  any  election  shall 
have  reason  to  believe  that  an  error  has  been 
made  by  any  board  of  elections  or  of  canvatiert 
in  counting  the  vote  or  declaring  the  vote  of 
such  election,"  etc. 

It  is  urged  that  the  court  should  modify 
this  language  of  the  Legislature  by,  in  effect, 
reading  Into  it,  after  the  word  "candidate," 
tbe  words  "for  state  senator,  member  of  as- 
sembly, or  county  or  municipal  officer."  It  is 
said  this  should  be  done  because  subsequent 
provisions  of  the  act  provide  for  the  issuing 
of  a  certificate  by  the  Supreme  Court  Justice 
boldlng  the  recoxut  In  place  of  the  certificates 
Issued  by  the  boards  of  canvassers,  and  as 
tbere  Is  no  certificate  of  election  from  the 
county  boards  of  canvassers  in  elections  for 


United  States  Senator,  member  of  Congress, 
presidential  electors,  or  Governor  of  the 
state,  the  act,  It  is  urged,  must  be  held  not 
to  apply  to  tiiese  officers.  A  further  argu- 
ment to  the  same  effect  is  said  to  arise  from 
the  fact  that  a  subsequent  section  of  the  act 
provides,  with  reference  to  the  expense  of 
such  recounts,  that  in  case  a  recount  shall 
result  in  favor  of  the  applicant  the  expense 
shall  be  borne  by  tlie  county  or  municipality 
"in  and  for  which  such  election  was  held," 
and  that  as  elections  for  the  officers  atiove 
mentioned  are  state-wide,  or  at  least  con- 
gressional district-wide,  this  provision  for  the 
county  •  or  municipality  bearing  the  expense 
is  Inappropriate,  and  therefore  indicates  that 
the  act  does  not  apply  to  those  elections. 

These  reasiHis,  It  may  be  remarked  in- 
cidentally, apply  with  equal  force  to  the  elec- 
tion, say,  of  an  alderman  from  a  single  ward 
of  the  city  of  Newark  or  of  a  ward  council- 
man of  any  other  municipality  having  ward 
representation  In  Its  governmental  body.  No 
certificate  Is  issued  to  such  alderman  or 
councilman  by  any  board  of  canvassers,  and 
the  election  is  not  municipality-wide,  nor 
Is  the  expense,  in  case  of  a  successful  re- 
count, confined  to  the  ward  where  the  elec- 
tion and  recount  took  place,  but  must  be 
borne  by  the  municipality  at  large.  No  one, 
however,  suggests  that  the  recount  provi- 
sions are  not  applicable  to  an  election  of  such 
an  alderman  or  councilman.  On  the  con- 
trary, it  is  here  conceded  and  urged  that  they 
are  so  applicable. 

I  take  It  that  these  certificate  and  expense 
provisions  are  not  inconsistent  with  the  wide 
scope  given  the  act  by  its  express  language, 
"any  candidate  at  any  election,"  but  that, 
on  the  contrary,  they  rfmply  provide  the  ma- 
chinery to  carry  out  that  broad  scope  In 
conformity  with  the  political  scheme  adopted 
by  the  state  for  holding  elections.  That 
scheme,  as  I  understand  it,  is  that  for  the 
purpose  of  holding  elections  there  are  two 
divisions  of  the  state,  namely,  municipal  and 
county.  For  all  municipal  officers  the  munic- 
ipality is  the  political  unit  which  holds  the 
elections.  For  all  other  elections  In  the  state 
the  county  is  the  political  unit  which  holds 
such  elections.  In  the  municipality,  if  the 
election  Is  for  mayor,  or  in  commission- 
governed  cities  for  commissioners,  the  elec- 
tion Is  municipality-wide,  and  if  the  elec- 
tion is  for  an  alderman  or  a  councilman  from 
a  particular  ward  or  subdivision  the  election 
is  not  munldpallty-wide ;  but  in  either  case 
the  election  is  "held  In  and  for  the  munic- 
ipality" and  ia  at  the  tiwnMpality'*  etepente. 
although  in  one  case  It  Is  munlcipallty-wlde 
and  In  the  other  it  is  not.  The  municipality 
is  the  political  unit  in  the  electoral  scheme  of 
the  state  for  holding  this  class  of  elections.  In 
all  other  elections  the  county  is  the  political 
unit  to  hold  the  elections.  Where  a  Governor 
Is  to  be  elected,  although  his  office  Is  state- 
wide and  the  election  is  by  the  voters  of  the 


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(N.J. 


entire  state,  tbe  political  nnlts  that  hold  tbe 
necessary  elections  are  the  counties,  and  each 
county  bears  the  cxpente  of  it*  own  election. 
The  election  held  In  each  county  for  the  of- 
lice  of  Governor  of  the  state  is  In  effect  an 
election  *in  and  for  that  particular  county," 
although  the  office  Is  state-wide  and  tbe  re- 
sult In  the  particular  county  does  not  In  it- 
self decide  who  Is  elected  to  the  state-wide 
office.  So  with  reference  to  a  United  States 
Senator  and  presidential  electors,  and,  sub- 
stituting the  congressional  district  for  the 
state,  with  reference  to  a  congressnum. 

This  Tlew  (which,  like  all  others  herein 
expressed,  is  only  advanced  as  tliat  of  an 
Individual  member  of  the  court,  and  not  as 
that  of  the  court  itself,  which  ooort,  of 
coarse.  In  a  case,  as  here,  of  a  tie  vote,  does 
not  decide  or  express  any  view)  supplies  in 
my  Judgment  a  consistent  working  basis  for 
all  of  the  provisions  of  the  recount  election 
law.  It  removes  the  alleged  inconsistency  of 
each  county  bearing  Its  own  successful  re- 
count expense,  although  more  than  one  coun- 
ty is  involved,  and  a  liberal  construction  of 
tbe  certificate  provisions  (and  all  election 
laws  should  be  liberally  construed  in  the 
spirit  of  their  enactment)  would  make  the 
Supreme  Court  justice's  certificate  a  substi- 
tute for  the  declarations  of  results  by,  or  cer- 
tificates of,  election  boards,  as  the  case  might 
be,  so  as  to  make  a  reality  of  the  express  pro- 
vision of  tbe  act  that  tbe  Supreme  Court  Jus- 
tice's certificate  "should  supersede  all  others 
and  entitle  the  holder  thereof  to  the  same 
rights  and  privileges  as  If  such  certificates 
had  been  originally  issued  by  tbe  canvassing 
board."  The  change  from  the  word  "cer- 
tiflcate"  to  its  plural  "certificates,"  also  made 
by  tbe  amending  act  of  1909  (the  present 
recount  act)  authorizing  the  Supreme  Court 
Justice  holding  a  recount  to  revoke  the 
"oertiflcates"  of  election  already  issued  to 
any  person,  instead  of  to  revoke  the  "certif' 
icate"  of  election  already  Issued  to  any  per- 
son, as  tbe  law  theretofore  read,  would  seem 
to  accord  with  this  view,  and  to  contemplate 
a  revoking  of  all  records  of  the  result  of  the 
election  of  whatsoever  description,  includ- 
ing all  certifications  thereof,  and  the  sub- 
stituting therefor  of  the  Supreme  Court  Jus- 
tice's certificate,  the  same  to  have  tbe  eftect 
Indicated  by  the  above-quoted  language. 

I  think,  therefore,  that  there  Is  no  sub- 
stantial reason  for,  in  effect,  reading  into  tbe 
act  the  words  first  above  Indicated,  thereby 
changing  the  broad  language  "any  candidate 
at  any  election"  into  "any  candidate  for  state 
senator,  member  of  assembly,  or  county  or 
municipal  office."  I  think  such  a  Judicial 
reading  into  the  statute  of  these  words  would 
be  particularly  unjustifiable,  In  view  of  the 
fact  that  the  recount  provision  of  our  elec- 
tion law  as  It  was  first  emu-tod  In  1880  did 
contain  a  similar  limitation  in  tbe  words 
"wherever  any  candidate  at  any  election 
in  this  state  for  member  of  the  senate  or  of 
tbe  assembly,"  etc..  and  that  subsequently 


that  limitation  was  omitted  in  the  present 
act  and  the  language  was  made  to  read: 
"Whenever  any  candidate  at  any  election," 
eta,  Surely  the  Legislature  In  changing  the 
law  with  reference  to  reconnts  from  one  ap- 
plying only  to  "a  candidate  for  state  senatw 
or  member  of  the  assembly"  to  "any  candi- 
date at  any  election,"  did  something  whldi 
has  a  very  significant  bearing  on  what  It 
Is  now  suggested  this  court  ought  to  read 
into  the  act 

Another  Indication  of  the  wide  diange  coo- 
templated  by  the  act  of  1909  la  found  in  the 
new  provision  in  tliat  act  with  reference  to 
a  recount  in  referendnms,  in  tbe  following 
language: 

"Whenever  any  citizen  shall  hav«  reason  to 
believe  that  an  error  has  been  made  by  ant 
board  _  of  canvaasera  in  counting  the  vote  or 
declaring  the  result  of  any  election  upon  any 
referendum  submitted  to  the  electors^"  etc. 

But,  even  In  the  absence  of  such  an  his- 
torical Indication  of  tbe  legislative  Intent, 
the  language  of  tbe  present  act  is  in  my 
Judgment  plain  and  certain,  and  therefore 
is  not  properly  subject  to  Judicial  constmc- 
tlon  Into  anything  other  than  what  It  says. 
As  above  stated,  I  find  no  real  conflicting 
provisions  In  the  act;  but,  if  I  did,  I  should 
still  think  this  language,  "any  candidate  at 
any  election,"  too  plain  for  constructive  mod- 
ification. "Where  the  purpose  of  the  law- 
makers la  expressed  in  language  so  plain 
as  to  make  it  unmistakable,  it  must  be  en- 
forced by  the  courts  as  it  is  written  without 
regard  to  its  wisdom,  or  its  apparently  un- 
wise limitations."  This  is  the  language  of 
this  court  In  Island  Heights  &  Seaside  Park 
Bridge  Co.  v.  Brooks  A  Brooks,  88  N.  J.  Jaw, 
613, 97  Atl.  267,  citing  Douglass  v.  Freeholders 
of  Essex,  38  N.  J.  Law,  214.  In  tbe  case 
of  Bullock  T.  Biggs,  78  N.  J.  Law,  63,  73  Atl. 
60,  this  court  notes  with  approval  the  ex- 
act words  of  Chief  Justice  Beasley  in  Doug- 
lass V.  Freeholders  of  Essex,  namely: 

"Where  that  which  is  directed  to  be  done  is 
within  the  sphere  of  legislation,  and  the  terms 
used  clearly  express  the  intent,  all  reasoning 
derived  from  tbe  suppoeed  inconveuience,  or  even 
absurdity,  of  tbe  result  is  out  of  place.'' 

It  is  for  the  reasons  above  expressed  that 
I  have  recorded  my  vote  for  affirmance  of  the 
decision  of  the  Supreme  Court  upholding  tbe 
applicability  of  the  recount  provisions  of  tbe 
election  law  to  the  congressional  election  here 
involved. 

I  am  requested  by  Justices  GARRISON  and 
BLACK  and  Judges  UEPPENHEIMER  and 
GARDNER  to  say  that  they  unite  In  the 
views  herein  expressed. 

Theodore  Strong  and  Alan  H.  Strong,  botli 
of  New  Brunswick,  for  appellant  Thom- 
as P.  Fay,  of  Long  Branch,  and  lindley  M. 
Garrison,  of  Jersey  City,  for  respondents. 

PER  CURIAM.  The  Judgment  under  re- 
view herein  is  affirmed  by  an  equally  di- 
vided court 


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295 


For  affirmance— OARRISON,  BERGEX, 
BLACK,  WHITE,  HEPPENHEIMEB,  TAY- 
LOR, and  GARDNER,  JJ.— 7. 

For  reversal— The  CHANCELLOR,  the 
CHIEF  JUSTICE,  and  SWAYZE,  TRENCH- 
ARD,  PARKER,  MINTURN,  and  WIL- 
LIAMS, JJ.— 7. 


CARSON  y.  SCULLY  et  aL 

(MMUDonth  Coanty  Recount  Caae.) 

(Court  of  Errors  and  Appeals  of  New  Jersey.) 

Tbe  JudgeB  being  equally  divided  on  the  que»- 
tion  whether  the  judgment  should  be  reversed, 
the  judgment  is  affirmed  solely  because  of  sadi 
division,  wUdi  renders  any  opmicHi  by  the  court 
impossible. 

On  Appeal  from  the  Supreme  Court,  whose 
opinion  is  reported  at  99  Atl.  199. 

Theodore  Strong  and  Alan  H.  Strong,  both  of 
New  Brunswick,  lor  appeUast.  Thomas  P.  Fay, 
of  Long  Branch,  and  Lindley  M.  Garrison,  of 
Jersey  City,  for  respondents. 

PER  CURIAM.  The  judgment  under  review 
herein  is  afSrmed  by  an  equally  divided  court. 

For  affirmance— GARRISON,  BERGEN, 
BLACK,  WHITE,  HEPPENHEIMER,  TAY- 
LOR, and  GARDNER,  JJ.— 7. 

For  reversal— The  CHANCELLOR,  the 
CHIEF  JUSTICE,  and  SWAVZE,  TRENCH- 
ARD,  PARKER,  MINTURN,  and  WIL- 
LIAMS, JJ.— 7. 


CARSON  V.  SCULLY  et  aL 

(Ocean  County  Recount  Case.) 

(Court  of  Errors  and  Appeals  of  New  Jersey.) 

The  judges  being  equally  divided  on  the  ques- 
tion whether  the  judgment  should  be  reversed, 
the  Judgment  is  affirmed  solely  because  of  such 
divinon,  which  renders  any  opmion  by  the  court 
impossible. 

On  Appeal  from  the  Supreme  <3oort,  whose 
«q;>inion  is  reported  at  99  Atl.  199. 

Theodore  Strong  and  Alan  H.  Strong,  both 
of  New  Brunswick,  for  appellant  Thomas  P. 
Fay,  of  Long  Branch,  and  Lindley  M.  Garrison, 
of  Jergey  City,  for  respondents. 

PER  CURIAM.  The  judgment  nnder  review 
herein  is  affirmed  by  an  equally  divided  court. 

For  affirmance— GARRISON,  BERGEN. 
BLACIC,  WHITE.  HEPPENHEIMER,  TAY- 
LOR, and  GARDNER,  JJ.-7. 

For  reversal— The  CHANCELLOR,  the 
CHIEF  JUSTICE,  and  SWAYZE,  TRENCH- 
ABD,  PARKER.  MINTURN,  and  WIL- 
LIAMS, JJ.-7. 


(S7  N.  J.  m.  «SS) 

In  re  GLUCKMAITS  WILU    (No.  72.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(SvUabu*  hy  the  Court.) 

1.  Wn,t8  «=»206—Pbobatb— Right, 

A  win  properly  proved  to  have  been  execut- 
ed with  due  legal  formality  by  a  testator  whose 
testamentary  capacity  is  not  questioned  is  enti- 
tled to  probate,  in  the  absence  of  fraud,  undue 
influence,  or  mistalte  in  the  identity  of  the  docu- 
ment executed. 

[Ed.  Note. — ^For  other  cases,  see  Wills,  Cent. 
tHg.  iS  513,  514.) 


2.  WuJiS  «=»289  —  Pbobatx  —  Bdbdbr   of 
Proof— Knowlkdge  of  Contents. 
Physical  or  educational  disability,  however, 
as  blindness  or  inability  to  read  the  language,  if 
accompanied  by  circumstances  leading  the  court 
to  suspect  possible  imposition,  subjects  propo- 
nents of  a  will  to  the  additional  burden  of  show- 
ing to  the  satisfaction  of  the  court  that  tes- 
tator knew  its  contents  so  that  he  understood 
them. 
[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 

Dig.  is  esa-^i.] 

S.  Wnxa    «=»302(3)— Pkobatb— Undbbstand- 
iNG  OF  Contents  —  Sufticiknct  of  Evi- 

DENCX. 

This  burden  Is  sustained  by  satisfactory 
proof  that  the  testator  was  made  acquainted 
with  and  understood  the  contents  of  the  will  to 
the  same  extent  that  he  would  have  done  if  the 
disability  had  not  existed  and  he  had  read  the 
will  himself.  The  extent  of  the  burden  is  meas- 
ured by  the  effect  of  the  disability. 

[^d.  Note. — ^For  other  cases,  see  Wills,  Cent. 
Dig.  S  702.] 

4.  Wiixs  <S=5>206  —  Pbobate  —  Vabiancb  Be- 
tween WjIX  AND  iNSTKUCTIONa 

In  the  absence  of  fraud  or  of  undue  influ- 
ence, a  variance  between  the  will  and  the  in- 
stnictiong  from  which  it  was  drawn  will  not 
defe.it  probate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §§  51.3,  514.) 

5.  Wills  €=>152— Pbobate— Mistake. 

In  the  absence  of  fraud  or  of  undue  influ- 
ence, mistake,  except  in  identity  of  the  instru- 
ment executed,  will  not  defeat  probate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  S{  3(i9,  370.) 

6.  Wills  €=»152— Probate— Misdndebstand- 
INO  of  Legal  Effect. 

Misunderstanding  of  the  legal  effect  of  the 
provisions  of  a  will,  whether  resulting  from  er- 
roneous legal  advice  or  otherwise,  will  not,  in 
the  absence  of  fraud  or  of  undue  influence,  de- 
feat probate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §{  369,  370.] 

Appeal  from  Prerogative  Court. 

In  the  matter  of  the  last  will  and  testament 
of  Isaac  Oluckman,  deceased.  I)^m  a  de- 
cree of  the  Supreme  Court  (98  Atl.  831), 
affirming  a  decree  refusing  probate,  propo- 
nents appeal.  Reversed  and  matter  remit- 
ted to  Prerogative  Court  for  an  order  admit- 
ting the  win  to  probate. 

This  is  an  appeal  from  an  order  of  the 
Prerogative  Court  affirming  an  order  of  the 
Hudson  county  orphans'  court  denvJng  pro- 
bate to  a  document  offered  as  the  last  will 
and  testan\ent  of  I.'iaac  Oluckman,  late  of  the 
city  of  Bayonne,  decea.sed.  Gluckman  left 
a  widow,  but  no  descendants.  The  will 
in  question  was  drawn  and  executed  two 
days  before  his  death  when  he  was  about 
to  undergo  an  (^>eratlon  for  appendicitis,  and 
it  gave  bis  entire  estate  to  his  executora 
to  pay  his  widow,  out  of  the  Income,  "a 
weekly  allowance  of  forty  dollars  and  such 
other  sum  or  sums  as  may  be  necessary  dur- 
ing the  term  of  her  natural  life,"  she  to  re- 
main in  the  residence,  and  after  her  death 
the  entire  residue  of  the  estate  to  go  to  such 
Home  for  Old  People  as  the  widow  should  by 


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101  ATIiANTIC  REPOHTEB 


(N.J. 


will  direct,  or  In  default  of  such  direction, 
aa  sbould  be  selected  by  the  executors.  It 
appointed  as  executors  Mahnken,  the  presi- 
dent of  a  bank  with  which  testator  did 
btislness,  Annett,  testator's  real  estate  agent, 
and  Judge  Roberson,  his  lawyer  who  had 
represented  him  during  a  period  of  25  years, 
and  who  drew  the  will.  T^tator  was  unable 
to  read  or  write  (except  his  own  signature) 
In  the  English  language,  but  could  talk  and 
understand  that  language,  although  some- 
what brokenly  and  Imperfectly.  He  was  In 
bed  when  he  gave  instructions  for  drawing 
the  will,  and  bis  lawyer  testified  that  the 
Instructions  as  given  were : 

"AU  of  the  property  for  Mrs.  Gluckman  for 
life.  I  want  Mr.  Roberson  and  Annett  and 
Mahnken  to  be  executors.  The  debts  of  the  es- 
tate are  so  many  that  I  do  not  know  when  she 
will  get  any  Income;  allow  her  forty  dollars  a 
week  out  of  the  income.  Not  move  from  the 
house  undl  she  die." 

Then  he  said  after  I  had  stopped  writing: 
"Give  her  as  much  more  as  is  necessary  for 

her  support,  and  after  her  death  to  Home  for 

Old  People." 

The  lawyer  produced  a  short  abbreviated 
memorandum  made  by  him  as  these  instruo- 
tlons  were  given.  He  says  he  understood 
or  interpreted  the  part  of  the  Instructions 
after  the  one  for  the  appointment  of  execu- 
tors to  be  a  modification  of  the  first  sentence 
of  the  Instructions;  that  he  went  into  an  ad- 
Joining  room  and  at  once  drew  the  will  in 
accordance  with  this  interpretation,  brought 
It  back  and  read  it  paragraph  by  paragraph 
to  the  testator,  who  fully  understood  it  and 
nodded  assent  to  each  paragraph;  that  he 
told  testator  that  the  provision  of  the  will 
which  directed  the  executors  to  pay  the  wid- 
ow In  addition  to  the  $40  weekly  allowance, 
"such  other  sum  or  sums  as  may  be  necessary 
during  the  term  of  her  natural  life,"  would 
permit  the  executors  to  give  and  allow  her 
the  whole  income  after  the  debts  were  paid, 
and  that  the  testator  said:  "All  right  That's 
good."  The  will  was  then  executed  with  com- 
plete formality  in  all  respects.  There  was  evi- 
dence that  after  the  execution  of  the  will 
and  immediately  before  the  operation  tes- 
tator told  bis  wife  and  others  that  be  bad 
left  everything  to  his  wife.  The  estate  con- 
sisted of  about  100  small  houses,  estimated 
to  be  worth  from  $200,000  to  $250,000,  but 
subject  to  $101,000  of  mortgages  'and  $9,000 
or  $10,000  of  unpaid  back  taxes.  There  were 
also  outstanding  promissory  notes  of  the  tes- 
tator amounting  to  from  $16,000  to  $25,000. 

There  was  a  former  will,  executed  some 
four  years  earlier,  and  which  is  still  In  ex- 
istence, which.  If  unrevoked,  gave  $5,000  each 
to  a  brother  and  to  a  sister  of  testator,  $1,000 
to  the  widow  of  a  deceased  brother,  and  the 
remainder  of  testator's  estate  to  his  widow 
absolutely.  The  brother  and  sister  are  the 
caveators,  and  testator's  widow,  while  not 
formally  a  caveator,  was  represented  by  coun- 
sel who  took  the  chief  part  In  opposing  the 
probatei. 


Elmer  W.  Demarest,  Llndlcy  M.  Garrison, 
and  Gilbert  Collins,  all  of  Jersey  City,  for 
appellant.  Max  Levy,  of  Bayonne,  and  Clar- 
ence Lilnn,  of  Jersey  City,  for  caveators. 
Joseph  M.  Noonan,  of  Jersey  City,  tor  re- 
spondent Rosa  Gluckman. 

WHITE,  J.  (after  stating  the  facts  as 
above).  The  question  Involved  Is  one  of 
probate  under  the  statute,  pure  and  simple, 
and  not  one  either  of  construction  or  of  refor- 
mation. 

[1]  The  document  offered  for  probate  Is  of 
testamentary  character;  It  is  in  writing;  It 
was  signed  by  the  testator;  It  was  both  sign- 
ed by  the  testator  and.  declared  by  him  to  be 
his  last  will  In  the  presence  of  two  witnesses 
who  were  present  at  the  same  time,  and  who 
subscribed  their  names  thereto,  as  witnesses. 
In  the  presence  of  the  testator,  and  at  his 
request.  It  has  not  been  revoked  and  the 
testator  is  now  dead.  No  question  is  raised 
Involving  lack  of  testamentary  capacity  ou 
his  part  A  will  so  executed,  under  these  cir- 
cumstances, is  entitled  to  probate  unless  it 
be  the  result  of  fraud  or  of  undue  Influence 
or  (within  certain  limitations)  of  mistake. 
Fraud  (and  this  Involves  bad  faith  on  the 
part  of  its  perpetrator)  willfully  deceives  free 
agency;  undue  influence  overmasters  it; 
whUe  mistake,  whether  self -Induced  or  the  re- 
sult of  the  Innocent  error  of  another,  mis- 
leads free  agency,  without  bad  faith  or  dom- 
ination on  the  part  of  any  one. 

[S]  Where  a  testator.  In  addition  to  com- 
plete testamentary  mental  capacity,  is  in  full 
enjoyment  of  average  physical  and  education- 
al faculties,  It  would  seem  that  In  the  ab- 
sence of  fraud  or  of  undue  Influence  a  mis- 
take, in  order  to  defeat  probate  of  his  en- 
tire will,  must  in  substance  or  effect  really 
amount  to  one  of  Identity  of  the  Instrument 
executed ;  as,  for  Instance,  where  two  sisters, 
in  one  case,  or  a  husband  and  wife,  In  an- 
other, prepared  their  respective  wills  for 
simultaneous  execution  and  through  pure  er- 
ror one  executed  the  other's,  and  vice  versa. 
Anon.,  14  Jur.  402;  Re  Hunt  L.  R.  8  P.  & 
D.  250;  Nelson  v.  McDonald,  61  Hun,  406, 
16  N.  y.  Supp.  273.  Short  of  this,  however, 
or  of  something  amounting  In  effect  to  the 
same  thing.  It  is  against  sound  public  policy 
to  permit  a  pure  mistake  to  defeat  the  duly 
solemnized  and  completely  competent  testa- 
mentary act  It  Is  more  important  that  the 
probate  of  the  wills  of  dead  people  be  effec- 
tively shielded  from  the  attacks  of  a  multi- 
tude of  flctltions  mistakes  than  that  It  be 
purged  of  wills  containing  a  few  real  ones. 
Tlie  latter  a  testator  may,  by  due  care,  avoid 
in  his  lifetime.  Against  the  former  be  would 
be  helpless. 

[2, 8]  Where,  however,  a  testator,  by  rea- 
son of  physical  or  educational  disability,  as 
by  blindness  or  by  inability  to  read  the  lan- 
guage in  which  the  will  is  written  (as  in  the 
case  sub  Judice),  is  unable  by  the  exercise  of 
bis  own  faculties  to  see  for  himself  that  the 


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297 


win  expresses  his  testamentary  desires,  an 
additional  burden  Is  Imposed  npon  the  pro- 
ponents of  the  will,  where  there  are  any  dr- 
cnmstances  which  lead  the  court  to  suspect 
that  he  may  have  been  Imposed  upon  (Pattou 
v.  Hope,  37  N.  J.  Eq.  522),  namely,  that  of 
showing  to  the  satisfaction  of  the  court  that 
roch  a  testator  was  made  acquainted  with 
the  provisions  of  the  will  so  tliat  he  under- 
stood them.  Day  v.  Day,  31  N.  J.  Eq.  649; 
Harris  ▼.  Vanderreer's  Executor,  21  N.  J. 
Eq.  561;  Lyons  v.  Van  Blper,  26  N.  J.  Bq. 
337;  HUdreth  v.  Marshall,  61  N.  J.  Eq.  241, 
27  AtL  466.  Most  frequently  where  a  physi- 
cal or  educational  disability  of  this  char- 
acter exists,  contested  will  cases  are  founded 
npon  fraud  or  upon  undue  Influence. 

In  the  present  case,  however,  the  learned 
trial  Judge  of  the  orphans'  court  of  Hudson 
county  before  whom  the  issue  was  tried,  and 
the  learned  vice  ordinary  who  beard  it  on 
appeal  to  the  Prerogative  Court,  were  both 
of  the  opinion  that  neither  fraud  nor  undue 
influence  entered  Into  the  making  of  this  will. 
A  careful  examination  of  the  evidence  leaves 
us  in  entire  and  emphatic  accord  with  this 
view.  Both  of  these  Judges,  however,  were 
convinced  that,  by  reason  of  what  they 
thought  was  an  error  on  the  part  of  the  law- 
yer who  drew  the  will  in  misinterpreting  the 
testator's  intentions,  and  also  in  advising  tes- 
tator of  the  legal  effect  of  one  of  its  provl- 
8l«»i8,  the  will  as  executed  did  not  in  at  least 
one  very  Important  respect  carry  out  the  In- 
tention of  the  testator,  and  that  it  was  not,  in 
this  respect,  tmderstood  by  him  when  he  exe- 
cnted  it.  For  this  reason  probate  was  refus- 
ed. We  think  this  was  error.  While  we 
agree  that  a  situation  arose  under  the  evi- 
dence (by  reason  of  testator  being  unable  to 
read  the  English  language,  taken  in  connec- 
tion with  the  testimony  tending  to  show  a 
state  of  mind  or  intention  on  his  part  in- 
consistent with  that  Indicated  by  the  will  as 
execnted)  which  put  the  burden  upon  pro- 
ponents of  showing  to  the  satisfaction  of  the 
court  that  testator  was  made  acquainted  with 
the  provisions  of  the  will  so  that  he  under- 
stood them,  we  nevertheless  think  that  pro- 
ponents successfully  sustained  this  burden. 

Tbe  contrary  view  of  the  learned  trial 
Judge  below  seems  in  re&lity  to  have  been 
based  npon  two  nncontrolllng  elements, 
namely:  (1)  What  they  thought  was  a  vari- 
ance between  the  will  as  executed  and  the 
instmctions  from  which  it  was  prepared; 
and  (2)  what.  If  it  existed,  amounted  to  a 
pure  mistake  upon  the  part  of  the  testator 
(whetber  seU-lndnced  or  resulting  from  er- 
roneous legal  advice  of  his  la-wyer)  as  to 
tbe  practical  effect  of  a  provision  of  the  will 
wblcb  he  knew  it  contained  and  thoroughly 
imderstood. 

[4]  As  to  the  first  of  these,  it  is  quite  im- 
material whether  tbe  will  did  or  did  not  cor- 
rectly embody  the  instructions,  if  in  point  of 
tact  tJbte  testator,  when  he  executed  it,  was 
made    acquainted  with   and  understood  its 


contents.  As  was  said  by  Vice  Ordinary 
Beed  in  In  re  Livingstcm's  WIU  (Prerog.)  37 
AU.  770: 

"It  is  said  *  *  »  that  her  instructions 
were  not  followed  in  drafting  the  will;  *  *  * 
and  that  the  will,  as  drafted,  •  •  •  does  not 
carry  into  effect  that  wish.  •  •  •  But  wheth- 
er it  does  or  not,  if  she  was  capable  of  making  a 
will,  and  there  was  no  fraud  practiced  upon  her 
by  which  she  was  misled  into  signing  what  she 
did  not  wish  to  sign  (and  there  is  no  proof  of 
fraud  in  this  case),  it  would  not  matter  what 
variation  ther«  might  be  between  the  instruc- 
tions and  the  executed  instrument." 

[(]  As  to  the  second:  Assuming  that  the 
lawyer's  assurance  that  the  "such-sum-or- 
sums-as-may-be-necessary"  clause  would  per- 
mit the  executors  to  pay  over  the  oitire  in- 
come after  the  debts  were  satisfied,  was 
Intended  and  imderstood  as  legal  advice  upon 
the  construction  of  this  clause,  and  that  it 
was  legally  nnsound  (which,  under  the  dr- 
cumstances,  we  think  it  was  not),  that  also, 
in  the  absence  of  fraud  or  of  undue  influence, 
is  insufficient  to  defeat  probate  of  the  will. 
It  Is  no  new  thing  for  provisions  in  wills  to 
turn  out,  under  the  established  rulings  of 
the  courts,  to  have  a  very  different  meaning 
from  tliat  which  tbe  testators  themselves, 
under  tbe  honest  bat  mistaken  advice  of 
counsel,  thought  they  bad  when  the  wills 
were  executed,  but  this  has  never  been  a 
ground  for  refusing  probate.  The  learned 
vice  ordinary  recognized  this  rule,  dtlng  Col- 
Uns  V.  Elstone,  L.  B.  [1893]  Probate  Div.  1, 
but  thought  the  situation  was  different 
where  the  testator  could  not  read  nor  write. 
We  think  the  difference  is  limited  by  the  ef- 
fect of  the  disability  which  gives  rise  to  It 
If  a  blind  testator  makes  a  will  and  through 
pure  mistake  a  clause  which  he  intended,  and 
gave  instructions,  to  insert,  is  left  out,  the 
will  is  entitled  to  probate  if  the  testator  was 
made  acquainted  with  and  understood  what 
it  did  contain.  In  spite  of  the  fact  that  he 
Intended  to  Insert  another  dause  which  by 
inadvertence  was  omitted.  A  tinge  of  fraud 
or  of  undue  influence  might  shed  an  entirely 
different  light,  but  in  tbe  absence  of  either  of 
these,  the  error  becomes  a  mlsteke,  pure  and 
simple,  not  resulting  from,  and  therefore  not 
protected  by,  any  failure  to  conform  to  any 
rules  devised  to  overcome  tbe  disadvantage 
of  the  disability. 

So  in  this  case,  the  testator  was  made  ac- 
quainted with  and  understood  the  fact  that 
the  will  which  he  was  about  to  execute  pro- 
vided that  his  wife  should  get,  during  her 
lifetime,  from  the  executors,  out  of  the  in- 
come, $40  per  week  and  such  additional  sums 
as  should  be  necessary.  Knowing  and  under- 
standing that,  he  knew  and  understood  ex- 
actly what  he  would  have  known  and  under- 
stood, if  he  could  have  read  the  English  lan- 
ga&ge  with  average  intelligence  and  under- 
standing and  had  read  this  will  himself  in- 
stead of  its  being  read  to  him.  We  think, 
therefore,  that  the  honest  legal  advice  (if  it 
was  legal  advice)  given  him  as  to  what  the 
executors  could  legally  do  under  tbe  clause 


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In  question  can,  even  If  legally  unsound,  have 
no  more  effect  In  preventing  probate  of  tbe 
will  in  tbe  one  case  tban  in  the  other,  which 
is  none  at  all. 

This  brings  ns  to  the  one  material  question 
in  the  case,  which  is,  Did  the  testator  when 
he  executed  this  will  know  and  understand 
its  provisions  to  the  same  extent  that  he 
would  have  done  had  he  been  able  to  read 
and  understand  written  English  with  average 
facility  and  comprehension,  and  had  he  read 
the  win  himself  instead  of  having  it  read  to 
him?  We  think  this  question  must  be  an- 
swered in  the  affirmative.  He  was  a  keen 
business  man,  In  full  possession  of  his  facul- 
ties, and  thoroughly  intelligent  (as  is  evi- 
denced by  his  being  "well  versed  in  Hebrew 
lore"),  able  and  accustomed  perfectly  to  un- 
derstand and  be  understood  by  Judge  Rober- 
son,  who  had  been  his  close  and  constant  legal 
and  business  counsel  while  testator  pursued 
the  road  from  penury  to  comparative  afflu- 
ence^ during  a  period  of  25  years,  and  the 
will  was  read  to  bim  and  expressly  assented 
to  by  him  paragraph  by  paragraph.  The 
clause  in  question  is  of  such  a  nature  that  to 
hear  It  read  would  necessarily  convey  tbe 
knowledge  of  what  it  said.  It  said  the  ex- 
ecutors were  to  pay  the  widow  out  of  Income 
such  sums  in  addition  to  the  $40  per  week 
aa  should  be  necessary  during  her  life,  with 
a  remainder  over  after  her  death  to  a  Home 
for  Old  Pe<9le  to  be  selected  in  the  manner 
directed.  Obviously  upon  hearing  this  dause 
read  by  his  lawyer  testator  knew  and  under- 
stood exactly  what  he  would  have  known  and 
understood  If  he  could  have  read  English 
with  perfect  fitdllty  and  had  read  it  himself. 
That  this  Is  so  Is  also  evidenced  by  the  fact 
that  when  the  lawyer  told  him  this  clause 
would  permit  the  executors  to  pay  all  the  in- 
come to  the  widow  when  the  debts  were  paid, 
he  said:  "All  right.  That's  good."  We 
think,  therefore,  that  proponents  have  sus: 
tained  the  burden  of  showing  that  testator 
knew  and  understood  the  contents  of  the  will 
when  he  executed  it,  and  that  It  should  be 
admitted  to  probate. 

We  may  say  in  tills  connection  also  that  we 
are  not  at  all  certain  that  there  was  any  mis- 
take whatsoever  made  by  anybody  in  the 
preparation  of  this  will  or  in  what  was  said 
as  to  the  practical  effect  of  the  provision  in 
question.  When  the  testator's  personality 
was  withdrawn  by  death  it  left  this  heavily 
involved  estate  in  a  most  precarious  condi- 
tion, and  no  one  understood  better  than  the 
testator  when  be  made  his  will  that  this 
would  be  so.  He  knew  that  his  estate,  con- 
sisting, as  It  did,  exclusively  of  100  small 
houses  worth  maybe  $200,000,  but  subject  to 
over  $100,000  of  mortgages  and  also  to  shrink- 
age in  rental  and  market  value  from  de- 
terioration and  obsession,  not  to  mention  the 
cost  of  constant  repairs  and  renewals,  with 
$10,000  of  unpaid  taxes  in  arrear,  and  up- 


wands  of  $25,000  of  floating  debt,  was  a  leaky 
ship  in  a  stormy  sea,  and  tnat  if  his  wife 
was  to  get  any  real  benefit  from  It  at  all, 
there  must  be  skillful  handling.  He  provided 
for  such  handling  by  securing  the  services, 
as  executors,  of  the  three  men  who  had  as- 
sisted him  most  tn  the  very  lines  where 
strength  would  be  needed,  namely,  his  banker, 
his  real  estate  man,  and  his  lifelong  lawyer. 
If  they  were  to  succeed  they  would  need  lee- 
way, discretion,  full  control.  Also  It  is 
quite  likely  that  the  practical  effect  of  the 
clause  in  question  may  turn  ont  to  be  to  per- 
mit the  payment  of  all  the  Incrane  to  the 
widow  after  the  debts  are  paid,  just  as  the 
lawyer  said  It  would.  It  does  not  seem 
probable  that  tbe  net  Income  will  amount  to 
more  tban  wOl  be  necessary  for  the  widow 
to  live  upon  in  the  manner  her  husband  would 
have  desired,  and  her  age  and  the  assistance 
she  rendered  him  entitle  her  to  enjoy,  as  soon 
as  the  dangers  which  threaten  the  entire  es- 
tate are  safely  passed.  This  testator  may 
well  have  thought  he  was  adopting  the  very 
best  way  possible  under  the  drcumstances  of 
securing  to  his  wife  the  entire  Income  for 
her  life.  That  may  have  been  what  he 
thought  when  he  told  her  and  others  that  be 
had  left  everything  to  her.  Certainly  he  did 
not  mean  that  assurance  literally,  as  the 
provision  over  after  her  death  to  a  Home  for 
Old  People,  which  he  included  in  his  instruc- 
tions and  discussed  and  approved  the  details 
of  as  fixed  by  the  will,  thoroughly  demon- 
strates. 

But  be  this  as  it  may,  we  are  quite  satis- 
fied that  for  the  other  reasons  herein  stated 
the  will  should  receive  probate  and  the  or- 
der of  tbe  Prerogative  Court  afllrmlng  the 
order  of  the  orphans'  court  denying  probate 
is  therefore  hereby  reversed,  and  the  matter 
remanded  to  the  Prerogative  Court  in  order 
that  an  order  may  be  duly  made  admitting 
the  will  to  probate.  Tbe  costs  will  be  paid 
out  of  tbe  corpus  of  the  estate. 


(SO  N.  J.  I4iw,  682( 

GUARRAIA  V.  METROPOLITAN  LIFE  INS. 
CO.     (No.  120.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

1.  Appkai.  and  Ebrob  ®=3644(1)— Failubb  to 
Fn.B  Transcbipt  Within  Timb  Allowbd— 
Waiver  or  Objection. 

'The  failure  to  file  transcript  witUn  15  daya 
after  judgment  was  waived  by  service  and  ac- 
ceptance of  the  printed  state  of  the  cose,  and  the 
limitations  of  objection  thereto  that  certain  doc- 
umentary evidence  had  not  been  printed,  which 
was  afterwards  supplied. 

[Ed.  Note. — For  other  cases,  see  Appeal   and 
Error,  Cent.  Dig.  S§  2795-2798.] 

2.  Insubance  ®=291(4)  —  Appuoation  mtt 
Life  Policy  —  Cokbtruction  —  Incoi(pz,kts 
Answers. 

Tbe  failure  to  complete  a  printed  statement 
in  application  tor  life  policy  stating  that  insur- 
ed had  not  had  specified  diseases,  "except  ■ 


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299 


amoimted  to  a  definite  statement  that  he  had  not 
had  such  diseases,  and  was  not  a  mere  incom- 
plete answer  accepted  by  the  insurer  without  in- 
sistence upon  completion. 

[Bd.   Note. — For  other  c&sea,   see   Insurance, 
Cent  Dig.  {  687.] 

3.  Irsttbancb  ®=s>265— Afflicatior  roB  Life 
PoucT  —  Effect  of  MissTATGMEnT  —  Wab- 

KANTT  OB  MiSBEPKESENTATION. 

If  a  misstatement  in  application  for  life 
policy  was  a  warranty,  the  policy  falls ;  if  only 
a  misrepresentation,  intentional  falsehood  is  nec- 
essary to  avoid  policy. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  f  680.] 

4.  iNSTTRANCx  ^=3668(6)  —  Action  on  Lute 
PoucY—MiBBEPRKSENTATioN— Question  fob 

JiTBT. 

Where  insnred  was  an  Italian,  unacquainted 
with  the  English  language,  and  confronted  with 
an  EngUsh-speaking  doctor,  question  of  his  in- 
tentional falsehood  in  making  application  httd 
for  the  jnry;  the  policy  providing  that  all  state- 
ments by  insured  "shall,  in  the  absence  of  fraud, 
be  deemed  representations,  and  not  warranties. 

[Ed.  Note. — ^For  other  cases,  see  Insurance, 
Cent  Dig.  ${  1737-1740,  1758-1760.] 

5.  Inbtibancb  9=>559(2)  —  Failxtbe  to  File 
Proof  of  Death— Waives— Denial  of  Lia- 

BIUTT. 

The  requirement  that  a  beneficiary  file  proof 
of  death  was  waived,  where  insurer  wrote  bene- 
ficiary's lawyer  that  they  did  not  propose  to  pay 
because  the  policy  was  procured  in  fraud. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  {|  1391,  1392.] 

6.  Appeal  and  Error  ®=3l057(8>— Habmless 
Ebbob— E^CLtJStON  of  Evidence. 

In  action  on  a  life  policy,  error  in  excluding 
prescriptions  tending  to  show  that  deceased  had 
a  disease,  was  harmless,  where  it  might  be  as- 
sumed that  he  did  have  such  disease. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  f  4199.] 

Airpeal  from  Supreme  Court 

Action  by  Glovannlna  Guarrala  against  the 
Metropolitan  Life  Insurance  Company.  Judg- 
ment for  plaintiff,  and  defendant  aftpeala. 
Affirmed. 

On  appeal  from  the  Supreme  Court,  In 
wblch  the  following  per  curiam  was  filed: 

"In  this  case  we  dismissed  the  appeal  on  the 
ground  that  the  printed  case  did  not  set  forth 
the  roles  to  show  cause  why  a  new  trial  should 
not  be  granted  in  the  district  court  and  espe- 
cially whether  such  rules  reserved  the  points  of 
law  taken  at  the  trial;  the  statute  requiring 
that  there  be  such  a  reservation  to  support  an 
appeal.  G  S.  p.  2017,  |  213f.  The  petition  for 
rehearing  sets  up  that  such  reservation  was 
made,  and  on  June  26th  we  heard  counsel,  and 
the  cases  were  reinstated  so  far  as  omission  of 
the  rales  to  show  cause  and  reservations  are  con- 
cerned; bnt  there  remained  the  motion  to  dia- 
miss  the  appeal  made  on  the  further  pound  that 
the  state  of  the  case  was  not  filed  within  the  15 
days  specified  in  the  statute.  If  this  point  is  re- 
solved against  the  respondent,  then  we  consider 
the  merits  of  the  appeal. 

[I]  "We  think  the  failure  to  file  the  transcript 
within  16  days  after  judgment  was  waived  by 
the  service  and  acceptance  of  the  printed  state 
of  the  case  and  the  limitations  of  objection  there- 
to that  certain  docnmentary  evidence  had  not 
been  printed  which  was  afterwards  supplied. 
Taldng  this  view,  the  application  to  dismiss  fails, 
and  we  are  brought  to  a  consideration  of  the 
merits. 


[2]  "The  defense  was  breach  of  warranty,  nds- 
representation,  and  concealment  of  facts,  and  the 
errors  relate  to  the  refusal  of  Uie  court  to  direct 
a  verdict  and  also  instructions  to  the  jury. 
Among  the  statements  subscribed  by  insured  in 
the  application  were  declarations  that  he  had 
not  had  bronchitis  and  whether  he  had  been  at- 
tended by  a  doctor  within  a  certain  period. 
These  statements  were  for  the  most  part  printed, 
and  stated  that  he  hud  not  had  various  diseases 
catalogued  therein  'except '  (and  here  fol- 
lows a  blank  for  a  statement  of  the  exceptions). 
No  exceptions  were  stated,  and  the  claim  is  that 
this  amounted  to  a  definite  statement  on  his  part 
that  he  had  not  had  any  of  the  diseases  mention- 
ed. On  the  other  hand,  it  is  urged  that  they 
were  simply  incomplete  answers  which  were  ac- 
cepted by  the  company  without  any  insistence 
upon  completion.  The  trial  court  so  held  in  de- 
nying a  motion  to  direct  We  do  not  take  this 
view,  but,  on  the  contrary,  think  that  the  si- 
lence with  respect  to  the  exception  should  prop- 
erly be  taken  as  a  statement  that  there  is  no 
exception ;  and  consequently,  if  the  insured  had 
in  fact  had  one  or  another  of  the  diseases,  there 
was  a  falne  statement  with  respect  to  that  fact 

[3,  4]  "The  question  then  is  with  reference  to 
the  effect  of  the  statement.  If  it  was  a  warran- 
ty, the  policy  falls;  if  it  was  only  a  misrepre- 
sentation, the  question  of  intentional  falsehood 
becomes  material.  The  policy  says:  'All  state- 
ments by  the  insured  shall,  in  the  absence  of 
fraud,  be  deemed  representations  and  not  war- 
ranties.' The  result  of  this  seems  to  be  that 
they  are  made  tlie  legal  equivalent  of  representa- 
tions in  any  case,  and  we  must  look  for  fraud  in 
order  to  vitiate  the  policy.  Here  we  are  met  by 
the  fact  that  the  insured  was  an  Italian,  appar- 
ently not  well  acquainted  with  the  English  lan- 
guage, confronted  with  an  English-speaking  doc- 
tor, who  probably  conducted  the  examination  in 
the  usual  more  or  less  perfunctory  manner  and 
had  tbe  insured  sign  the  paper  more  or  less  as  a 
matter  of  form.  The  judge  left  it  to  the  jury  to 
say  whether  there  had  been  intentional  misrep- 
resentation. We  are  inclined  to  think  that  this 
course  was  right.  There  is  little  doubt  that 
the  deceased  had  consumption,  or  that  be  prob- 
ably had  chronic  bronchitis  and  probably  otiier 
diseases,  but  the  terms  of  tbe  policy  require  the 
company  to  show  that  he  bad  intentionally  mis- 
represented these  matters,  and  we  do  not  think 
that  this  was  shown  as  a  court  question.  This 
disposes  of  the  motion  to  direct. 

[5]  "The  next  iwint  is  that  the  plaintiff  failed 
to  show  any  proof  of  death.  There  was  no  for- 
mal proof  of  it  but  the  plaintiff  relied  on  a  let- 
ter of  the  insurance  company  declining  to  pay 
the  policy  because  it  had  been  procured  in  fraud 
or  misrepresentation,  and  claimed  that  this  was 
a  waiver  of  the  proof  of  death.  This  is  attacked 
on  the  anthority  of  an  unreported  opinion  of  a 
justice  in  this  court  which  is  quoted  in  the  brief. 
We  do  not  know  the  facts  in  that  case,  and  can- 
not tell  whether  it  covers  the  present  situation, 
but  are  inclined  to  say  that  under  Uie  terms  of 
this  iwlicy  such  a  letter  may  be  considered  a 
waiver.  The  policy  fixes  no  time  in  which  the 
proofs  of  death  are  to  be  submitted,  so  that  they 
could  be  presented  within  any  reasonable  time; 
and  consequently,  when  some  three  months  after 
the  death  the  lawyer  wrote  to  the  company  ask- 
ing whether  the  claim  was  going  to  be  paid,  and 
the  company  said,  'No;  we  don't  propose  to  pay, 
because  the  policy  was  procured  in  fraud,'  it 
should  not  be  held  necessary  for  the  claimant 
thereafter  to  pat  in  proofs  which  would  be  en- 
tirely nugatory. 

"The  next  point  is  that  the  judge  erred  in 
charging  the  jury  in  effect  that  in  order  to  viti- 
ate the  policy  it  must  appear  that  the  deceased 
was  knowingly  stating  a  falsehood  to  the  com- 
pany.   This  is  in  line  with  what  has  been  said. 


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[6]  "Finally  It  b  stated  that  there  was  error 
in  excluding'  certain  prescriptions.  These,  if  ev- 
idential, would  have  tended  to  show  that  the  de- 
ceased had  in  tact  consumption  or  bronchitis  or 
what  not.  In  the  view  we  take  of  the  case  it 
may  be  assumed  that  he  did,  and  on  that  as- 
sumption the  error  would  become  harmless. 

"These  views  lead  to  an  affirmance  of  the 
judgment." 

McCarter  &  English,  of  Newark,  for  appel- 
lant. John  J.  Stamler,  of  Elizabeth,  for  ap- 
pellee. 

PER  CURIAM.  The  judgment  under  re- 
view will  be  affirmed  for  the  reasons  set 
forth  In  the  opinion  of  the  Supreme  Contt. 


(90  N.  J.  Law,  686) 

GUARRAIA  v.  METROPOLITAN  LXPH  INS. 
CO.    (No.  121.) 

(Court  of  Errors  and  Appeals  of  Mew  Jersey. 
June  18,  1817.) 

Appeal  from  Supreme  Court. 

Action  by  Giovannina  Guarraia  against  the 
Metropolitan  Life  Insurance  Company.  Judg- 
ment for  plaintiff,  and  defendant  appeals.  Af- 
firmed. 

McCarter  &  English,  of  Newark,  for  appel- 
lant John  J.  Stamler,  of  Elizabeth,  for  appel- 
lee. 

PER  CURIAM.  The  judgment  under  review 
will  be  afiSrmed  for  the  reasons  given  In  the 
per  curiam  in  Guarraia  v.  Metropolitan  Life  Ins. 
Co.,  No.  120  of  the  present  term  of  this  court, 
101  Atl.  298. 

m  N.  J.  Kq.  504) 

CLARK  et  aL  v.  CLARK  et  aL    (So.  87/403.) 

(Court  of  ChancoTy  of  New  Jersey.     May  14, 
1917.) 

1.  Trusts  «=>306— Aocountiito— Bvidkncs— 
Pbocbsds  of  Salks. 

In  a  suit  by  the  executors  of  a  father 
against  those  of  a  son  for  an  accounting,  the 
son's  estate  was  properly  charged  with  the  con- 
sideration for  the  sale  of  land  notwithstanding 
that  the  money  was  not  traced  into  the  son's 
handsj  the  transfer,  amount,  and  exclusive  ne- 
gotiation by  the  son  being  admitted. 

[BA.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  I  428.1 

2.  Evidence  «=>357  —  Leitebs  —  Admissi- 

BIUTT. 

In  a  suit  by  the  executors  of  a  father  against 
those  of  his  son  for  an  accounting  wherein  It 
was  sought  to  charge  the  son's  estate  with  the 
proceeds  of  a  mortgage  cashed  by  the  son  let- 
ters from  the  father  concerning  the  mortgage, 
although  unanswered,  held  admissible. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  $f  1492-1499.) 

3.  Gifts  <8=»49(6)— Bpbden  of  Pboof. 

In  a  suit  to  charge  a  son's  estate  with  the 
proceeds  of  a  mortgage  assigned  to  him  b^  the 
father,  the  assignment  alone  was  not  sufficient 
to  show  a  gift  of  the  mortgage,  the  burden, 
where  fiduciary  relations  exist,  being  upon  the 
person  in  whom  confidence  is  reposed  to  show 
that  the  transaction  was  fair  and  well  under- 
stood. 

[Ed.  Note. — For  other  cases,  see  Gifts,  (Tent 
Dig.  i  95.] 


4.  Trusts  «=9308  —  AccouifTiRo  —  RBi.iEr  — 
Proceeds  of  Saus. 

In  a  suit  for  an  accounting  by  the  execu- 
tors of  a  father,  his  son's  estate  was  properly 
charged  with  the  proceeds  of  land  sold,  where 
the  land  was  shown  to  have  belonged  to  tho 
father,  and  that  the  son  always  recognized  him 
as  the  beneficial  owner. 

[Ed.  Note.— For  other  cases,  see  Trusts,  CTent 
Dig.  I  428.) 

5.  Trusts  ^=988  —  AccouNTnra  —  Evidenck 
—Gifts. 

In  a  suit  to  charge  a  son's  ofltate  with  the 
proceeds  of  a  sale  of  the  father's  land  by  abso- 
lute deed  for  the  uses  of  the  grantee,  proof  of 
a  resulting  trust  is  admissible,  since,  where  a 
fiduciary  relation  of  trust  and  confidence  ex- 
ists, the  rules  excluding  oral  testimony  to  vary 
a  written  instrument  are  superseded  by  the 
equitable  rule  that  a  conveyance  will  not  be  up- 
held as  a  gift  unless  it  affirmatively  appears 
that  it  was  so  intended  and  understood. 

[Ed.  Note. — For  other  cases,  see  Trusts,  Cent 
Dig.  M  180,  131,  133.] 

6.  Trusts  €=»321  —  Acoountino  —  Credits 
—Compensation. 

In  a  suit  for  an  accounting  by  the  execu- 
tors of  a  father  against  his  son's  estate,  com- 
pensation was  not  allowed  for  the  son's  services 
as  manager  of  the  father's  property  where  the 
son  had  despoiled  the  estate  of  nearly  one-third 
of  its  assets. 

rSd.  Note.— For  other  cases,  see  Trusts,  <3ent. 
Dfe.  §{  46ft-473.] 

7.  Trusts  e=»309— Accounting— Conversion 
— Interest. 

Where  a  son  had  converted  a  large  share 
of  his  father's  estate,  on  a  decree  in  accounting 
by  the  father's  executors,  interest  at  the  legal 
rate  should  be  charged  from  the  date  of  each 
conversion  and  compounded  as  a  punishment. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  f  428.] 

Bill  by  Samuel  A.  CSark  and  others  against 
Maria  S.  Clark  and  others  for  an  accounting. 
On  exceptions  by  both  parties  to  a  master's 
Veport,  Defendant's  exceptions  overruled, 
complainant's  exceptions  sustained. 

S.  W.  Eldrldge,  of  Elizabeth,  for  complain- 
ants. Foster  M.  Voorhees,  of  Elizabeth,  for 
defendants. 

BACKES,  V.  O.  This  bill  Is  for  an  account 
and  was  referred  to  a  master,  whose  report 
has  been  excepted  to  In  the  particulars  here> 
after  mentioned. 

Amos  Clark  died  October  30,  1812,  at  the 
age  of  82,  in  Boston,  where  in  the  latter 
years  of  his  life  he  made  his  home.  He  had 
large  real  estate  holdings  In  Elizabeth  and 
Union  county,  and  some  In  Tarrytown,  N.  T. 
His  son,  William  A.  Clark,  had  the  sole  and 
exclusive  management  and  control  of  his 
property,  attending  to  the  collectlout  of  rents, 
and  negotiating  sales  of  the  realty,  and  han- 
dled bis  financial  affairs  generally.  William 
A.  Clark  died  a  year  after  his  father,  and 
this  bill  was  filed  against  his  executors  by 
his  father's  executors  for  an  accounting. 
The  master  was  directed  to  take  an  account- 
ing for  the  period  of  six  years  next  preceding 
the  death  of  Amos  Clark,  and  he  has  re- 
ported  that  during  this  time  William    A. 


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CLARE  T.  CLARK 


301 


dark  received  $229,503.63  and  dlsbarsed 
$173,261.54,  leaving  unaccounted  for  and  due 
to  the  complainants  $56,242.09,  besides  inter- 
est. A  stipulation  was  entered  Into  by  coun- 
sel attesting  the  correctness  of  these  charges 
and  discharges,  reserving  the  items  to  which 
the  present  exceptions  are  directed,  and 
some  others  which  the  master  has  allowed 
and  to  which  no  exceptions  have  been  taken. 

[1]  The  first  and  second  exceptions  are 
to  two  items  of  charges  of  $1,000,  re^jective- 
ly.  These  sums  were  part  consideration 
price  of  the  sales  of  two  tracts  of  land, 
one  to  William  C  Haugaard,  the  other  to  the 
Murray  Hill  Heights  Company.  The  single 
ground  of  objection  Is  that  the  moneys  were 
not  traced  into  the  hands  of  the  agent,  and 
therefore  the  jMtiofs  fall  short  of  the  legal 
requirement.  No  such  du<7  Is  imposed 
upon  the  compla'lnants.  The  transfers  and 
amounts  are  admitted,  and  as  the  son  nego- 
tiated the  sales  ecEclusively,  which  Is  also 
conceded,  the  Inference  Is  inevitable  that  he 
collected  the  proceeds.  Moreover,  the  evi- 
dence satisfactorily  establishes  the  charges 
and  sustains  the  master's  findings. 

[2]  The  third  exception  relates  to  a  charge 
of  $4,556.21,  the  proceeds  of  a  bond  and  mort- 
gage made  to  Amos  dark  by  Dorothy  Mil- 
ler. That  William  A.  Clark  cashed  this 
mortgage  Is  not  disputed.  The  contention 
Is  that  it  was  his  property  by  gift  from  his  fa- 
ther. The  mortgage  was  assigned  by  Amos 
Clark  to  William  A.  Clark  on  March  28, 
1910,  and  by  the  latter  hypothecated  with 
Plalnfleld  Trust  Company  for  a  personal  loan 
of  $3,500  three  days  later,  and  afterwards 
assigned  to  the  Fidelity  Trust  Company. 
One  thousand  dollars  was  paid  on  account  of 
the  loan  out  of  trust  funds,  and  the  balance 
liquidated  by  the  assignee ;  the  surplus  being 
deposited  by  William  A.  Clark  in  bis  trust 
account.  Letters  by  Amos  Clark  to  his  son, 
and  found  In  the  Tatter's  possession,  written 
at  the  time  the  mortgage  was  assigned, 
Mncerning  the  purpose  of  the  assignment, 
and  others  of  much  later  dates,  inquiring  as 
to  the  interest  and  the  disposition,  if  any, 
made  of  the  mortgage,  and  the  application 
by  William  A.  dark  of  part  of  the  proceeds 
to  tbe  credit  of  the  trust  estate,  evinces  be- 
yond peradventure  that  the  assignment  from 
the  father  to  the  son  wns  made  for  conven- 
ience of  sale  or  cancellation,  or  was  procured 
by  the  latter  to  serve  the  ulterior  parpose  to 
which  it  was  put.  For  the  purpose  of  Il- 
luminating the  transaction,  the  letters,  al- 
though unanswered,  were  competent.  State 
V.  MacFarland,  83  N.  J.  Law,  474,  83  Atl. 
«a%  Ann.  Cas.  lftl4B,  782. 

[3]  There  is  another  reason  for  sustaining 
the  charge.  There  Is  no  proof  to  establish 
the  alleged  gift.  The  written  assignment 
alone— and  this  Is  all  the  defendants  rely 
upon— is  not  sufficient    The  rule  Is  that: 

"In  all  transactions  between  persons  occupy- 
ing relations,  whether  legal,  natural,  or  conven- 
tional in   their  origin,   in   which  confidence  is 


naturally  inspired,  is  presumed,  or  in  fact  rea- 
sonably exists,  tbe  burden  of  proof  is  thrown 
upon  the  person  in  whom  the  confidence  is  re- 
posed and  who  has  acquired  an  advantage,  to 
show  affirmatively,  not  only  that  no  deception 
was  practiced  therein,  no  undue  influence  used, 
and  that  all  was  fair,  open,  and  voluntary,  bat 
that  it  was  well  understood."  Hall  v.  Otterson, 
52  N.  J.  Eg.  522,  28  Atl.  907;  Parker  v.  Par- 
ker, 45  N.  J.  Eq.  224,  16  Atl.  537;  Corrigan  v. 
Pironi,  48  N.  J.  Eg.  607,  23  Atl.  355;  Coffey 
V.  Sullivan,  63  N.  J.  Eq.  296,  49  Atl.  620. 

[4]  The  fourth  exception  is  to  a  charge  of 
$17,500,  tbe  proceeds  of  tbe  sale  to  Thomas  A. 
Sperry  of  a  tract  of  land  of  36.54  acres,  and 
of  "the  gristmill  lot  and  the  lot  of  .45  acres" 
adjacent  The  tract  of  36.54  acres  was  con- 
veyed by  Amos  Clark  to  his  son  on  May  29, 
1907,  for  the  consideration  of  $1.  The  title 
to  the  gristmill  lot  and  the  one  adjoining  was 
also  at  one  time  in  Amos  Clark.  The  history 
of  these  lands  is  fully  set  forth  in  the  evi- 
dence and  the  master's  report,  and  it  is  only 
necessary  to  remark  that  it  satisfactorily 
aj)pear8  that  they  at  all  times  belonged  to 
Amos  Clark,  and  that  in  bis  dealings  with 
tbeu  William  A.  Clark  recognized  and  ac- 
knowledged the  beneficial  ownership  of  his 
father. 

[5]  The  grLstmlll  lot  and  the  .45  acre  lot 
formed  an  inconsequential  part  of  tbe  sale 
to  Sperry,  and  was  not  adverted  to  in 
the  argument,  except  to  reflect  William  A. 
Clark's  ownership  of  the  larger  tract  con- 
veyed to  him  by  his  father.  It  is  not  pretend- 
ed that  any  consideration  was  paid  for  this 
latter  conveyance,  but  the  contention  is  that, 
as  the  deed  Is  absolute  on  Its  face  and  de- 
claims the  uses  to  be  for  the  grantee,  proof 
of  a  resulting  trust  is  inadmissible,  and  there- 
fore, and  because  there  was  none  of  an  ex- 
press trust  within  the  statute  of  frauds,  the 
defendants  cannot  be  called  upon  to  account 
This  would  ordinarily  be  so.  Fretz  v.  Roth, 
68  N.  3.  £}q.  516,  59  AtL  676.  But  where  a 
fiduciary  relation  of  trust  and  confidence  ex- 
ists, the  rules  of  evidence  which  exclude  oral 
testimony  to  vary  a  written  document  are 
superseded  by  the  equitable  rule  above  quot- 
ed from  the  Otterson  Case,  to  the  effect  that 
a  conveyance  of  land  will  not  be  upheld  as  a 
gift  unless  it  Is  shown  affirmatively  that 
it  was  so  intended  and  understood.  There 
Is  no  such  evidence. 

[S]  Fifth  exception:  Tbe  master  allowed 
$15,000  commissions  for  services,  at  the  rate 
of  $2,500  a  year,  to  which  both  complainants 
and  defendants  exccjit,  the  former  contend- 
ing that  none  should  have  been  allowed,  or, 
at  the  most,  $2,000  per  annum,  while  the  de- 
fendants claim  that  the  services  were  reason- 
ably worth  $5,000  a  year. 

There  is  no  evidence  of  an .  e^^ress  con- 
tract to  remunerate.  The  declaration  of  Wil- 
liam A.  Clark  that  bis  father  was  paying  him 
$2,000  a  year  is  not  competent  to  prove  an 
agreemoit,  although  It  might  be  considered  In 
limiting  the  amount  of  compensation. 

The  character  of  the  services  and  the  dr- 


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cumstanoes  under  which  they  were  rendered 
were  such  as  to  Imply  a  promise  to  pay  for 
them.  Although  they  were  performed  by  the 
son  for  the  father,  they  were  not  rendered  as 
members  of  the  same  bonsehold  In  the  usual 
family  relationship,  and  no  countervailing 
presumption  arises  that  they  were  discharged 
gratuitously.  Dlsbrow  t.  Durand,  54  N.  J. 
Law,  343,  24  AtL  645,  33  Am.  St  Rep.  678. 
Compensation,  however.  Is  allowed  only 
when  the  servant  has  faithfully  performed 
his  duty.  Here  the  son  was  guilty  of  most 
flagrant  abuses  of  his  trust  He  kept  no 
accounts,  mingled  the  funds  with  his  own, 
from  time  to  time  appropriated  them  to  his 
own  use  and  finished  with  a  defalcation  of 
over  $71,000.  This  deficiency  covers  a  period 
of  six  years  only,  and  how  much  more  of  the 
estate  was  absorbed  before  and  from  the  time 
the  trust  began  can  only  be  conjectured. 
1  am  unable  to  comprehend  upon  what  theory, 
with  principle  and  authority  against  It,  the 
master  arrived  at  his  conclusion.  It  was  sug- 
gested that  Amos  Clark  was  habitually  care- 
less in  the  matter  of  accounts,  and  especially 
BO  with  reference  to  his  son's,  and  that  this 
ruling  passion  Infiuenced  the  latter  and  was 
In  a  laige  measure  responsible  for  his  failure 
to  keep  a  faithful  record  of  his  stewardship. 
Indeed,  I  observe  that  the  master  Indulges  In 
some  palliative  sentiments  along  this  line, 
but  I  fall  to  recogDize  any  heritable  quality 
in  the  parental  trait  The  chaotic  and  de- 
plorable condition  In  which  the  accounts  were 
found,  and  which  required  the  services  of 
two  experts  to  extricate  and  bring  to  an  intel- 
ligent understanding,  was  undoubtedly  due 
to  an  Indifference  to  duty ;  but  the  toleration 
of  the  father  was  not  a  license  to  plunder. 
The  relation  was  most  Intimately  confiden- 
tial, intensified  by  a  father's  high  esteem  and 
great  natural  love  and  affection,  and  thus, 
aged  and  helpless,  he  Intrusted,  all  of  his 
material  Interests  to  his  son,  relying  Implicit- 
ly upon  bis  fidelity,  In  unbounded  assurance 
that  all  was  well  husbanded  and  conserved. 
And  this  confidence  was  repaid  by  despoil- 
ing the  estate  of  nearly  one-third  of  its  as- 
sets, at  the  rate  approximately  of  $1,000  a 
month;  and  during  a  period  when  the  fa- 
ther's allowance  for  the  support  of  his  family, 
consisting  of  himself,  wife  and  niece,  was  re- 
duced to  $200  a  month,  presumably  by  ar- 
rangement. In  the  bell^  that  that  was  all 
that  the  estate  could  afford,  and  when  the 
son  knew  that  his  father  was  frequently  dis- 
tressed for  want  of  money.  Oomtjensation, 
under  such  circumstances,  would  reward 
faithlessness  and  duplicity  and  Is  unthink- 
able. For  offenses  venial  In  comparison  com- 
missions have  been  uniformly  denied,  as  for 
failure  to  keep  accurate  records  or  to  render 
an  account,  permitting  trust  funds  to  lie  idle 
or  remain  unsecured,  or  without  distinct  and 
separate  Investment,  for  mingling  them  with 
one's  own  funds,  etc.    The  cases  are  collected 


in  R«  Walsh's  Estate,  80  N.  J.  Eg.  5KS,  74 
AtL  663.  The  rule  has  also  been  applied 
where  the  compensation  was  fixed  by  agree- 
ment Ridgeway  v.  Ludlam,  7  N.  J.  Bq.  123. 
See,  also,  Wright  ▼.  Smith,  23  N.  J.  Eq.  106. 

[7]  Sixth  exception:  The  master  reported 
that  the  interest  upon  the  amount  of  the  de- 
falcation be  computed  at  the  rate  of  4  per 
cent  from  the  death  of  Amos  Clark.  There 
is  no  room  for  compassion  In  this  case.  The 
master  should  have  calculated  Interest  at  the 
legal  rate.  Exact  justice  demands  tliat  in- 
terest be  reckoned  from  the  date  of  each  aoa- 
version,  and  compounded  as  a  punlshm^it 
Frey  v.  Frey,  17  N.  J.  Eq.  71.  As  the  excep- 
tion challenges  only  the  rate,  the  report  will 
be  modified  to  that  extent 

The  defendants'  exceptions  will  be  overrul- 
ed, and  the  complainants'  exceptions  sustain- 
ed, with  costs.  The  master's  report  will  be 
confirmed,  except  as  to  the  compensation  and 
Interest,  and  as  to  these  It  will  be  corrected, 
and  a  decree  advised  accordingly. 

(US  He.  Ml) 
LEMAIRE  V.  CROCKETT  et  aL 

(Supreme  Judicial   Court  of  Ifaine.     July  8, 
1917.) 

1.  Statutes  $=»251— Emebgenct  Clause— Po- 
UCB  Commission  —  CoNSTBUCTioN—"HoMB 
Rule." 

Under  Const  art  81,  |  16,  providing  an 
emergency  bill  shall  include  only  such  measures 
as  are  immediately  necessary  for  the  preserva- 
tion of  the  public  peace,  health,  or  safety,  and 
shall  not  Include  an  infringement  of  the  right 
of  home  rule  for  municipalities,  as  Prlv.  &  Sp. 
Laws  1880,  c.  293,  delegated  to  the  city  of  Lew- 
iston  the  appointment  of  its  own  police  force, 
and  has  not  been  modified  or  repealed,  the  emer- 
gency clause  attached  to  act  of  1917  approved 
March  8,  1917,  providing  a  police  commission 
for  the  city  of  Lewiston.  Is  invalid,  as  infringing 
the  right  of  "home  rule,"  which  is  "the  right  of 
self-government  as  to  local  affairs,"  since  the 
fact  that,  at  the  time  the  infringing  act  is  pass- 
ed, the  right  is  lodged  with  the  municipal  gov- 
ernment, is  sufficient  to  forbid  the  attaching  of 
the  emergency  clause. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  i  832. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  Series,  Home  Rulej 

2.  Statutes  «=>64(4)— Vauditt— Bwwjt  or 
Pabtial  Invalimtt. 

As  an  act  creating  a  police  commission  in 
a  city  and  an  emergen<^  clause  are  clearly  sep- 
arable, the  act  otherwise  constitutional,  is  not 
afEected  by  the  invalidity  of  the  emergency 
dause,  and  will  take  effect  as  a  nonemergrency 
act  permitting  the  invoking  of  the  referendiuo. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  Sf  61, 195.] 

3.  Quo  Wabsanto  «s»10— Jurisdiction. 

Quo  warranto  would  not  be  the  proper  rem- 
edy by  the  ma^or  of  a  city  against  members  of 
a  police  commission  appointed  under  an  alleged 
invalid  act  where  the  defendants  nre  not  exer- 
cising the  duties  of  an  office  to  which  plaintiff 
claims  tiUe. 

[Ed.  Note.— For  other  cases,  see  Quo  Warran- 
to, Cent  Dig.  fS  10-12.] 


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LiBMAIRB  r.  CROCKETT 


303 


1  ImrnroTioif  «=b8SCZ)— Jcbibdiotior— Adx- 

QUATK  REUEDT  at  LaW. 

A  bill  in  equity,  brought  by  the  mayor  of 
I  city,  would  lie  to  test  the  validity  of  an  emer- 
gency act  appointing  police  commissioners,  aa 
plaintiff  has  no  adequate  remedy  at  law. 

[Ed.  Notc.^For  other  cases,  see  Injunction, 
Cent  Dig.  {  156.] 

Appeal  from  Supreme  Judicial  Court,  An- 
droscoggin County,  In  Equity. 

Action  by  Charles  P.  Lemalre  against 
Ralpli  W.  Crockett  and  others.  From  a 
Judgment  overruling  a  demurrer  to  and  dis- 
missing the  bin,  plaintiff  appeals.  Bill  and 
appeal  sustained,  and  decree  ordered  In  ac- 
cordance with  opinion. 

Argued  before  CORNISH,  O.  J.,  and 
SPEAR,  KING,  BIRD,  HANSON,  and  MAD- 
IGAN,  JJ. 

McGUllcuddy  &  Morey,  of  Lewlston,  for 
appellant  Ralph  W.  Crockett,  of  Lewlston, 
for  appellees. 

CORNISH,  a  J.  This  Is  a  bill  In  equity, 
brought  by  the  plaintiff,  as  mayor  of  the  city 
of  Lewlston,  against  the  three  members  of 
the  police  commission  appointed  under  an  act 
of  the  Legislature  approved  March  8,  1917, 
entitled  "An  act  to  provide  a  police  conunls- 
sion  toT  the  city  of  Lewlston  and  to  promote 
the  efficiency  of  the  police  department  there- 
of." The  bill  asks  this  court  to  declare  that 
the  Legislature  had  no  constitutional  power 
to  pass  the  act  with  the  emergency  clause 
attached,  that  the  act  Is  rendered  thereby 
invalid,  that  all  appointments  already  made 
by  the  defendants  are  of  no  effect,  and  that 
the  defendants  be  enjoined  from  Interfering 
with,  controlling,  or  directing  the  police 
fi>rce  of  the  dty  of  Lewlston. 

The  defendants  filed  an  answer  to  the  bill, 
with  a  demurrer  inserted  therein.  The  sit- 
ting Justice  ruled  as  follows: 

"To  sustain  this  bill  would  be  to  rule  In  effect 
that  the  police  commission  act  is  unconstitution- 
al, in  that  it  infringes  the  right  of  home  rule. 
But,  according  to  the  established  and  uniform 
course  of  procedure  in  this  state,  a  statute  will 
be  presumed  by  a  single  justice  to  be  constitu- 
tional until  the  contrary  has  been  established 
by  the  law  court" 

He  accordingly  ruled  pro  forma  that  the 
act  was  constitutional,  and  dismissed  the 
bill,  at  the  same  time  overruling  the  demur- 
rer. 

Two  questions  are  Involved :  First,  wheth- 
er the  act  violates  section  16  of  the  thlr^- 
first  amendment  to  the  Constitution,  that  an 
emergency  bill  shall  not  Include  an  Infringe- 
ment of  the  light  of  home  rule  for  munici- 
palities; second.  If  It  Is  such  a  violation, 
whether  the  act  Is  wholly  unconstitutional, 
or  only  the  emergency  clause  is  invalid,  leav- 
ing the  act  itself  valid,  and  subject  to  the 
referendum,  If  Invoked. 

Section  16  of  article  31  of  the  Constitution 
of  this  state,  adopted  by  the  people  In  1908, 
and    commonly    known    as    the    emergency 


daose  of  the  initiative  and  referoidam  pro- 
vides as  foUows: 

"Sec.  16.  No  act  or  Joint  resolution  of  the 
Legislature,  except  such  orders  or  resolutions 
as  pertain  solely  to  facilitating  the  performance 
of  the  business  of  the  Legislature,  of  either 
branch,  or  of  any  committee  or  officer  thereof, 
or  appropriate  money  therefor  or  for  the  pay- 
ment of  salaries  fixed  by  law,  shall  take  effect 
until  ninety  days  after  the  recess  of  the  Leg- 
islature passing  it  unless  in  case  of  emergency 
(which  with  the  facts  constituting  the  emer- 
gency shall  be  expressed  in  the  preamble  of  the 
act),  the  Legislature  shall,  by  a  vote  of  two- 
thirds  of  all  the  members  elected  to  each  house, 
otherwise  direct  An  emergency  bill  shall  in- 
clude only  such  measures  as  are  immediately 
necessary  for  the  preservation  of  the  public 
peace,  health  or  safety  and  shall  not  include 
(1)  an  infringement  of  ue  right  of  home  rule  for 
municipalities,"  etc. 

The  last  clause  Is  the  one  vitally  involved 
here.  Did  the  act  creating  this  police  com- 
mission, and  taking  the  entire  management 
and  control  of  the  police  department  of  the 
city  of  Lewlston  away  from  the  municipal 
officers,  where  this  power  had  resided  since 
1880,  and  giving  It  to  a  commission  of  three 
appointed  by  the  Governor,  constitute  an  in- 
fringement of  the  right  of  home  rule,  as  pro- 
hibited in  the  Constitution?  If  It  did,  the 
Legislature  was  expressly  prohibited  by  the 
Constitution  from  attaching  to  it  the  emer- 
gency clause,  thereby  taking  from  the  people 
the  right  to  Invoke  the  referendum,  and 
causing  the  act  to  go  into  effect  immediately 
upon  its  approval  by  the  Governor. 

[1]  In  our  opinion,  this  act  did  infringe 
upon  the  right  of  home  rule  under  the  facts 
of  this  case,  and  therefore  the  emergency 
clause  was  Invalid. 

The  Constitution  of  this  state  confers  up- 
on the  Legislature — 

"full  power  to  make  and  establish  all  reasonable 
laws  and  regulations  for  the  defense  and  benefit 
of  the  people  of  this  state,  not  repugnant  to  this 
Constitution,  nor  to  that  of  the  United  States." 
Article  4,  pt  3,  {  L 

As  was  said  in  the  Opinion  of  the  Justices, 
99  Me.  631,  60  AtL  85: 

"One  of  the  main  purposes  of  this  general 
grant  of  power  was  to  vest  in  the  Legislature  a 
superintending  and  controlling  authority,  under 
and  by  virtue  of  which  they  might  enact  all 
laws,  not  repu^ant  to  the  Constitution,  of  a 
police  and  municipal  nature,  and  necessary  to 
the  due  regulation  of  the  internal  affairs  of  the 
commonwealth." 

The  exercise  of  such  a  power  is  absolutely 
indispensable  in  a  well-governed  community. 

A  necessary  corollary  to  this  fundamental 
proposition  is  this:  That  the  Legislature  has 
the  constitutional  power  to  designate  the  in- 
strumentality which  shall  execute  and  carry 
into  effect  the  laws  made  for  the  benefit  of 
the  people  under  this  section.  It  may  In- 
trust their  execution  to  a  board  created  by 
itself  and  to  be  appointed  in  a  designated 
way,  or  to  the  municipality  Itself  where  the 
power  is  to  be  executed.  The  latter  is  the 
more  common  method.  But  having  adopted 
one  method,  the  Legislature  is  not  forever 


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(Me. 


bound  thereby,  but  may  subetltute  another, 
whenever  It  sees  fit  Ck)mrnonwealth  v. 
Plalsted,  148  Mass.  375-S86,  19  N.  E.  224,  2 
L.  R.  A.  142, 12  Am.  St  Rep.  566. 

In  this  Instance  It  Is  obvious  that,  prior  to 
passage  of  the  police  commission  bill  in  1917, 
the  right  to  regulate  and  control  the  police 
department  of  Lewiston  had  been  delegated 
by  the  Legislature  to  the  city  Itself.  It  had 
been  made  a  matter  of  local  self-government, 
which  is  but  another  name  for  home  rule. 
"Home  rule"  has  been  defined  to  be,  what  the 
term  itself  clearly  Indicates,  "the  right  of 
self-government  as  to  local  affairs."  Words 
and  Phrases,  Second  Series,  p.  902. 

"Home  rale  means  that,  as  to  the  affairs  of 
a  municipality,  which  affects  the  relation  of  citi- 
zens with  their  local  government,  they  shall  be 
freed  from  state  interference,  regulation,  and 
control ;  that  the  system  of  public  Improve- 
ments, the  building  of  streets  and  alleys,  the 
appointment  of  officers,  the  designation  of  their 
duties  and  how  they  shall  be  performed,  and 
aU  other  matters  purely  of  local  interest,  ad- 
vantage, and  convenience,  shall  be  left  to  the  peo- 
Sle  for  their  own  determination."  People  v. 
ohnson,  34  Colo.  143,  86  Pac.  233. 

It  is  true,  as  was  said  in  Andrews  v.  King, 
77  Me.  224,  that  the  officers  in  the  police  dfr* 
partment  are  essentially  state  ofBcers,  in, 
that  It  is  their  duty  to  preserve  the  public 
peace,  the  peace  of  the  state,  and  the  people 
of  the  whole  state  are  interested  to  have 
such  legislation  as  will  secure  the  most  ef- 
ficient administration  of  the  department. 
What  that  legislation  shall  be,  however,  is 
for  the  Legislature  to  determine,  and,  aa  the 
court  also  said  In  the  same  opinion,  while  the 
appointment  is  usually  delegated  to  the  mu- 
nicipal government.  It  Is  competent  for  the 
Legislature  to  Intrust  It  to  the  Governor. 

In  the  case  at  bar  this  power  had  long 
prior  to  1917  been  delegated  to  the  municipal 
government 

By  chapter  293  of  the  Private  and  Special 
Laws  of  1880,  entitled  "An  act  to  promote  the 
efficiency  of  the  police  force  of  the  city  of 
Lewiston,"  it  was  provided  that  the  police 
officers  of  that  city,  including  the  marshal 
and  deputy  marshal,  should  be  appointed  by 
the  mayor  with  the  advice  and  consent  of 
the  aldermen,  and  the  mayor  was  given  the 
power  to  suspend  any  policeman,  which  sus- 
pension should  be  in  force  untU  the  next 
meeting  of  the  aldermen.  By  this  act  the 
Legislature  delegated  to  the  municipality  the 
appointment  of  its  own  police  force  and  con- 
ferred upon  It  the  sole  right  to  administer 
the  affairs  of  the  police  department  So  long 
as  that  right,  so  delegated,  continued,  and 
that  act  remained  unmodifled  and  unrepeal- 
ed, the  city  of  Lewiston  had  the  right  of 
home  rule  so  far  as  its  police  department 
was  concerned.  The  Legislature  still  bad 
the  power  to  withdraw  that  right,  and  confer 
It  upon  some  other  board  or  commission,  as 
it  did  by  the  act  of  1917  under  considera- 
tion ;  but,  so  long  as  the  act  of  1880  remain- 


ed in  force,  the  right  of  local  self-government 
in  the  police  department  existed.  This  right 
of  home  rule  is  not,  as  we  have  seen,  and 
need  not  be,  absolute  and  Indefeasible,  in 
order  to  bring  its  infringement  as  an  emer- 
gency  act  within  the  inhibition  of  section  16. 
If  at  the  time  the  infringing  act  is  passed 
the  right  is  lodged  with  the  municipal  gov- 
ernment, that  is  sufficient  to  forbid  the  at- 
taching of  an  emergency  clause,  and  that  was 
the  situation  here. 

That  the  commission  act  infringed  ujmn 
the  previously  delegated  right  of  local  self- 
government  Is  obvious.  It  took  the  control 
of  the  police  department  from  the  munici- 
pality, and  conferred  it  upon  a  commission 
appointed  by  the  Governor,  in  express  and 
decisive  terms.  Section  4  of  the  act  reads 
as  follows: 

"The  board  of  police  commissionetB  hereby 
created  shall  have  full  power  and  authority, 
subject  to  the  provisions  of  this  act,  to  organ- 
ize and  establisn  the  police  force  of  the  dty  of 
Lewiston  and  to  make  all  rules  and  regulations 
for  the  government,  control  and  efficiency  of  the 
same.  Said  board  shall  have  and  exercise  all 
the  ^wers  and  be  charged  with  all  the  duties 
relative  to  the  organization,  appointment  and 
control  of  said  police  force  now  conferred  or 
imposed  upon  the  mayor,  the  municipal  officers 
or  the  city  council  of  Lewiston,  and  such  other 
powers  as  are  given  them  by  the  terms  of  this 
act" 

The  Legislature  had  the  constitutional 
right  to  moke  this  transfer,  but  section  16 
of  the  thlrty-flrst  article  expressly  forbids  an 
emergency  clause  to  be  attached  to  such  a 
bill.  There  is  a  clear  distinction,  which  must 
not  be  overlooked,  between  the  legislative 
power  to  pass  the  act  and  the  power  to  pass 
it  as  an  emergency  measure.  The  first  is 
permitted;  the  second  is  prohibited.  The 
attempt  to  do  so  In  this  case  was  futile. 
The  emergency  clause  is  clearly  invalid. 

[2]  This  invalidity,  however,  affects  only 
emergency  clause  and  the  date  when  the  law 
may  take  effect  Instead  of  becoming  a  law 
immediately  upon  approval  by  the  Governor, 
it  will  not  take  effect  until  90  days  after  the 
recess  of  the  Legislature,  thus  becoming  a 
nonemergency  act,  and  permitting,  In  the 
meantime,  the  Invoking  of  the  referendum. 
The  act  itself  is  valid.  It  was  within  tbe 
constitutional  povrer  of  the  Legislature  to 
pass  it  The  emergency  clause  is  invalid. 
The  Legislature  was  expressly  prohibited 
from  attaching  It  The  two  are  clearly  sep- 
arable. The  one  stands;  the  other  falls. 
Riley  V.  Carlco,  27  Okl.  8»-37,  110  Pac.  738. 

[3, 4]  So  far  as  the  demurrer  is  concerned, 
we  would  only  add  that  both  parties  desire 
the  decision  of  the  case  on  its  merits  apart 
from  technicalities.  And  were  technicalities 
to  be  considered  we  think  the  bill  would  lie. 
Quo  warranto  would  not  be  the  proi)er  rem- 
edy, because  the  defendants  are  not  exercis- 
ing the  duties  of  an  office  to  which  the  plain- 
tiff daims  title;  nor  has  the  plaintiff  any 
adequate  and  complete  remedy  at  law.     We 


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DOHBRTT  y.  RUSSELIi 


805 


think  tbe  sitting  Justtoe  did  not  err  In  met- 
iDllng  the  demarrer. 

The  entry  must  be: 

Appeal  sustained. 

Bill  sustained,  with  costs. 

Decree  in  accordance  with  the  opinion. 


(U>  He.  MS) 

DOHERTX  et  aL  V.  BUSSBLU 

(Snpreme  Judicial  Ooort  of  Maine.    July  6, 
1917.) 

L  WlIXS  «=»496— CoNSTBtJCnON— Beneftcia- 
BT. 

Where  a  life  estate  is  devised  to  a  peraon 
named  and  "liis  wife,"  the  identity  of  the  co- 
tenant  is  fixed  as  firmly  as  if  her  individual 
oame  had  been  used. 

[Ed.  Note.— For  otlier  cases,  see  WQls,  Cent 
Dig.  Si  1065,  1066.] 

2.  DivoBCK  ®=s>322— Pbofertt  Riohtb. 

Upon  the  grantins  of  a  divorce  by  a  decree 
which  makes  no  disposition  as  to  the  property 
rights  of  the  parties,  each  holds  the  legal  title 
to  half  of  real  estate  which  was  devised  to  them 
as  cotenants. 

[Ed.    Note. — For    other    cases,    see    Divorce, 
Cent  Dig.  H  822-825.} 

8.  DiTOBCK  «=>322— Pbopkbtt  Rights. 

The  property  rights  of  the  parties  to  a 
divorce  siiit  are  not  affected  by  the  decree  unless 
they  are  brought  before  the  court  in  some  ap- 
propriate manner. 

[Ed.    Note.— For    other    cases,    see    Divorce, 
Cent.  Dig.  H  822-826.] 

4.  Life  IIotates  93>4— TEBKinATiON. 

Where  a  life  estate  is  devised  to  husband 
and  wife  as  cotenants,  the  property  rights  of 
the  wife  are  not  affected  by  her  divorce  and 
remarriage,  nor  by  the  fact  that,  having  de- 
serted her  first  husband,  she  re-enters  into  pos- 
session of  the  property  on  his  death,  accompa- 
nied by  her  second  husband. 

[Ed.  Note.— For  other  cases,  see  Life  Estates, 
Cent  Dig.  H  6-10.1 

6.  Lnrs  Estatks  ig-.il   TramwATioit. 

One  to  whom  a  life  estate  has  been  devised 
as  cotenant  with  her  husband  does  not,  by  aban- 
doning him,  leaving  the  property  in  his  sole  pos- 
session for  23  years,  and  maldng  no  claim  to  it 
during  that  period,  show  an  intention  to  abandon 
her  interest  in  the  real  estate; 

[Ed.  Note.— For  other  cases,  see  Life  Estates, 
Cent  Dig.  «  6-10.] 

8.  Abandonhent    4=32— Natdbb  and    Blb- 

IIZRTS. 

There  can  be  no  abandonment  without  both 
the  intention  to  abandon  and  the  external  act 
hy  which  the  intention  is  carried  into  effect  (cit- 
ing Words  and  Phrases,  Second  Series,  Aban- 
donment). 

[B<d.  Note.— For  other  cases,  see  Abandonment, 
Cent  Dig.  1 1.) 

7.  ABARDONUEnT     «=>6— PbESUUFTIOKS     AND 

Btjbden  of  Pboof. 
An  intention  to  abandon  will  not  be  pre- 
sumed, and  the  bnrden  of  lowing  an  abandon- 
ment rests  on  the  one  asserting  it 

[Ed.   Note. — For   other   cases,   see   Abandon- 
ment Cent  Dig.  {§  7-9.] 

8.  HCBBANO  AND  WiFB  «=3l&— AOVEBSE  POS- 

SKS8I0N— EvrnERCB. 
Where  a  life  estate  is  devised  to  a  husband 
and  wife  as  cotenants,  and  the  husbaud,  after 


the  wife  has  deserted  him,  poeupies  the  whole 
property  as  before,  making  no  daim  to  addition- 
al rights  and  performing  no  act  hostile  to  de- 
fendant's title  except  to  secure  a  divorce  and 
remarry,  his  possession  was  not  adverse. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife.  Cent  Dig.  H  100-106.] 

9.  LUTE  Estates  i8=>8— Advbbse  Possession- 
Dkclaeationb. 

A  life  tenant  cannot,  by  bis  declaration,  acts, 
or  claims  of  a  greater  or  different  estate,  make 
it  adverse  so  as  to  enable  himself,  or  those  claim- 
ing under  him,  to  invoke  the  statute. 

[Ed.  Note.— For  other  cases,  see  life  Estates, 
Cent  Dig.  H  24r-28.] 

10.  Limitation  of  Actionb  «=»1— Natube  of 
Statute. 

All  statutes  of  limitations  are  based  on  the 
theory  of  laches,  and  no  laches  can  be  imputed 
to  one  who  has  no  remedy  or  right  of  action. 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Cent  Dig.  §S  1-3.} 

11.  Tenancy  in  Common  «=»16(2>— Advebsb 
Possession- Actuai,  Ousteb. 

As  between  cotenants,  evidence  of  long  con- 
tinued, visible,  uninterrupted,  and  even  exclu- 
sive occupation  by  one  cotenant  is  not  enough 
to  bar  the  rights  of  the  other  cotenant;  there 
must  be  evidence  from  which  a  putting  out  and 
keeping  out  of  the  other  cotenant  can  he  infer- 
red. 

[Ed.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Cent  Dig.  {  43.] 

12.  Remaindebs  ^s>17(2)— Right  or  Action. 
Remaindermen  cannot  maintain  a  real  ac- 
tion for  entry  upon  land  against  the  life  tenant 
of  such  property. 

[Ed.  Note.— For  other  cases,  see  Remainders, 
Cent  Dig.  |  13;  Limitation  of  Actions,  Cent 
Dig.  I  231.] 

Report  from  Supreme  Judld^  Coart,  Knox 
County,  at  Law. 

Action  by  John  E.  Doherty  and  others 
against  Mary  S.  RusseU.  On  report  Judg- 
ment for  defendant 

Argued  before  SAVAGE,  C.  J.,  and  COR^ 
NIBH,  BIRD,  HALBT,  HANSON,  and  MAD- 
IGAM,  JJ. 

Frank  B.  MlUer,  of  Rockland,  for  plalntlfTs. 
Ii.  M.  Staples,  of  Washington,  Me.,  for  de- 
fendant 


HANSON,  3.  Real  action,  reported  to  this 
court  upon  the  following  agreed  statement  of 
facts: 

"Cornelius  Hanrahan  of  Rockland,  Me.,  died 
April  15,  1893,  testate,  his  last  will  and  testa- 
ment being  duly  proved  and  allowed  by  the  pro- 
twte  court  of  the  county  of  Knox  on  the  third 
Tuesday  of  May,  1893.  The  sixth  and  for^- 
third  items  of  said  will,  and  which  are  the  only 
items  applicable  to  the  purpose  of  this  case, 
are  as  follows: 

"*6th.  I  give,  bequeath  and  devise  to  J.  W. 
Simmons  and  his  wife,  the  use  and  occupancy 
of  the  farm  and  buildings  thereon  where  they 
now  reside,  in  said  South  Thomaston,  for  and 
during  their  natural  lives  and  tbe  survivor  of 
them  for  the  period  of  his  or  her  natural  life, 
and  all  the  stock  and  fanning  tools  on  said  farm 
and  all  fire  wood  and  fuel  on  said  premises  nec- 
essary for  their  family  use.  The  provision,  how- 
ever is  made  to  said  Simmons  and  his  wife  on 
condition  that  they  or  the  survivor  of  them,  shall 


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(Me. 


make  no  strip  or  waste  of  the  wood  land,  nor 
shall  they  or  the  survivor  of  them,  cut  the  same 
for  the  purpose  of  selling  it  in  the  maritet,  and 
said  parties,  Simmons  and  his  wife,  shall  keep 
the  taxes  on  said  farm  and  property  fully 
paid  from  year  to  year,  so  long  as  the  same  may 
be  occupied  by  them  or  either  of  them.' 

"  '43d.  I  give,  bequeath  and  devise  the  rest, 
residue  and  remainder  of  my  estate,  real,  per- 
sonal and  mixed,  wherever  found  and  however 
situated  to  my  sister,  Mary  Doherty  to  have 
and  to  hold  the  same  to  her,  her  lieim  and  as- 
signs forever.' 

No  disposition  of  the  Simmons  farm  at  the 
termination  of  the  life  estate  was  made  by  said 
Hanrahan  in  his  will  other  than  what  appears 
by  said  43rd  item. 

"Mary  Doherty  died  January  14,  1912,  testate, 
and  her  will  has  been  duly  proved  and  allowed 
liy  the  probate  court  of  'said  Knox  county. 
With  the  exception  of  $1  given  to  each  of  her 
several  heirs,  all  her  estate,  both  real  and  per- 
sonal, was  devised  and  bequeathed  to  her  two 
sons,  .Tohn  E.  Doherty  and  Wm.  Doherty,  the 
pluintifTs  in  this  action. 

"John  W.  Simmons  was  in  possession  of  the 
premises  at  the  time  eaid  Hanrahan  will  was 
probated,  and  remained  continuously  in  posscs- 
sioo  until  his  death  on  the  23d  of  April,  1916. 

"On  the  26th  of  September,  1S96,  a  divorce 
was  granted  John  W.  Simmons  from  Mary  S. 
Simmons,  who  was  his  wife  at  the  time  of  the 
oxecution  and  probating  of  the  will  of  said 
Hanrahan  for  the  cause  of  desertion.  Mary  S. 
Simmons  subsequently  contracted  a  marriage 
with  one  Edward  O.  Russell,  with  whom  she 
is  now  living. 

"During  the  month  of  July,  1916,  the  said 
Mary  S.  Russell,  formerly  Mary  S.  Simmons,  en- 
tered upon  the  premises  described  in  full  in  the 
declaration  annexed  to  the  writ  in  this  action, 
<>ut  and  removed  grass  therefrom,  and  under- 
took to  enter  and  occupy  the  buildings  thereon. 

"John  W.  Simmons  remarried  after  the  di- 
vorce decreed  him,  and  was  living  with  his  wife 
im  the  premises  at  the  time  of  his  death.  The 
widow  has  administered  the  estate,  her  first 
and  final  acconnt  having  been  filed  and  aliowed 
by  the  judge  of  probate  of  said  Knox  county. 
Mrs.  Simmons  is  not  now  in  possession  of  the 
premises,  she  having  rtmoved  therefrom  shortly 
after  the  death  of  her  husband." 

The  plaintiffs'  attorney  claims  that  the  de- 
fendant's interest  tn  the  life  estate  was  ex- 
tinguished: (1)  by  desertion  and  subsequent 
remarriage;  or  (2)  by  abandonment  of  the 
premises;  but  we  are  unable  to  adopt  either 
view. 

[1]  The  testator  made  life  tenants  of  bus- 
band  and  wife;  the  language  used  created  a 
life  tenancy  In  one  as  well  as  in  the  other, 
the  husband  by  name,  the  defendant,  by  des- 
ignation as  "bis  wife,"  fixing  her  Identity 
as  firmly  as  If  ber  Indlvidtial  name  had  been 
used  Instead  of  the  words  employed  by  the 
scrivener,  and  no  other  construction  Is  pos- 
sible from  reading  the  whole  will.  The  case 
Is  unique;  nevertheless,  the  principles  in- 
volved In  its  solution  are  well  settled. 

From  the  agreed  facts  It  appears  that  tbe 
defendant  deserted  ber  husband  and  cotenant 
some  23  years  prior  to  tbe  assertion  of  her 
present  claim  to  the  premises,  and  that  her 
husband  thereupon,  for  the  cause  of  deser- 
tion, divorced  her. 

[2]  In  the  absence  of  a  decree  affecting 
her  property  rights  in  the  divorce  proceed- 


ings her  interest  as  a  life  tenant  in  the  prop- 
erty involved  in  the  suit  remained  unaffected 
by  tbe  decree  of  divorce.  Such  decree  ter- 
minated the  marriage  relation.  The  proper- 
ty rights  of  the  bnsband  prior  to  the  divorce 
became  his  individual  property  after  tbe  di- 
vorce, and  the  separate  property  of  the  wife 
became  her  individual  property.  As  to  con- 
veyances to  them  both,  each  holds  tbe  legal 
title  to  one-half  under  such  circumstances. 
5  R.  0.  L.  862,  U  I*  R,  A.  (N.  S.)  103. 

[SI  Tbe  property  rights  of  tbe  parties  are 
not  affected  by  the  decree  imless  they  are 
brought  l>efore  the  court  In  some  appropriate 
manner.  Id.  See  Carey  v.  Mackey,  82  Me. 
516,  20  AtL  84,  9  L.  R.  A.  113,  17  Am.  St 
Rep.  500. 

[4]  As  to  remarriage,  we  are  persuaded 
that,  since  the  conveyance  was  to  her  as  an 
individual,  she  bad  the  right,  divorce  baving 
been  had,  to  remarry,  and  that  such  mar- 
riage did  not  affect  ber  rights  as  a  tenant  for 
life,  and  cotenant  with  her  former  husband. 
Nor  does  ber  remarriage  and  resumption  of 
possession  accompanied  by  her  second  bus- 
band  jeopardize  her  rights  any  more  than 
the  remarriage  and  occupancy  of  the  proper- 
ty by  ber  first  husband  and  his  second  wife 
affected  his  rights.  The  terms  of  the  will  In- 
dicate no  barrier  to  such  act  on  the  part  of 
either,  nor  does  tbe  will  prohibit  the  defend- 
ant taking  possession  the  day  her  hust>and 
died,  and,  if  unmarried,  remarrying  imme- 
diately. It  Is  dear  tliat  anything  lawful  not 
prohibited  by  the  wiU,  the  life  tenant  may 
legally  do. 

Abandonment: 

[S]  The  same  elements  enter  Into  the  ctm- 
sideration  of  counsel's  claim  that  the  "de- 
fendant's life  estate  was  extinguished  by 
abandonment,"  and  our  conclusion  is  reached 
from  a  study  of  the  same  facts,  and  neces- 
sarily so.  The  defendant  did  abandon  her 
husband  and  her  marital  relations,  and  in- 
tended to,  but  did  she  at  the  same  time  In- 
tend to  abandon  ber  property  rights?  That 
question  must  be  answered  clearly  by  the 
facts  in  the  case,  before  tbe  plaintiffs  may 
prevail,  and,  as  found  in  the  claim  to  de- 
sertion and  remarriage,  we  look  in  vain  in 
the  record  to  discover  satisfactory  evidence 
of  an  intention  <»  her  part  to  abandon  ber 
interest  tn  the  real  estate.  The  plaintiffs  In- 
sist that  leaving  the  property  in  the  sole 
possession  of  her  husband  for  23  years,  and 
making  no  claim  during  the  period,  is  conclu- 
sive ui>on  the  question  of  abandonment,  and 
dte  the  following  cases  as  decisive  in  favor 
of  their  position. 

"Abandonment  is  the  relinquishment  of  a 
right,  the  giving  up  of  something  to  which  one 
is  entitled — it  must  be  by  the  owner — without 
being  pressed  by  any  duty,  necessity,  or  utility 
to  himself,  but  simply  because  he  desirea  no 
longer  to  possess  the  thing."  Middle  Creek  Ditch 
Co.  v.  Henry,  15  Mont  558,  39  Pac.  1054,  1058. 

"To  constitute  an  abandonment  of  a  rigbt 
there  must  be  a  dear,  unequivocal,  and  decisive 


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act  of  the  party,  diowlng  a  determinaUon  not  to 
have  the  benefit  intended."  Banks  v.  Banks,  77 
N.  C.  188. 

"There  mast  be  not  only  an  intention  to  aban- 
ilon,  but  an  actual  abandonment"  Stevens  v. 
.Vorfolk.  42  Conn.  377 ;  Hickman  t.  link,  116 
Ma  123,  22  S.  W.  472. 

"A  seisin  once  acquired  is  presumed  to  con- 
tinne  until  it  is  shown  that  there  has  been  an 
ouster  or  disseisin^or  an  abandonment."  iSmitn, 
Adm'r,  v.  Booth  Bros.  Hurricane  Isle  Granite 
Co..  112  Me.  297,  92  AU.  103. 

And  we  adopt  the  citations  as  authority 
here,  and  concur  in  the  conclusions  as  being 
the  settled  law. 

[8, 11  It  is  not  questioned  tliat  abandon- 
ment includes  both  the  intention  to  abandon 
nnd  the  external  act  by  which  the  intention 
is  carried  Into  effect  Cyc.  vol.  1,  p.  4 ;  Liv- 
ermore  v.  White,  74  Me.  452,  43  Am.  Rep. 
600.  In  determining  whether  one  has  aban- 
doned his  property  or  rights,  the  intention  is 
the  first  and  paramount  Inquiry;  there  can 
be  no  abandonment  without  the  Intention  to 
abandon.  1  R.  C.  L.  5.  An  Intention  to  aban- 
don will  not  be  presumed,  and  the  burden  of 
showing  an  abandonment  rests  upon  the  one 
who  asserts  it  1  Qyc.  7.  See  Adams  v.  Hodg- 
klns,  109  Me.  361,  84  Atl.  630,  42  L.  R.  A. 
(N.  S.)  741;  Batchelder  v.  Robbins  et  al.,  96 
.Me.  m,  49  AU.  210;  McLellan  v.  McLellan, 
114  Me.  242,  95  Atl.  1025.  It  wUl  not  be  said 
us  matter  of  law  that  an  absence  from  the 
laud  for  any  qpedfied  time  amounts  to  an 
abandonment,  even  though  such  a  fact  might 
be  strong  evidence  of  abandonment  1  R.  0. 
U  7,  133  Am.  St  Rep.  903,  note. 

Nounser  is  not  of  Itself  sufficient  to  show 
an  abandonment  of  a  right ;  nor  will  neglect 
for  mere  than  20  years  to  assert  a  title  to  an 
undivided  Interest  In  land,  by  one  who  has 
a  valid  title,  operate  as  an  abandonment, 
where  there  Is  no  adverse  possession.  1  Qyc. 
1).  6;  Great  Falls  Co.  v.  Worster,  15  N.  H. 
412;  Llvermore  v.  White,  74  Me.  452,  43  Am. 
Rep.  600;  Adams  v.  Hodgklns,  supra.  -Words 
and  Phrases  (2d  Series)  p.  8;   1  C^c:  1975. 

[I]  Was  there  adverse  possession?  After 
divorce  the  former  spouses  may  ordinarily, 
bold  adversely  to  each  other.  1  R.  O.  L.  756, 
and  cbses  cited.  Mr.  Sluun(»is,  the  husband, 
occupied  the  property  just  the  same  after  the 
separation  as  before.  He  occupied  the  whole 
property  in  d^endant's  absence,  as  he  Itad 
a  right  to  do.  Having  the  right  to  occupy 
the  whole,  what  was  there  left  to  hold  ad- 
versely, what  part  did  he  select  and  deter- 
mine to  hold  in  hostility  to  the  defendant's 
rights?  What  could  he  add  to  his  prior  hold- 
ing and  right  of  occupancy  7 

It  is  difficult  to  see  what  new  right  or 
privilege  he  could  assert  or  enjoy  imless  it 
were  the  right  to  live  without  the  society  of 
the   defendant  aud  that  she  had  accorded 


him.  He  made  no  claim  even  to  additional 
rights,  and  performed  no  act  which  may  be 
said  to  be  In  hostility  to  the  defendant's  title, 
except  to  secure  a  divorce  and  remarry,  and 
these  alone  are  not  sufficient  to  establish  ad- 
verse possession. 

[(]  It  is  well  settled  that  a  life  tenant  can- 
not, by  his  declaration,  acts,  or  claims  of  a 
greater  or  different  estate,  make  it  adverse 
so  as  to  enable  himself  or  those  claiming 
under  him  to  Invoke  the  statute  1  Cyc. 
1057,  and  cases  dted. 

[10]  All  statutes  of  limitations  are  based 
on  the  theory  of  laches,  and  no  laches  can 
be  imputed  to  one  who  has  no  remedy  or 
right  of  action ;  and  to  hold  the  bar  of  the 
statute  could  mn  against  the  title  of  a  per- 
son so  circumscribed  would  be  subversive  of 
justice,  and  would  be  to  deprive  such  person 
of  his  estate  without  his  day  in  court  Met- 
tler  V.  Miller,  129  lU.  630,  22  N.  B.  529. 

It  is  not  questioned  that  one  cotenant  may 
oust  the  others,  and  set  up  an  exclusive  right 
of  ownership  In  himself,  and  that  an  open, 
notorious,  and  hostile  possession  of  this  char- 
acter for  the  statutory  period  will  ripen  into 
title  as  against  the  cotenants  who  were  oust- 
ed. 1  R.  C.  L.  7.  See  Soper  v.  Lawrence, 
98  Me.  277,  56  AU.  90S,  99  Am.  St  Rep.  397, 
quoting  Richardson  v.  Richardson,  72  Me. 
409. 

[Ill  In  Mansfield  v.  McOinniss,  86  Me.  118, 
29  Atl.  956,  41  Am.  St  Rep.  532,  an  action 
under  the  statute  by  one  tenant  in  common 
of  an  undivided  tract  of  land  against  a  co- 
tenant  for  cutting  trees  upon  the  land,  with- 
out giving  the  statute  notice,  the  defendant 
claimed  to  have  disseized  the  plaintiff,  and 
thus  to  have  acquired  a  title  to  the  whole 
tract  by  an  adverse  possession  for  more  than 
20  years,  the  court  say: 

"As  I>etween  cotenants,  evidence  of  long  con- 
tinued, visible,  uninterrupted  and  even  exclu- 
sive occupation  by  one  cotenant,  is  not  enough 
to  bar  the  rights  of  the  other  cotenants.  There 
must  be  evidence  from  which  an  ouster,  a  put- 
ting out  and  a  keeping  out,  of  the  other  co- 
tenants,  can  be  Inferred." 

No  such  evidence  appears  in  the  case  stat- 
ed. 

[1 2]  It  is  therefore  the  opinion  of  the  court 
that  tile  defendant  has  not  abandoned  her 
rights  as  life  tenant  of  the  demanded  prem- 
ises, nor  has  she  been  deprived  of  the  same 
by  disseizin  or  adverse  xwssession.  It  fol- 
lows that  the  plaintiffs  as  remaindermen  are 
not  Justified  in  asserting  their  claim  upon 
the  reasons  set  up,  for  the  right  of  action  of 
the  remaindermen  or  reversioner  does  not 
accrue  until  the  death  of  the  tenant  for  life. 
1  R.  a  L.  743 ;  Hooper  v.  Leavltt,  109  Me. 
70,  82  Atl.  647. 

Judgment  for  the  defendant 


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101  ATLANTIC  REPORTER 


(Pa. 


(257  Pa.  196) 

HBNSOUKB  et  aL  r.  MOORB  et  aL 

(Sapreme  Court  of  PennsylTania.     March  19, 
1917.) 

1.  CONTBACTS  <&=»117(4,  6)  —  Rbbtbaint  op 
Trade  —  General  ob  Pabtial  Rkstbaint  — 
Validity. 

In  this  state  theie  is  a  distinction  between 
contracts  in  general  restraint  of  trade  cover- 
ing the  entire  country  and  those  in  partial  re- 
straint of  trade  covering  only  a  small  area; 
and  contracts  in  general  restraint  of  trade  are 
void,  while  those  in  partial  restraint  of  trade  are 
valid  if  reasonable. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  §S  559,  560.] 

2.  CoNTBACTs  <3=»116(7)— Rbstbaikt  or  Tbaob 
—Invalidity. 

A  contract  granting  the  ezclasive  right  to 
manufacture  and  use  a  patented  apparatus,  and 
providing  that  upon  surrender  of  license  the  li- 
censee would  not  thereafter  engage  in  manufac- 
turing or  selling  the  same  or  any  competing  ma- 
terial in  the  United  States,  was  an  unreasonable 
restraint  of  trade. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  §  552.] 

3.  CONTBACTB  «=»116(1)— RBSTaAIKT  OF  TEADK 

— Engaging  in  Business. 
A  contract  which  attempts  to  restrain  a 
party  from  engaging  in  a  business  which  has 
previously  been  open  to  him  in  common  with 
the  general  public  is  unreasonable,  and  such  re- 
striction will  not  be  enforced  by  the  courts. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  K  542,  543,  545,  546.] 

4.  CoNTSAOTB  4=>117(8)— Rbstbaint  OF  Tbadb 
— Timk. 

Such  contract  was  also  unreasonable  in  that 
the  restriction  on  the  licensee,  being  unlimited 
as  to  time,  extended  the  restraint  fartlier  than 
was  necessary  for  the  reasonable  protection  of 
the  licensor. 

[Ed.  Note. — For  other  cases,  see  Contracts, 
Cent  Dig.  {  566.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia Coonty. 

BUI  In  equity  for  an  injunction  by  Brnno 
Henschke  and  Karl  Ersel,  copartners  doing 
business  under  the  name  of  Haensel  &  Co., 
against  Eklgar  B.  Moore  and  others.  Injunc- 
tion awarded,  and  defendants  appeaL  Re- 
versed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSCHZISKER,  FRAZEIR,  amd  WAIr 
LING,  JJ. 

John  O.  Johnson  and  Charles  H.  Edmunds, 
both  of  Philadelphia,  and  M.  H.  Regensburg- 
er,  for  appellants.  Henry  J.  Scott,  of  Ptiila- 
delphla,  for  appellees. 

POTTER,  J.  The  form  of  the  bUl  fUed  by 
complainants  in  this  case  indicates  that  they 
sought  to  restrain  the  infringement  of  certain 
letters  patent  oil  the  United  States  granted 
to  Oswald  Hansel  for  an  improvement  in  ap- 
paratus for  feeding  horsehair  from  a  bundle 
to  a  wrapping  device.  If  that  were  In  fact 
the  issue  involved,  we  would  be  without  Ju- 
risdiction to  determine  it,  as  the  infringe- 
ment of  a  patent  is  a  question  exclusively  for 


consideration  by  the  federal  courts.  The  real 
controversy  here  turned,  however,  upon  the 
force  of  a  contract  entered  into  concerning 
the  use  to  be  made  of  certain  machines  em- 
bodying the  said  invention,  and  no  rights  arti 
involved  except  such  as  arise  out  of  the  con- 
tract. 

It  appears  that  on  February  21,  1913, 
Haensel  &  Co.,  the  plaintiffs,  entered  into  a 
written  contract  with  the  defendant  Edgar 
B.  Moore,  "acting  for  himself  and  bis  undis- 
closed associates,"  whereby  they  granted  to 
the  said  defendant,  in  consideration  of  his 
agreement  to  pay  certain  royalties,  the  sole 
Bind  exclusive  right  to  manufacture  and  use 
"an  apparatus  for  feeding  horsehair  from  a 
bundle  to  a  wrapping  device,"  which  was 
protected  by  letters  patent  of  the  United 
States  owned  by  plaintiffs.  Provision  was 
made  for  the  cancellation  or  surrender  of  the 
license  under  certain  circumstances,  with,  a 
stipulation  that  in  the  event  of  cancellation 
or  surrender  **the  licensee  will  not  thereafter, 
either  directly  or  indirectly,  engage  In  the 
business  of  manufacturing  or  selling  the  same 
or  any  competing  material  In  the  United 
States."  This  statement  is  not  clear.  The 
license  was  for  the  use  of  a  machine,  and  the 
language  would  naturally  imply  an  engage- 
ment not  to  manufacture  or  sell  any  such  ma- 
chines, bat  it  is  conceded  that  what  was  in- 
tended was  an  engagement  not  to  manufac- 
ture or  sell  horsehair  yam  or  thread  similar 
to  the  product  of  the  machine,  or  which  would 
compete  therewith.  As  thus  understood,  we 
have,  then,  a  contract  for  a  license  to  manu- 
facture and  use  a  machine,  with  a  provision 
that.  In  case  of  surrender  of  the  license,  the 
licensee  shaU  be  prohibited  from  making  or 
selling,  not  the  machines  which  were  protect- 
ed by  the  patent,  but  any  horsehair  yam 
which  would  compete  with  the  product  of  the 
machine.  The  court  below  held  that  com- 
plainants were  entitled  to  the  relief  they 
sought  Exceptions  were  dismissed,  and  a 
final  decree  entered  by  which  the  defendants 
were  enjoined  "until  the  7th  day  of  March, 
A.  D.  1928  (the  expiration  of  the  patent), 
from  making  or  selling,  directly  or  indirect- 
ly, endless  horsehair  yam  or  doth  made 
therefrom  similar  to  that  under  the  patent 
of  the  complainants,  as  set  forth  in  the  bill 
of  complainants  filed  in  this  cause,  and  the 
manufacture  and  sale  of  any  competing  end- 
less hair  yam  and  cloth  made  therefrom." 
An  accounting  for  profits  arising  out  of  the 
manufacture  and  sale  of  hair  yam  or  cloth 
made  therefrom  since  September  30,  1914, 
was  also  ordered.  Defendants  have  ai^ieal- 
ed,  and  their  counsel  contend  that  the  cove- 
nant by  which  the  licensee  was  bound.  In  the 
event  of  the  surrender  of  the  license,  not  to 
manufacture  or  sell  anywhere  In  the  United 
States  at  any  time  material  similar  to  that 
which  was  the  product  of  the  machine  de- 
scribed in  the  patent  was  a  contract  in  re- 


ttssFor  otber  cues  see  Mms  toplo  ana  KSY-NUUBSR  lo  all  Key-Numbered  Plgeeu  and  Indexes 


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henschkb:  v.  moobe 


809 


stralnt  of  trade,  which  a  court  of  equity  will 
not  enforce.  In  a  late  text-book  discussion 
of  the  subject,  6  Ruling  Case  Law  a915)  785, 
It  is  said: 

"The  doctrine  relatlDS  to  contract*  In  restraint 
of  trade  appears  to  have  undergone  diatinctlTe 
rtases  of  transformation  or  deTeI<vment  Ao- 
cording  to  the  early  common  law  of  ITngland,  an 
agreement  in  restraint  of  a  man's  right  to  exer- 
cise his  trade  or  calling  was  void  as  against  pub- 
lic policy.  •  *  •  Although  the  courts  con- 
tinned  to  treat  contracts  in  general  or  total 
restraint  of  trade  as  void,  they  began  to  enforce 
contracts  in  partial  restraint  of  trade  provided 
such  contracts  were  not  unreasonable.  The 
elassiScation  of  contracts  into  those  which  are  in 
{eneral  restraint  of  trade  and  those  which  are 
in  partial  restraint  of  trade  seems  to  have  been 
made  for  the  purpose  of  distinguishing  between 
restrictive  agreements  covering  the  entire  conn- 
try  and  restrictive  a^eements  covering  a  small 
area.  This  distinction  is  still  adhered  to  in 
some  jurisdictions.  But,  as  will  he  seen,  many 
of  the  courts  have,  in  view  of  changed  condi- 
tions, abandoned  the  rule  that  contracts  in  gen- 
eral restraint  of  trade  are  necessarily  void. 
In  its  place  they  have  substituted  the  more  flex- 
ible rule  that  contracts  in  unreasonable  restraint 
of  trade  are  void,  while  contracts  which  impose 
a  reasonable  restraint  upon  trade  are  valid. 
The  tendency  of  modem  decisions  is  to  adopt 
this  rule  as  the  one  governing  the  subject." 

[1]  Our  Pennsylvania  cases  follow  the  dis- 
tinction between  contracts  in  general  re- 
straint of  trade  and  those  in  partial  restraint 
In  the  former  case  we  have  held  the  restric- 
tion to  be  void,  and  in  the  latter  that  it 
might  be  sustained  if  reasonable.  The  de- 
cision in  Monongahela  River  Ccmsolidated 
Coal  ft  Coke  Co.  v.  Jutte,  210  Pa.  288,  69  Atl. 
1068,  106  Am.  St.  Rep.  812,  2  Ann.  Cas.  951, 
was  dted  by  the  court  below,  and  is  relied 
npon  by  both  parties  to  this  appeal,  as  de- 
fining the  present  state  of  the  law  upon  the 
subject  It  was  there  said  (210  Pa.  page 
802,  59  AU.  page  1093  [106  Am.  St  Rep.  812, 
2  Ann.  Gas.  951]): 

"When  a  contract  is  presented  which  In  some 
degree  restrains  trade,  we  do  not  at  once  decide 
that  it  is  void  as  against  public  policy,  but  we 
go  further  and  inquire,  is  it  limited  as  to  space 
or  time,  and  is  it  reasonable  in  its  nature?" 

Mr.  Justice  Dean  then  called  attention  to 
the  facts  that  the  contract  there  under  con- 
sideration was  limited  as  to  time,  ten  years, 
limited  as  to  e^mce,  the  immediate  territory 
adjacent  to  three  navigable  rireni,  and  their 
tributaries,  and  related  to  the  sale  of  the 
good  will  of  a  business.  Be  expressly  gave 
as  one  reason  for  enforcing  the  contract  that 
"the  time  was  not  an  indeflnite  period  as  In 
some  of  the  cases." 

[2]  In  the  case  at  bar  the  complainants  do 
not  expressly  aver  a  breach  of  the  covenant 
contained  in  the  seventh  paragraph  of  the 
contract  in  which  the  licensee  agrees  that  In 
the  event  of  the  surrender  of  the  license  he 
will  not  "engage  in  the  business  of  selling  the 
same  or  any  competing  material  in  the  United 
States."  The  only  sentence  in  the  bill  that 
can  be  construed  to  refer  to  that  covenant  is 
the  averment  that  "respondents  are  continu- 


ing to  take  orders  for  and  are  mannfacturing 
and  have  delivered  large  quantities  of  cloth 
containing  said  hair  yam  of  the  exact  ap- 
pearance as  that  made  and  sold  heretofore 
by  respondents  under  your  orator's  patent" 
Yet  the  court  below,  without  reference  to  the 
prayers  of  the  bill  that  infringement  of  plain- 
tlifs'  patent  be  restrained,  and  for  an  account 
and  award  of  damages  for  such  infringement, 
has  considered  the  bill  as  if  it  had  been  filed 
to  enforce  the  contract  not  to  manufacture 
and  sell  material  similar  to  that  which  was 
to  be  produced  on  the  machine  described  in 
the  patent  The  llcoisee  was  entirely  within 
his  rights  in  surrendering  the  license.  The 
testimony  shows  that  the  machines  described 
in  the  complainants'  patent  would  not  pro- 
duce hair  yam  which  was  satisfactory  to  de- 
fendants. That  being  the  case,  was  the  re- 
striction reasonable  which  prevented  the  H- 
oensee  from  making  hair  yam  upon  some 
other  machine,  after  surrendering  his  license 
under  complainants'  patent?  We  are  clearly 
of  the  opinion  that  it  was  not  Hair  yam, 
and  hair  cloth  made  therefrom,  were  at  the 
time  old  and  well-known  products  long  in 
public  use.  The  license  granted  by  complain- 
ants was  merely  for  the  use  of  a  machine, 
and  it  did  not  apply  at  all  to  the  hair  yam 
which  was  the  product  of  the  machine.  The 
license  covered  only  one  method  of  making 
hair  yam.  Other  methods  which  did  not  in- 
fringe the  claims  of  the  patent  were  open  to 
the  public.  For  the  use  which  was  made  of 
the  machine  complainants  were  compensated 
by  the  royalty.  When  the  license  was  sur- 
rendered, complainants  received  everything  to 
whidi  they  were  entitled.  They  bad  their 
patent  then  in  their  own  hands  and  could  use 
It  themselves,  or  license  others  to  use  it 
There  was  nothing  to  justify  them  in  seeking 
to  restrain  defendants  from  engaging  in  the 
business  of  manufacturing  hair  yam  by  the 
use  of  any  machine  which  did  not  infringe 
their  patent  This  transaction  is  not  proper- 
ly to  be  compared  with  the  sale  of  a  business 
in  which  there  is  an  agreement  upon  the  part 
ot  the  seller  not  to  compete  with  the  pur- 
diaser  for  a  limited  term.  To  do  so  In  such 
a  case  would  be  a  breach  of  faith,  as  it  would 
d^redate  the  value  of  the  property  or  busi- 
ness sold.  A  case  analogous  to  the  present 
one  would  be  that  of  the  sale  of  a  business 
in  consideration  of  the  payment  of  a  yearly 
sum  as  compensation,  coupled  with  a  provi- 
sion that  iQ  case  the  purchaser  exercised  his 
right  to  discontinue  the  business,  he  should 
never  be  allowed  to  engage  in  the  same  or  a 
similar  business  at  any  time  or  any  place. 
Sudi  a  contract  in  restraint  of  trade  would 
be  clearly  unreasonabla  So  in  the  present 
case  IS  the  attempt  to  restrain  defendants 
from  doing  something  which  they  were  at 
perfect  liberty  to  do  before  the  granting  of 
the  license,  that  is,  manufacture  hair  yam  by 
the  use  of  a  machine  whldi  does  not  infringe 


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plaintiffs'  patent  Any  restrlctlcm  wblcb  pre- 
vents them  from  doing  the  same  thing  after 
the  surrender  of  the  license  which  they  In 
common  with  the  public  were  at  liberty  to  do 
before  taking  a  license  for  the  use  of  plain- 
tiffs' machine  Is  palpably  unreasonable.  Such 
a  requirement  Is  not  at  all  necessary  for  the 
proper  protection  of  the  rights  of  the  plain- 
tiffs, and  It  Is  oppressive  to  defendants. 

[3]  The  restriction  here  Is  also  unreason- 
able In  that  it  Is  unlimited  as  to  time.  The 
court  below  endeavored  to  overcome  this 
fault  by  enjoining  defendants  only  during 
the  balance  of  the  term  of  plaintiffs'  patent. 
But  here  again  we  must  repeat  that  the 
patmt,  which  was  for  a  machine,  did  not  ap- 
ply to  the  subject-matter  of  the  restriction, 
wblidi  was  the  manufacture  and  sale  of  hair 
yam.  The  only  thing  to  which  plaintiffs  had 
a  right  to  protection  was  the  subject-mat- 
ter of  their  patent,  and  when  the  restriction 
went  beyond  that,  and  attempted  to  restrain 
defendants  from  enga^g  In  the  manufacture 
and  sale  of  haircloth,  a  business  which  had 
been  previously  open  to  them  In  common 
with  the  general  public,  the  restraint  was  un- 
reasonable. In  Oregon  Steam  Nav.  Co.  v. 
Wlnsor,  20  WaU.  (87  U.  S.)  64,  22  L.  Ed.  315, 
Mr.  Justice  Bradley  said: 

"It  is  a  well-settled  rule  of  law  that  an  agree- 
ment in  general  restraint  of  trade  is  illegal  and 
void;  but  an  agreement  which  operates  merely 
in  partial  restraint  of  trade  is  good,  provided 
it  be  not  unreasonable  and  there  be  a  coDBidera- 
tion  to  support  it.  In  order  that  it  may  not  be 
unreasonable,  the  restraint  imposed  must  not  be 
larger  than  is  required  for  the  necessary  protec- 
tion of  the  party  with  whom  the  contract  ia 
made.  A  contract,  even  on  good  consideration, 
not  to  use  a  trade  anywhere  in  England,  is  held 
void  in  that  country,  as  being  too  general  a  re- 
straint of  trade;  but  a  contract  not  to  use  a 
trade  at  a  particular  place,  if  it  be  founded  on 
a  good  consideration,  and  be  made  for  a  proper 
and  useful  purpose,  is  valid.  Of  course,  a  con- 
tract not  to  exercise  a  trade  generally  would  be 
obnoxious  to  the  rule,  and  would  be  void." 

In  Union  Strawboard  (Company  v.  Bonfield, 
1»3  111.  420,  61  N.  R  1038,  86  Am.  St  Rep. 
346,  the  contract  was  in  connection  with  the 
sale  of  a  business,  and  a  reasonable  restric- 
tion was  Justified,  but  it  was  there  said: 

"The  courts  will  not  enforce  any  contract 
n-bich  excludes  a  party  generally  from  following 
any  lawful  trade  or  hnsiness  beneficial  to  the 
community  and  to  him." 

In  Lanzlt  ▼.  J.  W.  Sefton  Mfg.  Co.,  184 
IlL  326,  66  N.  a  893,  75  Am.  St.  Rep.  171, 


which  also  Involved  the  sale  of  a  business,  it 
was  held  that  a  contract  in  restraint  of  trade 
throughout  the  United  States  was  unreason- 
able and  void,  and  also  that  it  could  not  be 
divided  so  as  to  apply  to  a  single  state  only, 
as  such  a  contract  would  also  be  void. 

[4]  In  the  case  at  bar  the  contract  in  re- 
straint of  trade,  being  unlimited  as  to  time, 
and  as  to  space  extending  over  the  entire 
country,  must  be  regarded  as  extending  the 
restraint  further  than  is  necessary  for  the 
reasonable  protection  of  the  covenantee.  Ref- 
erence to  the  natare  and  subject-matter  of 
the  restriction  makes  its  unreasonableness 
more  clearly  apparent  As  we  have  already 
indicated,  payment  of  the  royalty  was  full 
compensation  for  the  use  of  the  patent  and 
as  the  plaintiffs  contributed  nothing  bat  the 
patent  there  was  no  consideration  whatever 
to  support  that  portion  of  the  agreement 
which  bound  the  licensee  after  the  surrender 
of  the  license  to  refrain  from  the  manu- 
facture, by  methods  which  did  not  infringe 
plaintiffs'  patent  of  an  article  of  commerce 
in  common  use.  Such  a  restriction  upon  the 
rights  of  the  licensee  was  in  its  very  nature 
unreasonable  and  v(dd. 

Nor  is  there  any  merit  In  tbe  suggestion 
that  plaintiffs  were  entitled  to  relief  in  or- 
der to  protect  trade  secrets.  The  c(mtract 
had  no  relation  in  any  way  to  trade  secrets. 
It  related  solely  to  the  use  of  a  patented 
machine,  the  specifications  of  which  are  a 
matter  of  public  knowledge  and  record.  To 
secure  a  valid  patent  the  law  requires  the 
specification  to  be  plain  and  clear,  and  to 
describe  the  invention  in  such  a  manner  as  to 
enable  the  public  to  practice  it  from  the 
specification  alone.  There  was  therefore  no 
room  in  this  case  for  the  addidon  of  any 
trade  secrets  to  make  the  alleged  Inv^itiou 
workable. 

Holding,  as  we  do,  that  the  contract  in 
question  is  an  illegal  restraint  of  trade,  and 
cannot  be  enforced  in  a  court  of  equity,  the 
question  whether  the  relief  sought  should  be 
confined  to  the  single  defendant  Edgar  B. 
Moore  need  not  be  considered. 

Of  the  44  assignments  of  error,  all  except 
the  last  one  are  to  the  dismlsBal  of  various 
exceptions  filed  by  defendants  to  the  flndlngs 
of  fact  and  conclusions  of  law  of  the  trial 
Judge.  Witliont  disposing  specifically  of 
tbese  assignmoits,  It  is  sufficient  to  say  that 
the  forty-fonrth,  which  is  to  the  final  decree. 
Is  sustained,  and  the  decree  of  the  court  be- 
low is  reversed,  at  the  cost  of  the  app^eea. 


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811 


(ZG7  PL  SOS) 

HENSOHKB  et  aL  r.  MOORE  et  aL 

(Supreme  Court  of  PennsylTania.     March  19, 
1917.) 

Appeal  from  Conrt  o<  Commmi  Pleaa,  Phila- 
delphia County. 

Bill  in  equity  by  Bruno  Henschfce  and  Karl 
Ersel,  copartners  doin^  business  under  the  name 
of  Haensel  &  Co.,  against  Edgar  B.  Moore  and 
others,  doing  business  under  the  name  of  E.  B. 
Moore  &  Co.  From  a  decree  awarding  an  in- 
junction, defendant  H.  R.  Sack  appeals.     Re- 

Argued  before  BROWN,  C.  J.,  and  POTTER, 
MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

Julius  C.  Levi,  of  Philadelphia,  for  appellant. 
Henry  J.  Scott,  of  Philadelphia,  for  appellees. 

POTTER,  J.  This  is  a  separate  appeal  by  H. 
R.  Sack,  from  the  same  decree  which  was 
brought  before  us  in  the  appeal  at  No.  297,  Jan- 
aai7  term,  1916,  101  Atl.  SOS.  The  opinion 
which  was  there  filed  is  condusiTe  of  the  only 
questi(»>s  which  cull  for  consideration  here.  Fur 
the  reasons  therein  set  forth,  the  decree  of  the 
conrt  below  is  reversed,  at  the  cost  of  the  ap- 
pellees. 

<1S7  Pa.  81) 

In  re  TABER'S  ESTATE. 

Appeal  of  OIRARD  TRUST  CO. 

{Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

Taxation   «=3ST8(1)  —  Inhebitancb  Tax— 

Propebty  Subject. 
Where  the  colUiteral  heirs  of  a  decedent 
contested  her  will  and  obtained  a  settlement 
whereby  they  received  more  than  two-thirds  «rf 
the  estate  and  whereby  it  was  agreed  that  a  cer- 
tain fee  be  paid  to  counsel  for  the  proponent, 
the  amount  received  in  settlement,  including 
the  amount  of  its  fee,  was  subject  to  a  collateru 
inheritance  tax. 

[For  other  cases,  see  Taxation,  Cent.Uig.{  1700] 

Appeal  from  Orphans'  Court ;  Philadelphia 
County. 

The  Glrard  Trust  Company,  executor  of 
the  estate  of  Augusta  Taber,  deceased,  ap- 
peals from  a  decree  dismlsslns  exceptions  to 
adjudication  in  the  estate.    Afflrmed. 

Argued  before  BROWN.  C.  J.,  and  MES- 
TBBZAT,  POTTER,  STEWART,  and  FRA- 
ZER, JJ. 

Franklin  S.  Edmonds  and  Howard  Schell 
Salter,  both  of  Philadelphia,  for  appellant 
Edwin  S.  Ward,  of  Philadelphia,  and  Francis 
'Sbunk  BiQwn,  Atty.  Gen.,  for  the  Common- 
Avealth. 

BROWN,  C.  J.  Augusta  Taber  died  Jan- 
•nary  15,  1909,  unmarried  and  without  is- 
sue. Soon  after  her  death  application  was 
made  to  the  register  of  wills  of  Philadelphia 
county  for  admission  to  probate  of  what  pur- 
'ported  to  be  her  last  will  and  certain  codicils 
thereto,  In  which  the  Glrard  Trust  Company 
was  named  as  executor.  First  cousins  of  the 
-decedent  objected  to  the  probate  of  these 
pnijers,  on  the  ground  that  she  was  of  on- 
sound  mind  when  she  executed  them,  and  an 
issue  devlsaTit  vel  non  was  directed  to  the 


court  of  common  pleas  No.  5  of  the  county  of 
Philadelphia.  Shortly  before  the  date  fixed 
for  Its  trial  the  parties  Interested  In  the  con- 
test agreed.  In  writing,  to  a  compromise,  by 
the  terms  of  which  the  contestants  were  to 
receive  $60,589.68,  or  more  than  two-thirds 
of  the  estate,  which  had  been  bequeathed 
largely  to  charities.  In  addition  to  this  It 
was  agreed  that  the  sum  of  $7,500  should  be 
paid  to  coimsel  as  compensation  for  profes- 
sional services  rendered  to  the  proponent  of 
the  wllL  In  pursuance  of  this  agreement  a 
verdict  was  taken  sustaining  it,  and  letters 
testamentary  were  duly  issued  to  the  appel- 
lant At  the  audit  of  its  accoimt  which 
showed  that  the  estate  amounted  to  $89,915.- 
37,  tlie  commonwealth  claimed  collateral  in- 
heritance tax  on  the  sum  of  $60,589.68  to  he 
paid  to  the  contestants  of  the  will  and  ood- 
Idls,  as  well  as  on  the  sum  of  $7,500  to  be 
paid  as  counsel  fees  under  the  terms  of  the 
agreement  of  settlement  The  auditing  judge 
allowed  both  of  these  claims,  and,  from  the 
decree  of  the  court  in  banc  sustaining  him, 
the  executor  of  the  testatrix  has  appealed. 

As  Augusta  Taber  was  unmarried,  and 
left  neither  father  nor  mother  nor  lineal  de- 
scendants, there  became  due  to  the  common- 
wealth a  tax  "of  $5  on  every  hundred  dollars 
of  the  clear  value"  of  her  estate.  No  matter 
how  It  passed — ^whether  by  will  or  under  the 
Intestate  laws — It  was  liable  to  this  tax.  If 
there  had  been  no  contest  over  the  will,  the 
tax  would  have  been  payable;  if  those  who 
contested  It  had  succeeded  in  setting  It  aside, 
they  would  have  taken  under  the  Intestate 
laws,  but  the  tax  would  have  been  payable 
before  any  one  of  them  could  have  received 
a  dollar  from  the  estate.  In  the  face  of  this, 
the  contestants  of  the  will  contend  that,  be- 
cause the  estate  has  been  partitioned  by 
them  and  the  legatees  under  an  agreement 
as  to  how  it  shall  be  divided,  the  portion  al- 
lotted to  them — more  than  two-thirds  of  It — 
shall  be  exempt  from  the  payment  of  col- 
lateral Inheritance  tax.  If  they  had  received 
from  the  testatrix  legacies  amounting  to 
$60,589.68,  would  they  have  pretended  that 
the  commonwealth  had  no  claim  for  collat- 
eral Inheritance  tax  on  so  much  of  her  es- 
tate? Or,  if  that  sum  had  been  coming  to 
them  under  the  intestate  laws,  would  they 
have  questioned  Its  liability  to  this  tax? 
Surely  not;  and  yet  they  seek  to  escape  the 
tax  because  an  amicable  division  of  the  es- 
tate has  been  made  by  them  and  the  benefi- 
ciaries named  In  the  wllL  The  estate  which 
has  been  so  partitioned  Is  the  one  of  whidi 
Augusta  Taber  died  seised,  but  of  this  her 
cousins  seem  to  be  blind,  for,  if  they  would 
see,  they  would  know  that  the  act  of  May 
6,  18S7  (P.  L.  79),  In  plainest  terms,  makes 
tike  clear  value  of  the  whole  estate  liable  to 
collateral  inheritance  tax.  The  process  by 
which  the  attempt  is  made  to  prevent  the 
state  from  getting  what  is  so  manifestly  due 


>Fer  other  oaaas  SM  lam*  tAplo  and  KET-NUUBSR  In  all  Ker-Nombarsd  DlSMta  and  Indazw 


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to  It  Is  as  offensiTe  to  reason  as  it  Is  to  the 
statute. 

It  Is  bardly  needful  to  say  that  tbe  three 
cases  upon  which  reliance  seems  to  be  placed 
as  authorities  for  disallowing  the  claim  of 
the  commonwealth  for  the  tax  on  $60,589.68 
are  without  application.  In  Pepper's  Estate, 
1.59  Pa.  608,  28  Atl.  353,  the  sum  which  was 
held  to  be  exempt  from  collateral  Inheritance 
tax  had  never  been  received  by  the  legatees, 
but  was  paid  by  the  executor  directly  to  a 
son  of  the  testator  in  settling  with  him  when 
he  withdrew  a  contest  over  the  will,  the  suc- 
cess of  which  would  have  given  him  the  en- 
tire estote  of  Ills  father,  free  from  collateral 
inheritance  tax,  for  he  was  in  the  exempt 
class  under  the  act  of  1887.  If  the  whole  of 
his  father's  estate  would  have  been  exempt 
from  taxation  had  it  passed  to  the  son,  either 
by  will  or  under  tbe  intestate  laws,  the  same 
was  true  of  any  portion  of  it  which  he  took 
in  settlement  of  a  claim  wliicfa,  in  effect,  was 
that  of  a  sole  lineal  descendant  of  a  father 
who  had  died  Intestate.  This  is  what  that 
case  decided.  In  Kerr's  Eistete,  159  Pa.  512, 
28  Atl.  351,  EUzabeth  S.  Palmer  left  all  of 
her  property  by  will  to  Maiy  Jane  Kerr,  a 
friend.  Mrs.  Palmer's  heirs  at  law  and  next 
of  kin  began  proceedings  to  contest  the  will. 
Mrs.  Kerr  died  during  their  pendency,  and 
the  contest  was  subsequently  compromised 
by  her  heirs  at  law  and  next  of  kin  entering 
into  an  agreement  by  which  they  withdrew 
all  daim  to  Mrs.  Palmer's  personalty  and  to 
the  one-half  of  her  realty.  In  assessing  the 
collateral  inheritance  tax  upon  Mrs.  Kerr's 
estate  the  register  of  wills  declined  to  make 
any  deduction  by  reason  of  what  had  been 
surrendered  in  the  Palmer  estate.  The  col- 
lateral inheritance  tax  had  been  paid  upon 
the  entire  estate  of  Mrs.  Palmer,  and  only  so 
much  of  it  as  remained  after  the  recognition 
of  the  righto  of  those  who  claimed  under  the 
intestate  laws  became  the  estate  of  Mary 
Jane  Kerr,  her  beneficiary.  It  was  therefore 
held  that  no  more  than  this  was  toxable  as 
her  estate.  The  amount  held  to  be  exempt 
from  tax  in  Hawley's  Estote,  214  Pa.  625,  63 
Atl.  1021,  6  Ann.  Gas.  672,  was  the  sum  paid 
to  the  employes  of  the  decedent,  who  insisted 
that  his  will,  the  validity  of  which  his  heirs 
denied,  contained  a  provision  In  the  nature 
of  a  contract  They  resisted  the  attempt  to 
set  the  instrument  aside,  and  a  settlement 
was  made  with  them  as  creditors,  after  the 
orphans'  court  had  determined  what  amount 
was  due  to  each  of  them.  In  holding  that 
what  they  so  received  was  exempt  from  tax, 
Mr.  Justice  Fell  said: 

"They  claimed  that  the  writing  was  a  valid 
will  and  that  the  provision  for  their  t>enefit  was 
in  discharge  of  an  obligation  of  tbe  decedent. 
Tbe  beira  denied  the  validity  of  the  writing 
as  a  will  because  of  the  want  of  teBtamentary 
capacity.  A  settlement  was  made  in  which  the 
employes  were  treated  as  creditors  and  allowed 
a  part  of  their  demands.  This  was  deoriy  a 
compromise  of  a  doubtful  right  to  avoid  litiga- 


tion, by  which  tbe  heirs  parted  with  a  portion 
of  the  estate  in  the  purchase  of  peace.  The 
employes  took  nothing  under  the  will,  and  the 
money  paid  thetp  was  not  subject  to  tax,  unless 
the  whole  arrangement  was  collusive." 

[2]  As  to  the  liability  to  tox  of  the  $7,500 
to  be  paid  to  counsel,  it  need  only  be  said 
that  the  parties  to  the  agreement  as  to  how 
the  estate  should  be  divided  had  no  more 
right  to  set  that  sum  aside  for  the  purpose 
stated,  at  the  expense  of  the  commonwealth, 
than  they  had  to  take  $60,589.68  from  tbe  es- 
tate, exempt  from  collateral  inheritance  tax. 
An  executor  is  not  bound  to  defend  his  testa- 
tor's will.  If  he  undertakes  to  do  so,  It  must 
be  as  the  agent  and  In  the  Interest  of  those 
benefited  by  his  action.  He  must  look  to 
them  for  expenses  Incurred  in  the  contest 
over  the  will,  and  may  not  charge  the  same 
to  the  estate  unless  it  is  benefited  by  the  pro- 
ceeding. Terkes's  Appeal,  99  Pa.  401.  No 
benefit  resulted  to  the  estate  of  the  testatrix 
In  the  case  before  us  through  the  proceeding 
to  contest  her  will ;  but  it  did  largely  benefit 
her  next  of  kin. 

Appeal  dismissed,  and  decree  affirmed  at 
the  costs  of  the  appellant. 


(2B7  Pa.  88) 
WEIL  et  aL  r.  NORTHWESTERN  PA. 
RT.  00. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

Railboads   *=s)195(2)  —  Bondholdem'    Cojc- 

MITTEB— SEBVICK    OF    ATTOBNET  —  LlABIUTT 

OP  Corporation. 
In  a  suit  for  counsel  fees  for  services  ren- 
dered a  bondholders'  committee  which  had  ef- 
fected a  reorganization  of  a  railway,  where 
it  appeared  that  the  contract  for  services  was 
the  contract  of  tba  committee,  and  not  of  the 
railway,  and  where  thd  jury  found  that  the 
contract  had  not  hesa  subsequently  adopted  by 
the  railway,  plaintiffs  could  not  recover. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  {  656%.] 

Appeal  from  Conrt  of  Common  Fleaa, 
Crawford  County. 

Assumpsit  for  counsd  fees  by  A.  Leo  W^ 
Charles  M.  Thorp,  and  S.  Leo  Ruslander, 
partners  doing  business  under  the  firm  name 
of  Weil  &  Thorp,  against  the  Northwestern 
Pennsylvania  Railway  Company.  Judgment 
for  defendant  motions  for  new  trial  and  for 
Judgment  n.  a  v.  denied,  and  plalntlifs  ap- 
pe&L    Affirmed. 

The  following  is  the  opinion  of  Prather. 
P.  J.,  in  the  court  below: 

"Assumpsit  for  counsel  fees.  From  the  rec- 
ord it  appeared  that  tbe  defendant  company  waa 
in  effect  tbe  result  of  the  merger  of  two  street 
railway  companies.  For  tbe  purpose  of  eJIect- 
ing  such  merger  and  protecting  their  respective 
bondholders  and  lien  creditors,  on  December  13, 
1910,  a  written  agreement  was  entered  into  by 
a  so-called  bondhoTden*  protective  committee,  of 
the  first  part  and  George  A.  Qaston,  of  the 
second  part,  in  which  it  was  recited  that  the 
committee  had  come  into  possession  of  a  large 
amount  of  bonds  of  the  two  companies  to  be 


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FISCHER  T.  TATLOB 


313 


meiSed  and  tiiat  a  reoisaniEatloB  was  in  con- 
templation. Under  the  acreement  the  com- 
mittee was  to  cause  forecloaure  proceedings  to 
be  proeecuted  and  become  pun^asers  of  the 
property,  franchises  and  assets  of  the  insolrent 
traction  companies.  The  committee  agreed  to 
convey  and  transfer  all  the  property  and  assets 
of  the  old  companies  to  the  new  company  free 
and  dear  of  all  liens,  incumbrances,  and  debts, 
and  the  party  of  the  second  part  agreed  to  pur- 
chase from  the  committee  bonds  of  the  new 
company  in  a  large  amount.  Foredoaure  pro- 
ceedings were  duly  had,  and  on  January  14, 
1911,  the  committee  became  the  purchasers  of 
the  property  and  assets  and  received  a  deed 
therefor  on  February  7,  1911.  On  February  24, 
1911,  the  new  orgainization  was  effected  under 
the  corporate  name  of  the  Northwestern  Penn- 
sylvania Railway  Company,  and  on  March  7, 
1911,  final  transfer  of  all  assets  was  made  to 
the  new  company. 

On  December  13,  1810,  the  bondholders'  pro- 
tective committee  engaged  Weil  &  Thorp  as 
attorneys  to  effect  the  incorporation  of  the  new 
company.  The  professional  services  were  ren- 
dered and  the  advances  made  by  plaintiff  at 
the  request  of  and  by  the  direction  of  the  per- 
■ODs  who  composed  the  committee,  aU  of  whom, 
with  the  exception  of  plaintiffs  and  one  other, 
became  directors  and  officers  of  the  defoidant 
corporation  upon  its  organlEation. 

^e  facts  were  undisputed  that  the  plaintiffs 
were  employed  by  the  bondholders'  protective 
eommittee  to  perform  the  services  declared  up- 
on, and  that  a  large  part,  if  not  the  larger  parL 
«f  such  services  were  performed  by  virtue  of 
that  employment  for  the  bondholders'  committee 
prior  to  the  date  of  defendant  company's  formal 
incorporatioit ;  that  defendant  company  never 
took  any  action  recognizing  or  adopting  such 
•ervices  as  incurring  any  liability  to  the  com- 
pany ;  that  the  terms  of  the  bondholders'  com- 
mittee contract  wherein  it  undertook  to  create_  or 
organize  a  corporation  were  known  to  plaintifEs 
at  the  inception  of  their  employment  and  were 
known  to  Uie  company  from  its  organizati(Hi ; 
and  that  the  bondholders'  committee  was  still  in 
full  life  and  activity  under  said  written  agree- 
ment at  the  time  oi  the  commencement  ot  the 
present  action. 

Verdict  for  defendant  and  Judgment  there- 
on.   PlalntllTs  appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TBEZAT,  POTTER,  STEWART,  and  FEA- 
ZER,  JJ. 

L,  Pearson  Scott,  of  Pittsburgh,  and  George 
F.  Davenport,  of  MeadvlUe,  for  appellanta. 
Frank  J.  Thomas,  of  Meadville,  and  G.  E. 
Fauver,  for  appelle& 

FEB  CURIAM.  In  its  opinion  discharg- 
ing the  rules  for  a  new  trial  and  for  Judgment 
for  the  plaintiffs  non  obstante  veredicto,  the 
correct  conclusion  of  the  learned  court  below 
was  that  the  defendant  was  entitled  to  bind- 
ing instmctions,  for  the  reasons:  (1)  The 
contract  sued  upon  was  not  the  defendant's 
conti&ct  and  there  was  not  sufficient  evidence 
of  Its  adoption  of  the  same;  (2)  the  bond- 
holders' committee  in  its  written  agreement 
undertook  to  create  the  defendant  company, 
and  all  the  circumstances  repel  any  inference 
that  services  were  performed  upon  the  credit 
of  the  company;  and  (3)  the  plaintiffs  were 
employed  by  the  bondholders'  committee  be- 
fore the  company  was  created,  and  the  plead- 


ings should  haTe  averred  ea<3i  employment 
and  a  subseqnent  adoption  of  It  by  the  de- 
fendant Though  the  plaintiffs  failed  to  aver 
any  such  adoption,  the  question  of  Its  adop- 
tion was  submitted  to  the  Jnry,  whose  find- 
ing was  that  It  had  not  been  adopted  by  the 
defendant 

The  asslgmnents  of  error  are  therefore 
overruled,  and  the  Judgment  is  aflSnned. 

(2n  Pa.  132) 
FISCHER  v.  TATLOE. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1817.) 

Fbatjd  As964(1)  —  Action  —  Evinracat— Non- 
suit. 
In  an  action  In  deceit  for  damages  by  rea- 
son of  defendant's  fraudulent  representations 
as  to  the  character  and  output  of  a  mine  induc- 
ing plaintiff  to  buy  certain  mining  stock,  a  non- 
suit was  properly  entered,  where  it  did  not  ap- 
pear that  plaintiff  sustained  any  damage  by  rea- 
son of  the  parciiase  of  the  stock  or  that  defend- 
ant intentionally  deceived  her  by  statements 
which  he  knew  were  not  true  or  which  were  so 
reckless  that  an  inference  could  be  drawn  tliat 
he  knew  they  could  not  be  true. 

[Ed.  Note.— For  other  cases,  see  BVand,  Cent 
Dig.  {{  65%.  67,  71.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  for  deceit  by  Mary  F.  FlsCher 
against  William  R.  Taylor.  From  a  Judg- 
ment refusing  to  take  off  a  nonsuit,  plaintiff 
apiieals.    Affirmed. 

From  the  record  it  appeared  that  plaintiff 
sued  to  recover  $10,000  as  damages  by  rea- 
son of  the  sale  to  her  by  the  defendant  of 
14200  shares  of  stock  of  the  Ouanacevl  Tun- 
nel Company  at  $5  a  share.  Plaintiff  teeti- 
fled  defendant  told  her  the  company  owned 
and  operated  a  fully  developed  gold  mine, 
with  ore  running  from  $2  to  $21  a  ton ;  that 
it  cost  $2  to  work  and  mill,  and  there  would 
be  a  net  profit  of  $2  a  ton ;  that  there  were 
22,500,000  tons  of  ore  thoroughly  explored 
and  blocked  out  that  would  yield  the  company 
$50,000,000;  that  the  ore  would  run  $4  a  ton 
on  the  average,  and  it  would  cost  $2  to  work 
it,  and  there  would  be  $2  profit ;  that  it  was 
working  two  shifts  of  people,  and  there  was 
new  machinery  and  a  new  stamping  mill, 
and  a  larger  mill  had  been  bought  and  was 
on  Its  way  to  Mexico  to  be  put  In,  and  there 
were  thousands  of  tons  of  ore  on  the  dump 
outside  the  shaft  and  outside  of  the  tunnel ; 
that  these  veins  alone  ttiat  were  really  block- 
ed out  and  thoroughly  explored  wonld  allow 
the  company  to  run  a  lifetime,  at  least;  the 
mines  would  run  a  lifetime  at  a  large  profit 
Plaintiff  also  stated  defendant  gave  her  cer- 
tain pamphlets  and  told  her  the  matters  in 
the  pamphlets  were  true  facts ;  that  he  knew 
them  to  be  true  facts  of  his  own  knowledge. 

There  was  no  testimony  that  any  of  these 
alleged  representations  were  untrue  except 
the  testimony  of  one  witness  that  the  mine 
was  not  fully  developed.    It  was  not  shown 


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101  ATIiANTIC  REPORTER 


(P«. 


that  the  defendant  knew  that  the  represen- 
tations which  It  was  allegred  were  made  were 
untrue.  There  was  no  testimony  to  show 
what  the  real  value  of  the  stock  which  the 
plalntlir  purchased  was  at  the  time  she  pur- 
chased it.  Other  facts  appear  in  the  opinion 
of  the  Supreme  Court. 

The  trial  judge  entered  a  compulsory  non- 
snit,  wliich  the  court  in  banc  subsequently 
refused  to  take  off.    Plaintiff  appealed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, M0SCHZI8KEB,  FBAZBR,  and  WAJO- 
lilNO,  JJ. 

Trevor  T.  Matthews,  of  Philadelphia,  for 
appellant.  William  T.  Connor  and  John  R. 
K.  Scott,  both  of  Philadelphia,  for  appellee. 

PER  CURIAM.  This  is  an  acti<»  In  deceit 
for  the  recovery  of  damages  which  the  appel- 
lant avers  she  sustained  by  reason  of  fraud 
practiced  upon  her  by  the  appellee  in  induc- 
ing her  to  buy  certain  mining  stock.  From 
the  refusal  of  the  court  to  take  off  the  non- 
suit entered  when  the  plaintiff  closed  her 
case  we  have  this  appeal.  Our  examination 
of  the  testimony  has  satisfied  us  that  the 
nonsuit  was  properly,  entered,  and  the  action 
of  the  court  below  in  refusing  to  take  it  off 
is  sustained  for  the  following  reasons  given 
by  the  learned  trial  Judge  in  directing  it  to 
be  entered: 

"We  do  not  know  but  what  Mrs.  Fischer  may 
have  sold  the  stock  before  the  company  came  to 
disaster,  if  it  did  come  to  disaster.  We  do  not 
know  anything  about  it.  There  is  no  evidence 
that  she  sustained  any  damage  at  all,  but  the 
thing  which  influences  me  in  granting  a  non- 
suit Is  that  there  is  no  evidence  that  Mr.  Taylor 
deceived  Mrs.  Fischer  intentionally,  that  is  to 
say,  that  he  said  something  which  he  knew  was 
not  true,  or  that  be  said  something  so  wild  and 
extravagant  and  reckless  that  an  inference  could 
be  drawn  that  be  knew  it  could  not  be  true." 

Judgment  affirmed. 


(2S7  Pa.  US) 

In  re  CHAMBERLAIN'S  ESTATE. 

Appeal   of  DOOLING. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

1.  OONVEBSIOH     4=915(1)  — RSA.LTT—RZQUI- 
BITES. 

To  work  an  equitable  conversion  of  realty 
there  must  be  either  a  positive  direction  to  sell 
or  an  absolute  necessity  therefor  in  order  to 
execute  the  will,  or  such  a  blending  of  real  and 
personal  estate  in  the  will  as  to  clearly  show 
that  testator  intended  to  create  a  fund  out  of 
both  real  and  personal  estate  and  to  bequeath 
the  fund  as  money. 

[Ed.  Note. — For  other  cases,  see  Conversicm, 
Cent.  Dig.  |i  28,  29,  33-35,  52.] 

2.  Conversion       ®=>16(1)  —  Discbetiorabt 

POWEB. 

A  bare  power  of  conversion,  such  as  a  dis- 
cretionary power,  will  not  work  a  conversion 
until  exercised. 

[Ed.  Note.— For  other  cases,  see  Conversion, 
Cent  Dig.  S  3&] 


8.  OonvERBioiT  4=si5Ct) — ^BixiroiKo  or  Rxal 

AND  Pebsonax  Estate. 
The  mere  blending  of  real  and  personal  es- 
tate without  a  clear  bitent  to  create  a  common 
fund  and  to  bequeath  it  as  money  wHI  not  oon- 
stitute  a  conversion. 

[Ed.  Note. — For  other  cases,  see  Ccmversion, 
Cent  Dig.  {J  28,  29,  3a-35,  S2.1 

4.  Taxation   «=>867(1)— Inhkbitanck  Tax— 

convkbsion. 
A  nonresident  testator  owning  personal 
property,  and  owning  real  estate  in  tnie  state, 
bequeathed  legacies  and  made  a  bequest  to  a 
charitable  institution  and  also  made  it  his  rerid- 
uary  legatee,  and  provided  that  if  the  estate 
should  be  insufficient  to  meet  the  bequests,  the 
deficiency  should  be  deducted  from  the  chari- 
table bequest,  and  gave  his  executor  power  to 
sell  realty  in  his  discretion  and  to  execute  deeds 
therefor.  Held,  that  the  will  did  not  work  a 
conversion  of  the  realty,  so  that  it  was  liable 
to  a  collateral  inheritance  tax  in  the  state. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  |  1681.] 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

John  T.  Doollng,  executor  of  the  will  of 
Leander  T.  CSiamberiain,  deceased,  appeals 
from  a  decree  dismissing  an  appeal  from  a 
decision  of  the  register  of  wills  assessing 
a  collateral  inheritance  tax  upon  the  real  es- 
tate of  the  decedent    Appeal  dismissed. 

Argued  before  BROWN,  C.  J.,  and  POT. 
TB2R,  MOSCHZISKEfi,  FRAZER,  and  WAL- 
LING, JJ. 

Henry  B.  Patton  and  Howard  Lewis  Fus- 
sell,  both  of  Philadelphia,  for  appellant 
William  M.  Boenning,  of  PhiladelpUa,  for 
the  Commonwealth. 

WALLINO,  J.  The  question  in  this  case 
is.  Does  testator's  will  work  an  equitable 
conversion  of  his  real  estate?  Dr.  Leander 
T.  Chamberlain,  a  clergyman  of  the  dty  of 
New  York,  made  his  last  will  in  1909.  and 
died  in  1913,  and  thereafter  the  will  was 
duly  probated.  It  was  drawn  by  testator, 
contains  14  paragraphs,  and  provides  for  the 
payment  of  his  debts  and  funeral  expenses 
and  for  the  care  of  his  burial  lot,  bequeaths 
a  niece  all  his  personal  chattels,  makes  be- 
quests aggregating  $65,000,  to  certain  named 
religious,  benevolent,  and  scientific  organi- 
zations; also  gives  to  a  certain  institute,  lo- 
cated in  Turkey,  which  he  had  projected  and 
which  was  under  his  fostering  care^  a  bequest 
of  $100,000,  and  makes  the  Institute  bis  re- 
siduary legatee.  The  will  further  provides 
that,  should  testator's  estate  prove  Insuffi- 
cient to  meet  all  of  the  devises  and  bequests, 
the  deficiency  to  be  deducted  from  the  $100,- 
000  bequest 

When  the  will  was  made  the  testator's  per- 
sonal estate  amounted  to  about  $30,000,  and 
at  his  death  to  about  $10,000;  and  he  was 
the  owner  of  real  estate  situate  in  Colorado. 
Massachusetts,  and  Pennsylvania.  Dr.  Cham- 
berlain's income  was  sufficient  to  meet  hla 
personal  expenses,   and   he  also  derived    a 


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815 


small  revenne  from  the  sale  of  books  of 
n-hicb  be  was  the  author.  Prior  to  the  mak- 
ing of  his  will,  and  as  a  result  of  the  San 
Frandsoo  fire,  he  had  suffered  financial  loss- 
es from  shrinkage  of  the  value  of  stocks 
tield  by  him  in  certain  fire  Insurance  com- 
panies. His  estate  was  derived  from  bis 
wife,  the  late  Frances  Iiea  Ohamberlain,  who 
died  in  1894;  and  his  several  charitable  t>e- 
quests  were  given  largely  to  perpetuate  her 
memoir,  and  to  the  Institutions  in  wtilch  she 
bad  shown  special  Interest  Jolm  T.  Doollng, 
Dsq.,  of  New  York,  was  made  saia  executor 
of  the  will;  and  authority  to  sell  real  estate 
was  conferred  upon  him  in  the  following  lan- 
guage: 

"And  I  hereby  grant  to  and  confer  on  the  said 
John  T.  Doollng,  full  power  to  sell  any  or  all 
of  my  real  estate,  either  at  public  or  private 
•ale,  at  suc^  time  or  times,  npon  soch  terma 
and  for  such  price  or  prices,  as  to  him  shall 
wem  best,  and  upon  snch  sale  or  sales  to  exe- 
cute and  aeiiver  to  the  purchaser  or  pnrcbasers 
deeds  or  conveyances  in  fee  simple  or  any  less 
estate  as  the  case  may  be." 

[1, 2]  The  real  estate  in  Pennsylvania  was 
appraised,  for  the  purpose  of  collateral  inher- 
itance tax,  at  the  sum  of  $62,210;  but,  as 
testator  was  a  nonresident,  it  is  not  liable  to 
such  tax  unless  it  retains  its  character  as 
real  estate.  The  learned  auditing  Judge, 
and  orphans'  court,  held  there  was  no  con- 
version, and  that  the  real  estate  as  such  was 
liable  for  the  tax,  from  which  the  executor 
took  this  appeaL 

In  Hunt's  Appeal,  106  Pa.  128,  141,  Mr. 
Justice  Paxson,  spealdng  for  this  court,  says: 

"In  order  to  work  a  couTersion,  there  must 
be  eitlier:  First,  a  positive  direction  to  sell; 
or  second,  an  absolute  necessity  to  sell  in  order 
to  execute  the  will ;  or  ttiird,  such  a  blending  of 
real  and  personal  estate  by  the  testator  in  his 
wiU  as  to  clearly  show  tliat  he  intended  to  cre- 
ate 9  fund  out  of  lx>th  real  and  personal  estate, 
and  to  bequeath  the  said  fund  as  money." 

Here  there  is  a  discretionary  poww  of  sale, 
but  no  positive  direction  to  selL  A  l>are 
power  of  sale,  such  as  a  discretionaiy  iMwer, 
will  not  work  a  conversion  until  exercised. 
Peterson's  Appeal,  88  Pa.  397;  Sheridan  v. 
Sheridan,  136  Pa.  14, 19  Atl.  1068;  Darlington 
V.  Darlington,  160  Pa.  65,  28  Atl.  503.  And, 
fk»  the  residuary  legatee  could  elect  to  take 
tlie  real  estate  as  such  and  pay  the  pecuniary 
legades,  there  might  be  no  atoolute  necessity 
to  sell  In  order  to  execute  the  will  here  in 
question. 

[3]  Mere  blending  of  real  and  personal  es- 
tate without  a  dear  and  indubitable  intent 
to  create  a  common  fund  and  bequeath  it  as 
money  will  not  constitute  a  conversion. 
Llndley's  Appeal,  102  Pa.  235.  Such  blending 
will  create  a  diarge  upon  the  land,  but  to 
produce  a  conversion  there  must  also  be  an 
intent  to  bequeath  the  fund  so  created  as 
money.    As  was  said  by  Judge  Penrose: 

"The  question  of  conversion  is  to  l>e  determin- 
ed from  the  will  itself,  and  is  not  affected  by 
tlie  accidental  fact  that  the  personal  estate  may 


prove  insnffident  for  the  payment  of  legades." 
Cuiiy's  Estate^  19  PhUa.  92. 

Conversion  is  a  matter  of  intention,  and  it 
most  have  been  in  the  mind  of  the  testator 
when  the  will  was  made.  The  law  seems  to 
be  that,  "A  necessity  to  sell  real  estate  which 
was  not  foreseen  by  the  testator  will  not 
work  a  conmston." 

[4]  The  provlalMi  in  the  wUl  as  to  the 
abatement  of  the  $100,000  bequest  in  efFect 
makes  it  a  pcut  of  the  residuary  estate; 
and  testator  may  have  antiditated  that  his 
personal  estate  would  ultimately  prove  suf- 
fldent  to  meet  the  other  legadea.  In  fact 
mdi  personal  estate  had  t)een  mndi  larger 
tlian  it  was  when  the  will  was  made.  Dr. 
Cbamt>erlaln  may  have  Intended  to  dispose  of 
parts  of  hia  real  estate  In  his  lifetime,  as 
in  fact  he  endeavored  to  do.  There  may  also 
have  been  other  reasons  wliy  he  antldpated 
that  his  personal  estate  would  be  Increased 
before  his  death.  This  case  is  not  mled  by 
Vanuxem'a  Estate,  212  Pa.  815,  61  Atl.  876, 
1  U  B.  A.  (N.  S.)  400,  for  there  the  sale  was 
expressly  authorized  for  the  purpose  "of  ad- 
ministration, distribution  or  otherwise,"  lan- 
guage not  found  in  the  will  of  Dr.  Cliamber- 
lain;  as  therein  no  reason  or  object  is  ex- 
pressed for  the  discretionary  power  of  sale. 
Tlie  law  does  not  favor  a  conversion,  the 
presumption  is  against  it,  and  in  our  opinion 
the  language  of  the  will  in  question  does  not 
work  a  conversion  of  the  real  estate. 

The  assignments  of  error  are  overruled, 
and  the  appeal  is  dismissed  at  the  costs  of 
testator's  estate. 

(167  Pa.  ISS) 

COSMOS    BUILDING    ft   LOAN    ASS'N    ▼. 
COUBTBNAT. 


(Supreme  Court  of  Pennsylvania. 
1917.) 


March  12, 


Jxn>0UKNT    «s»162(4)  —  DiSOHABOB— IRSTTFFI- 

cxENT  Affidavit  or  Detensx. 
A  rule  to  show  cause  why  a  judgment  en- 
tered for  want  of  a  suffident  afiSdayit  of  defense 
should  not  l>e  opened  was  properly  discharged, 
where  the  testimony  in  support  of  the  petition 
for  relief  was  insuffldent  to  sustain  its  aver^ 
ments. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  t  322.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Action  by  the  Cosmos  Building  ft  Loan 
Assodation  against  Patrick  J.  Courtenay. 
Judgment  discharging  a  rule  to  open  judg- 
ment for  want  of  a  suffident  affidavit  of  de- 
fense discharged,  and  defendant  appeals. 
Dismissed. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
ART, MOSCHZISKER,  FBAZER,  and  WAL- 
LING, JJ. 

B.  H.  Locke,  of  Philadelphia,  for  appel- 
lant.   David  Bortin,  Jacob  Singer,  and  E^man- 
i  uel  Furth,  all  of  Philadelphia,  for  appellee. 


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101  ATIiANTlO  REPOBTBK 


(Pa. 


PEU  CURIAM.  Tbe  Judgment  In  this 
case  was  entered  for  want  of  a  suffldent  affi- 
davit of  defense.  Shortly  after  It  was  en- 
tered a  rule  was  granted,  upon  the  applica- 
tion of  defendant,  to  show  canse  why  It 
should  not  be  opened  for  reasons  set  forth  In 
his  petltton  for  relief  from  It.  The  burden 
was  upon  him  to  support  tbe  averments  of 
fact  which  he  made  in  asking  that  the  judg- 
ment be  opened,  and  to  negative  the  aver- 
ments of  fact  contained  In  the  answer  to  bis 
petition.  After  a  very  careful  review  of 
what  he  showed  in  support  of  bis  aver- 
ments, the  learned  court  below  concluded 
that  they  had  not  been  supported  by  suffi- 
cient evidence,  and  the  rule  to  show  cause 
was  discharged.  We  concur  In  this  conclu- 
sion, and  the  appeal  is  dismissed  at  appel- 
lant's  costs. 

(257  Fa.  166) 

In  re  VAN  BBIL'S  ESTATa    In  re  orTTO'S 
BSTATB.    Appeal  of  COMMONWEAI/TH. 

(Supreme  0>urt   of  Pennsylvania.     March  12, 
1»17.) 

Taxation  €=»896(6)  —  Iwheritawcb  Tax  — 
Stocks  and  Bonds— Deduction. 
The  amounts  paid  as  a  New  Jersey  transfer 
tax  on  stocks  and  bonds  should  be  deducted  in 
appraising  the  clear  value  of  an  estate  subject 
to  collateral  inheritance  tax  in  this  state,  where 
such  transfer  tax  is  a  charge  upon  the  stocks 
and  bonds,  and  the  value  thereof  is  reduced  by 
the  amount  of  the  tax. 

[Ed.  Note.— For  .  other  cases,  see  Taxation, 
C^ent  Dig.  §  1719.1 

Appeal  from  Orphans'  Ck>urt,  Pblla'del- 
phla  Cyounty. 

Appeals  by  the  Oommonwealtta  from  de- 
cree affirming  appraisements  of  the  register 
of  wills  for  purpose  of  settling  collateral 
inheritance  taxes  in  the  estate  of  Mary  Van 
Bell,  deceased,  and  In  re  Estate  of  Eliza 
Otto,  deceased.    Dismissed. 

Argued  before  BBOWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WALLr 
ING,  JJ. 

In  Van  Bell's  Estate: 

John  Hyatt  Naylor,  Special  Deputy  Atty. 
Gen.,  and  Francis  Shunk  Brown,  Atty.  Gen., 
for  the  Commonwealth.  B.  W.  Archbald,  Jr., 
of  Philadelphia,  for  appellee. 

In  Otto's  Estate: 

H.  Horace  Dawson,  Deputy  Atty.  Gen., 
and  Francis  Shunk  Brown,  Atty.  Gen.,  for 
the  Commonwealth.  Howard  H.  Tocum,  of 
Philadelphia,  for  appellees. 

PER  GURIABfl.  These  two  appeals  were 
argued  together.  The  contention  of  the  com- 
monwealth in  each  of  them  is  that,  in  ap- 
praising the  dear  value  of  an  estate  subject 
to  collateral  Inheritance  tax  in  this  state, 
tbe  sums  paid  as  New  Jersey  transfer  tax 
upon  stocks  and  bonds  should  not  be  deduct- 
ed. Each  of  the  learned  courts  below  held 
such  deduction  proper,  and  each  api>eal  is 


dismissed  with  costs  upon  the  following  from 
the  opinion  of  the  president  Judge  of  the  or- 
phans' court  of  Montgomery  county,  which  is 
in  accord  with  the  view  of  the  orphans'  court 
of  the  county  of  Philadelphia : 

"The  ooUatcrol  inheritance  tax  imposed  by 
our  state  is  upon  the  clear  value  of  the  proper- 
ty or  estate  passing  to  the  legatee  or  aev&ee. 
The  transfer  tax  of  Now  Jersey  is  made  a 
chai^  on  the  stocks  of  its  corporations  be- 
longing to  a  resident  or  nonresident  passing  by 
will  or  intestate  law,  which  must  be  paid  be- 
fore they  can  be  transferred  by  the  executor  or 
administrator.  The  value  of  the  stock  is  re- 
duced by  the  amonnt  of  tbe  tax  which  the  execu- 
tor or  administrator  must  pay.  Its  net  worth 
passes  to  those  who  arc  entitled  to  the  estate 
under  the  will  of  this  testator.  We  conclude 
that  the  transfer  tax  of  New  Jersey,  being  a 
charge  imposed  upon  the  stocks  of  corpora- 
tions of  that  state  owned  by  tho  decedent,  s 
tax  upcm  the  property,  necessary  to  be  paid 
by  the  executors  in  order  to  reduce  the  same  to 
DOBsession  for  the  purposes  of  administratioo 
and  distribution,  tho  amount  thereof  was  prop- 
erly allowed  by  the  appraiser  in  finding  the  net 
value  of  the  estate  liable  for  collateral  inherit- 
ance tax." 

(2CT  Pa.  86) 
WILSON  v.  MITTON. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

Municipal  Corporations  «=706(5) — Coixi- 
8I0N  IN  Street— Question  for  Jury. 
In  trespass  for  damages  for  personal  injury 
when  struck  by  defendant's  horse  while  endeavor- 
ing to  cross  the  street,  evidence  h«li  to  sustain  a 
judgment  for   plaintiff. 

[Ed.  Note.— For  other  cases,  see  Munidpal 
Corporations,  Cent.  Dig.  g  1518.] 

Appeal  from  Ckwrt  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  May  Wilson  against  John  F. 
Mitton,  to  recover  damages  for  personal  in- 
jury. Judgment  for  plalatifC,  and  defendant 
appeals.    Affirmed. 

From  the  record  It  appeared  that  on  April 
3, 1915,  about  11  a.  m.,  the  plaintiff,  a  woman 
86  years  of  age,  was  walking  north  on  the 
east  side  of  Twelfth  street,  In  the  dty  of 
Philadelphia.  She  Intended  to  cross  Market 
street,  and  when  she  came  to  the  south  curb 
of  Market  street  at  the  east  side  of  Twelfth 
street,  she  stopped  on  tbe  curb  a  few  minutes 
until  she  saw  the  way  was  clear.  She  saw  a 
west-bound  car  standing  on  the  northerly 
side  of  Market  street  and  a  south-bound 
Twelfth  street  car  at  the  regular  stopping 
place  on  Twelfth  street  north  of  Market 
street  She  waited  until  the  Twelfth  street 
car  left  tbe  stopping  place  and  began  to  cross 
Market  street.  The  highway  of  Market  street 
at  this  point  is  62  feet  wide.  At  the  time  the 
car  left  this  point  she  noticed  a  wagon  going 
south  in  the  easterly  part  of  the  highway  of 
Twelfth  street  alongside  of  the  car.  Under 
the  traffic  regulations  In  Philadelphia  the 
traffic  moves  southward  only,  on  Twelfth 
street,  and,  when  it  is  moving,  i>ede8trians  on 
the  crosswalks  are  allowed  to  cross  north  and 


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WASHINGTON  t.  GULF  REFINING  CO. 


317 


south  across  Market  street  at  the  east  and 
west  sides  of  Twelfth  street  While  the 
sonth-bound  traffic  is  moving  on  Twelfth 
street,  the  east  and  west-bound  traffic  on  Mar- 
ket street  la  stopped  entirely.  The  plaintiff, 
observing  that  other  people  were  beginning 
to  cross  Twelfth  street,  and  seeing  nothing 
coming  east  or  west,  proceeded.  She  was 
holding  an  umbrella  over  her  right  shoulder, 
^yhlch  did  not  Interfere  with  her  view.  She 
was  walking  directly  on  the  crosswalk. 
When  she  came  to  the  south-bound  track  she 
looked  about  again  and  then  saw  that  the 
horse  had  suddenly  been  turned  from  Its 
southerly  conrse  Into  an  easterly  course  and 
was  directly  upon  her.  She  was-  knocked 
down  by  the  horse  and  severely  Injured.  It 
was  snowing  at  the  time.  Verdict  for  plain- 
tiff for  13,450,  and  Judgment  thereon.  De- 
fendant appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TRBZAT,  POTTEE,  STEWAET,  and  FRAZ- 
BB,  JJ. 

Wlnfield  W.  Crawford  and  Robert  P.  Shlck, 
both  of  Philadelphia,  for  appellant  Victor 
Frey  and  Augustus  Trask  Astaton,  both  of 
Philadelphia,  for  appellee. 

PSIR  CURIAM.  This  is  a  close  case,  and 
the  Jury  might  very  fairly  have  found  in  fa- 
vor of  the  defendant,  not  only  on  the  question 
of  the  alleged  negligence  of  Ills  driver,  but 
also  cm  the  contributory  negligence  of  the 
plaintiff.  Wte  are  of  the  Opinion,  however, 
after  an  examination  of  all  the  testimony, 
that  both  of  these  questions  were  for  the  Jury, 
and,  finding  nothing  in  any  of  the  assign- 
ments of  error  calling  for  a  reversal  of  the 
>adgment,  it  is  affirmed. 


(167  PiL  lET) 

WASHINGTON  v.   GULF  REFININO   00. 

(Supreme  Court  of  Pennsylvania.    March  12, 
1917.) 

HinriciFAi,  CosPOBATiONB  4s»706(6,  7) — Coi.- 

IJBIOIf     OF    AUTOVOiBILBS  —  QUSSTIOH     FOB 

JtmT— Neouoencb  and  Contbibutobt  Neo- 

UOXNCB. 

In  action  by  employ^  of  ns  and  electric 
eompany  for  personal  injury  from  a  collision 
between  its  auto  truck  in  which  he  was  going  to 
a  fire  and  defendant's  auto  truck  coming  from 
the  opposite  direction,  held,  on  the  evidence,  that 
defendant's  negligence  and  plaintiff's  contribu- 
tory negligence  were  questiona  for  the  jury. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  (  1518.] 

Appeal  from  Court  of  Common  Fleas, 
Montgomery  County. 

Trespass  by  Schuyler  L.  Washington 
asalnst  the  Gulf  Refining  Company  to  recov- 
er damages  for  personal  injuries.  Judgment 
for  plaintiff,  and  defendant  appeals.  Af- 
flnned. 

It  appeared  that  the  plaintiff  was  an  em- 
ployfi  of  the  Suburban  Gas  &  Electric  Com- 


pany, and  on  October  27,  1914,  sustained  an 
injury  to  his  leg  while  riding  in  one  of  the 
company's  small  automobile  trucks  to  render 
assistance  at  a  fire.  There  was  cme  seat  on 
the  truck,  and  this  was  too  small  for  three 
men  to  sit  on  comfortably  and  leave  room 
for  the  driver  to  operate  the  car.  Plaintiff, 
who  was  the  last  of  the  three  men  to  get  on 
the  truck,  first  sat  partly  on  the  center  of 
the  seat  between  the  driver  and  the  other 
occupant  of  the  car  and  partly  on  the  tatter's 
lap.  There  was  a  canvas  curtain  on  the 
front  of  the  car  with  mica  squares  In  front 
on  a  line  with  the  driver's  eyea.  Plaintiff 
testified  that  from  his  elevated  position  on 
the  seat  his  head  was  too  high  for  him  to 
see  through  the  mica  square  in  the  curtain, 
and  as  it  was  necessary  for  him  to  be  on  the 
lookout  as  the  exact  location  of  the  fire  was 
not  known,  he  assumed  a  seat  on  the  floor 
of  the  truck  with  his  legs  hanging  over  the 
ledge  of  the  body  of  the  car,  but  not  extend- 
ing out  as  far  as  the  wheels.  His  legs  were 
sufficiently  far  from  the  front  wheel  and  ax- 
le that  had  the  wheel  turned  against  the 
body  of  the  car  it  could  not  have  touched 
his  legs  or  feet. 

The  defendant's  large  oil  tank  truck  ap- 
proached the  gas  company's  truck  from  the 
opposite  direction,  and,  although  it  was  8 
o'clock  and  dark,  plaintiff  and  his  compan- 
ions noticed  the  defendant's  truck  when  the 
two  cars  were  500  feet  apart  Although  the 
evidence  was  undisputed  to  the  effect  that 
the  small  truck  approadied  on  its  right  side 
of  the  highway  and  gave  ample  room  for  the 
large  truck  to  pass,  a  collision  occurred  be- 
tween the  two  machines,  the  left-Mnd  wheel 
of  the  defendant's  truck  striking  the  hub 
cap  of  the  left  front  wheel  of  the  small  truck, 
forcing  the  front  axle  of  the  latter  from  Its 
fastenings  and  pushing  it  back  so  that  the 
wheel  or  axle  pressed  the  plaintifTs  leg 
against  the  t>ody  of  the  small  truck  seri- 
ously injuring  it 

PlaintifTs  witnesses  testified  that  at  the 
time  of  the  collision  their  truck  was  stand- 
ing still,  while  defendant's  witnesses  declar- 
ed that  it  was  in  motion  and  going  at  the 
rate  of  16  or  20  miles  an  hour,  and  that  the 
accident  occurred  as  a  result  of  the  small 
truck  turning  suddenly  to  its  right  before 
the  two  cars  had  completely  cleared  each 
other. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FR^ZE:R,  and  WALL- 
ING, JJ. 

O.  Townley  Larzelere,  of  Norrlstown,  and 
Franklin  L,  Wright  and  Nicholas  H.  Larze- 
lere, both  of  Philadelphia,  for  appellant 
Aaron  S.  Swartz,  Jr.,  John  M.  Dettra,  Sam- 
uel H.  High,  and  Montgomery  Evans,  all  of 
Norristown,  for  appellee. 

PER  CURIAM.  We  have  not  been  con- 
vinced that  the  learned  trial  Judge  erred  in 


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101  ATDANTIO  RiaPORTBR 


(Pa. 


refusing  to  take  this  case  from  tbe  lury. 
Under  the  testimony  It  was  tor  tbem  to  pass 
upon  the  negrllgence  of  the  defendant  and 
tbe  contrlbntory  negligence  of  tbe  plaintiff, 
and,  as  'nothing  in  tbe  third,  fourth,  fifth, 
sixth,  and  seventh  assignments  of  error  calls 
for  a  retrial,  the  Judgment  Is  affirmed. 


(2o7  Pa.  22S) 
SUDNIK  V.  SUSQUEHANNA  COAI.  C50. 

(Supreme  Onurt  of  Pennsylvania.     March  19, 
1917.) 

Masteb  and  Skbvaht  «s>278(1<9  —  Faii.ube 
TO  FuBNiBH  Mink  Sxra>FOBTS— Neouoknos— 

SUFnCIBNCT  OF  EVIDXNCE. 

In  action  by  miner  for  personal  injury  from 
fall  of  the  roof  of  tbe  mine  alleged  to  have  been 
caused  by  failure  to  furnish  sup^rts  after  re- 
quest therefor,  evidence  held  sufficient  to  sustain 
a  verdict  for  plaintiff. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Ont.  Dig.  {  064.] 

Appeal  from  (;k)urt  of  (Common  Pleas,  Phil* 
adelpbia  County. 

Trespass  by  Charles  Sndnlk  against  tbe  Sus- 
quehanna Coal  Company,  to  recover  damages 
for  personal  injury.  Verdict  for  plaintiff  for 
$e,0(X),  and  judgment  thereon,  and  defendant 
appeala    Affirmed. 

Argued  before  BROWN,  0.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAI<- 
LING,  JJ. 

W.  H.  M.  Oram,  of  Shamokln,  Henry  A. 
Gordon,  of  Wilkes-Barre,  and  John  Hampton 
Barnes,  of  Philadelphia,  for  appellant  Ber- 
tram D.  Rearlck,  of  Philadelphia,  for  aroel- 
lee. 

MOSCHZISKER,  J.  The  plaintiff  recov- 
ered a  verdict  to  compensate  him  for  personal 
injuries  alleged  to  have  been  caused  by  bis 
employer's  negligence;  judgment  was  enter- 
ed thereon,  and  tbe  defendant  has  taken  this 
appeal. 

The  various  Issues  involved  were  submit- 
ted to  the  jury  in  a  comprehensive  charge, 
which  is  not  complained  of;  but  the  appel- 
lant contends  that,  on  the  evidence,  it  was 
entitled  to  binding  instructions,  and  now 
should  have  Judgment  non  obstante  veredicto. 

A  careful  reading  of  the  testimony  has 
not  convinced  us  that  the  case  properly  could 
have  been  withdrawn  from  the  Jury.  When 
tbe  evidence  is  viewed  in  the  light  most 
favorable  to  tbe  plaintiff,  as  the  verdict  shows 
tbe  Jury  looked  upon  it,  a  mind  desiring  only 
to  do  Justice  betn'e^i  the  parties  might  find 
therefrom  the  following  material  facts:  The 
plaintiff  was  a  laborer  In  the  employ  of  the 
defendant  company.  June  24,  191S,  while 
working  In  the  latter's  colliery,  he  was  injur- 
ed by  tbe  fall  of  a  large  piece  of  hard  ma- 
terial from  the  roof  Immediately  over  the 
place  where  he  was  mining.  The  dangerous 
condition  at  that  point  was  In  no  sense  ob- 
vious, and,  bad  tbe  roof  been  supported  by 
timbers   placed   thereunder  in   tbe   manner 


usually  pursued  by  miners,  in  order  to  insure 
safety,  the  plaintiff  would  not  have  been  in- 
Jured;  there  had  been  no  timbers  suitable  for 
this  purpose  In  or  about  the  location  In  ques- 
tion for  at  least  two  weeks  prior  to  the  ac- 
cident; three  days  before  his  Injury,  tbe 
plaintiff  called  at  the  office  of  defendant's  gen- 
eral superintendent,  where  the  latter  official 
and  the  mine  foreman  were  together  at  tbe 
time,  and  asked  for  timber ;  tbe  office  where 
he  made  this  application  was  the  usual  place 
for  the  purpose;  the  superintendent  and  fore- 
man told  the  plaintiff  "to  go  ahead,"  and 
they  would  send  the  timber  to  him.  At  tbe 
time  he  made  this  request  he  was  working  In 
shoot  31,  mining  a  "monkey  beading,"  or  air 
passage,  into  tbe  adjoining  shoot,  32.  No  tim- 
ber arrived,  and  on  the  day  of  the  accident, 
while  tbe  plaintiff  was  working  in  No.  32, 
he  again  applied  therefor  to  the  same  two 
officials,  being  told  a  second  time  to  "go 
ahead ;  •  •  •  we  vrill  send  it."  He  pro- 
ceeded with  his  work,  and  a  short  time  there- 
after the  accident  occurred. 

It  Is  to  be  noted  that,  when  the  plaintiff 
first  applied  to  the  foreman  and  tbe  mine 
superintendent,  he  did  not  specify  timber  to 
be  used  in  shoot  31,  and  there  is  nothing  in 
tbe  testimony  to  indicate  that  either  of  the 
latter  so  understood  his  request  Apparently, 
he  desired  this  material  for  use  in  tbe  general 
locality  where  he  was  working,  and,  as  al- 
ready pointed  out  the  Job  at  which  he  was 
engaged,  from  the  time  of  the  first  request 
until  the  happening  of  tbe  accident,  was  In 
or  about  sboota  31  and  32  and  tbe  passage- 
way between  tbem.  With  these  facts  In  mind, 
we  feel  the  evidence  was  quite  sufficient  to 
put  tbe  defendant's  superintendent  on  notice 
that  the  plaintiff  needed  timber,  and,  there- 
under. It  was  for  the  jury  to  say  whether  or 
not  the  renewed  request  on  the  day  of  the 
accident  was  enough  to  fix  tbe  superintendent 
with  knowledge  that  the  mine  foreman  had 
failed  to  comply  with  plaintiff's  previous  de- 
mand, made  three  days  before.  Under  the 
facts  in  tikis  case,  Collins  v.  Northern  Anthra- 
cite CkMil  Co.,  241  Pa.  66,  88  Atl.  75,  Is  a  con- 
trolling authority,  which  tbe  learned  court  be- 
low very  properly  followed. 

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


ASHBT  V.  BUTZ. 


(857  Pa.  230) 


(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

Bnxs  AND  Notes  «=537(1)  — Aotioii  — Db- 

VENBB— DiEECTKD   VeBDIOT. 

In  action  on  a  note  by  the  executrix  of  a 
decedent's  estate  against  the  maker,  defended  on 
the  ground  of  its  cancellation  under  an  agree- 
ment with  decedent,  Aeld,  on  tbe  evidence,  that 
a  directed  verdict  for  plamtiff  was  proper. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  $J  1862,  1871-1875,  1891- 
1883.] 


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IK  RE  PENROSE'S  ESTATX 


319 


Appeal  from  Court  of  Comnuu  Pleu,  Le- 
lil^  CoontT. 

Assumpsit  on  a  note  by  Harriet  AAby, 
executrix  of  the  estate  of  Henry  S.  Keck,  de- 
ceased, against  Harvey  B.  Butz.  Verdict  di- 
rected for  plalntur  for  $2^64.81  and  Judg- 
moit  thereon,  and  defendant  appeals.  Af- 
flrmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZBR,  and  WALL- 
ING. JJ. 

George  If.  Lntz  and  Calvin  B2.  Amer,  both 
of  Allentown,  for  appellant  Allen  W.  Hagen- 
back  and  Fred  £L  Lewis,  both  of  AUentown, 
for  appellee; 

PE:r  curiam.  Tlie  defense  of  the  appel- 
lant in  this  action,  bronght  to  recover  the 
amount  due  on  a  promissory  note  which  he 
executed  and  delivered  to  appellee's  decedent, 
is  that  the  same  was  canceled  in  pursuance  of 
the  terms  of  an  agreement  entered  Into  by 
him  and  the  decedent.  Though,  under  the 
testimony,  the  agreement  was  to  have  been 
prepared  and  executed  and  the  note  canceled 
In  pursuance  of  It,  it  never  was  executed. 
There  was  merely  an  understanding  between 
the  parties  that  the  agreement  should  be 
prepared  and  executed,  but  this  was  never 
carried  out,  and  the  absolute  liability  of  ap- 
pellee on  his  obligation  bad  not  been  impaired 
at  the  time  of  the  death  of  Henry  8.  Keck. 

This  was  the  correct  view  of  the  learned 
ooTirt  below  In  directing  the  verdict  for  plain- 
tiff, and  the  ludgment  is  therefore  affirmed. 


(2E7  Pa.  ai> 

In  re  PEOmOSE'S  ESTATE. 

Appeal  of  MOORE  et  aL 

(Sapieme  Court  of  Pennsylvania.    March  10, 
1»17.) 

Pebpeiuitus  «=»8(3)— Dkvisb  —  CaAarTABi.E 

Use. 
A  bequest  of  real  and  personal  property  in 
trost  for  a  son  for  life,  and  on  his  death  to  his 
issue,  to  be  paid  to  them  respectiTely  upon 
reaching  21  years,  and  in  case  either  of  such  is- 
sue i^ould  die  without  issue  before  reaching 
that  age  a  devise  of  his  share  to  the  survivors, 
and  if  all  the  son's  issue  died  without  issue  be- 
fore reaching  21  then  over  to  a  charitable  use, 
violated  the  rule  ngainst  perpetuities,  and  the 
gift,  to  the  charitable  use  was  void. 

[Ed.  Note.— For  other  cases,  see  Perpetuities, 
Cent.  Dig.  {{  59,  66.] 

Appeal  from  Orphans'  Court,  Bucks  County. 

Alfred  Moore  and  David  N.  Fell,  Jr.,  exec- 
vton  of  the  will  of  B^van  R.  Penrose,  appeal 
from  a  decree  sustaining  exceptions  to  re- 
I>ort  of  auditor  in  the  estate  of  Pauline  R. 
Penrose,  deceased.  Reversed,  and  report  of 
auditor  absolutely  confirmed. 

Ryan,  P.  J.,  filed  the  following  opinion  In 
the  orphans'  court: 

It  appears  by  the  order  of  the  Supreme  Court 
remandmg  this  case  to  this  court  that  the  ques- 


tion whether  the  remainder  created  by  the  dece- 
dent's will  in  favor  of  the  Richland  Monthly 
Meeting  of  Friends  offends  the  rule  against 
perpetuities  was  raised  and  argued  before  that 
court.  It  had  not  been  considered  by  this  court 
or  its  auditor,  for  the  reason  that  it  bad  not 
been  raised  either  here  or  before  him.  The 
learned  auditor  found  that  the  rule  in  Shelley's 
Case  applied  to  the  devise,  and  that  therefore 
an  absolute  estate  vested  in  Evan  R.  Penrose, 
the  first  taker.  This  court  did  not  agree  with 
him  in  his  conclusion,  but  held  that  the  said 
Evan  R.  Penrose  took  but  an  equitable  estate; 
the  testatrix  having  created  an  active  trust  to 

g reserve  the  remainders  given  in  the  alternative 
1  her  will.  This  conduaion  was  not  ccMitested 
upon  the  appeal. 

The  question  now  presented  to  us  for  deter- 
mination is  this:  Is  the  gift  over  to  the  Rfclk- 
land  Monthly  Meeting  of  FViends  void  for  re- 
moteness? 'l;he  testatrix  left  a  fund  including 
iMth  real  estate  and  personal  property,  to  a 
trustee,  in  trust  for  her  son,  the  said  Evan  K. 
Penrose,  for  life,  providing  further  in  her  will 
as  follows  :'<•••  And  from  and  immedi- 
ately after  the  decease  of  my  said  son  I  give 
and  devise  and  bequeath  the  said  ground  rent 
and  moneys  unto  the  lawful  issue  of  my  said 
son  Evan  R.  Penrose  share  and  share  alike  to 
be  paid  to  them  respectively  upon  their  arrive 
ing  at  the  age  of  twenty-one  years  the  same  to 
be  put  out  at  interest  by  the  above  named  trus- 
tee and  the  interest  accruing  therefrom  to  be  ap- 
plied to  their  maintenance  and  education  re- 
spectively until  their  arrival  at  the  age  of  twen- 
tv-one  years  and  in  case  either  of  said  issue 
should  die  before  arriving  at  the  age  of  twenty- 
one  years  without  issue  I  give  and  bequeath  the 
share  of  the  one  or  ones  so  dying  unto  the  sur- 
vivor or  survivors  thereof.  And  if  all  the  lawful 
issue  of  my  son  should  die  without  issue  before 
arriving  at  the  age  of  twenty-one  years  then  I 
give,  devise  and  bequeath  the  said  ground  rent 
and  moneys  unto  Richland  Monthly  Meeting  of 
friends  (at  the  said  Borough  of  Quakertown) 
the  interest  accruing  theremm  to  be  applied 
from  time  to  time  in  accordance  with  the  direc- 
tion of  said  Monthly  Meeting." 

The  interest  given  to  the  Richland  Monthly 
Meeting  of  Friends  is  clearly  a  contingent  re- 
mainder. It  is  limited  to  take  effect  upon  the 
"dubious  and  uncertain  event"  of  the  line  of 
Eivan  B.  Penrose  becoming  extinct.  It  does  not 
vest  in  the  event  of  his  issue  failing  to  reach 
the  age  of  21.  The  testatrix  has  prescribed  the 
additional  condition  that  his  issue  must  die  be- 
fore that  age  without  issue.  It  cannot,  there- 
fore, be  said  that  under  the  provisions  of  this 
will  the  interest  of  the  Monthly  Meeting  must 
vest  not  later  than  21  years  after  a  life  in  be- 
ing at  the  creation  of  the  interest  The  rule 
is  thus  stated  in  Gray  on  Perpetuities,  {  201 : 
"No  interest  is  good  unless  it  must  vest  if  at 
all,  not  later  than  21  years  after  some  life  in 
being  at  the  creation  of  the  interest"  In  Cog- 
gins'  Appeal,  124  Pa.  10,  page  30,  16  Atl.  67B. 
page  681  [10  Am.  St  Rep.  565],  Pazson,  O.  J., 
declared :  "It  is  a  conceded  principle  that  the 
future  interest  must  vest  witldn  a  life  or  lives 
in  being  and  21  years.  It  is  not  sufficient  that 
it  may  vest  It  must  vest  within  that  time  or 
the  gift  is  void — void  in  its  creation.  Its  validity 
is  to  be  tested  by  possible  and  not  by  actual 
events.  And  if  the  gift  is  to  a  class,  and  it  is 
void  as  to  any  of  the  class,  it  is  void  as  to  all. 
Authority  is  scarcely  needed  for  so  familiar 
a  proposition.  It  is  sufficient  to  refer  to  Leake 
et  al.  V.  Robinson  et  al.,  2  Mer.  363 ;  Porter  v. 
Fox,  6  Sim.  485  ;  Blagrove  v.  Hancock,  16  Sim. 
371;  Dodd  V.  Wake,  8  Sim.  615;  Newman  v. 
Newman,  10  Sim.  51 ;  Vawdry  v.  Ueddes,  1 
Kuss.  &  M.  203;  WUliams  on  Real  Property, 
305 ;   1  Perry  on  Trusts,  |  381 ;   Lewis  on  Per- 


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(Pa. 


petuities,  4S6;  Hfllyard  r.  Miller,  10  Pa.  326; 
Smith's  Appeal,  88  Pa.  492." 

Under  the  language  employed  by  the  testatrix, 
can  it  be  said  that  the  interest  given  to  the 
Monthly  Meeting  must  vest  within  the  limit  of 
time  fixed  by  the  rule?  Had  Evan  R.  Penrose 
died  leaving  a  son  who  lived  to  be  20  and  then 
died  leaving  a  son  who  died  at  20,-  the  vesting 
of  the  interest  given  to  the  Monthly  Meeting 
would  have  been  postponed  beyond  the  period  of 
21  years  following  the  death  of  Bvan  B.  Pen- 
rose. That  this  did  not  happen  is  immateriaL 
That  it  could  have  happened,  and  post^ned  the 
vesting  of  the  interest  given  by  the  wiU  to  the 
Monthly  Meeting  beyond  the  liimit  of  time  fixed 
by  the  rule  against  perpetuities,  is  fatal  to  the 
gift  in  remainder.  Bven  if  we  accept  the  con- 
tention of  the  appellee  that  "issue,"  as  used  by 
the  testatrix,  means  "children,"  we  encounter 
the  same  difficulty  in  trying  to  escape  the  opera- 
tion of  the  rule.  We  then  find  the  testatrix 
providing  a  possible  postponement  of  the  vest- 
ing of  the  remainder  in  the  Monthly  Meeting 
until  after  the  death  of  possible  great-grand- 
-diildren  under  the  age  of  21.  We  find  in  this 
will  no  such  case  of  doubt  as  must  be  resolved 
in  favor  of  the  vesting  of  the  remainder.  We 
conclude  that  this  will  provides  a  gift  over  on 
an  indefinite  failure  of  issue.  "In  Pennsylvania 
«  gift  over  on  failure  of  issue  when  the  failure 
must  take  place  within  the  periods  prescribed 
by  the  rule  is  good,  while  a  gift  over  on  in- 
definite failure  of  issue  is  bad.  The  rule  is  the 
same,  whether  the  subject-matter  of  the  erift  is 
real  estate  or  personal  property."  Foulke  on 
Rules  Against  Perpetuities,  etc.,  page  196. 

We  have  reached  the  conclusion  that  the  gift 
over  to  the  Hichland  Monthly  Meeting  of 
Friends  was  void  in  its  creation  and  that  as  to 
that  interest  the  testatrix  died  intestate.  The 
fund  should  therefore  be  distributed  to  the 
-executors  of  Evan  R.  Penrose,  deceased.  The 
decree  of  this  court  of  August  2,  1915,  directing 
the  auditor  to  malte  distribution  to  the  Ridiland 
Monthly  Meeting  of  Friends,  should  be  reversed, 
-and  the  original  schedule  of  distribution  report- 
ed by  the  auditor  reinstated.  As  the  appeal  is 
still  pending  in  the  Supreme  Court,  this  court 
is  without  power  to  enter  a  decree  in  accordance 
with  the  foregoing  conclusions.  This  opinion  is 
respectfully  submitted  in  conformity  with  the 
order  of  the  Supreme  Court. 

The  court  dismissed  exceptions  to  the  sec- 
ond report  of  the  auditor. 

Argned  before  BROWN,  C.  J.,  and  MBS- 
TRBZAT,  STEWART,  MOSOHZISKHR,  and 
WALLING,  JJ. 


Henry  Spalding,  of  Pblladelphia,  and  Ar- 
thur M.  Eastbum,  of  Doylestown,  for  appel- 
lants. Thomas  Roes  and  George  Ross,  both 
of  Philadelphia,  for  appellee. 

PER  CURIAM.  After  argument  of  this 
aiH>eal,  at  the  January  Term,  1916,  the  fol* 
lowing  order  was  made: 

"And  now,  February  11,  1916,  it  appearing 
that  neither  the  auditor  nor  the  orphans'  court 
has  considered  or  determined  a  controlling  ques- 
tion whether  the  remainder  offends  the  rule 
against  perpetuities  which  has  been  argued  here, 
the  case  is  remanded  to  the  orphans'  court,  that 
the  parties  may  be  heard  and  the  question  may 
be  determined.  After  the  opinion  has  been  filed 
by  the  court  below,  either  party  may  move  this 
court  to  advance  the  cause  on  the  argument  Ust." 

The  record  was  accordingly  returned  to  the 
court  below,  whidi  referred  the  question  In- 
volved to  the  auditor,  who  filed  an  opinion, 
holding  that  the  remainder  offended  the  rule 
against  perpetuities  and  was  void.  Excep- 
tions to  this  report  were  dismissed  by  the 
court,  the  conclusion  of  its  opinion  being  as 
follows: 

"We  have  reached  the  conclusion  that  the 
^ft  over  to  the  Richland  Monthly  Meeting  of 
Friends  was  void  in  its  creation  and  that  as  to 
that  interest  the  testatrix  died  intestate.  The 
fund  should  therefore  be  distributed  to  the  ex- 
ecutors of  Evan  R.  Penrose,  deceased.  The  de- 
cree of  this  court  of  August  2,  1916,  directing 
the  auditor  to  make  distribution  to  the  Richland 
Monthly  Meeting  of  Friends,  should  be  reversed, 
and  the  original  schedule  of  distribution  report- 
ed by  the  auditor  reinstated.  As  the  appeal  is 
still  pending  in  the  Supreme  Court  this  court  is 
without  power  to  enter  a  decree  in  accordance 
with  the  forgoing  conclusions.  This  opinion 
is  respectfully  submitted  in  conformity  with  the 
order  of  the  Supreme  Court." 

The  conclusion  of  the  auditor,  concurred  In 
by  the  learned  court  below,  that  the  gift 
over  to  the  Richland  Monthly  Meeting  of 
Friends  Is  void  as  ofTendlng  the  role  against 
perpetuities,  is  clearly  correct,  and  the  de- 
cree appealed  from  is  now  reversed,  and  the 
report  of  the  auditor,  filed  September  11* 
1913,  is  absolutely  confirmed. 

Appeal  sustained,  at  aweUee's  costs. 


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MABANDA  ▼.  OAUUN 


321 


(«  R.  I.  m) 

MARANDA  t.  GAULIN.     (No.  5018.) 

(Snpreme   Oonrt   of    Rhode    iBland.     July   6, 
1W7.) 

Masteb  and  Sebvant  «=»288(11),  289(10)  — 
QuKsnoN  FOB  JVBT— AssxnipnoN  o?  Kisk 

— CONTBIBUTOKT  ^EGUOBNOK. 

In  an  action  by  servant  tor  injury  from 
dynamite  blast,  plaintiff  claiming  be  was  inex- 
perienced and  was  directed  to  use  a  short  fuse, 
plaintifrs  assumotion  of  risk  and  contributory 
negligence  were  for  the  jury. 

[Ed.  Note. — ^For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  gS  1079-1082,  IIOO.J 

Vincent,  J..  diasentinK. 

Exceptions  from  Superior  Oourt,  Provi- 
dence and  Bristol  Countlee;  Charles  F. 
Steams,  Judge. 

AcMon  by  Alexander  Maranda  against  Al- 
phonse  Oaulln.  Verdict  for  plaintiff,  and  de- 
fendant excepts.  Exceptions  overruled,  and 
case  lemltted,  with  directions. 

Fllj^erald  &  Elgglns,  of  Providence,  for 
plaintiff.  Eilphege  J.  Dalgnault,  of  Woon- 
tocket,  and  Boss  &  Bamefleld,  of  Providence, 
for  defendant 

PAREITDBST.  O.  X  This  is  an  action  of 
tbe  case  for  negligence,  wherein  the  plain- 
tiff, who  was  a  servant  of  tbe  defendant, 
seeks  to  recover  damages  for  injuries  claim- 
ed to  have  l>een  sostained  by  plaintiff  when 
working  under  the  direct  supervision  and 
order  of  the  defendant  as  master  on  the  23d 
day  of  September,  1912. 

Tbe  case  was  tried  before  a  Justice  of  the 
superior  court  sitting  with  a  jury  in  May, 
1916.  It  is  claimed  by  plaintiff  that  on  Sep- 
tember 23,  1012,  the  plaintiff  was  working 
with  and  for  the  defendant,  owner  of  a  farm, 
in  the  blasting  of  rocks  on  the  farm  by  tbe 
use  of  dynamite  placed  in  drill  holes;  that 
several  blasts  had  been  exploded  in  the 
mumlng;  that  a  cessation  of  work  took  place 
from  about  11:30  a.  m.  to  2:30  p.  m. ;  that 
after  2:30  p.  m.  tbe  work  of  blasting  was 
resumed  by  the  parties,  and  that  after  sev- 
eral blasts  had  been  exploded  a  blast  lighted 
by  plaintiff  exploded  so  suddenly  that  plain- 
Ufl  had  not  time  to  get  away  from  the  rock 
to  a  place  of  safety  or  even  to  turn  around, 
and  that  be  was  severely  Injured  in  the  left 
eye,  left  ear,  and  left  band ;  that  by  reason 
uf  the  injury  be  lost  bis  left  eye,  was  made 
permanently  deaf  in  bis  left  ear,  and  per- 
manently lost  the  efficient  use  of  bis  left 
band  and  suffered  greatly  during  the  Illness 
which  followed  and  as  a  result  of  necessary 
surgical  operations. 

The  method  of  blasting  was  by  placing  a 
sulfieient  amount  of  dynamite  in  the  bottom 
of  a  drill  hole  in  a  rock,  then  placing  in  con- 
tact therewith  an  explosive  cap  at  tbe  end 
of  a  powder  fuse  which  was  cut  long  enough 
to  extend  upwards  and  outwards  beyond  tbe 
drill  hole,  and  then  filling  the  driu  bole  with 


earth  pressed  down  to  cover  the  charge,  and 
then  lighting  the  fuse.  Tbe  plaintiff  claimed 
as  to  tbe  rock  which  exploded  prematurely 
that  tbe  drill  hole  was  about  four  and  one- 
half  inches  in  depth ;  that  under  orders  from 
the  defendant  tbe  plaintiff  loaded  tbe  hole 
with  tbe  dynamite,  and  received  from  the  de- 
fendant a  fuse  cut  by  tbe  defendant  about 
six  Inches  in  length  with  a  cap  attached 
thereto,  placed  it  in  the  drill  bole,  and  placed 
tbe  earth  in  the  bole,  and  found  that  the 
fuse  extended  only  about  two  Inches  above 
the  surface  of  the  rock;  that  the  defendant 
gave  him  a  match  to  light  the  fuse,  and  that 
he,  the  plaintiff,  then  said  to  defendant,  in 
substance,  that  the  fuse  was  short;  that  be 
was  afraid,  and  asked  the  defendant  what 
be  should  do  about  it;  that  tbe  defendant 
told  Mm  it  was  all  right  and  ordered  him  to 
light  it;  and  that,  acting  under  that  order, 
he  did  light  it,  with  tbe  result  above  set 
forth. 

Tbe  plaintiff  and  defendant  were  the  only 
persons  present,  at  tbe  time  of  tbe  explosion. 
Tbe  defendant's  account  of  the  occurrence 
was  in  most  respects  a  complete  denial  of  all 
tbe  material  statements  of  the  plaintiff.  He 
told  a  different  story  as  to  tbe  explosion, 
claiming  that  there  were  two  explosions,  that 
tbe  first  explosion  was  of  fuses  and  dyna- 
mite in  a  pan  or  kettle  in  which  fuses  were 
kept  and  carried  about  during  the  progress 
of  the  blasting,  and  seeming  to  claim,  though 
not  very  clearly,  that  this  explosion  of  the 
materials  In  the  pan  or  kettle  was  the  one 
which  Injured  the  plaintiff  and  was  caused 
by  plaintiff's  negligence  in  throwing  a  lighted 
match  therein,  and  that  the  explosion  of  the 
rock  occurred  thereafter,  but  was  not  the 
cause  of  the  Injury  to  the  plaintiff.  Tbe  de- 
fendant also  denied  all  of  the  plaintifTs 
statements  in  regard  to  plaintiff's  lack  of 
knowledge  and  experience  in  blasting,  and 
denied  having  exerdsed  any  supervision  or 
having  given  any  orders  to  plaintiff  or  hav- 
ing cut  any  fuses  for  plaintiff  to  use. 

At  tbe  close  of  all  the  testimony  the  de- 
fendant moved  that  tbe  jury  be  directed  to 
return  a  verdict  for  tbe  defendant  on  the 
ground  that  tbe  plaintitTs  own  testimony 
showed  that  be  had  such  knowledge  and  ex- 
perience of  blasting  and  such  appreciation  of 
the  risks  whldi  be  took,  and  of  the  danger 
attendant  upon  Us  acts,  that  he  should  be 
held  as  a  matter  of  law  to  have  assumed  the 
risk  of  what  he  did  and  to  have  been  guilty 
of  contributory  negligence  in  bis  reckless  dis- 
regard of  danger  which  was  obvious  to  him. 

Tbe  trial  judge  refused  to  direct  a  verdict 
for  tbe  defendant  as  requested.  The  case 
was  submitted  to  the  jury,  whlrfi  returned  a 
verdict  for  the  plaintiff  in  the  sum  of  $4,000. 
The  defendant  did  not  ask  for  a  new  trial 
in  the  superior  court,  but  in  due  time  filed 
and  prosecuted  his  bill  of  exceptions  to  this 
court;    and  tbe  case  Is  now  before  us  upon 


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the  bin  of  exceptions.  The  only  exception 
pressed  before  thU  court  Is  that  taken  to  the 
roUng  of  the  trial  Judge  In  denying  the  de- 
fendant's motion  for  direction  of  a  verdict 
In  his  favor. 

The  sole  question  hefore  this  court  Is 
whether  upon  the  plaintiff's  own  teetlmony, 
which  must  for  the  purpose  of  this  decision 
be  taken  as  true.  It  conclusively  appears  that 
the  plaintiff  assumed  the  risk  of  Injury  or 
was  guilty  of  contributory  negligence  as  a 
matter  of  law,  so  that  the  trial  Judge  erred 
In  submitting  the  case  to  the  Jury. 

In  substance,  the  plaintiff  testified  that 
in  1906  he  came  from  Canada,  where  he  had 
worked  on  a  farm,  and  had  had  no  expe; 
rlence  or  knowledge  whatever  of  blasting; 
that  he  went  to  work  for  the  defenldant  as  a 
farm  hand  in  1908,  and  worked  for  defend- 
ant from  that  time  (except  in  winter)  until 
the  time  of  the  Injury;  that  the  farm  of  de- 
fendant had  many  stones  and  rocks,  and 
that  during  1908  and  two  years  following 
special  men  were  employed  by  defendant 
(two  or  three  at  a  time)  to  do  blasting ;  that 
during  1908  plaintiff  did  no  such  work,  nor 
does  it  appear  to  what  extent  he  had  oppor- 
tunity to  watch  the  operation;  that  a  Mr. 
Lefebvre  (who  was  a  nephew  of  defendant 
and  had  worked  for  him  for  some  years 
before  1908)  was  at  times  working  on  the 
farm;  that  gradually  as  time  went  on  the 
plaintiff,  working  with  Mr.  Lefebvre,  learned 
to  drUl  holes  in  rocks  for  blasting,  some- 
times drilling  them  alone  In  small  rocks,  and 
sometimes  holding  the  'drill  for  Lefebvre  to 
strike  In  drilling  big  rocks.  Plaintiff  says 
that  In  doing  this  work  he  was  under  the  di- 
rection of  Lefebvre,  who  bossed  the  Job. 
Plaintiff  says  that  he  never  up  to  the  day  of 
the  Injury  lighted  any  fuses  to  set  off  blasts, 
but  that  Mr.  Lefebvre  always  did  that  after 
they  had  drilled  holes.  He  admits  that  he 
may  have  loaded  the  holes  a  few  times  with 
Qynamlte  before  that  day,  and  may  have  cut 
a  few  fuses  under  Lefebvre's  supervision, 
but  says  that  he  never  until  the  day  of  the 
injury  lighted  any  fuses  or  himself  conduct- 
ed the  operation  of  blasting,  which  was  there- 
tofore done  by  Lefebvre;  that  on  the  day 
of  the  Injury  Lefebvre  was  not  present;  that 
on  that  day  Gaulin  the  defendant  took  the 
plaintiff  to  the  farm  and  set  him  to  work  at 
blasting  rocks,  told  him  what  to  do  and 
what  rocks  to  blast,  an'd  directed  him  to  dig 
around  stones  to  loosen  them;  that  defend- 
ant carried  about  with  him  an  uncovered 
pall  or  pan  (of  metal)  in  which  were  fuses, 
caps,  and  dynamite,  and  directed  plaintiff  to 
load  the  boles  (which  appear  to  have  been 
drilled  an'd  made  ready  before) ;  that  defend- 
ant cut  all  the  fuses  and  directed  plaintiff 
to  place  the  fuses  In  the  holes.  No  sugges- 
tion Is  made  anywhere  in  the  testimony  that 
anything  dangerous  happened  in  any  of  the 
blasts  during  the  day  until  the  fifth  blast  In 
the  afternoon.     Plaintiff  In  substance  says. 


as  to  this  blast,  that  defendant  orders  Urn 
to  dig  more  around  the  stone  (which  he  did), 
and  then  ordered  him  to  load  tiie  bole,  and 
banded  him  or  laid  upon  the  rock  a  fuse 
cut  by  defen'dant  with  a  cap  attached  and  or 
dered  him  to  finish  loading;  that,  when  tba 
fuse  had  been  Inserted  and  the  loading  finish- 
ed, the  fuse  only  projected  above  the  hole 
about  two  Inches;  that  plaintiff  was  not 
sure  whether  or  not  the  fuse  was  too  short 
for  safety,  was  afraid  It  might  be  and  called 
defendant's  attention  to  It,  and  asked  If  he 
should  light  it,  said  he  was  afraid,  and  ask- 
ed what  he  should  do  with  It;  and  that  de- 
fendant handed  him  a  match  to  light  it  with, 
told  him  to  go  on  an'd  light  It,  and  said  that 
It  was  all  right ;  that  defendant  stood  where 
he  could  see  the  fuse,  had  cut  it  himself 
and  knew  its  length ;  that  plaintiff  regarded 
defendant  as  his  boss,  knew  he  was  paying 
plaintiff  to  work  for  him  and  expected  plain- 
tiff to  obey  orders,  and  knew  that  defendant 
bad  more  knowledge  of  dynamite  and  ex- 
plosives than  plaintiff  had;  that  he  obeyed 
the  order,  and  was  immediately  injured  by 
the  blast  before  he  had  time  even  to  turn 
around. 

From  plaintiff's  testimony  the  Jury  had  a 
right  to  find  that  never  at  any  time  had  the 
plaintiff  been  called  upon  to  use  his  own 
Judgment  as  to  the  proper  length  In  the  cut- 
ting of  fuses ;  that  never  at  any  time  had  be 
had  experience  as  to  how  long  it  would  take 
a  given  length  of  fuse  to  bum;  it  does  not 
appear  that  he  had  ever  seen  or  known  of  a 
premature  explosion  or  that  he  had  any 
knowledge  as  to  bow  short  a  fuse  could  be 
used  safely. 

The  questions  whether  the  plaintiff  as- 
sumed the  risk  and  whether  he  was  guUty 
of  contributory  negligence  are  questions  of 
fact.  Many  cases  have  arisen  where  the  tes- 
timony is  so  clear  and  conclusive  upon  the 
plaintllTs  own  admission  of  his  knowledge 
an'd  skill  and  appreciation  of  danger  that 
courts  have  found  such  facts  to  be  fully  and 
conclusively  proved  so  that  it  would  be  er- 
ror to  submit  them  to  the  Jury. 

But  in  this  case  we  have  the  fact  that  the 
plaintiff,  not  being  sure  of  the  danger,  though 
apprehensive,  and  being  under  the  direct 
supervision  of  his  master,  calling  his  mas- 
ter's attention  to  the  possible  danger,  and 
receiving  his  master's  assurance  that  it  is 
all  right,  obeys  his  master's  direct  order  and 
Is  injured  as  a  result  of  such  obedience. 

The  cases  cited  on  behalf  of  the  defendant 
in  support  of  his  exception  are  all  cases 
where  the  evidence  clearly  showed  that  the 
plaintiff  was  a  man  of  such  long  experience 
and  full  knowle!dge  of  the  danger  of  his 
acts  which  resulted  In  his  injury  that  he 
either  assumed  the  risk  or  was  guilty  of 
contributory  negligence.  We  do  not  find 
in  any  of  these  cases  circumstances  similar 
to  the  case  at  bar,  where  the  servant,  being 
apprehensive  of  possible  danger,  appealed  to 


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his  master,  and  received  his  assurance  of 
safety,  coupled  wltb  an  order  to  go  ahead 
and  do  the  thing  which  resulted  in  the  in- 
Jniy. 

In  the  cases  dted  on  behalf  of  the  plain- 
tiff we  find  ample  authority,  under  circum- 
stances similar  in  principle  to  thoee  appear- 
ing in  the  case  at  bar,  for  the  submission  of 
the  tiuestions  of  assumed  risk  and  of  contrib- 
utory negligence  to  the  Jury  as  questions  of 
fact  for  Its  determination. 

In  Pinncy  v.  King  (1906)  98  Minn.  160, 
107  N.  W.  1127,  It  appeared  that  dynamite 
was  used  for  the  purpose  of  blowing  up  a 
wreck  under  water ;  that  it  was  necessary  to 
heat  the  dynamite  to  a  certain  temperature ; 
that  the  plaintiff  was  a  laborer  working  un- 
der a  foreman  (who  was  held  to  be  a  Tice 
principal  of  the  master),  and  uinder  Ills  or- 
ders  was  engaged  with  others  in  the  work  of 
heating  up  an  old  bcrfler,  and,  after  heating, 
of  placing  sticks  of  dynamite  on  boards  upon 
the  heated  grate  bars;  that,  owing  to  the 
Inattention  of  the  vice  principal  and  others, 
the  boiler  became  overheated  and  caused  the 
dynamite  to  explode,  killing  several  men  and 
Injuring  the  plaintiff;  the  same  questions 
substantially  were  raised  by  the  defense  in 
that  case  as  in  the  case  at  bar.  After  speak- 
ing of  the  plaintiff's  lack  of  experience  in  this 
manner  of  treating  dynamite,  and  of  ills  re- 
liance upon  the  foreman  for  guidance  and 
direction,  the  court  said  (98  Minn.  163,  107 
N.  W.  1128): 

"It  appears  that  he  was  nervous  and  some- 
what agitated  during  the  time  the  dynamite 
wu  being  warmed,  because,  in  bis  opinion,  the 
boiler  was  overheated,  and  that  he  called  the 
attention  of  the  foreman  to  the  fact.  The  fore- 
man assured  him  that  it  was  all  right,  and  or- 
dered him  to  let  it  alone.  Because  he  was 
fearful  of  dancer,  it  does  not  follow,  as  a  mat- 
ter of  law,  that  he  fully  appreciated  the  risks 
and  hazards  of  his  situation.  The  question  was 
properly  left  to  the  jury." 

See,  also,  Randall  v.  Abbott  Oa,  111  Me. 
1, 12,  87  AU.  376  (1913) ;  Jensen  v.  Kyer,  101 
Ue.  106,  U3,  63  Atl.  3S9  (1905);  Chicago 
Anderson  Pressed  Brick  Go.  v.  Sobkowiak, 
148  IlL  673,  36  N.  K  672;  Lake  Superior 
Iron  Co.  V.  Erickson,  39  Mich.  492,  600,  33 
Am.  Rep.  423;  Southern  Cotton  OU  Co.  v. 
Spotts,  77  Ark.  458.  92  S.  W.  249;  Haley 
».  Case,  142  Mass.  316,  320,  7  N.  E.  877;  Ma- 
iioney  v.  Dore,  156  Mass.  613,  520,  30  N.  E. 
366;  Burgess  v.  Davis  Sulphur  Ore  Ca,  165 
Mass.  71,  74,  42  N.  £.  501 ;  Shannon  v.  Shaw, 
201  Mass.  393,  397,  87  N.  E.  748;  4  Labatt's 
Master  and  Servant  (2d  Ed.)  p.  3927  et  seq. 

In  our  opinion,  the  questions  raised  by 
defendant  In  the  case  at  bar  were  pn^erly 
snbmitted  to  tha  Jury,  and  we  find  no  error 
on  the  part  of  the  trial  Judge  in  refusing  to 
direct  a  verdict  for  the  defendant 

The  defendant's  exception  is  overruled,  and 
the  case  is  remitted  to  the  superior  court 
sitting  in  the  comity  of  Providence,  with  dl- , 


rection  to  enter  Judgmoit  for  the  plaintlfl  up- 
on the  verdict 

YINOEINT.  J.,  dissents. 

'°°"°°°~  (40  R.  I.  383) 

NEWPORT  TRUST  CO.  v.  CHAPPELL  et  aL 
(No.  381.) 

(Supreme  Court  «f  Rhode  Island.     June  26^ 
1917.) 

1.  WnXB  «=>539  —  CONSTBUOTIOW  —  Bbqttxst 
TO  Dauqhteb. 

Testatrix's  will  provided  that  she  gave  one 
moiety  of  all  her  property  to  her  daughter,  and 
that  she  gave  the  other  moiety  of  her  property  to 
her  husband  in  trust  for  the  benefit  of  her  son, 
and  directed  that  so  long  as  the  husband  should 
live  there  should  be  no  division  of  the  estate, 
and  the  income  should  be  divided  equally  be- 
tween the  husband,  the  daughter,  and  the  hus- 
band as  trustee.  A  following  clause  of  the  will 
directed  that,  if  the  daughter  should  die  without 
issue,  her  portion  of  the  estate  should  go  to  the 
husband  as  trustee  for  the  son.  Held,  that  it 
was  testatrix's  intention  to  give  her  daugbter,  if 
living  at  her  death,  a  vested  interest  in  half 
of  the  estate,  but  to  postpone  the  time  when  the 
daughter  should  come  into  possession  until  the 
death  of  her  father,  and  where  the  daughter  sur- 
vived the  father,  she  became  entitled  at  his  death 
M  have  the  half  turned  over  to  her,  less  charges 
and  expenses  of  administration  chargeable 
against  the  half. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  a  1163,  1302-1309.] 

2.  Wills  «=>674,  684(9)— Tsttsts— Bequest  to 
Teijstee — Spendthbift  Tbubt. 

Testatrix's  will  provided  that  she  gave  a 
moiety  of  all  her  property  to  her  husband  for 
the  benefit  of  her  son^  directing  that  so  long  as 
the  husband  should  kve,  there  should  be  no  di- 
vision of  the  estate,  but  that  the  income  should 
be  divided  equally  between  the  husband,  the 
daughter,  and  the  husband  as  trustee  for  the 
son,  also  directing  that  if  the  husband,  as  trus- 
tee, should  become  fully  satisfied  at  any  time 
that  the  son  had  fully  reformed  his  life,  so  that 
he  could  safely  be  trusted  with  the  manage- 
ment of  property,  the  husband,  as  trustee,  should 
transfer  the  property  to  the  son  as  fully  as  if 
the  trust  had  never  been  created,  and  that  the 
trust  should  thereby  terminate.  Held,  that  the 
son's  trustee,  the  husband,  was  only  to  receive 
one-third  of  the  income  for  the  son's  benefit  so 
long  as  he,  the  husband,  lived,  and  that  the  trust 
for  the  son  was  in  the  nature  of  a  spendthrift 
trust 

raid.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  U  1585,  1627.] 

3.  Wills  «=>686(1>— Tebmination  of  Tbitst. 

Where  testatrixs  will  created  a  spendthrift 
trust  for  her  son,  appointing  her  husband  tms> 
tee,  with  provision  that  the  husband  might  ter- 
minate the  trust  if  the  son  reformed  his  mode  of 
living,  but  the  son  did  not  fully  reform  his  life, 
and  the  trust  was  never  terminated  during  the 
husband's  lifetime,  and  the  son  never  claimed  or 
attempted  to  have  the  trust  terminated  during 
his  father's  lifetime  or  afterwards,  the  trust  con- 
tinued until  the  son's  death;  the  mere  fact  that 
no  new  trustee  was  appointed  after  his  father's 
death  not  operating  to  terminate  the  trust 

(Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  1}  1631,  1633,  1637.] 

4.  Wills  e=»684(9)—CoNSTBucTiON— Bequest 
OF  Income. 

Testatrix's  will  gave  a  moiety  of  all  her 
property  to  her  daughter,  and  gave  the  other 


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moiei7  to  lier  hosband,  in  trast  for  the  benefit  of 
her  son,  directing  that  so  long  as  the  husband 
should  live  there  should  be  no  division  of  the  es- 
tate, and  the  income  should  be  divided  equally 
between  the  husband,  for  himself,  as  trustee  for 
the  son,  and  the  daughter.  Held,  that  after  the 
father's  death  the  son  was  entitled  to  receive  the 
income  from  half  the  estate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  1627.] 

5.  Wills  «=»e86(4)— TEBiairATioK  of  Spbitd- 
THBiFT  Trust. 

Where  by  bis  mother's  will  a  son  was  en- 
titled to  receive  one-third  the  Income  of  the  es- 
tate prior  to  his  father's  death,  and  after  his 
father's  death  was  entitled  to  receive  the  income 
from  half  the  estate,  the  will  having  created  a 
spendthrift  trust  in  half  the  estate  for  the  bene- 
fit of  the  son,  and  named  the  father  as  trustee, 
the  making  by  the  son  in  favor  of  his  wife  of  a 
trnst  deed  to  a  trust  company  after  the  death  of 
his  father,  and  after  the  trust  company  was 
appointed  administrator  with  the  will  annexed 
of  the  mother,  and  had  received  the  estate  into 
Its  custody  as  such,  did  not  operate  to  termi- 
nate the  trust,  which  could  only  have  been  ter- 
minated under  the  will  by  the  act  of  a  trustee, 
if  the  latter  became  faUy  satisfied  that  the  son 
had  reformed  his  life,  but  merely  transferred  the 
Bon's  right  to  the  income  of  half  the  estate  to 
the  trustee  for  the  benefit  of  his  wife. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  I  1636.] 

6.  Tbtistb  «=924S  —  STTSsmrrrKD  Tsustex  — 
POWEBS— Statdtb. 

Under  Gen.  Laws  1896,  c.  208,  {  6,  provid- 
ing that  every  trustee  appointed  pursuant  to  the 
chapter  shall  have  the  same  powers,  authorities, 
and  discretions,  and  may  in  all  respects  act  as  if 
be  had  been  originally  appointed  trustee  by  the 
instrument,  if  any,  creating  the  trust,  and  sec- 
tion 8,  providing  that  the  preceding  sections 
shall  apply  to  trusts  heretofore  as  well  as  those 
hereafter  created,  and  shall  be  considered  in  ad- 
dition to  the  ordinary  equity  powers  of  a  court 
of  chancery,  a  new  trustee,  appointed  under  a 
will  in  place  of  the  trustee  named  therein,  who 
died,  would  have  had  the  same  powers  and  dis- 
cretions aa  the  original  trustee. 

tEU.  Note/— For  other  cases,  see  Trusts,  Cent. 
Dig,  i  350.] 

7.  Trusts  <S=>243  —  Substituted  Tbustes  — 

PoWEBS. 

Where  testatrix's  will  created  a  spendthrift 
trust  in  favor  of  her  son,  and  gave  her  husband, 
the  trustee,  power  to  terminate  the  trust  if  he 
became  satisfied  that  the  son  had  reformed  his 
life,  so  that  he  could  be  trusted  with  the  man- 
agement of  property,  the  power  and  discretion 
vested  in  the  husband  to  transfer  to  the  son 
free  of  trust  was  a  power  and  discretion  annex- 
ed to  the  office  of  trustee,  and  therefore  passed 
to  a  succeeding  trustee,  even  in  the  absence  of 
statute,  since,  without  such  power,  the  purposes 
of  the  trust  might  have  been  defeated. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  i  350.] 

Case  certified  from  Superior  Court,  New- 
port  County. 

Suit  by  the  Newimrt  Trust  Company,  ad- 
ministrator cum  testamento  annexo  of  the 
estate  of  Abby  D.  Chappell,  against  Levlnla 
A.  Chappell  and  others.  On  certiflcation  to 
the  Supreme  Court  for  Its  determination 
under  Geo.  Laws  1909,  c.  289,  i  35,  as  being 
ready  for  hearing  for  final  decree.  Decree 
directed  to  be  presented  for  approval. 


Burdlck  &  MacLeod,  of  Newport,  for  com- 
plainant. Sheffield  &  Harvey,  of  Newport, 
for  Levlnla  A.  Chaijpell.  Charles  H.  Koehne, 
Jr.,  and  William  Williams,  both  of  Newport, 
for  Ida  Douglas  Jack. 

PARKHURST,  a  J.  This  Is  a  bill  In 
equity  brought  by  the  Newport  Trust  Com- 
pany, as  administrator  with  the  will  annexed 
of  the  estate  of  Abby  D.  Cbaiq)ell,  late  of 
Newport,  deceased,  having  In  Its  possession 
as  such  administrator  certain  personal  prop- 
erty which  was  bequeathed  under  said  will, 
and  asking  for  the  appointment  of  a  new 
trustee  under  said  will  and  for  Instructions 
as  to  the  proi)er  disposition  of  said  prop- 
erty. Such  disposition  Involves  the  construc- 
tion of  said  will. 

The  bill  was  filed  In  the  superior  court  In 
the  county  of  Newport  November  10,  1916, 
and,  after  answers  were  filed  and  testimony 
taken,  was  duly  certified  to  this  court  for 
Its  determination  under  the  provisions  of 
Gen.  Laws  R.  I.  1909,  c.  2S9,  i  35,  as  being 
ready  for  hearing  for  final  decree. 

It  appears  by  admission  in  the  pleadings 
that  Abby  D.  Chappell,  late  of  Newport, 
died  Ma^  10,  1904,  leaving  the  last  will  re- 
ferred to,  and  that  the  same  was  duly  ad- 
mitted to  probate  June  13,  1904,  and  that 
James  H.  Chappell,  husband  of  the  testa- 
trix, named  as  executor  In  the  will,  was  duly 
appointed  and  qualified,  and  thereafter  acted 
as  such  executor  until  his  death,  and  died  in- 
testate September  20,  1914,  without  having 
fully  administered  the  estate,  leaving  as  hla 
only  heirs  at  law  and  next  of  kin  said  Ida 
Douglas  Jack  and  said  Henri  Q.  Chappell, 
and  that  the  complainant  on  October  5,  1914, 
was  duly  appointed  and  qualified  as  admin- 
istrator with  the  will  annexed ;  that  aa  such 
administrator  It  received  the  sum  of  $6,495.91 
as  the  property  of  the  estate  of  said  Abby  J>. 
Chappell,  and  has  since  held,  and  now  holds, 
said  estate. 

It  further  appears  that  Henri  Q.  Chappell 
(son  of  the  testatrix),  one  of  the  beaefldarles 
named  in  said  will,  on  November  9,  1914, 
made  a  deed  of  trust  of  all  his  property, 
"whether  legal  or  equitable  In  fee  or  In  re- 
mainder," to  said  Newport  Trust  Company, 
In  trust  to  pay  the  net  Income  thereof  to  hla 
wife,  the  respondent  Levlnla  A.  CJhappell, 
during  his  lifetime,  and  upon  his  death  to 
pay  over  the  principal  of  said  trust  fund, 
or  what  should  remain  thereof,  to  said  Le- 
vlnla, or  to  such  person  or  persons  as  he 
should  by  his  last  will  appoint  In  the  event 
of  her  death  before  him. 

It  further  appears  that  said  Henri  Q.  Chap- 
pell died  at  Newport,  February  28,  1916,  leav- 
ing bis  wife,  Levlnla,  siurvlvlng  him,  but 
leaving  no  children  or  Issue  of  children  sur- 
viving him,  and  that  he  left  a  will  In  whicb 
he  gave  all  his  property  to  his  wife,  but  said 
win  has  never  been  offered  for  probate. 


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NEWPORT  TRUST  00.  v.  CHAPPELIi 


325 


The  said  Abby  D.  Gbappell  and  James  H. 
Ghappell  had  two  cbUdren,  a  daughter,  Ida 
Douglas  Chappell,  and  a  son,  Henri  Q.  Chap- 
pell.  The  daughter  married,  and  In  her 
mother's  will  she  is  named  as  Ida  Jack,  of 
TTashington,  In  the  District  of  Columbia.  It 
appears  also  that  she  surriyed  her  mother 
and  her  father  and  her  brother  and  was 
still  surviving  at  the  time  when  this  bill  was 
fled,  and,  so  far  as  appears,  she  stlU  sur- 
Tlves.  The  said  Ida  Douglas  Jack  and  the 
said  Levlnia  A.  Chappell  are  the  sole  parties 
named  as  respondents' in  the  bill. 

The  win  provides  as  follows : 

"This  is  the  last  will  and  testament  of  me, 
Abby  D.  Chappell,  wife  of  James  H.  Chappell, 
of  Newport,  Rhode  Island. 

"Rrst  Subject  to  the  payment  of  my  just 
debts,  if  any,  and  all  proper  charges  against  my 
estate,  I  give  devise  and  bequeath  the  one  moiety 
of  any  property,  of  every  kind,  real  and  person- 
al, wheresoever  situated  or  being,  belonging  to 
me  at  the  time  of  my  decease,  whether  acquired 
prior  or  subsequent  to  the  execution  of  this  will, 
to  my  daughter,  Ida  Jack  of  Washington  in  the 
District  of  Columbia,  and  in  case  of  the  death 
of  said  Ida  I  give  devise  and  bequeath  the  same 
to  her  children. 

"Second.  I  give  devise  and  bequeath  the  other 
moiety  of  my  property,  of  every  kind,  real  and 
personal,  wheresoever  situated  or  being,  belong- 
ing  to  me  at  the  time  of  my  decease,  whether  ac- 
quired prior  or  subsequent  to  the  execution  of 
this  will  to  my  husband  James  H.  Chappell  in 
trust,  for  the  benefit  of  my  son  Henri  Q.  Chap- 
pell of  said  Newport. 

"Third.  It  is  my  will  that  so  long  as  my  hus- 
band shall  live  that  there  shall  be  no  division  of 
my  estate  and  the  rents,  income  and  profits 
thereof,  shall  be  divided  equally  between  my 
husband,  my  daughter,  and  said  trustee.  I  also 
direct,  that  if  the  said  trustee  shall  become  fully 
satisfied  at  any  time,  that  my  son  Henri  has 
fully  reformed  his  life,  so  that  he  can  safely  be 
trusted  with  the  management  of  property  and 
this  trust,  that  he  transfer  said  property  to  my 
8on  as  fully  as  if  it  had  never  been  created,  and 
that  the  same  thereby  terminate, 

"Fourth.  It  is  my  will,  that  if  said  trust  shall 
continue  until  the  death  of  said  son,  if  he  leave 
issue,  the  residue  of  said  trust  shall  be  trans- 
ferred to  said  issue;  if  he  leave  no  issue,  the 
residue  shall  become  the  property  of  my  daugh- 
ter Ida. 

"Fifth.  It  Is  my  will  and  I  so  direct  that,  if 
my  daughter  Ida  shall  decease  leaving  no  issue, 
her  portion  of  my  estate  shall  go  to  said  trustee, 
in  trust,  as  aforesaid.  But  if  said  trust  has  been 
surrendered  by  the  trustee  as  provided  in  this 
will,  then  the  portion  of  said  Ida  shall  go  to  said 
Henri  direct.  If  both  of  my  children  die  with- 
out issue,  I  give  devise  and  bequeath  all  of  said 
property  not  expended  to  the  next  of  kin  of  said 
Ida  according  to  the  present  statutes  of  this 
state,  exduding  her  husband  from  any  part 
share  and  right  therein. 

"Sixth.  BTnally  I  nominate  and  appoint  my 
husband  James  B.  Chappell  to  be  the  sole  execu- 
tor hereof  without  giving  any  bond^  and  to  car- 
ry out  the  provisions  hereof  as  strictly  as  may 
he;  and  I  revoke  all  other  former  wills  by  me 
made,  and  publish,  and  establish  this,  and  this 
only,  as  my  last. 

"Witness  band  and  seal  this  25th  day  of  June, 
A  D.  1887.  Abby  D.  Chappell.    [L.  S.]" 

The  will  bears  the  usual  witness  clause  and 
names  of  witnesses.  It  Is  undisputed  that  all 
the  property  which  passed  under  the  will  was 
personal  property ;  and  all  the  property  now 
held  by  complainant  is  personal  property. 


The  complainant  In  Its  bill  contends  that 
the  estate  of  Abby  D.  Chappell  In  its  hands 
after  deducting  the  expenses  of  administra- 
tion should  be  turned  over  to  a  trustee  to  be 
appointed  by  the  court  to  bold  In  trust  to  pay 
the  income  to  Ida  Douglas  Jack  during  her 
lifetime,  and  upon  her  death  to  pay  the  prin- 
cipal to  her  Issue  living  at  her  death,  and  in 
default  thereof  to  her  next  of  kUi,  as  provided 
In  the  fifth  clause  of  the  wUL 

The  respondent  Ida  Douglas  Jack  by  her 
answer  claims  the  whole  of  the  fund  in  the 
hands  of  the  complainant,  after  deducting 
the  necessary  expenses  of  administering  said 
estate. 

The  respondent  Levlnia  A.  Chappell  is  un- 
der guardianship,  and  William  M.  Arnold, 
the  guardian  of  her  person  and  estate,  has 
been  brought  In  as  a  party  respondent.  He 
makes  answer  as  guardian  claiming  on  her 
behalf  that  she  Is  entitled  to  have  paid  over 
to  her  after  deducting  the  expense  of  ad- 
ministration one  moiety  of  the  estate  under 
the  provisions  of  the  wllL 

At  the  first  reading  of  the  wlU  above  set 
forth  It  seems  to  be  somewhat  confusing  and 
inconsistent  In  its  several  provisions.  But 
upon  a  careful  consideration  thereof  we  are 
of  the  opinion  that  the  Intention  of  the  testa- 
trix quite  clearly  appears. 

The  scheme  of  the  will  Is  to  divide  the  es- 
tate into  two  parts,  one  of  which  is  by  the 
first  clause,  as  we  construe  it,  bequeathed  to 
Ida  Jack,  if  living  at  the  death  of  testatrix ; 
If  Ida  is  not  then  living,  to  Ida's  children. 
The  other  part  is  by  the  second  clause  be- 
queathed to  James  H.  Chappell,  husband  of 
testatrix.  In  trust  for  the  benefit  of  her  son, 
Henri  Q.  Chappell.  This  s<4ieme  is,  however, 
modified  and  suspended  In  Its  fulfillment  by 
the  third  clause,  which  evinces  a  primary 
and  paramount  intention  temporarily  to  sus- 
pend the  division  of  the  estate  during  the 
lifetime  of  her  husband,  and  to  leave  the 
estate  undivided  In  his  hands  during  his  life- 
time, and  to  divide  the  rents,  income,  and 
profits  equally  between  her  husband,  her 
daughter,  and  her  husband  as  trustee  for 
Henri ;  and  this  provision  Is  also  subject  to 
the  direction  to  said  trustee  to  transfer  the 
one-half  of  the  estate  bequeathed  in  trust  for 
the  benefit  of  Henri  to  him  If  "the  said  trus- 
tee shall  become  fully  satisfied  at  any  time, 
that  my  son  Henri  has  fully  reformed  his 
life,"  etc. 

[1]  As  we  construe  these  provisions,  we 
find  that  it  was  the  intention  of  the  testatrix 
to  give  to  her  daughter,  Ida  Douglas  Jack, 
if  living  at  the  death  of  testatrix,  a  vested 
Interest  In  one-half  of  the  estate,  subject  to 
the  provisions  of  the  second  clause,  which 
postponed  the  time  when  Ida  should  oome  In- 
to possession  imtil  the  death  of  her  father; 
and.  Inasmuch  as  Ida  survived  her  father, 
she  became  entitled  at  his  death  to  have  this 
one-half  turned  over  to  her,  less  su<di  charges 
and  expenses  of  administration,  tf  any,  aa 
would  be  properly   chargeable  against  the 


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same.  We  think  It  dear  that  there  was  no 
Intention  on  the  part  of  testatrix  to  postpone 
Ida's  enjoyment  of  this  one-half  of  the  estate 
beyond  the  death  of  her  father,  and  tliat 
Ida's  cUldren  took  no  interest  in  this  portion 
<rf  the  estate  in  case  Ida  survived  her  mother. 

The  provisions  in  clause  1  and  clause  5 
are  somewhat  analogous  to  the  provisions 
construed  in  the  case  of  Harris  v.  Dyer,  18 
R.  I.  540,  642,  28  AtL  971,  972,  where  it  was 
said: 

"There  have  been  a  number  of  cases  of  devises 
where  a  gift  to  one  in  fee  has  been  followed  by 
a  gift  over  in  case  the  devisee  die  with  or  with- 
out issue,  in  which  the  event  of  death  has  been 
referred  to  the  lifetime  of  the  testator  [citing 
numerous  cases].  This  construction  has  been 
adopted  to  avoid  repugnancy,  inasmuch  as  the 
alternative  limitations  over,  if  not  so  (qualified  or 
restricted,  would  reduce  the  prior  devise  from  a 
fee  to  a  life  estate.  It  is  based  on  the  obvious 
reason  that,  if  the  testator  had  intended  to  give 
only  a  lifi  estate  in  the  first  instance,  he  would 
have  said  so  in  the  terms  of  the  gift  itself." 

W't  are  of  the  opinion  that  the  bequest  in 
tlie  first  clause,  gave  an  absolute  estate  to 
Ida  In  the  one  moiety  of  the  estate  therein 
bequeathed  in  the  event  that  she  survived 
her  mother,  with  the  right  to  the  possession 
thereof  postponed  under  clause  .3d  to  the 
time  of  her  father's  death;  and  that  in  the 
provisions  of  the  fifth  clause  directing  that 
"if  my  daughter  Ida  shall  decease  leaving  no 
issue,  her  portion  of  my  estate  shall  go  to 
said  trustee,"  etc.,  the  event  of  Ida's  death 
therein  contemplated,  is  to  be  referred  to  the 
lifetime  of  the  testatrix. 

[2]  As  to  the  one  moiety  of  the  estate  t>e- 
queathed  by  clause  2  to  James  H.  Chappeli 
in  trust  for  the  benefit  of  Henri  Q.  Chappeli, 
it  is  clear  that  this  trust  is  so  far  modified 
by  the  language  of  the  third  clause  that  the 
trustee  for  Henri  was  only  to  receive  one- 
third  of  the  income  for  the  benefit  of  Henri, 
so  long  as  the  husband  of  testatrix  lived. 
It  is  further  clear  that  the  trust  constituted 
in  the  second  clause  and  modified  in  the 
third  clause  was  in  the  nature  of  a  spend- 
thrift trust,  as  indicated  by  the  words  direct- 
ing the  transfer  to  Henri  "if  the  said  trustee 
shall  become  fully  satisfied  at  any  time,  that 
my  son  Henri  has  fully  reformed  his  life," 
etc. 

[3]  There  is  nothing  in  the  record  to  show 
that  Henri  ever  did  fully  reform  his  life  so 
as  to  give  effect  to  the  provision  for  the 
transfer  of  one-half  of  the  estate  to  him; 
and  in  view  of  the  fact  that  the  trust  was 
never  terminated  during  the  lifetime  of  the 
father,  trustee,  and  that  it  does  not  appear 
that  Henri  ever  claimed  or  attempted  to 
have  the  trust  terminated  either  during  his 
father's  lifetime  or  afterward,  we  are  of  the 
opinion  that  the  trust  continued  until  the 
death  of  Henri,  and  that  never  at  any  time 
was  he  entitled  to  have  the  trust  terminated 
by  the  transfer  of  one-half  of  the  estate  to 
him.  The  mere  fact  that  no  new  trustee  was 
appointed  after  his  father's  death  did  not 
operate  to  terminate  .the  trust     Being   a 


trust  for  the  protection  o£  Henri  against  his 
own  improvidence  and  incapacity,  we  may  as- 
sume that  there  was  a  reason  for  its  continu- 
ance, until  his  death. 
[4,  6]  After  his  father's  death  he  was  entitl- 
ed to  receive  the  income  from  one-Iialf  of  the 
estate;  and  it  does  not  appear  tliat  he  did 
not  so  receive  it.  The  making  of  his  trust 
deed  to  the  complainant  November  9,  1914, 
after  the  death  of  liis  father,  and  after  the 
complainant  was  appealed  administrator 
with  will  annexed  of  the  estate  of  Abby  D. 
Chappeli,  and  tiad  received  the  estate  into 
its  custody  as  such  administrator,  simply  op- 
erated, so  far  as  this  property  was  concerned, 
to  transfer  Henri's  right  to  the  income  of  ooe- 
half  of  the  estate  to  the  trustee  for  the  bene- 
fit of  the  wife,  IJevinia.  It  may  be  that  oth- 
er property  was  conveyed  by  this  trust  deed. 
As  to  that  the  record  is  silent  But  the  making 
of  this  trust  deed  did  not  operate  to  terminate 
the  trust,  wlilch  could  only  have  been  term- 
inated under  the  terms  of  the  will  by  the 
act  of  a  trustee  in  the  event  that  such  trustee 
should  have  become  "fully  satisfied  at  any 
time,  that  my  son  Henri  has  fully  reformed 
his  life,  so  that  he  can  safely  t>e  trusted  wltli 
the  management  of  property,"  etc.  It  was 
the  plain  Intent  of  the  testatrix  that  only  in 
such  event  should  oue-half  of  her  property 
be  transferred  to  Henri  free  of  trust  A 
trustee  to  administer  this  trust  under  the  will 
could  have  been  appointed  if  the  parties  In 
interest  had  so  desired.  In  view  of  the  fact 
that  the  estate  consisted  only  of  personalty 
in  the  bands  of  the  complainant  as  adminis- 
trator, It  was  probably  deemed  unnecessary. 
No  claim  is  made  that  the  income  of  the  one- 
half  of  the  estate  was  not  after  November  9, 
1914,  paid  over  by  the  complainant  to  Lie- 
vinia  so  long  as  Henri  lived. 

As  to  the  continuance  of  the  trust  and  the 
appointment  of  a  new  trustee  after  the  death 
of  James  H.  Chappeli,  the  case  is  analogous 
in  principle  to  the  case  of  Burdick  t.  Ood- 
dard,  11  R.  I.  516,  where  a  trust  of  personal 
estate  was  created  under  the  Halsey  will  for 
the  benefit  of  a  married  woman,  to  pay  over 
to  her — 

"for  her  sole  and  separate  use  and  benefit,  and 
upon  her  sole  and  separate  receipt  and  dis- 
charge, such  part  of  said  fund,  whether  of  in- 
terest or  principal,  or  both,  at  such  times  and 
in  such  sums  as  they  in  their  discretion  shall 
consider  expedient  necessary,  and  proper." 

It  appeared  that  in  the  lapse  of  time  all 
of  tlie  original  trustees  liad  died,  the  fund 
was  on  deposit,  and  was  in  the  control  of  the 
executors  of  the  last  surviving  trustee ;  that 
the  cestui  que  trust  had  become  a  widovr 
and  had  married  again  and  was  covert 
at  the  time  of  filing  the  bill,  which  asked  for 
a  termination  of  the  trust  by  payment  of  the 
whole  fund  to  the  complainant,  Mrs.  Burdlck, 
with  an  alternative  prayer  for  the  appoinb- 
meut  of  a  new  trustee,  and  defining  his  pow- 
ers. It  was  held  that  the  powers  and  dis- 
cretions given  to  the  trustees  to  pay  over 


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the  fond  as  above  set  forth  were  essential 
to  the  purposes  of  the  trust,  and  passed  to 
the  snccessors  In  trust  of  the  original  trus- 
tees, that  the  trust  extended  over  the  new 
coTerture,  and  that,  the  original  trustees 
being  dead,  the  court  would  appoint  a  new 
tngtee  with  the  powers  given  by  the  will, 
bat  would  not  order  the  trust  fund  paid  over 
to  the  beneficiary  to  end  the  trust  See,  also, 
Blakely,  Petitioner,  19  R.  I.  324,  33  AQ.  618; 
Smith  V.  Hall,  20  H,  I.  170,  173,  37  Atl.  098. 

It  may  be  noted  that  after  the  decision  of 
Bardick  v.  Goddard,  supra  (1877),  a  statute 
(Gen.  Laws  1896,  c.  208,  Si  5,  8,  In  opera- 
tion on  and  after  February  1,  1896)  was  en- 
acted whereby  It  was  provided  (section  5) 
that  every  trustee  appointed  pursuant  to 
tbe  provision  of  that  chapter  shall  have  the 
same  powers,  authorities,  and  discretions, 
and  may  in  all  respects  act  as  if  be  bad  been 
originally  appointed  a  trustee  by  tbe  Instru- 
ment, if  any,  creating  the  trust;  and  sec- 
tion 8  provides  that  the  preceding  seven  seo- 
tions  shall  apply  to  trusts  heretofore  as  well 
as  those  hereafter  created,  and  shall  be  con- 
sidered in  addition  to  tbe  ordinary  equity 
powers  of  a  court  of  <*ancery.  Smith  v. 
Hall,  supra,  20  R.  I.  173,  37  Atl.  698.  See, 
also,  Godfrey  v.  Hutchins,  28  R.  I.  S21.  68 
Atl.  817;  Hayes  v.  Robeson,  29  R.  I.  220, 
69  Atl.  686.  The  same  statute  was  re-en- 
acted In  Gen.  Laws  1909,  c.  259,  {{  6,  8,  in 
operation  December  31, 1909. 

[I]  This  statute  was  In  force  at  the  death 
of  James  H.  Chappell  in  1914,  and  now  re- 
mains in  force,  and  under  It  it  Is  dear  that 
a  new  trustee,  had  one  been  appointed  un- 
der the  will  in  place  of  James,  deceased, 
would  have  had  the  same  powers  and  dis- 
cretions as  be  had. 

[7]  We  are  of  the  opinion  that  it  was  clear- 
ly the  intention  of  the  testatrix  to  protect 
her  son,  Henri,  from  his  own  lack  of  ca- 
padty  in  the  management  of  property,  and  to 
provide  for  the  continuance  of  the  trust  dur- 
ing his  life  except  In  tbe  event  that  he 
should  have  "fully  reformed";  that  the  pow- 
er and  discretion  vested  in  tbe  trustee  under 
her  wtll  to  transfer  to  Henri  free  of  trust 
was  a  power  and  discretion  annexed  to  the 
office  of  trustee,  and  would  have  passed  to 
a  succeeding  trustee.  In  the  absence  of  the 
statute  above  referred  to.  Inasmuch  as  with- 
out such  power  the  puri)oses  of  the  trust 
might  have  been  defeated.  The  question 
whether  Henri  Q.  Chappell  bad  "fully  re- 
formed in  his  life"  could  have  been  as  well 
determined  by  a  successor  In  the  trust  as  by 
the  original  trustee. 

We  therefore  find  that  the  trust  ciHitlnued 
until  the  death  of  Henri  Q.  Chappell  (fourth 
clause);  that  at  his  death  be  left  no  issue; 
and  that  accordingly  at  his  death  the  one- 
half  of  the  estate  held  In  trust  for  Henri  be- 
came the  property  of  Ida  Douglas  Jack. 

In  view  of  the  foregoing,  under  the  facta, 
tbe  fifth  clause  has  no  effect ;    none  of  the 


conditions  therein  enumerated  having  hap- 
pened. 

Our  opinion  is  that  I«vlnla  A.  Cham)ell 
has  no  estate  or  Interest  in  tbe  fund  In  the 
hands  of  the  complainant;  that  Ida  Douglas 
Jack  is  entitled  to  receive  the  whole  fund, 
after  deduction  of  the  necessary  expenses  of 
administering  the  estate;  that  Ida  Douglas 
Jack  is  entitled  to  an  accounting  from  tbe 
complainant  unless  tbe  complainant  and  she 
can  agree  upon  a  settlement ;  that,  inasmuch 
as  the  trust  terminated  at  the  death  of  Henri 
Q.  Chappell,  there  Is  no  need  of  the  formal 
appointment  of  a  trustee  under  tbe  will, 
since  all  of  the  fund  Is  in  the  hands  of  the 
complainant,  and  the  complainant  can  settle 
an  account  with  Ida  Douglas  Jack  without 
the  intervention  of  any  new  trustee. 

The  parties  may  present  for  our  approval 
a  decree  In  conformity  with  the  above  on 
Monday,  July  2,  1917,  at  10  o^clock  in  the 
forenoon. 

(40  a.  I.  485) 
MORAN  ▼.  TUCKER.     (No.  4996.) 

(Supreme    Court   of    Rhode    Island.      July    5, 
1917.) 

1.  Fraud  «=s31  —  REQnisrrKs  —  Ajtirkancb  . 
or  Contract. 

Ordinarily  a  deceit  action  for  damages  caus- 
ed by  fraudulent  misrepresentations  in  procur- 
ing a  contract  is  nredicated  on  the  contract's 
athrmance. 

[F.d.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  i  27.J 

2.  Fraud  #=s»34— Aftibkaitcx  of  Cohtract— 
Kecessitt. 

A  purchaser  after  making  a  part  payment 
may  sue  his  vendor  in  deceit  for  fraudulently 
securing  tbe  contract  without  completing  the 
payments  thereunder. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  {  29.1 

Exceptions  from  Superior  Oourt,  Provi- 
dence and  Bristol  Counties;  J(dm  W. 
Sweeney,  Judge. 

Action  by  Bdward  R.  Moran  against  Fran- 
cis E.  Tucker.  Verdict  for  plalntlfT,  and 
defendant  excepts.  Exceptions  overruled, 
and  case  remitted,  with  directions  to  enttt 
Judgment  upon  tbe  verdict 

O'Shatmessy,  Gainer  &  Carr,  of  Providence, 
for  plaintiff.  Green,  Hinckley  &  Allen,  of 
Providence  (Chauncey  B.  Wheeler  and  Harold 
P.  Salisbury,  both  of  Providence,  of  counsel), 
for  defendant 

SWEETLAND,  J.  This  is  an  action  of 
trespass  on  the  case  in  deceit  brought  to  re- 
cover damages  for  alleged  fraudulent  misrep- 
resentations made  by  the  defendant  to  the 
plaintiff  in  a  transaction  between  them  re- 
lating toi  the  sale  of  certain  land. 

The  case  was  tried  before  a  Justice  of  the 
superior  court  sitting  with  a  Jury,  and  re- 
sulted In  a  verdict  for  the  plaintiff.  Said 
Justice  denied  the  defendant's  motion  for  a 
new  trial.    The  case  Is  before  us  upon  the 


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defendant's  exception  to  tbe  decision  ot  tbe 
Justice  on  said  motion  and  upon  the  defend- 
ant's exceptions  to  certain  rulings  of  tbe  Jus- 
tice inade  in  the  course  ot  tb»  trial. 

From  the  evidence  the  Jury  were  warrant- 
ed In  finding  the  following:  Through  the 
efforts  of  the  defendant  eight  persons  pur- 
chased from  the  Canadian  Padflc  Railway 
Company  certain  land  in  the  proTince  of  Al- 
berta, in  the  Canadian  Northwest  The  de- 
fendant was  the  purchaser  of  one  section  ot 
said  land  known  as  section  No.  27.  Section 
No.  27  stood  on  the  records  in  the  name  of 
the  defendant's  wife.  These  lands  were  held 
In  severalty ;  but  the  owners  had  entered  in- 
to an  agreement  to  cultivate  said  land  Joint- 
ly. This  Joint  enterprise  they  termed  the 
syndicate.  The  defendant  was  made  the 
manager  and  treasurer  of  said  syndicate.  In 
the  spring  of  1913  he  went  upon  the  land  and 
made  some  arrangements  for  the  purchase  ot 
machinery  and  supplies  to  cultivate  said 
syndicate  land.  The  defendant  also  claimed 
that  he  had  procured  from  the  Canadian 
Pacific  Railway  Company  an  option  for  the 
purchase  of  an  additional  1%  sections  of  land 
adjoining  the  land  of  the  syudicata  In 
April,  1913,  the  defendant  came  to  Providence 
and  met  the  plaintiff.  The  defendant  then 
represented  to  tbe  plaintiff  that  the  affairs 
of  the  syndicate  were  in  a  sound,  prosperous, 
and  profitable  condition ;  that  he  intended  to 
plant  a  number  of  sections  of  the  syndicate 
land  largely  with  flax ;  that  everything  was 
in  readiness  for  the  Immediate  planting  of 
several  sections  of  said  land;  that  he  him- 
self intended  to  increase  his  holdings  in  the 
syndicate  until  he  owned  5  sections ;  that  for 
$1,000  in  cash  and  a  four  mouths'  note  for 
$400  he  would  purchase  for  the  plaintiff  one- 
half  section  of  the  section  and  one-half  of 
land  upon  which  he  held  said  option  and 
make  arrangements  that  the  plaintiff  might 
put  the  land  thus  purchased  into  the  syndicate 
and  share  In  the  profits  of  that  enterprise. 
These  representations  were  false.  The  af- 
fairs of  the  syndicate  were  not  prosperous; 
the  defendant  knew  that  he  was  not  able 
and  he  did  not  Intend  to  plant  a  number  ot 
sections  of  the  syndicate  land ;  he  bad  learn- 
ed that  It  was  too  late  in  the  season  to  plant 
flax  and  that  said  land  was  not  suited  to  tbe 
cultivation  of  flax;  he  did  not  Intend  to  in- 
crease his  holdings  in  said  syndicate,  but  was 
at  that  time  endeavoring  to  dispose  of  the 
section  which  be  did  own ;  he  did  not  intend 
to  use  said  $1,400  to  purchase  one-half  sec- 
tion of  land  for  the  plaintiff  from  the 
Canadian  Pacific  Railway  Company,  but  did 
Intend  to  turn  over  to  the  defendant  one-halt 
of  section  No.  27,  a  portion  of  tbe  land  which 
he  held  In  the  syndicate.  From  the  evidence 
the  Jury  were  warranted  In  finding  that  the 
defendant  obtained  the  $1,000  cash  and  the 
four  months'  note  for  $400  from  tbe  plaintiff 
through  false  representations. 

Upon  learning  that  the  defendant  had  de- 


ceived him  the  plaintiff  gave  the  defendant 
notice  that  be  rescinded  the  contract ;  and  he 
demanded  that  tbe  defendant  return  to  blm 
said  $1,000  In  cash  and  the  four  months' 
note  for  $400.  The  defendant  claims  that 
because  the  plaintiff  did  not  go  on  and  com- 
plete the  payment  of  $1,400,  but  did  disaffinu 
the  contract  and  d^uanded  a  return  of  the 
money  fraudulently  obtained  from  him,  tbe 
plaintiff  has  loet  his  right  to  sue  In  deceit 

The  Jury  found  specially  that  when  be 
made  tbe  contract  with  tbe  plaintiff  It  was 
tbe  intention  of  the  defendant  to  sell  to  the 
plaintiff  one-half  of  section  No.  27  which  be 
held  in  said  syndicate,  and  that  he  did  not 
Intend  to  purchase  for  the  plaintiff  a  one- 
half  section  of  tbe  1%  sections  of  land  on 
which  the  defendant  claimed  that  he  had  an 
option.  This  finding  was  fully  supported  by 
the  defendant's  letter  of  June  1,  1913,  to  the 
plaintiff,  and  by  otber  evidence  In  the  case. 
It  thus  appears  that  the  defendant  not  only 
by  fraudulent  misrepresentations  induced 
the  plaintiff  to  enter  Into  a  contract  with 
him  for  the  sale  of  land,  but  also  that  In 
further  fraud  ot  the  plaintiff  the  defendant 
did  not  Intend  to  procure  for  the  plaintiff  the 
land  which  the  defendant  had  promised  to 
purchase. 

[1,2]  Generally  an  action  in  dec^t  for 
damages  caused  by  fraudulent  misrepresenta- 
tion in  procuring  a  contract  In  based  upon 
tbe  theory  of  an  affirmance  of  the  contract. 
It  has  been  held  that  In  the  case  of  an  ex- 
ecuted contract  the  party  defrauded  has  the 
right  to  pursue  one  of  two  remedies,  either 
he  may  rescind  the  contract,  return  what  ha 
has  received  under  it,  and  sue  to  recover 
back  what  he  has  paid,  or  be  may  aflSrm  the 
contract  and  sue  for  his  damages  In  an  action 
for  deceit ;  but  he  cannot  pursue  both  r«ne- 
dies.  This  is  a  reasonable  rule,  for  the  con- 
tract has  been  executed,  and  the  victim  of  the 
fraud,  without  incurring  tbe  risk  of  further 
loss,  is  free  to  elect  the  remedy  which  ap- 
pears more  beneficial  to  him.  In  many  cases 
where  the  contract  is  only  partially  executed 
it  would  be  unjust  to  bold,  because  of  the 
theory  on  which  the  action  of  deceit  is  said 
to  be  based,  that  the  party  defrauded  shall 
lose  the  advantage  which  in  our  practice  at- 
taches to  a  tort  action,  unless  he  makes 
further  venture  in  tbe  transaction  into  which 
he  bas  been  Induced  by  fraud  to  enter.  Tbe 
force  of  this  is  apparent  In  a  case  like  that  at 
bar.  By  fraud  the  defendant  bas  obtained 
$1,000  of  the  money  of  the  plaintiff.  The 
plaintiff  knows  of  that  fraud,  and  he  edso 
knows  from  the  actions  and  the  statements 
of  the  defendant  that  the  defendant  does  not 
Intend  to  make  performance  of  the  contract 
on  his  part  In  those  circumstances  the 
plaintiff  should  not  be  required  to  pay  $40O 
more  to  the  defendant  before  the  plaintifF 
shall  be  permitted  to  sue  in  deceit  to  recover 
tbe  damages  which  he  has  already  suffered 
by  the  fraud.  In  Wtkxieo.  y.  Cole,  IS  Mich. 
265,  tbe  court  said: 


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Conn.) 


WHiriTET  OO.  y.  CHURCH 


829 


"This  te  not,  aa  dalmed  by  Warren,  a  aait  to 
enforce  a  contract  On  the  contrary  it  la  an  ac- 
tion of  tort,  to  recover  damages  for  a  deceit  and 
imposition  claimed  to  have  been  practiced  on 
Cole  and  Arnold,  whereby  they  were  fraada- 
lently  induced  to  make  an  agreement  they  would 
not  have  made  had  they  known  the  truth.  This 
beioK  the  character  of  the  suit,  it  cannot  be 
Berionsly  contended  that  a  person  repudiating 
a  contract  (or  fraud  cannot  sue  for  redress,  if 
he  has  suffered  damage  from  it." 

If,  after  being  Informed  of  the  fraud  which 
had  been  practiced  upon  liim,  the  plaintiff 
had  gone  on  and  completed  his  payments 
and  had  received  the  land  which  the  de- 
fendant fraudulently  intended  to  substitute 
for  that  which  he  had  undertaken  to  pur- 
chase, under  the  autborltj  of  some  of  the 
cases  the  plaintiff  should  be  held  to  have 
condoned  the  fraud  and  to  have  lost  his  right 
to  sue  in  deceit  A  carefully  considered  case 
In  support  of  that  position  is  Kingman  v. 
Stoddard.  85  Fed.  740,  29  C.  C.  A.  413.  In 
Slniou  V.  Goodyear  Metallic  Rubber  Co.,  105 
Fed.  573,  44  C.  C.  A.  612,  52  L.  B.  A.  745, 
Hr.  Justice  Lurton  said: 

"If  one,  after  fall  knowledge  of  the  fraud  and 
deceit  by  which  he  has  been  induced  to  make  a 
■ale  of  property,  goea  forward  and  executes  it 
notwithstanding  such  fraud,  the  damage  which 
he  thereby  sustains  is  voluntaril^r  incurred. 
The  maxim  'Volenti  non  fit  injuria,'  has  ap- 
plication to  all  loss  resulting  from  the  voluntary 
execution  of  a  nonobligatory  contract  with  full 
knowledge  of  the  faxrts  which  render  it  void- 
able." 

Selway  y.  Fogg,  6  Mees.  &  W.  83,  was  an 
action  In  assumpsit  to  recover  payment  for 
certain  work  the  value  of  which  amounted 
to  £20.  The  defendant  claimed  a  contract 
on  the  part  ot  the  plaintiff  to  do  the  woiiL 
for  £15.  The  plaintiff  Insisted  that  that  con- 
tract had  be«i  obtained  by  fraudulent  mis- 
representation on  the  part  of  the  defendant 
Baron  Parice  said: 

"I  also  think  that^  upon  discovering  the 
fragd,  (unless  he  meant  to  proceed  according  to 
the  terms  of  the  contract),  the  plaintiff  should 
immediately  have  declared  off,  and  sought  com- 
pensation for  the  bygone  time  in  an  action  for 
deceit;  not  doing  this,  but  continuing  the  work 
as  he  has  done,  he  is  bound  by  Uie  express 
terms  of  the  contract  and  if  he  ttJl  to  recover 
on  that,  be  cannot  recover  at  all." 

In  Vemol  v.  Vemol,  63  N.  X.  46,  the  court 
held,  aa  appears  in  the  headnote  of  the  case, 
that: 

"Where  a  party  is  induced  to  enter  into  an 
executory  contract  for  the  purchase  of  lands 
by  means  of  false  representation  on  the  part  of 
the  vendor,  if,  after  discovery  of  the  fraud,  he 
accept  a  conveyance,  he  cannot  set  up  the 
fraud  as  a  defense  in  an  action  for  the  purchase 
money." 

See  People  y.  Stephens,  71  N.  T.  627. 

It  should  be  noted,  however,  that  many 
cases  hold  in  the  case  of  a  contract  procured 
by  fraud  that  the  party  defrauded  may  go 
on  after  knowledge  of  the  fraud  and  per- 
form the  contract  and  not  lose  his  rl^t  to 
an  acti<m  of  deceit  when  It  appears  that 
there  has  been  no  waiver  of  the  claim  for 
daoiages.     We  are  not  called  to  pass  upon 


this  point,  as  tbe  plaintiff  did  not  go  on  with 
the  contract  in  question ;  and  we  are  fully  of 
the  opinion  that  In  refusing  to  go  on  the 
plaintiff  did  not  lose  his  right  of  action  In 
deceit. 

The  defendant's  exception  to  the  ruling  of 
said  Justice  denying  tbe  defendant's  mo- 
tion for  the  direction  of  a  verdict  and  tbe 
defendant's  exception  to  the  decision  upon 
bis  motion  for  a  new  trial  should  not  be  sus- 
tained, either  on  the  ground  that  there  has 
been  a  waiver  by  the  plaintiff  of  an  action 
for  deceit  or  on  the  ground  that  the  issue  of 
fraud  raised  by  tbe  declaration  was  not  sup- 
ported by  the  evidence. 

The  other  exceptions  of  the  defendant  are 
without  merit,  and  require  no  discussion  in 
this  opinion. 

The  defendant's  exceptions  are  all  over- 
ruled, and  tbe  case  Is  remitted  to  the  su- 
perior court,  with  direction  to  enter  Judg- 
ment upon  the  verdict 


(»i  Conn,  est) 
WHITNEY  CO.,  Inc.,  v.  CHURCH  et  ui. 
(Supreme  Court  of  filrrors  of  C<mnecticut 
June  14,  1917.) 

1.  Abbitbatioit  and  Awabd  «=934  — Pboob- 

DUBK— INIBODUCTION    OF  EVIDENCE. 

In  arbitration  proceedings,  where  the  arbi- 
trators stated  they  would  require  plaintiff  to 
prove  the  value  of  extra  work  done  by  him, 
but  plaintiff  elected  to  rely  upon  the  conclusive- 
ness of  the  architect's  statement  as  to  the  val- 
ue, and  defendant  introduced  evidence  as  to  the 
value,  plaintiff  could  not  complain  that  it  was 
error  not  to  reopen  the  case  to  show  the  value. 
[Ed.  Note. — For  other  cases,  sea  Arbitration 
and  Award,  Cent  IMg.  U  177-183.] 

2.  GORTBACTB    «=3287(2)— COKSTBUOTIOIf— AS- 
BITBATION. 

A  building  contract  providing  that  if  ex- 
tra work  was  required,  it  should  be  valued  by 
the  architect  and  the  contract  price  be  increased 
according  to  his  valuaticm,  but  that  if  the  valu- 
ation was  not  agreed  to,  Uiere  should  be  an  ar- 
bitration, the  architect's  certificate  of  value 
was  not  conclusive. 

[Ed.   Note.— For  othw  cases,   see  Contracts, 
Cent  Dig.  f  1332.] 

8.  Abbitbation  and  Awabd  9s384— Corduot 

OF  PB0CEKDZNG8— PbEJCDICB. 
Plaintiff  in  arbitration  was  not  harmed  by 
act  of  arbitrators  in  receiving  letter  from  de- 
fendant reiterating  defendant's  testimony  as  to 
a  proposition  on  which  the  arbitrators  ultimate- 
ly ruled  in  entire  accord  with  plaintiff's  conten- 
tion. 

[Ed.  Not& — For  other  cases,  see  Arbitration 
'and  Award,  Gent  Dig.  H  177-183.] 

4.  Abbitbation  and  Awabd  «=>31— Gondvot 
or  Fbocebdinos— Pbejttdice. 

Plaintiff  in  arbitration  was  not  harmed  by 
act  of  one  arbitrator  outside  a  session  in  talk- 
ing with  a  witness,  who  admitted  a  mistake  in 
his  testimony,  resulting  in  an  allowance  more 
favorable  to  plaintiff  than  would  otherwise  have 
been  made. 

[Ed.  Note.— For  other  cases,  see  Arbitration 
and  Award,  Cent  Dig.  {{  156-164.] 

5.  Abbitbation  and  Awabd  ®=»31— Gorduot 
OP  Pboceedinos — Pbejtjdice. 

Plaintiff  in  arbitration  was  not  harmed  by 
conduct  of  one  arbitrator  after  decision  against 


4s>Var  oUmt  esMS  m*  ram*  toplo  sad  KBT-NUMBBR  In  all  Kajr-Nnmbend  OlgMtt  and  ladexe* 


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plaintiff  u  to  existeneo  of  trade  cuBtom  In  aak- 
ing  a  contractor  outside  of  seasiona  what  the 
trade  custom  waa. 

[Eld.  Note. — For  other  cases,  see  Arbitration 
and  Award,  Cent  Dig.  SS  166-181.] 

6.  Abbitbatioit  and  Awabd  «s>2&— Powkbs 

or  ABBITRATOB8 — IinOTINO  SCOPB. 

Under  agreement  to  arbitrate,  providing  that 
the  arbitrators  are  fully  authorized  and  empow- 
ered to  determine  and  make  a  decision  on  all 
questicma  in  controversy  of  every  kind  and  char- 
acter submitted  hereunder,  the  arbitrators  could 
not,  by  B  rule  of  their  own,  limit  their  powers. 
[Ed.  Note.— For  other  cases,  see  Arbitratiim 
and  Award,  Cent  Dig.  St  147-154.] 

Appeal  from  Superior  Court,  Fairfield 
County ;   James  H.  Webb,  Judge. 

Arbitration  of  oontrovei'sy  between  the 
Whitney  Company,  Incorporated,  and  Alfred 
W.  Church  and  wlfa  From  a  Judgment  for 
remonstrants  against  the  Whitney  Company, 
such  Company  appeals.    No  error. 

John  B.  Keeler,  of  Stamford,  and  William 
A.  Moore,  of  New  York  City,  for  appellant 
Spotswood  D.  Bowers,  of  Bridgeport,  for 
appellees. 

SHUMWAX,  J.  The  controversy  between 
die  parties  arose  out  of  a  building  contract 
in  which  the  Whitney  Company  was  con- 
tractor and  A.  W.  Church  was  the  owner  of 
the  building.  The  cause  was  submitted  to 
arbitration  under  a  rule  of  court  The  ar- 
bitrators, having  made  an  award,  returned 
the  same  to  the  superior  court  The  de- 
fendants moved  the  court  to  accept  the  award 
and  render  Judgment  thereon  as  provided 
in  section  957  of  Geoeral  Statutes.  To  the 
acceptance  of  the  award  the  plaintiff  re- 
monstrated, alleging  that  the  arbitrators, 
"misconducted  themselves  in  sucb  manner  as 
evinces  partiality  toward  the  defendant  and 
prejudice  against  the  plaintiff,"  specifying  as 
such  misconduct  that  the  arbitrators  called 
before  them  In  secret  session  a  witness  who 
had  testified  In  behalf  of  the  defendants, 
and  examined  the  witness  In  the  absence  and 
without  the  consent  of  the  plaintiff  or  Its 
ooonsel;  that  the  arbitrators  addressed  a 
letter  to  one  of  the  defendants,  and  received 
from  blm  an  answer,  "containing  matter  of 
an  evidential  nature";  that  one  of  the  ar- 
bitrators made  an  inquiry  of  a  certain  con- 
tractor as  to  the  construction  as  understood 
by  contractors  of  a  clause  In  the  buUdlng 
contract,  the  subject  of  this  action.  The  re- 
monstrant further  alleged  that  the  arbitra- 
tors departed  from  the  principles  announced 
by  them  as  governing  their  hearing,  "and 
specifying  as  such  departure  certain  rulings 
upon  the  admission  and  rejection  of  evidence, 
as  well  as  making  erroneous  rulings  as  to  the 
legal  interpretation  of  the  building  con- 
tract between  the  parties,  and  that  the  ar- 
bitrators made  an  award  upon  matters  not 
in  any  way  submitted  to  them."  The  su- 
perior court  overruled  the  remonstrance  and 
accepted  the  awanl  and  rendered  Judgment 


for  the  defendants  to  neorec  <yt  the  plain- 
tiff, the  Whitney  Company,  $5,200.21  dam- 
ages. Tlie  plaintiff  appealed  from  tlie  Judg- 
ment, and  at  the  plaintiff's  request  the  court 
made  an  extended  finding,  setting  out  In  de- 
tail, the  proceedings  before  the  arbitrattMS. 
The  matters  contained  In  the  third  para- 
graph of  the  remonstrance  In  the  superior 
court  raise  the  most  important  qnestl<m  In 
the  case,  and  Justly  It  was  so  regarded  by 
that  court  The  allegations  in  the  paragraph 
named  are.  In  substance,  that  the  arbitrators 
refused,  "to  admit  and  consider  proper  com- 
petent and  relevant  testimony"  offered  by 
the  contractor  as  to  the  value  of  certain 
items  claimed  by  the  plaintiff  to  be  extra 
work.  The  clause  in  the  contract  covering 
the  "extra  work"  that  might  be  required  in 
carrying  out  the  contract  is  as  follows: 

"Should  any  alterations  be  required  in  the 
work  shown  or  described  by  the  drawings  _  or 
BpecificationB  a  fair  and  reasonable  valuation 
of  the  work  added  or  omitted  shall  be  made  by 
the  architect  and  the  sum  herein  agreed  to  be 
paid  for  the  work  according  to  uie  original 
specifications  shall  be  increased  or  diminished 
as  the  case  may  be.  In  case  such  valuation  is 
not  agreed  to  the  contractor  shall  proceed  with 
the  alterations  upon  the  written  order  of  the 
architect  and  the  valuation  of  the  work  added 
or  omitted  shall  be  referred  to  three  (3)  arbitra- 
tors (no  one  of  whom  shall  have  been  connected 
with  the  work  to  which  these  presents  refer) 
to  be  appointed  as  follows:  One  by  eadi  of 
the  parties  to  this  contract  and  the  third  by 
the  two  thus  chosen,  the  decision  of  any  two  of 
them  shall  be  final  and  binding  upon  both  par- 
ties." 

[1, 2]  The  Whitney  Cbmpany  contended  be> 
fore  the  arbitrators  that  under  this  dause 
In  the  contract,  the  valuation  placed  upon 
this  "extra  work"  by  the  architect  was  con- 
clusive. This  dalm  of  the  Whitney  Company 
was  properly  overruled  by  the  arbitrators, 
and  thegr  informed  counsel  or  the  parties  that 
they,  the  arbitrators,  would  expect  them  to 
offer  some  evidence  tending  to  prove  that  the 
items  of  "extra  work  were  of  the  value  In 
respect  to  time  and  material  as  Indicated  in 
their  statement  of  claim,"  and  this  while 
the  Whitney  Company  was  presenting;  its 
evidence.  The  position  taken  by  the  arbitra- 
tors and  the  ruling  uiton  the  question  was 
repeatedly  called  to  the  attention  of  plalatifif's 
counsel,  but  he  closed  the  testimony  for  the 
plaintiff  without  offering  the  evidence  in- 
dicated. The  defendante  as  part  of  their 
case  having  offered  evidence  of  the  value  of 
the  "extra  work,"  the  plaintiff  asked  to  be 
allowed  to  again  open  the  evidence  as  to  the 
value  of  "extra  work."  The  defendants  ob- 
jected, and  the  arbitrators  sustained  them; 
the  arbitrators  ruling  that  it  was  not  re- 
buttal testimony.  By  this  ruling  of  tBe  ar- 
bitrators, the  plaintiff  was  deprived  of  no 
right  It  had  full  opportunity  to  prove  its 
case,  but  preferred  to  rest  upon  its  claim 
that  the  valuation  of  the  architect  waa  con- 
clusive upon  the  defendant  Although  the 
ruling  of   the  arbitrators  might  have    been 


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Conn.) 


WHITNET  CO.  T.  CHURCH 


831 


thought  to  be  erroneous,  It  was  the  plain- 
tiff's duty  to  abide  by  and  comply  with  the 
mllng  and  condnct  his  case  In  accordance 
therewith  or  take  his  chances  of  losing  all 
right  to  produce  the  evidence  11  the  rulings 
of  the  arbitrators  should  be  finally  sustained. 
The  mllng  of  the  arbitrators  was  correct, 
and  If  the  plaintiff  had  lost  some  substantial 
right,  it  coald  not  complain,  for  It  had  full 
opportunity  to  prove  its  case  if  it  had  seen 
lit  to  do  so.  But  this  ruling  affected  but  few 
Items  In  the  plaintHTs  claim,  and  these  not 
in  any  substantial  manner  unless  the  claims 
of  the  plaintiff  bad  been  fully  sustained. 

[3-S]  Referring  now  to  the  claimed  miscon- 
duct of  the  arbitrators  In  writing  a  letter 
to  one  of  the  defendants  without  the  knowl- 
edge m-  consent  of  the  plaintiff,  it  appears 
that  this  letter  was  written  after  the  defend- 
ant had  testified,  and  in  his  reply  to  the 
letter  he  reiterated  in  substance  his  testi- 
mony before  the  arbitrators.  Notwithstand- 
ing the  letter  and  the  testimony,  the  arbitra- 
tors awarded  to  the  plaintiff  the  full  amount 
of  the  item  as  claimed  by  the  plaintiff  to 
which  the  communication  referred.  One 
Conklln  had  testified  before  the  arbitrators 
•8  to  the  value  of  certain  plumbing  work, 
and  In  his  testimony  had  snbmitted  figures 
showing  the  value  of  the  work.  These  figures 
Were  received  with  the  plaintiff's  consent. 
This  testimony  was  under  discussion  in 
private  session,  and  one  of  the  arbitrators 
claimed  there  was  an  error  in  Oonklln's  fig- 
ures. One  of  the  arbitrators  happened  to  meet 
ConkUn  In  the  building  where  they  were  con- 
ferring, and  called  his  attention  to  the 
claimed  mistake.  Gonklln  admitted  there 
Wag  a  mistake.  The  amount  awarded  by  the 
arUtrators  was  $156.50  less  than  the  figures 
snhmitted  by  Conklln  and  to  that  amount 
more  favorable  to  the  plaintiff.  The  finding 
shows  that  there  was  a  controversy  over  the 
doors  which  the  plaintiff  furnished  for  the 
building.  The  spedflcatlons  required  they 
should  be  VA  Inches  thick.  The  defendants 
dalmed  they  should  be  allowed  the  expense 
of  putting  in  doors  1%  inches  thick.  The 
plaintlfl  claimed  that  there  was  a  trade  cus- 
tom to  the  effect  that  specifications  calling 
for  doors  1^  inches  la  thickness  meant  a 
door  1%  inches  thick.  The  arbitrators  de- 
cided against  the  claim  of  the  plaintiff.  Aft- 
er the  arbltrat(Mrs  had  decided  this  question 
in  this  manner,  one  of  the  arbitrators  met 
a  contractor,  one  Mr.  Bottomley,  and  asked 
him  if  there  waa  snch  a  trade  custom.  The 
fact  of  this  conversation  was  reported  to  the 
counsel  of  the  plaintiff  before  the  final  award 
and  no  protest  was  made  or  other  action  tak- 
en until  the  remonstrance  was  filed  in  the 
superior  court. 

Certainly  there  was  notlilng  in  these  sev- 
eral acts  of  claimed  misconduct  on  the  part 
of  the  arbitrators  that  was  harmful  to  the 
plaintiff  or  showing  any  partiality  or  prej- 
udice, and  the  award  should  not  be  set  aside 
on  account  of  them. 


The  plaintiff  lias  also  assigned  as  error  the 
action  of  the  court  in  holding  that  the  arbitra- 
tors in  allowing  damages  to  the  defendant  on 
account  of  delay  in  the  work  from'  June  28, 
1913,  to  December  1, 1913,  was  not  contrary  to 
the  provisions  of  the  submission  to  arbitration, 
and  contrary  to  the  principles  of  procedure 
announced  by  the  arbitrators.  The  original 
contract  in  question  was  made  in  the  spring 
of  1912.  Differences  having  arisen  between 
the  parties,  the  work  was  discontinued,  and 
the  parties  made  a  supplemental  agreement 
on  June  24,  1913,  in  which  latter  agreement 
it  stipulated  that  the  work  should  be  com- 
pleted by  December  1,  1913.  The  agree- 
ment to  arbitrate  provided,  among  other 
things: 

"The  arbitrators  are  fully  authorized  and  em- 
powered to  determine  and  make  a  dedsicHi  on 
all  questions  in  controversy  of  every  kind  and 
character  submitted  hereunder." 

The  very  first  clause  of  the  agreement  to 
arbitrate  was  this : 

"That  all  questions  in  controversy  as  to  dam- 
ages for  delay  be  submitted  tr>  arbitraticm." 

There  is  some  question  whether  the  de- 
fendants should  recover  damages  for  the  de- 
lay between  June  28,  1913,  the  date  of  the 
agreement  to  arbitrate,  and  December  1, 
1913,  the  time  when  by  that  agreement  the 
plaintiff  was  to  complete  the  work,  but  it 
does  not  appear  from  the  finding  that  they 
did  allow  damages  for  that  period.  The 
defendants'  claim  as  stated  in  their  counter- 
claim was  as  follows: 
Rental  value  of  premises  13  months  at 

$700  per  mo. $9^00 

Rental  value   of  portion   of  premises  2 

mos.  at  $400  perma 800 

$9,900 
The  finding  states  that  the  arbitrators  con- 
sidered these  two  sums,  $9,100,  and  $800, 
together,  and  the  "lump  sum"  of  $6,500  was 
allowed  as  a  compromise  between  the  ar- 
bitrators. The  evidence  showed  that  by  the 
original  agreement  the  plaintiff  agreed  to 
complete  the  contract  by  May  1,  1913,  and 
the  residence  was  completed  about  Septem- 
ber 1,  1914,  and  the  contract  called  for  an 
expenditure  of  upwards  of  $90,000.  The 
damages  suffered  by  the  defendants  by  reason 
of  the  failure  of  the  plaintiff  to  keep  its 
contract  was  a  question  of  fact,  and  it  does 
not  appear  that  any  illegal  elements  were 
Included  in  the  amount  awarded. 

This  court  has  uniformly  held  that  an 
award  of  arbitrators  will  be  set  aside  only 
for  partiality  and  corruption  in  the  arbitra- 
tors or  mistake  in  their  principles.  In  re 
Curtls-CasUe,  64  Conn.  516,  30  AU.  769,  42 
Am.  St  Rep.  200 ;  Brown  v.  Green  &  Noyes, 
7  Conn.  542. 

[I]  In  this  case  the  submission  was  broad 
and  comprehensive,  and  a  rule  adopted  by  the 
arbitrators  as  to  their  method  of  procedure 
could  not  operate  to  limit  their  powers  un- 
der the  submission,  especially  as  in  this  case. 
If  there  was  an  announcement  that  hearings 


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101  ATLANTIC  REPORTER 


(Conn. 


would  be  conducted  u  a  case  In  court,  such 

Intention  waa  abandoned  and — 

"it  was  decided  to  go  ahead  and  have  counsel 

Present,  but  that  the  arbitrators  were  not  to 
e  bound  by  the  strict  rules  of  evidence,  and 
that  they  should  have  the  right  to  go  outside 
the  record  and  make  such  inquiry  as  they  saw 
fit  to  get  light  upon  it  and  to  get  information 
to  help  in  making  a  fair  award,  which  waa  ap- 
parenuy  consent^  to  by  the  parties." 

Tliere  la  no  error.    The  otber  Judges  con- 
curred. 


(91  Conn.  BSB) 

ACAMPORA  V.  WARNER. 

(Supreme  Court  of  Errors  of  Connecticut. 
June  1,  1917.) 

1.  MOBTOAOES      «=>497(1)— FOBECLOSUBB— Br- 

Under  Gen.  St.  1002,  {  4123,  providing  that 
foreclosure  of  a  mortgage  bars  further  action 
on  the  debt  unless  the  persons  liable  for  pay- 
ment .thereof  are  made  parties,  the  foreclosure 
operates  as  a  payment  of  the  debt,  unless  the 
creditor  makes  all  persons,  liable  for  the  pay- 
ment, parties  to  the  foreclosure  proceedings. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  »  1469,  1471,  1473^ 

2.  MOBTOAOEB      ^=»569(4)— FOBBOIiOBUBB— Ev- 

FBCT. 

Such  method  is  not  the  only  one  by  which  a 
d^ciency  may  be  determined. 

8.    MOBTOAOES      l3=>505(l)— F0BKCI.0817HE— Db- 

FiciENOT  Judgment— Appraisal. 
When  a  mortgage  is  foreclosed  the  mort- 
gagor, being  a  party,  may  demand  an  appraisal 
to  determine  the  value  of  the  property  as  a 
means  of  fixing  any  deficiency,  but  when  there 
is  no  appraisal  a  further  suit  on  the  Judgment 
is  not  barred. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  {  1501.] 

Appeal  from  City  Court  of  New  Haven; 
John  R.  Booth,  Judge. 

Action  by  Raphael  Acampora  against  Hu- 
bert B.  W/amer,  Jr.  Judgment  for  plalntlfl, 
and  defendant  appeals.   No  error. 

Henry  W.  Stowell,  of  New  Haven,  for  ap- 
pellant. Arthur  C  Graves  and  Robert  J. 
Woodruff,  both  of  New  Haven,  for  appellee. 

RORABACK,  J.  On  January  5,  1913,  the 
plaintiff  obtained  a  Judgment  against  the 
defendant  in  the  court  of  common  pleas  for 
New  Haven  county  for  $327.  An  execution 
was  issued  upon  this  Judgment  on  January 
31,  1913,  and  a  deputy  sheriff  levied  upon 
a  certain  automobile  belonging  to  the  de- 
fendant and  tools  It  Into  his  possession.  The 
defendant  desired  to  use  the  automobile  In  his 
business,  and  requested  the  plaintiff's  attor- 
ney to  accept  as  temporary  security  for  the 
payment  of  the  Judgment  a  note  and  mort- 
gage for  $327  upon  two  pieces  of  real  estate 
of  which  the  defendant  was  the  record  own- 
er. The  lien  upon  the  automobile  was  then 
released.  The  plaintiff  was  not  present  when 
the  defendant  offered  his  note  as  security  for 
the  Judgment,  but  the  plaintiff's  attorney 
accepted  this  note  and  mortgage  with  the 
distinct  understanding  that  they   were  re- 


ceived as  temporary  security  only  for  the 
payment  of  the  Judgment.  The  defendant 
represented  to  the  plaintiff's  attorney  that 
he  Intended  to  settle  this  Judgment  within  a 
short  time,  and  merely  gave  the  note  and 
mortgage  temporarily.  At  the  time  of  giving 
this  mortgage,  the  defendant  grossly  magni- 
fied the  value  of  the  mortgaged  property,  and 
represented  to  the  plalntiCTs  attorney  that 
one  piece  represented  In  the  mortgage  waa 
worth  at  least  $4,500,  and  was  mortgaged  for 
only  $2,500,  and  that  the  other  piece  was 
worth  iajSOO,  and  was  mortgaged  for  only 
$1,700.  As  a  matter  of  fact,  both  of  these 
pieces  of  real  estate  were  worth  less  tban 
the  first  mortgages  upon  them,  and  the  de- 
fendant's interest  in  both  was  worthless. 
After  falling  to  keep  many  promises  to  pay 
the  Judgment  made  by  the  defendant,  the 
plaintiff  on  February  24,  1913,  brought  fore- 
closure proceedings  on  the  mortgage,  and  on 
March  21,  1913,  obtained  a  Judgment  of 
strict  foreclosure  thereon.  On  or  about  the 
date  of  final  Judgment  In  the  foreclosure  pro- 
ceedings, the  plaintiff  was  himself  foreclosed 
by  the  holders  of  prior  mortgages,  and  the 
plaintiff  failed  to  realize  anything  upon  his 
Judgment  debt  against  the  defendant.  No 
deficiency  Judgment  was  asked  for  or  taken 
in  the  foreclosure  suit.  The  defendant  con- 
tended that  the  Judgment  of  foreclosure 
against  the  defendant,  upon  the  mortgage, 
operated  ipso  facto  as  an  extinguishment  oC 
the  Judgment  debt 

[1]  Prior  to  1833,  the  foreclosure  of  a 
mortgage  operated  as  a  bar  to  any  subse- 
quent action  on  a  mortgage  note.  (Chapter  18 
of  the  Public  Acts  of  1833  removed  this  bar, 
and  ever  since  then  the  right  of  a  mortgagee 
to  a  deficiency  Judgment  after  strict  fore- 
closure has  always  been  coupled,  In  this 
state,  with  some  provision  for  fixing  the 
actual  value  of  the  property  as  of  the  date  of 
the  foreclosure,  and  for  making  that  valua- 
tion a  basis  for  determining  the  existence 
and  amount  of  any  claimed  deficiency.  Rev. 
1849,  UUe  12,  c  3,  p.  341,  i  27;  Rev.  1866. 
title  IS,  c.  3,  p.  396,  i  28 ;  Rev.  1875,  title  18, 
c.  7,  p.  358,  i  2 ;  General  Statutes  of  1888, 
§  3011;  (Jeneral  Statutes  of  1902,  {  4124. 
See  Staples  v.  Hendrick,  89  Conn.  100,  103, 
93  AtL  5.  Section  4123  of  the  General  Stat- 
utes of  1902  provides  that: 

"The  foreclosure  of  a  mortgage  shall  be  a  bar 
to  any  further  action  upon  the  mortgage  debt, 
note,  or  obligatiou,  unless  the  person  or  persons 
who  are  liable  for  the  payment  thereof  are  made 
parties  to  audi  foreclosure." 

This  statute  plainly  indicates: 

"That  the  foreclosure  of  a  mortgage  should 
operate  as  a  payment  of  the  debt  to  secure 
which  the  mortgage  was  given,  unless  the  cred- 
itor chose  to  make  all  the  persons  liable  for  the 
payment  of  such  debt  parties  to  the  foreclosure 
proceedings."  Ansonia  Bank's  Appeal  from 
Commissioners,  68  Conn.  257,  259,  18  AtL  103O, 
1031. 

"If  the  mortgagee  is  not  willing  to  take  the 
property  mortgaged  as  full  payment  for  his 
debt  he  has  only  to   make  all   the  persons  to 


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ROWELL  y.  ROSS 


333 


whom  he  may  wish  to  resort  for  further  pay- 
ment parties  to  his  foreclosure  suit"  Ansonia 
Bank's  Appeal  from  Commissioners,  supra. 

[2]  There  Is  no  merit  In  the  defendant's 
contention  tbat  the  method  laid  down  by  the 
statutes  is  an  excluslre  method  by  which  a 
mortgagee  may  collect  the  deficiency,  if  any, 
and  is  the  only  method  by  which  a  supposed 
deficiency  may  be  determined.  As  we  have 
stated  such  a  procedure  is  binding  only  as  to 
those  upon  whose  motion  the  sale  was  or- 
dered. 

[3]  The  defendant  was  a  party  to  the  fore- 
closure suit,  but  there  was  no  appralsaL 
The  Legislature  did  not  intend  to  bar  suits 
trheie  there  was  no  appraisal.  It  did  iutend 
that  the  mortgage  debtor  as  well  as  the 
-creditor  should  haye  an  opportunity  to  have 
an  appralsaL  This  is  optional,  not  com- 
pulsory. The  statute  proceeds  upon  the 
theory  that  the  debtor  has  an  interest  In 
baying  an  appraisal;  therefore  he  may  move 
for  the  appointment  of  appraisers.  Wind- 
liam  County  Savings  Bank  v.  Hlmes,  65 
<:k>nn.  433,  436, 12  Atl.  517. 

There  is  no  error.  The  other  Judges  con- 
-cnrred. 


(91  Conn.  TOt)    

ROWEIili  ▼.  ROSS  et  aL 

(Supreme  Court  of  Errors  of  Connecdeut. 
June  14,  1917.) 

1.  Jttdomkrt  4=378— Bbbonboub  JmtaumtT— 
Consent  of  Defendant. 

Where  a  def«idant  appeared  and  admitted 
hifl  liability  and  consented  in  open  court  to  en- 
try of  judgment  against  him  for  the  full  amount 
of  the  ad  damnum  dause,  it  was  error  for  the 
-court  to  give  judgment  in  his  favor. 

[Ed.  Note. — For   other   cases,   see   Judgment, 
Cent.  Dig.  §  133.] 

2.  Attobnkt  and  Cusnt  «=»103  —  Buplot- 

MENT   OK  Assistant  Cotjnsei.  —  Ratifica- 

TIOW. 

Defendant  employed  H.,  knowing  that  he 
bad  not  been  active  in  the  practice  of  law  of 
late  years,  and  that  it  might  be  necessary  for 
bim  to  employ  counsd  in  some  other  state. 
Shortly  thereafter  H.  employed  plaintiff  as 
counsel  in  the  matter  and  informed  defendant 
thereof.  Defendant  made  no  objection  then  or 
later  when  the  matter  was  talked  over  in  plain- 
tiff's office.  HM  defendant  was  liable  to  plain- 
tiff for  the  reasonable  value  of  his  services. 

[lOd.    Note.— For    other    cases,    see   Attorney 
and  Client,  Cent  Dig.  {  154.] 

8.  Trial  «s»11(3)  —  Transfeb  of  Causes  — 
Time. 

Where  the  requests  to  transfer  the  case  to 
the  jury  docket  were  not  made  either  within 
.30  days  of  the  return  day  or  within  10  days 
after  an  issue  of  fact  was  joined  as  required 
by  statute,  the  court  did  not  err  in  granting 
a  motion  ordering  the  issues  tried  to  the  court 
(Ekl.  Note.— For  other  cases,  see  Trial,  Cent. 
EHg.  S  30.] 

4.  Appbai,  and  Grbob  <S=»1211  —  Right  to 

Traksfeb  to  Jubt  Docket  on  Remand. 

Where  a  case  was  sent  back  to  the  superior 

4M>urt  for  a  new  trial,  it  remained  on  the  court 

docket,  and  unless  an  issue  of  fact  was  after- 


wards joined,  there  was  no  right  of  transfer  to 
the  jury  docket. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ${  4711,  4712.] 

Appeal  from  Superior  Court,  Fairfield 
County;  William  H.  Williams,  Judge. 

Action  by  George  P.  Rowell,  an  attorney 
at  law,  against  P.  Sanford  Ross  and  one 
Hance  to  recover  for  professional  services 
rendered.  Judgment  for  plaintifF  and  d» 
fendant  Honce.  Defendant  Ross  and  plain- 
tiff appeal.  Error  on  plalntilTs  appeal;  no 
error  on  defendant's  appeal. 

Israel  J.  Cobn,  of  Bridgeport,  for  appellant 
Ross.  John  0.  Chamberlain,  of  Bridgeport, 
and  George  P.  Rowell,  of  Stamford,  for 
appellant  plalntifr. 

BEACH,  J.  [1]  This  is  the  third  appear- 
ance of  this  case  in  this  court  The  material 
facts  are  stated  in  87  Conn.  157,  87  Atl.  355. 
On  the  last  appeal  a  new  trial  was  ordered 
largely  because  the  trial  court  excluded  the 
testimony  of  the  defendant  Hance  as  to  the 
terms  of  his  employment  by  the  defendant 
Ross,  and  thus  deprived  the  defendants  of 
a  fair  trial  as  to  that  branch  of  their  de- 
fense. When  the  case  was  tried  again  the 
defendant  Hance  did  not  appear  as  a  wit- 
ness in  his  own  behalf,  or  on  behalf  of  Ross, 
but  admitted  his  liability  and  consented  in 
open  court  to  a  Judgment  against  himself 
for  the  full  amount  of  the  ad  damnum  clause. 
Nevertheless,  the  court  gave  judgment  In 
Hance's  favor,  and  this  we  think  was  error. 
The  plalntifr  was  induced  by  the  consent 
to  withhold  his  proofs  as  against  Hance,  and 
It  is  hardly  fair  to  require  him  on  this  ap- 
peal to  make  out  a  case,  which  he  was  not 
required  to  make  In  the  trial  court  More- 
over, It  Is  conceded  on  the  brief  by  counsel 
who  represented  Hance  on  the  trial  that  the 
court  erred  in  rendering  Judgment  in  Hance's 
favor. 

[2]  The  appeal  of  the  defendant  Ross  turns 
almost  wholly  upon  the  question  whether 
Hance  as  attorney  for  Ross  bad  general  or 
special  anthority  to  employ  the  plalntlfF  as 
personal  attorney  for  Ross  so  as  to  charge 
Ross  with  liability  for  the  reasonable  value 
of  the  plaintiff's  services ;  and,  if  not,  wheth- 
er Ross  has  made  himself  liable  therefor 
by  dealing  with  the  plaintiff  as  his  persona] 
counsel  after  knowledge  that  be  was  acting 
as  such. 

The  findings  of  the  trial  court  are  sufS- 
cient  to  support  the  Judgment  against  Ross 
upon  either  of  these  theories.  They  are 
vigorously  attacked,  and  it  is  assigned  as 
error  that  the  trial  court  erred  in  finding 
as  appears  by  14  separate  paragraphs  of  the 
finding,  and  in  refusing  to  find  as  request- 
ed in  24  separate  paragraphs  of  the  draft 
finding.  It  is,  however,  unnecessary  to  pur- 
sue these  assignments  of  error  In  detail,  be- 
cause the  essential  facts  on  which  the  lia- 


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blllty  of  Ross  rests  are  not  seriously  disput- 
ed. It  is  sufficiently  established  by  the  evi- 
dence that  at  the  time  Boss  employed  Hance 
to  collect  the  Judgment,  he  knew  that  Hance 
bad  not  been  active  of  late  years  In  the  prac- 
tice of  the  law,  and  hiid  reason  to  believe 
that  It  might  be  necessary  for  him  to  employ 
counsel  In  some  other  state;  that  within 
a  few  weeks  after  Hance  employed  the  plaln- 
tlff  Ross  was  Informed  of  the  fact,  and 
made  no  objection  to  it;  that  he  was  there- 
after informed  from  time  to  time  in  a  gen- 
eral way  of  the  services  that  the  plaintiff 
was  rendering,  and  that  about  a  year  and 
a  half  after  Hance  had  employed  the  plain- 
tiff Ross  came  with  Hance  to  the  plaintiff's 
office  and  was  fully  Informed  as  to  services 
wliicb  had  been  rendered  and  would  prob- 
ably be  rendered  thereafter  by  the  plaintiff. 
These  services  finally  resulted  in  a  Judgment 
for  $17,600,  wUcb  the  plaintiff  settled  for 
112,500.  The  court  has  found  that  there 
was  no  express  agreement  between  Ross  and 
Hance  that  the  latter  should  collect  the  judg- 
ment upon  the  so-called  10  per  cent  basis. 
This  finding  Is  excepted  to,  but  the  deposi- 
tions and  testimony  of  the  defendants  on 
this  point  were  so  contradictory  and  unsat- 
isfactory as  to  Justify  the  court  in  finding 
as  It  did.  Moreover,  as  pointed  out  In  87 
Conn.  162,  87  Atl.  855,  the  character  and 
extent  of  the  plaintiff's  services  and  the  sub- 
sequent conduct  of  Hance  when  the  plaintiff 
consulted  talm  as  to  his  fees  are  not  con- 
sistent with  the  existence  of  a  special  con- 
tract between  the  plaintiff  and  Hance;  and 
they  are  equally  Inconsistent  with  the  ex- 
istence of  such  a  contract  between  Hance  and 
Rosa 

Tile  defendant  relies  on  the  rule  that  an 
attorney  has  no  general  authority  to  employ 
counsel  or  associate  attorneys  at  his  client's 
expense,  and  claims  that  there  was  no  suffi- 
cient evidence  of  special  authority  or  ratifica- 
tion. The  rule  relied  on  is  correct,  but  we 
cannot  assent  to  the  proposition  that  the  de- 
fendant Ross  can  take  the  benefit  of  the 
plaintiff's  services,  knowing  that  he  was  em- 
ployed as  counsel  In  the  case,  and  assenting 
by  his  conduct  to  such  employment,  without 
becoming  liable  for  the  reasonable  worth  of 
the  services  rendered.  The  authorities  on 
tikis  subject  are  quite  numerous  and  some  of 
them  very  much  In  point.  "It  is  elementary 
law  that  an  attorney  in  a  particular  case  has 
no  general  authority,  by  virtue  of  his  re- 
tainer, to  employ  other  counsel,  either  by 
way  of  substitution  or  as  assistant  or  as- 
sociate counsel,  at  tbe  expense  of  bis  client. 
But  where  the  employment  of  the  original 
attorney  is  general  In  its  character,  and 
amounts  to  an  agency  In  the  legal  business  of 
the  client,  or  where  the  authority  or  the  sub- 
sequent assent  ou  the  part  of  the  client  to 
the  employment  of  additional  counsel  can 
fairly  be  inferred  from  the  facts  of  the  case, 
the  client  will  be  bound  by  sucta  employment." 


Northern  Pac.  Ry.  C!o.  t.  Clarke,  106  Fed. 
794,  797,  45  O.  a  A.  635,  637.  "If  the  at- 
torney, who  has  the  management  of  the  suit, 
employ  an  assistant  at  the  trial,  and  the 
client  is  present,  and  sees  the  person,  thus 
employed,  assist  in  managing  and  conduct- 
ing the  suit  the  inference  would  be  strong, 
it  not  irresistible,  that  he  consented  to  such 
employment,  and  that  he  would  be  liable  for 
the  fees  of  the  assisting  counsel."  Brlgga 
V.  Town  of  Georgia,  10  Vt.  68,  70. 

Where  an  attorney  employs  counsel  it  is  a 
question  of  fact  whether  be  did  not  become 
personally  liable  for  his  fees,  although  for  the 
benefit  of  his  client.  But  if  the  client  be  pres- 
ent at  the  trial,  he  is  liable  for  the  services  of 
counsel,  although  there  was  a  secret  agree- 
ment by  the  attorney  that  he  should  pay  for 
them.  Weeks  on  Attorneys  (2d  Ed.)  p.  504. 
"The  plaintiff  was  employed  in  the  case 
through  tbe  agency  of  Porter,  who  was  the  at- 
torney of  record  of  tbe  defendant  in  the  suit, 
and  who  also  had  the  management  and  prepa- 
ration of  the  case  for  trial.  The  plaintiff,  be- 
ing thus  introduced  Into  the  case,  assumed  the 
relation  of  counsel  In  the  presence  of  the  de- 
fendant, •  •  •  and  the  defendant  con- 
sulted with  him  on  the  triaL  This  would 
ordinarily  be  quite  sufficient  to  render  the 
party  liable  for  the  services  performed.  But 
it  Is  said  that  there  was  a  special  agreement 
made  between  tbe  defendant  and  the  at- 
torney of  record,  that  if  senior  counsel 
should  become  necessary,  the  attorney  would 
pay  such  counsel,  and  that  the  defendant 
should  be  at  no  expense  in  relation  theretOL 
This  was  a  secret  arrangement,  unknown  to 
the  plaintiff,  and  one  which,  in  the  ordinary 
course  of  professional  services,  he  bad  no 
reason  to  suppose  might  exist  It  may  oper- 
ate as  a  valid  contract  between  the  parties  to 
it ;  but  as  respects  the  plaintiff,  it  cannot  un- 
der the  circumstances  avail  the  defendant 
•  •  •  We  think  it  was  the  defendant's 
duty,  before  thus  knowingly  receiving  tbe 
plaintiff's  services  and  accepting  him  as  coun- 
sel to  manage  his  case,  to  inform  bim  of  the 
special  agreement  with  Mr.  Porter,  and  that 
the  defendant  was  to  be  at  no  expense  for 
the  fees  of  the  senior  counsel.  Not  having 
done  so,  but  remaining  silent  on  the  subject 
when  he  should  have  spoken,  and  when  the 
plaintiff  might  have  withdrawn  tron>  the 
case,  tbe  defendant  after  choosing  to  avail 
himself  of  tbe  professional  services  of  the 
plaintiff,  cannot  now  avoid  a  personal  lia- 
bility for  the  payment  of  a  reasonable  cchu- 
pensation  therefor."  Brtgham  y.  Foster,  89 
Mass.  (7  Allen)  419,  421.  See,  alao,  6  C.  J. 
668,  669,  and  numerous  cases  referred  to  in 
the  notes. 

Tbe  above  excerpts  state  tbe  rule  applica- 
ble to  this  case  with  such  fullness  and  clear- 
ness that  we  deem  it  unnecessary  to  add  any 
further  comment 

[3,4]  Tbe  defoidant  also  claims  to  have 
been  illegally  deprived  of  a  Jury  triaL    On 


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LAND  TITLE  «c  TRUST  CO.  y.  SHOEMAEEB 


835 


the  first  trial  a  jury  was  waived  by  stipula- 
tion. When  the  time  for  the  second  trial  ap- 
proached the  defendants,  haTing  filed  s^a- 
rate  answers  involving  new  issues  of  fact 
claimed  the  case  again  for  the  Jury  docket, 
but  failed  to  file  within  3  weeks  after  the  new 
issues  were  Joined  any  written  notice  stat- 
ing which,  if  any,  of  the  issnes  they  desired 
to  be  tried  to  the  Jury.  For  this  reason  the 
court  granted  a  motion  to  erase  from  the  Jury 
docket  and  ordered  the  issues  tried  to  the 
court.  Since  then  no  new  issues  of  fact  have 
been  joined.  When  the  case  came  back  for 
the  second  time  to  the  superior  court  for  a 
new  trial  on  the  old  issues  of  fact,  the  de- 
fendants again  attempted  to  have  the  case 
put  on  the  Jury  docket,  and  their  various  re- 
quests and  motions  to  that  effect  were  denied. 
In  this  the  court  did  not  err.  These  last  re- 
quests that  the  case  be  entered  on  the  Jury 
docket  were  not  made  either  within  30  days 
of  the  return  day  or  within  10  days  after  an 
issue  of  fact  was  Joined  as  required  by  stat- 
ute. When  a  case  is  sent  back  to  the  superior 
court  for  a  new  trial,  it  goes  back  to  the  same 
docket  as  before.  If  to  the  court  docket,  it 
remains  there  unless  an  issue  of  fact  Is  after- 
ward Joined,  when  it  may  be  transferred 
to  the  jury  docket  on  request  within  10  days 
thereafter.  But  the  statutes  make  no  pro- 
vision for  the  transfer  to  the  jury  docket  of 
a  case  which  has  been  tried  to  the  court  and 
sent  back  for  a  new  trial,  unless  an  issue 
of  fact  is  joined  after  the  case  is  remanded, 
or  the  court  in  Its  discretion  orders  it  to  be 
tried  to  the  jury. 

There  is  error  on  the  ptaintlfTs  am)eal. 
There  is  no  error  on  the  defendant's  appeal, 
nie  other  Jndees  concurred. 


(ST  Pa.  213) 
LAND  TITLE  &  TRUST  CO.  t.  SHOB- 
MAKER. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1017.) 

1.  MOSTOAOXS  i8=>567(2)  —  Fund  —  Disposi- 

TIOH. 

An  owner  of  real  estate  executed  a  mortgage 
thereon  to  a  trust  company  for  $40,000,  when 
only  $82,000  had  been  loaned,  and  gave  the 
mortgagee  a  demand  note,  providing  that  the  se- 
curities pledged  and  any  thereafter  pledged 
should  apply  io  the  same  way  to  the  payment  of 
bis  future  obligations,  and  that  the  securities 
should  stand  as  a  general  continning  collateral 
security  for  the  whole  obligation.  Thereafter 
the  mortgagor  gave  the  trust  co^lpan;  a  bond 
to  indemnify  it  against  loss  from  issuing  a  ti- 
tle policy  in  favor  of  mortgagee  of  other  prop- 
erty owned  by  the  mortgagor,  and  later  gave  a 
second  mortgage  upon  the  property  covered  by 
the  first  $40,000  mortgage:  the  second  mort- 
gagee having  notice  that  only  $32,000  had  been 
loaned  on  the  first  mortgage.  The  trust  com- 
pany's mortgage  was  thereafter  foreclosed  and 
the  property  sold.  Held,  that  under  the  agree- 
ment between  the  mortgagor  and  the  trust  com- 
puiiy  a  potential  obligation  such  as  that  createtl 
by  the  bond  of  indemnity  related  back  to  the 
time  of  the  execution  of  the  mortgage,  when  it 
became   a   fixed    liability,   and    that   the    trust 


company  was  entitled  to  payment  of  the  fall 
amount  of  the  $40,000  mortgage  in  preference  to 
the  second  mortgagee. 

[Ed.  Note.— For  other  cases,  see  Mortgages. 
Cent  Dig.  §{  1686,  1637.] 

2.  MOBTGAGES    lS=50,    90— CoNTBACT   FOB    PU- 
TDBE   AFFIBMANCE— ReCOBD. 

Where  a  contract  for  advances  or  for  the 
assumption  of  future  obligations  accompanies  a 
mortgage,  it  is  not  essential  to  its  validity  that 
the  engagement  as  to  advances  be  placed  on 
record  or  expressly  referred  to  in  the  mortgage. 

(Bid.  Note. — For  other  eases,  see  Mortgages, 
Cent  Dig.  H  13»-140,  109,  200.] 

3.  MOBTGAGES   <S=16,   115— FuTtJBE  ADVANCB- 
MENTS— CONSTBCCTION. 

Where  a  contract  for  advances  or  for  the 
assumption  of  future  obligations  accompanies  a 
mortgage,  there  is  a  sufficient  consideration  for 
the  mortgage,  and  the  lien  of  payments  made  un- 
der the  contract  relates  back  to  the  date  of  the 
naortgage,  even  though  the  advances  are  liquida- 
tions of  assumed  responsibilities  incurred  after 
the  date  of  subsequent  or  Junior  incumbrances 
placed  upon  the  mor^aged  property. 

[Ed.  Note. — For  other  cases,  see  Mortgages. 
Cent  Dig.  {{  18,  19,  229.] 

4.  Appeal  and  Ebbob  «=>731(4)  —  Assign- 
ments OF  Erbor— Sufficiency. 

Assignments  of  error  complaining  of  dismiss- 
al of  exceptions  to  findings  and  conclusions  of 
an  auditor  are  defective,  where  not  containing  in 
totldem  verbis  the  court's  action  on  the  partic- 
ular exception,  and  where  not  showing  where 
the  matter  referred  to  is  to  be  found  in  the  paper 
tiooks  or  the  appendix. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  3020.] 

Appeal  from  Court  of  Common  Pleas,  P&lla- 
delphia  County. 

Scire  facias  snr  mortgage  by  the  Land 
Title  &  Trust  Company  against  Samuel  Shoe- 
maker. From  an  order  dismissing  excep- 
tions to  report  of  auditor  distributing  fund 
reollzed  from  the  proceeds  of  a  sheriff's 
sale,  Emma  C.  Bergdoll  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSCHZISKBR,  FRAZER,  and  WAL- 
LING, JJ. 

Nicholas  H.  Larzelere  and  R.  Stuart  Smith, 
both  of  Philadelphia,  for  appellant.  Ed- 
ward Brooks,  Jr.,  and  E^ederlck  J.  Oeiger, 
both  of  Philadelphia,  for  appelleew 

MOSGHZISKER,  J.  This  case  Involves 
the  distribution  of  a  fund  raised  at  sheriff's 
sale  upon  the  foreclosure  of  a  mortgage.  The 
matter  was  referred  to  an  auditor,  whose 
report  was  confirmed  by  the  court  t>elow. 
Emma  O.  Bergdoll  has  appealed  from  the  de- 
cree of  confirmation. 

Samu^  Shoemaker  owned  a  property  at 
Fifty-Second  street  and  Wynnefield  avenue, 
Philadelphia,  which,  on  September  9,  1909, 
he  mortgaged  to  the  Land  Title  &  Trust  Com- 
pany for  $40,000;  the  mortgage  was  forth- 
with recorded.  Sul>8equently,  In  1914,  fore- 
closure proceedings  were  instituted  thereon 
and  a  Judgment  entered  against  ttie  mortga- 
gor for  $43,946.67 ;  thereafter,  on  February  2, 
1915,  the  property  was  sold  at  sherifTs  sale  re- 


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101  ATLANTIC  REPORTER 


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allzlng  $46,600;  at  settlement,  after  paying 
taxes  and  charges,  $35,560  of  tbls  amount  was 
handed  to  the  mortgagee,  and  the  balance, 
$9,305.57,  was  paid  Into  court  for  distribu- 
tion, being  the  fund  in  controversy.  The 
$40,000  mortgage  was  intended  as  collateral, 
and  when  executed  the  trust  company  loaned 
only  $32,000  to  Mr.  Shoemaker.  At  that  time 
the  latter  gave  the  mortgagee  his  demand 
note,  containing  the  following  provision: 

"It  is  further  agreed  that  the  securities  hereby 
pledged,  together  with  any  that  may  be  pledged 
hereafter,  shall  be  applicable  in  like  manner 
to  secure  the  payment  of  any  •  *  *  future 
obligations  of  the  undersigned  held  by  the  hold- 
ers of  this  obligation,  and  all  such  securities  in 
their  hands  shall  stand  as  one  general  continu- 
ing collateral  security  for  the  whole  of  said  ob- 
ligntions." 

August  6,  1912,  Mr.  Shoemaker  gave  to  the 
trust  company  a  bond  for  $150,000,  reciting 
that  whereas,  the  obligee  had  agreed  to  In- 
sure the  erection  and  completion,  free  of 
Ileus,  of  a  certain  building  on  Wayne  avenue, 
Philadelphia,  In  favor  of  the  holders  of  a 
mortgage  thereon,  the  obligor  agreed  to  In- 
demnify the  obligee  "of  and  from  all  loss, 
damage,  costs,  charges,  liability,  or  expense" 
caused  by  this  undertaking.  Thereupon  the 
trust  company  issued  its  policy  of  Insurance 
In  the  sum  of  $150,000  to  Ell  K.  Price  et  al., 
executors,  In  connection  with  a  mortgage  of 
Uke  amount  executed  by  Samuel  Shoemaker 
et  al.  The  building  was  not  completed  by 
Shoemaker,  and  mechanics'  liens  were  filed 
against  it  Suit  was  brought  upon  the  $150,- 
000  mortgage,  and  Judgment  recovered.  The 
property  was  sold  under  execution  on  this 
judgment,  but  the  sum  realized  was  $6,892.62 
short  of  the  amount  required  to  pay  the 
holders  of  the  mortgage  their  debt,  interest 
and  costs.  This  deficiency  was  paid  by  the 
trust  company  under  its  title  policy,  on  ac- 
count of  the  loss  sustained  by  the  mortgagees 
through  the  noncorapletion  of  the  building; 
in  addition,  the  company  was  obliged  to  de- 
posit with  a  referee  $16,000  to  meet  certain 
mechanics'  liens  filed  against  the  premises, 
should  such  liens  be  sustained  at  law  in  a 
proceeding  pending  to  test  their  validity. 

May  28, 1913,  Samuel  Shoemaker  gave  Elm- 
ma  O.  Bergdoll,  the  appellant,  hla  note  for 
$18,000.  This  Instrument  recited  that  Mr. 
Shoemaker  had  on  the  same  day  executed 
and  delivered  to  the  holder  thereof  a  bond 
and  mortgage  for  a  like  amount,  secured 
upon  the  property  at  Fifty-Second  street  and 
Wynnefleld  avenue,  being  the  same  premises 
covered  by  the  before-mentioned  $40,000 
mortgage.  The  note  contained  also  a  clause 
to  the  effect  Uiat  it  was  to  secure  past  and 
future  obligations.  The  $18,000  bond  and 
mortgage  was  duly  recorded  as  a  second  lien 
upon  the  property  In  question,  subject  to  the 
$40,000  mortgage.  At  tlie  date  of  the  execu- 
tion of  the  mortgage  to  Mrs.  Bergdoll,  and  at 
the  time  she  made  her  claim  against  the  fund 
in  controversy,  Mr.  Shoemaker  owed  her  at 
least  $18,000.  There  were  several  claimants 
on  the  fund;  but  the  contest  we  have  to  de- 


cide is  between  the  trast  company  and  Mrs. 
Bergdoll. 

The  former  contends  that,  on  the  facts  as 
we  have  recited  them,  the  $40,000  mortgage. 
In  accordance  with  the  agreement  executed 
at  the  time  of  the  original  $32,000  loan,  was 
executed  and  delivered,  not  only  as  collateral 
for  this  first  loan,  but  also  to  secure  payment 
of  any  "future  obligations"  of  Mr.  Shoemaker 
which  might  thereafter  be  held  by  the  mort- 
gagee; that  the  $150,000  bond  acc^ted  from 
Mr.  Shoemaker,  In  1912,  is  such  a  "future 
obligation";  that  therefore  the  trust  com- 
pany Is  entitled  to  recover  out  of  the  fund  In 
court  the  amount  which  this  latter  obligation 
has  and  will  cost  It  On  the  other  hand,  Mrs. 
Bergdoll  contends  that,  when  she  took  her 
mortgage  In  1913,  although  the  trust  com- 
pany then  held  the  $150,000  bond  executed 
by  Mr.  Shoemaker,  and  had  issued  its  policy 
of  title  Insurance  In  cminectlon  therewith, 
yet  at  that  date  Its  liability  on  such  policy 
was  merely  potential;  that  the  trust  com- 
pany never  paid  any  actual  losses  thereunder 
until  ISIay,  1914,  some  months  subsequent  to 
the  date  of  her  mortgage;  hence  that  she 
has  a  prior  Hen  and  Is  entitled  to  the  fund 
in  court.  The  learned  auditor  accepted  the 
view  of  the  trust  company,  and  made  his 
award  accordingly.  In  so  doing,  he  finds 
that  the  latter  is  entitled  to  the  sum  of  $6,- 
892.62,  with  Interest  from  May  14,  1914,  and 
to  the  Iwlance  of  the  fund,  should  the  liens 
upon  the  property  whose  completion  it  in- 
sured be  declared  valid;  but  he  adds  that,  if 
these  liens  are  not  sustained,  then  the  dis- 
tribution will  have  to  be  restated. 

[1-3]  The  questions  we  have  to  decide  are 
narrow,  but  very  nic&  They  may  be  reduced 
to  these:  (1)  When  the  trust  company,  in 
1912,  accepted  and  became  the  holder  of  Mr. 
Shoemaker's  $150,000  bond,  did  it,  by  issuing 
the  policy  of  title  Insurance  recited  therein, 
to  the  holders  of  the  mortgage  In  that  trans- 
action, bind  itself  in  effect  to  Mr.  Shoemaker 
and  his  then  present  mortgagees  to  advance 
to  the  latter,  on  the  former's  account,  such 
sums  of  money  as  might  be  necessary  to  in- 
demnify the  mortgagees  against  loss  by  rea- 
son of  noncompletlon  of  the  building  covered 
by  their  mortgage?  (2)  If  this  was  the  effect 
of  the  transaction  Just  referred  to,  then 
should  the  contract  made  in  1912,  when  the 
trust  company  accepted  the  $150,000  bond 
and  issued  its  title  policy,  be  treated  as  a 
supplement  to  the  original  agreement  of 
1909?  (3)  If,  as  a  matter  of  law.  It  should 
be  80  considered,  then,  as  against  Mrs.  Berg- 
doU's  mortgage  of  1913,  should  this  contract 
of  1912  be  given  the  same  effect  as  though 
its  terms  originally  had  been  expressly  in- 
corporated into  the  agreement  of  1909? 

We  think  all  the  propositions  Just  enumer- 
ated must  be  answered  in  the  aflirmative. 
The  bond  accepted  In  1912  was  an  obligation 
of  Mr.  Shoemaker,  the  original  mortgagor, 
which  recited  the  title  policy  issued  by  the 
trust  company  as  part  of  the  agreement  then 


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entered  Into;    hence  both  of  these  instru- 
ments  must  be  considered  In  deciding  as  to 
tbe  nature  of  that  agreement,  and,  when  so 
coasldered,  It  seems  plain  that  the  agree- 
ment In  question  formed  a  binding  contract 
on  tbe  part  of  the  trust  company,  if  called 
upon  so  to  do,  to  pay  on  Mr.  Shoemaker's  be- 
half any  losses  which  his  default  in  finishing 
the  building  described  In  the  bond  and  title 
policy   might  cause  to  the  parties  insured  by 
the  latter  instrument,  which,  in  effect,  was  a 
contract  to  make  future  advances.    For  these 
advances  Shoemaker  was  liable  to  the  trust 
company  on  the  $150,000  obligation,  to  se- 
cure vrlilch  the  latter  held  tbe  $40,000  mort- 
{tge  as  coUateraL    We  make  this  last  state- 
ment, as  the  agreement  of  1909  was  that  the 
mortgage  in  question  should  stand  as  coUat- 
erU,   not  only  for  Shoemaker's  $32,000  obli- 
gation, but  also  for  any  future  obligations  of 
the  debtor  which  might  come  into  the  mortga- 
gee's  hands.    This  contract  was  in  full  life 
when  the  trust  company  accepted  the  $150,- 
000    bond,   which  Instrument   fell   squarely 
within    the  definition  of  a  "future  obliga- 
tion";    and,  at  the  time  of  the  acceptance 
thereof,  the  company  agreed  In  connection 
therewith  to  make  the  advances  already  re- 
ferred, to.    Under  these  circumstances,  there 
"  no  reason  apparent  why,  after  1912,  this 
"sreenient  should  not  be  considered  Just  as 
oft  '^^^  between  the  parties  thereto,  and  all 
y^®**  dealing  with  the  property  covered  by 
j_    *4o,000  mortgage,  as  the  original  con- 
"**^  executed  In  1909  when  the  mortgage 
T&%  &rst  taken  as  collateral.    Had  the  terms 
q1  tbe  1912  agreement  been  originally  incor- 
porated into  the  contract  of  1900,  there  can 
De  no  question  as  to  their  effect,  for  It  Is 
DOW  established  In  Pennsylvania  that,  when 
a  contract  for  advances  or  the  assumption  of 
future  obligations  accompanies  a  mortgage, 
it  is  not  essential  to  its  validity  that  the  en- 
gagement governing  the  advance  be  placed 
upon  record  or  even  expressly  referred  to  In 
the  mortgage.    Moroney's  Appeal,  Infra.    It 
Is  also  established  that,  when  such  a  c(atract 
obligates  the  mortgagee  either  to  make  ad- 
vances or  assume  future  responsibilities  on 
behalf  of  tbe  mortgagor,  this  lends  a  suffl- 
dent  consideration  to  the  mortgage,  and  the 
lien  of  payments  made  under  such  an  agree- 
ment relates  back  to  the  date  of  the  mort- 
gage; furthermore,  this  is  true,  even  though 
the  advances  or  liquidation  of  assumed  re- 
■poDsiblUties  occur  after  the  date  of  a  snbse- 
<iuent,  or  junior,  incumbrance  placed  ui>on 
tbe  mortgaged  premises.    See  authorities,  in- 
fra. 

If,  under  an  arrangement  such  as  we  have 
before  us,  we  should  be  obliged  to  hold,  as 
contended  by  the  appeUant,  that  the  $40,000 
mortgage  would  have  no  lien  to  protect  the 
trust  company's  present  claim  imtll  the  date 
of  ttie  actual  payments  made  by  the  latter  on 
Its  title  policy,  it  would  be  practically  impos- 
sible for  such  corporations,  when  issuing  pol- 
101A^22 


ides  like  the  one  at  bar,  adequately  to  pro- 
tect themselves  against  loss  by  the  accept- 
ance of  mortgages  upon  real  estate  as  ctrilat- 
eral,  which  would  be  an  unfortunate  state  of 
affairs  for  both  real  estate  investors  and 
trust  oominnies.  We  are  convinced,  how- 
ever, that  neither  the  facts  of  this  case  nor 
the  applicable  principles  of  law  call  for.  or 
necessitate  such  a  ruling.  When  Mrs.  Berg- 
doll  negotiated  with  Mr.  Shoemaker  in  1913, 
she  knew  there  was  at  that  time  a  first  mort- 
gage of  $40,000  upon  the  proiierty  offered  as 
security.  She  also  had  actual  notice  that 
the  loan  made  at  the  date  of  this  mortgage 
was  only  $32,000— all  of  which  was  sufficient 
to  put  her  on  Inquiry  as  to  the  exact  status 
of  the  $40,000  Incumbrance,  to  which  she  in 
express  terms  made  her  $18,000  mortgage 
subject  Had  she  exercised  ordinary  care 
in  this  respect,  she  would  have  ascertained 
that,  in  addition  to  the  $32,000  actually  paid 
out  when  the  $40,000  mortgage  was  created, 
the  trust  company,  under  a  binding  supple- 
mental agreement,  entered  Into  when  accept- 
ing from  the  mortgagor  a  "future  obligation," 
had  agreed  to  make  advances  on  his  behalf. 
If  called  upon  so  to  do,  to  an  amount  more 
than  sufficient  to  cover  the  remaining  $8,000. 
Under  the  circumstances,  the  auditor  did  not 
err  In  holding  that,  as  between  Mrs.  Berg- 
doll  and  the  trust  company,  the  former's  in- 
cumbrance was  subject  in  all  respects  to  the 
$40,000  mortgage  held  by  the  latter,  and 
hence  that  the  trust  company  had  a  first  lien 
on  the  fund  for  distribution. 

For  discussion  of  the  general  principles  in- 
volved In  the  present  case,  reference  is  made 
to  the  following  authorities,  most  of  which 
were  dted  to  us  by  both  sides:  Lyle  v.  Da- 
comb,  5  Bin.  585;  Stewart  ▼.  Stocker,  1 
Watts,  135,  140;  Qarber  v.  Henry,  6  Watts, 
57;  Irwin  t.  Tabb,  17  Serg.  &  R.  418;  Ter- 
Hoven  v.  Kerns,  2  Pa.  96  (in  connection  with 
last  three  cases,  see  Moroney's  Appeal,  in- 
fra) ;  Parmentler  v.  Oillespie,  9  Pa.  86 ;  Mo- 
roney's Appeal,  24  Pa.  372;  Bank  of  Mont- 
gomery County's  Appeal,  36  Pa.  170;  Bank 
of  Commerce  Appeal,  44  Pa.  423 ;  McClure  v. 
Roman,  52  Pa.  458;  Parker  v.  Jacoby,  8 
Grant  Gas.  300;  Taylor  v.  Cornelius  et  al., 
60  Pa.  187,  196;  Kerr's  Appeal,  92  Pa.  236; 
Mitchell  V.  Coombs  et  al.,  96  Pa.  430 ;  Fara- 
bee  V.  McKerrihan,  172  Pa.  234,  242,  83  Aa 
583,  61  Am.  St  Rep.  734;  Neff's  EsUte,  185 
Pa.  96,  39  AtL  830 ;  Dahlem's  Estate,  175  Pa. 
444,  453,  84  Atl.  806;  MulUson's  Estate,  68 
Pa.  212,  215.  A  study  of  our  wriUngs  in  the 
atM>ve  cases  will  show  a  general  accord  with 
the  conclusions  here  reached:  and,  while 
there  may  appear  some  conflict  In  certain 
statements  to  be  found  In  the  various  opin- 
ions touching  the  general  subject  now  t>efore 
us,  yet,  when  the  development  of  the  law  is 
taken  into  account.  It  will  be  seen  that  these 
differences  are  not  materiaL 

[4]  We  have  not  felt  called  upon  to  pass 
seimrately  on  the  several  spedflcatloos  of 


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101  ATLANTIC  RBPORTBB 


ya. 


«rror,  for  all  of  them  are  defectlTe  In  form ; 
In  each  Instance  they  assert  the  court  below 
«rred  In  dismissing  a  certain  exception  to  a 
-designated  finding  or  conclusion  of  the  audi- 
tor, but  in  no  instance  do  they  contain — in 
totidem  verbis — the  court's  action  on  the  par- 
-dcular  exception,  nor  do  they  show  where 
the  matter  referred  to  is  to  be  found  In  the 
paper  books  or  the  appendix.  See  Prenatt  t. 
Messenger  Printing  Co.,  241  Pa.  267,  269,  270, 
88  AU.  439;  Markleton  Hotel  Ca  v.  Connells- 
vlUe  &  State  Line  Hallway  Co.,  242  Pa.  569, 
572,  673,  89  Atl.  703;  Pfafit  v.  Bacon,  249  Pa. 
297,  300,  95  AtL  71.  A  proper  form  for  audi 
assignments  will  be  found  in  the  first  of 
these  cases. 
The  decree  is  affirmed. 


(2ST  Pa.192) 

KIESTEIN  T.  PHILADELPHIA  4  B. 
BY.  CO. 

{Supreme  Court  of  Pennsylvania.     March   19, 
1917.) 

Railboads  <S=>222(5)  —  Obstruction  of 
Cbossino  —  Delat  or  Fibs  ISnoink  —  Non- 
Suit. 
In  an  action  against  a  railroad  for  damages 
for  injury  in  consequence  of  its  obstruction  of 
a  grade  crossing  by  its  trains  so  as  to  delay  a 
fire  engine  in  reacniug  plaintiffs  burning  build- 
ing where  it  did  not  appear  that  those  in  charge 
x)t  the  train  knew  or  ought  to  have  known  of 
the  fire  when  they  were  using  or  about  to  use 
the  crossing,  or  that  until  the  gates  were  raised 
it  was  reasonably  practicable  lor  defendant  to 
have  cleared  the  crossing  and  enabled  the  engine 
<o  sooner  reach  the  fire,  a  compulsory  nonsuit 
was  properly  ordered. 

[Ed.  Note.— For  other  cases,  ae«  Railroads, 
Cent.  Dig.  {  7^1.] 

Appeal  from  Court  of  Common  Pleas, 
Philadelphia  County. 

Trespass  by  Herman  Kirstein  against  the 
Philadelphia  &  Beading  Railway  Company 
to  recover  damages  for  injury  to  plaintlll's 
-buUdlngs  caused  by  fire.  From  a  final  order 
refusing  to  take  off  a  compulsory  nonsuit, 
plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TEEZAT,  POTTER,  STEWABT,  and  FRA- 
ZEB,  JJ. 

Frederick  S.  Drake,  Samuel  L.  Howell,  and 
John  Weaver,  all  of  Philadelphia,  for  appel- 
lant. Wm.  Clarke  Mason,  of  Philadelphia, 
for  appellee. 

STEWABT,  J.  The  plaintltt  was  the  own- 
«r  of  a  wheelwright  shop  located  about  half 
.a  square  north  of  a  point  where  the  tracks  of 
the  defendant  company  cross  at  grade  Frank- 
ford  avenue  in  the  city  of  Philadelphia. 
About  12:45  p.  m.,  on  Saturday,  September 
18,  1909,  a  fire  broke  out  underneath  a  shed 
In  the  yard  adjoining  the  shop.  The  fire  de- 
partment promptly  responded  to  an  alarm 
sent  it,  and  dispatched  several  fire  engines 
•to  the  scene  of  the  fire.  When  the  engine's 
reached  the  railroad  cros.sing,  a  half  square 
-from  the  fire,  their  further  progress  was  ob- 


structed by  the  gates  to  the  crossing  which 
were  then  closed.  A  train  of  empty  cars 
was  then  approaching  the  crossing  from  the 
east,  and  within  about  400  feet  of  It  At  the 
same  time  another  train  of  empty  cars  was 
approaching  from  the  west,  but  at  somewhat 
greater  distance.  The  gates  were  closed  to 
give  the  trains  the  exclusive  right  of  way 
over  the  crossing,  and  they  temained  closed 
until  both  trains  had  cleared,  a  period  of 
from  10  to  13  minutes,  during  which  time  the 
fire  engines  were  prevented  from  proceeding 
to  the  fire.  The  plaintiff's  contention  was 
that  this  delay  was  the  result  of  the  defend- 
ant's negligence,  and  that  it  increased  mate- 
rially his  loss  from  the  fire.  The  action, 
charging  negligence,  was  brought  to  recover 
compen.SBtion.  A  nonsuit  was  directed,  and 
from  the  refusal  of  the  court  to  take  it  off 
we  have  this  appeal. 

If  the  evidence  submitted  would  have  sap- 
ported  a  finding  of  failure  on  part  of  the  de- 
fendant's employes  to  perform  a  manifest 
duty  important  to  the  plaintiff  by  way  of  pre- 
venting the  injury  which  he  claims  to  have 
sustained,  the  case  should  have  been  sub- 
mitted to  the  Jury ;  otherwise  the  court  was 
right  in  directing  a  nonsuit  By  the  term 
"manifest  duty"  we  mean  a  duty  which  It 
would  be  willfulness  or  wantonness  to  disre- 
gard, as  distinguished  from  a  duty  the  non- 
observance  of  which  is  to  be  referred  to  In- 
attention or  thoughtlessness.  The  former  Is 
always  predicated  on  purpose  or  design,  the 
latter  never.  If  the  employes  of  the  defend- 
ant company  knew,  when  their  several  trains 
were  approaching  the  crossing,  that  a  fire 
was  endangering  or  destroying  the  plaintiff's 
property  but  a  half  square  distant,  and  that 
the  use  of  the  crossing  by  the  railroad  com- 
pany for  Its  own  purpose  would  prevent  the 
fire  engines  from  reaching  the  scene  of  the 
fire  and  rendering  timely  service  in  extin- 
guishing the  fire,  it  would  have  been  a  mani- 
fest duty  resting  on  them  to  do  whatever  was 
reasonably  practicable  to  remove  any  ob- 
struction to  the  Immediate  crossing  of  the 
fire  engines.  When  it  is  sought  to  charge  a 
railroad  company  with  negligence  for  allow- 
ing such  obstruction  as  here  occurred,  it  ia 
first  of  all  essential  that  It  be  made  to 
appear  that  those  in  Charge  of  the  trains, 
who  were  directly  responsible  for  their  con- 
trol, knew  or  ought  to  have  known  when 
they  were  employing  or  about  to  employ  the 
crossing  with  their  trains  of  the  unforeseen 
conditions  existing  which  made  such  employ- 
ment, or  use  of  the  crossing  likely  to  cause 
the  injury  for  which  recovery  Is  sought  We 
see  nothing  in  the  evidence  Indicating  even  In 
remote  way  that  any  of  the  defendant's  em- 
ployes knew  of  the  existence  of  this  partlcn- 
lar  fire.  It  does  not  appear  that  it  was  at 
any  time  within  their  view.  They  saw  that 
the  gates  were  closed  as  they  passed  alonK 
on  the  tracks,  and  they  saw  the  fire  engines 
standing  there  awaiting  their  removal,  and 


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BABATAK  v.  KEED 


33» 


they  may  or  may  not  have  heard  the  call  of 
the  several  bystanders  who  testified  that 
they  called,  "Cut  the  train !"  bnt  this  comes 
very  far  short  of  showing  such  knowledge  of 
the  situation  as  would  charge  them  with  a 
manifest  duty  to  do  something  out  of  the 
nsual  to  meet  an  emergency  that  conld  not 
have  been  foreseen,  and  about  which  they 
could  at  best  only  conjecture.  In  what  we 
have  said  we  include  as  well  the  gateman  or 
flagman.  It  does  not  appear  that  be  saw,  or 
could  have  seen,  the  fire  from  where  he  was 
placed.  One  witness  testified  that  having 
himself  discovered  the  fire  he  told  the  gate- 
man  of  the  fact ;  Just  what  be  said  does  not 
appear,  but  it  was  at  a  time  when  the  gates 
were  already  closed.  No  one  testified  that 
the  closing  of  the  gates  occnrred  after  the 
fact  of  the  fire  had  become  known,  or  that 
they  remained  closed  unduly  after  the  trains 
had  cleared  the  crossing. 

Again,  it  is  quite  as  essential  to  a  recovery 
that  the  plaintiff  show  that  be  sustained  loss 
by  and  In  consequence  of  what  the  party 
charged  did,  or  failed  to  do.  The  detention 
of  the  fire  engines  was  from  10  to  13  minutes. 
There  is  not  a  suggestion  in  the  testimony 
coming  from  any  one  that  from  the  time  the 
gates  were  closed  until  they  were  raised  or 
lifted  It  was  reasonably  practicable  for  the 
defendant  to  adopt  other  methods  than  It  did 
of  clearing  the  crossing  that  would  have  en- 
abled the  fire  engines  to  sooner  reach  the  fire. 
Certainly  a  Jury  is  not  to  be  allowed  to  as- 
sume the  affirmative  of  such  proiwsltlon  In 
the  absence  of  evidence.  Apart  from  othei 
considerations,  except  as  another  method  ex- 
isted, reasonably  practicable,  of  clearing  the 
tracks  so  as  to  admit  of  the  crossing  of  the 
fire  engines  with  shorter  delay,  no  liability 
could  rest  on  defendant 

We  see  no  merit  in  the  appeal.  The  Judg- 
ment is  affirmed, 

(S7  Pa.  KM) 

BABAYAN  v.  BEED  et  al. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

1.  Mastkb  and  Servant  «=>40(2)— Bbkaoh  of 
cohtbact— mrnoation— evidiiwcb. 

In  an  action  for  breacn  of  a  contract  when^ 
by  plaintiff  had  sold  lus  cigarette  business  to 
defendants  and  was  to  be  employed  by  defend- 
ants at  a  weekly  salary  for  a  term  of  years, 
it  was  competent  for  defendants  to  sliow  in 
mitigation  of  damages  tliat  plaintiff  might  by 
reasonable  effort  have  secured  other  employ- 
ment in  the  same  locality. 

[Eld.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  |  48.] 

2.  Evidence  ®=3547  —  Exfxbt  TcsTiiconT  — 
FoBu  OP  Question. 

Questions  to  an  expert  in  the  cigarette  busi- 
ness as  to  whether  an  expert  cigarette  maker, 
blender,  and  buyer  commanded  a  big  salary  and 
was  ill  demand  in  tbe  trade  were  bad  in  form 
and  indeSttito  as  to  time,  place,  and  amount,  so 
that  the  court  could  not  say  that  their  exclu- 
sion was  error. 

[Dd.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  J  2364.] 


8.  WiTNESSEa  *=»237(1)  —  Bxawnation  — 

Question  Absumiho  Fact. 
A  question  assuming  tliat  plaintiff  termi- 
nated the  contract  by  leaving  defendants'  em- 
ployment was  properly  excluded,  where  sudi 
tact  was  neither  conceded  by  plaintiff  nor  found 
by  the  jury. 

[E^.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  |  829.] 

4.  Contbacts  «=>852(6)— Rescission  —  Ques- 
tion FOB  JUBY. 

Whether  such  contract  had  been  rescinded 
by  mutual  consent  held,  on  the  evidence,  a  ques- 
tion for  the  juiy. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  {  1200.] 

5.  Conxbactb  «s>348(7)— AonoN  fob  Bbkaoh 

— Evidence. 
In  an  action  for  breach  of  contract  whereby 
plaintiff  sold  bis  cigarette  bnsinesg  to  defend- 
ants and  was  to  be  employed  by  defendants, 
ttte  admission  of  plaintiff's  testimony  as  to  what 
he  told  defendants  as  to  his  former  earnings 
in  the  business  was  not  error. 

[Ed.  Note. — For  other  cases,  see  Contracts, 
Cent  Dig.  |§  1096,  1795,  1817.] 

6.  Damages  9=»120(2}— Bbeacr  of  Contract. 

In  such  action  tne  amount  of  plaintiff's 
weekly  salary  under  tbe  contract  was  a  question 
for  the  jury  to  consider  in  arriving  at  his  dam- 
ages. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent  Dig.  H  292,  286,  297.] 

7.  Dauaoes  9=>122  —  Delat  —  Additionai. 
Damaoeb. 

Plaintiff  in  snch  case  being  entitled  to  bis 
damages,  if  at  all,  as  of  the  date  of  the  breacli, 
it  was  not  error  to  permit  a  jury  in  their  dis- 
cretion to  give  additionai  damages  for  delay 
not  exceeding  6  per  cent,  per  annum. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  SS  309-319.] 

8.  Tbial  «=3253(10)  —  iNBTBUcnoHB  —  Re- 
quests—Den ial. 

In  such  case  defendants'  request  that  plain- 
tiff could  not  recover  if  the  Jury  found  that  on 
his  demand  defendants  tendered  him  a  return 
of  tbe  cigarette  brand  claimed,  or  if  he  had 
agreed  with  defendants  to  cancel  the  contract 
were  properly  declined,  aa  ignoring  plaintiff's 
daim  of  a  balance  due  him  for  merchandise  as 
to  which  tbe  evidence  was  conflicting. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  (t  621,  6S.1 

9.  Tbiai,  «=>1  39(4)— Requests  fob  Dibecteiv 
Vekdict— Denial. 

Where  a  plaintiff's  daim  consists  of  sepa- 
rate branches  as  to  each  of  which  the  evidence 
is  conflicting,  defendant's  request  for  a  general 
verdict  if  the  Jury  find  the  facts  for  him  as  to 
one  branch  of  the  case  cannot  Im  granted. 

Appeal  from  Court  dt  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  breach  of  contract  by  Ma- 
dlrios  Babayan  against  John  C.  Reed  and 
others.  Verdict  for  plaintiff  for  |3,625,  and 
Judgment  tbere<m,  and  defendants  apj^eal. 
Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, MOSOHZISKER,  FRAZER,  and  WAI/- 
LING,  JJ. 

Maurice  Bower  Saul,  Frank  P.  Prichard, 
and  John  O.  Johnson,  all  of  Philadelphia, 
for  appellants.  Paul  Reilly,  of  Philadelphia. 
for  appdlee. 


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101  ATLANTIC  REPORTER 


(Pa. 


WALLING,  J.  TWs  Is  an  action  for  dam- 
ages for  an  alleged  breach  of  contract  rela^' 
Ing  to  the  manufacture,  etc,  of  cigarettes. 
In  the  early  part  of  the  year  1913  the  plain- 
tiff was  engaged  In  a  small  way  in  the  manu- 
facture and  sale  of  cigarettes,  his  place  of 
business  being  on  Fifty-Second  street,  Phila- 
delphia. In  the  course  of  his  business  plain- 
tiff became  acquainted  with  defendants,  who 
were  engaged,  Inter  alia.  In  the  banking 
business  In  said  city.  Plaintiff  seems  to  have 
had  quite  an  extended  ezperlsioe  In  the  to- 
bacco and  cigarette  business,  but  was  with- 
out capital  to  enlarge  the  same.  His  ac- 
qnalntanoe  with  defendants  soon  became  one 
of  mutual  confidence,  as  a  result  of  which 
they  agreed,  in  substance,  to  take  over  and 
finance  said  cigarette  business  and  to  pur- 
diase  at  least  a  part  of  plaintlfrs  property 
and  effects  connected  therewith.  Including 
the  trade-name  or  brand  "Deran,"  and  pay 
him  for  such  prtqierty ;  also  to  pay  plaintiff 
for  five  years  a  weeltly  salary  of  f50,  and. 
In  case  he  devoted  Ms  entire  time  to  tlie  busi- 
ness, then  the  ftirther  sum  of  15  per  cent. 
of  the  net  profits.  The  business  was  to  be 
conducted  In  plaintlflTs  name,  but  to  belong 
solely  to  defendants,  and  he  was  not  to  use 
their  credit  or  make  any  purchase  without 
their  written  authority.  The  contract,  so 
far  as  reduced  to  writing,  was  executed  by 
the  parties  May  6,  1913.  However,  some 
parts  thereof  remained  In  parol.  Pursuant 
to  this  arrangement  a  factory  and  place 
of  business  were  established  and  opened 
at  1028  Caiestnut  street,  Philadelphia,  ro 
which  place  plaintiff  removed  his  business 
and  bad  bis  Internal  revenue  license  trans- 
ferred. In  the  establishment  of  the  new  busi- 
ness, incladlng  the  purchase  of  new  ma- 
chinery, etc.,  and  a  large  amount  of  tobacco, 
defendants  expended  about  $24,000.  They 
knew  nothing  about  the  dgar^te  business  or 
the  purchase  of  tobacco  therefor,  except 
plaintiff's  word  and  the  sampling  of  his  cig- 
arettes. In  the  agreement,  drawn  by  one  of 
the  defendants  and  signed  by  all  the  parties 
plaintiff  is  represented  as  honest  and  an  ex- 
pert cigarette  blender  and  maker  and  tobacco 
buyer. 

The  business  seemed  to  develop  unfavor- 
ably, and  friction  soon  arose  l)etween  the 
parties,  and  defendants  became  dissatisfied 
to  such  an  extent  that  on  July  8,  1013,  they 
wrote  plaintiff  a  letter  declaring  the  contract 
canceled  and  at  an  end,  because  of  cer- 
tain alleged  violations  thereof  by  plaintiff; 
and  same  day,  on  his  declining  to  surrender 
to  them  his  key,  changed  the  locks  on  the 
door  of  their  said  place  of  business  and  ex- 
cluded plaintiff  therefrom.  He  was  paid  by 
them  $50  a  week  from  May  3,  to  July  12, 
1913,  and  also  $610  on  account  of  the  prop- 
erty. Later  plaintiff  brought  this  suit,  where- 
in he  claimed  $757.01,  as  balance  for  mer- 
chandise, also  claimed  $2,000  for  his  trade- 
name "Deran,"  and  large  amounts  for  loss 


of  earnings  and  profits  resulting  from  de- 
fendants' alleged  breach  of  contract  The  de- 
fendants denied  plaintiff's  allegations,  and 
set  up  a  counterclaim  for  a  large  amount  for 
alleged  breeches  of  contract  by  plaintiff,  all 
of  which  were  denied  by  him.  The  case  was 
stubbornly  contested,  and  turned  largely  on 
questions  of  fact  which  were  submitted  to 
the  Jury,  who  gave  plaintiff  a  verdict  for 
$3,625.  Defendants  abandoned  their  motion 
for  a  new  trial,  and  on  this  appeal  assigned 
as  errors  certain  portions  of  the  charge  of 
the  learned  trial  judge,  and  also  rulings  on 
offers  of  evidence. 

[1,2]  Defendants  asked  of  one  of  their 
vrltnesses,  who  had  qualified  as  an  exi)ert  in 
the  business,  the  following  questions : 

"Q.  Does  an  expert  cigarette  maker  and  blend- 
er and  buyer  command  a  big  salary? 

"Q.  Is  an  apert  cigarette  maker,  blender 
and  buyer  in  demand  in  tlie  trade? 

"Q.  Has  such  an  expert  any  dliBcaltjr  in  ob- 
taining employment?" 

To  ea<^  a  general  objection  was  made, 
which  was  sustained  by  the  court.  No  offer 
was  made  and  no  reason  given  for  the  objec- 
tions. It  was  competent  for  defendants  to 
show  in  mitigation  of  damages  that  plaintiff 
might  by  reasonable  effort  have  secured  em- 
ployment elsewhere  In  the  same  locality. 
Emery  v.  Steckel,  12fl  Pa.  171,  17  Ati.  601,  12 
Am.  St  Bep.  857.  But  the  above  questions 
are  bad  in  form  and  Indefinite  In  substance, 
especially  so  as  to  time,  place  and  amount; 
and  we  cannot  say  that  their  exclusion  was 
error. 

[3]  The  jury  found  that  plaintiff  had  not 
broken  his  contract  and  therefore  whether 
defendants  got  a  trade-name  for  their  ciga- 
rettes was  Immaterial.  The  question  embrac- 
ed In  the  sixth  assignment  of  error  assumes 
that  plaintiff  terminated  his  contract  by 
leaving  defendant's  employ,  a  statement  nei- 
ther conceded  by  him  nor  found  by  the  jury, 
hence  its  exclusion  was  Justified,  and.  In  vlevy 
of  the  verdict  the  amount  defendants  ex- 
pended after  plaintiff  ceased  to  be  in  their 
employ  was  ImmaterlaL 

[4]  The  allegation  that  the  contract  was 
canceled  by  reason  of  a  certain  conversation 
had  about  June  25,  1913,  between  plaintiff 
and  defendant  Starr  cannot  be  sustained  un- 
der the  facts  of  the  case.  Mr.  Starr's  testi- 
mony as  to  that  is: 

"Q.  Bepeat  again  what  took  place?  A.  He 
was  vet7  angry  because  I  would  not  pay  him  nny 
money,  and  he  told  us  unless  we  paid  him  this 
money  he  would  get  an  injunction  and  prevent 
us  from  using  the  brand  and  he  would  cancel 
the  contract.  I  told  him  that  was  satisfactory 
to  tne.  He  said  then  he  was  going  out  to  see 
his  lawyer,  and  he  started  out  the  door  and 
went  down  the  steps,  and  that  is  the  last  I  saw 
of  him  that  day." 

But  that  did  not  terminate  the  contract 
especially  in  view  of  the  fact  that  plaintiff 
kept  at  work  until  Jtily  8th,  and  that  no 
such  claim  is  set  up  In  the  letter  of  that 
date,  or  in  the  pleadings. 

[5]  We  cannot  say  that  the  admission  of 
plaintifTs  testimony  as  to  wiiat  he  told  de- 


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341 


fendants  aa  to  his  earnings  and  profits  in  bis 
Fifty-Second  street  business,  was  error.  It 
was  part  of  the  negotiations  leading  up  to 
the  contract,  and  defendants  offered  testi- 
mony along  the  same  line ;  and  besides  nei- 
ther party  claims  that  the  entire  contract 
was  ever  reduced  to  writing,  and  the  court 
did  not  submit  to  the  Jury  plalntllTs  claim 
for  loss  of  profits  either  in  the  old  or  new 
business. 

[I]  Plalntltrs  suit  was  for  a  breach  of  the 
contract,  and  his  damage  was  the  loss  be 
sustained  thereby;  nevertheless  the  amount 
of  his  weekly  salary  under  the  contract  was 
a  matter  for  the  Jury  to  consider  in  arriv- 
ing at  the  damages. 

[7]  Plaintiff  was  entitled  to  his  damages. 
If  at  all,  as  of  the  date  of  the  breach ;  and 
It  was  not  error  to  Instruct  the  Jury  that  they 
might  In  their  discretion  glre  additional  dam- 
ages for  delay,  not  exceeding  6  per  cent  per 
annum. 

[I]  Defendants'  second  request  was  in  ef- 
tKt  that  plaintiff  could  not  recover  if  the 
Jury  found  that  on  his  demand  defendants 
tendered  him  a  return  of  the  brand  "Deran." 
And  their  third  request  was: 

"If  the  jury  find  that  the  plaintiff  agreed 
with  the  defendants  to  cancel  the  contract,  the 
plaintiff  is  not  entitled  to  recover." 

[I]  Both  of  these  requests  were  properly 
declined,  as  they  ignore  plalntifTs  claim  of 
a  balance  due  him  for  the  mercbandise,  and 
as  to  that  the  evidence  waa  conflicting. 
Where  a  plaintiff's  claim  consists  of  separate 
brandhes,  as  to  each  of  which  the  evidence 
is  conflicting,  a  request  by  defendant  for 
a  general  verdict  in  his  favor.  In  case  the 
Jury  find  the  facts  for  him  as  to  one  brandi 
of  the  case,  cannot  be  granted.  And,  as 
above  stated,  the  evldmce  would  not  sustain 
a  finding  that  tbe  contract  in  question  bad 
been  canceled  by  agreement  of  the  parties. 
We  find  no  reversible  error  In  the  record. 

n>e  Judgment  Is  afBrmed. 


(257  Pa.  104) 

JACKSON  «t  al.  v.  M:;eRS. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

t  Taxation  «=»85&— iNHKBrrAwcit  Tax— Na- 

TOBK. 

The  collateral  Inheritance  tax  is  not  levied 
upon  an  inheritance  or  legacy  but  upon  the  es- 
tate o(  tbe  decedent,  and  only  the  estate  remain- 
ing after  the  payment  of  such  tax  passes  to  the 
heir  or  devisee. 

rEd.  Note.— For   other  cases,   see   Taxation, 
Cent  Dig.  {  1673.] 

2.   COUPBOMISK  AKD  SETTLEMENT  9=al2  —  HST- 

JECT — Sale  ot  Interest  in  Land  —  Con- 

STBUCnON  ov  Contbact— Masestablb  Ti- 

tl»-Tax. 

A  contract  whereby  the  guardian  of  minors 

paving  an  interest  in  a  decedent's  estate  agreed 

in  settlement  of  litigation  to  sell  to  other  heirs 

the  interest  of  such  minors  for  cash,  without 

any  deduction  whatever,  and  to  give  a  fee-slm- 

Ple  title,  good  and  marketable,  contemplated  a 

•ale  of  the  minors'  interest  after  the  payment 


of  a  collateral  inheritance  tax;  that  not  being 
a  lien  or  incumbrance  within  the  terms  of  the 
contract. 

[Ed.  Note.— For  other  cases,  see  Compromise 
and  Settlement  Cent.  Dig.  Si  54-74.] 
3.  Taxation  «=3890  —  Sale  of  Intebest  in 

Land — Payment  to  Pebfect  Title— Ebcov- 

KBY    AOAINST    PuBCHASEB. 

In  such  case,  where  the  purchaser  in  order 
to  perfect  his  title  was  compelled  to  pay  the 
collateral  Inheritance  tax  on  the  vendor's  in- 
terest in  the  estate  of  a  decedent  he  could  not 
recover  the  amount  from  the  guardian  of  the 
minor  grantors. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  {  1711.] 

Appeal  from  Court  of  CommoB  Pleas,  Phll- 
adelphia  County. 

Assumpsit  by  Joseph  A.  Jackson  and  oth- 
ers against  Arthur  J.  Myers  for  the  amount 
of  a  collateral  inheritance  tax  paid  by  plain- 
tiff upon  a  decedent's  real  estate.  Judgment 
for  plaintiffs  for  want  of  a  suifldent  affidavit 
of  defense,  and  defendant  appeals.  Reversed, 
with  procedendo. 

Argued  before  BROWN,  C.  J.,  and  MBS- 
TRBZAT,  POTTER,  STEWART,  and  FRA- 
ZER,  JJ. 

James  W.  Laws,  of  Philadelphia,  for  ap- 
pellant Albert  T.  Bauerle^  John  G.  Kaufman, 
and  V.  Ollpln  Robinson,  all  of  Philadelphia, 
for  appellees. 

MESTREZAT,  J.  This  Is  a  rule  for  Judg- 
ment for  want  of  a  sufildent  affidavit  of  de- 
fense. The  rule  was  made  absolute,  and  the 
defendant  has  appealed. 

George  W.  Jackson  died  intestate,  iininai>- 
ricd,  and  without  Issue,  leaving  to  survive 
him  Joseph  A,  Jackson,  a  half-brother,  Bes- 
sie A.  Jackson  Curtis,  a  half-sister,  and  Jo- 
seph Jackson  Restein  and  James  Restein, 
sons  of  a  deceased  half-sister,  who  are  the 
plaintiffs  in  this  action.  He  also  left  surviv- 
ing him  two  nieces,  Lillian  M.  Jackson  and 
Ariel  K.  Jackson,  minor  children  of  a  de- 
ceased brother  of  the  whole  blood,  Daniel 
W.  Jackson,  and  their  guardian,  Arthur  J. 
Myers,  is  the  defendant  Prior  to  the  Institu- 
tion of  this  suit  the  parties  had  been  for 
some  time  Involved  In  litigation,  and  In  or- 
der to  effect  a  compromise  and  settle  tbe 
differences  between  them  they  entered  into  a 
contract  by  which  the  guardian  of  the  two 
minor  children,  tbe  defendant  in  this  action, 
agreed,  subject  to  tbe  approval  of  the  or- 
phans' court  to  sell  to  the  plaintiffs,  who 
agreed  to  buy,  "all  tbe  right  title,  and  In- 
terest of  the  said  minors  of,  In,  and  to  tbe 
estate  of  George  W.  Jackson,  deceased,  real 
and  personal,  for  the  sum  of  $40,000  in  cash 
without  any  deduction  whatever,  •  •  • 
title  to  be  In  fee  simple,  good  and  market- 
able, and  such  as  will  be  Insured  by  any 
reputable  trust  company,  subject  only  to  such 
Incumbrances  as  appear  by"  two  bills  In  equi- 
ty filed  In  the  court  of  common  pleas  of  Phil- 
adelphia county,  and  two  ground  rents.  The 
sale  was  of  an  Interest  In  both  real  and  per- 


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101  ATLANTIO  RBPORTBB 


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aonal  property.  The  gaardlan  applied  to  the 
orphans'  court  for  leave  to  make  sale  of 
his  wards'  Interest  la  the  real  and  personal 
estate  of  George  W.  Jackson,  deceased,  upon 
the  terms  contained  in  the  agreement,  and, 
the  court  being  of  the  opinion  that  the  sale 
of  the  minors'  interest  for  the  snm  of  $40,000 
was  to  their  advantage  a  decree  was  entered 
approTlng  the  report  of  the  examiner  and 
master  recommending  that  the  guardian  be 
authorized  and  empowered  to  sell  the  in- 
terest of  his  wards  in  the  property.  The  col- 
lateral inheritance  tax  upon  the  estate  of 
George  W.  Jackson,  deceased,  "was  not  paid 
at  the  time  the  settlement  was  made,  and  the 
guardian  refused  to  i>ay  It,  claiming  that,  un- 
der the  agreement  and  the  order  of  the  or- 
phans' court  authorizing  the  sale,  he  was 
not  required  to  pay  the  tax.  The  plaintiffs 
contended  that  the  guardian  should  pay  the 
tax,  that  it  was  a  lien  upon  the  Interest  of 
the  minors  In  the  estate  which  the  plaintiffs 
had  purchased,  and  that,  under  the  terms 
of  the  agreement,  the  defendant  was  requir- 
ed to  pay  IL  The  plaintiffs  having  previous- 
ly agreed  to  sell  the  property  to  another  pur- 
chaser, and  in  order  to  avoid  liability  for 
breach  of  their  contract,  accepted  the  deed 
from  the  guardian  and  paid  under  protest 
the  sum  of  $40,000  without  deducting  the 
tax.  In  a  subsequent  partition  proceeding 
in  the  estate  of  George  W.  Jackson,  deceas- 
ed, some  real  estate  was  sold,  and  from  the 
proceeds  the  commonwealth  collected  the 
collateral  inheritance  tax;  the  amount  due 
upon  the  share  of  the  estate  conveyed  to 
the  plaintiffs  being  |2,085.2L  This  suit  was 
instituted  by  the  plaintiffs  to  recover  this 
sum. 

The  facts  are  set  out  in  detail  in  the 
statement  and  affidavit  of  defense.  The  sin- 
gle question  involved  Is  whether  under  the 
contract  of  sale  the  plaintiffs  or  the  de- 
fendant should  pay  the  collateral  inheritance 
tax  on  that  part  of  the  estate  of  George  W. 
Jackson,  deceased,  in  which  the  defendant's 
wards  had  an  interest,  which  was  sold  by 
the  defendant  to  the  plaintiffs.  The  plain- 
tiffs claim  that  the  tax  was  a  debt  due  from 
the  defendant's  wards,  heirs  of  the  decedent, 
and  that  it  was  a  lien  on  the  estate  of  the 
decedent  which,  under  the  terms  of  the  agree- 
ment, the  defendant  was  required  to  sat- 
isfy and  remove,  and  the  plaintiffs,  having 
been  compelled  to  pay  the  tax  in  order  to 
convey  the  property  unincumbered  to  a  pur- 
chaser, are  entitled  to  be  reimbursed  for  the 
amount  of  the  tax  paid  by  them.  The  de- 
fendant denies  the  right  of  the  plaintiffs  to 
recover,  on  the  ground  that  he  sold  to  the 
plaintiffs  and  conveyed  only  the  right,  title, 
and  interest  of  the  minors  in  the  estate  of 
George  W.  Jackson,  deceased,  for  the  net 
sum  stipulated,  and  that  this  Interest  was 
limited  to  such  property  as  remained  after 
the  collateral  inheritance  tax  was  paid  upon 
the  estate.  The  learned  court  below  held 
that  the  defendant  was  liable  for  the  tax. 


Inasmuch  as  the  agreement  to  sell  stipulated 
in  terms  that  the  title  should  be  good  and 
marketable  and  such  as  would  be  insured 
by  any  reputable  trust  company,  subject  only 
to  such  tDcnmbrances  as  were  specifically 
excepted  in  the  agreement. 

[1]  Tbe  act  of  assembly  imposing  the  pay- 
ment of  a  collateral  inheritance  tax  provides 
that  "all  estates  •  •  •  passing  from  any 
person,  who  may  die  seised  or  possessed  of 
such  estates  [to  collateral  heirs]  •  •  • 
shall  be  and  they  are  hereby  made  subject  to 
a  tax  of  $5  on  every  $100  of  the  dear  value 
of  such  estate  or  estates."  Hie  executors 
and  administrators  and  their  sureties  are 
only  discharged  from  liability  for  the  tax 
with  which  they  are  charged  when  they  have 
paid  It,  and  the  tax  is  made  a  Uen  on  the  es- 
tate until  it  is  settled  and  satisfied.  The 
register  of  wills  is  made  the  agent  of  the 
commonwealth  for  the  collection  of  the  tax, 
and  he  is  authorized  to  enforce  payment  of 
a  collateral  Inheritance  tax  against  real  or 
personal  property  by  proceedings  in  the  or- 
phans' court 

It  will  be  observed  that  the  statute  im- 
poses the  tax  on  the  estate  of  the  decedent. 
It  becomes  a  lien  and  is  fastened  upon  the 
estate  from  the  moment  of  the  decedent's 
death,  and  must  be  dls<diarged  by  payment 
before  the  estate  passes  to  the  ooUateral 
heir.  It  Is  levied  on  the  estate  in  the  bands 
of  the  personal  representative  who,  with  hla 
sureties,  is  made  liable  for  its  payment.  "Bm 
state  becomes  a  preferred  benefldaiy  under 
the  act  imposing  the  tax,  and  it  is  «ititled 
to  its  share  of  the  estate  before  the  claims 
of  heirs  or  devisees  can  be  recognized  or  sat- 
isfied. The  latter  take  only  such  part  of  the 
decedent's  estate  as  remains  after  the  pay- 
ment of  the  tax  which  is  not  levied  upon  the 
Inheritance  or  the  legacy,  but,  as  already 
observed,  upon  the  estate  of  the  decedent, 
What  passes  to  the  heir  or  devisee,  and  to 
which  he  acquires  title,  is  the  portion  of  the 
estate  remaining  after  the  paymrait  and  sat- 
isfaction of  the  collateral  tax. 

This  interpretation  of  the  statute  Imposing 
the  collateral  inheritance  tax  is  sustained  by 
the  decisions  of  this  court.-  In  Strode  ▼. 
Commonwealth,  62  Fa.  181,  a  leading  case 
on  the  subject,  the  question  was  whether 
that  part  of  a  decedent's  estate  passing  to 
collaterals,  which  consisted  of  bonds  of  the 
United  States  that  were  exempt  by  law  from 
state  taxation,  was  liable  to  collateral  in- 
heritance tax.  We  held  that  the  collateral 
inheritance  tax  is  not  levied  on  a  spedflc 
article,  but  on  the  estate  of  the  decedent, 
and  that  therefore  it  is  not  a  tax  upon  the 
bonds  but  upon  the  estate  of  which  they  are 
a  part  In  delivering  the  opinion  Mr.  Chitf 
Justice  Woodward  said  (62  Pa.  188): 

"The  mistake  of  the  learned  counsel  for  the 
plaintiff  in  error  consists,  we  conceive,  in  treat- 
me  this  as  a  tax  on  the  government  bonds,  when 
it  18  really  a  tax  upon  a  decedent's  estate,  dyin; 
without  lineal  heirs.  •  •  •  That  estate  pass- 
ed into  the  hands  of  the  necntor  for  a^minis- 


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tration,  and  ia  taxed  in  his  hand*  as  an  estate. 
The  law  takes  every  decedent's  estate  into  cus- 
tody, and  administers  it  for  the  benefit  of  cred- 
itors, legatees,  devisees,  and  heirs,  and  delivers 
the  residue  that  remains,  after  discharging  all 
obligations,  to  the  distributees  entltlea  to  re- 
ceive it" 

Ftnnen's  Estate,  196  Pa.  72,  74,  46  Ail.  268, 
270,  was  an  appeal  from  an  assessment  of  col- 
lateral Inheritance  tax.  In  deilvering  the 
opinion  Mr.  Chief  Justice  Green  said: 

"That  which  the  legatee  gets  and  keeps  is  the 
aggregate  sum  bequeathed,  less  the  amount  of 
the  tax.  The  tax  must  be  retained  by  the  per- 
son who  has  the  decedent's  property  in  charge. 
It  is  therefore  not  a  tax  upon  the  property  or 
money  bequeathed,  but  a  diminntion  of  the 
amount  that  otherwise  would  pass  under  the  will 
or  other  conveyance,  and  hence  that  which  the 
legatee  really  receives  is  not  taxed  at  all.  It 
is  that  which  is  left  after  the  tax  has  been  taken 
oB.  It  is  only  imposed  once,  and  that  is  before 
the  legacy  has  reached  the  legatee  and  before  it 
has  become  his  property." 

The  learned  Chief  Justice  then  cites  with 
approval  Strode  v.  Conunonwealtb,  supra, 
and  quotes  part  of  the)  opinion  of  the  court 
below  in  that  case,  which  we  aflBrmed,  where- 
in It  Is  said  that: 

The  tax  is  "a  restriction  upon  the  right  of  ac- 

aaisition  hj  those  who  under  the  law  regulating 
le  transmission  of  property  are  entitled  to  take 
as  beneficiaries  without  consideration.  The 
state  is  made  one  of  the  beneficiaries.  It  lays 
its  hands  upon  estates  under  such  circumstanc- 
es, and  claims  a  share,  and  whether  the  share  is 
exacted  as  a  tax  or  duty  or  whatever  else,  or 
the  machinery  employed  in  levying  an  ordinary 
tax  is  adopted  or  not,  it  is  of  no  consequence." 

Orcntt'e  Appeal,  97  Pa.  179,  Is  then  cited 
as  holding  the  same  doctrine. 

[2, 3]  The  collateral  Inheritance  tax  law 
of  tbe  state,  as  thus  Interpreted,  did  not  Ui>- 
pose  a  lien  upon  the  interest  of  the  defend- 
ant's wards  in  Jackson's  estate.  The  failure 
«f  the  learned  court  to  observe  the  distinc- 
tion, clearly  pointed  out  in  the  anthoritles 
above  dted,  bet^veen  a  lien  on  the  estate  of 
the  decedent  and  on  the  interest  of  the  de- 
fendant's wards  in  that  estate,  led  it  to  the 
erroneous  conclusion  that  the  tax  was  a  lien 
within  the  meaning  of  the  contract  of  sale 
whlcii  the  defendant  was  required  to  dls- 
duirge.  The  estate  of  George  W.  Jackson, 
deceased,  did  not  pass  to  the  collateral  heirs 
nntll  the  tax  bad  been  paid.  If  Jackson's 
represoitatlTe  delivered  the  personal  estate 
to  the  beneficiaries  before  the  payment  of  the 
tax,  the  statute  unmistakably  fixed  him  for 
It.  I£  the  heirs  took  possession  of  the  real 
estate,  the  tax  bdng  unpaid.  It  was  subject 
to  the  statutory  lien,  but  the  residue  after 
payment  of  the  lien  was  discharged  from  the 
payment  of  the  tax,  and  their  title  was  only 
to  that  part  of  the  estate  "which  Is  left  after 
the  tax  has  been  taken  off."  In  selling  their 
rlgbt,  title,  and  Interest  In  and  to  the  estate 
of  the  decedent,  the  defendant's  wards  could 
sell  only  the  part  of  the  estate  left  after  the 
payment  of  the  tax.  It  was  tliat  title  which 
they  were  required  to  make  good,  marketable, 
and  such  as  would  be  Insured  by  a  reputable 
trust    company.    If  there   were   no  incum- 


brances against  It,  the  plalntUEs  could  not 
complain.  The  lien  reported  by  the  trust 
company  was  against  Jacksm's  estate,  and 
not  against  the  part  of  his  estate  to  whlcb 
the  heirs  succeeded. 

In  construing  a  contract  which  is  ambiga* 
ons  or  contains  apparently  repugnant  clauses, 
the  court  should  consider  the  negotiations 
leading  to  its  formation.  Its  subject-matter, 
the  consideration,  the  circumstances  under 
which  the  parties  contract,  and  the  objects  to 
be  accomplished.  Interpreting  the  contract 
in  the  present  case  in  the  light  of  the  circum- 
stances and  under  a  proper  construction  of 
the  collateral  Inheritance  tax  law,  we  are 
clear  the  parties  Intended  &at  the  plaintiffs 
should  pay  the  defendant,  as  stated  in  the 
agreement,  "$40,000  in  cash,  without  any  de- 
duction whatever."  The  parties  had  been  en- 
gaged In  much  litigation  over  their  rights  to 
the  decedent's  property,  and  Ijoth  sides  desir- 
ed that  it  should  be  ended.  The  title  of  the 
minors  to  the  property  was  attacked  and 
they  were  without  means  to  carry  on  litiga- 
tion. If  this  attack  had  been  successful, 
they  would  have  been  penniless.  There  were 
many  reasons  why  the  other  parties  also 
should  desire  an  end  of  the  litigation.  The 
story  of  their  disputes  and  disagreements  is 
a  long  one,  and  is  told  In  detail  in  the  plead- 
ings. It  was  under  these  drcumstances  that 
the  contract  of  sale  of  the  minors'  interest  in 
the  estate  of  the  decedent  was  entered  into, 
and  which.  It  was  supposed,  would  end  the 
existing  feuds.  The  contract  fixed  by  clear 
and  explicit  language  what  the  plaintiffs 
were  to  pay  and  what  the  defendant  was  to 
receive  for  the  Interest  of  the  minors  In  the 
property.  It  was  "$40,000  In  cash,  without 
any  deduction  whatever."  The  negotiations 
between  the  parties  and  the  construction  put 
upon  the  agreement  by  the  orphans'  court 
when  it  granted  the  guardian  the  authority 
to  sell  clearly  show  that  this  provision  of  the 
contract  unmistakably  carried  out  the  inten- 
tion of  the  parties.  The  master  appointed  by 
the  orphans'  court  reported,  inter  fMA,  as 
follows: 

'The  substance  of  tiiis  agreement  (so  far  as 
the  minors'  interests  are  concerned)  is  tliat  the 
guardian  shall  sell,  and  the  other  parties  to 
said  agreement  shall  buy,  the  entire  interest  of 
the  minors  in  the  estate  of  Georee  W.  Jackson, 
deceased,  for  the  net  sum  of  $40,000  in  cash.' 

Other  parts  of  his  report  also  show  that  he 
Interpreted  the  contract  as  providing  for  a 
net  consideration  of  the  stipulated  sum,  and 
hence  he  reported  that  the  sale  contemplated 
by  the^  agreement  "for  the  sum  of  $40,000 
would  l>e  for  the  beet  interests  of  the  minors." 
The  petition  presented  to  the  orphans'  court 
for  leave  to  make  the  sale  was  joined  In  by 
the  plaintiffs  and  It  was  therein  set  forth, 
Inter  alia,  that  the  plaintiffs  had  offered  In 
writing  to  purchase  the  minors'  Interest  In 
the  property  "for  the  sum  of  $40,000  in  cash" 
with  the  provision  that  "all  adverse  claims 
set  up  against  said  minors'  estate  in  all  the 


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101  ATLANTIC  REPORTER 


(Pa. 


above  proceedings"  should  be  taken  care  of 
bj  the  purchasers,  and  that  all  costs  and  ez- 
X)enses  "shall  be  assumed  by  said  purchasers, 
and  said  minors'  estate  entirely  relieved 
therefrom."  It  Is  therefore  difficult  to  see 
how  "any  deduction  whatever"  can  be  made 
from  the  stipulated  purchase  price  without 
Infringing  the  contract  of  sale.  It  Is  true 
that  the  contract  required  the  title  to  be  good 
and  marketable,  and  provided  against  in- 
cumbrances, but,  CO  far  as  the  record  disclos- 
es, the  title  is  good  and  marketable,  and  the 
only  alleged  incumbrance  against  the  title 
of  the  minors  is  the  collateral  inheritance  tax 
levied  against  the  estate  of  the  decedent  We 
must  assume  that  the  parties  dealt  with  full 
knowledge  of  the  law,  and  therefore  knew 
that  the  estate  of  George  W.  Jadison,  deceas- 
ed, passing  to  the  minors,  was  subject  to  a 
collateral  inheritance  tax  whlcb  was  a  lien 
and  must  be  paid  before  the  minors  received 
and  could  convey  It  With  this  knowledge, 
the  plaintiff  contracted  to  pay  the  defendant 
"$40,000  in  cash,  without  any  deduction  what- 
ever," for  their  Interest  in  the  estate.  The 
natural  and  necessary  inference  Is  that  the 
parties  meant  what  their  contract  clearly  im- 
ports; that  the  stipulated  price  was  to  be 
paid  without  deducting  the  collateral  Inherit- 
ance tax.  We  think,  therefore,  that  the  case 
must  be  ruled  against  the  plaintifts  on  a 
proper  Interpretation  of  the  contract 

The  Judgment  of  the  court  below  Is  re- 
versed, with  a  procedendo. 


(2npa.ia0) 


RICE  T.  KINNET. 


Mardt  12, 


(Supreme  Court  of  Pennsylvania. 
1917.) 

ESxECTDTiON    «=»242— Shxrht's    Debd— Con- 

riKlIATlON. 
An  appeal  from  the  action  of  the  common 
pleas  court  in  dismissing  the  exceptions  to  the 
confirmation  of  a  sheriff's  deed  for  property 
■old  under  a  venditioni  exponas  was  properly 
dismissed,  where  nothing  in  the  record  showed 
error ;  any  remedy  for  refusal  to  vacate  the 
Judgment  under  which  the  property  was  sold 
being  by  appeal. 

TEd.  Note. — For  other  cases,  see  Execution, 
Cent  Dix.  M  669-772.1 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia (Touuty. 

Exceptions  to  the  confirmation  of  a  sher- 
iff's deed  in  the  case  of  Blmer  C.  Rice  against 
Robert  D.  Kinney.  From  an  order  dismiss- 
ing the  exceptions,  defendant  appeals.  Ap- 
peal dismissed. 

From  the  record  it  appeared  that  on  Marcdi 
31,  1913,  the  appellee,  Elmer  0.  Rice,  issued 
a  summons  in  assumpsit  against  the  appel- 
lant, Robert  D.  Kinney,  which  was  served, 
and  on  April  2,  1013,  filed  his  statement  of 
claim,  wherein  he  claimed  upon  and  set  forth 
In  said  statement  true  copies  of  six  promis- 
sory notes,  each  of  the  sum  of  $200.  An  af- 
fidavit of  defense  was  filed   by   appellant. 


Robert  D.  Kinney,  and  the  cause  came  on  for 
trial  May  B,  1914,  and  resulted  in  a  verdict 
on  May  7,  1914,  in  favor  of  appellee,  Elmer 
C.  Rice,  for  $1,597.20.  A  rule  was  taken  for 
a  new  trial,  which  was  dlsdiarged.  Other 
rules  were  taken  by  appellant,  Robert  D.  Kin- 
ney, all  of  which  were  discharged.  Judg- 
ment was  entered  upon  said  verdict  July  11, 
1914,  from  whlcb  no  appeal  has  been  taken. 
On  August  21,  1916,  after  issuance  of  an 
alias  venditioni  exponas,  the  real  estate  of 
appellant,  Robert  D.  Kinney,  was  sold  by  the 
sheriff  of  Philadelphia,  on  the  third  Monday 
of  September,  1016,  for  the  price  of  $250, 
to  Albert  W.  Mylin.  Exceptions  were  filed 
to  the  confirmation  of  the  sale,  complaining. 
Inter  alia,  of  the  action  of  the  court  in  re- 
fusing to  vacate  the  Judgment  and  grant  a 
new  triaL  Xbe  court  dismissed  the  excep- 
tions. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAI/- 
LING,  JJ. 

Robert  D.  Kinney,  of  Philadelphia,  in  pro. 
per.  John  B.  Rutherford,  of  Philadelphia,  fw 
appellee. 

PER  CURIAM.  This  appeal  Is  from  the 
action  of  the  court  below  In  dismissing  ex- 
ceptions to  the  confirmation  of  a  sherUTs 
deed  for  property  of  the  appellant,  sold  on  an 
execution  Issued  May  9,  1916,  upon  a  Judg- 
ment entered  against  him  on  a  verdict  on 
July  11,  1914.  Nothing  whatever  appears 
showing  that  the  court  below  erred  in  dis- 
missing the  exceptions.  If  the  appellant  was 
aggrieved  by  its  action  on  his  rule  to  show 
cause  why  tbe  Judgment  should  not  be  va- 
cated, the  verdict  set  aside,  and  a  new  trial 
granted,  his  remedy  was  by  appeal  from  such 
action  within  the  statutory  period. 
'   Appeal  dismissed,  at  appellant's  costs. 


(ZCTPa.  US) 
DOUGHERT;  v.  PHILADELPHIA  RAPID 
TRANSIT  CX). 

(Supreme  Court  of   Pennsylvania.     Ifarch  12. 
1917.) 

1.  EviOENCK   4=9547  —  ExPEBT   TzsmiONT  — 
TaouxT  Whekl  Leavino  Wibx. 

In  an  action  aKainst  street  railway  for  per- 
sonal  injury  from  fall  of  a  trolley  pole,  where 
there  was  uncontradicted  evidence  that  pole  and 
equipment  were  in  Kood  condition  after  the  acci- 
dent the  refusal  to  permit  a  witness  to  state 
whether  a  troUey  wheel  would  leave  the  wire 
if  the  pole  was  properly  adjusted  was  not  er- 
ror, where  there  was  no  offer  to  prove  that 
the  equipment  was  the  same  at  the  time  of  the 
accident  as  when  the  witness  acquired  his  spe- 
cial knowledge,  and  where  the  actual  condition 
of  the  equipment  was  susceptible  of  direct  proof. 
[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  {  2364.] 

2.  EVIPENCI  e=9514(4)— EXPEBT  TESTIMONT— 

Tboixbt  Wheel  Leaving  Wibb. 
Where  there  was  a  network  of  wires  at  the 
place  of  the  accident  it  was  reversible  error 
to  refuse  to  permit  plaintiff  to  prove  by  an  ex- 


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845 


pert  who  had  worked  for  the  railway  that  trol- 
leys wonld  often  leave  the  wires,  and  that  at 
nich  a  place  there  was  danger  of  the  trolley 
wheel  catchinK  in  the  wires  and  Dulling  the  pole 
out  of  its  socket,  and  that  it  was  dangerous  to 
cross  BQch  wire  without  hoUiag  the  trolley 
tope. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  DiK.  S  2322.1 

Z.  Street  Railboaos  «=»1170)— Acmon  fob 

Injuby— Question  fob  Jubt. 
In  action  aKainst  street  railway  for  person- 
al injury  from  the  fall  of  a  trolley  pole,  held,  on 
the  evidence,  that  the  conductor's  negligence  in 
tailing  to  h(Md  the  trolley  rope,  at  place  of  acci- 
dent and  whether  it  wag  the  proximate  cause 
of  die  injury,  were  for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Oent  Dig.  H  2tt,  242.  261,  252.] 

4.  Nequoence    i&=»121(2),    134(1)— HAFPBir- 

inO  or  ACCISERT— E]VIDBN<S. 

^e  happening  of  an  accident  which  in  the 
usual  course  of  things  and  in  the  exercise  of 
proper  care  does  not  happen  is  not  Itself  evi- 
dence of  negligence,  but  the  quantum  of  proof 
necessary  to  establish  negligence  under  the  dr- 
cumstancea  need  be  very  slight. 

[Ed.  Note.— For  other  cases,  see  Negligence, 
Cent.  Dig.  |i  218.  225,  267,  271.] 

fi.  Street  Bailboads  «=»112(2)— HAPPENina 

OF  Accident— Evidence. 
In  action  aeainst  street  railway  for  person- 
al injury  from  fall  of  trolley  pole,  where  plain- 
tiff, in  ^owintf  how  the  accident  happened,  was 
not  limited  to  direct  evidence,  but  may  make 
out  her  case  by  circumstantial  evidence,  the 
accident  was  not  itself,  evidence  of  negligence. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads. Cent.  IMg.  |{  227.  22&] 

6.  lincTATioN     OF     Actions     «=>127(14)  — 

AlCBNDlIENT  OF  PlAADINO. 

In  sudi  action,  where  the  statement  of  daim 
averred  that  it  was  defendant's  duty  to  inspect 
and  repair  its  cars  and  to  operate  them  in  a 
careful  manner,  so  as  not  to  injure  pedestrians 
by  the  falling  of  the  trolley  pole,  etc.,  the  refusal 
of  an  amendment,  aftw  the  statute  of  limita- 
tions had  run,  to  aver  that  defendant  was  re- 
quired to  have  a  special  automatic  device  upon 
its  cars  to  keep  its  trolley  poles  from  catching 
in  car  wires,  or  to  require  the  conductor  to  hold 
the  trolley  rope,  was  not  error. 

[Ed.  'Note.— For  other  cases,  see  Limitation 
«f  Actions.  Gent.  Dig.  i  645.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Elizabeth  Dougherty  against 
the  Philadelphia  Rapid  Transit  Company  to 
recover  damages  for  personal  Injury.  From 
an  order  refusing  to  take  off  a  compulsory 
nonsuit,  plaintiff  appeals.  Reversed,  with  a 
venire  facias  de  novo. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, MOSCHZISKER,  PRAZEB,  and  WAL- 
LING, JJ. 

Frederick  J.  Sboyer,  Martin  Feldman,  and 
Henry  Arronson,  all  of  PbUadelpbla,  for  ap- 
pellant Harold  B.  Beitler,  of  Philadelphia, 
for  appellee. 


MOSCHZISKER,  J.  Tbls  is  an  appeal 
from  the  refusal  to  remove  a  nonsuit  The 
assignments  of  error  raise  numerous  ques- 


tions; but  we  shall  discuss  only  such  of 
them  as  are  In  some  sense  controlling. 

On  S^tember  24,  1910,  at  about  2  o'clock 
in  the  afternoon,  tbe  plalntUT,  a  pedestrian 
upon  the  streets  of  the  city  of  Philadelphia, 
was  suddenly  struck  and  knocked  down  by 
a  detached  trolley  pole  which  fell  from  the 
top  of  one  of  defendant's  cars,  at  the  junc- 
tion of  Ridge  avenue,  Tenth  and  GallowbiU 
streets.  When  the  case  came  to  trial,  tbe  de- 
fendant produced  its  motorman  and  conduc- 
tor, as  well  as  the  Inspector  who  examined 
tbe  car  In  question,  all  three  of  whom  were 
placed  upon  the  stand  by  the  plaintiff.  So 
far  as  the  notes  of  testimony  Indicate,  these 
witnesses  were  willing  and  fair;  but  their 
examinations  failed  to  disclose  anything 
unusual  or  defective  in  the  construction  or 
maintenance  of  the  offending  car  or  its  ajh 
pllances.  On  the  contrary,  it  appears  that, 
immediately  after  the  accident,  the  trolley 
pole  showed  no  blemishes  or  defects;  that 
it  was  replaced  in  its  socket,  in  apparently 
good  condition,  and  the  car  oi)erated  as 
usual;  further,  that,  when  the  car  was  tum- 
e!d  in  for  inspection,  the  pole  was  "straight" 
and  all  Its  parts  were  in  good  repair ;  final- 
ly, the  Inspector  said  that  his  examination 
did  not  disclose  or  throw  any  light  upon 
what  caused  the  troUey  to  leave  its  wire. 

In  addition  to  the  witnesses  already  refer- 
red to,  a  Mr.  Mulford  was  called  by  the 
plaintiff.  It  appears  from  this  man's  testi- 
mony that  there  were  single  lines  of  trolley 
wires  suspended  over  both  Tenth  and  Callovr- 
hill  streets,  and  a  double  line  over  Ridge  av- 
enue, all  of  these  crossing  one  another  and 
forming  a  network  at  the  point  of  the  ac- 
cident; that,  when  he  arrived  upon  the 
scene,  the  injured  woman  was  lying  on  the 
ground;  and  that  the  wire  upon  which  the 
trolley  pole  in  question  operated  was  "flop- 
ping up  and  down,"  the  rise  and  fall  covering 
a  distance  of  from  five  to  six  Inches.  The 
motorman  said  that,  Just  before  the  accident, 
he  got  a  signal  from  the  conductor  to  start, 
and  "went  ahead" ;  that  almost  Immediately 
"the  power  left  the  car,"  and  it  stopped; 
that  he  stepped  off  to  see  what  had  happened, 
and  found  the  pole  lying  in  the  street.  The 
conductor  testified  that,  when  the  car  start- 
ed, "it  gave  a  certain  crack,"  and  the  trol- 
ley pole  fell  to  the  street 

We  have  summarized  all  the  material  ev- 
idence in  the  case,  excepting  that  the  motor- 
man  stated  there  was  nothing  he  saw  or  knew 
of  which  could  have  caused  the  detachment 
and  fall  of  the  pole;  and  this  excludes  the 
theory  of  the  possible  intervention  of  an  ex- 
ternal agency.  With  the  testimony  thus, 
plaintiff  offered  two  experienced  trolley  car 
operators,  as  experts,  and  tbe  rejection  of 
certain  questions  put  to  them  are  the  prin- 
cipal matters  complained  of  In  the  various 
assignments  of  error. 

[1  ]  The  first  expert  had  worked  a  consider- 


•s»F0r  othar  eaaw  sm  urn*  topic  aad  KlBT-NinfBBR  In  aU  K«r-Namb«nd  DlgMts  and  ladesss 


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101  ATIiANTIC  REPOKTER 


(Pa. 


able  period  for  the  defendant  company,  leav- 
ing their  service  about  five  years  before  the  ac- 
cident, and,  BO  far  as  the  record  shows,  his 
experience  with  trolley  cars  was  all  gained  at 
that  time,  he  having  subseqaently  gone  into 
another  line  of  employment.  There  was  no 
offer  to  prove  the  trolley  equipment,  etc., 
was  the  same  at  the  date  of  the  accident  as 
when  the  witness  in  question  acquired  his 
alleged  special  knowledge.  Hence,  with  this 
lack  in  the  evidence,  his  opinion  on  the  ques- 
tions pot  to  talm  would  not  have  been  a  safe 
guide  for  the  Jury ;  but,  aside  from  this  asr 
pect  of  the  matter,  after  mature  thought, 
we  do  not  see  that  there  was  sufficient  foun- 
dation to  Justify  the  following  Interrogatory, 
put  to  the  witness  by  counsel  for  plaintiff: 
"As  a  result  of  your  experience,  could  a 
trolley  wheel  leave  the  wire  if  the  pole  was 
properly  adjusted?"  The  question  Just  stat^ 
ed,  which  was  disallowed  by  the  trial  Judge, 
covers  in  substance  the  point  sought  to  be 
raised  by  several  of  the  assignments  of  er- 
ror; and  Its  evident  purpose  was  to  prove, 
if  possible,  by  opinion  testimony  that  which 
was  susceptible  of  proof  by  direct  evidence, 
L  e.,  the  fact  as  to  whether  or  not  the  pole 
had  been  properly  adjusted. 

As  previously  stated,  the  notes  of  testi- 
mony show  that  the  plaintiff  had  no  diffi- 
culty in  securing  the  attendance  of  the 
defendant's  employes,  and,  furthermore,  the 
latter's  evidence  indicates  that,  after  the 
accident,  the  pole  and  other  trolley  appli- 
ances were  in  good  condition.  If  the  plain- 
tiff wanted  to  inquire  as  to  the  InspectlMi 
and  adjustment  of  this  pole,  prior  to  the 
accident,  there  was  nothing  to  prevent  him 
from  BO  doing.  Had  such  a  preliminary  in- 
quiry develojied  testimony  from  which  the 
Jury  might  have  reached  the  conclusion  that 
the  pole  had  not  been  properly  adjusted,  and 
had  this  testimony  been  met  by  counter 
proofs,  then,  perhaps,  the  question  under 
consideration  would  have  been  a  proper  one ; 
but,  on  the  record  as  it  stands,  we  see  no 
error  in  the  ruling  of  the  court  below  with 
reference  thereto. 

[2]  The  other  expert  had  gained  his  ex- 
perience by  working  as  a  conductor  for  the 
defendant  company  during  a  period  of  ten 
years,  from  1005  to  1915.  Ttte  plaintiff  of- 
fered to  prove  by  this  witness  that  trolleys 
"would  frequently  leave  the  wire;  that,  as 
a  result  of  leaving  the  wire,  at  an  intersec- 
tion such  as  Tenth  and  Callowhlll  streets 
and  Ridge  avenue,  there  was  constant  dan- 
der of  the  trolley  wheel  catching  in  the  wires, 
the  result  of  which  would  be.  If  the  car  mov- 
ed on,  to  pull  the  pole  out  of  the  socket; 
•  •  •"  again,  that  "it  would  be  danger- 
ous to  cross  a  network  of  wires  such  as  there 
was  at  this  place  [the  point  of  the  accident] 
without  taking  hold  of  the  trolley  rope  to 
prevent  it  [the  trolley  wheel]  being  caught  in 
the  wires  above; .  and  that  the  instructions 
were  to  conductors,  at  that  time,  to  take 
bold  of  the  rope  at  such  a  place."    These 


offers  were  rejected,  and  Uie  plaintiff  secur- 
ed proper  exceptions. 

It  Is  true  that  the  printed  rules  of  the 
company,  produced  by  the  defendant,  did  not 
provide  any  Instructions  to  conductors  such 
as  suggested  in  the  offer;  but  the  fact  that 
the  printed  rules  failed  in  this  respect  did 
not  render  it  impossible  that  oral  instruc- 
tions might  have  been  given,  as  contended  by 
the  plaintiff.  Whether  or  not  such  instruc- 
tions weie  given,  however,  if  it  could  be 
shown  as  a  fact  that  trolleys  frequently 
leave  their  wires,  that,  on  such  occasions, 
there  is  constant  danger  of  the  trolley  wheel 
catching,  and  that  this  danger  Is  well  known 
and  could  be  avoided  by  the  conductor  hold- 
ing the  rope,  it  would  be  a  question  for  the 
Jury  whether  or  not,  under  the  conditions 
existing  at  the  point  of  this  accident,  the 
present  car  was  operated  with  ordinary,  due 
care  when  the  conductor  failed  to  hold  the 
rope. 

[3]  There  was  aome  direct  proof  that  this 
trolley  left  the  wire,  and,  in  addition,  we 
have  the  circumstance  of  the  latter  flopping 
up  and  down.  On  the  whole,  we  think  that 
there  was  sufficient  circumstantial  evidence 
to  require  its  submission  to  the  Jury,  so  that 
they  might  determine  whether  or  not  the 
trolley  pole  had  been  pulled  from  the  top 
of  the  car  by  becoming  enmeshed  in  the  wires, 
and,  further,  If  they  so  found,  whether  or 
not  the  conductor  was  guilty  of  negligence 
in  falling  to  hold  the  rope  at  the  place  in 
question;  finally.  If  he  was  so  guilty,  wheth- 
er or  not  his  neglect  was  the  proximate  cause 
of  the  accident. 

[4]  Outside  of  Pennsylvania,  there  is  a 
strong  line  of  cases  which  hold  that  the  mere 
happening  of  such  an  accident  as  the  one 
here  under  investigation  puts  the  burden 
of  explanation  upon  the  defendant  These 
cases  go  upon  the  principle  that,  "Where  a 
thing  is  shown  to  l>e  under  the  management 
of  the  defendant  and  Ms  servants,  and  the 
accident  is  such  as  in  the  ordinary  course  of 
things  does  not  happen  if  those  who  have 
the  management  use  proper  care,  it  offers 
reasonable  evidence,  in  the  at>sence  of  ex- 
planatlon  by  the  defendant,  that  the  acci- 
dent arose  from  want  of  care"  (see  leading 
case  of  Scott  v.  London  &  St  Katherlne 
Doc^s  Co.,  3  Hnrlstone  ft  Cioltman,  594);  but 
we  have  not  gone  this  far.  See  Lanning  v. 
Pittsburgh  Railways  Co.,  229  Pa.  675-577,  79 
Atl.  136,  32  L.  R.  A.  (N.  S.)  1043;  Clark  v. 
Philadelphia  Rapid  Transit  Co.,  241  Pa.  437, 
88  AtL  683;  Benson  v.  Philadelphia  Rapid 
Transit  Co.,  248  Pa.  802,  93  AtL  1009;  Zerch- 
er  V.  Philadelphia  Rapid  Transit  Co.,  50  Pa. 
Super.  Ct.  324 — all  trolley  cases,  the  last 
three  concerning  the  fall  of  poles.  In  Gtei- 
ser  V.  Pltteburgh  Railways  CJo.,  223  Pa.  170, 
172,  72  Atl.  351,  352,  however,  where  a  pedes- 
trian upon  the  street  was  Injured  by  a  car 
which  Jumped  Its  track,  near  a  switch,  and 
the  only  evidence  of  negligence  was  the 
fact  that  "the  switch  point  was  worn  flat," 


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SMITH  y.  MoCLURE 


347 


we  held  the  Jnry  might  draw  the  Inference 
that  the  accident  was  occasioned  by  the 
worn  condition  of  the  switch  point  There 
we  affirmed  per  curiam,  adopting  the  opinion 
of  the  court  below,  wherein  the  applicable 
principle  Is  stated  thus: 

"It  is  Btill  the  rule  of  law  that  the  hapi>ening 
of  the  accident,  in  cases  such  as  this  one,  is  not 
evidence  of  itself  of  nexligence,  but  the  quan- 
tom  ot  proof  necessary  to  establish  negligence, 
under  certain  circnmstances,  need  be  very 
■ligbt." 

[I]  Wo  feel  that  the  mle  as  Just  stated 
should  be  applied  in  the  present  instance. 
While,  before  the  plaintiff  can  recover,  she 
must  show  how  the  accident  happened  and  fix 
the  defendant  with  negligence,  yet.  In  so 
doing,  she  Is  not  restricted  to  direct  evidence; 
dte  niay  make  her  case  ont  by  drcnmstantial 
proofs  sufBdently  strong  to  cari7  conviction 
to  a  reasonable  mind.  As  already  Indicated, 
we  feel  that  certain  parts  of  the  testimony 
otTered  should  have  been  allowed  as  evidence, 
nnd  that  the  Issues  heretofore  suggested 
should  have  been  submitted  to  the  Jurors  for 
their  determination.  In  addition  to  the  au- 
thorities already  dted,  see  Oaffrey  ▼.  Phil- 
adelphia Rapid  Transit  Co.,  249  Pa.  364,  94 
An.  924:  Janock  v.  Balto.  ft  Ohio  R.  E.  Co., 
252  Pa.  199,  97  Atl.  205. 

[8]  One  other  matter  calls  for  considera- 
tion. Tbe  accident  happened  in  1910;  the 
suit  was  Instituted  and  the  statement  of 
dahu  filed  in  1911.  Plaintiff  averred  that  it 
was  the  duty  of  the  defendant  properly  and 
carefully  to  "Inspect  and  repair"  Its  cars  and 
appliances,  and  to  operate  and  control  them 
upon  the  streets  of  the  city  In  a  proper  and 
careful  manner,  so  that  "pedestrians  crossing 
the  said  streets  •  •  •  should  not  be  in- 
jured by  said  cars  or  by  the  falling  from  said 
cars  of  any  part  or  appliance  thereof;  that, 
disregarding  these  duties,  the  defendant  neg- 
ligently suffered  one  of  Its  cars  to  remain  out 
of  repair,  and  so  negligently  managed,  op- 
erated, and  controlled  this  car  that  "the  pole 
which  was  attached  to  the  top  •  •  •  sud- 
denly and  without  warning  fell  from  said 
•  •  •  car  and  struck  the  plaintiff."  In 
1916  the  plaintiff  asked  leave  to  amend  her 
statement,  by  adding  an  averment  to  the  effect 
that  it  was  the  duty  of  the  defendant  to  op- 
erate its  cars  in  such  a  way  as  to  hinder  the 
trolley  wheel  from  catching  in  cross  wires; 
that  it  was  known  to  the  defendant  that  trol- 
leys frequently  left  their  wires  at  intersect- 
ing streets;  and  that  It  was  the  duty  of  the 
defendant  to  have  a  special  automatic  device 
upon  its  cars  to  keep  its  trolley  poles  from 
becoming  caught  In  such  wires  In  case  they 
should  leave  their  lines;  finally,  that,  when 
a  device  of  this  kind  was  not  used,  it  was  the 
duty  of  the  conductor.  In  approaching  street 
intersections  such  as  the  one  in  this  case,  to 
take  hold  of  the  rope  attached  to  the  trolley 
pole,  in  order  to  control  the  latter  and  pre- 


vent accidents.  The  coart  below  refused  to 
permit  these  amendments. 

There  Is  nothing  in  the  proposed  amend- 
ments which  could  not  properly  be  proved 
under  the  original  statement,  except  the  aver- 
ment as  to  the  automatic  device,  and  we 
agree  with  the  learned  court  below  that  this 
could  not  be  added  to  plaintiff's  case  after  the 
statute  of  limitations  had  ran;  for  the 
charge  of  nonperformance  of  duty  on  the  part 
of  the  defendant  in  not  equipping  Its  cars 
with  such  a  device  would  raise  a  new  element 
calling  for  a  defense  entirely  different  from 
that  required  by  the  averments  of  the  original 
declaration.  If  there  Is  such  a  safety  device 
ta  general  use  as  alleged  In  the  proposed 
amendments,  of  course  the  defendant  ought 
to  Install  It;  but  the  latter's  legal  obligations 
■o  to  do,  under  penalty  of  being  found  guilty 
of  negligence,  is  a  point  which,  on  the  plead- 
ings in  this  case,  we  are  not  caUed  upon  to 
diamim  or  decide:  There  is  no  merit  In  the 
present  assignment 

AU  specifications  of  error  which  direct  at- 
tention to  rulings  in  conflict  with  the  views 
here  expreesed  are  sustained,  and  the  Judg- 
ment is  reversed,  with  a  venire  fadas  de  novo. 


(ST  Fa.  1<8) 
SMITH  V.  McCLTJRB  et  al. 

(Supreme  Court  of  Pennsylvania.    March  12, 
1917.) 

1.  Fbax;di;i.ent  Oonvxtanoks  «=>237(1)— Ao- 
TioN  TO  Set  Abids  —  JuBisoionoif  or 
Eqttitt. 

Equity  has  concurrent  Jurisdiction  with  law 
of  actions  to  set  aside  alleged  fraudulent  convey- 
ances of  realty  to  defeat  neditora,  though  where 
there  is  an  adequate  remedy  at  law  and  the  ju- 
risdiction of  equity  is  raised  by  demurrer  or  an- 
swer, the  case  will  be  remitted  to  the  law  side  ot 
the  court. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent  Dig.  U  674-677,  685.] 

2.  EqurrY  4=342(1)  —  Findikg  ot  Jubisdio- 
TION — Conclusiveness. 

Under  Act  June  7,  1907  (P.  L.  440),  the  de- 
cision of  a  court  of  equity  in  favor  of  its  juris- 
diction is  ctmclusive  upon  the  plaintiff. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  I  U9.] 

3.  EquiTT  «=942(D  — JnaiSDiOTioiT  — Objko- 

TION. 

Where  a  party  seeks  relief  in  a  court  of 
equity  against  fraudulent  conveyances  and  In- 
sists on  its  jurisdiction,  he  cannot  thereafter 
complain  because  the  court  sustains  his  conten- 
tion and  disposes  of  the  case  on  its  merits. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  i  119.] 

4.  JUDOUENT  «=»645— Bks  Adjudicati.— Va- 
uDiTT  OK  Deed. 

Where  one  filed  a  bill  in  equity  against  a 
grantee  averring  that  a  deed  was  in  fraud  of 
creditors  and  seeking  to  have  it  declared  void, 
and  the  grantee  filed  a  denial  and  claimed  that 
complainant  was  not  entitled  to  equitable  relief 
and  complainant  filed  a  replication  and  insisted 
on  equity  jurisdiction,  a  decree  on  final  hearing, 
dismissing  the  bill,  was  res  adjudicata  as  to 
a  subsequent  suit  of  ejectment  against  the  gran- 


fBofor  otb«r  ums  im  wms  topic  and  KBT-NtJMBIIR  ta  all  Ksy-NnmlMrsd  Dlfssts  and  ladeMs 


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101  ATLANTIC  REPORTER 


(Pa. 


tor  and  grantee,  setting  np  tlie  alleged  frandn- 
lent  character  of  the  deed. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent  IMg.  S  1158.1 

Appeal  from  Coart  of  Common  Pleas,  Chea- 
ter County. 

Ejectment  by  C.  SbiUard  Smith  against 
Battle  0.  McClnre  and  husband.  Judgment 
for  defendants  on  demurrer  to  their  answer, 
and  plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TRE3ZAT,  STEWART,  MOSCHZISKER,  and 
WALLING,  JJ. 

W.  B.  Greenwood,  of  CoatesvlUe,  for  appel- 
lant S.  Duffleld  Mitchell,  of  West  Chester, 
for  appellees. 

WALLING,  J.  On  January  9, 1915,  Henry 
0.  McClure  executed  and  delivered  to  hla 
wife.  Battle  0.  McClnre,  a  deed  for  certain 
land  In  the  borough  of  CoatesvlUe,  which 
deed  was  duly  recorded  on  February  12th  of 
the  same  year.  Between  the  delivery  and 
recording  of  the  deed  Mr.  McClure  gave  C. 
Shillard  Smith,  the  plaintiff  herein,  a  Judg- 
ment note  for  an  existing  Indebtedness,  on 
which  Judgment  was  entered  prior  to  the  re- 
cording of  the  deed.  Thereafter  plaintiff  flled 
a  bill  in  equity  in  the  court  of  common  pleas 
of  Chester  coimty  against  Battle  C.  McClure, 
averring  that  the  deed  was  in  fraud  of  the 
rights  of  the  creditors  of  Benry  C.  McClure, 
and  particularly  in  fraud  of  the  rights  of 
plaintiff,  and  praying  that  It  be  decreed 
fraudulent  and  void,  and  as  such  expunged 
from  the  record.  To  this  Mrs.  McClure  filed 
answer,  denying  the  allegations  thereof,  and 
further  averring  that  complainant  was  not 
entitled  to  equitable  relief,  and  that  a  court 
of  equity  was  without  Jurisdiction  therein. 
Plaintiff  liLsistently  contended  at  every  stage 
of  the  proceeding  that  the  court  had  Juris- 
diction. Be  flled  a  replication,  and  the  case 
proceeded  to  trial  on  the  merits.  On  the 
conclusion  of  the  testimony  submitted  by 
plaintiff,  the  court,  being  of  the  opinion  that 
the  right  to  equitable  relief  had  not  been  sub- 
stantially proven,  entered  a  decree  dismissing 
the  bill  at  costs  of  complainant,  and  later 
dismissed  the  rule  to  strilce  off  the  decree, 
.whereby  It  became  final.  Thereafter  plain- 
tiff issued  execution  on  bis  said  Judgment,  by 
virtue  of  which  the  land  was  sold  to  him  by 
the  sheriff;  and  then  plaintiff  brought  this 
action  of  ejectment  against  Mr.  and  Mrs. 
McClure,  and  bases  his  right  to  recover  on 
the  alleged  fraudulent  character  of  the  deed. 
Defendants'  answer  sets  up  the  decree  in 
the  equity  suit,  and  avers  that  thereby  the 
question  as  to  the  validity  of  said  deed  is  res 
adjudicata;  and,  on  plaintiff's  demurrer 
thereto,  the  court  below  entered  Judgment  for 
the  defendants. 

[1-3]  The  mle  urged  for  appellant,  that 
jurisdiction  of  the  subject-matter  cannot  be 
acquired  by  consent,  is  sound  as  a  general 
proposition,  but  has  no  application  to  this 


case,  because  equity  has  concurrent  Jurisdic- 
tion with  the  law  side  of  the  court  of  actions 
to  set  aside  alleged  fraudulent  conveyances 
of  real  estate.  Bowever,  where  there  is  an 
adequate  remedy  at  law  and  by  reason  of 
which  defendant  raises  the  question  of  Juris- 
diction by  demurrer  or  answer,  the  case  will 
be  remitted  to  the  law  side  of  the  court  Act 
of  June  7,  1907,  P.  L.  440  (Purdon's  Digest 
[13th  Ed.],  vol.  V,  page  5465.  Under  that  act 
the  decision  of  a  court  of  equity  In  favor  of 
its  Jurisdiction  is  conduslve  upon  the  plain- 
tiff. Bere  appellant  sought  relief  in  a  court 
of  equity,  and  insisted  on  its  Jurisdiction, 
and  he  cannot  no.w  complain  because  the 
court  sustained  his  contention  and  disposed 
of  the  case  upon  its  merits.  In  a  case  like 
this,  where  the  parties  voluntarily  proceed 
to  trial  upon  the  merits,  the  decree  in  equity 
la  valid,  and  the  plaintiff  is  not  relieved  there- 
from because  the  defendants  vainly  sought  to 
oust  the  Jurisdiction  of  the  court 

Even  a  defendant  waives  his  right  to  an 
issue,  or  to  a  trial  upon  the  law  side  of  the 
court,  unless  he  demands  it  promptly.  "While 
objection  to  the  Jurisdiction  can  generally 
be  made  at  any  stage  of  the  proceedings,  ob- 
jections to  the  Jurisdiction  of  equity  on  the 
ground  that  the  proceedings  should  have  beesa 
instituted  <m  the  law  side  of  the  court  will 
not  t>e  entertained,  unless  made  within  a 
reasonable  time  after  bill  filed.  'Whether  a 
case  may  be  brought  in  the  chancery  form  is 
only  a  question  of  form  and  not  of  Jurisdic- 
tion, and  the  objection  Is  waived  If  not  made 
in  due  season.' "  Penna.  R.  R.  Co.  v.  Bogert, 
209  Pa.  589,  602,  59  Atl.  100,  105. 

Equity  has  concurrent  Jurisdiction  with 
law  where  property  has  been  fraudulently 
conveyed  or  Incumbered  in  order  to  defeat 
the  claims  of  creditors.  Orr  v.  Peters,  197 
Pa.  006,  47  AtL  849.  And  see  Kemmler  v. 
McGovem,  238  Pa.  460,  86  AU.  304,  and  Wag- 
ner V.  Fehr,  211  Pa.  435,  60  Aa  1043,  3  Ann. 
Cas.  60& 

The  case  of  Byde  v.  Baker,  212  Pa.  224,  61 
Atl.  823,  108  Am.  St  Rep.  865,  Is  not  parallel 
to  this;  for  In  that  case  the  defendants  ap- 
pealed; and,  aside  from  that,  the  creditor 
there  first  pursued  his  remedy  at  law  by  a 
sheriff's  sale  of  the  land  in  question,  of  which 
he  became  the  purdiaser;  and  it  was  there 
held  that  his  only  remaining  step  was  an  ac- 
tion of  ejectment  and  not  a  bill  in  equity. 
And  that  case  was  determined  prior  to  the 
passage  of  the  said  act  of  1907. 

Where  a  plaintiff  at  all  stages  of  the  pro- 
ceeding insisted  that  equity  had  Jurisdiction, 
he  cannot,  after  the  bill  has  been  dismissed 
upon  the  merits,  have  the  case  certified  to  the 
law  side  of  the  court  Nissley  v.  Drace,  242 
Pa.  105,  88  AU.  914. 

[4]  Neither  can  he  maintain  an  actl<m  at 
law  for  the  identical  cause  of  action  already 
determined  against  him  in  equity.  "Juris- 
diction win  not  be  taken  In  equity  to  retry  on 
the  same  facts  a  cause  of  action  Uiat  has  been 


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STRATPOKD  t.  FKANKLIN  PAPER  MILLS  00. 


349 


decided  in  proceedings  at  law."  Megahey  t. 
Fanners'  &  Mecbanlcs'  Savings  Fund  &  liOan 
Ass'n,  215  Pa.  351,  64  Atl.  546.  And  the  same 
role  applies  generally  to  courts  of  concurrent 
Jurisdiction.  Plaintiff  bad  bis  day  in  court 
in  a  forum  of  bis  own  selection,  and  is  con- 
dnded  by  the  decree  there  entered,  from 
which  he  took  no  appeal. 
The  Judgment  is  affirmed. 


(IM  Pa.  IBS) 

STRATFORD  t.  FRANKLIN  PAPER 
MILLS  CO. 

Appeal  of  C01£UONW£AI/rH. 

(Supreme  Court  of  Pennsylvania.     Mardi  12, 
1917.) 

1.  Taxation  ®s>114  —  Insoltbhot  of  Cobpo- 

BATION— BtFEOT. 

The  fact  that  a  corporation  was  insolvent 
and  in  the  bands  of  a  receiver  did  not  affect 
the  light  of  the  state  taxing  officer,  as  it  was 
the  receiver's  duty  to  make  the  retams  called 
for  by  the  law,  and  npon  his  failure  to  do  so, 
it  was  the  right  and  duty  of  the  auditor  gen- 
eral to  assess  taxes  on  its  capital  stock,  etc. 

[Ed.  Note. — For  other  cases,  see  Taxation, 
Cent.  Dig.  H  208-2101  271,  273.] 

2.  Taxation    ^=»407 — Rkturns— Notice. 

Whore  the  formal  notices  of  tax  settlements 
aent  to  a  company  in  the  hands  of  a  receiver 
stated  that  "after  repeated  requests"  it  had 
neglected  to  furnish  a  report  it  would  be  as- 
sumed, without  averment  or  proof  to  the  con- 
trary, that  the  receiver  had  knowledge  in  law 
or  in  fact  that  such  reports  were  required,  and 
that  if  not  furnished  the  state  officials  would 
proceed  to  appraise  and  settle  accounts  against 
the  company  for  its  taxes;  prior  notice  of  an 
intention  to  assess  such  taxes  not  being  essen- 
tial. 

[Eld.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  674.] 

8.  Taxation  d=»451 — Heabino — Appkai,. 

Bvery  taxpayer  is  entitled  to  an  opportunity 
to  be  heard  by  the  taxing  authorities  before  a 
tax  is  conclusively  settled  against  him,  but 
there  is  no  rule  requiring  that  he  be  afforded 
a  further  appeal  to  a  court  of  law. 

lEA.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  H  S06,  808.] 

4.  Taxation  €=>446 — CoapOBATiONB— Find- 
ings OF  Taxing  Officials— Revibw. 
A  settlement  of  a  state  tax  on  the  capital 
stock  of  a  corporation  under  Act  June  1,  1889 
(P.  L.  42W,  Act  June  7,  1911  (P.  L.  673),  and 
Act  Jaly  22,  1913  (P.  L.  903),  involves  findings 
of  fact  by  duly  authorized  officials  and  no  other 
tribunal,  unless  one  duly  authorized,  may  in- 
qnire  into  or  set  aside  such  findings. 

[EJd.  Note. — For  other  cases,  see  Taxation, 
Cent  Dig.  ff  784-786.] 

6.  Taxation  «=»446— Cobpobations— Abskss- 

HENTS. 

When,  the  taxing  authorities  have  general 
power  to  assess  the  subject-matter  involved,  an 
assessment  made  as  authorized  by  law  cannot 
be  questioned  or  set  aside  except  in  the  way 
provided  by  the  statute. 

[Ed.  Note. — For  other  cases,  see  Taxation, 
Cent.  Dig.  §S  784-78&] 

Appeal  from  Court  of  Common  Pleas,  Del- 
aware County. 

Exceptions  to  report  of  auditor  dismissed, 
and  claim  of  Commonwealth  for  taxes  in 


case  of  Frank  B.  Stratford  against  the 
Franklin  Paper  Mills  Company  disallowed, 
and  the  Commonwealth  appeals.  Reversed 
and  remitted  to  the  court  below,  with  direc- 
tion. 

Argued  b^ore  BROWN,  C.  J.,  and  MES- 
TREZAT,  STE3WART,  MOSCHZISKER,  and 
WALLING,  JJ. 

Wm,  M.  Hargeat,  Deputy  Atty.  Gen., 
Francis  Shunk  Brown,  Atty.  Gen.,  and  J.  C. 
Taylor,  of  Chester,  for  the  Commonwealth. 
William  C.  Alexander,  of  Media,  for  appellee. 

MOSCHZISKER,  J.  On  April  21, 1914,  the 
Franklin  Paper  Mills  Company,  a  Pennsyl- 
vania corporation,  became  Insolvent  and 
went  into  the  hands  of  a  receiver,  who  turn- 
ed its  assets  into  cash  ;  an  account  was  filed 
and  referred  to  an  auditor;  May  27,  1915, 
the  commonwealth  presented  claims  before 
the  latter  for  1914  taxes  on  capital  stodc  and 
corporate  loans;  these  accounts  had  been 
duly  settled  by  the  proper  authorities.  May 
5,  1916,  for  want  of  the  annual  reports  whicb 
the  law  requires  from  such  corporations;  but 
the  l&amed  auditor,  instead  of  accepting  the 
settlements  in  question  as  conclusive,  took 
testimony  and  found  that  all  the  assets  of 
the  paper  company  were  used  in  manufactur- 
ing, further,  that  the  bonds  taxed  were  held 
exclusively  by  nonresidents;  on  these  find- 
ings, he  concluded  as  a  matter  of  law  that 
the  state  was  not  entitled  to  the  taxes  claim- 
ed ;  the  court  below  decreed  accordingly,  and 
the  Attorney  General  has  appealed. 

The  ultimate  controlling  question  is:  Was 
the  court  below  obliged  to  accept  the  tax 
settlements  presented  by  the  commonwealth 
as  conclusive? 

[1]  The  fact  that  the  corporation  was  in- 
solvent and  In  the  hands  of  a  receiver  did 
not  limit,  restrict,  or  affect  the  right  of  the 
state  taxing  officers,  for  it  was  the  duty  of 
the  receiver  to  make  the  returns  called  for 
by  the  laws  of  the  commonwealth,  and,  upon 
his  failure  so  to  do.  It  was  the  right  and 
duty  of  the  auditor  general  to  assess  against 
the  corporation  the  taxes  here  Involved. 
Commonwealth  v.  Runk,  26  Pa.  235;  Penna. 
Bank's  Assignees'  Account,  39  Pa.  103 ;  Phil- 
adelphia &  Reading  R.  R.  Co.  t.  Common- 
wealth, 101  Pa.  80. 

[2]  Since  the  formal  notices  of  the  tax 
settlements  sent  to  the  iwper  company  state 
that,  "after  repeated  requests,"  it  had  "neg- 
lected or  refused  to  fumlah  a  report,"  In 
the  absence  of  any  averment  or  proof  to  the 
contrary,  we  must  assume  the  receiver  had 
knowledge,  not  only  In  law  but  In  fact,  that 
the  prescrllied  reports  were  required  and,  if 
not  furnished,  the  proper  state  officials  would 
proceed  to  appraise  and  settle  accounts 
against  the  corporation  for  the  taxes  in 
question.  It  has  been  held,  under  circum- 
stances closely  approximating  those  at  bar, 
that  prior  notice  of  an  Intention  to 


«s»ror  other  eases  see  Mune  topic  and  KXT-NUMBER  lo  aU  Key-Numbered  Dtgetti  and  Indexes 


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101  ATLANTIC  REPORTER 


(Pa. 


such  taxes  Is  not  essentlaL  See  Commou- 
wealth  T.  Runk,  26  Pa.  235,  236,  237. 

[3]  Every  taxpayer  is  entitled  to  an  oiv- 
portunlty  to  be  heard  by  the  taxing  author- 
ities before  a  tax  is  conclusively  settled 
against  him  (Wharton  v.  Birmingham  Bor- 
ough, 37  Pa.  371;  11  Modem  American  Law, 
p.  428,  i  48) ;  but  there  Is  no  rule  or  prin- 
ciple which  directs  that  he  must  be  afforded 
a  further  appeal  to  a  court  of  law  (Van 
Nort's  Case,  121  Pa.  118,  128,  129,  15  AU. 
473 ;  11  Modem  American  Law,  p.  428,  t  ^^)- 

[4, 1]  Under  the  relevant  acts  of  assembly 
In  onr  state,  when  a  corporation  fails  to 
make  the  rei)orts  called  for  in  the  statutes, 
an  appraisement  Is  made  and  taxes  of  the 
nature  here  involved  are  settled  by  the  au- 
ditor general,  such  settlements  being  approv- 
ed by  the  state  treasurer  before  they  be- 
come conduslve;  but  the  act  of  March  30, 
1811  (6  Sm.  L.  228,  t  16),  authorizes  and  re- 
quires these  offldals,  "at  the  request  of  each 
other  or  of  the  party"  (meaning  the  party 
taxed),  to  "revise  any  settlement  made  by 
them,  except  such  as  have  been  appealed 
from,  •  •  •  If  such  request  be  made  with- 
in twelve  months  of  the  date  of  settlement, 
•  •  •  "  and  the  act  of  April  8,  1869  (P. 
L.  19),  authorizes  a  board  consisting  of  the 
auditor  general,  state  treasurer,  and  Attor- 
ney General  to  revise  any  tax  settlement, 
even  after  the  year's  limit  Commonwealth 
V.  Penna.  C!o.,  145  Pa.  266.  278,  283,  23  Atl. 
649.  Under  these  two  statutes,  a  practice  of 
tax  revision  has  grown  up  and  become  es- 
tablished (recognized  In  the  recent  act  of 
April  0,  1913,  P.  L.  48),  which  affords  ample 
protection  to  corporate  taxpayers  who,  be- 
cause of  neglect  to  make  the  prescribed  re- 
ports, have  had  accounts  for  taxes  settled 
against  thou,  without  right  of  appeal.  See 
act  of  June  1,  1889  (P.  L.  420),  as  amended 
by  the  act  of  June  8,  1891  (P.  L.  229,  p.  236). 
In  instances  where  appeals  are  allowed  from 
tax  settlements,  the  court  of  common  pleas 
Of  Dauphin  county  Is  the  only  tribunal  with 
original  Jurisdiction  to  bear  such  cases.  See 
section  11,  act  of  March  30,  1811,  supra,  and 
the  act  of  April  7,  1870  (P.  U  57). 

Where,  in  any  given  case,  the  taxing  au- 
thorities have  general  power  to  assess  the 
subject-matter  involved,  an  assessment  made 
in  manner  and  form  authorized  by  law,  can- 
not be  questioned  or  set  aside  except  in  the 
way  provided  in  the  statutes.  Hughes  v. 
Kline,  30  Pa.  227,  231.  In  other  words,  such 
an  assessment,  or  settlement,  cannot  be  at- 
tacked collaterally.  Clinton  School  District's 
Appeal,  66  Pa.  315,  317;  Van  Nort's  Case,  121 
Pa.  118,  128,  129,  15  AtL  473;  Moore  v.  Tay- 
lor, 147  Pa.  481,  484,  23  Atl.  76a  While 
there  is  a  line  of  decisions  holding  that, 
where  a  municipal  subdivision,  or  other  gov- 
emmoital  agency  possessing  a  limited  power 
to  tax,  endeavors  to  make  a  levy  upon  a  sub- 
ject-matter over  which  it  has  no  right  of 
taxation,  the  courts  generally  have  Jurisdic- 


tion in  equity  to  restrain  this  usurpation,  yet 
we  have  been  referred  to  no  case  where  a 
Pennsylvania  court  sitting  In  equity  has  un- 
dertaken to  stay  the  hand  of  the  comoKm- 
wealth  from  the  collection  of  a  duly  settled 
state  tax  upon  a  subject-matter  within  the 
general  JurlsdictiiHii  of  its  taxing  officers, 
much  less  where,  on  the  audit  of  an  account, 
a  common  pleas  court,  in  the  exercise  of  its 
general  authority,  has,  in  effect,  attempted 
so  to  do;  which  is  the  case  at  bar. 

Since. the  act  of  June  1,  1889  (P.  Ll  420), 
amended  by  the  act  of  June  7,  1911  (P.  L. 
673,  675),  and  the  act  of  July  22,  1913  (P.  U 
903,  905),  provides  that  "every  corporation 

*  *  *  from  whom  a  report  Is  required 
[which  includes  companies  such  as  the  pres- 
ent one]  shall  be  subject  to    •    •    •    a  tax 

•  •  •  upon  each  dollar  of  the  actual  val- 
ue of  its  whole  capital  stock,"  an  exemption 
being  allowed  only  of  "so  much  •  •  •  as 
Is  Invested  purely  in  •  •  •  manufactur- 
ing," In  making  tax  settlements.  It  becomes 
the  duty  of  state  officials  vested  with  power 
in  the  premises  not  only  to  appraise  capital 
stock,  but,  in  each  instance,  to  determine 
how  much  thereof  is  subject  to  taxation; 
hence  the  tax  settlements  now  before  us,  ex 
necessitate,  imply  certain  findings  to  the  ef- 
fect that  the  capital  taxed  was  not  involved 
In  manufacturing,  also  that  the  bonds  in 
question  were  held  by  residents  of  the  com- 
monwealth.  On  this  last  point,  see  Common- 
wealth V.  Lehigh  Valley  R.  R.  Co.,  129  Pa. 
429,  18  Ati.  406,  410;  Id.,  186  Pa.  235,  246.  40 
Atl.  491 ;  Commonwealth  v.  Penna.  Salt  Mfg. 
Co.,  145  Pa.  53,  22  Atl.  215.  The  officials  who 
made  these  settlements  being  vested  with  ap- 
propriate power,  no  other  tribunal,  unless  one 
duly  authorized,  would  have  the  right  to  in- 
quire into  or  set  aside  their  findings  of  fact, 
which,  in  effect,  is  what  the  court  below  was 
obliged  to  do  in  order  to  gain  Jurisdiction 
of  this  case.  In  brief,  the  common  pleas  of 
Delaware  county  had  neither  authority  to 
entertain  an  appeal  from  the  tax  settlements 
here  Involved  nor  Jurisdiction  to  restrain 
the  state  from  proceeding  to  collect  the  taxes 
assessed  therein;  hence  it  was  beyond  the 
power  of  that  tribunal  to  accomplish  by  in- 
direction that  which  it  could  not  do  directly ; 
therefore  the  decree  appealed  from,  so  far  as 
it  affects  the  taxes  claimed  by  the  common- 
wealth, must  be  reversed  and  set  aside. 

Many  acts  of  assembly  and  decided  cases 
are  referred  to  in  the  printed  arguments; 
we  have  examined  all,  but  cite  comparatively 
few  of  them.  Although  all  the  authorities 
mentioned  in  the  course  of  this  opinion  may 
not  contain  rulings  directly  upon  the  prin- 
ciple in  connection  wherewith  they  are  cited, 
yet,  we  think,  whenever  this  is  a  fact,  either 
rulings  on  analogous  points  or  relevant  en- 
lightening discussion  will  be  found  present 

In  a  supplemental  paper  book  filed  after 
argument,  the  appellee  suggests  that  the  as- 
signments of  error  are  not  In  proper  form, 
counsel  at  the  same  time  stating  that  they 


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351 


vonld  not  raise  snch  a  "technical  point"  If 
their  case  were  not  a  "hard  one,"  which  lat- 
ter ftict  the  aiH>eUant  admits;  but,  on  the 
other  band,  the  Attorney  General  contends 
that  he  cannot,  in  the  due  performance  of 
his  official  duty,  permit  the  precedent  es- 
tablished by  the  court  below  to  stand,  very 
tmly  saying: 

"The  legal  machinery  of  the  state  wonld  not 
\yt  lufficient  to  travel  around  the  commonwealth 
for  tho  purpose  of  sustaining  tax  settlements 
which  might  be  collaterally  attacked,  if  the 
judgment  of  the  court  below  •  •  •  should 
be  affirmed." 

While  the  assignments  are  open  to  Just 
criticism,  yet  under  the  circumstances,  we  do 
not  feel  that  the  violation  of  our  rules  Is 
such  as  to  Justify  a  dismissal  of  the  appeal. 
We  take  occasion  to  say,  however,  that.  If 
the  facts  are  as  found  by  the  auditor,  and 
sot  denied  by  the  appellant,  the  state  should 
grant  some  form  of  relief  in  this  case ;  for, 
as  said  In  Ck>nunonwealth  v.  Penna.  Salt  Mfg. 
Co.,  supra,  "the  commonwealth  does  not  ask 
that  which  Is  against  good  conscience." 

So  far  as  affected  by  the  rulings  here  con- 
tained, the  decree  Is  reversed,  and  the  record 
is  remitted  to  the  court  below,  with  direo 
tlon  to  revise  Its  distribution  accordingly. 


m  Pa.  K) 

PROVIDENT  LIFE  &  TRUST  00.  t.  ELEM- 
MER  et  aL 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

1.  Statutes  «=>184— OoRSTBtrcnoir— Rkason 

FOB  Bnactmknt. 
In  the  construction  of  a  statute.  It  is  prop^ 
er  to  consider  the  previous  state  of  the  law,  the 
drcnmstances  which  led  to  the  enactment,  and 
especially  the  evil  which  It  was  designed  to  cor- 
rect 

[Ed.  Note.— For  other   cases,    see   Statutes, 
Cent.  Dig.  i  262.] 

2  Taxation    «=»113  —  Cobpobationb  —  Pkb- 

BONAL  PbOPEBTY  TAX— STATUTES. 

Act  June  7,  1911  (P.  L.  67.^),  imposing  a 
state  tax  on  the  capital  stock  of  corporations, 
and  providing  that  corporations  liable  to  such 
taxes  should  not  be  required  to  pay  any  further 
tax  on  mortgages  and  securities  owned  by  them, 
and  in  which  the  whole  body  of  stockholders  or 
members  as  such  had  the  entire  equitable  inter- 
est in  remainder,  was  not  repealed  by  Act  June 
17,  191S  (P.  L.  o07),  Imposing  a  tax  on  personal 
property,  bonds,  certificates  of  indebtedness,  etc., 
for  state  and  county  purposes,  as  the  two  acts 
are  in  pari  materia,  so  that  a  bill  in  equity  to 
restrain  tiie  question  of  a  tax  under  the  act  of 
1911  would  be  dismissed. 

[Ed.   Note.— For  other  cases,   see  Taxation, 
Cent.  Dig.  {  207.] 

8.  Taxation  «=>908  —  Cobpobationb  —  Pkb- 
BORAL  Pbopebtt  Tax— Constbuction. 
Act  June  17,  1913  (P.  L.  507),  is  a  codifica- 
tion of  the  former  laws  relating  to  personal 
property  tax,  and  Its  principal  purpose  was  to 
give  the  tax  to  the  counties,  instead  of,  as  there- 
tofore, havin|;  it  collected  as  a  state  tax,  and 
part  of  it  paid  to  the  counties. 

[Ed.   Note. — For   other   cases,    see   Taxation, 
Cent  Dig.  {  1740.] 


4.  Statutes  «=»159— REPSAir-IirneNTioN. 

The  legislative  intent  is  the  vital  force  of 
sn  act  of  assembly,  and  though  a  subsequent 
statute  is  strictly  contrary  to  a  previous  one, 
yet.  If  the  intention  appears  that  the  previous 
statnte  shall  not  be  repealed,  it  remains  unaf- 
fected. 

[EM.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  8  229.] 

6.  Statutes     «=»2S2— Refeai.  —  Expbkssio 

Untus  est  Exclubio  Altebiub. 
Where  an  act  repeals  a  prior  act,  or  certain 
sections  of  a  prior  act,  all  other  prior  acts,  or 
sections  of  the  act,  must  be  regarded  as  still  in 
force,  under  the  maxim  "expressio  unius  est  ex- 
dusio  alterius." 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  t  313.] 

Appeal  from  Court  of  Common  Fleas,  Phil- 
adelphia County. 

Bill  in  equity  for  an  injunction  by  the 
Provident  Life  &  Trust  Company  of  Phila- 
delphia against  Joseph  H.  Klemmer  and  an- 
other, Assessors,  and  Simon  Gratz  and  oth- 
ers, members  of  the  Board  of  Revision  of 
Taxes,  for  the  City  and  County  of  Philad^- 
phia,  the  City  of  Philadelphia,  and  W.  Free- 
land  Kendrlck,  Receiver  of  Taxes.  Injunction 
awarded,  and  defet^dants  appeal.  Reversed, 
and  bUl  dismissed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and  FRA- 
ZER,  JJ. 

Wm.  M.  Hargest,  of  Harrlsburg,  and 
Mayne  R  Longstreth,  Asst.  City  SoU  and 
John  P.  Connelly,  City  Sol.,  both  of  Phila- 
delphia, for  appellants.  Abraham  M.  Settler, 
Henry  S.  Drinker,  Jr.,  R.  Stuart  Smith,  and 
Charles  E.  Morgan,  all  of  Philadelphia,  for 
appellee. 

MESTRK/AT,  J.  This  bill  was  filed  by  the 
Provident  Life  and  Trust  Company  of  Phil- 
adelphia to  restrain  the  assessors,  the  board 
of  revision  of  taxes,  and  the  receiver  of  tax- 
es of  the  dty  and  county  of  Philadelphia, 
from  levying  and  collecting  the  personal 
property  tax  of  four  mills  on  the  mortgages, 
bonds,  and  other  securities,  known  as  the 
plaintiff  company's  Insurance  assets,  aggre- 
gating $88,172,072.01.  The  plaintiff  has  paid 
the  tax  on  Its  capital  stock,  on  the  securities 
held  by  It  as  trustee,  etc,  the  eight  mills  tax 
upoD  the  gross  premiums  received  in  Its  life 
insurance  business,  taxes  upon  Its  real  es- 
tate In  Pennsylvania,  and  taxes  Imposed  In 
the  other  states  where  It  has  agencies.  It 
denies  liability  for  the  four  mills  tax  on  Its 
Insurance  assets  under  the  tax  laws  of  this 
state.  The  single  question  In  the  case,  there- 
fore, Is  whether  the  d^endants  are  author- 
ized to  levy  and  collect  the  iteisonal  property 
tax  of  four  mills  on  the  securities,  whldi 
constitute  the  so-called  Insurance  assets  of 
the  plaintiff,  a  corporation  liable  to  a  capital 
stock  tax. 

[1]  In  determining  the  question  at  Issue, 
which  requires  the  Interpretation  of  existing 
legislation  imposing  the  personal  i>roperty 


«=9For  other  caiM  ace  *ama  topic  and  KEY-NUMBER  In  all  Key-Numberad  Dlgeata  and  Indaxea 


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352 


101  ATLANTIC  BEPOBTEB 


(Fa. 


tax.  It  vlU  aid  materially  to  advert  to  the 
cbarter  acta  of  the  plaintiff  company  and  a 
part  of  the  subsequent  legislation  conferring 
authority  to  tax  corporate  assets  in  this 
state.  In  the  construction  of  a  statute,  it  is 
proper  to  consider  the  previous  state  of  the 
law,  the  drcumstanoes  which  led  to  the 
enactment,  and  especially  the  evil  whldi  It 
was  designed  to  oorreot.  Black,  Interp. 
Laws,  I  91. 

The  plaintiff  was  Incorporated  and  organ- 
ized under  the  act  of  March  22,  1866  (P.  U 
656),  which  authorized  it  to  do  an  insurance 
and  a  trust  business.  The  act  provides  that 
Its  "affairs  shall  be -managed  by  nine  direc- 
tors, stockholders  of  said  company,"  and  fixes 
the  amount  and  par  value  of  the  capital 
stock.  The  supplementary  act  of  February 
18,  1869  (P.  L.  Id4),  provides  that  the  net 
profits  to  be  derived  from  the  business  of  life 
Insurance  Shall  be  divided  pro  rata  among 
the  policy  holders.  Since  Its  incorporation, 
the  plaintiff  has  been  conducting  the  business 
of  an  insurance  company  and  a  trust  com- 
pany. 

The  act  of  June  7, 1879  (P.  Ij.  112),  entitled 
"An  act  to  provide  revenue  by  taxation," 
was  the  first  general  revenue  act  adopted  by 
the  Legislature,  and  Imposed  a  tax  on  dif- 
ferent classes  of  personal  property  made  tax- 
able by  prior  legislation,  and  provided  the 
machinery  for  its  collectlcm.  The  fourth  sec- 
tion of  the  act  imposed  a  tax  for  state  pur- 
poses upon  the  capital  stock  of  corporations, 
except  banks,  savings  Institutions,  and  for- 
eign instirance  companies,  and  the  seven- 
teenth section  laid  a  tax  of  four  mills  on 
mortgages,  money  owing  by  solvent  debtors, 
etc.,  "in  the  hands  of  Individual  citizens  of 
the  state,"  but  exempted  from  all  taxation, 
except  for  state  purposes,  mortgages,  Judg- 
ments, recognizances,  and  money  due  on  arti- 
cles of  agreement  for  sale  of  real  estate.  The 
act  of  June  30,  1885  (P.  L.  193),  made  no 
change  in  the  subjects  of  taxation  nor  any 
provision  for  a  capital  stock  tax.  It  imposed 
a  state  tax  of  three  mills  on  mortgages,  etc. 

The  act  of  June  1,  1889  (P.  L.  420),  Is  a 
supplement  to  the  act  of  18T9.  It  Is  compre- 
hensive In  Its  terms  and  re-enacts  all  prior 
tax  legislation,  both  as  to  personal  property 
and  capital  stock.  The  first  section  Imposes 
a  three  mills  tax  for  state  purposes  on  the 
personal  property  therein  enumerated,  owned 
by  any  Individual  or  corporation,  except  as 
therein  excepted,  whether  held  in  his  or  its 
own  right  or  in  a  fiduciary  capacity,  and  the 
following  17  sections  provide  the  necessary 
machinery  for  the  assessment  and  collection 
of  the  tax.  The  nineteenth  section  requires 
corporations  to  be  registered,  the  twentieth 
section  to  report  to  the  auditor  general  for 
taxation  of  capital  stock,  and  the  twenty- 
first  section  Imposes  a  tax  on  capital  stock 
of  corporations,  to  be  computed  in  the  man- 
ner therein  specified.  It  is  provided  in  the 
last  named  section  that  corporations  liable 
to  tax  on  capital  stock,  under  this  section. 


shall  not  be  required  to  pay  any  further  tax 
on  the  securities  "belonging  to  them  and  con- 
stituting any  portion  of  their  assets  included 
within  the  appraised  value  of  their  capital 
stock."  The  capital  stock  of  manufacturing 
corporations  Is  exempted  from  taxation.  The 
act  repeals  certain  sections.  Including  section 
4,  of  the  act  of  1879,  and  part  of  the  act  of 
1885,  and  all  other  sections  of  those  acts 
and  other  acts  inconsistent  therewith  or  sub* 
stantlally  re-enacted  by  this  act. 

The  act  of  June  8.  1891  (P.  L,  229),  sup- 
plementary to  the  former  acts,  changed  the 
personal  property  tax  from  three  to  four 
mills  and  amended  various  sections  of  the 
act  of  18S9,  Including  sections  1,  20,  and  21, 
so  that  corporations  liable  to  a  capital  stock 
tax  under  the  last-named  section  should  not 
be  required  to  make  report  or  pay  any  fur- 
ther tax  on  the  securities  owned  by  them  In 
their  own  right  The  act  of  June  8,  1893 
(P.  L.  353),  amended  only  section  21  of  the 
act  of  1891,  and  made  no  substantial  change 
In  the  exemption  proviso  to  that  section  of  the 
act  An  ineffectual  attempt  was  made  by  the 
passage  of  the  act  of  June  7,  1907  (P.  L.  430), 
declared  unconstltatlonal  by  reason  of  the  de- 
fective title  (Provident  Life  and  Trust  Co.  v. 
Hammond  et  al.,  230  Pa.  407,  79  Att.  628), 
to  amend  the  act  of  June  7,  1879,  so  as  to  in- 
sert in  the  proviso  to  the  act  of  1893  the 
words,  "and  In  which  the  whole  body  of 
stockholders  or  members,  as  sudi,  have  the 
entire  equitable  Interest  in  remainder,"  found 
In  the  subsequent  act  of  June  7,  1911  (P.  L. 
673).  The  act  of  May  11,  1911  (P.  L.  265), 
amended  only  the  first  section  of  the  act  of 
1880,  as  amended,  and  relieved  fire  compa- 
nies, etc.,  from  taxation. 

The  act  of  June  7, 1911,  amends  the  act  of 
1879,  as  suiH>Iemented  by  the  acts  of  18S9, 
1891,  and  1893,  "relating  to  taxing  bonds, 
mortgages,  and  other  securities."  It  amends 
only  section  21  of  the  act  of  1893  which  was 
a  supplement  to  the  act  of  1889.  It  Imposes 
a  state  tax  of  five  mills  on  the  capital  stock 
of  corporations,  with  the  following  proviso: 

"That  corporations  •  •  •  liable  to  tax  on 
capital  stock  under  this  section  shall  not  be  re- 
quired to  pay  any  farther  tax  on  the  mortgages, 
bonds,  and  other  securities  owned  by  them,  and 
in  which  the  whole  body  of  stockholders  or  mem- 
bers, as  encb,  have  the  entire  equitable  int«^ 
est  in  remamder;  but  corporationg  •  •  • 
owning  or  holding  such  securities  as  trustees 
•  •  *  or  In  any  other  manner  than  for  the 
whole  body  of  stockholders  or  members  there- 
of as  sole  equitable  owners  in  remainder,  shall 
return  and  pay  the  tax  imposed  by  this  act  upon 
all  securities  so  owned  or  held  by  them,  as  in  the 
case  of  individuals." 

It  will  be  observed  that  this  amendment 
omits  the  phrase,  "in  their  own  right"  con- 
tained In  the  act  of  1893,  and  Inserts  "In 
which  the  whole  body  of  stockholders  or 
members,  as  such  have  the  entire  equitable 
interest  in  remainder."  We  decided  in  Provi- 
dent Life  &  Trust  Co.  v.  McOaughn,  246  Pa. 
370,  91  Atl.  672,  that  the  plaintUTs  Insurance 
assets  were  b^d  for  the  policy  holders  as 


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PKOVIDENT  LIFE  &  TRUST  CO.  ▼.  KliEMMEB 


353 


equitable  owners.  In  remainder,  and  not  for 
the  whole  body  of  stockholders,  and  that 
therefore  these  assets  were  not  exempt  from 
taxation  under  the  act  of  1911. 

The  next  and  final  legislation  on  the  sub- 
ject are  the  two  acta  of  1913.  Act  June  17, 
1913  (P.  li.  607),  and  Act  July  22,  1913  (P.  I* 
903).  It  Is  conceded  that  the  first  act  corers 
only  the  subject-matter  of  the  first  18  seo- 
Hona  of  the  act  of  1889,  as  amended.  It  pro- 
vides In  the  first  section  for  levying  and  col- 
lecting a  tax  for  county  purposes  on  the 
personal  property  therein  enumerated,  and  ex- 
empts therefrom  securities  held  by  corpora- 
tions in  their  own  right,  and.  In  the  seven- 
teenth section,  for  a  state  tax  of  four  mills 
on  scrip,  bonds,  or  certificates  of  indebtedness. 
The  subjects  of  taxation  are  substantially 
the  same  as  in  former  laws,  but  the  act  ex- 
empts from  its  provisions  Ufe  and  fire  in- 
surance corporations  "having  no  capital 
stock."  It  la  provided  in  sections  1  and  17 
that  corporations  llaUe  to  a  capital  stock 
tax  shall  not  pay  any  further  tax,  local  or 
state,  on  the  securities  named  in  those  sec- 
tions and  owned  by  the  corporations  in  their 
own  right,  but  they  shall  pay  the  tax  on 
such  securities  when  held  in  trust.  This  is 
essentially  the  same  exempting  proviso  as 
was  contained  in  the  valid  legislation  impos- 
ing the  capital  stock  tax  passed  prior  to  the 
act  of  June  7,  1911.  The  act  specifically  re- 
peals, inter  alia,  the  first  18  sections  of  the 
act  of  1889  and  parts  of  the  act  of  1891,  "and 
all  other  sections  and  parts  of  the  said  acts 
which  are  inconsistent  herewith,  or  which 
are  hereby  substantially  re-enacted,  and  all 
other  acts  or  parts  of  acts  inconsistent  here- 
with OP  which  are  hereby  substantially  re- 
enacted."  It  does  not  cite  for  repeal,  nor 
repeal  in  terms,  sections  19,  20,  and  21  of 
the  act  of  June  1,  1889,  as  amended,  im- 
posing the  capital  stock  tax,  nor  the  act 
of  June  7,  1911,  nor  any  part  thereof.  The 
acts  repealed  relate  to  the  personal  property 
tax. 

The  plaintiff  company  relies  on  the  act  of 
June  17,  1913,  to  relieve  it  from  taxation  on 
Its  insurance  assets.  It  contends  that  the  act 
repeals  the  act  of  June  7,  1911,  or  the  clause 
In  the  exempting  proviso  of  that  act,  "and 
In  which  the  whole  body  of  stockholders  or 
members,  as  such,  have  the  entire  equitable 
interest  in  remainder,"  and  that  the  act- of 
June  17, 1913,  Is  the  only  act  which  imposes 
a  tax  for  ^ther  state  or  county  purposes  on 
mortgages,  bonds,  or  other  securities. 

As  the  briefs  filed  by  counsel  of  both  par- 
ties disclose,  the  plaintiff  comi>any  has  on 
numerous  occasions  been  required  to  defend 
In  the  courts  its  right,  under  the  tax  laws  of 
the  state,  to  exemption  from  taxation  of  Its 
Insurance  assets.  In  1900  the  plalntllt  filed 
a  bill  to  restrain  the  tax  officers  of  Philadel- 
phia from  taxing  the  property,  and  we  sus- 
tained its  contention,  and  held  that  these 
assets  were  not  taxable  under  the  tax  legisla- 
tion then  In  force,  as  by  the  proviso  to  sec- 
101A.-23 


tion  21  of  the  act  of  1891  corporations  paying 
a  tax  on  their  capital  stock  were  not  required 
to  pay  a  further  tax  on  the  securities  held 
by  them  in  their  own  right.  Provident  Life 
&  Trust  Co.  V.  Durham,  212  Pa.  68,  61  Atl. 
636.  In  1907  another  unsuccessful  effort  was 
made  by  the  tax  authorities  of  the  dty  to 
tax  these  assets  under  the  act  passed  that 
year,  but  we  held  the  act  to  be  unconstitu- 
tional. Provident  Life  &  Trust  C!o.  v.  Ham- 
mond, 230  Pa.  407,  79  Atl.  628.  This  decision 
was  immediately  followed  by  the  passage  of 
the  act  of  June  7,  1911,  amending  the  twen- 
ty-first section  of  the  act  of  1889,  as  amend- 
ed, which  imposed  a  capital  stock  tax  on  cor- 
porations with  the  exemption  above  noted. 
The  plaintiff  again  declined  to  pay  a  tax  on 
its  Insurance  assets,  and,  on  a  bill  filed  to 
restrain  Its  collection,  the  trial  court  entered 
a  decree  In  its  favor.  An  appeal  was  taken 
to  this  court.  Provident  Life  &  Trust  Co.  v. 
McCaughn,  248  Pa.  370,  91  Atl.  672.  In  that 
ease  the  company  attacked  the  constitutional- 
ity of  the  act  of  1911,  contending  that  it  was 
unjustifiable  classification,  and  that  Its  appli- 
cation to  the  company  would  result  in  un- 
lawful discrimination  and  double  taxation. 
We  reversed  the  decree  of  the  court  below, 
sustained  the  act,  and  held  that  it  created  a 
new  and  valid  classification  for  the  pur- 
poses of  taxation,  and  that  the  plaintiff  co^ 
pany  was  within  the  class. 

We  are  clear  that  the  Legislature  did  not 
Intend  to  and  did  not  repeal  the  nineteenth, 
twentieth,  and  twenty-first  sections  of  the  act 
of  18S9,  as  amended  by  the  subsequent  legis- 
lation down  to  and  including  the  act  of  1911, 
when  It  passed  the  act  of  Jime  17,  1913.  If 
this  conclusion  be  correct.  Provident  Life  & 
Trust  Co.  V.  McCaughn,  supra,  rules  this 
case  In  favor  of  the  defendants,  and  the  in- 
surance assets  of  the  plaintiff  are  taxable 
under  the  provisions  of  the  present  tax  laws 
of  the  commonwealth.  We  think  the  legisla- 
tive intent  in  the  enactment  of  the  statute  of 
1911  is  shown  by  the  general  course  of  prior 
legislation  on  the  subject  and  the  decisions  of 
this  court  to  which  we  have  referred,  as  well 
as  by  the  manifest  purpose  of  the  last  two 
statutes.  To  repeal  an  express  enactment 
by  Implication  requires  a  strong  and  clear 
Inconsistency  between  the  laws.  Street  v. 
Commonwealth,  6  Watts  &  S.  200;  Common- 
wealth ex  rel.  Graham  t.  De  Camp,  177  Pa. 
112,  35  Aa  601;  Jackson  v.  Penna.  B.  R.  Co., 
228  Pa.  666,  77  Atl.  906.  Under  the  legisla- 
tion prior  to  the  act  of  1911,  the  plaintiff's 
insurance  assets,  as  decided  by  this  court, 
were  not  subject  to  the  personal  property 
tax.  The  purpose  of  the  Legislature  to  tax 
the  property  was  disclosed  as  far  back  at 
least  as  1907,  when  that  body  made  the  abor- 
tive attempt  to  amend  section  21  of  the  act  of 
1889,  BO  as  to  limit  or  narrow  the  exemption 
from  payment  of  the  personal  property  tax 
to  securities  held  by  corporations  "in  which 
the  whole  body  of  stockholders  or  members. 
as  such,  have  the  entire  equitable  Interest  In 


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354 


ma  ATLANTEO  REPORTEOt 


(Pa. 


remainder."  Aa  the  litigation  discloses,  the 
tax  ofiSdals  believed  prior  to  this  time  that 
the  assets  were  taxable  under  the  legislation 
then  In  force  In  the  state.  When,  and  as  soon 
as.  It  was  Judicially  determined  that  this 
was  an  erroneous  view  of  the  law,  the  As- 
sembly passed  the  act  of  1907.  Within  a  few 
months  after  that  act  had  been  declared  un- 
constitutional, the  Iieglslature  made  another 
effort  to  tax  these  assets,  which  resulted  In 
the  iMssage  of  the  amendatory  statute  of 
1911.  This  act,  as  we  have  seen,  limited  the 
exemption  to  which  corporations  were  enti- 
tled under  section  21  of  the  act  of  1889  to 
securities  held  by  them  In  which  the  whole 
body  of  stockholders,  as  such,  had  the  entire 
equitable  interest  in  remainder,  and,  with  the 
other  amendments  to  that  statute.  It  then 
constituted  the  law  In  this  state  authorizing 
the  taxation  of  personal  property  and  the 
capital  stock  of  corporations. 

[J-8]  We  see  no  evidence  of  a  legislative 
Intent  to  repeal  the  act  of  1911  in  passing  the 
act  of  June  17,  1913.    On  the  contrary,  the 
two  acts  of  1913  show  unmistakably  the  in- 
tention to  continue  in  force  the  act  of  1911  in- 
cluding   the    limitation    on    the   exemption 
clause.    Immediately   prior  to  the  passage 
of  the  act  of  June  17,  1913,  as  will  be  observ- 
ed, the  personal  property  tax  was  levied  and 
collected  under  the  first  18  sections  of  the 
act  of  1889,  as  amended,  and  a  capital  stodc 
tax  under  section  21  of  that  act,  as  amended 
by  the  act  of  1911.    These  acts  were  In  pari 
materia,  and,  as  pointed  out  above,  constitut- 
ed the  whole  body  of  law  on  the  subject  when 
the  act  of  June  17th  was  passed.    This  last 
act  contains  19  sections.  Including  the  repeal- 
ing section.    The  history  of  the  legislation 
taxing  personal  property  in  this  state  shows 
that  the  act  of  June  17,  1913,  is  a  codiSca- 
tlon  or  compilation  of  the  prior  laws  relating 
to  a  personal  property  tax.    The  principal 
purpose  of  the  enactment,  we  think,  was  to 
give  the  tax  to  the  counties,  instead  of,  as 
theretofore,  having  it  collected  as  a  state  tax, 
and  part  of  it  paid  to  the  counties.    It  pro- 
vides in  section  1  for  levying  and  collecting 
a  personal  property  tax  for  county  purposes, 
and  in  section  17  for  a  state  tax  of  four  mills 
on  scrip,  bonds,  or  certificates  of  indebted- 
ness issued  by  private  and  public  corpora- 
tions.   There  is  no  provision  in  the  act  im- 
posing a  capital  stock  tax  on  corporations. 
A  proviso  in  the  two  sections,  however,  re- 
lieves corporations  liable  to  a  capital  stock 
tax  for  state  purposes  from  the  payment  of 
taxes  on  the  securities,  named  In  the  respec- 
tive sections,  owned  by  the  corporations  in 
their  own  right    This  exempting  provision 
clearly  recognizes  a  law  then  In  force  impos- 
ing a  capital  stock  tax,  which,  as  will  be  ob- 
served, was  the  act  of  1911. 

If  we  turn  to  the  repealing  section  (19)  of 
the  act  of  June  17,  1913,  it  is  still  more  ap- 
parent that  the  Legislature  did  not  Intend  to 
abrogate  the  act  of  1911,  nor  any  part  of  its 
provisions.    The  repeal  of  statutes  by  impli- 


cation Is  not  ftivored,  and,  nnless  a  statute  is 
repealed  in  express  terms,  the  presumption 
is  always  against  an  Intention  to  repeal,  if 
there  Is  not  an  Irreconcilable  repugnancy  be- 
tween the  provisions  of  the  two  acts.  It  is  a 
well-recognized  principle  of  statutory  con- 
struction that  a  merely  nfllrmatlve  statute 
shall  not  be  held  to  repeal  a  previous  one, 
if  by  fair  and  reasonable  construction  both 
can  stand  consistently  together.  Homer  & 
Son  r.  Commonwealth,  106  Pa.  221,  226,  51 
Am.  Rep.  621;  Rodebaugh  v.  Philadelidila 
TracUon  Co.,  190  Pa.  358,  361,  42  AtL  953. 
The  legislative  intent  is  the  vital  force  of  an 
act  of  assembly,  and  even  If  a  subsequent 
statute,  taken  strictly  and  grammatically,  is 
contrariant  to  a  previous  statute,  yet  if,  at 
the  same  time,  the  intention  of  the  Legisla- 
ture is  ai^arent  that  the  previous  statute 
shall  not  be  repealed,  it  remains  unaffected 
by  the  subsequent  one.  Crales,  Sta.  Law, 
311.  In  Slfred  v.  Commonwealth,  104  Pa. 
179.  181,  we  said: 

"The  leaning  •  •  •  of  the  courts  Is  strong- 
ly against  repealing  the  positive  provisions  of 
a  former  statute  by  construction.  •  •  •  The 
more  natural,  it  not  necessary,  inference  in  all 
such  cases  is  that  the  Legislature  intends  the 
new  law  to  be  auxiliary  to,  and  in  aid  of  the 
purposes  of,  the  old  law.  There  should  there- 
fore be  such  a  manifest  and  total  repugnancy  in 
the  provisions  of  the  new  law  as  to  lead  to  the 
concluBion  that  the  latter  law  abrogated,  and 
was  designed  to  abrogate,  the  former. 

It  is  a  cardinal  rule  of  construction,  in  as- 
certaining the  legislative  intent  in  the  tai- 
actment  of  a  statute,  that  where  an  ace  re- 
peals a  prior  act,  or  certain  sections  of  a 
prior  act,  all  other  prior  acts,  or  sections  of 
the  act,  must  be  regarded  as  still  in  force 
under  the  maxim  "ezpresslo  unlus  est  ex- 
clusio  alterlus."  Broom,  Legal  Maxims  (8tli 
Eng.  Ed.)  514,  says  that  no  maxim  of  the  law 
is  of  more  general  and  uniform  application, 
and  that  it  is  never  more  applicable  than  in 
the  construction  and  interpretation  of  stat- 
utes. 

Tested  by  these  well-settled  principles  of 
statutory  interpretation,  it  Is  clear,  we  think, 
that  It  was  not  the  Intention  of  the  Legisla- 
ture of  1913  that  the  act  of  June  17,  1913. 
should  repeal  the  act  of  1911,  nor  any  of  ita 
provisions.  The  first  18  sections  of  the  act  oC 
1889,  as  amended.  Imposed  the  personal  prop- 
erQ'  tax  and  provided  for  its  collection. 
These  sectlbns  of  the  act  of  1889,  parts  of  tlie 
act  of  1891,  the  act  of  May  11,  1911,  and  cer- 
tain other  acts  were  repealed  in  terms  by  the 
act  of  June  17,  1913.  The  fourth  section  of 
the  act  of  1879  authorizing  a  capital  stock 
tax  was  repealed  by  the  act  of  1889  whlcti  in 
its  twenty-first  section  relmposed  a  capital 
stock  tax  on  corporations  and  in  sections  id 
and  20  provided  for  its  collection.  Section  21 
of  the  act  of  1889  was  amended  by  the  acts 
of  1891,  1893,  and  1911,  and  under  the  latter 
act  we  held  In  the  McCaughn  Case  that  the 
insurance  assets  of  the  plaintiff  company 
were  taxahle.    The  sections  of  the  several 


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SHERBURNB  y.  BOUGIE 


355 


acts  Imposing  tbe  capital  stock  tax  hare  not 
in  tenns  been  rei)ealed  and  If  they  are  not 
now  In  force  It  Is  only  because  they  are  In- 
consistent with  or  substantially  re-enacted 
by,  the  act  of  June  17,  1918. 

The  learned  counsel  for  the  plaintiff  con- 
tend that  they  are  Inconsistent  with  the  pro- 
vlsiona  of  the  act  of  June  17,  1913,  but  we 
think  the  contention  untenable.  If  the  Leg- 
islature of  1913  had  Intended  to  repeal  the 
three  sections  of  the  act  of  1889,  as  amended, 
Imposing  the  capital  stock  tax,  it  would  have 
repealed  In  terms  the  first  21  sections,  Instead 
of  the  first  18  sections,  of  the  act  as  It  did. 
There  can  be  no  reason,  real  or  apparent,  for 
excluding  the  3  sections  from  the  repealing 
clause  of  the  act  of  1913  If  they  were  to  be 
stricken  from  the  tax  laws  of  the  state.  It 
Is  manifest  that  their  exclusion  was  Intended 
to  leave  In  full  force  the  3  sections  dealing 
with  the  capital  stock  tax.  By  parity  of 
reasoning,  the  act  of  1011,  amending  section 
21  of  the  act  of  1889,  as  amended,  was  not  In- 
tended to  be  repealed.  The  repealing  section  of 
the  act  of  1913,  as  will  be  observed,  spedflcal- 
ly  repeals,  not  only  parts  of  certain  acts,  but 
other  entire  acts  dealing  with  the  subject. 
Why  was  the  act  of  June  7,  1911,  omitted 
from  the  repealing  section  If  intended  to  be 
repealed  In  whole  or  In  part,  while  the  act  of 
May  11  of  the  same  year  was  specifically  In- 
cluded In  the  section?  Laws  are  presumed 
to  be  passed  with  deliberation,  and  with  full 
knowledge  of  all  existing  ones  on  the  sub- 
ject Sedgwick  on  Cionstruction  of  Stat  & 
Oonst  Law  (2d  Ed.)  106;  Howard  Assocla- 
Uon's  Appeal,  70  Pa.  344. 

Tbe  Legislature  of  1913  Is  presumed  to 
have  had  knowledge  of  the  act  of  1911,  and 
of  aU  its  provisions,  Imposing  a  capital  stock 
tax,  with  the  limitations  on  the  exemptions 
contained  in  it  The  Legislature  is  not  only 
presumed  to  have  known  of  the  act  of  1911, 
bnt  had  actual  knowledge  of  It,  as  there  was 
pending  before  It  at  the  same  time  another 
bill,  dtlng  the  act  for  amendment,  which  sul)- 
sequently  became  the  act  of  July  22,  1913. 
That  act  Is  Identical  with  the  act  of  1911, 
except  that  it  does  not  apply  to  corporations 
organized  for  laundering  purposes.  In  view 
of  these  facts,  it  is  Inconceivable  that  the 
Legislature  of  1913  regarded  the  act  of  1911, 
or  any  of  Its  provisions,  or  Intended  that 
It  should  be  considered,  as  inconsistent  with 
the  act  of  June  17,  1913.  This  act  did  not 
repeal  the  only  statute  Imposing  the  capital 
stock  tax,  but,  as  pointed  out  above,  recognlz* 
ed  It  as  In  force,  and  supplied  the  repealed 
sections  of  the  act  of  1889,  imposing  a  person- 
al property  tax.  This  act  and  that  of  1911 
are  In  pari  materia,  and  cover  the  provisions 
of  prior  legislation  providing  for  levying  and 
collecting  a  personal  property  tax  and  a  cap- 
ital stook  tax  on  corporations,  and  our  con- 
struction of  the  recent  acts  makes  the  legis- 


lation on  the  subject  a  consistent  and  bar- 
mcmlous  system. 

We  have  considered  with  care  the  elaborate 
briefs  of  counsel  as  well  as  the  prior  legis- 
lation Imposing  taxes  for  revenue  In  tbl» 
state,  to  which  our  attention  has  been  direct- 
ed, and  are  all  of  opinion  that,  in  passing  the 
act  of  June  17,  1913,  It  was  not  the  Intention 
of  the  Legislature  to  amend  or  repeal  the  act 
of  June  7, 1911,  nor  any  of  its  provisions,  and 
that  the  earlier  statute  Is  still  In  force.  It 
follows,  therefore,  that  the  learned  court  be- 
low erred  In  sustaining  the  plaintltT's  bill, 
and  restraining  the  assessment  and  collection 
of  the  personal  property  tax  on  the  plain- 
tiff's Insurance  assets. 

The  decree  is  reversed,  and  the  bill  Is  dis- 
missed, at  tbe  costs  of  the  plaintiff. 


(U5  Mat  647) 
SHEBBURNB  ▼.  BOUGIM. 

(Supreme  Judicial  Court  of  Maine.    Jnne  6, 
19ia) 

1.  iNDsafNiTT  ®=»1 5(7)— Action  bt  Masikb 
AoAiNST  Sebvant— Evidence. 

In  an  action  by  an  employer  against  his  em- 
pIoy£  to  recover  damages  paid  to  a  third  person 
in  a  suit  for  injuries  received  when  struck  bj 
a  box  which  fell  from  a  wagon  the  employi  wai 
driving  caused  by  the  alleged  negligence  of  the 
employ6,  evidence  held  to  support  a  jury  find- 
ing that  defendant  pursuant  to  the  instructions 
of  plaintiff's  foreman  was  doing  the  work  with- 
out the  rope  used  to  tie  the  boxes  to  the  wagon, 
so  that  his  negligence  was  excused. 

[Ed.  Note.— For  other  cases,  see  Indemnity, 
Cent.  Dig.  |  44.] 

2.  Appeal  and  Erbob  $=>1001(1)— Rxview— 
Vebdict. 

Where  there  is  evidence  to  support  a  verdict, 
the  Supreme  Court  is  not  authorized  to  disturb 
it  <Hi  motion  for  new  trial. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  U  3928-3933.] 

On  Motion  from  Supreme  Judicial  Court,- 
York  County,  at  Law. 

Action  by  Fred  S.  Sherburne  against  Joseph 
Bougie.  Verdict  for  defendant  On  motion 
in  the  Supreme  Ourt  for  a  new  trial.  Mo- 
tion overruled. 

George  M.  Hanson,  of  Calais,  for  plain- 
tiff. Allen  &  Willard,  of  Sanford,  for  de- 
fen'dant 

PER  (CURIAM.    An  action  on  the  case  to 

recover  damages  for  the  alleged  negligence 
of  the  defendant  while  a  servant  of  the  plain- 
tiff, for  which  the  plaintiff  was  obliged  to 
pay,  for  injuries  received  by  Mr.  Couturie 
by  reason  of  the  negligence.  The  verdict 
was  for  the  defendant,  and  the  case  is  befora 
this  court  upon  a  motion  for  a  new  triaL 

Tbe  defendant,  in  April,  1913,  was  em- 
ployed by  the  plaintiff  as  a  teamster,  and 
while  driving  the  plaintiff's  team  loade^d  with 
boxes  along  the  highway  in  Sanford,  the  boz> 
ea  not  being  properly  loaded,  and  not  tied  to 
the  cart  by '  a  rope  which  was  used  when 


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101  ATLANTIC  REPORTER 


(M& 


boxes  were  hauled  with  the  team,  one  of  the 
boxes  fell  from  the  cart  and  struck  Mr. 
Couturie,  knocked  him  from  his  bicycle,  and 
bruised  and  Injured  him. 

December  23, 1913,  Couturie  sued  the  plain- 
tUf  for  the  'damages  sustained  by  reason,  as 
he  alleged,  of  the  negligence  of  the  teamster, 
the  defendant  In  this  case,  and  recovered 
damages  which  the  defendant  In  that  case, 
the  plaintiff  In  this  case,  paid,  and  thereupon 
brought  this  suit  to  recover  of  the  defend- 
ant the  damages  which  he  alleges  he  was 
obliged  to  pay  by  reason  of  the  negligence  of 
this  defendant  wbUe  driving  his  team  as 
aforesaid. 

The  only  Issue  of  fact  was  whether  the 
defendant  was  performing  his  duties  In  ac- 
cordance with  such  directions  from  his  prin- 
cipal (the  plaintiff)  as  would  excuse  his  neg- 
ligence. 

[1,2]  TSiere  was  evidence  that  tended  to 
prove  that  the  Hefendant  was  Instructed  to 
use,  when  he  hauled  the  boxes  on  the  cart, 
a  rope,  and  to  tie  the  boxes  to  the  cart,  and 
It  la  admitted  that  be  did  not  use  the  rope 
the  day  the  accident  happened.  There  was 
also  evidence  that  the  rope  had  been  misplac- 
ed before  the  accident,  and  that  the  defend- 
ant so  reported  to  the  foreman  who  had 
charge  of  the  defendant,  and  whose  orders 
and  instractions  as  to  his  work  it  was  the 
duty  of  the  defendant  to  obey,  and  that  the 
foreman  Instructed  hlra  to  Vlo  the  work  with- 
out the  rope.  There  was  nothing  improbable 
in  the  defendant's  version,  and  the  jury  hav- 
ing seen  and  heard  the  witnesses  upon  both 
sides  of  the  disputed  question  of  fact,  and 
there  being  evidence  that,  if  believed  by 
them.  Justified  them  in  believing  the  defend- 
ant's version,  we  are  not  authorized  to  sub- 
stitute our  Judgment  for  theirs. 

Motion  overruled. 


(US  He.  648) 


HlUi  V.  KEEZER. 


Jnly  18, 


(Supreme  Judicial  Court  of  Maine. 
1918.) 

1.  New  Tbiai,  «=»70— StmiciraioT  of  Evi- 
nENCE— Motion  in  Appellate  Court. 

It  is  not  enough  to  sustain  a  verdict  that 
there  is  evidence  which  if  believed  would  justify 
It;  but  such  evidence  must  be  so  reasonable  and 
probable  that  an  unprejudiced  man,  when  con- 
siderine  all  the  evidence  and  circumstances, 
would  be  justified  in  believing  it,  and,  such  not 
being  the  case,  new  trial  will  be  granted. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  H  142,  143.] 

2.  New  Tbiai.  €=»70  —  Sufficienot  of  Evi- 
dence—Motion IN  Appellate  Goitbt. 

Evidence  in  action  involving  question  of  pay- 
ment or  theft  of  a  note  by  defendant  held,  under 
the  rule  of  reasonableness,  when  considered  with 
all  the  evidence  and  circumstances,  insnfiScient 
to  snstain  verdict  for  defendant  against  motion 
for  new  trial. 

[Kd.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  H  142,  143.]  ^ 


On  motion  from  Supreme  Judicial  Court, 
Penobscot  County,  at  Law. 

Action  by  George  F.  Hill  against  Arthur  A. 
Keezer.  Verdict  for  defendant,  and  plaintiff 
moves  for  new  trial  before  the  full  court 
New  trial  granted. 

Morse  &  Cook,  of  Bangor,  for  plaintiff. 
G.  E.  Thompson,  of  Bangor,  for  defendant 

PER  CURIAM.  An  action  for  replevin  for 
one  horse,  one  meat  cart,  and  one  Jigger  car- 
riage, alleged  to  be  of  the  value  of  $225.  The 
verdict  was  for  the  defendant,  and  the  case 
is  before  this  court  on  motion. 

The  plaintiff  claimed  title  to  the  property 
by  virtue  of  a  mortgage  given  by  the  defend- 
ant to  him  on  the  15th  day  of  June,  1914,  for 
?200.  It  is  the  dalm  of  the  plaintiff  that  on 
January  2,  1915,  there  was  a  setUement  ot 
the  accounts  between  himself  and  the  defend- 
ant, but  not  of  mortgages  and  notes;  and 
the  plaintiff  claims  that  March  6,  1915,  the 
defendant  came  to  his  house  in  Corinth,  and 
pretended  that  he  wanted  to  pay  him  $200,  & 
portion  of  whidi  was  to  be  applied  to  a  $63 
note,  and  the  balance  applied  to  some  other 
notes  which  the  plaintiff  held ;  that  he  went 
to  his  safe  and  took  out  all  the  various  notes 
and  mortgages  given  by  the  defendant,  with 
the  exception  of  one  note  and  mortgage,  and 
that,  while  the  plaintiff  was  figuring  the  in- 
terest on  the  $63  note,  the  defendant  looked 
over  the  other  papers,  and  when  the  plaintiff 
had  finished  reckoning  the  Interest  the  de- 
fendant deliberately  took  all  the  notes  and 
mortgages  belonging  to  the  plaintiff,  includ- 
ing the  one  of  the  property  described  in  the 
replevin  writ,  put  them  in  his  pocket,  and 
started  to  leave  the  house ;  that  the  plaintiff 
made  an  effort  to  stop  the  defendant  and 
called  his  wife,  who  was  in  an  adjoining 
room,  and  who  immediately  called  the  plain- 
tiff's son  on  the  telephone.  The  plaintiff  and 
his  wife  were  aged  people,  and  not  able  to 
stop  the  defendant  from  leaving  the  house. 
After  leaving  the  house  the  defendant  drove 
away.  Thereupon  the  plaintiff  commenced 
foreclosure  proceedings  and  replevied  the  per^ 
sonal  property  described  in  the  writ  Tlie 
record  shows  that  the  plaintiff  and  his  wife 
both  testified  in  substance  as  above. 

The  defendant  claimed,  through  his  coan- 
sel,  that  at  some  time  between  the  17th  and 
21st  of  December,  1914,  he  and  his  wife  paid 
the  plaintiff  between  $212  and  $213  and  took 
up  the  mortgage;  that  after  they  r^umed 
home  the  wife  cut  the  signature  from  the 
note  and  the  mortgage.  The  instruments 
were  produced  at  the  trial  in  that  mutilated 
condition.  The  claim  of  the  defendant  is 
supported  solely  by  the  testimony  of  his  wife. 
He  did  not  take  the  stand  to  testify. 

The  evidence  of  the  plaintiff  and  his  wife 
is  that  in  February,  after  the  defendant's 
wife  testified  the  note  was  paid  and  the  note 
and  mortgage  delivered  to  her  and  her  hus- 
band, they  called  at  the  house  of  the  plala- 


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S67 


tiff  and  wanted  an  extension  of  three  weeks 
to  pay  the  same  mortgage  note  tbat  she  tes- 
tified at  the  trial  they  had  paid  between  the 
17th  and  21st  of  the  preceding  December. 
Her  testimony  Is  further  weakened  by  her 
hosband's  financial  condition  during  the 
month  of  December,  when  she  testified  this 
amount  of  money  was  paid.  The  evidence 
shows  that  he  carried  an  account  in  the  bank, 
and  during  thae  month  made  only  a  few 
small  deposits;  that  he  was  being  pressed 
by  his  creditors,  and  letters  written  by  his 
wife,  who  did  the  corresponding,  show  that 
they  were  putting  ott  the  payment  of  small 
claims  for  goods  used  in  their  store,  claim- 
ing they  could  not  pay  them  when  requested, 
but  would  do  so  shortly.  It  does  not  seem 
probable  that  during  the  time  the  defendant 
was  so  embarrassed  in  his  business  that  he 
could  not  take  care  of  small  bills  for  goods 
furnished  his  store,  and  carried  such  a  small 
bank  account,  they  would  be  carrying  around 
in  money  between  ^12  and  $213  and  pay  the 
mortgage  note  of  the  plaintiff  and  not  have 
the  mortgage  discharged. 

The  defendant  was  charged  by  the  positive 
testimony  of  two  witnesses  with  the  crime  of 
larceny  from  a  feeble  old  man,  whose  con- 
duct at  the  time  In  telephoning  for  help,  and 
In  taking  out  a  warrant  against  the  defend- 
ant for  the  larceny  charged,  strongly  corrobo- 
rated the  plalntifTs  version.  The  defendant, 
although  80  openly  charged  with  the  crime  in 
open  court,  where  the  Jury  was  endeavoring 
to  ascertain  the  troth,  did  not  deny  the  testi- 
mony charging  him  with  the  crime,  or  even 
testify  to  a  payment  which  his  wife's  unsup- 
ported testimony  sought  to  prove,  although 
contradicted  by  two  witnesses  and  the  cir- 
cumstances of  the  case. 

It  Is  incredible  that  an  honest  man,  de- 
f^idlng  an  unjust  claim  charging  him  with 
such  a  crime,  would  allow  such  testimony  as 
was  given  against  the  defendant  in  this  case 
to  go  uncontradicted  or  unexplained.  No  in- 
ference can  be  drawn  from  such  conduct  ex- 
cept that  which  sustains  the  plaintiff's  ver- 
aioii.  The  only  Inference  under  the  circum- 
stances is  that  the  defendant  knew  that  the 
testimony  was  true,  and  did  not  care  to  deny 
it,  and  thereby  committing  the  crime  of  per- 
jury. 

[1,2]  It  is  not  enough  to  sustain  a  verdict 
that  there  Is  evidence  which,  if  believed  by 
the  Jury,  would  Justify  them  In  returning  it. 
That  evidence  must  be  so  reasonable  and  so 
probable  that  an  unprejudiced  man,  when 
considering  all  the  evidence  and  all  the  cir- 
cumstances in  the  case,  would  be  Justified  In 
believing  It.  The  record  In  this  case  does  not 
show  such  a  state  of  facts,  and  it  is  evident 
that  the  Jury,  through  bias,  prejudice,  or 
misapprehension  of  the  weight  oi  evidence 
and  the  rules  of  law,  returned  a  verdict  not 
authorized,  and  the  entry  must  be: 
Motion  sustained. 
New  trial  granted. 


08  N.  H.  898) 

WHITB   MT.   FREEZER  CO.  T.  MURPHY 

et  aL 

NASHUA    CO-OP.    CO.    v.    SAME. 

FLATHHR  FOUNDRY  CO.  v.  SAME. 

(Supreme    Coart    of   New   Hampshire.     Hills- 
borough.    May  1,  1917.) 

1.  WrrRESSES   <S=>83— Compbtenct  —  Pabties 
TO  Suit. 

In  an  action  for  injunction  against  the  of- 
ficers and  members  of  a  labor  union  to  enjoin 
a  strike  called  pursuant  to  a  conspiracy  to 
injure  and  ruin  plaintiffs'  business,  the  business 
ogent  of  the  union,  although  a  party,  was  a 
competent  witness,  and  could  be  required  to  tes- 
tify aa  to  statements  made  by  him  as  to  tbe 
object  of  the  strike  both  during  a  conference 
between  the  parties  before  the  labor  commission- 
er and  at  other  times. 

[BM.  Note.— For  other  cases,   see  Witnesses, 
Cent  Dig.  {{  217-220,  227-238.] 

2.  CONSTITDTIONAL  LiiW   «=>70(1)— PKIVn.Ea- 

ED  Communications  —  Communications  to 

LaBOS   COMKISSIONXB  —  LiEGISLATIVX  QUES- 
TION. 

Whether  or  not  public  policy  requires  that 
all  communicfttiona  to  the  labor  commissioDer 
should  be  privileged  Is  a  matter  for  the  Legisla- 
ture, and  not  a  judicial  question. 

[EJd.  Note. — For  other  cases,  see  Constitutionnl 
Law,  Cent  Dig.  §§  129,  132,  137.] 

3.  Appeal  and  Kbrob  iS=>1082(2)— Review- 
Questions  Not  Prksknted  in  Tbiax  Court. 

Questions  not  presented  when  the  case  was 
argued  in  the  superior  court  will  not  be  consid- 
ered by  the  SupremcCourt  on  transfer  of  the  case. 
(Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §§  1133-1136,  4281-^2&4.] 

4.  Witnesses  ©=»71—Pmvii.eqb— Judge. 

If  a  witness  was  a  judge  called  to  testify  as 
to  proceedings  before  him,  that  fact  would  not 
render  his  testimony  incompetent. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent  Dig.  {  185.] 
6.  Witnesses  «=>216  —  Pbivileok  —  Liabob 

Co  MMissioNEB— Statute. 
Under  Laws  1803,  c.  48,  Laws  1911,  c.  198, 
and  Laws  1913,  c.  186,  creiting  and  defining  the 
duties  of  tbe  office  of  labor  commissioner,  to 
collect,  assort,  arrange  details  relating  to  all 
departments  of  labor  in  the  state,  and  to  at- 
tempt to  bring  about  an  amicable  adjustment 
between  employers  and  employes  or  to  induce 
them  to  submit  to  the  state  board  of  conciliation 
and  arbitration,  and  on  failure  to  secure  such 
reference  to  investigate  the  causes  of  the  con- 
troversy and  puSlish  a  report  assigning  respon- 
sibility therefor,  and  requiring  him  to  hear  all 
parties  and  advise  them  in  certain  circumstanc- 
es, the  labor  commissioner  is  not  given  a  judicial 
power  which  will  excuse  him  from  testifying  as 
to  proceedings  had  before  him. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent  Dig.  |  779.] 

6.  Witnesses    ^=>71— PBivnjEOX& 

The  duty  rests  upon  every  citizen  to  die-  ' 
close,  when  called  upon,  facts  within  his  knowl- 
edge essential  to  the  administration  of  justice, 
and  judges  are  not  exempt  from  the  perform- 
ance of  this  duty,  and  as  a  class  are  necessarily 
impressed  with  its  importance. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  S  185.] 

7.  Witnesses  «=»71— PaiviLEOES-^UDGEa  of 

COUBTS    OF   RECOBD. 

Any  privilege  exempting  judges  from  testify- 
ing as  to  proceedings  had  before  them  has  been 


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confined  to  iadges  of  courts  of  record  where 
Bomo  other  person  can  testify  to  such  proceed- 
iugs. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  f  185.1 

8.  Appeal  aitd  Ebbob  ^3843(1)  —  Rbvibw  — 
Moot  Qubstionb. 

It  is  not  the  practice  of  the  Supreme  Court 
to  consider  mooted  questions  involving  difficult 

?[nestion8  of  law  which  may  not  arise  when  the 
acta  are  found,  and  where  the  allegations  of  a 
bill  seem  to  be  regarded  as  sufficient,  while  the 
requests  to  rule  amount  to  an  inquiry  whether 

f)laintiff  may  not  recover  apon  proof  of  much 
ess  than  they  have  alleged,  the  views  of  the 
Supreme  Court  are  properly  expressed  only  up- 
on the  express  questions  raised  by  exception. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |S  3331-3335,  3337-3341.J 

9.  Conspiracy  €=3l8  —  Labob  Union  Of- 
FICKB8 — Unlawful  Combination  —  Fbiua 
Facie  Case. 

A  bill  against  the  officials  of  a  labor  union 
alleging  a  combination  for  the  purpose  of  com- 
pelling the  plaintiffs  to  employ  only  union  men 
■nd  the  calling  of  a  strike  pursuant  to  such 
combination  made  oat  a  prima  facie  caae,  and 
in  the  absence  of  evidence  of  justification  refusal 
to  rule  that  such  action  would  constitute  a  con- 
spiracy as  a  matter  of  law  in  the  absence  of 
Justification  was  error. 

[BM.  Note.— For  other  cases,  see  Conspiracy, 
Otnt  Dig.  |{  18-24.] 

10.  Torts  «=»10— Stbikes  —  Tntkbfebence 
with  Business— Justification. 

Where  interference  with  plaintiffs'  business 
by  a  strike  to  enforce  a  closed  shop  is  proved, 
justification  therefor  may  be  found  either  in  the 
circumstances,  irrespective  of  motive,  or  In  the 
motive  alone,  or  in  the  circumstances  and  mo- 
tive combined. 

[Ed.  Note.— For  other  caaea,  see  Torts,  Gent 
Dig.  {  10.] 

11.  Torts  <S=»2S— Labob  Strikes— Intebfeb- 
ence  with  Business  —  Justification  — 
Question  of  Fact. 

The  question  of  justification  for  a  strike  to 
enforce  a  closed  shop  is  one  of  fact  and  to  be 
determined  as  a  matter  of  law  only  if  on  the 
evidence  reasonable  men  could  come  to  but  one 
conclusion. 

[Kd.  Note.— For  other  cases,  see  Torta,  Cent 
Dig.  §S  35-37.] 

12.  Tobts  €=»27— Labor  Strikes— Intebfteb- 
ence  with  Pebsonal  Kioiits— Burden  of 
Proof. 

In  a  suit  to  restrain  a  strike  for  the  purpose 
of  enforcing  a  closed  shop,  tlie  fact  that  the 
burden  remains  on  the  plaintiffs  to  establish  a 
legal  interference  with  their  right,  unreasonable 
upon  all  the  evidence,  does  not  destroy   their 

Srima  facte  case  made  by  the  allegation  of  such 
iterference. 

[Ed.  Note.— For  other  cases,  see  Torts,  Cent 
Dig.  i  34.] 

13.  Torts  €=10  —  Labor  Strikes  —  Illeoai. 
Interference  with  Personal  Riohts— 
Picketing. 

If  a  strike  is  an  unreasonable  interference 
with  business,  picketing  during  such  strike  is  not 
unlawful  unless  unren.sonnble  in  fact  or  forbid- 
den by  legislative  mandate. 

[For  other  cases,  see  Tuits,  Cent  Dig.  |  10.] 

Transferred  from  Superior  Court,  Hills- 
borough County;    Pike,  Judge. 

Suits  for  injunction  by  the  White  Mountain 
Freezer  Company,  by  the  Nashua  Co-opera- 
tive Company,  by  the  Flather  Foundry  Com- 


pany, and  by  the  William  Hlghton  &  Sons 
Company  against  Eugene  L.  Murphy  and 
others.  Transferred  from  the  superior  court 
in  advance  of  triaL    Cases  dlscluirged. 

Bills  In  equity  for  Injunctions.  Tbe  bills 
allege  that  the  plaintiffs  are  mannfacturers 
of  machinery  at  Nashua,  employing  a  large 
number  of  persons,  many  of  whom  are  mould- 
ers; that  the  defendants  are  officers  and 
members  of  a  voluntary  antncorporated  as- 
sociation known  as  International  Moulder^ 
Union  of  North  America,  Local,  No.  257; 
that  on  or  alwut  October  11,  1016,  the  de- 
fendants demanded  that  the  plaintiffs  compel 
all  their  moulders  not  members  of  said  local. 
No.  257,  to  Join  the  same,  and  that  thereafter 
only  members  of  such  imlon  should  be  em- 
ployed by  the  plaintiffs,  who  should  there- 
after conduct  a  "closed  shop"  where  only 
members  of  the  union  would  be  employed: 
that  the  plaintiffs  refused  to  accede  to  these 
demands,  and  informed  tbe  defendants  that 
they  would  at  all  times  thereafter  conduct 
an  "open  shop"  making  no  discrimination  in 
the  employment  of  persons  because  of  tbdr 
membership  in  the  union  or  otherwise;  that 
thereupon  the  defendants,  conspiring  togeth- 
er to  injure  and  ruin  the  plaintiffs'  business^ 
and  in  pursuance  thereof.  Induced  and  or- 
dered the  plaintiffs'  employ^  to  enter  upon  a 
strilie  against  them  for  the  purpose  of  com- 
pelling them  to  accede  to  their  demands; 
that  said  strike  Is  now  In  progress  and  is 
being  maintained  for  such  purpose;  that 
since  said  October  11.  1916,  the  defendants 
by  themselves  and  others  have  threatened. 
Intimidated,  and  annoyed  the  persons  re- 
maining in  their  employ  for  the  purpose  of 
inducing  and  compelling  them  to  Join  said 
union,  have  picketed  and  caused  others  to 
picket  said  plaintiffs'  factory  for  the  puri>ose 
of  annoying  and  intimidating  their  employ^ 

The  cases  were  sent  to  a  master  for  the 
finding  of  facts.  In  the  course  of  the  hear- 
ing certain  evidentiary  questions  arose  whicti 
the  presiding  Justice  was  requested  to  pass 
upon.  The  issue  on  trial  was  the  object  of 
the  strike.  Eugene  L.  Murphy,  called  as  a 
witness  by  the  plaintiffs,  testified  that  he 
was  the  business  agent  of  the  International 
Moulders'  Union  of  North  America,  and  aa 
such  represented  the  members  of  tbe  local 
union  la  relation  to  the  strike ;  that  he  rep- 
resented the  men  after  the  strike;  that  he 
called  the  attention  of  the  labor  commis- 
sioner to  the  fact  that  a  labor  controversy 
existed  at  Nashua,  and  in  consequence  there- 
of the  labor  commissioner  called  him  and  the 
plaintiffs  together  for  a  general  conference. 
The  court  ruled  subject  to  exception  that  the 
witness  should  answer  inquiries  as  to  ad- 
missions made  by  him  to  the  labor  commis- 
sioner and  to  the  plaintiffs  as  to  the  object 
of  the  strike.  Mr.  Davie,  the  labor  com- 
misslcnor,  also  called  as  a  witness  by  the 


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WHITE  MT.  FREEZER  00.  t.  MURPHT 


859 


plaintiffs,  testified  that  he  had  bad  some  cor- 
respondence with  Mnrpby  in  reference  to  the 
controversy,  and  that  shortly  before  October 
27,  1916,  he  received  a  communication  from 
htm,  but  declined  to  produce  or  to  answer 
the  question  whether  at  an  Interview  before 
him  between  Murphy  and  the  plaintiffs  thr 
plaintiffs  requested  of  Murphy  a  statement 
In  writing  as  to  the  demands  of  the  union. 

The  defendants  objected  to  these  ques- 
tions, and  the  witness  declined  to  answer 
upon  the  ground  that  the  conference  between 
him  as  labor  commissioner  and  the  parties 
was  of  a  confldentlal  nature.  The  court 
ruled  In  reliance  upon  Hale  v.  Wyntt,  78  N. 
H.  214,  98  Atl.  379,  that,  as  a  quasi  judicial 
ofHcer,  the  commissioner  could  not  be  re- 
quired to  answer  and  the  plaintiffs  excepted. 

The  plaintiffs  claimed  and  asked  the  court 
to  rule  that,  If  it  should  be  established  that 
the  defendants  combined  to  bring  about  a 
strike  In  the  plaintiffs'  shops  for  the  purpose 
of  compelling  the  plaintiffs  to  employ  only 
union  men  In  their  shops,  and  the  strike  was 
Inaugurated  for  that  purpose,  the  facts  stat- 
ed would  constitute  a  conspiracy  as  matter 
of  law.  The  court  ruled  otherwise,  and  the 
plaintiffs  excepted.    The  case  adds: 

"AjBsuming  the  facts  upon  which  this  ruHnj: 
Is  mode  to  have  been  established,  the  court  could 
not  find  therefrom  that  the  defendants'  conduct 
was  unreasonable." 

The  court  was  asked  to  rule  before  trial 
that  all  organized  picketing,  that  Is,  picket- 
ing, by  order  of  the  International  Moulders' 
Union,  by  twos  who  parade  the  streets,  ob- 
serve who  are  entering  and  leaving  the  plain- 
tiffs' shops.  In  order  that  they  may  argue 
and  persuade  them  to  join  the  strike,  Is  un- 
lawful. The  court  declined  so  to  rule,  and 
the  plaintiffs  excepted.  The  case  was  trans- 
ferred upon  the  foregoing  rulings  by  Pike, 
C.  J.,  In  advance  of  a  trial  upon  the  ground 
that  the  advance  decision  of  these  questions 
might  shorten  or  avoid  a  trial  of  the  facts. 

John  K.  Spring  and  Ivory  C.  Baton,  both 
of  Nashua,  and  Herbert  A.  Baker  and  Joseph 
J.  Feely,  both  of  Boston,  Mass.  (Joseph  J. 
Feely,  of  Boston,  Mass.,  orally),  for  plaintiffs, 
William  H.  Barry,  of  Nashua,  and  Frederick 
W.  Mansfield,  of  Boston,  Mass.  (Frederick 
W.  Mansfield,  of  Boston,  Mass.,  orally),  for 
defendants. 

PARSONS,  C.  J.  [1]  The  defendant  Mur- 
phy, called  as  a  witness  by  the  plaintiffs, 
testified  that  he  represented  the  other  de- 
fendants after  the  strike,  and  was  Inquired 
of  as  to  statements  made  by  him  as  to  the 
object  of  the  strike  both  during  a  conference 
between  the  parties  before  the  labor  commis- 
sioner and  at  other  times.  To  the  ruling 
requiring  the  witness  to  answer  the  defend- 
ants excepted.  Murphy,  though  a  party,  was 
a  competoit  witness  and  could  be  required 
to  testify.  Whitcher  v.  Davis,  70  N.  H.  237, 
46  Atl.  458.  He  could  not,  of  course,  be  re- 
quired to  give  testimony  tending  to  incrimi- 


nate himself,  to  detail  an  offer  of  compro- 
mise or  disclose  privileged  oommunlcatlons. 
But  it  does  not  appear  that  the  questions 
asked  him  had  such  tendency.  There  Is  no 
evidence  of  an  offer  of  compromise  by  either 
party.  If  there  had  been,  an  admission  of 
an  Independent  fact  like  that  inquired  about, 
the  object  of  the  strike,  would  be  oompetent. 
Colbum  v.  Groton,  66  N.  H.  151,  158,  28 
Atl.  95,  22  L.  R.  A.  763.  The  defendants 
contend  that  as  matter  of  public  policy  all 
communications  to  the  labor  commisslonw 
should  be  privileged. 

[2]  This  is  matter  for  the  Legislature. 
The  statutes  on  the  subject  in  force  at  tlie 
time  contain  no  such  provision,  but,  on  the 
other  hand,  indicate  a  legislative  belief  that 
the  public  good  demands  publicity  rather 
than  secrecy  as  to  the  controversies  which 
the  office  was  designed  to  adjust.  Laws 
1911,  c  198,  H  &-8;  Laws  1913,  c.  186,  H 
3,  4. 

[3]  Since  the  argument  of  this  case  the 
Legislature  has  amended  section  4  of  chap- 
ter 198,  Laws  1911,  renumbered  by  section 
1,  c.  186,  Laws  1913,  by  adding  at  the  close: 

"Neither  the  proceedings  nor  any  part  thereof 
before  the  labor  commissioner  b^  virtue  of  this 
section  shall  be  received  in  evidence  for  any 
purpose  in  any  judicial  proceeding  before  any 
other  court  or  tribunal  wnatever." 

This  amendment  was  adopted  April  10, 
1917.  Section  4,  referred  to,  prescribes  the 
duty  of  the  commissioner  "whenever  any  con- 
troversy or  difference  arises  relating  to  the 
conditions  of  employment  or  rates  of  wagca 
between  an  employer  •  •  •  and  his 
•  •  •  employes."  Section  7  of  the  same 
act  relates  to  bis  action  when  he  had  knowl- 
edge a  strike  is  threatened  or  has  occurred. 
Whether  the  matters  Inquired  about  arose 
in  proceedings  under  section  7  or  section  4, 
whether  the  amendment  applies  to  proceed- 
ings under  7  as  well  as  under  4,  and  wheth- 
er the  amendment  will  be  applicable  In  fur- 
ther proceedings  In  this  suit,  pending  when 
the  legislation  was  adopted  (Rich  v.  Flan- 
ders, 39  N.  H.  304;  Kent  v.  Gray,  53  N.  H. 
676),  are  questions  which  were  not  present- 
ed when  the  case  was  argued,  and  which 
therefore  are  not  now  considered. 

[4]  The  labor  commissioner  did  not  put 
bis  objection  to  testifying  upon  ground  that 
be  was  judge  of  a  court,  but  upon  the  ground 
that  the  communications  made  to  him  were 
privileged.  If  the  witness  was  a  judge 
called  to  testify  as  to  proceedings  before 
him,  that  fact  did  not  render  his  testimony 
Incompetent  (Hale  v.  Wyatt,  78  N.  H.  214, 
98  Atl.  379),  and,  as  the  court  had  already 
ruled  the  matter  inquired  about  was  not 
privileged,  the  defendants'  objection  to  the 
questions  should  have  been  overruled.  The 
court  suggested  that,  if  the  commissioner 
objected,  he  could  not  be  compelled  to  testi- 
fy because  he  was  a  quasi  judicial  officer. 
This  suggestion  was  made  In  reliance  upon 
the  decision  in  Hale  v.  Wyatt,  supra.    The 


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101  ATLANTIC  EEPORTBR 


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ofBce  of  labor  commissioner  was  created  In 
1893.  The  duties  of  the  office  as  then  de- 
fined were  "to  collect,  assort,  arrange,  and 
present  in  annual  reports  •  •  •  statisti- 
cal details  relating  to  all  departments  of 
labor  in  the  state."  Laws  1803,  c.  48,  {  5. 
By  the  legislation  of  1911  additional  duties  of 
Investigation,  prosecution,  advice,  and  per- 
suasion and  report  are  imposed  upon  the 
commissioner. 

[6]  He  is  not  to  hear  and  decide  contro- 
versies between  employers  and  employ^, 
but  to  endeavor  to  bring  abont  an  amicable 
adjustment,  and,  failing  that,  to  induce  the 
parties  to  submit  the  dispute  to  arbitrators 
or  to  the  state  board  of  conciliation  and  ar< 
bltration,  substituted  two  years  later  for  the 
board  of  arbitrators.  In  case  of  failure  to 
secure  such  reference  in  case  of  a  strike, 
he  is  to  investigate  the  causes  of  the  contro- 
versy, ascertain  which  party  is  mainly  re- 
sponsible, and  make  and  publish  a  report 
assigning  sudi  responsibility.  But  there  is 
no  suggestion  such  investigation  is  to  be  a 
judicial  one.  No  machinery  is  provided  for 
a  judicial  proceeding.  The  only  trace  of 
judicial  action  is  found  in  the  provisions  of 
section  3  requiring  him  to  hear  all  parties 
and  advise  them  in  certain  circumstances 
what,  if  anything,  ought  to  be  conceded  by 
either  or  both.  Laws  1911,  a  198,  i  8; 
Laws  1913,  c.  188,  |  1.  While  it  may  well 
be  that  the  duty  of  conciliation  imposed  up- 
on the  commissioner  can  be  better  performed, 
as  the  Legislature  now  seem  to  think,  If 
some  or  all  communications  to  or  before  him 
are  held  privileged,  the  commissioner  can- 
not claim  the  privilege  of  exemption  as  a 
witness  in  view  of  the  numerous  other  duties 
imposed  on  him,  unless  at  the  time  about 
which  inquiry  is  sought  of  him  he  was  en- 
gaged in  a  purely  judicial  duty.  It  does 
not  appear  that  the  information  sought  of 
him  in  the  present  case  was  obtained  by  him 
while  acting  in  such  a  capacity.  And  it  is 
clear  that  judicial  power  which  would  ex- 
cuse him  from  appearing  as  a  witness  has 
not  l>een  given  to  him. 

In  Hale  v.  Wyatt,  78  N.  H.  214,  98  AtL  370, 
the  judge  of  probate  was  called  and  testified 
ui<on  appeal  as  to  statements  made  in  a  hear- 
ing before  him.  The  question  was  as  to  the 
competency  of  the  evidence  which  was  de- 
cided in  the  affirmative.  What  circumstanc- 
es would  justify  a  judge  in  refusing  to  testi- 
fy to  matters  which  occurred  at  a  trial  be- 
fore him  there  was  no  occasion  to  discuss. 
TIic  point  was  not  presented. 

"A  judge  of  a  superior  court  seems  to  have 
been  regni-ded  as  exempt  from  attendance  at 
eommon  law."    4  Wig.  Ev.  {  2373  (3). 

While  it  is  stated  generally  in  the  text- 
books and  in  some  cases  that  a  judge  of  a 
court  of  record  cannot  be  required  to  testify 
as  to  matters  occurring  before  him  In  court 
(1  Gr.  E.  i  249;  Welcome  v.  Batchelder,  23 
Me.  85),  the  right  does  not  appear  to  liave 


-often  deprived  the  triera  of  fbe  benefit  of 
such  knowledge. 

[I]  The  duty  rests  upon  every  citizen  to 
disclose  when  called  upon  facts  within  his 
knowledge  essential  to  the  administration 
of  JusUce.  B.  &  M.  R.  B.  V.  State,  75  N. 
H.  513,  518,  77  Atl.  996,  31  L.  B.  A.  (N. 
S.)  639,  Ann.  Cas.  1912A,  382.  Judges  are 
not  exempt  from  the  performance  of  this 
duty,  and  as  a  class  are  necessarily  impress- 
ed with  its  importance.  If  such  privilege 
exists,  it  has  been  honored  by  breach  rather 
than  observance.  In  Reglna  v.  Gazard,  8 
Car.  &  P.  513,  in  1838,  the  grand  jury  were 
advised  by  Mr.  Justice  Patterson  not  to  ex- 
amine against  his  objection  the  chairman  of 
the  Court  of  Quarter  Sessions  as  to  testi- 
mony in  a  case  before  him;  the  justice  re- 
marking that  the  proposed  witness  was  "pres- 
ident of  a  court  of  record,  and  it  would  bo 
dangerous  to  allow  such  an  examination  as 
the  judges  might  be  called  upon  to  state 
what  occurred  before  them  in  court"  Un- 
less R.  V.  Harvey,  8  Cox.  Cr.  90,  108,  and 
Anon.,  24  Solicitors'  Journal,  398,  cited  by 
Wlgmore  are  exceptions,  the  case  in  8  Car. 
&  P.  is  the  only  one  found  in  which  the 
judge's  testimony  was  not  produced.  In'  1872 
in  the  House  of  Lords,  the  question  being  ns 
to  the  admissibility  of  the  testimony  of  an 
arbitrator  in  explanation  of  an  award,  Mr. 
Baron  Cleasby  said: 

"BMrst  with  regard  to  the  competency  of  the 
umpire  as  a  witness.  I  am  uot  aware  of  any 
real  objection  to  it.  With  respect  to  those  who 
fill  the  office  of  judge  it  has  been  felt  that  there 
are  grave  objections  to  their  conduct  being  made 
the  subject  of  cross-examination  and  comment 
(to  which  hardly  any  limit  could  be  put)  in  rela- 
tion to  proceedings  before  them ;  and  as  every- 
thing which  they  can  properly  prove  can  be 
proved  by  others,  the  courts  of  law  discounte- 
nance, and  I  think  I  may  say  prevent,  their  be- 
ing examined."  Buccleuch  v.  Metropolitan  Bd., 
L.  R.  5  H.  L.  418,  433. 

[7]  The  privilege  appears  to  be  confined  to 
judges  of  courts  of  record.  This  must  neces- 
sarily be  so ;  for  if  there  is  no  recording  of- 
ficer but  the  judge  or  quasi  judicial  officer 
himself,  proceedings  before  him  can  be  prov- 
ed only  by  calling  him  as  a  witness.  In  R. 
V.  Harvey,  8  Cox.  Cr.  103,  although  Byles,  J., 
said  he  should  refuse  to  appear  If  subpoenaed 
to  produce  his  minutes  of  testimony,  he  add- 
ed "that  the  rule  did  not  apply  to  inferior 
magistrates."  4  Wig.  Ev.  c.  2372.  If  the  la- 
bor commissioner  had  claimed  to  be  excused 
on  the  ground  of  privilege,  such  daim  should 
have  been  overruled. 

[•]  Certain  other  questions  were  then 
mooted  bearing  upon  the  maintenance  of  the 
proceeding  upon  which  the  court  ruled  sub- 
ject to  exception.  These  exceptions  are  also 
transferred  with  the  suggestion  that  their  de- 
termination in  advance  of  a  trial  may  short- 
en or  avoid  the  hearing  upon  the  facts.  This 
procedure  is  one  often  employed  when  justice 
and  convenience  require,  but  it  is  not  the 
practice  to  consider  difficult  questions  of 
law  which  may  not  arise  when  the  facta 
are  found.    Glover  t.  Baker,  76  N.  H.  261, 


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361 


263,  81  AtL  1081.  Questions  considered  In 
this  way  are  ordinarily  important  ones  nec- 
essarily involved  In  tbe  action.  Hampton 
Beach  Co.  v.  Hampton,  77  N.  H.  373,  92  Atl. 
S49,  L.  R.  A.  191SC,  698.  It  is  not  the  duty 
of  the  court  nnder  the  gnise  of  this  proce- 
dare  to  advise  the  parties  in  advance  as  to 
their  rights  under  all  possible  focts  which 
might  be  proved.  As  suggested,  the  allega- 
tions of  the  bill  seem  to  be  regarded  as  snf- 
flclent  while  the  requests  to  rule  amount  to 
an  inquiry  whether  the  plaintiffs  may  not 
recover  upon  proof  of  much  less  than  the^ 
have  alleged.  In  this  situation  the  views 
of  the  court  are  properly  expressed  only 
upon  the  precise  questions  raised  by  excep- 
tion. 

Two  questions  were  raised: 

1.  The  court  was  asked  to  rule  that,  if  tlie 
defendants  combined  to  bring  about  a  strike 
in  the  plaintiffs'  shops,  and  the  strike  was 
accordingly  Inaugurated  for  the  object  of 
thereby  compelling  the  plaintiffs  to  employ 
only  union  men,  such  action  would  constitute 
a  conspiracy  as  matter  of  law.  The  court 
declined  to  so  rule,  and  tbe  plaintiffs  except- 
ed. The  court  then  stated  that  he  could  not 
find  from  these  facts  that  the  defendants' 
conduct  was  unreasonable.  It  does  not  ap- 
pear whether  this  statement  was  intended  as 
a  finding  of  fact  or  as  a  ruling  of  law.  No 
exception  is  reported,  and  no  question  Is 
transferred  upon  this  statement.  The  plaln- 
tUTs'  present  contention  is  that  a  combina- 
tion for  the  purpose  of  compelling  them  to 
employ  only  union  men  in  their  shops  is  un- 
lawful and  constitutes  a  conspiracy  as  mat- 
ter of  law.  This  appears  to  be  the  first  con- 
troversy of  this  character  in  this  jurisdic- 
tion, but  the  defendants  claim  that  Huskle 
V.  Griffin,  75  N.  H.  345,  74  Atl.  595,  27  I*  B. 
A.  (N.  S.)  966,  139  Am.  St  Rep.  718,  is  de- 
cisive of  the  question  now  under  considera- 
tion. There  was  no  question  of  combination 
in  Huskle  v.  Griffin.  The  acts  of  a  single  in- 
dividual were  under  consideration.  But  an 
act  imlawful  for  one  to  do  is  not  made  law- 
ful because  done  by  a  combination. 

If  the  defendants  have  undertaken  by  com- 
bination or  otherwise  to  compel  the  plain- 
tiffs to  employ  only  certain  individuals  or  a 
certain  dass  in  their  shops,  they  have  Inter- 
fered with  a  right  of  the  plaintiffs  said  In 
Huskle  V.  Griffin  to  be  "inherent  in  the  Idea 
of  Anglo-Saxon  liberty"  the  right  to  freely 
deal  or  refuse  to  deal  with  others;  "prima 
facie  a  man  can  demand  an  open  market." 
Huskle  V.  Griffin,  supra,  75  N.  H.  847,  350, 
74  Atl.  697,  27  L.  R.  A.  (N.  8.)  966,  139  Am. 
St.  Bep.  718.  The  defendants  concede  the 
Interference;  they  say  in  their  brief: 

"A  strike  to  enforce  a  'dosed  shop'  may  be 
nnlawful,  and  it  may  be  lawful  *  •  •  A 
strike  to  enforce  a  closed  shop  is  unlawful  un- 
less there  is  justification." 

Tbis  is  tbe  view  of  Huskle  v.  Griffin,  su- 
pra, quoting  from  Parkinson  Co.  r.  Trades 
CcuncU,  154  Cal.  581,  98  Pac.  1027,  21  U  B. 
A.  (N.  S.)  650: 


"Any  injury  to  a  lawful  business,  whether  tbe 
result  of  a  conspiracy  or  not,  is  prima  facie  ac- 
tionable, but  may  be  defended  upon  the  ground 
that  it  was  merdy  the  result  of  a  lawful  effort 
of  the  defendants  to  promote  their  own  welfare." 

In  75  N.  H.  at  page  34S,  74  AO.  at  page  006 
(27  L.  R.  A.  IN.  S.]  966,  139  Am.  St.  Bep. 
718),  and  in  75  N.  H.  at  pages  351,  352,  74 
Atl.  at  page  598  (27  H  B.  A,  [N.  S.]  966,  139 
Am.  St  Bep.  718) : 

"The  authorities  are  practically  unanimous  to 
the  effect  that  the  defendant  is  liable  unless  he 
shows  a  justification." 

[B]  The  facts  show  an  interference  with 
the  plaintiffs'  right,  and  there  Is  no  evidence 
of  justification.  The  plaintiffs  have  made  out 
a  prima  fade  case,  and  their  bill  is  not  to  be 
dismissed  on  motion  in  the  nature  of  a  mo- 
tion for  nonsuit  at  law,  which  appears  to 
have  been  understood  to  be  the  effect  of  tbe 
ruling,  unless  illegal  action  in  tbe  conduct  of 
the  strike  appeared.  The  exception  is  sus- 
tained. 

L10]  The  result  on  this  point  is  not  affect- 
ed if,  as  is  claimed,  the  correct  statement 
of  the  plaintiffs'  right  is  to  be  free  from  un- 
reasonable interference  in  the  management 
of  their  business.  Tbe  interference  being 
proved,  the  "justification  may  be  found  some- 
times in  the  circumstances  under  which  it 
is  done  irrespective  of  motive,  sometimes  in 
the  motive  alone,  and  sometimes  in  the  cir- 
cumstances and  motive  combined."  Plant  v. 
Woods,  176  Mass.  492,  499,  57  N.  B.  1011, 
1014  (51  L.  B.  A,  339,  79  Am.  St  Bep.  330). 
The  test  laid  down  in  Huskle  v.  Griffin  is 
reasonable  conduct,  dependent  upon  all  the 
circumstances  of  the  case,  tbe  advantage 
and  profit  to  one,  and  the  unavoidable  injury 
to  the  other.  Horan  r.  Byrnes,  72  N.  H.  93, 
100,  54  Atl.  945,  62  U  B.  A.  602,  101  Am.  St 
Bep.  670. 

[11]  EMdence  of  motive  and  object  lies  in 
the  breasts  of  the  defendants.  If  they  re- 
fuse to  disclose,  they  must  submit  to  the 
adverse  inference  necessarily  drawn  from 
their  silence.  The  question  is  one  of  fact 
to  be  determined  as  matter  of  law  only  if  on 
the  evidence  reasonable'  men  could  come  to 
but  one  conclusion. 

[12]  The  defendants  are  called  uikhi  to 
justify  their  action.  If  on  the  whole  case 
the  burden  remains  with  the  plaintiffs  to 
establish  an  illegal  interference  with  their 
right  one  unreasonable  upon  all  the  evi- 
dence, that  does  not  destroy  thdr  prima 
facie  casa  Interference  with  the  right 
of  another  without  Justification  is  unrea- 
sonable. Whether  tbe  motive  of  the  strik- 
ers was  an  honest  eftort  to  l)enefit  them- 
selves or  a  malicious  Intent  to  Injure  the 
plaintiffs  because  they  refused  to  aid  in  com- 
pelling other  workmen  to  Join  the  defend- 
ants' union  is  a  question  of  fact  upon  which 
the  case  contains  no  evidence.  The  defend- 
ants contend  that  justification  is  to  be  found 
in  the  principle  of  competition,  citing  Pickett 
V.  Walsh.  192  Mass.  572,  78  N.  H.  753,  6  I*  B. 
A.  (N.  S.)  1067,  U6  Am.  St  Sefi.  272,  7  Ann. 


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101  ATLANTIC  REPORTBB 


(N.H. 


Gas.  638.  Bat  there  Is  no  erldmoe  of  ccMoi- 
petition  to  sustain  the  dalm.  In  the  absence 
of  evidence  of  Justification,  further  discus- 
sion of  possible  grounds  which  might  be  prov- 
ed will  not  be  undertaken. 

2.  The  second  question  raised  relates  to 
the  conduct  of  the  strike. 

[1 3]  The  plaintiffs'  counsel  asked  the  court 
to  rule  that  all  organized  picketing  Is  uulaw- 
fnl.  The  conrt  declined  to  so  rule,  but  did 
rule  that  reasonable  picketing  was  lawful; 
unreasonable,  unlawful,  and  the  plaintiffs  ex- 
cepted. 

The  term  "picketing"  la  new  in  the  law  of 
the  state.  The  only  definition  in  the  case 
Is  "picketing  by  twos,  who  parade  the  streets, 
observe  who  are  entering  and  leaving  the 
plaintiffs'  shops  in  order  that  they  may  argue 
and  persuade  them  to  Join  the  strike."  The 
allegations  of  the  bill  lead  to  the  inference 
that  picketing  may  mean  something  more 
than  peaceful  parading,  whatever  that  may 
mean.  The  dictionary  defines  "picketing"  as 
"posting  watchers  at  the  approaches  to  a 
place  of  employment  affected  by  a  strike  in 
order  to  ascertain  those  who  work  there  and 
persuade  them,  or  otherwise  influence  them, 
to  give  up  the  work."  Webst  Diet,  "pick- 
et"; K.  &  J.  Law  Diet  "picketing."  The 
cases  cited  in  the  notes,  4  L.  R.  A.  (N.  S.) 
302,  and  50  L.  B.  A.  (N.  S.)  412.  indicate 
that  the  term  may  Include  a  wide  range  of 
action.  The  material  question  is  whether  the 
acts  done  In  prosecution  of  the  strike  are 
lawful  or  unlawful,  whether  properly  de- 
scribed as  picketing  or  by  some  other  term, 
Although  the  term  la  not  found  in  the  law 
of  the  state,  P.  S.  c.  266,  S  12,  as  amended  by 
chapter  211,  Laws  1913,  and  P.  S.  c.  264,  §{ 
1,  2,  may  be  aimed  at  some  acts  Included 
within  the  term  or  naturally  resulting  from 
the  proceeding  bo  called.  The  substance  of 
the  court's  ruling  was  the  application  of  the 
test  of  reasonable  conduct  under  all  the  cir- 
cumstances. Whether  when  the  facts  are 
found  the  acts  of  which  the  plaintiffs  com- 
plain can  be  found  to  be  reasonable  in  fact 
cannot  be  determined  until  the  facts  are 
found.  If  one  may  Interfere  with  another's 
iawful  business  when  it  is  a  reasonable  thing 
to  do,  it  follows  that  he  may  do  so  in  a  man- 
ner not  unreasonable  in  fact  or  because  for- 
bidden by  legislative  mandate. 

Case  discharged.    All  concurred. 


(78  N.  H.  4S) 
KBLSEA  ▼.  PH(BNIX  INS.  CO.  «t  al. 
(Supreme  Court  of  New  Hampshire.    Coos. 
June  30,  1917.) 

1.  IKSUSARCI!  «=»235— FiBE  Insubancb— No- 
Tier  OF  Cancellation— Waivkh. 
In  an  action  on  a  fire  insurance  policy,  evi- 
dence held  sufficient  to  warrant  a  jury  finding 
tliat  insured  waived  written  notice  of  cancella- 
tion and  the  right  to  a  tender  of  the  return 
premium. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  {  507.] 


2.  INSDBANCK  «ES>229(1)— CoNDinOHS  IH  POL- 

ICT— Waives. 
The  provision  in  a  fire  policy  requiring  the 
insurer  to  give  written  notice  and  tender  re- 
turn premium  before  cancellation  was  for  bene- 
fit of  insured  and  could  be  waived  by  him. 

3.  INSURAHCE  <S=22D(1)— COHWTIOHS  IN  POL- 

lOT— Waives. 
That  the  condition  in  a  fire  policy  requiring 
notice  and  tender  of  return  premium  by  insurer 
before  cancellation  was  in  conformity  to  the 
statute  afforded  no  objection  to  its  waiver  by 
insured,  as  statutory  provisions  for  the  benefit 
of  individuals  may  be  waived. 

4.  Appeal  ano  Ebbob  (S=»1060(1)— AsexJUENT 

07  COTTNBEL— PBBJUDICIAI.  EBBOB. 

In  an  action  on  a  fire  policy,  defendants' 
counsel's  remarks  in  argument  about  plaintiff's 
witness:  "Who  is  this  Hollis  Stevens?  What 
kind  of  a  chap  is  he  to  do  business?  He  went 
in  and  trimmed  Hammond  until  he  picked  him 
dry" — were  prejudicial  and  transcended  the  lim- 
its of  legitimate  advocacy;  there  being  no  evi- 
dence to  justify  the  statements. 

[£kl.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  (  4135.] 

Exceptions  from  Superior  Court,  Ooos 
County;    Sawyer,  Judge. 

Assumpsit  by  Ira  A.  Kelsea  against  the 
Phcenix  Insurance  Company  and  another. 
Trial  by  Jury,  and  verdict  for  defendants, 
and  plaintiff  brings  exceptions.  Exceptions 
sustained. 

Assumpsit  to  recover  on  on  insurance  pol- 
icy placed  by  defendants  on  plaintiff's  saw- 
mill and  machinery.  The  policy  was  issued 
April  24,  1914,  by  Geo.  W,  Stevens  &  Son 
Company,  agents  at  Lancaster,  through  John 
H.  Finley,  their  local  agent  at  Oolebrook,  and 
was  for  one  year.  The  property  insured  was 
destroyed  by  fire  January  29,  1015.  Proof  of 
loss  was  duly  made  and  filed  with  the  defend- 
ants February  19,  1915.  No  adjustment  or 
payment  of  the  loss  has  ever  been  made  by  the 
defendants.  The  defendants  rested  their  de- 
fense upon  the  ground  that  the  policy  wbldi 
had  been  marked  "Canceled  July  18,  1914," 
was  legally  canceled  upon  that  day.  The  pol- 
icy contained  a  provision  that  It  might  be 
canceled  at  any  time  at  the  request  of  the  in- 
sured. It  also  contained  the  usual  stipula- 
tion that  the  defendants  could  cancel  the  i»ol- 
icy,  after  giving  written  notice  to  the  insured, 
and  tendering  to  him  the  return  premium; 
cancellation  to  take  effect  10  days  after  sncb 
notice. 

The  defendants  claim  that  notice  of  can- 
cellation and  payment  of  return  premium  be- 
fore cancellation  could  become  effective  had 
been  waived  by  the  plaintiff.  The  plaintifT 
denies  that  the  policy  had  ever  been  canceled, 
and  testified  that  he  left  his  insurance  pol- 
icies with  Finley,  and  that  they  never  were  In 
his  possession;  that  he  never  had  any  knowl- 
edge of  the  cancellation  of  the  policies,  an<i 
believed  them  to  be  In  force  at  the  time  tbe 
mill  was  burned.  At  the  close  of  the  evidence 
the  plaintiff  moved  for  a  Judgment  for  tbe 
amount  of  the  insurance  on  the  mill  buildins, 
and  also  for  a  verdict  as  to  the  cancellation. 


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363 


on  the  ground  tbat  a  stun  equal  to  the  rebate 
had  never  been  paid  or  legally  tendered  to 
the  insnred.  These  motions  were  denied,  sub- 
ject to  the  plalntilTB  exceptions.  The  plain- 
tiff also  excepted  to  the  Instructions  of  the 
court,  and  to  remarks  of  defendants'  counsel 
in  his  argument  to  the  Jury. 

Jason  H.  Dudley,  of  Colebrook,  and  Gobs 
&  James,  of  Berlin,  for  plaintiff.  Drew, 
ShurtleflF,  Morris  &  Oatces,  of  Lancaster,  Blch 
&  Marble,  of  Berlin,  and  Leacn  &  Leach,  of 
FranUin,  for  defendants. 

PLI7MMER,  J.  The  exceptions  of  the 
plaintiff  to  the  denial  of  his  motions  for  a 
verdict  and  Judgment  cannot  be  sustained. 
The  defendants'  evidence  tended  to  prove 
that  Flnley,  who  represented  the  defendants, 
notified  the  plaintiff  that  the  insurance  oom- 
panles  would  not  continue  to  carry  the  in- 
surance on  his  mill  because  it  was  not  run- 
ning and  requested  a  return  of  his  policies; 
that  Flnley  afterwards  saw  the  plaintiff  in 
Oolebrook,  and  asked  him  If  he  had  brought 
the  policies,  the  plaintiff  replied  that  he  had 
not,  and  Inquired  of  Flnley  In  reference  to 
writing  to  some  one,  and  Flnley  said  that  he 
had,  but  that  they  (referring  to  the  insurance 
companies)  would  not  carry  the  insurance  un- 
less- the  mill  was  ruanlng;  that  on  Jnly  17, 
1914,  the  day  before  the  defendants'  policy 
was  marked  canceled,  the  plaintiff  came  into 
Finley's  office  at  Colebrook,  and  gave  him  the 
policy  in  question,  together  with  other  pol- 
icies on  his  mill,  and  said,  "Here  Is  these 
policies;"  that  Flnley  told  the  plaintiff  there 
would  be  a  rebate  on  the  policies,  but  that  he 
did  not  know  at  that  time  how  much;  that 
tliere  would  be  a  credit  come  back  in  the  next 
month's  account,  and  whenever  a  credit  came 
back  to  come  In  and  they  would  fix  up;  that 
plaintiff  did  not  make  any  objection  to  the 
arrangement  until  after  the  fire;  that  the 
plaintiff  never  came  to  Flnley  to  fix  up,  and 
Flidey  did  not  adjust  the  matter  with  him  be- 
fore the  fire;  that  the  plaintiff  stated  in  the 
presence  of  three  wlteesses  at  Colebrook  in 
the  summer  of  1914  that  he  had  bad  the  In- 
carance  policies  on  his  mill  canceled. 

[1]  This  and  other  evidence  of  the  defend- 
ants would  warrant  the  Jury  in  finding  that 
the  plaintiff  brought  his  Insurance  policies  on 
Ills  mill  and  machinery  to  Flnley  for  the  pur- 
pose of  cancellation,  and  that  there  was  an 
understanding  between  them  that  the  policies 
should  be  canceled,  and  that  the  plaintiff 
agreed  and  understood  that  the  rebate  on  his 
premium  was  not  to  be  paid  to  him  before  the 
cancellation  became  effective,  but  that  he  was 
to  adjust  the  matter  with  Flnley  after  he  re- 
ceived a  statement  of  the  amount  of  the  re- 
bate. In  other  words,  the  testimony  was 
enfllclent  to  Justify  the  Jury  In  finding  that 
ibe  plaintiff  waived  the  written  notice  he  was 
entltied  to  in  case  the  defendants  desired  to 


cancel  his  poUcy,  and  that  he  also  waived  the 
right  to  the  tender  of  the  return  premliun. 
The  plaintiff  requested  the  court  to  instruct 
the  Jury  that  "In  order  for  the  Phoenix  In- 
surance Company  to  cancel  its  policy  of  in- 
surance with  Ira  Kelsea,  the  company  or  its 
agents  must  first  give  a  written  notice  to  the 
Insured  notifying  him  that  they  desire  to  can- 
cel said  policy,"  and  that  "to  cancel  such 
policy  the  company  or  its  agents  must  pay  or 
tender  to  the  Insured  a  sum  equal  to  the  re- 
bate or  unearned  premium."  The  court  read 
these  requests  to  the  Jury  and  stated  that 
they  correctly  expressed  the  law,  if  each  par- 
ty had  Insisted  upon  the  compliance  with  the 
strict  letter  of  the  law;  but  he  told  the  Jury 
that  the  parties  to  the  policy  had  power  to 
waive  these  provisions  in  relation  to  cancel- 
lation, and  instructed  them  in  substance  that 
If  the  policy  was  canceled  after  the  plaintiff 
onderstandlngly  surrendered  his  policy  for 
the  purpose  of  cancellation,  and  agreed  with 
Wnley  that  he  should  receive  the  return  pre- 
mium, and  adjust  that  matter  with  the  plain- 
tiff later,  then  that  would  be  a  legal  cancel- 
lation. 

[2)  The  plaintiff  excepted  to  the  Instruc- 
tions of  the  court  relating  to  waiver.  There 
was  no  error  In  the  instructions.  The  plain- 
tiff contends  that,  as  a  matter  of  law,  he 
could  not  waive  the  provisions  In  the  policy 
In  reference  to  notice  of  cancellation  and  pay- 
ment of  the  return  premium.  This  conten- 
tion cannot  be  malntolned. 

[3]  The  stipulations  in  the  policy  relating 
to  notice  of  cancellation  and  payment  of  re- 
turn premiums  were  for  the  benefit  of  the 
plaintiff,  and  no  reason  is  perceived  why  he 
could  not  waive  them,  the  same,  as  It  has 
been  held,  that  insurance  companies  could 
waive  provisions  In  policies  that  were  for 
their  benefit  Perry  v.  Insurance  Co.,  67  N. 
H.  201,  296,  33  AH.  731,  68  Am.  St.  Hep.  668; 
Gleason  v.  Insurance  Co.,  73  N.  H.  683,  64  Atl. 
187;  Levi  V.  Insurance  Co.,  76  N.  H.  551,  78 
Ati.  617;  Flynn  v.  Insurance  Co.,  77  N.  H. 
431,  92  Atl.  737.  The  fact  that  the  condition 
in  the  policy  relative  to  cancellation  is  In 
conformity  to  the  statute  of  the  state  affords 
no  objection  to  its  waiver  by  the  plaintiff. 
"Statutory  provisions  for  the  benefit  of  in- 
dividuals may  be  waived  by  those  for  whose 
benefit  they  are  intended."  Battle  ▼.  Knapp, 
60  N.  H.  361.  The  principle  of  waiver  has  a 
much  broader  application  than  the  require- 
ments of  this  case  demand.  "The  benefit  of 
statotory  and  constitutional  provisions,  both 
In  dvll  and  criminal  Jurisprudence,  may  be 
waived  by  a  party  interested."  State  v.  Al- 
bee,  61  N.  H.  423,  428,  60  Am.  Rep.  326.  In 
that  case  It  was  decided  that  the  right  of  a 
respondent  under  the  BUI  of  Rights  to  be 
tried  in  the  county  where  the  crime  was  com- 
mitted may  be  waived.  Numberless  cases  in 
this  and  other  Jurisdictions  might  be  cited 
where  the  doctrine  of  waiver  has  been  ap- 


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piled,  and  there  Is  no  question  but  tbat  tbe 
plaintiff  could  exercise  It  In  this  case. 

[4]  Counsel  for  defendants  In  argument  to 
the  jury  said:  "Who  Is  this  Hollls  Stevens? 
What,  kind  of  a  chap  la  he  to  do  business? 
He  went  In  and  trimmed  Hammond  until  he 
picked  him  dry."  To  these  remarks  the  plain- 
tiff excepted.  Hollls  Stevens  was  a  witness 
for  the  plaintiff,  and  had  given  material  tes- 
timony in  the  case.  There  was  no  evidence 
to  Justify  this  statement  Hammond  and 
Stevens  had  been  partners,  but  there  was  no 
testimony  that  Stevens  had  cheated  Ham- 
mond, and  It  cannot  be  fairly  Inferred  from 
the  evidence.  This  unwarrantable  argument 
was  for  tbe  purpose  of  convincing  the  Jury 
that  one  of  the  plaintiff's  material  witnesses 
was  a  dishonest  man,  and  that  his  testimony 
was  not  entitled  to  credit  It  was  prejudi- 
cial, and  transcended  the  limits  of  legitimate 
advocacy.  Robertson  r.  Madison,  67  N.  H. 
206,  28  AtL  777.  Whenever  counsel  in  argu- 
ment goes  outside  of  the  evidence,  and  makes 
statements  that  are  material  and  prejudicial 
to  the  case,  the  verdict  if  In  favor  of  his 
client  must  be  set  aside,  unless  he  immedi- 
ately retracts  them,  requests  that  the  Jury  be 
instructed  to  disregard  them,  and  obtains  a 
finding  by  the  presiding  Justice  that  "the  er- 
ror was  cured  and  did  not  affect  the  result." 
Greenfield  v.  Kennett  69  N.  H.  419,  45  Atl. 
233;  Story  v.  Railroad,  70  N.  H.  364,  376, 
48  Atl.  288;  Hallock  v.  Young,  72  N.  H.  416, 
422,  57  Atl.  236.  There  being  no  retraction  of 
the  objectionable  remarks,  nor  finding  by  tbe 
court  in  reference  to  them,  the  verdict  can- 
not be  permitted  to  stand. 

Exceptions  to  denial  of  motions  for  ver- 
dict and  Judgment  and  to  instructions  over- 
ruled; exception  to  argument  sustained; 
verdict  set  aside;  new  trial  granted.  All 
ccmcurred. 


(78  N.  H.  tm 

liAOOSS  et  «1.  V.  TOWN  OP  LEBANON  et  aL 

(Supreme  Court  of  New   Hampshire,   May   1. 
1917.) 

1.  DiscovKBT  «=>13— Pboductior  of  SKECOa 

AND  PHOTOOBAPH. 

That  defcndnats  made  a  sketch  and  photo- 
graph of  the  place  and  machinery  after  injury 
to  their  employe  did  not  relieve  them  from  the 
duty  of  producing  them  on  bill  of  discovery  by 
him. 

[Ed.  Note. — For  other  cases,  see  Discovery, 
Cent  Dig.  S  14.] 

2.  DiSCOVBBT  <®=>13— PBODUCTION  OF  SKETCH 
AND   PhOTOGBAPH. 

That  defendants  were  under  no  duty  to  their 
injured  employe  to  make  a  sketch  and  photo- 
graph of  the  place  and  machinery  did  not  re- 
Ueve  them  from  the  duty  of  producing  such 
sketch  and  photograph,  which  they  in  fact  made 
after  the  accident  if  these  were  relevant  to 
plaintiff's  cause  of  action  and  their  production 
would  tend  to  promote  discovery  of  the  truth. 

[Ed.  Note. — For  other  cases,   see  Discovery, 
CJent  Dig.  i  14.] 


3.  DiscovEBT  «=9l3— PBODtronoR  OF  Writ- 
ings. 

That  defendant  mnnicipality  reduced  the 
evidence  as  to  injury  of  its  employe  to  writing 
no  more  relieved  it  from  discovering  it  upon 
his  bill  of  discovery  than  the  fact  that  an  in- 
dividual committed  the  evidence  to  memory  for 
the  purpose  of  enabling  him  to  defend  any  suit 
which  might  be  brought  would  relieve  him  from 
the  duty  of  discovering  it 

[Ed.  Note.— For  other  cases,  see  Discovery, 
Cent  Dig.  i  14.] 

4.  DiscovEBY  <@=>13— Defenses. 

That  documents  material  to  a  prospective 
suit  are  in  posses^sion  of  defendant's  counsel 
does  not  help  it  on  a  bill  of  disooveiy  for  such 
documents. 

[Ed.   Note.— For  other  cases,  sea  Discovery, 
Cent  Dig.  |  14.] 

5.  DiSCOVEBT    $=38— PBODUonoiT    OF    Doou- 

ICENTS. 

While  defendant  cannot  be  compelled  to 
discover  either  facts  or  documents  relevant  only 
to  his  defense,  he  can  be  compelled  to  discover 
any  facts  or  documents  within  his  knowlecjge 
or  possession  that  are  relevant  to  plaindf  s 
cause  of  action. 

[Ed.  Note.— For  other  cases,  see  Discovery, 
Cent  Dig.  §§  8,  9.] 

6.  DiscovEBY   €=8— Pboductioh   of  Writ- 
ings. 

When  a  writing  evidences  facts  on  which 
both  parties  rely,  either  may  call  for  its  dis- 
covery. 

[Ed.   Note.— For  other  cases,  see  Discovery, 
Cent.  Dig.  H  8,  0.] 

7.  DISCOVEBY  «=»95— Under  Statittoby  Pbo- 
VISIONS— Pabties. 

Under  Gen.  St.  1867,  c.  209,  {{  13,  14, 
providing  that  no  person  shall  be  excused  from 
testifying  by  his  interest,  liiit  that  no  party 
shall  be  compelled  in  testifying  to  disclose  the 
names  of  the  witnesses  by  whom  nor  the  man- 
ner in  which  be  proposes  to  prove  his  case, 
a  party  to  an  action  stands  in  exactly  the  samo 
position  as  any  other  witness,  and  can  be  com- 
pelled to  answer  any  question  or  produce  any 
writing  such  a  person  can  be  compelled  to  an- 
swer or  produce,  except  that  he  cauuot  be  com- 
pelled to  disclose  the  names  of  the  witnesses  by 
whom  nor  the  manner  in  which  he  proposes 
to  prove  his  case. 

[Ed.   Note.— For  other  cases,  see  Discovery, 
Cent  Dig.  |  121.] 

8.  DiscovBBY  «=»84  —  Fbodxjctior  of  Wbit- 

INOS. 
Since,  under  sudi  statutes,  a  party  can  be 
compelled  to  produce  material  writings  at  the 
trial,  and  the  case  may  then  be  continued  to 
give  plaintiff  time  to  examine  them  to  prepare 
his  case  for  trial,  the  court  may  on  motion  com- 
pel defendant  to  produce  them  In  advance  of  the 
trial. 

[Ed.  Note.— For  other  coses,  see  Discovery, 
Cent  Dig.  i  108.] 

9.  Tbiai,  c@=>l8— Pbooedube. 

Outside  of  a  few  familiar  situations  in 
which  the  procedure  is  fixed  by  statute,  the  test 
usually  applied  to  determine  questions  of  ^)ro- 
cedure  is  to  inquire  as  to  what  justice  requires 
in  the  situation. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i§  37.  42%.] 

10.  dlscovebt   «=>97(1)  —  peod0otior   0» 
Wbitingb. 

If  a  bill  of  discovery  be  considered  as  a 
motion  in  an  action  at  law,  the  test  to  deter- 
mine whether  defendant  should  be  compelled 
to  produce  written  documents  at  the  time  of 


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LACOSS  V.  TOWN  OF  LEBAKON 


365 


Bach  motion  la  to  inquire  whether  that  ia  nec- 
essary to  do  justice  between  the  parties. 

[Ed.  Note.— Fbr  other  cases,  see  Discovery, 
Cent  Dig.  f  $  124-127.] 
11.  Appeal  and  Erkob  «=s»1010(1)— Retisw— 

PbODUCTION  of  DOCtTMENTB. 

The  trial  court's  decision,  on  motion  to  com- 
pel defendant  to  produce  documents,  that  it  is 
Just  to  compel  defendant  to  do  so,  is  final,  if 
there  is  any  evidence  to  warrant  it. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  ff  3979-3881,  4024.] 

Exceptions  from  Superior  Court,  Grafton 
County. 

Bill  for  discovery  by  Andrew  Lacoss  and 
others  against  the  Town  of  Lebanon  and  oth- 
ers. Order  for  plaintiffs,  and  defendants  ex- 
cept   Exceptions  overruled. 

On  hearing  the  court  found  tbat  tbe  plain- 
tiff, an  employ^  of  the  defendant  town,  was 
Injured  by  tbe  breaking  of  a  hoisting  appara- 
tus. Soon  after  the  accident  tbe  defendant's 
officers  caused  a  sketch  of  the  place  where  the 
accident  happened  to  be  made,  and  a  photo- 
graph of  the  hoisting  api>aratus  to  be  taken, 
and  the  prayer  of  the  bill  is  that  the  de- 
fendant be  compelled  to  discover  the  sketch 
and  photograph.  The  conrt  found  that  the 
facts  they  evidence  are  material  to  the 
plalntitTs  cause  of  action  and  that  justice  re- 
quires that  they  be  produced  at  this  time, 
and  ordered  tbe  defendant  to  discover  them, 
and  It  excepted. 

Hollls  &  Murchle,  of  Concord,  for  plain- 
tiffs. Martin  4  Howe,  of  Concord,  for  de- 
fendants. 

TOUNQ,  X  [1-3]  The  defendant  contends 
that  it  cannot  be  compelled  to  produce  the 
sketdi  and  photograph  at  this  time,  because 
it  caused  them  to  be  made  after  the  accident 
happened,  to  enable  It  to  defend  against  any 
SDit  that  might  be  brought  against  it  be- 
cause of  the  accident.  The  fact  the  defendant 
made  the  sketch  and  photograph  after  the  ac- 
cident happened  will  not  relieve  it  from  the 
duty  of  producing  them;  neither  will  the  fact 
that  the  defendant  owed  the  plaintiff  no  duty 
to  make  them,  if  they  are  relevant  to  the 
plaintiff's  cause  of  action,  and  their  pro- 
duction at  this  time  wUl  tend  to  promote 
the  discovery  of  the  trutlL  If  it  would,  there 
would  be  but  few  cases  in  which  a  party 
conid  be  compelled  to  ijroduce  material  docu- 
ments. So  far  as  appears,  the  sketch  and 
photograph,  instead  of  being  communications 
from  the  defendant  to  its  counsel,  were  pre- 
pared before  the  plaintiff  thought  of  this  suit, 
to  perpetuate  the  evidence  of  the  situation 
as  it  existed  at  the  time  of  the  accident 
But,  however  tbat  may  be,  the  fact  tbe  de- 
fendant reduced  the  evidence  to  writing  no 
more  relieves  it  from  discovering  It  than  tbe 
fact  that  an  individual  committed  the  evi- 
dence to  memory  for  the  purpose  of  enabling 
him  to  defend  any  suit  that  might  be  brought 
against  him  would  relieve  him  from  the  duty ' 


of  discovering  it.  In  short,  the  sketch  and 
photograph  are  not  communications  from  tbe 
defendant  to  its  counsel,  but  documents  that 
it  prepared  to  perpetuate  the  evidence  of  the 
facts  on  which  it  relies  as  a  defense  to  tills 
suit. 

[4,  6]  The  mere  fact  these  documents  are 
now  in  the  possession  of  the  defendant's 
counsel  does  not  help  it,  for  if  the  defend- 
ant can  be  compelled  to  discover  them  its 
counsel  also  can  be  compelled  to  produce 
them.  In  other  words,  a  party  cannot  escape 
his  duty  of  discovering  material  documents 
by  merely  handing  them  to  his  attorney.  Pe- 
tition of  Snow,  75  N.  H.  7,  70  Atl.  120;  4 
Wig.  Ev.  {  2307.  The  question,  therefore,  U 
whether  a  party  can  be  compelled  to  dis- 
cover material  documents  when  their  pro- 
duction Is  essential  to  the  discovery  of  the 
truth.  The  test  to  determine  tbat  question 
is  to  inquire  whether  tbe  facts  they  evidence 
are  relevant  to  the  plalntifTs  cause  of  action, 
or  whether  they  are  merely  matters  of  de- 
fense; for,  while  tbe  defendant  cannot  be 
compelled  to  discover  ^ther  facts  or  docu- 
ments  that  are  only  relevant  to  its  defense, 
it  can  be  compelled  to  discover  any  facts 
within  the  knowledge,  information,  or  belief 
of  its  officers,  or  any  documents  in  its  pos- 
session, that  are  relevant  to  the  plalntifTs 
cause  of  action. 

[S]  The  fact  the  sketch  and  photograph 
evidence  facts  on  which  the  defendant  also 
relies  is  not  enough  to  excuse  it  from  dis- 
covering them,  for  when  a  writing  evidences 
facts  on  which  both  parties  rely  either  may 
call  for  its  discovery.  Reynolds  v.  Company, 
71  N.  H.  332,  51  Atl.  1075,  57  L.  R.  A.  949, 
93  Am.  St  Rep.  635.  The  plainUff  must 
show  tbat  tbe  defendant's  fault  caused  his 
injury,  and  it  Is  dear  that  to  do  that  he 
must  reproduce  tbe  situation  as  it  existed  at 
the  time  of  tbe  accident,  and  It  is  obvious 
that  be  can  get  the  necessary  facts  fcom  the 
sketch  and  photograpli.  There  is,  however, 
another  way  of  compelling  a  party  to  produce 
material  writings,  when  their  production  is 
necessary  to  the  discovery  of  the  truth,  that 
Is  more  in  line  with  modem  ideas  of  ef- 
flciency  tlian  a  bill  of  discovery. 

Previous  to  1857  neither  a  party  to,  nor 
one  Interested  in  the  event  of,  a  suit  could  be 
permitted  or  compelled  to  testify ;  but  in  that 
year  a  law  was  passed  which  provided  that 
"no  person  shall  be  excused  or  excluded  as 
a  witness  In  any  civil  suit  or  proceeding  at 
law  or  in  equity,  by  reason  of  interest  in  the 
event  of  the  same  as  a  party  or  otherwise," 
with  certain  exceptions  that  are  immaterial 
in  so  far  as  any  questions  before  this  court 
are  concerned.  Laws  1857,  c.  1952,  {  1. 
While  this  act  put  an  interested  party  on  the 
same  footing  as  any  one  else  In  so  far  as 
calling  him  as  a  witness  was  concerned,  it 
made  no  provisions  for  taking  his  deposi- 
tions;  but  the  next  year  an  act  was  passed 


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which  remedied  that  defect.  This  act  con- 
tained the  proTlso  that  the  party  giving  a 
deposition  "shall  not  be  obliged  to  answer 
any  questions,  or  produce  any  document,  the 
answering  or  producing  of  which  would  tend 
to  criminate  himself,  or  disclose  his  title 
to  any  property  the  title  whereof  Is  not  ma- 
terial to  the  action  In  the  course  of  which  he 
is  interrogated,  or  to  disclose  the  names  of  the 
witnesses  by  whom,  or  the  manner  In  which,  he 
proposes  to  prove  his  own  case."  Laws  1858,  c. 
2000,  i  1.  It  is  clear  that,  while  these  acts 
(Laws  1867,  c  1952,  {  1 ;  Laws  1858,  c.  2090,  § 
1)  were  in  force,  a  party  who  was  called  as 
a  witness  could,  and  one  who  was  glviiig  a 
deposition  could  not,  be  compelled  to  pro- 
duce material  writings ;  and  that  Is  true  to- 
day, for,  while  certain  material  changes  were 
made  when  these  acts  were  Incorporated  In 
the  Revision  of  1867,  there  is  nothing  to 
show  an  intention  on  the  part  of  the  Leg- 
islature to  relieve  a  party  who  Is  called  as 
a  witness  from  producing  any  writing  that 
any  other  witness  would  be  compelled  to  pro- 
duce. These  acts  appear  in  the  revision  as 
G.  S.  c.  20»: 

"Sec.  13.  No  person  shall  be  excused  or  ex- 
dudod  from  testifying  or  giving  his  deposition 
in  any  civil  cause  by  reason  of  his  interest 
therein,  as  a  party  or  otherwise. 

"Sec.  14.  No  party  shall  be  compelled.  In  tes- 
tifying or  giving  a  deposition,  to  disclose  the 
names  of  the  witnesses  by  whom  nor  the  man- 
ner in  which  ho  proposes  to  prove  his  [own] 
case,  nor,  in  Kiving  a  deposition,  to  produce  any 
writing  which  is  material  to  his  case  or  de- 


— and  are  still  parts  of  the  law  of  this  state. 
O.  L.  c.  228,  if  13,  14;  P.  S.  c.  224,  {f  13,  14. 
All  the  evidence,  therefore,  the  history  of 
this  legislation,  as  well  as  the  language  the 
Legislature  used,  tends  to  the  conclusion  that 
a  party  to  an  action  stands  in  exactly  the 
same  position  as  any  other  witness,  except 
that  he  cannot  be  compelled  to  dUclose  the 
names  of  the  witnesses  by  whom  nor  the 
manner  in  which  he  proposes  to  prove  his 
case.  A  little  thought  will  show  why  the 
Legislature  provided  that  a  party  may  be 
compelled  to  produce  a  writing  when  he  is 
called  as  a  witness  that  he  would  be  excused 
from  producing  If  he  were  giving  a  deposi- 
tion. 

The  office  of  evidence  is  to  enable  the  tri- 
er of  facts  to  discover  the  truth  in  resi)ect  to 
the  matters  in  dispute  between  the  parties, 
and  experience  has  shown  that  compelling  a 
witness  to  produce  a  material  writing  at  a 
given  stage  in  the  proceedings  sometimes 
tends  to  prevent  the  discovery  of  the  truth. 
Since  this  is  so,  the  question  of  whether  pro- 
ducing a  writing  at  a  given  time  will  prevent 
or  promote  the  discovery  of  the  truth  should 
be  decided  before  a  party  is  compelled  to 
produce  it  The  court  is  the  only  tribunal 
that  has  Jurisdiction  of  that  question,  and 
as  a  deposition  is  not  taken  in  its  presence 
the  Legislature  saw  fit  to  relieve  parties  giv- 
ing their  depositions  from  producing  writings 
ot  which  they  rely  to  prove  their  cases.    As 


that  reason  does  not  exist  in  the  case  of  a 
witness,  the  Legislature  placed  a  party  who 
is  called  as  a  witness  on  the  same  footing  as 
every  one  else  in  so  far  aa  the  production  of 
documents  is  concerned. 

[7]  It  follows  that,  while  a  party  cannot 
be  compelled  to  produce  material  writings 
when  he  is  giving  a  deposition,  he  may  be 
compelled  to  produce  them  when  he  is  called 
as  a  witness,  whenever  the  court  finds  that 
that  win  promote  the  discovery  of  the  truth. 
In  a  word,  when  a  party  is  called  as  a  wit- 
ness, he  cannot  be  compelled  to  give  the 
names  of  the  witnesses  by  whom  nor  the  man- 
ner in  which  he  proposes  to  prove  his  case, 
but  in  all  other  respects  he  stands  the  same 
as  one  who  Is  not  a  party  (Whitdier  v.  Da- 
vis, 70  N.  H.  237,  46  Atl.  468),  and  can  be 
compelled  to  answer  any  question  or  produce 
any  writing  that  such  a  person  can  be  com- 
pelled to  answer  or  produce  (Railroad  r. 
State,  75  N.  H.  613,  77  AU.  996,  31  L.  R.  A. 
[N.  S.]  639,  Ann.  Cas.  1912A,  382).  There  U 
nothing  In  the  opinion  In  Wentworth  v.  Mc- 
Duffle,  48  N.  H.  402,  in  conflict  with  this 
view  of  the  court's  power  to  compel  the 
production  of  material  writings,  for  that 
case  relates  to  the  production  of  documents 
without  reference  to  their  competency  as 
evidence  and  is  based  on  the  roles  of  the 
common  law.  and  not  on  Q.  S.  c.  209,  ff 
13, 14. 

[t,  9]  Since  a  party  can  be  compelled  to 
produce  material  writings  whenever  the 
court  finds  that  producing  tfaem  will  pro- 
mote the  discovery  of  the  truth,  the  court 
can  compel  the  defendant's  ofiBcers  to  pro- 
duce the  sketch  and  photograph  when  the 
case  comes  to  trial,  and  then  continue  the 
case  to  give  the  plaintiff  time  to  examine 
them,  if  It  finds  that  that  is  reasonably  nec- 
essary to  enable  him  to  prepare  his  case  for 
trial.  Since  this  is  so,  that  Is,  since  the 
court  can  continue  the  case  after  it  compels 
the  defendant's  officers  to  produce  the  sketch 
and  photograph,  if  it  finds  that  justice  re- 
quires It,  or  that  everything  considered,  that 
Is  the  reasonable  thing  to  do,  It  can,  on  mo- 
tion, compel  the  defendant's  officers  to  pro- 
duce them  in  advance  of  the  trial,  unless 
there  Is  some  statute  of  this  state  or  rule  of 
procedure  which  forbids  it  There  is  no 
statute  wbicb  provides  either  in  terms  or 
by  implication  that  a  party  cannot  be  com- 
pelled to  produce  material  writings  in  ad- 
vance of  the  trial,  when  that  is  necessary  to 
prevent  injustice;  and  it  is  almost  true  to 
say  that  the  only  common-law  rule  of  pro- 
cedure that  is  enforced  in  this  Jurisdiction  Is 
the  one  which  makes  it  the  duty  of  the  court, 
in  conducting  trials,  to  do  whatever  is  rea- 
sonably necessary  to  do  Justice  between  the 
parties,  for  notwithstanding  the  question  of 
the  result  any  given  procedure  will  produce 
is  one  of  fact,  pure  and  simple.  It  used  to  be 
the  custom  to  formulate  rules  for  deciding 
all  such  questions,  but  for  nearly  half  a 
century  the  practice  of  deciding  them  as 


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N.  JJ        LONG  DOCK  CX),  t.  STATE  BOARD  OF  TAXES  AND  ASSESSMENT 


367 


otlier  questions  of  fact  are  decided  bas  been 
growing,  until  now  It  Is  fair  to  say  tbat,  out- 
side of  a  few  familiar  situations  In  which 
the  procedure  Is  fixed  by  statute,  the  test 
usually  applied  to  determine  questions  of 
procedure  Is  to  Inquire  as  to  what  Justice  re- 
quires In  that  situation.  Tlnkham  t.  Rail- 
road, 77  N.  H.  Ill,  88  Atl.  709;  CJommon- 
wealth  Trust  Co.  v.  Salem,  77  N.  H,  146,  89 
Atl.  452;  Whltcher  t.  Association,  77  N.  H. 
405,  92  Atl.  735;  Wheeler  v.  C!ompany,  77 
K.  H.  551,  553,  94  Atl.  265 ;  Sanborn  v.  Rail- 
road, 76  N.  H.  65,  79  Atl.  642;  Day  t.  Wash- 
bum,  76  N.  H.  203,  81  Atl.  474;  Glover  v. 
Baker,  76  N.  H.  261,  81  Atl.  1081 ;  Moore  v. 
Company,  74  N.  H.  47,  64  Atl.  1099;  Meloon 
V.  Read.  73  N.  H.  153,  59  Atl.  946;  Qerrish 
v.  Whitfield,  72  N.  H.  222,  55  Atl.  651 ;  Sau- 
cier V.  Mills,  72  N.  H.  292,  56  AU.  545;  Pat- 
tee  V.  Whltcomb,  72  N.  H.  249,  56  Atl.  459; 
Keenan  v.  Perrault,  72  N.  H.  426,  57  Atl, 
335;  State  v.  Sunapee  Dam,  72  N.  H,  114, 
131.  55  Atl.  899;  Stone  v.  Mills,  71  N.  H. 
288,  52  Atl.  119;  Marden  v.  Company,  70 
X.  H.  269.  48  Atl.  282;  Wilcox  v.  Buslel,  70 
N.  H.  626,  47  Atl.  703;  Smith  y.  Bank,  69 
N.  H.  254.  45  Atl.  1082;  Tripp  t.  Company, 
e»  N.  H.  233,  45  Atl.  746;  Gregg  ▼.  Thurber, 
69  N.  H.  480,  45  Atl.  241;  Johnson  v.  Asso- 
ciation, 08  N.  H.  437,  36  Atl.  13,  73  Am.  St. 
Rep.  610;    Martin  v.  Wiggln,  67  N.  H.  196, 

29  Atl.  450;  Crlppen  v.  Rogers,  67  N.  H.  207, 

30  Aa.  346,  25  U  R.  A.  821;  Tucker  v.  Chl<i, 
67  N.  H.  77,  37  Atl.  672;  Tucker  v.  Lake,  67 
N.  H.  193,  29  Atl.  406;  Meredith  t.  Company, 
67  N.  H.  450,  39  Atl.  330;  Mead  t.  Welcb, 
67  N.  H.  341,  39  Atl.  370;  Hlckey  v.  Dole,  66 
N.  H.  612,  31  Atl.  900;  Sleeper  v.  Kelley,  65 
N.  H.  206,  18  AU.  718;  Joyce  v.  O'Neal,  64 
N.  H.  91,  6  Atl.  33;  Boody  v.  Watson,  64  N. 
H,  162,  171,  9  Atl.  791;  HaverhUl  v.  Hale, 
64  X.  H.  406,  14  Atl.  78;  Brooks  v.  Howlson, 
63  N.  H.  382;  Ousbiiig  v.  Miller,  62  N.  H. 
617;  Clark  v.  Caark,  62  N.  H.  267;  Metcalf 
▼.  Gllmore,  59  N.  H.  417,  47  Am.  Rep.  217. 

[10,11]  If,  therefore,  this  bill  Is  considered 
as  a  motion  In  the  action  at  law,  the  test  to 
determine  wbethw  the  defendants  should  be 
compelled  to  produce  the  sketch  and  photo- 
graph at  this  time  la  to  Inquire  whether  that 
Is  necessary  to  do  justice  between  the  par- 
ties. Consequently  the  only  question  of  law 
raised  by  tlie  defendant's  exertion  to  the 
court's  finding  tbat  It  is  Just  for  the  defend- 
ant to  produce  tbe  sketch  and  photograph, 
at  this  time,  Is  whether  there  is  any  evidence 
to  warrant  It;  It  Is  enough,  In  so  far  as  that 
<luestion  Is  concerned,  to  say  that  It  cannot 
be  said  there  Is  no  such  evidence. 

Defendant's  exception  overruled. 


(to  N.  J.  lAW,  701) 

LONG  DOCK  CO.  ▼.  STATE  BOARD  OP 

TAXES  AND  ASSESSMENT  et  «L 

(No.  48.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

May  24,  1917.) 

Appeal  ano  Ebbob  *=j1094(1)  —  Rbview  — 

supbxhs   codbt    flndino. 
Where  there  is  evidence  to  support  finding 
of  facts  by  the  Supreme  Court,  siicn  finding  is 
not  reviewable  in  the  Court  of  Errors  and  Ap- 
peals. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Gent  Dig.  §§  4322,  4323.] 

Appeal  from  Supreme  Court. 

Certiorari  by  the  liOng  Dock  Company 
against  the  State  Board  of  Taxes  and  Assess- 
ment and  others  to  review  assessment  of 
second  class  railroad  property.  From  Judg- 
ment of  the  Supreme  Court  (89  N.  J.  Law,  108, 
97  Atl.  900),  prosecutor  appeals.    Affirmed. 

Collins  &  Corbln,  of  Jersey  City,  for  appel- 
lant. John  W.  Wescott,  Atty.  Gen.,  John 
Bentley,  of  Jersey  City,  and  John  B.  Har- 
din, of  Newark,  for  appellees. 

PER  CURIAM.  Legal  questions  were  first 
dealt  with  in  the  opinion  of  Mr.  Justice 
Parker  In  the  court  below,  so  as  to  lay  a 
foundation  for  the  consideration  of  the  facts, 
and  those  questions  were,  in  our  opinion, 
rightly  decided.  As  there  was  evidence  to 
support  the  finding  of  facts  made  by  the  Su- 
preme Court,  that  finding  is  not  reviewable 
In  this  court. 

The  Judgment  under  review  will  be  af- 
firmed. 

Note. — In  the  companion  cases  (Nos.  48,  60, 
and  51,  101  Atl.  307,  3(J8)  memoranda  to  be 
filed  stating  Judgments  affirmed,  for  reasons 
given  In  above  per  curiam. 

""^'^     (90  N.  J.  Law.  702) 

LONG   DOCK   (X).   v.    STATE   BOARD  OF 

TAXES  AND  ASSESSMENT  ct  aL 

(No.  49.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

May  24,  1917.) 

Appeal  from  Supreme  Court. 

Certiorari  by  the  Ix>ng  Dock  (Company  against 
the  State  Board  of  Taxes  and  Assessment  and 
others  to  review  assessment  of  second  class 
railroad  property.  From  judgment  of  the  Su- 
preme Court  (89  N.  J.  Law,  106,  07  AU.  900), 
prosecutor  appeals.    AfiSrmed. 

Ollins  &  Corbin.  of  Jersey  City,  for  appel- 
lant John  W.  Wescott,  Atty.  Gen.,  John 
BenUey,  of  Jersey  City,  and  John  B.  Hardin, 
of  Newark,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
will  be  affirmed  for  the  reosons  given  In  the 
per  curiam  in  Long  Dock  Ck>.  v.  State  Board 
of  Taxes  and  Assessment,  etc.  (No.  48  of  the 
present  term  of  this  court)  101  AU.  367. 


«S9For  other  coaea  see  urn*  topic  aod  KET-NUMBER  In  all  K«r-Numbar*d  Ditwti  and  IndtXM 


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868 


101  ATLANTIC  EEPORTEB 


(N.3. 


(90  N.  J.  Law,  701) 

LONG  DOCK  CO.  r.  STATE  BOARD  OF 

TAXES  AND  ASSESSMENT  et  aL 

(No.  50.) 

(Court  of  Errors  and  Appeals  of  Now  Jersey. 

May  24,  1917.) 

Appeal  from  Supreme  Court. 

Certiorari  by  the  lyong  Dock  Company  Bsrainst 
the  State  Board  of  Taxes  and  Assesgmout  and 
others  to  review  assessment  of  second  class 
railroad  property.  From  judgment  of  the  Su- 
preme Court  (89  N.  J.  Law,  108,  97  Atl.  900), 
prosecutor  appeals.    Affirmed. 

Collins  &  Corbin.  of  Jersey  Oty,  for  appel- 
lant. John  W.  Wescott,  Atty.  Gen.,  John  Bent- 
ley,  of  Jersey  City,  and  John  It.  Hardin,  of 
Newark,  for  appellees. 

PER  CT1RIAM.  The  judgment  under  review 
will  be  affirmed  for  the  reasons  given  in  the 
per  curiam  in  Long  Dock  Co.  v.  State  Board 
of  Taxes  and  Assessments,  etc.  (No.  48  of  the 
present  term  of  this  court)  101  AtL  367. 


(90  N.  J    Law  703) 

LONG  DOCK  CO.  v.  STATE  BOARD  OF 

TAXES  ANT)  ASSESSMENT  ct  aL 

(No.  51.) 

(Court  of  Errors  and  Appeals  of  Now  Jersey. 

May  24,  1917.) 

Appeal  from  Supreme  Court. 

Certiorari  by  the  Long  Dock  Company  against 
the  State  Board  of  Taxes  and  Assessment  and 
others  to  review  assessment  of  second  class 
railroad  property.  From  judgment  of  the  Su- 
preme C!ourt  (69  N.  J.  Law,  108,  97  A.  900), 
prosecutor  appeals.     Affirmed. 

Collins  8c  Corbin,  of  Jersey  City,  for  appel- 
lant. John  W.  Wescott,  Atty.  Gen.,  John  Bent- 
ley,  of  Jersey  City,  and  John  R.  Hardin,  of 
Newark,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
will  be  affirmed  for  the  reasons  given  in  the 
per  curiam  in  Long  Dock  Co.  v.  State  Board 
of  Taxes  and  Assessment,  etc.  (No.  48  of  the 
present  term  of  this  court)  101  AtL  3(^7. 


(90  N.  J.  Law,  406) 

HORNER  T.  BOARD  OF  COM'RS  OF  MAE- 
GATE  CITY  et  aL 

(Supreme  Coart  of  New  Jersey.    June  19, 1917.) 

(BvUahiu  ly  tA«  CourtJ 

Taxation  «=>513— Likn— CoNTiinTANCB. 

Under  the  act  entitled  "An  act  for  tile  as- 
sessment and  collection  of  taxes"  (P.  L.  1903, 
p.  394  [4  Comp.  St.  1910,  p.  5075]),  there  is  no 
limitation  as  to  the  lien  of  a  tax  assessed  on 
lands  against  the  owner,  at  least  so  long  as  he 
continues  to  be  the  owner,  and  a  taxing  district 
has  in  such  case  the  right  to  enforce  the  pay- 
ment of  taxes  assessed  against  the  owner,  al- 
though the  sale  is  not  made,  or  attempted  to  be 
made,  within  two  years  of  the  20th  day  of  De- 
cember of  the  year  for  which  the  taxes  are  as- 
sessed. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  U  951-955.] 

Action  by  John  O.  Homer,  receiver  of  the 
West  Jersey  Mortgage  Company,  fOr  a  writ 
of  certiorari  to  tbe  Board  of  Commissioners 
of  Margate  City  and  others  to  review  a  reso- 


lution directing  the  tax  collector  to  sdl  lands 
for  taxes  In  arrears.    Writ  dismissed. 

Argued  June  term,  1917,  before  SWAYZB, 
BERGEN,  and  BLACK,  JJ. 

Harvey  F.  Carr,  of  Camden,  for  prosecu- 
tor. Joseph  Thompson,  of  Atlantic  City,  for 
defendants. 

BERGEN,  J.  In  this  cause  a  writ  of  cer- 
tiorari was  allowed  to  review  a  resolution 
of  the  defendant  corporation  directing  its 
tax  collector  to  sell  lands  for  taxes  in  ar- 
rears. 

The  record  is  so  meager  that  it  is  doubt- 
ful whether  the  precise  question  is  presented 
in  it,  but  we  think  it  sulliciently  supplemented 
by  admissions  on  the  argument  and  the  briefs 
of  counsel  to  Justify  the  consideration  of 
the  real  question  in  dispute,  which  is:  Does 
tbe  lien  against  the  land  for  unpaid  taxes 
expire  in  favor  of  the  owner  at  the  end  of 
two  years  from  the  date  when  they  are  pay- 
able, where  the  owner  against  whom  the  as- 
sessment was  levied  still  holds  the  title?  Tbe 
facts  as  we  find  them  from  the  record  and 
admissions  of  counsel  are  substantially  as 
foUows:  In  1912  the  Ventnor  Syndicate  was 
the  owner  of  a  tract  of  land  in  Margate  City 
of  which  It  Is  still  the  owner;  in  that  year 
a  tax  was  assessed  against  the  land  in  tha 
name  of  the  owner  which  became  payable 
December  20th  of  that  year  and  is  not  yet 
paid;  that  October  9,  1916,  tbe  city  passed 
a  resolution  directing  tbe  sale  of  the  land  to 
make  the  taxes  in  arrears,  which  is  the  reso- 
lution under  review;  that  the  collector  ad- 
vertised the  land  for  sole  oa  April  10,  1917; 
that  February  21,  1912,  the  Ventnor  Syndi- 
cate mortgaged  the  land  of  the  West  Jersey 
Mortgage  Company  for  $6,000,  and,  the  latter 
company  being  decreed  to  be  inscdvent,  the 
prosecutor  was  app<^ted  its  receiver  October 
1,  1915. 

While  We  have  concluded  to  consider  the 
merits  of  the  question  presented,  we  do  not 
thereby  wish  to  be  tmderstood  as  conceding^ 
tbe  right  of  a  mortgagee  to  challenge  the 
legality  of  a  tax  assessed  In  the  name  of  th» 
owner  against  the  mortgaged  premises,  under 
sudi  conditions  as  are  present  in  this  case; 
for  it  may  w^l  be  that,  erven  if  the  lien  has 
expired  as  to  the  mortgagee.  It  might  remain 
a  lien  against  the  interest  of  the  owner  suffi- 
cient in  value  in  excess  of  tbe  m<»:tgage  to 
raise  the  sum  due  for  unpaid  taxes,  and  that, 
if  the  lien  had  lapsed  as  to  the  mortgagee,  a 
sale  of  the  owner's  interest  would  not  affeet 
the  mortgagee's  lien.  This  question  we  do 
not  pass  on  for  it  Is  not  raised,  and  defendant 
makes  no  objection  to  the  prosecutor's  stand- 
ing. 

The  <ml7  reason  filed  by  the  prosecutor  is 
that  "the  Mea  created"  by  the  act  of  190a 
(P.  L.  394;  O.  S.  6075)  has  expired,  and  tbe 
defendants.  In  ccmsequence,  have  no  right  or 
power  to  sell  the  said  lands,  and  can  con- 


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HORNER  V.  BOARD  OF  COM'RS 


369 


yey  no  valid  title  thereto.  This  raises  but  one 
gnestlon,  and  the  only  one  argued,  yiz.:  Is 
tbere  any  limitation  to  the  Hen  for  taxes  on 
the  land  against  which  they  are  assessed  and 
levied  where  there  has  been  no  sabseqnent 
conveyance  by  the  own«:.  We  are  of  opin- 
ion that  under  the  act  of  1903  sniMra  there  is 
no  limitation  for  the  lien  for  taxes,  so  far  aa 
the  owner  is  c(mcemed  against  whom  the 
tax  was  levied,  at  least  so  long  as  he  retains 
the  tltl&  Prior  to  1S54  we  had  no  statute 
making  taxes  a  lien  on  land  or  limiting  the 
lien  for  taxes.  In  that  year  (P.  L.  429)  an  act 
was  passed  which  provided  (section  2)  that 
an  assessment  for  taxes  against  any  person 
residing  out  of  the  state,  or  of  corporations 
residing  out  of  the  county  where  the  lands 
were  located,  should  be  a  lien  on  the  lands 
for  the  "space  of  two  years"  from  the  time 
when  they  were  made  payable,  and  in  1863 
(P.  L.  497)  this  was  extended  to  all  persons 
and  corporations  whether  resident  or  not. 
This  limitation  was  maintained  in  all  sub- 
sequent statutes  relating  to  the  subject  un- 
til the  general  revision  of  the  tax  act  in  1003, 
so  that  under  the  statutes  prior  to  1903  taxes 
were  made  a  lien  on  the  land  against  which 
they  were  assessed  for  the  space  of  two  years 
after  they  were  payable,  except  since  1888 
(P.  Li.  372),  when  all  taxes  were  made  a  Urst 
and  paramount  lien  for  the  space  of  two 
years  from  and  after  December  20th  In  each 
yesir,  to  whldi  all  conveyances,  mortgages, 
and  other  liens  were  subservient,  and  our 
courts  in  construing  this  legislation  have 
uniformly  held  that  the  lien  imposed  expired 
at  the  end  of  two  years  from  the  due  day. 
Johnson  v.  Van  Horn,  45  N.  J.  Law,  136;  Poil- 
lon  V.  Rutherford,  68  N.  J.  Law,  113,  32  Att. 
688 ;  Hohenstatt  v.  Bridgeton,  62  N.  .J.  Law, 
169,  40  Ati  649.  With  thU  statutory  limita- 
tion regarding  taxes  continued  in  our  law 
for  a  period  of  40  years,  together  with  its 
Jndldal  construction,  before  it,  the  Legis- 
lature by  the  act  of  1903  supra  deliberately 
eliminated  the  limitation  of  the  Uen  of  taxes, 
and  expressly  repealed  by  P.  I«.  1908,  p.  436, 
all  the  legislation  relating  thereto,  and  by 
section  49  of  the  Revised  Statutes  of  1903 
declared  that  all  unpaid  taxes  should  be, 
after  the  20th  day  of  December  next  after  the 
assessment,  "a  first  Uen  on  the  land  on  which 
they  are  assessed,  and  imramonnt  to  all  prior 
or  subsequent  alienations  and  descents  of 
said  land  or  incumbrances  thereon,  except 
subsequent  taxes."  Section  50  of  the  act  re- 
goires  the  collector  Of  each  taxing  district 
to  file,  on  or  before  the  first  Tuesday  of  Feb- 
mary  in  eadi  year  with  the  county  clerk,  ex- 
cept in  cities  having  charter  provisions  for 
a  public  record  of  tax  liens  on  land,  a  list 
of  all  unpaid  taxes  assessed  the  preceding 
year  on  real  estate  in  his  taxing  district,  set- 
ting forth  against  whom  assessed,  the  de- 
scription of  the  property  and  the  amount  of 
taxes  assessed  thereon,  arranged  alphabetical- 
ly In  the  names  of  the  owners,  and  then  de- 
clares that: 

101  A.— 24 


"The  said  list  when  filed  and  the  record  there- 
of shall  be  constrnctive  notice  of  the  existence  of 
the  tax  lien  for  two  years  from  said  first  Tues- 
day of  February  but  not  thereafter  against  any 
parcel  anless  within  said  term  of  two  years  the 
sale  of  said  parcel  shall  be  noted  in  the  rec- 
ord." 

The  same  section  further  provides  that  a 
purchaser  or  mortgagee  In  good  faith  after 
the  said  flrst  Tuesday  of  February,  whose 
deed  or  mortgage  Is  recorded  before  the  col- 
lector has  filed  his  list,  shall  hold  his  title 
free  from  the  tax  Uen.  The  radical  change 
made  by  this  statute  is  that  the  lien  of  taxes 
is  no  longer  subject  to  any  limitation,  they 
are  made  a  Uen  paramount  to  all  conveyances 
or  mortgages  except  such  as  are  taken  after 
the  first  Tuesday  In  any  February  and  re- 
corded before  the  collector  has  filed  his  list. 
This  was  manifestly  adopted  to  protect  in- 
nocent purchasers  and  mortgagees  in  good 
faith  against  the  default  of  the  collector  In 
not  filing  his  list  on  the  day  required  by  law, 
but  they  are  not  protected  If  recorded  after 
the  Ust  has  been  filed,  so  that.  If  such  pur- 
chaser or  mortgagee  finds  no  list  on  file  show- 
ing taxes  in  arrears  against  the  land  when 
he  records  his  conveyance  or  mortgage,  he 
may  safely  accept  either.  That  part  of  sec- 
tion 50  relating  to  the  limitation  of  construc- 
tive notice  to  two  years  does  not  destroy  the 
tax  lien  in  favor  of  an  owner,  for  he  has 
actual  notice  that  he  has  not  paid  his  taxes, 
and  the  Legislature  could  not  have  Intended 
to  do  away  with  the  actual  notice  which  he 
had,  and  put  in  its  place  a  constructive  no- 
tice, which  Is  one  which  the  law  implies  and 
charges  him  with  in  absoice  of  actual  no- 
tice. This  limitation  of  constructive  notice 
only  appUes  to  persons  who  deal  with  the 
land  without  notice  of  any  tax  Uen. 

As  to  8n<di  persons  the  list  filed  is  a  no- 
tice which  the  law  impUes  they  have,  but  this 
ImpUcation  fails,  by  force  of  the  statute,  after 
the  lapse  of  two  years  from  the  beginning  of 
the  Uen,  after  which  the  list  Is  not  construc- 
tive notice  to  a  purchaser  or  mortgagee  of 
the  tax  lien,  and  If  he  finds  no  list  on  file, 
or  a  sale  noted,  within  two  years,  he  may 
assume  that  there  are  no  taxes  in  arrears 
which  are  a  lien  upon  the  property.  It  may 
weU  be  doubted  whether  this  statute  appUes 
in  any  case  where  the  conveyance  or  mort- 
gage Is  recorded  prior  to  the  assessment,  for 
as  was  said  by  Mr.  Justice  Dixon  in  Robin- 
son V.  Hulick,  67  N.  J.  Law,  496,  51  AtL  493: 

"All  persons  interested,  or  about  to  become  in- 
terested, in  lands  in  New  Jersey,  are  chargeable 
with  notice  of  these  laws  and  of  their  normal 
operation.  E>ery  purchaser  or  mortgagee  of 
such  land  therefore  must  be  deemed  to  have  no- 
tice of  the  taxes  which  become  a  lien  uix>n  that 
land  on  every  20th  day  of  December  after  he  ac- 
quires his  interest." 

We  are  Inclined  to  think  that  the  statute 
with  reference  to  the  constructive  notice  to 
be  derived  from  the  filed  list  was  intended 
tor  the  protection  of  persons  Intending  to 
become  Interested  In  the  land,  and  that  as  to 
them  the  Ust  Is  not  a  constructive  notice  for 


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101  ATIiAin?IO  REPORTEIB 


(N.X 


more  than  two  years  after  It  Is  filed,  ao  tbat 
if  In  searching  the  record  he  finds  no  list 
containing  an  assessment  unpaid  against  the 
land  he  is  not  chargeable  with  notice  of  any 
Assessment,  altboDgh  filed,  which  is  not  with- 
in the  limited  period,  but  If  this  be  not  sound 
we  are  of  opinion  that  the  limitation  of  the 
effect  of  the  constructive  notice  provided  by 
the  statute  does  not  apply  where  the  owner 
had  actual  notice  of  a  tax  levied  during  his 
ownership,  and  that,  so  far  as  he  Is  coucern- 
«d,  the  tax  remains  a  Hen  upon  his  land  with- 
out limitation  by  any  statute. 

The  result  which  we  reach  Is  tbat  the  pros- 
ecutor can  take  nothing  by  his  writ,  and  tbat 
It  should  be  dismissed,  with  costs. 


(90  N.  J.  Law,  473) 

DOIiKER  V.   BOARD  OF  CHOSE3N  FREO- 

HOLDERS  OF  ATLANTIC  COUNTY 

et  al.    (No.  86.) 

'(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18.  1017.) 

(Syttabut  by  the  Court.) 

1.  Appeal  and  E^rror  €=3114&-^udoiient 
4=»305 — Review— Amendment. 

It  is  the  judement.  not  the  opinion,  of  a 
'Court  below,  which  is  brought  before  an  appel- 
late court  for  review.  If  the  judKment  of  the 
lower  court  varieB  from  its  decision,  it  may  be 
corrected  only  by  aineDdmeot  in  that  court;  in 
the  court  above  it  can  only  be  affirmed,  revers- 
ed, or  modiScd. 

lEd.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  ii  4483-1496;  Judgment, 
-Cent.  Dig.  »  590.  697.1 

2.  MuRiciPAi.  Corporations  «s»336(1)  — 
Contracts  —  "Work"  —  "Liabor"  —'•Ma- 
terials"—Statute. 

The  pobllsbinK  of  official  advertisemeDts  for 
municipal  corporations  in  newspap«r8  is  neither 
work,  labor,  nor  materials  furnished  by  the 
owners  of  the  papers  to  such  advertising  cus- 
tomers, under  P.  L.  1912,  p.  593. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  802. 

For  other  definitions,  see  Words  and  Phrases, 
First  and  Second  iieries.  I>ibor;  Materials: 
Work.] 

3.  MtTNtcrPAL  Corporations  4s»327— Pob- 
Lio   Advebtisemknts  —  Price  —  Repeal  or 

Statute. 
The  act  of  1908  (P.  L.  p.  92;  3  Comp.  St. 
1910,  p.  3762),  which  regulates  the  price  to  be 
paid  for  public  advertising,  is  not  repealed  by 
impUcatlon  by  act  of  1912  (P.  L.  p.  593),  there 
being  no  express  repealer,  specific  or  general, 
which  latter  act  relates  to  expenditures  by  pub- 
lic bodies  for  the  doinK  of  work  or  the  furnish- 
ing of  materials  or  labor. 

fEd.  Note. — For  other  cases,  see  Munidpal 
Corporations,  Cent  Dig.  {  850.] 

4.  Municipal  Corporations  €=>336(1)— An- 
vbrtmino— Award  op  Contract— Statute. 

Although  a  municipal  corporation  advertis- 
es for  bids  or  proposals  for  publishing  all  official 
advertising  in  newsnaoers.  it  is  not  required  to 
award  a  contract  to  the  lowest  bidder,  but  may 
contract  for  such  advertisintc  at  the  price  fixed 
in  P.  L.  1909.  n.  92. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations.  Cent.  Dig.  i  862.] 


Appeal  from  Supreme  Court 

Certiorari  from  the  Supreme  Court  by 
Thomas  Dolker  against  the  Board  of  Chosen 
Freeholders  of  the  County  of  Atlantic  and 
others.  Judgment  for  prosecutor,  and  de- 
fendants appeal.    Reversed. 

Enoch  A.  Hlgbee,  of  Atlantic  City,  for  ap- 
pellants. Clarence  L.  Cole,  of  Atlantic  City, 
for  appellee. 

WALKER,  Ch.  The  board  of  chosen  free- 
holders of  the  county  of  Atlantic  called  for 
sealed  bids  or  proposals  for  the  publication  or 
printing  of  all  public  notices  or  advertise- 
ments authorized  by  the  board,  including 
monthly  and  annual  financial  statements.  lu 
response,  bids  were  submitted  by  the  South 
Jersey  Star,  Frank  Breder,  Atlantic  City  Re- 
view, Atlantic  City  Dally  Press,  and  Atlantic 
City  Union,  and  were  as  follows:  South  Jer- 
sey Star,  seven-eighths  cents  per  line ;  FranR 
Breder,  six -eighths  cents  per  line;  Atlantlo 
City  Review,  four  cents  per  line  for  the  first 
Insertion  and  three  cents  per  line  for  sub- 
sequent Insertions;  Atlantic  <^ty  Press,  ten 
cents  per  line  for  the  first  insertion  and  eight 
cents  ijer  line  for  subsequent  insertions; 
Atlantic  City  Union,  ten  cents  per  line  for  the 
first  insertion  and  eight  cents  per  line  for 
subsequent  Insertions.  The  proposals  were 
referred  to  the  printing  committee  and  the 
minutes  of  the  board  show  that  on  motion  a 
contract  was  awarded  to  the  Atlantic  City 
Review  and  Atlantic  City  Press  at  the  legal 
rate,  as  given  In  the  bid  of  the  Atlantic  nty 
Press.  These  two  were  not  the  lowest  bid- 
ders. 

The  prosecutor  respondent  sued  out  a 
certiorari  from  the  Supreme  Court  to  test 
the  legality  of  the  award.  That  court  in  a 
per  curiam  held  that  tlie  award  of  the  con- 
tract was  at  a  figure  much  in  excess  of  the 
statutory  limitation,  and  set  the  same  aside, 
with  costs.  This  appears  to  refer  to  the  total 
cost  of  the  advertising,  which  would  exceed, 
(according  to  a  stipulation  In  the  cause)  the 
$5(X)  limit  of  expenditure,  without  advertis- 
ing for  proposals  and  awarding  the  contract 
to  the  lowest  bidder,  as  provided  by  the  act 
of  1912,  Infra.  The  respondent,  the  board, 
has  appealed  to  this  court. 

[1]  It  Is  urged  as  a  ground  of  appeal  that 
the  Judgment  In  the  Supreme  Court  Is  not 
In  accord  with  Its  opinion.  In  that  the  judg- 
ment sets  aside  the  proceeding!,  with  costs, 
whereas  the  opinion  directed  the  setting  aside 
of  the  contract,  with  costs.  It  Is  not  the  opin- 
ion, but  the  Judgment,  of  the  court  below, 
which  is  before  this  court  for  review.  The 
reasoning  of  the  Judges  in  a  court  below  la 
always  considered,  and,  so  far  as  it  tends 
to  support  the  conclusion  reached  by  that 
tribunal,  is  given  due  weight  by  an  appellate 
court ;  but  the  Judgment  entered  in  the  court 
below,  even  if  it  is  different  from  the  court's 
decision,   cannot  be  amended  In  the  court 


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871 


above.  It  can  only  be  affirmed,  reTersed,  or 
modifled  there. 

The  Judgment  entered  npon  the  opinion  of 
the  Supreme  Court  In  the  case  at  bar  recites 
that  that  court  was  of  opinion  that  the  pro- 
ceedings under  review  should  be  set  aside, 
and  so  ordered,  with  costs ;  the  opinion  con- 
cluding, as  above  mentioned,  that  the  coti' 
tract  should  be  set  aside;  The  form  of  Judg- 
ment, however,  if  a  matter  of  importance, 
could  only  be  corrected  by  the  court  which 
rendered  it  See  Hansen  v.  De  Vita,  76  N.  J. 
Law,  330,  70  AtL  66&  However,  the  form  of 
the  Judgment  before  us  is  of  no  importance 
In  the  view  which  we  have  reached,  for,  were 
it  one  setting  aside  the  proceedings  under  re- 
view, instead  of  the  oontract,  it  would  have 
to  be  reversed.  And  this  brings  us  to  the 
meritorious  question  in  the  ONitroversy, 
whldi  Is  one  of  statutory  construction. 

[2]  Two  statutes  are  involved.  The  first 
is  P.  L.  190&,  p.  92  (Ck>mp.  Stat  p.  3762),  and 
the  other  Is  P.  Lw  1912,  p.  593.  I^e  title  and 
pertinent  section  of  the  first  reads  as  follows: 
"An  act  to  regulate  the  price  to  be  paid  for 
official  advertishuc. 

"1.  Hereafter  the  price  to  be  paid  for  pub- 
lishinR  all  official  advertisinz  in  the  newspapers, 
published  in  cities  of  the  first  and  second  class, 
or  in  counties  of  the  first  or  second  dais  in 
this  state,  shall  be  at  the  rate  of  ten  cents  per 
agate  (or  5%  point)  line  for  the  first  insertion, 
and  eight  cents  per  agate  line  for  each  subse- 
quent insertion;  Provided,  that  in  computing 
such  charge  per  line,  the  lines  shall  average  at 
least  seven  words." 

And  the  second: 
"An    act    relating    to   expenditures    by    public 

county,    city,    town,   township,    borough   and 

village  bodies;. 
"1.  Where  and  whenever  hereafter  it  shall  be 
lawful  and  desirable  for  a  public  body  of  any 
county,  city,  town,  township,  borough  or  vil- 
lage to  let  contracts  or  agreements  for  the  doing 
of  any  work  or  for  the  furnishing  of  any  ma- 
terials or  labor,  where  the  siim  to  be  expended 
exceeds  the  sum  of  five  hundred  dollars,  the  ac- 
tion of  any  such  public  body  entering  into  such 
agreement  or  contract  or  giving  any  order  for 
the  doing  of  any  work  or  for  the  furnishing  of 
any  materials  or  labor,  or  for  any  such  expendi- 
tures, shall  be  invalid  unless  such  public  body 
shall  first  Dubliclv  advertise  for  bids  therefor, 
and  shall  award  said  contract  for  the  doing  of 
said  work  or  the  furnishing  of  such  materials 
or  labor  to  the  lowest  responsible  bidder:  Pro- 
vided, however,  that  said  public  body  may,  nev^ 
ertheless.  reject  anv  and  all  bids." 

The  prosecutor,  who  bid  for  the  South  Jer- 
sey Star,  was  the  lowest  bidder,  and  claimed 
that  the  act  of  1912,  which  provides  that 
where  a  public  body  In  any  county,  etc.,  shaU 
make  a  contract  or  agreement  for  the  doing 
of  any  work  or  the  furnishing  of  any  ma- 
terials or  labor,  where  the  sum  to  be  expend- 
ed exceeds  $S00,  the  action  of  such  body  shall 
be  Invalid  unless  it  shall  publicly  advertise 
for  bids  and  shall  award  the  contract  to  the 
lowest  responsible  bidder,  required  that  the 
contract  should  have  been  awarded  to  him. 
We  do  not  think  that  this  act  applies  at  all 
to  the  case  at  bar.    The  advertising  under 


whidi  the  bids  were  received  was  for  pro- 
posals for  the  publication  or  printing  of  all 
public  notices  or  advertisements  authorized 
by  the  board  of  chosen  freeholders,  including 
monthly  and  annual  financial  statements,  and 
that  the  successful  bidder,  or  the  ones  tO' 
whom  the  contract  should  be  awarded,  must 
enter  into  a  written  contract  to  publish  such 
legal  notices  as  should  be  authorized  by  the 
board  for  the  price  tor  which  they  bid,  etc 
The  sort  of  advertising  here  called  for  was 
clearly  official  advertising,  as  provided  for  in 
section  1  of  the  act  of  1909,  and  was  not  the 
doing  of  work  or  the  furnishing  of  materials 
or  labor  comprehended  in  the  act  of  1912. 

[3]  It  is  urged  on  behalf  of  the  respondent 
that  the  act  of  1912  repealed  the  act  of  1909 
by  Implication;  there  being  no  express  re- 
pealer, specific  or  general.  The  Supreme 
Court  held  that  the  two  acts  could  stand  to- 
gether, and  seems  to  have  treated  them  a» 
being  In  pari  materia.  We  think  they  are 
not;  that  they  contemplate  two  entirely 
different  subjects — the  one  of  1909  the  matter 
of  official  advertising,  and  the  one  of  1912^ 
the  doing  of  public  work,  or  furnlslilng  ma- 
terials therefcn*. 

[4]  The  act  of  1909  does  not  require  adver- 
tising for  bids,  and,  consequently,  the  ajK- 
pellant  was  not  required  to  award  the  con- 
tract to  the  lowest  bidder.  This  court,  in 
Trenton  v.  Shaw,  49  N.  J.  Law,  638,  10  AU. 
273,  held  that  under  a  provision  in  the  char- 
ter of  Trenton  requiring  that  all  contracts  for 
work  or  materials  for  any  Improvements 
should  be  given  to  the  lowest  bidder,  did  not 
apply  to  a  oontract  .to  furnish  rubber  hose 
for  the  fire  department,  because  that  was  not 
an  Improvement  In  that  case  advertisement 
had  been  made  for  bids,  but  the  contract 
was  not  awarded  to  the  lowest  bidder,  and 
the  action  of  the  common  council  was  s^ 
aside  in  the  Supreme  Court,  but  was  upheld 
in  this  court  The  doctrine  of  Trenton  v. 
Shaw  is  applicable  to  the  case  at  bar. 

The  Judgment  under  r^view  must  be  re- 
versed, with  costs. 


(M  N.  J.  Law,  M«> 
DUFF  ▼.  PRUDENTIAL  INS.  CO.  OF 
AMERICA.    (Na  74.) 

(Court  of  Ekrrors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

(SyUabus  by  the  Court.) 

1.  IirsuBARCE     «=>291(4)— Indubtriai.     Lifb 
Insurance— WiixFoi,  Misstatement  ab  to- 
Health— "Fbaud." 
A  finding  of  fact  by  the  district  court,  sup- 
ported by  evidence,  that  in  the  application  for  a 
policy  of  life  insurance  a  statement  that  the  in- 
sured was  not  suffering  from  consumption  was- 
a  willful  untruth,  vitiates  the  policy.     This  in 
effect  is  a  finding  that  the  policy  was  procured 
by  fraud  (citing  3  Words  and  Phrases,  Fraud). 

[Ed.   Note. — For   other  cases,   see   Insurance, 
Cent  Dig.  (  687.1 


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101  ATLANTIC  REPORTER 


(N.J. 


2.  Insukancb    ®=3265  —  Statuti:— Repkksen- 
tations  bt  insured. 

By  statute  (Act  April  15,  1907;  P.  L.  P- 
133,  §  1  [4]),  statements  purporting  to  be  made 
by  the  insured  shall,  in  the  absence  of  fraud,  be 
deemed  representations,  and  not  warranties. 

rEd.  Note.— For  other  cases,  see  Insurance, 
Gent  Dig.  i  560.1 

3.  Appeal  and  Ebbob  «=9l010(l)— Findinos 
■^Re  V  zs  w 

The  Supreme  Cburt  cannot  review  the  find- 
inss  of  fact  of  the  district  courts,  when  sup- 
ported by  evidence. 

[Bd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  fg  3979-3981,  4024.] 

Appeal  from  Supreme  Court. 

Suit  by  Richard  H.  Duff,  administrator, 
etc.,  of  John  SulliTau,  deceased,  against  the 
Prudential  Insurance  Company  of  America. 
From  a  Judgment  of  the  Supreme  Court,  re- 
versing a  Judgment  of  the  district  court  of 
Jersey  City  in  favor  of  the  defendant,  it 
appeals.  Judgment  reversed,  and  Judgment 
of  district  court  affirmed. 

Randolph  Perkins,  of  Jersey  City,  for  ap- 
pellant Hershenstein  &  Flnnerty,  of  Jersey 
City,  for  appellee. 

BLACK,  J.'  This  was  a  suit  brought  on  an 
Industrial  life  insurance  policy,  issued  to  the 
decedent,  J<^n  Sullivan,  by  the  defendant 
company,  for  the  sum  of  $244,  on  September 
21,  1914.  The  Insured  died  of  tuberculosis 
at  the  City  Hospital,  in  Jersey  City,  June  13, 
1916.  The  case  was  tried,  in  the  First  dis- 
trict court  of  Jersey  City,  by  Judge  Carrick, 
without  a  Jury,  resulting  in  a  Judgment  ren- 
dered in  favor  of  the  defendant 

[3]  The  trial  court  found,  as  a  fact,  the 
statement  made  by  the  Insured,  in  his  appli- 
cation, that  he  had  never  suffered  from  con- 
sumption, in  view  of  the  previous  history  of 
the  case,  to  have  been  a  willful  untruth, 
which  vitiates  the  policy  and  prevents  re- 
covery thereunder.  The  evidence  in  the  rec- 
ord amply  supports  this  finding  of  fact  by  the 
trial  court  The  case  was  reviewed  in  the 
Supreme  Court,  which  reversed  the  Judgment 
of  the  district  court,  <m  the  ground  that  the 
false  statement  in  the  application,  if  It  was 
false,  did  not  vitiate  the  policy,  in  the  absence 
of  proof  that  the  company  was  Induced  to 
write  the  policy  through  fraud.  The  Su- 
preme Court  also  said  the  case  is  substantial- 
ly, thflugb  not  precisely,  similar  to  Melick  v. 
Metropolitan  Life  Insurance  Co.,  84  N.  J. 
Law,  437,  87  Atl.  76,  affirmed  85  N.  J.  Law, 
727,  91  AU.  1070,  in  which  the  determining 
factor  was  the  continued  acceptance  of  week- 
ly premiums  by  the  company.  We  do  not 
agree  with  the  conclusion  reached  by  the 
Supreme  C6urt  We  think  the  Judgment  of 
the  Supreme  Court  should  be  reversed,  and 
the  Judgment  of  the  district  court  affirmed. 

[1,2]  In  the  application  for  the  policy  of 
insurance,  which  was  dated  September  0, 
1914,  the  insured  stated  that  he  had  never 
suffered  from  consumption,  that  he  was  in 


good  condition  of  health,  and  had  no  seriouj 
disease.  The  company  defended  on  the 
ground  of  the  falsity  of  these  statements. 
The  policy  itself  does  not  refer  to  the  appli- 
cation for  insurance.  The  statements  in  the 
application  are  not  made  warranties  or  con- 
ditions.   The  statute  provides: 

"All  statements  purporting  to  be  made  by  the 
insured  shall,  in  the  absence  of  fraud,  be  deem- 
ed representations  and  not  warranties.  Any 
waiver  of  this  provision  stiall  be  void."  P.  L. 
1907,  p.  133,  i  1(4). 

The  finding  of  facts  by  the  district  court 
.was  not  the  subject  of  review,  by  the  Su- 
preme Court  Dordonl  y.  Hughes,  83  N.  J. 
Law,  866,  86  Atl.  353.  It  seems  to  us  the 
necessary  result  of  finding  that  an  applica- 
tion for  a  policy  of  life  Insurance  contains  n 
wlllfnl  untruth  as  to  whether  the  applicant 
had  consumption  was  necessarily  a  finding 
that  the  policy  was  procured  by  fraud.  The 
Supreme  Court  thought  there  was  no  proof 
that  this  misrepresentation  was  material,  or 
that  the  company  may  have  been  aware  of 
its  falsity  and  issued  the  policy  regardless 
of  that  fact  The  fact  that  the  company  asks 
the  question  shows  it  is  material,  and  it  Is 
common  knowledge  to  assume  that  life  insur- 
ance companies  do  not  accept  for  life  insur- 
ance tubercular  persons. 

It  Is  said  the  most  essential  element  of 
fraud  is  deceit  What  could  be  the  purpose 
of  the  insured  making  a  statemoit,  that  was 
a  willful  untruth,  about  his  health,  which 
he  must  have  known  ,was  important  and  ma- 
terial, if  it  was  not  to  deceive?  Many  defi- 
nitions and  Illustrations  of  fraud,  taken  from 
adjudged  cases,  will  be  found  collected  in 
volume  3,  Words  and  Phrases,  page  2943. 
We  agree  with  the  district  court  that  a  state- 
ment which  is  a  willful  untruth,  as  found 
by  the  district  court.  In  procuring  the  insur- 
ance policy,  renders  it  void  on  the  ground  of 
fraud.  This  view  results  in  a  reversal  of 
the  Judgment  of  the  Supreme  Court,  and  an 
afiHrmance  of  the  Judgment  of  the  district 
court.  It  also  renders  unnecessary  any  fur- 
ther discussion  of  the  points  argued  In  the 
briefs  of  counseL 

The  Judgment  of  the  Supreme  Court  la 
therefore  reversed,  with  costs,  and  the  Judg- 
ment of  the  district  court  affirmed. 


(90  N.  J.  lAW,  640) 

(3HRISTT  et  al.  v.  NEW  YORK  CENT.  &  H. 

R.  R.  CO.     (No.  91.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

(Syllalv*  Ip  the  Court.) 

1.  Evidence  «=»244(ie)  —  Admissiors  — 
Aoent's  Admission. 
In  a  suit  brought  to  recover  damages  for 
property  destroyed  by  fjre  through  the  failure  of 
the  defendant  railroad  to  use  reasonable  care  to 
keep  its  right  of  way  in  New  Tork  state  clear 
of  combustible  materials,  a  written  statement 
made  by  the  defendant's  general  manager  (who 


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373 


was  charged  with  the  duty  of  maintenance  and 
care  of  such  rigrht  of  way)  to  the  Public  Service 
Commission  of  New  York  (when  it  was  conduct- 
ini;  a  legally  authorized  investigration  of  the 
fire)  to  the  eSect  that  at  the  time  of  the  fire  the 
defendant  company  had  not  cleared  its  right  of 
vay  of  combuatible  materials  was  admissible  in 
tTidence  against  the  defendant  comi>&uy. 

[Sd.    Note.— For   other   cases,   see   Evidence, 
Cent.  Dig.  {  933.] 

2.  BVIDSNOB  ^=9246  —  Adkissions  —  OmOER 

OF   COBPORATIOIT. 

The  general  rule  is  that,  when  a  corporation 
authorizes  an  attorney  to  speak  for  it,  the  cor- 
poration may  be  confronted  by  testimony  as  to 
what  was  said  by  such  attorney  within  the 
scope  of  his  authority. 

[Ed.    Note.— For   other   cases,   see    Evidence, 
Cent  Dig.  }}  945-949.] 

3.  Evidence   ®=3244(16)— Adiiissions— Statk- 

MENTS  OF  AtTOKNET. 

Where  a  railroad  company  had  authorized 
its  attorney  to  act  and  speak  for  it  at  a  legally 
authorized  hearing  by  the  Public  Service  Com- 
mission at  which  a  fire  along  the  company's 
right  of  way,  and  the  company's  connection 
therewith,  was  under  investigation,  evidence  as 
to  such  attorney's  statements  then  and  there 
made  with  respect  to  combustible  matter  on  such 
right  of  way  at  the  time  of  the  fire  are  admissi- 
ble in  evidence  against  the  company  in  a  suit 
involving  that  issue,  subject  to  the  latter's  right 
to  disprove,  rebat,  or  explain  such  statemenfai. 

[E^  Note.— XW  other  cases,  see  Evidence, 
Cent  Dig.  {  933.] 

4.  Payment    «=>66<5>— Pbescmftion— Exfca- 

NATIOW. 

The  presumption  of  payment  or  release  aris- 
ing from  lapse  of  time  is  not  necessarily  a  con- 
clusive and  absolute  presumption.  The  lapse  of 
time  gives  rise  to  a  conclusive  and  absolute  pre- 
sumption only  when  not  satisfactorily  accounted 
for  or  explained.  But  when  so  accounted  for  or 
explained  the  delay  still  remains  as  one  of  the 
facts  in  the  case  upon  which  the  ultimate  ques- 
tion of  payment  or  release  is  to  be  determined 
in  connection  with  the  other  evidence. 

[Ed.  Note.— For  other  cases,  see  Payment, 
Cent.  Dig.  §  188.] 

6.  Tbial  €=3261  —  Requested  Instbuction  — 

Refusal. 
When  a  party  asks  for  an  instruction  which 
is  partly  good  and  partly  bad,  it  ia  proper  to 
refuse  it  altogether. 

[Ed.  Note. — For  other  cases,  see  Trial,  Cent 
Dig.  iJ  484,  660,  671,  673,  67^.] 

Appeal  from  Supreme  Court 

Action  by  Charles  R.  C3iristy  and  others 
against  the  New  Tork  Central  &  Hudscm 
River  Railroad  Company.  From  a  Judg- 
ment of  tbe  Supreme  Court  for  plaintifls 
entered  upon  tbe  verdict  of  a  Jury  at  the 
Hudson  circuit,  defendant  appeals.    Affirmed. 

See,  also,  92  AU.  395. 

Vredenburgh,  Wall  ft  Carey,  of  Jersey 
City,  for  appellant.  Edmund  W.  Wakelee, 
of  Englewood,  and  Wendell  J.  Wright  and 
Edward  V.  Thomall,  both  of  New  York 
Gtj,  for  appellees. 

TRENCHARD,  J.  This  appeal  brings  up 
for  review  a  Judgment  In  favor  of  the  plain- 
tiffs below,  entered  upon  the  verdict  of  a 
Jury,  at  the  Hudson  circuit.  We  are  of  the 
opinion  that  the  Judgment  must  be  afDrmed. 


The  action  was  brought  by  the  plaintiffs, 
residents  of  New  Jersey,  against  the  defend- 
ant railroad,  to  recover  the  value  of  certain 
cut  and  piled  timber  at  Ix>ng  Lake  West 
Hamilton  county,  N.  X.,  which  was  destroyed 
by  fire  on  September  27,  1908. 

Tbe  only  questions  raised  on  this  appeal 
are  those  points  reserved  In  the  rule  to  show 
cause  why  a  new  trial  should  not  be  grant- 
ed, which  was  discharged. 

Tbe  first  challenges  the  admission  In  evi- 
dence at  the  trial  of  a  communication  by 
A.  H.  Smith,  vice  president  and  general  man- 
ager of  the  defendant  company,  dated  Jan- 
uary 6,  1909,  addressed  to  the  Public  Service 
Commission,  Second  district,  state  of  New 
York. 

The  situation  was  this:  At  the  trial  of  the 
present  case  the  main  issue  was  whether  or 
not  the  defendant  company  was  negligent  in 
the  maintenance  and  care  of  its  right  of  way 
in  violation  of  its  common  dutgr  to  exercise 
reasonable  care  to  keep  It  clear  of  combusti- 
ble matter,  by  reason  of  which  negligence 
the  plaintiffs  sustained  the  damages  sued 
for.  The  plaintiffs  Introduced  evidence  tend- 
ing to  show  that  the  right  of  way  of  the  de- 
fendant at  and  near  where  the  plaintiffs* 
lumber  was  piled  was  filled  with  combustible 
materials.  The  plaintifls  also  put  in  evidence 
section  72  of  the  Forest,  Fish,  and  Game  Law 
of  the  state  of  New  York  (Oonsol.  Laws,  c. 
19),  which  enacts,  among  other  things,  that : 

"E?very  railroad  company  shall,  on  such  part 
of  Its  road  as  passes  through  forest  lands  or 
lands  subject  to  fires  from  any  cause,  cut  and 
remove  from  its  right  of  way  along  such  lands, 
at  lea.st  twice  a  year,  all  grass,  brush  or  other 
inflammable  materials." 

And  it  also  provides  that: 

"The  Public  Service  Commission  must  upon 
the  request  of  the  forest,  fish  and  game  com- 
missioner, and  on  notice  to  the  railroad  company 
or  companies  affected,  require  any  railroad  com- 
pany having  a  railroad  running  through  forest 
lands  in  counties  containing  parts  of  the  forest 
preserve,  to  adopt  such  devices  and  precautions 
against  setting  fire  upon  its  line  in  such  forest 
lands  as  the  public  interest  requires." 

It  was  also  proven  and  admitted :  (1)  That 
part  of  the  forest  preserve  was  in  Hamilton 
county;  (2)  that  after  the  fire  in  question 
the  Public  Service  Commission  of  Uie  Sec- 
ond district  of  the  state  of  New  York,  upon 
tbe  request  of  the  forest,  fish,  and  game 
oommissloner,  began  an  investigation  Into 
such  fire  to  ascertain  what  the  causes  were, 
and  to  what  extent  railroad  operations  were 
responsible;  (3)  that  the  commission  made 
an  order  directing  the  defendant  company 
and  others  to  show  cause  what  precautions 
were  being  used  by  them  against  setting  fires 
upon  their  respective  lines  in  forest  lands, 
etc ;  (4)  that  at  such  hearing  the  defendant 
company  wad  represented  both  by  its  gen- 
eral attorney  and  Its  local  attorney,  and  sub- 
mitted to  the  commission  a  communication 
in  writing  made  by  Mr.  Smith,  the  vice  presi- 
dent and  general  manager  of  the  defendant 


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101  ATLANTIC  REPORTER 


(N.J, 


company.  It  was  evidence  of  this  communi- 
cation which  the  defendant  contends  was  er- 
ror requiring  reversal.     We  think  not 

[1]  The  communication  contained  a  state- 
ment from  which  the  Inference  might  proper- 
ly be  drawn  that  the  defendant  company,  at 
the  time  of  the  fire  in  question,  had  not 
cleared  its  right  of  way  of  combustible  ma- 
terials, and  the  communication,  having  been 
made  by  its  general  manager,  who,  It  ap- 
peared, was  charged  with  the  duty  of  main- 
tenance and  care  of  such  right  of  way,  was 
admissible  in  evidence  against  the  defendant 
company.  Halsey  v.  Lehigh  Valley  R.  R. 
Co.,  46  N.  J.  Law,  26 ;  Agricultural  Ins.  Co. 
V.  Potts,  55  N.  J.  Law,  158,  26  AU.  27,  637, 
39  Am.  St  Rep.  637 ;  Carey  v.  Wolff,  72  N. 
J.  Law,  510,  63  Atl.  270;  Jones  v.  Mount 
Holly  Water  Co..  87  N.  J.  Law,  106,  93  Atl. 
860. 

It  is  next  argued  that  there  should  be  a 
reversal  because  of  evidence  given  of  an  oral 
statement  made  by  Martin  E.  McClary,  the 
local  attorney  of  the  defendant,  before  tbB 
.  Public  Service  Commission,  at  the  hearing 
above  referred  to.  We  think  there  is  no 
merit  in  this  contention. 

[2,  3]  It  satisfactorily  appeared  at  the  trial, 
apart  from  Mr.  McClary's  statement,  that 
he  was  the  defendant's  local  attorney,  and 
was  instructed  by  the  defendant  company 
to  act  and  speak  for  it  at  the  hearing  re- 
specting the  defendant's  relation  to  the  fire 
in  question.  The  statement  in  question  was 
then  and  there  made  by  him  in  pursuance  of 
his  instructions.  It  was  In  ampUflcatlon  of 
the  written  statement  of  Mr.  Smith,  and  was 
that  the  condition  of  the  right  of  way,  with 
respect  to  combustible  matter,  was  "bad 
and  was  one  of  the  causes  of  the  Are." 

Now  the  general  rule  is  that,  when  a  cor- 
poration authorizes  an  attorney  to  speak 
for  it  the  conwratlon  may  be  confronted  by 
testimony  as  to  what  was  said  by  sudi  at- 
torney within  the  scope  of  his  authority. 
Gallagher  v.  McBride,  66  N.  J.  Law,  360,  49 
Atl.  582;  Huebner  v.  Eric  R.  R.  Co.,  69  N. 
J.  Law,  327,  55  Atl.  273;  King  v.  Atlantic 
City  Gas  Co.,  70  N.  J.  Law,  679,  58  Atl.  345; 
Wall  V.  Hinds,  4  Gray  (Mass.)  256,  64  Am. 
Dec.  64;  Luther  v.  Clay,  100  Ga.  236,  28 
S.  E.  46,  39  L.  R.  A.  95.  And  where,  as  here, 
the  defendant  railroad  company  had  author- 
ized its  attorney  to  act  and  speak  for  it,  at 
a  legally  authorized  hearing  by  the  Public 
Service  Commission  at  which  the  fire  in 
question,  and  the  defendant's  connection 
therewith,  was  under  investlRatlon,  evidence 
as  to  such  attorney's  statements  then  and 
there  made  with  respect  to  combustible  mat- 
ter on  such  right  of  way  at  the  time  of  the 
fire  was  admissible  in  evidence  against  the 
company  ih  this  suit  involving  that  issue, 
subject  to  the  latter's  right  to  disprove,  re- 
but, or  explain  such  statements. 

The  last  reason  urged  for  reversal  Is  that 
the  trial  Judge  refused  to  charge  as  follows: 


"Plaintiffs'  right  of  action.  If  any,  having  ac- 
crued September  27,  1908.  the  law  of  this  Btate 
presumes  that  plaintiffs'  demands  were  paid  or 
released  within  one  year  thereafter.  This  pre- 
sumption has  not  been  rebutted,  and  the  verdict 
must  be  for  the  defendant." 

The  defendant's  contention  was  and  is  that 
the  plaintiffs,  when  they  invoked  the  Juris- 
diction of  a  court  of  this  state  over  such  a 
cause  of  action  arising  in  New  York,  must 
accept  the  limitations  which  would  arise 
against  one  prosecuting  such  a  cause  of  ac- 
tion which  arose  in  this  state,  and  that  the 
courts  of  New  Jersey  vrill  presume  that  such, 
cause  of  action  has  been  released  or  settled 
at  the  expiration  of  the  period  of  one-year 
limitation  found  In  section  68  of  our  General 
Railroad  Act  (P.  L.  1903,  p.  674).  And  since 
that  section  only  applies  to  railroads  within 
this  state,  the  defendant  filed  pleas  of  pay- 
ment and  release  In  order  to  raise  that  ques- 
tion. 

Assuming  that  the  defendant's  contention 
respecting  the  presumptl<m  of  payment  or 
release  is  sound  to  a  certain  extent,  stiU  the 
refusal  of  the  Instruction  was  right. 

[4]  The  presumption  of  payment  or  re- 
lease arising  from  lapse  at  time  is  not  nec- 
essarily a  conclusive  and  absolute  presump- 
tion. The  lapse  of  time  gives  rise  to  a  con- 
clusive and  absolute  presumption  only  whMi 
not  satisfactorily  accounted  for  or  explain- 
ed, but,  when  so  accounted  for  or  explained, 
the  delay  still  remains  as  one  of  the  facta  in 
the  case  upon  which  the  ultimate  question  ot 
payment  -or  release  is  to  be  determined  in 
connection  with  the  other  evidence.  GuliCk 
V.  Loder,  13  N.  J.  Law,  71,  23  Am.  Dec  711 ; 
Blue  V.  £>verett,  66  N.  J.  Eq.  329,  86  Atl.  960, 
and  cases  there  dted. 

At  the  trial.  In  order  to  meet  the  defend- 
ant's pleas  of  payment  and  release,  and  to 
account  for  and  explain  the  delay  of  a  few 
days  beyond  one  year  from  the  time  of  the 
fire,  the  plaintiffs  proved  that  they  bad  not 
l>een  paid  and  had  not  released  the  defend- 
ant They  also  Introduced  evidence  tending 
to  show  that  immediately  after  the  fire  they 
put  their  dalm  in  the  bands  of  their  attorney 
who  had  many  Interviews  and  much  corre- 
spondence respecting  it  with  the  duly  author- 
ized attorney  of  the  d^endant;  that  in  the 
course  of  these  negotiations,  and  about  two 
weeks  before  the  expiration  of  one  year  from 
the  time  of  the  fire,  the  defendant's  attorney 
requested  the  plaintiffs'  attorney  to  delay  be- 
ginning suit  until  a  day  named,  whldi.  It 
appears,  was  one  day  beyond  the  one  year 
period ;  that  on  that  day  the  defendant's  at- 
torney Informed  the  piaiutifls'  attorney  that 
further  negotiations  were  useless,  and  within 
a  few  days  thereafter  this  suit  was  begun. 
In  tills  state  of  the  proofs  the  trial  Judge 
was  bound  to  and  did  submit  the  question  ot 
payment  and  release  to  the  Jury.  So,  too, 
he  was  bound  to  refuse  the  request  to  charge. 

[S]  Even  if  It  be  assumed  that  the  first 
paragraph  of  the  request  was  proper,  clearly 
the  second  paragraph,  whidi  called  for   a 


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McDERMOTT  t.  WOODHOUSK 


876 


direction  of  a  verdict  for  the  defendant,  was 
improper.  And  wlien  a  party  asks  for  an 
instruction  which  la  partly  good  and  partly 
bad,  it  Is  proper  to  refuse  it  altogether. 
Dederick  t.  Central  Railroad  Ca,  74  N.  J. 
Law,  424,  65  Att.  833. 

The  Judgment  under  review  will  be  affirm- 
ed, with  costs. 

(87  N.  J.  Bq.  OS) 

McDERMOTT  v.  WOODHOUSB.     (No.  63.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

June  18,  1917.) 

fSyllabu*  hv  the  Court.) 

1.  CoBPORATioNS  «=>562(1)— Insolvent  Cob- 
PORATiows — Stockholdeks'  LiABiirrr. 

The  receiver  of  an  insolvent  corporation  can 

enforce  a  stockholder's  liability  for  unpaid  stock 

issued  as  full  paid  only  in  the  right  of  creditors. 

[Ed.  Note.— For  other  cases,  see  Corporations, 

Cent  Dig.  {|  2265,  2266,  2268.] 

2.  CORPORATIONB  ®=>23(^ST0CKH0I.DEE9. 

The  obligation  of  holders  of  unpaid  stock  in 
a  corporation  issued  as  full  paid  is  to  pay  so 
much  of  what  is  unpaid  on  the  stock  as  will 
satisfy  the  claims  of  corporate  creditors  nnd 
meet  the  expenses  of  winding  up  its  affairs. 
Cumberland  Lumber  Go-  v.  Clinton  Hill  Lumber 
Mfg.  Co,,  67  N.  J.  Eq.  627,  42  Atl.  585,iollowed. 
[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  {  877.1 

3.  Corporations   €=»263(1)  —  Stockholdi&bs' 
Liability— AscEBTAiNiNO. 

The  amount  of  a  stockholder's  liability  on 
unpaid  stock  must  be  ascertained  in  the  forum 
of  the  corporation's  domicile,  in  a  proceeding 
to  which  the  corporation  itself  is  an  indispensa- 
ble party.  Wetberbee  v.  Raker,  35  N.  J.  Eq. 
SOI,  followed. 

[Ed.  Note.— Fbr  other  cases,  see  Ck>rporations, 
Cent  Dig.  !  1065.] 

4.  Corporations    4s>262(2)— Stockholders— 
Ljabilitt. 

A  stockholder  is  so  far  an  integral  part  of 
<the  corporation  that,  in  view  of  the  law,  he  is 
privy  to  the  proceedings  touching  the  body  of 
whidi  be  is  a  member.  Where  an  assessment 
for  unpaid  stock  is  made  in  a  proceeding  at  the 
dmnicile  of  the  corporation  to  which  the  cor- 
poration is  a  party,  the  stockholder  cannot 
•question  the  propriety  or  amount  of  the  assess- 
ment, although  be  may  contend  in  a  subsequent 
Action  against  him  personally  to  collect  the  as- 
sessment that  he  is  not  liable  at  all. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
<3ent  Dig.  H  1077,  2273.] 
H.  CoRFORATiona   «s>263(2) — Assessments'-- 

AMOtINT   OF. 

Tb»  propriety  and  amount  of  an  assessment 
upon  stodtholders  to  pay  creditors  are  internal 
affairs  of  the  corporation  with  which  the  courts 
.of  another  jnrisdiction  will  not  intermeddle. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
-Cent  Dig.  K  831,  1066.] 

-6.  Corporations  «=3259(2)  —  Stockholder's 
LiABiLiTT— Enforcement. 
A  stockholder  is  not  bound  to  pay  an  assess- 
ment on  his  stock  until  the  assessment  is  made 
and  he  can  know  how  much  he  has  to  pay. 
When  his  liability  has  been  ascertained  it  must 
be  enforced  in  a  court  of  law  uiilesa  some  ele- 
-ment  of  equity  Jurisdiction  appears.  Barkalow 
T.  Totten,  63  N.  J  ~  "      "     "     " 

McNaughton,  54 


T.  Totten,  63  N.  J.  Eq.  573,  32  Atl.  2;   Hood  v. 

McNaughton,  54  N.  J.  '         '""   " "" 

followed. 


Law,  425,  24  AH.  497, 


[Ed.  Note.— For  other  cases,  see  C!orporations, 
Cent  Dig.  H  1054,  2272.] 


Appeal  from  Court  of  Chancery. 

Bill  by  CSiarles  M.  McDermott,  receiver, 
against  William  Woodhouse,  Jr.  From  an 
order  denying  defendant's  motion  to  strike 
the  bUl  for  want  of  Jurisdiction  (99  Atl.  103), 
defendant  appeals.  Reversed,  and  record 
remitted  to  (Doort  of  Chancery  for  dismissal 
of  bilL 

John  A.  Hartpence,  of  Trenton,  for  ajh 
pellant  James  J.  McGoogan,  of  Trenton, 
for  appellee. 

SWATZEl,  J.  The  appellant  moved  to  dis- 
miss the  bill  for  want  of  equity.  His  motion 
was  denied,  and  he  appeals. 

The  bill  is  a  most  extraordinary  one.  It 
is  a  bin  filed  by  a  receiver  in  Insolvency  of  a 
New  Tork  corporation,  who  was  appointed 
by  oar  Court  of  Chancery,  and  seeks  to  estab- 
lish a  stockholder's  liability  for  stock  issued 
for  property  purchased,  as  Is  said,  at  a  gross 
overvaluation.  We  pass  over  the  informal 
statements  contained  in  the  bill,  and  put 
upon  it  the  best  face  possible.  The  corpo- 
ration Itself  is  not  made  a  party.  There  is 
nothing  to  show  that  a  receiver  has  ever 
been  appointed  in  New  York,  the  domicile 
of  the  corporation.  Nothing  Is  averred  In  the 
bill  which  would  Justify  onr  courts  in  ap- 
pointing a  receiver  In  Insolvency  of  a  New 
York  corporation.  The  draftsman  seems  to 
have  conceived  the  notion  that  under  oar 
statute  a  receiver  In  Insolvency  can  be  ap- 
pointed for  a  foreign  corporation  by  the 
same  procednre  that  Is  anthorized  in  the 
case  of  a  New  Jersey  corporation.  We  men- 
tion these  difficulties  because  they  are  of  so 
fundamental  a  character  that  we  ought  not 
to  pass  them  unnoticed,  and  thereby  appear 
to  Justify  what  seems  by  the  averments  of 
the  bill  to  have  been  an  unwarranted  inter- 
ference by  our  conrts  In  the  Internal  affairs 
of  a  foreign  corporation.  Probably  the  pro- 
ceedings for  a  receiver  were  ex  parte,  and  the 
attention  of  the  court  was  never  called  to  the 
fact  that  the  corporation  was  not  a  New 
Jersey  corporation.  The  matter  Is  important 
The  bill  seeks  to  do  what  can  only  be  done 
by  a  receiver  in  case  he  possesses  all  the  pow- 
ers of  a  statatory  receiver  in  Insolvency,  and 
shows  <Hi  its  face  that  the  utmost  powers  he 
conTd  have  would  be  those  of  a  mere  ancillary 
receiver  to  gather  in  the  assets  in  this  state. 

[1,2]  To  enforce  a  stockholder's  liability 
for  unpaid  stock  Issued  as  full  paid,  the  re- 
ceiver can  only  act  in  the  right  of  creditors. 
By  the  c<mtract  between  the  corporation  and 
the  stockholders  the  latter  have  no  further 
obligation  with  respect  thereto,  bnt  where 
stock  has  been  Issued  for  property  at  an 
overvaluation,  the  stockholders  may  In  a 
proper  case  be  held  for  the  deficiency.  But 
their  obligation  is  no  greater  than  the  ob- 
ligation of  stockholders  whose  subscriptions 
were  payable  in  cash,  that  is,  to  pay  so  much 
of  what  is  unpaid  on  the  stock  as  will  sat- 


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101  ATIANTIC  REPORTER 


<N.J. 


Iflfy  the  claims  of  corporate  creditors  and 
meet  the  expenses  of  winding  up  Its  affairs. 
Cumberland  Lumber  Co.  v.  Clinton  Hill  Lum- 
ber Mfg.  Co.,  57  N.  J.  Bq.  62T  to  629,  42  Atl. 
685.  In  that  case  we  reversed  a  decree 
which  ordered  payment  of  the  whole  amount 
remaining  anpald,  and  held  that  only  so 
much  should  be  paid  as  was  necessary  to 
satisfy  creditors. 

[3]  Since  this  is  the  limit  of  the  stockhold- 
er's obligation,  it  follows  that  the  amount 
must  be  ascertained  by  a  tribunal  which  has 
the  power  to  ascertain  the  total  amount  of 
the  debts  and  the  total  amount  of  the  assets 
of  the  corporation.  This  cannot  be  done  in 
a  forum  where  only  an  ancillary  receiver- 
ship is  possible.  It  must  be  done  In  the  for- 
um of  the  domicile.  The  bill  In  the  present 
case,  indeed,  sets  up  an  attempt  to  compel 
creditors  to  bring  in  their  claims  and  the 
entry  of  an  order  barring  creditors  in  the 
insolvency  suit  As  far  as  we  know,  the 
only  authority  for  such  a  proceeding  is  sec- 
Hon  75  of  the  Corporations  Act  (0.  S.  p. 
1648) ;  but  this  can  only  apply  to  a  New  Jer- 
sey corporation;  our  courts  cannot  force  a 
New  York  creditor  of  a  New  York  corpora- 
tion to  submit  his  daim  to  our  tribunals 
under  penalty  of  losing  all  tight  to  partici- 
pate in  the  distribution  of  the  assets.  It  Is 
manifestly  qtilte  as  necessary  to  ascertain  the 
total  assets  of  the  corporation  as  its  total 
liabilities  in  order  to  fix  the  amount  needcrd 
to  pay  creditors,  and  these  assets  can  only 
be  finally  ascertained  in  the  courts  of  the 
domicile  to  which  assets  may  be  remitted  by 
courts  of  other  forums  acting  through  an- 
cillary receivers,  as  In  Irwin  v.  Granite  State 
Provident  Association,  66  N.  J.  Eq.  244,  38 
Atl.  680. 

From  the  necessity  of  ascertaining  tbe 
amount  of  assets  and  liabilities  it  follows 
that  the  corporation  Itself  Is  a  necessary  par- 
ty to  the  suit.  We  said  In  Wetherbee  v.  Ba- 
ker, 85  N.  J.  Eq.  501,  at  page  608,  that  tlie 
oori)oratlon  is  indispensable  as  a  party  to  a 
suit  In  which  the  amount  of  its  property  and 
the  amount  of  its  debts  are  Involved.  Wheth- 
er it  would  have  been  possible  to  serve  pro- 
cess on  the  corporation  In  this  case  we  do  not 
know;  generally  a  foreign  corporation  could 
not  be  served,  since  few  such  corporations 
in  comparison  with  the  total  number  do  busi- 
ness In  this  state  or  subject  themselves  to 
its  jurisdiction.  In  the  present  case  the  com- 
plainant has  not  even  made  the  corporation 
a  party  to  tlie  bill.  This  defect  of  itself  is 
fatal. 

[4]  Again,  in  order  to  fix  a  stockholder's 
liability,  he  must  be  bound  by  the  proceedings 
to  determine  the  amount  thereof.  He  cannot 
be  bound  without  some  sort  of  notice,  and 
it  can  rarely  happen  in  the  case  of  a  large 
corporation  that  all  the  stockholders  are  sub- 
ject to  a  single  Jurisdiction,  and  It  Is  prob- 
able that  even  in  the  case  of  a  small  corpora- 
tion some  of  the  stockholders  reside  in  dif- 


ferent Jurisdictions.  That  seems  to  be  the 
present  case  where  the  stockholders  n  re  only 
seven  In  number.  For  a  time  this  difficulty 
of  subjecting  stockholders  to  the  jurisdiction 
of  a  single  tribunal  seemed  insuperable.  It 
was  finally  settled  in  Hawkins  v.  Glenn,  131 
U.  S.  319,  9  Sup.  a.  739,  33  L.  Ed.  184,  ap- 
plying the  rule  of  Sanger  v.  Upton,  91  D.  S. 
56,  23  L.  Ed.  220,  that  a  stockholder  Is  so 
far  an  integral  part  of  the  corporation  that. 
In  the  view  of  the  law,  he  Is  privy  to  the 
proceedings  toucliing  the  bo'dy  of  which  he  Is  a 
member.  We  have  adopted  this  rule  (Cumber- 
land Lumber  Ck>.  V.  Clinton  Hill  Lumber  Mfg. 
Co.,  67  N.  J.  Eq.  627, 42  Atl.  585),  after  express- 
ing some  doubt  as  to  its  soundness  In  Meley  v. 
Whitaker,  Receiver,  61  N.  J.  Law,  602,  604, 
40  Atl.  593,  68  Am.  St  Rep.  719.  See,  also, 
Gllson  V.  Appleby,  79  N.  J.  Eq.  590.  81  AtL 
025.  Where  the  assessment  is  made  in  a  pr(»- 
ceedlng  at  the  domicile  of  the  corporation  to 
which  the  corporation  Is  a  party,  the  stock- 
holder cannot  question  the  propriety  or 
amount  of  the  assessment,  although  he  may 
contend  In  a  subsequent  action  against  him 
personally  to  collect  the  assessment  that  be 
is  not  liable  at  alL  Coe  v.  Armour  Fertilizer 
Works,  237  U.  S.  413,  423,  35  Sup.  Ct  625, 
69  L.  Ed.  1027. 

The  propriety  and  amount  of  the  assess- 
ment must  be  determined  accorVilng  to  the 
statutes  and  Jurisprudence  of  the  domicile 
(Glenn  v.  Liggett  135  U.  S.  533,  648,  10  Sap. 
Ct.  867,  34  L.  Ed.  262),  and  when  so  deter- 
mined are  binding  everywhere  (Hancock 
National  Bank  v.  Famom,  176  U.  S.  640, 
20  Sup.  Ct  606,  44  U  Ed.  619).  That  the 
practice  has  been  to  bring  the  action  in  the 
courts  of  the  domicile  is  sufficiently  shown 
by  Easton  National  Bank  t.  American  Brick 
&  Tile  Co.,  70  N.  J.  Eq.  722,  04  AtL  1095, 
and  the  cases  therein  cited. 

[SI  These  considerations  make  It  clear 
that  the  propriety  and  amount  of  an  assess- 
ment to  pay  creditors  are  Internal  affairs  of 
the  cort>oration  with  which  the  courts  of  an- 
other Jurisdiction  will  not  intermeddle.  11- 
lustratlons  are  to  be  found  in  analogous 
cases  of  assessments  upon  members  of  Mu- 
tual Insnrauce  companies.  Condon  v.  Mutual 
Reserve  Fund  Ufe  Ass'n,  89  Md.  99,  42  Atl. 
944,  44  li.  R.  A.  149,  73  Am.  St  Rep.  169; 
Stockley  v.  Thomas,  89  Md.  663,  43  Atl.  766; 
Swing  V.  Consolidated  Fruit  Jar  Co.,  74  N. 
J.  Law.  145,  63  Atl.  899. 

[I]  So  far,  then,  as  the  bill  is  to  be  looked 
on  as  a  bill  to  compel  an  assessment  upon 
stockholders  to  pay  debts,  it  falls  tb  make 
out  a  case.  It  is  equally  futile  as  a  bill  to 
compel  a  single  stockholder  to  pay  his  in- 
dividual liability.  It  is  settled,  on  the  clear- 
est basis  of  reason,  that  the  stockholder  is 
not  boimd  to  pay  until  the  assessment  is 
made  and  he  can  know  how  much  he  has  to 
pay.  ScovlU  v.  Thayer,  105  U.  S.  143,  26  L. 
Ed.  968.  The  court  in  ScovlU  v.  Thayer  was 
dealing  with  the  defense  of  the  statute  o£ 


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liOVEIiAND  ▼.  MoK£KV£R  BKO& 


S77 


Umltadona.  After  saying  that  by  the  con- 
tract between  the  stockholder  and  the  com- 
pany the  stock  was  fully  paid,  and  that  no 
suit  could  have  been  maintained  by  the  com- 
pany to  collect  on  the  unpaid  stock,  and  that 
It  was  only  the  right  of  creditors  that  made 
the  action  maintainable,  the  court  added: 
"In  thia  case  there  was  no  obligation  resting 
<m  the  stockhcdder  to  pay  at  all  until  some  au- 
thorized demand  in  behalf  of  creditors  was  made 
for  payments.  The  defendant  owed  the  creditors 
nothing,  and  he  owed  the  ccHopany  nothing,  save 
such  unpaid  portion  of  his  stock  as  might  be 
neoesBsry  to  satiafy  the  claims  of  the  creditors. 
Upon  the  bankruptcy  of  the  company  his  ob- 
ligation was  to  pay  to  the  assignees,  upon  de- 
mand, such  an  amount  upon  his  unpaid  stock 
aa  would  be  sufficient  with  the  other  assets  of 
the  company,  to  pay  its  debt  He  was  under 
no  obligation  to  pay  any  more,  and  he  was 
under  no  obligation  to  pay  anything  until  the 
amount  necessary  for  him  to  pay  was  at  least 
approximately  ascertained.  Until  then  his  ob- 
ligation to  pay  did  not  become  complete." 

Following  that  ruling,  the  logic  and  Jus- 
tice of  which  we  do  not  question,  no  suit 
can  be  maintained  against  the  demurring 
defendant  until  the  amount  of  his  liability 
has  been  ascertained  by  proceedings  In  New 
York.  When  that  liability  has  been  ascer- 
tained It  must  be  enforced  in  a  court  of  law 
{Barkalow  v.  Totten,  63  N.  J.  Eg.  673,  32 
Atl.  2;  Hood  v.  McNaughton,  54  N.  J.  Law, 
425,  24  AtL  497),  unless  some  element  of 
equity  jurisdiction  appears,  not  present  In 
this  case  as  far  as  the  bill  shows. 

Tlie  decree  must  be  reversed,  and  the  rec- 
ord remitted  to  the  Court  of  Chancery  in  or^ 
der  that  the  bill  may  be  dismissed.  The  de- 
fendant Is  entitled  to  costs  in  both  courts. 


<W  N.  J.  Law.  7W) 
I/)VBLAND  V.  McKEEVER  BROS.,  In& 

<Conrt  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.) 

1.  Appeai  awd  Ebbob  *=»1010(1)— Scope  of 
Review — Gbocn  ds. 

Grounds  of  appeal  that  the  court  refused  to 
srant  motion  for  nonsuit  upon  the  evidence  for 
plaintiff  and  refused  to  give  judgment  for  de- 
fendant are  unavailing  if  there  is  any  evidence 
to  support  the  finding  of  the  trial  judge. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ff  3979-3981,  4024.] 

2.  Appeai.  ano  Ebrob  ®=>  1004(1)  —  SooFB  or 
Review— 6BO0ND9— Excessive  Damaoes. 

Excessive  damages  can  only  be  reduced,  and 
a  verdict  set  aside  because  against  the  weight 
of  the  evidence,  on  rule  to  show  cause  in  the 
court  in  which  the  trial  was  had ;  even  the 
l/egislature  is  powerless  to  confer  upon  the 
«ourt  of  errors  and  appeals  the  right  to  set 
aside  verdicts  because  against  the  weight  of 
evidence,  or  to  reduce  them  because  excessive. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
BSrror,  Cent  Dig.  {  3944.] 

Appeal  from  Supreme  Court 

Action  by  Benjamin  F.  Loveland  against 
McKeever  Bros.,  Incorporated.  Judgment 
toT  plaintiff,  and  defendant  appeals.  Af- 
firmed. 


James  Mercer  Davis,  of  Camden,  for  appel- 
lant OrlflSn  &  Griffin,  of  Jersey  City,  foi 
appellee. 

PER  CURIAM.  The  defendant  Is  the  own- 
er of  Crab  Island,  situate  In  little  Egg 
Harbor  Bay,  Ocean  county,  N.  J.,  on  which 
it  has  a  plant  for  the  rendering  of  menhaden 
fish,  caught  In  the  Atlantic  Ocean.  In  the 
conduct  of  this  business,  the  defendant  em- 
ployed the  plaintiff,  at  a  salary  of  $200  per 
m(Kith,  from  the  22d  day  of  July,  1911,  un- 
til the  24th  day  of  July,  1915.  From  July 
24,  1915,  until  March  31,  1916,  the  plaintiff 
drew  wages  at  the  rate  of  $50  per  month. 
Plaintiff's  salary  not  having  been  paid,  suit 
was  entered  against  the  defendant  for  the  en- 
tire amount  accruing  to  the  plaintiff  from 
the  date  of  his  employment  until  Ills  dis- 
charge on  the  date  last  mentioned,  and,  also, 
the  plaintiff  sued  for  certain  moneys  which 
be  had  expended  on  behalf  of  the  defendant, 
at  its  request,  claiming  in  all  a  balance  of 
$7,015.84.  The  defendant  filed  an  answer  and 
counterclaim.  The  answer  set  up  that  the 
plaintiff  agreed  to  devote  bis  exclusive  serv- 
ices to  the  care  of  defendant's  plant;  that 
in  violation  of  his  agreement  he  neglected  or 
refused  to  perform  those  services  for  long 
periods  of  time,  and,  Instead,  devoted  him- 
self to  private  enterprises  of  his  own,  and 
that  defendant  had  paid  plaintiff,  pursuant 
to  the  contract,  various  sums  aggregating 
$7,600.  By  way  of  counterclaim  the  defend- 
ant alleged  that  the  plaintiff  wrongfully 
engaged  in  private  business  of  his  own  and 
obtained  the  services  of  certain  employes  of 
the  defendant  to  assist  him  In  It,  and  charged 
their  compensation  to  the  defendant's  pay. 
roll;  that  plaintiff,  at  various  times,  used 
a  boat  belonging  to  defendant  in  his  private 
business,  and  damaged  the  defendant  there- 
by; that  plaintiff  so  negligently  and  care- 
lessly performed  his  duties  as  superintendent 
of  defendant's  plant  that  defendant  sustain- 
ed damage.  The  total  amount  demanded  in 
the  counterclaim  was  $7,700.  The  case  was 
tried  in  the  Burlington  county  circuit  court 
without  a  jury.  The  trial  judge  filed  the 
following  memorandum: 

"Carrow,  J.  I  find  that  the  plaintiff  properly 
performed  his  contract,  and  is  entitled  to  recov- 
er his  unpaid  compensation,  less  $90  for  the  use 
of  the  'Green  Garvey'  and  $24  for  the  use  of 
defendant's  men.  The  amount  which  I  find  is 
due  from  defendants  to  plaintiff  is  $2,395.82." 

From  the  judgment  entered  upon  this  find- 
ing the  defendant  has  appealed  to  this  court 
The  grounds  of  appeal  are  as  follows:  (1) 
Because  the  court  refused  to  grant  defend- 
ant's motion  for  a  nonsuit  upon  the  evi- 
dence for  the  plaintiff  given  at  the  trial;  (2) 
because  the  court  refused  to  give  Judgment 
for  defendant,  although  it  should  have  d<me 
so  on  the  evidence  given  at  the  trial;  (3) 
because  the  amount  of  the  judgment  was 
excessive;     (4)  because    the    finding   of   the 


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101  ATLANTIC  REPORTER 


(N.J, 


court  was  against  tbe  dear  weight  of  tbe 
evidence. 

[1]  The  first  two  grounds  of  appeal  are 
unaTalUng  to  the  appellant  If  there  be  any 
evidence  to  support  the  finding  of  the  trial 
Judge.  It  has  been  repeatedly  held  that  this 
court  will  not  review  the  findings  of  fact  in 
a  court  below  beyond  ascertaining  that  there 
was  evidence  to  support  such  findings.  See 
Lamed  v.  MacCarthy,  85  N.  J.  Law,  689,  90 
AtL  272;  also  EbeiAlng  y.  Mntlllod,  Ckmrt  of 
Errors  and  Appeals,  Mardi  term,  1917,  No. 
137.  An  examination  of  the  testimony  re- 
turned with  the  record  shows  that  there 
was  evidence  entitling  the  plaintlft  to  recov- 
er at  the  close  of  bis  case,  and  that  the  case 
was  in  the  same  posture  when  both  sides  rest- 
ed. Therefore  the  trial  judge  was  justified  In 
denying  the  motion  to  nonsuit,  and  also  In 
finding  for  the  plaintUf. 

[2]  The  third  and  fourth  grounds  of  ap- 
peal are  equally  valueless  to  the  appellant 
B^cesslve  damages  can  only  be  deduced,  and  a 
verdict  set  aside  because  against  the  weight 
of  the  evidence,  on  rule  to  show  cause  in 
tbe  court  in  which  the  trial  was  had.  Even 
the  Legislature  Is  powerless  to  confer  up- 
on this  court  the  right  to  set  aside  verdicts 
because  against  the  weight  of  evidence,  or  to 
reduce  them  because  excessive.  Flanlgan  v. 
Guggenheim  Smelting  Co.,  63  N.  J.  Law,  647, 
44  Atl.  762. 

The  judgment  under  review  moat  be  af- 
firmed, with  costa 


(M  N.  J.  Law,  nu 
HAXOR  AND  ALDERMEN  OF  JERSEY 
CITY  V.  HUBER,  CoUector. 
(No.  116.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

1.  Municipal  Corporations  e=>972(2>— Pcb- 
uo  Improvements  —  Special  Absessusnts. 

4  Comp.  St.  1910,  p.  5084,  i  4a,  relating  to 
the  taxation  of  lands  of  counties  and  taxing  dis- 
tricts situated  in  other  counties  or  taxing  dis- 
tricts, declares  that  such  lands  shall  be  subject 
to  taxation  without  regard  to  any  buildings  or 
other  improvements,  while  a  subsequent  section 
declares  that  the  lands  of  the  respective  coun- 
ties, cities,  and  other  agencies  of  tne  state  used 
for  tbe  purpose  of  water  supply  shall  be  subject 
to  taxation  by  the  respective  districts  in  which 
such  lands  shall  be  situated,  at  their  true  val- 
ue without  regard  to  any  buildings.  E«ld,  that 
an  assessment  upon  a  pipe  line  belonging  to  a 
municipality  other  than  the  one  maldng  the  as- 
sessment must  be  made  on  the  value  of  the  land 
alone,  and  not  on  the  value  of  the  improve- 
ments. 

2.  MUNICIPAI,  COBPORATIONB  «=>974(2)— TAX- 
ATION— Assessment— Delay   in   Taxing. 

Delay  of  municipal  authorities  In  question- 
ing an  assessment  made  by  a  second  municipal- 
ity upon  a  pipe  line  belonging  to  the  first  will 
not  prevent  a  subsequent  attack  on  such  assess- 
ment, the  doctrine  of  laches  applicable  to  indi- 
viduals not  being  appropriate. 

[Ed.  Note. — For  other   cases,   see  Municipal 
Corporations,  Cent.  Dig.  i  2085.] 


3.  Municipal  Corporations  *=»9T2(2)— Pub- 
uo  Improvements— What  Constitute. 
A  Dunicipality  constructed  an  aqueduct, 
not  as  a  busiuess  venture,  but  to  care  for  the 
present  and  future  needs  of  its  population,  and 
for  that  reason  made  it  larger  than  required 
at  the  present.  Held,  that  though  the  munici- 
pality disposed  of  tbe  excess  water,  yet,  as  the 
aqueduct  was  not  constructed  as  a  business  ven- 
ture, it  was  entitled  to  the  exemption  contained 
In  4  Comp.  St.  1910,  p.  6084,  §  4a,  and  so  could 
be  assessed  only  on  the  value  of  the  land,  and 
not  the  improvements. 

Appeal  from  Supreme  Court. 

Certiorari  by  the  Mayor  and  Aldermen  of 
Jersey  City  against  Lewis  P.  Hnber,  Collec- 
tor, etc.,  to  vacate  an  assessment  for  taxes. 
From  a  judgment  vacating  assessments,  de- 
fendant appeals.    Affirmed. 

Tbe  following  Is  tbe  opinion  of  the  Sa> 
preme  Court: 

Peb  Curiam.  [I]  The  assessment  by  the 
borough  of  Secaucus  upon  the  pipe  line  is  ille- 
gal. The  statute  (C.  S.  5084,  4a)  authorises  the 
taxation  of  real  estate  without  regard  to  any 
buildings  or  other  improvements  on  such  lands. 
This  was  meant  to  exclude  from  the  valuation  the 
value  added  by  the  improvements.  The  statute  ao- 
thorizes  the  levying  of  a  tax  upon  the  land  only 
of  another  municipality.    4  C.  S.  6085. 

[2]  It  is  argued  that  the  laches  of  the  officials 
of  Jersey  City  in  failing  to  attack  these  assess- 
ments must  result  in  a  denial  of  the  city's  claim 
upon  that  ground.  But  the  rule  is  otherwise  in 
the  public  interest,  and  the  doctrine  is  settled 
that  the  laches  of  an  official,  charged  with  the 
performance  of  a  public  duty,  cannot  operate 
to  bar  the  municipality  he  serves  from  asserting 
its  legal  rights.  Jersey  City  v.  North  Jersey 
St.  Ry.  Co.,  43  N.  J.  Law,  392,  61  Atl.  95. 

Tbe  result  is  that  the  assessments  for  taxes  for 
the  years  in  question  must  be  va<»ted. 

Harlan  Beeson,  of  Hoboken,  for  appellant. 
John  Milton,  of  Jersey  City,  for  respondent. 

PER  CURIAM.  The  judgment  should  be 
affirmed,  for  tbe  reasons  stated  by  tbe  Su- 
preme Court  In  Its  per  curiam  opinl<»i. 

[3]  It  Is  argued  here  tbat  the  land  and 
pipe  Une  are  not  exclusively  used  for  water 
to  be  supplied  and  used  in  Jersey  City,  but 
tbat  part  of  tbe  water  obtained  through  It 
Is  sold  to  corporations  and  individuals  out- 
side of  the  taxing  district,  and  therefore  the 
exemption  falls.  To  this  we  do  not  agree. 
The  aqueduct  was  not  constructed  as  a  busi- 
ness venture,  but  to  take  care  of  the  present 
and  future  needs  of  the  dty  and  its  inhabi- 
tants. The  pipe  was  made  larger  than  was 
Immediately  necessary  In  order  to  provide  for 
growth  of  the  dty.  The  sale  of  water  not  at 
present  needed  is  merely  Inddental,  and  the 
fact  of  such  present  sale  does  not  negative 
the  use  of  tbe  land  for  tbe  purpose  of  public 
water  supply  and  of  the  accompanying  ex- 
emption, so  long  as  said  land  Is  reasonably- 
needed  for  tbe  present  or  reasonably  antici- 
pated future  supply  of  Jersey  City  for  purdy 
public  purposes.  In  Newark  v.  Clinton,  49  N. 
J.  Law,  370,  8  Atl.  296,  there  was  a  separa- 
tion between  tbe  tract  used  for  public  pur- 
poses and  tbe  rest  of  the  land,  which  is  not 
the  condition  here. 


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BOUQUET  ▼.  HAOKENSACE  WATER  CO. 


879 


W  N.  J.  L«w,  m) 

BOUQUET  ▼.  HACKENSAOK  WATER  CO. 

(No.  21.) 

<Conrt  of  Errors  and  Appeals  of  N«w  Jarsey. 

June  la  1917.) 

(BtfUabua  by  the  Court.) 

L  Ndibawck   e=»72— Public   Nuisarcm— Ac- 
tion BY  iNDIVlDtJAL. 

In  _  order  that  an  indiridnal  may  maintain 
an  action  for  a  Dublic  nuisance,  be  must  prove 
that  he  thereby  suffers  a  particular,  direct,  and 
■ubstuitial  Injury  (dtinK  19  E.  R.  C.  263). 

rE3d.  Note. — For  other  cases,  see  Nuisance, 
Cent  Dig.  {{  184-169.] 

2L  Notbamcib    «=»72  —  Injtjbt    to    Rxfabian 

OwNEB— Spicial  Ihjtjby. 
A  riparian  owner  on  a  navigable  stream  suf- 
fers no  peculiar  injury  as  such  because  the 
stream  has  been  made  leas  pleasant  for  boating, 
fishing,  and  bathing.  The  injury  to  him  is  the 
same  as  that  to  any  other  member  of  the  pub- 
lic, and  for  the  reason  that  his  right  qua  ripa- 
rian owner  is  that  of  access,  and  not  a  spedal 
riKht  to  use  the  stream  in  any  different  manner 
than  others  may  use  it. 

rEd.  Note.— For  other  cases,  see  Nuisance, 
Cent  Dig.  »  164-169.] 

3.  Afpkai.  and  Ekbob  ®=>1033(8y— Nokinai. 

Dailaoks— Reterral. 
A  judgment  for  appellant  for  nominal  dam- 
ages, although  erroneous,  will  not  be  reversed 
if  he  was  not  entitled  to  any  damages. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S  4060.] 

White  and  Taylor,  JJm  dissenting. 

Appeal  from  Supreme  COurt 

Action  by  Mazlme  Bouquet  against  tbe 
Hackensack  Water  Company.  Judgment  for 
plaintiff  for  nominal  damages,  and  he  ap- 
peals.   Affirmed. 

Arthur  T.  Dear,  of  Jersey  City,  for  appel- 
lant Edwin  F.  Smith,  of  Jersey  City,  tor 
appellee. 

PARKER,  J.  Appellant,  plaintiff  Mow, 
claims  to  be  legally  aggrieved  by  tbe  action 
of  the  trial  Judge  in  directing  a  verdict  in 
his  favor  for  nominal  damages  of  six  cents. 

His  case,  as  finally  submitted,  was  that  he 
owned  land  on  tbe  easterly  side  of  the  Hack- 
ensack  river,  a  navigable  stream,  on  which 
land  was  a  dwelling  house  occupied  by  him 
and  used  for  the  keeping  of  summer  board- 
ers; and  that  prior  to  the^  summer  of  1914 
he  had  many  boarders  and  did  a  profitable 
business,  but  in  that  year  and  thereafter  the 
water  in  tbe  river  in  front  of  his  place  was 
fouled  by  the  act  of  the  defendant,  so  that 
it  was  not  so  pleasant  as  it  had  been  to 
look  at  or  so  available  for  fishing,  boating, 
and  swimming,  and  that  in  consequence  the 
boarders,  who  had  been  attracted  by  the 
view  and  tbe  boating,  fishing,  and  swimming, 
were  caused  to  remain  away,  whereby  plain- 
tiff suffered  material  loss.  There  was  some 
claim  of  an  odor  from  tbe  water,  but  this 
was  disregarded  at  the  trial  and  is  not  now 
urged.  The  view  taken  by  the  trial  court  was 
that  on  the  assumption  that  plaintiff's  title 


extended  to  high-water  mark  in  the  river,  the 
rights,  if  they  existed,  of  swimming  in  the 
river,  boating  on  it,  and  looking  at  the  view, 
were  not  special  rights  of  plaintiff  qua  ripa- 
rian owner,  or  of  his  guests  claiming  under 
his  license,  but  were  rights  of  a  purely  pub- 
lic character,  and  that  in  their  Infringement 
plaintiff  suffered  simply  as  a  member  of  the 
public  and  could  not  claim  special  damage 
in  a  private  action. 

[1, 2]  Our  examination  of  the  case  satisfies 
as  that  plaintiff  was  in  no  way  legally  In- 
jured by  this  ruling.  It  Is  not  claimed  that 
he  was  entitled  to  recover  in  this  suit  as  a 
member  of  the  public,  for  the  deprivation  of 
benefits  because  his  guests  found  the  river 
no  longer  pleasant  for  boating,  fishing,  or 
swimming.  The  claim  must  rest,  if  at  all,  on 
the  inj«u7  resulting  to  plaintiff  as  an  abut- 
ting owner.  But  the  right  of  an  owner  of 
the  ripa  of  navigable  water  is  that  of  access; 
and  U  that  be  unlawfully  interfered  with  he 
may  maintain  a  special  action.  Stevens  v, 
Paterson  &  Newark  R.  R.  Co.,  34  N.  J.  Law, 
532,  653,  3  Am.  Rep.  269.  Apart  from  this, 
be  has  no  iiecullar  ri{^t  to  the  use  of  the 
water  or  of  the  shore.  34  N,  J.  Law,  642, 
543,  3  Am.  Rep.  269;  Whitmore  v.  Brown, 
102  Me.  47,  65  Aa  516,  521,  9  L.  R.  A.  (N.  S.) 
868.  Plaintiff,  as  owner  of  land  on  or  near 
the  river,  may  have  more  occasion  to  make 
use  of  the  public  rights  of  boating  and  (if 
there  be  such  rights)  of  fishing  and  bathing, 
but  those  rights  remain  public  and  not  pri- 
vate. 

The  rule,  as  we  understand  it,  is  this: 
That  in  order  that  an  individual  may  main- 
tain on  action  for  a  public  nuisance,  he  must 
prove  that  he  thereby  suffers  a  particular, 
direct,  and  substantial  injury.  19  B.  R.  C. 
263.  The  same  rule  in  different  phraseology 
will  be  found  in  the  Mehrhoff  Case,  supra, 
61  N.  J.  Law,  66,  at  page  67,  16  Atl.  12.  It 
may  be  conceded  that  plaintiff's  injury  was 
substantial;  there  is  more  doubt  whether  it 
was  direct,  but  that  may  also  be  conceded 
for  the  sake  of  argument;  it  was  not,  how- 
ever, particular,  as  we  have  already  seen. 
The  result  is  that  the  trial  Judge  would  have 
been  Justified  in  awarding  a  nonsuit  or  in 
directing  a  verdict  for  the  defendant  All 
this  has  been  predicated  on  the  assumption 
that  plaintiff  exhibited  a  title  running  down 
to  high-water  mark.  The  case  does  not,  in 
our  Judgment,  show  that  be  gave  proof  of 
any  such  title.  His  deed,  offered  in  evi- 
dence, called  for  certain  lots  on  a  designated 
map  (which  map  was  not  put  in  evidence), 
and  the  only  mention  of  the  river  was  con- 
tained in  a  clause  in  the  deed  reading  as 
follows: 

"Together  with  all  right,  title  and  interest  of 
the  party  of  the  first  part  in  and  to  the  laud 
lying  between  high-water  mark  of  the  Hacken- 
sack  river  and  tbe  middle  of  Riverside  avenue, 
as  shown  on  said  map,  lying  directly  opposite 
or  in  front  of  such  of  the  property  above  de- 


»For  other 


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101  ATIiANTIO  REPORTER 


(N.J. 


■cribed   as  baa  a  frontam  on  aaid  Riverside 
avenue." 

There  was  no  proof  ot  what  that  right, 
title,  and  Interest  was,  or  that  there  was  any 
at  alL  It  afflrmattvely  appeared  that  there 
was  a  strip  several  feet  wide  between  River- 
side avenne  and  the  river.  If  plaintiff  did 
not  own  this  strip,  his  right  even  to  access 
to  the  river  was  no  better  than  that  of  an 
owner  of  land  a  long  distance  away,  or  one 
not  an  owner  at  alL  But  as  plaintiff  might 
peradventure  have  shown  some  title  as  a 
riparian  owner,  we  have  preferred  to  treat 
the  case  as  if  such  were  the  fact. 

[31  Inasmuch  as  plaintiff  was  not  harmed 
by  the  direction  in  his  favor  of  a  nominal 
verdict,  the  Judgment  will  be  affirmed.  Sy- 
pherd  v.  Myers,  80  N.  J.  Law,  321,  70  AU. 
340;  Bntterhof  ▼.  Butterbof.  84  N.  3.  Law, 
28S,  86  Aa  394. 

WHITE  and  TAYLOR,  JJ„  dissenting. 


(SO  N.  J.  Law,  6S«) 

MORE  et  aL  y.  RICHARDS.    SAM32  v.  MIL- 
NER.    SAME  V.  SILVER. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  19170 

(Bylldbui  ly  t%e  Court.) 

t,  COKPOBATIONS     "SsaSe? — INSOLVENCY— SET- 
OFF    AND      C!0UNTEBC£AIIf  —  UNLIQUIDATED 

DEitAN  D— Statute. 

The  defendants  agreed  in  writinK  to  produce 
from  their  respective  farina  tomatoes,  of  a  giv- 
en quality,  by  a  certain  time,  and  deliver  same 
to  the  vendee,  and  before  the  period  of  delivery 
mentioned  in  the  contract  the  vendee  was  de- 
clared insolvent,  and  receivers  were  appointed 
therefor. 

In  a  suit  by  the  receivers  to  collect  a  daim 
aeainst  the  defendants  for  fertilizer,  which 
claims  were  certain  in  amounts  and  admittedly 
correct,  the  defendants  set  up  by  way  of  set-off 
their  unliauidated  demands  aeainst  the  insol- 
vent company,  for  failure  to  receive  the  toma- 
toes, held,  that  being  unliquidated  the  demands 
were  not  capable  of  set-ofF  under  the  corporation 
act,  which  accords  the  right  of  set-off  only  to 
claims  arising  out  of  mutual  dealings. 

[Ed.  Note.— For  other  cases,  see  O>rporatlon8, 
Cent.  Dig.  i  2287.] 

2.   COBPOKATIONS      €=»567— INSOLVENCY— SET- 
OFF  AND    Counterclaim— Sales— Default 
OF  Buyer— Tender. 
The  defendants  had  not  perfected  their  right 

to  sue  because  of  failure  to  deliver  or  a  tender 

of  delivery. 
[Ed.  Note. — For  other  cases,  see  Corporations, 

Cent  Dig.  i  2287.1 

8.  COBPOBATIONS   «=»587— IWaOLVENOT— S»P- 

Off — CLAiirs— Pbeferencb. 
The  recognition  of  unliquidated  claims  not 
entitled  to  any  legal  preference  against  the  re- 
ceivers would  accord  to  such  claims  a  prefer- 
ence in  the  distribution  of  the  assets  of  the  in- 
solvent company,  contrary  to  the  provisions  and 
spirit  of  the  insolvent  act. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  t  2287.1 

Black,  White,  and  Heppenheimer,  JJ.,  dis- 
senting. I 


Appeal  from  C^coit  Court,  Cnmberland 
CJonnty. 

Suits  by  Richard  M.  More  and  others,  re- 
ceivers for  B.  S.  Ayars  &  Sons  Company, 
against  Charles  Q.  Richards,  Simon  Mllner, 
and  Charles  Silver,  wherein  defendants  in- 
terposed a  plea  of  set-off.  Judgment  for 
plaintiffs,  and  defendants  appeaL    Affirmed. 

Alvord.  &  Tuso,  of  Vlneland,  for  am>ellant8. 
Jamea  S.  Ware,  William  A.  Logue,  and  Wal- 
ter H.  Bacon,  all  of  Bridgeton,  for  appellees. 

MINTURN,  J.  The  respective  defendants 
in  these  three  suits  are  sued  by  the  receivers 
of  the  B.  S.  Ayars  &  Sons  (Company,  upon  con- 
tracts, similar  in  form  and  substance,  entered 
into  between  that  company  during  Its  active 
existence  with  each  of  the  defendants.  The 
company  sold  the  defendants  quantities  of 
fertilizer  for  their  respective  farms,  and  in 
turn  entered  into  the  agreements  in  question, 
whereby  the  defendants  respectively  contract- 
ed "to  plant  and  thoroughly  cultivate"  and 
to  deliver  to  the  company  spedfled  acreages 
of  tomatoes,  of  a  specified  quality,  during 
the  season  of  1913,  and  to  receive  from  the 
company  therefor  $8.25  per  net  ton. 

The  fertilizers  were  delivered,  but  the  to- 
matoes were  not  because  the  company  before 
their  fruition  had  become  insolvent,  and  had 
gone  into  the  hands  of  the  present  plaintiffs, 
as  receivers.  The  receivers  brought  suits  to 
recover  for  the  agreed  price  of  the  fertilizers, 
regarding  which  no  question  was  made.  The 
defendants  Interposed  pleas  of  set-off,  where- 
by they  alleged  that  they  were  damnified  by 
the  failure  of  the  company  to  execute  its  con- 
tract, by  accepting  delivery  of  the  tomatoes, 
to  an  amount  greater  than  the  agreed  price 
of  the  fertilizers,  which  damage  they  claim 
should  present  a  legal  set-off  to  the  plain- 
tiffs' claim. 

No  question  is  made  that  the  tomatoes  were 
raised,  and  that  in  every  essential,  but  the 
fact  of  delivery,  the  defendants  complied  with. 
their  contract  Upon  this  assumption  a  jury- 
was  dispensed  with  at  the  circuit,  and  by 
consent  of  counsel  the  legal  questions  arising 
upon  the  facts  were  submitted  to  the  court. 
It  was  conceded  that  the  tomatoes  matured 
from  day  to  day  after  August  1,  1913,  and 
that  the  receivers  .were  appointed  July  21, 
1913,  and  that  on  July  28, 1913,  a  restraining 
order  was  made  by  the  C!ourt  of  Chancery, 
enjoining  the  company  from  transacting  busi- 
ness, except  through  Its  receivers.  It  was 
also  In  evidence  that  the  receivers  did  not 
operate  the  company's  canning  factory.  Upon 
these  facts  the  court  found  for  the  plaintiffs, 
from  which  determination  these  appeals  are 
fallen. 

It  is  argued  that  the  Ayars  Company,  In 
its  sale  of  fertilizers,  was  the  agent  of  anoth- 
er company,  known  as  the  Tygest  Company. 
The  trial  court,  however,  found  it  unneces- 
sary to  Interpolate  this  fact  into  the  Issae, 


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N.X) 


STATE  V.  HOP 


881 


but  disposed  of  the  questions  upon  tbe  con- 
crete inquiry,  whether  under  the  facts  stated 
an  action  will  He  against  the  receivers. 

fl]  It  Is  apparent  that  when  the  receivers 
were  appointed,  these  contracts  had  not  ma- 
tured, and  therefore  no  delivery  had  been 
made,  and  that  no  tender  of  the  tomatoes  was 
thereafter  made.  The  case  therefore  Is  with- 
in the  narrow  compass  of  an  nnllquidated  de- 
mand, which  the  defendants  seek  to  offset 
against  a  distinct  Independent  and  liquidated 
demand,  which  the  plaintiffs  as  receivers  are 
called  upon  vlrtute  ofBcU  to  collect  for  the 
purpose  of  administering  the  affairs  of  an 
Insolvent  corporation,  whose  liability  for  the 
claim  In  question  at  the  time  of  adjudicated 
Insolvency  was  not  fixed. 

The  manifest  effect  of  a  Judgment  against 
the  receivers,  under  the  drcnmstances,  is  to 
single  out  these  defendants  among  the  credi- 
tors, and  concede  to  them  a  preference  upon 
claims  in  no  wise  distinguishable  from  the 
great  body  of  unpreferred  claims,  and  accord 
them  a  preferential  status,  conspicuously  op- 
posed to  the  letter  and  spirit  of  the  law 
which  liquidates  such  claims  upon  a  basis 
of  equality,  In  the  distribution  of  assets.  O. 
S.  p.  1652, 1  86;  Lehigh  v.  Stevens,  63  N.  J. 
"Eq.  107,  51  Atl.  446;  Doane  v.  MlUvllle  Ins. 
Co.,  45  N.  X  Bq.  274,  17  Atl.  625. 

[2]  It  Is  equally  obvious,  upon  well-settled 
principles,  that  In  order  to  acquire  a  legal 
status  for  the  purpose  of  maintaining  their 
suit  against  the  receivers,  and  of  pitting 
them  in  the  category  of  vendees,  or  the  legal 
representatives  of  vendees,  who  have  repudi- 
ated their  contracts,  the  defendants  should 
liave  tendered  performance  or  delivery  of 
the  subject-matter  of  the  contracts,  after 
the  period  provided  In  the  contracts  had  ar- 
rived. Florence  Mining  Co.  v.  Brown,  124 
TJ.  S.  385,  8  Sup.  Ct  531,  31  L.  Ed.  424 ;  Peo- 
ple V.  Globe  Mutual  Ins.  Co.,  91  N.  Y.  179. 
It  is  to  be  observed  that  the  corjwratlon.act 
(section  66)  provides  that  in  cases  of  mutual 
dealings  between  the  corporation  and  its 
creditor,  Just  set-offs  may  be  allowed  "ac- 
cording to  law  and  equity." 

The  situation  here  disclosed  presents  no 
appearance  of  mutual  dealings,  upon  which 
the  receivers  might  have  exercised  their 
Judgment  In  dealing  with  the  claims  upon 
the  basis  of  mutual  set-offs,  as  contemplated 
by  the  statute;  and  in  this  connection  It  Is 
also  to  be  observed  that  the  claims  In  ques- 
tion were  not  presented  to  the  receivers  upon 
oath,  for  administration  as  required  by  sec- 
tion 76  of  the  corporation  act  (2  Comp.  St. 
1.910,  p.  1648),  which  requires  every  claim 
against  an  insolvent  corporation  to  be  pre- 
sented to  the  receiver,  in  writing,  under 
oath. 

[3]  Quite  obviously,  therefore,  the  effort  Is 
to  obtain  by  Judgments  against  the  recelv- 
ei8  a  legal  status  which  will  accord  to  the 
delendants  a  preference  in  the  distribution 


of  corporate  assets,  superior  to  the  status 
accorded  by  law  to  the  ordinary  claimant. 
The  case  is  not  like  Bosenbaum  v.  Credit 
System  Co.,  61  N.  J.  Law,  543,  40  Atl.  591, 
where  no  injunctive  order  restrained  the 
defendant  from  transacting  business,  and 
permitted  the  plaintiff  to  continue  his  serv- 
ices under  the  receivership,  thereby  conced- 
ing to  him  a  legal  status  which  la  not  pre- 
sented by  the  record  before  us. 

The  result  of  these  considerations  Is  that 
the  Judgment  of  the  trial  court  must  be  af- 
firmed. 

BLACK,  WHITE,  and  HBPPBNHBIMBE, 
JJ.,  dissent 

(90  N.  J.  Law,  390> 
STATE  V.  HOP. 
(Supreme  Court  of  New  Jersey.    June  22, 1917.) 

(ByOabut  hy  the  Court.) 
L  CannNAi,  Law  <8=»1105(1)  —  Warr  ot  Eb- 

BOK— CERTnnCATION   OK   RECORD— REVIKW. 

In  order  that  a  defendant  may  have  the 
benefit  of  section  136  of  tbe  Criminal  Procedure 
Act  (2  Comp.  St  1910,  p.  1863),  the  trial  judge 
must,  in  addition  to  the  formal  and  ordinary 
return  to  a  writ  of  error,  certify  that  the  pro- 
ceedings transmitted  b^  him  to  the  court  of  re- 
view comprise  tbe  entire  record  of  the  proceed- 
ings had  upon  trial;  and  where  the  defendant 
neglects  to  obtain  such  a  certificate,  the  review 
is  limited  to  alleged  errors  arising  on  the  face 
of  the  record  itself,  or  upon  bills  of  exceptions 
duly  taken. 

[Ed.  Note.— E\>r  other  cases,  see  Criminal 
Law,  Cent  Dig.  {  2887.] 

2.  CBnaRAi,  Law  (S=>968(8),  1044— Abbbst  or 

Jtjdombnt — Motion— Evidence. 
A  lack  of  sufficient  evidence  to  make  out  the 
case  charged  in  tbe  indictment  is  not  a  ground 
for  arresting  Judgment.  In  order  to  raise  such 
a  question,  there  should  have  been  a  request  to 
direct  an  acquittal,  or  to  charge  in  conformity 
with  the  contention. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  H  2437,  26723674,  2676.] 

Ekror  to  Court  of  Quarter  Sessions,  Hud- 
son County. 

Sam  Hop  waa  convicted  of  sodomy,  and  he 
brings  error.    Afilrmed. 

Argued  February  term,  1917,  before 
TBE)NCaiABD  and  BLACK.  JJ. 

Charles  El.  S.  Simpson,  of  Jersey  City,  for 
plaintiff  in  error.  Robert  S.  Hudspeth,  Pros- 
ecutor of  the  Pleas,  of  Jersey  City,  for  the 
State. 

TRBNCHARD,  J.  The  d^endant  below 
was  convicted  In  the  Hudson  quarter  sessions 
court  on  an  Indictment  for  sodomy. 

[1  ]  The  return  to  the  writ  of  error  is  only 
the  formal  and  ordinary  return.  There  is 
no  certificate  by  the  trial  Judge  that  the 
proceedings  transmitted  by  him  to  this  court 
comprise  the  entire  record  of  the  proceed- 
ings had  upon  the  trial,  such  as  is  required 
to  obtain  a  review  under  section  136  of  the 
Criminal  Procedure  Act  (O.  S.  p.  1863).  Our 
review  is  therefore  limited  to  alleged  errors 


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arlslDg  aa  tbe  face  of  the  record  itself,  or  up- 
on bills  of  exceptions  duly  taken.  State  v. 
Webber,  77  N.  J.  Law,  580,  72  Atl.  74. 

There  Is  no  bill  of  exceptions,  and  tbe  only 
assignment  of  error  is: 

"Because  the  court  denied  the  motion  made 
on  behalf  of  the  defendant  before  Judgment  was 
announced  for  an  arrest  of  judgment." 

[2]  We  are  of  the  opinion  that  such  motion 
was  properly  denied.  The  sole  contention 
made  in  support  of  the  motion  Is  that  there 
was  not  sufiBclent  evidence  to  support  the 
conviction.  But  a  lack  of  sufficient  evidence 
is  not  a  ground  for  arresting  Judgment  In 
order  to  properly  raise  such  a  question,  there 
should  have  been  a  request  to  direct  an  ac- 
<iuittal  or  to  charge  in  conformity  with  the 
contention.  Powe  v.  State,  48  N.  J.  Law,  84, 
2  Ati.  662;  State  v.  Kelly,  84  N.  J.  Law,  1, 
87  Atl.  128.  No  such  request  was  made. 
However,  in  order  to  see  that  no  injustice 
has  been  done,  we  have  looked  into  the  ques- 
tion argued,  and  find  no  merit  in  it 

The  judgment  of  the  court  below  will  be  af- 
firmed. 


(90  N.  J.  Law,  UO 

PETER  BREIDT  BREWINa  CO.  v.  WEB- 
ER.   (No.  57.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

liANDLOBD  ARD  TKNANT  <S=>115(1)— MoNTH  TO 

Month  Tenancy — Construction  of  Lea7e. 
Under  a  lease  of  a  saloon  at  rental  of  $100 
per  month,  the  letting  is  one  from  month  to 
month,  and  the  fact  that  the  tenant  annually  ap- 
plies and  pays  for  a  license  in  compliance  with 
lease  does  not  change  the  terms  of  the  letting 
to  one  from  year  to  year. 

[Ed.  Note.— For  other  cases,  see  Landlord 
4Uid  Tenant,  Cent  Dig.  $  391.] 

White  and  Taylor,  JJ.,  dissenting. 

Appeal  from  Supreme  Court. 

Action  by  the  Peter  Breidt  Brewing  C!om- 
pany  against  Fred  Weber.  From  Judgment 
for  plaintiff,  defendant  appeals.  Reversed, 
and  venire  de  novo  awarded. 

William  R.  Wilson,  of  Elizabeth,  for  appel- 
lant.    John  J.   StanUer,   of  Elizabeth,  for 

appellee. 

KALISCH,  J.  The  fundamental  question 
presented  here  is  whether  the  trial  Judge  was 
warranted,  under  the  facts  and  circumstances 
of  this  case,  in  deciding  as  a  matter  of  law 
that  an  agreement  of  letting  between  the 
parties  was  one  from  year  to  year  and  re- 
quired a  three  months'  notice  to  terminate. 

The  agreement  between  the  parties,  which 
is  in  writing,  was  entered  into  by  them  on 
the  10th  day  of  June,  1910.  By  that  instru- 
ment it  appears  that  the  brewing  company 
agreed  to  let  the  premises  therein  mention- 
ed "to  the  appellant  at  a  monthly  rent  of 
one  hundred  dollars,  payable  in  advance," 
and  that  the  appellant  agreed  "to  pay  a 
monthly  rental  for  the  premises  of  one  hun- 
dred dollars  ($100.00)  per  month,  payable  in 


advance."  The  premises  were  let  to  tbe 
appellant  for  the  saloon  business.  The  brew- 
ing company  by  the  terms  of  this  agreement 
obligated  Itself  to  put  in  a  new  front  and 
to  make  such  repairs  and  innovations  on 
the  Interior  as  would  make  the  premises  suit- 
able for  the  saloon  business.  The  appellant 
obligated  himself  to  apply  for  a  license  or 
transfer  of  the  existing  license  to  the  ex- 
cise board  to  conduct  the  business  of  retail 
liquor  dealer  on  the  premises.  On  the  trial 
of  the  cause  it  appeared  that  on  the  2Sth 
day  of  July,  1910,  the  appellant  procured  the 
license  troia  the  board  of  excise,  and  that  he 
renewed  the  same  annually,  the  last  renew- 
al b^ng  from  July  26,  1915,  to  July  25, 1916. 

It  further  appeared  that  the  appellant 
paid  an  annual  license  fee  of  $500,  and  that 
the  brewing  company  spent  a  considerable 
sum  of  money  in  putting  the  premises  in 
condition  for  the  conduct  of  tbe  saloon  busi- 
ness. On  the  1st  day  of  November,  1915, 
the  appellant  vacated  the  premises,  having 
prior  thereto  given  30  days'  notice  to  his  land- 
lord of  his  intention  to  vacate  on  the  day 
mentioned  as  is  required  by  law  to  be  given 
to  terminate  a  tenancy  from  month  to  month. 

The  error  complained  of  by  appellant  is 
presented  by  exceptions  taken  to  that  part 
of  the  court's  diarge  in  which  he  defines  the 
nature  and  extent  of  the  term  agreed  on  by 
the  parties. 

Tbe  court  appears  to  have  assumed  that, 
because  appellant  paid  a  saloon  license  fee 
of  $500  year  after  year  from  June,  1910, 
to  July,  1915,  that  this  had  the  legal  effect  of 
fixing  the  term  of  the  lease  from  year  to  year. 
And  it  was  in  this  view  he  charged  the  Jury 
that  the  tenancy  was  not  a  monthly  one,  and 
that  the  appellant  could  not  relieve  himself 
from  the  obligations  of  the  lease  by  giving 
one  month's  notice  to  quit  to  his  landlord. 

But  this  view  is  clearly  untenable.  The 
written  agreement  entered  into  by  the  parties 
In  tbe  present  case  does  not  show  an  annual 
rental  reserved,  and  this  circumstance,  ac- 
cording to  StefCens  v.  Earl,  40  N.  J.  Law, 
137,  29  Am.  Rep.  214,  is  a  distinctive  feature 
of  a  yearly  letting,  but,  on  the  contrary,  the 
writing  shows  that  only  a  monthly  rental 
was  reserved,  and  in  these  express  terms, 
"and  to  pay  a  monthly  rental  for  the  store 
or  first  floor  and  the  basement  underneath 
same,  of  one  hundred  ($100)  dollars  per 
month,  payable  in  advance."  Concerning 
such  a  situation  Judge  Reed,  in  the  case  cit- 
ed, 40  N.  J.  Law,  on  page  137,  29  Am.  Rep. 
214,  said: 

"But  where  there  is  no  such  letting  [yearly], 
and  there  is  no  evidence  but  the  mere  fact  of 
payment  at  intervals  of  a  week  or  a  month,  the 
implication  is  that  the  renting  ia  a  monthly  or 
a  weekly  one,  just  aa  the  payment  is  monthly 
or  weeldy." 

The  letting  in  the  present  case  was  mani- 
festly a  monthly  one,  and  was  subject  to 
be  legally  terminated  by  either  party  giving 


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383 


one  month's  notice.  The  fact  that  the  tenant 
made  a  yearly  application  for  a  license  to 
conduct  his  baslness  did  not  have  the  legal 
effect  to  change  the  terms  of  the  letting.  The 
rights  and  obligations  of  the  parties  must  be 
determined  by  the  terms  of  the  contract 
of  letting.    This  was  apparently  not  done. 

The  Judgment  will  be  reTersed,  and  a  venire 
de  novo  awarded. 

WHITE  and  TAYLOR,  JJ.,  dissent 


(90  N.  J.  Law,  ETt) 

SEX3URITY  TRUST  CO.  t.  EDWARDS, 
Comptroller.    (Na  9T.) 

(Oonrt  «t  Eirrors  and  Appeals  of  New  Jersey. 
Jmie  18,  1917.) 

(SyUabu*  6y  tk«  Court.) 

Taxation  «=»898  —  Succession  Tat  —  Kjb- 
KAiNOEB— Suspension. 
Under  section  3  of  the  Succession  Tax  Act 
of  1909  (Comp.  St.  1910,  p.  5301),  where  there 
are  contingent  or  executory  interests  dependent 
upon  a  power  of  appointment,  the  appraisal  and 
taxation  thereof  is  suspended  until  the  exercise 
of  the  power. 

Appeal  from  Supreme  Court. 

Certiorari  by  the  Security  Trust  Company, 
executor,  etc,  against  Edward  I.  Edwards, 
Comptroller,  etc.  From  a  Judgment  of  the 
Supreme  Court  affirming  on  certiorari  a  suc- 
cession tax  on  life  interests  In  personalty 
and  also  a  tax  on  Interests  In  remainder, 
subject  to  a  testamentary  power  of  appoint- 
ment, the  prosecutor  appeals.  Affirmed  In 
part  and  reversed  in  part 

Ralph  E.  Lum,  of  Newark,  for  appellant 
Theodore  Backes,  Asst  Atty.  Gen.,  for  ap- 
pellee. 

PARKER,  3.  So  far  as  concerns  the  tax 
upon  the  life  interests,  all  questions  raised 
herdn  were  determined  by  the  Supreme  Court 
in  the  case  of  Maxwell  v.  EXlwards,  99  Atl. 
138,  the  Judgment  In  which  case  has  been 
affirmed  by  this  court  at  the  present  term. 
On  this  branch  of  the  case  the  Judgment  af- 
firming the  tax  will  be  here  affirmed. 

With  respect  to  the  Interests  in  remainder, 
the  respondent's  counsel  concedes,  quite  prop- 
erly, that  there  should  be  a  reversal.  The 
win  of  Howard  S.  Collins,  the  testator,  made 
Identical  provision  for  each  of  his  two  daugh- 
ters by  bequeathing  the  residuary  estate  to  a 
trustee,  upon  trust  to  pay  the  net  income  of 
one-half  thereof  to  each  daughter  for  life— 
"and  on  her  death  to  pay  over,  transfer  and 
convey  said  part  of  said  residue,  with  any  in- 
come not  paid  to  ber,  to  the  person,  persons, 
corporation  or  corporations  that  she  may  have 
desigiiatcd  and  appointed  bv  her  last  will  to 
take  the  same,  or,  in  default  of  a  valid  exer- 
cise of  her  by  will  of  the  power  of  appointment 
herein  conferred,  to  those  persons  who  under 
the  statutes  of  distribution  of  the  state  of  Con- 
necticut in  force  at  the  time  of  ber  death  would 
be  entitled  to  succeed  to  ber  intestate  estate  in 
the  proportions  therein  specified." 


The  residue  was  appraised  at  $66,905.34 
and  the  value  of  the  life  interests  bequeath- 
ed in  trust  at  $38,178.38,  which  latter 
amount,  or  the  balance  thereof  after  deduct- 
ing the  statutory  exemptions,  was  made  the 
basis  of  calculation  for  a  tax  of  1  per  cent 
as  property  transferred  to  children.  Section 
1,  par.  4,  of  act  of  1909  (C.  S.  p.  5301),  as 
amended  by  P.  L.  1914,  pp.  267,  269.  The 
remainder  of  the  residuary  estate,  or  $28,- 
726.96,  was  made  the  basis  of  a  S  per  cent 
tax  presently  imposed  as  subject  to  the  gen- 
eral rate  prescribed  In  the  same  paragraph. 
So  far  as  relates  to  this  remainder,  the  comp- 
troller seems  to  have  disregarded  the  provi' 
sions  of  section  3,  which  deals  with  estates 
in  expectancy  of  a  contingent  or  defeasible 
character,  and  the  particular  life  estates  sup- 
porting them.  Where  there  is  a  power  of  ap- 
pointment the  statute  provides  that: 

"The  appraisal  and  taxation  of  the  Interest  or 
interests  in  remainder  to  be  disposed  of  by  the 
donee  of  power  shall  be  suspended  until  tho 
exercise  of  the  power  of  appointment,  and  [they] 
shall  then  be  taxed,  if  taxable,  at  the  clear 
market  value  of  such  property,  which  value  of 
such  property  shall  be  determined  as  of  the 
date  of  the  death  of  the  creator  of  the  power." 

It  seems  quite  plain  that  in  obeying  this- 
mandate,  the  tax  on  the  Interests  in  remain- 
der will  normally  await  the  termination  of 
the  particular  estate;  and  counsel  urge,  a» 
a  ground  of  invalidity  of  such  tax,  that  it 
becomes  impossible  for  the  executor  or  trus- 
tee to  transfer  shares  in  New  Jersey  corpora- 
tions until  that  time,  without  submitting  Uy 
the  requirement  of  section  12  for  payment  of 
full  6  per  cent  tax,  which  was  upheld  In 
Senft  v.  Edwards,  85  N.  J.  Law,  67,  88  Atl. 
1026,  or  depositing  a  5  per  ceat.  tax  with 
the  comptroller  and  taking  out  a  waiver,  as- 
provided  in  chapter  58  of  the  Laws  of  1914. 
These  provisions  appear  to  be  aimed  particu- 
larly at  the  transfer  of  the  legal  estate  In 
stock  to  a  purchaser,  or  the  like,  rather  than 
at  the  particular  succession  of  a  legatee  in 
remainder.  There  is  also  the  provision  con- 
tained in  the  last  paragraph  of  section  3, 
permitting  the  compounding  on  equitable 
terms  of  a  tax  not  presently  payable,  which 
Is  evidently  the  "compromise"  mentioned  in 
Senff  V.  Edwards,  supra.  The  statutory 
scheme  is  not  obscure.  If  the  executor  wish- 
es to  sell  the  stock,  without  waiting  for  the 
spedflc  assessment  based  on  Interests  cre- 
ated by  the  will,  it  can  be  done  by  paying 
the  6  per  cent  tax  under  section  12,  or  de- 
positing it  under  the  act  of  1914,  page  97, 
subject  to  refund  of  excess  when  later  as- 
certained ;  or  by  paying  the  tax  on  the  par- 
ticular interests  as  presently  due,  and  com- 
promising that  against  the  remainders  upon 
an  equitable  ascertainment  of  its  present 
worth,  according  to  section  3.  We  are  unable 
to  see  that  this  scheme  gives  rise  to  any  un- 
just or  unconstitutional  discriminations.  It 
may  be  said  that  the  point  is  not  before  us 
except  as  contained  in  the  reasons  for  setting 


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aside  a  Ave  per  cent,  tax  on  remainders  pres- 
ently payable.  As  a  condition  of  permitting 
sale  of  securities,  sach  tax  has  tlie  support  of 
Senff  T.  Edwards  in  the  Supreme  Court  As 
a  pure  tax,  irrespective  of  sucb  sale,  it  is 
not  warranted  by  the  statute,  and  should  be 
set  aside.  To  this  extent  the  Judgment  of 
the  Supreme  Court  is  reversed. 


<90  N.  J.  Law,  ESS) 

SECURITY  TRUST  CO.  t,  EDWARDS. 
State  Comptroller. 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
Juno  18,  1917.) 

(Byllabui  by  the  Court.) 

Taxattow   «=»8'37(2)— Tkansfeb  Tax— Stock 

— Stattttes. 
The  interest  of  a  nonresident  deceased  pledge 
or  of  stock  of  a  New  Jersey  corporation  in  su^ 
stock  is  subject  to  the  transfer  tax  imposed  by 
the  act  of  1000  (P.  U  p.  3:^5;  4  Comp.  St.  1910, 
p.  5301)  as  amended  in  1914  (P.  L.  p.  207). 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  16S2.] 

Appeal  from  Supreme  Court 

Certiorari  by  the  Security  Trust  CSompany, 
executor  of  Leonard  Morse,  deceased,  against 
Edward  L.  Edwards,  State  Comptroller. 
From  a  Judgment  of  the  Supreme  Court  (89 
N.  J.  Law,  396,  99  Aa  133),  setting  aside  an 
Inheritance  tax,  the  Comptroller  appeals. 
Reversed,  with  direction  for  the  entry  of  an 
order  below  at&rmiug  the  ussesement  tax. 

John  W.  Wescott  Atty.  Gen.,  and  John  R. 
Hardin,  of  Newark,  for  appellant  Lum, 
Tamblyn  &  Colyer  and  Ralph  E.  Lum,  all  of 
Newark,  and  Joseph  If.  McCloy,  of  New  York 
City,  for  appellee. 

TRBNCJHARD,  J.  This  is  an  appeal  by 
the  state  comptroller,  defendant  in  certiorari, 
from  a  Judgment  of  the  Supreme  Court  set- 
ting aside  an  inheritance  tax  levied  under  the 
act  of  1909  (P.  L.  p.  325;  Ck>mp.  Stats,  p. 
6301),  as  amended  in  1914  (P.  L.  p.  267).  The 
prosecutor  below.  Security  Trust  Company, 
a  Connecticut  corporation,  is  the  executor  of 
the  win  of  Leonard  Morse,  who  died  resident 
in  Hartford,  Conn.,  on  April  2,  1915.  Morse 
left  no  real  estate  whatever,  either  within  or 
without  New  Jersey.  His  gross  estate 
amounted  to  $64,523.85,  and  by  the  will  went 
entirely  to  collaterals  or  those  unrelated  to 
the  testator.  The  estate  consisted  largely  of 
certain  securities,  viz.  corporate  stock  and 
four  bonds  appraised  in  the  aggregate  at 
$63,285.50.  All  of  these  securities  had  been 
pledged  by  Morse  in  his  lifetime,  accompanied 
by  a  power  of  attorney  in  blank,  to  the  Phoe- 
nix National  Bank  of  Hartford,  Conn.,  to  se- 
cure bis  promissory  note  of  $37,600,  upon 
wMch  there  was  due  $5.21  of  interest  togeth- 
er with  all  of  the  principal  amount,  at  the 
time  of  bis  death.  It  does  not  appear  that 
this  note  had  been  called  prior  to  the  death 
of  Morse,  or  that  the  pledgee  had  caused  any 


of  the  secnrities  to  be  transferred  to  it  or 
that  any  demand  had  been  made  upon  him 
prior  to  death  for  the  payment  of  the  note. 
Among  the  securities  so  pledged  were  New 
Jersey  stocks  appraised  in  the  aggregate  at 
$28,249.  The  comptroller  appraised  the  New 
Jersey  stocks  at  the  figures  above  mentioned, 
and  the  decedent's  interest  in  the  New  Jersey 
stocks  at  the  sum  of  $11,507.  This  amount 
was  obtained  by  prorating  the  amount  of  the 
loan  together  with  such  portion  of  the  gen- 
eral deductions  as  the  other  assets  were  in- 
suifident  to  meet,  over  all  of  the  stocks 
pledged.  The  value  of  the  equity  in  the  New 
Jersey  stocks  was  arrived  at  by  applying  to 
the  equity  in  all  of  the  stodis  the  fraction 
represented  by  the  value  of  the  New  Jersey 
stocks  over  tiie  value  of  all  the  securities 
pledged.  Treating  the  gross  estate  for  the 
purpose  of  taxation  as  the  value  of  the  equi- 
ty in  all  of  the  stocks,  plus  the  value  of 
the  other  assets,  the  comptroller  arrived  at 
the  proportion  demanded  by  the  method  of 
computation  prescribed  for  nonresident  es- 
tates in  section  12  of  the  act  (namely,  the 
ratio  of  the  New  Jersey  property  to  the  total 
property  wherever  situate),  which  proportion 
was  found  to  be  42.6  per  cent  The  tax  was 
then  calculated  in  the  manner  prescribed  in 
that  section  and  found  to  be  $527.66.  The 
comptroller  refused,  to  consent  to  the  trans- 
fer of  the  New  Jersey  stocks  to  the  executor 
of  the  decedent  unless  such  tax  upon  the 
decedent's  equity  therein  was  paid,  and  ac- 
cordingly it  was  paid.  The  amount  of  the 
tax,  L  e.,  the  method  of  computation,  is  not 
challenged,  and  with  that  we  are  not  con- 
cerned. 

The  only  question  presented  by  the  record, 
and  indeed  the  only  question  argued,  is  that 
decided  by  the  Supreme  Court  namely:  Is 
the  interest  of  a  nonresident  deceased  pledg- 
or of  stock  of  a  New  Jersey  corporation  In 
such  stock  subject  to  the  transfer  tax  Im- 
posed by  P.  L.  1909,  p.  325,  as  amended  by  P. 
U  1914,  p.  2677  We  are  of  the  opinion  that 
that  question  must  be  answered  in  the  affirm- 
ative. The  view  of  the  Supreme  Court  was 
that  Morse  had  ceased  to  be  the  owner  be- 
fore Ills  death;  hence  there  was  no  succes- 
si<Mi.  The  court  does  indeed  ref  w  to  hla 
"interest"  In  the  stock,  but  the  tenor  of  the 
opinion  appears  to  be  that  there  Is  no  taxa- 
ble succession  if  the  decedent  owned  anything 
less  than  the  entire  legal  and  beneficial  inter- 
est in  the  stock.  Such  a  view  ignores  the 
language  of  the  statute  (P.  L.  1909,  p.  326.  aa 
amended  by  P.  L.  1914,  p.  267)  taxing— 

"  •  •  •  the  transfer  of  any  property  •  •  • 
or  of  any  interest  therein  or  income  therefrom, 
in  trust  or  otherwise.  •  •  •  When  the  transfer 
is  by  will  •  *  •  of  shares  of  stock  of  cor- 
porations of  this  state,  *  *  *  and  the  de- 
cedent was  a  nonresident  of  the  state  at  the 
time  of  his  death.    •    •    •  "    Section  1. 

"26.  'The  words  'estate'  and  'property*  where- 
ever  used  in  this  act  •  •  •  shall  be  construed 
to  mean  the  interest  of  tiie  testator     *     •     • 


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385 


passing  or  traaafcrnd  to  the  (gucceasors).  *  *  * 
The  word  'transfer'  as  used  in  this  act,  shall  be 
taken  to  include  the  passing  of  proper^  or  any 
interest  therein,  in  possession  or  enjoyment, 
present  or  futore,"  etc.    Section  26. 

The  only  authority  dted  by  the  court 
below  is  that  of  Snrrogate  Fowler  of  New 
Tork  county  In  Re  Ames,  141  N.  Y.  Supp. 
793  (1913).  But  that  decision  Is  In  conflict 
with  the  doctrines  of  the  highest  court  of 
New  Tork,  as  we  shall  show. 

We  think  that  a  nonresidoit  pledgor's 
Interest  In  New  Jerseor  stocks  is  a  property 
interest  which  has  a  situs  here  for  the  pur- 
pose of  succession  taxation.  As  between 
the  pledgor  and  pledgee,  the  pledgor  is  still 
the  general  owner.  The  pledgee  has  a  special 
property  only  and  upon  payment  of  the  debt 
this  is  extinguished.  That  rule  has  t>een 
frequently  stated  and  applied  without  chal- 
lenge by  Bngliah  Judges.  In  the  early  case 
of  Mores  r.  Conham,  Owen,  123,  74  English 
Reprint,  946  (1610),  the  court  recognized  that 
the  right  of  the  pledgee  was  but  a  special 
interest  In  C!ogg8  ▼.  Bernard,  Ld.  Raym. 
909,  1  Smith's  Leading  Cases,  'lOd  (1702), 
Chief  Justice  Holt  stated  the  same  principle. 
The  learned  annotator  at  page  •228  says : 

"A  pawn  never  conveys  the  general  property 
to  the  pawnee,  bnt  only  a  special  property  in 
the  thing  pawned;  and  the  oSect  of  a  default 
in  payment  of  the  debt  by  the  pawnor  is,  not 
to  vest  the  entire  property  of  the  thing  pledged 
in  the  pawnee,  but  to  give  him  a  power  to  dis- 
pose of  it,  accounting  for  the  surplus,  wliich 
power,  if  he  neglected  to  use  the  general  proper^ 
t;  of  the  tiling  pawned,  continues  in  the  pawnor, 
wlio  has  a  right  at  any  time  to  redeem  it." 

Another  leading  case  is  Donald  v.  Suckling, 
Lu  H.  1  Q.  B.  585,  35  I*  J.  Q.  B.  232.  Another 
famous  case  is  Sewell  v.  Burdick,  10  App. 
Cas.  74,  64  L.  J.  Q.  B.  156  (1884)  where  Lord 
Fitzgerald  says  that: 

The  pledgees  "acquired  a  special  property  in 
the  goods,  with  a  right  to  take  actual  posses- 
sion should  it  be  necessary  to  do  so  for  their 
protection  or  for  the  realization  of  their  security. 
They  acquired  no  more,  and,  subject  thereto, 
tho  general  proi>erty  remained  in  ue  pledgor. 

A  very  recent  opinion  by  the  Privy  Council 
In  a  prize  case  is  The  Odessa,  [1916]  1  A.  0. 
145,  affirming  (1915)  p.  52.  Prior  to  the 
outbreak  of  the  European  war  German  own- 
ers of  the  cargo  had,  by  assignment  of  the 
bills  of  lading,  pledged  the  cargo  to  British 
bankers  for  advances  made  prior  to  the  out- 
break of  the  war.  After  the  war  began  and 
while  the  vessel  was  on  the  high  seas  the 
cargo  was  seized  and  condemned  as  a  prize. 
The  contest  was  between  the  British  pledg- 
ees and  the  crown.  Lord  Mersey,  speak- 
ing  for  the  court  says: 

"All  the  world  knows  what  ownersliip  is.  and 
that  it  is  not  lost  by  the  creation  of  a  security 
upon  the  thing  owned." 

Our  own  decisions  are  tiniformly  to  the 
same  effect  In  Donnell  v.  Wyckoff,  49  N. 
J.  Law,  48,  7  AtL  672  (Supreme  Court, 
1886),  wherein  the  subject-matter  of  the 
pledge  was  corporate  stock,  Justice  Depue 
said  (49  N.  J.  Law,  page  49,  7  AtL  page  672) : 
101A.-25 


"Upon  a  pledge  of  property  as  -security,  for  a 
debt,  the  pledgee  has  only  a  special  property. 
The  general  property  is  in  the  pledgor,  subject 
to  the  rights  of  the  pledgee." 

In  Broadway  Bank  v.  McElrath,  13  N.  J. 
Eq.  24  (Chancellor  Green,  1860),  the  con. 
flictlng  rights  of  a  pledgee  of  stock  and  the 
attaching  creditors  of  the  pledgor  were  dealt 
with.  It  would  appear  from  the  opinion  that 
the  court  entertained  no  doubt  that  the  in- 
terest of  a  nonresident  pledgor  in  stock  of 
a  New  Jersey  corporation  pledged  to  a  non- 
resident was  subject  to  attachment  under 
the  New  Jersey  statute,  and  the  court,  on 
page  26,  says  that  the  rights  of  the  creditors 
were  unquestioned  except  so  far  as  they  con- 
flict with  the  rights  of  the  pledgee.  And 
speaking  of  the  effect  of  a  pledge,  says : 

"The  absolute  ownership  of  the  stock,  it  la 
true,  was  not  transferred,  nor  was  it  intended 
it  shoold  be." 

In  Meisel  v.  Merchants'  National  Bank, 
85  N.  J.  Law,  253.  88  Atl.  1067  (Court  of  Er- 
rors, 1913),  It  was  said,  In  effect  that  the 
pledgor  has  the  right  to  bring  a  possessory 
action  against  the  pledgee  to  recover  the 
stock  Itself,  providing  only  he  makes  and 
keeps  good. a  tender  of  the  debt 

In  McCrea  v.  Tule,  68  N.  J.  Law,  465,  68 
AtL  210,  the  Supreme  Court  In  1902,  In  a 
case  of  an  assignment  of  a  chose  In  action 
as  collateral  security,  said  (68  N.  J.  Law, 
page  467,  53  Atl.  page  211): 

"A  pledgee  of  personal  property,  assigned  as 
collateral  security,  has  the  right  to  collect  the 
interest,  dividends,  and  income  accruing  on  the 
collateral  assigned,  accounting  to  the  pled|ror 
upon  the  redemption  of  the  pledge.  In  making 
such  collections  the  pledgee  is  a  trustee  of  the 
pledgor  to  see  to  the  proper  application  of  the 
funds  C(41ected  or  to  refund  the  samo  to  th4 
pledgor  if  the  debt  be  otherwise  paid." 

Id  Mechanics'  B.  &  L.  Ass'n  v.  Oonover, 
14  N.  J.  Eq.  219  (reversed  on  other  grounds, 
Herbert  v.  Mechanics'  B.  &  L.  Ass'n,  17  N. 
J.  Eq.  497,  90  Am.  Dec.  601),  the  conrt  said 
that  when  shares  of  stock  are  pledged,  they 
"remain  the  pr<^erty  of  the  shareholder  for 
every  purpose  excepting  that  of  defteting 
the  lien"  of  the  pledgee. 

In  the  United  States  Supreme  Court  draw- 
ing the  familiar  distinction  between  a  chattel 
mortgage  and  a  pledge,  Mr.  Justice  Pitney 
says,  In  Dale  v.  Pattison,  234  U.  S.  399,  405, 
34  Sup.  Ct  785,  788  (58  L.  Bd.  1370,  52  L. 
R.  A.  [N.  S.]  764) : 

"On  the  other  hand,  where  title  to  the  prop- 
erty is  not  presently  transferred,  but  posses- 
sion only  is  given,  with  power  to  sell  upon  de- 
fault in  the  jierformance  of  a  condition,  the 
transaction  is  a  pledge,  and  not  a  mortgage." 

The  law  of  (Connecticut  appears  to  be  to 
the  same  effect  In  Robertson  v.  Wilcox,  36 
Conn.  426  (1870),  the  highest  court  of  that 
state,  36  Conn,  at  page  430,  said : 

"A  pledge  of  property  does  not  carry  with 
it  the  title  to  the  thing  pledged.  The  title  re- 
mains as  before.  All  that  passes  to  the  pledgee 
is  the  right  of  possession,  coupled  with  a  spe- 
cial interest  in  the  prwerty,  in  order  to  pro- 
tect the  right" 


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101  ATrANTIO  RBPORTBB 


(N.J, 


It  la  this  Intangible  proprietary  Interest 
of  the  pledgor  In  the  corporate  property  that 
the  pledgor's  executor  succeeds  to. 

Now  the  doctrine  Is  too  well  established 
to  need  discussion  that  the  stock  of  a  New 
Jersey  corporation  has  a  situs  In  this  state 
and  Is  subject  to  succession  taxation  here. 
Mxon  V.  Kussell,  79  N.  J.  Law,  490,  7C  Atl. 
982  (Court  of  Errors) ;  Carr  r.  Edwards,  84 
N.  J.  Law,  667,  87  AtL  132 ;  Hopper  v.  Ed- 
wards, 88  N.  J.  Law,  471,  96  Atl.  667. 

The  matter  Is  nowhere  more  fully  and  ably 
discussed  than  In  the  opinion  of  Mr.  Justice 
Garrison  in  the  Supreme  C!ourt  In  Nellson 
V.  Russell,  76  N.  J,  Law,  27,  69  AtL  476 
(1908),  reversed  on  another  point,  76  N.  J. 
Law,  655,  71  Aa  286,  19  L.  R.  A.  (N.  S.)  887, 
131  Am.  St  Rep.  673  (1908).  The  following 
is  quoted  therefrom,  not  for  the  purpose  of 
Biq)portlng  this  elementai7  proposition,  but 
as  Illuminating  the  precise  question  under 
review  in  the  present  case  (76  N.  J.  Law, 
page  35,  69  Atl.  page  479) : 

"In  this  country,  where  the  ^neral  doctrine 
of  the  state  courts  is  that  the  situs  of  property 
governs  its  liability  to  succession  taxes,  the 
weight  of  authority  is  that  stock  in  a  corpo- 
ration is  subject  to  the  impositioo  of  succession 
taxes  by  the  state  that  created  the  corporation, 
and  that  in  this  regard  the  place  of  residence 
of  the  deceased  stockholder  is  immaterial." 

The  case  of  Amparo  Mining  CV>nipany  T. 
Fidelity  Trust  Oo.,  75  N.  J.  Bq.  555,  73  AU. 
249  (Court  of  Errors,  1909),  affirming  opin- 
ion of  Vice  Chancellor  Stevenson  in  74  N.  J. 
Eq.  197,  71  AU.  605,  is  also  Instructive. 
There  the  Jurisdiction  of  the  courts  of  the 
state  of  incorporation  over  the  enforcement 
of  property  Interests  in  stock  as  against  non- 
residents was  upheld. 

It  being  firmly  established  that  the  stock 
la  subject  to  succession  taxation  by  the  state, 
it  necessarily  follows  that  not  only  is  the  en- 
tire legal  interest  in  the  stock  subject  to 
taxation  by  the  state,  but  as  well  every  un- 
divided or  fractional  Interest  In  any  such 
given  share  of  stock,  and  as  well  any  pro- 
prietary Interest  in  such  share  of  stock, 
though  it  be  an  Interest  of  a  quality  different 
in  character  from  a  mere  fractional  or  other 
legal  Interest  less  than  the  whole.  The  in- 
terest of  a  pledgor  of  a  share  of  stock  being 
such  a  proprietary  Interest  in  the  share  of 
stock  itself,  and  the  stock  being  taxable,  it 
follows  that  the  pledgor's  Interest  is  tax- 
able, whether  it  be  called  an  equity  of  re- 
demption or  by  some  other  name. 

We  need  not  dwell  on  the  distinctions 
which  exist  in  respect  to  situs  for  the  purpose 
of  property  taxes,  on  the  one  hand,  and  suc- 
cession taxes,  on  the  other.  The  argument 
of  respondent  is  not  forwarded  by  calling 
the  pledgor's  right  an  equity  of  redemption, 
or  chose  in  action,  or  an  intangible.  The 
stock  Itself  is  a  chose,  and  intangible.  While 
an  intangible  right  has  really  no  locality.  It 
must,  in  the  nature  of  things,  have  ascribed 
to  it  a  situs  for  legal  purposes.  The  situs 
is  based  on  the  power  of  the  sovereign,  and 


if  the  sovereign  has  power  to  deal  with  It 
effectively  as  a  property  right,  it  may  tax 
it  as  having  an  ascribed  situs  within  its  Juris- 
diction. 

The  Aii4>aro  Mining  Company  Case,  8iq>ra, 
at  once  suggests  such  power.  We  note  es- 
pecially the  attitude  of  the  court  towards  the 
rights  of  bona  fide  holders.  If  any  one  class 
of  such  holders  was  more  prominently  in  the 
mind  of  the  court  than  another,  it  was  prob- 
ably that  of  pledgees.  But  the  court  did  not 
turn  aside  from  rendering  Judgment  because 
of  the  possibility  that  a  nonresident  owner 
had  pledged  his  stock  to  a  nonresident,  which, 
if  respondent's  argument  be  sound,  would  at 
once  have  ousted  the  court  of  Jurisdiction. 

It  can  hardly  be  doubted  that  the  pledgor 
could  resort  to  our  courts  to  enforce  a  con- 
flicting property  right  in  respect  to  his  stock, 
and  that  because  he  could  obtain  effective 
relief  nowhere  but  in  the  domicile  of  the  cor- 
poration. To  be  more  concrete,  suppose  that 
Morse,  a  resident  of  Connecticut,  had  pledg- 
ed New  Jersey  aUxik.  to  residents  of  Mas- 
sachusetts and  New  York  Jointly,  and  that 
the  latter  wrongfully  delivered  the  same  to 
a  resident  of  Oregon,  and  that  the  stock  had 
no  market  value.  See  Safford  v.  Barber,  74 
N.  J.  Eq.  352,  70  Atl.  37L  Where  could 
he  obtain  relief  except  in  New  JerseyT 
Gregory  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  40  N. 
J.  Eq.  38.  Who  would  doubt  that  sudi  a  suit 
would  be  quasi  in  rem  I 

The  New  York  courts  recognize  that  the 
pledgor  has  a  residuary  Interest  In  Warner 
V.  Fourth  NaUonai  Bank,  U5  N.  Y.  251,  22 
N.  E.  172,  the  interest  of  a  nonresident  pledg- 
or of  notes  held  in  pledge  by  a  resident  was 
held  to  be  subject  to  attachment  In  Mew 
York  state.    Judge  Gray  says: 

"The  title  to  property  may  remain  in  the 
pledgor,  but  the  pledgee  has  a  lien,  or  special 
property,  in  tho  pledge,  which  entitled  him  to 
Its  possession  against  the  world." 

And,  further: 

"The  pledgor's  residaary  interest  in  the  pledge 
constitutes  a  claim  or  demand  upon  the  pledgee, 
which  is  property,  and  hence  may  become  the 
subject  of  attachment." 

And  again: 

"We  think  the  attachment  in  question  here 
operated  to  secure  to  the  (attaching  creditor)  the 
lien  upon  the  pledged  property,  to  the  extent  of 
the  interest  ol  the  (pledgor),  and  that  interest 
was  the  right  to  the  pledged  property,  or  so 
much  of  it  or  of  its  proceeds  from  any  collec- 
tion as  remained  after  tho  satisfaction  of  the 
pledgee's  claim  for  advances." 

See,  also,  opinion  of  the  same  Judge  In 
Simpson  V.  Jersey  City  Contracting  Co.,  185 
N.  Y.  193,  58  N.  B.  896,  55  L.  &.  A.  796,  where 
it  is  said: 

"The  pledgee  obtains  a  special  property  la 
the  tiling  pledged,  while  the  pledgor  remains 
general  owner." 

The  most  distinguished  New  York  Jndge  of 
all  times,  C3iancellor  Kent  expressly  held 
in  Cortelyou  v.  I^nsing,  2  Caines  Cases,  :iOO, 
2  N.  Y.  Ommon-Law  Reports  802  (1805), 
that  the  legal  property  in  a  pledge  does  not 


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387 


pass  as  In  the  case  of  a  mortgage  with  de- 
feasance ;  that  the  general  ownership  remain- 
ed with  the  pledgor,  and  only  a  special  prop- 
erty passed  to  the  pledgee,  and,  fnrther,  that 
the  pledgor's  Interest  passed  to  hla  admin- 
istrators. 

If  the  stock  has  a  situs  here,  where  else 
can  be  the  sltns  of  the  residuum?  If  the  In- 
terest of  the  pledgee  Is  less  than  absolute 
and  unqualified  ownership,  how  can  the  resid- 
uary interest  of  the  pledgor  have  a  situs 
other  than  that  of  the  subject  of  the  pledge? 
Tbe  stock  never  ceases  to  have  a  situs  in 
this  state,  whoever  may  be  tbe  owner.  Neil- 
son  V.  Russell,  supra.  If  the  transfer  of 
full  ownership  does  not  change  the  situs  of 
the  property,  how  can  the  transfer  of  a 
limited  right  take  out  of  the  Jurisdiction  or 
affect  the  situs  of  what  of  tbe  rights  of  own- 
enhip  remain  after  such  partial  transfer? 
The  tax  Is  in  rem;  the  res  is  the  succes- 
■ion  to  the  proprietary  right  that  a  stock- 
holder has  in  a  corporation  of  this  state.  Un- 
less the  whole  of  the  proprietary  right  be 
transferred,  the  remainder  must  be  taxable 
here  as  property  of  the  pledgor  having  a 
situs  here,  to  which  his  executor  succeeds. 
Of  course  the  stock  has  a  situs  here;  and 
the  general  property  in  the  thing  pledged 
must  continue,  notwithstanding  the  pledge, 
to  have  a  legal  situs  here  for  the  purpose  of 
the  taxation  of  the  succession  to  such  gen- 
eral property. 

The  power  to  tax  being  established,  we 
have  no  difficulty  in  finding  in  the  statute 
the  Intention  to  do  so.  It  is  clear  that  every 
proprietary  interest  of  whatever  nature  in 
those  species  of  property  subject  to  tax  1b 
Included.  The  fourth  subdivision  of  section 
1  imposes  tax  "upon  the  clear  market  value" 
of  the  property,  which  Impliedly  recognizes 
that  the  prtq;>erty  taxed  may  be  Incumbered. 
Sections  2  and  3  tax  future  and  contingent 
estates  of  every  character.  Section  12  for- 
bids the  transfer,  by  a  corporation,  without 
the  comptroller's  waiver,  of  shares  of  stock 
of,  "or  other  interests  In,"  the  corporation. 
Tbe  last  paragraph  of  section  12  (the  ratio 
provision)  necessarily  contemplates  that  every 
kind  of  property  Interest  be  brought  Into 
hotchpot,  and  puts  the  nonresident  on  the 
same  footing  as  the  resident.  Section  26  says 
that  the  wonl  "transfer"  shall  be  taken  to 
Include  tbe  passing  of  "any  interest"  in  prop- 
erty, present  or  future.  Such  words  as 
"property"  and  "Interest"  are  ordinarily 
used  in  a  revenue  act  in  a  popular  sense,  and 
ibonld  be  broadly  construed.  Smelting  Co.  v. 
Comm.  of  Inland  Revenue  (1896)  2  Q.  B.  179, 
66  Ia  J.  Q.  B.  513  (affirmed  1897)  1  Q.  B.  176, 
66  U  J.  Q.  B.  137).  In  the  Matter  of  Whit 
tog,  150  N.  X.  27,  44  N.  E.  715,  34  L,  R.  A. 
232,  55  Am.  St.  Rep.  640.  The  pledgor's 
"equity"  certainly  is  pr<^>erty  in  a  popular 
■ense.  It  has  value;  It  may  be  sold;  It  may 
be  Incumbered;  it  may  be  made  the  basis 
of  extending  credit  See^  also,  as  to  the 
extensive  arollcatlon  of  the  language  of  tbe 


act.  Hopper  v.  Edwards,  88  N.  J.  Law,  471, 
96  Atl.  667. 

Some  stress  Is  laid  below  by  the  respondent 
on  the  rights  of  the  pledgee,  and  their  sup- 
posed infringement  by  the  comptroller,  but 
they  are  not  here  lnv<rfvedL  No  pretense  is 
nuide  by  the  state  that  its  lien  on  the  stock  is 
other  than  Inferior  to  that  of  tbe  pledgee. 
The  latter  Is  not  before  the  court,  and  there 
appears  in  the  case  nothing  of  interference 
with  bis  rights.  Certain  practical  difficulties 
In  the  collection  of  such  a  tax  as  this  may  be 
compassed  within  the  imagination,  bat  the 
present  case  is  free  therefrom. 

It  is  enough  for  the  decision  of  this  case 
that  the  comptroller's  consent  to  transfer  was 
requested  by  the  executor  of  the  decedoit's 
vrill ;  that  he  refused  unless  payment  of  the 
tax  was  forthcoming;  that  the  tax  was 
paid,  the  waivers  issued,  and  the  stock  trans- 
ferred. The  only  question  before  the  court 
is.  Had  the  Legislature  the  power  to  author- 
ize the  assessment  and  did  it  do  It? 

In  the  opinion  of  the  Supreme  CMrt  (but 
whether  it  was  the  basis  of  the  decision  we 
cannot  tell)  mention  is  made  of  the  possibili- 
ty that  the  "equity  of  redemption"  be  ren- 
dered valueless  by  a  resort  to  the  security 
after  the  pledgor's  death.  This  possibility 
would,  with  equal  force,  support  the  proposi- 
tion that  no  tax  should  be  levied  on  an  equity 
in  real  estate,  since  that  might  be  foreclosed. 
This  might  be  due  to  the  owner's  neglect  to 
pay  tbe  Incumbrance,  or  for  other  reasons. 
Likewise  a  bouse  might  be  destroyed  by  wind 
or  flood ;  a  chattel  burnt  or  lost ;  the  assets 
of  the  estate  might  be  embezzled;  a  debt 
become  uncollectable  by  Incompetent  manage- 
ment; a  security  valueless  by  fiuctuatlons 
in  the  market  or  the  receipt  of  "news  from 
abroad."  The  tax  is  on  the  succession,  which 
occurs  at  death;  and  is  then  due  and  pay- 
able. Section  1.  If  the  subject-matter  of  the 
succession  be  of  value  at  that  time,  and  the 
universal  or  particular  successors  choose  to 
accept  the  succession,  tbe  state  may  then 
levy,  as  of  tbe  situation  then  existing,  a 
premium  upon  the  privilege  so  to  succeed. 
What  becomes  of  the  thing  after  the  state  has 
admitted  the  successors  to  the  succession  Is 
not  of  its  concern.  And  so  hold  tbe  author- 
ities. See  Tilford  v.  Dickinson,  79  N.  J.  Law, 
302,  303,  75  AtL  574  (reversed  on  another 
point,  81  N.  J.  Law,  576,  79  Atl.  1119);  Mo- 
Curdy  v.  McCurdy,  197  Mass.  248,  83  N.  E. 
881,  16  L.  R.  A.  (N.  S.)  329,  14  Ann.  Cas.  859; 
In  re  Penfold's  Estate,  216  N.  T.  172,  110  N. 
E.  499. 

Tlie  argument  of  respondent  that  due 
prudence  and  caution  requires  that  assess- 
ment be  withheld  pending  realization  on 
the  pledge  is  self-destructive.  It  will  not  do 
to  say  that  the  state  should  take  into  com- 
putation the  loss  or  shrinkage.  If  any,  whldi 
has  taken  place  in  the  meautlma  It  would 
not  be  argued  that  if  there  be  an  Increase 
In  value,  a  tax  should  be  laid  on  this.  Of 
course  tbe  state  is  not  bound  to  stay  the 


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(X.J. 


exercise  of  the  taxing  power  at  tlie  pleasure 
of  the  pledgee,  and  chance  the  collection  of 
a  tax  on  his  judgment  and  honesty,  and  on 
the  Tariability  of  the  market's  demand  for 
the  thing  to  be  sold. 

In  the  case  at  bar  it  appears  that  certain 
of  the  New  Jersey  stocks  were  sold  by  the 
pledgee  shortly  after  Morse's  death,  at  a 
price  in  excess  of  the  appraisement.  Certain- 
ly this  did  not  render  valueless  the  "equity" 
In  these  stocks.  It  was  a  realization  of  their 
value.  While  the  proceeds  were  applied  In 
reduction  of  the  principal  of  the  debt,  this 
Increased  correspondingly  the  "equity"  in  the 
other  stocks.  It  is  as  if  the  proceeds  of  the 
Bethlehem  Steel  itreferred  wliicb  was  aaiA 
were  paid  to  the  respondent,  and  by  it  ap- 
plied to  the  payment  of  the  testator's  legal 
obligation.  The  validity  of  the  tax,  therefore. 
Is  not  affected  by  any  of  the  foregoing 
matters. 

Upon  the  whole,  oar  conclusUMi  Is  that 
the  interest  of  a  lunuesident  deceased  pledgor 
of  stock  of  a  New  Jersey  corporation  In  such 
stock  is  subject  to  the  transfer  tax  Imposed 
by  the  act  of  1909  (P.  U  p.  325;  C.  S.  p.  5301) 
as  amended  in  1914  (P.  L.  p.  267). 

The  Judgment  below  will  be  reversed,  with 
costs,  with  direction  for  the  entry  of  an  or- 
der below  affirming  the  assessment  and  tax. 

(87  N.  J.  Hq.  <75)        "^"""^ 

STANFORD  v.  STANFORD  et  al. 
(No.  36/102.) 

(Court  of  Chancery  of  New  Jersey.     June  6, 
1917.) 

1.  CoTTBTS  9=324— Jurisdiction— CoNRBsmo 
BT  Consent. 

Jurisdiction  of  the  subject-matter  of  a  suit 
In  equity  cannot  be  conferred  by  consent. 

[Ey.  Note. — For  other  cases,  see  Courts,  Cent. 
Vig.  it  70-78.] 

2.  COUBTS  «=>19  —  JUBISOICTION  —  Paktiks 
NONBESIDBNT. 

A  court  of  chancery  has  jurisdiction  of 
a  bill  for  an  injunction  to  restrain  the  taking 
of  a  note  into  another  state  and  its  use  in  a 
suit  at  law  in  such  other  state  on  such  note  on 
the  ground  of  fraud  and  for  its  cancellation, 
though  both  parties  are  nonresidents  of  the 
state;  the  note  being  impounded  in  this  state 
in  the  hands  of  a  Supreme  Court  Commissioner. 
rE5d.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  H  47-52.] 

8.  EQXraTT    4=939(1)— JXTBIBOIOTION  —  RVrEN- 
TION. 

Where  a  court  of  equity  acquires  Jurisdic- 
tion of  an  action  to  enjoin  Uie  taking  of  a  note 
to  another  state  for  use  as  evidence  in  another 
state  suit  on  the  note  impounded  in  this  state 
in  the  hands  of  a  Supreme  Court  Commissioner 
on  the  ground  of  fraud,  it  will  retain  jurisdic- 
tion and  determine  the  case  on  the  merita. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  H  104-109,  111,  114.] 

4.  Bnxs  AND  Notes  «=>525—E<juitt— Fraud 
— SmrFiciBKcr  of  Bvidencb. 
Where  the  circumstances  surrounding  a  note 
are  suspicious,  as  where  the  due  date  wag  chang- 
ed, interlineationB  were  made  long  after  the 
making  of  the  note,  and  the  payee  slept  on  her 
rights  for  25  years  till  iudorsers  were  dead,  the 
claim  should  not  be  sustained  except  on  clear- 


est proof  of  most  satisfactory  and  nnlmpeaeb- 
able  character. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  {§  1832-1839.] 

5.  Bills  and   Notes  «=>498  —  Burden   or 
Proof. 

In  an  action  to  restrain  taking  into  another 
state  a  note  impounded  in  this  state  in  the 
hands  of  a  Supreme  Court  Commissioner  and 
its  use  as  evidence  in  a  suit  in  such  other  state 
against  the  indorser  of  the  note,  the  defendant 
must  show  by  clear  and  convincing  proof  either 
a  legal  protest  and  notice  thereof  or  that  it  was 
waived  by  the  indorser,  since  burden  is  on  plain- 
tiff to  prove  these  facts  in  an  action  at  law 
and  equity  follows  the  law. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent.  Dig.  {§  1688-1694.] 

6.  Bills  and  Notes  «=>130— Days  or  Grace. 

A  note  due  two  years  from  August  1,  1S93, 
was  entitled  under  Laws  N.  Y.  c.  607,  to  days 
of  grace. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent.  Dig.  if  297-309.] 

7.  Alteration  of  Inbtbuiixnts  4=96(2) — ^In- 
terlineations. 

Where  it  appears  that  words  "service  of  no- 
tice and  protest  is  hereby  waived,"  were  inter- 
lined after  execution  of  note,  it  is  void  as 
against  the  prior  indorser  who  did  not  assent  to 
such  alteration,  as  it  is  a  material  alteration 
witliin  meaning  of  Negotiable  lustmments  Law 
(3  Comp.  St.  1910,  p.  3749,  i  124). 

[Ed.  Note. — For  other  cases,  see  Alteration  of 
Instruments,  Cent  Dig.  i{  21-27.] 

Bill  by  Helen  E.  Stanford  against  Annie 
F.  Cunningham  Stanford  to  restrain  taking 
of  note  to  another  state  and  Its  use  as  evi- 
dence In  a  suit  thereon  in  that  state  and  for 
cancellation  of  such  note  impounded  in  this 
state  In  the  hands  of  a  Supreme  Court  Com- 
missioner.    Decree  for  complainant. 

C!ortlandt  ft  Wayne  Parker,  of  Newark,  for 
complainant  I.  Faerber  Goldenbom,  of  Jer- 
sey City,  and  George  W.  Carr,  of  New  York 
City,  for  defendants. 


LEWIS,  V.  G.  The  bill  In  this  case  waa 
filed  for  cancellation  of  a  note  for  $6,500, 
impounded  In  this  state  in  the  "hands  of  a 
Supreme  Court  Commissioner,  and  to  enjoin 
its  being  taken  to  New  York  and  used  in  a 
suit  brought  thereon  by  Mrs.  Cunningham 
Stanford  against  Mra  Helen  K.  Stanford,  as 
residuary  legatee  of  her  husband,  Philip  W. 
Stanford.  March  1,  1913,  a  rule  to  show 
cause  with  temporary  stay  was  granted.  On 
further  hearing  upon  affidavits  by  both  par* 
ties.  Injunction  was  granted  October  6.  1913, 
but  with  provisions  so  as  to  permit  the  New 
Tork  suit  to  go  on  to  verdict  upon  Mrs.  Cun- 
ningham Stanford  giving  a  bond  for  $1,000 
that  she  will  not  proceed  in  the  caase,  after 
verdict,  without  permission  of  the  Court  of 
Chancery,  and  that  the  commissioner  might 
continue  to  bold  the  note  subject  to  be  pro- 
duced at  the  trial  of  the  New  Tork  suit. 
An  appeal  thereupon  was  taken  to  the  Court 
of  Errors  and  Appeals  against  so  much  of  the 
order  as  permits  the  suit  In  New  Tork  to  pro- 


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STANFORD  ▼.  STANFORD 


389 


ceed,  and  permits  the  note  to  be  taken  to  New 
Tork  for  nse  In  the  suit  there. 

[1]  Before  the  hearing  of  the  appeal  conn- 
sel  on  both  sides  got  together  and  voluntarily 
assented  to  the  adjudication  of  the  merits  in 
this  tribunal,  and  the  cause  has  been  tried 
before  me.  It  was  not  an  attempt  by  con- 
sent to  confer  Jurisdiction  upon  the  court, 
for  it  is  well  settled  that  Jurisdiction  of  the 
sabject-matter  of  a  suit  in  equity  cannot  be 
conferred  by  consent  Hudson  County  t. 
Central  R.  R.  of  N.  J.,  68  N.  J.  Eq.  500,  59 
Atl.  303,  and  other  cases.  The  situation  la 
somewhat  similar  to  that  presented  by  the 
case  of  Varrick  r.  Hitt,  66  N.  J.  Eq.  442, 
57  Atl.  406. 

The  facts,  briefly  stated,  are :  That  a  note 
for  $6,500  is  alleged  to  have  been  given  by 
Colonel  Asa  P.  Stanford,  a  brother  of  Leland 
Stanford,  the  founder  of  a  great  university 
of  that  name.  The  Colonel  Is  alleged  to  have 
obtained  the  signatures  of  his  son  Philip  and 
bis  daughter  Mary  as  Indorsers  on  the  note. 
The  note,  with  Its  indorsements,  reads  as 
follows : 
'•$8500  New  Tork,  Aug.  1,  1893. 

"Two  years  after  date  I  promise  to  pay  to  the 
order  of  Mrs.  A.  F.  Cunningham,  six  thousand 
five  hundred  dollars  ($6500)  at  Laidlaw  &  Co., 
14  Wall  street.    Value  received. 

"Due.  .     No.  . 

"A.  P.  Stanford." 

Indorsed: 

"Service  and  notice  of  protest  is  hereby 
waived.  Mary  E.  Stanford. 

"Philip  Stanford." 

The  complainant  alleges  that  the  note  Is 
false  and  fraudulent  and  tainted  with  frand 
and  forgery.  In  that  the  signature  of  Philip 
Stanford  was  not  genuine,  but  was  forged; 
also  that  the  note  has  been  changed  from  a 
one-year  note  to  two  years;  also  that  the 
words  "Service  and  notice  of  protest  Is  hereby 
waived"  were  placed  there  many  years  after 
the  Indorsements  on  the  back  of  the  note  were 
made,  and  that  a  conspiracy  existed  between 
Colonel  Asa  P.  Stanford  and  the  lady  who 
afterwards  became  his  wife,  the  now  defend- 
ant, to  mulct  the  estate  of  Philip. 

Philip  was  educated  at  Harvard,  and  at  the 
time  he  indorsed  the  note  he  was  living  at 
Spokane,  Wash.,  afterwards  removing  to  Cal- 
tfomia,  and  then  to  Montclalr,  Essex  county, 
N.  J.,  where  he  died  on  June  1,  1898,  having 
executed  bis  last  will  and  testament  wherein 
he  bequeathed  everything  to  his  wife  and  ap- 
pointed her  sole  executrix.  By  the  last  will 
and  testament  of  ILieland  Stanford  be  left 
$100,000  to  each  of  his  nephews  and  nieces, 
and  also  the  same  amount  to  his  brother 
Colonel  Asa  P.  Stanford.  The  complainant 
bad  the  will  of  her  husband  duly  probated, 
and  thereupon  Colonel  Stanford  engaged 
counsel  and  took  an  appeal  to  the  orphans' 
court  of  Essex  county,  which  was  decided 
against  him.  An  appeal  was  then  taken  to 
the  Prerogative  Court,  which  was  discontinu- 
ed. Colonel  Stanford  and  the  defendant  In 
this  suit  were  both  traders  In  stocks.   He  died 


practically  penniless.  His  son  Philip  seems 
to  have  been  fond  of  him,  and  all  seems  to 
have  gone  along  pleasantly  untU  the  death 
of  Philip.  The  fact  that  Philip  did  not  pro- 
vide for  his  aged  father's  support  by  his  will, 
but,  on  the  contrary,  left  everything  to  the 
complainant,  Philip's  wife,  seems  to  have 
aroused  the  indignation  of  the  old  gentleman 
who  was  at  that  time  about  76  years  of  age. 
Colonel  Stanford  and  the  defendant  were 
friends  for  a  great  many  years.  In  1902  he 
married  the  defendant,  and  died  In  1903. 

The  note  was  made  In  New  York  and  in- 
dorsed in  the  states  of  Connecticut  and  Wash- 
ington. The  note  was  delivered  and  is  pay- 
able in  New  Tork.  The  maker,  when  the  note 
was  made  and  continuously  till  his  death,  re- 
sided in  New  Tork.  So  far  as  Colonel  Stan- 
ford, the  maker  of  the  note,  is  concerned,  the 
note  is  barred  by  the  statute  of  liniltatlons. 
As  to  I^llp,  iHXwever,  the  statute  of  limita- 
tions of  New  Tork  did  not  apply,  as  he  was 
out  of  that  state.  In  the  month  of  November, 
1900,  an  action  was  commenced  in  the  Su- 
preme Court  of  this  state  by  the  present  de- 
fendant against  the  present  complainant  as 
executrix  on  the  above  note,  which  note  was 
impounded  by  order  of  the  court  in  the  hands 
of  a  Supreme  Court  Commissioner  who  died, 
and  it  was  afterwards  placed  in  the  hands 
of  another  commissioner  by  order  of  the 
court,  and  it  has  been  held  by  him  ever  since. 
A  judgment  of  non  pros,  was  entered  in  that 
action.  A  second  suit  was  then  brought  In 
the  same  court  between  the  same  parties  as 
to  the  same  subject-matter,  except  that  the 
complainant  was  sued  as  devisee  of  her  hus- 
band, which  action  the  plaintiff  discontinued 
on  the  30th  of  December,  1901. 

Some  time  in  December,  1911,  the  present 
defMidant  commenced  suit  against  the  pres- 
ent o(»nplalnant  in  the  New  York  Supreme 
Court  for  the  county  of  New  York  upon  the 
same  note,  alleging  that  the  present  com- 
plainant was  the  sole  legatee  of  Plillip  W. 
Stanford,  and  sole  executrix,  and  received 
his  property  and  assets,  and  that  no  will  ei- 
ther of  Asa  P.  Stanford  or  Philip  W.  Stan- 
ford had  been  proved  in  New  Tork.  After- 
wards, the  present  complainant  pleaded  to 
that  suit,  and  notice  was  given  to  her  by  the 
present  defendant  that  an  application  would 
be  made  to  the  Honorable  Francis  Swayze, 
Justice  Qf  the  Supreme  Court  of  this  state, 
for  an  order  that  said  note  should  be  turned 
over  and  delivered  by  Charles  D.  Thompson, 
the  Supreme  Court  Commissioner  who  held  it 
under  the  order  of  the  court  Thereupon 
the  present  suit  was  brought  In  this  court 
for  an  injunction  to  stay  the  suit  at  law  and 
for  the  cancellation  of  the  note;  and  it  is 
now  submitted  to  the  court  under  stipula- 
tions and  order  whereby  this  court  is  to  try 
the  whole  case,  in  order  to  avoid  the  trial  of 
the  case  in  New  Tork. 

[2]  In  the  brief  of  the  defendants'  counsel 
he  argues  that  the  Court  of  Chancery  of  New 


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101  ATIiANTIO  RBPOUTBR 


(N.J. 


Jersey  has  no  Jurisdiction,  because  both^ 
parties  are  nonresidents.  There  is  no  basis 
for  such  a  contention,  it  being  the  settled 
law  that  where  both  parties  are  nonresidents 
it  will  not  prevent  them  from  bringing  suit 
or  being  sued  in  cases  of  this  diaracter. 

[3]  It  is  also  the  settled  law  that  courts 
of  equity  have  Jurisdiction  over  all  questions 
where  fraud  is  involved,  but,  as  a  matter  of 
practice,  where  there  is  a  complete  and  ade- 
quate remedy  at  law  courts  of  equity  will 
usually  not  assume  Jurisdiction;  but  where 
the  court  lias  already  assumed  Jurisdiction, 
as  in  a  mere  matter  of  discovery,  it  will  con- 
tinue on  and  deal  equity  between  the  parties 
on  the  whole  case.  In  regard  to  the  comity 
existing  between  the  states,  I  thinlc  that  is 
entirely  settled  by  the  stipulation  of  counsel. 

[4]  To  my  mind,  this  is  an  unconscionable 
claim  and  shonld  not  be  sustained  except 
upon  the  clearest  proof  of  the  most  satisfac- 
tory and  unimpeachable  character.  It  is 
well  settled  that  a  court  of  equity  will  not 
lend  its  aid  to  enforce  an  unconscionable 
claim.  Brie  B.  R.  t.  Delaware  R.  R.  Co.,  21 
N.  J.  Eq.  283;  Suffem  v.  Butler,  19  N.  J.  Eq. 
202,  and  other  cases.  All  the  circumstances 
surrounding  it  are  suspicious.  The  chang- 
ing of  the  date  of  the  note  from  one  to  two 
years,  which  is  apparent  on  the  face  of  it, 
and  the  fact  that  unless  such  change  had 
been  made  the  first  suit  that  was  brought 
against  the  complainant  as  executrix,  at  the 
time  the  note  was  impounded,  would  have 
been  barred  by  the  statute  of  limitations;  the 
very  obvious  insertion  of  the  words  "Service 
and  notice  of  protest  is  hereby  waived" 
above  the  indorsements  of  Mary  and  Philip 
on  the  note,  which  I  am  satisfied  were  made 
many  years  after  the  malting  of  the  note, 
such  Insertion  being  made  with  the  privity 
and  consent  of  the  defendant;  the  sleeping 
on  the  rights  for  nearly  a  quarter  of  a  cen- 
tury ;  the  commencement  of  two  suits  in  New 
Jersey  and  allowing  them  to  be  dismissed 
for  lack  of  prosecution,  and  notliing  further 
being  done  until  the  commencement  of  the 
third  suit  in  New  Xork,  where  they  sought  to 
take  advantage  of  a  technical  situation  under 
the  statute  of  limitations  because  of  the  ab- 
sence from  the  state  of  the  defendant;  the 
death  of  Philip  and  Mary,  who  are  unable  to 
testify;  and  the  very  apparent  attempt  to 
mulct  the  estate  of  PhUlp — are  all  circum- 
stances against  the  equities  of  the  bolder  of 
the  alleged  note. 

[5]  I  think  that  the  defendant  has  not  sus- 
tained the  burden  which  the  law  places  upon 
her — that  she  has  failed  to  show  a  legal  pro- 
test and  notice  thereof;  or  if  that  was  un- 
necessary under  the  waiver,  then  she  has 
failed  to  show  that  the  waiver  was  part  of 
the  contract  of  the  indorscrs;  and  in  the 
absence  of  clear  and  convincing  proof  on 
either  or  both  of  those  questions  she  could 
not  recover  in  an  action  in  a  court  of  law. 


and  as  equity  should  follow  the  law.  In  this 
respect  she  cannot  recover  here. 

[6]  The  protest  of  the  note  shows  that 
words  were  interlined  in  different  ink,  and 
the  protest  was  made  on  the  due  day  without 
days  of  grace,  while  it  should  have  been  pro- 
tested on  the  last  day  of  grac&  Days  of 
grace  were  abolished  by  the  laws  of  New 
York  in  1894,  chapter  607,  taking  efTect  Jan- 
uary 1,  1895,  as  to  all  notes  made  after  the 
approval  of  the  act  of  May  9,  1891.  Conse- 
quently, If  this  note  were  for  two  years  from 
August  1,  1893,  it  was  oitltled  to  days  of 
grace. 

[7]  According  to  the  Negotiable  Instru- 
ments Law  (3  Gomp.  St  1910,  p.  3749,  f  124): 

"Where  a  negotiable  instmment  is  materially 
altered  without  the  assent  of  all  parties  liable 
thereon,  it  is  avoided,  except  as  against  a  party 
who  has  himself  made,  anthorized  or  assented  to 
the  alteration  and  sabBequent  indorsers.  But 
when  an  instrument  has  been  materially  altered 
and  is  in  the  hands  of  a  holder  in  due  course, 
not  a  party  to  the  alteration,  he  may  enforce 
payment  thereof  according  to  its  original  tenor." 

The  prayer  of  the  complataanf s  bill  for 
the  relief  sought  will  be  granted  In  accord- 
ance with  these  views. 


JBNKINSON  et  aL  v.  PARMLT. 
C^ty  Comptroller,  et  aL 

(Supreme  Court  of  New  Jersey.    April  6,  1917.) 

MuNiciPAii  Corporations  «=s»512(3)— Public 
Improvkmknts— Assessments— Judgment  or 
Commissioners. 
Whether  lands  assessed  for  benefits  result- 
ing from  extension  of  street,  and  sitaated  3.200 
feet    from    place    of   extension,   were    specially 
benefited,  and  to  what  extent,  is  a  qnestion  of 
fact  which  must  be  detenuined  by  judgment  of 
commissioners,  and  that  judgment  wiU  not  be 
disturbed,   unless   the   improvement  could   not, 
in  the  opinion  of  reasonable  men,  be  justly  re- 
garded as  a  special  benefit  to  the  owners  of 
land  in  the  area  fixed  by  the  commissioners. 

[Bid.  Note.— For  other  cases,  see  Monidpal 
Corporations,  Cent.  Dig.  {  1187.] 

Certiorari  to  Circuit  Court,  Essex  County. 

Certiorari  by  Richard  C.  Jenklnson  and 
others  against  Tyler  Parmly,  Comptroller  of 
the  City  of  Newark,  and  others,  to  review  an 
assessment.    Affirmed. 

Argued  November  term,  1916,  befbre 
SWAYZB,   MINTUBN,   and   KALISCH,  JJ. 

Coult  &  Smith  and  Stein,  Stein  4  Hax»- 
noch,  oil  of  Newark,  for  prosecutors.  Harry 
Kaliscb,  City  Atty.,  of  Newark,  for  respond- 
ents. 

PER  CURIAM.  Property  owners  were  as- 
sessed for  benefits  resulting  from  the  ex- 
tension of  Branford  place  to  Highstreet,  pub- 
lic streets  in  the  city  of  Newark.  Upon  the 
coming  in  of  the  report  of  the  commissioners!  • 
written  objections  were  filed  by  landowners 
to  assessments  agoinst  their  lands  contained 
in  the  report    The  report  was  confirmed. 

The  chief  objection  made  against  the  con- 


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391 


flrmatlon  of  the  report  was  tbat  tbe  lands 
assessed  derived  no  special  benefit  beyond 
that  of  the  general  public.  There  were  nn- 
merous  other  objections  which  Involved  mat- 
ters requiring  careful  consideration,  nil  of 
wbldi  have  been  thoroughly  and  ably  discuss- 
ed and  disposed  of  tn  an  elaborate  opinion  by 
Judge  Adams,  sitting  In  the  Essex  circuit, 
In  confirming  the  assessments,  which  opinion 
expresses  the  views  of  this  court 

The  main  contention  of  counsel  for  the 
prosecutors  to  support  their  aUegati<Ni  of  il- 
legullty  of  the  assessments  under  review  is 
that  the  commissioners  arbitrarily  fixed  an 
area  of  benefits  In  that  the  report  of  the 
commissioners  shows  that  the  lands  of  the 
objectors  were  without  the  zone  in  which  it 
could  be  fairly  said  that  the  lands  assessed 
are  specially  benefited.  Whether  or  not  the 
lands  assessed  were  so  benefited  and  to  what 
extent  dep^ided  upon  the  Judgment  of  the 
commissioners.  This  Inquiry  Involved  In  its 
determination  a  mixed  question  of  law  and 
fact,  nie  general  legal  principle  to  be  ex- 
tracted from  Newark  v.  Hatt,  79  N.  J.  Law, 
6«,  77  Atl.  47,  30  li.  B.  A.  (N.  S.)  637,  is 
that  only  lands  which  are  spedally  affected 
by  the  opening  or  closing  of  a  street  are  to  be 
considered.  Bnt  whether  lands  are  more  or 
less  affected  or  specially  benefited  must  al- 
ways remain  a  question  of  fact  the  solution 
of  which  rests  with  the  commissioners.  It 
is  the  Judgment  of  the  commissioners  which 
must  determine,  under  all  the  circumstances 
of  the  case,  whether  the  lands  are  specially 
benefited  or  not. 

We  think  the  reasoning  In  Hart  et  al.  v. 
aty  of  Omaha  et  al.,  74  Neb.  836,  105  N.  W. 
546,  is  peculiarly  applicable  to  the  matter  be- 
fore ns.    In  that  case  the  court  says: 

"It  is  charged  that  the  assessment  Is  unjust 
and  oppressive.  The  charge  appears  to  be  bas- 
ed soleif  on  the  fact  that  the  appellant's  prop- 
erty, beu;  about  three-quarters  of  a  mile  from 
tlie  boulevard,  cannot  be  specially  beiie6ted 
tliereby;  but  whether  property  is  thus  bene- 
fited Is  a  question  of  fact,  which  must  depend 
on  the  facts  and  circumstances  in  each  case. 
On  such  questions  the  distance  of  the  property 
from  the  boulevard  would  undoubtedly  have  an 
important  bearing.  But  this  court  is  now  ask- 
ed to  say,  as  a  matter  of  law,  that  because  the 
property  is  three-quarters  of  a  mile  from  the 
bonlevard  it  received  no  special  benefit  there- 
from, and  inferentially  that  the  assessment 
thereof  for  the  purpose  stated  amounts  to  fraud, 
cross  injustice,  or  mistake.  This  the  court, 
acting  within  its  constitutional  bounds.  Is  un- 
aUe  to  do.  We  do  not  mean  to  be  understood 
to  gay  that  the  distance  might  not  be  so  great 
in  a  given  case  as  to  enable  the  court  to  say 
•8  a  matter  of  law  that  the  property  woa  not 
specially  benefited.  That  question  stands  open. 
What  we  do  hold  is  that  this  court  cannot  say, 
In  view  of  aU  the  facts  and  circumstances,  tbat 
beeanso  the  property  is  three-quarters  of  a  mile 
from  the  boulevard,  it  derives  no  special  benefit 
from  such  thoroughfare." 

And  so  in  the  present  case  we  cannot  say. 
In  view)  of  all  the  facts  and  drcumstances, 
that  because  some  of  the  lands  assessed  are 
8,200  feet  from  the  Branford  plade  extension 


into  High  street,  tbat  sudi  lands  do  not  de- 
rive any  special  benefit 

We  cannot  say  as  a  matter  of  law  that  a 
proper  area  of  assessment  would  be  upon  the 
blocks  of  land  between  the  opened  street  and 
the  next  parallel  streets.  Nor  can  we  fix  as 
a  matter  of  law  the  area  of  assessments  by 
metes  and  bounds,  by  declaring  where  such 
area  shall  begin  and  where  it  shall  end. 
In  other  words,  we  cannot  substitute  our 
Judgment  for  that  of  the  commissioners,  un- 
less it  clearly  appears  that  the  Judgment  of 
the  commissioners  was  without  any  basis 
whatever.  As  was  pointedly  remarked  by 
Dixon,  J.,  in  Jelllff  v.  Newark,  48  N.  J.  Law, 
on  page  109,  2  Atl.  on  page  632: 

"The  area  of  special  benefit  is  so  largely  a 
matter  of  opinion  that  the  judgment  of  the 
commissioners  •  •  •  must  stand,  unless 
very  convincing  evidence  be  adduced  against  it" 

We  are  not  prepared  to  say  from  the  un- 
disputed facts  alone  namely,  the  widening 
and  extension  of  Branford  place  to  High 
street,  thus  linking  High  street  and  inter- 
secting streets  with  Broad  street  In  the  very 
center  of  the  city,  might  not,  in  the  opinion 
of  reasonable  men,  be  Justly  regarded  as  a 
special  benefit  to  the  owners  of  land  in  the 
area  fixed  by  the  commissioners. 

For  the  reasons  given,  the  Judgment  of  the 
E^ex  circuit  court,  confirming  the  assess- 
ments under  review,  will  be  affirmed,  with 
costs. 


FIEDLER  et  al.  v.  PARMLT. 
City  Comptroller,  et  al. 

(Supreme  Court  of  New  Jersey.    April  6,  1917.) 

Certiorari  to  Circuit  Court  Essex  County. 

Certiorari  by  William  H.  F.  Fiedler  and  oth- 
ers against  Tyler  Parmly,  Comptroller  of  the 
City  of  Newark  and  others,  to  review  an  as- 
sessment.   Affirmed. 

Argued  February  term,  1917,  before  SWATZE, 
MINTURN,  and  KALISCH,  JJ. 

Coult  &  Smith  and  Stein,  Stein  &  Hannoch, 
all  of  Newark,  for  prosecutors.  Harry  Kalisch, 
City  Atty.,  oi  Newark,  for  defendants. 

PER  CURIAM.  The  same  questions  which 
were  presented  in  Jenkinson  et  al.  v.  Parmly, 
101  AtL  300,  decided  this  term,  are  raised  in 
the  present  case.  For  the  reasons  given  by 
Judge  Adams  in  his  opinion  confirming  the  as- 
sessments in  the  Essex  circuit  court  and  the 
views  expressed  in  the  opinion  filed,  in  Jenkin- 
son V.  Parmly,  supra,  the  judgment  of  the  Essex 
circuit  court  confirming  the  assessments  under 
review,  wUI  be  affirmed,  with  costs. 

<M  N.  J.  lAw,  am 

NEW  YORK  TELEPHONE  CO.  v.  MAYOR 

AND  COMMON  COUNCIL  OF  OITT  OF 

NEWARK. 

(Supreme  Court  of  New  Jersey.    June  6,  1917.) 

MONIOIFAL    COBPOBAITONS    «S>422  —   PUBUO 
IMPBOVEUENTS  —  ASSKSSUENT  —  TBLEPHONB 

Exchange. 
A  telephone  exchange,  not  being  in  a  legal 
i  sense  permanently  devoted  to  a  public  use,  may 


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bo  _  aasessed    for   local    ImproTementB    on    the 
basis  of  the  enhancement  of  its  market  value. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1028.] 

Certiorari  by  the  New  Tork  Telephone 
Company  against  the  Mayor  and  Common 
Council  of  the  City  of  Newark,  to  review  an 
assessment.    Affirmed. 

Argued  February  term,  1917,  before 
SWATZB,  MINTURN,  and  KALISCH,  JJ. 

Edward  A.  &  William  T.  Day,  of  Newark 
(Charles  T.  Russell,  of  New  York  City,  (m  the 
brief),  for  prosecutor.  Harry  Kallscb,  of 
Newark,  for  the  City. 

SWATZE,  J.  This  assessment  is  for  the 
same  Improvement  Involved  in  Jenklnson 
V.  Parmly,  Comptroller,  and  Fiedler  v. 
Parmly,  Comptroller.  All  the  points  but 
one  are '  disposed  of  by  the  opinions  In 
those  cases.  The  additional  point  made 
In  this  case  is  that  the  assessment  must 
be  limited  to  the  benefit  conferred  on 
the  telephone  company  for  its  use  of  the 
property,  and  cannot  be  measured  by  the 
increase  In  the  market  value  of  the  land ; 
and.  Inasmuch  as  the  property  is  said  to  be 
permanently  devoted  to  a  public  use  of  such 
a  character  that  the  present  owner  Is  not 
benefited  by  improved  means  of  access,  It 
is  argued  that  the  assessment  should  be 
nominal,  or  should  at  most  be  less  than  it 
would  be  If  the  property  were  ordinary  busi- 
ness property.  To  sustain  this  position  the 
prosecutor  relies  on  State,  Morris  &  Essex 
R.  R.  V.  Jersey  City,  36  N.  J.  Law,  56 ;  Ceme- 
tery Co.  V.  Newark,  50  N.  J.  taw,  66,  11  Atl. 
147;  Erie  R.  R.  Co.  v.  Paterson,  72  N.  J. 
Law,  83,  59  Atl.  1031.  The  last  two  cases 
do  not  help  the  prosecutor.  In  the  Cemetery 
Company  Case  the  portion  of  the  land  to 
which  the  Cemetery  Company  had  title  was 
held  liable  to  assessment  In  the  Erie  R.  R. 
Co.  Case,  It  was  held  that  there  might  be  an 
assessment  for  benefits  to  the  use  of  the 
property,  although  there  might  be  no  assess- 
ment under  the  circumstances  of  that  case 
fof  enchancement  of  market  value.  In  the 
Morris  &  Essex  R.  R.  Case,  It  was  indeed 
held  that  the  enchancement  of  the  present 
market  value  was  not  the  proiwr  basis  of 
assessment,  but  that  result  was  Justified  by 
the  facts  peculiar  to  the  case.  The  subject 
has  been  recently  reviewed  by  the  Court  of 
Elrrors  and  Appeals,  and  the  rule  and  the 
reasons  on  which  It  rests  have  been  ad- 
mirably stated  by  Mr.  Justice  Garrison. 
New  York  Bay  R.  R,  Ca  v.  Newark,  82  N. 
J.  Law,  581,  83  Atl.  962.  The  reason  of  the 
rule.  In  Morris  &  Essex  Railroad  Co.  v.  Jer- 
sey City,  he  says,  is  "that  land  acquired  un- 
der a  legislative  sanction  that  Implies  its 
permanent  devotion  to  a  public  use  can- 
not, without  a  violation  of  such  public 
use,  have  a  market  for  any  other  pur- 
pose,    and    hence,    as    such    a    violation 


will  not  be  presumed,  muA  land  has,  In 
legal  contemplation,  no  market  value  to  be 
enhanced."  The  distinction  between  such  a 
case  and  the  present  is  that  here  there  is 
nothing  that  In  a  legal  sense  Implies  the  per- 
manent devotion  of  the  telephone  company's 
property  to  a  public  use.  It  may  be  that  in 
fact  it  Is  always  likely  to  remain  the  best 
site  In  Newark  for  a  telephone  exchange,  and 
that  the  company  Is  never  likely  to  move ; 
It  may  be  that  the  Investment  is  so  large 
that  the  loss  due  to  a  removal  would  be  pro- 
hibitive ;  it  may  be  that  it  is  fitted  up  for  the 
q>ecial  business  of  the  company.  All  these 
considerations  would  probably  be  applicable 
to  any  large  business,  to  a  bank,  an  Insur- 
ance company  or  ofllce  building,  a  hotel,  a 
factory,  or  a  department  store.  But  there  is 
nothing  to  show  that  the  title  to  the  property 
is  Ukely  to  be  afCected  by  an  abandonment  of 
the  present  use,  nor  is  the  property  so  changed 
In  character  that  It  cannot  readily  be  adapted 
to  other  business  purposes.  Such  a  change 
Is  not  unlsnown  In  the  case  of  the  telephone 
company  In  Newark.  We  see  nothing  to  dis- 
tinguish the  case  from  that  of  land  used  for 
the  other  kinds  of  business  buildings  Just 
mentioned. 
The  assessment  Is  affirmed,  with  costs. 


(90  N.  J.  Law,  Sg6) 

0.  J.  GTJDE  CO.,  NEW  TORE,  v.  NEWARK 

SIGNCO.  etal.    (No.  100.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
May  24,  1917.) 

1.  conspibaot    ®=»19  — evidkhcb— pbkvions 
Suit  against  Defendants. 

In  an  action  by  a  sign  advertising  company 
agaiuBt  other  such  compHiiies  for  maliciously 
conspiring  to  mutilate  and  injure  plaintiff's 
signs,  evidence  that  three  of  the  defendants  more 
than  seven  years  before  the  acts  complained  of 
bad  been  sued  by  another  plaintiff  for  like  acts 
was  improperly  received,  since  it  confused  the 
issues  and  prejudiced  defendants. 

[Ed.  Note.— For  other  cases,  see  Cmispiracy, 
Cent  Dig.  i!  25,  26.] 

2.  CONSPIKAOT     ®=»19— EVIDENCS— ImMATEBI- 

ALrrT. 
Testimony  that  the  prior  suit  was  settled,  in- 
troduced to  substantiate  the  charges  in  the  pre- 
vious suit  was  improperly  admitted. 

[Ed.  Note. — For  other  cases,  see  Conspiracy, 
Cent  Dig.  §S  25,  26.] 

3.  Tbial   <8=3252(3)  —  Instruotiow— IrbtbOc- 

TION     TX>     CONSIDEB    EVlDElfCE    IIIPROPBRI.Y 

Admitted. 
The  trial  judge  improperly  charged  that  the 
jury  should  consider  the  earlier  suit  and  its  set- 
tlement as  showing  that  some  of  the  defendants 
had  knowledge  that  similar  charges  had  previ- 
ously been  made. 

[Ed.  Note.— For  other  cases,  see  Trial,  (}ent 
Dig.  §  598.] 

Black,  White,  Eeppeahdmer,  Williams,  and 
Gardner,  JJ.,  dissenting. 

Appeal  from  Supreme  Court 

Action  by  the  O.  J.  Oude  (}ompany.  New 
York,  a  corporation,  against  the  Newark  Sign 
Ompany,  a  corporation,  and  others.    There 


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O.  J.  GUDE  CO.  V.  NEWARK  SIGN  CO. 


393 


was  verdict  for  plaintiff,  from  wblcb  a  rale 
to  show  cause  was  allowed,  with  reserra- 
tion  of  exceptions.  The  rule  was  dlacbarged, 
and  defendants  appeal.  Reversed,  and  venire 
de  novo  awarded. 

Kallsch  &  Kalisch,  of  Newark,  for  appel- 
lants. Lum,  Tamblyn  A  C!olyer,  of  Newark, 
for  appellee. 

PER  CURIAM.  This  was  an  action  in  the 
Snpreme  Ck)urt.  The  complaint  alleges  that 
the  plaintiff  has  been  and  is  in  the  sign  ad- 
vertising business  in  general,  that  the  de- 
fendant corporations  were  engaged  in  the 
same  business,  and  were  and  are  its  competi> 
tors  and  rivals  throughout  the  city  of  Newark 
and  the  surrounding  territory;  that  Kelly 
and  Kavney  were  ofiBcers,  directors,  and  em- 
ployes of  each  of  the  defendant  companies, 
and  were  actively  engaged  in  the  conduct, 
management,  and  promotion  of  the  business 
of  each,  and  of  their  rivalry  and  competition 
with  the  plaintiff ;  that  they,  with  Pratt  and 
CuUen,  malldonsly  intending  to  harass,  an- 
noy, and  embarrass  the  plaintiff  in  the  car- 
rying on  of  its  business,  damaged  and  de- 
stroyed Its  signs  and  property,  and  caused 
dissatisfaction  among  its  customers;  and  to 
injure  and  drive  it  out  of  business,  etc.,  ma- 
liciously conspired,  combined,  and  agreed  to 
damage  and  destroy  its  signs  and  property, 
and  to  caoae  dissatisfaction  among  its  cus- 
tomers, and  in  pursuance  of  this  design  the 
defendants  chopped  down,  sawed  off,  burned 
and  otherwise  mutilated  and  injured  the 
signs  of  the  plaintiff,  to  its  damage.  At  the 
trial  In  the  Essex  circuit  the  Jury  rendered 
a  verdict  in  favor  of  the  plaintiff  against  tiie 
defendants  (except  Cullen,  as  to  whom  the 
plainUff  took  a  nonsuit).  From  that  verdict 
a  mle  to  show  cause  was  allowed,  vrlth 
reservation  of  exceptions.  The  rule  was  dis- 
charged, and  the  case  is  here  on  appeal  on 
the  reserved  exceptions. 

There  were  many  grounds  of  appeal  relied 
on  by  tlie  appellants,  but  for  the  purpose  of 
disposing  of  the  matter  before  us  only  those 
grounds  need  be  considered  which  have  refer- 
ence to  certain  transactions  and  a  certain 
controversy  between  the  New  Jersey  Sign 
Advertising  Company  (which  is  not  a  party 
to  this  suit)  and  three  of  the  defendants  in 
this  suit,  namely  Samuel  Pratt,  Newark  Sign 
Company,  and  Newark  Bill  Poster  Company, 
evidence  of  which  transactions  and  contro- 
versy the  conrt  received  in  evidence  and  re- 
ferred to  in  his  charge  to  the  Jury,  over  the 
objection  of  the  defendants. 

[1]  In  offering  this  evidence,  the  plaintiff 
sought  to  show  that  the  above-mentioned 
three  defendants,  in  an  earlier  suit  brought 
against  them  by  the  New  Jersey  Sign  Ad- 
vertising Company  In  January,  1913,  were 
charged  with  the  commission  of  acts  Blmllar 


to  those  charged  against  them  In  the  present 
suit;  the  complaint  In  the  earlier  suit  hav- 
ing alleged  that  the  acts  were  committed  in 
pursuance  of  an  unlawful  conspiracy,  com- 
bination, and  agreement  entered  into  by  the 
three  defendants  above  mentioned,  and  that 
the  acts  were  committed  since  January  20. 
1907.  The  record  of  that  suit  was  offered 
and  received  in  evidence.    This  was  error. 

The  record  tn  the  suit  Just  mentioned 
throws  no  light  upon  the  present  controversy. 
It  was  a  suit  based  upon  an  alleged  conspira- 
cy entered  Into  in  1907,  which  was  more 
than  seven  years  before  the  acts  complained 
of  in  the  snit  at  bar.  The  plaintiff  in  that 
suit  was  the  New  Jersey  Sign  Advertising 
Company,  and  the  plaintiff  in  the  case  at 
bar  is  O.  J.  Oude  (Company.  The  plaintiffs 
were  not  the  same  In  each  case.  It  further 
appears,  upon  an  examination  of  the  record 
in  the  former  case,  that  the  answer  filed  by 
the  defendants  denied  the  charges  in  the 
complaint,  and  that  the  snit  was  never  tried, 
but  was  discontinued.  It  cannot  be  said 
ttiat,  because  the  New  Jersey  Sign  Advertis- 
ing Company,  three  years  before  the  present 
suit  was  commenced,  accused  three  of  the 
present  defendants  of  conspiring  In  1907  to 
injure  it,  especially  without  any  verdict  In 
the  case  to  establish  the  tmth  of  the  accnsa- 
tions,  that  those  accusations  in  that  salt 
afford  any  light  in  determining  whether 
like  accusations  in  the  present  suit  are  true. 
It  was  highly  Improper  to  place  before  the 
Jury  the  record  of  the  other  case.  It  con- 
fused the  issues  in  this  case  and  prejudiced 
the  defendants.  It  also  affected  the  question 
of  punitive  damages.  The  defendants  could 
not  be  required  to  meet  the  issues  in  the  for- 
mer  suit. 

[2]  An  effort  was  made  to  sobstantlate  the 
charges  In  the  previous  suit  by  the  admission 
of  testimony  showing  that  that  suit  was  set- 
tled. This  was  error.  As  the  admission  of 
evidence  of  the  bringing  of  that  suit  was  er- 
ror, testimony  to  the  effect  that  it  was  set- 
tled was  equally  erroneons. 

[3}  The  trial  judge,  in  dealing  with  the 
matter  in  his  charge,  said  that  the  Jury 
should  consider  the  earlier  suit  and  the  set- 
tlement of  it  as  showing  that  some  of  the  de- 
fendants had  knowledge  that  similar  charg- 
es had  been  previously  made.  This  too  was 
error,  for,  as  ndther  the  bringing  nor  set- 
tlement of  that  snit  was  competent  evidence 
for  the  plaintiff,  it  follows  that  the  jury 
could  not  lawfully  give  consideration  to  that 
evidence  in  the  pending  suit. 

The  Judgment  under  review  will  be  re- 
versed, to  the  end  that  a  venire  de  novo  may 
be  awarded. 

BIiACE,  WHITE),  HEPPBNHffilMBB,  WII* 
LIAMS,  and  OARDNBR,  JJ.,  dissent. 


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101  ATLANTIC  RSPORTBB 


(N.J. 


(M  N.  J.  Law,  CO) 

SOHWABZROCK  v.   BOARD  OF  EDUCA- 
TION OF  BAYONNB. 

(Supreme  Court  of  New  Jersey.    July  9,  1917.) 

1.  Schools  and  Schooi.  Distbiots  «=>63(2) 
—  Bjbmovai.  or  Officer  —  Jdkisdiction  or 
Statk  Board  and  Offices. 

A  controversy  as  to  whether  a  local  board  o{ 
education  had  rightfully  removed  a  person  from 
a  position  ezistiiig  under  the  school  law  is  one 
of  which  the  commissioner  of  education  and  the 
state  board  of  education  has  jurisdiction  under 
School  Law  (4  Comp.  St.  1910,  p.  4727)  «  10,  in 
a  proceeding  which  can  only  result  in  affirming 
or  reversing  the  removal,  though  It  involves 
for  determination  thereof  findings  as  to  bis  guilt 
or  innocence  of  the  charge  of  attempted  bribery. 

2.  Schools  and  School  Districts  €=>47— 
Removal  of  Officer  —  Riohtfdlness  — 
Hearing  bt  Coumissioneb  of  Education. 

The  hearing  by  the  Commissioner  of  Edu- 
cation of  the  controversy  of  rightfulness  of  re- 
moval by  a  local  board  of  education  of  a  person 
from  a  position  under  the  school  law  is  a  new 
one,  and  he  is  not  limited  to  a  mere  review  of 
the  evidence  taken  before  the  local  board,  School 
Law,  §  10,  providing  that  the  facts  involved 
shall  be  made  known  to  the  commissioner  by 
sworn  written  statements,  accompanied  by  cer- 
tified copies  of  documents. 

[Ed.  Note. — For  other  cases,  see  Schools  and 
School  Districts,  Cent.  Dig.  §{  93-99.] 

S.  Schools  and  School  Districts  ®=>63(2)— 

DisiHSBAL  or  Officer  —  Sdfficienct  or 

Evidence. 

Dismissal  of  an  officer  under  the  school  law 

by  a  local  board  of  education  on  testimony  of 

one  who  has  been  convicted  of  perjury,  in  the 

face  of  the  officer's  denial,  is  not  justified. 

4.  ScBoou  AND  School  Districts  ^=»47  — 
BmcoTAL  or  OrncEB  —  Setting  Abide  bt 
State  Board— Effeot. 

Action  of  the  state  board  of  education  In  set- 
ting aside  the  removal  by  a  local  board  of  edu- 
cation of  an  officer  under  the  school  law  has 
the  effect  of  a  judgment. 

[Ed.  Note.— For  other  cases,  see  Schools  and 
Districts,  Cent  Dig.  {§  83-99.] 

5.  Mandakitb  «=>10e(2)— Patmsnt  or  Sal- 

ABT. 

One  whose  removal  from  an  office  under  the 
school  law  by  a  local  board  of  education  has 
been  set  aside  by  the  state  board  is  entitled  to 
mandamus,  commanding  the  drawing  and  paying 
of  a  salary  warrant,  on  a  showing  of  liaving 
been  ready  and  willing  to  perform  his  duty,  and 
refusal  of  the  local  board  to  allow  him  to  do  eo, 
and  refusal  to  pay  him,  and  possession  of  mon- 
eys applicable  to  the  payment 

[Ed.  Note. — For  other  cases,  see  Mandamos, 
Cent.  Dig.  K  218.  219,  221.] 

6.  MANDAinrs  «=»ie3— Demurbbb  to  Alteb- 
native  Writ. 

Averments  of  alternative  writ  of  mandamus 
are  admitted  by  demurrer  thereto. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Cent  Dig.  !|  841-343.] 

Proceeding  by  Uustav  G.  Schwanrock 
against  the  Board  of  Education  of  Bayonne. 
Heard  on  certiorari  of  decision  of  State 
Board  of  Education  and  on  demurrer  to 
alternative  mandamus.  Decision  sustained, 
and  writ  granted. 

Argued  before  Justice  SWATZE,  sitting 
alone  pursuant  to  the  statute. 


Mark  Townsend,  Jr.,  of  Jeney  City,  for 
SctawarcroclL  Daniel  3.  Hurray,  of  Bayonne, 
tor  Board  of  Education. 

SWATZE,  J.  The  certiorari  at  tlie  suit  of 
tlie  board  of  education  brings  up  the  decision 
of  the  state  board  affirming  the  commissioner 
of  education  and  reversing  the  action  of  the 
local  board  removing  Schwarzrock  from  tlie 
position  of  supervisor  of  buildings  and  re- 
pairs. 

[1]  1.  I  agree  with  the  state  board  tliat 
the  controversy  was  one  of  which  the  com- 
missioner of  education  and  the  state  l>oard 
had  Jurisdiction  under  section  10  of  the 
school  law.  That  controversy  was  whether 
the  local  board  Iiad  rightfully  removed 
Schwarzrock  from  a  position  existing  under 
the  school  law.  The  proceeding  could  only 
result  in  either  atiirming  or  reversing  the 
removal.  It  could  not  result  in  any  binding 
judgment  as  to  his  guilt  or  innocence  of  the 
charge  of  attempted  bribery ;  the  fluding  that 
he  was  guilty  or  innocent  could  only  be  a 
finding  for  the  purpose  of  action  by  the 
board,  not  for  the  purposes  of  the  criminal 
law.  Whether  in  such  a  case  the  board 
should  act  before  action  is  taken  by  the 
criminal  courts  is  a  matter  resting  in  the 
discretion  of  the  board. 

[2, 3]  2.  It  necessarily  results  from  the 
provision  that  the  facts  involved  in  any  con- 
troversy or  dispute  shall  be  made  known  to 
the  commissioner  by  written  statements,  veri- 
fied by  oath  and  accompanied  by  certified 
copies  of  documents,  that  the  hearing  before 
him  should  be  a  new  hearing,  and  that  he  is 
not  limited  to  a  mere  review  of  evidence 
taken  liefore  the  local  board.  An  examina- 
tion of  the  evidence  in  this  case  makes  it 
clear  that  the  commissioner  and  the  state 
board  reached  a  correct  result  It  wooild  be 
intolerable  to  permit  a  public  official  of  good 
repute  to  be  dismissed  from  office  on  the 
testimony  of  one  who  had  been  convicted  of 
perjury,  in  the  face  of  the  officer's  denial. 

[4-6]  3.  The  action  of  the  state  board  set- 
ting aside  the  removal  of  Schwarzrock  baa 
the  effect  of  a  judgment,  and  a  mandamus 
wlU  issue  in  a  proper  case.  Thompson  t. 
Board  of  Education.  C7  N.  J.  Law,  CSS,  31 
AtL  168.  The  alternative  writ  in  the  pres- 
ent case  avers  that  Schwarzrock  was  ap- 
pointed supervisor  for  three  years  at  a  sal- 
ary of  11,800;  that  after  his  wrongful  dia> 
missal  he  was  always  ready  and  willing 
to  perform  bis  duties  until  July  1,  1916 
(the  expiration  of  his  term),  and  that  the 
local  board  refused  to  allow  him  to  do 
so;  that  they  refused  to  pay  him  the  sum  due 
as  salary,  $3,000;  that  there  are  funds  In 
the  bands  of  the  commissioner  of  finance  and 
the  custodian  of  titie  school  funds  applicable 
to  the  payment  at  said  sum  of  $3,0(X>.  These 
averments  are  admitted  by  the  demurrer. 
Perhaps  the  defendant  meant  to  challenge 
the  averments  by  the  reasons,  but  it  is  a  mls- 


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BAIZ  V.  COEO  A  L.  V.  R.  &  IMPROVEMENT  C». 


395 


take  to  say,  as  In  reasons  three  and  four, 
tbat  the  writ  does  not  show  that  the  amount 
claimed  Is  In  possession  of  respondents,  and 
tbat  it  does  not  show  that  the  respondents 
are  in  irassesslon  of  moneys  applicable  to  the 
payment  required  by  the  writ  The  writ  does 
show  these  facts.  If  the  defendants  pieant 
to  traverse  the  averments  they  should  not 
have  demurred.  I  cannot  distinguish  the 
present  case  from  Thompson  v.  Board  of  Edu- 
cation. The  writ  should  go.  While  It  prays 
relief  In  the  alternative,  that  was  proper  in 
view  of  the  relator's  uncertainty  whetlier 
there  were  funds  in  hand  to  meet  his  dalm. 
In  view  of  the  admission  of  that  fact,  I  see 
no  reason  why  the  iieremptory  mandamus 
should  not  command  the  drawing  of  a  sala- 
ry warrant  upon  the  custodian  and  the  pay- 
ment by  the  custodian,  or  other  proper  of- 
ficer. 

The  rdator  is  entitled  to  costs. 


(S7  N.  J.  Bq.  4S8) 

BAIZ  et  al.  v.  CORO  &  Jj.  V.  R.  &  IMPROVE- 
MENT CO.    (No.  25/810.) 

(Court  of  Chancery  of  New  Jersey.    May  11, 
1917.) 

1.  CoBPOBATioNs  €=>478  — Mortgages  — Va- 

LiniTT— AraEB-ACQUIBED  PbOPERTT. 

In  1892  the  government  of  Venezuela  grant- 
ed a  concession  for  the  construction  of  the  Coro 
&  La  Vela  Railroad,  end  in  1895  the  grantee's 
administrator  assigned  the  concession  to  another 
IndividDal,  who  reassigned  it  to  a  New  Jersey 
corporation  known  as  the  Coro  &  La  Vela  Rail- 
road &  Improvement  Company.  The  original 
concession  authorized  a  transfer  thereof  to  a 
national  or  foreign  corporation.  Later  in  1885 
the  corporation  executed  a  mortgage  to  secure 
its  bonds  covering  all  the  tangible  property,  and 
Including  the  concession  contract  and  including 
"all  property  that  might  thereafter  be  acquired 
for  use  m  connection  with  the  mortgagor's  busi- 
ness, together  with  all  the  reversion,  remainders, 
income,  tolls,  revenues,  rents,  issues,  and  profits 
arising  out  of  or  from  the  operation  of  the  rail- 
road or  any  part  thereof,  and  privileges,  benefits, 
and  appurtenances  now  or  hereafter  belonging 
or  in  any  wise  appertaining  thereto."  In  1896 
Venezuela  by  statute  permitted  the  granting  of 
subsidies  to  railroads,  prohibiting  their  trans- 
fer to  foreign  governments,  and  providing  that 
transfers  between  private  individuals,  syndi- 
cates, or  companies  must  be  previously  approved 
by  the  national  executive.  In  1^7  a  conces- 
sion on  such  terms  was  granted  to  the  Coro  & 
I/a  Vela  Railroad  &  Improvement  Company. 
Through  the  mixed  commission  of  the  United 
States  and  Venezuela  the  railroad's  claim  for  a 
concession  was  allowed  in  part,  and  the  govern- 
ment of  Venezuela  required  to  pay  the  amount 
allowed  to  the  government  of  the  United  States 
for  the  benefit  of  the  railroad.  The  government 
of  Venesuela  then  seized  the  railroad  and  oper- 
ated it  for  a  period  of  years.  In  1900  the  Gov- 
ernor of  New  Jersey  declared  the  railroad  char- 
ter void  for  nonpayment  of  taxes,  and  later  a 
receiver  was  appointed.  In  1907  Venezuela 
filed  a  petition  in  bankruptcy  against  the  rail- 
road, which  was  adjudicated  a  bankrupt,  the 
decree  finding  that  the  mortgage  was  mvalid, 
tmt  that  the  bonds,  the  greater  part  of  which 
were  held  by  the  Venezuelan  government,  were 
valid,  and  the  railroad's  assets  were  sold  under 
bankruptcy  proceedings.  Held,  that  the  mort- 
gage of  1S}5,  purporting  to  cover  the  concession 


of  1892,  if  ever  valid  as  to  the  original  con- 
cession, was  not  an  equitable  mortgage  on  the 
after-acquired  subsidy,  represented  by  an  award 
of  the  mixed  commission. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  i  1871.] 

2.  Railboads  <s=9ie6— EqtnTABUC  Mobtoao- 

ES — CONSTKUCnON. 

A  somewhat  strict  construction  is  required 
of  railroad  mortgages  when  ascertaining  their 
effect  as  equitable  mortgages  on  after-acquired 
property. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  !S  616-518.] 

3.  Railboads  €=>177— Mobtgagbs— Validitt 

— ArTEB-AcQ.UIBED   PbOFEBTT. 

A  railroad  mortgage  to  secure  its  bonds  cov- 
ering "all  the  tangible  property,"  and  including 
the  concession  contract  and  including  "all  prop- 
erty that  might  thereafter  be  acquired  for  use  in 
connection  with  the  mortgagor's  business,  to- 
gether with  all  the  reversion,  remainders,  In- 
come, tolls,  revenues,  rents,  issues,  and  profits 
arising  out  of  or  from  the  operation  of  the  "ail- 
road  or  any  part  thereof,  and  privileges,  benefits, 
and  appurtenances  now  or  hereafter  belonging 
or  in  any  wise  appertaining  thereto,"  if  it  creates 
any  right  at  all  as  to  an  after-acquired  subsidy, 
creates  a  right  which  can  be  asserted  only  after 
some  form  of  seizure  of  the  subsidy. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
CJent.  Dig.  Si  391,  594-599.] 

4.  Judgment  <S=3822(3)  —  VALinrrr  —  Arm- 
AcquiBED  Pbopebtt. 

As  the  le^al  situs  of  the  right  to  receive  the 
subsidy  was  in  Venezuela,  the  decree  of  Vene- 
zuela that  the  mortgage  was  invalid  foreclosed  its 
right  to  assert  in  the  courts  of  New  Jersey  the 
validity  of  the  mortgage,  so  as  to  embrace  the 
subsidy,  although  the  subsidy  actually  came  in- 
to the  possession  of  the  receiver  in  New  Jersey. 
[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  {  1500.] 

6.  COBPOBATIONS     «=9482(1)— Vauditt— AlT- 
KB-AOQUIBED    PKOPEBTY — HOTCHPOT. 

In  such  case  held,  that  Venezuela  was  oblig- 
ed in  equity  to  put  in  hotchpot  dividends  receiv- 
ed on  her  claim  through  the  Venezuela  bankrupt 
proceedings. 

[Ed.  Note.— For  other  cases,  see  C!orporations, 
Cent  Dig.  §i  1877-1879.] 

Receivership  proceedings  by  Emily  M.  Balz 
and  others  against  the  C!oro  &  La  Vela  Rail- 
road &  Improvement  Company.  From  an  ad- 
judication of  the  receiver  of  the  Insolvent 
corporation  in  respect  to  the  allowance  of 
their  claims,  certain  creditors  appeal,  and 
Frank  S.  Bright,  as  counsel  for  the  receiver, 
applies  for  an  allowance  of  counsel  fees.  Ap- 
peal of  the  Republic  <rf  Venezuela  not  sus- 
tained. On  appeal  of  the  Balz  estate,  affirm- 
ed.   Claim  of  Bright  allowed. 

fOhomas  L.  Raymond,  of  Newark,  and 
Francis  P.  Pace,  of  New  York  City,  for  Re- 
public of  Venezuela.  M.  T.  Rosenberg,  of 
Jersey  City,  and  Edgar  J.  Nathan  and 
Michael  H.  Oardozo,  Jr.,  both  of  New  York 
City,  for  the  executors  of  Balz.  Charles 
D.  Thompson,  of  Jersey  City,  for  Bright 
Charles  L.  Oarrlck,  of  Jersey  (Aty,  pro  se. 

STEVENSON,  V.  C.  There  are  in  this  pro- 
ceeding three  separate  matters  which  have 
been  to  a  large  extent  heard  together.    It  will 


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101  ATLANTIC  REPORTEB 


(N.J. 


be  tbe  function  of  this  memorandum  to  set 
forth,  aa  briefly  as  possible,  the  conclusions 
which  I  have  readied,  and  state  the  prin- 
cipal reasons  for  such  conclusions. 

1.  The  first  case  to  be  considered  is  pre- 
sented by  the  appeal  of  the  United  States  of 
Venezuela  from  the  action  of  the  receiver 
in  disallowing  Its  claim  to  a  preferred  charge 
amounting  to  $114,700,  and  Interest  to  a  large 
amount  thereon,  under  a  mortgage  alleged  to 
cover  the  entire  fund  In  the  receiver's  hands. 
I  am  not  certain  whether  the  receiver  re- 
jected this  claim  In  toto,  or  allowed  it  as  a 
general  claim,  but  rejected  It  as  a  preferred 
claim  under  the  mortgage  referred  to.  How- 
ever that  may  be,  the  evidence  satisfies  my 
mind  that  the  appellant  holds  139  mortgage 
coupon  bonds  of  the  Core  &  La  Vela  Rail- 
road &  Improvement  Company  of  $1,000  each, 
and  that  these  bonds  constitute  valid  obliga- 
tions of  this  corporation,  and  that  through 
bankruptcy  proceedings  In  Venezuela  $25,300 
of  this  bonded  indebtedness  was  paid,  leaving 
the  baliince  ($114,700)  with  a  large  amount  of 
interest  due  and  unpaid  and  entitled  to  pay- 
mmt  out  of  the  fund  In  the  receiver's  hands, 
either  preferentially  or  concurrently  with  the 
general  claims  which  have  been  proved. 

The  only  question  to  be  considered  in  rela- 
tion to  this  claim  of  Venezuela  is  whether  it 
stands  aa  an  Incumbrance  upon  the  fund  In 
the  receiver's  bands.  My  conclusion  Is  that 
it  does  not,  and  the  reasons  for  this  conclu- 
sion require  some  statement  of  the  facts. 

(1)  On  December  12,  1892,  the  original  con- 
cession contract  for  the  construction  of  the 
Coro  &  La  Vela  Ballroad  In  V^iezuela  was 
granted  by  the  government  of  Venezuela  to 
"Manases  Capriles  and  to  his  partners,  as- 
sociates, or  successors."  This  concession  or 
contract  does  not  appear  to  have  been  ap- 
proved as  required  by  law  until  March  26, 
1895.  By  assignment  dated  July  8,  1895, 
from  the  administrator  and  next  of  kin  of 
Manases  Capriles,  who  was  then  deceased, 
and  his  original  "associates,"  this  conces- 
sion was  transferred  to  Abram  W.  Naar. 
Jacob  Balz,  of  New  York  City,  appears  to 
have  been  the  promoter  or  the  principal 
original  promoter  of  this  Venezuela  railroad 
enterprise,  and  for  the  purpose  of  Its  proper 
exploitation  a  corporation  was  created  under 
the  laws  of  <New  Jersey  entitled  tbe  Coro  St 
La  Vela  Railroad  &  Improvement  Company, 
among  tlie  objects  of  which  was  the  construc- 
tion and  operation  of  this  railroad.  On  Au- 
gust 12, 1896,  a  month  after  Naar  had  acquir- 
ed the  concession  from  the  Capriles  syndicate, 
he  assigned  it  to  this  New  Jersey  corpora- 
tion, the  Coro  &  La  Vela  Railrced  &  Im- 
provement Company.  By  the  tenth  article 
.of  this  original  concession  It  was  provided 
that: 

"The  grantee,  his  associates  or  bis  successors, 
will  have  tbe  right  to  transfer  or  convey  this 
concession  to  another  party,  or  to  a  national  or 
foreign  corporation,  with  the  same  rights,  condi- 
tions, aiid  obligations  that  are  established,  com- 


plying with  the  formalities  of  tbe  law,  and  giv- 
ing due  notice  to  tbe  government." 

There  are  grounds  for  arguing  as  will  here- 
inafter appear  that  this  express  provision 
contemplated  the  assignment  of  the  conces- 
sion to  a  national  or  foreign  corporation  or 
other  party  capable  of  carrying  out,  and  in- 
tending to  carry  out,  the  work  of  constructing 
the  railroad  for  tbe  pr(»notlon  of  which  the 
concession  was  made.  Tbe  evidence  bearing 
upon  this  question  Is  In  an  unsatisfactory 
condition.  I  think,  however,  that  we  may 
assume,  for  present  purposes  only,  that  this 
original  concession  expressly  provided  that 
It  might  be  assigned  by  way  of  mortgage  to 
secure  money  to  a  foreign  corporation  not 
expressly  authorized  to  construct  railways 
in  foreign  countries,  and  not  Intending  to 
engage  in  such  work. 

On  August  20,  1895,  the  Coro  ft  La  Vela 
Railroad  &  Improvement  Company  executed 
In  the  usual  form  a  mortgage  to  the  Farmers' 
Loan  &  Trust  Company  of  New  York  City  as 
trustee,  to  secure  an  Issue  of  150,000  bonds  of 
$1,000  each.  The  139  bonds  above  mentioned 
held  by  the  appellant  upon  which  its  claim  la 
based  are  a  part  of  this  issue.  Tbe  mortgage 
covered  aU  the  tangible  property  of  tbe  cor- 
poration, and  also  expressly  included  tbe  con- 
cession contract,  and  used  terms  which  w,lll 
be  mentioned  hereafter  to  extend  its  scope 
as  an  equitable  mortgage  to  after-acquired 
property  of  a  certain  description. 

On  May  18,  1896,  while  the  railroad,  as  I 
understand  the  situation,  was  In  process  of 
construction,  there  was  a  law  or  decree  pass- 
ed by  the  government  of  Venezuela  permit- 
ting the  granting  of  subsidies  under  certain 
conditions  to  its  concessionaires  engaged  in 
the  construction  of  railroads  at  given  rates 
"for  every  section  of  ten  kilometers  finished." 
This  new  law  In  article  16  provided  as  fol- 
lows: 

"The  concessions  cannot  be  transferred  either 
totally  or  partly  to  foreign  governments.  Trans- 
fers between  private  individuals,  syndicates  or 
companies  must  be  previously  approved  by  the 
national  executive  in  order  to  be  valid." 

This  new  law  of  Venezuela  was  approved 
May  27,  1896. 

On  May  18,  1807,  the  government  of  Vene- 
zuela, pursuant  to  the  provisions  of  the  last- 
mentioned  statute  or  decree,  entertained  the 
application  of  an  agent  of  the  Coro  ft  La 
Vela  Railroad  ft  Improvement  Company  for 
the  "addition  of  an  article"  to  the  conces- 
sion contract  of  1892  "for  the  construction  of 
a  railroad  between  the  port  of  La  Vela  and 
the  city  of  Coro,  granting  a  subvention  from 
the  national  treasury  of  twenty  tbousand 
bolivars  for  each  kilometer  of  road,"  and 
thereupon  granted  such  subvention,  payment 
thereof  to  be  made  "at  tbe  completion  of 
each  ten  kilometers."  This  supplementary 
concession  of  1897  recites  that  tbe  raUroad 
was  then  In  process  of  construction.  There 
can  be  no  doubt  that  this  subvention  was 
made  to  tbe  Coro  &  La  Vela  Railroad  & 


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BAIZ  V.  OOEO  &  L.  V.  B.  &-  IMPROVEMENT  CO. 


397 


Improvement  Company,  which  was  then  en- 
gaged In  completing  the  railroad. 

On  Pebraary  18,  189S,  the  amount  of  the 
subsidy  which  was  dne  from  the  govenmient 
of  Venezuela  to  the  Coro  &  la  Vela  Railroad 
&  Improvement  Company  was  ascertained, 
according  to  law,  by  the  proper  oCBceis  of  the 
Venezuelan  governmait  and  "liquidated"  at 
the  sum  of  270,000  bolivars.  No  part  of  this 
money  was  paid  except  in  pursuance  of  the 
award  hereinafter  mentioned. 

The  history  of  this  railroad  enterprise  in 
Venesuela  for  some  years  after  the  liquida- 
tion of  the  subsidy  in  1886  is  very  slightly 
touched  upon  In  the  evidence.  It  is  a  matter 
of  history  that  Venezuela  became  Involved 
in  difflcultles  with  foreign  governments,  and 
that  her  custom  houses  were  seized  and  that, 
largely  through  the  Intervention  of  the  Unit' 
«d  States,  an  adjustment  of  the  financial 
claims  held  by  citizens  of  the  United  States 
and  other  countries  against  Venezuela  was 
effected  through  a  "mixed  commission"  creat- 
ed by  the  United  States  of  America  and  the 
Republic  of  Venezuela.  The  claim  of  the 
Goro  &  tA  Vela  Railroad  against  Venezuela 
for  the  ascertained  amount  of  the  subvention 
had  been  diligently  pressed  on  behalf  of  the 
railroad  company  by  the  direction  of  Mr. 
Jacob  Baiz,  who  seems  to  have  stood  behind 
the  whole  enterprise  as  Its  chief  promoter 
and  cMef  creditor.  Mr.  Bright,  whose  claim 
to  comi)ensation  will  hereinafter  be  consider- 
ed, kept  urging  this  claim  through  the  diplo- 
matic agencies  at  Wadilngton,  under  the 
direction  of  Mr.  Baiz  until  his  death  in  1899, 
and  aftei  that  under  the  direction  or  in  the 
name  of  his  personal  representatives  or  the 
railroad  company  itself. 

The  railroad  company  at  some  time,  before 
or  aftet  the  death  of  Mr.  Jacob  Baiz — prob- 
ably some  time  after — became  insolv^it  or 
for  some  other  reason  incapable  of  continu- 
ing it«  buainess,  and  the  status  of  its  prop- 
erty in  Venezuela  is  only  vaguely  indicated  by 
the  evidence  in  this  case.  It  Is  alleged  that 
the  goverment  of  Venezuela  took  possession 
of  all  the  railroad  property  and  proceeded  to 
operate  the  railroad.  It  may  be  surmised 
that  whoever  held  and  operated  this  railroad 
made  no  profit  therel)y. 

On  May  2,  1900,  the  Governor  of  New 
Jersey  by  proclamation  declared  the  charter 
of  the  Coro  &  La  Vela  Railroad  &  Improve- 
ment Company  void  on  account  of  the  non- 
payment of  taxes  due  the  state  for  the  year 
1S97.  Previous  to  the  making  of  this  procla- 
mation the  corporation  had  been  enjoined  by 
tlie  Court  of  Chancery  of  New  Jersey  from 
the  transaction  of  any  further  business  on 
account  of  the  nonpayment  of  said  taxes. 
Whether  the  directors  of  the  corporation  at 
the  time  of  its  dissolution  by  proclamation 
made  any  effort  to  obtain  or  administer  the 
assets  of  the  corporation  does  not  appear,  but 
the  inference  seems  to  be  warranted  that 
these  directors  took  no  steps  in  that  direction. 


In  May,  1903,  there  being  a  prospect  that 
the  "mixed  commission"  might  make  an 
award  in  favor  of  the  claim  which  Mr. 
Bright  had  been  urging,  the  present  suit  was 
brought  in  this  court  by  £mily  M.  Baiz  and 
others,  executors  of  Jacob  Baiz,  deceased, 
against  the  Coro  &  La  Vela  Railroad  &  Im> 
provement  Company  and  its  directors  pray- 
ing that  a  receiver  be  appointed  of  all  the  as- 
sets of  the  corporation,  and  that  the  directors 
be  enjoined  from  transferring  or  in-  any  way 
interfering  with  the  same,  and  thereupon 
such  injunction  was  granted  and  Mr.  William 
6.  E.  See,  now  deceased,  was  appointed  re- 
ceiver. 

Upon  the  appointm^it  of  Mr.  See  as  re- 
ceiver Mr.  Bright  In  May,  19(3,  presMited  to 
the  proper  United  States  officials  at  Wash- 
ington a  memorial  from  the  receiver  setting 
forth  that  the  Coro  &  La  V^  Railroad  & 
Improvement  Company  had  completed  the 
railroad  from  La  Vela  to  the  city  of  Coro,. 
in  accordance  with  its  contract,  and  that  the 
amount  of  the  subvention  had  been  liquidat- 
ed by  the  Venzuelan  officers  at  270,000  boli- 
vars, and  that  no  part  of  this  money  had  been 
paid.  The  memorialist,  prayed  that  the  claim' 
be  presented  by  the  agent  of  the  United 
States  to  the  "mixed  commission"  according 
to  the  protocol,  etc.,  and  that  the  agent  of  the 
United  States  be  directed  to  insist  upon  pay- 
ment. 

In  June,  1903,  the  "mixed  commission" 
rendered  Its  judgment  awarding  the  sum  of 
$61,101.70  in  United  States  gold  cohi  "in 
favor  of  said  claimant,"  who  is  referred  to. 
as  the  Coro  &  La  Vela  Railroad  &  Improve- 
ment Company,  and  directed  that  the  said 
sum  should  be  paid  by  the  government  of 
Venezuela  to  the  government  of  the  United 
States  of  America  in  accordance  with  the  pro- 
visions of  the  convention  under  which  the 
award  was  made.  No  money  was  received  by 
the  United  States  on  this  claim  for  a  number 
of  years,  owing  mainly,  I  understand,  to  the 
preference  which  was  given  to  the  payment 
of  certain  other  claims  of  great  magnitude. 
The  entire  amount  has  now  been  collected 
from  the  United  States  government  by  a 
series  of  receivers,  and  the  present  receiver 
has  in  hand  the  sum  of  $51,000  for  distribu- 
tion pro  rata  among  six  or  eight  parties  who 
have  presented  their  claims  under  oath  to 
one  or  another  of  these  receivers,  or  for  dis- 
tribution pro  rata  among  the  holders  of  the 
mortgage  bonds.  It  will  be  seen  that,  if  the 
mortgage  is  held  to  be  a  valid  incumbrance 
upon  this  money,  the  United  States  of  Vene- 
zuela will  take  about  fourteen-flfteenths  of 
the  fund.  If,  however,  the  mortgage  is  not  an 
incumbrance  upon  this  money,  then,  as  I  have 
found  the  bonds  to  be  valid  obligations  of  the 
insolvent  corporation,  the  United  States  of 
Venezuela  will  take  a  smaller,  but  still  very 
large,  share  of  the  fund,  the  amount  of  which 
will  depend  upon  the  aggregate  amount  of 
other  claims  which  are  allowed.  It  may  be 
noted  in  passing  that  it  appears  from  a  state- 


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101  ATIiANTIC  REPORTBR 


(N.J. 


ment  of  tbe  claims  presented  to  the  receiver 
that,  if  the  appeal  of  Venezuela  from  the  al- 
lowance by  the  recover  of  the  claim  of  tbe 
estate  of  Jacob  Balz,  amounting  to  orer 
$75,000,  should  be  Anally  sustained,  the  result 
would  be  that  Venezuela  would  not  be  great- 
ly interested  in  securing  the  establishment  of 
the  mortgage  as  a  lien  on  the  fund.  If,  how- 
ever, the  Baiz  claim  Is  finally  allowed,  the 
dividend  of  Venezuela  will  be  reduced  from 
about  fourteenth-fifteenths  to  about  two- 
thirds;  the  other  clalou  allowed  besides 
these  two  large  ones  being  for  comparatively 
small  sums. 

I  have  referred  to  the  obscurity  in  which 
the  evidence  leaves  the  status  of  the  railroad, 
whldi  seems  to  have  been  to  a  large  extent 
completed  by  1898,  during  the  eight  or  ten 
years  which  followed.  The  sole  purpose  of 
the  present  suit  in  this  conrt  seems  to  have 
been  to  procure  the  appointment  of  a  re- 
ceiver through  whom  the  dalm  for  the 
270,000  bolivars  could  be  presented  to  the 
"nixed  commission,"  and  by  whom  any  mon- 
ey awarded  on  account  of  that  claim  oould 
be  received.  The  first  receiver,  Mr.  See,  ap- 
pears to  have  made  no  effort  to  discover  any 
assets  in  Venezuela.  In  whose  possession 
these  assets  were  in  1903,  and  thereafter  un- 
til 1908,  we  are  not  definitely  Informed,  al- 
though, as  I  have  said,  it  Is  alleged  that  tbe 
railroad  property  in  Venezuela  had  been  seiz- 
ed by  the  government  of  Venezuela. 

Continuing  the  history  of  this  South  Amer- 
ican railroad  enterprise.  It  appears  that,  how- 
ever the  railroad  may  have  been  then  held 
or  operated,  in  December,  1907,  the  Republic 
of  Venezuela  filed  a  petition  in  bankruptcy  in 
one  of  her  courts  agjtnst  the  Ck>ro  &  La  Vela 
Railroad  &  Improvement  Company,  and 
thereupon  promptly  the  court  made  an  ad- 
judication of  bankruptcy  against  the  com- 
pany. Tbe  Judgment  of  the  court  found.  In 
accordance  with  the  allegations  of  tbe  peti- 
tion filed  on  behalf  of  the  Republic  of  Ven- 
ezuela, that  Venezuela  was  a  creditor  of  tbe 
bankrupt  as  the  holder  of  140  of  the  said 
Issue  of  mortgage  bonds,  and  further  found, 
in  accordance  with  the  allegations  and  prayer 
of  the  petition,  that  the  mortgage  was  Invalid 
under  the  laws  of  Venezuela  as  to  all  prop- 
erty situate  In  that  country.  The  bankruptcy 
proceedings  seem  to  have  corresponded  with 
similar  proceedings  in  rem  under  bankrupt 
laws  of  other  nations,  but  include  a  Judgment 
invalidating  the  mortgage,  although  tbe  in- 
ference is  that  the  mortgagee,  tbe  Farmers' 
Loan  &  Trust  Company  of  New  York,  was 
not  notified  of  the  destructive  claim  which 
was  made  against  its  mortgage,  and  in  no 
way  appeared  or  was  represented  in  the 
proceeding.  The  Important  fact,  however,  to 
be  noted  is  that  Venezuela  procured  this  de- 
cree adjudicating  in  her  court  that  she  was  a 
creditor  as  the  holder  of  these  mortgage 
bonds;  that  the  mortgage  which  secured 
these  bonds  and  which  covered  practically  all 


the  property  of  tbe  mortgagor,  and  all  of 
which  was  situated  in  Venezuela,  was,  under 
the  laws  of  Venezuela,  invalid  as  to  such 
property.  Tbe  administration  of  tbe  assets 
of  the  bankrupt  then  proceeded  in  a  manner 
corresponding  with  such  proceedings  in  our 
own  courta  The  decree  of  bankruptcy  di- 
rected that  creditors  residing  in  Venezuela 
should  present  their  claims  within  15  days, 
"plus  the  traveling  time,"  and  that  creditors 
residing  out  of  Venezuela  be  notified  of  the 
adjudication  of  bankruptcy,  and  that  sndi 
creditors  should  prove  their  claims  within 
certain  periods  prescribed  according  to  the 
location  of  the  creditors.  Whether  the  estate 
of  Jacob  Baiz  was  treated  as  resident  In 
Venezuela,  or  whether  it  was  treated  as  resi- 
dent In  New  Toric,  and  therefore  entitled  to 
five  months'  notice,  does  not  appear.  It  does 
appear  that  the  claim  of  the  Balz  estate  was 
not  proved  In  this  bankruptcy  proceeding. 

On  October  26,  1008,  the  Venezuelan  bank- 
ruiA  court  made  an  order  for  tbe  sole  of  the 
railway,  teleph<me  line,  real  estate,  boild- 
ings,  machinery,  rolling  stock,  etc.,  of  the 
bankrupt,  and  In  describing  tbe  property  sold 
expressly  enumerated  the  "stock  of  tools, 
implements,  and  other  personal  property  for 
the  use  and  service  of  the  railroad  enterprise 
situate  at  its  stations  at  Coro  and  La  Vela 
and  in  the  workshop."  It  is  plain  that  the 
liability  of  Venezuela  under  the  award  of  the 
"mixed  commission"  made  five  years  before 
this  bankrupt  sale  was  not  included  In  the 
assets  Of  the  bankrupt  which  were  inven- 
toried and  sold.  This  liability  had  been 
merged  in  an  award  in  tbe  nature  of  a  Judg- 
ment requiring  Venezuela  to  pay  an  amount 
of  money  to  the  United  States  of  America  on 
account  of  the  claim  of  the  Coro  &  La  Vela 
Railroad  &  Improvement  Company,  and  the 
bankrupt  court  of  Venezuela  made  no  attempt 
to  collect  or  sell  the  a.ward.  The  decree  for 
the  sale  of  the  assets  of  the  company  recog- 
nized tbe  claim  of  Venezuela,  as  the  holder 
of  140  of  the  mortgage  bonds,  to  an  amount 
with  interest  then  ascertained  to  be  ov^ 
1,000,000  bolivars.  The  aggregate  amount  ot 
tbe  daims  of  IS  other  creditors  was  found  by 
the  decree  to  be  nearly  70,000  bolivars.  Ven- 
ezuela therefore  was  found  entitled  to  about 
fourteen-fifteenths  of  the  entire  proceeds  ot 
the  bankrupt  estate.  The  decree  further  ad- 
judicates, a  sale  having  been  held  and  the 
assets  apparently  having  been  bought  in  on 
behalf  of  Venezuela,  that  tbe  United  States  of 
Venezuela  was  the  owner  of  the  assets  "tor 
the  price  of  139,094  bolivars,  the  said  prop- 
erty to  form  part  of  tbe  private  dominion 
of  tbe  United  States  of  Venezuela."  It  may 
be  noted  that  this  final  decree  of  October  26. 
1908,  adjudicates  again  that  the  mortgage  of 
the  Farmers'  Loan  &  Tmst  Company  "wa» 
not  known  to  the  Venezuelan  law,  could  not 
produce  tbe  consequence  of  creating  in  favor 
of  tbe  holders  of  said  bonds  any  liens  or  spe- 
cial rights  over  the  properties  situated  to 


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BAIZ  T.  CORO  &  Lb  y.  B.  &  IMPROVIEMENT  OO. 


899 


Venemela  as  are  those  that  are  being  sold 
In  this  proceeding,"  and  that  the  purchaser 
would  take  free  from  all  Incumbrances. 

It  may  be  also  noted  in  passing,  as  one  of 
the  curious  and  interesting  features  of  these 
Venezuela  bankrupt  proceedings  in  1907, 
that  it  does  not  appear  that  the  Core  &  La 
Vela  Railroad  &  Improvement  Company  had 
been  doing  any  business  in  Venezuela  or  else- 
where for  at  least  four  years.  In  1900  this 
Mew  Jersey  corporation  was  enjoined  by  the 
Court  of  Chancery  of  New  Jersey  from  pros- 
ecuting any  business  on  account  of  the  non- 
payment of  taxes,  and  was  dissolved  by  proc- 
lamation according  to  law,  and  subsequently 
In  1903  its  entire  property,  so  far  as  the 
state  of  New  Jersey  could  control  the  same, 
was  placed  in  the  hands  of  a  receiver  sabject 
of  course  to  valid  Hens. 

(2)  Proceeding  now  to  the  examination  of 
the  question  whether  the  mortgage  of  the 
Farmers'  Loan  &  Trust  Company  ever  was  a 
valid  incumbrance  upon  the  original  conces- 
sion contract,  there  seem  to  be  strong  grounds 
for  answering  this  question  adversely  to  Ven- 
ezuela. The  mortgagor  was  located  in  Ven- 
ezuela. Apart  from  raising  money  and  pur- 
chasing material,  there  is  no  evidence  that  it 
ever  transacted  the  business  of  constructing 
or  operating  a  railroad  anywhere  else.  It 
was  created  for  the  purpose  of  constructing 
and  operating  for  40  years  this  railroad  in 
Venezuela.  This  New  Jersey  company  not 
only  established  Itself  In  business  in  Ven- 
ezuela, but  accepted  a  concession  contract 
under  Venezuelan  law,  and  that  contract  ex- 
pressly permitted  its  transfer  to  another  par- 
ty ".with  the  same  rights,  conditions,  and  ob- 
ligations that  are  established,  complying  with 
the  formalities  of  the  law  and  giving  due 
notice  to  the  government."  Whether  the 
"formalities  of  the  law"  were  complied  with 
and  notice  was  given  to  the  government  when 
this  assignment  by  way  of  mortgage  was 
made  to  the  Farmers'  Loan  &  Trust  Company 
are  matters  upon  which  the  evidence  gives 
little,  if  any,  information.  The  express  pro- 
vision for  an  assignment  of  the  concession 
under  conditions  seems  to  imply  the  exclu- 
sion of  assigjuuents  without  those  conditions. 
Moreover,  the  purpose  of  the  article  permit- 
ting an  assignment  seems  to  have  been  to 
permit  an  assignee  to  come  in  and  construct 
and  operate  the  railroad  under  the  terms  of 
the  concession.  We  are  certainly  far  away 
from  such  an  assignment  when  .we  are  pre- 
sented with  this  mortgage  made  to  secure 
money  and  given  to  a  trust  company  located 
in  the  city  of  New  Xork,  which  could  hardly 
be  exi>ected  to  stand  ready  to  go  down  to 
Venezuela,  construct  this  railroad  and  then 
operate  It  for  40  years. 

In  view,  however,  of  the  unsettled  ques- 
tions of  fact  relating  to  this  branch  of  our 
Inquiry  and  the  unsettled  questions  of  Ven- 
ezuela law  iiertaining  to  it,  I  have  concluded 
to  pass  this  fondamental  and  possibly  fatal 


objection  to  the  establialtment  of  this  mort- 
gage as  an  incumbrance  upon  the  right  of 
the  Coro  ft  La  Vela  Railroad  ft  Improvement 
Company  to  receive  this  award  of  money 
now  in  the  hands  of  the  receiver,  which 
award  was  based  upon  a  recognition  and 
enforcement  of  this  right. 

(3)  But  we  are  not  dealing  with  the  original 
concession  of  May  12,  1892.  For  present 
purposes,  we  may  assume  the  mortgage  to 
have  been  a  valid  incumbrance  upon  all  the 
rights  of  the  Coro  ft  La  Vela  Railroad  & 
Improvement  Company  under  that  conces- 
sion. We  are  dealing  with  the  subsidy  grant- 
ed by  what  la  in  effect  a  supplemental  con- 
cession In  1897,  nearly  two  years  after  the 
mortgage  was  made  to  the  Farmers'  Loan  ft 
Trust  Company  to  secure  this  issue  of  $150,- 
000  of  bonds,  and  one  year  after  a  new  law 
had  been  passed  by  the  government  of  Ven- 
ezuela permitting  such  subsidies  to  be  grant- 
ed. When  the  mortgage  was  made  not  only 
was  there  no  subsidy  provided  for,  but  there 
was  no  law  under  which  any  such  subsidy 
could  be  granted.  It  might  be  argued  that 
the  mortgage  of  the  original  concession  of 
1892,  especially  in  view  of  the  words  con- 
tained In  the  mortgage  with  respect  to  after- 
acquired  property,  would  operate  as  an  equi- 
table mortgage  upon  supplementary  articles 
which  might  be  added  from  time  to  time  by 
agreement  between  the  contracting  parties, 
Venezuela  and  the  mortgagor.  Unfortunate- 
ly for  this  argument,  when  we  examine  the 
law  of  Venezuela  passed  in  1896  permitting 
subsidies  to  be  provided  for  in  concession  con- 
tracts like  this,  we  find  the  above-quoted  ex- 
press provision  constituting  article  16  of  the 
statute ; 

"The  concessions  cannot  be  transferred  either 
totally  or  partly  to  foreini  Bovernments.  Trans- 
fers between  private  individuals,  syndicates,  or 
companies  must  be  previously  approved  by  tlie 
national  executive  in  order  to  be  valid." 

There  Is  no  pretense  that  the  allied  equi- 
table or  anticipatory  transfer  made  In  1895 
to  the  Farmers'  Loan  &  Trust  Company  of 
New  York  was  ever  "previously  approved" 
or  at  any  time  approved  by  the  national  exec- 
utive of  Venezuela,  as  is  expressly  required 
by  the  law  of  1806  nnder  whidi  the  subsidy 
was  granted  to  the  Coro  ft  La  Vela  Rail- 
road ft  Improvement  C<»npany.  If  It  Is 
worth  while  to  infer  or  surmise  as  to  the 
reasons  of  this  limitation  upon  transfers.  In 
view  of  the  plain  language  of  the  law,  it  may 
be  noted  that  the  manifest  object  of  Vene- 
zuela in  providing  by  law  for  these  subsidies 
to  railroad  companies  was  to  secure  the  con- 
struction (tf  railroads.  Great  evils  can,  I 
think,  be  pointed  out  resulting  in  the  preven- 
tion of  the  construction  of  a  subsidized  rail- 
road if  the  concession  and  the  right  to  re- 
ceive a  subsidy  under  it  could  be  mortgaged 
to  a  foreign  tmst  company.  In  view,  how- 
ever, of  what  seems  to  be  the  plain  prohibi- 
tion of  the  law  above  set  forth,  any  further 
discnsslOB  <rt  tb*  purpose  and  object  of  the 


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law  In  order  to  aid  In  Its  Interpretation  seems 
to  be  unnecessary. 

In  considering  the  question  of  the  assign- 
ability of  the  original  concession  of  1892,  and 
the  supplementary  concession  of  1S97,  It 
must  be  borne  In  mind  that,  while  the  origi- 
nal concession  was  assigned  to  Abram  W. 
Naar,  and  It  does  not  appear  that  such  as- 
signment was  permissible,  or  in  fact  was  val- 
id under  the  laws  of  Venezuela,  or,  tf  valid, 
was  made  In  accordance  with  the  express 
terms  of  the  concession  itself,  the  subsequent 
assignment  by  Naar  to  the  €!oro  &  La  Vela 
Railroad  &  Improvement  Company  was  recog- 
nized In  the  most  solemn  manner  by  Venezue- 
la, and  the  subsidy  was  made  directly  to  that 
company.  It)  is  the  transfer  of  rights  under 
the  concessloni  to  a  trust  company  in  a  for- 
eign state  by  means  of  an  Instrument  operat- 
ing as  an  equitable  mortgage  to  secure  loans 
of  money  with  which  we  must  deal,  and  to 
which  we  must  apply  these  provisions  of  the 
Venezuelan  contracts  and  Venezuelan  laws. 

[1]  In  my  judgment  this  mortgage  of  1895 
purporting  to  cover  the  concession  of  1892,  If 
valid  as  to  that  original  concession,  could  not 
possibly  operate  as  an  equitable  mortgage  up- 
on the  after-acquired  subsidy  under  the  law 
of  1896,  when  that  law  expressly  prohibits 
such  a  mortgage. 

[2]  (4)  If  we  assume  that  the  Coro  ft  I« 
Vela  Railroad  &  Improvement  Company  in 
1895  could  make  a  valid  mortgage  of  this  pos- 
sible right  to  a  subsidy,  which  possibly  might 
arise  In  the  future  under  a  new  law  which 
Venezuela  might  possibly  enact,  and  a  sup- 
plementary concession  which  Venezuela 
might  grant,  my  examination  of  the  terms  ol 
the  mortgage  itself  leads  me  to  the  conclu- 
sion that  it  could  not  and  did  not  at  any  time 
opente  as  an  equitable  assignment  or  raort> 
gage  of  the  right  of  the  mortgagor  to  receive 
this  subsidy,  which  right  could  not  have  been 
lawfully  created  when  the  mortgage  was 
made,  and  in  fact  did  not  come  into  existence 
until  two  years  afterwards.  The  rule  Is 
well  settled  which  compels  a  somewhat  strict 
construction  of  these  railroad  mortgages 
when  ascertaining  their  effect  as  equitable 
mortgages  upon  after-acquired  property.  The 
limits  of  this  memorandum,  if  it  is  to  have 
any,  will  not  permit  a  discussion  o£  the 
phraseology  of  this  mortgage,  which  must  be 
reviewed  for  a  minute  Investigation  of  its 
Interpretation  and  application  to  the  sub- 
vention. The  mortgage  undertakes  expressly 
to  convey  the  grant  and  concession  of  1892 
and  all  property  that  might  thereafter  be  ac- 
quired by  the  mortgagor  "for  use  In  connec- 
ti<»  with  its  business  as  a  railroad  corpora- 
tion." The  authorities,  I  think,  lead  to  the 
limitation  of  this  description  of  after-ac- 
quired property  to  what  may  be  so  acquired 
in  connection  wiOi  the  operation,  not  the 
construction,  of  the  railroad.  The  haben- 
dum which  counsel  for  Venezuela  thinks  fa- 
von  his  view  of  the  case  defines  the  tenure 
of  the  mortgagee  as  including  the  said  prop- 


erty and  the  premises,  real  and  personal, 
rights,  etc.,  "hereby  granted,  assigned  and 
conveyed,  or  intended  so  to  be,  with  all  and 
singular  the  reversion,  remainders,  income, 
tolls,  revenues,  rents,  issues,  and  profits  aris- 
ing out  of  or  from  the  operation  of  said  rail- 
road, or  any  part  thereof,  and  privileges, 
benefits,  and  appurtenances  now  or  here- 
after belonging  or  in  any  wise  appertaining 
thereto."  In  my  opinion  the  habendum 
clause,  the  fimction  of  which  it  is  to  define 
the  tenure  of  the  grantee,  indicates  that  the 
mortgage  did  not  contemplate  the  acquisition 
of  a  subsidy  or  subvention  under  a  law  which 
might  thereafter  be  enacted,  but  only  mon- 
eys which  might  be  acquired  from  the  con- 
struction of  the  railroad.  3  Cook  on  Corp. 
(4th  Ed.)  IS  856.  86T ;  Humphreys  v.  McKls- 
sock,  140  U.  S.  304,  11  Sup.  Ct  779,  35  L.  Ed. 
473;  New  Orleans  Pacific  Railroad  Co.  v. 
Parker,  143  U.  8.  42,  12  Sup.  Ct  364,  36  U 
Ed.  66 ;  Smith  v.  McCullough.  104  U.  S.  25,  26 
L.  Ed.  637;  Emerson  v.  European  ft  North 
American  Ry.  Co.,  67  Me.  387,  24  Am.  Rep.  39. 

(5)  If  we  assume  that  the  mortgage  con- 
tains language  which  should  be  construed  ns 
creating  under  certain  c<mditions  an  equita- 
ble incumbrance  upon  this  after-acquired 
right  to  the  subvention,  I  think  that  the  au- 
thorities will  not  permit  the  establishment  of  , 
such  an  equity  In  favor  of  the  mortgage  un- 
der the  circumstances  proved  in  tills  case. 
In  the  first  place,  it  should  be  noted  that  no 
attempt  has  been  made  to  angue  that  the 
mortgagee  could  have  taken  possession  of  this 
sum  of  270,000  bolivars  if  upon  the  liquida- 
tion of  the  subvention  at  that  sum  the  money 
had  been  paid  by  Venezuela.  The  most  that 
has  been  argued,  and  as  I  think  can  possibly 
with  any  show  of  reason  be  argued,  is  that 
upon  the  mortgage  coming  due  or  deftiult  in 
its  covenants  being  made  the  equity  of  the 
mortgagee  in  respect  of  tills  money  would 
arise.  That  the  mortgagor  before  the  mort- 
gage fell  due  could  collect  the  270,000  bolivars 
and  expend  them  in  any  legitimate  way  can- 
not be  doubted. 

Tbe  mortgage,  following  the  usual  fbrm, 
provides  that  until  default,  eta,  the  mort- 
gagor should  be  entitled  "to  remain  in  the 
full  possession,  use,  and  enjoyment  and  con- 
trol" of  all  the  property  mortgaged  or  In- 
tended to  be  mortgaged,  and  also  should  be 
entitled  "to  manage  the  same  and  to  receive 
and  use  the  income,"  etc.,  and  "all  mone.vs 
payable  and  receivable  or  derivable  there^ 
from."  The  mortgage  further  provides  that 
in  case  of  default  for  six  months  to  pay. 
etc.,  the  mortgagee  might  take  possession  of 
the  mortgaged  property  and  conduct  "the 
business  operations"  of  the  mortgagor  and 
exercise  Its  franchises  and  collect  the  rev- 
enues, etc.,  and  after  deducting  the  expenses 
apply  tbe  residue  of  the  money  to  the  pay- 
ment of  the  amount  due  on  the  bonds.  The 
mortgage  also  provided  that  in  case  of  de- 
fault, etc,  the  entire  mortgage  debt  might 
be  declared  to  be  dae,  and  thereupon  tlie- 


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401 


mortgagee  might  aell  the  mortgaged  property 
at  public  auction  in  the  manner  preacribed. 
ProTlslon  waa  also  made  in  the  mortgage 
for  the  appointment  of  a  recdver  upon  the 
commencement  of  any  JnA.clal  proceedings  to 
enforce  the  rights  of  the  mortgagee  and  the 
bondholders. 

[3]  I  think  imder  the  proyialons  of  this 
mortgage,  the  meet  Important  of  which  are 
above  set  forth,  the  right  of  the  mortgagee 
and  the  bondholders  to  have  this  instrument 
of  mortgage  enforced  as  an  equitable  mort- 
gage upon  this  subsidy,  the  right  to  widch 
did  not  exist  when  the  mortgage  was  made, 
does  not  appear  to  have  been  contemplated 
as  liable  to  come  into  existence  by  the  par- 
ties to  the  mortgage,  and  in  fact  came  into 
existence  two  years  afterwards — a  right  per- 
taining to  the  construction  of  the  railroad, 
and  not  to  Its  future  operation — can  only  be 
asserted  after  some  form  of  seizure  of  the 
sudsidy  or  the  property  with  which  it  was 
connected,  or  the  institution  of  some  proceed- 
ing to  enforce  the  mortgage.  While  the  mort- 
gagee was  standing  aside  and  making  no 
effort  in  any  way  whatever  to  enforce  Its 
mortgage  even  upon  the  tangible  property  of 
the  mortgagor,  and  was  leaving  the  mortgagor, 
80  far  as  it  (the  mortgagee)  was  concerned,  in 
full  possession  and  control  of  all  its  property, 
including  this  subvention,  the  mortgagor  had 
full  power  as  against  it  (the  mortgagee)  to 
make  or  suffer  any  lawful  transfer  of  this 
subvention,  this  right  to  receive  the  subsidy. 
Oilman  v.  IlL  &  Miss.  Telegraph  Co.,  91  IJ. 
S.  603,  23  L.  Ed.  405;  American  Bridge  Ca 
V.  Heldelbach,  94  U.  S.  798,  24  £>.  Ed.  144; 
Freedman's  Savings  ft  Trust  Co.  t.  Shepherd, 
127  U.  S.  494,  8  Sup.  Ct  12!50,  32  L.  Ed.  163; 
Zartman  v.  First  Nat  Bk.,  189  N.  X.  267, 
82  N.  E.  127, 12  I*  R.  A.  (N.  S.)  1083;  Smith 
T.  Eastern  Ry.  Co.,  124  Mass.  154. 

In  this  situation  of  affairs  in  1000  the  cor- 
poration was  enjoined  from  prosecuting  any 
business,  and  in  1903  all  its  assets,  so  far  as 
the  state  of  New  Jersey  controlled  such  as- 
sets, were  vested  In  a  receiver  appointed  by 
a  New  Jersey  court  Moreover,  this  receiv- 
er forthwith  proceeded  to  assert  his  right  as 
the  successor  of  the  Coro  ft  La  Vela  Rail- 
road ft  Improvement  Company  to  the  only 
assets  which  he  seems  to  have  noticed,  viz. 
the  right  under  the  subvention  from  Vene- 
zuela and  the  ascertainment  of  the  amount 
thereof  by  the  proper  Venezuelan  officers,  to 
recover  through  the  "mixed  commission" 
the  amount  of  the  subvention,  viz.  270,000 
bolivars.  The  receiver  asserted  his  own 
right  not  the  right  of  the  mortgagee,  whom 
he  disregarded,  and  the  mortgagee  and  the 
trandbolders  stood  by  and  allowed  him  to 
recover  and  receive  the  moneys. 

Who  in  1903  were  the  holders  of  this 
Issue  of  bonds  we  are  not  Informed.  Venezu- 
ela app^red  In  1007  as  the  owner  of  fonr- 
teen-fifteenths  of  them.  Whether  or  not 
some  time  during  a  period  of  eight  or  ten 
years  which  preceded  the  bankruptcy  pro- 
101A.-26 


oeedings  in  Venezuela  in  1907  the  valuable 
assets  of  the  railroad  were  seized  by  Venezu- 
ela or  some  other  party,  we  are  obliged  to 
infer  that  the  mortgagee  and  the  bondholders 
did  not  make  the  slightest  effort  to  assert 
any  rights  under  the  mortgage  in  any  way 
whatever.  The  entire  effort  to  enforce  the 
subventi<m  and  collect  the  amount  thereof 
through  the  "mixed  commission"  was  made 
by  the  New  Jersey  receiver  without  the 
slightest  aid  from  the  mortgagee  or  the  bond- 
holders. This  successful  operation  of  the 
receiver  to  recover  money  alleged  to  have 
been  mortgaged  for  more  than  the  amount 
thereof  seems  to  have  been  the  plainest  pos- 
sible assertion  of  a  right  in  the  receiver  in 
derogation  of  any  alleged  right  or  claim 
of  the  mortgagee.  Except  in  certain  cases, 
a  receiver  of  a  dissolved  or  insolvent  cor- 
poration administers  only  the  equity  of 
mortgaged  properties.  It  would  be  a  strange 
result  it  seems  to  me,  if  this  so-called  equi- 
table mortgagee  could  be  allowed  to  stand  by, 
assert  no  right  in  any  way  to  this  subvention, 
and  then  when  the  receiver  primarily  repre- 
senting the  general  creditors  had  effected  a 
recovery  of  the  amount  of  the  subvention, 
a  sum  amounting  to  over  (60,000,  come  Into 
a  court  of  equity  and  have  its  mortgage  es- 
tablished as  an  equitable  mortgage  upon  the 
$60,000  under  the  terms  of  the  mortgage  re- 
lating to  after-acquired  property. 

(6)  The  Republic  of  Venezuela  through  its 
representative  and  attorney,  as  we  have 
seen.  Instituted  the  proceedings  in  bankrupt- 
cy against  the  Coro  ft  La  Vela  Railroad  ft 
Improvement  Company  in  1907,  ignoring  the 
fiict  that  long  before  the  corporate  existence 
of  the  alleged  bankrupt  had  been  terminat- 
ed under  the  laws  of  New  Jersey,  under 
which  the  bankrupt  corporation  was  created, 
and  also  Ignoring  the  fact  that  the  New 
Jersey  Court  of  Chancery  had  placed  this 
New  Jersey  corporation  under  an  injunction 
restraining  It  from  doing  any  business,  and 
undertaking  under  the  statute  of  New  Jersey 
to  place  all  the  assets  of  said  corporation, 
wherever  sttnate,  in  the  possession  of  a  re- 
ceiver then  appointed.  In  the  petition  which 
the  Republic  of  Venezuela  filed  in  these  bank- 
rupt proceedings,  she  asserted  that  the  mort- 
gage to  the  Farmers'  Loan  ft  Trust  Company 
was  Invalid  as  to  property  situate  in  Venezu- 
ela, and  procured  an  adjudication  to  that 
effect  Reasons  may  be  surmised  why  Vene- 
zuela In  1907  and  1908,  being  the  bolder  of 
130  or  140  of  these  bonds,  preferred  to  have 
the  mortgage  declared  void,  and  the  Farmers' 
Loan  ft  Trust  Company  excluded  from  con- 
sideration, provided  the  bonds  themselves 
were  adjudged  valid  obligations  representing 
a  valid  debt  but  in  regard  to  this  matter 
the  evidence  la  unsatisfactory. 

[4]  The  point  to  be  brought  oat  is  that 
Venezuela  in  1897  and  1898,  in  the  most 
solemn  manner  in  her  own  court  asserted 
the  inralldity  of  this  mortgage  as  a  mortgage 
ot  property  situate  In  Venezuela,  and  pro- 


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cured  In  that  court  an  adjudication  to  that 
effect,  and  subsequently  received  as  a  general 
creditor  holding  140  of  the  mortgage  bonds 
the  great  bulk  of  the  proceeds  of  the  assets 
of  the  bankrupt  administered  In  the  Venezue- 
la court,  which  assets  were  described  in 
and  were  attempted  to  be  covered  by  the 
mortgage;  and  now,  having  secured  this  re- 
sult, Venezuela  comes  forward  In  the  Court 
of  Chancery  of  New  Jersey  and  seeks  to 
establish  the  validity  In  New  Jersey  of  this 
same  mortgage,  and  have  this  court  enforce 
the  mortgage  as  an  equitable  mortgage  cov- 
ering the  proceeds  of  this  subvention  as  aft- 
er-acquired property.  Of  course,  there  is  no 
inconsistency  in  the  claim  of  Venezuela  that 
this  mortgage  was  inoperative  upon  prop- 
erty In  Venezuela  under  Venezuelan  law,  but 
was  valid  and  operative  in  respect  of  prop- 
erty situate  in  New  Jersey  under  New  Jer- 
sey law.  The  Inconsistency,  however,  is 
made  manifest  when  we  consider  the  legal 
Bitus  of  the  right  of  the  Coro  &  La  Vela 
Railroad  &  Improvement  Company  to  receive 
this  subvention  of  270,000  bolivars  under 
the  supplemental  concession  made  by  Venezu- 
ela, in  pursoance  of  its  law  enacted  In  1896, 
a  year  after  the  mortgage  was  made.  The 
Coro  3e  La  Vela  Railroad  &  Improvement 
Company  was  transacting  its  business  as 
a  railroad  corpoitttion  wholly  in  the  state 
of  Venezuela.  The  Venezuelan  decree  of 
bankruptcy  declared  that  the  corporation 
had  its  de  facto  domicile  in  that  country, 
and  as  such  was  amenable  to  legal  proceed- 
ings, Including  bankrupt  proceedings  in  the 
Venezuelan  courts.  Is  it  not  plain  that  this 
right  under  the  supplemental  concession  of 
1S97  to  a  subsidy  from  the  state  of  Venezuela 
had  its  situs  as  property  in  that  state,  where 
all  money  due  under  its  terms  was  payable? 
The  right  to  receive  this  money  arose  under 
a  contract  which  was  made  between  parties 
domiciled  in  Venezuela,  and  which  was  to 
l>e  wholly  performed  in  Veneznela. 

It  seems  to  me  that  it  only  makes  con- 
fusion of  thought  to  consider  the  situs  of  this 
money  in  the  hands  of  the  New  Jersey  re- 
ceiver. This  money  was  never  mortgaged. 
This  money  represents  an  asset  of  the  in- 
solvent corporation  which  at  all  times  had  its 
situs  in  Venezuela.  The  government  of  the 
United  States  through  a  treaty  with  Venezu- 
ela procured  an  award  from  arbitrators  sit- 
ting in  Europe  for  the  payment  of  a  sum  of 
money  to  the  United  States  In  satisfaction  of 
the  original  claim  of  the  Coro  &  I..a  Vela 
Railroad  &  Improvement  Company,  which 
■was  established  and  "liquidated"  at  270,000 
bolivars  in  1898  by  the  officials  of  Venezuela 
acting  in  that  state.  The  mortgage  either 
covered  the  after-acquired  right  to  a  sub- 
sidy or  it  did  not  If  the  mortgage  became 
uquitably  extended  so  as  to  cover  this  right 
{<>  a  siib^dy,  it  must  have  covered  that 
right  when  such  right  had  its  situs  as  prop- 
«rty  exclusively  in  Venezuela.  If  when  the 
amount  due  under  the  sabvention  wag  lioui- 


datcU  the  obligalion  of  Venemda  to  pay  that 
amount  created  an  indebtedness,  it  still  re- 
mains that  the  mortgagor  "acquired"  this 
indebtedness  as  property  while  domiciled  In 
Venezuela;  such  indebtedness  being  payable 
in  Venezuelan  money  in  the  state  of  Venezuela 
and  by  the  sovereign  state  itself,  which  was 
and  is  located  permanently  witUn  its  ter- 
ritory. Notwithstanding  the  rules  which  in 
some  respects  are  conflicting  in  regard  to  the 
legal  situs  of  debts  for  various  purposes,  in 
my  judgment  this  indebtedness  of  Venezuela 
to  the  Coro  &  La  Vela  Railroad  &  Improve- 
ment Company  should  be  considered  for  the 
purposes  of  this  mortgage,  as  having  its 
situs  in  Venezuela.  Veneznela,  however,  pro- 
cured an  adjudication  in  her  court  that  the 
mortgage  was  void  in  Venezuela  as  to  all 
property  situate  in  that  state.  Such  adjudi- 
cation necessarily  Includes  the  proposition 
that  the  mortgage  was  void  as  to  this  in'debt- 
edness  under  the  subvention,  or,  to  state  the 
matter  otherwise,  that  under  the  laws  of 
Venezuela  this  mortgage  could  not  be  allow- 
ed any  force  or  effect  whatever  In  its  rela- 
tion either  to  the  subvention  or  the  liquidat- 
ed indebtedness  under  the  subvention,  both 
of  which  the  Coro  &  La  Vela  Railroad  & 
Improvement  Company  "acquired"  long  aft- 
er the  mortgage  was  made. 

The  fact  that  this  money  has  come  into 
the  possession  of  the  New  Jersey  receiver 
while  giving  the  New  Jersey  court  full  Ju- 
risdiction over  it  does  not  affect  its  relation 
to  the  mortgage  as  an  equitable  mortgage 
of  after-acqulri/d  property.  The  receiver 
might  be  a  resident  of  another  state,  or  even 
of  Venezuela.  Such  a  thing  is  legally  pos- 
sible. 

The  inconsistency  of  the  claim  of  Venezu- 
ela in  this  court  consists,  I  think,  in  the  fact 
that,  having  procured  in  her  own  court  a  de- 
cree that  this  mortgage  was  absolutely  void 
as  to  all  property  covered  by  it  which  was 
situate  in  Venezuela,  she  now  endeavors  to 
get  a  decree  from  this  court  precisely  to  the 
contrary.  It  is  true  counsel  for  Venezuela 
has  made  no  argument  and  presented  no 
theory  in  regard  to  the  situs  of  the  asset  of 
this  Insolvent  corporation  represented  by  the 
fund  in  the  receiver's  bands.  His  argument 
seems,  however,  to  assume  tliat  this  fund 
represents  property  acquired  by  the  mort- 
gagor after  the  mortgage  was  ^ven,  situate 
in  the  state  of  New  Jersey,  or,  at  any  rate, 
not  situate  in  Venezuela. 

It  has  not  been  argued  that  there  has  been 
any  ctiange  of  the  situs  of  the  original  after- 
acquired  subvention.  Until  this  New  Jersey 
corporation  was  dissolved  by  proclamation 
and  its  assets  were  vested  in  a  receiver,  and 
It  was  enjoined  from  acquiring  property  by 
the  decree  of  this  court,  there  certainly  was 
no  transfer  from  Venezuela  to  New  Jiersey 
or  any  other  state  of  the  situs  of  the  sub- 
vention under  the  supplemental  concession 
of  1887,  or  of  the  indebtedness  of  270,OOC 


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N.JJ 


BAIZ  T.  COBO  ft  I.,  y.  S.  &  IMPBOVBlfENT  CO. 


403 


twUvars  wbfch  was  ascertained  to  be  due 
under  the  subTentlon  in  1898.  Wben  under 
a  treaty  between  tbe  United  States  an'd  Ven- 
ezuela the  "mixed  commission"  awarded  the 
payment  of  the  270,000  bolirars  with  inter- 
est thereon  in  satisfaction  of  all  claims  under 
the  subTentlon,  such  payment  was  directed  to 
be  made  to  the  United  States  government, 
and  the  United  States  gOTemment  then  turn- 
ed over  the  money  to  the  New  Jersey  receiv- 
er. The  Coro  ft  La  Vela  Railroad  &  Improve- 
ment Company  never  "acquired"  this  money 
when  it  was  pafd  to  the  United  States  govern- 
ment or  when  It  was  transferred  to  tbe  New 
Jersey  receiver.  Tears  before  the  first  pay- 
ment by  Venezuela  on  account  of  the  award 
was  made  to  the  United  States  Government 
the  Coro  ft  La  Vela  Railroad  ft  Improvement 
Company  had  been  dissolved  by  proclama- 
tion, and  had  been  rendered  incapable  of  ac- 
quiring any  property,  and  a  receiver  in  New 
Jersey  of  all  its  assets  had  been  appointed. 
The  fact  that  in  tbe  award  the  Coro  &  La 
Vela  Railroad  &  Improvement  Company  Is 
mentioned  as  the  claimant  is  a  matter  of  no 
consequence.  If  at  that  time  the  right  to 
this  money  was  an  asset  within  the  Jurisdic- 
tion of  New  Jersey,  such  asset  was  vested 
In  the  receiver,  and  it  was  the  receiver  that 
appeared  as  the  actor  in  the  memorial  ad- 
dressed to  the  "mixed  commission"  present- 
ing the  claim  held  originally  by  the  Coro  ft 
La  Vela  Railroad  &  Improvement  Company. 

It  is  evident,  I  think,  that  Venezuela,  In 
order  to  sustain  her  claim  to  a  preferential 
payment  on  account  of  this  mortgage,  must 
necessarily  take  the  position  that  the  mort- 
gage equitably  covered  this  indebtedness  of 
270,000  bolivars,  the  situs  of  which  was  in 
Venezuela,  when  the  right  to  receive  it  was 
"acquircid"  by  the  Coro  ft  La  Vela  Railroad 
ft  Improvement  Company,  notwithstanding 
that  Venezuela  succeeded  in  procuring  a  de- 
cree In  her  own  court  that  the  mortgage  as 
to  all  property  situate  in  Venezuela  was  In- 
valid. 

[5]  (7)  I  state  tbe  conclusion  without  argu- 
ment and  with  a  mere  citation  of  a  few  au- 
thorities to  sustain  it  that  in  this  case  tbe 
claimant  (Venezuela)  is  obliged  in  equity  to 
put  In  hotchpot  the  dividend  which  she  re- 
ceived on  her  claim  through  the  bankruptcy 
proceedings  In  Venezuela.  The  other  cred- 
itors wbose  claims  have  been  presented  to 
tbe  receivers  In  this  case,  and  have  been  sus- 
tained, are  entitlekl  to  stand  on  a  level  with 
the  Republic  of  Venezuela.  Wharton  on  Con- 
flict of  Iaws,  I  798;  Phillips  v.  Hunter,  2  H. 
Black,  402;  Banco  de  Portugal  v.  Waddell, 
L.  R.  6  App.  Cases,  161 ;  In  re  Bonnaffe,  23 
N.  T,  169. 

This  rule  of  equity  and  equality,  which  ap- 


plies to  the  case  of  a  creditor  who  has  al- 
ready received  a  dividend  in  foreign  bank- 
ruptcy proceedings,  is  in  somewhat  clumsy 
language  declared  and  enacted  in  the  present 
Unlteid  States  bankrupt  act  (section  65  d). 

2.  The  appeal  of  the  Republic  of  Venezuela 
from  tbe  adjudication  of  the  receiver  allow- 
ing the  daim  of  the  Balz  estate  la  not  sustain- 
ed. I  do  not  recall  that  there  Is  any  ques- 
tion as  to  the  amount  of  that  claim.  If  there 
is  such  question  the  matter  can  be  determin- 
ed upon  settlement  of  the  decree.  The  proof 
establishes  the  claim  as  something  over  $70,- 
000. 

It  la  unnecessary  to  consider  the  status  of 
the  five  bonds  alleged  to  be  held  by  the  Balz 
estate  as  collateral  to  Its  claim,  because  of 
the  conclusion  which  I  have  reached  that 
the  bonds  are  not  equitable  liens  on  the  fund, 
but  only  represent  a  general  indebtedness. 
These  five  bon'ds  therefore  do  not  Increase 
tbe  claim  of  the  Balz  estate  amounting  to 
over  $70,000,  nor  do  they  give  to  the  Baiz. 
estate  any  greater  right  or  equity  than  that 
which  the  estate  holds  as  an  established  gen- 
eral creditor. 

8.  The  claim  of  Mr.  Bright  baa  received 
so  much  attention  from  court  and  counsel 
that  an  extensive  discussion  of  it  seems  quite 
unnecessary.  This  claim  was  the  subject  of  an 
oral  opinion  rendered  upon  its  first  presenta- 
tion some  time  ago.  My  conclusion  in  regard 
to  this  claim  has  virtually  been  announced^ 
and  the  grounds  therefor  have  been  indicated. 

I  may  say  briefly  that  this  whole  recovery 
from  the  Venezuelan  government  through  the- 
"mixed  commission"  is  the  product  of  the  in- 
dustry, skill,  and  zeal  of  this  Washington, 
lawyer,  Mr.  Bright,  who  originally  took  hold 
of  the  matter  upon  a  somewhat  indefinite, 
but  contingent,  retainer  under  an  arrangement 
with  Mr.  Baiz  In  his  lifetime,  acting  for  the 
Coro  &  La  Vela  Railroad  ft  Improvement 
Company.  To  ignore  Mr.  Brlght's  substan- 
tial claim  and  to  turn  over  to  these  creditors 
the  asset  which  he  recovered  under  the  cir- 
cumstances proved  would,  in  my  Judgment, 
be  a  flagrant  violation  of  the  plainest  prin- 
ciples of  equity  and  Justice.  If  Mr.  Bright 
had  not  succeeded  be  would  have  lost  the 
fruits  of  all  his  protracted  labors.  My  con- 
clusion is  that,  in  addition  to  the  sum  of 
$6,000  which  heretofore  was  allowed  to  him,, 
he  is  Justly  entitled  to  the  reduced  sum  which 
his  counsel  asked  for  on  bis  behalf,  viz. 
$».000. 

If  there  are  any  matters  overlooked  In  this 
somewhat  complex  mass  of  litigations  dis- 
posed of  by  this  memorandum,  they  may  be- 
brought  to  my  attention  upon  settlement  of 
the  decree  which  will  be  upon  notice. 


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404 


101  ATLANTIC  REPORTER 


(N.J. 


(90  K.  J.  Law,  S86) 

HOFF  T.  PUBLJO  SBRVIOB  RY.  CO. 

(Supreme  Onirt  of  New  Jersey.    JToiie  22, 
1917.) 

(Sylldbui  Jm  the  Court.) 

1.  CUbriebs  «=3284(1>— Gabkiaqb  or  Pabskn- 
OEII8 — Protection. 

A  carrier  owes  to  Its  passenger  the  duty  of 
protecting  him  from  the  violence  and  insults  of 
other  passengers  so  far  as  this  can  be  done  by 
the  exercise  of  a  high  degree  of  care,  and  it  will 
be  held  responsible  for  its  servant's  negligence  in 
this  particular  when  by  the  exercise  of  proper 
care  the  act  of  violence  might  have  been  foreseen 
and  prevented. 

[Ed.  Note.— For  other  caaea,  see  Carriers, 
Cent  Dig.  SS  1125,  1127.} 

2.  Cabriebs  €=>284(1)— CABRiAas  or  Passkn- 
OEBS — Protection. 

The  failure  of  the  servant  of  a  carrier  to  pre- 
vent the  commission  of  an  assault  upon  a  pas- 
senger by  another  passenger,  to  be  a  negligent 
failure  or  oIBission,  must  be  a  failure  or  omis- 
sion to  do  something  which  could  have  been 
done  by  the  servant ;  and  therefore  there  is  in- 
volved the  essential  ingredient  that  the  servant 
had  knowledge,  or  with  proper  care  could  have 
had  knowledge,  that  the  tort  was  imminent,  and 
that  he  had  that  knowledge,  or  had  the  opportu- 
nity to  acquire  it  sufficiently  long  in  advance  ot 
its  infliction  to  have  prevented  it  with  the  force 
at  his  command. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  §{  1125,  1127.] 

3.  Triai,  «=3l7S— Morion  tob  Dibbotkd  Vkb- 

OICT. 

In  passing  upon  a  motion  for  the  direction 
of  a  verdict,  the  court  cannot  weigh  the  evi- 
dence, but  is  bound  to  cmcede  to  be  true  all  evi- 
dence which  supports  the  view  of  the  party 
against  whom  the  motion  is  made,  and  to  give 
to  him  the  benefit  of  all  legitimate  inferences 
which  are  to  be  drawn  in  his  favor. 

(Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  H  401-103.] 

4.  Oabbiebs  «s»318(1)— Cabbiaob  or  Fassbn- 
GKBs— Protection — Neoligence. 

The  fact  that  a  passenger  was  intoxicated 
to  the  knowledge  of  the  carrier's  conductor,  the 
fact  that  he  had  repeatedly  insulted  a  woman 
passenger  in  the  presence  and  hearing  of  the 
conductor,  and  immediately  after  the  last  in- 
sulting remark  arose  from  his  seat  and  struck 
her  twice,  all  without  any  word  of  admonition 
or  protest  by  the  conductor  or  attempt  upon  his 
part  to  prevent  the  assault,  although  be  was 
throughout  within  arm's  reach  of  the  drunken 
man,  are  circumstances  from  which  the  jury 
could  properly  infer  that  with  proper  care  upon 
the  part  of  the  conductor  the  act  of  violence 
might  have  been  foreseen  and  prevented. 

[Ed.  Note. — For  other  cases,  see  Carriers, 
Ont.  Dig.  a  1307,  13U8.] 

Appeal  from  Circuit  Court,  Hudson  County. 

Action  by  Helen  Hoff  against  the  Public 
Service  Railway  (Company.  From  a  Judg- 
ment tor  plaintiff,  defendant  appeals.  AjC- 
flrmed. 

Argued  February  Term,  1917,  before  TREN- 
CHARD  and  BLACK,  JJ. 

Lefferts  S.  Hoffman  and  Leonard  J.  Tynan, 
both  of  Newark,  and  Oeorge  HI.  Blake,  of 
Jersey  <3ity,  for  appellant.  Alexander  Simp- 
son, of  Jersey  City,  for  respondent 


TRENOHARD,  J.  Thte  suit  was  brought 
by  the  plaintiff,  a  passenger  oa  a  trolley  car 
of  the  defoidant  company,  to  recover  for  in- 
juries sustained  by  ber  by  reason  of  the 
failure  to  protect  ber  as  a  passenger.  The 
plaintiff  bad  a  verdict  of  the  jury,  and  the 
defendant  appeals. 

The  defendant  complains  of  the  refusal 
of  the  trial  Judge  to  direct  a  verdict  In  its 
favor,  and  the  determination  of  the  propriety 
of  that  action  will  dispose  of  eveiy  qucetioa 
raised  and  argued. 

We  are  of  the  opinion  that  the  refusal 
to-  direct  a  Terdlct  was  rl«ht  At  the  time 
when  the  moticMi  -was  made,  it  was  open  to 
the  Jury  to  Infer  from  the  evidence,  if  they 
saw  fit,  the  following  matters  of  fact:  The 
plaintiff,  a  young  woman,  boarded  a  closed 
pay-as-you-enter  car  of  the  defendant  com- 
pany on  March  20,  1916,  at  First  street,  in 
Bayonne.  It  was  late  at  night,  and  there 
were  some  men  on  the  car  who  Iiad  been  to  a 
prize  fight  and  who  had  been  drinking.  As 
she  walked  into  the  car,  one  of  the  men  said, 
"Look  who  is  here!"  or  "Look  who  is  ami- 
ing!"  The  plaintiff  was  agitated,  and  walk- 
ed into  the  car  without  paying  her  fare^  and 
afterwards  got  up  and  Qald  her  fare.  As 
she  i>assed  the  man  the  second  time  he  again 
spoke  to  her,  saying,  "Hello  Chicken!"  and 
addressed  other  insulting  remarks  to  her  as 
she  was  jwying  her  fare.  When  the  car 
reached  Sixteenth  street  (where  she  wished 
to  alight)  as  she  passed  the  drunken  man  he 
said,  "Hey,  Chicken,  take  us  along."  The 
plaintiff  resulted  this  remark  and  turned  and 
safd  to  him,  "You  insulted  me  since  I  got  on 
this  car ;  If  yon  Insult  me  again  I  will  smack, 
your  face."  The  man  then  arose  from  bis 
seat  and  struck  her  twice,  once  in  the  breast 
and  once  In  the  face,  severely  injuring  ber. 
These  insulting  remarks  made  by  the  drunk* 
en  man  to  and  concerning  the  plaintiff  were 
all  in  the  presence  of  the  conductor  of  the  car 
(who  stood  within  two  feet  ot  the  man),  and 
were  heard  by  him,  but  he  uttered  not  a  word 
of  admonition  or  protest  and  made  no  ettoet 
to  protect  the  plaintiff  from  such  insults,  nor 
from  the  assault,  although  he  knew  that  the 
man  was  intoxicated. 

[1]  Now  the  rule  is  that  a  carrier  owee  to 
Its  passenger  the  duty  of  protecting  him  or 
ber  from  the  violence  and  insults  of  other 
passengers,  so  tar  as  this  can  be  done  by  the 
exercise  of  a  high  degree  of  care,  and  It  will 
be  held  responsible  for  its  servant's  negli- 
gence In  this  particular,  when,  by  the  exer- 
cise of  proper  care,  the  act  of  violence  might 
have  been  foreseen  and  prevented.  Exton  v. 
Central  R.  Co.,  62  N.  3.  Law,  7,  IS  Atl.  486, 
56  L.  R.  A.  608 ;  Id.,  63  N.  J.  Law,  356,  46 
Atl.  1099,  66  L.  R.  A.  608. 

It  is  unquestionably  the  right  of  a  carrier 
to  control  a  person  who  is  behaving  lu  an 
Improper  manner  on  its  conveyance,  or  to 
eject  a  person  who  refuses  to  desist  from  ob- 


8=9For  otber  cues  lee  same  topic  tod  KET-NUMBBR  In  all  Key-Numbered  DtgeBU  and  lodeze 


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FAIBVIBW  DEVELOPMBNT.  CO.  t.  FAT 


405 


Jectlonable  and  Indecent  conduct,  or  whose 
comlitlon  Is  such  as  to  render  his  presence  on 
the  conveyance  oSensiTe  or  dangerons  to  the 
reasonable  comfort  or  safety  of  other  passen- 
gers. And,  having  this  power  of  control  or 
ejectlmi,  it  is  <»ly  reasonable  to  hold  the 
carrier  liable  in  case  its  negligent  fallara  to 
eserdse  it  resolts  in  injury  to  a  possoiger. 
The  gist  of  the  action  for  Bucb  injuries  is 
the  negligence  of  the  carrier  or  its  officers  in 
charge  of  the  conveyance. 

[2]  The  negligent  omission  ot  the  servant 
of  a  carrier  to  prevent  the  commission  of  a 
tort  upon  a  passenger  by  fellow  passengers 
being,  as  we  have  stated,  the  basis  of  the  car- 
rier's liability  to  a  passenger  injured  by  such 
tort,  it  follows,  of  course,  that  the  failure  to 
prevent  the  commission  of  the  tort,  to  be  a 
negligent  failure  or  omission,  must  be  a  fail- 
ure or  omission  to  do  something  which  could 
have  been  done  by  the  servant;  and  therefore 
there  is  involved  the  essential  Ingredient  that 
the  servant  had  knowledge,  or  with  proper 
«ate  could  have  had  knowledge,  that  the  tort 
was  Imminent,  and  that  he  had  that  knowl- 
edge, or  had  the  c^portunlty  to  acquire  it, 
sufficiently  long  in  advance  of  its  infliction  to 
have  prevented  it  with  the  force  at  bis  com- 
mand. 

The  defendant  argues  that  the  evtdMice 
conclusively  shows:  (1)  That  the  man  who 
committed  the  assault  upon  the  plaintiff  was 
not  drunk;  and  (2)  that  its  conductor  had 
no  reason  to  anticipate  the  assault,  and 
hence  that  a  verdict  should  have  been  direct- 
ed in  Its  favor.  But  this  contention  is  not 
wdl  founded  in  fact 

[3,4]  In  passing  upon  the  motion  for  a  dl- 
rectlMi  of  a  verdict  for  the  defendant,  the 
conrt  cannot  weigh  the  evidence,  but  Is  bound 
to  concede  to  be  true  all  evidence  which  sup- 
ports the  view  of  the  plaintiff,  and  to  give  her 
the  benefit  of  all  legitimate  inferences  which 
are  to  be  drawn  in  her  favor.  So  considered, 
it  was  open  to  the  Jury  to  find  both  that  the 
passenger  who  assaulted  the  plaintiff  was 
drunic,  and  that  the  conductor  had  reason  to 
anticipate  the  assault  sufficiently  long  in  ad- 
vance to  have  prevented  It  Of  course,  the 
mere  fact  that  a  passenger  may  have  drunk 
to  excess  will  not,  in  every  case,  Justify  Ms 
expulsion  from  the  car.  It  Is  rather  the  de- 
gree of  intoxication,  and  its  effect  upon  the 
man,  and  the  fact  that  by  reason  of  the  in- 
toxication, he  Is  dangerous  or  annoying  to 
the  other  passengers,  that  gives  the  right  or 
Imposes  the  duty  of  expulsion.  In  the  pres- 
ent case  the  mere  fact  that  the  drunken  man 
was  not  ejected  is  not  a  controlling  circum- 
stance. But  the  fact  that  the  man  was  in- 
toxicated to  the  knowledge  of  the  conductor, 
the  fact  that  he  had  repeatedly  grossly  insult- 
ed the  plaintiff  in  the  presence  and  hearing 
of  the  conductor,  and  immediately  after  the 
last  insnltlng  remark,  arose  from  his  seat 
and  struck  the  plaintiff  twice,  all  without 


any  word  of  admonition  oi  protest  by  the 
conductor  or  attempt  upon  his  part  to  pre- 
vent the  assault  although  he  was  throughout 
within  arm's  reach  of  the  drunken  man,  are 
circumstances  from  which  the  Jury  could 
properly  infer  that  with  proper  care  upon 
the  part  of  the  conductor  the  act  of  violence 
might  have  been  foreseen,  and  prevented. 

Hie  Judgment  bdow  will  be  affirmed,  with 
costa. 

(90  N.  J.  lAW,  427) 
TAIRVIEW  DBVEJLOPMBNT  CO.  v.  PAX. 
rAIBVlEW  HEIGHTS  CEMETEBT  CO.  v. 

SAME. 

(Supreme  Conrt  of  New  Jersey.    June  6,  1917.) 

1.  Taxation     «=»208— Bxesiptions— Statotb 
—Construction. 

Exemptions  from  general  tax  burdens  of  the 
state  are  not  favored  by  the  law,  and  will  not 
be  construed  to  exist  unless  the  statute  invoked 
to  support  them  expresses  the  legislative  inten- 
tion in  clear  and  unmistakable  terma 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  i  343.] 

2.  Taxation     «=3245— EIzbhftiors— Statutb 

— CoNSTEUCnOW. 

tinder  Rural  Cemetery  Act  (P.  L.  1851,  p. 
254)  S  4,  as  amended  by  Laws  1883,  p.  123  (i 
Comp.  St  1910,  p.  373),  expressly  providing  that 
any  portion  of  the  property  of  a  cemetery  asso- 
ciation not  actually  set  apart  and  used  for  bur- 
ial purposes  shall  be  subject  to  taxation  until 
it  has  been  so  set  apart  and  used  for  actual  pur- 
poses of  burial,  etc.,  portions  of  the  proper^ 
owned  by  a  cemetery  association  and  by  a  corpo- 
ration holding  such  land  in  trust  for  a  cemetery 
association  remaining  practically  in  its  natural 
state  and  having  no  actual  use  or  reasonable 
contemplated  use  for  cemetery  purposes,  was 
subject  to  taxation. 

[Ed.  Note.— For  other  cases,  sea  Taxation, 
Cent  Dig.  |  415.] 

Two  writs  of  certiorari  by  the  Fairvlew 
Deverl(9)ment  C<Hnpany  and  the  Fairvlew 
Heights  Cemetery  Company  against  Thomas 
Fay,  collector,  removing  fissessments  and 
taxes  by  the  borough  of  Fairview.  Taxes  at- 
flrmed. 

Argued  February  term,  1917,  before 
SWAYZB,  MINTDBN,  and  KALISCH,  JJ. 

Weller  &  Lichtenstein,  of  Hoboken,  for 
prosecutors.  Edwards  &  Smith,  of  Jersey 
City,  for  defendant 

MINTUBN,  J.  Two  cases  Involving  a 
claim  of  exemption  from  taxation  are  pre- 
sented by  these  writs  In  the  first  Instance 
the  boron^  of  Fairview,  in  Bersen  county, 
levied  a  tax  on  the  assessed  value  of  the 
property  of  the  Fairview  Heights  Cemetery 
Company,  comprising  about  50  acres,  for  the 
year  1913.  The  prosecutor  is  organized  un- 
der the  cemetery  act  (C.  S.  p.  370),  and  owns 
and  manages  a  cemetery  comprising  about 
65  acres,  50  acres  of  which  are  not  in  use  for 
cemetery  purposes.  The  undeveloped  section 
remains  practically  in  Its  natural  state.  It 
was  assessed  and  Is  taxed  by  the  borough, 
from  which  assessment  the  prosecutor  ap- 


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pealed  to  ttie  county  board,  which  board  sus- 
tained the  assessment  and  tax.  The  Insist- 
ence of  the  prosecutor  is  that  the  entire  tract 
In  use  and  out  of  use  Is  exempt  from  taxa- 
tion. 

t1]  The  cemetery  acts  have  frequently  been 
before  this  court,  In  various  aspects  of  liti- 
gation, and  from  the  Tiews  expressed  as  the 
result  of  those  adjudications,  the  following 
principles  may  be  gleaned'  The  fundamental 
rule  pervading  all  exemptions  from  the  gen- 
eral tax  burdens  of  the  state  is  that  they  are 
not  favored  by  the  law,  and  will  not  be  ctm- 
Btrued  to  exist  unless  the  statute  Invoked  to 
support  them  expresses  the  legislative  inten- 
tion in  clear  and  unmlstalcable  terms.  Mau- 
soleum Builders  v.  State  Board,  etc.,  88  N. 
J  lAw,  692,  96  Atl.  494;  Cooper  Hospital  v. 
Camden,  70  N.  J  Law,  478,  67  Atl.  260;  Bose- 
dale  Cemetery  Co.  v.  Linden,  73  N.  J.  Law, 
421,  63  Ml.  904. 

[2]  In  enacting  legislation  of  this  general 
charactet  whose  main  and  fundamental  pur- 
pose ie  the  protection  under  proper  manage- 
ment of  the  bodies  of  the  dead,  it  is  not  rea- 
sonable to  assume  that  the  power  conceded 
by  the  Legislature  to  cemetery  associations, 
for  that  purpose,  is  so  comprehensive  in  scope 
as  to  enable  them  to  purchase  tracts  of  terri- 
tory, and  to  hold  them  unimproved  and  unde- 
veloped for  any  purpose,  out  of  the  taxable 
assets  of  township,  county,  and  state  asaess- 
ments.  If  such  a  construction  of  this  legis- 
lation were  to  be  admitted,  there  would  ap- 
pear to  be  no  limit  to  the  bomids  of  the  own- 
ership of  the  corporation,  within  the  terms 
prescril)ed  in  the  act,  except  the  financial 
carrying  capacity  of  the  corporation  Itself, 
and  the  following  case  involving  a  claim  for 
exemption  upon  this  ground  will  enable  one 
to  perceive  how  even  that  protective  limi- 
tation may  be  evaded  in  actual  practice. 

The  mere  organization  of  a  company,  un- 
der the  cemetery  acts,  and  the  purchase  of 
land  thereafter,  without  expenditure  to  im- 
prove or  develop  it,  but  the  mere  passive 
holding  of  the  land,  as  it  were  by  a  species 
of  mortmain,  is  not  enough  to  bring  the 
claim  for  exemption  within  the  language  and 
spirit  of  this  legislation.  Ownership  and  use 
seem  to  be  the  legislative  tests  upon  which  an 
exemption  from  taxation  of  this  character 
may  legally  be  based.  Section  4  of  the  rural 
cemetery  act  in  1883  was  amended  by  a  pro- 
viso reading  that  any  portion  of  the  property 
of  any  such  company  "not  actually  set  apart 
and  used  for  burial  purposes,  shall  be  subject 
to  taxation,"  etc.  L.  1883,  p.  123.  The 
amendment  of  1889  made  no  change  in  this 
feature  of  the  legislation.  P.  L.  1889,  p.  418. 
These  various  enactments  are  In  pari  mate- 
ria, and  must  be  considered  together  as  pre- 
senting a  cohesive  and  consistent  legislative 
scheme  declaratory  of  a  state  policy  of  set- 
ting aside,  by  a  separate  species  of  tenure, 
through  corporate  agencies,  sections  of  land, 
free  from  taxation,  when  such  lands  are  ac- 
tually in  use,  or  within  reasonable  cont«n- 


plation  of  being  used  for  the  purpose  declar- 
ed in  the  statute.  Mt  Pleasant  Cemetery  v. 
Newark  (Err.  &  App.)  98  Atl.  448 ;  Rosedale 
Cemetery  t.  Unden,  supra;  liausoleum 
Builders  v.  State  Board  (Err.  ft  App.)  lOO 
Atl.  236.  The  locos  In  quo  in  this  controver- 
sy presents  no  indicia  of  actual  use  or  of 
reasonably  contemplated  use,  within  the  stat' 
utory  purview,  whidi  will  enable  us  to  bring 
It  within  sudi  a  classification,  and  the  tax 
In  question  should  therefore  be  affirmed. 

The  second  writ  removes  an  assessment 
and  tax,  upon  26  acres  of  undeveloped  land, 
situated  on  the  Bergen  turnpike  and  owned 
by  the  Falrview  Development  Company,  a 
corporation  not  organized  nnder  the  cemetery 
acts,  but  organized  for  business  purposes  nn- 
der the  general  corporation  act  It  obtained 
title  to  the  locus  in  quo  in  1910,  by  a  con- 
veyance from  the  Fairvlew  Cemetery  CJompa- 
ny,  for  $1  and  other  valuable  considerations ; 
and  thereafter  an  agreement  was  executed 
between  the  parties  to  the  deed  setting  out 
the  true  consideration  of  the  conveyance 
($360,000),  and  a  covenant  was  entered  into 
with  the  cemetery  company  that  the  latter 
company  might  sell  burial  plots  from  the 
land  conveyed,  upon  certain  prescribed  terms, ' 
as  to  price  and  conditi<ma.  In  effect  the  in- 
strument constitutes  a  holding  agreement, 
by  which  the  title  to  the  locus  in  quo  Is  vest- 
ed In  the  devel<q;>ment  company,  subject  to 
certain  uses,  the  covenant  being  In  all  formal 
essentials  not  unlike  the  common-law  cove- 
nant to  stand  seised  to  uses  (4  Kent's  (Tom. 
p.  402) ;  the  purpose  apparently  being  to  vest 
In  the  development  company,  in  trust,  such 
lands  as  the  cemetery  company  could  not 
legally  hold  by  reason  of  the  limitation  con- 
tained in  the  cemetery  acts. 

The  land  in  question  is  part  of  40  acres 
lying  west  of  the  Bergen  turnpike,  and  eleven 
acres  of  meadow  land  lying  on  the  east  side 
thereof.  Nothing  has  been  done  to  Improve 
or  develop  this  acreage  for  cemetery  uses; 
and  It  lies  in  Its  natural  state.  Impressed  with 
a  cemetery  use  only,  so  far  as  the  trust  ex- 
pressed in  the  agreement  may  impose  that 
character  of  user  upon  it  The  sltuatioa 
thus  presented  in  principle  is  not  unlike  that 
presented  in  the  case  of  Mt  Pleasant  Ceme- 
tery V.  Newark  (Err.  &  App.)  08  AtL  448,  and 
the  recent  case  of  Mausoleum  Builders,  etc., 
V.  State  Board  (Err.  ft  App.)  100  AtL  236. 

We  do  not  deem  it  necessary  to  determine 
the  power  of  a  company,  formed  under  the 
general  corporation  act,  for  general  business 
purposes,  to  exercise  the  power  and  claim 
tlie  privileges  expressly  conferred  by  excep- 
tional legislation  upon  a  distinctive  species 
of  corporation,  created  for  the  purpose  of 
performing  a  quasi  public  function,  and  exist- 
ing specially  for  the  purpose  therein  prescrib- 
ed, and  for  no  other;  nor  do  we  deem  It  nec- 
essary to  determine  the  further  Inquiry  moot- 
ed In  the  briefs  of  counsel,  whether  In  such  a 
situation  the  lands  in  question  can  be  prop- 


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«.JJ 


K.  I.  DU  PONT  DE  NKMOURS  POWDER  00.  t.  SPOCIDIO 


407 


«rly  considered  as  bdng  b^d  for  cemetery 
uses,  within  the  meaning  and  pnrrlew  of  the 
<;emeter7  leglslatlm. 

It  must  suffice  to  decdare  as  we  have  done 
in  the  previous  instance,  and  for  the  rea- 
sons there  adranced,  that  the  locus  In  quo 
was  not  at  the  time  of  the  imposition  of  this 
tax  devoted  to  and  in  use  for  cemetery  pur- 
poses, and  for  that  reason  this  tax  also  must 
-be  affirmed. 

(88  N.  J.  Eki.  ZIO) 

DB  LUKACSEVICS  v.  DB  LUKACSBVICS 
(No.  40/759.) 

'(Goort  of  Chancery  of  New  Jersey.     June  29, 
1917.) 

DlVOBCZ    «=»2C6— WMT    of    SEQUTOTBATIOir— * 

AUMONT — Claims  of  CBEnrroBS. 
The  execution  of  writ  of  sequestration  in  a 
wife's  divorce  suit  places  in  custodia  legis  the 
property  of  defendant  husband  sequestered  to 
satisfy  or  compel  the  satisfaction  of  the  wife'l 
'Claims  for  alimony,  and  no  rlKhts  can  be  ac- 
<iuired  in  the  property  except  subject  to  the 
operation  of  the  writ,  the  lien  under  which  ex- 
tends to  alimony  due  at  the  time  of  issuance  and 
alimony  subsequently  accruing. 

[Ed.  Note. — ^Tor  other  cases,  see  Divorce, 
Cent  Dig.  S  741.] 

Suit  for  divorce  between  Adelaide  L.  De 
Lnkacsevics  and  Charles  De  Lukacsevics, 
wherein  judgment  creditors  of  defendant  hus- 
band and  the  holder  of  his  note  applied  to 
obtain  payment  of  their  respective  debts 
from  a  fund  in  the  possession  of  an  officer  of 
the  court  under  a  writ  of  sequestration.  Ap- 
plications denied. 

Edward  A.  Levy,  of  Passaic,  and  Frederick 
A.  Helsley,  of  Newark,  for  creditors,  Fred- 
erick S.  Taggart,  of  Westfleld,  for  petitioner. 

LANE,  V.  C.  These  are  applications  on  be- 
half of  certain  Judgment  creditors  of  the  de- 
fendant, Charles  De  Lukacsevics,  and  also  on 
behalf  of  the  bolder  of  a  note  made  by  de- 
fendant, upon  which  note  is  indorsed  a  state- 
ment that  certain  automobiles  hereinafter 
mentioned  are  held  as  collateral,  to  obtain 
payment  of  their  respective  debts  from  a  fund 
In  the  possession  of  an  officer  of  this  court 
under  a  writ  of  sequestration.  Pending  this 
suit  the  court  made  an  order  for  temporary 
alimony.  The  defendant  had  appeared.  The 
order  was  not  complied  with.  The  defendant 
left  tbe  stata  Thereupon  the  court,  under 
the  provisions  of  the  twenty-sixth  section  of 
tbe  divorce  act  of  1907  (2  Comp.  St.  1910,  p. 
2038),  issued  Its  writ  of  sequestration  under 
which  the  sheriff  took  in  his  possession  two 
automobiles  and  certain  other  personal  prop- 
«rty  of  the  defendant  and  entered  upon  real 
estate  of  tbe  defendant  and  sequestered  the 
rents  and  profits.  Thereafter  a  receiver  was 
appointed  who  superseded  the  sheriff,  and 
-who  now  has  in  his  possession  one  of  the 
automobiles  and  a  fund  of  some  $200,  the 
balance  of  the  proceeds  of  sale  of  the  other 
automobile,  tbe  remainder  of  the  money  hav- 


ing been  used  to  pay  alimony  to  tbe  petltioneir 
up  to  the  14th  of  April,  1917. 

Tbe  real  estate  Is  said  to  be  worth  In  ex- 
cess of  $10,000,  but  in  its  present  condition 
is  unrentable,  and  it  will  be  necessary  to 
espend  in  the  neighborhood  of  between  $400 
and  $500  for  taxes  and  repairs.  All  of  tbe 
Judgments  were  obtained  after  the  writ  of 
sequestration  had  been  issued  and  executed. 
Under  tbe  cases  of  Wood  v.  Price,  79  N.  J.  Eq. 
1, 81 AU.  1003,  affirmed  79  N.  J.  Eq,  620, 81  Ati. 
983,  88  U  R.  A.  (N.  S.)  772,  Ann.  Gas.  1918A, 
1210.  and  Close  v.  Close,  28  N.  J.  Eq.  472,  It 
seems  to  me  that  there  Is  no  doubt  but  that 
the  execution  of  a  writ  of  sequestration  in 
cases  of  this  nature  places  in  custodia  legls 
the  property  of  the  defendant  sequestered  to 
satisfy  or  cMnpel  the  satisfaction  of  the  claims 
of  the  wife  for  alimony,  and  that  no  rights 
can  be  acquired  in  the  property  except  subject 
to  the  operation  of  the  writ  The  lien  under 
the  writ  extends  not  only  to  alimony  due  at 
the  time  of  tbe  issuance  of  tbe  writ,  but 
alimony  which  may  subsequently  accrue^  I 
think  that  tbe  property  sequestered  is  no 
more  than  reasonably  necessary,  in  view  of 
the  circumstances,  to  retain  for  the  purpose 
of  satisfying  or  compelling  satisfaction  of  the 
claims  of  the  petitioner.  This  results  in  the 
application  of  the  creditors  being  denied.  So 
far  as  the  owner  of  the  note  Is  concerned,  be 
took  no  chattel  mortgage  or  other  Instrument 
which  might  be  recorded  evidencing  bis  Hen, 
nor  did  he  take  actual  or  constructive  posses- 
sion of  tbe  chattels,  so  that  the  lien  under 
the  writ  is  superior  to  bis  rights,  If  any  he 
ha& 


(90  N.  J.  Law,  438) 
B,  I.  DD  PONT  DB  NEMOURS  POWDER 
CO.  V.  SPOCIDIO. 

(Supreme  CJourt  of  New  Jersey.    June  28, 1917.) 

1.  Masteb  and  Servant  ®=»411— Workmen's 
Compensation  Act  —  lN.roBiBB  —  Fihdinus 
OP  Fact. 

On  certiorari  by  the  employer  to  review 
judgment  for  an  injured  servant  seeking  com- 
pensation under  the  Workmen's  O>mpensation 
Act  (P.  Ia  1913,  p.  802),  petitioner's  injuries, 
their  nature  and  extent,  held  sufficiently  to  ap- 
pear from  the  trial  judge's  findings  of  fact. 

2.  Masteb  and  Sebvant  (8=>412— Wobkmen's 
Compensation  Act— Aobeement  fob  Com- 
pensation— Question  of  Law  and  Fact. 

Whether  there  was  an  agreement  between 
an  employer  and  its  injured  employ^  to  make 
compensation  under  the  Workmen's  Compensa- 
tion Act  without  resort  to  the  court  of  common 
pleas  by  petition  was  a  mixed  question  of  law 
and  fact. 

3.  Masteb  and  Sebvant  <8=»419— WobKubn'S 
Compensation  Act  —  Aobkemkht  fob  Com- 
PENSATioN— Review. 

In  view  of  the  Workmen's  CV>mpenBation 
Act,  {  5,  providing  that  no  agreement  between 
the  parties  for  a  lesser  sum  than  that  which 
may  be  determined  by  the  judge  of  the  court  of 
common  pleas  to  be  due  shall  operate  as  a  bar 
to  the  determination  of  a  controversy  upon  its 
merits,  or  to  the  award  of  a  larger  sum,  where 
it  shall  be  determined  bv  the  judge  that  the 
amount  agreed  upon  is  less  than  the  injured 


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employes  or  Us  dependents  ar«  entitled  to  re- 
ceive, where  an  employer  and  its  injured  em- 
ployi  within  a  year  of  the  accident  agreed  as  to 
the  compensation  to  be  paid  the  employ^,  the 
latter  was  not  barred  from  filing  a  petition  at 
any  time  to  have  the  asreemeut  reviewed  by 
the  court  upon  its  merits;  the  clause  of  the 
statute  prescribing  the  one-year  limitation  peri- 
od in  which  a  petition  must  be  filed  or  an  agree- 
ment made  for  compensation  not  being  applica- 
ble to  the  situaticHi. 

Certiorari  to  Court  of  Common  Pleas,  Sa- 
lem County. 

Proceedings  for  compensatioii  under  the 
Workmen's  Compensation  Act  by  James 
Spoddlo,  opposed  by  the  El.  I.  Du  Pont  De 
Nemours  Powder  Company,  the  employer. 
On  certiorari  by  the  employer  to  review  the 
Judgment.     Judgment  alBrmed. 

Argued  November  Term,  1916,  before 
SWAYZB,  MINTURN,  and  KATJSOH,  JJ. 

J.  Fomian  Sinnickson,  of  Salem,  for  prose- 
cutor. Bergen  &  Richman,  of  Camden,  for 
respondent 

BCALISCH,  J.  The  question  to  be  deter- 
mined upon  this  review  is  whether  tbe  re- 
spondent, the  petitioner  In  the  court  below, 
filed  bis  petition  for  compensation  imder  the 
Workmen's  Compensation  Act  within  tbe 
time  required  by  law. 

The  petitioner  was  in  the  employ  of  the 
prosecutor.  On  the  25th  day  of  January, 
1915,  the  petitioner,  while  engaged  In  trans- 
porting cans  of  cotton  from  one  part  of  tbe 
respondent's  plant  to  another,  fell  and  broke 
his  left  arm  In  three  places  and  suffered  a 
permanent  injuiy. 

On  the  3d  of  March,  1916,  the  petitioner 
filed  his  petition  for  compensation.  On  tbe 
24th  of  March,  1916,  the  petitioner  by  leave 
of  the  court  filed  an  amended  petition.  In 
this  latter  petition  he  sets  forth  that  after 
the  accident  mentioned  he  and  the  prosecu- 
tor, agreed  upon  the  amount  of  comiiensa- 
tlon  due  to  the  petitioner  for  his  injuries; 
that  petitioner  was  informed  that  he  would 
receive  one-balf  of  his  wages  until  he  was 
able  to  return  to  work,  and  after  the  expira- 
tion of  15  days  from  the  date  of  the  accident 
the  prosecutor  paid  the  petitioner  $5.28  per 
week,  b^ng  50  per  cent,  of  his  weekly  wages, 
and  which  sum  it  paid  him  weekly  until  the 
5th  day  of  April,  1915,  when  he  was  told  by 
the  prosecutor's  physician  to  return  to  work, 
but  that  tbe  petitioner  was  not  physically 
able  to  return  to  work  at  the  time,  not  being 
entirely  cured  of  his  injuries  and  suffering 
from  a  permanent  disability  as  a  result  of 
his  injuries. 

The  petition  further  sets  forth  that  the 
prosecutor  paid  petitioner's  medical  expenses, 
indudlDg  an  operation  performed  on  peti- 
tioner's arm;  that  tbe  petitioner  Is  not  en- 
tirely cured  of  his  injuries  and  is  suffering 
from  a  permanent  disability  of  his  left  arm ; 
that  he  has  not  l>een  fully  compensated  un- 
der the  statute  for  his  injuries  received  from 
the  accident:   that  the  agreement  as  to  the 


compensation  made  between  him  and  the 
prosecutor  had  not  been  approved  of  by  the 
Judge  of  the  court  in  which  the  petition  is 
filed,  or  a  Judge  of  any  other  court  of  com- 
mon pleas,  in  any  county  of  this  state;  and 
that  a  dispute  has  arisen  between  the  prose- 
cutor and  petitioner  as  to  the  compensation 
due  tbe  latter. 

The  fact  that  the  petitioner's  injuries  were 
due  to  an  accident  arising  out  of  and  in  the 
course  of  his  employment  is  not  diq>ated  by 
the  prosecutor. 

Tbe  trial  Judge  found  that  as  a  result  of 
the  accident  the  petitioner  broke  Ids  left  arm 
in  three  places,  and  that  as  a  result  thereof 
the  petitioner  suffered  a  temporary  injury  to 
hU  arm  extending  from  the  time  he  was  In- 
jured (January  25,  1915)  until  the  5th  day  of 
July  1915,  and  that  there  is  a  permanent 
injury  to  the  whole  arm  of  10  per  cent ;  that 
after  the  petitioner  was  injured  he  was  first 
taken  to  the  office  of  Dr.  Lummls,  and  was 
there  treated  and  subsequently  to  the  Cooper 
Hospital  in  Camden;  that  the  petitioner  was 
told  to  go  to  the  plant  of  the  prosecutor  and 
he  would  be  paid  one-half  of  his  wages;  that 
petitioner  went  to  the  prosecutor's  plant  and 
receUed  the  sum  of  $5.28  pet  week  from  the 
prosecutor  until  the  7th  day  of  April,  1915, 
a  total  of  142.24;  that  the  petitioner  was 
then  given  a  note  by  Dr.  Lummis  advising 
htm  to  go  to  the  plant  for  work,  the  doctor 
stating  that  be  would  be  able  to  do  llg^t,  but 
no  heavy,  work;  that  the  petitioner  returned 
to  the  plant  and  did  work  from  the  13th  day 
of  April.  1915,  until  tbe  13th  day  of  May, 
1915,  when  be  was  discharged  from  the 
plant,  and  has  not  been  at  work  there  since. 

From  these  facts  tbe  trial  Judge  further 
finds  that  there  was  an  agreement  and  mon- 
ey actually  paid  to  the  petitioner  under  the 
agreemoit  to  the  amount  as  above  stated 
from  tbe  time  of  the  petitioner's  injury.  The 
trial  Judge  further  made  the  following  find- 
ings: That  the  prosecutor  is  entitled  to  a 
credit  on  the  amount  awarded  of  $5.28  a 
week  for  a  period  of  eight  weeks,  or  a  total 
credit  of  $42.24;  that  the  prosecutor  is  not 
entitled  to  a  credit  of  $43.25  paid  for  medical 
expenses  after  the  first  two  we^s,  nor  what 
was  paid  to  the  petitioner  for  the  time  he 
worked  from  April  16,  1916,  to  May  13,  1015, 
since  there  was  no  proof  of  any  agreement 
that  it  should  be  payment  under  the  act ;  that 
the  petitioner  is  entitled  to  compensation  at 
the  rate  of  $6.12  per  week  for  21  weeks  from 
the  8th  day  of  February,  1915  (being  2  weeks 
after  the  accident  happened),  for  tbe  tempo- 
rary injury  to  his  arm,  and  that  subsequent 
thereto  the  petitioner  is  oititled  to  the  sum 
of  $6.12  per  week  for  a  period  of  20  weeks 
for  the  permanent  injury  to  bis  arm. 

The  prosecutor  seeks  a  reversal  of  the 
Judgment  on  two  grounds:  (1)  That  the  pro- 
ceeding is  'barred  by  the  statute  of  Umita> 
tlons;  (2)  that  "the  court  of  common  pleas 
did  not  find  and  determine  the  facts  from 


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B.  L  DU  FONT  DE  NEMOUBS  FOWDJSR  GO.  ▼.  SPOCIDIO 


409 


whicdi  the  legaU^  of  tbe  award  by  aald  court 
can  be  determined." 

[1]  Taking  up  for  consideration  the  sec- 
ond point  made  by  the  prosecutor  flrst,  we 
ftink  that  by  the  facts  above  set  forth  it 
sufficiently  appears  what  the  injuries  to  tbe 
petitioner  were,  their  nature  and  extent 

As  to  the  position  taken  by  tbe  prosecutor 
that  the  proceeding  of  the  petitioner  is  bar- 
red by  the  statute  which  provides  that  In 
case  of  pers<Hial  Injuries  or  death  all  claims 
for  compensation  on  account  thereof  shall 
be  forever  barred  unless  within  one  year 
after  the  accident  the  parties  shall  have 
agreed  upon  the  compensation  payable  under 
the  act,  or  unless  within  one  year  after  the 
accident  one  of  the  parties  shall  have  filed  a 
petition  for  adjudication  of  compensation  as 
provided  by  the  act  (P.  L.  lOlS,  p.  314)  be- 
-canse  the  petition  in  the  present  case  was 
aied  after  a  year  had  elapsed  from  the  time 
of  the  accident,  we  find  to  I>e  untenable. 

It  Is  plain  that  the  statute  provides  three 
methods  which  may  be  pursued  within  the 
year  for  the  purpose  of  fixing  compensation 
to  be  paid  to  an  Injured  employft:  (1)  By  a 
petition  filed  by  the  injured  woAman;  (2) 
by  a  petition  filed  by  the  employer  of  the  in- 
jured workman;  (3)  by  an  agreement  be- 
tween employer  and  employe. 

In  the  present  case  there  was  testimony 
which  afforded  a  reasonable  basis  for  the 
finding  of  tbe  trial  judge  that  there  was  an 
agreement  for  compensation  to  be  paid  peti- 
tioner between  the  prosecutor  and  petitioner, 
under  the  statute;  for  there  was  testimony 
to  the  effect  that  tbe  prosecutor,  after  the 
lapse  of  two  weeks  from  the  time  of  the 
accident,  agreed  to  and  did  pay  to  the  peti- 
tioner periodically  one-half  of  tbe  petltlon- 
«r's  weekly  wages  for  some  time  until  the 
prosecutor  requested  the  petitioner  to  go  to 
work,  which  the  petitioner  did,  but  was  soon 
afterward  discharged.  It  also  appears  that 
the  prosecutor  paid  the  medical  expenses, 
amounting  to  $43,  Incurred  as  a  result  of  the 
petitioner's  Injuries. 

[2]  Whether  there  was  an  agreement  be- 
tween the  parties  to  make  compensation,  tm- 
der  the  statute,  without  resorting  to  the 
court  of  common  pleas,  by  petitlmt,  was  a 
mixed  question  of  law  and  fact,  and  we 
think  there  was  evidence  justifying  tbe  find- 
ing of  tbe  trial  judge  that  there  was  such  an 
agreement. 

It  Is  clear  from  the  plain  reading  of  the 
statute  that,  where  the  parties  agree  as  to 
tbe  compensation  to  be  made,  the  legislature 
contemplated  that  such  agreement  should  be 
wbolly  regulated  and  controlled  by  the  pro- 
vlsi<Nis  of  the  statute  both  as  to  the  duration 
of  time  and  the  amount  of  compensation  to 
be  periodically  paid. 

Paragraph  20  of  the  Workmen's  Compensa- 
tion Act  (P.  L.  1913,  p.  809)  expressly  pro- 
vides, Inter  alia,  that  no  agreement  between 
tbe  parties  for  a  lesser  sum  than  that  which 


may  be  determined  by  the  Judge  of  tbe  court 
of  common  pleas  to  be  due  shall  operate  as  a 
bar  to  the  determination  of  a  controversy 
upon  Its  merits,  or  to  the  award  of  a  larger 
sum,  where  It  shall  be  determined  by  the 
judge  that  tbe  amount  agreed  upon  is  less 
than  the  injured  employ^  or  bla  dQ)endents 
are  properly  entitled  to  receive. 

[9]  In  the  present  case  it  appears  that  the 
petitioner  was  earning  $12.24  per  week  at  the 
time  of  the  accident,  and  therefore  the  peti- 
tioner was  entitled  to  receive  $6.12  per  week 
instead  of  the  periodic  weekly  payment  of 
$6:28,  as  agreed  upon  between  the  parties. 
It  further  appears  that  under  the  statute 
tbe  petitioner  was  entitled  to  compensation 
for  temporary  injuries  for  the  period  of  21 
weeks,  and  for  permanent  injuries  for  20 
weeks,  and  that  all  the  prosecutor  paid  to  the 
petitioner  under  the  agreement  were  period- 
ical payments  of  $5.28  for  8  wedcs.  Thus  it 
becomes  manifest,  in  view  of  the  excerpt 
from  paragraph  20,  above  quoted,  that  tbe 
petitioner  was  not  barred  from  filing  a  peti- 
tion In  order  to  have  the  agreement  made 
between  the  parties  reviewed  by  the  court, 
uixm  its  merits  at  any  time. 

As  it  appears  In  the  present  case  that  there 
was  an  agreement  made  between  the  prose- 
cutor and  the  petitioner  as  to  the  compensa- 
tion to  be  paid  by  the  former  to  tbe  latter, 
the  one-year  limitation  clause  in  which  a 
petition  must  be  filed  or  an  agreement  made 
for  compensation  is  obviously  not  applicable 
to  the  situation  presented  her&  And  this  is 
also  equally  true  as  to  the  nonapplicabllity 
of  the  clause  of  paragraph  21  of  tbe  act  of 
1913,  which  provides  that  an  agreement  or 
award  of  compensation  may  be  modified  at 
any  time  by  a  subsequent  agreement,  or  at 
any  time  after  one  year  from  tbe  time  when 
the  same  became  operative,  on  the  ground 
that  tbe  incapacity  of  the  injured  has  subse- 
quently increased  or  diminished,  because  the 
petition  under  consideration  is  not  filed  on 
either  ground.  But  if  we  turn  to  paragraph 
18  of  the  act,  we  find  that  provision  is  made 
by  it  for  filing  a  petition  in  case  of  a  dis- 
pute or  failure  to  agree  upon  a  dalm  for 
compensation  between  employer  and  employe, 
etc.,  and  that  either  party  may  submit  Uie 
claim,  both  as  to  questions  of  fact,  eta  Para- 
graph 20  points  out  in  general  terms  what 
the  petition  shall  set  forth  in  case  of  a  dis- 
pute. 

We  cannot  be  led  to  believe  that  it  was 
the  purpose  of  the  Legislature  to  put  agree- 
ments entered  into  within  the  year  between 
employer  and  employe  as  to  the  compensation 
to  be  paid  upon  a  less  secure  footing  than  an 
award  made  ui)on  a  petition  filed  within  the 
year.  One  of  the  objects  of  the  act  is  to 
secure  to  the  parties  an  inexpensive  method 
of  procedure.  Of  course,  an  agreement  be- 
tween employer  and  employe  involves  no  ex- 
pense whatever  and  saves  to  the  employer 
the  expense  of  a  hearing,  etc.     If  In  the 


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101  ATIiANTIG  KBPOaTDB 


(M.J. 


present  case  eltber  party  bad  filed  a  petition 
within  the  year,  and  the  court  had  made  an 
award  of  compensation,  there  could  not  be 
the  slightest  doubt  nnder  the  express  lan- 
guage of  tJie  statute  that  either  party  would 
have  the  right  in  case  a  dispute  arose  re- 
garding the  compensation,  etc.,  to  file  a  peti- 
tion after  the  expiration  of  the  year.  The 
statute  has  put  the  agreement  between  em- 
ployer and  employe  on  the  same  plane  as  on 
award  made  by  the  court  upon  petition,  aft- 
er a  hearing,  etc.  And  this  course  was  mani- 
festly necessary  in  order  to  prevent  one  of 
the  prime  objects  of  the  act  from  being 
frustrated. 

For  it  is  obvious  that,  if  the  argumoit 
made  by  counsel  for  the  prosecutor  should 
prevail,  then  in  a  case  where  an  employe  is 
entitled  to  compensation  for  a  period  ex- 
tending beyond  62  weeks,  and  enters  into  an 
agreement  with  his  employer,  as  he  may  un- 
der the  statute,  then  if  at  the  end  of  the 
year,  after  the  last  payment  due  for  the 
year  has  been  paid,  the  employer  should 
choose  to  discontinue  any  further  payments, 
the  employe  would  be  remediless  nnder  the 
statute.  We  cannot  give  our  sanction  to 
such  a  construction  without  violating  the 
plain  language  and  spirit  of  the  act  and  ex- 
tinguishing one  of  its  vital  features. 

The  Judgment  will  be  affirmed,  with  costs. 


(18  N.  J.  Bq.  41) 

WIEBKE  V.  DB  WYNGAERT.    (No.  41/169.) 

(Oonrt  of  Chancery  of  New  Jersey.     July  6, 
1917.) 

1.  MOKTOAOES   ®=»56JX9)   —  FOBECLOSXntX   BT 

Action— Conclusiveness  of  Judgment. 
A  mortgagor's  purchaser  who  was  defendant 
in  foreclosure  suit  was  concluded  by  the  decree 
therein  in  a  suit  to  recover  deficiency,  and  can- 
not question  amount  decreed  to  have  been  due, 
but  could  show  that  he  was  not  liable  for  the  de- 
ficiency. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent.  Dig.  §§  1607,  1608.] 

2.  MoRTQAOEs  ®=»561— Surr  for  Deficiknct 
— SurriciENCT  op  Answer— Fraud. 

In  suit  for  deficiency  after  foreclosure,  the 
mortgagor's  purchaser  should  have  get  forth  in 
his  answer  the  fraudulent  representations  in 
taking  the  mortgaged  property,  which  he  relied 
on,  showing  what  the  representations  were,  who 
made  them,  and  by  what  authority. 

[Ed.   Note, — For  other  cases,  see  Mortgages, 
Cent.  Dig.  {}  1609-1621.] 

3.  Fraud  ®=p10  —  Misrepresentations  bt 
Agent— Sale  or  Mortgaged  Property. 

If  the  only  representation  was  the  opinion  or 
unauthorized  statement  of  a  corporation's  agent 
as  to  legal  effect  of  writing  which  defendant 
signed  in  purchasing  mortgaged  property  from 
the  corporation,  this  was  not  a  fraudnlent  repre- 
sentation by  the  company. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent. 
Dig.  I  11.] 

4.  Mortgaqeb  ®=»561— Suit  for  DEnciENCT 
—  Necessity  of  Pleading  Separate  Re- 
leases. 

In  a  suit  for  deficiency  after  mortgage  fore- 
doBure,  the  mortgagor's  purchaser  should  have 


stated  In  his  answer  that  he  relied  on  two  sepa- 
rate releases  given  at  separate  times. 

[£:d.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  §§  1609-1621.] 

6.  Mortgages  €=»561— Suit  for  DEFicneNct' 
—  Dividing  Anbwkb  into  Separate  Db- 

FENSES. 

In  a  suit  for  deficiency  after  mortgage  fore- 
closure, dividing  of  the  answer  into  separate  de- 
fenses like  separate  pleas  at  law  is  not  warrant- 
ed by  Chancery  Act  of  1915  (Act  March  SO,  1915 
[P.  L.  p.  194])  I  49,  providing  that  when  several 
causes  of  action  are  stated  in  the  bill,  the  an- 
swer must  refer  each  defense  to  the  cause  of  ac- 
tion to  which  it  is  pleaded. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent  Dig.  {{  1609-1621.] 

Suit  by  Friedrich  Wlebke  agednst  Joseph 
E.  De  Wyngaert  for  deficiency  after  mort- 
gage foreclosure.  Application  to  strike  out 
parts  of  answer.  Objectionable  paragraphs 
stricken  out,  and  defendant  given  10  days 
In  which  to  file  further  answer. 

Hugo  Woemer,  of  Newark,  for  the  motloii. 
<3eorge  £.  Clymer,  of  Newark,  <vposed. 

STEVENS,  V.  0.  [1]  This  is  an  appUca- 
tion  to  strike  oat  parts  of  an  answer.  The 
situation  is  this:  The  King-Marsac  Company 
mortgaged  to  complainant,  and  then  sold  the 
mortgaged  premises  to  defendant,  who  Is  al- 
leged to  have  assumed  payment  of  the  mort- 
gage. Complainant  foreclosed.  The  decree 
adjudged  $2,030  to  be  due  on  the  mortgage 
debt  There  was  a  sale  on  execution  from 
which  $500  was  realized.  Complainant  now 
sues  for  the  deficiency.  His  right  so  to  sue 
was  adjudged  on  the  application  to  strike  out 
the  bilL  The  defendant,  who  as  owner  was 
defendant  in  the  former  suit,  is  concluded 
by  the  decree  therein,  as  far  as  the  decree 
extends.  He  cannot  question  the  amount 
decreed  to  have  been  due,  but  he  is  not 
concluded  from  showing  tliat  he  is  not  liable 
for  the  deficiency. 

In  view  of  the  former  adjudications  the 
so-called  first  defense  Is  stricken  out,  and 
also  paragraphs  1,  2  and  10  of  the  second 
defense. 

Paragraph  S  is  ambiguous.  The  denial 
may  relate  to  the  fact  of  acceptance  or  to 
the  written  indorsement. 

[2, 3]  It  is  an  elementary  rale  of  pleadins 
that  if  defendant  answers  he  must  answer 
fully.  This  rule  has  not  been  observed  in 
the  so-called  fourth  defense.  The  fraudulent 
representations  relied  on  should  have  been 
set  forth  if  they  were  other  than  the  state- 
ment that  the  ofllcers  and  agents  of  the  cor- 
poration represented  to  the  defendant  that 
he  would  not  be  liable  on  his  assumption  un- 
less he  was  the  owner  of  the  premises  at  the 
date  of  the  maturity  of  the  mortgage.  The 
answer  should  have  stated  what  the  repre- 
sentations were,  who  made  them,  and  by 
what  authority.  If  the  only  misrepresenta- 
tion was  the  opinion  or  unauthorized  state- 
ment of  some  agent  of  the  company  as  to 
the  legal   effect  of  the  writing  whldi  de- 


4ts»Vor  oUrar  omm  m«  (am*  toplo  asd  KBT-NVMBBR  Is  sU  Key-Numberad  DlgasU  sad  IndazM 


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FISHER  T.  T.  W.  ORIFFITH  BEALTT  00. 


4U 


fendant  signed,  that  was  not  a  frandnlent 
representation  made  by  the  company. 

[4]  Paragraph  1  of  the  third  defense  and 
the  fifth  defense  are  to  some  extent  repeti- 
tions. The  second  is  broader  than  the  first. 
If  defendant  relies  npon  two  separate  re- 
leasee given  at  different  times,  be  should 
have  so  stated.  Paragraph  1  should  be 
stricken  out,  and  the  so-called  fifth  defense 
may  he  amplified  to  correspond  to  the  fact 

[S]  I  know  of  no  authority  for  dividing 
tbe  answer  into  separate  defenses  like  sep- 
arate pleas  at  law,  as  defendant  has  done 
In  this  case.  It  can  only  lead  to  repetition 
and  prolixity,  and  la  not  warranted  by  sec- 
tion 49  of  the  Chancery  Act  of  1916. 

nte  objectionable  paragraphs  will  be 
stricken  out,  and  the  defendant  given  10  days 
in  which  to  file  a  further  answer. 


rss  N.  J.  Bq.  tot) 

FISHER  V.  T.  W.  GRIFFITH  REALTT  CO. 
et  al.    (No.  41/282.) 

(Court  of  Chancery  of  New  Jersey.     June  23, 
1917.) 

Injunction  9=3l28— Restbainino  Bbkach  oi 
Peopebtt  Owneb's  Resteictivk  Aorezuent 

— SUFFICIENCT   or   EVIDENCE. 

In  a  suit  to  prevent  erection  of  an  apart- 
ment honse  in  Tiolation  of  a  restrictive  bnilding 
agreement  entered  into  by  property  owners,  evi- 
dence held  insufficient  to  warrant  relief,  the 
character  of  the  locality  having  greatly  changed 
since  the  execution  of  the  agreement,  so  as  to 
render  it  apparent  that  buUdings  of  the  class 
contemplated  thereby  would  not  be  built  upon 
tbe  land,  and  several  buildings  having  already 
been  erected  thereon  contrary  to  the  intent  of 
the  agreement,  making  enforcement  inequitable, 
[Ed.  Note. — For  other  cases,  see  Injunction, 
Cent  Dig.  i  278.] 

Bill  by  Jacob  W.  Fisher  against  the  T.  W. 
GrtSth  Realty  Company,  and  another.  De- 
cree dismissing  bill. 

Edgar  H.  Pinneo,  of  Newark,  for  com- 
plainant Saul  Cohn,  of  Newark,  for  defend- 
ants. 

lANE,  V.  C.  The  bill  is  filed  by  the  owner 
of  a  piece  of  property  on  the  westerly  side 
of  TJucoln  avenue  In  the  city  of  Newark 
between  El  wood  and  Delavan  avenues  to  pre- 
vent the  erection  of  an  apartment  house  upon 
tlie  southwesterly  corner  of  Elwood  and  Del- 
avan avenue,  a  point  distant  from  complain- 
ant's house,  exclusive  of  the  width  of  Dela- 
van avemue,  of  lOS'/jo  feet  The  right  of 
complainant  is  based  upon  an  agreement  en- 
tered into  on  or  about  the  1st  of  February, 
1S94,  between  the  then  owners  of  the  prop- 
erty extending  from  a  point  1(X)  feet  south 
of  EHwood  avenue  on  the  westerly  side  of 
Lincoln  avenue  to  a  point  200  feet  south  of 
Delavan  avenue  and  extending  for  a  depth 
of  200  feet  restricting  such  property  to  use 
only  for  the  erection  of  private  residences. 
The  agreement  referred  to  was  without  con- 
sideration other  than  mutual  promises.    For 


the  purposes  of  these  condlaslons  I  have  de- 
termined to  adopt  tbe  construction  put  upon 
the  agrement  by  Vice  Chancellor  Howell  in 
a  memorandum  handed  down  by  him  upon 
the  application  for  preliminary  injunction, 
which  construction  is  to  the  effect  that  tbe 
agreement  as  entered  into  would  prevent  tbe 
erection  of  the  structure  proposed  by  the 
defendants.  The  complainant  acquired  his 
title  by  deed  from  Mary  Ella  Eagles,  dated 
March  27,  1909.  Mrs.  Eagles  and  her  hus- 
band, who  owned  the  property  in  1894,  wene 
parties  to  the  agreement  providing  for  tbe 
restrictions.  The  street  next  westerly  to 
Lincoln  avenue  Is  Summer  avenue.  Ori^nal> 
ly  the  restricted  property,  or  most  of  it,  had 
been  owned  by  what  is  now  the  Phillips  es- 
tate. The  Phillips  homestead  is  on  the  plot 
a  portion  of  whldi  Is  now  sought  to  be  used 
for  apartment  house  purposes.  The  estate 
also  owned  property  on  the  easterly  side  of 
Summer  avenue,  and  at  or  about  the  date  the 
agreement  was  entered  into  between  the 
property  owners  on  the  westerly  side  of  Lin- 
coln avenue  a  similar  agreement  was  entered 
into  by  the  property  owners  on  the  easterly 
side  of  Summer  avenue,  among  whom  was 
Mrs.  Eagles,  the  predecessor  in  title  of  the 
complainant.  At  the  time  the  respective 
agreements  were  entered  into  the  property 
In  the  immediate  neighborhood  was  develop- 
ed in  substantially  the  same  manner.  From 
Chester  avenue^  the  street  next  to  Delavan 
southerly,  to  Elwood  avenue,  on  the  westerly 
side  of  Lincoln  avenue,  there  were  either 
private  residences  or  vacant  lots.  The  build- 
ings were  substantial,  and  by  that  I  mean 
structures  costing  in  the  neighborhood  of 
from  110,000  to  $15,000,  and  requiring  the 
outlay  of  considerable  money  each  year  to 
properly  maintain.  The  remaining  property 
in  the  block  bounded  by  Elwood,  Summer, 
Delavan,  and  Lincoln  was  undeveloped.  On 
the  easterly  side  of  Lincoln  avenue  from 
Chester  to  Elwood  there  were  a  number  of 
private  dwellings  which  had  been  built  for 
some  time.  These  dwellings,  while  not  as 
substantial  as  those  on  the  westerly  side, 
yet  housed  persons  who  had  been  in  the 
neighborhood  for  years,  and  offered  no  ob- 
stacle to  the  consummation  of  the  plan  which 
I  think  those  who  entered  into  the  restrictive 
agreement  had  in  mind.  Nowhere  on  the  re- 
stricted area  or  in  the  neighborhood  were 
there  two-family  houses  or  apartments.  The 
neighborhood  was  not  only  strictly  residen- 
tial in  the  sense  that  almost  all  who  lived 
therein  owned  their  own  houses,  but  reslden. 
tlal  in  the  sense  that  the  houses  erected 
might  be  termed  "residences"  in  contradis- 
tinction to  "dwellings."  Considerable  of  the 
land  on  the  easterly  side  of  LLncoln  avenue 
was  undeveloped. 

There  is  no  doubt  in  my  mind  but  that  the 
purpose  of  the  parties  to  the  agreement  of 
1894  was  to  keep  the  neighborhood  strictly 


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101  ATLilimC  REPORTER 


(N.J, 


residential,  a  neighborhood  In  wblch  a  person 
who  could  afford  to  invest  anywhere  from 
$10,000  to  $15,000  in  a  residence,  and  who 
could  afford  to  ke^  up  such  a  residence, 
would  be  glad  to  live  Whether  that  hope 
and  anticipation  would  be  achieved  or  not 
depended,  of  course,  upon  whether  the  unde- 
veloped property  and  the  property  unrestrict- 
ed in  the  Immediate  neighborhood  should  be 
developed  up<»  a  corresponding  scale.  The 
restricted  area  now  under  consideration  com- 
prised only  a  comparatively  short  distance 
on  one  side  of  a  street  It  is  apparent,  of 
course,  that  if  the  other  side  of  the  street 
facing  the  restricted  area  should  be  develop- 
ed in  a  manner  not  consistent  with  the  plan 
of  those  entering  into  the  agreement,  the 
purpose  of  the  agreement  would  fail.  So 
also  if  the  property  on  the  side  streets,  Del- 
avan  and  Elwood,  or  on  the  street  in  the 
rear.  Summer,  should  be  developed  in  a  man- 
ner not  consistent  with  the  plan,  this  would 
mean  its  failure. 

That  the  parties,  at  the  time,  realized  that 
It  was  necessary  for  the  success  of  the  plan 
that  the  easterly  side  of  Summer  avenue 
should  be  restricted  I  think  Is  indicated  by 
the  fact  that  similar  restrictions  were  entered 
into  by  the  owners  on  that  street  To  these 
restrictions,  as  I  have  above  stated,  Mrs. 
Bagles,  the  predecessor  in  title  of  tlie  com- 
plainant, was  a  party.  I  might  say  that 
originally  the  Phillips  estate  owned  the  en- 
tire block  bounded  by  Summer,  Delavan,  Lin- 
coln, and  ElwoQid  avenues,  approximately  one- 
half  of  the  block  bounded  by  Summer,  Ches- 
ter, Woodside,  and  Elwood  avenues,  Wood- 
side  being  the  street  next  westerly  to  Sum- 
mer, approximately  one-half  the  block  bound- 
ed by  Mt  Prospect,  Elwood,  Woodside,  and 
Chester  avenues,  Mt  Prospect  being  the  street 
next  westerly  to  Woodside,  and  also  a  large 
portion  of  the  block  bounded  by  Lincoln, 
Delavan,  Summer,  and  Chester  avenues;  it 
also  owned  six  lots  north  of  Elwood  opposite 
the  block  between  Woodside  and  Summer. 
Conceding  that  the  restrictions  under  discus- 
sion would  prevent  the  erection  of  the  pro- 
posed structure  of  the  defendants,  the  ques- 
tion is  whether  or  not  the  neighborhood  has 
so  changed  as  to  make  it  inequitable  for  this 
court  to  enforce  the  provisions  of  the  agree- 
ment   I  think  It  has. 

If'acing  complainant's  house  there  liave 
been  erected  on  the  northeast  comer  of 
Delavan  and  Lincoln  avenues  2  two-family 
houses.  The  remainder  of  the  easterly  side 
of  the  street  is  built  up  in  approximately 
21  one-family  bouses.  These  houses,  however, 
are  not  comparable  in  any  respect  with  those 
touilt  upon  the  westerly  side  of  the  street 
While  they  are  private  dwellings,  each  of 
them  covers  practically  an  entire  lot,  this 
with  few  exceptions,  and  they  are  of  much 
cheaper  construction  than  those  which  ap- 
parently were  contemplated  by  the  parties 
to  the  agreement.  The  street  next  easterly  to 
Lincoln  avenue  is  Washington,  and  between 


Delavan  and  Elwood  It  has  developed  Into 
a  business  section  with  some  two-family 
houses  and  dwellings.  Some  of  the  dwellings 
on  the  easterly  aide  of  Linccdn  avenue,  be- 
tween Delavan  and  £!lwood,  are  houses  which 
have  been  removed  from  the  westerly  side  of 
Washington.  The  easterly  side  of  Summer 
avenue,  which  is  the  westerly  boundary  of 
the  block  in  which  complainant's  house  is 
situate,  is  buUt  up  substantially  in  two-famUy 
houses.  There  are  10  two-family  houses  and 
9  single  houses,  exdnding  the  dwelling  on 
the  southeasterly  comer  of  Summer  avenue 
and  Elwood,  and  the  dwellings  are  of  the 
class  that  I  have  described  as  having  been 
built  on  the  easterly  side  of  Lincoln  avenue. 
On  the  easterly  side  of  Summer  avenue,  ex- 
tending from  the  southeasterly  comer  of  Sum- 
mer and  Delavan,  and  on  the  property  for- 
merly of  the  Phillips  estate,  there  have  been 
erected  a  row  of  houses,  8  of  which  are  two- 
famUy  and  1  of  which  is  three-family.  On 
the  easterly  side  of  lincoln  avenue  south  of 
Delavan  there  are  a  numlier  of  private  dwell- 
ings of  the  character  that  I  have  described  as 
having  been  erected  on  the  easterly  side  of 
Lincoln  between  Delavan  and  Elwood,  and 
there  are  also  2  two-family  bouses  between 
Delavan  and  Chester.  An  apartment  house 
has  been  built  on  one  of  the  comers  oS  Sum- 
mer avenue  and  Delavan,  -I  think  on  the 
southwest  comer.  Two  apartment  bouses 
tiave  been  built  on  the  northerly  side  of  Dela- 
van avenue  between  Summer  and  Lincoln, 
and  these  abut  in  the  rear  ui)on  complain- 
ant's property. 

On  the  restricted  territory  it  Is  conceded 
that  there  has  been  built  on  the  southerly 
side  of  Delavan  avenue,  opposite  the  apart- 
ment houses  last  referred  to,  at  least  1  two- 
family  bouse.  I  Qnd  from  the  testimony  that 
all  3  two-family  houses  on  the  southerly 
side  of  Delavan  avenue  are  within  the  re- 
stricted territory.  These  two-family  houses, 
while  around  the  comer  from  the  complain- 
ant, are  but  a  comparatively  short  distance 
from  him.  On  the  westerly  side  of  Lincoln 
avenue,  two  doors  from  the  complainant, 
there  have  been  erected  5  houses  which  in  the 
testimony  have  been  called  duplex  or  double, 
in  contradistinction  to  two-family.  Each 
house  has  one  roof,  one  set  of  outside  walls, 
a  partition  in  the  middle,  so  that  it  may  be 
used  for  two  families.  Whether  they  may  be 
called  technically  private  dwellings  or  not,  I 
think  unquestionably  their  erection  was  a 
violation  of  the  spirit  of  the  restrictive  agree- 
ment. They  are  not  in  accordance  in  any 
wise  with  the  plan  of  the  parties  to  that 
agreement,  but  are  rather  In  harmony  with 
the  present  development  of  the  territory  Id 
the  immediate  vicinity. 

A  survey  of  the  territory  in  the  vldnlty 
Indicates  clearly  that  it  has  grown  Into  prin< 
cipally  a  place  for  two-famUy  and  apartment 
houses  and  small  dwellings.  On  the  north- 
easterly corner  of  Washington  avenue  and 
Delavan  a  block  awajr  from  complainant's 


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DEPABTMKNT  OF  HEALTH  v.  MOKHEIT 


413 


house,  la  a  23-faiiiil7  aixirtment  bouse;  abont 
a  quarter  way  down  tbe  block,  on  tbe  easter- 
ly side  of  Washington  avenue,  between  Del- 
avan  and  Chester,  approximately  two  blocks 
from  c(»nplalnant'8  house,  Is  a  large  apart- 
ment house.  The  testimony  taken  before  me 
demonstrates  that  the  proi)erty  within  the 
restricted  area  Is  no  longer  salable  for  res- 
idential purposes.  Two  witnesses,  one  of 
whom  was  Alfred  S.  Skinner,  Esq.,  who  own- 
ed the  property  on  the  northwesterly  comer 
of  Idncoln  avenue  and  Delavan,  and  was  a 
party  to  the  agreement,  testified  that  when 
they  came  to  dispose  of  their  houses  they 
could  do  so  only  at  great  sacrifice.  They  and 
several  other  witnesses  testified  generally  to 
the  change  in  tbe  neighborhood,  attributing 
It  to  the  construction  of  the  car  barns,  the  lu- 
flux  of  small  salaried  employes,  the  noisome 
smells  which  came  sometimes  from  the  Pas- 
saic river,  and  the  establishment  of  the  ML 
Prospect  and  Forest  Hill  section  of  the  city 
of  Newark.  It  is  to  be  observed  that  Mt. 
Prospect  avenue  Is  the  next  street  westerly 
to  the  vidnlty  under  consideration,  but  it 
lies  on  a  ridge,  and  there  is  no  access  to  it 
from  the  vicinity  in  question  short  of,  I 
think,  half  a  mile,  except  by  stairs,  so  that 
there  is  a  dear  line  of  demarcation  between 
the  Mt.  Prospect  section  and  this  vicinity. 
No  evidence  worthy  of  serious  consideration 
was  produced  which  would  indicate  that  the 
restricted  property  was  at  the  present  time 
salable  for  residential  purposes.  The  dTect 
of  the  development  has  been  such  as  to  com- 
pletely surround  this  smaU  restricted  tet- 
iltory  on  one  side  of  a  street  by  a  class  of 
houses  not  at  all  in  harmony  with  those  con- 
templated by  the  restrictive  agreement.  I 
cannot  see  that  the  erection  of  the  building 
in  qnestlon  will  Irreparably  or  In  any  wise  in- 
jure tbe  complainant,  in  view  of  the  character 
of  the  neighborhood.  The  apartment  house 
to  be  erected  Is  of  the  latest  type ;  the  rent 
will  be  ai)proxlmately  $10  a  room,  which 
means  that  there  will  be  a  class  of  people 
inhabit  It  who  can  afford  to  pay  from  $40  to 
$60  a  month  and  upwards ;  the  general  char- 
acter of  the  neighborhood  will  not  be  chang- 
ed. The  apartments  are  not  so  numerous  as 
that  there  will  be  an  excess  of  noise  and 
confusion.  Taking  the  territory  as  a  whole, 
I  think  that  the  apartment  will  be  a  better- 
ment rather  than  a  detriment  It  must  not  be 
overlooked  that  neither  the  complainant  nor 
lUs  predecessor  In  title  protested  against  the 
erection  of  the  two-family  houses  on  the 
southerly  side  of  Delavan  avenue  within  the 
restricted  territory,  and  contrary  to  tfie 
Testrlctive  agreement,  nor  against  the  erection 
of  what  have  been  called  the  double  houses 
on  the  westerly  side  of  Lincoln  avenue  with- 
in the  restricted  territory,  and  I  think  with- 
in the  restrictive  agreement  as  construed  by 
Vice  Chancellor  Howell,  nor  that  there  are 
at  the  present  time  two  apartment  houses  on 


the  northerly  side  of  Delavan  avenue,  which, 
while  not  within  the  restricted  territory  abut 
on  complainant's  house,  nor  that  complain- 
ant's predecessor  In  the  title,  although  a  par- 
ty to  the  Summer  avenue  agreement,  ac- 
quiesced in  its  violation.  The  ultimate  fate 
of  all  of  this  territory  is  that  it  will  be 
built  !up  with  two-family  and  apartment 
houses.  It  Is  only  a  question  of  time.  My 
reoollectlon  Is  that  the  complainant,  or,  if 
not  the  complainant,  one  of  the  witnesses 
who  owned  one  of  the  residences,  testified 
that  a  man  would  be  foolish  to  buy  into  the 
territory  for  residential  purposes  In  the  sense 
contemplated  by  the  restrictive  agreement. 

My  conclusion  is  that  it  would  be  inequi- 
table for  this  court  to  at  this  time  enforce  the 
restrictive  agreement,  and  that  tbe  case  is 
within  that  of  Page  v.  Murray,  46  N.  J.  Eq. 
325,  19  Atl.  11. 

I  will  advise  a  decree  dismissing  the  bill, 
but,  under  the  circumstances,  the  dismissal 
will  be  without  costs.  This  case  is  determin- 
ed, of  course,  solely  upon  the  facts  now  be- 
fore the  court,  and  I  express  no  opinion  aa 
to  whether,  If  an  attempt  were  made  to  erect 
in  this  neighborhood  a  tenement  house  or 
a  factory,  or  if  an  attempt  were  made  to  vio- 
late the  restrictive  agreement  in  any  other 
manner,  this  court  would  or  would  not  in- 
tervene. 


(90  N.  J.  Law.  44S) 
DEPARTMENT  OF  HEALTH  OP  NEW 
JERSEY  V.  MONHEIT. 

(Supreme  Court  of  New  Jersey.    June  19, 1917.) 

(Bvllabua  by  the  Court.) 

Courts  «=>176%  —  Smaix  Cause  Cottbts  — 
Review  —  Penalties  under  Food  Laws  — 
jvbisdiction. 
In  an  action  to  recover  a  penalty  for  vio- 
lating the  provisions  of  tbe  pure  food  law  (Act 
April  20,  1915  [P.  L.  p.  665]  i  1),  commenced  in 
the  small   cause   court,   the   court   of   common 
pleas   of   the   county,   in   whidi   the   action   la 
brought,  has  jarisdiction  to  hear  the  case  on 
appeal. 

(^erttorarl  to  Court  of  Common  Pleas,  Cinm- 
berland  County. 

Proceeding  by  tbe  Department  of  Health 
of  the  State  of  New  Jersey  against  Hlrsch 
Monhdt.  There  was  a  Judgment  for  plain- 
tiff, and  defendant  brings  certiorari.  Af- 
firmed. 

Argued  June  Term,  1917,  before  SWAXZE, 
BERGEN,  and  BIiACK,  JJ. 

Joslah  Stryker,  of  Trenton,  and  John  W. 
Wescott,  Atty.  G«i.,  for  respondent  Alvord 
&  Tuso,  of  Vlneland,  for  prosecutor. 

BLACK,  J.  The  question  to  be  decided  ta 
this  case  is  the  Jurisdiction  of  tbe  commou 
pleas  court,  to  hear  a  case  on  appeal,  in  a 
suit  brought  in  the  small  cause  court,  be- 
fore a  Justice  of  the  peace,  to  recover  a  pen- 
alty for  a  violation  of  the  pure  food  statute. 
The  defendant  was  charged  with  the  vlola- 


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101  ATLANTIC  RBPOR'raSB 


(N.J. 


tion  of  sectl<a  1  of  the  supplement  (P.  L. 
1915,  p.  666)  to  the  pure  food  act  (RevUdon, 
P.  lu  1907,  p.  485).  He  was  found  not  guil- 
ty by  a  Jury  in  the  small  cause  court.  The 
department  of  health  appealed  from  the  de- 
cision to  the  court  of  common  pleas  in  the 
county  of  Cumberland.  That  court  found  the 
defendant  guilty  and  imposed  a  penalty  of 
150,  hence  a  writ  of  certiorari  was  allowed, 
whldi  draws  in  question  the  Jurisdiction  of 
the  court  of  common  pleas.  The  grounds  of 
attack  are  that  the  suit  should  have  been 
commenced  before  the  Justice  of  the  peace, 
sitting  as  a  magistrate,  and  that,  by  the 
original  pure  food  act  (P.  L.  1901,  p.  194,  | 
16),  parties  aggrieved  may  appeal  to  the  <Ar- 
cult  court  of  the  county,  wherein  said  action 
Is  had.  Manifestly,  this  view  of  the  prose- 
cutor is  untenable,  as  is  clearly  demonstrated 
by  the  following  provisions  in  the  statute 
law  of  the  state.  Thus  the  revised  pure 
food  act,  above  dted  (P.  L.  1907,  p.  485,  I 
40;  2  Oomp.  Stat  of  N.  J.  p.  2574,  i  40), 
provides: 

"Any  and  all  penalties  prescribed  by  any  of 
the  provisions  of  this  act  shall  be  recovered  in 
an  action  of  debt.  •  •  •  The  pleadings  shall 
conform,  in  all  respects,  to  the  practice  prevail- 
ing in  the  court  in  which  any  such  action  shall 
be  instituted." 

And  in  the  supplement  above  cited  (P.  Ii. 
1915,  p.  665,  {  5),  the  statute  under  which  the 
action  in  this  case  was  brought,  it  is  pro- 
vided: 

"Such  penalties  may  be  sued  for  and  recovered 
by  the  same  boards  and  officials,  and  in  the 
same  manner  as  provided  for  the  recovery  of 
penalties  in  the  act  to  which  this  act  is  a  sup- 
plement." 

The  act  speaks  of  a  court ;  the  only  court 
which  a  Justice  of  the  i)eace  Is  empowered 
to  hold  Is  the  small  cause  court;  by  the 
small  cause  court  act  (P.  L.  1903,  p.  251,  $ 
80),  as  amended  in  1904  (P.  L.  1904,  p.  72, 
f  80)  It  is  further  provided  that  from  any 
Judgment  which  may  be  obtained  in  those 
courts,  except  such  as  may  be  given  by  con- 
fession, an  appeal  is  given  to  the  court  of 
common  pleas  of  the  county. 

The  case  of  Harman  v.  Board  of  Phar- 
macy, 67  N.  J.  Law,  117,  50  Atl.  662,  however, 
is  decisive  of  this  case;  there  the  prose- 
cutor was  convicted  of  violating  the  pharma- 
cy act ;  the  suit  was  to  recover  a  penalty  un- 
der the  act,  as  in  this  case;  the  same  point 
was  there  made,  that  the  suit  should  have 
been  commenced  before  a  Justice  of  the  peace 
sitting  as  a  magistrate,  and  not  In  the  small 
cause  court;  that  case  held  the  action  was 
properly  commenced  in  the  small  cause  court 

We  therefore  conclude  that  the  Judgment 
of  the  court  of  common  pleas  had  Jurisdic- 
tion to  hear  the  case  on  appeal.  The  Judg- 
ment of  that  court  was  regular.  The  rules 
applying  to  summary  convictions  have  no 
application;  it  is  not  necessary  that  the  evi- 
dence in  the  court  be  set  out  or  the  proce- 


dure conform  to  the  rales  governing  som- 
mnry  convictions. 

The  Judgment  of  the  common  pleas  court 
of  Cumberland  county  is  affirmed,  with  costs. 


(W  N.  J.  Law,  620) 

MAYOR  AND  ALDERMEN  OF  JERSEY 

CITY  V.  THORPE. 

(Court  of  Brrors  and  Appeals  of  New  Jetaer. 

June  18,  1917.) 

(Byttalu*  tv  the  OourtJ 

1.  CwmNAL  Law  «=9260(2)  —  Bsview— Warr 

OF    EiBBOB. 

Writs  of  error  do  not  run  directly  to  this 
court  from  the  order  of  a  Justice  of  the  Supreme 
Court  reviewing  the  summary  convictions  of 
criminal  courts  in  municipalities. 

[E2d.  Note.— For  other  cases,  see  Oiminal 
Law,  Cent  Dig.  {§  568-571.] 

(Additional  Syllabus  hv  Editorial  Staff.) 

2.  CBUfiBAi.  Law  <g=>1030(2)— Appkai^Abgu- 
KENT  or  CoNSTrruTioNAL  Questions. 

An  appellant  has  no  right  to  argue  in  an 
appellate  court  constitutional  questions  based 
on  a  stipulation  entered  into  for  the  purpose  of 
such  appeal,  which  raise  for  the  first  time  ques- 
tions not  raised  in  the  court  below. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  |  '2620.] 

Appeal  from  Supreme  Court 

Herbert  A.  Thorpe  was  convicted  in  the 
First  Criminal  Court  of  Jersey  City  of  vio- 
lating an  ordinance  against  littering  the 
streets  with  refuse  matter,  and  from  a  Judg- 
ment of  the  Supreme  Court  afflmilng  the  con- 
viction, the  defendant  appeals.   Dismissed. 

EVank  W.  Heilenday,  of  Jersey  City,  for 
appellant    Jolm  Bentley,  of  Jersey  Cl^,  for 

appellee. 

GARRISON,  J.  The  appellant  was  con- 
victed by  the  First  criminal  court  of  Jersey 
City  of  a  violation  of  the  provisions  of  sec- 
tion 4  of  an  ordinance  entitled,  "An  ordinance 
concerning  the  Uttering  of  the  streets  with 
refuse  matter,"  in  that  the  said  appellant  did 
distribute  hand  circulars  iq>on  Summit  ave- 
Due  in  said  city. 

Having  been  thus  convicted,  the  appellanc 
made  application  to  the  Justices  holding  the 
circuit  of  the  Supreme  Court  in  Hudson  coun- 
ty for  the  purpose  of  liavlng  his  said  convic- 
tion set  aside,  if  found  to  be  illegal,  as  pro- 
vided by  the  act  establishing  criminal  courts 
in  municipalities  in  counties  of  the  first  class. 

The  said  Justice  having  heard  said  appeal, 
"under  the  statute  in  such  case  made  and 
provided"  ordered  that  the  conviction  of  the 
said  appellant  be  affirmed.  TlUs  order  the 
appellant  seeks  to  bring  Iiefora  this  court  by 
an  appeal. 

[1]  It  is  too  plain  for  argumoit  that  sudi 
an  appeal  is  without  legal  foundation,  noK 
only  for  the  reason  that  an  appeal  has  noc 
been  substituted  for  a  writ  of  error  in  the 
review  of  the  Judgments  of  courts  of  criminal 


»For  oUnr  ihmh  m*  mlom  topis  asd  KST-KUUBEB  IB  all  Ka7-Namb«nd  DlgasU  and  lodazK 


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MALOME  ▼.  ERIE  B.  CO. 


415 


Jurisdiction,  bat  for  the  more  substantial  rea- 
80Q  tliat  a  writ  of  error  does  not  mn  directly 
to  this  court  from  the  orders  or  Judgments  of 
a  legislative  agency  such  as  the  Justice  of  the 
Supreme  Court  Is  under  the  proTlslons  of  the 
statute  under  which  the  proceedings  below 
irere  had. 

Certiorari  Is  the  proper  remedy;  the  con- 
stitutionality of  the  statutory  review  by  a 
legislative  agency  Is  sustainable  solely  upon 
the  ground  that  orders  or  JiUdgments  so  made 
may  be  supervised  by  the  Supreme  Court  up- 
on certiorari.  Newark  ▼.  Kazlnski,  86  N.  J. 
Law,  page  59,  90  Atl.  1016. 

The  present  appeal,  therefore,  brings  noth- 
ing before  this  court,  and  must  consequently 
be  dismissed. 

[2]  It  may  be  well  to  point  out  to  counsel 
for  the  appellant  that  he  has  no  right  to  ar- 
gue In  an  appellate  court  constitutional  ques- 
tions based  upon  a  stipulation  entered  Into 
for  the  purpose  of  such  appeal,  and  raising 
for  the  first  time  In  the  appellate  tribunal 
questions  that  were  not  raised  In  the  court 
below.  N.  J.  Digest,  sec.  91,  et  seq. ;  State 
V.  Sh«4ie,  88  N.  3.  Law,  page  610,  97  AtL  271. 


(90  N.  J.  Law,  US) 

ELLIS  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  New  Jersey.    June  2S,  1917.) 

fSyllahiu  by  the  Court.) 

1.  EXEonroRs  and  Advinistbators  9=3456(3) 
—Costs— Motion  to  Nou  Pros. 

In  an  action  broasht  by  an  administrator 
under  the  "Death  Act^'  (2  Comp.  SL  1910,  p. 
1907)  a  motion  to  non  pros.,  if  granted,  is  with- 
out costs  against  the  plaintiff. 

[Ed.  Note. — For  other  casest  see  Kxecutors  and 
Administrators,  Cent.  Dig.  {{  1951-1954,  1957, 
1968.] 

2.  Case  Followed. 

The  ease  of  Kinney,  Adm'r,  ▼.  G.  R.  B. 
Co,  34  N.  J.  Law,  273,  foUowed. 

Action  by  Alfred  H.  Ellis,  administrator, 
against  the  Pennsylvania  Railroad  Company. 
Motion  to  non  proa.  Rule  entered  without 
costs  to  plaintiff. 

Argued  February  term,  1917,  before  GAB- 
BISON,  PARKER,  and  BERGEN,  JJ. 

John  A.  Hartpence,  of  Trenton,  for  the 
motion.  Warren  Dixon,  of  Jersey  City,  op- 
posed. 

GARRISON,  J.  This  is  a  motion  for 
Hon  pros.,  and  for  the  allowance  of  coats  ta 
favor  of  defendant  against  the  plaintiff,  who 
Is  an  administrator  suing  under  the  "Death 
Act"  The  court  granted  the  non  pros.,  but 
reserved  the  question  of  costs,  with  leave  to 
defendant  to  submit  a  memorandum  In  sup- 
port of  the  application  therefor  against  the 
administrator,  which  has  now  been  handed 
to  the  court. 

In  his  memorandum  counsel  frankly  ad- 
mits that  In  the  case  of  Kinney  v.  O.  B.  R. 
Co.,  34  N.  J.  Law,  273  (1870),  this  court  de- 


cided that  a  defendant  could  not  recover 
costs  against  an  administrator  In  an  action 
brought  under  the  "Death  Act"  He  also  ad- 
mits that  for  nearly  50  years  this  rule  has 
been  applied  In  this  court  He  then  argues 
with  much  force  that  the  rule  Is  wrong  for 
the  reason  that  the  administrator  does  not 
sue  in  the  right  of  his  Intestate,  but  In  the 
right  of  statutory  beneficiaries.  We  ex- 
press no  opinion  as  to  whether  the  original 
decision  of  this  question  was  correct  or  not, 
for  the  reason  that  It  Is  the  Judicial  habit 
of  this  court  under  the  circumstances  now 
before  us  to  follow  Its  own  previous  deci- 
sion, leaving  It  to  the  Court  of  Errors  and 
Appeals  to  review  the  legal  merits  of  such 
decision. 

The  rule  of  non  pros,  may  be  entered  with' 
out  costs. 

(M  N.  J.  law,  SSO)  ■ 
MALONB  V.  ERIE  B.  CO. 
(Supreme  Court  of  New  Jersey.    June  28, 1917.) 

(ByUalut  Iv  the  Court.) 

DlSMISSAI,    AND    NONStnT    «=»7(1)— RlQHT    TO 

Take  Nonsuit. 
When  a  judge  is  tryinfr  a  case  with  a  jury, 
bis  opinion  as  to  the  sufficiency  of  the  plain- 
tiff's proofs,  whether  communicated  to  connsel 
or  not,  does  not  deprive  the  plaintiff  of  his 
right  to  submit  to  a  voluntary  nonsuit  at  any 
time  before  the  jury  haa  retired  to  consider  its 
verdict  or  the  judge  has  commenced  to  address 
the  jury  for  the  purpose  of  directing  a  verdict. 

[Ed.  Note.— For  other  cases,  see  Dismissal  and 
Nonsuit,  Cent  Dig.  {{  15,  18,  19,  22.] 

Appeal  from  District  Court 

Action  by  James  0.  Malone  against  the 
Erie  Railroad  Company.  There  was  a  Judg- 
ment for  defendant,  and  plaintiff  appeals. 
Reversed,  and  venire  de  novo  awarded. 

Argued  February  term,  1917,  before  QAA- 
RISON,  PARKER,  and  BERjQEN,  JJ. 

Thomas  J.  Brogan,  of  Jersey  City,  for  ap- 
pellant Collins  &  CorMn,  of  Jersey  City,  for 
appellee. 

GARRISON,  J.  This  was  an  action  (or 
damages  for  the  negligent  transportation  of 
skins  whereby  they  heated  and  were  In  part 
spoiled. 

A  motion  to  direct  a  rerdtct  was  made, 
during  the  argument  of  which  the  court  sev- 
eral  times  gave  expression  to  a  view  of  the 
case  favorable  to  the  granting  of  the  mo- 
tion, and  when  these  expressions  had  reached 
a  point  that  satisfied  coans^  for  the  plain- 
tiff that  in  the  view  of  the  court  his  evidence 
was  not  sufficient  to  make  a  case  for  the  Jury, 
he  said  to  the  court  that  he  would  take  a 
nonsuit  This  right  the  court  denied  blm, 
and  after  an  exception  had  been  taken  to  this 
ruling  the  court  addressed  the  Jury  and 
directed  them  to  render  a  verdict  for  the  de- 
fendant 

We  think  that  It  was  error  to  deny  the 
plaintiff's  motion  to  submit  to  a  voluntary 


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nonsuit  made  before  tbe  Jury  had  retired  to 
consider  Its  verdict  and  at  a  time  when  it 
had  not  been  directed  what  verdict  to  render. 

Section  160,  Practice  Act  (3  Oomp.  St  I&IO, 
p.  4103),  takes  away  this  right  only  "after 
tbe  Jury  hare  gone  from  the  bar  to  con- 
sider their  verdict."  This  applies  to  district 
courts.  Greenfield  v.  Cary,  70  N.  J.  Law,  613, 
67  Atl.  269 ;  Ciesmelewski  r.  Domalewski,  No. 
432,  November  term,  1016,  100  AtL  179. 

In  this  latter  case  there  was  no  Jury  and 
tbe  Judgment  pronounced  by  the  court  was  in 
effect  after  the  consideration  ot  its  verdict 

Wolf  Company  r.  Fulton  Bealty  Co.,  83 
N.  J.  Law,  344,  84  AtL  1041,  was  also  a  case 
tried  without  a  Jury  and  the  Judge  had  be- 
gun to  announce  his  decision,  which,  of 
course,  assumed  that  tbe  Jury  element  in  the 
court  had  considered  its  verdict 

Mr.  Justice  Swayze  in  this  case  said  that 
the  situation  was  closely  analagous  to  one 
where  the  trial  Judge  has  directed  tbe  Jury 
to  render  a  verdict  for  the  defendant,  but  the 
verdict  has  not  in  fact  been  rendered,  in 
which  situation  the  plaintiff  has  no  right  to 
submit  to  a  nonsuit,  citing  Dobkln  v.  Dltt- 
mers,  76  N.  J.  Law,  235,  69  Att.  1013. 

The  theory  of  this  line  of  cases  is  that, 
when  the  Jury  has  been  directed  as  to  its  ver- 
dict no  consideration  by  the  Jury  is  con- 
templated; hence  tbe  offer  to  submit  to  a 
nonsuit  comes  too  late.  The  essential  feature 
of  these  dedslocs  Is  the  legal  effect  of  a 
binding  Instruction  delivered  by  the  court 
to  the  Jury.  The  attempt  In  the  present  case 
la  to  give  to  the  t^inlon  expressed  by  the 
Judge  to  counsel  during  the  argument  of  the 
defendant's  motion  for  a  direction  the  same 
effect  that  the  cases  dted  give  to  a  Judicial 
direction  to  the  Jury  to  render  a  verdict  for 
the  defendant 

Tbe  confusion  of  these  two  totally  differ- 
ent things  loses  sight  of  the  fact  that  at  com- 
mon law  where  compulsory  nonsuits  were  un- 
known voluntary  nonsuits  were  based  upon 
the  communication  to  counsel  of  the  Judge's 
opinion  adverse  to  the  plaintiff.  So  far, 
therefore,  from  such  a  communication  pre- 
venting the  plaintifTs  submission  to  a  volun- 
tary nonsuit.  It  normally  led  to  It 

In  the  early  case  of  Bunyon  v.  Central 
Railroad  Company,  25  N.  J.  Law,  556,  while 
3ur  practice  as  to  nonsuits  was  still  In  the 
naklng,  this  court  said: 

"The  counsel  did,  indeed,  resist  the  motion 
\  dow,  and  the  question  whether  the  plaintiff 


had  made  a  case  which  entitled  him  to  recover 
was  fully  argued;  but  after  the  court  had  given 
the  opinion  that  the  plaintiff  ought  to  suffer  a 
nonsuit,  h*  did  not  insist  upon  his  right  to  have 
the  matter  submitted  to  tbe  jury.  In  such  case 
tbe  party  is  considered  as  technically  suffering 
a  voluntary  nonsuit" 

There  Is  nothing  in  oar  Judicial  rule  as 
to  compulsory  nonsuits  that  alters  the  com- 
mon-law right  to  submit  to  a  voluntary  non- 
suit If  that  right  has  been  abridged  it  is  by 
our  statute  which  preserves  the  right  until 
the  Jury  has  retired  to  consider  its  verdict  or 
some  Judicial  action  has  t>een  taken,  the 
legal  effect  of  which  Is  to  control  tbe  action 
of  tbe  Jury. 

It  results,  therefore,  that  when  a  Judge  la 
trying  a  case  wltti  a  Jury,  his  opinion  as  to 
the  sufficiency  of  the  plalntHTs  proofs, 
whether  communicated  to  counsel  or  not,  does 
not  deprive  the  plaintiff  of  the  right  to  sub- 
mit to  a  voluntary  nonsuit  at  any  time  before 
the  Jury  has  retired  to  consider  its  verdict 
or  the  court  has  addressed  the  Jury  for  tbe 
purpose  of  directing  its  verdict 

It  may  well  be  that,  when  tbe  Judge  has 
commenced  to  address  tbe  Jury  for  the  pur- 
pose of  directing  a  verdict  for  the  defendant, 
he  cannot  be  interrupted  by  counsel  for  the 
plaintiff.  That  question  does  not  arise  in 
this  case,  where  the  court  bad  not  commenced 
to  address  the  Jury,  but  had  expressed  bis 
opinion  in  a  running  colloquy  with  counsel. 

Having  readied  the  conclusion  that  there 
was  legal  error  in  tbe  denial  of  the  plain- 
tiff's right  to  take  a  voluntary  nonsuit  there 
must  be  a  reversal  of  the  Judgment  of  the 
district  court  and  the  award  of  a  venire  de 
novow 

(80  N.  J.  Law,  6C») 

DDFFI  v.  MAYOR  AND  ALDBRMBN  OF 
CITY  OF  PATERSON  et  aL    (No.  147.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

Appeal  from  Supreme  Court 

Proceeding  by  William  J. .  Duffy  against  the 
Mayor  and  Aldermen  of  the  Oity  of  Paterson 
and  others.  Prom  a  judgment  for  defendants, 
the  prosecutor  aooeala.     Affirmed. 

Ward  &  McOinnis,  of  Paterson,  for  appdlant. 
SMward  F,  Merrey,  of  Paterson,  for  appdlees. 

PER  CURIAM.  The  judgment  under  review 
will  be  affirmed,  for  tbe  reasons  given  in  the  per 
curiam  in  Wilhelmina  Koettegen  v.  Mayor  and 
Aldermen  of  the  (Titr  of  Paterson  et  al.,  101 
Atl.  268,  No.  149,  of  the  present  term  of  thia 
court 


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OAHIXiL  ▼.  TOWN  OF  WEST  HOBOKEN 


417 


(M  N.  J.  lAW,  <W) 

cahiui  t.  town  of  west  hoboken. 
McCarthy  t.  same. 

(Sapreme  Ckiurt  of  New  Jersey.    July  9,  1917.) 

(ByUalus  hy  the  Court.) 

Mdnicipal  Cobpobations  ®=»126— Obtices— 
Abolition— Remotai.  of  Incumbenj. 
While  a  mtinicipal  office  may  be  abolished 
by  the  municipality  for  economical  or  beneficial 
rensons,  and  the  incumbent  deprived  of  his  office, 
although  protected  by  a  tenure  of  office  statute, 
that  end  cannot  be  accomplished  by  a  removal 
from  office  contrary  to  the  terms  of  such  a  stat- 
ute, when  such  acti<xi  leaves  the  office  in  ex- 
istence, and  only  brings  about  the  creation  of  a 
vacancy  to  which  another  may  be  appointed. 

[BM.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  |f  298-300.] 

Certiorari  by  Tbomas  A.  Cahlll  and  by 
Pati-ick  McCarthy  against  tbe  Town  of  West 
Hoboken  to  review  two  resolutions,  of  the 
common  council  of  the  defendant  Town. 
Writs  allowed  and  resolutions  set  aside. 

Argued  February  term,  1917,  before  GAB- 
RISON,  PARKEK,  and  BERGEN,  JJ. 

John  J.  Fallon,  of  Hoboken,  for  prosecu- 
tors. Frederick  K.  Hopkins,  of  Hoboken,  for 
defendant 

BERGE<N,  J.  In  each  of  the  foregoing  cases 
a  rule  was  allowed  requiring  the  defendant 
to  show  cause  why  a  writ  of  certiorari 
should  not  be  allowed  to  review  a  resolution 
adopted  by  tbe  common  council  of  tbe  de- 
fendant on  tbe  lat  day  of  January,  1917,  re- 
scinding a  previous  resolution  of  the  council 
appointing  the  two  prosecutors  to  tbe  posi- 
tions of  patrolmen,  and  abolishing  the  posi- 
tions which  they  held.  On  the  argument,  the 
cages  being  argued  together.  It  was  agreed 
by  counsel  that.  If  the  court  determined  to 
allow  the  writs,  it  should  decide  the  merits 
of  the  controversy  as  If  on  final  hearing 
without  further  argument. 

It  was  stipulated  that  the  defendant  Is  in- 
corporated under  "An  act  providing  for  the 
formation,  establishment  and  government  of 
towns,"  approved  March  7, 1895  (P.  L.  p.  218), 
and  has  since  been  governed  by  the  provi- 
sions of  that  act;  that  tbe  defendant  on  April 
12,  1916,  adopted  an  ordinance  establishing 
a  police  department,  which  provided  that  the 
police  force  of  the  town  should  consist  of  one 
policeman  (to  be  called  patrolman)  for  every 
700  inhabitants  of  the  town;  that  the  two 
prosecutors  were  appointed  in  Decetnber, 
1916,  to  fill  vacancies,  one  caused  by  death, 
and  the  other  by  retirement;  that  the  ap- 
pointments took  efTect  Immediately,  and  the 
two  prosecntors  qualified  and  entered  upon 
the  performance  of  their  duties  as  patrolmen 
and  served  as  such  until  January  6,  1917; 
that  on  January  1, 1917,  tbe  defendant  adopt- 
ed a  resolution  rescinding  the  resolution  ap- 
pointing tbe  two  prosecutors  and  purporting 
to  abolish  tbe  office  of  patrolman  held  by  the 


prosecutors;  that  no  charges  were  preferred 
against  either  for  Incapacity,  misconduct, 
nonresidence,  disobedience  of  Just  rules  and 
regulations,  or  otherwise,  nor  was  either 
given  a  bearing  on  any  charge  or  charges; 
that  the  preamble  of  the  rescinding  resolu- 
tion refclted  that  the  police  force  was  suffi- 
cient without  tbe  appointment  of  tbe  pros- 
ecutors, and  that  such  appointments  were 
unwarranted  and  Imposed  an  unnecedsary 
and  unjust  burden  on  tbe  taxpayers;  and 
that  tbe  purpose  of  the  resolution  was  the 
promoting  of  the!  efficiency  of  the  department 
and  economy  In  the  administration  of  tbe 
town's  affairs. 

The  power  of  the  defendant  to  provide  for 
the  establishment  of  a  police  force  is  to  be 
found  in  section  SO  of  an  act  entitled  "An 
act  providing  for  the  formation,  establlsb- 
mefnt  and  government  of  towns"  (P.  L.  1895, 
p.  239;  O.  S.  6632,  {  375),  which  declares 
that  the  coundl  shall  have  power  by  ordi- 
nance to  establish  and  provide  for  the  ap- 
pointment, removal,  duties,  and  compensa- 
tion of  a  police  force^ 

"provided,  that  such  police  force  (excluding  of- 
ficers) shall  not  exceed  more  than  one  policeman 
to  every  eight  hundred  inhabitants:  And  pro- 
vided further,  that  no  policeman  or  police  officer 
shall  be  removed  except  for  neglect  of  duty,  mis- 
behavior, incompetency  or  Inability  to  serve." 

Tuere  is  nothing  in  this  record  which  tends 
to  show  that 'the  police)  department  of  the 
town  of  West  Hoboken  was  not  lawfully  es- 
tablished under  the  statute  above  referred  to. 

It  authorizes  tbe  establishment  of  a  police 
force  not  to  exceod  one  to  every  800  Inhab- 
itants, and  to  that  extent  tbe  numl>er  of 
patrolmen  Is  fixed  by  law,  and  appointments 
beyond  that  number  would  be  unlawful.  The 
fact  that  the  present  ordinance  fixed  the 
number  at  one  to  every  700  inhabitants  does 
not  destroy  the  ordinance  establishing  a  po- 
lice force  and  leave  the  municipality  without 
such  force;  for,  if  tbe  number  of  patrolmen 
is  not  properly  fixed  by  the  ordinance,  tbe 
statute  fixes  It,  and  wltliin  that  limit  all  ap- 
pointments would  be  legal,  and  in  this  case 
the  appointments  including  the  prosecutors 
do  not  exceed  that  limit.  We  are  of  opinion 
that  the  police  force  was  lawfully  estab- 
lished. 

If  the  police  department  was  lavrfnlly  es- 
tablished, then  tbe  statute  entitled  "An  act 
respecting  municipal  police  departments  law- 
fully established  in  this  state  and  regulating 
tbe  tenure  and  terms  of  office  of  officers  and 
men  employed  in  said  departments"  (P.  L. 
1915,  p.  688)  applies.  That  statute  (section 
1)  provides  that  in  municipal  police  depart- 
ments lawfully  established  in  this  state  tbe 
officers  and  men  employed  therein  shall  hold 
their  offices  and  continue  in  their  employ- 
ment— 

"during  good  behavior,  efficiency  and  residence 
in  the  municipality  wherein  they  are  respective- 
ly employed ;  and  no  person  shall  be  removed 
from  office  or  employment  in  any  such  police 


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department  or  from  the  police  force  of  any  such 
municipaUty  for  political  reasons  or  for  an^ 
other  caase  than  incapacity,  misconduct,  nonresi- 
dence  or  disobedience  of  just  rules  and  regula- 
tions established  or  whicn  may  be  established 
for  the  i>olice  force  in  such  department." 

Section  3  of  the  same  act  enacts  that  no 
pcfrson,  whether  officer  or  employe  in  any 
police  department,  shall  be  removed  from  of- 
fice except  for  a  cause  provided  In  the  first 
section  of  the  act — 

''and  then  only  after  written  charge  or  charges 
of  the  cause  or  causes  of  complaint  shall  have 
been  preferred  against  such  officer  or  employ^, 
signed  by  the  person  or  persons  making  such 
charge  or  charges  and  filed  in  the  office  of  the 
municipal  officer,  officers  or  board,  having  charge 
of  the  department  in  which  the  complaint  ansr 
es,  and  after  the  charge  or  charges  shall  have 
been  publicly  examined  into  by  the  proper  board 
or  authority  upon  reasonahle  notice  to  the  per^ 
son  charged,  it  being  the  intent  of  this  act  to 
give  every  person  against  whom  a  charge  or 
charges  for  any  cause  may  be  preferred  under 
this  act,  a  fair  trial  upon  said  charge  or  charges 
and  everj  reasonable  opportunity  to  make  his 
defense,  if  any  he  has  or  chooses  to  make." 

This  act  prevents  the  removal  of  any 
patrolman  from  a  poUcef  department  for  po- 
litical reasons,  or  for  any  other  cause  except 
Incapacity,  misconduct,  nonresldence,  or  dis- 
obedience of  rules,  and  then  only  after  a 
public  hearing  upon  written  charges,  and  It 
Is  not  pretcfnded  In  this  case  that  any  charges 
were  preferred  or  any  bearing  allowed. 

It  Is  urged  that  when  the  purpose  of  the 
removal  of  a  patrolman  Is  alleged  to  be  In 
the  Interest  of  economy  be  may  be  removed 
arbitrarily  by  resolution  and  without  a  bear- 
ing accordefd  to  him.  We  do  not  agree  to 
this  proposition,  for  the  ofllce  cannot  be 
abolished  by  resolution;  It  Is  created  either 
by  statute  or  ordinance,  and  must  be  abolish- 
ed In  a  like  solemn  manner.  If  it  be  grant- 
ed that  the  municipality  has  the  power  to 
reduce  the  number  of  patrolmen,  It  must  be 
done  by  ordinance  fixing  the  number  at  less 
than  the  statutory  ratio. 

The  statute  declares,  among  other  things, 
Ibat  the  council  shall  have  power  to  provide 
by  ordinance  for  the  removal  of  the  police 
force,  and  there  Is  nothing  In  this  record 
which  shows  any  such  ordinance;  all  that 
bppears  is  that  the  prosecutors,  lawfully  ap- 
pointed, are  removed  from  their  offices  with- 
out the  hearing  which  the  statute  gives  them, 
leaving  the  offices  in  existence  to  be  filled 
with  partisans  of  the  majority  of  tbe  council. 
If  this  can  be  done,  tbcfn  there  la  nothing  to 
prevent  other  removals  In  like  manner  until 
tbe  entire  force '  is  discharged  and  their 
places  filled  by  new  appointments,  all  by 
resolution  of  the  council.  Under  such  con- 
ditions the  allegation  of  economy  as  an  ex- 
cuse for  a  removal  of  an  Incumbent  without 
a  hearing  affords  an  easy  means  to  avoid  the 
statute. 

Mr.  Justice  Sciidder,  speaking  for  tbe 
Court  of  Errors  and  Appeals  in  Newark  v. 
Lyons,  63  N.  J.  Law,  632,  23  Atl.  274,  said 


statutes  of  this  dass  are  Intended  "for  the 
protection  of  Incumbents  while  the  offices 
continue,"  and  that  the  power  to  declare  all 
offices  vacant  cannot  foe  exercised  "for  tbe 
purpose  of  apixrintlng  another  to  the  vacated 
office  unless  It  be  for  good  cause  shown 
against  the  Incumbent,  for  tbU  would  be  a 
removal  within  the  prohibition  of  tbe  stat- 
ute." lit  that  case  It  was  held  that  a  power 
existed  to  abolish  useless  and  antiquated  of- 
fices and  that  "the  tenure  of  the  office  is 
qualified  by  the  continuance  of  tbe  office." 
In  Sutherland  v.  Jersey  City,  61  N.  J.  Law, 
436,  39  Atl.  710,  Paddock  v.  Hudson  Tax 
Board,  82  N.  J.  Law,  360,  83  AU.  185,  Van 
Horn  V.  Freeholders  of  Mercer,  83  N.  J.  Law, 
239,  83  AtL  891,  and  Boylan  v.  Newark,  58 
N.  J.  Law,  133,  32  AU.  78,  the  office  was  abol- 
ished. The  rule  seems  to  be  settled  In  this 
state  that,  while  a  mimicipal  office  may  be 
abolished  by  the  municipality  for  economical 
or  beneficial  reasons,  and  tbe  Incumbent  de- 
prived of  his  office,  although  protected  by  a 
tenure  of  office  statute,  that  end  cannot  be 
accomplished  by  a  removal  from  office  con- 
trary to  the  terms  of  such  a  statute  when 
such  action  leaves  the  office  in  existence  and 
only  brings  about  the  creation  of  a  vacancy 
to  which  another  may  be  appointed.  Tbe 
resolution  under  review  does  nothing  more 
than  create  a  vacancy  which  the  council  may 
at  any  time  fill,  and  is  not  supported  by  the 
cases  dted  by  the  defendant  holding  that  an 
office  may  be  abolished  in  the  public  interest 
even  where  tbe  incumbeot  Is  protected  by  a 
tenure  of  office  act. 

Whether,  under  any  circumstances.  In 
view  of  the  act  of  1915  (P.  L.  p.  688),  a  police 
officer  can  be  retooved  without  written 
charges,  and  a  hearing  accorded  as  provided 
In  that  act.  It  la  not  necessary  to  decide  In 
this  case,  for  here  the  office  remains  in  ex- 
istence, and  the  result  Is  the  removal  of  the 
prosecutors  from  office  without  charges,  or 
the  hearing  to  which  they  are  entitled,  and 
witbout  an  efTeetlve  abolition  of  the  offices 
which  they  held. 

The  writs  will  be  allowed  and  the  resolu- 
tion under  review  will  be  set  aside. 


(W  N.  J.  Law,  414) 
BIARTIN  et  al.  v.  WOODBRIDGE  TP..  MID- 
DLESHX  COUNTY,  et  al. 

(Supreme  Court  of  New  Jersey.    June  19, 1917.) 

(8v^la1»t*  by  tke  Court.) 
L  Taxation  «=>665— Tax  Sale— Arbeabs. 

Where  lands  have  been  sold  by  the  proper 
officer  to  make  taxes  in  arrears  levied  against 
land,  under  tbe  provisions  of  section  63  of  the 
act  of  1003  (4  (3omp.  St  1910,  p.  5134),  it  is 
lawful  to  add  to  the  taxes  In  arrears  for  the  cur- 
rent year,  to  make  which  a  sale  has  been  or- 
dered, all  arrears  of  taxes  for  which  the  land 
has  been  sold  and  purchased  by  the  taxing  dis- 
trict to  the  extent  necessary  to  pay  the  cost  of 
redemption,  whether  the  taxes  accrued  prior  to 


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MARTIN  ▼.  WOODBRIDQE  TP. 


119 


that  date  when  the  act  of  1903  went  into  effect 
OT  thereafter. 

[Ed.  Note.— For  otker  casea,  aee  Taxation, 
Cent  Dig.  i  1349.] 

2.  Taxation  «s»667—CoiXEcnoir— Mistake- 
Costs. 
The  fact  that  the  township  clerk  in  furnish- 
ing the  collector  with  a  statement  of  all  taxes  in 
arrears  erroneoaaly  included  an  installment  of  a 
■ewer  asaeasment  not  ;et  due  will  not  vitiate  the 
lale  when  it  appears  that  the  collector  before 
making  the  sale  corrected  the  error  by  deducting 
the  installment  and  did  not  include  it  in  the 
amount  for  which  the  sale  was  made,  nor  will 
the  fact  that  the  clerk  included  in  the  amount 
certain  costs  not  properly  chargeable  make  the 
■ale  illegal  if  in  fact  the  sum  for  which  the  land 
waa  sold  was  not  more,  excluding  the  fees,  than 
the  true  amount  due. 

[Eii.  Note. — BV>r  other  cases,  see  Taxation, 
Gent  Dig.  |  1350.] 

8.  Taxatior  «a»682— Tax  Saia— Advxbtisb- 

UKNT. 

Proof  by  the  collector  making  the  eale  that 
he  posted  advertisements  thereof  in  five  of  the 
most  public  ploces  of  the  taxing  district  is  not 
overcome  by  the  fact  that  two  of  the  places 
were  sometimes  closed  during  buainess  hours. 

CBd.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  S  1342.] 

4.  Taxation  «=>658(3>  —  Tax  Salb— Notick 

OF  Sau:. 
It  is  not  necessary  that  the  notice  of  sale 
for  unpaid  taxes  put  up  by  the  collector  sitall 
contain  a  statement  that  the  land  will  be  sold  in 
fee  if  no  one  should  bid  for  a  shorter  term. 
The  statute  makes  it  the  duty  of  the  ofScer  to 
make  the  sale  in  fee  if  no  one  shall  bid  for  a 
shorter  term,  and  it  is  not  necessary  to  adver- 
tise the  terms  of  the  statute. 

[Bd.  Note.— For  other  cases,  se«  Taxation, 
Cent  Dig.  {  1335.] 

Certiorari  by  Albert  Martin  and  ESphraim 
Cutter,  execntor  of  the  will  of  Samnel  Dal- 
ly, deceased,  against  the  Township  of  Wood- 
bridge,  In  the  County  of  Middlesex,  and  the 
Valley  Company  to  set  aside  a  tax  sale.  Sale 
confirmed. 

Argued  June  term,  1917,  before  SWATZE, 
BERQEN,  and  BLACK,  JJ. 

Charles  C.  Hommann,  of  Perth  Amboy,  for 
prosecutors.  J.  H.  T.  Martin,  of  Newark,  for 
defendants. 

BHRGEN,  J.  On  the  Slst  day  of  July,  1916, 
the  collector  of  the  township  of  Woodbrldge, 
In  the  connty  of  Middlesex,  sold  at  public 
anctlon  a  parcel  of  real  estate  for  unpiald 
taxes  to  the  defendant  Valley  Company  In  fee 
for  the  sum  of  $2,077.13,  and  thereupon  Issued 
to  the  purchaser  a  certificate  of  the  sale  as 
authorized  by  statute.  The  prosecutors  were 
allowed  a  writ  of  certiorari  to  review  the 
proceedings  upon  which  the  tax  certificate  la 
based,  and  also  for  an  order  setting  aside  the 
sale  and  certificate.  The  material  facts, 
which  are  not  In  dispute,  are  as  follows ;  The 
land  was  assessed  In  the  name  of  the  own> 
er,  Charles  S.  Demarest,  for  the  years  1894  to 
1911,  indaslTe,  and  In  the  name  of  the  estate 
of  Samuel  Dally  for  the  years  1012  to  1915, 
Inclusive;  that  in  1895  the  land  was  sold  for 
taxes  assessed  for  the  year  1894,  and  were 


also  sold  In  1896,  1900,  and  1908  for  the  taxes 
of  the  next  preceding  year,  the  township  of 
each  case  being  the  purchaser,  the  sales  la 
1895,  1898,  and  1900  being  for  the  period  of 
30  years,  and  those  of  1904  and  1908  being 
In  fee.  After  the  foregoing  sales  the  town- 
ship continued  to  levy  the  taxes  against  the 
land  In  the  name  of  the  owner,  and  no  taxes 
being  paid  after  the  sale  of  1908,  nor  the 
land  redeemed  from  the  effect  of  the  prior 
sales,  the  township  committee,  March  16, 
1916,  adopted  a  resolution  directing  the  col- 
lector to  sell  the  land  to  raise  the  taxes  lev- 
ied for  the  year  1914  and  for  all  other  taxes 
In  arrears. 

The  township  clerk  certified  to  the  collec- 
tor the  amount  of  unpaid  taxes  for  the  years 
1894  to  1915,  Inclusive,  and  also  an  unpaid 
sewer  assessment.  When  the  collector  came 
to  make  the  sale.  It  was  found  that  of  the 
sewer  assessment  $33  was  not  then  due,  and 
the  collector  deducted  that  sum  from  the 
amount  certified,  and  added  to  the  balance 
thus  ascertained  the  expenses  and  costs  of 
the  sale,  making  a  total  of  unpaid  taxes,  ln> 
terest,  sewer  assessment  and  expenses  of  $2,- 
077.13,  for  which  the  land  was  sold  and  pur- 
chased by  the  Valley  Company. 

The  sale  was  made  by  virtue  of  section 
53  of  the  tax  act  of  1903  (C.  S.  5134),  which 
provides  that,  where  land  has  been  sold  and 
purchased  by  a  taxing  district,  the  subsequent 
taxes  shall  be  levied  as  If  no  sale  had  been 
made,  and  shall  remain  a  paramount  lien  on 
the  land,  and  that  no  further  sale  shall  be 
made  unless  directed  by  the  governing  body 
of  the  municipality  assessing  the  taxes,  in 
which  case  the  clerk  of  the  taxing  district 
shall  certify  to  the  collector  the  amount  re- 
quired to  be  paid  to  redeem  the  land  from 
the  previous  sales,  and  that  the  collector  shall 
sell  the  land  for  the  amount  thereof  to  be 
added  to  the  tax  for  the  current  year.  In 
the  present  case  the  sale  was  made  for  taxes 
levied  In  the  year  1915,  and  to  it  was  added 
all  unpaid  taxes;  the  result  being  to  raise  a 
sufficient  sum  to  pay  all  taxes  In  arrears,  and 
also  to  redeem  the  land  from  the  prior  sales 
to  the  taxing  district 

[1]  The  first  reason  which  the  prosecutor 
argues  why  this  tax  sale  should  be  set  aside 
is  that  the  certificate  of  the  township  clerk 
of  the  amonnt  to  be  added  to  the  current 
taxes  Included  the  tax  for  the  years  between 
1894  and  1903,  the  date  of  the  act  which  per- 
mitted the  adding  of  anterior  unpaid  taxes 
to  those  of  the  current  year  for  which  the 
sale  was  to  be  made,  it  being  urged  that  the 
act  of  1903  had  no  application  to  taxes  ac- 
crued previous  to  that  date,  because,  although 
section  53  of  the  act  of  1003  declares  that: 

"Where  a  parcel  of  land  has  been  purchased 
and  is  held  by  the  taxing  district  under  a  tax 
sale  not  redeemed,  all  subsequent  taxes  •  •  • 
shall  be  and  remain  a  paramount  lien  on  the 
land  and  be  added  to  the  purchase  money  and 
shall  be  paid  before  the  iaind  can  be  redeemed 
from  the  sale" 


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101  ATLANTIC  REPORTER 


(N.J, 


—It  Is  provided  by  aectlon  66,  O.  S.  5141: 

"This  act  shall  take  effect  on  the  twentieth 
day  of  December  1903,  and  its  provisions  shall 
extend  to  proceedings  on  and  after  that  date,  re- 
lating to  taxes  assessed  in  the  year  1903,  but  not 
to  proceedings  relating  to  taxes  assessed  in  prior 
years." 

Section  66  appears  to  be  a  legislative  dec- 
laration that  tbe  act  of  1903  shall  not  ap- 
ply to  proceedings  relating  to  taxes  thereto- 
fore assessed,  and  that  the  collection  of  prior 
unpaid  taxes  cannot  be  enforced  In  the  meth- 
od provided  by  section  63,  which  relates  to 
cases  where  at  a  prior  tax  sale  the  taxing 
district  became  the  purchaser.  By  the  stat- 
ute of  1902  (P.  L.  447)  aU  unpaid  taxes  as- 
sessed after  the  Ist  day  of  January,  1898, 
were  made  a  first  lien  for  and  during  tbe 
period  of  five  years  next  after  the  date  on 
which  they  become  delinquent,  and  by  section 
2  of  the  same  act  taxes  thereafter  assessed 
were  made  a  paramount  Uen  for  five  years, 
but  this  act  was  rqtealed  In  1003  (P.  L.  446) 
with  the  proviso  that  the  repealer  should  not 
afTect  the  proceedings  or  remedies  relating 
to  taxes  assessed  prior  to  1903.  Tbe  effect 
of  this  repealer  was  to  restore  tbe  status 
existing  prior  to  its  adoption,  the  limitation 
of  five  years  being  removed,  and  the  pro- 
ceedings and  remedies  relating  to  taxes  as- 
sessed prior  to  December  20, 1903,  restored. 

By  the  statute  of  1879  (P.  U  298;  C.  8. 
6188)  it  was  enacted  that,  where  real  estate 
theretofore  or  thereafter  sold  for  nonpay- 
ment of  taxes,  assessments,  or  water  rents 
was  purchased  by  tbe  taxing  district,  or  by 
any  person  in  its  behalf,  subject  to  the  right 
of  redemption,  the  taxes,  assessments,  and  wa- 
tese  rents  should  continue  to  be  assessed  up- 
on the  land  for  subsequent  taxes,  but  that  It 
should  not  be  necessary  to  sell  the  land  for 
nonpayment,  and  that  such  taxes  and  assess- 
ments should  remain  a  first  lien  upon  the 
lands  to  be  paid  before  it  could  be  redeemed, 
but  this  does  not  provide  for  a  sale  for  un- 
paid taxes  for  which  a  sale  had  been  made, 
so  the  situation  is  that,  as  to  taxes  assessed 
prior  to  1903  and  for  which  the  land  assessed 
had  been  sold  and  purchased  by  the  taxing 
district,  the  right  of  redemption,  and  not  of 
resale,  existed,  and  the  only  question  now 
presented  is  whether  in  making  a  sale  under 
section  53  of  the  tax  act  the  cost  of  redemp- 
tion may  be  added  to  the  amount  of  tbe  cur- 
rent taxes  for  which  a  sale  is  to  be  made. 
We  do  not  perceive  any  difference  between 
selling  to  make  a  current  tax  subject  to  a 
right  of  redemption  from  a  prior  sale  and  a 
sale  to  make  current  taxes  which  shall  In- 
clude tbe  amount  necessary  to  pay  the  re- 
demption fee.  The  sale  made  under  the  act 
of  1903  Is  in  fee  unless  the  bidder  will  take 
It  for  a  shorter  term,  and  the  purchase  of 
a  fee  subject  to  the  cost  of  redemption  would 
require  the  payment  of  the  latter  cost;  for 
it  cannot  be  assumed  that  the  Legislature 
ever  intended  by  implication  what  It  has  uot 
expressly  declared,  viz.  that  a  sale  of  land 
(or  unpaid  taxes  tor  a  current  year  under  j 


the  act  of  1903  would  deprive  the  taxing  dis- 
trict of  its  right  to  claim  and  be  paid  tbe 
taxes  In  arrears  for  whldi  it  had  purchased 
the  land  and  was  holding  subject  to  the  own- 
er's right  of  redemption.  We  are  therefore 
of  opinion  that,  when  a  sale  of  land  is  made 
under  the  act  of  1903,  the  taxing  district 
may  add  to  the  current  tax  for  which  a  sale 
is  about  to  be  made  the  amount  required  to 
be  paid  to  redeem  the  land  from  the  effect 
of  all  prior  sales  at  which  a  taxing  district 
became  the  purchaser.  In  matters  of  taxa- 
tion all  doubtful  questions  must  be  resolved 
in  favor  of  the  right  of  the  state  to  enforce 
the  payment  of  taxes  levied  to  sustain  the 
government 

The  next  point  Is  that,  as  some  of  these 
taxes  are  more  than  20  years  in  arrears, 
there  Is  a  presumption  that  the  tax  has  been 
paid.  In  support  of  this  we  are  referred  to 
In  re  Commissioners  of  Trenton,  17  N.  J. 
Law  3.  p.  23,  In  which  it  is  reported  that  Mr. 
Justice  Abbett  said  that  as  to  taxes: 

"A  presumption  of  payment  arises  after  a 
lapse  of  20  years  if  there  is  no  evidence  to  repel 
it,  and  to  show  that  the  deht  is  still  unsatisfied." 

Without  conceding  that  sudi  a  presump- 
tion arises  against  the  state,  It  is  a  sufficient 
answer  in  this  case  to  say  that  such  a  pre- 
sumption, if  it  exists.  Is  rebutted  by  the  ad- 
mitted fact  that  none  of  the  taxes  now  in  dis- 
pute have  ever  been  paid.  But,  aside  from 
this,  all  of  these  taxes  beyond  tbe  20-year 
limit  have  been  enforced  by  a  sale  and  pur- 
chase by  the  taxing  district  for  the  i>eriod 
of  30  years,  which  has  not  yet  expired,  and 
therefore  It  is  still  the  owner  subject  to 
the  owner's  right  of  redemption  if  that  right 
has  not  yet  expired. 

[2]  The  next  reason  argued  Is  that  the  cer- 
tificate of  the  derk  Included  an  installment 
of  a  sewer  assessment  amounting  to  $33  not 
yet  payable,  and  that  this  amount,  although 
deducted  by  the  collector  before  the  sale,  was 
Included  in  the  certificate  of  the  clerk.  It 
is  not  denied  that  this  amount  was  not  in- 
eluded  in  the  sum  for  which  tbe  sale  was 
made,  and  the  mere  fact  that  there  was  a 
mistake  In  the  amount  claimed  in  the  cer- 
tificate of  the  clerk  which  was  corrected  be- 
fore the  sale  and  it  made  for  the  true  amount 
will  not  vitiate  the  sale;  for  tbe  owner  was 
in  no  way  injured  because  he  could  have  re- 
deemed before  tbe  sale  by  paying  the  correct 
amount  for  which  the  sale  was  made. 

Another  reason  urged  is  that  the  certifi- 
cate of  the  clerk  Included  certain  items  of 
cost  which  were  greater  than  that  allowed  by 
law;  that  Is,  that  40  cents  was  charged  in 
each  case  as  a  fee  in  excess  of  the  legal 
amount  This  does  not  make  the  sale  Il- 
legal when  It  appears,  as  It  does  here,  that 
tbe  amount  for  which  the  property  was  sold, 
owing  to  other  slight  miscalculations,  was 
not  more  than  was  due  the  township,  ex- 
(dndlng  these  alleged  illegal  fees,  there  be- 
ing nothing  to  show  that  the  owner  oOTered 
to  redeem  for  any  sum  due  less  these  fees. 


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421 


or  that  he  made  any  objection  thereto  prior 
to  the  sale,  or  that  he  Is  now  willing  to  re- 
deem by  paying  the  amount  due. 

The  next  reason  urged  Is  that  the  lands 
conid  not  be  advertised  for  sale  to  make  the 
taxes  ot  1915  until  after  July  1,  1916,  prior 
to  which  time  the  land  could  not  be  sold  for 
impald  taxes  for  the  year  1915.  This  claim 
Is  not  sound,  for  there  Is  nothing  In  the  stat- 
nte  which  prevents  the  advertising  of  the 
land  for  sale  prior  to  the  Ist  day  of  July 
in  each  year;  all  that  the  statute  forbid*  is 
a  sale  prior  to  that  date,  and  In  this  case  a 
sale  was  not  made  until  after  that  date. 

[3]  The  next  reason  urged  Is  that  the  ad- 
vertisements of  the  sale  were  not  put  up  In 
Ave  of  the  most  public  places  of  the  taxing 
district.  It  Is  not  urged  that  the  places  were 
not  public  In  the  general  sense  of  that  word, 
bat  that  two  of  the  places  were  sometimes 
closed  during  business  hours.  Tbe  affidavit 
of  the  collector  sets  out  that  they  were  set 
np  "In  five  or  more  of  the  public  places  of 
said  township"  as  follows,  one  on  a  polo  on 
the  north  side  of  Green  street,  "In  front  of  the 
premises  described  In  said  notice,"  one  in  the 
post  office,  one  In  the  printing  office,  one  In 
a  real  estate  office,  one  In  a  grocery  store,  and 
one  In  the  public  room  of  a  hotel,  giving  the 
name  of  each.  We  think  this  Is  sufficient 
proof,  and  must  be  taken  as  true,  unless  It 
Is  rebutted  In  a  more  substantial  manner 
tlian  appears  in  this  case.  They  are  all  in  a 
fair  sense  public  places,  and  should  be  taken 
as  such  under  this  proof  In  the  absence  of 
anything  which  conclusively  sbows  that  they 
were  not  such  public  places  as  satisfies  the 
law.  What  is  a  public  place  would  depend 
upon  the  state  of  mind  of  any  one  objecting 
to  a  public  sale  by  any  officer  which  required 
the  posting  of  such  notices. 

[4]  The  next  reason  urged  Is  that  the  no- 
tice of  sale  did  not  state  that  the  land 
would  be  sold  in  fee  if  no  one  would 
bid  for  a  shorter  term.  Such  a  statement 
In  the  advertisement  of  the  sale  is  not  neces- 
sary, for  the  law  fixes  the  duty  of  the  offi- 
cer, which  is  to  sell  In  fee  unless  some  bid- 
der at  the  sale  Is  willing  to  pay  the  arrears 
in  consideration  of  an  estate  less  than  a  fee, 
and  the  report  expressly  states  that  no  person 
bid  for  a  shorter  term  than  a  fee,  nor  was  It 
necessary,  as  next  urged,  that  the  return  of 
the  collector  should  state  that  It  was  requir- 
ed to  sell  the  whole  of  the  land,  for  that 
sufficiently  appears  when,  as  he  did,  he  re- 
ports he  sold  the  entire  tract  to  make  the 
arrears. 

The  next  and  last  reason  nrged  Is  that  the 
affidavit  of  mailing  does  not  state  that  a 
copy  of  the  advertisement  was  mailed  to  the 
owner  of  the  land.  The  land  belonged  to  the 
estate  of  Samnel  Dally,  deceased,  of  whose 
will  Ephraim  CJutter  was  the  executor,  and 
his  affidavit  shows  that  be  mailed  to  Gutter 
as  the  executor  of  the  estate  of  Samuel  Dal- 
ly, deceased,  assessed  as  owner,  a  copy  of  the 


notice,  which  was  Indosed  in  an  envelope, 
with  the  postage  prepaid,  addressed  to  the 
said  Ephraim  Cutter.     This  is  sufficient. 

There  not  appearing  In  this  record  any  suf- 
ficient reason  why  the  certificate  of  sale 
should  be  set  aside,  the  proceedings  and  sale 
will  be  conflrmed,  with  costs. 


(88  N.  J.  Eq.  288) 
In  re  McGAW.    (No.  3766.) 

(Prerogative   Court  of   New  Jersey.     July   7, 
1917.) 

EXBCTTTOSB   AND    ADltimSTBATOBS    «=9314(3)— 
OBPHANS'     Ck>UBT— Decbeeino     Distkibu- 

TION — TXSTATE    EISTATES. 

The  orphans'  court,  under  the  power  and 
direction  in  3  CJomp.  St  1910,  p.  3877,  §  173, 
to  adjust,  order,  and  make  just  diatribution  "in 
accordance  with  the  directions  and  provisions 
of  the  last  will,"  cannot  decree  distribution  to 
an  aasitmee  of  a  legatee. 

fEd.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  §g  1279,  1280, 
1297.1 

Appeal  from  Orphans'  Court,  Atlantic 
Coimty. 

In  the  matter  of  the  appeal  of  Abbie  V. 
McGaw  fr(Hn  a  decree  of  orphans'  court 
Affirmed. 

John  O.  Homer,  of  Camdoi,  for  appellant 
Thompson  &  Smathers,  of  AUanttc  City,  for 
respondent 

LEAMING,  Vice  Ordinary.  This  Is  an  ap- 
peal from  a  decree  of  distribution  made  by 
the  orphans'  court  of  AtlanUc  county.  The 
decree  was  made  under  authority  conferred 
by  3  Comp.  Stat  p.  3877,  I  173.  Orphans' 
Court  Act  (P.  L.  1898,  p.  781). 

This  statute,  originally  passed  in  1872  (P. 
L.  1872,  p.  47),  by  its  terms  confers  upon  the 
orphans'  court  the  power  to  make  decrees  ot 
distribution  in  cases  of  testacy. 

The  decree  in  question  directs  the  money 
in  the  hands  ot  the  executor  to  be  paid  to 
the  residuary  legatee  named  in  the  will. 
That  disposition  of  the  money  Is  admittedly 
in  accordance  with  the  provisions  of  the  wllL 
But  appellant  herein  was  at  that  time  the 
equitable  owner  of  the  money  by  reason  of  a 
written  assignment  thereof  thnetofore  made 
to  him  by  the  residuary  legatee.  Appellant 
accordingly  sought  in  the  orphans'  court  a 
decree  of  distribution  which  should  give  rec- 
ognition to  the  assignment  and  direct  the 
money  paid  to  him.  The  Judge  of  the  or- 
phans' court  adopted  the  view  that  the  stat- 
ute only  authorized  a  decree  in  conformity 
to  the  provisions  of  the  will  and  refused  to 
recognize  the  assignment  for  that  reason. 

The  only  question  raised  on  this  appeal  Is 
therefore  whether  the  orphans'  court  after 
the  allowance  of  the  final  accounts  of  an 
executor,  may,  upon  application  of  a  party  in 
Interest  for  a  decree  of  distribution,  adjudge 
that  funds  payable  to  a  certain  legatee  by  the 
terms  of  the  will  shall  be  paid  to  a  person  to 


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101  ATLANTIC  REPOttTBE 


(N.J. 


whom  the  legatee  has  theretofore  assigned 
his  rights  in  the  legacy. 

Prior  to  the  act  of  1872  above  dted  the  or- 
pbans'  court  was  empowered  to  make  decrees 
of  distribution  in  cases  of  intestacy  only. 
That  power  was  conferred  by  the  act  of 
March  2,  1795  (Pat  h.  p.  153),  and  has  con- 
tinued to  this  time  with  but  slight  ciianges  in 
the  language  of  the  original  act  Comp.  Stat 
p.  3874,  i  168.  In  Sayre's  Adm'r  v.  Sayre,  16 
N.  J.  Eq.  505.  it  was  determined  that  under 
that  section  tibe  decree  must  be  made  in  fa- 
vor of  the  next  of  kin  irrespective  of  the  ex- 
istence of  any  assignments  that  might  have 
been  theretofore  made  by  such  distributee. 
At  page  609  of  the  reported  opinion  in  the 
chse  it  is  said: 

"It  is  no  part  of  the  office  of  the  decree  to 
settle  whether  the  share  has  been  paid  in  whole 
or  in  part;  or  whether  the  legal  or  equitable  in- 
terest in  the  fund  may  have  been  assigned.  The 
law  settles  with  sreat  precision  to  whom  the 
shares  of  the  estate  shall  be  allotted  in  making 
the  distribution." 

Tliat  view  does  not  appear  to  hare  been 
since  questioned,  and  has  been  given  appar- 
ent sanction  by  our  Ck>urt  of  Errors  and  Ap- 
peals in  Adams  t.  Adams,  46  N.  J.  Eq.  29i8, 
19  AtL  14. 

The  statutory  authority  of  the  orphans' 
court  over  decrees  of  distribution  in  cases  of 
testacy  cannot  be  easily  regarded  as  essen- 
tially different  from  that  enjoyed  in  cases 
of  intestacy  so  far  as  the  office  of  the  decree 
Is  concerned.  By  its  terms  the  statute  di- 
rects the  court  to  "adjust  order  and  make 
Jost  distribution  in  accordance  with  the  di- 
rections and  provisions  of  the  last  will  and 
testament  in  each  case,  of  what  shall  remain 
after  all  debts  and  expenses  shall  have  been 
allowed  and  deducted."  This  statute  thus 
confers  upon  the  court  a  power  and  duty  not 
otherwise  enjoyed,  and  is  specific  in  its  direc- 
tions. A  difference  in  the  necessity  of  a  de- 
cree of  distribution  in  cases  of  intestacy  and 
those  of  testacy  may  be  suggested,  in  that 
the  former  is  necessary  before  a  suit  can  be 
maintained  for  a  distributive  share  whereas 
a  legatee  may  sue  for  a  legacy  without  such 
decree;  but  that  clrcnmstance  tn  no  way 
serves  to  enlarge  or  define  the  powers  confer- 
red by  the  section  here  under  consideration. 
Treated  as  a  strictly  statutory  power  of  the 
court,  it  seems  clear  that  in  the  exercise  of 
that  power,  the  court  must  confine  the  opera- 
tion of  the  decree  so  made  to  the  directions 
of  the  will  in  accordance  with  which  the  de- 
cree is  directed  to  be  made.  To  adjudicate 
the  rights  of  persons  claiming  under  legatees 
in  a  proceeding  under  the  section  here  In 
qupstion  would  in  Its  effect  convert  the  pro- 
ceeding into  a  suit  for  legacies  in  apparent 
disregard  of  the  procedure  defined  for  suits 
of  that  nnture  In  that  court.  See  3  Comp. 
Stat  p.  3883,  {  192. 

Tktubts  suggested  as  to  tlie  constitutionali- 
ty of  the  section  are  here  passed  over.  Those 
doubts  are  suggested  in  Adams  v.  Adams,  46 


N.  J.  Eq.  298,  at  page  302,  19  Atl.  14;  LIp- 
pincott's  Case,  68  N.  J.  Eq.  578,  59  Att.  884; 
Polley's  Case,  70  N.  J.  Eq.  669,  at  page  663, 
62  Atl.  553. 

I  will  advise  an  order  affirming  the  decree 
of  the  orphans'  court 


(90  N.  J.  lAW,  4U) 
KELIiY  V.  BOARD  OF  CHOSEN  FREE- 
HOLDERS OF  ESSEX  COUNTI  et  aL 

(Supreme  Court  of  New  Jersey.    June  19, 1917.) 

(Syllahut  hg  the  Court.) 

municipai,  corpobations  4=3241— contbaci 

—Rejection  of  Lowest  Bio. 
A  municipality  cannot  lawfully  reject  the 
bid  of  the  lowest  bidder,  where  the  law  requires 
the  awarding  of  a  ccmtract  to  the  lowest  re- 
sponsible bidder,  upon  the  ground  that  he  is  not 
responsible  without  giving  him  a  hearing,  and  a 
finding  that  he  is  not  responsible,  rested  upon 
proper  facts. 

[Ed.  Note^— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  6T3.J 

Certiorari  by  James  F.  Kelly  to  review  the 
rejection  of  a  bid  by  the  Board  of  Chosen 
Freeholders  of  the  County  of  Essex  and 
others.  Order  to  be  entered  setting  aside  res- 
olution awarding  the  contract  and  contract 
rested  upon  it 

Argued  June  term,  1017,  before  SWAYZB, 
BERGEN,  and  BLACK.  JJ. 

Ralph  E.  Lum,  of  Newark,  for  prosecutor. 
Harold  A.  Miller,  of  Newark,  for  defendants. 

BERGEN,  J.  The  defendant  the  board  of 
chosen  freeholders  of  the  county  of  Essex, 
advertised  for  bids  for  the  plumbing  and  gas 
fitting  work  necessary  for  a  greenhouse  and 
a  gardener's  cottage  connected  witti  a  county 
hospital. 

The  prosecutor  was  the  lowest  bidder  by 
$1,  but  the  contract  was  awarded  to  the  next 
highest  bidder,  and  it  is  to  review  this  award 
that  the  writ  of  certiorari  was  allowed  in 
this  case.  The  difference  in  the  bids  is  small, 
but  the  principal  involved  is  applicable  to 
all  bids  and  cannot  be  evaded,  because,  in 
this  instance,  the  amount  is  small  for  the 
conflrolling  legal  role  must  be  applied  in  all 
cases  without  regard  to  sum  Involved.  The 
minutes  of  the  meeting  of  the  board  at  which 
the  bids  were  opened  and  considered  show 
that  after  the  bids  were  opened  the  architect 
reported  that  the  bid  of  James  F.  Kelly  was 
the  lowest,  and  that  thereupon  it  was: 

"Moved  that  on  account  of  the  unsatisfactory 
work  done  in  the  past  by  this  firm  for  the  coun- 
ty, that  the  bid  be  rejected.  Seconded  and  car- 
ried" 

— and  that  then  the  contract  was  awarded 
to  the  next  highest  bidder.  The  bestimony 
taken  in  support  of  this  action  justifies  the 
Inference  that  a  firm  with  whom  the  prosecu- 
tor was  at  one  time  connected  had  not  sat- 
isfied the  board  with  regard  to  work  which 
It  had  done  for  It,  but  so  far  as  the  testl- 


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BOEHM  y.  BOBHM 


423 


moii7  goes  It  affords  no  groand  for  any  in- 
ference that  prosecutor  was  responsible  for 
the  ground  of  complaint;  but  assuming  that 
bis  bid  was  rejected  upon  the  ground  that 
the  board  did  not  consider  him  a  res^nsl- 
ble  bidder,  tbe  action  was  taken  without  giv- 
ing him  a  hearing  or  making  a  finding  that 
he  was  not  a  responsible  bidder.  The  board 
has  no  right  to  arbitrarily  reject  a  bid  on 
that  ground.  The  bidder  has  a  right  to  be 
heard  and  to  a  determination  of  the  question, 
which  must  have  the  support  of  proper  facts, 
in  order  that  the  rejected  bidder  may  bare 
an  opportunity  to  review  the  action  taken 
and  the  sufficiency  of  the  proof  upon  which 
it  is  rested.  In  Faist  v.  Hoboken,  72  N.  3. 
Law,  361,  60  Atl.  1120,  this  court  said: 

"If  there  be  an  allefcadon  that  a  bidder  is  not 
responsible,  he  has  a  right  to  be  heard  upon  that 
question,  and  there  must  he  a  distinct  finding 
against  Mm,  upon  the  proper  facts  to  justify  it. 

And  in  Ilarrington  ▼.  Jersey  City,  78  N. 
J.  Law,  610,  75  Atl.  943,  Mr.  Justice  Swayze 
said: 

"If  the  prorisions  had  been  that  the  contract 
should  be  awarded  to  the  lowest  responsible  bid- 
der, it  would  have  been  necessary,  before  decid- 
ing adversely  to  the  prooecutorg  on  that  ques- 
tion, to  give  them  a  hearing." 

This  holding  was  approved  by  the  Court  of 
Errors  and  Appeals  on  appeal  of  the  same 
case    78  N.  J.  Law,  614,  75  Atl.  W3.    The 
law  has  thus  been  settled  in  this  state  that 
before  the  lowest  bid  can  be  rejecOed,  where 
the  statute  requires  that  a  contract  shall  be 
awarded   to  the  lowest   responsible  bidder, 
upon  the  ground  that  such  bidder  1&'  not  re- 
spoasible,  without  giving  him  a  hearing,  and 
a  distinct  finding  against  him  that  he  is  not 
a  responsible  bidder  upon  facts  which  war- 
rant such  a  conclusion.    No  such  hearing  was 
afforded  tbe  prosecutor  in  this  case,  nor  was 
there  any  determination  that  he  was  not  a 
responsible  bidder,  based  upon  proper  factts, 
and  therefore  the  resolution  awarding  the 
contract  and  the  contract  made  in  pursuance 
of  the  award  will  be  set  aside.    The  defend- 
ant rcdles  in  justification  of  Its  conduct  on 
McGovem  v.  Board  of  Works,  57  N.  J.  Law, 
580,  31  Atl.  613,  but  that  case  involved  an 
entirely     different     statute     requiring     the 
awarding  of  the  contract  to  the  lowest  bid- 
der giving  satisfactory  proof  of  his  ability  to 
fnmlBh  tbe  materials  and  perform  the  work 
properly,  and  to  offer  security  for  the  faith- 
ful  performance  of  the  contract,  which  is 
quite  different  from  the  present  act  requiring 
the  award  to  be  made  to  the  lowest  responsi- 
ble bidder,  a  distinction  pointed  out  by  Mr. 
Jostlce  Garrison  in  speaking  for  the  Court  of 
Errors  and  Appeals  in  the  Harrington  Case. 
And  in  the  McGovern  Case  Mr.  Justice  Llp- 
pincott  said  that  if  the  charter  of  the  city  of 
Trenton  provided  thab  contracts  "should  be 
awarded  to  the  lowest  bidder,  the  action  of 
the  governing  board  In  this  matter    •    •    • 


would  be  set  aside  as  an  unauthorized  exer- 
cise of  power,"  and  when  we  have  added  only 
that  tbe  lowest  bidder  shall  be  responsible, 
onr  courts  have  held  that  the  question  of  re- 
sponsibility Is  one  of  fact  to  be  decided  only 
after  the  bidder  has  been  heard.  In  addition  to 
this  the  rejected  bidder  was,  in  tbe  case  last 
cited,  accorded  a  hearing  with  tbe  assistance 
of  counsel. 

It  Is  to  be  regretted  that  the  municipality 
may  be  put  to  additional  expense  in  read- 
vertlslng  and  awarding  another  contract,  but 
we  can  find  no  way  to  avoid  it.  The  re^wn- 
sibillty  for  It  rests  with  the  public  board 
which  disregarded  a  settted  rale  for  law,  by 
action,  which.  If  approved,  would  nullify  the 
statute  and  permit  its  willful  avoidance  by 
the  arbitrary  action  of  municipal  bodies,  for 
If  permitted  where  tbe  difference  is  $1,  tbe 
same  principle  would  apply  to  a  like  unau- 
thorized action  If  the  difference  was  thou- 
sands, and  permit  favoritism  In  tbe  award- 
ing of  all  contracts. 

The  prosecutor  may  enter  an  order  setting 
aside  the  resolution  awarding  the  contract, 
and  the  contract  rested  upon  it. 


(88  N.  J.  Eq.  74) 

BOEHM  V.  BOEHM.     (Na  42/486.) 

(Court  of  Chancery  of  New  Jersey.    June  28, 
1917.) 

1.  Httsbano  and  Wife  «=4— Duty  to  Sup- 
port. 

The  duty  of  a  husband  to  support  his  wife 
is  not  dependent  upon  contract,  but  flows  from 
the  matrimonial  status. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  gf  »,  10.] 

2.  Rttbband  and  Wife  «=9279(1)— Dutt  to 
SuppoBT— Settijcmbnt— VALiDrrr. 

Where  the  wife  had  been  awarded  separate 
maintenance  which  she  had  been  unable  to  col- 
lect, and  she  made  a  settlement  with  the  hus- 
band for  $700,  which  purported  to  be  a  release 
of  all  accrued  and  future  liability,  hut  which 
the  wife  testified  she  did  not  unclergtand,  and 
there  had  accrued  under  the  original  decree  an 
amount  due  of  $5,000,  the  payment  of  $750  must 
be  wholly  disregarded,  and  was  no  bar  tt  the 
wife's  right  to  an  allowance. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  H  1054,  1056,  1059.] 

Bill  by  Kate  Myers  Boehm  against  E}ugene 
Boebm.    Decree  for  complainant. 

Thompson  &  Smatbers,  of  Atlantic  City, 
for  complainant.  Garrison  &  Voorhees,  of 
Atlantic  City,  for  defendant 

I^BAHING,  V.  0.  Complainant's  bill  has 
been  filed  pursuant  to  tbe  provisions  of  the 
twenty-sixth  section  of  our  divorce  act  (2 
Comp.  St  1910,  p.  2038),  and  prays  for  an  or- 
der to  compel  complainant's  husband  to  pro- 
vide for  her  and  her  minor  daughter  suitable 
support  and  maintenance. 

Tbe  defense  which  has  been  made  by  de- 
fendant is  based  upon  tbe  claim  that  a  decree 
which  was  heretofore  entered  In  this  court 


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101  ATLANTIO  BEPORTEB 


(N.J. 


in  a  slmnar  salt  requiring  defendant  to  pay 
to  complainant  $10  per  week  for  her  support 
has  been  satisfied  and  discharged  by  a  set- 
tlement made  by  the  parties,  in  which  settle- 
ment defendant  paid  to  complainant  an 
agreed  gross  amount  In  full  satisfaction  of 
all  past  and  future  claims  of  complainant  up- 
on defendant  for  her  support 

The  evidence  discloses  that  on  November 
22,  1904,  a  decree  of  this  court  was  entered 
in  behalf  of  complainant  against  defendant, 
as  complainant's  husband,  requiring  defend- 
ant to  pay  to  complainant  for  her  support 
and  maintenance  $10  per  week  thereafter 
until  further  order  of  the  court.  That  decree 
was  made  under  and  pursuant  to  the  proyl- 
slons  of  the  section  of  the  divorce  act  tben 
in  force,  the  provisions  of  which  were  sim- 
ilar in  terms  to  the  section  under  which  re- 
lief Is  now  sought  Great  difficulty  appears 
to  have  been  experienced  by  complainant  In 
the  enforcement  of  that  decree  until  May  25, 
1007,  when  the  settlement  already  referred  to 
was  made.  On  that  date  complainant  and  de- 
fendant executed  a  formal  written  agreement 
by  the  terms  of  which  they  agreed  to  live 
separate  and  apart  during  the  remainder  of 
their  lives,  and  complainant  agreed  to  accept 
$750  in  full  satisfaction  of  all  claims  past 
and  future  upon  her  part  against  her  hus- 
band for  support.  The  agreement  was  di- 
rectly between  the  parties,  without  the  in- 
tervention of  a  trustee ;  the  money  was  paid 
and  the  agreement  signed  and  acknowledgetl 
by  both  parties  before  an  acknowledging  offi- 
cer and  recorded,  and  the  decree  was  then 
discharged  of  record  by  complainant's  then 
solicitor. 

Complainant  now  testifies  that  when  slie 
signed  the  agreement  it  was  her  understand- 
ing that  it  was  only  in  satisfaction  of  back 
alimony  then  due  under  the  decree,  and  that 
she  did  not  know  that  the  agreement  exempt- 
ed defendant  from  the  payment  of  future  al- 
imony or  in  any  way  conferred  upon  him  the 
right  to  live  separate  and  apart  from  her. 
Opposed  to  that  testimony  is  the  solicitor 
who  then  represented  complainant  and  who 
took  the  acknowledgment.  He  has  testified 
that  the  full  purport  of  the  agreement  was 
explained  to  complainant  by  him  when  he 
took  her  acknowledgment  .and  that  she  fully 
understood  it 

It  is  difficult  to  determine  at  this  time  with 
entire  certainty  whether  complainant  ade- 
quately understood  the  terms  and  effect  of 
that  agreement  at  the  time  she  signed  it 
She  Is  a  woman  without  education  and  with 
an  intensely  dense  perception.  It  is  possible 
that  a  careful  and  painstaking  explanation  to 
her  of  the  contents  of  the  agreement  and  Its 
purpose  and  effect  could  have  adequately  ap- 
prised her  of  the  exact  nature  and  force  of 
her  engagement;  but  it  is  reasonably  clear 
that  less  than  that  could  not  have  accom- 
plished that  purpose.    The  settlement  was 


negotiated  by  the  soUcitom,  ftnd  the  written 
agreement  was  prepared  by  them  for  tbeir 
clients.  Alimony  to  a  considerable  amount 
was  admittedly  then  overdue,  and  from  com- 
plalnant's  viewpoint  even  more  was  overdue 
than  the  amount  that  at  tliis  time  appears  to 
have  l)een  then  overdue,  as  complainant  had 
not  received  certain  money  which  had  been 
paid  by  defendant  to  her  former  solicitor. 
Great  difficulty  had  been  encountered  by  com- 
plainant in  the  various  efforts  which  tiad 
been  made  to  enforce  payments  under  the 
court  decree,  and  complainant  had  appro- 
priately become  greatly  discouraged  in  Iier 
litigation.  These  discouragements  Iiad  led 
her  to  employ  a  new  solicitor  to  represent 
her,  and  the  attendant  circumstances  were 
such  as  to  render  it  entirely  natural  and  rea- 
sonable that  complainant  would  have  wholly 
relied  upon  the  advice  of  the  solicitor  then 
representing  her  in  signing  the  agreement 
without  real  effort  on  her  part  to  comprehend 
the  exact  nature  of  the  agreement  further 
than  to  ascertain  that  money  was  to  be  paid 
to  her.  Her  assumption  that  the  money  to  be 
paid  to  her  was  "back  alimony"  Is  far  from 
unreasonable  under  all  the  circumstances  un- 
less great  care  was  exercised  at  the  time  to 
satisfy  her  to  the  contrary.  The  same  may 
be  said  with  equal  or  greater  force  as  to  the 
provisions  of  the  agreement  which  were  de- 
signed to  release  defendant  from  future  lia- 
bility, including  the  provisions  for  the  par- 
ties to  live  apart  Unless  those  provisions 
were  at  that  time  explained  to  complainant 
with  more  care  than  Is  ordinarily  observed 
by  an  acknowledging  officer.  It  is  not  reason- 
able to  assume  that  they  were  adequately 
comprehended  by  complainant  In  their  force 
and  effect  The  nature  of  the  settlement  and 
complainant's  limited  mentality  and  the  other 
circumstances  leading  to  and  surrounding  the 
settlement  peculiarly  demanded  that  com- 
plainant should  receive  not  only  accurate  in- 
formation touching  the  amount  then  due  to 
her  for  back  alimony,  but  also  sound  counsel 
fondling  the  effect  of  the  instrument  bn  ber 
future  rights,  and  also  that  such  information 
should  be  Imparted  to  her  In  a  manner  salt- 
able  to  ber  limited  powers  of  comprehension. 

But,  in  the  view  which  I  entertain  of  the 
present  situation,  I  think  it  unnecessary  to 
here  determine  whether  the  written  agree- 
ment of  May  25,  1907,  was  executed  by  com- 
plainant without  an  adequate  understanding 
of  its  terms  or  effect,  or  whether,  as  claim- 
ed t>y  the  solicitor  of  complainant,  agree- 
ments of  that  nature  are  so  far  contrary  to 
the  policy  of  our  laws  as  to  render  them  void: 
for  I  am  unable  to  readi  the  conclusion  that 
the  transaction  is  In  any  aspecb  operative  as 
a  bar  to  complainant's  right  to  exact  from 
defendant  support  for  herself  and  her  daugh- 
ter at  this  time. 

[1]  The  duty  of  a  husband  to  support  his 
wiXe  Is  not  a  duty  dependent  upon  con- 


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BOBHM  V.  BOEHM 


426 


tract ;  tbat  doty  flows  feom  the  matrimonial 
status.  The  law  casts  upon  the  court  of 
cbanceigr  the  duty  of  enforcing  that  matri- 
monial obligation  of  a  husband  in  certain  cir- 
cumstances. The  language  of  our  statute  un- 
der which  the  present  bill  Is  filed  is  that : 

"In  case  a  husband,  without  any  justifieble 
canae,  shall  abcmdon  his  wife  or  separate  him- 
self from  her,  and  refuse  or  neglect  to  maintain 
and  provide  for  lier,  it  shall  l>e  lawful  for  the 
Court  of  Chancery  to  decree  and  order  such 
suitable  support  and  maintenance,  to  be  paid 
and  provided  by  the  said  husband  for  the  wife 
and  ner  children,  or  any  of  them,  by  that  mar- 
riaee,  or  to  be  made  out  of  his  property,  and  for 
sDch  time  as  the  nature  of  the  case  and  cir- 
cumstances of  the  parties  render  suitable  and 
proper  in  the  opinion  of  the  court,  and  to  com- 
pel the  defendant  to  give  reasonable  security 
for  such  maintenance  and  allowance,  and  from 
time  to  time  to  malce  such  further  orders  touch- 
ing the  same  as  sball  be  just  and  equitable." 

In  the  former  suit  brought  by  tills  com- 
plainant this  court  accordingly  adjudged  that 
defendant  had  without  Justifiable  cause  aban- 
doned complainant  and  refused  to  support 
her,  and  the  decree  then  entered  required  de- 
fendant to  pay  to  her  $10  per  week  until 
farther  order  of  the  court  for  her  support. 
In  that  situation,  and  with  payments  under 
the  decree  In  default  to  a  large  amount,  it 
is  claimed  by  defendant  that  complainant 
voluntarily  accepted  $750  as  a  gross  amount 
in  full  discharge  of  all  past  and  future  obli- 
gations of  defendant  for  her  support,  and 
thus  absolved  defendant  from  all  future  du- 
ties of  that  nature.  If  a  husband  can  thus 
absolve  himself  from  the  duty  of  support 
for  all  time,  it  is  obvious  that  this  court 
is  rendered  powerless  to  perform  the  duty 
imposed  by  the  act  above  quoted,  for  that 
act  clearly  contemplates  the  enforcement  of 
periodical  payments  for  the  support  of  the 
wife,  based  upon  her  needs  as  they  may  from 
time  to  time  exist  and  upon  the  husband's 
ability  to  pay,  nnd  that  such  payments  shall 
be  modified  In  amount  from  time  to  time  ac- 
cording to  drcumatances  arising  from  chang- 
ing conditions.  The  language  of  the  act  as 
above  quoted  is  essentially  similar  to  that 
of  the  preceding  section  for  the  recovery  of 
alimony  In  a  suit  for  divorce,  and  that  sec- 
tion has  been  held  to  contemplate  only  period- 
ical payments,  and  not  to  Justify  an  order 
for  payment  of  an  amount  in  gross.  Celame 
▼.  Calame,  25  N.  J.  Eq.  548 ;  Lynde  v.  Lynde, 
51  N.  J.  Eq.  473,  85  AU.  641.  In  the  latter 
case  It  Is  said : 

"Her  right  to  support  and  maintenance  con- 
tinues so  long  as  it  ia  Just  that  she  shall  re- 
tain it  It  is  coextensive  with  the  husband's 
position  and  ability.  His  ability  and  the  jus- 
tice of  her  enjoyment  of  her  right  are  subject  to 
change  of  circumstances  wliich  the  court  cannot 
anticipate,  'and  hence  complete  justice  requires 
that  the  court's  power  to  act  shall  be  kept  open 
so  long  as  it  may  be  needed  to  direct  just  vari- 
ation." Id.,  affirmed,  55  N.  J.  Eq.  591,  39  Atl. 
1114. 

It  thus  appears  that,  If  a  payment  to  a 
wife  of  a  sum  In  gross  can  be  agreed  niwn 
by  a  husband  and  wife  In  final  discharge  of 
a  husband's  future  obligation  of   supportt 


the  parties  are  not  otdy  enabled  to  discharge 
by  stipulation  the  performance  of  an  exist- 
ing and  permanent  matrimonial  duty  of  the 
husband  in  a  manner  wiilch  the  court  could 
not  authorize  with  the  parties  before  It,  but 
in  a  manner  that  obviously  defeats  or  tends 
to  defeat  the  primary  purpose  of  the  stat- 
ute to  protect  the  wife  frcMn  future  want. 

[2]  But,  while  the  right  of  spouses  to  con- 
tract touching  the  discharge  of  this  matri- 
monial duty  of  the  husband  cannot  be  regard- 
ed as  unrestricted,  I  thlnli  It  unnecessary  to 
here  determine  that  all  such  agreements  are 
▼old  or  should  be  wholly  disregarded.  A 
settlement  upon  a  wife  of  a  fixed  and  cer- 
tain income  for  her  life  would  accomidlsh 
the  purposes  of  the  act  in  so  far  as  the  In- 
come should  be  found  adequate,  and  the  pay- 
ment of  a  gross  amount  might  In  some  dr- 
cumstances  be  treated  as  relieving  a  hus- 
band from  his  obligation  of  support  to  what- 
ever extent  should  lie  found  Just  under  the 
circumstances.  But  where,  as  here  at  this 
time,  the  wife  comes  l>efore  the  court  in  a 
destitute  condition,  and  the  husband  claims 
as  a  bar  to  his  liability  a  settlement  for 
$760  of  a  decree  under  which  there  would  at 
this  time  have  been  paid  o\ee  $5,000  bad  the 
decree  been  complied  with,  I  think  It  clear 
that  the  payment  so  made  by  him  by  way  of 
settlement  of  future  liability  must  be  wholly 
disregarded.  Aside  from  any  question  of 
public  policy  which  may  be  Involved,  the 
money  which  was  paid  in  settlement  of  fu- 
ture liabllty  was  In  amount  ohviously  too 
unreasonable  and  unjust  to  afford  a  bar  at 
this  time  in  a  case  of  this  nature. 

Nor  am  I  able  to  give  any  force  to  the 
proTlsions  of  the  settlemmt  agreement  pro- 
viding that  defendant  may  live  separate  and 
apart  from  his  wife.  At  the  time  that  agree- 
ment was  signed  he  was  a  deserter  of  his 
wife,  and  so  adjudged  by  the  court  decree 
then  existing.  His  continued  absence  from 
her  has  not  been  In  the  slightest  degree  oc- 
casioned or  Influenced  by  any  consent  upon 
his  wife's  part  to  that  effect  No  proffer 
on  his  part  has  l>een  made  at  the  hearing  or 
at  any  other  time  to  live  with  his  wife  or  to 
support  her  at  his  home  or  elsewhere.  His 
sole  defense  Is  that  the  settlement  agreement 
has  absolved  lilm  from  the  duty  of  support 

Complalnant^s  long  delay  since  the  settle- 
ment in  seeking  the  aid  of  this  court  has  In 
no  way  arisen  from  any  understanding  on 
her  part  that  she  had  by  any  agreem^it 
Or  settlement  discharged  her  husband  from 
liability  for  future  alimony  or  bad  in  any 
way  agreed  that  he  should  be  privileged  to 
live  separate  trom  her.  At  all  times  since 
the  $750  was  paid  her  conduct  has  been 
consistent  with  her  belief  that  the  payment 
which  was  made  was  of  hack  alimony.  Since 
that  time  she  has  been  persistently  going 
from  attorney  to  attorney  without  success 
seeking  one  who  would  enforce  her  claim. 
Finally  an  appeal  to  the  dianoellor  secured 


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426 


101  ATLANTIO  BEPORTBB 


{S.J. 


for  her  a  BoUdtor,  and  this  suit  Is  the  re- 
sult. 

The  former  suit  and  decree  was  for  com- 
plainant's support,  and  did  not  include  the 
support  of  complainant's  daughter.  The  set- 
tlement agreement  did  not  by  its  terms  exon- 
erate defendant  from  liability  for  the  support 
of  the  daughter.  This  suit  seeks  a  decree 
compelling  defendant  to  contribute  to  the  sup- 
port of  both  complainant  and  their  daughter, 
who  resides  with  complainant.  The  evidence 
discloses  that  defendant's  pecuniary  resourc- 
es are  at  the  present  time  considerably  less 
than  when  the  former  decree  was  entered. 
He  is,  however,  in  my  Judgment,  well  able 
to  pay  $5  per  week.  That  amount  Is  an  ap- 
propriate amount  for  him  to  pay  for  the 
support  of  the  daughter  alone,  but  I  do 
not  feel  justified  In  ordering  payment  of 
more  than  that  amount  In  view  of  defendant's 
present  pecuniary  condition. 

1  win  accordingly  advise  a  decree  requir- 
ing defendant  to  pay  $5  per  week  for  the 
support  of  complainant  and  his  daughter, 
and  also  an  aggregate  counsel  fee  for  com- 
plainant's counsel  of  $50. 


RICCIO   T.    RICX3I0.      (No.    40/750.) 

(Covrt  of  Chancery  of  New  Jersey.    June  29, 
1017.) 

Pabtitior  €=»12a)— Tenancy  bt  Entibett 

—Sale. 
If  a  sale  of  premises  held  by  husband  and 
wife  as  tenants  by  the  entirety  be  decreed  in  a 
suit  for  partition,  it  must  not  be  an  absolute 
sale,  but  must  be  limited  to  the  right  of  posses- 
sion during  the  joint  lives  of  both  parties,  that 
the  rixht  of  survivorshin  may  not  be  affected  in 
any  way. 

[Ed.  Note.— For  other  cases,  see  Partition, 
Cent.  DiK.  (  39.) 

Actlcm  between  Josle  Rlcdo  and  Gaetano 
Ricdo.    Decree  for  complainant 

Eugene  Dotto  and  Philip  J.  Schotland,  both 
of  Newark,  for  complainant  Rlker  &  Rlker 
and  Richard  Hartshorne,  all  of  Newark,  for 
defendant 

FOSTER,  V.  C,  This  Is  an  action  for  the 
partition  by  absolute  sale  of  certain  real 
estate  in  the  city  of  Newark  owned  by  the 
parties  who  are  husband  and  wife.  On  the 
hearing  It  was  established  that  the  parties 
were  married  on  October  27,  1808,  that  they 
have  three  children,  and  that  as  a  result  of 
quarrels  they  separated  about  May  1,  1916. 

Complainant  before  her  marriage  worked 
as  a  button  hole  maker,  and  continued  to  do 
some  of  this  work  after  her  marriage,  from 
time  to  time,  and  claims  to  have  paid  pert  of 
the  purchase  money  of  the  property  from  her 
work.  Defendant  is  a  tailor  and  claims  to 
have  paid  all  of  the  purchase  price,  over  the 
amount  of  the  money  borrowed  on  mortgage, 
from  his  savings.    About  May  20,  1902,  the 


parties  purdiased  the  premises  in  question 
for  $2,500.  Of  this  sum  $2,200  was  obtained 
on  mortgage  from  a  building  and  loan  associ- 
ation, and  complainant  claims  that  she  and 
defendant  each  contributed  $200  to  make  up 
the  balance  of  the  purchase  money  and 
to  pay  for  searches  and  other  expenses  con- 
nected with  the  passing  of  title.  Defendant 
denies  that  complainant  contributed  any 
money  for  these  purposes  and  claims  that  he 
furnished  all  the  money  required  to  complete 
the  purchase  above  the  amount  obtained  on 
the  mortgage  and  to  carry  the  property.  The 
deed  for  the  property  conveys  it  to  the  par- 
ties as  "Gaetano  Rlcdo  and  Josle  Rlcdo,  his 
wife." 

Complainant  dalms  that  a  mistake  was 
made  In  the  deed  In  thus  designating  herself 
and  her  husband,  the  defendant,  as  tenants 
by  the  entirety,  and  that  It  violated  the 
agreement  she  bad  made  with  her  husband 
regarding  the  form  In  which  they  should 
take  title,  which  was,  that  they  each  should 
oontrlbute  one-half  of  the  purchase  price  and 
an  equal  share  for  the  maintenance  of  the 
property,  and  that  they  should  be  equal  part- 
ners in  the  ownership  of  the  property,  and 
that  they  were  to  be  tenants  In  common  In 
the  ownership  of  the  property.  Defendant 
denies  this  and  claims  there  was  a  mistake 
made  In  the  form  of  the  deed ;  that  when  he 
purchased  the  property  he  was  unfamiliar 
with  real  estate  transactions;  that  in  ex- 
amining the  deed  under  whidi  his  grantors 
held,  he  noticed  It  was  made  to  "Justus 
Schneider  and  Philliplna  Sdinelder,  his 
wife,"  and  he  directed  or  consented  to  hav- 
ing his  deed  made  out  In  the  same  way,  as- 
suming that  was  the  legal  way  it  should  be 
done;  that  he  has  paid  the  purchase  price 
for  the  property  and  the  expenses  of  its  main- 
tenance ;  and  that  he  Intended  that  the  only 
interest  complainant,  as  his  wife,  should  have 
In  the  property  was  such  as  the  laws  of  the 
state  gave  her. 

The  impression  made  upon  me  at  the  hear- 
ing was  that  the  claim  of  a  mistake  In  the 
deed  was  an  afterthought  on  the  part  of  both 
parties  which  had  arisen  because  of  the  seri- 
ous dlflerences  between  them.  These  dif- 
ferences it  seems  cannot  be  recondled,  as 
complainant  claims  defendant  assaulted  and 
stabbed  her,  and  defendant  claims  complain- 
ant since  her  separation  from  him  has  been 
living  in  adultery  with  another  Italian. 

Counsel  for  complainant  apparently  take 
somewhat  the  same  views  of  the  facts  that 
I  have  because  they  contend  that  if  It  Is 
not  established  that  a  mistake  was  made  In 
the  deed  as  claimed,  and  If  It  be  found  that 
the  parties  are  tenants  by  the  entirety,  never- 
theless there  should  and  can  be  a  partition  of 
the  property  under  the  facts  and  on  the  au- 
thority of  Schulz  V.  Ziegler,  80  N.  3.  Bn.  199, 
83  AU.  9CS,  42  L.  R.  A.  (N.  S.)  98. 

My  consideration  of  the  oplnlcm  of  Vice 


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427 


Chancellor  (now  Chancellor)  Walker  in  this 
case  and  of  the  opinion  of  Mr.  Justice  Parker 
In  speaking  for  the  Coort  of  Errors  and  Ap- 
peals In  affirming  the  Vice  Chancellor's  de- 
termination shows  that  it  does  not  entirely 
sustain  complainant's  contention  or  sanction 
the  relief  to  the  extent  asked  for  in  her  bill. 
Justice  Parker,  speaking  for  the  court,  said: 
"We  bold,  therefore,  that  by  virtue  of  an  es- 
tate by  entireties,  as  modified  by  the  married 
woman's  act,  the  seisin  of  husband  and  wife 
durinx  the  joint  lives  is  essentially  a  tenancy  in 
common,  terminated  on  the  death  of  either,  with 
remainder  in  fee  to  the  survivor;  and  that  the 
right  of  the  husband  may  be  transferred  by  bim 
to  a  third  party  who  thereby  becomes  tenant  in 
common  for  the  joint  lives  in  the  husband's 
place;  and  that  partition  may  be  bad  between 
such  purchaser  and  the  wife  of  this  tenancy  in 
common,  but  without  affecting  in  any  way  the 
common-law  right  of  survivorship." 

It  will  be  observed  from  this  statement 
of  the  law,  that  if  a  sale  of  the  premises  be 
decreed  it  must  not  be  an  absolute  sale,  but 
must  be  limited  to  the  right  ctf  possession 
during  the  joint  lives  of  complainant  and  de- 
fendant, in  order  that  the  right  of  survivor- 
ship may  not  be  affected  in  any  way. 

The  prayer  of  the  bill  in  asking  for  an  ab- 
solute sale  of  the  premises  and  the  payment 
to  complainant  of  one-half  of  the  amount 
realized  therefrom  over  the  amount  of  the 
present  incumbrances  thereon,  as  her  share 
of  the  property  is  too  broad,  but  a  sale  of  the 
right  of  possession  during  the  Joint  lives  of 
the  parties  will  be  advised,  and  an  accounting 
may  be  token  of  the  Income  received  from 
and  the  expenses  incurred  in  carrying  the 
property.  Counsel  will  be  heard  if  desired 
on  the  period  to  be  covered  in  the  accounting. 


cm  N.  J.  Law.  W) 
BOROUGH  OF  HADDON  HEIGHTS  v. 
HUNT. 

(Supreme  Court  of  New  Jersey.    April  25, 
1917.) 

LiCENSKS  «=s>7(l)  —  Peddlinq  —  Occtn>ATioi» 

Tax— PoLicB  Poweb. 
An  ordinance  making  it  unlawful  for  one 
to  peddle  in  a  certain  borough  without  a  li- 
cense anything  except  products  of  ids  own 
raising  or  articles  of  his  own  manufacture,  but 
exempting  all  persons  having  a  regular  place 
of  bnatneas  or  residence  witliin  the  borough  and 
paying  taxes  therein,  unless  they  are  SGliing 
goods  of  persons  not  residents  and  taxpayers 
in  the  borough,  is  invalid;  the  ground  of  ex- 
emption being  arbitrary. 

[Ed.    Note.— For    other    cases,    soe    Ucenses, 
Cent.  Dig.  H  7,  19.] 

Samuel  P.  Hunt  was  convicted,  and  brings 
certiorarL    Conviction  set  aside,  with  costs. 

The  following  Is  the  ordinance  in  question: 
Section  1.  It  shall  be  unlawful  for  any  per- 
son to  hawk  or  peddle  or  exiwse  for  sale  housse 
to  bouse  in  the  borough  of  Haddon  Heights  any 
goods,  wares  or  mercliandiso  of  any  description, 
excepting  products  of  his  or  her  own  roising, 
or  articles  of  his  or  her  own  manufacture,  or 
to  drive,  push  or  pull  any  peddler's  cart  or  wag- 


on within  said  borough  for  that  purpose  with- 
out a  license  for  that  purpose  first  had  and 
obtained.  All  persons  who  shall  go  from  house 
to  house  and  sell  on  orders  or  by  sample  any 
goods,  wares  or  merchandise  to  be  afterwards 
delivered,  shall  be  considered  as  hawkers  and 
peddlers  within  the  meaning  of  this  ordinance, 
and  shall  be  subject  to  the  conditions  and  pen- 
alties herein  provided:  Provided,  liowcver,  that 
no  person  or  persons  having  a  regular  place  of 
business  or  residence  within  the  limits  of  the 
said  borough  of  Haddon  Heights,  and  paying 
taxes  thereon,  shall  be  subject  to  any  of  the 
said  conditions  or  penalties,  unless  be,  she  or 
they  are  selling  the  goods  of  persons  who  are 
not  residents  and  taxpayers  of  said  borough. 

Argued  before  GARRISON,  J.,  sitting  aUwe 
pursuant  to  the  statute. 

Cyrus  D.  Marter,  of  Camden,  for  prosecu- 
tor. Jess  &  Rogers,  of  Camden,  for  defend- 
ant 

GARRISON,  J.  The  ordinance  U  inflrm, 
whether  the  occupation  tax  be  a  police  or  a 
revenue  measure,  for  the  reason  that  there  is 
no  rational  connection  between  the  occupa- 
tion that  is  taxed  and  the  conditions  that 
exempt  from  such  tax. 

Residence  in  the  borough  is  admittedly  not 
enough,  and  having  a  regular  place  of  busi- 
ness is  on  the  same  footing,  in  the  absence  of 
a  requirement  that  the  business  conduct  at 
such  place  shall  bear  some  relation  to  the 
wares  so  peddled. 

To  exempt  a  peddler  of  produce  because 
he  had  a  music  store  or  a  photograph  gallery 
would  be  arbitrary  in  the  extreme.  Wheth- 
er or  not  such  suggested  requirement  would 
meet  this  defect  is  not  up  for  decision. 

The  payment  of  real  estate  taxes  on  a  resi- 
dence or  place  of  business  affords  no  basis 
for  exemption  from  an  occupation  tax;  the 
two  imposts  are  entirely  nnrelated.  A  non- 
resident might  own  and  pay  taxes  on  all  the 
real  estate  In  the  borough  and  still  be  re- 
quired to  pay  this  occupation  tax. 

The  grounds  of  exemption  being  thus  arbi- 
trary and  illusory,  the  ordinance  falls  to 
support  the  conviction,  which  la  set  aside, 
with  costs. 

(N  N.  J.  Law,  341) 
8TATD  T.  NONES.     (No.  8.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
March  5,  1017.) 

Error  to  Supreme  Court. 

Charles  A.  Nones  was  ccmvicted  of  crime,  and 
brings  error  to  the  Supnnne  Court  to  review  a 
judgment  aflSrming  bis  conviction.     Affirmed. 

For  opinion  of  the  Supreme  Court,  see  88  N. 
J.  Law,  460,  97  AU.  66. 

Borden  D.  Whiting,  of  Newark,  for  plaintiff 
in  error.  Jacob  li.  Newman,  of  Newaric,  for 
the  State. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Justice 
Swayze  in  the  Supreme  Court,  88  N.  J.  Law, 
460.  97  AU.  66. 


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101  ATLANTIC  RBPORTEB 


(B.I. 


(40  R.  I.  477) 

STONE  T.  NORMS.    (No.  888.) 

(Supreme    Court   of   Rhode   Island.     July    B. 
1917.) 

1.  Taxation  €=3329  —  Asse8Smeitt  —  Suffi- 

CIENCr. 

Gen.  Laws  1909,  c.  58,  i  6,  requiring  taxpay- 
ers to  describe  their  persoDalty,  etc.,  is  direc- 
tory merely,  since,  if  such  accounts  ar«  not 
filed,  the  assessors  may  fix  its  value. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  §{  640,  650.] 

2.  E3:.ECTioNB   <S=s>S3  —  QuAuncATiONS   or 
VoTEKa— Payment  of  Taxes. 

Under  Const,  art.  2,  {  2,  providing  that  only 
persons  who  have  paid  a  tax  assessed  against 
their  property  can  vote  for  city  councilmen,  etc., 
persons  paying  personal  property  taxes  are  qual- 
ified electors,  although  the  assessments  did  not 
describe  their  personalty,  since  Gen.  Laws  1909, 
c  58,  does  not  require  the  assessors  to  describe 
personalty  upon  the  taxpayer's  failare  to  do  so. 
[Ed.  Note.— For  other  cases,  see  Electionai 
Cent  Dig.  H  77-81.] 

Petition  In  equity  in  tibe  nature  of  quo  waiv 
ranto,  under  Gen.  Laws  1909,  c.  328,  by 
Charles  H.  Stone  against  Walter  W.  Norrta. 
Petition  denied  and  dismissed. 

Edward  M.  Sullivan,  Francis  B.  SuUivan, 
and  John  J.  Sullivan,  all  of  Providence,  for 
petitioner.  Frank  H.  Wildes,  of  Provideace, 
fk>r  respondent. 

BAKER,  J.  Charles  H.  Stone,  of  the  dty 
of  Cranston,  in  this  state,  by  this  his  peti- 
tion in  equity  in  the  nature  of  quo  warranto, 
filed  under  the  provisions  of  chapter  328  of 
the  General  Laws,  brings  in  question  the  title 
of  the  respondent,  Walter  W.  Norris,  to  the 
office  of  third  councilman  ot  the  Fourth  ward 
of  said  city  for  the  term  ot  two  years,  com- 
mencing the  first  Monday  in  January,  1917. 
The  petition  alleges  that  said  respondent  and 
himself  were  opposing  candidates  for  the 
office  of  third  councilman  from  said  fourth 
ward  at  the  election  held  November  7,  1916; 
that  on  the  following  day  the  city  council  of 
said  dty  in  accordance  with  law  counted  the 
ballots  cast  in  said  election  for  said  office, 
and  declared  the  result  of  such  election  to  be 
that  the  respondent  had  been  elected  over 
the  petitioner  by  a  plurality  of  114  votes; 
that  thereafter  the  aald  Walter  W.  Norris  on 
the  first  Monday  of  January,  1917,  was  duly 
sworn  and  engaged  as  Incumbent  of  said 
oflice  of  councilman,  and  now  holds  the  same. 
The  petition  further  alleges  that  the  names 
of  a  number  of  persons  participating  in  said 
election,  not  qualified  so  to  do  and  sufficient 
to  determine  the  result  of  said  election,  "were 
placed  upon  the  tax  rolls  of  said  city  by 
the  assessors  of  taxes  of  said  city  without 
any  description  of  the  several  properties  of 
said  persons  respectively  possessed  or  claim- 
ed to  be  possessed"  by  them.  By  the  bill  of 
particulars  subsequently  furnished  by  the  pe- 
titioner the  names  of  124  persons  assessed  as 
aforesaid  are  given  as  participating  in  the 
election  of  third  councilman  for  said  Fourth 


ward  on  November  7th  last    The  petition 

also  alleges  that: 

"Said  pretended  aasessment  is  in  violation 
of  section  2  of  article  2  of  the  Constitution  of 
the  state  of  Rhode  Island" 

— which  provides  that: 

"No  person  shall  at  any  time  be  allowed  to 
vote  in  the  election  of  the  city  conncil  of  any 
dty,  or  upon  any  proposition  to  impose  a  tax 
or  for  the  expenditure  of  money  in  any  town  or 
dty,  unless  he  shall  within  the  year  next  pre- 
ceding have  paid  a  tax  assessed  upon  his  prop- 
erty therein,  valued  at  least  at  one  hundred  and 
tUrty-fonr  doUara." 

It  appears  by  evidence  or  admissions  that 
these  124  persons  were  assessed  in  1916  by 
the  tax  assessors  of  Cranston  for  either  "per- 
sonal estate"  or  "personal  property"  in  vary- 
hig  amounts  from  $196  to  $6,000,  the  moat  of 
them  for  tangible  personal  property  only,  a 
few  for  intangible  personal  property  only, 
and  one  for  both  kinds,  and  that  all  of  them 
duly  paid  the  taxes  assessed  against  them. 
The  petitioner's  claim  is  that  the  words  "tax 
assessed,"  in  section  2  of  article  2  of  the  state 
Constitution,  means  a  tax  legally  assessed, 
and  that  as  the  tax  rolls  of  Cranston  "did 
not  contain  any  description,  or  even  mention, 
of  the  personal  property  for  the  payment  of 
a  tax  upon  which  any  such  person  claimed 
the  right  to  vote,"  the  assessment  as  to  all 
of  them  was  illegal,  and  as  a  consequence 
they  were  not  legally  entitled  to  vote ;  that 
as  the  number  of  such  voters  exceed  the  plu- 
rality declared  to  have  been  received  by  the 
respondent,  and  inasmuch  as  it  Is  not  xrassible 
to  determine  and  prove  who'Vas  chosen  coun- 
dlman  by  tlie  admittedly  legally  qualified 
voters  at  said  election,  he  prays  this  court  to 
declare  said  election  to  be  null  and  void  and 
to  order  a  new  election  for  said  office  of  third 
councilman.  The  respondent  has  moved  the 
dismissal  of  the  iwtitlon  on  various  grounds 
which  we  do  not  deem  It  necessary  to  now 
set  out. 

The  petitioner  does  not  question  in  any 
way  the  acts  of  the  board  of  canvassers,  or 
of  the  acts  of  the  tax  assessors  other  than 
the  one  already  stated,  or  the  quallflcationa 
of  the  124  as  voters,  except  as  they  may  be 
affected  by  the  alleged  illegality  of  the  assess- 
ment. There  are,  therefore,  but  two  ques- 
tions to  be  oonsideied:  First,  were  the  as- 
sessments Illegal  for  lack  of  description  of 
the  personal  property?  and,  If  Ulegal,  were 
these  124  persons,  after  having  severally  paid 
a  tax  assessed  upon  their  property  in  Cran- 
ston, valued  in  the  assessment  in  access  of 
$134  in  each  instance,  disqualified  as  voters 
at  such  election? 

If  we  consider  the  second  qnesticm  first,  as- 
suming for  the  time  being  that  the  assess- 
ments were  Illegal,  it  is  by  no  means  dear 
that  these  persons  were  disqualified  as  vot- 
ers. The  requirement  of  property  ownership 
as  a  qualification  for  voting,  cmce  so  common, 
has  been  almost  entirely  abandoned.  If  there 
be  precedents  on  the  point,  they   must   be 


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429 


Bonght  In  tbe  early  decisions,  and  we  find 
some  authority  on  this  question.  Article  3 
of  the  Amendments  to  the  Constitution  of 
Massachusetts  provided  that: 

"Every  male  citizen  of  twenty-one  years  of 
age  and  upwards  (excepting  paupers  and  persons 
onder  guardianship)  who  shall  have  resided  with- 
io  the  commonwealth  one  year  •  •  •  and 
who  shall  have  paid  *  *  •  any  state  or  coun- 
ty tax,  which  shall,  within  two  years  next  pre- 
ceding such  election"  (for  general  state  offices) 
"hare  been  assessed  upon  him,  in  any  town  or 
district  of  this  commonwealth,  •  •  •  shall 
have  a  right  to  vote  in  such  election;  •  •  • 
and  no  other  person  shall  be  entitled  to  vote  in 
such  election. 

The  House  of  Bepresentatlves  submitted  a 
question  to  the  Supreme  Judicial  (3oart  as  to 
the  right  to  vote  under  said  article  3  of  a 
person  upon  whom  a  poll  tax  bad  been  assess- 
ed "after  the  annual  assessment  of  taxes." 
The  opinion  of  the  court  in  reply  appears  in 
18  Pick.  (Mass.)  57S.  On  page  578  the  oonrt 
said: 

"We  beg  leave  liot  to  be  understood  as  intend- 
ing to  suggest  that  to  qualify  one  to  vote,  within 
the  provisions  of  the  Constitution,  it  must  ap- 
pear that  the  tax  which  he  has  paid  is  in  all 
Inspects  a  legal  tax,  or  that  it  is  competent  to 
go  behind  the  actual  payment  of  a  tax,  to  in- 
qaire  whether  there  has  or  has  not  been  any 
irregularity  or  illegality  in  the  levying  or  as- 
sessment of  the  taxes.  This  is  a  point  which 
the  person  claiming  the  right  to  vote  is  not 
bound  to  inquire  into,  and  in  most  cases  cannot 
know.  It  is  sufficient  that  he  has  paid  a  tax  de 
facto  levied  and  assessed  upon  him.' 

Later  In  Humphrey  v.  Kingman,  5  Mete. 
<Mass.)  162,  166,  where  the  qvallficatlon  of  a 
voter  was  In  question,  the  court  said: 

"It  is  not  the  mere  payment  of  money  that 
^loalifies  a  man  to  become  a  voter,  but  the  money 
paid  must  be  for  the  discharge  of  a  tax  actually 
assessed  upon  him,  whether  legally  or  illegally." 

[1,2]  But  were  the  assessments  against 
these  124  persons  Illegal  because  the  personal 
property  was  not  described?  The  petitioner 
has  dted  authorities  and  decisions  In  other 
Jurisdictions  holding  that  such  an  assessment 
Is  Invalid.  But  the  statutes  of  different 
states  differ  mudi  in  their  requirements  in 
respect  to  the  levy  and  assessment  of  taxes, 
and  It  Is  only  where  such  statutes  are  sub- 
stantially like  our  own  that  decisions  In  oth- 
er Jurisdictions  have  persuasiveness  as  au- 
thorities. The  requirements  of  our  own  stat- 
utes, as  applied  to  the  admitted  facts,  are  to 
determine  the  legality  or  illegality  of  these 
assessments.  Chapter  58  of  the  General 
Laws  prescribes  the  method  of  assessing 
taxes.  Section  4  imposes  the  duty  upon  the 
assessors  of  assessing  and  apportioning  "any 
tax  on  the  Inhabitants  of  the  town  and  the 
ratable  property  therein"  as  ordered  by  the 
town.  Section  6  relates  to  the  giving  of  no- 
tice of  the  time  and  place  of  making  the 
assessment,  providing  that: 

Such  notice  "shall  require  every  person  and 
body  corporate  liable  to  taxation  to  bring  in  to 
the  assessors  a  true  and  exact  account  of  all 
his  ratable  estate,  describing  and  specifying  the 
value  of  every  parcel  of  his  real  and  personal 
-estate,  at  ancta  times  as  they  may  prescribe." 


Section  7  Is  as  follows: 

"ISvcry  person  bringing  in  any  such  account 
shall  make  oath  before  some  one  of  the  assessors 
that  the  account  by  him  exhibited  contains  to  the 
best  of  his  knowledge  and  belief  a  true  and  full 
account  and  valuation  of  all  his  ratable  estate; 
and  whoever  neglects  or  refuses  to  bring  in  such 
account,  if  overtaxed,  shall  have  no  remedy 
therefor." 

Section  8,  as  amended  by  section  43  of 
chapter  769  of  the  Public  Laws  of  1912  Is  as 
follows: 

"The  assessors  shall  make  a  list  containing  the 

true,  full  and  fair  cash  value  of  all  the  ratable 
estate  in  the  town,  placing  land,  buildings  and 
other  improvements,  tangible  personal  property, 
and  intangible  personal  property,  in  separate 
polumns,  auO  distinguishing  those  who  give  in  an 
account  from  those  who  do  not,  and  shall  appor- 
tion the  tax  accordingly." 

Section  4  of  chapter  57  of  the  O^ieral  Laws 
provides  that: 

"Taxes  on  real  estate  shall  be  assessed  to  the 
owners,  and  separate  tracts  or  parcels  shall  be 
separately  described  and  valued  as  far  as  prac- 
ticable." 

Chapter  57  has  numerous  provisions  as  to 
the  place  in  which  and  the  persons  to  whom 
personal  property  of  different  kinds  shall  be 
taxed,  but  there  is  no  statutory  provision 
slmUar  to  the  one  relating  to  real  estate  re- 
quiring a  separate  description  and  valuation 
of  personal  property. 

It  Is  true  that  as  to  certain  corporations, 
which  under  the  statutes  are  exempt  from 
taxation  for  personal  property,  except  cer- 
tain kinds  thereof  as  named  In  the  statute, 
this  court,  from  the  necessities  of  the  case. 
In  order  to  avoid  double  taxation,  has  held 
that  the  assessment  roll  should  show  that 
such  corporation  had  been  assessed  <»ily  for 
such  kind  of  personal  property  as  It  was 
taxable  for  under  the  statute.  Dunnell  Mfg. 
Co.  V.  Newell,  16  B.  I.  233,  2  Atl.  766;  Rum- 
ford  Chemical  Works  v.  Bay,  19  R.  I.  302, 
33  AtL  443;  Newport  Beading  Boom  and 
Hlgbee,  Petitioners,  21  R.  I.  440,  44  AU.  511. 
Such  cases  are  special  In  character  and  ap- 
plication. The  provision  of  our  statute  re- 
quiring "every  person  and  body  corporate 
Uable  to  taxation  to  bring  In  a  true  and 
exact  account  of  his  ratable  estate,  describ- 
ing and  specifying  the  value  of  every  parcel 
of  his  real  and  personal  estate,"  is  merely 
directory,  as  when  there  is  default  In  bring- 
ing in  sucii  account  the  assessors  are  clothed 
with  no  authority  to  summon  in  such  delin- 
quents and  compel  disclosure,  as  Is  the  case 
in  some  states.  In  such  case  it  Is  the  right 
and  duty  of  the  assessors  to  proceed  to  as- 
certain the  nature  and  extent  of  such  per- 
sons' taxable  property  from  the  sources  of 
information  at  their  command  and  to  place 
a  valuation  upon  It  according  to  their  best 
Judgment.  37  Cyc.  995.  The?  have  the  means 
of  obtaining  definite  Information  as  to  the 
ownership  of  real  estate  by  examining  the 
land  records,  and  of  ascertaining  Its  ap- 
proximate value  In  the  market,  and  according- 
ly the  requirements  of  section  4,  chapter  57, 
supra,  as  to  separate  descriptions  and  ralua- 


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101  ATLANTIC  RBPORTBE 


<H,I. 


tlons  of  separate  tracto  or  parcels  of  real  es- 
tate are  practicable  and  reasonable.  But  It 
Is  a  practical  Impossibility  for  assessors  to 
correctly  ascertain  the  extent,  character,  and 
particulars  of  an  individuars  ownership  of 
personal  property  when  he  brings  in  no  ac- 
count thereof;  and  to  require  them  to  par- 
ticularly describe  sndi  personal  estate  In 
the  assessment  roll,  without  first  clothing 
them  with  power  to  ascertain  of  what  It  con- 
sists, would  be  unreasonable  and  futile.  Our 
statute  does  not  require  it.  Chapter  58  of- 
fers the  inducement  to  bring  in  a  sworn  ac- 
count of  taxable  property  by  providing  for 
such  persons  as  do  bo  a  remedy  for  over- 
taxation. At  the  same  time  it  provides  as 
a  penalty  or  disadvantage  for  the  one  re- 
fusing or  neglecting  to  bring  in  an  account  in 
that  he  is  without  remedy  if  overtaxed. 
Coventry  Co.  v.  Assessors  of  Taxes,  16  R.  I. 
240,  14  Atl.  877;  Tripp  v.  Torrey,  17  R.  I. 
S59,  22  Atl.  278.  There  is  remedy  for  such 
person  for  illegal  taxation  only,  as  when  he 
has  no  ratable  or  taxable  estate.  Hall  v. 
Bain,  18  R.  I.  413,  28  Aa  371,  is  a  case  of  il- 
legal taxation,  although  in  that  case  the 
plaintifF  had  brought  in  an  account.  See,  also, 
!Newport  Reading  Room  and  Hlgbee,  supra. 

In  the  case  of  a  person  having  taxable  per- 
sonal estate  and  rendering  no  account  to  the 
assessors,  it  could  be  of  no  possible  advantage 
to  him  to  specify  and  describe  on  the  assess- 
ment roll  the  property  on  which  he  is  asses*- 
ed,  as  he  is  without  remedy  in  any  event 
The  law  as  to  assessment  of  taxes  in  Massa- 
chusetts in  its  main  features  is  similar  to 
oar  own,  although  it  requires  specification  on 
the  assessment  roll  of  certain  kinds  of  per- 
sonal estate.  In  Noyee  v.  Hale,  137  Mass. 
266,  on  page  270,  the  court  said: 

"If  a.  person  who  is  liable  to  be  taxed  in  a 
town  for  personal  property  does  not  bring  in 
a  list  of  such  property  to  the  aasessors,  as 
provided  by  law,  it  is  their  duty  to  ascertain, 
as  nearly  as  possible,  the  particulars  thereof,  and 
to  'make  an  estimate  thereof  at  its  just  value, 
according  to  their  best  information  and  belief. 
Qen.  Sts.  c.  11,  J  27;  Pub.  Sta.  c.  11,  S  41.  If 
t^ey  are  unable  to  ascertain  the  particular  kinds 
or  Items  of  such  taxable  personal  property,  an 
estimate  of  it  may  be  made  as  'personal  proper- 
ty,' without  any  enumeration  of  particulars. 
This  practice,  we  believe,  prevails  widely ;  and 
Indeed  it  appears  to  be  necessary,  in  view  of  the 
manner  in  which  much  taxable  personal  property 
is  now  commonly  held,  of  the  ease  and  frequency 
with  which  it  is  transferred,  and  of  the  practical 
impossibiiity  of  ascertaining  correctly  the  partic- 
ulars of  an  individual's  investments  and  proper- 
ty without  as  well  as  within  the  state  on  any 
given  day.  Such  appears  to  have  l>een  the  meth- 
od which  was  sanctioned  in  Bates  v.  Boston,  S 
Gush.  93,  and  a  similar  method  in  respect  to 
real  estate  was  approved  in  Tobey  v.  Wareham, 
2  Allen,  594.  The  requirement  of  Pub.  St  c. 
11,  §  43,  that  the  assessors  shall  specify  the 
amount  of  each  of  several  classes  of  taxable 
personal  property,  namely,  money  at  interest 
and  other  debts  due,  money  on  band  including 
deposits,  public  stocks,  and  securities,  and  stocks 
In  corporations  without  the  state,  did  not  ex- 
ist until  1879.  It  was  adopted  chiefly  for  statis- 
tical purposes;   it  of  coarse  extends  only  to  so 


moch  of  the  enumerated  classes  as  the  assessors 
may  be  able  to  ascertain :  it  does  not  include  all 
taxable  kinds  of  personal  property;  and  a  com- 
pliance with  it  is  not  essential  to  the  validity  of 
a  tax.  See  Sprague  v.  Bailey,  19  Pick.  436, 
441;  Lincoln  v.  Worcester,  8  Cush.  55,  63. 
The  existence  of  that  requirement  by  no  means 
precludes  assessors  from  assessing  a  tax  upon 
'personal  property,'  when  they  are  unable  to  as- 
certain the  items  of  whidi  such  personal  proper- 
ty is  composed." 

See,  also,  Lamson  Consolidated,  etc,  Co. 
V.  Boston,  170  Mass.  354,  49  N.  E.  630. 

We  are  of  the  opinion,  therefore,  that  the 
taxes  assessed  against  the  124  persons  named 
were  not  illegally  assessed  l>ecause  the  per- 
sonal property,  tangible  or  Intangible,  for 
which  they  respectively  were  assessed,  was 
not  described  on  the  assessment  roll. 

One  of  the  grounds  of  the  motion  to  dis- 
miss Is  that  the  petition  should  have  been 
brought  In  the  name  of  the  Attorney  General, 
as  the  petitioner  Is  not  a  claimant  of  the 
office  of  councilman,  and  in  his  brief  the 
defendant  cites  Ney  v.  Whitley,  26  R.  I.  464, 
59  Atl.  400,  on  that  point  Without  decid- 
ing the  point  we  have  thought  it  proper  to 
consider  the  questions  presented  by  the  pe- 
tition and  to  express  our  opinion  thereon,  as 
from  its  allegations  It  seems  apparent  that 
the  same  question  could  be  raised  as  to  sever- 
al other  persons  in  Cranston  declared  to  have 
been  elected  to  other  offices  in  that  dty  In 
the  election  held  November  7th  last. 

The  petition  is  denied  and  dismissed. 


(40  B.  I.  619) 
RHODE  ISLAND  HOSPITAL  TRUST  CO. 
et  al.  V.  PECK  et  aL     (No.  389.) 

(Supreme    Court   of   Rhode   Islaod.     July    6, 
1917.) 

1.  PKBPEnrmss  *=»4(21>-;Tbuht»— VAunrrr. 

Under  a  trust,  a  provision  for  the  payment 
of  fixed  sums  eacli  year  for  an  indefinite  period 
to  such  persons  as  shall  from  time  to  time  an- 
swer a  certain  description  violates  the  rule 
against  perpetuities. 

[EM.  Note.— For  other  cases,  see  Perpetuities, 
Cent.  Dig.  {  42.] 

2.  PKBFETnrriEs    «=>4(17)— TBueiB— AnnuaXi 
Pathents — Validitt. 

A  trust  to  pay  a  certain  sum  from  the  in- 
come and  corpus  at  a  stipulated  rate  per  year 
until  exhaustion  of  the  corpus  and  during  the 
lifetime  of  the  trustor's  wife,  or  that  after  the 
wife's  death  the  residue  of  payments  not  due  and 
payable  to  her  should  be  paid  to  the  same  per- 
sons who  would  inherit  real  estate  had  testator 
then  died  intestate,  was  valid  as  to  all  proTiai4MM 
for  the  wife. 

[Ed.  Note.— For  other  casoB,  see  Perpetuitiea, 
Cent.  Dig.  {  34.] 

3.  Pebpbtuitiks    «=»4(21)— Tbubts— Ahhoai. 
Pa  TMENTs— Validity. 

The  provisions  for  disposition  of  the  estate 
after  the  wife's  death  were  void,  since  the  en- 
tire  class  might  not  be  ascertains  bio  within  the 
period  allowed  by  the  rule  against  perpetuities. 
[Ed.  Note.— For  other  cases,  see  Perpetuities, 
Cent.  Dig.  i  42.] 

4.  Tbosts  ®=>275— Income— Disposition. 

Where  testator  created  a  trust  in  favor  of 
his  wife  and  his  heirs,  providing  for  payment 


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RHODE  IBZiATSm  HOSPITAL  TKUST  00.  r.  PEOK 


431 


of  a  stipnlated  tram  annually  from  the  income 
or  the  corpus  as  required,  and  the  income  was 
sufficient  to  provide  a  surplus  over  the  stipulat- 
ed payment,  the  income  should  bo  permitted  to 
accrue  to  provide  for  the  possibility  that  the 
income  might  eventually  become  insufficient  to 
pay  the  stipulated  sums. 

[EM.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  I  393.] 

Certified  from  Superior  Court,  ProTidence 
and  Bristol  Counties. 

Suit  by  the  Rhode  Island  Hospital  Trust 
Company  and  another,  against  Louise  Ia 
Peclc  and  others.  Case  certified  on  questions. 
Questions  answered. 

Argrued  More  PARKBDRST,  G.  J.,  and 
SWEETLAND,  VINCBNT,  BAEBOt,  and 
STEARNS,  JJ. 

Gardner,  Plrce  &  Thomley  and  James  O. 
Collins,  all  of  Providence,  for  complainants. 
William  R.  Tillinghast,  Everltte  S.  Chaffee, 
and  Frederick  A.  Jones,  all  of  Providence, 
for  respondents. 

STEARNS.  J.  This  is  a  suit  In  equity 
praying  for  the  construction  of  the  will  of 
Walter  A.  Peck,  who  died  in  1901,  brought  by 
Rhode  Island  Hospital  Trust  Company  and 
Union  Trust  Company,  trustees  severally 
named  in  said  will,  against  Louise  L.  Peck, 
widow  of  said  Walter  A.  Peck  and  executrix 
of  the  win,  the  three  children  and  ten  grand- 
children of  said  Walter  A.  Peck,  who  are  the 
only  descendants  of  said  testator.  The 
cause,  b^ng  ready  for  final  hearing,  was  cer- 
tified to  this  court  in  accordance  with  chap- 
ter 289,  S  35,  Gen.  Laws  of  R.  L 

By  his  will  the  testator  gave  to  each  of  the 
complainants  the  sum  of  |200,000  to  be  held 
in  trust  upon  identical  trusts.  T^e  only  di- 
rections given  to  the  trustees  In  regard  to  the 
distribution  of  the  income  arising  from  the 
trust  estates,  the  termination  of  the  trusts, 
on  the  final  disposition  of  the  corpus  of  the 
trust  estates  are  as  follows: 

"The  trustee  for  the  time  being  shall  from 
time  to  time  as  often  as  once  in  each  six  months 
daring  the  continuance  of  this  trust  pay  out 
ft«m  the  then  trust  funds  and  property  (in- 
chidiog  accamulations  of  income  aa  well  as  the 
then  corpus  of  the  estate)  at  the  rate  of  seven 
thousand  dollars  ($7,000)  per  year  until  the  prin- 
cipal or  corpus  of  said  trust  estate  and  property 
as  well  as  all  accumulations  of  income  have  been 
ezbaosted. 

"During  the  lifetime  of  my  wife  if  she  survives 
me,  she  is  to  receive  the  same  fractional  share 
of  each  of  said  payments  as  wonld  be  payable 
to  her  upon  an  equal  division  of  said  payments 
between  herself  uid  my  diildren  living  or  rep- 
resented by  living  issue  at  the  time  of  such  pay- 
ments respectively.  For  example,  if  my  family 
consists  of  its  present  members,  one-fourth  (%) 
to  her,  but  if  at  my  death  or  at  any  time  during 
the  term  of  her  life  either  of  my  childrpn  sImhiIH 
die  leaving  no  issue  surviving  or  the  issue  of 
any  deceased  child  should  all  die,  the  fractional 
share  of  my  wife  is  to  be  increased,  from  and 
after  such  occurrence  to  make  her  puyments 
equal  to  that  of  each  of  my  children  then  living. 
And  if  my  wife  survives  me,_and  at  my  death 
or  at  any  time  during  her  life  neither  of  my 
children  nor  any  issue  of  theirs  is  surviving, 
tlie  whole  of  said  payments  shall  be  made  to 


her  as  they  respectively  become  due  and  payable 
during  tho  term  of  her  life. 

"At  all  times  during  the  continuance  of  these 
trusts  the  child,  children  or  descendants  living 
at  the  time,  of  any  child  of  mine  that  has  pre- 
viously deceased  are  to  receive  (per  stirpes)  the 
share  of  income  that  would  have  been  payable 
to  such  child  of  mine  under  this  will  if  such 
child  was  then  living,  and  I  expressly  include 
in  all  the  provisions  of  this  will  any  child  or 
children  of  mine  hereafter  born  whether  in  my 
lifetime  or  not  as  well  as  my  children  now  liv- 
ing. From  and  after  my  decease  if  I  survive 
my  wife,  the  whole  of  said  payments  as  they 
become  payable  shall  be  paid  to  the  same  per- 
sons that  would  inherit  real  estate  from  me  un- 
der the  present  laws  of  the  state  of  Rhode  Island 
had  I  then  died  intestate  and  in  the  same  pro- 
portions that  they  would  inherit  such  real  es- 
tate from  me. 

"And  from  and  after  the  decease  of  my  wife 
If  she  survives  me,  the  residue  of  said  pay- 
ments not  due  and  payable  to  her  as  aforesaid 
shall  be  paid  to  the  same  persons  that  would  in- 
herit real  estate  from  me  under  the  present 
laws  of  the  state  of  Rhode  Island  had  I  then 
died  intestate,  and  in  the  same  proportions  that 
they  would  inherit  such  real  estate  from  me." 

The  trustees  have  paid  out  of  each  trust 
estate  the  sum  of  |7,000  each  year,  one- 
fourth  thereof  to  Louise  L.  Peck,  the  widow, 
and  one-fourth  thereof  to  each  of  the  testa- 
tor's children.  Such  annual  payments  have 
not  exhausted  the  income  received  by  the 
complainants,  respectively,  from  the  trust 
funds,  and  each  of  the  complainants  now 
holds  a  considerable  stun  of  money  repre- 
senting accumulations  of  income  which  are 
not  at  the  present  time  required  to  make  the 
annual  payments. 

The  questions  submitted  may  be  stated  as 
follows:  I.  What  disposition  shall  be  made 
of  the  accumulated  income  now  in  the  hands 
of  the  complainant  trustees?  II.  What  dls' 
position  shall  be  made  of  the  further  income 
and  the  corpus  of  the  estate:  (A)  During 
the  lifetime  of  Louise  L.  Pteck?  (B)  After 
the  death  of  said  Louise  L.  Peck?  The  an- 
swers to  these  questions  are  dependent  upon 
the  intention  of  the  testator  as  expressed  in 
bis  will  except  so  far  as  his  intention  so  ex- 
pressed may  be  found  to  be  contrary  to  the 
rule  against  perpetuities.  The  method  to  be 
followed  In  the  application  of  this  rule  Is 
stated  as  follows  In  Gray  In  section  629  (3d 
Ed.): 

"The  Rule  against  Perpetuities:  The  rule 
against  perpetuities  is  not  a  rule  of  construc- 
tion, but  a  peremptory  command  of  law.  It 
ia  not,  liko  a  rule  of  construction,  a  test,  more 
or  less  artificial,  to  determine  intention.  Its 
object  is  to  defeat  intention.  Therefore  every 
provision  in  a  will  or  settlement  Is  to  he  con- 
strued as  if  tho  rule  did  not  exist,  and  then 
to  the  provision  so  construed  the  rule  is  to  be 
remorselessly  applied." 

[1]  What  was  the  testator's  intention  as 
expressed  In  his  will?  The  trust  provision 
is  unusuaL  The  trustee  Is  directed  to  "pay 
out  from  the  then  trust  funds  and  property 
(including  accumulations  of  income  as  well 
as  the  then  corpus  of  the  estate)  at  the  rate 
of  seven  thousand  dollars  ($7,000)  per  year 
until  the  principal  or  corpus  of  said  tinist 
estate  and  property  as  well  as  all  accumula- 


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101  ATLANTIC  REPORTER 


(E.L 


liona  of  Income  kave  been  exhausted."  Tbls 
lis  the  only  Indication  In  the  will  of  any  at- 
tempt to  fix  definitely  the  termination  of  the 
trust.  There  is  no  direction  for  the  payment 
or  transfer  of  the  corpus  of  the  estate  as 
distinguished  from  the  Income. 

The  intention  of  the  testator  that  the  trust 
should  continue  during  the  life  of  bis  wife  Is 
dear;  that  It  should  not  terminate  at  the 
time  of  her  death  or  at  bis  death.  If  he 
should  survive  his  wife — is  also  apparent 
from  the  clauses  supra.  If  he  survives  bid 
wife,  the  gift  Is  of  "the  whole  of  said  pay- 
ments," and  if  his  wife  survives  him,  the  gift 
after  her  death  is  of  "the  residue  of  said 
payments  not  due  and  payable  to  her."  But 
In  the  clause  providing  for  his  surviving  his 
wife  these  "payments"  are  furtlier  deliued  by 
the  addltl<Hi,  "as  they  become  payable."  In 
each  case  the  gift  over  Is  "to  the  same  per- 
sons that  would  Inherit  real  estate  from  me 
under  the  present  laws  of  the  state  of  Bhode 
Island  had  I  then  died  Intestate" 

It  seems  to  be  dear  that  the  testator  in- 
tended that  the  payments  of  $7,000  per  year 
from  each  trust  should  continue  after  the 
death  of  the  survivor  of  himself  and  his 
wife,  and  that  they  should  be  made  to  those 
persons  who  would  be  entitled  to  Inherit  real 
estate  from  him  at  the  several  times  when 
the  payments  are  made.  The  Intent  at  this 
time  is  not  to  make  an  absolute  gift  of  the 
principal  or  the  Income,  but  only  of  the  pay- 
ments as  they  become  payable  to  persons  who 
answer  the  description  given  at  the  time  of 
each  payment.  The  law  is  well  settled  that  a 
provision,  as  in  this  case,  for  the  payments 
of  fixed  sums  each  year  for  an  indefinite 
period  to  such  persons  as  shall  from  time 
to  time  answer  a  certain  description  is  in 
violation  of  the  rale  against  perpetuities. 
Williams  V.  Herrlck,  19  R.  I.  107,  32  Atl.  913. 
The  effect  on  prior  limitations  of  an  Attempt 
to  create  Interests  which  are  too  remote  Is 
stated  by  Gray,  dted  above,  in  section  247  as 
follows: 

"If  futnre  Interests  created  by  any  instm- 
ment  are  avoided  by  the  nilo  against  perpetui- 
ties, the  prior  interests  become  what  they  would 
have  been  had  the  limitation  of  the  future  es- 
tates been  omitted  from  the  instrument" 

See,  also,  Ooffe  v.  Goffe,  87  B.  L  642,  94 
Att.  2,  Ann.  Ces.  1916B,  240. 

[2]  At  what  time  then  do  the  Interests  in 
these  trust  payments  become  too  remote?  It 
Is  clear  that  the  testator's  Intentiim  that  the 
payments  should  continue  during  the  life  of 
the  wife  can  be  carried  out,  and  that  the 
trust  up  to  the  time  of  the  decease  of  the 
wife  is  valid.  We  also  are  of  the  opinion 
that  the  diildren  during  the  life  of  their 
mother  are  entitled  to  share  equally  In  the 
payments,  and,  In  the  event  of  the  death  of 
any  child  In  the  lifetime  of  the  mother,  the 
children  or  descendants  of  such  deceased 
child  win  take  the  share  of  the  payments 
that  would  have  been  payable  to  the  parent ; 
If  any  of  the  testator's  children  should  die. 


leaving  no  issue  surviving,  In  this  period,  to 
wit,  during  the  life  of  the  wife,  the  payments 
to  the  wife  and  surviving  children  would  be 
Increased  and  divided  equally  as  provided  for 
In  the  wUI ;  and  in  the  event  of  the  death  of 
all  of  testator's  children  without  issue  sur- 
viving, during  the  life  of  the  wife,  the  wife 
would  then  take  the  total  of  all  the  pay- 
ments. 

[3]  Coming  now  to  the  time  of  the  death 
of  the  wife,  said  Louise  L.  Peck,  we  find  a 
gift  of  the  residue  of  said  payments  as  they 
jbecome  due  for  the  benefit  of  a  dass  com- 
posed of  the  persons  who  answer  the  descrip- 
tion of  his  heirs  at  law,  which  Is  to  continue 
indefinitely  as  long  as  any  of  his  diildren  or 
their  descendants  are  living.  There  Is  no 
distinct  and  separate  gift  to  the  testator's 
children  as  such.  Inasmuch  as  this  gift  is  to 
a  class  which  includes  persons  who  might  not 
be  ascertained  until  after  a  life  in  being  and 
21  years  afterward,  it  Is  void  under  the  rule 
that  a  gift  to  a  class  is  void  unless  the  whole- 
class  must  be  ascertainable  within  the  period 
allowed  by  the  rule.  In  re  Hence,  3  Ch.  Dlv. 
U  R.  242  (1891) ;  In  re  Hancock,  1  Ch.  Dlv. 
U  R.  482  (1901) ;  Sledler  t.  Syms,  66  N.  J. 
Eq.  275,  38  AU.  424.  In  the  cases  dted  supra, 
the  courts  recognize  and  afflnn  the  well- 
established  rule  quoted  with  approval  by  the 
court  in  the  Syms  Case,  supra,  56  N.  J.  Eq. 
at  page  279,  at  page  426  of  38  Atl.: 

"When  *  *  *  a  testator  has  made  a  gen- 
eral bequest  embracing  a  great  number  of  pos- 
sible objects,  there  is  no  authority  for  holding- 
that  a  court  can  so  mold  it  as  to  say  that  it  is 
divisible  into  two  classes,  the  one  embracing  the 
lawful  and  the  other  the  unlawful  objects  of  his- 
bounty." 

Applying  this  mle  to  the  case  before  us, 
it  Is  plain  that  the  testator's  diildren  takfr 
nothing  under  this  dause,  and  that  the  en- 
tire limitation  after  the  decease  of  the  wife 
Is  void.  The  trust  is  valid  during  the  life 
of  the  wife,  and  as  the  bequest  to  the  heirs  Is 
void,  the  property  held  In  trust  by  the  trus- 
tees will  pass  under  the  residuary  clause 
of  the  will  quoted  above  Into  the  residue,  and 
will  then  belong  to  tho  estate  of  Mrs.  Peck. 
In  Gray,  supra.  In  the  footnote  at  bottom  of 
page  230,  after  dting  authorities,  the  author 
says: 

"There  is  so  question  that  personal  property 
Included  in  a  void  bequest  goes  to  the  residuary 
legatee." 

See,  also,  Woodward  ▼.  Congdon,  34  B.  I. 
316^  83  Atl.  433,  Ann.  Cas.  1914C,  809. 

[4]  In  regard  to  the  surplus  Income  we  are 
of  the  opinion  that  this  should  be  retained 
in  the  trust  funds  until  the  termination  of 
the  trust  at  the  death  of  Louise  U  Pe<^ 
There  are  no  instructions  to  the  trustees  to- 
accumulate.  The  Intention  of  the  testator 
is  to  make  sure  that  the  trustees  shall  have 
$7,000  a  year  to  distribute,  and  the  reference 
to  accumulations  and  the  induslon  thereof 
In  the  trust  fund  are  Incidental  to  the  main 
purpose  of  the  testator  as  above  mentionei). 
At  the  time  when  the  wiU  was  made  tlie- 


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STATK  ▼.  UNITED  BBOEBRAaE  CX). 


433 


income  from  trust  fnnds  was  considerably 
leas  than  it  is  to-day.  The  trustees  were  giv- 
en broad  powers  in  the  management  of  the 
trusts  and  the  change  of  investments.  The 
testator  undoubtedly  had  in  mind  the  possibil- 
ity of  loss  from  the  use  of  these  powers  by 
the  trustees,  In  which  event  he  evidently 
meant  that  the  corpus  of  the  trust  and  ac- 
cumulations of  income,  if  any,  should  be  us- 
ed by  the  trustees  for  the  payments.  It  is 
true  that  the  accumulations  of  income  are 
now  considerable,  but  it  is  not  at  all  certain 
that  the  time  may  not  come  during  the  life 
of  the  trust  when  these  accumulations,  or 
part  of  them,  may  be  required  to  continue 
the  payments. 

The  testator's  intention  in  this  respect 
seems  to  us  to  be  clear  that  his  wife  should 
have  no  more  than  her  proportionate  part  of 
the  $7,000  annually  during  her  life,  and  that 
nothing  except  the  $7,000  a  year  should  be 
taken  out  of  this  fund,  Including  the  accumu- 
lations until  her  death. 

Having  answered  the  questions  submitted 
to  QS,  the  parties  may  present  a  form  of  de- 
cree In  accordance  with  this  opinion  for  ap- 
proval by  this  court  and  entry  by  the  superior 
court. 


(6  Bojrce,  STO) 

STATE  ex  rel.  MNIHAN  v.  tlNTTBD  BROK- 
ERAGE CO.  et  al. 

(Snperior  Court  of  Delaware.    New  Castle. 
June  27, 1917.) 

1.  CoBPOBATiONs     «=>181(1)  —  Rights    or 
Stockhoi.dkb»— Inspection  of  Books. 

A  stockholder  has  the  right  to  inspect  the 
books  of  the  corporation  at  a  proper  time  for 
proper  purposes. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Gent  Dig.  »  674,  67B,  677.) 

2.  Mahdaicds  «=»129  —  RioHTB  or  Stock - 

HOLDKBS— INSPXCTION   07  BoOKB. 

On  a  stockholder's  petition  for  mandamus 
for  inspection  of  books  of  the  corporation,  if  it 
appears  from  the  corporation's  return  that  he 
desires  the  inspection  for  improper  purpose,  the 
court  in  its  discretion  will  not  order  the  in- 
spection. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Cent  Dig.  f  264.] 

3.  Mandaxijs  €=>  164(4)  —  Rights  or  Stock - 
HOLDBKS— Inspection  of  Books. 

Where  the  return  to  a  stockholder'a  man- 
damus petition  to  compel  the  corporation  to  al- 
low Mm  to  inspect  his  books  unequivocally  alleg- 
ed that  he  desired  the  inspection  for  the  pur- 
pose of  bringing  annoying  and  harassing  suits 
against  the  corporation  without  just  cause,  his 
petition  should  be  denied. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Cent.  Dig.  {  355.] 

4.  Manoauus  «=>164(4)  —  Riania  of  Stock- 
holders—Inspection Of  Books. 

If  it  is  suflSdently  averred  in  the  return  that 
the  pnrpose  of  relator  in  seeking  an  inspection 
of  the  corporate  books  is  an  improper  one,  for 
the  purposes  of  the  proceeding,  the  answor  must 
be  accepted  as  true,  and  the  relator  referred  to 
what  other  remedy  he  may  have  at  common 
law. 

[Ed.  Note.— -For  other  cases,  see  Mandamus, 
Cent  Dig.  {  355.] 


Petition  for  mandamus  by  tbe  State  of 
Delaware,  on  relation  of  John  EL  Linihan, 
against  United  Brokerage  Company  and  oth- 
ers, to  compel  the  production  of  books.  Non 
sunt  as  to  Cames  and  McGehee.  Service  on 
the  remaining  two  defendants.  Motion  to 
dismiss  petition  and  discharge  rule  as  to 
James  M.  Satterfleld,  the  resident  agent,  on 
the  ground  that  be  was  neither  a  necessary 
or  proper  defendant  Granted.  On  return 
of  the  rule,  the  alternative  writ  was  on  mo- 
tion Issued  against  the  United  Brokerage 
Company.  Motion  to  quash  return  to  the 
alternative  writ.  Overruled.  Peremptory 
writ  denied. 

Argued  before  RICE  and  HEISEL,  JJ. 

Marvel,  Marvel,  Wolcott  *  Layton,  of  Wil- 
mington, for  plaintiff.  Andrew  C.  Gray,  of 
Wilmington,  for  United  Brokerage  Co.  Rob- 
ert H.  Richards,  of  Wilmington,  for  Samuel 
T.  Cames,  and  James  M.  Satterfleld,  of 
Dover,  In  pro.  per. 

RICE,  J.  (delivering  the  opinion  of  the 
court).  The  state  of  Delaware  upon  relation 
of  John  E.  Linihan,  filed  a  petition  in  this 
court,  praying  for  a  writ  of  peremptory  man- 
damns,  directed  to  United  Brokerage  Com- 
pany, Samuel  D.  Carnes,  J.  P.  McGehee  and 
James  M.  Satterfleld. 

Upon  the  Issuance  and  return  of  the  rule 
to  show  cause  why  the  prayer  of  the  petition- 
er should  not  be  granted,  an  alternative  writ 
of  mandamus  was  issued  on  the  twenty- 
fourth  day  of  March,  A.  D.  1917.  The  peti- 
tion was  incorporated  In  the  alternative  .writ 
On  the  seventh  day  of  May  following,  the 
defendant  filed  a  return  to  the  alternative 
writ  of  mandamus.  In  this  return  the  de- 
fendant admits  the  allegations  appearing  in 
the  first,  second  and  third  paragraphs  of  the 
petition,  to  wit:  That  the  petitioner  Is  a 
resident  of  the  dty  of  Chicago  and  state  of 
Illinois ;  that  the  United  Brokerage  Company 
Is  a  corporation  organized  and  existing  un- 
der the  laws  of  the  state  of  Delaware,  and 
Samuel  D.  Cames  is  the  president,  and  J. 
P.  McGehee  is  the  secretary  and  ti-easurer  of 
said  corporation,  and  James  M.  Satterfleld  is 
the  resident  agent  of  said  corporation ;  that 
the  company  has  an  authorized  capital  stock 
of  eleven  million  dollars,  of  which  one  million 
dollars  Is  preferred  and  tea  million  dollars 
is  common  stock,  and  that  the  relator  Is  the 
owner  of  twenty-flve  hundred  and  fifty  shares 
of  said  common  stock. 

In  answer  to  the  fourth  paragraph  of  the 
petition,  the  defendant  admits  that  no  div- 
idend has  been  declared  on  tbe  common  stock 
of  the  company. 

To  the  fifth  paragraph  of  the  petition,  the 
defendant  admits  that  until  June  14,  1916,  It 
maintained  an  office  at  number  220  West  For- 
ty-Second street.  New  York  City,  at  which 
office  the  books  and  records  of  the  company 
were  kept,  but  denies  that  Barron  0.  Collier 


4ts9For  ottitr  eun  i 
101  A.— 28 


toploasd  KBY-NUUBBR  iDSlI  Ker-Numbared  OlswU  and  IndUM 


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434 


101  ATLANTIC  REPOBTBB 


(Dd. 


owns  the  majority  of  its  stock  or  is  its  con- 
trolling stockholder,  and  avers  that  the  said 
Collier  Is  the  largest  individual  stockholder. 

The  defendant  denies  the  averment  in  the 
sixth  paragraph  of  said  petition  that  in  the 
month  of  November,  1916,  the  relator  deter- 
mined, If  possible,  to  dispose  of  his  stock  in 
the  defendant  company. 

The  defendant  also  admits  that  its  stock 
Is  not  listed  on  any  exchange  and  is  not  cur- 
rently dealt  in  at  any  place  of  public  sale 
and  exchange  of  stock. 

In  reply  to  the  seventh  paragraph  of  the 
petition,  the  defendant  makes  certain  admis- 
sions not  necessary  here  to  set  forth. 

The  defendant  admits  the  averments  in  the 
eighth  paragraph  of  the  petition  that  cer- 
tain letters  .were  sent  by  the  relator  and  for 
the  relator  to  the  defendant  requesting  an  in- 
spection of  certain  books  of  the  corporation. 

To  the  ninth  paragraph  of  the  petition,  the 
defendant  admits  that  it  is  a  holding  com- 
pany, and  that  Its  properties  consist  of  the 
capital  stock  of  other  corporations,  and  bonds 
of  United  Cereal  MUIs,  Ltd.,  but  denies  that 
it  owns  any  of  the  capital  stock  of  the  said 
United  Cereal  Mills,  Ltd. 

The  defendant  admits  the  averment  In  the 
tenth  paragraph  of  the  petition,  that  the  said 
United  Cereal  Mills,  Ltd.,  did  commence  an 
action  in  foreign  attachment  in  the  Superior 
Court  of  the  state  of  Delaware,  in  and  for 
New  Castle  county,  against  the  relator,  John 
B.  Linihan,  and  attached  the  shares  of  stock 
of  the  said  relator  in  said  United  Brokerage 
Company,  the  defendant  herein,  and  admits 
that  the  ball  demanded  in  said  writ  was  the 
sum  of  flfty  thousand  dollars,  but  denies  that 
the  bringing  and  commencement  of  said  ac- 
tion was  brought  by  procuration  of  this  de- 
fendant or  its  officers. 

The  seventeenth  paragraph  of  defendant's 
return  is  In  the  following  language: 

Further  answering  said  petition,  the  de- 
fendant avers  that  the  demands  of  the  relator 
for  the  privilege  of  inspecting  the  books  and 
records  of  this  defendant,  and  of  making 
copies  thereof,  and  the  institution  of  this 
suit,  were  not  In  good  faith,  nor  for  any  legit- 
imate or  lawful  purpose,  but  were  made  and 
instituted  for  the  sole  purpose  and  object 
of  harassing  the  defendant  and  the  said  Bar- 
ron G.  Collier,  the  defendant's  principal 
stockholder,  with  the  view  of  compelling  it  or 
him  to  acquire  the  said  shares  of  stock  owned 
by  the  relator  in  the  defendant,  and  as  a 
counter  attack  to  Induce  the  said  United  Cere- 
al Mills,  Ltd.,  to  abandon  or  compromise  Just 
and  valid  claims  .which  it  has  against  the  re- 
lator, growing  out  of  his  iiilsmauugement  of 
the  said  United  Cereal  Mills,  Limited,  while 
he  was  in  charge  tliereof,  as  will  be  here- 
inafter more  fully  detailed. 

The  defendant  avers  that  for  several  years 
prior  to  the  twenty-fifth  day  of  October,  A.  D. 
1916,  the  relator  was  an  officer  and  director 
of  the  said  United  Cereal  Mills,  Limited,  a 


partnership  assodiatioa  under  the  laws  of 
the  state  of  Michigan,  and  during  said  period, 
from  time  to  time,  held  the  offices  of  general 
manager,  treasurer,  vice  chairman  and  vice 
president,  and  at  some  portions  of  said  peri- 
od held  all  of  said  offices  at  the  same  time, 
and  during  said  period  had  practical  and 
exclusive  control,  management  and  direction, 
with  slight  exceptions,  of  all  of  the  business 
and  affairs  of  said  association.  During  said 
period,  the  said  relator  had  full  right  and 
power  to  employ  and  discharge  all  agents 
and  employes  of  said  association,  to  make  all 
legitimate  contracts  in  its  name  and  behalf, 
and  to  disburse  its  funds  in  the  oiieration  and 
conduct  of  its  business. 

During  all  of  said  period  of  employment  of 
the  said  relator  by  the  said  partnen^hip  as- 
sociation, the  said  association  was  almost  en- 
tirely owned  by  either  this  defendant  or  by 
the  said  "United  Brokerage  Company  of  New 
York,"  a  corporation  all  of  whose  stock  is 
and  always  has  been  owned  by  this  defend- 
ant 

For  some  time  prior  to  October  25,  1916, 
the  United  Brokerage  Company  of  New  York, 
owning  as  aforesaid  almost  all  of  the  capi- 
tal stooge  of  said  United  Cereal  Mills,  Limit- 
ed, was  dissatisfied  with  the  management  of 
the  affairs  of  the  said  United  Cereal  Mills, 
Limited,  by  the  relator,  and,  although  re- 
peated requests  were  made  for  the  same,  by 
the  said  United  Brokerage  Company  of  New 
York,  no  accurate  or  definite  information  re- 
garding the  business  and  affairs  of  said  part- 
nership association  could  be  obtained  by  the 
said  United  Brokerage  Company  ot  New 
York  from  either  the  relator  or  his  subordi- 
nate officials  and  employ^.  Consequently, 
about  the  month  of  April,  1816,  it  was  decid- 
ed by  the  said  United  Brokerage  Company 
of  New  York  to  have  a  report  made  by  a 
qualified  expert  accountant  on  the  condition 
of  the  said  partnership  association  and  its 
business;  but  the  relator,  being  then  the 
managing  officer  of  said  partnership  associa- 
tion and  being  in  actual  possession  and  con- 
trol of  all  its  books  and  records,  positively 
refused  to  allow  such  accountant  to  have  ac- 
cess to  said  books  and  records  for  the  purpose 
of  making  an  investigation  of  the  affairs  and 
business  of  said  association.  The  relatM-, 
well  knowing  that  such  an  investigation 
would  disclose  mismanagement  by  him  of  the 
affairs  of  said  association  and  misappropri- 
ation of  its  funds  by  him,  persistently  refused 
either  to  give  any  information  to  the  said 
United  Brokerage  Company  of  New  York,  or 
its  representatives,  with  reference  to  the 
business  and  affaifs  of  said  association,  and 
also  persistently  refused  to  permit  any  such 
information  to  be  obtained  by  the  said  United 
Brokerage  Company  of  New  York ;  and  the 
said  relator  expressly  instructed  lUs  subordi- 
nates to  refuse  to  every  one  any  access  wliat- 
soever  to  the  books  and  records  of  the  said 
partnership  association  and  to  refuse  any  in- 
formation whatsoever  relating  to  its  afiTalra 


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STATE  V.  UNITED  BROEERAOE  CO. 


43S 


to  the  said  United  Brokerage  Company  of 
New  York,  and  also  to  every  otber  person 
whatsoever.    The    said    relator,    then    and 
there  knowing  that  this  defendant,  throngta 
Its  ownership  of  the  stock  of  the  United 
Brokerage  Ck>mpaDy  of  New  York,  was  Inter- 
ested In  the  affairs  ot  the  said  United  Cereal 
Mills,  Limited,  and,  then  and  there,  planning 
a  counter  attack  to  divert  or  prevent  the  at- 
tempts of  the  United  Brokerage  Company  of 
New  York  to  obtain  a  disclosure  of  the  true 
conditions  of  the  business  and  affairs  of  said 
partnership  association,  seized  hold   of  the 
fact  that  he  was  a  stockholder  in  the  defend- 
ant comimny  as  the  basis  of  such  counter  at- 
tack and  forthwith  made  a  demand  that  the 
defendant  company,  or  the  said  Barron  O. 
Collier,  who  was  then  knovm  to  the  relator  to 
be  the  largest  stockholder  in  the  defendant 
company,  should  purchase  his  (the  relator's) 
stock  In  the  defendant  company,  at  a  price 
satisfactory  to  the  relator ;  and  the  said  re- 
lator then  and  there  threatened  that  maless 
such  purchase  should  be  made  he  would  take 
legal  proceedings,  the  character  of  which  he 
did  not  then  disclose,  for  the  purpose  of  hai^ 
asslng    and    Injuring    the    defendant.    The 
defendant  corporation  and  tlie  said  Collier 
both  refused  to  purchase  said  shares  of  stock 
and  the  said  relator  thereupon  began  to  make 
demands  for  the  right  to  Inspect  the  books 
and  records  of  the  defendant  and  persisted 
In  his  refusal  to  permit  any  examination  to 
be  made  of  the  affairs  of  the  said  United 
Cereal  Mills,  Limited,  by  the  board  of  mana- 
gers of  said  partnership  association,  as  well 
as  by  the  owner  of  practically  the  entire  cap- 
ital stock  thereof ;  and  claimed,  as  an  excuse 
for  such  conduct,  that  all  of  the  board  of 
managers  and  officers  of  said  partnership  as- 
sociation, other  than  himself,  had  not  been 
duly  elected.    By  such,   and  other  similar 
tactics,  the  said  relator,  between  April,  1016, 
and  October,  1916,  endeavored  to  prevent  ac- 
cess to  the  books  and  records  of  said  part- 
nership association  by  all  other  persons  than 
himself  and  his  appointed  subordinates.    It 
having  become  evident  that  the  relator's  ef- 
forts to  prevent  an  examination  into  the  af- 
fairs of  the  association  were  caused  by  his 
anxiety  to  conceal  from  the  other  officers  and 
stockholders   some   mismanagement    qf  the 
business,  a  general  meeting  of  the  sharehold- 
ers of  eald  association  was  held  in  the  month 
of  October,  1916,  and  a.  board  of  managers 
was  elected,  of  which  board  the  relator  was 
not  chosen  as  a  member ;  but  as  a  matter  ot 
fairness  to  the  relator,  he  was  temporarily 
continued  as  manager  of  the  plants  of  the 
said  association  until  an  Investigation  and 
report  could  be  made  of  the  condition  of  the 
business.    Under  the  Michigan  statute  (Row. 
Ann.  St.  1912,  S|  5425-5441),  authorizing  the 
organization  of  partnership  associations,  the 
governing  body  thereof  is  called  a  "board  of 
managers."    Almost   immediately   after   the 
new  board  of  managers  was  elected,  it  was 
discovered  by  the  said  board  at  managers 


that  the  sold  partnership  association  had  a 
number  of  outstanding  checks  without  suffi- 
cient funds  in  bank  to  pay  them  when  pre- 
sented, and  that  other  financial  transactions 
had  been  made  by  the  said  relator  which  re- 
flectedi  seriously  upon  the  honesty  of  the 
management  of  the  said  association  and 
threatened  the  financial  standing  of  the  asso- 
clatl<m.  Thereupon,  It  was  made  plain  to  the 
relator  that  the  financial  assistance  which 
had  theretofore  been  extended  to  the  said 
association  by  the  defendant  company  would 
be  withdrawn  unless  the  relator  should  com- 
pletely sever  his  connection  with  said  associ- 
ation and  tarn  over  all  books,  records  and  pa- 
pers of  the  said  association  unto  such  per- 
sons as  might  be  appointed  by  the  said  Board 
of  Managers.  The  relator,  fully  appreciating 
that  he  would  be  seriously  compromised  if 
said  checks  went  to  protest,  and  the  financial 
transactions  above  referred  to  were  exposed, 
therefore  agreed  to,  and  did,  thm  and  there, 
sever  his  connection  with  the  said  association 
and  made  delivery  of  all  its  books  and  pa- 
pers, and  the  attorney  for  said  relator,  then 
and  there,  for  the  first  time,  informed  the 
representatives  of  the  said  Board  of  Mana- 
gers that  the  relator  had  been  using  the  mon- 
ey and  funds  of  said  association  for  specula- 
tion in  grain  and  had  thereby  lost  moneys 
and  funds  of  said  association  amounting  to 
about  the  sum  of  forty  thousand  dollars. 

The  examination  of  the  books  and  affairs 
of  the  said  association  which  followed  the 
severance  of  the  relator's  connection  there- 
with, disclosed  the  fact  that  the  said  relator 
for  several  years  prior  thereto  had  been  nn- 
lawfully  and  without  authority  using  the 
funds  and  money  of  said  association  for  the 
purpose  of  speculating  in  grain,  ostensibly 
for  the  company  but,  in  a  numl>er  of  Instano* 
es.  In  the  names  of  other  parties,  and  that 
such  conduct  on  the  part  of  said  relator  had 
resulted  in  a  misappropriation  and  loss  of 
about  the  sum  of  $3S,875.50  of  the  money  and 
funds  of  said  partnership  association;  and 
said  examination  also  disclosed  the  further 
fact  that  the  said  relator,  for  several  years 
prior  to  the  severance  of  his  relations  with 
said  association,  had  been  using  the  funds  of 
the  said  association  for  the  purpose  of  pay- 
ing his  private  debts  and  obligations  and 
thereby  had  overdrawn  his  personal  salary 
account  with  said  association,  for  various 
amounts  from  time  to  time,  and  that  the- 
amount  of  such  overdrafts,  at  the  time  of 
such  severance  of  relations,  aggregated  the 
sum  of  $6,886.35,  the  said  amount  being  the 
moneys  of  the  said  United  Cereal  Mills,  Lim- 
ited, which  the  said  relator  had  theretofore 
unlawfully  taken  and  appropriated  to  his 
own  use,  in  addition  to  the  above  mentioned 
funds  so  as  aforesaid  misappropriated  by 
him  for  the  purpose  of  speculating  in  grain;, 
and  it  is  to  recover  the  above  mentioned 
sums  of  money,  so  misappropriated  as  afore- 
said by  the  said  relator,  that  the  said  suit 
by  foreign  attachment  has  been  brought  in. 


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436 


101  ATIiANTIO  REPOBTEB 


(Del. 


the  said  Superior  Court  of  the  state  of  Dela- 
ware. 

Tbls  defendant  furtber  avers  tbat  the  per- 
sistent refusals  of  the  relator  to  permit  the 
United  Brokerage  Company  of  New  Tork, 
which  was  and  is  practically  the  sole  owner 
of  the  said  United  Cereal  Mills,  Limited,  to 
obtain  any  Information  about  the  conduct  of 
the  business  of  the  said  United  Cereal  Mills, 
Limited,  of  which,  as  aforesaid,  the  said  re- 
lator was  the  manager,  and  the  sudden  de- 
mand of  the  relator  for  the  right  to  inspect 
the  books  of  the  defendant,  and  the  threat 
of  the  relator  to  institute  legal  proceedings 
against  the  defendant  unless  it  should  pur- 
chase his  stock  in  the  defendant  at  a  price 
satisfactory  to  him,  were  aU  inspired  solely 
by  the  relator's  desire  to  avoid  the  conse- 
quences of  his  wrongful  and  Illegal  acts, 
hereinabove  set  forth,  as  manager  of  the 
said  United  Cereal  Mills,  Limited.  Antici- 
pating that  some  legal  action  would  be  taken 
against  him  by  the  said  United  Cereal  Mills, 
Limited,  the  relator,  even  after  the  events 
hereinabove  detailed,  continued  to  endeavor 
to  compel  either  this  defendant,  or  the  said 
Collier,  to  purchase  his  shares  of  stock  in 
this  defendant  company;  and,  for  the  pur 
ixwe  of  "holding  up"  the  defendant,  or  the 
said  Collier,  and  coercing  them  to  purchase 
his  said  shares  of  stock,  or  to  exert  their  in- 
fluenoe  to  prevent  any  legal  action  being  tak- 
en against  him  by  the  said  United  Cereal 
Mills,  Limited,  the  said  relator  threatened  to 
exercise  his  right  as  a  stockholder  to  Inspect 
the  books  and  records  of  the  defendant  and 
threatened  to  use  the  information  gained 
from  such  inspection  for  the  purpose  of  bring- 
ing suits  to  annoy  and  harass  the  defend- 
ant and  to  injure  its  business  and  the  busi- 
ness of  Its  said  subsidiaries,  engaged,  as 
aforesaid,  in  conducting  the  said  street  rail- 
way advertising  business.  And  this  defend- 
ant avers  that,  if  permitted  access  to  the 
books  of  the  defendant,  the  said  relator  will 
use  the  information  gained  therefrom  as  the 
basis  of  unjust  and  unsupportable  legal  ac- 
tions In  the  hope  that  he  may  thereby  be 
able  to  compel  this  defendant,  or  the  said 
Collier,  to  purchase  his  said  shares  of  stock, 
or  to  compel  them.  Indirectly,  to  influence  the 
United  Cereal  MUis,  Limited,  to  desist  from 
proceeding  against  him  for  the  wrongful 
acts  aforesaid. 

This  defendant  further  avers  that  it  is  the 
declared  purpose  and  Intention  of  the  said 
relator,  in  case  he  obtains  from  this  court  the 
right  to  inspect  and  make  copies  of  the  books, 
papers  and  accounts  of  the  defendant  oor> 
poratlon,  to  use  the  Information  thus  obtain- 
ed to  injure  the  street  railway  advertising 
business  of  the  said  subsidiaries  of  the  said 
defendant,  and  also  to  use  such  information 
as  the  basis  of  suits  against  the  defendant 
corporation  or  the  said  Collier,  or  both  of 
them,  for  the  sole  purpose  of  harassing  and 
annoying  them  to  the  extent  of  compelling 
them,  or  one  or  the  other  of  them,  to  pur- 


chase his  said  shares  of  stock,  aa  the  price 
of  peace. 

This  defendant  further  avers  that  this 
present  suit,  itself,  has  not  been  brought  for 
any  proper  purpose,  but,  on  the  other  hand, 
that  the  same  has  been  brought  for  the  im- 
proper,  evil  and  vicious  purpose  of  using 
this  court  and  its  process  as  a  means  of  coerc- 
ing either  the  said  defendant  or  the  said  Col- 
lier to  purchase  the  said  shares  of  stock,  eo 
as  aforesaid  owned  by  the  relator,  whereas, 
in  fact,  neither  the  said  defendant  nor  the 
said  Collier  liave  any  desire  to  purchase  the 
same.  And  this  defendant  further  avers 
that,  so  far  as  it  Is  concerned,  it  will  not 
permit  itself  to  be  coerced  to  purchase  the 
said  relator's  shares  of  stock,  under  any  cir- 
cumstances. 

Argument  was  heard  on  a  motion  to  quash 
defendant's  return  to  the  alternative  writ. 

The  question  for  our  immediate  considera- 
tion and  determination  la  whether  the  aver- 
ments contained  in  the  seventeenth  para- 
graph of  the  return  show  sufficient  reason 
why  the  relator  should  not  be  permitted, 
under  the  order  of  the  court,  to  Inspect  and 
make  copies  of,  and  extracts  from,  the  books 
of  the  company  as  prayed  for  in  the  petition. 
We  believe  the  questions  of  law  raised  have 
all  been  determined  by  the  courts  of  this 
state. 

The  ilt^t  which  relator  seeks  in  this  salt 
is  the  common-law  right  of  the  stodcholder 
to  inspect  the  books  of  the  corporation  at 
the  proper  time  and  for  a  lawful  and  proper 
purpose,  ^e  relator  In  his  petition  express- 
ly avers  that  he  does  not  wish  to  see  the 
books  and  papers  for  mere  idle  curiosity,  nor 
for  speculative  purposes,  nor  for  any  Im- 
proper purpose  whatever,  and  sets  forth  in 
his  petition  what  under  ordinary  circum- 
stances would  be  a  proper  purpose,  and  if  it 
were  not  for  the  Issues  raised  by  the  seven- 
teenth paragraph  of  the  defendant's  return, 
we  think  he  would  have  established  Ills  right 
to  inspect  certain  books  of  the  defendant 
company. 

[1]  It  la  a  principle  of  law  recognized  in 
this  state,  tliat  a  stockholder  has  the  right 
to  inspect  the  l>ooks  of  the  corporation  at  a 
proper  time  for  proper  purposes.  Julvecourt 
V.  Pan-American  Co.,  5  Pen.  395,  61  Atl.  398, 
63  Atl.  1118;  Brumley  v.  Jessup  &  Moore 
Paper  Co.,  1  Boyce,  397,  77  Atl.  16;  State  v. 
Jessup  &  Moore  Paper  Co.,  4  Boyce,  248,  83 
Atl.  449. 

[2]  If  it  appears  from  an  inspection  of  the 
defendant's  return,  that  relator's  purpose  is 
not  as  alleged  by  him,  for  a  proper  purpose, 
but  is,  as  averred  by  the  defendant,  for  an 
Improper  purpose,  then  the  court  in  its  dis- 
cretion would  not  make  an  order  for  the  in- 
spection of  defendant's  books  by  the  relator, 
and  in  this  case  would  not  quash  return  filed 
by  the  defendant. 

In  State  v.  Jessup  ft  Moore  Paper  Cow, 
supra,  it  was  saidt 


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STATE  T.  UNITED  BSOKERAQE  CO. 


437 


"The  answer  made  by  the  return  U  threefold 
In  nature.  It  first  charges  the  relator  with  ac- 
tions and  motives  which,  if  true,  would  deprive 
it  of  the  right  to  obtain  information  it  seeks 
*   •    •  >> 

—and  again  with  reference  to  the  bad  faitti 
and  improper  motive  of  the  relator  In  the 
same  case,  the  court  said: 

"Bad  faith  and  improper  motive  of  the  Idnd 
alleged,  would,  if  true,  deprive  the  relator  of  any 
ridit  to  insi>ect  the  books  of  a  corporation  of 
whidi  It  is  a  stockholder ;  but  such  an  allega- 
tion of  bad  faith  and  improper  motive,  without 
something  to  show  how  and  in  what  resi>ect  it 
exists,  is  alone  insufficient  as  a  denial  of  the 
plaintiff's  good  faith  and  proper  motive,  just  aa 
a  bald  averment  of  the  relator  as  to  its  good 
faith  and  proper  purpose,  without  something  to 
thow  the  real  or  prooable  existence  of  the  one 
and  the  other,  would  be  an  insufficient  aver- 
ment in  the  petition  upon  which  to  ask  for  and 
obtain  the  inspection  of  corporate  books." 

[3]  In  passing  upon  the  question  raised  by 
the  return  of  the  defendant,  we  must  not  only 
keep  In  mind  the  right  sought  to  be  exercis- 
ed by  the  relator,  but  we  must  also  keep  be- 
fore us  the  rights  of  the  other  stockholders 
to  have  their  Interests  In  the  company  pro- 
tected. 

There  Is  much  In  the  seventeenth  para- 
graph of  defendant's  return,  which  may  seem 
Irrelevant  and  would  be  Irrelevant  If  It  were 
not  that  It  contained  averments  of  the  dr- 
camstances  leading  up  to  and  throwing  light 
upon  the  nature  and  character  of  the  re- 
lator's demand  that  one  of  tbe  principal 
(tockholders  purchase  his  stock  in  the  de- 
fendant company,  at  a  price  satisfactory  to 
the  relator  and  his  threat  that  unless  such 
purchase  should  be  made,  he  would  take  le- 
gal proceedings  for  the  purpose  of  harass- 
ing and  Injuring  the  defendant,  and  also  his 
snbsequent  threat  to  exercise  his  right  as  a 
stockholder  to  Inspect  the  books  and  records 
of  the  company,  and  use  the  Information 
gained  in  such  inspecticm,  for  the  purpose  of 
bringing  suits  to  annoy  and  hara^  the  de- 
fendant, and  to  injure  its  business  and  the 
business  of  its  subsidiaries. 

The  examination  of  corporate  books  by  the 
relator  for  the  purpose  declared  by  him,  as 
averred  in  tbe  return  of  seeking  information 
whereby  he  could  bring  harassing  and  vex- 
atious litigation  against  the  company,  could  if 
such  purpose  should  be  effected  but  bring 
injniy  to  the  interests  of  the  other  stockhold- 
ers In  the  company,  and  would  be  hostile  to 
their  Interests  and  the  interests  of  the  com- 
pany, eren  though  such  litigation  should  be 
finally  determined  in  favor  of  the  company. 
Such  averments  of  bad  faith  and  Imprt^er 
purposes  cm  tbe  part  of  the  relator  when 
unequivocal,  C(nnplete  and  sufSclently  plead- 
ed in  detail,  can  only  under  our  practice  in 
mandamus  proceedings,  result  in  a  denial  of 


the  plaintilTs  prayer  to  inspect  tbe  corporate 
books. 

In  State  t.  Jessup  &  Moore  Paper  Co.,  su- 
pra, the  court  said: 

"Under  tbe  practice  of  this  court  in  pro- 
ceedings in  mandamus,  tbe  relator  by  its  peti- 
tion must  disclose  a  state  of  facts  that  establish- 
es its  legal  right  to  the  remedy  it  seeks,  and 
when  an  alternative  writ  issues  to  enforce  that 
right,  the  defendant  by  its  return  must  either 
show  that  it  has  obeyed  the  command  of  the 
writ,  or,  in  tbe  alternative,  deny  the  averments 
of  the  petition,  upon  which  the  writ  was  award- 
ed, and  show  the  relator  to  be  without  right  to 
the  remedy.  There  must  be  denials  of  those 
averments  that  are  material  to  establishing  the 
petitioner's  right,  and  in  order  to  avoid  obedi- 
ence to  the  mandate  of  tbe  writ,  the  denials  must 
be  unequivocal,  complete  and  snfflcient.  They 
must  be  sufficient,  not  merely  in  the  estimation 
of  the  pleader,  but  must  be  so  pleaded  as  to  dis- 
close their  sufficiency  to  the  court  that  is  called 
upon  to  pass  upon  their  sufficiency.  When  the 
sufficiency  of  the  denials  is  thus  disclosed,  they 
are  accepted  as  true;  when  their  snfficiency  is 
not  disclosed,  and  the  mandate  of  the  writ  is  not 
obeyed,  the  return  Is  insufficient,  and  to  that 
extent  the  case  stands  as  if  no  tetnm  were 
made  at  aa    •    •    • " 

It  may  be  a  hardship  to  the  relator  In  this 
case  not  to  be  allowed  to  Inspect  the  books 
of  the  company,  as  It  may  prevent  him  trcm 
securing  information  as  to  the  value  of  the 
stock  owned  by  him,  and  attached  in  the  pro- 
ceeding instituted  by  tbe  United  Oereal  Mills, 
Ltd.,  and  may  result  in  preventing  him  from 
securing  bail  in  that  proceeding.  But  un- 
fortunately for  him,  the  return  avers  and 
sets  forth  Improper  threats  and  demands 
against  the  company  and  at  least  one  of  the 
stockholders  in  the  company,  which  if  carried 
out,  would  undoubtedly  prove  most  injuri- 
ous to  the  welfare  of  the  company  and  to  tbe 
Interests  of  the  stockholders. 

[4]  Under  our  practice,  if  it  is  sufficiently 
averred  in  the  return  that  the  purpose  of 
relator  in  seeking  an  inspection  of  the  cor- 
porate books  is  an  Improper  one,  for  the  pur- 
poses of  the  proceeding,  the  answer  must  be 
accepted  as  true  and  the  relator  referred 
to  what  other  remedy  he  may  have  at  com- 
mon law.  We  have  no  practice  or  procedure 
In  this  state,  whereby  Issues  raised  by  the 
allegation  in  the  petition  and  the  averments 
tn  the  return  may  be  submitted  upon  evi- 
dence to  a  jury  for  their  determination. 

We  are  of  the  <9inlon  that  the  bad  faith 
and  Improper  purposes  on  the  part  of  the  re- 
lator, averred  by  the  defendant  in  Its  return, 
la  adequately  pleaded  and  it  is  effectively 
shown  that  the  relator  should  not  be  permit- 
ted to  Inspect  and  make  copies  of,  and  ex- 
tracts from,  the  books  of  the  company,  as 
prayed  for  in  his  petition  filed,  and  therefore 
we  are  of  the  opinion  that  the  motion  to 
quash  the  return  should  not  be  granted. 

The  peremptory  writ  is  denied. 


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101  ATIiAigriO  REPORTia 


<D«L 


(6  Boyce,  B»)  

pere:ins  t.  brinohurst. 

(Superior  Court  of  Delaware.    New  Casfle. 

June  27, 1917.) 

DiscovKBT   ©=997(1)  —  Motions— PsoDucnoR 

or  Papebs— Requisites. 
In  making  an  order  under  Rev.  Code  1915, 
{  4228,  to  require  the  production  of  papers  in 
evidence  the  application  should  show  not  onl; 
that  notice  had  been  served  upon  the  adverse 
party  or  his  counsel  of  the  time  when  the  ap- 
plication would  be  made  to  the  court,  but  also 
that  prior  demand  had  been  made  on  the  adverse 
party,  or  his  counsel,  for  leave  to  examine  the 
books  or  writings  within  a  reasonable  time  (stat- 
ing the  time),  and  aacb  leave  had  been  refused. 

[Ed.  Note.— For  other  cases,  see  Discovery, 
Cent  Dig.  H  124-127.] 

Action  by  Clifton  A.  Perkins  against  Anna 
3.  Brlngburst  On  defendant's  motion  to  re- 
quire the  prodactlon  of  papers.  Motion 
granted. 

Argued  before  RICE  and  HEISBL,  JJ. 

Baldwin  Springer  and  Caleb  B.  Burchenal, 
both  of  Wilmington,  for  plaintiff.  Saulsbury, 
Morris  &  Rodney,  of  Wilmington,  for  defend- 
ant. 

Action  by  Clifton  A.  Perkins  agaliist  Anna 
J.  Brlnghnrst,  to  recover  for  work  and  labor 
performed  and  materials  furnished,  money 
advanced,  etc..  In  and  about  the  erection  and 
repair  of  certain  buildings  for  defendant. 
Plaintiff  filed  a  bill  of  particulars  with  his 
declaration,  to  which  defendant  refused  to 
plead  until  a  further  bill  of  particulars  was 
filed.  Plaintiff  filed  a  more  detailed  bill  of 
particulars. 

Counsel  for  defendant  thereupon  served 
the  following  notice  upon  counsel  for  plain- 
tiff: 

"  •  ♦  *  We  hereby  give  you  notice  that  on 
Thursday,  next,  June  seventh,  1917,  at  2:30 
o'clock  P.  M.  we  shall  move  the  court  to  order 
the  plaintiff  in  the  above  cause  to  produce  the 
books  or  writings  mentioned  in  the  schedule 
hereto  appended  and  marked  Exhibit  'A,'  which 
said  booKs  or  writings  are  in  the  possession  or 
control  of  the  plaintiff  and  which  contain  evi- 
dence pertinent  to  the  issue ;  such  production 
to  be  made  for  use  during  the  pendency  of  said 
cause  under  such  terms  and  at  such  times  as  the 
court  may  direct." 

And  also  filed  the  following  motion: 

"The  defendant  in  the  above  stated  cause  by 
Saulsbury,  Morris  de  Rodney,  her  attorneys,  luiT> 
ing  given  to  the  plaintiff  in  said  cause  due  no- 
tice of  this  application,  as  appears  by  the  copy 
of  said  notice  hereto  attached,  doth  now  move 
the  court  for  an  order  requiring  the  plaintiff 
to  produce  during  the  pendency  of  said  cause, 
under  such  terms  and  at  such  times  as  the  court 
may  direct,  the  certain  books  or  writings  men- 
tioned in  the  schedule  hereto  appended  and 
marked  Exhibit  'A,'  which  said  books  or  writ- 
ings are  now  in  the  possession  or  control  of  the 
said  plaintiff  and  contain  evidence  pertinent  to 
the  i^ue  in  said  cause." 

Argument  was  beard. 

HEISEL,  J.  (delivering  the  (pinion  of  the 
court).  This  Is  an  application  by  defendant 
for  the  production  by  plaintiff,  of  certain 
writings  in  his  possession  for  examination  by 


defendant  during  the  iiendlng  of  the  action,  as 
provided  by  section  4228,  Rer.  Code  1915. 

In  maldng  such  order  as  we  think  nec- 
essary and  proper  in  this  matter,  we  take  oc- 
casion to  say,  that  in  applications  to  the 
court  under  the  section  of  tlie  Code  mention- 
ed, we  think  the  better  practice  to  be,  and 
hereafter  will  require  the  application  to 
show,  oot  only,  that  notice  bad  been  served 
upon  the  adverse  party  or  his  counsel  of  the 
time  when  the  application  would  be  made 
to  the  court,  but  must  show  also  that  prior 
demand  had  been  made  on  the  adverse  party, 
or  his  counsel,  for  leave  to  examine  the  books 
or  writings  In  queetlon,  within  a  reasonable 
time  (stating  the  time)  and  saCb  leuve  bad 
been  refused. 

We  think  the  practice  as  stated  In  aectloa 
337  of  WooUey's  DeL  Piac.  should  be  fol- 
lowed. 

And  now,  to  wit,  this  twenty-seventh  day 
of  June,  A.  D.  1917,  the  aforegoing  petition 
having  been  read  and  oonsldeved  by  the 
court.  It  Is  ordered  that  the  plaintiff  produce 
on  the  twentieth  day  of  July,  1917,  at  the  of- 
fice of  the  Prothonotary  of  this  court,  at  Wil- 
mington, for  the  inspection  and  examination 
of  the  defendant,  the  following  bills  or  writp 
ings. 

1.  The  contracts  mentioned  on  page  one  of 
the  bill  of  particulars. 

2.  BUI  showing  items  of  diarge  <»i  pace 
seventeen  of  the  bill  of  particulais,  Jannaiy 
28,  1913,  tin  roofing  for  porch— *12«.98. 

3.  BlUs  showing  itons  of  charge  on  page 
forty  of  the  bill  of  partlculara  under  date  ct 
March  28,  1913,  of  each  of  the  followlns 
charges: 

Warner's  biU. $120  80 

Plastering  for  truck  room  partitions. .     120  00 

Tylre's  bill  for  stone  lining 100  00 

Extra  heating 235  00 

Panels  and  castings ISO  58 

Panels  and  canvas 81  80 

Glass 78  82 

Delaware  Hardware   Ca's   bill— extra 

hdw 178  00 

Extra  painting  materials 133  28 

Wilmington  Sash  &  Door  Co.'b  bill  for 

extra   mlUwork 174  70 

(6  Boyos.  684) 
PALESE  V.  PAX<ESB. 

(Superior  Court  ot  Delaware.    New  Oaatle. 
June  14.  1917.) 

DiVOBCK  ©S399— PU^ADINO— DEixirsis. 

Where  the  defense  in  an  action  for  dtvoroe 
is  adultery  on  the  part  of  the  plaintiff,  the  bet- 
ter practice  is  to  file  an  answer  setting  up  the 
adulterous  acts  relied  upon,  with  the  same  par- 
ticularity as  would  be  required  in  a  petitioD 
alleging  adultery  as  a  ground  for  divorce. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Cent. 
£Kg.  U  316-Sia] 

Action  for  divorce  on  the  ground  of -ex- 
treme cruelty  by  Mollie  A.  Palese  against 
Andrew  J.  Pales&  Plaintiff  given  oi^tortu- 
nity  to  file  an  answer,  setting  up  defense 
sought  to  be  raised  by  evidence. 


A=>For  other  eases  s«e  larne  toolo  and  KBT-NUMBE31  In  all  Key-Numbered  Digests  and  Indnes 


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BERNARD  ▼.  WUITKKIJUjD  TANNING  OO. 


439 


At  tbe  trial,  It  was  sought  to  Introduce 
testimony  to  pnyve  adultei^  on  the  part  of 
the. plaintiff.  Objection  was  made  tliat  no 
answer  setting  up  such  a  defense  had  been, 
filed  by  defendant  It  was  contended  in 
reply  that  the  practice  did  not  require  the 
filing  of  SQCfa  an  answer,  exc^t  In  cases 
where  the  ground  for  divorce  Is  adultery. 

Argued  before  RICE  and  HEUSEL,  JJ. 

Armon  D.  Chaytor,  Jr.,  of  Wllmlneton,  for 
plaintiff.  Frank  I*  Speakman,  of  Wllmlng- 
ton,   for  defendant 

RICE,  J.  The  court  Is  of  the  opinion  that 
where  the  defense  In  an  action  for  divorce 
is  adultery  on  the  part  of  the  plaintiff,  the 
better  practice  would  be,  and  should  be,  to 
file  an  answer  setting  up  the  adultprous  acts 
relied  uiK>n,  with  the  same  particularity  as 
would  be  required  In  a  petition  alleging  adul- 
tery as  a  ground  for  divorce.  As  the  practice 
has  been  somewhat  unsettled  up  to  tbls  time, 
we  will  give  the  defendant  In  this  case  rea- 
sonable opportunity  to  file  an  answer.  If 
that  can  be  done  during  the  noon  recess,  the 
plaintiff  may  then  elect  whether  he  will 
proceed  with  the  hearing  or  ask  for  a  con- 
tinuance. 

(78  N.  H.  418) 

BERNARD  v.  WHITBFIEI/D  TANNING  CO. 

(Supreme  Court  of  New  Hampshire.    CoSs. 

May  1,  1917.) 

1.  Watebs  and  Water  Codbses  «=>77— Pole 

LUTIOW    OF    SXBKAM  —  SXJFTICMNCT    OF   BVI- 
DBNCE. 

Id  an  action  for  damages  to  realty  and  per- 
sonalty from  tbe  pollution  <A  a  river  by  anthrax 
germs  from  defendants'  tannery,-  evidence  held 
to  justify  finding  that  tbe  germs  which  killed 
plaintiff's  COWS  and  inoculated  his  land  came 
from  the  tannery  in  the  summer,  when  defend- 
ants operated  it,  rather  than  before,  when  it 
was  operated  by  others. 

[Ed.  Nota — For  other  cases,  see  Waters  and 
Water  Courses,  Cent.  Dig.  JS  65,  66.] 

2.  Watebs  and  Wateb  Cocbses  ®=>77— Poi.- 
lction— evidence — materiality. 

Evidence  offered  by  defendants  tending  to 
show  that  government  in'spection  and  disinfec- 
tion of  the  foreign  hides  which  defendants  used 
exclusively  were  effectual  to  destroy  anthrax 
germs,  and  that  defendants,  in  the  management 
of  their  business,  relied  on  snck  inspection  and 
disbifection,  was  admissible,  since  it  bore  direct- 
ly on  the  question  whether  pollution  of  the 
stream  was  due  to  defendants'  wont  of  care,  or 
want  (A  care  of  defendants'  predecessors  in  the 
tannery  business,  who  used  domestic  hides. 

WEd.  Note.— For  other  cases,  see  Waters  and 
ater  Courses,  Cent  Dig.  {{  65,  66.] 

3.  NviaANCE  <e=3£— Unbbasonabb  Use  or  Re- 
Ai,Tr — ^Knowledgk  of  use. 

To  charge  the  owner  of  realty  with  an  un- 
reasonable use  of  it,  it  must  appear  that  he 
iiad  actual  knowledge  of  the  use. 

[Ed.    Note.— For   other   cases,    see   Nuisance, 
Cent.  Dig.  {  2.] 

4.  Waters  and  Water  Courses  «=»77— Pol- 
lution OF  Stkeam— Action  fob  Daxaqes— 
Issue. 

In  an  action  for  damages  tt^  realty  and  per- 
sonalty frcHn  pollution  of  a  nver  by  aathraz 


germs  from  defendants'  tannery,  thi>  issue 
whether  turning  the  tannery's  general  waste 
into  the  stream  was  a  reasonable  exercise  of  de* 
fendanta'  riparian  rights  should  not  be  submit- 
ted, but  only  the  issue  of  negligence,  unless 
plamtiff  proves  damages  from  the  exercise  of  the 
right  which  defendants  claim  as  appurtenant  to 
their  riparian  ownership. 

WEd.  Note. — For  other  cases,  see  Waters  and 
ater  Courses,  Cent  Dig.  SS  65,  66.] 

Transferred  from  Superior  Court,  Co8s 
County;    Chamberlln,  Judge. 

Action  on  the  case  by  James  Betmard 
against  the  Whltefleld  Tanning  Company. 
There  was  verdict  for  plaintiff,  and  defend- 
ant excepts.  Transferred  from  the  superior 
court  E2sceptloa  sustained,  and  new  trial 
granted. 

Case,  for  th«(  recovery  of  damages  to  real 
and  personal  property  occasioned  by  the  pol- 
lution of  John's  river  in  Dalton,  by  anthrax 
germs  from  the  defendants'  tannery  located 
on  the  river  at  Whltefield.  Trial  by  Jury, 
and  verdict  for  the  plaintiff.  Exceptions 
were  taken  by  the  defendants  to  the  exclu- 
sion of  evidence,  to  the  charge  of  the  court 
and  to  the  denial  of  tbe  defendants'  motion 
for  a  directed  verdict  Tha  facts  sufficiently 
appear  in  the  opinion. 

Gobs  &  James,  of  Berlin,  and  E.  M.  Bow- 
ker,  of  Whitefield,  for  plaintiff.  Drew, 
Shuitl^,  Morris  &  Oakes,  of  Lancaster,  for 
defendant 

FLVMMER,  J.  The  defendants  In  support 
of  their  motion  for  a  directed  verdict,  con- 
tend that  the  evidence  of  tbe  plaintiff  was 
not  sufSclent  to  warrant  the  verdict,  be- 
cause It  could  not  be  found  on  the  evidence 
that  the  anthrax  germs  which  causefd  the 
damage  to  the  plaintiff  came  from  the  tan- 
nery while  operated  by  them.  The  plaintiff 
owns  and  carries  on  a  farm  of  100  acres 
situated  on  the  northeast  side  of  John's  river 
in  Dalton  about  five  miles  below  the  defend- 
ants' tannery.  Thirty  acres  of  the  farm  Is 
tillage,  and  the  remainder  Is  pasture  and 
brush  land.  The  building  in  which  the  tan- 
nery is  located  Is  owned  by  the  town  of 
Whltefleld,  and  was  first  occupied  and  used 
as  a  tannery  for  sefveral  years  by  Bernard  & 
Son,  and  following  them  Obendorff  &  Adler 
operated  a  tannery  therein  from  July  or  Au- 
gust 1914,  to  April,  1916.  The  defendants 
took  possession  In  May,  1915,  and  begran  the 
operation  of  the  tannery  May  15,  1915. 
There  Is  considerable!  water  used  In  the  va- 
rious processes  of  tanning  tbe  hides,  and  all 
the  waste  runs  Into  a  sewer,  which  empties 
into  John's  river.  Great  care  Is  taken  to 
save  all  the  trimmings,  fleshings,  and  hair 
from  the  hides,  that  by  custom  belong  to  the 
defendants,  but  some  of  the  hair  is  washed 
Into  the  sewer.  There  was  evidence  that  the 
tannery  was  kept  in  a  clean  condition.  All 
the  hides  tanned  by  the!  defendants  previous 
to  the  bringing  of  this  suit  August  16,  1915, 


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101  ATIiAKTIC  REPORTER 


(N.H. 


were  foreign  hWes.  The  flret  hides  tanned 
were  500  from  South  America,  which  were 
tanned  May  15th,  16th,  17th,  and  18th.  The 
next  hides  were  47  l^nown  as  Rangoons  from 
India,  which  were  tanned  May  23d.  On 
June  10th  the  defendants  received  1,000 
China  hides  for  tanning,  and  from  then  to 
the  bringing  of  tills  action,  the  tannery,  or 
some  part  of  it,  was  in  conttnuous  operation, 
tanning  these)  China  hides.  Anthrax  is  prev- 
alent In  China  and  many  foreign  countries. 
Under  government  regulations,  if  hides  Im- 
I>orted  from  Argentine  are  accompanied  by  a 
certificate  of  the  American  consul,  stating 
tliat  the  animals  from  which  the  tildes  wefre 
taken  were  killed  in  abattoirs  under  govern- 
ment Inspection,  they  are  admitted.  But  if 
hides  are  Imported  from  China,  in  order  to 
be  admitted,  they  most  be  accompanied  by 
a  certificate  sworn  to  by  the  American  con- 
sul, stating  that  they  have  been  immersed 
for  at  least  30  minutes  In  a  1  to  1,000  solu- 
tion of  bichloride  of  mercury,  which  is  effec- 
tive to  kill  both  germs  and  sporea.  If  such 
hides  arrlire  here  without  the  proper  certifi- 
cate, a  government  Inspector  sees  that  they 
receive  the  required  immersion  before  they 
can  be  tanned.  It  appeared  that  anthrax 
germs  in  the  spore  form  are  very  difficult  to 
destroy,  resisting  drying,  high  temperatures 
and  freezing,  and  that  damp  ground  and 
muck  holcjs  furnish  the  best  soil  to  promote 
the  growth  of  the  spores,  and  when  such 
ground  becomes  Infected  it  Is  likely  to  re- 
main so  for  many  years.  There  was  evi- 
dence that  the  predecessors  of  the  defend- 
ants In  the  tannery  tanned  domestic  country 
gathered  hides  from  the  West  and  South- 
west, and  that  anthrax  Is  more  or  less  prev- 
alent in  the  Southern  states  in  this  country, 
and  particularly  in  the  Mississippi  Valley. 
[1]  The  defendants  urge  that,  inasmuch  as 
the  evidence  shows  that  the  hides  which 
they  tanned  before  this  suit  was  brought 
were  all  foreign  hides  admitted  under  gov- 
ernment regulations,  It  Is  very  Improbable 
that  anthrax  germs  came  from  the  tannery 
while  operated  by  them,  and  that  it  Is  more 
probable,  considering  the  ability  of  the  germs 
to  live  in  the  soil,  that  the  germs  whldi  did 
the  injury  came  from  the  tannery  when  op- 
erated by  those  that  preceded  them,  who 
tanned  coimtry  gathered  hides,  and  therefore 
that  the  Jury  could  not  find  that  they  caused 
the  pollution  of  the  stream.  This  contention 
cannot  be  sustained.  Whatever  may  be  said 
in  support  of  the  defendants'  position,  it  can- 
not be  held  as  a  matter  of  law  that  the  Jury 
wcfre  not  Justified  in  finding  that  the  anthrax 
germs  that  killed  the  plaintiff's  cows  and 
inoculated  his  land,  came  from  the  tannery 
in  the  summer  of  1916.  Previous  to  that 
summer  the  occupants  of  the  plaintiff's  farm 
had  never  had  any  trouble  from  cattle  dying, 
and  cattle  did  not  suffer  any  ill  effects  from 
drinking  the  river  water,  when  Bernard  & 
Son  and  Obendorfl  &  Adler  were  operating 


the  tannery.  Betweoi  the  5th  and  10th  of 
July,  191S,  shortly  before  4  of  the  plaintiff's 
cows  died  of  anthrax,  the  water  in  John's 
river  rose,  due  to  heavy  rains,  and  overflow- 
ed the  piaintifTs  low  lands  In  which  his  cows 
were  pastured.  And  during  the  summer  the 
water  in  the  river  had  a  strong  odor  and  was 
filthy,  and  hair  and  pieces  of  fleshings  were 
floating  on  the  water.  The  plaintiff  bad  5 
cows  die  of  anthrax  in  1915.  Four  died  in 
July  as  above  stated,  and  1  that  died  in  De- 
cember got  out  of  ttie  plaintiff's  yard,  and 
wandered  down  onto  the  low  lands  and  to 
the  river.  Some  15  cattle  along  the  course 
of  John's  river  below  the  tannery  contract- 
ed the  disease  of  anthrax  in  the  year  1915. 
The  first  creature  died  of  it  on  June  22d. 
There  was  no  outbreak  of  the  disease  prior 
to  that  time.  There  were  no  known  caxes  of 
the  disease  except  on  farms  along  the  river 
below  the  tannery,  and  at  places  where 
meadow  hay  cut  on  the  John's  river  inter- 
vale was  being  fed.  The  evidence  disclosed 
that  Amos  Brown  had  cows  taken  sick  with 
anthrax  that  were  fed  with  hay  that  was 
cut  in  1915  on  a  meadow  below  the  tannery 
through  which  the  river  flows.  Washings 
from  this  hay  upon  examination  showed  an- 
thrax germs.  An  employ^  of  the  defendants 
testified  that  the  last  of  August  or  the  first 
of  September,  1915,  he  had  a  swelling  on  his 
ne<^  starting  with  a  pimple,  and  that  he 
went  to  a  hospital,  and  had  it  cut  out,  and 
the  physician  who  did  it  sent  the  tissue  to 
the  state  bacteriologist  at  Concord,  who 
found  that  it  contained  anthrax  germs.  The 
evidence  above  referred  to  Is  sufficient  to 
warrant  the  finding  of  the  Jnry  that  the  an- 
thrax which  destroyed  the  plaintiff's  proper- ' 
ty  came  from  the  defendants'  tannery  in  the 
summer  of  1915. 

[2]  The  evidence  offered  by  the  defendants 
tending  to  show  that  government  inspection 
and  disinfection  of  foreign  hides  was  effec- 
tual to  destroy  anthrax  germs,  and  that  the 
defendants  in  the  management  of  their  bnsi- 
ness  relied  upon  sudi  Inspection  and  disin- 
fection, which  was  excluded  subject  to  ex- 
ception, was  competent,  and  should  have 
been  admitted.  It  bore  directly  upon  the 
question  whether  the  pollution  of  the  stream 
by  anthrax  germs  was  due  to  the  defendants' 
want  of  care,  which  was  one  Issue  submitted 
to  the  Jury.    This  error  destroys  the  verdict. 

[3]  The  gist  of  the  plainttlTs  dlaim  was 
that  the  defendants  exercised  their  rights  of 
ownership  of  the  tannery  in  an  unreasonable 
manner,  and  thereby  caused  the  plaintiff's 
injury,  or  stated  more  specifically,  that  it 
was  unreasonable  for  them  to  put  anthrax 
germs  into  the  water,  which  was  turned  or 
allowed  to  run  Into  the  river  and  whldi 
poisoned  the  plaintiff's  cattle.  The  claim 
was  made  at  the  trial:  (1)  That  the  defend- 
ants had  no  right  to  empty  the  refuse  frooi 
the  tannery  Into  the  river;  and  (2)  they  could 
not,  in  the  reasonable  exercise  of  their  rights 


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BETTERLT  r.  BRATTLEBOBO  ST.  BT.  00. 


441 


as  owners  of  tbB  itreliulBeB,  put  anthrax  germs 
into  the  water  or  allow  it  to  be  polluted  In 
tluit  way.  But  the  defendants  did  not  claim 
the  right  by  virtue  of  their  ownership  of  the 
tannery  premises  to  put  poisonous  germs  in- 
to the  river.  The  right  the  defendants  did 
dalm  was  to  turn  the  general  refuse  of  the 
tannery  Into  the  stream,  and  they  admitted 
thdr  obligation  to  ezerdse  due  care  to  keep 
snch  refuse  free  from  anthrax  germs.  There 
was  no  evidence  the  defendants  kncfw  the 
refuse  carried  such  germs.  In  order  to 
charge  an  owner  of  real  estate  with  an  un- 
reasonable use  of  it,  it  must  appear  he  had 
actaal  knowlcjdge  of  its  alleged  use.  The 
question  whether  the  use  of  the  stream  as  a 
sewer  for  the  tannery  was  a  reasonable  ex- 
ercise of  the  dtfmdants'  riparian  right  was 
sabmitted  to  the  Jury,  but  no  claim  of  any 
damagO  from  such  use  was  made  except  that 
occasioned  by  anthrax.  As  the  defendants 
did  cot  claim  the  right  to  put  anthrax  into 
the  stream,  the  injury  the  plaintUF  alleged 
arose  not  from  the  rl^t  which  the  defend- 
ants claimed,  but  from  their  alleged  negli- 
gence In  the  exercise  of  a  right  claimed  by 
tbem.  Whether  they  had  the  right  to  turn 
the  refuse  of  the  factory  into  the  stream  or 
not,  as  the  damage  complained  of  did  not 
result  from  the  ezerdse  of  that  right,  it  Is 
Immaterial  whethcir  turning  the  general 
waste  into  the  stream  was  reasonable  or  not. 
The  submission  of  that  issue  to  the  jury 
might  tend  to  confuse  them  and  distract 
their  attention  from  the  real  Issne  whether 
the  prcisence  of  the  anthrax  in  the  stream 
was  due  to  the  defendants'  fault. 

[4]  This  issue  was  submitted  as  a  part  of 
the  question  of  reasonable  use,  but  at  anoth- 
er trial  the  issue  of  negligence  only  should 
be  submitted  unless  the  plaintiff  proves  dam- 
age from  the  exercise  of  the  right  which  the 
defendants  claim  as  appurtenant  to  their  ri- 
parian ownership.    All  concurred. 

Bxception  sustained. 

New  trial  granted. 


(91  Yt  too) 

BETTBBI/ir    V.    BRATTIiEBORO    STREET 

RT.  CO.  et  at 
(Snpreme    Comrt    of    Vermont.       Brattleboro. 

July  20,  1917.) 

1.  Railroads  «=3326(1)— Grosbirg  Aooidknt 

— CONTBIBCTOBT  NbguOBRCK. 

One  driving  a  sleigh  over  a  railway  cross- 
ing was  lK>und  to  ezerdse  ordinary  care  with 
reference  to  general  conditions  known  to,  and 
wUdi  must  necessarily,  exist  at  such  crossing 
during  the  sleighing  season,  and  the  amount  of 
snow  in  the  traveled  part  of  the  street  as  af- 
fecting the  slope  to  the  track  could  be  consid- 
ered in  passing  upon  the  question  of  contribu- 
tory negligence. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Edg.  H  1037,  103&] 

2.  Railboads  €=»330(1) — Gbossino  Accident 
—Right  to  Assume  Safettt  of  Obobsino. 

One  driving  a  sleigh  over  a  railroad  cross- 
ing coald  assume  that  the  track  was  kept  in  a 


reasonably  safe  condition,  and  could  not  be 
charged  with  negligence  in  failing  to  notice  a 
defect,  unless  it  was  so  obvious  that  it  ought 
to  have  been  seen  by  one  approaching  the  cross- 
ing with  ordinary  prudence. 

[Ed.  iNote. — For  other  cases,  see  Railroads, 
Cent  Dig.  |  1071.) 

3.  Baiuioaos  9=>350(15)  —  CRossnro  Acci- 
dent—Contbibutobt  Nkolioenok— Ques- 
tion FOB   JUBT. 

Evidence  showing  that  plaintiff  drove  a 
sleigh  over  a  railway  crossing  at  the  rate  of 
four  or  five  miles  an  hour,  and  that  he  failed 
to  notice  the  undue  prominence  of  a  rail  which 
overturned  liia  sleigh  held  insufficient  to  show 
contributory  negligence  as  a  matter  of  law. 

[Ed.  Note.— For  other  cases,  see  Bailroads> 
Cent  Dig.  {  116a] 

4.  Railxoadb  «s»324(4)— Cbossiko  Aocidcnt 

— OONTBIBUTOST    INKOUOKNCB— MANNBB    09 

Dbiviro. 
The  fact  that  one  drove  a  horse  over  a  rail- 
way crossing  at  a  trot,  and  that  the  speed  was 
not  lowered,  would  not  charge  him  with  negli- 
gence if  the  speed  was  no  greater  than  ordinary 
prudence  permitted. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  S  1025.] 

5.  Tbial  <g=9296(4,  6)— Rxfubai.  of  Riquxst 
—Cube  by  Otheb  Instbuctions. 

Refusal  of  a  request  upon  the  measure  of 
plaintiff's  duty  in  driving  over  a  railwajr  track 
held  not  to  have  been  cured  by  givui  instruc- 
tions. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  709.1 

6.  Tbial  €=362(2)— Rbckption  of  Evidenck— 
Rebuttal. 

Plaintiff  had  a  right  to  rebut  medical  evi- 
dence showing  that  he  could  not  have  survived 
a  certain  dislocation  testified  to  by  plaintiff's 
physician,  resulting  from  a  railway  crossing 
accident  by  showing  that  one  who  had  received 
such  a  dislocation  could  not  only  live,  but  could 
be  free  from  paralysis. 

[Ed.  Note. — ^For  other  cases,  see  Trial,  Cent 
Dig.  S  149.1 

Exceptions  from  Windham  County  Court; 
Frank  Ia  Fish,  Judge. 

Action  by  Thomas  F.  Betterly  against  the 
Brattleboro  Street  Railway  Company  and  an- 
other. Judgment  for  plaintiff,  and  both  par- 
ties bring  exceptions.  Exertions  sustained, 
Judgment  reversed,  and  cause  remanded. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASBI/TON,  POWERS,  and  TAY- 
LOR, JJ. 

Barber  &  Barber,  of  Brattleboro,  for  plain- 
tiff. Clarke  C.  Bitts,  of  Brattleboro,  and 
Harold  B.  Whitney,  for  defendants. 

MUNSON,  O.  J.  The  plaintiff  was  injured 
by  being  thrown  from  his  sleigh  while  cross- 
lug  the  street  railway  track  in  Brattleboro. 
He  has  recovered  a  Judgment,  and  both  par- 
ties present  exceptions.  The  only  exceptions 
argued  by  the  defendants  are  to  the  refusal 
of  the  court  to  direct  a  verdict  In  their  favor, 
and  to  its  failure  to  comply  with  certain  re- 
quests for  instructions.  All  their  exceptions 
relate  to  the  question  of  contributory  negli- 
gence. 

The  plaintiff  testified  that  there  was  good 


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sleighing  ftt  this  time,  not  a  great  deal  of 
snow,  a  few  Inches,  and  that  yon  would  nat- 
urally go  down  slightly  in  passing  upon  tho 
railway.  All  that  is  claimed  in  the  defend- 
ants' statement  of  the  case  is  that  the  snow 
made  the  traveled  portion  of  the  highway 
somewhat  higher  than  the  railway  crossing. 
The  Jury  has  found  by  special  verdicts  that 
the  accident  was  caused  by  the  sleigh  bitting 
the  running  rail,  and  on  account  of  the 
absence  of  a  proper  plank  guard  along  the 
side  of  it  There  was  evidence  that  the  plain- 
tiff had  not  crossed  bere  before  daring  that 
winter. 

The  plaintiff  testified  that  Ills  horse  was 
trotting.  Jogging  along  five,  six,  or  seven 
miles  an  hour;  that  he  made  no  difference 
in  the  speed  on  coming  to  the  track ;  that  be 
took  all  the  care  that  anybody  could;  that 
be  did  not  see  any  obstacles,  did  not  look 
ahead  to  see  If  there  were  any,  and  did  not 
expect  any;  that  be  was  driving  along  un- 
concerned; that  be  did  not  have  in  mind  bow 
the  track  crossed,  or  what  the  effect  would 
be  in  striking  the  rail  on  a  curve;  and  that 
the  fact  that  be  was  about  to  cross  a  track 
did  not  occur  to  him.  Mrs.  E^tey,  a  witness 
for  the  idaintiff,  testified  that  as  she  was 
coming  from  an  Intersecting  street  she  saw 
the  plaintiff  coming  down  towards  the  rail- 
way crosdng;  that  be  was  driving  along  at 
a  very  slow  pace,  not  more  than  four  or  five 
miles  an  hour;  and  that  he  was  thrown  out 
right  in  front  of  her  as  she  waited  for  him  to 
get  by. 

[1-3]  The  defendants  insist  that  the  plain- 
tiff's testimony  as  to  the  manner  In  which  he 
approached  and  came  upon  the  crossing  en- 
titled them  to  a  directed  verdict  It  is  evi- 
dent, however,  that  the  amonnt  of  snow  in 
the  traveled  part  of  the  street,  as  affecting 
the  slope  to  the  track,  is  an  element  to  be 
considered  in  passing  upon  the  question  of 
contributory  negligence.  The  plaintiff  was 
I>ound  to  exercise  ordinary  care  with  refer- 
ence to  the  general  conditions  which  are 
known  to  e.\ist,  and  must  necessarily  exist, 
at  such  a  crossing  during  the  sleighing  sea- 
son. But  he  had  a  right  to  proceed  upon  the 
assumption  that  the  track  was  kept  In  a  rea- 
sonably safe  condition,  and  be  cannot  be 
charged  with  negligence  in  falling  to  notice 
the  defect,  unless  It  was  so  obvious  that  it 
ought  to  Iiave  been  seen  by  one  approaching 
the  crossing  with  ordinary  prudence.  We 
think  it  cannot  be  said  as  matter  of  law  that 
the  plaintiff  was  guilty  of  negligence  in  driv- 
ing upon  the  crossing  at  the  rate  of  four  or 
five  miles  an  hour,  or  in  falling  to  exercise 
a  closeness  of  observation  that  would  have 
informed  him  of  the  undue  prominence  of  the 
rail. 

[4]  We  think  the  defendants  were  not  en- 
titled to  instructions  in  the  terms  of  the  sec- 
ond and  fourth  requests.  One  or  two  sugges- 
tions will  indicate  our  view.  A  man  may 
drive  onto  a  crossing  without  giving  it  a 
thought,  and  yet  drive  onto  It  in  a  manner 


which  meets  the  reqnirement  of  tke  law.  If 
the  speed  at  which  the  plaintiff  came  upon 
the  crossing  was  no  greater  than  ordinary 
prudence  permitted,  the  fact  that  the  gait  of 
the  horse  was  a  trot,  and  that  the  speed  was 
not  lowered,  would  not  charge  him  with  neg- 
ligence. The  language  of  the  fifth  request 
might  easily  be  thought  to  refer  to  the  physi- 
cal situation  alone,  and  so  mislead  the  Jury 
to  the  plaintiffs'  injury.  The  situation  at 
the  crossing  as  it  actually  existed  was  to  be 
considered  in  connection  with  the  situation 
which  the  plaintiff  had  a  right  to  expect 
there,  and  what  reasonable  pmdence  requir- 
ed of  him  in  such  circumstances. 

[S]  The  third,  seventh,  and  eighth  requests, 
like  the  others,  are  based  upon  different  fea- 
tures of  the  plaintiff's  testimony  dlscripttve 
of  bis  driving.  The  seventh  is  taken  up  spe- 
cially by  defendants'  counsel  as  the  best 
illustration  of  their  claim.   It  reads: 

"If  a  prudent  man  would  naturally  slow  up 
the  gait  of  his  horse  as  h«  approached  the 
tracks  as  Betterly  did,  then  it  was  incumbent 
upon  Betterly  to  slow  up,  and  his  failure  to  do 
BO  precluded  his  recovery  in  this  action,  if  the 
jury  found  that  the  gait  at  which  he  was  coins 
bad  anything  to  do  with  throwing  him  out  of 
the  sleigh." 

The  defendants  claim  that  the  refusal  of 
the  court  to  comply  with  any  of  their  requests 
left  the  charge  without  any  application  of 
the  general  rule  given  the  Jury  as  the  meas- 
ure of  the  plaintiff's  duty. 

The  only,  general  definition  of  negligence 
was  that  given  in  stating  the  duty  of  the  de- 
fendants. The  Jury  was  afterwards  told,  in 
substance,  that  if  the  plaintiff  was  negligent 
in  any  degree  in  anything  that  contributed  to- 
his  injury,  he  oould  not  recover;  that  if  be 
was  not  without  fault  as  be  approached  the 
crossing,  the  defendants  were  entitled  to  a 
verdict.  The  only  statement  in  the  nature  of 
an  application  of  this  rule  to  the  facts  of  tbe 
case  was  made  in  that  part  of  the  charge  in. 
which  the  court  submitted  certain  special  in- 
quiries respecting  the  cause  of  the  accident, 
and  stated  the  claims  of  the  parties  regard- 
ing them.  It  was  made  with  reference  to  the 
inquiry  whether  the  accident  was  caused  by 
the  absence  of  a  proper  plank  guard,  and  was 
in  these  terms: 

"The  defendants  say  the  crossing  was  in  good 
order,  had  all  the  planks  and  other  things  that 
were  necessary  and  proper  for  the  safety  of  the 
public,  and  that  the  driving  of  the  plautiC  at 
the  time  onto  the  crossing  as  he  did,  the  cross- 
ing being  more  or  less  bare,  the  result  was  a 
natural  one,  and  tbe  bialt  was  the  plaintiff's ; 
he  should  have  halted  bis  horse  and  driven  more 
slowly  upon  the  creasing,  because  it  is  known 
of  all  men  that  you  can't  drive  onto  a  piece  of 
bare  ground  with  rails  on  it  Uke  this  without 
jolting  the  sleigh  somewhat." 

The  court  concluded  this  presentation  by 
saying: 

"There  is  the  whole  question,  in  four  pn^tosi- 
tions,  for  you  to  determine." 

The  seventh  request  contained  a  suffldent- 
ly  complete  and  accurate  statement  of  the 
plaintiff's  duty  to  entitle  the  defendant  to  a 


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'Compliance  with  It  In  terms  or  In  substance. 
It  called  for  a  specific  application  of  the  law 
of  the  subject  to  the  case  presented  by  the 
«vidence.  The  Jury  was  told  that  the  plaln- 
tur  could  not  recover  unless  he  was  free  from 
ianlt,  but  was  given  no  particular  test  as  the 
measure  of  his  conduct  The  reference  to  the 
case  of  a  careful  and  prudent  man  as  the 
standard  in  cases  of  this  kind  was  preceded 
and  followed  by  comments  which  directed  the 
attention  of  the  Jury  to  the  care  exercised 
by  the  defendants.  There  was  no  direct  and 
«zp1anatory  presentation  of  the  rule  of  lia- 
bility in  its  relation  to  the  plalntlflr.  The 
frame  of  the  charge  in  other  respects  was 
sacb  as  to  malce  this  omission  materiaL  The 
court  submitted  Inquiries  regarding  the  ex- 
istence and  effect  of  certain  physical  con- 
ditions whldh  were  claimed  to  have  caused 
the  accident,  and  referred  to  these  as  cover- 
ing the  whole  question.  Later  in  the  durge 
the  Jury  were  told  tliat  if  they  found  that 
any  of  these  causes  produced  the  injury,  and 
that  the  defendant  was  negligent  in  that  par- 
ticular, it  would  be  their  duty  to  assess  dam- 
ages. The  accident  might  have  been  cansed 
by  any  one  of  the  claimed  defects,  and  yet 
the  defendants  have  been  absolved  from  lia- 
bility by  the  conduct  of  the  plaintiff.  The 
failure  of  the  court  to  comply  with  the  de- 
fendants' request  for  a  specitic  application  of 
the  law  of  negligence  to  the  conduct  of  the 
plaintiff,  left  the  Jury  quite  liable  to  be  mis- 
led by  the  subsequent  incomplete  instmctiona 
llie  duty  imposed  upon  the  plaintiff  by  the 
law  of  the  subject  was  not  adeqiiately  pre- 
sented to  the  Jury. 

[I]  The  plaintlfTs  exceptions  relate  solely 
to  the  question  of  damages.  His  evidence 
tended  to  show  that  when  thrown  from  the 
sleigh  he  struck  upon  his  right  shoulder  and 
bead,  and  received  injuries  which  were  seri- 
ous and  permanent.  The  defendants  claim- 
ed, and  their  evidence  tended  to  show,  that 
the  plaintiff's  injuries  were  not  serious  and 
permanent.  It  was  not  claimed  that  the 
plaintiff  suffered  from  paralysis.  Dr.  Lynch, 
the  physician  who  first  attended  him,  tes- 
tified that  he  thought  be  had  received  a  par- 
tial dislocation  of  the  atlas  and  axla  On 
cross-examination  the  doctor  said  that  a  man 
who  bad  suffered  such  a  dislocation  could 
live,  and  that  be  had  read  of  cases  of  that 
kind.  The  defendants  called  physicians,  who 
testified  that  if  the  plaintiff  bad  received 
such  a  dislocation,  it  would  have  resulted  in 
bis  Immediate  death  or  paralysia  The  plaln- 
tifl  called  Dr.  Lynch  In  the  rebuttal,  and 
asked  him  if  in  bis  Judgment  that  was  a  fact, 
and  the  evidence  was  excluded  as  not  rebut- 
ting. The  exclusion  was  error.  Dr.  Lynch 
supported  bis  theory  of  a  partial  dislocation 
by  saying  on  cross-examination  that  one 
could  receive  such  a  dislocation  and  live. 
The  defense  Introduced  witnesses  who  testi- 
fl<>d  in  effect  that  the  plaintiff  could  not  have 


received  the  dislocation  dalmed,  for  If  he  bad 
it  would  have  resulted  in  death  or  paralysia 
The  plaintiff  was  entitled  to  rebut  this  denial 
by  evidence  that  one  who  had  received  such  a 
dislocation  could  not  only  live  but  be  free 
from  paralysis. 

The  exceptions  of  both  parties  are  sustain- 
ed, and  the  case  will  go  back  for  a  retrial  of 
all  questiona 

Judgment  reretsed,  and  canse  remanded. 

(>1  Vt  S2S) 
BLOUIN  V.  GREENE  et  aL 
(Supreme  Court  of  Vermont.    Franklin.    July 
16.  1917.) 

1.  Gabhuhkent  «ss>4— Natubk  o*  Action. 

P.  S.  1657,  providing  that  contract  and 
account  actions  may  be  commenced  by  trustee 
process,  does  not  authorize  oommendng  a  tort 
action  by  such  process. 

[Ed.  Note.— For  other  cases,  see  Garnishment, 
Cent  Dig.  {  8.] 

2.  GARmsHifENT  iB-.jI    Natttkk  or  Acnoir. 

The  rule  that  a  tort  action  cannot  be  com- 
menced by  trustee  process  is  not  changed  by 
Practice  Act  (Acts  1916.  No.  SO)  «  3  and  4, 
authorizing  amendment  of  pleadings  In  form  and 
substance,  and  county  court  rule  No.  10,  pro- 
viding that  misdescription  of  the  form  of  action 
shall  not  be  fatal,  since  such  provisions  relate 
to  defects  in  pleadings,  and  not  in  process. 

[Ed.  Note.— For  other  cases,  see  Garnishment, 
Cent  Dig.  i  3.] 

Exceptions  from  City  Court  of  St.  Albans ; 
N.  N.  Post,  Judge. 

Action  by  Octave  Blouln  against  W.  B. 
Greene  and  the  Richford  Savings  Bank  & 
Trust  Company,  as  trustee.  Judgment  for 
plaintiff,  and  the  principal  defendant  excepts. 
Reversed,  and  complaint  dismissed. 

Argued  before  MUNSON,  O.  J.,  and  WAT- 
SON, HASELTON,  POWERS,  and  TAX- 
LOR,  JJ. 

McFeeters  &  McFeeters,  of  Enosbnrgb 
Falls,  for  plaintiff.  Fred  L^  Webster,  of 
Swanton,  for  defendonta 

MUNSON,  O.  J.  The  plaintiff  has  declared 
In  tort  for  Injuries  to  his  automobila  The 
writ  issued  as  a  trustee  process,  and  was 
served  "In  the  usual  way"  on  both  principal 
defendant  and  trustee.  The  defendant  plead- 
ed the  general  issue  with  notice  of  matter  In 
set-off.  Before  trial,  and  while  the  Jury  was 
being  Impaneled,  the  trustee  appeared,  made 
disclosure  of  no  funds,  and  was  discharged. 
It  was  agreed  that  the  defendant  might  with- 
draw the  notice  given  with  his  plea.  After 
the  Jury  was  impaneled  and  sworn,  and  be- 
fore any  evidence  was  Introduced,  the  de- 
fendant filed  a  motion  to  dismiss  the  wilt, 
which  assigned  for  causes  that  the  writ  was 
Issued  and  served  as  a  trustee  process  and 
was  void,  and  tbat  the  court  had  no  Juris- 
diction of  the  process  or  the  cause  of  action. 
Upon  the  filing  of  this  motion  the  plaintiff 
asked  leave  to  dismiss  the  action  as  to  the 
trustee;  whereupon  the  court  overruled  the 


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101  ATLANTIC  RKPOBTER 


(Me. 


defendant's  motion  to  dismiss  the  ^rrit,  and 
permitted  the  plaintiff  to  dismiss  the  action 
as  to  the  trustee,  and  allowed  the  defendant 
an  exception  to  each  ruling.  A  trial  by  Jury 
was  then  had,  with  verdict  and  Judgment  for 
the  plaintur. 

If  not  aftected  by  recent  legislation,  the 
law  governing  this  case  Is  well  settled.  An 
action  of  tort  cannot  be  commenced  by  trustee 
process ;  and,  if  so  brought,  it  cannot  be  sus- 
tained against  the  principal  defendant  by 
discharging  the  trustee,  or  striking  oat  the 
tiTistee  clause.  Such  a  proceeding  is  without 
authority,  and  gives  the  court  no  jurisdiction. 
Ferris  v.  Ferris,  25  Vt  100;  HiU  ▼.  Whitney, 
16  Vt  461. 

The  plaintiff  contends  that  the  case  is  gov- 
erned by  No.  90,  Acts  of  1915,  known  as  the 
Practice  Act  Special  attention  is  called  to 
section  3  of  the  act  as  construed  and  ampli- 
fied in  county  court  rale  10.  This  section 
provides  that: 

"No  pleading  shall  fail  for  want  of  form,  but 
shall  be  amended  in  matters  of  form  at  any 
stage  of  the  proceedings  if  the  fault  is  pointed 
out" 

The  rule  referred  to  contains  this  provi- 
sion: 

"The  misdescription  of  a  form  of  action  in 
a  complaint  or  the  bringing;  of  an  action  in 
the  wrong  form,  shall  not  vitiate  the  complaint 
nor  be  fatal  to  the  right  of  action ;  and  the 
provisions  of  section  3  of  said  act  shall  apply 
to  such  fault" 

It  is  provided  further  In  section  4  of  the 
act  that: 

"Pleadings  may  be  amended  in  matters  of 
substance  at  any  stage  of  the  proceedings  un- 
der the  direction  and  in  the  discretion  of  the 
court    •    •    •" 

These  provisions  seem  to  sustain  the  plain- 
tiff's position,  unless  the  question  Is  still  to 
be  regarded  as  Jurisdictional. 

[1]  The  right  to  proceed  by  trustee  pro- 
cess depends  solely  upon  the  statute,  and  P. 
S.  1657,  the  section  giving  the  right  does  not 
authorize  it  in  actions  of  tort  But  In  cases 
where  the  right  Is  given  the  process  is  merely 
an  incidental  proceeding  in  a  suit  brought  to 
enforce  collection,  directly  from  the  debtor. 
DlvoU  V.  Nichols,  70  Vt  537,  41  AU.  972.  It 
was  urged  in  the  cases  above  cited  that  a 
writ  and  declaration  in  trespass,  containing 
the  trustee  clanse,  were  good  In  form  and 
substance  as  against  tlie  principal  defendant 
and  could  be  sustained  by  discharging  the 
trustee  and  proceeding  against  the  defendant 
as  upon  a  common  law  process.  The  court 
conceded  that,  if  the  trustee  were  discharged, 
and  the  trustee  clause  struck  from  the  record, 
there  would  still  remain  a  legal  process  and 
declaration,  in  form  at  least  against  the 
principal  defendant  but  considered  that  it 
was  prevented  from  so  treating  ihem  by  the 
fact  that  there  was  no  authority  in  law  for 
commencing  the  suit  in  that  manner. 

[2]  If  we  adhere  to  the  views  expressed  in 
the  eases  above  cited,  we  cannot  sustain  the 


plaintiff's  position  without  holding  that  the 
Practice  Act  and  the  rule  of  court  relied  up- 
on have  disposed  of  the  Jurisdictional  ob- 
jection ;  in  other  words.  It  will  be  necessary 
to  hold  that  these  provisions  authorize  an 
amendment  that  will  so  change  the  process 
as  to  make  valid  that  which  in  its  inception 
was  void.  We  do  not  think  such  an  amend- 
ment comes  within  the  purpose  of  the  act 
Both  the  sections  relied  upon  relate  to  the 
amendment  of  defective  pleadings,  and  the 
defect  here  is  one  of  process,  and  not  of 
pleading.  We  find  nothing  in  the  act  wbicb 
contemplates  the  authorization  of  a  court  to 
amend  itself  into  a  Jurisdiction  wtaidt  It  did 
not  have  of  the  suit  as  brought  Bat  if  the 
act  were  held  to  authorize  a  rule  giving  this 
power,  there  has  been  no  attempt  to  exercise 
the  authority.  The  rule  in  question  provides 
merely  that  the  bringing  of  an  action  in  the 
wrong  form  shall  not  vitiate  the  complaint 
but  diall  be  deemed  a  defect  of  form  and 
subject  to  the  provisions  of  section  three  of 
the  act  It  manifestly  relates  to  questions  of 
pleading  and  not  of  process.  Thus,  iC  a 
plalntlfTs  right  of  action  calls  for  a  complaint 
in  contract,  and  he  has  declared  in  tort  the 
court  may  permit  an  amendment  to  cure  the 
defect ;  but  such  an  amendment  in  no  way  in- 
volves the  question  of  Jurladiction. 

The  process  in  this  case  issued  with  out 
authority  of  law,  and  so  was  void  from  tiM 
beginning ;  and  the  court  being  without  pro- 
cess, was  without  jurtsdl£tion.  It  follows 
that  It  was  powerless  to  allow  an  amendment 
and  that  It  should  have  sustained  the  motion 
to  dismiss. 

Judgment  reversed,  and  complaint  dismiss- 
ed, with  costs  to  defendant 


(116  He.  2S3) 
CHEIXIS  T.  COLE  et  aL  (two  casen). 

(Supreme  Judicial  Court  of  Maine.     July  16, 
1917.) 

1.  Frauo  iS=>9— Aotions— Riohts  or  Pasties. 

Where  defendants  represented  to  plaintilfs 
that  corporation  stock  was  as  good  as  bonds  and 
was  a  good  investment,  when  in  fact  the  corpora- 
tion was  hopelessly  insolvent  and  soon  went 
into  receivership  and  bankruptcy,  with  a  pay- 
ment of  only  15  per  cent  to  creditors,  defend- 
ants were  liable  to  plaintiffs  for  the  fraud. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  I  8.1 

2.  FsAun  «=»30  — AcnoKS— RioBTS  or  Pas- 
ties. 

Where  one  defendant  desired  to  sell  corpo- 
ration stock  to  plaintiffs,  and  another  known  to 
plaintiffs  and  upon  whose  opinion  they  relied 
stated  to  them  that  the  stock  was  valuable,  wag 
as  good  as  bonds,  and  that  the  investment  was  a 
good  one,  be  as  well  as  the  seller  was  liable  for 
the  fraud. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  f  35.] 

3.  Fraud   e=»35— Actions-<Rioht8  of   Pas- 
ties. 

Where  the  certificates  of  stock  which  were 
the  subject  of  a  sale  procured  by  fraud  provided 


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445 


that  the  stock  waa  subject  to  redemption  at  a 
certain  amoant  i>er  share,  which  the  company  at 
one  time  interpreted  as  entitling  it  to  call  in  the 
stock,  the  purchaser  could  not  be  put  at  fault  in 
his  action  for  the  fraudulent  sale  on  account  of 
bis  failure  to  tender  the  stock,  especially  where 
the  company  was  bankrupt  and  could  not  have 
redeemed  the  stock  in  any  event. 

[Ed.  Note. — For  other  cases,  see  Fraud,  Cent 
Dig.  I  30.] 

Beport  from  Supreme  Judicial  Court,  York 
County,  at  Law. 

Two  actions,  by  Daniel  S.  CbelUs  and  by 
liudnda  M.  Chellls,  Us  wife,  against  Je- 
rome W.  Cole  and  another.  Cases  reported. 
Judgment  against  botb  defendants  In  eacb 
action. 

Argued  before  CORNISH,  C.  J.,  and 
BIRD,  HALBT,  HANSON,  and  MADI- 
GAN,  JJ. 

J.  Merrill  I/>id,  of  Kezar  Falls,  and  Matb- 
ewB  &  StevenB,  of*  Berwick,  for  plaintiffs. 
Emery  &  Wat^house,  of  Blddeford,  for  de- 
fendants. 

MADIOAN,  J.  Both  of  these  actions  are 
for  fraud  in  the  sale  of  stock  of  White's 
Express  Company,  a  New  York  corporation, 
doing  business  in  New  York  City  and  Brook- 
lyn. By  agreement  they  were  reported  to  the 
law  court  upon  so  much  of  the  evidence  as 
Is  legally  admissible,  the  law  court  to  rea- 
der final  Judgment  thereon. 

Daniel  S.  Chellis  was  about  60  years  old, 
and  had  lived  for  many  years  with  his  wife, 
the  other  plaintiff,  on  a  farm  in  a  small 
country  town  In  York  county.  They  had  on 
deposit  In  the  Umerlck  National  Bank  in 
said  county  $6,000,  $4,000  In  his  and  |1,000 
in  her  name.  The  defendant  Mills  was  from 
Mew  Haven,  and  a  stranger  to  the  plaintiffs, 
while  Cole  was  a  n^ghbor  and  was  known  to 
fbem  as  a  successful  trader  and  business 
man. 

On  Mardi  21,  1911,  the  defendants  drove 
Into  the  yard  of  the  plaintiffs'  home  and 
Cole  Introduced  Mills  to  Mr.  Chellls  and 
asked  him  to  take  the  defendants  Into  the 
bouse  as  they  wished  to  have  some  talk  with 
tbem,  Chellls  and  his  wife.  On  that  and 
two  or  three  succeeding  days  on  which  the 
Tlslta  were  repeated  several  hours  were  spent 
In  trying  to  Induce  the  plaintiffs  to  bny 
stock  in  the  express  company  which  Mills 
dalmed  to  represent  A  lengthy  statement 
jmrporting  to  show  the  exact  state  of  the 
company's  assets  and  liabilities  was  exhibit- 
ed and  explained.  Mills  vouched  for  the 
tmtta  of  everything  therein  contained  stat- 
ing tbat  with  an  expert  he  had  recently 
spent  some  weeks  making  a  complete  exami- 
nation of  the  affairs  and  condition  of  the 
company.  He  further  represented  that  its 
property  was  fully  insured,  and  its  business 
was  so  flourishing  that  the  officers  were  ob- 
liged to  bnlld  additional  buUdings  constant- 
ly, and  tbat  the  company  owned  all  of  its 
real  estate  and  terminals.  The  plaintiffs 
were     repeatedly    assured    that    everything 


about  the  company  was  an  right,  and  that 
the  stock  was  an  excellent  investment 

[]]  Because  of  the  representations  and  al- 
lurements and  advice  of  the  defendants 
Daniel  Chellis  bought  400  shares  of  the 
stock,  paying  therefor  $4,000,  and  his  wife 
bought  100  shares,  paying  therefor  $1,000. 
Four  quarterly  dividends  at  the  rate  of  7 
per  cent  per  annum  were  paid,  but  the  evi- 
dence clearly  shows  there  was  nothing  in 
the  condition  of  the  company  to  warrant  any 
one  of  these  dividends.  There  is  not  the 
least  doubt  that  the  company  was  hopeless- 
ly insolvent  when  the  stock  was  sold  to  the 
plaintiffs,  and  in  the  latter  part  of  1911  the 
company  was  in  the  hands  of  a  receiver, 
and  early  In  1912  it  was  in  bankruptcy.  A 
dividend  of  10  per  cent  was  paid  the  credi- 
tors with  the  prospect  of  a  possible  further 
final  dividend  of  5  per  cent  The  represen- 
tations made  to  the  plaintiffs  by  Mills  were 
untrue  in  fact,  and  of  his  liability  therefor 
there  is  no  question.  Wheelden  v.  Lowell, 
50  Me.  499;  Goodwin  v.  Fall,  102  Me.  353, 
66  Atl.  727;  Lltdifleld  ▼.  Hutchinson,  117 
Mass.  195. 

[2]  The  defendants  contend  that  Cole  la 
not  liable,  because,  at  the  most,  his  expres- 
sions were  merely  those  of  opinion.  His 
conduct  and  statements  were  the  controlling 
influence  whereby  the  plaintiffs  were  de- 
frauded. He  was  known  to  the  plaintiffs  to 
be  a  shrewd  and  successful  business  man, 
and  was  supposed  by  them  to  be  interested  In 
the  sale  of  the  stock.  On  three  occasions 
he  drove  with  the  defendant  MUls  in  a  bug- 
gy a  distance  of  four  miles  to  their  home, 
sat  by  and  participated  in  Mills'  conversa- 
tion. He  repeatedly  assured  the  plalntlffa 
that  the  stock  was  all  right;  that  it  was  a 
safe  Investment;  that  they  would  make  no 
mistake  in  taking  their  money  from  the  bank 
and  buying  this  stock;  that  it  was  Just  as 
good  as  the  bonds,  which  he  exhibited  to 
them.  A  check  for  $1,000  given  by  Daniel 
S.  Chellis  for  a  portion  of  this  stock,  made 
payable  to  the  order  of  Chas.  E.  Mills,  agent 
of  White's  Express  Company,  was  Indorsed 
by  Mills,  as  agent,  to  Cole,  who  evidently 
received  cash  for  the  same  at  the  bank,  as 
the  check  bears  no  further  indorsement 
While  it  is  not  necessary  for  the  maintenance 
of  this  action  to  show  collusion  between  C<de 
and  Mills,  this,  unexplained  as  it  Is,  Is  strong 
presiunptlve  evidence  that  Cole  was  person- 
ally secretly  profiting  by  the  sale  of  this 
stock  to  the  defendants.  In  Adams  v.  Col- 
lins, 196  Mass.  422,  82  N.  B.  498,  we  find 
the  following: 

"The  defendant  •  •  •  contends  •  •  • 
that  the  evidence  showed  tbat  the  statement 
was  made  aa  matter  of  opinion,  and  not  as  a 
representation  of  a  fact,  and  that  he  was  not 
liable  therefor.  But  he  was  the  third  party 
with  no  interest,  so  far  as  appears,  in  the 
trade.  And  he  was  bound  to  act  honestly  and 
in  good  faith,  not  only  in  regard  to  matters  of 
fact,  but  also  in  regard  to  matters  of  opinion. 
*     *     *     If  he  undertook  to  express  an  opin- 


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ion  he  waa  bound  to  give  his  honest  opinion. 
He  had  not  the  same  latitude  as  a  seller,  tor  the 
reason  that  the  buyer  in  dealing  with  the 
seller  would  naturally  be  supposed  to  be  on  his 
guard,  whereas  be  would  not  be  on  his  guard, 
*  *  *  in  dealing  with  a  disinterested  third 
person.  •  •  •  Being  liable  for  a  false  rep- 
resentation as  to  his  opinion,  as  well  as  for  a 
false  representation  in  respect  to  a  matter  of 
fact,  it  is  immaterial  which  the  allegations  were 
construed  by  the  presiding  judge  to  be." 

Also  in  Medbnry  v.  Watson,  6  Mete.  (Mass.) 
269,  39  Am.  Dec.  726,  there  is  a  marked  and 
obvious  distinction  between  the  cases  In 
which  there  is  a — 

"false  afSrmation  b^  the  vendor  to  the  ven- 
dee, where  the  maxim  'caveat  emptor*  applies, 
and  •  •  •  those  •  •  •  upon  the  false 
representations  of  a  third  person  with  regard 
to  the  value  of  the  property.  *  *  *  In  the 
one  the  buyer  is  aware  of  his  position;  he  is 
dealing  with  the  owner  of  the  property,  whose 
aim  is  to  secure  a  good  price,  and  whose  in- 
terest it  is  to  put  a  high  estimate  upon  his  es- 
tate, and  whose  great  object  is  to  induce  the 
purchaser  to  make  the  purchase:  while  in  the 
other  the  man  who  makes  the  false  assertions 
has  apparently  no  object  to  gain ;  be  stands  in 
the  situation  of  a  disinterested  person,  in  the 
light  of  a  friend,  who  has  no  motive  nor  in- 
tention to  depart  from  the  truth,  and  who  thus 
throws  the  vendee  oS  his  guard,  and  exposes 
him  to  be  misled  by  the  deceitful  representa- 
tions." 

See,  also,  Andrews  v.  Jackson,  168  Mass. 
266,  47  N.  E.  412,  37  L.  R.  A.  402,  60  Am. 
St  Rep.  390. 

In  this  case  the  defendant  was  turning 
over  In  part  payment  of  land  certain  notes 
of  a  third  party.  The  defendant  represented 
that  the  notes  were  as  good  as  gold,  and 
told  the  defendant  he  had  lent  money  to  the 
maker,  saying: 

"Do  yon  suppose  I  would  lend  my  money  to 
any  one  that  was  not  good?" 

Held,  that  the  evidence  was  sufficient  to 
warrant  a  finding  that  the  false  representa- 
tions were  actionable. 

The  conrt  says  that : 

"It  is  true  that  such  a  representation  may  be, 
and  often  is,  a  mere  expression  of  opinion. 
But  we  think  *  *  *  it  may  be  made  under 
such  circumstances  and  in  such  a  way  as  prop- 
erly to  be  understood  as  a  statement  of  fact 
upon  which  one  may    •    •    •    rely." 

In  Safford  v.  Grout,  120  Mass.  20,  the  rep- 
resentation was  that  the  maker  of  a  note  was 
of  ample  means  and  ability  to  pay  said  note 
and  that  the  note  was  good.  The  court  says 
that  these  were  statements  of  facts  suscepti- 
ble of  knowledge,  as  distinguished  from  mere 
matters  of  opinion  or  belief.  In  the  case  at 
bar,  made  under  the  circumstances  that  it 
was  made,  the  statement  of  Cole  that  the 
stock  was  a  safe  investment,  that  It  was  as 
good  as  his  bond,  that  it  was  safer  than  the 
bank,  is  seemingly  an  approval  of  all  repre- 
sentations made  by  Mills  as  to  the  assets  and 
liabilities  of  the  company.  These  statements 
were  made  in  conjunction  with  those  made  by 


Mills.  The  value  of  the  stock  depended  upon 
the  amount  of  stock  paid  in  and  upon  the 
available  assets  and  liabilities.  A  state- 
ment that  the  stock  was  good  and  a  safe  in- 
vestment was  equivalent  to  an  assertion  that 
the  express  company  was  solvent  The  plain- 
tiffs relied  upon  him,  and  not  upon  Mills, 
who,  unassisted  by  COle,  never  would  have 
defrauded  the  plalntitTs.  Under  the  decisions 
above  quoted  Oole  Is  equally  liable  in  these 
actions. 

[3]  But  the  defendants  say  that  there  was 
an  existing  contract  between  the  plalntifFs 
and  the  White's  Express  Company,  by  virtue 
of  which  the  plaintiffs  were  entitled  to  re- 
deem their  stock  at  any  time  and  receive  for 
each  share  of  stock  the  sum  of  $11.50,  and 
as  the  stock  had  never  been  tendered  to  the 
White's  Express  Company,  the  artlnns  are 
premature,  and  not  maintainable.  This  con- 
tention is  based  upon  the  following  clause  in 
the  certificates  of  preferred  stock : 

"This  stock  is  subject  to  redemption  at  $11.50 
per  share." 

The  prospectus  of  the  express  company  ex- 
hibited to  the  plaintiffs  at  the  time  of  the 
sale  and  on  file  in  the  case  as  plaintiffs' 
Exhibit  Na  27,  interprets  that  clause  as  fol- 
lows: 

"The  company  reserves  the  express  right  to 
call  in  the  preferred  stodi  at  115,  which  is 
$11.50  a  share  with  accumulated  asd  accrued 
dividends,  in  whole  or  in  part,  on  or  before 
January  1,  1916." 

As  this  placed  the  call  of  the  stock  at  the 
option  of  the  express  company,  and  not  at  the 
option  of  the  plaintiffs,  the  plaintUTs  cer- 
tainly could  not  have  been  at  fault  Further^ 
more,  it  is  clear  that  the  company  was  bank- 
rupt when  the  stock  was  sold,  and  was  in  no 
better  condition  when  it  ceased  paying  the 
dividends,  which  must  have  come  from  money 
belonging  to  the  creditors  and  not  to  the 
stockholden.  Any  attempt  to  have  the  stock 
redeemed  by  White's  Express  Company  must 
therefore  have  been  a  waste  of  energy. 
These  actions  are  not  for  breach  of  contract, 
but  are  actions  of  deceit  based  on  false  rep- 
resentations in  regard  to  the  sto(^  sold  to 
the  plaintiffs.  The  measure  of  damages  is  the 
difference  between  the  actual  value  of  the 
stock  at  the  time  of  the  purchase  and  its 
value  If  it  had  been  what  it  was  represented 
to  be.  The  tender  of  the  8to<A  to  the  Express 
Company  was  therefore  unnecessary.  An- 
drews V.  Jackson,  168  Mass.  269,  47  N.  E.  412, 
37  U  B.  A.  402,  60  Am.  St  Bep.  300 ;  Morse 
▼.  Hutchins,  102  Mass.  439. 

Judgment  against  both  defendants  in  favor 
of  Daniel  S.  Chellls  for  $4,000,  with  interest 
from  date  of  writ 

Judgment  against  both  defendants  in  ta.\ov 
of  Luclnda  Chellls  for  $1,000,  with  interest 
from  date  of  writ 


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447 


(Ue  He.  Its) 

OAKNSEZ  T.  OAKNSEZ. 

(Supreme  JudicUl  Court  of  Maine.     July  21« 
1917.) 

1.  WiLM  «=>740(3)  —  CoRTEAcas  BmwiKN 

DEVIBEES— CONBIDESATION. 

That  the  -widow  to  whom  testator  gave  all 
lu8  securities  for  life  allowed  the  sons,  the  re- 
siduary legatees  and  devisees  and  tremaindermen, 
to  use  certain  bonds  to  diadiarg«  debts  against 
the  real  estate,  is  consideration  for  their  con* 
tract  to  pay  her  annually  the  amount  of  inter- 
est on  the  bonds. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  S  1891.] 

2.  Rbueabe     «=>12(1)— PsoinsK— Consideba- 

TIOR. 

A  mere  verbal  statement  by  creditor  that  he 
will,  or  intends  to,  release,  or  that  he  does  re- 
lease, a  debtor,  being  without  conedderadon,  is 
of  no  binding  effect 

[Eld.  Note.— For  other  cases,  see  Release,  Cent 
Dig.  i  18.] 
'8.  IinKEE8T    ^=945  — Natdbb    ov    Pathknts 

Under  Contract. 
Under  agreement  of  sons,  in  consideration 
of  their  mother  allowing  them  to  use  bonds  in 
irhich  she  bad  a  life  interest,  to  pay  her  an- 
nually, for  life,  an  amount  equal  to  the  interest 
<Mi  the  bonds,  such  payments  are  not  interest,  as 
regards  their  bearing  interest  from  maturity. 

[Ed.  Note. — Por  other  cases,  see  Interest,  Cent 
Dig.  {  94.] 

Report  from  Supreme  Judicial  Court,  Tork 
County,  at  Law. 

Action  by  Mary  J.  Oarnsey  against  JuUa 
A.  Gamsey,  administratrix,  and  another. 
Case  reported.    Judgment  for  plaintiff. 

Ar^ed  before  CORNISH,  C.  J.,  and  BIRD, 
HAXiSX,  HANSON,  and  MADIOAN,  JJ. 

Lucius  B.  Swett,  of  Sanford,  and  Mathews 
&  Stevens,  of  Berwick,  for  plaintiff.  Allen 
A  Willard,  of  Sanford,  for  defendants. 

HAIiET,  J.  An  action  of  assumpelt  on 
a  contract  in  writing  of  the  following  tenor : 
"Sanford,  Maine,  May  2,  189a 
"For  value  received  we  jointly,  but  not  sever- 
■Tly,  promise  to  pay  to  our  mother,  Mary  J. 
Oarnsey,  annually,  during  her  life,  an  amount 
equal  to  the  interest  paid  by  the  Kennebec  Light 
&  Heat  Company  on  $3,800  face  value  five  per 
cent  bond,  maturing  in  the  year  1918. 

"F.  A.  Gamsey. 
"A.  E.  Gamsey." 

The  eotlon  Is  brought  by  Mary  J.  Gamsey, 
tbe  promisee  named  in  the  contract,  against 
Almon  B.  Oarnsey,  one  of  the  signers,  and 
Julia  A.  Gamsey,  administratrix  of  the  es- 
tate of  Fred  A.  Oarnsey,  the  other  Joint 
promisor.  The  case  Is  before  this  court 
upon  report 

The  plaintiff  Is  the  widow  of  Amos  Oarn- 
sey, whose  will  was  proved  and  allowed  April 
S,  1898,  In  the  probate  court  for  York  county, 
and  Frederic  A.  Gamsey  and  Almon  E. 
Gamsey,  two  sons  of  the  testator,  were  ap- 
pointed as  executors,  without  bonds,  as  re- 
<iuested  In  the  will.  JuUa  A.  Gamsey,  the 
administratrix  of  Frederic  A  Gamsey,  Is 
made  defendant,  and  Almon  E.  Oarnsey,  one 
of  the  executors  of  Amos,  is  the  other  de- 


fendant The  will  of  Amos  Gamsey,  by  item 
1  devised  and  bequeathed  to  his  two  sons, 
they  being  all  his  legal  heirs— 
"all  the  securities  whidi  he  owned  at  the  time 
of  his  decease,  including  stocks,  bonds,  notes  and 
other  securities  of  a  similar  character,  to  be 
held  by  them,  or  the  survivor  <^  them,  in  trust 
for  the  following  purposes: 

"1.  To  pay  the  income  thereon  as  it  accrues, 
to  my  wire,  Mary  Jane  Gamsey,  in  her  life  for 
her  own  use  and  disposition. 

"2.  Upon  the  decease  of  my  said  wife  to  di- 
vide the  securities  between  my  two  sons,  or 
their  heirs  by  right  of  representation.  I  give  my 
said  trustees  power  to  reinvest  any  monies, 
which  ma^  come  into  their  hands  in  payment  of 
the  securitieB,  upon  consultation  with  their 
mother,  and  with  ner  written  consent  to  change 
any  investments,  which  they  and  she  shall  deem 
it  for  the  interest  of  all  concerned.    •    •    • 

"II.  All  the  rest  and  residue  of  my  estate  of 
whatever  name  or  nature  or  whatever  situate, 
I  give,  devise  and  bequeath  to  my  two  sons, 
Frederic  A.  Gamsey  and  Almon  E.  Gamsey,  in 
equal  shares,  to  them,  their  heirs  by  right  of 
representation  and  assigns  forever." 

The  Inventory  returned  shows  |12,700  real 
estate,  personal  estate  $41,600,  and  the  bonds 
of  the  Kennebec  Light  &  Heat  Company  men- 
tioned In  the  agreement  were  not  included 
In  the  Inventory,  but  they  were  a  part  of  the 
estate  of  Amos  Gamsey,  and  were  converted 
by  the  two  executors,  and  the  proceeds  used 
to  pay  Indebtedness  of  the  estate.  The  will 
expressed  the  wish  that  the  parties  legally 
Interested  under  the  will  make  a  division  of 
the  property  according  to  the  terms  of  tb« 
will,  and  prevent  or  dispense  with  proceed- 
ings In  the  probate  court  The  parties  Inter- 
ested under  the  will  were  the  two  sons  and 
the  widow.  There  were  no  other  heirs,  and 
It  Is  evident  that  they  attempted  to  adjust 
the  matters  without  having  the  estate  fully 
administered  upon.  The  will  was  proved 
and  allowed  April  5, 1898,  and  there  was  no 
account  filed  in  the  probate  court  until  No- 
vember 21,  1913,  some  15  years  after  the  will 
was  proved,  and  that  account  was  never 
settled. 

[1]  It  Is  objected  that  there  was  no  con- 
sideration for  the  agreement  The  considera- 
tion Is  clearly  proved.  The  two  executors 
converted  the  bonds  mentioned  In  the  agree- 
ment, and,  according  to  the  claim  of  counsel 
and  the  testimony,  they  used  the  proceeds 
to  pay  debts  and  claims  upon  real  estate 
whldi  was  devised  to  them  at  the  death  of 
their  mother.  The  plaintiff,  as  the  widow 
of  Amos  Oarnsey,  had  a  right  to  waive  the 
provisions  of  the  will,  and  to  claim  her  one- 
third  Interest  In  the  real  estate,  which  was 
undoubtedly  worth  $4,000,  and  also  entitled 
to  a  third  of  the  rights  and  credits  after 
the  debts  of  the  estate  were  paid.  But,  In- 
stead of  doing  that,  she  gave  her  approval  of 
the  will  by  releasing  $3,800  worth  of  bonds 
so  the  executors  might  pay  the  debts  of  the 
estate  and  preserve  It  for  themselves  as  resid- 
uary legatees.  By  the  agreement  between 
the  plaintiff  and  the  executors  and  trustee* 
the  plaintiff  waived  the  right  to  have  them 


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101  ATIiAinriG  BSPORTBR 


(Me. 


bold  $3,800  worQ)  of  bonds,  and  sbe  be  paid 
the  Inc(Hne  therefrom  during  life,  and  ac- 
cepted In  lien  thereof  the  personal  obligations 
of  the  two  executors  and  trustees  to  pay  her 
the  amount  she  would  hare  received  as  in- 
terest on  the  bonds,  and  thereby  they  were 
permitted  and  authorized  to  convert  those 
bonds  Into  money,  which  tbey  did,  and  re- 
duced the  indebtedness  upon  the  real  estate 
that  was  to  descend  to  them  at  the  death  of 
tfaelr  mother  by  the  provisions  of  the  will 
of  their  father.  That  was  a  sufficient  con- 
sideration for  the  execution  by  the  executors 
and  trastees  of  the  agreranent  to  pay  the 
widow  according  to  the  terms  of  the  agree- 
m«it  declared  upon. 

[2]  It  is  the  claim  of  the  defendant  JuUa 
A.  Oamsey  administratrix,  that  the  plain- 
tlS  has  released  her  as  administratrix  of 
ber  husband  from  the  contract,  even  if  there 
was  a  sufficient  consideration  when  given 
by  the  two  sons  to  the  mother.  She  testi- 
fies: 

Hat  at  one  time  the  plaintiff  told  ber  sbe  did 
not  want  her  to  pay  the  obligation,  "didn't  ex- 
pect me  to  pay ;  she  didn't  need  it,  and  I  needn't 
worry  anything  about  it;  she  was  goin^  to  give 
it  to  me.  Slie  said  she  was  going  to  give  it  to 
Almon ;  she  was  givinp  it  to  me ;  she  intended 
to  use  us  just  alike;  that  on  several  times  the 
plaintiff  stated  that  she  did  not  expect  her  to 
pay  it,  and  didn't  want  her  to." 

Upon  the  other  hand,  the  plaintiff  is  posi- 
tive she  never  told  her  she  did  not  expect  her 
to  pay  anything  on  It  and  did  not  want  her 
to,  and  that  sbe  never  said  any  sudi  thing, 
and  that  she  did  expect  It 

The  circumstances  of  the  case  tend  to  sup- 
port the  testimony  of  the  plaintiff.  But,  even 
If  she  did  say  that  which  JuUa  A.  Oamsey 
claims  she  said  to  her,  it  was  not  a  release 
of  the  estate  of  Fred  A.  Qarnsey  from  the 
obligation  that  he  had  signed.  It  was,  at 
most.  If  the  defendant's  version  Is  right, 
a  mere  verbal  promise  without  consideration 
and  of  no  binding  effect.  In  order  for  It  to 
release  the  estate  of  Fred  A.  Oarnsey  from 
the  contract  made  and  signed  by  him,  it  was 
necessary  to  be  a  promise  upon  a  suffldent 
consideration.  There  was  no  consideration 
moving  from  any  one  to  Mary  A.  Garnsey 
to  release  the  estate  of  Fred  A.  Oamsey  from 
his  contract.  A  mere  statement  by  a  creditor 
tliat  he  intends  to  release,  or  that  be  does 
release,  a  debtor,  there  being  no  consideration 
moving  from  any  one  for  the  promise,  the 
debt  is  not  thereby  discharged.  The  debt 
was  created  by  contract  for  a  sufficient  con- 
slderaQon.  It  can  be  discharged  by  contract 
for  a  sufficient  consideration,  but  a  nalsed 
promise  to  release  without  consideration  is 
not  a  discharge. 

It  is  urged  that  this  suit  is  prosecuted  by 
the  defendant,  Almon  E.  Oamsey,  one  of  the 
Joint  promisors,  without  the  consent  of  his 
mother.  The  plaintiff  is  an  old  lady  and  has 
to  rely  upon  some  one.  He  Is  her  only  son, 
and  it  does  appear  tbat  sbe  r^ies  to  a  cer- 


tain extrait  upon  his  advice.  Sbe  signed,  of 
her  own  free  will,  tbe  notice  to  the  other 
defendant  that  the  note  must  l>e  paid.  There 
is  no  pretense  of  any  duress  or  anj*  fraud 
to  induce  her  to  sign  that  demand.  She  ap- 
pears in  court  and  prosecutes  the  suit.  It 
is  true  she  says  she  did  not  know  until  late- 
ly, referring  to  the  time  of  trial,  that  a  suit 
had  been  brougbt,  but  she  ratified  the  act  of 
ber  son  If  she  did  not  give  authority  In  the 
beginning,  and  we  have  no  doubt  i^m  the 
testimony  tbat  she  authorized  the  suit  to  be 
brought  at  the  time  it  was  brought. 

[1]  The  promise  declared  upon  was  tiie 
Joint  promise  of  Almon  E.  Oamsey  and  Fred 
A.  Oamsey,  and  by  a  Judgment  against  both 
defendants  either  of  the  defendants  can  pay 
and  have  contribution  from  the  other.  The 
payments  agreed  to  be  paid  were  not  Interest, 
but  yearly  payments.  They  were  payable, 
annually,  and  eadh  payment  bore  interest 
from  the  day  it  became  due.  Swett  v.  Hoop- 
er, 62  Me.  64;  Whitcomb  v.  Harris,  90  Me. 
211,  38  AtL  138.  The  mandate  must  be 
judgm«it  for  plaintiff  for  $190  annually  for 
the  years  declared  uiwn,  with  interest  at  5 
per  cent  on  the  payments  when  they  became 
due  to  the  date  of  the  writ  and  Interest  <m 
the  total  from  the  date  of  the  writ  to  the 
date  of  Judgment  of  the  May  term,  1917,  to 
be  cast  by  the  cleric 

Judgment  for  plaintiff  na  per  rescript 


McCAETHT  t.  INHABITANTS  OF  TOWN 
OF  LEEDS  (two  cases). 

(Supreme  Judicial  Court  of  Maine.     June  21* 

1917.) 
1.  BaiDoss  «=937— Umjcknbed  Automobilx 

— IdABiLrrT— "Tbavelek." 
Under  Pub.  Laws  1911,  c  162,  i  11  (Rev. 
St  1916.  c.  26,  i  28),  providing  that  no  automo- 
bile shall  be  operated  by  a  resident  of  the  state 
upon  any  highway  unless  registered,  and  in  view 
of  Rev.  St  1908,  c.  23,  I  66,  providing  that 
highways,  townways,  and  streets  legally  eetab- 
lished  shall  be  Icept  in  repair  so  as  to  be  safe 
for  travelers,  the  administrator  of  two  infant 
children  riding  in  an  automobile  with  their 
granduncle,  who  owned  the  madiine,  but  in 
whose  name  it  was  not  registered,  and  who 
were  IcQled  through  a  defective  bridge,  could 
not  recover  from  the  town;  the  word  "traveler" 
meaning  one  lawfully  a  traveler,  and  any  travd 
in  an  unregistered  automobile  being  unlawfuL 

[Ed.  Note.— For  other  cases,  see  Bridges, 
Cent  Dig.  fS  96,  103-105,  109. 

For  other  definitions,  see  Words  and  Phrases, 
Krst  and  Second  Series,  Travel;  Traveler.] 

Z   MUNICIPAt    COBPORATIONS    «=!»755(1) — Ds- 
FEirriVIC    HlOHWAT— iNJtTBIKS — LlABIX.rrT. 

Independent  of  statute,  there  is  no  liability 
on  the  part  of  municipalities  for  injuries  caused 
by  defective  highways. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  H  1587,  1689,  1500.] 

Madigan,  J.,  dissenting. 

Action  by  John  H.  McCarthy,  Jr.,  admin- 
istrator  of  two  McCarthy  children  deceased, 
against   the   Inhabitants   ot   the   Town   of 


ttsatoi  other  caaas  •••  aam*  tqplo  and  KST-NUUBER  Is  all  Kar-Mumb«rad  Dlgwta  and  ladsxM 


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McCarthy  ▼.  inhabitants  of  town  of  lebds 


449 


Leeds.     Judgment  for  defendants   in  each 
case. 

Argued  before  SAVAGE,  C.  J.,  and  COIU 
NISH,  BIRD,  HALEY,  HANSON,  PHIL- 
BROOK,  and  MADIOAN,  JJ. 

McGllllCTiddy  &  Morey,  of  LewJston,  for 
plaintiff.  Tascus  Atwood  and  H.  W.  Oakes, 
both  of  Auburn,  for  defendants. 

CORNISH,  J.  These  two  actions  were 
brought  against  the  defendant  town  under  B. 
S.  1903,  c.  23,  $  76,  to  recover  damages  for 
the  loss  of  life  of  two  children  aged  seven 
and  Dine,  respectively,  alleged  to  bare  been 
caused  by  the  failure  of  the  defendant  to 
keep  a  certain  bridge  over  Dead  river  in 
said  town  in  proper  and  reasonable  repair. 

On  tbe  day  of  the  accident,  July  22,  1913, 
one  John  H.  McCarthy  was  riding  in  Ills  au- 
tomobile, and  was  sitting  on  tlie  front  seat 
beside  tlie  chauffeur.  On  the  rear  seat  were 
the  two  little  girls,  his  grandnieces.  When 
the  automobile  reached  tlie  bridge,  one  of  tbe 
forward  wheels,  according  to  the  declaration 
in  the  writs,  struck  a  raised  plank,  thereby 
deflecting  the  machine  from  its  course  and 
taming  it  against  the  railing  which  proved 
to  be  weak  and  unable  to  withstand  the  Im- 
pact The  automobile  with  its  occupants  was 
precipitated  into  the  river.  Mr.  McCarthy 
was  rescued,  but  the  children  were  drowned. 

The  automobile  was  not  registered  in  tbe 
name  of  the  owner,  and  that  fact  is  the  piv- 
otal point  in  this  case. 

Suit  was  brought  by  Mr.  McCarthy  in  his 
own  behalf  against  the  town  to  recover  dam- 
ages for  injuries  to  himself  and  his  property, 
and  J-odgment  was  rendered  for  the  defend-, 
ant  on  the  ground  that  as  the  automobile 
was  not  registered  in  the  owner's  name  be 
was  pr<riilbited  from  using  it  on  the  high- 
way, and  the  town  owed  him  no  duty  to  keep 
the  way  safe  and  convenient  for  him  to  trav- 
el upon.  McCarthy  v.  Leeds,  115  Me.  134.  98 
Atl.  72,  Ia  R.  A.  19ieE,  1212. 

[1]  Tbe  two  suits  at  bar  were  subsequently 
brought  by  John  H.  McCarthy,  Jr.,  as  ad- 
ministrator of  tbe  estates  of  the  two  chil- 
dren, the  plaintiff  claiming  that  these  two 
passengers  have  a  right  of  action  against  the 
town,  even  if  the  owner  did  not  In  our 
opinion  they,  as  well  as  the  owner,  are  bar- 
red from  recovery. 

[2]  It  must  be  distinctly  borne  in  mind 
that  tbis  is  not  a  common-law  action  of  neg- 
ligence against  an  individual  or  a  corpora- 
tion, but  a  statutory  remedy  against  a  mu- 
nicipality, and  the  rights  of  the  traveling 
public  and  the  liability  of  the  municipality 
are  limited  by  the  scope  of  the  statute.  In- 
dependent of  statute  there  is  no  liability  on 
the  part  of  municipalities  for  injuries  caused 
by  defective  highways.  The  liability  Is  a 
creature  of  tbe  statute  (Haines  v.  Lewiston, 
84  Me.  18,  24  AtL  480;  Colby  v.  Pittsfleld, 
113  Me.  507,  95  AtL  1),  and  it  does  not  ex- 
101  A.-29 


tend  beyond  the  express  provisions  (Peck  v. 
Ellsworth.  36  Me.  393). 

What  then.  Is  the  measure  of  that  liabil- 
ity?   It  is  this: 

"Highways,  town  ways  and  streets,  legally  es- 
tablished, diall  be  opened  and  kept  in  repair  so 
AS  to  be  safe  and  convenient  for  travelers  with 
horses,  teams  and  carriages."  R.  S.  1903,  c. 
23,  S  56. 

Tbe  word  "travelers"  is  the  significant 
word  for  oar  consideration.  As  was  said  by 
this  court  in  McCarthy  v.  Portland,  67  Me. 
167.  24  Am.  Rep.  23 : 

"To  enable  the  plaintiff  to  recover,  he  must 
have  been  a  'travder.'  That  is  not  all.  He 
must  have  been  traveling  for  some  purpose  or 
other  for  which  streets  are  required  to  be  con- 
structed and  kept  in  repair.  A  person  may  be 
a  traveler,  but  not  such  within  the  contempla- 
timi  of  tbe  statute  which  gives  compensation 
for  an  injury  occasioned  by  a  defect  in  the  high- 
way. He  may  be  within  or  without  the  pro- 
tection of  the  statute,  and  still  be  a  traveler." 

It  was  accordingly  held  in  that  case  that 
one  who  uses  the  highway  for  the  express 
purpose  of  horse  racing  is  not  a  traveler  to 
whom  the  municipality  owes  the  statutory 
duty  of  keeping  its  street  in  repair.  Chil- 
dren using  a  street  as  a  playground  cannot 
be  regarded  as  travelers.  Stinson  v,  Gardi- 
ner, 42  Me.  248,  66  Am.  Dec.  281.  Nor  can 
a  runaway  horse.  Richards  v.  Enfield,  13 
Gray  (Mass.)  344;  Hlgglns  v.  Boston,  148 
Mass.  484,  20  N.  Bl.  105. 

Further,  In  order  to  be  within  the  protec- 
tion of  the  statute,  one  must  be  a  lawful 
traveler.  One  who  is  traveling  in  defiance  of 
a  statutory  prohibition  is  unlawfully  upon 
the  highway.  Take  for  Instance  traveling  on 
Sunday,  prior  to  tbe  passage  of  chapter  129 
of  the  Public  Laws  of  1805.  This  court  re- 
peatedly decided  that  when  a  person  received 
an  injury  through  a  defect  in  the  highway 
while  he  was  traveling  on  the  Lord's  Day, 
except  in  case  of  necessity  or  charity,  he 
could  not  recover.  Bryant  v.  Blddeford,  39 
Me.  193;  Hinckley  v.  Penobscot,  42  Me.  89; 
Cratty  v.  Bangor,  57  Me.  423,  2  Am.  Rep.  66. 
Tbe  Maine  rule  as  to  nonrecovery  in  such 
cases  was  also  the  rule  In  Massachusetts 
(Boswortb  V.  Swansey,  10  Mete.  [Mass.]  363, 
43  Am.  Dec.  441 ;  Jones  v.  Andover,  10  Allen 
[Mass.]  18;  Connolly  v.  Boston,  117  Mass. 
64,  19  Am.  Rep.  396;  Davis  v.  Somerville, 
128  Mass.  594,  35  Am.  Rep.  399);  and  in 
Vermont  (Johnson  v.  Irasburgb,  47  Vt  28,  19 
Am.  Rep.  111).  In  this  Vermont  case  tbe 
ground  on  which  the  rule  rests  Is  clearly  set 
forth.  New  Hampshire  held  the  contrary. 
Sewell  V.  Webster,  59  N.  H.  586. 

Precisely  tbe  same  principle  is  Involved  in 
the  case  at  bar  where  the  intestates  were 
traveling  in  an  unregistered  automobile. 
Such  a  vehicle  Is  proscribed.  Pub.  Laws 
1911.  C.  162,  I  11  (R.  S.  1916,  c.  26,  i  28) 
reads: 

"No  motor  vehicle  of  any  kind  shall  be  oper- 
ated by  a  resident  of  this  state,  upon  any  high- 
way, town  way,  public  street,  avenue,  drive- 
way, park  or  parkway,  unless  registered  as  prc^ 
vided  in  this  chapter,"  etc. 


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101  ATLANTIC  RBPOBTEE 


(3tfe. 


The  Legislature  had  the  power  and  the 
right  to  enact  this  prohibitive  legislation  for 
the  protection  of  its  citizens.  The  registra- 
tion of  a  car  and  the  display  of  Its  number 
plate  serve  to  ld«itlfy  the  owner  in  case  of 
Injuries  caused  by  negligent  conduct  in  Its 
operation.  Here,  as  in  the  case  of  the 
violation  of  the  Sunday  law,  it  is  not  a  ques- 
tion of  causal  connection  between  the  viola- 
tion of  the  statute  and  the  happening  of  the 
aoddent.  The  same  causes  would  be  at 
work  to  produce  an  accident  on  Monday  or 
Tuesday  as  on  Sunday.  So  In  the  case  at 
bar  the  more  nonregistration  can  hardly  be 
regarded  as  a  contributing  cause.  The  rail- 
ing of  the  bridge  had  no  more  strength  to 
withstand  the  Impact  of  a  registered  than 
of  an  unregistered  car.  The  true  theory  is 
that  this  imregistered  car  was  expressly  for- 
bidden to  pass  along  the  highway  and  over 
the  bridge.  The  municipality  was  not  oblig- 
ed to  furnish  any  railing  whatever  for  its 
protection.  This  is  the  ground  on  which 
McCarthy  v.  Leeds,  115  Me.  134,  98  Atl.  72, 
L.  R.  A.  19ieE,  1212,  was  decided,  and  it  is 
the  logical  ground  on  which  this  class  of 
cases  against  municipalities  rests. 

But  the  learned  counsel  for  the  plaintiff 
urges  that  even  if  Mr.  McCarthy,  Sr.,  the 
owner  of  the  car,  cannot  recover,  the  ban 
does  not  prevail  against  the  children  who 
were  merely  passengers.  He  discusses  the 
lack  of  contributory  negligence  on  their 
part  and  what  Is  true,  that  the  doctrine  of 
imputed  negligence  does  not  obtain  in  this 
state.  But  neither  of  these  questions  is  in- 
volved here.  The  question  of  contributory 
negligence  as  related  to  the  nonregistration 
Is  beside  the  mark.  It  is  not  a  question  of 
age  or  intelligence  or  knowledge  or  Intention 
on  the  part  of  the  occupants.  It  is  a  ques- 
tion of  fact.  It  Is  a  matter  purely  of  statu- 
tory prohibition.  All  the  occupants  are  un- 
der the  same  disability.  The  very  logic  of 
the  situation  prevents  any  discrimination 
between  them.  The  statute  does  not  relieve 
the  town  from  keeping  its  streets  in  repair 
merely  for  the  owner  of  an  unregistered  auto 
and  those  who  know  the  situation,  and  im- 
pose that  duty  upon  it  as  to  those  passengers 
who  have  no  such  knowledge.  Nor  does 
the  absence  of  the  doctrine  of  imputed  negli- 
gence aid  the  plaintiff.  Our  decision  is  not 
based  on  the  doctrine  of  negligence,  as  we 
have  already  stated.  It  Is  based  upon  the 
statutory  "thou  shalt  not." 

To  illustrate:  It  is  conceded  that  the  right 
to  use  the  highways  of  the  state  is  not  ab- 
solute, and  that  the  Legislature  has  tlie 
right  to  limit  and  control  their  use  whenever, 
in  the  exercise  of  the  police  power,  it  is 
necessary  to  promote  the  safety  and  general 
welfare  of  the  people.  It  can  prescribe  what 
vehicles  shall  use  the  highways  and  what 
shall  not  It  can  absolutely  close  certain 
streets  to  certain  traffic.  Commonwealth 
T.  Kingsbury,  199  Mass.  642,  85  N.  E.  848, 


L.  B.  A.  1915E,  264,  127  Am.  St  Rep.  513. 
In  the  exercise  of  this  power  certain  streets 
in  the  town  of  Eden  were  closed  to  the  use 
of  automobiles  by  chapter  420  of  the  Private 
and  Special  Laws  of  1903.  At  the  entrance 
to  these  streets,  under  the  provisions  of  the 
act,  signboards  were  to  be  erected  bearing 
these  words:  "No  automobiles  allowed  on 
this  road."  This  act  was  held  constitutional 
State  V.  Mayo,  106  Me.  62,  75  AU.  295,  26  L 
R.  A.  (N.  S.)  502,  20  Ann.  Cas.  612. 

In  1909  the  prohibition  was  extended  ter- 
ritorially to  all  the  ways  and  streets  in  the 
towns  of  Eden,  Mt  Desert,  Tremont,  and 
Southwest  Harbor  on  the  Island  of  Mt  Des- 
ert Private  and  Special  Laws  1909,  c.  133. 
This  act  was  also  held  constitutional.  State 
V.  Phillips,  107  Me.  249,  78  Atl.  283.  Suppose 
an  automobile  in  defiance  of  tliose  statutes 
had  been  operated  In  the  forbidden  district 
and  one  or  more  of  the  occupants  had  l>een 
injured  through  some  defect  in  the  highway. 
Could  it  with  reason  be  claimed  that  any 
liability  whatever  rested  upon  the  munici- 
pality within  which  the  accident  happened, 
or  that  it  made  any  difference  whether  the 
injured  party  was  the  owner  or  the  <diauf- 
feur  or  the  passenger,  and  whether  such 
passenger  knew  of  the  nonregistration  or 
not?  Certainly  not.  Those  towns  were  freed 
from  all  responsibility  when  the  prohibition 
was  placed  upon  this  kind  of  trataa 

Now  instead  of  prohibiting  all  automo- 
biles from  using  certain  streets  and  ways, 
the  Legislature  has  seen  fit  to  debar  all  un- 
registered automobiles  owned  by  resld«its 
from  using  any  of  the  streets  and  ways 
throughout  the  state.  Xlguratively  speak- 
ing, signs  are  erected  on  every  ttighway,  aft- 
er the  pattern  of  the  ISden  act,  bearing  the 
Inscription:  "No  unregistered  automobiles 
are  allowed  on  this  road."  Whenever  that 
sign  is  disregarded  the  occupants  travel  at 
their  peril. 

The  nonliability  to  passengers  as  well 
as  to  owner  has  been  settled  in  Massachu- 
setts. In  Feeley  r.  Melrose,  205  Mass.  329, 
91  N.  ]j}.  306,  27  U  R.  A.  (N.  S.)  U56,  137  Ana. 
St  Rep.  445,  three  suits  were  brougtit 
against  the  defendant  dty,  one  by  the  owner, 
and  two  by  female  passengers  in  an  unreg- 
istered car.    On  this  point  the  opinion  holds: 

"If  the  automobile  in  which  the  female  plain- 
tiffs were  riding  was  not  registered  according 
to  the  requirements  of  law,  it  was  unlawfully 
upon  the  way;  those  who  were  using  it  wer« 
not  travelers,  but  trespasseni;  and  it  would 
follow  that  they  could  not  maintain  this  action. 
*  *  *  Each  one  of  the  plaintiffs  must  fail  of 
recovery  in  that  event  It  would  not  help  the 
individual  plaintiffs  that  they  may  not  have 
known  that  the  automobile  was  not  duly  regis- 
tered; they  did  not  know  that  it  was,  and  it 
was  at  their  own  peril,  as  to  the  city  and  as  to 
third  persons,  that  they  undertook  to  nse  a 
vehicle  the  use  of  which  was  prohibited  by  law." 

To  the  same  effect  is  Dean  v.  Boston  Ele- 
vated Railway,  217  Mass.  495,  105  N.  E.  616. 
Our  conclusion  therefore  is  that  these  &c- 


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451 


Uons  cannot  be  maintained.    If  tbe  present 
statute  is  too  drastic  the  remedy  should  come 
by  leglslatlTe  amendment 
Judgment  for  defendants  In  each  case. 

MADIGAN,  J.  (dissenting).  That  those  in- 
nocent of  an  intentional  wrong  should  be 
held  trespassers  on  the  highways  established 
for  the  benefit  of  tbe  public  does  not  seem 
reasonable.  A  machine  may  t>e  operated  oou- 
trary  to  tbe  provisions  of  the  statute,  but  why 
uMist  all  passengers  therein  be  classed  as  out- 
laws? Few  violations  of  statutory  prohibi- 
tions entail  such  drastic  punishment.  A 
sleigh  without  l>eU8,  a  carriage  without 
lights,  a  wagon  with  narrow  tires;  If  for- 
bidden should  be  in  the  same  class ;  but  must 
we  hold  all  In  such  Tehlcleti  trespassers,  and 
tlierefore  without  protection  from  defective 
highways  or  the  negligence  of  other  travel- 
era?  If  certain  appliances  were  required  by 
law  on  trolley  cars,  would  we  hold  all  pas- 
sengers In  an  oftending  trolley  as  trespassers? 

Massachusetts,  which  Is  one  of  the  few 
states  holding  as  Maine  does,  applies  a  dif- 
ferent rule  to  the  unlicensed  chauffeur  than 
to  the  unregristered  car.  Can  we  say  a  ma- 
chine in  perfect  condition  unregistered,  but 
driven  by  a  licensed  driver,  is  more  danger- 
ous than  a  registered  car  driven  by  a  man 
whose  license  lias  been  revoked  for  reckless 
driving?  Under  the  rule  adopted  In  the  ma- 
jority opinion  at  our  peril  we  accept  a  ride 
with  a  friend,  or  enter  a  public  bu&  The  wo- 
men and  children  in  the  sight-seeing  cars  in 
the  dtles,  and  public  cars  running  from  town 
to  town,  may  be  without  remedy  in  case  of 
Injury.  License  plates  are  no  indication  of 
compliance  with  the  law.  They  frequently 
are  changed  from  car  to  car.  Only  by  making 
sure  that  the  maker's  number  agrees  with 
that  on  the  state  license  is  there  reasonable 
assurance  of  safety.  If  by  change  of  owner- 
ship the  license  has  lost  Its  efficacy  within  an 
hoar  the  car  and  Its  occupants  are  beyond  the 
pale  of  the  law.  The  cruelty  of  our  interpre- 
tation is  brouight  home  to  us  In  the  case  of 
these  Innocent  children.  If  the  accident  in- 
stead of  proving  fatal  had  rendered  them  crip- 
ples for  life,  they  would  have  been  without 
redress  for  the  criminal  negligence  of  some 
town  official.  We  say  the  law  says,  "Thou 
Shalt  not,"  and  therefore  travelers  are  tres- 
passers, though  the  failure  to  pay  a  state 
license  has  not  the  slightest  connection  with 
the  accident.  Is  It  a  necessary  sequence,  or 
is  it  thus  because  we  say  It  is?  Why  might 
not  the  penalty  here,  as  in  other  instances  of 
violation  of  law,  stop  with  One  or  imprison- 
ment? Condltionst  in  our  state  and  high- 
ways are  no  different  than  In  states  taking 
the  contrary  view  and,  as  it  seema  to  me, 
fairer  and  Juster  rule. 


COS  Ma.  sag) 
TUTTLB  V.  CUMBERLAND  COI'NTY  POW- 
ER &  LIGHT  CO. 

(Supreme  Judicial  Court  of  Maine.    July  21, 
1917.) 

Tbiat.  ®=>14&— Questions  for  JtrsT. 

Where  the  testimony  on  vital  questions  in- 
volved is  conflicting,  and  different  conclusions 
may  be  drawn  therefrom,  tbe  case  is  properly 
submitted  to  the  jury. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  SS  342,  848.] 

Exceptions  and  on  Motion  from  Supreme 
Judicial  Court,  Chimberland  County,  at  Law. 

Action  by  Mary  J.  Tuttle  against  the  Cum- 
berland County  Power  &  Light  Company.  On 
defendant's  exceptions  to  refusal  to  direct  a 
verdict  for  defendant  and  on  general  motion 
for  new  trial.  Bxceptiona  and  motion  over- 
ruled. 

Argued  before  CORNISH,  C.  J.,  and 
SPEAR,  KING,  ELANSON,  and  MADIGAN, 
JJ. 

Hinckley  &  Hinckley,  of  Portland,  for 
plaintiff.  Bradley  &  Llnnell,  of  Portland, 
and  William  Lyons,  of  Westbrook,  for  defend- 
ant 

PER  CURIAM.  This  Is  an  action  to  re- 
cover damages  for  personal  injuries  claimed 
to  Iiave  been  received  by  the  plaintiff  while 
she  was  a  passenger  on  ouei  of  the  defend- 
ant's electric  cars. 

At  the  conclusion  of  the  testimony  the  de- 
fendant's attorney  moved  the  court  to  direct 
a  verdict  for  the  defendant,  which  motion 
was  overruled.  The  Jury  returned  a  verdict 
for  the  plaintiff  for  $400.  The  case  is  be 
fore  the  court  on  the  defendant's  exception  to 
the  refusal  of  the  presiding  Justice  to  direct 
a  verdictj  for  the  defendant,  and  upon  gen- 
eral motion  for  a  new  trial. 

The  Issues  in  the  case  are  stated  in  the  blU 
of  exceptions  as  follows: 

"The  plaintiff  claimed  that  as  the  car  In 
wliicfa  she  was  riding  was  proceeding  along 
Ocean  street,  in  South  Portland,  and  slowing 
down  to  make  a  stop  on  Highland  avenue  which 
crosses  Ocean  street  diagonally,  where  she  in- 
tended to  alight  from  the  car,  and  that  at  a 
short  distance  before  said  car  reached  Higli- 
land  avenue,  she  arose  from  her  scat  and  pro- 
ceeded to  the  rear  platform  of  the  car,  and 
while  standing  on  the  step  or  the  rear  plat- 
form of  the  car,  and  at  a  point  on  said  Ocean 
street  near  said  Highland  avenue,  tbe  conduc- 
tor gave  the  motorman  the  signal  of  two  bells, 
and  that  the  car  moved  or  jumped  forward  rap- 
idly, and  threw  her  on  to  the  street  and  severely 
injured  her." 

"Tbe  defendant  daimed  that  as  the  car  was 
proceeding  along  Ocean  street  at  a  moderate 
rate  of  speed,  and  when  it  had  reached  a  point 
on  said  street  near  to  a  double  tenement  house, 
located  on  tho  easterly  side  of  said  street,  and 
about  120  feet  northerly  from  said  avenue,  the 
motorman  shut  off  tbe  power  in  obedience  to 
a  signal  that  the  conductor  gave  him  400  or 
500  feet  back  from  this  point,  to  stop  at  High- 
land avenue  at  a  whito  post,  so  called,  located 
at  the  comer  of  said  street  and  avenue,  and 


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€ba.t  *a  the  ear  was  slowed  down  to  a  speed  of 
4  or  5  miles  an  hour  the  plaintiff  arose  from 
her  seat,  proceeded  to  the  rear  platform,  and 
stepped  right  down  on  to  the  step,  and  then  on  to 
the  street,  at  a  point  at  least  85  feet  northerly 
and  before  said  white  post  and  Highland  avenue, 
the  stopping  place  of  said  car,  were  reached,  and 
that  when  sne  so  stepped  off  from  said  car, 
it  was  running  smoothly,  4  or  5  miles  an  hour, 
without  any  jerking  or  jumping,  or  any  un- 
usual motion  whatever,  and  that  no  signal  of 
two  bells  was  given  by  the  conductor  as  claim- 
ed by  the  plaintiff.  And  the  track  at  this 
place  was  very  nearly  level  and  in  good  condi- 
tion and  the  car  was  in  perfect  running  order." 

The  testimony  upon  the  vital  questions  in- 
volved was  conflicting  and  different  conclu- 
sions might  be  drawn  from  the  evidence  by 
different  minds.  The  case  was  therefore 
properly  submitted  to  the  Jury  for  their  find- 
ing upon  the  Issues  involved.  We  are  of 
opinion  that  the  testimony  warranted  the 
Jury  in  finding  that  the  plaintiff  was  in  the 
exercise  of  due  oare,  and  that  her  injury  was 
caused  by  the  negligence  of  the  defendant 
The  weight  of  tlie  evidence  sustains  the  claim 
of  the  plaintiff  that  the  signal  of  two  bells 
was  given  prematurely,  and  that  following 
the  same,  and  as  a  direct  result  thereof,  she 
was  thrown  from  the  car  and  injured.  The 
first  claim  is  abundantly  proved  by  the  plain- 
tiff's testimony,  the  latter  claim  that  she  was 
thrown  from  the  car,  is  corroborated  by 
witnesses  for  the  defendant  It  follows  that 
the  exceptions  and  motion  must  be  overruled. 

So  ordered. 


(US  Mew  28») 

McKININON  T.  BANGOR  RX.  &  ELBCTRIO 
CO. 

(Supreme  Judicial  Court  of  Maine.     July  21, 
1917.) 

1.  STBESF    RA.II.BOAD8    ^=»100(1)— iKJtTBT    TO 
PEDKSTHIAN— CONTBIBUTOBT    NEOUQENCX. 

Evidence  that  plaintiff,  ten  year  old  boy,  at- 
tempted to  cross  a  street  in  the  middle  of  the 
day  without  looking  for  approaching  trolley 
cars  or  noticing  ringing  of  the  gong,  and  ran 
into  fender  of  a  car,  establishes  his  contributory 
negligence  as  a  matter  of  law. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent  Dig.  {  217.] 

2.  Street  Railroads  «=»112(3) — ^Injury  to 
Passenger— Burden  of  Paoor. 

A  ten  year  old  plaintiff  injured  while  at- 
tempting to  pass  in  front  of  defendant's  street 
car  must  affirmatively  show  that  his  want  of 
due  care  did  not  contribute  to  the  injury. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
K«d8,  Cent  Dig.  {{  227,  228.] 

8.  Street  Rahaoadb  «=>114(1&)— Person  Ik- 
jubed— sufficibnot  of  b^videnox. 
Evidence  regarding  defendant  street  rail- 
way employes'  efforts  to  stop  a  car  by  reversing 
power,  sanding  tracks,  etc.,  on  down  grade, 
slippery  tracks  between  the  time  plaintiff  fell 
on  the  fender  until  collision  with  a  stationary 
car  held  not  to  sustain  a  verdict  for  plaintiff 
upon  the  last  dear  chance  doctrine. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent  Dig.  i  248.] 

Btxceptions  front  Supreme  Judicial  Court, 
Penobscot  County,  at  Law. 


Action  by  John  McKlnnon,  by  Us  next 
friend,  against  the  Bangor  Railway  &  Elec- 
tric Company.  Verdict  for  plaintiff,  and  de- 
fendant moves  for  a  new  trial,  and  excepts. 
Motion  sustained,  and  new  trial  granted. 

Argued  before  COUNTSH,  O.  J.,  and  HAL- 
EY, HANSON,  and  MADIGAN,  JJ. 

E.  P.  Murray,  of  Bangor,  and  W.  R.  Pat- 
tangall,  of  Augusta,  for  plaintiff.  Ryder  It 
Simpson,  of  Bangor,  for  defendant 

HALEY,  J.  An  action  on  the  case  to  re- 
cover damages  for  injuries  received  by  the 
plaintiff,  as  he  alleges,  by  reason  of  the  neg- 
ligent operation  of  the  defendant  street  rail- 
road. The  verdict  was  for  the  plaintiff,  and 
the  case  is  before  this  court  upon  motion  and 
exceptions. 

The  record  discloses  that  on  the  morning 
of  February  22,  1916,  at  about  half  past  10 
o'clock,  a  car  of  the  defendant  company,  call- 
ed an  Old  Town  car,  on  the  track  of  the  de- 
fendant at  Bangor,  came  up  Exchange  street 
and  down  State  street,  in  a  westerly  direc- 
tion, on  the  northerly  track,  towards  Ham- 
mond or  Main  street;  that  when  it  arrived 
at  a  point  near  what  Is  called  the  old  post 
office,  it)  had  a  tUgixt  collision  with  a  jigger 
that  had  failed  to  get  off  the  track,  although 
the  motorman  was  constantly  ringing  the 
gong.  The  car  stopped  and  a  crowd  com- 
menced to  gather,  while  the  motorman  and 
ccmductor  were  taking  the  names  of  tlie  wit- 
nesses who  saw  the  oolllsion,  at  which  time 
a  Highland  street  car  of  defendant  came  up 
Exchange  street  and  turned  the  corner  into 
State  street  about  180  feet  away.  The  mo- 
torman of  the  Highland  street  car  saw  the 
car  ahead  at  a  standstill  as  his  car  headed 
straight  down  State  street  and  aiq?lled  bis 
brakes.  State  street  from  Exchange  street 
where  the  car  stopped,  la  down  grade.  The 
day  was  warm  and  the  snow  was  melting  and 
running  down  along  the  car  rails  into  State 
street  Tlie  rails  were  slippery.  When  the 
brakes  were  applied  the  wheels  of  the  High- 
land street  car  ceased  turning,  but  the  wheels 
skidded  on  the  rail  by  reason  of  the  rail  be- 
ing what  the  raUroad  men  call  "greasy." 
The  car  was  about  81  feet  long  and  weighed 
11  tons.  The  motorman  next  reversed  his 
power,  but  the  car  wheels  got  no  grip  on  the 
rails  and  the  car  kept  on,  the  motorman  ring- 
ing Ills  gong  continuously.  Ttie  conductor 
came  forward  and  worked  the  lever  on  the 
sand  box  which  threw  sand  upon  one  rail 
of  the  track.  The  car  would  (diedt  up  a  little 
and  then  slide  ahead  again,  but  failed  to 
stop.  Hie  car  was  a  vestibule  car,  and  in 
the  vestibule  there  was  a  pail  oC  sand  witb  a 
small  shovel  in  It  When  the  Highland  street 
car  was  within  a  short  distance  of  the  sta- 
tionaiy  car,  the  plaintiff,  a  boy  about  ten 
years  old,  whose  attention  had  been  attracted 
by  the  car  colliding  with  the  jigger,  ran  from 
the  sidewalk  on  the  southeiiy  side  of  State 


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453 


street  diagonally  acroes  the  street,  and  with- 
out seeing  the  Highland  street  car  or  looking 
to  see  If  any  car  was  coming  be  ran  against 
the  left-hand  comer  of  the  Highland  street 
car  and  was  caught  up  by  the  projecting  car 
teiider  and  carried  on  until  the  Highland 
street  car  bumped  Into  the  stationary  car. 
The  motorman  of  the  Highland  street  car 
saw  the  boy  appear  at  the  corner  of  his  car 
and  saw  him  faU  out  of  sight,  whether  on  the 
fender,  the  ground,  or  under  the  car  the 
motorman  could  not  tell.  The  Highland 
street  car  was  then  moving  very  slowly,  prob- 
ably not  more  than  4  miles  an  hour,  and 
there  Is  some  testlmcmy  showing  it  was  not 
over  2  miles  an  hour.  The  motorman's  ef- 
forts to  stop  the  car  failed,  although  he  was 
Dslng  his  brake  and  reversing  the  power  con- 
stantly from  the  time  he  came  around  the 
comer  and  the  car  began  to  skid,  during 
which  time  the  conductor  was  working  the 
lever,  sanding  the  rail  that  the  wheels  might 
catdi  so  that  the  car  would  go  backwards. 
When  the  cars  came  together  the  impact  was 
not  hard  enough  to  break  the  glass  or  injure 
the  cars.  The  plaintiff  was  caught  between 
the  two  cars,  his  head  was  badly  cut,  his 
right  hand  and  forearm  crushed,  so  that  his 
arm  had  to  be  amputated  a  little  b^ow  the 
elbow.  Neither  the  conductor  of  the  High- 
land street  car  nor  the  conductor  or  motor- 
man  of  the  Old  Town  car  knew  of  the  boy's 
presence  until  after  he  was  hurt.  It  also 
appeared  that  the  defendant  had  a  sand  car 
whldi  was  used  to  sand  slippery  places  upon 
Its  tracks  upon  notice  of  their  existence,  but 
no  sand  had  been  put  upon  the  State  street 
tracks  by  the  sand  car  <m  the  momhig  in 
question. 

[1,2]  There  was  also  testimony  tending  to 
show  that  water  running  on  the  rails  would 
wash  the  sand  off,  especially  after  a  car 
had  passed  along  and  pulverized  the  sand  on 
the  rails,  and  that  the  condition  of  the  car 
rails  as  to  slipperyness  changed  in  a  few 
minutes,  being  dependent  upon  the  street 
traffic,  water,  moisture,  frost,  wind,  and  at- 
mosphere There  is  but  little  dispute  as  to 
the  facts;  the  principal  dispute  being  the 
distance  of  the  Highland  street  car  from  the 
<Hd  Town  car  when  the  plaintiff  fell  upon 
the  fender  of  the  Highland  street  car.  The 
undisputed  facts  that  the  plaintiff.  In  the 
middle  of  the  day,  stepped  from  the  side- 
walk and  attempted  to  cross  a  public  street 
upon  which  the  trolley  cars  were  running  In 
plain  ^gbt,  and  without  looking  where  the 
cars  were  coming  fronj,  or  the  rate  of  speed 
at  which  they  were  traveling,  or  without 
looking  for  the  car  that  was  coming  down 
the  street,  or  without  paying  any  attention  to 
the  ringing  of  the  gong  which  was  being  rung 
all  the  time,  heedlessly  ran  against  the  fen- 
der of  the  car  and  was  thrown  on  the  meshes 
of  the  car  fender,  shows  beyond  question  that 
the  plaintiff  was  not  In  the  exercise  of  due 
care,  that  his  want  of  due  care  was  negli- 
gence that  contributed  to  the  injuries  that  he 


received,  and  as  the  plaintiff  was  bound  to 
show  not  only  the  defendant's  negligence,  but 
affirmatively  that  no  want  of  due  care  on 
his  part  contributed  to  bis  injury  (Cktiomb 
V.  Street  Railway,  100  Me.  418,  61  Atl.  898; 
Mullen  V.  Railway,  164  Mass.  452,  41  N.  E. 
664),  his  contributory  negligence  and  want 
of  due  care  is  a  bar  to  this  action,  imless,  as 
the  plaintiff  cont^ids,  that  rule  does  not  ap- 
ply to  this  case. 

[3]  The  plaintiff  claims  that,  admitted  he 
was  negligent  in  mnnlug  on  to  the  car  so 
that  he  fell  upon  the  fender,  yet  the  defend- 
ant Is  liable  because  its  servants  might,  after 
the  motorman  saw  the  plaintiff  on  the  fen- 
der, or  by  the  exercise  of  reasonable  care 
might  have  seen  him,  have  stopped  the  car 
and  thereby  have  avoided  the  collision. 

In  actions  of  this  kind  It  is  true  that  every 
negligent  act  upon  the  part  of  the  plaintiff 
will  not  necessarily  bar  him  from  the  re- 
covery of  damages.  The  rule  has  been  stat- 
ed many  times,  "that  he  who  last  has  an  ap- 
portunlty  of  avoiding  the  accident,  notwith- 
standing the  negligence  of  the  other,  Is  solely 
responsible." 

"If  due  care  on  the  part  of  eltb^  at  the 
time  at  the  injury  would  prevent  it,  the  ante- 
cedent negligence  of  one  or  both  parties  is 
immaterial,  except  as  it  may  be  as  one  of  the 
circumstances  by  which  the  requisite  measure 
of  care  is  to  be  determined.  In  such  a  case 
the  law  deals  with  their  behavior  in  the  sit- 
uation in  which  it  finds  them  at  the  time  the 
mischief  is  done,  regardless  of  their  prior 
conduct."  Iron  &  Steel  Co.  v.  Worcester  & 
Nashua  Railroad  Co.,  62  N.  H.  162.  Not- 
withstanding the  negligence  of  the  plaintiff 
in  falling  upon  the  fender  of  the  defendant's 
car,  the  plaintiff  was  powerless  to  help  him- 
self;  from  that  time  a  new  relation  existed 
between  the  parties,  and  it  was  the  duty  of 
the  defendant,  If  its  servants  having  charge 
of  the  car  knew  of  his  position,  or  by  the 
exercise  of  due  care  would  have  known  the 
dangerous  position  the  plaintiff  was  In,  to  use 
the  same  degree  of  care  which  a  reasonable, 
careful,  and  prudent  man  ought  to  use  under 
the  same  drcnmstances,  and  If,  with  the  ex- 
ercise of  reasonable  care,  they  could  have 
prevented  the  Injury,  it  was  their  duty  to 
do  so,  and  failure  on  their  part  to  so  act 
would  be  negligence  which  would  entitle  the 
plaintiff  to  recover.  Weitzman  v.  Nassau 
Electric  B.  Co.,  33  App.  Dlv.  585,  53  N.  T. 
Supp.  906.  In  other  words,  when  a  plaintiff, 
by  his  negligence  has  placed  himself  in  a 
dangerous  position,  the  defendant,  advised 
of  his  situation,  is  not  for  that  reason  legally 
justified  In  falling  to  use  reasonable  care  to 
avoid  Injuring  him.  McKeon  v.  Railroad  Co., 
20  App.  Dlv.  601,  47  N.  T.  Supp.  374.  Where 
the  negligent  acts  of  the  parties  are  distinct 
and  independent  of  each  other,  the  act  of 
the  plaintiff  preceding  that  of  the  defend- 
ant. It  is  considered  that  the  plaintifTs  con- 
duct does  not  contribute  to  produce  the  in- 
jury, if,  notwithstanding  bis  negligence,  the 


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iDJory  oould  have  been  avoided  by  the  use  of 
ordinary  care  at  tbe  time  by  the  defendant. 
Atwood  V.  Hallway  Company,  91  Me.  399,  40 
AU.  67 ;  Ward,  Adm'r  v.  Maine  Central  Rail- 
road Co.,  96  Me.  136,  51  Atl.  947;  Butler 
V.  Railway,  09  Me.  149,  58  Atl.  775,  105  Am. 
St  Rep.  267;  Moran  v.  Smith,  114  Me.  55, 
95  Atl.  272.  But  that  doctrine  does  not  apply 
to  the  facts  of  this  case,  as  they  fail  to  show 
negligence  on  the  part  of  the  defendant  In- 
dependent of  and  subsequent  to  the  plalntlfTs 
negligence.  At  ,the  time  the  plaintiff  fell 
upon  the  fender  ihe  motorman  and  conductor 
were  using  all  means  at  their  command  to 
stop  the  car.  Its  speed  had  been  reduced  to 
between  2  and  4  miles  an  hour,  and  with  the 
efforts  they  were  making,  but  for  the  slippery 
or  greasy  condition  of  the  raUs  caused  by  the 
melting  snow  and  slime  which  ran  off  from 
the  street  onto  the  tracks,  they  would  have 
been  able  to  stop  the  car  almost  instantly. 
The  condition  of  the  rails  was  caused  by  the 
action  of  Nature  but  a  few  minutes  before 
the  accident,  and  was  remedied  by  the  action 
of  Nature  as  the  running  water  shortly 
washed  the  rails  clean.  The  plaintiff  claims 
that  the  rails  should  hare  been  sanded,  but 
the  evidence  shows  that  the  sand  would  have 
washed  away  Immediately.  The  conductor 
did  not  see  the  plaintiff  or  know  of  his  posi- 
tion upon  the  fender  until  after  the  accident. 
The  motorman  testifies  positively  that  he  did 
not;  that  he  was  trying  to  stop  the  car  by 
putting  on  the  power  and  reversing  that  he 
might  make  the  wheels  catch  upon  the  rails 
and  stop  the  car  from  skidding;  he  saw  the 
boy  fall  close  to  the  car — ^he  could  not  tell 
where — and  from  that  time  to  the  time  the 
car  ran  into  the  Old  Town  car  both  the  con- 
ductor and  motorman  were  doing  their  ut- 
most to  stop  the  car  with  proper  appllanccK 
furnished  for  that  purpose.  TOere  is  no 
evidence  of  any  negligence  on  the  part  of  the 
defendant  independent  of  and  subsequent  to 
the  plalntlfTs  negligence  that  caused  the 
plaintiff's  injuries. 

The  case  of  Weltzman  v.  Nassau  Electric 
Co.,  33  App.  Div.  686,  66  N.  X.  Supp.  905, 
cited  by  the  plaintiff,  differs  from  this  case 
In  that  the  plaintiff  in  that  case  offered  to 
prove  that  the  car,  upon  the  fender  of  which 
the  plaintiff's  Intestate  fell,  could  have  been 
stopped  within  20  feet  from  where  the  motor- 
man  first  saw  the  child  approaching  danger- 
ously near  the  track.  The  court  refused  to 
admit  the  testimony,  and  therefore  a  new 
trial  was  granted. 

In  this  case  there  is  no  evidence  that  the 
motorninn  saw  the  child  until  it  feU  upon 
the  fender,  and  the  evidence  shows  clearly 
and  conclusively  that  the  efforts  of  both 
the  conductor  and  motorman  could  not  stop 
the  car  before  the  collision. 

In  Green  v.  Metropolitan  St  Ry.  Co.,  65 
App.  Div.  54.  72  N.  Y.  Supp.  524,  the  plaintiff 
fell  upon  the  fender  of  the  car,  and  the  car , 


traveled  a  distance  estimated  at  nearly  100 
feet  before  It  stopped,  and  the  plaintiff  was 
Jolted  off  from  the  fender  and  run  over,  and 
the  testimony  proved  that  tlie  car  oould  have 
been  stopped  within  20  or  25  feet  It  was 
held  that  the  defendant  was  UaUe^  but  in 
that  case  there  was  no  effort  made  to  stop 
the  car  within  the  distance  within  which  It 
could  have  been  stopped.  In  this  case  the 
servants  of  the  defendant  made  proper  effort 
to  stop  the  car. 

As  the  evidence  clearly  shows  that  the 
plaintiff  was  guilty  of  negligence  In  falling 
upon  the  fender  of  the  defendants'  car,  and 
that  his  negligence  contributed  to  the  in- 
juries he  received,  and  as  the  defendant  was 
guilty  of  no  independent  subsequent  negli- 
gence after  the  platntiffs  negligence,  bat  that 
Its  servants  did  all  that  an  ordinary  pru- 
dent person  would  or  could  have  done  under 
the  circumstances  to  stop  the  car,  which  was 
a  suitable  car  for  the  business  for  which  it 
was  being  used,  it  follows  that  the  motion 
must  be  sustained.  It  Is  tinnecessary  to 
consider  the  exceptions  In  detail,  as  they  aro 
ail  practically  covered  by  the  statements  of 
the  law  as  applied  to  the  motion  for  a  new 
trial. 

Motion  sustained. 

New  trial  granted. 


(267  Pa.  221) 

JOOS  V.  COMMOiNWEALTH. 

(Supreme  Court  of  Pennsylvania.     March   19, 
1917.) 

1.  JtrnoMiHT    «=>714(2)— Rbs    AitfUDicArA— 
LiABiLrrY  roB  Advebtisino. 

A  judgment  of  the  Supreme  Court  that  un- 
der the  statutes  relator  could  not  recover  for 
publishing  the  mercantile  list  of  dealers  within 
the  cities  of  Pittsburgh  and  Allegheny  wag  res 
adjudicata,  and  could  not  be  litigated  again  in 
another  proceeding  by  the  same  relator  involv- 
ing the  same  cause  of  action. 

[Ed.   Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  |  1243.] 

2.  Taxation  «=»319(1)— Pubi-ication  of  Ap- 
pbai8embnt6— authobity — statute. 

Under  Act  April  22,  1846  (P.  U  486)  {  12, 
requiring  notices  of  mercantile  appraisements 
in  the  county  of  Allegheny,  except  in  the  cities 
of  Pittsburgh  and  Allegheny,  to  be  advertised 
in  at  least  two  newspapers,  the  authority  of 
the  mercantile  appraisers  to  order  such  publica- 
tion would  be  implied,  and  such  authority  was 
not  taken  away  by  Act  April  11,  1862  (P.  U 
492),  relating  to  the  assessment  and  coUectioa 
of  mercantile  taxes,  which  is  to  be  construed 
with  other  acts  relating  to  the  same  subject. 

[Ed.    Note.— For   other    cases,    see   Taxation, 
Cent  Dig.  Sf  614,  527-629,  532-1534.] 

3.  Newspapers  iS=95(2)— Pubucation  or  Ap- 
praisements—Extent  OP  Recovert  —  En- 

ABLIXIG    STATDTR. 

Where  the  mercantile  appraisers  for  the 
county  of  Allegheny  ordered  the  publication  of 
the  mercantile  appraisement  list  in  a  news- 
paper and  it  was  held  by  the  Supreme  Court 
that  the  publisher  could  not  recover  for  piiblish- 
ing  the  list  within  the  cities  of  Pittsburgh  and 
Allegheny,  and  Act  May  3,  1915  (P.  L.  241). 
authorized  the  publisher's  action  for  whatever 


4fsaVoT  other  oaaM  ue  «am*  topic  and  KGT-NXJMBKR  In  all  Key-Numbered  Olseati  and  laden* 


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JOOS  V.  COMMOlSrWEALTH 


455 


wu  due  him,  a  judgment  tor  adverdaing  the 
list  of  dealers  in  the  cotmty  outside  of  those 
cities,  and  refusing  a  recovery  for  advertising 
within  those  cities,  was  proper. 

[Ed.  Note. — For  other  cases,  see  Newspapers, 
Ctent.  IMg.  S$  23,  24.] 

Appeal  from  Conrt  of  Common  Pleas, 
Dauphin  County. 

Assumpsit  for  ajdvertislng  by  John  B.  Joos, 
a  resident  of  the  city  of  Pittsburgh,  against 
the  Commonwealth.  Verdict  for  plaintifF  for 
$2,524,  with  Interest  from  May  9,  1885,  and 
Judgment  thereon,  and  both  parties  appeal. 
Affirmed. 

See,  also,  129  Pa.  492,  8  Atl.  159. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKEB,  FRAZER,  and  WAIi- 
LING,  JJ. 

E.  K.  Trent  and  J.  R  B.  Cunningham,  both 
of  Pittsburgh,  for  plalntifT.  Horace  W. 
Davis,  Deputy  Atty.  Gen.,  and  Francis  Shunk 
Brown,  Atty.  Qea.,  for  the  Commonwealth. 

BROWN,  C.  J.  [1]  By  an  act  of  assembly 
approved  May  3, 1915  (P.  L.  241),  the  plaintiff 
was  authorized  to  bring  this  action  against 
the  commonwealth  to  recover  whatever  might 
be  legally  due  him  as  owner  and  publisher 
of  a  German  newspaper  in  which  there  was 
published,  by  direction  of  the  mercantile  ap- 
praiser, the  mercantile  list  of  the  county  of 
Allegheny  for  the  year  1885.  Louis  T.  Brown 
was  the  county's  appraiser  for  that  year,  and 
on  May  9,  1885,  approved  plaintiff's  bill  for 
$4,152.  After  Its  ai^roval  he  presented  it 
to  the  auditor  general,  who  declined  to  pay 
It,  and  be  thereupon  Instituted  a  proceeding 
In  the  court  of  common  pleas  of  Allegheny 
county  to  compel  A.  E.  McCandless,  county 
treasurer,  to  pay  him.  A  full  report  of  that 
proceeding  Is  found  in  Commonwealth  t.  Mc- 
Candless, 129  Pa.  492,  8  Atl.  159,  and,  for 
the  purpose  of  an  Intelligent  understanding  of 
the  case  now  before  us,  we  extract  the  follow- 
ing facts  from  It:  To  the  alternative  man- 
damus the  county  treasurer  filed  an  answer. 
In  which  he  averred  that  the  paper  owned 
and  published  by  the  plaintiff  was  a  Sunday 
newspaper,  and  the  publication  of  the  mer- 
cantile appraiser's  list  therein  was  not  there- 
fore legal.  An  issue  was  directed  to  deter- 
mine whether  the  paper  was  or  was  not  a 
Sunday  publication.  The  verdict  of  the  Jury 
was  that  It  was  a  Saturday  nevrspaper.  The 
court  then  considered  the  various  acts  of  as- 
sembly relating  to  the  publication  of  mercan- 
tile appraisers'  lists,  and  in  an  elaborate 
opinion  by  the  late  learned  Judge  Ewing, 
It  was  held  that,  under  the  statutes,  the 
mercantile  appraiser  had  no  power  to  au- 
thorize the  publication  of  the  mercantile  list 
of  dealers  within  the  dtles  of  Pittsburgh 
and  Allegheny,  and  for  this,  if  for  no  other 
reason,  the  commonwealth  was  not  bound  to 
pay  the  claim  of  the  relator  as  presented,  for 
there  were  no  means  of  ascertaining  the 
proportion  that  would  be  chargeable  for  the 
list  of  dealers  outside  9t  tb«  said  dtles. 


[2]  It  Is  first  to  be  observed  that  the  qnea- 
tion  of  the  right  of  the  plaintiff  to  recover 
for  the  publication  of  the  list  of  deaters  with- 
in the  cities  of  Pittsburgh  and  Allegheny  must 
be  regarded  as  res  adjudicata,  for  It  was 
distinctly  passed  upon  by  the  court  below 
adversely  to  him,  and  its  action  was  affirmed 
by  this  court.  The  right  given  by  the  net  of 
1915  to  bring  this  suit  merely  permits  it  to  be 
brought  with  the  right  of  the  commonwealth 
to  have  Its  liability  determined  by  settled 
rules  of  law  applicable  to  all  litigation.  The 
plaintiff's  claim  of  $4,152  Is  made  up  in  this 
action  of  two  Items:  (a)  $1,828,  for  advertis- 
ing the  names  of  dealers  within  the  cities  of 
Pittsburgh,  and  Allegheny;  (b)  ^,624,  for 
advertising  the  names  of  dealers  In  Allegheny 
county  outside  of  said  dtles;  and  the  only 
Question  Is  whether  he  can  recover  for  the 
second  item.  Whether  he  can  do  so  depends 
upon  statutory  provisions.  The  act  of  April 
16,  1846  (P.  I*.  632),  authorized  the  courts  of 
common  ideas  of  Allegheny  and  Philadelphia 
counties  to  appoint  an  "appraiser  of  mer- 
cantile taxes"  to  ascertain  and  assess  all 
dealers  In  accordance  with  the  various  acts 
of  assembly  then  In  force  relating  to  tax  up- 
on vendors  of  merchandise.  By  the  slxtli 
section  of  the  act  the  appraiser  was  directed 
to  furnish  each  person  and  firm  so  assessed 
a  written  or  printed  notice  of  his  classifica- 
tions, giving  at  the  same  time  to  each  dealer 
notice  of  the  place  and  time  at  which  ap- 
peals might  be  heard  from  his  classifications. 
No  authority  is  given  In  this  act  to  the  ap- 
praiser to  make  any  publication  in  the  news- 
papers. By  section  12  of  the  act  of  April 
22,  1846  (P.  U  486),  the  fifth,  sixth,  seventh, 
and  eighth  sections  of  the  act  of  1845  were 
extended  to  all  the  counties  of  the  common- 
wealth, with  the  provisos  that  the  appraiser 
for  each  county  should  be  appointed  by  Its 
commissioners,  and  that  the  written  or  print- 
ed notice  required  by  the  sixth  section  of  the 
act  of  1845,  to  be  furnished  by  the  appraisers 
to  the  persons  or  firms  assessed,  should  ex- 
tend only  to  the  cities  of  Pittsburgh  and  Al- 
legheny, In  the  county  of  Allegheny.  The 
notices  of  assessments  made  by  the  appraiser 
within  other  portions  of  the  county  are  re- 
quired by  the  act  of  1846  to  be  given  by  at 
least  four  advertisements  In  at  least  two 
newspapers.  If  there  be  so  many  published  In 
the  county.  WbUe  the  act  Is  silent  as  to  who 
Is  to  <H^r  the  publication,  the  fair  Implica- 
tion is  that  it  was  Intended  to  vest  the  author- 
ity to  do  so  in  the  appraiser,  and  this  author- 
ity was  exerdsed  by  the  appraiser  In  the 
present  case.  In  pursuance  of  which  the 
publications  were  duly  made  by  the  plain- 
tiff, and  his  bill  therefor  is  at  an  admittedly 
correct  rate.  While  the  court  below,  In  Com- 
monwealth V.  McCandless,  was  In  doubt  as  to 
whether  this  authority  remained  in  the  ap- 
praiser. In  view  of  the  act  of  April  11,  1802 
(P.  I/.  492),  we  are  of  oi^nlon  that,  as  all 
acts  relating  to  the  assessment  and  collec- 
tion of  mercantile  taxes  must  be  construed 


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101  ATIANTIO  REPORTER 


(Pa. 


together,  the  authority  of  the  mercantile  ap- 
praiser to  OPder  the  publlcatloa,  found  In  the 
act  of  1846,  was  not  taken  away  by  the  act  of 
1862.  The  act  of  May  6,  1874  (P.  L.  124)  re- 
lates  only  to  advertisements  published  by  an 
officer  or  officers  of  the  commonwealth  au- 
thorized by  law  to  publish  the  same,  and  Is 
not  to  be  regarded  as  having  any  applica- 
tion to  the  present  case. 

[3]  The  foregoing  views  were  correctly  held 
by  the  court  below.  From  Its  Judgment  sus- 
taining the  secoai  Item  of  plaintiff's  claim 
he  and  the  commonwealth  have  both  appeal- 
ed. The  Judgment  gives  him  all  he  Is  en- 
titled to  under  the  law,  and  does  not  require 
the  commonwealth  to  pay  what  it  does  not 
0W&    It  is  therefore  affirmed. 


(»7  Pa.  134)  

RICHARDS  et  al.  V.  SHIPLEY. 

(Supreme  Ckturt  of  Pennsylvania.     March  12, 
1917.) 

iNJTJWCnoN    €s»61(2)  —  CoNxaAOT    in    Rk- 

STEAiNT  or  Tradk— Breach. 
Where  the  owner  of  a  coal  businesa  sold  it, 
including  his  fixtures,  trade-name,  etc.,  and 
agreed  not  to  engage  in  that  business  in  the  city 
in  which  he  bad  conducted  his  business  for  two 
years,  or  within  a  radius  of  two  miles  from  his 
former  place  of  business  for  five  years,  and 
three  years  thereafter  established  a  coal  busi- 
nesa inside  the  city  limits,  but  outside  the  two- 
mile  radius,  and  solicited  orders  witiiin  such 
radius,  he  would  be  enjoined  from  soliciting  or 
transacting  such  business  within  a  radius  of 
two  miles  from  his  former  place  of  business 
within  five  years  from  the  date  of  the  agree- 
ment. 

[Ed.  Note. — For  other  cases,  see  Injunction, 
Cent  Dig.  §§  121-123.] 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County, 

Bill  in  equity  for  an  Injunction  by  J.  Er- 
nest Rlcliards  and  others  against  Walter  CL 
Shipley.  I^-ellminary  injunction  continued, 
and  defendant  appeals.    Affirmed. 

Davis,  J.,  filed  the  following  findings  of 
fact  and  conclusions  of  law  in  the  court  of 
common  pleas: 

Findings  of  Fact 

Upon  the  bill,  answer  and  proofs  the  follow- 
ing facts  are  found: 

(1)  The  plaintiff  George  B.  Newton  OmlI  C<Hn- 
pnny  is  a  Pennsylvania  corporation  chartered 
September  4,  1912,  under  the  name  of  "Heg 
Coal  Company,"  its  corporate  name  being  short- 
ly thereafter  changed  to  George  B.  Newton  Coal 
Company.  It  is,  and  has  been  since  November, 
1912,  engaged  in  the  retail  coal  business  in  the 
city  of  Philadelphia. 

(2)  The  plaintiffs  J.  Ernest  Richards,  Howard 
F.  Ilansell,  Jr.,  and  F.  Wilson  Priehett  are  cit- 
izens of  Pennsylvania  and  residents  of  Philadel- 
phia. They  were  the  promoters  of  the  George 
B.  Newton  Coal  Company,  which  they  organized 
in  the  year  1912  for  the  purpose  of  purchasing 
and  consolidating  a  number  of  retail  coal  busi- 
nesses in  the  city  of  Philadelphia,  Pursuant  to 
said  plan,  said  coal  company  did,  in  the  fall  of 
1912,  purchase  and  acquire  the  plants,  proper- 
ties, assets,  trade-names,  and  good  will  of  a 
number  of  retail  coal  businesses  theretofore  con- 


ducted in  said  city,  among  others  being  the  coal 
business  conducted  by  the  defendant,  Walter  0. 
Shipley. 

(3)  The  defendant  Walter  C.  Shipley,  is  a  cit- 
izen of  Pennsylvania  residing  in  the  city  of  Phil- 
adelphia. Prior  to  November,  1912,  he  had  been 
engaged  for  many  years  in  the  retail  coal  busi- 
ness in  said  city,  his  principal  office  and  place 
of  business  being  at  tne  comer  of  Price  street 
and  Main  street,  in  Germantown,  Philadelphia. 
He  did  a  large  retail  coal  business  in  German- 
town  and  owned  a  valuable  business  and  good 
will,  his  business  being  conducted  under  the 
name  of  "Walter  C.  Shipley." 

(4)  On  November  22,  1912,  the  defendant 
Walter  C.  Shipley,  executed  a  bill  of  sale,  a 
copy  of  which  is  attached  to  the  bilL  On  the 
same  day  the  plaintiffs  F.  Wilson  Priehett, 
Howard  F.  Hansell,  Jr.,  and  J.  Ernest  Richards 
executed  a  bill  of  sale,  a  copy  of  which  is  at- 
tached to  the  bill  of  complaint.  On  the  same 
day  the  defendant  Walter  C.  Shipley,  and  the 
plaintifiCs  J.  Ernest  Richards,  Howard  F.  Han- 
sell, Jr.,  and  F.  Wilson  Priehett  entered  into 
the  trade  agreement,  a  copy  of  which  is  attach- 
ed to  the  biU  of  complaint  which  agreement  was 
on  said  date  assigned  by  said  Richards,  Hanscll, 
and  Priehett  to  the  (ieorge  B.  Newton  Coal 
Company  by  an  assignment  a  copy  of  which  is 
attached  to  the  bill  of  complaint.  On  the  same 
date  the  George  B.  Newton  Coal  Ompany  and 
the  defendant,  Walter  C.  Shipley,  entered  into 
the  employment  contract  a  copy  of  which  is  at- 
tached to  the  defendant's  answer. 

(5)  Upon  the  execution  of  the  bills  of  sale,  as- 
signments, and  agreements  enumerated  in  the 
foregoing  finding  No.  4,  and  upon  the  consumma- 
tion of  the  transfers  contemplated  by  said  docu- 
ments, the  plaintiff  George  B.  Newton  (3oal 
C!oropany  took  over,  and  has  from  that  time 
continuously  to  the  present  conductedjthe  busi- 
ness thus  acquired  t>y  it  from  said  Walter  C. 
ShipW. 

(6)  Pursuant  to  his  said  contract  of  employ- 
ment with  the  George  B.  Newton  Coal  Company, 
the  defendant,  Walter  O.  Shipley,  entered  the 
employ  of  that  company  on  November  22,  1912, 
and  continued  in  its  employ  until  the  latter  part 
of  the  month  of  December,  1915.  During  most 
of  said  period  he  was  in  charge  of  and  manager 
of  that  branch  or  department  of  the  George  B. 
Newton  Coal  (I^mpany's  business  which  had 
formerly  constituted  the  business  of  said  Ship- 
ley. 

(7)  The  agreement  dated  November  22,  1912, 
between  the  defendant,  Walter  C.  Shipley,  and 
the  plaintiffs  J.  Ernest  Richards,  Howard  F. 
Hansell,  Jr.,  and  F.  Wilson  Priehett,  and  their 
assigns  (hereinabove  referred  to  in  finding  No. 
4).  provided,  inter  alia,  as  follows: 

Whereas,  Walter  O.  Shipley,  by  agreement 
bearing  even  date  herewith,  has  granted,  bat^ 
gained,  and  sold  unto  J.  Ernest  Richards,  How- 
ard F.  Hansell,  Jr.,  and  F.  Wilson  Priehett  all 
of  his  business,  trade-name,  trade-mark,  gooil 
will,  machinery,  fixtures,  furniture,  etc.,  of  his 
coal  business,  with  the  exception  of  cash,  ac- 
counts, and  bills  receivable,  accounts  and  bills 
payable,  materials,  supplies,  and  stock  on  band 
as  set  forth  in  the  said  bill  of  sale; 

"And  whereas,  in  consideration  of  the  pur- 
chase of  his  business  by  the  said  J.  Ernest  Itich- 
ards,  Howard  F.  Hansell,  Jr.,  and  F.  Wilson 
Priehett,  it  is  deemed  to  be  to  the  mutual  inter- 
est of  the  parties  hereto  that  the  said  Walter 
C.  Shipley  shall  refrain  from  ecntinuing  in  the 
coal  business  in  the  city  of  Philadelphia  for  a 
period  of  two  years  and  within  a  radius  of  two 
miles  from  Main  and  Price  streets,  German- 
town,  for  a  period  of  five  years,  and  that  he 
should  indemnify  the  said  J.  Ernest  Richards, 
Howard  P.  Hansell,  Jr.,  and  F.  Wilson  Priehett. 
and  their  assigns,  from  any  loss  on  account  of 
any  claims  made  against  the  said  Walter  C. 


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BIOHARDS  T.  SHIPI;ET 


467 


Shipley,  fat  ccmnectioii  with  hia  business  or  by 
reason  of  any  aocounts  and  bills  payable  now 
outstanding: 

"Therefore,  it  is  mutually  aneed  by  and  be- 
tween the  parties  hereto  as  follows: 

"(1)  Walter  C.  Shipley  agrees  that  he  will 
not.  for  a  period  of  two  years  from  date  here- 
of, within  the  city  of  Philadelphia,  and  for  a 
period  of  five  years  from  the  date  hereof  within 
the  radius  of  two  miles  from  Main  and  Price 
streets,  Oermantown,  be  or  become  directly  or 
indirectly  engaged  in  or  connected  with  any 
retail  coal  business  or  undertaking  similar  to 
that  heretofore  conducted  by  him  under  the 
name  of  Walter  C.  Shipley,  either  individually 
or  as  a  member  of  any  firm  or  partnership,  or 
as  an  officer,  director,  manager,  stockholder, 
or  employ^,  or  in  any  other  capacity,  other 
than  in  any  ono  of  said  capacities  in  the  George 
B.  Newton  Coal  Company  or  its  subsidiary 
companies.     •     •     • 

"This  agreement  is  made  with  the  understand- 
ing: •  •  *  II.  It  shall  not  be  so  construed 
as  to  prevent  "Shipley  becoming  the  owner  of 
any  real  estate,  whether  the  same  is  used  in 
the  coal  business  or  otherwise. 

"This  agreement  and  the  warranties  and  cove- 
nants shall  extend  to,  inure  to  the  benefit  of, 
and  be  binding  upon  the  parties  hereto,  their 
executors,  administrators,  and  assigns." 

(8)  In  the  month  of  January,  1915,  the  de- 
fendant, Shipley,  rented  a  tract  of  land  at 
Chestnut  Hill  and  situated  about  2  miles  and 
50O  feet  from  the  corner  of  Main  and  Price 
streets,  Germantown,  and  in  the  summer  of  1915 
he  began  to  equip  and  fix  the  same  as  a  coal- 
yard.  Immediately  npon  leaving  the  employ 
of  the  Newton  Coal  Company  in  December, 
1915,  said  Shipley  proceeded  to  transact  a  re- 
tail coal  business  at  said  yard  under  the  name 
of  St.  Martins  Coal  Company,  and  is  still  en- 
gaged in  said  business  under  said  name.  Im- 
mediately upon  entering  upon  said  business  he 
began  upon  an  extensive  scale  to  advertise  his 
business,  by  means  of  circulars  and  otherwise, 
in  various  places,  and  among  others  throughout 
that  portion  of  Germantown  which  lies  within 
two  miles  of  the  comer  of  Main  and  Price 
streets.  He  actively  solicited  orders  of  coal 
within  said  district  in  various  ways,  and  among 
others  by  circulars  signed  "St.  Martins  Coal 
Company,  by  Walter  G.  Shipley,"  and  sold  and 
delivered  coal  in  said  district. 

(9)  When  the  defendant  Shipley  negotiated 
the  lease  of  his  present  yard  at  Chestnut  Hill, 
it  was  his  belief  that  said  yard  should  be  rent- 
ed by  the  plaintiff  Newton  Coal  Company.  He 
was  urging  upon  the  Newton  Coal  Company  the 
advantages  that  would  accrue  to  it  from  rent- 
ing such  yard,  and  acted  in  the  premises  on 
behalf  of  the  Newton  Coal  Company.  It  was 
not  until  the  fall  of  1915  that  the  proposal  that 
the  Newton  Coal  Company  a^onld  take  over 
•aid  yard  was  abandoned. 

(10)  At  no  time  did  the  defendant,  Shipley, 
inform  any  of  the  officers  or  directors  of  the 
Newton  Coal  Company  that  he  intended,  upon 
entering  upon  the  retail  coal  business  at  his 
present  yard,  to  solicit  orders  within  the  dis- 
trict I^ng  within  two  miles  of  Main  and  Price 
streets,  Germantown,  or  engage  directly  or  in- 
directly in  the  retail  coal  business  in  said  dis- 
trict prior  to  November  22,  1917,  the  time  limit 
fixed  in  said  agreement  of  November  22,  1912. 
At  no  time  did  the  Geor^  B.  Newton  Coal  Com- 
pany or  any  of  its  officers,  directors,  or  com- 
mittees authorise,  agree,  or  consent  that  said 
Shipley  should  disregard  in  any  way  the  trade 
restrictions  contained  in  his  said  agreement. 

Conclusions  of  Law. 
(1)   The  agreement  of  November  22,  1912,  be- 
tween Walter  C.  Shipley  and  J.  Kmest  Kidi. 
ards,    Howard  F.  Hansen,  Jr.,  and  F.  Wilson 
Pricliett,  and  which  waa  subsequently  assigned 


to  the  George  B.  Newton  Coal  Company,  where- 
by said  Shipley  agreed  to  refrain  for  a  period 
of  five  years  from  November  22,  1912,  within 
the  radius  of  two  miles  from  Main  and  Price 
streets,  Germantown,  from  engaging  or  becom- 
ing interested,  directly  or  indirectly,  in  the 
retail  coal  business  or  any  undertaking  similar 
to  that  conducted  by  him  under  the  name  of 
Walter  C.  Shipley  prior  to  November  22,  1917, 
is  a  legal,  valid,  and  enforceable  agreement. 

(2)  Under  his  said  trade  agreement  with  the 
George  B.  Newton  Coal  Company  said  Walter 
C.  Shipley  has  no  right  either  under  his  own 
name  or  the  name  of  St.  Martins  Coal  Company, 
or  any  other  name,  to  solicit  orders  for  retail 
coal  from  or  receive  orders  for  retail  coal  from, 
or  make  deliveries  of  retail  coal  to,  any  persons, 
firms,  or  corporations  within  two  miles  of  Main 
and  Price  streets,  Germantown. 

(3)  Neither  the  George  B.  Newton  Coal  Com- 
pany nor  any  of  its  officers,  committees,  or  di- 
rectors have  waived  the  rights  of  said  company 
under  said  trade  agreement,  by  acquiescence  or 
otherwise. 

(4)  The  evidence  offered  on  behalf  of  the  de- 
fendant, Shipley,  tending  to  prove  an  oral 
agreement  entered  into  between  said  Shipley 
and  one  or  more  of  the  promoters  of  the  New- 
ton Coal  Company,  in  derogation  of  the  trade 
agreement  entered  into  by  said  Shipley  in  the 
written  contract  of  November  22,  1912,  was 
irrelevant  and  inadmissible. 

(5)  At  no  time  did  Howard  F.  Hansell,  Jr., 
or  any  of  the  promoters  of  the  Newton  Coal 
Company  agree  or  attempt  to  agree  with  said 
Shipley  that  he  would  not  be  required  to  ob- 
serve his  trade  agreement  of  November  22,  1912. 

(8)  The   plaintiflfe   are   entitled   to   the   relief 

Eayed  for  in  the  bill,  and  the  temporary  in- 
action heretofore  entered  by  the  court  should 
continued  to  cover  the  period  named  in  said 
agreement  of  November  22,  1912,  to  wit,  until 
November  22,  1917. 

Discussion. 

The  hill  in  equity  filed  prays  for  an  Injunc- 
tion to  restrain  the  defendant  "from  being  or 
becoming,  directly  or  indirectly,  engaged  in  or 
connected  with  any  retail  coal  business  in  the 
city  of  Philadelphia  for  a  period  of  two  years 
from  November  22,  1912,  either  in  his  own  name 
or  under  the  name  of  St  Martins  Coal  Company 
or  any  other  name  or  as  a  member  of  any  firm 
or  partnership,  or  as  an  officer,  director,  man- 
ager, stockholder,  or  employe  of  any  corpora- 
tion, or  in  any  other  capacity,"  and  further  "re- 
straining and  enjoining  said  Walter  O.  Shipley, 
either  in  his  own  name  or  under  the  name  of 
St.  Martins  Coal  Company  or  any  other  name, 
from  soliciting  retail  coal  business  or  transact- 
ing a  retail  coal  business  in  any  way  vpithin  a 
radius  of  two  miles  from  Main  and  Price  streets, 
.Germantown,  Philadelphia,  for  a  period  of  five 
years  from  November  22,  1912." 

The  plaintiffs  and  defendant  entered  into  an 
agreement  dated  November  22,  1912.  This 
agreement  provided,  in  part:  "In  consideration 
of  the  purchase  of  his  business  by  tbo  said 
J.  Ernest  Richards,  Howard  F.  Hansell,  Jr., 
and  F.  Wilson  Prichett,  it  is  deemed  to  be  to 
the  mutual  interest  of  the  parties  hereto  that 
the  said  Walter  C.  Shipley  shall  refrain  from 
continuing  in  the  coal  business  in  the  dty  of 
Philadelphia  for  a  period  of  two  years,  and  with- 
in a  radius  of  two  miles  from  Main  and  Price 
streets,  Germantown,  for  a  period  of  five  years, 
and  that  he  should  indemnify  the  said  J.  Ernest 
Richards,  Howard  F.  Hansell,  Jr.,  and  F.  Wil- 
son Prichett,  and  their  assigns,  &om  any  loss 
on  account  of  any  claims  made  against  the  said 
Walter  C.  Shipley,  in  connection  with  his  busi- 
ness or  by  reason  of  any  accounts  and  bills 
p^able  now  outstanding." 

It  is  admitted  that  the  defendant  has  estab- 
lished a  retail  coal  business  and  yard  nnder  the 


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458 


101  ATLANTIC  BEPOKTBR 


(Fa. 


oame  of  the  "St  Martins  Goal  Company."  The 
yard  is  located  at  what  is  designated  by  the  de- 
fendant as  7600  Germantown  avenue.  It  ap- 
pears that  this  location  is  a  few  hundred  feet 
outside  of  the  two-mile  radius  from  Main  and 
Price  streets,  Germantown,  the  location  indi- 
cated in  the  contract.  It  is  further  admitted  by 
the  defendant  that  he  has  solicited  business  in 
the  city  of  Philadelphia  within  a  radius  of  two 
miles  from  Main  and  Price  streets,  German- 
town.  The  terms  of  the  agreement  are  neither 
vague  nor  ambiguous,  and  the  meaning  of  the 
parties  to  the  agreement  is  conclusively  pre- 
sumed to  have  been  set  fort  in  its  written 
words.  A  meeting  of  the  parties  preliminary  to 
the  execution  of  the  contract  was  held,  and  a 
contract  submitted  to  the  defendant  was  reform- 
ed at  the  suggestion  of  himself  and  his  counsel. 
We  conclude  from  the  brief  of  counsel  for  de- 
fendant and  his  argument  at  the  bearing  that 
his  interpretation  of  this  contract  is  that  the 
defendant  may  establish  a  retail  coal  business 
beyond  the  two-mile  radius  and  deliver  coal  to 
customers  living  within  the  territory  included 
in  the  radius  of  two  miles  from  Main  and  Price 
streets.  We  need  not  here  concern  ourselves 
as  to  the  motive  or  reason  actuating  the  minds 
of  the  parties  to  the  agreement  as  to  the  limi- 
tation of  time  or  territory  as  therein  set  forth. 
As  we  have  already  stated,  the  purpose  and 
requirements  of  the  agreement  are  perfectly 
clear,  and  we  cannot  read  into  the  agreement 
any  mental  reservation  or  mutual  understand- 
ing not  therein  expressed  at  the  time  of  the  ex- 
ecution. The  defendant  contends  that  the  plain- 
tiff corporation  by  one  of  its  officers  acquiesced 
in  the  action  of  the  defendant  in  securing  a 
coal  yard  and  placing  a  stock  of  Coal  therein 
at  7600  Germantown  avenue.  It  appears  from 
the  correspondence  between  the  defendant  and 
the  president  of  the  plaintiff  company  and  from 
conversation  with  other  officers  of  the_  company 
that  the  defendant  desired  to  sever  his  connec- 
tion with  this  company  as  an  employ^.  There 
is  nothing  in  the  agreement  requiring  the  de- 
fendant to  continue  as  an  employ^  of  the  com- 
pany, and  it  further  appears  that  the  officers  of 
the  company  desire  the  defendant  to  continue  in 
the  service  of  the  company  as  an  employ^.  The 
defendant  further  contends  that  the  action  of 
Mr.  White,  the  vice  president  of  the  plaintiff 
company,  in  advising  defendant  as  to  the  meth- 
od of  constructing  the  coal  pockets  in  defend- 
ant's yard,  amounted  to  an  acquiescence  of  the 
company  in  defendant's  action  in  violating  the 
terms  of  the  agreement  We  find  as  part  of 
Qxe  agreement  the  following:  "(2)  It  shall  not 
be  so  construed  as  to  prevent  Shipley  from  be- 
coming the  owner  of  any  real  estate,  whether 
the  same  is  used  In  the  coal  business  or  other- 
wise." 

The  defendant  cannot  be  estopped  from  estab- 
lishing a  coal  yard  in  the  city  of  Philadelphia 
after  the  expiration  Of  two  years,  provided  such 
yard  is  not  within  a  radius  of  two  miles  from 
Main  add  Price  streets,  Germantown.  The  de- 
fendant evidently  recognized  that  provisioQ,  as 
he  was  careful  to  go  a  few  hundred  feet  beyond 
that  radius  in  constructing  his  new  plant 

We  are  not  convinced  that  the  conduct  of  the 
officers  of  the  company  acting  In  their  individu- 
al capacity  amounted  to  an  acquiescence  in  the 
abrogation  of  the  contract,  nor  that  the  plain- 
tiff corporation  is  estopped  from  enforcing  the 
clause  prohibiting  the  defendant  from  doing 
business  for  a  period  of  five  years  within  a  radi- 
us of  two  miles  from  Main  and  Price  streets, 
Germantown,  and  the  result  of  their  discussions 
in  relation  to  defendant's  right  to  disregard  the 
agreement  was  to  the  effect  that  defendant 
could  not  arbitrarily  abrogate  the  contract 
The  officers  or  directors  of  the  plaintiff  corpora- 
tion appeal;  to  have  brcn  acting  as  individuals. 


In  any  event,  it  does  not  appear  that  there  was 
any  offidal  action  taken  by  the  plaintiff  com- 
pany authorizing  them  to  abrogate  the  contract, 
and  we  are  of  opinion  that  the  officers  of  the 
company,  acting  as  individuals,  cannot  vaive 
the  right  of  the  company  plaintiff  to  enforce  the 
terms  of  the  contract  If  the  agreement  is  to 
be  abrogated,  the  corporation,  in  its  offidal 
capacity,  should  authorize  such  action. 

It  is  not  necessary  at  this  time  to  cite  the 
numerous  authorities  supporting  the  right  of  aa 
injunction  for  violation  of  contracts  similar  to 
the  agreement  in  this  case.  In  Monongahela 
River  Coal  &  Coke  Co.  v.  Jutte,  210  Pa.  288, 
302,  60  Atl.  1088,  1093  (105  Am.  St  Rep.  812,  2 
Ann.  Cas.  931),  it  was  said:  When  a  contract 
is  presented  which  in  some  degree  restrains 
trade,  we  do  not  at  once  decide  that  it  is  void 
as  against  public  policy,  but  we  go  further  and 
inquire:  Is  it  limited  as  to  space  or  time,  and 
is  it  reasonable  in  its  nature?  We  are  ap- 
proaching nearer  and  nearer  to  the  conclusion, 
although  we  have  not  yet  reached  it,  that  com- 
mon honesty  is  the  true  public  policy." 

We  are  of  opinion  that  it  is  a  breach  of  the 
agreement  to  conduct  a  business  similar  to  the 
one  transferred  within  the  radius  of  two  miles 
from  Main  and  Price  streets  or  to  do  acts  in 
violation  of  the  spirit  and  intent  of  the  contract. 
The  defendant  cannot  be  restrained  from  estab- 
lishing a  coalyard,  after  the  term  of  two  years, 
beyond  the  territorial  limits  set  forth  in  the 
agreement,  but  the  soliciting  of  business,  the 
selling  and  delivery  of  coal  to  customers  within 
the  territorial  limits,  is  carrying  on  business 
and  a  breach  of  the  contract 

The  court  on  final  bearing  contlnved  the 
preliminary  injunction  which  it  had  Issued. 
Defendant  appealed. 

Argued  before  BROWN,  a  J.,  and  STEW- 
ART, MOSCHZISKEB,  FRAZEE,  and 
WALMNQ,  JJ. 

Alex.  Simpson,  Jr.,  and  El.  Spencer  Ulller, 
both  of  Philadelphia,  for  appellant  Cauirles 
I>.  McKeehan,  of  Philadelphia,  for  appellees. 

PBR  CURIAM.  This  appeal  U  dismissed 
on  the  facts  found  and  the  legal  conclaslons 
reached  by  the  learned  chancellor  below  and 
on  his  discussion  of  the  questions  Inrolved. 

Decree  affirmed  at  appellantf s  costs. 


CK7  Ps.  ISS) 
hVKQ  T.  SUTTON  et  al 

(Supreme  Court  of  Pennsylvania.     Mardi  12, 
1917.) 

Mabteb  and  Skbvant  4=a217(l) — Safe  Place 
TO  WoBK— KnowLEDOK  Or  Daroeb. 
A  serraot  suiag  for  personal  injury  from 
stepping  into  a  hole  in  the  floor  of  a  building  in 
which  he  was  working  could  not  recover  where 
he  had  noticed  a  number  of  similar  holes,  and 
had  attempted  to  cover  them,  but  bad  missed  the 
one  into  which  he  fell. 

[Sd.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  {  574.} 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Harry  Lung  against  Charles  M. 
Sutton  and  Richard  W.  Stephenson,  trading 
as  Sutton  &  Stephenson,  to  recover  damages 
for  personal  Injury.  Ftom  a  Judgment  re- 
fusing to  litikeofr  a  compulsory  nonsuit,  plain- 
titf  appeals.    Affirmed. 


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EDMOKDS  ▼.  CHANDLER 


469 


From  tbe  record  it  appeared  that  the  plain- 
tiff at  the  time  of  the  accident  bad  been 
ordered  by  the  defendant  firm  to  put)  tile 
npon  and  around  the  base  of  a  column  in  a 
building  which  was  being  altered  and  repair^ 
ed;  that  in  the  floor  there  were  a  number  of 
boles,  and  that  when  the  plaintiff  went  to 
woric  he  noticed  the  holes,  endeavored  tto  cov- 
er them,  and  then  went  to  work.  After  work- 
ing three-quarters  of  an  hour  he  stepped  in- 
to one  of  the  holes  and  was  seriously  hurt. 
He  explained  that  he  had  overlooked  this 
hole  because  it  was  In  the  dark.  At  the  close 
of  the  plaintifTs  case  the  court  entered  a 
compulsory  nonsuit,  which  It  Bubseqnently  re- 
fused to  take  off.    Plaintiff  appealed. 

Argued  before  BROWN,  a  J.,  and  STEW- 
ART. MOSCHZISKBR,  FRAZER,  and  WAI<- 
LING,  JJ. 

Charles  E.  Asnis,  David  Bortin,  Jacob  Sing- 
er, and  Emanuel  Furth,  all  of  Philadelphia, 
for  appellant.  A.  L.  Moise  and  W.  W.  Smlth- 
ers,  both  of  Philadelphia,  for  appellees. 

PER  CURIAM.  The  appellant,  an  employe 
of  the  appellees,  was  injured  by  stepping  In- 
to a  hole  In  a  floor  of  a  building  In  which 
be  was  working.  Having  noticed  a  number 
of  holes  In  this  floor,  he  proceeded,  before 
starting  to  work,  to  cover  them  with  boards 
procured  from  another  floor,  but  unfort^inate- 
ly  missed,  as  he  frankly  admitted  in  his  tes- 
timony, the  one  into  which  he  fell.  His  fall- 
are  to  cover  that  hole  resulted  in  his  injuries, 
and  for  this  reason  the  court  below  could  not 
have  avoided  the  entry  of  the  nonsuit. 

Judgment  afllrmed. 


(2S7  P>.  140 

EDMONDS  et  al.  v.  CHANDLER. 

(Supreme  Court  of  Pennsylvania.     March  12, 
1917.) 

Equity  «ss>443— Btli,  of  Rkvixw— Judoubitt 

or  SnPBKHB  COUBT. 

After  a  decision  by  the  Supreme  Court  a 
bill  of  review  will  not  be  entertained  in  the  court 
from  which  the  appeal  was  taken,  especially 
where  the  purpose  of  the  bill  is  to  correct  an 
alleged  error  as  to  matters  which  were  a  part  of 
the  record  in  the  case  at  the  time  of  tlie  appeal. 
{Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  -tt  1071-1077.] 

Appeal  from  Court  of  Conmum  Pleas,  Dau- 
phin County. 

Bill  In  equity  by  Franklin  Spencer  Ed- 
monds and  another  against  Percy  M.  Chan- 
dler, recover  of  the  Tradesmen's  Trust  Com- 
pany, to  review  a  decree  distributing  the  as- 
sets of  the  Insolvent  trust  company.  From  a 
decree  dismissing  the  bill,  plaintiffs  appeal. 
Afnnned. 

On  final  bearing  the  court,  McCarrell,  J., 
in  the  court  of  common  pleas,  filed  the  fol- 
lovriog  opinion: 

The  plaintifTs,  Franklin  Spencer  Edmonds  and 
Charles  I.  Cronin,  filed  this  bill  in  the  above- 


entitled  case,  and  as  a  part  of  the  proceedings 
taken  therein,  against  Percy  M.  Chandler,  re- 
ceiver of  the  Tradesmen's  Trust  Company,  ask- 
ing for  a  review  of  the  decree  of  distribution 
made  to  them  as  creditors  of  said  trust  com- 
pany. The  company  was  dissolved  October  11, 
1911,  and  a  receiver  duly  appointed.  As  his 
acconnts  were  filed  they  were  referred  to  audi- 
tors, in  pursuance  of  the  act  of  1900,  for  audit 
and  distribution.  These  plaintiffs  presented 
their  claim,  asserting  that  they  had  the  right  to 
preference  over  other  creditors,  because  their 
claim  was  secured  by  an  arrangement  between 
the  Tradesmen's  Trust  Company  and  one  John 
Megraw,  who  was  interested  in  a  building  oper- 
ation in  West  Philadelphia,  and  had  arranged 
with  the  trust  company  to  finance  the  buildmg 
operation,  and  bad  given  as  security  for  the 
moneys  needed  for  that  purpose  ground  rents 
and  mortgages  resting  upon  ue  various  lots  of 
ground  included  within  the  limits  of  the  building 
operation.  The  nlaintifFs  became  the  purchas- 
ers of  certain  of  these  mortgages  and  ground 
rents.  The  agreement  between  Megraw  and  the 
trust  company  provided,  in  snlistance,  orally, 
that  the  funds  received  from  the  sale  of  ground 
rents  and  mortgages  should  be  a  trust  fund  in 
the  hands  of  the  trust  company  to  secure  the 
trust  company  for  its  advances  of  money  and  the 
protection  of  the  securities  which  were  to  be 
sold  by  the  trust  company  for  the  purpose  of 
raising  funds  to  complete  the  liuilding  opera- 
tion. The  building  operation  had  not  been  com- 
pleted at  the  time  the  trust  company  was  dis- 
solved in  October,  1911,  and  these  plnintiSs 
presented  to  the  auditors  appointed  to  make  dis- 
tribution of  the  money  in  the  hands  of  the  re- 
ceiver their  daim  for  the  mortgages  and  ground 
rents  which  they  had  purchased,  and  requested 
a  preference  over  the  general  creditors  in  the 
distribution  of  the  funds  in  the  hands  of  the  re- 
ceiver t>ec8U8e  of  the  agreement  to  treat  the  pro- 
ceeds of  the  ground  rents  and  mortgages  as  a 
trust  fund.  The  plaintiffs  offered  no  special 
testimony  for  the  purpose  of  showing  their 
right  to  a  preference,  but  the  auditors  examined 
fully  into  the  matter  and  heard  testimony  upon 
the  subject  at  various  dates.  They  decided  that 
no  trust  fund  had  been  created,  that  the  money 
received  from  sale  of  ground  rents  and  mortgag- 
es covering  the  Megraw  operation  had  been  mix- 
ed with  the  general  funds  of  the  company,  and 
were  a  part  of  the  general  assets,  and  therefore 
refused  to  allow  the  plaintiffs  a  preference,  but 
did  allow  them  their  proper  percentage  from 
the  general  fund.  Exceptions  were  taken  to  the 
report  of  the  auditors,  which  exceptions  were 
overruled  by  this  court,  and  an  appeal  was 
taken  to  the  Supreme  Court  by  the  plaintiffs, 
resulting  in  the  affirmance  of  our  decree  of  dis- 
tribution. This  opinion  affirming  our  decree  was 
delivered  Ju^  3,  1915.  The  present  bill  for  a 
review  was  filed  October  19,  1915.  An  answer 
has  been  filed  by  the  receiver,  and  the  matter  is 
now  before  us  for  decision. 

The  plaintiffs  contend  that  the  testimony  of 
Howard  P.  Page,  quoted  in  part  in  their  bill, 
shows  a  manifest  mistake  of  law  and  of  fact 
upon  the  face  of  the  record,  and  that  they  are 
therefore  entitled  to  a  review.  Their  conten- 
tion is  that  the  testimony  of  Page  shows  that 
a  trust  fund  was  in  existence  covering  the  pro- 
ceeds of  the  ground  rents  and  mortgages  con- 
nected with  the  Megraw  operation,  out  of  which 
the  plaintiffs  were  entitled  to  l>e  paid  in  prefer- 
ence to  other  creditors.  This  testimony  was 
taken  April  26,  1912.  No  request  was  made  to 
the  auditors  or  to  this  court,  based  upon  this 
testimony  for  a  specific  finding,  that  this  tes- 
timony showed  the  existence  of  a  trust  fund, 
such  as  the  plaintiff  asserted  was  established 
for  their  protection.  No  exception  was  taken 
to  the  auditors'  finding  specifically  upon  that 
ground,  and  no  application  was  made  either  to 


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the  auditors  or  to  tbis  court  for  permisgion  to 
file  exceptions  nnnc  pro  tunc.  That  these 
plaintiffs  knew  of  the  existence  of  this  testi- 
mony or  b;  the  exercise  of  reasonable  diligence 
could  have  known  of  the  same  prior  to  the  filing 
of  the  auditors'  report  is  reasonably  certain. 
They  were  present  by  their  counsel  at  the 
morning  session  of  the  auditors'  meeting  April 
26,  1012.  After  the  matter  has  been  decided 
by  the  court  of  last  resort,  are  they  entitled 
now  to  maintain  a  bill  of  review  for  the  pur- 
pose of  correcting  the  alleged  mistake?  This 
question  has  been  considered  by  our  appellate 
courts  quite  frequently.  In  Dennison  v.  Goehr- 
ing,  6  Pa.  402,  the  plaintifEs  had  filed  a  bill, 
setting  out  that  a  trust  was  created  for  the 
benefit  of  one  of  the  plaintiffs.  A  final  decree 
was  pronounced  in  favor  of  the  plaintiffs,  and 
the  defendant  appealed  to  the  Supreme  Court. 
After  hearing  in  the  Supreme  Court  the  decree 
of  the  court  below  was  affirmed.  Afterwards 
the  defendant  brought  his  bill  of  review  in  the 
lower  court  for  alleged  error  in  law  appearing 
in  the  body  of  the  decree.  The  lower  court  dla- 
missed  the  bill  of  review,  and  from  this  decree 
of  dismissal  an  appeal  was  taken.  Mr.  Justice 
Bell,  page  403,  uses  the  following  language: 
"Thus,  the  only  question  presented  for  deter- 
mination is,  whether  a  bill  of  review  for  errors 
on  the  face  of  the  record  can  be  entertained  in 
an  inferior  tribunal,  after  the  final  decree  of  this 
court  on  appeal,  affirming  the  decree  appealed 
from."  Ifumerous  decisions  upon  this  subject 
are  then  referred  to,  and  at  i>age  405  appears 
the  following:  "These  decisions  are  consonant 
with  reason;  and  the  rule  they  establish  is  ab- 
solutely necessary  to  prevent  the  confusion  and 
mischiefs  which  would  flow  from  practically 
transposing  the  relative  positions  of  onr  courts, 
superior  and  inferior,  an  inconvenience  which 
the  occasional  correction  of  mistake  in  a  com- 
paratively few  •  •  •  cases  would  not  com- 
pensate." To  the  same  effect  in  George's  App., 
12  Pa.  280;  also  Felty  ▼.  Calhoun,  147  Pa.  27, 
23  AtL  43a 

The  case  of  Ricketts  v.  Capwell,  241  Pa.  1S8, 
88  Atl.  319,  is  in  accordance  with  the  other  de- 
cisions, and  holds  that  after  a  decision  by  the 
Supreme  Court  a  bill  of  review  cannot  be  en- 
tertained in  the  court  from  which  the  appeal 
was  taken.  The  plaintiffs  before  the  auditors 
and  in  this  court  asserted  that  they  were  enti- 
tled to  a  preference.  The  burden  was  therefore 
upon  them  to  show  b^  what  authority  they  had 
this  preference.  Assigned  Estate  of  the  Solici- 
tor's Loan  &  Trust  Co.,  3  Pa.  Super.  Ct.  244. 
The  auditors  had  before  them  the  testimony  of 
Mr.  Page  upon  the  basis  of  which  the  right  to 
this  bill  of  review  is  based,  and  they  had  also 
other  testimony  upoA  the  same  subject,  partic- 
ularly the  testimony  of  Lewis  K.  Brooks,  for- 
mer treasurer  of  the  company.  He  testified 
distinctly  and  po^tively  that  the  moneys  receiv- 
ed by  the  Tradesmen's  Trust  Company  were 
mingled  with  its  own  funds  and  became  a  part 
of  the  general  assets.  Referring  to  accounts 
which  the  trust  company  had  with  certain 
banks,  which  accounts  were  marked  "Title  De- 
partment," Mr.  Brooks  testified  as  follows:  "Q. 
Then  do  I  understand  that  the  purpose  of  having 
those  title  department  accounts  was  not  to  keep 
trust  funds  which  would  go  through  the  title  .de- 
partment separate  and  apart  from  the  general 
funds  of  the  company?  A.  No,  it  was  not. 
That  was  hoped  to  arrive  at  some  day,  but  that 
was  not  the  intention  when  those  accounts  open- 
ed, nor  were  those  accounts  run  for  that  pur- 
pose. Q.  Then  do  I  understand  that  the  title 
department  accounts  which  you  have  just  been 
speaking  of,  in  those  account  funds  which  be- 
longed to  other  people  who  had  transactions 
through  the  title  department,  were  not  deposited 
there  for  the  purpose  of  keeping  those  funds  In- 
tact and  separate  and  apart  from  the  funds  of 
the  company?    A.  No,  they  were  not" 


The  testimony  of  Mr.  Brooks  upon  this  sub- 
ject was  clear  and  distinct  and  positive,  and 
on  that  the  auditors  found  that  the  funds  re- 
ceived by  the  trust  company  from  the  securities 
connected  vdth  the  Megraw  operation  had  been 
mingled  with  the  general  funds  of  the  compa- 
ny, and  that  no  funds  had  been  earmarked  as 
belonging  to  a  trust  for  the  holders  of  these  se- 
curities. The  testimcmy  of  Howard  Page,  upon 
whom  the  plaintiffs  now  rely,  and  which  was 
taken  long  before  the  appeal  to  the  Supreme 
Court  was  taken,  does  not,  in  our  opinion,  show 
that  the  testimony  of  Mr.  Brooks  is  incorrect. 
It  seems  to  be  In  entire  harmony  with  it.  Mr. 
Page  speaks  of  the  account  of  the  trust  com- 
pany with  the  Corn  Exchange  National  Bank 
and  with  the  Fourth  Street  National  Bank. 
These  accounts  were  both  in  the  name  of  the 
Tradesmen's  Trust  Company,  and  showed  that 
the  banks  respectively  were  indebted  to  the 
Tradesmen's  Trust  Company,  Title  Department, 
in  the  sums  appearing  in  the  respective  ac- 
counts. Neither  account,  however,  shows  that 
the  funds  referred  to  therein  were  designated 
as  a  trust  fund  for  the  holders  of  the  Megraw 
securities,  or  in  any  way  indicated  that  the  ac- 
counts showed  anything  else  than  the  indebted* 
ness  of  the  banks  to  the  trust  company.  The 
funds  referred  to  in  these  accounts  were  not 
earmarked,  and  no  one  could  tell  therefrom  that 
they  were  anything  else  than  a  statement  of 
the  money  due  from  each  bank  respectively  to 
the  trust  company.  Mr.  Page  undertakes  to 
analyze  and  examine  the  deposits  and  ascertain 
from  what  source  moneys  credited  therein  were 
derived.  He  said:  "By  analyzing  the  balances 
I  find  various  points  that  they  would  transfer 
from  this  special  deposit  to  the  general  deposit 
of  the  company  certain  sums  of  money,  in  the 
most  cases  even  amounts  of  flO,000,  $15,000 
or  $26,000,  indicating  the  amounts  deposited  in 
this  account,  and,  diecking  from  the  last  de- 
posit made,  I  find  that  eight  items,  the  last 
deposits  which  were  made  aggregating  $13,658.- 
49,  which  consisted  of  the  proceeds  of  the  sale 
of  six  ground  rents." 

l^ere  does  not  appear  from  any  testimony  to 
have  been  anything  upon  the  books  of  the  bank 
to  indicate  the  source  from  which  the  money  de- 
posited came;  and,  as  already  stated,  the  ac- 
counts in  these  respective  banks  were  not  mark- 
ed as  trust  funds  for  the  Megraw  securities  or 
any  other  particular  securities.  The  testimony 
of  Mr.  Page  seems  to  be  consistent  with  the  tes- 
timony of  Mr.  Brooks  that  these  deposits  were 
to  the  general  credit  of  the  trust  company,  and 
that  the  funds  were  mingled  with  other  funds, 
so  that  they  were  apparently  a  part  of  the  gen- 
eral assets  of  the  trust  company.  Mr.  Page 
testified:  "I  might  say  that  all  of  the  checks 
drawn  upon  the  title  department  funds  'were 
made  payable  to  the  Tradesmen's  Trust  Com- 
pany, and  redeposited  in  their  general  funds." 
This  is  in  exact  harmony  with  the  testimony  of 
Mr.  Brooks.  At  the  time  of  the  hearing  before 
the  auditors  the  plaintiffs  submitted  all  the  tes- 
timony which  they  desired  to  offer  to  sustain 
their  right  to  a  preference.  They  were  fully 
heard  upon  this  subject  by  the  auditors,  by  this 
court,  and  by  the  Supreme  Court.  The  audi- 
tors had  before  them  all  the  testimony,  both  of 
Mr.  Brooks  and  Mr.  Page.  Mr.  Page  was  a  cer- 
tified public  accountant,  employed  by  the  re- 
ceiver to  examine  the  books  of  the  trust  com- 
pany, and  he  was  called  to  testify  before  the 
auditors  as  to  whether  the  receiver  had  charged 
himself  in  account  with  all  the  money  received 
by  him  for  the  trust  company.  He  had  never 
been  an  officer  of  tiio  trust  company.  Mr. 
Brooks,  the  treasurer  of  the  company,  testified 
positively  that  no  trust  fund  had  ever  been 
created  or  set  aside,  although  the  company  ex- 
pected to  do  so  in  the  future.  The  auditors  con- 
sidered all  this  testimony  and  concluded  that: 
"The  moneys  received  by  the  trust  company 


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IN  RE  BERBERICH'S  ESTATE 


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were  mingled  wlili  its  own  funds  and  became  a 
part  of  the  general  assets.  Appellants  have 
failed  to  Identify  the  funds  in  such  manner  as 
to  entitle  them  to  foUow  and  claim  it  as  a  tnist 
fand  to  the  exclusion  of  other  creditors."  This 
conclusion  has  been  affirmed  by  the  Supreme 
Court  in  opinion  of  Mr.  Justice  Frazer  in 
Comm.  V.  Tradesmen's  Trust  Co.  (No.  1),  250 
Pa.  372.  376,  05  Atl.  574. 

We  are  not  satisfied  that  this  conclusion 
reached  by  the  Supreme  Court  works  any  in- 
justice to  the  plaintiffs.  We  are  of  opinion 
that  they  are  not  now  entitled  to  a  bill  of  re- 
view. An  appeal  to  this  court  for  a  rehearing 
on  the  ground  of  the  alleged  after-discovered 
evidence  necessarily  must  have  been  refused, 
for  the  evidence  suggested  as  after  discovered 
was  already  on  the  record,  and  plaintiff  must  be 
conduaively  presumed  to  have  known  of  ita 
existence.  Now,  after  the  whole  matter  has 
been  considered  and  decided  by  our  court  of 
last  resort,  we  are  powerless  to  grant  further 
relief.  There  are,  perhaps,  a  thousand  cred- 
itors of  the  Tradesmrai's  Trust  Company  whose 
<daini8  are  being  held  up  because  of  the  proceed- 
ings for  the  distribution  of  the  funds  in  the 
hands  of  the  receiver,  and  to  permit  the  filing 
of  the  bill  of  review  at  this  late  date  nnder  the 
circumstances  existing  would  be  without  prece- 
dent, and  would  unnecessarily  and  improperly 
interfere  with  the  rights  of  otiier  creditors,  who 
are  not  made  parties  to  the  proposed  bill  of 
review. 

Tbe  court  dismissed  the  bill.  Plaintiffs  ap- 
pealed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART. MOSCHZISKEK,  FRAZEB,  and  WAli- 

John  G.  Jobnaon  and  E.  Spencer  Miller, 
both  of  Philadelphia,  for  awellants.  Pax- 
Km  Deeter  and  Samnel  M.  Clement,  Jr.,  both 
of  Philadelphia,  for  appellee. 

PER  CURIAM.  The  decree  in  this  case  Is 
affirmed,  at  appellants'  costs  on  the  opinion 
of  the  learned  court  below  dismissing  their 
bilL 


(2&7  Fs.  181) 

In  re  BERBERICH'S  ESTATE. 

(Supreme  Court  of  Pennsylvania.     March  18, 
1917.) 

1.  PUSDOES    «=»56(4)— SaLB— NOTICK. 

Hie  pledgee  of  property  before  selling  it  to 
answer  for  the  default  of  the  pledgor  must  give 
notice  to  the  pledgor  in  order  to  afford  him  op- 
portunity to  continue  the  pledge  if  he  desires, 
and  upon  coatinued  default  the  pledgee  may  sell, 
but  only  upon  notice  of  sale  so  that  tbe  pledgor 
may  protect  himself  and  his  property  by  redemp- 
tion or  otherwise. 

[Ed.  Note.— For  other  cases,  see  Pledges,  Cent 
Dig.  §!  157-159,  178,  179.] 

2.  Bbokeus  ^=924(2)  —  Stockbbokebs  —  Mab- 
oiK  Transaction— Salb  of  Stock. 

Where  a  stockbroker  contracts  to  carry  stock 
upon  margin,  an  agreement  is  implied  that  it 
shall  not  be  sold  to  prevent  the  exhaustion  of 
tbe  margin  until  additional  margin  shall  have 
boen  requested,  and  a  reasonable  time' afforded 
for  fumisbing  it,  and  a  sale  of  the  stock  without 
notice  to  the  owner  is  a  breach  of  the  broker^s 
contract 

[Ed.    Note. — For   other    cases,    see    Brokers, 
Cent  Dig.  f  19.]  | 


3.  EeroFPEX  $=394(1)  —  Salb  or  Stock  —  Ac- 
quiescence. 

The  widow  of  a  customer  who  had  dealt  with 
a  stockbroker  on  margins  bad  no  standing  in  her 
own  right  to  interfere  with  the  broker's  sales  of 
the  stock,  and  as  the  administratrix  of  the  cus- 
tomer and  as  against  the  broker  who  had  ille- 
gally converted  the  stock  might  stand  quiet  until 
the  broker  demanded  the  balance  due,  as  the 
wrongdoer  could  not  compel  her  election  between 
a  ratification  of  bis  act  or  a  repudiation  of  it, 
and  hence  was  not  estopped  to  complain  of  the 
transaction,  especially  where  the  broker  had  not 
been  misled  to  his  injury  in  reliance  upon  her 
action. 

[Ed.  Note.— For  other  cases,  see  Estoppel, 
Cent  Dig.  |  246.] 

4.  Attobney  and  Client  «=»77— AtrraoRiTT 
or  Attobnky— Sale  of  Stock  Pledged  bt 
Testatob. 

An  attorney  for  an  administratrix,  without 
express  authority  to  bind  her  or  the  estate,  has 
no  implied  authority  to  authorize  a  broker  to 
sell  stocks  pledged  by  the  decedent  without  no- 
tice to  the  administratrix. 

[Ed.  Note.— For  other  cases,  see  Attorney  and 
CUent,  Cent  Dig.  fi  8»-90,  132,  136,  148,  149.] 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

Kathryn  Berberich,  administratrix  of  the 
estate  of  Herman  Berberich,  deceased,  ap- 
peals from  a  decree  dismissing  her  excep- 
tions to  adjudication  of  the  claim  of  William 
Hastie  Smith,  Jr.,  &  Co.  against  the  estate^ 
Reversed,  with  a  procedendo. 

Argued  before  BROWN,  C  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and  FRA- 
ZER, JJ. 

James  J.  Breen,  of  Philadelphia,  for  appel- 
lant Frederick  J.  Knaus,  of  Philadelphia, 
for  appellees. 

STEWART,  J.  EV)r  sereral  years  prior  to 
July,  1914,  WiUiam  Hastie  Smith,  Jr.,  &  Co., 
a  firm  of  stockbrokers  in  tbe  city  of  Phil- 
adelphia, bad  carried  an  account  with  one 
Herman  Berberich.  The  firm  from  time  to 
time  purchased  stocks  and  bonds  on  tbe  tat- 
ter's order,  advandog  their  own  money  for 
that  purpose,  and  charging  him  with  tbe 
amount  so  advanced,  plus  their  regular  com- 
mission and  Interest  The  bonds  and  stocks 
so  purchased  remained  pledged  in  the  hands 
of  the  brokers  as  security  for  their  advance- 
ments and  charges,  together  with  whatever 
margin  might  be  deposited  by  Berberich  pur- 
suant to  demand  made  by  tbe  firm  for  addi- 
tional security  against  a  declining  market. 
Under  date  of  June  30, 1914,  the  Arm  render- 
ed a  quarterly  statement  of  account  to  Ber- 
berich— ^the  last  one  rendered — showing  an 
Indebtedness  due  from  him  of  $56,806.17,  for 
which  it  held  as  security  «iumerated  bonds 
and  stocks  purchased  on  his  order.  On  16th 
of  July  following,  inpon  the  order  of  Ber- 
berich, the  firm  purchased  for  him  certain 
additional  stocks  increasing  his  indebtedness 
to  $5S,40e.l7,  subject  to  a  credit  of  $440  for 
certain  dividends  collected  by  the  firm,  which 
reduced  the  claim  to  $57,966.17.     Thus  the 


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account  stood  when  towards  the  end  of  July, 
1814,  the  firm  called  on  Berberich  for  addi- 
tional margin.  This  demand  he  attempted  to 
comply  with  by  mailing  to  the  firm  two 
checks  drawn  by  himself,  one  for  $1,000,  and 
one  for  $2,000,  against  deposits  ample  to  meet 
the  demand.  These  cb(H:k8  reached  the  firm 
on  Saturday  July  25th,  and  were  promptly 
d^oslted.  The  day  following,  Sunday,  Ber- 
berich met  his  death  In  the  surf  at  Wildwood, 
N.  J.  On  Monday,  the  two  checks  passed 
through  the  clearing  house.  The  one  for  $1,- 
000  was  paid.  The  other  was  refused  by  the 
bank  for  the  reason  as  written  on  the  back, 
"Maker  deceased."  On  the  11th  of  August 
following  letters  of  administration  on  the 
e&tate  of  Herman  Berberich  were  granted 
to  his  widow,  Kathryn  Berberich,  the  ac- 
countant and  appellant  On  the  audit  of  her 
account  as  stated  by  herself  William  Hastle 
Smith,  Jr.,  &  Co.,  the  above-named  firm  of 
brokers,  presented  its  claim  as  above  indi- 
cated, reduced  by  the  $1,000  check  which  had 
been  paid,  and  demanded  payment  out  of 
balance  in  the  hands  of  the  administratrix. 
The  correctness  of  the  account^  was  not  dis- 
puted; that  is  to  say,  there  was  no  conten- 
tion that  it  did  not  correctly  exhibit  the  sev- 
eral stock  transactions  between  Berberich 
and  the  firm.  The  dispute  arose  out  of  trans- 
actions on  the  part  of  the  firm  after  the  death 
of  Berberich.  On  the  day  following  the  death 
of  the  latter,  Monday,  July  27th,  there  oc- 
curred a  rapid  decline  in  stock  values  because 
of  the  warlike  situation  abroad.  The  margin 
demanded  by  Berberich  not  having  been  met 
In  full  because  of  his  sudden  death,  and  being 
apprehensive  of  a  still  further  decline  In  mar- 
ket values,  the  firm,  without  notice  to  any 
one  in  Interest,  proceeded  to  sell  sufficient  of 
the  pledged  securities  of  Berberich  to  furnish 
it  with  what  it  believed  a  reasonable  margin 
for  its  own  protection.  These  sales  made  on 
the  day  following  Berberlch's  death,  while 
furnishing  sufficient  margin  to  the  brokers, 
resulted  in  heavy  loss  to  Berberlch's  estbte. 
Hie  firm,  by  letter  dated  the  same  day  ad- 
dressed to  the  widow  of  Berberich,  advised 
her  of  the  fact  that  they  were  carrying  a 
large  amount  of  stock  for  her  husband,  that 
he  had  sentl  a  check  for  $2,000  to  be  placed 
to  his  credit  which  had  been  refused  by  the 
bank  on  which  it  was  drawn,  and  added: 

"This  reduced  his  credit  with  ua  to  such  an 
extent,  and  the  stock  market  was  ao  panicky  <» 
account  of  the  war  scare  that  we  felt  it  wise  to 
reduce  his  boldings,  and  go  sold  1,100  shares 
as  per  inclosed  notice.  It  is  well  that  we  did 
80,  as  the  prices  of  stocks  we  sold  are  much  low- 
er to-night.  As  soon  aa  you  are  able  to  take 
these  matters  up  with  us,  we  would  be  glad  to 
call  upon  you  and  explain  the  situation." 

The  stocks  reported  sold  were  Philadelphia 
ESectric  100  shares.  Lake  Superior  000 
shares,  and  Electric  Storage  100  shares. 
Two  days  thereafter  values  continued  to  de- 
cline, and  the  firm  sold  the  following  addition- 
al securities  of  Berberich,  without  notice  to 


any  one  In  interest:  Lake  Superior  100  shares, 
Electric  Storage  200  shares,  and  Kansas 
Southern  100  shares — and  carried  proceeds 
to  Berberlch's  credit  During  the  months  of 
September,  October,  and  November  follow- 
ing, further  sales  were  made  without  notice 
to  the  administratrix  of  the  estate,  but  <ft 
which  she  was  subsequently  advised  by  the 
firm.  This  left  in  the  hands  of  the  firm  $10,- 
000  in  Lake  Superior  bonds  and  775  shares 
of  Lake  Superior  stock.  The  total  proceeds 
of  sales  made  amounted  to  $42,821.74.  This 
credited  on  Berberlch's  account  left  a  bal- 
ance of  Indebtedness  of  $14,144.43,  for  which 
claim  was  made  before  the  auditor.  The 
facts  not  being  In  dispute,  on  this  presenta- 
tion of  them  the  auditor  held:  (1)  That  In 
making  the  sales  in  July  the  claimants  acted 
within  their  rights  and  powers,  they  sold 
only  sufficient  to  protect  themselves,  instead 
of  selling  out  decedent's  entire  holdings; ;  the 
prices  obtained  were  higher  than  those  ob- 
tainable during  the  rest  of  the  year,  and 
had  they  waited  longer  greater  loss  would 
have  been  occasioned;  (2)  the  claimants  im- 
mediately notified  the  wife  of  the  decedent 
of  the  action  they  had  taken,  and  if  it  was 
not  her  duty  as  vrtdow  to  repudiate  their  ac- 
tion, it  certainly  was  her  duty  to  do  so  as 
administratrix  after  her  appointment;  (3) 
that  as  to  sales  made  after  appointment,  the 
administratrix  through  her  counsel  waived 
any  necessity  of  notice  by  directing  <daimants 
to  protect  themselves  as  best  tiiey  could. 
The  auditor  accordingly  awarded  to  claim- 
ants the  full  amount  of  their  claim  as  pre- 
sented. Exceptions  having  been  filed  the 
case  was  heard  by  the  court  in  banc,  with 
the  result  that  the  exceptions  were  dismissed 
and  the  report  of  the  auditor  confirmed. 
From  this  decree  we  have  the  present  appeal 
by  the  administratrix  of  the  estate. 

In  the  opinion  filed  by  the  court,  while 
there  is  no  express  dissent  from  the  view 
taken  by  the  auditing  judge  in  what  we  have 
above  indicated  as  the  latter's  first  con<dn- 
sion,  namely,  that  in  making  the  sales  in 
July  the  claimants  acted  within  their  rights, 
there  is,  nevertbeless,  a  refusal  to  rest  the 
case  on  any  sudi  ground  accompanied  by  this 
qualified  admission: 

"If  the  rights  of  the  parties  depended  simply 
upon  this  question,  we  snould  probably  hold  that 
the  stoclcs  were  unlawfuly  converted,  and  the 
claimants  were  liable  for  the  consequent  loss." 

Inasmuch  as  we  are  of  opinion  that  the 
court  should  have  held  unqualifiedly  that 
these  sales  of  stock  were  In  law  and  fact  an 
illegal  conversion  of  the  same,  and  are  un- 
able to  agree  that  the  reasons  assigned  by 
the  court  are  sufficient  in  law  to  relieve  tlie 
claimants  from  the  legal  consequences  in- 
curred, a  brief  reference  to  some  well-estab- 
lished rules  and  principles  will  be  here  In 
place.  Reduced  to  its  simplest  terms,  the  re^ 
latlon  to  the  parties  to  this  transaction  was 
that  of  pledgor  and  pledgee.  No  special  con- 
tract between  the  parties  touching  the  mode 
or  manner  of  conductinK  the  business  that 


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engaged  them  having  been  shown,  it  was  nec- 
essarily subject  to  common-law  rules  and 
principles,  and  by  these  their  recit)rooal 
rights  and  obligations  must  be  determined. 
Though  having  certain  property  rights  in 
the  things  pledged,  the  pledgee  had  no  right 
of  disposal  except  under  well-defined  condi- 
tions; and,  except  as  these  conditions  have 
been  fully  met,  any  sale  of  the  pledge  by 
the  pledgee  must  be  held  to  be  unlawful  con- 
version of  the  property. 

[1]  One  of  these  conditions  requires  that 
before  any  sale  be  made  to  answer  for  any 
default  of  the  pledgor  the  pledgee  shall  give 
notice  to  the  pledgor  or  some  one  standing 
in  Interest  with  him,  in  order  that  opportuni- 
ty may  be  afforded  tiim  to  continue  the 
pledge  if  he  may  desire^  Upon  continued 
default  the  pledgee  may  sell,  but  even  then 
only  upon  notice  that  sale  will  be  made,  so  that 
opportunity  be  again  afforded  the  pledgor  to 
protect  himself  and  his  property,  if  he  can, 
by  redemption  or  otherwise. 

[2]  Where,  as  In  the  present  case,  there  is 
a  contract  to  carry  stocks  upon  margin,  an 
agreement,  as  part  of  the  contract.  Is  Im- 
plied, that  such  stocks  shall  not  be  sold.  In 
case  there  Is  danger  of  the  exhaustion  of  the 
margin,  until  additional  margins  shall  have 
been  applied  for  and  a  reasonable  time  afford- 
ed for  furnishing  the  same.  A  sale  of  the  stock 
without  notice  is  a  breach  of  the  contract  on 
the  part  of  the  broker.  Doubtless  parties 
may  agree  that  the  broker  may  sell  without 
notice  when  stocks  falling  in  price  show  that 
the  margin  does  not  cover  the  difference  be- 
tween current  rates  and  the  price  paid,  but. 
In  the  absence  of  any  snch  agreement,  it 
wonld  t)e  a  breach  of  good  faith  and  common 
honesty  to  allow  the  pledgor's  property  to  be 
sacrificed  without  giving  him  an  opiwrtunity 
to  Increase  his  margin  and  hold  the  stock 
for  a  favorable  change  In  the  market.  This 
Is  said  in  Bitter  r.  Cnshman  &  Gignonx,  35 
How.  Prac.  (N.  T.)  284,  and  multiplied  cases 
from  oar  own  books  may  be  found  of  like 
effect.  We  have  cited  the  above  case  In  this 
connection  more  particularly  because  of  what 
follows  the  extract  above  given.  The  learn- 
ed Jndge  there  concludes: 

"I  know  it  ia  said  that  fluctuations  in  the  stock 
market  are  so  sudden  and  unexpected  that  there 
is  not  time  to  give  notice;  but  these  abrupt 
transitions  in  the  value  of  stocks  are  and  have 
been  well  known  for  many  years,  and  shonld  be 
provided  for  by  brokers  and  those  with  whom 
they  deal.  If  no  snch  provision  is  made,  par- 
ties must  abide  by  the  rules  of  law." 

In  Blspham'8  Eqnlty  PL  (8th  Ed.)  369,  It  is 
said: 

"The  rifdit  to  sell  apon  notice,  however,  is  one 
in  the  exercise  of  which  a  great  deal  of  care  is 
required;  and  the  pledgee  may  be  held  responsi- 
ble if  be  does  not  strictly  follow  all  the  require- 
ments of  the  law  by  which  his  rights  are 
fenced." 

In  Dlller  r.  Brnbaker,  62  Pa.  498,  91  Am. 
Dec.  177,  following  Davis  v.  Funk,  39  Pa. 
243,  80  Am.  Dec:  519,  and  Sitgreaves  v.  Farm- 
ers' Bank,  49  Pa.  359,  it  is  expressly  declar- 


ed that  the  pledgor  cannot  apprc^riate  the 
pledge  in  satisfaction  of  the  debt  intended  to 
be  secured  at  his  option,  unless  In  pursuance 
of  a  contract  to  that  effect,  nor  sell  it  with- 
out giving  notice  to  the  pledgor  of  his  inten- 
tion to  do  so,  in  order  that  be  may  have  an 
opportunity  to  redeem  it  if  he  desire.  To 
the  same  effect  is  the  late  case  of  Sproul  v. 
Sloan,  241  Pa.  284,  88  Atl.  501,  Ann.  Cas. 
1915B,  941.  In  the  present  case  it  is  not  pre- 
tended that  any  notice  whatever  was  even 
attempted  to  be  given.  We  need  not  delay  to 
consider  whether  Berberich  was  in  actual  de- 
fault on  July  27th  when  the  sales  were  made, 
with  respect  to  the  margin  that  had  been 
demanded  of  him.  It  may  be  conceded  that 
for  the  few  hours,  if  so  much,  intervening 
between  the  return  of  the  $2,000  check  and 
the  actual  sale,  he  was  technically  In  default 
What  right  did  that  circumstance  give  the 
appellee?  None  whatever  but  the  right  to 
sell  upon  notice  given.  Instead  of  giving 
such  notice,  or  attempting  to  give  It,  the  ap- 
pellee, with  the  single  purpose  of  providing 
Itself  with  additional  margin  on  a  rapidly 
declining  market,  precipitately  threw  the 
pledged  certificates  upon  the  market  and  sold 
them  as  It  would  have  sold  its  own  proper- 
ty for  which  it  was  answerable  to  none  but 
Itself.  The  fact  that  Berberich  was  lying 
dead  at  the  time  neither  Justified  nor  ex- 
cused such  precipitate  haste.  What  matters 
it  that  notice  to  Berberich  was  made  imprac- 
ticable by  his  death?  Such  circumstance, 
or  any  other  happening  that  wonld  interfere 
with  the  pledgor  observing  the  strict  re- 
quirements of  the  law,  as  said  in  the  case 
above  dted,  should  be  provided  against  by 
the  brokers  and  those  with  whom  they  deal, 
and  if  no  such  provision  be  made,  parties 
must  abide  by  the  rules  of  law.  A  i^imlliar 
rule  is  that,  when  notice  Is  required  to  be 
given,  if  the  party  to  be  served  cannot  be 
found,  a  notice  delivered  at  Ills  last  known 
place  of  residence  is  suffldsnt  So  it  might 
have  been  here,  and  .who  can  say  that  sudx 
notice,  had  it  been  given,  would  not  have  ar- 
rested the  sale?  However  this  may  be,  it 
was  the  bonnden  duty  of  the  appellee  to  give 
whatever  notice  a  reasonable  regard  for  the 
rights  of  those  in  interest  would  have  sug- 
gested. Failing  In  this,  sales  made  on  the 
27th  and  29th  of  July  must  be  held  to  have 
been  an  illegal  conversion  of  the  pledged 
property. 

[3,4]  Avoiding  in  a  way  this  material  in- 
quiry, the  learned  court  rests  its  afflrmance 
of  the  auditing  judge's  report  on  purely  equi- 
table considerations:  First,  that  it  was  the 
duty  of  the  widow,  at  least  after  she  had 
qualified  as  administratrix,  to  r^udiate  the 
transaction,  and  not  having  done  so,  she  can- 
not now  claim  that  the  sales  were  unlawful 
and  seek  to  hold  the  brokers  for  the  highest 
market  value  of  the  stocks  thereafter,  or  the 
market  price  at  the  date  of  the  trial.  The 
opinion  proceeds: 

"She  did  nothing  at  all,  and  it  would  be  in  our 
opinion  very  inequitable  to  allow  her  to  set  oft 


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against  thla  claim  damages  which  we  calculate 
would  approximate  $6,700." 

Thla  is  to  Impose  on  the  widow  and  admin- 
istratrix a  duty  which  the  law  nowhere  rec- 
ognizes. In  her  own  right  the  widow  had  no 
standing  to  Interfere;  as  the  legal  repre- 
sentative of  the  estate  of  the  pledgor  she  had 
a  perfect  right,  as  against  one  who  had  il- 
legally converted  the  property  of  the  estate, 
to  stand  quiet  until  the  latter  made  demand. 
The  wrongdoer  was  without  standing  to  com- 
pel her  to  make  election  between  a  ratifica- 
tion of  his  wrongful  act  or  a  repudiation  of 
it.  It  is  quite  enough  to  know  that  no  rati- 
fication by  her  is  alleged.  We  are  not  here 
dealing  with  a  question  arising  out  of  a  con- 
tract, but  <»>e  arising  out  of  an  illegal  trans- 
action. 

Another  consideration  advanced  by  the 
court  is  that: 

"The  widow's  conduct  was  entirely  inconsist- 
ent with  her  present  daim;  for  when  shortly 
after  her  appointment  as  administratrix  one  of 
the  claimant  s  firm  saw  her  attorney  in  refer- 
ence to  the  account  and  to  a  check  of  the  de- 
cedent's drawn  before  his  death,  but  returned 
from  the  bank  by  reason  of  bis  death,  the  attor- 
ney said  in  effect,  'It  is  up  to  you  to  protect 
yourselves.'  Naturally  the  brokers  considered 
that  this  remark  was  virtually  a  declination  to 
do  anything  to  protect  the  account  and  an  au- 
thority to  the  brokers  to  act  in  the  future  as 
they  thought  best,  and  we  entirely  agree  with 
the  auditing  judge  that  this  was  a  waiver  of  the 
notice  of  future  sales.  This  was,  moreover,  at 
tlie  time  when  the  attorney  for  the  estate  should 
have  given  tlie  brokers  notice  that  they  would 
be  held  liable  for  their  failure  to  give  notice  of 
the  prior  sales.  He  who  will  not  8i>eak  when  he 
should  shall  not  speak  when  he  would.  The  cir- 
cumstances were  such  as  to  impose  on  the  admdn- 
iatratrix  or  her  representative  the  duty  in  equity 
to  inform  the  brokers  that  they  would  be  held 
to  strict  accountability  for  what  they  had  done." 

To  the  doctrine  here  asserted  we  cannot 
agree.  Minds  may  difTer  as  to  what  might 
fairly  be  understood  from  the  remark  of  the 
counsel  to  the  appellees  when  he  was  called 
upon;  but,  aside  from  that,  it  is  of  no  con- 
Bequence  what  he  said.  In  his  capacity  aa 
counsel  mer^y  he  was  without  express  au- 


thority to  bind  the  administratrix,  or  the  es- 
tate she  represented ;  nether  had  he  any  im- 
plied authority  arising  out  of  the  relation  in 
which  he  stood.  The  subject  of  the  conversa- 
tion had  regard  to  a  fixed  right  In  property 
of  the  estate,  and  over  tliat  he  bad  no  con- 
trol whatever.  B^irthermore,  It  being  a  fixed 
right  of  the  estate — the  right  to  notice  of  a 
purpose  to  sell — It  could  only  l>e  waived  up- 
on consideration,  and  none  is  pretended.  The 
counsel  was  under  no  duty  to  speak  out  and 
caution  the  appellee  against  further  Illegal 
acts  on  their  part  In  connection  with  the 
property  of  the  estate,  or  disclose  to  them 
what  his  advice  to  the  administratrix  would 
be  with  respect  to  the  earlier  sales.  We  re- 
peat, here  is  no  room  for  the  operation  of 
equity.  Estoppel  could  not  arise.  There  is 
not  a  particle  of  evidence  that  appellees  were 
misled  to  their  hurt  by  relying  upon  the  rep- 
resentations made  by  rither  the  administra- 
trix or  her  counsel.  What  they  did  with  the 
stocks  remaining  on  their  hands  from  August 
to  November  was  Just  what  they  had  al- 
ready done  with  the  stocks  sold  in  July;  they 
sold  without  notice  and  without  any  waiver 
of  notice,  thereby  making  themselves  liable. 
"If  a  transaction  is  condemned  under  the  force 
of  legal  rales,  it  cannot  receive  a  more  favorable 
consideration  in  a  court  of  equity  on  account  of 
any  hardship  to  particular  parties."  Bispham's 
Equity  PI.  (8th  Ed.)  p.  59. 

The  case  calls  for  reversaL  With  the  data 
before  us  that  would  enable  us  to  determine 
exactly  what  amount  should  be  deducted 
from  the  claimant's  demand.  In  view  of  what 
we  have  said  as  to  the  law,  we  might  end 
the  controversy  here;  but  we  have  not  this 
data,  and  it  is  possible  that  further  testi- 
mony wlU  have  to  be  taken  to  do  exact  Jus- 
tice between  the  parties.  We  have  BUffldent- 
ly  indicated  what  we  regard  to  be  the  law 
governing  the  case,  and  in  order  that  the 
case  may  l>e  disposed  of  In  accordance  there- 
with, we  direct  a  return  of  the  record,  and 
reverse  with  a  procedendo. 

It  la  ao  ordered. 


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COOMBS  T.  FESSEKDEN 


465 


OU  Me.  804) 

COOMBS  et  al.  r.  PBSSENDBN  et  aL 

(Sninreme  Judicial  Gonrt  of  Maine.     July  10, 
1917.) 

1.  Deeds  «=»1M(1)— Deuvebt  —  Pbesukf- 

TIOIT    FROM    MANUAI.  TBAKSrEK. 

There  is  a  presumption  that  when  manual 
poBsession  of  a  deed  passed  from  a  son,  the 
crantor,  to  his  mother,  the  grantee,  both  par- 
ties intended  to  effect  an  immediate  transfer  of 
the  title  in  accordance  with  the  terms  of  the 
deed. 

[Ed.  Note. — ^For  other  cases,  see  Deeds,  Cent. 
Dig.  H  574,  575,  581-683,  834.] 

2.  Deeds  «=>208(1)— Deuvebt— Intehtion  — 

CONTBOI,  Oir  pBEStJMPTIOK— SdFFICIEXCT   OF 

Evidence. 
In  an  action  to  recover  realty,  defendants 
baaing  title  on  a  warranty  deed  from  a  son  to 
his  mother,  the  delivery  of  which  plaintiffs  de- 
nied, evidence  held  insufficient  to  overcome  the 
presumption  that,  when  manual  possession  of 
the  deed  passed  from  son  to  mother,  both  par- 
ties intended  to  transfer  title. 

[Ed.  Note. — For  other  cases,  see  Deeds,  Cent. 
Dig.  H  625,  630.] 

3.  BviDEjroE  *=9271(18)— Deliveht  of  Deed 
— Sblf-Sebvino  Decl&batioxb. 

In  an  action  to  recover  realty,  defendants 
daiming  under  a  warranty  deed  running  from 
a  son  to  bis  mother,  receipts  for  rent  of  the 
demanded  premises,  given  by  the  son  after  ex- 
ecution of  the  deed,  and  an  assignment  to  secure 
rent,  the  mother's  name  not  appearing  in  any 
of  the  papers,  and  there  being  no  evidence  that 
she  ever  saw  them,  or  knew  the  manner  in  which 
her  son  was  dealing  with  the  tenants,  were 
inadmissible  to  overcome  the  presumption  of  de- 
livery of  the  deed  arising  from  its  manual 
transfer ;_  for,  though  evidence  of  the  grantor's 
conduct  in  relation  to  the  property  conveyed  by 
bia  deed  ia  admissible  on  the  question  of  title, 
the  participation  and  knowledge  of  both  parties 
in  and  of  such  conduct  must  clearly  bppear; 
otherwise  the  evidence  is  self-serving  and  inad- 
missible. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  {  1096.] 

4.  Afpkai.  and  Ebbob  «a>1004(l)— iNBTBno- 

KXOHS— HABMIiEaS  EBBOB. 

Where  no  legal  evidence  was  introduced  to 
control  the  presumption  that  a  deed  was  deliver- 
ed to  the  mother,  the  grantee,  by  her  son,  with 
intent  to  vest  title  in  her  to  the  premises  de- 
scribed, an  instruction  that  the  only  question 
to  be  considered  was.  Did  the  parties  mean 
that  title  was  to  pass  or  not?  that  there  was  no 
question  but  that  it  was  passed  over  as  far  as  it 
went,  but  was  it  intended  to  take  effect  as  a 
conveyance,  was  misleading  and  prejudicial  to 
the  interests  of  one  claiming  under  the  grantee^ 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Brror,  Cent.  Dig.  i  4219.] 

Exceptions  from  Supreme  Judicial  Court, 
Androscoggin  Comity,  at  Law. 

Action  by  Madeline  B.  Coombs  and  oth- 
ers against  Cornelia  O.  Fessenden  and  oth- 
ers. There  was  verdict  for  plaintltCs,  and 
defoidants  except.    EJxceptlons  sustained. 

Argued  before  CORNISH,  C.  J.,  and  KING, 
BIRD,  HANSON,  PHIIjBROOE,  and  MAD- 
lOAN,  JJ. 

Oakes,  Pulsifer  k  Luddea,  of  Auburn,  for 
plaintiffs.  Ralph  W.  Crockett,  of  Lewlston, 
for  defendants. 


MADIGAN,  J.  In  a  farmer  trial  of  this 
case  the  defendants  recovered  a  verdict, 
which  was  set  aside  by  the  law  court  114 
Me.  347,  96  Atl.  242.  A  second  trial  resulted 
in  favor  of  the  plaintiffs,  and  the  matter  is 
now  before  us  on  exceptions.  1!be  plaintiffs 
assert  title  to  the  demanded  premises  as  the 
heirs  of  William  C.  Coombs,  who  received 
a  deed  of  the  same  as  the  result  of  a  parti- 
tion between  the  heirs  of  John  Coombs,  the 
father  of  William.  The  defendants'  title  Is 
based  on  a  warranty  deed,  in  common  form, 
dated  July  1,  1909,  running  from  WllUam  to 
his  mother,  Marda  Coombs,  the  delivery  of 
which  the  plaintiffs  deny,  thus  raising  the  Is- 
sue in  dispute. 

William  died  a  few  hours  after  the  moth- 
er, and  we  lack  the  benefit  of  any  light  they 
might  have  shed  on  the  controversy.  The 
attorney  who  drew  the  deed  says  he  acted 
at  WUUam's  request  A  first  draft  was  un- 
satisfactory to  the  mother,  and  a  second 
draft  meeting  with  her  approval  was  exe- 
cuted and  acknowledged  by  William,  handed 
by  the  attorney  to  William,  who  in  turn 
handed  it  to  his  mother.  After  her  death 
the  deed  was  found  In  a  trunk  In  which  the 
mother  kept  her  papers. 

[1,2]  The  decision  Id  Coombs  y.  Fessen- 
den, supra,  Is  based  on  the  refusal  of  instruc- 
tions that  the  Jury  might  find  the  attorney's 
testimony  to  be  true  and  BtlU  find  for  the 
plaintiff  on  the  question  of  legal  delivery 
of  the  deed,  provided  they  were  satisfied 
from  all  the  evidence  in  the  case  that  al- 
though the  deed  was  physically  transferred 
from  the  grantor  to  the  grantee,  nevertheless 
the  parties  did  not  intend  that  the  title  and 
ownership  of  the  property  should  immediate- 
ly pass  to  Mrs.  Coombs.  A  careful  examina- 
tion of  the  evidence  In  this  case  fails  to  over^ 
come  the  presumption  that  when  the  manual 
possession  of  this  deed  passed  from  the  son 
to  the  mother,  both  parties  Intended  to  ef- 
fect an  Immediate  transfer  of  the  title.  In 
accoirdance  with  the  terms  of  the  deed. 

In  the  absence  of  oontroUlng  evidence  of 
strong  probative  ftirce,  the  circumstances  are 
sufllclent  to  conclusively  establish  that  the 
deed  was  delivered  with  the  intention  of 
passing  the  title  to  the  premises  demanded. 

"When  the  grantor  gives  iriiysical  possession 
and  control  of  the  document  to  the  grantee, 
rither  actually  or  constructively,  or  directly 
states  that  he  delivers  the  instrument  wherever 
it  may  be,  and  so  puts  it  in  the  power  of  the 
grantee  to  take  it  or  does  both  of  these  Uiings, 
and  there  is  no  proof  of  an  intent  not  to  trans- 
fer the  title,  a  ddivery  complete  in  the  first 
instance  is  made."  Beeves  on  Real  Pn^erty,  | 
1110. 

"Where  a  deed,  with  the  regular  evidence  of 
its  execution  upon  the  face  of  it  is  found  in 
the  hands  of  the  grantee,  the  presumption  is 
that  it  has  been  duly  delivered."  Ward  et  aL  v. 
Lewis  et  al.,  4  Pick.  (Mass.)  518. 

"The  production  of  a  ixmd  by  the  obligee  from 
his  own  possession  also  tended  to  riiow  that  it 
had  been  delivered  to  him."  Valentine  v.  Wheel- 
er, 116  Mass.  478. 


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101  ATIiANTIG  RBPORTBB 


(Bte. 


"If  an  nnrecorded  deed  of  land  ia  found,  at 
the  death  of  the  grantee,  in  bis  pocket  book  in 
iiig  posaession,"  the  presumption  ia  that  it  was 
"duly  delivered  to  him."  Butrick  v.  Ulton,  141 
Mass.  93,  6  N.  E.  563. 

[3]  To  overcome  this  presoniptlon  the 
plaintiffs  introduced  several  receipts  for 
rent  of  the  demanded  premises,  given  by  Wil- 
liam after  the  execution  of  the  deed,  also  an 
assignment  to  secure  rent.  The  motlier's 
name  nowhere  appeared  in  any  of  these  pa- 
pers, and  there  was  no  evidence  that  she  erer 
saw  them  or  knew  the  manner  In  which  Wil- 
liam was  dealing  with  the  tenants.  While 
evidence  of  the  conduct  of  the  grantor  in  re- 
lation to  the  property  Is  admissible  on  ques- 
tion of  title,  the  participation  and  knowledge 
of  both  parties  must  clearly  appear.  This 
evidence  lacks  the  essential  mutuality,  and  is 
self-serving  and  consequently  inadmissible. 

"Receipts,  bills  of  parcels,  and  other  papers, 
signed  by  one  party  to  a  suit,  and  offered  by  an 
opposing  party,  are  received,  like  other  con- 
tracts, as  showing  the  declaration  or  engage- 
ments In  writing  of  the  opposing  party.  But 
they  cannot  be  received,  when  offered  by  the 
maker  of  them,  unless  there  be  proof,  that  they 
have  been  in  the  hands  or  in  some  way  connected 
with  the  opposing  party;  and  they  are  then 
received  as  exhibiting  his  assent,  or  showing 
his  connection  with  the  transaction."  Boody  v. 
McKenney,  23  Me.  517. 

"The  rule  of  law  is  well  settled  that,  after 
a  conveyance  of  real  estate,  the  declaration  of 
the  grantor  in  disparagement  of  his  grant,  made 
in  the  absence  of  the  grantee,  are  never  admissi- 
ble in  evidence  against  the  grantee."  Qhase  ▼. 
Horton,  143  Mass.  118,  9  KB.  31. 

"The  declaration  and  acts  of  a  grantor  after 
the  completion  of  a  sale  have  been  held  admis- 
sible for  the  pnrpose  of  defeating  the  title, 
which,  by  a  solemn  contract,  he  had  passed  to, 
And  perfected  in,  another."  White  t.  Chad- 
bourne,  41  Me.  149. 

"The  declarations  of  a  supposed  grantor"  are 
not  to  be  received  after  his  death  as  "evidence 
against  the  party  claiming  under  the  deed." 
BarUet  v.  Delprat,  4  Mass.  707. 

"The  rule  that  the  acts  and  declarations  of  a 
grantor,  after  he  has  divested  himself  of  the 
«8tate,  shall  not  be  admitted  to  impeach  the 
title  of  the  grantee  is  well  settled,  and  not  to  be 
departed  from."  Winchester  v.  Charter,  97 
Mass.  140. 

Defendants'  exceptions  to  the  admission  of 
this  evidence  must  therefore  be  sustained. 

As  a  basis  for  a  verdict  this  question  was 
submitted  to  the  jury: 

"Was  the  deed  of  William  C.  Coombs  dated 
July  1,  1909,  intended  by  the  parties  to  it  to 
take  effect  at  that  time  as  a  conveyance  of  the 
title  of  the  land  deacribed  in  It  by  the  delivery 
of  it  to  the  grantee?" 

With  this  question  and  as  explanatory  of 
the  issue  the  presiding  justice  In  bis  charge 
instructed  the  jury  as  follows: 

"When  it  appears  that  there  has  been  a  de- 
livery, that  is,  a  manual  delivery,  from  band 
to  band,  of  a  deed,  there  arises  a  presumption 
that  the  title  passes;  that  is,  that  the  parties 
intended  the  elfect  to  be  just  what  their  acts 
wonld  indicate.  But  it  is  not  a  conclusive  pre- 
sumption; because  deeds  are  delivered  from  par- 
ty to  party  for  various  reasons,  at  various 
times,  without  the  parties  intending  at  the  time 
to  pass  the  title.  They  may  intend  to  pass  it 
at  some  future  time,  but  not  then;  that  is,  the 
deed  is  passed  over  without  intention  on  the 
part  of  the  parties  to  it  that  it  shall  take  effect 


then  as  a  conveyance  of  the  title.  Sometimes 
a  man  may  make  a  deed,  perhaps,  and  intend 
dcliven  with  an  intention  that  it  shall  take  ef- 
fect when  he  dies,  or  on  the  happening  of  some 
condition,  or  upon  the  condition  of  payment, 
and  not  to  take  effect  otherwise,  and  delivery 
of  a  deed,  passing  from  hand  to  hand  upon 
condition,  does  not  convey  title.  It  must  be 
a  delivery  of  the  title  from  one  to  the  other  at 
the  time.  Now,  there  being  no  question  raised 
that  this  deed  was  actually  passed  from  William 
U.  Coombs,  the  sole  and  only  question  to  be  con- 
sidered is:  What  was  the  intent  of  the  parties? 
Did  they  mean  that  the  title  was  to  pass  then 
or  not?" 

And  also  the  following: 

"There  is  no  question  but  it  was  passed  over, 
as  far  as  that  goes,  but  was  it  intended  to  take 
effect  at  that  time  as  a  conveyance?" 

[4]  While  to  the  trained  legal  mind  this 
question  and  these  instructions  would  pre- 
sent no  difflculties,  we  fear  tliat  they  were 
misleading  to  the  jury,  and  therefore  preju- 
dicial to  the  Interests  of  the  defendants; 
for,  as  heretofore  observed,  no  admissible 
evidence  was  Introduced  to  control  the  pre- 
sumption that  this  deed  was  transferred  to 
the  mother  with  the  Intention  of  thereby 
vesting  In  her  the  title  to  the  demanded 
premises. 

"It  is  indispensable  to  the  delivery  of  a  deed 
that  it  shall  pass  beyond  the  control  or  dominion 
of  the  grantor.  Otherwise  it  canjiot  come  right- 
fully within  the  power  and  control  of  the  gran- 
tee. Their  interests  are  adverse,  and  both  can- 
not lawfully  have  control  over  the  deed  at  the 
same  time.  The  grantee  does  not  necessarily 
acquire  the  right  uie  moment  it  leaves  the  pos- 
session and  control  of  grantor,  but  he  cannot 
have  it  before.  Neither  can  the  grantor  transfer 
his  property  after  his  decease  by  deed,  l^e 
statute  of  wills  or  of  descent  then  govern  all 
property  not  disposed  of  during  the  hfetime  of 
the  owner.  To  be  sure  a  freehold  estate  may 
be  conveyed  to  commence  in  futuro,  when  it  is 
so  declared  in  the  deed  (Wyman  v.  Brown, 
50  Me.  1.S9),  and  the  grantor  may  reserve  full 
power  and  control  over  the  land  thus  conveyed 
during  his  natural  life  (Drown  v.  Smith,  52 
Me.  l41),  but  not  over  the  deed."  Brown  ▼. 
Brown,  66  Me.  318. 

"So  far  as  die  grantor  is  concerned,  any  acts 
or  words,  •  •  •  whereby  he  In  his  lifetime 
parts  with  all  right  of  possession  and  dominion 
over  the  instrument,  with  the  intent  that  it  shall 
take  effect  as  bia  deed  and  pass  to  the  grantee, 
constitute  a  delivery  of  a  deed  of  conveyance; 
and  that  nothing  less  will  suffice."  Brown  ▼. 
Brown,  66  Me.  81& 

A  father  assigned  certain  mortgages  to  his 
son,  with  instructions  that  In  case  he  died 
to  pnt  them  on  record  at  ooce.  The  son 
placed  them  in  a  safe  to  which  he  and  his 
father  both  had  access;  the  fattier  continu- 
ing to  collect  the  interest  on  the  mortgage 
notes.    The  conrt  says: 

"We  are  aatisfled  that  the  transfer  of  the 
property  was  not  to  take  effect,  until  after  the 
father's  death.  As  this  is  contrary  to  the  stat- 
ute of  wills,  the  assignments  are  to  be  treated 
as  nullities"  ShurtleS  v.  Francis,  118  Mass. 
154. 

"To  make  the  delivery  good  and  effectual,  the 
power  of  dominion  over  the  deed  must  be  parted 
with."    Cook  V.  Brown,  34  N.  H.  460. 

Hubbard  v.  Greeley,  84  Me.  340,  24  Atl. 
709. 17  L.  R.  A.  511,  Is  both  clear  and  exhaus- 
tive: 


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COOMBS  T.  FESSENDEN 


467 


"The  antborities  all  tigne  that  a  deed  cannot 
be  delivered  directly  to  the  grantee  himself,  or 
to  hig  agent  or  attorney,  to  be  held  as  nn  es- 
crow ;  that  if  such  a  dc^very  is  made,  the 
law  will  give  effect  to  the  deed  immediately, 
and  according  to  its  terms,  divested  of  all  oral 
conditions.  The  reason  is  obvious.  An  escrow 
is  a  deed  delivered  to  a  stranger,  to  be  delivered 
by  bim  to  the  grantee  upon  the  performance  of 
some  condition,  or  the  happening  of  some  con- 
tingency, and  the  deed  takes  effect  only  upon  the 
second  delivery.  Till  then  the  title  remains 
in  the  grantor.  And  if  the  delivery  is  in  the 
first  instance  directly  to  the  grantee,  and  he 
retains  the  poesession  of  it,  there  can  be  no 
second  delivery,  and  the  deed  must  take  effect 
on  account  of  the  first  delivery,  or  it  can  never 
take  effect  at  all.  And  if  it  takes  effect  at  all, 
it  must  be  according  to  its  written  terms. 
Oral  conditions  cannot  be  annexed  to  it.  It  will 
therefore  be  seen  that  a  delivery  to  the  grantee 
himself  is  utterly  inconsistent  with  the  idea  of 
an  escrow.  And  it  is  perfectly  well  settled  by 
all  the  authorities,  ancient  and  modern,  that  an 
attempt  to  thus  deliver  a  deed  as  an  escrow 
cannot  be  successful;  that  in  all  cases  where 
such  deliveries  are  made  the  deeds  take  effect 
immediately  and  according  to  their  termor  di- 
vested  of  all  oral  conditions.    •    •    • 

"The  law  reasonably  provides  •  •  •  that 
the  instrument  delivered  shall  be  conclusive  with 
respect  to  its  contents  and  the  intention  of  the 
parties,  and  in  the  same  manner,  and  in  view 
of  the  same  considerations,  that  the  act  of  de- 
livering the  instrument  shall  be  equally  con- 
clusive; that  the  danger  to  be  apprehended 
from  fraud  and  false  swearing,  as  well  as  from 
the  infirmity  of  human  memory,  are  as  great 
in  the  oae  case  as  in  the  other;  that  if  a  con- 
dition could  be  annexed  to  the  delivery  of  a 
deed,  when  made  to  the  obligee  himself,  or  to  his 
agent  or  attorney,  the  very  essence  of  the  trans- 
action would  be  left  to  depend  on  the  memory 
and  tnithfulnem  of  the  bystanders;  and  that 
there  is  manifest  wisdom  in  the  rule  that  In 
such  transactions  the  law  will  regard,  not  what 
is  said,  but  what  is  done." 

"It  is  easy  to  see,"  said  the  court.  In  Miller 
V.  Fletcher,  27  Grat  (Va.)  403,  21  Am.  Rep. 
856,  "that  the  most  solemn  obligations  given 
for  tbe  payment  of  money,  are  of  but  little 
value  as  secnrltles  if  tfaey  may  at  a  future 
day  be  defeated  by  parol  proof  of  conditions 
annexed  to  the  delivery  of  tbe  Instrument, 
and  never  performed,"  and  that  a  doctrine 
of  this  kind  would,  perhaps,  be  still  more 
mischievous.  If  applied  to  deeds  of  real  es- 
tate; tbat  if  snch  a  doctrine  should  prevail 
the  title  of  the  grantee  wonld  be  liable  to 
be  defeated  at  any  time  by  evidence  of  non- 
perfonned  parol  conditions  annexed  to  the 
ddlvery  of  the  deed,  and  in  such  cases  there 
would  be  no  safeguards  against  perjury  or 
tbe  mistakes  of  the  "slippery  memory,"  and 
all  titles  would  be  as  unstable  as  sands  be- 
fore the  seashore. 

Hill  V.  McNidiol.  80  Me.  20&,  13  Atl.  883, 
is  an  instance  where  the  history  of  the  deed 
and  the  conduct  of  the  parties  subsequent  to 
the  date  of  its  supposed  deliveiy  absolutely 
negative  any  intention  of  the  parties  to  de- 
liver tbe  deed  and  thereby  transfer  the  title. 
As  is  said  in  that  case: 


"An  intention  that  it  shall  be  a  delivery  must 
exist  in  tbe  minds  of  both  parties." 

One  Abner  Hill  was  conducting,  with  his. 
SODS,  a  large  business.  In  1860  and  1S61  he 
executed  a  deed  of  certain  property  to  one  of 
bis  sons,  Monroe  Hill,  who  in  1862  executed  a 
deed  of  the  same  premises  to  bis  mother, 
Elizabeth  Hill.  The  latter  deed  was  never 
seen  or  heard  of  until  within  a  few  days  after 
Monroe  Hill  died  when  It  was  taken  from  a 
drawer  in  a  bureau  at  the  Hill  house,  where 
Monroe  lived  with  his  parents,  and  hurriedly 
sent  by  special  messenger  to  the  registry  of 
deeds.  It  appears  that  both  Abner  and  Mon- 
roe HIU  kept  papers  and  transacted  some 
business  in  this  house.  There  was  no  evi- 
dence In  the  case  of  any  previous  possessioa 
of  the  deed  by  Mrs.  Hill  more  than  a  pre- 
sumption arising  from  her  possession  at  the 
time  she  sent  the  same  for  record  in  1867. 
The  evfdence  In  this  case  of  Mrs.  Hill's  con- 
nection with  this  property,  subsequent  to- 
transferring  the  deed  from  Monroe  to  her,  of 
conveyances  In  which  she  Joined  subsequent 
to  the  date  of  such  deed,  which  are  absolutely 
inconsistent  with  any  claim  of  title  by  her, 
was  BO  strong  that  It  was  considered  by  the 
Jury  and  the  court  as  absolutely  disproving 
any  Intention  of  the  parties  to  pass  any  title 
from  Monroe  to  his  mother  by  the  deed,  nn- 
der  which  she  asserted  title.  The  question 
of  intention,  which  is  the  essential  element 
of  a  valid  effectual  delivery,  is  a  matter  of 
evidence,  and  In  Hill  v.  McNlchol  the  evi- 
dence absolutely  disproved  any  such  inten- 
tion. 

In  this  case,  however,  as  already  stated, 
we  find  no  evidence  to  show  that  both  grantor 
and  grantee  did  not  intend  an  effectual  valid 
'delivery  of  the  deed  from  tbe  son  to  tbe  moth- 
er. The  testimony  of  the  attorney  clearly 
shows  it.  Tbe  deed  was  found  In  her  papers,, 
and  there  is  no  admissible  evidence  in  the 
case  to  disprove  It  WhUe  a  deed  might  pass 
from  the  manual  possession  of  the  grantor 
to  that  of  tbe  grantee  for  some  temporary 
purposes,  such  as  examination  or  as  the  basis 
for  survey,  or  a  legal  opinion  as  to  tbe  title, 
there  is  in  such  cases  no  intention  of  delivery 
for  the  purpose  of  passing  title,  and  neither 
party  could  claim  a  delivery.  In  this  case, 
however,  there  is  no  such  evidence,  and  there 
Is  no  evidence  to  rebut  the  presumption  aris- 
ing from  the  mother's  possession  or  to  dis- 
prove the  testimony  of  tbe  attorney  who  wit- 
nesses the  execution  and  delivery  of  the  in- 
strument. As  we  feel  tbe  question  submitted 
and  tbe  instructions  tended  to  cloud  the  real 
issue  in  the  minds  of  the  Jury  and  to  divert 
their  attention  from  the  salient  points  of  the 
evidence  and  the  law  applicable  to  tbe  case, 
the  defendants'  exceptions  must  be  sustained.. 
We  do  not  feel  it  necessary  to  discuss  the  re^ 
mainlng  exceptions. 

Exceptions  sustained. 


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101  ATLANTIC  REPOETEE 


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(US  Me. 


299) 
FARNHAM 


T.  CLIFFORD. 


(Supreme  Judicial  Ck>art  of  Maine.     Joly  28, 
1917.) 

1.  Masteb  and  Sebvawt  «=>330(3)— Evidence 
OF  Relation— Sufficiency. 

In  an  action  for  pergonal  injuriea  alleged  to 
have  been  sustained  by  plaintiff  in  a  collision 
with  defendant's  automobile,  evidence  held  to 
warrant  finding  that  defendant's  son  was  em- 
ployed in  his  father's  business  while  driving  the 
automobile  at  the  time  of  the  accident. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  {  1272.] 

2.  Evidence  <S=3265(10)  —  Admissions 
Against  Interest  —  Failttbe  to  Contra- 
dict. 

Where,  after  evidence  as  to  defendant's  ad- 
mission of  his  liability,  he  took  the  stand  and 
did  not  contradict  or  explain  the  testimony,  the 
jury  was  authorized  to  find  that  he  knowingly 
made  the  admission  and  that  it  was  true. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  f  1038.] 

8.  Appeal  and  Ebbob  9s»1002— Findings  of 

JoBT— Review. 
Where  the  testimony  as  to  the  permanency 
of  the  injuries  was  evenly  balanced,  it  was  a 
question  for  the  jury  as  to  the  weight  to  be  giv- 
en such  testimony,  and  the  appellate  court  will 
not  review  their  findings. 

[Eld.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent.  Dig.  {§  3935-3937.] 

Exceptions  from  Supreme  Judicial  Court, 
Androscoggin  Ck)unty,  at  Law. 

Action  by  Anna  R.  Fambam  against  John 
D.  Clifford.  There  was  a  verdict  for  plain- 
tiff, and  the  case  Is  before  this  court  on  a 
motion  for  a  new  trial  and  upon  exceptions. 
Motion  and  exceptions  overruled. 

Argued  before  SAVAGE,  G.  J.,  and  C»R- 
NISH,  KING,  BIRD,  HALEX,  and  MADI- 
OAN,  JJ. 

McGillicuddy  &  Morey,  of  Lewlston,  for 
plaintiff.  Andrews  &  Nelson,  of  Augusta,  for 
defendant. 

BALET,  J.  An  action  os  tbe  case  for  per- 
sonal Injuries  alleged  to  hare  been  sustained 
by  the  plaintiff  June  13,  1914,  as  a  result  of 
a  collision  of  the  carriage  in  which  she  was 
riding  with  the  automobile  of  the  defendant 
The  case  was  tried  at  the  September  term, 
1916,  in  Androscoggin  county,  and  the  Jury 
returned  a  verdict  for  the  plaintiff  for  the 
sum  of  $3,747.69,  and  the  case  Is  before  this 
court  upon  a  motion  for  a  new  trial  and  up- 
on exceptions. 

At  the  time  of  the  accident  the  defendant 
was  llTlng  in  the  dty  of  Lewlston.  The 
family  consisted  of  himself  and  wife,  two 
boys  and  two  girls,  the  sons  being  more  than 
21  years  of  age  and  practicing  lawyers  in  the 
city  of  Lewlston.  The  defendant  was  the 
owner  of  an  automobile,  which  he  had  pur- 
chased for  the  plea.sure  of  himself  and  family 
and  which  the  family  had  permission  to  talce 
and  use  whenever  they  so  desired.  On  the 
evening  of  the  accident  the  defendant  was 
not  In  town,  and  on  that  evening  one  of  his  I 


sons,  who  was  living  with  him  as  a  member 
of  his  family,  took  the  car,  without  any  ex- 
press permission  as  far  as  positive  testimony 
goes,  and  while  operating  the  automobile  did 
it  so  negligently  that  it  collided  with  a  team 
in  which  the  plaintiff  was  riding,  about  three 
miles  out  of  Lewlston  on  the  road  to  New 
Glouce.ster.  As  a  result  of  that  collision,  the 
plaintiff  was  injured,  and  brings  this  action 
against  the  defendant 

It  is  the  contention  of  the  attorney  for  the 
defense  that  there  Is  no  evidence  whatever 
that  John  D.  Clifford,  Jr.,  the  son  who  was 
driving  the  automobile  at  the  time  of  the 
accident,  had  ever  acted  as  chauffeur  for 
his  father,  or  had  ever  driven  for  any  other 
member  of  his  father's  family,  and  that  there 
is  an  entire  lack  of  evidence  as  to  whether 
he  was  out  on  business  or  pleasure  the  night 
of  the  accident  The  motion  and  exceptions 
practically  go  to  the  same  proposition,  that 
there  is  no  evidence  in  the  case  that  the  son 
was  employed  In  his  father's  business  while 
driving  the  machine  at  the  time  of  the  ac- 
cident; that  It  was  for  bis  sole  pleasure; 
that  the  relation  of  master  and  servant  did 
not  exist;  that  such  relation  cannot  be  In- 
ferred  from  the  ownership  of  the  car;  and 
that,  although  it  may  have  been  the  business 
of  the  father  to  furnish  an  automobile  for 
the  use  of  bis  family,  yet  there  is  no  evi- 
dence in  the  case  that  the  son  was  so  iising 
It,  or  for  what  purpose  he  was  using  It ;  that 
It  does  not  appear  sufficiently  that  be  was 
performing  the  business  of  his  father,  or 
that  the  relation  of  master  and  servant 
existed.  The  defendant  testified  that  the  son 
did  not  own  the  auto,  and  never  did ;  that  he 
himself  was  In  absolute  control  of  the  ma- 
chine; that  nobody  else  had  the  control; 
that  its  control  never  passed  from  him ;  that 
he  bougbt  the  machine  for  the  pleasure  of 
himself  and  family;  that  John  D.,  Jr.,  the 
son,  had  the  right  to  take  the  machine  out 
on  any  pleasure  ride  that  be  might  wish; 
that  he  did  not  have  to  ask  iwrmission ;  that 
he  bought  It  for  the  family's  pleasure  to  take 
it  when  they  liked,  and  he  could  take  the  ma- 
chine that  nigbt  Just  as  he  had  always 
taken  it,  without  asking;  and  that,  aside 
from  the  ownership  of  the  machine,  John  had 
the  right  to  the  use  of  it  just  as  he  pleased. 

[1,2]  If  the  evidence  stopped  there.  It  may 
be  that  the  position  of  the  defendant's  coun- 
sel would  be  sustained ;  but  there  was  In  the 
case  evidence  that  authorized  the  juiy  to 
find  that,  at  the  time  the  defendant's  son 
was  using  the  machine,  he  was  either  doing 
it  as  the  agent  or  servant  of  the  father,  or 
n<!ing  it  in  the  defendant's  business,  for  the 
defendant  told  the  husband  of  the  plolntUT 
"that  bis  car  he  bad  bought  for  the  pleasure 
of  his  family  and  for  business;  that  they  bad 
a  right  to  take  It  whenever  they  saw  fit  with- 
out asking,"  and  he  furthermore  told  blm 
"so  far  as  the  liability  extended  he  was  re- 
sponsible."   That  was  a  direct  admission  of 


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liEMBO  V.  DONNEIiL 


469 


facts  essential  to  estaUlsh  Ms  legal  liabili- 
ty, and,  if  the  defendant's  position  Is  sound, 
then  tbat  admission  covered  the  sltnation 
which  defendant's  counsel  vtrges  was  neces- 
sary to  exist  for  defendant  to  be  charged. 
After  the  aeddent,  with  full  knowledge  of  the 
facts,  he  admitted  his  liability.  Upon  the 
stand  he  did  not  deny  he  so  admitted;  but 
leaves  it  for  his  coxjnsel  to  argue,  wilhout  ex- 
planation, why  the  admission  was  not  true. 
The  admission  of  the  defendant  was  open  to 
explanation  and  contradiction.  It  was  sub- 
ject to  rebuttal,  explanation,  and  comment, 
and  the  fact  that  the  defendant  was  a  wit- 
ness In  his  own  behalf,  after  the  testimony 
had  been  given  as  to  his  admission  of  his  lia- 
bility, and  did  not  contradict  or  explain  the 
statement,  but  allowed  it  to  pass  as  true  and 
unchallenged,  authorized  the  Jury  to  find 
that  he  knowingly  made  the  admission,  and 
that  his  admission  was  true.  As  stated  in 
Robinson  v.  Stuart,  68  Me.  on  page  62: 

"The  statement  and  admissions  of  Southard, 
aa  testified  to  by  the  plaintiff,  not  bavinc  been 
denied  or  in  any  way  modified,  moat  be  taken 
as  tme." 

The  defendant  having  admitted  bis  liabil- 
ity, and  when  a  witness  in  his  own  behalf 
not  having  explained  or  modified  his  admis- 
sion, it  is  useless  to  discuss  the  rights  of  the 
parties  upon  the  theory  that  facts  existed 
that  the  defendant,  by  his  admission,  shows 
did  not  exist 

[S]  The  motion  also  asks  that  the  verdict 
be  set  aside  t>ecau8e  the  damages  avi^arded 
by  the  Jury  are  excessive.  There  is  no  ques- 
tion but  that  the  plalntifF  was  severely  in- 
ured by  reason  of  the  accident,  and  that  she 
'wae  taken  to  a  hotel  and  remained  there 
aome  three  weeks,  and  that  she  has  been  un- 
der medical  treatment  ever  since.  There  is 
a  dispute  as  to  the  nature  of  her  injuries  and 
•whether  she  will  ever  recover  or  not ;  but 
tbere  is  no  question  but  that  she  was  injur- 
ed as  dalmed,  and  that  stie  had  not  recov- 
ered at  the  time  of  the  trial.  The  plaintifT 
produces  three  eminently  respectable  physi- 
cians, including  the  physician  who  treated 
ber  from  the  time  of  the  injury  to  the  time 
of  the  trial,  who  have  made  examinations, 
and  they  all  give  an  opinion  which.  If  believ- 
ed, authorized  the  Jury  to  find  that  the  wo- 
man received  injuries  from  which  she  will 
never  recover.  Upon  the  other  hand,  the  de^ 
fense  produce  three  eminently  respectable 
physicians  who  admit  that,  at  the  time  of 
tbe  trial,  the  plalntlfC  was  suffering  from  the 
apparent  effects  of  the  injury  received  at  the 
time  of  the  accident;  but  they  gave  it  as 
tbelr  opinion  that  she  is  not  suffering  from 
tbe  same  injury  that  the  physicians  for  the 
plaintiff  give  their  opinion  she  is  suffering 
from,  and  that  she  will  in  a  short  time  prob- 
ably recover  from  the  effects  of  the  injury. 

The  physical  condition  of  the  plaintiff  was 
one  of  tbe  issues  submitted  to  the  Jury,  and 
«re  have  no  right  to  say  that  the  testimony 


of  the  three  physicians  upon  one  side  or  the 
other  should  be  weighed  differently  than  the 
Jury  found  it.  They  were  authorized  to  find 
that  the  testimony  of  the  physicians  for  the 
plaintiff  outweighed  the  testimony  of  those 
for  the  defendant;  and  if,  in  their  opinion, 
the  testimony  of  the  defendant's  physicians 
outweighed  the  testimony  of  the  physicians 
of  the  plaintiff,  they  bad  the  right  to  so  find. 
But,  with  tbe  testimony  so  evenly  balanced 
upon  the  question  of  the  permanency  of  the 
injuries,  it  was  a  question  for  the  Jury  as  to 
the  w^ht  to  be  given  the  testimony,  and  we 
have  no  right,  under  the  circumstances,  to 
disturb  their  finding  and  the  mandate  must 
be: 
Motion  and  excepttona  overruled. 

(US  He.  SOS) 

LEMBO  V.  DONNELL. 

(Supreme  Judicial  Court  of  Maine.     Aug.  1, 
1917.) 

ABOBTION  «=>16  —  ClVH,  LlABIUTT  —  EiXCEB- 
8IVB   DAUAOEa 

Plaintiff  broui^t  an  action  for  damages  for 
an  illegal  operation  performed  by  defendant  up- 
on plaintiff's  wife  to  produce  a  miscarriage. 
The  wife  became  infected  with  blood  poisoning 
as  a  result  of  the  operation,  and  became  desper- 
ately ill,  remaining  in  the  hospital  seven  weeks, 
durmg  which  time  ten  operatioDs  were  perform- 
ed. She  had  recovered  only  in  part  at  the  time 
of  the  trial  about  six  months  alter  she  left  the 
hospitaL  There  was  evidence  from  which  the 
jury  might  have  found  that  plaintiff's  actual 
disbursements  and  liabilities  necessari^  incur- 
red amounted  to  substantially  $600.  Beld,  on 
motion  for  new  trial,  that  a  verdict  of  1881.58 
could  not  be  regarded  as  excessive. 

On  Moticm  from  Supreme  Judicial  Oonrt, 
Androscoggin  County,  at  Law. 

Action  by  Emilio  K.  Lembo  against  Charles 
K.  Donnell.  The  Jury  returned  a  verdict  for 
plaintiff,  and  the  case  is  now  before  the  law 
court  upon  a  motion  by  defendant  for  a  new 
trial.     Motion  overruled. 

Argued  before  CORNISH,  0.  J.,  and 
SPEAR,  KING,  BIRD,  HANSON,  and  MADI- 
GAN,  JJ. 

Newell  &  Woodslde,  of  Lewlston,  for  plain- 
tiff. Taacua  Atwood,  of  Auburn,  for  de- 
fendant. 

PER  CURIAM.  Action  on  the  case,  where- 
in it  is  alleged  that  the  defendant  performed 
an  illegal  operation  on  the  plaintiff's  vriie 
to  produce  a  miscarriage,  and  thereafter  neg- 
ligently and  unskillfully  treated  her,  where- 
by the  plaintiff  was  put  to  large  exi)ense  for 
nursing,  medicine,  and  medical  attendance 
for  her,  and  was  deprived  of  her  companion- 
ship and  services  for  a  long  space  of  time. 
Upon  trial  tbe  Jury  returned  a  verdict  of 
$881.58  for  the  plaintiff,  and  the  case  is  now 
before  the  law  court  upon  a  motion  by  the  de- 
fendant for  a  new  trial,  based  upon  the  alle- 
gations that  the  verdict  is  against  the  weight 
of  the  evidence  and  that  the  damages  award- 
ed are  excessive. 


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101  ATIANTIO  RBPORTEK 


(Me. 


We  have  examined  and  studied  the  evi- 
dence with  care,  and  we  are  by  no  means 
satisfled  that  the  finding  of  the  Jury  in  the 
plaintiff's  favor  was  erroneons.  Whether 
they  found  against  the  defendant  upon  both, 
or  only  upon  one,  of  the  allegations  upon 
which  the  action  Is  based  this  court  cannot 
now  determine;  but  that  Is  Immaterial,  for 
we  think  the  evidence  Is  abundantly  sufficient 
to  Justify  the  Jury  In  finding  that  both  of 
those  allegations  were  established. 

Neither  Is  It  made  to  appear  to  the  oonrt 
that  the  damages  awarded  are  excessive 
The  plaintiff's  wife  became  Infected  with 
blood  poisoning  as  a  result  of  the  criminal 
operation  on  her.  The  defendant  attended 
her  for  about  four  weeks  following  the  opera- 
tion. Under  his  treatment  she  became  des- 
perately 111,  and  as  soon  as  another  physician 
was  called  she  was  removed  to  a  hospital, 
where  her  case  was  diagnosed  as  almost  hope- 
less. She  remained  In  the  hospital  seven 
weeks,  during  which  time  ten  operations  were 
performed  to  remove  pus  from  different  parts 
of  her  body.  She  had  recovered  only  tn  part 
at  the  time  of  the  trial,  about  six  months 
after  she  left  the  hospital.  The  evidence 
shows  that  the  plaintiff  was  put  to  large  ex- 
penses for  nursing,  medicine,  and  medical 
and  surgical  services  in  an  effort  to  save 
his  wife's  Ufe  and  to  restore  her  to  health  as 
much  as  possible.  The  Jury  may  well  have 
found  from  the  evidence  that  his  actual  dis- 
bursements and  liabilities  necessarily  incur- 
red on  that  account  amounted  to  substantially 
$600.  In  view  of  that  fact,  and  also  that  the 
plaintiff  was  deprived  of  the  services  of  his 
wife  for  a  long  space  of  time,  and  that  be 
suffered  great  anxiety  and  distress  of  mind 
on  account  of  her  serious  illness,  an  award 
of  $881.58  damages  In  his  favor  cannot  be  re- 
garded as  excessive. 

Motion  overruled. 

Judgment  on  the  verdict. 


(lie  M*.  G04) 

SPOFFOBD  V, 


BIOCFORD. 


(Supreme  Judicial  CJourt  of  Maine.    Aug.  1, 
1917.) 

Nsw  Tbiai.  4=>71— Confuotiko  E>vidki«ce. 

There  being  a  mere  issae  of  fact  and  con- 
ffictinK  evidence,  and  the  Jury  not  manifestly 
erring  in  deciding  auch  issue,  new  trial  wiU 
not  be  granted. 

[Bd.  Note.— For  other  caaea,  see  New  Trial, 
Gent.  Dig.  i§  144,  145.] 

Om  Motion  from  Supreme  Judicial  Court, 
Androscoggin  (Jounty,  at  Law. 
Action  by  Isaac  N.  Spofford  against  Hor- 


ace Blckford.  Verdict  for  defendant,  and 
plaintiff  moves  in  the  law  court  for  new 
trial.    Motion  overruled. 

Argued  before  CORNISH,  C.  J.,  and 
SPEAR,  KING,  BIRD,  HANSON,  and  MADI- 
GAN,  JJ. 

Newell  &  Woodside,  of  Lewlston,  for  plain- 
tiff.    McGlIUcuddy  &  Morey,  of  Lewlston, 

for  defendant. 

PEJR  CnjRIAM.  Action  of  replevin  for  a 
black  horse.  The  verdict  was  for  the  de- 
fendant, and  the  case  comes  before  the  law 
court  upon  the  plaintiff's  motion  for  a  new 
trial. 

It  is  imdlsputed  that  the  defcindant  pur- 
chased the  horse  In  question  of  the  plaintiff 
and  fully  paid  for  It  Thereafter  he  told  the 
plaintiff  that  the  horse  was  too  young  or 
too  quick,  and  the  parties  then  made  some 
arrangement  whereby  the  defendant  left  the 
black  horse  with  the  plaintiff  and  took  from 
him  a  sorrel  horse.  A  few  days  later  the  de- 
fendant returned  to  the  plaintiff  the  sorrel 
horse  and  took  the  black  horse  home.  Tbe 
plaintiff's  claim  at  the  trial  was  that  the  de- 
fendant resold  the  blade  horse  to  him  In  ex- 
change for  the  sorrel  horse.  He  testified  that 
when  the  sorrel  horse  was  driven  beck  to  bis 
place  by  the  defendant,  a  few  days  after  thci 
exchange,  it  was  too  sick  to  be  driven,  and 
that  It  was  left  In  his  stable  tot  that  reason, 
the  defendant  borrowing  the  black  horse  to 
drive  home  with.  The  sorrel  horse  did  not 
recover  from  that  sic^ess,  but  dlM  In  a  few 
days  at  the  plalntUTs  stable. 

On  the  other  hand,  the  defendant  contend- 
ed that  the  atrangement  betwe^i  him  and 
the  plaintiff  was  that  he  should  take  tbe 
sorrel  horse  on  trial  for  a  few  days,  and  it 
It  satisfied  him  he  was  to  keep  It  In  place 
of  the  black  borse;  that  upon  trial  the  sor- 
rel horse  proved  wholly  unsatisfactory,  and 
he  returned  It  to  the  plaintiff  and  took  his 
black  horse)  home. 

The  issue  In  the  case  was  one  of  tact, 
whether  the  d^endant  resold  the  black  horse 
to  the  plaintiff  in  exchange  for  the  sorrel 
horse.  Upon  tliat  Issue  the  testimony  was 
conflicting.  It  will  serve  no  useful  purpose 
to  restate  it  here.  If  the  Jury  accepted  the 
testimony  of  the  defendant  and  his  witnesses, 
the  verdict  was  Justified.  An  examination  of 
the  evidence  does  not  convince  the  court  that 
the  Jury  manifestly  erred  In  deciding  the 
Issue  of  fact  involved  between  the  parties  In 
the  defendant's  favor,  and  accordingly  the 
motion  for  a  new  trial  must  be  overruled. 

So  ordered. 


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UEDOTF  y.  FISHER 


471 


<]8r  Pm.  UO  

MSDOBT  T.  STSHBB  et  aL 

<SupTeme  Conrt  of  Pennsylvania.     March  12, 
1917.) 

1.  OONTBACTS   «=»105— BorLDIWO   CONTRACT— 

Abcbitect  —  Knowisdob  or  Statutobt 

RXGULATIORB. 

Plaintiff  holding  himself  out  as  an  architect 
•waa  particularly  charged  with  knowledge  of 
the  statutory  regulations  and  restrictions  gov- 
erning the  erection  and  use  of  buildings. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  $!  477,  478,  480-497.] 

2.  CONIBACTB  <S=>106  —  IlXEOALlTT  —  BKCOV- 
KBT. 

An  architect,  suing  for  services  in  the  prepa- 
ration of  plana  and  specifications  for  a  build- 
ing under  a  contract  with  defendants,  which 
building  was  to  contain  a  motion  picture  theater 
and  also  dwellings,  bathhouse  in  cellar,  and 
stores,  in  violation  of  Act  Juno  9,  1911  (P.  t>. 
746),  regulating  the  construction  of  buildings 
tised  for  exhibition  of  moving  pictures,  was  a 
party  to  an  agreement  to  do  an  unlawful  act, 
and  could  not  recover. 

[Hid.  Note.— For  other  cases,  see  Contracts, 
Ont  Dig.  IS  477,  478,  480-497.] 

Api)eal  from  Court  of  Common  Pleas,  Phll- 
adelpbla  County. 

Assumpsit  by  Barnet  J.  Medoff,  doing  bnsl- 
ness  as  Medoff  &  Son,  against  Joseph  Flsh- 
«r  and  others  for  services  rendered  by  plain- 
tiff as  an  architect.  Verdict  for  plaintiff  for 
$2,247,  and  judgment  tbereon,  and  defendants 
appeaL    Reversed. 

Argued  before  BEOWN,  O.  J.,  and  POT- 
TER, MOSCHZISKER,  FBAZEB,  and  WAL- 
MNG,  JJ. 

Julius  C.  Le-vl,  of  Pblladelphia,  tor  appel- 
lants. Bernard  Pockrass  and  Harry  A.  Mack- 
ey,  both  of  Philadelphia,  for  appellee. 

MOSCHZISKER,  J.  The  plaintltr,  an  ar- 
-<diltect,  sued  to  recover  for  professional  serv- 
ices ;  he  secured  a  verdict,  upon  which  Judg- 
ment was  entered;  tlie  defendants  have  aiH 
pealed. 

In  his  statement  of  claim,  the  plaintiff 
avers  that  he  was  employed  by  defendants 
"to  prepare  and  draw  up  plans  and  specifl- 
caUons  and  to  supervise  the  operations  of 
a  building  which  the  defendants  were  about 
to  erect";  that  "said  building  was  to  con- 
tain a  moving  picture  theater,  Russian  and 
Turkish  baths,  stores  and  dwellings";  fur- 
ther, that  he  had  performed  the  services  of 
hla  employment  as  far  as  he  could,  but,  aft- 
er securing  bids  from  various  contractors, 
the  defendants  had  refused  to  proceed  with 
the  construction  of  the  building;  finally, 
plaintiff  claimed  a  fixed  amount  for  commis- 
sions upon  what  he  alleged  to  be  an  agreed 
basis,  less  an  admitted  payment  on  account. 

The  defendants  relied  upon  several  de- 
fenses, only  one  of  which  need  here  be  con- 
sidered. In  the  course  of  the  trial,  when 
another  architect,  called  as  an  expert  wit- 
nem  by  the  defendants,  was  upon  the  stand, 
the  conrt  would  not  permit  blm  to  explain 
that  the  plans  in  qnestlon  contravened  the 


law,  hence,  could  not  be  used,  and  therefore 
were  of  no  monetary  value.  Counsd  tat 
the  plaintiff  objected  to  the  offer  upon  the 
ground  that,  whether  or  not  the  plans  were 
within  the  law  had  "nothing  to  do  with  the 
case,"  since  bis  client  "contracted  to  do 
what  defendants  wanted."  Although  this 
particular  testimony  was  ruled  out,  yet  all 
the  evidence  in  the  case  shows  that  the 
various  parts  of  the  structure  which  defend- 
ants contemplated  erecting  were  so  connect- 
ed as,  within  the  meaning  of  the  law,  to  con- 
stitute a  single  building,  containing  a  moving 
plctnre  theater  and  several  stores  and  dwell- 
ings, the  basement  under  all  to  be  fitted  for 
and  occupied  as  a  public  bathhouse. 

The  act  of  June  9,  1911,  P.  L.  748,  "to  reg- 
ulate the  construction,  maintenance,  and  in- 
spection of  buildings  used  for  the  exhibition 
of  moving  pictures,  in  all  cities  of  the  first 
class,"  provides,  inter  alia,  by  section  3, 
that    "no   such   building   hereafter    erected 

*  •  *  with  a  seating  capacity  of  five  hun- 
dred or  less,  and  no  portion  of  any  such 
building,  shall  be  occupied  or  used  as  a 
dwelling  or  tenement  house,  apartment 
house,  hotel,  or  department  store;"  further 
that  "such  restriction  shall  relate  and  be  ap- 
plicable, not  only  to  the  portion  containing 
the  auditorium,  but  also  to  the  entire  struc- 
ture or  building  used  for  moving  picture 
exhibitions,  or  In  connection  therewith;"  by 
section  4,  that  "no  such  building  •  •  • 
for  the  exhibition  of  moving  pictures,  with 
a  seating  capacity  of  over  five  hundred,  and 
no  portion  of  any  such  building,  shall  be 
used  for  any  other  purpose;"  and,  by  sec- 
tion  8,   "any  person   or   persons   who  shall 

•  •  •  violate  any  of  the  provisions  here- 
of, shall  be  guilty  of  a  misdemeanor,"  pun- 
ishable by  flue  or  imprisonment 

On  the  element  of  seating  capacity,  there 
is  some  evidence,  though  not  very  definite, 
that  the  auditorium  in  this  case  was  to  have 
"not  more  than  500  seats" ;  but,  even  at  that, 
the  building,  as  planned,  would  clearly  have 
contravened  the  plain  terms  of  the  statute. 
Had  the  structure  been  erected  and  put  to 
the  uses  Intended,  the  owners  would  have 
been  guilty  of  a  misdemeanor. 

[1, 2]  This  being  the  case,  what  Is  the  sit- 
uation of  the  plaintiff?  The  principle  that, 
since  one  may  change  his  mind  before  the 
actual  perpetration  of  a  forbidden  act,  the 
mere  intention  to  commit  a  wrong  is  no  of- 
fense has  no  proper  application  under  the 
circumstances  at  bar;  for  even  though,  attn 
er  an  erection  of  this  building,  the  defend- 
ants might  not  have  put  it  to  any  forbidden 
use,  yet  that  fact  does  not  change  the  status 
of  the  case  so  far  as  the  plaintiff  is  con- 
cerned. The  latter's  position,  therefore.  Is 
simply  this:  All  men  are  supposed  to  know 
the  law,  and,  further,  one  holding  himself 
out  as  an  architect  is  particularly  charged 
with  knowledge  of  the  statutory  regulations 
and  restrictions  governing  the  erection  and 


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101  ATIANTIO  REPORTER 


(Pn. 


ase  of  bufldlngs:  therefore  we  must  assume 
both  the  plaiutlfF  and  defendants  knew  that 
the  uses  to  which  the  latter  contemplated 
putting  the  proposed  structure  were  forbid- 
den under  a  criminal  penalty  by  the  statutes 
of  Pennsylvania.  Thus,  it  may  be  seen,  we 
have  the  plain  case  of  three  men,  the  defend- 
ants, intending  to  do  a  forbidden  thing,  em- 
ploying a  fourth,  the  plaintiff,  to  assist 
them  in  making  plans  to  carry  out  their  un- 
lawful purpose — ^in  other  words,  a  combina- 
tion which  could  be  indicted  as  a  criminal 
conspiracy.  Of  course,  no  contracts  or  en- 
gagements entered  into  under  such  circum- 
stances win  be  enforced  at  law. 

The  plaintiff  showed  this  unlawful  com- 
bination In  making  out  his  case,  and,  in 
fact,  it  would  have  been  impossible  for  blm 
to  avoid  doing  so;  hence  the  law  wlU  leave 
him  just  where  It  finds  him,  and  tbe  court 
below  should  have  so  ruled.  As  already  in- 
dicated, the  plaintiff's  objection  to  defend- 
ants' offer  of  testimony  shedding,  or  tending 
to  shed,  further  light  upon  the  issue  under 
consideration  was  based  upon  a  theory  of 
law  which  should  not  have  been  sustained; 
but  since  the  case  falls  without  regard  to 
tills  rejected  testimony,  It  is  necessary  to 
pass  upon  only  the  seventh  assignment  of 
error,  which  complains  of  the  trial  judge's 
refusal  to  give  binding  instructions  for  the 
defendants. 

The  assignment  last  referred  to  Is  sustain- 
ed, and  the  judgment  is  reversed. 


(2&7  Pa.  172) 
CITT  OF  PHITiADELPHIA  v.  CONWAY. 

(Supreme  Court  of  Pennsylvania.     March  19, 
ldl7.) 

1.  MUHIOIPAX  COBPOBATIONS  «=33429  —  OpEN- 
INO   OF  STBEETS— ASBEBSUKNT  BENEFITS. 

Where  property  lies  at  the  comer  of  un- 
opened intersecting  streets,  benefits  may  be 
separately  assessed  for  tbe  opening  of  tlie 
street  upon  which  but  a  small  part  of  the  prop- 
erty abuts,  if  the  entire  property  is  benefited  by 
the  improvement. 

[Ed.  Note. — For  other  cases,   see  Municipal 
Corporations,  Cent  Dig.  f  1038.] 

2.  Municipal  Cobpobationb  «=>429— Open- 
ing OF  STBESI  —  ASSESBUENT  —  ASnTTINe 
OWNEB. 

An  ordinance  for  tbe  opening  of  F.  street 
from  the  north  to  W.  street  and  for  the  opening 
of  W.  street  from  F.  street  to  another  street 
provided  for  tbe  opening  of  F.  street  to  the 
south  side  of  W.  street,  so  that  property  run- 
ning to  the  middle  of  W.  street  abutted  on  F. 
street  as  opened  for  half  the  width  of  W.  street, 
and  was  properly  assessed  for  benefits. 

[Ed.   Note.— For  other   cases,   see  Municipal 
Corporations,  Cent.  Dig.  {  1039.] 

8.  Tbiai.  «s9252(1)  —  iNSTBUcnoHS  —  Ab- 

STBAOT. 

The  court  properly  refused  to  charge  that 
benefits  from  a  street  opening,  if  allowed,  should 
be  restricted  to  such  charges  as  are  peculiar 
to  an  abutting  owner,  and  did  not  include  those 
common  to  the  public;  such  instruction  being 
abstract  and  inadequate. 

[Ed.  Note. — For  other  cases,  see  Trial,  Cent. 
Dig.  IS  596,  612.] 


4.  Municipal  Cobpobationb  «=»428— Pdbuc 
Ikpboveuentb— Assebshbnt  of  Benefits. 

A  general  advance  in  value  in  the  neighbor- 
hood is  no  ground  for  assessing  benefits  if  the 
property  does  not  border  on  the  improvements. 
[Ed.   Note.— For  other   cases,    see  Municipal 
Corporations,  Cent  Dig.  {$  1038,  1043.] 

5.  Municipal  Coepobations  €=>467— Public 
ilfprovementb  —  assessment  of  benefits. 

Where  property  adjoins  the  improvement 
and  becomes  subject  to  assessment  for  benefits, 
the  rule  in  estimating  damages  and  l>encfits  is 
the  difference  in  tbe  market  value  as  a  whole 
before  and  after  the  improvement. 

[EA.   Note — For   other   cases,   see  Municipal 
Corporations,  Cent.  Dig.  $1  1110,  1111.] 

6.  Municipal  Cobpobations  «=>554— Stbeet 
Opening — Assessment  of  Benefits. 

In  a  proceeding  for  the  determination  of 
benefits^  from  a  street  opening,  where  defend- 
ant claimed  that  remote  and  speculative  bene- 
fits, or  benefits  accruing  from  the  increased 
business  the  opening  of  the  street  might  bring 
to  the  owner,  should  not  be  considered,  it  was 
not  reversible  error  to  qualify  the  contention 
by  charging  that  the  jury  should  be  satisfied  if 
the  advantiige  accrues  vrithin  a  reasonably  short 
time  or  a  "relatively  immediate"  time,  as  that 
term  did  not  permit  the  jury  to  depart  from 
the  general  rule  by  which  damages  are  meas- 
ured by  the  difllerence  in  market  value  before 
and  after  the  improvement. 

7.  Municipal  Cobpobations  9=»5.53— Stbeet 
Opening  —  Detebmination  of  Benefits  — 
Evidence. 

In  such  proceeding  the  admission  in  evidence 
of  the  plan  of  the  property  used  by  the  viewers 
and  attached  to  their  report,  wideh  did  sot 
show  the  full  area  of  the  land,  was  not  re- 
versible error,  where  the  deficiencies  in  the  plan 
were  supplied  by  admission  of  counsel  for  de- 
fendant, by  a  deed  of  tbe  entire  property  and 
further  description  with  the  acreage  given  by 
defendant  himself. 

[Ed.    Note.— For   other   cases,   see  Municipal 
Corporations,  Cent.  Dig.  {  1262.] 

&,  Municipal  Cobpobations  i3=3553— Asbess- 
uent  of  Benefits— Evidenck—Repobt  of 
Vie  WEBS. 
Where  street  opening  proceeding  were  be- 
gun prior  to  passage  of  Act  April  2,  1903  (P. 
L.   124),   makmg  viewers'   reports  prima  facie 
evidence   of  benefits   sustained,   the   report   of 
viewers  was  not  admissible  in  evidence. 

lEA.   Note. — For  other  cases,   see  MnnicipBl 
Corporations,  Cent.  Dig.  {  1262.] 

9.  Appeal  and  Ebbob  «=s>1050(1)— Habulbbs 
Ebbob— Admission  of  Evidence. 

Error  in  the  admission  of  the  report  of 
viewers  was  not  ffround  for  reversal,  wher« 
such  ground  of  objection  was  not  relied  upon 
at  the  trial,  and  where  there  was  evidence  of 
the  fact  set  out  in  the  report,  and  where  th« 
jury  wero  instructed  that  the  report  was  not 
binding  upon  them. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  Si  1068,  1069,  4153,  4157.] 

10.  Appeal  and  Ebbob  «=9728(3)  —  Absion- 
MENTS  OF  Ebbob— StwFiciKNCT. 

Assignments  of  error  to  overruling  objec- 
tions to  certain  questions  are  defective,  where 
they  fail  to  set  forth  the  answers  to  tbe  ques- 
tions. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  3012.] 

Appeal  from  Court  of  Common  Pleas,  Pblla- 
delphia  County. 
Condemnation  proceeding  by  the  City   of 


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Pa.) 


CITY  or  PHILADELPHIA  v.  COKWAY 


473 


Philadelphia  against  WUllam  Conway,  with 
appeal  from  award  of  Jury  of  view  assess- 
ing benefits  for  the  opening  of  certain  streets. 
Judgment  for  the  plaintiff,  and  defendant 
appeals.    Affirmed. 

Argued  before  MBSTREZAT.  POITER, 
STBWABT,  MOSCHZISKEB  aad  FRAZER, 
JJ. 

J.  Lee  Fatten  and  Alfred  1>.  Wller,  both 
of  Philadelphia,  for  appellant  Glenn  G. 
Mead  and  Lools  Hntt,  Asst  City.  6ols.,  and 
John  P.  Connelly,  City  SoL,  aU  of  Philadel- 
phia, for  appellee. 

FRAZEB,  J.  [1, 2]  In  1896  tbe  dty  of 
Philadelphia  adopted  an  ordinance  providing. 
Inter  alia,  for  the  opening  of  Fifty-Eighth 
street,  from  Market  street  to  Walnnt  street, 
and  also  Walnut  street  from  Fifty-Seventh  to 
Sixtieth  streets.  The  ordinance  for  grading 
Elfty-Eaghth  street  was  passed  July  16, 1897 ; 
the  contract  for  the  work  bears  date  July 
28, 1898 ;  and  the  improvement  was  complet- 
ed September  18,  1898.  The  ordinance  for 
grading  Walnut  street  bears  date  February 
14,  1898;  the  contract,  July  12,  1896;  the 
work  was  completed  September  27, 1898.  The 
improvement  of  the  two  streets  was  carried 
on  simultaneously,  and  as  a  whole.  Under 
the  practice  then  existing  separate  boards  of 
viewers  were  appointed  to  assess  damages 
and  ben^ts  resulting  to  abutting  property 
from  the  opoiing  of  the  two  streets.  Defend- 
ant's property  is  located  at  the  southwest 
comer  of  Fifty-Mghth  and  Walnut  streets, 
beginning  at  the  intersection  <rf  the  center 
line  of  those  two  streets,  and  extending  west- 
erly on  the  center  line  of  Walnnt  street,  and 
soBtberly  <«  the  center  line  of  Flfty-Bightb 
street.  Tbe  viewers  ai>pointed  on  the  Fifty- 
Eighth  street  improvement  assessed  benefits 
against  defendant's  property  in  the  sum  of 
$2,800.  Tuts  report  was  confirmed  by  the 
court,  and  an  appeal  taken  by  defendant  to 
the  court  of  ccMnmon  pleas.  The  dty  filed  a 
statement  of  claim  May  11,  1899,  and  no  fui^ 
ther  action  was  taken  to  have  the  appeal  dis- 
posed of  until  1913,  when  the  case  was  put  at 
issue  by  defendant,  and  called  for  trial  in 
1914.  A  verdict  resulted  for  plaintiff  for  the 
amount  awarded  by  the  viewers,  plus  Interest 
from  the  date  of  the  original  assessment, 
making  a  total  amount  of  $5,824.  The  court 
below  overruled  defendant's  motion  for  a 
new  trial,  and  for  judgment  non  obstante 
veredicto,  and  this  appeal  followed. 

Defendant's  main  contention  is  that  his 
property  does  not  abut  otn  the  line  of  the  im- 
provement, and  consequently  Is  not  liable  to 
assessment  for  l>eDeflts;  hence  he  was  enti- 
tled to  have  Judgment  entered  In  his  favor 
non  obstante  veredlcta  At  the  time  these 
two  streets  were  opened  defendant's  proper- 
ty, comprising  over  nine  acres,  extended 
aouthward  from  Walnut  street,  between  Fif- 
ty-B;ighth  and  Fifty-Ninth  streets,  to  which 
access  was  had  by  an  old  lane,  or  country 
road,  called  "Marshall  Road,"  and  was  used 


as  a  brickyard.  The  opening  of  Fifty-Eighth 
street  provided  an  outlet  on  the  north  to 
Market  street,  a  main  dty  thoroughfare,  and 
the  extending  of  Walnut  street  gave  the  prop- 
erty a  street  frontage  along  its  entire  length 
on  the  northern  side.  The  opening  of  these 
two  thoroughfares  were  parts  of  the  same 
general  improvement,  and  were  completed  at 
approximately  the  same  time.  At  the  inter- 
section of  Fifty-Eighth  street  and  Walnut 
street,  a  small  rectangular  piece  of  ground 
lying  within  the  lines  of  both  streets  was  re- 
quired to  complete  the  Improvement  De- 
fendant contends  the  Walnut  street  frontage 
Induded  the  entire  width  of  Fifty-Eighth 
street  thus  leaving  his  property  without 
frontage  on  the  latter  thoroughfare.  There 
seems,  however,  to  be  no  reason  for  holding 
that  the  prc^erty  fronts  on  one  of  these 
streets  rather  than  the  other.  The  ordinance 
called  for  the  opening  of  Fifty-Eighth  street 
from  Market  to  Walnut  The  strip  of  land 
lying  between  the  northern  boundary  of  Wal- 
nut street  and  its  southern  boundary,  and 
within  the  line  of  Fifty-Eighth  street  was 
as  much  a  part  of  Fifty-Eighth  street  as  of 
Walnut  street  If  the  phrase  "to  Walnut 
street"  be  construed  to  indicate  the  north 
side  of  that  street,  as  argued  by  defendant, 
then  a  provision  in  the  same  ordinance  to 
open  Walnnt  street  from  Fifty-Eighth  to 
Sixtieth  streets  must  necessarily  be  construed 
to  mean  from  the  western  line  of  Fifty- 
Eighth  street  to  the  eastern  line  of  Sixtieth 
street  and  there  would  remain  unopened  an 
ungraded  square  piece  of  land  lying  within 
the  line  of  both  streets  at  the  comer  of  Fifty- 
Eighth  and  Walnut  streets,  thus  leaving  the 
two  Improvements  with  dead  ends  and  un- 
connected. Surely  this  was  not  the  Intention 
of  the  munldpal  authorities.  Consequently, 
under  a  fair  and  reasonable  construction  of 
the  ordinance,  "to  Walnut  street"  can  have  no 
other  meaning  than  to  the  south  line  of  that 
street  In  accordance  with  this  condusion  de- 
fendant's property  abuts  on  Fifty-Eighth 
street,  for  the  distance  of  half  the  width  of 
Walnut  street  Although  it  is  true  the  abut- 
ting portion  is  but  a  small  part  of  the  tract 
yet  the  advantage  acquired  is  an  ouUrt  to  a 
main  thoroughfare,  and  the  benefit  accrues  to 
the  tract  as  a  whole,  and  not  merely  to  the 
small  portion  directly  abutting  on  the  street 
Chester  v.  Eyre,  181  Pa.  642,  37  Atl.  837. 
Hence  the  question  of  the  extent  of  the  bene* 
fit  of  tlte  Improvement  to  the  entire  property, 
if  any,  was  properly  submitted  to  the  jury. 
This  case  is  distinguishable  from  those  re- 
lied upcm  by  defendant  following  the  general 
rule  that  property  can  be  assessed  for  pub- 
lic Improvements  but  once,  and  only  when  it 
abuts  directly  on  the  line  of  the  improve- 
ment as  was  held  in  Morewood  Avenue,  159 
Pa.  20,  28  Atl.  123,  132,  Fifty-Fourth  Street 
1(>5  Pa.  8,  30  Atl.  503,  In  re  Orkney  Street 
0  Pa.  Super.  Ct  604,  and  numerous  other 
cases.  Here  the  property  not  only  abutted  on 
the   Fifty-Eighth   street   improvement   but 


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474 


101  ATLANTIC  REPORTER 


(Piu 


there  bad  been  no  previous  proceeding  In 
which  this  particular  item  ot  benefit  was,  or 
could  be,  considered. 

The  fifteenth,  sixteenth,  and  seventeenth 
assignments  of  error  are  to  the  refusal  of  the 
trial  judge  to  affirm  points  submitted  by  de- 
fendant, requiring  an  Instruction  to  the  JU17 
that  his  propei-ty  did  not  abut  on  the  im- 
provement. These  assignments  are  disposed 
of  In  the  foregoing  part  of  this  opinion,  and 
require  no  additional  consideration. 

[3-6]  In  the  eighteenth  assignment  defend- 
ant complains  of  the  refusal  of  the  court  to 
atftrm  a  point  to  the  effect  that  benefits,  If 
allowed,  should  be  restricted  to  such  advan- 
tages as  are  special  and  peculiar  to  defend- 
ant, and  not  include  those  common  to  the 
public.  As  an  abstract  principle  of  law,  the 
point  Is  substantially  correct  Morewood 
Ave.,  supra;  Park  Avenue  Sewers,  169  Pa. 
433,  32  Atl.  574;  Beedtiwood  Avenue  Sewer 
(No.  1)  179  Pa.  490,  36  Ati.  209.  It  is,  how- 
ever, inadequate  as  applied  to  the  facts  of 
this  case,  and,  if  afilrmed  would  doubtless 
have  served  only  to  confuse  the  Jury.  The 
assessment  of  benefits  for  public  Improve- 
ments Is  but  a  mode  of  exercising  the  taxing 
power  of  the  commonwealth,  and  is  valid  only 
80  long  aa  it  provides  for  a  just  and  equitable 
assessment,  according  to  benefits  conferred. 
Washington  Avenue,  69  Pa.  352,  8  Am.  Rep. 
255;  Pittsburgh's  Petition,  138  Pa,  401,  21 
Atl.  757,  750,  761.  For  reasons  reiterated  In 
a  long  line  of  cases  we  have  evolved  the  rule 
that  such  assessments  can  be  Justified  but 
once,  and  when  confined  to  properties  directly 
abutting  on  the  improvement.  In  the  More- 
wood  Avenue  Gase^  supra,  we  said  (159  Pa. 
37.  28  Atl.  130): 

"As  wo  have  repeatedly  decided,  the  doctrine 
of  BBSessment  for  benefits,  to  pay  for  public 
improvements  can  only  be  defended  upon  the 
nound  that  the  benefits  are  local  and  easential- 
ly  peculiar  to  the  very  property  assessed,  and 
then  it  can  only  be  done  once.  This  can  only 
be  the  case  when  the  property  assessed  abuts 
directly  upon  the  Une  of  the  improvement.  Hav- 
ing their  own  burthens  to  bear  in  this  respect, 
the  owners  cannot  be  subjected  to  the  discharge 
of  similar  burthens  upon  other  properties,  whetn- 
er  situate  on  the  same  street  or  in  the  same 
neighborhood." 

A  general  advance  in  value  in  the  neigh- 
borhood is  not  ground  for  assessing  benefits, 
if  the  property  does  not  border  on  the  im- 
provement But  if  the  property  adjoins  the 
improvement  it  becomes  the  subject  of  assess- 
ment, and  the  rule  is  that  in  estimating  both 
damages  and  benefits  the  criterion  is  the 
difference  In  market  value  as  a  whole  before 
and  after  the  changed  conditions.  Defend- 
ant's fourtii  point  involving  this  rule  was 
affirmed  by  the  trial  judge;  the  sixth  point, 
excluding  remote  or  speculative  benefits,  was 
also  affirmed,  and  the  subject  fully  covered  In 
the  general  charge.  Under  the  circumstances, 
if  the  point  had  been  properly  drawn,  In  view 
of  the  facts  of  the  case,  the  refusal  to  affirm 
would  not  Justify  a  reversal.  Miller  v.  James 
Smith  Woolen  Machinery  Ck».,  220  Pa.  181,  68 


Atl.  598;  Bracken  v.  Penna.  R.  R.  Co.,  222 
Pa.  410,  71  Atl.  926,  34  L.  R.  A.  (N.  S.)  790; 
Hufnagle  v.  Delaware  &  Hudson  Co.,  227  Pa. 
476,  76  Atl.  205,  40  L.  R.  A.  (N.  S.)  962,  19 
Ann.  Cas.  850. 

[7]  The  nineteenth  assignment  complains 
of  the  failure  of  the  trial  Judge  to  affirm 
without  qualification  the  sixth  point,  which 
Included  a  statement  that  remote  and  specu- 
lative benefits  should  not  be  taken  into  con- 
sideration, nor  should  the  Jury  consider  bene- 
fits accruing  from  Increased  business  the 
opening  of  the  highway  might  bring  to  the 
owner  of  the  land.  The  court  In  answering 
this  point  said: 

"In  general,  tliat  is  a  correct  proposition, 
namely,  that  you  most  not  go  far  out  into 
dreams  to  find  out  the  advantage.  You  must 
be  satisfied  if  the  advantage  accrues  to  it  with- 
in a  reasonably  short  space  of  time,  wliidi  we 
call,  by  the  way,  relatively  immediate." 

The  complaint  is  that  the  use  of  the  words 
"relatively  immediate"  permitted  the  Jury  to 
depart  from  the  general  rule  by  which  dam- 
ages are  measured  by  the  difference  In  mar- 
ket value  before  and  after  the  improvemmt. 
We  cannot  say  the  use  of  these  words  was 
intended  to  permit  the  Jury  to  depart  from 
the  rule  laid  down  in  this  class  of  cases,  nor 
that  it  had  such  effect  In  an  Improvemeat 
of  this  nature  necessarily  extending  over  a 
period  of  time,  no  particnlar  day  can  be  set 
as  the  dividing  line  for  the  purpose  of  flxlns 
the  values  t>efore  and  after  the  taking.  A 
reasonable  time  must  necessarily  be  allowed 
for  the  completion  of  the  work,  and  a  proper 
determination  of  the  various  elements  of  val- 
ue based  upon  the  changed  condition  of  tlie 
locality.  Robblns  v.  Scranton,  217  Pa.  577, 
66  Atl.  977.  The  time  for  determining  the 
changed  value  was  explained  by  the  court  In 
the  general  charge,  and  defendant's  fourth 
point,  to  the  effect  that  the  damages  or  bene- 
fits were  to  be  measured  by  the  "difference  In 
tlie  market  value  immedlatdy  before  the 
opening  of  the  street  and  Its  market  valae 
immediately  after  the  opening  of  the  street," 
was  affirmed  without  qualification.  The  an- 
swer to  the  point  In  connection  with  the 
general  cliarge  placed  the  question  raised  in 
the  point  properly  before  the  Jury. 

[8]  In  the  first  assignment  of  error  cona- 
plalnt  is  made  of  the  admission  in  evidence 
of  the  plan  of  the  property  used  by  the  view- 
ers and  attached  to  their  report  The  plan 
showed  the  portion  of  the  property  abutting 
on  Walnut  and  Fifty-Eighth  streets  and  the 
intersectlcm  of  these  two  streets,  but  did  not 
show  the  full  extent  of  the  area  of  the  land. 
Whatever  deficiency  existed  In  this  respect 
was  supplied  by  the  admission  of  counsel 
for  defendant  that  there  were  over  nine  acres 
in  tlie  tract,  and  that  it  extended  from  tbe 
center  line  of  Walnut  street,  and  between  the 
center  lines  of  Fifty-Eighth  and  Fifty-Ninth 
streets,  southward  beyond  Spruce  street  A 
deed  of  the  property  was  subsequently  offered 
in  evidence,  and  a  further  description,  with 
the  acreage,  given  by  defaadant  himsdf.   Tb» 


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MTIiFORD  WATER  CO.  y.  KAIfNIA 


475 


Jurors,  therefore,  had  before  tbexa  a  complete 
description  of  the  extent  of  the  property  and 
Its  uses. 

It]  Defendant  also  argues  that  the  trial 
judge  erred  In  {lerniltting  the  report  of  the 
viewers  to  be  received  as  evidence.  This 
practice  vyas  established  by  the  act  of  April 
2,  1903  (P.  I*  124),  making  viewers'  reports 
prima  facte  evidence  of  benefits  sustained. 
The  provisions  of  the  act  do  not,  however, 
apply  to  proceedings  held  before  its  passage. 
Carson  v.  Allegheny,  213  Pa.  537,  62  Atl.  1070. 
Tbe  report  in  this  case  was  filed  in  1S99,  and 
was  not  properly  admissible  under  the  terms 
of  the  act.  However,  no  objection  was  made 
to  Ita  admission  on  this  ground;  the  objection 
on  the  record  being  that  the  plan  did  not 
show  the  entire  property  belonging  to  defend- 
ant. The  case  was  tried  on  its  merits,  both 
court  and  counsel  apparently  overlooking  the 
fact  that  the  proceedings  had  been  begun 
several  years  previous  to  trial,  and  before  the 
passage  of  the  act  of  1908.  We  hare  fre- 
quently refused  to  consider  objections  raised 
for  the  first  time  in  this  court  But  should 
we  be  disposed  to  depart  from  our  usual  prac- 
tice, we  are  not  convinced  that  harm  resulted 
to  defendant  by  reason  of  the  oversight  Ex- 
pert testimony  as  to  the  value  of  the  prop- 
erty, both  before  and  after  the  improvement, 
was  glTen  on  b^alf  of  both  parties,  and  the 
Jury  Instructed  that  the  report  of  the  view- 
ers was  not  binding  upon  them,  and  that  if 
in  their  opiniou  the  viewers  reached  an  im- 
proper conclusion,  they  must  have  no  hesita- 
tion In  so  saying. 

[10]  There  are  34  assignments  of  error  In 
this  case.  Those  not  discussed  above  are  de- 
fective, and  on  account  of  their  defects  re- 
quire no  comment  They  assign  the  action  of 
the  conrt  in  overruling  defendant's  objections 
to  certain  questions,  without  stating  the  an- 
swers. This  is  a  plain  violation  of  our  rule 
of  court 

The  assignments  of  error  aro  overruled. 
and  the  Judgment  is  aflSrmed. 


<92  Conn.  3U 
MILFORD  WATEIB  CO. 


T.  KANNIA  et  aL 


(Supreme  Court  of  Errors  of  Connectieut 
July  e,  1917.) 

1.  Eminent   Domain   «=»237(4)  —  Appbaisal 
OF  Pbopebty. 

The  irregularity  of  the  appraisers  in  emi- 
nent domain  proceedings  visiting  the  assessor's 
oihce  and  inspecting  the  tax  list  in  tb;  absence 
of  the  parties  is  not  a  ground  for  setting  aside  the 
award,  where  no  substantial  injustice  resulted. 
[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {  610.] 

2.  Eminent  Domain  ^(=3231— Appbaisai.  of 
Pbopebty. 

It  is  not  irregular  for  appraisers  to  exam- 
ine public  records  which  are  admissible  in  evi- 
dence and  are  afterwards  admitted. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  §S  58&-588J 
S.   KMINENT    DOMAIW    <&=»134— APPBAISAL   0» 

Pboperty— Damages. 
In   appraising   property  the  owner  cannot 
have  inrliided  as  nn  item  of  damages  the  possi- 


ble profits  should  a  water-bottling  plant  be  in- 
stalled in  the  absence  of  evidence  as  to  the 
adaptability  of  the  land  for  such  purpose,  or  as 
to  the  profitable  character  of  the  industry. 

[Ed.  Note.— For  other  cases,  see  Elminent  Do- 
main, Cent  Dig.  8  3o6.] 

4.  Eminent  Domain  «=»202(1)— Appbaisait- 

SCOPB  OF  InQUIKY. 

It  is  not  improper  for  a  member  of  the  ap- 
praising committee  to  ask  whether  a  cow  got 
mired  on  the  land  to  be  condemned. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do 
main.  Cent  Dig.  i  541.] 

6.  EvinENCE  «=»266— Dbclabatiohs. 

Then  is  no  error  in  excluding  a  questicm 
asked  whether  a  real  estate  expert  had  not  in 
conversation  appraised  premises  at  a  higher  val- 
ue than  his  testimony  showed,  since  the  fact 
tliat  a  real  estate  expert  employed  to  establish 
an  asking  price  has  revised  Jiis  opinion  down- 
ward is  no  evidence  that  the  revised  valuation 
is  less  correct  than  the  original. 

[Ed.  Note.— For  other  oasea,  see  Evidence, 
Cent  Dig.  i  1051.] 

Appeal  from  Superior  Court,  New  Haven 
County,    Gardiner  Greene,  Judge. 

Proceedings'  by  the  Mllford  Water  Com- 
pany against  Antonio  Kannla  and  others. 
From  a  judgment  overruling  remonstrance  to 
report  of  appraisers  on  condemnation  pro- 
ceedings, Kannla  and  others  appeal.    No  error. 

See,  also,  100  Atl.  1064. 

George  B.  Beers,  of  New  Haven,  for  ap- 
pellants. George  D.  Watroua,  of  New  Haven, 
for  appellee. 

BEACH,  J.  At  the  last  term  a  motion  to 
dismiss  tills  appeal  was  overruled,  and  It 
now  comes  before  us  on  its  merits. 

The  first  assignment  of  error  relates  to  the 
reception  against  objection  of  a  tax  list  con- 
taining a  valuation  for  assessment  of  48  acres 
of  land,  including  the  premises  in  question, 
on  the  ground  that  the  valuation  was  not 
shown  to  have  been  made  by  either  of  the  re- 
spondents. But  whether  the  objection  is  well 
taken  or  not  is  of  no  consequence,  because 
the  appraisers  valued  the  16  acres  taken  by 
the  applicant  at  more  than  three  times  the 
assessed  value  of  the  entire  48  acres. 

[1]  It  is  also  objected  that  the  appraisers 
visited  the  assessor's  office  and  inspected  the 
tax  list  In  the  absence  of  the  parties;  but, 
as  no  substantial  injustice  resulted,  the  al- 
leged irregularity  Is  not  a  ground  for  setting 
aside  the  award.  Groton  &  Ledyard  v.  Hurl- 
bnrt,  22  Conn.  191;  Bristol  t.  Branford,  42 
Ctonn.  321;  New  MUford  Water  Co.  v.  Wat- 
son, 75  Conn.  237,  247,  52  Atl.  947,  53  AtL  57. 

[2]  Moreover,  It  Is  not  Irregular  for  ap- 
praisers to  examiue  public  records  which  are 
admissible  in  evidence  and  are  afterward 
admitted. 

[3]  It  is  also  assigned  as  error  that  the 
appraisers  excluded  a  question,  asked  of  the 
witness  Whitney,  as  to  how  many  quarts  of 
bottled  drinking  water  would  have  to  be 
handled  per  diem  in  order  to  moke  the  busi- 
ness a  feasible  one.    The  respondents'  claim 


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101  ATI/ANTIC  REPORTER 


^nn. 


In  this  connection  was  that  without  making 
an  unreasonable  use  of  the  water  of  Beaver 
brook,  which  adjoined  their  land,  and  with- 
out appre<^My  diminishing  Its  flow,  a  bot- 
tling business  could  be  conducted  on  their 
land  for  bottling  and  selling  drinking  water, 
and  that  the  value  of  th«  land  for  that  use 
should  be  taken  into  account.  The  apprais- 
ers excluded  the  question  on  the  ground  that 
the  respondents'  had  no  right,  as  against  low- 
er riparian  owners,  to  use  any  of  the  water 
of  the  brook  except  for  farm  and  household 
purposes.  It  appears  Incidentally  from  the 
report  that  there  are  some  springs  on  the  re- 
sitondents'  land;  but  no  question  Is  raised  on 
this  appeal  as  to  the  right  of  a  landowner  to 
impound  and  divert  spring  water  at  Its 
source,  and  we  express  no  opinion  on  that 
point  The  only  ground  of  this  branch  of  the 
remonstrance  Is  that  the  committee  erred  in 
ruling  that  the  respondents  had  no  right  as 
riparian  owners  to  bottle  and  sell  any  part 
of  the  water  of  Beaver  brook.  We  are  of 
opinion  that  the  question  objected  to  was 
properly  excluded.  The  Just  compensation  to 
which  a  landowner  is  entitled  In  condemna- 
tion proceedings  is  the  value  of  the  land 
taken  (and  in  a  proper  case  the  damage  to 
the  balance  of  his  land)  considered  with  ref- 
erence to  the  uses  for  which  the  land  is  then 
adapted.  It  follows  that  no  evidence  of  value 
Is  admissible  with  reference  to  the  alleged 
adaptability  of  the  land  for  any  special  com- 
mercial buslnees  until  a  foundation  is  laid  by 
evidence  that  the  land  Is  in  fact  adapted  for 
that  special  business  at  the  time  of  the  tak- 
ing. A  mere  claim  of  counsel  Is  not  enough. 
It  is  useless,  for  example,  to  discuss  the  al- 
leged right  of  the  respondents  to  sell  bottled 
water  from  Beaver  brook,  unless  it  is  first 
made  to  appear  that  there  is  an  available 
market  for  It.  There  is  nothing  in  this  rec- 
ord to  show  either  an  existing  market  for 
Beaver  brook  water  In  bottles,  or  that  the 
water  of  Beaver  brook  iwssesses  special  qual- 
ities which  would  tend  to  make  it  more  sal- 
able In  bottles  than  ordinary  brook  water; 
and  ordinary  brook  water  is  not  so  salable. 
As  bearing  on  the  value  of  the  re^wndenta' 
land,  the  evidence  objected  to  was  too  remote 
and  speculative,  and  on  that  ground  alone  the 
committee  did  not  err  In  rejecting  It  On 
this  state  of  the  record  the  question  whether 
a  riparian  owner  may  bottle  and  sell  brook 
water,  provided  he  does  not  thereby  appre- 
ciably or  unreasonably  diminish  the  flow  of 
the  stream,  appears  to  us  to  be  a  moot  ques- 
tion which  does  not  require  discussion. 

[4]  A  member  of  the  committee  who  had 
heard  of  the  fact  that  a  cow  got  mired  on  the 
land  in  question  very  properly  asked  the  re- 
spondent Kannia  about  it  when  the  latter 
was  on  the  witness  stand.  This  incident  af- 
fords no  basis  at  all  for  a  claim  of  bias  or 
injustice. 


[B]  There  was  no  error  in  excluding  the 
question  addressed  to  his  own  real  estate 
expert  by  the  respondents'  counsel  asking 
whether  he  had  not  in  conversation  appraised 
the  premises  at  a  higher  valuation  than  that 
to  which  he  had  just  testified.  The  fact  that 
a  real  estate  expert  employed  to  establish  an 
asking  price  has  revised  his  opinion  down- 
ward is  no  evidence  that  the  revised  valua- 
tlon  is  less  correct  than  the  original. 

There  is  no  error.  The  other  Judges  con- 
curred. 


(M  Conn.  58) 
STATE  V.  CASTEIiLI  et  aL 

(Supreme  Court  of  Brrorg  of  Connecticut 
July  6,  1917.) 

1.  Cbimiwal  Law  <g=622(l)^JoiNT  Tbiai.  of 
Defendants — Discretion  of  Couet. 

It  Is  within  the  discretion  of  the  court  to 
grant  a  separate  trial  to  defendants  jointly  in- 
dicted, and  it  is  not  an  abuse  of  discretion  to 
deny  separate  trials  unless  it  appears  that  a 
joint  trial  will  probably  result  m  substantial 
injustice. 

[Ed.    Note.— For   other   cases,   see   Criminal 
Law,  Cent  Dig.  §{  2210,  2214.} 

2.  Ckiminai,  Law  i8!=>622(2)— Joint  Trial  o» 

DEFENOANTB — DiSCKBTION    OF    COUBT. 

It  is  not  necessarily  a  ground  for  granting 
a  separate  trial  to  defendants  jointly  indicted 
that  evidence  will  be  admissible  against  one 
which  is  not  admissible  against  the  other,  sinc« 
evidence  may  be  received  and  its  limited  a^ 
plication  pointed  out  to  the  jury. 

[Ed.    Note. — For   other   cases,   see   Criminal 
Law,  Cent  Dig.  {{  2210,  2213,  2216,  221T.] 

3.  Cbiminai.  Law  «s>622(2)— Joint  Tbial  or 

DSFENnANTS — DlBCBETION  OF  CoUBT. 

Ordinarily  the  fact  that  one  of  the  accused 
has  made  a  confession  incriminating  the  other 
is  a  good  ground  for  granting  separate  trial  of 
defendants  jointly  indicted. 

[Ed.    Note.— For   other   cases,    see   Criminal 
Law.  Cent.  Dig.  U  2210,  2213,  2216,  2217.] 

4.  Chiminax  Law  «=9622(2)— Joint  Tbiai.  or 
Defendants— Discketion  of  Coubt. 

Where  each  of  two  defendants  jointly  indict- 
ed made  a  full  confession  of  facts  which  if  legal- 
ly corroborated  was  sufficient  to  convict  either 
of  them,  it  is  not  an  abuse  of  discretion  to  re- 
fuse separate  trial,  asked  on  the  ground  that 
evidence,  consisting  of  confessions,  admissible 
against  one,  was  not  admissible  against  the 
otlier. 

[Ed.    Note. — ^For   other    cases,    see    Criminal 
Law,  Cent  Dig.  If  2210,  2213,  2216,  2217.] 

5.  Cbiminal  Law  «s»1158(2)— APPBAt— Coi.- 

LATERAL   QUESTIONS. 

Generally  speaking  the  decision  of  a  trial 
court  on  a  preliminary  and  collateral  question 
of  fact  will  not  be  reversed  unless  in  a  case  of 
clear  and  manifest  error. 

6.  Criminal  Law  «::»531(2)— Witnesses  «=> 
241  —  Pbeliminabt  Questions  —  Leadinq 
Questions. 

It  was  not  error  to  admit  a  general  ques- 
tion addressed  to  state's  witness  whether  any 
threats  were  made  or  inducements  held  out  to 
procure  confessions,  the  issue  being  a  prelim- 
inary one,  tried  to_  the  court  in  the  absence  of 
jury  with  opportunity  of  cross-examination  since 


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Conn.) 


STATE  y.  CASTELLI 


477 


in  such  case  leading  qnestiona  and  questions  call- 
ing for  conclusions  oC  fact  are  admissible. 

[Ed.    Note.— For    other   cases,    see   Criminal 
Law,  Cent.  Dig.  g  1214 ;   Witnesses,  Cent.  Dig. 
SS  795,  840.] 
7.  CBiHiitAi.  Law  ie=»673(4)— Evidencb— Ad- 

ifiBBiBiuTT— Confessions. 
Where  two  defendants  are  jointly  indicted 
and  tried  for  murder,  the  confession  of  one  of 
them  is  properly  admitted  as  against  him  if  the 
jury  is  instructed  not  to  consider  it  aa  evidence 
against  the  other. 

[Ed.    Note.— For   other   cases,    gee   Criminal 
Law,  Cent.  Dig.  81  1897,  1873.] 
&  Cbiminai,   Law    <S=>518(1),    531(1)  —  Evi- 

DENCK  —   ADMiaSlBILITT  —  CoNrESSIONS  — 
VOLIJKTABT   CHAKACTEK. 

Before  a  confession  of  accused  can  be  admitp 
ted,  the  state  must  show  its  voluntary  charac- 
ter, and  it  is  not  essential  that  a  warning  be 
given  that  accused  could  not  be  compellea  to 
make  the  confession  if  the  vcduntary  character 
is  otherwise  shown,  especially  where  the  accused 
has  been  warned  at  another  time  prior  to  mak- 
ing the  confession, 

[Ed.    Note.— For   other   cases,    see   Criminal 
Law,  Cent.  Dig.  {§  1167,  1159,  1212,  1213.] 

9.  CnntiwAL  Law  e=»681(8)— Evidence— Ad- 
MisaiBiLiTT  —  Confessions  —  Voluntabt 
Chabacteb. 

Evidence  held  to  show  that  confession  of  one 
of  two  defendants  jointly  indicted  and  tried  was 
voluntarily  made. 

[Ed.    Note.— For    other   cases,    see   Criminal 
Law,  Cent  Dig.  §  1215.] 

10.  Cbikinal  Law  <8=»858(3)  — Conduct  0» 
Tbiai/— Taking  Btvidence  to  Jubt  Roou. 

It  is  not  error  to  allow  the  jury  to  taketo 
the  jury  room  confessions  of  the  accused  which 
were  admitted  as  exhibits. 

[Ed.    Note.— For   other   cases,    see    Criminal 
Law,  Cent  Dig.  |  2058.] 

11.  Cbiminai.  Law  <8=>402(1)  —  EviDEnot — 
Lost  Documents— Admibsibiutt. 

Where  the  aseistant  state's  attorney  stated 
that  he  had  been  through  every  scrap  of  paper 
the  state  had,  and  could  not  find  papers  show- 
ing a  statement  of  accused  that  he  would  con- 
fess, it  was  not  error  to  permit  parol  testimony 
of  the  alleged  transaction. 

[Ed.    Note.— For   other   cases,   see   Criminal 
Law,  Cent  Dig.  {g  887,  1211.] 

12.  Homicide  «i=»166(5>— Evidence— Admis- 
bibilitt. 

In  prosecution  for  wife  murder,  a  summons 
in  suit  for  nonsupport  by  deceased  against  ac- 
cused is  admissible  as  tending  to  show  accused's 
reason  to  believe  that  his  wife  had  complained 
to  the  police. 

[Ed.   Note.— For   other  cases,   see  Homicide, 
Cent  Dig.  {  826.] 

13.  Cbiminai.  Law  <s=>517(1)— Bvidenoet-Ad- 
MissiBiiJTY— Confessions. 

The  confessions  of  two  defendants  jointly 
indicted  and  tried,  being  inconsistent  with  re- 
spective pleas  ot  not  guilty,  when  proved  are 
evidence  affecting  the  defendants. 

(Ed.   Note.— For   other   cases,    see   Criminal 
Law,  Cent  Dig.  S|  U46,  1148,  1149.] 

14.  Cbiminai.  Law  «=»823(15)  — Tbial  — In- 
btbuctiors— Keabonabuc  Dodbt. 

In  prosecution  for  murder,  where  the  court 
fully  instructed  on  reasonable  doubt  and  the  de- 
gree of  proof  required,  mere  use  of  the  phrase 
"'considerable  doubt"  was  not  error,  where  the 
Jury  could  not  have  misunderstood. 

[Ed.    Note.— For    other    cases,    see   Criminal 
Law,  Cent  Dig.  §§  1992-1994.  3158.] 


16.  Cbiminai.  Law  «=»777V4  —  Tbial  —  In- 

stbuctions. 
Where  the  court  carefully  instructed  that 
the  jury  must  take  the  evidence  from  the  wit- 
nesses, that  bis  own  recollection  of  the  testi- 
mony might  be  incorrect,  his  omission  to  state  a 
certain  fact  testified  to  was  not  error. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §  1807.] 

16.  Cbiminal  Law    «=»834(2)  — Tbiai.  — In - 
stbuctions. 

The  court  is  not  bound  to  use  the  phrase- 
ology of  counsel  in  preference  to  its  own  in  stat- 
ing familiar  propositions  of  law  to  the  jury. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  H  1202-1205,  1222-1224.] 

17.  Homicide  «=3l07— Justification. 

A  husband  who  on  his  own  story  suspects 
that  his  wife  and  a  friend  are  going  to  nave 
illicit  relations,  follows  them  to  a  distant  city, 
conceals  himself  in  a  closet,  armed  with  a  dead- 
ly weapon,  waits  for  the  expected  provocation 
to  materialize,  and  then  kills  his  wife,  cannot 
claim  justification. 

[Ed.  Note.— For  other  cases,  see  Homicide, 
Cent  Dig.  {  137.] 

18.  Cbiminai  Law  «=>510— Accomplice  Tes- 

TIMONT — SUPnCIENOT. 

One  of  two  defendants  jointly  indicted  and 
tried  cannot  be  convicted  solely  on  the  testimony 
of  the  other. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  »  1124^1126.] 

19.  Cbiminai.  Law  «=)C08(3)— Conspibaot- 
Evidence — Admissibiutt. 

in  a  prosecution  for  murder  against  two 
defendants  jointly  on  theory  of  ccmspimcy, 
where  one  of  them  testified  in  his  own  <lefens«N 
his  testimony  was  admissible  so  far  as  it  tended 
to  prove  or  disprove  the  conspiracy  outlined  by 
the  confession  of  the  other  defendant 

[Ed.  Note,— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  M  1101.  1104, 1113rlll5;  Wit- 
nesses.  Cent  Dig.  i  244.] 

20.  Homicide  «=5»263(1)  — Bvidbwob— Sum- 

Evidence  Md  to  sustain  the  conviction  of 
two  defendants  jointly  indicted  for  a  crime  of 
first  degree  murdsr. 

[Ed.  Note.— For  other  cases,  see  Homicide 
Coit  Dig.  H  623,  581.] 

Wheeler,  J.,  dissoiting. 

Appeal  from  Superior  Court,  New  Haven 
County;  Joel  H.  Reed,  Judge. 

Joseph  eastern  and  Francesco  Vetere  were 
convicted  of  murder,  and  they  appeal.  No 
error. 

The  defendants  were  convicted  in  the  so- 
perior  court  for  New  Haven  county  of  mur- 
der in  the  first  degree.  They  were  jointly 
indicted  for  the  murder  of  Annie,  the  wife  of 
Castelli,  who  was  found  in  a  bedroom  at 
260  Crown  street.  New  Haven,  on  Easter 
Sunday,  April  23, 1916,  suffering  from  severe 
fractures  of  the  skull,  of  which  she  died  on 
the  following  day.  The  deceased  and  both 
the  accused  were  deaf  mutes.  On  the  2eth 
of  April  both  of  the  accused  were  appre- 
hended in  New  York  in  connection  with  an 
Inquiry  Into  the  disappearance  from  New 
York  of  Annie  CastelU.  While  the  inquiry 
was  in  progress  the  coroner  for  New  Haven 


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(CJoiin. 


county  arrived  and  tbe  Identity  of  the  miss- 
ing woman  with  the  murdered  woman  was 
established.  Each  one  of  the  accused  freely 
made  a  full  confessloa  to  the  coroner  in 
which  each  separately  from  the  other  de- 
scribed the  killing  in  substantially  the  fol- 
lowing way:  Castelli  for  reasons  given  was 
tired  of  his  wife  and  desired  to  get  rid  of 
her.  He  induced  Vetere  to  plan  and  carry 
out  n  pretended  elopement  for  the  purpose 
of  bringing  Annie  to  New  Haven,  where  Cas- 
telli was  to  kill  her.  Pursuant  to  this  con- 
spiracy, Vetere  Induced  Annie  to  accompany 
him  to  New  Haven,  and  took  her  to  a  lodging 
house  at  200  Crown  street,  where  tb^  ol>- 
talned  a  room,  representing  themselves  as 
man  and  wife.  They  then  went  out  to  lunch, 
and  Vetere  found  an  opportunity  of  leaving 
Annie  and  Informing  Castelli,  who  had  fol- 
lowed them  on  the  same  train,  of  the  where- 
abouts of  the  room  and  how  to  open  the 
front  door  at  260  Crown  street  After  lunch 
Vetere  and  Annie  went  back  to  their  room, 
where  Castelli  had  in  the  meantime  con- 
cealed himself  in  a  closet  armed  with  a  piece 
of  Iron  pipe.  Vetere  kissed  Annie,  and  after 
some  love-making  went  to  the  front  window. 
Vetere  says  that  Annie  appeared  to  fi»U 
asleep.  Castelli  then  came  out  of  the  closet 
and  struck  her  on  the  head  with  the  pipe, 
ioflictlng  the  wounds  from  whidb  she  after- 
wards died.  Castelli  and  Vetere  then  to<^ 
Annie's  Jewelry  and  money  and  returned  to- 
gether on  the  same  train  to  New  York.  On 
the  way  down  Vetere,  at  Castelll's  suggestion, 
wrote  a  postal  card  to  the  effect  that  Annie 
had  eloped,  addressed  it  to  Castelli,  and 
mailed  it  on  reaching  New  York.  This  post- 
al card  was  produced  and  put  in  evidence  at 
the  triaL  That  evening  they  both  went  to- 
gether Co  a  social  entertainment  E>ach  of 
the  confessions  was  admitted  in  evidence 
against  the  party  who  made  it,  but  not  as 
against  the  other  accused.  The  state  also 
proved  the  death  and  identity  of  Annie  Castel- 
li ;  the  fact  that  she  and  Vetere  were  seen  to- 
gether at  the  boarding  house;  that  Annie 
was  left  alone  in  the  restaurant  for  a  time 
and  rejoined  by  Vetere;  that  Vetere  was 
seen  leaving  the  boarding  house  alone  with 
a  bag.  Annie's  Jewelry  was  recovered  from 
the  person  to  whose  custody  Vetere  had  com- 
mitted It 

On  the  trial  each  of  the  defendants  went 
upon  the  witness  stand  and  admitted  all  the 
physical  facts  recited  in  their  respective  con- 
fessions, but  Vetere  claimed  that  the  el<^>e- 
ment  was  a  genuine  one,  and  Castelli  claim- 
ed that  he  learned  of  it  by  seeing  Annie  and 
Vetere  conversing  about  It  in  the  sign  lan- 
guage, followed  them  to  New  Haven  without 
V'etere's  knowledge,  ascertained  by  observa- 
tion where  their  room  was  at  260  Crown 
street,  and  found  his  way  there  without  the 
assistance  of  Vetere,  concealed  himself  in 
the  closet  armed  with  a  piece  of  iron  pipe, 
and  that  be  became  enraged  at  the  behavior 


of  Annie  and  Vetere,  and  killed  bis  wife  un- 
der the  influence  of  uncontrollable  rage. 

WlUiam  A.  Bree  and  John  CunlUIe,  Jr., 
both  of  New  Haven,  for  appellant  Castelli. 
Spotawood  D.  Bowers,  of  Bridgeport,  and 
Samuel  E.  Hoyt  of  New  Haven,  for  appel- 
lant Vetere.  Amon  A.  Ailing,  State's  Atty., 
and  Walter  M.  Pickett  Asst  State's  Atty., 
both  of  New  Haven,  for  the  State. 

BEIACH,  J.  (after  stating  the  facts  as  above). 
At  the  opening  of  the  trial  Vetere  moved 
for  a  separate  trial  on  the  ground  that  It 
would  appear  from  the  coroner's  finding  and 
notes  that  there  was  evidence  In  the  case  ad- 
missible against  one  and  not  admissible 
against  the  other  of  the  accused.  Castelli 
made  no  motion  for  a  separate  triaL  Vetere'a 
motion  was  opposed  by  the  state's  attorney  on 
the  ground  that  the  crime  was  committed  in 
carrying  out  a  conspiracy  to  murder  the  de- 
ceased, and  that  as  to  any  items  of  evidence 
which  might  be  admissible  against  Castelli 
only  Vetere  could  be  adequately  protected  by 
a  proper  instruction  to  the  Jury.  The  court 
overruled  the  motion  and  directed  tbe  accus- 
ed to  be  tried  together,  and  this  is  assigned 
OS  error  by  both  of  the  accused. 

(1]  The  rule  as  to  granting  separate  trials 
to  persons  Jointly  Indicted  Is  stated  in  State 
v.  Braunels,  84  Conn.  222,  226,  79  AtL  70,  72, 
as  follows: 

"Whether  a  separate  trial  shall  ba  allowed  to 
parties  jointly  indicted  is  within  tbe  discretion 
of  the  court.  Ordinarily  justice  is  better  sub- 
served whero  the  parties  are  tried  together. 
But  cases  arise  where  the  defenses  of  the  differ- 
ent parties  are  antagonistic,  or  where  evidence 
will  l>e  introduced  against  one  which  will  not  be 
admissible  against  others.  Where  from  the  na- 
ture of  the  case  it  appears  that  a  joint  trial 
will  probably  bo  prejudicial  to  the  rights  of  one 
or  more  of  the  parties,  a  separate  trial  should 
be  granted  when  properly  requested." 

The  discretion  of  the  court  la  necessarily 
exercised  before  the  trial  begins,  and  with 
reference  to  the  situation  as  it  then  appears ; 
and  the  phrase  "prejudicial  to  the  rights  of 
the  parties"  means  something  more  than  that 
a  joint  trial  will  probably  be  less  advanta- 
geous to  the  accused  than  separate  trials. 
The  controlling  question  Is  whether  it  ap- 
pears that  a  joint  trial  will  probably  result 
In  substantial  injustice. 

[2]  It  is  not  necessarily  a  ground  for  grant- 
ing a  separate  trial  that  evidence  will  be  ad- 
missible against  one  of  the  accused  which  Is 
not  admissible  against  another.  Such  evi- 
dence is  received  and  its  limited  application 
pointed  out  to  the  jury  in  most  cases  where 
two  or  more  accused  persons  are  tried  to- 
gether. When  tbe  existence  of  such  evidence 
is  relied  on  as  a  ground  for  a  motion  for 
separate  trials,  the  character  of  the  evi- 
dence and  its  effect  upon  the  defense  intended 
to  be  made  should  be  stated  so  that  the 
court  may  be  in  a  position  to  determine  the 
probability  of  substantial  Injustice  being 
done  to  the  moving  party  from  a  Joint  trial. 


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STATE  y.  CASTELLl 


479 


It  does  not  appear  from  the  record  tbat  the 
trial  court  was  so  advised  in  this  case,  and 
on  that  ground  alone  It  Is  Impossible  to  say 
tbat  the  court  abused  Its  discretion  In  deny- 
ing Vetere's  motion. 

[3]  Ordinarily  the  fact  that  one  of  the  ao 
cosed  has  made  a  confession  incriminating 
the  other  would  be  a  good  ground  for  grant- 
ing a  separate  trial.  But  the  peculiarity  of 
this  case  was  that  eadi  of  the  accused  had 
made  a  full  written  confession  of  facts  which, 
if  legally  corroborated,  was  sufficient  to  con- 
vict either  <me  of  them  of  murder  In  the 
first  degree. 

[4]  It  follows  that  no  material  fact  incrim- 
inating either  one  of  the  accused  came  to  the 
knowledge  of  the  Jury  because  they  were  tried 
together  which  would  not  also  have  come  to 
the  knowledge  of  a  Jury  if  each  had  been 
separately  tried  and  his  own  confession  ad- 
mitted against  him.  This  being  so,  the  claim 
that  snbetantial  injustice  was  done  by  a 
j«^t  trial  relates  rather  to  the  corroborative 
effect  which  each  of  these  confessions  may 
be  supposed  to  have  had  upon  the  other ;  and 
if  we  assume  that  the  trial  court  did  know 
all  the  facts  before  the  trial  began,  the  ques- 
tion  presented  to  it  was  whether  It  would 
order  separate  trials  of  two  self-confessed 
conspirators,  each  of  whose  acts  and  dec- 
larations made  or  done  in  pursuance  of  the 
Gon^iracy  was  admissible  against  the  other, 
because  their  respective  confessions,  being 
made  after  the  event,  were  not  so  admissible. 
Tbe  mere  statement  of  this  proposition  shows 
that  the  question  was  one  fairly  within  the 
limits  of  Judicial  discretion,  and  ttiat  a  denial 
of  Vetere's  motion  for  a  separate  trial  was 
not  an  abase  of  discretion.  In  view  of  the 
precautions  taken  in  the  admission  of  evidence 
and  again  in  tbe  charge  of  the  court,  we  can- 
not assume  that  the  Jury  were  improperly 
influenced  by  any  corroborative  effect  given 
to  evidence  not  admissible  against  one  of 
the  accused,  but  admitted  as  against  the 
other  only.  It  may  be  observed  that  our 
attention  has  been  called  to  but  two  cases 
in  this  country  where  the  action  of  a  trial 
court  in  refusing  to  grant  separate  trials  to 
persons  Jointly  indicted  has  been  held  to  be 
reversible  error.  In  one  of  them  the  right  to 
a  separate  trial  was  granted  by  statute,  and 
in  the  other  the  effect  of  the  Joint  trial  was 
to  derive  the  accused  of  the  benefit  of  ma- 
terial testimony,  under  the  common-law  rule 
tbat  persons  Jointly  indicted  and  tried  may 
not  be  called  as  witnesses  for  or  against  each 
other. 

[t]  Generally  speaking,  the  decision  of  a 
trial  court  upon  a  preliminary  and  collateral 
question  of  fact  will  not  be  reversed  unless 
in  a  case  of  clear  and  manifest  error.  In 
State  V.  Willis,  71  Conn.  293,  313,  41  Atl. 
820,  this  rule  was  applied  to,  or  quoted  as 
applicable  to,  the  determination  of  the  volun- 
tary character  of  extrajudicial  confessions  as 
affecting  their  admissibility  in  evidence;  and 
we  see  no  reason  why  it  is  not  equally  appli- 


cable to  the  determination  of  the  probability 
or  improbability  of  substantial  injustice  flow- 
ing from  a  Joint  trial  of  persons  Jointly  In- 
dicted. If  it  were  not  so,  there  would  be 
grave  danger  of  mistrials  from  causes  which 
were  nnknown  to  the  trial  court  at  the  time 
when  it  was  required  to  dedde  the  question. 
Moreover,  Joint  trials  of  persons  Jointly  in- 
dicted are  the  rule,  and  separate  trials  the- 
exception  resting  in  the  discretion  of  tbe 
court  For  the  reasons  indicated  we  are  sat- 
isfied that  In  this  case  the  court  did  not  err 
in  denying  Vetere's  motion  for  a  separate  tri- 
al, and  that  no  substantial  Injustice  has  been 
suffered  by  either  of  tbe  accused  in  conse- 
quence of  thrfr  Joint  trial. 

The  assignments  of  error  next  in  logical 
order  are  those  relating  to  tbe  admission  of 
the  several  statements  and  confessions  of 
the  accused.  Here  again  the  court  had  to 
deal  with  a  preliminary  issue,  and  upon  the 
trial  of  that  issue  all  of  the  statements  and 
confessions  were  abundantly  shown  by  the 
state  to  have  been  given  voluntarily  and 
without  undue  Influence  of  any  kind. 

[6]  Referring  first  to  the  assignments  of 
error  relating  to  this  branch  of  the  case  pur- 
sued on  the  brief  for  Castelli:  There  was  no 
error  in  admitting  the  general  question  ad- 
dressed to  the  state's  witnesses  whether  any 
threats  were  made  or  inducements  held  out 
to  procure  the  confessions.  The  issue  was  a 
preliminary  one,  tried  to  tbe  court  in  tbe  ab- 
sence of  tbe  Jury,  and  opportunity  was  glv* 
en  for  cross-examination.  Under  these  cir- 
cumstances tbe  court  might  in  its  discretion 
shorten  the  direct  examination  of  witnesses 
by  admitting  leading  questions  and  questions 
asking  for  conclusions  of  fact  Eixhibit  81 
was  an  affidavit  for  the  purpose  of  extradi- 
tion, and  the  evidence  of  the  officer  Einright 
is  not  only  tbat  Castelli  before  signing  it 
read  it  over  carefully  and  made  a  correction 
in  it,  bat  on  cross-examination  that  the  no- 
tary warned  Castelli  in  writing  that  any- 
thing he  signed  might  be  used  against  him. 
Bxhiblt  39  is  the  detailed  confession  made 
by  Castelli  to  the  coroner  of  New  Haven 
county,  and  it  is  prefaced  by  a  written  warn- 
ing in  tbe  form  approved  by  this  court  in 
State  V.  Coffee,  56  Conn.  399,  16  Atl.  151,  and 
in  State  r.  WiUis,  71  Conn.  306,  41  Atl.  820. 
Exhibit  28  is  a  paper  written  by  Castelli  ad- 
mitting the  kiUing  and  addressed  to  the  cor- 
oner after  Castelli  had  been  taken  to  the 
door  of  the  room  where  Vetere  was,  and  bad 
seen  that  Vetere  was  making  a  statement  to 
tbe  coroner.  The  witness  De  Martini  testi- 
fied that  Castelli  asked  for  a  piece  of  paper 
on  which  to  write  it.  No  doubt,  Castelli  was 
influenced  by  what  he  had  Just  seen  and  by 
the  statement  of  De  Martini,  which  was  true, 
that  Vetere  was  telling  the  whole  story ;  but, 
as  pointed  out  in  State  v.  Willis,  supra,  it 
is  difficult  to  conceive  of  a  confession  which 
is  not  induced  by  a  sense  of  self-interest. 
Moreover,  this  paper  added  no  material  fact 


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101  ATLANTIC  REPORTER 


(Conn. 


to  tbe  case  made  by  the  state.  CastelU  made 
several  statements  on  April  26tti,  and  tbe 
state  very  properly  offered  all  of  them  In  evi- 
dence, but,  so  far  as  tbe  Issue  of  guilt  or  In- 
nocence Is  concerned,  they  were  all  merged 
In  or  superseded  by  the  final  confession,  EDc- 
hlbit  39,  which  was  complete  in  Itself. 

[7]  Exhibits  38  and  30  are  statements 
made  by  Vetere  Incriminating  CastelU.  These 
were  not  admitted  as  against  CastelU,  and 
the  Jury  were  instructed  not  to  consider  them 
as  evidence  against  him.  They  were  neces- 
sarUy  admissible  as  against  Vetere,  and  the 
course  which  tbe  court  took  was  the  only  one 
possible.  On  their  merits  the  assignments  of 
error  relating  to  these  statements  of  Vetere 
go  back  to  the  denial  of  tbe  motion  for  a 
separate  trial  which  has  already  been  dis- 
cussed. 

[6]  In  this  connection  we  take  np  the  al- 
leged error  of  the  court  in  admitting  the 
story  of  eastern's  rehearsal  of  the  murder 
scene  at  260  Crown  street  on  May  3d.  The 
claim  Is  that  CasteUl  was  compelled  to  re- 
enact  the  murder,  and  so  compelled  to  give 
evidence  against  himself.  This  again  was  a 
preliminary  Issue,  and  tbe  court  so  treated  It 
ruling  that  the  state  must  show  that  the  ac- 
tions of  CastelU  were  voluntary.  The  state 
fully  sustained  the  affirmative  of  that  issue, 
but  the  objection  is  made  that  CastelU  was 
not  at  that  time  warned  that  he  could  not  be 
compeUed  to  rehearse  the  murder  or  that 
such  rehearsal  might  be  used  against  him. 
OThere  Is,  however,  no  role  of  law  In  this  state 
which  requires  any  such  warning.  The  state 
must  show  affirmatively  that  any  confession 
or  performance  In  the  nature  of  a  confession 
was  not  procured  by  duress.  Tbe  fact  that 
a  warning  in  the  usual  form  has  been  given 
Is  generally  accepted  as  satisfactory  evidence 
that  the  confession  was  not  procured  by  du- 
ress. But  when  the  voluntary  character  of 
the  confession  Is  shown  either  by  proof  of  a 
warning  Or  by  any  other  satisfactory  evi- 
dence the  law  and  the  Constitution  are  satis- 
fled.  In  this  Instance  a  warning  bad  been 
given  to  CastelU  the  week  before,  and  he  had 
fully  confessed  after  being  warned.  A  week 
later  he  was  asked,  being  deaf  and  dumb,  to 
go  to  the  scene  of  the  crime  and  repeat  the 
confession  In  pantomime,  and  upon  the  evi- 
dence he  did  so  voluntarily.  A  second  warn- 
ing under  such  circumstances  woold  have 
been  superfluous. 

CastelU  testified  when  on  the  witness 
stand  that  one  of  the  officers  at  tbe  police 
station  In  New  York  struck  blm  many  tirne^ 
with  a  piece  of  hose  before  his  confession 
was  written.  This  evidence  was  offered  aft- 
er the  state  bad  rested,  and,  of  course,  long 
after  the  preliminary  issue  as  to  the  volun- 
tary character  of  Castelli's  confession  had 
been  tried  and  determined  in  favor  of  Its  ad- 
mlssibiUty.  Under  these  circumstances  the 
court  properly  Instructed  the  Jury  that,  if 
they  found  that  the  accused  were  frightened 


or  forced  to  make  their  confessions  by  the 
conduct  or  abuse  of  the  officer  having  them 
In  charge,  they  should  disregard  the  state- 
ments entirely  as  of  no  value. 

[9]  Referring  now  to  the  statements  and 
confessions  of  Vetere.  It  is  assigned  as  er- 
ror that  the  court  ruled  that  Vetere's  confes- 
sions were  voluntary.  In  support  of  these 
assignments  of  error  It  Is  said  that  Vetere 
was  aUowed  to  see  CastelU  in  tbe  act  oC 
making  a  statement  to  the  coroner;  that  tbe 
two  were  kept  apart,  and  not  aUowed  to  com- 
municate with  each  other;  that  Vetere  was 
not  given  anything  to  eat  from  7:30  p.  m., 
when  he  was  brought  into  tbe  pcdlce  head- 
quarters,  until  11  p.  m.;  that  his  examina- 
tion was  protracted  untU  3  a.  m.;  and  that 
the  attempted  proof  of  the  voluntary  chaiv 
acter  of  his  statements  failed,  because  of  the 
generality  of  the  questions  asked  of  the 
state's  witnesses.  Most  of  these  matters 
have  already  been  sufficiently  discussed.  Tbe 
length  of  time  occupied  in  these  examina- 
tions by  the  coroner  Is  accounted  for  in  part 
by  the  fact  that  he  took  the  statements  of 
CastelU  and  Vetere  separately,  partly  by  the 
mode  of  communication  adopted,  which  was 
by  writing  out  tbe  questions  and  then  hand- 
ing the  paper  to  the  accused  for  blm  to  write 
his  answer,  and  partly  by  the  fact  that  Ve- 
tere was  taken  out  to  supper.  As  to  the  al- 
leged deprivation  of  food,  it  appears  that  up 
to  the  time  when  Vetere  complained  that  be 
was  hungry  he  bad  made  no  incriminating 
statement;  that  he  offered  to  make  a  state- 
ment in  writing ;  that  the  coroner  wrote  out 
the  customary  warning,  and  Vetere  wrote  in 
reply: 

"I  want  to  get  food,  as  I  nearly  choked  to 
death,  and  I  got  awful  headache.  I  am  un- 
easy without  food,  and  if  1  get  food  I  would 
bo  excited  to  write  and  tell  aU  the  truth." 

He  was  Immediately  taken  out  to  supper, 
and  wrote  nothing  in  the  nature  of  a  confea- 
sion  untU  after  he  came  back.  This  being  so, 
it  cannot  be  said  that  his  confession  was  In 
any  degree  extorted  by  starvation.  On  the 
contrary,  tbe  coroner  was  careful  that  no 
confession  should  be  made  until  after  Vetere'a 
hunger  had  been  satisfied. 

[10]  It  Is  also  assigned  as  error  that  the 
confessions  of  tbe  accused  were  admitted  aa 
exhibits  and  allowed  to  go  to  the  Jury  room; 
tbe  alleged  wrong  being  that  undue  promi- 
nence was  thus  given  to  tbe  most  damag;lng 
portions  of  tbe  testimony.  There  was  no  er- 
ror In  this.  Writings  made  or  subscribed  by 
tbe  accused  are  ordinarily  admitted  as  ex- 
hibits. If  these  writings  were  harmful.  It 
was  not  because  any  rule  of  procedure  waa 
violated,  but  because  the  accused  had  fur- 
nished harmful  evidence  against  themselves. 

[11]  We  take  up  next  the  assignments  of  er- 
ror In  the  admission  of  evidence.  De  Marti- 
ni testified  that  he  wrote  on  a  piece  of  paper 
that  Vetere  was  telling  all,  and  showed  it  to 
CastelU,  who  wrote  back  on  a  piece  of  paper : 
"Me  afraid  of  chair;  teUall."  This  testimony 


Digitized  by 


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Conn.) 


STATE  T.  CASTELLI 


481 


was  objected  to  on  the  grounas  that  papers 
themselves  mnst  be  produced  and  to  prove 
their  loss  the  assistant  state's  attorney  was 
allowed  to  state  to  the  court  that  be  bad  been 
through  every  scrap  of  paper  the  state  had 
and  could  not  find  them.  The  testimony  was 
then  admitted.  There  was  no  error.  The 
evidence  of  loss  was  sufficient  to  support  the 
admission  of  secondary  evidence,  especially 
as  the  statement  itself  was  of  little  Impor- 
tance, because  followed  by  a  full  written  con- 
fession. 

[1 2]  As  to  the  -admission  of  the  summons 
In  the  suit  for  nonsupport  brought  by  Annie 
against  Castelll,  the  objection  that  It  tended 
to  prove  a  different  offense  from  that  with 
which  C5a8telll  was  charged  was  properly 
overruled.  The  paper  was  admissible,  being 
taken  from  GastelH's  person,  as  tending  to 
show  that  Castelll  had  reason  to  believe  that 
his  wife  bad  complained  to  the  police  against 
him  In  respect  of  the  matter  described  in  the 
summons.  The  probation  card,  also  taken 
from  him,  and  the  testimony  of  Enright  ex- 
plaining it,  were  admissible  on  the  same 
ground,  and  the  exemplified  copy  of  the  rec- 
ord of  the  New  Xork  court  in  the  nonsupport 
proceedings  was  directly  admissible  to  show 
the  relations  between  Castelll  and  bis  wife. 
Vetere's  assignments  of  error  Nos.  8  and  9 
are  not  weU  founded  in  the  record.  The 
dalm  is  that  De  Martini  was  permitted  to  tes- 
tify to  a  conversation  carried  on  in  writing, 
without  producing  the  writings,  but  the  rec- 
ord Is  that  the  witness  was  asked  whether 
any  threats  or  inducements  were  made  to 
Vetere  in  writing  or  otherwise,  and  that  he 
answered  "No." 

[13]  The  court  in  charging  the  jury  with 
reference  to  the  statements  or  confessions 
made  by  the  accused  used  the  phrase,  "They 
are  only  admissible  as  evidence  aCCectlng  the 
one  who  made  them ;"  and  this  is  claimed  as 
error  because  la  State  v.  Willis,  supra,  we 
said  that  such  statements  were  not  "testi- 
mony," but  facts  to  be  proved  by  testimony. 
The  distinction  drawn  in  SUte  v.  WlUis  is 
quite  correct,  and  that  distinction  was  care- 
fully observed  by  the  trial  court  not  only  In 
other  parts  of  the  charge,  but  also  in  the 
language  complained  of.  The  declarations  of 
the  accused  inconsistent  with  their  respec- 
tive pleas  of  not  guilty  were  not  testimony, 
but  when  proved  they  were  "evidence  affect- 
ing tbe  one  who  made  them"  in  the  same 
sense  that  any  other  relevant  fact  Inconsist- 
ent with  the  claims  of  an  accused  Is  evidence 
affecting  him. 

[1 4]  On  one  occasion  the  court  in  Its  charge 
used  the  phrase  "considerable  doubt"  Instead 
of  "reasonable  doubt,"  but  it  could  not  be  sup- 
posed by  the  Jury  ttiat  the  court  Intended  to 
mean  anything  more  or  less  than  that  reason- 
able doubt  which  it  had  been  at  great  pains 
to  explain  and  expound  to  them  at  great 
length. 

£16}  The  claim  that  the  court  unfavorably 
101  A.— 31 


commented  on  evidence  seems  to  ns  without 
foundation.  It  is  true  that  the  court  appar- 
ently failed  to  remember  Castelll's  claim  that 
he  had  bought  his  ticket  for  New  Haven  be- 
cause he  had  seen  Annie  and  Vetere  talking 
about  going  to  New  Haven,  but  such  a  slip 
as  that  in  commenting  on  the  evidence  after 
a  long  trial  is  not  reversible  error.  In  the 
first  place,  it  is  the  duty  of  the  Jury,  not 
of  the  court,  to  remember  the  evidence  cor- 
rectly, and,  in  the  second  place,  the  court  was 
very  careful  to  so  Inform  the  Jury  and  to  tell 
them  that  be  might  be  mistaken  in  his  recol- 
lection of  the  evidence,  and  that  they  must 
take  the  evidence  not  from  him  but  from  the 
witnesses. 

[ia]  The  court  did  not  err  in  refusing  to 
charge  as  requested  by  Castelll  upon  the  sub- 
ject of  reasonable  doubt  The  charge  of  the 
court  upon  that  point  was  correct  and  suffi- 
cient, and  the  court  Is  not  bound  to  use  the 
phraseology  of  counsel  In  preference  to  its 
own  in  stating  familiar  propositions  of  law 
to  the  Jury. 

[1  J]  Tbe  court  did  not  err  in  charging  the 
jury  that  in  order  to  reduce  Castelll's  crime 
from  murder  to  manslaughter  the  homicide 
must  have  taken  place  under  circumstances 
which  would  Justify  a  reasonable  belief  that 
adultery  was  being  committed.  That  is  the 
rule  expressed  in  State  v.  Tanz,  74  Conn.  177, 
60  Atl.  37,  54  L.  R.  A.  780,  92  Am.  St  B^. 
205,  and  State  v.  Saxon,  87  Conn.  15,  86  AtL 
500.  It  was  too  favorable  to  CastellL  A  hus- 
band who  on  his  own  story  suspects  that 
adultery  Is  going  to  be  committed,  follows 
his  wife  and  her  suspected  paramour  from 
New  Tork  to  New  Haven,  conceals  himself 
In  a  closet  armed  with  a  deadly  weapon, 
waiting  for  the  expected  provocation  to  ma- 
terialize, and  then  kills  his  wife,  cannot 
claim  the  benefit  of  the  rule  In  State  t.  Yanz. 

[1 B,  U]  As  to  Vetere's  assignments  of  er- 
ror Nos.  39-41,  the  court  correctly  charged 
the  Jury  that  Vetere  could  not  be  convicted 
on  Castelll's  unsupported  testimony.  This 
was  all  that  the  case  called  for.  Castelll 
was  not  a  witness  for  the  state.  He  could 
not,  while  Jointly  Indicted,  have  been  com- 
pelled to  testify.  But,  since  he  chose  to  tes- 
tify in  his  own  defense,  his  admissible  testi- 
mony was  relevant,  though  not  that  of  a  full 
witness,  so  far  as  it  tended  to  prove  or  dis- 
prove the  existence  of  the  conspiracy  out- 
lined in  Vetere's  confession. 

[20]  We  have  disposed  of  all  the  assign- 
ments of  error  pursued  on  the  briefs,  except 
those  relating  to  the  denials  of  the  motions 
to  set  the  verdicts  aside,  on  the  ground  that 
they  were  against  tbe  evidence.  These  mo- 
tions were  properly  denied.  The  rule  laid 
down  in  State  v.  Willis,  supra,  is  that  an  un- 
corroborated extrajudicial  confession  will  not 
support  a  conviction  of  murder  in  the  first 
degree.  But  these  confessions  were  abun- 
dantly corroborated.  The  identity  of  the 
victim  and  her  death  f-om  the  Injuries  in- 
flicted by  Castelli  are  established  without  re- 


Digitized  by 


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482 


101  ATLANTIC  REPOllTBR 


(G<ma 


sorting  to  the  confessions.  Castelll's  testimo- 
ny at  tbe  trial  admitting  tbe  kUllng  and 
pleading  provo<»tloa  left  only  tbe  degree  of 
the  crime  to  be  determined  by  tbe  Jury.  Was 
It  a  willful,  deliberate,  and  premeditated  kill- 
ing, as  his  confession  admitted,  or  was  it  the 
result  of  a  sudden  outburst  of  uncontrollable 
fury  caused  by  the  sl^t  of  his  wife  in 
Vetere's  arms?  The  Jury  could  give  but  one 
answer  to  that  question ;  for  Castelli  himself 
testified  that  he  concealed  himself  In  the 
closet  armed  with  a  deadly  weapon,  to  await 
the  return  of  Vetere  and  bis  wife ;  and  upon 
what  little  testimony  was  given  on  the  trial 
as  to  the  situation  of  the  parties  it  seems 
that  Vetere  was  standing  by  tbe  window  at 
some  distance  from  Annie  when  she  was 
struck. 

Vetere  also  admitted  on  the  witness  stand 
that  he  was  present  at  tbe  Idlllng.  His  testi- 
mony amounted  to  a  Judicial  confession  that 
he  was  an  accessory  after  the  fact,  and  the 
only  question  left  for  the  Jury  was  whether 
he  was  an  accessory  after  the  fact,  in  which 
case  he  was  not  guilty  of  any  crime  of  which 
he  stood  Indicted,  or  whether  he  was  a  prin- 
cipal under  our  statute  as  indicated  by  his 
confession  to  the  coroner.  All  the  physical 
facts  were  admitted.  The  determining  ques- 
tion was  whether  the  elopement  with  Annie 
was  a  genuine  affair  of  the  affections,  as 
Vetere  claimed  in  his  testimony,  or  whether 
it  was  a  pretense  contrived  to  bring  the  vic- 
tim to  her  place  of  execution,  as  Vetere  ad- 
mitted to  the  coroner. 

No  reasonable  explanation  consistent  with 
the  theory  of  a  genuine  elopement  can  be  giv- 
en of  Vetere's  own  testimony  as  to  what  took 
place  at  and  after  the  killing.  The  crucial 
scene  is  hurried  over  in  a  few  words.  He 
says  that  be  kissed  Annie ;  that  she  wanted 
to  take  a  nap  in  the  chair;  that  he  went 
over  to  the  window  seat ;  that  he  heard  and 
saw  nothing  until  he  looked  around  and  saw 
Castelli  standing  beside  bis  wife.  Annie  was 
then  sitting  with  a  drooping  head,  and  Cas- 
telli, pointing  to  the  door,  said  "KUled,  fin- 
ished," and  then,  "Hurry  up."  Apparently 
no  further  communication  passed  between 
them  until  they  reached  the  train.  Could 
there  be  stronger  corroboration  of  the  con- 
fession to  tbe  coroner  than  is  unconsciously 
furnished  by  Vetere's  testimony?  Not  an  in- 
dication of  surprise,  sorrow,  anger,  or  desire 
for  retributive  Justice,  but,  on  the  contrary, 
instant  acquiescence,  a  partition  of  Annie's 
Jewelry  and  money,  a  Joint  flight  from  the 
scene  of  tbe  crime  without  stopping  to  see 
whether  Annie  was  really  dead,  and  a  com- 
mon attempt  to  conceal  the  crime  by  writing 
a  postal  card  addressed  to  Castelli  intended 
to  account  for  Annie's  disappearance,  and  by 
appearing  together  at  a  social  entertainment 
that  same  evening. 

Tbe  fact  that  Vetere  left  Annie  alone  in 
the  restaurant  at  tbe  time  when,  according 
to  his  confession,  be  met  Castelli  and  told 
him  of  tbe  location  of  the  room,  and  how  to 


open  the  front  door,  was  also  proved.    With- 
out going  further  into  details,  it  seems  evi- 
dent that  the  motions  to  set  aside  the  ver- 
dicts were  properly  denied. 
There  is  no  error  in  either  appeal. 

PRENTICE,  C.  J.,  and  RORABACK  and 
SHUMWAX,  JJ.,  concurred. 

WHEISLBR,  3.  (dissenting).  One  ground 
of  error  in  Vetere's  appeal  and  one  in  Cas- 
telll's, in  my  Judgment,  entitles  each  to  a 
new  trial.  Vetere  seasonably  moved  for  a 
separate  trial.  The  granting  of  sudi  a  mo- 
tion Is  ordinarily  a  matter  of  discretion.  But 
if  the  defenses  of  the  accused  are  antagonis- 
tic, or  the  evidence  to  be  introduced  against 
one  is  not  admissible  against  the  other,  sejiw- 
rate  trials  may  be  ordered.  Where  a  Joint 
trial  will  probably  be  prejudicial  to  one  or 
more  of  the  accused,  the  motion  should  be 
granted.  State  v.  Brauneis,  84  Conn.  222, 
226,  79  AU.  70. 

I  agree  with  the  majority  opinion  that  the 
mere  fact  that  evidence  will  be  admissible 
against  one  accused  which  will  not  be  ad- 
missible against  another  will  not  necessarily 
furnish  a  ground  for  granting  a  separate 
trial ;  for  the  court  by  limiting  Its  admission 
and  pointing  out  to  the  Jury  at  the  time  of 
its  admission  and  its  charge  the  precise  use 
to  be  made  of  the  testimony  may  make  it 
reasonably  certain  that  tbe  Jury  did  not 
reach  its  conclusion  by  tbe  improper  use  of 
this  evidence. 

So  that  in  a  given  case  tbe  test  for  the 
trial  court  is,  Will  the  Joint  trial  probaUy 
result  In  substantial  Injustice,  that  is,  will 
the  Jury  be  unable  to  separate  the  evidence, 
and  be  likely  to  use  tbe  evidence  admissible 
against  one  accused  against  another,  against 
whom  it  is  not  admissible? 

I.  I  agree  with  the  majority  that  the 
ground  of  the  motion  for  a  separate  trial 
should  develop  the  existence  and  effect  of 
such  evidence  so  that  the  court  will  be  placed 
In  a  position  to  determine  the  probability  that 
substantial  injustice  will  be  done  to  the  mov- 
ing party.   The  majority  hold  that: 

"It  does  not  appear  from  the  record  that  the 
trial  court  was  so  advised  in  this  case." 

I  think  this  conclusion  does  not  accord 
with  the  facts  of  record. 

At  the  beginning  of  the  trial  Mr.  Hoyt, 
counsel  for  Vetere,  thus  addressed  the  court : 

"Before  we  proceed  to  draw  the  jurors,  I 
should  like  to  make  a  motion  m  this  case.  I 
should  like  to  make  a  motion  that  the  accused 
bo  tried  separately,  first,  upon  the  ground  that 
there  is  evidence  in  this  case,  as  is  apparent 
from  the  coroner's  finding  and  notes,  which  is 
admissible  SKuinst  one  and  not  admissible 
against  the  other,  in  the  nature  of  statements 
and  other  evidence  decidedly  of  a  character  that 
is  not  admissible  against  both.  As  I  understand 
tbe  law  in  State  v.  Brauneis  in  84  Conn.  222, 
79  Atl.  70,  it  is,  of  course,  a  matter  of  discre- 
tion for  the  court  Our  Supreme  Court  baa 
said  that  where  it  would  be  prejudicial  to  the 
interests  of  the  accused  to  try  them  together, 
then  they  should  be  tried  separately.     Now,  I 


Digitized  by 


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CoimO 


STATE  V.  CASTBLLI 


483 


therefore  more  that  they  b«  tried  separately,  on 
behalf  of  Vetere  at  least" 

Replying,  the  Btate's  attorney  conceded 
that: 

The  two  accused  "did  make  separate  state- 
ments in  writing  •  •  •  anj  other  statements 
by  sig:n8  to  the  authorities  in  New  Tork  during 
the  coroner's  inquest" 

Mr.  Hoyt  replied: 

"I  cannot  add  anything,  your  honor,  to  what 
I  have  already  said,  except  this:  The  state's 
attorney  has  suggested  that  in  the  event  of 
admissions  or  conversations  of  one  being  admit- 
ted which  would  not  be  admissible  against  the 
other  that  the  caution  of  the  court  would  teike 
care  of  it  Now,  it  does  not  seem  to  me  that 
while  your  honor  in  the  caution  is  doing  every- 
thing you  could  to  prevent  it  being  used  against 
the  other  man,  it  certainly  does  get  to  the  ears 
of  the  jury,  and  it  is  pretty  hard  for  any  human 
being  to  dismiss  that  from  their  minds,  provided, 
of  course,  such  statements  are  admissible." 

The  mllng  of  the  court  ui>on  the  matlon 
shows  that  It  fally  appreciated  the  ground 
of  the  motion,  viz.  to  prevent  the  iftate  In- 
troducing statements  and  evldoice  whldi 
were  admissible  against  one  accused  and 
not  against  the  other. 

The  state's  attorney  has  argued  this  point 
as  wholly  within  the  discretion  of  the  conrt 
He  has  not  daimed  that  the  trial  court  was 
not  apprised  of  the  ground  of  the  motion 
or  the  character  of  the  evidence  to  be  of- 
fered. Mr.  Hoyt  expressly  called  the  court's 
attention  to  the  coroner's  finding  and  notes, 
and  we  may  assume  that  the  court,  learned 
and  experienced  judge,  and  for  a  long  period 
a  dlatlnguished  state's  attorney,  bad  these 
before  It 

The  court  then  knew  that  there  were  dif- 
ferent statements  in  the  nature  of  written 
confessions  and  oral  statements  claimed  by 
the  state  to  have  been  made  by  these  ac- 
cused, some  of  which  might  be  admissible 
against  one  accused  and  not  against  another 
and  others  of  which  might  be  admissible 
against  one  and  not  against  another,  and  the 
court  knew  that  the  state  Intended  to  offer 
evidence  that  Castelli  had  been  taken  to 
the  scene  of  the  tragedy  and  had  there  re- 
enacted  all  that  was  done  by  him  and  by 
Vetere  at  and  about  the  time  of  the  killing. 
I  have  never  known  a  case  where  it  was 
more  apparent  at  the  Inception  of  the  trial 
tliat  It  would  probably  be  difficult,  If  not 
impossible,  to  disassociate  the  evidence  thus 
offered  against  one  accused  from  the  evi- 
dence offered  against  the  other.  It  was  the 
duty  of  the  court,  when  this  condition  ap- 
peared, to  grant  separate  trials  to  these 
accused. 

Upon  an  examination  of  the  evidence  It 
appears  that  during  the  taking  of  the  evi- 
dence In  at  least  21  instances  the  court 
Instructed  the  Jury  that  certain  evidence  ad- 
mitted was  admissible  against  Castelll,  and 
not  against  Vetere,  and  In  at  least  ten  In- 
stances the  court  instructed  the  Jury  that  cer- 
tain  evidence  admitted  was  admissible  against 
Vetere  and  not  against  Castelll.    And  these 


were  not  the  only  occasions  when  such  In- 
struction would  have  been  pertinent 

The  amended  finding  recites: 

"(1)  Upon  the  trial  much  evidence  was  admit- 
ted against  the  defendant  Joseph  Castelli  only. 
This  was  done  against  the  objection  of  counsel 
for  the  defendant  Frank  Vetere,  made  upon 
tho  ground  that  such  evidence  was  prejudicial 
to  the  defendant  Frank  Vetere,  and  that  the 
mere  fact  that  such  evidence  was  admitted  only 
against  the  defendant  Joseph  Castelli  did  not 
properly  protect  tho  defendant  Frank  Vetere's 
rights,  because  the  jury,  having  heard  such  evi- 
dence and  considered  it  against  the  defendant 
Joseph  Castelli,  would  be  unable  wholly  to  dis- 
miss it  from  their  minds  in  consideration  of  tho 
evidence  against  the  defendant  Frank  Vetere." 

The  court  states  tha/t  under  Its  ruling 
about  half  of  the  596  pages  of  the  printed 
testimony  was  admitted.  The  finding  fur- 
ther states : 

"The  substance  of  this  evidence  which  Is 
claimed  to  have  been  harmful  to  tho  defendant 
Frank  Vetere,  is  as  follows:  That  the  defend- 
ant Joseph  Castelli  had  killed  his  wife,  of  whose 
murder  he  and  the  defendant  Frank  Vetere  were 
jointly  charged,  because  he  was  mad  at  her  for 
telling  the  deaf  people  abont  him,  and  because 
she  had  ^iven  him  a  disease;  •  *  •  that  he 
had  admitted  this  was  the  reason;  that  said 
Jcseph  Castelli  had  treated  his  wife  very  badly, 
and  had  been  arrested  at  her  instigation  for 
nonsupport,  and  had  been  sent  to  tho  work- 
house as  a  result  thereof;  that  Joseph  Castelll 
had  struck  his  wife  on  occasions;  that  said 
Joseph  Castelli  had  been  taken  by  the  police 
authorities  of  New  Haven  over  the  route  tiie 
state  claimed  was  taken  by  him  in  going  to  the 
scene  of  the  crime,  and  that  he  had  acted  out 
the  tragedy  by  showing  how  he  struck  his  wife 
from  behind  on  the  head  several  times  with  an 
instrument;  that  thereupon  he  and  tjie  defend- 
ant Frank  Vetere  left  the  scene  of  the  crime 
together  and  went  to  New  Tork  together;  that 
the  defendant  Joseph  Castelli  had  stated  that 
he  had  planned  to  have  Frank  Vetere  take  Jo- 
seph Castelli's  wife  to  New  Haven  on  the  day  of 
tho  killing,  and  that  he  told  defendant  Frank 
Vetere  that  he  was  going  to  kill  her  at  that 
place,  and  had  told  Frank  Vetere  to  find  a  room 
in  New  Haven  where  the  killing  could  be  ac- 
complished, and  that  defendant  Frank  Vetero 
came  to  him  while  his  wife  was  at  dinner  and 
gave  him  the  key  to  the  room  so  that  he  could 
get  into  it  and  that  after  Joseph  Castelli  had 
killed  his  wife  he  took  all  her  money  and  jewel- 
ry, and  he  and  Frank  Vetere  went  to  New  York 
together,  and  that  on  the  way  there  he  gave  the 
jewelry  to  defendant  Frank  Vetere;  that  said 
defendant  Joseph  Castelli  had  stated  that  he  had 
paid  for  PVank  Vetere's  ticket  to  New  Haven 
on  the  day  of  the  killing,  and  also  for  the  meal 
Frank  Vetere  had  with  Joseph  Castelli's  wife  in 
New  Haven;  and  that  defendant  Frank  Vetere 
wrote  Exhibit  40,  which  is  made  a  part  of  this 
finding,  at  the  direction  of  said  Joseph  CastelU, 
addressing  the  postal  to  Joseph  Cfastelli  and 
signing  it  as  coming  from  Joseph  Castelli's 
wife." 

All  of  this  evidence  was  vitally  prejudi- 
cial to  Vetere,  and  It  Is  unreasonable  to  ex- 
pect that  the  jury  could  have  heard  this  evi- 
dence and  kept  it  wholly  separate.  No  mat- 
ter how  carefully  the  trial  court  cautioned 
the  Jury  as  to  its  duty  to  do  this,  the  Jury 
could  not  have  kept  wholly  separated  In  Its 
nUnd  the  evidence  admissible  solely  against 
Castelll  and  that  solely  against  Vetere.  It 
could  not  do  It,  because  the  jiuman  mind 
cannot  even  read  this  record  and  do  it,  and 


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101  ATIiANTIO  REPORTER 


(Conn. 


the  printed  page  Is  cold  and  dull  compared 
with  same  testimony  given  In  open  court.  I 
think  the  record  shows  that  the  court  wan 
fully  advised  preceding  and  during  the  trial 
of  the  nature  and  character  of  this  evidence, 
and  was  in/  a  position  to  determine  that  sub- 
stantial injustice  would  be  done  to  Vetere  on 
a  Joint  trial. 

The  majority  opinion  concedes  that: 

"Ordinarily  the  fact  that  one  of  the  accused 
has  made  a  confession  IncrlmiDating  the  other 
would  be  a  good  ground  for  granting  a  separate 
trial." 

But  it  excludes  Vetere  from  the  benefit  of 
this  rule  because: 

"Each  of  the  accused  had  made  a  full  writ- 
ten confession  of  facts  which,  if  legally  corrobo- 
rated, was  sufScient  to  convict  cither  one  of 
them  of  murder  in  the  first  degree.  It  follows 
that  no  material  fact  incnminatmg  either  one 
of  the  accused  came  to  the  knowledge  of  the 
Jury  because  they  were  tried  together,  which 
would  not  also  have  come  to  the  knowledge  of 
a  jury  if  each  had  been  separately  tried  and  his 
own  confession  admitted  against  him." 

If  this  means  that  because  each  confession 
covered  the  same  facts  it  was  immaterial  If 
both  were  received  in  evidence,  since  the  jury 
had  before  It  the  admissible  confesblon, 
which,  If  corroborated,  was  sufficient  to  con- 
vict, it  would  seem  to  assume  that  the  Jury 
found  the  admissible  confession  proven  and 
corroborated  without  reference  to  the  inad- 
missible confession.  Unfortunately  we  can- 
not Imow  what  the  Jury  found  proven,  and 
we  cannot  tell  what  part  the  inndmlssible 
confessions'  played  in  helping  them  reach 
their  conclusion.  The  evidence  of  this  char- 
acter excepted  to  not  only  covered  written 
confessions,  but  written  statements  of  facts 
and  acts  and  a  pantomime  of  the  entire  trag- 
edy. It  cannot  be  found  that  all  of  this  in- 
admissible evidence  was  contained  In  Vetere'a 
confession,  nor  can  it  be  found  that  his  con- 
fession was  not  illustrated,  explained,  and 
corroborated  by  this  inadmissible  evidence, 
some  of  it  Intensive  in  kind  and  dramatic  in 
quality. 

The  logic  of  this  argument  is  somewhat  dis- 
tnrbed  as  we  read  the  qnestions  asked  Cas- 
telll  by  the  coroner: 

"Didn't  you  make  up  your  mind  to  kill  her 
before  that,  and  didn't  you  tell  Frank  Vetere 
that  you  were  going  to  do  it?  No.  Yes.  Did 
you  plan  to  have  Frank  Vetere  take  her  to 
New  Haven  for  you  lost  Sunday?  Yes;  by 
me.  Did  Frank  know  that  he  was  to  take  her 
to  New  Haven  and  you  were  to  kill  her  there? 
Yes." 

And  throughout  the  route  which  the  cor- 
oner took  Castelli  over  in  enacting  the  pan- 
tomime of  the  killing  and  what  preceded  and 
followed  It  the  coroner  constantly  asked 
about  Vetere,  where  he  was,  what  he  did, 
and  his  part  in  the  tragedy.  These  references 
are  simply  illustrative  of  this  entire  record. 
How  can  it  be  said  that  Its  introduction  was 
not  prejudicial  to  Vetere?  OastelU  did  not 
move  for  a  separate  trial;  he  must  be  held 
to  have  waived  any  prejudice  to  his  rights 
from  the  Joint  trial. 


2.  Vetere  and  Castelli  were  taken  In  cus- 
tody  In  New  York,  and  while  in  custody,  but 
not  under  arrest,  Coroner  Mix  of  New  Haven 
on  April  26tb  took  their  statements  in  New 
York,  first  stating  to  them  that  be  was  the 
coroner  for  New  Haven  county.  Conn.,  and 
engaged  in  Inquiring  as  to  the  death  of  Annie 
Castelli ;  that  be  could  not  compel  them  to, 
and  they  were  not  obliged  to,  say  anything 
about  it,  unless  they  wished  to,  and  he  in- 
quired if  they  were  willing  to  tell  what  they 
knew  about  It  Subsequently  by  extradition 
proceedings  the  accused  were  brought  to  New 
Haven,  and  Castelli  was  taken  on  May  3d  to 
the  office  of  the  coroner,  who  wrote  on  a 
piece  of  paper  for  Castelli: 

"I  am  going  to  take  you  the  Tay  yon  took 
when  you  came  to  New  Haven  and  to  Crown 
street.    Will  you  show  me?" 

And  Castelli  nodded  his  assent,  and  short- 
ly thereafter  the  coroner,  with  others,  ac- 
companied Castelli  over  the  said  route  and 
questioned  Castelli  in  detail  as  to  what  he 
and  Vetere  did,  where  they  went,  etc. ;  in 
short,  be  caused  Castelli  to  enact  the  pan- 
tomime of  the  tragedy  and  what  took  place 
whUe  they  were  in  New  Haven.  All  of  this 
evidence  was  duly  objected  to,  and  exceptions 
noted.  The  court  found  that  Castelli  did  all 
of  this  voluntarily. 

This  Is  an  instance  where  a  quasi  Judldat 
officer  of  the  state  procures  an  accused  to 
Inoriminate  himself  without  warning  him 
that  his  acts  and  words  would  be  used 
against  him.  It  .cannot  in  fairness  be  held 
that  the  caution  given  by  Coroner  Mix  in  the 
police  station  in  New  York  about  his  giving 
his  statement  must  have  been  in  the  mind  of 
this  deaf  and  dumb  man  when  seven  days 
after  the  coroner  In  New  Haven  told  him: 

*T  am  going  to  take  you  the  way  you  took 
when  you  came  to  New  Haven  and  Crown 
street." 

He  was  then  entitled  to  a  warning  tbat 
he  did  not  need  to  enact  the  tragedy  of  his 
crime  in  order  to  furnish  the  state  evidence 
of  his  galVt. 

A  statement  made  to  a  coroner  by  an  ac- 
cused under  arrest  without  a  warning  from 
him  that  he  need  not  make  it  cannot  be  held 
to  be  legally  voluntary.  So  acts,  conduct, 
and  statements  explanatory  thereof,  made  at 
the  solicitation,  persuasion,  or  command  of 
a  coroner,  cannot  be  held  to  be  legally  vol- 
untary if  made  without  such  warning. 

The  only  evidence  before  the  trial  court 
as  to  the  voluntary  character  of  this  evidence 
was  the  statement  that  no  promises  or  in- 
dncements  were  held  out  to  OastelU  to  do 
or  say  what  he  then  did.  This  evidence,  I 
think,  procured  by  the  coroner  without  warn- 
ing, was  Insufficient  and  inadmissible  because 
in  derogation  of  our  rule  as  to  involuntary 
confessions.  It  was  a  violation  of  the  rlphta 
guaranteed  to  Castelli  by  article  1  of  our  Con- 
stitution. 


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CODD.) 


PIERSON  V.  PIERSON  ENaiNEERINO  &  CONSTRUCTION  CO. 


485 


(91  Conn.  K) 

OTT    T.    CONNECTICUT   CO. 

(Supreme  Court  of  Errors  of  Connecticut.    July 
6,  1917.) 

Appeal  and  Ebbob  «=3999(2)— Scope  of  Re- 
view—Findings  OF  Fact. 
Unless  the  jury's  conclusion  could  not  hare 

been  reached  reasonably  and  without  partiality, 

corruption,  or  other  improprietieB,  its  conclusion 

must  stand. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 

Error,  Cent.  Dig.  {  3910.] 

Appeal  from  Superior  Court,  New  HaTOi 
County;   Gardiner  Greene,  Judge. 

Actton  by  Max  Ott  against  the  Connecticut 
Company.  Judgment  for  plalntUT  for  $800, 
and  defendant  appeals.    No  error. 

Harrison  T.  Sheldon,  of  New  Haven,  for 
appellant.  Charles  S.  Hamilton,  of  New  Ha- 
ven, for  appellee. 

PER  CURIAM.  The  defendant  ODncedes 
tliat  the  evidence  presented  to  establish  its 
negligence  was  such  as  to  entitle  the  plaln- 
tUT to  go  to  the  Jury  upon  that  issue,  and 
that  clearly  was  the  case.  Upon  the  issue 
as  to  the  absence  of  contributory  negligence, 
evidence  was  before  the  Jury  which,  If  be- 
lieved, would  furnish  a  reasonable  basis  for 
the  affirmative  conclusion  at  which  it  arriv- 
ed. Although  we  are  not  as  strongly  im- 
pressed by  the  trustworthiness  of  some  per- 
tinent portions  of  that  evidence  as  it  appar- 
ently was,  we  cannot  forget  that  it  was  its 
office  to  determine  what  the  evidence  estab- 
lished, and  that  Its  conclusion  must  stand 
unless  it  appears  that  that  conclusion  was 
one  which  it  could  not  have  reached  reason- 
ably and  without  Indicating  that  its  members 
were  Influenced  thereto  by  partiality,  cormi>- 
tion,  prejudice,  or  otherwise  improperly. 

We  cannot  say  that  the  trial  court  erred 
in  ruling  that  the  Jury's  conclusion  that  the 
plaintiff  was  in  the  exercise  of  due  care  was 
not  one  which,  under  the  accepted  rules  of 
law,  it  should  disturb. 

There  is  no  error. 


(92   Conn.  96) 

PIEJRSON  V.   PIERSON  ENGINEERING  & 
CONSTRUCTION  CO. 

(Supreme  Court  of  Errors  of  Connecticut    July 
6,  1917.) 

1.  Beckivebs  «=3l74(4)— PEBiassioN  to  Stm— 

DiSCBETION   OF  CklUBT. 

Whether  a  court  will  permit  its  receiver  to 
be  sued  is  largely  a  matter  of  discretion. 

[Ed.  Note.— For   other  cases,    seo  Receivers, 
Cent  Dig.  {  338.] 

2.  Beceivebs   <8=»174(4)   —   Applioation   to 
Sue  IN  Anotbeb  Ooubt— Discbbtion. 

Where  the  action  related  to  the  title  or  right 
of  possession  of  property  which  had  already  been 
taken  into  the  custody  of  the  state  court,  it 
properly  refused  to  permit  its  receiver  to  be  sued 
in  the  United  States  District  (3ourt,  the  rule 
"that  where  a  court  has  once  acquired  jurisdic- 
tion over  a  particular  subject-matter  it  retains 


it  free  from  interference  by  any  other  court" 
being  applicable. 

[Ed.  Note.— For  other  cases,  see  Receivers, 
Cent.  Dig.  |  336.] 

Appeal  from  Superior  Court,  Hartford 
County;   Milton  A.  Sbumway,  Judge. 

Action  by  Martin  E.  Plerson  against  the 
Pierson  Ekigineerlng  &  Clonstructlon  Compa- 
ny. The  application  for  a  temporary  receiv- 
er was  granted,  and  Maurice  E.  Davis  peti- 
tioned the  court  for  leave  to  sue  the  re- 
ceiver. Petition  denied,  and  Davis  appeals^ 
No  error. 

On  April  27,  1916,  a  temporary  recover, 
afterward  confirmed  and  appointed  perma- 
nent receiver,  was  appointed  over  the  Pler- 
son Engineering  &  Construction  Company, 
a  corporation  largely  engaged  in  construction 
work,  whose  machinery,  tools,  and  equipment 
were  located  at  various  places  where  the 
work  was  then  in  progress.  One  Maurice  El 
Davis  applied  to  the  court  for  an  order  re- 
quiring the  receiver  to  deliver  to  him  certain 
property  described  in  a  so-called  condition- 
al bill  of  sale.  The  application  was  denied, 
and  his  petition  for  leave  to  sue  the  receiv- 
er was  then  filed  and  denied.  The  property 
in  question  appears  from  the  papers  to  In- 
clude a  large  part.  If  not  all,  of  the  tangible 
assets   now   In   the   hands   of   the   receiver. 

Alvan  Waldo  Hyde,  of  Hartford,  for  ap- 
I)ellant.  Lucius  F.  Robinson,  of  Hartford, 
for  appellee  Holden. 

BEACH,  J.  (after  stating  the  facts  as 
above).  The  petition  is  singularly  brief. 
It  ^mply  alleges  that  the  petitioner  entered 
Into  an  agreement,  recorded  and  acknowledg- 
ed according  to  law,  with  the  defendant 
company,  whereby  it  was  agreed  that  certain 
goods  and  chattels  delivered  by  Davis  to  the 
company  should  remain  the  property  of  Da- 
vis until  certain  payments  had  been  made 
by  the  defendant;  and  that  neither  the  de- 
fendant nor  the  receiver  has  made  the  pay- 
ments, although  the  receiver  Is  now  In  pos- 
session of  the  property.  Wherefore  the  pe- 
tltlcmer  prays  for  leave  to  bring  suit  to 
determine  bis  rights  under  the  contract. 

There  is  no  allegation  or  finding  that  Da- 
vis was  the  owner  of  the  property  at  the  time 
when  the  agreement  was  executed,  or  that 
the  payments  to  be  made  were  installments 
of  an  agreed  purchase  price.  On  the  con- 
trary, the  agreement  refers  to  "construction 
work  now  In  progress  in  the  town  of  Bur- 
lington," and  recites  that  a  large  part  of 
the  equipment  is  located  there.  So  far  as 
this  record  shows,  the  transaction  between 
Davis  and  the  Plerson  Engineering  &  Ck>n- 
structlon  Company  may  have  been  an  attempt 
to  secure  Davis  for  past  or  present  advanc- 
es by  giving  him  a  conditional  bill  of  sale 
Instead  of  a  chattel  mortgage.  It  also  ap- 
pears from  the  finding  that  the  property  de- 
scribed In  the  agreement  was,  at  the  time  of 


testVoT  otliar  oasM  laa  same  toplo  and  RBT-NUIIBE&  In  all  Ker-Numbered  Dlgeats  and  IndezaB 


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isa 


101  ATIANTIC  REPOHTER 


(ConB. 


filing  the  petition,  In  use  by  the  receiver  In 
carrying  out  contracts  made  by  the  defend- 
ant before  the  receivership. 

The  petition  does  not  indicate  what  partic- 
ular kind  of  an  action  tlie  petitioner  de- 
sires to  bring  against  the  receiver.  The 
prayer  for  relief  Is  broad  enough  to  Include, 
if  granted,  permission  to  bring  replerio,  and 
take  the  property  out  of  the  custody  of  the 
court  pending  the  determination  of  the  pe- 
titioner's rights  under  the  contract  Under 
the  circumstances,  a  summary  dl^ossession 
of  the  receiver  by  replevin  is  out  of  the  ques- 
tion. The  property  is  already  In  the  cus- 
tody of  the  court,  which  Is  making  use  of 
It  in  carrying  out  the  defendant's  contracts, 
in  an  attempt  to  conserve  the  defendant's 
assets  for  the  benefit  of  all  concerned. 

[1]  Finally,  the  question  whether  a  court 
will  i>ermit  Its  receiver  to  be  sued  Is  largely 
a  matter  of  discretion.  There  Is  no  reason 
why  the  superior  court,  being  in  possession 
of  the  property  and  able  to  administer  full 
relief  to  the  petitioner,  should  allow  him  to 
bring  another  action  in  the  same  court  to 
try  out  hla  alleged  title  to  or  Interest  in  the 
property. 

[2]  Presumably,  the  desire  is  to  bring  an 
acticm  in  the  District  Court  of  the  United 
States;  Davis  bdng  described  In  bis  petition 
as  a  citizen  of  New  York.  In  such  cases 
much  depends  on  the  character  of  the  ac- 
tion. If  in  the  nature  of  a  suit  in  personam 
not  affecting  specific  assets,  the  court  of 
the  receivership  may  consistently  allow  its 
receiver  to  be  sued  In  another  court  In  the 
exercise  of  Its  discretion.  But  if,  as  in 
this  case,  the  action  relates  to  the  title  to 
or  right  of  possession  of  property  which  has 
already  been  taken  into  the  custody  of  the 
court,  "the  rule  that,  where  a  court  has 
once  acquired  Jurisdiction  over  a  particular 
subject-matter,  it  retains  it  free  from  Inter- 
ference by  any  other  court,  is  that  which 
governs."  Links  v.  Connecticut  River  Bank- 
ing Co.,  66  Conn.  277,  33  Ati.  1003. 

There  is  no  error.  The  other  Judges  con- 
curred. 


(82  Conn.  47) 

STATE  V.  TRIPLETT. 

(Sopreme  Court  of  Errorti  of  Connecticut.    July 
6,  1917.) 

CoNSFiRACT  iS=»47— Raps  4=953(3)— Assault 

—Intent— Evidence. 
Evidence,  on  prosecution  ■  for  conspiracy  to 
commit  rape  and  for  assault  to  commit  rape,  the 
overt  acts  being  committed  by  another,  and  any 
liability  of  defendant  being  tliat  of  accessory, 
and  tlie  purpose  of  the  parties,  as  shown  by  the 
evidence,  being  to  obtain  evidence  against  the 
woman's  character,  held  not  to  establish  the 
necessary  element  of  intent  to  rape. 

[Ed.  Note. — For  other  cases,  see  Conspiracy. 
Cent.  Dig.  §S  105-107;   Rape,  Cent.  Dig.  {  80.] 

Appeal  from  Superior  Court,  New  Haven 
County ;  Edwin  B.  Gager,  Judge. 
Hampden  Triplett,  alias  Granville  Xrlplett, 


was  prosecuted  on  Information  in  three  counts 
charging:  First,  a  conspiracy  to  commit 
assault ;  second,  a  conspiracy  to  commit  rape ; 
and,  third,  an  assault  with  intent  to  commit 
rape.  He  was  convicted  on  the  seccmd  and 
third  counts,  and  appeals.  Reversed,  and 
new  trial  ordered. 

Dorothy  A.  Triplett,  residing  in  New  York 
City,  is  the  wife  of  John  B.  Triplett,  a  clergy- 
man residing  In  New  Jersey.  The  accused 
is  the  brother  of  John  B.  Triplett  and  a 
lawyer  resident  of  and  practicing  in  New 
York  City.  In  February,  1914,  Mrs.  Triplett 
left  her  husband,  taking  with  her  their  child, 
and  went  to  reside  with  her  mother  in  New 
York.  A  few  months  later  she  began  pro- 
ceedings in  the  courts  of  New  York  for  a 
separation  from  her  husband  upon  the  groimd 
of  his  cruel  and  inhuman  treatment  and  non- 
support  of  her,  for  the  custody  of  their  minor 
child,  and  for  an  allowance  for  the  support 
of  herself  and  child.  The  accused,  acting  in 
his  brother's  Interest,  took  steps  to  defeat 
that  proceeding,  and  employed  one,  Intown 
in  the  present  case  by  the  name  of  Wilson, 
to  watdi  Mrs.  Triplett,  and  to  secure  evi- 
dence which  might  be  used  against  her. 

The  state  offered  evidence  to  prove,  and 
claimed  to  have  proved,  that  the  accused  and 
Wilson  conspired  together  to  secure  evidence 
touching  Mrs.  Trlplett's  chastity  which  could 
be  so  used,  and  to  that  end  it  was  planned 
and  arranged  between  them  that  Wilson, 
under  the  guise  of  a  real  estate  agent,  should 
lure  Mrs.  Triplett  to  New  Haven  upon  the 
false  pretense  that  she  was  to  meet  a  Mrs. 
Allen,  residing  there  or  near  there,  who  was 
a  possible  purchaser  of  a  piece  of  prop- 
erty in  Canada  belonging  to  Mrs.  Trlplett's 
mother;  that  Wilson  succeeded  in  arranging 
for  a  meeting  between  Mrs.  Triplett  and  the 
pretended  prospective  purchaser  at  the  Hotel 
Garde  in  New  Haven,  where  they  were  to 
meet,  the  former  being  accompanied  by 
Wilson;  that  Mrs.  Triplett  so  accompanied 
went  to  New  Ilaven  and  to  the  hotel  for  the 
purpose  of  lilling  this  pretended  appoint- 
ment; that  upon  their  arrival  at  the  hotel 
Wilson  reported  that  Mrs.  Allen  had  not  yet 
arrived,  and  that  they  thereupon  went  In- 
to the  dining  room;  that  Wilson  thereafter 
left  the  dining  room  upon  some  pretense 
and  went  to  the  desk  and  registered  himself 
and  Mrs.  Triplett  as  husband  and  wife  un- 
der an  assumed  name,  and  received  the  assign- 
ment  of  a  room ;  that  meanwhile  the  accused 
and  two  New  York  men,  whom  he  had  em- 
ployed for  tho  purpose,  lutown  as  Campbell 
and  Donahue,  had  arrived  at  the  hotel  by 
prearrangeiuent  and  taken  a  room;  that  at 
the  time  Wilson  registered  he  conferred  witli 
Triplett  or  one  of  his  associates  as  to  the 
program  which  was  to  be  followed ;  that  Wil- 
son returned  to  the  dining  room  and  reported 
that  Mrs.  Allen  bad  arrived  and  was  in  ber 


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STATE  ▼.  TRIPtiETT 


48T 


room  upstairs  waiting  for  them;  that  Wil- 
son and  Mrs.  Trlplett  then  went,  as  the  latter 
supposed,  to  meet  Mrs.  Allen;  that  Wilson 
showed  the  way  to  the  room  which  had  been 
assigned  to  blm ;  that,  as  WUson  opened  the 
door  and  Mrs.  Trlplett  entered,  she  fonnd 
that  no  one  was  there  to  receive  her  and  that 
the  room  was  an  unoccupied  bedroom;  that 
she  turned  to  leave,  facing  WUson,  who  bad 
followed  her  through  the  door;  that  as  she 
was  about  to  depart  Wilson  pushed  her  upon 
the  bed  and  seized  her  violently  to  keep  her 
there;  that  a  vigorous  struggle  ensued,  dur- 
ing which  Mrs.  Trlplett  was  badly  bruised 
and  lacerated  upon  one  of  her  legs  and  thighs 
over  a  considerable  area,  bruised  in  h^ 
right  arm,  and  her  clothing  In  places  torn; 
that  while  this  struggle  was  proceeding  Trlp- 
lett and  bis  associates  appeared  at  the  un- 
loclted  door,  knocked,  and  entered ;  that  the 
struggle  between  Wilson  and  Mrs.  Trlplett 
then  censed,  Wilson  remarking,  "I  got  her," 
and  the  accused  replying,  "I  knew  damn  well 
you'd  get  her ;"  that  Mrs.  Trlplett  then  pass- 
ed into  the  ball,  and  out  of  the  hotel  to 
the  station,  where  she  later  took  a  train  for 
New  York ;  and  that  the  accused  followed  her 
downstairs,  went  to  the  desk,  called  the  at- 
tention of  the  clerk  to  the  occupancy  of  the 
room  by  a  couple  not  man  and  wife,  and 
later  returned  home 

The  claim  of  the  accused,  overwhelmingly 
contradicted  by  the  state's  testimony,  was 
that  after  having  employed  Wilson  he  be- 
came suspicious  of  his  unfaithfulness  In  that 
employment,  and  that  he  had  entered  Into 
lUiclt  relations  with  Mrs.  Triplett ;  that,  hav- 
ing overheard  a  telephone  conversation  be- 
tween them  making  an  appointment  to  go  to 
New  Haven  by  a  specified  train,  he  determined 
to  follow  them  and  hastily  employed  Camp- 
bell and  Donahue  to  assist  him  In  tracing 
their  movements;  that  they  succeeded  in  trac- 
ing them  to  the  hotel  and  in  locating  them  in 
a  room  which  they  visited,  only  to  find  Wil- 
son and  Mrs.  Trlplett  In  bed  together  and 
undressed. 

Spotswood  D.  Bowers,  of  Bridgeport,  for 
appellant.  Amon  A.  Ailing,  State's  Atty.,  and 
Walter  M.  Pickett,  Asst.  State's  Atty.,  both 
of  New  Haven,  for  the  State. 

PRENTICES,  C.  J.    (after  stating  the  facts 
as  above).     The  defendant  was   convicted 
upon  two  counts,  one  for  conspiracy  to  com- 
mit the  crime  of  rape  upon  the  person  of 
Dorothy  A.  Trlplett,  and  the  other  for  an  as- 
sault upon  her  committed  with  intent  to  com- 
mit rape.    The  state  made  no  claim  that  he 
personally  participated  in   an  assault  upon 
Mrs.  Trlplett  or  performed  any  overt  act  in 
jPnrtherance  of  such  assault  by  another.    The 
overt  acts  which  furnished  the  basis  of  the 
state's  charge  were  committed  by  a  person 
known  in  the  case  by  the  name  of  Wilson, 
The  accused's  criminal  liability,  if  liable  he 
is  as  charged  in  the  two  counts,  is  that  of 


an  accessory.  No  evidence  was  offered  tend- 
ing to  show  that  Wilson  ravished  Mrs.  Trip- 
lett. There  was  evidence  impressively  estab- 
lishing that  he  committed  an  assault  upon 
her.  It  was  incumbent  ui>on  the  state,  there- 
fore. If  it  would  furnish  a  sufficient  founda- 
tion for  the  defendant's  conviction  upon  the 
last-named  count,  to  establish  beyond  a  rea- 
sonable doubt  that  Wilson's  assault  was 
made  with  the  Intent  and  purpose  of  ravish- 
ing Mrs.  Triplett,  and.  If  a  conviction  upon 
the  first-named  count  was  to  be  Justified,  to 
establish  In  like  manner  that  any  combina- 
tion or  conspiracy  which  may  have  existed 
between  the  accused  and  Wilson  comprehend- 
ed such  ravishment  within  Its  scope  and  pur- 
pose. In  other  words,  it  was  essential  to 
the  state's  successful  prosecution  of  the  de- 
fendant, under  either  of  the  two  counts  npon 
which  conviction  was  had,  that  it  be  shown 
beyond  a  reasonable  doubt  that  there  was  an 
intent  or  purpose  on  the  part  of  the  parties 
Implicated  in  the  affair  under  Investigation, 
or  some  of  them  at  least,  that  carnal  iuiowl- 
edge  of  Mrs.  Triplett  be  had  forcibly  and 
against  her  will. 

Were  the  evidence  confined  to  the  scene  In 
the  bedroom  In  the  hotel  where  Wilson  laid 
violent  hands  upon  Mrs.  Triplett,  it  might 
well  be  Inferred  that  his  purpose  was  her 
ravishment;  but  the  exigencies  of  the  state's 
case,  which  required  that  the  accused  be 
criminally  connected  with  what  there  tran- 
spired, demanded  that  the  evidence  take  a 
wider  range.  As  a  result,  we  have  in  the 
record  a  disclosure  of  collateral  matters  and 
events  vitally  Important  to  an  Intelligent  un- 
derstanding of  the  situation  In  which  Wilson 
is  found  committing  bis  assault,  and  throw- 
ing a  flood  of  light  upon  the  motive  behind 
It  and  the  end  It  had  In  view. 

The  story,  as  the  state's  evidence  discloses 
it,  is  in  all  Its  details  a  long  one,  and  need  not 
now  l>e  rehearsed.  It  Is  sufficient  to  say  thi>t 
It  shows  no  other  motive  behind  the  affair 
and  no  other  object  sought  by  means  of  it 
than  the  provision  of  a  foundation  for  evi- 
dence derogatory  to  Mrs.  Triplett's  character 
for  use  In  defeating  her  pending  action  against 
her  husband,  a  brother  of  the  accused,  for 
a  separation  and  support  The  theory  of  the 
state  was  and  Is  that  the  accused  was  de- 
sirous of  obtaining  such  evidence;  and  to 
that  end  employed  Wilson,  Campbell,  and 
Donahue  to  carry  out  a  carefully  planned 
scheme  In  accordance  with  which  Wilson  was 
to  lure  Mrs.  Trlplett  to  the  hotel  in  New 
Haven  and  to  a  sleeping  room  therein  on  the 
false  pretense  of  meeting  there  a  lady  on  a 
business  errand  Involving  the  sale  of  real 
estate,  and  the  accused,  accompanied  by 
Campbell  and  Donahue,  were  to  appear  upon 
the  scene  following  Mrs.  Triplett's  unsuspect- 
ing entrance  to  the  room  with  Wilson. 

Assuming  that  it  was  the  moving  purpose 
of  the  parties  whom  Mrs.  Triplett  faced  upon 
this  occasion  to  obtain  evidence  or  the  toun 


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101  ATIiANTIO  REPORTBB 


(Conn. 


dation  for  evidence  incriminatory  of  ber 
diaracter,  It  ts  more  than  difficult  to  imagine 
liow  the  addition  of  ber  ravishment  to  the 
discovery  of  her  presence  in  the  room  alone 
with  Wilson  could  either  have  added  a  fea- 
ture beneficial  to  her  husband's  cause  or  been 
thought  that  it  would  do  so.  Tbe  truth 
would  not  have  helped,  and  perjury  would 
have  been  furnished  no  better  founda- 
tion for  the  desired  testimony  than  ber  pres- 
ence in  the  room  supplied.  Not  only  was 
there  nothing  to  gain  by  the  perpetration  of 
a  rape,  but  the  very  attempt  at  Its  perpetra- 
tion threatened  both  disaster  to  the  scheme, 
through  the  outcry  and  commotion  that 
would  be  likely  to  result,  and  dire  punish- 
ment for  the  offenders  singularly  open  to 
detection.  It  is  bard  to  imagine  a  more 
senseless  and  foolhardy  thing  for  the  ac- 
cused and  his  associates  to  have  planned  to 
do,  if  they  hoped  for  success  in  their  Imputed 
purpose,  than  that  which  the  Jury,  In  order 
to  return  its  verdict,  must  have  found  that 
they  planned  and  did.  It  is  well-nigh  unbe- 
lievable that  a  sane  man,  much  less  a  train- 
ed lawyer,  would,  in  order  to  carry  out  a 
plan  devised  for  the  purpose  outlined,  have 
permitted  so  foolish,  superfluous,  and  haz- 
ardous a  feature  to'  enter  Into  it  as  that  of 
the  rape  of  the  Intended  victim  of  It. 

As  far  as  the  assault  is  concerned,  the 
explanation  that  It  was  prompted  solely  by 
the  exigencies  of  the  occasion,  in  order  that 
Mrs.  Trlplett  might  be  detained  In  the  room 
and  found  therein  by  the  waiting  and  mo- 
mentarily expected  watchers,  is  far  more 
plausible  and  reasonable  than  that  it  was  the 
first  step  in  a  concerted  attempt  to  commit 
rape.  Her  discovery  In  the  room  was,  for 
the  conspirator's  purpose,  as  suflfldent  an  out- 
come as  any  other  produced  by  force  could 
have  been.  That  purpose  was  as  claimed  by 
the  state,  and  no  other  involving  the  accused 
in  criminal  responsibility  is  apparent,  the  se- 
curing of  a  plausible  and  workable  founda- 
tion for  testimony  derogatory  to  Mrs.  Trlp- 
lett's  character  to  be  used  to  defeat  her  cause 
against  her  husband.  That  foundation  might 
be  obtained  by  the  discovery  of  outward  sus- 
picious conditions  which  might  safely  be  left 
to  speak  for  themselves  before  the  trier,  or 
it  might  be  secured  through  the  discovery  of 
such  conditions  to  be  utilized  in  testimony 
which  should  weave  around  it  manufactured 
details  which  would  make  a  more  explicit 
tale  of  wrongdoing.  Her  escape,  before  the 
prearranged  arrival  of  those  hovering  near 
to  entrap  her  under  circumstances  themselves 
suspicious'  and  susceptible  of  being  embroid- 
ered Into  something  worse  than  suspicion, 
would  seriously  threaten  the  successful  ex- 
ecution of  the  plan  which  had  been  arranged. 
That  fact  must  have  been  apparent  to  Wilson, 
and  bis  resort  to  force  to  prevent  her  escape 
was  not  an  unnatural  consequence. 


As  one  reads  the  repulsive  story  which  the 
state's  evidence  presents  with  a  striking  ar- 
ray of  proof,  it  is  easy  to  see  how  the  Jury 
was  Influenced  to  return  a  verdict  which 
would  prepare  the  way  for  the  Infliction  of 
severe  punishment  upon  the  defendant  for 
the  part  he  played  In  it  Although  we  may 
share  in  no  slight  degree  the  Jury's  natural 
feelings  of  disgust  and  repugnance  at  what 
the  evidence  appears  clearly  to  disclose  was 
done  to  Mrs.  Trlplett,  we  are  bound  to  say 
that  an  examination  of  It  shows  that,  what- 
ever else  it  satisfactorily  establishes,  there 
is  in  It  a  palpable  failure  of  proof,  not  to  say 
proof  beyond  reasonable  doubt,  establishing 
that  the  essential  element  of  an  Intent  to  rape 
was  involved  In  any  combination  entered  in- 
to by  the  parties  charged  therewith,  or  that 
the  accused  assisted,  aided,  or  abetted  in  any 
act  which  had  that  design  in  view.  Without 
such  proof  a  conviction  upon  either  count 
was  without  Justification. 

In  view  of  our  conclusion,  we  have  no  oc- 
casion to  consider  the  sufliciency  of  the  re- 
maining somewhat  numerous  assignments  of 
error. 

There  Is  error,  the  Judgment  Is  set  aside, 
and  a  new  trial  ordered.  In  this  opinion  the 
other  Judges  concurred. 


LYONS  V.  WALSn. 


(93  Conn.  IS) 


(Supreme  Court  of  Errors  of  Connecdcut. 
July  6,  1917.) 

1.  AnjoiNiNQ   Landownees  (8=>4(6)— Lateb- 

AL   SUPPOBT  —  ■RbTAININO  WALL  —  DOTT  TO 

Maintain. 
Where  A.  cut  down  his  lot  below  the  level 
of  B.'s  adjoining  lot,  and  put  a  retaining  wall 
wholly  on  B.'s  lot,  A.  s  successor  In  title  was  not 
bound  to  maintain  the  wall,  which  became  part 
of  B.'s  lot,  though  he  would  have  been  bound 
to  do  80  had  the  wall  been  placed  on  A.'s  lot; 
the  right  of  action  for  destroying  lateral  support 
being  personal  against  the  wrongdoer,  and  the 
wrong  binding  the  land  to  nothing. 

[Ed.  Note. — For  other  cases,  see  Adjoining 
Landowners,  Cent.  Dig.  §  36.] 

2.  Injunction  «=9l4  —  Mandatory  Injunc- 
tion— ^Restobation  of  Retaining  Wall. 

While  the  owner  of  a  lot  on  which  parts  of  a 
disintegrating  retaining  wall  on  the  adjoining 
lot  falls  may  recover  for  damages  done,  he  may 
not  have  mandatory  injunction  for  restoration  of 
the  wall ;  irreparable  injury  not  clearly  appear- 
ing. 

[Ed.  Note.— For  other  cases,  see  Injunction, 
(Tent.  Dig.  i  14.] 

Appeal  from  Court  of  Common  Pleas,  New 
London  County;    Charles  B.  Waller,  Judge. 

Action  by  Mary  R,  Lyons  against  Mari- 
anne Walsh  for  mandatory  injunction  for 
restoration  of  a  neglected  wall  and  for  dam- 
ages for  its  partial  collapse;  defendant 
counterclaiming  for  substantially  the  same 
relief.  Judgment  for  defendant  on  her  coun- 
terclaim, and  plaintifC  appeals.  Reversed 
and  remanded,  with  directions. 


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Conn.) 


LYONS  V.  WALSH 


489 


The  parties  own  adjoining  dty  house  lots 
on  a  street  in  Norwich  running  north  and 
south.    Both   lots   were   originally   In   one 
tract,  and  In  Its  natural  condition  the  land 
sloped  unhrokenly  and  at  a  steep  pitch  from 
the  north.    LoDg  before  either  of  the  pres- 
ent owners  acquired  title  to  her  lot,  the  then 
owner  of  the  lower  lot,  who  had  purchased 
from  the  original  owner  of  the  tract,  leveled 
a  part  of  his  land  for  buUdlng  upon  It,  and 
in  so  doing  excavated  and  removed  the  soil 
from  this  portion  up  to  and  along  a  section 
of  his  northern  boundary  line.    This  destroy- 
ed for  a  corresponding  distance  the  natural 
lateral  support  of  the  adjoining  land  of  the 
north  lot,  and  to  replace  it  he  built  into  the 
bank  a  retaining  wall  10  feet  high  along  this 
portion  of  the  east  and  west  line.    This  was 
set  wholly  upon  the  upper,  or  what  is  now 
the  Walsh,  lot,  and  the  dividing  line  of  the 
two  properties  lies  along  Its  exposed  south- 
ern face.    Some  years  afterwards,  in  1895, 
and    after    the   defendant   had    become   the 
owner  of  the  north  lot,  a  later  owner  of  the 
south  lot  made  another  excavation  in  prepa- 
ration  for   further   building,   and   removed 
more  soil  up  to  the  Une  as  extended  from 
the  eastern  end  of  the  wall.    This  (deration 
removed  the  lateral  support  of  the  Walsh 
land  along  the  continued  line,  and  In  substi- 
tution for  this  support  he  extended  the  wall 
at  the  same  height  of  10  feet  still  further 
along  the  Une,  continuing  it  wholly  on  the 
Walsh  land,  so  that  the  dividing  line  of  the 
two  lota  follows  the  southern  face  of  the 
wall  throughout  its  length.    The  height  of 
the  wall  measures  the  depth  of  the  exca- 
vations at  the  line,  and  no  additional  bur- 
den requiring  more  than  the  natural  lateral 
support  of  the  soil  has  ever  been  added  to 
the  Walsh  lot.    The  parties  are  Ignorant  of 
the  circumstances  under  which  the  first  sec- 
tion of  the  wall  was  placed  on  the  Walsh 
lot,  save  that  its  purpose  and  the  person 
erecting  It  were  as  already  stated,  and,  al- 
though the  remaining  part  of  the  wall  was 
built  after  the  defendant  had  acquired  her 
present  ovmershlp,  the  record  is  silent  as  to 
why  this  part  of  the  wall  was  also  placed 
whoUy  upon  her  land.    No  deed  dealing  with 
any  of  the  property  involved  mentions  the 
wall.    The  plaintiff  bought  the  south  lot  In 
1913,  and  through  neglect  and  the  work  of 
tlie  elements  the  wall  has  been  disintegrating 
for  several  years ;  there  being  no  evidence  of 
any  effort  l>y  any  <me  to  maintain  It  or  keep 
It    In  repair.    It  is  now  out  of  plumb  in 
parts,  and  stones  from  it  have  become  loos- 
eaei  and  dislodged,  and  have  fallen  upon 
the  plaintiff's  land.    Damage  to  the  plain- 
tiff  from   this  cause  during  the  two  years 
next  before  this  action  was  brought  amounts 
to    $25.    More  trouble  of  this  character  Is 
lilcely  to  occur,  and  the  wall  is  in  danger  of 
farther  collapse,  unless  it  is  strengthened  or 
restored. 

Xliere  was  apparently  no  dispute  between 
the   parties  as  to  these  essential  facts,  and 


upon  them  the  plaintiff  claimed,  by  way  of 
equitable  relief,  a  mandatory  Injimctlon  di- 
recting the  proper  repair  or  rebuilding  of 
the  wall  by  the  defendant,  and  legal  relief 
In  damages  for  the  injiu?  already  incurred. 
The  defendant.  In  pursuance  of  a  counter- 
claim which  rehearsed  the  more  Important 
of  the  facts  and  supplemented  them  with 
fivther  allegations  in  the  nature  of  assumed 
legol  deductions  from  them,  claimed  a  man- 
datory injunction  compelling  the  restoration 
of  the  wall  by  the  plaintiff  to  a  condition  of 
etDcieucy,  or  the  furnishing  of  other  ade- 
quate support  for  the  defendant's  land.  Hie 
trial  court  rendered  judgment  for  the  de- 
fendant for  a  mandatory  Injunction  as  pray- 
ed for,  and  for  nominal  damages,  and  the 
plaintiff's  claim  of  error,  alternatively  stat- 
ed in  its  several  assignments  upon  the  ap- 
peal, is  based  upon  the  court's  holding  that 
the  duty  of  maintaining  the  wall  rested  upon 
the  plaintiff,  and  in  not  holding  that  it  rest- 
ed upon  the  defendant 

Wllllara  H.  Shields  and  William  H.  Shields, 
Jr.,  both  of  Norwich,  for  appellant.  Jere- 
miah J.  Desmond,  of  Norwich,  for  appellee. 

CASE,  J.  (after  stating  the  facts  as  above). 
[1]  When  a  former  owner  of  the  Lyons  land 
first  disturbed  its  surface,  he  did  so  at  the 
peril  of  answering  in  damages  if  his  act 
should  destroy  the  lateral  supi)ort  which  was 
his  neighbor's  by  natural  right  The  law 
as  to  that  situation  is  universally  settled: 

"The  right  of  an  owner  of  land  to  the  support 
of  the  land  adjoining  is  jur«  naturte,  like  the 
right  in  a  flowing  stream.  Every  owner  of 
land  is  entitled,  a«  against  his  neighbor,  to  have 
the  earth  stand  and  the  water  flow  in  its  natural 
condition."  Gilmore  v.  Driscoll,  122  Mass.  109, 
201,  23  Am.  Rep.  312;  Trowbridge  v.  True,  52 
Conn.  190,  52  Am.  Rep.  579 ;  Ceffarelli  v.  Lan- 
dino,  82  Conn.  126,  72  AU.  564. 

He  apparently  recognized  this,  and  sougbt 
to  forestall  the  probable  result  to  the  higher 
ground  of  the  upper  lot  by  substituting  an 
artificial  support  to  safeguard  it  In  every 
effective  sense  he  accomplished  thla  purpose, 
but  what  he  actually  did  was  to  take  away  a 
portion  of  his  neighbor's  land  and  replace  it 
with  a  solid  stone  wall.  Whether  he  in- 
vaded the  adjoining  lot  by  mistake  or  with 
its  owDefa  consent  is  of  no  consequence,  so 
far  as  his  successors  in  title  are  concerned. 
It  was  in  any  event  so  done  as  to  leave  no 
charge  upon  his  own  land.  The  wall  became 
as  much  a  part  of  the  realty  upon  whldi  it 
was  built  as  the  earth  had  been  which  it  re- 
placed, and  with  the  same  Incidents  and  bur- 
dens of  ownership  as  attach  to  every  part  of 
the  land  on  which  it  st{inds.  Ward  v.  Ives, 
91  Conn.  12,  21-22,  98  AtL  337. 

The  accepted  law  with  relation  to  lateral 
support  is  therefore  without  direct  slgnlfl- 
cance  here,  and  of  only  an  incidental  inter- 
est in  its  possible  bearing  upon  the  equities 
which  the  case  discloses.  Such  right  arising 
from  it  as  the  defendant's  predecessors  in 
title  had  in  relation  to  the  adjoining  land 


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490 


101  ATLANTIC  REPORTER 


(Conn. 


was  by  way  of  relief  in  damages,  once  a 
wrongful  invasion  had  been  followed  by  an 
actual  injury  to  the  land.  There  Is,  of  course, 
no  natural  right  to  equitable  interference  for 
the  preTention  of  such  an  anticipated  wrong, 
thongh  it  may  rery  well  be  that  in  cases  pre- 
senting situations  peculiar  to  themselves  and 
disclosing  the  essential  elements  of  irrepar- 
able injury  a  court  of  equity  will  Interpose  its 
aid.  But  the  redress  contemplated  by  the  law 
is  that  whidi  comes  from  an  infringement  of 
the  right  that  works  actual  damage.  The  vio- 
lator is  then  answerable  for  his  tort,  whether 
he  be  the  owner  of  the  premises  on  which 
the  initial  mischief  is  committed  or  the  merest 
stranger  to  the  title.  Gilmore  v.  Driscoll,- 
122  Mass.  190,  208.  The  action  is  a  purely 
personal  one.  The  wrong  which  gives  rise  to 
it  binds  the  land  to  nothing— charges  the  title 
with  nothing.  But  if  the  owner,  in  anticipa- 
tion of  such  an  injury  arising  out  of  his  acts, 
sets  an  artificial  structure  on  his  own  land 
to  prevent  it,  and  to  replace  what  he  has  re- 
moved, he  assumes  an  obligation  which  eq- 
uity will  recognize,  and  charges  the  land  with 
its  maintenance,  so  far,  at  least,  as  that  main- 
tenance is  necessary  to  preserve  his  neigh- 
bor's rights. 

The  defendant  seems  to  assume  that  In 
some  way  the  situation  presented  here  is 
controlled  by  this  principle,  and  relies  chief- 
ly upon  the  earnestly  urged  unfairness  of 
saddUng  the  maintenance  of  the  wall  upon 
her,  when  It  was  confessedly  erected  by  a  for- 
mer owner  of  the  adjoining  land  to  protect 
what  later  became  hers  from  the  consequenc- 
es of  his  invasion.  However  persuasive  her 
statement  of  the  equities  may  apx)ear  in  this 
limited  view  of  the  situation,  the  claim  is  not 
tmable.  It  ignores  the  entire  absence  of  the 
link  vitally  necessary  here  to  fasten  any  lla- 
Mlity  upon  the  plaintiff — a  burden  upon  the 
land  Itself  which  attaches  to  her  as  its  own- 
er. She  Is  obviously  only  reachable  through 
this,  and  it  Is  not  even  seriously  suggested 
that  under  the  positive  and  well-understood 
law  of  real  property  the  land  came  to  her 
charged  ■<*ith  any  duty  to  this  wall.  As  to 
any  snpposable  personal  agreement  by  the 
builders  of  the  wall  to  maintain  it,  if  we 
were  at  liberty  on  the  record  before  ua  to 
assume  that  such  an  agreement  ever  existed, 
there  Is  no  conceivable  theory  of  law  or  eq- 
uity which  could  transfer  the  obligations  of 
such  a  personal  undertaking  to  the  plaintiff 
upon  her  mere  acquirement  of  a  title  In  no 
way  affected  by  it. 

But,  while  these  considerations  are  decisive 
of  the  case,  it  is  apparent  that  something 
might  l>e  said  for  the  plaintifrs  equitable 
position  here,  if  there  were  occasion  to  treat 
the  matter  in  that  aspect  She  succeeded  to 
her  present  ownership  as  recently  as  1913, 
and  took  the  land  as  she  found  it  The  wall 
was  no  part  of  her  purchase,  but  was  an  open 
and  visible  part  of  the  adjoining  property. 


We  may  pr(q;>erly  assume  from  the  facts 
found  that  It  was  then  in  an  advancing  con- 
dition of  decay.  Whatever  the  original  pur- 
pose of  its  erection  had  been,  it  became,  after 
her  ownership  began,  a  source  of  annoyance, 
if  not  a  menace,  to  her  occnpatlou.  B<ven  had 
she  taken  title  with  knowledge  that  the  struc- 
ture had  been  voluntarily  put  there  by  some 
former  owner  of  the  land  she  was  buying, 
to  avoid  a  personal  liability  for  a  tort  of  his 
own,  this  could  not  weaken  her  position  from 
the  standpoint  of  equity.  She  was  in  no 
sense  equitably,  any  more  than  legally,  an- 
swerable for  any  act  of  her  predecessor  In 
title,  to  which  she  was  not  a  party,  and  which 
did  not  result  in  a  cliarge  upon  the  land.  We 
are  unable  to  sustain  the  Judgment  of  the 
trial  court,  charging  the  plaintiff,  as  It  does, 
with  the  duty  of  maintaining  the  wall,  but 
the  finding  is  comprehensive  enou^  to  war- 
rant a  final  disposition  of  the  case  without  a 
retriaL 

[2]  The  plaintlET  Is  entitled  to  recover  for 
the  damage  already  done  to  her  land  by  fail- 
ing parts  of  the  wall;  but  as  to  her  claim 
for  equitable  relief  by  way  of  a  mandatory 
injunction  directing  the  rebuilding  or  restora- 
tion of  the  wall  to  its  original  condition,  we 
are  not  satisfied  that  Irreparable  injury  is 
clearly  enough  disclosed  to  wurrant  the  ex- 
ercise of  so  drastic  a  power.  Equitable  re- 
lief of  this  character  Is,  and  for  the  most  ob- 
vious reasons  should  be,  granted  only  in  slta* 
atlons  whidi  so  clearly  call  for  it  as  to  make 
Its  refusal  work  real  and  serious  hardship 
and  injustice.  The  facts  of  the  case  before 
us  hardly  bring  It  within  this  requirement. 

There  is  error,  the  Judgment  is  reversed, 
and  the  cause  is  remanded,  with  directions  to 
the  court  of  common  pleas  to  enter  a  Judg- 
ment for  the  plaintiff  to  recover  damages, 
assessed  at  $26.   The  other  Judges  concurred. 


DOBUS  v.   LION. 


(K  Conn.  S&) 


(Supreme  Court  of  Errors  of  Connecticut    July 
»,  1917.) 

1.  LiMITATIOR  OF  ACTIONS  9s>S5(3)— ABBKITOK 

FBou  State— Resi  DEN CB  within  Statb. 
Where  the  debtor  in  1892  took  an  apart- 
ment in  New  York  City,  removing  from  Con- 
necticut, except  that  until  1906  he  continaed 
to  keep  a  residence  at  his  mother's  house  in 
Connecticut,  where  for  a  considerable  part  of 
each  year  be  spent  three  days  a  week,  and  his 
name  was  on  the  voting  list  in  Connecticut, 
he  was  not  without  the  state  so  as  to  toU  the 
statute  of  limitations. 

[Ed.  Note. — For  othar  cases,  see  linoitatioii 
of  Actions,  Cent  Dig.  {  451.] 

2.  Domicile  <6=>1— "Resident." 

A  man  may  be  a  resident  in  two  or  more 
states  at  the  same  time. 

[Ed.    Note.— For   other   cases,   see    Domicile. 
Cent.  Dig.  {  1.] 

3.  Process  <S=>61— "Usual  Place  of  Abode." 

The  bouse  where  a  resident  of  Connecticut 
habitually  spends  three  days  of  the  week  for 
14  years,  except  when  away  on  trips  and  vaca- 


09For  otber  caMt  sm  ramj  topic  ana  Km'-NUHBiBR  in  all  Ker-Namberad  DICMta  and  lodazaa 


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Conn.) 


CARTER  T.  ROWB 


491 


tionR,  is  bis  usual  place  of  abode  for  the  pur- 
pose of  serving   process  upon   him. 

[Ed.  Note. — VoT  other  cases,  see  Process,  Cent, 
Dig.  {  69. 

For  other  definitions  see  Words  and  Phrases, 
First  and  Second  Series,  Usual  Place  of  Abode.] 

Appeal  from  Court  of  Common  Pleas,  Fair^ 
field  County;  Frank  L.  Wilder,  Acting  Judge. 

Action  by  James  H.  Doms  against  Flor- 
ence G.  Lyon,  executrix  of  Charles  H.  Lyon, 
deceased.  Judgment  for  defendant,  and 
plaintiff  appeals.    No  error. 

The  plalntUTs  cause  of  action  accrued 
March  9,  1892,  against  Charles  H,  Lyon,  then 
of  Bridgeport,  and  this  action  was  not 
brought  against  his  executrix  until  Decem- 
ber, 1915.  To  a  plea  of  the  statute  of  limi- 
tations the  plaintiff  replied  that  Lyon  re- 
moved from  the  state  of  Connecticut  in  1892, 
and  continued  to  reside  out  of  the  state  un- 
til his  death  in  April,  1915.  The  reply  was 
traversed,  and  the  finding  on  that  point  Is 
that  Lyon  and  his  wife  took  an  apartment  In 
New  York  City  in  1892,  and  removed  from 
the  state,  and  were  without  the  state  until 
his  death,  except  that  from  1892  until  the 
death  of  his  mother  in  1906  Lyon  continued 
to  keep  a  residence  at  his  mother's  house  In 
Bridgeport,  where  for  a  considerable  part  of 
each  year  he  spent  three  days  a  week.  Also 
that  Lyon's  name  was  on  the  voting  list  of 
the  dty  of  Bridgeport  until  his  death,  that 
he  sometimes  voted  there,  and  that  it  was 
his  usual  custom  to  spend  Thursdays,  Fri- 
days, and  Saturdays  of  each  week  at  bla 
mother's  house,  where  he  had  a  room,  except 
those  portions  of  the  year  when  he  was  away 
from  Bridgeport  on  some  trip  or  vacation. 
There  are  other  findings  not  inconsistent  with 
the  above  which.  In  the  view  we  take  of  the 
case,  need  not  be  repeated. 

William  H.  Comley,  Jr.,  and  Charles  A^ 
H<^wood,  botb  of  Bridgeport,  for  appellant. 
W.  Parker  Seeley,  of  Bridgeport,  for  appel- 
lee. 

BBACH,  J.  (after  stating  the  facts  as 
above).  [1]  The  controlling  question  la 
whether  Lyon  was  "without  the  state,"  with- 
in the  meaning  of  General  Statutes,  |  1125, 
from  1892  to  1906,  so  that  the  statute  of 
limitations  did  not  run  against  the  plaintiff's 
cause  of  action  during  that  period.  If  It  did, 
the  plea  was  good.  It  seems  clear  that  the 
finding  condudes  the  point  against  the  plain- 
tiff's contention.  The  finding  Is  that  Lyon 
was  without  the  state  except  as  therein  stat- 
ed; but  the  exceptions  nullify  the  affirma- 
tion. 

In  Sage  v.  Hawley,  16  Conn.  106,  41  Am. 
Dec.  128,  we  held  that  the  proviso  as  to  ab- 
sence frcHU  the  state  did  not  refer  to  tem- 
porary absences,  but  was  Intended  to  pre- 
serve the  plaintiff's  right  of  action  during  « 
period   when,  by  reason  of  the  defendant's 


absence.  It  was  impossible  to  commence  an 
action  In  personam  against  the  defendant; 
and  we  said  that  If  the  defendant  is  domi- 
ciled or  resident  vrlthin  the  state,  although 
temporarily  absent  therefrom,  the  statutes 
Still  provide  a  way  by  which  a  personal  ac- 
tion may  be  commenced  against  him,  in 
which  a  Judgment  may  be  obtained  which 
will  be  binding  and  conclusive  between  the 
parties,  and  therefore  in  such  a  case  no  sav- 
ing of  the  right  of  the  plaintiff  to  commence 
such  an  action  is  necessary. 

In  this  case  the  defendant  was  not  even  ab- 
sent from  the  state.  He  was  customarily  In 
Bridgeport  three  days  in  the  week,  and  by 
the  exercise  of  ordinary  diligence  the  credi- 
tor could  have  ascertained  that  fact,  and 
commenced  his  action  at  any  time. 

[2,  S]  The  finding  that  he  sometimes  voted 
in  Bridgeport  indicates  very  strongly  that 
Lyon  himself  regarded  Bridgeport  as  his 
legal  domicile.  There  Is  no  finding  on  the 
point  of  domicile,  but  It  Is  expressly  found 
that  be  had  a  residence  in  Bridgeport,  and 
the  necessary  Inference  from  the  other  facts 
found  Is  that  he  also  had  a  usual  place  of 
abode  in  Bridgeport.  A  man  may  be  a  resi- 
dent In  two  or  more  states  at  the  same  time, 
and  the  bouse  where  a  resident  of  Connecti- 
cut habitually  spends  three  days  In  the  week 
for  a  period  of  14  years,  except  when  away 
on  trips  and  vacations,  is  his  usual  place  of 
abode  for  the  purpose  of  serving  process  up- 
on him. 

There  Is  no  error.  The  other  Judges  con- 
curred. 


02  Conn.  (2) 
CARTER  V.  ROWB  et  aL 

(Supreme  Court  of  Errors  of  Connecticub    July 
6,  1917.) 

1.  Mastteb  ANn  Sebvaut  «s>37S(2)  —  Wobk- 
iflEN's    Compensation    Act  —  Injubt    in 

COUBSK  OF  AND  OUT  OF  EmPLOTMENT. 

Where  one  was  employed  to  work  on  a  boat, 
and  on  reporting  at  the  appointed  time  for  sail- 
ing was  informed  it  would  not  sail  till  11 
o'clock,  and  given  permission  to  use  the  in- 
tervening time  as  he  pleased,  and  went  ashore, 
his  injury  by  fall  while  returning  at  10  o'clock, 
and  while  going  tlu-ough  the  employers'  yard, 
a  not  unreasonable  route,  arose  m  the  course 
of  and  out  of  his  employment. 

Afpe&l  from  Superior  Court,  New  Haven 
County;    James  H.  Webb,  Judge. 

Claim  of  Alexander  G.  Carter  against 
Henry  C.  Rowe  and  others  under  the  Work- 
men's Compensation  Act  (Laws  1913,  c.  138). 
From  Judgment  dismissing  appeal  from  de- 
cision and  award  of  compensation  commis- 
sioner of  the  Tlilrd  district  in  favor  of  plain- 
tiff, and  afUrming  the  award,  defendants  ap- 
peal.   Affirmed. 

Patrick  Healey,  of  Waterbury,  for  appel- 
lants. L.  Erwin  Jacobs,  of  New  Hav«i  for 
appellee. 


^ssFoT  ottaar  esMs  wt  sam*  tople  and  KBY-NUUBBK  In  all  Kej -Numbered  Disesu  and  ladezM 


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492 


101  ATIiAJS'TlC  ItEPOUTER 


(Cona 


WHEELER,  J.  The  finding  of  the  comml* 
sloner  recites  these  facts:  On  September  23, 
1916,  the  plalntlfT  entered  into  a  contract  of 
employment  as  a  hand  upon  the  defendants' 
boat,  and  was  Instnicted  by  the  defendants 
to  report  for  duty  on  the  boat,  which  was  to 
sail  at  6  o'clock  In  the  afternoon  of  Septem- 
ber 24th.  The  plaintiff  reported  on  the  boat 
shortly  before  the  hour  of  sailing.  He  waa 
there  informed  that  the  boat  would  sail  at 
11  o'clock  and  shortly  went  ashore,  leaving 
hia  baggage  on  the  boat  About  10  o'clock 
In  the  evening  he  returned  to  the  premises  of 
the  defendants,  and  while  going  through 
their  yard  to  board  the  boat  fell  in  the  dark- 
ness and  suffered  Injuries,  for  whldi  he 
claims  compensation. 

[1]  The  sole  ground  on  the  appeal  to  this 
court  is  that  the  trial  court  erred  in  deciding 
that  the  injury  arose  in  the  course  of  and 
out  of  the  employment  of  the  plaintiff.  Car- 
ter's onployment  was  to  have  begun  at  5 
o'clock,  and  from  the  time  be  entered  his  em- 
ployer's premises  in  order  to  reach  the  boat 
until  he  boarded  her  shortly  before  6,  be  was 
doing  something  incidental  to  bis  employment 
and  reasonably  within  its  period.  Employ- 
ment may  exist  before  actual  work  begins. 
Just  as  it  may  continue  after  actual  work  has 
ceased.  When  he  left  the  boat  and  went 
ashore  he  was,  so  far  as  the  finding  of  the 
commissioner  discloses,  engaged  upon  his  own 
business  or  pleasure,  and  not  in  the  course  of 
bis  employment.  From  the  memorandum  of 
the  commissioner  it  appears  that  this  question 
was  not  raised  before  him,  which  explains 
Its  absence  from  hU  finding.  If  Garter  left 
the  boat  without  orders  and  without  permis- 
sion, he  voluntarily  left  his  place  of  employ- 
ment, and  such  dangers  as  be  thereafter  en- 
countered could  not  be  held  to  have  arisen 
in  the  course  of  or  out  of  his  employmait. 
Any  injury  so  suffered  occurred  outside  the 
place  of  his  employment,  since  that  was  on 
the  boat  and  not  on  shore,  and  while  he  was 
bent  upon  bis  own  business  and  not  upon 
the  duties  of  his  employment.  Larke  v.  Han- 
cock Mutual  Life  Ins.  Co.,  90  CJonn.  303,  97 
Atl.  320,  L.  R.  A.  1916B,  5»i;  Mann  v.  Glas- 
tonbury Knitting  Co.,  90  Conn.  116,  118,  96 
Atl,  .'568,  L.  R.  A.  1916D,  86;  Wnrren  v.  Had- 
ley's  Colliery  Co.,  6  B.  W.  C.  G.  136. 

In  his  memorandum  of  decision  the  trial 
judge  says:  "He  [Carter]  was  given  permis- 
sion to  use  the  intervening  time  as  be  pleas- 
ed." The  parties  at  least  In  the  oral  argu- 
ment, have  argued  the  cause  as  if  this  fact 
were  a  part  of  the  finding  before  us.  If  we 
so  assume,  it  would  follow  that  Garter  had 
been  given  the  privilege  of  using  bis  time  at 
his  will,  and  of  leaving  the  boat  and  his 
employer's  premises  and  returning  at  hia 
pleasure.  This  permission  would  be  subject 
to  an  implied  qualification  that  he  should  re- 


turn a  reasonable  time  before  the  boat  sailed 
and  by  a  reasonable  route  over  the  owner's 
premises.  The  defendants  have  argued  the 
case  upon  the  theory  that  the  employment 
of  Carter  began  at  11  o'clock  instead  of  at 
5  o'clock.  If  their  assumption  were  to  be 
made,  it  would  not  follow,  in  the  absence  of 
express  contract  to  the  contrary,  that  Carter 
could  not  have  boarded  the  boat  an  hour  be- 
fore she  sailed.  That,  it  seiems  to  us,  would 
not  have  been  an  unreasonable  time  to  have 
sought  the  place  of  «nployment  before  the 
boat  was  to  salL  Carter  might  well  have 
supposed  there  would  be  duties  to  perform 
some  time  before  the  sailing.  Fltzpatrlck  v. 
Hlndley  Field  Colliery  Co.,  4  W.  C.  0.  If 
Carter  left  the  boat  by  pefrmission,  and  while 
returning  to  It  and  bis  work  he  was  injured 
upon  bis  master's  premises,  and  while  he 
was  proceeding  over  a  not  unreasonable 
route,  and  while  he  was  at  a  place  where  he 
had  a  right  to  be,  and  within  the  period  of 
his  employment,  which  began  at  5  o'clock,  he 
was  injured  in  the  course  of  his  employment 
and  his  employment  was  a  proximate  cause 
of  his  injury. 

There  is  no  error.    The  other  Judges  con- 
curred. 


(92  Conn.  87) 
SWANSON  ▼.  LATHAM  &  CRANE  et  aL 

(Supreme  Court  of  GTrrors  of  Connecticat.    July 
6,  1917.) 

1.  Master  and  Sebvant  ®=»418(5)  —  Wobk- 
men's  Compensation  Act— Review— Ques- 
tions Reserved. 

Where  the  superior  court  reserved  for  the 
advice  of  the  Supreme  Court  of  Errors  questions 
of  law  raised  on  appeal  from  an  award  under 
the  Workmen's  Compensation  Act  (Laws  1913, 
c.  138),  only  the  questions  reserved  can  be  con- 
sidered. 

2.  Masteb  and  Sebvant  «=»417(7)  —  Work- 
men's Compensation  Act  —  Findings  op 
Commissioner— Review. 

Upon  an  appeal  from  the  findings  of  the 
commissioner  under  the  Workmen's  Compensa- 
tion Act,  the  trial  court  does  not  retry  the_  facts, 
but  decides  upon  the  findings  of  the  commis.«ion- 
er,  unless  the  appeal  assigns  as  error  the  find- 
ings, or  omission  to  find  any  facts,  and  the  court 
finds  that  facts  have  been  found,  or  omitted, 
which  would  affect  the  result. 
8.  Master  and  Servant  *=»^18(6)  —  Work- 
men's Compensation  Act  —  Findings  of 
Commissioner— Review. 
Upon  appeal  under  Workmen's  Compensa- 
tion Act  from  the  decision  of  the  trial  court,  or 
upon  a  reservation  in  a  compensation  case,  our 
authority  does  not  differ  from  that  exercised  by 
OS  in  the  ordinary  appeal  for  errors  in  the  find- 
ings of  tiie  trial  court. 

4.  Master  and  Servant  ®=>875(2)— Injubies 
to  Servant— Course  or  Emflotment. 
Defendants  agreed  as  part  of  the  contract 
with  their  employes  that  they  would  pay  them, 
in  addition  to  their  regular  wages,  90  cents 
each  day  as  transportation  charges  to  and  fTt,m 
the  place  of  employment.     Defendants  arranged 


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Conn.) 


SWANSON  V.  LATHAM  A  CRANE 


493 


vith'one  of  the  workmen,  who  bad  an  automo- 
bile, to  carry  the  others.  While  retarning  from 
vork,  thi  automobile  collided  with  a  train  and 
the  workmen  including  the  driver  were  killed. 
Held,  in  an  action  by  the  widow  of  a  workman 
for  compensation  under  the  Workmen's  Compen- 
sation Act,  that  the  injury  was  one  arisinK  out  of 
and  in  the  course  of  the  employment. 

6.  Master  and   Servant  «=>375(2)  — Wobk- 
hbn's    Compensation    Act   —    Pboximatk 
Cause  of  Injubt. 
The  employment  was  the  proximate  cause  of 

the  injury. 

Case  Reserved  from  Superior  Court,  Hart- 
ford County ;   Edwin  B.  Gager,  Judge. 

Proceeding  under  the  Workmen's  Compen- 
«ation  Act  by  Alice  May  Swanson  against 
Latham  &  <>ane,  employer,  and  the  .9<tna 
Life  Insurance  Company,  Insurer.  Prom  an 
award  of  compensation  by  the  compensation 
commissioner,  the  respondents  appealed  to 
the  superior  court  to  Hartford  county.  Ques- 
tions of  law  raised  reserved  for  the  advice 
of  this  court  Judgment  advised,  dismissing 
the  appeaL 

Warren  B.  Johnson  and  Leonard  J.  Col- 
lins, both  of  Hartford,  for  appellants.  Wil- 
liam A.  King  and  Samuel  B.  Harvey,  both 
of  WlUlmantic,  for  appellee. 

•WHBELER,  3.  The  facts  essential  to 
the  decision  of  this  appeal,  as  found  by  the 
commissioner,  are  these: 

The  claimant  Is  the  widow  of  Andrew  S. 
Swanson,  a  carpenter  who  was  employed  by 
the  respondents,  Latham  &  Crane,  building 
contractors,  of  WlUlmantic,  to  work  upon 
the  Dennis  house  In  Stafford  Springs,  for 
the  r^nir  of  which  the  contractors  had  the 
contract.  The  contractors  agreed,  as  a  part 
of  the  contract  of  employment  with  Swan- 
son  and  five  other  employes,  Includtog  Os- 
terhout,  similarly  employed,  who  lived  In  or 
near  WlUlmantic,  that  they  would  pay  them, 
In  addition  to  their  regular  wages,  their 
transportation  charges,  fixed  at  90  cents  each 
day,  from  WlUlmantic  to  Stafford  Springs 
and  return.  These  employes  were  at  Uberty 
to  remain  In  Stafford  Springs  and  use  the  90 
cents  for  board,  or  to  return  to  Willimantic 
and  use  It  tor  transportation. 

The  contractors  arranged  with  Osterh<mt, 
one  of  these  workmen,  to  carry  these  em- 
ployes tp  and  from  Stafford  Springs  In  his 
own  automobile,  <H)erated  and  maintained 
by  him,  for  the  sum  of  90  cenfts  a  day  for 
each  man. 

On  this  particular  Job  the  transportation 
for  these  men  was  provided  by  means  of 
Osterhout's  automobile,  which  the  men  so 
used,  and  the  90  cents  for  each  man  paid 
by  the  contractors  to  Osterhout,  and  charged 
to  Deonii),  and  later  paid  by  him. 

On  December  7,  1916,  about  5  o'clock  In 
the  afternoon,  while  returning  from   their 


work  In  Stafford  Springs  to  their  homes  In 
WllUmantIc,  the  automobile  collided  with  a 
train  at  a  railroad  crossing,  and  Swanson 
and  the  other  five  men  in  the  autoraobUe 
were  kUled. 
The  questions  of  law  reserved  are: 

"Did  the  commissioner  err  in  holding:  (1) 
That  the  injury  to  and  death  of  the  decedent 
arose  out  of  his  employment  with  the  respond- 
ents Latham  &  Crane.  (2)  That  the  injury  to 
and  death  of  the  decedent  arose  in  the  course 
of  said  employment.  ^3)  That  the  claimant  was 
entitled  to  compensation  by  reason  of  said  in- 
jury and  death.  (4)  That  there  was  an  undei^ 
standing  or  agreement  between  the  employers 
and  the  Carpenters'  Union  whereby  the  former 
agreed  to  provide  transportation  for  the  de- 
cedent. (5)  That  it  was  a  part  of  the  contract 
of  employment  between  the  employers  and  the 
decedent  that  the  latter  was  to  be  carried  to 
and  from  his  work  by  Oaterhoot.'' 

[1]  These  questions,  following  the  corre- 
spondingly numbered  reasons  of  appeal,  are 
Identical  with  them,  except  that  to  questions 
3,  4,  and  S  the  words  "upon  the  evidence,"  ap- 
pearing to  the  reasons  of  appeal  after  the 
words  "In  holding,"  are  omitted.  This  omis- 
sion has  not  changed  the  purpose  or  meaning 
of  the  reasons  of  appeal.  The  questions  re- 
served are,  and  were  Intended  to  be,  those 
contained  to  the  reasons  of  appeal. 

Assignments  of  error  4  and  5  to  the  ap- 
peal from  the  commissioner  and  questions  4 
and  5  upon  the  reservation  were,  we  presume, 
intended  as  statements  of  error  committed  by 
the  commissioner  in  finding  the  facts  set 
forth  in  these  assignments;  the  words  "in 
holding"  betog  used  to  the  sense  of  "in  flnd- 
tog."  We  have  examtoed  the  evidence  with 
care,  and  are  of  the  opinion  that  the  trial 
court  might  reasonably  have  found  the  facts 
complatoed  of. 

[2,3]  Question  3,  reserved,  which  is  as- 
.slgnment  of  error  3,  Is  based  upon  a  mistaken 
conception  of  the  nature  of  the  appeal  from 
the  commissioner.  The  trial  court  does  not 
retry  the  facts.  It  decides  the  appeal  upon 
the  finding  as  made  by  the  commissioner,  un- 
less the  appeal  assigns  as  error  the  finding  or 
omission  to  find  any  facts,  and  the  court  finds 
that  facts  have  been  found  or  omitted,  which, 
If  found,  to  accordance  with  the  evidence, 
would  affect  the  result.  The  right  of  the  tri- 
al court  to  correct  the  flndtog  of  the  commis- 
sioner is  similar  to  that  exercised  by  us 
upon  a  proper  appeal  over  the  finding  of  a 
trial  court.  And  our  authority  upon  appeal 
from  the  decision  of  the  trial  court,  or  upon 
a  reservation  in  a  compensation  case,  does 
not  differ  from  that  exercised  by  us  in  the 
Ordtoary  appeal  for  errors  to  the  findtog  of 
the  trial  court. 

[4]  The  remaintog  assignments  of  error 
are  the  holding  of  the  commissioner  that  the 
tojury  suffered  arose  in  the  course  of  and  out 
of  the  employment    The  contract  of  employ- 


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494 


101  ATLANTIC  REPOBTEB 


(ConiL 


ment  between  the  decedent  and  the  respond- 
ents required  the  decedent  to  work  outside 
of  the  place  of  his  residence,  WUllmantlc,  If 
his  employer  should  so  desire;  and  the  re- 
spondents agreed  that,  while  the  decedent 
was  at  work  in  Stafford  Springs,  they,  as  a 
part  of  his  contract  of  employment,  would 
conTey  the  decedent  from  his  home  to  his 
work  and  back  to  his  home  each  day  in  an 
automobile  provided  by  them.  The  work  be- 
gan when  the  decedent  reached  Stafford 
Springs;  the  employment  began  when  the 
decedent  boarded  the  automobile  at  WiUlman- 
ilc,  and  continued  during  the  trip  and  during 
the  work,  and  on  the  return  trip  to  WlUiman- 
tic.  Transportation  to  and  from  his  work 
was  incidental  to  his  employment ;  hence  the 
employment  continued  during  the  transporta- 
tion in  the  same  way  as  during  the  .work. 
The  Injury  occurring  during  the  transporta- 
tion occurred  within  the  period  of  his  em- 
ployment, and  at  a  place  where  the  decedent 
had  a  right  to  be,  and  while  he  was  doing 
something  incidental  to  his  employment,  be- 
cause contemplated  by  it.  The  case  falls 
clearly  within  the  construction  we  have  here- 
tofore placed  upon  the  terms  of  the  statute 
"arising  in  the  course  of  the  employment." 
Larke  r.  Hancock  Mutual  Life  Ips.  Co.,  90 
Conn.  303,  308,  97  AtL  320,  L.  R.  A.  lOlOES, 
68i.  An  injury  received  by  an  employ^ 
while  riding,  pursuant  to  his  contract  of 
employment,  to  or  from  his  work  in  a  con- 
veyance furnished  by  his  employer,  is  one 
which  arises  in  the  course  of  and  out  of  the 
employment. 

[t]  The  injury  arose  in  the  course  of  the 
employment  and  while  the  decedent  was  be- 
ing transported  to  his  home ;  consequently 
the  employment  was  the  proximate  cause  of 
It.  It  therefore  arose  out  of  the  employment ; 
for  these  are  the  tests  to  ascertain  in  a  given 
case  whether  an  Injury  arose  out  of  the 
employment.  Larke  v.  Hancock  Mutual  Life 
Ins.  Co.,  90  Conn.  303,  97  Atl.  320,  L.  R.  A. 
1916E,  584. 

The  commissioner  did  not  err  in  the  mat- 
ters reserved.  The  superior  court  is  advised 
to  render  its  judgment  dismissing  the  appeal 
The  other  Judges  concurred. 


m  Conn,  tl) 
08TEEH0DT  T.  LATHAM  &  CRANE  et  al. 

(Supremie  Court  of  Errors  of  Connecticut. 
July  6,  1917.) 

Case  Reserved  from  Superior  Court,  Hart- 
ford County;  Edwin  B.  Oager,  Judge. 

Proceeding  tmder  the  Workmen's  Compen- 
sation Act  (Laws  1913,  c.  188)  by  Cora  T.  O*- 
terhout  against  Latham  &  Crane,  employers, 
and  another.    From  an  award  of  compensa- 


tion by  the  Compensation  Commissioners,  the 
respondents  appealed  to  the  superior  court  in 
Hartford  county.  Case  reserved.  Judgment 
advised,  dismissing  the  appeal. 

Warren  B.  Johnson  and  Leonard  J.  Collins, 
both  of  Hartford,  for  appellants.  William  A. 
King  and  Samuel  B.  Harvey,  both  of  Wll- 
limantlc,  for  appellee. 

WHEELER,  J.  The  facts  are  identical 
with  the  comtianlon  case.  Swanson  v.  Latham 
&  Crane  et  al.,  101  AU.  492.  The  decedoit, 
Osterhout,  was  an  employe  of  the  respond- 
ents, and  the  contract  of  employment  with 
him  was  the  same  as  with  Swanson.  He 
stood  in  a  dual  relation  to  Latham  &  Crane. 
As  the  owner  of  the  automobile,  he  was  their 
agent  to  transport  in  his  own  automobile 
Swanson  and  the  other  employfis,  including 
himself,  from  Wllllmantic  to  Stafford  Springs 
and  back  each  day,  for  the  sum  of  90  cents 
each  day  for  each  employe,  Including  him- 
self. As  an  employe  his  contract  of  emiHoy- 
ment  during  the  period  of  transportation  did 
not  differ  In  any  essential  from  Swanson's 
and  the  other  employes'.  So  far  as  the  facts 
disclose,  Osterhout's  case  does  not  dUter  from 
Swanson's. 

The  superior  court  is  advised  to  render  its 
Judgment  dismissing  this  appeal. 


(12  Conn.  IJ}) 
McNERNET  v.  DOWNS. 
(Supreme  Court  of  Errors  of  Connecticut.    Aug. 
2,  1917.) 

1.  Principal  ano  Subett  «=»46— Actions— 
Defenses. 

A  surety  cannot  deny  facts  recited  in  his 
obligation,  unless  such  recital  was  inserted  by 
mistake,  and  cannot  object  that  the  bond  was 
given  without  consideration,  that  judicial  pro- 
ceedings In  which  it  was  given  were  irregular, 
or  that  necessary  preliminary  steps  were  not 
taken ;  but  he  is  not  estopped  from  question- 
ing the  legality  of  its  execution. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Surety,  Cent  Dig.  H  91-95.] 

2.  Attachment  ®=»180 — Ofticeb'b  Receipt — 
Vaupitt. 

An  oflSoer's  receipt,  executed  to  release  at- 
tached property,  which  provides  that  the  obligor 
will  redeliver  the  property  or  pay  a  sum  certain, 
and  which  contains  a  waiver  clause  that  the 
obligor  is  estopped  from  denying  the  attachment, 
the  ownership,  and  the  value  of  the  property,  is 
not  prohibited  by  statute,  is  not  against  public 
policy,  and  is  supported  by  sufficient  considera- 
tion. 

[Ed.  Note.— For  other  cases,  see  Attadiment, 
Cent.  Dig.  {§  609-622.] 

3.  Attachvent  «=3l89— OnrcEB's  Reckipt— 
Actions— Defenses. 

In  an  action  on  an  officer's  receipt,  executed 
to  release  attached  property,  the  obhgor  cannot 
object  that  the  judinnent  asainst  the  defendant 
io  the  principal  action  was  not  binding  upon  the 
obligor,  because  no  legal  service  was  made  of  the 
process,  nor  statutory  provisions  complied  with. 
[Ed.  Note. — For  other  cases,  see  Attachment. 
Cent  Dig.  f|  600-622.] 


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MoNERNEY  v.  DOWNS 


495 


4.  Attachment  ®=al90 — OmcEs's  Receipt- 
Actions — Admissibilitt  of  Evidence. 
lu  an  action  on  an  oflScer'g  receipt,  executed 
to  release  attached  property,  which  contained  a 
waiver  clause  providing  that  obligor  was  estop- 
ped from  denying  ownership  of  attached  prop- 
erty, testimony  tending  to  prove  that  defendant 
in  the  principal  action  was  not  the  owner  was 
inadmissible. 

[Ed.  Note.— For  other  cases,  see  Attachment, 
Gent.  Dig.  fS  G23-632.] 

Appeal  from  City  Court  of  New  Haven; 
John  R.  Booth,  Judge. 

Action  by  Peter  J.  McNemey  against  Wll- 
llam  S.  Downs.  Judgment  for  plaiutifT,  and 
defendant  appeals.    Affirmed. 

William  S.  Downs,  of  Derby,  in  pro.  per. 
David  M.  Rellly,  of  New  Haven,  for  appellea 

BORABACK,  J.  The  following  facts  ap- 
pear to  be  undisputed:  The  plaintiff  Is  a 
deputy  sheriff  in  and  for  the  county  of  New 
Haven.  On  the  80tb  day  of  August,  1915, 
the  plaintiff  had  in  his  hands  for  service  as 
such  deputy  sheriff  a  writ  of  attachment 
against  one  F.  W.  Skinner,  a  resident  of  the 
town  of  Derby,  in  favor  of  John  H.  Dillon 
and  William  H.  Douglas,  of  New  Haven, 
wliidi  writ  was  returnable  to  the  city  court 
of  New  Haven  on  September  13,  1915.  The 
plaintiff,  by  virtue  of  this  writ,  attached 
as  the  property  of  Skinner  certain  cigars 
and  liquors,  and  afterwards  took  an  offi- 
cer's receipt  for  the  same,  which  receipt  was 
signed  by  the  defendant  This  receipt  con- 
tained, among  others,  the  following  provi- 
sions: 

"Which  said  property  we  hereby,  for  a  valua- 
ble consideration,  a^ree  and  promise,  jointly  and 
severally,  to  redeliver  in  good  order  to  said 
officer  (or  any  officer  legally  authorized  to  re- 
ceive the  same),  on  demand,  or  in  default  there- 
of to  pay  the  sum  of  $60,  or  (if  demand  be  not 
made  oefore  judgment  is  rendered)  the  amount 
of  damages  and  costs  which  Rhall  be  recovered 
by  the  plaintiff  in  said  case,  if  the  same  shall 
fall  short  of  such  sum  ;  it  being  understood  that 
we  are  hereby  estopped  from  denying  that  the 
property  herein  described  has  been  attached  by 
said  officer,  and  that  we  have  received  the  same 
from  him,  and  is  the  property  of  said  defendant, 
and  of  the  value  herein  named.  Schedule  of 
property  attached,  viz.:  Cigars  and  liquors  of 
the  agreed  value  of  $60." 

Skinner  at  this  time  was  absent  from  the 
state  and  gone  to  parts  unknown,  and  a  true 
and  attested  copy  of  the  writ  of  attachment 
was  left  by  the  <^cer  with  a  O'Brien  for 
Skinner ;  O'Brien  at  this  time  having  charge 
of  the  attached  property.  On  February  11, 
1916,  Dillon  and  Douglas  obtained  a  judg- 
ment,  by  default,  in  the  city  court  of  New 
Haven,  against  Skinner  in  this  action.  On 
the  same  date  an  execution  was  Issued  on 
this  Judgment,  and  subsequently  returned  to 
the  city  court  wholly  unsatisfied.  This  judg- 
ment has  never  been  paid.  On  March  28, 
1916,  the  plaintiff  demanded  of  the  defend- 
ant the  property  attached  and  described  In 
the  officer's  receipt,  but  the  defendant  failed 
to  deliver  the  same.    On  the  same  date,  the 


plaintiff  demanded  of  the  defendant  payment 
in  satisfaction  of  the  Judgment  and  costs, 
but  the  defendant  failed  to  pay  the  same. 
Prior  to  the  demand  upon  the  defendant  by 
the  plaintiff  for  the  property  receipted  for, 
the  defendant  returned  and  surrendered  pos- 
session of  this  property  to  O'Brien  herein- 
before referred  to;  O'Brien  having  demand- 
ed the  same  from  the  defendant.. 

The  trial  court  reached  the  conclusion  that 
the  defendant  was,  by  the  terms  of  the  of- 
ficer's receipt,  estopped  from  denying  that 
the  property  described  in  this  receipt  was 
the  property  of  Skinner.  It  is  unnecessary 
to  consider  the  action  of  the  trial  court  in 
sustaining  a  demurrer  to  the  third  para- 
graph of  the  defendant's  answer,  as  the  same 
question  Is  presented  In  the  third  reason  of 
appeal,  which  avers  that  the  court  erred  in 
ruling: 

"That  the  defendant  was  by  the  terms  of  said 
officer's  receipt  estopped  from  denying  that  the 
property  described  in  said  officer's  receipt  was 
the  property  of  F.  W.  Skinner." 

In  1  Brandt  on  Suretyship  &  Guaranty 
(3d  Ed.)  S  52,  it  is  said: 

"The  general  rule  is  that  sureties  are  estop- 
ped to  deny  the  facts  recited  in  the  obliga- 
tions signed  by  them,  and  this  whether  the  re- 
citals are  true  or  false  in  fact.  Having  once 
solemnly  alleged  the  existence  of  the  facts,  they 
cannot  afterwards  be  heard  to  deny  it." 

[1]  As  a  rule  a  surety  cannot  deny  facts 
recited  in  his  obligation,  unless  such  recital 
was  Inserted  by  a  mistake;  and  he  cannot 
now  claim  that  a  bond  was  given  without 
consideration,  that  the  judicial  proceedings 
in  which  it  was  given  were  Irregular,  or  that 
the  necessary  preliminary  steps  were  not 
taken.  If  the  obligation  has  accomplished 
the  purpose  for  which  It  was  given,  the  sure- 
ty will  not  be  permitted,  thereafter,  to  free 
himself  from  its  disadvantages.  But  a  sure- 
ty is  not  estopped,  by  the  recitals  of  the 
bond,  from  questioning  the  legality  of  Its 
execution.    32  Cyc.  69. 

The  parties,  as  it  appears  from  this  bond, 
had  agreed  that  the  defendant  should  be 
estopped  by  the  terms  of  the  contract  from 
denying  that  the  property  had  been  attached 
by  the  officer,  that  it  had  been  received  from 
him,  and  that  it  was  the  property  of  tl»e 
defendant  Skinner.  It  appears  that  one  of 
the  express  purposes  of  this  written  contract 
was  to  exclude,  as  between  the  officer  and 
the  defendant,  the  iMsslbllity  of  the  latter 
challenging  the  right  of  Skinner  to  the  prop- 
erty attached.  Dejon  t.  Street,  78  Conn. 
337,  65  AU.  145. 

[2]  This  bond  was  voluntarily  given  by 
the  defendant,  upon  a  sufficient  consideration, 
and  such  an  undertaking  is  not  prohibited 
by  statute  or  against  public  policy.  The 
defendant  In  the  former  action,  or  his  agent, 
by  means  of  this  undertaking  upon  the  part 
of  the  defendant  in  the  present  case,  has 
secured  possession  of  the  property  of  Skin- 
ner, and  the  defendant.  Downs,  cannot  now 


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101  ATLANTIC  REPORTER 


(Conn. 


escape  the  liability  of  the  nonperformance  of 
his  agreement. 
[3]  The  defendant  also  contends  that: 
"The  judgment  against  Skioner  was  not  bind- 
ing upon  this  defendant,  because  no  legal  serv- 
ice was  made  of  the  process,  nor  the  provisions 
of  the  statute  complied  with." 

As  we  have  already  stated,  the  defendant 
cannot  now  claim  that  the  Judicial  proceed- 
ings in  which  this  receipt  was  given  were 
irregular,  or  that  the  necessary  preliminary 
steps  had  not  been  taken  before  the  Judg- 
ment was  rendered.  He  was  not  a  party  to 
the  original  action,  and  the  judgment  render- 
ed thereon  cannot  now  be  collaterally  attach- 
ed by  one  who  has  agreed  to  redeliver  the 
property  attached  on  Judgment  to  the  of- 
ficer, or  pay  the  damages  and  costs  recovered 
in  that  action.  Aside  from  this,  the  record 
discloses  that  this  property  was  lawfully  at- 
tached by  the  plaintiff,  who  it  appears  left  a 
true  and  attested  copy  of  the  original  writ 
of  attachment  with  the  person  having  charge 
of  the  property  of  Skinner,  who,  as  the 
finding  states,  was  absent  from  the  state 
and  in  parts  unknown  at  the  time  the  attach- 
ment was  made. 

[4]  In  view  of  what  we  have  already  stat- 
ed, it  is  unnecessary  to  discuss  the  defend- 
ant's claim  that  the  trial  court  erred  in  re- 
jecting his  testimony,  which  tended  to  prove 
that  the  defendant  Skinner  did  not  own  the 
property  receipted  for  when  it  was  attadied. 
It  was  not  admissible. 

Of  the  other  errors  assigned,  none  seem 
to  have  sufficient  merit  to  warrant  their 
discussion. 

There  is  no  error.  The  other  Judges  con- 
curred. 

(S2  Conn.  SS) 

STATE  T.  MAD  RIVER  CO. 

(Supreme  Court  of  Errors  of  Connecticut.    July 
e,  1917.) 

1.  Taxation    4=»150—CoBFoaATioNS— Water 

COMPANT. 

To  render  a  company  taxable  under  Pub. 
Acts  1915,  c.  292,  pt.  2,  it  must  have  been  prin- 
cipally engaged  in  selling  and  distributing  water 
and  must  have  derived  gross  earnings  from  such 
operation  within  the  state. 

[Ed.  Note.— For  other  cases,  tea  Taxation, 
Cent.  Dig.  i  279.] 

a  SaI£S  <S=>263— Nattjbe. 

Under  Pub.  Acts  1907,  c.  212,  J  1,  defining 
sales,  a  "sale"  implies  an  ownership  in  the  thing 
sold  and  the  passing  of  title. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  i!  746,  749-751,  763. 

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

8.  Taxation    <S=»159— Cobpokations— Wateb 

Company. 
Pub.  Acts  1915.  c.  292,  pt  2,  Uxing  compa- 
nies selling  and  distributing  water,  is  inapplica- 
ble to  a  concern  maintaining  reservoirs  to  ren- 
der a  stream's  flow  uniform  for  the  benefit  of  its 
stockholders  who  were  riparian  owners,  since 
there  was  no  sale. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  279.] 


Appeal  from  Superior  Court,  Hartford 
County:  Milton  A.  Shumway,  Judge. 

Application  by  the  State  of  Connecticat 
against  the  Mad  River  Company  to  determine 
the  amount  of  a  tax.  From  a  judgment  fix- 
ing the  amount  of  such  tax,  the  defendant  ap- 
peals. Reversed  and  remanded  for  rendition 
of  a  judgment  denying  the  application. 

Mad  river  is  a  small  tributary  of  the 
Naugatuck  river.  In  1866,  six  riparian  own- 
ers along  the  former  stream  entered  into  an 
agreement  by  the  terms  of  which  two  reser- 
voirs were  to  be  built  on  streams  which  fiow- 
ed  into  It,  and  an  agent  was  appointed  by 
them  to  buy  the  land  and  hold  the  same 
in  trust,  collecting  from  time  to  time  from  the 
parties  to  the  agreement  the  expenditures 
entailed  in  the  execution  of  the  enterprise 
In  certain  specified  portions.  In  1872,  this 
agreement  was  extended  to  include  a  third 
reservoir,  also  located  on  a  stream  tributary 
to  Mad  river.  Pursuant  to  these  agreementa, 
the  necessary  land  was  purchased  and  the 
reservoirs  built.  The  title  to  them  was  vest- 
ed in  a  trustee. 

In  1873,  the  defendant  was  chartered  by 
the  General  Assembly.  Its  purpose,  as  stated 
in  the  charter,  was  "to  maintain  and  improve 
the  water  power  by  the  means  of  reservoirs, 
cultivation  of  timber,  and  other  suitable 
means  on  the  stream  known  as  Mad  river 
*  •  *  and  upon  the  branches  and  sources  of 
said  stream  and  to  purchase  and  hold  certain 
improvements  already  made  thereon."  The 
corporation  took  over,  in  payment  for  its  stodc. 
aU  the  property  acquired  under  the  two  agree- 
ments recited,  and  the  parties  to  those  agree- 
ments became  its  stockholders.  Its  sole  prop- 
erty was,  and  still  is,  the  three  reservoirs 
together  with  their  dams  and  the  land  con- 
nected therewith.  It  neither  owns  nor  nti- 
llzes  any  canals,  pipes,  or  flumes.  It  lias  nev- 
er diverted  any  of  the  water  of  the  streams,. 
upon  which  ita  reservoirs  are  located,  fron» 
its  natural  course,  nor  has  it  the  means  or 
Instrumentalities  for  doing  so.  Ottie  dams  and 
reservoirs  are  operated  so  as  to  hold  back 
and  store  the  water  in  times  of  plenty  for 
release  at  such  other  times  and  In  such 
amounts  as  its  stockholders  may  desire.  The 
water  of  the  streams,  after  leaving  the  gates 
of  the  reservoirs,  Is  at  the  service  of  every 
lower  riparian  proprietor.  No  objection  has 
ever  been  made  by  any  such  proprietor,  not  a 
stockholder  in  the  defendant,  to  the  retention 
of  the  water  Impounded  and  economized  in 
the  reservoirs.  The  highest  site  owned  by 
any  of  the  stockholders  is  four  or  five  miles 
below  the  nearest  reserv<^r. 

For  a  long  time  It  has  l)een  customary 
for  the  ScovlU  Manufacturing  Company,  one 
of  the  defendant's  stockholders  acting  infor- 
mally as  its  manager,  to  advance  all  the  ex- 
penses of  maintenance  and  taxation,  and  ob- 
tain  reimbursement  from   the  other  stock- 


>For  otber  casM  —  um»  topto  and  KBr-NUUBBR  ID  all  Kej-Numbared  Dlguta  and  IndMH 


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Conn.) 


TTERNET  v.  MARTONE 


497 


holders  In  prc^orttons  agrreed  upon  at  the 
annual  meetings,  Hiese  proportions  have  va- 
ried from  time  to  time.  No  two  stockholders 
own  the  same  amount  of  stoclc,  and  contribu- 
tions made  by  the  several  stockholders 
towards  the  payment  of  the  expenses  of  the 
corporation  have  borne  no  fixed  relation  to 
the  amount  of  stock  owned.  Each  stockhold- 
er Is  represented  on  its  board  of  directors. 
The  revenues  of  the  corporation  are  confined 
to  the  contributions  made  to  meet  the  ex- 
penses of  maintenance  and  taxation  as  above 
stated. 

Arthur  F,  Ells,  of  Waterbury,  for  appel- 
lant George  E.  Hlnman,  Atty.  Gen.,  for  the 
State. 

PRENTICE,  C.  J.  (after  stating  the  facts 
as  above).  [1]  The  Attorney  General  brings 
this  application  under  section  15  of  chapter 
292  of  the  Public  Acts  of  1915  for  an  order 
for  the  payment  by  the  defendant  to  the  state 
of  an  amount  claimed  to  be  due  under  and  by 
virtue  of  the  provisions  of  part  2  of  that  act, 
being  one  providing  for  the  taxation  of 
certain  corporations,  partnerships,  and  so 
forth.  To  bring  the  defendant  within  the 
operation  of  these  provisions  three  condi-' 
tions  must  be  met,  to  wit:  (1)  Its  principal 
business  must  have  been  that  of  operating  a 
system  of  waterworks;  (2)  that  operation 
must  have  been  for  the  purpose  of  selling 
and  distributing  water  for  domestic  or  power 
purposes;  and  (3)  it  must  have  had  gross 
earnings  from  such  operation  in  this  state. 

[2,  31  It  may  be  assumed  without  decision 
that  the  first  and  last  named  of  these  condi- 
tions were  satisfied  in  the  defendant's  case. 
The  second  surely  was  not.  That  condition 
embraces  both  the  sale  and  distribution  of 
water.  If  it  can  reasonably  be  said  that  al- 
lowing the  water  of  a  stream  to  flow  in  Its 
accustomed  dunnels  and  be  used  and  en- 
Joyed  freely  by  those  who  as  riparian  owners 
are  entitled  to  use  and  enjoy  It  Is  distribution 
within  the  meaning  of  the  statute,  the  ele- 
ment of  sale  of  the  water  thus  distributed 
clearly  is  wanting.  A  "sale"  Implies  an  own- 
ership in  the  thing  sold  and  a  transfer  of 
that  ownership  to  another.  P.  A.  1907,  c  212, 
i  1.  It  Involves  the  passing  of  title.  The 
defendant  never  has  had  title  to  the  water 
which  It  has  detained  in  Its  reservoirs,  and 
It  has  never  undertaken  to  give  to  any  one  ti- 
tle to  It  or  to  any  part  of  it.  It  has  never  at- 
tempted either  to  appropriate  any  water,  or 
to  divert  any  from  its  natural  channels,  or 
to  restrict  lie  benefldal  enjoyment  of  the 
M'aters  of  the  streams  by  lower  prc^rletors 
entitled  to  such  enjoyment.  The  only  thing 
that  It  has  sought  or  accomplished  Is  a  con- 
trol of  the  flow  of  the  water  In  such  manner 
tbat  through  avoidance  of  waste  at  times 
and  of  shortage  at  other  times  the  Interest 
of  riparian  proprietors  should  be  more  bene- 
ficially served  than  would  otherwise  be  the 


case.  The  purpose  of  the  defendant  is  not 
sale,  but  conservation.  It  exists  for  the  ren- 
dition of  service,  and  not  for  dealing  in  a 
salable  commodity. 

There  Is  error,  the  Judgment  is  set  aside, 
and  the  cause  remanded  for  the  rendition 
of  Judgment  denying  the  application.  The 
other  Judges  concurred. 


(M  Conn.  93) 
TIERNET  V.  MARTONE  et  ux. 

(Supreme  Court  of  Errors  of  Connecticut.    July 
6,  1917.) 

1.  Shebiffb  ano  Constabuis  ®=>87— Sxrviob 
OP  Writ— Duties  of  Officer. 

An  officer,  duly  qualified  with  a  lawful  pre- 
cept, is  not  required  to  declare  by  what  autnor- 
ity  he  acts  nntil  the  authority  is  questioned. 

[Ed.  Note.— For  other  cases,  see  Sheriffs  and 
Constables,  Cent  Dig.  S  119.] 

2.  Trial   «=»140(1)— Questions   fob   Jdbt— 
CredibiI/Itt  of  Witnesses. 

It  is  within  the  province  of  the  jury  to  de- 
termine the  credibility  of  witnesses. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  334.] 

3.  Assault  and  Battery  <8=>40— Excessivb 
Damages— Personal   Injuries. 

Where  an  officer,  attempting  to  serve  a  writ 
of  attachment,  was  assaulted  and  received  severe 
bruises,  a  broken  nose,  and  was  incapacitated 
to  follow  his  usual  vocation  for  two  weeks,  and 
incurred  a  property  loss  of  $S7  on  account  of  liis 
injuries,  a  verdict  of  $300  was  not  excessive. 

[Ed.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  {  55.] 

4.  Assault  and  Battery  a   1 11    Civil  Lia- 
BiLiTT— Joint  Verdict. 

Where  plaintiff  in  serving  a  writ  of  attach- 
ment was  assaulted  by  defendant  and  bis  wife  at 
the  same  time,  a  joint  verdict  was  warranted. 

[Ed.  Note. — For  other  cases,  see  Assault  and 
Battery,  Cent  Big.  {  63.] 

Appeal  from  District  Coort  of  Waterbury; 
Francis  T.  Reeves,  Judge. 

Action  by  John  D.  Tiemey  against  Nun- 
sianta  Martone  and  wife.  Judgment  for 
plaintiff,  and  defendants  appeal.    No  error. 

The  plaintiff  had  a  writ  directing  him  to 
attach  the  property  of  Rocco  Martone,  a  son 
of  the  defendants.  The  defendants  in  their 
answer  Justify  the  assault  alleging  that  when 
the  plaintiff  attempted  to  attach  the  son's 
automobile,  the  defendants  informed  the 
plaintiff  that  the  son  was  Indebted  to  his 
mother  the  defendant  Philomena  in  the  sum 
of  $25  for  storage  of  the  automobile,  and  that 
it  could  not  be  moved  until  the  storage  was 
paid,  and  that  thereupon  the  plaintiff  as- 
saulted the  defendant  Nunzlante,  and  the  de- 
fendant Philomena  went  to  her  husband's 
assistance,  and  used  no  more  force  than  was 
necessary  to  protect  themselves  from  the 
plaintiff's  assault  The  cause  was  tried  to 
the  Jury,  and  they  rendered  a  verdict  for 
the  plaintiff  against  both  defendants  and 
assessed  damages  at  $300. 


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498 


101  AXIiANTTO  hkfortbr 


(C<H1II. 


Charles  W.  Banby,  of  Waterbury,  for  ap- 
pellants. Joba  J.  O'Neill,  of  Waterbury,  for 
appellee. 

SHUMWAT,  J.  (after  stating  the  facts  as 
above).  The  defendants  complain  that  the 
court  erred  in  its  charge  In  Ita  refusal  to 
charge  as  retjuested  and  by  the  refusal  of  the 
court  to  set  aside  the  verdict  as  against  the 
evidence  and  because  the  damages  found 
were  excessive,  so  far  as  appears  from  the 
defendants'  brief,  the  claimed  errors  in  the 
charge  and  refusal  to  charge  are  not  pressed 
for  consideration  by  this  court.  But,  how- 
•ever,  if  they  are,  the  court  complied  sub- 
stantially with  the  requests  to  charge,  ex- 
cept one,  as  follows: 

"If  you  find  that  the  plaintiff  did  not  dis- 
close to  the  defendants  that  be  was  an  officer 
and  bad  a  writ  to  serve,  then  you  would  be 
justified  in  reaching  the  conclusion  that  the 
plaintiff  was  a  trespasser,  and  that  the  de- 
fendants had  a  right  to  order  him  from  the 
premises  and  use  force  in  ejecting  him." 

[1]  The  defendant  was  not  entitled  to  have 
the  Jury  so  Instructed.  An  ofl^cer  duly  qual- 
ified with  a  lawful  precept  Is  not  required  to 
declare  by  what  authority  he  acts  until  the 
authority  Is  questioned.  It  would  be  better 
In  the  orderly  performance  of  his  duties  for 
an  officer  to  inform  all  who  may  be  immedi- 
ately concerned  that  he  Is  an  ofllcer  with  a 
Jegal  process  to  serve  as  was  done  In  this  case. 
The  defendants'  answer  alleges  that  the 
plaintiff  demanded  the  payment  of  a  bill.  It 
appeared  In  the  evidence  that  the  defendants 
fully  understood  the  plaintiff  was  an  ofl3cer 
and  about  to  malce  an  attachment.  It  is  al- 
so apparent  that  the  affray  between  the  plaln- 
llff  and  defendant  began  because  of  the  plain- 
tiff's declaring  his  Intention  to  seize  the  auto- 
inoblle  by  attaching  It  and  the  defendants 
objecting  because  Mrs.  Martone  claimed  a 
lien  on  It  for  storage.  Nunzlante  Martone 
testified  that  the  plaintiff  made  an  unpro- 
voked assault  on  him  at  the  time  when  he 
•claimed  his  wife  bad  a  lien  on  the  automobile, 
while  the  plaintiff  testified  that  Nunzlante 
assaulted  him  as  he  started  to  move  It  and 
attempted  to  obstruct  him  In  the  service  of 
the  writ. 

[2]  The  defendants*  main  c<H)tentlon  in  the 
brief  Is  that  th«  trial  court  should  have  grant- 
fid  a  new  trial  because  the  verdict  was 
against  the  evidence  and  the  damages  were 
excessive.  The  verdict  was  not  against  the 
evidence.  The  evidence  was  so  conflicting 
that  the  credibility  of  the  witnesses  became 
all  Important,  and  surely  It  was  within  the 
province  of  the  jury  to  determine  where  the 
truth  lay,  If  possible. 

[3]  It  cannot  be  said  that  $300  was  an  ex- 
cessive verdlct<  as  the  plaintiff  testified  he 
received  severe  bruises,  a  brolcen  nose,  and 
was  Incapacitated  to  follow  his  usual  voca- 
tion for  two  weeks,  and  incurred  a  property 


loss  and  expenditure  of  $87  on  account  of 
his  Injuries. 

[4]  It  Is  suggested  that  the  court  erred  in 
accepting  a  joint  verdict  against  the  defend- 
ants ;  the  contention  being  that  If  the  defend- 
ant Phllomena  assaulted  the  plaintiff.  It  was 
a  separate  assault  and  not  the  one  In  which 
her  husband  was  concerned.  Evidence  was 
offered  tending  to  prove  that,  while  the  plain- 
tiff and  defendant  Nunzlante  were  struggling 
upon  the  ground,  the  defendant  Philomeoa 
struck  the  plaintiff  several  times  with  a  piece 
of  stove  wood.  If  the  jury  found  the  facta 
as  stated,  they  were  properly  Instructed  that 
the  defendants  committed  a  Joint  assault,  and 
were  Jointly  liable.  There  Is  no  error.  The 
other  Judges  concurred. 

(SI  Conn.  29) 
nOTT  T.  OITY  OF  NEW  HAVEN  et  aL 

(Supreme  Court  of  Errors  of  Connecticut.    July 
6,  1917.) 

Municipal  Corporations  ®=>705(1)— Stbeets 
— Danoerogs  Agencies— Negligence. 
If  an  express  wagon  driver  ought,  in  the 
exercise  of  due  care,  to  have  seen  the  sagging 
wire  from  a  broken  trolley  wire  pole  and  to  have 
appreciated  the  danger  of  its  becoming  entan- 
gled with  Ills  truck  and  the  possibility  of  pulling 
down  the  pole,  he  was  negUgeut  in  driving  into 
the  wire,  and  his  negligence  was  a  contributing 
cause  to  the  death  of  one  struck  by  the  falling 
wire. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  §  1515.] 

Appeal  from  Superior  Court,  New  Haven 
County;  Howard  J.  Curtis  and  £klwin  B. 
Gager,  Judges. 

Action  by  Grace  L.  Hott,  administratrix, 
against  the  City  of  New  Haven  and  others. 
From  a  verdict  for  plaintiff  and  denial  of 
motion  to  set  aside  the  verdict,  defendant 
Adains  Express'  Company  appeals.    No  error. 

Action  to  recover  damages  for  negligence 
brought  against  the  city  of  New  Haven,  tbe 
Connecticut  Company,  and  the  Adains  Eix- 
press  Company  to  the  superior  court  for  New 
Haven  Ckninty,  where  demurrers  by  the  dty 
of  New  Haven  and  the  Connecticut  Company 
were  sustained  (Curtis,  J.),  and  the  case 
against  the  Adams  Express  Company  tried  to 
the  Jury  before  Gager,  J.  Verdict  for  the 
plaintiff,  motion  to  set  aside  verdict  denied, 
and  appeal  by  the  Adams  Bxpress  Ckanpany. 
No  error. 

Edmund  Zacher  and  William  B.  Ely,  both 
of  New  Haven,  for  appellant  Robert  J. 
Woodruff  and  James  J.  Palmer,  both  of  New 
Haven,  for  appellee. 

PER  CURIAM.  A  trolley  pole  fell  upon 
and  killed  the  plaintiff's  IntesUte.  The  de- 
fendant ascribed  the  cause  of  the  fall  of  tlie 
pole  to  the  fireman  engaged  in  working 
around  and  upon  5t  after  It  had  been  cracked 
and  bent  by  the  Impact  of  a  fire  engine  run- 


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Conn.) 


MASSET  ▼.  FOOTE 


49» 


ning  Into  It.  The  plaintiff  ascribed  the  cause 
to  the  defendant  express  company's  anto- 
track  becoming  entangled  in  one  of  the  'wires 
attached  to  it  which  sagged  through  the  bend- 
ing of  the  pole,  and  In  this  way  the  truck 
pulled  down  the  pole  upon  the  plalntUTs  In- 
testate. 

Our  reading  of  the  evidence  satisfies  us 
that  the  Jury  might  reasonably  hare  found 
the  cause  of  the  fall  of  the  pole  as  the  plain- 
tiff claimed.  And,  further,  the  Jury  might 
reasonably  have  found  that  as  the  truck  pro- 
ceeded down  George  street  Its  driver  ought 
In  the  exercise  of  due  care  to  have  seen  the 
sagging  wire  and  to  have  appreciated  the 
danger  of  its  becoming  entangled  with  his 
truck  and  liable  to  pull  down  the  pole  and 
Injure  some  one  of  those  in  the  street  near 
by.  Further,  the  Jury  might  have  found  that 
the  driver  of  the  truck  drove  on  after  having 
received  adequate  warning.  If  the  Jury  so 
found,  and  the  verdict  Indicates  this,  the  con- 
clusion that  the  conduct  of  the  driver  was 
negligent  and  was  a  material  and  contribu- 
ting cause  of  Hott's  death  necessarily  fol- 
lowed. 

The  evidence  would  hare  Justified  the  Jury 
In  finding  that  Hott  Just  prior  to  being  struck 
was  in  the  middle  of  the  highway  in  a  posi- 
tion of  no  apparent  danger  and  at  such  a 
distance  from  tliis  poIe»  and  surrounded  as 
It  was  by  people,  that  he  could  not  reason- 
ably have  been  expected  to  have  seen  that  the 
pole  was  in  danger  of  falling,  and  that  in 
fbct  it  was  not  in  such  danger  until  pulled 
down  by  the  truck.  The  conclusion  of  due 
care,  which  the  verdict  indicates  the  Jury 
found,  cannot  be  said  to  have  been  found  up- 
on inadequate  evidence. 

There  is  no  error.   All  concur. 


(U  Cona.  as) 

MASSEY  V.  FOOTE. 

(Supreme  Court  of  Errors  of  Connecticut. 

July  6,  1917.) 

1.  CotTBTs  ®=»201  —  Pbobate  Court  —  Juais- 

DICWOIT. 

A  probate  court's  JuriBdiction  la  entirely 
■tatntory,  and  it  possesses  only  the  necessary 
incidental  powers. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent 
Dig.  SI  86,  87.] 

2l  Exkoutobs  and  Administbatobs  4s»816(4) 

— jDBISDICnON  or  COXTBTB. 
Gen.  St  1902,  {  203,  Mnpowering  probate 
conrts  to  revoke  ex  parte  decrees  before  appeal 
and  before  final  settlement  of  an  estate,  etc, 
does  not  authorize  revoking  a  distribution  order 
made  upon  notice,  and  from  which  an  appeal 
had  been  taken. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  f  1306.] 

Appeal  from  Superior  Court  New  London 
County;   Joel  H.  Reed,  Judge. 

Proceedings  by  Lucy  A.  Massey  as  guardian 
of  Lydla  L.  Main  Foote,  for  the  allowance 
of  her   account  as   guardian    against  said 


ward.  A  probate  court  decree,  disallowing 
the  account,  was  affirmed  by  the  superior 
court,  and  the  guardian  appeals.    Affirmed. 

C.  Hadlai  Hull,  of  New  London,  for  ap- 
pellant Edmund  W.  Perkins,  of  Norwich, 
for  appellee. 

SHUMWAT,  J.  The  only  debatable  ques- 
tion in  this  case  involves  an  interpretation 
of  section  203  of  the  General  Statute.  Th» 
part  of  the  statute  bearing  uxmn  the  question 
reads  thus: 

"Any  court  of  probate  may  modify  or  revoke 
any  order  or  decree  made  by  it  ex  ^arte  before- 
any  appeal  therefrom,  and  if  made  va  reference 
to  the  settlement  of  any  estate,  before  the  final 
settlement  •  •  •  upon  the  written  applica- 
tion of  any  person  interested  therein.    •    ♦    •  •' 

[1]  This  court  has  held  and  reaffirmed 
that  the  entire  Jurisdiction  of  probate  courta 
is  statutory,  special,  and  limited.  In  thfr 
exercise  of  such  statutory  Jurisdiction  they 
possess  such  Incidental  and  implied  powers, 
legal  and  equitable,  and  such  only,  as  are- 
necessary  to  the  entire  performance  of  all 
the  dDtles  Imposed  upon  them  by  law^ 
Potwlne's  Appeal,  31  Conn.  381;  Hall  v.  Pier- 
son,  63  Conn.  332,  28  Atl.  544;  Schutte  v. 
Douglass,  90  Conn.  S29,  97  Atl.  906.  In 
passing  upon  the  jurisdiction  of  probate 
courts,  this  court  has  considered  also  the- 
power  of  probate  courts  to  modify  or  set 
aside  its  orders  and  decrees.  In  this  case 
now  under  consideration  only  such  facts  aa 
are  material  need  be  recited. 

It  appears  that  William  L.  Main  died  in 
1890,  leaving  a  will  which  was  duly  offered 
for  probate  and  was  approved.  The  estate 
was  distributed  by  order  of  the  probate 
court  A  portion  thereof  was  distributed  ta 
Amos  W.  Main,  a  son  of  William  L.  Main. 
Amos  W.  Main  died  in  July,  1901,  leaving  a 
widow,  the  present  plaintiff.  She  was  ap- 
pointed administratrix  upon  her  husband's 
estate  on  July  18,  1901.  She  duly  filed  an 
Inventory  and  charged  herself  with  this  item. 
The  Interest  of  said  deceased  in  his  estate  of 
his  late  father  was  estimated  at  $2,000.  Od 
the  6tb  day  of  October,  1908,  distributors  wer» 
appointed  to  distribute  the  estate.  The 
court,  having  ascertained  the  heirs  and  dis- 
tributees of  the  estate  of  Amos  W.  Main,  or- 
dered the  estate  distributed  to  them.  To- 
the  present  plaintiff  there  was  distributed  as 
follows:  One  undivided  third  of  the  dis- 
tributive share  of  what  will  remain  for  dis- 
tribution of  the  estate  of  William  L.  Main 
that  by  the  terms  of  his  will  would  go  to- 
Amos  Main  on  the  death  of  the  widow  of 
William  L.  Main,  had  Amos  outlived  her. 
At  the  time  of  Amos  W.  Main's  death  he 
had  a  minor  daughter,  Lydia  L.  Main,  the 
present  defendant,  and  a  minor  son,  Clifford 
M.  Main.  On  the  27th  day  of  July,  1901,  th» 
plaintiff  was  appointed  guardian  of  her  ml- 
nor  daughter,  Lydia  l>.  Main.  Hie  widow  of 
William  L.  Main  died  in  April,  1913. 


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500 


101  ATLANTIC  REPORTER 


(Conn. 


By  the  distribution  of  the  estate  of  Amos  I 
Main  on  October  6, 1908,  which  was  approved 
by  the  probate  court,  one-ttdrd  of  what  rfe- 
mained  of  William  L.  Main's  estate  was  dis- 
tributed to  the  plaintiff.  On  the  8th  day  of 
April,  1914,  the  probate  court  ordered  the 
balance  of  the  estate  of  William  L.  Main  to 
be  distributed  to  the  beneficiaries  named  In 
the  will,  and  these  beneficiaries  had  been  as- 
certained and  adjudicated  by  the  decree  of 
the  court  of  October  6, 1906.  From  the  order 
of  the  court  of  April  8,  1914,  one  of  the  ez 
ecutors  of  the  will  of  William  L.  Main  ap- 
pealed to  the  superior  court,  which  appeal 
was  pending  in  said  court  until  October  27, 
1914.  In  September,  1914,  the  executors  of 
William  L.  Main's  estate  petitioned  the  pro- 
bate court,  setting  out  that  the  order  of 
April  8th  was  Informal,  incorrect,  and  er- 
roneous, and  on  the  27th  day  of  October, 
1914,  that  court  made  the  following  order: 

"Ttiat  the  order  passed  on  the  8th  day  of 
April  be,  and  is  hereby,  reconsidered  and  amend- 
ed to  read  as  follows.  *  •  •  The  heirs  at 
law  of  said  Amos  Main  are  found  to  be  his  two 
minor  children,  Lydia  L.  Main  and  Clifford  M. 
Main,  Mrs.  I/ucy  Massey  being  their  guardian, 
each  of  said  two  children  tailing  one-half  of 
said  balance^' 

— ^thus  giving  nothing  to  the  widow.  This 
procedure  certainly  constituted  a  revocation 
of  the  order  of  April  8th  and  if  the  probate 
court  bad  authority  to  do  this,  the  action  of 
the  superior  court,  affirming  the  order  of  Oc- 
tober 27,  1914,  should  stand;  otherwise  it 
should  be  revoked. 

[2]  The  statute  above  quoted  gives  the  pro- 
bate courts  authority  to  modify  or  revoke  its 
decrees  made  ex  parte  only  before  an  appeal 
is  taken.  But  in  this  case  an  appeal  was 
taken,  and  the  order  was  not  made  ex  parte, 
but  upon  notice.  In  the  case,  Delehanty  v. 
Pitkin  et  al.,  76  Conn.  412,  56  Atl.  881,  the 
power  of  probate  court  over  its  decrees  was 
fully  considered,  and  there  It  was  held  that 
a  probate  court  had  no  authority  to  revoke 
its  decree,  admitting  to  probate  a  document 
purporting  to  be  a  last  will  and  testament, 
although  that  decree  was  obtained  by  fraud. 
The  court  in  the  case  last  named  say  It  was 
at  that  time  a  "question  of  first  impression 
In  this  state,"  though  the  "question  was  rec- 
ognized, but  not  decided,  in  Potwine's  Ap- 
peal, 31  Conn.  381."  As  indicating  how  that 
decision  was  regarded,  the  reporter  In  the 
Potwine  Case  appended  to  the  opinion  a 
quotation  from  Pettee  v.  Wilmarth,  5  Allen 
(Mass.)  144,  in  which  this  pertinent  Clause 
appears: 

"If  he  [the  probate  judge]  could  rescind  his 
first  decree,  he  might  rescind  the  second,  and 
so  on  indefinitely:  and  there  could  be  no  cer- 
tainty that  any  decree  had  finally  established 
any  party's  rights,  but  every  person  in  wliose 
favor  a  decree  had  been  obtained  would  liold  it 
precariously  at  the  discretion  of  the  judge  who 
passed  it" 

The  doctrine  of  Delehanty  v.  Pitkin  et  aL 
is  affirmed  in  Sdiutte  v.  Douglass,  90  Conn. 


529,  97  Atl.  906,  and  It  Is  now  so  well  settled 
as  to  lie  no  longer  open  to  question. 

It  Is,  however,  contended  in  the  appellee's 
brief  that  the  power  of  the  probate  court  to 
revoke  decrees  extends,  not  alone  to  ex  parte 
orders,  but  to  orders  in  reference  to  the  set- 
tlement of  any  estate  before  final  settlement; 
that  the  word  "and"  conjoining  the  phrases 
in  the  statute  above  cited  "order  and  decree 
made  by  it  ex  parte,"  "and  if  made  In  ref- 
erence to  the  settlement  of  any  estate," 
should  be  read  "or,"  thus  giving  the  probate 
court  power  to  revoke  or  modify  Its  decree  In 
both  cases.  No  such  construction  can  fairly 
be  put  upon  the  statute;  the  language  used 
and  its  meaning  is  too  dear  to  permit  It. 
There  Is  error  in  the  Judgment  of  the  su- 
perior court,  a  new  trial  is  ordered,  and  a 
proper  guardian's  account  should  be  allowed 
pursuant  to  the  probate  decree  of  AptU  8, 
1914. 

The  other  Judges  concurred, 

~^°°™"  (M  Conn.  13) 

ROCHESTER  DISTILUNO  dO.  ▼.  GELOSO. 
(Supreme  Court  of  Errora  of  (Connecticut.    July 
6,  1917.) 

1.  Sausb   «=s>81(2)— Pkbfobuaitck— Tike   fob 
Deuvkbt. 

In  the  absence  of  agreement  as  to  the  time 
in  the  contract,  the  law  implies  the  delivery  of 
the  goods  sold  in  a  reasonable  time. 

[Ed.  Note.— For  other  caaea,  see  Sales,  C!enb 
Dig.  i  2ia] 

2.  Appeal  and  Bsbob  «=>100S(1)— Saues  e=* 
182(1)— Pebfobilakci  —  TuiB  fob  Pebfobk- 

ANCE. 

It  is  ordinarily  a  qnestion  of  fact  and  the 
determination  of  the  trial  court  is  conclusive 
as  to  what  would  be  a  reasonable  time  for  per- 
formance of  a  contract  which  fails  to  state  the 
time, 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  3955;  Sales,  Cent  Dig.  { 
492.] 

3.  Saucs    ®=»123— Pebfobuance— fREBCissioir 

OF  CONTBACT. 

Where  defendant  purchased  whisky  from 
plaintiff,  who  agreed  to  supply  advertising  ma- 
terial and  watches,  the  whisky  being  left  in 
bond,  and  defendant  agreed  to  pay  a  sum  down 
and  the  balance  in  monthly  installments,  and  he 
made  his  first  payment,  withdrew  none  of  the 
liquor  from  bond,  and  made  no  demand  for  the 
advertising  material  and  watches,  be  could  not 
on  due  day  of  the  first  note  repudiate  the  agree- 
ment, tender  back  the  bond  certificates,  and  re- 
cover bis  first  payment 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  i  302.] 

Appeal  from  Court  of  Common  Pleas,  New 
Haven  County ;  Isaac  Wolfe,  Judge. 

Action  by  the  Rochester  Distilling  Com- 
pany against  John  Geioso.  Judgment  for 
plaintiff,  and  defendant  appeals.     No  error. 

Robert  L.  Munger,  of  Ansonla,  for  appel- 
lant Alfred  C.  Baldwin  and  Harold  E.  Drew, 
both  of  Derby,  for  appellee. 

WHEELER,  J.  The  plaintiff,  a  wholesale, 
and  the  defendant,  a  retail,  liquor  dealer. 


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Conn.) 


ROCHESTER  DlSTHiMNG  CO.  v.  GELOSO 


601 


on  June  3,  1015,  entered  Into  a  contract  of 
sale  of  15  barrels  of  whisky,  by  the  terms  of 
which  contract  the  plaintiff  agreed  to  sell 
to  the  defendant  the  whisky  In  bond  and  to 
deliver  the  same  by  three  certificates,  certi- 
fying that  the  whisky  was  stored  lu  bond, 
subject  to  the  order  of  the  defendant  The 
plaintiff  farther  agreed  to  pay  the  storage 
Insurance  on  the  same,  and  to  send  to  the  de- 
fendant various  articles  of  advertising  mat- 
ter, including  six  watches,  and  agreed  that. 
If  these  were  not  received,  the  defendant 
should  have  the  right  to  cancel  the  notes 
which  the  defendant  agreed  to  give  as  part 
«t  its  consideration  for  the  purchase. 

The  defendant  in  consideration  of  the 
agreements  of  the  platntUf  agreed  to  pay 
$108.98  in  cash,  and  to  give  to  the  plaintiff 
18  notes,  each  for  $30,  payable  serially  30 
days  from  date,  60  days  from  date,  and  so 
on,  until  the  last  note  in  the  series  became 
payable.  The  certificates  and  notes  were  du- 
ly delivered  and  the  $108.08  In  cash  paid,  and 
thereupon  the  contract  became  executed  and 
complete,  except  as  to  the  delivery  of  the  ad- 
vertising matter.  The  purpose  of  the  adver- 
tising matter  was  to  call  the  attention  of  the 
public  to  the  fact  that  this  particular  brand 
of  whisky  which  the  defendant  advertised  was 
on  sale  by  him. 

[1,2]  No  time  was  agrreed  upon  for  the 
delivery  of  this  advertising  material.  In 
the  absence  of  an  agreement  as  to  the  time, 
the  parties  concur  in  the  opinion  that  the  law 
Implies  the  delivery  of  the  advertising  mate- 
rial In  a  reasonable  time.  What  would  be  a 
reasonable  time  for  such  delivery  depends 
upon  the  terms  of  the  sale  and  the  circum- 
stances surrounding  the  sale.  And  this  ordi- 
narily is  a  question  of  fact,  and  the  condu- 
Bion  of  the  trial  court  conclusive,  unless  the 
time  found  to  have  been  reasonable  was  so 
short  or  so  long  that  a  court  must  hold  as 
matter  of  law  the  finding  erroneous.  Loomis 
V.  Norman  Printers'  Supply  Co.,  81  Conn. 
843.  347,  71  Atl.  358. 

Shortly  after  the  contract  was  entered  into 
the  plaintiff  began  the  preparation  of  the 
advertising  material  tor  shipment  and  placed 
its  order  for  the  manufacture  of  the  watches 
with  the  manufacturer.  It  is  the  plaintiff's 
eastern  to  ship  to  a  customer  all  of  the  ad- 
vertising material  agreed  to  be  furnished  him 
when  the  order  is  substantially  complied 
witb.  It  is  also  Its  custom  to  ship  this  mate- 
rial as  soon  as  it  Is  notified  that  the  retail 
dealer  has  withdrawn  any  of  the  whisky 
from  bond,  although  sometimes  the  ship- 
ment is  made  at  an  earlier  date.  The  defend- 
ant did  not  at  any  time  withdraw  any  of 
tbc  whisky  from  bond. 

On  July  3,  1015,  the  first  of  the  notes  was 


presented  for  payment,  and  the  same  refused. 
At  this  time  none  of  the  advertising  matter 
hud  been  delivered  to  the  defendant.  On 
July  3, 1015,  the  defendant  notified  the  plain- 
tiff that  by  reason  of  the  failure  of  the  plain- 
tiff to  deliver  the  advertising  matter  he  can- 
celed the  notes  and  asked  for  the  return  of 
the  remaining  notes  and  the  $106.98,  and  be 
thereupon  returned  to  the  plaintiff  the  three 
certificates  for  whisky  in  bond. 

On  July  14,  1015,  the  plaintiff  shipped  all 
of  the  advertising  matter  except  the  watches 
to  the  defendant,  but  upon  tender  to  him  he 
refused  to  accept  it  At  the  date  of  maturity 
of  the  first  note  the  watches  were  in  process 
of  manufacture.  And  at  the  date  of  maturi- 
ty of  the  second  note  on  August  3,  1015,  and 
at  the  time  of  the  institution  of  this  action, 
the  watches  had  not  been  completed  by  the 
manufacturer. 
In  his  brief  the  defendant  says: 
"The  appeal  presents  a  single  question,  wheth- 
er or  not,  according  to  the  specific  terms  of  this 
written  contract,  the  defendant  did  not  have  the 
right  to  refuse  to  pay  any  of  the  notes  he  had 
given  for  the  purchase  of  the  whisky  if  the  ma- 
terial described  in  the  memorandum  was  not  de- 
livered until  after  the  maturity  of  the  first  note." 

[3]  The  right  to  cancel  the  notes  at  the 
maturity  of  the  fliBt  note  would  be  undoubt- 
ed provided  the  failure  to  deliver  the  adver- 
tising material  prior  to  that  time  was  un- 
reasonable. There  is  no  relation  between  the 
period  of  delivery  of  the  advertising  material 
and  the  maturity  of  the  first  note  so  far  as 
the  finding  informs  us.  The  defendant  did 
not  deem  this  delivery  essential  to  the  begin- 
ning of  the  contract;  for  he  paid  in  $106.98  at 
its  execution,  when  he  must  have  known  some 
time  would  elapse  before  he  received  this 
material.  The  defendant  had  no  occasion  to 
make  use  of  the  advertising  material  prior  to 
the  institution  of  this  action,  since  at  no  time 
did  he  withdraw  any  of  the  whisky  In  bond. 
He  at  no  time  requested  the  delivery  of  the 
advertising  materlaL  So  far  as  appears,  up 
to  the  time  when  this  action  was  begun  the 
platntiff  had  done  everthing  that  could  be 
reasonably  expected  of  it  to  procure  the 
watches. 

The  conclusion  of  the  trial  court  that  the 
defendant  was  not  legally  Justified  in  refus- 
ing to  accept  these  articles,  and  that  the 
plaintiff  was  entitled  to  a  Judgment  for  the 
amount  of  said  notes,  necessarily  Involved  a 
finding  that  the  failure  to  deliver  all  of  the 
advertising  matter  prior  to  the  maturity  of 
the  first  note,  and  the  failure  to  deliver  the 
watches  prior  to  the  institution  of  this  ac- 
tion, was  not  unreasonable. 

In  our  view  the  finding  of  the  trial  court 
cannot  be  said  to  be  unwarranted  in  law. 

There  is  no  error.  The  other  Judges  con- 
curred. 


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502 


101  ATLANTIC  REPORTER 


(Omis. 


(92  Conn.  11) 

COAST  &  LAKES  CONTRAOTING  CORP.  v. 

MARTIN  et  aL 

(Snpreme  Oourt  of  Erroni  of  Connecticut    July 

e,  191T.) 

1.  Execution  «=»129  —  Levy  —  Requisite*— 
"Manufactuotno  ok  Mechanical  Estab- 

UBHMENT"—  "  MeCHANICAI." 

Under  Gen.  St  1902,  {  Bll,  aa  to  levy  of  ex- 
ecution on  machinery,  a  stone  quarry  wherein 
air  compressors  and  steam  en^rines  are  operated 
is  a  "manufacturing  or  mechanical  eetablish- 
ment"  so  that  a  levy  upon  the  machinery  is 
valid,  though  the  madiinery  is  not  removable; 
the  word  "mechanical"  meaning  pertaining  to 
machinery. 

[Ed.  Note.— For  other  cases,  see  Execution, 
Cent  Dig.  SS  29»-801.] 

2.  Attachment   «=»322— Lett— SumcnswcT. 

The  sheriff's  return  of  levy  of  an  attachment 
upon  machinery  need  not  state  it  as  bis  opinion 
that  the  machinery  could  not  be  removed,  since 
that  ftict  is  susceptible  of  other  proof. 

[Ed.  Note.— For  other  cases,  see  Attachment, 
Cent  Dig.  SS  1153-1159.] 

8.  Attachment  ^=171— Levy— Pobtinq  No- 
tices—Requisites. 
Failure  to  post  notices  on  the  outer  door  of 
a  shed  which  was  not  completely  inclosed  did 
not  invalidate  the  levy  of  an  attachment  on  ma- 
chinery in  the  shed  if  the  notices  were  conspicu- 
ously posted  upon  the  shed. 

[Ed.  Note.— For  other  cases,  see  Attachment 
Cent  Dig.  SS  49:^-604.] 

4.  Attachment  <3=>152,  171  —  L«tt  —  Sufit- 
cienct. 
A  description  In  the  attachment  and  notice 
of  levy  of  property  as  "compressed  air  ma- 
chinery" and  "three  hoisting  engines"  is  suffi- 
cient 

[Ed.  Note. — For  other  cases,  see  Attachment 
Cent.  Dig.  S§  425-427,  492-504.] 

6.   BANKKXrpTOY    ©=5200(3)— ATTACHMENT— Bf- 

fect  of  Bankruptcy. 
Attachment  liens,  acquired  more  than  four 
months   before   proceedings  in   bankruptcy  are 
begun  by  filing  a  petition,  are  not  dissolved  b|y 
an  adjudication  in  baiikniptcy. 

[Ed.  Note.— Foi-  other  cases,  see  Bankruptcy, 
Cent  Dig.  SS  29(J-300.] 

Appeal  from  Superior  Court,  Tolland  Coun- 
ty; Joel  H.  Reed,  Judge. 

Action  by  the  Coast  &  Lakes  Contracting 
Corporation  against  Manuel  J.  Martin  and 
others.  Judgment  for  defendants,  and  plain- 
tin  appeals.    No  error. 

Frank  L.  McGulre,  of  New  London,  for 
appellant  Charles  B.  Whittlesey  and  Perry 
J.  Hollandersky,  both  of  New  London,  for 
appellees. 

SBUMWAY,  J.  This  action  was  brought 
by  the  plaintifF,  claiming  an  injunction 
against  the  defendant,  who  is  a  deputy  sher- 
iff of  New  London  county,  to  restrain  him 
from  taking  and  selling  on  execution  certain 
property  held  under  attachment.  The  exe- 
cution was  issued  to  enforce  a  Judgment  ren- 
dered In  an  action  brought  by  Joseph  Novy 
against  the  Breakwater  Company.  Novy's 
action  was  begun  and  the  attachment  made 
on  August  15,  1913.  At  that  time  the  Break- 
water (Company  w^as  engaged  In  the  business 


of  quarrying  .stone  In  ttie  town  of  Ledyard. 
The  stone  after  It  was  taken  from  the  quar- 
ry was  carried  away  and  used  In  the  con- 
struction of  breakwaters  and  sea  walls.  The 
quarry  occupied  10  to  12  acres  covered  by 
the  operations  of  the  company.  The  land 
WHS  owned  by  a  corporation  called  the 
Rivers  &  Harbors  Improvement  Company. 
Among  the  articles  of  property  owned  by  the 
Breakwater  Company  were  three  hoisting  en- 
gines and  compressed  air  machinery,  used  by 
the  company  in  the  quarry.  On  the  27tb  of 
December,  1913,  a  petition  in  bankruptcy  was 
filed  against  the  Breakwater  Company,  and 
it  was  adjudicated  a  bankrupt  on  February 
2,  1914.  The  judgment  in  favor  of  Novy 
against  the  Breakwater  (^mpany  was  r«i- 
dered  on  April  2,  1914.  On  March  23,  1914, 
the  trustee  In  bankruptcy  of  the  bankrupt 
sold  the  property  under  attachment  to  one 
Slegel,  and  he  on  April  4,  1914,  transferred 
the  same  to  the  plaintiff  In  this  action.  The 
process  In  the  action  of  Novy  against  the 
Breakwater  Company  was  served  and  the  at- 
tachment was  made  by  J.  H.  Tubbs,  deputy 
sheriff  of  New  London  county.  He  attached, 
as  the  property  of  the  Breakwater  (Company, 
three  hoisting  engines  and  the  compressed, 
air  machinery.  At  the  time  of  the  attach- 
ment the  hoisting  engines  were  in  different 
parts  of  the  quarry,  and  were  separately  and 
partially  Inclosed  by  rough  structures,  eacb 
having  a  roof,  but  open  on  one  or  more  sides. 
The  compressed  air  machinery  was  located 
In  a  long  building,  which  was  divided  into 
separate  rooms  by  partitions  and  had  dooiB 
In  front  and  rear.  In  the  same  room  were 
two  pumpa  The  compressed  air  machinery 
consisted  of  two  compressors,  a  steam  cylln- 
der  and  an  air  cylinder.  Each  compressor 
was  mounted  on  a  bed,  on  one  end  of  which 
was  a  steam  engine  and  on  the  other  end 
was  the  cylindfer  in  which  the  air  was  com- 
pressed. On  each  of  the  compressors  was  a 
plate  giving  the  name  of  the  manufacturer. 
Its  number,  and  size.  From  the  judgment  in 
favor  of  Novy  the  Breakwater  Company  ap- 
pealed to  the  Supreme  Court  of  Errors,  and 
the  judgment  of  the  superior  court  was  af- 
firmed cm  December  22,  1914,  and  an  exe- 
cution delivered  to  Deputy  Sheriff  Martin, 
the  defendant  herein,  on  February  20,  1915, 
and  on  the  same  day  he  made  levy  of  the 
same  and  posted  notices  of  the  sale. 

The  plaintifTs  complaint  was  doubtlessUv 
framed  having  in  mind  sections  831  and  911 
of  the  Qeneral  Statutes,  and  with  a  purpose 
to  allege  sufficient  facts  to  show  that  as  the 
property  attempted  to  be  attached  had  not 
been  removed  by  the  officer,  the  provisions 
of  these  statutes  in  such  cases  had  not  been 
complied  with.  One  of  the  important  ques- 
tions In  the  case  is  whether  or  not  the  acts 
of  the  officer  aa  detailed  In  the  finding  se- 
cured to  the  plaintiff  named  In  the  process 
a  lien  on  the  property  attached  so  that  the 


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OOAST  *  LAKES  CONTRAOTINO  CORP.  v.  MARTUT 


603 


same  conid  be  held  to  satisfy  an  e-xecutlon 
Issued  on  final  judgment  The  statute  (sec- 
tion 831)  provides  that  In  certain  cases  an 
officer  making  an  attachment  Is  not  required 
to  move  the  property  attached.  The  portion 
of  the  statute  material  for  the  purposes  of 
this  case  Is  as  follows: 

"Attachments  of  machinery,  engines,  or  imple- 
ments, situated  and  used  in  any  manufacturing 
or  mechanical  establishment,  •  •  •  wbicE 
cannot,  in  the  opinion  of  the  officer  levying  up- 
on the  same,  be  moved  without  manifest  in- 
jury, shall  be  effectual  to  hold  the  same,  with- 
out any  removal  thereof:  Provided  the  service 
«f  such  attachment  shall  he  completed  and  a 
copy  of  the  process  and  of  the  accompanyiog 
complaint,  with  the  officer's  return  indorsed 
thereon,  particularly  describing  the  property  at- 
tached, shall  be  filed  in  the  office  of  the  town 
clerk  of  the  town  in  which  such  property  shall 
be  situated,  within  twenty-four  hours  after  such 
attachment  shall  have  been  made." 

Section  911,  relating  to  levy  of  an  execu- 
tion on  machinery,  engines,  or  other  Imple- 
ments, provides  that  If  It  cannot,  in  the  opin- 
ion of  the  officer  levying  the  same,  be  moved 
without  manifest  injury,  be  shall  not  move 
it,  but  shall  give  notice  of  such  levy  by  post- 
ing a  notice  thereof  on  the  outer  door  of 
building  In  which  such  property  is  situated. 

[1]  One  of  the  claims  of  the  appellant  la 
that  the  attachment  was  void  because  the 
Breakwater  Company's  business  of  working 
a  quarry  was  not  a  manufacturing  or  me- 
chanical establishment.  This  statute  Is  pe- 
culiar to  this  state,  and  decisions  In  other 
Jurisdictions  ^ve  but  little  aid  in  construing 
Its  meaning.  The  purpose  of  the  statute  was 
to  provide  the  method  by  which  machinery, 
engines,  and  implements  could  be  attached 
without  moving  them,  and  thereby  held  to  se- 
cure a  judgment.  The  word  "manufactur- 
ing" has  no  restricted  meaning  as  used  in 
the  statute.  It  is  aK>arent  that  such  was 
not  the  intent  when  the  word  "mechanical" 
was  Inserted.  The  primary  meaning  of  the 
word  "mechanical"  is  "pertaining  to  machin- 
ery," and  the  fair  meaning  of  the  statute 
Is  that  it  was  Intended  to  Include  all  estab- 
lishments outfitted  with  machines  used  In 
conducting  such  operations  as  the  business 
required.  The  machines  attached  were  in  use 
in  a  mechanical  establishment 

[2]  Another  contention  of  the  plaintiff  is 
tliat  the  attachment  made  by  Sheriff  Tubbs 
Is  void  t>ecause  he  did  not  state  in  his  orig- 
inal return  that  in  his  opinion  the  property 
«ould  not  be  removed  without  manifest  in- 
Jury.  The  statute  leaves  it  to  the  judgment 
of  the  officer  making  an  attachment  to  de- 
termine whether  or  not  the  machine  could 
be  moved  without  injury  and  the  return 
wtalch  an  officer  makes  on  the  original  writ 
of  his  doings  is  only  prima  facie  evidence  of 
the  facts  stated  therein,  and  they  may  be 
disproved  by  proper  evidence.  The  only 
thing  omitted  as  claimed  is  a  statement  of 
tlie  <^cer'B  opinion  that  the  property  could 
not  be  moved  without  manifest  injury.  That 
be  entertained  this  or  that  opinion  may  be 
as  readily  determined  in  many  cases  by  what 


he  does  as  by  what  he  says.  But  the  court 
has  found  as  a  fact  that  the  property  could 
not  be  moved  without  injury,  and  it  is  admit- 
ted that  the  officer  was  In  f^ct  rightfully 
of  the  same  opinion  at  the  time  of  the  at- 
tachment. It  may  be  that  the  offic^  ran 
a  risk  that  the  attachment  would  not  hold  if 
he  came  to  a  wrong  conclusion,  but  it  would 
be  manifestly  unfair  to  an  officer  to  so  rule  If 
he  acted  in  good  faith.  In  the  case  Morey 
v.  Hoyt,  62  Conn.  556,  26  AU.  127,  19  I*  R. 
A  611,  it  was  held  that  under  the  circum- 
stances in  that  case  it  was  not  necessary  to 
the  validity  of  the  attachment  of  machinery 
that  the  property  be  moved  or  a  reason  giv- 
en in  the  return  why  it  was  not.  The  at- 
tachment did  not  fail  in  this  case  because 
Deputy  Sheriff  Tubbs  did  not  state  in  the 
return  that  in  tils  opinion  the  machines  could 
not  be  removed  without  manifest  injury,  but 
it  is  not  necessary  to  rule  that  it  would  be 
so  in  every  case. 

[3]  The  plaintiff  contends  that  the  levy  of 
the  execution  by  Deputy  Sheriff  Martin  was 
void  because  he  did  not  post  notices  of  the 
levy  on  the  outer  door  of  the  buildings  in 
which  the  hoisting  machines  were  sltuoted. 
The  structures  had  no  doors  which  could  be 
moved  to  permit  entrance.  The  notices  were 
posted  in  a  conspicuous  place  upon  the  struc- 
tures, which  was  a  sufficient  compliance  wltN 
the  statute. 

[4]  The  plaintiff  complains  because  th^ 
property  attached  and  levied  ujKjn  was  not 
"particularly  described"  in  the  attachment 
and  the  notice  of  levy.  The  description  as 
made  was  "compressed  air  machinery"  and 
"three  hoisting  engines."  The  purpose  of  re- 
quiring such  description  was  to  notify  all 
persons  who  were  or  might  become  interested 
in  the  property  that  the  property  was  under 
attachment  and  levy.  No  claim  is  made  that 
the  plaintiff  was  a  purchaser  without  no- 
tice. The  pr(^erty  was  sold  to  the  plaintiff 
"subject  to  existing  liens."  If  the  plaintiff 
investigated  and  made  Inquiry  at  the  prop- 
er place,  the  town  clerk's  Office  In  Ledyard, 
he  would  have  found  that  what  purported 
to  be  an  attachment  lien  rested  upon  the 
compressed  air  machinery  and  hoisting  en- 
gines in  the  quarry  in  Ledyard,  the  property 
of  the  Breakwater  Company,  and  possibly 
may  have  found  in  the  quarry  the  notices 
posted  by  Deputy  Sheriff  Tubbs,  indicating 
the  particular  property  attached.  The  de- 
scription was  sufficient 

[t]  Another  claim  by  the  plaintiff  is  that 
Novy  lost  his  lien.  If  he  had  one  at  any 
time,  by  the  adjudication  in  bankruptcy  of 
the  Breakwater  Company.  Attachment  liens 
acquired  more  titan  four  months  t>efore  pro- 
ceedings In  bankruptcy  are  begun,  by  filing 
a  petition,  are  not  dissolved  by  an  adjudica- 
tion in  bankruptcy.  Metcnlf  v.  Barker,  187 
U.  S.  165,  23  Sup.  Ct  67,  47  L.  Ed.  122.  The 
attachment  was  made  on  August  IS,  1918. 
The  petition  in  bankruptcy  was  filed  Decem- 
ber 27,  1013.    But  the  plaintiff  contends  that 


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504 


101  ATLANTIC  REPORTER 


(CJonn. 


under  the  antbority  of  Walteman  v.  Throck- 
morton, 74  Conn.  621,  51  AU.  554,  the  Judg- 
ment In  favor  of  Novy  should  have  been  re- 
stricted "to  be  satisfied  only  out  of  the  In- 
terest which  the  defendant  had  in  the  prop- 
erty attached."  If  such  restriction  had  been 
claimed  or  a  suggestion  made  to  the  court 
that  the  defendant  was  a  bankrupt,  the  Judg- 
ment, no  doubt,  would  have  been  so  restrict- 
ed, but  the  Judgment  Is  not  void.  Kovy  must, 
tf  he  collects  his  Judgment  at  all,  collect  It 
out  of  the  property  attached. 

There  Is  no  error.    The  other  Judges  con- 
curred. 


m  Conn.  3») 

GAI/LON  T.  BURNS  et  aL 

(Supreme  Court  of  Errors  of  Connecticut. 
July  6,  1917.) 

1.  Fraud  «s»9—AcnoNB— Grounds. 

Where  fraud  and  deceit  is  the  ground  of 
action,  it  must  be  proved  that  the  representation 
was  made  as  a  statement  of  fact  that  it  was 
untrue  and  known  to  be  untrue  by  the  party 
making  it,  that  it  waa  made  for  the  purpose  of 
inducing  the  other  party  to  act  upon  it,  and  that 
the  party  to  whom  the  representation  was  made 
was  in  fact  induced  thereby  to  act  to  his  injury. 
rE!d.  Note.— For  other  cases,  see  Fraud,  Cent. 
Dig.  8  8.] 

2.  Fraud  «=»22(1)— Acnoiss— Diuokncb. 

Where  stockholders  of  a  corporation  in  sell- 
ing stock  to  plaintiS  fraudulently  represented 
that  the  company  waa  solvent,  he  was  not  bound 
to  investigate  to  prevent  bis  being  defrauded, 
nor  for  failure  to  mvestigate  could  his  recovery 
for  the  fraud  be  denied. 


[Bd.  Note.— -For  other 
Dig.  §S  19.  20,  22,  23.] 


1,  see  Fraud,  Cent 


Appeal  from  Superior  Court,  New  Haven 
County;   Gardiner  Greene,  Judga 

Action  by  Jos^b  H.  Gallon  against  Ed- 
ward J.  Bums  and  others.  Judgment  for 
plaintiff,  and  defendants  appeaL    No  error. 

Hugh  J.  Murphy  and  Charles  T.  McClnre, 
both  of  New  Haven,  for  appellants.  Robert 
J.  Woodruff  and  James  J.  Palmer,  both  of 
New  Haven,  for  ai^ellee. 

SHUMWAY,  J.  nie  complaint  alleges  that 
the  defendants  made  certain  false  and  fraud- 
ulent representations  to  the  plaintiff  whereby 
he  was  induced  to  purchase  shares  of  the 
capital  stock  of  a  corporation  called  the 
Bums  Thomas  Company,  orgnnlzed  to  carry 
«n  the  business  of  selling  and  repairing  auto- 
mobiles, ^e  defendants  in  ttieir  answer 
deny  the  making  of  representations  alleged 
in  the  complaint.  On  the  trial  to  the  Jury 
tlie  Issues  were  found  for  the  plaintiff  and 
from  a  Judgment  in  his  favor  the  defendants 
appeal,  assigning  as  error  the  court's  fail- 
ure to  give  proper  instructions  to  the  Jury. 
The  defendant  Bums  was  secretary  and  a 
stockholder  and  the  defendant  Thomas  was 
a  director  and  stockholder  of  the  Bums 
Thomas  Company.    The  court  in  the  charge 


used  language  that  may  be  constraod  as  a 
statement  that  Bums  was  a  director  and 
secretary.  He  was  not  a  director.  The  de- 
fendants complain  that  the  court's  remark 
misled  the  Jury  to  their  hartn.  The  remark 
was  made  in  connection  with  the  instructions 
given  .relative  to  the  duty  of  the  plaintiff 
to  make  an  investigation  for  himself  in  order 
to  ascertain  the  truth  or  falsity  of  the  de- 
fendants, representations  aa  to  the  condition 
of  the  company.    The  court  said: 

"if  with  such  superior  means  of  informadoo 
the  defendants  made  false  statements  to  the 
plaintiff  with  intent  to  deceive  him,  and  the 
plaintiff,  relying  on  their  better  means  of  in- 
formation, went  on  depending  on  their  state- 
ments, they  cannot  escape  liability  because  it 
was  possible  for  the  plaintiff  to  have  obtained 
information  that  would  have  saved  him  from 
losing  his  money." 

It  is  clear  that  the  court's  reference  to 
Bums  as  a  director  of  the  company  was  an 
inadvertence  and  did  the  defendants  no  harm. 
There  was  nothing  to  indicate  that  the  court 
intended  to  intinoate  that  a  director  of  the 
company  would  have  any  better  information 
ns  to  the  financial  condition  than  the  secre- 
tary. The  defendants  also  complain  of  the 
above-quoted  passage  because,  as  they  say, 
the  court  removed  a  question  of  fact  from 
the  Jury;  as  it  was  for  the  Jury  to  deter- 
mine whether  the  plaintiff  should  have  made 
an  Independent  investigation  as  to  the  condi- 
tion of  the  company  instead  of  relying  on 
the  defendant's  representations. 

[1]  This  claim  of  the  defendants  embraces 
essentially  all  the  errors  set  out  in  the  ten 
reasons  of  appeal,  and  it  is  unnecessary  to 
consider  them  separately.  Where  fraud  and 
deceit  is  the  ground  of  action : 

"It  must  be  proved  that  the  representation 
was  made  as  a  statement  of  fact  that  it  was 
untme  and  known  to  be  untrue  by  the  party 
making  it ;  that  it  was  made  for  the  purpose  of 
inducing  the  other  party  to  act  upon  it;  that 
the  party  to  whom  the  representation  was  made 
was  in  fact  induced  thereby  to  act  to  his  in- 
jury." Barnes  v.  Starr,  64  Conn.  150,  28  Atl. 
980. 

The  trial  court  in  Its  diarge  followed  this 
statement  of  the  law,  but  the  defendant 
claims  that  the  court  erred  because  It  omitted 
to  charge  the  Jury  that.  If  they  fonnd  the 
plaintiff  was  able  to  make  an  independent  In- 
vestigation of  his  own  concerning  the  finan- 
cial condition  of  the  Bunw  Thomas  Com- 
pany, then  he  could  not  recover  In  this  action 
under  the  pleadings. 

[2]  The  defendants  state  the  point  in  their 
brief  in  this  manner: 

"The  plaintiff  was  bound  to  use  reasonable 
diligence  to  ascertain  the  condition  of  the  com- 
pany." 

Notwithstanding  the  Claim  of  the  plaintiff 
that  he  had  been  induced  to  purchase  worth- 
less stock  of  the  Bnms  Thomas  Company 
through  false  representations  of  the  defMid- 
ants,    the    defendants    insisted    that,    as    It 


4=»Far  otbar  gmu  n*  >am«  topio  and  KBT-NUMBER  la  all  K<7-Numb«r«d  OigMts  sod  ladMM 


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Conn.) 


FT.  ORANGE  BAB  BERING  CO.  r.  NEW  HAVEN  HOTEL  00. 


505 


appeared  In  evidence  that  the  plalntiiff 
had  an  opportunity  to  examine  the  books 
ot  the  company  and  fiilled  to  do  to, 
be  could  not  recover  In  this  action.  The 
early  case  of  Sherwood  t.  Salmon,  5 
Day,  439,  5  Am,  Dec.  167,  does  not  appear 
to  have  been  questioned  In  this  state.  In 
that  case.  In  an  opinion  by  Judge  Swift, 
the  conrt  says: 

"I  apprehend  no  authority  can  be  found  to 
warrant  the  doctrine  that  a  man  mast  use  due 
diligence  to  prevent  being  defrauded ;  otherwise 
he  shall  be  entitled  to  no  remedy.  The  truth 
is,  redress  is  most  commonly  wanted  for  inju- 
ries arising  from  frauds,  which  might  have  been 
prevented  by  due  diligence.  •  •  *  In  such 
impositionB  and  deceits,  when  common  prudence 
may  guard  persons  against  the  suffering  from 
them  the  offense  is  not  indictable,  but  the  party 
is  left  to  his  civil  remedy  for  redress  of  the 
injury  that  has  been  done  him." 

It  is  possible  that  statement  of  the  law 
might  not  be  regarded  as  correct  in  other 
Jurisdictions,  and  it  has  sometimes  been  said 
that,  where  a  party  deceived  can  protect 
himself  by  ordinary  care,  it  is  his  duty  to 
do  80,  but  It  is  with  this  qualification  that 
he  must  have  equal  means  of  knowledge  and 
be  equally  able  to  Judge  of  the  matter  for 
himself  and  to  stand  upon  an  equal  fbotlng 
with  the  one  using  deceit  or  making  the  rep- 
resentations;  then  If  he  acts  without  exer- 
cising the  means  of  knowledge  open  to  him  he 
does  so  at  his  own  perU.    It  matters  not  ia 
this  case  which   rule  la  applied;    for  the 
plaintiff  and  defendants  were  not  on  the 
same  footing  with  respect  to  information  as 
to  the  extent  and  character  of  the  business 
of  the  Bums  Thomas  Ck>mpany,  and  It  would 
have  been  erroneons  for  the  court  so  to  have 
charged  the  Jury.    Both  Burns  and  Thomas 
were   stockholders,   one   the   secretary,   the 
other  a  director  having  full  knowledge  ot 
the  extent  of  the  business  and  of  the  otmdl- 
tlon  of  the  company,  while  the  plaintiff  had 
no  Information  whatever.    The  court  did  not 
err  in  omitting  to  Instruct  the  Jury  that  the 
plalntlfl  could  not  recover  In  this  action  If 
he  had  an  opportunity  to  examine  the  books 
of  the  company  and  he  failed  to  do  so.    The 
Jury  were  properly  Instructed  that.  If  they 
found  that  the  plaintiff  relied  on  the  false 
representation   of   the   defendants   that  the 
business  was  in  a  sound  and  healthy  condi- 
tion and  the  other  false  statements  the  plain- 
tiff claimed  to  have  proved,  and  was  there- 
by Induced  to  buy  the  stock,  he  was  entitled 
to  a  verdict.    If  a  person  buys  property  hav- 
ing a  defect  known  or  visible  to  the  buyer, 
It  would  be  absurd  to  hold  or  find  as  a  fact 
that  he  relied  upon  a  statement  In  making 
the  purchase  that  was  contrary  to  what  was 
known  to  him   to  be  true.     There  was  no 
obligation  on  the  part  of  the  plaintiff  to 
examine  the  books  of  the  company  to  find 
out  that  the  defendants  were  lying,  certainly 
not  if,  as  claimed,  he  was  told  by  the  defend- 
ants the  books  would  corroborate  their  state- 


ments as  to  the  prosperous  condition  of  the 
company 
There 
curred. 


company. 
There  is  no  error.    The  other  Judges  con- 


(»  Conn.  Hi) 
BTT.  ORANGE  BARBERINO  CO.  v.  NEW 
HAVEN  HOTEL  CO. 

(Supreme  Court  of  Errors  of  Connecticut. 
Aug.  2,  1917.) 

1.  Justices  of  thb  Peacb  ®=3l28(l)  —  Reo- 

OBDS — COLLATERAI.   ATTACK. 

A  court  held  by  a  justice  of  the  peace  is  a 
court  of  record,  and  his  records  in  proceedings 
within  bis  jurisdiction  import  verity,  and  can- 
not be  collaterally  questioned. 

[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Cent  Dig.  {  40a] 

2.  Landlobd  and  Tenant  «=>298(1)— Fobfei- 

TUBE  fob  FaILUBE  TO  PAT  ReNT— DEFENSES. 

A  waiver  of  the  forfeiture  for  breach  of 
covenant  to  pay  rent  was  a  good  defense  in 
summary  process  by  the  landlord  to  obtain  pos- 
session of  the  premises. 

[Ed.  Note. — ^For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  fi  1276-1279.] 

3.  Justices  of  the  Peace  €=>129(1)— Judg- 
ment—Res  Judicata. 

The  judgment  of  the  Justice  court,  in  sum- 
mary process,  adjudging  a  forfeiture  by  the  ten- 
ant, is  conclusive  evidence  that  there  was  no 
waiver  by  the  landlord  of  the  covenant  to  pay 
rent  at  that  time,  and  equity  will  not  consider 
the  question,  in  an  action  to  restrain  further 
proccedinga  m  summary  process. 

[Ed.  Note. — For  other  cases,  see  Justices  ot 
the  Peace,  Cent.  Dig.  §  408.] 

4.  Appkai.  and  Ebbob  «e»5— Modk  or  R>- 

VIEW. 

Erroneons  proceedings,  in  an  action  of  sum- 
mary process  before  a  justice  of  the  peace,  can 
only  be  reviewed  by  the  Supreme  Court  of  Er- 
rors upon  a  writ  of  error. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  J{  8-21.] 

5.  Injunction  9=>2o  —  Intxbfebence  with 
JuDouENTs  AT  Law. 

While  under  certain  drcumstances  restrain- 
ing proceedings  upon  a  judgment  Is  a  matter  ot 
tight,  courts  of  equity  omy  interfere  with  a 
judgment  at  law  where  some  well-defined  inde- 
pendent equitable  ground  exists  for  restraln- 
mg  enforcement  of  the  judgment 

[Ed.  Note. — Fat  other  cases,  see  Injunction, 
Cent  Dig.  §  24.] 
9.  Landlobd  and  Tenant  «s»112(1)  —  Fob- 

ffBITUBB— WAIVKB. 

Where  the  leniency  of  the  landlord  has  not 
put  the  tenant  in  any  worse  position  than  if 
the  lease  had  been  strictly  enforced,  the  rule 
that  one  who  does  not  declare  a  forfeiture  whea 
he  is  entitled  thereto  waives  the  right  is  in- 
applicable; it  resting  upon  the  grounds  of  equi- 
table estoppel. 

[Ed.  Note. — For  other  cases,  see  Landlord 
and  Tenant  Cent  Dig.  Si  843,  344,  346,  347, 
349.] 

7.  Landlobd  and  Tenant  «=»  108(1)— Ousteb 
—Demand  fob  Rent  ob  Rb-bntbt— Neces- 
sity. 
Provision  in  lease  for  forfeiture  for  failure 
to  pay  rent  and  that  no  demand  for  rent  or 
re-entry   should    be  necessary   for  recovery   of 
possession  by  summary  process,  is  enforceable. 
[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant  Cent  Dig.  §§  333,  334,  339.] 


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101  ATLANTIG  REPORTBR 


(Conn. 


Appeal  from  Superior  Court,  New  Haven 
County;   James  H.  Webb,  Judge. 

Action  by  the  Ft  Orange  Barberlng  Com- 
pany against  the  New  Haven  Hotel  Company. 
Judgment  for  defoidaot,  and  plaintiff  ap- 
peals.    No  error. 

The  finding  shows  that  on  the  17th  day  of 
October,  1911,  the  defendant  leased  to  the 
plaintiff  in  writing  certain  space  In  the  Ho- 
tel Taft,  in  New  Haven,  to  be  used  as  a  bar- 
berlng establishment,  tor  a  period  of  five 
years  from  the  1st  day  of  September,  1912, 
at  an  annual  rental  of  $2,700,  and  with  an 
option  for  a  renewal  thereof  for  a  further 
period  of  five  years  at  the  same  rental,  the 
rentals  being  payable  monthly  In  advance. 
This  lease,  among  other  stipulations,  provid- 
ed that  there  was  to  be  a  forfeiture  in  the 
event  of  nonpayment  of  rent.  The  forfeiture 
danse  was  in  the  following  language: 

"Provided,  however,  and  it  is  further  agreed 
that,  if  the  rent  shall  become  due  and  payable 
as  aforesaid,  or  if  the  said  Ft.  Orange  Barber- 
lng Company  shall  •  •  *  not  perform  and 
fulfill  each  and  every  of  the  covenants  and  stipu- 
lations herein  contained  to  be  performed  by 
said  Ft.  Orange  Barberlng  Company,  then  this 
lease  shall  thereupon,  by  virtue  of  this  express 
stipulation  therein,  at  the  option  of  said  man- 
agers, expire  and  terminate,  and  said  managers 
may  at  any  time  thereafter  re-enter  said  prem- 
ises and  the  samo  have  and  possess  as  of  their 
former  estate,  and  without  such  re-entry  may  re- 
cover possession  thereof  in  the  manner  prescrib- 
ed by  the  statute  relating  to  summary  process; 
It  being  understood  that  no  demand  for  rent  and 
no  re-entry  for  condition  broken  as  at  common 
law  shall  be  necessary  to  enable  the  lessor  to 
recover  such  possession  pursuant  to  said  statute 
relating  to  summary  process,  but  that  all  right 
to  any  such  demand  or  any  such  re-entry  is 
hereby  expressly  waived  by  the  said  Ft.  Orange 
Barberlng  Company." 

On  or  before  April  1,  1912,  the  plaintiff 
entered  into  the  leased  premises,  and  has 
ever  since  continued  to  occupy  the  same, 
claiming  the  right  to  do  so  under  the  lease. 
The  plaintiff,  except  In  two  Instances,  neg- 
lected to  pay  the  monthly  rental  on  the  1st 
day  of  each  month  In  advance.  In  a  ma- 
jority of  Instances  these  payments  of  rent 
were  made  after  the  middle  of  the  month,  and 
on  two  different  occasions  one  payment  was 
accepted  for  two  months'  rent  All  of  the 
payments  were  made  by  check,  mailed  by  the 
plaintiff  from  the  dty  of  New  Tork  to  the 
defendant  at  New  Haven.  These  checks 
were  accepted  by  the  defondant  as  and  for 
the  payment  of  rent  then  due  and  owing  by 
the  plaintiff.  On  September  14,  1916,  the 
plaintiff  was  two  monthly  payments  of  rental 
In  arrears,  and  on  this  day  the  defendant 
served  notice  upon  the  plaintiff  to  quit  pos- 
session of  the  premises.  It  was  admitted 
upon  the  trial  that  a  check  for  some  Install- 
ment of  rent  was  sent  by  the  plaintiff  to  the 
defendant  on  September  14,  1916,  which  the 
defendant  refused  to  accept  and  returned  to 
the  plaintiff.  No  evidence  was  offered  by 
the  plaintiff  as  to  the  amount  of  this  chedc, 
nor  as  to  what  Installment  of  rent  it  should 
be  applied,  nor  any  evidence  whatever  con- 


cerning It  No  evidence  was  offered  by  the 
plaintiff  to  show  whether  or  not,  prior  to 
September  14,  1916,  the  defendant  had  ever 
in  any  manner  notified  the  plaintiff  that  It 
.would  claim  a  forfeiture  of  the  lease  upon 
the  failure  of  the  plaintiff  to  pay  the  month- 
ly Installments  of  rent  at  the  time  they  be- 
came due  and  payable  under  the  terms  of 
the  lease.  On  September  23,  1916,  the  plain- 
tiff tendered  to  the  defendant  a  sum  of  mon- 
ey that  would  be  In  full  of  all  rent  to  October 
1,  1916,  which  the  defendant  refused  to  ac- 
cept On  September  30,  1910,  the  defendant 
brought  an  action  of  summary  process  against 
the  plaintiff,  returnable  before  James  EL 
Wheeler,  Esq.,  a  Justice  of  the  peace  for 
New  Haven  county,  on  the  6th  day  of  Oc- 
tober, 1916,  claiming  that  this  lease  had 
been  forfeited  by  the  nonpayment  of  rent 
The  parties  appeared  before  the  Justice  and 
were  duly  heard,  and  on  October  7,  1916, 
Judgment  was  rendered  in  favor  of  the  de- 
fendant (the  New  Haven  Hotel  Company) 
that  the  company  recover  possessicm  of  the 
premises.  Thereupon  this  plaintiff  (the  Ft 
Orange  Barberlng  Company)  sued  out  a  writ 
of  error  to  the  court  of  common  pleas  for 
New  Haven  county,  which  writ  was  subse- 
quently withdrawn  by  the  plaintiff.  Darin? 
the  year  1912  the  plaintiff  carried  on  the 
business  of  a  barberlng  establishment  at  a 
loss  of  $434.15,  but  thereafter  carried  on  this 
business  at  an  annual  profit  Upon  the  open- 
Ing  of  this  business,  supplies  were  purchased 
to  the  amount  of  $1,703.50.  These  supplies, 
consisting  of  hat  racks,  cuspidors,  bottles, 
shaving  mugs,  massage  machines,  vases,  etc.. 
are  still  for  the  most  part  on  hand,  and  to- 
gether with  towels  and  linen,  of  the  value  of 
$150,  are  of  value  to  the  plaintiff.  The  plain- 
tiff offered  no  evidence  to  prove  that  It  ever 
made  any  other  tender  to  the  defendant  of 
the  monthly  rentals  past  due,  except  the  of- 
fer of  payment  made  on  September  23,  1916. 
herein  mentioned.  The  plaintiff  at  the  trial 
declared  its  willingness  to  pay  to  the  defend- 
ant all  Installments  of  rent  in  arrears,  with 
interest  thereon,  but  made  no  tender  there- 
of, nor  offered  evidence  of  any  offer  or  ten- 
der other  than  that  Just  mentioned.  None  of 
the  irremovable  fixtures  In  said  barberlng; 
establishment,  such  as  barber  chairs,  mir- 
rors, washstands,  etc.,  were  installed  by  or 
belong  to  the  plaintiff.  They  were  installed 
by  and  are  the  property  of  the  owner  of  the 
Hotel  Taft.  Since  the  year  1912,  the  plain- 
tiff has  carried  on  its  business  on  the  premis- 
es In  question  at  an  annual  profit,  and  it  Is 
reasonable  to  expect  that  this  business  would 
continue  to  be  profitable  to  the  plaintiff, 
should  It  decide  to  avail  Itself  of  the  option  to 
extend  said  lease  for  a  further  period  of  five 
years  from  August  31, 1917,  and  be  permitted 
to  remain  in  possession  of  the  same. 

The  plaintiff  In  its  complaint  alleged  that, 
"by  reason  of  the  defendant's  acquiescence  In 
the  delayed  payments  for  a  period  of  mora 


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FT.  ORANGE  BABBERIN&  00.  v,  NEW  HAVEN  HOTEL  00. 


607 


than  foar  years,  the  defendant  Induced  the 
plaintiff  to  bellere,  and  the  plaintiff  did  be- 
lieve, that  a  strict  performance  of  the  cove- 
nants In  the  lease  in  reference  to  the  time  of 
payment  of  the  rent  on  the  1st  of  each  month 
would  not  be  required";  that  "the  plaintiff 
is  ready  and  willing  to  pay  the  defendant  all 
the  rents  that  may  be  due  or  become  due, 
with  sudi  Interest  as  may  be  due  thereon"; 
that  'iJie  defendant  has  suffered  no  loss  or 
incDnvenience  by  reason  of  the  delayed  pay- 
ments"; and  that  the  Issuance  of  an  execu- 
tion of  summary  process  would  work  Irrepa- 
rable loss  to  the  plaintiff.  Those  allegations 
were  denied  by  the  defendant  in  Its  answer. 
The  Judgment  file  finds  the  Issnea  for  the  de- 
fendant Hotel  Company. 

Samuel  Campner,  of  New  Haven,  and  Lewla 
M.  Schener,  of  New  York  City,  for  appellant 
Robert  C.  Stoddard  and  Jacob  P.  Goodhart, 
both  of  New  Haven,  for  appellee. 

RORABAGE,  J.  (after  stating  the  facts  as 
above).  This  case  turns  ni)on  the  sufficiency 
of  the  findings  to  sustain  the  conclusion  of 
the  trial  court  In  rendering  Judgment  for  the 
defendant.  The  plaintiff's  objections  to  the 
decision  of  the  superior  court,  which  are  urg- 
ed here,  are  summarized  as  follows: 

"First  Because  it  appears  that  the  plaintiff 
will  suffer  irreparable  injury,  damage,  and 
loss,  should  the  forfeiture  of  the  lease  be  en- 
forced. Second.  Because  it  is  a  fixed  rule  in 
equi^  to  give  a  tenant  equitable  relief  against 
forfeiture  for  breach  of  covenant  to  pay  rent 
irrespective  of  any  question  as  to  whether  such 
forfeiture  would  or  would  not  result  in  irrepar- 
able damage  to  the  tenant,  it  being  the  mere 
inequity  of  a  forfeiture  that  prompts  the  relief. 
Third.  Because,  in  view  of  the  previous  relations 
of  the  parties  and  their  mutual  conduct  it 
wonld  be  nnfair,  inequitable,  and  unjust  with- 
out previous  notice  of  intention,  to  enforce  strict 
performance." 

t1]  This  statement  of  claims  Involves  sev- 
eral questions.  One  is  as  to  the  effect  of  the 
judgment  of  the  Justice  of  the  peace  in  the 
summary  process  suit  The  recovery  by  the 
defendant  In  this  action  has  an  imiwrtant 
bearing  upon  the  present  case.  In  this  state 
the  action  of  summary  process  is  regulated 
by  statute,  and  the  Judgment  has  the  same  ef- 
fect as  a  common-law  Judgment  In  other  cas- 
es. A  court  held  by  a  Justice  of  the  peace  Is 
a  court  of  record.  His  record,  therefore,  in 
Jn'diclal  proceedings  which  have  taken  place 
before  him  and  are  within  his  Jurisdiction, 
imports  verity,  and  its  statements  cannot  be 
collaterally  questioned.  Every  act  recited  In 
EHich  a  record  Is  presumed  to  have  been  pn>i>- 
erly  and  rightfully  done  until  the  contrary 
appears.  American  Bonding  Co.  v.  Hoyt  88 
C!onn.  255,  00  Atl.  »32 ;  Church  v.  Peame  et 
al.,  75  Conn.  351,  53  Atl.  955.  The  Judgment 
in  the  justice  court  against  the  appellant  the 
Bartering  Company,  established  the  validity 
of  the  lease,  that  It  was  in  possession,  Its  ob- 
ligations to  pay  the  rent  then  in  question,  and 
tUat  these  installments  were  due  and  unsatis- 
fied. 


[2,3]  A  waiver  of  the  forfeiture  of  the 
breach  of  covenant  to  pay  rent  was  a  good  de- 
fense In  the  summary  process  proceeding  be- 
fore the  Justice  court.  The  Judgment  of  this 
court  against  the  appellant  for  the  forfeiture 
is  conclusive  evidence  that  there  was  no  waiv- 
er at  the  time  this  Judgment  was  ren'dered, 
and  equity  will  not  consider  this  question  in 
an  action  like  the  present  one  to  obtain  relief 
against  the  forfeiture.  Dunklee  v.  Adams,  20 
Vt  415,  50  Am.  Dec.  44. 

[4]  The  action  of  summary  process  is  a 
special  statutory  remedy  to  enable  landloi'ds 
to  obtain  possession  of  leased  premises  with- 
out suffering  the  delay  and  expense  to  which, 
under  the  common-law  actions,  they  might  be 
subjected  by  tenants  wrongfully  holding  over 
their  terms.  By  section  1078  of  the  General 
Statutes  the  action  of  summary  process  Is 
made  returnable  before  a  Justice  of  the  peace. 
Section  lOSl  provides  that  "no  appeal  shall 
be  allowed  from  any  Judgment  rendered  in 
any  such  action."  Under  section  817  of  the 
General  Statutes  a  writ  of  error  lies  from  the 
Ju'dgment  of  a  Justice  in  an  action  of  sum- 
mary process  to  the  court  of  common  pleas  or 
the  superior  court,  but  not  to  this  court  By 
section  1087  of  our  statutes  a  defendant  In  an 
action  of  summary  process  Is  allowed  but  48 
hours  after  final  Judgment  for  filing  his  bill 
of  exceptions  and  procuring  his  writ  of  error, 
and  is  required  to  give  a  sufficient  bond,  with 
surety,  to  the  plaintiff  to  answer  for  all  rents 
that  may  accrue  during  the  pendency  of  the 
writ  of  error.  Erroneous  proceedings  in  an 
action  of  summary  process  can  be  reviewed 
by  this  court  only  upon  a  writ  of  error.  This 
was  not  done  In  the  case  now  before  us. 
Banks  V.  Porter,  89  Conn.  30T.  The  Jurisdic- 
tion of  a  Justice  of  the  peace  la  limited  to 
claims  for  legal  relief.  General  Statutes,  | 
533. 

[S]  In  proper  cases  the  exercise  of  equi- 
table Jurisdiction  to  relieve  against  Judgments 
is  generally  held  to  be  within  the  discretion 
of  the  court,  which  is  to  be  guided  and  con- 
trolled in  its  exercise  by  legal  principles,  and 
to  be  exercised  in  conformity  with  the  spirit 
of  the  law  and  in  a  manner  to  subserve,  and 
not  defeat  the  ends  of  substantial  Justice, 
an'd  for  a  manifest  abuse  thereof  it  is  review- 
able by  a  proper  procedure.  While,  under 
certain  circumstances,  restraining  proceed- 
ings upon  a  Judgment  Is  a  matter,  not  of 
grace,  but  of  right,  courts  of  equity  do  not 
lightly  interfere  with  Judgments  of  law,  and 
do  so  only  with  occasions  where  some  well- 
defined.  Independent,  equitable  ground  exists 
for  restraining  the  enforcement  of  the  Judg- 
ment 15  Ruling  Case  Law,  730,  731,  and 
cases  cited  in  notes;  Danlell's  Chancery  Prac- 
tice (6th  Am.  Ed.)  — ;  3  Pomeroy's  Eq.  Juris. 
§  1365 ;  Clark  v.  Board  of  Education,  76  N.  J. 
Eq.  326,  74  Atl.  319, 320, 25  L.  R.  A.  (N.  S.)  827, 
139  Am.  St  Rep.  763.  Hood  v.  N,  Y.,  N.  H. 
&  H.  R.  R.  Co.,  23  Conn.  600,  621.  "A  court 
of  equity  does  not  Interfere  with  Judgments 


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508 


101  ATLANTIC  REPORTER 


(Conii, 


at  law,  QDless  the  complainant  has  an  equi- 
table defense,  of  whlcb  be  would  not  avail 
himself  at  law,  because  It  did  not  amount  to 
a  legal  defense,  or  had  a  good  defense  at  law, 
which  he  was  prevented  from  availing  himself 
of  by  frau'd  or  accident,  nnmixed  with  negli- 
gence of  himself  or  his  agents."  Truly  v. 
Wanzer  et  al.,  46  D.  S.  (5  How.)  141,  12  L. 
Ed.  8S. 

In  the  present  case  there  Is  no  allegation 
or  suggestion  of  any  fraud,  accident,  surprise, 
or  mistake  in  the  proceeding  before  the  Jus- 
tice court  The  application  of  the  rule  above 
dted,  under  the  facts  here  presented,  seems 
to  leave  the  plaintiff  but  few  facts  upon 
which  to  base  its  claim  for  equitable  relief, 
the  most  important  of  which  is  the  allegation 
and  claim  that  the  plaintiff  was  Induced  to 
believe  that  a  strict  payment  of  periodical 
rents  would  not  be  required.  This  contention 
has  not  been  sustained.  It  appears  that  the 
plaintiff  alleges  in  its  complaint  that: 

"By  reason  of  the  defendant's  acquiescence  in 
tho  delayed  payments  for  a  period  of  more  than 
four  years  the  defendant  indnced  the  plaintiff 
to  believe,  and  the  plaintiff  did  believe,  that  a 
strict  performance  of  the  covenants  in  the  lease 
in  reference  to  the  time  of  payment  of  the  rent 
on  the  Ist  of  each  month  would  not  be  required 
of  it" 

This,  as  we  have  seen,  was  deni^  by  the 
defendant  The  Judgment,  by  finding  the  is- 
sues upon  this  part  of  the  case  for  the  de- 
fendant, necessarily  finds  that  the  plaintiff 
has  failed  in  its  proof  upon  this  subject  A 
special  finding  upon  this  i>art  of  the  case, 
which  is  broader  than  the  general  finding  of 
the  issues  for  the  defendant  in  the  Judgment, 
Is  not  inconsistent  therewith.  There  is  noth- 
ing in  the  finding  whldi  suggests  a  basis  for 
the  claim  that: 

"In  view  of  the  previous  relations  of  the  par- 
ties and  their  mutual  conduct  it  would  be  un- 
fair, inequitable,  and  unjust  to  sanction  the 
right  of  the  landlord  to  cancel  the  lease  without 
previous  notice  of  intention  thereafter  to  en- 
force strict  performance." 

Upon  the  other  hand,  it  appears  that  the 
court  below  has  expressly  found  that: 

"No  evidence  was  offered  by  the  plaintiff  to 
show  whether  or  not  prior  to  September  14, 
1916,  the  defendant  had  ever  in  any  manner 
notified  the  plaintiff  that  it  would  claim  a  for- 
feiture of  said  lease  upon  the  failure  of  the 
plaintiff  to  pay  the  monthly  installments  of 
rent  at  the  time  they  became  due  and  payable 
under  the  terms  of  said  lease." 

[(]  It  does  not  appear  from  the  finding  that 
by  the  defendant's  leniency  the  plaintiff  has 
t>een  put  in  any  worse  position  than  it  would 
have  been,  had  the  strict  performance  of  the 
lease  been  enforced.  There  is  a  class  of 
cases  holding  that  one  having  the  right  to 
declare  a  forfeiture,  who  does  not  declare  it 
when  be  Is  entitled  to  do  so,  waives  the  right 


of  forfeiture;  but  this  rule  rests  upon  the 
ground  of  estoppel.  In  such  cases  the  lessee 
has  usually  incurred  large  expenditures,  or 
made  valuable  improvements,  believing  tliat 
the  landlord  failing  to  assert  the  right  of 
forfeiture  after  a  breach  of  the  conditions, 
it  would  not  be  asserted.  This  is  not  sudi  a 
case.  O'Connor  v.  Timmermann,  83  Neb.  422, 
123  N.  W.  443,  24  L.  R.  A.  (N.  S.)  1063,  1066, 
133  Am.  St  Rep.  668. 

[7]  The  plaintiff  relies  upon  Bowman  v. 
Foot,  29  Conn.  331,  as  an  authority  to  sus- 
tain its  contentl(»is.  The  facts  In  the  Bow- 
man Case  are  easily  distinguishable  from 
those  in  tills  case,  especially  as  to  the  express 
conditions  contained  In  the  lease  now  before 
us,  which  provides  that: 

"It  being  understood  that  no  demand  for  rent 
and  no  re-entry  for  condition  broken  as  at  com- 
mon law  shall  be  necessary  to  enable  the  lessor 
to  recover  such  possession  pursuant  to  said  stat- 
ute relating  to  summary  process,  but  that  all 
right  to  any  such  demand  or  any  such  re-entry 
is  hereby  expressly  waived  by  tne  said  Ft  Or- 
ang-o  Barbering  Company." 

The  lease  in  the  Bowman  Case  contains  no 
such  provision.  It  follows,  therefore,  that  no 
demand  for  rent  or  re-entry  was  necessary 
before  the  commencement  of  the  present  ac- 
tion. It  is  also  of  interest  to  note  that  In 
Bowman  v.  Foot  the  questions  presented  in 
this  action  were  by  means  of  a  writ  of  error. 

The  plaintiff  also  lays  stress  upon  the  caae 
of  Hartford  Wheel  Club  v.  Travelers'  Ins. 
Co.,  78  Conn.  365,  62  AO.  207.  In  that  case 
the  questions  presented  and  decided  were 
that: 

"The  acceptance  of  rent,  accruing  after  a 
breach  of  condition  for  which  the  lessor  has  de- 
clared his  election  to  terminate  the  lease,  from 
a  lessee  for  years,  who  refuses  to  recognize  the 
termination  of  the  lease  and  continues  in  pos- 
session as  before,  constitutes  a  waiver  of  the 
forfeiture,  which  is  binding  alike  up<Hi  the  les- 
sor and  the  lessee.  While  provisions  in  a  lease 
which  absolve  the  lessor  from  making  any  de- 
mand for  rent,  from  making  a  re-entry,  from  giv- 
ing the  statutory  notice  to  quit,  and  from  every 
other  formality,  may  enable  him  to  commence 
an  action  for  obtaining  possession  without  such 
demand  and  re-entry,  they  certainly  do  not  pre- 
vent the  parties  from  waiving  a  forfeiture  be- 
fore such  action  is  began." 

In  the  present  case  it  is  not  claimed  that 
the  Hotel  Company  accepted  any  rent  after 
a  breadi  of  the  conditions  for  whi<di  ft  de- 
clared its  intention  to  terminate  the  lease. 
It  is  also  of  Importance  to  notice  that  In  the 
case  of  the  Wheel  Club  against  the  Insurance 
Company  the  procedure  adopted  to  test  the 
question  of  waiver  was  also  by  a  writ  of  er- 
ror, as  we  hare  stated  should  have  been 
done  in  the  present  case.  Burritt  v.  Lunny, 
00  Conn.  491,  495,  406,  97  AU.  75a 

There  is  no  error.  The  other  Judges  con- 
curred. 


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Conn.) 


PliTTM  TREES  LIME  CO.  v.  KEELER 


509 


(92  Conn.  I) 

PLUM  TKE]ES  LIME  CO.  y.  KEBLEB. 

(Supreme  Court  of  Errors  of  Connecticut.    July 

6,  1917.) 

1.  Appeal  ajjd  E]bbob  «=>574(2)— PKaraciiON 
OF  Record— BviDBNCE. 

Under  Gen.  St.  1902,  {  797,  it  wm  irregu- 
lar to  move  to  make  the  evidence  on  rulings 
jtart  of  the  record  on  appeal  four  montlui  be- 
fore the  trial  court's  finding  was  filed ;  such  mo- 
tion being  proper  within  a  week  after  the  movant 
receives  notice  of  the  filing  of  such  finding. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |  2568.] 

2.  Insubance  «=»  116(1)— FiBK  Insubakok  — 

"iNBtmABLE   InTEKEST." 

Any  person  has  an  insurable  interest  in 
property  if  he  receives  a  benefit,  or  by  the  de- 
struction of  which  he  will  suffer  a  loss,  whether 
he  has  or  has  not  any  title  in,  or  lien  upon,  or 
possession  of,  the  property  itself. 

[Ed.  Note.— -For  other  cases,  see  Insurance, 
Cent  Dig.  %  139. 

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

3.  Insubance  €=»115(4)— Fibe  Insubance— 
Insubable  Inte'best. 

Where  a  quarry  tenant  erected  buildings  at 
a  cost  of  $2,500  and  had  a  lease  which  would 
run  for  eight  years  requiring  it  to  lieep  the 
buildings  and  machinery  in  good  repair,  it  had 
•n  insurable  interest  in  the  buildings. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  {  147.) 

4.  Insurance  «=»560(1)— Pboceeds  —  Biobts 
OF  Tenant. 

Where  the  lease  would  expire  in  eight 
years  and  the  tenant  had  built  new  buildings  to 
make  the  premises  tenantable  and  had  taken 
out  insurance  which  the  insurer  required  to  be 
in  the  landlord's  name,  and  on  loss  the  land- 
lord collected  the  insurance  after  having  refused 
to  insure  his  own  buildings,  the  value  of  plain- 
tiff's buildings  being  greater  than  the  amount 
of  insurance,  it  was  too  late  for  the  landlord 
to  claim  that  the  tenant  had  no  legal  or  equi- 
table right  to  recover  the  insurance  money. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent  Dig.  JS  1439,  1440,  1442,  1443.) 

6.  Tbustb  «=»1— "Implied  Trusts." 

A  trust  may  be  express  or  implied,  and  it 
la  "implied"  when  deducible  from  the  transac- 
tion as  a  matter  of  intent  (citing  Words  and 
Phrases,   First  Series,   Implied  Trust). 

i.  Note. — For  other  cases,  see  Trusts,  Cent 
B.  §1.1 
6.  Trusts  «=»6S%— Implied  Trusts. 

Where  the  landlord  collected  insurance  mon- 
ey on  policies  payable  to  him  by  insuring  loss 
of  buildings  constructed  by  the  tenant  whose 
lease  would  not  expire  for  eight  years,  an  im- 
plied trust  was  raised  in  favor  of  the  tenant 
*a  against  the  landlord  in  the  insurance  money. 
[Ed.  Note.— For  other  cases,  see  Trusts,  Oent 
THg.  H  91,  92,  98,  99,  100.] 

Appeal  from  Cotirt  of  Common  Pleas,  Fair- 
field County;   Howard  B.  Scott,  Judge. 

Action  by  the  Plum  Trees  Lime  Company 
against  Samuel  Keeler.  Judgmeiit  for  plaln- 
tttr,  and  defendant  appeals.    No  error. 

The  plaintiff  is  a  corporation  organized 
under  the  statute  of  laws  of  Connecticut. 
This  action  Is  brought  by  Wilbur  P.  Tomlin- 
SOD,  Charles  Kerr,  and  Alpbaus  A.  Hatha- 
way, its  directors,  acting  as  trustees  for  the 


purpose  of  closing  up  the  business  of  the 
corporation  pursuant  to  the  provisions  of 
sections  29  and  30  of  chapter  194  of  the  Pub- 
lic Acts  of  1903,  regulating  the  voluntary 
dissolution  of  corporations.  In  August,  1910, 
the  defendant  was  the  owner  of  the  premises 
described  in  the  plaintiff's  complaint,  as 
amended,  upon  which  was  a  ledge  or  deposit 
of  limestone,  with  lime  kilns  and  lime  shed. 
On  August  4,  1910,  the  defendant  leased 
these  premises  to  one  Alfred  P.  Phillips,  for 
a  term  of  ten  years  from  date,  which  prem- 
ises, under  a  series  of  assignments  of  this 
lease,  passed  into  the  possession  of  the  plain- 
tiff on  the  24th  day  of  February,  1912.  This 
lease  provided  that  the  lessee  should  keep 
the  kilns,  buildings,  machinery,  and  plant 
thereon  in  good  repair  and  should  deliver  up 
the  same  at  the  expiration  of  its  tenancy 
in  as  good  condition  as  they  now  are  in, 
ordinary  wear,  fire,  and  other  unavoidable 
casualties  excepted.  Subsequent  to  the  24th 
day  of  February,  1912,  and  up  to  the  8th 
day  of  October,  1914,  the  plaintiff  was  en- 
gaged in  mining  or  quarrying  limestone  on 
these  premises,  and  the  burning,  manufactur- 
ing, and  preparing  the  same  for  market.  At 
the  time  of  the  execution  of  this  lease,  and 
for  a  number  of  years  prior  thereto,  these 
premises  had  been  unoccupied  and  unused 
and  the  kilns  and  buildings  had  been  grossly 
neglected.  At  the  time  these  premises  passed 
into  the  possession  of  the  plaintiff,  the  plant 
thereon  consisted  of  three  lime  kilns,  con- 
structed of  noncombustlble  materials,  to  wft, 
exteriorly  of  brick  and  lined  Internally  with 
Are  brick,  and  the  structures  connected  with 
the  kllhs  buUt  of  wood  were  decayed  and 
unsafe  and  not  practicable  for  the  uses  re- 
quired of  them,  and  a  lime  shed  practically 
dismantled  by  the  removal  of  everything  that 
could  be  carried  away ;  the  plant  being  unfit, 
inadequate,  and  insufficient  for  prosecuting 
the  business  of  the  plaintiff.  The  plaintiff, 
for  the  purpose  of  enabling  it  to  carry  on 
its  business  conveniently  and  efficiently,  was 
compelled  to  erect  and  construct,  and  did 
erect  and  construct,  various  structures  and 
appliances  on  the  leased  premises,  at  its  own 
cost  and  expense,  and  for  its  own  purpose 
and  advantage.  The  structures  erected  by 
the  plaintiff  on  these  leased  premises  con- 
sisted of  a  wooden  tower  on  top  of  the  kilns, 
with  a  hoisting  apparatus  thereon  for  the 
purpose  of  hoisting  their  raw  limestone  and 
fuel  to  the  top  of  the  kilns,  a  platform  on 
top  of  the  kilns  with  a  bridge  leading  there- 
from to  the  hillside  adjoining  the  kilns  for 
the  purpose  of  affording  access  thereto  with 
teams  and  materials,  an  engine  house  and 
other  structures  and  appliances  adapted  to 
the  business  of  the  plaintiff,  costing  in  the 
aggregate  about  $2,500.  The  buildings,  struc- 
tures and  appliances  erected  by  the  plaintiff 
on  these  premises  were  new,  and  did  not 
replace  other  similar   structures,    but   were 


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101  ATLANTIC  RBPORTEE 


(Conn. 


radically  different  from  ttaos^  used  by  their 
predecessors  In  occupancy  of  the  premises, 
and  was  an  alteration  in  the  method  of  hand- 
ling the  raw  material  and  finished  product 
in  the  plaintiff's  business. 

The  plaintiff,  desiring  to  protect  its  prop- 
erty on  these  premises,  made  application  to 
the  local  agent  of  the  Fidelity  Phoenix  Fire 
Insurance  Company  of  New  York,  and  the 
Phoenix  Fire  Insurance*  Company  of  Hart- 
ford, C<mn.,  for  insurance  thereon.  At  the 
time  of  making  such  application,  the  plain- 
tiff, by  its  president  and  general  manager, 
informed  the  agent  of  the  condition  of  the 
property  desired  to  be  covered  by  the  pro- 
posed insurance;  that  the  structures  lo  be 
insured  were  the  property  of  the  plaintiff, 
and  were  located  on  real  estate  occupied  un- 
der a  lease  from  the  defendant;  and  that  it 
desired  to  have  'the  policies  Issued  in  the 
name  of  the  plaintiff,  but  they  were  inform- 
ed by  this  agent  that  the  policies  could  not 
be  issued  in  the  name  of  the  plaintiff,  but 
must  be  issued  in  the  name  of  the  defendant 
as  owner  of  the  land  upon  which  the  same 
were  located.  The  plaintiff,  relying  upon  the 
statement  of  the  agent,  caused  the  property 
of  th^  plaintiff,  located  on  these  premises,  to 
be  insured  for  the  sum  of  $600,  under  policy 
No.  329,  issued  by  the  Fidelity  Phoenix  Fire 
Insurance  Company,  and  for  the  additional 
sum  of  $600,  under  policy  No.  2295,  issued  by 
the  Phoenix  Fire  Insurance  Company,  in  the 
name  of  the  defendant  as  benefldary.  The 
plaintiff  paid  the  premium  on  these  policies, 
retained  the  same  In  Its  possession,  and  it 
bad  no  intention  of  insuring  the  property 
of  the  defendant,  but  intended  to  insure  its 
own  property  located  on  the  leased  premises. 
The  defendant  was  ignorant  that  these  pol- 
icies, Nos.  329  and  2295,  had  been  Issued  un- 
til after  the  pn^wrty  Insured  thereunder  had 
been  destroyed  by  fire,  when  application  was 
made  to  him  by  the  plaintiff  to  execute  a 
proof  of  loss  as  required  by  the  insurance 
<!ompenle8.  The  plaintiff,  by  Its  officers,  re- 
<iuested  the  defendant  to  insure  his  buildings 
on  these  premises ;  but  the  defendant  refus- 
ed to  do  so.  On  October  8,  1914,  the  build- 
ings, structures,  and  appliances  on  these 
premises  belonging  to  the  plaintiff  and  insur- 
ed under  the  policies  were  destroyed  by  fire. 
At  the  time  of  the  execution  of  the  policies, 
and  at  the  time  of  the  loss  occasioned  by 
the  fire,  the  plaintiff  was  the  owner  of  the 
property  Insured  under  these  policies.  Upon 
proof  of  loss,  the  insurance  companies  ad- 
Justed  the  same,  and  paid  the  sum  of  $1,200 
to  the  defendant,  and  the  defendant  retained 
the  same. 

On  November  17,  1914,  the  plaintiff  In- 
itiated proceedings  for  the  dissolution  of  its 
corporate  existence  pursuant  to  the  provi- 
sions of  sections  29  and  30  of  chapter  194 
of  the  Public  Acts  of  1903,  regulating  the 
voluntary  dissolution  of  corporations,  and 
subsequent  to  that  date  the  plaintiff  ceased 


doing  business  as  a  going  concern,  and  its 
directors  have  since  that  been  acting  as  trus- 
tees in  closing  up  the  business  of  the  corpo- 
ration. All  property  belonging  to  the  plain- 
tiff is  in  the  hands  and  under  the  control  of 
its  directors  acting  as  trustees.  The  plain- 
tiff, by  its  directors  acting  as  trustees,  made 
demand  upon  the  defendant  for  the  proceeds 
of  the  insurance  policies,  as  a  part  of  the 
assets  of  the  company  for  the  purpose  of 
liquidating  Its  Indebtedness  and  closing  up 
its  business.  Subsequent  to  the  proceedings 
to  the  winding  up  the  corporate  existence  of 
the  plaintiff,  the  defendant  offered  to  expend 
the  proceeds  of  the  policies  in  restoring  the 
defendant's  own  buildings  on  these  premises 
which  were  not  insured  under  the  policies. 
The  defendant  refused  to  pay  over  the  pro- 
ceeds of  the  insurance  to  the  plaintiff.  The 
proceeds  of  the  insurance  policies  in  the 
hands  of  the  defendant  are  Insufficient  to 
restore  the  structures  and  appliances  built 
by  the  plaintiff,  to  an  efficient,  workable  con- 
dition. Immediately  after  proceedings  were 
commenced  to  terminate  the  corporate  exist- 
ence of  the  plaintiff,  its  directors,  acting  as 
trustees,  surrendered  the  possession  of  the 
leased  premises  to  the  defendant,  and  the  de- 
fendant has  since  been  in  possession  of  the 
same. 

Leo  Davis,  of  Norwalk,  for  appellant 
George  Wakeman,  of  Danbury,  for  appellee. 

RORAJBACK,  J.  (after  stating  the  facts  as 
above).  The  plaintiff,  by  its  complaint,  seeks 
to  recover  from  the  defendant  the  proceeds 
of  two  Insurance  policies  described  in  the 
complaint.  Judgment  was  rendered  for  the 
plaintiff  to  recover  $819.27. 

Several  reasons  of  appeal  are  based  upon 
alleged  errors  of  the  trial  court  In  denying 
certain  paragraphs  of  the  defendant's  motion 
to  correct  the  finding.  This  motion  to  cor- 
rect is  Informal.  If  we  consider  it  under 
sections  795  and  790  of  the  General  Statutes, 
we  do  not  find,  as  we  should,  any  written 
exceptions  to  any  finding  of  facts  or  refuging 
to  find  facts  as  requested.  Practice  Book 
(1908),  p,  268. 

[1]  The  reasons  of  appral,  if  considered 
under  the  provisions  of  section  797  of  the 
General  Statutes,  are  irregular.  This  sec- 
tion in  substance  provides  that  in  lieu  of 
the  motion  to  correct,  under  sections  794, 
795,  and  796  of  the  General  Statutes,  either 
party  may,  within  one  week  after  he  shall 
have  received  notice  of  the  filing  of  such 
finding,  file  with  the  clerk  of  the  court  a 
copy  of  the  evidence  on  rulings  with  a  mo- 
tion that  such  evidence  be  made  a  part  of  the 
record  on  appeal,  and  tiiat  the  claims  of  the 
appellant  for  such  correction  may  be  pre- 
sented In  the  assignments  of  error  in  the 
same  way  that  questions  of  law  are  now 
raised.  The  record  discloses  that  this  mo- 
tion, to  make  the  evidence  on  rulings  part 
of  the  record,  came  too  early  in  the  defend- 


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PLUM  TKEES  LIME  CO.  v.  EKELER 


511 


anrs  atlempt  to  ta&e  his  appeal.  It  should 
hare  beeb  made  within  one  week  after  he 
received  notice  of  the  Wing  of  the  finding. 
It  appears,  however,  that  this  motion  was  lu 
fact  made  about  four  mouths  before  the  find- 
ing of  the  trial  court  was  filed  with  the  clerk 
of  the  court.  But  It  appears  that  the  court 
below  recognized  the  defendant's  motion  as 
made  under  the  provisions  of  section  797,  as 
it  ordered  a  cenrtiflcate  of  the  evidence.  The 
purpose  of  the  defendant  is  clear,  and  we  are 
not  disposed,  by  a  strict  construction  of  sec- 
tion 797  of  the  General  Statutes,  to  deprive 
him  of  a  remedy  which  If  properly  pursued 
was  his. 

One  of  the  requests  to  correct  the  finding 
was  allowed  by  the  trial  court  Other  as- 
signments of  error  relate  to  facts  of  but  little 
imi>ortance.  The  evidence  as  to  the  remain- 
der of  th0  facts  referred  to  in  the  motion  to 
correct  is  either  conflicting  or  of  such  a 
nature  that  we  cannot  say  that  the  trial 
court  erred  in  finding  or  refusing  to  find  cer- 
tain facts.  Therefore  the  motion  to  correct 
the  finding  is  overruled,  and  the  claim  for  a 
correction  is  denied. 

[2]  The  first  four  reasons  of  appeal  assign 
cirror  in  a  general  and  indefinite  manner. 
They  may,  however,  be  considered  as  suggest- 
ing the  proposition  that  the  court  erred  in 
holding  that  the  Plum  Trees  Lime  C!ompany 
had  an  insurable  Interest  in  the!  prox>erty  in- 
sured.    It  may  be  said  generally  that: 

"By  the  law  of  insurance,  any  person  has  an 
insurable  interest  in  property,  by  the  existence 
of  which  he  receives  a  benefit,  or  by  the  de- 
straction  of  which  he  will  suffer  a  loss,  whether 
he  has  or  has  not  any  title  in,  or  lien  upon, 
or  possession  of  the  property  itselt" 

It  is  stated  in  Getcbell  v.  Mercantile  Sc 
Mfrs.  Mat  P.  Ins.  Co.,  109  Me.  274,  83  Atl. 
801,  42  L.  R.  A.  (N.  S.)  135,  Ann.  Cas.  1913B, 
739,  that: 

"The  crucial  question  therefore  is:  Will  the 
insured  be  directly  and  financially  affected  by 
the  loes  of  the  property  insured.  If  so,  he  has 
such  an  interest  as  the  law  will  recognize. 
The  loss  must  not  be  indirect  or  sentimental, 
but  direct  and  actual.  It  is  not  necessarily  an 
interest  in  the  property  in  the  sense  of  title,  but 
a  concern  in  the  preservation  of  the  property, 
and  such  a  relation  to  or  connection  with  it  as 
will  necessarily  entail  a  pecuniary  loss  in  case 
of  its  injury  or  Bestruction.  This  opens  a  wide 
field,  and  the  decisions  take  an  extensive  range 
with  a  growing  tendency  to  expand  rather  than 
to  contract  the  scope  of  the  term.  It  has  there- 
fore been  held  that  it  is  sufficient  if  the  in- 
sured has  any  legal  interest  whatever  as  an  own- 
er in  fee,  a  mortgagee,  a  tenant  for  life^  or  a 


In  Fowle  T.  Springfield  F.  &  M.  Ins.  Co., 
122  Mass.  194,  23  Am.  Rep.  308,  the  court 
said: 

"The  plaintiffs  had  an  insnrable  interest  In 
this  building.  They  had  erected  it  at  their 
own  expense,  and  used  *  •  •  it,  in  their 
business,  as  a  carpet  store.  They  might  wish 
to  rebuild  it.  or  to  indemnify  themselves  for 
their  expenditure,  in  the  event  of  its  loss  by 
fire.  In  either  case,  it  was  proper  for  them  to 
procure  insurance,  and  they  might  lawfully  do 
80  to  the  extent  of  the  value  of  the  building.  It 
is  clear  that  they  wonld  derive  benefit  from  its 


continuing  to  exist,  and  wonld  be  injured  by  its 
destruction." 

The  plaintiffs  In  this  case  wefre  sublessees 
of  the  land  on  which  the  building  insured 
stood.  See,  also,  cases  dted  in  note  to  Ann. 
Cas.  1913E,  741,  and  14  VL  C.  L.  915,  S  91. 

[S]  In  the  present  case  the  plaintifTs  lease 
required  it  to  keep  the  kilns,  buildings,  and 
machlneiy  In  good  repair.  It  had  expended 
about  $2,600  in  erecting  buildings,  structures, 
and  appliances  upon  the  leased  premises. 
These  buildings  were!  new  and  entirely  dif- 
ferent from  those  used  by  their  predecessors 
in  occupancy.  This  lease  it  appears,  under 
ordinary  conditions,  was  not  to  expire  until 
August,  1920.  Under  theise  circumstances, 
the  plaintiff  had  such  an  insurable  interest 
In  the  property  In  question  as  permitted  it  to 
procure  the  Insurance  and  to  recover  In  case 
of  loss. 

The  plaintifTs  complaint  alleges  that: 

"This  corporation,  for  its  own  t>ene&t,  protec- 
tion, and  advantage,  and  at  its  own  cost  and 
expense,  insured  its  property,  so  erected  and 
constructed  on  the  leased  premises,  by  policies 
which,  through  error,  inadvertence,  and  mistake, 
were  issued  by  the  insurance  companies  in  the 
same  of  the  defendant,  Samuel  Keeler,  as  bene- 
ficiary, instead  of  in  the  name  of  the  Plum 
Trees  IJme  Company,  although  the  defendant 
had  no  interest  in  these  policies  or  the  property 
insured  thereby,  other  than  a  nominal  one  re- 
sulting from  the  error  as  aforesaid." 

[4]  These  allegations  were  denied  by  the 
defendant  in  his  answer.  We  learn  from  the 
judgment  file  that  the  Issues  upon  the  ques- 
tions thus  presented  were  fovmd  in  favor  ot 
the  plaintiff.  The  finding  of  facts  made  by 
the  trial  court  is  entirely  consistent  with  this 
adjudication.  It  also  appears  that  the  de- 
fendant when  requested  to  insure  his  build- 
ings refused  to  do  so;  and  that  the  value  of 
the  plaintiff's  buildings,  and  structures  stand- 
ing upon  the  leased  premises,  when  they 
were  destroyed  by  fire,  was  much  greater 
than  the  amount  of  insurance  covered  by  the 
insurance  policies  then  in  force.  Under 
these  conditions,  it  Is  now  too  late  for  the 
defendant  to  claim  that  the  Plum  Trees  lime 
Company  bad  no  legal  or  equitable  right  to 
recover  this  insurance  money. 

The  defendant  also  claims  that  the  trial 
court  erred  in  reaching  the  conclnsion  that 
the  defendant  was  holding  this  insurance 
money  in  trust  for  the  plaintiff.  It  must  be 
conceded  that  it  appears  from  the  face  of  the 
insurance  policies  that  the  apitarent  legal  ti- 
tle to  this  Insurance  and  the  money  derived, 
therefrom  was  in  the  defendant  But  the 
court  below  has  found  as  a  fact  that  the  in- 
tention of  the  Hum  Trees  Lime  Company, 
the  party  procuring  the  insurance,  was  to 
protect  its  own  property,  and  not  that  of  the 
defendant.  It  has  also  been  found  that 
through  mistake  and  Inadvertence  the  insur- 
ance policies  were  Issued  by  the  insurance 
companies  in  the  name  of  the  defendant 
Keeler,  as  beneficiary,  although  he  has  no 
interest  tn  the  policira  other  than  a  nominal 
one. 


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[8]  Mr.  Justice  Swayne,  In  Seymour  v. 
Freer,  8  Wall.  (75  U.  S.)  202.  19  L.  Ed.  306, 
defined  a  trust  as: 

"Where  there  are  rights,  titles,  and  interests 
in  property  distinct  from  the  legal  ownership. 
In  such  cases,  the  legal  title,  in  the  eye  of  the 
law,  carries  with  it,  to  the  holder,  absolute  do- 
minion, but  beUnd  it  lie  beneficial  rights  and 
interests  in  the  same  property  belonging  to  an- 
other. These  rights,  to  the  extent  to  which  they 
exist,  are  a  charge  upon  the  property,  and  con- 
stitute an  equity  which  a  court  of  equity  will 
protect  and  oiforce,  whenever  its  aid  for  that 
purpose  is    •    *    •    invoiced." 

It  la  also  a  familiar  principle  of  law  that 
a  trust  may  be  express  or  Implied,  and  that 
It  1b  implied  when  dedudble  from  the  trans- 
action as  a  matter  of  Intent  8  Words  and 
Phrases,  p.  7172. 

[$]  It  follows  therefore  that  from  the  facts 
found  the  trial  court  properly  held  that  the 
defendant  might  well  be  regarded  as  holding 
the  proceeds  of  this  Insurance  money  in 
trust, 

One  reason  of  appeal  Is  that  the  court  err- 
ed in  ruling  and  holding  that  the  plaintitr 
was  not  bound,  under  its  lease,  to  pay  to  the 
defendant  rent  for  the  term  beginning  March 
1,  1914,  and  ending  March  1, 1916.  From  the 
scant  information  which  the  record  contains 
ui>on  this  branch  of  the  case  .we  cannot  find 
any  error  in  the  action  of  the  trial  court  in 
that  connection. 

Upon  the  facts  found  there  Is  no  ground 
for  the  claim  now  made  that  the  court  erred 
in  holding  that  the  defendant  was  not  enti- 
tled to  a  set-off  for  his  expenses  In  a  former 
suit  in  collecting  the  insurance  money  now  in 
question.  It  appears  that  the  only  Issue  in 
that  case  was  the  right  of  the  possession  of 
the  checks  which  were  given  by  the  insur- 
ance companies  in  their  adjustment  of  the 
loss  sustained  by  fire.  These  checks  were 
made  payable  to  the  defendant,  Keeler,  and 
were  In  the  possession  of  Tomlinson,  the 
president  of  the  Plum  Trees  Lime  Company. 
This  question  was  litigated  between  Keeler 
and  Tomlinson.  Keeler  was  successful  in  this 
litigation,  and  Tomlinson  paid  the  costs. 

It  appears  that  this  litigation  was  not 
against  the  corporation,  but  against  an  In- 
dividual who  happened  to  be  president  of 
the  company.  But  a  more  complete  and  de- 
cisive objection  to  this  claim  is  that  it  is  ap- 
parently based  upon  a  demand  for  attorney's 
fees  in  an  action  in  which  no  such  claim 
could  have  been  properly  allowed. 

There  Is  no  error.  The  other  Judges  con- 
curred. 

(87  N.  J.  Bq.  60») 

JOB  HAINES  HOME  FOR  AGED  PEOPLE 
v.   KEENE   et  al.     (Na   41/192.) 

((3ourt  of  Chancery  of  New  Jersey.     June  29, 
1917.) 

1.  Wiixs  <S=»782(12)  —  Devise  or  Pboprbtt 
Not  Bklongino  to  Testator  —  Constbuc- 

TION. 
Where  a  testator  devised  to  his  widow  for 
life,  remainder  to  his  son,  the  realty  upon  which 


he  lived  and  to  which  he  had  no  title  at  the 
time  of  his  death,  but  upon  his  death  became 
the  absolute  property  of  his  widow,  .as  tenant 
by  the  entirety  and  gave  widow  personal  prop- 
erty wliicb  she  accepted,  in  the  absence  of  an 
express  statement  in  the  will  that  the  provi- 
sions for  the  widow  were  given  her  in  lieu  of 
her  ownership  of  the  realty,  such  intention  can 
only  be  deduced  by  dear  and  manifest  implica- 
tion from  the  will,  founded  on  the  fact  that  the 
widow's  claim  of  title  to  the  property  would 
be  inconsistent  with  the  will  and  so  repugnant 
to  its  dispositions. 

[Ed.  Note.— For  other  cases,  see  Wills,  Ont. 
Dig.  t  2031.] 

2.  Wiixs  *=»782(12)— Rights  of  Dbvibees— 
Election  —  Pbovision  fob  Subvivino 
Wife. 

The  intent  of  a  husband  to  dispose  of  his 
wife's  property  and  thus  put  her  to  an  election 
will  not  be  inferred  where  the  words  of  the 
gift  would  have  their  fair  and  natural  imimrt 
by  applying  them  to  the  property  which  he  has 
the  pofweT  to  dispose  of  by  will. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  S  2031.1 

3.  Wills  $s>781  —  Rights  of  Devisees  — 
Election. 

In  determining  the  necessity  for  an  election 
between  property  rights  and  rights  under  a  will, 
general  words  of  description  such  as  "all  my 
lands,"  "all  my  estate,"  etc.,  do  not  require  the 
beneficiary  to  elect,  since  the  testator's  language 
can  have  full  effect  when  applied  only  to  his 
share  or  interest,  and  he  is  presumed  to  have 
intended  to  give  only  tlie  property  he  had  to  dis- 
pose of. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  Sg  2013-2017.] 

4.  Wills  «=9781— Rights  of  BsNEnciABiES 
— E1.BCT10N  —  Specific  Devise  —  Pbofebit 
Owned  by  Entiketies. 

A  case  for  an  election  by  the  co-owner  of 
property,  who  is  a  beneficiary  under  testator's 
wil(  will  be  presented  only  where  testator's 
gift  of  it  to  another  is  so  expressed  by  words  of 
description  as  to  import  an  intent  to  give  to 
the  latter  the  whole  of  the  common  property  in 
its  entirety. 

[Ed.  Note.— For  other  cases,  see  Wills,  (^nt 
Dig.  i§  2013-2017.] 

6.  Wills  «=>782(12)  —  Rights  of  Benefici- 
ABiES— Election— Specific  Devise— Pbop- 
ebty  Owned  by  Entireties. 

Where  testator  devised  to  his  wife  for  life,  re- 
mainder to  his  son,  property  owned  by  entireties 
by  the  specific  words  of  description  "the  house 
and  premises  where  I  now  reside,"  the  specific 
gift  to  the  son  put  the  widow,  who  also  took  a 
bequest  of  personal  property  under  the  will,  to 
an  election. 

[M.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {  2031.] 

8.  Wills  *=>781— Rights— Elbotton. 

Nor  could  the  other  sons  do  so  upon  her 
death  where  they  had  accepted  provi^ons  made 
for  them  under  the  will. 

[Ed.  Note.— For  other  cases,  see  Wills,  (3ent 
Dig.  Si  2013-2017.] 

7.  Wills  ®=»718— Rights  — Electiow  —  Ao- 
CEPTANCE  or  Benefits. 

A  person  accepting  a  benefit  under  a  will 
is  required  on  the  doctrine  of  election  to  perform 
all  the  requirements  of  the  will. 

[Ed.  Note.— For  other  cases,  see  Wills,  C!ent. 
Dig.  IS  1717-1721.] 

8.  Wills  ©=718  —  Rights  —  Election  —  At> 
CEPTANCE  OF  Benefits. 

A  person  may  not  take  a  benefldal  inte>'est 
under  a  will  and  at  the  same  time  set  np  any 


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JOB  HAINES  HOME  FOR  AGED  PEOPLE  r.  KEENE 


613 


right  or  daim  of  his  own,  although  otherwise 
legal  and  well-founded,  which  will  defeat  or  in 
any  way  prevent  the  full  effect  and  operation  of 
every  part  of  the  will. 

[Ed.  Note.— For  other  caaes.  Me  Willa,  Cent 
Dig.  SS  1717-1721.] 

9.  WlXLB  «=3792(5)— BVIDinCB— SUFFICIENOT. 

Evidence  held  to  justify  the  conclusion  that 
the  other  sons  consented  to  and  acquiesced  in 
the  disposition  of  the  property  made  by  the  will, 
and  elected  to  take  toe  benefits  given  them  by 
the  will  rather  than  assert  their  right  to  an  in- 
terest in  the  property. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Kg.  S§  2061,  2062.] 

10.  Wnxs     «=»7»6—Right&-Blbotios— Va- 
lidity. 

If  beneficiaries  under  a  will  made  an  elec- 
tion in  ignorance  of  their  right  to  property  dis- 
posed of  by  the  testator,  or  under  a  mistalce 
as  to  the  real  nature  and  extent  of  their  rights 
therein,  such  election  would  not  be  binding  and 
could  be  revoked  unless  rights  of  third  parties 
had  intervened  which  would  be  interfered  with 
by  the  revocation. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  a  2064-2068,  2070.] 

11.  Wnxs  «=»778— RioHTS  of  Lboatees  and 
Devisees— Elbction-Nattjbb  of  Doctbini!. 

The  doctrine  of  election  is  one  resulting  in 
compensation  and  not  in  forfeiture. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  ii  2004,  2006,  2010.] 

Action  to  quiet  title  by  tbe  Job  Haines 
Home  for  Aged  People  against  Clarence  A. 
Keene  and  others.    Decree  for  complainant 

Charles  G.  Titsworth,  of  Newark,  for  com- 
plainant Albert  W.  Harrla,  of  Newark,  for 
defendants. 

FOSTER,  V.  C.  This  Is  an  action  to  quiet 
complainant's  title  to  certain  property  in  the 
dty  of  Newark  xised  as  a  home  for  aged 
people. 

The  premises  in  question  were  part  of  the 
real  estate  devised  by  the  last  will  of  Jos- 
eph Crane  (which  was  probated  October, 
1832)  to  his  son  and  four  daughters.  Phebe 
Keene,  one  of  tbe  danghters,  thus  acquired 
an  undivided  one-flfth  Interest  in  the  prop- 
erty, and  by  a  deed  dated  October  IS,  1832, 
the  remaining  devisees  conveyed  their  un- 
divided fonr-flfths  interest  to  said  Phebe 
Keene  and  Alfred  Keene,  her  husband. 

By  his  will  Alfred  Keene,  who  died  in  1880, 
bequeathed  to  his  wife,  Phebe,  certain  per- 
sonal property,  and  also  gave  her  tbe  use  of 
the  premises  in  question  for  life,  and  on  her 
death  he  devised  the  same  to  liis  son,  Joseph 
EJdward  Keene.  In  addition  to  Joseph,  Al- 
fred Keene  left  him  surviving  two  other 
sons,  Thomas  Anstln  Keene  and  Howard  De 
Witt  Keene,  and  the  defendants  are  heirs  at 
law  of  Thomas  and  Howard. 

Alfred  Keene  made  the  devise  to  his  son 
Joseph  on  the  death  of  his  widow  of  specific 
property,  viz.  "the  house  and  premises  where 
I  now  reside,"  which  are  the  premises  in 
question,  and  this  devise  was  made  to  Jos- 
eph and  accepted  by  him,  as  stated  in  Al- 


fred's will,  "in  full  satisfaction  of  all  claims 
against  me  or  against  my  estate  for  any  serv- 
ices rendered  to  me  in  my  lifetime  or  for 
any  other  Indebtedness  of  any  kind  whatso- 
ever." 

Thomas  was  given  and  discharged  from  the 
amount  of  his  Indebtedness  to  his  father, 
and  to  Howard  was  given  a  bond  and  mort- 
gage for  ?1,800,  with  the  accumulated  inter- 
est thereon;  and  Alfred  also  bequeathed  and 
devised  to  each  of  his  sons  an  equal  one-third 
interest  In  the  residue  of  tils  estate. 

By  bis  will  Alfred  Keene  sought  to  make 
a  balanced  disposition  of  his  estate  among 
his  widow  and  their  children,  and  the  widow 
and  children  accepted  without  objection  the 
provisions  which  he  bad  made  for  them. 

After  the  death  of  her  husband,  Phebe 
Keene  continued  to  live  on  the  property  with 
her  son  Joseph  for  the  rest  of  her  life. 
Thomas  had  his  home  In  Brooklyn,  N.  X., 
where  he  died  in  1889,  and  Howard's  home 
was  In  Tonkers,  N.  Y.,  where  he  died  in  1899. 
Neither  of  them  or  any  of  their  children  ever 
lived  on  the  premises  in  suit  after  the  death 
of  Alfred  in  1880.  Joseph,  however,  continu- 
ed to  live  on  the  property  from  the  time  of 
his  father's  death  until  he  died  on  November 
22,  1912. 

Joseph  left  a  last  will  and  testament, 
which  has  been  duly  probated,  by  which  be 
gave  certain  legacies  to  tbe  defendants,  the 
children  of  his  brothers,  Thomas  and  How- 
ard, amounting  to  about  $4,500,  and  which 
they  have  accepted,  and  be  devised  the  prem- 
ises in  question  and  the  residue  of  his  real 
and  personal  property  to  complainant  for 
the  purpose  of  establishing  and  maintaining 
a  home  for  aged  people.  Complainant  has 
been  in  possession  of  the  premises  since  May, 
1914,  and  has  been  conducting  the  same  as 
an  auxiliary  home  for  aged  people  in  accord- 
ance with  the  direction  of  Joseph's  will, 

Joseph's  title  to  the  premises  under  the 
devise  from  his  father  was  never  questioned 
by  his  mother,  Phebe  Keene,  or  by  his  broth- 
ers, Thomas  and  Howard.  Defendanto,  how- 
ever, as  the  respective  heirs  at  law  of  Thom- 
as and  Howard,  now  claim  to  own  an  un- 
divided two-thirds  Interest  in  the  property 
by  reason  of  the  facte  above  set  forth.  Their 
contention  is  that  under  the  will  of  their 
great-grandfather,  Joseph  Crane,  their  grand- 
mother, Phebe  Keene,  became  seised  of  an 
undivided  one-flfth  interest  in  the  property 
absolutely;  that  the  deed  of  October  15, 
1832,  from  Joseph  Crane's  four  other  chil- 
dren and  devisees  to  Phebe  Keene  and  Alfred 
Keene,  her  husband,  conveyed  their  four- 
fifths  Interest  in  the  property  to  Phebe  and 
Alfred  as  tenante  by  the  entirety ;  and  that 
upon  the  death  of  Alfred  the  fee  to  the  en- 
tire property  became  vested  in  Phebe  by  the 
joining  of  her  title  to  the  undivided  one-fifth 
interest  with  her  title  to  the  remaining  four- 


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fifths  Interest  which  she  acqnired  as  the  sur- 
viving tenant  by  the  entirety.  They  fur- 
ther contend  that,  the  fee  to  the  property  be- 
ing thus  vested  In  Phebe,  the  will  of  her 
husband,  Alfred,  by  which  he  gave  her,  as 
Ms  widow,  a  life  Interest  In  the  property, 
and  on  her  death  devised  the  same  to  Joseph, 
was  Ineffective  to  accomplish  Its  purpose,  as 
the  property  belonged  absolutely  to  Phebe, 
and  on  her  death  Intestate  the  property  de- 
scended to  her  three  sons,  Joseph,  Thomas, 
and  Howard,  and  that  the  only  Interest  In 
the  property  which  Joseph  could  and  In  effect 
did  devise  to  complainant  was  his  undivided 
Interest  in  the  property,  and  that  these  de- 
fendants, as  the  heirs  of  Thomas  and  How- 
ard, both  of  whom  died  intestate,  inherited 
the  remaining  two-thirds  interests  on  the 
death  of  their  respective  parents. 

Complainant's  answer  to  the  contentions  of 
defendants  is  that  Phebe  Keene  and  all 
claiming  under  her,  or  under  her  sons  Thom- 
as and  Howard,  are  estopped  from  asserting  ti- 
tle to  the  property,  or  to  the  disposition  made 
of  it  by  the  will  of  Alfred,  and  also  by  the  will 
of  Joseph,  because  Phebe  Keene  and  her  sons 
Thomas  and  Howard  elected  to  take  and  ac- 
cept the  provisions  made  for  them  in  the  will 
of  Alfred  in  place  of  their  interest  in  the 
premises  in  question,  and,  further,  because 
the  defendants  elected  to  accept  the  provi- 
sions made  for  them  by  the  will  of  their 
Uncle  Joseph,  in  lieu  of  any  Interest  they 
may  have  been  entitled  to  in  the  property. 

Complainant  also  asserts-  title  to  the  prop- 
erty which  it  claims  to'  have  acquired  by  the 
continued  adverse  possession  thereof  of  Jos- 
eph and  complainant  since  the  death  of  Al- 
fred Keene  in  1880.  Complainant  further  in- 
sists that,  under  a  provision  of  Joseph's  will 
which  reads,  "If  any  contest  the  provisions 
of  this  will  they  are  to  lose  all  benefits  there- 
in," defendants,  having  elected  to  receive 
and  accept  the  benefits  given  them  under  his 
will,  are  estopped  by  this  provision  from  con- 
testing the  devise  therein  made  to  complain- 
ant 

The  questions  to  be  determined  under  the 
issue  thus  presented  are: 

Whether  Phebe  Keene  and  her  sons  Thomas 
and  Howard  were  put  to  their  election  by  the 
disposition  made  of  her  property  by  the  will 
of  her  husband,  and  if  they  were,  if  they  ex- 
ercised their  election  by  accepting  the  ben- 
efits given  them  by  his  will. 

If  Phebe,  Thomas,  and  Howard  were  not 
obliged  to  elect  and  did  not  elect  under  the 
will  of  Alfred  Keene,  were  defendants  as  the 
heirs  of  Thomas  and  Howard  put  to  their 
election  by  the  devise  of  the  property  to  com- 
plainant under  the  will  of  Joseph,  and,  if  so, 
did  they  exercise  their  election  by  accepting 
the  benefits  given  them  by  his  will? 

If  an  election  In  either  case  was  not  nec- 
essary, or  if  it  were  not  exercised,  has  com- 
plainant through  its  own  and  Joseph's  pos- 


session acquired  Adverse  title  under  color  of 
title  to  the  property? 

What  effect,  if  any,  has  the  provision  of 
Joseph's  will  against  a  contest  npon  the  con- 
troversy ? 

The  general  doctrine  of  the  law  relating  to 
election  is  stated  by  Mr.  Justice  Depoe  in 
delivering  the  opinion  of  the  Court  of  Errors 
and  Appeals  in  Pratt  v.  Douglas,  38  N.  3.  Eq. 
516  at  p.  536,  as  follows: 

"Where  the  testator  has  only  a  partial  inter- 
est in  the  property  he  diBposes  of  by  his  will, 
courts  will  incline  as  far  as  possible  in  favor 
of  a  construction  which  will  apply  the  language 
of  the  will  only  to  the  interest  or  estate  which 
the  testator  is  able  to  dispose  of  in  his  own 
right,  and  it  requires  an  unequivocal  expression 
or  indication  of  an  intent  to  dispose  of  the  en- 
tire property,  in  order  to  raise  a  necessity  for 
an  election.    1  Pom.  Eq.  Jur.  pars.  488-193." 

And  he  adds  that  in  Adslt  v.  Adslt,  2  Johns. 
Ch.  (N.  T.)  448,  7  Am.  Dec.  639,  ChanceUor 
Kent  from  a  review  of  the  case  deduces  a 
rule  that  has  met  with  uniform  approval: 

That  to  enable  the  court  to  deduce  an  inten- 
tion that  a  testamentary  gift  to  the  widow  should 
be  in  lien  of  dower,  "the  claim  of  dower  must  be 
inconsistent  with  the  will,  and  repugnant  to  its 
dispositions,  or  some  of  them ;  it  most,  in  fact, 
disturb  or  disappoint  the  will." 

In  Stephenson  v.  Brown,  4  N.  3.  Eq.  503, 
certain  lands  were  devised  for  life  to  testa- 
tor's widow,  and  it  was  held  that: 

"The  widow  was  at  liberty  to  take  her  dower 
in  the  lands,  or  to  accept  the  devise.  If  she 
elected  to  take  the  devise,  she  must  take  it  cum 
onere.  There  is  no  rule  distinguishing  between 
the  widow  and  other  devisees,  as  "the  settled 
principle  of  equity  is  that  he  who  accepts  a  ben- 
efit under  a  will,  must  conform  to  all  its  provi- 
sions and  renonnce  every  right  inconsistent  with 
them." 

[1]  In  the  case  before  us  we  find  Alfred 
Keene  by  his  will  devising  to  his  son  the  par- 
ticular property  where  he  lived  and  to  which 
he  had  no  title  at  the  time  of  his  death,  and 
which  upon  his  death  became  the  absolute 
property  of  Ids  widow,  and  giving  her  a  life 
interest  therein,  together  with  certain  per- 
sonal property  which  she  accepted.  There 
is  no  express  statement  in  bis  will  that  the 
provisions  made  for  his  widow  are  given  her 
In  lieu  of  her  ownership  of  the  property,  and 
an  intention  on  his  part  that  such  should  be 
their  effect  can  only  be  deduced  by  clear  and 
manifest  implications  from  bis  will,  founded 
upon  the  fact  that  her  claim  of  title  to  the 
property  would  be  inconsistent  with  the  will 
and  so  repugnant  to  its  dispositions  as  to  dis- 
turb and  defeat  them.  Pratt  v.  Douglas, 
supra. 

[2]  An  Intent  of  the  husband  to  dispose  of 
his  wife's  share  of  property,  and  thus  put  her 
to  an  election,  will  never  be  inferred  when 
the  words  of  the  gift  may  have  their  fair 
and  natural  Import  by  applying  them  only 
to  the  property  which  he  has  the  power  to 
dispose  of  by  will.    1  Pom.  Eq.  Jur.  S  550- 

[3]  In  determining  the  necessity  for  an 
election  there  is  a  dLstlnctlon  between  a  gift 
in  general  words  of  description  such  as  "all 


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615 


my  lands"  or  "all  my  estate"  and  the  like, 
and  a  gift  of  spedflc  property,  "In  cases  of 
the  first  class,  an  obligation  to  elect  does  not 
arise,  for  the  testator's  language  can  have 
full  effect  when  applied  only  to  his  share  or 
Interest  and  he  is  presnmed  to  have  intend- 
ed to  give  only  the  property  he  had  to  dis- 
pose ot." 

[4]  "In  cases  of  the  second  class  It  can- 
not be  said  that  upon  every  specific  devise 
or  beqnest  a  duty  to  elect  arises.  A  case  for 
an  election  by  the  co-owner  of  the  property 
80  given,  who  is  a  beneficiary  under  the  tes- 
tator's will,  will  be  presented  only  where  the 
testator's  gift  of  it  to  another  is  so  express- 
ed by  words  of  description  as  to  import  an 
Intent  to  give  to  the  latter  the  whole  of  the 
common  property  In  Its  entirety."  Pratt  v. 
Douglas,  38  N.  J.  Eq.  538. 

[6,  8]  The  will  of  Alfred  Keene  In  the  devise 
to  Joseph  Qsed  the  specific  words  of  descrip- 
tion "the  house  and  premises  where  I  now 
reside,"  and  it  is  clear  from  this  that  he  in- 
tended this  property  upon  the  death  of  his 
widow  should  be  Joseph's  absolutely;  fur- 
thermore, the  will  states  that  this  gift  to 
Joseph  was  in  satisfaction  of  testator's  in- 
debtedness to  him;  and  the  remainder  of  tes- 
tator's estate,  excepting  an  undivided  one- 
third  Interest  In  the  residue,  was  given  to  his 
widow  and  two  other  sons.  And  it  would 
seem  under  the  principle  relating  to  a  specific 
devise  stated  above  that  the  specific  gift  of 
the  homestead  to  Joseph  put  the  widow  to 
her  election.  She  could  not  assert  her  title 
to  it  and  accept  the  personal  property  be- 
queathed to  her  without  defeating  and  dis- 
appointing the  will;  nor  could  her  sons 
Thomas  and  Howard  do  so  on  her  death,  as 
they  had  accepted  the  provisions  made  for 
them  under  their  father's  will. 

On  the  distribution  of  Alfred's  estate  and 
the  payment  to  the  widow  and  to  Thomas 
and  Howard  of  the  gifts  made  to  them,  there 
was  nothing  bat  Joseph's  undivided  one-third 
interest  in  the  residue  out  of  which  testator's 
indebtedness  to  blm  could  be  paid. 

This  clearly  was  not  testator's  intention. 
His  scheme  of  distribution  contemplated  suit- 
able provision  for  his  widow  and  children 
and  the  settlement  of  the  Indebtedness  owing 
by  him  to  Joseph.  His  widow  and  his  sons 
Thomas  and  Howard  could  not  take  the  pro- 
visions made  for  them  and  then  claim  title 
to  the  property  devised  to  Joseph  without 
dlstnrbing  and  disappointing  testator's  oth- 
er dispositions  of  his  property  and  defeating 
bis  attempt  to  settle  the  indebtedness  owing 
by  liim  to  Joseph  by  the  devise  of  his  home. 
[7]  It  is  well  settled  that  a  person  accept- 
ing a  benefit  under  a  will  Is  required,  on  the 
doctrine  of  election,  to  perform  all  the  re- 
quirements of  the  will.  "He  cannot  disap- 
point a  will  under  which  he  takes  a  benefit." 
Bird  V.  Hawkins,  58  N.  J.  Eq.  229,  at  page 
246.  42  Atl.  588.  at  page  503. 

[SI  And  the  rule  is  equally  well  settled 
that  a  man  shall  not  take  any  beneficial  in- 


terest under  a  will,  and  at  the  same  time  set 
up  any  right  or  claim  of  his  own,  it  other- 
wise legal  and  well-founded,  which  shall  de- 
feat or  in  any  way  prevent  the  full  effect 
and  operation  of  every  part  of  the  will.  Van 
Duyne  v.  Van  Duyne,  14  N.  J.  Eq.  60. 

Mrs.  Keene  and  her  sons  Thomas  and  How- 
ard, in  accepting  the  benefits  provided  for 
them  under  Alfred's  will,  were  required  on 
the  doctrine  of  election  to  relinquish  such  of 
their  rights  as  were  Inconsistent  with  the 
provisions  of  his  will  in  order  "that  no  dis- 
position of  the  testator  therein  may  be  de- 
feated." Pratt  T.  Douglas,  supra,  38  N.  J. 
Eq.  p.  538. 

[9]  The  fact  that  Mrs.  Keene  accepted  the 
provisions  made  for  her  by  the  will  and  that 
after  the  death  of  her  husband  she  continued 
for  a  few  years,  and  until  her  death,  to  re- 
side on  the  property  with  Joseph  in  the  en- 
joyment of  the  life  estate  therein  given  her 
by  the  will,  and  that  Thomas  and  Howard 
removed  from  the  state  and  established 
homes  elsewhere,  and  allowed  Joseph  to  as- 
sert and  to  exercise  sole  ownership  of  the 
property,  without  claiming  at  any  time  their 
right  to  any  interest  therein.  Justifies  the 
conclusion  that  they  consented  to  and  ac- 
quiesced in  the  disposition  of  the  property 
made  by  their  father's  will  and  elected  to 
take  the  benefits  given  them  by  by  his  will, 
rather  than  assert  their  right  to  an  interest 
in  the  property.  And  the  same  comment  can 
be  made  and  the  same  conclusion  reached  on 
the  conduct  of  the  defendants  in  accepting 
the  provisions  made  for  them  by  the  will 
of  their  Uncle  Joseph. 

Since  the  death  of  Alfred  In  1880  all  par- 
ties, including  the  defendants,  having  any 
right  to  assert  an  interest  in  the  premises 
in  question,  remained  silent  until  after  Jos- 
eph's death.  They  permitted  him  to  lose 
the  opportunity  of  having  the  indebtednes? 
owing  him  by  his  father  paid  out  of  his  fa- 
ther's estate,  they  allowed  him  for  30  years 
to  bear  the  expense  of  maintaining  and  im- 
proving the  property,  and  the  defendants  ac- 
cepted the  benefits  amounting  to  about  $4,500 
which  Joseph  gave  them  by  his  will  under 
the  belief  that  he  owned  the  premises  in 
question,  and  they  now  seek  to  keep  the 
benefits  his  will  gave  them  and  to  defeat  and 
disappoint  the  will  In  other  respects. 

[10]  It  Is  not  claimed  that  defendants  or 
their  parents  or  grandmother  acted  or  made 
their  election  in  ignorance  of  their  right  to 
the  property,  or  under  a  mistake  of  the  real 
nature  and  extent  of  their  respective  rights 
therein.  If  their  election  had  been  made  un- 
der such  circumstances,  it  would  not  be  bind- 
ing, and  could  be  revoked,  unless  rights  of 
third  parties  have  intervened,  which  would 
be  Interfered  with  by  the  revocation. 

In  Young  v.  Young,  51  N.  J.  Eq.  at  page 
500,  27  Atl.  634,  Vice  Chancellor  Pitney  stat- 
ed that: 

"The  authorities  seem  to  concur  in  holding 
that,  in  order  to  make  the  enforcement  of  one 


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demand,  which  Is  Inconsistent  with  another,  a 
final  and  binding  election  to  talce  that,  and  not 
the  other,  the  party  must  either  be  shown  to 
have  acted  advisedly,  with  proper  knowledge 
of  all  the  circumstances,  and  witn  a  conscious- 
ness of  the  effect  of  the  act  relied  upon,  or  the 
party  adversely  interested  must  have  so  chang- 
ed his  position  in  reliance  upon  such  action  that 
it  would  be  inequitable  to  permit  the  party  who 
has  the  choice  to  recede  &om  his  former  action." 
Cbancellor  Vroom,  In  English  v.  English, 
3  N.  J.  Eq.  609,  29  Am.  Dec.  730,  uses  this 
language: 

"What  acts  of  acceptance  or  acquiescence  are 
sufficient  to  constitute  an  election  cannot  be  des- 
ignated with  sufficient  precision  to  justify  a  gen- 
eral rule.  Each  case,  as  it  occurs,  must  be  gov- 
erned by  its  own  peculiar  circumstances.  The 
general  questions  are  whether  the  parties  act- 
]g  or  acquiescing  were  cognizant  of  their  rights, 
whether  they  intended  to  make  an  election, 
whether  they  can  restore  the  individuals  af- 
fected by  their  claim  to  the  same  situation  as  if 
the  acts  had  never  been  performed,  or  whether 
these  inquiries  are  precluded  by  lapse  of  time." 

These  statements  of  the  law  are  particu- 
larly applicable  to  the  sltnation  under  con- 
sideration. Lapse  of  time  and  the  death 
of  Mrs.  Keene  and  her  three  sons  render 
it  impossible  to  restore  the  parties  to  their 
original  position.  In  reliance  upon  the  elec- 
tion of  his  mother  and  brothers,  Joseph  made 
no  effort  to  collect  the  Indebtedness  owing 
him  from  his  father's  estate;  and,  relying 
on  their  apparent  election,  he  permitted  them 
to  divide  the  greater  part  of  the  estate  among 
themselves.  During  the  80  or  more  years 
of  his  occupancy  of  the  premises,  with  their 
consent  or  acquiescence  he  treated  the  prop- 
erty as  his  own  and  paid  the  taxes,  made  Im- 
provements thereon,  and  generally  acted  as 
and  publicly  claimed  to  be  the  owner  of  the 
property,  and  it  would  now  be  impossible  to 
have  an  accounting  of  his  expenditures  in 
order  to  reimburse  his  estate.  He,  further- 
more, in  connection  with  the  devise  of  this 
property  to  complainant,  made  substantial 
gifts  to  the  defendants  which  they  accepted, 
and  do  not  offer  to  return;  and  if  they  were 
able  and  willing  to  make  return  of  the  leg- 
acies he  gave  them,  it  cannot  be  said  that 
the  amount  thereof,  with  interest,  would  be 
BuIBclent  to  reimburse  his  estate  for  all  that 
was  due  hira. 

[1 1  ]  The  doctrine  of  election  is  one  result- 
ing In  compensation,  and  not  in  forfeiture 
(Toung  V.  Young,  supra),  and  if  it  were  pos- 
sible for  defendants  to  properly  reimburse 
and  compensate  the  estate  of  Joseph  for  all 
that  was  due  him,  a  different  construction 
might  be  put  upon  their  conduct  and  upon 
the  acts  and  conduct  of  Mrs.  Keene  and  her 
sons.  But,  as  sudi  compensation  cannot  be 
made,  prindpally  because  the  amount  re- 
quired cannot  be  ascertained  with  any  de- 
gree of  accuracy,  I  deem  it  equitable  under 
all  the  circumstances  that  defendants  should 
not  be  permitted  to  recede  from  the  former 
action  of  themselves  and  of  those  under 
whom  they  claim;  and  to  hold  that  Mrs. 
Keene  and  her  sons  exercised  their  election 


under  the  will  of  Alfred  Keene,  and  that  de- 
fendants also  exercised  their  election  under 
the  will  of  their  Uncle  Joseph.  This  con- 
clusion makes  it  unnecessary  to  pass  upon 
the  other  questions  raised  on  the  argument 

A  decree  for  complainant  wUl  therefore  be 
advised,  with  costs. 

(90  M.  J.  Law,   6S;> 
SWILLEK  et  al.  v.  HOME  INS.  CO.  OF  NEW 

YORK.    (No.  30.) 

(Court  of  Errors  and  Appeals  of  New  Jersey. 

July  18,  1917.) 

(Syllahus  by  the  Court.) 
IirsuKAiTCE    «=s»387— FiKB    Policy— Ikdobsb- 

ICENTS. 

The  indorsement  by  an  insurer  on  a  fire  in- 
surance policy  of  consent  to  change  of  owner- 
ship in  the  property  insured,  without  more,  is 
not  to  be  construed  as  an  agreement  by  the  com- 
pany to  become  liable  to  the  new  owner  for  a 
loss  occurring  after  tihe  ownership^  actually 
changed  but  before  the  consent  was  given. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  i  1025.] 

The  Chancellor,  and  Bergen,  Mintum,  Kal- 
isch.  White,  and  Williams,  JJ.,  dissenting. 

Appeal  from  Supreme  Court 

Action  by  Max  and  Abe  Swlller,  copart- 
ners, against  the  Home  Insurance  Company 
of  New  York.  Prom  a  Judgment  of  the  Su- 
preme Court  for  plaintiffs,  defendant  appeals. 
Reversed. 

Russell  B.  Watson,  of  New  Brunswick,  for 
appellant  John  P.  Kirkpatrick,  of  New 
Brunswick,  for  appellees. 

PARKER,  J.  The  suit  is  to  recover  loss 
by  fire  which  plaintiffs  claimed  to  be  covered 
by  a  policy  issued  by  the  defendant  com- 
pany. The  policy  was  Issued  in  the  names 
of  Max  Herman  and  Wolfe  Fisher,  as  their 
respective  interests  might  appear,  for  a  term 
of  one  year  from  October  8,  1912.  On  Feb- 
ruary 14th,  about  3  p.  m.,  Fisher  and  Giott- 
lleb  delivered  a  deed  conveying  the  property 
to  the  two  SwIUers,  the  present  plaintiffs, 
who  also  received  the  written  policy,  and 
about  4  p.  m.  of  the  same  day  they  gave  it 
to  their  insurance  broker,  named  Levine, 
with  directions  to  have  the  ownership  trans- 
ferred to  their  names.  Levine  was  not  the 
agent  of  the  company.  That  agent  was  a 
corporation  named  Nellson  T.  Parker,  Ina 
Levine  did  not  go  to  Parker  for  an  indorse- 
ment of  change  of  interest  until  the  next 
morning,  when  the  indorsement  was  made. 
In  the  meantime  the  fire  had  occurred.  The 
stipulation  of  facts  shows  that,  when  Levine 
presented  the  policy  for  indorsement  of  new 
ownership,  neither  Parker,  Inc.,  nor  tbe 
company  knew  of  the  Are  having  taken  place, 
and  Levine  did  not  Inform  Parker  of  it 

On  this  state  of  facts,  the  trial  Judge,  sit- 
ting without  Jury,  held  that,  although  in 
his  estimation  the  policy  was  not  originally 
enforceable  because  Fisher  had  no  interest 


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8WILL.EB  V.  HOME  INS.  00. 


517 


In  the  property  at  the  time  of  Its  issue  or 
thereafter,  yet  plaintiffs  were  entitled  to  re- 
cover, on  the  theory,  as  he  stated  It,  that  the 
question  was  not  one  of  waiver  of  the  In- 
validity of  the  original  policy,  but  of  prac- 
tically new  insurancei  and  that  instead  of 
writing  a  new  policy  for  the  remaining  por- 
tion of  the  policy  (term?)  the  company  ex- 
tended the  old  insurance  to  the  new  owners. 

We  think  that  this  was  error.  It  may  be 
conceded  that  by  indorsing  the  new  owner- 
ship on  a  policy  which  the  company  could 
have  voided  for  misstatement  of  original 
ownership,  or  for  transfer  of  ownership  to 
the  SwlUers  without  such  indorsement,  the 
company  entered  into  a  fresh  contract  with 
said  new  owners  to  insure  them  for  the  re- 
mainder of  the  term,  and  that  the  premium 
originally  paid  was  a  valid  consideration 
therefor.  But  when  did  the  remainder  of  the 
term  begin?  In  order  to  uphold  the  decision 
below,  it  is  necessary  to  say  that  it  began 
when  the  deed  to  the  SwlUers  was  delivered. 
Doubtless  the  company  could  have  so  agreed, 
but  the  question  is:  What  agreement  did  it 
actually  make  by  the  indorsement?  The 
only  reasonable  answer,  as  it  appears  to  us, 
is  that  in  the  absence  of  some  special  stipula- 
tion the  insurer's  consent  to  diange  of  ovra- 
ership  must  be  construed  as  operating  to 
protect  the  new  owner  from  the  time  it  is 
given,  and  that  time  is,  ordinarily,  when  it 
is  affixed  by  the  company  or  its  authorized 
agent,  and  that  it  does  not  relate  back  to  any 
prior  time  when  the  ownership  in  fact  chang- 
ed; or,  in  other  words,  that  the  Insurer 
does  not,  by  assenting  to  the  change  of  own- 
ership, assume  the  liability  for  a  loss  occui^ 
ring  before  that  consent  was  given,  of  which 
it  knew  nothing,  and  for  which,  as  the  policy 
stood  without  its  consent,  it  was  not  liable. 

The  case  Is  not  within  the  rule  in  Hal- 
lock  V.  Insurance  Co.,  26  N.  J.  Law,  268,  27 
N.  J.  Law,  646,  72  Am.  Dea  379,  for  in  that 
case  the  application  was  made  for  Insurance 
and  premium  tendered  to  the  agent  before 
the  fire  occurred  for  a  term  to  begin  at  the 
date  of  the  application,  and  the  policy  was  so 
written.  There  was  consequently  in  that 
case  no  room  for  argument  as  to  what  the 
conapany  agreed  to,  and  the  main  question 
was  whether  It  was  relieved  from  the  agree- 
ment because  the  flie  bad  occurred  without 
its  knowledge  before  it  had  formally  entered 
Into  it 

One  of  the  defenses  set  up  in  the  plead- 
ings, and  not  contradicted  as  to  the  facts, 
was  that  the  i>olicy  contained '  a  provision 
that,  unless  otherwise  provided  by  agree- 
ment Indorsed  thereon  or  added  thereto,  it 
should  be  void  if  any  change,  other  than 
by  the  death  of  the  insured,  take  place  in  the 
interest,  title,  or  possession  of  the  subject 
of  insurance,  etc.,  and  that  by  the  conveyance 
to  tile  Swillers  such  change  took  place  and 
vitiated  the  policy.  On  the  trial  defendant 
requested  the  court  to  And  that  the  forego- 


ing clause  was  a  warranty,  of  which  tber*. 
had  been  a  breach  by  the  conveyance  to  the 
Swillers  which  had  not  been  waived  by  an 
Indorsement  on  the  policy  or  addition  there- 
to; and  further  that  the  indorsement  in 
question,  placed  on  the  policy  after  the  Are, 
did  not  constitute  such  waiver  because  the 
company  had  no  knowledge  or  notice  of  such 
Are.  These  requests  were  either  overruled 
or  confessed  and  avoided  by  the '  decision 
placing  the  Judgment  upon  the  ground,  not 
of  waiver,  but  of  new  insurance.  As  the 
case  stands  before  us,  defendant  is  entitled 
to  attack  both  the  refusals  of  the  court  and 
its  specific  findings  of  law  Injurious  to  de- 
fendant. It  is  not  necessary  to  pass  upon 
the  question  whether,  by  the  language  of  the 
policy  insuring  Herman  and  Fisher  as  their 
respective  interests  appeared,  the  policy, 
though  void  as  to  Fisher,  would  be  ^ood  as  to 
Herman.  It  might  even  be  conceded  for  the 
sake  of  argument  tliat  they  might  have  re- 
covered for  the  loss.  The  simple  question  be- 
fore us  Is:  Was  the  company  under  a  con- 
tractual liability  to  the  Swillers  for  a  loss 
after  title  vested  in  them,  and  before  the 
indorsement  of  change  of  ownership? 

The  trial  court  held  that  It  had  agreed  to 
such  liability  by  its  Indorsement  made  after 
the  Are  and  without  knowledge  thereof.  This 
we  consider  erroneous,  for  reasons  already 
stated;  and  for  this  error  the  Judgment  must 
be  reversed. 

The  CHANCBLLOE,  and  BERGEN,  MIN- 
TURN,  KALISCH,  WHITE,  and  WILLIAMS, 
JJ.,  dissent. 

BERGEN,  J.  (dissenting).  I  am  unable  to 
agree  with  the  majority  of  the  court  that 
the  refusal  of  the  trial  court  to  And,  as  re- 
quested, ttiat  the  indorsement  entered  on  the 
policy  on  February  15,  1913,  which  reads  as 
follows: 

"Interest  in  this  policy  is  hereby  vested  in 
Max  and  Abe  Swiller,  trading  under  the  name 
of  Swiller  Bros,  as  owner  instead  of  as  hereto- 
fore. Loss  if  any,  first  payable  as  before.  Sec^ 
ond  mortgagee  eliminated" 

— was  not  a  waiver  of  previous  breaches  of 
warranty  as  to  ownership,  called  to  the  at- 
tention of  the  court,  because  the  company  had 
no  notice  of  the  facts  alleged  to  avoid  the 
insurance  and  forfeit  the  policy,  was  errone- 
ous. 

This  request  is  based  upon  the  assumpticm 
that  the  policy,  before  it  was  assigned  to  the 
plaintifTs  and  the  indorsement  made  thereon, 
was  absolutely  void  because  when  it  was  is- 
sued to  the  previous  owners,  Max  Herman 
and  Wolfe  Fisher,  the  latter  had  conveyed 
his  undivided  one-half  Interest  to  Nathan 
Gottlieb.  The  policy  of  Insurance  is  not 
printed  In  the  record,  nor  was  It  submitted 
to  the  court;  the  case  being  tried  and  de- 
termined upon  facts  stipulated,  so  we  have  no 
knowledge  of  the  terms  of  the  policy,  relat- 
ing to  the  character  of  the  Interests  insured, 


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101  ATLANTIC  REPORTER 


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except  as  they  appear  In  the  stipulations, 
the  first  of  which  is  that  on  October  8,  1912, 
the  defendant  Issued  a  Standard  fire  Insur- 
ance policy  "to  Max  Herman  and  Wolfe  BHsh- 
er,  as  their  respective  Interests  appear,  for 
the  term  of  one  year  from  the  8th  day  of 
October,  1912,  at  noon,  to  the  8th  day  of 
October,  1913,  at  noon."  As  I  read  this 
policy,  It  Is  an  Insurance  against  loss  of  the 
respective  Interests  of  each,  and  not  of  their 
joint  Interest,  and  there  is  no  reason  why 
the  Insurance  company  could  not  lawfully 
contract,  as  they  did,  to  Insure  either  against 
loss  so  far  as  their  respective  interests  ap- 
peared, and  if  so  each  had  an  undivided  in- 
terest insured.  If  EMsher  bad  no  interest, 
aU  the  company  insured  was  the  Interest  of 
Herman,  which  Interest  remained  insured  un- 
til lie  conveyed  it  to  the  plaintiffs,  and  so 
long  as  be  retained  that  interest  his  mort- 
gagee, Aagusta  McGlnnls,  one  of  the  plain- 
tiffs,  was  protected  to  the  extent  of  his  in- 
surable interest  by  reason  of  the  Indorsement 
making  any  loss  tlrst  payable  to  her  as  mort- 
gagee. 

None  of  the  conditions  contained  In  the 
policy  upon  which  the  breaches  of  warranty 
appearing  In  the  requests  to  charge  or  find 
appear  in  this  record;  but,  assuming  that  the 
policy  contained  these  warranties,  there  was 
no  breach  so  far  as  the  interest  of  Herman  Is 
concerned,  because  hia  respective  interest  was 
always  in  existence  and  continued  to  be  un- 
til he  conveyed  the  property  niid  handed  over 
the  policy  to  the  new  owner;  for  "respective 
Interests"  means  such  Interests  as  each  of  the 
insured  had.  It  is  not  a  case  where  tenants 
in  common  are  Jointly  Insured  where  con- 
veyance by  one  would  avoid  the  policy,  but 
an  insurance  of  the  respective  interest  of 
each  as  such  interest  might  'appear,  and 
therefore  there  was  no  breach  of  warranty 
so  far  as  Herman  was  concerned  which  call- 
e<l  for  a  compllan(«  with  the  sixth  re- 
quest that  the  indorsement  did  not  constitute 
a  waiver  of  the  breaches  of  warranties,  be- 
cause one  of  the  parties  held  a  valid  in- 
surance to  the  extent  of  his  interest.  The  ef- 
fect of  the  new  contract  created  by  the  in- 
dorsement on  the  policy  after  the  conveyance 
by  Herman  and  after  the  loss  Is  not  raised 
by  any  request  to  charge  and  is  not  to  be 
considered  because  all  of  the  requests  are 
based  upon  the  theory  that  the  entire  policy 
was  void  from  its  inception  because  Fisher 
was  not  one  of  the  owners  when  the  policy 
was  issued,  and  therefore  the  very  interest- 
ing question,  bow  much  of  the  period  of  the 
time  stated  in  the  policy  it  was  to  cover 
inures  to  the  assignee  when  the  entire  pol- 
icy is  assigned  and  consented  to  by  the  in- 
surance company,  is  not  before  us. 

If  it  is  a  new  contract  based  upon  all  the 
terms  and  conditions  of  the  policy,  as  seems 
to  be  the  settled  law,  it  may  be  that  the 
insurance  company,  by  the  substitution  of  a 


new  owner  for  the  old  one,  makes  the  policy 
good  to  the  new  owner  for  the  entire  period, 
which  would  be  nothing  more  than  an  agree- 
ment to  insure  the  new  owner  for  the  en- 
tire period  covered  by  the  policy,  or  at  least 
from  the  time  it  was  assigned  to  him,  and 
that  the  company  has  a  right  to  antedate  Its 
policy  was  settled  in  Hallock  v.  Insurance 
Ck>.,  26  N.  J.  Law,  268.  But  no  such  ques- 
tion is  raised  in  this  case,  for  all  of  the  re- 
quests, the  refusal  to  comply  with  which  is 
the  only  ground  of  error  alleged,  are  based 
upon  the  claim  that,  the  policy  being  original- 
ly void,  the  indorsement  to  the  new  owner 
was  not  a  waiver  of  alleged  breaches,  be- 
cause the  policy  itself  was  void,  and  if,  as 
I  think,  the  policy  was  not  void  because  it 
was  an  insurance  of  respective  interests,  one 
of  which  was  Insurable,  then  the  requests 
were  l>ased  upon  a  false  assumption  of  law 
and  were  properly  refused. 
The  Judgment  should  be  affirmed. 


(W  N.  J.  lAW,  7») 
SPROTTE  V.  DELAWARE,  I*  &  W.  R.  00. 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18, 1917.) 

L  Carriebs  «=>52(2)— Bux  of  Ladino— Coir- 

nmoN  OF  Goooa 
In  an  action  ajrainst  a  carrier  for  damages 
to  Koods  by  breakaKe,  acknowledgment  in  bill  of 
lading  that  the  goods  mentioned  therein  were  in 
apparent  good  order,  is  sufficient  prima  facie 
proof  of  that  fact,  where  their  condition  could  be 
ascertained  by  mere  inspection,  and  the  clansa, 
"contents  and  condition  of  contents  of  packages 
unknown,"  is  not  applicable. 

[Ed.    Note.— For   other   cases,   see   Carriers, 
Cent.  Dig.  §S  109,  152-161.] 
2.  Casbiebs  <s=>52(2)— Bill  of  Lading— Cor- 

DinoN  or  Goods. 
In  an  action  against  a  carrier  for  damages 
to  goods,  where  claim  is  for  scratches  to  furni- 
ture, whose  condition  at  time  bill  of  lading  was 
issued  was  concealed,  other  proof  of  good  order 
than  mere  acknowledgment  in  bill  of  lading  is 
necessary. 

[Ed.  Note.— -For  other  cases,  see  Carriers, 
Cent.  Dig.  ${  109,  152-161.] 

Appeal  from  Supreme  Court 

Action  by  George  Sprotte  against  the  Dela- 
ware, Lackawanna  &  Western  Railway  Com- 
pany. BYom  a  Judgment  of  the  Supreme 
Court,  affirming  a  Judgment  of  the  district 
court  for  plaintiff,  defendant  appeals.  Af- 
firmed. 

The  per  curiam  opinion  of  the  Supreme 
Court  is  as  follows: 

The  plaintiff  employed  a  shipping  company  in 
Los  Angeles  to  ship  a  carload  of  furniture  from 
that  point  to  Dover,  N.  J.  When  the  goods  ar- 
rived in  New  York,  they  were  forward^  by  the 
shipping  company  to  Dover  over  the  defend- 
ant's line,  and  some  of  the  goods  were  damaged 
when  they  arrived. 

The  defendant  issued  a  waybill  in  which  it 
was  stated  that  the  property  was  in  apparent 

§ood  order,  except  as  noted  (contents  and  con- 
ition  of  packages  unknown).  The  list  contain- 
ed specific  items,  some  of  which  were  boxes. 
There  was  a  stipulation  that,  if  defendant  'was 
found  liable,  the  damages  were  to  be  asseecied 


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BBERIiIKO  T.  MUTILLOD 


619 


■t  $169.05,  and  this  sum  the  district  oourt 
found.  Under  the  record  all  we  have  to  deal 
with  is  the  liability  of  the  defendant  between 
New  Torlc  and  Dover.  The  defendant  claims 
that  the  court  should  have  granted  its  motions 
for  a  nonsuit,  or  directed  a  verdict  for  the  de- 
fendant, because  there  was  no  proof  that  the 
goods  were  damaged  while  in  defendant's  posses- 
sion, beyond  that  the  waybill  certified  that  they 
were  received  in  apparent  good  order  in  N£w 
Tork,  and  the  fact  that  they  were  received  in  a 
iamaged  condition  at  Dover. 

Such  a  recital  in  a  bill  of  lading  is  prima  facie 
evidence  of  the  fact  that  the  goods  were  in  ap- 
parently good  condition  when  received,  and, 
while  the  common  carrier  may  show  the  con- 
trary, the  burden  is  on  it.  No  attempt  was 
made  in  this  case  to  show  that  the  goods  were 
not  in  good  condition  when  delivered  to  the  de- 
fendant, and  where  a  carrier  receives  freight  in 
good  condition,  and  it  is  found  in  its  possession 
damaged  at  point  of  destination,  negligence  wiU 
be  presumed,  unless  removed  by  explanation. 

The  next  point  is  that  it  was  error  to  admit 
the  contract  with  the  Los  Angeles  Moving  Com- 
pany, the  initial  shipping  company.  This  did 
not  injure  the  defendant,  and,  if  error,  was 
harmless. 

The  next  objection  is  refusal  to  allow  defend- 
ant's train  conductor  to  testify  that  nothing  un- 
usual happened  to  the  car  between  New  York 
and  Dover.  This  was  immaterial,  for,  if  he  so 
testified,  which  is  the  best  defendant  could  ex- 
pect, it  would  prove  nothing,  for  the  goods  were 
in  a  closed  car,  and  it  was  not  pretended  that 
anything  happened  to  the  car. 

As  we  find  no  error  in  this  record,  the  judg- 
ment will  be  affirmed,  vrith  costs. 

Frederic  B.  Scott,  of  New  Tork  aty,  for 
appellant.  King  &  Vogt,  of  Morrlstown,  for 
appellee. 

SWAYZB,  J.  [1,  2]  The  facts  are  stated  In 
the  menjorandtim  of  the  Supreme  Court  We 
agree  that  the  bill  of  lading  was  sufficient 
prima  facie  proof  that  the  goods  mentioned 
therein  were  In  apparent  good  order,  so  far  as 
their  good  order  could  be  apparent.  Ontils 
applies  to  the  greater  part  of  the  goods  and  of 
the  damages  claimed.  Most  of  the  goods  were 
of  such  a  character  that  it  could  be  ascer- 
tained by  mere  Inspection  whether  they  were 
In  sound  condition,  and  most  of  the  damages 
were  due  to  breakage.  To  such  goods,  where 
the  claim  is  for  obvious  injury,  the  clause 
"contents  and  condition  of  contents  of  pack- 
ages unknown"  is  not  applicable.  Where 
the  claim  was  for  scratches  and  similar  In- 
juries to  furniture,  and  the  condition  at  the 
time  the  bill  of  lading  was  issued  was  con- 
cealed by  burlap  or  other  covering,  there 
could  not  be  good  order  apparent  in  that 
respect,  and  proof  other  than  the  mere  ac- 
knowledgment In  the  bill  of  lading  would  be 
necessary.  This  difficulty  Is  particularly  ap- 
plicable In  this  case  to  the  piano,  which  was 
boxed.  We  should  have  difficulty  with  the 
case,  if  the  distinction  had  been  made  at  the 
trial,  and  the  question  properly  raised.  This 
was  not  done.  The  plaintiff  relied  on  the 
bill  of  lading,  as  if  Its  terms  were  applicable 
alike  to  all  the  articles  named.  The  defend- 
ant rdied  on  the  clause  as  to  contents  and 
condition  of  contents  of  packages,  as  if  all 


I  the  articles  had  been  so  {Kicked  as  to  conceal 
their  real  nature.  The  amount  of  damages 
was  stipulated.  The  error  was  the  usual  one 
of  attempting  to  apply  general  expressions, 
without  discriminating  to  particular  cases. 
We  have  nothing  to  add  to  what  the  Supreme 
Court  said  as  to  the  rulings  on  questions  of 
evidence. 

We  find  no  error  of  law  pointed  out  in  the 
record,  and  the  judgment  must  be  affirmed, 
with  costa 


(90  N.  J.  UtW,  4T8) 

EBERUNO  y.  MUTIIXOD  (two  eases). 

(Court  of  Errors  and  Appeals  of  New  Jersey. 
July  19,  1917.) 

(Byttabut  ly  the  Govrt.) 

1.  ANniAI.B  ©S'GS— DOQS— LlABIUTT  roB  Ik- 
JUBY. 

The  infant  plaintiff,  a  boy  of  16  years  old, 
testified  that  he  had  been  in  the  business  of  d»- 
livering  newspapers  on  defendant's  estate  to 
him  and  to  his  tenants  for  about  a  year,  and 
that  on  the  day  he  was  bitten  by  defendant's 
dog  he  was  going  across  defendant's  lawn  on  the 
regular  route  he  had  always  taken,  having  en- 
tered through  a  gate  which  was  open,  lleld 
that,  even  if  he  were  a  trespasser  on  defendant's 
premises,  he  was  entitled  to  recover  damages  for 
the  injury  resulting  from  the  biting  by  the 
dog,  nnder  the  facts  in  this  case,  if  it  were  own- 
ed by  the  defendant  (which  was  admitted),  and 
if  defendant  knew  that  the  dog  had  previously 
bitten  other  people,  of  which  there  was  evidence, 
and  unless  the  plaintiff  was  guilty  of  contribu- 
tory negligence,  aside  from  the  mere  fact  of 
trespassing,  and  he  was  not,  according  to  Us 
own  testimony. 

[Ed.  Note.— For  other  cases,  see  Animals. 
Cent.  Dig.  §§  225,  226.] 

2.  AiTiiiALs  €=»71 — Acnoits— Defenses. 

The  mere  fact  of  trespassing  upon  the 
grounds  of  another  is  not,  in  and  of  itself,  con- 
tributory negligence,  which  will  defeat  an  ac- 
tion to  recover  damages  for  injuries  inflicted  by 
a  vicious  animal  belonging  to  defendant  and  al- 
lowed to  be  at  large  upon  the  premises. 

[Ed.  Note. — For  other  cases,  see  Animals. 
Cent.  Dig.  §§  238-241.] 

3.  Animals  <g=>74(8)  —  Pbbsonal  Injuries  — 
JrRY  Question. 

The  question  whether  a  person  entering  up- 
on the  grounds  of  another  without  invitation  or 
license,  and  then  and  there  injured  by  an  at- 
tack by  a  vicious  animal  of  the  owner,  allowed 
to  be  at  large  upon  the  premises,  exercises  the 
degree  of  care  which  reasonable  and  prudent 
persons  would  use  under  like  circumstances,  ia 
a  jury  question. 

[Ed.  Note.— For  other  cases,  see  Animals, 
Cent.  Dig.  §  273.] 

Appeal  from  Circuit  Court,  Hudson 
County. 

Actions  by  Emil  Eberllng,  by  Rudolph 
Eberllng,  his  next  friend,  and  by  Budolph 
Eberllng,  against  Marlus  Mutlllod.  From 
judgments  for  the  several  plaintiffs,  defend- 
ant appeals.    Affirmed. 

Frederick  K.  Hopkins,  of  Hoboken,  for  ap- 
pellant. Harlan  Besson,  of  Hoboken,  for  op- 
pellees. 


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WALKER,  Ch.  These  eases  arose  out  of 
Injuries  resulting  to  a  boy  from  beliig  bitten 
by  a  dog.  They  were  tried  together  before 
a  Jury,  and  were  argued  together  here.  In 
the  first  action,  the  plaintiff,  Emll  Eberllng, 
a  minor,  sued  by  his  father  as  next  friend, 
and  in  the  other  action  the  father  sued  for 
himself.  In  March,  1915,  the  plaintiff,  Emll 
Eberllng,  was  employed  In  delivering  news- 
papers, afternoons.  He  was  a  boy  16  years 
old.  Two  verdicts  were  rendered,  one  for  the 
boy  of  $400,  and  one  for  his  father  for  $23.50, 
against  the  defendant,  Marlus  MutlUod,  la 
the  Hudson  county  circuit  court,  by  a  Jury, 
and  Judgments  were  thereupon  entered.  The 
defendant  has  appealed  to  this  court 

The  plaintiff,  Emll  Eberllng,  was  a  news- 
boy living  in  the  borough  of  Secaucus  with 
his  father,  from  whom  he  had  not  been  eman- 
cipated. The  defendant,  Marlus  MutlUod, 
was  a  florist,  owning  an  estate  In  the  bor- 
ough of  Secaucus,  Hudson  county.  He  was 
the  owner  of  a  large  St.  Bernard  dc«,  which 
he  permitted  to  run  at  large  on  his  proper- 
ty. It  was  established  that  bis  dog  bad  at- 
tacked a  man  named  Fred  Montigel,  when 
the  defendant,  its  owner,  was  present,  some 
time  before,  and  ruined  a  pair  of  trousers, 
for  which  the  defendant  paid.  There  was  al- 
so testimony  that  the  dog  had  bitten  another 
man,  who  had  told  the  owner  of  it  It  ap- 
peared from  the  testimony  that  it  was  the 
custom  of  the  newsboy  plaintiff  to  enter  the 
gate  in  the  northern  part  of  Mr.  MuUllod's 
property  and  cross  the  lawn  to  one  of  the 
houses  situate  on  his  estate.  On  March  13, 
1915,  while  delivering  papers  to  Mr.  Mutll- 
lod's  tenants,  the  boy  was  attacked  by  the 
defendant's  dog,  which  was  roaming  at  large 
upon  the  latter's  estate.  The  dog  bit  the 
boy  several  times  in  the  hip.  The  bites  were 
severe,  and  he  required  the  care  of  a  doctor 
for  some  time. 

The  defendant's  land  was  only  partially 
inclosed  by  a  fence,  in  which  there  were 
large  gates,  which  were  open  most  of  the 
time,  and  in  that  situation  the  defendant's 
dog  was  permitted  by  him  to  run  at  large 
on  the  premises.  The  boy  entered  through  an 
open  gate  at  the  time  he  was  bitten.  Defend' 
ant's  coun.sel  moved  to  nonsuit  at  the  end  of 
plaintiff's  case,  and  for  a  direction  of  a  ver- 
dict at  the  close  of  the  testimony,  both  of 
which  motions  were  denied,  and  the  cases 
were  submitted  to  the  Jury,  who  found  for 
the  plaintiffs,  as  stated.  These  are  the  only 
grounds  of  appeal. 

It  is  perfectly  obvious  that  the  defendant 
appellant  is  not  entitled  to  a  reversal  of  the 
Judgments.  The  reason  is  that  there  was  evi- 
dence to  support  them,  and  this  court  will 
not  review  the  findings  of  fact  In  a  court 
below,  beyond  ascertaining  that  there  was 
evidence  to  support  such  findings.  Lamed  v. 
MacCarthy,  85  N.  J.  Law,  589,  90  Atl.  272. 
The  plaintiffs,  under  the  facts  in  this  case, 
were  entitled  to  go  to  a  Jury  if  they  showed 
(1)  that  tbe  defendant  owned  the  dog;    (2) 


if  the  boy  was  bitten  by  the  dog  and  injured; 
(3)  if  the  defendant  knew  that  the  dog  bad 
previously  bitten  other  people.  There  was 
testimony  establishing  defendant's  liability 
and  tbe  plaintiff's  right  to  recover  on  all  of 
these  grounds.  Ownership  of  the  dog  was 
admitted  by  defendant 

Counsel  for  appellant  relies  upon  De  Gray 
V.  Murray,  69  N.  J.  Law,  458,  55  Atl.  23T; 
but  In  our  Judgment  the  doctrine  in  that  case 
is  not  applicable  to  tbe  one  at  bar.  It  was 
there  held  that  the  owner  of  a  vicious  dog 
Will  not  be  liable  for  injury  Inflicted  by  It 
tf  it  escapes  from  control,  where  the  owner 
has  exercised  a  degree  of  care  commensurate 
with  the  danger  to  others  which  would  fol- 
low from  such  an  escape.  That  is  not  this 
case.  The  owner  here  failed  to  control  the 
dog.  He  appears  to  have  regarded  it  or  at 
least  to  have  treated  it  as  being  docile,  and 
not  vicious. 

[1-3]  The  api>eUant  contends  that  tbe  in- 
fant plaintiff  was  not  upon  his  premises  by 
invitation  or  license,  but  as  a  trespasser,  and 
that  therefore  he  is  not  liable  to  respond  in 
damages  for  the  injury  to  the  boy  inflicted 
by  the  biting  by  the  dog.  The  doctrine  of 
invitation  and  license  need  not  be  considered, 
for  recovery  was  properly  had  even  if  the 
boy  were  a  trespasser.  The  doctrine  is  that 
in  an  action  for  injuries  caused  by  an  at- 
tack by  a  vicious  animal  kept  by  a  person  on 
his  premises,  the  mere  fact  that  the  injur- 
ed person  was  a  trespasser  at  the  time  will 
not,  as  matter  of  law,  defeat  tbe  action.  A 
leading  case  on  this  subject  is  that  of  Marble 
V.  Ross,  124  Mass.  44.  There  was  evidence 
tending  to  show  that  the  plaintiffs'  intestate 
received  his  injuries  in  the  defendant's  pas- 
ture, where  be  was  at  the  time  a  trespasser, 
and  that  when  he  went  upon  the  premises, 
he  knew  there  was  a  stag  there,  and  under- 
stood that  it  was  vicious.  It  was  not  con- 
tended that  the  defendant  placed  tbe  stag  in 
the  pasture  for  the  purpose  of  keeping  off 
trespassers,  or  of  having  the  stag  frighten  or 
Injure  any  one.    Morton,  J.,  said,  at  page  48: 

"In  the  ease  at  bar,  it  appeared  that  the  de- 
fendant knowingly  kept  a  vicious  and  daQgei^ 
CUB  stag  in  a  large  pasture,  and  the  plaintiffs' 
intestate,  while  in  the  pasture,  was  attached 
Olid  injured  by  it.  Tbe  defendant  requested  the 
court  to  rule  Uiat,  if  the  plaintiffs'  intestate  was 
a  trespasser  in  the  pasture,  they  could  not  re- 
cover. We  are  of  opinion  that  the  court  right- 
ly refused  this  ruling.  The  mere  fact  that  the 
intestate  was  upon  tbe  defendant's  land  without 
his  consent  would  not  defeat  the  right  of  ac- 
tion. _  The  unlawful  character  of  his  act  did  not 
contribute  to  his  injury  or  affect  the  defcndant'a 
negligence.  •  •  •  The  fact  therefore,  that 
the  intestate  was  committing  an  unlawful  act 
at  the  time  of  his  injury,  would  not  prevent  bis 
recovery.  Nor  does  the  fact  that  this  unlawful 
act  was  a  trespass  upon  the  defendant's  land 
necessarily  have  this  effect.  It  is  true  that,  as 
a  general  rule,  a  trespasser  who  is  injured  by 
a  pit  or  dangerous  place  upon  the  land  of  an- 
other, exca%'ated  or  permitted  for  a  lawful  pur- 
pose, cannot  recover  damages  therefor,  because 
the  owner  of  the  land  owes  no  duty  to  him,  and 
therefore  is  not  negligent  as  to  him;  but  it  is 
dear  that  the  owner  of  land  cannot  wantonly 


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ROWLAND  V.  NEW  YORK  STABLE  MANURE  CO. 


621 


injure  a  trespasser.  If  he  does,  he  is  liable  chil- 
ly as  well  as  criminally.  The  law  holds  the 
keeper  of  an  animal  linown  to  be  dangerous, 
which  injures  another,  to  the  same  degree  of 
responsibility  as  in  cases  of  wanton  injury,  and 
the  fact  that  the  person  injured  is  trespassing 
does  not  exonerate  such  owner  from  the  conse- 
quences of  his  negligence." 

And  at  page  49: 

"If  Marble  voluntarily  and  negligently  put 
himself  in  a  position  which  was  likely  to  result 
in  injury,  and  the  injury  happened,  his  negli- 
gence is  a  contributing  cause,  and  he  could  not 
recover.  The  fact  of  his  kiDowledge  that  the 
stag  was  in  the  pasture  and  was  dangerous  would 
be  important  evidence  tending  to  show  negli- 
gence; but  we  cannot  say,  as  matter  of  law,  that 
it  would  conclusively  prove  it.  This  might  de- 
pend upon  the  size  of  the  pasture,  the  position 
of  the  stag  in  it,  and  other  circumstances  which 
are  proper  for  the  consideration  of  the  jury. 
The  test  is  whether  the  plaintiffs'  intestate,  m 
entering  the  pasture,  exercised  that  degree  of 
care  which  reasonable  and  prudent  men  use  un- 
der like  circumstances.  Tliis  is  a  question  of 
fact  for  the  jury  upon  all  the  evidence." 

We  think  that  Marble  t.  Ross  well  states 
the  law  of  the  case  under  consideration.  The 
boy  had  gone  on  defendant's  estate  every 
day  for  a  year  to  deliver  his  pwpers,  and  at 
the  time  he  was  attacked  by  the  dog  he  was 
on  the  regular  route  he  had  always  taken. 
He  was  not  guilty  of  any  contributory  negli- 
gence. If  he  is  to  be  believed  when  he  says 
that  he  did  nothing  to  ezdte  the  dog,  which 
be  did  not  see  until  it  was  about  five  feet 
away  from  him.  He  had  only  seen  the  dog 
once  before,  and,  although  some  one  had  told 
him  that  it  would  bite,  the  tenants  said  he 
should  not  be  scared,  because  it  would  not 
bite  or  do  anything  like  that. 

In  no  aspect  of  the  cases  at  bar  can  it  be 
said  as  matter  of  law  that  the  defendant  was 
not  liable.  The  cases  were  properly  submit- 
ted to  the  Jury,  and  the  Judgments  entered 
upon  the  yerdicts  must  be  affirmed,  with 
costs. 


(88  N.  J.  Bq.  168) 

BOWLAND  et  al.  ▼.  NEW  XORK  STABLE 
MANURE  OO.    (No.  42/192.) 

(Court  of  Chanceiy  of  New  Jersey.    July  12, 
1917.) 

1.  NinsAKOB  «=33(3)  —  Public  NmsANOE  — 
OmrNBiTX  Odobs— Manube  Piles. 

Storing  of  manure  gathered  from  city  sta- 
bles in  New  York  and  other  cities  from  abont 
May  lit  until  the  latter  part  of  September,  dur- 
ing which  time  approximately  40,000  tons  are 
accumulated,  emitting  foul,  Inauseating,  and 
sickening  odors,  corrupting  the  air,  and  pene- 
trating the  liomes  of  complainants,  living  with- 
in a  radius  of  a  mile,  is  a  nuisance. 

[EJd.   Note.— For    other  cases,   see   Nuisance, 
(3ent.  Dig.  gS  2&-25.] 

2.  X<4)T7ITT   9=>148(2)-^OINSEB  OF  CAUSES   Or 

Action— MuLTiFABionsNEBS. 

In  a  bill  to  abate  a  nuisance,  doe  to  the 
maintenance  of  manure  piles,  the  causes  of  ac- 
tion for  injury  by  defiling  tiie  air  and  by  pol- 
lution of  water  were  properly  joined  under 
Act  March  30,  1915  (P.  L.  p.  184)  §g  24,  25, 
allowing  the  joinder  of  separate  causes  of  ac-, 


tions  arising  oat  of  the  same  transaction,  or  se- 
ries of  transactions. 

[Ed.  Note.— For  other  cases,  see  E^luity,  Cent. 
Dig.  §;  345,  354-357.] 

3.  Nuisance  $=>21— Abatement— Conditions 
Precedent. 

Complainants  could  maintain  a  bill  to  abate 
a  nuisance  created  by  storing  manure  in  large 
quantities,  without  showing  that  application  had 
been  made  to  tlie  local  board  of  health  to  take 
proceedings,  and  that  the  board  had  without 
just  cause  refused  to  do  so. 

[Ed.  Note.— For  other  cases,  see  Nnisanesk 
Cent  Dig.  H  55-59.] 

4.  Nuisance  ^s»2$>— Laches— Evidence. 

That  complainants  for  eight  years  endared 
the  stench  from  defendant's  manure  stora^ 
plant  would  not  constitute  laches,  barring  their 
bill;  every  day's  continuance  being  a  new  nui- 
sance. 

[Ed.  Note.— For  other  cases,  see  Nuisance, 
Cent.  Dig.  {  68.] 

5.  Nuisance  <g=>23(3)— E<jurrT— Jubibdiotion 
.  IN  PiBST  Instance. 

Where  the  damage  is  substantial,  a  court  of 
equity  will  in  the  first  instance  determine  the 
question  of  nuisance,  and  grant  relief. 

[Ed.  Note.— For  other  cases,  see  Nuisance, 
Cent.  Dig.  {  58.] 

6.  Nuisance  (S925(1)  —  Acquiescence  —  Els- 

lOPPEL. 

Defendant's  outlay  in  purchasing  and  pre- 
paring its  land  for  storing  manure  was  without 
the  implied  consent  of  complainants,  and  does 
not  estop  them  from  maintaining  this  bill. 

[Ed.  Note. — For  other  cases,  see  Nuisance. 
Cent.  Dig.  {§  60-63.]  "««.«», 

7.  Nuisance  <8=»25(2)— Injunction— Result- 
in  o  Dauaoe  to  Defendant. 

Where  a  nuisance  is  clearly  established, 
and  it  appears  that  it  is  causing  material  ir- 
reparable injury  to  complainants,  they  are  enti- 
tled to  injunction,  irrespective  of  resulting  dam- 
age to  defendant 

[Ed.  Note.— For  other  cases,  see  Nuisance, 
Cent.  Dig.  {  6.] 

Bill  betweoi  William  J.  Rowland  and  oth- 
ers and  the  New  York  Stable  Manure  C!om- 
pany  to  abate  a  nuisance.    Granted. 

John  P.  Kirkpatrlck  and  Russell  B.  Wat- 
son, both  of  New  Brunswick,  for  complain- 
ants. Edgar  W.  Hunt,  of  Lambertville,  and 
Spencer  Weart  and  Edward  H.  Hoos,  both  of 
Jersey  City,  for  defendant 

BACKES,  V.  C.  This  Is  a  bill  to  abate  a 
nuisance  to  habitations,  caused  by  offensive 
odors  arising  from  manure  pUes.  The  de- 
fendant's business  is  that  of  gathering  horse 
manure  from  stables  in  New  York,  Brooklyn, 
and  Jersey  City,  and  shipping  It  direct  to 
farmers  and  dealers  in  fertilizers,  except  dur- 
ing the  crop-growing  season,  when  the  collec- 
tions are  stored  at  the  defendant's  plant  on 
the  Rocky  Hill  branch  of  the  Pennsylvania 
Railroad  near  Monmouth  Junction.  Storing 
begins  about  May  1st,  and  continues  untU  the 
latter  part  of  September,  when  reshipments 
commence,  lasting  until  the  end  of  the  year. 
On  an  average,  20  carloads  of  manure,  of  25 
to  30  tons  each,  are  received  daily ;  the  an- 
nual   accumulations    approximating    40,000 


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522 


101  ATLANTIC  REPORTER 


(N.J. 


tona.  The  cars  are  nnloaded  by  cranes  and 
dredges,  and  the  manure  is  stacked  in  ricks 
20  feet  high,  about  1,000  feet  long,  and  from 
30  to  50  feet  In  width.  To  keep  the  manure 
from  burning— the  animal  heat  Is  so  Intense 
as  to  be  physically  unendurable — requires 
soaking  with  water  for  a  period  of  three 
weeks.  The  water  Is  drawn  from  what  Is 
called  the  "Black  Pool,"  which  Is  replenished 
by  the  drainage  from  the  manure  ricks.  A 
shrinkage  In  weight  of  about  25  per  cent  re- 
sults, doubtless,  from  drainage  and  evapora- 
tion. The  complainants  allege  that  these 
manure  piles  and  the  Black  Pool  emit  foul, 
nauseating,  and  sickening  odors,  corrupting 
the  air  and  penetrating  their  homes,  greatly 
to  their  Inconvenience  and  discomfort. 

The  principles  of  law  applicable  to  this 
kind  of  nuisance  have  been  so  often  reiterated 
that  I  pause  before  restating  Chancellor  Zab- 
rlskie's  pertinent  declarations  in  Cleveland  v. 
Citizens'  Gaslight  Co.,  20  N.  J.  Eq.  201: 

"Any  business,  however  lawful,  which  causes 
annoyances  that  materially  interfere  with  the 
ordinary  comfort,  physically,  of  human  exist- 
ence, is  a  nuisance  that  should  be  restrained; 
and  smoke,  noise,  and  bad  odors,  even  when  not 
injurious  to  health,  may  render  a  dwelling  so 
nncomfortable  as  to  drive  from  it  any  one  not 
compelled  by  poverty  to  remain.  Unpleasant 
odors,  from  the  very  constitution  of  our  nature, 
render  us  uncomfortable,  and,  when  continued 
or  repeated,  make  life  uncomfortable.  To  live 
comfortably  is  the  chief  and  most  reasonable 
object  of  men  in  acquiring  property  as  the 
means  of  attaining  it;  and  any  interference 
with  oar  neighbor  In  the  comfortable  enjoyment 
ot  life  is  a  wrong  which  the  law  will  redress. 
The  only  question  is:  What  amounts  to  that 
discomfort  from  which  the  law  will  protect?" 

[1]  The  complainants,  ten  in  number  (four 
were  admitted  during  the  course  of  the  trial) 
and  their  witnesses,  reside  within  a  radius 
of  a  mile  or  so  of  the  defendant's  plant,  in 
different  directions,  encircling  It,  and  th^r 
evidence  (of  a  score  and  more)  leaves  not  the 
shadow  of  a  doubt  that  tbey  suffered  much 
annoyance  and  misery  from  these  offensive 
and  disturbing  smells.  It  would  be  Impracti- 
cable here,  and  it  would  serve  no  practicable 
purpose,  to  recount  their  testlmcmy.  Their 
definitions  and  characterizations  of  the  111- 
smelUng  odors  vary  with  the  witnesses'  power 
of  description;  as  one  of  the  witnesses  tersely 
put  It,  "it  is  hard  to  describe  a  bad  smell." 
A  summary  of  their  experiences  and  the  ef- 
fects and  results  of  the  smells,  by  which, 
after  all,  the  question  of  nuisance  Is  to  be 
determined,  is  that,  whenever  the  wind  blew 
towards  them  from  the  direction  of  the  ma- 
nure heaps,  the  atmosphere  was  so  laden  with 
the  malodor  as  to  cause  nausea,  headache, 
and  vomiting,  to  cause  them  to  forego  their 
meals  altogether,  or  to  leave  them  unfinished, 
to  seek  shelter  In  their  homes  with  the  doors 
and  windows  tightly  closed,  to  at  nighttime 
suddenly  awaken  them  from  sound  slumber, 
and  to  deprive  them  of  sleep,  or  compel  thom 
to  seek  sleep  with  the  windows  down  and 
doors  shut.  (Children  were  driven  into  their 
bopses  from  play,  and  members  of  families 


from  their  porches  and  lawns.    All  of  these 
things  did  not,  of  course,  happen  to  all  of 
the  witnesses,  but  nearly  all  of  tbem  to  some, 
and  some  to  all  or  members  of  th^r  families, 
In  tbelr  turn,  or  in  groups,  as  the  winds  fa- 
vored during  the  hot  summer  months;   and 
especially  were  they  affected  during  sidtry, 
damp,  and  foggy  periods,  when  the  vapors 
could  be  seen  arising  from  the  storage  grounds 
and  wafted  towards  their  homes.    The  efflu- 
vium was  constant,  the  infiictlons  intermittent 
and  recurrent,  as  the  air  currents  shifted.  The 
testimony  of  the  complainants  as  to  this  state 
of  affairs  is  supported  by  some  of  the  wit- 
nesses called  by  the  defendant,  and  Is  not 
overcome  by  others,  who  testified  that  the 
odors  smelled  like  stable  manure  and  that 
they  were  not  distressed.    I  am  ready  to  be- 
lieve that  the  smell  was  like  that  of  stable 
manure;    but  stable   manure  plus  noisome 
gases  and  vapors  generated  by  these  enor- 
mous heaps  of  dung,  during  the  cooling  pro- 
cess.    It  requires  no  proof  to  satisfy  me  of 
the  great  difference  in  volume  and  pungency 
of  odors  emitted  by  ordinary  barnyard  ma- 
nure piles,  and  those  that  come  from  Immense 
deposits,  such  as  the  defendant  stores;    for 
I  need  only  recall  the  stifling  and  overpower- 
ing stenches  that  came  from  the  horse  stable 
manure   stored   in  large  quantities  on  the 
Newark  meadows  some  years  ago,  and  I  be- 
lieve by  this  very  defendant  company,  and 
bow  we  were  obliged  to  close  car  windows 
and  doors,  and  stop  breathing,  while  traveling 
by ;  and.  Indeed,  we  experience  the  same  dis- 
agreeable  sensations  in  our  present   dally 
travel,   when  passing  long  trains  freighted 
with  this  animal  excrement     The  evidence 
makes  out  a  clear  case  of  nuisance  to  the 
complainants  in  the  comfortable  enjoyment 
of   their   homes — denounced   by   Judges  aJid 
text-writers   as   among  the  worst   class    of 
nuisances — and  of  a  type  similar  to  many 
reported  in  our  books,  which  this  court  srup- 
pressed.    Ross  v.  Butler,  19  N.  J.  Eq.  291,  97 
Am.  Dec  654;    Cleveland  v.  Citizens'  Qas- 
ligbt  Co.,  supra;    Meigs  t.  Lister,  23  N.  3. 
Eq.  199;   Pennsylvania  R.  R,  ▼.  Angd,  41  N. 
J.  Eiq.  316,  7  Atl.  432,  56  Am.  Rep.  1;  Raasch 
V.    Glazer,    74    AU.   39;     Laird    v.    AtlaaUc 
Coast  Sanitary  Co.,  73  N.  J.  Eq.  49,  67  Atl. 
liSl;    Kroecker  v.  Camden  Coke  (3o.,  S2   N. 
J.  Eq.  373,  88  Atl.  955. 

The  nuisance  determined,  I  will  take  np, 
In  the  order  submitted  by  the  defendants' 
counsel  oo  the  argument  and  In  the  briefs, 
the  various  objections  to  granting  complain- 
ants relief. 

[2]  Before  answer  filed,  a  motion  was  made 
to  strike  out  the  bill  as  amended,  on  tbe 
ground  of  multifariousness.  The  gravamen 
of  the  bill,  as  originally  drawn,  was  nuisance 
to  habitation  by  defiling  the  air,  and  by  the 
amendment  an  additional  injury  to  one  of  tlie 
complainants  was  alleged  by  reason  of  the 
|)ollutlon,  from  the  "Black  Pool,"  of  a  natural 
stream  running  through  his  property.      De- 


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523 


cisloD  was  reserved  ontll  final  bearing,  with 
the  understanding  that,  if  it  went  against  the 
complainants,  the  amendment  was  to  be  with- 
drawn and  an  Independent  bill  filed,  with  the 
farther  stipulation  that  testimony  was  to 
be  taken  on  both  branches  of  the  case  and 
used  in  the  second  suit,  if  one  became  neces- 
sary. Dnder  the  former  practice,  the  Join- 
ing of  these  causes  of  action  would  have  been 
improper  (Davidson  t.  Isham,  9  N.  J.  S]q. 
1S6;  Morris  &  E^sex  Railroad  Co.  t.  Prud- 
den,  20  N.  J.  Eq.  530),  and  would  not  have 
been  permitted  under  the  rule  of  this  court 
promulgated  by  Chancellor  Zabrlskie  at  the 
March  term,  1869.  Bowbotham  v.  Jones,  47 
N.  J.  Eq.  837,  20  Atl.  731,  19  L..  B.  A  663. 
But,  by  the  supplement  to  "An  act  respecting 
the  Court  of  Chancery"  (P.  L.  1915,  p.  184), 
the  joinder  is  now  allowed.  Sections  24  and 
25  of  subdivision  3  of  paragraph  "Schedule 
A"  provide: 

"24.  Separate  Ooutet  of  Action.— Penona  in- 
terested in  separate  causes  of  action  may  join 
as  complainants  or  be  joined  as  defendants,  re- 
spectively, if  the  cansea  of  action  have  a  com- 
mon question  of  law  or  fact,  and  arose  oat  of 
the  same  transaction  or  series  of  transactionB. 

"25.  'Tramactiont.'— The  transactions  refer- 
red to  in  the  preceding  section  include  any 
transaction  which  grew  out  of  the  snbject-matter 
in  regard  to  which  the  controversy  has  arisen." 

This  remedial  provision,  which  has  for  Its 
object  the  simplification  of  chancery  proce- 
dure, by  uniting  In  one  suit  all  manner  of 
complaint  growing  out  of  the  same  subject- 
matter,  ought  to  receive  most  liberal  judicial 
construction.  The  causes  of  action  joined  in 
this  bill — the  corruption  of  the  atmosphere 
and  the  poUutlon  of  water— arose  out  of  the 
same  transaction,  viz.,  the  defendant's  main- 
tenance of  its  manure  storage  ground,  to 
which  the  same  fundamental  principles  of 
law  are  applicable,  generally;  and,  while 
proof  of  one  offense  does  not  establish  the 
other,  the  two  causes  of  complaint  are  so 
closdy  allied  in  connection  with  the  subject- 
matter  of  the  controversy  as  to,  for  all  prac- 
tical purposes,  embody  a  common  question 
of  ftict  within  the  letter  and  spirit  of  the 
legislation.  Either  a  common  question  of 
law  or  a  common  question  of  fact  warrants 
a  joinder;  and  the  use  of  the  disjunctive 
particle  is  an  indication  of  the  broad  sweep 
of  the  legislative  intent,  along  with  the 
trend  of  the  times,  towards  econcnny  of 
time,  labor,  and  costs  of  litigation. 

[3]  By  plea,  the  defendant  challenges  the 
complainants'  right  to  maintain  this  suit 
without  first  showing  that  application  had 
been  made  to  the  local  board  of  health  to 
take  proceedings,  and  that '  the  board  had, 
without  Just  cause,  neglected  or  refused  to 
do  so.  The  police  power  of  the  state  or  lo- 
cal boards  of  health  to  abate  nuisances,  and 
to  apply  to  this  court  to  enjoin  them.  Is 
Ilxnlted  by  the  statute  to  those  "hazardous" 
or  'Injurious  to  public  health."  2  C.  8.  2652. 
Tbe  bill  in  this  case  does  not  charge  that 
tbe  odors  are  noxious,  unwholesome,  or  hurt- 


ful to  health,  but  alleges  merely  that  they 
are  of  a  character  so  offensive  and  disagree- 
able as  to  make  life  uncomfortable,  thus 
stating  a  case  over  which  the  health  bodies 
have  no  jurisdiction.  State  ex  rel.  Board  of 
Health  v.  Neidt,  19  AtL  318;  State  v.  Free- 
holders of  Bergen,  46  N.  J.  Eq.  173,  18  Aa 
465;  Board  of  Health  v.  Lederer,  62  N.  J. 
Eq.  675,  29  Atl.  444.  But,  If  the  case  were 
one  of  a  distinct  and  special  Injury,  af- 
fecting the  enjoyment  of  property,  arising 
out  of  a  public  nuisance,  the  injured  party 
would  be  entitled  to  redress,  without  first 
Invoking  or  resorting  to  the  means  created 
by  law  for  the  suppression  of  public  offenses. 
Bqulty  sometimes  will  decline,  or  with  re- 
luctance entertain.  Jurisdiction  to  abate  a 
public  nuisance  at  the  instance  of  an  In- 
dividual suffering  an  injury  distinct  from 
that  of  the  public,  where  the  remedy  at 
law  is  adequate  and  efficacious  (Morris  & 
ESssez  Bailroad  Co.  v.  Prudden,  supra),  or 
where  the  Legislature  has  established  Insti- 
tutlons  with  power  of  speedy  and  economi- 
cal redress,  as,  for  example,  the  Public  Util- 
ity Commission;  but  this  inclination  does 
not  extend  to  subordinating  a  right  of  pri- 
vate redress  to  a  co-ordinate  remedy  in  the 
public. 

[4,  S]  The  defendant  further  sets  up  in  its 
answer  that  it  and  its  predecessor  in  title 
carried  on  business  in  the  same  manner  at 
Monmouth  Junction  continuously  for  the  past 
eight  years,  and  that  "the  complainants  are 
in  laches,  and  are  therefore  debarred  from 
maintaining  this  suit,  unless  and  until  they 
shall  have  first  established  in  ordinary  pro- 
ceedings at  law  the  fact  that  this  defendant 
Is  guilty  of  maintaining  upon  its  premises 
an  actionable  nuisance."  I  know  of  no  rule, 
and  no  authority  has  been  brought  to  my 
attention,  to  sustain  the  proposition  that 
equity  will  not  grant  relief  from  a  constant 
or  recurring  nuisance,  because  of  the  laches 
of  the  complainants,  until  the  question  of 
nuisance  is  settled  by  the  verdict  of  a  jury. 
Where  tbe  right  or  title  of  the  complain- 
ant is  not  disputed,  or  is  apparent,  and  the 
fact  of  tbe  Injury  has  been  clearly  made  out 
by  the  evidence,  and  the  damage  is  sub- 
stantial, a  court  of  equity  will  in  the  first 
Instance  determine  the  question  of  nuisance 
and  grant  relief.  Carlisle  v.  Cooiter,  18  N.  J. 
Eq.  241;  b.  c  21  N.  J.  Eq.  576;  Duncan  v. 
Hayes,  22  N.  J.  Eq.  25;  Stanford  v.  ligon, 
37  N.  J.  Eq.  94.  In  Biggins  v.  Flemlngton 
Water  Co.,  36  N.  J.  Eq.  638,  Chief  Jus- 
tice Beasley  said: 

"After  a  court  of  equity  has  entertained  a 
bill,  and,  instead  of  sending  tbe  cas^e  to  a  trial 
at  law,  has  itself  tried  the  questions  of  fact 
involved,  and  settled  the  legal  riglit  in  favor 
of  the  complainant,  it  certainly  would  be  a 
result  much  to  be  deprecated  if,  at  such  a  stage 
of  tlie  controversy,  it  was  the  law  that  the 
cliancellor  were  required  to  say  to  such  a  com- 
plainant, 'Tour  right  is  clear;  if  you  sue  at 
law  you  must  inevitably  recover,  and  after  sev- 
eral such  recoveries  it  then  will  be  the  duty  of 
this  court,  on  the  ground  of  avoiding  a  multi- 


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101  ATIiANTIC  REPORTEE 


(N.J, 


plicity  of  suits,  to  enjoin  tiie  continuance  of 
this  nuisance:  still  you  must  go  through  the 
form  of  bringins  such  suits  before  this  court  of 
equity  can  or  will  interfere.'  In  those  cases  in 
which,  to  the  mind  of  the  chancellor,  the  right 
of  the  complainant  is  clear,  and  the  damage 
sustained  by  him  is  substantial,  so  that  his 
right  to  recover  damages  at  law  is  indisputable, 
and  the  chancellor  has  considered  and  establish- 
ed his  right,  I  think  it  not  possible  that  any 
authority  can  be  produced  which  sustains  the 
doctrine  contended  for  by  the  counsel  of  the  de- 
fendant" 

Where  the  nnlsance  Is  erected  and  com- 
pleted, and  there  la  no  pressing  necessity 
for  intervention,  or  where  on  the  question  of 
nuisance  the  evidence  is  in  sharp  conflict 
and  doubt  exists,  a  verdict  of  a  Jury  must  be 
had  before  equity  will  aid.  Attorney  Gen- 
eral V.  Heishon,  18  N.  J.  Bq.  410;  Tuttle  Y. 
Church  (C.  O.)  53  Fed.  422;  Elizabeth  v. 
GUchrlst,  86  Atl.  635.  The  Chancellor  may, 
in  his  discretion,  decline  to  hear  and  de- 
termine a  close  question  of  fact  of  nuisance, 
and  may  frame  an  issue  for  a  Jury,  to  in- 
form "the  conscience  of  the  court."  Bassett 
V.  Johnson,  3  N.  J.  Eq.  417;  Fisler  v.  Pordi, 
10  N.  3.  Eq.  243;  Trenton  Banking  Co.  v. 
Woodruff,  2  N.  J.  Eq.  117;  Newark  &  N.  Y. 
Railroad  Co.  v.  Mayor  of  Newark,  23  N.  J. 
Eq.  515;   Carlisle  v.  Cooper,  supra. 

[6]  Upon  the  argument,  and  In  the  briefs 
<rf  counsel,  they  raise  the  question  of  laches 
as  a  bar  In  its  broader  aspect.  I  do  not  see 
bow  the  complainants  con  be  charged  with 
sleeping  upon  their  rights,  so  as  to  deprive 
them  of  relief.  It  would  be  most  inconsider- 
ate to  hold  that,  having,  for  the  past  eight 
years,  lived  in  a  filthy  atmosphere,  inhaling 
and  enduring  the  stench  from  the  defendant's 
business,  without  complaint,  they  must  pa- 
tiently submit  to  further  discomfort,  and  as 
long  as  the  defendant  sees  fit  to  Impose  upon 
them.  Every  day's  continuance  is  a  new  or 
fresh  nuisance.  Board  of  Health  v.  Lederer, 
supra;  Society  v.  Low,  17  N.  J.  Bq.  19;  Car- 
lisle V.  Cooper,  supra;  Brady  v.  Weeks,  8 
Barb.  (N.  Y.)  IST;  Wood's  Nuisances,  I  18, 
footnote  cases.  Nor  are  the  complainants 
equitably  esto^ed  by  acquiescence.  The  de- 
fendant's outlay  in  the  purchase  and  prepa- 
ration of  Its  land,  for  tlte  purpose  of  car- 
tying  on  an  offensive  trade,  was  not  with  the 
Implied  consent  of  the  complainants;  and. 
If  it  had  been,  they  rightfully  would  have  re- 
frained from  taking  action  in  the  expectation 
that  the  business  could  be  carried  on  so  as 
not  to  barm  them.  The  expenditure  of  about 
$20,000  by  the  Pennsylvania  Railroad  Com- 
pany In  laying  additional  trackage  and  build- 
ing a  railroad  scale  on  its  own  right  of  way 
to  accommodate  itself  to  the  trade  of  the 
defendant,  which  Is  dwelt  upon  by  counsel 
as  a  feature  in  the  element  of  estoppel,  can 
be  of  no  possible  concern. 

The  defendant  puts  forth  considerable  ef- 
fort to  cast  the  blame  for  the  complainants' 
anno.vance  upon  a  nearby  manure  storage 
plant  belonging  to  one  McOirr,  and  also  upon 


loaded  manure  cars  standing  on  sidings  of 
the  Pennsylvania  Railroad  at  Monmouth  Juno* 
tlon;  but  the  evidence  points  unmistakably 
to  the  defendant  as  the  prime  and  principal 
offender.  Witnesses  have  traced  the  odors 
by  the  sense  of  smell,  and  the  gases  and 
vapors  by  the  eye,  directly  to  the  defendant's 
storage  plant,  and  also  located  their  origin 
by  the  direction  of  the  wind.  The  McGIrr 
plant  is  small,  and  may  have,  to  some  ex- 
tent, contributed  to  the  nuisance  of  which 
the  defendant  Is  guilty,  and  so  perhaps  the 
railroad  company;  but  either  or  both  nei- 
ther Justify  nor  excuse  the  defendant.  Meigs 
V.  Uster,  supra. 

[7]  The  defendant  appeals  to  the  court's 
discretion  to  withhold  relief,  for  the  reason 
that  to  grant  an  Injunction  would  do  more 
harm  than  a  denial  would  to  the  complain- 
ants. The  doctrine  of  "weighing  the  In- 
conveniences," It  is  argued,  ought  to  be  ap- 
plied, because  the  Injury  to  the  complainants 
Is  comparatively  small  when  contrasted  with 
the  annual  loss  to  the  defendant's  farmer 
customers  of  38,000  tons  of  horse  stable 
manure,  "enough  to  fertilize  heavily  8,800 
acres  of  land,  which  would  produce,  on  an 
average  good  crop,  760,000  bushels  of  pota- 
toes," and  the  consequent  loss  to  the  public 
at  large  of  this  great  and  valuable  amount 
of  foodstuff,  and  the  eventual  destruction  of 
the  defendant's  entire  business  because  of 
Its  Inability,  for  failure  of  a  market  for  Its 
commodity  or  a  place  to  put  it  during  the 
summer  season,  to  comply  with  the  d^  sta- 
ble owner's  demands  to  be  rid  of  his  stable 
manure  daily  the  year  round,  not  to  speak  of 
the  defendant's  loss  of  profits.  A  similar  ap- 
peal in  behalf  of  the  public  was  swept  aside 
by  Chief  Justice  Beasley  in  the  Hlggtns  Case, 
wherein  be  quoted  Lord  Cranworth  in 
Broadbent  v.  Imperial  Qas  Company,  7  De 
G.,  M.  &  G.,  486: 

"If  It  should  turn  out  that  this  company  had 
no  right  so  to  manufacture  gas  as  to  damage  the 
plaintiS's  market  garden,  I  have  oome  to  the 
couclusion  that  I  cannot  enter  into  any  question 
of  how  far  it  might  be  convenient  for  uio  pub- 
lic that  the  gas  manufacture  should  go  ou. 
*  *  *  But,  unless  the  company  had  such  a 
riijiht,  I  think  the  i>resent  is  not  a  case  in  which 
this  court  can  go  into  the  question  of  conveni- 
ence or  inconvenience,  and  say,  where  a  party 
is  substantially  damaged,  that  he  is  only  to  be 
compensated  by  bringing  an  action  toties 
quoties.  That  would  be  a  disgraceful  state  of 
the  law,  and  I  quite  agree  with  the  Vice  Chan- 
cellor in  holding  that  in  such  a  case  this  court 
must  issue  an  injunction,  whatever  may  be  the 
consequences  with  regard  to  the  lighting  of  the 
piirishes  and  districts  which  this  company  sup- 
plies with  gas." 

The  discretion  exercised  by  courts  of 
equity  In  refusing  injunctions  on  the  ground 
of  greater  injury  to  the  defendant  la  proper- 
ly restricted  to  applications  pendente  lite. 
Tlchenor  v.  Wilson,  8  N.  J.  Bq.  197;  Hlg- 
glns  V.  Water  Co.,  supra;  Simmons  v.  Pater- 
son,  60  N.  J.  £>].  385,  45  Atl.  995,  48  L  R.  A. 
717,  83  Am.  St  Rep.  642.    But,  on  final  hear- 


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HILL  V.  CARB 


626 


tng,  if  the  nuisance  Is  clearly  established, 
and  It  appears  that  it  is  causing  substantial, 
material,  and  irreparable  injury  to  the  com- 
plainant, for  which  there  is  no  adequate 
remedy  at  law,  the  law  is  settled  in  this 
state,  and  by  the  great  weight  of  authority 
In  other  Jurisdictions,  that  the  complainant 
Is  entitled  to  relief  by  injunction,  Irrespec- 
tive of  the  resulting  damage  to  the  defend- 
ant. Hlgglns  V.  Water  Co.,  supra ;  Hennessy 
V.  Carmony,  50  N.  J.  Bq.  616,  25  Atl.  374; 
Campbell  v.  Seaman,  63  N.  T.  568,  20  Am. 
Uep.  567;  SuUivan  v.  Jones  Steel  Co.,  208 
Pa.  540,  57  AU.  1065,  66  U  R.  A.  712.  The 
cases  on  the  subject  of  comparative  injury 
are  collected  in  the  footnote  to  Bristol  r. 
Palmer,  31  L.  B.  A.  (N.  S.)  881,  and  supple- 
mental notes  in  U  R.  A.  19160,  1268.  The 
principle  was  upheld  in  Simmons  v.  Pater- 
son,  but  the  Court  of  E)rrors  and  Ai^eals 
found  itself  Justified  in  withholding  injunc- 
tlve  relief,  "in  view  of  such  acquiescence  and 
the  magnitude  of  the  injury  which  would  fall 
upon  the  public  by  prohibltiog  the  use  of  tlie 
sewers,"  and  held  that  a  substitute  remedy  of 
adequate  compensation  would  be  a  Just  dis- 
position of  the  controversy.  The  nuisance 
complained  of  was  the  pollution  of  the  Pas- 
saic river  through  the  defendant's  sewer  sys- 
tem, built  at  an  enormous  expense  under 
legislative  authority,  and  which  liad  existed 
for  many  years.  The  equities  that  stayed  the 
court's  hands  were  acquiescence  and  impend- 
ing peril  to  health  and  life. 

The  defendant  relies  upon  what  was  said 
toy  Vice  Chancellor  Pitney  in  Hennessy  v. 
Oarmony,  supra,  as  furnishing  a  distinction 
between  the  right  to  an  injunction  where 
the  act  complained  of  is  a  trespass  to  real 
-estate  and  where  the  injury  is  created  by 
noisome  and  disagreeable  odors  interfering 
with  the  comfortable  enjoyment  of  habita- 
tion. The  opinion  does  not  show  that  the 
Vice  Chancellor  differentiated  the  remedy. 
Reilley  v.  Cnrley,  75  N.  J.  Bq.  57,  71  AU.  700, 
138  Am.  St.  Rep.  510.  Pure  air  and  the  com- 
fortable enjoyment  of  property  are  as  much 
rishts  belonging  to  it  as  the  right  of  posses- 
sion and  occupancy.  Fertilizing  Co.  v.  Hyde 
Park,  97  U.  S.  659,  24  l>.  Ed.  1036. 

During  the  course  of  the  trial,  counsel  for 
the  defendant  admitted  that  there  was  no 
method  of  treatment  nor  any  contrivance  by 
wbich  the  nuisance  could  be  overcome,  and 
that  there  was  no  remedy  short  of  a  removal 
of  tlie  cause.  An  injunction  will  therefore  is- 
sue, restraining  the  defendant  from  storing 
manure  on  its  premises  after  the  1st  day  of 
April,  1018.  The  time  is  tlius  extended  to 
enable  the  defendant  to  carry  on  its  business 
during  tlie  present  summer,  and  to  seek  an- 
other location,  if  one  can  be  found.  This 
will  not  be  burdensome  to  the  complainants, 
in  view  of  their  toleration  for  the  past  eight 
years,  and  is  equitable  to  both  parties.  The 
complainants  are  entitled  to  costs. 


HILL  V.  CARB. 


(78  N.  H.  458) 


(Supreme   Court  of  New   Hampshire.     Merri- 
mack.    June  30,  1917.) 

1.  Work  and  Labob  ®=>4(2)— Iupued  Con- 
tracts. 

Fi-om  the  acceptance  of  service  rendered  the 
law  implies  a  promise  to  pay  what  the  service 
was  worth. 

[Kd.  Note.— For  other  cases,  see  Woiii  and 
LBl>or,  Cent  Dig.  {  4.) 

2.  Contracts    ®=»175(2)  —  Conbtbuctioh  — 
"Home." 

In  determining  tlie  meaning  of  an  oral  ex- 
ecuted contract  that  one  aince^  deceased  should 
"have  her  home"  with  plaintiff,  the  evidence 
competent  is  as  to  the  situation  of  the  parties, 
the  amount  of  consideration  paid,  the  age  of 
the  one  to  be  cared  for,  and  the  practical  coa- 
stniction  given  by  the  parties. 

[EM.  Note. — For  other  cases,  see  Contracts, 
Cent  Dig.  §§  766,  1068,  1786,  1803,  1810. 

For  other  definitions,  see  Words  and  Phrases, 
nrst  and  Second  Series,  Home.] 

3.  contsacts    ®=»232(1)  —  constrtjonon  — 
Elements. 

Conceding  a  contract  for  a  home  for  life  to 
liave  been  made  for  a  stated  consideration, 
plaintiff  could  recover  for  special  nursing  and 
care  rendered  necessary  by  a  disease  which  de- 
veloped long  after  the  making  of  the  contract. 

[B3d.  Note. — For  other  cases,  see  Contracts, 
Cent  Dig.  §{  1071,  1073-1075%,  1078-1086.] 

4.  Trial  iSs32S5(12)— Nkcessitt  or  Rxqtjbst- 

ING  Instructions. 
In  action  on  contract  to  pay  for  a  home 
furnished,  where  defendant  claimed  that  the 
consideration  had  been  paid,  but  plaintiff  de- 
manded added  payment  for  special  services  and 
care  rendered  necessary  by  subsequent  develop- 
ment of  a  disease,  it  was  defendant's  duty  to 
ask  instructions  as  to  how  much  of  the  daim 
was  answered  by  the  alleged  contract. 

[EM.  Note.— For  other  cases,  see  TtAal,  Cent 
Dig.  i  638.] 

5.  Trial  «=»165— Dismissal  and  Nonsuit- 
When  Ordered. 

A  nonsuit  is  not  ordered  upon  defendant's 
evidence,  for  plaintiff  is  not  obliged  to  yield  to 
the  evidence,  but  is  entitled  to  have  it  weighed 
by  the  Jury. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  a  373,  374.] 

6.  Appeal  and  Error  €=3853— Soofb  of  Bk- 
viEW— Preservation  of  Exceptions.. 

An  instruction  that  the  jury  could  draw  no 
inference  against  plaintiff  because  she  did  not 
testify,  in  the  absence  of  exception,  became  the 
law  of  the  case,  and  was  not  open  on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  1524,  3405.] 

7.  Appeal  and  Error  €=3995— Scope  or  Bs- 

VIEW. 

The  Supreme  Court  has  no  jurisdiction  to 
decide  the  c<«nparative  weight  of  the  evidence. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §  3907.] 

Exception  from  Superior  Court,  Merri- 
mack Coimty ;   Sawyer,  Judge. 

Assumpsit  by  Amelia  H.  Hill  by  Burt  W. 
Carr,  executor  of  Hannah  Carr,  deceased. 
On  defendant's  exception  to  denial  of  mo- 
tion for  directed  verdict  Eixceptlon  over- 
ruled. 


tfssFor  otber  casern  tee  same  topic  and  KET-NUMBBR  in  all  Ker-Numbered  Dlgeata  and  Indexw 


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626 


101  ATLANTIC  REPORTER 


CN.H. 


Assumpsit  to  recover  for  board,  room, 
care,  and  special  attention  furnished  the  de- 
fendant's testator,  Hannah  Carr,  In  her  life- 
time, according  to  the  following  spedflcatlou : 
To  board  and  room  from  June  16, 
1002.  to  March  30,  1007,  250  weeks, 

at  $4  per  week $1,000.00 

To  board,  room,  washing,  mending, 
nursing,  and  special  v-are  of  Miss 
Carr  from  March  30,  1007,  to  Feb- 
ruary 10, 1912,  254  weeks,  at  |5  per 

week    rr.     1,270.00 

To  board,  room,  washing,  mending, 
nursing,  and  special  care  of  Miss 
Carr  from  February  10,  1012,  to 
February  10,  1014,  104  weeks,  at  $7 
per  week 728.00 


$2,9oaoo 

1902.                       Credit. 
June  1&    Credit  by  cash 1,000.00 


$l,9e&00 

Trial  by  Jury,  with  verdict  for  the  plain- 
tiff for  the  amount  of  the  specification.  There 
was  evidence  the  services  for  whlCh  pay- 
ment was  claimed  were  rendered  and  that 
they  were  of  the  value  charged.  At  the  dose 
of  the  evidence  the  defendant's  motion  that 
a  verdict  be  directed  for  him  was  denied, 
subject  to  exception.  No  other  exceptions 
are  reported. 

Harry  J.  Brown,  of  Concord,  for  plaintiff. 
Streeter,  Demond,  Woodworth  &  Sulloway, 
of  Concord,  for  defendant 

PARSONS,  C.  J.  [1]  From  the  acceptance 
by  the  defendant's  testatrix  of  the  service 
rendered  her,  the  law  implies  a  promise  to 
pay  what  the  service  .was  worth.  The  fact  of 
service  and  its  value  are  not  contested,  but 
the  defendant  contends  that  the  evidence  con- 
clusively establishes  that  all  the  services  were 
rendered  under  an  express  contract  to  fur- 
nish them  for  a  fixed  sum  paid  in  advance. 
The  only  exception  before  the  court  is  one 
to  the  refusal  of  the  court  to  order  a  verdict 
tor  the  defendant  at  the  conclusion  of  the 
evidence.  To  sustain  the  exception,  there- 
fore, not  only  must  the  existence  of  the  al- 
leged contract  conclusively  appear,  but  It 
must  appear  with  equal  conclusiveness  that 
all  of  the  services  claimed  in  the  si>eciflca- 
tion  and  proved  were  within  the  terms  of  the 
contract  There  was  no  written  evidence  of 
the  alleged  contract  One  of  the  parties  be- 
ing dead,  there  was  no  evidence  from  the 
parties  themselves  as  to  the  contract  or  its 
terms.  The  evidence  comes  from  the  plain- 
tiff's husband,  who  testified  that  the  testa- 
trix. Miss  Carr,  then  a  woman  82  years  of 
age  "offered  $1,000  to  come  and  have  a  home 
with  us,  and  finally  we  talked  it  over  and 
concluded  to  let  her  come.  •  •  •  She 
said  she  would  give  $1,000  to  come  and  have 
a  home  with  us;  there  .was  nothing  said 
about  how  long  the  home  should  be  for,  or 
anything  of  the  kind."  Upon  this  statement 
of  the  contract,  conceding  that  the  evidence 
must  be  held  to  conclusively  establish  the 
existence  of  such  a  contract,  the  question 


arises :  What  did  the  parties  understand  to 
be  included  in  the  term  "home"  which  Miss 
Carr  was  to  have  with  the  plaintiff? 

Occasion  for  discussion  of  the  meaning  of 
the  word  "home"  has  arisen  in  the  construc- 
tion of  wills,  in  which  a  home  is  given  to  one 
legatee  at  the  expense  of  another.  The  word 
has  been  construed  to  mean  merely  a  place 
of  residence  (Clough  v.  Clough,  71  N.  H.  412, 
416,  417,  62  Atl.  440;  Gibson  y.  Taylor,  6 
Gray  [Mass.]  810;  Shnttleworth  v.  Shuttle- 
worth,  34  W.  Va.  17,  22,  23,  11  S.  B.  714; 
Kennedy's  Appeal,  *81  Pa.  163;  Nelson  v. 
Nelson,  19  Ohio,  283) ;  and  In  other  cases  to 
Include  board  and  maintenance  (Willett  y. 
Carroll,  13  Md.  459,  468);  also  necessary 
food  and  fuel,  but  not  clothing  (Denfield, 
Petr.,  156  Mass.  266,  80  N.  B.  1018),  and  to 
include  both  lodging  and  sustenance,  subject 
to  an  obligation  to  render  service  (Day  v. 
Towns,  76  N.  H.  200,  81  AtL  405;  Lyon  y. 
Lyon,  65  N.  T.  339).  "It  Is  manifest  that  the 
word  'home'  has  not  such  a  fixed  meaning 
that  It  would  accurately  and  precisely  limit 
an  obligation  like  the  one  here  in  question. 
Recourse  may  therefore  be  had  to  other  evl-  _ 
dence  to  ascertain  the  Intent  of  the  parties."  ' 
Day  v.  Towns,  supra,  76  N.  H.  201,  81  AtL 
406. 

[2]  The  question  is:  What  did  the  parties 
understand  was  to  l>e  furnished  and  received 
under  the  term  "home"  as  adopted  in  their 
contract,  if  they  made  such  a  contract?  The 
evidence  competent  for  consideration  Is  the 
situation  of  the  parties  at  the  time,  the 
amount  of  the  consideration  paid,  the  age  of 
the  person  to  whom  it  was  to  be  furnished, 
with  her  probable  duration  of  life,  if  the 
home  was  to  be  for  life,  and  the  practical 
construction  of  the  parties.  "As  It  ia  the 
province  of  the  Jury  to  weigh  the  testimony 
of  witnesses,  and  determine  its  effect,  so  it  Is 
competent  for  the  court.  In  Its  discretion, 
where  a  contract  is  merely  verbal,  and  there 
is  doubt  as  to  the  precise  language  used,  or 
as  to  the  imderstandlng  of  the  parties,  to 
leave  it  to  the  Jury  to  Judge  what  is  proved, 
and  what  language  was  used,  and  how  It  was 
to  be  understood,  subject  to  proper  instruc- 
tions as  to  the  legal  effect  of  such  contract  as 
they  may  find  to  have  been  made."  Folsom 
y.  Plumer,  48  N.  H.  469,  472. 

[3]  The  testatrix,  Hannah  Carr,  was  82 
years  of  age  at  the  time  it  is  alleged  the  con- 
tract was  made,  and  in  good  health  for  a  per- 
son of  her  age.  She  had  other  property, 
l^ere  was  a  special  reason  in  the  necessities 
of  the  plaintiff  for  the  payment  of  the  lump 
sum  of  $1,000  at  the  time.  The  testatrix 
was  furnished  by  the  plaintiff  with  room  and 
board;  but,  becoming  ill  in  1010,  and  re- 
quiring a  nurse,  the  amount  paid  by  the 
plaintiff  to  the  nurse  was  repaid  by  Hannah. 
She  had  a  doctor,  but  there  Is  no  evidence 
the  plaintiff  paid  him.  Later  she  became  III 
of  a  cancer,  requiring  special  care  and  atten- 
tion of  a  peculiarly  disagreeable  character. 


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HILIj  t.  CABR 


627 


which  the  plaintiff  furnished.  From  this 
evidence  It  could  be  found  that,  eren  If  the 
parties  understood  the  furnishing  a  home  to 
include  lK>ard  and  lodging,  they  also  under- 
stood it  did  not  include  the  special  nursing 
and  care  rendered  necessary  by  the  disease 
which  developed  long  afterward.  And,  as 
the  service  was  rendered,  the  plaintiff,  even 
If  the  contract  was  made  as  the  defendant 
claims,  could  recover  therefor.  Hence  to 
have  granted  the  defendant's  motloa  would 
have  been  error. 

[4]  The  defendant  argues  that  the  plaintiff 
at  the  trial  claimed  to  recover  for  all  serv- 
ices charged  upon  a  quantum  meruit,  or 
agreement  to  pay  what  they  were  reason- 
ably worth,  and  that  the  position  that  a  por- 
tion of  the  services  were  not  covered  by  the 
contract  set  up  by  him  cannot  now  be  taken, 
since  no  such  position  was  taken  at  the  trial. 
The  plaintiff  claimed  to  recover  for  certain 
services  according  to  her  specification.  The 
defendant  claimed  the  evidence  conclusively 
proved  a  contract.  In  consideration  of  $1,000 
paid,  to  perform  all  the  service  for  which 
payment  was  asked,  and  in  reliance  upon 
that  claim  moved  that  a  verdict  be  directed 
for  him.  The  motion  was  properly  denied, 
as  the  contract  was  not  necessarily  an  answer 
to  all  of  the  spedflcation.  It  was  then  the 
defendant's,  not  the  plaintUTs,  duty  to  ask 
for  an  instruction  as  to  how  much  of  the 
specification  was  answered  by  the  alleged 
contract.  The  presumption  is  that  such  In- 
structions as  were  proper  were  given. 

In  this  case,  however,  although  no  excep- 
tions were  taken  to  the  charge.  It  has  been 
rei>orted,  and  it  appears  the  issue  submitted 
to  the  Jury  was  whether  the  services  were 
rendered  under  an  agre^nent  to  pay  what 
was  feasonable,  with  an  advance  payment  of 
$1,000  to  enable  the  plaintiff  then  to  pay 
<^  a  mortgage  upon  her  home,  or  whether 
the  agreement  was  that  the  plaintiff  should 
care  for  the  testator  as  long  as  she  lived; 
the  $1,000  paid  being  full  compensation  there- 
for. No  exception  was  taken  to  the  charge, 
and  the  question  whether  there  was  evidence 
authorizing  recovery  by  the  plaintiff  upon 
the  issue  submitted  is  not,  as  has  been  said, 
raised  by  the  exception  taken.  But  this 
question  has  been  argued,  and  failure  to  con- 
sider It  might  give  a  wrong  impression.  The 
question,  therefore,  is  discussed,  although 
technically  not  presented  by  the  record.  As 
already  suggested,  it  was  for  the  Jury  to  find 
wbat  the  contract  was.  The  services  and 
their  value  were  proved,  from  which  the  law 
inaplies  a  promise  to  pay  what  the  services 
were  worth.  The  defendant  relies  upon  an 
express  promise  by  the  plaintiff  to  render 
tbe  services  withont  further  compensation 
tban  the  $1,000  then  paid.  Whether  the 
plaintiff  so  promised  is  a  question  of  fact. 
The  evidence  tending  to  prove  the  promise 
is  the  testimony  of  the  husband  before  re- 
cited, and  the  fact  that  Hannah  paid  the 


$1,000,  came  to  the  plaintifTs  home  to  live^ 
and  remained  there  until  about  six  months 
before  she  died.  There  was  also  evidence 
from  two  witnesses  that  the  deceased,  after 
occupying  the  home  for  a  long  time,  expressed 
the  feeling  that  she  was  living  on  charity, 
because  she  had  outlived  all  she  had  paid  in. 
The  parties  draw  opposite  inferences  from 
these  statements ;  but  which  Inference  should 
be  drawn  Is  for  the  Jury  to  decide.  Although 
Hannah  Carr  left  the  plaintiff's  home  about 
six  months  before  her  death,  because  a  phys- 
ical injury  to  the  plaintiff  rendered  it  im- 
possible for  her  longer  to  care  for  the  testa- 
trix, it  does  not  appear  she  ever  claimed 
that  the  plaintiff  was  liable  for  her  subse- 
quent support,  or  that  her  conservator,  or 
tbe  defendant,  have  made  such  claim. 

Whether  Hannah  Carr  paid  the  $1,000,  and 
came  to  the  plaintiff's  home  In  reliance  upon 
a  promise,  such  as  the  husband's  evidence 
tends  to  prove,  Involves  probabilities  of  which 
the  Jury  are  Judges.  Upon  this  question 
the  considerations  before  suggested  as  to  the 
probable  understanding  of  the  parties  as  to 
the  word  "home"  bear  with  more  or  less  force. 
The  effect  of  the  contract,  if  found  to  bA 
proved,  was  clearly  explained  to  the  Jury, 
Whether  the  contract  was  made  was  properly 
left  to  them.  The  defendant  argues  that,  la 
tbe  presence  of  an  express  promise  to  pay, 
the  law  will  not  imply  one.  This  is  so;  but 
the  verdict  shows  that  the  express  agreement 
relied  on  by  him  was  not  proved  to  the  satis- 
faction of  the  Jury.  There  was  also  evidence 
offered  by  the  defendant  of  statements  made 
by  the  plaintiff  tending  to  establish  the  con- 
tract as  claimed  by  him. 

[S]  A  nonsuit  is  not  ordered  upon  evidence 
offered  by  the  defendant,  "for  the  plaintiff 
is  not  obliged  to  yield  to  the  evidence,  and 
is  entitled  to  have  It  weighed  by  the  Jury." 
PlUsbury  v.  PUlsbury,  20  N.  H.  90,  97.  The 
defendant  argues  that,  as  the  plaintiff  did 
not  go  upon  the  stand  to  deny  making  the 
admissions  of  which  his  witnesses  testified, 
she  admitted  having  made  them.  The  claim 
is  that  the  plaintiff  could  have  testified 
whether  she  made  the  admissions  or  not,  be- 
cause Hannah  was  not  present  when  they 
were  claimed  to  have  been  made,  and  could 
not  have  testified  upon  the  subject.  But 
Hannah,  If  living,  could  have  testified  to  tbe 
contract,  and  the  plaintiff's  testimony  deny- 
ing an  admission  that  the  contract  was  as 
the  defendant  claims  would  be  indirect  tes- 
timony that  the  contract  was  as  she  claimed. 

[8,  7]  Whether  this  would  or  would  not  ex- 
clude her  testimony  is  now  ImmateriaL  The 
Jury  were  Instructed  that  they  could  not 
draw  any  Inference  against  tbe  plaintiff  be- 
cause she  did  not  testify.  This  was  the  law 
of  the  trial,  and  as  no  exception  was  taken 
it  became  the  law  of  the  case.  The  question 
is  not  now  open.  This  Js  not  a  case  of  uncon- 
tradicted evidence  tending  only  to  one  point 
(State  V.  Harrington,  69  N.  H.  496,  45  Atl 


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101  ATI/ANTIO  REPORTER 


(N.H. 


404;  Arnold  v.  Front,  51  N.  H.  687),  but  one 
where  the  sufficiency  of  the  evidence  relied 
npon  as  an  answer  Involves  probabilities 
which  are  solely  for  the  Jury.  Of  the  compara- 
tive weight  of  the  evidence,  this  court  is  with- 
out Jurisdiction. 
Exception  overruled.    All  concurred. 


(78  N.  H.  US) 

SPENCER  T.  CONNECTICUT  RIVER  POW- 
ER CO.  OF  NEW  HAMPSHIRE. 

(Sapreme  Court  of  New  Hampshire.    Cheshire. 
June  30,  1917.) 

1.  Eminent    Domain    €=»152(1)  —  Right    to 
Damages — Owneks. 

When  land  is  taken  in  invitum  by  eminent 
domain,  the  damages  belons  to  the  owner  at 
the  time  of  the  taking. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  §{  403-405.] 

2.  Eminent  Domain  <8=»271— Flowing  Lands 
— llabiutt  fob  damages. 

Although,  under  Pub.  St.  lOOl,  c.  142,  §  12, 
Laws  1907,  c.  244,  §  3,  and  Laws  1903.  c.  300, 
(  4,  a  power  company  could  acquire  the  right 
to  flow  lands  of  other  owners  and  be  relieved 
from  common-lnw  liability  for  so  doing  by  pay- 
ment or  tender  of  damages,  until  such  payment 
it  is  liable  in  tort  at  common  law  for  the  damage 
done  by  such  flowing. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  fS  725-736,  741.] 

8.  Eminent    Domain    «s>63  —  Exercise    of 

Right. 
Where  a  power  company  had  caused  lands 
of  other  owners  to  be  overflowed,  but  had  taken 
no  steps  to  dispossess  the  owners  of  their  rights, 
deeds  from  such  owners  to  plaintiff  conveyed 
the  lands  anhampered  by  the  right  to  flowage 
then  unacquired. 

(Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  $$  161-164.] 

4.  Eminent  Domain  «=>168@)— Exeboibe  of 
Right. 
Under  Pub.  St  1901,  c  142,  |  12,  Laws 
1907,  c.  244,  I  3,  and  Lews  1903,  a  306,  !  4, 
if  the  owner  of  overflowed  lands  brings  petition 
for  assessment  of  damages,  it  must  be  dismissed 
if  the  power  company  disclaims  the  intention 
to  take  the  right  to  flow  the  land,  and  the  pro- 
ceeding is  only  maintainable  if  the  company  de- 
sires to  acquire!  such  right 

Exceptions  from  Superl(»r  Court,  Cheshire 
County;   Branch,  Judge. 

Petition  by  Charles  P.  Spencer  against  the 
Connecticut  River  Power  Company  of  New 
Hampshire.  Order  dismissing  the  petition, 
and  plaintlfl  accepts.    Exceptions  sustained. 

Petition  for  the  assessment  of  damages 
through  flowing  the  plaintiff's  land  by  the 
defendants'  dam.  At  a  hearing  before  the 
court  It  was  agreed  that  the  plaintiff  acquir- 
ed title  from  two  to  five  years  after  the  de- 
fendants' dam  was  filled  and  the  land  first 
flowed.  No  damages  have  been  paid  by  the 
defendants  to  the  persons  who  owned  the 
premises  when  the  flowage  commenced,  and 
no  other  petition  for  the  assessment  of  dam- 
ages for  such  flowage  has  been  filed.  Upon 
these  facts  the  court  ordered  the  petition 
dismissed,  and  the  plaintiff  excepted. 


Joseph  Madden,  of  Keene,  for  plaintlfl. 
Harold  E.  Whitney,  of  Brattleboro,  Vt,  and 
Philip  H.  Faulkner,  of  Keene,  for  defendant 

PARSONS,  O.  J.  [1, 1]  When  land  Is  taken 
in  Invitum  by  eminent  domain,  the  damages 
belong  to  the  owner  at  the  time  of  the  taking. 
Locke  V.  Laconia,  78  N.  H.  79,  97  Atl.  567;. 
Hadlock  v.  Jaffrey,  75  N.  H.  472,  76  Atl.  123; 
Hodgman  v.  Concord,  69  N.  H.  849,  41  Atl. 
287;  Bean  v.  Warner,  38  N.  H.  247;  Moore 
V.  Boston,  8  Cusb.  (Mass.)  274.  In  these  cas- 
es the  legal  taking  was  considered  to  be  coin- 
cident with  the  entry  upon  the  land,  and 
consequently  the  damages  belcmged  to  the 
owner  at  the  time  of  the  entry.  Under  the 
mill  act  (P.  S.  c.  142,  {  12),  and  the  defend- 
ant's charter  (Laws  1907,  c.  244,  §  3;  Laws 
1903,  c.  306,  !  4),  the  defendant  could  ac- 
quire the  right  to  flow  lands  of  other  own- 
ers and  be  relieved  from  common-law  lia- 
bility for  so  doing  only  by  the  payment  or 
tender  of  the  damages  ascertained  by  agree- 
ment or  through  proceedings  under  the  acts. 
Until  such  payment  the  defendant  is  liabl» 
In  an  action  of  tort  at  common  law  for  the 
damage  done  by  flowing  lands  of  others. 
Roberts  v.  Railway,  73  N.  H.  121,  59  AtL 
619;   Ash  v.  Cummlngs,  50  N.  H.  591. 

[3,  4]  As  the  defendant,  at  the  time  of  the 
plaintiff's  purchase,  had  taken  no  steps  to- 
dispossess  his  grantors  of  their  property 
rights  which  had  been  invaded  by  the  flow- 
age,  their  deeds  to  the  plaintlfl  conveyed  the 
lands  unhampered  by  such  a  right,  then  unac- 
quired and  which  never  might  be  obtained. 
Although  the  grantors  had  a  common-law 
right  of  action  for  damages,  they  did  not 
have  a  legal  right  to  an  assessment  under  the 
statute.  Their  petition  for  such  assessment 
would  have  been  dismissed  unless  the  de- 
fendant had  Joined  In  requesting  an  ascer- 
tainment of  the  value  of  the  flowage  right  in 
the  land.  Upon  the  defendant's  disclaimer  of" 
an  Intention  to  acquire  such  a  right,  a  pe- 
tition by  the  plaintiff's  grantors  would  have 
been  dismissed,  as  the  present  will  be  upon- 
such  plea.  Jones  v.  Whlttemore,  70  N.  H. 
284,  47  AtL  259 ;  Chapman  v.  Co.,  67  N.  H. 
ISO,  38  Atl.  16.  As  the  defendant  has  not 
yet  legally  taken  the  plaintiff's  land  for 
flowage  purposes,  the  present  proceeding  Is 
maintainable,  if  It  now  desires  to  do  so,  and 
the  damages  will  be  recoverable  by  the  own- 
er at  the  time  of  the  taking.  In  Hadlock  v. 
Jaffrey,  75  N.  H.  472,  76  Atl.  123,  the  water 
right  taken  was  taken  under  a  special  act 
authorizing  the  town  to  construct  water- 
works, and  not  under  the  flowage  act,  and 
the  decision  appears  to  stand  npon  the  find- 
ing In  the  case  that  the  right  was  taken  by 
the  town  prior  to  the  plalntifTs  acquisition, 
of  title.  The  plaintiff,  by  bringing  this  pro- 
ceeding, admits  the  flowage  "is  or  may  be  of 
public  use  or  benefit"  (P.  S.  c.  142,  {  15),  and 
hence  that  the  defendant  may  acquire  the 
right  of  flowage  by  payment  of  damages: 


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629 


L  e.,  that  It  may  legally  take  the  land,  not 
that  It  has  legally  taken  It 

As  the  plaintiff  may  maintain  this  proceed* 
tog  under  the  original  act,  It  Is  unnecessary 
to  consider  the  effect  of  chapter  326,  Laws 
1909,  amendtog  section  8,  &  244,  Laws  1907, 
which  gave  the  defendant  power  to  erect  a 
dam  across  the  Ck>nnectlcut  below  the  mouth 
of  the  Ashuelot.  The  special  provisions  re- 
lied upon  by  the  plalntlfl  appear  to  relate 
solely  to  the  fiowage  from  the  dam  at  this 
potot,  and  If  they  could  be  construed  to  ap- 
ply to  flowage  from  other  dams,  they  certain- 
ly would  not  have  that  effect  until  the  de- 
fendant had  accepted  the  amendment  and 
buUt  the  dam,  which  does  not  appear  to  haTe 
yet  been  done. 

Exception  sustained.    All  concurred. 

(UO  Md.  572) 

ABLEMAN  t.  OCEAN  ACCIDENT  &  GUAR- 
ANTEE CORP.,  Limited,  et  bL    (No.  5.) 

(Court  of  Appeals  of  Maryland.    June  26,  1917.) 

Masteb  and  Skbvawt  «=»S93  —  Wobkmen's 
Compensation  Law— Abatement  of  Com- 
pensation AWABDED. 
Under  Workmen's  Compensation  Law  (Acts 
1914,  c.  800)  §  35,  fixing  compensation  for 
partly  dependent  persons,  and  providing  for  de- 
tennmation  of  questions  of  dependency  accord- 
ing to  the  facts  existing  at  the  time  of  the  In- 
Jury  resulting  in  death  to  the  emplo;£,  section 
42,  providing  that  on  marriage  of  a  dependent 
widow  her  compensation  shall  cease,  and  section 
53,  piving  the  Commission  power  to  change  or 
modify  former  findings  or  orders,  the  subsequent 
marriage  of  a  partly  dependent  sister  of  a  de- 
ceased employ^  did  not  determine  her  right  to 
compensation  awarded  her  by  the  Commission 
and  authorize  the  Commission  to  abate  it. 

Appeal  from  Circuit  Court,  Washington 
County;  M.  L.  Keedy,  Judge. 

"To  be  ofBdally  reported." 

Proceeding  under  the  Workmen's  Compen- 
sation Law  by  Toba  Brenner  and  another 
against  the  Ocean  Accident  4  Guarantee  Cor^ 
poratlon.  Limited,  Insurer  and  another,  to 
recover  compensation  for  the  death  of  Morris 
Brenner,  employ^.  From  an  order  of  the 
State  Industrial  Commission,  dismissing  the 
petition  of  the  tosurer,  praying  that  the  com- 
pensation awarded  Mary  Brenner  Adleman 
be  abated.  It  appealed  to  the  circuit  court, 
where  the  mrder  was  reversed,  whereupon 
Mrs.  Adleman  appeals.  Reversed,  with  costs 
to  appellant. 

Argued  before  BOTD,  C.  J.,  and  BRISCOE, 
THOMAS,  URNEB,  and  STOCKBRIDGE,  JJ. 

Frank  G.  Wagaman,  of  Hagerstown,  for 
appellant  Frank  Gosnell,  of  Baltimore, 
(Alexander  Armstrong,  Jr.,  of  Hagerstown, 
on  the  brief),  for  appellees. 

THOMAS,  J.  On  the  Stta  of  December, 
1014,  Morris  Brenner,  an  employ^  of  the 
Reliable  Junk  Company,  of  Hagerstown,  Md., 
died  as  the  result  of  an  accidental  Injury 
arising  out  of  and  in  the  course  of  his  em- 


ployment by  said  company.  His  mother, 
Toba  Brenner,  and  bis  sister,  Mary  Brenner, 
filed  a  claim  for  ccnnpensation  as  dependents 
under  Acts  1914,  c.  800,  known  as  thi:  "Work- 
men's (Compensation  Law,"  and  the  State 
Industrial  Accident  Commission,  en  April 
7,  1915,  passed  an  order  awarding  them,  as 
partly  dependent  upon  the  deceased,  the  sum 
of  112.50  per  week,  which  the  Commission 
apportioned  between  the  claimants,  giving 
each  of  them  $6.25  per  week,  payable  week- 
ly, for  the  period  of  4  years  and  32  weeks 
from  the  5th  day  of  December,  1914. 

On  the  10th  of  June,  1916.  the  Ocean  Ac- 
cident &  Guarantee  (Corporation,  Limited,  the 
insurer  in  the  case,  filed  a  petition  allegtog 
that  Maiy  Brenner  was  married  to  Nathan 
Adleman  on  the  19tb  of  June,  1915,  and  that 
she  had  concealed  her  marriage  from  the 
petitioner  until  the  1st  day  of  June,  1916,  and 
praying  that  the  compensation  awarded  her 
be  abated  by  the  Commission  as  of  the  19th 
of  June,  1915.  After  a  hearing,  at  which  the 
facts  stated  In  the  petition,  except  the  al- 
leged concealment  of  the  marriage,  were  ad- 
mitted, the  Commission  passed  an  order 
denying  the  relief  prayed  and  dismissing  the 
petition.  From  that  order  the  petitioner 
appealed  to  the  drcnlt  court  for  Washington 
county,  and  that  court  on  the  10th  of  Jan- 
uary, 1917,  passed  an  order  reversing  the 
order  of  the  Commission  and  abating  the 
compensation  awarded  Mary  Brenner  as  of 
the  19th  day  of  June,  1915. 

This  appeal  Is  from  the  order  of  the  cir- 
cuit court  and  the  single  question  Involved 
Is  whether  the  subsequent  marriage  of  a  part- 
ly dependent  sister  of  a  deceased  employ^ 
determines  her  right  to  compensation  award- 
ed her  by  the  Commission  and  authorizes 
the  (Commission  to  abate  it  ^e  answer 
to  this  question  must  of  course,  be  found 
in  the  provisions  of  the  act  under  which 
the  award  was  made.  The  (Commission  took 
the  view  that  it  had  no  authority  to  grant 
the  relief  prayed,  while  the  circuit  court  held 
that  under  a  proper  construction  of  the  act  the 
subsequent  marriage  of  Mary  Brenner  de- 
termined her  right  to  the  compensation, 
and  that  the  Commission,  and  the  circuit 
court  on  appeal,  were  authorized  to  abate  it 

The  act  after  declaring  its  purpose  to 
provide  "sure  and  certain  relief  for  workmen 
Injured  In  extrahazardous  employments  and 
their  families  and  dependents,  •••  re- 
gardless of  questions  of  fault  and  to  the  ex- 
clusion of  every  other  remedy,"  except  as 
therein  provided,  and  after  providing  for 
ft  commission  to  administer  the  law,  declares 
In  section  14: 

"Every  employer,  subject  to  the  provisions  of 
this  act,  shall  pay  or  provide  as  required  herein 
compensation  according  to  the  schedules  of  this 
act  for  tbe  disability  or  death  of  his  employi 
resulting  from  an  accidental  personal  injury  sus- 
tained by  the  employ^  arising  out  of  and  m  the 
course  of  his  employment,  without  regard  to 
fault  as  a  cause  of  such  injury,"  etc. 


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(^d 


Otber  sections  of  the  act  require  tbe  em- 
ployer to  secure  the  payment  ot  the  compen- 
sation referred  to  In  section  14,  and  provide 
how  he  may  do  so.  Section  35  declares 
that: 

"Each  employ^  (or  in  case  of  death  his  family 
or  dependents),  entitled  to  receive  compensation 
under  tliis  act  shall  receive  the  same  in  accord- 
ance with  the  following  schedule,  and  except  as 
in  this  act  otherwise  provided,  such  payment 
shall  be  in  lieu  of  any  and  all  rights  of  action 
whatsoever  against  any  person  whomsoever." 

After  providing  for  permanent  and  tern- 
porary  total  disability  and  permanent  and 
temporary  partial  disability,  this  section  con- 
tains the  following  provisions  for  cases  where 
the  Injury  causes  the  death  of  the  employ^ 
within  two  years : 

"If  there  are  wholly  dependent  persons  at  the 
time  of  the  death,  the  payment  shall  be  fifty  per 
cent,  of  the  averjiRe  weekly  wages  [of  the  em- 
ploy6],  and  to  continne  for  the  reran  inder  of  the 
period  between  the  date  of  the  death  and  eight 
years  after  the  date  of  the  injury,  and  not  to 
amount  to  more  than  a  maximum  of  four  thou- 
sand two  hundred  and  fifty  dollars,  nor  less  than 
a  minimum  of  one  thousand  dollars. 

"If  there  are  partly  dependent  persons  at  the 
time  of  the  death,  the  payment  shall  be  fifty 
per  cent,  of  tno  average  weekly  wages,  and  to 
continue  for  all  of  such  portion  of  the  period  of 
eight  years  after  the  date  of  the  injury^  as  the 
Commission  in  each  [case]  may  determine,  and 
not  to  amount  to  more  than  a  maximum  of  three 
thousand  dollars. 

"Tbe  following  persons  shall  be  presumed  to 
be  wholly  dependent  for  support  upon  a  deceas- 
ed employ^:  A  wife  or  invalid  husband  ('in- 
valid' meaning  one  physically  or  mentally  in- 
capacitated from  earning),  a  child  or  children 
under  the  age  of  sixteen  years  (or  over  said 
age  if  physically  or  mentally  incnpacitated  from 
earning)  living  with  or  dependent  upon  the  par- 
ent at  the  time  of  the  injury  or  death. 

"In  all  other  cases,  questions  of  dependency.  In 
whole  or  in  part,  shall  be  determined  in  accord- 
ance with  the  facts  in  each  particular  case  exist- 
ing at  the  time  of  tbe  injury  resulting  in  the 
death  of  such  employ^,  but  no  person  shall  be 
considered  as  dependent  unless  such  person  be 
a  father,  mother,  grandfather,  grandmother,  step- 
child or  grandchild,  or  brother  or  sister  of  the 
deceased  employ^,  including  those  otherwise 
specified  in  this  section." 

Under  these  sections,  where  the  employ^,  en- 
gaged In  any  one  of  the  employments  covered 
by  the  act,  dies  as  the  result  of  an  "accidental 
personal  Injury  •  •  •  arising  out  of  and 
In  the  coarse  of  his  employment"  within  two 
years,  leaving  at  the  time  of  bis  death  pei> 
sons  within  the  class  mentioned  who  were, 
at  the  time  of  the  injury,  partly  dependent 
upon  him,  tbe  act  imposes  upon  the  employer 
a  Uablllt7  to  pay  to  such  dependents  60 
per  cent  of  tbe  average  weekly  wages  of  the 
employ^,  to  continue  for  all  or  such  portion 
of  the  period  of  eight  years  after  the  date  of 
the  injury  as  tbe  Commission  may  deter- 
mine, not  to  amount  to  more  than  a  maximum 
of  $3,000.  Except  as  to  those  presumed  to 
be  wholly  dependent,  the  question  of  depend- 
ency, in  whole  or  In  part,  and  the  portion  of 
the  period  of  eight  years  after  the  date  of  the 
Injury  during  which  50  per  cent,  of  the  aver- 
age weekly  wages  of  the  employe  is  to  be 
paid  to  those  partly  dependent,  is  left  to  the 


determination  of  the  Commission ;  but  when 
so  determined  tbe  obligation  of  the  employer 
to  pay,  and  the  right  of  the  beneficiaries  to 
receive,  the  compensation  provided  becomes 
definite  and  certain.  This  obligation  to  pay 
and  the  right  to  receive  are  not,  by  the  terms 
of  tbe  act,  made  conditional  upon  tiie  benefi- 
ciary remaining  unmarried,  or  dependent 
upon  his  or  her  subsequent  state  of  depend- 
ency, and  nowhere  in  the  act  is  there  found 
express  authority  to  the  Commission  to  abate 
the  compensation.  Tbe  relief  to  the  depend- 
ents of  the  deceased  employe  provided  by  the 
act  is  in  lieu  of  that  afforded  by  the  common 
law,  and  subsection  11  of  section  62  of  tbe 
act  defines  "beneficiary"  as : 

"A  husband,  wife,  child,  children  or  depend- 
ents of  an  employe  in  whom  shall  vest  a  right  to 
receive  payment  under  this  act" 

Tbe  act  defines  tbe  duties  and  powers  of 
the  Commission,  and,  in  the  absence  of  a 
clear  grant  of  such  power,  we  would  not  be 
justified  in  holding  that  it  Is  authorized  to 
abate  compensation  expressly  provided  by  the 
act  as  "sure  and  certain  relief'  for  those  who 
were  partly  dependent  upon  a  deceased  em- 
ploye, and  whose  right  thereto  has  been  de- 
termined and  has  vested  in  accordance  with 
the  terms  of  the  act  When  we  speak  of  tbe 
right  to  the  compensation  as  vesting  In  tbe 
beneficiary,  we  do  not  mean  to  indicate  that 
the  right  of  those  partly  dependent  to  the 
compensation  awarded  them  is  a  vested  right, 
in  tbe  sense  that  if  they  should  die  before 
the  completion  of  tbe  weekly  payments  al- 
lowed them,  their  right  to  the  same  would 
devolve  upon  their  personal  representatives. 
That  question  is  not  presented  by  the  record, 
and  we  are  not  to  be  understood  as  express- 
ing any  opinion  in  regard  to  it  But  that  the 
right  to  the  compensation  provided  by  the 
statute  vests  in  such  beneficiaries,  in  tbe 
sense  that  it  is  not  conditional  upon  their 
remaining  unmarried,  and  that  the  marriage 
of  such  a  beneficiary  does  not  authorize  tbe 
abatement  of  tbe  compensation  by  the  Com- 
mission, we  think  is  free  of  doubt 

Tbe  appellee  relies,  and  tbe  learned  court 
below  based  Its  conclusion,  upon  section  53, 
which  provides  that: 

"The  powers  and  jurisdiction  of  the  Commis- 
sion over  each  case  shall  be  continuing  and  it 
may  from  time  to  time  make  such  modificaitians 
or  change  with  respect  to  former  findings  or 
orders  with  respect  thereto  as  in  its  opinion  may 
be  justified." 

A  reference  to  several  otber  sections  of  tbe 
act  will  show  tbe  purpose  and  application  of 
this  section.  For  Instance,  under  section  41, 
compensation  may  be  suspended  by  tbe  Com- 
mission where  an  employs  refuses  to  submit 
to  a  medical  examination.  Under  section  42. 
in  case  of  aggravation,  diminution,  or  ter- 
mination of  disability,  the  Commission  may 
readjust  the  rate  of  compensation,  and,  in  a 
proper  case,  terminate  the  payments;  and 
under  section  43,  if  a  beneficiary  has  been  a 
nonresident  of  the  state  for  one  year,  the 
Commission  may  convert  weekly  payments 


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Into  a  '^nznp  sum  payment"  These  and  ofh- ' 
er  provisions  Indicate  the  power  granted  to 
the  Commission  In  the  ezerdse  of  Its  contlnn- 
Ing  jurlsdlctlmi,  but  they  afford  no  support 
for  the  contention  here  made  by  the  appellee. 
If  we  assume  that  under  section  53  the  Com- 
mission may  make  such  modifications  or 
change  In  Its  former  findings  in  reference  to 
those  partly  dependent  upon  a  deceased  em- 
ploye, or  Its  orders  In  respect  thereto,  as  In 
its  opinion  may  be  Justified,  the  change  or 
modification  made  must  nevertheless  be  such 
as  is  authorized  by  the  act  Subsection  4  of 
section  35  declares  in  explicit  terms  that  In 
all  cases,  other  than  those  In  which  the  law 
presumes  the  claimants  to  be  wholly  depend- 
ent, the  questl(Hi  of  dependency.  In  whole  or 
in  part,  shall  be  determined  In  accwdance 
with  the  facta  existing  at  the  time  of  the  in- 
Jury  resulting  In  the  death  of  the  employe. 
It  is  clear  that,  if  the  question  of  dq)endency 
is  to  be  determined  upon  the  facta  existing 
at  the  time  of  the  Injury,  any  modification  or 
change  by  the  Commission  of  its  former  find- 
ing upon  that  question  must  likewise  be  bas- 
ed upon  the  facts  existing  at  the  time  of  the 
injury,  and  cannot  be  made  to  rest  upon  or  to 
conform  to  conditions  arising  and  existing 
subsequent  to  the  date  of  the  Injury,  provid- 
ed, of  course,  the  award  is  to  those  living  at 
the  time  of  the  death  of  the  Injured  employe. 

Here  the  application  Is  not  for  a  correction 
or  modification  of  the  finding  of  the  Commis- 
sion upon  the  facts  existing  at  the  date  of 
the  injury ;  but  the  petitioner,  In  the  face  of 
the  express  terms  of  the  statute,  seeks  to 
have  the  question  of  dependency  of  Mary 
Brenner  determined  by  the  Commission  upon 
a  state  of  facts  arising  after  the  Injury,  the 
death  of  the  employe,  and  the  award  of  the 
Commission,  and  to  have  the  former  finding 
and  order  of  the  Commission  changed  accord- 
ingly. In  dealing  with  a  similar  provision 
In  the  Ohio  statute,  where  it  was  claimed 
that  it  conferred  upon  the  Board  of  Awards 
power  to  abate  an  award  to  one  wholly  de- 
pendent upon  a  deceased  employe,  the  Su- 
preme Court  of  Ohio  said,  in  State  v.  In- 
dustrial Commission,  92  Ohio  St  434,  111  N. 
B.  299,  li.  R.  A.  1916D,  944 : 

"If  section  39  could  be  construed  as  giving 
the  board  i)ower  to  abate  an  award  made  under 
paragraidi  2  of  section  35,  in  case  of  the  death 
of  dependent  prior  to  completion  of  payments,  it 
necessarily  follows  that  it  could  be  construed 
also  as  giving  the  board  power  and  jurisdiction 
to  determine  dependency  at  any  time  during  the 
period  covered  by  the  payments,  instead  of  hav- 
ing its  determination  expressly  limited  by  the 
statute,  as  it  is,  to  dependency  at  time  of  death, 
and,  although  the  statute  is  inflexible  as  to 
amount  of  award,  abate  the  award  at  any  time 
the  person  to  whom  the  compensation  was  grant- 
ed ceased  to  be  a  dependent  This  construction 
would  be  directly  Contrary  to  the  statutory  re- 
qtrirements." 

Section  49  provides: 

"The  benefits  in  case  of  death  shall  be  paid  to 
gnch  one  or  more  of  the  dependents  of  the  dece- 


dent for  the  benefit  of  all  the  dependents  as  may 
be  determined  by  the  Commission,  which  may 
apportion  the  benefits  among  the  dependents  in 
such  manner  as  it  may  deem  just  and  equitable." 

It  is  suggested  that  under  this  section  and 
section  63  the  Commission  may  reapportion 
the  compensation  among  the  dependents,  and 
It  is  argued  that.  If  the  Commission  has  the 
power  to  cliange  the  award  to  one  of  the 
beneficiaries,  it  may  abate  It  entirely.  We 
are  not  required  in  this  case  to  determine 
whether  the  Commission  has  the  power  to 
change  its  award  for  the  purpose  of  reappor- 
tioning the  compensation  among  the  depend- 
ents. The  statute  fixes  the  amount  of  the 
weekly  payments  the  employer  is  required 
to  make  to  the  tieneficiarles  at  50  per  cent 
of  the  average  weekly  wages  of  the  deceas- 
ed employe.  That  amount  cannot  be  changed 
by  the  Commission,  but  must  be  paid  to  one 
or  more  of  the  dependents  for  the  t)eneflt  of 
all,  or  may  l>e  apportioned  among  them,  as 
the  Commission  may  deem  just  and  equitable. 
Toba  Brenner,  the  other  beneficiary,  is  not 
asking  for  a  reapportionment  of  the  week- 
ly payment  fixed  by  the  statute;  but  the  pe- 
tlti(»ier,  the  insurer,  is  in  effect  seeking  to 
have  the  statutory  allowance  reduced  to  the 
extent  of  one-half.  The  terms  "Just  and 
equitable,"  used  in  section  49,  relate,  not  to 
the  amount  of  compensation  to  be  paid  by  the 
employer  or  insurer,  but  to  the  apportion- 
ment of  the  same  among  the  beneficiaries. 
In  that  the  petitioner  can  have  no  interest 

Section  42  provides  that: 

"In  case  of  the  remarriage  of  a  dependent  wid- 
ow of  a  deceased  employ^  without  dependent 
children,  all  compensation  nnder  this  act  shall 
cease,"  etc. 

But  there  is  no  such  provision  In  reference 
to  other  dependents  mentioned  in  the  act, 
and  It  is  reasonable  to  conclude  that  if  the 
Legislature,  while  dealing  with  the  subject 
of  abatement  of  compensation,  bad  intended 
the  compensation  provided  for  a  sister  to 
abate  upon  her  marriage  it  would  bave  so 
declared  in  plain  terms. 

We  have  examined  the  other  cases  cited 
by  counsel,  but  they  furnish  very  little  aid 
in  arriving  at  the  proper  conclusion  in  the 
case  before  us.  Those  determining  the  ef- 
fect of  the  marriage  of  a  dependent  are  bas- 
ed upon  statutes  unlike  the  Maryland  law. 
while  in  the  others  the  question  Involved  was 
the  right  of  the  personal  representatives  of 
a  deceased  dependent  to  the  compensation 
awarded  or  provided  by  statute.  As  the 
Maryland  act  does  not  provide  for  the  abate- 
ment of  compensation  awarded  to  a  partly 
dependent  sister  of  a  deceased  employe  upon 
her  marriage,  or  authorise  the  Commission 
to  abate  It  on  that  ground,  we  must  reverse 
the  order  of  the  court  below. 

Order  reversed,  with  costs  to  the  appel- 
lant, Mary  Brenner  Adleman. 


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(131  Md.  1) 

WASHINGTON,  B.  ft  A.  BI/ECTBIC  IL  CO. 
T.  OWENS.     (No.  17.) 

<Court  of  Appeals  of  Marylan^.    June  27, 1917.) 

1.  Mastkr  and  Servant  ^=>265(4)— Fedebal 
Empi:x>tbrs'    I^iabiutt    Act— Injubies   in 

iNXEBaTATE    COMUEBCE — ISSCES   AND    PBOOF. 

In  an  action  under  the  federal  Employers' 
Liability  Act  (Act  April  22,  190S,  c.  149,  35 
Stat  65  [U.  S.  Comp.  St.  li>16,  §^  8657-86C5]) 
for  death  of  aervaut,  it  is  essential  to  plaintiff's 
right  to  recoverjr  to  prove  that  at  the  time  the 
deceased  was  injured  he  waa  employed  in  inter- 
state commerce. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dip.  §§  8S0,  899.] 

2.  Mastbk  and  Sebvant  «=»276(1)— Actions 
FOB  Death— Federal  Fuplotebs'  Liabiu- 

TT  Act — SUITFICIKNCT  OF  EVIDENCE. 

In  an  action  under  the  federal  Employers' 
liiabiUty  Act,  evidence  that  deceased,  who  was 
accidentally  killed  by  the  discharge  of  a  pistol 
in  the  hands  of  a  fellow  servant,  was  employed 
in  a  blacksmith  shop  in  which  repairs  were  made 
on  cars  engaged  in  both  interstate  and  intra- 
state work,  was  insufficient  to  show  that  at  the 
time  of  deceased's  death  he  was  engaged  in 
work  in  interstate  commerce. 

[Ed.  Note. — For  other  cases,  see  Master  Mid 
Servant,  Cent  Dig.  iS  950,  964.] 

Appeal  from  Superior  Court  of  Baltimore 
City;   John  J.  Dobler,  Judge. 

"To  be  officially  reported." 

Action  by  Sylvia  L.  Owens,  adralnistratrlx 
of  Marcellus  F.  Owens,  deceased,  against  tbe 
Washington,  Baltimore  &  Annapolis  Electric 
Railroad  Cidmpany.  Judgment  for  plalntUf, 
and  defendant  appeals.    Reversed. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKB,  THOMAS,  PATTISON,  and  STOCK- 
BRIDGE,  JJ. 

George  Wlnshlp  Taylor  and  George  Weems 
Williams,  both  of  Baltimore,  for  appellant 
Thomas  Mackenzie,  of  Baltimore^  for  ap- 
pellee. 

BDRKE,  J.  The  appellee,  plaintiff  b^ow, 
recovered  a  Judgment  In  the  superior  court 
of  Baltimore  City  against  the  appellant,  and 
this  Is  the  defendant's  appeal.  The  suit  was 
brought  under  tbe  federal  Employers'  Lia- 
bility Act,  areroved  April  22,  1908,  to  recov- 
er damages  for  the  death  of  Marcellus  F. 
Owens,  who  was  Injured  by  the  alleged  neg- 
ligence of  the  defendant,  while  he  was  in  Its 
employ,  and  died  as  the  result  of  said  injury. 
The  first  section  of  that  act  provides: 

"That  every  common  carrier  by  railroad  while 
engaging  in  commerce  between  any  of  the  sev- 
eral states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the  District  of 
Columbia  and  any  of  the  states  or  territories,  or 
between  the  District  of  Columbia  or  any  of  the 
states  or  territories  and  any  foreign  nation  or 
nations,  shall  be  liable  in  damages  to  any  person 
soffering_  injury  while  he  is  employed  by  such 
carrier  in  such  commerce,  or,  in  case  of  the 
death  of  such  employ^,  to  his  or  her  personal 
representative,  for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  employ^ ; 
and,  if  none,  then  of  such  employe's  parents; 
and  if  none,  then  to  the  next  of  kin  dependent 
upon  such  employ^,  for  such  injury  or  death  re- 


sulting in  whole  or  la  part  from  tlie  negligence 
of  any  of  the  officers,  agents,  or  employ^  of 
such  carrier,  or  by  reason  of  any  defect  or  in- 
sufficiency, due  to  its  negligence,  in  its  cars,  en- 
gines, appliances,  machinery,  track,  roadbed, 
works,  boats,  wharves,  or  other  equipment" 

The  declaration  contained  two  counts.  In 
the  first  count  it  was  alleged: 

"On  the  2d  day  of  July,  1915,  Marcellus  F. 
Owens,  the  deceased  aforesaid,  and  the  husband 
of  the  said  equitable  plaintiff  Dora  Owens,  and 
the  father  of  the  said  equitable  plaintiffs,  Sylvia 
L.  Owens,  Gilbert  Owens,  and  Franklin  Owens, 
was  and  for  a  number  of  years  last  preceding 
snid  date  had  been  employed  by  and  engaged  in 
the  service  of  said  defendant  corporation  as  a 
blacksmith  or  mechanic  in  tbe  repair  works  and 
shops  of  the  defendant  engaged  in  work  upon 
the  cars  and  Instrumentalities  used  by  it  in  inter- 
state commerce  as  hereinbefore  and  hereinafter 
described ;  that  on  the  said  2d  day  of  July,  1915, 
the  said  Marcrflus  F.  Owens  was  employed,  en- 
paged,  and  acting  in  the  ser?ice  of  the  defendant 
as  a  blacksmith  or  mechanic  in  the  perform- 
ance of  his  work  upon  the  oar  and  instmmentali- 
ties  used  by  the  defendant  in  its  interstate  com- 
merce aforesaid  between  the  state  of  Maryland 
and  the  District  of  ColumHa,  and  within  the 
jurisdiction  of  the  United  States  of  America 
hereinafter  referred  to." 

At  the  conclusion  of  the  evidence  for  the 
plaintiff  the  defendant  submitted  several 
prayers  by  which  the  court  was  asked  to 
withdraw  the  case  from  the  consideration 
of  the  Jury  upon  various  grounds.  The  same 
questions  as  to  the  plalntlfrs  right  to  recover 
were  raised  by  the  defendant's  special  ex- 
ceptions filed  to  granting  of  the  plaintiff's 
prayers.  These  prayers  and  special  excep- 
tions were  overruled  by  the  court  The 
rulings  on  the  prayers  and  sijedal  exceptions 
constitute  the  only  bill  of  exceptions  In  the 
record.  These  rulings  present  several  Im- 
portant questions  as  to  the  plalntUTs  right  to 
maintain  the  suit  tmder  tbe  act;  but  In  the 
view  we  take  of  the  case  only  one  of  these 
questions  need  be  considered.  That  ques- 
tion Is  this:  Did  tbe  plaintiff  offer  any  legal- 
ly sufficient  evidence  tending  to  show  that 
Marcellus  F.  Owens  was  Injured  while  he 
was  employed  In  Interstate  commerce,  with- 
in the  meaning  of  the  federal  Employers' 
Liability  Act?  Upon  the  substantial  and  con- 
trolling facts,  which  are  few  and  simple, 
there  is  no  conflict  in  the  evidence,  and  these 
facts  are  here  stated. 

The  defendant  is  a  common  carrier,  and 
owns  and  operates  an  electric  railroad  whlcb 
runs  from  Baltimore  City,  Md.,  to  and  Into 
the  city  of  Wlashlngton,  In  the  District  of  Co- 
lumbia, and  ah90  from  Baltimore  City  to 
Annapolis,  Md.  It  Is  engaged  in  l)oth  inter- 
state and  intrastate  transportation.  The 
branch  line  to  Annapolis  connects  with  the 
main  line  at  Annapolis  Junction  where  the 
company's  repair  shoi>s  aro  located.  Marcel- 
lus F.  Owens  was  in  the  employ  of  the  de- 
fendant working  as  a  helper  In  the  t>lack- 
smith  shop  at  this  place.  There  were  four 
persons  employed  In  this  blacksmith  -  shop, 
viz.  Robert  F.  Bryant  and  Arthur  T.   An- 


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WASHINGTON,  B.  A  A.  BLECTBIC  R.  CO.  ▼.  OWENS 


6.13 


drews,  both  blacksmiths,  and  William  liOW- 
man  and  Marcellus  F.  Owens  as  their  respec- 
tlve  helpers.  About  a  year  and  a  half  be- 
fore Owens  was  Injured  Robert  F.  Bryant 
brought  to  the  shop  an  old  army  pistol.  This 
old  pistol  was  used  In  the  hunting  of  rabbits 
near  the  shops,  and  was  at  times  discharged 
about  the  shops  for  amusement  or  sport.  It 
was  kept  in  a  locker  In  the  shop  in  which 
Bryant  and  Lowman  kept  their  clothes  and 
tools.  E^arly  In  the  afternoon  of  July  2, 1916, 
William  Lowman  took  the  old  pistol,  which 
was  loaded  with  powder' and  paper  wadding, 
from  the  locker,  intending  to  discharge  it 
either  for  amusement  or  to  frighten  some 
one  about  the  works.  When  he  was  at  or 
near  the  door  of  the  blacksmith  shop  the  pis- 
tol was  accidentally  discharged  and  the  load 
entered  the  right  thigh  of  Owens,  who  was 
standing  near  by  at  the  time.  The  wound 
was  washed  at  the  shop  and  Owens  went 
borne,  and  ttiat  evening  he  consulted  Dr. 
Thomas  W.  Linthicum,.wlM>  was  called  as  a 
witness  and  testified: 

"That  on  July  2,  1915,  Marcdlus  F.  Owens 
was  brought  to  his  office  about  8  o'clock  in  the 
evening  suffering  from  a  gunshot  wound  in  the 
right  thigh.  The  hole  at  the  entrance  of  the 
woond  was  about  as  large  as  a  half  dollar, 
ragged  and  torn.  He  dressed  it.  Some  one  had 
attempted  to  dress  it  before,  and  had  removed 
some  of  the  debris.  There  was  not  a  bullet  in 
the  pistol,  but  it  was  loaded  with  hair  or  dirt  or 
packing  of  some  kind.  The  wound  was  blacken- 
ed as  if  a  powder  wound.  He  was  burned 
through  his  clothes.  It  was  deeip,  and  went 
through  nearly  all  the  muscles,  practically  to 
the  b<xie.  He  removed  some  particles  resembling 
hair.  Owens  stated  to  him  that  it  was  packing 
from  an  old  refrigerator.  He  said  that  was 
what  the  pistol  was  loaded  with.  He  removed 
from  the  wound  a  lot  of  hair  that  looked  like 
packing,  although  be  had  never  seen  packing  of 
a  refrigerator.  He  saw  Owens  again  July  3d, 
and  every  day  until  the  day  of  his  death,  on 
July  9th,  at  the  University  of  Maryland  Hos- 
pital. He  thinks  he  died  from  the  effects  of 
this  wound." 

[1,2]  It  was  essential  to  the  plaintifPs 
right  to  recover  to  prove  that  at  the  time  the 
deceased  was  Injured  he  was  employed  in 
Interstate  commerce  work.  Howard  v.  111. 
C.  R.  Co.,  207  U.  S.  492,  28  Sup.  Ct.  141,  52 
I*  Ed.  297;  Osborne  v.  Gray,  241  U.  S.  16,  36 
Sup.  Ot  486,  60  I*  Ed.  865;  111.  a  R.  Co.  v. 
Behrens,  233  V.  S.  473,  34  Sup.  Ot.  646,  58  L. 
Ed.  1051,  Ann.  C&s.  19140,  163 ;  Minn.  &  St 
I*  R.  Oo.  V,  Winters,  242  U.  S.  353,  37  Sup. 
Ct  170,  61  L.  Ed.  358.  In  what  parUcuiar 
service  was  Owens  engaged  on  the  day  he 
was  Injured?  Was  it  interstate  or  Intrastate 
commerce?  The  record  is  entirely  silent 
The  evidence  of  the  character  of  work  done 
by  him  is  found  in  the  testimony  of  Robert  F. 
Bryant  as  follows: 

"Q.  What  kind  of  work  did  you  do  in  the 
shop?  A.  Blacksmithing.  Q.  You  did  it  all? 
A.  No:  Mr.  Andrews,  he  had  a  helper.  Q.  I 
don't  mean  you  personally,  but  In  your  shop  you 
four  men  did  all  the  repairs  on  ^1  the  cars  of 
the  defendant?  A.  Doing  repairs.  Q.  That 
was  the  only  blacksmith  shop  out  there  in  those 
Works?     A.  Yes,    sir.      Q.  This    railroad    line 


runs   from  the  District   of  Columbia  over  to 
Baltimore?    A.  I  rode  on  it  that  far;  yes." 

Whether  he  was  employed  on  the  day  he 
was  injured  in  work  on  cars  used  in  intra- 
state service— on  the  Annapolis  division — or 
in  repairing  cars  used  on  the  interstate  divi- 
sTon,  or  working  on  cars  used  indiscriminate- 
ly in  both  kinds  of  transportation  is  not 
shown.  The  evidence  fails  to  show  that  at 
the  time  he  was  injured  he  was  employed  in 
Interstate  commerce,  and  the  case  should  not 
hare  been  submitted  to  the  Jury.  In  IlL  C. 
B.  Co.  T.  Behrens,  Adm'r,  233  U.  S.  473,  34 
Sup.  Ct.  646,  58  L.  Ed.  1061,  Ann.  Cas.  1914C, 
163,  the  court  said: 

"The  facts  shown  in  the  certificate  are  these: 
The  intestate  was  in  the  service  of  the  railroad 
company  as  a  member  of  a  crew  attached  to  a 
switch  engine  operated  exclusively  within  the 
city  of  New  Orleans.  He  was  the  Qreman,  and 
came  to  his  death,  while  at  his  post  of  duty, 
through  a  head-on  collision.  The  general  work 
of  the  crew  consisted  in  moving  cars  from  one 
point  to  another  within  the  city  over  the  com- 
pany's tracks  and  other  connecting  tracks. 
Sometimes  the  cars  were  loaded,  at  other  times 
empty,  and  at  stUl  other  times  some  were  loaded 
and  others  empty.  When  loaded,  the  freight 
in  them  was  at  times  destined  from  within  to 
without  the  state  or  vice  versa,  at  other  times 
was  moving  only  l>etween  points  within  the 
state,  and  at  still  other  times  was  of  both 
classes.  When  the  cars  were  empty,  the  purpose 
was  usually  to  take  them  where  they  were  to 
be  loaded,  or  away  from  where  they  had  been 
unloaded;  and  oftentimes,  following  the  move- 
ment of  cars,  loaded  or  empty,  to  a  given  point, 
other  cars  were  gathered  up  and  taken  or  start- 
ed elsewhere.  In  short  the  crew  handled  inter- 
state and  intrastate  traiSSc  indiscriminately,  fr^ 
quently  moving  both  at  once,  and  at  times  turn- 
ing directly  from  one  to  the  other.  At  the  time 
of  the  collision  the  crew  was  moving  several 
cars  loaded  with  freight  which  was  wholly  in- 
trastate and  upon  completing  that  movement 
was  to  have  gathered  up  and  taken  to  other 
points  several  other  cars  as  a  step  or  link  in 
their  transportation  to  various  destinations 
within  and  without  the  state.  The  question  of 
law  upon  which  the  Circuit  Court  of  Appeals 
desires  instruction  is  whether  upon  these  facts 
it  can  be  said  that  the  intestate,  at  the  time  of 
his  fatal  injury,  was  employed  in  interstate 
commerce  within  the  meaning  of  the  employers' 
liability  act. 

"Considering  the  status  of  the  railroad  as  a 
highway  for  both  Interstate  and  intrastate  com- 
merce, the  Interdependence  of  the  two  classes 
of  traffic  Ld  point  of  movement  and  safety,  the 
practical  difficulty  in  separating  or  dividing  the 
general  work  of  the  switching  crew,  and  the 
nature  end  extent  of  the  power  confided  to  Con- 
gress by  the  commerce  clause  of  the  Constitu- 
tion, we  entertain  no  doubt  that  the  liability  of 
the  carrier  for  injuries  suGfered  by  a  member  of 
the  crew  in  the  course  of  its  general  work  was 
subject  to  regulation  by  Congress,  whether  the 
particular  service  being  performed  at  the  time 
of  the  injury,  isolatedly  considered,  was  in  inter- 
state or  intrastate  commerce.  Baltimore  &  O. 
R.  Co.  V.  Interstate  Commerce  Commission,  221 
V.  S.  612,  618  [31  Sup.  Ct  621,  66  I*  Ed.  878] ; 
Southern  B.  Co.  v.  United  States,  222  U.  S.  20, 
26  [32  Sup.  Ct  2,  56  L.  Ed.  72];  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New  York, 
N.  H.  &  H.  R,  Co.)  223  U.  S.  1  [32  Sup.  Ct 
169,  66  L.  Ed.  327,  38  U  R.  A.  (N.  S.)  44);  In- 
terstate Commerce  Commission  v.  Goodrich 
Transit  Co.,  224  U.  S.  194,  213  [32  Sup.  Ct 
4.'{6,  56  L.  Ed.  729];  Minnesota  Rate  Cases 
(Simpson  T.  Shepard)  230  U.  S.  352,  432  [33 


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634 


101  ATLANTJO  REPOBTEB 


(Bid. 


Sup.  Ofc  729,  67  L.  Ed.  1511,  L.  R.  A.  (N.  S.) 
1151,  Ann.  Ca&  1918A,  18].  The  dedsion  in 
Employera*  Uability  Oases  (Howard  v.  IllinoiB 
C.  R.  Co.)  207  U.  S.  463  [28  Sup.  Ct  141,  62 
L.  Ed.  297]  is  not  to  the  contrarv,  for  the  act 
of  June  11,  1906  (34  Stat  232,  c.  3073,  U.  S. 
Comp.  Stat.  Supp.  1911,  p.  1316),  there  pro- 
nounced invalid,  attempted  to  regulate  the  lia- 
bility of  every  carrier  in  interstate  commerce, 
whether  by  railroad  or  otherwise,  for  any  in- 
jury to  any  employ^,  even  though  his  employ- 
ment had  no  connection  whatever  with  inter- 
state commerce. 

"Passing  from  the  question  of  power  to  that 
of  its  exercise,  we  find  that  the  controlling  pro- 
vision in  the  act  of  April  22,  1908,  reads  as  t<A- 
lows:  'Hat  every  common  carrier  by  railroad 
while  engaging  in  commerce  between  any  of  the 
several  states  *  •  *  shall  be  liable  In  dam- 
ages to  any  person  suffering  injury  while  he  in 
employed  by  such  carrier  in  such  commerce,  or, 
in  case  of  the  death  of  such  employ^,  to  his  or 
her  personal  representative,  •  •  •  for  such 
injury  or  death  resulting  in  whole  or  in  part 
from  the  negligence  of  any  of  the  officers, 
agents,  or  onploygs  of  such  carrier,  or  by  rea- 
son of  any  defect  or  insufficiency  due  to  its 
negligence  in  its  cars,  engines,  appliances,  ma- 
chinery, track,  roadbed,  works,  boats,  wharves, 
or  other  equipment.'  Giving  to  the  words  'suf- 
fering injury  while  he  is  employed  by  such  car- 
rier in  such  commerce'  their  natural  meaning, 
as  we  think  must  be  done,  it  is  clear  that  Con- 
gress intended  to  confine  its  action  to  injuries 
occurring  when  the  particular  service  in  which 
the  employ^  is  engaged  is  a  part  of  interstate 
commerce.  The  act  was  so  construed  in  Peder- 
sen  V.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S. 
146  [33  Sup.  Ct.  848,  67  L.  Hd.  1125,  Ann. 
Ces.  19140,  163].  It  was  there  said:  'There 
can  be  no  doubt  that  a  right  of  recovery  there- 
under arises  only  where  the  injury  is  suffered 
while  the  carrier  is  engaged  in  interstate  com- 
merce and  while  the  employ^  is  employed  by 
the  carrier  in  such  commerce.'  Again:  'The 
true  test  always  is:  Is  the  work  in  question  a 
part  of  the  interstate  commerce  in  which  the 
carrier  is  engaged?'  And  a  like  view  is  shown 
in  other  cases.  Second  Employers'  Ldability 
Cases  (Mondou  v.  New  York,  N.  H.  &  H.  R. 
CoJ  223  U.  S.  1  [32  Sup.  Ct  169,  56  I*  Ed. 
327,  38  L.  R.  A.  (N.  S.)  44] ;  Seaboard  Air  Line 
R.  Oo.  V.  Moore,  228  U.  S.  433  [33  Sup.  Ct 

680,  57  L.  EM.  907];  St  Louis.  S.  F.  &  T.  R, 
Co.  V.  Scale,  229  U.  S.  156,  158  [33  Sup.  Ct. 
651,  57  L.  Ed.  1129,  Ann.  Cas.  1914C,  156]; 
North  Carolina  R.  Co.  v.  Zachary,  232  V.  8. 
248,  256  [34  Sup.  Ot.  305,  58  L.  Ed.  691.  594, 
Ann.  Cas.  19140,  159];  Grand  Trunk  Western 
R.  Co.  V.  Lindsay,  233  U.  S.  42  m  Sup.  Ct 

681,  68  T^  Ed.  838,  Ann.  Cas.  1914C,  168]. 
"Here  at  the  time  of  the  fatal  injury  the  in- 
testate was  engaged  in  moving  several  cars,  all 
loaded  with  intrastate  freight  from  one  part  of 
the  city  to  another.  That  was  not  a  service  in 
interstate  commerce,  and  so  the  injury  and  re- 
sulting death  were  not  within  the  statute. 
Tliat  he  was  expected,  upon  the  completion  of 
l^at  task,  to  engage  in  another  which  would 
have  been  a  part  of  interstate  commerce,  is  im- 
material under  tlie  statute,  for  by  its  terms  the 
true  test  is  the  nature  of  the  work  being  done 
at  the  time  of  the  injury." 

Jiadse  Dobler,  who  presided  at  the  trial 
below,  followed  the  ruling  of  this  court  in 
B.  &  O.  R.  R.  Oo.  V.  Branson,  128  Md.  678, 
98  Atl.  225.  In  that  case  Branson  suffered 
injury  in  the  shops  at  Cumberland  while  en- 
gaged in  painting  engines  and  cars  used  In 
both  interstate  and  intrastate  commerce,  and 
this    court    allowed    a    recovery    upon    the 


ground  that  the  work  of  painting  these  en- 
gines and  cars  had  a  reasonable  and  sobstan- 
tlal  relati'on  to  Interstate  commerce.  But 
tliat  case  has  been  reversed  by  the  Supreme 
Court  of  the  United  States  (B.  &  O.  v.  Bran- 
son, 242  U.  S.  623,  37  Sup.  Ct  244,  61  U  Ed. 
634),  apparently  upon  the  sole  ground  that 
Branson  was  not  engaged  in  interstate  com- 
merce at  the  time  he  suffered  the  injury. 
The  court  dted  In  support  of  its  condusicMi 
Delaware,  Lackawanna  &  Western  B.  R.  Oo. 
T.  Turkonls,  238  D.  S.  439,  35  Sup.  Ct  802, 
59  L>.  Ed.  1397;  Shanks  t.  Delaware,  Lacka- 
wanna &  Western  B.  B.  Co.,  239  D.  S.  65e, 
36  Sup.  Ct  188,  60  L.  Ed.  436,  li.  B.  A.  1916C, 
797;  Chicago,  Burlington  &  Quincy  B.  R. 
Co.  V.  Harrington,  241  U.  S,  177,  180,  36  Sup. 
Ot  517,  60  L.  Ed.  941. 

For  the  reasons  stated,  the  Judgment  will 
be  reversed,  and,  as  there  can  be  no  recov- 
ery in  this  action,  a  new  trial  will  not  be 
awarded. 

Judgment  reversed,  without  awarding  a 
new  trial. 


030  Md.  635) 

BUOHBB  v.  FEDERAL  BASEBALL  CLTTB 
OP  BALTIMORE,  Inc.  (No.  16.) 

(Court  of  Appeals  of  Maryland.    Jane  26, 1917.) 

1.  CoRPORATTONS  «=»7ft— Stook  Sttbbcsiptioitb 

— AOREKMENTS — BoNTTS. 

Dpfendant,  with  others,  agreed  ns  port  of  an 
nnderwHtine  ngreement  to  subaeribe  shares  of 
prpferrod  stork  in  plaintiff  corporation,  in  c«ni- 
sidprntion  of  shares  of  common  stock  to  be  trans- 
ferred to  him  by  the  directors  in  payment  of 
his  services,  the  subscription  to  the  preferred 
stock  to  be  annulled  and  returned  noon  the  sale 
to  the  public  of  stock  in  a  specified  amonnt. 
Held,  that  the  defendant  could  not  avoid  liabili- 
ty on  his  subscription  on  the  theory  that  the 
contract  was  invalid,  as  providing  for  the  issu- 
ance of  a  boTiuB,  since  a  transfer  by  the  direo 
tors  to  defendant  was  not  the  issaanee  of  stock 
to  defendant  as  a  bonus. 

[Ed.  Note.— For  other  cases,  see  CorporatlonB, 
Cent  Dig.  H  197-209,  213-2ia] 

2.  EVIDENCB    «=»73  — Pmhtomptions  — Cow- 

TBACT8. 

The  appellate  court  will  not  presume  that 
agreement  of  directors  of  corporation  to  contrib- 
ute stock  of  the  corporation  nnder  an  underwrit- 
ing agreement  as  compensation  for  the  services 
of  underwriters  had  not  been  legally  iasned.  In 
order  to  exempt  an  underwriter  from  his  obliga- 
tion under  his  agreement 

[Ed.   Note.— For  other  cases,   see  EMdence, 
Cent  Dig.  I  94.1 

8.  Corporations  «=»90(6)— SxTBSORipnoNa  id 
Stock  — Actions— AMtrssiBixiTT  of  Bvi- 

DENCE. 

In  an  action  against  the  underwriter  of  cor- 
porate stock,  a  subscription  agreement  is  not 
rendered  inadmissible  by  reason  of  the  fact  that 
one  of  the  subscribers,  who  signed  after  defend- 
ant, had  reserved  the  option  of  paying  for  the 
stock  he  was  underwriting  prior  to  the  date  si>ec- 
Ified  in  the  tinderwriting  agreement,  since,  if 
he  exerriaed  his  option,  it  could  not  increase  or 
affect  the  liability  of  the  other  subscribers. 

[Ed.  Note. — For  other  cases,  see  Corporations. 
Cent  Dig.  H  411-416.] 


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4.  cospobations  9=390(6) — scb8cbipti0nb  to 
Stock— Fraud — Evidence. 
In  an  action  against  the  underwriter  of  cor- 

§  orate  stock,  evidence  that  defendant  was  in- 
uced  to  sign  by  representations  and  assurance 
of  secretary  of  the  corporation  that  no  liability 
would  be  incurred,  that  the  corporation,  after 
the  first  baseball  game  of  the  season,  would  have 
money  enough  for  its  needs,  and  that  defendant 
Bigned  the  paper  without  reading  it,  was  proper- 
ly rejected,  as  without  probative  force  on  the  is- 
sue of  fraud. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  §f  411-il6.1 

Si    COBPOBATIONB     <S=80(B)— StJBBORrPTIOWS— 

Fraui>— Statement  or  Fact  ob  Opinion. 
The  statement  by  the  secretary  of  a  base- 
ball club  that  its  gate  receipts  would  be  suffi- 
cient to  meet  its  requirements,  and  thus  relieve 
an  underwriter  of  its  stock  of  liability,  is  not  a 
representation  of  an  existing  fact,  but  only  an 
expression  of  opinion  or  expectation,  which  is 
insufficient  as  a  basis  of  fraud  or  deception. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  IHg.  i  250.] 

6.  CoBroBATioNS  <e=>90(6»  —  Sale  or  Coepo- 
bate  Stock— Actions— Evidence. 

In  an  action  by  a  corporation  against  an  un- 
derwriter and  subscriber  of  its  stock,  evidence 
that  the  underwriting  agreement  was  hypothe- 
cated for  a  loan  held  admissible. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  !S  411-416.1 

7.  COBPOBATIONS  i&=>fl0(6)— Stock  Subbcbip- 
Tioifs  —  Underwriting  Aoreekent  —  Ao- 
T10N8— Admissibility  or  Evidence. 

In  an  action  by  a  corporation  against  an  un- 
derwriter and  subscribers  of  its  capital  stock, 
-evidence  of  the  sales  of  stock  by  the  corpora- 
tion pursuant  to  the  agreement,  prior  to  the 
time  when  the  subscribers  were  called  upon  for 
payment,  was  admissible. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Oent  Dig.  $|  411-416.] 

8.  Evidence  ®=»271(13)  —  Aduissibilttt  — 
Declabations. 

In  an  action  by  a  baseball  corporation 
against  an  underwriter  and  a  subscriber  to  its 
capital  stock,  statements  made  by  the  secretary 
■of  tiie  dub  to  defendant,  after  defendant  was  call- 
ed on  under  the  agreement  to  pay  liis  subscrip- 
tion, were  inadmissible. 

[Ed.   Note.— For  other   cases,   see   Evidence, 
Cent.  Dig.  S  1087.] 

"9.  cobpobationb  ®=>90(c)— subscriptions— 
Actions— Admissibilttt  of  Evidence. 
In  an  action  by  a  baseball  corporation 
against  an  underwriter  and  subscriber  to  its  cap- 
ital stock,  evidence  as  to  defendant's  knowledfie 
of  corporation's  financial  condition  after  defend- 
ant was  called  upon  to  pay  under  hia  agreement 
-held  inadmissible. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  »  411-416.] 

10.  CoBPOBATiONS  ®=>90(6)— Subscriptions- 
Actions— Admissibility  OF  Evidence. 

In  an  action  by  a  baseball  corporation 
•gainst  an  underwriter  and  subscriber  to  its 
capital  stock,  evidence  that  the  secretary  of  the 
club,  who  was  also  one  of  the  underwriters,  had 
not  as  yet  paid  his  subscription,  was  immaterial 
and  inadmisaible. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  {f  411-416.] 

11.  Interest  *=>68  — Stock  Subscriptiok  — 
Question  fob  Jury. 

A  subscription  for  stock  in  a  corporation  un- 
der an  underwriting  agreement  to  be  paid  in 
the  future,  not  being  a  contract  on  which  inter- 
est is  recoverable  as  of  right  the  allowance  of 


interest  on  such  contract  should  be  left  to  the 
Jury,  to  determine  whether,  under  the  circum- 
stances, a  recovery  of  interest  would  be  equita- 
ble and  Just 

[Ed.  Note.— For  other  cases,  lee  Interest 
Cent  Dig.  f  157.] 

12.  Trial  $=3194(11)— Question  fob  Jubt. 
In  an  action  by  a  corporation  against  an 

underwriter  and  subscriber  to  its  stock  for  the 
recovery  of  subscription  price,  an  instruction  al- 
lowing recovery  of  interest  is  erroneous,  as  in- 
vading the  province  of  the  Jury. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  il  45&-460.] 

13.  Appeal  and  Ebbor  $=31144— Dkteruina- 
TioN  and  Disposition  —  Affibmance  iw 
Part  and  Reversal  in  Part. 

In  an  action  by  a  corporation  against  an 
underwriter  and  subscriber  to  its  capital  stock 
for  the  amount  of  the  subscription,  where  the 
court  erroneously  by  instruction  allowed  the 
recovery  of  interest,  but  plaintiff  thereafter  of- 
fered to  waive  the  interest  allowed  by  the  Jury, 
and  to  accept  the  amount  of  the  sul>scription 
without  interest,  the  court  on  appeal  will  affirm 
the  judgment  for  the  recovery  of  the  principal, 
and  remand  the  cause  for  new  trial  as  to  the  al- 
lowance of  interest 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S  4479.] 

Appeal  from  Superior  Court  of  Baltimore 
City;  James  M.  Ambler,  Judge. 

"To  be  officially  reported." 

Action  by  the  Federal  Baseball  Club  of  Bal- 
timore, Incorporated,  against  Frederick  Buch- 
er.  Judgment  for  plalntlfT,  and  defendant  ap- 
peals. Affirmed  In  part,  and  reversed  In 
part,  and  new  trial  awarded. 

Argued  before  BOYD,  G.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  DRNEB, 
and  STOCKBRIDGB,  JJ. 

William  G.  Towers  and  William  P.  liyons, 
both  of  Baltimore,  for  appellant,  tu  Edwin 
Goldman  and  Frank  B.  Ober,  both  of  Balti- 
more (Ritchie  &  Janney,  of  Baltimore,  on  the 
brief),  for  appellee. 

UBNER,  J.  An  nnderwriting  agreement 
between  the  Federal  Baseball  Club  of  Balti- 
more, Incorporated,  and  a  number  of  persona, 
Including  the  appellant,  recited  that  the  cor- 
poration had  then  outstanding  capital  stodc 
to  the  amount  of  $150,000  preferred  and 
$150,000  common  stock,  and  was  desirous  of 
raising  money  for  nse  as  working  capital  for 
the  ensuing  year,  and  proposed  to  obtain  the 
necessary  funds  by  Increasing  its  capital 
stock  to  $250,000  preferred  and  $250,000  com- 
mon stock,  the  preferred  to  be  offered  to  the 
stockholders  at  par,  with  snch  bonus,  if  any, 
of  common  stock  as  might  be  determined  by 
the  board  of  directors,  bat  that,  as  the  time 
was  deemed  unfavorable  for  offering  the  new 
stock  to  the  stockholders  and  the  public,  the 
corporation  had  requested  the  other  parties 
to  the  agreement  to  underwrite  the  stock  on 
the  terms  thereinafter  prescribed,  the  under- 
writing, when  completed  to  the  amount  of 
$25,000,  to  be  effective  and  binding,  and  to 
be  used  by  the  corporation  for  the  purpose  of 


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borrowing  money  thereon  to  the  extent  of  Its 
requirements.  The  agreement  then  provided 
that  each  of  the  underwriters  thereby  sub- 
scribed for  the  number  of  shares  of  the  pre- 
ferred stock  of  the  corporation  set  opposite 
bis  name,  and  obligated  hhnself  to  pay  there- 
for at  the  rate  of  $10  per  share  as  and  when 
3;)ayment  should  be  called  for  by  notice  in 
writing  from  the  treasurer  of  the  corporation, 
but  such  calls  to  be  made  in  no  event  prior 
to  July  1,  1915.  It  was  further  agreed  that 
the  underwriting  might  be  hypothecated  by 
the  corporation  with  any  bank  or  trust  com- 
pany. There  was  a  provision  that  the  base- 
ball club  should  have  the  exclusive  right  to 
offer  the  stock  to  its  stockholders  and  the 
public  "until  the  dissolution  of  the  underwrit- 
ing on  July  1, 1915,"  and  the  agreement  then 
proceeded  as  follows: 

"And  in  coDsideration  of  such  services  render- 
ed by  the  subscribers,  said  Federal  Baseball 
Club  of  Baltimore,  locorporated,  does  hereby 
agree  that  upon  the  sale  of  said  stock  to  the 
amount  subscribed  for  hereunder  to  Its  stockhold- 
ers or  to  the  public,  said  subscription  obliga- 
tions shall  be  returned  and  the  said  underwrit- 
ers shall  each  receive  as  compensation  for  their 
said  services  50  per  cent,  of  the  par  amount  of 
their  subscriptions  herein  in  common  stock  of 
the  corporation,  the  same  having  been  contrib- 
uted for  this  purpose  by  the  directors,  and  that 
all  sales  of  stock  effected  as  aforesaid  shall  be 
applied  ratably  on  said  subscriptions." 

The  appellant  was  one  of  25  underwriters, 
each  of  whom  signed  the  agreement  as  a  sub- 
Bcriber  for  $1,000  of  the  preferred  stock  at 
its  par  value.  By  the  hypothecation  of  the 
underwriting  with  the  Baltimore  Trust  Com- 
pany a  loan  was  obtained  by  the  Baseball 
Club  to  the  amount  of  $25,000.  The  eftorts 
of  the  club  to  dispose  of  the  new  issue  of  pre- 
ferred stock  resulted  in  the  sale  of  only  129 
shares,  apart  from  those  taken  by  nnderwrit- 
era,  two  of  whom  paid  for  and  received  the 
full  amount  for  which  they  subscribed.  The 
other  23  subscriptions  were  reduced  ratably, 
as  provided  by  the  agreement,  as  the  result 
of  the  sales  of  stock  made  by  the  club  subse- 
quent to  the  underwriting.  As  the  amount 
realized  from  such  sales  at  par  was  $1,290, 
the  obligation  of  each  of  the  subscribers  was 
reduced  from  $1,000  to  $943.92,  and  each  of 
them  was  notified  In  writing  by  the  treasurer 
of  the  club  to  pay  that  sum  on  August  15, 
1915,  in  pursuance  of  a  resolution  to  that  ef- 
fect passed  by  the  board  of  directors.  The 
payment  thus  requested  of  the  appellant  hav- 
ing been  refused,  he  was  sued,  in  this  action, 
and  a  Judgment,  on  the  verdict  of  a  Jury,  was 
recovered  against  Mm  for  the  amount  claim- 
ed, with  interest. 

There  are  seven  bills  of  exception  in  the 
record.  Hie  first  exception  was  taken  to  the 
admission  in  evidence  of  the  underwriting 
contract.  It  is  contended  that  the  agreement 
Is  invalid  and  inadmissible,  because  of  Its 
provision  that  the  underwriters  should  re- 
ceive, as  compensation  for  their  services,  com- 
mon stock  of  the  baseball  club  to  the  amount 
of  60  per  ceat.  of  their  subscriptions  for  its 


preferred  stock.  This  objection  is  founded  on 
the  theory  that  the  agreement  provided  for 
the  issuance  of  bonus  stock  to  the  subscrib- 
era,  in  the  amounts  specified,  and  that  such 
an  undertaking  Is  illegal,  and  renders  the 
subscription  void  and  unenforceable.  The 
principle  applied  In  the  case  of  Trent  Import 
Co.  V.  Wheelwright,  118  Md.  249,  84  Atl.  543, 
is  invoked  in  support  of  this  contention.  In 
the  case  cited  a  subscription  for  preferred 
stock,  with  a  50  per  cent,  bonus  of  common 
stock,  in  a  New  York  corporation,  was  held 
to  be  invalid  under  the  laws  of  that  state.  It 
is  urged  that  the  law  of  Maryland  also  pro- 
hibits such  contracts  upon  the  part  of  corpo- 
rations created  under  our  statutes.  Whether 
this  view  is  correct  in  its  general  theory  Is  a 
question  which  need  not  now  be  decided,  be- 
cause, if  the  principle  assertekJ  be  assumed  to 
be  operative  in  this  state,  we  are  satisfied 
that  it  does  not  apply  to  the  special  terms  of 
the  agreement  Involved  in  this  suit. 

[1]  The  common  stock,  to  be  received  by 
the  subscribers  for  preferred  stock  under  the 
present  contract,  was  not  to  be  issueSd  by  the 
corporation,  and  was  not  intended  to  be  a  bo- 
nus. It  was  contributed  by  the  members  of 
the  board  of  directors  as  a  compensation 
to  the  underwriters  for  their  services  in  that 
capacity.  By  the  terms  of  the  agreement 
they  were  to  receive  the  stated  amounts  of 
common  stock  only  in  the  event  that  the  cor- 
poration succeeded  in  selling  the  preferred 
stock  for  which  they  had  subscribed.  If  that 
contingency  had  actually  occurred,  the  sub- 
scription obligations  were  to  have  been  re- 
turned an'd  the  un'derwriting  dissolved.  The 
subscribera  would  then  have  been  relieved  of 
the  liability  they  had  assumed,  and  would 
have  received  no  preferred  stock  under  the 
agreement,  but  wouid  have  been  entitled  to 
the  common  stock  contributed  by  the  'direct- 
ora  as  compensation  for  the  service  rendered 
in  the  underwriting  transaction.  The  argu- 
ment for  the  appellant  on  this  point  proceeds 
upon  the  theory  that  the  contribution  of  the 
common  stock  by  the  directors,  to  which  the 
agreement  referred.  In  fact  represented  the 
direct  issuance  of  the  stock  by  the  corpora- 
tion to  the  underwritera  We  do  not  feel  at 
liberty  to  make  such  an  assumption.  It  Is 
not  in  accord  with  the  meaning  of  the  lan- 
guage used  in  the  agreement,  and  we  have  no 
reason  to  assume  that  the  statements  of  fact 
therein  maUe  are  incorrect  in  any  particular. 
When  the  agreement  was  executed,  $150,000 
of  common  stock  had  previously  been  Issued, 
and  it  was  some  of  this  stock,  apparently, 
that  was  owned  and  contributed  by  the  di- 
rectors. If  it  had  been  intended  to  compen- 
sate the  underwritere  with  some  of  the  un- 
issued common  stock  of  the  corporation,  that 
purpose  would  have  been  expressed  by  a  sim- 
ple provision  for  the  Usitanoe  of  the  stock  for 
that  purpose.  There  would  have  been  no  oc- 
casion to  recite  the  contribution  of  the  stock 
from  the  source  Indicated. 


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[2]  The  opinion  in  Trent  Import  Co.  V. 
Wheelwright,  supra,  distinguished  the  ruling 
in  that  case  from  the  decision  in  Maries 
Carved  Moulding  Co.  y.  Stnlb,  216  Pa.  91,  64 
Atl.  431,  where— 

"the  defense  of  a  subBcriber  that  certain  shares, 
which  he  was  to  receive  in  conjunction  with 
those  for  which  he  had  subscribed,  were  to  be  il- 
legally issued  as  a  bonus,  was  disallowed,  but  it 
was  pointed  out  that  the  stock  was  to  be  trans- 
ferred to  the  subscriber  by  a  third  party,  to 
whom  it  had  been  lawfully  issued,  and  not  by 
the  corporation." 

There  is  nothing  In  this  record  to  show 
that  the  stock  contributed  by  the  directors  for 
the  compensation  of  the  anderwriters  had 
not  been  legally  issned,  and  we  have  no 
reason,  therefore,  to  adopt  such  a  theory 
for  the  purpose  of  exempting  the  appellant 
from  his  contractual  obligation. 

[3]  The  admissibility  of  the  subscription 
agreement  was  disputed  also  on  the  ground 
that  one  of  the  subscribers,  who  signed  after 
the  appellant,  made  a  written  reservation  of 
the  privilege  of  withdrawing  any  part  of  the 
$1,000  of  preferred  stock  he  was  underwrit- 
ing, "together  with  the  bonns  stock,"  at  any 
time  prior  to  July  1,  1915.  It  Is  argued  that 
a  subscription  thus  qualified  is  not  In  ac- 
cordance with  the  agreement,  and  hence  is 
not  to  t>e  considered  as  meeting  In  part  the 
provlBion  that  the  obligation  should  become 
effective  when  the  nnderwriting  was  com- 
pleted to  the  amount  of  $26,000.  With  this 
subscription  thus  eliminated,  the  theory  is 
that  underwriting  to  the  prescribed  amount 
has  never  been  procured,  and  that  the  agree- 
ment has  therefore  never  become  effective. 
The  reservation  by  a  8ttb8crll>er  of  the  priv- 
ilege of  paying  for  his  stock  l>efore  the  time 
when  the  underwriting  was  intended  to  be 
dissolved  did  not  relieve  him  of  his  equal 
obligation  under  the  contract,  but  gave  him 
the  option  to  meet  and  satisfy  bis  liability  be- 
fore it  matured.  The  exercise  of  such  an  op- 
tion could  not  increase  the  resi)onsibillty  of 
the  other  subscribing  parties.  It  could  only 
have  the  effect  of  reducing  the  total  of  the 
amounts  for  which  they  were  severally  bound. 
The  right  was  reserved  by  the  corporation 
to  sell  prior  to  July  1, 1916,  to  the  stockhold- 
ers, or  the  public,  any  or  all  of  the  stock  un- 
derwritten by  the  agreement,  and  in  view 
of  the  provision  to  that  effect,  and  of  the 
evident  design  that  the  stock  should  be  sold, 
If  possible,  the  option  in  question,  append- 
ed by  one  of  the  subscribers,  would  appear 
to  have  been  superfluous.  It  was  certain- 
ly Immaterial,  so  far  as  the  practical  rights 
and  interests  of  the  other  underwriters  were 
concerned. 

[4]  The  second,  seventh,  eighth,  ninth,  and 
tenth  exceptions  refer  to  offers  of  testimony 
by  the  appellant  as  a  witness  in  bis  own  be- 
balf  to  prove  that  his  subscription  was  ob- 
tained by  fraud.  It  was  admitted  by  the 
appellant  that  he  signed  the  paper  and  en- 
tered "$1,000"  with  his  own  hand  in  the 
column  headed  "Amount  at  Par  Value  of 


Preferred  Stock  Subscribed  For^ ;  but  he  d» 
sired  to  testify  in  substance  that  he  was  In- 
duced to  sign  by  the  representation  and  as- 
surance of  the  appellee's  secretary  that  no 
liability  would  be  thereby  incurred  by  the  ap- 
pellant, and  that  the  only  object  of  the  paper 
was  to  tide  the  baseball  club  over  the  first 
game  of  the  season,  after  which  it  would 
have  enou^  money  for  its  needs,  and  that 
he  signed  the  paper  without  reading  it,  and 
la  reliance  upon  the  secretary's  statement 
as  to  the  purpoae  for  whldi  it  was  to  be 
used.  The  trial  court  ruled  in  effect  that  the 
testimony  thus  proffered  was  immaterial,  and 
without  probative  force  upon  the  issue  of 
fraud,  to  which  it  was  directed.  With  this 
view  we  fully  agree.  By  the  appellant's  ad- 
mission that  he  understood  the  paper  he 
signed  was  to  be  used  for  the  purpose  of 
raising  money,  and  that  he  personally  wrote 
after  his  signature  the  amount  of  his  sub- 
scription, it  is  settled  beyond  question  that 
he  was  not  misled  as  to  the  fact  and  measure 
of  the  liability  he  was  thereby  assuming. 

[5]  In  view  of  his  conceded  knowledge  as 
to  the  object  for  which  his  signature  was 
being  obtained,  he  is  not  entitled  to  Impeach 
for  fraud  the  obligation  into  whldi  he  enter- 
ed merely  because  he  did  not  read  the  paper, 
and  was  assured  that  the  corporation  to  which 
he  was  lending  his  credit  would  realize  enough 
money  from  its  operations  to  repay  the  loan 
he  was  thus  aiding  it  to  procure.  The  state- 
ment by  the  secretary  of  the  baseball  dub 
that  its  gate  receipts  would  be  sufficient  to 
meet  its  requirements,  and  thus  relieve  the 
appellant  ol  any  liability  on  account  of  his 
signature,  was  not  a  representation  of  an 
existing  fact,  but  only  an  expression  of  opin- 
ion or  expectation,  upon  which  he  was  not 
justified  in  placing  reliance,  and  which  is  an 
insufficient  basis  for  a  charge  of  fraud  and 
deception.  Robertson  v.  Parks,  76  Md.  132,  24 
AtL  411;  Boulden  v.  Sttlwell,  100  Md.  562, 
60  Atl.  609,  1  L.  R.  A.  (N.  8.)  258;  HaU  v. 
Brown,  126  Md.  178,  94  AU.  530.  The  case 
of  McGrath  v.  Peterson,  127  Md.  412,  96  AtL 
551,  cited  by  the  appellant,  was  widely  differ- 
ent in  its  facts  from  the  one  now  under  re- 
view. 

[•,  7]  The  third  and  fourth  exceptions  were 
taken  to  the  admission  of  proof  that  the  un- 
derwriting agreement  was  hypothecated  by 
the  baseball  club  for  a  loan  of  $25,000,  and 
the  fifth  and  sixth  exceptions  opposed  the 
introduction  of  evidence  as  to  sales  of  stock 
by  the  corporation,  under  the  agreement, 
prior  to  the  time  when  the  8ut>8criber8  were 
called  on  for  payment  There  was  no  error 
in  these  ruUngs. 

[I,  S]  The  eleventh  and  twelfth  exceptions 
refer  to  the  exclusion  of  testimony  by  the  ap- 
pellant as  to  statements  made  to  him  by  the 
secretary  of  the  baseball  club  after  the  no- 
tice for  payment  was  issued.  The  subsequent 
representations  thus  sought  to  be  proven  were 
immaterial  under  the  issues  joined,  as  was 
also  the  knowledge  then  possessed  by  the 


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appellant,  and  offered  to  be  proven  nnder 
the  thirteenth  exception,  as  to  the  appellee's 
financial  condition. 

[10]  An  offer  to  prove,  as  shown  b7  the 
fourteenth  bill  of  exception,  that  the  secre- 
tary of  the  club,  who  was  also  one  of  the 
underwriters,  had  not  as  yet  paid  his  sub- 
scription, was  properly  refused,  as  that  fact, 
if  proven,  would  have  been  clearly  immate- 
rial. 

The  only  remaining  bill  of  exceptions  re- 
lates to  the  instructions.  Those  granted  at 
the  request  of  the  plaintiff  are  said  to  be  ob- 
jectionable, because  they  disregarded  the  is- 
sue of  fraud  raised  by  the  pleadings.  We 
find  no  evidence  in  the  record  legally  suf- 
ficient to  warrant  the  submission  of  that 
question  to  the  Jury.  It  was  testified  by  the 
defendant  that,  when  he  was  asked  to  sign 
the  agreement,  he  was  told  by  the  secretary 
that  the  baseball  club  had  made  $8,000  the 
previous  year,  but  had  to  advance  that  sum 
to  the  players.  The  secretary  was  then  called 
as  a  witness  by  the  defendant,  and  stated 
that  he  had  no  exact  knowledge  on  the  sub- 
ject, but  he  believed  that  the  club  had  lost  a 
little  money  the  preceding  year.  This  wit- 
ness, upon  whom  the  defendant  relied  for  the 
rather  indefinite  proof  Just  mentioned,  testi- 
fied also  that  he  made  no  statement  to  the 
defendant,  on  the  occasion  of  his  signing  the 
subscription,  as  to  the  club's  earnings  the 
year  before,  except  that  it  had  not  prospered, 
and  hence  found  it  necessary  to  raise  some 
money  by  the  proposed  underwriting.  As,  ac- 
cording to  the  defendant's  own  testimony, 
he  knew  that  the  profits  of  the  former  season 
had  been  expended,  and  that  the  club  was  In 
actual  need  of  funds  to  continue  its  opera- 
tions, we  can  have  no  doubt  as  to  the  legal 
insufficiency  of  the  evidence  offered  in  sup- 
I>ort  of  the  issue  of  fraud.  The  defendant's 
prayers  were  properly  refused.  They  are 
based  upon  theories  which  we  have  discussed 
In  ruling  upon  other  exceptions. 

[11]  One  of  the  Instructions  granted  at 
the  plaintiff's  Instance  was  to  the  effect  that. 
If  the  Jury  should,  find  In  favor  of  the  plain- 
tiff, their  verdict  sbonld  be  for  the  amount 
due  on  the  defendant's  subscription,  with  in- 
terest from  August  15,  1915 ;  that  being  the 
date  designated  In  the  call  for  payment  Ob- 
jection is  made  to  this  instruction,  because 
it  directs  the  allowance  of  interest  from  the 
date  mentioned,  instead  of  leaving  that  ques- 
tion to  the  Jury's  discretion.  It  was  held  in 
the  case  of  Frank  v.  Morrison,  65  Md.  40S, 
that: 

"A  eabscription  for  stock  in  a  corporation,  to 
be  paid  for  in  installments,  is  not  aucb  a  con- 
tract as  falls  witbin  the  class  of  those  on  which 
interest  is  recoverable  as  of  right." 

In  thus  ruling  the  court  said  that: 

"While  there  are  cases  in  which  interest  is  re- 
coverable as  of  right,  such  as  bonds,  contracts 
in  writing  to  pay  money  on  a  day  certain,  such 
as  bills   of   exchange  or   promissory   notes,   or 


contracts  for  the  payment  of  interest,  or  where 
the  money  claimed  has  been  actually  ased,  yet 
with  such  exceptions  it  has  long  been  the  setued 
practice  of  the  courts  of  this  state  to  refer  the 
question  of  interest  entirely  to  the  jury,  who 
may  allow  it  or  not  in  the  shape  of  damages, 
according  to  the  equity  and  justice  appearing 
between  the  parties,  on  a  consideration  of  all 
the  circumstances  of  the  particular  case  as  dis- 
closed at  the  trial." 

[12]  By  virtue  of  this  rule  of  practice,  a 
granted  prayer  in  the  ca«e  cited,  directing 
the  allowance  of  Interest,  was  held  to  be  er- 
roneous. The  same  principle  applies  to  the 
instruction  now  ,tander  consideration.  It 
should  properly  have  left  to  the  jury's  dis- 
cretion the  question  as  to  whether  Interest 
should  be  added  to  the  principal  sum  claimed. 

[13]  Before  the  entry  of  the  ai^peal  an  of- 
fer was  made  by  the  plaintiff  to  the  defend- 
ant, as  shown  by  the  record,  to  waive  the  In- 
terest allowed  by  the  jury,  and  to  accept  set- 
tlement on  the  basis  Of  a  verdict  and  Judg- 
ment for  $&13.92,  being  the  amount  due  on  the 
subscription,  without  interest  This  offer 
does  not  appear  to  have  been  accepted.  The 
verdict  was  for  the  sum  of  $1,011.15,  whidi 
is  evidently  made  up  of  the  principal  debt 
and  Interest  thereon  from  the  time  it  was 
payable  to  the  date  of  the  trial.  There  is  no 
difiSculty,  therefore.  In  s^aratlng  the  inter- 
est from  the  total  amount  of  the  Judgment 
By  section  22a  of  article  6  of  the  Code  Of 
Public  Civil  Laws,  as  enacted  by  chapt^ 
248  of  the  Acts  of  1914,  it  Is  provided: 

"If  it  appears  to  the  Court  of  Appeals  that  a 
reversible  error  affects  a  severable  item  or  part 
only  of  the  matters  in  controversy,  the  court 
may  direct  final  judgment  as  to  the  remaining 
parts  or  items  thereof,  and  may  direct  a  new 
trial  as  to  the  said  severable  part  or  item  only." 

In  pursuance  of  this  provision  the  Judg- 
ment will  be  reversed  only  to  the  extent  of 
the  interest  Item  It  includes,  as  to  whldi  a 
new  trial  will  be  awarded,  and  as  to  the  re- 
maining amount  of  the  Judgment.  $943.92,  It 
win  be  affirmed,  and  directed  to  be  finally  en- 
tered. 

Judgment  affirmed  in  part,  and  reversed  in 
part,  and  new  trial  awarded;  the  appellant 
to  pay  the  costs. 


(UO  Hd.  6es> 
WILMEE  V.  PHILADEIiPHiA  &  READING 
COAL  &  IKON  CO.     (No.  4.) 

(Court  of  Appeals  of  Maryland.    June  26, 1917.) 

1.  Injunction  ®=>118(6)  —  AcTtoNS  fob  Ik- 
junction— PtEAniNO — Exhibits. 
Where  plaintiff  sued,  as  substituted  trustee 
of  an  insane  cestui  que  trust  under  a  will,  for 
an  accounting  for  mmerals  removed  from  land 
in  which  the  cestui  que  trust  had  an  interest, 
and  to  enjoin  the  further  removal  of  minerals, 
but  did  not  file  with  bis  bill  copies  of  the  will 
and  of  the  order  appointing  him  as  trustee,  an 
injunction  could  not  properly  have  been  granted, 
as  tlie  court  could  not  accept  plaintiff's  con- 
struction of  tbe  will,  e8i>ecially  where  it  ap- 
peared  that  defendant   was   daiming  nnder   a. 


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WILMER  V.  PHILADELPHIA  A  READINa  COAL  A  IROK  00. 


639 


lease  purporting  to  be  signed  by  the  committee 
of  the  estate  cl  the  cestai  que  trust. 

[Ed.  Note.— For  other  cases,  see  Injunction, 
Cent.  Dig.  §  242.] 

2.  Tbusts  «=a251— Actionb  bt  Tbustkes— 
Dbfenses— Payment  to  Cestui  Que  Tkust. 
Where  an  insane  cestui  que  trust  of  an  in- 
terest in  land  had  received  the  benefit  of  the 
lease,  equity  could  not  permit  his  trustee  to 
recover  tor  the  removal  of  the  minerals  because 
of  some  defect  in  the  execution  of  the  lease,  or 
because  the  payments,  were  made  through  the 
committee  of  the  estate  of  the  cestui  que  trust, 
and  not  through  the  trustee. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  f  357.] 

8.  Evidence    *=»43(3)  —  Judicial    Notice  — 

Pboceedinob  in  Otheb  Suits. 
The  Court  of  Appeals  is  not  required  to  ig- 
nore facts  appearing  in  its  records  in  a  different 
case,  to  whidi  plaintiff  and  defendant  were  par- 
ties and  in  which  the  same  lease  was  involved. 

[Ed.   Note.— For   other   cases,   see   Elvidence, 
Cent.  Dig.  f  64.] 

4.  AfPEAi.  and  Ebbob  ^s>518(5)  —  RacoBD  — 

Mattebs  Included— Exhibits. 
A   statement  giving  the   purport  and  sub- 
stance of  an  exhibit  filed  with  the  bill  was  im- 
properly included   in   the   record,    unless   such 
statement  was  itself  filed  with  the  bill. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {$  2348-2350.] 

6.  Tbusts  e=»237— Ratification  or  TJnau- 
TBOBiZKD  Actb— Ratification  bt  Coubt. 

Where  the  same  person  was  trustee  under  a 
will  creating  a  trust  and  committee  of  the  es- 
tate of  the  usane  cestui  que  trust,  and  as  trus- 
tee he  acquiesced  in  a  lease  executed  by  him  as 
committee  and  which  should  have  been  executed 
as  trustee,  the  court  had  power  to  ratify  his  act, 
even  after  the  bringing  of  a  suit  by  his  successor 
as  trustee  for  an  accounting  for  miner^  re- 
moved under  the  lefise. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
IHg.  a  325,  344.] 

&  Insane  Pbbsons  «s>71  —  Leases  —  Enxoi 

OF  Ibbeoulabities. 
If  the  court  authorized  the  c(Hnmittee  of  an 
insane  person  to  execute  a  mining  lease,  the 
informal  execution  of  it,  or  its  failure  to  recite 
such  authorization,  did  not  justify  a  second 
recovery  of  the  rents  and  profits  from  the  lessee. 

[Ed.  Note. — For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  {§  118-124.] 

7.  Insane  Persons  ^371— Leases— Vaxiditt 
—Law  GovEnNiNG. 

The  powers  of  a  committee  of  an  insane  per- 
son appointed  in  Maryland  over  property  in 
Pennsylvania,  and  the  effect  of  a  lease  of  prop- 
erty in  Pennsylvania  executed  by  him,  depend 
upon  the  laws  and  decisions  of  Pennsylvania. 
•  [Ed.  Note. — For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  §§  118-124.] 

8.  CouBTs  €=>18  —  JuBiSDicTioN  —  Location 
or  Real  Pbopertt. 

Where  a  substituted  trustee  under  a  will 
brought  a  suit  for  an  accounting  for  minerals 
taken  from  land  in  which  his  cestui  que  trust 
had  an  interest,  and  it  appeared  that  the  miner- 
als were  so  taken  under  a  lease  executed  for 
the  cestui  que  trust  by  a  committee  of  his  estate, 
the  title  of  the  property  under  the  lease  was 
so  directly  involved  that  a  court  of  Maryland 
conid  not  properly  determine  the  questions  in- 
volved, the  land  being  situated  in  Pennsylvania, 
as  the  validity  of  the  lease,  and  not  the  question 
of  accounting,  was  the  primary  question. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  §$  50-68.] 


9.  Tbusts  «=>261  —  Actions  bt  Tbustxb  — 
Pleading. 

Where  a  substituted  trustee  under  a  will 
brought  suit  for  an  accounting  for  minerals 
taken  from  land  in  which  his  cestui  que  trust 
had  an  interest  between  the  years  1890  and 
1899,  and  it  appeared  that  plaintiff  was  him- 
self one  of  the  lessors  in  a  lease  of  the  land  ex- 
ecuted in  1899  and  was  presumably  familiar 
with  the  facts,  be  would  not  be  permitted  to  as- 
sert such  a  stale  claim  without  alleging  some 
explanation  of  his  own  delay  for  two  ^ears  in 
bringing  suit,  or  for  the  inaction  of  his  prede- 
cessor for  nearly  a  quarter  of  a  century. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  i  371.] 

10.  Tbusts  ^9261  —  Actions  bt  Xbubtkb— 
Fisadino. 

If  plaintiffs  cestui  que  trust  had  not  receiv- 
ed his  share  of  the  profits  of  the  mining  opera- 
tions, or  if  plaintiff  could  not  ascertain  whether 
the  cestui  que  trust  had  or  had  not  received 
such  profits,  he  should  have  so  alleged  in  hia 
bill. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  f  371.] 

11.  Tbusts  «=»261— Aonons  bt  Tbustkb  — 
Pleading. 

Where,  in  a  suit  by  a  substitnted  trustee  of 
an  insane  cestui  que  trust  for  an  accounting  for 
minerals  taken  from  land  in  which  the  cestui 
que  trust  had  an  interest  it  appeared  -that  a 
trustee  and  a  committee  were  both  named  for 
the  cestui  que  trust,  and  that  for  a  large  por- 
tion of  the  time  the  same  person  was  named  as 
both,  plaintiff  could  not  rdj;  on  general  allega- 
tions as  to  himself  and  hia  predecessor,  but 
should  definitely  allege  whether  the  cestui  que 
trust's  share,  or  any  imrt  of  it,  had  been  paid 
to  plaintiff's  predecessor  as  committee,  or  to 
any  one  else. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  I  371.] 

12.  Mines  and  Minkbals  iS=>52— Injunotioit 
— cotbnants. 

The  taking  of  minerals  from  land  will  not 
be  enjoined  at  the  suit  of  a  party  claiming  only 
a  comparatively  small  interest  in  the  land, 
where  an  injunction  might  do  the  defendant 
great  injustice,  and  no  good  ground  for  such  a 
drastic  proceeding  appears,  especially  as  the 
remedy  by  injunction  in  favor  of  a  cotenant  is 
si>aringly  exercised. 

[Ed.  Note.— For  other  cases,  see  Mine*  and 
Minerals,  Cent  Dig.  U  142-146.] 

Appeal  from  drcnit  Court  No.  2  of  Bald- 
more  City ;   Carroll  T.  Bond,  Judge. 

Suit  by  Edwin  M.  WUmer,  substituted  trus- 
tee, etc.,  against  the  Philadelphia  &  Reading 
Coal  &  Iron  Company.  From  a  decree  sus- 
taining the  demurrer  and  dismissing  the  bill, 
plaintiff  appeals.    AfSrmed. 

See,  also,  124  Md.  599,  93  AO,  157. 

Argued  before  BOYD,  C.  J.,  and  BRISOOB, 
THOMAS,  URNER,  and  STOCKBRIDGE,  JJ. 

David  Ash,  of  Baltimore,  for  appellant 
Ralph  Robinson,  of  Baltimore,  for  appellee. 

BOYD,  C.  J.  This  is  an  appeal  from  a  de- 
cree sustaining  a  demurrer  to,  and  dismiss- 
ing, an  amended  bill  of  complaint,  filed  by 
the  appellant  against  the  appellee.  The 
plaintiff  alleges  that  he  is  the  duly  substi- 
tuted trustee  under  the  will  of  Jane  H. 
Nicholas  for  the  purposes  of  the  trust  there- 
in created,  by  an  order  of  circuit  court  No. 


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101  ATLANTIC  BEPORTBR 


Qii. 


2  of  Baltimore  City,  passed  the  12th  day  of 
July,  1013,  and  that  the  defendant  (appellee) 
Is  a  foreign  corporation  "engaged  in  the  busi- 
ness of  mining,  transporting,  and  selling  coal 
and  other  mine  products,  with  offices  located 
In  the  city  of  Baltimore,  and  transacting 
business  In  said  dty";  that  by  the  terms  of 
the  will  of  Jane  H.  Nicholas,  who  was  the 
owner  of  a  one-sixth  fee-simple  interest  In 
certain  laud  situated  In  Schuylkill  county, 
Pa.,  described  in  an  indenture,  a  copy  of 
which  Is  filed,  her  estate  was  divided  into 
six  equal  parts,  one  of  which  devolved  upon 
the  plaintiff  as  such  substituted  trustee,  for 
the  benefit  of  Philip  N.  Nicholas,  for  the  term 
of  his  natural  life,  he  being  stiU  living ;  that 
the  signature  of  George  C.  Nicholas,  the  al- 
leged committee  of  Philip  N.  Nicholas,  to 
said  indenture,  by  his  alleged  attorney,  was 
unauthorized ;  and  that  It  was  Incompetent 
for  said  alleged  committee  so  to  lease  said 
land,  without  leave  of  the  court  first  had  and 
obtained. 

It  Is  then  alleged  that  by  the  terms  ot  the 
will  an  undivided  fee-simple  Interest  in  said 
land  had  devolved  upon  the  plaintiff,  as  ten- 
ant in  common  with  certain  other  cotenants 
therein,  the  defendant  being  one  of  them; 
that  the  defendant  had  occupied  said  land 
from  the  Ist  of  January,  1890,  the  time  of 
the  death  of  said  Jane  H.  Nicholas,  or  prior 
thereto,  to  the  present  time,  mining  the  same, 
and  since  said  date  opened  new  mines  there- 
on without  the  leave  of  the  plaintiff,  or  any 
predecessor  of  his  in  title,  and  received  the 
rents,  issues,  and  profits  thereof,  which 
amounted  to  a  great  sum  of  money,  after  the 
deduction  of  all  necessary  expenses  in  the 
operation  of  the  mines,  and  used  the  same 
for  the  purposes  of  its  mining  business,  and 
for  the  erection  and  occupation  of  works  and 
houses  thereon,  and  has  encroached  upon  the 
rights  of  the  plaintiff,  its  cotenant  in  the 
premises,  as  herein  more  particularly  set 
forth,  without  leave,  license,  or  warrant  in 
law,  and  without  any  contract  or  lease  with 
or  on  behalf  of  the  plaintiff,  or  any  prede- 
cessor of  him  in  said  trust;  that  the  de- 
fendant has  been  and  still  Is  mining  large 
quantities  of  coal  and  other  products  of  said 
land  from  mines  already  opened  prior  to  the 
1st  of  January,  1890,  and  prior  to  the  date 
of  the  alleged  indenture,  and  from  mines 
opened  subsequent  to  said  dates,  etc. 

It  is  further  alleged  that  defendant  is 
still  using  and  otherwise  disposing  of  the 
coal  and  products  of  mining  taken  from  said 
land,  as  well  as  the  land  Itself,  and  has 
erected  buildings,  tracks,  and  machinery 
thereon,  and  has  otherwise  wrongfully  used 
said  land  continuously,  year  after  year,  to 
the  present  time,  "to  the  exclusion  of  your 
orator  from  his  rights  therein  and  in  utter 
disregard  of  said  rights,  to  the  great  loss  and 
damage  of  and  to  said  trust  estate,  and  the 
depletion  of  the  coal  and  other  mineral  de- 
P(^ts  upon  sold  land,  and  the  value  of  said 


land,  and  has  unwarrantably  leased  and  an- 
dertnken  to  lease  portions  of  said  land  for 
other  purposes  than  mining  to  strangers  to 
this  plaintiff,  who  have  no  privity  of  con- 
tract with  your  orator."  It  Is  alleged  that 
plaintiff  had  demanded  an  accounting,  bat 
the  defendant  bad  failed  to  account  to  bim, 
or  any  predecessor  of  him,  in  the  premises, 
for  any  part  of  the  rents,  is.sues,  or  profits 
of  said  land,  or  for  any  matter  of  account 
whatsoever,  since  the  1st  of  January,  1890. 

The  bill  prays  for  (a)  an  accounting; 
(b)  that  defendant  be  decreed  to  pay  the 
plaintiff  all  sums  found  to  be  due  on  said 
accounting;  (c)  that  the  defendant  be  en- 
Joined  "from  further  excluding  your  orator 
from  said  land,  and  from  further  Interfering 
with  the  rights  of  your  orator  In  said  land 
held  by  this  trustee  in  trust  as  aforesaid, 
and  from  mining  or  removing  any  coal  or 
other  property  from  said  land;  and  from 
further  occupying  said  land  adversely  to  the 
interests  of  your  orator" ;  (d)  that  defendant 
be  adjudged  to  pay  to  the  plaintiff  such  dam- 
ages as  he  may  have  sustained  from  the 
wrongful  acts  of  the  defendant;  and  (e)  for 
further  relief. 

[1]  As  there  were  not  filed  with  the  bill 
copies  of  the  order  of  court,  by  which  the 
plaintiff  alleges  he  was  appointed,  and  of 
the  will  of  Jane  H.  Nicholas,  we  have  no  in- 
formation in  the  record  of  their  contents  be- 
yond the  allegations  in  the  bill.  The  Judge 
of  the  lower  court  could  not  properly  have 
granted  the  injunction  prayed  for  without 
having  those  exhibits  before  him.  Miller's 
Equity  Procedure,  f  682,  i^.  689,  690 ;  Miller 
V.  Balto.  Oo.  Marble  Co.,  52  Md.  642,  646. 
Under  the  circumstances  of  this  case  it  was 
necessary  to  have  before  the  court  a  copy  of 
the  will,  as  the  court  is  not  authorized  to  ac- 
cept the  construction  placed  on  it  by  the 
plaintiff,  especially  as  the  copy  of  the  lease 
filed  with  the  bill  shows  that  it  was  signed 
and  executed  by  "George  0.  Nicholas,  Com- 
mittee of  the  Ebtate  of  Philip  Norboume 
Nicholas."  The  amended  bill  seems  to  pro- 
ceed <m  the  theory  that  the  defendant  and 
the  plaintiff  are  tenants  in  common.  In  addi- 
tion to  what  we  have  quoted,  it  as  alleged 
that: 

"Excepting  as  arising  from  gold  cotenancy,  no 
contractual  rights  or  privity  exist  or  have  ex- 
isted between  him,  or  his  predecessor  in  title, 
and  said  defendant." 

It  is  contended  by  the  appellee  that  the  bill 
in  effect  alleges  an  ouster.  The  "Indenture" 
referred  to,  marked  "Plaintiff's  EJxhlblt  A," 
is  a  lease  dated  January  1,  1900,  to  the  ap- 
pellee by  a  large  number  of  persons.  Includ- 
ing "George  C.  Nicholas,  Committee  of  the 
Estate  of  Philip  Norboume  Nicholas,  by  his 
Attorney  in  Pact,  Cumberland  Dugan."  EM- 
win  M.  Wilmer,  individually,  is  also  one  ot 
the  lessors.  By  that  lease  the  lessors  un- 
dertook to  grant,  demise,  and  let  to  the  de- 
fendant "the  exclusive  right  and  privllegt 
of  digging,  mining,  and  carrying  away  an- 


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WILMER  V.  PHUiADEI^PHIA  &  READINO  COAL  A  IROX  CX>. 


541 


tbradte  coal  wholly  at  their  own  cost  and 
expense  in  and  from  their  interest  (being 
two  hundred  and  elghty-th'ree  five  hundred 
and  seTenty-Blxths  part)  of,  in,  and  to"  cer^ 
tain  tracts  in  Schuylkill  county,  Pa.,  with  the 
right  to  deposit  the  slate,  dirt,  and  refuse 
thereon,  for  the  term  of  15  years,  from  the 
Ist  day  of  January,  1899,  to  the  31st  day  of 
December,  1913.  It  is  signed,  sealed,  and 
acknowledged,  and,  when  executed  by  attor- 
neys in  fact,  it  purports  to  be  executed  un- 
der letters  of  attorney  Intended  to  be  record- 
ed in  Schuylkill  county.  Pa. 

Although  according  to  the  bill  the  appel- 
lant was  not  appointed  substituted  trustee  un- 
til the  12th  of  July,  1913,  and  he  was  Indi- 
vidually a  party  to  that  lease,  the  first 
prayer  of  the  bill  reads  as  follows: 

"(a)  That  said  the  Pbiladeli^la  ft  Reading 
Coal  &  Iron  Company,  defendant,  may  answer 
this  bill,  and  discorer  and  set  forth  in  detail 
the  amount  of  tonnages  of  coal  and  other  prod- 
nets  mined  at,  on,  and  from  the  land  aforesaid, 
by,  on,  or  on  account  of  or  for  the  benefit  of 
■aid  defendant^  as  well  as  to  discover  and  set 
forth,  in  detail,  the  tonnage  of  each  and  every 
grade  of  coal  and  other  products  mined  as  afore- 
said, by  said  defendant,  monthly  since  the  month 
of  January  in  the  year  1890,  and  to  set  forth 
in  detail  all  sums  by  it  received  from  said  coal 
and  other  products,  and  each  of  them,  from  or 
on  account  of  sales,  or  in  any  other  manner 
whatsoever,  from  and  since  the  1st  day  of  Jan- 
nary,  1890,  as  well  as  all  profits  by  it  in  any 
way  made  daring  the  said  time  on  said  land,  and 
the  products  thereof,  and  each  of  tbem,  and 
account  with  your  orator  for  all  your  orator's 
interest  in  the  rents,  issues,  and  profits  of  said 
land,  so  occupied  as  aforesaid,  by  said  defend- 
ant, from  and  since  the  1st  day  of  January  in 
the  year  1890  to  the  present  time." 

Then  follow  the  prayers  for  a  decree  re- 
qnirtng  the  defendant  to  pay  over  all  sums 
found  to  be  due  on  said  accounting,  for  an 
Injtmctlon,  for  damages,  and  for  general  re- 
lief. 

The  argument  of  the  case  was  devoted 
mainly  to  the  question  whether  relief  should 
be  granted  to  the  appellant  in  this  state. 
Inasmuch  as  the  land  in  question  is  in  Penn- 
sylvania, the  title  to  which  the  defendant 
alleges  is  involved  and  is  really  the  main 
Issue.  It  would  probably  require  a  large 
force  of  clerks  to  furnish  the  Information  de- 
manded by  the  prayer  quoted  above,  and, 
although  it  is  true  that  the  appellant  was 
not  appointed  trustee  until  July,  1913,  he 
was  one  of  the  lessors  in  the  lease  referred 
to,  and  presumably  had  every  opportunity  to 
know  what  was  received  by  the  lessors,  and 
wbat  each  was  entitled  to.  The  lease  con- 
tains many  provisions'  for  the  protection  of 
the  lessors,  amongst  others  one  requiring  the 
company  to  furnish  them,  on  or  before  the 
10th  of  each  month,  a  correct  statement  of 
tbe  number  of  tons  of  coal  mined  and  shipped 
from  the  premises  during  the  previous  month, 
otbers  permitting  them,  their  agents,  engi- 
neers, and  inspectors,  at  all  times  to  enter 
the  mines,  providing  for  distress  for  rent  in 
arrears,  for  re-entry,  eta 

[2]  While  there  is  a  genend  denial  of  the 


defendant  having  obtained  any  rights  under 
the  lease  from  the  plaintiff  or  "any  predeceS' 
sor  of  his  in  title,"  It  is  not  alleged  or  con- 
tended that  Philip  N.  Nicholas  did  not  get  the 
full  benefit  of  what  he  was  entitled  to.  It 
would  be  a  monstrous  injustice  to  hold  the 
appellee  responsible  for  the  share  coming 
to  Philip  N.  Nicholas  during  the  many  years 
the  defendant  was  operating  under  the  lease, 
if  in  fact  he  received  the  benefit  of  it  Can 
it  be  seriously  contended  that  if  a  number 
of  tenants  in  common  make  such  a  lease  as 
this,  and  one  cotenant  does  not  join  in  it, 
but  accepts  his  share,  that  he  could  subse- 
quently recover  it,  because  he  did  not  unite 
in  tbe  lease,  In  a  court  of  equity?  No  one 
could  pretend  that  one  capable  of  acting  In 
his  own  right  could  thus  bring  reproadi  up- 
on the  administration  of  Justice,  and  would  a 
court  of  equity,  having  charge  either  of  a 
committee  of  a  lunatic  appointed  by  It,  ex 
of  a  trustee  acting  for  such  a  person,  or 
both,  be  required  to  allow  another  recovery 
of  such  share,  although  it  was  actually  re- 
ceived and  used  for  the  benefit  of  the  ward 
of  the  court,  merely  because  there  was  some 
defect  in  the  execution  of  the  instrument? 
Of  course  not;  on  the  contrary,  it  would  be 
the  manifest  duty  of  the  court  to  protect 
a  lessee  from  the  attempt  of  a  trustee  ap- 
pointed by  it  to  again  collect  the  amounts 
already  paid,  If  the  ward  of  the  court, 
whether  a  lunatic  or  a  mere  beneficiary  un- 
der a  trust,  had  In  fact  already  had  the 
benefit  of  the  amount  due,  even  If  it  was 
paid  through  a  committee  and  should  have 
been  through  the  trustee,  unless  there  was 
something  more  shown  than  is  in  this  bUl. 

Although  it  is  not  before  us  on  this  de- 
murrer, take  for  illustration  what  the  learned 
Judge  below  said  in  his  opinion  on  the  de- 
murrer to  the  original  bill.  While  he  did 
not  feel  authorized  to  consider  them  in  pass- 
ing on  the  demurrer,  he  spoke  of  certain 
facts  which  the  counsel  for  the  parties  agreed 
upon  in  the  course  of  the  argument,  one  of 
which  was  that  the  same  person  who  was  ap- 
pointed to  hold  the  interest  of  Philip  N.  Nich- 
olas as  committee  was  trustee  under  tbe 
will;  "that  he  never  acted  as  trustee,  but 
that  under  the  title  of  committee  only  he  ex- 
ecuted a  mining  lease  to  the  defendant,  and 
during  the  20  years  of  occupancy  by  the  lessee 
received,  as  committee  only,  a  regular  ac- 
counting of  rents  and  profits  under  the  lease, 
from  all  three  seventy-seconds  in  which  the 
lunatic  had  an  interest."  If  that  was  the 
case,  is  there  any  principle  of  law,  equity, 
or  good  morals  which  would  permit  the  ap- 
pellant to  again  collect  from  the  appellee  the 
share  of  Philip  N.  Nicholas,  if  It  be  con- 
ceded that  his  trustee  did  not  collect  It  as 
such,  but  did  as  committee?  It  may  very 
properly  be  urged  that  the  bill  does  not  so 
admit,  but  it  nowhere  alleges  that  the  ap- 
pellee has  not  paid  to  some  one,  and  only 
refers  to  the  appellant  and  "his  predeces- 
sor in  title"  as  not  receiving  it,  by  which  we 


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542 


101  ATLANTIC  REPOBTBB 


(Hd. 


understand  the  bill  to  mean  tbat  plaintUTs 
predecessor  as  such  did  not  unite  In  the  lease 
or  receive  the  money.  In  Wllmer  v.  Phila. 
&  Reading  G.  &  I.  Co.,  124  Md.  599,  93  AtL 
157,  the  Coal  Sc  Iron  Company  filed  a  bill  of 
interpleader  against  the  present  appellant 
and  the  Baltimore  Trust  Company  as  com- 
mittee of  Philip  N.  Nicholas.  The  Trust  Com- 
pany had  been  substituted  as  such  committee. 
The  subject-matter  of  the  bill  was  a  fund 
derived  from  the  interest  in  the  coal  lands 
owned  by  Philip  N.  Nicholas  as  one  of  the 
heirs  of  0.  O.  Nicholas,  who  was  a  party  to 
the  lease,  and  Wllmer,  trustee,  sought  to 
bring  into  that  case  the  Interest  of  Philip  N. 
Nicholas  in  those  lands  under  his  mother's 
will.  Wllmer  there  contended  that  the  Coal 
A  Iron  Company  was  not  an  indifferent  stake- 
holder, because  It  "has  paid  the  revenue  since 
the  death  of  C.  O.  Nicholas  to  some  one,"  and 
it  was  nowhere  suggested  that  all  that  was 
due  had  not  been  paid  to  some  one  for  the 
benefit  of  Philip  N.  Nicholas.  The  court  held 
however,  that  only  the  fond  in  the  hands  of 
the  i>laintiff  could  be  considered  under  the 
bill  of  interpleader.  In  the  absence  of  some 
allegation  to  the  contrary,  it  may  be  fair- 
ly inferred  that  Philip  N.  Nicholas  got  the 
benefit  of  all  he  was  entitled  to,  as  Cumber- 
land Dngan  was  not  only  the  attorney  in 
fact  for  George  C.  Nicholas,  committee,  but 
for  the  other  lessors  in  that  lease,  and  was 
■  lessor  himself. 

(3,  4]  In  the  Interpleader  case  (124  Md.  699, 
93  Atl.  157)  a  letter  from  Wllmer,  trustee, 
addressed  to  the  Coal  &  Iron  Company,  was 
filed,  in  which  it  was  stated  tbat  Oeorge  C. 
Nicholas,  surviving  trustee  of  Philip  N.  Nicho- 
las under  the  will  of  Jane  H.  Nicholas,  had 
been  removed  and  that  he  had  been  appoint- 
ed trustee  in  his  place.  That  letter  bears 
the  same  date  as  the  order  appointing  him, 
and  although,  as  we  have  already  pointed  out, 
the  order  was  not  filed  with  the  bill,  as  it 
should  have  been,  we  cannot  be  required  to 
ignore  the  fact  which  appears  in  the  records 
of  this  court  in  a  case  to  which  the  present 
appellant  and  appellee  were  parties,  and  in 
which  the  very  lease  in  question  was  involv- 
ed. Indeed,  tn  this  record  there  Immediately 
fbllows  the  amended  bill  of  complaint  a  state- 
ment which  is  said  to  give  the  purport  and 
substance  of  Exhibit  A,  and  In  it  reference  Is 
made  to  the  indenture  of  lease  printed  in  the 
record  of  this  court  in  the  case  in  124  Md. 
599,  93  Atl.  157,  thus  referring  us  to  that 
record,  and,  moreover,  we  assume  that  the 
statement  was  filed  with  the  bill,  as  other- 
wise it  ought  not  to  have  been  in  this  record. 
Beyond  all  that,  there  is  in  the  record  in  this 
<a8e  a  copy  of  the  indenture  referred  to, 
which  shows  the  necessity  of  explaining  such 
matters  as  we  have  referred  to. 

[S]  Assuming,  then,  that  George  C.  Nicholas 
was  both  trustee  under  the  will  for,  and  com- 
mittee of,  Philip  N.  Nicholas,  it  cannot  be 
doubted  that,  as  he  executed  the  lease  as  com- 
mittee, be  must  be  held  to  have  acquiesced 


In  it,  even  if  it  be  conceded  that  he  ought  to 
have  executed  it  as  trustee,  and  not  as  com- 
mittee, or  was  not  duly  authorized  to  exe- 
cute it  as  committee.  The  court  certainly 
had  the  power  to  ratify  his  act  as  such  trus- 
tee, and  presumably  he  duly  accounted  for 
the  funds  received  by  him,  as  there  is  no 
allegation  or  suggestion  to  the  contrary.  If 
the  court  having  Jurisdiction  of  the  trust, 
which  is  the  court  in  which  the  bill  was  filed, 
is  satisfied  that  it  would  have  ratified  the 
action  of  the  trustee  if  It  was  necessary  for 
the  trustee  to  have  that  done,  and  that  the 
cestnl  que  trust  got  the  benefit  of  what  he 
was  entitled  to,  it  could  and  doubtless  would 
even  now  do  so.  It  is  said  in  38  Cyc.  106,  in 
the  article  on  Tenancy  in  Common,  written  by 
the  learned  attorney  for  the  appellant,  that: 

"Tenants  in  common,  being  owners  of  several 
interests,  may  ratify  the  acts  of  each  other  or 
acquiesce  therein;  and  generally  such  ratifica- 
tion or  acquiescence  with  full  knowledge  of 
material  facts  is  effective,  and  after  such  rati- 
fication or  aoiuieacence  the  ratifying  parties  and 
their  respective  grantees  are  estopped  from  de- 
nying the  effect  thereof." 

See,  also,  38  Cyc.  104;  7  R.  O.  I*  876,  877, 
and  note  to  Da  Rette  v.  Miller,  Ann.  Cas. 
1913D,  1165. 

[6-S]  By  reason  of  the  failure  of  the  ap- 
pellant to  file  the  will,  we  cannot  determine 
the  powers  of  the  trustee  under  it;  but  the 
powers  of  a  court  of  equity,  under  sections 
114  to  123  of  article  16  of  the  Code  of  Pub- 
lic General  Laws  of  1904,  in  reference  to 
persons  non  compos  mentis,  are  very  broad 
and  comprehensive,  although  a  sale,  lease,  or 
mortgage  of  the  estate  of  a  person  non  cmor 
pos  mentis  by  his  committee  is  safeguarded 
by  a  number  of  provisions  for  his  protection. 
The  bill  does  not  in  terms  allege  that  the 
court  did  not  authorize  the  committee  to 
make  the  lease,  and,  if  it  did,  the  Informal 
execution  of  it,  or  failure  to  recite  the  fact  tn 
the  lease,  would  not  justify  a  second  recovery 
of  the  rents  and  profits.  It  is  true  that  the 
bill  alleges  that  the  signature  of  George  C 
Nicholas,  etc.,  "is  entirely  unauthorized" ;  but 
why  it  is  we  are  not  informed  by  the  bilL 
How  far  a  committee  appointed  in  this  state 
can  exercise  powers  over  property  in  Pennsyl- 
vania must  depend  upon  the  laws  and  deci- 
sions of  that  state,  and  it  would  be  for  the 
courts  of  that  state  to  determine  the  effect  of 
such  a  lease  as  this,  signed  by  a  committee 
or  his  attorney  in  fact,  If  he  was  both  trustee 
and  committee  for  Philip  N.  Nicholas,  as  he 
seems  to  have  been.  It  would  seem,  there- 
fore, to  be  clear  that  the  title  of  this  prop- 
erty, under  the  lease,  is  so  directly  Involved 
that  a  court  of  this  state  could  not  properly 
determine  the  questions  which  would  be  nec- 
essary in  order  to  do  justice  to  the  parties. 
The  question  of  accounting  is  not  the  primary 
one,  for  if  the  lease  be  held  to  be  valid,  or 
the  rights  of  the  defendant  protected  under 
the  theory  suggested  by  us  above,  or  for  oth- 
er reasons  satisfactory  to  the  Pennsylvania 


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WARFIELD  ▼.  VALENTINB 


543 


courts,  there  will  be  no  occasion  for  an  ac- 
counting under  tbis  bill. 

[(,  It]  We  have  thus  only  discussed  the 
demurrer  In  connection  with  the  lease,  for 
although  the  bill  undertakes  to  go  back  to 
January  1,  1890 — 0  years  before  the  lease 
was  to  operate,  and  over  25  years  before 
the  original  bill  was  filed — without  something 
more  definite  as  to  what  transpired  between 
the  Ist  of  January,  1890,  and  the  1st  of  Jan- 
nary,  1S99,  when  the  lease  began  to  operate, 
than  we  find  In  this  bill,  a  court  of  equity 
would  not  be  Justified  in  permitting  a  trus- 
tee under  Its  jurisdiction  to  thus  delve  into 
the  past,  much  less  In  granting  relief  to  such 
a  stale  claim.  It  Is  true  that  the  plaintifT 
was  not  appointed  substituted  trustee  until 
a  little  over  2  years  before  the  original  Mil 
was  filed,  but  the  lease  filed  as  an  exhibit 
shows  that  he  was  one  of  the  lessors  of  the 
land,  and  presumably  he  was  familiar  with 
the  facts,  and  yet  he  makes  no  explanation 
of  his  own  delay  of  2  years,  or  of  the  inaction 
of  nearly  a  quarter  of  a  centniy  by  his  prede- 
cessor. If  his  predecessor  ought  to  have  re- 
ceived the  share  In  question  as  trustee,  and 
did  not  in  that  capacity,  but  did  as  com- 
mittee, and  properly  accounted  for  it,  what 
we  have  said  is  sufficient  to  show  that  in  our 
opinion  the  plalntift  should  not  be  permitted 
to  recover,  and  if  there  was  no  such  receipt, 
or  the  appellant  could  not  ascertain  whether 
or  not  there  was,  he  should  have  so  stated  in 
Ills  bill.  Frankness  in  a  court  of  equity  de- 
manded at  least  that  much. 

[11]  So  as  to  what,  if  anything,  became 
due  between  the  time  of  the  expiration  of 
the  lease,  on  December  81,  1913,  and  the  &!• 
Ing  of  the  bill,  we  are  not  sufficiently  In- 
formed how  the  defendant  was  holding,  but 
the  allegations  are  of  the  most  general  and 
Indefinite  character.  We  do  know  from 
the  case  in  124  Md.  599,  93  Atl.  157,  that 
the  Baltimore  Trust  Company  was  at  some 
time  appointed  committee  of  Philip  N.  Nicho- 
las; but  whether  his  share,  or  any  part  of 
It,  has  been  paid  to  that  company  as  commit- 
tee, or  to  any  one  else,  we  are  not  Informed 
by  the  bUl,  although  in  124  Md.  599,  93  Atl. 
157,  in  his  cross-bill,  the  appellant  alleged 
that  the  Trust  Company  "under  color  of  Its 
alleged  committeeship  has  wrongfully  receiv- 
ed and  accepted  money  due  to  blm  as  trus- 
tee." Frankness  is  demanded  In  all  cases, 
but  peculiarly  so  in  one  such  as  tliis,  where 
tbere  is  enough  before  the  conrt  to  inform 
It  that  a  trustee  and  a  committee  were  named 
for  the  same  person,  and  that  at  least  for 
a  large  portion  of  the  time  the  same  person 
vna  named  as  both.  It  Is  not  enough  for 
one  who  has  been  substituted  for  one  of  the 
places  to  rely  on  general  allegations  as  to 
blmself  and  his  predecessor,  especially  as, 
v^hen  one  person  occupies  two  positions  of 
trust  for  the  same  person,  and  receives  money 
for  bis  cestui  que  trust  or  ward,  presumably 
be  receives  it  in  the  proper  capacity,  in  the 


absence  of  something  to  the  contrary,  and, 
if  he  did  not,  but  applied  it  to  the  use  of  bis 
cestui  que  trust  or  ward,  a  court  of  equity 
could  readily  adjust  and  correct  the  error, 
so  as  to  protect  all  parties  entitled  to  pro- 
tection. 

[12]  That  under  the  circumstances  an  in- 
junction should  not  have  been  granted  would 
seem  clear.  There  is  only  Involved  a  com- 
paratively small  interest  in  the  land.  To  en- 
join the  defendant  from  prosecuting  its'  busi- 
ness on  that  land  might  do  great  injustice, 
and  there  does  not  appear  In  the  bill  any 
good  ground  for  such  a  drastic  proceeding. 
The  remedy  by  injunction  in  fftvor  of  a  co- 
tenant  is  sparingly  exercised.  88  Cya  97,  98; 
17  Amer.  &  Eng.  Bncy.  of  Law,  705.  If  the 
contention  of  the  appellee  be  correct  that  the 
bill  alleges  an  ouster,  there  wonld  be  stlU 
less  ground  for  the  relief  asked;  but  we 
have  not  thought  it  necessary  to  discuss  that 
question,  as  we  are  satisfied  that  the  plain- 
tiff is  not  entitled  to  relief  under  this  bill, 
for  the  reasons  we  have  stated. 

Decree  affirmed ;  the  appellant,  individual- 
ly, to  pay  the  costs. 


(UO  Md.  587) 

WAKFIEIiD  ▼.    VALENTINE   et  ai 
(No.  7.) 

(Court  of  Appeals  of  Maryland.    June  20, 1917.) 

1.  Afpeai,  ANn  Ebbob  «=>837(3)— Condition 
OK  Catjsh!— Pendency  or  Pbocbedingb  in 

LOWEB  CODBT. 

On  bill  for  specific  performance,  plaintiflTs 
appeal  from  an  ex  parte  order  substituting  ad- 
miiustrators  pendente  lite  on  account  of  death 
of  one  of  the  parties  defendant  is  premature, 
where  notice  of  such  order  was  served  on  plain- 
tiff, and  he  filed  petition  against  such  adminis- 
trators,  and  thereafter  petitioned  for  rescission 
of  the  order,  which  petition  was  pending  at  the 
time  of  the  attempted  appeal. 

[Ed.  Noto.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  1877.] 

2.  Appkai.  and  Errob  €=:378(1>— Obdebs  AP' 

FEAIJIBLE — FiNALITT  OF  DBTEBMINATION. 

Aji  order  setting  for  hearing  a  motion  to  dis- 
solve an  injunction  is  not  within  the  provi- 
sions of  Code  Pub.  Civ.  Laws,  art.  5,  i  26, 
authorizing  appeals  from  final  decrees  or  from 
orders  in  the  nature  of  final  decrees. 

[Bid.  Note.— For  other  cases,  aeo  Appeal  and 
Error,  Cent  Dig.  SS  426,  470,  472.] 

Appeal  from  Circuit  C!ourt,  Baltimore  (boun- 
ty; Frank  I.  Duncan,  Judge. 

"To  be  officially  reported." 

Bill  for  specific  performance  by  S.  Davies 
Warfield  against  John  R.  Valentine  and  oth- 
ers. £>om  an  order  making  administrators 
pendente  lite  parties  defendant,  and  from  an 
order  setting  for  hearing  defendants'  motion 
to  dissolve  an  injunction,  plaintiff  appeals. 
Appeal  dismissed. 

Argued  before  BOYD,  0.  J.,  and  BRISCOE, 
THOMAS,  URNER,  and  STOCKBRIDGE,  JJ. 

John  B.  Demlng  and  George  Whiteloclt, 
both  of  Baltimore  (Whitelock,  Demlng  & 
Kemp,  of  Baltimore,  and  T.  Scott  OSntt,  of 


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101  ATLANTIC  REPORTER 


(Md. 


Towson,  on  the  brief),  for  appellant.  Osborne 
I.  Yellott  and  Frank  Gosnell,  both  of  Balti- 
more (Marbury,  Gosnell  &  Williams,  of  Balti- 
more, on  the  brief),  for  appellees. 

THOMAS,  J.  This  is  the  second  appeal 
In  this  case;  On  November  1,  1915,  a  bill  of 
complaint  was  filed  in  the  circuit  court  for 
Baltimore  county  by  the  appellant  against 
Thomas  H.  Emory  for  specific  performance 
of  an  -alleged  contract  by  which  Emory  sold 
to  the  plalntifT  two  farms  or  tracts  of  land 
In  Baltimore  county,  containing  in  the  ag- 
gregate 775  acres  of  land,  more  or  less.  John 
R.  Valentine  was  made  a  party  defendant  in 
the  bill  because  of  the  purchase  by  him  of 
the  property  through  an  agent  of  Emory,  with 
the  view,  as  alleged  in  the  bill,  of  defrauding 
the  plaintUF,  and  because  of  an  alleged  under- 
standing between  Valentine  and  the  plaln- 
tifT that,  if  either  of  them  purchased  the 
property,  "the  other  should  be  considered  as 
having  a  share  or  interest  In  the  same."  The 
bill  prayed  (1)  for  the  specific  enforcement 
of  the  alleged  contract  between  the  plaintiff 
and  Emory;  (2)  or,  in  the  event  the  court 
should  refuse  that  relief,  that  a  decree  be 
passed  declaring  that  Valentine  purchased 
the  property  In  trust  for  himself  and  the 
plaintlft;  and  (3)  that  Emory  and  Valentine, 
and  their  servants,  agents,  etc.,  be  enjoined 
until  the  further  order  of  the  court  from 
taking  any  steps  to  carry  out  the  contract 
of  sale  between  them.  An  order  restraining 
and  enjoining  the  defendants  as  prayed  In 
the  bill  was  passed  by  the  court  on  the  day 
the  bill  was  filed,  and  thereafter  the  defend- 
ants filed  their  answer,  admitting  the  con- 
tract of  sale  between  the  defendants,  but 
denying  the  other  averments  upon  which  the 
plaintiff  relied  for  relief. 

The  proceedings  in  the  case  from  the  filing 
of  the  bin  to  the  date  of  the  order  for  the 
present  appeal  are  set  out  In  the  record  of 
the  former  appeals  of  Theodore  W.  Forbes 
and  Osborne  I.  Yellott,  administrators  pen- 
dente lite,  and  John  R.  Valentine,  January 
term,  1917,  and  are  referred  to  in  the  opinion 
of  this  court  filed  Mardi  IS,  1917. 

On  the  6th  of  September,  1916,  Theodore 
W.  Forbes  and  Osborne  I.  Tellott,  administra- 
tors pendente  lite,  filed  a  petition  In  the  case, 
alleging  that  Thomas  H.  Emory  bad  died  at 
Saranac  Lake,  N.  Y.,  on  the  15th  of  August, 
1916,  leaving  a  paper  writing  purporting  to 
be  his  last  will  and  testament;  that  before 
the  will  was  admitted  to  probate  by  the 
orphans'  court  of  Baltimore  county  a  caveat 
thereto  was  filed  by  an  uncle  and  two  aunts 
of  the  deceased,  as  his  heirs  at  law  and  next 
of  kin ;  and  that  the  orphans'  court  of  Balti- 
more county  bad  appointed  the  petitioners 
administrators  pendente  lite,  with  authority 
to  Intervene  in  this  case,  and  praying  the 
court  to  pass  an  order  making  them  parties 
defendant.  On  the  same  day  the  court  be- 
low passed  an  order  making  them  parties 


defendant  in  the  case,  "provided  that  a  copy 
of  this  order  shall  be  served  upon  the  plaln- 
tifT, or  one  of  his  counsel  of  record,  and  al- 
so upon  John  R.  Valentine,  or  his  counsel  of 
record,  on  or  before  the  12th  day  of  Septem- 
ber, 1916."  A  copy  of  the  order  was  accord- 
ingly served  on  coimsel  of  record  for  the 
plalntifT  and  on  coimsel  for  the  defendant 
Valentine  on  the  6th  of  September,  1916. 

On  the  8th  of  September,  1916,  the  plain- 
tiff filed  a  petition  against  the  administra- 
tors pendente  lite  and  John  R.  Valentine,  in 
which,  after  stating  that  Thomas  H.  Emory 
had  died,  and  that  a  caveat  had  been  filed  to 
the  paper  purporting  to  be  bis  last  will  and 
testament,  he  alleged  that  It  was  necessary 
in  order  to  preserve  the  property  that  the 
farm  be  operated,  that  Forbes  and  Yellott 
should  not  be  permitted  to  assume  the  con- 
trol and  management  of  the  same,  and  that 
some  competent  and  disinterested  person 
should  be  appointed  receiver  to  take  charge 
of  it;  and  thereupon  the  court  appointed  the 
Safe  Deposit  &  Trust  Company  of  Baltimore 
receiver,  to  take  possession  of  and  to  manage 
and  operate  the  farm  "imtil  It  shaU  have 
been  determined  who  is  entitled  to  the  owner- 
ship thereof." 

On  the  21st  of  October,  1916,  the  court  be- 
low passed  an  order  setting  a  motion  of  the 
defendants  to  dissolve  the  Injimction  there- 
tofore granted  for  hearing  on  the  28th  of 
October,  1916,  and  requiring  a  copy  of  the 
order  to  be  served  on  the  plaintiff  on  that 
day.  On  the  26th  of  October,  1916,  the  plain- 
tiff filed  a  petition  alleging  that  the  ordw 
of  September  6,  1916,  making  the  administra- 
tors pendente  lite  parties  defendant,  was 
passed  "upon  the  ex  parte  application"  of  the 
said  Forbes  and  Yellott;  that  "pending  the 
determination  of  the  controversy  concerning 
said  supposed  will,  it  is  impossible  to  deter- 
mine who  win  be  the  holders  of  the  legal 
title  to  said  real  estate,  from  whom  a  con- 
veyance must  be  made  to  your  petitioner,  in 
the  event  that  this  court  shall  decree  the 
relief  prayed  In  the  bill  of  complaint,  and 
therefore  until  the  determination  of  said  con- 
troversy It  is  also  impossible  for  this  court 
to  ascertain  who  are  sufficient  parties  defend- 
ant in  the  room  and  stead  of  said  decedent" ; 
that  the  plaintiff  was  not  notified  of  the  pas- 
sage of  the  order  of  the  orphans'  court  of 
Baltimore  coimty  authorizing  the  adminis- 
trators pendente  lite  to  intervene  In  this 
case,  "nor  of  the  filing  of  any  application  or 
petition  therefor,  nor  was  be  notified  of  the 
application  of  said  Yellott  and  Forbes  to  be 
made  parties  hereto,  nor  of  the  passage  of 
the  order  aforesaid  making  them  parties  un- 
til after  the  same  had  been  passed";  that 
he  had  no  opportunity  to  be  heard  in  refer- 
ence thereto,  and  that  he  "Is  advised  that  tlie 
passage  of  said  order  by  this  court  was  im- 
provident and  Inadvertoit."  The  petition 
prayed  for  the  "rescission"  of  the  order  o* 
September  6,  1916,  and  that  the  administra- 
tors pendente  lite  be  dismissed  as  parties 


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WABFIBLD  v.  VALSaraiNB 


648 


defendant  The  court  passed  an  order  set- 
ting tbe  petition  for  hearing  on  the  28tb  of 
October,  1916,  and  on  that  day,  and  while 
the  petition  of  the  plaintiff  for  a  "resdaslon" 
of  the  order  of  September  6, 1916,  making  tb« 
administrators  pendente  lite  parties,  and  the 
motion  to  dissolve  the  Injunction,  were  still 
pending  in  the  court  below,  the  plaintiff  filed 
his  order  for  the  present  appeal  from  the  or- 
der of  September  6,  1916,  and  the  order  set- 
ting the  motl(n  to  dissolve  the  injunction 
for  hearing. 

In  the  case  of  Baldwin  v.  Mitdiell,  86  Md. 
379,  38  AtL  T76,  Judge  Page,  speaking  for 
this  court,  said: 

"There  are  no  provuions  in  our  statutes  de- 
fining the  powers  of  an  administrator  pendente 
lite,  "or  establishing  particular  and  exception- 
al rules  for  the  discharge  of  his  duties,  as  in 
the  case  of  an  administrator  ad  colligendum. 
Sections  61  to  64  The  intention  of  our  law, 
therefore,  seems  to  be  dear  that  be  must  be  sub- 
ject to  the  same  general  rules  as  control  gen- 
eral administrators.  Within  12  months  from 
the  date  of  his  letters,  he  must  render  his  first 
account,  and,  if  necessary,  an  additional  ac- 
count every  6  months  thereafter.  If  his  letters 
bo  revoked  before  the  12  months  expire,  he  must 
then  exhibit  his  account  without  delay,  and  hand 
over  to  the  executor  or  new  administrator  all 
the  property  of  the  decedent  in  bis  hands.  He 
may  sue  for  the  recovery  of  the  assets  and  bo 
sued  for  debts  due  from  the  decedent;  and  if 
such  suits  are  still  pending  when  his  letters  are 
revoked,  tho  new  administrator  may  prosecute 
or  defend  them.  Section  69.  With  powers  and 
duties  such  as  these,  no  sufficient  reason  can  be 
•sugned  why  he  shall  not  be  required  to  dis- 
charge the  decedent's  debts,  as  other  adminis- 
trators are  required.  We  are  of  upinion,  there- 
fore, that  our  statutes  do  not  contemplate  such 
an  administrator  as  having  been  appointed  for 
the  special  purpose  only  of  taking  care  of  tho 
assets." 

It  Is  said  In  Miller's  BSqulty  Procedure,  {  64: 

"In  eeaes  of  specific  performance  the  general 
mie  is  that  only  those  persons  are  proper  par- 
ties who  are  parties  to  the  contract  or  those 
who  have  been  substitnted  in  their  place  as 
executors  or  heirs.  This  general  rule,  however, 
has  been  somewhat  enlarged  in  its  scope.  If  a 
purchaser  assigns  his  entire  interest  in  the 
contract  of  purchase,  his  assignee  may  sue  the 
vendor;  tho  assignor  Is  a  proper  party  to  such 
a  suit.  If  the  vendor  conveys  the  ijroperty  to 
a  purchaser  with  notice,  the  latter  is  a  neces- 
sary party  defendant.  •  •  •  If  the  purchas- 
er be  dead,  and  the  vendor  sues  for  specific  per- 
formance, the  personal  representative  of  the 
purchaser  must  be  a  party,  because  the  personal 
assets  aro  primarily  liable  for  the  debt;  and 
the  heirs  or  devisees  also,  because  the  convey- 
ance must  be  made  to  them.  If  the  purchaser 
dies  and  the  heirs  of  the  purchaser  sue  the 
vendor,  the  personal  representative  of  the  pur- 
chaser shonld  also  be  a  party,  for  the  heirs  are 
mititled  to  have  tho  contract  paid  out  of  the 
personal  estate.  If,  on  the  other  hand,  the 
vendor  be  dead,  and  ids  personal  representatives 
■cek  a  specific  performance  against  the  pur- 
dtaser,  the  heir  or  devisee  of  the  vendor  should 
be  a  party,  for  he  alone  is  competent  to  convey 
title.  And  if  the  vendor  bo  dead,  and  the  pur- 
diaaer  seeks  a  specific  performance,  the  heirs 
or  devisees  of  the  vendor  should  be  made  par- 
ties." 

The  same  rules  are  recognized  In  1  Dan- 
leU's  Ch.  P.  &  P.  (6th  Am.  Ed.)  star  p.  285, 
where  it  is  further  said: 

"Where  tho  bill  is  filed  to  redeem  a  mortgage 
«sainst  the  heir  of  a  mortgagee^  the  persoiud 

101A^-«S 


representative  must  also  be  made  a  party  to  th* 
suit,  because,  although  the  mortgagee  upon  pay- 
ing the  principal  money  and  Interest  has  a  right 
to  a  reconveyance  from  the  heir,  yet  tlie  heir 
is  not  entitled  to  receive  the  money." 

In  the  case  of  Stewart  v.  Orifflth,  217  U. 
S.  323.  30  Sup.  Gt  528,  54  U  Ed.  782. 19  Ann. 
Gas.  639,  where  the  bill  was  filed  by  the  ex- 
ecutor of  a  deceased  vendor  for  a  spedflc  per- 
formance of  a  contract  for  the  purchase  of 
certain  land,  the  Supreme  Court  said: 

"It  is  urged  that  the  probate  of  the  will  does 
not  establish  it  conclusively  as  to  real  estate, 
and  that  the  heirs  might  attack  it  hereafter; 
but  it  is  answered  that  by  the  contract  the  land 
had  become  personalty  as  against  them,  and 
that  therefore  so  far  as  this  land  is  concerned 
the  will  is  safe  from  collateral  attack.  More- 
over, as  it  is  clear  that  the  estate  has  and  is 
subject  to  a  binding  contract,  it  Is  hard  to  see 
how  it  matters  to  the  heirs  who  does  the  formal 
acts  of  accomplishment  so  long  as  he  is  ac- 
countable to  the  orphans'  court/' 

Section  95  of  article  16  of  the  Gode  pro- 
vides for  the  appointment  of  a  trustee  to  exe- 
cute a  deed  decreed  to  be  executed  (Hollander 
V.  Central  Metal  Co.,  109  Md.  131,  71  Atl.  4^ 
23  L.  R.  A  [N.  S.]  1135),  and  the  general  rule 
Is  that.  In  proceedings  for  the  sale  of  real  es- 
tate, all  persons  who  by  any  possibility  may 
be  entitled  to  an  Interest  are  proper  parties. 
MlUer's  Equity  Pro.  |  67;  Handy  v.  Waxter, 
75  Md.  517,  23  AU.  1035.  So  if  It  be  conceded 
that  the  heirs  at  law,  devisees,  or  executor  of 
a  deceased  vendor  are  necessary  parties  to 
enable  the  court  to  decree  spedflc  perform- 
ance of  a  contract  of  sale  of  land  at  the  suit 
of  the  purchaser,  the  authorities  referred  to 
would  seem  to  Indicate  that,  pending  a  caveat 
to  an  alleged  will  of  the  deceased  vendor,  the 
administrator  pendente  lite  Is  at  least  a  prop- 
er party,  not  because  he  Is  authorized  under 
section  81  of  article  16  of  the  Code  to  conv^ 
the  real  estate,  bat  becanse  he  would  be  en- 
titled to  receive  the  purchase  money,  If  spe- 
dflc performance  of  the  contract  Is  decreed 
pending  the  caveat 

[1]  But  we  are  not  called  upon  in  Oils  case 
to  pass  upon  the  right  of  the  administrators 
pendente  lite  to  be  made  parties  defendant 
or  to  express  an  opinion  in  regard  to  the 
propriety  of  the  order  of  September  6,  1916, 
making  them  parties.  It  appears  from  the 
return  of  the  sheriff  that  a  copy  of  the  or- 
der was  served  on  counsel  for  plaintiff  oa  ths 
day  the  order  was  passed.  On  the  8th  of 
September  the  plaintiff  flled  a  petition 
against  the  administrators  pendente  lite  and 
Valentine  for  the  appointment  of  a  receiver 
to  take  charge  of  the  property,  and  no  objec- 
tion was  raised  to  the  order  making  thenk 
parties  until  the  petition  of  October  26,  1916, 
was  flled  by  the  plaintiff,  praying  that  the 
order  be  rescinded.  After  having  Invoked  the 
Jurisdiction  of  the  court  below  to  review  and 
resdnd  its  order  of  September  6, 1016,  passed 
without  objection,  the  plaintiff,  In  effect  re- 
fused to  submit  to  its  Jurisdiction,  and,  aban- 
doning his  petition,  enters  an  appeal  for  the 
purpose  of  having  the  order  reviewed  by  thip 


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101  ATLANTIC  JiEPORTER 


(Md. 


conrt  The  course  pursued  by  the  plaintiff  is 
certainly  not  In  accord  with  the  usual  prac- 
tice In  this  state,  and  is  one,  we  think,  that 
should  not  receive  the  approval  of  this  court 
Section  4  of  article  16  of  the  Code  provides 
that: 

"Any  representative  of  a  deceased  party  may 
appear  and  suggest  in  writing  the  death  of  the 
party  under  whom  he  claims,  and  be  made  a 
party  in  place,  of  the  person  so  dying,  •  •  • 
on  giving  such  notice  to  the  opposite  party  as 
the  court  may  direct." 

And  section  36  of  article  5  of  the  Code  pro- 
vides: 

"On  an  appeal  from  a  court  of  e<]uity,  no 
objection  to  tho  competency  of  a  witness,  or 
the  admissibility  of  evidence,  or  to  the  sufficien- 
cy of  the  averments  of  the  bill  or  petition, 
*  *  *  shall  be  made  in  the  Court  of  Appeals, 
unless  it  shall  appear  by  the  record  that  such 
objection  was  mado  by  exceptions,  filed  in  the 
court  from  which  such  appeal  shall  have  been 
taken." 

In  the  case  of  Carrlngton  v.  Basshor  Co., 
121  Md.  71,  88  Atl.  52,  this  court  said: 

"The  jurisdiction  of  a  court  of  equity  in  this 
state,  upon  proper  averments,  to  appoint  receiv- 
ers for  a  corporation,  is  not  and  cannot  be  ques- 
tioned, and  it  is  therefore  obvious  that,  had  the 
Basshor  Company  appealed  from  the  orders  re- 
ferred to,  independent  of  the  fact  that  it  con- 
sented to  the  orders,  it  would  not  have  been 
allowed  to  object  in  wis  court  to  the  sufficiency 
of  the  averments  of  the  bill  or  to  tho  jurisdic- 
tion of  the  court  below.  •  •  •  Upon  what 
principle  [then]  can  the  appellant  escape  the 
requirements  of  the  rule?  He  was  not  a  neces- 
sary party  to  tho  bill,  and  not  having  been 
made  a  party,  it  is  true  that,  so  far  as  the  rec- 
ord shows,  he  did  not  have  an  opportunity  to 
resist  the  relief  prayed  prior  to  the  orders  of 
which  he  now  complains.  But  after  these 
orders  were  passed  ho  was,  upon  his  own  ap- 
plication, made  a  party  defendant,  and  if  he 
had  such  an  interest  in  the  subject-matter  of 
the  suit  as  entitled  him  to  defend  it,  and  he 
desired  to  mako  the  defense  stated  in  his  an- 
swer, before  taking  his  appeal,  he  should  have 
applied  to  the  court  below  for  a  rescission  of 
the  orders  upon  those  grounds.  •  •  •  Had 
he  done  so,  and  had  the  •  •  •  court  adopted 
his  view  of  the  bill,  there  would  have  been  no 
occasion  for  this  appeal.  To  permit  him  to 
make  the  obji-ctions  now  would  require  this 
court,  in  the  ftice  of  the  statutes  and  the  rules 
stated,  to  consider  questions  that  were  not  rais- 
ed or  determined  in  the  lower  court." 

As  the  plaintiff  had  notice  of  the  order 
complained  of  in  this  case,  and  as  the  lower 
court,  because  of  the  present  appeal,  has  not 
passed  upon  his  objections  to  the  petition  of 
the  administrators  pendente  lite  and  the  or- 
der passed  thereon,  we  think,  upon  the  prin- 
ciple announced  In  Carrlngton  y.  Basshor  Co., 
supra,  that  bis  appeal  is  premature. 

[2]  It  needs  no  citation  of  authority  to 
show  that  the  order  of  October  21,  1916,  set- 
ting the  motion  to  dissolve  the  injunction 
down  for  bearing,  is  not  within  the  provisions 
of  section  26  of  article  5  of  the  Code,  author- 
izing an  appeal  from  a  final  decree,  or  an  or- 
der in  the  nature  of  a  final  decree,  and  it 
follows  from  what  has  been  said  that  the  ap- 
peal must  be  dismissed. 

Appeal  dismissed,  with  costs. 


010  Md.  au) 
STATE,  to  Use  of  SCOTT  et  al.  ▼.  WASH- 
INGTON, B.  &  A.  ELECTRIC 
R.  CO.    (No.  10.) 
(Court  of  Appeals  of  Maryland.    Jnne  28, 1917.) 

1.  Appeal  and  Ebrob  «=s>1058(2)— Harmuss 
Erbob— Exclusion  or  Evidencb. 

In  an  action  against  a  carrier  for  death  of 
a  passenger,  the  exclusion  of  evidence  as  to  the 
condition  of  deceased's  health  prior  to  the  date 
of  the  injury  was  harmless,  where  a  witness  was 
permitted  without  contradiction  to  testify  as 
to  the  condition  of  deceased's  health  on  the  day 
of  his  death  and  for  two  weeks  prior  thereto. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  iS  4195,  4201.] 

2.  Cabbibbs  4=9369,  370  —  Injuries  to  Per- 
sons on  Track— Pboxiicate  Cause. 

Where  passenger  was  forcibly  ejected  from 
car  by  carrier's  servant,  and  the  injury  from 
which  be  died  was  received  at  a  distance  of  more 
than  a  mile  from  the  point  of  his  ejection,  and 
was  suffered  by  reason  of  his  being  struck  by  an- 
other of  carrier's  trains,  held,  bis  ejection  was 
not  the  natural  and  probable  consequence  of  de- 
fendant's wrongful  act  in  ejecting  him,  but  that 
the  proximate  cause  of  his  injury  was  his  want 
of  care  in  being  upon  defendant's  tracks. 

[Ed.  Note. — For  other  cases,  see  Carriers, 
Cent.  Dig.  gi  1459,  1483,  1485-1487.] 

S.  Carriers  ^=»370— Action  for  Injukieb— 
Injury     op     Passenoeb     Ajteb     BBii«a 

BIJECTED. 

A  passenger  ejected  from  car,  who  thereaft- 
er walks  along  defendant's  tracks,  assumes  the 
risk  of  its  perils. 

[Ed.  Note.— For  other  cases,  see  Carrieia, 
Cent.  Dig.  {  1459.] 

Appeal  from  Circuit  Court,  Prince  George's 
County ;  John  P.  Briscoe,  B.  Harris  C!amaller 
and  Fillmore  Beall,  Judges. 

"To  be  officially  reported." 

Action  for  death  by  the  State  of  Maryland, 
to  the  use  of  Eleanor  Sanford  Scott  an'd  an- 
other, Infants,  against  the  Washington,  Bal- 
timore &  Annapolis  Electric  Railroad  C!om- 
pany.  Judgment  for  defendant,  and  nse 
plaintiffs  appeal.    Affirmed. 

Argued  before  BOYD,  O.  J.,  and  BURKE. 
THOMAS,  PATTISON,  URNBR,  and  STOCK- 
BRIDGE,  JJ. 

Leonai'd  J.  Mather  and  Robert  W.  Wells, 
both  of  Washington,  D.  C.  (Prank  M.  Stephen, 
of  Upper  Marlboro,  on  the  brief),  for  appel- 
lants. George  Weems  Williams,  of  Baltimore 
(T.  Van  Clagett,  of  Upper  Marlboro,  on  the 
brief),  for  appellee. 

BURKE,  J.  The  appeal  In  this  case  was 
taken  from  a  judgment  rendered  In  favor  <rf 
the  appellee  in  the  circuit  court  for  Prince 
George's  county  under  an  instruction  of  the 
court  by  which  the  case  was  withdrawn  from 
the  consideration  of  the  Jury  and  a  verdict 
directed  for  the  defendant. 

The  suit  was  brought  in  the  name  of  the 
state,  for  the  use  of  Eleanor  Sanford  Scott. 
the  widow  of  Oscar  Scott,  and  his  Infant  son, 
Kenitb  Walter  Scott,  to  recover  damages 
for  the  death  of  the  husband  and  ftither,  who 
wna  alleged  to  have  been  killed  by  the  negll- 


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STATE  V.  WASHINGTON,  B.  A  A.  ELECTRIC  R.  CO. 


547 


gence  of  the  defendant.  The  record  contains 
two  exceptions  taken  by  the  plaintiff  during 
the  course  of  the  trial ;  the  first  relating  to  a 
ruling  on  evidence,  and  the  second  to  the 
grantinK  of  the  prayer  submitted  at  the  close 
of  the  plaintiff's  case,  withdrawing  the  case 
from  the  consideration  of  the  Jury.  The  dec- 
laration contained  two  counts;  but  there 
was  no  evidence  to  support  the  second  count, 
and  it  Is  conceded  that  no  recovery  could 
have  been  had  under  that  count 

The  defendant  is  a  common  carrier  of  pas- 
sengers for  hire,  and  owns  and  operates  an 
electric  railway  between  the  city  of  Wash- 
ington, In  the  District  of  Columbia,  and  Bal- 
timore city,  in  the  state  of  Maryland.  Oscar 
Scott,  the  deceased,  l>oarded  the  defendant's 
car  as  a  passenger  at  White  Bouse  Station, 
Fifteenth  and  H  streets,  Washington,  for 
Dodge  Station,  on  the  defendant's  line,  on 
July  1, 1915,  about  7 :20  p.  m.,  and  was  Isilled 
at  Sprlngman's  Crossing,  Md.,  by  a  car  of  the 
defendant  running  from  Baltimore  to  Wash- 
ington. The  alleged  breach  of  duty  on  the 
part  of  the  defendant,  upon  which  the  suit  is 
based.  Is  specifically  set  out  In  the  first  count 
of  the  declaration.  After  stating  that  the  de- 
ceased was  a  passenger  upon  the  defendant's 
cars,  and  that  it  was  its  duty  to  exercise  the 
highest  degree  of  care  towards  his  safety,  it 
alleged  that : 

"Said  defendant  railroad  company  became  and 
was  negligent,  in  that  on  the  day  aforesaid,  aft- 
er said  plaintiff's  intestate,  who  had  been  drink- 
ing intoxicating  liquor,  had  purchased  a  ticket 
entitling  him   to  safe  transportation  from  this 
city  to  a  place  or  station  in  the  state  of  Mary- 
land called  Dodge  Park,  and  to  fit,  proper,  and 
adequate  protection  while  he,  said  plaintiETs  in- 
testate, was  being  conveyed  to  his  said  destina- 
tion,   and    after   said    plaintiff's    intestate   had 
been   placed   upon   one  of  the   defendant  com- 
pany's cars  by  said  defendant  company,  by  and 
through  its  servants,  agents,  and  employes,  and 
had  taken  his  seat  therein,  and  after  said  car 
had  been  started  from  Washington  for  the  desti- 
nation of  said  plaintiff's  intestate  at  said  Dodge 
Park    Station,    in    the    state    of    Maryland,    as 
aforesaid,  but  long  before  it  had  reached  there, 
said  defendant  company,  in  violation  of  the  duty 
owed  said  plaintiff's  intestate,  as  aforesaid,  who 
waa  behaving  himself  in  a  seemly  and  proper 
manner,  by  and  through  its  conductor,  servant 
or  servants,  or  agents  then  and  there  in  charge 
of  said  car,  maliciously,  willfully,  and  wantonly 
assanlted,  beat,  kicked,  and  grievously  wounded 
and    injured   said   plaintiff's   intestate,   without 
cause  therefor  on  his  part,  and  violently  eject- 
ed and  threw  said  plaintiff's  Intestate  from  its 
said  car,  whereby  and  by  reason  of  which  said 
treatment,  in  the  then  condition  of  said  plain- 
tiCTs   intestate,  he  was  so  dazed,  disabled,  and 
injured  as-that,  after  being  thus  ejected  from 
said  defendant  company's  car,  he  was  in  a  help- 
less   condition,    and    wandered    aimlessly    about 
mid    defendant  company's   tracks   and   right  of 
way  in  his  effort  to  find  and  go  to  his  home  at 
said  Dodge  Park,  in  the  state  of  Maryland,  as 
aforesaid,  until  later  he  was  struck  and  killed 
by    another  of  said  defendant  company's  cars, 
-which   was  south-bound  and  on  its  way  from 
Baltimore  to  the  city  of  Washington  and  Dis- 
trict  of  Columbia." 

Assuming,  as  contended  by  the  plaintiff, 
that  the  expulsion  of  the  deceased  from  the 
defendant's  car  in  the  District  of  Columbia 


fwas  unlawful,  and  that  he  was  assaulted  and 
maltreated  by  the  defendant's  agents  In 
charge  of  the  car,  the  important  legal  ques- 
tion presented  by  the  appeal  is  this:  Does 
the  record  contain  any  evidence  legally  suffi- 
cient to  show  or  tending  to  show  any  legal 
connection  between  the  negligence  alleged 
and  the  death  of  Scott?  Stated  in  another 
way,  did  the  plaintiff  offer  any  evidence  le- 
gally sufiident  to  show  that  there  existed  the 
relation  of  cause  and  effect  between  the  neg- 
ligence alleged  and  the  death  of  Oscar  Scott? 
The  determination  of  this  question  depends 
upon  an  accurate  statement  of  the  material 
facts  appearing  in  the  record.  In  the  last 
analysis,  questions  of  proximate  and  remote 
cause  must  depend  on  the  facts  of  each  par- 
ticular case.  7  Am.  &  Eng.  Ency.  of  Law 
(2d  Ed.)  1381. 

Oscar  Scott  was  32  years  of  age.  He  was 
a  carpenter,  and  was  familiar  with  the  de- 
fendant's road,  having  been  employed  by  the 
company  as  an  Inspector  of  ties.  He  lived 
near  Dodge  Station,  Prince  George's  county. 
Shortly  before  his  death  he  was  working  at 
his  trade  and  was  making  $4  per  day.  On  the 
morning  of  July  1,  1915,  he  left  home  and 
went  to  Washington.  Mrs.  Scott,  his  widow, 
testified  that  he  did  not  go  to  Washington 
that  morning  to  work,  as  he  was  sick;  that 
he  hod  been  home  two  weeks.  The  record  con- 
tains nothing  as  to  Scott's  whereabouts  from 
the  time  he  left  home  until  be  boarded  the 
car  on  his  return  trip  at  about  7 :20  p.  m. 
He  took  a  seat  in  the  smoking  compartment. 
He  was  sick  and  vomited  in  the  car.  A  wit- 
ness said  he  was  "sick  at  the  stomach." 
There  were  four  occupants  of  the  smoking 
compartment,  viz.,  Scott,  a  colored  man,  and 
two  white  men.  After  Scott  vomited,  the  two 
white  men  went  Into  the  passenger  compart- 
ment 

W.  C.  Robinnett  the  motorman,  testified: 
That  he  saw  Scott  on  the  car;  that  as  the 
car  came  along  Bennings  Race  Track  the  con- 
ductor came  out  front  and  said  to  him: 

"That  he  had  a  passenger  back  there  that 
wouldn't  pay  his  fare,  and  that  he  had  been 
drinking  and  wouldn't  pay  bis  fare,  and  he  said: 
'Stop  up  there;  I  want  to  put  him  off.'  That 
was  along  at  Bennings ;  it  was  along  about  Ben- 
nings Race  Track.  So  when  we  got  to  Minne- 
sota avenue  I  stopped  the  car  and  waited  a 
minute,  sitting  in  my  cab,  and  I  heard  a  com- 
motion out  in  the  baggage  room.  The  baggage 
compartment  was  on  the  front,  the  smoker  next 
to  that,  and  the  passenger  compartment  behind 
that.  I  heard  the  commotion  out  there,  and  I 
sat  still  in  my  cab.  I  heard  the  conductor  argu- 
ing with  him,  trying  to  get  him  to  pay  his  fare, 
and  he  would  not  pay  his  fare.  He  said  he 
was  not  going  to  pay  the  conductor  his  fare. 
Then  I  stepped  back  m  the  baggage  part  where 
he  was," 

When  the  car  reached  Minnesota  avenue, 
the  conductor  attempted  to  put  Scott  off.  He 
resisted.  He  was  put  off  twice,  and  jumped 
back,  and  held  to  the  hand  bars.  The  car 
would  move  slowly  and  stop. 

The  witness  White  testified: 


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"He  got  off  the  c«r  a  couple  of  times— they 
got  him  off  the  car  and  he  would  jump  back  on. 
He  was  right  on  the  other  side  of  Minnesota 
avenue  when  witness  saw  the  conductor  kicking ; 
about  a  block  and  a  half  or  two  blocks  from 
Minnesota  avenue.  The  car  had  stopped  the 
last  time  they  put  him  off ;  the  car  was  running 
slow;  it  would  stop  like,  and  they  couldn't  get 
him  off,  and  it  would  run  a  little  further;  he 
was  hanging  onto  the  grips — standing  on  the 
steps ;  didn't  see  whether  or  not  he  was  drag- 
ged ;  heard  the  conductor  tell  Mr.  Scott  to  get 
eff ;  that  is  all  witness  heard.  Didn't  hear  Mr. 
Scott  make  any  reply.  Didn't  hear  the  motor- 
Aian  say  anything.    The  motorman  took  part  in 

gutting  Mr.  Scott  off.  The  last  witness  saw  of 
cott  he  was  going  back  down  the  track  toward 
Minnesota  avenue.  Scott's  apparent  condition 
during  the  time  be  was  being  put  off  was  that  of 
a  sick  man.  He  was  vomiting  when  he  first  got 
on  the  car;  that  is  what  made  me  go  out  of  the 
smoker.  The  conductor's  manner  exercised  to- 
wards Scott  throughout  the  ejectment  was  'an 
ugly  manner.' " 

Bernard  F.  Howard  testified: 

He  was  in  the  passenger  compartment,  and 
heard  a  commotion  in  the  smoidng  car.  'That 
between  the  smoking  and  passenger  compart- 
ments there  was  no  other  compartment  on  the 
car;  when  the  attention  of  witness  was  first 
attracted  by  the  commotion  did  not  investigate 
at  first  to  see  what  it  was  about,  but  later  on  he 
did,  and  found  that  after  the  car  left  Minnesota 
avenue — ^they  stopped  at  Minnesota  avenue  and 
I  understood  they  were  putting  a  man  off — but 
witness  was  reading,  and  did  not  pay  much  at- 
tention to  it  until  after  they  started  np,  and 
witness  heard  some  woman  in  the  back  say, 
That  man  will  get  killed.'  The  car  witness  was 
in  had  a  motorman  and  a  conductor,  and  after 
witness  went  in  the  smoking  car  to  see  what  the 
commotion  was  about — didn't  notice  how  many 
people  were  in  the  smoking  car  at  the  time ; 
only  went  to  the  door:  thinks  there  were  very 
few,  but  couldn't  tell  how  many— first  thought 
that  the  conductor  and  Scott  were  guying  or 
fooling  with  each  other,  and  witness  went  back 
and  sat  down,  but  after  the  car  started  at  Min- 
nesota avenue,  and  heard  this  woman  back  there 
say,  'That  man  will  get  killed,'  went  forward 
through  the  smoking  car  and  found  Scott  stand- 
ing on  the  bottom  step,  with  his  hands  on  the 
brakeholds,  and  saw  the  conductor  trying  to 
get  Scott  to  get  off,  and  after  Scott  wouldn't  get 
off  he  started  kicking  his  hands;  cannot  tell 
with  what  force  these  kicks  were  drove  vrith, 
but  he  was  kicking  with  his  left  foot,  and  seem- 
ed to  be  worked  up  trying  to  get  the  man  off,  and 
he  kept  kicking  him  on  the  hands,  trying  to 
make  him  loosen  his  hold  on  the  handholds. 
They  had  run — they  were  running  very  slow — 
about  a  square  and  a  half,  witness  guesses,  as 
far  as  he  could  judge  from  the  inside  of  the  car, 
and  'Scott  was  holding  on  and  refused  to  get  off. 
He  was  telling  the  conductor  that  he  had  his 
ticket,  and  he  knew  he  had  his  ticket,  and  the 
conductor  told  him  to  get  off.  He  said  he  want- 
ed his  hat,  and  the  conductor  told  him  to  get  off 
and  go  after  his  hat.  The  hat  was  lying  be- 
tween the  tracks.     The  motorman  asked  Scott 

to  get  off.    Scott  said :   'What  in  the  h have 

you  got  to  do  with  it?  What  do  you  want  to 
get  into  it  forV  The  motorman  said:  'I  don't 
want  to  get  into  this;  but,  if  I  do  get  into  it, 
then  you  will  have  to  get  off.'  Then  I  turned 
around  and  went  back  into  the  passenger  part 
of  the  car  and  sat  down  with  my  wife.  Witness 
told  the  conductor  once  that  he  oughtn't  to 
put  that  man  off  between  the  tracks,  but  he 
didn't  pay  no  attention,  and  Scott  was  finally 
put  off  about  a  square  and  a  half  the  other  side 
of  the  fire  stop  at  Minnesota  avenue,  as  near  as 
witness  could  judge  of  it;  he  was  put  off  the 
forward  unA  of  the  car,  on  the  inside,  between 
the  tracks.     Didn't  see  him  at  the  particular 


time  that  his  hold  was  severed  from  the  ear,  but 
when  witness  started  to  sit  down  with  his  wife 
he  heard  somebody  say  that  the  man  was 
off,  and  that  the  man  had  fell  underneath  the 
car.  That  witness  looked  underneath  the  car, 
and  saw  Scott  getting  up  like  from  the  side  of 
the  car,  and  staggering  along  towards  the  edge 
of  the  track."  »         »  "^ 

[1]  It  thus  appears  that  Scott  was  finally 
ejected  from  the  car  in  open  daylight,  in  the 
District  of  Columbia,  not  far  from  Minnesota 
avenue,  and  that  he  was  by  no  means  In  a 
physically  helpless  condition,  as  he  displayed 
considerable  strength  and  determination  in 
resisting  expulsion  from  the  car.  He  was 
no  doubt  excited  and  disturbed  by  this  en- 
counter with  the  conductor;  but  there  is  no 
evidence  in  the  record,  or  offer  of  evidence, 
that  he  was  mentally  unsound,  or  bad  ever 
suffered  from  any  mental  disorder.  The  con- 
dition of  the  deceased's  health  on  the  day  of 
his  death  and  for  two  weeks  prior  thereto 
was  testified  to  by  Mrs.  Scott,  and  there  was 
no  contradiction  of  her  evidence,  and  there- 
fore there  was  no  reversible  error  in  the  rul- 
ing embraced  in  the  first  exception,  wherein 
the  court  refused  to  permit  Mrs.  Scott  to 
testify  as  "to  the  condition  of  the  plaintiS'a 
health  just  prior  to  July  1,  1918." 

From  Minnesota  avenue,  near  which  Scott 
was  finally  expelled  from  the  car,  to  Spring- 
man's  Crossing,  where  he  was  killed,  the 
distance  is  variously  estimated  from  1^  to 
2^  miles.  He  appears  to  have  walked  this 
distance  over  or  along  the  defendant's  right 
of  way  in  less  than  an  hour,  as  he  was  seen 
by  one  of  the  witnesses  in  the  Casualty  Hos- 
pital, Washington,  at  8:30,  where  he  died. 
The  facts  do  not  support  the  allegation  of 
the  narr.  that  after  the  deceased  was  eject- 
ed from  the  car  "he  was  in  a  helpless  condi- 
tion, and  wandered  aimlessly  about  said  de- 
fendant company's  tracks  and  right  of  way 
in  his  effort  to  find  and  go  to  bis  home  at 
Dodge  Park."  That  conclusion  could  be 
reached  only  upon  the  merest  conjecture. 

The  law  does  not  indulge  in  metaphysical 
speculation  and  refinements  upon  the  ques- 
tion of  causation.  In  B.  &  P.  IL  B.  Co.  v. 
Beaney,  42  Md.  117,  Judge  Alvey  said: 

"In  the  application  of  tbe  maxim,  'In  jure  non 
remota  causa  sed  proxima  spectatur,'  there  Is 
always  more  or  less  difficulty,  and  attempts  are 
frequently  made  to  introduce  refinements  that 
would  not  consist  witii  principles  of  rational 
justice.  The  law  is  a  practical  science,  and 
courts  do  not  indulge  refinements  and  subtleties, 
as  to  causation,  that  would  defeat  the  claims  of 
natural  justice.  They  rather  adopt  the  practi- 
cal rule,  that  the  efficient  and  predominating 
cause,  in  producing  a  given  event  or  effect, 
though  there  may  be  subordinate  and  dependent 
causes  in  operation,  must  be  looked  to  in  deter- 
mining the  rights  and  liabilities  of  the  parties 
concerned.  It  Is  certainly  true  that  where  two 
or  more  independent  causes  concnr  in  pro- 
ducing an  effect,  and  It  cannot  be  determined 
which  was  the  efficient  and  controlling  cause, 
or  whether,  without  the  concurrence  of  both,  the 
event  would  have  happened  at  all,  and  a  partic- 
ular party  is  responsible  for  only  the  conse- 
quence of  one  of  such  causes,  in  such  case  a  re- 
covery cannot  be  had,  because  It  cannot  be 
Judicially   determined   that  the  damage  would 


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STATE  V.  WASHINGTON,  B.  A  A.  ELECTRIC  B.  CO. 


549 


have  been  done  without  such  concurrence.  Mar- 
ble T.  Worcester.  4  Gray  [Mass.]  395.  But  It 
is  equally  true,  that  no  wrongdoer  ought  to  be 
allowed  to  apportion  or  qualify  his  own  wrong, 
and  that,  as  a  loss  has  actually  happened  whilst 
his  own  wrongful  act  was  in  force  and  opera- 
tion, he  onght  not  to  be  permitted  to  set  up  as 
a  d^ense  that  there  was  a  more  immediate  cause 
of  the  loss,  if  that  cause  was  put  into  operation 
by  his  own  wrongful  act.  To  entitle  such  party 
to  exemption,  he  must  show,  not  only  that  the 
same  loss  might  have  happened,  but  that  it  must 
have  happened,  if  the  act  complaine<l  of  had 
not  been  done.    Davis  v.  Garrett,  6  Bing.  716." 

In  Baltimore  Olty  Passenger  Ry.  Co.  ▼. 
Kemp,  61  Md.  74,  the  same  disttngolshed 
judge  said  In  discussing  the  question  of  pros- 
iniate  cause: 

"It  is  not  simply  because  the  relation  of  cause 
and  effect  may  be  somewhat  involved  in  ob- 
flcuri^.  and  therefore  difficult  to  trace,  that  the 
principle  obtains  that  only  the  natural  and 
proximate  results  of  a  wrongful  act  are  to  be 
regarded.  It  is  only  where  there  may  be  a  more 
direct  and  immediate  sufficient  cause  of  the 
effect  complained  of  that  the  more  remote  cause 
will  not  be  charged  with  the  effect.  If  a  given 
result  can  be  directly  traced  to  a  particular 
cause,  as  the  natural  and  proximate  effect,  why 
should  not  snch  effect  be  regarded  by  the  law, 
even  though  snch  cause  may  not  always,  and 
under  all  condition  of  things,  produce  like  re- 
sults? •  •  •  The  general  rule  is  stated  [in 
Addison  on  Torts,  6]  with  as  much  clearness 
and  precision  as  will  be  found  in  any  other 
text-writer,  and  he  states  the  rule  to  be  'that 
whoever  does  an  illegal  act  is  answerable  for  all 
the  consequences  that  ensue  in  the  ordinary  and 
natnral  course  of  events,  though  those  conse- 
quences be  immediately  and  directly  brought 
about  by  the  intervening  agency  of  others,  pro- 
vided the  intervening  agents  were  set  in  motion 
by  the  primary  wrongdoer,  or  provided  their  acts 
cansing  the  damage  were  the  necessary  or  legal 
and  natural  consequence  of  the  original  wrong- 
ful act'" 

A  dear  exposition  of  the  doctrine  is  found 
to  Railway  v.  Kellogg,  94  U.  S.  469,  24  L.  Ed. 
256,  In  which  Jndge  Strong  said.  In  discussing 
a  case  In  which  a  sawmill  and  a  quantity  of 
lumber  were  destroyed  by  fire  alleged  to  hare 
been  negligently  communicated  from  the  de- 
fendant's steamboat: 

"The  true  rule  Is  that  what  is  the  proximate 
cause  of  an  injury  is  ordinarily  a  question  for 
the  jury.  It  is  not  a  question  of  science  or  of 
legal  knowledge.  It  is  to  be  determined  as  a 
fact,  in  view  of  the  circumstances  of  fact  at- 
tending it.  The  primary  cause  may  be  the 
proximate  cause  of  a  disaster,  though  it  may 
operate  through  successive  instruments,  as  an 
article  at  the  end  of  a  chain  may  be  moved  by 
a  force  applied  to  the  other  end,  that  force 
being  the  proximate  cause  of  the  movement,  or 
as  in  the  oft-cited  case  of  the  squib  thrown  in 
the  market  place.  Scott  T.  Shepherd  (Squib 
Case)  2  W.  BL  892.  The  question  always  is: 
'Was  there  an  unbroken  connection  between  the 
'wrongful  act  and  the  injury,  a  continuous  op- 
eration? Did  the  facts  constitute  a  continuous 
Koccession  of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some  new 
and  independent  cause  intervening  between  the 
-wrong  and  the  injury?  It  is  admitted  ttiat  the 
rule  is  difficnlt  of  application.  But  it  is  gener- 
ally held  that,  in  order  to  warrant  a  finding  that 
nesligenco,  or  an  act  not  amounting  to  wanton 
-wrong,  is  the  proximate  cause  of  an  injury,  it 
must  appear  uat  the  injury  was  the  natural 
and  probable  consequence  of  the  negligence  or 
wrongful  act,  and  that  it  ought  to  have  been 


foreseen  in  the  light  of  the  attending  circum- 
stances. These  circumstances,  in  a  case  like  the 
present,  are  the  strength  and  direction  of  the 
wind,  the  combustible  character  of  the  elevator, 
its  great  height,  and  the  proximity  and  cum- 
bnstible  nature  of  the  sawmill  and  the  piles  of 
lumber.  Most  of  these  circumstances  were  ig- 
nored in  the  request  for  instruction  to  the  jury. 
Yet  it  is  obvious  that  the  immediate  and  insep- 
arable consequences  of  negligently  firing  the 
elevator  would  have  been  very  different  if  the 
wind  bad  been  less,  if  the  elevator  had  been  a 
low  building  constructed  of  stone,  if  the  sea- 
son had  been  wot.  nr  if  the  lumber  and  the  mill 
had  been  less  combustible.  And  the  defendants 
might  well  have  anticipated  or  regarded  the 
probable  consequences  of  their  negligence  as 
much  more  far-reaching  than  would  have  been 
natural  or  probable  m  other  circumstances. 
We  do  not  say  that  even  the  natural  and  prob- 
able consequences  of  a  wrongful  act  or  omission 
are  in  all  cases  to  be  chargeable  to  the  misfea- 
sance or  nonfeasance.  They  are  not  when  thero 
is  a  sufficient  and  independent  cause  operating 
between  the  wrong  and  the  injury.  In  such  a 
case  the  resort  of  the  sufferer  must  be  to  the 
originator  of  the  intermediate  cause.  Bnt, 
when  there  is  no  intermediate  efficient  cause, 
the  original  wrong  must  be  considered  as  reach- 
ing to  the  effect,  and  proximate  to  it.  The  in- 
quiry must  therefore  always  be  whether  there 
was  any  intermediate  cause,  disconnected  from 
the  primary  fault  and  self-operating,  which 
produced  the  injury.  Here  lies  the  difficulty. 
But  the  inquiry  must  be  answered  in  accord- 
ance with  common  understanding.  In  a  succes- 
sion of  dependent  events  an  interval  may  always 
be  seen  by  an  acute  mind  between  a  cause  and 
its  effect,  though  it  may  be  so  imperceptible  as 
to  be  overlooked  by  a  common  mind.  Thus,  if 
a  building  be  set  on  fire  by  negligence,  and  an 
adjoining  building  be  destroyed  without  any  neg- 
ligence of  the  occupants  of  the  first,  no  one  would 
doubt  that  the  destruction  of  the  second  was  due 
to  the  negligence  that  caused  the  burning  of  the 
first.  Yet  in  truth,  in  a  very  legitimate  sense, 
the  immediate  cause  of  the  burning  of  the  sec- 
ond was  the  burning  of  the  first  The  same 
might  be  said  of  the  burning  of  the  furniture 
in  the  first.  Such  refinements  are  too  minute 
for  rules  of  social  conduct.  In  the  nature  of 
things,  there  is  in  every  transaction  a  succes- 
sion of  events,  more  or  less  dependent  upon 
those  preceding,  and  it  is  the  province  of  a 
Jury  to  look  at  this  succession  of  events  or  facts, 
and  ascertain  whether  they  are  naturally  and 
probably  connected  with  each  other  by  a  con- 
tinuous sequence,  or  are  dissevered  by  new  and 
independent  agencies,  and  this  must  be  deter- 
mined in  view  of  the  circumstances  existing  at 
the  time." 

[2]  Applying  the  accepted  doctrine  announc- 
ed In  the  cases  to  which  we  have  referred  to 
the  facts  of  this  case,  we  hold  that  the  death 
of  Oscar  Scott  was  not  the  natural  and  prob- 
able consequence  of  the  alleged  wrongful  act 
of  the  defendant  in  expelling  him  from  Its 
cars.  All  the  facts  and  circumstances  of  the 
case  show  that  he  was  able  to  take  care  of 
himself;  that  he  was  physically  able  to  do 
so,  and  knew  exactly  what  he  wanted,  and 
the  strength  he  displayed  In  roslstlng  expul- 
sion, and  the  short  time  he  consumed  In  walk- 
ing over  or  along  the  tracks  of  the  company 
to  Springman's  Crossing  on  his  way  home  In- 
dicate that  he  was  not  helpless  or  Irresponsi- 
ble. 

[3]  No  one  was  produced  at  the  trial  who 
saw  the  deceased,  from  the  time  he  was  put 
off  the  car  and  started  back  towards  Minne- 
sota avenue,  until  he  was  Idlled  at  Spring- 


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101  ATLANTIC  KEPORTBB 


(Md 


man's  Crossing.    It  was  said  In  B.  &  O.  R.  R. 
Co.  V.  Allison,  62  Md.  479.  50  Am.  Rep.  233: 

"A  right  of  way  of  a  railroad  company  is  the 
exclusive  property  of  sach  company,  upon 
which  no  unauthorized  person  has  the  right  to 
be,  and  any  one  who  travels  upon  such  right  of 
way,  as  a  footway,  and  not  for  any  business 
with  the  railroad  is  a  wrongdoer  and  a  trespass- 
er; and  the  mere  acquiescence  of  the  railroad 
company  in  such  user  does  not  give  the  right  to 
use  it,  or  create  any  obligation  for  especial  pro- 
tection. R.  R.  Co.  v.  Godfrey,  71  111.  500  [22 
Am.  Rep.  112].  Whenever  persons  undertake 
to  use  the  railroad  in  such  case  as  a  footway, 
they  are  suppoaed  to  do  so  with  a  full  under- 
standing of  ita  dangers,  and  as  assuming  the 
risk  of  all  its  perils.  71  lU.  500  [22  Am.  Rep. 
112];  McLaren  v.  Railroad  Co.,  8  Amer.  & 
Eng.  R,  R  Cases,  219;  Railroad  Co.  v.  Gold- 
smith, 47  Ind.  43;  Railroad  Co.  ▼.  Houston,  95 
U.  S.  702  [24  Ia  Ed.  642];  Railroad  Co.  v. 
Jones,  95  U.  S.  442  [24  L.  Ed.  500] ;  1  Thomp- 
son on  Negligence,  453,  459;  Morrissey  v.  Rail- 
road Ca,  120  Mass.  377  [30  Am.  Rep.  686].  In 
Maenner  v.  Carroll,  46  Md.  212,  which  was  a 
suit  for  injury  received  by  falling  into  an  exca- 
vation which  bad  been  dug  on  the  private  prop- 
erty of  the  defendant  over  which  persons  were 
in  the  habit  of  passing,  but  which  was  not  a 
public  highway,  this  court  declared  the  same 
principle  as  controlling,  and  adopted  the  lan- 
guage of  the  court  in  Hounsell  v.  Smyth,  7  C. 
B.  N.  S.  7.31,  that  in  such  case  'one  who  uses 
the  waste  has  no  right  to  complain  of  an  ex- 
cavation he  finds  there.  He  must  take  the  pei^ 
mission  with  its  concomitant  conditions,  and,  it 
may  be,  perils.'  Binks  v.  Railroad  Co.,  3  B.  & 
S.  244,  Bolch  ▼.  Smith,  7  II.  &  N.  736,  and 
Oautiel  v.  Egerton  Ia  R.  2  C.  P.  371,  are  cited 
In  support  of  the  law  thus  indorsed.  Inasmuch, 
therefore,  as  the  presence  of  the  deceased  upon 
the  road  of  the  appellant  at  that  point  was  a 
trespass  it  would  seem  to  be  necessary  to  show 
some  negligence,  amounting  to  the  omission  of 
a  general  and  imperative  duty  toward  him  not- 
withstanding, which  ought  to  subject  the  appe- 
lant to  liability  in  the  action  brought." 


This  the  appellant  ntterly  failed  to  do.  It 
is  said  in  7  Am.  &  Eng.  Ency.  of  Law,  382: 

"In  the  application  of  the  principle  that  th« 
law  looks  at  the  proximate,  and  not  at  the  re- 
mote, cause  of  an  injury,  lies  the  great  difll- 
culty  in  the  law  of  contributory  negligence.  No 
general  rule  for  determining  when  causes  are 
proximate,  and  when  remote,  has  yet  beea 
formulated.  But  the  principles  that  govern  the 
determination  of  the  question  are  well  settled. 
When  it  is  once  established  that  a  person  in- 
jured by  the  negligence  of  another  has  been 
guilty  of  a  want  of  ordinary  care,  it  becomes 
necessary  to  determine  whether  such  want  of 
ordinary  care  proximately  contributed  to  the 
injury  aa  an  efficient  cause,  or  only  remotely, 
as  a  condition  or  remote  cause  thereof.  If  it 
proximately  contributed,  there  can  be  no  recov- 
ery ;  but,  if  it  was  only  a  remote  cause  or  con- 
dition of  the  injury,  a  recovery  can  be  had." 

We  therefore  hold  that  the  proximate  cause 
of  the  death  of  Oscar  Scott  was  his  own  want 
of  care  In  being  upon  the  defendant's  tracks 
under  the  circumstances  disclosed  by  the  evi- 
dence. The  appellant  relies  upon  the  cases  of 
Warren  v.  Railway,  243  Pa.  15,  80  Atl.  828; 
McCoy  V.  MiUvllle  Trac.  Co.,  83  N.  J.  Law, 
508,  85  Atl.  358;  Railway  v.  Parry,  67  Kan. 
515,  73  Pac.  105;  Eidson  t.  Railway  (Miss.) 
23  So.  369 ;  Guy  v.  Railway,  30  Hnn  (N.  Y.) 
309;  Railway  v.  Ellis,  Adm'r,  97  Ky.  &30,  30 
S.  W.  079.  But  those  cases  can  have  no  con- 
trolling effect  in  this,  because  the  facta  wh<d- 
ly  fail  to  bring  this  case  vrithin  the  prin- 
ciples announced  therein.  Those  cases  dealt 
with  the  obligations  of  the  railway  towards 
passengers  who  were,  from  drunkenness  or 
other  causes,  helpless  and  unable  to  care  fi>r 
themselves. 

For  the  reasons  stated  the  Judgment  win 
be  affirmed. 

Judgment  affirmed. 


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MEKRTMAX  v.  WHEELSB 


661 


(uo  Ma.  E«n 

MERRTMAN  v.  WHEELEE.    (No.  8.) 
(Oonrt  of  Appeals  of  Maryland.    Jnne  20, 1917.) 

1.  DxBT,  Action  ot  4=»11— Decxasatiohs— 
Stjfticienct. 

A  declaration,  aTerrinfr  and  declaring  upon 
a  contract  nnder  seal,  giving  the  date  thereof, 
and  alleging  that  the  dSendant  covenanted  and 
agreed  to  pay  the  plaintiff  a  certain  and  fixed 
sum  for  the  erection  and  completion  of  a  dwell- 
ing house,  that  the  house  was  erected  according 
to  the  terms  of  the  contract,  and  there  was  due 
and  owing  under  the  contract  a  sum  named,  ac- 
cording to  a  statement  filed  with  the  declaration, 
and  that  the  defendant  refuses  to  pay  the  sum 
due  the  plaintiff,  although  wanting  in  clearness, 
was  good  in  an  action  of  debt  npon  a  specialty. 
[Ed.  Note. — For  other  cases,  see  Debt,  Action 
of,  Cent  Dig.  |§  27,  28.] 

2.  Assumpsit,  Action  of  «=»19  —  Dboiaba- 
tion— sofficibnct. 

The  declaration  was  not  good  in  assumpsit. 
[Ed.  Note. — ^For  other  cases,  see  Assumpsit, 
Action  of.  Cent.  Dig.  ii  81-99.] 

8.  CoTKNANT,  AcnoN  or  «s»12  —  Dbclaba* 

TION8— SCFFICntNCY. 

Nor  was  it  a  good  declaration  in  an  action 
of  covenant. 

[Ed.   Note.— For  other  cases,   see  Covenant, 
Action  of,  Cent.  Dig.  |  16.] 

4.  AsBTjMPsiT,  Action  of  «=>6(2)— Action  on 

Specialty. 
Assumpsit  is  not  sustainable  npoa  a  spe- 
cialty. 

[Ed.  Note.— For  other  cases,   see  Assumpsit, 
AcUon  of.  Cent  Dig.  {{  :!9-3(i.] 

6.  Covenant,  Action  of  «=»1— Whkbx  Pat- 

ifXNTs  Dub. 
Covenant  will  not  lie,  when  the  payments 
are  all  due  and  payable. 

[Ed.   Note.— For   other  cases,   see   Covenant, 
Action  of.  Cent  Dig.  {|  1-7.] 

6.  Debt,  Action  of  ^3l2— Iupbopeb  Pleas. 

The  suit  and  declaration  being  in  debt  on  a 
specialty,  the  defendant's  pleas— (1)  that  he  nev- 
er was  indebted  as  alleged;  (2)  that  he  did  not 
promise  as  alleged — were  improper. 

[Ed.  Note.— For  other  cases,  see  Debt,  Action 
of.  Cent  Dig.  SJ  29-33.] 

7.  Debt,  Action  of  «=»12— Pleas— Qesnebai, 
Issue. 

In  an  action  of  debt  upon  a  specialty,  the 
general  issue  plea  is  non  est  factum;  and,  if 
other  defenses  are  relied  upon,  they  must  be  spe- 
cially pleaded. 

[Kd.  Note.— For  other  cases,  see  Debt,  Action 
of.  Cent  Dig.  iS  29-33.] 

8.  Dbbt,  Action  of  «=»12— Pleas— Patmbnt 
.AJVD  Set-Off. 

The  declaration  being  in  debt  upon  a  special- 
ty, defendant's  pleas  of  payment  and  set-off  were 
{rood,  and,  if  sustained  by  proof,  would  have 
been  a  sufficient  answer  to  plaintiff's  claim. 

[EJd.  Note. — For  other  cases,  see  Debt,  Action 
of.  Cent  Dig.  K  29-33.] 

9.  Debt,  Action  of  «=»12— Impbopbb  Pleab— 
Faixure  to  Sustain  DEiniBREB. 

In  debt  on  a  specialty,  the  ordinary  general 
issue  pleas  in  assumpsit  were  improper,  nnd  the 
court  erred  in  overruling  plaintiff's  demurrer 
thereto. 

rKd.  Note.— For  other  cases,  see  Debt,  Action 
of.  Cent  Dig.  H  29-83.] 


10.  Debt,  Action  of  «=9l8— Etidbncb— Suf- 

FICIENCT. 

In  debt  on  a  specialty,  evidence  at  the  con- 
clusion of  plaintiffs  testimony  held  legally  suffi- 
eient  for  submission  to  the  jury. 

[EM.  Note.— For  other  cases,  see  Etebt  Action 
of.  Cent  Dig.  {|  41,  42.] 

Appeal  from  Circuit  Court,  Baltimore  Coun- 
ty ;  Wm.  H.  Harlan,  Judge. 

"To  be  ofDdally  reported." 

Suit  by  Marion  H.  Merrymaa  against 
George  F.  Wheeler,  Jr.  Judgment  for  defend- 
ant, and  plaintiff  appeals.  Reversed,  and 
new  trial  awarded,  with  costs  to  appellant 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
THOMAS,  URNER,  and  STOCKBRIDGB,  JJ. 

James  £.  Tlppett,  of  Baltimore,  for  appel- 
lant T.  Scott  OfTutt,  of  Towson  (George 
Hartman  and  George  O.  Wheeler,  both  of 
Towson,  on  the  brief),  for  appellee. 

BRISCOE,  J.  The  plaintiff  brought  this 
salt  against  the  defendant  In  the  circuit 
court  for  Baltimore  county,  to  recover  an  al- 
leged balance  due  on  a  building  contract 
dated  the  22d  day  of  June,  1916.  The  plain- 
tiff's declaration  states  the  cause  of  action 
as  follows:  For  that  the  defendant  by  his 
contract  under  seal  bearing  date  May  17, 
1906,  covenanted  and  agreed  to  pay  the  plain- 
tiff the  sum  of  $3,600  for  the  erection  and 
completion  of  a  certain  frame  dwelling  house 
In  the  village  of  Towson,  Baltimore  county, 
state  of  Maryland ;  that  the  plaintiff  erected 
said  house  according  to  the  terms  of  said  con- 
tract; and  that  there  is  due  and  owing  to 
the  plaintiff  under  said  contract  the  sum  of 
$197.60,  as  per  statement  herewith  filed, 
which  sum  the  defendant  refuses  to  pay. 
The  building  contract  was  filed  with  the  dec- 
laration, and  is  set  out  In  the  record.  With 
the  declaration  and  contract  the  following  ac- 
count was  filed: 
George  F.  Wheeler,  to  Marion  H.  Merryman,  Dr. 

To  amount  due  on  contract  for  erec- 
tion of  house  on  Penna.  Ave.,  Tow- 
son    $.3,600.00 

By  cash  on  account  as  per  contract  . .     3,340.00 

Sept  5,  1906,  balance  due $  260.00 

To  int  on  $260.00  for  eight  and  one- 
half  years,  $132.60;  Aug.,  1915,  re- 
ceived int.  $132.60,  and  received  on 
account  of  principal 62.40 

$  197.60 
The  defendant.  It  appears,  demurred  to  the 
declaration.  This  demurrer  was  overruled, 
and  the  declaration  held  to  be  good,  upon 
the  theory  that  the  suit  was  one  in  assumpsit 
and  not  upon  a  sealed  contract  Thereupon 
the  defendant  pleaded:  First,  that  he  never 
was  indebted  as  alleged;  second,  that  he  did 
not  promise  as  alleged;  third,  payment; 
and,  fourth,  that  the  plaintiff  is  Indebted  to 
the  defendant  in  the  sum  of  $030,  with  in- 
terest, in  liquidated  damages,  at  $10  per  day 
of  63  days,  for  violation  of  article  6  of  the 


sVor  other  ossm  ■«•  sam*  tople  and  KBT-NUMBER  In  all  Key-Numberad  Dlceata  and  Ina*x«« 


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101  ATLANTIO  REPORTER 


(Md. 


contract  declared  on,  by  failure  to  complete 
and  carry  out  said  contract  by  August  17, 
1906,  the  date  named  therein,  the  defendant 
being  Inconvenienced  by  said  delay  until 
October  20,  1906,  which  amount  the  defend- 
ant Is  willing  to  set  off  against  the  plaintiff's 
claim. 

The  plaintiff's  demurrer  to  the  defendant's 
flrst,  second,  and  fourth  pleas,  was  overruled, 
and  thereupon  the  docket  entries  show  that 
Issue  was  Joined  upon  all  four  pleas,  and  the 
case  was  submitted  to  the  court  for  triaL 
At  the  conclusion  of  the  evidence  on  the  part 
of  the  plaintiff,  the  court  granted  a  prayer 
directing  a  verdict  for  the  defendant,  upon 
the  ground  that  under  the  pleadings  and  the 
evidence  the  plaintiff  was  not  entitled  to 
recover,  and  the  verdict  must  be  for  the  de- 
faidant  The  action  of  the  court,  In  its  rul- 
ing upon  this  prayer,  constitutes  the  only  ex- 
ception brought  up  by  the  record.  A  Judg- 
ment on  the  verdict  in  favor  of  the  defendant 
for  costs  was  entered  on  the  13th  of  Novem- 
ber, 1916,  and  from  that  Judgment  this  ap- 
peal has  been  taken. 

[11  While  the  declaration  filed  In  the  case 
Is  somewhat  loosely  drawn,  and  Is  wanting  In 
that  clearness  of  statement  which  is  required 
by  the  rules  of  good  pleading,  we  think  its 
averments  are  sufficient  to  entitle  It  to  be  sus- 
tained as  a  good  declaration  in  an  action  of 
debt  upon  a  specialty.  The  declaration  avers 
and  declares  upon  a  contract  under  seal,  bear- 
ing date  the  17th  of  May,  1906,  and  alleges 
that  the  defendant  covenanted  and  agreed  to 
pay  the  plaintiff  a  certain  and  fixed  sum  for 
the  erection  and  completion  of  a  dwelling 
house;  that  the  house  was  erected  according 
to  the  terms  of  the  contract,  and  there  was 
due  and  owing  under  the  contract  the  sum  of 
$197.60,  according  to  a  statement  filed  with 
the  declaration ;  and  that  the  defendant  re< 
fuses  to  pay  the  sum  due  the  plaintiff. 

The  suit  Is  therefore  upon  a  contract  under 
seal,  to  recover  in  debt  upon  a  specialty,  and 
where  the  amount  claimed  to  be  due  Is  spe- 
cially stated  In  the  dedaratlon  to  be  due  and 
owing  according  to  the  terms  of  this  con- 
tract. The  contract  and  an  account  showing 
the  plaintiff's  claim  Is  filed  with  the  declara- 
tion and  made  a  part  thereof.  The  general 
rules  as  to  the  proper  and  essential  averments 
to  make  a  good  declaration  and  to  constitute 
a  ground  of  action,  under  our  various  forms 
and  system  of  legal  pleading,  will  be  found 
set  out  In  article  75,  p.  1638,  of  the  Code, 
and  the  cases  there  cited. 

[2-J]  It  Is  clear,  under  the  averments  of 
the  declaration  in  this  case.  It  cannot  be 
treated  as  a  good  declaration,  either  in  as- 
sumpsit or  In  covenant  It  Is  well  settled 
that  assumpsit  is  not  sustainable  upon  a 
specialty,  and  covenant  will  not  He  or  be  sup- 
ported when  the  payments  are  all  due  and 
payable,  as  In  the  present  case.  1  Chitty's 
Pleading,  118,  129,  388,  376,  385;  Fisher's 
''^wentlals  of  Pleading,   122,  124;    1   Poe's 


Pleading  and  Practice,  145,  146,  139;  Booth 
V.  Hall,  6  Md.  4;  Waldeck  Co.  v.  Bmmart, 
127  Md.  474,  96  AtL  634. 

[6,  7]  The  suit  and  declaration  in  the  case, 
being  In  debt  on  a  specialty,  the  defendant's 
first  two  pleas  were  improper  pleas.  The 
general  issue  plea  In  this  form  of  action 
is  non  est  factum,  and  If  other  defenses  are 
relied  on  they  must  be  specially  pleaded.  1 
Poe  on  Pleading,  625;  Fisher's  Essentials 
of  Pleading,  55,  56;  1  Chltty  on  Pleading, 
510,  511;  Waldeck  Co.  v.  BUnmart,  127  Md. 
476,  96  AtL  634. 

[8]  The  defendant's  third  and  fourth  spe- 
cial pleas  of  payment  and  setoff  were  good 
and  proper  pleas,  and.  If  sustained  by  proof, 
would  have  been  a  full  and  sufficient  defense 
and  answer  to  the  plaintiff's  claim.  Steele  v. 
Sellman,  79  Md.  1,  28  Aa  811;  1  Poe's  Plead- 
ing, 626,  651,  614;  1  Chitty  on  Pleading,  595, 
511 ;   Code  P.  G.  L.  art  76,  (  12. 

[•]  The  action  of  the  court  in  overruling 
the  plaintiff's  demurrer  to  the  defendant's. 
first  and  second  pleas  was  therefore  error, 
because  they  were  the  ordinary  general  Is- 
sue pleas  In  assumpsit,  and  not  proper  pleas 
In  debt  on  a  specialty.  The  case  appears  to 
have  been  tried  upon  Joinder  of  issue  on  the 
third  and  fourth  pleas,  and  these  were  good 
pleas,  and  it  Is  not  clear  that  the  plaintiff 
Buffefred  any  injury  by  the  ruling  of  the  court 
on  the  pleadings,  and  we  should  hesitate  to 
reverse  the  Judgment  for  the  defective  plead- 
ing, if  this  was  the  only  error  in  the  rulings 
of  the  court  beAow  disclosed  by  the  record. 
McCart  T.  Regester,  68  Md.  429,  13  Atl.  361; 
Chappell  T.  Real  Estate  Co.,  89  Md.  263,  42 
Atl.  936;  Charles  Go.  v.  Mandany<^l,  93  Md. 
150,  48  Atl.  105a 

[10]  There  was  error  in  the  ruling  of  the 
court  in  granting  the  defendant's  prayer 
withdrawing  the  case  from  the  Jury,  at  the 
conclusion  of  the  plalntUTs  testimony,  be- 
cause the  evidence  as  disclosed  by  the  record 
was  legally  sufficient  to  have  taken  the  case 
to  the  Jury,  and  It  should  have  been  submit- 
ted for  their  consideration,  and  not  decided 
by  the  court  Burke  v,  Baltimore,  127  Md. 
555,  96  AtL  693;  Baltimore  t.  NeaL  65  Md. 
438,  5  AU.  338. 

The  plaintiff  testified  in  substance  that  he 
was  a  contractor  and  a  builder,  and  that  ho 
had  been  employed  by  the  defendant  to  bnlld 
a  house  for  him  in  Towson,  Baltimore  coun- 
ty ;  that  it  had  been  completed,  and  was  now 
occupied  by  the  defendant;  that  at  the  time 
the  house  was  completed  there  was  a  bal- 
ance due  on  the  contract  price  of  $360,  and 
the  whole  of  this  amount  had  not  been  paid. 
He  then  testified  as  to  a  conversation  with 
the  defendant  about  15  months  prior  to  the 
suit,  as  to  the  indebtedness  and  the  balance 
due  on  the  contract  as  follows: 

When  Mr.  Wheeler  came  down  to  my  house, 
my  daughter  was  sitting  in  the  room.  Mr. 
Wlieeler  said:  "Mr.  Merryman,  about  the  bal- 
ance due  you,  you  are  mistaken,  as  it  is  only 
$260;   that  i»  all  that  I  owe  yon,  but  I  cannot 


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Md.) 


BEACHET  ▼.  HEIFI^B 


653 


pay  all  that  now,  lint  I  will  pay  it  along  as  I 
can.  I  have  one  of  my  sons  working  in  Balti- 
more now,  and  he  is  willing  to  Iielp  me  out,"  I 
told  him  that  that  was  all  right,  and  asked  him 
how  mach  he  could  give  me,  and  when  the  pay- 
ments would  be  made.  He  told  me  that  he 
would  make  a  payment  the  comine  week.  He 
made  that  payment,  and  he  made  payments 
along  at  different  times  until  he  had  paid  $195, 
and  then  he  stopped.  He  ran  along  for  a  long 
time,  and  I  didn't  know  why  he  di&'t  pay  me. 
I  sent  him  a  statement,  and  then  he  called  to  see 
me  and  said:  "Mr.  Merryman,  I  have  paid  yon 
all  the  money  that  I  am  going  to  pay  yon." 
Then  I  said  to  him  that  that  was  not  right,  that 
I  had  waited  nine  years  for  this  money,  that 
I  needed  the  money  to  keep  my  children  in 
school,  that  I  had  waited  nine  years  for  the 
money,  and,  if  he  did  not  pay  me,  I  was  going 
to  make  him  pay  me. 

He  further  testified  that  he  had  received 
and  had  been  paid  for  all  thd  work  on  the 
house,  except  the  $360,  less  the  credit  of 
$195. 

BOSS  Merryman,  the  plaintUTs  daughter, 
testified  that  she  knew  the  deifendant;  that 
she  was  present  and  heard  the  conversa- 
tion and  interview  between  her  father  and 
the  defendant,  at  the  father's  house,  relative 
to  the  amount  of  money  due,  and  stated  that 
thd  conversation  was  as  follows: 

Q.  Did  yon  hear  what  Mr.  Wheeler  said  at 
the  interview  about  owing  Mr.  Merryman  any 
money?  A.  Yes,  sir.  Q.  State  what  was  said. 
A.  Father  said  that  he  owed  him  $360,  and  he 
admitted  that  he  owed  him  $260.  Q.  Mr. 
Wheeler  said  that  he  owed  your  father  only 
$2607  A.  Yea,  sir.  Q.  Did  yon  hear  him  say 
that?  A.  Yes,  sir;  and  his  son  was  present  at 
that  interview,  too.  Q.  Whose  son?  A.  Mr. 
Wheeler's  son.  Q.  Was  any  payment  made  at 
that  time  to  yonr  knowledge— Uie  time  of  the  in- 
terview?   A.  None  that  I  know  of. 

Upon  this  state  of  fticts,  without  a  further 
discussion  of  the  testimony,  we  think  the 
case  was  one,  upon  the  authorities,  for  the 
consideration  of  the  Jury,  and  the  Instruction 
of  the  court  below  was  clearly  erroneous. 

For  the  rcsasons  stated,  and  for  the  errors 
Indicated,  the  Judgmmt  must  be  reversed, 
and  a  new  trial  will  be  awarded. 

Judgment  reversed,  and  new  trial  awarded, 
wltb  costs  to  the  apiiellant. 


(130  Ifd.  (83) 

BBACHEY  et  al.  v.  HEIPLB  et  ■!.    (No.  21.) 

(Court  of  Appeals  of  Maryland.    June  27, 1917.) 

1.  Equttt  43>227  —  Dekubreb  —  Puhatukb 
S*nJ[Ne— OBjKonoits  Avaii^ablb. 

"Wheie  by  agreement  demnrrers  to  a  bill 
-were  refiled  two  days  after  an  amendment  of  the 
bin  by  interlineation,  and  a  decree  sustaining 
tiie  demnrrers  and  dismissing  the  bill  was  filed 
Ions'  before  an  order  of  publication  against  a 
nonresident  defendant  could  have  expired,  the 
demurring  defendants  had  no  standing  to  object 
to  tbe  bill  on  the  groond  that  such  nonresident 
•wnB  a  necessary  party  and  had  not  been  served 
by  publication  with  the  bill  as  amended. 

CEid.  Note.— For  other  cases,  see  Ekinity,  Cent 
rAg.  S  B18.1 


2.  Equity  «s>150(1)  —  Multifabiousness  — 
JoiNDEB  or  Defendants. 

As  alleged  in  the  bill,  plaintiffs  and  B.  pur- 
chased land,  and  title  was  taken  in  B.'s  name  as 
trustee;  the  terms  of  the  trust  being  that  he 
should  dispose  of  it  for  the  benefit  of  plaintiffs 
and  himself.  He  sold  tbe  land  to  the  A.  Co. 
for  cash,  a  note  of  the  A.  Co.  secured  by  bonds, 
and  $>SO,000  of  bonds,  but  represented  to  plain- 
tiffs that  only  $15,000  of  bonds  were  received. 
In  consummation  of  tbe  fraud  he  conveyed  the 
property  to  the  A.  Co.,  M.,  and  O.  Temporary 
certificates  were  issued  in  lieu  of  bonds,  certifi- 
cates for  $65,000  being  issued  to  M.  and  the 
A.  Co.'s  agents,  who  subsequently  exchanged 
them  for  bonds.  M.  loaned  her  bonds  to  the  A 
Co.,  which  pledged  them  to  a  bank,  and  plain- 
tiffs did  not  know  whether  the  bank  was  a 
bona  fide  holder,  bot,  if  so,  claimed  the  equity 
in  the  bonds.  The  A.  Co.'s  agents  were  not  bona 
fide  holders,  but  received  the  bonds  as  part  of 
the  plan  to  defraud  plaintiffs.  B.  had  disap- 
peared, and  the  clerk  of  a  Pennsylvania  court 
had  taken  into  his  custody  the  temporary  cer- 
tificates issued  to  B.  and  filed  them  in  court. 
The  trustee  under  the  deed  of  trust  securing  the 
bonds  was  demanding  the  delivery  of  tibese  cer- 
tificates l>efore  issuing  bonds  in  exchange  there- 
for. Plaintiff  sought  the  appointment  of  a  new 
trustee,  and  the  recovery  by  him  of  all  of  the 
bonds,  and  an  injunction  against  their  transfer. 
Held,  that  the  A.  Co.,  its  agents,  M.,  C,  the 
trustee  under  the  deed  of  trust,  the  clerk  of  the 
Pennsylvania  court,  and  the  bank  mentioned 
were  all  proper  parties,  and  the  bill  was  not 
multifarious  because  of  their  joinder  with  B.  as 
defendant. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  a  84a,  871,  373,  878.]  "^     ■" 

3.  BQurrr  «=s>150(l)  —  MtrLTiFABiotrsKEss  — 
Joinder  or  Defendants. 

The  objection  to  a  bill  on  the  ground  of 
multifariousness  onght  only  to  apply  where  the 
case  of  each  defendant  is  entirely  distinct  from 
that  of  other  defendants,  and  it  is  not  indispen- 
sable that  all  of  the  parties  should  have  an  in- 
terest in  all  of  the  matters  contained  in  the  bill; 
it  being  sufficient  if  each  party  has  an  interest 
in  some  material  matters  in  the  suit  and  that 
they  are  comected  with  others. 

raid.  Note.— For  other  cases,  see  Bqnitr,  Cent 
mg.  U  342,  371.  373,  S78.r         "*    -J"  "=  '• 

4.  EQumr  «s»S62  — Dibmibsai.— Obounds  — 

MlTLTITABIOUSNEfiS. 

If  a  bin  is  mnltifarions  by  reason  of  the  mis- 
joinder of  defendants,  plaintifb  should  be  put  to 
their  election,  and  the  bill  should  not  be  dis- 
missed in  toto. 
{Ed.  Note.— For  other  cases,  see  Eanitgr,  Gent. 

6.  Tbustb     «s>371(1)— ENFOBcxiniNi^PueAD- 

INO. 

In  a  suit  by  coowners  of  land,  title  to  which 
was  held  in  tiie  name  of  B.,  one  of  the  co> 
owners,  as  trustee,  to  enforce  the  trust  in  the 
consideration  for  a  sale  of  the  land  by  B.,  of  a 
part  of  which  consideration  B.  and  other  de- 
fendants had  sought  to  defraud  plaintifb,  the 
allegations  of  the  bill  held  not  contradictory  and 
inconsistent. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 
Dfe.  H  588,  699.]  ^^ 

6.  Tkustb  «=»359(S)— EtnroBOEiiBNT— Natubb 
OF  Revkdt. 
A  co-owner  of  land,  holding  titie  for  himself 
and  other  coH>wnerB  as  trustee,  conveyed  the 
land,  corporate  bonds  being  a  part  of  the  con- 
sideration, but  deceived  his  co-ovmers  as  to  the 
amount  of  bonds,  and  with  the  purchasers, 
agents,  and  others  sought  to  defraud  his  co- 
owners  of  a  part  of  the  bonds.    He  had  disap- 


^sssFor  oUmf  easss  as*  aaiae  topla  and  KBY-MUMBBR  in  all  Key-Nombsrsd  Dlswts  and  IndMss 


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101  ATI/ANTIC  REPORTER 


(Md. 


poared,  and  his  co-ownera  brouirht  a  suit  to  have 
a  new  trustee  appointed,  to  collect  and  recorer 
the  bonds  wrongfully  diverted  from  the  parties 
holding  them,  and  for  an  injunction  against  their 
transfer.  HM,  that  equity  had  jurisdiction,  as, 
even  though  a  court  of  law  would  have  had  ju- 
risdiction in  some  matters,  it  could  not  have 
appointed  a  new  tnistee,  or  given  plaintiffs  all 
the  relief  they  were  entitled  to,  and  a  court  of 
equity  at  least  had  concurrent  jurisdiction  be- 
cause of  the  fraud,  and  special  jurisdiction  be- 
cause of  the  trust. 
[Ed.  Note.— For  other  cases,  see  Trusts,  Cent 

Dig.  i  see.] 

7.  EqtriTT  «=»119  —  Sebviok  or  Pbocebs  — 
Sebvicb  bt  Pubucation. 

The  proceeding  being  in  rem,  and  not  in 
personam,  the  original  trustee  could  be  proceed- 
ed against  by  publication. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  f§  293-305.] 

8.  Tbttsts     «=»371(2)— Enpobckhknt— Pixad- 
rno. 

As  the  statute  of  frauds  does  not  provide 
that  trusts  shall  be  constituted  by  writing,  but 
only  that  all  declarations  or  creations  of  trust 
■hall  be  manifested  and  proved  by  writing,  a 
bill  seeking  the  enforcement  of  a  trust  need  not 
charge  the  trust  to  be  in  writing,  as  the  writing 
is  no  part  of  the  trust,  but  only  the  evidence  to 
prove  it. 

[Ed.  Note.— For  other  caaee,  see  Trusts,  Cent. 
Dig.  «{  589-591.] 

9.  Tbtjsts  «=>63%— Resultino   TBtrsTB— Op- 

KBATION   OF  STATUTI:  OF  FRAUDS. 

Under  the  statute  of  frauds,  resulting  tmsta 
are  not  required  to  be  in  writing. 

[Ed.  Note.— For  other  cases,  see  Trusta,  Cent 
Dig.  {  93.] 

10.  Tbvsts  «s>80(1)  —  Rkstotiwo  Tbttsts  — 
Sttfficiency  of  Evidence. 

A  resulting  trust  must  be  clearly  proved,  to 
justify  the  court  in  granting  reliel 

[Ed.  Note.— For  other  cases,  see  Trusta,  Cent 
Dig.  {  134.] 

11.  E>QurrT  «=»152— PtEADiNO— ExHiBira 
A  co-owner  of  land,  who  held  title  as  trus- 
tee for  himself  and  his  co-owners,  conveyed  the 
land  as  trustee,  but  attempted  to  defraud  his  co- 
owners  of  a  part  of  the  corporate  bonds  received 
(m  the  sale,  and  they  brought  a  suit  to  establish 
and  «iCorce  the  trust  in  such  bonds,  and  to  en- 
join a  transfer  of  the  bonds  by  the  person  hold- 
ing them.  HeUL  that  a  copy  of  the  deed  from 
the  truatee  ahould  have  been  filed  with  the  bill, 
under  Code  Pub.  Civ.  Laws,  art  16,  {  142,  pro- 
viding that  no  order  or  process  shall  be  made  or 
issued  upon  any  bill,  petition,  or  other  paper 
until  such  bill,  petition,  or  other  paper,  together 
with  all  exhibits  referred  to  as  parts  thereof,  be 
actually  filed  with  the  clerk  of  the  court,  as  the 
failure  to  file  such  copy  prevented  the  issuance 
of  an  injunction,  and  the  copy  should  also  have 
been  filed  to  justify  the  other  relief. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Diis.  H  383-385.] 

12.  Afpiai.  and  Erbob  «C31106(S)  —  Rkuand 
Without  Decibion— Grounds. 

It  being  improbable  that  the  demurrer  to  the 
bill  was  sustained  because  of  the  failure  to  file 
a  copy  of  such  deed,  and  the  bill  not  being  de- 
murrable on  any  other  ground,  the  Court  of  Ap- 
peals would  remand  the  cause  without  affirming 
or  reversing,  and  a  copy  of  the  deed  could  then 
be  filed  and  further  proceedings  taken. 
'  {Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  f§  4380^301.] 


13.  Costs  9=9243  —  Costs  or   Appeal  to 

Abide  the  Event. 
On  remand  of  a  cause  without  affirming  or 
reversing,  the  costs  will  be  allowed  to  abide  the 
resnlt  of  the  case. 

[EH.  Note.— For  other  cases,  see  Costs,  Cent 
Dig.  §§  938,  039,  946.] 

14.  Trusts  @=>365<2)— Enforceuent— LmriA- 
TioNB  AMD  Laches. 

A  co-owner  of  land,  holding  title  as  trustee 
for  himself  and  his  co-owners,  conveyed  theland, 
taking  corporate  bonds  as  part  of  the  considera- 
tion, but  deceived  his  co-owners  as  to  the  amount 
of  the  bonds,  and  in  collusion  with  the  pur- 
chaser's agents  and  others  sought  to  defraud  his 
co-owners  of  a  part  of  the  bonds.  He  disap- 
peared, and  less  than  three  years  after  the  sale 
his  co-owners  filed  a  suit,  in  which  an  amended 
bill,  filed  less  than  a  year  later,  sought  to  es- 
tablish and  enforce  a  trust  in  the  bonds  with- 
held. The  amended  bill  alleged  that  plaintifb 
were  not  aware  of  the  real  transaction  until 
shortly  before  the  amended  bill  was  filed,  and 
long  after  the  original  bill  was  filed.  Held,  that 
the  suit  was  not  barred  by  limitations  or  laches. 
[Ed.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  I  571.] 

Appeal  from  Circuit  Court  of  BaltimoTtt 
City;  H.  Arthur  Stump,  Judge. 

Suit  by  E.  M.  Beachey  and  others  against 
Aaron  F.  Heiple  and  others.  From  a  de- 
cree sustaining  demurrers  and  dismissing  the 
bill,  complainants  appeal  Cause  remanded, 
without  afflrmlng  or  reversing. 

Argued  before  BOYD,  C.  J.,  and  BRISGOB, 
BUUKia,  TUOMAS,  PAl^USONl,  and 
STOCKBRIDOB,  JJ. 

Frank  B.  Ober  and  Stuart  S.  Janney,  both 
of  Baltimore  (Ritchie  &  Janney,  of  Baltimore, 
on  the  brief),  for  appellants.  Julius  H.  Wy- 
man  and  Jacob  S.  New,  both  of  Baltimore 
(James  T.  O'Neill  and  Duvall  ft  Baldwin,  all 
of  lialtimore,  on  the  brief),  for  appelleea. 

BOTD,  C.  J.  This  is  an  appeal  fr(»n  a  de- 
cree sustaining  demurrers  to  and  dismissing 
an  amended  and  supplemental  bill  of  com- 
plaint; filed  by  the  appellants  against  the 
appellees  and  others.  The  original  bUl  made 
the  AJaz  Consolidated  Coal  C}ompany,  the 
Mortgage  Guarantee  Company,  Aaron  F. 
Heiple,  and  Harvey  M.  Berkley  defendants, 
and  the  amended  and  supplemental  bill  made 
the  State  Bank  of  Maryland,  the  Walker- 
Wadsworth  Company,  A.  B.  Osgoodby,  Mary 
L.  MacmuUen,  and  James  Connell  defendants. 
In  addition  to  those  In  the  original  bilL 
Mary  L.  MacmuUen,  James  Connell,  A.  B. 
Osgoodby,  the  Walker-Wadswofth  Company, 
and  the  State  Bank,  of  Maryland  demurred  to 
the  amended  bill,  alleging  as  reasons  for 
the  demurrers:  (1)  That  the  plalntUCs  had 
not  stated  such  a  case  as  entitled  them  to  re- 
lief: (2)  multifariousness;  and  (3)  that  the 
court  was  without  Jurisdiction;  and  the 
AJax  Company  demurred  on  the  ground  of 
multifariousness. 

We  will  state  at  some  length  the  facts  al- 
leged In  that  bllL  The  three  plaintiffs  and 
Berkley,  all  of  whom  were  residents  of  Somer- 
set county.  Pa.,  each  contributed  ^1.67  and 


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purchased  coal  In  lands  In  tbat  county,  sub- 
ject to  a  mortgage  for  $44233^.  described 
In  a  deed  dated  October  29,  1902,  In  which 
Harvey  M.  Berkley,  trustee,  was  the  grantee. 
The  deed  was  taken  in  his  name  "for  con- 
Tenience  and  other  reasons."  He  was  a 
lawyer  of  high  standing,  In  whose  honesty 
and  Integrity  the  plaintiffs  had  every  confi- 
dence, and  he  attended  to  the  legal  details  of 
the  transaction.  The  terms  of  the  trust  are 
alleged  to  be  that  Berkley  should  dispose  of 
the  prc^wrty  for  the  benefit  of  the  four  In- 
terests and  distribute  the  proceeds  In  four 
equal  portions  to  himself  and  the  three  plain- 
tiffs; they  being  equal  owners.  During  the 
summer  of  1913,  Berkley,  as  trustee,  with 
the  consent  of  and  acting  for  the  plaintiffs, 
sold  the  property  to  the  Ajax  Consolidated 
Coal  Company,  a  corporation  of  Pennsylvania, 
whose  principal  office  was  in  tlie  dty  of 
Baltimore.  Berkley  reported  to  the  plain- 
tiffs that  the  consideration  for  the  sale  was 
$1,800  cash,  bonds  of  the  Ajax  Company  of 
the  par  value  of  $15,000,  and  a  note  of  tbat 
company  for  $3,100,  secured  by  $5,000  of 
bonds.  The  bonds  were  a  part  of  an  Issue 
of  the  AJaz  Company  for  $250,000,  secured  by 
a  deed  of  trust  or  mortgage  to  the  Mortgage 
Guarantee  Company  of  Baltimore,  as  trustee ; 
but  the  plaintiffs  charge  that,  in  addition  to 
the  cash,  the  note,  and  the  bonds  mentioned, 
Berkley  received  and  the  Ajax  Company  paid 
for  said  property  $65,000  bonds  of  that  Issue — 
that  being  the  true  consideration  received 
by  Berkley  and  paid  by  the  company.  They 
allege  that  they  did  not  know  of  the  payment 
of  the  $65,000  of  bonds  until  long  after  the 
original  bill  was  filed,  and  shortly  before  the 
amended  bill  was  filed. 

In  order  to  conceal  from  the  plaintiffs  the 
tme  consideration  received,  and  in  consum- 
mation of  the  fraud,  Berkley  conveyed  the 
property  to  the  AJaz   Company,    Mary    L. 
MacmuUen,  and  James  Connell,  as  tenants  In 
common.    Mary  L.  MacmuUen,  who  is  a  resi- 
dent of  Norfolk,  Va.,  had  no  Interest  or  part 
In  the  property,  and  paid  no  consideration  for 
It,  but  received  the  conveyance  in  payment  of 
a  preexisting  debt  due  her  or  her  father's 
estate  by  Berkley,  although  the  plaintiffs  be- 
lieve she  was  innocent  of  any  intention  to 
wrong  them.    Connell  is  a  resident  of  Penn- 
aylvania,  and  has  no  financial  or  other  re- 
apoDslbUity,  had  no  interest  In  the  property 
or  tlie  sale,  never  paid  any  consideration,  but 
WB8  used  as  a  doak  and  sham,  in  order  to 
disguise  the  real  transacticm.    The  Walker- 
Wadsworth  Company,  a  corporation  of  Mary- 
land, was  financial  agent  of  the  AJax  Com- 
pany, and  was  employed  hgr  It  to  buy  the 
property,  arrange  the  terms  of  payment,  and 
to  sell  the  bonds  of  the  AJax  Company.    Os- 
goodby  was  treasurer  and  active  manager  of 
the    Walker-Wadsworth  Company,  and  con- 
dncted    the   negotiations.      He   collaborated 
wltb  Berkley,  trustee,  in  order  to  deprive  the 
pUtinttffs  of  the  real  consideration  for  the 
property,  and  the  deed  to  Mary  h.  MacmuUen 


and  James  Connell  was  made  pursuant  to  an 
understanding  with  the  Walker-Wadswortb 
Company  and  Osgoodby,  in  order  to  divert 
from  the  plaintiffs  their  true  share  in  the 
consideration  paid  tor  the  property.  The 
true  consideration  was  as  stated,  whidi  was 
paid ;   but  the  plaintiffs  have  not  received  it. 

The  bonds  of  the  AJax  Company  not  being 
engraved  at  the  time  of  the  purchase,  tem- 
porary certificates,  called  "interim  bond  cer- 
tificates," were  issued,  which  were  to  be 
surrendered  and  bonds  delivered  when  the 
latter  were  engraved.  There  was  paid  to 
Berkley,  trustee,  the  $1,800  cash,  the  promis- 
sory note  of  $3,100,  secured  by  an  interim 
bond  certificate  for  $5,000,  and  anothM'  audi 
certificate  for  $15,000.  A  certificate  for  $22,- 
000  of  bonds  was  delivered  to  Mary  Mac- 
muUen, and  one  for  $19,000  was  ostensibly 
delivered  to  ConneU,  but  it  was  surrendered, 
and  the  bonds  represented  by  it  were  deUver- 
ed  to  the  Walker-Wadsworth  Company.  A 
certificate  for  $24,000  of  bonds  was  made  out 
in  the  name  of  the  latter  company  and  de- 
livered to  Osgoodby  as  its  r^resentatlve. 
AU  the  certificates  have  been  surrendered, 
and  the  bonds  delivered,  except  to  Bei^Iey, 
trustee.  Berkley  withheld  from  the  plain- 
tiffs all  knowledge  of  the  true  consideration, 
but  the  actual  consideration  is  approved  by 
the  plaintiffs,  and  has  been  approved  and 
ratified  by  the  Ajax  Cwnpany.  That  com- 
pany has  always  paid  the  semiannual  in- 
terest on  its  bonds,  except  those  stiU  on  de- 
posit with  the  Mortgage  Guarantee  Com- 
pany, the  interest  on  which  it  has  always  ex- 
pressed a  willingness  to  pay  when  they  are 
deUvered  to  the  true  owners.  The  bonds  rep- 
resented by  the  two  certificates  of  $5,000  and 
$15,000  are  In  the  hands  of  the  Mortgage 
Guarantee  Company ;  but  It  demands  the  de- 
livery of  the  two  certificates  before  surren- 
dering the  bonds,  to  which  plaintiffs  are  en- 
tttied. 

In  August,  1913,  Berkley  suddenly  and 
mysteriously  disappeared,  and  it  Is  not 
known  whether  he  is  living  or  dead.  After 
his  disappearance,  Aaron  F.  Heiple,  prothon- 
otary  and  clerk  of  the  common  pleas  court 
of  Somerset  county.  Pa.,  under  the  advice  of 
the  Judge  of  that  court,  took  into  his  cus- 
tody certain  papers  that  had  been  in  the 
possession  of  Berkley,  amongst  which  were 
the  interim  bond  certificates  Issued  to  Berk- 
ley and  the  promissory  note  referred  to. 
Heiple  has  filed  them  with  the  clerk  ot,  the 
lower  court,  and  he  answered  the  original 
biU.  By  the  terms  of  the  trust  the  certifi- 
cates should  be  Indorsed  by  the  trustee  and 
the  bonds  collected  from  the  Mortgage  Guar- 
antee Company  and  distributed  to  the  plain- 
tiffs; but,  owing  to  the  disappearance  of 
Berkley,  there  is  no  trustee  to  make  the  in- 
dorsement and  the  distribution.  The  $22,000 
of  bonds  deUvered  to  Mary  L,  MacmuUen 
have  been  by  her  returned  or  loaned  to  the 
AJax  Company,  and  are  now  on  deposit  wltb 


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101  ATIANTIO  REPORTER 


(Md. 


the  State  Bank  of  Maryland,  it  claiming  to 
hold  them  as  security  for  some  indebtedness 
of  the  AJax  Company;  but  the  plaintitFs 
have  no  knowledge  whether  the  bank  is  8 
bona  flde  holder,  for  value,  without  notice  of 
the  right  of  the  plalntUFs,  and  at  any  rate 
there  Is  a  substantial  equity  la  th»n.  The 
remaining  ^,000  of  bonds  were  received  by 
the  Walker- Wadsworth  Company,  or  Osgood- 
by  acting  for  it,  and  neither  Is  a  bona  fide 
holder  for  value,  nor  has  either  paid  any 
consideration  therefor,  but  they  were  receiv- 
ed as  part  of  a  preconceived  plan  to  defraud 
the  plaintiffs,  and  they  should  be  delivered  to 
the  trustee  to  be  appointed  in  the  place  of 
Berkley  for  distribntion  In  accordance  with 
the  terms  of  the  trust 

The  amended  bill  prays:  d)  That  a  new 
trustee  be  appointed  in  place  of  Berkley, 
with  power  to  execute  the  trust  reposed  in 
him;  (2)  that  said  trustee  be  authorized  to 
receive  the  interim  bond  certificates  and  the 
promissory  note  outstanding  in  the  name  of 
Berkley,  trustee,  and  d^wslted  with  the 
clerk  of  the  lower  court,  to  make  such  In- 
dorsements and  execute  such  instruments  and 
writings  as  may  be  necessary,  upon  surren- 
der of  the  certificates,  to  secure  the  bonds 
repreaeatei  by  them,  and  that  the  Mort- 
gage Guarantee  Company  be  ordered  to  de- 
liver the  said  bonds  to  the  trustee;  (3)  that 
the  trustee  be  directed  to  collect  and  recover 
the  bonds  wrongfully  delivered  to  Mary  Ix 
Macmullen  and  now  deposited  with  the  State 
Bank  of  Maryland,  and  that  she  and  the 
bank  be  ordered  to  deliver  them  to  said  trus- 
tee free  and  clear  of  any  claims  by  them;  (4) 
that  the  Walker-W^idsworth  Company,  and 
Osgoodby  for  said  company,  be  ordered  and 
directed  to  deliver  the  $43,000  of  bonds  re- 
ceived and  held  by  said  company,  or  said  Os- 
goodby, to  said  trustee,  free  and  clear  of  any 
claims  of  either  of  them ;  (5)  that  said  trus- 
tee be  ordered  to  hold  all  of  said  bonds  and 
said  note  until  the  court  determines  who  are 
entitled  to  them,  and  upon  said  determina- 
tion that  the  trustee  deliver  them  to  such 
person  or  persons  as  the  court  may  direct; 
(6)  that  in  the  meantime  an  injunction  issue 
enjoining  the  State  Bank  of  Maryland  from 
disposing  of,  transferring,  or  making  deliv- 
ery to  any  one,  except  the  trustee,  of  the 
bonds  described  in  the  amended  bill,  and  that 
a  similar  Injunction  be  Issued  against  the 
Walker-Wadsworth  Company  and  Alfred  B. 
Osgoodby,  as  to  the  bonds  in  their  possession 
or  control;  and  (7)  for  general  relief. 

We  will  consider  the  objections  to  the  bill 
in  the  order  stated  in  the  brief  of  the  ap- 
pellees: 

[1]  1.  Alleged  Irregularity  of  the  Proceed 
i»\4j».  On  January  22,  1017,  the  demurrers 
to  an  amended  bill  were  sustained,  with 
leave  to  file  another  amended  bill.  The  next 
day  the  court  granted  the  plaintiffs  leave  to 
amend  that  bill  by  interlineation.  On  Janu- 
ary 26th  an  agreement  of  aoUdtorB  was  en- 


tered into  that  the  deraurrera  theretofore  filed 
be  considered  as  refiled  to  the  bill  as  amend- 
ed, per  order  of  January  23,  1017,  and  the 
same  day  a  motion  for  hearing  was  filed. 
The  appellees  contend  that  there  was  no  or- 
der of  publication  against  Berkley  on  the 
bill  as  amended  by  interlineation,  and  that, 
as  he  was  a  necessary  party,  the  demurrers 
were  properly  sustained.  As  the  demurrers 
were  by  the  agreement  reflled  on  January 
25th,  it  would  be  a  most  novel  application 
of  equitable  procedure  if  the  defendants,  who 
had  been  summoned  and  were  represented 
in  court  by  solicitors,  could  thus  object  to  an 
amended  bill  because  a  nonresident  was  not 
then  in  court  under  an  order  of  publication. 
The  decree  appealed  from  was  filed  on  Febru- 
ary 13th,  long  before  an  order  of  publication 
could  have  expired.  If  the  amendment  was 
such  as  to  require  a  new  order  of  publica- 
tion, which  we  need  not,  if  we  could,  deter- 
mine, as  the  record  does  not  show  what  it 
was,  those  who  were  still  in  coart,  and  es- 
pecially those  who  by  their  solicitors  enter- 
ed into  the  agreement  referred  to,  had  no 
standing  to  object  to  the  bill  for  such  rea- 
son; their  demurrers  being  filed  two  days 
after  the  interlineation. 

[2]  8.  Multifariouanesi.    As  Alfred  B.  Os- 
goodby and  the  Walker-Wadsworth  Company 
are  charged  with  fraudulent  conduct  in  con- 
necti(m  with  the  transaction,  which  resulted 
in  what  the  plaintiffs  complain  of,  they  were 
properly    Joined    with    Berkley.      It    might 
work  great  injustice  to  them  if  they  were 
not  made  parties,  as  not  only  the  bonds,  but 
their   reputations,   were   Involved.     If  they 
were  guilty  of  fraud  at  all,  under  the  bill 
they  were  as  guilty  as  Berkley.    Duckett  v. 
Bank,  86  Md.  400,  38  AU.  983.  39  L.  R.  A. 
84,  63  Am.  St  Rep.  513;    Id..  88  Md.  8,  41 
Atl.  161,  1062;    Safe  Deposit  Co.  t.  Cahn. 
102  Md.  530,  62  AtL  819.    If  they  were  not 
guilty,  they  ought  to  demand,  rath«ir  than 
avoid,  an  investigation.    The  AJax  Company 
was  also  clearly  a  proper  party.    Just  how 
the  plaintiffs  were  deceived  by  the  deed  be- 
ing made  to  that  company  and  Mary  L.  Mac- 
mullen and  Jam^   Connell,  as  tenants   in 
common,  is  not  clear;    but  as  the  bill  al- 
leges the  sale  was  to  the  AJax  Company, 
and  the  deed  was  made  to  the  three,  that, 
taken  in  connection  with  other  allegations 
in  the)  bill,  as  to  the  receipt  of  bonds  and  the 
subsequent  disposition  of  them  by  Mary  I* 
Macmullen  and  James  C<»ineU,  shows  th^- 
are  ulso  proper  parties.    The  Mortgage  Guar- 
antee Company  is  the  trustee  in  the  doed  of 
trust  given  to  secure  the  bonds.    It  is  not 
objecting  to  being  made  a  party,  and  could 
not  well  make  a  valid  objection.    On  the  con- 
trary, it  might  well  have  asked  to  be  made 
a  party,  if  it  had  not  been.    Nor  is  Aaron  F. 
Helple  objecting.    He  is  merely  Interested  In 
seeing  that  the  papers  he  found  are  properrly 
disposed  of.    Nor  do  we  see  any  valid  ob- 
jection by  the  State  Bank  of  Maryland  on 


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tbls  ground.  It  Is  true  It  is  only  Interested 
In  the  $22,000  of  bonds,  so  far  as  tbe!  bill 
discloses;  but  they  were  received  from  a 
party  who  had  no  right  to  th«n,  and  whose 
name  at  least  was  connected  with  the  sale 
made  by  the  alleged  fraudulent  trustee,  and 
if  the  plaintiffs  sustain  their  main  contention 
— that  they  are  interested  in  all  of  the  $80,- 
000  of  bonds— then,  if  there  is  any  equity  in 
tboee  bonds  held  by  the  bank,  it  is  direictly 
Interested  In  knowing  who  the  real  owners 
are.  Of  course,  if  It  is  contended  in  the  pro- 
ceedings, as  the  bill  indicates  may  be  done, 
that  it  is  not  a  bona  flde  holder,  but  bad 
notice  of  the  alleged  Interest  of  the  plaintiffs. 
It  will  be  directly  interested  in  the*  whole 
matter,  to  the  extent  of  the  bonds  held  by  it; 
for,  if  the  plaintiffs  have  no  Interest  in  the 
bonds,  then  there!  will  be  no  question  as  to 
whether  the  bank  is  a  holder  for  value,  with- 
out notice  of  any  defect  in  the  title,  but,  if 
thiey  have  audi  interest,  there  may  be  the 
further  question— at  least  to  be  contested — 
as  to  whether  the  bank  is  a  bona  flde  bolder 
for  value.  If  there  was  a  separate  proceed- 
ing for  tho  $22,000  of  bonds,  the  costs  nec- 
essary to  be  incurred  in  undertaking  to  estab- 
lish the  right  of  the  plaintiffs  to  the  bonds 
would  be  as  great  as  they  could  be  In  this 
case. 

[3, 4]  The  objection  to  a  bill  <m  the  ground 
of  multifariousness  "ought  only  to  apply 
where  the  case  of  each  defendant  is  entirely 
distinct  from  that  of  th«  other  defendants; 
and  it  is  not  indlspoisable  that  all  the  par- 
ties should  have  an  interest  In  all  the  mat- 
ters contained  in  the  bill.  It  will  be  suffi- 
cient if  each  party  have  an  interest  in  some 
mateirlal  matters  in  the  suit  and  that  they 
are  connected  with  others."  Miller's  Bq. 
Proc.  139,  i  110;  Phelps,  Jurld.  Eq.  |  42. 
"This  objection  is  more  frequently  overruled 
than  sustained."  Phelps,  Jurld.  Eq.  (  43. 
Or,  as  said  in  note  3  to  section  105  of  Mil- 
ler's Eq.  Proc.,  it  "is  much  more  oftefn  taken 
than  sustained."  For  cases  Illustrating  the 
application  of  the  doctrine,  see  Trego  v.  Skin- 
ner, 42  Md.  428;  Neal  v.  RatheU,  70  Md.  592, 
17  AtL  568;  Regester  v.  Regester,  104  Md. 
S59,  65  Atl.  12;  Murphy  v.  Penniman,  105 
Md.  462,  66  Atl.  282,  121  Am.  St.  Bep.  583; 
Ruhe  v.  Ruhe,  113  Md.  595,  77  Atl.  707 ;  Roth 
T.  Stuerken,  124  Md.  404,  92  Atl.  808.  If  the 
bill  bad  been  held  to  be  multifarious,  the 
plaintiffs  might  have  befen  put  to  their  elec- 
tion; but  the  bill  woold  not  have  been  dis- 
missed in  toto.  Miller's  Eq.  Proc.  114.  The 
court  can  amply  protect  all  parties  by  sudi 
decree  or  decrees  as  it  may  pass  as  to  costs 
in  other  matters.  What  was  said  by  Judge! 
Miller  in  Neal  v.  Rathell,  supra,  is  sufficient 
as  to  the  suggestion  that  two  decrees  may  be 
necessary,  to  avoid  a  further  discussion  of 
that 

[5]  3.  The  Alleged  Contradictory  and  In^ 
contittent  AUoffatUnu.  We  confess  our  in- 
ability to  find  such.    While  the  bill  refers  to 


the  subject  several  times,  it  is  distinctly  and 
unequivocally  alleged  throughout  that  Berk- 
ley reported  to  the  plaintiffs  that  he  had  sold 
the  property  for  $1,800  cash,  a  promissory 
note  for  $3,100  (secured  by  bonds  of  $5,000 
par  value),  and  bonds  of  $15,000  par  value, 
while  he  in  reality  sold  It  for  the  cash  and 
note  mentioned  and  $80,000  in  bonds.  The 
statement  that  the  plaintiffs  ratify  and  ap- 
prove the  sale,  and  that  the  stockholders  and 
directors  of  the  AJax  Company  did  also,  Is  in 
no  wise  contradictory  or  Inconsistent.  If 
they  did  not  ai^rove  or  ratil^  the  sale  made 
by  the  alleged  fraudulent  trustee,  they  cer- 
tainly would  not  be  entltleid  to  recover  bonds 
which  were  given  in  part  pajrment  theirefor. 
Their  suit  to  recover  the  bonds,  etc.,  given 
for  the  purchase!,  would  probably  be  all  of 
the  ratification  necessary,  but  the  aIlegatl<Mi 
can  do  no  harm.  The  object  in  saying  that 
the  AJaz  Company  approved  and  the  stock- 
holders and  directors  ratified  it  was  simply 
to  show  that  the  company  was  not  seieklng 
to  avoid  the  sale  by  reason  of  Berkley's 
fraud.  If  that  had  injured  the  company,  and 
it  was  not  aware  of  the  fraud  at  the  time, 
or  did  not  afterwards  ratify  his  action,  pos- 
sibly it  could  have  decline!d  to  carry  out  the 
sale.  The  plaintiffs  did  not  ratify  the  fraud 
of  Berkley,  or  claim  in  the  bUl  that  he  did 
not  sell  with  their  consent;  but  they  com- 
plain of  his  fraud  In  not  truly  represefntlng 
to  them  the  terms  of  sale,  and  giving  himself 
and  others  the  benefit  of  part  of  the  purchase 
price  to  which  they  we!re  entitled. 

[1, 7]  4.  There  can  be  no  possible  question 
about  the  Jurisdiction  of  a  court  of  equity. 
The  plaintiffs  are  undertaking  to  establlsb 
that  a  trust  existed  in  their  favor,  and  the 
deed  itself  shows  that  Berkley  held  the 
property  as  trustee.  Even  If  a  court  of  law 
would  have  had  Jurisdiction  in  some  matters, 
a  court  of  equity,  to  say  the  least,  certainly 
has  concurrent  Jurisdiction  in  cases  of 
fraud,  and  special  Jurisdiction  in  cases  of 
trust  A  court  of  law  could  not  appoint  a 
new  trustee,  or  give  the  plaintiffs  all  the 
relief  they  are  entitled  to.  If  the  facts  were 
as  they  allega  The  Mortgage  Guarantee 
Oompany,  which  holds  the  $15,000  of  bonds, 
to  be  delivered  on  the  surrender  of  the  in- 
terim bond  certificate,  and  the  $5,000  of 
bonds  as  security  for  the  note,  is  a  Mary- 
land corporation.  The  $22,000  of  bonds  de- 
livered to  Mary  Li  Macmullen  are  held  by 
the  State  Bank  of  Maryland,  and  the  $19,000 
delivered  to  Connell  were  turned  over  to  tlie 
Walker-Wadsworth  Company,  as  were  the 
other  $43,000  of  bonds,  and  it  and  the  bank 
are  Maryland  corporations.  The  proceeding 
does  not  involve  the  title  to  real  estate  in 
Pennsylvania,  but  bonds  which  are  In  Mary- 
land, although  secured  on  sudi  real  estate, 
and  the  AJax  Company,  although  a  Pennsyl- 
vania corporation,  has  its  principal  office  in 
Baltimore.  There  could  be  no  possible  doubt 
about  the  right  to  proceed  by  publication 


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101  ATLANTIC  REPORTER 


(Md. 


against  Berkley,  trustee,  as  It  is  a  proceed- 
ing in  rem  and  not  In  personam.  Many  au- 
thorities miglit  1)6  cited  to  sustain  the  juris- 
diction of  a  court  of  equity  in  such  a  case  as 
tliis,  but  it  seems  to  us  tliat  it  is  only  nec- 
essary to  recall  the  facts  alleged  and  the  fa- 
miliar principles  of  equity  procedure  and  the 
grounds  for  relief,  as  thoroughly  established 
in  this  state. 

[S]  5.  Statute  of  Fraud*.  As  to  the  ob- 
jection that  the  statute  of  frauds  precludes 
the  plaintiffs  from  recovery,  one  of  the  cases 
cited  by  the  appellees  as  to  multifariousness 
might  be  cited  aa  an  answer  to  that  con- 
tention. Ruhe  T.  Ruhe,  supra.  But  there 
are  sereral  complete  answers  to  the  objection 
as  now  raised.  Section  7  of  St  Car..  II,  c. 
3  (statute  of  frauds),  does  not  provide  that 
the  trust  shall  be  constituted  by  writing,  but 
"all  declarations  or  creations  of  trusts  and 
confidence,  of  any  lands,  tenements  or 
hereditaments  shall  be  manifested  and  prov- 
ed by  some  writing,"  etc.  See  Maccubbiu  v. 
CromweU,  7  Gill  &  J.  157;  Gtordon  v.  Mc- 
Culloh,  66  Md.  245,  7  Atl.  457.  "It  there- 
fore follows  that  a  Mil  need  not  charge  the 
trust  to  be  in  writing ;  at  least  it  is  not  de- 
murrable on  that  account,  for  the  writing 
is  no  part  of  the  trust,  but  only  the  evidence 
to  prove  it  at  the  hearing.  Davies  v.  Otty, 
33  Beav.  540,  afiSrmed  on  appeal  Id.,  note; 
Forster  v.  Hale,  supra."  3  Ves.  Jr.,  696; 
8.  c.,  6  Ves.  Jr.  308;  2  Alex.  Br.  StaL  (Coe's 
Ed.)  743.  In  this  bill  the  allegations  are 
ample. 

[9, 10]  But  section  8,  St  29  Car.  II,  takes 
resulting  trusts  out  of  the  statute,  and  such 
trusts  are  not  required  to  be  in  writing. 
Without  deeming  it  necessary  to  cite  many 
of  the  numerous  cases  on  that  subject,  we 
will  content  ourselves  by  referring  to  the 
excellent  volume  last  referred  to,  on  pages 
744-746,  and  to  Dixon  v.  Dixon,  123  Md.  44, 
90  Atl.  846,  Ann.  Gas.  1916D,  616,  one  of  the 
last  expressions  of  this  court  on  the  subject 
Of  course,  all  such  trusts  must  be  clearly 
proven,  to  justify  the  court  in  granting  re- 
Uef. 

[11-13]  6.  Deed  Not  Filed.  The  objection 
that  a  copy  of  the  deed  from  Berkley  was 
not  filed  was  sufficient  to  prevent  an  in- 
junction being  issued,  and  we  tliink  it  should 
have  been  filed  in  order  to  justify  relief  oth- 
er than  the  injunction  prayed  for.  In  Chap- 
peU  T.  Clark,  92  Md.  98,  48  AtL  36,  it  was 
held  error  to  pass  an  order  requiring  a  bond 
to  be  given  by  the  trustee,  as  well  as  grant- 
ing an  injunction  before  an  exhibit  was  filed, 
being  contrary  to  what  Is  now  section  142, 
art  Id.  The  court  was  entitled  to  have  the 
deed  before  it,  as  there  may  be  something 
in  it  which  it  would  think  reflected  upon 
some  of  the  questions  involved.  We  have  no 
means  of  knowing  whether  the  lower  court 
sustained  the  demurrer  on  that  ground  alone, 
although  it  is  not  probable   that  it  would 


have  dismissed  the  bill  simply  for  that  rea- 
son, aud  as  that  is  the  only  defect  we  find 
in  the  bill  which  made  it  demurrable,  we  will 
remand  the  cause  without  affirming  or  re- 
versing the  decree.  A  copy  of  the  deed  can 
then  be  filed,  and  further  proceedings  taken. 
We  will  follow  the  practice  established  by 
this  court  when  this  course  is  pursued,  Iv 
letting  the  costs  abide  the  result  of  the  case. 

7.  What  we  have  said  above  is  sufficient 
as  to  Berkley  not  now  being  l>efore  the  court 
Defendants  cannot  oust  plaintiffs  by  appear- 
ing and  demurring  before  an  order  of  publi- 
cation can  be  published  against  a  necessary 
nonresident  party. 

8.  It  is  said  the  appellants  do  not  come 
into  court  with  clean  hands;  but  there  is 
notliing  to  show  the  application  of  that  max- 
im excepting  statements  outside  of  the 
record. 

[U]  9.  IAmitation«  and  Lache*.  Nor  do 
we  think  that  the  appellants'  claim  is  barred 
by  limitations  or  ladies.  'Fbe  original  bill 
was  filed  December  17,  1916,  and  in  the 
amended  bill  it  Is  distinctly  alleged  that  the 
plaintiffs  were  not  aware  of  the  real  trans- 
action until  long  after  the  original  hill  was 
filed,  and  shortly  before  the  amended  bill 
was  filed,  which  was  October  17,  1916.  As 
will  be  seen,  the  original  bill  was  filed  in  less 
than  tliree  years  after  the  sale,  and  after 
Berkley  disappeared.  The  piaintUFs  conlS 
not  be  expected  to  proceed  at  once,  as  it 
probably  took  a  considerable  time  to  ascer- 
tain the  necessary  facts — what  BerWey  had 
done  with  the  papers,  whether  he  could  be 
located,  etc. 

Cause  remanded,  without  affirming  or  re- 
versing the  decree;  the  costs,  above  and 
below,  to  abide  the  final  result 


(UO  Hd.  EST) 

HAMIUrON  CORP.  v.  JULIAN  et  aL 
(No.  &) 

(Court  of  Appeals  of  Maryland.    June  26, 1917.) 

1.  Nuisance    4s»19— Tbskatbned    Nuisanob 
—Injunction. 

An  injunction  will  be  granted  to  restrain 
acts  which,  when  completed,  wUl  constitute  a 
nuisance. 

[EM.  Note.— For  other  cases,  see  Nuisance, 
Cent  Dig.  f  56.] 

2.  Nuisance  «=»3(9)— Pbivais  INuuurcb" — 
What  Constitutes. 

Bowling  alleys  and  moving  i)icture  theaters 
may  become  "nuisances"  in  certain  places,  whoi 
they  create  a  disturbance  to  the  serions  annoy- 
ance and  physical  discomfort  of  persons  of  or£- 
nary   senBibUities  living  in  the  neighborhood. 

[Ed.  Note. — For  other  cases,  see  Nuisance, 
Cent  Dig.  |§  20-22. 

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

3.  Nuisance   €=s>32— Thbkatkned    Nuisance 
— pukauinq. 

Bill  alleging  that  defendant  is  erecting  a 
building  which  can  be  used  only  as  a  bowling 
alley  and  a  moving  picture  theater,  in  an  ex- 
clusive  residence   neighborhood,   and   such    use 


4=3For  otber  ca»ei  we  «am«  topic  and  KBT-NUUBBR  In  all  Key-Numbered  Dlgeets  and  Indezee 


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HAMILTON  CORP.  >.  JOLIAIf 


569 


will  render  plaintiffa'  property  untenable  as  a 
home  for  themselves  and  aa  a  boarding  house,  is 
sufficient  to  entitle  plaintiffs  to  an  injunction 
against  such  use  of  the  property. 

[Ed.  Note. — For  other  cases,  see  Nuisance, 
Cent  Dig.  $§  77-83.] 

Appeal  from  Clrcnlt  Court  Baltimore 
County,  in  Eqtiity ;  Frank  I.  Duncan,  Judge. 

"To  be  offlrfally  reported." 

Bill  by  Ella  8.  M.  Julian  and  others 
against  the  Hamilton  Corporation.  From 
an  order  overruling  defendant's  demurrer, 
it  appeals.    Affirmed. 

Argued  before  BOYD,  O.  J.,  and  BRISOOB, 
THOMAS,  URNER,  and  STOCKBRIDGE, 
JJ. 

John  B.  Gontrum,  of  Baltimore  (Henry  B. 
Mann  and  John  S.  Biddison,  both  of  Balti- 
more, on  the  brief),  for  appellant  C.  M. 
Armstrong,  of  Baltimore  (J.  Elmer  Welshelt, 
of  Baltimore,  on  the  brief),  for  appellees. 

BRISCOE,  J.  This  is  a  bill  In  equity 
brought  by  the  plaintiffs  against  the  defend- 
ant, in  the  circuit  court  for  Baltimore  coun- 
ty, for  an  Injunrtion  to  enjoin  and  restrain 
the  defendant  from  erecting,  maintaining, 
and  conducting  a  bowling  alley  and  a  mov- 
ing picture  theater  building  upon  its  lot  In 
the  village  of  Hamilton,  In  Baltimore  coun- 
ty. Hie  defendant  is  a  corporation  duly 
Incorporated  under  the  laws  of  the  state 
of  Marj'land,  and  its  incorporators  reside 
and  own  a  lot  in  the  village  of  Hamilton, 
adjoining  the  plaintiffs'  property.  The  plain- 
tiffs are  also  residents  of  Hamilton,  and  own 
a  lot  therein,  improved  by  a  dwelling  hoUse, 
which  they  occupy  as  a  home,  and  where 
they  also  conduct  a  boarding  bouse  as  a 
means  of  livelihood.  The  lot  is  described  as 
situate  on  the  soulthwesterly  side  of  Hamilton 
avenue,  having  a  frontage  on  this  avenue 
of  about  50  feet,  and  extending  thence  south- 
westerly, with  an  even  width  of  50  feet 
about  214.2  feet,  and  designated  as  lot  No.  8 
on  the  plat  of  the  land  of  the  LauravlUe  Hall 
&  Land  Company  of  Baltimore  County. 

The  bill  alleges  that  the  village  of  Ham- 
ilton   is    exclusively    a    residential    suburb 
of  Baltimore  City,  and  that  the  section  of 
the  plaintiffs'  residence  is  exclusively  a  resi- 
dential neighborhood,  except  several  places 
of  business  necessary  and  suitable  for  the 
accommodation  of  the  residenits  of  the  com- 
mnnlty,  and  that  these  by  their  ordinary  and 
proper  use  arc  not  calculated  to  interfere 
witli  or  Impair  the  reasonable  use  and  enjoy- 
ment of  property  in  the  neighborhood  by  the 
owners  and  occupants  thereof.    The  bill  then 
avers  that  the  defendant  corporation  is  erect- 
ing   and   constructing  on  its  lot  adjoining 
the  plaintiffs'  property  a  bulldihg  in  which 
they  are  going  to  conduct  public  bowling  al- 
leys for  profit,  that  the  building  is  of  large 
dimensions,  over  100  feet  in  length  by  50  feet 
In  -width,  and  Is  within  25  feet  of  plaintiffs' 
dwelling  house,  that  this  Imiiding  is  not  sus- 
ceptible of  any  other  use,  and  that  this  use 


will  Impair  the  reasonable  enjoyment  of 
the  plaintiffs'  property  as  a  residence  and  a 
boarding  house,  l^e  bill  farther  diarges 
that  the  defendant  is  also  about  to  erect  and 
construct  (m  its  loC  another  building  where 
they  wUl  conduct  a  moving  picture  theater, 
and  this  building  will  be  within  21  feet  of 
plaintiffs'  dwelling,  and  that  the  uses  to  be 
made  of  both  buildings,  with  the  noises  in- 
cident to  such  places,  will  work  a  special 
injury  to  the  plaintiffs  and  their  property; 
thajt  both  the  bowling  alleys  and  theater,  to 
be  located  and  operated  In  the  manner  and 
way  as  proposed,  will  deprive  them  of  the 
reasonable  use  and  enjoyment  of  their  prop- 
erty rights,  render  it  untenable  as  a  home 
for  themselves,  and  destroy  iits  use  and  bene- 
fit as  a  means  of  support  for  them,  and  make 
it  undesirable  and  unavailable  as  a  place  of 
residence  for  their  boarders  and  lodgers,  and 
greaUy  impair  its  value. 

The  prayer  of  the  bill  is  for  an  In- 
junction restraining  and  enjoining  the  de- 
fendant, the  Hamilton  corporation,  (1) 
from  establishing,  maintaining,  or  con- 
ducting a  bowling  alley,  or  bowling  al- 
leys, upon  the  lot  In  the  village  of  Hamilton, 
in  the  Fourteenth  election  district  of  Balti- 
more county,  designated  as  lot  No.  9  on  said 
plat  of  the  Lauraville  Hall  &  Land  Company 
of  Baltimore  County ;  (2>  that.the  defendant 
be  enjoined  from  esltablishing,  maintaining, 
or  conducting,  or  causing  to  be  established, 
maintained,  or  conducted,  upon  the  lot,  a 
moving  picture  theater ;  (3)  that  the  defend- 
ant be  commanded  and  required  to  remove 
immediately  the  bowling  alley  building  now 
being  erected  by  them  upon  the  lot,  and  en- 
joined from  erecting  hereafter  a  bowling  al- 
ley building  thereon ;  (4)  that  the  defendant 
be  enjoined  from  eredting  or  constructing 
on  the  lot  a  moving  picture  theater  building ; 
(5)  and  for  other  and  further  relief  aa  their 
case  may  require. 

Subsequentiy  the  case  was  heard  upmi  the 
bill  and  a  demurrer  thereto,  and  from  an 
order  of  court,  passed  on  the  18th  day  of 
December,  191C,  overruling  the  demurrer 
to  the  bill,  with  leave  to  answer,  this  appeal 
has  been  taken. 

The  cause  and  grounds  of  the  demurrer  are 
Stated  to  be:  (1)  That  the  plaintiffs  have 
not  stated  in  their  bill  such  a  case  as  entitles 
them  to  any  relief  in  equtty  against  this  de- 
fendant (2)  That  the  allegations  of  the  bill 
are  too  general,  vague,  uncertain,  indefinite, 
argumentative,  and  Infereotial  to  require  this 
defendant  to  answer  the  same,  or  to  entitle 
the  plaintiffs  to  any  relief  in  the  premises. 

[1]  The  object  of  the  bill,  it  will  be  seen 
from  Its  recitals,  is  in  substance  to  enjoin 
and  restrain  a  prospective,  probable,  or 
threatening  nuisance,  and  the  single  question 
here  involved  is  whether  Its  averments  of 
fact,  as  admitted  by  the  demurrer  to  be  true, 
are  sufi&dent  to  entiUe  the  plaintiffs  to  the 
relief  sought  by  the  bllL    The  rules  of  law. 


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(Ud. 


ciontrolUiig  the  rights  of  parties  under  slm- 
Uar  facts  and  drcomstances,  alleged  by  the 
bill  In  this  case,  have  been  settled  by  numer- 
ous decisions  of  this  court.  In  Adams  ▼. 
Michael,  38  Md.  123,  17  Am.  Rep.  616,  it  Is 
said: 

'"Dio  general  rule  is  that  an  injunction  will 
only  be  granted  to  restrain  an  actual  existing 
nuisance ;  bat  where  It  can  be  plainly  seen  that 
acts  which,  when  completed,  will  certainly  con- 
stitute or  result  in  a  grievous  nuisance,  or 
where  a  party  threatens  or  be^ns  to  do,  or  in- 
sists upon  bis  right  to  do,  certain  acts,  the  court 
will  interfere  though  no  nuisance  may  have  been 
actually  committed,  if  the  circumstances  of  the 
case  enable  the  court  to  form  an  opinion  as  to 
the  illegality  of  the  acts  complained  of  and  that 
irreparable  injury  will  ensua" 

See  Dlttman  ▼.  Bepp,  BO  Md.  516,  33  Am. 
B^.  325;  Gbappell  t.  Funk,  57  Md.  465; 
FertUlzer  Co.  t.  Spangler,  86  Md.  562,  39 
AtL  270;  Hendrlcksou  v.  Standard  Oil  Co., 
126  Md.  578,  06  Atl.  163;  Singer  ▼.  James, 
ISO  Md.  882,  100  AU.  642. 

[2]  While  It  Is  tme  that  bowling  alleys  and 
moving  picture  theaters-,  kept  and  conducted 
for  profit,  are  not  nuisances  per  se,  yet  they 
may  be  and  may  become  so  In  certain  places, 
when  they  create  a  disturbance  to  the  serious 
annoyance  and  idiysical  discomfort  to  persons 
of  ordinary  sensibilities  living  in  the  neigh- 
borhood. 29  Qya  U64,  1168,  1183;  Harri- 
Boa  V.  People,  101  111.  App.  224;  Cleveland 
T.  Citizens'  Oas  Co.,  20  N.  J.  Eq.  201;  Tuttle 
T.  Oburch  (O.  Q)  53  Fed.  426;  Appeal  of 
Ladles'  Decorative  Art  Club  (Pa.)  13  Atl.  639. 
In  imey  r.  A'Heam  (Ey.)  18  a  W.  630,  the 


court  held  that  In  similar  cases  a  party  is 
not  required  to  wait  until  the  injury  is  in- 
flicted. The  object  of  the  writ  is  preventive 
and  It  wards  off  the  injury.  The  case  must 
be  a  clear  one;  but  If  the  danger  be  probable 
and  threatening,  and  likely  to  ensue,  the  aid 
of  the  court  may  be  invoked.  Broder  v. 
SalUard,  2  Cb.  Div.  602;  Ball  v.  Bay,  8  Ch. 
App.  471;  Crump  v.  Lambert,  L.  B.  3  Eq. 
Cas.  409;  Smelting  Co.  v.  Tipping,  11  H.  L. 
Cases,  642. 

[S]  In  the  present  case,  the  averments  of 
the  bill  are  sufficient,  if  they  can  be  siustained 
by  the  proper  proof,  to  warrant  the  granting 
of  the  relief  sought  by  the  bill.  The  real 
question  In  all  such  cases,  as  stated  by  the 
authoritiKS,  Is  whether  the  nuisance  complain- 
ed of  will  or  does  produce  such  a  condition  of 
things  as  in  the  Judgment  of  reasonable  men 
is  naturally  productive  of  actual  physical 
discomfort  to  persons  of  ordinary  sensibil- 
ities and  of  ordinary  tastes  and  habits,  and 
as,  in  view  of  the  circumstances  of  the  case, 
is  unreasonable  and  In  derogation  of  the 
rights  of  the  party.  A  proq>ectlve  or  threat- 
ening nuisance  is  subject  to  the  same  test 
and  against  which  a  party  would  have  a 
dear  right  to  prevraitlve  relief  In  equity. 

In  view  of  the  averments  of  the  hill  in  this 
case,  and  in  the  absence  of  answer  and  proof, 
we  must  hold  upon  the  authorities  that  the 
court  below  was  entlrrfy  right  in  overruling 
the  demurrer,  and  in  requiring  the  defendant 
to  answer  the  plaintiffs*  MIL 

Order  afflrmed;  tbe  appdlant  to  paj  Um 


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WHITAKER  V.  MAYOR,  ETC.,  OP  DUMONT  BOROUOH 


661 


(90  N.  J.  Law,  383) 

WHITAKER  et  «1.  v.  MAYOR  AND  COUN- 
CIL OF  DUMONT  BOROUOH. 
(Supreme  Coart  of  New  Jersey.    Aug.  11, 1917.) 

1.  MUNICIFAI.  CORPOKATIONS  *=>456(4)— PCB- 
LIO   IMPBOVSMENTS— SFBOIAL  ASSKSSMENTS— 

Validitt. 
Borough  Act  (1  Comp.  St  1910,  p.  244)  I 
83,  par.  1,  provides  for  laying  out  and  opening 
np  streets;  and  paragraph  2  authorizes  a  single 
ordinance  for  making  several  improvements  in 
a  street  already  laid  out.  Held,  that  an  assess- 
ment attempting  a  single  levy  lor  laying  out  a 
new  street  and  for  grading  and  for  construction 
of  sidewalks  is  invalid. 

2.  Mdnicipai.  Cobfokatiors  *=>45e(4)— Pttb- 
uo  IicPBOVKKKNTS— Special  Assebsiointb— 
Vauditt. 

Since  the  cost  of  sidewalks  must  be  paid  by 
the  owners  of  the  lands  in  front  of  which  they 
are  constructed,  an  assessment  for  laying  out 
and  opening  a  street,  for  grading,  and  including 
an  amount  for  sidewalk  construction,  is  invalid. 

Certiorari  by  Benjamin  J.  Whltaker  and 
otbers  against  the  Mayor  and  Council  of  the 
Borough  of  Damont,  to  set  aside  assessments 
for  special  benefits.    Assessments  set  aside. 

Argued  February  term,  1917,  before  SWAY- 
ZE,  iSJNTUBN,  and  KALISCH,  JJ. 

William  M.  Senfert,  ot  Englewood,  for  pros- 
ecutor. Frank  G.  Turner,  of  Jersey  City,  for 
respondent. 

SWAYZB,  J.  Although  the  writ  removes 
only  the  assessment,  tbe  prosecutor  Improper- 
ly assigns  reasons  for  getting  aside  the  or- 
dinances nnder  which  the  Improvements  were 
made.  The  Justice  who  allowed  the  writ 
acted  advisedly  in  limiting  its  scope.  The 
prosecutor  had  allowed  the  time  for  ques- 
tioning the  ordinances  to  pass  by,  and  he 
could  only  question  the  assessment.  Ttda 
consideration  disposes  of  most  of  the  reasons 
assigned. 

[1]  In  order  to  determine  the  question  of 
the  validity  of  the  assessment,  we  have  had 
to  pick  out  from  the  voltunlnouB  and  some- 
'wbat  confused  record  the  essential  facts. 
Three  ordinances  were  approved  April  11, 
1911.  One  established  the  grade  of  part  of 
Madison  avenue.  One  provided  that  the  av- 
enue be  widened  to  60  feet  where  It  was  then 
less,  that  it  be  graded  and  improved  accord- 
ing to  the  grade  to  be  established  therefor, 
that  the  improvements  be  done  according  to 
emch  plans  and  specifications  as  the  mayor  and 
council  might  adopt  therefor,  and  that  the 
cost  be  assessed  upon  the  property  benefited 
thereby.  The  third  provided  for  the  construc- 
tion of  cement  sidewalks.  Subsequently  the 
txirough  authorities  called  for  bids  "covering 
tbe  grading  work  and  construction  of  cement 
sidewalks."  Separate  bids  were  received 
and  separate  contracts  were  awarded  (1)  for 
tbe  sidewalks;  (2)  for  tbe  grading  and  ma- 
cadamizing. Subsequently  some  additional 
grading,  macadamizing,  and  improving  was 
done.  On  March  16,  1915,  the  cost  and  ex- 
p^ues  were  ascertained  to  be  $11,368.49,  of 


which  $7,869.76  was  for  roadway  oonstruo 
tion  and  $3,827.84  was  for  "sidewalk  grad- 
ing." Of  the  total,  aU  but  $670.24  was  as- 
sessed on  property  owners  as  special  benefits. 
The  return  of  the  commissioners  shows  that 
their  assessment  was  for  laying  out,  opening, 
and  improvement  of  Madison  avenue.  Ob- 
viously this  is  not  an  assessment  of  the  cost 
of  grading  and  paving  and  laying  sidewalks. 
Section  3  of  the  Borough  Act  discriminates 
between  laying  out  and  opening,  which  are 
provided  for  in  paragraph  I,  and  grading 
and  paving,  which  are  provided  for  in  para- 
graph II.  Paragraph  II  authorizes  a  ^ngle 
ordinance  for  tbe  making  of  more  than  onn 
of  the  improvements  therein  specified,  all  of 
which  are  cognate  in  character  and  relate  to 
the  improvement  of  existing  streets,  but  does 
not  authorize  the  inclusion  in  the  same  or- 
dinance of  provisions  as  to  laying  out  and 
opening,  which  have  to  do  with  new  streets. 
Moreover,  paragraph  II  requires  a  separate 
assessment  of  damages  and  benefits  for  each 
improvement,  and,  whatever  doubt  there  may 
be  as  to  the  extent  to  which  this  goes  (Cook 
V.  Manasquan,  80  N.  J.  Law,  206,  76  Atl.  SIO), 
there  can  be  no  doubt  that  a  distinction  must 
be  made  between  benefits  due  to  laying  out 
and  opening  under  paragraph  I  and  improve- 
ments under  paragraph  II.  The  observance 
of  the  rule  is  especially  Important  in  a  case 
like  the  present,  where  there  was  no  orOi- 
nance  to  lay  out  and  open  a  street,  and  appar- 
ently no  laying  out  and  opening  in  point  of 
fact.  We  cannot  tell  how  much  of  the  assess- 
ments the  commissioners  attributed  to  lay- 
ing out  and  opening,  and  how  much  to  the 
improvement  of  the  street  -  AU  we  can  tell 
from  the  return  is  that  some  ot  tbe  assess- 
ment was  for  laying  out  and  opening  for 
which  there  was  no  anthority. 

[2]  There  is  a  further  difiicnlty.  Hie 
amount  of  the  assessment  is  much  In  excess 
of  the  cost  of  the  street  improvement,  and  ob- 
viously includes  some  of  the  cost  of  the  side- 
walks. The  return  of  the  commissioners  says 
nothing  about  an  assessment  for  tbe  side- 
walks. Under  the  statute,  the  cost  of  side- 
walks is  to  be  paid  by  the  owners  ot  the  lands 
in  front  ot  which  the  same  is  constructed,  a 
very  different  method  from  that  ot  an  assess- 
ment for  benefits,  lbs  oommlssioners  could 
not  legally  have  combined  the  two  in  a  single 
assessment,  and  it  is  probably  tor  that  reason 
that  they  returned  no  assessment  tor  side- 
walks ;  but  they  could  not,  by  thus  omitting 
to  assess  tor  sidewalks  according  to  the  stat- 
ute, clothe  themselves  with  anthority  to  as- 
sess for  the  street  improvements  more  than 
they  cost  The  suggestion  that  the  expense 
of  the  sidewalks  was  not  included  in  the 
$11,368.40  for  which  the  assessment  was  made 
is  futile.  The  determination  of  cost  on  page 
68  shows  that  there  was  included  for  "side- 
walk grading"  $3,327.84.  This  determination 
we  must  assume  to  be  correct  although  the 


B)For  otbar « 
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(N.J. 


amount  seems  large  for  grading  alone.  The 
resolution  printed  on  page  142,  on  which 
counsel  relies,  must  be  incorrect.  The  item 
"side  grading"  has  no  meaning  that  we  can 
ascertain,  unless  it  refers  to  the  sidewalks. 
Moreover,  there  was  a  contract  for  the  con- 
struction of  sidewalks,  and  as  near  as  we 
can  tell  the  road  construction  alone  would 
not,  under  the  contract  therefor,  amount  to 
the  total  cost  as  ascertained. 

The  assessment  must  be  set  aside,  with 
costs.  As  to  the  sidewalks  there  should  be 
a  new  assessment.  Whether  a  new  assess- 
ment of  the  cost  of  the  street  Improvement 
Is  permissible  is  not  clear.  The  answer  to 
the  question  seems  to  depend  chiefly  on 
whether  the  ordinances  authorized  the  ma- 
cadamizing of  the  street  We  will  hear 
counsel  as  to  the  form  of  the  Judgment  to  be 
entered. 

(90  N.  J.  Lav,  t78) 

TRENTON    &    MERCER    COUNTY    TRAC- 
TION CORP.  V.  INHABITANTS  OF 
CITY  OF  TRENTON  et  al. 

(Supreme  Ourt  of  New  Jersey.    Aug.  2,  1917.) 

1.  Carriebs  €=»12(4)  —  Regulation  —  Fares 

— JUKISDICnON. 

Public  Utility  Commission  has  jurisdiction, 
under  P.  L.  1011,  p.  380,  J  17h,  to  forbid  street 
railways  to  ^ut  ioto  effect  proposed  withdrawal 
of  sale  of  SIX  tickets  for  25  cents,  increasing 
rate  to  5  cents. 

2.  Cabbierb  «=3ia(9)— Contract  as  to  Ratxb 
—Rescission. 

Street  railway  company  cannot  rescind  con- 
tract with  city  as  to  fares  because  of  its  own 
mistake,  not  induced  by  city,  as  to  power  re- 
served by  city  to  alter  its  franchise  ordinances. 

3.  Carriers  <S=>12(9)— Contract  as  to  Rates 
—When  Complete. 

Where  street  railway  company's  directors 
had  ordered  its  officers  to  execute  agreement  as 
to  fares  on  passage  of  ordinance  of  same  tenor 
and  officers  cannot  vary  its  terms  and  directors 
do  not  intend  to  pass  on  matter  again,  agree- 
ment becomes  binding  on  passage  of  oruinance, 
since  all  that  remains  to  be  done'  is  to  execute 
formal  contract. 

4.  Carriers  0=9l2(9)— Gontbaot  as  to  Ratbs 
— CoNsi  deration. 

Where  city  was  threatening  to  alter  fran- 
chises of  street  railway  company  to  its  detri- 
ment, passage  of  ordinance  which  does  not  con- 
tain threatened  changes  is  sufficient  consider- 
ation for  agreement  of  company  to  continue  ex- 
isting fares. 

5.  Carriebs  iS=»12(0)— Contract  as  to  Rates 
— ErPBCT  ON  Lessor  Roaos. 

An  ordinance  as  to  street  oar  fares,  passed 
by  agreement  between  city  and  company,  is 
binding  also  as  to  line^  of  companies  under  long- 
term  leases  to  party  to  agreement. 

Certiorari  by  Trenton  4  Mercer  County 
Traction  Corporation  against  the  Inhabitants 
of  the  City  of  Trenton  and  otliers,  to  review 
an  ordn  of  the  Board  of  Public  Utility  Com- 
missioners.   AfDrmed. 

Argued  November  term,  1916,  before 
SWAYZE,  MINTURN,  and  KALISCH,  J  J. 

Frank  S.  Katzenbach,  Jr.,  of  Trenton  (Ed- 
ward M.  Hunt,  of  Trenton,  on  the  briefX  for 


prosecutor.  George  L.  Record,  of  Trenton 
(Charles  E.  Bird,  of  Trenton,  on  the  brief), 
for  City  of  Trenton.  Pranic  H.  Sommer,  of 
Newark,  for  Board  of  Public  Utility  <^minis- 
sioners. 

SWAYZE,  J.  Although  the  voluminous  rec- 
ord In  this  case  has  necessarily  required  a 
long  time  to  examine,  the  decision  may  well 
be  rested  on  a  single  point,  and  that  wlthhi 
narrow  compass.  The  prosecutor  seeks  to  set 
aside  an  order  forbidding  It  to  put  into  ef- 
fect a  proposed  withdrawal  <tf  the  sale  of  six 
tickets  for  25  cents  on  street  railways  operat- 
ed by  it.  These  railways  are  three  in  number, 
the  Trenton  Street  Railway  (Company,  the 
Mercer  County  Traction  Company,  and  the 
Trenton,  Hamilton  &  Ewlng  Traction  Com- 
pany. They  are  operated  under  leases  and 
agreements  of  October  15,  1910.  The  two 
latter  had  been  leased  t>rior  to  1909  to  the 
Qrst  named  for  999  years. 

[t]  We  think  It  dear  that  the  Public  Utili- 
ty Commission  had  jurisdiction  under  sec- 
tion 17,  par.  "h"  of  the  act.  P.  U  1911,  380. 
The  withdrawal  of  the  sale  of  six  tickets  for 
a  quarter  was  an  Increase  of  an  existing  late 
under  which  82  per  cent,  of  the  passengers 
carried  paid  a  fare  of  only  4Va  cents ;  by  the 
proposed  .withdrawal  they  would  be  forced  to 
pay  a  fare  of  6  cents. 

[2]  We  find  It  unnecessary  to  pass  upon  the 
question  whether  the  original  ordinances  and 
their  acceptance  amounted  to  a  contract  by 
which  the  companies  were  authorized  to 
charge  as  much  as  6  cents,  <>r  whether  they 
amounted  only  to  a  limitation  by  which  the 
companies  were  forbidden  to  charge  more 
ttian  6  cents.  It  is  likewise  unnecessary  in 
our  view  to  consider  whether  a  fare  of  4i/« 
cents  Is  reasonable  in  view  of  present  condi- 
tions and  ttve  situation  of  the  company.  We 
find  that  In  1909  a  new  contract  was  made 
between  the  city  and  the  company  which  re-' 
quires  the  coiqpany  to  sell  six  tickets  for  25 
cents  upon  all  cars  operated  in  the  dty  of 
Trenton.  The  facts  are  as  follows:  For 
i^any  years  tickets  had  been  sold  at  that  rate 
In  1909  the  street  railway  company,  proposed 
to  stop  the  sale.  Naturally  great  public  In- 
ter^t  was  aroused,  threats  were  made  of  at- 
tacks upon  the  franchises  of  the  company, 
and  the  city  authorities  were  preparing  for 
such  an  attack  and  for  amendments  of  the 
ordinances.  An  agreement  was  reached  by 
negotiation,  and  on  October  4, 1909,  the  Troi- 
ton  Street  Railway  Company  adopted  a  reso- 
lution waiving  its  right  to  notice  of  altera- 
tions .  in  the  ordinances,  and  directing  Us 
officers  to  execute  an  agreement  already  pre- 
pared' (a  copy  of  which  was  set  forth).  Imme- 
diately after  the  passage  of  a  new  ordinance, 
a  draft  of  which  had  been  submitted  by  the 
city  counsel  to  the  railway  company.  This 
ordinance  provided  for  the  sale  of  tickets 
at  the  old  rate  by  the  company  upon  all  can 


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663 


operated  in  the  city  of  Trenton.  The  ordi- 
nance was  passed  by  the  common  oonncll  on 
October  19th  and  approved  by  the  mayor  on 
October  22d,  18  days  after  the  resolution  of 
the  railway  company.  Had  the  agreement 
been  signed  by  the  officers  of  the  company  as 
directed  by  the  resolution  of  October  4th  on 
the  faith  of  .which  the  city  passed  the  ordi- 
nance, no  question  could  have  arisen.  In- 
stead of  that,  the  company,  after  the  passage 
of  the  ordinance,  rescinded  the  resolution  be- 
cause, as  the  rescinding  resolution  states.  It 
was  falsely  recited  therein  that  the  city  had 
reserved  the  right  to  alter  the  ordinances 
whenever  in  the  Judgment  of  the  common 
council  it  became  necessary  for  the  public 
good.  It  is  a  little  difficult  to  understand 
upon  what  theory  it  is  stq>po8ed  the  false  re- 
cital vitiates  the  action  of  the  company.  It 
is  not  charged  that  the  dty  did  anything  to 
mislead  the  company  In  this  respect ;  it  could 
not  have  done  so,  since  the  ordinances  were 
necessarily  aa  well  known  to  the  company  as 
to  the  city;  and  the  proposed  written  form 
of  contract,  submitted  by  the  dty  counsel,  re- 
dted  what  was  the  exact  truth,  that  the  right 
of  alteration  or  amendment  was  reserved  "by 
the  several  ordinances  aforesaid  or  some  of 
them."  The  addition  of  the  qualifying  words 
was  enough  to  call  the  attention  of  the  com- 
pany to  the  existence  of  a  question  as  to 
the  extent  of  the  dty's  right.  With  this 
draft  before  them,  the  directors  chose  to  put 
a  broader  statement  in  the  recitals  of  their 
own  resolution.  Manifestly  they  ought  not 
to  be  permitted  for  their  own  mistake  to  with- 
draw from  the  agreement  after  the  dty  had 
acted  thereon. 

[3]  It  is  argued  that  the  parties  did  not 
intend  that  there  should  be  a  complete  con- 
tract until  the  written  agreement  was  execut- 
ed.   The  case,  It  is  said,  Is  within  the  rule 
of  Water  Ck>mmlssloners  of  Jersey  City  v. 
Brown,  32  N.  J.  Law,  504,  dedded  by  the 
Court. of  Errors  and  Appeals  in  1866,  and  ap- 
plied by  the  Supreme  Court  in  Donnelly  v. 
Currie  Hardware  Co.,  66  N.  J.  Law,  388,  49 
AtL  428.    These  cases  are  not  applicable.    In 
tbe   first  the  water  commissioners  directed 
that  thdr  engineer  and  attorney  should  pre- 
pare a  contract  and  submit  the  same  for  ap- 
proval by  the  board  before  bdng  executed. 
The  court  said  that  several  particulars  as  to 
fbe  time  of  finishing  the  work,  as  to  the  man- 
ner of  doing  it,  and  as  to  the  guaranty  of 
its  permanence  remained  to  be  settled.    The 
second  case  was  dedded  upon  the  ground 
tbat  there  had  been  no  agreement  as  to  the 
time   allowed  for  beginning  and  completing 
tbe  -work  and  the  mode  of  payment,  matters 
wblcli  are  generally  provided  for  In  such  ar- 
rangements.     As  Lord   Cranworth   said   in 
Rld&eway  v.  Wharton,  6  H.  of  L.  Cases,  238, 
at  268,  the  fact  that  the  parties  Intend  a  sub- 
sequent agreement  to  be  made  Is  strong  evi- 
dence to  show  that  they  did  not  Intend  the 
previous  negotiations  to  amount  to  an  agree- 


ment; but  at  the  same  time  he  protested 
against  Its  being  supposed  because  persons 
wish  to  have  a  formal  agreement  drawn  ujk 
that  therefore  they  cannot  be  bound  by  a  pre- 
vious agreement  If  it  is  clear  that  such  an 
agreement  bad  been  made ;  and  he  expressed 
his  approval  of  Sir  Wllllnm  Grant's  dedslon 
In  the  leading  case  of  Fowle  v.  Freeman,  9- 
Vesey,  851.  In  Wharton  v.  Stontenbnrgb,  35 
N.  J.  Eq.  266,  it  was  held  that  a  final  agree- 
ment had  been  reached,  although  the  parties 
Intended  that  a  lease  embodying  the  agree- 
ment should  be  executed.  Tbe  applicability 
of  that  case  to  tbe  present  is  not  weakened  by 
the  fact  that  a  written  memorandum  would 
have  been  there  necessary  to  satisfy  the  stat- 
ute of  frauds  If  the  vendee  had  not  taken  pos- 
session. The  taking  possession  did  not  supply 
the  terms  of  the  lease,  and  before  decreeing 
that  the  lease  should  be  executed.  It  was  nec- 
essary for  the  court  to  find  that  a  final  agree- 
ment had  been  previously  reached,  and  that 
the  execution  of  the  lease  was  necessary  only 
by  way  of  part  performance  of  the  agree- 
ment, and  not  as  a  condition  precedent  to  the 
existence  of  a  final  agreement.  The  facts  of 
the  present  case  bring  it  within  the  rule  of 
Wharton  v.  Stoutenburgbu  The  draft  agree- 
ment had  been  submitted  by  the  dty  to  the 
company;  the  company  had  assented  to  Its 
terms ;  all  that  remained  was  for  tbe  execu- 
tive officers  to  execute  the  written  Instrument 
in  whldi  the  terms  of  the  agreement  were  set 
forth ;  but  the  officers  had  no  power  to  vary 
the  terms,  and  it  was  not  contemplated  that 
the  directors  should  again  pass  on  the  matter. 
Tbe  case  is  as  if  in  Water  Commissioners  of 
Jersey  City  v.  Brown,  the  agreement  bad 
been  already  prepared  and  adopted  by  tbe 
water  commissioners. 

[4]  There  was  sufficient  legal  considera- 
tion for  the  agreement  by  the  company.  It 
is  true  the  ordinance  did  not  affirmatively 
concede  any  benefit  to  the  company;  on  its 
face  it  was  rather  a  detriment;  but  that  is 
too  narrow  a  view  to  take.  The  situation 
was  that  the  company  was  liable  to  attack, 
and  the  ordinances  might  t>e  altered  or 
amended  in  such  a  way  aa  to  be  very  harm- 
ful,  or  at  least  productive  of  long  and  expen- 
sive litigation.  What  the  company  secured 
was  the  adoption  of  an  ordinance  which  con- 
tained no  such  drastic  changes;  the  benefit 
to  the  company  was  in  what  the  ordinance 
omitted,  not  In  what  it  contained.  In  saying 
this,  we  are  not  to  be  understood  as  suggest- 
ing that  the  mere  act  of  passing  the  ordi- 
nance in  pursuance  of  the  agreement  would 
not  be  a  suffident  consideration  in  a  legal 
sense. 

We  think  there  was  a  valid  contract  requir- 
ing the  company  to  sell  six  tickets  for  a  quar- 
ter, and  hence  the  Public  Utility  Commission- 
ers might  well  conclude  that  such  a  rate  wa» 
Just  and  reasonable  under  the  circumstances 
of  the  case. 

£5]  It  is  said,  however,  that  the  Mercer 


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101  ATIiANTIG  BBPORTBB 


(N.J. 


County  Traction  Company  and  the  Trentcm 
and  Hamilton  &  Ewing  Traction  Company 
could  not  be  affected  by  the  ordinance  be- 
cause no  official  action  was  taken  by  either 
with  reference  to  its  terms.  This  argument 
overlooks  the  fact  that  both  those  com- 
panies were  at  the  time  under  lease  to  the 
Trenton  .Street  Railway  Company  for  a 
term  of  which  more  than  990  years  were 
stUi  to  come.  The  probability  of  the  two 
lessor  companies  being  affected  prejudidaUy 
by  the  ordinance  is  negligible. 
The  order  la  affirmed,  with  costs. 

(88  N.  J.  bq.  a»      ■=■"■ 
FOUR  CORNERS  BLDG.  &  TX)AN  ASS'N  OF 
NEWARK  T.  SCHWARZWABLDER. 
(No.  42/244.) 

(0>nrt  «f  Chancery  of  New  Jersey.  July  10, 
1917.) 

1.  Neouobnoe  «s>1— Definition. 

Apart  from  any  willful  act,  the  "negligence" 
for  which  a  person  can  be  held  responsible  con- 
sists either  in  the  performance  of  an  act  which 
under  all  the  circumstances  he  is  bound  not  to 
perform,  or  the  nonperformance  of  an  act  which 
under  all  the  circumstances  ho  is  bound  to  per- 
form. 

[Ed.  Note. — For  other  definitions,  seo  Words 
and  Phrases,  First  and  Second  Series,  Negli- 
gence.] 

2.  Buiu>iNa  AND  Loan  Associations  #=» 
23(8)  —  Gboss  Neolioenob  or  Dibeotob  — 
Knowlkdoe  or  Mestino. 

A  director  of  a  building  and  loan  associa- 
tion was  guilty  of  gross  negligence  in  permit- 
ting the  secretary  to  pursue  the  custom  of  call- 
ing up  various  members  of  the  board  of  direc- 
tors on  the  occasion  of  a  meeting  and  getting 
their  permission  to  note  them  as  present  when 
they  were  absent,  and  the  director  must  be  held 
bound  for  such  knowledge  as  he  would  have  ac- 
quired if  in  fact  present  at  a  meeting. 

8.  BniLDiNO  ANn  Loan  Associations  4=> 
23(8)— Knowledge  ov  Dibectob. 
Where  a  director  of  a  building  and  loan 
association  was  not  present  at  a  meeting  at 
which  the  minutes  stated  a  report  on  an  appli- 
cation for  loan  was  made  by  the  committee  of 
which  the  director  was  a  member,  or  at  a  meet- 
ing at  which  the  loan  was  transferred  from  the 
applicant  to  another,  but  he  was  present  at  the 
meeting  at  which  minutes  of  the  meeting  when 
the  loan  was  transferred  were  approved,  he  was 
bound  hy  knowledge  of  whatever  appeared  in 
the  minutes. 

4,  BinLDiNO  AND  Loan  Associationb  9s> 
23(8)— "Nbouoencs"  of  Dibectob— Liabii.- 

ITY. 

Where  a  director  of  a  building  and  loan  as- 
sociation, also  executor  of  a  decedent's  estate, 
permitted  the  association  to  make  a  loan  on 
premises  on  which  the  estate  held  a  mortgage, 
the  director,  knowing  of  the  application,  and 
of  the  issuance  by  the  association  of  the  check 
therefor  in  time  to  have  stopped  payment,  was 
guilty  of  such  negligence  as  rendered  him  re- 
sponsible to  the  association  for  the  loss  occa- 
sioned it  by  reason  of  his  failure  to  act. 

6.  Building  and  Loan  Associations  <S=» 
23(8)— "Neguobnce"  of  Dibectob— Liabu.- 

ITT. 

Where  the  minutes  of  a  meeting  of  directors 
of  a  building  and  loan  association  at  which  de- 
fendant director  was  present  showed  that  the 
treasurer  reported  a  disbursement  on  account 


of  a  particular  mortga^,  and  defendant  di- 
rector, had  he  made  inquiries,  would  have  ascer- 
tained immediately  that  the  money  had  been 
advanced  on  property  on  which  the  estate  rep- 
resented by  him  as  executor  already  held  a  mort- 
gage, and  would  also  have  discovered  that  the 
loan  had  never  been  authorized  by  the  associa- 
tion, BO  that  the  disbursement  was  illegal,  the 
director  was  guilty  of  such  "negligence"  as  to 
make  him  responsible  for  consequent  loss  to 
the  association;  it  being  his  duty,  under  the 
constitution  of  the  association,  to  loan  the  funds 
and  gee  to  their  safe  investment. 
8.  Building  and   Loan  Associations  «=> 

23(8)  —  Dibectobs  —  Delegation  of  Duties 

TO  Counsel. 
The  directors  of  a  building  and  loan  asso- 
ciation have  no  right  to  shift  to  their  counsel 
the  duty  imposed  on  them  to  loan  the  associa- 
tion's funds  and  see  to  their  safe  investment. 


7.  Building  and  Loan  Associations 
23(8)— Liabilitt  of  Dibectob. 
'That  other  directors  of  a  building  and  loan 
association  were  responsible  for  any  loss  to  the 
association  through  a  loan,  as  well  as  defendant 
director,  was  no  objection  to  relief  to  the  aa- 
soaation  as  against  defendant  director. 

Suit  between  the  Four  Comers  Building  & 
Loan  Association  of  Newark  and  Frank 
Schwarzwaelder.    Further  argument  directed. 

Raymond,  Mountain,  Tan  Blarcom  &  Marsh, 
of  Newark,  for  complainant.  Francis  ChUd 
and  Thomas  S.  Henry,  both  ol  Newark,  for 
defendant 

LANE,  V.  O.  This  Is  a  proceeding  to  com- 
pel defendant  to  reimlmrse  complainant  for 
losses  alleged  to  have  been  sustained  by  com- 
plainant on  account  of  two  loans,  one  of  95,- 
000  on  property  in  South  Orange,  and  one  of 
?4,000  on  property  In  Bast  Orange. 

The  complainant  is  a  building  and  loan  as- 
sociation, and  the  defendant  was  one  of  Its 
directors  at  the  times  the  respective  loans 
were  made.  TSxe  defendant  was  also  at  the 
same  time  one  of  the  executors  of  the  es- 
tate of  Loehnberg,  which  estate.  It  subse- 
quently transpired,  held  mortgages,  prior  to 
those  of  the  building  and  loan  association, 
upon  the  prc^erties  in  question,  with  the  re- 
sult that,  upon  a  foreclosure  of  a  mortgage 
prior  to  that  held  by  the  Loehnberg  estate  on 
the  South  Orange  property,  the  equity  of  the 
building  and  loan  association  was  wiped  oat, 
and  upon  the  foreclosure  of  the  mortgage  held 
by  the  Loehnberg  estate  oa  the  Bast  Orange 
property  the  buUdlng  and  loan  assodatioa.  In 
order  to  protect  its  rights,  was  obliged  to  buy 
in  the  property,  which  it  atlil  holds.  The 
charge  is  that  the  defendant,  as  a  director  of 
the  building  and  loan  association,  has  beea 
guilty  of  such  negligence  as  makes  him  re- 
sponsible for  the  losses  accruing  to  the  build- 
ing and  loan  association.  In  French  v.  Arm- 
strong, 79  N.  J.  Eq.  283,  82  Atl.  101,  Vice 
Chancellor  Stevens,  in  dealing  with  the  re- 
sponsibilities of  directors  of  building  and  loan 
associations,  saia: 

"In  Williams  v.  McKay,  40  N.  J.  Eq.  1S9 
[53  Am.  Rep.  775],  the  case  of  a  receiver  of  a 
savings  bank  against  its  managers,  it  was  held 
by  the  Court  of  Errors  that  the  receiver  rep- 


CssFor  othw  owss  see  came  topic  and  KBY-NVUBER  tn  all  Kay-Numb«r«d  Digests  and  Indaxas 


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FOUR  CORNKRS  BLDQ.  <fc  LOAK  ASS'N  t.  SCSWARZWAELDBB 


565 


resents  sot  only  the  corporation,  bat  its  de- 
positors and  creditors,  and  that  the  managers 
stand  to  such  depositors  and  creditors  in  the 
character  of  trustees:  that  the  trust  was  di- 
rect, and  that  as  such  that  it  was  exempt  from 
tho  operation  of  the  statute  of  limitations.  It 
appears  to  me  that  building  and  loan  associa- 
tions stand  on  very  much  the  same  footing  as 
savings  banks.  They  are  quasi  public  institn- 
tions,  dealt  with  as  such  by  the  Legislature 
•  •  *  and  having  very  similar  objects.  They 
are  both  designed  to  conserve  the  scanty  sav- 
ings of  wage-earners  and  other  people  of  small 
means.  If  the  managers  of  saving  banks  are 
trustees  of  creditors  and  depositors,  I  see  no 
reason  why  the  directors  of  building  and  loan 
associations  do  not  stand  in  precisely  the  same 
relation  to  their  creditors  and  so-called  stock- 
holdets." 

And  the  Ooart  of  Appeals  in  Oertiard  y. 
Welsh,  80  N.  J.  Bq.  206,  82  AtL  871,  dealing 
with  the  responsibilities  of  directors  of  a 
building  and  loan  association,  was  apparently 
of,  although  not  directly  so  stating,  the  same 
opinion,  citing  the  opinion  of  the  chancellor 
on  final  hearing  in  Williams  r.  McKay,  46  N. 
J.  Eq.  25,  18  Atl.  824. 

In  Williams  v.  McKay,  40  N.  J.  Eq.  189, 
at  page  195,  53  Am.  Hep.  775,  the  Court  of 
Appeals  said: 

"The  duty  belonging  to  sncfa  a  tdtnation  is  a 
plain  one— to  care  for  the  mon^s  intrusted  to 
them  in  the  manner  provided  m  the  charter, 
and  to  exercise  ordinary  care  and  prudence  in 
Bo  doing.  It  is  true  that  the  defendants  were 
unpaid  servants,  but  the  dut^-  of  bringing  to 
their  office  ordinary  skill  and  vigilance  was  none 
the  less  on  that  account,  for  to  this  extent  there 
is  no  distinction  known  to  the  law  between  a 
▼olonteer  and  a  salaried  agent.  These  defend- 
ants held  themselves  out  to  the  public  as  the 
managers  of  this  bank,  and  by  so  doing  they 
severally  engaged  to  carry  it  on  in  the  same 
ivay  that  men  of  common  prudence  and  skill 
conduct  a  similar  business  for  themselves.  This 
is  the  measure  of  the  responsibility  of  officers 
of  this  kind." 

And  on  final  bearing  the  Cbanoellor,  46  N. 
J.  Eq.  at  page  56, 18  AtL  at  page  835,  said: 

"Trustees  of  the  character  of  the  defendants 
are  not  merely  required  to  be  honest,  but  they 
must  also  bring  to  the  discharge  of  the  duties 
that  they  undertake  ordinary  competency,  to- 
gether   with    reasonable    vigilance    and    care. 
GTbey  cannot  excuse  imprudence  or  indifference 
by   showing  honesty  of  intention  coupled  with 
g^ross   ignorance   and   inexperience,   or   coupled 
-with  an  absorption  of  their  time  and  attention 
in  their  private  affairs.    The  rule  in  this  respect 
ia  admirably  stated  by  3ud^e  Barl  of  the  Court 
of   Appeals  of  New  York  in  Hun  v.  Gary,  82 
N.    X.  74  [37  Am.  Rep.  6461,  in  this  language: 
'One  who  voluntarily  takes  tne  position  of  direc- 
tor  and  invites  confidence  in  that  relation,  un- 
dertakes, like  a  mandatory,  with  those  wliom  he 
represents  or  for  whom  he  acts,  that  he  pos- 
sesses at  least  ordinary  knowledge  and  skill,  and 
tbat  he  will  bring  them  to  bear  in  the  discharge 
of    bis  duties.     Such  is  the  rule  applicable  to 
public    offlcers,    to   professional    men,    and    to 
mechanics,  and  such  is  the  rule  which  must  be 
applicable  to  every  person   who  undertakes  to 
act    for  another  in  a  situation  or  employment 
requiring    skill    and     knowledge    gratuitously. 
Crbese  defendants  ordinarily  took  the  position  of 
trustees  of  the  bank.     They  invited  depositors 
to   confide  to  them  their  savings  and  to  intrust 
the     safe-keeping  and  manogement  of  them   to 
their  skill  and  prudence.     Tbey  undertook,  not 
4>nly  that  they  would  discharge  their  duties  with 
prox>er  care,  but  that  they  would  exercise  the 


ordinary  skill  and  judgment  requisite  for  the 
discharge  of  their  delicate  trust,  " 

And  see  Campbell,  Receiver,  t.  Watson,  02 
N.  J.  Eq.  396,  50  Atl.  120,  and  Barrett  t. 
Bloomfield  Savings  InsUtution,  64  M.  J.  Eq, 
425   54  AtL  543. 

In  BrlggB  V.  Spauldlng,  141  U.  S.  132,  11 
Sup.  Ct  924,  35  L,  Ed.  662,  the  Supreme  Court 
of  the  United  States  in  dealing  with  the  lia- 
bility of  directors  said  with  respect  to  what 
is  negligence: 

''If  very  little  care  is  due  from  him,  and  he 
fails  to  bestow  that  little,  it  is  called  gross 
negligence.  If  very  great  care  is  due,  and  he 
fails  to  come  np  to  the  mark  required,  it  is 
called  slight  negligence.  And  if  ordinary  care  is 
due,  such  as  a  prudent  man  would  exercise  ia 
bis  own  affairs,  failure  to  bestow  that  amount 
of  care  is  called  ordinary  negligence.  In  each 
case  the  negligence,  whatever  epithet  we  give 
it,  ia  failure  to  bestow  the  care  and  skill  which 
tho  situation  demands;  and  hence  it  is  more 
Mrictly  accurate,  perhaps,  to  call  it  simply 
'negligence.'  •  •  *  In  any  view  the  degree 
of  care  to  which  these  defendants  were  bound  ia 
that  which  ordinarily  prudent  and  diligent  men 
would  exercise  under  similar  circumstances,  and 
in  determining  that  the  restrictions  of  the  stat- 
ute and  the  usages  of  business  should  be  taken 
into  account.  What  may  be  negligence  in  one 
case  may  not  be  want  of  ordinary  care  in  an- 
other, and  the  question  of  negligence  is  there- 
fore ultimately  a  question  of  fact,  to  be  deter- 
mined undor  all  the  drcnmstances." 

[1]  It  seems  to  me  that  leaving  out  of  con- 
sideration any  willful  act  the  negligence  for 
which  a  person  can  be  held  responsible  con- 
sists  either  In  the  performance  of  an  act 
which  under  all  the  drcumstauces  he  Is  bound 
not  to  perform  or  the  nonperformance  of  an 
act  whldi  under  all  the  drciunstanoes  he  is 
bound  to  perform. 

In  Citizens'  Building,  Loan  &  Sav.  Associ- 
ation r.  Corlell,  34  N.  J.  Eq.  at  page  392,  the 
court  said,  referring  to  and  approving  an 
opinion  by  the  Pennsylvania  court: 

"It  was  there  said  that,  while  directors  ai« 
personally  responsible  to  the  stodsbolders  for 
any  losses  resulting  from  fraud,  embezzlement^ 
or  willful  misconduct,  or  breach  of  trust,  for 
their  own  benefit,  and  not  for  the  benefit  m  the 
stockholders,  for  gross  inattention  and  net^- 
gence,  by  which  such  fraud  or  misconduct  has 
been  perpetrated  by  agents,  officers,  or  codirec- 
tors,  yet  they  are  not  bable  for  mistakes  of  judg- 
ment, even  though  they  may  be  so  gross  as  to 
appear  absurd  and  ridicnlous,  provided  they  are 
honest,  and  are  fairly  within  the  scope  of  the 
powers  and  discretion  confided  to  the  managing 
body." 

Qusre,  whether  the  last  remark  Is  quite 
consistent  with  the  duty  of  a  person  becom- 
ing a  director  In  an  institution  such  as  a 
building  and  loan  association  to  bring  to  his 
office  ordinary  competency?  In  this  case 
there  is  no  charge,  or  at  least  no  proof,  of 
fraud,  embezzlement,  or  willful  misconduct, 
or  breach  of  trust  for  the  benefit  of  the  de- 
fendant, nor  is  there  any  question  of  a  mis- 
take of  Judgment  The  sole  question  la 
whether  the  defendant  was  quilty  of  gross 
inattention  and  negligence  (which  means 
simply  the  failure  to  give  such  attention  and 
to  perform  such  acts  as  the  circumstances 
required)  as  to  make  posslNe  the  fraud  and 


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101  ATLA.NTIO  REPORTBB 


(N.J. 


misconduct  which  was  undoubtedly  i>erpe- 
trated  by  an  officer  of  the  complainant. 

First.  The  facts  are  as  follows  with  re- 
spect to  the  South  Orange  loan:  Roland  D. 
Crocker  was  the  solicitor  for  the  association. 
In  1909  be  conveyed  the  property  to  Mabel 
Daly,  who  Immediately  made  a  mortgage  to 
the  executors  of  the  estate  of  Loehnberg,  of 
whom  defendant  was  one.  The  property  was 
then  immediately  reconveyed  by  the  Dalys  to 
Crodter,  who  held  title  unUl  April  1,  191S, 
when  he  conveyed  It  to  Arthur  M.  Sims,  who 
by  instrument  dated  on  the  same  day  mort- 
gaged it  to  the  complainant  Crocker  caused 
an  application  to  be  made  to  the  complain- 
ant for  a  loan  on  the  property  as  early  as 
October,  1912,  in  the  name  of  Louis  Wagner, 
tor  17,000.  The  defendant  was  appointed 
one  of  the  inspection  committee.  At  a  meet* 
ing  of  the  directors  held  on  the  25th  of  Oc- 
tober, 1912,  at  which  the  defendant  was 
present,  a  report  of  the  defendant,  the  only 
one  of  the  committee  reporting,  was  present- 
ed, recommending  a  loan  of  $5,000.  The 
property  Is  clearly  described  In  the  mlnutea 
On  the  2Sth  of  February,  1913,  at  a  meeting 
of  the  directors  at  wlilch  the  defendant  was 
present.  It  was  recommended  that  the  ofD- 
cers  be  empowered  to  grant  such  amount  of 
the  loan  as  should  be  unanimously  recom- 
mended by  the  committee,  which  Included 
the  defendant.  The  minutes  of  a  meeting  of 
the  directors  held  on  March  28,  1913,  the 
defendant  not  being  present,  state  that  all 
the  members  of  committee  recommended  that 
a  loan  of  $5,000  be  granted  to  Louis  Wagner 
on  the  property  in  question.  The  next  ref- 
erence to  the  matter  Is  In  the  minutes  of  a 
meeting  held  on  April  25,  1913,  at  which 
the  defendant  was  not  present.  The  minutes 
state: 

"Referring  to  application  for  loan  by  Louis 
Wagner,  Brooklyn,  N.  Y.,  to  whom  a  loan  of 
$5,000  was  granted  on  property  60-62  south 
side  of  Second  street,  South  Orange,  Mr.  Wag- 
ner having  sold  the  property  to  Arthur  Sims, 
and  all  of  the  committee,  Mr.  Frank  Shulz  and 
Mr.  Thomas  F.  Peer  and  Mr.  Frank  Schwara- 
^adder,  reporting  in  favor  of  loan  of  $5,000 
to  Arthur  Sims  on  property  60-^  south  side 
Second  street,  South  Orange,  K.  J.,  it  was,  on 
motion  of  Mr.  Merlinger,  seconded  by  Mr. 
Stone,  ordered  that  the  committee  recommenda- 
tion be  received  and  granted." 

[2]  The  minutes  of  a  meeting  of  May  23, 
1913,  at  whldi,  according  to  the  minutes,  de- 
fendant was  present,  state: 

"On  motion  duly  made  and  seconded,  minutes 
of  last  meeting  and  special  meeting  were  ap- 
proved." 

And  at  the  same  meeting  the  treasurer's 
report  was  received,  the  first  item  of  dis- 
bursement being  the  sum  of  $4,813.50  for  Ar- 
thur Sims  mortgage.  Again  at  a  meeting  of 
the  directors  July  2,  1913,  at  which  the  de- 
fendant, according  to  the  minutes,  was  pres- 
ent, the  minutes  of  May  23,  1913,  were  read 
and  approved.  It  is  insisted  for  the  defend- 
ant that  the  fact  that  the  minutes  of  May  23 
and  July  2,  1913.  indicate  that  he  was  pres- 


ent does  not  prove  that  fact,  because  It  was 
a  custom  of  the  secretary  to.  If  there  was  a 
lack  of  quorum,  call  up  various  members  of 
the  board  and  get  their  permission  to  note 
them  as  present  The  defendant  swears  that 
he  never  knew  of  any  loan  to  a  man  named 
Sims,  and  that  therefore  it  must  be  that  the 
secretary  pursued  the  course  heretofore  ad- 
verted to  with  respect  to  these  two  meetings. 
If  this  be  true,  then  the  defendant  Is  un- 
questionably guilty  of  gross  negligence  in 
permitting  such  a  practice  to  be  pursued, 
and  he  must  be  held  bound  for  such  knowl- 
edge as  he  would  have  acquired  If  he  were 
in  fact  present  In  considering  this  phase 
of  the  case  I  have  dealt  with  it  as  if  he 
were  in  fact  present  at  the  two  meetings  in 
question,  and  I  find  as  a  fact  that  there  is 
not  sufficient  evidence  to  indicate  tliat  the 
minutes  are  Incorrect  Crocker  caused  to  be 
filed  a  forged  satisfaction  of  the  mortgage 
held  by  the  Loehnberg  estate,  and  also  caus- 
ed to  be  filed  a  forged  satisfaction  of  a  first 
mortgage  held  by  one  Bercaw  upon  the  prop- 
erty. The  Bercaw  mortgage  was  foreclosed, 
and  the  property  sold  for  less  than  a  suffi- 
cient amotut  to  pay  anything  on  the  subse- 
quent Incumbrances. 

[S]  The  testimony  is  to  the  effect  that 
the  defendant  examined  the  premises  In 
question  as  executor  of  the  Loehnberg  es- 
tate upon  various  occasions,  that  he  was 
familiar  with  the  loan,  and  that  he  received 
Interest  regularly  from  Crocker  until  he  dis- 
appeared in  September,  1914.  It  is  incon- 
ceivable to  me  that,  when  be  acted  as  an 
inspector  upon  the  application  of  Louis  Wag- 
ner, and  examined,  as  he  says,  the  proper!?, 
he  did  not  realize  that  an  application  was 
being  made  to  the  building  and  loan  associ- 
ation for  a  loan  upon  pr(^;>erty  upon  whidi 
he  already  held  a  mortgage.  He  advised  the 
loan.  He  made  no  inquiry  as  to  liow  bis 
mortgage  was  going  to  be  taken  care  of.  'Ae 
officers  were  empowered  to  grant  a  loan  at 
a  meeting  at  which  he  was  present,  and  he 
still  took  no  steps  either  to  inquire  as  to 
how  his  loan  was  going  to  be  taken  care  of 
or  to  advise  the  association  that  the  estate 
which  he  represented  held  a  mortgage.  Al- 
though he  was  not  present  at  the  meeting 
held  March  28,  1913,  at  which  the  minutes 
state  a  report  was  made  by  the  committee  of 
which  he  was  a  member,  recommending  that 
a  loan  of  $6,000  should  be  granted,  (w  at 
the  meeting  of  April  25,  1913,  at  whicb 
time  the  loan  was  transferred  from  Wagner 
to  Sims,  yet  be  was  present  at  the  meeting 
of  May  23,  1913,  at  which  the  minutes  of  the 
meeting  of  April  25, 1913,  were  approved,  and 
he  is  therefore  bound  by  knowledge  of  what- 
ever appears  In  these  minutes.  The  minutes 
of  AprU  25,  1918,  distinctly  refer  to  the 
transfer  from  Wagner  to  Sims,  and  describe 
the  property,  and  refer  to  the  fact  that  all 
the  members  of  the  committee,  including  him- 
self, had  reported  in  favor  of  the  loan.  At 
the  meeting  of  May  23,  1913,  he  made  no 


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FOUR  CORNERS  BLDO.  <fc  UiAJS  ASS'K  v.  SOHWARZWAELDER 


667 


liiquli7  as  to  how  the  money  due  on  the 
mortgage  held  by  the  estate  that  he  repre- 
sented wonld  be  paid,  nor  did  he  notify  hla 
fellow  directors  of  the  existence  of  such  a 
mortgage^  At  the  same  meeting  the  treas- 
urer reported  that  he  had  disbursed  the 
sum  of  $4313.50  for  the  Arthur  Sims  mort- 
gage. Apparently,  If  the  defendant's  story 
is  to  be  believed,  he  sat  quiet  when  this  re- 
port was  presented  and  made  no  Inquiry 
whatever  to  ascertain  the  authority  of  the 
treasurer  for  the  disbursement  of  this  large 
sum  of  money.  He  knew  that  he  had  recom- 
mended a  loan  of  $5,000  on  property  already 
Incumbered  by  a  mortgage  under  his  control, 
and  from  October  to  May  made  no  Inquiry 
as  to  what  had  become  of  the  matter.  'Hie 
check  was  not  paid  until  July  10,  1013,  so 
that  if  he  had  protested  on  May  23,  1913, 
the  payment  of  the  check  might  have  been 
stopped.  On  July  2,  1913,  at  a  meeting  at 
which  the  defendant  was  present,  and  before 
the  payment  of  the  check,  the  minutes  of 
May  23,  1913,  were  approved,  and  the  Sims 
mortgage,  at  least  constructively  called  to 
Ills  attention. 

[4]  It  seems  to  me  that  all  of  the  circum- 
stances Indicate  that  with  respect  to  this 
loan  the  defendant  is  guilty  of  such  negli- 
gence as  renders  him  responisible  for  the  loss 
which  was  occasioned  to  the  association  by 
reason  of  his  failure  to  act  The  duties  of 
the  directors  of  the  association  are  defined 
In  section  2,  art  9,  of  the  Constitution: 

"Section  2.  The  board  of  directors  shall  meet 
regularly  at  four  p.  m.  on  tho  third  Thursday 
of  each  and  every  month,  at  such  place  as  they 
or  a  majority  shall  appoint  for  the  purpose  of 
receiving  from  the  stockholders  their  monthly 
dues,  interest  and  fines,  and  pay  the  same  into 
tho  treasury;  to  loan  out  the  funds  and  see 
to  their  safe  investment,  and  to  attend  to  the 
financial  concerns  of  the  association  senerally." 

Article  2,  §  3,  provides: 
"No  money  sliall  be  loaned  on  any  property 
already  incumbered." 

Under  -the  authorities  to  which  I  hav^  re- 
ferred It  is  no  excuse  to  say  that  the  defend- 
ant was  ignorant  and  incompetent  or  so  en- 
groEScid  in  his  own  affairs  as  not  to  be  able 
to  give  proper  attention  to  the  affairs  of  the 
building  and  loan  association.  He  was  bound 
to  apply  to  his  duties  as  director  of  the  build-> 
ing  and  loan  association  that  degree  of  care 
wtilcli  an  orainarlly  prudent  man  would  ex- 
ercise with  respect  to  Ms  own  affairs. 

The  question  is  the  amount  of  damages 
for  which  he  may  be  held.  If  it  appears  that 
the  first  mortgage  v^as  foredoscSd  and  that 
the  property  did  not  realize  sufficient  to  pay 
the  first  mortgage,  then,  if  in  fact  the  defend- 
ant had  brought  to  the  attention  of  the  build- 
ing and  loan  association  the  existence  of  his 
mortgage,  it  is,  of  course,  conceivable  that 
Ills  mortgage  might  have  been  paid  off  out  of 
the  proceeds  of  the  loan,  and  the  loan  still 
made,  and  stUl  wonld  have  resulteU  in  the 
loss.  It  Is,  on  the  other  hand,  conceivable 
.tDat  If  the  existence  of  this  second  mortgage 


held  by  the  Loehnberg  estate  had  been  dis- 
closed, then  an  Investigation  would  have  been 
made  which  might  have  disclosed  the  exist- 
ence of  the  prior  mortgage  and  the  rascality 
of  Crocker  an'd  would  have  saved  the  associa- 
tion from  any  loss.  Upon  this  point  I  desire 
to  bear  counsel. 

[S]  Second.  With  respect  to  the  East  Or- 
ange loan.  There  Is  nothing  in  the  minutes 
of  the  board  of  directors  authorizing  the 
granting  of  the  loan  to  Aschenbach  on  the 
property  in  East  Orange.  The  files  merely 
show  an  application  signed  by  Aschenbach, 
without  date,  asking  for  a  loan  of  $4,000.  It 
bears  the  name  of  William  B.  Howell,  Robert 
Ii.  Hopkins,  as  the  committee  recommending 
it.  It  contains  no  description  of  the  property 
except  "Map  of  Ampere  section  of  property 
of  East  Orange  Ampere  Loan  Company."  In 
December,  1909,  William  H.  Daly  and  wife 
had  executed  a  mortgage  to  the  Loehnberg 
estate  of  which  defendant  was  executor,  for 
$4,000.  In  September,  1910,  Albert  B.  Aschen- 
bach an'd  wife  executed  a  mortgage  to  the 
complainant  association  for  $4,000  upon  the 
same  property.  The  only  reference  to  this 
loan  is  contained  in  the  minutes  of  a  meet- 
ing of  the  board  of  directors  held  on  Septem- 
ber 22,  1910,  at  which  the  defendant  was 
present,  at  which  the  treasurer  reported  a  dis- 
bursement on  September  4th  of  $3,019  on  ac- 
count of  Aschenbach  mortgage.  The  defend- 
ant made  no  Inquiries  with  respect  to  this  pay- 
ment. If  he  had,  he  would  have  Immediately 
discovered  tlmt  the  money  had  been  advanced 
upon  property  upon  which  the  estate  repre- 
sented by  him  already  held  a  mortgage.  He 
would  also  have  discovered  that  the  loan  had 
never  been  authorized  and  the  disbursement 
was  therefore  Illegal.  Unless  reports  of  offi- 
cers are  to  be  received  and  approved  pro 
forma  and  members  of  a  board  of  directors 
excused  from  any  Investigation  whatever.  It 
seems  to  me  that  the  act  of  the  d^endant  was 
gross  Inattention  and  such  negligence  as  make 
him  responsible  for  the  consequences  of  ills 
inattention.  I  cannot  conceive  tbbt  he  has 
performed  his  duty  as  a  member  of  the  board 
of  directors,  intrusted  with  the  savings  of 
poor  Investors  whose  duties  are  defined  to  be 
"to  loan  out  the  funds  and  see  to  their  safe 
investment."  Here  again  the  question  arises 
as  to  the'  measure  of  damages.  The  Loehn- 
berg mortgage  was  foreclosed,,  the  property 
bought  in  by  the  association,  which  still  holds 
it.    I  will  hear  counsel  upon  this  point. 

[8]  In  defense  of  this  director  It  is  said  that 
he  properly  relied  upon  Counsel  of  the  associa- 
tion, Crocker,  who  up  to  the  time  he  abscond- 
ed In  September,  1914,  bore  an  excellent  rep- 
utation. The  duty  of  counsel  Is  to  act  as 
legal  adviser  to  the  board,  to  examine  the 
title  to  every  security,  and  report  thereon 
to  the  directors,  to  prepare  obligations  and 
contracts,  and  to  transact  the  legal  business 
of  the  society.  The  directors  have  no  right 
to  shift,  to  counsel  the  duty  Impose'd  upon 


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101  ATIiAMTIO  REPORTER 


(N.J. 


tbem  to  loan  ont  the  funds  and  see  to  tbeir 
aafe  Investment.  There  ia  no  proof  before 
me  that  counsel  ever  reported  to  defendant 
or  to  the  board  that  the  title  to  either  of  the 
premises  In  question  was  clear.  If  counsel 
of  the  association  had  rei>orted,  It  would  Im- 
mediately have  occurred  to  the  defen'dant 
that  the  report  was  false,  because  a  meve  ex- 
amination of  the  papers  would  have  demon- 
strated that  the  two  mortgages  held  by  the 
Loetmberg  estate  had  not  been  satisfied,  and 
that  the  titles  were  not  clear. 

Tbe  statute  of  limitations  is  pleaded,  but 
not  seriously  argued.  The  point  seems  to 
be  disposed  of  by  the  following  cases :  Dal  ley 
V.  Kleman,  75  N.  J.  Law,  276,  67  Atl.  1027; 
Orane  v.  Ketcham,  83  X.  J.  Law,  327,  84  Atl. 
1062;  Fryer  v.  Mount  Holly  Water  C3o.,  87 
N.  J.  Law,  57,  93  Att.  679;  Williams  ▼.  Mc- 
Kay, 40  N.  3.  Eg.  180,  53  Am.  Rep.  775; 
French  r.  Armstrong,  79  N.  J.  Eq.  283,  82 
Afl.  101. 

[7]  The  fftct  that  other  directors  may  be 
also  responsible  for  any  loss  which  occurred 
by  reason  of  the  East  Orange  loan  appears 
to  presNit  no  objection  to  relief.  Stockton, 
Receiver,  v.  Anderson,  40  N.  J.  Eq.  486,  4 
Atl.  642;  Williams  v.  McKay,  46  N.  J.  Eq.  at 
page  39,  18  Atl.  824. 

Within  a  week  counsel  on  either  side  may 
present  such  additional  argument  niton  the 
facts  or  law  as  they  may  be  advised. 

If  there  is  an  apparent  error  In  dates, 
amounts,  etc.,  or  with  respect  to  any  fbct,  I 
wish  counsel  would  bring  it  to  my  attention, 
as  these  conclusions  have  been  prepaid  with- 
out having  before  me  a  copy  of  the  testimony. 
I  do  desire  to  hear  from  them  particularly 
with  respect  to  the  queries  which  I  have 
above  indicated. 


WARNB    T.    OREENBAUM.     (No.   48/261.) 

(0>urt  of  (Chancery  of  New  Jersey.    July  26, 
1917.) 

1.  Yendob  and  Pttbohabeb  <8=>130(7)— Sxtffi- 

OIKNCT   OF    Tmx   BT   AdVKBSB    POSSESSION. 

Fact  that  acme  unknown  heirs  of  complain- 
anf  ■  predecessor  in  title  did  not  join  in  convey- 
ance to  person  nnder  whom  she  daima  does  not 
render  title  unmarketable,  where  she  and  those 
under  whom  she  claims  have  been  In  open,  con- 
tbiuoos,  and  nndisputed  adverse  possession  of 
premises  under  color  of  title  for  more  than  45 
years  and  no  daim  Is  made  that  unknown  heirs 
were  under  any  disability  that  would  prevent 
them  from  asserting  their  rights. 

2.  Advebsk    Possession    «=385(1)  —  Hosnut 

CHABACTKB— COLOB  OF  TiTia— Pbbsumption. 

One  who  enters  under  color   of  title  and 

openly  and  continuouslv  uses  property  must  be 

assumed  to  do  so  with  intent  to  claim  adversely 

to  unknown  heirs. 

Action  by  Grace  Wame  against  Adolph 
Oreenbanm.    Decree  for  complainant 

August  C.  Streitwolf,  of  New  Brunswick, 
for  complainant  Leo  Goldberger,  of  Perth 
Amboy,  for  defendant 


FOSTER,  V.  C.  This  bUl  Is  filed  for  the 
specific  performance  of  a  contract  dated  No- 
vember 18,  1916,  made  by  the  parties  for 
the  purchase  and  sale  of  certain  real  estate 
in  the  dty  of  Perth  Amboy. 

The  case  has  been  submitted  on  an  agreed 
state  of  facts,  from  which  it  a^ears  that 
complainant  a  widow,  by  the  contract  In 
question,  agreed  to  sell  and  convey  to  de- 
fendant the  premises  described  in  the  bill  for 
$10,450,  subject  to  a  mortgage  for  $5,000,  and 
that  on  tha  execution  of  the  contract  a  pay- 
ment of  $600  was  made  on  account  of  the 
purchase  price.  The  balance  of  the  price  was 
to  be  paid  and  "a  free  and  clean  warranty 
deed  for  the  property"  was  to  be  delivered 
by  March  1,  1917.  On  this  date  a  warranty 
deed,  containing  the  usual  covenants,  duly 
executed  by  complainant  conveying  the  prop- 
erty to  defendant,  was  tendered  to  defendant 
and  he  refused  to  accept  the  same  on  the 
ground  that  complainant  was  not  the  owner 
of  the  fee  of  said  premises,  and  that  certain 
undivided  rights  therein  were  vested  In  the 
heirs  of  William  Bennett,  deceased,  unknown 
and  outstanding. 

William  Bennett  at  the  time  of  his  death 
in  1800  owned  the  premises  in  fee.  By  his 
win,  not  dated,  but  made  in  1790,  and  pro- 
bated in  the  Prerogative  Court  in  1800,  he 
devised  the  premises  under  the  following 
paragraph  of  his  will: 

"I  give  and  bequeath  all  my  estate,  real  and 
personal  that  Bbafl  be  remaining  after  the  afore- 
said conditions  and  orders  be  lullv  observed  to 
my  son  William  and  his  heirs  ana  assigns  tor- 
ever,  and  if  it  diould  so  happen  that  my  said 
son  should  die,  or  not  have  lawfol  iseue  of  his 
body,  before  he  shall  arrive  at  the  age  of  twenty- 
one  years,  then  and  in  sudi  case  «J1  my  estate 
to  my  said  son  William  herd>y  bequeathed  shall 
descend  to  my  brothers  and  sisterar  sons  in  man- 
ner following,  that  is,  one  moiety  or  one-half 
part  to  the  sons  of  my  brother,  Hendridcson 
William  Bennett  and  one-fonrth  part  to  the 
sons  of  my  brother-in-law  Walter  Stuea."  (Also 
known  as  Walter  Hires.) 

The  son  William  Bennett  was  an  idiot  and 
he  died  unmarried  in  1866,  and  by  the  terms 
of  his  father's  will  the  sons  of  Hendrickson 
W.  Bennett  and  Jacobson  W.  Bennett  and 
of  Walter  Stires  (or  Hires)  or  their  lawful 
issue  became  seised  of  the  premises,  and 
some  of  them  made  a  deed  for  their  Interest 
in  the  premises  to  Joseph  Imlay  in  1866,  and 
to  Henry  S.  Uttle  in  1867,  the  last  named 
having  acquired  all  of  Imlay's  rights  In  the 
premises.  On  April  1,  1871,  Henry  S.  Utde 
conveyed  the  premises  to  HexekUh  Wame 
and  Abraham  Wame.  On  February  2, 1878. 
Hezekiah  Wame  and  wife  conveyed  their 
Interest  in  the  property  to  Abraham  Wame. 
All  these  deeds  were  duly  recorded.  Abra- 
ham Wame  died  intestete  seised  of  the  prem- 
ises on  July  21,  1883,  leaving  his  widow, 
Cornelia  Wame,  and  his  sons.  Wood  Wame, 
Abraham  Wame,  and  Elmer  Wame,  surviving, 
all  residents  of  Matawan  In  this  state.  Cor- 
nelia Wame  was  granted  letters  of  admlniB- 


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IX.  3.) 


STATX:  V.  J£FFSIlSON 


669 


tratlon,  and  she  died  in  1893,  and  thereafter 
Wood  Wame  died,  leaving  a  widow,  Mary 
Wame,  now  deceased.  On  March  21,  1893, 
Abraham  Wame,  unmarried,  conveyed  all  his 
right,  title,  and  inteceet  In  the  premises  to 
his  brother  Ehner.  On  Jane  12,  1913,  Elmer 
died  testate,  and  by  his  wUl  duly  probated, 
be  devised  the  property  to  bis  widow,  Grace 
Wame,  the  complainant. 

It  Is  admitted  that  complainant,  her  prior 
grantors,  and  those  in  devolntion  of  Interest 
in  succession  to  the  title,  commencing  from 
the  deed  into  Henry  S.  LltUe  on  July  3, 1867, 
have  remained  in  the  nndistorbed,  quiet,  and 
peaceable  enjoyment  of  the  premises,  and 
that  the  Wame  family  have  ramalned  in  the 
-continued,  quiet,  and  peaceable  enjoyment 
thereof  since  the  deed  into  Abraham  and 
Hezekiah  Wame,  dated  April  1,  1871,  and 
have  been  holding  adversely  to  any  devisees 
or  heirs  of  such  devisees  named  in  the  will 
of  William  Bennett  It  is  further  admitted 
that  there  are  several  unknown  heirs  of  the 
4Bons  of  Hendrlckson  W.  Bennett,  Jacobson 
W.  Bennett,  and  Walter  Stires  (or  Hires), 
whose  names  and  addresses  are  unknown, 
who  were  not  parties  to  any  of  the  deeds 
mentioned,  and  who  have  a  vested  interest  io 
the  premises  by  virtue  of  their  heirship.  De- 
fendant contends  that  the  outstanding  In- 
terests of  these  unknown  h^rs  render  com- 
plainant's title  incomplete  and  prevent  her 
from  owning  the  premises  in  fee,  and  that 
these  outstanding  Interests  render  the  title 
onmarketable.  Ck>mplalnajit's  answer  is  that 
t>y  reason  of  the  continuous  and  uninter- 
rupted possession  of  herself  and  her  prede- 
-cessors  in  title  since  April  1,  1871,  her  title 
Is  complete  and  marketable,  and  that  de- 
fendant should  be  required  to  perform  the 
contract  by  paying  the  balance  of  the  pur- 
chase price  and  accepting  a  deed  for  the 
property.  The  question  thus  presented  for 
determination  is  the  validity  of  the  title  ac- 
quired by  complainant  through  adverse  pos- 
session against  the  Interests  of  the  unknown 
belrs  mentioned. 

[1]  From  the  facts  stated,  and  in  the  ab- 
sence of  any  statement  to  the  contrary,  it 
appears  that  complainant  and  those  under 
whom  she  claims  have  been  under  color  of 
title  in  the  open,  continuous,  undisputed, 
peaceable,  and  adverse  possession  of  the 
premises  she  agreed  to  sell  and  convey  to 
defendant,  for  more  than  45  years;  and  no 
claim  is  made  that  her,  or  their,  right  or 
title  thereto  was  ever  questioned,  or  that  the 
unknown  heirs,  or  any  of  them,  were  under 
any  disability  that  would  prevent  them  from 
asserting  their  rights  to,  or  from  claiming 
any  interest  in,  the  premises  to  which  they 
might  be  entitled.  Such  being  the  situa- 
tion, it  must  be  controlled  by  the  rule  of 
Foulke  V.  Bond,  41  N.  J.  Law,  527,  where 
Mr.  Justice  Depue,  speaking  for  the  Court  of 
Errors  and  Appeals,  at  page  545,  observed: 


"The  prindples  on  which  the  doctrine  of  title 
by  adverse  possession  rests  are  well  settled, 
^e  possession  must  be  actual  and  exclusive, 
adverse  and  hostile,  visible  or  notorious,  con- 
tinued and  uninterrupted.  •  •  *  A  party  re- 
lying on  title  derived  from  such  a  source  must 
Srove  possession  in  himself,  or  in  those  un- 
er  whom  he  claims,  of  such  a  character  as  is 
calculated  to  inform  the  true  owner  of  the  na- 
ture and  purpose  of  the  possession  to  which  the 
lands  are  subjected." 

[2]  In  the  absence  of  any  facts  to  the  con- 
trary, and  in  view  of  the  fact  that  complain- 
ant and  her  predecessors  entered  under  color 
of  title  and  openly  and  continuously  used 
and  enjoyed  the  entire  property,  it  must  be 
assumed  that  they  did  so  with  the  intent  to 
claim  adversely  to  the  unknown  heirs,  and 
therefore  the  farther  statement  of  the  law 
by  Justice  Depue  on  this  branch  of  the  sub- 
ject Is  particularly  appropriate  to  the  pres- 
ent case,  for  he  said: 

"That  entry  under  color  of  title  confers  an 
advantage,  in  that  it  operates,  under  some  cir- 
cumstances, as  a  disseisin,  and  determines  the 
quo  animo  with  which  the  entry  was  made. 
Having  color  of  title  is  also  advantageous  to  the 
disseisor  in  givine  character  to  his  possession 
after  entry  made." 

The  rule  of  Foulke  v.  Bond  has  been  re- 
peatedly followed  In  our  courts  to  the  pres- 
ent time;  and,  as  the  facts  presented  show 
title  In  complainant  by  adverse  possession, 
against  the  unknown  heirs  referred  to,  a 
decree  will  be  advised  for  the  specific  per- 
formance of  the  contract 


CM  N.  J.  I*w,  SOT) 

STATE  V.  JEETERSON.    (No.  <».) 

(C!ourt  of  Errors  and  Appeals  of  New  Jersey. 
July  18,  1917.) 

District  and  Pbobkcdtino  Attobnetb  «=»11 
— Mai,feasanc£    in    Offics— Indiotmbnt— 
Condition  PascEDENT. 
(>>nst  art  6,  I  3,  par.  3,  providing  that 
judgments   in   case  of  impeacnment  shall   not 
extend  further  than  to  removal  from  office,  etc., 
but  the  party  convicts  shall  be  liable  to  indict- 
ment etc.,  does  not  require  impeachment  of  the 
Srosecutor  of  the  pleas  of  the  county  as  a  con- 
ition  precedent  to  his  indictment  for  malfea- 
sance in  office. 

Error  to  Supreme  Court 

Matthew  Jefferson  was  convicted  of  mal- 
feasance in  office,  and,  from  a  Judgment  of 
the  Supreme  Court  (88  N.  J.  Law,  447,  97  AtL 
1^)  sustaining  the  conviction,  he  brings  er- 
ror.  Affirmed. 

Howard  L.  Miller,  of  Camden,  and  Clarence 
L.  Cole,  of  Atlantic  C^ty,  for  plalntUt  In  er- 
ror. Joslah  Stryker,  of  Trenton,  and  John  W. 
Wescott,  Atty.  Gen.,  for  the  State. 

GtTMMERE,  C.  J.  The  Judgment  brought 
up  by  the  present  writ  Is  one  affirming  the 
conviction  of  the  plaintiff  in  error  in  the 
Cape  May  quarter  sessions  upon  an  Indict- 
ment charging  him  with  malfeasance  in  of- 
fice. The  office  held  by  him  was  that  of 
prosecutor  of  the  pleas  of  the  county,  and 


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the  Bpedflc  malfeasance  diarged  against  him 
was  the  protection  of  violators  of  the  crimi- 
nal law  and  affording  them  Immunity  from 
punishment  for  a  money  consideration. 

Numerous  assignments  of  error  were  sub- 
mitted to  the  Supreme  Court  and  received 
consideration  by  that  tribunal  in  the  opinion 
promulgated  by  it  The  same  grounds  of  at- 
tack upon  the  conviction  which  were  there 
made  have  been  repeated  before  us.  With  a 
single  exception,  we  are  content  .with  the  dis- 
position made  of  them  by  that  court  and  for 
the  reasons  set  out  in  the  opinion. 

The  only  assignment  which  we  consider 
merits  further  discussion  is  that  directed  at 
the  refusal  of  the  trial  court  to  grant  a  mo- 
tion In  arrest  of  Judgment,  which  was  based 
upon  the  ground  that  the  plaintiff  In  error, 
being  a  state  officer,  could  not  be  legally  In- 
dicted and  tried  for  malfeasance  In  office  an- 
til  after  Impeachment  proceedings  had  been 
instituted  against  him  and  a  judgment  of  con- 
viction rendered  therein.  The  argument  is 
that  this  is  a  right  afforded  to  him  by  article 
6,  {  3,  par.  3,  of  our  Constitution,  which  de- 
clares that: 

"Judgment  in  eases  of  impeachment  shall  not 
extend  farther  than  to  removal  from  ofSce,  and 
to  disqualification  to  hold  and  enjoy  any  office 
of  honor,  profit  or  trust  under  this  state;  but 
the  party  convicted  shall  nevertheless  be  liable 
to  indictment,  trial  and  punishment  according 
to  taw." 

A  consideration  of  the  EMglish  cases  is  not 
helpful  In  solving  the  question  presented,  for 
the  reason  that  the  courts  of  impeachment  of 
this  country,  both  federal  and  state,  although 
modeled  on  the  English  tribunal,  so  far  as 
its  formation  and  methods  of  procedure  are 
concerned,  differ  from  It  fundamentally  in  the 
purpose  of  their  existence  and  the  power  ex- 
ercised by  them.  Stated  specifically,  the  Ju- 
risdiction of  the  English  court  is  purely  crim- 
inal. Inflicting  punishment  of  the  same  kind 
and  in  the  same  measure  as  the  ordinary 
criminal  courts  of  the  kingdom.  For  in- 
stance. Lord  Stafford,  after  an  indictment  for 
high  treason  had  been  presented  against  him, 
and  before  trial  thereon,  was  proceeded 
against  by  articles  of  impeachment  for  the 
same  offense,  was  convicted  by  the  House  of 
Lords,  sentenced  to  death  on  the  conviction 
and  executed.  7  How.  St  Trials,  p.  1297.  So, 
too,  after  the  rebellion  of  1745  some  of  the 
participants  therein  were  indicted  and  con- 
victed in  the  common-law  courts  and  execut- 
ed on  such  convictions,  while  articles  of  im- 
peachment were  exhibited  against  at  least 
one  of  the  other  participants,  and  the  trial 
thereon  resulted  In  his  conviction  and  execu- 
tion. Campbell's  Life  of  Lord  Hardwick,  p. 
106.  The  courts  of  Impeachment  of  this 
country,  on  the  other  hand,  perform  no  puni- 
tive function.  The  single  purpose  of  their 
existence  is  the  protection  of  the  people 
against  public  servants  who  have  betraj-ed 
their  trust  and  have  violated  the  law  which 
they  were  sworn  to  obey.  The  sentence  pro- 
nounced against  the  offender  affects  neither 


his  life,  liberty,  nor  property,  but  merdy 
removes  him  from  the  office  he  has  disgraced 
and  bars  him  from  ever  afterward  holding 
any  office  of  honor,  trust,  or  profit 

From  what  has  been  said  it  is  apparent 
that  the  constitutional  provision  appealed  to 
by  the  plaintiff  in  error  was  not  adopted  from 
any  rule  of  procedure  prevailing  in  England. 
So  far  as  my  examination  has  gone,  it  first 
aroears  in  the  New  Tork  Constitutioii  of 
1777,  and  next  in  that  adopted  by  New  Hamp- 
shire in  17S4.  It  was  written  into  the  feder- 
al Constitution  in  1787,  and  after  that  from 
time  to  time  was  adopted  as  part  of  the  fun- 
damental contract  of  at  least  17  of  our  sister 
states.  Its  purpose  must  be  either  that 
claimed  for  it  on  behalf  of  the  plaintiff  in 
error,  or  else  to  settle  beyond  controversy  the 
claimed  right  of  a  person  c<Hivlcted  by  a 
court  of  impeachment  to  plead  that  convic- 
tion as  a  bar  to  a  trial  on  an  Indictment  for 
the  same  offense  which  brought  about  his  re- 
moval from  office. 

So  far  as  the  researches  of  counsel  and  the 
court  have  gone,  but  one  case  has  l>een  found 
in  .which  a  contention  similar  to  that  advanc- 
ed by  the  plaintiff  in  error  has  been  made, 
viz.  Commonwealth  v.  Rowe,  112  Ky.  482,  00 
8.  W.  29.  In  that  case  the  Supreme  Court  of 
Kentucky,  after  a  full  consideration  of  the 
question,  reached  the  conclusion  that  the  im- 
peachment of  a  commonwealth's  attorney  Is 
not  a  condition  precedent  to  his  indictment 
for  malfeasance  in  office  and  punishment 
thereunder.  The  opinion  Is  a  carefully  oon- 
sidered  one,  and  the  conclusion  reached  seems 
to  be  fully  supported  by  the  logic  of  the  argu- 
ment set  out  In  it  But,  independent  of  the 
reasoning  of  the  case  cited,  we  are  entirely 
satisfied  that  the  conclusion  of  the  Kentucky 
court  is  the  correct  one.  If  it  be  true  that 
the  effect  of  the  constitutional  provision  is  to 
stay  proceedings  in  the  criminal  courts  nntll 
after  a  conviction  in  the  court  of  Impeach- 
ment, then  punishment  for  a  crime  in  sncb  a 
case  is  made  to  depend  upon  whether  or  not 
the  House  of  Assembly  will  see  fit  to  pre- 
sent articles  of  impeachment  against  the  of- 
fending officeholders.  This  they  may  or  m«y 
not  do,  as  the  Judgment  of  its  meml>ers  may 
dictate.  It  may  be  that  the  offender's  term 
of  office  will  have  expired  during  the  recess 
of  the  Legislature  or  will  expire  almost  Im- 
mediately after  its  convening,  and  that  Im- 
peachment proceedings  therefore  will  be  tn- 
advlsnble.  Other  reasons  for  nonaction,  by 
the  House  of  Assembly  will  readily  suggest 
themselves.  That  any  such  possible  Immunity 
from  punishment  was  intended  to  be  confer- 
red upon  the  betrayers  of  public  trust  by  the 
framers  of  this  provision  of  the  Constitution 
cannot  be  conceded  and  never  has  been  so  un- 
derstood by  our  people.  The  history  of  our 
own  state  is  a  demonstration  of  this  fact. 
From  1784,  when  Peter  Hopkins,  a  Justice  of 
the  pence,  was  impeached  by  the  House  of 
Assembly,  down  to  the  present  time,    tliere 


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AHRENS  ▼.  KELIiT 


671 


have  been  Jnst  fonr  impeachment  trials  in 
New  Jersey.  Certainly  no  one  will  suppose 
that  during  this  period  of  133  years  tbe  four 
persons  thus  proceeded  against  constitute  all 
of  the  officeholders  imder  the  state  govem- 
ment  who  have  been  untrue  to  the  trust  im- 
posed in  them.  In  fact,  the  very  slightest 
examination  of  onr  official  reports  will  dem- 
onstrate the  contrary. 

The  history  of  the  federal  court  of  impeach' 
ment  is  similar.  The  records  of  the  Senate 
show  that  from  the  adoption  of  the  Consti- 
tution in  1787  until  now  articles  of  Impeach- 
moit  have  been  presented  against  one  Presi- 
dent, one  United  States  Senator,  one  member 
of  the  cabinet,  and  six  members  of  the  judi- 
ciary. All  other  dvll  officers  serving  under 
the  federal  government  who  have  been  guilty 
of  criminal  conduct  while  in  office  have  been 
dealt  with  by  the  ordinary  tribunals  of  Jus- 
tice. 

The  records  of  our  sister  states  have  not 
been  available  to  us  for  Inspection,  but  it  is 
more  than  probable  that  they  will  disclose  a 
similar  condition ;  for,  as  was  said  by.  Prof. 
Theodore  W.  Dwlgtat  in  an  article  on  "Trial 
by  Impeachment"  (American  Law  Beglster, 
voL  6,  K  S.  p.  257):  "This  mode  of  trial  is 
rarely  exercised  and  practically  dormant" 

It  has  been  suggested,  rather  than  argued, 
that,  unless  the  Indictment  of  a  state  officer 
la  postponed  until  the  termination  of  im- 
peachment proceedings,  the  interests  of  the 
state  will  suffer  by  its  deprivation  of  the  serv- 
ices of  the  officer  while  the  title  to  the'  office 
remains  in  him.  It  is  suggested  when  ai^lied 
to  the  present  case  it  would  seem  to  savor  of 
grim  humor,  if  it  were  not  for  the  seriousness 
of  the  matter.  When  it  is  remembered  that 
the  spedflc  charge  upon  which  the  plaintiff 
In  error  was  convicted  was  the  shielding  of 
▼iolators  of  the  criminal  law  from  punish- 
ment for  a  pecuniary  consideration,  the  sug- 
gestion that  by  his  conviction  and  sentence 
the  state  la  being  "deprived  of  his  services" 
l8  very  wide  of  the  mark ;  It  would  be  much 
more  accurate  to  say  that  by  it  the  state  is 
being  protected  against  the  further  prostitu- 
tion of  his  office. 

We  conclude  that  the  refusal  of  the  motion 
in  arrest  of  judgment  was  proper,  and  that 
on  the  whole  case  the  conviction  should  be 
affirmed. 

(SS  N.  J.  Eq.  lU) 

AHKEINS  v.  KEIyliY  et  al.    (No.  41/334.) 

(Court  of  Chancery  of  New  Jersey,     July  31, 
1017.) 

1.  USDBT  «=s>130— FOBECLOSURE  OT  MORTOAOB 
— DEFEHSB— AVAILABILITT. 

Where  a  son  executed  a  second  mortgage, 
and  his  mother  signed  the  bond  accompanying 
it,  and  the  property  was  conveyed  to  her,  sub- 
ject to  the  mortgaRe  to  secure  other  advances, 
on  foreclosure,  she  could  set  up  defense  of  usury. 

2.  usuby   ®=>55  —  conteact   by   aoent  — 
Knowledge  of  Principal. 

Although  the  illegal  bonus  was  paid  to  an- 
other, if  it  was  paid  pursuant  to  toe  terms  of 


contract  of  loan  with  the  knowledge  of  the  mort- 
gagee, the  mortgage  will  be  declared  usurious. 

3.  UsuKY  «=>117  —  Contract  by  Agent  — 
Knowledge  of  Pbincipai/— Evidence— S0t- 
ficiency. 
In  a  bill  to  foreclose  a  mortgage,  evidence 
held  sufficient  to  show  that  the  mortgagee,  al- 
though he  did  not  negotiate  for  the  loan,  knew 
that  the  loan  was  usurious. 

Bill  by  Augusta  N.  Ahrens  against  Mary 
Kelly  and  others.     Decree  for  complainant. 

Eunyon  &  Autcnrelth,  of  Jersey  City,  for 
complainant  Randolph  Perkins,  of  Jersey 
City,  for  defendants. 

LEWIS,  V.  0.  The  bill  in  this  case  is  filed 
to  foreclose  a  mortgage  made  by  the  defend- 
ant Patrick  J.  Kane  and  Esther  Kane,  his 
wife,  to  William  G.  Ahrens.  The  instrument 
bears  'date  the  7tta  day  of  March,  1913,  and 
covers  property  at  the  comer  of  Bergen  and 
Bramhall  avenues,  Jersey  City.  The  mort- 
gage was  for  the  sum  of  $10,000,  and  was 
second  to  one  held  by  the  New  Jersey  Title 
Guarantee  &  Trust  Company  for  $23,000. 
Kane  used  the  money  (i.  e.,  the  $8,000  of  the 
$10,000  paid  on  the  mortgage)  In  erecting  an 
apartment  house,  and  also  secured  other  sums 
from  his  mother,  Mary  Kelly,  who  executed 
the  bond  accompanying  the  mortgage.  On 
May  21,  1A13,  he  conveyed  the  property  to  his 
mother,  and  they  both  testify  that  at  the 
time  of  this  conveyance  there  was  an  agree- 
ment between  them  that  the  mother  would 
turn  back  the  property  to  her  son  upon  being 
reimbursed. 

[1]  An  answer  and  counterclaim  were  filed, 
alleging  that  the  transaction  was  nsurions; 
but  it  was  urged  by  the  complainant  that 
even  if  this  were  the  case,  under  the  rule 
laid  down  in  Lee  v.  Stiger,  80  N.  J.  Eq.  610, 
Scull  V.  Idler,  79  N.  J.  Bq.  466,  81  Atl.  746, 
and  other  cases,  Mary  Kelly,  the  defendant 
conld  not  be  allowed  to  set  up  usury  against 
such  mortgage.  I  am  not  Inclined  to  this 
view  of  the  matter  under  consideration.  This 
is  not  the  case  of  affording  to  a  "mere  ad- 
venturer, who  may  happen  to  slip  into  the 
seat  of  the  borrower,  a  right  to  speculate  on 
a  violation  of  law  which  has  done  him  no 
harm,"  as  was  said  in  Lee  v.  Stiger.  That 
Mrs.  Kelly  took  the  conveyance  expressly  sub- 
ject to  the  mortgage  Is  a  mere  technical  de- 
fense. Mrs.  Kelly  signed  the  bond,  and  is 
liable  for  deficiency  Judgment  thereon.  She 
really  took  the  deed  as  security  for  her 
loan,  and  nn'der  the  view  expressed  in  Tms- 
dell  V.  Dowden,  47  N.  J.  Eq.  386,  20  Atl.  972, 
is  entitled  to  defend.  Kane,  the  son  and 
mortgagor,  is  also  a  party  to  this  suit  and 
he  certainly  has,  under  Andrews  t.  Stelle, 
22  N.  J.  Eq.  478,  this  right 

£2,  S]  It  was  further  contended  that  in 
case  the  transaction  was  tainted  with  usury, 
Albaneslus,  who  negotiated  the  loan,  was  the 
agent  of  Kane,  and  not  of  Ahrens,  the  com- 
plainant, and  that  he  (Ahrens)  knew  nothing 


AssFoT  other  oaMi  u«  swose  topio  and  KBT-MUUBER  In  all  K«r-Numb*red  DIgesU  and  Indexei 


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101  ATIiAMTIO  REPORTER 


(N.J. 


about  the  arrangement  between  Kane  and 
Albanesius,  and  that,  If  the  former  had  any 
remedy,  It  was  by  suit  against  the  latter  for 
IHegal  brokerage.  The  facts  developed  at  the 
hearing  satisfied  me  that  the  complainant 
Ahrens,  knew  all  about  the  Kane  transaction 
with  Albanesius,  and  that  be  must  be  held 
accountable  within  the  rule  laid  down  by 
Vice  Caiancellor  Van  Fleet  In  Borcherllng  v. 
Trefz,  40  N.  J.  Eq.  502,  2  Atl.  369,  that  "to 
taint  a  contract  with  usury  it  is  not  neces^ry 
that  the  Illegal  interest  or  bonus  shall  have 
been  taken  by  the  lender  himself;  but  if  it 
be  shown  that  an  illegal  consideration  was 
paid  to  some  other  person  than  the  lender, 
pursuant  to  the  terms  of  the  contract  of  loan, 
with  the  knowledge  of  the  lender,  the  con- 
tract must  be  declared  usurious."  This  view 
has  been  numerously  followed.  Kane  says 
that  Ahrens  was  present  at  the  time  of  the 
first  payment;  that  he  saw  the  two  checks 
that  were  left  lying  on  the  desk  and  the  one 
check  that  was  taken.  Ahrens  did  not  go  on 
the  stand  and  deny  this.  The  testimony  rel- 
ative to  his  exaction  of  a  bonus  from  the 
owner  for  an  extension  of  the  mortgage,  and 
his  demand  for  another  that  he  did  not  get, 
gives  us  some  idea  as  to  his  disposition  re- 
garding transactions  of  this  kind.  Moreover, 
it  does  not  seem  probable  that  he  would  have 
loaned  this  considerable  sum  of  money  on  a 
aecond  mortgage  to  a  person  of  Kane's  finan- 
cial standing,  merely  to  secure  interest,  with- 
out a  thorough  understanding.  He  Is  too 
shrewd  a  business  man  to  do  this. 

The  division  of  the  first  payment  at  $4,000 
Into  three  part»— $2,000,  $1,600,  and  $500— 
and  the  giving  of  the  three  checks  is  sugges- 
tive. Kane's  story  is  that  Ahrens  produced 
the  tliree  checks.  He  says  that  Ahrens  had 
already  told  him  he  would  have  to  pay  a 
bonus  of  $2,000  to  get  the  $10,000.  His  story 
Is  that  the  checks  were  laid  upon  the  table 
in  Albanesius'  office ;  that  he  indorsed  them 
there,  and  left  the  $1,600  check  and  the  $500 
check  lying  on  the  desk  in  the  presence  of 
Albanesius  and  Ahrens.  The  $2,000  check  he 
took  and  deposited  In  the  New  Jersey  Title 
Guarantee  &  Trust  Ck>mpany,  as  la  shown  by 
his  passbook.  This  story  appears  to  me  to 
be  a  truthful  narration  of  events  at  the  out- 
set of  the  transaction.  Can  it  be  doubted 
that  Ahrens  saw  the  indorsement  of  Albane- 
sius on  the  two  checks,  one  for  $500  and  the 
other  for  $1,500?  Albanesius  denies  Kane's 
story.  But,  as  I  said  before,  Ahrens  did  not 
do  this.  Albanesius  says  that  the  arrange- 
ments with  Kane  were  all  made  before 
Ahrens  was  brought  in.  Albanesius  says 
tliat  he  had  many  financial  transactions  with 
Kane ;  that  Kane  gave  him  a  note  of  $1,500, 
which  he  held  at  the  time  of  the  first  pay- 
ment on  the  Ahrens  mortgage;  that  the 
check  of  $1,500  was  taken  by  him  in  payment 
of  this  note,  and  that  the  $500  check  was  for 
securing  the  loan  for  Kane,  which,  of  course, 
Is  $350  beyond  what  the  law  allows  for  brok* 


erage.  Albanesius  also  says  that  Kane's  in- 
debtedness arose  by  cash  money  loan  trans- 
actions. He  was  subpoenaed  to  produce  all 
his  books,  papers,  and  checks  of  every  de- 
scription pertaining  to  the  transaction;  but 
he  did  not  produce  any.  Subsequently,  while 
on  the  witness  stand,  upon  his  attention  be- 
ing directed  to  the  matter,  Albanesius  pro- 
duced a  note  of  $1,500,  signed  by  Kane, 
which  he  says  he  has  held  since  the  time  of 
the  first  payment,  although  he  alleges  It  was 
paid  by  Kane  with  the  $1,600  check  he  re- 
ceived on  the  first  paymoit.  Kane  says  that 
at  the  time  of  the  first  payment  Albanesius 
asked  him  to  sign  the  $1,500  note  so  as  to 
cover  up  the  transaction,  and  that  he  owed 
no  money  whatever  to  him;  that  he  never 
borrowed  a  cent  from  him,  and  never  liad 
any  dealings  with  respect  to  money.  From 
the  evidence  before  me.  It  is  quite  apparent 
that  it  would  be  hard  for  Albanesius  to 
prove  the  consideration  of  this  note  for  $1,- 
600. 

It  la  difficult  for  me  to  disconnect  Albane- 
slu!)  and  Ahrens  in  this  transaction.  They 
were  neighbors  and  friends,  and  had  been 
for  years;  and  the  testimony  is  that  they 
called  each  other  "Dick"  and  "BUI,"  and 
that  they  had  several  financial  transactions 
together,  and  at  the  time  of  the  hearing 
Ahrens  was  renting  and  living  In  a  house  be- 
longing to  Albanesius,  and  Ahrens  has  a 
mortgage  on  Albanesius'  property  for  an 
amount  in  the  neighborhood  of  $^,000.  It 
is  inconceivable  that  he  did  not  discuss  with 
his  friend  the  nature  of  the  transaction  that 
be  had  on  hand  with  Kane.  It  is  also  ob- 
servable, from  the  testimony  of  Ahrens,  Rita 
Smith,  and  the  complainant,  that  Ahrens 
had  every  intention  of  exacting  from  Mrs. 
Kelly  all  he  could  get  In  the  way  of  bonuses 
for  extensions.  He  admits  that  he  got  $400 
of  the  $500  check  which  was  paid  for  the 
renewal  of  the  mortgage  and  there  Is  no 
denial  that  when  the  mortgage  fell  due  an- 
other bonus  of  $500  was  demanded.  We 
have  a  similar  situation  throughout  the  en- 
tire lite  of  the  mortgage.  Miss  Smith  was  a 
mere  dummy  In  the  transaction.  On  Sep- 
tember 8,  1914,  when  a  half  year's  interest 
was  paid,  Ahrens  told  Mr&  Kelly  that  be 
wanted  the  principal.  She  urged  him  to  let 
the  mortgage  stand  and  he  said  that  he  had 
a  friend  who  might  take  It,  providing  the 
bonus  of  $500  was  paid.  On  September  14tlk 
Mrs.  Kelly  paid  the  bonus.  As  before  stated, 
Ahrens  admits  that  he  got  $400  of  it  On 
that  day  Ahrens  executed  an  assignment  ot 
the  mortgage  to  Rita  B.  Smith,  which  was 
recorded.  Rita  B.  Smith  Immediately  exe- 
cuted an  assignment  to  Ahrens'  sister,  Au- 
gusta N.  Ahrens,  although  this  assigament 
has  never  been  recorded.  Ahrens'  testimony 
Is  that  his  sister  had  $2,000  Interest  In  the 
mortgage  from  its  inception.  Mrs.  Kelly 
paid  Interest  on  March  7,  1915,  and  Septem- 
ber 7,  1915,  to  Miss  Smith.    Wh«i  the  last 


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SUMMIT  SILK  CO.  v.  FIDELITT  TKUST  CO. 


573 


interest  was  paid,  the  mortgage  became  due, 
and  Mrs.  Kelly  asked  Miss  Smith  to  grant 
her  a  further  extension  but  Miss  Smith  re- 
fused. On  October  30;  1915,  she  sent  the 
following  letter  to  Mrs.  Kelly: 

"Dear  Madam:  I  had  to  have  aome  money, 
and  have  sold  the  mortgage  I  held  on  yonr  Ber- 

Sen  avenue  and  Bramhall  avenue  property  to 
liss  A.  N.  Ahrens. 

"Respectfully,  Bita  B.  Smith." 

Miss  Smith's  evidence,  and  her  attitude 
while  on  the  witness  stand,  satisfactorily 
shows  that  she  had  absolutely  no  interest 
whatever  in  the  mortgage^  but  was  merely 
acting  for  Ahrena  She  was  in  ignorance  of 
the  entire  matter  and  did  what  she  was  told 
to  do. 

On  the  brief  It  is  urged  by  the  complainant 
that  the  answer  is  defective.  The  counter- 
claim charges  usury,  and  the  particulars  of 
the  transaction  are  set  out  in  the  answer. 
My  recollection  is  that  the  solicitor  of  the 
defendants  made  application  to  amend  the 
answer,  so  that  it  might  conform  with  the 
proofs  and  meet  the  views  expressed  by  Vice 
Chancellor  Emery  in  Kase  v.  Bennett,  61  K 
J.  E9q.  97,  33  AtL  248,  and  that  leave  to  do 
this  was  granted.  In  this  case  the  usury 
diarged  appears  by  the  facts  as  well  as  by 
the  conclusions  of  law  from  the  facts.  Dur- 
ant  V.  Banta,  27  N.  J.  Law,  624.  The  usury 
Is  proven,  not  left  to  conjecture.  New  Jer- 
sey Patent  Tanning  Oo.  v.  Turner,  14  N.  J. 
Eq.  326.  I  cannot  fairly  and  reasonably  in- 
fer tliat  this  was  not  a  usurious  transaction. 
Gillette  V.  Ballard,  25  N.  J.  Eq.  491,  affirmed 
27  N.  J.  Eq.  489. 

The  complainant  in  this  case  Is  entitled  to 
a  decree  for  the  amount  of  the  principal  of 
tills  mortgage,  less  the  usurious  charges  at 
the  time  of  its  inception.  The  bonuses  paid 
on  the  renewal  September  14,  1914,  must  be 
applied  on  the  principal. 

(BS  N.  J.  Dq.  tu) 

BTJMMIT  SILK  CO.  v.  FIDBLITX  TRUST 

CO.  OF  BALTIMORE,  MD.,  et  aL 

(No.  37/111.) 

(Court  of  Chancery  of  New  Jersey.    July  27, 
1917.) 

CoKPoRATioRS   «=>432<2)  —  Contracts  —  Pbk- 

SUMPnON. 

A  contract  made  in  the  name  of  a  corpora- 
tion by  its  president  in  the  usual  course  of  bnsi- 
nees,  which  its  directors  can  aathorize  and  make, 
or  ratify,  is  presumed  binding  on  it,  till  it  is 
clearly  shown  it  was  not  authorized  or  ratified, 
especially  where  acquiesced  in  till  the  other 
party  has  become  insane. 

Suit  by  the  Summit  Silk  Company  against 
tbe  Fidelity  Trust  Company  of  Baltimore^ 
Md.,  guardian  of  Emily  B.  De  Forest,  a  lu- 
natic, and  another.  Heard  on  pleadings  and 
proof.    Decree  for  defendants. 

McDermott  ft  Enright,  of  Jersey  City,  for 
complainant  Vredenburgh,  Wall  &  Carey,  of 
Jersey  City,  and  Charles  L.  Eingsley,  of 
New  York  City,  for  defendants. 


LEWIS,  V.  C.  This  suit  Is  brought  to  re- 
strain the  defendants  from  prosecuting  an 
action  at  law,  in  ejectment,  against  the  Sum- 
mit Silk  Company  regarding  certain  premises 
at  Summit,  N.  J.,  in  which  Emily  De  Forest 
has  the  legal  title;  the  complainant  claiming 
to  be  tbe  equitable  owner,  alleging  that 
EmUy  is  a  mere  trustee. 

Etelly  and  Harriet  De  Forest,  sisters,  were 
married  to  two  brothers,  one  of  whom  was 
named  Othneil  De  Forest  and  the  other  was 
named  William  H.  De  Forest,  Jr.  In  August, 
1892,  the  Summit  Silk  Manufacturing  Com- 
pany was  organized  as  a  corporation  of  this 
state.  It  was  a  close  corporation,  and  the 
objects  stated  in  the  certificate  of  incorpora- 
tion were  the  manufactui-e  and  sale  of  silk 
and  silken  goods,  to  buy  lands  and  to  erect 
thereon  buildings,  machinery,  etc.  The  incor- 
porators were  Othneli  De  Forest,  John  Night- 
ingale, and  William  H.  De  Forest,  Jr.,  and 
shortly  after  the  organization  Othneil  De 
Forest,  William  H.  De  Forest,  Jr.,  and  Har- 
riet De  Forest  became  the  directors.  Oth- 
neil De  Forest  was  elected  president,  and 
William  H.  De  Forest,  Jr.,  the  secretary  and 
treasurer.  Mrs.  Emily  E.  De  Forest  was 
the  principal  owner  of  the  stock.  The  fac- 
tory was  built  on  a  plot  of  land  consisting 
of  about  eight  acres;  the  fSctory  taking  up 
about  two  acres,  and  leaving  a  little  over  six 
acres  vacant 

In  1896  the  Summit  Silk  Manufacturing 
Company  wished  to  have  some  houses  erect- 
ed on  this  plot  for  its  employte;  but  as  it 
did  not  have  the  funds  with  which  to  erect 
them,  the  president  applied  to  tbe  Summit 
Building  &  Loan  Association  for  a  loan.  He 
found  out  from  that  association  that  a  cor- 
poration could  not  become  a  member  of  the 
association,  and  he  was,  therefore,  unable 
to  borrow  any  money  from  that  association. 
Thereupon,  in  March,  1895,  Emily  E.  De  For- 
est became  a  shareholder  to  the  extent  of  85 
shares  in  the  afore-mentioned  association. 
Her  dues  for  March,  April,  and  May,  1896, 
were  paid  oa  June  13th  of  that  year,  and 
were  charged  to  her  account  on  the  books 
of  tbe  Silk  Company.  On  July  23,  1895,  the 
Silk  Company  duly  made,  executed,  and  de- 
livered to  her  the  deed,  dated  July  10,  1895. 
The  deed  recites  the  payment  of  the  con- 
sideration of  $2,000.  This  deed  Is  Emily  E. 
De  Forest's  muniment  of  title,  and  her  bond 
of  $14,000  was  given  to  the  Summit  Building 
ft  Loan  Association,  together  with  the  se- 
curity of  this  title,  and  the  association  then 
made  her  a  loan  of  $7,000,  with  which  to 
erect  five  double  tenement  houses  on  the 
piece  of  ground  which  the  Silk  Company  had 
conveyed  to  her. 

On  the  land  conveyed  to  Emily  the  five 
double  houses  were  erected,  and  the  pay- 
ments to  the  contractors  were  made  by 
checks  of  the  Summit  Building  &  Loan  As- 
sociation, drawn  at  the  order  of  said  Emily 


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101  ATLANriO  REPOBTBR 


(N.J. 


De  Forest  Fire  Insurance  on  the  houses 
was  placed  In  the  name  of  Emily  E.  De  For- 
est ;  the  houses  were  rented  to  the  employes 
in  the  factory  of  the  Silk  Company,  and  the 
rents  were  collected  by  the  superintendent 
or  a  clerk  in  the  employ  of  the  Silk  Com- 
pany. As  the  rents  were  collected,  they  were 
put  in  the  bank  to  the  credit  of  the  Silk 
Company,  and  its  check  was  drawn  to  the 
order  of  the  Summit  Building  &  Loan  As- 
sociation at  the  rate  of  $75.25  per  month. 
Taxes,  Insurance,  and  repairs  were  also  paid 
out  of  the  rents. 

In  the  course  of  about  12  years,  the  35 
shares  of  the  Summit  Building  ft  Loan  As- 
sociation matured,  and  in  the  first  part  of 
Febmaiy,  1907,  the  Building  *  Loan  As- 
sodatlon  sent  its  dieck  for  $7,000  to  Emily 
B.  De  Forest,  and  the  mortgage  was  can- 
celed, being  discharged  of  record  July  18, 
190&  From  the  time  of  the  maturity  of  the 
shares  in  the  Building  ft  Tx>an  Association 
until  May,  1910,  the  rents  from  these  houses 
were  collected  by  clerks  and  officers  of  both 
the  Summit  Silk  Manufacturing  Company 
and  its  successor,  the  Summit  Silk  Company, 
the  present  complainant,  and  were  paid  over 
to  Emily  B.  De  Forest.  During  this  period 
taxes,  insurance,  and  repairs  on  these  houses 
were  paid  by  Emily  B.  De  Forest,  either  per- 
sonally or  through  others  acting  in  her  t>e- 
hall 

In  January,  1907,  Elrero  Godone,  P.  J. 
Ferrara,  and  Emily  E.  De  Forest  were  elect- 
ed directors,  and  Mr.  Godone  was  made  presi- 
dent, and  Mr.  Ferrara  secretary  and  treas- 
urer. The  Silk  Company  became  embar- 
rassed, and  arrangements  were  made  to  or- 
ganize a  new  company  and  give  extensions 
to  the  new  company,  which  was  taking  over 
all  the  liabilities  and  assets  of  the  old  com- 
pany on  two  years'  time.  The  result  was 
the  organization  of  the  Summit  Silk  Com- 
pany as  a  corporation  to  take  over  the  en- 
tire property  and  assets  of  the  old  company, 
with  proper  deeds  and  other  instruments  of 
conveyance  thereof,  and  the  new  company  to 
assume  the  payment  of  all  Indebtedness.  The 
meeting  at  which  the  transfer  was  organized 
was  held  on  February  20,  1908.  The  pro- 
ceedings are  recorded  in  the  minutes  on 
several  pages.  Emily  E.  De  Forest  was  pres- 
ent by  proxy;  she  also  signed  a  waiver  of 
notice  of  the  time,  place,  and  objects  of  the 
meeting.  Following  the  meeting  of  Febru- 
ary 20,  1908,  and  in  pursuance  thereof,  deeds 
and  a  bill  of  sale  were  executed  to  transfer 
all  the  property  of  the  Summit  Silk  Manu- 
facturing Company  to  the  Summit  Silk  Com- 
pany. The  principal  deed  is  dated  February 
20,  1008,  and  Includes  the  lands  in  dispute; 
that  is  to  say,  it  included  the  property  con- 
veyed to  the  Summit  Silk  Manufacturing 
Cktmpany  by  Harriet  De  Forest  and  husband, 
excepting  therefrom  only  the  sis  lots  which 
were  previously  conveyed  to  Harriet  De  For- 
est and  which  are  not  in  dispute.  On  Feb- 
ruary 20,  1908,  the  Summit  Silk  Manufac- 


turing Company  executed  a  bill  of  sale,  by 
which  It  sold  and  transferred  to  the  Summit 
Silk  Company  "all  its  property  wheresoever 
situate,  including  its  machinery,  tools,  and 
fixtures  located  in  its  factory  in  the  city  of 
Summit,  New  Jersey,  and  elsewhere,  indnd- 
ing  office  furnishings,  patent  rights,  patents, 
good  will,  merchandise,  accounts,  bills,  notes, 
money  and  all  other  assets." 

These  instruments  establish  that  the  pur- 
pose of  the  Summit  Silk  Manufacturing  Com- 
pany was  to  transfer  to  the  Summit  Silk 
Company  all  its  property  of  every  kind  and 
character.  It  becomes  Important,  therefore, 
to  ascertain  whether  the  lands  and  houses 
In  dispute  were,  in  equity,  the  property  of 
the  Summit  Silk  Manufacturing  Company, 
which  made  a  deed  of  all  its  property  to  the 
Summit  Silk  Company. 

On  October  14, 1895,  the  old  company  duly 
made,  executed,  and  delivered  to  Harriet 
De  Forest  its  deed  for  certain  of 'its  prop- 
erty adjacent  to  that  conveyed  to  Emily  by 
the  deed  of  July  23,  1895,  and  upon  which 
were  erected  three  double  tenement  houses 
similar  to  those  erected  by  Emily  upon  her 
land.  On  October  18,  1910,  Emily  was  judi- 
cially adjudged  a  lunatic  by  the  circuit  court 
of  the  city  of  Baltimore,  Md.,  and  the  Fi- 
delity Trust  Company  of  Baltimore  was  ap- 
pointed her  guardian,  while  she  was  then 
located  at  Baltimore,  and  has  also  been  ap- 
pointed guardian  of  her  property  and  estate 
in  New  Jersey  by  the  Chancellor. 

On  December  12,  1912,  an  action  was  com- 
menced in  the  New  Jersey  Supreme  Court  by 
the  jfuardian  to  eject  the  new  company  from 
the  bouses  and  premises  at  Sumndt,  and  on 
October  20,  1913,  the  present  bill  to  restrain 
the  ejectment  suit  was  filed  for  the  purpose 
of  obtaining  the  benefit  of  certain  equitable 
defenses.  Those  defenses  in  brief  are  as 
follows :  First,  that  there  was  no  considera- 
tion for  the  deed  made  by  the  Summit  Silk 
Manufacturing  Company  to  Emily  Do  Forest, 
under  which  she  claimed  a  right  to  the  pos- 
session of  the  land;  second,  that  the  deed 
was  executed  without  the  authority  of  the 
company;  third,  that  she  had  assented  to 
a  sale  of  the  same  property  to  the  Summit 
Silk  Company  by  the  Summit  Silk  Manu- 
facturing Company  after  her  deed  had  been 
recorded,  and  was  estopped  to  question  tbe 
title  of  the  Summit  Silk  Company;  fourtli, 
that  she  held  the  title  only  In  trust  for  tbe 
Silk  Company,  which,  it  Is  alleged,  had  fur- 
nished the  money  for  the  purchase  of  the 
land  and  the  construction  of  the  balldlngs 
thereon.  Mre.  De  Forest  contends  that  all 
these  defenses  are  available  at  law,  except 
the  one  which  seeks  to  establish  a  trust. 

The  minutes  of  the  stockholders  and  di- 
rectors are  very  meager,  and  do  not  disclose 
that  there  was  any  authority  given  by  the 
stockholders  or  directors  to  convey  the  prop- 
erty in  question  to  Mrs.  Emily  De  Forest, 
or,  for  that  matter,  to  Mrs.  Harriet  I>e 
Forest— Harriet  De  Forest's  situation  in  re- 


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EDOSTER  y.  BUGSTER 


575 


gard  to  tbe  land  which  has  been  deeded  to 
her  by  the  old  company  being  precisely  the 
same  as  Emily's  with  the  exception  that, 
when  the  old  company  turned  over  Its  pr(^ 
erty  to  the  new  company,  the  land  hereto- 
fore deeded  to  Harriet  was  excepted,  no 
mention  being  made  of  the  deed  to  Emily, 
nils  is  a  peculiar  fact,  and  may  or  may  not 
be  significant  as  to  whether  she  was  the  true 
owner  of  the  lands  in  question. 

It  Is  undoubtedly  true,  however,  that  when 
a  contract  is  made  In  the  name  of  the  cor- 
poration by  the  president  in  tbe  usual  course 
of  business,  which  the  directors  have  the 
power  to  authorize  and  to  make,  or  to  ratify 
after  It  Is  made,  the  presumption  is  that  the 
contract  is  binding  on  the  corporation,  un- 
til It  is  shown  that  the  same  was  not  author- 
ized or  ratified.  Paul  Gerll,  who  had  been  the 
chief  creditor  of  the  old  company,  and  who 
had  stepped  In  as  the  controlling  factor  of  the 
new  company,  knew  that  these  rents  were  be- 
ing collected  by  the  clerks  or  other  employes 
of  the  new  company,  and  he  knew  that  they 
were  being  transmitted  to  Mrs.  Emily  De 
Forest;  in  fact,  the  evidence  shows  that  he 
directed  It  to  be  done,  and  upon  the  clos- 
ing of  the  account  of  Mrs.  Emily  De  Forest 
and  of  her  sister,  Mrs.'  Harriet  De  Forest, 
he  drew  and  signed  the  checks  to  those  two 
ladles  for  the  proportionate  amounts  due 
them,    respectively. 

About  the  year  1910,  when  Mrs.  Emily  De 
Forest  had  become  mentally  Incompetent  and 
was  no  longer  able  to  take  care  of  herself 
and  her  affairs,  Paul  Oerli  suddenly  ceased 
renaitting  the  rents   from  these  houses  to 
Mrs.  Emily  De  Forest.    His  explanation  of 
tbls  action  on  the  witness  stand  was  that  he 
had  felt  sorry  for  the  De  Forests  in  their 
financial  reverses,  and  that  after  the  death 
of  Mrs.  Emily  De  Forest's  husband  he  had 
contributed  these  rents  to  her  support  as  a 
matter  of  charity,  but  that  when  his  own  Silk 
Company  had  dWBculty  in  meeting  expens- 
es he  felt  obliged  to  cut  off  his  philanthropic 
contribution.     If  this  were  true.  It  would 
certainly  stamp  Mr.  Oerli  as  an  extraordi- 
narily generous  man,  considering  that  Mrs. 
Emily  De  Forest  was  nothing  to  him.    It  is 
very  difficult  to  get  at  the  facts  in  the  case, 
as  both  Mr.  Othnell  De  Forest  and  his  broth- 
er, William  H.  De  Forest,  Jr.,  are  dead,  and 
the  lips  of  Mrs.  IJmlly  De  Forest  are  sealed 
through  Insanity.    We  cannot  get  her  story ; 
bnt  I  am  satisfied  that  the  transfer  of  the 
land  to  Mrs.  Emily  De  Forest  by  the  old 
company  was  for  an  adequate  monetary  con- 
sideration ;  second,  that  the  deed  to  her  was 
In  due  form  of  law  and  unassailable  in  this 
proceeding,  with   no  sufficient  testimony  to 
undermine  Its,  at  least,  prima  fade  validity ; 
third,  that  the  credit  of  Emily  De  Forest 
was  pledged  to  obtain  the  moneys  that  were 
nsed  In  the  construction  of  the  houses,  and 
that  her  obligation  was  paid  off  by  the  rents 


from  those  houses,  and  that  no  money  of 
the  Silk  Company  went  into  those  houses. 
It  Is  apparent  that  neither  Mrs.  Emily  De 
Forest  nor  Mrs.  Harriet  De  Forest  desired 
the  burden  of  handling  the  rents,  etc.,  when 
they  had  husbands  to  do  it  for  them.  Wo- 
men, very  frequently,  do  not  care  to  assume 
these  burdens.  I  ttilnk  this  fully  accounts 
tor  the  facts  already  mentioned.  I  am  quite 
satisfied  that  the  whole  business  was  done 
In  a  perfectly  natural  manner  under  all  the 
circumstances  of  the  case;  and  It  must  be 
remembered  that  the  burden  of  establishing 
the  various  contentions  of  the  complainant 
Is  upon  the  complainant,  and  must  be  sus- 
tained by  the  clearest  and  most  convincing 
proof,  more  particularly  because  one  of  the 
circumstances  attendant  upon  the  dalm  of 
the  Silk  Company  is  that  It  was  asserted 
only  after  a  blight  had  fallen  upon  the 
mind  of  Mrs.  Emily  De  Forest,  and  after 
it  had  acquiesced  in  her  apparent  right  for 
about  two  years,  and  also  because  of  the 
fact  that  Mrs.  Emily  De  Forest  Is  unable  to 
give  her  testimony  in  this  proceeding.  If 
there  be  any  doubt  whatever,  it  must  be 
resolved  In  ftivor  of  the  Incompetent  woman. 

The  real  question  before  the  court  Is 
whether  Emily  is  a  trustee  for  the  Silk 
Company,  and  as  I  find  that  there  is  no 
resulting  trust,  but  that  Emily  is  the  owner 
of  both  the  legal  ajad  equitable  title  In 
the  premises  In  question,  that  disposes  of 
the  case. 

I  shall  advise  a  decree  In  accordance  with 
these  views. 


(8S  N.  J.  Eiq.  73) 
EUOSTER  V.   EUGSTER.     (No.  41/284.) 

(Court  of  Chancery  of  New  Jersey.     July  11, 
1917.) 

Divorce  ®=»40  —  GaotrNns  —  Desebttok'  — 
Acquiescence  of  Wite. 
A  wife  cannot  be  denied  divorce  for  ac- 
quiescing in  the  separation  from  her  of  a  hus- 
band, who  shows  that  he  married  her  in  order  to 
plunder  her,  and  who  beats  her  and  treats  her 
otherwise  with  cruelty. 

Petition  for  divorce  by  Maria  A.  Eugster 
against  Benedict  Eugster  on  tbe  ground  of 
desertion,  with  answer  and  cross-petition 
for  divorce  on  the  ground  of  desertion. 
Heard  on  pleadings  and  proofs  taken  In  open 
court    Decree  for  petitioner. 

Henry  Leon  Slobodin,  of  New  York  City, 
for  petitioner.  Edward  P.  Stout,  of  Jers^ 
City,  for  defendant 

STEVENSON,  V.  O.  It  was  the  second 
marriage  of  each.  Both  were  in  middle  life. 
The  wife  had  property.  The  husband  had 
only  his  capacity  to  earn  wages  at  his  trade. 
Quarrels  soon  occurred.  The  husband  ap- 
parently desired  to  get  possession  of  his 
wife's  property.  Very  soon  the  parties  sepa- 
rated. 

The   case   of  the   husband   on   his   cros»- 


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101  ATIiAMTIC  BEFORTES 


(N.J. 


petition  In  my  Judgment  entirely  falls.  The 
only  question,  and  It  Is  a  somewhat  close 
one,  Is  whether  the  petitioner  consented  to 
the  separation — acquiesced  In  It  to  such  an 
extent  and  with  such  a  mind  as  to  deprive 
the  desertion  of  the  husband  of  the  element 
of  obstinacy.  In  undertaking  the  solution 
of  this  problem  I  start  with  the  conrlctlon 
that  the  defendant,  the  husband,  Is  utterly 
unreliable  as  a  witness.  His  untruthfulness 
was  manifested  on  the  stand,  and  his  deposi- 
tion as  read  from  the  printed  page  in  respect 
of  various  matters  Is  Improbable,  If  not 
Incredible.  On  the  other  hand,  I  was  strong- 
ly Impressed  with  the  honesty  and  accuracy 
of  the  petitioner's  testimony.  She  told  ber 
story  Jnst  as  she  recollected  the  facts,  with- 
out regard  to  whether  what  she  said  helped 
or  hurt  her  cause.  The  doubtful  feature  of 
the  petitioner's  case,  above  referred  to,  Is 
disclosed  by  her  own  testimony. 

Although  I  followed  the  testimony  of  the 
witnesses  closely,  I  found  it  necessary  to 
have  the  entire  testimony  written  out  by  the 
stenographer.  This  testimony  I  have  pe- 
rused with  care.  My  conclusion  is  that  the 
consenting  mind  of  the  petitioner  was  caused 
by  the  violations  of  duty  on  the  part  of  the 
defendant — ^that  the  petitioner  would  have 
been  willing  to  live  with  the  defendant  if 
be  bad  done  his  duty.  A  wife  is  not  to  be 
blamed  for  acquiescing  in  the  separation 
from  her  of  a  busttand  who  shows  ber  that 
he  married  her  In  order  to  plunder  her,  beats 
her,  and  treats  her  otherwise  with  cruelty. 
Smith  V.  Smith,  65  N.  J.  Eq.  222,  37  AtL  49 ; 
WUson  V.  WUson,  66  N.  J.  Eq.  237,  57  Atl. 
552 ;  Martin  v.  Martin,  78  N.  J.  Eq.  423,  79 
AtL  261;  Klpp  v.  Kipp,  77  N.  J.  Eq.  685, 
78  Aa  682. 

A  decree  nisi  in  favor  of  the  petitioner  will 
be  advised. 

(87  N.  J.  Bq.  »0) 

BEALL  et  al.  v.  NEW  YORK  &  N.  J.  WATER 
CO.  et  aL  (No.  39/353.) 

(Court  of  Chancery  of  New  Jersey.    July  16, 
1917.) 

(BfUaJtu*  Ity  th«  Court.) 

1.  Equttt  «=>422— Pbactiob— Deobees. 

On  final  hearing  in  the  court  of  chancery, 
bat  one  decree  may  be  entered,  no  matter  how 
numerous  the  parties  or  the  iBSoes. 

2.  BQTnxT  «=»423— PttACTiCB— Decbees. 

The  purpose  to  be  accomplished  by  a  decree 
in  equity  is  to  finally  settle  and  determine  the 
rights  of  all  persons  interested  in  the  subject- 
matter  of  the  suit. 

8.  EQumr   «s>415— Pbactics— Deobee. 

In  a  decree  in  chancery  there  need  not  be, 
in  the  ordering  or  mandatory  part,  an  adjudi- 
cation of  the  existence  of  facts  warranting  such 
decree,  although  they  may  be  stated  in  the  re- 
cital preceding  the  decretal  paragraph,  or  may 
be  omitted  entirely. 

4.  Eqbitt  «=>415— Pbaoticb— Decbees. 

There  should  be  an  adjudication  in  a  decree 
of  the  rights  to  which  a  party  or  parties  are  en- 
titled.    This  does  not  include  several  negative 


adjudications  -against  the  complainant  as  to  pre- 
cise questions  put  in  issue  on  which  be  is  nn- 
8uccessful,_  but  it  is  only  necessary  that  a  gen- 
eral adjudication  in  favor  of  defendant,  so  far  as 
he  is  successful,  need  he  made,  unless  there  are 
specific  matters  or  things  to  be  awarded  to  him, 
and  which  cannot  appropriately  be  made  the 
subject  of  an  omnibus  adjudication. 

5.  Bquitt  e=427(l)— Pbactice— Decbee. 

While  it  seems  that  every  matter  put  in  Is- 
sue by  the  pleadings  is  to  be  presumed  to  have 
been  adjudicated,  if  there  be  a  decree  for  or 
against  one  or  more  of  the  parties  to  the  suit, 
yet  for  greater  certainty  it  is  better  formally  to 
adjudicate  in  terms  all  issues  in  a  chancery  suit, 
either  generally  or  specifically,  as  the  natore 
of  the  case  may  require;  and  a  decree  can  al- 
ways be  so  framed. 

6.  Costs  «=»172— Egtrrrr— Attobnet's  Fees. 

The  allowance  of  a  counsel  fee  to  a  party  to 
a  suit  in  oquity  under  the  chancery  act  (P.  L. 
1902,  p.  540,  {  91,  amended  by  P.  L.  1910,  p. 
427),  is  discretionary. 

7.  Costs  «=>172—Equitt— Counsel  Fees. 

The  rule  is  that,  where  a  complainant  and  a 
defendant  are  each  successful  on  one  or  more 
substantial  issues,  neither  party  is  entitled  to 
costs  or  counsel  fee  against  the  other. 

8.  Equity  «=»428— PBAcTrcE— Decbee. 

when  a  complainant  prevails  in  part,  and  a 
defendant  in  part,  the  complainant  is  entitled  to 
enter  the  decree,  which  should  adjudicate  the 
relief  to  which  he  is  entitled,  and  dismiss  the 
bill  as  to  the  relief  to.  which  he  is  not  entitled, 
reciting  that  the  cause  came  on  for  hearing  in 
the  presence  of  counsel  for  the  respective  par- 
ties, naming  the  parties  and  counsel,  hut  not 
reciting  that  the  decree  is  entered  upon  the  mo- 
tion of  counsel  for  either  party;  the  name  of 
complainant's  solicitor  only  bemg  indorsed  on 
the  back  of  the  decree. 

Bill  by  Turner  A.  Beall  and  others  against 
the  New  York  &  New  Jersey  Water  Company 
and  others.  On  moticHi  for  settlement  and 
entry  of  decree.    Decree  entered. 

Collins  &  Corbln,  of  Jersey  City,  for 
complainant  McCarter  ft  English,  of  New- 
ark, for  defendants  New  York  &  New  Jersey 
Water  Co.  and  others.  Fort  &  Fort,  of  New- 
ark, for  defendant  Fletcher. 

WALKBlEt,  Cb.  This  cause  was  beard  be- 
fore Hon.  James  B.  Howell,  Vice  Chancellor, 
who  filed  an  opinion  and  died  before  advis- 
ing a  decree.  (Counsel  for  complainants,  on 
due  notice  to  defendants,  have  moved  before 
me  for  the  settlement  of  a  decree  in  accord- 
ance with  the  views  expressed  la  the  lata 
Vice  (Chancellor's  opinion. 

The  Vice  Cbanoellor  prefaced  bis  opinion 
with  a  statement  of  the  objects  of  tbe  suit 
and  the  prayers  for  relief,  and  observed 
that  the  scope  of  the  bill  and  application  for 
relief  are  much  broader  than  the  points  BDt>- 
mitted  at  the  hearing.  After  stating  the  re- 
lief to  which  the  complainants  are  entitled!, 
he  remarked  that  the  remainder  of  the  points 
taken  by  the  complainants  must  be  decided  la 
favor  of  the  defendants ;  that  Is  to  say,  the 
decree  must  provide  that,  as  to  those  points, 
tlie  complainants'  allegations  and  proofs  foil 
to  make  an  actionabile  case  against  the  de- 
fendants, wbicb  points  he  shortly  described. 


sFor  otbtf  cues  aae  mud*  topio  and  KSi-KUtlB&R  In  all  K«r-Numbar*d  DlseaU  and  InduM 


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K7.) 


BEALb  T.  NKW  YORK  &  N.  J.  WATER  CO. 


677 


and  indicated  the  reasons  that  led  to  his  con- 
clusions concerning  them. 

Messrs.  Collins  &  Corbln,  for  the  complalii- 
ants,  submit  a  form  of  decree  to  be  entered 
as  on  their  motion,  making  appropriate  re- 
cital of  the  reference,  hearing,  filing  of  opin- 
ion, and  death  of  the  Vice  Chancellor  before 
decree  made,  and  notice  of  the  present  appli- 
cation to  the  Chancellor  to  settle  the  decree, 
which  draft  adjudges  the  afHrmative  relief 
only  decided  upon  in  the  opinion,  and  does 
not  contain  any  adjudication  of  a  negative 
character,  namely,  that  complainants  are  not 
entitled  to  relief  as  to  any  of  the  several 
matters  concerning  which  the  allegations 
and  proofs  failed  to  establish  an  actionable 
case  against  defendants,  which  would  be  af- 
flnnative  in  Its  character  so  far  as  the  de- 
fendants are  concerned.  This  form  of  decree 
provides  for  costs  and  counsel  fees  to  the  com- 
plainants against  the  individual  defendants. 
Messrs.  McCarter  &  Etagllsh,  on  behalf  of 
the  defendants  whom  they  represent,  also  sub- 
mit a  draft  of  decree,  not  expressed  to  be 
made  on  motion  of  any  counsel,  but  with 
their  firm  name  indorsed  on  the  back  there- 
of, which  decree  first  adjudges  that  certain  of 
the  relief  prayed  be  denied,  and  then  decrees 
the  affirmative  relief  to  wtiich  the  complain- 
ants are  entitled,  but  is  silent  on  the  ques- 
tion of  counsel  fee  and  costs. 

Messrs.  Fort  &  Fort,  representing  the  de- 
fendant J.  Gilmore  Fletcher,  also  submit  a 
form  of  decree,  as  on  their  motion,  which 
adjudges  that,  in  so  far  as  any  relief  is  pray- 
ed against  their  client,  the  bill  be  dismissed, 
and  ttiat  he  recover  against  the  complainants 
ills  costs  of  suit,  including  a  counsel  fee. 

Messrs.  ColUns  &  Corbin  Insist  that  they 
are  entitled  to  enter  the  decree  on  behalf  of 
the  complainants,  that  it  should  not  contain 
any  negative  adjudications  against  them, 
which  would  be  affirmative  ones  in  favor  of 
defendants,  and  that  the  defendant  Fletcher 
is  not  entitled  to  have  the  bill  dismissed  as 
against  him,  with  or  without  costs  and  coun- 
sel fee. 

The  assertion  made  on  behalf  of  Fletcher 
that  he  Is  changed  with  fraud  personally, 
disassociated  from  the  other  defendants,  is 
not  borne  out.  His  counsel's  claim  is  that  he 
was  made  a  defendant,  and  relief  prayed 
against  him,  because  of  various  specific  allega- 
tions of  fraud  on  his  part  as  director  of  the 
New  York  &  New  Jersey  Water  Company. 
He  was,  moreover,  a  director  of  the  Suburban 
Water  Company,  and  one  of  the  transactions 
directed  in  the  (pinion  to  be  set  aside  is  a 
proceeding  by  Fletcher  and  his  felloW  direc- 
tors of  both  the  New  York  &  New  Jersey 
Water  Company  and  tlie  Suburban  Water 
Company  which  resulted  in  procuring  $126,- 
OOO  of  the  bonds  of  the  New  York  &  New 
Jersey  Water  Company  for  the  benefit  of  the 
Suburban  Water  Company,  in  exchange  for  a 
certain  conveyance,  which  the  opinion  holds 
is  unlawful  and  should  be  set  aside,  because 
five  of  the  directors,  including  Fletctier,  were 
lOlA^-37 


directors  of  both  companies — ^Interlocking  di- 
rectors— ^whlch  Imparted  to  the  transaction 
the  character  of  a  dominant  corporation  ob- 
taining an  advantage  of  a  servient  one. 

[1,2]  The  first  question  presented  is  as  to 
who  is  entitled  to  enter  the  decree.  The 
purpose  to  be  accomplished  by  a  decree  In 
equity  Is  to  finally  settle  and  determine  the 
rights  of  all  persons  interested  in  the  sul»- 
ject-matter  of  the  suit  See  the  remarks  of 
Vice  Chancellor  Van  Fleet  in  Jones  v.  Daven- 
port, 46  N.  J.  Eq.  77,  17  Atl.  670  (reversed  in 
Jones  v.  Fayerweather,  46  N,  J.  Bq.  237,  19 
Atl.  22,  bat  not  on  this  point).  On  final  hear- 
ing but  one  decree  Is  entered,  no  matter  how 
numerous  the  parties  or  the  Usues. 

[3,4]  In  a  decree  in  diancery  there  need 
not  be,  in  the  ordering  or  mandatory  part,  an 
adjudication  of  the  existence  of  facts  war- 
ranting such  decree,  although  they  may  be 
stated  in  the  recital  preceding  the  decretal 
paragraph,  or  may  be  omitted  entirely  (Bull 
V.  International  Power  Co.,  84  N.  J.  Eq.  14, 
92  Atl.  796) ;  but  there  should  be  an  adjudi- 
cation in  a  decree  of  the  rights  to  wliich  a 
party  or  parties  are  entitled.  This  does  not 
include,  as  I  understand  it,  several  negative 
adjudications  against  a  complainant  as  to 
precise  questions  put  in  issue  and  on  which 
be  is  unsuccessful,  but  that  it  is  only  neces- 
sary that  a  general  adjudication  in  favor  of 
the  defendant,  so  far  as  he  is  successful, 
need  be  made,  unless,  of  course,  there  are 
specific  matters  or  things  to  be  awarded  to 
him,  and  wliidi  cannot  appropriately  be  made 
the  subject  of  an  omnibus  adjudication. 
This,  I  think,  appears  from  the  mere  contem- 
plation of  the  fact  that,  if  the  complainant 
were  wholly  nnsuccessful,  a  simple  decree 
would  be  entered  reciting  that  he  was  not  en- 
titled to  relief  touching  the  matters  set  forth 
in  Ills  bill,  and  that  the  bill  should  be  dis- 
missed, and  tliat,  too,  without  long  recitals 
to  the  effect  that  he  was  not  entitled  to  this 
and  that  specific  relief,  etc. 

[6]  It  Is  true  that  the  Vice  Chancellor 
states  In  his  opinion  the  allegations  in  the 
bill  which  the  proofs  failed  to  establish,  and 
says  that  the  decree  must  provide,  as  to 
them,  that  an  actionable  case  was  not  made. 
This  does  not  Indicate  to  me,  however,  that 
he  meant  that  they  should  be  set  out  seriatim 
in  the  decree;  and  I  think  the  decree  will 
afford  the  defendants  all  the  protection  they 
need  by  a  clause  dismissing  the  bill  as  to  all 
and  singular  the  matters  and  things  alleged 
therein,  and  which  are  not  adjudged  in  favor 
of  the  complainant.  This  fbrm  of  decree 
would  give  the  defendants  all  they  are  enti- 
tled to  by  way  of  estoppel  of  record  against 
any  other  suit  or  action  by  the  complainants, 
or  those  in  privity  with  them,  with  refer- 
ence to  any  of  the  allegations  of  the  bill 
which  are  not  adjudicated  in  their  favor. 

Every  matter  put  in  Issue  by  the  pleadings 
is  undoubtedly  to  be  presumed  to  have  been 
adjudicated,  tf  there  be  a  decree  for  or 
against  one  or  more  of  the  parties  to  the  suit. 


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S78 


101  ATZAm'IO  BEPORTBS 


(N.J. 


And  yet  the  expression  of  fhe  Judges  In  the 
decided  cases  generally  Is  that  a  former  Judg- 
ment Is  concluslTe  as  to  all  demands  In  Is- 
sue and  adjudicated  in  the  former  suit. 
Soutbem  Padflc  R.  K.  Co.  t.  United  States, 
1G8  U.  S.  1,  18  Sup.  Ct  18,  42  U  Ed.  355; 
WUloughby  v.  Chicago  Ilys.  Co.,  50  N.  J.  Eq. 
C56,  25  Atl.  277.  In  any  event,  for  the  sake 
of  greater  certainty,  It  would  appear  to  be 
better  to  formally  adjudicate  in  terms  all  is- 
sues In  a  chancery  suit,  either  generally  or 
specifically  as  the  nature  of  the  case  may  re- 
quire ;  and  a  decree  can  always  be  so  fram- 
ed. The  form  of  Judgments  of  courts  of  law 
are  not  as  elastic  as  decrees  In  equity,  and 
sometimes  do  not  show  what  were  the  points 
submitted  for  decision.  In  this  situation  it 
seems  that  resort  may  be  had  to  parol  evi- 
dence to  show  what  was  submitted  and  de- 
cided.    See  Wells  on  Bes  Adjudlcata,  t  102. 

[•]  Now,  as  to  the  question  of  costs:  It  has 
already  been  observed  that  each  of  the  par- 
ties, complainants  and  defendants,  have  suc- 
ceeded in  part,  and,  I  should  add,  that  both 
sides  have  succeeded  on  substantial  Issues. 
In  Diocese  of  Trenton  v.  Toman,  70  Atl.  881, 
I  held,  when  Vice  Chancellor,  that  under  the 
chancery  act  (P.  L.  1902,  p.  540,  §  91)  the  al- 
lowance of  a  counsel  fee  to  complainant  was 
discretionary.  That  section  was  amended  in 
1910  (P.  L.  p.  427),  but  in  no  way  which  is 
important  with  reference  to  the  case  now  be- 
fore me.  The  allowance  of  counsel  fee  to 
one  party  against  another  in  a  case  like  the 
one  sub  Judice  is  not  compulsory,  but  discre- 
tionary, and  therefore  the  rule  that,  where 
the  complainant  and  defendant  are  each  suc- 
cessful on  one  or  more  substantial  Issues, 
neither  is  entitled  to  costs  as  against  the 
other,  applies;  and  this,  obviously,  extends 
to  counsel  fees  as  well. 

[7, 1]  The  result  reached  is  that  a  decree 
may  be  entered  by  the  complainants'  solicitors, 
granting  the  relief  to  which  complainants  are 
entitled,  as  stated  in  the  opinion  of  the  late 
Vice  Chancellor,  containing  a  paragraph  dis- 
missing the  bill  as  to  all  and  singular  the 
matters  and  things  alleged  against  the  defend- 
ants and  which  are  not  in  and  by  the  decree 
adjudged  to  the  complainants,  and  also  a 
paragraph  to  the  effect  that  neither  of  the 
parties,  complainants  or  defendants,  is  enti- 
tled to  costs  and  counsel  fees  as  against  the 
other  or  others,  with  the  right  reserved  to 
the  complainants  to  apply  for  costs  and 
counsel  fee  to  be  paid  by  the  Mew  Xork  & 
New  Jersey  ^Water  Company  out  of  such 
avails  as  may  be  gotten  for  it  by  and  through 
the  relief  awarded  in  the  decree. 

Now,  as  to  the  form  of  the  decree:  In  our 
practice  It  Is  quite  usual,  in  the  ordering 
part  of  a  decree,  to  recite  that  it  is  made 
up<»i  motion  of  counsel,  naming  them,  for  the 


party  entering  the  decree ;  but  I  think  that, 
where  a  complainant  prevails  in  part,  and  is 
consequently  entitled  to  enter  a  decree,  that 
decree,  where  a  negative  adjudication  is  to 
be  made  against  the  complainant,  which  is 
affirmative  so  far  as  the  defendant  is  con- 
cerned, ought  not  to  be  entered,  apparently 
on  the  motion  of  complainant's  counsel,  when, 
in  truth,  it  is  not,  and  I  think  it  unusual  to 
enter  a  decree  with  alternate  recitals  of  mo- 
tions made  on  behalf  of  complainants  and  de- 
fendants, naming  counsel  as  moving  for  the 
respective  parties,  for  the  specific  relief  ac- 
corded to  each.  I  concede  that  this  may  be 
done  without  impropriety,  and  yet  I  am  un- 
aware of  any  practice  authorizing  it  In 
this  connection,  I  have  taken  occasion  to 
look  up  some  forms  of  decrees,  for  the  pur- 
pose of  ascertaining  whether  or  not  such  a 
practice  as  Just  referred  to,  exists.  In  the 
forms  printed  in  the  Equity  Draftsman 
(American  Notes,  1861)  at  page  *823  et  seq.. 
the  decrees  are  not  expressed  to  be  made  up- 
on the  motion  of  counsel.  The  decree  in 
Page  V.  Harris,  commencing  at  page  *830,  is 
one  awarding  relief  to  both  complainant  and 
defendant;  and  at  page  *832  it  is  recited 
that  the  matter  came  on  "in  the  presence  of 
counsel  learned  on  both  sides,"  and  the  order- 
ing part  commences,  "And  his  honor  doth  de- 
clare that  the  plaintiS  is  entitled  to,"  eta 
And,  further  on,  it  Is  ordered  that  "the  said 
plaintiff  do  forthwith  grant  and  execute  to 
the  said  defendant,"  etc. 

It  may  be  that  the  reason  that  the  En^ish 
decrees  In  chancery  were  not  expressed  to  be 
made  on  motion  of  counsel,  naming  them, 
was  because  the  decrees  were  not  signed  by 
the  Chancellor,  but  were  drawn  up  by  the 
register  of  the  court  in  conformity  to  the 
Chancellor's  opinion.  Dan.  Ch.  PI.  &  Pr. 
*1008  et  seq.  However  this  may  be,  our  own 
approved  forms  of  decree  seem  to  have  beoi 
drawn  upon  the  English  model,  for  in  Dick. 
Ch.  Prec.  (Rev.  Ed.)  the  form  of  a  final  de- 
cree, at  page  178,  wlille  it  recites  the  pres- 
ence of  counsel,  does  not  purport  to  be  made 
on  motion  of  counsel.  This  is  true  of  the 
forms  of  decrees  in  foreclosure  proceedings 
at  page  361  et  seq.  and  of  a  final  decree  of 
divorce  at  page  4^. 

The  decree  to  be  entered  in  the  case  at  liat 
will  recite  that  the  cause  came  on  for  hear- 
ing in  the  presence  of  counsel  for  the  respec- 
tive parties,  naming  the  parties  and  counsel, 
but  will  not  recite  that  it  is  made  on  motion 
of  counsel  lor  any  one  of  them.  The  decree 
will,  however,  be  entered  by  the  complain- 
ants' solicitors,  whose  firm  name  will  be  in- 
dorsed upon  the  back  thereof.  The  draft 
must  be  submitted  to  defendants'  solicitors. 
who,  if  they  object  to  its  form,  will  be  heard 
on  that  question. 


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Conn.) 


AINS  V.  HAYES 


679 


(92  Conn.  UO) 


AINS  T.  HATES. 


(Supreme  Court  of  Errors  of  Ckinnecticat    Aug. 
2,  1917.) 

Landlobb  and  Tkrant  (£=3211(2)  —  Sale  ot 
rBEMisEs— Recovery  of  Damaoks  by  Ten- 
ant— ^"Compelled." 
Under  agreement  that.  If  tenant  was  com- 
pelled to  Tacate  through  a  sale  of  the  cottage, 
he  was  to  receive  $50  and  moving  expenses,  that 
lessor  sold  the  house  to  a  party,  who,  after  in- 
stalling gas,  raised  the  rent  to  an  amount  which 
the  tenant  could  not  pay,  would  not  authorise 
recovery,  where  the  increase  in  rent  was  rea- 
sonable;   the  tenant  not  being  "compelled"  to 
leave  by  the  terms  of  the  sale  or  by  the  action  of 
the  purchaser. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Compel.] 

Appeal  from  Court  of  Common  Pleas,  Fair- 
field County ;   John  J.  Walsh,  Judge. 

Action  by  Vetal  F.  Alns  against  Bdward  D. 
Bayea  Judgment  for  plaintiff,  and  defend- 
ant appeals.  Judgment  set  aside,  and  cause 
remanded  for  rendition  of  Judgment  in  f&Tor 
of  defendant. 

Tbis  action  Is  for  damages  for  compelling 
the  plaintiff  to  move,  occasioned,  as  alleged, 
by  the  sale  of  a  house  formerly  owned  by  the 
defendant.  A  memorandum  of  agreement  re- 
lating to  this  transaction  was  In  the  follow- 
ing words: 

"Bridgeport,  Conn.,  August  15,  1914. 
"I  hereby  agree,  if  Mr.  Ains  is  compelled  to 
vacate  my  cottage  on  Ezra  street  through  my 
selling  said  cottage,  he  is  to  receive  the  sum  of 
fifty  (50)  dollars  and  moving  expenses,  which  are 
not  to  exceed  the  sum  of  $14. 

"Edward  D.  Hayes." 
The  controlling  question  In  issue  was 
whether  or  not  the  plaintiff  was  compelled 
under  the  terms  of  the  contract  to  move 
through  the  defendant's  selling  the  cottage. 
T%e  finding  shows  that: 

The  defendant  was  the  owner  of  a  house 
consisting  of  five  rooms  and  a  bathroom,  but 
with  no  water.     This  building  was  situated 
on   the  corner  of  Ezra  street  and  Fairfield 
avenue,    In   Bridgeport,   Conn.     Ezra   street 
was  a  new  street,  and  Fairfield  avenue  had 
Just   been  laid  out  through  a  newly  opened 
tract  of  land  in  the  northern  part  of  the  city 
of  Bridgeport.    The  place  Is  now  a  residential 
neighborhood,   and  this  house  was  the  first 
one  erected  on  this  street.    The  cottage  on 
this  property  was  lacking  in  modern  improve- 
ments,   and   consisted  of  a  small  flve-room 
house  upon  a  city  lot    Prior  to  July  15, 1915, 
the  wife  of  the  plaintiff  called  at  the  house 
of  the  defendant  and  Inquired  If  he  had  any 
rents.     The  defendant  stated  that  he  had  a 
house  which  was  not  complete,  as  the  water 
and   gAs  bad  not  been  connected,  but  that 
water  could  be  drawn  from  a  spring  a  few 
hundred  feet  away  until  the  dty  water  sup^ 
ply  was  connected,  which  would  be  In  a  few 
months.     The  defendant  showed  the  plaintiff 
the  building  and  offered  to  rent  the  same  for 
$14   per   month,  to  commence  on  August  1, 
1915.      Tb«  plaintiff  was  willing  to  take  the 


house  on  these  terms,  providing  the  defendant 
would  give  him  assurance  that  he  would  not 
sell  It  to  anybody  who  would  compel  the  de- 
fendant to  vacate  the  premises.  The  de- 
fendant accepted  these  terms,  and  on  August 
15,  1915,  executed  the  written  agreement 
hereinbefore  set  forth.  The  defendant  re- 
ceived no  consideration  for  this  writing.  The 
plaintiff  occupied  these  premises  and  paid  the 
rent  therefor  until  October  1,  1916.  On  July 
15, 1916,  the  defendant  sold  this  house  to  one 
Koehler,  who  knew  about  this  agreement  be- 
tween the  plaintiff  and  the  defendant.  Kel- 
ler installed  gas  in  the  house  between  July 
15  and  September  9,  1916,  and  then  notified 
the  plaintiff  that,  beginning  October  1,  1916, 
the  rent  for  the  house  would  be  $25  a  month. 
Tbis  sum  was  more  than  the  plaintiff  could 
afford  to  pay  for  the  house  rent  and  was  en- 
tirely beyond  bis  means,  and  In  consequence 
of  the  increase  of  rent  the  plaintiff  was 
obliged,  on  October  1,  1916,  to  find  another 
rent.  The  cost  of  the  plaintiff's  moving  was 
$7.50.  The  court  rendered  judgment  for  the 
plaintiff,  to  recover  the  sum  of  $50  and  $7.50 
costs  of  moving,  with  double  costs. 

John  A.  Cornell,  Jr.,  Spotswood  D.  Bowers, 
and  Charles  E.  Williamson,  all  of  Bridgeport, 
for  appellant.  Henry  E.  Shannon  and  Frank 
U  Wilder,  both  of  Bridgeport,  for  appellee. 

RORABACK,  J.  (after  stating  the  facts  as 
above).  There  Is  nothing  disclosed  In  the 
finding  of  facts  which  shows  that  the  plain- 
tiff was  subjected  to  such  a  degree  of  com- 
pulsion as  to  warrant  the  rendition  of  a  Judg- 
ment in  his  favor.  The  contract  states  that 
it  was  agreed  that.  If  the  plaintiff  was  com- 
pelled to  vacate  the  defendant's  premises 
because  of  the  sale  of  them,  he  was  to  re- 
celye  the  sum  of  $50  and  moving  expenses. 
The  word  "compelled"  may  la  some  cases 
refer  to  compulsion  exercised  through  the 
process  of  the  courts,  or  through  laws  act- 
ing directly  upon  the  parties.  Such  certainly 
Is  not  the  present  case.  The  word  "compel" 
In  its  ordinary  sense  means: 

To  drive  or  urge  with  force;  to  constrain; 
oblige;  necessitate,  whether  by  physical  or  mor- 
al force.    Webster  s  International  Dictionary. 

As  applied  to  the  agreement  of  Mr.  Hayes, 
the  meaning  of  the  language,  "if  Mr.  Ains 
is  compelled  to  vacate  my  cottage  on  Ezra 
street  through  my  selling  said  cottage,"  is 
this:  Mr.  Alns  may  be  compelled  to  leave 
through  the  terms  of  the  sale,  by  which  the 
purchaser  Is  to  take  Immediate  possession; 
or  Mr.  Alns  may  be  compelled  to  leave  by 
the  action  of  the  purchaser.  Immediately 
upon  his  purchase,  notifying  him  to  leave; 
or  Mr.  Alns  may  be  compelled  to  leave  by 
the  action  of  the  purchaser  In,  Immediately 
upon  his  purchase,  making  It  unreasonable 
to  expect  him  to  continue  in  possession,  as, 
for  example,  by  raising  the  rent  to  a  prohibi- 
tive rental. 

The  record  is  also  barren  of  facts  which. 


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101  ATIiANTIC  REPORTER 


(Conn. 


aliunde  tend  to  sustain  the  plaintiff's  dalm 
tbat  he  was  compelled  to  vacate  these  prem- 
ises becanse  they  had  been  sold.  It  does 
not  here  appear  that  either  the  defendant, 
or  the  party  purchasing  his  property,  did 
anything  which  the  law  condemns.  There 
was  no  actual  or  threatened  exercise  of  pow- 
er possessed,  or  supposed  to  be  possessed, 
over  the  person  or  property  which  the  plaln- 
ttS  occupied.  It  Is  not  even  claimed  tbat 
the  plaintiff  was  ever  notified  or  requested 
to  surrender  possession  of  the  property, 
which  had  been  leased  to  him  by  the  defend- 
ant. There  Is  nothing  to  suggest  that  this 
Increase  in  the  rental  was  arbitrary  or  un- 
reasonable. Upon  the  other  hand,  It  Is  fair 
to  infer,  from  the  facts  found,  that  the 
owner  of  the  property  might  have  been  Jus- 
tified in  making  an  alteration  In  the  charge 
for  the  use  of  bis  premises.  The  property 
had  been  improved,  and  the  facts  were  not 
the  same  when  the  plaintiff  vacated  these 
premises  as  when  he  leased  them.  The 
only  compulsion  shown  came  from  the  plain- 
tiff's inability  to  pay  the  rental  of  the  prop- 
erty. This  ftict  cannot  be  resortedt  to  for 
the  purpose  of  fastening  liability  upon  the 
defendant. 

.  There  Is  error,  the  Judgment  for  the  plain- 
tiff Is  set  aside,  and  the  cause  ronanded  for 
the  rendition  of  Judgment  In  favor  of  the  de- 
fendant,   ^e  other  Judges  concurred. 


(tS  Conn.  UE) 

SCHWARTZ  T. 


DASHIFF  et  aL 


(Supreme  Court  of  Errors  of  Connecticut    Aug. 
2,  1017.) 

1.  PaTMEKT  «=»89(5)  —  APPUOATIOIf  OF  Pat- 

IfENTB. 

Where  contract  for  sale  of  goods  provides 
that  purchase  price  shall  be  paid  in  installments 
of  $25  per  week,  evidenced  by  notes,  and  payee 
applies  payments  to  notes  not  due,  those  which 
were  due  at  the  time,  and  to  which  payments 
should  have  been  applied,  are  extinguished,  al- 
though not  they,  but  notes  not  due,  were  sur- 
rendered at  the  time  of  payment. 

2.  Sales  «=»187— Pbicb— Iwtebest. 

Where  plaintiff  sold  defendant  trunks,  pur- 
chase price  to  be  paid  when  trunks  were  sold  by 
defendant,  she  is  not  entitled  to  recover  interest 
on  purchase  price  of  trunks  not  sold. 

Appeal  from  City  Court  of  Danbury ;  Sam- 
uel A.  Davis,  Associate  Judge. 

Action  by  Rosa  Schwartz  against  Morris 
Dashlff  and  another.  From  the  Judgment, 
plaintiff  appeals.    Affirmed. 

Action  to  recover  on  an  alleged  written 
contract,  and  to  recover  the  value  of  goods, 
wares,  and  merchandise,  brought  to  the  city 
court  of  Danbury.  Facts  found,  and  Judg- 
ment rendered  for  the  plaintiff  for  $66.G0, 
and  appeal  by  the  plaintiff.    No  error. 

Chester  H.  Brush,  of  Danbury,  for  appel- 
lant. Henry  O.  Wilson,  of  Danbury,  for  ap- 
pellees. 


RORABACK,  J.  The  complaint  contahis 
four  counts.  The  principal  controversy  Is  as 
to  the  allegations  of  the  first  count  of  the 
amended  complaint,  which  reads  as  follows: 
On  or  about  April  30,  1915,  the  plaintiff  sold 
to  the  defendants  a  part  of  a  stock  of  gents' 
furnishings,  under  a  written  agreement  in 
the  following  language: 

"Danbury,  Conn.,  April  30,  1915. 

"I,  Rosa  Schwartz,  from  104  White  St..  Dnn- 
bnry.  Conn.,  county  of  Fairfield,  have  sold  to 
Dasbiff  &  Kruzansky,  style  of  firm  G.  Z.  S.vstem, 
at  32  White  St,  Danbury,  Conn.,  part  of  stock 
consisting  of  gents'  furnishing  and  clothinfr, 
amounting  to  $485.75,  same  beine  paid  as  fol- 
lows: $25  cash;  the  balance  $2o  weekly  per 
notes;  $00.75  note  due  May  1,  1915,  and  bal- 
ance in  notes  as  agreed  on  the  notes. 

"Dashiff  &  Krusansky." 

The  defendants  telled  to  make  payments  In 
accordance  with  the  terms  of  said  contract, 
and  there  remained  due  on  the  same  August 
7,  1915,  the  sum  of  $100.  To  facilitate  the 
weekly  payments  called  for  in  the  contract, 
a  series  of  notes  for  $25  each,  payable  one 
week  apart,  were  executed.  Four  of  these 
notes  remained  unpaid  August  7,  1915.  The 
fourth  note  has  been  paid  since  the  com- 
mencement of  this  suit,  on  the  7th  day  of 
August,  1916. 

The  defendants  in  their  answer  admitted 
the  sale  of  the  goods,  that  the  agreement  de- 
scribed In  the  complaint  was  signed  by  them, 
that  notes  payable  one  week  apart  were  giv- 
en to  the  plaintiff,  and  tbat  there  were  16 
notes,  each  for  $25,  made  by  them.  The  re- 
maining allegations  of  this  count  were  de- 
nied by  the  defendants.  The  defendants  in 
their  answer  also  aver  that  by  a  mistake  17 
notes  were  given.  Instead  of  16,  as  intended, 
and  that  the  seventeenth  note  was  without 
consideration  and  void. 

The  finding  shows  that  by  the  written  con- 
tract the  sum  of  $485.75  was  to  be  paid  In 
installments  as  follows:  $85.75  In  cash  at  or 
about  the  time  of  the  sale,  and  the  balance 
of  $400  in  16  promissory  notes  of  $25  each, 
payable  one  week  apart  $85.75  was  paid  to 
the  plaintiff  by  the  defendants,  and  a  series 
of  notes,  all  dated  May  1,  1916,  was  signed 
and  delivered  by  the  defendants  to  the  plain- 
tiff. These  notes  were  numbered  from  1  to 
16,  inclusivb  It  also  appears  tbat  17  notes 
were  made  and  delivered  by  the  defendants 
to  the  plaintiff.  Tixe  notes  falling  due  on 
July  3  and  August  7,  1916,  were  botli  num- 
bered "13."  The  parties  did  not  Intend  to 
make  the  seventeenth  note,  and  there  was  no 
consideration  therefor.  These  notes  were  not 
presented  In  their  numerical  or  chronological 
order,  but  several  of  them  were  presented 
without  regard  for  such  order.  Notes  1  to 
11,  Inclusive,  15,  and  16  were  paid  by  the 
defendants  prior  to  the  date  of  the  complaint 
No.  14  was  paid  by  the  defendants  to  the 
plaintiff  subsequent  to  the  time  when  the  ac- 
tion  was  commenced,  and  before  the  trial. 

Fourteen  of  the  series  of  16  notes  were 


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STATE  T.  MANCINI 


631 


paid  by  the  defendants  to  the  plaintiff. 
Note  No.  12  and  two  notes,  each  numbered 
"13,"  were  presented  to  the  defendants  for 
payment;  but  payment  was  refused  on  ac- 
count of  the  discrepancy  In  number  and 
presentation.  It  may  be  ascertained  by  a 
little  mathematical  calculation  that  notes 
Nos.  14,  15,  and  16  were  not  due  at  the  time 
when  this  action  was  commenced  on  Aug^ust 
7, 1915.  It  appears  that  note  No.  14,  improp- 
erly numbered  "13,"  was  due  August  7,  1916, 
note  Na  15  was  due  on  August  14,  1915,  and 
note  No.  16  was  due  on  August  21,  1915. 
These  notes  were  the  only  ones  unpaid  when 
this  action  was  commenced.  No.  14  has  been 
paid  since  the  commencement  of  this  action. 
There  are  now  two  notes,  of  $25  each,  or 
$50  unpaid.  This  was  the  exact  amount 
wbldi  the  defendants  offered  to  allow  the 
plaintiff  to  take  Judgment  for.  This  the 
plaintiff  refused  to  accept  This  Is  also  the 
amount  of  the  Judgment  rendered  for  the 
plaintiff  upon  this  part  of  the  case. 

[1]  The  right  of  the  plaintiff  to  recover  in 
this  connection  depends  upon  the  allegations 
of  her  complaint  and  her  claim  that  the  de- 
fendants failed  to  make  payments  in  accord- 
ance with  the  terms  of  the  written  contract, 
and  that  there  was  $100  due  thereon  when 
she  commenced  her  action  on  August  7,  1915. 
As  stated,  it  appears  that  by  the  terms  of  the 
contract  three  of  these  notes,  namely,  Nos. 
14,  15,  and  16,  were  not  due  when  this  action 
was  instituted.     The  terms  of  the  contract 
were  In  conformity  with  the  terms  of  the 
notes,  except  as  to  the  one  whldi  was  ap- 
parently given  by  mistake.    The  plaintiff,  by 
her  improper  presentation  and  collection  of 
these  notes,  attempted  to  change  the  terms 
of  the  contract  and  the  terms  of  several  of 
the  notes.    The  surrender  of  the  notes  be- 
fore they  were  due  did  not  alter  the  terms 
of  the  contract,  or  of  the  notes  due  or  not 
due.    These  payments  should  have  been  ac- 
cepted and  applied  to  that  portion  of  the  In- 
debtedness and   the  notes  due  when  these 
j>ayments  were  made.    When  so  applied,  the 
debt  or  debts  now  said  to  be  due  when  this 
action  was  brought  were  necessarily  extln- 
gtilshed.    Whether  or  not  the  notes  affected 
by  these  payments  were  surrendered  is  Im- 
material as  to  the  discharge  of  the  debt  or 
debts  to  which  such  payments  should  have 
been  applied.    New  Haven  Mfg.  Go.  v.  New 
Haven  Pulp  &  Board  Co.,  76  Conn.  129,  130, 
55  Atl.  604. 

The  alleged  cause  of  action  now  before  us 
Is  based  upon  certain  notes,  which  were  due 
and  paid,  and  which  had  no  legal  existence, 
when  this  action  was  commenced.  The  de- 
fendants offered  to  allow  the  plaintiff  to  take 
jadgment  for  $50.  This  offer  was  refused 
by  the  plaintiff.  It  follows,  therefore,  that 
the  plaintiff  has  no  ground  to  complain  of 
the  action  of  the  trial  court  in  rendering 
Judgment  in  her  behalf  for  $50  and  costs,  up- 


on this  brandi  of  the  case.  This  also  puts 
an  end  to  the  plalntlfTs  claim  that  the  court 
below  should  have  allowed  her  interest  upon 
the  notes. 

[2]  The  remaining  reasons  of  appeal  re- 
quire only  a  passing  notica  One  of  them 
objects  to  the  Judgment  rendered,  upon  the 
ground  that  no  Interest  was  added  to  the 
Judgment  for  certain  trunks  referred  to  in 
the  second  count  of  the  complaint.  A  suffi- 
cient answer  to  this  claim  appears  in  the 
finding  of  the  court  that  these  trunks  were 
not  to  be  paid  for  until  sold,  and  that  they 
were  not  sold  when  the  plaintiff  commenced 
her  action. 

There  is  no  error.  The  other  Judges  con- 
curred. 


STATE  V.  MANCINI, 


(»  vt.  BOT) 


(Supreme  Court  of  Vermont.    Windham. 
Aug.  2,  1917.) 

1.  Cbimxnal  Law  <S=»1122(5)— Review— Pkes- 
EEVATioN  or  Exceptions. 

Refusal  of  requests  to  charge,  though  excep- 
tions thereto  were  allowed  and  argued,  cannot 
be  considered  when  no  copy  of  the  requests  is  in 
the  record. 

2.  Breach  of  Peace  «=»1  —  What  Consti- 
tutes. 

If  the  circumstances  justif:^  an  officer  in 
arresting  without  warrant,  it  is  the  duty  of 
the  arrested  person  to  submit,  and  bis  resistance 
would  constitute  a  breach  of  the  peace,  but  in 
the  absence  of  such  circumstances  the  attempted 
arrest  would  be  an  assault,  and  resistance  would 
not  constitute  a  breach  of  the  peace. 

3.  Akkest  <S=>63(1)— Necessity  or  Wabbant. 

An  officer  may  arrest  without  a  warrant  for 
a  breach  of  peace  committed  in  his  presence,  and 
in  some  circumstances  to  prevent  a  Drea<^  of  the 
peace. 

4.  Bbbach  oir  THK  Peace  «=5>1— What  Cow- 

BTTTUTES— StATCTB— CONSTBtrOnoN. 

Since  P.  S.  5870,  is  not  a  definition  of  breach 
of  the  peace,  but  merely  defines  certain  modes 
of  committing  such  offense,  the  offense  may  be 
committed  in  other  ways;  the  term  being  ge- 
neric and  including  all  violations  of  public  peaoa 
or  order. 

5.  Bbeaoh  of  the  Peace  <8=>1— What  Con- 
stitutj5&— "publio  peace." 

The  "public  peace"  is  that  sense  of  security 
and  tranquility,  so  necessary  to  one's  comfort, 
which  every  person  feels  under  the  protecti(» 
of  the  law,  and  a  breach  of  the  peace  is  an  in- 
vasion of  the  protection  which  the  law  thus 
affords;  and  a  violation  of  public  order  or  de- 
corum, if  calculated  and  intended  to  disturb 
public  tranquility,  may  constitute  a  breach  of 
the  peace. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  Public  Peace;  First  and  Second 
Series,  Breach  of  the  Peace.] 

6l  Disturbance  of  Public  Assevblagb  «=»1 
—What  Constitutes— "Disturbance." 
Any  conduct  contrary  to  the  usages  of  a  par- 
ticular sort  of  meeting^  and  class  of  persons 
assembled,  and  which  interferes  with  _  its  due 
proRress  or  is  annoying  to  the  assembly  in  whole 
or  in  part,  is  a  "disturbance." 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Senes,  Disturb- 
ance.] 


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101  ATLANTIC  REPORTER 


(Vt 


7.  Disturbance  or  Pubuo  Assemblage  9=> 
1— What  Constitutes. 

One  attending  a  dance  at  the  invitation  of 
thoee  in  charge  must  conform  his  conduct  to 
their  reasonable  requirements,  and  he  does  not 
have  the  absolute  right  to  drink  beer  at  a 
dance. 

8.  Disturbance  of  Pubuc  Assbmbi^oe  9=> 
14 — What  Constitutes. 

When  persona  attending  an  appointed  law- 
ful meeting  of  any  description  conduct  them- 
selves in  a  manner  lawful  in  itself,  but  at  vari- 
ance with  the  purpose  of  the  gathering  and  in- 
consistent with  its  orderly  procedure,  it  will  or- 
dinarily be  for  the  jury  to  say  whether  their 
conduct  was  such  as  amounted,  in  the  circum- 
stances, to  a  disturbance  of  the  peace. 

9.  Distubbanck  or  Pobuo  Assembi,aok  4=» 
14— What  Constituteb. 

The  court  cannot  say,  as  a  matter  of  law, 
that  it  was  not  a  breach  of  the  peace  for  a 
man  in  attendance  at  a  dance  to  walk  through 
rooms  used  in  connection  with  the  dance  with 
hia  hands  filled  with  beer  bottles  shortly  after 
a  disturbance  over  an  arrest  of  a  drunken  per- 
son. 

10.  Breach  or  Peace  «=>7— Evidence— Ad- 
mssiBiurr. 

In  prosecution  for  breach  of  the  peace,  evi- 
dence that  the  officer  who  made  the  arrest  was 
a  deiiuty  sheriff  is  admissible  as  bearing  upon 
his  right  to  arrest  without  a  warrant. 

11.  Breach  of  the  Peace  <S=»7  —  Questions 
FOB  JuBT— Evidence— Admissibiljtt. 

Since  in  a  prosecution  for  breach  of  the 
peace  the  jury  must  decide  whether  the  acts 
constituted  a  breach,  it  is  proper  to  exclude  the 
answer  of  the  arresting  officer  to  the  question 
as  to  what  acts  of  defendant  he  objected  to. 

12.  Distubbanck  or  Public  Assbmblaoe  €=> 
1— Possession  or  iNxoxiCAXiNa  Liquors— 
Biohts  of  Officers. 

An  officer  preserving  peace  at  a  public  dance 
has  a  right  to  intercept  an  attendant  who  is 
carrying  intoxicating  liquor  and  inquire  as  to 
what  was  to  be  done  with  the  liquor,  if  he  rea- 
sonably believes  that  it  is  to  be  sold,  furnished, 
or  given  away  in  violation  of  law. 

Exceptions  from  Brattleboro  Municipal 
CJonrt;   Frank  E.  Barber,  Judge. 

Frank  Manclni  was  convicted  of  a  breach 
of  the  peace,  and  he  excepts.    No  error. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASBI.TON,  POWERS,  and  TAY- 
LOR, JJ. 

O.  B.  Hughes,  State's  Atty.,  of  Brattleboro, 
for  the  State.  Gibson  &  Daley  and  W.  D. 
Smith,  both  of  Brattleboro,  for  respondent. 

MUNSON,  0.  J.  Manclni  has  Been  convict- 
ed in  the  municipal  court  of  Brattleboro  on 
a  complaint  charging  a  breach  of  the  peace 
by  tumultuous  and  offensive  carriage,  and 
by  assnulting  one  Adln  Miller.  A  dnnce  was 
in  progress  In  the  grange  hall  In  Dummers- 
ton,  and  the  constable  of  Dummerston  was 
in  attendance  In  his  official  capacity.  Some 
time  in  the  middle  of  the  night  he  procured 
the  attendance  of  Miller,  who  was  a  deputy 
sheriff,  but  wore  nothing  on  this  occasion 
indicative  of  his  office.  Three  men  had  been 
arrested  before  the  occurrence  in  question, 
and  were  then  being  confined  In  the  lodge- 
room.    Tills  room  and  the  supper  room  were 


In  the  rear  of  the  building  on  the  lower 
floor,  and  were  connected  with  an  ante- 
room In  front,  which  was  reached  by  a  stair- 
way from  the  main  hall  above.  As  Miller 
WHS  coming  from  the  supper  room,  he  saw 
four  men  in  the  anteroom  coming  towards 
him  with  bottles  in  their  bands,  one  of  whom 
was  MancinL  Miller,  without  saying  any- 
thing, stepped  up  to  Manclni  and  took  bold 
of  some  of  the  bottles  he  was  carrying, 
whereupon  Manclni  and  another  of  the  party 
wrenched  them  from  Miller's  hands.  Upon 
this  Miller  "collared"  Manclni,  and  Mancinl 
pushed  bis  hands  over  Miller's  face,  trying 
to  get  at  bis  throat.  At  the  time  Mancinl 
attempted  this,  Miller  said,  "Ton  are  fight- 
ing an  officer ;  yon  are  under  arrest"  Miller 
kept  his  hold  on  Mancinl  and  took  him  to 
the  lodgeroom,  Mancinl  fighting  him  all  the 
while  In  an  effort  to  get  away.  MiUer  tes- 
tified that  he  arrested  Mancinl  for  a  breach 
of  the  peace. 

[1]  The  exceptions  state  that  the  respond- 
ent made  several  requests  to  charge,  and  was 
allowed  exceptions  to  the  court's  refusal  to 
comply  with  them ;  and  these  requests  are 
referred  to  and  made  a  part  of  the  bill, 
and  are  required  to  be  printed-  Two  of 
these  exceptions  are  argued,  but  they  cannot 
be  considered,  as  no  copy  of  the  requests  bag 
been  furnished.  The  transcript  of  the  evi- 
dence and  charge  is  referred  to  and  made 
controlling  according  to  section  2  of  County 
Court  rule  31,  and  it  appears  from  this 
that  certain  exceptions  to  the  admission  and 
exclusion  of  evidence  were  taken  by  the 
respondent,  and  that  there  was  a  motion  to 
direct  a  verdict  on  several  grounds  presented 
Informally  in  an  oral  discussion.  This  cov- 
ered the  claims  that  there  was  no  evidence 
to  warrant  the  finding  of  a  breach  of  the 
peace  or  of  any  violation  of  law  by  the  re- 
spondent; that  the  respondent  had  a  right 
to  the  possession  of  the  bottles,  and  to  use 
force  enough  to  retain  possession;  that 
Miller  acted  throngbout  without  authority; 
and  that  the  respondent  liad  a  right  to  resist 
him  as  he  did. 

[2]  There  was  ample  evidence  to  sustain 
the  complaint,  if  the  circumstances  were 
such  as  to  Justity  Miller  in  arresting  without 
a  warrant  If  tWs  was  the  case.  It  was 
the  respondent's  duty  to  submit,  and  bis  re- 
sistance would  constitute  a  breach  of  the 
peace  as  charged.  State  v.  Carpenter,  M 
Vt.  551.  But  if  the  respondent's  previous 
conduct  was  not  such  as  to  make  him  liable 
to  arrest  without  a  warrant.  Miller's  Inter- 
ference was,  in  the  circumstances,  an  as- 
sault upon  the  respondent  which  he  could 
lawfully  resist  State  v.  Hooker,  17  Vt 
658;  2  Blsh.  Or.  Law,  {  37;  note,  84  Am. 
St  Rep.  e9a  So  In  order  to  determine 
whether  the  respondeat  had  a  right  to  make 
the  reststence  he  did,  it  will  b(>  necessary 
to  ascertain  whether  the  officer  could  law- 


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fnlly  make  the  arrest  2  R.  O.  L.  474 ;  note 
84  Am.  St  Rep.  700. 

[3]  An  officer  may  arrest  without  a  war- 
rant for  a  breach  of  the  peace  committed 
In  his  presence,  and  In  some  circumstances 
he  may  do  this  to  prevent  a  breach  of  the 
peace.  5  0.  J.  408.  The  question  whether 
certain  conduct  constitutes  a  breach  of  the 
peace  often  depends  largely  upon  the  dr- 
cumstances  of  the  particular  case.  An  act 
which  would  be  lawful  In  some  drciunstanc- 
es  may  amount  to  a  breach  of  the  peace  tf 
done  In  other  circumstances.  8  R.  O.  I<. 
285. 

[4]  If  It  were  conceded  that  respondent's 
conduct  previous  to  his  being  "collared" 
by  Miller  did  not  constitute  a  breach  of  the 
peace  by  tumultuous  and  offensive  carriage, 
this  would  not  be  determinative  of  the  case. 
A  breach  of  the  peace  may  be  committed  In 
other  ways  than  those  specified  In  P.  S. 
5870.  This  section  Is  not  a  definition  of 
the  crime  known  as  breach  of  the  peace, 
but  is  a  statute  defining  certain  modes  of 
committing  that  offense.  State  v.  Boyd, 
99  Atl.  515.  The  terra  Is  generic,  and  In- 
cludes all  violations  of  the  public  peace  or 
order.  State  v.  Oark,  64  W.  Va.  625,  63 
S.  B.  402. 

[(]  A  breadi  of  the  peace  Is  described  as 
"a  violation  of  public  order;  the  offense  of 
disturbing  the  pnbllc  peace."  Bouv.  Diet 
The  public  peace  la  that  sense  of  security 
and  tranquility,  so  necessary  to  one's  com- 
fort, which  every  person  feels  under  the 
protection  of  the  law;  and  a  breach  of  the 
peace  Is  an  invasion  of  the  protection  which 
the  law  thus  affords.  State  v.  Archibald, 
59  Vt  648,  9  Atl.  362,  60  Am,  Rep.  755.  A 
violation  of  pnbllc  order  or  decorum.  If 
calculated  and  Intended  to  disturb  the  public 
tranquility,  may  constitute  a  breach  of  the 
peace.  Bouv.  Diet;  Davis  v.  Burgess,  54 
Mich.  614,  20  N.  W.  540,  52  Am.  Rep.  828; 
Stewart  v.  State,  4  Okl.  Or.  564,  109  Pac. 
243,  82  L.  R.  A.  (N.  S.)  505;  Delk  v.  Com- 
monwealth, 166  Ky.  39,  178  8.  W.  1129,  L.  R. 
A.  1916B,  1117. 

Mr.  Bishop  says  that  whatever,  of  anffl- 
dent  magnitude  for  the  law's  notice,  one 
willfully  and  unjustifiably  does,  to  the  dis- 
turbance of  the  public  order  or  tranquility. 
Is  Indictable  at  common  law.  1  Bish.  <>. 
Law,  {  533.  He  refers  to  "breadies  of  the 
peace"  as  a  term  of  indefinite,  yet  large, 
and  sometimes  greatly  expanded,  meaning, 
and  says  further  that: 

"Commonly  and  more  narrowly  it  signifies  any 
criminal  act  ot  a  sort  to  dlsturo  the  public  re- 
pose."   Section  536. 

With  reference  to  the  disturbance  of  as- 
semblies he  says: 

"When  people  assemble  for  worship,  or  in 
their  town  or  other  lilce  meetings,  or  probably 
always  when  they  come  together  m  an  orderly 
way  for  a  purpose  not  unlawful,  the  common 
law  makes  it  a  crime  to  disturb  their  meeting. 
*    *    *    What   amounts  to   disturbance   varies 


with  the  nature  and  objects  of  the  meeting." 
Section  642. 

P.  S.  6871  prescribes  the  penalty  Incurred 
by  "a  person  who  l>y  a  disorderly  or  unlaw- 
ful act  disturbs  a  town,  sodety  or  district 
meeting,  or  a  school  or  any  meeting  lawfully 
assembled."  In  considering  what  constitated 
a  disturbance  onder  a  similar  statute  in 
Massachusetts,  Shaw,  C.  J.,  said: 

The  question  "cannot  easily  be  brought  with- 
in a  definition,  applicable  to  all  cases ;  it  must 
depend  somewhat  upon  the  nature  and  character 
of  each  particular  kind  of  meeting  and  the  pur- 
poses for  which  it  is  held,  and  much  also  on  the 
usage  and  practice  governing  such  meetings. 
•  *  *  It  must  be  decided  as  a  question  of 
fact  in  each  particular  case;  and  although  it 
may  not  be  easy  to  define  it  beforehand,  there 
ia  commonly  no  great  difficulty  in  ascertaining 
what  is  a  willful  disturbance  in  a  given  case.' 
Commonwealth  v.  Porter,  1  Gray  (Mass.)  476. 

[6]  Speaking  generally,  the  rule  applicable 
to  disturbances  of  public  assemblies  is  that 
any  conduct  which,  t>eing  contrary  to  the 
usages  of  the  particular  sort  of  meeting  and 
class  of  persons  assembled,  interferes  with  Its 
due  progress,  or  is  annoying  to  the  assembly 
In  whole  or  in  part,  is  a  disturbance.  2  Bish. 
Cr.  Law,  {  309. 

[7]  It  is  urged  that  the  respondent  was 
only  doing  what  he  had  a  right  to  do ;  that 
he  was  the  owner  of  the  beer  and  had  a 
right  to  do  as  he  pleased  with  It,  If  It  whs 
not  used  for  an  Illegal  purpose.  But  the 
respondent's  right  to  possess  and  drink  the 
beer  at  the  time  and  place  In  question  was 
not  absolute.  It  was  not  even  such  as  it 
might  have  been  in  that  place  at  some  other 
time,  as  when  the  place  was  otherwise  oc- 
cupied. The  respondent  was  there  at  the 
invitation  of  those  in  control  of  the  dance, 
and  It  WIS  his  duty  to  conform  his  conduct 
to  their  reasonable  requirements.  See  2 
Bish.  Cr.  I.aw,  »  310. 

[8]  The  importance  of  the  attending  circum- 
stances as  an  element  In  determining  whether 
the  conduct  complained  of  amounts  to  a  breach 
of  the  peace,  Is  indicated  by  many  adjudged 
cases,  and  Is  fairly  apparent  from  the  statu- 
tory characterization  of  the  act  as  one  which 
disturbs  or  breaks  the  public  peace.  It  has 
been  held  in  this  state  that  a  boxing  match, 
while  not  a  breach  of  the  peace  as  conducted 
in  ordinary  athletic  sports,  may  be  so  con- 
ducted as  to  become  such,  and  that  it  is  for 
the  jury,  under  proper  instructions,  to  deter- 
mine from  the  nature  of  the  conduct  whether 
the  offense  has  been  committed.  State  v. 
Bnmham,  56  Vt  445,  48  Am.  Rep.  801.  And 
when  persons  attending  an  appointed  law- 
ful meeting  of  any  description  conduct  them- 
selves In  a  manner  lawful  in  Itself,  but  at 
variance  with  the  purpose  of  the  gathering 
and  Inconsistent  with  its  orderly  procedure, 
it  will  ordinarily  be  for  the  Jury  to  say 
whether  their  conduct  was  such  as  amounted, 
In  the  circumstances,  to  a  disturbance  of  the 
peace. 

[9]  Here  four  young  men,  one  of  whom  was 
the  respondent,  with  hands  filled  with  beer 


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bottles,  were  making  tlielr  ,way  through  the 
rooms  nsed  for  and  In  connection  with  the 
dance.  Officers  were  present  to  preserve  or- 
der and  protect  from  annoyance  those  prop- 
erly pursuing  the  purpose  of  the  gathering. 
Others  had  been  arrested  for  a  drunken  dis- 
turbance shortly  before  this  occurrence,  in  cir- 
cumstances from  which  it  may  fairly  be  pre- 
sumed that  the  fact  was  known  to  the  re- 
spondent The  officer  In  charge  had  previous- 
ly cautioned  the  respondent  in  connection 
with  blB  possession  of  a  suit  case  apparently 
containing  bottles,  and  told  him  to  behave 
himself.  We  cannot  say  as  a  matter  of  law 
that  the  respondent's  conduct  was  not,  in  the 
circumstances,  a  breach  of  the  peace.  On  the 
evidence,  the  question  was  for  the  Jury  under 
proper  Instructions. 

[10]  Against  objections  that  the  evidence 
was  irrelevant  and  immaterial,  the  state  was 
permitted  to  show  that  Miller  was  a  deputy 
sheriff,  and  that  the  respondent  was  arrested 
and  placed  in  a  temporary  lockup.  Neither 
ruling  was  error.  It  was  material  to  show 
that  Miller  was  a  peace  officer  as  bearing 
upon  bis  right  to  arrest  without  a  warrant 
The  arrest  and  placing  in  a  temporary  lockup 
were  a  part  of  the  transaction  under  investi- 
gation, and  so  not  immaterial. 

[11]  Miller  was  called  as  a  witness  for  the 
state,  and  testified  to  the  facts  leading  up  to 
the  respondent's  arrest  In  cross-examina- 
tion he  was  asked : 

"And  the  only  breach  of  the  peace  that  you 
complain  of  is  because  the  respondeat  objected 
to  your  taking  a  bottle  of  beer  from  his  band 
as  you  have  describedV" 

The  question  was  excluded,  and  the  re- 
spondent excepted.  The  reason  advanced  in 
support  of  the  exception  Is  that  Miller  was 
the  complaining  witness.  It  does  not  appear 
that  this  was  the  fact.  Besides,  it  was  Im- 
material what  particular  thing  in  the  re- 
spondent's conduct  Miller  complained  of.  The 
jury,  and  not  the  witness,  was  to  Judge  of 
the  quality  of  the  acts  which  the  prosecu- 
tion relied  upon  as  constituting  a  breach  of 
the  peace.  The  witness  had  testified  fully 
as  to  the  facts  both  In  direct  and  cross  ex- 
amination. 

In  his  argument  to  the  court  on  the  re- 
spondent's motion  for  a  directed  verdict,  the 
state's  attorney  said,  in  effect,  that  a  drunken 
fracas  had  taken  place  earlier  in  the  evening. 
The  respondent  asked  that  an  exception  to  the 
statement  be  noted,  but  the  court  Ignored  the 
request  and  could  properly  do  so,  for  the 
reason,  among  others,  that  the  evidence  war- 
ranted the  statement. 

[12]  The  state's  attorney  claimed  and  ar- 
gued in  substance  that  when  Miller  saw  the 
respondent  coming  into  the  ball  with  bottles 
of  beer,  he  had  a  right  to  investigate  and  as- 
certain whether  or  not  it  was  being  carried 
In  for  unlawful  sale  or  distribution.  The  re- 
spondent excepted  because  there  was  no  evi- 
dence that  Miller  had  reason  to  believe  that 


it  was  for  unlawful  sale  or  distribution,  and 
no  evidence  that  he  seized  it  for  that  reason. 
The  court,  "in  view  of  the  discussion"  (ap- 
parently referring  to  that  had  in  the  presence 
of  the  Jury  on  the  motion  for  a  verdict), 
charged  on  this  subject  that  intoxicating  liq- 
uor, being  goods  the  sale  and  distribution  of 
which  are  prohibited  in  this  state — ^In  other 
words  being  contraband — ^the  officer  had  a 
right  to  Intercept  the  respondent  and  Inquire 
of  him  as  to  what  was  to  be  done  with  tbe 
Uquor,  if  he  reasonably  believed  that  it  was 
to  be  sold,  furnished,  or  given  away  in  viola- 
tion of  law.  The  respondent  excepted  to  this 
on  the  ground  that  the  evidence  did  not  dis- 
close that  Miller  had  any  reason  to  believe, 
or  did  believe,  that  tbe  liquor  was  being  ca^ 
rled  by  tbe  respondent  for  any  unlawful  pur- 
pose. 

It  was  not  claimed  that  the  argument  and 
charge  on  this  point  did  not  correctly  state 
the  law ;  so  we  have  no  occasion  to  consider 
anything  more  than  whether  the  evidence  met 
the  respondent's  objection.  Miller  testified 
that  be  grabbed  the  bottles  because  be 
thought  it  was  not  Just  the  thing  to  bring 
them  into  the  hall;  that  he  wanted  to  see 
what  was  going  on;  that  he  arrested  the  re- 
spondent because  he  thought  he  was  breaking 
the  peace  by  bringing  "stuff"  into  the  hall; 
that  he  took  tbe  bottles  to  see  what  they 
were.  In  answer  to  the  respondent's  ques- 
tions the  witness  said : 

"My  mind  was  to  know  why  they  were  brinit- 
in^  such  stuC  into  the  hall  and  what  tiicy  were 
going  to  do  with  it;  it  occurred  to  me  that 
three  or  four  fellows,  coming  into  the  hall  with 
their  hands  full  of  bottles,  couldn't  use  it  all 
themselves,  and  were  violating  the  law  and  dis- 
turbing tbe  i^eace;  (that)  it  was  a  breach  of 
the  peace,  bnn^ng  this  stuff  into  tbe  ball  un- 
der the  conditions  that  night" 

It  appeared  from  the  testimony  of  tbe  at- 
fleer  in  charge  that  earlier  in  the  evening  the 
respondent  had  In  the  hall  a  dress  suit  case 
containing  bottles,  and  that  witness  spoke  to 
him  about  It  and  cautioned  blm,  as  hereinbe- 
fore stated,  and  that  the  respondent  there- 
upon took  the  dress  suit  case  outside  the 
hall,  three  or  four  fellows  going  with  him. 
This  evidence  and  the  inferences  to  be  drawn 
from  It  fairly  tended  to  support  the  argument 
and  charge. 

Other  exceptions  not  noticed  are  too  dear 
ly  without  merit  to  require  special  consldera- 
tloii. 

Judgment  that  there  Is  no  error  in  the  pro- 
ceedings, and  that  the  respondent  take  noth- 
ing by  his  exceptions.    Let  execution  be  donOi 

OlVt  615' 
ESTABROOKS  et  al.  v.  ESTABROOKS. 
(Supreme  Court  of  Vermont     St  Johnsbury. 

Aug.  U,  1917.) 
1.  Easements  <S=>48(3)— Extent  or  Rioht— 
ExrKESs  Grant — Constbuction. 
Where  testator,  owning  two  adjoining  lot* 
with  a  driveway  running  across  both,  devised 


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to  plaintiffs  lot  then  occairfed  by  tbem,  with 
right  of  way  "aa  now  used"  acroas  the  other, 
then  occupied  by  testator,  without  designation 
of  terminal  points,  and  plaintiffs  had.  for  years 
before  and  after  making  of  will,  while  testator 
waa  living,  gone  to  and  from  his  driveway  by 
wa^  of  street  leading  up  to  it,  as  well  as  over 
their  driveway,  plalntifn  were  entitled,  in  ac- 
cordance with  testator's  intention,  to  use  of 
driveway  through  both  ways  of  approach  in  use 
in  his  lifetime,  and  fact  that,  because  plaintiffs 
have  moved  to  a  different  part  of  the  lot,  they 
had  to  ose  a  longer  section  of  street  as  approach 
to  driveway,  does  not  defeat  that  right. 

S.  Easements  «=925— Extent  of  Right— Bx- 

FREB8  GBANT  — CONBTRUOTION. 

Where  testator,  owning  two  adjoining  loti 
with  a  driveway  running  across  both,  devised 
to  plaintiffs  lot  then  occupied  by  them,  with 
right  of  way  across  the  other,  then  occupied 
by  himself,  so  long  as  either  one  should  live 
and  occupy  premises  described  as  "dwelling 
bouse,  outbuildings,  and  land  where  they  now  re- 
side," testator  intended  to  give  them  right  to 
use  driveway  so  long  as  they  occupied  any  part 
of  that  lot,  and  since  right  was  given  for  their 
personal  benefit,  and  not  for  benefit  of  land,  their 
conveyance  of  part  of  premises  gave  grantees 
no  interest  in  right  of  way. 

Appeal  In  Chancery,  Caledonia  County; 
Wlllard  W.  Miles,  Chancellor. 

Action  by  Lydla  A.  Estabrooks  and  anoth- 
er against  Henry  F.  B^stabrooks.  From  a 
decree  for  plaintiffs,  defendant  appeals. 
Modified  and  afflrnied,  and  remanded. 

Harry  Blodgett,  Dunnett  &  Shields  and 
Walter  W.  Wesley,  all  of  St  Johnsbury,  for 
appellant.  Porter,  Witters  &  Harvey,  of  St 
Johnsbury,  for  appellees. 

MTJNSON,  C.  J.  The  premises  Involved  in 
this  controversy  were  owned  In  one  parcel  by 
Warren  Estabrooks,  who  was  the  father  of 
the  defendant  and  the  father-in-law  and 
grandfather,  rcsiiectively,  of  the  plalntUfs, 
and  who  died  April  3,  1906,  leaving  a  will 
executed  November  11,  1901.  At  the  time 
the  will  was  made  the  testator  was  occnpy- 
Ing  the  premises  devised  to  the  defendant, 
and  the  plaintiffs  were  living  on  the  premises 
devised  to  them,  and  enjoying  the  privilege 
which  is  the  snbject  of  the  dispute.  The 
clause  creating  the  easement  Is  as  follows: 

"Also  a  right  of  way,  as  now  used  from  said 
land  to  Main  street.  In  St.  Johnsbury,  across 
the  lot  where  I  now  rt-side,  to  them  and  each 
of  them  so  long  as  either  of  them  shall  live  and 
occupy  the  premlBes  aforesaid ;  and  said  right 
of    way  shall  then   terminate." 

It  should  be  noticed  here  that  the  grant  is 
of  "a  right  of  way,"  without  the  designation 
of  terminal  points,  and  that  its  coarse  from 
the  plaintiffs'  land  across  the  servient  es- 
tate Is  to  be  determined  solely  by  the  exist- 
ing use;  for  these  features  of  the  grant  are 
made  the  basis  of  Important  claims,  to  be 
taken  up  after  the  case  has  been  fully  stated. 
The  premises  divided  between  these  parties 
by  Warren  Estabrooks'  will  extended  from 
Main  street  easterly  to  North  Pearl  street  and 
Warren  avenue;  the  last  being  a  street  ex- 
tending easterly  from  the  north  end  of  North 


Pearl  street  nearly  at  a  right  angle.  The 
lot  devised  to  the  plaintiffs  was  a  projec- 
tion of  the  property  extending  southerly 
along  North  Pearl  street  and  bounded  on 
the  north  by  a  line  which  was  nearly  in  line 
with  the  south  line  of  Warren  avenue.  But 
the  north  part  of  this  lot  was  separated  from 
North  Pearl  street  by  a  triangular  piece,  not 
owned  by  Warren  Elstabrooks,  the  base  line 
of  which  was  17  feet  and  the  side  lines  about 
100  feet.  This  base  line  is  practically  a  con- 
tinuation to  North  Pearl  street  of  the  line 
whi<fli  bounded  plaintiffs'  lot  on  the  north. 
The  driveway  through  the  defendant's  land 
from  Main  street  to  North  Pearl  street  en- 
ters that  street  at  Its  junction  with  Warren 
avenue,  about  15  feet  north  of  the  point  where 
the  line  just  described  strikes  North  Pearl 
street  The  buildings  occupied  by  the  plain- 
tiffs at  the  date  of  the  will,  and  until  June 
11,  1914,  were  located  on  the  northerly  end 
of  their  lot  A  driveway  extended  from  the 
bam  around  the  rear  end  and  north  side  of 
the  house,  and  then  curved  to  the  north,  and 
crossed  the  division  line  at  the  comer  be- 
tween the  plaintiffs'  lot  and  the  triangular 
piece,  and  entered  the  defendant's  driveway 
about  18  feet  from  the  line  of  North  Pearl 
street.  There  was  a  walk  extending  from  the 
plaintiffs'  driveway  near  the  rear  of  the 
bouse,  whi(^  entered  the  defendant's  drive- 
way about  60  feet  west  of  the  driveway  con- 
necticHi;  but  this  walk  has  since  been  dis- 
continued. There  were  steps  which  led  down 
to  North  Pearl  street  from  the  lawn  in 
front  of  the  bouse,  crossing  the  triangular 
piece  about  28  feet  north  from  its  point  A 
portion  of  the  passageway  leading  to  these 
steps  was  grassed  over.  It  does  not  appear 
that  objection  to  the  maintenance  of  the 
steps  has  been  made  by  any  one.  The  de- 
fendant has  excepted  to  the  chanc^or's  fail- 
ure to  find  that  there  was  a  concrete  walk 
from  the  easterly  front  steps  connecting  with 
the  driveway,  claiming  that  the  existence  of 
such  a  walk  is  established  by  uncontradicted 
evidence. 

The  plaintiffs  used  the  driveway  leading 
tnnn  their  buildings  to  the  defendant's  drive- 
way, and  the  defendant's  driveway  from  the 
point  of  Junction  to  Main  street,  as  their 
convenience  and  necessities  required,  without 
let,  hiudrance,  or  obstruction.  They  also 
used  the  walk  above  described  as  a  means  of 
passing  between  their  house  and  the  defend- 
ant's driveway,  in  going  to  and  from  Main 
street  On  coming  from  their  driveway  into 
that  of  the  defendant,  they  sometimes  turned 
to  the  right  and  passed  into  North  Peail 
street  The  driveway  between  Main  street 
and  the  plaintiffs'  bouse  was  used  by  grocery- 
men,  hackmen,  and  visitors,  and  for  the  de- 
livery of  coal.  Orocerymen  and  milkmen 
sometimes  came  up  North  Pearl  street,  made 
their  deliveries  and  passed  across  to  Main 
street,  and  scmietimes  made  the  trip  in  the 


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101  ATLANTIC  RBPORTBB 


(Vt 


reverse  order.  Hackmen  engaged  by  the 
plaintiffs  would  sometimes  come  up  North 
Pearl  street,  stop  for  the  plaintiffs  at  the 
steps  before  described,  and  drive  along  to 
the  North  Pearl  entrance,  and  thence  across 
to  Main  street,  and  would  sometimes  cross 
directly  from  Main  street  to  North  Pearl 
street,  and  thence  to  the  steps,  and  receive 
the  plaintiffs  there.  The  plaintiffs  used  all 
the  described  routes  at  their  convenience. 
The  buildings  occupied  by  Warren  Eista- 
brooks  at  tlie  date  of  the  will  and  until  his 
death,  and  since  occupied  by  the  defendant, 
are  located  on  Main  street,  somewhat  back 
from  the  street,  with  the  bam  directly  in 
the  rear  of  the  house,  and  the  westerly  end 
of  the  driveway  crossing  the  premises  consti- 
tutes the  defendant's  approach  from  Main 
street  to  his  buildings.  At  the  southeasterly 
corner  of  the  barn  is  a  gate  connected  with 
a  farmyard,  which  has  been  used  at  times  to 
dose  the  right  of  way. 

On  the  Ilth  of  June,  1914,  the  plaintiffs 
conveyed  to  Mary  Caldbedi  the  lot  devised 
them  by  Warren  Estabrooks,  excepting  a 
small  lot  in  the  southeast  comer,  and  re- 
serving their  interest  in  certain  springs  and 
a  right  to  remove  the  bam.  Subsequent  to 
the  conveyance  the  bam  was  moved  onto  the 
lot  not  conveyed,  and  converted  into  a  dwell- 
ing, and  the  plaintiffs  have  since  resided 
there.  The  will  gives  a  right  of  way  from 
the  plaintiffs'  land,  across  the  defendant's 
land,  to  Main  street  Within  such  limits  as 
these  terms  may  be  held  to  establish,  the 
extent  and  location  of  the  right  are  to  be 
determined  by  the  use  then  existing.  The 
continuance  of  the  right  is  conditioned  upon 
the  occupancy  of  the  premises  by  the  gran- 
tecs  of  the  right.  The  flnal  question  is 
whether  the  present  occupancy  meets  the  re- 
quirement of  the  will. 

The  plaintiffs  claim  that  the  right  devised 
to  them  covered  every  line  of  approadi  by 
which  they  had  been  accustomed  to  reach 
the  driveway  crossing  the  defendant's  land ; 
that  they  had  a  right  to  make  use  of  the 
public  street  between  their  steps  and  the 
entrance  to  the  deftendant's  roadway  as  a 
connecting  link  between  the  two;  and  that 
the  right  to  make  use  of  that  street  remains 
to  them,  notwithstanding  their  transfer  of 
that  part  of  the  premises  which  Included  their 
former  dwelling  and  its  aiH>roaches.  The  de- 
fendant argues  that  this  is  a  grant  ot  "a 
right  of  way,"  and  not  of  two  or  more;  that 
the  way  granted  extended  from  the  plaintiffs' 
premises  across  the  defendant's  land  to  Main 
street,  and  not  from  Pearl  street  across  the 
defendant's  land;  that  no  right  was  given 
the  plaintiffs  to  come  upon  the  defendant's 
land  from  any  other  place  than  their  own 
property. 

[1]  For  a  series  of  years  before  and  after 
the  making  of  the  will,  and  while  the  testa- 
tor was  living  at  the  house  now  occupied  by 
the  defendant,  the  plaintiffs  and  those  having 


business  at  their  place  came  to  and  from  the 
testator's  driveway  by  way  of  North  Pearl 
street,  as  well  as  over  the  driveway  whidi 
led  directly  from  the  plaintiffs'  buildings  to 
the  testator's  driveway.  In  these  circum- 
stances, the  words  "as  now  used  from  said 
land  to  Main  street  •  *  *  across  the  lot 
where  I  now  reside,''  are  not  to  be  taken  as 
capable  of  only  one  construction,  and  so  con- 
clusive as  regards  the  testator's  Intention. 
It  is  difficult  to  believe  that  one  having  the 
interest  the  testator  had  in  these  devisees 
intended  that  the  delivery  of  their  household 
supplies  should  be  accomplished  only  by  go- 
ing in  from  Main  street  and  returning  the 
same  way,  when  their  driveway  entered  his 
only  18  feet  from  North  Pearl  street.  We 
think  it  was  the  intention  of  the  testator 
that  the  plaintiffs  should  have  the  use  of 
the  roadway  between  the  two  streets  through 
both  the  ways  of  approach  then  in  use. 

[2]  It  having  been  ascertained  tliat  the 
plaintiffs  were  entitled  to  use  a  section  of 
North  Pearl  street  In  connection  with  the 
way  across  the  defendant's  land  while  living 
in  the  dwelling  since  conveyed,  the  fact  that 
their  change  of  location  to  another  part  of 
the  lot  requires  the  use  of  a  longer  section 
of  the  street  caimot  of  itself  defeat  the  right 
So  we  treat  the  remaining  claim  of  the  de- 
fendant as  standing  squarely  upon  the  ques- 
tion of  occupancy.  By  the  terms  of  the  win 
the  plaintiffs  are  entitled  to  the  right  as 
long  as  they  shall  "occupy  the  premises 
aforesaid,"  and  the  premis^  referred  to  are 
described  In  the  will  as  "the  dwelling  house, 
outbuildings  and  land  where  they  now  re- 
side." The  defendant  argues  that  this  lan- 
guage required  the  plaintiffs  to  remain  in 
possession  of  the  entire  premises,  if  they 
wished  to  retain  the  right,  and  that  they  do 
not  now  occupy  the  "aforesaid  premises," 
but  only  a  very  small  portion  of  them. 

It  is  clear  that  the  right  to  cross  the  de- 
fendant's lot  was  given  for  the  personal  bene- 
fit of  the  testator's  daughter-in-law  and 
granddaugliter,  and  not  for  the  benefit  of  the 
parcel  devised  to  them.  T^e  right  was  con- 
ditioned upon  their  occupancy  of  the  prem- 
ises, and  was  to  cease  upon  the  death  of  the 
survivor.  This  right  being  personal,  tbe 
plaintiffs'  conveyance  of  a  part  of  the  prem- 
ises gave  their  grantees  no  interest  in  tbe 
right  of  way.  The  plaintiffs'  continued  oc- 
cupancy of  the  remainder  of  the  lot  presents 
the  same  situation  as  regards  their  personal 
benefit  which  the  testator  had  In  contempla- 
tion when  he  made  his  will.  We  think  tbe 
testator  intended  that  the  plaintiffs  should 
have  access  to  and  from  Main  street  over  tbe 
driveway  across  his  premises,  through  the 
North  Pearl  street  entrance,  as  long  as  they 
continued  to  occupy  any  part  of  the  lot  ad- 
Joining  that  street. 

Decree  modified,  and  affirmed  as  modified. 
and  cause  remanded,  with  mandate. 


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WESTERN  MABTLAKD  BT.  CO.  v.  8ANNER 


587 


(UO  Md.  E81) 

WBSTBRN  MARTIiAND   RT.  CO.  ▼.  SAN- 
NEm.     (Nol  6J 

(Conit  of  Appeals  of  Maryland.    June  26, 1917.) 

1.  Masteb  and  Servant  «=s129(1)— Fedebal 

liKFLOTEBS'   IiIABIUTT  AOT — NKGLIOENClt. 

Under  federal  E^nployere'  Liability  Act  (Act 
AprU  22,  1908,  c.  149,  35  Stat.  6S  [U.  S.  Ck>mp. 
St  1916,  SS  8657-8665),  recovery  cnn  be  had 
only  for  cases  of  accident  in  which  negligence  is 
tlie  cause  of  the  injury. 

2.  Masteb  and  Sebvant  «=»87— Actiohb  Un- 
der Fedebai.  Euplovers'  Liabiutt  Act— 
"Neolioencb"  as  Pbkrequisitb  to  Rxcot- 

KBT. 

The  word  "negligence,"  not  being  defined  in 
federal  Employers  LiiabiUt^  Act,  must  be  taken 
to  mean  such  act  of  commission  or  omission  as 
would  at  common  law  have  been  sufficient  to  en- 
title an  action  thereunder  to  be  submitted  to  a 
jury. 

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

8.  Masteb  and  Sebvant  ®=3ll2(3)— Actions 

Undeb    Fedebal    Buplotebs'    Liabiutt 

Acp— Neolioencb. 
Fact  that  a  railroad  has  constructed  no  spe- 
cial walk  or  path  along  its  tra<^  for  the  use  of 
employes  In  operating  switches  is  not  such  neg- 
ligent omission  as  will  make  defendant  liable  to 
its  servant  under  the  federal  E<mployers'  Liabili- 
ty Act. 
4.  Master  and  Servant  <3=>112(3)— Actions 

Undeb  Fedebai.  Employers'  Liabilitt  Act 

—Condition  or  Track. 
Fact  that  the  embankment  or  slope  on  which 
a  railroad  was  built  did  not  come  up  to  the  bot- 
tom of  the  ties  is  not  of  itself  such  negligence  as 
will  render  railroad  liable  to  an  employ^,  jump- 
ing from  freight  train  where  the  track  at  that 
point  is  wi  a  curve  and  the  rails  on  the  outer 
tangent  of  the  curve  are  necessarily  higher  than 
on  the  inner  tangent. 

B.  Master  and  Servant  <3=>265(1)— Tbial 
^=>139(1) — Actions  koh  Injuries— Taking 
Case    fbom    Jvbt— SurFiciBNOT    of    Evi- 

DENOB. 

In  an  action  under  the  federal  E>mployer8* 
Liability  Act,  it  is  incumbent  upon  the  plnintiCf 
to  show  affirmatively  all  the  elements  of  his  right 
of  recovery,  and  in  the  absence  of  evidence  to 
fully  support  the  verdict,  should  one  be  found, 
it  becomes  the  imperative  duty  of  the  court  to 
direct  a  verdict  for  defendant. 

8.  Masteb  and  Servant  <S=>285('8')— Actions 
— Federal  Employers'  Liability  Act. 
In  action  by  railroad  employe  under  the  fed- 
eral Employers'  Liability  Act  for  injuries  al- 
leged to  nave  been  caused  by  failure  of  railroad 
to  provide  safe  approach  to  switch  for  use  of 
trainmen,  evidence  held  insufficient  to  warrant 
submission  to  jury. 

7.  Masteb  and  Sebvant  4s»280— Actions— 
Ekplotebs'    Liability    Act— Assumption 
of  Risk— Bvidencb. 
In  action  by  railroad  employ^  under  the  fed- 
eral  SSmployers'  Liability  Act  for  injuries  al- 
leged to  have  been  caused  by  failure  of  railroad 
to  provide  safe  approach  to  switch  for  use  of 
trainmen,    plaintiff    held,    under   the   evidence, 
precluded  from  recovery  by  assumption  of  risk. 

Appeal  from  Superior  Court  of  Baltimore 
City ;  James  M.  Ambler,  Judge. 

"To  be  offlclaUy  reported." 

Action  by  James  Howard  Sanner  against 
the  Western  Maryland  Railway  Company. 
Judgment  for  plaintiff,  and  defendant  ap- 
peals.   Reversed. 


Argued  before  BOTD,  C.  J.,  and  BRISCOE, 
THOMAS,  UBNER,  and  STOCKBRIDGE,  JJ. 

George  R.  Galther  and  George  P.  Bagby, 
both  of  Baltimore,  for  appellant  George 
Moore  Brady,  of  Baltimore  (William  Mllnes 
Maloy  and  William  Joseph  Tewes,  both  of 
Baltimore,  on  the  brief),  for  appellee. 

STOCKBRIDGE,  J.  This  suit  was  brought 
to  recover  damages  for  personal  injuries  re- 
sulting to  the  appellee  under  the  following 
ctrcumstances : 

James  H.  Sanner  was  a  brakeman  on  a  pas- 
senger train  of  the  appellant,  running  from 
Cumberland,  Md.,  to  Eflkins,  W.  Va.  On  the 
13th  o<  July,  1914,  he  was  on  a  west-bound 
train,  and  as  the  train  approached  a  place 
known  as  NefC's  Siding,  where  It  was  to  meet 
an  east-bound  train,  the  plaintiff  took  a  po- 
sition on  the  locomotive  in  order  to  be  ready 
to  Jump  off  and  throw  the  switch,  which 
would  enable  his  train  to  pass  into  the  sid- 
ing. As  the  place  came  in  sight,  it  was  seen 
that  the  east-bound  train  had  already  arrived 
at  the  point,  and  that  the  switch  was  open 
for  the  west-bound  train  to  enter.  The  en- 
gineer accordingly,  instead  of  bringing  his 
train  to  a  stop  before  reaching  the  switch, 
ran  past  it,  and  at  a  point  some  30  or  40 
feet  beyond  the  plaintiff  jumped  from  the  lo- 
comotive, and  one  of  his  legs  gave  way  under 
him.  He  picked  himself  up  and  continued 
to  discharge  bis  duties  for  the  remainder  of 
the  run.  By  the  next  morning  his  knee  had 
swollen  considerably,  and  gave  him  pain.  He 
returned  to  Cumberland,  where  he  was  visit- 
ed by  the  physician  of  the  company,  who 
treated  the  case  as  one  of  a  sprain.  Little  or 
no  Improvement  taking  place,  he  was  later 
sent  to  Baltimore,  where  an  X-ray  was  made 
of  the  injured  joint  This  showed  that  "one 
of  the  ligaments  in  the  joint  bad  t)een  torn, 
and  a  little,  tiny  piece  of  bone  was  pulled  off 
with  it"  This  amounted  to  a  permanent  in- 
jury, incapacitating  the  plaintUI  from  further 
work  as  a  railroad  man,  an  occupation  which 
he  had  followed  for  a  number  of  years. 

[1]  The  theory  on  which  the  suit  was 
brought  was  that  it  fell  within  the  provi- 
sions of  the  act  of  Congress  of  1908,  chapter 
149.  Section  1  of  that  act  provides  that  ev- 
ery common  carrier  by  railroad  engaged  in 
interstate  commerce  shall  be  liable  in  damages 
to  any  person  suffering  Injury  whUe  he  Is 
employed  by  such  carrier  in  such  commerce, 
where  the  Injury  results  "in  whole  or  in  part 
from  the  negligence  of  any  of  the  offlcers, 
agents,  or  employes  of  such  carrier,  or  by 
reason  of  any  defect  or  insufficiency,  due  to 
its  negligence.  In  its  cars,  engines,  appliances, 
machinery,  track,  roadbed,  works,  boats, 
wharves,  or  other  equipment."  It  is  there- 
fore clear  that  not  all  cases  of  accident  and 
injury  are  included  within  the  provisions  of 
the  act,  but  only  those  in  which  negligence 
is  the  cause  from  whlcli  the  injury  rcsultii. 


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101  ATUANTIO  REPORTER 


(Md. 


That  It  was  not  Intended  to  apply  to  all  cases 
Is  also  made  clear  by  the  title  of  the  act, 
which  is : 

"An  act  relating  to  the  liability  of  common 
carriers  by  railroad  to  their  employes  in  certain 
cases." 

[2]  In  order  to  detennlne  whether  a  cer- 
tain case  Is  within  the  provisions  of  the  act, 
it  Is  first  necessary  to  ascertain  whether 
there  has  been  actionable  negligence  on  the 
part  of  the  railroad.  Nowhere  In  the  act  is 
any  definition  of  negligence  to  be  found. 
Therefore  the  term  must  be  taken  to  mean 
such  act  of  commission  or  omission  as  would 
at  common  law  hare  been  sufficient  to  entitle 
the  case  to  be  submitted  to  a  Jury.  That  neg- 
ligence in  this  case  Is  claimed  to  have  been 
the  failure  of  the  railroad  to  provide  a  safe 
approach  to  the  switch  for  the  use  of  the 
trainmen  whose  duty  It  might  be  to  open  or 
close  the  switch  lever. 

The  accident  happened  about  6  o'clock  p. 
m.,  or  an  hour  and  a  half  before  sunset,  when 
it  must  have  been  perfectly  light  The  Im- 
mediate cause  of  the  Injury  to  the  plaintiff 
Is  claimed  to  have  been  the  existence  of  a 
bole  or  guUey  5  feet  long,  3  feet  wide,  and  4 
feet  deep,  into  which  the  plaintiff  fell  as  he 
dropped  from  the  locomotive.  He  made  no 
examination  of  It  at  the  time  of  the  accident, 
but  on  the  following  day,  from  the  rear  of 
an  east-bound  train  in  motion,  he  observed  a 
hole  or  gully  at  or  near  the  point  where  he 
bad  suffered  his  injury.  There  Is  no  positive 
identification  of  the  hole  or  gully  be  then 
saw  as  being  the  same  one  Into  whldi  he  bad 
actually  fallen.  Nor  Is  there  any  identifica- 
tion of  the  spot  by  any  other  witness.  The 
plaintiff  testified  to  the  appearance  of  the 
hole  he  saw  on  the  following  day  as  Indicat- 
ing that  it  bad  been  there  for  a  considerable 
length  of  time,  but  no  knowledge  of  any  de- 
fect Is  brought  home  to  the  railroad,  or  any 
if  its  employ^. 

Can  it  be  said  that  the  existence  of  sudi  a 
hole,  assuming  for  the  time  being  that  it  did 
exist,  constitutes  actionable  negligence?  A 
number  of  railroad  men  testified  as  to  the 
conditions  of  the  approach  to  switches  on  the 
railroads  by  which  ttaey  were  employed,  but 
their  evidence  only  shows  that  dlfTerent 
modes  prevail  upon  different  roads,  not  that 
there  is  any  generally  recognized  method  of 
construction. 

[3]  Assuming,  as  for  the  purpose  of  the 
present  Inquiry  must  be  done,  the  absolute 
truth  of  all  the  plaintiff's  testimony,  and  that 
the  railroad  company  had  constructed  no 
special  walk  or  path  for  those  operating  the 
switch,  that  fact  alone  Is  not  sufficient  to 
fasten  a  liability  upon  the  appellant,  as  be- 
ing an  act  of  negligent  omission  on  its  part. 

[4]  It  was  further  claimed  by  the  plain- 
tiff as  an  act  of  negligence  that  the  embank- 
ment or  slope  upon  which  the  railroad  was 
built  did  not  come  up  to  the  bottom  of  the 
ties  at  this  point  by  a  considerable  distance; 


but  the  plaintiff  also  testified  that  the  road 
at  this  point  was  on  a  curve,  and  other  wit- 
nesses testified  without  contradiction  that 
because  of  this  curve,  the  rail  on  that  side 
was  2^  inches  higher  than  on  the  other  side. 
This  fact  would  of  itself  show  a  reason  for 
the  elevation  of  the  ties  at  thi&  point  over 
that  maintained  under  different  conditions. 

[5]  The  rule  of  law  In  this  case  is  that 
announced  by  Judge  Alvey  in  State  v.  Mal- 
ster,  57  Md.  309: 

"It  Is  incumbent  upon  the  plaintiff  to  show 
affirmativelv  all  the  elements  of  the  right  to  re- 
cover. tJnlesa  the  court  can  see  that  there  is 
such  evidence  in  the  cause  as  will  thoroughly 
support  a  verdict  if  the  jury  should  find  it  to  be 
credible  and  proper  to  be  made  the  basis  of  their 
finding,  it  becomes  an  imperative  duty  of  the 
court  to  instruct  the  jury  to  find  their  verdict 
for  the  defendant." 

And  this  statement  has  been  followed  and 
adopted  in  numerous  cases  since.  The  re- 
fusal of  the  defendant's  first  prayer  was 
therefore  clearly  prejudicial  error. 

[S,  71  In  view  of  this  condnsion,  It  Is  not 
essential  tbat  the  second  question  presented 
by  the  record,  vi2.  the  assumption  of  risk  by 
the  appellee,  should  be  discussed  at  any 
length.  It  is,  however,  proper  to  say  that, 
under  the  adjudicated  cases,  the  appellee  is 
precluded  from  recovery  upon  this  ground  al- 
sa  In  Masterson  v.  Namqult  Worsted  Mills; 
32  R.  I.  10,  78  AQ.  258,  the  plaintiff  turned 
an  ankle,  and  the  acddent  was  said  to  have 
resulted  from  an  inequality  in  the  floor;  his 
arm  was  caught  in-  some  belting  and  injured. 
He  sued  the  master  for  negligence  In  the  con- 
struction of  the  floor,  and  it  was  held  that, 
even  if  it  could  be  said  that  the  defendant 
was  negligent  in  the  construction  of  the  floor, 
it  was  a  defect  as  obvious  to  the  plaintiff  as 
the  defendant,  and  that  as  it  was  so  obvious 
he  assumed  the  risk,  and  the  verdict  for  the 
defendant  was  sustained.  In  A.,  T.  &  S.  F.  R. 
R.  T.  Alsdurf,  47  111.  App.  200,  a  brakeman 
was  ld.11ed  on  a  siding.  In  the  center  of  the 
trade  the  spaces  between  the  ties  were  filled 
to  the  top  of  the  ties,  and  then  receded  so 
tbat  there  was  no  ballast  at  the  ends  of  the 
ties.    In  dedding  the  case  the  court  says: 

"In  the  absence  of  any  agreement  the  railroad 
was  not  bound  to  furnish  a  better  track  than 
such  as  were  In  general  use,  or  to  furnish  such 
a  track  as  the  Jury  might  rightfully  regard  as 
safer  than  the  customary  one.  The  deceased 
must  be  held  to  have  understood  the  ordinary 
hazards  attending  his  employment  as  a  brake- 
man,  and  to  have  voluntarily  taken  upon  him- 
self those  hazards  when  he  entered  appellant's 
employment  Hazards  arising  out  of  the  usual 
and  general  methods  ot  construction  on  well- 
managed  railroads  of  the  side  tracks  upon  which 
brakemen  perform  their  duties  must  be  consid- 
ered as  ordinary  and  incidental  to  the  business 
generally,  and  therefore  as  being  generally  as- 
sumed by  the  contract  of  employment." 

In  Fletcher  v.  Freeman-Smith  Lumber  Ck>., 
98  Ark.  202,  135  S.  W.  827,  it  Is  said: 

"Where  a  brakeman  received  injuries  at  hi-J 
accustomed  place  of  work,  the  risk  of  danger 
from  the  steepness  of  the  grade,  being  open  to  his 
observation  when  he  took  service,  was  assumed 
by  him." 


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Md.) 


PATTERSON  v.  MAYOR,  ETC.,  OF  CITY  OF  BALTIMORE 


689 


And  the  same  rule  baa  been  adopted  and 
followed  In  tbls°  court.  Westiughouse  Man- 
ufacturing Ca  V.  Monroe,  129  Md.  59,  9$ 
Atl.  206,  and  cases  tbere  cited.  For  tbe  rea- 
sons thus  indicated,  tbe  Judgment  appealed 
from  must  be  reversed,  without  a  new  trial. 

Judgment  reversed  with  costs. 


<130  Md.  646) 

PATTERSON  et  al.  v.   MAYOR,   ETC.,  OF 
CITY  OP  BALTIMORE.     (No.  9.) 

(Court  of  Appeals  of  Maryland.    June  26,  1917.) 

1.  Eminent  Douain  9s»202(4)  —  Absebsicent 

.    OP  Compensation  —  Evidencx  —  Value  fob 

Special  Pxibpose. 

In   a   proceeding   to  condemn  and  open   a 

atreet  through  a  tract  of  land,  it  was  admia- 

aible  to  ihow  that  the  tract  was  available  for 

city  lots,  and  to  point  out  its  special  advantages 

for  residential  or  industrial  purposes,  though  it 

had  been  held  as  an  unimproved  and  undevelop- 

'«d  tract  and  not  laid  oat  into  lots. 

Z  WrrNEssEs  4=3262  —  Plats  to  Explain 

TE8TEV0RT— DISCBETION   Ol*  COUBT. 

Where  in  such  proceeding  a  witness  was 
permitted  to  state  fully  his  views  as  to  the  ef- 
fect on  the  tract  of  land  of  locating  a  street  as 
proposed  by  tho  city,  and  testified  concerning 
the  irregularity  in  the  shape  of  the  lots  into 
which  the  tract  might  be  divided,  and  the  jury 
was  taken  upon  the  gronnd  and  saw  the  actual 
-conditions  for  themselves,  and  two  plats  were 
admitted  in  evidence,  it  was  within  the  court's 
-discretion  to  exclude  a  plat  prepared  by  the 
witness  and  showing  the  plan  proposed  by  him 
tm  the  best  method  of  developing  the  tract. 

3.  Eminent  Domain  4=3208(1)  —  Assessment 
or  Damages— Evidence. 

In  a  proceeding  to  condemn  land  for  a  street, 
-evidence  as  to  whether  the  street  as  laid  out 
by  the  dty  was  the  most  advantageous  to  the 
-owners  of  the  property,  and  as  to  what  plan 
would  give  the  property  the  most  utility,  was 
not  admissible,  as  the  question  was  the  dam- 
ages sustained  by  the  plan  adopted  by  the  city, 
and  not  whether  this  was  more  injurious  than 
some  other  plan. 

4.  EJVIDENCB  «=>507  —  EXPEBT  Tebtimowt  — 

Mattebs  of  Common  Knowi^doe. 
A  question   asked   an   expert   witness   was 
properly  excluded,  where  men  of  sufficient  in- 
telligence to  sit  on   a  jury  could  answer  the 
question  as  well  as  the  witness. 

6.    MtJNICIPAL  CORPOBATIONS  ®=>413(1)— PtTB- 

uc  Improvements— Assessment  of  Bknk- 

I1T8— "Open"— "Latinq  Out." 
Baltimore  Charter,  $  6,  authorizes  the  city 
to  provide  for  laying  out,  maintaining,  etc., 
any  street  in  the  city,  and  for  assessing,  either 
generally  on  the  city  property  or  specially  on 
property  benefited,  the  damages  and  expenses, 
and  paying  over  compenBstion  to  each  person 
entitled  before  any  street  shall  bo  openral.  A 
-different  part  of  the  section  authorizes  the  city 
to  provide  by  general  or  special  ordinance  for 
grading,  paving,  and  curbing  any  street  con- 
demned, etc.  Ueld,  that  the  Legislature  made  a 
distinction  between  opening  a  street  and  grad- 
ing, paving,  or  curbing  a  street,  and  in  a  pro- 
-ceeding  to  condemn  and  open  a  street  the  city 
could  not,  assess  the  benefits  to  the  property 
from  the  grading  or  paving  of  the  street,  as 
"open"  is  the  equivalent  of  "laying  out,"  which 
is  defined  as  tbe  adoption  of  outlines  or  loca- 
tions, and  not  the  work  of  construction  or  im- 
provements (citing  5  Words  and  Phrases,  Lay 
Out;  see,  also.  Words  and  Phrases,  First  and 
Second  Series,  Open). 


6.  Municipal  Corpobations  4=»2GC— Public 
Improvements — Statutory  Provision. 

Acts  1912,  c.  32,  amending  Baltimore  Char^ 
ter  (Code  Pub.  Loc.  Lews,  art.  4)  i  175,  rela- 
tive to  the  laying  out,  opening,  or  grading  of 
streets,  but  providing  that  nothing  therein  shall 
affect  any  right  or  liability  accrued,  or  any 
proceeding  begun  or  pending  prior  to  the  pas- 
sage of  that  act,  and  the  Acts  1914,  c.  125, 
dealing  with  the  same  subject,  did  not  apply  to 
a  proceeding  commenced  before  they  were 
enacted. 

7.  Eminent  Domain  4=9208(1)  —  Damages  — 
Evidence. 

In  a  proceeding  to  condemn  and  open  a 
street,  evidence  that  the  city  for  some  years  bad 
not  been  exercising  its  power  of  assessing  the 
cost  of  grading  and  paving  streets  on  abutting 
owners  was  irrelevant,  as  the  nonexercise  of 
its  power  did  not  prevent  tbe  city  from  exer- 
cising it  in  the  future. 

8.  EhaNBNT  Domain  «=>204  —  Asbesbmxnt  or 
Compensation— Evidence— Benefttb. 

Where  in  a  proceeding  to  condemn  and  open 
a  street  it  is  attempted  to  show  the  benefits  in 
advance  of  the  paving  and  curbing,  the  width 
of  the  driveway  and  sidewalks  to  be  adopted 
should  bo  shown. 

Second  Appeal  from  Baltimore  Cltj  C!ourt: 
Chas.  W.  Heulsler,  Judga 

Proceeding  by  tbe  Mayor,  etc.,  of  the  City 
of  Baltimore  against  Laura  Patterson  and 
others,  to  condemn  and  open  a  street.  From 
an  inadequate  award,  the  property  owners 
appeal.    Reversed  and  new  trial  awarded. 

The  following  Is  city's  prayer  No.  3,  re- 
ferred to  in  tbe  opinion: 

The  jury  are  Instructed  that  the  measure  of 
damages  in  this  case  is  the  market  value  of  tho 
property  taken  by  the  city  of  Baltimore,  in  this 
proceeding,  at  the  time  of  the  taking,  considered 
without  reference  to  the  opening  of  Twenty- 
Fifth  street  or  any  effect  that  such  openLog  may 
have  upon  the  property;  and,  in  addition,  sucm 
damage,  if  any,  as  may,  by  such  opening,  have 
been  caused  to  the  remaining  property  concern- 
ed. The  fair  market  value  of  the  property  taken 
is  the  price  that  a  purchaser,  willing  but  not 
compelled  to  buy,  would  pay  for  it,  and  whi(A 
a  seller,  willing  but  not  compelled  to  sell,  would 
accept  for  it 

They  are  further  instructed  that  the  measure 
of  benefits  is  the  increase  in  the  market  value 
of  the  property  in  controversy  caused  by  the 
op;pning  of  Tw«ity-E^fth  street  through  the 
said  property,  and  that  this  increase  should  be 
considered  as  the  amount  which  a  purdiaser, 
willing  but  not  compelled  to  buy  the  property, 
would  pay  for  It,  and  which  a  scUer,  willing 
but  not  compelled  to  sell,  will  accept  for  it, 
after  Twenty-Kfth  street  shall  have  been  open- 
ed, graded,  paved,  and  curbed;  it  being  proper 
to  take  into  account  the  fact  that  the  property 
owner  will  be  burdened  when  the  street  shall 
be  paved,  with  the  special  paving  tax  of  15 
cents  for  each  front  foot  on  each  side  of  said 
street  for  a  period  of  10  years  as  a  matter  of 
law;  and  that,  as  a  matter  of  fact,  in  order  to 
utilize  this  property,  it  will  be  necessary  for 
the  property  owner  to  pave  the  sidewalk  and 
to  grade  the  property  back  to  a  usaolo  depth 
in  connection  with  that  street,     ((^ranted.) 

Argiied  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  TJR- 
NER,  and  STOCKBRIDGB,  JJ. 


«s»For  etber  cues  ■••  same  topio  and  KSY-MUMB£R  u>  aU  Kay-Numbered  DlsaMa  and  Induu 


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590 


101  ATLANTIC  RKPOETEB 


(Md. 


Arthur  W.  Macben,  Jr.,  and  Raymond  S. 
WllUams,  both  of  Baltimore,  for  appellants. 
S.  S.  Field  and  George  Arnold  Frlck,  both 
of  Baltimore,  for  appellees. 

BOYD,  O.  J.  This  Is  the  second  appeal  by 
the  appellants  In  a  proceeding  for  the  con- 
demnation and  opening  of  Twenty-Fifth 
street  from  the  east  side  of  Greenmount  ave- 
nue to  the  west  side  of  Harford  avenue,  un- 
der Ordinance  No.  416  of  the  mayor  and  dty 
council  of  Baltimore,  approved  December  9. 
1909.  The  former  appeal  is  reported  in  127 
Md.  233,  96  AU.  458.  There  are  37  excep- 
tions in  the  record — ^tbe  last  one  presenting 
the  rulings  of  the  lower  court  in  rejecting 
11  of  the  appellant's  13  prayers,  and  grant- 
ing the  city's  third  and  seventh  prayers  and 
overruling  the  special  exception  to  the  city's 
seventh  prayer,  and  the  others  containing  ex- 
ceptions to  rulings  on  the  evidence. 

[1,  2]  The  first  20  exceptions  relate  to  dam- 
ages. Undoubtedly  an  Important  element  In 
estimating  damages  for  land  taken  under 
condemnation  proceedings  may  be  its  avail- 
ability for  or  adaptability  to  certain  pur- 
poses. In  this  case,  although  the  tract  of 
land  owned  by  the  appellants  had  not  been 
laid  out  into  lots,  but  bad  been  held  by  them 
and  those  under  whom  they  dalm  for  many 
years  as  an  unimproved  and  undeveloped 
tract  of  land,  it  was  admissible  to  show  that 
it  was  available  for  city  lots,  and  to  point 
out  the  special  advantages  for  residential  or 
industrial  puri>oses  the  particular  parts  of  it 
had.  In  the  testimony  of  Mr.  Atwood,  a 
witness  for  the  appellants,  who  was  shown 
to  be  an  experienced  dvll  engineer  and  sur- 
veyor, and  had  been  a  commissioner  for  open- 
ing streets  for  one  term  and  city  surveyor 
for  two  terms,  he  was  permitted  to  state  ful- 
ly hia  views  as  to  the  effect  of  locating 
Twenty-Fifth  street  according  to  the  location 
made  in  these  proceedings.  The  appellants, 
however,  did  not  deem  that  suflSdent,  but 
sought  to  introduce  two  plats  made  by  the 
witness.  The  first,  second,  third,  fourth, 
fifth,  sixth,  eighth,  ninth,  tenth,  twelfth, 
thirteenth,  and  nineteenth  exceptions  relate 
to  those  plats.  The  Belt  Line  of  the  Bal- 
timore &  Ohio  Railroad  Company  runs 
through  the  tract  of  the  appellants,  dividing 
it  into  two  parts  of  about  equal  areas,  each 
part  containing  in  the  neighborhood  of  50 
acres.  It  is  only  the  part  south  of  the  rail- 
road which  is  involved  in  this  case.  Mr. 
Atwood  testified  that  Twenty-Fifth  street,  as 
proposed  to  be  located,  was  100  feet  wide 
and  runs,  roughly  speaking,  parallel  with  the 
railroad  and  approximately  from  100  to  120 
feet  from  It  His  tbeory  was  that  by  thus 
laying  out  the  street,  the  depth  between  the 
railroad  and  the  north  side  of  the  street  was 
not  sufficient  "to  utilize  it  for  most  busi- 
nesses of  any  large  character,"  and  If  that 
side  of  the  street  was  used  for  residences, 
they  would  run  back  to  the  railroad,  which 
would   be    disadvantageous    to    them.      He 


spoke  a  good  deal  about,  the  Irregularly 
shaped  lots,  and  said  that  the  proposed  loca- 
tion of  the  street  had  the  effect  of  forcing 
the  irregularities  to  the  south  of  the  street, 
instead  of  putting  them  along  the  railroad. 
The  lots  were  not  actually  laid  out  on  the 
ground,  and  the  plats  prepared  by  him  were 
simply  of  a  plan  he  proposed  as  the  best 
method  of  developing  the  tract.  While  we 
do  not  see  any  particular  Injury  tliat  would 
likely  have  been  done  by  admitting  the  plats 
In  evidence.  It  is  i>osslble  that  they  might 
have  misled  and  confused  the  Jury,  rather 
than  helped  them.  The  Jurors  were  taken 
upon  the  ground,  and  could  see  for  them-' 
selves  the  actual  conditions  there.  Presum- 
ably the  location  of  the  proposed  street  was 
pointed  out  to  them,  as  well  as  such  other 
locations  as  were  relevant.  Considerable  dis- 
cretion In  such  matters  must  be  left  to  the 
trial  Judge,  and  If  there  be  room  for  a  dif- 
ference of  opinion  as  to  whether  the  plats 
offered  by  the  appellants  could  have  aided 
the  Jury,  without  the  danger  of  misleading 
them,  the  action  of  the  lower  court  was  at 
least  within  the  discretion  that  must  be  al- 
lowed it;  espedally  was  that  so  as  to  the 
plat  on  the  bladtboard  referred  to  in  the 
third  exception.  The  plat  used  in  the  con- 
demnation proceedings  and  one  used  by  the 
appellants  at  the  former  trial  were  before 
the  Jury,  and  with  a  witness  as  InteUlgent 
as  Mr.  Atwood  on  the  stand,  there  ought  to 
have  been  no  difficulty  in  his  making  hIa 
views  plain  to  the  Jury  with  the  use  of  the 
plats  which  were  before  them,  for  all  legiti- 
mate purposes.  There  w«is  therefore  no  re- 
versible error  in  the  rulings  in  any  of  those 
exceptions,  although  some  of  the  questions 
possibly  might  have  been  admitted  without 
injury. 

[3, 4]  In  the  seventh  exception  Mr.  Atwood 
was  asked  to  say  whether  be  was  able  to 
state  whether  or  not  this  land  "possesses 
a  special  adaptability  for  use  for  the  laying 
out  through  the  same  of  streets  or  roads  or 
rights  of  way  for  the  purpose  of  constructing 
or  making  or  creating  building  lots  or  lots 
for  commerdal  and  industrial  purposes,  and, 
if  so,  ttate  to  the  jury  what  plan  would  be 
the  highett  utilUj/  of  tM»  property  for  those 
pvrposet."  He  was  permitted  to  answer  the 
question  except  as  to  the  last  clause,  which 
we  have  italicized.  The  court  was  dearly 
right  in  excluding  that  The  question  for  the 
Jury  was  not  "what  plan  would  be  the  high- 
est utility  of  this  property,"  but  what  dam- 
ages the  appellants  were  entitled  to  by  rea- 
son of  taking  the  land,  in  the  way  proposed. 
It  may  be  that  some  other  plan  might  pro- 
duce better  results  to  the  appellants  than  the 
one  proposed,  but,  if  that  be  so,  that  was  one 
of  the  questions  the  Jury  could  consider. 
The  city  cannot  be  required  to  adopt  the 
plan  which  "would  be  the  highest  utility  of 
the  property"  for  the  purposes  named,  and 
to  permit  different  experts  to  answer  such 
a  question,  we  might  have  as  many  opln- 


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PATTERSON  r.  MATOK,  ETa,  OF  CITY  OF  BALTIMORE 


mi 


as  tbere  were  experts.  They  would . 
soon  get  Into  the  realms  of  speculation.  This 
record  well  Illustrates  how  conflicting  thej 
views  of  experts  are  on  such  questions,  and, 
while  their  opinions,  if  kept  within  proper 
bounds,  are  admissible  and  helpful,  if  not, 
they  are  confusing  and  of  no  use  In  attain- 
ing the  ends  of  Justice.  Mr.  Atwood  was  per- 
mitted to  testify  to  the  effect  this  location 
of  the  street  had  on  the  property.  The 
eleventh  exception  more  clearly  illustrates 
what  we  mean.  In  that  Mr.  Atwood  was  ask- 
ed whether  the  opening  of  the  streets,  "of 
the  width  and  location  proposed  In  these  pro- 
ceedings wonld  accord  with  the  best  plan  for 
the  development  of  the  property — by  best,  I 
mean  the  most  advantageous  to  the  owners 
of  said  property  rather  than  the  city  as  a 
whole."  The  city  was  not  laying  out  a  plan 
for  the  development  of  the  property.  It 
might  well  be  that  a  street  of  less  width  and 
differently  located  would  cause  less  damage 
to  the  owners  than  the  one  proposed,  but 
if  such  a  rule  be  adopted  as  the  question 
suggested,  a  dty  might  be  compelled  to  adopt 
plans  for  the  benefit  of  the  owners  of  the 
land  being  condemned,  rather  than  those 
for  the  public  good.  We  do  not  understand 
that  to  be  the  law  of  this  state.  Sometimes 
It  happens  that  a  public  improvement  of  this 
kind  is  materially  and  injuriously  affected 
by  the  effort  to  please  or  benefit  some  par- 
ticular person,  but  such  action  by  public  of- 
ficials ^ould  be  condemned,  and  not  sanc- 
tioned by  the  courts.  Of  course  owners  are 
generally  entitled  to  more  compensation  for 
taking  100  feet  in  width  than  they  would  be 
if  only  60  feet  were  taken,  and  If  the  location 
Is  specially  injurious,  that  fact  can  be  consid- 
ered in  fixing  the  damages.  The  seventh,  elev- 
enth, fifteenth,  sixteenth,  and  eighteenth  ques- 
tions were  properly  held  to  be  Inadmissible. 
The  fourteenth  was  harmless,  as  the  witness 
bad  already  said  he  "would  not  put  any  blind 
street  oat  thei*."-  We  see  no  special  objec- 
tion to  the  seventeenth,  unless  it  was  al- 
ready sufficiently  answered  in  the  previous 
evidence.  The  twentieth  did  not  require  an 
expert  to  answer.  If  the  Jurors  were  men 
of  sufficient  intelligence  to  sit  on  a  Jury,  they 
could  answer  the  question  as  well  as  the  wit- 
ness. So  while  there  Is  no  doubt  that  the 
appellants  had 'the  right  to  show  the  uses 
for  which  tba  ,pn^>erty  was  adaptable,  we 
cannot  agree  with  them  as  to  the  methods 
adopted  for  the  purpose,  and  we  find  no  such 
error  In  any  of  the  20  exceptions  already 
referred  to  as  would  Justify  us  in  reversing 
the  case. 

It  may  be  well  to  add  here  that  in  ad 
ilitlon  tp  evidence  being  admitted  on  the  sub- 
ject, the  lower  court  by  the  apiiellants'  sec- 
ond prayer  expressly  Instructed  the  Jury 
that: 

"In  arriving  at  the  market  value  of  the  land 
to  be  taken,  the  jury  must  take  into  considera- 
tion its  availability  for  building  lots  and  for  in- 
<lu8tri*l  purposes,  if  they  find  it  bad  such  avail- 
ability, even  though  they   also   find  that  said 


land  is  not  at  present  used  for  such  purposes, 
and  that,  In  fixing  the  dnmnj;es  for  Injury  to  the 
remaininit;  land  of  the  petitioners,  "they  should 
also  consider  whether  the  availability,  if  any,  of 
said  remaining  land  for  use  as  building  lots  or 
for  industrial  purposes  will  be  decreased  at  all, 
and,  if  so,  to  what  extent,  by  the  condemning 
and  opening  of  Twenty-Fifth  street  of  the  width 
and  of  the  location  proposed  in  these  proceed- 
ings." 

[B]  The  most  Important  question  In  this 
case  is  the  measure  of  benefits  to  be  assessed 
against  the  appellants.  The  city's  prayer 
No.  3,  which  was  granted,  so  directly  pre- 
sents the  question  as  to  suggest  the  advisa- 
bility of  considering  that  before  considering 
the  other  exceptions  to  the  rulings  on  the 
evidence.  We  will  request  the  reporter  to 
publish  that  prayer  in  his  report  of  the  case. 
The  time  fixed  by  that  Instruction  for  the 
consideration  of  the  Jury,  as  to  the  benefits 
was: 

"After  Twenty-Fifth  street  shall  have  been 
opened,  graded,  paved  and  curbed ;  it  being 
proper  to  take  into  account  the  fact  that  the 
property  owner  will  be  burdened  when  the  street 
shall  be  paved,  with  the  special  paving  tax  of 
15  cents  for  each  front  foot  on  each  side  of 
said  street  for  a  period  of  10  years  as  a  mat- 
ter of  law,  and  that  as  a  matter  of  fact,  in  order 
to  utilize  his  property,  it  will  be  necessary  for 
the  property  owner  to  pave  the  sidewalk  and  to 
grade  the  property  back  to  a  usable  depth  in 
connection  with  that  street." 

These  proceedings  were  begrun  under  "An 
ordinance  to  condemn  and  open  Twenty-Fifth 
street  from  the  easternmost  side  of  Green- 
mount  avenue  (formerly  York  road)  to  the 
nortbwesternmost  side  of  the  Harford  turn- 
pike road."  The  new.  charter  of  Baltimore 
city  in  section  6,  art  4,  Public  Local  Laws, 
under  the  head  of  "General  Powers,"  subhead 
"Streets,  Bridges  and  Highways,"  is  sub- 
divided in  the  revised  edition  of  the  charter 
published  In  1915  by  the  law  department  of 
the  city.  Under  subdivision  "(A)  Opening, 
Extending,  Widening,  Straightening,  or  Clos- 
ing up  Streets,"  the  city  Is  authorized  "to 
provide  for  laying  out,  opening,  extending, 
widening,  straightening,  or  closing  up,  in 
whole  or  in  part,  any  street,  square,  lane  or 
alley  within  the  bounds  of  the  city,  which 
in  Its  opinion  the  public  .welfare  or  conven- 
ience may  require."  It  then  provides  for 
'  damages  and  benefits,  and  authorizes  the 
dty  "to  provide  for  assessing  or  levying,  ei- 
ther generally  on  the  whole  assessable  prop- 
erty of  said  city,  or  specially  on  the  property 
of  persons  benefited,  the  whole  or  any  part 
of  the  damages  and  expenses  which  It  shall 
ascertain  will  be  Incurred  in  locating,  open- 
ing, extending,  widening,  straightening,  or 
closing  up  the  whole  or  any  part  of  any 
street,  square,  lane  or  alley  in  said  city." 
After  providing  for  appeals  to  the  Baltimore 
city  court  from  the  decisions  of  the  commis- 
sioners .for  opening  streets,  or  other  persons 
appointed  by  ordinance  to  ascertain  the  dam- 
age which  will  be  caused  or  the  benefit  which 
will  accrue  to  the  owners  by  locating,  open- 
ing, etc.,  any  street,  it  contains  this  clause: 


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592 


101  ATLANTIC  REPORTBB 


(U4. 


"To  proTide  for  collecting  and  paying  over  the 
amoant  of  compensation  adjudged  to  each  per- 
son entitled  •  ♦  •  before  any  street,  square, 
lane  or  alley,  in  whole  or  in  part,  ehall  be  so 
opened,"  etc 

It  authorizes  the  dty  to  acquire  the  fee- 
simple  interest  in  any  land  for  the  purpose 
of  opening,  eta,  the  street  That  part  of 
the  section  says  nothing  whatever  about 
grading,  paving  or  curbing. 

Later  the  section  provides  under  the  sub- 
division "(B)  Grade  Line  of  Streets"  for 
grade  lines,  and  under  subdivision  "(C)  Grad- 
ing, Paving,  Curbing,  etc.,  Streets"  it  spedflc- 
ally  gives  authority  "to  provide  by  ordinance 
for  grading,  shelling,  graveling,  paving  and 
curbing,"  or  for  regrading,  etc.,  of  a  street, 
lane  or  alley  "now  condemned,  ceded,  open- 
ed as  a  public  highway,  or  which  may  here- 
after be  condemned,  ceded,  opened,  widened, 
straightened,  or  altered,"  etc.  Then  under 
subdivision  (D)  it  authorizes  the  dty  to  pro- 
vide by  general  ordinance,  subject  to  section 
85,  for  grading,  graveling,  shelling,  paving, 
or  curbing  or  for  regrading,  etc.,  of  any 
street,  lane,  or  alley,  whenever  the  owners 
of  a  majority  of  the  front  feet  of  property 
binding  such  street,  etc.,  shall  apply  for  the 
same,  etc.  There  are  thus  made  distinct 
provisions  for  opening,  etc.,  streets,  from 
those  in  reference  to  grading,  paving,  and 
carbtng. 

We  have  at  some  length  referred  to  the 
charter,  as  It  seems  to  us  its  provisions  set- 
tle the  question,  independent  of  authority. 
When  this  ordinance  was  passed  (1900)  this 
section  was  the  same  as  what  we  have  stat- 
ed above,  and  the  revised  edition  of  the  char- 
ter only  makes  the  subdivisions  and  refers  to 
the  original  acts  and  dedsions  of  the  courts 
for  convenience.  It  Is  difficult  to  read  those 
provisions  of  the  charter  and  reach  a  con- 
clusion other  than  that  the  Legislature  in- 
tended the  acquisition  of  the  land  for  a 
street  before  it  was  graded  and  paved.  This 
proceeding  was  begun  under  what  is  above 
referred  to  as  subdivision  (A),  and  not  under 
subdivision  (B).  At  the  time  the  ordinance 
was  passed  there  was  no  provision  in  the 
charter  for  an  ordinance  to  include  the  open- 
ing and  grading  of  a  street,  but  it  was  dear- 
ly intended  to  require  the  dty  to  first  con- 
demn the  land  tor  the  opening  (if  It  was  not 
dedicated  or  otherwise  acquired),  and  then 
afterwards  provide  for  the  grading,  paving, 
and  curbing.  It  is  true  that  Act  1012,  c. 
32,  {  175,  which  relates  to  the  duties  of  the 
commissioners  for  openlpg  streets,  was 
amended  to  read: 

"Whenever  the  mayor  and  dty  conndl  shall 
hereafter  by  ordinance  direct  the  commissioners 
for  opening  streets  to  lay  out,  open,  extend, 
widen,  straighten,  grade  or  dose  up,  in  whole 
or  in  part,  any  street,"  etc. 

— but  that  act,  which  made  a  number  of 
changes,  expressly  provided  that: 

"Nothing  herein  contained  shall  be  construed 
to  affect  any  right  or  liability  of  any  party  ac- 
crued, or  any  proceeding  begun  or  pending  prior 
to  the  twssage  of  this  act,  but  all  such  rights 


shall  remain  and  such  proceedings  shall  contin- 
ue, in  the  same  manner,  and  to  be  of  the  same  ef- 
fect, as  if  the  provisions  hereinabove  mentioned 
had  remained  as  they  were  prior  to  the  passage 
of  tbU  act" 

Then  it  .was  expressly  limited  to  a  case 
when  the  mayor  and  dty  council  "shall  here- 
after by  ordinance  direct,"  etc.  But  regard- 
less of  that  it  is  clear  that  the  Legislature 
Itself  made  a  distinction  between  opening  and 
grading,  paving  or  curbing,  and  therefore  it 
is  difficult  to  see  how  an  ordinance  for  open- 
ing a  street  can  be  construed  to  include  the 
grading,  paving  or  curUng.  Indeed,  until  the 
dty  acquires  title  to  the  land  to  be  used  for 
the  street,  a  number  of  practical  difficulties 
suggest  themselves.  Just  how.  In  assessing 
benefits  in  a  case  lltce  this,  the  cost  of  paving 
a  street  can  be  accurately  ascertained  has  not 
been  made  clear.  As  we  have  seen  from  the 
charter,  there  are  a  number  of  materials 
which  can  be  used,  either  of  which  will  be  a 
compliance  with  the  statute,  and  the  kind  of 
material  used  is  a  very  important  matter,  as 
the  cost  must  depend  upon  that  It  may  be 
a  long  time  before  the  street  Is  paved,  and 
prices  necessarily  vary.  If,  for  example,  the 
price  is  estimated  now,  and  the  street  is  not 
paved  for  a  year  or  more,  who  can  say  that 
the  price  may  not  be  greatly  reduced  by  that 
time?  In  that  instance  the  property  owner 
would  sustain  the  loss,  but,  on  the  other  hand. 
If  the  paving  had  been  estimated  several 
years  ago,  the  probabilities  are  that  by  this 
time  the  cost  of  the  material  has  greatly  In- 
creased. Judge  Miller  said  in  Dashldl  v. 
BalUmore,  45  Md.  615,  626 : 

"A  street  may  be  and  often  is  opened  and 
condemned  for  many  years,  before  any  steps 
are  taken  to  pave  it 

In  our  Judgmmt  the  ordinance  under  wbidi 
these  proceedings  .were  instituted,  and  the 
statutes  then  in  force,  must  control,  and  the 
ordinance  did  not  indude  grading,  paving, 
and  curbing. 

Our  examination  of  the  authorities 
strengthens  the  views  we  liaTe  on  the  sub- 
ject It  was  said  in  Seed  ▼.  City  of  Toledo, 
18  Ohio,  161: 

"By  the  term  'opening*  we  do  not  understand 
the  improvement  of  a  street  or  highway  by  grad- 
ing, culverting,  etc.;  the  term  is  generally  (we 
thmk  always)  clearly  distinguishable  from  such 
kind  of  improvement  The  term  'opening*  re- 
fers to  the  throwing  opatto  the  public  what 
before  was  appropriated  to  individual  use,  ana 
the  removing  of  such  obstructions  as  exist  m 
the  surface  of  the  earth,  rather  than  any  artifi- 
cial improvement  of  the  surface.  And  we  think 
in  the  charter  this  distinction  is  very  clearly 
drawn." 

Or,  as  said  in  S  Dillon  on  Mtinc.  Cor.  (5th 
Ed.)  {  1042: 

"So  authority  to  open  a  ttreet  and  antt*  <ke 

damages  on  the  property  benefited  does  not  give 
the  power  to  assess  for  anything  more  than 
opening  the  street  and  paying  for  the  right  of 
way;  it  does  not  include  the  power  to  assess 
other  property  for  the  improvement  of  the  street 
by  grading,  culverting,  and  the  like." 


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PATTERSON  ▼.  MAYOR,  ETC.,  OF  CITT  OF  BALTIMORE 


593 


In  Mnnldpal  Corporations  in  Maryland,  by 
the  present  Attorney  General  (section  12)  It 
la  said: 

"The  two  systems  for  opening  and  condemn- 
ing streets  and  for  grading  and  paving  them  are 
essentially  different  from  each  other.  They  are 
provided  for  b^  different  lavs  and  ordinances, 
executed  by  different  ofScers  and  governed  by 
different  rules  and  regalations." 

He  referred  to  Baltimore  v.  Porter,  18  Md. 
284,  79  Am.  Dec.  686 ;  Dasblell  y.  Baltimore, 
46  Md.  616.  and  Baltimore  ▼.  Hook,  62  Md. 
371.  "While  It  Is  tme  the  conditions  in  those 
cases  differed  from  those  in  this  case,  the 
principles  are,  for  the  most  part,  the  same. 
In  Douglass  v.  Biggin,  123  Md.  18,  oa  page 
22,  90  AtL  1000,  on  page  1002,  ft  was  said : 

"It  constituted  an  opening  of  the  street  for 
the  use  of  the  lots  according  to  the  evident  sense 
in  which  the  term  'open'  was  used  in  the  reser- 
vation under  the  agreement  of  ^sale.  It  was 
f)lainly  employed  in  this  connection  as  equiva- 
ent  to  the  'laying  ouf  of  the  proposed  street, 
and  tills  has  been  defined  to  mean  'the  adoption 
of  outlines  or  locations,  and  not  the  work  of 
construction  or  improvement.'  Oberheim  v. 
Recside,  116  Md.  273  [81  Aa  690];  6  Words 
and  Phrases,  4037." 

See,  also,  Banman  y.  Ross,  167  U.  S.  648, 
686,  17  Sup.  Ct.  966,  42  L.  Ed.  270;  Hutt  y. 
Chicago,  132  lU.  352,  23  N.  E.  1010.  In  Bal- 
timore v.  Smith,  80  Md.  458,  31  AtL  423, 
which  case  only  Involved  benefits,  and  at  that 
time  the  <iaestlon  of  damages  for  opening  a 
street  was  not  open  for  review  on  appeal 
from  benefits  alone,  the  Jury  was  Instructed 
that  the  only  matter  for  their  Inquiry  was 
the  amount  of  increase  in  the  actual  market 
value  of  the  lots  fronting  on  the  street  opened 
which  would  be  caused  by  the  acquisition, 
through  those  proceedings  by  the  dty,  of  ti- 
tle to  the  land  in  the  bed  of  the  street  to  be 
used  as  a  public  street,  and  the  verdict  should 
be  limited  to  such  increase.  The  sixth  pray- 
er granted  in  Baltimore  v.  Megary,  122  Md. 
20,  89  Atl.  331,  was  to  the  same  effect 

Tltere  would  seem  to  be  no  doubt  that  the 
dty  would  still  have  the  power  to  assess  the 
property  owners  with  the  whole  cost  of  grad- 
ing, paving,  and  curbing  in  a  proceeding  tak- 
en for  paving,  etc.,  after  the  property  is  con- 
demned. Section  6  of  the  charter  so  au- 
thorizes. If  the  dty  has  no  authority  to  now 
assess  for  those  purposes,  but  did  so  In  this 
case,  we  are  not  prepared  to  say,  as  it  con- 
tends, that  it  would  be  estopped  from  doing 
so  again.  There  may  be  circumstances  under 
which  it  would  be  est(9ped  from  collecting 
the  same  assessment  twice,  but  in  a  case 
such  as  this,  where  the  property  owners  can 
undoubtedly  be  assessed  for  some  benefits,  if 
the  measure  of  benefits  established  be  er- 
roneous. It  would,  to  say  the  least,  be  diffi- 
cult for  them  to  be  protected.  But  Inde- 
pendent of  that,  if,  as  we  think,  the  benefits 
can  naw  pr<^rly  Indude  those  to  accrue 
from  the  street  after  it  is  "opened,  graded, 
paved,  and  curbed,"  the  appellee  has  no  right 
to  assess  the  appellants  with  them  In  this 
proceeding  and,  besides,  the  appellants  have 
101A.-38 


the  right  to  a  correct  interpretation  of  the 
law. 

[6]  It  was  conceded  by  the  appellee  that 
it  was  formerly  the  established  rule  not  to 
take  into  consideration  the  cost  of  grading, 
paving,  eta,  in  a  proceeding  of  this  kind,  for 
opening,  but  the  learned  solldtor  contends 
that  the  contrary  rule  has,  for  some  years, 
been  in  force.  We  find  no  change  in  the  law 
to  authorize  it,  which  is  applicable  to  this 
casa  We  have  already  indicated  that  the 
Acts  of  1912  and  1914  do  not  apply.  The  pro- 
vision quoted  above  from  the  act  of  1912  can 
leave  no  doubt  as  to  that  act,  and  we  find 
nothing'  in  the  act  of  1914  Indicating  an  in- 
tention on  the  part  of  the  Legislature  to  re- 
peal or  change  that  provision.  The  case  of 
Cahlll  y.  Baltimore,  129  Md.  17,  98  Atl.  235, 
was  relied  on  in  support  of  the  city's  conten- 
tion, but,  without  discussing  the  question  as 
to  burden  of  proof,  which  is  all  of  that  case 
which  can  be  claimed  to  be  applicable,  it  is 
suffident  to  say  that  that  proceeding  was  not 
instituted  until  after  the  act  of  1912  was 
passed,  and  hence  was  not  included  in  the 
saving  clause  of  that  act  as  this  one  was. 
As  seen  by  reference  to  the  first  appeal,  Balti- 
more V.  Cahlll,  126  Md.  596,  95  AU.  473,  the 
ordinance  was  not  passed  until  April,  1913. 

[7,  J]  We  do  not  understand  the  relevancy 
of  evidence  tending  to  show  that  the  dty  had 
not,  for  some  years,  been  exercising  its  pow- 
ers of  assessing  the  cost  of  grading  and  pav- 
ing on  the  abutting  owners.  If  a  municipali- 
ty has  the  power  to  grade  and  pave  under  ei- 
ther of  several  methods,  and  it  for  some 
years  adopts  one  of  them,  it  does  not  follow 
that  the  other  cannot  be  exercised,  unless  the 
charter  is  amended  or  the  law  prohibits  it 
Administrations  change,  and  frequently  with 
such  changes  entirely  new  ideas  are  intro- 
duced. Or  new  conditions  may  require  or 
suggest  changes.  But  this  case  shows  the 
dangers  of  such  evidence,  as  the  appellants 
contend  that  ordinances  of  the  dty  show  that 
the  witness  was  mistaken.  At  any  rate,  the 
evidence  ought  not  to  have  been  admitted.  It 
Is  proper  to  add  that  ,we  think  the  jury  would 
be  entitled  to  know,  in  cases  where  the  cost 
of  grading  and  paving  is  involved,  the  width 
of  the  driveway  and  sidewalks  to  be  adopted, 
if  the  benefits  are  attempted  to  be  shown  in 
advance  of  the  paving  and  curbing.  How  can 
a  Jury  teU  whether  in  the  particular  case  the 
driveway  is  to  be  40,  60,  66  or  other  number 
of  feet  when  the  street  condemned  Is  100  feet 
wide  and  it  is  left  to  the  dty  authorities  to 
determine  the  vrldth.  Such  evidence  as  that 
in  the  thirty-first,  thirty-second,  and  thirty- 
third  exceptions  was  therefore  inadmissible 
even  under  the  appellee's  theory  of  the  case 
as  to  the  measure  of  benefits.  Without  fur- 
ther pursuing  this  question,  we  are  of  the 
opinion  that  under  these  proceedings  the  city 
was  limited  to  benefits  as  the  result  of  the 
opening  of  the  street,  and  such  benefits  as 
grading,  paving,  and  curbing  cannot  be  con- 


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101  ATLANTIC  RBPORTEE 


(Md. 


sldered.  There  was  therefore  error  la  grant- 
ing the  city's  third  and  seventh  prayers. 
The  petitioner's  first  was  properly  rejected, 
as  It  was  entirely  too  broad.  Attorneys  can, 
and  frequently  do,  explain  to  juries  what  the 
law  is  If  not  in  conflict  with  the  granted  In- 
structions, or  no  Instructions  are  given  by  the 
court  on  the  particular  subject  Their  sec- 
ond was  granted.  The  third  was  properly  re- 
jected for  reasons  stated  above  In  passing  on 
the  exceptions  to  evidence.  The  fourth  was 
properly  rejected.  The  fifth  and  sixth  ought 
to  have  been  granted.  The  seventh  was  not 
necessary.  The  eighth  and  ninth  were  calcu- 
lated to  mislead.  The  tenth  could  not  have 
been  granted  under  the  theory  which  prevall- 
«d  in  the  lower  court,  as  It  would  have  been 
In  conflict  with  the  prayers  granted,  but  If  at 
the  new  trial  evidence  xs  Introduced  in  refer- 
«nce  to  the  grading,  etc.,  as  authorized  in 
Baltimore  t.  Smith,  80  Md.  on  page  471,  31 
Atl.  423,  an  instruction  as  to  Its  effect  will  be 
proper.  The  eleventh  was  granted.  The 
twelfth  and  thirteenth  are  Immaterial  In  view 
of  what  we  have  said. 

In  the  above  discussion  we  thlnlc  we  have 
sufficiently  referred  to  the  questions  Involved 
In  the  exceptions  to  evidence  not  already 
passed  on  to  relieve  us  of  discussing  them 
further. 

Rulings  reversed,  and  new  trial  awarded, 
the  appellee  to  pay  the  costs. 


^xn  Md.  M) 

BONAPARTE  ▼.  MAYOR  &  CITY  COUNCIIj 
OF  BALTIMORE  et  al.    (No.  25.) 

<Conrt  of  Appeals  of  Maryland.    June  27,  1917.) 

1.  EMINENT  Domain  iS=>134  —  Compensatiok 
— Value  of  Propebtt. 

The  measure  of  compensation  for  property 
-taken  for  a  public  use  is  the  actual  market 
value  of  the  property,  depending  upon  the  uses 
for  which  it  is  available  and  any  special  utility 
tending  to  enhance  its  value  in  the  market. 

2.  Eminent  Domain  «=>134— Compensation 
—Value  of  Propebtt. 

In  assessing  compensation  for  property  tak- 
•en  for  a  public  use,  the  availability  of  the  prop- 
erty for  a  particular  use  contributing  to  its 
market  value  is  not  to  be  ignored  merely  because 
■the  property  has  not,  in  fact,  been  applied  to 
that  use. 

3.  Eminent  Domain  «=9l31— Oompknbation— 

Value  of  Propebtt. 
In  assessinR  compensation  for  property  tak- 
en for  a  public   use,   the  effect  of  toe  public 
project  for  which  the  property  is  acquired  on 
the  value  of  property  must  be  disregarded. 

-4.  Eminent  Domain  ^=3184— Compensation— • 

Value  of  Propebtt. 
Where  property  taken  by  a  city  in  connec- 
•tion  with  the  widening  of  a  street  had  been  so 
altered  as  to  be  adapted  to  use  as  an  apartment 
house,  though  not  actually  devoted  to  that  pur- 
pose, and  the  availability  for  such  use  added  to 
its  rental  and  market  value,  and  this  was  the 
most  profitable  use  to  which  it  was  adapted,  the 
property  ownei-  was  entitled  to  Its  value  for 
such  use. 


6.  Eminent  Domain  €=3222<4)  —Assessment 
of  Compensation— Instbuctions. 
In  a  proceeding  to  assess  the  compensation 
for  property  taken  in  connection  with  the  wid- 
ening of  a  street,  an  instruction  that  the  jury 
were  to  consider  the  value  of  the  property  as 
though  no  such  opening  were  to  take  place  and 
the  surroundings  immediately  preceding  such 
opening  were  to  continue  indefinitely  did  not  ex- 
clude a  use  to  which  the  property  was  adapted 
from  the  consideration  of  the  jury,  though  the 
property  had  not  been  devoted  to  such  use,  but 
merely  emphasized  the  rule  that  the  jury  must 
not  regard  any  change  of  value  resulting  from 
the  street  improvement. 

6.  Eminent  Domain  <s=3262(5)  —  Assessment 
of  Compensation— Appeal— Habmless  Eb- 

BOB. 

In  a  proceeding  to  assess  compensation  for 
property  taken  for  a  public  use,  an  exception  to 
the  exclusion  of  evidence  was  rendered  imma- 
terial by  the  subsequent  admission  of  the  same 
proof. 

7.  Evidence  ^»142(1)— Value  of  Pbopkbtt— 
Selling  Peice  of  Otiieb  Pbopbrtt. 

In  a  proceeding  to  assess  the  compensation 
for  property  taken  in  connection  with  the  widen- 
ing of  a  street,  though  the  prices  realized  from 
voluntary  sales  of  similar  land  in  the  vicinity 
might  be  proved,  evidence  as  to  the  price  paid 
by  the  city  for  neighboring  property  bought  for 
the  purposes  of  the  street  improvement  was  not 
admissible,  as  such  a  sale  is  not  voluntary,  but 
is  in  the  nature  of  a  compromise. 

8.  JdBY  «=>34(2)  —  JUBT  TbIAL  — DXNIAL  OB 

Infbinoement  of  Rioht. 
Baltimore  City  Charter,  S  175c,  as  added  by 
Acts  1014,  c.  125,  providmg  that,  on  apped 
from  the  action  of  the  commissioners  for  open- 
ing streets  in  awarding  damages  or  assessing 
benefits  in  the  matter  of  opening  or  widening 
any  public  highway,  the  return  of  the  commis- 
sioners shall  be  prima  facie  evidence  of  the  cor- 
rectness of  the  damages  awarded  and  the  bur- 
den of  proof  shall  be  on  the  party  attacking 
such  award,  does  not  prejudice  a  property  own- 
er's right  to  a  jury  trial  given  him  by  Const, 
art.  3,  I  40,  requiring  the  payment  of  just  com- 
pensation to  be  agreed  upon  by  the  parties  or 
awarded  by  a  jury,  especially  in  view  of  sec- 
tion 179  of  the  charter  (Code  Pub.  Loc.  Laws, 
art.  4,  as  amended  by  Acts  1912,  c.  32),  specific- 
ally securing  the  right  to  a  jury  trial. 

Appeal  from  Baltimore  City  Court;  Chas. 
W.  Heuislef,  Judge. 

"To  be  offldally  reported." 

Proceedings  by  the  City  ot  Baltimore  and 
otliers  to  acquire  land  of  Charles  J.  Bona- 
parte for  the  widening  of  a  street  From  an 
inadequate  award  the  property  owner  ap- 
peals.   Reversed  and  remanded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  UBNIOK, 
STOOKBRIDGB,  and  CONSTABLE,  JJ. 

Paul  M.  Burnett  and  Clharles  J.  Bonaparte, 
both  of  Baltimore,  for  appellant  George 
Arnold  Frick,  of  Baltimore  (S.  S.  Field,  of 
Baltimore,  on  the  brief),  for  appellees. 

URNER,  J.  The  property  of  the  appellant, 
known  as  No.  407  St  Paul  street  In  the  dty 
of  Baltimore,  is  required  by  the  city  for  the 
widening  of  the  street  in  pursuance  of  ordi- 
nances providing  for  that  Improvement  In 
the  proceeding  for  the  condemnation  of  tht« 
property,  which  consists  of  a  lot  of  ground. 


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BONAPARTE  t.  MAYOR,  ETC.,  OF  BALTIMORE 


595 


owned  by  tbe  appellant  In  fee  simple  and  Im- 
proved with  a  building  used  for  residence 
parposes,  the  commissioners  for  opening 
streets  awarded  to  the  owner,  as  fall  com- 
pensation for  the  property  taken,  the  snm  of 
$5,335.85.  On  appeal  by  the  owner  to  the 
Baltimore  city  court,  the  award  was  increased 
to  $6,700  by  the  verdict  of  a  jury.  Believing 
this  revised  valuation  to  be  still  inadequate, 
the  owner  has  brought  the  case  to  this  court 
for  the  review  of  certain  rulings  to  which 
he  excepted  on  the  theory  that  they  bad  the 
effect  of  unduly  restricting  the  award. 

It  was  proved  that  the  appellant  has  ex- 
pended in  the  purchase  and  permanent  im- 
provement of  the  property  at  least  the  snm 
of  $11,000.  TUbe  building  has  been  rented  as 
a  whole  to  successive  tenants.  Extensive  al- 
terations and  additions  made  by  the  appellant 
have  adapted  tbe  building  to  use  as  an  apart- 
ment house,  though  It  has  not  actually  been 
devoted  to  that  purpose.  The  real  estate  ex- 
perts who  testlfled  in  the  case  based  their  val- 
uations partly  upon  the  capitalization  of  the 
rent  currently  received  from  tbe  property. 
The  estimates  of  tbe  city's  experts  varied 
from  $5,980  to  $6,076,  while  the  experts  pro- 
duced by  the  appellant  valued  the  property  at 
amounts  rangins  from  $7,500  to  $8,600.  One 
of  the  latter  testlfled  that  the  buUdlng  was 
well  adapted  to  apartment  house  uses,  nnd 
that.  If  thus  employed,  it  would  yield  rentals 
indicating  a  property  value  of  $9,200.  In 
view  of  this  testimony  the  appellant,  by  his 
second  prayer,  requested  an  instruction  to  the 
Jury  that: 

"In  estimoting  the  valne  of  the  property  and 
the  amonut  to  be  awarded  to  the  appellant  as  its 
owner,  they  must  consider  all  the  uses  to  which 
the  said  property  could  have  been  applied  had 
no  such  public  improvement  as  that  for  which 
it  is  taken  been  determined  upon  by  the  mayor 
and  city  council,  and  must  award  the  appellant 
what  they  believe  would  have  been  its  value  un- 
der the  circumstances  mentioned,  if  employed 
for  the  most  profitable  use  for  which  they  may 
find  it  could  have  been  applied,  whether  it  has 
in  fact  been  applied  to  such  use  or  not." 

This  prayer  was  refused. 

[1-J]  The  measure  of  the  compensation  to 
which  tbe  appellant  Is  entitled  in  this  pro- 
ceeding is  the  actual  market  value  of  the 
property  condemned.  Its  market  value  de- 
pends upon  the  uses  for  which  it  is  available, 
and  any  special  utility  which  may  tend  to  en- 
hance Its  value  in  tbe  market  is  a  proper  ele- 
ment to  be  considered.  Tbe  availability  of 
tbe  property  for  a  particular  use,  contribut- 
ing to  its  market  value,  is  not  to  be  ignored 
merely  because  it  has  not  in  fact  been  ap- 
plied to  that  use.  Tbe  valuation  for  con- 
demnation purposes  must  disregard  the  elTect 
of  the  public  project,  for  which  the  property 
is  acquired,  but  must  take  into  consideration 
all  tbe  uses  to  which  it  is  capable  of  being 
applied  at  tbe  time  of  the  appropriation  and 
which  affect  its  marketability.  Consolidated 
G.,  E.  L.  &  P.  Ck).  V.  Baltimore,  130  Md.  20, 
99  Atl.  968;  Baltimore  v.  CarroU,  128  Md. 
73,  96  AU.  1076;  Brack  v.  Baltimore,  125  Md. 


378,  93  Atl.  994,  Ann.  Cas.  1916E,  880;  Id., 
128  Md.  437,  97  AtL  548;  Baltimore  v.  Gar- 
rett, 120  Md.  613,  87  AU.  1057;  Callaway  v. 
Hubner,  99  Md.  529,  58  Atl.  362 ;  Baltimore 
V.  Smith,  80  Md.  458,  31  AU.  423 ;  Patterson 
V.  Baltimore,  101  Atl.  589. 

[4]  Applying  the  principles  Just  stated  to 
the  present  case,  we  think  tbe  prayer  we 
have  quoted  should  have  been  granted.  There 
is  uncontradicted  evidence  that  tbe  appel- 
lant's building,  as  now  c<Migtructed,  is  special- 
ly adapted  for  use  as  an  apartment  house, 
and  that  lbs  availability  for  such  use  adds 
to  the  present  rental  and  market  value  of 
the  property.  This  element  of  value  arises 
from  the  existing  plan  and  structure  of  the 
building.  It  is  not  contingent  upon  any  ma- 
terial change  of  conditions  with  resi)ect  to 
the  land  or  the  Improvements.  It  is  based  up- 
on a- practical  nnd  presMit  utility  which,  as 
the  evidence  tends  to  show,  directly  and  im- 
mediately affects  the  value  of  the  property  in 
the  open  market.  The  fact  that  the  building 
has  been  devoted  to  a  less  profitable  use  than 
the  one  for  which  it  is  shown  to  be  specially 
designed  does  not  preclude  the  owner  from  be- 
ing paid  for  his  property  upon  the  basis  of 
its  actual  market  value  for  the  most  profit- 
able use  to  which  it  is  now  adapted.  This  ' 
was  the  theory  of  the  proposed  instruction, 
and  we  think  the  appellant  was  entitled  to 
have  it  distinctly  stated  to  tbe  Jury.  It  was 
not  so  presented  by  any  at  the  granted 
prayers. 

[i]  There  were  eight  prayers  offered  on  be- 
half of  the  appellant,  ttiree  of  which  were 
refused.  Including  tbe  one  to  which  we  have 
referred.  We  find  no  error  in  the  rulings  on 
the  other  rejected  prayers.  Tbe  instructions 
proposed  by  the  city  were  properly  granted. 
The  first  was  the  only  one  subjected  to  criti- 
cism as  to  Its  form.  It  instructed  the  Jury 
that  the  market  value  of  the  property  con- 
demned should  be  estimated  as  of  the  time 
of  this  proceeding,  and  without  reference  to 
any  change  in  the  value  of  the  property  which 
may  have  been  occasioned  by  the  fact  that  St 
Paul  street  is  to  be  widened  and  opened,  and 
that— 

"in  other  words,  the  jury  are  to  consider  its  val- 
ue as  though  no  such  opening  were  to  take  place, 
and  the  surroundings  immediately  preceding 
such  opening  were  to  continue  indefinitely." 

The  latter  part  of  the  prayer,  wMch  we 
have  quoted,  is  objected  to  on  the  theory  that 
the  word  "surroundings,"  as  therein  employed, 
had  reference  to  the  existing  utilization  of 
the  building,  and  that  tbe  prayer  had  the  ef- 
fect of  instructing  the  Jury  that  no  other  use 
of  which  It  was  susceptible  could  enter  into 
their  appraisement.  This  is  not  our  under- 
standing of  the  purpose  and  meaning  of  the 
prayer.  Its  object  was  to  emphasize  the 
rule  that  the  Jury  were  not  to  regard  any 
change  of  value  resulting  from  tne  street  im- 
provement for  which  the  property  is  being 
condemned,  but  that  they  were  to  estimate 
the  value  as  though  the  street  were  not  to  be 


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101  ATLANTIC  BEPORTEE 


(Md. 


widened  and  its  pre-existing  situation  in 
lefereuce  to  tte  property  were  to  continue. 
As  thus  understood,  the  prayer  Is  not  ob- 
jectionable. 

[8,  7]  Two  exceptions  were  reserved  to  tlio 
exclusion  of  evidence  offered  by  the  appel- 
lant One  was  rendered  immaterial  by  the 
admission  of  the  same  proof  at  a  later  stage 
of  the  case.  The  other  exception  was  taken 
to  the  refusal  of  the  court  to  allow  the 
appellant  to  prove  the  price  at  which  a 
neighboring  property  bad  t)een  bought  by  the 
dty  for  the  purposes  of  the  street  improve- 
ment for  which  the  appellant's  property  is 
being  acquired.  This  proffer  was  made  as 
part  of  the  cross-examination  of  a  witness 
for  the  dty  who  had  testified  to  a  former 
sale  of  the  other  property  mentioned  as  re- 
flecting upon  the  value  of  the  property  in- 
volved In  this  proceeding.  Objection  was 
made  to  the  proposed  inquiry  on  the  ground 
that  the  sale  to  whldi  it  referred  was  not 
voluntary,  but  was  made  with  a  view  to  ob- 
viating the  impending  condemnation,  and 
was  therefore  not  a  reliable  Indication  of 
the  real  value  of  the  property.  It  is  a  set- 
tled rule  that  In  an  investigation  as  to  the 
market  value  of  land,  the  prices  realized 
from  voluntary  sales  of  similar  land  in  the 
vicinity  may  be  proven  either  on  direct  or 
cross  examination  of  witnesses  conversant 
with  the  facts.  Patterson  v.  Baltimore,  127 
Md.  241,  86  AU.  4S8;  Baltimore  v.  Smith, 
80  Md.  473,  31  AU.  423.  The  sale  to  which 
the  exception  refers  was  evidently  not  a 
voluntary  sale  within  the  meaning  of  the 
rule  Just  stated.  The  reasons  for  the  exclu- 
sion of  such  a  sale,  as  evidence  of  value,  are 
well  stated  in  a  discussion  of  the  question 
in  Lewis  on  Eminent  Domain  (2d  Ed.)  i  447, 
as  follows: 

"What  the  party  condemning  has  paid  for  oth- 
er property  is  incompetent.  Such  sales  are  not 
a  fair  criterion  of  value,  for  the  reason  that 
they  are  in  the  nature  of  a  compromise.  They 
are  affected  by  an  element  which  does  not  enter 
into  similar  transactions  made  in  the  ordinary 
course  of  business.  The  one  party  may  force  a 
sale  at  such  a  price  as  may  be  fixed  by  the 
tribunal  appointed  by  law.  In  most  cases  the 
same  party  must  have  the  particular  property, 
even  if  it  costs  more  than  its  true  value.  The 
fear  of  one  party  or  the  other  to  take  the  risk 
of  legal  proceedings  ordinarily  results  in  the 
one  party  paying  more  or  the  other  taking  leas 
than  is  considered  to  be  the  fair  market  value  of 
the  property." 

The  view  that  such  sales  are  not  competent 
evidence  of  value  is  well  supported  by  ad- 
judications. Cobb  V.  Boston,  112  Mass.  181; 
providence,  etc.,  R.  Co.  v.  Worcester,  155 
Mass.  40,  29  N.  E.  56 ;  Peoria  Gas  Light  Co. 
V.  Peoria  Term.  Ry.  Co.,  146  111.  372,  34  N. 
E.  550,  21  L.  R.  A.  .373 ;  Chicago  &  Alton  R. 
R.  Co.  V.  Scott,  225  111.  352,  80  N.  E.  404; 
Howard  v.  Providence,  6  R.  I.  516. 

[8]  The  city's  third  prayer  refers  to  the 
provtelon  of  section  175C  of  the  city  charter, 
as  enacted  by  chapter   125  of  the  Acts  of 


1914,  to  the  effect  that  tiie  return  of  the 
commissioners  for  opening  streets  is  prima 
fade  evidence  in  the  case  of  the  correctness 
of  the  amoimt  of  damages  awarded,  and  the 
burden  of  proof  is  on  the  party  asserting 
that  the  amount  should  be  less  or  more  than 
that  reported  by  the  commissioners.  It  is 
suggested  that  this  provision  Is  In  violation 
of  section  40,  art  3,  of  the  Constitution  of 
the  state,  which  requires  the  payment  of 
"just  compensation"  in  such  cases  "to  be 
agreed  upon  by  the  parties,  or  awarded  by 
a  jury."  The  appellant's  right  to  a  jury 
trial,  upon  the  question  as  to  the  compensa- 
tion to  be  awarded  him  for  the  property 
condemned,  is  spedflcally  secured  by  section 
179  of  the  dty  charter  (Code  Pub.  Loc.  Laws, 
art  4,  as  amended  by  Acts  1912,  c.  32),  and  in 
our  judgment  that  right  is  not  prejudiced  by 
the  section  first  dted.  The  purpose  of  sec- 
tion 175C  is  simply  to  attach  tlie  presumption 
of  correctness  to  the  report  of  the  commis- 
sioners, as  against  an  appeal  by  either  the 
city  or  the  property  owner.  This  regulation 
is  entirely  consistent  with  the  right  afforded 
the  owner  to  prove,  and  with  the  duty  im- 
posed upon  the  jury  to  determine,  the  true 
amount  of  the  just  compensation  to  be 
awarded. 

The  rulings  are  all  approved  except  as  to 
the  refusal  of  the  appellant's  second  prayer. 

Ruling  reversed,  with  costs,  and  case  re- 
manded fbr  a  new  trial. 

''™°°"°°  (tn  Md.  IT) 

BAE(R  V.  KAHN  et  aL    (Xo.  24.) 
(Court  of  Appeals  of  Maryland.    June  27, 1917.) 

1.  TBUSTS  «=>177— ASStTMPnON  OF  JUBIBDIO- 
TION  BT  COtJBT— POWEBS  Ot  TbUSTEE. 

Whatever  the  powers  of  a  trustee  may  be, 
under  the  wUL  after  the  court  has  assumed  ju- 
risdiction of  the  trust,  the  trustee's  powers  are 
so  far  changed  that  the  sanction  of  the  court 
must  h«  secured  for  all  acts. 

2.  Trusts  <^=3l77— Assuhfxioii  or  Jubudio- 

TION  BT  COUBT. 

Where  the  court  not  only  assumed  jurisdic- 
tion of  the  trust  but  directed  the  trustee  to  re- 
port annually  the  securities  in  whidi  the  trust 
estate  was  invested  for  approval,  the  discretion- 
ary power  given  the  trustee  to  invest  in  such  se- 
curities as  he  saw  fit  was  abrogated. 

3.  Tbtjstb  C=>177— Discbetionabt  Powbes— 

iNTEBrERENCE  BT  COUBT. 

Where  the  discretionary  power  conferred  up- 
on a  trustee  is  honestly  and  reasonably  exercised, 
a  court  of  equity  has  no  right  to  interfere. 

4.  Tbusts  <S=177— Abuse  of  Discbktion  by 
Tbustee— Evidence— SuFFiciEwcT. 

The  alleged  refusal  of  a  trustee  to  disdoee 
to  the  beneficiary  the  securities  in  which  the  es- 
tate was  invested  failed  to  disclose  such  want  of 
good  faith,  or  arbitrary  exercise  of  discretionary 
powers  (dven  trustee  under  the  will,  as  would 
justify  the  court  in  assuming  supervisory  juris- 
diction, where  the  record  disclosed  that  the  es- 
tate was  invested  in  securities  which  received 
the  approval  of  the  court 

5.  Trl'sts  i&=3217(l)— Giving  Infobsjatioh  to 
Beneficiaby— Duty  of  Trubtee. 

The  request  of  the  beneficiary  that  be  l>e  in- 
formed of  the  security  in  whidi  the  estate  was 


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BAER  ▼.  KAHN 


597 


invested  was  reasonable,  and  the  Information 
should  have  been  given,  if  at  no  other  time,  when 
the  trustee  accounted  for  and  paid  over  to  the 
beneficiary  the  interest,  profits,  and  income  from 
the  trust  estate. 
6.  Tbustb  «=»177— Abuse  or  Disokstion  bt 

TBUBTBE— EJVIDENCB— SumCIENOY. 

If  information  as  to  securities  in  which  the 
estate  is  invested  be  necessary  to  ascertain 
whether  the  trustee  is  executing  the  trust  prop- 
erly, a  court  of  equity  should,  upon  application, 
order  the  information  to  be  given ;  but  until  this 
is  done,  and  it  is  found  that  the  trustee  is  not 
administering  the  trust  in  good  faith,  or  is  abus- 
ing the  discretionary  power  granted  him  under 
the  will,  the  court  should  not,  against  his  wishes, 
assume  supervisory  juriadieUon  of  the  trustee's 
discretionary  powers. 

Appeal  from  Circuit  Gonrt  Na  2  of  Balti- 
more City;   Henry  DulTy,  Judge. 

Bill  by  Lena  Kalm  and  another  against 
Lewis  Baer,  trustee.  Prom  an  order  of  the 
court,  assuming  Jurisdiction  of  the  trust  es- 
tate, and  from  an  order  directing  the  trustee 
to  pay  scdidtor's  fees,  the  trustee  appealR. 
Orders  reversed,  and  bill  dismissed,  with 
costs  to  appellant. 

Argued  before  BOYD,  G.  J.,  and  BRISCOE, 
BUBKE,  THOMAS,  PATTISON,  URNSSl, 
8TOCKBRIDGE,  and  CONSTABLE,  JJ. 

Chester  P.  Morrow  and  Alfred  S.  Nlles, 
both  of  Baltimore  (Carlyle  Barton,  of  Balti- 
more, on  the  brief),  for  appellant  Allan  H. 
Plsher,  of  Baltimore  (Samuel  J.  Fisher  and 
Fisher  &  Fisher,  all  of  Baltimore,  on  the 
brief),  for  appellees. 

PATTISON,  J.  The  appeal  in  this  case 
Is  from  two  orders  of  the  circuit  court  No. 
2  of  Baltimore  City.  By  the  first  of  these 
orders  the  court  assumed  Jiurlsdlctlon  of  the 
trust  estate  of  Lena  Kahu.  The  second  di- 
rected the  trustee  to  pay  to  her  solicitor  for 
bis  services  the  sum  of  $100,  $75  of  it  to  be 
paid  out  of  the  corpus  of  the  estate,  and  $25 
out  of  the  Income.  The  facts  alleged  In  the 
bin  filed  by  the  appellees  are  substantially 
as  follows: 

Lewis,  Moses,  and  Solomon  Baer  for  a 
number  of  years  succesafully  conducted  the 
hide,  fur,  and  wool  business  in  the  city  of 
Baltimore  under  the  firm  name  of  Lewis 
Baer  &  Co.  In  1905  the  firm  purchased  about 
$9,000  of  the  capital  stock  of  B.  Eahn  &  Bros. 
Company,  a  corporation  of  whlc^  Benjamin 
Kahn,  husband  of  Lena  Kahn,  was  manager. 
This  corporation  was  not  prosperous,  and  as 
a  result  of  said  investment  Lewis  Baer  & 
Co.  lost  about  $3,000.  This  loss,  it  is  aUeged, 
produced  an  unfriendly  feeling  on  the  part 
of  Lewis  Baer  for  both  his  sister  and  her 
husband,  Benjamin  Kahn,  in  consequence  of 
which,  he  wrongfully  contended  that  the  said 
$9,000,  although  In  the  nature  of  an  Invest- 
ment, was  in  fact  a  loan  to  his  sister  and 
her  husband,  and  he  unreasonably  demanded 
and  received  from  them  their  note  for  the  pay- 
ment of  said  sum  of  $3,000,  the  amount  so  lost 


by  the  firm.  Solomon  Baer  died  in  1913.  In 
his  will  be  bequeathed  certain  sums  of  mon- 
ey In  trust  to  Lewis  and  Rebecca  Baer,  for 
the  benefit  of  Lena  Kahn  and  her  minor  chil- 
dren. A  petition  was  filed  by  those  named 
as  trustees,  asking  to  be  relieved  of  the  ad- 
ministration of  the  trust;  but  thereafter 
Lewis  Baer  consented  to  serve,  and  Samuel 
J.  Fisher,  the  appellees'  solicitor  In  this  case, 
was  appointed  to  serve  with  him  as  cotrustee. 
Lewis  Baer  afterward  withdrew  as  trustee, 
and  Fisher  thereafter  acted  as  sole  trustee. 
In  March,  1915,  Moses  Baer  died,  and  by  his 
wUl,  dated  May  27,  1914,  he  bequeathed  $2,- 
000  to  Arthur  Kahn,  $2,000  to  Lewis  Kahn, 
and  $8,000  to  Bosanna  Kahn,  children  of 
Lena  Kahn,  and  $24,000  to  Lewis  Baer,  in 
trust  for  Lena  Kahn.  The  provision  creating 
said  trust  Is  found  in  the  fourth  item  of  his 
will,  which  is  as  follows: 

"I  give  and  bequeath  unto  my  brother,  Lewis 
Baer,  the  sum  of  twenty-four  thousand  dollars 
($24,000.00)  in  trust  and  confidence,  to  hold  the 
same,  make  tuch  inoetiment*  or  reinvestmenU 
thereof  at  he,  in  hit  ditcretion,  may  tee  fit,  de- 
frajr  all  necessary  expenses  thereon,  and  pay  the 
net  income  arising  therefrom,  quarterly,  unto  my 
sister,  Lena  Kahn,  for  and  during  the  term  ol 
her  natural  life.  •  •  •  Upon  the  death  of  my 
said  sister,  Lena  Kahn,  this  trust  shall  cease, 
and  said  property  and  estate  held  in  trust  at  the 
time  of  her  death  under  this  paragraph  of  my 
last  will  and  testament,  shall  then  vest  absolute- 
ly, free  and  dear  of  all  trusts,  in  ber  children 
then  living,  and  the  then  living  descendants  of 
any  deceased  child  of  my  said  sister,  Lena  Kahn, 
per  stirpes  but  not  per  capita  share  and  share 
alike,  absolutely." 

In  the  further  disposition  of  hla  property, 
one-third  of  his  estate  was  devised  to  bis 
wife,  Mamye  Baer,  and  after  making  smaller 
bequests  to  another  sister  and  several  nieces 
and  a  n^hew  he  gave  the  residue  of  his  es- 
tate to  his  brother  Lewis,  absolutely.  In  the 
seventh  clause  of  his  will  Is  found  the  follow- 
ing provisions: 

"I  empower  my  said  trustee  *  *  *  to  in- 
vest all  moneyt  or  fundi  held  In  trust  under  this, 
my  last  will  and  testament,  in  tuch  lecurities  at 
he  *  *  *  may  tee  fit,  and  to  change  the  in- 
vettment  thereof,  when,  at  often  and  in  tuok 
manner  at  my  taid  truttee  •  *  •  may  deem 
advitable.  I  also  authorize  and  empower  my 
said  trustee  •  *  ♦  at  any  time,  during  the 
existence  of  the  tmst  set  forth  in  this,  my  last 
will  and  testament,  to  sell,  assign  and  convey 
any  of  the  trust  property,  original  or  substituted 
held  under  this,  my  last  will  and  testament,  for 
the  purpose  of  investment,  reinvestment,  distri- 
bution, division,  or  any  other  purpose  whatso- 
ever, and  to  execute,  acknowl^ge  and  deliver 
any  deeds  or  instruments  of  writing  that  may  be 
necessary  to  carry  these  powers  into  effect,  and 
no  one  dealing  with  my  said  trustee  or  any  suc- 
cessor, appointed  by  a  court  of  competent  juris- 
diction, shall  be  required  to  see  to  the  applica- 
tion of  any  purchase  money." 

Several  days  after  the  death  of  Moses 
Baer  hla  will  was  read,  and  immediately 
thereafter,  as  the  bill  alleges,  Lewis  Baer 
"burst  Into  tears,"  and  told  his  sister  Lena 
Kahn  "that  the  sudden  death  of  his  two 
brothers  within  so  short  a  time  necessitated 


^saTixe  otbcr  mms  Me  aun«  topic  and  KBY-NUllBBR  la  aU  Key-Numherad  Otsasts  sad  Indaxw 


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598 


101  ATIANTIO  REPORTER 


(Md. 


the  withdrawal  of  an  unusually  large  amount 
of  cash  from  the  firm  of  Lewis-  Baer  &  Co., 
which  be  feared  would  cause  financial  dis- 
aster to  him,"  and  "that  if  he  had  the  amount 
which  he  had  lost  In  the  B.  Kahn  Bros.  Com- 
pany that  it  would  to  some  extent  help  him 
out  of  bis  difficulty."  It  was  then  that  Lewis 
Baer  informed  his  sister  that,  in  addition  to 
the  bequest  made  to  her  In  his  will,  Moses 
Baer  had  a  policy  of  insurance  on  his  life  for 
the  sum  of  $5,000,  which  upon  his'  death  was 
payable  to  her  and  her  daughter,  Rosanna, 
in  eqoal  shares,  "and  begged  her  to  assign 
that  to  him  in  part  payment  of  the  alleged 
indebtedness."  She  finally  agreed,  over  the 
protest  of  her  husband,  to  pay  $1,500  out  of 
the  proceeds  of  the  policy  upon  the  note  pro- 
Tionsly  given  by  her  and  her  husband.  It 
was  then  charged  that,  notwithstanding  the 
alleged  need  of  money  to  save  the  firm  from 
financial  difficulties,  Lewis  Baer  shortly 
thereafter  purcliased  an  automobile  for  tUs 
own  pleasure,  for  which  he  paid  about  $1,400. 
The  further  charge  was  made  against  Lewis 
Baer  that,  in  order  to  increase  the  residue  of 
the  estate  that  was  devised  to  him,  he  de- 
layed stating  his  final  account  as  executor, 
which  resulted  in  financial  loss  and  injury  to 
Lena  Kahn.  The  bill  then  alleges  that  on 
April  18,  1916,  she  requested  her  attorney, 
Mr.  Fisher,  to  write  Judge  Niles',  attorney 
for  tlie  defendant,  for  information  regarding 
the  manner  in  which  the  corpus  of  her  trust 
estate  would  be  Invested,  suggesting  that  as 
much  as  possible  of  It  be  Invested  in  ground 
rents,  yielding  a  net  income  of  from  5  to  3 
per  cent.,  and  that  the  estate  be  administered 
under  the  supervision,  direction,  and  control 
of  a  court  of  equity.  Mr.  Fisher  wrote  Judge 
Nlles,  as  requested,  and  received  in  response 
thereto  two  letters.  In  the  first  Judge  Niles 
stated  "that  his  letter  had  been  referred  tn 
Mr.  Baer";  and  in  the  second  "that  he  did 
not  represent  Mr.  Baer  in  the  matter  of  the 
trust  estate  of  Lena  Kahn,  and  suggested 
that  Mr.  Fisher  write  Mr.  Baer  direct,"  which 
he  did.  "Several  days  thereafter,  Mr.  Baer 
called  to  see  Mr.  Fisher,  and  Informed  him 
that  he  bad  procured  a  safe  deposit  box  ex- 
clusively for  the  wcurlties  of  this  trust  es- 
tate; but  he  refused  to  divulge  the  securities 
in  which  the  corpus  of  the  estate  had  been 
invested,  and  declined  to  ask  one  of  the 
equity  courts  of  the  city  to  assume  Jurisdic- 
tion of  the  trust."  On  July  5,  1916,  Mrs. 
Kahn  received  from  Lewis  Baer,  as  trustee, 
his  check  for  the  amount  then  due  and  owing 
to  her  as  income  from  the  trust  estate,  and 
accompanying  said  check  was  a  statement 
showing  how  a  part  of  said  funds  was  at  that 
time  invested.  Thereafter,  on  the  same  day, 
Mr.  Fisher,  at  the  request  of  his  client,  again 
wrote  the  trustee,  Mr.  Baer,  asking  how  the 
remainder  of  the  trust  fund  had  been  In- 
vested, and  asking  him  to  petition  to  a  court 
of  equity  to  as&ume  jurisdiction  of  said  trust. 


to  which  letter  no  answer  was  received,  eitlier 
by  her  or  her  attorney.  The  bill  concludes 
with  a  prayer,  asldng  the  court  to  assume 
Jurisdiction  of  the  trust,  and  that  the  trustee 
be  directed  to  administer  said  trust  ander 
the  supervision,  direction,  and  control  of  the 
equity  court 

Lewis  Baer  admitted  many  of  the  allega- 
tions of  the  bill,  but  denied  that  be  had  lost 
Ills  affection  for  his  sister  or  that  be  had  ever 
treated  her  with  rudeness  or  Incivility,  or 
bad  by  undue  pressure  induced  her  to  sign  the 
note  alluded  to,  or  to  make  pajrments  there- 
on, or  that  he  had  ever  refused  to  give  her 
or  her  counsel  any  information  "that  she  was 
entitled  to  receive,"  or  that  he  had  ever  made 
untruthful  statements  to  her  or  to  her  oonn- 
sel,  or  that  in  his  actions  as  trustee  he  had 
shown  or  that  he  would  show  any  spirit  of 
vlndlctlveness.  The  answer  then  avers  that 
he  is  not  impressed  with  the  safety  or  desira- 
bility of  such  ground  rents  as  can  now  be  had 
which  win  yield  5  or  6  per  cent,  net  upon  the 
money  invested.  He  then,  in  his  answer, 
gives  a  full  statement  showing  how  and  in 
what  securltes  the  entire  trust  estate  was  at 
such  time  Invested.  Ttte  answer  fnrthM 
avers  his  unwillingness  to  retire  voluntarily 
from  said  trusteeship,  as  it  was  his  brother's 
will  that  he  should  serve  as  trustee,  and  that 
in  his  opinion  the  provisions  found  in  the  will 
of  bis  brother  were  made  for  the  express  pur- 
pose of  confiding  the  management  of  the 
estate  and  the  investment  of  the  fands 
solely  to  his  Judgment,  and,  l)ecause  of 
the  wishes  of  his  brother,  expressed  not  only 
In  the  will,  but  to  him  personally,  and  because 
of  the  expense  that  would  necessarily  be  in- 
volved If  the  estate  was  administered  under 
the  supervhslon  of  the  court,  he  "does  not  feel 
Justified  in  giving  his  assent  to  the  adminis- 
tration of  the  trust  under  the  direction  of 
this  court." 

To  the  answer  a  general  replication  was 
filed,  and  thereafter  an  order  of  the  court 
was  passed,  at  the  Instance  of  the  plaintlfl^. 
granting  leave  to  take  testimony  orally  in 
open  court.  Upon  the  call  of  the  case,  on  the 
day  set  for  hearing,  counsel  for  the  plaintUF 
read  the  bill  filed ;  counsel  for  the  defendant 
thereupon  read  the  answer,  and,  tiavlng  fin- 
ished reading  the  answer,  said  to  the  court 
that  it  might  serve  to  explain  the  case  and 
somewhat  clarify  the  issues  if  he  made  a  brief 
statement  His  statement,  as  requested,  was 
then  made,  and  it  with  what  followed  at 
such  time,  was,  at  the  request  of  the  counsel 
In  the  case,  certified  to  by  the  court  Tbia 
certificate,  as  found  in  the  record,  la  as  fol- 
lows: 

"Counsel  for  the  defendant  thereupon  stated 
thnt  many  of  the  statements  contained  in  the 
bill  of  complaint  were,  in  his  opinion,  irrdevant 
but  that  it  was  true  that  the  three  brothers 
named  in  said  bill,  vis.,  Lewis  Baer,  Moses  Baer, 
and  Solomon  Baer,  had  engaged  in  busintss 
together;  that  Solomon  Baer  died  about  the 
year  1913,  leaving  I^wis  Baer,  one  of  his  tros- 
tees ;   and  that  Lewis  Baer  afterwards  resigneu 


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Ifd.) 


BASS  ▼.  KAHI7 


699 


(rom  said  trust.  The  counsel  farther  stated 
that  the  defendant  expected  to  prove  that  Mr. 
Moses  Baer,  at  the  time  when  Mr.  L«wig  Baer 
resigned  the  trusteeship  as  aforesaid,  said  to 
Lewis  Baer  that  he  hoped  that  Lewis  would  not 
resign  from  the  trust  which  would  be  imposed 
upon  him  by  the  will  of  said  Moses.  The  coun- 
sel further  stated  that  he  expected  to  prove  that 
Moses  Beer  had  told  Lewis  Baer  that  he  did  not 
wish  his  estate  to  be  administered  in  court, 
but  desired  that  the  expense  of  a  court  adminis- 
tration should  be  saved."  After  the  counsel  for 
the  defendant  had  made  these  statements,  the 
court  stated  that  "he  was  not  impressed  by  any- 
thing contained  in  them  as  being  sufficient  to 
prevent  the  court  from  assuming  jurisdiction." 
The  securities  belonging  to  the  said  trust  estate 
as  set  out  in  the  answer  were  shown  to  the 
court,  and  "certain  authorities  were  then  read 
to  the  court,  after  which  the  court  (wliile  ap- 
proving of  the  investments  made  by  the  trustee) 
stated  that  be  would  sign  an  order  assuming 
jurisdiction  of  the  trust.  The  court  further 
stated  that  all  trustees,  where  it  can  be  reason- 
ably done,  should  be  required  to  administer  their 
trusts  under  the  jurisdiction  of  the  court,  and 
to  report  under  the  thirty-first  eguity  rule.  No 
evidence  was  taken." 

Thereafter,  on  Fehmary  2,  1017,  the  conrt 
passed  an  order  assnmini;  jurisdiction  of  the 
trust  estate,  and  requiring  the  trustee  to  re- 
port to  It,  in  accordnnco  with  its  thlrty-flrst 
equity  rule;  and  on  the  5th  day  of  the  same 
month  the  court  passed  Its  second  order,  or- 
derlni?  and  directing  Lewis  Baer  to  pay  to 
Mr.  Fisher,  counsel  for  the  appellees,  the  sum 
of  $100  for  his  services,  and  that  $76  of  said 
fee  shonid  be  paid  out  of  the  corpus  of  said 
estate  and  $23  out  of  the  Income.  It  was 
from  the  action  of  the  court  in  granting  these 
orders  that  this  appeal  Is  taken. 

[1]  We  will  first  consider  the  action  of  the 
court  in  passing  the  order  of  February  2d. 
Under  it  the  court  assumed  Jurisdiction  of 
the  trust,  and  required  the  trustee  to  report 
to  it  under  its  thirty-first  rule.  In  Abell  y. 
AbeU,  75  Md.  64^  23  Afl.  74,  this  court,  in 
speaking  of  the  powers  of  the  trustees,  after 
the  court  has  assumed  Jurlsdictioin  of  the 
trust,  said: 

"Whatever  their  powe^  may  be  under  the 
will,  if  the  trusts ,  created  thereby  are  before 
such  a  court,  'and  a  decree  hns  been  made,  the 
powers  of  the  trustees  are  theilceforth  so  far 
changed  that  they  must  have  the  sanction  of  the 
court  for  all  their  acts.'  2  Perry  on  Trusts, 
S  474,  and  authorities  there  cited." 

In  the  later  case  of  Qottschalk.  v.  Mercan- 
tUe  Trust  Co.,  102  Md.  526,  62  Atl.  812,  tbU 
court  said: 

"If  tmstees  undertake  to  administer  their 
trust  without  seeking  the  aid  and  protection  of 
any  court,  they  may  exercise  the  discretion,  and 
execute  Uie  powers  conferred  on  them  by  the 
instrument  creating  the  trust,  and  eqiiity  wlU 
not  generally  interfere  with  them,  so,  long  as 
they  act  in  good  faith  and  with  fair  discretion. 
But  if,  upon  their  application  or  that  of  their 
cestui  que  trust,  with  their  consent,  a  court  of 
equity  by  an  appropHate  decree  assumes  ju'ria- 
dfction  of  the  trusts,  and  directs  them  to  be 
executed  under  its  direction  and  supervision,  the 
authorities  agree  that  the  situation  of  the  trus- 
'tees  is  thereby  so  far  changed  that  they  must 
thereafter  secure  the  sanction  or  ratifieation  of 
the  supervising  court  for  the  successive  steps  of 
jheir   administratiott   of  the   trust     Perry   on 


Trusts,  474;    Lewln  on  Trusts  (lltb  Ed.)  p. 
753." 

[2]  The  court  in  this  case  not  only  assumed 
a  general  jurisdiction  of  the  trust  estate,  but 
it  directed  the  trustee  to  report  to  it  annual- 
ly, under  its  thirty-first  rule.  By  this  rule 
the  defendant,  as  trustee,  was  required  to 
report  speclflcally  the  securities  in  which  the 
trust  estate  was  Invested,  that  the  same 
might  re<>eiTe  the  sanction  and  approval  of 
the  court  The  court  by  said  order  abridged 
the  discretionary  powers  of  the  trustee,  con- 
ferred upon  him  by  the  will  creating  the 
trust,  and  consequently  interfered  with  him 
In  the  exercise  of  such  powers.  As  to  the 
right  of  courts  to  interfere  with  the  exercise 
of  discretionary  jiowers  vested  in  trustees,  in 
the  administration  of  trust  estates,  it  is  said, 
in  39  Oyc.  316: 

"The  court  will  neither  enlarge  nor  restrict 
the  powers  given  the  trustee  by  tlie  instrument 
creating  the  trust,  •  •  •  nor,  except  where 
an  intention  of  the  settlor  that  the  execution 
of  the  trust  shall  be  under  the  supervisory  con- 
trol of  thp  court  is  manifest  in  the  instrument 
creating  the  trust  will  it,  of  its  own  motion  or 
at  the  instance  of  interested  parties,  interfere 
with  the  performance  of  the  duties  of  the  trus- 
tee, and  exercise  the  discretionary  powers  con- 
ferred upon  him,  unless  there  is  shown  bad 
faith  on  his  part,,  or  a  gross  and  arbitrary  use 
of  discretion,  or  a  complete  refusal  to  act  in 
the  premises." 

The  same  principle  is  laid  down  in  Shelton 
V.  King,  229  U.  S.  9i,  33  Sup.  Ct  687,  67  L. 
Ed.  1086,  where  it  is  said : 

"It  is  a  settled  principle  that  trustees  having 
the  power  to  exercise  discretion  will  not  be  in- 
terfered with,  so  loBg  as  they  are  acting  bona 
fide.  To  do  so  would  be  to  substitute  the  discre- 
tion of  the  court  for  that  of  the  trustee." 

See,  also,  the  cases  of  Sharon  t.  Simons, 
30  Vt.  458;  Larkin  v.  WikoS,  75  N.  J.  Eq, 
480,  72  Atl.  98,  79  AtL  365;  Browning  y. 
Stiles  (N.  J.  Ch.)  65  Aa  457;  Dillard  y.  DU- 
lard's  Ex'rs  (Va.)  21  S.  E.  669 ;  In  re  Naglee's 
Estate,  52  Pa.  154,  and  pther  cases  in  appel- 
lant's brief. 

[3]  The  law  as  stated  in  these  cases  is  also 
the  law  of  this  state.  In  Pole  y.  Pietsch  ft 
Thiede,  61  Md.  572,  this  court  said: 

"In  the  exercise  of  the  discretionary  power 
thus  conferred  on  the  trustees,  a  court  of  eq- 
uity has  no  right  to  interfere,  provided  it  u 
honestly  and  reasonably  exerdsed.  They  must, 
however,  act  in  good  faith,  having  a  proper  re- 
gard to  the  wishes  of  'the  testator,  and  the  na- 
ture and  character  of  the  trust  imposed  in 
them."  Claito  v.  Parker,  19  Yes,  1;  French 
y.  Davidson,  3  Madd.  806;  Kemp  v.  Kemp,  5 
tea.  849. 

And  it  is  said  in  the  later  case  of  Levi 
y.  Bergman,  94  Md.  209,  50  Atl.  516,  that: 

"It  must  be  conceded  that,  if  the  trustees  act 
in  the  attempted  exercise  of  their  discretion 
within  the  limitations  imposed  upon  them  by 
the  will  itself,  a  court  of  equity  cannot  inter- 
fere, provided  such  discretion  is  reasonably  and 
honestly  exercised." 

And  we  said  in  Gott&chalk  y.  Mercantile 
Trust  Co.,  sppra: 

"Equity  will  not  generally  interfere  with  them 
[trustees]  so  long  as  they  act  in  good  faith  aad 
with  fair  discretion." 


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101  ATLANTIC  RBPORTER 


(Mi 


The  hearing  in  this  case  was  upon  bill, 
answer,  and  replication,  without  proof,  and 
the  question,  therefore.  Is  whether  the  court, 
apon  the  application  of  the  principles  here 
stated,  was  authorized  to  interfere  with  the 
trustee  in  the  exercise  of  the  discretion  con- 
ferred upon  liim  by  the  will  of  his  brother. 
The  bUl  alleges  certain  acts  of  the  trustee, 
that  were  in  no  way  connected  with  the  ex- 
ecution of  the  trust,  as  tending  to  show  a 
hostile  feeling  towards  his  sister,  Mrs.  Kabn; 
bat  he  In  his  answer  denies,  in  substance,  any 
such  feeling,  and  alleges  that  be  still  has  a 
fraternal  afTectlon  for  her,  and,  although  the 
bill  alleges  that  she  suffered  financial  loss 
and  injury  because  of  his  delay  in  stating  his 
final  account  as  executor  of  his  said  deceased 
brother,  it  is  conceded  that  in  doing  so  he 
acted  within  the  law,  and  as  he  had  a  right 
to  da 

[4]  Under  the  will  of  Moses  Baer,  the  de- 
fendant, as  trustee,  is  given  broad  discre- 
tionary powers  in  the  management  of  the 
trust  estate.  He  Is  given  the  power  to  in- 
vest all  money  or  fnnds  of  the  trust  estate 
in  such  securities  as  he  may  see  fit,  and  to 
change  the  investmoit  when,  as  often,  and 
In  such  manner  *  *  *  as  he  may  deem 
advisable,  and  yet,  notwithstanding  these 
powers  so  vested  in  him,  we  find  bis  sister, 
the  plaintiff,  a  short  while  after  the  death 
of  the  testator,  suggesting,  tlirough  her  coun- 
sel, not  only  the  securities  In  which  he  should 
invest  the  trust  estate,  but  that  he  apply  to 
a  court  of  equity  to  assume  Jurisdiction  of 
the  administration  of  the  trust,  whereby  the 
sole  discretionary  power  would  no  longer  be 
lodged  in  him.  It  Is  dIs<3osed  by  the  answer 
that  he.  In  the  exercise  of  his  Judgment,  did 
not  deem  it  advisable  to  invest  the  estate 
in  tbe  securities  suggested  by  the  cestui  que 
trust;  and  he  refused  to  apply,  as  requested, 
to  the  equity  court  to  assume  Jurisdiction  of 
the  trust  It  is  also  alleged  that  he  there- 
after refused  to  disclose  to  her,  or  to  her 
counsel,  the  securities  in  which  the  estate 
was  at  such  time  invested.  In  answer  to 
this  he  states  that  he  did  not  refuse  "to  give 
her  or  her  counsel  any  information  that  she 
was  entitled  to  receive."  It  may  be  said  of 
this  answer  that  It  is  not  a  sufiicient  or  di- 
rect answer  to  the  charges  against  him  that 
be  had  refused  to  give  to  tbe  plaintiff  the 
Information  sought  by  her.  But,  neverth»- 
less,  it  Is  disclosed  by  the  record  that  at  such 
time  the  estate  was  invested  by  him  in  se- 
curities that  in  these  proceedings  received 
the  sanction  and  approval  of  tbe  court.  Tbe 
alleged  refnsal  of  the  defendant  to  Inform  the 
plaintiff  as  to  the  securities  in  which  the 
estate  was  Invested  is  practically  the  only 
act  of  the  defendant  to  be  considered  by  us 
in  determining  whether  be  has,  as  alleged, 
acted  in  bad  faith  and  has  abused  the  dis- 
cretionary power  lodged  in  Iiim  under  the 


will.  Justifying  a  court  of  equity  to  assume 
Jurisdiction  of  tbe  trust,  and  direct  the  trus- 
tee to  report  to  it  under  its  thirty-first  equity 
rule;  and  it,  we  think,  fails  to  disclose  such 
want  of  good  faith  or  arbitrary  action  on  the 
part  of  tbe  ti^ustee  in  tbe  exercise  of  his  dis- 
cretionary powers  as  to  warrant  sudi  actloa 
of  tbe  court. 

[B,  8]  We  may  add,  however,  that  the  re- 
quest of  a  cestui  que  trust  that  he  be  inform- 
ed by  the  trustee  of  the  securities  in  which 
the  estate  is  Invested  is  a  reasonable  one, 
and  one  that  should  be  granted,  and  tbe  In- 
formation given,  if  at  no  other  time,  when  the 
trustee  accounts  for  and  pays  over  to  tbe 
cestui  que  trust  the  interest,  profits  and  in- 
comes from  the  trust  estate,  to  which  he  may 
be  entitled;  and  if  such  information  I>e  nec- 
essary in  order  to  ascertain  whether  the  trus- 
tee is  executing  the  trust  fairly  and  without 
abuse  of  the  discretionary  power  reposed  Id 
him,  a  court  of  equity,  upon  being  applied  to, 
should  order  such  information  to  be  given; 
but  until  that  is  done,  and  it  is  found  that 
tbe  trustee  is  not  administering  tbe  trust  la 
good  faith,  or  is  abusing  tbe  discretionary 
power  granted  him  under  the  wUl,  the  court 
should  not,  against  his  wishes,  assume  su- 
pervisory Jurisdiction  of  the  trustee's  dis- 
cretionary powers. 

The  other  order,  aa  we  have  said,  directed 
the  trustee  to  pay  to  Samuel  J.  Fisher  the 
sum  of  $100  for  Ms  services  as  counsel  for 
the  plaintiff  in  these  proceedings,  $75  of 
which  was  ordered  to  be  paid  out  of  the  cor- 
pus of  the  estate,  and  tbe  balance,  $25,  out 
of  the  income  of  said  estate.  As  we  bold  in 
this  case  that  the  court  was  not  authorized 
to  assume  supervisory  Jurisdiction  of  the  ad- 
ministration of  the  trust  estate  mpon  the  facts 
presented  by  the  bill,  answer,  and  replication, 
the  order  directing  the  plaintiff's  counsel  to 
be  paid  out  of  the  trust  estate  was  erroneoas- 
ly  passed. 

There  is  a  motion  in  this  case  to  dismiss 
the  appeal  upon  several  grounds  therein 
stated;  but  none  of  them,  in  our  oplolon. 
Justify  a  dismissal  of  tbe  appeaL  It  follows 
therefore,  from  what  we  have  said,  that  tbe 
two  orders  appealed  from  will  be  reversed. 

Orders  reversed,  and  bill  dismissed,  witb 
costs  to  the  appellant 


(ISl  Md.  W 
POSTAL  TELEGRAPH  CABLE  CO.  v.  HAR- 
FORD COUNTY  COM'BS.  (No.  28.) 

(Court  of  Appeals  of  Marjiand.    June  27, 1917^> 

1.  Taxation  <8i=!>493(8)— Appeais— Rbvikw. 

The  Court  of  Appeals,  on  appeal  in  tax  pro- 
ceedings, is  confined  to  an  examination  of  the 
legal  princii|>leB  upon  which  tbe  aasessing  body 
acted,  and  in  the  alisence  of  errors  is  without 
power  to  disturb  the  assessment  or  revise  tbe 
valuation. 


AssFor  otbar  easn  w*  »ua»  tooio  and  KBY-NUUDBR  is  all  K«r-Numb«nd  DUuU  and  ladcxM 


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POSTAIi  TELBQKAPH  CABLE  CO.  T.  HABFOBD  COUNTY  OOM'RS 


601 


Z  Taxation  iQ  ,  i  101— Appbam  to  Statx  Tax 

GOIOUSalON   —  AUTDOBITT  TO  IllOBBASE  AS- 
BE8BMKNT. 

The  state  tax  commisaion,  ander  Acts  1914, 
e.  841,  on  appeal  from  an  order  of  the  county 
commissioners  denying  abatement  has  jurisdic- 
tion to  increase  the  assessment. 

5,  Taxation  «=9493(7>— Abatbmxnt  Fxockxd- 

INOS— AFFEALr— iRECOBD. 

The  state  tax  commission  is  under  no  obli- 
gation to  preserve  the  evidence  taken  at  a  hear- 
ing on  appeal  from  the  action  of  the  county 
commissioners  in  abatement  proceedings,  and 
appellant,  failing  to  take  steps  to  have  the  evi- 
dence preserved,  cannot  predicate  error  npon 
the  absence  of  such  evidence. 
4.  Taxation  4=>47(7>— CoBFOSATioNS— Gboss 

EIABRINOB— DOXTBUC    TAXATION. 

The  fact  that  a  telegraph  company  pays  a 
gross  earnings  tax  under  C!ode  Pub.  Oiv.  Laws, 
art.  81,  {  167,  does  not  make  an  assessment  on 
its  easements  in  public  highways  void  as  double 
taxation,  prohibited  by  Bill  of  Bights,  since 
•nch  gross  earnings  tax  is  not  a  tax  Imposed  up- 
on the  property  of  a  corporation. 

6.  Taxation    «=>396  —  Cobfobations— Gboss 

EABNINGB— DOUBLB    TAXATION. 

The  validity  of  an  assessment  of  the  ease- 
ment of  a  telegraph  company  in  public  highways 
is  not  affected  by  the  validity  or  invalidity  of 
any  gross  earning  tax  whidt  it  may  be  required 
to  pay. 

Appeal  from  Circuit  Court,  Harford  Coun- 
ty;  Wm.  H.  Harlan,  Judge. 

"To  be  offldally  reported." 

Proceedings  by  the  Postal  Telegraph  Cable 
Company  tor  tbe  reduction  of  a  tax  assess- 
ment. The  application  for  abatement  was 
refused  by  the  county  commissioners,  and  on 
appeal  to  the  State  Tax  Commission  the  as- 
sessmoit  was  increased,  from  which  order  an 
appeal  was  taken  to  the  circuit  court  From 
an  order  dismissing  the  appeal,  this  appeal 
la  taken.    Order  affirmed. 

Argued  before  BOYD,  O.  J.,  and  BRIS- 
COE, BURKB,  THOMAS,  PATTISON,  DR- 
NER.  and  CONSTABLE,  33. 

H.  Ralph  Cover,  of  Baltimore  (H.  Webster 
Smith,  of  Baltimore,  on  the  brief),  for  appel- 
lant. "Walter  W.  Preston,  of  Bel  Air,  for  ap- 
pellees. 

BTJRKB,  J.  The  Postal  Telegraph  Cable 
Company,  the  appellant,  is  a  corporation  or^ 
ganized  under  the  laws  of  Delaware.  It  ac- 
cepted the  advantages  and  obligations  of  the 
act  of  Congress  approved  July  24,  1866  (14 
Stat  221,  c.  230  [D.  S.  Oomp.  St  1916,  !§  10072- 
10077]),  entitled  "An  act  to  aid  in  the  con- 
struction of  telegraph  lines,  and  to  secure  to 
the  government  the  use  of  the  same  for 
postal,  military,  and  other  purposes."  It  has 
been  held  that,  whilst  the  companies  accept- 
ing the  provisions  of  that  act  may  use  the 
post  roads  of  the  coimtry,  the  act  was  not 
intended  to  interfere  with  state  sovereignty 
under  the  Constitution.  In  Pensacola  Tele- 
graph Co.  V.  Western  Union  Telegraph  Oo., 
96  U.  S.  1,  24  L.  Ed.  708,  the  court  said  that 
the  grant  under  this  act — 
"evidently  extends  to  the  public  domain,  the  mili- 
tary and  post  roads,  and  the  navigable  waters 
of  the  United  States.    These  are  aU  within  the 


dominion  of  the  national  goyemment  to  the  ex- 
tent of  the  national  powers,  and  are  therefore 
subject  to  legitimate  congressional  regulation. 
No  question  arises  as  to  the  authority  of  Con- 
gress to  provide  for  the  appropriation  of  private 
property  to  the  uses  of  the  telegraph,  for  no  such 
attempt  has  been  made.  The  use  of  public  prop- 
erty alone  is  granted.  If  private  property  u  re- 
quired, it  must  so  far  at  the  present  leg&lation 
is  concerned,  be  obtained  by  private  arrange- 
ment with  its  owner.  No  compulsory  proceed- 
ings are  authorized.  State  sovereignty  under 
the  Constitution  is  not  interfered  with.  Only 
national  privileges  are  granted." 

The  appellant  in  this  case  owned  certain 
property  located  in  Harford  county,  Md. 
This  property  was  assessed  for  purposes  ot 
taxation  for  the  year  1816  to  the  amount  ot 
$20,680.  The  property  consisted  ot  poles, 
erected  in  tbe  public  highways  of  the  coimty, 
and  copper  and  iron  wires  strung  upon  tiia 
poles.  It  applied  to  the  county  commlasion- 
ers'  for  Harford  coimty  for  an  abatement  ot 
the  assessment,  which  the  commissioners  re- 
fused to  grant  It  thereupon  appealed  to 
the  state  tax  commission  to  reduce  the  as- 
sessment and  a  hearing  of  the  subject-mat- 
ter of  the  appeal  was  had  before  that  body, 
which  on  October  20,  1916,  reversed  the  as- 
sessment of  the  property  of  the  appellant 
located  In  Harford  county,  and  assessed  the 
same  as  follows  for  the  year  1816,  and  or- 
dered and  directed  the  county  commissioners 
of  Harford  oonnty  to  enter  on  the  assessment 
books  of  Harford  county  for  the  purpose  of 
taxation  for  the  year  1916: 

First  District 
Telegraph  line  commencing  at  Little  Falls,  Bal- 
timore county  line,  to  Buck,  to  Cresswell,  to 
Third  district  line,  9  miles  30  feet  pole  line,  40 
poles  to  the  mile,  and  cross-arm  and  easements. 
360  poles  at  17.80 ?2,808  00 

9  miles  of  copper  wire  at  $20.00 180  00 

99  miles  of  iron  wire  at  $10.00 990  00 

$3,978  00 
Third  District 
Telegraph  line  from  First  district  line  at 
Cresswell  via  Schucks  Comer  to  Priestford 
Bridge  at  Deercreek,  Fifth  district  line,  10  miles 
30  feet  pole  line,  40  poles  to  the  mile,  and 
cross-arms  and  easements. 
400  poles  at  $7.80 $3,120  00 

10  miles  of  copper  wire  at  $20 200  00 

120  mUes  of  iron  wire  at  $10 1,200  00 

$4,520  00 
Fourth  District 
Sixteen  miles  30  feet  pole  line,  40  poles  to 
the  mile,  and  cross-arms  and  easements. 

640  poles  at  $7.80 $4,992  00 

256  miles  of  copper  wire  at  $20. . . .  5,120  00 
32  mUes  of  iron  wire  at  $10 820  00 

$10,432  00 
Fifth  District 
Two  lines — one  line  from  Pennsylvania  line 
near  Constitution  to  Fourth  district  line.  No. 
2  line  from  Priestford  Bridge  on  Deercreek  via 
Darlington  and  Berkley  to  Susquehanna  river 
at  Conowingo,  16  miles  30  feet  pole  line,  40 
poles  to  the  mile,  and  cross-arms  and  easements. 

600  poles  at  $7.80 $4,680  00 

75  miles  of  copper  wire  at  $20 1,.500  00 

118  miles  of  iron  wire  at  $10 1,180  00 


$7,360  00 


>For  other  gmw  «••  same  tople  and  KBT-NUUBBR  in  aU  iUy-Numbar«d  OUasts  aiid  ladeies 


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101  ATLANTIC  REPORTISR 


(Md. 


The  total  ralnatlon  placed  npon  the  prop- 
erty by  the  state  tax  commission  was  $26,- 
290.  It  therefore  appears  from  this  order  of 
the  state  tax  commission  that  the  assessment 
was  Increased  $5,600.  The  appellant  appeal- 
ed from  this  order  to  the  circuit  court  for 
Harford  county,  and  that  court,  on  the  27th 
of  December,  1916,  dismissed  the  appeal, 
with  costs.  From  that  order  the  appeal  in 
this  case  was  taken. 

The  act  of  1914  (chapter  841),  being  the 
act  by  whidi  the  state  tax  commission  was 
created,  allows  an  "appeal  to  court  on  [all] 
questions  of  law  only  from  decisions  of  the 
state  tax  commission  to  the  court  of  that 
county,  where  the  property  is  situated,  if 
real  estate  or  tangible  personal  property," 
etc.,  and  section  244  provides  that  all  "ap- 
peals from  any  action  of  the  state  tax  com- 
mlssloD  to  court,  as  authorized  by  section 
238  hereof,  shall  be  taken  within  thirty  days 
of  such  action  by  petition  setting  forth  the 
question  or  questions  of  law  wbldi  it  Is  de- 
sired by  the  appellant  to  review."  All  ap- 
peals In  Baltimore  City  must  be  to  the  Bal- 
timore city  court,  and  a  further  right  of  ap- 
peal to  this  court  Is  given  from  any  decision 
of  the  Baltimore  city  court  or  of  Qie  circuit 
courts  of  the  several  counties.  Such  appeals 
are  required  to  be  taken  within  ten  days 
from  the  final  Judgment  or  determination  of 
the  lower  court 

In  Its  petition  for  appeal,  the  appellant, 
as  required  by  the  act,  set  out  as  follows 
the  questions  of  law  which  It  desired  the 
circuit  court  for  Harford  county  to  review: 

First.  That  the  said  state  tax  commission 
of  Maryland  was  without  jurisdiction  to  in- 
crease the  assessment  levied  by  the  county  com- 
missioners of  Harford  county  in  the  proceed- 
ings which  were  then  pending  before  it. 

Second.  The  admissibility  in  evidence,  as  proof 
of  the  value  of  your  petitioner's  easements,  of 
testimony  that  the  Bankers'  &  Traders'  Tele- 
graph Company  had  paid  $3  per  pole  for  their 
right  of  way  20  years  ago. 

Third.  The  arbitrary  method  pursued  by  the 
state  tax  commission  of  Maryland  in  valuing  the 
alleged  easements  of  your  petitioner  at  $6,000; 
no  legally  sufficient  evidence  having  been  pro- 
duced at  said  hearing  that  your  petitioner  was 
the  owner  of  easements  in  Harford  county,  and 
no  legally  sufficient  evidence  having  been  pro- 
duced at  said  hearing  us  to  the  value  of  such 
alleged  easements. 

Fourth.  The  manner  and  form  of  said  order 
or  action  of  the  state  tax  commission  of  Mary- 
land, dated  October  20,  191U,  reversing  the  as- 
sessments of  the  county  commissioners  of  Har- 
ford county,  and  reassessing  said  property  at  an 
increased  valuation. 

E^fttL  The  method  of  computing  the  deteriora- 
tion in  value  of  the  property  involved  in  said 
appeal. 

Sixth.  The  valuation  of  the  easements  of  your 
petitioner  for  purposes  of  taxation,  which  said 
easements  have  been  and  are  now  taxed  under 
the  provisions  of  article  81,  sections  167  to  1S6, 
indnsive,  of  the  Annotated  Code  of  the  Public 
General  Laws  of  Maryland  (Bagby). 

Seventh.  That  the  state  tax  commission  of 
Maryland  is  in  error  in  this  case  in  its  con- 
struction, interpretation,  and  application  of  the 
laws  of  Maryland  relating  to  the  assessment  and 
taxation  of  the  easements  of  your  petitioner; 
and  contrary  to  said  law  said  commission  ruled 


that  the  law  permitted,  directed,  and  authorized 
the  consideration  and  valuation  of  theeasementi 
of  your  petitioner  in  arriving  at  the  proper  as- 
sessment of  said  property  for  purpose  of  state 
and  county  taxation  ;   and 

Eighth.  The  method  of  conserving  the  record 
of  the  proceedings  at  the  bearing  of  this  appeal 
before  the  state  tax  commission  of  Maryland, 
and  such  other  questions  of  law  involved  in 
this  appeal  as  may  be  raised  at  the  hearing 
thereof. 

[1]  It  was  beld  in  Mayor  t.  Bonaparte,  93 
Md.  159,  48  Atl.  735,  that  this  court  cannot 
be  required  or  allowed  to  sit  as  a  board  of 
review  to  revise  the  amount  of  the  valuation 
placed  by  tox  officials  upon  property  for 
purposes  of  taxation.  Consolidated  Gas  Co. 
V.  Baltimore  City,  101  Md.  542,  61  Atl.  532, 
1  L.  R.  A.  (N.  S.)  268,  109  Am.  St  Rep.  584. 
It  Is  confined  to  an  examination  of  the  legal 
principles  upon  which  the  assessing  body  act- 
ed, and  if  there  found  no  error  of  law  ap 
plied  by  It  to  the  Injury  of  the  complaining 
taxpayer  this  court  Is  without  power  to  dis- 
turb the  assessment.  Consolidated  Gas  Co. 
v.  Baltimore  City,  105  Md.  43,  65  Atl.  628, 121 
Am.  St  Rep.  553.  In  this  case  no  testimony 
was  taken  In  the  lower  court,  and  the  evi- 
dence taken  before  the  state  tax  commission 
was  not  preserved,  and  therefore  we  have 
very  little  information  as  to  what  legal  ques- 
tions were  raised  and  decided  by  that  board. 
As  stated  In  the  opinion  of  Judge  Harlan, 
who  decided  the  case  in  the  lower  court: 

"The  record  sent  up  contained  the  doclcet  en- 
tries, the  petition  of  the  taxpayer  upon  whicb 
the  matter  was  brought  upon  appeal  from  tlie 
county  commissioners,  together  with  certain  ex- 
hibits, the  answer  and  motion  to  dismiss  of  the 
county  commissioners,  together  with  a  copy  of 
the  assessment  as  it  stood  on  the  county's  books, 
the  order  of  the  commission  complained  of  here, 
and  the  appellant's  petition  to  have  tlie  record 
sent  to  this  court" 

[2]  As  to  the  first  and  fourtli  reasons  as- 
signed in  the  petition  for  appeal,  viz.  that 
the  state  tax  commission  was  without  Juris- 
diction to  Increase  the  assessment,  little 
need  be  said.  This  was  not  pressed,  either  in 
the  court  below  or  in  this  court,  and  in  view 
of  the  broad  powers  as  to  assessment  confer- 
red upon  the  state  tax  commission  by  the 
act  of  1914  (chapter  841),  as  construed  by 
this  court  In  Lescr  et  aL  v.  Lowenstein,  129 
Md.  244,  98  AtL  712,  these  objections  cannot 
be  sustoined. 

There  is  no  evidence  to  support  the  sec- 
ond, third,  and  fifth  reasons  assigned. 

[S]  The  ground  of  complaint  in  the  eighth 
paragraph  of  the  petition  relates  merely  to 
alleged  irregularities  or  omissions  of  the 
state  tex  commission  in  methods  of  proce- 
dure, eta  None  of  the  things  complained  of 
affected  the  jurisdictioa  of  the  commission  to 
hear  and  decide  the  case,  and  there  was  no 
obligation  upon  the  commission  to  have  tak- 
en and  preserved  the  evidence  taken  at  the 
hearing.  If  the  appellant  thought  this  desir- 
able, it  was  at  liberty  to  have  had  a  steno- 
graphic copy  of  the  evidence  taken.  It  was 
certainly  not  the  duty  of  the  sUte  tax  coiu- 


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603 


mission,  any  more  than  It  Is  the  duty  of  a 
court  of  record,  to  cause  to  be  prepared-  and 
flled  as  a  part  of  Its  records  a  copy  of  the 
evidence  taken  upon  the  hearing.  The  act 
does  not  require  this. 

[4]  The  record  shows  that,  In  placing  a 
valuation  upon  the  appellant's  poles  and  cross- 
arms,  the  state  tax  commission  took  Into  con- 
sideration and  assessed  Its  easements  In  the 
public  highways.  This  action  of  the  commis- 
sion Is  assigned  as  error  of  law  in  the  re- 
maining paragraphs  of  the  petition,  viz.,  the 
sixth  and  seventh.  The  appellant  Is  one  of 
the  class  of  corporations  upon  which  a  gross 
receipts  tax  Is  Imposed  by  this  state.  It  paid 
this  tax  for  the  year  1916,  and  it  is  argued 
that  this  tax,  Imposed  by  section  167,  art.  81, 
of  the  Code,  is  a  tax  In  "lieu  of  and  In  sub- 
stitution for  any  other  tax  that  might  be 
levied  on  its  intangible  property,  whether  It 
be  termed  franchise  or  easement,"  and  that 
the  assessment  of  its  easements  In  the  public 
highways  of  Harford  county  by  the  state  tax 
commission  Is  a  second  assessment  for  pur- 
poses of  taxation  of  the  same  value,  and  is 
void,  because  it  is  double  taxation  and  pro- 
hibited by  the  Bill  of  Rights  of  thU  state. 
We  do  not  agree  with  this  contention.  It 
would  introduce  a  principle  into  the  general 
law  of  taxation  of  this  state  that  might,  and 
probably  would,  result  in  serious  injury  to 
the  public.  It  is  settled  In  this  state  that 
gross  receipts  taxes  Imposed  by  the  section 
of  the  Code  mentioned  are  not  taxes  imposed 
upon  the  property  of  the  corporation.  State 
V.  PhUa.,  WU.  &  Balto.  R.  R.  Co.,  45  Md.  361, 
24  Am.  Rep.  511.  These  taxes  have  been  re- 
peatedly defined  and  sustained  as  constitu- 
tional, both  by  this  court  and  the  Supreme 
Court  of  the  United  States.  Cumb.  &  Pa.  R. 
R.  Cow  V.  State,  92  Md.  668,  48  Atl.  503,  52  L. 
R.  A.  764;  State  v.  United  States  Fidelity 
Co.,  93  Md.  314,  48  Atl.  918;  State  v.  Central 
Trust  Co.,  106  Md.  208,  67  AtL  267.  It  was 
held  in  State  v.  United  States  Fidelity  Co., 
supra,  that  the  gross  receipts  tax  is  Imposed 
only  upon  gross  receipts  from  the  business  of 
the  corporation  done  In  this  state,  and  not 
upon  the  gross  receipts  from  its  business 
done  beyond  this  state.  In  Ratterman  v. 
Western  Union  Telegraph  Co.,  127  U.  S.  411, 
8  Sup.  Ct  1127,  32  L.  Ed.  229,  as  to  a  corpora- 
tion which  had  accepted  the  provisions,  as 
this  appellant  did,  of  the  act  of  Congress  of 
July  24,  1866,  It  was  held— 

"that  80  far  as  a  tax  was  levied  upon  receipts 
properly  appurtenant  to  interstate  commerce 
It  was  void,  and  that  bo  far  as  it  was  only  upon 
commerce  wholly  within  the  state  it  was  valid. 
The  commerce  here  mentioned  was  telegraph 
business,  and  the  receipts  were  receipts  for  tel- 
egraph messages.  This  case  arose  upon  a  certifi- 
cate of  division  of  the  judges  who  presided  at 
the  trial,  and  in  remandinK  the  case  the  court 
said:  'We  answer  the  question,  in  regnrd  to 
which  the  judges  of  the  circuit  court  divided  in 
opinion,  by  saying  that  a  single  tax,  assessed 
under  the  Revised  Statutes  of  Ohio,  upon  the 
receipts  of  a  telegraph  company  which  were  de- 


rived partly  from  interstate  commerce  and  part- 
ly from  commerce  within  the  state,  but  which 
were  returned  and  assessed  in  gross,  and  with- 
out separation  or  apportionment,  is  not  wholly 
invalid,  but  is  invaha  only  in  proportion  to  the 
extent  that  such  receipts  were  derived  from  in- 
terstate commerce' ;  and,  concurring  with  the 
circuit  judge  in  his  action  enjoining  the  col- 
lection of  the  taxes  on  that  portion  of  the  re- 
ceipts derived  from  Interstate  commerce,  and 
permitting  the  treasurer  to  collect  the  other  tax 
upon  property  of  the  company  and  upon  receipts 
derived  from  commerce  entirely  within  the  hm- 
its  of  the  state,  the  decree  was  affirmed." 

[S]  But  if  it  were  held  that  the  gross  re- 
ceipts tax,  as  applied  to  this  corporation, 
were  invalid,  as  appears  to  he  intimated  in 
the  brief  of  the  appellant,  that  would  not  im- 
pair the  validity  of  the  assessment  of  these 
easements,  which  are  taxable  under  the  law 
of  this  state.  Consolidated  Gas  Co.  v.  Balto, 
supra. 

Order  affirmed,  with  costs. 


(ISl  Hd.  10) 
WILSON  V.  HILLIARD  et  aL    (No.  23.) 
(Court  of  Appeals  of  Maryland.    Juno  27,  1917.) 

EXECTJTOBS  AND  Aduinistsators  $s>500(4)— 
Settlement  of  Account — Reopening. 
Where  petitioner  acknowledged  in  writing 
under  seal  that  he  had  received  iTom  his  grand- 
father $10,000,  which,  if  not  returned,  should 
be  deducted  from  his  share  in  his  grandfather's 
estate,  be  would  not,  in  the  absence  of  fraud, 
on  proof  that  he  did  not  read  all  of  the  writing, 
and  in  fact  receive  bonds  worth  only  1^1,000,  in- 
stead of  $10,000,  be  entitled  to  have  the  ac- 
count of  the  executor,  charging  him  with  $10,- 
000,  reopened  and  reinstated,  and  petitioner 
charged  in  the  new  account  with  the  present 
market  value  of  the  bonds. 

Appeal  from  the  Orphans'  Court,  Washing- 
ton County. 

"To  be  officially  reported." 

Petition  by  U  Roy  Wilson  against  Charles 
Edward  Hilliard,  executor  and  others.  From 
an  order  of  the  orphans'  court  dismissing  the 
petition,  with  costs  to  petitioner,  he  appeals. 
AfBrmed,  with  costs. 

Argued  before  BOYD,  C.  X,  and  BRISCOE, 
THOMAS,  PATTISON,  URNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Edgar  Allan  Poe,  of  Baltimore  (Bartlett, 
Poe  &  Claggett,  of  Baltimore,  on  the  brief), 
for  appellant.  Levin  Stonebraker  and  J.  A. 
Mason,  both  of  Hagerstown  (A.  S.  Mason,  of 
Hagerstown,  on  the  brief),  for  appellees. 

THOMAS,  J.  The  appellant,  on  the  13th 
of  February,  1917,  filed  in  the  orphans'  court 
of  Washington  county  a  petition  in  which  he 
alleged  that  he  was  a  grandson  and  legatee 
of  John  L.  Nlcodemus,  deceased;  that  Charles 
Edward  Hilliard,  executor  of  the  deceased, 
had  flled  his  fourth  account,  which  the  or- 
phans' court  had  approved  on  the  6th  of 
February,  1917,  in  which  the  petitioner  was 
charged  with  the  sum  of  $10,000  "by  virtue 
of  the  following  paper  executed  by  him: 

"I,  Roy  Wilson,  of  Baltimore,  Md.,  hereby 
acknowledge  that  I   have  this  day   received  of 


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101  ATLANTIC  EEPORTER 


(Md. 


my  grandfather,  John  I*.  Nicodemue,  the  snm 
of  ten  thousand  dollars,  which  said  sum  of 
?10,000  I  hereby  promise  to  pay  to  him  if  at 
any  time  he  should  demand  payment  thereof, 
and  in  case  no  such  demand  be  made  by  my  said 
grandfather  in  his  lifetime,  I  consent  and  agree 
that  the  said  $10,000  shall  be  charged  against 
me  in  the  dietribution  of  hia  estate,  and  I 
hereby  authorize  and  direct  the  person  or  per- 
sons legally  authorized  to  administer  the  estate 
of  my  said  grandfather  to  charge  and  deduct 
the  said  snm  from  any  legacy  or  distributive 
share  of  said  estate  to  which  I  may  in  any  way 
be  entitled,  either  as  legatee  or  heir  at  law. 

"Witness  my  hand  and  seal  this  6th  day  of 
October,  1912. 

"[Signed]    L.  Roy  Wilson.     [Seal.] 

"Test:   J.  L.  Nicodemus.^' 

The  petitioner  further  alleged: 

"That  he  never  received  the  sum  of  ten  thou- 
eand  dollars  ($10,000.00)  mentioned  in  said  pa- 
per, but  that  be  did  receive  from  his  grandfa- 
ther, at  the  time  of  the  ezocution  thereof,  five 
(5)  five  per  cent.  (5%)  O'Gara  Coal  Company 
bonds,  numbered  1797,  1798,  1799,  1800,  and 
461,  and  five  (5)  six  per  cent  (!&%)  Mobile 
Terminal  &  Railway  Company  bonds,  numbered 
151,  152,  153,  160,  and  161.  That  at  that  time 
tho  O'Oara  Coal  Company  bonds  had  a  market 
value  somewhere  between  seventy-nine  (79}  and 
eighty-five  (85),  and  Mobile  Terminal  &  Railway 
Company  bonds  had  a  market  value  somewhero 
between  ninety-six  (96)  and  one  hundred  (100). 
At  the  time  of  the  death  of  the  said  John  H 
Nicodemua  both  the  O'Gara  Coal  Company  and 
the  Mobilo  Terminal  &  Railroad  (Company  were 
in  the  hands  of  receivers,  and  the  value  of  thfe 
Baid  bonds  had  therefore  greatly  diminished; 
the  O'Gara  Coal  Company  bonds  being  worth 
about  twenty-five  (25),  and  the  Mobilo  Termi- 
nal   &    Railway    Company    about    thirty    (30). 

"(3)  That  during  the  lifetime  of  his  grand- 
father he  was  not  at  liberty,  under  the  terms 
of  the  receipt  above  eet  forth,  to  dispose  of 
said  bonds,  because  the  said  receipt  obligated 
him  to  return  the  said  bonds  to  his  grandfather 
if  at  any  time  he  should  demand  their  return. 
That  by  the  true  construction  of  said  paper, 
dated  October  6,  1912,  signed  by  your  petition- 
er and  delivered  to  his  grandfather  at  the  time 
of  the  receipt  of  the  bonds  above  mentioned,  the 
said  John  L.  Nicodemus  only  intended  to  charge 
your  petitioner  with  the  receipt  of  said  bonds, 
and  only  intended,  in  case  he  failed  during  his 
lifetime  to  demand  of  your  petitioner  a  surren- 
der of  said  bonds,  that  the  executor  of  his  will 
should  only  chargb  against  and  deduct  from  the 
legacies  to  your  petitioner,  under  said  will,  the 
actual  value  of  the  bonds  as  of  the  time  of  the 
payment  of  the  said  legacies." 

The  petition  then  prayed  that  the  accouit 
be  "re<^eued  and  restated,"  and  that  the  pe- 
titioner be  charged  In  the  new  account  with 
the  present  market  value  of  the  bonds.  The 
petition  was  answered  by  the  executor,  and 
by  Edwin  M.  Connor,  one  of  the  grandcUtl- 
dren  and  legatees  of  the  deceased,  denying 
the  allegations  of  the  third  paragraph  there- 
of, and  the  matter  was  set  down  for  a  hear- 
ing by  the  orphans'  court 

At  the  hearing  counsel  for  the  petitioner 
made  the  following  offers  of  proof: 

"We  offer  to  prove  by  Mr.  Wilson  (tho  peti- 
tioner): That  in  October,  1912,  the  time  these 
bonds  were  delivered  to  him  by  his  grandfather, 
the  O'Gara  bonds  had  a  market  value  of  aho\it 
70  to  80,  and  tho  Mobile  bonds  a  market  value 
from  96  to  100.  That  at  the  time  of  the  death 
of  Mr.  Nieodemus,  the  testator,  the  O'Gara 
bonds  had  a  market  value  of  about  42,  and  the 
Mobile  boaia  bad  a  possible  market  value  of 


70  to  86,  although  no  bonds  were  actually  sold 
at  that  time.  That  the  present  market  valne 
of  the  O'Gara  bonds  is  between  20  and  30, 
and  the  present  market  value  of  the  Mobile 
bonds  about  35.  That  the  receipt  that  he  signed 
on  October  6,  1012,  was  shown  him  just  short- 
ly before  he  started  for  the  train.  That  he  did 
not  read  the  entire  receipt,  and  only  read  down 
to  the  part  where  •  •  •  he  promised  to  pay 
to  his  grandfather  if  at  any  time  he  should  de- 
mand payment  thereof.  That  the  first  timo  that 
he  ever  read  the  receipt  in  its  entirety  was  when 
he  received  a  copy  of  it  from  the  executor,  in- 
closed in  a  letter  from  the  executor  dated  Ma; 
22,  1916.  That  until  his  grandfather's  wUl  was 
read  be  had  no  knowledge  tliat  any  legacy  or 
deviso  was  left  to  him." 

"We  offer  to  prove  by  Mrs.  Nicodemus,  widow 
of  the  testator:  That  she  was  present  at  the 
time  of  signing  this  receipt  That  $10,000  in 
cash  was  not  given  to  Roy  Wilson  at  that  time, 
but  that  there  was  delivered  to  him  fivo  5  per 
cent  bonds  of  the  O'Gara  Coal  Company,  Nos. 
1797,  1798.  1799,  180O,  and  461,  and  five  6 
per  cent.  Mobile  Terminal  &  Railway  Ck>mpany 
bonds,  Nos.  151,  152,  153,  160  and  161,  said 
bonds  being  of  the  par  value  of  $1,000.  That  a 
receipt  was  signed  by  the  petitioner,  Roy  Wil- 
son, just  as  he  was  leaving  for  the  train  on 
Sunday,  the  6th  of  October,  1912,  and  was 
hurriedly  read  over  by  him.  That  subsequent 
to  the  delivery  to  Roy  Wilson  of  the  above- 
mentioned  bonds,  and  prior  to  the  death  of  John 
L.  Nicodemus,  the  O'Gara  Coal  Company  went 
into  the  hands  of  receivers,  and  also  the  Mobile 
Terminal  &  Railway  Company.  That  Roy  Wil- 
son, shortly  after  the  O'Gara  Coal  Company 
went  into  the  hands  of  receivers,  wrote  to  John 
Li.  Nicodemus,  asking  what  he  was  to  do  with 
tho  O'Gara  Coal  Company  bonds,  and  at  the  in- 
stance of  John  L.  Nicodemus,  Mrs.  Nicodemus 
wrote  to  Roy  Wilson,  to  wit,  on  September  '2A, 
1913,  'Send  bonds  at  once.'  " 

The  orphans'  court  sustained  objections  to 
this  evidence,  and  the  petitioner  excepted  to 
the  rulings,  and,  the  "petitioner  not  desiring 
to  offer  other  testimony,"  the  orphans'  court, 
on  the  24tli  of  February,  1917,  passed  the  or^ 
der,  from  which  this  appeal  was  taken,  dis- 
missing the  petition  and  requiring  the  peti- 
tioner to  pay  the  costs. 

The  argument  of  counsel  for  the  appellant 
in  bis  brief  is  devoted  to  the  questions  of  the 
admissibility  of  the  evidence  offered  by  the 
petitioner  and  the  jurisdiction  of  the  orphans' 
court  to  construe  the  paper  executed  by  him. 
But,  even  if  the  jurisdiction  of  the  orphans' 
court  be  conceded,  and  the  evidence  offered 
be  treated  as  admissible  and  allowed  fall  ef- 
fect, it  Is  quite  dear  that  it  would  not  war- 
rant a  reversal  of  the  order  dismissing  the 
petition.  Assuming  that  the  petitioner  actu- 
ally received  five  O'Gara  Coal  Company  bonds 
and  five  Mobile  Terminal  &  Railway  Com- 
pany bonds,  each  of  the  par  value  of  $1,000, 
instead  of  $10,000,  what  would  be  the  effect 
of  the  paper  or  agreement  executed  by  him? 
If  we  write  into  the  acknowledgment  of  hav- 
ing received  $10,000  the  bonds  referred  to  in 
the  evidence,  in  the  place  of  the  $10,000,  we 
would  still  have  the  promise  of  the  petitioner, 
under  seal,  in  consideration  of  having  re- 
ceived said  bonds,  to  pay  to  his  grandfather 
$10,000  if  at  any  time  he  demanded  payment 
of  that  sum,  and,  in  case  no  such  demand  was 
made,  his  agreement  that  $10,000  should  be 


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BALTIMORE  A  O.  B,  CO.  ▼.  OWKNS 


605 


diarged  against  him  In  the  distribution  of 
his  grandfather's  estate.  There  Is  no  intima- 
tion here  of  any  fraud  or  mistake,  and  the 
only  question  Involved  is  the  proper  con- 
struction of  the  paper.  The  petitioner  and 
his  grandfather  knew  what  was  delivered  to 
and  received  by  the  petitioner,  and  in  view 
of  that  fact  the  only  reasonable  and  possible 
construction  of  the  paper  la  that  they  treated 
the  bonds  as  equivalent  to  $10,000  and  agreed 
that  they  should  be  bo  regarded.  To  hold 
that  the  promise  of  the  petitioner  was  to  de- 
liver the  bonds  to  his  grandfather  if  he  de- 
manded them,  and  that  his  agreement  was 
tlut  he  was  only  to  be  charged  with  the 
value  of  the  bonds  in  the  distribution  of  his 
grandfather's  estate,  would  require  us  to  dis- 
regard the  terms  of  the  paper,  whldi  are  too 
plain  to  admit  of  any  doubt  as  to  their  mean- 
ing, and  to  substitute  for  the  written  promise 
and  agreement  of  the  petitioner  another  and 
altogether  different  obligation.  In  Abbott  v. 
Gatcb,  18  Md.  314,  71  Am.  Dec.  635,  the  court 
said: 

"The  law  Is  well  settled  that  contracts  are 
to  be  interpreted  and  enforced  accordinir  to 
the  fair  import  of  their  terms,  without  refer- 
ence to  the  hnrd.shins  that  may  fall  on  the  pap- 
ties.  Wagner  v.  White,  4  Har.  &  J.  ."566:  Bar- 
ney V.  Insurance  Co.,  5  Har.  &  .T.  14.3:  Dorsey 
T.  Smith,  7  Har.  &  J.  345.  If  persons  volun- 
tarily express  themselves  in  writing,  they  mnst 
he  bound  by  the  lanzuage  employed.  McElderry 
V.  Shipley,  2  Md.  25.  The  law  presumes  that 
they  understand  the  import  of  their  own  con- 
tracts, and  to  have  entered  into  them  with 
knowledge  of  their  mutual  rights  and  obliga- 
ttone." 

In  Taylor  v.  Turley,  83  Md.  500,  Judge 
Stewart  said: 

"It  Is  certainly  not  the  duty  of  courts  to  shape 
the  contracts  of  parties,  but  to  enforce  such  as 
the  parties  make.  The  contract  must  be  con- 
strued by  the  natural  and  fair  import  of  its 
terms,  without  reference  to  the  hardship  it  may 
visit  on  the  parties.  If  persons  voluntarily  ez- 
presB  themselves  in  writing,  they  are  bound  by 
the  language  employed,  interpreted  bv  all  the 
evidence  admissible  for  that  purpose. 

And  in  the  case  of  Dixon  v.  ClayriUe,  44 
Md.  573,  C3ilef  Judge  Bartol  said: 

"It  has  been  well  observed  that  'there  is  no 
general  rule  better  settled,  or  more  just  in  it- 
self, than  that  parties  who  enter  into  con- 
tracts, and  especially  contracts  In  writing,  must 
be  governed  by  them  as  made,  according  to  their 
true  intent  and  meaning,  and  must  submit  to 
the  legal  consequences  arising  from  them.'  It 
is  a  familiar  principle  that  'the  intention  of  the 
parties  contracting  must  govern,  whero  that  can 
be  discovered,  unless  that  is  in  contravention  of 
some  rule  of  law.'  Chew  v.  Buchanan,  30  Md. 
367.  This  intention  must,  however,  be  ascer- 
tained from  the  terms  of  the  contract  Itself, 
where  this  is  in  writing  and  free  from  ambigu- 
ity." 

The  evidence  offered,  to  the  effect  that  the 
petitioner  did  not  read  the  whole  instrument, 
cannot  aid  in  the  construction  of  the  paper, 
or  relieve  Urn  from  the  consequences  of 
having  executed  it.  McGrath  y.  Peterson, 
127  Md.  412,  96  Atl.  551.  Nor  does  the  fact 
that  the  petitioner.  In  reply  to  his  letter  to 


John  Xj.  NicodemuB,  was  notified  to  "Send 
bonds  at  once,"  point  to  the  conclusion  that 
the  intention  of  the  parties  was  other  than 
that  plainly  expressed  in  the  paper.  What 
John  Ia  Nlcodemus*  purpose  was  in  direct- 
ing the  bonds  to  be  sent  to  him  is  not 
shown,  and  Is  not  material  to  the  inquiry 
here;  nor  does  it  appear  that  the  O'Gara 
Coal  Company  bonds  were  ever  sent  Co  him 
in  compliance  with  the  letter  from  Mrs. 
Nicodemus. 

It  fallows,  from  what  has  been  said,  tliat 
the  order  of  the  orphans'  court  must  be 
affirmed. 

Order  affirmed.  With  costs. 

(ISO  Md.  678) 

BALTIMORE  4  O.  B.  CO.  v.  OWENS. 
(No.  18.) 

(Oourt  of  Appeals  of  Maryland.    June  27, 1017.) 

1.  JxTsncBa  OF  the  Peace  «=>36(1)— JtrBiswo- 
TiON— Determination. 

Under  Code  Pub.  Gen.  Laws  1904,  art  52. 

t  7,  providing  that  no  justice  of  the  peace  shall 
have  jurisdiction  in  actions  where  the  title  to 
land  is  involved,  it  must  appear  to  the  court, 
from  the  nature  of  the  action  itself,  that  it  is 
one  in  which  the  title  to  land  is  necessarily  and 
directly  involved,  in  order  to  oust  and  defeat  the 
jurisdiction  of  the  justice  of  the  peace,  and  of 
the  circuit  court  on  appeal. 

2.  Justices  or  the  Peace  «=»36(1) — Jubisdio- 

TION— DETEEMINATION. 

The, statement  by  defendant  that  the  title 
to  land  is  involved  is  not  conclusive,  and  cannot 
govern  or  control  the  action  of  the  court,  or  de- 
termine its  jurisdiction. 

3.  Justices  oe  the  Peace  €=936(1)— Jubisdio- 
TioN— 'Title  to  Land. 

An  action  for  injury  to  plaintlfTs  possession 
merely  did  not  involve  the  title  to  land,  so  as  to 
defeat  the  jurisdiction  of  the  justice  of  the 
peace. 

4.  Appeal  and  Ebbob  ^=>493— Decisions  or 
Justices  of  the  Peace— Review. 

Where  it  does  not  affirmatively  appear  from 
the  record  that  the  title  to  land  was  a  question 
directly  or  necessarily  in  issue,  so  that  the  jus- 
tice had  no  jurisdiction,  there  is  no  right  of  re- 
view by  the  Court  of  Appeals  of  judgment  of 
cLrcnit  court  on  appeal 

Appeal  from  Circuit  Court,  Prince  George's 
County;   llllmore  Beall,  Judge. 

"To  be  officially  reported." 

Action  in  justice's  court  by  Clarence  J. 
Owens  against  the  Baltimore  &  Ohio  Railroad 
Company.  From  a  judgment  for  plaintiff, 
defendant  appealed  to  the  circuit  court;  and 
from  a  judgment  of  affirmance,  defendant  ap- 
peals.   Appeal  dismissed,  with  costs. 

Argued  before  BOXD,  O.  J.,  and  BRISOOB, 
BURKE,  THOMAS,  PATTISON,  and 
STOCKBRIDGE,  JJ. 

John  D.  Nock  and  CarviUe  D.  Benson,  both 
of  Baltimore  (Benson  &  Karr  and  Stanley  A 
Boss,  all  of  Baltimore,  on  the  brief),  for  ap- 
pellant. T.  Howard  Duckett,  of  Washington, 
D.  C.  (Marion  DucUett,  of  Washington,  D.  C, 
on  the  brief) ,  for  appellee. 


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101  ATLANTIO  REPORTER 


(Md. 


BRISCOE],  J.  This  is  an  appeal  from  an 
order  of  the  circuit  court  for  Prince  George's 
county,  overruling  a  motion  to  quash  the  pro- 
ceedings In  a  magistrate's  appeal  case,  and 
from  a  judgment  In  favor  of  the  plaintiff 
against  the  defendant  for  the  sum  of  $100. 
The  record  presents  a  single  question,  and 
that  relates  to  the  Jurisdiction  of  Justices 
of  the  peace  in  civil  cases,  under  article  52, 
i  7,  Code  of  P.  G.  Laws  of  the  state. 

The  motions  to  dismiss  the  appeal  and  to 
quash  the  proceedings  in  the  court  below 
were  based  upon  the  ground  that  neither  the 
justice  of  the  peace  nor  the  circuit  court  for 
Prince  George's  county  on  the  trial  bad  ju- 
risdiction, because  the  suit  was  one  where 
the  title  to  land  was  involved,  and  therefore 
they  were  without  jurisdiction  to  hear  and 
determine  the  case.  Section  7  of  article  52  of 
the  Code  reads  as  follows: 

"Bnt  no  justice  of  the  peace  shall  have  any 
jurisdiction  in  actions  where  the  title  to  land  is 
Involved,  nor  in  actions  for  dander,  for  breach 
of  promise  to  marry  or  to  enforce  any  lien  for 
work  done  or  materials  furnished." 

[1,2]  This  section  (7)  of  the  Code  has  re- 
peatedly been  before  this  court  for  construc- 
tion, and  it  has  been  distinctly  held  that  in 
such  cas«!S  It  must  appear  to  the  court  from 
the  nature  of  the  action  Itself  that  it  is  one 
in  which  the  title  to  land  is  necessarily  and 
directly  In  issue,  in  order  to  oust  and  defeat 
the  jurisdiction  of  the  justice  of  the  peace, 
and  of  the  circuit  court  on  appeal  from  the 
justice  of  the  peace.  In  Randle  v.  Sutton, 
43  Md.  64,  it  is  said: 

"The  statement  by  the  defendant  that  the  ti- 
tle to  land  is  involved,  is  not  condusivo,  and 
cannot  govern  or  control  the  action  of  the  court, 
or  determine  its  jurisdiction.  It  must  appear 
to  the  court,  from  the  nature  of  the  action  it- 
self, that  it  was  one  in  which  the  title  to  land  is 
necessarily  and  directly  in  issue  between  the 
parties." 

See  Cole  v.  Hynes,  46  Md.  181 ;  Deitrich  v. 
Swartz,  41  Md.  196;  Shlppler  v.  Broom,  62 
Md.  318. 

These  earlier  cases  are  considered  and  re- 
viewed in  a  number  of  more  recent  decisions, 
and  the  construction  of  the  statute  as  an- 
nounced by  them  has  been  approved  and 
adopted  by  this  court  as  the  law  applicable 
in  similar  cases.  Legum  t.  Blanic,  105  Md. 
128,  65  Atl.  1071;  Josselson  v.  Sonneborn, 
110  Md.  548,  73  Atl.  650;  Whlttlngton  v. 
Hail,  116  Md.  468,  82  Atl.  163;  Wllmer  v. 
Mitchell,  122  Md.  300,  89  Atl.  612. 

It  appears  from  the  docket  entries  In  the 
case  that  on  the  10th  of  December,  1914,  the 
appellee  obtained  a  judgment  against  the 
appellant  company,  before  Wm.  J.  Neale,  a 
justice  of  the  peace  of  the  state  of  Maryland, 
In  and  for  Prince  George's  county,  for  the 
sum  of  $100  and  costs.  The  defendant  was 
summoned  to  answer  an  action  on  the  case 
for  $100  damages  at  the  suit  of  the  plalntifT, 
and  the  cause  of  action  and  the  particulars 
«f  the  plaintitTs  claim  for  damages  are  bas- 
«d  upon  an  alleged  improper  and  negligent 


construction  and  operation  of  the  defendant's 
trains  on  its  tracks  at  and  near  the  plaintllTg 
residence  in  Rlverdale,  Prince  George's  county, 
to  the  injury  and  damage  of  the  plaintiff. 
The  bill  of  particulars,  filed  with  the  justice 
of  the  peace  and  set  out  in  the  record,  al- 
leges in  part  the  plaintiff's  claim  for  dam- 
ages, as  follows: 

"That  the  freight  trains  on  the  track  are  there 
mostly  at  nisht,  and  througliout  the  nif;ht,  and 
they  recklessly  and  negligently  are  operated  by 
the  defendant's  employes,  and  because  of  sach 
emit  a  great  quantity  of  steam,  soot,  smoke, 
ashes,  and  cinders,  all  four  of  the  latter  being 
wafted  over  the  plaintiff's  property,  in  and  upon 
his  dwelling  house  and  his  porches,  requiring 
him  to  keep  the  blinds  of  the  house  facing  the 
railroad,  when  the  wind  blows  that  direction, 
shut,  to  prevent  his  bedding,  linen,  and  furniture 
from  being  ruined  ;  that  he  can  use  his  telephone 
only  with  much  inconvenience  by  reason  of  the 
interminable  noises  made  by  the  operation  of 
these  freight  trains;  that  the  passenger  trains 
between  Washington  and  Baltimore  pass  River- 
dale  Station,  both  night  and  day,  with  great 
speed,  and  these  freight  trains  are  warned  of 
their  approach  by  automatic  bells  and  dynamite 
caps,  which  requires  them  to  hurry  and  scurry 
into  the  switch  to  avoid  collision;  that  the  jam- 
ming and  ramming  of  the  cars,  loud  and  boister- 
ous calls  to  the  crews  of  the  freight  trains,  pre- 
vent conversation  in  the  plaintiff's  yard  or  on 
his  porches,  and  especially  musical  performances 
and  literary  entertainments,  both  of  which  his 
premises  are  often  devoted  to;  that  his  rest  and 
quiet  at  night  is  destroyed  by  the  operation  of 
these  freight  trains;  that  the  trains  are  often 
loaded  with  live  stock  and  stand  immediately 
opposite  the  plaintiff's  house,  squeaking  and 
bleating,  and  they  are  loaded  with  manure  and 
fertilizer,  by  which  obnoxious  odors  are  driven 
all  over  the  plaintiff's  premises." 

From  the  judgment  rendered  by  the  jus- 
tice of  the  peace  an  appeal  was  taken  to  the 
circuit  court  for  Prince  George's  county,  and 
upon  trial  the  judgment  was  affirmed.  The 
evidence  produced  at  the  trial  is  Incorporat- 
ed in  the  record,  and  the  proceedings  are  cer- 
tified to  by  the  judge  before  whom  the  case 
was  heard  and  tried,  and  the  pending  appeal 
to  this  court  is  taken  from  the  judgment  in 
that  court  in  favor  of  the  plaintiff. 

[3]  We  find  nothing,  from  an  examination 
of  the  record  now  before  us,  that  tends  in 
any  way  to  disclose  a  want  of  jurisdiction  in 
the  justice  of  the  peace  or  in  the  court  below. 
There  is  nothing  on  the  face  of  the  proceed- 
ings, properly  before  us,  or  from  the  nature 
of  the  action  itself,  that  shows  that  it  is  a 
suit  in  which  the  title  to  land  is  necessarily 
and  directly  in  issue  between  the  parties. 
The  nature  of  the  injury  complained  of  and 
the  suit  itself  was  to  recover  damages  for 
an  injury  to  the  plaintiff's  possession  merely, 
and  the  title  to  the  land  was  not  directly  and 
necessarily  involved,  iv)  as  to  defeat  and  oust 
the  jurisdiction  of  the  justice  of  the  peace 
or  of  the  circuit  court.  In  Shlppler  v.  Broom, 
62  Md.  318,  it  is  said: 

"The  only  ground  on  which  an  exercise  of  the 
revisory  powers  of  this  court  can  be  successfully 
invoked,  in  a  case  where  the  judgment  was  ren- 
dered by  an  appellate  tribunal,  reviewing  the  de- 
cision of  a  justice  of  the  peace,  is  the  want  of 
jurisdiction  to  consider  and  determine  the  qnes- 


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eo7 


tions  inToIved  in  litigation.  The  principle  is 
too  -well  settled  to  be  controverted,  that  in  an 
appeal  from  tbe  decision  of  a  jnstice  of  the 
peace  the  judgment  of  the  appellate  court  is  a 
finality,  unless  such  court  transcends  the  lim- 
its of  its  jurisdiction." 

[4]  As  it  does  not  af9rmatlvely  appear 
from  the  record  that  the  title  to  land  was  a 
question  directly  or  necessarily  in  Issue  or 
involved  in  the  case,  and  that  the  justice 
rendering  the  judgment,  and  the  drcnit  court 
affirming  it  upon  appeal,  were  without  Juris- 
diction to  hear  and  determine  the  case,  It 
follows,  there  being  no  right  of  review  by 
this  court,  that  tbe  motion  to  dismiss  the 
appeal  must  prevail.  Wllmer  t.  Mitchell,  122 
Md.  301,  89  Atl.  612;  Whittlngton  v.  Hall, 
116  Md.  468,  82  Atl.  163. 

Appeal  dismissed,  with  costs. 


(130  Md.  OO) 

BABTON  T.  SWAINSON.    (No.  14) 
(CSourt  of  Appeals  of  Maryland.    June  26,  1017.) 

1.  Public  hAvos  9=9154— StrsvETS  ash  Cek- 

TIFICATKS— "CaVBAT." 

Under  Code  Pub.  Civ.  Laws,  art.  54,  i§  41. 
42,  regulating  the  survey  of  vacant  lands,  cer- 
tificates thereto,  .^nd  caveats,  a  caveat  is  bat 
an  objection  to  tbe  issuance  of  the  patent,  and, 
if  it  is  not  heard  and  determined  within  the  12 
months  allowed  by  section  42,  the  certificate  by 
operation  of  law  is  released  from  the  effect  of 
the  caveat,  and  tbe  patent  should  issue  upon  the 
eaveatee  complying  with  the  other  provisions  of 
tbe  law. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Caveat.] 

2.  PuBuc  Lands  iS=>154— Subvuts  and  Ckb- 

TmCATEB— C  A  VKAT. 

Under  Code  Pub.  Civ.  Laws.  art.  54.  ${  41. 
42,  failure  to  hear  and  determine  a  caveat  with- 
in the  statutory  time  affects  only  the  caveat,  and 
does  not  impair  tbe  rights  of  the  caveatee  to 
have  certificate  issued  to  him. 

8.  Public  Lands  «=s>154— Subvkts  and  Oee- 
TiFiCATES— Caveat. 
Where  caveatee  was  informed  by  chief  derk 
to  the  land  office  commissioner  that  all  the  ca- 
veat cases  affecting  the  landn  involved  were  "out 
by  law,"  and  any  proceedings  affecting  such 
lands  must  be  begun  de  novo,  such  statements 
held  a  mere  expression  of  the  views  of  the  chief 
derk,  and  not  tbe  judicial  determination  of  the 
commissioner. 

4.  Public  Lands  «=s>15^->Sttbvet8  and  Ceb- 
TinoATEB— Caveat. 
Caveatee  held  not  bound  or  concluded  by 
statements  of  tbe  chief  clerk  to  the  land  com- 
missioner, made  to  caveatee,  to  the  effect  that 
the  caveatpes  were  "out  by  law,"  and  that  pro- 
ceedings affecting  the  lands  should  be  started'  de 
novo. 

6.  PobLic  Lands  «=3164--Subvets  and  Cer- 
tificates—Caveat. 
Payment  of  caution  or  composition  money 
in  land  office  caveat  proceedings  does  not,  as 
between  the  applicant  for  a  warrant  and  the 
state,  establish  tbe  relations  of  contracting  par- 
ties; but  such  payment  is  necessary  before  tbe 
question  whether  a  patent  should  be  granted  can 
be  considered. 

Appeals  from  Commissioner  of  Land  Of- 
fice. 

In  the  matter  of  tbe  application  of  Wil- 
liam  Edward   Swalnson  for  a   warrant  of 


survey  for  certain  vacant  lands.  In  wbl«flt 
Leland  Barton  filed  caveats.  From  orders 
of  the  Commissioner  of  the  Land  Office  dis- 
missing the  caveats,  caveator  appeals.  Or- 
ders affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  UB- 
NBR,  and  STOCKBRIDGE,  JJ. 

John  Rldout,  of  Washington,  D.  0.,  for  ap- 
pellant Daniel  W.  Baker,  of  Washington, 
D.  C,  for  appeUee. 

PATTISON,  J.  The  appeals  in  this  case 
are  from  three  orders  of  the  commissioner 
of  the  land  office,  dismissing  the .  caveats  of 
the  appellant.  In  each  of  these  cases  Swain- 
son,  the  appellee,  on  July  16,  1914,  filed  his 
application  for  a  warrant  of  survey  for  cer- 
tain vacant  lands  in  Montgomery  county, 
Md.  A  warrant  thereon  was  issued  on  the 
19th  day  of  July  following,  and  said  lands 
were  thereafter  surveyed,  and  certificates  of 
sndi  surveys  were  filed  with  the  commis- 
sioner. 

On  February  16,  1915,  the  Chesapeake  & 
Ohio  Canal  Company's  trustees  filed  caveats 
against  the  Issuance  of  patents  upon'  said 
applications  of  the  appellee.  On  May  3,  1016. 
the  appellant  filed  applications  for  special 
warrants  to  survey  said  vacant  lands,  that 
patents  therefor  might  be  Issued  to  him.  It 
appears  that  a  warrant  In  each  case  was 
issued  in  response  to  his  application,  but  it 
is  not  shown  by  the  record  that  any  return 
thereon  was  made  to  the  commissioner. 
Thereafter  the  commissioner,  who  had  re- 
cently been  Inducted  into  office,  issued  no- 
tices In  forms  of  orders  nisi  without  discrim- 
ination to  all  caveators,  including  the  Chesa- 
peake &  Ohio  Canal  Company's  trustees,  to 
show  cause  why  their  pending  caveats  should 
not  be  dismissed  by  a  certain  day  named  in 
the  order,  and  on  the  24th  day  of  June,  1916, 
tbe  appellant,  who  had  heard  of  tbe  Issuance 
of  said  notice,  also  filed  caveats  against  the 
applications  of  the  appellee,  Swalnson,  for 
patents  for  said  vacant  lands.  These  caveats 
were  dismissed  on  the  4th  day  of  October, 
1916. 

After  service  of  the  aforesaid  order  or  no- 
tice on  the  Chesapeake  &  Ohio  Canal  Com- 
pany's trustees,  tbe  caveats  against  them 
were  heard  upon  a  day  agreed  upon  by  the 
caveators  and  caveatees  and  on  the  5th  day 
of  October,  1916,  the  caveats  were  dismissed, 
and  on  the  4th  day  of  December  following, 
patents  were  ordered  to  issue  to  the  appellee. 
The  appeals  in  this  case,  as  we  have  said, 
are  from  the  three  orders  of  October  4,  1916, 
dismissing  the  caveats  of  the  appellant 

The  record  disclosed  that  the  caveats  of 
the  Chesapeake  &  Ohio  Canal  Company  were 
not  heard  and  determined  within  12  months 
from  the  entering  of  the  same,  and  this  fact 
is  the  chief  ground. of  the  appellant's  caveats 
to  the  issuance  of  patents  to  the  appellee. 


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Section  42  of  artlde  54  of  the  Code  of  1912 
provides  tbat: 

"Every  cayeat  shall  be  heard  and  determined 
by  the  commissioner  of  the  land  office  within 
twelve  months  from  the  entering  of  the  same  un- 
less he  shall  under  special  circumstancea  give 
further  time  to  the  parties." 

It  Is  contended  by  the  appellant  that  un- 
der a  proper  construction  of  this  section  the 
commissioner,  without  special  circumstances 
authorizing  extension  of  time,  was  not  only 
without  authority  to  hear  and  determine  the 
caveats,  but  that  the  appellee,  because  of  the 
failure  to  hear  and  determine  them  within 
the  statutory  period,  had  lost  his  right  to 
bare  the  patents  Issued  to  him,  even  though 
be  should  comply  with  all  other  requisites 
of  the  statute. 

Section  41  of  article  54  of  the  Code  pro- 
vides that  if  a  certificate  of  survey  shall  be 
>-etumed  within  the  time  herein  prescribed, 
And  shall  be  found  to  be  correct,  and  the 
irhole  composition  or  purchase  money  has 
been  paid,  and  such  certificate  has  lain  6 
months  in  the  land  office,  and  no  caveat  has 
been  entered  thereto  the  person  having  such 
certificate  returned,  his  assigns,  devisees,  or 
heirs  shall  be  entitled  to  a  patent  thereon,  or 
If  the  certificate  Is  released  by  adjudication 
or  by  the  operation  of  law  from  the  effect  of 
the  caveat,  a  patent  shall  issue  thereon  as 
if  no  caveat  had  been  filed.  The  aforesaid 
section  42  deals  with  the  caveat,  and  pro- 
vides that  It  shall  be  heard  and  determined 
within  12  months  from  the  entering  of  the 
same,  unless  under  special  circumstances  the 
time  be  extended. 

[1, 2]  The  caveat  is  but  an  objection  to  the 
Issuance  of  the  patent,  and  if  It  Is  not  heard 
and  determined  wlttiin  the  statutory  period, 
without  extension  of  time,  the  certificate  is 
released  from  the  effect  of  the  caveat  by 
operation  of  law,  and  upon  the  caveatee  com- 
plying with  all  other  provisions  of  the  law 
the  patent  should  issue.  The  failure  to  hear 
and  determine  the  caveat  within  the  require 
ed  time  affects  only  the  caveat,  and  does  not 
affect  the  certificate,  or  the  rights  of  the 
caveatee  to  have  Issued  to  him  thereafter  his 
patent,  If  the  certificate  be  correct,  and  he 
complies  with  the  law  In  all  other  respects. 
It  appears  from  the  record  that  on  the  2d 
day  of  May,  1916,  the  chief  clerli  In  the  com- 
missioner's office.  In  response  to  a  letter  from 
the  appellant,  dated  the  2dth  day  of  April, 
1916,  which  is  not  in  the  record,  wrote  ap- 
pellant, saying: 

"In  reference  to  the  different  caveat  cases 
yon  have  cited,  in  which  Mr.  Swainson  is  the 
caveatee,  namely,  'Swainson's  Island,'  'Wade's 
Island,'  and  'Wade's  Discovery,'  beg  to  advise 
that  these  cases  are  all  out  by  law,  »  •  • 
which  states  that  'every  caveat  must  be  heard 
and  determined  within  twelve  months  from  the 
date  of  entering  same.'  •  •  •  As  to  Swain- 
son's right  in  the  matter  of  these  caveats,  we 
stated  above  that  they  are  out  by  law,  and  any 
proceedings  affecting  this  land  or  lands  must 
necessarily  be  started  de  novo." 


On  the  next  day,  May  3d,  the  appellant 
filed  his  application  for  a  special  warrant  to 
survey  said  vacant  lands  and  paid  the  cau- 
tion money  therefor.  The  fact  that  he  was 
told  by  the  chief  clerk  in  the  letter  rec^ved 
hy  him  that  these  caveat  cases  and  Swain- 
son's right  in  the  matter  of  the  caveats  were 
"out  by  law"  is  made  an  additional  objection 
to  the  issuance  of  the  patents. 

[3,4]  It  Is  claimed  by  the  appellant  that 
the  aforesaid  statements  of  the  c^lef  clerk, 
found  in  his  letter  of  May  3d,  Induced  him 
to  mal<e  his  application  for  special  warrant 
and  to  pay  the  caution  money,  and  that  the 
payment  of  said  money  created  contractual 
relations  between  him  and  the  state,  whldt 
were  wrongfully  disregarded  in  the  dismissal 
of  his  caveats.  The  statements  referred  to 
were  the  mere  expressions  of  the  views  of 
the  chief  clerk,  and  were  not  the  Judicial 
determination  of  the  commissioner ;  but,  even 
should  said  statements  be  regarded  as  the 
Judicial  determination  of  the  commissioner, 
they  certainly  would  not  be  binding  upon  the 
appellee  in  the  sense  tbat  his  rights  wovdd 
be  concluded  thereby.  It  is  not  clear  Just 
what  was  meant  by  the  clerk  In  the  expres- 
sions used  by  him  In  his  letter,  but  such  ex- 
pressions could  not  have  bad  the  effect  and 
meaning  that  is  given  them  by  the  appellant 

[E]  The  payment  of  caution  or  composition 
money  does  not,  as  between  the  applicant  for 
a  warrant  and  the  state,  establish  the  rela- 
tions of  contracting  parties.  Its  payment  is 
necessary  before  the  question  whether  a  pat- 
ent should  be  granted  can  be  considered. 
Day  V.  Day,  22  Md.  638.  The  record  dis- 
closes no  error  in  the  action  of  the  commis- 
sioner In  XMSslng  said  orders,  and  they  will 
therefore  be  affirmed. 

Orders  affirmed,  with  costs  to  the  appellee. 


(UO  Md.  62S) 

MBTBOPOLITAN  LIFE  INS.  CO.  r.  JEN- 
NINGS.    (No.  12.) 
(Court  of  Appeals  of  Maryland.    June  26, 1917.) 

i;  Insttbance  ®=>668(6)  —  Actions  on  Pou- 
ciEB— Questions  fob  Jubt. 
Ordinarily  the  falsity  and  materiality  of 
representations  in  an  insurance  application  are 
questions  for  the  jurv ;  but  where  such  faleity 
and  materiality  are  shown  by  clear,  convindog, 
and  uncontradicted  evidence,  the  court  may  so 
rnle  as  a  matter  of  law. 

2.  iNsuBANcic  «=»64e(3)— Actions  on  Poli- 
cies—Bubdkn  OF  Pboof. 

The  burden  is  on  an  insurer  to  satisfy  the 
jur^  of  the  falsity  and  materiality  of  represen- 
tations in  the  application  for  insurance. 

3.  Insubanck  «=s>291(S)— Falss  Repbesenta- 
TioNB— Health  and  Phtsicai,  Condition. 

In  an  insurance  application,  made  in  Sep- 
tember, 1912,  the  applicant  represented  that  he 
was  in  sound  health,  bad  never  had  any  disease 
of  the  lungs,  had  not  been  attended  by  a  physi- 
cian for  12  years,  that  the  complaint,  when  at- 
tended, was  for  lumbago,  and  that  he  had  never 
been  under  treatment  in  any  hospital,  etc.  In 
fact,  the  applicant  bad  puhmonary  tuberculosis 
in  the  spring  of  1911,  was  under  treatment  in  a 


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609 


state  saDatorinm  from  March  to  July  of  that 
year,  and  from  November,  1911,  to  August, 
1912,  was  under  treatment  in  a  tuberculosis 
camp  connected  with  the  penitentiary,  in  which 
he  was  undergoing  sentence.  Beld,  that  the 
representations  were  false,  and  the  facts  indl- 
rated  that  insured  was  not  ignorant  of  their 
falsity. 

4.  Insurance  ®=3291(4)— False  Repbesenta- 
iiONS— Health  and  Phtbical  CoNDrnow. 
The  representations  were  not  only  material, 
but  were  vital  to  the  risk,  as  it  was  irrational 
to  suppose  that  the  insurer  would  have  issued 
the  policy,  it  apprised  of  the  true  state  of  facts. 

Appeal  from  Baltimore  City  Court;  Chas. 
W.  Heuisler,  Jndge. 

Action  by  Helen  B.  Freeburger  Jennings 
against  the  Metropolitan  Life  Insurance  Com- 
pany. Judgment  for  plaintiff,  and  defendant 
appeals.    Reversed,  without  new  trial. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKS)^  THOMAS,  PATTISON,  URNER, 
and  STOCKBRIDGE,  JJ. 

W.  Hall  Harris,  of  Baltimore  (W.  Hall 
Harris,  Jr.,  of  Baltimore,  on  the  brief),  for 
appellant.  Julius  H.  Wyman  and  Jacob  S. 
New,  both  of  Baltimore  (M.  Maurice  Meyer, 
of  Baltimore,  on  the  brief),  for  appellee. 

PATTISON,  J.  This  is  an  appeal  from 
a  judgment  of  the  Baltimore  dty  court,  re- 
covered by  the  appellee  against  the  appellant 
company  upon  a  policy  of  insurance  Issued 
by  it  upon  the  life  of  Edward  J.  Freeburger, 
brother  of  the  appellee.  The  policy,  the 
amount  of  which  was  $500,  with  the  appellee 
named  as  beneficiary  therein,  was  Issued  on 
October  16,  1912,  and  the  insured  died  on 
January  10,  1914.  The  sole  defense  made  to 
this  suit  was  that  the  insured  had  Induced 
the  appellant  company  to  Issue  the  policy  to 
him  by  false  representations  material  to  the 
risk. 

lo  his  written  application  to  the  ai^>el- 
lant  company,  the  insured  stated,  among  oth- 
er things,,  that  be  was  of  sound  health ;  that 
he  bad  never  had  any  disease  of  the  lungs; 
that  the  physician  who  last  attended  him  was 
Dr.  Bllllngslea,  the  date  of  such  attendance 
being  12  years  prior  to  his  application,  and 
that  his  complaint  at  such  time  was  lumbago ; 
that  he  had  not  been  under  the  care  of  any 
physician  within  2  years  prior  to  his  said  ap- 
plication, and  had  "never  been  under  treat- 
ment in  any  dispensary,  hospital,  or  asylum, 
nor  been  an  Inmate  of  any  almshouse  or  other 
institution."  The  application  in  which  these 
statements  are  found  was  by  the  Insurance 
agreement  made  part  of  the  policy  of  Insur- 
ance, and  it  was  further  agreed  that  said 
statements  were  "correct  and  wholly  true," 
and  were  to  form  the  basis  of  the  contract 
of  insurance  upon  the  issuance  of  the  policy. 
In  the  proofs  of  death,  which  were  signed 
by  the  plaintiff,  the  cause  of  death  as  given 
is  pulmonary  tuberculosis. 

The  uncontradicted  evidence  In  this  case, 
as  disclosed  by  the  record,  shows  that  the 


Insured  In  the  spring  of  1911  was  sufTerli^ 
from  pulmonary  tuberculosis,  and  that  on 
March  29,  1911,  he  entered  the  State  Sana- 
torium at  Sabillasville,  and  remained  there 
until  July  29,  1911,  under  treatment  of  Dr. 
Cullen,  superintendent  of  said  Institution,  and 
during  the  whole  of  said  time  he  suffered 
from  pulmonary  tuberculosis.  He  left  that 
institution  to  attend  the  United  States  Dis- 
trict Court  of  Maryland,  in  which  court  he 
had  beea  indicted  for  the  violation  of  th^ 
Oleomargarine  law.  The  trial  of  his  case 
had  been  postponed  at  the  request  of  Dr. 
Oullen,  because  of  the  advanced  tubercular 
condition  of  the  Insured  in  the  spring  of  1911. 
On  June  6th  Dr.  Cullen  wrote  Hon.  John 
Philip  Hill,  the  United  States  district  attor- 
ney, saying: 

"Mr.  Freeburger  has  a  pretty  far  advanced 
tuberculosis  throughout  both  lungs,  and  if  it 
were  possible  for  his  case  to  be  postponed  until 
the  weather  is  cooler,  it  would  be  very  much  bet- 
ter for  him." 

He  was  tried  in  October,  and  was  convicted 
and  sentenced  to  13  months  In  the  Atlanta 
Penitentiary.  His  actual  term  of  imprison- 
ment in  that  institution  commenced  on  Octo- 
ber 16,  1911,  and  expired  on  August  16,  1912. 
While  so  Imprisoned  he  was  on  November 
4,  1911,  transferred  to  the  tuberculosis  camp 
within  the  prison,  and  there  he  remained 
until  the  end  of  the  term  of  his  sentence 
under  the  treatment  of  the  prison  physician 
for  pulmonary  consumption,  and  while  in  the 
camp  "he  received  open  air  treatment  within 
the  tent  colony,  with  appropriate  nourishing 
tuberculosis  diet."  Upon  his  discharge  from 
the  Atlanta  prison  on  August  16,  1912,  he  re- 
turned to  Baltimore,  and  on  September  lOth 
following  made  and  signed  the  written  appli- 
cation containing  the  above-mentioned  state- 
ments and  representations. 

At  the  conclusion  of  the  evidence  the  de- 
fendant offered  a  prayer  asking  the  court  to 
instruct  the  Jury: 

"That  the  uncontradicted  evidence  In  this 
case  shows  that  statements  made  at  the  time  of 
the  signing  the  application  for  insurance  by  the 
insured,  as  contained  in  said  application,  were 
untrue,  and  that  those  statements  being  material 
to  the  risk,  their  verdict  must  be  for  the  de- 
fendant" 

This  prayer  was  refused,  and  prayers  sub- 
mitting the  case  to  the  consideration  of  the 
Jury  were  granted  to  both  the  plaintiff  and 
defendant.  It  is  contended  by  the  appellant 
that  its  prayer  directing  a  verdict  for  the  de- 
fendant should  have  been  granted,  and  because 
of  the  court's  refusal  to  do  so  the  Judgment 
of  the  court  below  should  be  reversed. 

[1 ,  21  This  court  has  said  a  number  of 
times  that  ordinarily  it  is  the  province  of 
tJie  Jury  to  determine  the  falsity  and  mate- 
riality of  the  representations  made  in  an  ap' 
plication  for  Insurance  policy,  and  the  burden 
is  upon  the  defendant  to  satisfy  the  Jury  of 
the  truth  of  these  defenses;  but  where  the 


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101  A.-39 


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610 


101  ATLANTIC  REPORTER 


(Md. 


falsity  and  materiality  of  the  representations 
are  shown  by  clear,  convincing,  and  uncon- 
tradicted evidence  the  court  may  so  rule  as 
a  matter  of  law.  Fidelity  Mutual  Life  In- 
surance Association  v.  Flcklln,  74  Md.  173, 
21  Atl.  680,  23  Ati.  197 ;  Dulany  y.  Fidelity 
4  Casualty  Co.,  106  Md.  17,  66  Atl.  614; 
Mutual  Life  Insurance  Co.  v.  Rain,  108  Md. 
353,  70  Atl.  87 ;  Bankers'  Ufe  Insurance  Co. 
V.  Miller,  100  Md.  1,  50  Atl.  116;  Maryland 
Casualty  Co.  v.  Gehrmann,  96  Md.  634,  54 
Atl.  678 ;  MtntL  Life  Insurance  Ca  v.  Millar, 
113  Md.  693,  78  Atl.  483 ;  Mutual  Life  Insur- 
ance Co.  V.  Mullan,  107  Md.  463.  69  Atl.  385 ; 
Forwood  V.  Prudential  Insurance  Co.,  117 
Md.  259.  83  AtL  169. 

[3, 4]  The  uncontradicted  evidence  that 
Freeburger,  so  early  as  March,  1911,  was  suf- 
fering from  pulmonary  tuberculosis,  because 
of  which  he  was  sent  to  the  State  Sanato- 
rium at  Sablllasville,  Md.,  where  he  was  un- 
der the  treatment  of  Dr.  OuUen,  and  where 
he  remained  for  several  months,  until  his 
trial  in  the  fall  of  that  year,  which  resulted 
In  his  conviction  and  sentence  to  the  Atlanta 
prison,  where  he  was  again  treated  by  the 
physician  in  charge  for  tuberculosis  of  the 
lungs  until  his  discharge,  less  than  a  month 
.before  the  date  of  the  application,  shows 
the  falsity  of  the  representations  made  by 
him  that  he  was  last  attended  by  Dr.  Bll- 
llngslea  for  lumbago  12  years  prior  to  his 
application ;  that  he  had  never  suffered  from 
any  lung  disease ;  that  he  bad  not  been  under 
treatment  In  any  dispensary,  hospital,  or 
asylimi  or  other  institution;  and  we  may 
further  add  that  the  existence  of  these  facts, 
disclosed  by  such  uncontradicted  evidence, 
makes  It  Impossible  to  believe  that  the  in- 
sured, In  making  such  representations,  was 
Ignorant  of  their  falsity.  The  representa- 
tions made  were  not  only  material,  but  were 
vital  to  the  risk,  and  of  such  a  character  as 
to  make  it  irrational  to  suppose  that  the  ap- 
pellant would  have  issued  the  policy  if  It 
had  been  apprised  of  the  true  state  of  facts 
to  which  the  representations  were  made. 

The  prayer  directing  a  verdict  for  the  de- 
fendant should  have  been  granted,  for  which 
reason  the  Judgment  of  the  court  below  will 
be  reversed,  and  as  there  should,  in  our  opin- 
ion, be  no  recovery  in  this  case,  the  judg- 
ment will  be  reversed  without  awardbtg  a 
new  trial. 

Judgment  reversed,  without  new  trial,  with 
costs  to  the  appellant 


(130  Hd.  617) 

MORGAN  V.  CLEAVER.     (No.  11.) 

(Court  of  Appeals  of  Maryland.    June  26,  1917.) 

1.  Bills  and  Notes  ®=34n2(3)  —  Actions  — 
Defenses— Failure  of  Consideratio.v. 
As  between  ttie  immediate  parties  to  a  ne- 
gotiable instrument,  it  ia  competent  to  show  that 
thtf  consideration  baa  failed. 


2.  Bills  ard  Notes  «=»489G9— Actiors-Is- 

8UK8. 
In  assumpsit  between  the  original   parties 
to  a  negotiable  Instrument,  the  defense  of  fail- 
ure of  consideration  may  be  shown  under  tlie 
general  issues. 

3.  Bills  and  Notes  €=3480(C9— Assumfsr— 
Pleading  —  Sfbcial  Fuea  on  Eqoitabli 
OsoDRns. 

In  assumpsit  on  defendant's  check,  payment 
of  which  was  refused,  the  defense  that  check 
was  given  pursuant  to  a  contract  with  plaintiff, 
as  administrator,  for  tbo  sale  of  land  belong- 
ing to  the  estate,  and  that  the  contract  wa* 
void  because  the  administrator  acted  without 
authority,  is  a  defense  in  the  nature  of  failure 
of  consideration,  available  to  defendant  under 
the  general  issue,  and  a  plea  on  eqoitaUa 
grounds,  under  Code  Pub.  Civ.  Lftws,  art.  76,  i 
86,  is  bad  on  demurrer. 

4.  Action  «=»24r-PLKADiNG — Defenses. 

Code  fSib.  Civ.  Laws,  an.  75,  |  86,  which 
allows  defenses  on  equitable  grounds,  was  in- 
tended to  permit  a  defendant  to  plead  defense 
valid  in  equity,  but  not  previously  available  at 
law,  and  does  not  permit  defen!<e8  good  at  law  to 
be  pleaded  on  equitable  grounds. 

Appeal  from  Oicuit  Oour^  Koit  County. 

"To  be  offidally  reported." 

Assiunpsit  by  Henry  Cleaver  against  Rob- 
ert H.  Morgan.  Judgment  for  plalutiCF,  and 
defendant  appeals.    Affirmed. 

Argued  before  BOXD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  TIE. 
NGU,  and  STOCKBRIDGE,  JJ. 

L.  Wethered  Barroll,  of  Baltimore  (Barroll 
&  GIU,  of  Baltimore,  Hope  H.  Barroll,  of 
Chestertown,  and  John  S.  Gittlngs,  Jr.,  on 
the  brief),  for  appellant  Harrison  W.  Vlck- 
ers,  of  Chestertown,  and  Richard  S.  Rodney, 
of  Wilmington,  Del.,  for  appellee. 

BURKE,  J.  This  appeal  presents  for  con- 
sideration the  propriety  of  the  action  of  the 
circuit  court  for  Kent  county  In  sustaining 
a  demurrer  to  the  defendant's  third  amended 
plea.  The  plea  was  filed  on  equitable 
grounds  under  section  86,  art.  75,  of  the 
Code.  The  suit  was  in  assumpsit  Tlie  dec- 
laration contained  the  common  counts  and 
one  special  count,  which  is  here  inserted: 

"And  for  that  on  tho  6th  day  of  May,  1916, 
the  defendant,  Robert  H.  Morgan,  made  his 
check  in  writing,  dated  on  that  day,  and  direct- 
ed the  same  to  the  Third  National  Bank  of 
Chestertown,  Maryland,  and  there  required  the 
said  bank  to  pay  to  the  plaintiff,  Henry  Cleaver, 
Admin.,  the  sum  of  five  hundred  dollars  ($500). 
who  indorsed  the  game,  which  waa  thereafter 
duly  presented  by  him  to  the  said  bank  for  pay- 
ment, but  was  not  paid,  being  returned  by  said 
bank  as  protested  and  marked  'payment  stop- 
ped' by  written  request,  all  of  which  notice  was 
given  to  the  defendant  and  that  the  check  still 
remains  unpaid." 

To  this  declaration  the  defendant  pleaded, 
first  that  he  never  was  indebted  as  al- 
leged; secondly,  that  he  never  promised  as 
alleged;  and,  thirdly,  a  plea  on  equitable 
grounds  which  the  court  held  twd  on  de- 
murrer. The  case  went  to  trial  on  the  gen- 
eral issue  pleas.  The  docket  entries  incor- 
porated in  the  record  show  that  the  trial 


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MOBOAN  ▼.  CI/EAVSB 


611 


began  on  tbe  18th  and  was  concluded. on  tbe 
lOtb  of  October,  1916,  by  a  verdict  for  the 
[>lalntlff  for  $515.65,  and  tbat  Judgment  for 
that  sum  was  entered  against  the  defendant 
on  CM:ober  23,  1916.  They  also  show  that 
prayers  were  submitted  by  tbe  respective 
parties  and  passed  upon  by  the  court.  The 
evidence  and  prayers  are  not  In  the  record, 
but  It  will  be  assumed  that  all  defenses 
which  were  available  to  the  defendant  im- 
der  tbe  general  issue  were  pre8«ited  to  the 
court  and  Jury. 

Th  record  shows  that  the  plaintiffs  are 
the  heirs  at  law  of  Sarah  B.  Oleaver,  de- 
ceased, who  was  a  resldoat  of  New  Oastle 
(bounty,  DeL ;  that  at  the  time  of  her  death 
she  owned  a  farm,  containing  152  acres, 
more  or  less  situated  in  that  county;  and 
that  Henry  Cleaver,  her  son  and  one  of  the 
plaintiffs,  was  appointed  administrator  of 
her  estate.  The  equitable  plea  is  quite 
lengthy,  and  sets  out  In  full  an  agreement 
entered  into  on  the  6th  day  of  May,  1916, 
between  Henry  Cleaver,  administrator  of 
Sarah  B.  Cleaver,  and  Robert  H.  Morgan, 
the  defendant,  for  the  sale  to  and  purchase 
by  the  defendant  of  the  Delaware  farm  for 
the  sum  of  $15,000,  upon  the  following 
terms  and  conditions,  viz.: 

"Five  hundred  ($500.00)  dollars  npon  the 
execution  of  this  agreement,  and  the  balance 
upon^  the  delivery  of  a  deed  to  him  for  said 
premises.  It  is  agreed  that  possession  of  said 
property  shall  be  delivered  to  the  purchaser  on 
tho  1st  day  of  March,  A.  D.  1917,  and  the  said 
party  of  the  first  part  agrees  to  execute  and  de- 
liver to  the  said  party  of  the  second  part,  on 
or  before  the  lat  day  of  July,  A.  D.  1816,  a 
good  and  lawful  deed  in  fee  simple  for  said 
premises,  clear  of  all  incumbrances." 

It  is  then  alleged: 

"That  said  pretended  contract  was  made  and 
entered  into  in  the  state  of  Delaware,  where  said 
land  lay;  tbat  prior  to  and  at  the  time  of  tbe 
execution  of  this  pretended  agreement  Henry 
Cleaver,  administrator,  who  was  in  reality  and 
fact  administrator  in  the  state  of  Delaware,  in 
New  Castle  county,  of  Sarah  Cleaver,  who  in 
her  lifetime  owned  the  farm  mentioned  in  said 

erotended  contract  of  sale,  which  farm  npon 
er  death  intestate  descended  to  the  plaintiffs, 
aa  her  heirs  at  law,  as  tenants  in  common,  sub- 
ject to  a  mortgage  thereon  for  a  large  sum  of 
money  then,  on  May  6,  1910,  an  outstanding 
valid  lien  against  said  farm,  and  the  said 
Henry  Cleaver,  administrator,  liad  no  power 
or  authority  under  the  laws  of  tbe  state  of 
Delaware  to  sell  said  farm,  and  had  obtained  no 
authority  or  order  from  tho  orphans'  court  of 
New  Castle  county,  Delaware,  to  sell  any  of 
tbe  real  estate  of  Sarah  Cleaver,  deceased;  that 
section  3417  of  the  Itevised  Code  of  Delaware, 
in  force  at  the  time  of  the  execution  of  this  pre- 
tended agreement,  sets  forth  the  prerequisite 
conditions  for  the  sale  of  real  estate  such  as  was 
attempted  to  be  sold  by  this  administrator,  none 
of  which  conditions  have  been  complied  with, 
□or  had  been  complied  with  by  Henry  Cleaver, 
administrator,  at  the  time  of  the  execution  of 
this  pretended  contract;  that  therefore  the  same 
was  utterly  void  and  of  no  effect  under  the  laws 
of  tbe  state  of  Delaware;  that  the  defendant 
should  not  in  any  wise  be  compelled  to  pay  the 
said  alleged  check  so  obtained  from  him  under 
a  pretended  contract  which  could  not  have  been 
enforced  by  any  of  tho  parties  to  the  attempted 


execntioa  of  the  same,  nor  oonld  this  defend- 
ant have  compelled  all  the  owners  of  the  fee  in 
said  farm  to  execute  to  him  a  deed  in  fee  simple, 
clear  of  all  liens  (including  said  mortgage)  for 
said  farm,  and  tbe  attempted  performance  of 
which  by  Henry  Cleaver,  administrator,  would 
have  been  and  would  be  an  illegal  and  void  act 
on  his  part,  and  in  no  wise  would  have  bound 
or  would  bind  the  persons  who  held  the  legal 
and  equitable  title  to  the  said  farm  to  convey 
a  good  title  to  this  defendant;  that  the  check 
sued  on  In  this  case  was  executed  and  delivered 
to  Henry  Cleaver,  administrator,  in  Mew  Castle 
county,  in  the  state  of  Delaware,  under  the 
facts,  conditions,  and  circumstances  above  re- 
cited and  set  forth,  and  no  consideration  for 
the  said  check  passed  from  the  defendants,  nor 
any  of  them,  for  the  said  check  to  the  defend- 
ant" 

[1,2]  The  plaintttb  In  this  suit  are  the 
heirs  at  law  of  Sarah  B.  Cleaver  and  the 
owners  of  the  farm,  and  there  is  no  allega- 
tion in  the  plea  that  a  deed  of  tbe  character 
mentioned  In  the  contract  had  not  been  ten- 
dered  the  defendant.  The  whole  defense  set 
up  in  the  plea  Is  the  total  failure  of  the 
consideration  for  tbe  check,  by  reason  of  the 
failure  of  Henry  Cleaver,  tbe  administrator, 
to  obtain  from  the  orphans'  court  of  Mew 
Castle  county,  Del.,  an  order  for  the  sale 
of  the  farm  under  section  3417  of  the  Re- 
vised Code  of  that  state.  That  section 
provides  fbr  the  sale  of  a  decedent's  real  es- 
tate, where  bis  personal  estate  is  insufficient 
to  pay  his  debts.  This  section  does  not  ap- 
pear to  have  any  application  to  this  case, 
because  it  is  not  alleged  that  tbe  personal  es- 
tate of  Sarah  B.  Cleaver  was  not  sufficient  to 
pay  her  debta.  If,  however,  such  were  the 
fact,  or  because  of  that,  or  for  any  other 
reason,  Henry  Cleaver,  tbe  administrator, 
did  not  or  could  not  deliver  to  tbe  defendant 
a  fee-simple  title  to  said  t&rm,  clear  of  all 
Incumbrances,  tbat  defense  was  open  under 
the  general  issue,  and  it  Is  reasonable  to  pre- 
sume was  attempted  to  be  proved  at  the  trial. 
It  is  the  settled  law  of  this  state  that  as  be- 
tween tbe  Immediate  parties  to  a  negotiable 
Instrument,  as  in  this  case,  the  question  of 
consideration  -  Is  always  open,  and  It  la 
competent  to  show  that  the  consideration  bad 
failed,  and  this  defense  can  be  shown  imder 
the  general  Issue.  Ingersoll  v.  Martin,  68 
Md.  68,  42  Am.  R^.  322;  Spies  v.  Rosen- 
stock,  87  Md.  14,  39  AtL  268;  WllUamB  V. 
Huntingdon,  68  Md.  580,  13  AtL  836,  6  Am. 
St  Rep.  477. 

[3, 4]  The  defense  relied  on  in  the  equita- 
ble plea  being  open  and  available  to  the  de- 
fendant under  the  pleas  already  in  tbe  case^ 
the  court  committed  no  error  In  sustaining 
the  demurrer.  The  statute  (Code,  art  75,  | 
80),  "which  allows  defenses  on  equitable 
grounds,  was  Intended  to  permit  a  defendant 
to  plead  many  defenses  valid  in  equity,  but 
not  previously  available  at  law.  Taylor  y. 
State,  73  Md.  222,  20  AtL  914,  U  Ia  R.  A. 
852.  A  defense  which  Is  good  at  law 
cannot  be  pleaded  on  equitable  grounds,  be- 
cause it  Is  only  such  a  defense  as  could  not 
formerly  have  been  pleaded  at  law  that  is 


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612 


101  AlXiANTIO  REPOUTEB 


(Md. 


now  let  In  on  eqnltable  grounds."    Robey  ▼. 
State,  TJse  of  Mallery,  94  Md.  61,  60  ,Atl. 
411,  89  Am.  St  Rep.  405;   Albert  T.  Freas, 
103  Md.  691,  64  Ati.  282. 
Judgment  affirmed. 

(131  Md.  lU) 

HAMMOND  V.  DU  BOIS.    (No.  20.) 
(Court  of  Appeals  of  Maryland.    June  27, 1017.) 

1.  Troveb  and  Conversion  «=»1— Stidbncb 
— Sufficiency. 

The  action  of  trover  cannot  be  maintained, 
without  a  conversion. 

2.  T80VEB  AND  CONVEBSION  €=»l,  40(4)— DX- 
BECT  OB  OONSTBUCTIVE  CONTEBSION. 

A  conversion  may  be  either  direct  or  con- 
structiTO,  and  may  be  proved  directly  or  by  in- 
ference. 
8.  Tboveb  and  Convebsion  «=>35— Actions— 

Demand  and  Refusal. 
When    plaintiff   fails    to    prove   an    actual 
conversion,   it   will   be   necessary   for  bim   to 
prove  a  demand  and  refusal  at  the  timo  when 
defendant  had  the  power  to  give  up  the  goods. 
4.  Troveb  and  Conversion  €=>40(4)  —  Dk- 

uand  and  Refusai^Rebxtttal. 
A  demand  and  refusal  are  only  evidence  of 
a  prior  conversion,  which  may  be  explained  and 
rebutted  by  evidence  to  the  contrary. 
6.  Tbovee  and  Conversion  ®=»3— Intent  to 

CoNVEBT— Necessity. 
To  entitle   plaintiff   to   recover   In   trover, 
there  must  be  evidence  of  an  intention  of  de- 
fendant either  to  take  to  himself  the  property 
in  the  goods  or  to  deprive  the  plaintiff  of  them. 

6.  Corporations  ®=9l33  —  Tkansfeb  of 
Stock— Demand  and  RefcsaI/— Evidencb— 
Sufficiency. 

In  an  action  for  the  conversion  of  certifi- 
cates of  stock,  evidence  held  insufficient  to  show 
a  demand  upon  defendant  and  a  refusal  by  him 
to  make  the   transfer  desired. 

7.  Principal  and  Agent  ®=>164(1)  —  Acts 
Not  as  Agent— Ratification. 

A  principal,  by  his  subsequent  ratification 
or  acquiescence,  may  become  liable  for  the  un- 
authorized acts  of  his  agent;  but  this  principle 
presupposes  that  the  act  complained  of  was  the 
act  of  the  one  as  agent  or  on  behalf  of  the  prin- 
dpal. 

8.  Equity  ®=s423  —  Decbee  —  Pkbsonb  Not 
Parties. 

Where  a  company  was  not  a  party  to  the 
suit,  no  decree  could  have  lieen  pamed  affecting 
its  interests. 

Ai>peal  from  Superior  Court  of  Baltimore 
City;   James  P.  Gorter,  Judge. 

Suit  by  Addison  G.  Du  Bols  against  John 
Hays  Hammond.  Judgment  for  plaintiff,  and 
defendant  appeals.    Reversed. 

Argued  before  BOYD.  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGE,  and  CONSTABLE,  JJ, 

Edward  N.  Rich  and  Joseph  O.  France,  both 
of  Baltimore,  for  appellant  John  C.  Glt- 
tlngs,  of  Washington,  D.  C,  and  William  Pep- 
per Constable,  of  Baltimore  (George  Win- 
ship  Taylor,  of  Baltimore,  on  tJie  brief),  for 
appellee. 

THOMAS,  J.  On  the  6th  of  June,  1907, 
Willard  D.  Doremus,  Addison  O.  Du  Bols, 
and  others  of  Washington,  D.  C,  parties  of 
the  first  part,  entered  into  a  contract  with 


John  P.  Miller,  of  Virginia,  party  of  the  sec- 
ond part,  whldi  recites: 

"That  whereas,  the  said  parties  of  the  firat 
part  are  the  owners  for  the  United  States  of 
the  entire  right,  title,  and  interest  in  a  certain 
invention  of  said  Doremus,  being  an  improve- 
ment in  cotton  ginning  machinery  for  which 
application  for  letters  patent  of  the  Cnited 
States  was  filed  in  the  United  States  Patent 
Office  May  17,  1907,  by  said  Doremus;  and 
whereas,  said  party  of  the  second  part  is  de- 
sirous of  securing  said  entire  right  title,  and 
interest  in  and  to  said  invention,  and  in  and  to 
the  letters  patent  which  may  be  granted  for 
said  invention  by  the  United  States  of  America." 

The  agreement  then  provided  that  in  con- 
sideration of  the  sum  of  $50,000,  to  be  paid  by 
Miller  as  therein  specified,  the  parties  of  the 
first  part  did  thereby  grant  bargain,  and  sell 
unto  him,  his  heirs  and  assigns,  "all  the  right, 
title,  and  interest  in  and  to  said  invention, 
and  in  and  to  any  improvements  thereon  that 
may  be  made  by  said  Doremus,  and  in  and 
to  the  letters  patent  for  said  invention,  and 
for  said  improvements  thereon  that  may  be 
hereafter  granted  by  the  United  States." 

On  the  27th  day  of  June,  1907,  Doremiig 
assigned  and  transferred  to  MlUer  "the  en- 
tire right  and  Interest  in  and  to  any  and 
all  patents  which  may  be  attained  in  ac- 
cordance with  this  agreement  in  countries 
foreign  to  the  United  States  on  said  cotton 
gin  and  on  any  and  all  improvements  there- 
on," in  consideration  of  the  agreement  that 
he  was  to  receive  one-half  of  the  profit  l" 
bonds,  stocks,  or  money,  realized  from  the 
sale  of  letters  patent  in  One  United  States  or 
In  foreign  countries ;  and  on  the  Ist  day  of 
July,  1907,  MUler,  in  consideration  of  $10, 
"and  other  valuable  consideration,"  sold  to 
Addison  G.  Du  Bois  "one-fourth  part  of  the 
entire  net  proceeds  from  said  invention  de- 
rived from  either  United  States  or  foreign 
patents  on  said  invention,  whether  the  pro- 
ceeds shall  be  in  money,  stocks,  bonds,  or 
other  thing  or  things  of  value." 

Thereafter  the  National  Cotton  Improve- 
ment Company  was  organized  under  the  laws 
of  Maine,  and  its  entire  capital  stock  of 
$1,600,000,  except  a  few  organization  shares, 
was  issued  to  Miller  for  the  American  rights 
to  the  Doremus  invention,  and  the  Doremus 
patents  were  assigned  to  that  company  by 
Miller  and  by  Doremus.  There  was  also 
formed  a  corporation,  called  the  Doremus 
Holding  Company,  to  which  Doremus  assign- 
ed his  application  for  the  foreign  rights,  and 
the  stock  of  the  latter  company  was  held  by 
Doremus,  Miller,  and  Daniel  J.  Sully.  Miller 
gave  to  one  J<din  J.  Welch  an  <9tion  on  the 
majority  of  the  stock  of  the  National  Cotton 
Improvement  Company,  and  through  Welch 
the  Doremus  invention  was  brought  to  the 
attention  of  the  appellant  in  this  case,  John 
Hays  Hammond.  Mr.  Hammond  referred  the 
matter  to  Mr.  Sully,  with  whom  he  was  in- 
terested in  a  plan  for  warehousing  cotton, 
for  investigation  and  a  report  as  to  the  value 


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HAMMOND  ▼.  DTJ  BOIS 


613 


of  the  Invention,  and  Mr.  Snlly  reported  that 
In  his  opinion  the  Doremus  Invention  was 
very  valuable,  and  "would  revolutionize  the 
whole  cotton  Industry." 

Welch  failed  to  make  the  payments  under 
his  option,  and  his  rights  became  forfeited, 
and  on  the  28th  of  December,  1909,  John  P. 
Miller,  John  Hays  Hammond,  and  Daniel  J. 
Sully  entered  into  the  following  agreement: 

"Agreement  made  this  28th  day  of  December, 
1909,  between  John  P.  Miller,  party  of  the 
first  part,  and  John  Haya  Hammond  and  Daniel 
J.  Sully,  acting  for  a  syndicate  to  be  composed 
of  themselves  and  one  or  more  other  persons^ 
parties  of  the  second  part,  witnessetb: 

"Whereas,  the  party  of  the  first  part  is  the 
owner  of  $471,200  at  par  of  the  preferred  stock 
and  $967,200  at  par  of  tho  common  stock  of 
the  National  Cotton  Improvement  CJompany; 
and  whereas,  the  parties  of  the  second  part  are 
about  to  incorporate,  or  cause  to  be  incorporat- 
ed, a  corporation  to  be  known  as  the  General 
Cotton  Securities  Company,  or  some  other  suit- 
able name,  for  the  purpose  of  promoting  the 
incorporation  and  organization  of  and  holding 
the  stock  and  other  securities  of  corporation 
engaged  in  the  ginning,  warehousing,  and  gen- 
eral development  of  tho  cotton  business,  which 
said  corporation  is  to  have  a  capital  of  $7,- 
000,000  common  and  $3,000,000  preferred  stock, 
whi<>h  preferred  stock  is  to  be  7  per  cent,  cumu- 
lative, with  a  preference  as  to  assets  upon  dis- 
solution, without  participation  in  profits  beyond 
7  per  cent.,  and  without  voting  power  as  long 
as  the  7  per  cent  dividend  is  paid;  and  where- 
as, the  party  of  the  first  part  desires  to  sell 
his  stock  to  tbe>said  corporation  to  be  formed, 
and  to  take  in  payment  therefor  cash  and 
common  stock,  and  the  parties  of  the  second 
part  desire  to  obtain  the  same  for  the  new 
corporation,  and  also  propose  to  finance  the  said 
corporation  by  the  sale  of  this  preferred  stock: 

"Now,  therefore,  this  agreement  witnessetb 
that  in  consideration  of  the  premises  and  of 
the  mutual  covenants  and  agreements  herein 
contained  the  parties  hereto  agree  to  and  with 
each  other  as  follows,  to  wit: 

"1.  The  party  of  the  first  part  agrees  to  de- 
liver to  the  parties  of  the  second  part  $471,200 
at  par  of  the  preferred  stock,  and  $967,200  at 
par  of  the  common  stock  of  the  National  Cotton 
Improvement  Company,  the  certificates  for  the 
same  duly  indorsed  for  transfer  to  be  lodged 
with  John  Hays  Hammond  forthwith. 

"2.  The  party  of  the  first  part  agrees  to  ac- 
cept in  payment  for  the  said  stock  $37,500  in 
cash  to  be  paid  upon  the  delivery  of  the  cer- 
tificates as  hereinbefore  provided,  $1,000,000  in 
full-paid  common  capital  stock  of  the  new  cor- 
poration, and  $1,000,000  in  full  preferred  stock 
thereof;  it  being  understood  and  agreed,  how- 
ever, that  the  common  capital  stock  of  the  new 
corporation  may  be  transferred  upon  the  issu- 
ance thereof  into  the  names  of  John  Hays  Ham- 
mond, D.  J.  Sully,  and  Frank  S.  Bright,  as  vot- 
ing trustees,  to  be  held  by  them  for  a  period 
not  exceeding  five  years,  which  voting  trust  is 
to  be  established  f^r  the  purpose  of  maintaining 
a  continuous  and  efficient  administration  of  the 
new  corporation  during  the  period  of  its  for- 
mation, promotion,  and  commencement  of  its 
operations,  and  in  the  event  that  siich  voting 
trust  is  formed  the  party  of  the  first  part  agrees 
that  the  $1,000,000  of  common  stock  be  paid 
and  delivered  in  the  shape  of  certificates  of 
beneficial  interest  in  that  amount  of  stock, 
subject  to  a  voting  trust.  The  parties  of  the 
second  part  may,  if  necessary  to  effect  the 
sale  of  the  preferred,  withdraw  or  omit  from  the 
voting  trust  so  much  of  the  common  stock  as 
may  be  used  as  bonus  on  such  sales:  Provided, 
that  at  all  times  at  least  a  majority  of  the  com- 
mon stock  aball  b«  subject  to  said  trust. 


"3.  Party  of  the  first  part  agrees  that  the 
parties  of  the  second  part  may  transfer  the 
said  stock  of  the  National  Cotton  Improvement 
Company  to  the  new  corporation  upon  such 
terms  and  conditions  as  will  provide  for  the 
issuance  by  the  new  corporation  to  the  parties 
of  the  second  part  of  $3,000,000  at  par  of  its 
common  stock  and  $8,000,000  at  par  of  its  pre- 
ferred stock,  the  balance  of  the  common  stock 
to  remain  unissued,  to  be  issued  hereafter  at 
the  discrotton  of  the  board  of  directors  for  cash 
or  property,  in  accordance  with  the  needs  of  the 
corporation:  Provided,  however,  that  in  addi- 
tion to  receiving  from  parties  of  the  second  part 
the  stock  of  the  National  Cotton  Improvement 
Company  the  new  corporation  shall  also  receive 
from  the  sale  by  parties  of  the  second  part 
of  the  stock  to  be  transferred  to  them  $1,600,- 
000,  which  sum  is  to  be  paid  into  the  treasury 
of  the  new  corporation  by  the  parties  of  the 
second  part  as  the  same  is  derived  from  the 
sale  of  the  preferred  and  common  stock  of  the 
new  corporation  issued  by  it  to  the  parties  of 
the  second  part 

"4.  The  party  of  the  first  part  agrees  that 
the  $1,000,000  of  preferred  stock  to  be  issued  to 
him  as  aforesaid  shall  be  lodged  with  the  syndi- 
cate, of  which  parties  of  the  second  part  are 
members,  and  for  which  they  are  acting  in  exe- 
cuting this  agreement  for  sale  by  them,  so  as 
to  net  to  party  of  the  first  part  the  sum  of 
$400,000. 

"5.  The  parties  of  the  second  part  agree, 
upon  the  deposit  of  the  said  certificates  of  stock 
of  the  National  Cotton  Improvement  Company 
with  John  Hays  Hammond  aforesaid,  to  pay 
to  the  party  of  the  first  part  $37,500  in  cash, 
and  to  proceed  forthwith  to  incorporate  the  new 
corporation  and  to  procure  the  issuance  of  its 
stock  to  them  ajs  hereinbefore  provided,  and 
when  and  as  soon  as  the  same  is  issued  to  es- 
tablish a  voting  trust  as  above  provided,  and 
deliver  to  party  of  the  first  part  certificates  of 
beneficial  interest,  subject  to  the  voting  trust, 
in  $1,000,000  par  of  the  common  stock  of  the 
new  corporation,  and  to  receive  and  hold  for 
the  account  of  the  party  of  the  first  part  $1,- 
000,000  at  par  of  the  preferred  stock  of  the 
new  corporation.  They  further  agree  to  trans- 
fer the  said  stock  of  tho  NationfJ  Cotton  Im- 
provement' Company  to  the  new  corporation, 
and  to  enter  into  an  agreement  with  it  to  use 
their  best  endeavors  to  sell  $2,000,000  of  its 
preferred  stock  and  so  much  as  may  be  neces- 
sary of  the  common  stock  which  they  receive, 
so  as  to  net  to  its  treasury  the  sum  of  $1,600,- 
000.  For  the  purposes  of  sale,  the  $2,000,000 
of  preferred  stock  to  be  sold  for  the  new  cor- 
poration and  the  $1,000,000  preferred  stock  to 
be  sold  for  the  party  of  the  first  part  shall  be 
taken  and  considered  as  one  block,  and  the 
parties  of  the  second  part  shall  use  their  best 
endeavors  in  every  respect  to  sell  and  market 
the  same.  Upon  the  sale  of  each  share  of  said 
preferred  stock  there  shall  be  paid  out  of  the 
proceeds  of  such  sale  by  the  parties  of  the  sec- 
ond part  to  the  party  of  the  first  part  the  sum 
of  $14  in  cash  until  the  sum  of  $400,000  has 
been  paid  in  full  as  herein  provided  for,  and 
a  proportionate  amount  shall  be  paid  into  the 
treasury  of  tho  new  corporation  until  the  $1,- 
600,000  herein  provided  for  has  been  paid  In 
full.  Anj  sum  or  sums  of  money  received  by 
parties  of  the  second  part  from  the  sale  of  the 
$1,000,000  preferred  stock  in  excess  of  tho  sum 
of  $400,000  shall  belong  to  parties  of  the  sec- 
ond part  as  and  for  their  compensation  for 
carrying  out  this  agreement  The  parties  of 
the  second  part  shall  be  under  no  personal  lia- 
bility by  virtue  of  this  agreement  except  to 
transfer  the  stock  received  by  them  from  the 
party  of  the  first  part  to  the  new  corporation, 
to  pay  the  sum  of  $37,600  io  cash,  to  deliver  to 
party  of  the  first  part  $1,000,000  in  common 
stock  or  voting  trust  certificates,  to  receive  for 
the  account  of  party  of  the  first  part  $1,000,000 


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101  ATLANTIC  REPORTER 


(Ml 


preferred  stook,  to  nse  their  best  endeavors  to 
sell  said  $1,000,000  of  preferred  for  the  party 
of  the  first  part  and  $2,000,000  preferred  for 
the  new  corporation,  and  to  account  to  party  of 
the  first  part  and  to  the  new  corporation  for 
their  respective  proportions  of  the  moneys  re- 
ceived from  the  said  sales. 

"0.  It  is  understood  and  agreed  by  and  be- 
tween the  parties  hereto  that  all  deliveries  of 
stock  and  all  payments  of  moneys  herein  pro- 
vided to  be  made  to  party  of  the  first  part  may 
be  made  to  Frank  S.  Bright,  as  his  representa- 
tive, and  the  parties  of  the  second  part  shall 
not  be  accountable  or  responsible  for  the  dis- 
tribution by  him  of  the  securities  or  moneys 
among  the  other  parties  if  any  entitled  thereto. 

"In  witness  whereof  the  parties  hereto  have 
hereunto  set  their  hands  the  day  and  year  first 
above.  Jno.  P.  Miller. 

"John  Hays  Hammond. 
"D.  J.  Sully. 

"Ralph  Polk  BudL" 

In  pursuance  of  the  above  agreement,  the 
General  Cotton  Securities  Company  was  in- 
corporated under  the  laws  of  Delaware,  and 
the  "first  meeting  of  the  corporation"  was 
held  at  its  ofllce  in  Wilmington,  Del.,  <m  the 
6th  day  of  January,  1910.  On  the  7th  of 
January,  1910,  the  General  Cotton  Securities 
Company  entered  Into  the  following  contract 
with  Daniel  J.  Sully: 

"This  agreement,  made  the  7th  day  of  Janu- 
ary, 1910,  between  Daniel  J.  Sully,  part^  of 
the  first  part,  and  General  Cotton  Securities 
Company,  a  corporation  of  the  state  of  Dela- 
ware, party  of  the  second  part: 

"Whereas,  Daniel  J.  Sully,  party  of  die  first 
part,  has  offered  to  deliver  to  this  company 
|471,200  at  par  of  the  preferred  stock  and 
9967,200  at  par  of  the  common  stock  of  the 
National  Cotton  Improvement  Company,  a  cor- 
poration of  the  state  of  New  Jersey,  with  a  total 
authorized  and  outstanding  issue  of  $500,000 
preferred  stock  and  $1,000,000  common  stoc^, 
and  to  pay  into  the  treasury  of  the  party  of  the 
second  part  $1,600,000  as  and  when  payment 
thereof  is  demanded,  in  consideration  of  the  is- 
suance to  him  by  the  party  of  the  second  part 
of  $3,000,000  at  par  of  the  preferred  and  $3,- 
000,000  at  par  of  the  common  stock,  full  paid 
and  nonassessable,  of  this  company;  and  where- 
as, the  said  National  Cotton  Improvement  Com- 
pany is  the  owner  of  valuable  patents  and  pat- 
ent rights  in  an  improved  cotton  gin  known  as 
the  'Dorcmus  gin,'  and  by  virtue  of  said  owner- 
ship the  stock  which  said  party  of  the  first 
part  has  offered  to  convey  is  in  the  estimation 
of  the  board  of  directors  of  party  of  the  second 
part  worth  not  less  than  $5,000,000,  and  is  nec- 
essary for  the  purposes  and  objects  of  the  in- 
corporation of  party  of  the  second  part: 

"Now,  therefore,  this  agreement  witnesseth 
that,  in  consideration  of  the  premises  and  of  the 
mutualities  of  this  agreement,  the  parties  here- 
to covenant  to  and  with  each  other  as  follows, 
to  wit: 

"First  Party  of  the  first  part  hereby  agrees 
to  deliver  or  cause  to  be  delivered  to  party  of 
the  second  part,  on  one  certificate  of  the  pre- 
ferred and  one  or  more  certificates  of  the  com- 
mon stock  of  the  National  Cotton  Improvement 
Company,  aggregating  4,712  shares  of  the  said 
preferred  stock  and  9.672  shares  of  the  common 
stock  thereof,  properly  executed  and  indorsed 
for  transfer,  the  said  delivery  to  be  made  to  the 
treasurer  of  the  party  of  the  second  part, 

"Seoond.  Party  of  the  first  part  agrees  to  pay 
to  the  part}/  of  the  second  part  from  time  to 
time,  upon  its  demand,  the  sum  of  $1,600,000 
in  cash,  without  interest,  and  agrees  to  make 
the  said  payments  at  such  times  and  in  such 
amounts  as  the  party  of  the  second  part  may 
nominate. 


"Third.  Party  of  the  second  part  agrees  to 
execute  and  deliver  to  the  party  of  the  first  part, 
upon  the  delivery  to  it  of  the  certificates  of 
stock  hereinbefore  provided  for  of  the  Nationri 
Cotton  Improvement  Company,  one  or  more 
certificates  of  the  preferred  stock  and  of  the 
common  stock  of  party  of  the  second  part,  ag- 
gi-ogating  $3,000,000  at  par  of  the  preferred  and 
$8,000,000  at  par  of  the  common,  which  stock 
is  hereby  declared  to  be  and  is  fall-paid  and 
nonassessable. 

"In  witness  whereof,  the  party  of  the  first 
part  has  signed  and  sealed  this  agreement,  and 
the  party  of  the  second  part  has  cansed  tii« 
same  to  bo  executed  by  its  president  and  its 
corporate  seal  to  be  hereunto  affixed,  duly  at* 
tested  by  its  secretary  the  day  and  year  first 
above  written. 

"Daniel  J.  Sully.    [Seal] 
"General  Cotton  Securities  Company, 
"By  Ralph  Polk  Buell,  President 

"Attest:   a  H.  Stanton,  Secretory." 

On  the  7th  of  January,  1910,  an  agreement 
was  entered  into  between  John  Hays  Ham- 
mond, Daniel  J.  Sully,  and  Frank  S.  Bright, 
as  constituting  voting  trustees,  and  the  stock- 
holders  of  the  General  Cotton  Securities 
Company,  by  which  the  common  stock  of  the 
company  was  placed  in  the  bands  of  the  vot- 
ing trustees  for  the  period  of  five  years,  upon 
the  trustees  issuing  therefor  to  the  stock- 
holders common  stock  trust  certlflcates.  Ttala 
agreement  was  signed  by  Daniel  J.  Sully  u 
the  holder  of  29,065  shares  of  the  common 
stock.  On  the  same  day  a  syndicate  com- 
posed of  Daniel  J.  Sully,  Jbhn  Hays  Ham- 
mond, Harris  Hammond,  Mont  D.  Rogers, 
and  D.  B.  Atherton  was  formed  for  the  pur- 
pose of  selling  $3,000,000  of  preferred  stodt 
and  $750,000  of  the  common  stock  of  the 
General  Cotton  Securities  Company.  Tbia 
syndicate  agreement  recited  that  Mr.  Sully 
had  acquired  from  the  General  Cotton  Se- 
curities Company  $3,000,000  of  its  preferred 
stock  and  $3,000,000  of  its  common  stock,  and 
provided  that  each  member  of  the  syndicate 
was  to  use  his  best  endeavors  to  sell  the  $3,- 
000,000  of  preferred  and  $750,000  of  the  com- 
mon stock ;  that  the  preferred  stock  was  to 
be  offered  for  sale  at  the  "price  of  $100  for 
each  $100  par  value  of  preferred  stock  and 
$25  par  value  of  common  stock,  if  payments 
therefor  be  made  in  one  sum,  hut  for  the 
price  of  $105  for  like  amount  of  preferred 
and  common  stock  If  payment  be  made  in  In- 
stallments" ;  that  Daniel  J.  Sully  diould  be 
syndicate  manager,  for  the  purposes  fbeieln 
specified ;  and  that  the  $3,000,000  of  prefer- 
red and  $750,000  of  common  stock  should  be 
transferred  by  Daniel  J.  Sully  into  hia  bands 
as  syndicate  manager,  and  the  certificates 
therefor  deposited  In  some  trust  company,  to 
be  selected  by  him,  under  an  agreement  by 
which  the  purchasers  of  the  stock  were  to 
make  payments  therefor  to  the  trust  compa- 
ny. On  the  9th  of  February,  1910,  Daniel  J. 
Sully  delivered  to  the  United  States  Trust 
Company  of  Washington,  D.  C,  certificate 
No.  1  for  30,000  shares  of  the  preferred  stock 
of  the  General  Cotton  Securities  Company, 
and  certificate  No.  3  for  7,500  shares  of  the 
common  stock  voting  trust  cartiflcateB  of  the 


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HAMMOND  ▼.  DU  BOIS 


615 


commjir,  both  oertlllcates  being  In  bis  name 
as  syndicate  manager,  wblch  the  trust  com- 
pany agreed  to  hold  In  accordance  with  the 
terms  of  his  letter  of  that  date,  and  In  ac- 
cordance with  the  provisions  of  the  syndi- 
cate agreement  On  the  Sd  of  Febroary, 
1910,  John  P.  LlUer  executed  the  following 
declaration  of  trust: 

"Declaration  of  Traat 

"Whereas,  I,  John  P.  Miller,  have  this  day 

received  the  foUowine  described  common  stock 

trust  certificates  of  toe  General  Cotton  Securi- 
ties Company: 

No.   4 2,550  Bbares.... John  P.  UlUer,  Tnuta*. 

No.   S 1,560  ■hares....Job]i  P.  Uiller,  Trustee. 

No.   • 100  Bbarei.... John  P.  Miller,  Trustee. 

No.   7 100  shares.... John  P.  Miller,  Trustee. 

Mo.   t. 100  shares.... JohB  P.  Miller,  Trustee. 

No.   9 100  shares.... John  P.  Miller,  Trustee. 

No.  10 100  shares.... John  P.  Miller,  Trustee. 

No.  11 2,275  shares John  P.  Miller,  Trustee. 

No.  12 1,600  shares John  P.  Miller,  Trustee. 

No.  13 600  sbarea.... John  P.  Miller,  Trustee. 

No.  U 600  shares.. ..John  P.  Miller,  Trustee. 

No.  15 400  shares.... John  P.  Miller,  Trustee. 

No.  16 110  shares.... John  P.  Miller,  Trustee. 

No.  17 165  shares.... John  P.  Miller,  Trustee. 

"And  whereas,  I  have  redelivered  said  cer- 
tificates for  deposit  in  escrow  for  the  period  of 
18  months,  and  said  certificates  have  been  de- 
posited in  a  safo  deposit  box,  rented  in  the 
names  of  Daniel  J.  Sully  and  F.  S.  Bright;  and 
whereas,  said  certificates  are  deposited  under 
•a  agreement  that  they  shall  not  be  sold  for 
said  period;  and  whereas,  I  am  the  owner  of 
certincate  Ko.  11  for  2,275  shares  of  said  com- 
mon stock;  and  whereas,  I  hold  the  others  in 
trust: 

"Now,  therefore,  I,  John  P.  Miller,  trustee,  do 
hereby  declare  that  upon  the  termination  of 
said  escrow  Willard  D.  Doremus  will  be  entitled 
to  receive  said  certificates  Ncs.  4,  5,  6,  7,  8,  9, 
and  10,  Addison  G.  Du  Bois  will  l>c  entitled  to 
receive  certificates  Nos.  12,  13,  16,  and  17,  F. 
S.  Briglit  will  l>e  entitled  to  receive  certificate 
No.  14,  and  Wm.  Muerling  will  be  entitled  to 
receive  certificate  No.  15;  and  said  voting  trus- 
tees are  hereby  authorized  and  directed  to 
transfer  said  common  stoclc  trust  certificates  to 
the  individuals  thereto  entitled  as  above  indicat- 
ed. This  declaration  of  trust  is  to  be  deposited 
with  said  certificates  and  is  to  be  irrevocable, 
without  the  consent  in  writing  of  the  benefici- 
aries hereto. 

"In  testimony  whereof  I  hereunto  set  my  hand 
and  seal  this  3d  day  of  February,  A.  D.  1910,  at 
the  city  of  Washington.  District  of  Columbia. 
"John   P.   Miller,   Trustee.     [Seal.]" 

On  the  4th  of  March,  1910,  Mr.  Sully,  Mr. 
Hammond,  Mr.  Miller,  Mr.  Harris  Hammond, 
Mr.  Bright,  Mr.  Atherton,  treasurer  of  the 
General  Cotton  Securities  Company,  and  Mr. 
Baldwin  met  at  the  office  of  the  National 
Cotton  Improvement  Company  In  the  Union 
Trust  Building  In  Washington.  Mr.  Sully 
gave  Mr.  Bright  an  order  on  the  United 
States  Trust  Company  of  Washington  for 
certificate  A-3  for  30,000  shares  of  preferred 
stock  of  the  General  Cotton  Securities  Com- 
pany, and  Mr.  Bright  got  the  certificate  of 
stock  from  the  trust  company  and  brought  it 
back  to  the  meeting.  Certiflcate  A-3  was 
then  canceled,  and  certiflcate  No.  5-A  was  is- 
sued to  John  P.  Miller  for  10,000  sliares,  and 
certificate  No.  ft-A  for  4,000  shares  was  Is- 
saed  to  Daniel  J.  Sully,  syndicate  manager. 


I  The  10,000  shares  were  transferred  by  Miller 
I  to  Daniel  J.  Sully,  syndicate  manager,  and  a 
certificate  therefor,  being  certiflcate  7-A,  was 
Issued  to  him.  Certificates  6-A  and  7-A  were 
then  returned  to  the  United  States  Trust 
Company  by  Mr.  Bright  and  receipted  for  by 
that  company,  and  the  remaining  16,000 
shares  were  turned  Into  the  treasury  of  the 
General  Cotton  Securities  Company. 

It  thus  appears  from  the  evidence  referred 
to  that  the  American  patents  for  the  Dore- 
mus Invention  were  purchased  by  Miller  in 
1907  from  Doremus  and  others  interested 
therein  for  $50,000.  The  National  Cotton 
Improvement  Company,  which  will  hereafter 
be  referred  to  as  the  Improvement  Company, 
was  then  organized,  with  a  capital  stock  of 
$1,600,000,  and  the  American  patents  were 
transferred  by  MlUer  to  that  company  In 
consideration  of  96  per  cent  of  its  entire 
capital  stock,  and  the  patents  were  assigned 
by  Miller  and  by  Doremus  to  the  company. 
Upon  the  organization  of  the  General  Cotton 
Securities  Company,  Miller  transferred  to 
that  company  the  stock  of  the  improvement 
company,  in  consideration  of  the  payment  of 
$37,500  in  cash  and  $1,000,000  of  the  common 
stock  and  $1,000,000  of  the  preferred  stock  of 
the  latter  company.  It  also  appears  from 
the  evidence  that  the  $37,500  was  paid  by 
Mr.  John  Hays  Hammond  to  Mr.  Bright,  who 
paid  the  same  to  Mr.  Miller,  Mr.  Du  Bois,  Mr. 
Doremus,  and  others  Interested  therein,  and 
that  Mr.  Hammond  had  previously  paid  the 
$12,500,  being  the  balance  of  the  $50,000 
which  Mr.  Miller  had  agreed  to  pay  for  the 
American  rights. 

From  the  organization  of  the  General  Cot- 
ton Securities  Company  in  January,  1010, 
until  the  faU  of  1910,  Mr.  Sully  was  actively 
engaged  in  trying  to  sell  the  stock  of  the  Se- 
curities Company,  and  to  dispose  of  the  for- 
eign rights  in  the  Doremus  Invention.  To 
that  end  he  made  several  trips  to  England, 
and  a  number  of  tests  were  made  of  cotton 
gins  constructed  in  accordance  with  the  Do- 
remus patent  The  cost  of  these  tests,  as 
well  as  the  personal  expenses  of  Mr.  Snlly, 
were  borne  by  Mr.  Hammond.  In  Septem- 
ber and  October,  1910,  serious  dlCTerences 
arose  between  Mr.  Hammond  and  Mr.  Sully, 
which  resulted  in  Mr.  Hammond  telling  Mr. 
Sully  that  he  would  not  make  any  further 
advances  to  him  for  his  personal  use,  but 
that  he  would  make  further  efforts  himself 
to  sell  the  stock  of  the  company  and  would 
pay  the  cost  of  any  further  tests  of  the  Dore- 
mus gin.  Mr.  Sully  then  threatened  to  Issue 
a  prospectus  and  to  sell  the  stock  of  the  com- 
pany, and  Mr.  Hammond  told  him  that  if  he 
did  he  would  "repudiate"  the  prospectus  in 
every  paper  in  the  country ;  the  attitude  of 
Mr.  Hammond  being,  according  to  his  own 
testimony,  that  it  would  not  be  honest  to  sell 
the  stock  of  the  company  until  the  value  of 
the  Doremus  invention  could  be  fully  demon- 
strated by  further  tests  of  the  gin.    FoUow- 


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101  ATLANTIC  REPORTER 


(Md. 


Ing  this  Interview  Mr.  Sully  wrote  Mr.  Hara- 
mond  as  follows: 

"Office  of  Vice  President  and  General  Manager. 
"Washington,  D.  C,  October  12,  1910. 

"Mr.  John  Hays  Hammond,  71  Broadway, 
New  York,  N.  Y.— Doar  Sir:  I  inclose  you  here- 
with a  copy  of  a  letter  which  I  have  tendered 
to  Mr.  John  P.  Miller  to-day. 

"Yours  truly,  Daniel  J.  Sully. 

"P.  S.— I  have  informed  Mr.  Miller  and  his 
associates  that  you  yesterday  absolutely  refus- 
ed to  furnish  any  more  money,  which  you  wero 
obliged  to  do  under  our  contract,  for  the  further 
protection  of  the  General  Cotton  Securities  Com- 
pany, and  that  you  notified  me  that  you  would 
repudiate  in  every  newspaper  in  the  country 
any  prospectus  that  I  might  issue. 

"  D.  J.  S." 

The  letter  Inclosed  to  Mr.  Hammond  was 
u  follows: 

"Washington,  D.  C,  October  12,  1910. 

"Mr.  John  P.  Miller,  Washington,  D.  C— 
Dear  Sir:  Under  a  contract  made  with  you 
the  28th  day  ot  December,  1909,  between  John 
Hays  Hammond  and  myself  jointly,  acting  as 
a  syndicate,  which  waa  to  bo  composed  of  John 
Hays  Hammond  and  myself  and  one  or  more 
other  parties,  wherein  we  entered  into  a  con- 
tract with  you  whereby  we  were  to  organize  a 
corporation  with  the  capital  stocls  of  $7,000,000 
common  and  $3,000,000  preferred  stocic,  which 
preferred  stock  was  to  lie  7  per  cent,  cumulative 
with  a  preferment  as  to  assets  upon  dissolu- 
tion without  participation  in  profits  beyond  7 
per  cent. ;  and  also  we  desired  to  obtain  from 
you  your  interest  in  tho  National  Cotton  Im- 
provement Company,  for  the  General  Cotton 
Securities  Company,  and  also  obligated  our- 
selves to  finance  the  said  General  Cotton  Securi- 
ties Company  by  the  sale  of  the  preferred  stock 
of  the  General  Cotton  Securities  Company,  and 
to  use  our  best  endeavors  to  sell  the  preferred 
stock  to  meet  the  obligations  which  wo  entered 
into  with  you.  Under  that  contract,  now,  there- 
fore, please  take  notice  that  the  General  Cotton 
Securities  Company  was  formed,  under  the  re- 
ciuiremcsnts  of  that  contract  the  syndicate  was 
formed;  al.so  under  the  requirements  of  that 
M)ntract  1  have  used  my  best  endeavors  to  get 
the  consent  of  my  copartner  (John  Hays  Ham- 
mond) to  co-operate  vrith  me  in  placing  this 
stock  where  it  could  bo  sold.  I  have  been  un- 
able to  so  do.  Therefore,  to  absolve  myself 
from  any  liability,  financially  or  morally,  re- 
specting the  contract,  I  herevnth  inform  you 
That  I  will  on  your  demand  proceed  as  far  as 
I  can  to  turn  back  to  you  legally  all  and  any 
of  the  right  or  interests  that  I  may  have  undor 
this  contract. 

"Yours  truly,  Daniel  J.  Sully." 

On  the  12th  of  October  Mr.  Sully  also 
wrote  Mr.  Hammond,  tendering  bis  resigna- 
tion as  a  director  of  the  General  Cotton  Se- 
curities Company,  to  take  effect  when  the 
board  of  directors  accepted  the  same.  Mr. 
Hammond  and  Mr.  Sully  met  again  on  the 
6th  of  November,  when,  according  to  the  tes- 
timony of  Mr.  Hammond,  friendly  relations 
l)etween  him  and  Mr.  .Sully  were  partially 
restored,  with  the  understanding  that  Mr. 
Hammond  would  take  up  active  measures  to 
establish  the  value  of  the  Doremus  inven- 
tion, with  the  view  of  selling  the  stock  of  the 
wmpany,  and  arrangements  were  made  for 
a  meeting  of  the  directors.  On  the  16th  of 
November  the  directors  met  at  the  office  of 
the  company  in  Washington,  and  the  meeting 
TMUlted  in  a  further  breach  between  Mr. 


Hammond  and  Mr.  Sully,  and  no  action  on 
the  part  of  the  directoi:?.  Following  this 
meeting  W.  D.  Doremus  and  A.  G.  Du  Bols 
wrote  to  Mr.  Hammond,  Mr.  Sully,  and  Mr. 
Briglit,  as  the  board  of  trustees,  advising 
them  that  they  were  interested  to  the  extent 
of  three-fourths  in  the  trust  certificate  is- 
sued by  them  to  John  P.  Miller,  and  stating: 
"Our  information  is  to  the  effect  that  at  an 
alleged  meeting  of  the  board  of  directors  held 
nt  the  office  of  the  company  on  Wednciiday,  the 
16th  inst,  tho  previous  minutes  of  the  board  of 
directors,  or  what  was  supposed  to  be  the  pre- 
vious minutes  of  the  board  of  directors  (whidi 
were,  in  fact,  made  by  a  board  differently  con- 
stituted from  those  who  were  present  the  16th 
inst.),  were  physically  altered  in  an  attempt  to 
release  the  gentlemen  interested  in  the  syndi- 
cate, for  whom  Daniel  J.  Sully  was  acting,  from 
the  obligation  to  pay  into  the  treasury  of  the 
company,  upon  demand  made  therefor,  the  sum 
of  $1,600,000,  as  provided  for  under  the  con- 
tract made  by  the  former  president  of  the  com- 
pany with  said  Sully,  acting  for  said  syndi- 
cate, under  date  of  January  7,  1910." 

The  letter  also  demanded  that  the  board 
of  trustees  request  the  president  of  the  com- 
pany to  call  a  special  meeting  of  the  stock- 
holders for  the  purpose  of  removing  the  then 
board  of  directors.  On  the  same  day  Messrs. 
Du  Bols  and  Doremus  wrote  to  Mr.  Athertoa, 
the  treasurer  of  the  General  Cotton  Securi- 
ties Company,  calling  his  attention  to  the 
fact  that  there  was  in  his  possession  the 
preferred  and  common  stock  of  the  improve- 
ment company,  stating  that  they  had  been 
informed  of  certain  illegal  action  taken  by 
the  board  of  directors  of  the  Securities  Com- 
pany on  the  16tb  of  November,  which  was 
greatly  to  their  detriment  as  the  beneficial 
owners  of  three-fourths  of  the  trust  certiflr 
cates  issued  to  John  P.  Miller,  and  demand- 
ing that  he  retain  in  his  possession  the  stodc 
of  the  National  Cotton  Improvement  Com- 
pany until  a  proper  l>oard  of  directors  could 
be  elected  by  the  stockholders  of  the  Securi- 
ties Company.  They  also  wrote  to  Mr.  Ham- 
mond, informing  him  that  they  were  interest- 
ed in  the  stock  held  by  Mr.  Miller,  and  that 
"among  the  conditions  on  which  the  delivery 
of  the  stock  of  the  General  Cotton  Securities 
Company  by  it  to  Mr.  Sully  was  the  agree- 
ment that  he  made  on  behalf  of  the  syndi- 
cate to  pay  in  the  treasury  of  the  said  com- 
pany the  sum  of  $1,600,000" ;  that  they  had 
been  informed  that  an  attempt  bad  been 
made  to  alter  the  contract  made  by  Mr.  Sully 
with  the  company,  so  as  to  relieve  the  syndi- 
cate of  the  payment  to  the  company  of  said 
sum  of  $1,600,000 ;  and  that  they  were  advis- 
ed that  such  action  was  absolutely  Illegal. 
The  letter  concluded  by  stating  that  they 
would  hold  him  personally  responsible  for 
any  Injury  suffered  by  them  by  reason  of  any 
change  or  transfer  of  the  stock  then  stand- 
ing in  the  name  of  John  P.  Miller.  Mr.  Du 
Bols  and  Mr.  Doremus  also  wrote  to  Mr.  Mil- 
ler, on  the  18th  of  November,  1910,  as  fol- 
lows: 

"Dear  Sir:  Under  the  several  agreements  in 
existence  between  us,  you  have  been  authorized 
to  act  in  our  bohalf  and  interests  in  relatioa  to 


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tlie  stock  in  the  National  Cotton  Improvement 
Cotapany,  which  stood  in  your  name  alone,  and, 
aa  you  know,  we  acquiesced  in  the  agreement 
made  by  you  in  December,  1009,  with  the  syndi- 
cate represented  by  John  Hays  Hammond  and 
Daniel  J.  Sully.  In  carrying  out  the  agreement 
in  behalf  of  the  syndicate,  we  are  all  aware  of 
the  fact  that  the  General  Cotton  Securities  Com- 
pany, through  its  president  and  secretary,  se- 
cnred  a  contract  from  Mr.  Sully,  made  bi  be- 
half of  the  syndicate,  that  was  ^eatly  to  the 
advantage  of  all  of  us,  as  under  its  terms  the 
■yndicate  is  required  to  pay  into  the  treasury 
of  that  company  upon  demand  $1,600,000. 
Through  our  consent  you  have  been  the  repre- 
sentative member  for  our  joint  interests  on  the 
board  of  directors  of  the  General  Cotton  Securi- 
ties Company;  we  assuming,  of  course,  that  you 
would  In  every  way  protect  our  mutual  inter- 
ests. If  we  have  been  correctly  informed,  you 
have  failed  to  appreciate  that  the  recent  action 
taken  by  the  board  of  directors  of  the  General 
Cotton  Securities  Company,  or  what  is  sup- 
posed to  be  a  board  of  directors,  at  a  meetin; 
held  in  this  dty  on  Wednesday,  the  16th  inst,, 
has  jeopardized  oar  rights.  We  feel  sure  that 
you  must  appreciate  that  agreeing  that  the 
minutes  of  the  previous  meeting  held  by  the 
board  of  directors  in  New  York  on  January  7, 
1910,  should  bo  physically  changed,  so  as  to 
relieve  the  syndicate  from  its  obuifation  to  jMy 
into  the  treasury  of  the  company  $1,600,000 
upon  demand,  practically  places  us  in  the  posi- 
tion of  being  at  the  mercy  of  the  syndicate. 
Consequently,  we  demand  that  you  take  neces- 
sary steps  to  at  once  protect  the  interests  of 
all  of  us  in  the  stock  of  the  National  Cotton 
Improvement  Company,  which  was  turned  over 
by  you  through  the  syndicate  to  the  General 
Cotton  Securities  Company,  by  such  appropriate 
action  in  the  premises  that  will  impress  that 
stock  with  the  trust  that  you  represent  in  our 

behalf.  ^ 

"Tours  respectfully,         W.  D.  Doremus. 
"A-  G.  Dn  Bois." 

It  Is  apparent  that  the  theory  upon  wMch 
Mr.  Doremus  and  Mr.  Du  Bois  acted  in  writ- 
ing these  letters  was  that  Mr.  Hammond  was 
personally  liable  for  the  $1,600,000  which  Mr. 
Sully  agreed  to  pay  to  tbe  Securities  Com- 
pany, and  that  tbe  course  they  pursued  was 
based  upon  the  assumption  that  there  had 
been  a  formal  meeting)  of  the  board  ot  di- 
rectors of  the  Securities  Company  on  the 
16tb  of  November,  1910.  There  are  no  min- 
utes of  such  a  meeting  in  the  record,  and 
there  are  no  grounds  upon  which  Mr.  Ham- 
mond could  be  held  liable  for  tbe  sum  named. 
After  receiving  the  letter  from  Mr.  Du'Bols 
and  Mr.  Doremus,  Mr.  Hammond  tried  to  ar- 
range for  a  meeting  between  himself  and  Mr, 
Du  BolB  and  Mr.  Doremus,  and  went  to 
Washington  on  November  19th  to  meet  Mr. 
Doremus,  for  the  purpose  of  explaining  to 
bim  that  he  was  not  liable  for  the  $1,600,000 
referred  to  in  Mr.  Sully's  contract  with  the 
company,  and  that  the  directors  had  not  at- 
tempted on  November  16th  to  do  anything 
tbat  would  prejudice  his  Interest  While  In 
Washington  on  the  19tb  of  November  Mr. 
Hammond  learned  from  Mr.  Bright  that  Mr. 
Sully  bad  executed  a  contract  on  behalf  of 
the  Securities  Company  with  tbe  Fordyoe 
Company,  which  involved  tbe  stock  of  tbe 
Securities  Company.  Mr.  Bri^t  would  not 
explain  to  him  the  exact  terms  of  the  con- 
tract, and  Mr.  Hammond  immediately  tele- 


graphed to  Mr.  Atfaerton,  tbe  treasurer  r-f  the 
Securities  Company,  who  was  then  in  Little 
Bock,  Ark.,  that  he  had  just  learned  of  an 
"attempted  contract"  between  Mr.  Sully,  on 
behalf  of  the  Securities  Company,  and  the 
Fordyce  Company,  but  that  he  was  not  ac- 
quainted with  the  details,  and  directing  him 
to  wire  Mr.  Fordyce,  Sr.,  in  St  liOuis,  that 
Mr.  Sully  had  no  authority  to  mal;e  the  con- 
tract, that  It  was  in  violation  of  the  syndi- 
cate agreement,  and  absolutely  void. 

A  special  meeting  of  the  board  of  direc- 
tors of  the  General  Cotton  Securities  Com- 
pany was  called,  and  was  held  at  the  New 
Tork  ofiSce  of  the  company  on  the  23d  day  of 
November,  1910.  The  minutes  of  that  meet- 
ing show  that  the  return  of  the  $1,600,000  of 
the  preferred  stock  of  the  company  to  the 
treasurer  of  tbe  company  was  approved;  tbat 
the  letter  of  Daniel  J.  Sully  to  John  P.  Mil- 
ler of  October  12,  1910,  a  copy  of  which  was 
sent  by  Mr.  Sully  to  Mr.  Hammond,  was  pre- 
sented to  the  board,  and  with  it  the  follow- 
ing communication  from  Mr.  Hammond  to 
Mr.  Miller,  referring  to  Mr.  Sully's  letter: 

"Since  the  receipt  of  that  letter  I  have  made 
great  efforts  to  carry  out  the  contract  of  De- 
cember 28,  190©,  which  is  referred  to  in  Mr. 
Sully's  letter  to  you.  1  find  I  also  am  entirely 
unable  to  carry  out  the  contract  of  December 
28,  1909,  which  is  referred  to  in  Mr.  Sully's 
letter  to  you.  I  find  I  also  am  entirely  unable 
to  carry  out  the  unfulfilled  provisions  of  that 
contract,  and  I  therefore  join  with  Mr.  Sully  in 
informing  yon  that  I  will,  on  your  demand,  pro- 
ceed as  far  as  I  can  to  turn  back  to  yon  let^tlly 
all  and  any  of  the  rights  or  interests  that  I  may 
have  onder  that  contract 

"Tours  truly,  John  Hays  Hammond. 

"P.  S.— I  made  this  proposal  to  you  by  word 
of  mouth  on  Saturday,  November  19,  1910, 
and  I  am  writing  this  to  formally  confirm  my 
verbal  proposal.  J.  H.  H. 

"We  hereby  assent  to  the  above  proposal  as 
members  of  said  syndicate. 

"Harris  Hammond. 
"D.  B.  Atherton." 

Mr.  John  Hays  Hammond  then  offered,  "on 
behalf  of  the  vendors  (the  members  of  the 
syndicate),  those  members  present  assenting 
thereto,"  to  return  the  stock  of  the  company 
received  by  them  upon  the  acceptance  by  the 
company  of  the  proposal,  except  the  49  shares 
held  by  the  directors  and  officers  of  the 
company,  to  permit  the  cancellation  of  the 
certificates  for  the  same.  Mr.  Miller  stated 
tbat  he  had  written  a  letter  to  Mr.  Sully,  ac- 
cepting the  proposal  contained  In  his  letter  of 
October  12,  1910,  "and  demanded  the  re- 
delivery to  him  of  the  capital  stock  of  the 
National  Cotton  Improvement  Company  as  oA 
the  terms  set  forth  in  Mr.  Sully's  letter." 
Thereupon  the  board  of  directors  adopted 
the  following  resolution: 

"Whereas,  heretofore  this  company  entered  in- 
to an  agreement  with  Daniel  J.  Sully  as  set 
forth  in  the  minutes  of  the  first  meeting  of  the 
board  of  directors  whereby  there  was  transfer- 
red to  this  company  4,712  shares  of  the  prefei^ 
red  and  9,672  shares  of  the  common  stock  of 
the  National  Cotton  Improvement  Company  for 
certain  considerations  moving  from  this  compa- 
ny, to  wit,  $3,000,000  at  par  of  common  stock 


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101  ATLANTIO  BEPORTRR 


0(0. 


of   this  company,   and  $1,400,000  of  preferred 
•tock  of  gala  company;   and 

"Whereas,  thereby  and  therennder  Daniel  J. 
Sully  obligated  himself  personally  to  pay  on  de- 
mand for  the  additional  $1,000,000  of  the  pre- 
ferred stock  of  this  company  issued  to  him  and 
his  associates:   and 

"Whereas,  the  aforesaid  agreement  was  enter- 
ed into  on  or  about  the  7th  day  of  January, 
1910,  and  it  appears  from  the  statements  of  the 
vendors  to  this  company  (other  than  Mr.  Sully 
and  Mr.  Rogers)  of  the  said  National  Cotton 
Improvement  Company's  stoc^,  who  were  pres- 
ent at  this  meeting,  that  no  sales  of  this  com- 
pany's stock  have  been  effected,  and  that  all 
efforts  put  forth  by  said  vendors  to  effect  such 
sales  have  thus  far  failed;    and 

"Whereas,  the  said  vendors  present  hereat  are 
unable  to  state  definitely  when  any  sales  can 
be  effected  by  them  under  said  agreement ;    and 

"Whereas,  the  said  John  P.  Miller  has  receiv- 
ed the  offers  made  by  each  of  the  vendors  afore- 
said embodied  in  letters  read  to  this  board: 

"Resolved,  that  it  is  to  the  interest  of  the 
General  Cotton  Securities  Company  that  it  ac- 
cede to  the  request  of  the  said  vendors,  and  thus 
enable  the  said  vendors  to  meet  the  demand  of 
the  said  John  P.  Miller  for  the  return  of  the 
National  Cotton  Improvement  Company's  stock 
aforesaid,  and  that  a  refusal  on  their  part  in 
their  opinion  will  inevitably  precipitate  a  long 
and  expensive  litigation,  and  otherwise  compli- 
cate and  disastrously  affect  the  affairs  of  this 
company. 

"Resolved,  further,  that  this  company  hereby 
accepts  the  offer  of  the  vendors  to  rescind  the 
contract  aforesaid  and  to  return  to  it  the  bal- 
ance of  this  company's  capital  stock,  available 
for  this  purpose,  to  wit,  $2,905,100  of  common 
stock  of  said  company  and  21,400,000  par  value 
of  its  preferred  stock,  which,  together  with  the 
preferKd  stock  already  returned,  constitutes  the 
entire  stock  outstanding  under  said  contract,  less 
48  shares  held  by  the  directors  and  ofScers  of 
the  company,  and  that  the  certificates  for  all 
of  said  shares  of  this  company,  except  the  di- 
rectors' shares,  be  and  they  are  hereby  called  in 
and  canceled. 

"Resolved,  further,  that  the  treasurer  and  sec- 
retary of  this  company  be  and  they  are  hereby 
authorized  and  directed  to  return  the  shares  of 
the  capital  stoc^  of  the  Naticmal  Cotton  Im- 
provement Company  and  the  certificates  there- 
for in  accordance  herewith,  and  to  cancel  on  the 
books  of  this  company  the  aforesaid  shares  of 
this  company,  except  the  49  shares  of  common 
stock  which  are  not  available  for  this  purpose, 
and  to  take  such  other  and  further  action  in  the 
premises  as  may  be  necessary  or  proper. 

"Resolved,  further,  that  this  company  execute 
by  its  pro^r  officers  an  assignment  of  all  of 
its  ri|ht,  title,  and  interest  in  and  to  any  ap- 
plications of  J'ohn  R.  Fordyce  for  claimed  im- 
provements upon  the  Doremus  gin  to  National 
Cotton  Improvement  Company,  the  owner  of  the 
said  original  patents,  to  whom  same  under  the 
circumstances  and  in  equity  and  good  faith  be- 
long: Provided,  the  said  National  Cotton  Im- 
provement Company  pays  to  this  company,  by 
way  of  reimbursement,  tbe  expenses  incurred  by 
it  or  its  officers  incident  to  toe  preparation,  fil- 
ing, and  assignment  of  said  applications,  not, 
however,  to  exceed  the  sum  of  $165. 

"Resolved,  that  in  addition  to  any  other  notice 
that  may  be  required  by  the  foregoing  action, 
that  notice  of  the  cancellation  of  the  certificates 
of  the  capital  stock  of  this  company  be  given 
by  the  trpasurer  to  the  United  States  Trust 
Company,  Washington,  D.  C,  being  certificates 
A-6  for  4.000  shares  of  the  preferred  stock  of 
said  company,  and  A-7  for  10,000  shares." 

On  tbe  day  foUowlDg  tbe  meeting  of  tbe 
directors  Just  referred  to  Mr.  Hammond  left 
Xew  Tork  on  a  trip  to  Rus.9la.  After  his  re- 
turn to  America,  Willard  D.  Doremus  and 


Addison  O.  Du  Bols  filed  a  MU  of  complaint 
against  him,  the  National  Cotton  Improve- 
ment Company,  Daniel  J.  Sully,  Frank  S. 
Bright,  John  P.  MUler,  and  the  United  States 
Trust  Company,  on  the  3d  of  Mardi,  1911,  in 
the  Supreme  Court  of  the  District  of  Colum- 
bia. The  bill  is  a  lengthy  one,  covering  16 
pagea  of  the  printed  record,  and  it  Is  only 
necessary  in  this  case  to  set  out  the  prayers 
for  relief,  which  .were  as  follows : 

"2.  That  the  court  pass  a  decree  herein  di- 
recting the  defendants  Daniel  J.  Sully  and 
Frank  S.  Bright  to  deliver  to  the  plaintiff  Wil- 
lard D.  Doremus  trust  certificates  Nos.  4,  5,  6, 
7,  8,  9,  and  10,  representing  the  shares  of  com- 
mon stock  of  the  General  Cotton  Securities  Com- 
pany, and  deliver  to  Addison  G.  EKi  Bois  trust 
certificates  Nos.  12,  IS,  16,  and  17,  representing 
the  shares  of  c<»nmon  stodf  of  the  General  Cot- 
ton Securities  Company. 

"3.  That  the  court  pass  a  decree  herein  di- 
recting the  defendants  John  Hays  Hammond, 
Danid  J.  Sully,  and  Frank  S.  Bright,  upon  the 
presentation  and  delivery  to  them  of  the  trust 
certificates  of  beneficial  interests  Noa.  4  to  10, 
inclusive,  and  12,  13,  16,  and  17  by  tbe  plain- 
tiff, to  deliver  to  said  plaintiffs  the  common  stock 
represented  thereby. 

4.  Tliat  the  court  pass  a  decree  herein  au- 
thorizing and  directing  the  United  States  Trust 
Company  to  forthwith  deliver  to  the  plaintiff 
Doremus,  out  of  the  10,000  shares  of  preferred 
stock  now  in  its  possession,  5,000  shares,  and 
to  tbe  plaintiff  Du  Bchs  2,500  shares; 

"6.  That  the  defendant  the  National  Cotton 
Improvement  Company  be  enjoined  pendente  lit* 
and  permanently  from  entering  into  any  oon- 
tract  of  any  lund  or  description  with  any  one 
in  relation  to  the  Doremus  patents  or  any  im- 

Cvements   thereon,   or   transferring   upon   iti 
ks  any  stock  that  now  stands  in  the  name  of 
John  P.  Miller,  trustee. 

"6.  That  the  defendant  John  P.  Miller  be  en- 
joined pendente  lite  and  permanently  from  en- 
tering into  any  contract  of  any  kind  or  descrip- 
tion with  any  one  in  relation  to  the  stock  now 
in  his  possession  and  standing  on  the  books  of 
the  National  Cotton  Improvement  Company  in 
the  name  of  John  P.  Miller,  or  John  P.  MUler, 
trustee,  and  that  the  oourt  pass  a  mandator 
order  in  this  cause  demandinK  that  John  P. 
Miller  forthwith  return  to  the  lawful  treasurer 
of  the  General  Cotton  Securities  Company  all 
the  stock,  or  the  certificates  for  shares  of  stock, 
of  the  National  Improvement  Company,  received 
by  him  from  the  treasurer,  or  any  other  officer, 
or  the  Generol  Cotton  Securities  Company,  ei- 
ther previous  to  or  subsequent  to  the  23d  day 
of  November,  1910,  and  to  assign  or  reassign 
any  patents  or  applications  for  patents  in  rela- 
tion to  any  improvements  made  upon  the  cotton 
gin  conceived  by  the  Thomas  Fordyoe  Manufac- 
turing Company  or  John  R.  Fordyce,  and  as- 
signed by  Fordyce,  or  the  Fordyce  Manufactur- 
ing Company,  to  the  General  Cotton  Securities 
Company." 

Daniel  J.  Sully  answered  tbe  bill  on  be- 
half of  the  National  Cotton  Improvenaent 
Company  as  Its  first  rice  president,  in  which 
all  of  tbe  allegations  of  the  bill  were  admit- 
ted. The  Supreme  Court  held  that  Mr.  Sully 
"was  the  Instigator  of  the  suit,  that  be  was 
made  a  party  defendant  to  conceal  the  same, 
and  to  make  use  of  whatever  advantage  the 
act  afforded  the  plaintiff  by  his  position  as 
defendant,"  and  on  the  27th  of  November, 
1911,  entered  a  decree  dismissing  the  bill. 
The  plaintiffs  appealed  to  the  Court  of  Ap- 
peals of  the  District  of  Columbia,  and  ob- 


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EAMMOXD  ▼.  DU  BOIS 


619 


tained  a  reversal  of  the  decree  of  tbe  Su- 
preme Court.  In  disposing  of  the  case  on 
appeal,  Chief  Judge  Shepard  said : 

"The  court  below  wbs  right  in  holding  that  no 
juriadiction  had  been  acquired  of  the  National 
Cotton  Improvement  Company  by  the  service  of 
the  process  in  this  case.  *  •  *  The  answer 
for  said  corporation,  purporting  to  have  been 
filed  by  Daniel  J.  Sully  as  vice  president,  did 
not  have  the  effect  to  bring  the  corporation  be- 
fore the  court.  The  corporation  had  a  presi- 
dent, as  well  as  a  vice  president;  and,  without 
pausing  to  consider  whether  Sully  was  actually 
Its  vice  president  at  the  time,  it  does  not  ap- 
pear that  he  had  any  authority  as  such  officer 
to  enter  its  appearance,  or  answer  for  it  in  this 
suit  Ambler  v.  Archer,  1  App.  D.  C.  Mr-106. 
It  does  not  seem  that  it  was  to  its  interest  to 
appear  voluntarily.  On  the  contrary,  its  an- 
swer would  seem  to  have  been  filed  by  Sully  in 
the  interest  of  tbe  plaintiffs.  Tbe  entire  rec- 
otH  of  the  case  furnishes  an  example  of  corpo- 
rate formation,  stock  watering,  and  manipula- 
tion that  is  made  possible  by  tbe  character  of 
the  corporation  laws  in  force  in  many  of  the 
states,  as  wdl  as  by  the  absence  of  restraining 
legislation  in  the  Ihstrict  of  C<^umbia.  Assum- 
ing, what  may  reasonably  be  inferred  from  the 
drcnmstances  in  evidence,  that  Sully  stimulated 
this  litigation,  desiring  thereby  to  accomplish 
some  purposes  of  his  own,  it  does  not  follow  that 
plaintiffs  shall  lose  any  subetantial  rights  they 
may  be  entitled  to  under  the  allegations  of  their 
bill.  It  remains  to  be  inquired  what  these  are, 
if  any,  and  if  they  may  be  adjudicated  in  the 

S resent  proceeding  with  tbe  parties  properly 
efore  tbe  court.  So  far  as  inquiry  into  the 
corporate  proceedings  of  the  General  Cotton  Se- 
cnntiea  Company,  looking  to  tbe  correction  of 
its  minutes,  and  the  legality  of  its  election  of 
directors  and  other  officers,  is  involved,  that 
corporation  is  a  necessary  party.  But,  being 
a  foreign  corporation,  if  it  were  a  party,  the 
courts  of  this  jurisdiction  would  have  no  power 
to  control  its  internal  affairs  and  the  adminis- 
tration of  its  corporate  functions.  Clark  v. 
Mutual  Reserve  Fund  Life  Ass'n,  14  App.  D. 
C  154-175,  43  L.  K.  A.  390;  Barley  v.  Git- 
tings,  15  App.  D.  C.  427-^43.  It  does  not  ap- 
pear that  the  administration  of  the  internal  cor- 
porate affairs  of  the  National  Cotton  Improve- 
ment Company  is  necessarily  involved,  nor 
would  It  be  a  necessary  party  to  a  mere  deter- 
mination of  the  right  to  the  ownership  of  its 
capital  stock  as  between  rival  claimants  thereof, 
if  such  were  the  object  of  this  suit.  •  •  • 
Whatever  'rights  the  plaintiffs  may  have  are  nar- 
roiwed  to  the  ownership  of  the  shares  of  the 
General  Cotton  Securities  Company  held  in 
tmst  by  the  United  States  Trust  Company,  as 
against  John  P.  Miller.  Said  Miller  is  a  neces- 
sary party  to  this  determination;  and  whether 
aa  against  him  the  plaintiffs  are  entitled  to  a 
decree  determining  the  question  of  ownership 
is  a  question  that  cannot  be  considered  because 
Miller  is  not  before  the  court  It  was  error  to 
dismiss  the  bill  because  of  the  belief  that  Sully 
bad  instigated  it  against  the  other  defendants. 
Tlie  decree  will  therefore  be  reversed,  and  the 
cause  remanded,  whereupon  the  plaintiffs  may 
bave  it  retained  for  a  reasonable  time  for  an 
opportnnity  to  obtain  service  of  process  upon 
Joiin  P.  Miller,  and  to  amend  their  bill,  if  so 
advised." 

After  tbe  case  was  remanded  to  the  Su- 
preme Court,  Mr.  Justice  Anderson,  In  dis- 
posing of  it,  said : 

"This  is  a  suit  by  Willard  D.  Doremns  and 
Addison  G.  Dn  Bois.  seeking  certain  injunctive 
relief  against  John  P.  Miller,  and  further  seek- 
ing to  have  delivered  to  the  plaintiffs  by  the 
other  defcndnnts  certain  certificates  for  shares 
of  common  stock  and  preferred  stock  in  the 
General  Cotton  Securities  C<»apany,  which  cer- 


tificates are  located  within  this  district  and  are 
claimed  to  belong  to  the  plaintiffs.  The  case 
came  on  for  final  hearing  before  Mr.  Justice 
Wright,  and  a  decree  was  entered  dismissing 
the  bill.  An  appeal  was  prosecuted  from  such 
decree,  and  the  Court  of  Appeals  reversed  the 
same,  remanding  the  case  for  further  proceed- 
ings upon  tbe  sole  question  of  the  ownersbip 
of  said  certificates  of  stock  as  against  John  P. 
Miller.  The  Court  of  Appeals  said:  'Whatever 
rights  the  plaintiffs  may  have  are  narrowed  to 
the  ownership  of  tbe  shares  of  the  General  Cot- 
ton Securities  Company  held  in  trust  by  tbe 
United  States  Trust  Company,  as  against  John 
P.  Miller.  Said  Miller  is  a  necessary  party  to 
this  determination,  and  whether  as  against  him 
the  plaintiffs  are  entitled  to  a  decree  determin- 
ing uie  question  of  ownership  is  a  question  that 
cannot  he  considered  because  Miller  is  not  be- 
fore the  court.'  41  W.  U  R.  8.  The  Court 
of  Appeals  further  said,  in  overruling  the  mo- 
tion for  rehearing:  'Whatever  may  be  the  con- 
cession regarding  the  ownership  of  this  stock 
by  the  other  defendants,  who  moreover  have  no 
interest  therein,  there  is  and  could  be  no  conces- 
sion by  Miller  who  was  never  a  party  to  this 
case.'  At  that  time  Miller  had  not  been  brought 
into  the  case,  either  by  personal  service  or  pub- 
lication. Since  the  case  was  remanded,  service 
by  publication  has  been  obtained  against  Miller, 
and  a  decree  pro  confesso  entered,  and  subse- 
quently made  absolute,  against  him.  The  case 
is  now  submitted  to  the  court  for  the  entry  of 
a  final  decree  directing  the  delivery  of  the  cer- 
tificates claimed  by  the  plaintiffs.  In  this  situa- 
tion, the  Court  of  Appeals  having  held  that  tbe 
other  defendants  have  'no  interest  therein,'  and 
having  remanded  the  case  for  the  sole  purpose 
of  determining  the  ownershijp  of  said  shares  'as 
against  John  P.  Miller,'  this  court,  in  view  of 
Miller's  default  and  the  pro  confesso  against 
him,  must  necessarily  enter  a  decree  directing 
the  defendants  to  deliver  to  the  plaintiffs  the 
certificates  for  common  and  preferred  stock  in 
the  General  Cotton  Securities  Company  as 
claimed  by  them.  Whether  the  Generol  Cotton 
Securities  Company  will  recognize  them  when 
presented  for  transfer,  in  view  of  their  suppoih 
ed  cancellation,  is  a  question  with  which  this 
court  can  have  no  concern,  and  can  only  be  de- 
termined in  the  proper  forum  in  a  proceeding  in 
which  said  company  may  be  made  a  party.  A 
decree  will  accordinffly  be  entered,  directing  the 
defendants  to  deliver  to  the  plaintiffs  the  certifi- 
cates for  stock  in  tbe  General  Cotton  Securitiea 
Company  as  claimed." 

In  accordance  with  this  opinion  the  Su- 
preme Court  on  the  2d  day  of  June,  1913, 
passed  the  following  decree: 

"This  cause  came  on  for  final  hearing  thia 
term  and  was  duly  argued  by  counsel,  and  it  ap- 
pearing to  the  court  that  tbe  complainants  are 
entitled  to  the  relief  sought  by  the  bill  of  com- 
plaint filed  in  this  cause,  and  thereupon,  and 
upon  consideration  thereof,  it  is  this  2d  day  of 
June,  1918,  adjudged,  ordered,  and  decreed  that 
the  defendants  Daniel  J.  SuUy  and  Frank  S. 
Bright  be  and  tbey  hereby  are  Jointly  and  sev- 
erally commanded  to  deliver  to  the  complainant 
William  D.  Doremus,  or  to  his  attorney,  trust 
certificates  Nos.  4,  5,  6,  7,  8,  9,  and  10,  repre- 
senting respectively  shares  of  common  stock  of 
the  General  Cotton  Securities  Company,  and  to 
Addison  G.  Du  Bois  trust  certificates  Nos.  12, 
l.S,  16,  snd  17,  representing  respectively  shares 
of  the  common  stock  of  the  General  Cotton  Se- 
curities Company,  such  delivery  to  be  made  by 
said  defendants  to  said  complainants,  or  to  their 
attorneys  of  record,  within  10  days  from  the  date 
of  the  execution  of  this  decree.  And  it  is  hereby 
further  adjudged,  ordered,  and  decreed  that  the 
defendants  John  Hays  Hammond.  Daniel  .T.  Sul- 
ly, and  Frank  S.  Bright  be  and  they  hereby  are 
commanded  to  deliver  to  the  complainants  re- 


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spectively,  or  to  their  attorneys  of  record,  the 
number  or  shares  of  common  stock  of  the  Gen- 
eral Cotton  Securities  Company  held  by  them  as 
voting  trustees,  as  are  represented  by  trust  cer- 
tificates Nob.  4,  5,  6,  7,  8,  9,  and  10,  and  trust 
certificates  Nos.  12,  13,  16,  and  17,  or,  if  all  of 
the  common  stock  in  said  defendants'  hands  are 
embraced  in  one  certificate,  then  and  in  that 
event  said  defendants,  and  each  of  them,  are 
hereby  commanded  to  execute  a  proper  assigni- 
ment  to  each  of  the  plaintifts  for  the  number  of 
shares  of  common  stock  of  said  General  Cotton 
Securities  Company  as  are  represented  by  the 
trust  certificates  aforesaid,  and  attach  to  said 
assignment  the  certificates  of  stock  held  by 
them,  and  a  certified  copy  of  this  decree,  and 
deliver  the  said  assignment  and  decree  to  the  at- 
torneys of  record  for  the  complainants,  with  a 
letter  addressed  to  the  General  Cotton  Securi- 
ties Company,  duly  signed  by  said  defendants, 
authorizing  and  directing  said  company  to  trans- 
fer on  its  books  the  number  of  shares  represent- 
ed by  the  assignment  and  shown  hj  this  decree 
that  the  complainants  are  respectively  entitled 
to,  and  to  issue  and  deliver  to  said  comnlain- 
ants,  or  their  assigns,  new  stock  certificates 
therefor,  said  delivery  to  be  made  within  10  days 
after  the  presentation  to  said  defendants,  or  to 
their  attorneys  of  record  in  this  cause,  by  the 
complainants,  respectively,  of  the  trust  certifi- 
cates herein  mentioned.  It  is  hereby  further 
adjudged,  ordered,  and  decreed  that  the  defend- 
ant the  United  States  Trust  Company  deliver  to 
the  said  complainant  Willard  D.  Doremus  five 
thousand  (5,000)  shares,  and  to  the  said  com- 
plainant Addison  G.  Du  Boia  twenty-five  hun- 
dred (2,500)  shares  of  the  preferfjed  stock  of  the 
General  Cotton  Securities  Company  heretofore 
placed  in  its  possession  as  trustee  by  the  defend- 
ant Daniel  .1.  Sully,  or,  should  the  shares  of  pre- 
ferred stock  of  the  General  Cotton  Securities 
Company  held  by  it  be  embraced  in  a  certificate 
or  certificates  of  such  denominations  that  it  is 
impracticable  to  perform  this  command,  then 
and  in  that  event  said  defendant  be  and  it  is 
hereby  commanded  to  execute  a  proper  assign- 
ment to  the  complainants,  respectively,  for  the 
number  of  shares  of  said  stock  as  they  by  this 
decree  are  respectively  entitled  to,  and  said  de- 
fendant is  hereby  further  commanded  to  attach 
thereto  such  certificates  of  said  preferred  stock 
as  may  be  necessary,  and  to  accompany  same  by 
a  letter  addressed  to  the  General  Cotton  Securi- 
ties (Company,  such  letter  to  be  signed  by  its 
proper  officers,  with  the  request,  authorization, 
and  direction  that  said  General  Cotton  Securi- 
ties Company  transfer  on  its  books  five  thou- 
sand (5,()00)  shares  of  said  preferred  stock  to 
Willard  D.  Doremus  and  twenty-five  hundred 
(2,500)  shares  to  Addison  G,  Du  Bois,  or  their 
assigns,  and  to  issue  to  and  deliver  to  them,  or 
their  assipiS,  new  certificates  therefor,  and  re- 
turn to  It  (the  defendant  the  United  States 
Trust  Company)  a  certificate  for  the  shares  re- 
maining after  making  such  transfer.  And  said 
defendant  is  hereby  directed  to  deliver  such  as- 
signment or  assignments,  together  with  the  nec- 
essary certificates  of  stock  and  the  letter  herein 
provided  for,  to  the  complainants'  attorneys  of 
record,  such  delivery  to  be  made  within  10  days 
from  the  date  of  the  execution  of  this  decree, 
nie  costs  in  this  court  will  bo  taxed,  one-halt 
Hgainst  the  plaintiffs,  and  one-hnlt  against  de- 
fendants Hammond,  Sully,  and  Bright." 

On  the  16th  of  June,  15)13,  Mr.  Gittlngs, 
counsel  for  Mr.  Du  Bols  and  Mr.  Doremus, 
dellvorod  to  .Tohn  I*  Lordan,  a  member  of 
the  bar  of  New  York  City,  a  certificate  la- 
sued  by  Ralph  Polk  Buell,  president  of  the 
(Jeneral  Cotton  Securities  Company,  to  John 
Hays  Hammond,  Daniel  J.  Sully,  and  P.  S. 
Bright,  TOtlng  trustees,  for  28,965  shares  of 


the  common  capital  stock  of  said  ompany, 
and  the  following  letter: 

"Washington,  D.  O.,  June  4,  1913. 
"Transfer  Officers,  General  Cotton  Securities 
Company,  a  Delaware  Corporation :  Under  aod 
by  virtue  of  a  decree  passed  on  the  2d  day  of 
June,  1913,  by  the  Supreme  0>urt  of  the  Dis- 
trict of  Columbia,  in  cause  Equity  No.  30,002, 
entitled  Willard  D.  Doremus  and  Addison  G.  Du 
Bois  against  National  Cotton  Improvement 
Company  and  others,  a  certified  copy  of  which 
decree  is  hereunto  attached,  we,  the  under- 
signed, as  voting  trustees,  out  of  the  29,965 
shares  of  the  common  stock  represented  by  cer- 
tificate No.  14,  General  Cotton  Securities  Com- 
pany, in  the  name  of  John  Hays  Hammond, 
Daniel  J.  Sully,  and  F.  S.  Bright,  voting  trustees, 
which  certificate  is  hereunto  attached,  assign  and 
transfer  unto  Willard  D.  Doremus,  or  his  as- 
signs, four  thousand  five  hundred  and  fifty  (4,- 
650)  shares,  and  unto  Addison  G.  Du  Bois,  or 
his  assigns,  two  thousand  two  hundred  and  sev- 
enty-five (2,275)  shares,  and  we  do  hereby  irrev- 
ocably constitute  and  appoint  attor- 
ney, to  transfer  the  said  stock  on  the  books  of 
the  said  company,  with  full  power  of  substitn- 
tion  in  the  premises;  and  we  do  hereby  author- 
ize and  direct  the  said  General  Cotton  Securities 
Company  to  transfer  the  aforesaid  shares  on  the 
books  of  the  company  to  the  persons  above  nam- 
ed, and  to  issue  and  deliver  to  them,  or  their  as- 
signs, new  stock  certificates  therefor. 

"John  Hays  Hammond, 

"Prank  S.  Bright, 

"D.  J.  SuUy,  Voting  Trustees." 

He  also  delivered  to  Mr.  Lordan  a  copy  of 
the  decree  of  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  a  certificate  Issued  by 
John  Hays  Hammond,  president  of  the  Gen- 
eral Cotton  Securities  Company,  March  4, 
1910,  to  Daniel  J.  Sully,  syndicate  manager, 
for  10,000  shares  of  the  preferred  stock  of 
the  said  company,  and  the  following  letter 
from  the  secretary  of  the  United  States  Trust 
Company  of  Washington: 

"United  States  Trust  Company. 

"W^ashington,  D.  C,  June  13,  1913. 

"General  Cotton  Securities  Company,  71 
Broad  Street,  New  York  City — Gentlemen :  Pur- 
suant to  the  terms  of  a  decree  of  the  Supreme 
Court  of  the  District  of  Columbia,  passed  on 
June  2,  1913,  in  the  case  of  Willard  D.  Doremus 
et  al.  V.  John  Hays  Hammond  and  others,  Equi- 
ty 30002,  we  are  inclosing  you  herewith  certifi- 
cate A-7  for  10,000  shares  of  the  preferred  cap- 
ital stock  of  the  General  Cotton  Securities 
Company,  with  a  request,  authorization,  and  di- 
rection, as  provided  in  said  decree,  that  you  trans- 
fer on  your  books  5,(X)0  shares  of  the  said  pre- 
ferred stock  called  for  by  said  certificate  to  Wil- 
lard D.  Doremus,  and  '2,500  shares  to  Addison 
G.  Du  Bois,  or  their  assigns,  and  to  issue  and 
deliver  to  them,  or  their  assigns,  new  certificates 
therefor,  and  return  to  this  company^  a  new  cer- 
tificate for  2,500  shares,  to  be  issued  in  the  name 
of  Daniel  J.  Sully,  syndicate  manager.  We  are 
advised  by  the  attorneys  in  the  case  that  Mr. 
Sully,  in  whose  name  this  certifirate  is  made, 
will  indorse  inclosed  certificate,  so  as  to  enable 
you  to  make  the  transfer  hereinbefore  requested. 

"Very  truly  yours,    J.  H.  Borden,  Secretary." 

Mr.  Lordan  took  the  certificates,  letters, 
and  copy  of  the  decree  to  Mr.  Campbell,  secre- 
tary of  the  General  Cotton  Securities  Com- 
IMny,  who  was  In  the  ofllce  of  Mr.  John  Hays 
Hammond,  and  asked  him  to  transfer  the 
stock  in  accordance  with  the  letters  annexed 
to  the  certificates.    Mr.  Campbell  told  him 


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HAMMOND  V.  DU  BOIS 


621 


that  the  books  of  the  company  were  not  In  the 
office,  but  had  been  sent  to  the  resident  agent 
In  Wilmington,  Dei,  and  that  he  could  not, 
therefore,  make  the  transfer,  and  declined  to 
take  the  certificates.  Mr.  Lordan  then  went 
to  see  Mr.  Atherton,  treasurer  of  the  Gen- 
eral Cotton  Securities  Company,  on  the  17th 
of  June,  and  presented  the  certlHcates,  let- 
ters, and  copy  of  the  decree,  and  requested 
him  to  make  the  transfer  of  the  stock.  Mr. 
Atberton,  according  to  Mr.  Lordan's  testi- 
mony, told  him  that  he  had  no  authority  to 
do  so,  that  the  books  were  in  the  office  of 
Mr.  Baldwin,  the  attorney  for  the  company, 
and  that  be  would  not  make  the  transfer, 
unless  he  received  instructions  to  that  effect 
from  the  attorney.  Mr.  Atherton  testified 
that,  when  Mr.  Lordan  presented  the  certlH- 
cates of  stock,  etc.,  some  time  In  July,  he 
told  Mr.  Lordan  that  he  could  not  transfer 
the  stock ;  that,  In  the  first  place,  he  did  not 
have  the  stockbooks  in  his  possession,  and 
did  not  know  where  they  were,  and,  in  the 
second  place,  the  certificates  would  neces- 
sarily have  to  be  signed  by  Mr.  Hammond, 
and  that  Mr.  Hammond  was  out  of  the  city, 
and  In  the  third  place,  that  he  would  not 
transfer  the  stock  without  the  advice  of 
counsel.    He  further  testified  as  follows: 

"Have  yoD  had  any  experience  in  corporati<»i 
affairs?  A.  Yes,  sir.  Q.  And  you  say  you  told 
him  that  you  would  not  transfer  the  stock,  even 
if  the  certificates  were  signed  by  the  president, 
widiont  the  advice  of  counsel?  A.  Yes,  sir.  Q. 
What,  if  anything,  did  Mr.  Hammond  do  or  say 
to  you  along  about  that  time  to  prevent  or  influ- 
ence your  action  in  the  transferring  or  nontrans- 
f erring  of  that  stock?  A.  Nothing  whatever.  I 
had  not  seen  Mr.  Hammond." 

After  bis  interview  with  Mr.  Atberton,  Mr. 
Ijordan  received  the  following  letter  from 
Mr.  Baldwin,  dated  July  31,  1913: 

"John  J.  Lordan,  Egq.,  115  Broadway,  New 
ToA  City — Dear  Sir:  I  have  been  unable  so  far 
to  get  any  instructions  as  to  the  transfer  of  the 
certificates  of  the  General  Cotton  Seeuritien 
Company,  but  have  advised  the  company  that, 
in  my  opinion  the  stock  having  been  lawfully 
canceled,  the  certificates  therefor  are  void.  Re- 
gretting tlie  delay,  which  I  trust  has  not  incon- 
venienced you,  in  replying  to  your  correspondent, 
I  remain, 

"Very  truly  yours, 

"Wm.  Woodward  Baldwin." 

Mr.  Hammond  stated  in  his  testimony  that 
the  certificate  had  never  been  presented  to 
him  and  that  he  had  not  been  requested  to 
transfer  the  stock.  At  the  time  of  the  de- 
mand made  upon  Mr.  Oampbell  and  Mr. 
Atherton,  he  was  at  his  home  in  Gloucester, 
Mass.,  and  he  did  not  hear  anything  of  It 
until  some  time  thereafter,  when  he  heard 
of  it  through  Mr.  Baldwin-,  tliat  he  merer 
gave  Mr.  Baldwin  any  instractions  In  refer- 
ence to  the  matter,  and,  when  he  heard  of 
Mr.  LoTdan's  request  throagh  Mr.  Baldwin, 
he  said  to  Mr.  Baldwin,  "Well,  now,  Bald- 
win, this  is  a  legal  question,  and  it  is  up  to 
you  as  attorney  of  the  cwupany."  When  he 
was  asked  what  he  meant  by  saying  that  it 
was  a  legal  question,  he  said  that  on  No- 
vember 23, 191Q,  the  stock  had  been  called  in 


and  canceled  at  the  meeting  of  the  board  of 
directors  of  that  date;  that  he  knew,  as  a 
business  man  that  It  would  be  dishonest  for 
him  to  sign  certificates  of  fully  paid  up 
stock  when  the  conslderatlcm  for  that  stock 
bad  been  returned  to  Mr.  Miller,  and  when 
the  stock  represented  no  assets.  "In  other 
words, .  I  would  be  committing  fraud,  and 
certainly  should  not  have  done  it,  unless  I 
had  the  very  best  legal  advice,  or  possibly 
even  an  order  of  the  court,  to  protect  my- 
self." It  further  appears  that  there  had 
never  been  any  meeting  of  the  directors  of 
the  General  Cotton  Securities  Company  after 
the  meeting  of  Novemiber  23,  1910.  At  that 
time  aU  of  the  stock  of  the  National  Cotton 
Improvement '  Company,  which  represented 
the  patent  rights  to  the  Doremus  invention  of 
the  cotton  gin  and  improvonents  thereon, 
and  which  represented  the  only  assets  of  the 
General  Cotton  Securities  Company,  was 
turned  over  to  Mr.  Miller,  and  the  stock  of 
the  latter  company  had  been  declared  cancel- 
ed by  the  board  of  directors.  Mr.  Ham- 
mond, in  1913,  had  no  Interest  In  the  Na- 
tional Ootton  Improvement  Company,  and 
had  upon  his  return  from  Russia  In  the  early 
part  of  1911  resigned  as  the  president  of 
that  company. 

On  the  21st  of  May,  1916,  Addison  G.  Da 
Bois  brought  this  suit  in  the  superior  court 
of  Baltimore  City  against  John  Hays  Ham- 
mond.   The  declaration  alleges: 

That  the  plaintiff  was,  on  the  23d  day  of 
November,  1910,  lawfully  in  possession  of  a 
certain  certificate  or  certificates  representing 
2,500  shares  of  the  preferred  stock  of  the  Gen- 
eral Cotton  Securities  Company  and  2,275  shares 
of  the  common  stock  of  said  company.  That  be 
on  said  day  lost  said  stock,  and  that  the  same 
came  into  possession  of  the  defendant  by  finding. 
"Yet,  defendant,  well  knowing  the  said  certifi- 
cates to  be  the  property  of  the  said  plaintiff  and 
rightfully  to  belong  and  appertain  to  him,  but 
contriving  and  fraudulently  intending  craftily 
and  subtly  to  deceive  and  defraud  the  plaintiff 
in  this  behalf,  has  not  as  yet  delivered  said  cer- 
tificates to  the  plaintiff,  although  often  so  re- 
quested to  do,  and  has  hitherto  wholly  refused 
so  to  do;  and  afterwards,  to  wit,  on  or  about  tiie 
23d  day  of  June,  1913,  at  the  place  aforesaid, 
converted  and  disposed  of  said  certificates  of 
stock  to  his  own  use.  Wherefore  the  plaintiff 
says  he  is  injured  and  has  sustained  damages 
to  the  amount  of  $477,500.  Wherefore  the 
plaintiff  brinrs  this  snit  and  claims  damaftes  in 
the  sum  of  .?477.500,  exclusive  of  all  interest  and 
costs  of  this  suit." 

The  second  count  of  the  declaration,  which 
was  filed  on  the  21st  of  November,  1916,  Is 
substantially  the  same  as  the  first.  The  de- 
fendant pleaded  that  he  did  not  commit  the 
wrong  alleged,  and  also  filed  a  special  plea, 
to  which  reference  need  not  here  be  made. 
To  the  second  count  the  defendant  pleaded 
the  general  issue  plea,  the  plea  of  limita- 
tions, and  a  further  plea  to  which  it  is 
imnecessary  to  refer.  The  trial  of  the  case 
in  the  superior  court,  which  apparently  ex- 
tended over  a  period  of  several  weeks,  and 
the  record  of  which  contains  between  1,500 
and  1,600  printed  pages,  resulted  In  a  ver- 
dict   for    the   plaintiff   for   |238,760,    which 


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(Ud. 


was  reduced  by  the  court  to  $123,775,  for 
whicli  amount  tbe  Judgment  from  which  this 
appeal  Is  taken  was  entered  in  favor  of  the 
plaintiff. 

The  record  contains  IB  exceptions,  the 
last  one  of  which  relates  to  the  ruling  of 
the  court  on  the  prayers.  The  court  below 
granted  the  plaintiff's  second  prayer,  as  fol- 
lows: 

"The  jury  are  instructed  aa  a  matter  of  law 
that  the  plaintilTa  title  to  the  stock  mmtioned 
in  the  declaration  ia  settled  by  the  decree  of  the 
Supreme  Court  of  the  District  of  Columbia  in 
Equity  cause  30002,  and  when  the  plaintiS  pre- 
sented the  decree  of  said  court,  defendant's  let- 
ter, and  said  crtodc  to  the  proper  officers  of  the 
corporation  for  transfer  (if  the  jury  so  find), 
then  he  had  the  right  to  have  it  transferred  on 
the  cort>oratlon  books  to  his  name,  and  certifi- 
cates for  his  shares  iasued  to  him,  and  if  the 
jury  find,  from  the  whole  evidence^  the  defendant 
personaliy,  or  by  his  agents  or  attorney,  pre- 
vented that  being  done,  defendant  was  guil^ 
of  a  conversion  of  said  stock,  and  their  verdict 
should  be  for  plaintiff." 

The  court  rejected  the  prayers  of  the  de- 
fmdant,  asserting  that  the  plaintiff  had  of- 
fered no  legally  sufficient  evidence,  under 
the  pleadings  of  any  conversion  by  the 
defendant  of  the  certlflcates  of  stock  or 
shares  of  stock  of  the  General  Cotton  Se- 
curities Company  mentioned  in  the  declara- 
tion, and  that  the  verdict  of  the  jury  should 
therefore  be  for  the  defendant. 

[1-4]  The  primary  and  important  Question 
to  be  determined  Is,  therefore,  whether  the 
record  contains  any  legally  sufflcient  evi- 
dence of  a  conversion  by  the  defendant  of 
the  sto<^  mentioned  In  the  declaration.  In 
considering  this  question  it  Is  necessary  to 
keep  in  view  the  precise  nature  of  the  in- 
quiry. In  the  case  of  Dletus  v.  Fuss,  8  Md. 
148,  the  court  used  this  language: 

"Before  expressing  an  opinion  in  reference 
to  the  plaintiff's  third  prayer,  it  is  proper  to  no- 
tice some  of  the  principles  relating  to  the  sub- 
ject of  conversion,  for  the  action  of  tro%-er  can- 
not be  maintained  without  a  conversion.  It 
may  be  either  direct  or  constructive,  and  tJiere- 
fore  may  be  proved  directly  or  by  inference. 
When  the  iplaintiff  fails  in  proving  an  actual 
conversion,  it  will  be  necessary  for  him  to  give 
evidence  of  a  demand  and  refusal  having  been 
made  at  a  time  when  the  defendant  had  the 
power  to  give  up  the  goods.  A  demand  and  ro- 
lusnl  are  only  evidence  of  a  prior  oonversicm, 
which  may  be  explained  and  rebutted  bgr  evidence 
to  the  contrary.  2  Greenl.  Ev.  {(  642,  644; 
Edwards  v.  Hooper,  11  Mees.  ft  Wels.  363." 

[I]  In  the  case  of  Manning  r.  Brown,  47 
Md.  606,  Judge  Alvey  said: 

"There  is  nothing  in  the  facta  stated,  and 
which  have  been  found  by  the  jury,  that  would, 
in  the  least,  justify  a  pretension  that  there  had 
been  any  such  conversion  of  the  personal  effects 
of  the  plaintiff  as  would  entitle  him  to  recover 
under  tiie  first  count  of  bis  declaration.  Ther« 
was  no  evidence  whatever  of  any  intention  on 
the  part  of  the  defendants  either  to  take  to 
themselves  the  property  in  the  goods,  or  in  any 
manner  to  deprive  the  plaintiff  of  them.  To 
entitle  him  to  recover  on  the  count  in  trover, 
such  proof  would  have  been  required.  EHetus  v. 
Fuse,  S  Md.  148;  Simmons  v.  Lillystone,  8 
Kich.  431,  442 ;  Bnrroughes  v.  Bayne,  5  H.  ft 
N.  2«6;   Pillot  v.  Wilkinson,  2  H.  ft  Colt  72." 


In  the  case  of  Balto.  Marine  Ins.  Co,  v. 
Dalrymple,  25  Md.  269,  the  court  said: 

"In  the  case  last  cited  [Eidwards  v.  Hooper,  11 
M.  ft  W.  302]  the  plaintiff's  assignee  ia  bank- 
ruptcy relied  on  a  demand  and  refusal  as  tlie 
ground  of  their  action,  the  conversion  harin; 
taken  place  before  the  fiat  in  bankruptcy,  it 
was  held  the  suit  could  not  be  maintained. 
Parke,  Baron,  said:  'If  the  goods  were  in  pos- 
session of  the  defendants,  a  demand  and  refusal 
would  be  evidence  of  a  conversion.  But  it  ia 
not  so  in  a  case  where  the  goods  hare  been 
previously  parted  with  by  sale.  There  cannot 
be  an  effectual  demand  and  refusal  unless  the 
party  has  at  the  time  possession  of  the  gooda 
and  has  the  means  of  delivering  them  up.'  In  2 
Greenl.  Ev.  i  644,  the  effect  of  a  demand  and 
refusal  is  correctly  stated,  and  many  caaoi 
cited.  In  Dietus  v.  Fuss,  8  Md.  158,  the  case  in 
11  M.  ft  W.  362,  and  the  sections  of  Oreenleaf 
on  this  subject  were  cited  and  approved.  It 
follows  from  these  authorities  that  the  demand 
and  refusal  in  this  case  could  have  no  effect  ei- 
titer  is  giving  to  the  plaintiff  a  right  of  action, 
or  to  fix  the  measure  of  damages." 

In  a  more  recent  case  of  Mercdiants'  Bank 
r.  Williams,  110  Md.  334,  72  Aa  1114,  Judge 
Burke,  speaking  for  this  coort,  said: 

"Conversion,  in  the  sense  of  the  law  ot  trover, 
consists  either  in  the  appropriation  of  the  prop- 
erty of  another,  or  in  its  destruction,  or  in  ex- 
ercising dominion  over  it  in  defiance  of  die 
owner's  rights,  or  in  withholding  the  possession 
from  him  under  an  adverse  claim  of  title,  and  all 
who  aid,  command,  assist,  or  participate  in  tbe 
commission  of  such  unlawful  acts  are  liable.  In 
this  case  the  bank,  accepting  for  its  own  benoSt, 
the  stock  from  Wilson  Colston  ft  Co.,  with  notice 
of  their  want  of  authority  to  hypothecate,  be- 
came by  that  act  jointly  liable  with  that  firm  for 
the  conversion  of  the  plaintiff's  goods,  which  took 
place  on  the  17th  of  September,  1907." 

In  the  case  of  Smith  r.  Young,  1  Camp, 
439,  Lord  EUeniboroagh  said: 

"The  defendant  would  have  been  guilty  of  a 
conversion  if  it  had  been  in  his  power;  but  the 
intention  is  not  enough.  There  must  be  an 
actual  tort.  To  make  a  demand  and  refusal  suf- 
ficient evidence  of  a  conversion,  the  party,  when 
he  refuses,  must  have  it  in  his  power  to  doUver 
up  or  to  detain  the  articles  demanded." 

[6]  Applying  these  principles  to  the  facts 
In  this  case,  it  is  apparent  that  there  is  not 
tlie  slightest  evidence  of  the  conversion  of 
the  stocks  in  question  by  Mr.  Hammond  on 
the  23d  day  of  June,  1913.  So  far  as  the 
evidence  discloses,  the  booka  of  the  General 
Cotton  Securities  Company  were  not  in  his 
possession  or  in  the  possession  of  Ills  agents. 
No  demand  was  made  upon  him  to  transfer 
the  btock,  and  according  to  the  uncontradict- 
ed evidaice  be  bad  no  knowledge  of  the  de- 
mand upon  Mr.  Atherton  and  Mr.  Campbell 
until  long  after  it  was  made,  and  be  had 
never  given  them  any  instructions  in  refer- 
ence tliereto.  There  ia  evidence  tmdlng  to 
show  that  Mr.  Campbell  was  ahao  employed 
by  Mr.  Hammond;  but  the  demand  made  up- 
on him  was  made  upon  him  as  tlie  secretary 
of  the  General  Ootton  Securities  Company, 
and  he  declined  to  make  the  transfer,  except 
under  advice  of  counsel  for  the  company. 
Mr.  Baldwin,  to  whom  Mr.  Hammond  bad 
given  no  instructions  in  reference  to  the  mat- 
ter, wrote  Mr.  Lordan  that  be  Iiad  been  un- 
able to  get  any  instructions  as  to  the  trans- 


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fer  of  the  8tock,"but  that  he  had  advl&ed  the 
rampany  that  In  his  opinion,  the  stock  hav- 
ing been  lawfully  canceled,  the  certificates 
therefor  were  void.  The  fact  that  Mr.  Gamp- 
bell  was  also  employed  by  Mr.  Hammond, 
and  that  Mr.  Baldwin  was  also  counsel  for 
Mr.  Hammond,  would  not  justify  an  infer- 
ence that  in  what  they  did  and  said  they 
acted  as  the  agents  of  Mr.  Hammond,  and  not 
as  the  secretary  and  counsel  of  the  company, 
when  the  eridence  is  to  the  effect  that  they 
were  not  approached  as  the  agents  of  Mr. 
Hammond,  and  that  Mr.  Hammond  had  no 
knowledge  of  the  alleged  demand,  and  gave 
no  instructions  to  either  of  tbem  in  reference 
to  the  transfer  of  the  stock. 

[7]  It  is  true  a  principal  may,  by  bis  sub- 
sequent ratification  or  acquiescence,  become 
liable  for  the  nnauthorized  nets  of  hlis  agents: 
bnt  this  principle  presupposes  that  the  act 
complained  of  was  the  act  of  one  as  the 
agent,  or  on  behalf  of  the  principal.  In  this 
case  there  Is  no  proof  to  warrant  the  view 
that.  In  what  Mr.  Baldwin,  Mr.  Campbell, 
and  Mr.  Atherton  did,  or  refused  to  do,  they 
acted  as  the  agents  of  Mr.  Hammond,  be- 
cause, as  we  have  said,  the  evidence  shows 
that  he  had  given  them  no  instructions  in 
reference  to  the  matter,  and  they  were  only 
called  upon  to  act  as  the  officers  of  the  com- 
pany. 

[•]  The  court  below,  in  granting  the  plaln- 
tlfTs  prayer,  proceeded  upon  the  theory,  and 
the  learned  counsel  for  the  appellee  contend 
in  this  court,  that  the  decree  of  the  Supreme 
Goart  of  the  District  of  Colombia  determined 
the  plaintiff's  right  to  a  transfer  of  the  stock 
on  the  books  of  the  General  Cotton  Securities 
Oompany.  But  it  is  obvious  that  the  decree 
could  not  have  that  effect,  and  that  the  learn- 
ed Judge  of  that  court  did  not  intend  so  to 
decree.  The  Qeneral  Cotton  Securities  Com- 
pany was  not  a  party  to  that  suit,  and  no 
decree  could  havie  been  passed  affecting  its 
Interests.  It  Is  not  necessary  in  this  case 
to  determine  wbetber  this  court  can  properly 
pass  upon  the  legality  of  the  proceedings  of 
the  board  of  directors  of  the  General  Cotton 
Securities  Company  on  the  28d  of  November, 
1910.  Tlie  only  question  here  involved  is 
whether  the  conduct  of  Mr.  Baldwin,  Mr. 
Oanipbell,  and  Mr.  Atherton  amounted  to  a 
conrerslon  of  the  stock  by  Mr.  Hammond.  If 
{be  demand  had  been  made  upon  Mr.  Ham- 
mond, as'  the  president  of  the  company,  to 
transfer  the  stock,  It  might  be  questioned 
whether.  In  view  of  the  resolution  of  the 
board  of  directors  of  the  company,  he  would 
have  been  authorized  to  make  the  transfer 
without  some  previous  action  of  or  authority 
from  the  board  of  directors. 

Among  other  cases  dted  and  relied  on  by 
the  appellee  is  the  case  of  Travis  v.  Knox 
Terpezone  Co..  215  N,  Y.  259,  109  N.  E.  250, 
L.   B.  A.  1916A,  542,  Ann.  Cas.  1917A,  387. 


It  may  be  noted,  however,  that  In  that  case 
that  the  defendants  Rogers  and  Skinner,  who 
were  the  president  and  treasurer  of  the  cor- 
poration. Joined  with  the  defendant  company 
in  a  formal  refusal  to  transfer  the  stock.  In 
this  case  there  was  no  demand  made  upon  Mr. 
Hammond,  and  no  refusal  on  bis  part  to 
make  the  transfer  desired. 

It  follows,  from  what  has  been  said,  that 
the  plaintiff  l>elow  failed  to  make  out  a  case 
of  a  conversion  of  the  stock  In  question  by 
Mr.  Hammond,  and  the  Judgment  of  the  court 
below  must  therefore  be  reversed,  without 
awarding  a  new  trial. 

Judgment  reversed,  with  costs,  without 
awarding  a  new  trial. 


(Ul  Md.  105) 
CROMWELL  T.  CHANCE  MARINE  CONST. 

CO.     (No.  30.) 
(Court  of  Appeals  of  Maryland.    Jane  27,  1917.) 

1.  Sales  «=s398  —  Rememes  or  Bdter  —  Rii- 

COVERT  OF  PUBCHASE  PRICE  —  QUESTION  FOB 
JUET. 

In  action  by  buyer  to  recover  the  purchase 
price  of  a  motor  boat  alleged  to  be  of  no  use  or 
value,  evidence  held  to  present  a  Jury  question. 

2.  Trial  ^=>143  —  Questions  fob  Jubt  — 
Weight  of  Evidence. 

The  comparative  weight  of  evidence  is  ex- 
clusively a  jury  question. 

3.  Tbial  «=»139(1)  —  Questions  fob  Jubt  — 
Weight  of  Evidence. 

Where  there  is  any  evidence  competent,  or 
of  sufficient  probative  force,  to  support  plaintiffs 
case,  the  weight  and  sufficiency  of  such  evidence 
should  be  left  to  the  jury. 

4.  Monet  Received  «=3l—A8suirFsiT— Right 
OF  Action. 

In  assumpsit  for  money  had  and  received, 
plaintiff  may  recover  from  defendant  any  money 
beloneing  to  him  obtained  from  him  through 
mistake,  fraud,  or  deceit;  and  such  action  lies 
to  recover  money  in  possesion  of  defendant 
which  in  justice, an4  good  conscience  bdongs  to 
plaintiff. 

5.  Monet  Received  «=»17(3)  —  Assxthpsit-— f 
Issues. 

In  assumpsit  to  recover  money  had  and  re- 
ceived,  the  defendant,  under  the  general  issue, 
may  rely  upon  any.  just  ground  of  defense  that 
tends  to  show  he  was  not  bound  to  pay  it. 

Appeal  from  Circuit  doart,  Anne  Anmdd 
Ck>naty;  Jas.  R.  Brashears,  Judga 

"To  be  officially  reported." 

Assumpsit  by  James  P.  Cromwell  against 
the  Chance  Marine  Construction  Company. 
Judgment  for  defendant,  and  plalntlfl  appeals. 
Reversed,  and  new  trial  granted. 

Argned  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
and  CONSTABLE,  JJ. 

Eugene  P.  Cbilds,  of  Annapolis,  tor  appel- 
lant. Robert  Moss,  of  Annapolis,  for  ap- 
pellee. 

BRISCOE,  J.  The  controversy  in  this  case 
is  over  the  sale  of  a  motorboat.  The  declara- 
tion is  in  assumpsit,  upon  the  usual  common 
counts.    The  defendant  pleaded  the  genera] 


«s9For  other  casta  sea  same  topio  and  KEY-NUMBER  In  all  Key-Nnmbcrad  Dlcaata  and  Indezaa 


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101  ATIiANTlO  REPORTBE 


(Hi. 


Issue  pleas,  and,  the  trial  In  the  conrt  below 
resulting  In  a  judgment  for  the  defendant, 
the  plaintiff  brings  this  appeal. 

At  the  trial  a  single  exception  was  taken, 
and  that  was  to  the  ruling  of  the  court,  at  the 
close  of  the  plaintiff's  testimony.  In  granting 
the  defendant's  prayer,  wlthdrawlrxg  the  case 
from  the  consideration  of  the  Jury,  and  di- 
recting a  verdict  for  the  defendant  The  sole 
question  presented,  on  the  appeal,  Is  whether 
the  court  below  committed  an  error  In  grant- 
ing the  .defendant's  prayer,  and  this  requires 
a  review  of  the  evidence  disclosed  by  the 
record.  The  record  Is  a  short  one,  and  there 
were  only  two  witnesses  examined  in  the 
case.  The  testimony  Is  somewhat  brief,  and 
the  plaintiff's  testimony  Is  the  only  material 
evidence  in  the  case. 

It  appears  that  the  plaintiff,  who  resides 
npon  the  Severn  river,  in  Anne  Amndel  coun- 
ty, some  time  In  the  year  1916,  purchased  of 
the  defendant  a  motorhoat  for  the  sum  of 
$375.  Prior  to  the  contract  of  sale.  It  was 
agreed  that  a  small  engine,  whldi  was  then 
In  the  ttoat,  should  be  removed,  and  what  was 
called  a  Hubbard  engine  was  to  be  Installed 
In  Its  i^ace.  It  further  appears  that  on  the 
25th  of  February,  1916,  the  plaintiff  paid  the 
sum  of  $210  on  account  of  the  boat  and  en- 
gine, but  with  the  understanding  that.  If  a 
Hubbard  engine  was  not  put  In  It,  he  did  not 
want  it  The  following  letter,  Introduced  as 
evidence  in  the  case,  shows  the  contract  and 
understanding  between  the  parties: 

The  Chance  Marine  Construction  Company, 
Designers  and  Builders  of  Boats. 

OflSce  and  Shipyard,  S«vem  Avenue,  Eaatport, 
Md. 

Annapolis,  Md.,  Feb.  23,  1916. 
Mr.  3.  H.  Cromwell,  Forrest  and  Front  St., 
Balto„  Md.— Dear  Herbert:  Confirming  tele- 
phwie  conversation  with  you  regarding  the 
CauRby  boat,  will  say  that  we  will  let  yon  have 
the  boat  at  $376  as  per  your  request.  As  you 
understand,  tiie  hall  does  not  belong  to  us.  We 
will  ask  yon  for  your  check  for  $210.  We  will 
then  take  the  engine  out  and  put  in  the  12  H.  P. 
Victor  motor  in  its  place.  The  balance  payable 
when  the  boat  is  delivered.  You  will  under- 
stand Uiat  we  conid  not  make  any  change  in  the 
boat  until  it  is  paid  for,  as  the  money  has  to  be 
turned  into  the  estate  of  the  owner. 

Tours  very  truly,  '  Caryl  H.  Bryan. 

On  the  25th  of  February,  1916,  the  plaintiff 
replied  to  the  foregoing  letter,  as  follows: 

Homestead  Park  Product  Company,  Forrest  and 
Front  Streets. 

Baltimore,  Feb.  25,  1016. 
Tbe  Chance  Marine  Construction  Co.,  Annapo- 
lis, Md. — Gentlemen:  I  am  inclosing  herewith 
my  check  for  $210  to  apply  on  account  of  the 
Seabury  boat  and  engine.  Your  attention  is 
called  to  the  fact  that  before  I  agreed  to  pur- 
chase this  outfit,  or  even  before  I  made  an  offer 
for  same  in  your  office  last  week,  your  Capt. 
Baker  represented  this  engine  to  be  one  manu- 
factured by  the  Hubbard  Motor  Company,  and 
it  was  on  the  strength  of  this  representation 
that  I  made  tbe  above  offer  and  finally  agreed  to 
purchase.  In  the  meantime  I  have  been  famil- 
iarizing myself  with  the  different  parts  of  the 
Hubbard  motor,  and  after  talking  with  your 


Mr.  Bryan  this  afternoon  I  ran  across  some  in- 
formation that  led  me  to  believe  that  it  was  pos- 
sible that  your  motor  was  not  a  Hubbard  ma- 
chine, but  one  manufactured  for  the  Fairbanks 
Company  by  another  concern,  and  with  which 
they  have  experienced  a  large  amount  of  trou- 
ble. I  have  jnst  finished  talking  with  your 
Capt  Baker  on  the  phone,  and  he  assured  me 
that  the  motor  is  a  Hubbard,  and  if  such  is  the 
case  all  is  well  and  good,  and  I  want  yon  to 
go  ahead  with  the  work  as  promptly  as  yon  can; 
but,  on  the  other  hand,  I  want  you  to  be  sure 
of  this  fact  before  you  do  go  to  work  on  it 
because,  if  it  is  not  a  Hubbard  engine,  I  don't 
want  it  as  I  do  not  care  to  experiment  with  any 
engine  that  you  or  I  don't  know  anything  about 

Yours  very  respectfully, 
0.  K.  X  H.  CromweU. 

The  plaintiff  also  testified  that  he  got  tbe 
boat  on  Thursday  and  returned  it  on  Satur- 
day of  the  same  week;  that  when  he  went 
after  the  boat  there  were  two  or  three  hours' 
work  on  tbe  engine  before  It  was  ready  to  t>o 
taken  away;  that  the  boat  leaked;  that  It 
broke  down  on  its  way  home  before  they  got 
to  the  railroad  bridge;  "we  had  to  anchor 
and  spend  an  hour,  and  then  came  beck  with 
one  cylinder,  and  they  repaired  It  and  wa 
started  out  again."  He  further  testified 
That  tbe  defendant  stated  that  It  was  a  Hul> 
bard  engine  which  had  been  put  In  and  In. 
stalled  In  the  boat,  when  It  was  turned  ovei 
to  him.  Upon  redirect  examination  he  was 
asked  the  following  question:  "Then  you  did 
not  find  out  It  was  not  a  Hubbard  motor  nn- 
til  after  you  took  the  boat  back?"  Answer: 
"Yes,  sir."  That  be  told  the  defendant  when 
he  carried  the  boat  back,  that  If  he  could 
prove  to  him  that  a  Hubbard  engine  had  been 
Installed  In  tbe  boat  he  would  take  It,  but 
this  was  not  done.  That  he  made  demand  for 
the  return  of  the  $210  before  bringing  the 
suit,  but  the  defendant  refused  to  answer  any 
correspondence,  or  to  return  tbe  money,  evea 
uiton  a  personal  appeaL 

[1-3]  From  this  outline  and  statement  of 
the  testimony,  and  it  embraces  all  of  the 
material  and  snbetantial  facts  disclosed  by 
the  record,  it  will  be  seen  that  the  question 
here  presented  Is  a  narrow  one,  and  that  is 
whether  the  court  below  committed  an  error 
In  withdrawing  the  case  from  the  jury  by 
the  Instruction  granted.  We  think  the  testi- 
mony, as  disclosed  by  the  record,  was  legally 
sufficient  to  take  the  case  to  the  Jury,  and 
the  court  committed  an  error  in  granting  tbe 
defendant's  prayer.  It  Is  well  settled  by  a 
long  line  of  decisions  of  this  court  that  the 
court  has  no  power  or  authority  to  decide  np- 
on the  comparative  weight  of  evidence,  but 
that  is  exclusively  tor  the  Jury.  If  there  is 
any  evidence  competent  or  of  a  suCBdent 
probative  force^  to  sustain  the  proposition 
sought  to  be  maintained,  or'  to  support  the 
plalntlfTs  case,  the  weight  and  value  of  this 
evidence  should  be  left  for  the  oonslderatioo 
of  the  Jury.  Baltimore  v.  Neal,  65  Md.  438,  5 
Atl.  338;  Jones  v.  Jones,  46  Md.  154;  Burke 
v.  M.  &  C.  of  Balto.,  127  Md.  660,  96  Atl.  693. 

[4,  s;  The  theory  of  the  plaintiff's  case  la 
that  he  purchased  from   the  defendant  a 


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WORTHIXaTON  V.  MPSITZ 


625 


motorboat.  In  which  there  should  have  been 
Installed  a  Hubbard  engine,  of  the  kind 
agreed  upon  between  the  parties,  and  that  he 
paid  the  sum  of  $210  on  account  of  the  pur- 
chase price,  and  that  through  the  fraud  of  the 
defendant  he  did  not  get  what  he  bargained 
for,  bat,  <m  the  contrary,  the  defendant  de- 
livered to  him  a  boat  and  engine  of  no  use 
and  value,  and  that  upon  this  discovery  he 
returned  it  to  the  defendant  and  demanded 
the  money  which  he  had  paid,  but  the  de- 
fendant refused  to  return  or  to  pay  it  bactc. 
The  law  Is  well  established  that  In  an  action 
of  assumpsit  for  money  had  and  received  the 
plalntlfC  can  recover  from  the  defendant  any 
money  belonging  to  the  plaintiff,  obtained 
from  blm  through  mistake,  fraud,  or  deceit 
It  lies  to  recover  money  in  the  possession  of 
the  defendant,  which  In  Justice  and  good  con- 
science belongs  to  the  plaintiff,  and  the  de- 
fendant, under  the  general  issue,  may  rely 
upon  any  just  ground  of  defense  that  may 
show  he  was  not  bound  to  pay  it.  Penn  v. 
Flack,  3  GUI  A  J.  370;  Blair  v.  Blair,  39  Md. 
556;  Mills  v.  Bailey,  88  Md.  320,  41  AtL  780; 
1  Poe's  Pleading,  117-124. 

In  this  case  we  are  not  prepared  to  hold 
that  there  was  no  evidence  legally  sufficient  to 
require  the  case  to  be  submitted  to  the  Jury, 
under  the  nndispnted  evidence  set  out  in  the 
record,  and,  for  the  reasons  stated,  the  Judg- 
ment must  be  reversed,  and  a  new  trial  will 
be  awarded. 

Judgment  reversed,  and  a  new  trial  award- 
ed; the  appellee  to  pay  the  costs. 

(in  Md.  XM) 

WORTHINGTON  v.  UPSITZ  et  al.    (No.  44.) 

(Court  of  Appeals  of  Maryland.    Jane  28, 1917.) 

1.  Etidbnce  ®s>473— Imfbessior  Eviderob— 
Admissibilitt. 

An  objection  was  properly  sustained  to  a 
question  relating  to  a  certain  conversation. 
What  was  the  impression  they  left  you  under? 
as  it  was  not  the  impression  of  the  witness,  but 
the  facts  and  circumstances  and  the  conduct  of 
the  parties,  which  were  material. 

2.  PSAnDS,  Stathtk  of  ®=>158(4)  —  Sales — 
Vekbal  Contbact  —  Acceptance  and  Rx- 
CBiPT— Evidence— ScynoimNCY. 

In  assumpsit  for  the  purchase  price  of  cider, 
under  a  verbal  contract  of  sale,  evidence  held 
insufficient  to  show  an  actual  acceptance  and 
receipt  of  the  cider  told,  as  requir^  by  Code 
Pub.  Civ.  Laws,  art  83,  i  25,  providing  that  a 
sale  of  goods  of  the  value  of  1^  or  upward 
will  not  be  enforceable  by  action  unless  the 
buyer  accepts  and  actually  receives'  the  goods 
sola. 

Appeal  from  Baltimore  Court  of  Clommqn 
Pleas;    Carroll  T.  Bond,  Judge. 

"To  be  officially  reported." 

Suit  by  Bruce  Worthington,  trading  as  In- 
terstate Fruit  Product  Company,  against  Har- 
ry Lipsitz  and  others,  trading  as  H.  Lipsitz 
&.  Sous.  Judgment  for  defendants  and  plain- 
tiff appeals.    Affirmed  with  costs. 

Argued  before  BOYD,  C  J.,  and  BRISCOE, 


BURKE,      THOMAS,      TTRNBR,      STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Lewis  W.  Lake,  of  Baltimore,  for  appellant, 
Louis  S.  Ashman,  of  Baltimore,  for  appellees. 

BRISCOE,  3.  This  suit  was'  brought,  in 
the  court  of  common  pleas  of  Baltimore  dty 
to  recover  for  a  carload  of  cider,  containing 
70  barrels,  valued  at  $476.84.  The  plaintiff 
Is  a  manufacturer  and  broker  of  dders,  vine- 
gars and  fruit  products,  trading  under  the 
name  of  the  Interstate  Fvuit  Product  Com- 
pany, with  business  offices  in  Baltimore  city. 
The  defendants  are  copartners  trading  as 
H.  Lipsitz  &  Co.,  and  engaged  in  business  in 
Baltimore  city.  The  suit  Is  in  assumpsit  on 
an  oral  contract  for  the  purchase  price  of 
the  dder,  and  the  dedaratlon  contains  the 
common  counts.  The  case  was  tried  upon  is- 
sues Joined  on  the  pleas  of  never  Indebted 
and  never  promised  as  alleged,  and  from  a 
Judgment  in  favor  of  the  defendants,  the 
plaintifT  has  appealed. 

In  the  course  of  the  trial,  the  plaintiff  re- 
served two  exceptions,  one  to  the  ruling  of 
the  court  upon  testimony,  and  the  second  to 
the  granting,  at  the  condusion  of  the  plain- 
tiffs evidence,  of  the  defendants'  prayers 
marked   "A,"  "B,"  and  "C." 

[1]  Ibere  was  dearly  no  error  in  the  rul- 
ing of  the  court  upon  the  first  exception. 
The  witness  Nowlln  testified  that  he  saw  the 
bill  of  lading,  at  the  plaintiffs  office  on  Tues- 
day the  19th  of  December,  1916,  and  that  he 
had  seen  the  defendants  on  a  number  of 
occasions,  that  nothing  was  said  to  Indicate 
that  they  desired  to  repudiate  the  sale,  and 
that  one  of  the  brothers  made  the  remark: 

"That  dder  is  a  long  time  getting  here.  The 
cider  season  will  be  over  by  the  time  it  gets 
here,  or  something  of  that  kind." 

He  was  then  asked: 

"'What  was  the  impression  they  left  you  un- 
der, if  any?" 

The  question  was  objected  to  by  the  de- 
fendants and  the  objection  was  sustained. 
The  question  was  not  a  proper  one,  and  the 
impression  of  the  witness  was  clearly  inad- 
missible. It  was  not  the  opinion  or  impres- 
sion of  the  witness,  but  the  facts  and  drcum- 
stances  and  the  conduct  of  the  parties,  that 
be  was  called  upon  to  give  in  evidence  and 
of  wbldi  he  was  competent  to  speak. 

[2]  The  prlndpal  and  second  question  pre- 
sented by  the  record  for  review  is  whether 
the  rulings  of  the  court  upon  the  defendants' 
prayers  were  correct,  and  that  Is  whether 
there  was  any  evidence  legally  sufficient,  un- 
der the  pleadings,  of  any  valid  contract  be- 
tween the  plaintifT  and  the  defendants'  for  the 
purchase  of  the  goods  alleged  to  have  been 
sold.  There  can  be  no  great  difficulty,  we 
think.  In  regard  to  the  well-settled  prlndples 
of  law  by  which  the  several  questions  pre- 
sented by  the  prayers  are  to  be  determined. 
The  controverted  question  In  the   case  l!» 


s>Por  other  e««es  ■«•  hub*  topic  and  KSY-NUUBEH  la  all  Key-Numbered  DIgeiti  and  ladeSM 
101  A.— 40 


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101  ATIiANTIC  BEPOKTEB 


(114. 


whether  there  was  a  BuflSdent  receipt  and 
acceptance  of  the  goods  sold  under  the  ver- 
bal contract  as  to  constitute  a  valid  and  bind- 
ing sale,  under  the  statute,  and  this,  of 
course,  must  depend  upon  the  facta  and  cir- 
cumstances disclosed  by  the  record  In  the 
case.  By  section  25,  art.  83,  of  the  Oode 
(1910,  c.  346)  It  Is  provided  that: 

"A  contract  to  sell  or  a  sale  of  any  goods 
or  choses  in  action  of  the  value  of  fifty  dollars 
or  upward  shall  not  be  enforceable  by  action, 
anless  the  buyer  shall  accept  part  of  the  goods 
or  choses  in  action  so  contracted  to  be  sold, 
or  sold  and  actually  receive  the  same,  or  give 
something  in  earnest  to  bind  the  contract,  or  in 
part  payment,  or  unless  some  note  or  mcmoran- 
uum  in  writing  of  the  contract  or  sale  be  signed 
by  the  party  to  be  charged  or  his  agent  in  that 
behalf.    •    •    * 

"(3)  There  is  an  acceptance  of  goods  withm 
the  meaning  of  this  section  when  the  buyer,  ei- 
ther before  or  after  delivery  of  the  goods,  ex- 
presses by  words  or  conduct  his  assent  to  be- 
coming the  owner  of  those  specific  goods." 

And  by  section  C8  of  the  same  article  It 
Is  further  provided: 

"(1)  Where  goods  are  delivered  to  the  buyer, 
which  he  has  not  previously  examined,  he  is 
not  deemed  to  have  accepted  them  unless  and 
until  he  has  a  reasonable  opportunity  of  exam- 
ining them  for  the  purpose  of  ascertaining 
whether  they  are  in  conformity  with  the  con- 
tract." 

What  will  constitute  an  acceptance  and 
receipt  so  as  to  gratify  the  statute  has  been 
frequently  considered  and  determined  by  this 
court  in  cases  under  the  seventeenth  section 
of  the  statute  of  frauds,  where  the  words  of 
the  statute  are,  in  substance,  the  same.  In 
Belt  V.  Marriott,  9  Gill,  335,  it  Is  said: 

"In  order  to  satisfy  the  statute  there  must  be 
a  delivery  of  the  Rootls  with  intent  to  vest  the 
right  of  possession  in  the  vendee,  and  there_  must 
be  an  actual  acceptance  by  the  latter  with  intent 
to  take  possession," 

In  Jones  v.  Mechanics'  Bank,  20  Md.  287, 
86  Am.  Dec.  533,  Judge  Miller  said: 

"The  statute  does  not  speak  of  delivery,  but 
superadds  to  the  delivery  which  the  common 
law  requires  acceptance  of  the  goods,  or  some 
part  of  them  by  the  purchaser.  It  confers  upon 
the  buyer  alone  the  privilege  to  prevent  a  con- 
Bommation  of  the  contract  b^  refusing  to  accept 
and  receive  the  goods.  While  there  can  be  no 
acceptance  under  the  statute  without  delivery 
by  the  seller,  yet  there  must  be  both  delivery  and 
acceptance  in  order  to  sustain  an  action  upon 
the  contract."  Belt  v.  Marriott,  9  Gill,  335; 
Hewes  v.  Jordan,  30  Md.  480,  17  Am.  Bep.  578; 
Richardson  v.  Smith,  101  Md.  20,  60  Atl.  612, 
70  L.  R.  A.  821,  109  Am.  St.  Rep.  552,  4  Ann. 
Cas.  184 ;  Cooney  &  Ca  v.  Hax  &  Co.,  02  Md. 
137,  48  AU.  58;  Jarrdl  v.  Toung,  105  Md. 
282,  68  Atl.  50,  23  L.  R.  A.  (N.  S.)  367,  12 
Ann.  Cas.  1. 

The  facts-  of  the  case,  as  presented  by  the 
record,  are  these:  On  or  about  the  21st  day 
of  November,  1916,  the  defendants  verbally 
agreed  to  buy  from  the  plaintiff  70  barrels 
of  elder,  containing  8,406  gallons,  at  14  cents 
per  gallon,  rained  at  $476.84.  On  the  9th  of 
December,  1916,  the  factory  delivered  it  to 
the  Cumberland  Valley  Railroad,  at  Win- 
chester, Va.,  consigned  to  the  defendants. 
The  bill  of  lading  was  mailed  to  the  plaintiff, 
who  received  it  in  Baltimore  on  the  11th  of 


December,  1916,  and  was  mailed  with  an  In- 
voice to  the  defendants  on  the  same  day.  The 
bill  of  lading  Is  as  follows: 

"Cumberland  Valley  Railroad  Compaoy. 
Straight  Bill  of  Lading— Original— Not  N^otia- 
ble.  Consigned  to  H.  Lipsitz  &  b'ons,  Balti- 
more, Maryland."  Car  initial,  P.  K ;  car  num- 
ber 635051;  70  bbls.  pure  apple  cider;  dated 
December  9,  1016 ;  signed  "U.  W.  Hamberger, 
Agent." 

The  witness  Kirk,  an  employ^  In  the  gen- 
eral agent's  department  of  the  Pennsylvania 
Railroad,  at  Bolton  Station,  Baltimore,  tes- 
Ufied:  That  the  bill  of  lading  on  Its  face 
shows  a  certain  car,  which  car  arrived  at 
3:50  o'clock  a.  m.  in  the  Bolton  yard  on 
the  18th  of  December,  1916,  and  that  the 
witness  had  a  personal  recollection  of  that 
car  and  of  telephoning  to  H.  Llpsitz  &  Sons 
on  the  same  date  at  11  o'clock  a.  m.,  advis- 
ing them  that  the  car  had  arrived.  That 
the  car  came  from  Winchester  over  the 
Cumberland  Valley  Railroad  to  Le  Moyne, 
a  station  Just  this  side  of  the  river  cross- 
ing at  Harrlsburg,  where  It  Is  placed  In  a 
yard  and  turned  over  to  the  Pennsylvania 
Railroad,  where  it  is  there  picked  up  by 
them  and  brought  to  Baltimore.  That  the 
time  taken  by  the  car  from  Winchester,  Va., 
to  the  Bolton  yards  was  normal.  The  wit- 
ness  stated  that  It  is  necessary  to  produce 
the  bill  of  lading  and  arrival  notice  prox)er- 
ly  indorsed  on  the  back,  as  per  instructions 
on  arrival  notice  to  obtain  goods  from  rail- 
road. The  following  is  an  atwtmct  from 
notice  received  by  defendants: 

"The  articles  described  below  have  been  re- 
ceived consigned  to  you,  and  are  now  ready  for 
delivery  on  payment  of  charges  due  thereon. 
Please  send  for  same  immediately  and  present 
this  notice  and  bill  of  lading,  when  freight  is 
called  for.  If  not  called  for  in  person,  fill  out 
order  fir  delivery  on  back  thereof.  No.  pack- 
ages, 170.  Description  of  articles  and  special 
remarks.    Brls,  Vinegar." 

That  the  car  containing  the  cider  or  vine- 
gar was  eventoally  sent  to  tfie  terminal 
warehouse.  That  when  be  called  up  the 
defendants,  he  gave  them  vinegar  as  the  lad- 
ing of  the  car. 

The  witness  NowUn  testified  that  he  called 
upon  the  defendants  on  December  16th,  to 
collect  the  bill  for  the  elder,  and  was  in- 
formed by  a  member  of  the  firm  that  the 
car  had  not  arrived,  and  it  would  be  too 
late  to  sell  dder  at  the  time  the  car  got 
to  Baltimore,  ^e  hill  of  lading  was  re- 
turned to  the  plaintiff,  and  received  by 
him  on  the  19th  of  December,  1916. 

While  the  proof  shows  that  the  defend- 
ants in  this  case  verbally  agreed  to  pur- 
chase the  elder,  upon  certain  terms  and  con- 
ditions disclosed  by  the  record,  there  is  no 
evidence  whatever  from  which  a  Jury  would 
be  warranted  to  find  an  actual  acceptance 
and  a  receipt  of  the  dder  sold  by  the  verbal 
contract,  as  wonld  gn^tlfy  the  plain  provi- 
sions of  the  statute,  and  would  constttate  a 
valid  and  enforceable  contract  of  sale.  On 
the  contrary,  the  proof  tends. to  shov  ttUlt 


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EINO  T.  BROWW 


627 


the  defendants  refased  to  accept  and  to 
receive  tbe  goods,  and  the  carload  was  sent 
to  the  terminal  warehouse  of  the  railroad 
company.  Oooney  A  Co.  v.  Hax  &  Co.,  82 
Md.  136,  48  Atl.  58. 

It  follows,  for  tbe  reasons  stated,  that  the 
court  committed  no  error  in  granting  the 
defendants'  prayers  withdrawing  the  case 
from  the  consideration  of  the  Jury,  and  the 
Judgment  will  be  affirmed. 

Judgment  affirmed,  with  costs. 


(78  N.  H.  410) 

KINO  et  aL  t.  BROWN  et  aL 

(Supreme  Court  of  New  Hampshire.    Coos. 

June  30, 1917.) 

1.  RsrOBMATION  OF  iNffTBUKENTS  «=3ll— NA- 
TUBE  AND   SCOFB  OF  REMEDY. 

Equity  will  not  reform  a  bond  for  restora- 
tion to  debtor  of  attached  property,  given  pur- 
aoant  to  Pub.  St  c.  220,  S  26,  by  correcting 
name  of  plaintiff  in  original  attachment,  since 
that  is  immaterial  in  action  on  bond. 

2l  Attachhert  4=9833— liiABiUTT  ON  Bond 

TO    DiSCBABOK. 

Since  obligors  on  bond  for  restoration  to 
debtor  of  attached  property,  given  pursuant  to 
Pub.  St.  1901,  c.  220,  i  26,  are  liable  for  so 
much  of  value  of  property  as  is  necessary  to  sat- 
isfy any  executions  for  payment  of  which  it  is 
held,  the  only  material  question  in  sheriCTs  ac- 
tion on  such  bond  is  whether  property  is  held 
for  satisfaction  of  any  execution,  and  it  Is  im- 
material in  whose  favor  original  writ  of  attach- 
ment was  issued. 

Exceptions  from  Superior  Court,  Coos 
County;   Chamberlln,  Judge. 

Bill  by  Charles  C.  King  and  another  against 
Elmest  P.  Brown  and  others.  Decree  for  de- 
fendants, subject  to  exceptions,  and  order 
dismissing  bill.  Eixceptions  sustained,  and 
Judgment  for  plaintiffs. 

Bill  In  equity,  alleging  that  upon  a  writ  In 
favor  of  Charles  C.  King  against  Thomas 
Kamey  a  yolce  of  oxen  was  attached  as  the 
property  of  Kamey ;  the  defendants.  Brown 
Bros.,  gave  bond  to  the  plaintiff  Davis,  sher- 
IflT  of  the  county,  and  took  possession  of  the 
oxen  claiming  them  by  virtue  of  a  mortgage 
to  them  by  the  firm  of  Kamey  &  Moyd,  and 
sold  them  at  auction;  that  subsequently 
Judgment  and  execution  was  obtained  against 
Kamey  in  the  suit  of  King  v.  Kamey,  and 
the  same  Is  now  unpaid;  that  in  drafting 
the  bond  the  writ  upon  which  the  attach- 
ment was  made  was  by  mistalce  described  as 
sued  out  by  King  Bros.,  instead  of  by  Charles 
C.  King.  The  prayer  of  the  bill  is  for  a 
refonuation  of  the  bond,  by  substituting  the 
name  of  the  actual  plaintiff,  Charles  C.  King, 
for  King  Bros.,  and  for  Judgment  against  the 
defendants  for  the  amount  of  the  execution, 
which  was  less  than  the  penalty  of  the  bond. 
The  condition  of  the  bond  was  as  follows: 

"Whereas,  one  pair  of  oxen  and  one  horse, 
which  were  attached  by  Henry  Cotton,  a  deputy 
sheriff  for  said  county  of  Grafton,  on  tbe  1st  day 
of  February,  1909,  upon  a  writ  in  favor  of  King 
Bros.i  of  WbiteReld,  in  the  county  of  Coos,  and 
state  of  New  Hampshire,  against  Thomas  Kar- 


ney,  as  the  property  of  catd  Thomas  Kamey, 
have  been  restored  to  the  said  Brown  Bros.,  who 
claim  said  property  by  virtue  of  a  default  of  the 
condition  of  certain  mortgages  upon  the  said 
property  given  by  said  Kamey  and  one  William 
R.  Lloyd  to  tbe  said  Brown  Bros,  and  one 
Sherl  Lang,  of  Lyndon,  in  said  county  of  Cale- 
donia, at  their  request:  Now,  if  tbe  said  Brown 
Bros,  shall  well  and  truly  pay  to  the  said  sber- 
ifiF  the  sum  of  $300,  being  the  appraised  value  of 
said  goods  and  chattels,  or  so  much  thereof 
as  may  be  necessary  to  pay  and  satisfy  any  ex- 
ecution for  tbe  payment  of  which  the  said  prop- 
erty or  its  proceeds  is  or  may  be  by  law  holden, 
then  this  obligation  shall  be  void." 

The  case  was  heard  by  a  master,  who 
found  that  Brown  Bros,  claimed  the  oxen  by 
virtue  of  a  blanket  mortgage  covering  all  the 
property  of  Kamey  &  Lloyd  then  in  or  about 
their  camps,  but  that  the  oxen  in  question 
were  owned  by  Thomas  Karney,  and  not  by 
the  partnership  of  Kamey  &  Lloyd,  and  that 
their  value  was  $110.  The  facts  as  to  the  at- 
tachment and  giving  of  the  bond  are  found 
as  alleged  in  the  hill,  with  the  additional 
finding  that  Brown  Bros.,  though  in  no  way 
misled  by  the  plaintiffs,  honestly  believed 
that  the  suit  in  question  had  been  brought 
by  King  Bros.,  and  that  they  would  not  have 
executed  the  bond,  had  they  supposed  Charles 
C.  King  was  Individually  plaintiff  in  the  suit 
The  master  found  the  plaintiffs  not  entitled 
to  a  reformation  of  the  bond,  and  the  court, 
subject  to  exception,  ruled  that  there  should 
be  a  decree  for  the  defendants  and  ordered 
the  bill  dismissed. 

Edgar  M.  Bowker,  of  Wbitefleld,  for  plain- 
tiffs. Goss  &  James,  of  Berlin,  and  Simoods, 
Searlcs  &  Graves,  of  St  Johnsbury,  Vt,  for 
defendants. 

PARSONS,  C.  J.  Upon  the  facts  establish- 
ing the  validity  of  the  sherlfTs  tlUe,  and  that 
the  defendants,  Brown  Bros.,  have  the  proi)- 
erty  or  its  proceeds,  the  bond  might  be  dis- 
regarded, and  Judgment  rendered  against 
these  defendants  in  trover  or  assumpsit  by 
amendment  for  all  the  plaintiff  claims.  But 
it  seems  to  be  considered  of  importance  that 
Judgment  should  also  run  against  the  surety 
upon  the  bond. 

[1,2]  Counsel  for  the  plaintiff  appear  to 
have  assumed  that  the  true  construction  of 
the  bond  merely  required  the  payment  of  any 
execution  issued  in  a  suit  In  favor  of  King 
Bros,  against  Thomas  Kamey,  and  that,  as 
no  execution  has  issued  in  favor  of  King 
Bros.,  there  had  been  no  breach  of  the  con- 
dition of  the  bond.  Hence  this  bill  has  been 
brought  for  the  correction  of  the  written 
evidence  of  the  contract  relied  upon.  But 
equity  does  not  interfere  to  correct  an  im- 
material error,  which  does  not  affect  the 
rights  of  the  parties.  Hence  the  first  ques- 
tion is  whether  the  error  in  describing  the 
plaintiffs  in  the  suit  in  which  the  attach- 
ment was  made  prevents  a  recovery  upon  the 
bond.  The  error  is  an  immaterial  one.  The 
imrties    adopted    the   procedure   authorized 


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101  ATIi/lNTIO  REPORTER 


(N.H. 


for  the  restoratton  to  the  debtor  of  personal 
property  held  under  attachment  P.  S.  c. 
220,  {  26.  Property  go  restored  Is  still  at- 
tachable upon  subsequent  writs,  as  though 
it  remained  In  the  sheriff's  jxissesslon.  For 
that  purpose  it  Is  deemed  still  In  the  custody 
of  the  ofBcer.  P.  S.  a  220,  |  27.  Hence  the 
provision  of  the  bond  to  pay  to  the  sheriff 
the  appraised  value  of  the  property,  or  so 
much  thereof  as  may  be  necessary  to  pay  and 
satisfy  any  execution  for  the  payment  of 
which  said  property  or  its  proceeds  la  or 
may  be  by  law  holden.  The  material  ques- 
tion is  whether  the  goods  for  which  the  de- 
fendants gave  bond  are  holden  for  the  pay- 
ment of  a  iMtrtlcular  execution.  The  suit  in 
which  the  original  attachment  is  made  is 
Immaterial.  The  recital  in  this  case  by  way 
of  Inducement  sets  out  the  claims  of  the  par- 
ties. The  Browns  claimed  the  right  of  pos- 
session. Whether  upon  trial  they  proved 
sudi  right  by  a  prior  mortgage  from  Thomas 
Eamey,  or  established  the  title  in  Kamey  & 
Liloyd,  from  whom  they  had  a  mortgage, 
would  be  of  no  importance.  It  is  equally 
Immaterial  to  the  sberilTB  claim  to  hold  the 
property  under  attachment  against  Thomas 
Kamey,  in  whose  favor  the  writ  of  attadi- 
ment  was  Issued,  now  that  the  title  of  Brown 
Bros,  has  failed.  The  facts  entitling  the 
plaintiff  sheriff  to  recover  upon  the  bond 
have  been  found,  and  there  should  be  Judg- 
ment for  him  for  the  amount  of  the  execu- 
tion, with  interest. 

Bzception   sustained.     Judgment  for  the 
plaintiff.    All  concurred. 

(78  N.  H.  440) 

OAEPENTEJR  v.  OABPENTER. 

<Sapreme  Court  of  New  Hampshire.     OarroIL 

June  30,  1017.) 

1.  Appeai.  and  EasoR  <S=>501(1)— Exceptions 
— Question  of  Fact. 

Whether  an  exception  was  taken  is  a  ques- 
tion of  fact  for  the  trial  court  to  find  and  re- 
port, and  argument  upon  the  transfer  of  a  case 
that  an  exception  was  intended  to  be  taken  is 
irrelevant  and  futile. 

2.  Divorce  <S=»179  —  Transfee  of  Cacsb  — 
Grounds  of  Review  —  Presentation  or 
Prf.serv.\tion. 

That  the  libelant  objected  to  the  granting  of 
a  motion  for  a  rehearing  and  to  the  taking  of  a 
view  and  the  proceedings  thereunder  is  of  no  ma- 
teriality here,  since  it  appears  from  the  bill  of 
exceptions  that  no  exceptions  were  interposed  or 
allowed. 

3.  Divorce  ®=»170— Decrees— Whew  Finai/— 
Time. 

Under  the  practice  prevailing  in  the  superior 
court,  a  decree  for  divorce  does  not  become  res 
judicata  and  final  until  the  end  of  the  term,  or 
until  a  special  order  is  made  for  judgment  on  a 
specified  date  during  term  time. 

i.  Divorce  <S=>ie5(4)  —  Decrees  —  Poweb  to 
Vacate. 
On  July  11th,  the  court  granted  libelant  a 
divorce.  At  libelee's  request,  the  court  suspend- 
ed the  decree  for  30  days,  and  on  August  7th 
she  filed  a  motion  for  a  withdrawal  of  the  order 
of  divorce  and  a  rehearing.    A  preliminary  hear- 


ing on  this  motion  was  had  before  the  court  od 
August  26th.  A  reargument  was  had,  and  on 
October  23d  and  24th  the  case  was  submitted. 
On  November  6th,  the  court  ordered  that  the 
decree  of  divorce  be  vacated,  and  the  libel  dis- 
missed. Beld,  that  aa  no  special  day  hod  been 
appointed  when  the  decree  entered  should  be- 
come effective,  the  case  remained  open  until  the 
rehearing  had  been  had,  and  that  therefore  the 
court  had  jurisdiction  to  vacate  the  decree. 
6.  Divorce  <S=9lM— C!obhection  of  Ebbobs— 
New  Trial. 
The  grant  of  a  motion  for  further  proceed- 
ings after  the  first  decree  was  entered  on  the 
ground  that  some  of  the  witnesses  had  testified 
falsely  did  not  require  a  bearing  of  the  case  de 
novo,  where  the  court  stated  that  if  he  was 
satisfied  that  libelant  had  not  made  ont  his  case, 
he  would  dismiss  it. 

6.  Divorce  <g=al79  —  Gbouwds  of  Review  — 
Preservation. 

The  question  whether  the  evidence  warrant- 
ed the  court  in  vacating  the  decree  will  not  be 
considered,  where  no  exception  was  taken  before 
the  case  was  submitted. 

7.  Courts  ®=>20— View  iw  Another  State- 
Jurisdiction. 

The  court  in  suit  for  divorce  did  not  exceed 
his  jurisdiction  in  taking  a  view  of  the  premises 
in  which  defendant  was  charged  with  having 
committed  adultery,  though  situated  in  another 
state. 

8.  Tbial  «=3309— View. 

The  information  gained  from  a  view  is  evi- 
dence which  the  trier  of  the  facts  is  antfaorized 
to  use  in  reaching  a  verdict. 

9.  Trial  «=375— Trial  bt  Court— View. 

The  judge,  when  trying  a  case  without  a 
jury,  may  take  a  view,  as  he  is  pro  hac  vice  the 
jury. 

10.  WoBDS  AND  Phbases— "View." 

A  "view"  is  a  method  of  procedure  con- 
ducted in  the  absence  of  the  court  as  an  aid  in 
the  ascertainment  of  the  truth  from  the  physical 
act  of  inspection,  which  does  not  require  the  ex- 
ercise of  the  judicial  powers  of  a  court  at  the 
time  for  its  proper  performance. 

11.  Trial    «=»375—lBREauLABiTiES— Waiver. 
If  for  any  reason  the  taking  of  a  view  in  an- 
other state  was  an  irregularis,  it  was  waived 
by  the  absence  of  an  objection  thereto. 

12.  Appeal  and  Error  «=>201(1),  259^Ibbeo- 
TTLA  RITIE8— Waives. 

Whether  there  were  irregularities  at  the 
view  cannot  be  considered  on  appeal,  in  the  ab- 
sence of  any  objection  and  exception  thereto. 

13.  Divorce  ®=>111  —  Strict  Rules  of  Evi- 
dence. 

Strict  rules  of  evidence  are  not  applicable  to 
divorce  trials. 

Exceptions  from  Superior  Court,  Carroll 
County;    Kivel,  Judge. 

Libel  for  divorce  by  Ralph  O.  Carpenter 
against  Marguerite  Paul  Carpenter.  Libel- 
ant's motion  to  set  aside  the  decree  ordering 
the  decree  of  divorce  vacated  and  the  libel 
dismissed  denied,  and  he  excepts.  Excep- 
tions overruled,  and  libel  dismissed. 

The  libel  alleges  adultery  as  a  ground  for 
divorce,  committed  at  Magnolia,  Muss.  Sev- 
eral witnesses  for  the  libelant  testified  that 
about  the  times  alleged  in  the  libel  they  saw 
the  libelee  in  compromising  relations  with 
one  or  more  men  at  Magnolia.  In  reliance 
upon  this  evidence  the  court,  on  July  11, 
1916,  granted  the  libelant  a  divorce    At  the 


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CARPENTER  v.  CARPENTER 


629 


libelee's  request  seasonably  filed  the  conrt 
suspended  the  decree  for  30  days,  and  on 
August  7,  1916,  she  filed  a  motion  for  a  with- 
drawal of  the  order  of  divorce  and  a  re- 
argument  or  rehearing  of  the  question  of 
adultery  and  other  matters.  The  ground  of 
the  motion  was  that  the  witnesses  who  testi- 
fied to  the  alleged  acts  of  adultery  could 
not  see  what  they  said  they  saw,  on  ac- 
count of  the  physical  situation  as  It  existed 
at  Magnolia,  and  a  view  was  suggested.  A 
preliminary  hearing  on  this  motion  was  had 
before  the  conrt  on  August  26th.  Subse- 
quently the  libelee  submitted  affidavits  of 
several  persons  In  support  of  her  motion. 
Thereupon  the  court  ordered  a  view  at  Mag- 
nolia, which  was  taken  in  the  presence  of 
counsel  for  both  sides,  on  September  10th 
and  September  23d,  when  experiments  or 
tests  were  made  to  determine  the  truth  of 
the  statements  made  by  the  libelant's  wit- 
nesses. Afterwards  the  court  ordered  the 
case  reargued  upon  the  question  of  the  abil- 
ity of  the  witnesses  to  observe  what  trans- 
pired at  Magnolia  as  they  testified,  and  up- 
on the  question  whether  if  their  testimony 
were  stricken  out  the  remaining  evidence 
is  sufficient  to  support  the  finding  of  adultery. 
The  reargument  was  had  October  23d  and 
24th,  and  the  case  was  submitted.  On  Oc- 
tober 30th  a  further  view  was  taken  and  ex- 
periments made.  November  6th  the  court 
ordered  that  the  decree  of  divorce  be  va- 
cated and  the  libel  dismissed.  The  libelant's 
UIl  of  exceptions  was  filed  December  12th, 
and  on  the  20th  be  filed  a  motion  to  set 
aside  the  decree  of  November  6th,  which 
was  denied,  and  the  libelant  excepted.  No 
other  exception  was  noted  to  any  of  the 
above-described  proceedings,  previous  to  the 
filing  of  the  bill  of  exceptions.  Other  facts 
are  stated  In  the  opinion. 

Martin  P.  Howe,  of  Concord,  and  W.  H. 
Smart,  Michael  J.  Sughrue,  and  Henry  F. 
Hurlburt,  all  of  Boston,  Mass.,  for  plain- 
tiff. Streeter,  Deraond.  Woodworth  &  Sul- 
loway,  of  Concord,  and  Walter  I.  Badger, 
of  Boston,  Mass.,  for  defendant 

WALKER,  J.  Many  of  the  questions  ar- 
gued by  the  libelant  are  not  properly  before 
the  court.  It  is  ordinarily  essential,  under 
our  practice,  that  parties  desiring  to  litigate 
questions  of  law  in  this  court,  which  were 
involved  in  the  trial  of  the  case,  should  un- 
equlTOcally  take  an  exception  to  the  ruling  of 
wlilcb  they  complain,  and  that  the  record 
should  show  they  did  so.  A  mere  objection, 
not  followed  by  an  exception,  is  unaralling. 
"Under  the  well-established  practice  of  this 
state,  unless  exception  is  taken  and  noted. 
It  is  conclusively  understood  that  the  ruling 
is  accepted  as  the  law  of  the  case."  Lee  v. 
Dow,  73  N.  H.  101,  105,  58  Atl.  374,  376; 
Story  V.  Railroad,  70  N.  H.  364,  380,  48  Atl. 
288;  Chesbrough  v.  Mfg.  Co.,  77  N.  H.  387, 
»2  Atl.  832. 

H,  2]  Whether  an  exception  was  taken  is 


a  question  of  fact  for  the  trial  court  to  find 
and  report,  and  argument  upon  the  transfer 
of  a  case  that  an  exception  was  Intended  to 
be  taken  is  irrelevant  and  futile.  Conse- 
quently the  tact  that  the  libelant  objected 
to  the  granting  of  the  motion  for  a  rehearing 
and  to  the  taking  of  a  view  and  to  the  pro- 
ceedings thereunder  Is  of  no  materiality  here, 
since  it  appears  from  the  bill  of  exceptions 
that  no  exceptions  were  interposed  or  allowed 
to  any  of  ttie  matters  now  complained  of, 
until  the  filing  of  the  bill  of  exceptions  De- 
cember 12,  1916, 

[3,4]  But  it  is  argued  that  although  the 
libelant  took  no  exception  to  the  action  of 
the  court  in  entertaining  the  libelee's  mo- 
tion for  a  rehearing  of  the  case,  after  the 
decree  of  July  11,  1916,  granting  a  divorce 
to  the  libelant.  It  is  still  permissible  for  him 
to  take  the  position  that  upon  the  filing  of 
that  decree  the  court's  Jurisdiction  of  the 
case  was  at  an  end,  and  hence  that  the  de- 
cree of  November  11,  1016,  vacating  the  first 
decree  and  ordering  a  dismissal  of  the  bill, 
was  a  nullity.  One  sufficient  reason  why 
this  position  is  imsound,  even  if  there  were 
no  others,  is  that  under  the  practice  pre- 
vailing In  the  superior  conrt  a  decree  for  di- 
vorce, like  other  decrees  or  verdicts,  does  not 
become  res  adjudicata  and  final  until  the 
end  of  the  term  when  the  parties  are  en- 
titled to  Judgment  if  the  litigation  is  at 
an  end,  or  until  a  special  order  is  made  for 
Judgment  on  a  specified  date  during  term 
time  In  Hillsborough  county  the  practice  is 
to  regard  the  first  day  of  each  month  as 
Judgment  day.  Whatever  the  ancient  prac^ 
tlce  may  have  been  in  this  respect,  by  which 
the  enrollment  of  a  decree  was  regarded  as 
a  final  act,  it  is  not  of  binding  eCfect  when 
a  different  practice  prevails.  As  no  special 
day  had  been  appointed  when  the  decree 
should  become  effective  as  a  Judgment,  the 
case  bad  not  been  finally  dlsxwsed  of  when  the 
rehearing  was  had  and  the  order  made  an- 
nulling the  first  decree  and  dismissing  the 
libel.  The  case  had  not  been  fully  disposed 
of  (Haynes  v.  Thorn,  28  N.  H.  386,  399),  but 
was  still  before  the  court  and  subject  to  such 
orders  as  Justice  might  require  (Adams  ▼. 
Adams,  51  N.  H.  388,  396,  12  Am.  Rep.  184). 
It  is  not  true,  therefore,  as  suggested  in  argu- 
ment that  the  status  of  the  parties  as  hus- 
band and  wife  was  finally  changed  the  in- 
stant the  decree  of  divorce  was  entered.  The 
court  having  found  that  Justice  required  that 
the  decree  of  divorce  should  be  vacated,  its 
power  to  make  the  last  decree  cannot  be 
doubted. 

The  distinction  between  this  case  and  Pol- 
som  v.  Folsom,  65  N.  H.  78,  is  obvious.  That 
was  an  application  for  a  retrial  of  a  divorce 
case,  which  had  been  heard  and  determined 
at  a  former  term  of  court,  upon  the  ground 
of  perjury;  and  upon  the  allegations  of  the 
petition  it  was  held  that  as  a  matter  of  law 
the  petition  could  not  be  granted.  It  would 
hardly  be  regarded  as  commendable  practice 


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101  ATLANTIC  RSPORTBR 


(N.H. 


In  this  state  to  bold  that  the  court,  after  hav- 
ing technically  entered  a  decree  of  divorce, 
could  not  revoke  it  during  the  term  upon 
being  convinced  that  he  had  been  grossly 
Imposed  upon  by  the  libelant  and  his  wit- 
nesses. Such  practice  would  be  useful  for  no 
apparent  purpose  other  than  that  of  promot- 
ing injustice  and  for  that  reason  it  does  not 
prevail  in  this  state.  "The  notion  that  when 
judgment  had  been  given  and  enrolled  no 
amendment  could  be  made  at  a  subsequent 
term  (3  Bl.  Com.  407)  was  long  ago  aban- 
doned." Owen  V.  Weston,  63  N.  H.  699,  603, 
4  Att.  801,  808  (66  Am.  Bep.  647). 

It  appears,  moreover,  that  the  decree  ot 
divorce  was  suspended  on  July  13th  for  80 
days  from  July  11th,  the  day  it  was  entered. 
In  order  to  permit  the  libelee  to  file  her 
motion  for  a  rehearing.  While  this  motion 
was  pending  and  while  the  case  was  being 
reconsidered  and  reheard,  no  suggestion  was 
made  by  any  one  that  the  power  of  the  court 
came  to  an  end  when  the  30-day  limitation 
expired,  as  la  now  argued  by  the  libelant 
Until  the  questions  raised  on  the  rehearing 
were  determined  the  case  remained  open,  in 
accordance  with  the  understanding  of  the 
parties,  the  undoubted  intention  of  the  court, 
and  the  recognized  practice  in  this  state. 
Eastman  v.  Concord,  64  N.  H.  263,  8  Atl. 
822.  No  question  of  Jurisdiction  Is  involved 
in  this  contention,  requiring  farther  discus- 
sion. 

[S]  But  It  Is  claimed  that  the  libelee's  mo- 
don  for  further  proceedings  after  the  first 
decree  was  entered  was  in  legal  effect  an 
application  for  a  new  trial,  and  that  by 
granting  the  motion  the  court  could  only 
proceed  upon  that  theory  and  hear  the  case 
de  novo.  If  it  is  conceded  that  a  retrial  of 
the  whole  case  might  have  been  ordered  by 
the  court  after  it  was  convinced  that  a  serl- 
ous  error  of  fact  had  been  introduced  at  the 
first  trial,  it  is  clear  that  such  an  order  was 
not  the  only  method  by  which  the  error  could 
be  corrected.  Lisbon  v.  Lyman,  49  N.  H.  BUH. 
That  no  misunderstanding  might  be  indulged 
as  to  what  the  court  intended  to  do,  if  he 
found  that  some  of  the  libelant's  witnesses 
had  testified  falsely  at  the  first  trial,  upon 
whose  testimony  he  had  relied  in  concluding 
that  the  libelee  had  committed  adultery,  the 
court  stated  expressly  at  a  hearing  as  to  the 
scope  of  the  questions  presented  by  the  mo- 
tion, that: 

"I  shall  vacate  my  decree  and  order  the  libel 
dismissed  it  I  am  satisfied  that  by  the  balance 
of  probabilitiea  the  libelant  has  not  made  out 
bis  case." 

Other  remarks  by  the  court  were  made  at 
the  same  time  of  similar  import,  and  no 
exception  or  objection  was  made,  on  the 
theory  now  suggested  that  the  court  could 
only  order  a  new  trial.  It  is  difficult  to  im- 
derstand  how  counsel  could  have  been  mls> 
led  in  this  respect  or  have  been  taken  by 
surprise,  when  the  court  ordered  the  first 
decree  vacated  and  the  libel  dismissed.    It 


Is  certain  that  this  court  can  draw  no  such 
Inference.  If  the  exception  which  the  libel- 
ant took  to  the  last  decree  might  be  held 
to  cover  the  objection,  it  must  be  overruled. 

[1]  Nor  can  the  question  whether  the  evi- 
dence warranted  the  court  in  vacating  the 
decree  and  ordering  the  bill  dismissed  be 
now  considered,  since  it  appears  that  there 
was  not  "any  claim  as  to  the  insufficiency 
of  evidence  to  warrant  a  reconsideration  of 
the  first  decree  and  dismissal  of  the  bill  made, 
until  December  20,  1916,"  several  days  aft- 
er the  last  decree  was  entered.  To  have  the 
benefit  of  an  exception  upon  that  ground  it 
must  be  taken  before  the  case  Is  submitted; 
otherwise  the  objection  is  deemed  to  be 
waived.  Head  &  Dowst  Go.  v.  Breed«tf 
Club,  76  N.  H.  449,  75  Aa  062;  Moynihan  ▼. 
Brennan,  77  N.  H.  273,  00  Atl.  964. 

[7]  Perhaps  the  principal  contentioa  of  the 
libelant  is  in  support  of  the  proposition  that 
the  court  in  taking  a  view  in  Slassachusetts 
attempted  to  perform  judicial  acts  which  for 
want  of  territorial  jurisdiction  were  absolute- 
ly void,  and  that  it  Is  immaterial  whether  the 
libelant  excited  to  that  procedure  or  not, 
since  absolute  want  of  power  is  not  remedied 
by  consent,  and  may  be  taken  advantage  ot 
at  any  time  during  the  trial  or  subsequently 
by  collateral  attadc.  While  It  is  true  that 
when  it  appears  a  court  has  no  jurisdiction 
of  the  subject-matter  of  a  suit,  the  proceed- 
ing will  be  dismissed,  even  if  no  objection 
is  made  (Burgess  v.  Burgess,  71  N.  H.  208, 
51  Atl.  1074),  the  question  is  whether  the 
taking  of  a  view  in  another  state  is  so  tat 
beyond  the  jurisdiction  of  the  court  that  it 
renders  all  subsequent  proceedings  in  the 
case,  including  the  verdict  and  judgment, 
absolutely  void,  or  whether  it  is  at  most 
merely  an  irregularity  in  the  trial,  which  Is 
obviated  by  the  consent  of  the  parties,  or 
by  the  absence  of  objectioa  thereto.  The 
solution  of  this  question  depends  very  ma- 
terially upon  the  object  or  purpose  of  a  view. 
If  it  is  to  transfer  the  trial  with  all  its  in- 
cid«its  to  the  place  to  be  inspected,  little 
doubt  would  arise  that  it  could  not,  for  many 
reasons,  take  place  outside  the  state;  but, 
if  it  is  merely  to  enable  the  jury  or  the  trier 
of  the  facts  to  acquire  some  special  informa- 
tion mat^lal  to  the  case  by  inspectioa  alone 
that  could  not  be  conveniently  or  aatiafac- 
torily  presented  In  the  courtroom,  the  fact 
that  the  inspection  in  the  absence  of  the 
court  occurred  in  another  state  would  seem 
to  have  little  legitimate  bearing  on  the  power 
of  the  court  to  try  the  merits  of  the  case. 
Whether  a  referee  or  master  or  a  judge  may 
conduct  a  trial,  in  whole  or  in  part,  outside 
the  state  It  Is  unnecessary  to  decide.  Many 
instances  of  such  procedure  have  occurred, 
apparently  by  consent  of  the  parties. 

[I]  In  some  sense  the  purpose  of  a  view  la 
the  acquisition  by  the  jury  of  a  special  and 
restricted  kind  of  evidence,  which  the  trial 
court  in  its  discretion  finds  may  be  of  \ue  to 
the  Jury  in  reaching  a  verdict    The  Jury 


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are  not  tsent  out  to  get  ertdence  generally,  or 
to  examine  phy^cal  facta  not  autliorlssed  in 
the  order.  Tbey  do  not  bear  oral  testimony ; 
DO  witnesses  are  examined;  no  argumeats 
are  mad&  They  merely  see  such  physical 
objects  as  are  properly  sbown  to  tbem,  and 
receive  Impresfiions  therefrom.  They  get  a 
mental  picture  of  the  locality,-  which  as  sen- 
alble  men  they  carry  back  to  the  courtroom 
and  nse  in  their  deliberations  as  evidence. 
It  would  therefore  be  senseless  to  say  that  tn 
this  restricted  sense  the  Information  thus 
gained  by  actual  inspection  Is  not  evidence 
which  the  trier  of  the  fact  is  authorized  to 
use  in  reaching  a  verdict,  and  which  counsel 
are  entitled  to  comment  upon  In  argument. 
The  acquisition  of  such  evidence  does  not 
depend  upon  the  oaths  of  witnesses,  is  not 
tested  by  cross-examination,  and  presents 
no  questions  of  law  calling  for  a  ruling  of 
the  court  on  the  grounds  of  admissibility  or 
relevancy.  The  court  as  such  has  no  func- 
tion to  perform  when  such  evidence  is  pre- 
sented, for  it  depends  entirely  upon  the 
Jury's  ability  to  observe  what  is  pointed  out 
to  them.  No  trial  is  had  while  the  view  Is  In 
progress,  and  the  court  is  not  In  session  at 
the  place  of  the  view  for  the  trial  of  the 
case. 

The  procedure  by  which  special  evidence 
of  the  character  indicated  becomes  available 
Is  In  fact  based  upon  a  useful  rule  of  neces- 
sity, without  which  much  valuable  informa- 
tion dearly  bearing  upon  the  trial  of  cases 
would  be  withheld  from  the  tribunal  charged 
with  the  duty  of  dedding  the  facts.  It  pro- 
vides a  method  by  which  evidence  of  a  pecu- 
liar and  restricted  character  may  be  obtained 
in  the  absence  of  the  court  and  without  the 
observance  of  the  rules  deemed  essential  In 
the  production  of  evidence  given  in  court 
It  may  not  be  inaccurate  to  say  that  this 
procednre  is  anomalous,  but  Is  Justified  In 
fact  as  a  necessary  exception  to  the  general 
rule  that  evidence  must  be  produced  in  court 
subject  to  numerous  Judicial  restrictions  and 
directions. 

There  is  much  apparent  conflict  in  the 
language  used  by  courts  in  defining  the  ob- 
ject or  purpose  of  ordering  or  permitting 
views  to  be'  taken.  In  some  of  the  authori- 
ties it  is  said  that  a  view  is,  in  no  proper 
sense.  Intended  to  furnish  evidence,  but  to 
afford  a  means  by  which  the  Jury  can  better 
understand  and  apply  the  strictly  legal  evl- 
dencfi  already  in  the  case  or  to  be  thereafter 
submitted.  This  restrictive  language  is  de- 
rived from  St.  4  &  6  Anne,  c.  16,  {8,  where 
In  the  discretion  of  the  court  Jurors  may  be 
■ordered  to  take  a  view  of  the  "place  in  ques- 
tion. In  order  to  their  better  understanding 
the  evidence  that  will  be  given  upon  the 
trials  of  such  issues."  Similar  expressions 
occur  In  the  statute  law  of  many  of  the 
states.  In  this  state  the  statute  provides 
that: 

"In  the  trial  of  actions  involving  qucsticna  of 
Tight  to  reed  estate,  or  in  which  the  examina- 


tion of  places  or  objects  may  aid  the  jnry  in  un- 
derstanding the  testimooT,  the  court,  on  motion 
of  either  party  may,  in  their  discretion,  direct  a 
view  ot  tne  premises  by  the  jury,  under  such 
rules  as  they  may  prescribe."  P.  S.  c.  227,  f 
19. 

It  i>  not  clear  bow  this  distinction  proves 
the  proposition  that  the  information  derived 
from  a  view  is  not  for  all  practical  purposes 
evidence,  or  that  It  Is  not  as  much  evidence 
as  similar  Information  conveyed  by  an  in- 
spection of  a  physical  object  exhibited  to  the 
Jury  in  court. 

Other  authorities  hold  that  the  informa- 
tion obtained  by  the  Jury  upon  a  view  is  as 
much  eTldentiary  tn  its  character  as  the 
sworn  testimony  of  witnesses  regularly  re- 
ceived in  court,  while  still  other  courts  re- 
gard It  as  evidence  to  t>e  considered  like 
sworn  testimony,  subject  to  the  qualification 
that  alone  it  is  not  sufficient  to  support  a 
verdict  B"'or  cases  in  support  of  these  dif- 
fering opinions  see  note  in  42  L.  R.  A.  385. 
While  the  purpose  of  a  view  is  not  to  ob- 
tain "evidence"  in  the  broad  sense  of  that 
term  or  to  permit  the  jury  to  use  their 
power  of  observation  while  taking  a  view  to 
discover  material  facts  not  apparent  from 
the  actual  situation  of  the  things  under  ob- 
servation, it  is  dUficult  to  understand  why 
the  impressions  made  upon  their  minds  by 
an  inspection  of  a  physical  object  regularly 
pointed  out  to  them  should  not  be  permitted, 
in  a  legal  sense,  to  have  the  force  of  evi- 
dence, when  as  a  matter  of  simple  mental 
reasoning  honest  jurymen  could  reach  no 
other  result  If  the  object  is  black  when 
seen  by  the.  Jury  it  would  be  absurd  to  ex- 
pect them  to  find  that  it  was  white,  in  the 
aosence  of  evidence  indicating  that  they  had 
been  imposed  upon.  An  Instruction  that  al- 
though they  knew  from  an  authorized  ob- 
servation of  it  that  It  was  black,  they  could 
not,  as  a  matter  of  law,  find  it  was  of  that 
color^  because  they  had  no  legal  evidence  of 
it  would  strike  the  ordinary  mind  as  a 
strange  and  unreasonable  doctrine,  based  up- 
on a  refinement  in  legal  reasoning  subver- 
sive of  the  Just  and  practical  administration 
of  Justice.  "There  is  no  sense  in  the  con- 
clusion that  the  knowledge  which  the  jurors 
acquired  by  the  view  is  not  evidence  in  the 
case."  1  Thon«>.  Trials,  i  893;  2  Wig.  £v. 
i  1168;  Tully  V.  Railroad,  134  Mass.  496;  7 
Bnc.  PI.  &  Fr.  681.  There  is.  UtUe  merit 
la  the  contention  that  the  libelant  bad  no 
means  of  knowing  what  Impressions  the 
evidence  produced  by  the  view  bad  upon  the 
Justice,  and  hence  that  no  way  was  open  to 
meet  or. explain  them;  for  thla  is  equally 
true  what  a  Jury  takes  a  view. 

A  more  extended  discussion  of  this  sub- 
ject or  a  critical  examination  of  the  cases 
outside  this  Jurisdiction  which  seem  to  be 
germane  is  unnecessary,  because  the  unques- 
tioned practice  in  this  state  sbown  by  the 
cases  is  determinative  of  the  question.  A 
view  is  one  means  of  obtaining  a  certain 
class  of  evidence.    Information  thus  acquir- 


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101  ATLANTIC  REPORTER 


(N.H. 


ed  by  tbe  Jury,  wfalcb  Is  material  to  tbe  Issue 
and  necessarily  Involved  In  the  subject- 
matter  of  tbe  view,  has  been  recognized  aa 
evidence  In  the  following  cases,  among  oth- 
ers, without  a  suggestion  that  Its  use  as 
such  was  open  to  doubt:  Cook  v.  New  Dur- 
ham, 64  N.  H.  419,  420,  13  AU.  650;  Concord 
Land  &  Water  Power  Co.  v.  Clough,  70  N.  H. 
627,  47  Atl.  704;  Flint  v.  Company,  73  N.  H. 
483.  485,  62  Atl.  788;  Lane  r.  Manchester 
Mills,  75  N.  H.  102,  106,  71  Atl.  629;  City 
BowUng  Alleys  v.  Berlin,  78  N.  H.  160,  170, 
97  AtL  976 ;   Osman  v.  Company,  90  Atl.  287. 

Nor  Is  It  Important  to  Inquire  whether  tbe 
power  of  tbe  court  to  order  an  Inspection  of 
objects  located  at  a  distance  from  where  the 
trial  Is  had  Is  an  Inherent  and  necessary 
power  of  tbe  court  under  tbe  common  law, 
or  whether  It  Is  derived  from  the  statute,  or 
whether  It  may  be  justified  on  both  grounds 
la  conjunction,  since  whatever  theory  Is 
adopted  as  a  matter  of  historical  Investiga- 
tion, no  one  can  question  the  existence  of 
tbe  power  In  this  state,  or  successfully  con- 
tend that  it  does  not  afford  a  reasonably 
convenient  method  of  securing  essential  and 
material  evidence.  "If  tbe  established  prac- 
tical construction  Is  theoretically  wrong,  the 
case  is  one  of  a  class  in  which  It  is  proper  to 
act  upon  the  maxim  that  common  opinion 
and  common  practice  may  be  accepted  as 
conclusive  evidence  of  what  the  law  is."  Ty- 
ler v.  Flanders,  68  N.  H.  371,  373;  Oleason 
V.  Emerson,  51  N.  H.  406. 

[9]  Tbe  argument  Is  presented  that  the 
statute  does  not  authorize  a  judge,  when  try- 
ing a  case  without  a  jury,  to  take  a  view, 
and  that  the  common  law  does  not  permit 
such  procedure.  In  short  the  position  Is 
that  he  has  no  jurisdiction  to  take  a  view, 
however  important  such  procedure  may  be  In 
the  particular  case.  But  the  discnssloD  of 
that  preposition,  which  is  in  direct  conflict 
with  the  uniform  practice  In  tbe  courts  of 
this  state  since  the  foundation  of  the  govern- 
ment, under  the  statute,  or  under  the  com- 
mon law,  would  be  of  no  practical  use.  Tbe 
trier  of  facts,  whether  the  court,  referees, 
or  masters,  as  well  as  juries,  have  been  per- 
mitted In  accordance  with  the  principle  of 
utilizing  the  best  inventible  procedure,  to 
view  material  objects  in  order  to  ascertain 
the  truth.  See  Adams  v.  Bushey,  60  N.  H. 
290,  where  a  referee  took  a  view  In  the  ab- 
sence of  the  parties,  and  tbe  report  was  sus- 
tained. A  contrary  doctrine  would  seem  to 
rest  upon  the  most  tecbnical  and  unsatisfac- 
tory reasoning.  A  judge  when  taking  a  view 
acts  simply  as  a  trier  of  facts;  he  is  pro 
bac  vice  the  jury.  See  Fowler  v.  Towle,  49 
N.  H.  507,  523 ;  P.  S.  c.  204,  {{  8,  9. 

But  it  is  argued,  with  great  apparent  con- 
Mence,  that  the  judge  exceeded  his  territori- 
al jurisdiction  when  he  took  tbe  view  in 
Massachusetts.  It  must  be  borne  in  mind 
that  he  did  not  hold  court  or  try  the  case  in 
that  state.  When  be  was  there  the  court 
was  in  recess.    And  so  far  as  the  argument 


Is  based  upon  that  assumption  It  is  clearly 
fallacious,  as  shown  above.  It  cannot  be 
supported  upon  that  ground,  aiiless  when  a 
view  is  taken  by  the  jury  it  is  correct  to  say 
that  the  trial  Is  transferred  to  the  locality  in- 
spected, although  the  presiding  justice  is  not 
present,  no  testimony  is  taken,  and  none  of 
the  usual  and  necessary  methods  Incident  to 
a  trial  are  observed.  A  legal  trial  in  com- 
mon-law countries  presupposes  and  is  predi- 
cated upon  the  presence  of  a  presiding  jus- 
tice under  whose  directions  the  case  is  tried. 
If  no  such  person  Is  present  it  would  be  a 
dear  misnomer  to  say  that  there  could  be  a 
legal  trial.  People  v.  Thorn,  156  N.  Y.  286, 
50  N.  E.  947,  42  L.  R.  A.  308.  There  was  no 
attempted  trial  of  the  case  In  Massachusetts. 

All  that  the  judge  did  was  to  go  to  Mag- 
nolia without  the  objection  of  the  libelant,  as 
the  record  shows,  and  In  the  presence  of  the 
parties  or  their  attorneys  observe  the  situa- 
tion of  tbe  premises  In  Its  bearing  upon  the 
disputed  question,  whether  witnesses  who 
had  testified  for  the  libelant  could  see  tbe 
libelee  In  certain  locations  about  the  hotel 
from  the  positions  they  said  they  occupied. 
This  act,  it  Is  urged,  he  had  no  jurisdictional 
power  to  do,  and  authority  to  do  It  could  not 
be  conferred  by  the  consent,  waiver,  or  ex- 
press request  of  tbe  parties,  and  hence  that 
the  fatal  effect  of  such  an  act  may  be  taken 
advantage  of  without  a  formal  exception. 
WhUe  It  Is  true  tbat  the  jurisdiction  of  a 
court  of  the  subject-matter  of  a  suit  when  It 
exists  Is  alone  conferred  by  the  law  and  its 
absence  may  be  taken  advantage  of  at  any 
stage  of  the  proceedings,  and  If  it  is  conced- 
ed that  a  court  cannot  exercise  its  Judicial 
functions  outside  the  prescribed  limits  of  Its 
jurisdiction,  tbe  Inquiry  Is  whether  the  jus- 
tice, when  he  made  the  inspection  at  Magno- 
lia, was  exercising  a  judicial  power  that  be 
could  only  exercise  in  Mew  Hampshire.  Did 
the  prescribed  territorial  limits  of  the  superi- 
or court  of  Carroll  county  In  the  trial  of 
causes  preclude  him  as  the  trier  of  the  facts 
in  this  case  from  taking  a  view  at  a  p<^t 
beyond  those  limits? 

It  cannot  be  successfully  maintained  that 
this  doctrine  of  jurisdiction  is  so  Inelastic  as 
to  render  a  view,  ordered  by  the  court  of  one 
county  to  be  taken  within  tbe  limits  of  an- 
other, void  for  want  of  territorial  Jurisdic- 
tion. Where  both  parties  were  residents  of 
Grafton  county  and  the  suit  was  brought  la 
Belkmap  county,  the  trial  in  the  latter  county 
was  not  arrested  when  the  Jurisdictional  ir- 
regularity was  shown  on  defendant's  motion 
for  a  change  of  venue.  The  decisive  ques- 
tion in  tbat  case  was  what  justice  required 
under  tbe  circumstances.  It  was  not  treated 
as  a  fundamental  question  of  jurisdiction. 
Wbltcher  v.  Association,  77  N.  H.  405,  92  AtU 
736.  In  Wheeler  &  Wilson  Mfg.  Co.  v.  Whit- 
comb,  62  N.  H.  411,  and  in  Bishop  v.  Compa- 
ny, 62  N.  H.  456,  the  bringing  of  an  action  in 
a  wrong  county  was  not  regarded  as  such  a 
serious  defect  that  It  could  not  be  transfer- 


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CARFENTBB  v.  CABPXaTTEB 


633 


red  to  the  proper  county.  Tbe  Irre^larlty 
was  capable  of  being  obviated.  Seasonable 
procedure  Justified  such  action.  St.  Louis, 
etc.,  RaUroad  ▼.  McBrlde,  141  U.  S.  127,  U 
Sup.  Ct  882,  35  L.  £ld.  659.  If  tbe  caae  of 
Little  V.  Dickinson,  29  N.  H.  56,  is  in  conflict 
witb  these  cases,  it  must  be  regarded  as  over- 
ruled by  them.  Indeed,  in  the  present  case 
the  trial  which  lasted  many  days  was  held  in 
Merrimack  county  for  the  convenience  of  all 
parties  concerned,  without  objection  or  dls* 
sent  by  any  one. 

In  Kimball  y.  Flak,  39  N.  H.  110,  122,  123, 
75  Am.  Dec.  218,  proceedings  for  tbe  appoint- 
ment of  a  guardian  of  an  insane  person  were 
held  by  tbe  Judge  of  probate  upon  days  other 
than  those  specified  by  the  statute  for  tbe 
holding  of  the  probate  court,  and  in  holding 
that  the  acts  of  the  Judge  were  legal,  tbe 
court  said: 

"If  it  should  be  regarded  as  irregular  that 
business  should  be  done  by  tbe  Judge  of  probate 
on  days  not  appointed  by  tbe  law,  still  this  is 
hardly  to  be  regarded  as  a  matter  affecting  the 

i'nrisdiction  of  the  court  over  the  subject-matter. 
f  the  proceedings  would  be  set  aside  on  motion, 
seasonably  made  in  the  probate  court,  or  in 
this  court  on  a;>peal,  still  the  court  has  not  act- 
ed beyond  its  jurisdiction.  The  defect  is  not 
one  necessarily  fatal,  since  it  may  be  waived, 
or  released ;  and  consequently,  so  long  as  the 
I>roceedings  remain,  and  are  not  set  aside  on  mo- 
tion or  appeal,  all  parties  are  bound  by  them, 
and  they  cannot  be  treated  as  nullities,  when 
they  are  incidentally  brought  in  question." 

The  question  was  not  one  of  the  power  of 
the  court  to  act  upon  tbe  subject  presented, 
but  of  its  power  to  act  at  a  particular  time. 
It  was  a  question  of  procedure  and  not  of  Ju- 
risdiction. A  similar  illustration  is  furnish- 
ed by  Harris  v.  Parker,  66  N.  H.  324,  23  Atl. 
81,  where  it  was  claimed  that  the  appoint- 
ment of  a  commissioner  in  insolvency  was  un- 
authorized; but  the  appellants,  having  sub- 
mitted their  claims  to  him  with  a  full  knowl- 
edge of  the  facts,  were  held  to  have  waived 
their  right  to  object  to  the  appointment  made 
by  a  court  having  Jurisdiction  of  the  subject- 
matter.  See,  also.  State  v.  Blchmond,  26  N. 
H.  232,  243 ;  Bruce  v.  Cloutman,  45  N.  H.  37, 
84  Am.  Dec.  Ill;  Bowe  v.  Page,  54  N.  H. 
190,  196;  White  v.  White,  60  N.  H.  210; 
Lombard  v.  Company,  09  Atl.  295;  Sander- 
eon  V.  Nashua,  44  N.  H.  492. 

It  may  be  said  that  these  cases  are  not  di- 
rectly In  point  and  do  not  establish  the  rule 
that  a  view  may  be  properly  taken  In  an- 
other state.  They  show,  however,  that  many 
defects  of  a  jurisdictional  character  are  not 
fundamental,  since  they  may  be  obviated  by 
the  consent  or  the  waiver  of  the  parties,  and 
that  it  is  not  true  la  an  unqualified  sense 
that  Jurisdiction  may  not  be  acquired  by  con- 
sent, or  that  when  Jurisdiction  of  the  subject- 
matter  and  tbe  parties  is  once  acquired,  it 
may  be  lost  by  methods  of  procedure  in  the 
trial,  which  Justice  clearly  requires.  If,  In 
order  to  ascertain  the  truth  upon  a  material 
issue,  the  Judge  deemed  it  Important  that,  as 
tbe  trier  of  the  fact,  he  should  personally  in- 
spect tbe  relative  position  of  houses  and  oth- 


er physdcal  objects  located  in  Massachusetts, 
it  Is  not  perceived  why  it  should  be  held 
that  he  was  absolutely  precluded  from  doing 
BO,  because  the  case  was  pending  within  the 
territorial  limits  of  New  Hampshire.  If, 
while  trying  a  case  in  one  county  be  can  or- 
der the  Jury  to  take  a  view  in  another  county, 
or  take  a  view  himself  in  another  county  In  a 
case  tried  without  a  Jury — a  weU-recognlzed 
practice — ^why  Is  he  or  the  Jury  entirely  dis- 
qualified to  perform  the  same  act  across  the 
geographical  boundary  line  in  another  state? 
The  only  suggested  answer  is  that  it  is  in- 
herently impossible  for  a  court  to  try  cases 
beyond  the  territorial  limits  of  its  Jurisdic- 
tion. This  argument  is  based  upon  the  false 
assumption  that  a  view  is  equivalent  to  a  Ju- 
dicial trial,  while  it  is  apparent  that  the  trial 
is  in  fact  suspended  in  order  that  a  view  may 
be  taken.  The  presiding  Justice  does  not  oft- 
en accompany  tbe  Jury  on  a  view ;  no  sworn 
evidence  is  received,  and  no  arguments  are 
made. 

[18]  A  view,  therefore,  is  a  method  of  pro- 
cedure conducted  in  the  absence  of  the  court 
as  an  aid  In  the  ascertainment  of  the  truth 
from  the  physical  act  of  Inspection,  which 
does  not  require  the  exercise  of  the  Judicial 
powers  of  a  court  at  the  time  for  its  proper 
performance.  If  such  is  a  correct  exposition 
of  a  view  when  taken  within  the  state.  Its 
essential  character  remains  when  it  occurs 
without  the  state.  The  territorial  Jurisdic- 
tion of  the  court  is  as  fully  preserved  as  it  Is 
when  the  court  admits  the  testimony  of  a 
civil  engineer  as  to  physical  conditions  ob- 
served by  him  in  another  state,  or  where 
maps,  plans,  and  photographs  are  introduced 
for  the  inspection  of  the  jury.  If  for  any 
reason  such  a  view  is  an  irregularity.  It  may 
be  waived,  and  was  waived  in  this  case.  See 
authorities  supra. 

The  numerous  cases  referred  to  by  the  li- 
belant, which  it  is  claimed  sustain  his  con- 
tention, are  not  of  convincing  importance. 
The  most  of  them  relate  to  orders  made  be- 
yond tbe  limits  of  the  Jurisdiction  which  it 
was  held  were  of  a  Judicial  character,  and 
many  of  which,  upon  that  question  even, 
are  open  to  serious  doubt;  as,  for  instance, 
the  case  of  Ihinlap  t.  Bumph,  43  Okl.  491, 
143  Pac.  320,  where  it  was  held  that  a  Judge 
could  not  approve  and  sign  a  "case-made" 
while  he  was  In  Chicago,  although  the  par- 
ties agreed  that  it  was  correct,  and  that  it 
should  be  approved  by  him  in  that  dty;  in 
Price  V.  Bayless,  131  Ind.  437,  31  N.  B.  88, 
it  was  held  that  a  Judge  cannot  issue  a  re- 
straining order  while  he  is  in  Michigan ;  in 
Shaw  V.  Spencer,  67  Wash.  587, 107  Pac.  383, 
that  a  Judge  cannot  hear  a  motion  for  a  new 
trial  in  another  county;  in  Buchanan  v. 
Jones,  12  Oa.  612,  that  the  granting  of  a  writ 
of  certiorari  outside  the  state  is  a  void  act ; 
in  Adams  v.  Kyzer,  61  Miss.  407,  that  the 
chancellor  for  one  district  has  no  power  to 
hear  and  determine  a  motion  to  dissolve  an 
injunction  In  another;  In  Share  t.  Anderson, 


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(N.H 


7  Serg.  &  R.  (Pa.)  43,  10  Am.  Dec.  421,  that 
a  Justice  of  the  peace  cannot  take  the  ac- 
knowledgment of  a  deed  in  a  county  for 
which  he  was  not  appointed,  but  see  Odiorne 
V.  Slason,  9  N.  H.  24;  in  Ralney  v.  Rldge- 
way,  161  Ala.  532,  43  South.  843,  that  an  oi> 
der  of  a  judge  of  probate  extending  the  time 
for  signing  a  bill  of  exceptions  is  void  when 
made  outside  the  limits  of  his  jurisdiction; 
and  in  Lee  r.  Wells,  15  Gray  (Mass.)  459, 
that  a  judge  of  probate  cannot  issue  a  war- 
rant of  insolvency  while  in  another  county. 
Some  of  the  cases  depend  upon  a  construc- 
tion of  special  statutes.  Ex  parte  Parker,  6 
S.  0.  472;  Phillips  v.  Thralls,  26  Kan.  780; 
Ro<^ord  V.  Copplnger,  66  lU.  610.  The  case 
of  State  v.  Hawthorn,  134  La.  979,  64  South. 
873,  was  an  indictment  for  stealing  a  hull, 
and  it  was  deemed  important  by  both  parties 
that  the  jury  should  see  the  animal,  which  at 
the  time  of  the  trial  was  across  the  river  in 
the  state  of  Mississippi.  The  court  denied 
the  request  of  both  parties  for  a  view,  and 
upon  appeal  It  was  held  that  no  error  ap- 
peared, the  court  saying: 

"The  jury,  as  such,  could  not  have  exercised 
its  functions  in  another  state,  where  also  it 
would  have  been  beyond  the  supervision  and 
control  of  the  court." 

While  the  case  might  have  been  put  upon 
the  ground  that  the  trial  court  properly  ex- 
ercised its  discretlcm  in  denying  the  request, 
the  reason  given  in  the  opinion  is  not  con- 
vincing, since  the  only  function  the  Jury 
could  exercise  in  Mississippi  was  that  of  see- 
ing the  bull,  and  whether,  while  performing 
that  simple  act,  the  immediate  supervision  of 
the  court  would  I>e  necessary  is  not  appar- 
ent It  is  evidence  that  the  foregoing  cases 
have  little  bearing  upon  the  present  case,  in 
which  the  trial  court  did  not  make  any  Judi- 
cial orders  or  conduct  any  part  of  the  trial 
in  another  jurisdiction. 

It  might  be  interesting  to  compare  the  cases 
above  referred  to  with  other  cases  where  a 
more  liberal  practice  seems  to  prevail,  as, 
for  instance,  Bate  Refrigerating  Co.  v.  Gil- 
lette (C.  C.)  28  Fed.  673,  where  it  was  held  to 
be  the  universal  practice  to  permit  a  master 
to  act  outside  the  territorial  jurisdiction  of 
the  court  and  to  take  testimony  in  foreign 
countries.  This  was  followed  in  Consolidated 
Fastener  Co.  v.  Company  (C.  C.)  85  Fed.  04. 
In  People  v.  Thorn,  166  N.  Y.  286,  60  N.  EL 
947,  42  L.  R.  A.  368,  it  was  held  that  a  view 
by  a  jury  of  the  premises  where  the  crime 
was  committed  is  not  a  part  of  the  trial  lo 
such  a  sense;  that  it  could  not  be  taken  in 
the  absence  of  the  respondent  If  an  action 
Is  brought  in  a  wrong  county,  the  error  is 
not  fatal.  With  the  consent  of  the  parties 
the  trial  may  proceed.  Bishop  v.  Company, 
62  N.  H.  455.  But  see  Malins  v.  Dunrcven 
(1845)  9  Jur.  690,  which  is  not  a  satisfactory 
or  convincing  decision. 

If  it  were  determined  that  for  some  Juris- 
dictional reason  a  New  Hampshire  Jury  is 
disqualified  to  take  a  view  outside  the  state, 


and  that  all  subsequent  proceedings  in  tbe 
case  bef(»«  the  same  jury  are  absolutely 
void,  thoi^h  no  one  raises  an  objection  on 
that  ground,  mudi  surprise  would  undoubted- 
ly be  created  among  the  resident  members  of 
the  profession ;  for  the  practice  has  prevailed 
in  this  state  by  common  consent  and  approval 
for  many  years.  And  the  fact  that  the  ques- 
tion has  not  been  raised  or  discussed  in  any 
of  oar  reported  cases  is  cogent  evidence  that 
it  has  not  been  deemed  to  be  debatable.  State 
T.  Sawtelle,  66  N.  H.  488,  32  AU.  831,  was  an 
indictment  for  murder  in  the  first  degree,  in 
which  the  respondent  was  convicted  and  sen- 
tenced to  be  hanged.  Able  counsel  defmded 
him  and  took  and  argued  various  exceptions 
which  were  overruled.  The  trial  was  presided 
over  by  Chief  Justice  Doe  and  Associate  Jus- 
tice Bingham,  and  during  its  progress  the  jury 
were  sent  into  the  state  of  Maine  to  view 
localities,  which  it  was  claimed  were  material 
to  the  issue  on  trial.  No  one  seemed  to  have 
entertained  a  doubt  of  the  propriety  or  legali- 
ty of  the  proceeding;  no  objections  were  in- 
terposed to  it  If  it  had  been  understood  that 
tbe  fundamental  jurisdiction  of  the  court  was 
lost  or  suspended  in  consequence  of  the  view, 
it  is  unaccountable  that  in  a  case  of  such  im- 
portance that  objection  was  not  suggested  or 
entertained  by  any  one  connected  with  the 
trial.  Numerous  other  instances  have  been 
called  to  our  attention  where  juries  have 
taken  views  outside  the  state  with  the  con- 
sent of  the  parties;  In  fact  it  Is  not  inac- 
curate to  say  that  It  is  tbe  general  practice 
in  this  state,  whenever  the  court  deems  it 
useful  and  no  objection  is  interposed.  Wheth- 
er it  is  an  Irregularity  in  procedure  for  the 
reason  that  the  court  has  no  extraterritorial 
power  and  may  not  be  able  to  compel  the  par- 
ties and  the  officers  in  charge  of  the  jury  to 
go  outside  tbe  state  is  not  a  question  deter- 
minative of  its  power  to  try  tbe  case  and 
render  Judgment  therein;  often  an  extrater- 
ritorial view  has  been  taken  with  the  consent 
of  the  parties. 

"Where  a  court  has  jurisdiction  of  the  canse 
and  the  parties,  and  proceeds  erroneously,  tbe 
judgment,  notwithstanding  the  error,  is  binding 
until  it  is  vacated  or  reversed.  This  distinction 
is  well  settled."  Smith  v.  Knowlton,  11  N.  H. 
191. 

"When  it  is  once  made  to  appear  that  a  court 
has  jurisdiction  of  both  the  subject-matter  and 
of  the  parties,  the  judgment  which  it  pronoonc- 
es  must  be  held  conclusive  and  binding  upon  tbe 
parties  thereto  and  their  privies,  notwitnstand- 
ing  the  court  may  have  proceeded  irregularly,  or 
erred  in  its  amplication  of  the  law  of  tbe  case 
before  it  It  is  a  general  rule  that  irregulari- 
ties in  the  course  of  judicial  proceedings  ao  not 
render  them  void."    CooL  Con.  lAm.  587. 

"Irregularities,  which  is  but  another  word  for 
illegalities,  in  the  proceedings  in  an  action,  fui^ 
nisb  everywhere  ground  of  exception  to  the 
party  whose  rights  are  affected  by  uem,  and  tbe 
Irregular  proceedings  ere  at  once  set  aside,  on 
motion  of  the  proper  party.  But  it  is  »  gen- 
eral rule  that  if  a  party  who  has  ground  to  mo^e 
the  court  to  set  aside  any  process  or  proceed- 
ing of  any  kind  neglects  to  make  his  sppUcation 
in  a  reasonable  time,  after  the  facts  have  come 
to  his  knowledge,  he  is  deemed  to  waive  the 


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CARFENTBB  ▼.  OABPBNTSR 


636 


«xceptioii  by  the  delay,  and  will  be  foreTer  pre- 
'Cluded  to  make  the  objection  afterwards."  State 
V.  Richmond.  26  N.  H.  232.  243. 

See,  also,  Sanderson  t.  Nashua,  44  N.  H. 
492;  KimbaU  t.  Flsk,  39  N.  H.  110,  75  Am. 
Dec.  213;  State  t.  Buzzell,  59  N.  H.  65; 
State  ▼.  Albee,  61  N.  H.  423,  428,  60  Am.  Rep. 
325;  SUte  T.  Almy,  67  N.  H.  274,  280,  28  AtL 
372,  22  L.  R.  A.  744. 

"But  when  the  court  does  not  possess  the  legal 
power  to  decide  the  question  involved,  then  ju- 
risdiction cannot  be  acquired  by  consent." 
Brown,  Juris.  S  47;  Hobart  v.  Frost.  5  Duer 
(N.  T.)  672:  Smith  t.  Knowlton,  11  N.  H.  191 ; 
Morse  t.  Presby,  25  N.  H.  299;  Crowell  t. 
Londonderry,  63  N.  B.  42;  Warren  y.  Glynn, 
87  N.  H.  340;  Bickford  ▼.  Franconia,  73  N. 
H.  194,  60  AtL  98;  Hutdilnson  t.  Railway, 
78  N.  H.  271,  276,  60  AtL  1011;  Fowler  t. 
Brooks,  64  N.  H.  423,  13  AtL  417,  10  Am. 
St  Rep.  425;  State  t.  Shattuck,  45  K.  H.  205; 
Voorheee  y.  Bank,  10  Pet  449,  473,  9  L.  Ed. 
490;  1  Black.  Judg.,  f  244. 

[11]  As  it  appears  from  tbe  bill  of  excep- 
tions that  the  libelant  took  no  exception  to  tbe 
granting  of  the  libelee's  motion  that  the  court 
take  a  view  of  the  premises  in  Massachnsetts, 
he  waived  his  right  to  object  to  such  proce- 
dure, even  If  it  is  conceded  that  It  was  what 
Is  termed  an  "Irregularity."  And  as  the 
territorial  ]urisdlcti<»i  of  tlie  court  was  not 
lost  or  Impaired  by  the  view  In  such  a  sense 
that  no  exception  would  be  necessary  to  bring 
the  matter  to  the  attention  of  the  court,  the 
contention  of  the  libelant  upon  this  point  la 
unavailing. 

[12]  Whether  there  were  irregularities  at 
the  view  cannot  be  considered  at  this  stage 
of  the  case,  in  the  absence  of  any  objection 
and  the  exception  thereto.  It  haa  been  ar- 
gued that  certain  experiments  were  resorted 
to  at  the  view  which  were  Improper  and  ought 
not  to  have  been  made.  As  no  objection  was 
made  to  that  practice  until  after  the  decree 
was  entered,  the  argument  is  superfluous. 
But  upon  the  question  of  tbe  legality  of  ex- 
periments made  while  a  view  is  being  taken, 
see  Flint  v.  Company.  73  N.  H.  483,  485,  62 
Atl.  788;  Concord  Land,  etc.,  Co.  T.  Clough, 
70  N.  H.  627,  47  AtL  704.  The  claim  that  the 
libelant  had  no  opportunity  to  take  the  neces- 
sary exceptions  except  while  the  court  was 
in  Massachusetts  and  without  power  to  act 
Judicially  is  without  merit,  since  he  could 
have  ai)pliad  to  the  court  in  this  state  within 
a  reasonable  time  for  the  allowance  of  bis 
exception.  Ue  was  not  prevented  from  mak- 
ing the  attempt. 

Several  affidavits  of  persons  wlu>  had  ex- 
amined the  premises  at  Magnolia,  to  tbe  ef- 
fect it  was  physically  impossible  tliat  witness- 
es for  the  libelant  could  have  seen  what  they 
testified  they  saw,  were  Introduced  in  sup- 
port of  the  libelee's  motion  for  a  rehearing, 
and  it  appears  from  the  bill  of  exceptions  that 
the  court  considered  them  in  connection  with 
the  experiments  made  at  tbe  view.  But  it 
does  not  appear  that  they  were  considered  as 
independent  evidence.     So  far  as  tbe  view 


demonstrated  that  the  statements  were  true, 
it  is  not  apparent  what  substantial  error  was 
committed.    Moreover,  it  is.  to  be  noted  that: 

In  tbe  trial  of  divorce  cases  "the  court  has 
never  been  governed  by  strict  rules  of  evidence 
or  practice,  and  has  always  exercised  a  broad 
discretion,  as  well  in  the  admission  of  evidence 
as  in  other  respects."  Warner  y.  Warner,  69 
N.  H.  137,  138,  44  Atl.  908. 

In  accordance  with  tills  principle,  if  for  no 
other  reason,  the  exception  to  the  use  made 
of  the  affidavits  by  the  court  must  be  over- 
ruled. 

[13]  iSeveral  exceptions  to  the  evidence 
were  regularly  taken  at  the  original  trial,  and 
are  now  insisted  upon.  But  they  do  not  appear 
to  be  of  sufficient  Importance  to  warrant  ex- 
tended discussion,  especially  in  view  of  the 
fact  that  the  strict  rules  of  evidence  are  not 
applicable  to  divorce  trials.  Warner  v.  War- 
ner, suiNTa. 

It  appears  that  petitions  to  the  probate 
oonrt  tor  Carroll  county  have  been  filed  ask- 
ing tor  the  appointment  of  a  guardian  of  the 
minor  son  of  the  parties,  and  that  subsequent- 
ly the  libelee  filed  in  the  superior  court  a  pe- 
tition for  legal  separation  and  maintenance, 
and  for  the  custody  of  her  minor  son.  By 
agreement  of  tbe  parties  the  question  is  trans- 
ferred in  this  case  whether  tbe  probate  court 
has  authority  to  appoint  a  guardian  over  tbe 
minor  son  pending  a  decision  upon  the  petition 
filed  in  the  superior  court  No  orders  upon 
these  petitions  have  been  made  in  either  court 
Tbe  probate  court  has  not  appointed  a  guard- 
ian, nor  has  the  superior  court  appointed  a 
custodian.  That  the  probate  court  has  power 
generally  to  appoint  a  guardian  of  a  minor 
"whenever  there  Is  occasion,"  of  both  his 
person  and  estate  (P.  S.  c.  178,  H  1>  9  is  Qot 
denied;  nor  Is  it  denied  that  tlie  superior 
court  in  a  divorce  proceeding  may  appoint  a 
temporary  or  permanent  custodian  of  the 
child  of  the  parties  (P.  S.  c.  176,  |  4;  Laws 
1907,  a  81).  Whatever  distinction  there  may 
be  between  the  powers  and  duties  of  a  guard- 
ian and  those  of  a  custodian,  under  tbe  stat- 
utes, it  is  clear  that  it  was  the  purpose  of 
the  Legislature  to  authorize  the  superior 
court  to  appoint  tbe  latter  in  a  divorce  pro- 
ceeding. If  the  probate  court  should,  as  it 
probably  would,  appoint  the  same  person  as 
guardian,  the  contentions  of  the  parties  upon 
this  subject  would  doubtless  be  ended;  and 
tbe  same  result  would  be  reached  if  tbe  pro- 
bate court  should  appoint  a  guardian  deemed 
by  the  libelee  to  be  unfit  for  the  trust,  since 
upon  appeal  to  the  superior  court  the  matter 
of  guardianship  would  be  finally  determined 
as  well  as  tbe  question  of  custody.  In  this 
view  of  the  matter  it  Is  not  advisable  to  de- 
cide at  this  time  tbe  question,  which  is 
somewhat  Irregularly  presented,  as  it  may  be- 
come of  no  practical  importance  to  tbe  par- 
Ues. 

Exceptions  overruled;  libel  dismissed. 
All  concurred. 


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101  ATLANTIC  BBPORTEE 


(N.  H. 


(78  N.  H.  «7) 

THRASHER  t.  LAWRENCE  et  al. 

(Supreme  Court  of  New  Hampshire.     Sullivan. 

June  5, 1917.) 

Pabtnkbship  <s=»C8(1),  325(1)  —  Dissolu- 
tion—Rights OF  Pabtners. 
Where  a  partner  had  acquired  the  right  to 
buy  land  at  about  half  its  value,  and  his  ropart- 
ners  contributed  the  money  and  plaintiff  such 
right,  and  title  vras  taken  in  defendants'  names, 
they  held  it  as  trustees  for  the  partnership,  and, 
if  they  refused  to  sell  it  for  the  benefit  of  the 
firm,  on  a  dissolution  of  the  partnership,  a  trus- 
tee would  be  appointed  to  do  bo. 

Exception  from  Superior  Court,  Sullivan 
County;    Branch,  Judge. 

Bill  by  Benjamin  F.  Thrasher  against 
Summer  Lawrence  and  another.  Judgment 
for  plaintiff,  and  defendants  except.  Excep- 
tion overruled. 

BUI  In  equity  to  wind  up  a  partnership. 
Hearing  by  a  master,  who  found  that  the 
plaintiff  had  acquired  the  right  to  purchase 
two  adjoining  tracts  of  timber  land  for 
about  half  their  value,  and  entered  Into  an 
oral  agreement  of  partnership  with  the  de- 
fendants, "the  terms  of  which  were  that 
in  consideration  that  the  plaintiff  would 
share  with  the  defendants  the  benefit  of  his 
efforts  in  securing  the  lots,  and  would  look 
after  and  see  to  selling  the  same,  the  defend- 
ants were  to  furnish  the  money  to  pay  for 
the  lots,  to  pay  all  taxes  assessed  thereon, 
and  other  expense,  if  any,  not  Included  in 
what  plaintiff  was  to  do,  and,  when  the  lots 
were  sold,  defendants  were  to  receive  the 
amounts  advanced  In  payment  by  them  for 
the  lots,  taxes  and  other  expenses  not  In- 
cluded in  plaintiff's  undertaking,  together 
with  6  per  cent  Interest  thereon  from  the  date 
of  said  purchase  to  the  date  of  sale  or  other 
disposition  of  the  lots,  and  then  any  amount 
of  money  received  from  the  sale  of  the  lots 
after  taking  out  the  foregoing  items  of  pay- 
ments and  expenses  on  the  part  of  the  de- 
fendants was  to  be  divided  equally  between 
the  plaintiff  and  the  defendants.  •  •  • 
The  conveyances  were  made  to  said  defend-, 
ants  respectively,  t)ecause  they  advanced  the 
purchase  money,  and  to  secure  tbem  for  so 
doing."  The  court  ordered  Judgment  for  the 
plaintiff  on  the  master's  report,  and  the  de- 
fendants excepted.  Transferred  from  the 
November  term,  1916,  of  the  superior  court 

Frank  H.  Brown  and  Hurd  &  Kinney,  all 
'>f  Claremont,  for  plaintiff.  Martin  ft  Howe, 
of  Concord,  for  defendants. 

TOUXG,  J.  The  only  conclusion  that 
can  be  drawn  from  the  findings  of  the 
master  is  that  the  plaintiff  bought  the  land 
with  the  assets  of  the  partnership,  whi<A 
consisted  of  bis  right  to  buy  It  for  one-half 
its  actual  value  and  the  money  contributed 
by  the  defendants.  There  is  nothing  that 
can  be  construed  as  a  finding  that  the  de- 
fendants paid  for  the  land,  or  that  their 
■noney   paid    for   It    Since   the   land    wa? 


bought  with  partnership  assets,  the  defend- 
ants hold  It  as  trustees  for  the  partnership 
(Parker  v.  Bowles,  57  N.  H.  491,  495;  Mes- 
ser  v.  Messer,  59  N.  H.  375;  Foster  v.  Sar- 
gent, 72  N.  H.  170,  55  Atl.  423) ;  and,  as  they 
have  refused  to  dispose  of  It  for  the  bene- 
fit of  the  partnership,  the  plaintiff  is  enti- 
tled to  have  a  trustee  appointed,  who  will 
dispose  of  It  and  distribute  the  assets  in  ac- 
cordance with  the  order  of  the  court. 
Exception  overruled. 


(78  N.  H.  456) 

ROLLINS  V.  BROCK. 

(Supreme  (3ourt  of  New  Hampshire.     Carroll. 
June  30.  1917.) 

1.  Fbauob,  Statute  of  ©=>158(2)  —  Rehedt 
UNDBB  Contbact— Parol  Evidence. 

In  suit  for  specific  performance  of  a  parol 
agreement  whereby  plaintiff  took  a  deed  to  land, 
to  be  reconveyed  by  him  to  defendant  on  defend- 
ant giving  plaintiff  bis  note  secured  by  mortgage 
for  a  sum  advanced  by  plaintiff,  though  defend- 
ant could  not  be  compelled  to  accept  a  deed  and 
reconvey  it  to  plaintiff  in  mortgage,  plaintiff 
liaving  paid  the  owners  the  balance  of  the  pur- 
chase price  and  tendered  defendant  a  deed  in 
accordance  with  the  agreemeut,  and  defendant 
having  refuged  to  perform,  parol  testimony  of  the 
agreement  was  admissible  to  show  how  plaintiff 
held  the  farm. 

2.  Fbauds,  Statute  or  ^=>119(1)— Reuedies 
OF  Parties— Repudiation  of  Agreement. 

The  fact  that  defendant  in  a  suit  in  eqnity 
for  specific  performance  of  a  parol  agreement 
has  repudiated  bis  agreement  does  not  give  him 
any  greater  rights  than  he  would  have  had  if 
he  were  trying  to  enforce  it 
8.  Specific  Pebfobmancb  «=»127(2)  —  Relbe* 
— Stbict  Fobeclosubb  ob  Sale. 

In  suit  for  specific  performance  of  a  parol 
agreemeut,  whereby  on  conveyance  of  a  farm 
to  defendant,  reserving  the  standing  timber,  de- 
fendant was  to  give  plaintiff  a  note  for  $1,500 
secured  by  mortguge  on  the  farm,  if  there  should 
be  a  strict  foreclosure,  the  court  will  fix  a  rea- 
sonable time  wittkin  which  defendant  must  pay 
plaintiff  what  is  due  him,  but  if  there  should 
be  a  sale,  it  will  appoint  a  commissioner  to  sell 
the  farm  and  distribute  the  proceeds ;  the  decree 
in  either  form  fixing  the  exact  amount  due 
plaintiff. 

Exceptions  from  Superior  Court,  Carroll 
County ;   Chamberlain,  Judge. 

Suit  by  Ellsworth  H.  Rollins  against  Ste- 
phen Brodc.  From  a  decree  for  plaintiff,  de- 
fendant excepts.    Cose  discharged. 

BlU  In  equity  for  the  specific  performance 
of  an  oral  agreement  The  defendant  having 
bargained  with  the  Gllman  heirs  for  a  fkirm 
for  which  he  was  to  pay  $4,400,  and  having 
but  $1,000,  made  an  arrangement  with  the 
plaintiff  by  which  he  was  to  buy  the  timber 
on  the  farm  for  $1,900  and  loan  the  defend- 
ant the  further  sum  of  $1,500,  which  he  need- 
ed to  pay  for  the  farm,  the  loan  to  be  secur- 
ed by  a  mortgage  of  the  farm.  It  was  agreed 
that  the  defendant  should  pay  the  Oilman 
heirs  $1,000  and  direct  them  to  convey  it  to 
the  plaintiff,  who  should  pay  them  $3,400,  Ode 
balance  of  the  purchase  price,  and,  reserving 
the  standing  timber,  should  convey  the  farm  to 
the  defendant,  who  should  give  the  plaintifT 


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COMMONWEALTH  v.  LAPRIESTA 


637 


his  note  for  $1,500,  secured  by  a  mortgage 
of  tUe  farm.  The  defendant  paid  the  GUinan 
heirs  $1,000  and  directed  them  to  convey  the 
farm  to  the  plaintiff.  The  conveyance  was 
made  to  the  plaintiff,  who  thereupon  paid  the 
balance  of  the  purchase  price,  and  tendered 
a  deed  of  the  farm  to  the  defendant  In  ac- 
cordance with  the  terms  of  the  agreement; 
but  he  refused  to  accept  It,  and  to  give  the 
plaintiff  the  note  and  mortgage  for  $1,600  as 
agreed.  The  court  entered  up  a  decree  by 
the  terms  of  which  a  writ  of  possession  was 
to  issue  unless  the  defendant  elected  to  com- 
ply with  the  terms  of  the  agre«nent  on  or 
before  September  30,  1916,  and  the  defend- 
ant excepted.  He  also  excepted  to  the  ad- 
mission of  oral  testimony  to  show  the  agree- 
ment under  which  the  plaintiff  holds  the 
farm.  A  bill  of  exceptions  was  allowed  at 
the  May  term,  1016,  of  the  superior  court 

Leslie  P.  Snow,  of  Rochester,  and  Burt  R. 
Cooper,  of  Concord,  for  plaintiff.  William 
Wright,  of  Rochester,  and  Henry  D.  Xeaton, 
for  defendant. 

YOUNG,  J.  [1]  Notwithstanding  the  de- 
fendant cannot  be  compelled  to  accept  a  deed 
of  the  farm  and  reconvey  it  to  the  plaintiff  in 
mortgage  to  secure  the  payment  of  his  note 
for  $1,000,  the  evidence  excepted  to  was 
properly  admitted  for  the  purpose  of  showing 
how  the  plaintiff  holds  the  farm.  In  other 
words,  if  this  were  a  writ  of  entry  and  the 
plaintiff  Introduced  the  deed  conveying  the 
farm  to  him,  and  rested,  it  would  be  compe- 
tent for  the  defendant  to  Introduce  this  evi- 
dence for  the  purpose  of  showing  that  the 
plaintiff  held  the  farm  (not  including  the 
timber)  as  security  tor  a  loan  of  $1,500. 

[21  The  fact  the  defendant  has  repudiated 
his  agreement  does  not  give  him  any  greater 
rights  than  he  would  have  had  If  he  were 
trying  to  enforce  it;  consequentfy  the  plain- 
tiff is  entitled  to  a  decree  in  his  favor. 
Whether  it  should  take  the  form  of  a  strict 
foreclosure  or  of  a  sale  depends  on  which 
the  court  finds  would  be  equitable. 

[3]  If  the  court  finds  there  should  be  a 
strict  foreclosure,  it  will  fix  a  reasonable  time 
within  which  the  defendant  must  pay  the 
plaintiff  what  is  due  him.  If,  however,  it 
finds  that  there  should  be  a  sale  of  the  prop- 
erty, it  will  appoint  a  commissioner  to  sell 
the  farm  and  distribute  the  proceeds. 
Whichever  form  the  decree  takes,  it  should 
fix  the  exact  amount  due  the  plaintiff. 

Case  discharged.    All  concurred. 


(267  Fa.  28S) 

COMMONWEALTH  v.  LAPRIESTA'. 

(Supreme  Court  of  Pennsylvania.     March   19, 
1917.) 

1.  EoMiciDK      €=»340(1)— Appeal^Habicless 
Errob. 
In  a  mnrder  case,  the  fact  that  the  court 
mistakenly    charged   that   the   indictment   con- 
tained a.  eoant  for  manalaugbter  is  not  reversi- 


ble error,  where  accused  conM  have  been  con- 
victed of  that  offense  on  a  count  cbarfring  mur- 
der, and  the  trial  court  correctly  defined  man- 
slaughter. 

2.  Homicide  <8=>300(3)  —  Offense  —  Instruc- 
tion'. 
Wherp  the  accused  relied  on  self-defense,  re- 
quested instructions  that,  if  assault  on  him  was 
so  fierce  as  to  warrant  a  belief  that  he  could 
not  retreat  without  opening  himself  to  the  grav- 
est danger,  be  was  warranted  in  killing,  were 
properly  qnalified  by  statements  that  kiUinir 
should  be  the  last  resort,  and  that,  if  there  was 
no  other  way  of  resisting,  accused  was  warrant- 
ed in  killing  his  assailant. 

Appeal  from  Court  of  Oyer  and  Terminer, 
Xiackawanna  County. 

Anthony  Lapriesta  was  convicted  of  mur- 
der in  the  second  degree,  and  he  appeals.  Af-' 
firmed. 

The  defendant  was  indicted  for  the  mur- 
der of  Tony  Romeo  on  January  1,  1916.  The 
jury  found  him  guilty  of  murder  of  the  sec- 
ond degree,  for  which  he  was  sentenced'  to 
a  term  of  8  years  minimum  and  12  years 
maximum  In  the  state  penitentiary  for  the 
Eastern  district  of  Pennsylvania.  Defend- 
ant appealed. 

Errors  assigned  were  (1)  stating  to  the  Jury 
that  the  defendant  was  charged  in  the  in- 
dictment with  a  count  for  manslaughter,  and 
the  second,  third,  and  fourth  assignments, 
which  follow: 

Second.  The  learned  court  erred  In  Its 
answer  to  the  fourth  request  of  defendant 
for  instruction.  The  request  and  the  answer 
thereto  are  as  follows: 

"If  the  attack  on  Lapriesta  was  so  sudden  and 
violent  that  a  retreat  would  not  diminish  his 
danger,  he  could  kill  Romeo,  if  from  the  nature 
of  the  attack  there  was  reasonable  ground  to  be- 
lieve that  there  was  a  design  to  take  his  life, 
or  do  him  great  bodily  harm ;  and  in  so  doing 
he  would  be  guilty  of  no  crime  and  should  be 
acquitted. 

"Answer:  We  aflirm  that  point,  gentlemen  of 
the  jury,  if  you  find  from  the  evidence  that  there 
was  no  other  way  of  resisting,  and  the  kiUing 
came  from  the  resisting." 

Third.  The  learned  court  erred  in  Its  an- 
swer to  the  fifth  request  for  instruction  by 
defendant  The  request  and  the  answer 
thereto  are  as  follows,  to  wit: 

"If  the  assault  upon  Lapriesta  was  so  fierce 
as  to  justify  him  in  the  belief  that  he  could  not 
retreat  without  manifest  danger  of  his  life  or 
grievous  bodily  harm,  then,  in  his  defense,  he 
could  kill  Romeo  instantly,  and  in  so  doing  he 
would  be  guilty  of  no  crime  and  should  be  ac- 
quitted. 

"Answer:  We  affirm  that  point  if  there  were 
no  other  way  by  resisting  or  escaping.  Killing 
is  the  last  resort,  and,  if  there  were  any  other 
way,  it  was  the  duty  of  the  defendant  to  take 
that  way ;  but,  if  there  were  no  other  way_,  then 
he  would  be  justified,  even  it  it  resulted  in  the 
killing  of  Romeo." 

Fourth.  The  learned  court  erred  In  its  an- 
swer to  the  seventh  request  for  Instruction 
by  defendant  The  request  and  the  answer 
thereto  are  as  follows,  to  wit: 

"The  law  of  self-defense  is  pre-eminent,  and 
by  virtue  of  this  inherent  right  a  man  assaulted 
by  another,  under  circumstances  manifesting  an 
intention  to  take  Ufe  or  do  some  great  bodily 


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(Pa. 


harm,  may  immediately  resist  the  assailant,  even 
unto  death.  He  may  even,  under  circumstances 
o{  urgent  and  manifest  necessity,  anticipate  the 
blow  of  an  assailant  threatening  such  an  attack, 
and  kill  him  before  his  deadly  intention  is  fol- 
lowed by  an  actual  assault. 

"Answer:  That  is  rather  academic,  gentlemen 
of  the  jury,  because  there  lacks  in  this  case  that 
which  would  sustain  such  facts;  but  as  a  gen- 
eral proposition  we  affirm  it." 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, STEWART,  FRAZER,  and  WAL- 
KING, JJ. 

Clarence  Balentine  and  E.  T.  Philbln,  both 
of  Scranton,  for  appellant.  Frank  P.  Ben- 
jamin, First  Asst  Dlst  Atty.,  and  George  W. 
liazey,  Dlst  Atty.,  both  of  Scranton,  for 
the  Commonwealth. 

PER  CURIAM.  [1]  This  appeal  la  from 
the  Judgment  on  a  verdict  finding  appellant 
gnllty  of  murder  of  the  second  degree.  His 
first  complaint  is  that  the  court  erred  In 
diarglng  the  jury  that  the  Indictment  con- 
tained a  count  for  manslaughter.  This  did 
him  no  harm,  for  he  could  have  been  found 
guilty  of  that  offense  on  the  count  charging 
murder,  and  It  Is  admitted  that  the  learned 
trial  Judge  correctly  defined  manslaughter 
in  his  Instructions  to  the  Jury. 

[2]  The  second,  third,  and  fourth  assign- 
ments charge  errors  In  answers  to  points  sub- 
mitted by  the  defaidant.  Each  was  afiSrm- 
ed  with  a  Qualification  free  from  error. 

Judgment  afllrmed. 


(!57  Pa.  SOE) 
POLUSKIEWICZ  V.  PHinADEtPHIA  ft 
READING  COAL  &  IRON  CO. 

(Supreme  0>urt  ot  Pennsylvania.     March  23, 
1917.) 

Maoteb  and  Sebvant  ^=»417(7)— Workmkn's 
Compensation  Act — Boabd — Findings  of. 
Under  Workmen's  Compensation  Act  June 
2,  1915  (P.  L.  736)  }  409,  declaring  that  find- 
ings of  fact  shall  be  final  unless  the  board  shall 
allow  an  appeal  therefrom  as  hereinafter  pro- 
vided, and  that  the  board's  findings  of  fact  shall 
be  in  all  cases  final,  findings  of  fact  by  the  ref- 
eree, approved  by  the  board,  cannot  be  disturbed 
on  appeal. 

Appeal  from  Court  of  Common  Pleas, 
Schuylkill  County. 

Proceedings  by  Frances  Polusklewicz 
against  the  Philadelphia  ft  Reading  Coal  & 
Iron  Company,  for  compensation  under  the 
W^orkmen's  Compensation  Act  The  referee 
allowed  compensation,  which  on  appeal  was 
sustained  by  the  Compensation  Board.  From 
an  order  dismissing  the  appeal  from  the 
board,  defendant  appeals.    Appeal  dismissed. 

Bechtel,  P.  J.,  filed  the  following  opinion 
in  the  court  of  common  pleas: 

This  case  comes  before  us  on  an  appeal  taken 
from  the  Workmen's  Compensation  Board  by 
the  defendant.  The  appellant  files  six  excep- 
tions to  the  decision  of  the  board.  These  six 
exceptions  involve  but  one  question,  whether  or 
not  the  facts  warranted  the  findings  by  the  ref- 
eree and  the  compensation  board. 


The  referee  found  the  facts  against  the  de- 
fendant and  allowed  compensation.  The  defend- 
ant thereupon  appealed  to  the  compensation 
board,  which  sustained  the  findings  of  the  ref- 
eree. It  thereupon  took  an  appeal  to  this  court 
The  plaintiff  claims  that  the  court  has  no  juris- 
diction to  reverse  the  findings  of  fact  made  by 
the  referee  and  the  compensation  board.  Even 
if  we  had  jurisdiction  to  revise  the  findings  as 
made  in  this  case,  we  feel,  in  the  absence  of 
any  express  provision  in  the  act  of  assembly, 
that  our  actions  should  be  governed  by  the  rules 
laid  down  by  our  higher  courts  relative  to  the 
findings  of  fsct  in  equity  cases.  It  is  a  well- 
settled  doctrine  that  in  the  absence  of  fraud  or 
a  gross  abuse  of  discretion  the  appellate  court 
will  not  reverse  the  findings  of  fact  by  a  chan- 
cellor, and  it  has  been  held  that  these  findings 
should  be  sustained  if  there  be  any  evidence  to 
justit^  such  action.  We  would  hesitate  to  go 
that  far  with  this  record. 

Section  409  of  the  Compensation  Act  of  Jane 
2,  1916,  P.  Ll  736,  provides:  "A  referee's  find- 
ing of  fact  shall  be  final  unless  the  board  shall 
allow  an  appeal  therefrom  as  hereinafter  pro- 
vided. The  board's  findings  of  fact  shall  in 
all  cases  be  final.  From  the  referee's  decision 
on  any  question  of  law  an  appeal  may  be  taken 
to  the  board  and  from  any  decision  of  the  board 
on  a  question  of  law  an  appeal  may  be  taken  to 
the  courts  as  herein  provided." 

Section  419  provides  for  an  appeal  by  the  ag- 
grieved party  to  the  board  on  two  grounds,  the 
second  of  which  is  "that  the  findings  of  fact 
and  ruling  or  disallowance  of  compenaatiim  were 
unwarranted  by  the  evidence,"  and  section  421 
defines  the  powers  of  the  board  relative  to  such 
appeals.  Section  425  provides  for  the  method 
of  hearing  appeals  taken  from  the  board  to  the 
courts,  but  distinctly  limits  such  appeals  to 
questions  on  matters  of  law.  We  nowhere  in 
the  act  find  any  express  provision  authorizing 
the  courts  to  reverse  the  findings  of  fact  of  the 
compensation  board.  It  is  very  significsnt  that 
th«  act  provides  that  the  board's  finding  shall 
be  final  m  all  cases,  and  that  in  the  section  pro- 
viding for  an  appeal  to  the  courts  distinctly 
states  on  questions  involving  matters  of  law. 
We  do  not  thiuk  that  it  was  the  intention  of 
the  Legislature,  nor  do  we  think  that  the  plain 
language  of  the  act  gives  to  the  courts  the  right 
to  reverse  the  findings  of  fact  of  the  compensa- 
tion board,  lliat  is  the  one  question  involved 
in  this  case. 

The  court  dismissed  the  appeal.  Defend- 
ant appealed. 

Argued  before  BROWN,  O.  J.,  and  MBS- 
TREZAT,  POTTER,  FRAZBR,  and  WAL- 
LING, JJ. 

George  Oowen  Parry,  of  Philadelphia,  and 
John  F.  Whalen  and  George  Ellis,  both  of 
PottsviUe,  for  appellant.  M.  A.  Kllker,  of 
Glrardvllle,  for  appellee. 

PER  CURIAM.  SecUon  409  of  the  act  of 
June  2,  1916  (P.  L.  736),  Is  as  foUows: 

"A  referee's  findings  of  fact  shall  be  final,  on- 
less  the  board  shall  allow  an  appeal  therefrom 
as  hereinafter  provided.  The  board's  findings 
of  fact  shall  in  all  cases  be  final.  From  the 
referee's  decision  on  any  question  of  law  an  ap- 
peal may  be  taken  to  the  board,  and  from  any 
decision  of  the  board  on  a  question  of  law  an 
appeal  vauf  be  taken  to  the  courts  as  herein- 
after provided." 

Referees  and  the  Workmen's  C^mpensatloa 
Board  must  realize  the  great  responslblllt7 
Imposed  upon  them  by  the  provision  that 


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LEBANON  VAIiliET  CXSKSOL.  W.  S.  CO.  T.  COMMONWEALTH  T.  00. 


639 


their  findings  of  fact  are  final.  If  they  err 
In  this  respect,  courts  can  grant  no  relief  to 
parties  who  may  be  wronged.  In  the  light 
of  the  plain  words  of  the  statute,  the  learned 
court  below  was  of  the  correct  opinion  that 
it  could  not  disturb  the  facts  found  by  the 
compensation  board. 
Appeal  dismissed  at  appellant's  costs. 


(2S7  Pa.  252) 
HUGEK  T. 


COATESVILLB  BOIUEK 
WORKS. 


(Sapreme  Court  of  Pennsylvania.     March  19, 
191T.) 

Mastteb  and  Sebvant  4=9106(1)— InxDBiES  to. 

SeB  VA  NT— NbGLIQEN  CE. 

While  a  master  who  requires  a  servant  to 
labor  with  improper  tools  is  necessarily  liable 
unless  the  danger  was  so  imminent  that  a  rea- 
•onably  prudent  person  would  have  refused,  a 
servant  encaged  in  puttinf;  a  head  on  a  steel 
boiler  cannot  recover  for  injuries  resulting  from 
bdng  struck  with  a  splinter  of  steel  from  the 
pin,  though  the  foreman,  over  objection,  required 
mm  to  use  a  heavier  hammer  than  ordinarily 
used ;  it  not  appearing  that  the  hammer  or  pin 
was  defective. 

Appeal  from  Ck>urt  of  Common  Pleas, 
Chester  County. 

Action  by  Tony  D.  Rnger  against  the 
Coatesville  Boiler  Works.  From  an  order 
refusing  to  take  off  a  nonsuit,  plaintiff  ap- 
peals.    Affirmed. 

Hause,  J.,  filed  the  following  opinion  sur 
plaintiff's  motion  to  take  off  the  nonsuit  in 
the  court  of  common  pleas: 

On  Jaly  2,  1015,  plaintiff,  an  employi  of  the 
defendant,  was  injured  while  engaged  in  putting 
a  head  in  a  large  steel  boiler.  To  accomplish 
this  work  he  was  required  to  use  steel  pins  and 
hammers  of  different  weights.  On  the  day  nam- 
ed, while  performing  the  work  assigned  to  him 
and  finding  the  boiler  head  slightly  large  for  the 
boiler  in  which  it  was  to  be  placed,  one  Crouse, 
his  foreman,  directed  him  to  drive  steel  pins  be- 
tween tbe  rim  of  the  boiler  bead  and  the  boiler, 
and,  as  this  could  not  be  accomplished  by  the 
use  of  a  small  hammer,  he  directed  him  to  use, 
and  he  did  use,  a  larger  one.  This  was  the 
usual  and  customary  manner  of  performing  this 
work ;  the  plaintiff  was  entirely  familiar  with 
tbe  metbod  and  tbe  operation,  and  had  headed 
many  boilers,  prior  to  the  day  of  the  accident, 
in  the  same  manner,  except  that  he  had  not 
theretofore  used  a  hammer  so  heavy  as  the  one  he 
was  using  when  the  accident  happened.  When 
Instructed  to  use  a  larger  hammer,  he  demurred, 
for  some  reason  which  did  not  appear  at  the 
trial,  whereupon  the  foreman  told  him,  in  sub- 
stance, that  if  he  did  not  propose  to  do  the 
work  with  the  tool  he  suggested,  he  should  go 
home.  While  striking  one  of  the  steel  pins  with 
the  larger  hammer,  a  small  splinter  from  the 
pin  struck  him  in  the  eye,  and  later  the  eye 
was  removed.  He  seeks  to  recover  damages  for 
his  injury  and  bases  his  right  to  recover  on  two 
grounds:  First,  because  the  defendant  was  neg- 
ligent "in  coercing  and  requiring  him"  to  do 
the  work  on  pain  of  bein^  discharged ;  second, 
because  tbe  defendant  furnished  for  the  work  im- 
proper tools  and  pins,  the  latter  being  defective 
and  were  liable  to  splinter  when  struck  with  a 
hammer. 

An  employer  is  not  guilty  of  negligence  merely 
because  ne  insists  that  his  employ^  shall  work. 
If,  however,  he  or  his  toreman  for  him  requires 
the  employ^  to  labor  with  improper  and  defpc- 


tive  tools  and  apjpliances  or  in  unsafe  places  and 
injury  results,  liability  necessarily  follows,  un- 
less Uie  danger  was  so  imminent  that  a  reason- 
iililv  prudent  person  would  have  avoided  it.  Ijce 
V.  Dobson,  21T  Pa.  349,  66  Atl.  567;  Porter 
V.  Wilson,  62  Pa.  Super.  Ct.  339;  Ignash  v. 
Murphy,  Cook  &  Co.,  249  Pa.  223,  94  Atl.  1058; 
Broski  v.  Phoenix  Iron  Co.,  82  Pa.  Super.  Ct. 
305. 

Tbe  difBculty  with  the  plaintiPs  case,  how- 
ever, was  that  there  was  not  a  scintilla  of  tes- 
timony to  show  that  either  the  steel  pin  or  tbe 
hammer  was  imperfect.  Nor  was  there  a  sug- 
gestion that  the  use  of  a  heavier  hammer  to  ac- 
complish the  object  sought  was  not  entirely 
proper.  The  plaintiff  lost  his  eye  as  the  result 
of  an  accident  wholly  unforeseen  and  against 
which,  so  far  as  tbe  testimony  shows,  no  human 
foresight  could  have  provided. 

The  trial  judge  entered  a  compulsory  non- 
suit which  the  court  in  banc  subsequently 
refused  to  take  off. 

Argaed  before  BROWN,  0.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKEB,  and 
WALLING,  JJ. 

W.  S.  Harris,  of  West  Chester,  for  ap- 
pellant. A.  M.  Holding,  of  West  Chester, 
for  appellee. 

PER  CURIAM.  This  judgment  is  affirmed 
on  the  opinion  of  the  learned  court  below 
denying  the  motion  to  take  off  the  nonsuit. 


(2S7  Fa.  284) 

LEBANON    VALLEY    CONSOL.     WATER 

SUPPLY  CO.  et  al.  ▼.  COMMON- 

WEAI/TH  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.    March  19, 
1917.) 

Equity  ^=9322— Service  of  Process— EJxtba- 

tebbitobiai,  service. 
Act  April  6,  1859  »P.  L.  387),  providing  for 
extraterritorial  service  where  suit  concerns  any 
charge,  lien,  judgment,  mortgage,  or  incum- 
brance on  lands  within  the  jurisdiction  of  the 
court,  does  not,  in  an  action  to  compel  delivery 
of  bonds  secured  by  a  mortgage  on  lands  in  the 
county  where  instituted,  warrant  service  on  de- 
fendant in  a  different  county. 

Appeal  from  Court  of  Comm<m  Pleas,  Leb- 
anon County. 

Bill  by  the  Lebanon  Valley  Consolidated 
Water  Supply  Company,  with  D.  Oring,  as 
Intervening  bondholder,  against  the  Common- 
wealth Trust  Company.  From  an  order  set- 
ting aside  service,  complainants  appeal.  Dis- 
missed. 

The  facts  appear  in  the  following  opinion 
by  Henry,  P.  J.,  setting  aside  the  service 
of  the  bill: 

The  defendant  in  the  above-entitled  case  has 
moved  to  set  aside  the  service  of  the  bill  and 
vacate  the  order  upon  wUch  the  service  was 
made,  for  the  reason  that  service  was  made  up- 
on the  defendant  in  Dauphin  county.  The  but 
in  equity  filed  in  this  case  asks  that  the  defend- 
ant be  ordered  and  directed  to  deliver  certain 
bonds  in  its  hands  to  the  plaintiff.  These  bonds 
are  secured  by  a  mortgage  upon  lands  in  Leba- 
non county,  under  which  the  defendant  is  the 
trustee. 

It  is  conceded  by  the  plaintiff  that,  unless  the 
service  as  made  is  authorized  by  that  part  of 


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640 


101  ATLANTIC  BEPORTBB 


(Pa. 


the  act  of  April  6,  1859  (P.  L.  387>,  which  pro- 
vides for  extraterritorial  service  where  the  suit 
concerns  "any  charge,  lien,  judgment,  mortgage, 
or  incumbrance"  upon  lands,  tenements,  or  here- 
ditaments within  the  jurisdiction  of  the  court 
directing  the  service,  the  motion  of  the  defend- 
ant must  prevail.  The  simple  question  is  then 
raised  whether  the  suit  concerns  any  charge, 
lien,  judement,  mortgage,  or  incumbrance  upon 
land  in  I^ebaDon  county.  The  purpose  of  the 
bill  is  to  compel  the  defendant  to  certify  and 
deliver  to  plaintiffs  certain  bonds  in  its  hands 
secured  by  a  mortgage  given  by  the  plaintiff  to 
the  defendant  as  trustee.  Unless  there  is  some 
reason  to  the  contrary,  the  plaintiff  is  entitled 
to  the  bonds.  Should  there  be  some  good  reason 
for  the  withholding  of  the  bonds,  it  must  be 
owing  to  some  default  upon  the  part  of  the 
plaintiff.  The  lien  of  the  mortgage  stands  unaf- 
fected by  the  determinntion  of  this  question,  ex- 
cept in  as  far  as  the  other  bondholders  under  the 
mortgage  may  have  an  increased  value  attach- 
ing to  their  bonds  as  long  as  a  part  of  the  bonds 
are  unissued  ;  but  to  say  that  because  the  bonds 
are  secured  by  a  mortgage,  or  because  the  value 
of  outstanding  bonds  may  be  affected  as  long  as 
a  part  of  the  bonds  are  unissued,  their  delivery 
or  nondelivery  concerns  the  lien  of  the  mort- 

gage  which  is  given  to  secure  the  bonds,  is  plac- 
ig  a  strained  construction  upon  the  plain  lan- 
guage of  the  said  act  of  assembly.  The  suit  con- 
cerns the  bonds  alone  and  not  the  mortfrage  or 
the  lien  of  the  mortgage.  We  can  only  conclude 
that  the  service  is  not  good  under  the  proviaiona 
of  the  act  of  assembly  of  April  6,  1S50. 

The  lower  court  set  aside  the  service  of 
the  bill.    Plaintiffs  appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAIi- 
LING,  JJ. 

William  H.  Sponsler,  of  New  Bloomfleld, 
E.  B.  McCurdy,  of  Lebanon,  and  Geo.  R. 
Helsey,  of  Ilarrisbiirg,  for  appellant.  0.  H. 
Bergner,  of  Harrisburg,  and  Howard  C. 
Shirk,  of  Lebanon,  for  appellee. 

PER  CURIAM.  This  appeal  is  dismissed, 
at  appellants'  costs,  on  the  opinion  of  the 
court  below  setting  aside  the  service  of  the 
bill. 


(257  Pa.  238) 

HANIGAN  V.  PHILADELPHIA  &  R.  R.  QO. 

(Supreme  CJourt  of  Pennsylvania.     March  19, 
1917.) 

Railboads  €=>327(8)— Cbossing  Coixision— 
Neouoenoe  —  Failube  to  Look  and  Lis- 
ten. 
Where  plaintiff's  decedent,  had  he  stopped, 
looked,  and  listened  at  a  point  20  feet  from  the 
railroad  track,  would  have  had  an  unobstruct- 
ed view  from  900  to  1,800  feet  in  the  direction 
from  which  the  train  approached,  but  proceeded 
to  cross  ttie  track  with  his  team,  in  consequence 
of  which  be  was  struck,  he  was  guilty  ui  con- 
tributory   negligence,   justifying    a   compulsory 
nonsuit. 

.  Appeal    from    Court    of    Common    Fleas, 
Bucks  County. 

Trespass  by  Lydia  A.  Hanlgan  against  the 
Philadelphia  &  Reading  Railway  Company 
to  recover  damages  for  the  death  of  her  hus- 
band. From  an  order  refusing  to  take  off  a 
nonsuit,  plaintiff  appeals.    Affirmed. 


The  facts  appear  in  the  following  opinion 
of  Ryan,  P.  J.,  sur  plaintiffs  motion  to 
take  off  the  nonsuit: 

The  plaintiff  brings  this  action  to  recover  dam- 
ages for  the  death  of  her  husband,  who  was 
killed  at  a  grade  crossing  at  Siielly,  in  this 
county,  by  a  train  of  the  defendant  company. 
At  the  plai:e  of  the  accident  the  double  track 
of  the  defendant  runs  approximately  north  and 
south  and  the  highway  crosses  it  nearly  at  right 
angles.  The  accident  occurred  about  7:40  in 
the  evening  of  July  4,  1913.  The  deceased  at 
the  time  was  driving  two  horses  geared  to  a 
market  wagon,  the  side  curtains  of  which  were 
down.  With  a  boarder  at  his  house  named 
Gillick,  he  occupied  the  only  seat  in  the  con- 
veyance. Back  of  them,  on  the  floor  of  the 
vehicle,  were  seated  bis  sister,  Mrs.  Hannah 
Costello,  with  her  daughters,  Giertrude,  Frances, 
and  Kitty,  her  little  son,  £>dmund,  and  a  child 
named  Ed.  Kane.  The  party  was  coming  to 
Shelly  from  the  deceased's  farm,  which  was  about 
a  mile  distant  to  the  eastward  of  the  point  of  ac- 
cident. The  deceased  had  lived  on  the  farm 
nearly  seven  years.  Approaching  the  crossing 
from  this  direction  the  highway  descends  a 
steep  hill,  but  from  the  foot  of  the  hill  to  the 
crossing  it  is  a  level  road.  About  40  feet  from 
the  crossing  on  the  right  is  a  cigar  factory,  jnst 
bc.vond  which,  toward  the  crossing,  the  deceased 
stopped  the  team,  leaned  forward,  and  looked 
and  listened.  At  this  point,  however,  he  could 
not  see  the  track  to  the  north,  as  the  view  was 
obscured  by  a  growth  of  bushes  along  the  top 
of  the  bank  of  the  cut  of  4  or  5  feet  in  depth, 
through  which  the  railroad  is  constructed. 
From  that  point  to  a  point  beyond  the  bank  of 
the  cut,  about  20  feet  from  tho  first  track,  the 
view  from  the  highway  to  the  north  is  ob- 
structed. At  that  point  a  dear  and  unobstruct- 
ed view  of  the  track  northward  to  a  curve  to 
the  east  could  be  had.  The  distance  to  this 
curve  and  the  extent  of  the  unobstructed  view 
was  estimated  by  witnesses  at  from  400  to  &00 
yards  to  a  quarter  of  a  mile.  Whether  tix«  de- 
ceased st(q)ped  a  second  time  at  the  point  whero 
he  bad  an  nnotntructed  view  of  the  track  is 
not  dear. 

Gertrude  Costello  testified  in  chief  that  he 
stopped,  and  looked  up  and  down  the  tracks, 
"right   before   he  came  to   the  crossing,   right 
below  the  cigar  factory,     •     *     •     40  feet  from 
the  trades."     She  eaid  (Testimony,  p.  39):    "He 
looked  up  and  down  the  track  with  the  team 
and  nothing  came,  so  we  went  on  and  we  were 
just  past  the  first  track  when  we  were  hit,  aboat 
in  the  middle  of  the  other  track."     Mrs.  Ade- 
line  Bauck  stated   that  she  was  seated   upon 
a   hotel    porch   opposite  the   station,   near   the 
crossing,  and  saw  the  team  come  down  the  hill. 
In  chief  she  testified  (page  64):   "I  was  sitting 
in  my  rocking  chair  on  the  porch,  and  all  at 
once  I  saw  the  wagon  coming  down  this  hilL 
and  I  saw  a  man  holding  his  line  back,  and 
stop,  and  look  up  and  down.    Of  course,  where 
I  sat,  you  can  see  everybody  that  comes  down 
that  hill,  and  I  saw  him  until  he  got  to  the  sta- 
tion, and  I  heard  the  train  come  and  toot  toot,' 
and   when   the  acddent   happened   I  beard  no 
bell,  no  whistle."     On  cross-examination  (page 
73)    she    testified    inter    alia   as   follows:    "Q. 
When  did  he  stop?    A.  When  he  got  down  the 
hilL    Q.  At  the  botton  of  the  hiU?    A.  Yes.    Q. 
As  soon  as  he  struck  the  level?     A.  Yes,  sir. 
Q.  He  didn't  stop  again,  did  ho?    A.  He  stop- 
ped, you  know;    he  looked  up  and  down.    Q. 
Was  he  sittin)^  on  the  seat  of  the  wagon?    A. 
Yes.    Q.  He  didn't  stop  again  after  stopping  at 
the  bottom  of  the  hill?     A.  He  stopped  right 
there  at  the  station.     Q.  You  say  he  stopped 
at  the  bottom  of  the  hill?     A.  That  is  near 
there.     •     •     •     Q.  Did  he  stop  again— stop 
his  liorse?    That  is  the  last  time  he  stopped  un- 


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Pa.) 


COMMONWEALTH  v.  HAINES 


641 


til  he  was  atraA.  U  that  It?  A.  Yea.  Q. 
About  a  quarter  of  a  square  away.  A.  Yos. 
<J.  Away  from  the  track?  A.  Yes;  then  he 
stopped,  and  just  held  his  lines,  and  locked 
up  and  down  the  tracks,  and  they  were  clear, 
And  be  went  over.  Q.  But  he  only  stopped  one 
time  altogether?  A.  Yes;  it  is  just  as  good  as 
stopped.  Q.  He  stopped  once?  A  If  you  say 
so.  Q.  Do  yon  say  so?  A.  I  can't  say  it  over 
again.  By  the  Court:  Did  he  stop  more  than 
once?  A.  He  stopped  once,  his  horses;  then 
right  near  the  train  he  stopped  again,  just  a 
second,  and  he  looked  up  and  down  to  see  it 
the  tracks  were  clear;  then  he  went  across  the 
tracks,  and  the  train  came  around  the  bend." 

Whether  the  deceased  did  stop  a  second  time 
or  not,  the  fact  is  clear  that  there  was  a  point 
20  fe«t  from  the  first  or  north-bound  track  where 
there  was  an  unobstructed  view  of  both  tracks 
up  to  the  carve.  If  the  deceased  had  stopped 
and  looked  here,  he  could  have  seen  a  train  ap- 
proaching from  the  north  for  a  distance  of  from 
about  900  to  about  1,780  feet.  He  drove  across 
the  first  and  upon  Uie  second  track,  when  the 
team  was  struck  by  a  south-bound  train.  The 
wagon  was  demolished,  and  the  deceased  and 
some  of  tiie  other  occupants  of  the  conveyance 
were  kiUed.  The  horses  also  were  killed.  The 
deceased's  duty  under  the  circumstances  is  thus 
stated  in  Haas  v.  Northern  Central  Ry.  Co.,  49 
Pa.  Super.  Ct  107,  109,  following  a  lony  line  of 
decisions  of  the  Supreme  Court  of  this  state: 
"The  rule  that  the  traveler  about  to  cross  a 
railroad  track  must  stop,  look,  and  listen  is  nn 
absolute  and  unbending  rule  of  law,  founded  on 
public  policy,  for  the  protection  oif  passengers 
in  railroad  trains  as  much  as  travelers  on  the 
common  highway,  and  such  stopping,  looking, 
and  listening  must  not  be  merely  nominal  or 
perfunctory,  but  substantlnl,  careful,  and  per- 
formed in  good  faith,  with  the  accomplishment 
of  the  end  in  view.  Ho  must  stop  and  look 
where  be  can  see,  and  will  not  be  allowed  to 
say  that  he  did  so,  when  the  circumstances 
make  It  plain  that  by  the  proper  using  of  his 
common  sense  he  must  have  seen  his  danger." 

There  is  no  question  in  the  case  at  bar  of 
what  was  the  proper  place  to  stop.  It  is  clear 
from  the  testimony  of  the  plaintiffs  witnesses 
that  the  deceased  stopped  where  he  could  not 
see.  It  is  also  clear  that  there  was  a  point, 
about  20  feet  from  the  first  track,  beyond  the 
bank  of  tho  cut,  which  was  surmounted  by  bush- 
es, where  an  unobstructed  view  in  the  direction 
from  which  the  train  came  could  be  had.  In 
Carroll  v.  Penna.  Railroad  Co.,  12  Wkly.  Notes 
Cas.  348,  349,  the  Supreme  Court  says:  "It 
is  in  vain  for  a  man  to  say  that  he  looked  and 
listened,  if,  in  despite  of  what  his  eyes  and 
ears  must  have  told  him,  he  walked  directly  in 
front  of  a  moving  locomotive."  It  is  equally 
vain  for  others  to  say  so,  where  his  actions  in- 
dicate that  he  did  not  see  the  approaching  train. 
If,  in  the  case  at  bar,  tho  deceased  had  looked 
and  listened  at  the  point  20  feet  from  the 
track,  where  the  view  was  unobstructed,  he  could 
have  both  seen  and  heard  the  approach  of  tho 
train  that  collided  with  his  team.  To  drive 
in  front  of  an  approachin«r  train,  which  could 
have  been  seen  and  heard  from  a  place  of  safety 
in  time  to  avoid  a  collision,  is  negligencn  per 
se.  In  Pennsylvania  R.  R.  Co,  v.  Beale,  73 
Pa.  604,  500.  13  Am.  Rep.  753,  Sharswood,  J., 
declared:  "There  never  was  a  more  important 
principle  settled  than  that  the  fact  of  tho  fnil- 
nre  to  stop  immediately  before  crossing  a  rail- 
road track  is  not  merely  evidence  of  negligence 
for  the  jury,  but  negligence  per  se  and  a  ques- 
tion for  the  court  North  Pennsylvania  R.  R. 
Co.  V.  Heileman,  49  Pa.  60  [88  Am.  Dec.  482]." 
"Where  there  is  a  doubt  as  to  the  proper  place 
to  stop,  look,  and  listen,  as  a  general  rule  such 
question  will  be  referred  to  the  jury.  But  where 
there  is  no  such  doubt,  where  the  deceased  stop- 


ped at  a  point  where  he  could  not  see,  it  is  for 
the  court  to  determine  whether  it  was  a  proper 
place."  Urias  t.  Penna.  R.  R.  Co.,  162  Pa. 
326,  25  Atl.  566.  This  rule  is  quoted  and  ap- 
plied in  Kinter  v.  R.  R.  Co.,  204  Pa.  497,  54 
AU.  276,  93  Am.  St.  Rep.  795.  While  it  is  said 
that  the  rule  laid  down  in  Carroll  v.  Penna. 
Railroad  Company,  supra,  applies  to  clear  cases 
only,  we  consider  this  sodi  a  case,  and  conclude 
that  the  nonsuit  was  properly  entered. 

The  trial  Judge  entered  a  compulsory  non- 
suit, which  the  court  subsequently  refused  to 
take  off.    Plaintiff  appealed. 

Argued  before  BBOWIN,  0.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKEE,  and 
WAUjING,  JJ. 

Hugh  Roberts,  of  Philadelphia,  for  appel- 
lant. Harman  Yerkes,  of  Pblladelphla,  fot 
appellee. 

PER  CURIAM.  This  judgment  Is  afBrm- 
ed,  on  tbe  opinion  of  the  court  belonr  refus- 
ing to  take  off  the  nonsuit 


OOMMONWEAI/TH  v. 


(257  Pa.  289) 
HAINES. 


(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

1.  GannNAi,     Law      «=>372(4)— Evidbrci)— 

Otheb  OxTBirSEB. 
In  a  prosecution  for  murder,  where  it  was 
claimed  that  defendant  though  he  did  not  fire 
the  shot  which  killed  deceased,  was  a  principal 
in  the  crime,  evidence  that  defendant  and  the 
actual  murderer  had  previously  committed  burg- 
laries which  were  not  shown  to  be  in  any  way 
connected  with  the  murder  is  inadmissible ;  the 
murder  not  being  one  of  a  series  of  mutually  de- 
pendent crimes. 

2.  Cbiminai.      Law      4=s>780(l)— Tbiai^Ik- 

8TBU  CTIONS— ACCOICPLICES. 

Where  the  commonwealth  relies  on  accom- 
plice's testimony,  the  court  should  in  its  general 
charge  clearly  state  the  law  applicable  to  testi- 
mony of  accomplice  and  make  specific  applica- 
tion of  it  to  the  particular  case,  pointing  out 
wherein  such  testimony  was  claimed  to  be  con- 
tradicted or  corroborated,  and  directing  the  jury 
to  closely  scrutinize  such  testimony  and  accept 
it  with  caution. 

3.  Cbiminal    Law    <8=>1129(3)— Apfxai/— Ab- 

SIONVENT  OF  EBBOK. 

It  is  improper  to  assign  as  error  certain  ex- 
cerpts from  tbe  charge,  so  disconnected  from  the 
context  as  to  carry  an  erroneous  meaning  of  the 
language  used. 

Appeal  from  Ooort  of  Oyer  and  Termlnei; 
Jefferson  County. 

Ernest  Haines  was  convicted  of  murdei 
in  the  first  degree,  and  be  appeala  Re> 
versed. 

Argued  before  BROWN,  O.  J.,  and  MBS- 
TKBZAT,  STEWART,  MOSCHZISKER,  and 
FRAZER,  JJ. 

William  L.  McCracken  and  William  T. 
Darr,  both  of  BrookvIUe,  for  appellant  Jes- 
se 0.  Long,  of  Punxsutawney,  and  John  W. 
Reed,  of  Brookvllle,  for  appellee. 

MESTREZAT,  J.  William  S.  Haines,  a 
farmer,  resided  on  his  farm  In  Oliver  town- 
ship,  Jefferson   county,   in   a  house  located 


t=>For  ottaer  eases  ■••  same  topic  and  iCBT-NDlIBER  In  all  Ker-Numb«red  DlgMt*  ana  Indues 
101  A.-41 


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101  ATLANTIC  RJBPORTEB 


(Pa. 


near  the  Plttsftmrgli,  Shawmut  &  Northern 
Railroad.  His  family  consisted  at  himself, 
his  wife,  his  son,  Ernest,  and  his  daughter, 
Floy.  He  left  his  home  shortly  after  12 
o'clock,  noon,  Wednesday,  March  22,  1916, 
and  walked  west  on  the  track  of  the  railroad 
In  the  direction  of  the  village  of  Sprankles 
Mills,  which  Is  about  one  mile  distant,  and 
consists  of  a  schoolhouse,  two  stores,  a  black- 
smith shop,  a  gas  pump  station  and  a  half 
dozen  dwelling  houses.  The  railroad  sta- 
tion is  about  one-third  of  a  mile  southeast  of 
the  Tillage,  and  abont  one  mile  west  of  Mr. 
Haines'  residence,  and  between  the  residence 
and  the  station  there  is  a  railroad  cut  which 
is  on  a  carve.  While  Haines  was  walking 
on  the  railroad  track  in  the  cut,  and  1,200 
feet  east  of  the  railroad  station,  Henry  Ward 
Mottorn,  the  son  of  a  farmer  residing  in  the 
neighborhood,  fired  two  shots  at  him  from  a 
shotgtm;  the  first  taking  effect  in  Haines' 
breast,  and  the  second  striking  him  in  the 
head,  resulting  in  almost  Immediate  death. 
When  he  fired  the  shots,  Mottorn  stood  on 
the  north  embankment  of  the  cut,  which  Is 
about  13  feet  above  the  track.  Within  a 
short  time  after  Haines  was  killed,  his  body 
was  found  by  two  neighbors  on  the  railroad 
In  the  cat  They  reported  their  discovery 
to  the  agent  at  the  railroad  station  and  the 
news  was  telephoned  to  the  pump  station, 
where  Mottorn  and  Ernest  Haines,  the  son 
of  the  deceased,  were  at  the  time  the  message 
was  received. 

The  evening  of  the  day  of  the  homicide 
Mottorn  and  Ernest  Haines,  the  defendant 
in  this  case,  were  arrested  and  (jiarged  with 
the  crime.  They  were  jointly  indicted  as 
principals,  but  the  court  granted  a  severance, 
and  they  were  tried  separately.  Mottorn 
was  tried  first,  and,  after  the  Jury  had  re- 
tired, Haines  was  put  on  trlaL  Before  the 
Jury  in  the  Mottorn  case  had  returned  a 
verdict,  and  while  it  was  deliberating,  Mot- 
torn was  called  as  a  witness  by  the  common- 
wealth to  testify  in  the  Haines  case.  The 
defendant  objected  to  his  testimony,  but  the 
objection  was  overruled,  and  the  testimony 
was  received.  Mottorn  was  the  principal 
witness  on  behalf  of  the  commonwealth. 
The  Jury  found  a  verdict  of  guilty  of  murder 
in  the  first  degree  lu  both  cases. 

It  is  unnecessary  in  the  consideration  of 
this  appeal  to  refer  in  detail  to  Mottorn's  tes- 
timony given  oi>  the  trial  of  Ernest  Haines. 
He  admitted,  on  the  witness  stand,  tliat  be 
had  shot  and  killed  the  elder  Haines  after 
a  prior  unsuccessful  attempt  to  do  so,  and 
testified  that  It  was  done  in  pursuance  of  a 
plan  or  arrangement  formed  by  blm  and  the 
defendant  to  rob  the  deceased  of  $250,  which 
they  knew  the  latter  to  have  in  Ills  posses- 
sion.' He  further  testified  that,  on  Monday 
evening  prior  to  Wednesday,  the  day  of  the 
homicide,  he  entered  the  home  of  the  de- 
ceased for  the  purpose  of  robbing  him,  but 
was  frightened  away;  that,  in  the  villnge 
store,  he  and  the  defendant  had  again  plan- 


ned on  Tuesday  that  he  should  procure  a 
shotgun  and  shoot  the  deceased  as  he  passed 
through  the  railroad  cut  going  from  his 
home  to  the  village,  and  the  defendant  was 
to  be  on  hand  to  take  the  money  from  the 
body  of  the  deceased,  and  they  would  sub- 
sequently meet  at  the  pnmp  station  and  di- 
vide it ;  that  on  the  day  of  the  shooting  the 
defendant  and  his  sister  preceded  their  fa- 
ther along  the  railroad  to  the  railroad  sta- 
tion, where  bis  sister  left  him  and  went  to 
her  school  in  the  village;  that  the  defend- 
ant saw  his  father  coming,  and  notified 
Mottorn,  who  was  stationed  on  top  of  the 
embankment  and  shot  the  deceased  after  be 
entered  the  railroad  cut;  that  the  defend- 
ant secured  the  money  from  his  father's 
body,  and  shortly  thereafter  they  met  at  the 
pump  station  and  he  gave  It  to  Mottorn. 
After  the  latter's  arrest,  the  money  was 
found  under  the  carpet  In  his  room.  The 
defendant  testified  in  his  own  behalf,  alleged 
that  the  relations  between  his  father  and 
himself  were  friendly,  denied  that  be  had 
ever  been  a  party  to  planning  his  father's 
death,  or  that  he  had  any  prior  knowledge 
of,  or  anything  to  do  with,  the  crime,  and  in- 
troduced witnesses,  including  his  mother  and 
sister,  to  corroborate  his  testimony. 

The  first  assignment,  if  we  understand  the 
question  intended  to  be  raised,  complains 
that  the  court  erred  in  permitting  Mottorn 
to  testify  before  a  verdict  was  rendered  in 
his  case  and  he  was  sentenced.  As  Mottorn 
was  thereafter  convicted  of  murder  in  the 
first  degree  and  sentenced,  the  questioD,  if 
in  fact  it  be  one,  becomes  unimportant,  and 
cannot  be  raised  In  the  next  trial. 

[1]  The  second  assignment  complains  that 
the  court  erred  in  permitting  Mottorn, 
against  the  objection  of  the  defendant,  to 
testify  to  an  alleged  s^arate  and  distinct 
offense  committed  previously  by  him  and  the 
defendant.    Mottorn  was  asked: 

"State  whether  or  not  this  defendant,  E/rnest 
Haines,  was  with  you  at  any  other  place  that 
you  broke  Into." 

An  objection  to  the  question  being  over- 
mled,  the  witness  testified  that  he  and  the 
defendant  were  together  in  Seyler's  store. 
The  purpose  of  the  evidence,  as  stated  by 
counsel,  was  to  show  that  the  witness  and 
the  defendant  were  associated  togettier  In 
the  commission  of  other  criminal  offenses 
about  the  time  the  elder  Haines  was  mur- 
dered. The  time  of  the  occurrence  was  not 
shown;  whether  it  was  of  recent  date,  or 
several  years  prior  to  the  shooting  of  Haines, 
did  not  appear.  The  record  also  falls  to  dis- 
close any  offer  made  by  the  commonwealth 
to  show  other  instances  in  which  Mottorn 
and  the  defendant  were  associated  in  the 
commission  of  crime. 

We  think  it  was  reversible  error  to  permit 
the  witness  to  testify  to  the  occurrences  at 
Seyler's  store,  and  that,  therefore,  the  second 
assignment  must  be  sustained.  It  was  dis- 
tinctly stated  by  counsel  for  the  oonuuon- 


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COMMONWEALTH  ▼.  HAINES 


643 


wealth  tbat  the  evidence  was  offered  for  the 
purpose  of  showing  that  the  witness  and  the 
defendant  were,  abont  the  time  Haines  was 
billed,  associated  togetbei:  In  the  commission 
of  other  crimes.  The  testimony  failed  to  es- 
tablish that  they  had  been  associated  In  the 
commission  of  any  other  offense  when  the  al- 
leged offense  of  statutory  burglary  was  com- 
mitted, or  that  the  burglarly  was,  proximate- 
ly or  remotely,  connected  with  the  crime 
laid  in  the  indictment,'  or  was  one  of  a  series 
of  mutually  dependent  crimes  connected  with, 
and  resulting  or  terminating  in,  the  murder 
of  Haines.  These  requisites  for  the  admis- 
sion of  proof  of  collateral  crimes  are  entire- 
ly wanting  in  this  record.  The  common- 
wealth made  no  attempt  to  show,  nor  did  it 
appear  by  proof  in  the  case,  that  the  alleged 
burglary  was  other  than  an  independent  of- 
fense participated  in  by  the  parties,  having 
no  connection  whatever  with  the  crime  charg- 
ed in  the  indictment  against  the  defendant 
The  two  offenses  are  dissimilar  in  kind  and 
purpose,  and  could  not  have  been  laid  in  the 
same  indictment  It  was  proper  for  the  com- 
monwealth to  show  the  extent  of  the  prior 
intimacy  and  association  between  Mottom 
and  the  defendant,  and  whether  or  not  It 
was  criminal;  but  the  evidence  in  the  case 
falls  entirely  to  show  any  prior  criminal  con- 
cert of  action  l>etween  them  which,  in  the 
remotest  degree,  could  have  any  bearing  on 
the  Issue  in  the  present  case.  The  evidence, 
as  well  as  the  offer  of  counsel  made  In  the 
presence  of  the  Jury,  was  clearly  prejudicial 
to  the  defendant,  as  the  Jury  might  readily 
conclude  that,  if  the  defendant  had  recently 
been  associated  with  Mottorn  in  the  commls- 
sion  of  another  crime,  it  was  a  logical  pre- 
sumption, under  the  evidence,  that  he  was 
not  ignorant  of  Mottorn's  last  offense. 

It  is  fundamental  that  a  defendant  cannot 
be  convicted  of  an  offense  with  which  he 
Is  charged,  because  he  had  committed  an- 
other offense  unconnected  with  that  for 
which  he  was  Indicted;  and  hence,  as  a 
general  rule,  evidence  of  his  participation 
In  another  and  distinct  crime  is  not  ad- 
missible on  his  trial  to  prove  the  crime  laid  in 
the  indictment.  There  are,  however,  circum- 
stances under  which  evidence  of  the  commis- 
sion of  another  offense  may  be  received  In 
the  trial  of  a  criminal  case.  Tb6  exceptions 
to  tbe  general  rule  ezdndlng  such  testimony 
have  frequently  been  the  subject  of  adjudi- 
cation by  this  court  and  we  have  uniformly 
held  that  such  a  connection  must  be  shown 
between  the  two  offenses  as  tends  to  estab- 
lish tbat,  if  the  defendant  were  guilty  of  the 
one,  be  was  also  guilty  of  the  other.  The 
doctrine  Is  well  stated  by  Mr.  Justice  Clark 
in  Swan  v.  Commonwealth,  104  Pa.  218. 
There  the  defendants  were  Jointly  Indicted 
for  bnrglary  and  larceny.  It  appeared  that 
In  the  same  township  and  on  the  same  day 
another  house  had  been  burglarized,  to  which 
one  oC  the  defendants  had  pleaded  guilty  in 


another  indictment  This  fact  was  given  in 
evidence,  on  the  theory  that  defendants  were 
members  of  an  organization  banded  togethei 
for  the  commission  of  buislary.  The  de 
fendants  were  seen  together  In  the  locality 
of  the  crime  on  the  day  It  was  committed. 
We  reversed  the  Judgment  of  conviction,  and 
held  that  the  evidence  should  have  been  ex- 
cluded.   In  the  opinion  it  is  said: 

"To  make  one  criminal  act  evidence  of  anoth- 
er, some  connection  must  exist  between  them: 
that  connection  must  be  traced  in  the  genera; 
design,  purpose,  or  plan  of  the  defendant,  or  it 
may  be  shown  by  such  circumstances  of  identifi- 
cation as  necessarily  tends  to  establish  that  the 
person  who  committed  one  must  have  been  guilti 
of  the  other.  The  collateral  or  extraneous  of- 
fense must  form  a  link  in  the  chain  of  circum- 
stances or  proofs  relied  upon  for  conviction ;  as 
an  isolated  or  disconnected  fact  it  is  of  no  con- 
sequence ;  a  defendant  cannot  be  convicted  of  th« 
offense  charged  simply  because  he  is  guilty  of  an- 
other offense." 

The  counsel  for  the  appellant  misappre 
bended  the  purpose  of  the  testimony  covered 
by  the  third  assignment  of  error.  It  was  of- 
fered for  the  purpose  of  showing  by  the  de- 
fendant's acts  and  declarations  his  connec- 
tion with  the  crime,  and  was  entirely  com 
petent 

[2,  3]  The  fourth  to  the  ninth  assignments 
complain  of  certain  parts  of  the  charge  Ir 
which  the  trial  Judge  outlined  the  evidence 
produced  by  the  parties  at  the  trial.  These 
excerpts  are  separated  from  the  general  con- 
text Of  the  charge,  and,  standing  alone,  are 
in  some  instances  obscure  and  fail  to  indi- 
cate the  meaning  of  the  trial  Judge,  but  when 
read,  as  they  should  be,  in  their  proper  con- 
nection are  free  from  error.  The  Judge,  told 
the  Jury  that  he  had  given  them  a  mere  out- 
line of  the  contentions  of  the  parties,  and  not 
a  recapitulation  of  the  testimony  or  a  state- 
ment of  the  facts,  told  them  that  it  was  their 
duty  to  remember  all  the  evidence  and  give 
it  the  credence  it  was  entitled  to,  and  that 
the  credibility  of  the  witnesses  was  for  them, 
including  that  of  Henry  Ward  Mottom,  the 
accomplice.  We  have  time  and  again  con- 
demned and  held  to  be  reprehensible  the 
practice  of  assigning  as  error  excerpts  from 
the  charge  so  disconnected  from  the  context 
as  to  convey  an  erroneous  meaning  of  the 
language  used. 

The  tenth  and  eleventh  assignments  are 
without  merit  We  are  not  disposed  to  sus- 
tain the  twelfth,  thirteenth,  and  fourteenth 
assignments,  alleging  error  in  answers  to  cer- 
tain requests  for  instructions  which  deal 
with  the  extent  of  the  corroboration  suf- 
ficient to  warrant  conviction  on  the  testi- 
mony of  an  accomplice,  in  view  of  the  in- 
structions on  the  subject  contained  In  the 
general  charge  covering  the  questions  raised, 
and  to  which  no  error  is  assigned.  We  sug- 
gest, however,  that  on  the  next  trial  of  the 
cause  the  court  in  its  general  charge  state 
clearly  the  law  applicable  to  the  testimony 
of  an  accomplice,  and  make  a  more  specific 
application  of  it  to  the  particular  facts  tt 


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the  case.  The  court  should  point  out,  In  a 
general  way,  not  only  the  testimony,  of  the 
accomplice,  but  wherein  It  Is  claimed  to  be 
contradicted  and  corroborated,  and  the  Jury 
should  be  told  that  they  must  closely  scruti- 
nize such  testimony,  and  accept  it  with  cau- 
tion. 

The  second  assignment  of  error  is  sustain- 
ed; the  judgment  Is  reversed,  and  a  venire 
fadas  de  novo  la  awarded. 


(2E7  Pa.  ITS) 
BLACK  et  al.  v.  EASTERN  PENNSTIy- 
VANIA  RYS.  CX). 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

linaTATiOR  OF  ACTIONS  <8=931  —  Husbakd's 
Suit  tob  Injtjbt  to  Wife. 
A  huslwnd's  right  to  maintain  a  suit  for  per- 
sonal injury  to  his  wife  is  barred  after  two  years 
by  Act  June  24,  1895  (P.  L.  236),  relating  to 
suits  for  damages  for  injury  wrongfully  done  to 
the  i)er8(«  which  does  not  result  in  death. 

Appeal  from  Court  of  (Common  Pleas, 
Schuylkill  CX>unty. 

Trespass  by  Eliza  J.  Black  and  Edward 
Black  against  the  Eastern  Pennsylvania  Rail- 
ways Company,  to  recover  damages  for  per- 
sonal injuries.  Judgment  for  defendant,  en- 
tered upon  a  compulsory  nonsuit,  and  plaln- 
titTs  appeal.    Affirmed. 

The  facts  appear  in  the  following  opinion 
by  Bechtel,  P.  J.,  in  the  common  pleas: 

^is  case  was  argued  before  the  court  in  banc 
on  a  rule  to  strike  off  the  nonsuit  entered  by 
the  trial  judge.  It  presents  but  one  question, 
which  is  rather  unique.  The  suit  was  an  ac- 
tion of  trespass  brought  by  Eliza  J.  Black  and 
Edward  Black,  her  husband,  against  the  defend- 
ant for  injuries  sustained  by  Eliza  Black,  on 
the  28th  day  of  July,  1908.  The  suit  was 
brought  in  September,  191S.  It  is  admitted  by 
counsel  for  the  plaintiff  that  the  right  of  Eliza 
J.  Black  to  sue  has  been  barred  by  the  statute 
of  limitation  of  June  24,  1885  (P.  L.  236),  but 
contended  that  the  right  of  the  husband  to  main- 
tain the  suit  is  not  barred,  by  reason  of  the  fact 
that  he  has  six  years  in  which  to  bring  his  ac- 
tion, in  accordance  with  the  provisions  of  the 
act  of  March  27,  1713  (1  Smith's  Laws,  p.  76). 

The  act  of  1895  (P.  U  236,  i  2)  provides,  in- 
ter alia:  "Every  suit  hereafter  brought  to  re- 
cover damages  for  injury  wrongfully  done  to 
the  person,  in  cases  where  the  injury  does  not 
result  in  death,  must  be  brought  within  two 
years  from  the  time  when  the  injury  was  done 
and  not  afterwards;  in  cases  where  the  injury 
does  result  in  death  the  limitation  of  action 
shall  remain  as  now  established  by  law." 

We  have  been  unable  to  find  any  decision  of 
the  higher  courts  in  this  state  in  which  this 
question  has  been  definitely  decided.  The  act 
of  1895,  supra,  has,  however,  been  construed  a 
number  of  times.  In  the  case  of  Peterson  et  ah 
V.  Delaware  River  Fsiry  Co.  of  New  Jersey, 
190  Pa.  364,  365,  42  AU.  955,  the  court  say: 
"The  act  of  1895,  as  held  in  the  case  referred 
to,  is  a  general  act  in  the  nature  of  a  statute 
of  limitation*  Its  terms  are  general,  and  make 
no  exceptions  In  favor  of  persons  under  disabil- 
ity. The  settled  rule  is  that  infants  as  well  as 
all  others  are  bound  by  the  provisions  of  such 
statutes."  In  Rodebaugh  v.  PhUadelphia  Trac- 
tion Co.,  190  Pa.  358.  362,  42  Atl.  9^  954, 
it  was  said:   "The  words  of  the  act  of  1805  are 


general,  and  there  Is  nothing  to  indicate  that 
they  were  not  intended  to  establish  a  general 
rule,  applicable  to  all  cases  within  their  terms, 
to  wit,  'every  suit  to  recover  damages  for  in- 
jury wrongfully  done  to  the  person.'  "  There 
are  a  number  of  other  decisions  to  the  same  ef- 
fect 

The  act  of  May  8,  1895  (P.  L.  54),  provides 
that  the  right  of  action  in  case  of  injury  done 
to  the  person  of  the  wife  shall  be  tried  both 
for  the  husband  and  the  wife  in  one  suit,  and 
provides  for  the  rendition  of  verdicts  for  each 
of  them,  and  also  contemplates  a  verdict  in  fa- 
vor of  one  and  against  the  other;  and  it  is 
therefore  contended  by  counsel  for  the  plaintiff 
that  the  husband's  rights  are  not  sfEected  by 
the  statute  of  limitations  of  1895,_  supra.  The 
contention  of  counsel  for  the  plaintiff  is  that  the 
husband's  right  of  action  is  not  for  injuries  to 
his  person,  and  that  therefore  it  is  not  governed 
by  the  act  of  1895.  We  cannot  agree  with  this 
contention.  The  act  does  not  say  for  m^uries 
wrongfully  done  to  his  person,  but  for  injuries 
wrongfully   done   to   the  person.     The   suit  in 

?uestion  is  certainly  based  upon  injuries  wrqng- 
uUy  done  to  the  person,  the  person  of  plaintiffs 
wife.  It  is  difficult  to  understand  how  one  suit 
should  be  maintained  by  both  of  these  plaintiffs, 
founded  on  the  one  cause  of  action,  and  that 
cause  of  action  be  barred  by  the  statute  of  lun- 
itations,  and  yet  the  one  plaintiff  be  permitted 
to  recover.  .         .^        ....        « 

We  feel  that  it  was  the  evident  intention  of 
the  Legislature  to  bar  all  actions  for  wjune* 
done  to  the  person  after  two  years.  This  is 
the  plain  language  of  the  act  We  are  therefore 
of  the  opinion  that  the  nonsuit  was  properly 
entered. 

The  trial  judge  entered  a  compulsory  non- 
suit, which  the  court  in  banc  subsequently 
refused  to  take  off. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WALL- 
ING, JJ. 

John  O.  TJlrlch,  of  Tamaqua,  for  appellants. 
Otto  E.  Farquhar  and  a  H.  Berger,  both  of 
PottsvUle,  for  appellee. 

PESR  CURIAM.  The  act  of  1895  clearly 
barred  the  right  of  either  of  the  plaintiffs  to 
recover  in  this  action,  brought  more  than 
five  years  after  the  Injuries  to  the  wife  were 
sustained,  and  the  Judgment  is  affirmed,  on 
the  opinion  of  the  learned  court  below  re- 
fusing to  take  oft  the  nonsiiit. 

Judgment  affirmed. 


.        (»7  Pa.  »i) 
In  re  IVIBON'S  ESTATE. 

(Supreme  Court  of  Pennsylvania,     March  19, 
1917.) 

LiFB  EsTATsa  «=>6— Seoubitt— Entekinq  0» 
Secubxtt. 
Where  a  testatrix  left  to  her  husband,  the 
executor  of  her  estate,  all  her  interest  in  prop- 
erty, with  the  provision  that  he  should  pay  the 
interest  on  a  sum  of  money  for  the  maintenance 
of  the  testatrix's  grandson,  such  sum  to  revert 
at  the  death  of  the  husband  to  the  estate  for  the 
use  of  the  grandson,  the  husband  was  properly 
required  to  give  bond  to  secure  payment  of  the 
interest  and  principal. 

Appeal    from    Orphans'    Court,    Franklin 
County. 


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Pa.) 


PHICE  ▼.  LITTLE 


645 


In  the  matter  of  tbe  estate  of  Kate  Keyset 
Ivlson,  deceased.  On  petition  to  require  life 
tenant  of  personal  property  to  enter  security. 
Prom  decree  requiring  life  tenant,  I.  D.  Ivl- 
son, to  enter  security,  be  appeals.    Affirmed. 

Petition  to  require  a  life  tenant  of  person- 
al property  to  enter  security.  Kate  Keyser 
iTlson  died  testate,  June  1,  1912.  Her  will 
consisted  of  a  formal  paper  and  a  letter  of 
Instructions  to  her  executor,  and  was  duly 
probated  before  the  register  of  wills  of 
Franklin  county,  and  letters  testamentary 
granted  to  I.  D.  Ivlson,  one  of  her  executors; 
the  other  renouncing.  The  formal  will  gave 
to  her  executors  the  residuary  estate  In 
trust,  with  power  to  convert  the  same  Into 
money  and  to  Invest  and  reinvest  the  same 
In  lawful  securities,  tbe  Income  to  be  paid 
to  tbe  guardian  of  her  grandson,  George  W. 
Brodhead,  the  principal  of  tbe  said  fund  to 
be  paid  to  George  W.  Brodhead  absolutely, 
when  he  became  21  years  of  age.  In  case  of 
bis  death  before  be  became  21  years  of  age 
without  child  or  children  surviving,  the  resid- 
uary estate  was  given  to  certain  other  per- 
sons. 

The  letter  of  instructions,  probated  as  part 
of  tbe  will,  gave  to  I.  D.  Ivlson,  tbe  husband 
of  the  testatrix,  all  her  Interest  In  tbe  Hotel 
Washington,  "he  to  pay  tbe  Interest  on  five 
thousand  (5,000)  dollars  at  the  rate  of  five 
(G)  per  cent,  to  my  estate,  the  same  for  (in- 
terest) maintenance  of  my  grandson,  George 
Wills  Brodhead ;  Interest  not  to  begin  for 
one  year  after  my  death,  and  at  the  death 
of  my  husband,  I.  D.  Ivlson,  tbe  five  thou- 
sand (5,000)  dollars  to  revert  to  my  estate 
for  the  use  of  my  grandson,  George  Wills 
Brodhead,  if  of  age.  If  not,  to  be  Invested 
to  tbe  best  advantage  by  the  trustees,  inter- 
est only  to  be  used.  In  case  my  grandson 
before  reacblng  the  age  of  twenty-one  (21) 
years  should  die  without  issue,  I  give  and  be- 
queath to  my  hnsband,  I.  D.  Ivlson,  all  mon- 
ey, bonds,  mortgages" — the  remainder  of  the 
estate  being  given  to  certain  legatees. 

I.  D.  Ivlson  elected  to  take  under  bis 
wife's  will.  He  filed  his  account  as  executor, 
which  was  excepted  to,  and  the  exceptions 
in  part  sustained.  On  February  7,  1016,  tbe 
Philadelphia  Trust  Company,  guardian  of 
George  Wills  Brodhead,  the  minor  g^randson 
of  tbe  testatrix,  presented  its  petition  to  the 
orphans'  court  of  Franklin  county  for  a  rule 
on  I.  D.  Ivlson  to  turn  over  tbe  certain  ar- 
ticles given  to  him  for  life  or  until  be  should 
remarry,  and  to  require  him  to  give  security 
in  tbe  sum  of  $10,000  for  tbe  payment  of 
$250  to  the  guardian  of  George  Wills  Brod- 
head annually,  and  to  pay  the  principal  sum 
to  tbe  said  George  Wills  Brodhead,  as  pro- 
vided by  the  will  of  the  testatrix. 

I.  D.  Ivlson,  In  bis  answer  to  said  petition, 
expressed  his  willingness  to  turn  over  tbe 
articles  of  personal  proi)erty  valued  at  about 
$400,  but  denied  tbe  right  of  the  guardian  to 


require  him  to  give  security,  on  tbe  ground 
that  the  money  was  payable  by  blm  as  lega- 
tee, not  to  tbe  guardian,  but  to  himself  as 
trustee  under  the  will  of  his  deceased  wife, 
and  that  as  trustee  he  bad  active  duties  to 
perform,  and  therefore  should  not  be  requir- 
ed to  give  security. 

The  court  decided  that  the  case  was  ruled 
by  Kemerer's  Estate,  251  Pa.  282,  96  Atl. 
654,  and  directed  I.  D.  Ivlson  to  enter  secu- 
rity in  the  sum  of  $8,000.  I.  D.  Ivlson  ap- 
pealed. Error  assigned  was  the  order  of  the 
court. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKSR,  FBAZE]R,  and  WALLING. 
JJ. 

Charles  Walter  and  Arthur  W.  GUlan,  both 
of  Chambersburg,  for  appellant.  Irvtn  C. 
Elder,  of  Chambersburg,  John  Stockburger 
and  James  F.  Hagen,  both  of  Philadelphia, 
and  Walter  K.  Sharpe,  of  Chambersburg,  for 
appellee. 

PER  CURIAM.  We  agree  with  tbe  learn- 
ed judge  of  the  orphans'  court  that  this  case 
Is  ruled  by  Kemerer's  Estate,  251  Pa.  282,  98 
AtL  654,  and  therefore  tbe  decree  is  affirmed. 


PRICE  V.  LITTLE. 


(267  Pa.  SW 


(Supreme  Court  of  Pennsylvania.     March  23, 
1917.) 

TBIAL  e=9l9(>— iNSTRtrCTIOTTB. 

In  an  action  for  an  alleged  libelous  newH- 
paper  publication,  charcing  misconduct  in  of- 
fice on  the  part  of  plaintiff,  an  alderman  who  sflt 
as  a  magistrate,  it  was  not  error  for  tlie  trial 
judge  to  comment  on  the  ethics  which  should  be 
observed  by  a  magistrate,  and  to  state  that  the 
magistrate  should  not  sit  where  relations  be- 
tween him  and  the  suitors  were  so  close  as  to 
oast  a  suspicion  npon  him,  and  that  it  was  im- 
proper for  a  magistrate  to  institute  suit  in 
nis  own  court. 

Appeal  from  Court  of  Common  Pleas. 
Lackawanna  County. 

Action  by  Thomas  J.  Price  against  Rich- 
ard little.  From  a  judgment  on  verdict  for 
defendant,  plaintiff  appeals.    Affirmed. 

The  following  is  the  opinion  of  Staples, 
P.  J.,  In  the  court  of  common  pleas: 

From  the  record  it  appeared  that  the  alleged 
libelous  article  complamed  of  consisted  of  an 
account  of  a  proceeding  brought  before  the 
plaintiff  as  alderman  of  the  thirteenth  ward  of 
the  city  of  Scranton.  Defendant  offered  evi- 
dence to  prove  that  the  publication  was  true. 

The  court  charged  the  jury  in  part  as  follows: 
"You  will  remember,  likely,  the  details  of  the 
evidence  with  regard  to  these  charges  of  arbi- 
trary conduct  upon  his  part  We  preface  our 
remarks  upon  this  subject  with  this,  gentlemen 
of  the  jury:  A  magistrate  is  an  officer  of  the 
law,  his  oiiice  is  established  largely  for  the  con- 
venience of  the  people,  and  especially  of  the 
poorer  class  of  people.  It  is  not  the  rich  as  a 
rule  who  are  called  into  a  magistrate's  court; 
it  is  the  poor  who  get  there.  As  a  rule,  the 
amounts  that  are  sued  for  and  the  offenses  charg- 
ed against  persons  are  small  amounts  and 
minor  offenses.    Of  course,  in  the  process  of  the 


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C46 


101  ATLANTIC  REPOKTER 


(Fa. 


criminal  aide  of  the  court  and  the  law,  all  kinda 
of  charges  againat  persona  for  crimes  and  felo- 
nies must  be  instituted  in  the  magistrate'a  court, 
but,  aa  a  rule,  persona  who  are  well  to  do,  or 
have  money  at  hand,  retain  counael  or  attor- 
neya  at  law,  who  take  charge  of  their  affairs 
and  who  go  before  the  magistrates  and  look 
carefully  after  the  righta  of  their  clients,  and 
thia,  therefore,  puts  a  guard  upon  the  magis- 
trate, and  he  ia  more  inclined,  I  think  it  would 
be  fair  to  say,  to  strictly  obey  the  law  and  do 
hia  duty  where  there  are  counsel  able  and  fitted 
to  take  care  of  the  business  which  is  brongbt 
before  the  magistrate,  but  a  poor  peraon,  a  per- 
son not  well  to  do,  is  not  in  the  same  class,  and 
he  ia  at  least  entitled  to  information  from  a 
magiatrate  as  to  what  he  should  do ;  and,  if  the 
magistrate  neglects  to  give  that  information  to 
the  t>er8on  who  ia  brought  into  his  court  and 
pennita  him  to  go  on  and  neglect  something  that 
be  ought  to  do  until  he  is  caught  and  then  una- 
ble to  do  it  and  protect  hia  right,  that  would  be 
a  matter  of  criticism,  we  take  it,  by  a  news- 
paper, if  made  in  proper  manner.  It  is  a  part, 
or  should  be  a  part,  of  the  ethics  in  a  magis- 
trate'a office  the  same  aa  a  part  of  the  ethics  in 
the  common  pleaa  court.  No  judge  in  the  court 
of  common  pleaa  who  bad  any  regard  to  the 
proprieties  of  life  and  of  his  office  should  sit  in 
a  case  in  which  be  had  the  least  interest.  He 
would  call  in  another  judge.  He  ought  not  to 
sit  in  a  case  where  the  relations  between  him- 
self and  Bome  suitor  were  so  close  aa  even  to 
cast  suspicion  upon  bim,  and  a  magistrate  who 
brought  a  suit  in  his  own  court  for  a  claim  in 
which  he  was  personally  interested  in  the  mind 
of  the  conrt  would  be  guilty  of  misconduct,  to 
say  nothing  further  about  it. 

Verdict  for  defendant,  and  Judgment  tbere- 
on.    Plaintiff  appealed. 

Argued  before  BROWN,  C  J.,  and  POT- 
TER, STEWART,  FRAZER,  and  WAL- 
LING, JJ. 

Charles  H.  Soper,  of  Scranton,  for  appel- 
lant John  F.  Scragg,  Robert  E.  Scragg  and 
Harold  A.  Scragg,  all  of  Scranton,  for  ap- 
pellee. 

PER  CURIAM.  In  this  action  for  libel 
the  verdict  was  for  the  defendant,  and  from 
the  Judgment  on  it  the  plaintiff  has  appeal- 
ed. What  Is  termed  the  "first  assignment 
of  error"  Is  but  a  legal  conclusion  of  counsel, 
and  Is  therefore  dismissed.  By  the  second 
assignment  error  Is  charged  in  the  quoted 
portion  of  the  Instructions  to  the  Jury. 
While  the  learned  trial  Judge  might  properly 
have  omitted  from  his  charge  what  is  com- 
plained of,  no  legal  error  is  discoverable  in 
It,  and  the  Judgment  is  therefore  affirmed. 


(2S7  Pa.  320) 

In  re  PENNSYLVANIA  COAL  COMPANY'S 

ASSESSMENT. 

(Supreme  Conrt  of  Pennsylvania.     March  23, 
1917.) 

Taxation  ®=»493(8)— Review— Finding. 

Where  it  appeared  that  the  board  of  revi- 
sion and  appeal  in  making  findings  of  fact  as 
to  the  value  of  coal  lands  assessed  considered 
the  evidence  and  weighed  it,  their  findings  will 
not  be  disturbed  on  appeal. 

Appeal  from  Court  of  Common  Pleas,  Lack- 
awanna County. 


In  the  matter  of  the  assessment  and  valua- 
tion of  coal  land  of  the  Pennsylvania  Coal 
Company.  From  an  order  of  the  board  of 
revision  and  appeal  fixing  the  value  of  coal 
lands,  tlie  owner  appeals.    Affirmed. 

Appeal  from  valuation  of  coal  lands  at 
triennial  assessment  iff  the  board  of  revision 
and  appeal.  The  opinion  of  the  Supreme 
Court  states  the  facts.  The  court  in  banc 
assessed  the  Pennsylvania  Coal  Company's 
property  at  $300  per  foot  acre.  Pennsylvania 
Coal  Company  appealed. 

Argued  before  BROWN,  C,  J.,  and  POT- 
TER, STEWART,  FRAZER,  and  WALLING, 
JJ. 

Frank  W.  Wbeaton,  of  WUkes-Barre,  and 
3cim  P.  Kelly,  Henry  A.  Knapp,  James  H. 
Torrey,  James  EX  Burr,  M.  J.  Martin,  D.  R. 
Reese,  and  John  R.  Wilson,  all  of  Soranton, 
for  appellant.  H.  C.  Reynolds  and  H.  L.  Tay- 
lor, Co.  Sol.,  both  of  Scranton,  for  appellee. 

PER  CURIAM.  The  appeal  of  the  Penn- 
sylvania Coal  Company  from  the  valuation 
and  assessment  of  its  coal  lands  in  Dunmore 
borough  by  the  board  of  revision  and  appeal 
for  the  county  of  Lackawanna  was  heard 
by  the  court  below  in  banc,  and  the  finding  of 
its  Judges  was  that  the  value  of  those  lands 
on  January  1,  1918,  was  $400  per  foot  acre. 
Following  a  rule  of  uniformity,  they  reduced 
It  to  $300  per  foot  acre  for  assessment  pur- 
poses, or  $25  less  than  the  valuation  for  the 
purposes  of  taxation  fixed  by  the  board  of 
revision  and  appeal.  What  we  are  asked  to 
change  on  this  appeal  is  the  finding  of  fact 
by  the  judges  of  the  court  below  in  fixing  the 
valuation  of  the  lands.  It  was  for  them  to 
fix  this  after  the  consideration  of  the  evidence 
in  the  case  and  giving  due  regard  to  the 
weight  thereof.  Lehigh  Valley  Coal  Co.  v, 
Northumberland  County  Commissioners,  250 
Pa.  515,  95  Atl.  712.  They  seem  to  have  fol- 
lowed this  rule,  and,  after  duly  considering 
what  was  submitted  to  them,  we  cannot  say 
their  finding  was  erroneous. 

This  appeal  is  therefore  dismissed  without 
costs  to  either  party. 


(ST  Pa.  sn) 
In  re  McMURRAT'S  ESTATB. 

(Supreme  Court  of  Pennsylvania.    March  23, 
1917.) 

Appeal  from  Orphans'  Court,  Allegheny 
County. 

On  reargument  Former  decision  (256  Pa. 
233,  100  Atl.  798)  adhered  ta 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
FRAZER,  JJ. 

Charles  K.  Robinson  and  Frank  H.  Ken- 
nedy, both  of  Pittsburgh,  for  appellant.  John 
S.  Robb,  Jr.,  and  John  Rebman,  Jr.,  both  of 
Pittsburgh,  for  appellee. 


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Pa.) 


BlXIiEB  ▼.  SWARTZ 


647 


PER  CURIAM.  After  the  re-reargoment  of 
this  appeal,  ordered  upon  the  application  of 
the  ai^iellee,  -we  are  still  quite  clear  that  the 
learned  court  below  erred  In  substituting  Its 
discretion  for  that  of  the  register,  which  had 
not  been  improperly  exercised. 

Our  decree  of  January  8,  1917  (McMurray's 
Estate,  256  Pa.  233,  100  AtL  798),  wlU  there- 
fore not  be  disturbed. 


(257  Pa.  300) 

BIXLER  et  al.  y.  SWARTZ. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

Apfkai.  and  Ebbob  «=»954(4)  —  Review— In- 

JUHCTIOK. 

An  order  continuing  a  preliminary  injunc- 
tion aKainst  interference  with  plaintiff  s  posses- 
sion of  a  storeroom  and  against  any  summary 
action  at  law  to  recover  its  possession  will  not 
be  disturbed  on  appeal,  where  plaintiffs  were 
in  lawful  occupancy  under  a  lease  and  defendant 
was  threateninf  to  oust  them. 

Appeal  from  Court  of  Common  Pleas, 
Northampton  County. 

Bill  In  equity  for  an  Injunction  by  Fannie 
T.  Blxler  and  Arthur  B.  Blxler,  Individually 
and  as  partners  trading  as  A.  B.  Blxler  & 
Co.,  against  Mark  T.  Swartz.  From  a  decree 
continuing  a  preliminary  Injunction,  defend- 
ant aK>eals.    Appeal  dismissed. 

The  facts  appear  In  the  following  opinion 
by  McKeen,  J.,  in  the  common  pleas: 

The  defendant  moved  to  dismiss  the  bill  and 
the  preliminary  injunction  granted  thereon  in 
the  above-stated  case  for  the  reason  that  there 
are  no  injunction  affidavits  such  as  are  required 
by  the  equity  rules,  the  injunction  affidavits  hav- 
ing been  made  by  the  parties  to  the  bill,  and 
for  the  further  reason  that  the  bill  does  not  dis- 
close any  averment  or  allegation  which  would 
entitle  the  plaintiff  to  equitable  relief  and  to 
an  injunction,  preliminary  or  otherwise.  On  the 
6th  day  of  July,  1911,  Fannie  T.  Blxler,  Ar- 
thur B.  Bixler,  and  Samuel  P.  Ludwig,  co- 
partners doing  business  as  "the  C.  W.  Bixler 
Company,"  entered  into  a  written  lease  of  the 
premisea  in  question  with  the  Northampton 
Trust  Company,  trustee,  duly  appointed  by  the 
orphans'  court  of  Northampton  county  under 
the  will  of  Charles  Pomp,  deceased,  for  the  term 
and  period  of  10  years  from  the  Ist  day  of  Au- 
gust, 1911,  upon  the  terms  and  covenants  therein 
set  forth,  which  said  lease  was  signed  by  the 
said  copartners  as  follows:  "The  C.  W.  Bixler 
Company,  by  Samuel  P.  Ludwig.  Samuel  P. 
liudwig.  Arthur  B.  Bixler.  Fannie  T.  Bixler." 
The  firm,  instead  of  using  the  name  "the  C.  W. 
Bixler  Company,"  set  forth  in  the  lease,  used 
the  name  of  C.  W.  Bixler  &  Co.  There  was  nev- 
er any  written  partnership  agreement  between 
the  copartners  until  the  14th  day  of  September, 
1914,  when'  a  written  agreement  was  entered 
into  between  the  parties,  to  wit,  the  estate  of 
O.  Willis  Bixler,  by  the  executors,  Fannie  T. 
Bixler  and  Arthur  B.  Bixler;  Arthur  B.  Bix- 
ler, individually,  and  Samuel  P.  I/udwig.  The 
estate  of  O.  Willis  Bixler  owned  a  one-fifth  in- 
terest in  said  partnership,  Arthur  B.  Bixler  a 
two-fifths  interest,  and  Samuel  P.  Ludwig  a  two- 
fiftbs  interest.  These  interests  were  the  same 
when  the  original  partnership  was  entered  into 
by  the  parties.  Samuel  P.  Ludwig,  one  of  the 
partners,  diiJ  on  the  15th  day  of  June,  1016, 
iind  bis  interest,  under  the  terms  of  the  part- 
nership agreement,  was  acquired  by  Arthur  B. 


Bixler,  and  the  firm  name  was  changed  to  Ar- 
thur B.  Bixler  &  Co.,  composed  of  Arthur  B. 
Bixler,  now  owning  a  four-fifths  interest  in 
said  partnership,  and  Fannie  T.  Bixler,  repre- 
senting the  estate  of  C.  W.  Bixler,  a  one-fifth 
interest;  the  partnership  being  carried  on  in 
the  same  manner  and  under  the  terms  of  the 
partnership  agreement  by  the  surviving  partners 
with  the  exception  of  the  change  in  the  firm 
name.  The  lease  contains  a  clause  which  reads, 
"This  agreement  shall  be  binding  upon  the  ex- 
ecutors, administrators,  successors,  or  assigns 
of  the  parties  hereof ;"  also  a  clause  which  pro- 
vides, "And  the  parties  of  the  second  part  also 
agree  not  to  sublet  the  said  demised  premises, 
or  any  portion  thereof,  or  to  assign  this  lease 
either  by  themselves,  judicial  sale,  operation  of 
law,  or  otherwise,  without  permission  in  writ- 
ing to  that  effect  first  had  and  obtained  from 
the  said  party  of  the  first  part"  On  May  18tb, 
during  the  tenancy  of  plaintiff,  the  real  estate,  a 
part  of  which  was  occupied  by  plaintiff  by 
virtue  of  the  lease,  was  sold  to  Stanley  D.  How- 
ell and  Paul  M.  Thomas,  who  on  the  same  day 
conveyed  the  same  to  Mark  T.  Swartz,  the  de- 
fendant. On  August  1,  1916,  the  quarter's  rent 
then  due  was  paid  to  and  accepted  by  defend- 
ant; the  check  was  signed,  "0.  W.  Bixler  &' 
Co.,  per  A.  B.  Bixler."  On  November  1,  1916, 
the  rent  then  due  was  tendered  defendant  by 
check  signed  "A  B.  Bixler  &  Co.,  per  A.  B.*^" 
On  the  face  of  the  check  appeared  the  words, 
"A.  B.  Bixler  &  Co.,  successors  to  C.  W.  Bixler 
&  Co."  This  check  was  refused  by  defendant, 
and  tender  in  gold  for  amount  of  rent  due  was 
afterwards  made  by  plaintiff  to  defendant,  and 
also  refused.  On  November  29,  1916,  plaintiff 
received  a  quit  notice  from  the  defendant,  noti- 
fying and  requiring  plaintiff  to  quit  and  deliver 
up  possession  of  the  premises  in  question  on  the 
1st  day  of  January,  1017. 

The  plaintiff,  under  the  terms  of  the  written 
lease,  is  in  the  lawful  occupancy  and  posses- 
sion of  the  demised  premises,  and  under  the  facts 
presented  to  the  court,  there  havinpr  been  no 
nreach  of  any  of  the  covenants  therein  express- 
ed, cannot  be  disturbed  in  the  enjoyment  of  the 
occupancy  and  possession  of  snid  premises. 
Taking  up  the  question  of  the  sufficiency  of  the 
injunction  affidavits,  it  is  contended  that  these 
affidavits  were  made  by  complainants,  and  under 
the  equity  rules  must  fall.  Defendant  has  sub- 
mitted anthoiity  to  the  effect  that  a  bill  and 
preliminary  injunction  must  be  sustained  by  at 
least  two  injunction  affidavits,  senarate  and 
apart  from  the  affidavit  to  the  bill,  and  that 
these  aflidavits  mnst  be  made  by  different  per- 
sons, neither  of  whom  is  a  party  to  the  proceed- 
ings, and  must  each  contain  the  substance  of 
every  material  allegation  contained  in  the  bill. 
This  is  correct  as  a  general  proposition,  but 
cannot  be  rigidly  adhered  to,  where  the  enforce- 
ment of  such  a  ruie  would  work  injustice.  It 
can  reasonably  be  concluded,  and  it  was  so  stat- 
ed at  the  hearing,  that  complainants  were  the 
only  parties  having  knowledge  of  the  facts  al- 
leged and  averred  in  the  bill,  and,  under  these 
conditions,  equity  would  not  demand  the  strict 
enforcement  of  a  rule  which  would  bar  com- 
plainants from  obtaining  equitable  relief.  In 
Hinnershiti  v.  United  Traction  Co.,  206  Pa.  91, 
97,  55  Atl.  841,  Mr.  Justice  Mitchell,  in  passing 
upon  an  equity  rule,  said:  "The  equity  rules 
were  promulgated  by  this  court  under  the  au- 
thority of  an  act  of  assembly,  and  it  has  been 
said  that  they  have  'all  the  force  and  effect  of 
a  positive  enactment.'  By  this  was  meant  that 
they  were  established  as  rules  of  equity  practice 
in  all  the  courts  of  the  commonwealth,  and  must 
be  followed  and  enforced  as  such.  *  •  •  But 
it  was  not  intended  to  say  that  they  were  in- 
exorable under  aU  possible  circumstances,  or 
to  take  them  out  of  the  ordinary  equitable  con- 
trol of  a  chancellor  in  the  application  of  chan- 


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eery  rules  to  exceptional  cases.  Such  a  con- 
struction might  easily  make  them  more  oppres- 
slTe  than  mandatory  statutes.  •  •  •  They 
ere  the  rules  of  all  the  courts,  to  be  enforced 
as  of  course  in  all  of  them,  and  not  relaxed  or 
disregarded  as  matter  of  mere  indulgence  or  con- 
venience. But,  on  the  other  hand,  they  are,  like 
all  other  rules  of  practice,  subject  to  the  judi- 
cial discretion  of  the  chancellor  as  to  their  strict 
enforcement  under  circumstances  productive  of 
injustice  or  exceptional  hardship.  This  doe- 
trine  was  also  approved  by  Mr.  Justice  Mosch- 
Eisker,  in  Sunbury  Borough  v.  Snnbury  &  Sus- 
quehanna Ry.  Co.,  241  Pa.  357,  360,  88  Atl.  543, 
and  by  Mr.  Justice  Potter,  in  Crennell  v.  Ful- 
ton, 241  Pa.  572,  579,  88  Atl.  783. 

The  other  reason  advanced  by  defendant,  that 
the  bill  does  not  disclose  any  averment  or  alle- 
gation which  would  entitle  plaintiff  to  equitable 
relief  and  to  an  injunction,  preliminary  or  oth- 
erwise. In  view  of  the  lawful  occupancy  and  pos- 
session of  plaintiff  of  the  premises  under  the 
terms  of  the  written  lease,  cannot  be  sustained. 
In  Denny  v.  Fronheiser,  207  Pa.  174,  56  Atl. 
406,  approved  in  Kaufmann  v.  IJggett.  209  Pa. 
87,  92.  58  Atl.  129,  67  L.  R.  A.  353,  103  Am.  St. 
Rep.  988,  it  was  held:  "That  a  court  of  equity 
has  jurisdiction  in  a  proper  case  to  restrain 
proceedings  under  the  landlord  and  tenant  acts 
of  1772  and  1863."  In  the  case  at  bar.  under 
the  facts  presented  at  the  hearing  on  the  mo- 
tion to  continue  preliminary  injunction,  the 
plaintiff  is  entitled  to  a  continuance  of  the 
same,  and  a  refusal  to  grant  such  relief  would 
be  contrary  to  the  principles  governing  equity 
practice. 

The  court  continued  a  preliminary  injunc- 
tion which  it  had  granted.  Defendant  ap- 
pealed. 

Argued  before  MEJSTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER,  and  WALr 
LING,  JJ. 

W.  S.  Klrkpatrlck  and  Smith,  Paff  &  Laub, 
all  of  Easton,  for  appellant.  P.  C.  Evans  and 
Clarence  Beck,  both  of  Easton,  and  Eklward 
P.  Stout,  of  Jersey  City,  N.  J.,  for  appellees. 

PER  CURIAM.  This  la  an  appeal  from  an 
order  of  the  court  below,  continuing  a  pre- 
liminary Injunction  restraining  the  defend- 
ant from  Interfering  with  the  plaintiffs'  pos- 
session of  a  storeroom  in  the  dty  of  Easton 
and  from  instituting  or  proceeding  with  any 
summary  action  at  law  for  that  purpose.  We 
have  carefully  considered  the  facts  disclosed 
by  the  record,  and  think  there  were  reason- 
able grounds  for  the  action  of  the  court  be- 
low, and  therefore.  In  accordance  with  our 
established  practice,  we  will  not,  on  this  ap- 
peal, further  consider  the  merits  of  the  case. 

The  appeal  Is  dismissed  at  the  costs  of  the 
appellant. 

(257  Pa.  338) 

GEISSLER  et  al.  v.  LAUTHER. 

(Supreme  Court  of  Pennsylvania.     March  23, 
1917.) 

Wills  <s=3599  —  Constbuction  —  Estate  De- 
vised— Fee. 
Under  a  will  which,  after  providing  for  the 
erection  of  a  monument  and  the  payment  of  tes- 
tator's debts  and  tor  a  trust  estate,  suggested 
that  the  residue  of  the  realty  be  taken  by  his 
children  at  the  appraisement  therewith  inclosed, 
the  children  took  an  estate  in  fee  simple  in  the 
real  estate. 


Appeal  from  Court  of  CJommon  Pleas,  Berks 
County. 

Assumpsit  by  Harry  C.  Gelssler  and  Annie 
L.  Gelssler,  his  wife,  and  others,  against 
Louis  G.  Lauther,  for  balance  due  as  pur- 
chase money  under  an  agreement  for  tb9 
sale  of  real  estate.  Judgment  for  plaintiffs 
for  want  of  a  sufficient  affidavit  of  defense, 
and  defendant  appeals.    Affirmed. 

The  following  Is  the  opinion  below  of  Wag- 
ner, J. : 

The  plaintiffs  in  this  case  daim  from  defend- 
ant the  sum  of  $1,990,  the  balance  due  as  pur- 
chase money  upo7i  an  agreement  entered  into  by 
the  plaintiffs  with  the  defendant  for  the  sale 
to  him  of  1335  North  Tenth  street,  Reading, 
Pa.  The  only  defense  is  that  the  plaintiffs  are 
not  the  owners  of  said  property  in  fee  simple,  for 
the  reason  that  under  the  will  of  Henry  C- 
Geissler,  deceased,  they  did  not  take  an  estate  in 
fee  simple. 

In  the  case  of  Henry  C.  (Jei.ssler,  Jr.,  Blarie 
L  Geissler  et  al.  v.  Reading  Trust  Company, 
Trustee,  etc.  (opinion  just  filed),  we  have  con- 
sidered the  effect  of  the  clauses  in  the  will  of 
Henry  C.  Geissler,  deceased,  in  which  he  at- 
tempted to  create  a  trust  estate  for  his  children 
and  grandchildren.  The  property  in  question  iu 
this  suit  is  no  part  of  the  estate  of  the  said 
Henry  C.  Geissler,  deceased,  attempted  to  be 
placed  in  trust,  but  belongs  to  that  designated 
in  his  will  as  the  "rest,  residue,  and  remainder 
of  my  estate."  The  only  clause  in  the  will  that 
refers  to  this  residue  of  the  estate  is  item  11, 
which  is:  "As  to  the  rest,  residue  and  remain- 
der of  my  estate,  I  suggest  that  the  real  estate 
be  taken  by  my  children  at  the  appraisement  as 
herewith  inclosed  and  hereinbefore  referred  to, 
also  the  securities,  at  the  then  market  values." 

The  claim  of  the  plaintiff  is  that  the  testa- 
tor, having  out  of  his  estate  made  provision  for 
the  erection  of  a  monument,  the  payment  of  his 
debts  and  a  trust  estate,  by  this  item  11  recoR- 
nizes  that,  without  a  specific  bequest  of  the  resi- 
due of  his  property,  it,  upon  his  death,  would 
pass  to  bis  four  children  in  equal  shares,  under 
the  intestate  laws;  that  the  only  purpose  of 
this  clause  is  to  give  a  sugcestion  of  a  valuation 
of  the  real  estate  to  facilitate  an  equitable  dis- 
tribution thereof.  The  only  two  constructions 
that  can  be  placed  upon  this  item  11  are  that  it 
merely  fixes  the  price  at  which  the  children  are 
to  take  the  residue  of  his  estate  under  the  in- 
testate laws,  as  contended  for  by  the  plaintiffs; 
or,  second,  that  it  is  broad  enough  to  give  to  the 
children  the  real  estate  at  the  price  fixed.  P"' 
the  purposes  of  this  case  it  is  immaterial  which 
of  these  is  correct,  as  under  either  of  them  the 
children  of  Henry  Geissler,  deceased,  have  an 
estate  in  fee  simple  in  the  property  described 
in  plaintiff's  declaration. 

The  lower  court  entered  Judgment  In  favor 
of  the  plaintiffs  for  want  of  a  sufficient  affida- 
vit of  defense  tot  the  sum  of  $1,990.  De- 
fendant appealed. 

Argued  before  BROWN,  C  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
FRAZER,  JJ. 

Walter  B.  Craig  and  Jefferson  Snyder, 
both  of  Reading,  for  appellant  H.  Robert 
Mays,  of  Reading,  for  appellees. 


PER  CURIAM.  The  Judgment  In  this  case 
is  affirmed,  on  the  opinion  of  the  learned 
court  below  In  directing  it  to  be  entered. 


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COMMONWEALTH  t.  MATTER 


640 


(2ST  Pa.  a» 

COMMONWBAI/TH   v.   MATTER. 

(Supreme  Goart  of  PenDsylTania.     March  23, 
1917.) 

1.  Statutes  ^91(2)  —  "Ix>cai,  ob  Spkoial 

Law"— CONBTITOTIONAI,  PBO VISIONS. 

Act  June  16,  1911  (P.  L.  1027),  providing 
for  the  appointment  of  a  capitol  park  commis- 
sion to  obtain  for  the  commonwealth  for  park 
pnrposes  such  land  as  the  commission  might 
wish  ^rithin  certain  boundaries,  is  not  a  local 
and  special  law  in  violation  of  Const,  art.  3,  8 
7,  prohibiting  an;  local  or  special  legislation 
relating  to  the  affairs  of  counties,  cities,  towns, 
wards,  boroughs,  or  school  districts. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Local 
Iiaw ;    Special  Law.] 

2.  Statutes    «=»8%(1>— Enactment— Advbb- 

The  validity  of  Act  June  16,  1911  (P.  L. 
1027),  appointing  a  capitol  park  commission 
to  obtain  land  for  the  commonwealth  for  park 
purposes,  which  bad  been  duly  passed  by  both 
branches  of  the  Ijegislature  and  approved  by  the 
Governor,  could  not  be  impeached  by  a  state- 
ment in  an  affidavit  of  defense  in  the  common- 
wealth's action  of  ejectment  for  land  appropriat- 
ed by  the  commission  that  the  act  was  invalid 
for  the  reason  that  it  had  not  been  advertised. 

3.  Exinknt  Domain  ®=>71— Compensation— 

OONSTITnTIONALITY  OF  STATDTB. 

Such  act  appropriating  $2,000,000  to  carry 
out  its  provisions,  and  providing  that  a  writ  of 
mandamus  might  issue  K>r  paying  any  judgment 
which  the  owner  might  recover  against  the 
commonwealth  for  the  taking  of  his  land,  in  the 
absence  of  any  averment  that  the  appropriation 
was  insufficient  to  cover  the  value  of  lands  tak- 
ea,  and  in  view  of  the  owner's  appearance  be- 
fore the  capitol  park  commission  in  regard  to 
the  value  of  the  land  taken,  and  his  nending 
appeal  from  the  valuation  fixed  by  the  com- 
mission, did  not  violate  Const,  art.  1,  I  10,  on 
the  ground  that  no  compensation  bad  either  been 
paid  or  secured  for  the  land  taken. 

Api)eal  from  Court  of  Common  Pleas,  Dau- 
phin County. 

B]|]ectment  by  the  Commonwealth  of  Penn- 
sylvanla  against  H.  Homer  Matter.  Judg- 
ment for  plaintiff  for  want  of  a  sufficient 
affidavit  of  defense,  and  defendant  appeals. 
Affirmed. 

The  following  Is  the  opinion  of  McCarrell, 
J.,  In  the  court  of  common  pleas,  snr  plaln- 
tlfTs  rule  for  Judgment  for  want  of  a  suffl- 
cient  affidavit  of  defense: 

This  action  is  brought  to  obtain  possession  of 
certain  real  estate  in  the  Eighth  ward  of  the 
city  of  Harrisburg,  known  as  No.  136  North 
Fourth  street.  This  land  lies  within  the  park 
extension  zone  as  defined  in  the  act  of  June  16, 
1911.  (P.  L  1027).  This  act  provides  for  the 
appointment  of  a  capitol  park  commission  for 
the  purpose  of  obtaining  for  the  commonwealth 
for  park  purposes  such  land  as  the  commission 
may  desire  to  take  for  the  commonwealth  within 
the  boundaries  mentioned  in  the  act.  The  com- 
mission is  authorized  as  far  as  practicable  to 
acquire  by  purchase  the  lands  included  within 
said  boundaries  upon  such  terms,  price,  or  con- 
sideration as  may  be  considered  by  it  to  be  rea- 
sonable and  can  be  agreed  upon  between  it  and 
the  owners  of  lands.  If  unable  to  agree  the 
commission  is  authorized  to  determine  what  land 
within  said  boundaries  it  will  take  for  the  use 
of  the  commonwealth,  to  give  notice  to  the  own- 
ers or  reputed  owners  of  their  intention  to  take 
the  lands  belonging  to  such  owners,  for  at  least 


60  days,  and  then  provides  that  after  the  giving 
of  said  notice  for  said  time  the  commission  shall 
enter  upon  and  take  possession  of  the  lands,  and 
declares  that  such  entry  and  possession  "shall 
vest  in  the  commonwealth  the  absolute  title  to 
the  lands  so  entered  upon." 

[1,2]  The  declaration  in  this  case  avers  that 
under  this  act  of  assembly  the  commission,  be- 
In^  unable  to  agree  with  the  defendant  upon  tiie 
price  of  the  lands  in  question  here,  gave  notice 
of  its  intention  to  take  the  said  lands  on  De- 
cember 28,  1915,  and  60  days  thereafter  made  , 
entry  of  possession  thereon.  According  to  the 
terms  of  the  act  the  title  to  the  premises  was 
vested  absolutely  in  the  commonwealth  when 
this  action  was  taken.  The  affidavit  of  defense 
and  the  supplement  thereto  do  not  deny  that  this 
proceeding  was  had  by  the  capitol  park  exten- 
sion commission  as  stated,  but  contends  that  the 
act  under  which  the  commission  has  proceeded 
is  local  and  special,  and  invalid  because  not  ad- 
vertised. It  was  duly  passed  by  both  branches 
of  the  Legislature  and  approved  by  the  Gover- 
nor, and  according  to  a  long  line  of  decisions  in 
this  state  its  validity  cannot  now  be. impeached 
because  of  any  statement  contained  in  the  affi- 
davits of  defense.  It  must  be  conclusively  pre- 
sumed that  everything  was  done  that  the  law  re- 
quired to  be  done.  Besides,  we  are  not  satisfied 
that  the  act  is  local  or  special  legislation  within 
the  meaning  of  the  constitutional  provision. 
Const,  art  3,  {  7.  It  expresses  the  determina- 
tion of  the  commonwealth  to  provide  lands  for 
the  extension  of  its  capitol  park  within  certain 
boundaries,  and  appoints  a  commission  to  make 
purchases,  if  the  same  can  be  done,  and  to  ob- 
tain title  otherwise  in  case  an  agreement  as  to 
price  cannot  be  reached.  The  right  of  the  com- 
monwealth to  take  land  for  this  purpose  cannot 
be  questioned,  and  the  method  of  obtaining  title 
is  not  in  violation  of  any  constitutional  provi- 
sion. The  affidavits  of  defense  are  quite  volu- 
minous, and  refer  to  many  matters  touching  oc- 
currences in  connection  with  the  passage  of 
the  act  and  concerning  the  conduct  of  individu- 
als with  respect  thereto,  but  none  of  these  mat- 
ters, in  our  opinion,  can  be  considered  now. 
The  act  must  be  regarded  as  a  valid  statute  of 
the  commonwealth,  binding  upon  all  its  citizens 
and  the  commonwealth  as  well. 

[3]  In  the  original  affidavit  of  defense  in  sup- 
port of  defendant's  allegation  that  the  taking  of 
this  land  is  in  violation  of  article  1, 1 10,  of  the 
Constitution,  it  is  alleged  that  no  compensation 
has  either  been  made  or  secured  for  the  lands 
in  question  here,  and  that  "to-day  there  is  no 
fund  in  the  state  treasury  to  pay."  The  act, 
however,  makes  an  appropriation  of  $2,000,000 
for  the  purpose  of  carrying  into  effect  its  pro- 
visions and  making  payment  for  the  lands  di- 
rected to  be  acquired.  In  the  present  case  the 
defendant  had  a  hearing  before  the  commission 
in  regard  to  the  value  of  the  land  described  in 
this  writ,  and  the  commission  fixed  a  v^uation, 
from  which  an  appeal  has  been  taken  in  due 
course  by  the  defendant,  and  which  appeal  is 
now  awaiting  trial  and  should  be  promptly 
heard.  The  second  section  of  the  act  provides 
that  in  all  cases  where  the  value  of  propwty  is 
fixed  by  judgment  upon  an  appeal  taken  nom 
the  award  of  the  commission,  the  court  is  au- 
thorized and  empowered  to  issue  a  writ  of  man- 
damus to  the  proper  officer  to  secure  the  pay- 
ment of  such  judgment.  There  is  no  averment 
in  the  affidavit  of  defense  that  the  amount  ap- 
propriated as  aforesaid  is  insufficient  to  cover 
the  value  of  the  land  described  in  tihe  writ  when 
the  same  is  ascertained  upon  the  pending  ap- 
peal, and  we  regard  the  provisions  contained  in 
the  act  appropriating  the  money  and  empower- 
ing the  issuing  of  a  writ  of  mandamus  for  pay- 
ing any  judgment  recovered  as  a  sufficient  secu- 
rity for  just  compensation  for  the  taking  of  de- 
fendant's lands  within  the  meaning  of  the  con- 


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atitutlonal  proTiaion  referred  to.  The  afBdavits 
of  defense  allege  that  the  dimensioDs  of  the  land 
taken  by  the  commonwealth  ar«  greater  than 
are  set  out  in  this  writ.  If  upon  the  trial  of 
the  pending  appeal  it  is  shown  that  the  dimen- 
sions of  the  property  are  not  correctly  stated, 
proof  will  be  heard  as  to  the  exact  dimensions, 
and  the  jury  will  be  instructed  to  ascertain  the 
fair  market  value  of  all  the  lands  owned  by  the 
defendant  which  are  taken  by  the  commission 
for  the  use  of  the  commonwealth. 

We  have  carefully  considered  all  the  allega- 
tions of  the  affidavits  of  defense.  As  already 
stated,  there  is  no  denial  of  the  procedure  taken 
by  the  commission  for  the  purpose  of  obtaining 
title  for  the  commonwealth  to  the  lands  describ- 
ed in  the  writ,  and  these  proceedings  according 
to  the  statute  vest  the  absolute  title  to  the  lands 
in  the  commonwealth  of  Pennsylvania.  We  are 
therefore  of  opinion  that  neither  the  original  nor 
supplemental  affidavit  of  defense  discloses  any 
anmcient  answer  to  the  plaintiCTs  claim  of  title, 
and  the  commonwealth  is  at  liberty  to  enter 
Judgment  in  favor  of  the  commonwealth  and 
against  the  defendant  for  the  lands  described  in 
the  writ  To  this  conclusion  the  defendant 
excepts,  and  at  hia  request  an  exception  is  now 
sealed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
FRAZDR,  JJ. 

H.  Homer  Matter,  of  Harrlsburg,  In  pro. 
per.  Joseph  U  Kun,  Deputy  Atty.  Gen.,  and 
Francis  Shunk  Brown,  Atty.  Gen.,  for  the 
Oommonwealth. 

PER  CURIAM.  This  appeal  ought  to  be 
quashed  for  flagrant  disregard  of  our  rules 
relating  to  the  statement  of  questions  Involv- 
ed and  assignments  of  error,  but,  that  there 
may  be  an  end  to  the  litigation,  the  Judg- 
ment la  afl^med  on  the  opinion  of  the  learned 
court  below.  In  pursuance  of  which  It  was 
entered. 

(S7  Fa.  S64) 

SMTZINGBR  et  al.  v.  BECKER  et  al. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

1.  EQurrr  «=»97— Action  fob  Aooodntino— 
Pasties. 

Under  rule  22  of  the  Equity  Rulee  of  the 
Supreme  Court  providing  that  where  parties  on 
either  side  are  very  numerous,  and  cannot  readi- 
ly be  brought  before  it,  the  court  may  dispense 
with  making  all  of  them  parties,  etc,  the  gran- 
tees or  heirs  of  grantees  of  certain  lots  sold 
them  by  the  trustees  of  an  unincorporated  chni- 
itable  association  holding  land  for  the  sole  pnr- 
|)08e  of  a  general  cemetery  for  the  use  of  the 
people  of  the  vicinity,  and  to  manage  and  im- 
prove it,  were  proper  parties  to  a  bill  in  eq- 
uity for  an  accounting  of  the  proceeds  received 
from  the  sale  of  lots,  and  for  the  removal  of  the 
trustees. 

2.  Chawties  «c»43  —  OHABrrABLE  Um  — Ap- 
plication or  Income— Accounting. 

Such  trustees  who  had  appropriated  part 
of  the  amount  received  from  the  sale  of  lots  and 
other  income  arising  therefrom  to  the  erection 
of  halls  and  other  buildings  for  the  purposes  of 
the  association  were  liable,  at  the  suit  of  the 
holders  of  certain  of  the  cemetery  lots,  to  an 
accounting  of  the  funds  received,  and  subject  to 
an  injunction  against  applying  income  to  other 
purposes  than  that  stated  in  the  deed. 


Appeal  from  Court  of  Common  Pleas, 
Schuylkill  County. 

Bill  in  equity  by  Jacob  R.  Seitzinger  and 
others  for  an  accounting  and  for  the  removal 
of  Ejdward  Becker  and  others,  trustees  of 
Harmony  Lodge  "No.  86,  of  the  Borough  of 
Tamaqua,  of  the  Independent  Order  of  Odd 
Fellows  of  Pennsylvania,  and  others.  Decree 
for  complainants,  and  defendants  appeal. 
Appeal  dismissed,  and  decree  affirmed. 

After  a  hearing  on  bill  and  answer  Brumm, 
J.,  in  the  court  of  common  pleas,  found  the 
following  facts  and  coQClusions  of  law: 

Facts. 

On  February  10,  1913,  the  deed  from  the  Lit- 
tle Schuylkill  Navigation,  Railroad  &  Coal  Com- 
pany to  James  M.  Hadesty  et  al.,  trustees  of 
Harmony  Lodge,  etc.,  as  set  forth  in  complain- 
ants' pleadings,  was  introduced,  and  its  contents 
not  disputed  by  respondents. 

On  same  day  was  introduced  the  deed  from  the 
Odd  E^lows  Cemetery  of  Tamaqua,  to  John  F. 
Boyer,  one  of  the  complainants,  dated  the  10th 
day  of  February,  1913,  for  lots  Nos.  Ill  and 
11()  (with  description),  being  a  part  of  the  tract 
of  land  which  the  Little  Schuylkill  NavigatioD, 
Railroad  &  Coal  Company  above  mentioned, 
granted  and  conveyed  to  James  M.  Hadesty  and 
others.  This  deed  and  other  testimony  sliowed 
that  the  complainants  as  originally  named  in 
this  bill,  had  a  special,  individual  interest  in 
said  cemetery  as  purchasers  or  heirs  of  pur- 
chasers of  burial  lots.  The  acceptance  of  the 
trust  under  the  deed  was  shown  and  admitted  by 
respondents.  The  said  trustees  of  said  Harmony 
Ix>dge  have  held,  improved,  and  managed  said 
tract  of  land,  for  the  purpose  of  a  general  cem- 
etery for  the  use  of  the  people  of  the  borough  of 
Tamaqua  and  vicinity,  but  have  acquired  more 
money  by  the  sale  of  lots,  etc.,  than  was  neces- 
sary for  that  purpose,  and  have  appropriated  a 
large  amount  of  money  thus  acquired,  for  the 
benefit  of  said  Harmony  Lodge  of  Odd  Fellows, 
in  the  erection  of  buildings  and  other  purposes 
wholly  disconnected  from  and  forming  no  part  of 
said  cemetery.  The  complainants  have  with- 
drawn their  claim  as  to  any  alleged  discrimina- 
tion in  favor  of  Gen.  Doubleday  Post;  there  is 
no  other  discrimination  in  favor  of  any  por- 
tion of  the  inhabitants  of  the  borough  of  Ta- 
maqua and  vicinity,  claimed. 

While  the  respondents  admit  that  they  have 
applied  certain  moneys  received  from  the  sale 
of  lots,  to  the  cost  of  the  erection  of  a  building 
belonging  to  and  used  in  connection  with  the 
charitable  purposes  of  the  respondents,  they 
also  alleged  that  they  purchased  five  acres  of 
land  adjacent  to  the  cemetery,  for  which  they 
paid  over  $4,000,  and  expended  several  sums  in 
clearing  and  improving  the  same,  and  that  they 
have  taken  up  bonds  amounting  to  $7,000,  whidi 
were  used  by  said  Harmony  Lodge  to  secure  a 
loan  for  the  erection  of  its  hall  on  Broad  street, 
Tamaqua;  that  they  have  invested  $9,000  in 
first-class  bonds,  which  are  now  in  the  possession 
of  the  treasurer  of  the  respondent  trustees,  and 
that  S2,000  of  said  surplus  is  in  cash,  which  ii 
now  in  the  possession  of  said  treasurer:  that 
they  raised  a  large  sum  of  money  by  a  fair  held 
by  said  Harmony  Lodge,  and  which  money  wai 
exclusively  devoted  in  improving  said  cemetery, 
etc.,  and  sundry  other  financial  transactions; 
all  showing,  or  tending  to  show,  that  the  money, 
or  part  of  the  money  derived  from  the  sale  of  the 
lots  of  the  cemetery,  in  charge  of  the  respondeat 
trustees,  under  the  deed  from  the  Little  Schuyl- 
kill Navigation  Railroad  &  Coal  Company,  was 
appropriated  to  other  purposes  than  to  improve, 
manage,  and  hold  for  the  sole  purpose  of  a  gen- 


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SBITZINaER  ▼.  BECKER 


651 


eral  cemetery  for  the  Dse  of  the  people  of  the 
borough  of  Tamaqaa  and  ricinitr. 

Assuming  for  argument's  sake,  that  the  deed 
from  the  Schuylkill  NaviKation  Railroad  &  Coal 
Company  to  James  M.  Hadesty  et  al.,  trustees, 
passed  title  in  fee  simple,  yet  Uie  condition  sub- 
sequently attached  to  said  grant  involves  two 
main  features:  First,  that  the  land  shall  be  im- 
proved, managed  and  held  for  the  sole  purpose 
of  •  general  cemetery;  second,  this  purpose  is 
limited,  "for  the  use  of  the  people  of  the  borough 
of  Tamaqua  and  vicinity,  and  no  discrimination 
shall  be  made  for  or  against  any  portion  of  the 
inhabitants,  but  the  rules  and  regulations  of 
said  cemetery  shall  be  so  formed  as  to  secure 
equal  ruhts  and  privileges  to  all,"  etc. 

The  first  feature  of  this  condition  has  been 
carried  out  There  is  no  dispute.  Therefore 
the  whole  matter  of  contention  is  involved  in  the 
second  feature  as  to  whether  the  trustees  have 
managed  and  held  the  property  for  the  use  of 
the  people  of  the  borough  of  Tamaqua  and  vi- 
cinity, BO  as  to  secnre  equal  rights  and  privi- 
leges to  alL 

[I]  The  persons  for  whose  use  and  benefit  this 
right  of  sepnlcher  was  granted  being  the  peo- 
ple of  the  borough  of  Tamaqua  and  vicinity,  the 
respondents  claim  that  the  complainants  are 
not  the  proper  parties  to  maintain  the  bill  in 
any  event,  because  they  are  only  a  part  of  the 
beneficiaries  named  in  the  grant,  and  that  the 
grant  to  the  people  of  Tamaqua  means  either: 
(A)  The  corporation  of  the  borough  of  Tama- 

Sna;  or  (B)  the  people  as  a  unit;  and  that 
lierefore  the  only  authority  to  bring  this  action 
would  be  the  borough  council  of  Tamaqua,  or 
the  action  by  the  majority  of  the  people  of 
Tamaqua,  acting  as  a  body.  Rule  22  of  the  Eq- 
uity Rules  of  the  Supreme  Court  provides: 
"That  where  parties  on  either  side  are  very 
numerous,  and  cannot,  without  manifest  incon- 
venience and  oppressive  delays  in  the  suit,  be 
brought  before  it,  the  court  in  its  discretion, 
may  dispense  with  making  all  of  them  parties, 
etc.  ITiis  rule  in  addition  to  the  fact  that  the 
complainants  are  the  grantees  or  heirs  of  gran- 
tees of  certain  lots  sold  to  them  by  the  re- 
spondents, gives  them  such  interest  and  rights 
in  the  premises  as  to  make  them  proper  par- 
ties to  maintain  the  bill. 

[2]  This  brings  us  to  the  main  issue,  which  is 
OB  to  whether  the  respondents  had  a  right  to 
charge  more  money  for  the  lots  and  the  right  of 
sepulcher  than  was  necessary  for  the  improve- 
ment and  maintenance  of  the  cemetery,  and. to 
use  any  or  all  of  the  surplus  money  so  received, 
for  the  benefit  of  Harmony  Lodge  in  the  erec- 
tion of  buildings  and  other  purposes  wholly  dis- 
connected from  and  forming  no  part  of  said 
cemetery. 

While  it  is  true  that  the  deed  sets  forth  that 
tlie  consideration  for  the  land  was  $226.88  for 
their  right,  title,  and  interest  In  said  land,  yet  it 
also  states,  "Eacept  as  is  hereinafter  provided," 
which  proviso  is  aa  follows:  "Reserving  out  of 
and  from  the  same,  all  mineral,  coal  and  iron, 
etc  •  •  •  It  is  further  provided,  that  the 
trae  intent  and  meaning  of  this  indenture  is  that 
the  tract  or  piece  of  land  above  described  is  ac- 
cepted on  the  express  condition  that  the  same 
shall  be  improved  and  managed  and  held  for  the 
sole  purpose  of  a  general  cemetery  for  the  use 
of  the  people  of  the  borough  of  Tamaqua  and 
%'icinity,  and  no  discrimination  shall  be  made  for 
or  against  any  portion  of  the  inhabitants,  but 
the  rules  and  regulations  of  said  cemetery  shall 
be  so  formed  as  to  secure  equal  rights  and  privi- 
leges to  all  of  whatever  sect,  denomination,  so- 
ciety, association  or  name.  In  case  the  mana- 
gers of  said  cemetery  shall  attempt  to  violate  or 
evade  this  express  provision  and  condition  the 
said  lands  herein  mentioned  and  intended,  shall 
immediately  become  vested  in  the  snid  people 
themselves  as  fully  and  effectually  as  if  they  had 
been  the  original  grantees  herein  named."  This 
reservation  includes  not  only  the  usual  mineral 


rights  incident  to  lands  in  that  locality,  but  also 
states  spedfically  tiie  purpose  of  the  grant,  and 
the  use  to  which  every  x>article  of  said  land  shall 
be  put,  limiting  that  purpose  and  use,  to  the  peo- 
ple of  the  borough  of  Tainaqua  and  vicinity. 

While  the  persons  for  whose  use  and  in  whose 
interest  this  grant  was  made  may  be  somewhat 
indefinite  by  reason  of  the  geographical  limits 
stated,  yet  the  intent,  object  and  purpose  of  the 
^antor,  as  to  what  use  shall  be  made  of  said  lot 
is  very  clearly  and  specifically  stated,  and  po«d- 
tively  limited,  and  does  in  no  way  include  Har- 
mony Lodge  as  a  beneficiary  for  the  use,  occu- 
pancy, or  enjoyment  of  any  of  the  land,  or  any 
proceeds,  increments  or  benefits  arising  out  of 
or  from  said  land,  inconsistent  with  the  provi- 
sions and  purposes  of  the  grant.  They  might  as 
well  disregard  the  coal  and  mineral  reservation 
with  the  right  to  mine,  etc.,  as  to  repudiate  the 
exception  or  covenant  running  with  the  land, 
concerning  its  use,  etc. 

The  evidence  does  not  clearly  establish  the  fact 
that  any  money  received  from  the  proceeds  of 
this  lot  has  been  appropriated  to  any  other  use 
than  the  improvement  and  maintenance  of  the 
cemetery,  as  the  testimony  shows  that  another 
tract  of  land  was  purchased,  lots  sold,  etc.,  cer- 
tain sums  of  money  received  from  a  fair  held  by 
said  lodge  and  other  sources,  and  no  account  ren> 
dered  to  show  how  much,  if  any,  of  the  moneys 
received  from  the  joint  tracts  and  other  incomes, 
was  appropriated  to  the  sole  benefit  of  Har- 
mony Liodge.  An  account,  therefore,  should  be 
rendered  of  all  moneys  received  from  and  ex- 
pended on  the  lot  granted  by  the  Little  Sehuyl- 
kill  Navigation  Railroad  &  Coal  Company,  for 
the  uses  set  forth  in  said  grant,  exclusive  of  any 
and  all  moneys  received  from  any  other  source. 
so  that  proper  disposition  may  be  made  of  all 
moneys  if  any,  that  may  have  been  improperly 
appropriated. 

The  plaintiffs  contended:  "That  the  defend- 
ants have  abused  their  trust ;  that  the  deed  above 
referred  to  only  created  a  determinable  fee,  and 
that,  upon  the  happening  of  the  event  named  in 
the  said  deed,  namely,  the  actual  failure  on  the 
part  of  the  grantees  named  in  the  deed  to  carry 
out  the  purposes  of  the  trust,  or  the  evincing  of 
an  intention  to  evade  the  trust  having  arrived, 
the  fee  would  revert  to  the  grantor,  which  was  a 
corporation,  and  is  presumably  still  in  existence, 
but  for  the  express  provision  in  the  clause  creat- 
ing the  trust  that  upon  the  misfeasance  or  mal- 
feasance of  the  trustee,  the  title  to  the  same 
should  immediately  vest  as  fully  in  the  people  of 
Tamaqua  and  vicinity  as  though  thev  had  been 
the  original  grantees  in  the  deed.  Thus  it  evi- 
dences the  intention  of  the  grantor  that  all  the 
people  of  the  borough  of  Tamaqua  and  vicinity 
were  to  share  in  the  benefits  of  this  ground,  and 
that  if  the  trustees  selected  by  the  grantor  to 
carry  out  the  purposes  of  this  tract  should  fail 
in  the  discharge  of  their  duty,  title  to  the  prop- 
erty should  not  vest  absolutely  in  such  errant 
trustees,  but  that  the  same  interest  reverting  to 
the  grantor  should  immediately  vest  in  the  peo- 
ple themselves.  We  take  it  that  the  only  way 
in  which  the  people  can  get  the  benefit  of  this 
alternative  provusion  is  by  means  of  the  appoint- 
ment of  other  trustees  by  this  court,  who  wUl, 
instead  of  diverting  the  property  from  its  prop- 
er uses,  hereafter  devote  it  to  the  proper  execu- 
tion of  the  trust  created  by  the  said  dMd." 

We  do  not  think  the  testimony  is  sufficient  to 
sustain  the  claim  "that  the  defendants  have 
abused  their  trust,"  even  assuming  that  the  de- 
fendants appropriated  some  of  the  proceeds  from 
the  sale  of  these  lots,  believing  that  they  had 
such  title  in  fee  simple,  as  made  them  the  abso- 
lute owners  to  appropriate  the  proceeds  over  and 
above  the  amount  necessary  to  carry  out  the 
purpose  of  sepulcher  as  stated  in  the  will.  It 
was  at  most  an  error  that  can  be  rectified  by 
rendering  a  full  account  of  their  transactions, 
and  refunding  all  moneys,  if  any  have  been  er- 
roneously misappropriated. 


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We  therefore  find  the  following  facta: 

First.  That  the  LitUe  SchuylkiU  Navigation 
Railroad  &  Coal  Company,  by  a  deed  dated  the 
lOth  day  of  April,  A.  D.  1865,  granted  and  con- 
reyed  in  fee  simple  to  Jamea  M.  Hadesty,  Henry 
Bnterline,  Benneville  L.  Fetherolf,  Francis  X. 
Bender,  and  William  A.  Shoemaker,  then  trus- 
tees of  Harmony  Lodge  No.  86,  a  certain  piece 
of  land  containing  15  acres  more  or  less,  situate 
in  Schuylkill  township,  with  the  usual  min- 
eral and  coal  reservation  incident  to  lands  in 
that  locality,  and  with  the  further  proviso 
that  the  true  intent  and  meaning  of  this  inden- 
ture is  that  the  tract  or  piece  of  land  above  de- 
scribed is  accepted  on  the  express  condition  that 
the  sane  shall  be  improved  and  managed  and 
held  for  the  sole  purpose  of  a  general  cemetery 
for  the  use  of  the  people  of  the  borough  of  Tam- 
aqua  and  vicinity,  and  no  discrimination  shall 
be  made  for  or  against  any  portion  of  the  inhabi- 
tants, but  the  rules  and  regulations  of  said  cem- 
etery shall  be  so  formed  as  to  secure  equal  rights 
and  privileges  to  all  of  whatever  sect,  denomina- 
tion, society,  association,  or  name.  In  case  the 
managers  of  said  cemetery  shall  attempt  to  vio- 
late or  evade  this  express  provision  and  condi- 
tion, the  said  lands  herein  mentioned  and  in- 
tended shall  immediately  become  vested  in  the 
said  people  themselves  as  fully  and  effectually  as 
if  they  had  been  the  original  grantees  herein 
named. 

Second.  The  Odd  FeUows'  cemetery  of  Tama- 
qna,  by  deed  dated  the  10th  day  of  February, 
1913,  granted  and  conveyed  to  .Tohn  F.  Boyer. 
one  of  the  plaintiffs  aforesaid,  two  lots  of 
ground,  Nos.  Ill  and  110,  being  part  of  the  land 
conveyed  to  the  trustees  of  said  Harmony  Lodge 
for  cemetery  purposes. 

Third.  That  the  trustees  of  Harmony  Lodge 
have  bought  additional,  adjoining  ground  for 
cemetery  purposes,  and  from  the  sale  of  lota 
from  both  these  said  pieces  of  ground  and  the 
proceeds  of  a  fair  and  other  sources  of  income 
have  improved  and  managed  said  tract  of  land 
for  the  purpose  of  a  general  cemetery,  for  the 
use  of  the  people  of  the  borough  of  Tamaqua  and 
vicinity. 

Fourth.  That  they  have  appropriated  part  of 
the  income  from  these  various  sources  to  the 
erection  of  a  hall  and  other  buildings,  and 
have  not  made  or  filed  separate  or  itemized  ac- 
counts of  their  receipts  and  expenditures  f<Nr 
the  various  purposes  stated. 

Fifth.  That  under  the  evidence,  we  are  unable 
to  ascertain  how  much,  if  any,  of  the  money 
received  for  the  sale  of  lots  purchased  from  the 
little  Schuylkill  Navigation  Railroad  &  Coal 
Company  was  appropriated  for  any  other  pur- 
pose than  the  improvement  and  management  of 
said  tract  of  land,  for  the  purpose  of  a  general 
cemetery  for  the  use  of  the  people  of  the  bor- 
ough of  Tamaqua  and  vicinity. 

Law. 

First  We  find  that  the  complainants  are 
proper  parties  to  maintain  this  bill. 

Second.  That  the  doctrine  of  laches  is  not  ap- 
plicable under  the  facts  shown  in  this  esse. 

Third.  That  Charles  Hodgkins  et  al.  have  not 
forfeited  their  right  to  hold  the  property  un- 
der the  terms  of  the  deed  from  the  tittle  Schuyl- 
kill Navigation  Railroad  &  Coal  Company  to 
James  M.  Hadesty  et  al.,  trustees  of  Harmony 
Lt>dge. 

Fourth.  That  said  trustees  should  give  an  ac- 
count of  all  moneys,  if  any,  received  by  them  as 
trustees,  not  appropriated  for  the  use  and  main- 
tenance of  a  general  cemetery ;  also  all  mon- 
eys so  received,  if  any,  which  they  have  appro- 
I>riated  to  the  use  of  said  lodge  for  its  own  pur- 
pose. 

Fifth.  That  the  receipts  from  the  sale  of  lots 
of  any  of  the  ground  deeded  to  them  in  the  al- 
leged  will,   as  trustees,   must  be   used  for  the 


care  and  management  of  the  cemetery,  and  in- 
vested and  kept  as  a  fund  for  the  purpose  of 
perpetually  preserving  and  keeping  the  lots  in 
proper  condition. 

Exceptions  were  subeequently  dismissed  by 
the  court  in  banc  and  the  following  decree  en- 
tered: Now,  the  8th  day  of  November,  1915,  it 
is  ordered,  adjudged,  and  decreed,  that  the  de- 
fendants be  restrained  from  appropriating  any 
money  received  from  the  sale  of  lots,  or  any 
source,  income  or  increment,  from  the  15i| 
acres  of  land  deeded  by  the  Little  Schuylkill 
Navigation  Railroad  &  Coal  Company,  to  Ed- 
ward Becker  et  al.,  as  trustees  of  Harmony 
Tjodge,  for  any  other  use  than  the  maintenance 
of  said  lot  or  any  part  thereof,  for  the  purpose 
of  aepulcher,  and  as  a  cemetery  under  the  pro- 
visions of  said  deed. 

That  the  defendants  render  a  complete,  item- 
ized account  of  all  moneys  so  received,  or  that 
may  hereafter  be  received  from  said  lots,  as 
stated,  over  and  above  the  amount  necessary 
for  the  repair  and  maintenance  of  said  piece  of 
ground ;  and  said  moneys,  with  the  accruing 
interest,  shall  be  invested  and  appropriated  from 
time  to  time,  for  the  perpetual  maintenance  and 
proper  care  of  said  piece  of  ground,  for  the  pur- 
pose of  sepulcher,  under  the  provisions  set  forth 
in  said  deed. 

Argued  before,  BROWN,  O.  J.,  and  MBS- 
TREZAT,  POTTER,  FRAZBR,  and  WAL- 
LING, JJ. 

George  M.  Roads  and  R.  J.  OraefT,  both  of 
Pottsville,  for  api)ellants.  Otto  E.  Farqubar 
and  C.  E.  Berger,  both  of  Pottsville,  for  ap- 
pellees. 

PER  CURIAM.  The  five  legal  conclusions 
of  the  learned  chancellor  below  logically  fol- 
lowed bis  five  findings  of  fact,  and,  upon 
these  findings  and  conclusions  the  appeal  Is 
dismissed,  and  the  decree  affirmed,  at  appel- 
lants' costs. 

(26T  p>.  n4) 
In  re  CONWAT'S  ESTATE. 

Appeal  of  GILROY. 

(Supreme  Court  of  Pennsylvania.     March  23, 
1917.) 

1.  WiuLB  <©=316(3)  —  Undtjb  Influence  — 
Question  for  .Turt. 

An  opportunity  for  the  exercise  of  undue  in- 
fluence is  insufficient  to  require  the  submissiott 
of  the  question  of  undue  influence  to  a  jury. 

2.  Wills  «=316(1)  —  Issux  DBViSAvrr  Vel 
NoN— Question  fob  Jubt. 

An  issue  devisavit  vel  non  is  a  matter  of 
right,  where  the  existence  of  a  substantial  dis- 
pute upon  a  material  question  of  fact  is  shown 
by  competent  evidence,  and  where  a  verdict 
against  a  will  could  be  properly  sustained  by  a 
trial  judge  the  issue  should  be  submitted  to  the 
jury;  but  where  the  trial  judge  would  feel  con- 
strained to  set  aside  a  verdict  against  the  will 
ns  against  the  weight  of  the  evidence,  there 
would  be  no  substantial  dispute,  and  the  issue  of 
devisavit  vel  non  should  be  refused. 

Appeal  from  Otphans'  Court,  Lackawanna 
COnnty. 

Elizabeth  Gllroy,  administratrix  of  the  es- 
tate of  Mary  McAndrew,  deceased,  appeals 
from  an  order  of  the  register  of  wills  refus- 
ing an  issue  of  devisavit  vel  non  In  the  es- 
tate of  Patrick  J.  Conway,  deceased.  Ap- 
peal dismissed. 


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EDELMAK  ▼.  CONNEIX 


653 


Argued  before  BROWN,  a  J.,  and  POT- 
TER, STEtWART,  FRAZER,  and  WAIi- 
LING,  JJ, 

Joseph  O'Brien,  James  J.  Powell,  and 
<%ariea  P.  O'Malley,  all  of  Scranton,  for  ap- 
pellant. M.  J.  Martin,  Charles  H.  Welles, 
J.  H.  Torrey,  David  J.  Reedy,  and  Thomas 
P.  Hoban,  all  of  Scranton,  for  appellee. 

PER  CURIAM.  [1]  Tb]fi  Is  an  appeal  from 
the  refusal  of  an  Issue  devlsavlt  vel  non. 
One  of  the  reasons  given  In  asking  for  it 
was  that  a  fraud  had  been  practiced  upon 
the  testator  by  substituting  the  paper  in  con- 
troversy at  the  time  be  signed  it  for  another 
which  had  been  drawn  for  him  as  his  last 
will  and  testament.  We  have  not  been  con- 
vinced that  the  learned  court  below  erred  in 
holding  that  the  testimony  was  "wholly  in- 
sufficient to  support  any  such  finding."  Nor 
have  we  been  convinced  that  error  was  com- 
mitted In  disposing  of  the  other  two  branches 
of  the  case,  as  to  which  the  learned  court 
said: 

"Some  ten  or  more  witnesses  were  called  by 
the  proponent  to  establish  testamentary  capacity 
of  the  decedent.  They  were  men  wbo  had  busi- 
ness dealings  with  him,  friends  and  his  neigh- 
bors, many  of  whom  had  known  him  for  years. 
They  were  in  a  position  to  hear  him  talk,  to  ob- 
serve his  actions  and  conduct,  and  note  any 
change  in  him.  Before  expressing  an  opinion  as 
to  his  mental  capacity,  they  qaalified  them- 
selves  by  stating  facts  upon  which  it  was  based, 
The  evidence  adduced  by  the  contestant  in  our 
nninion  dnes  not  show  any  impairment  of  the 
decedent's  mental  faculties,  and  there  can  be 
no  question  under  all  the  evidence  that  there  was 
any.  Therefore  the  burden  of  proof  is  upon 
the  contestant  to  show  undue  influence.  •  •  • 
On  this  branch  of  the  case  it  is  enough  to  say 
that  the  testimony  is  wholly  insufficient  to  sup- 
port a  finding  that  Mrs.  Conway  exercised  any 
influence  over  the  mind  of  the  decedent  at  the 
time  of  the  making  of  the  will.  The  most  that 
can  be  found  from  the  testimony  is  that  there 
was  an  opportunity  for  the  exercise  of  influence, 
and  this  is  held  insufficient  to  submit  to  a  jury 
in  Tyson's  Estate,  223  Pa.  596  [72  AtX.  10^]." 

[2]  "An  issue  devlsavlt  vel  non  is  a  mat- 
ter of  right,  where  the  existence  of  a  substan- 
tial dispute  upon  a  material  question  of  fact 
is  demonstrated  to  the  court  by  competent 
evidence  which,  under  the  circumstances  of 
the  case,  measures  in  probative  force  up  to 
the  requirements  of  the  law;  or,  in  other 
words,  as  the  rule  has  heretofore  most  often 
been  put,  when,  upon  a  review  of  all  the 
proofs,  a  verdict  against  the  will  could  be 
properly  sustained  by  a  trial  Judge,  the  con- 
troversy must  be  submitted  to  a  jury,  even 
though  the  Judge  should  feel  that,  were  he 
sitting  as  a  Juror,  be  would  not  draw  the  in- 
ferences or  reach  the  conclusions  contended 
for  by  the  contestants.  But  If  the  testimony 
is  such  that  the  Judge  would  feel  constrained 
to  set  aside  a  verdict  aguliist  the  will  as  con- 
trary to  the  manifest  weight  of  the  evidence, 
determined  according  to  relevant  legal  stand- 
ards, it  cannot  be  said  that  a  substantial  dis- 


pute has  arisen."  Phillips'  Est,  244  Pa.  35, 
90  Atl.  457.  "This  simple  and  only  safe  test 
Is  supported  alike  by  reason  and  authority." 
Appeal  of  Knauss  et  al..  114  Pa.  10,  20,  6  Atl. 
394.  395. 
Appeal  dismissed,  at  appellant's  costs. 


EDELMAN  et  aL  v. 


(267  Pa.  317) 
CONNELIj. 


(Supreme  Court  of  Pennsylvania.     March  28, 
1917.) 

1.  MUNTCIPAI,  COBPORATIONS  €=S>700(5)— COL- 
LISION IN  Stbeet— Neougbnck— Evidench:. 

Evidence  in  an  action  for  damages  for  in- 
jury to  an  11  year  old  boy,  struck  by  an  auto- 
mobile while  coasting  on  a  bobsled,  held  to  sus- 
tain a  judgment  for  defendant. 

2.  Neouoence  9=385(2)— Gontbibutobt  Nbo- 
LioEKCE — Child. 

The  measure  of  a  child's  standard  for  con- 
tributory negligence  is  his  capacity  to  under- 
stand and  avoid  danger,  and  he  is  required  to 
exercise  only  that  degree  of  care  which  persona 
of  like  age,  capacity,  and  experience  might  be 
reasonably  expected  to  naturally  and  ordinarily 
use  under  like  circumstances. 

Appeal  from  Court  of  Common  Pleas, 
Lackawanna  County. 

Trespass  by  Louis  Edelman,  by  bis  next 
friend,  George  Edelman,  and  George  Edel- 
man, against  James  L.  Oonnell,  to  recover 
damages  for  personal  injury.  Verdict  for 
defendant,  and  Judgment  thereon,  and  plain- 
tiffs appeal.    Affirmed. 

From  the  record  it  appeared  that  the 
street  on  whlcA  defendant  was  driving  was 
In  an  icy  and  slippery  condition.  The  evi- 
dence was  conflicting  as  to  the  speed  of  de- 
fendant's automobUe. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER,  STEWART,  FRAZER,  and  WAL- 
LING, JJ. 

R.  Ia  Levy,  C.  P.  O'Malley,  and  Leon  M. 
Levy,  all  of  Scranton,  for  appellanta  Frank 
R.  Stocker,  O.  H.  Welles,  Sr.,  and  David  J. 
Reedy,  all  of  Scranton,  for  appellee. 

PER  CURIAM.  [1]  The  injuries  for 
which  compensation  is  sought  in  this  action 
were  sustained  by  a  boy  when  he  was  11 
years  and  4  months  of  age.  With  several 
companions  be  was  coasting  on  a  bobsled, 
which  was  struck  by  an  automobile  of  de- 
fendant driven  along  a  street  intersecting  the 
one  down  which  the  boys  were  sledding, 
The  contention  of  appellant  that  the  court 
below  ought  to  have  declared  the  defendant 
guilty  of  negligence  as  a  matter  of  law  is 
utterly  untenable.  That  was  a  question  of 
fact,  to  be  determined  from  the  oral  testimo- 
ny in  the  case,  in  the  light  of  which  learned 
counsel  for  appellee  contended  below,  and 
insist  here,  that  the  trial  Judge  would  have 
been  justified  in  directing  a  nonsuit  or  a  ver- 
dict for  defendant.  Whether  the  verdict 
was  in  hie  favor  for  this  reason,  or  on  ac- 
count of  the  contributory  negligence  of  the 
boy,  does  not  appear. 


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[2]  As  to  the  standard  l^  which  the  con- 
duct of  the  boy  was  to  be  measured  on  the 
question  of  contributory  negligence,  the 
learned  trial  Judge  instructed  the  Jury,  inter 
alia,  as  follows: 

"The  measure  of  a  child's  standard  for  con- 
tributory negligence  is  his  capacity  to  under^ 
stand  and  avoid  danger.  •  •  •  The  law  as 
to  negligence  of  children  is  that  they  are  requir- 
ed to  exercise  only  that  degree  of  care  and  cau- 
tion which  persons  of  lilie  age,  capacity,  and 
experience  might  be  reasooably  expected  to  nat- 
urally and  ordinarily  use  in  the  same  situation 
and  under  like  circumstances.  *  *  *  If  you 
should  find  that  the  boy,  Louis  Edelman,  al- 
though 11  years  and  4M»  months  of  age,  was 
not  of  sufficient  intelligence  and  capacity  to  ap- 

Sredate  the  danger  and  risks  of  bis  act,  in  or- 
er  to  avoid  the  dan^r,  then  and  in  that  case 
he  would  not  be  guilty  of  contributory  negli- 
gence. *  *  •  He  was  only  required  to  exer- 
cise that  degree  of  judgment  which  boys  of  that 
age  and  of  the  same  intelligence  and  observa- 
tion would  be  required  to  exercise,  under  the 
same  circumstances  and  conditions." 

These  correct  instructions  are  all  the 
plaintiff  could  hare  asked  for,  and  they  fol- 
lowed what  we  have  repeatedly  said.  Kehl- 
er  V.  Schwenk,  144  Pa.  348,  22  Atl.  910,  13 
U  R.  A.  374.  27  Am.  St.  Rep.  633 ;  Di  Meg- 
llo  V.  Philadelphia  &  Reading  Railway  Co., 
252  Pa.  391,  9'?  Atl.  476;  Qerg  v.  Penna.  R. 
R.  Co.,  254  Pa.  316,  96  AU.  960.  The  assign- 
ments of  error  need  not  be  considered  seria- 
tim. It  Is  sufBdent  to  say  that  nothing  is 
to  be  found  in  any  one  of  them  calling  for  a 
resubmission  of  the  case  to  the  Jury. 

Judgment  affirmed. 


(2S7  Pa.  8t9) 

BICKLEY  V.  PHILADELPHIA  A  R.  RT.  CO. 

(Supreme   Court   of   Pennsylvania.     April   16, 
1917.) 

1.  Cabriebs  <S=»320(4)  —  Pebsonai,  Injtjbt  — 
Question  fob  Jubt. 

In  an  action  for  injury  to  a  passenger  on 
the  steps  of  a  railroad  car  from  the  falling  of 
some  object  where  a  workman  standing  on  the 
car  platform  was  working  at  the  ceiling  of  the 
■car,  held,  on  the  evidence,  that  whether  such 
workman  was  defendant's  employ^  was  for  the 
jury. 

2.  Cabbxebs  «=>316(1)  —  Pebsohal  Injxtbt  — 
Neolioence — Evidence. 

Elvidence  in  such  action  held  to  raise  a  pre- 
sumption of  negligence  on  the  part  of  the  defend- 
ant carrier  which  it  was  required  to  rebut. 

3.  Cabbiebs  «s»280(1),  316(1)— Passenqebs— 
Pebsonai.  Injtjbt— Pbesvuftion  of  Neoli- 
oence. 

A  carrier  mnst  exercise  the  highest  degree 
of  care  and  an  injury  to  a  passenger  caused  by 
a  defect  in  the  road,  car,  or  other  appliance  or 
by  want  of  care  on  the  part  of  the  carrier  or  its 
employes  raises  a  presumption  of  negligence 
which  the  carrier  has  the  burden  of  disproving. 

4.  Cabbiebs  €=3280(1)— Passenoebs— Enteb- 
iNO  Cab— Case  Required. 

A  carrier  of  passengers,  impliedly  inviting 
the  public  to  enter  its  cars,  must  exercise  the 
highest  degree  of  care  in  protecting  them  while 
ascending  the  steps  and  going  into  the  cars. 

5.  Cabbiebs  9=3302(2)— In  jubt  to  Passenoeb 
—Negligence. 

Where  the  circumstances  of  an  injury  to  a 
passenger  entering  a  car  showed  that  it  resulted 


from  carrier's  failure  to  exercise  proper  care  to 
protect  the  passenger,  it  was  immaterial  that  the 
injury  was  caused  by  an  unidentified  falling  ob- 
ject. 

6.  Cabbiebs  «=»347(4)  —  Personal  Iktovt  — 
Contbibutobt  Neolioence  —  Question  fob 
Jubt. 

In  an  action  for  injury  to  a  passenger  while 
ascending  the  steps  of  the  car  on  the  platform  of 
which  a  workman  was  working  on  the  ceiling, 
by  being  struck  by  unlmown  falling  object,  held 
on  the  evidence  that  passenger's  contributory 
negligence  was  for  the  jury. 

7.  Cabbiebs  €=3328(1)— Injubt  to  Passenoeb 
—Contbibutobt  negligence. 

A  passenger  entering  a  car  may  assume  that 
the  carrier  has  performed  its  duty  m  making  the 
approach  to  the  car  safe. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Mary  M.  Bickley  against  the 
Philadelphia  &  Reading  Railway  Company, 
to  recover  damages  for  personal  injury. 
From  an  order  refusing  to  take  off  a  com- 
pulsory nonsuit  plaintiff  appeals.  Reversed, 
with  a  procedendo. 

Argued  before  MESTREZAT,  POTTER, 
STEWART.  MOSCHZISEER,  and  FRAZ- 
ER,  JJ. 

Eugene  Raymond  and  John  Martin  Doyle, 
both  of  Philadelphia,  for  appellant  Wm. 
Clarke  Mason,  of  Philadelphia,  for  appellee. 

MESTREZAT,  J.  Ttiis  is  an  action  of 
trespass  to  recover  damt^es  for  injuries 
which  the  plaintiff  alleges  were  caused  by 
the  negligence  of  the  defendant  carrier  when 
she  was  entering  one  of  Its  coaches  at  the 
Reading  Terminal  station  in  the  dty  of  Phil- 
adelphia. The  learned  trial  Judge  granted  a 
nonsuit  which  the  court  refused  to  remove, 
and  the  plaintiff  has  appealed. 

The  plaintiff  was  the  only  witness  exam- 
ined, and  from  her  testimony  it  appears  that 
on  the  morning  of  February  6,  1914,  she 
went  to  the  Rending  Terminal  to  take  the 
10:15  train  for  Quakertown.  She  had  a  mile- 
age book,  and  on  her  arrival  at  the  station 
went  directly  from  the  first  to  the  second  or 
train-shed  story  of  the  building.  The  gates 
in  the  iron  grating  separating  the  train  shed 
from  the  station  proper  had  been  opened  to 
admit  passengers  to  the  train,  and  the  plala- 
tlff  entered  the  gate  on  the  east  side  and 
passed  along  the  station  platform  until  she 
reached  the  rear  end  of  the  third  car  from 
the  engine,  other  cars  of  the  train  standing 
in  the  rear  of  it.  As  she  approached  the  car, 
she  saw  the  lower  part  of  the  legs  of  a  man 
standing  on  the  car  platform.  On  ascending 
the  steps,  she  looked  up  and  saw  that  the 
man  was  dressed  in  overalls,  with  a  cap  on, 
and  was  reaching  up  and  doing  work  on  the 
celling  of  the  car.  When  she  reached  the 
first  step  below  the  platform,  she  was  "struck 
with  a  heavy  blow"  on  the  right  side  of  her 
head,  and  the  workman  said,  "Oh,  excuse  me, 
I  didn't  see  you  coming  up  the  steps,"  and 
took  hold  of  her  arm  and  put  her  in  the 


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first  seat  of  the  oar.  She  was  stunned  by 
the  blow,  and  her  bead  was  cut;  "everything 
became  black  In  front  of  me;"  her  hat  pins 
were  bent  and  broken,  her  hair  pins  and  a 
great  deal  of  ber  hair  were  torn  out.  She 
reported  the  accident  to  the  conductor  when 
he  came  for  her  fare  near  Wayne  Junction. 
She  suffered  intensely  from  the  blow,  which 
resulted  in  her  permanent  injury.  This,  in 
bri^,  is  substantially  bow  the  accident  oc- 
curred and  its  effect  on  the  plaintiff. 

While  admitting  that,  at  the  time  she  was 
injured,  the  plaintiff  was  lawfully  on  the 
premises  of  the  defendant  company  by  its 
invitation  and  as  its  passenger,  and  entitled 
to  the  highest  degree  of  care  and  foresight 
which  the  law  requires  of  a  carrier  for  pro- 
tection of  its  passengers,  the  learned  court 
below  held  that  the  burden  of  proving  negli- 
gence was  upon  the  plaintiff,  and  that  negli- 
gence would  not  be  presumed  from  the  hap- 
pening of  the  accident,  and,  further,  that  the 
plaintiff  was  guilty  of  contributory  negli- 
gence in  proceeding  up  the  steps  of  the  car  in 
spite  of  the  fact  that  she  saw  some  one  above 
her,  apparently  engaged  in  work  in  such  a 
position  that  something  might  happen  to  her 
if  she  proceeded  further. 

The  plaintiff  contends  that  she  was  a  pas- 
senger; that  if  an  accident  resulted  to  her 
from  the  instrumentalities  of  the  defendant, 
a  presumption  of  its  negligence  arose;  that 
the  blow  received  could  not  have  had  any 
other  presumptive  origin  than  in  the  opera- 
tions of  the  defendant  within  its  train  shed ; 
that  the  workman,  by  Us  remark,  assumed 
the  blame  for  the  accident,  and  he  was  pre- 
sumptively an  employ^  of  the  defendant; 
that  the  circumstances  of  the  injury  bring 
it  within  the  rule  that  whoi  Injury  results 
from  the  means  and  appliances  of  transi)orta- 
tion,  the  carrier  is  presumed  to  be  negligent; 
and  that  the  plaintiff  was  not  guilty  of  con- 
tributory negligence. 

The  defendant's  counsel  claims  that  there 
are  no  facts  upon  the  record,  as  disclosed  by 
the  evidence,  to  show  what  it  was  that  hit 
the  plaintiff,  where  it  came  from,  who  had 
control  over  It,  or  that  the  man  on  the  car 
platform  was  in  the  employ  of  the  defendant, 
and  that  the  plaintiff  was  guilty  of  contribu- 
tory negligence 

[1]  It  is  conceded  by  the  court  below,  as 
well  as  by  counsel  for  the  appellee,  as  will  be 
observed,  that  the  plaintiff  stood  in  the  re- 
lation of  passenger  to  the  carrier  when  she 
was  injured.  At  the  time  of  the  accident  the 
plaintiff  had  a  mileage  book,  and  the  defend- 
ant had  invited  her  to  enter  its  train  by  an- 
nouncing it  an'd  opening  the  gates  for  her 
and  other  passengers  to  pass  Into  the  train 
shed.  We  do  not  agree  with  the  defendant's 
contention  that  the  evidence  was  not  suffi- 
cient to  warrant  the  jury  in  finding  that  the 
man  at  work  on  the  car  platform  was  engag- 
ed in  the  company's  service.  The  testimony 
of  the  plaintiff  shows  that  i>ersons  could  not 


enter  the  train  shed  from  the  station  until 
the  gates  in  the  Iron  grating  were  opene'd  for 
that  purpose.  It  is  therefore  a  reasonable 
inference  that  any  one  within  the  train  shed 
is  there  by  permission  of  or  on  business  for 
the  defendant  The  man  on  the  car  platform 
was  wearing  overalls  and  a  cap,  and  was  en- 
gaged in  doing  work  on  the  celling  of  the 
platform.  In  addition  to  these  facts,  the  re- 
mark made  by  the  workman  to  the  plaintiff 
when  the  accident  occurred  tends  also  to 
show  that  be  was  an  employ^  of  the  defend- 
ant, and,  further,  that  his  act  while  engaged 
at  the  work  on  the  platform  celling  caused 
the  Injury  to  the  plaintiff.  We  think,  there- 
fore, that  this  evidence  was  sufficient,  not 
only  to  Justify  its  submission  to  the  Jury,  but 
also  to  warrant  the  conclusion  that  the  man 
engaged  at  work  on  the  platform  celling  was 
an  employe  of  the  defendant.  The  train  was 
awaiting  its  early  departure,  an'd  we  must 
assume  that  the  trainmen,  operating  and  In 
charge  of  it,  knew  of  the  presence  of  the  man 
who  was  doing  the  work  on  the  platform  ceil- 
ing. No  other  reasonable  inference  can  be 
drawn  from  the  facts.  It  is  not  conceivable 
that  they  would  have  permitted  the  man  to 
do  the  work  unless  they  knew  it  was  being 
done  by  direction  of  the  company.  It  Is  com- 
mon knowledge  that  car  cleaners  an'd  other 
workmen  are  frequently  engaged  about  the 
cars  Immediately  before  the  departure  of  the 
train.  We  think,  therefore,  that  the  learned 
court  below  should  have  submitted  the  evi- 
dence, bearing  on  this  question,  to  the  jury 
to  determine  whether  or  not  the  man  work- 
ing on  the  platform  was  an  employ^  of  the 
defendant.  He  was  there  apparently  by  the 
authority  of  the  company,  and  if  he  was  a 
mere  intruder  or  was  there  without  authority 
and  was  not  an  employ^  of  the  defendant, 
the  latter  knew  the  fact,  and  could  have  read- 
ily shown  it.  The  evidence  of  the  plaintiff 
was  sufficient  to  raise  a  presumption  that  the 
workman  was  in  the  service  of  the  company, 
an'd  defendant  should  have  been  required  to 
rebut  it.  The  case  of  Madara  et  ux.  v.  Sha- 
mokln  &  Mt  Carmel  Electric  Ry.  Co.,  192 
Pa.  542,  43  AU.  905,  Is  in  point  The  plaintiff 
was  a  passenger  on  a  stalled  electric  street 
car,  and  another  car,  being  brought  to  its  re- 
lief, got  beyond  control  and  collided  with  the 
stalled  car.  The  defense  was  that  the  man  la 
charge  of  the  relief  car  which  caused  the  ac- 
cident was  a  mere  Intermeddler  and  not  an 
employe  of  the  defendant  This  court  held 
that  the  evid^ice  of  the  plaintiff  was  suffi- 
cient to  require  the  defendant  to  rebut  the 
presumption  of  employment  The  court 
speaking  by  Mr.  Justice  Dean,  said  (192  Pa. 
647.  43  Atl.  996): 

"The  burden  is  on  it  [the  carrier]  to  rebut  the 
presumption  by  showing  that  Visfck  [who  was 
operating  the  relief  car]  was  a  mere  intruder  up- 
on the  relieving  car,  acting  wholly  without  au- 
thority. The  burden  is  not  upon  the  passenger 
to  prove  that  one  apparently  in  authority,  hav- 
ing access  to  the  car  barn,  and  the  power  to 


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101  ATIiANTIO  REPORTER 


(Pa. 


assume  control  of  a  car  and  ran  it  on  the  road 
to  the  relief  of  the  stalled  car,  was  a  servant  of 
the  company." 

A  like  Question  was  presented  in  Dunne  v- 
Penna.  R.  K.  Ca,  249  Pa.  76,  94  Atl.  479. 
and,  under  facta  not  as  faTorable  to  tbe 
plaintiff  as  in  the  case  at  bar,  it  was  held 
that  there  was  sufficient  evidence  to  send 
the  question  to  tbe  Jury  and  to  support  a 
finding  that  the  person  was  an  employ^  of 
the  carrier  company. 

[2]  The  plaintiff  being  a  passenger,  and  as- 
suming that  the  Jury  would  have  found  that 
the  workman  was  employed  by  the  defendant, 
we  think  the  circumstances  raised  a  presump- 
tion of  negligence  on  tbe  part  of  the  defend- 
ant company  which  It  was  required  to  rebut. 

[3, 4]  A  common  carrier  must  exercise  the 
highest  degree  of  care,  vigilance,  and  pre- 
caution in  the  transportation  of  passengers, 
and  a  legal  presumption  of  negligence  arises, 
casting  upon  the  carrier  the  onus  of  disprov- 
ing it,  when  an  injury  to  a  passenger  is  caus- 
ed by  a  defect  In  the  road,  cars,  or  any  other 
appliance,  or  by  a  want  of  diligence  or  care 
In  the  carrier  or  its  employes,  or  by  any  other 
thing  which  the  carrier  can  and  ought  to  con- 
trol as  a  part  of  Its  duty  to  carry  passengers 
safely.  Tbla  is  the  rule  established  by  our 
decisions.  Meier  v.  Penna.  R.  R.  Co.,  64  Pa. 
225,  3  Am.  Rep.  681 ;  NiebalsU  v.  Penna.  R. 
R.  Ca,  249  Pa.  630,  94  Atl.  1097;  Pern  v. 
Penna.  R.  R.  Co.,  260  Pa.  487,  95  Atl.  690. 
Safe  means  and  appliances  which  are  requir- 
ed to  be  furnished  for  the  transportation  of 
passengers  Include  the  steps,  doors,  plat- 
form, and  seats  which  constitute  a  part  of 
the  vehicle,  and  a  failure  to  keep  and  main- 
tain them  in  safe  condition,  resulting  in  in- 
jury to  a  passenger,  raises  a  legal  presump- 
tion of  negligence  which  the  carrier  must 
rebut. 

Applying  this  rule  to  the  case  in  band,  tbe 
plaintiff's  proof  showed  such  an  injury  as 
raised  a  presumption  of  negligence  on  the 
part  of  the  carrier.  The  Injury  resulted  from 
the  failure  of  the  carrier  or  Its  employes  to 
provide  safe  access  to  the  body  of  the  car. 
This  was  a  failure  of  duty,  and  ther^ore  a 
negligent  act.  The  matter  was  entirely  un- 
der the  control  of  the  carrier,  and  tbe  fail- 
ure to  protect  the  plaintiff,  while  entering 
the  car,  was  a  failure  to  carry  safely  whidi 


the  law  requires.  It  Is  immaterial  whether 
the  Injury  was  caused  by  a  fall  of  some  part 
of  the  ceiling  or  by  a  tool  or  other  object  be- 
ing used  by  tbe  workman  in  doing  his  work 
on  the  celling.  The  carrier,  having  impliedly 
invited  the  plaintiff  to  enter  the  car,  was  re- 
quired to  exercise  the  highest  degree  of  care 
and  diligence  in  protecting  her  while  she  was 
in  the  act  of  ascending  the  steps  and  going 
into  the  body  of  the  car.  The  act  which  re- 
sulted in  the  plaintiff's  injury  was  not  dis- 
connected with  her  transportation,  and  there- 
fore is  not  within  the  class  of  cases  which 
hoTd  that  the  carrier  is  not  responsible. 

[6]  It  is  immaterial  that  the  injury  was 
caused  by  an  unidentified  object,  as  the  place 
and  circumstances  of  the  accident  show 
that  it  resulted  from  the  failure  to  exercise 
the  care  required  of  the  carrier  to  protect 
the  passenger.  There  is  no  ground  for  a  sus- 
picion even  that  the  blow  received  by  the 
plaintiff  was  from  an  object  cast  from  out- 
side the  car ;  on  the  other  hand,  it  is  obvious 
that  the  object  which  caused  the  plaintiff's 
Injury  fell  from  the  celling  of  the  car  plat- 
form, or  that  the  injury  was  Infiicted  by  a 
tool  or  other  object  in  the  hands  of  tbe  man 
while  engaged  at  his  work.  His  apologetic 
remark  also  shows  that  fact,  and  that  he 
knew  what  did  strike  and  cause  the  Injury 
to  the  plaintiff.  The  evidence  In  the  case 
shows  that  the  injury  was  due  either  to  a  de- 
fect In  the  car  or  some  appliance  thereof  or 
to  something  done  or  omitted  In  the  conduct 
and  management  of  the  business,  aiM  there- 
fore raises  a  presumption  of  negligence  cm  the 
part  of  the  defendant  carrier. 

[8, 7]  Whether  or  not  the  plaintifl  was 
guilty  of  contributory  negligence  was  clearly 
for  the  jury.  As  she  approached  tbe  car  she 
saw  the  legs  of  the  man  standing  on  tbe  car 
platform,  but,  as  she  testifies,  she  did  not 
see  that  he  was  at  work  until  she  had  reach- 
ed the  second  step  where  she  received  her 
injury.  She  had  the  right  to  assume  that  the 
carrier  had  performed  its  duty  in  making 
the  approach  to  the  car  safe,  but  whether 
the  workman's  presence  on  the  car  platform 
was  an  Indication  of  danger  and  she  should 
have  entered  another  car  were  questions  to 
be  determined  by  the  Jury. 

The  judgment  is  reversed,  with  a  proce- 
dendo. 


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Conn.) 


MILLS  T.  DAVIS 


657 


(M  Conn.  IH) 

MILLS  V.  DAVIS  et  aL 

(Supreme  Court  of  Errors  of  Connecticut.    Aug. 
2,  1917.) 

1.  Appeal   and    Ebboe   «=»65C(3)— Rbcobd— 
Correction  or  Finding. 

On  the  refusal  of  the  trial  judge  to  change 
tho  finding  in  a  case  tried  before  a  jury,  the 
proper  procedure  was  an  application  to  the  Su- 
preme Court  of  Errors  to  rectify  the  appeal,  un- 
der Oen.  St.  1902,  §  801,  authorizing  such  an 
application,  and  providing  that  it  shafl  be  heard 
on  depositions. 

2.  Appeal  and  Erbob  ®=>576  —  Findinos  — 
Maiters  to  be  Included. 

T.'nder  the  rules  of  practice  of  the  Supreme 
Court  of  Errors,  specifying  forms  for  findings, 
the  court  in  cases  tried  without  a  jury  is  re- 
quired to  state  the  facts  proved  by  the  evidence, 
and  in  cases  tried  by  a  jury  the  facts  which  die 
parties  offer  evidence  to  prove,  and  claim  to 
have  proved. 

3.  Appeal  and  Ebbob  €=9656(3)  —  Recobd  — 
cobbection  of  findino. 

In  causes  tried  to  a  jury,  if  the  trial  judge 
on  an  appeal  fails  to  insert  in  the  record  a 
statement  of  the  facta  either  party  offered  evi- 
dence to  prove,  and  claimed  to  have  proved,  or 
indudea  a  fact  as  claimed  to  have  been  proved, 
when  there  was  no  evidence  offered  to  prove 
it,  the  proper  procedure  is  an  api>lication  to  the 
Supreme  Court  of  Errors  to  rectify  the  appeal, 
by  inserting  the  statement  in  the  one  case  or 
•trildng  it  out  in  the  other. 

4.  Afpeai.  AMD  Ebbob  €=s>656(3)  —  Reoobd  — 

COBBBCTION   OF  FINDING. 

If  a  party  desires  to  have  any  fact  admit- 
ted by  the  adverse  party  appear  upon  the  rec- 
ord as  admitted,  and  which  the  trial  judge  has 
omitted,  he  should  move  to  insert  it,  and,  upon 
the  refusal  of  the  judge  to  grant  the  motion, 
apply  to  the  .Supreme  Court  of  Errors,  under 
Gen.  St.  1902,  §  801. 

5.  Appeal  and  Bbbob  «s>576  —  Findino— 

FOBM. 

Where  statements  of  fact  in  the  appellant's 
draft  finding  were  not  admitted  facts,  and  were 
not  proved  by  uncontradicted  evidence,  and  the 
trial  judge  stated  in  the  finding  that  app^ant 
offered  evidence  to  prove  facts,  this  was  all 
appellant  could  properly  claim. 

6.  B'baud  <S=>49— Actions  fob  Fraud— Evi- 
dence Advissiblb  undeb  Pleadings. 

Defendants  were  attorneys  for  plaintilf  in 
a  suit  to  foredoee  a  mortgage,  and  effected  a 
settlement.  They  furnished  the  funds  to  con- 
summate the  settlement,  and  took  a  conveyance 
from  plaintiff  of  the  mortgaged  proper^  and 
property  on  A.  street.  Plaintiff  sued  for  deceit, 
alleging  that  defendants  falsely  represented  tiiat, 
if  sho  did  not  convey  the  land  on  A.  street,  the 
holder  of  the  mortgage  would  take  a  deficiency 
judgment,  and  take  that  property  and  her  home- 
stead also,  when  in  fact  the  holder  of  the  mort- 
gage never  intended  to  take  a  deficiency  judg- 
ment. JSeld,  that  evidence  as  to  whether  the 
foreclosure  could  have  been  defeated  by  making 
a  defense  was  immaterial,  unless  it  was  part 
of  a  plan  to  cheat  and  defraud,  and  under  the 
pleadings  it  was  irrelevant  for  that  purpose. 

7.  Appeal  and  Ebbob  €='1056(4)— Habuless 
Ebbob— Etfect  of  Verdict. 

In  an  action  for  deceit,  the  exclusion  of  a 
question  asked  plaintiff  as  to  expenditures  by 
her  in  the  prosecution  of  the  action  was  harm- 
less, where  the  jury  found  for  defendants,  and 
never  passed  on  the  qaestion  of  damages. 

8.  JUDOMBNT       «=s>708      —       Admissibilitt 
AOAIMST  PBBSONS  NOT  PABTIES. 

In  an  action  against  plaintiff's  former  at- 
torneys in  a  foreclosure  suit  for  deceit  in  con- 


nection with  t>  settlement  of  such  suit,  the. rec- 
ord of  an  action  to  which  defendants  wero  not 
parties,  and  of  which  they  bad  no  knowledge, 
was  not  admissible  to  show  the  value  of  the 
mortgaged  property  as  found  in  such  former  ac- 
tion. 

9.  Tbial   €=s280(l)— lN8TBncrnoN»— Kefubal 
OF  Requests  Covebed  bt  the  Chabok. 

Requests  to  charge  were  properly  refused, 
where  they  were  covered  by  the  charge,  so  far 
as  they  could  be  lawfully. 

10.  Tbial   ig=»317— Misconduct   of   Jueob— 
Waiver  of  Objections. 

An  objection  to  the  misbehavior  of  a  juror 
was  waived,  when  not  called  to  the  attention  of 
the  court  at  the  time. 

Appeal  from  Court  of  Common  Pleas, 
Fairfield  County;  John  R.  Booth,  Acting 
Judge. 

Action  by  Elizabeth  F.  Mills  against  Leo 
Davis  and  another.  Judgment  for  defend- 
ants, and  plalntur  appeals.    Affirmed. 

Joseph  A.  Gray,  of  South  Norwalk,  for 
appellant  Oirl  Foster,  of  Bridgeport,  for 
appellees. 

SHUMWAT,  J.  The  defendants  are  law- 
yers. Beers  was  first  engaged  by  the  plain- 
tiff to  represent  her  in  an  action  brought 
to  recover  the  sum  due  on  a  note  given  by 
the  plaintiff  to  one  Hoyt  The  note  was 
secured  by  a  mortgage  uiion  a  piece  of  real 
estate  called  Sound  View  Terrace.  The  note 
and  mortgage  were  held  by  one  Hubbell,  he 
taking  title  to  same  by  assignment  LateF 
Enbbell  brought  an  action  to  foreclose  the 
mortgage,  and  the  defendants  appeared  as 
counsel  for  Mrs.  Mills,  this  plaintiff.  The 
latter  action  was  pending  In  the  court  of 
common  pleas  In  Fairfield  county,  and  on 
March  7, 1913,  judgment  was  rendered  in  the 
foreclosure  action;  the  (tourt  finding  the 
sum  of  $1,609.42  due.  Including  costs.  On 
the  day  before  the  judgment  was  rendered  a 
written  stipulation  was  made  between  coun- 
sel for  Hubbell  and  Mrs.  Mills  that  three 
appraisers  should  be  appointed  to  appraise 
the  property  as  required  by  statute  prelimi- 
nary to  the  rendition  of  a  deficiency  Judg- 
ment. Before  the  appraisal  was  had,  the 
parties  through  their  counsel  made  a  settle- 
ment, whereby  the  sum  of  $772.80  was  to  be 
paid  to  Hubbell,  and  he  was  to  release  Mrs. 
Mills  from  all  obligation  on  the  note  and 
mortgage.  Mrs.  Mills  was  not  able  to  fur- 
nish the  money  to  pay  Hubbell.  The  de- 
fendants supplied  the  funds  to  make  the  pay- 
ment, and  thereupon' Mrs.  Mills  conveyed  to 
the  defendants  the  Sound  View  Terrace  prop- 
erty and  a  piece  of  land  called  the  Aiken 
street  property.  The  defendants  offered  evi- 
dence that  the  value  of  Sound  View  Terrace 
was  $2,000,  subject  to  a  mortgage  for  $1,- 
400.  The  Aiken  street  property  was  control- 
led by  Mrs.  Mills,  though  she  did  not  hold 
the  legal  title,  and  she  procured  the  neces- 
sary conveyance  to  vest  the  legal  title  In  the 
defendants.    The  plalntifTs  case  Is,  In  snb- 


tfoFor  other  eases  see  same  topic  and  KET-NUUBBR  In  all  Ker-Numb«red  Digesto  and  IndexM 
101  A.— 42 


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101  ATLANTIC  RBPOUTER 


(Conu. 


stance,  that  the  defendants  by  fraud  and  de- 
celt  induced  the  plaintiff  to  make  the  set- 
tlement above  mentioned  to  their  profit. 

The  particular  acts  as  alleged,  which  the 
plalntlfT  claims  constitute  fraud,  are  sub- 
stantially these:  The  plaintiff  met  the  de- 
fendants on  the  15th  day  of  April,  1913, 
when  the  defendants  Insisted  that  the  plain- 
tiff convey  to  Hubbell  the  Aiken  street  lot 
The  plaintiff  refused,  but  the  defendants 
falsely  represented  that,  if  she  did  not  con- 
vey the  land  to  Hubbell,  he  would  take  a 
-deficiency  Judgment  against  her,  and  take 
that  lot  and  her  homestead  also.  In  fact, 
HiAbell  never  intended  to  take  a  deficiency 
Judgment,  and  was  content  to  take  the  Sound 
View  Terrace  in  satisfaction  of  the  mort- 
gage. The  defendants  denied  these  allega- 
tions, and  alleged  affirmatively  that  the 
plaintiff  agreed  to  the  settlement  and  con- 
veyed the  property  to  them,  to  pay  them  for 
the  money  advanced  to  pay  Hubbell,  as  well 
as  for  their  fees  and  disbursements  In  the 
action  mentioned.  The  case  was  tried  to  the 
Jury,  and  the  court  Instructed  them  that,  if 
they  found  the  allegations  of  the  plaintiff  to 
be  true,  their  verdict  should  be  In  her  fa- 
vor. The  Jury  rendered  a  verdict  for  the 
defendants.  On  appeal  the  plaintiff  assigns 
numerous  errors  relating  to  rulings  on  evi- 
dence, the  charge  of  the  court,  the  court's 
refusal  to  correct  the  finding,  and  the  court's 
refusal  to  take  the  case  away  from  the  Jury 
for  misconduct  of  one  of  the  Jurymen. 

[1,2]  The  plaintiff  made  a  motion  to  the 
trial  Judge,  which  was  entitled  "a  motion  to 
correct  the  finding."  On  the  refusal  of  the 
trial  Judge  to  change  the  finding,  the  proper 
procedure  was  an  application  to  this  court 
to  rectify  the  appeal.  If  the  Judge  had  not 
correctly  stated  the  events  of  the  trial. 
Section  801  of  the  General  Stotutes  provides 
how  an  issue  of  fact  may  be  raised  as  to  the 
corrections  of  a  statement  in  a  finding  of 
what  occurred  upon  the  trial,  and  a  way  Is 
provided  for  determining  that  Issue  of  fact. 
Bemler  v.  Woodstock  Agricultural  Society, 
88  Conn.  562,  92  Atl.  160.  The  draft  finding 
accompanying  the  plaintiff's  request  for  flnd- 
'  Ing  began  as  follows: 

"The  following  are  admissions  and  undisputed 
evidenc*  made  and  produced  upon  the  trial." 

In  the  rules  of  practice  of  the  Supreme 
-Court  of  Errors  are  given  forms  for  findings 
in  cases  tried  by  the  Jury  and  in  cases  tried 
by  the  court  In  the  former  the  court  is  re- 
quired to  state  the  facts  which  the  parties 
offered  evidence  to  prove,  and  claimed  to 
have  proved,  and  in  the  latter  the  facts  prov- 
ed by  the  evidence.  "In  making  up  the 
record  the  services  of  the  trial  judge  will 
be  clerical  rather  than  Judicial.  His  object 
will  be  to  state  for  the  record  snch  facts  and 
events  as  may  have  led  up  to  the  Judgment, 
nrid  as  are  necessary  to  show  whether  the 
iippellant  Is  right  or  wrong  in  claiming  that 
the  law  has  been  tran.<igressed,  to  his  Injury," 
(luring  tlie  trial  of  the  cause.    He  acts  as  an 


historian.     State  ▼.  Hunter,  73  Conn.  444,  47 
Atl.  665. 

[3]  In  causes  tried  to  the  Jury,  if  the  trial 
Judge  on  an  appeal  fails  to  insert  in  the  rec- 
ord a  statement  of  the  facts  either  party  of- 
fered evidence  to  prove,  and  claimed  to  have 
proved,  or  if  he  includes  in  the  finding  a  fact 
as  claimed  to  have  been  proved,  when  there 
was  no  evidence  offered  to  prove  it  the  prop- 
er procedure  is  an  application  to  this  court 
to  rectify  tlie  appeal  by  inserting  the  state- 
ment in  the  one  case  or  by  striking  it  out  hi 
the  other.  McKusker  v.  Spier,  72  Conn.  030, 
45  Atl.  1011. 

[4,  5]  If  the  plaintiff  desired  to  have  any 
fact  admitted  by  the  defendants  api)ear  upon 
the  record  as  such,  and  which  the  trial  Judge 
had  omitted,  he  should  have  made  a  motion 
to  insert  it,  and  upon  the  refusal  of  the  judge 
to  grant  the  motion  section  SOI  points  out  the 
manner  by  which  the  desired  change  may  be 
accomplished  in  this  court.  Some  of  the 
statements  of  fact  in  the  plaintiff's  draft 
finding  were  not  admitted  facts,  nor  were 
they  proved  by  uncontradicted  evidence.  The 
trial  Judge  had  stated  in  the  finding  that  the 
plaintiff  offered  evidence  to  prove  them, 
which  is  all  the  plaintiff  can  properly  claim, 
unless  they  were  facts  admitted  by  the  de- 
fendants. The  plaintiff  is  not  entitled  to  a 
rectification  of  the  appeal  in  this  court 

H]  The  rulings  of  the  court  upon  the  evi- 
dence, so  far  as  appears  upon  the  record, 
were  not  erroneous,  so  as  to  justify  a  re- 
versal or  setting  aside  of  the  Judgment  The 
fact  to  be  proved  In  the  plaintlfTs  case, 
whereby  to  test  the  relevancy  of  the  evidence, 
was  the  fraud  and  deceit,  or  as  it  is  called 
the  quo  animo,  of  the  defendants,  whereby 
the  plaintiff  suffered  injury.  It  appeared  in 
evidence,  not  uncontradicted,  to  be  sure,  that 
the  settlement  made  with  Hubbell  was  a  fair 
and  reasonable  one,  consented  to  and  ap- 
proved by  the  plaintiff.  The  plaintiff.  In  the 
cross-examination  of  Davis,  asked  him  if 
he  did  not  know  that  Mrs.  Mills  bad  a  valid 
defense  to  the  foreclosure  suit  brought  by 
Hubbell.  The  purpose  of  the  question  does 
not  appear.  It  may  have  been  Intended  to 
elicit  from  Davis  an  admission  that  by  mak- 
ing a  defense  to  Hubbell's  action  it  could  have 
been  defeated.  This  was  immaterial,  unless 
it  was  In  fact  a  part  of  a  plan  to  cheat  and 
defraud ;  but  under  the  pleadings  in  the  case 
it  was  irrelevant  for  that  purpose. 

[7]  The  ruling  of  the  court  in  excluding  the 
questions  put  to  Mrs.  Mills  was  not  Injarlous 
to  her  case.     She  was  asked:    "What  ex- 
penditures have  you  made  in  the  prosecution 
of  this  case?"    Upon  objection  by  the  defend- 
ants, counsel  stated  the  purpose  was  to  prove 
damage.    It  does  not  appear  that  the  plaintiff 
was  attempting  to  prove  exemplary  damages, 
or  that  the  ruling  of  the  court  was  that  the 
evidence  was  not  admissible  for  that  purpose: 
i  but  it  Is  left  to  conjecture  that  such  was  Its 
I  imri>oso,  ns  lie  plaintiff  cites  on  the   l>rier 
I  Xoyes  V.  Ward,  19  Conn.  250.    As  the  verdict 


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Conn.)  COHN  &  KOTH  ELECTRIC  CO.  r,  BRICKLAYERS',  BTa,  LOCAL  IT.  NO.  1      65* 


of  the  jary  was  In  favor  of  the  defendants, 
tbey  were  not  required  to  consider  tbe  ques- 
ti<Mi  of  damages. 

[8]  The  pladntlfT  offered  in  evidence  the 
record  of  an  action  bronght  by  Hoyt,  the  per- 
son to  whom  the  note  and  mortgage  on 
Sound  View  Terrace  was  given.  The  action 
was  brought  by  Hoyt  against  Hubbell  and 
one  Stuart,  alleging  the  note  had  been  wrong- 
fully converted  by  them.  Among  other  facta 
foond  In  that  action  was  that  the  i5ound 
View  Terrace  property  was  not  worth  more 
than  $2,200,  and  the  plaintiff  claimed  this 
finding  of  value,  If  not  conclusive,  was  evi- 
dence of  the  value  of  Hubbell's  claim.  It  la 
sufficient,  to  support  the  ruling  of  the  court 
In  excluding  the  record,  that  nether  of  these 
defendants  were  parties  to  that  action,  and  so 
tax  as  appears  had  no  Icnowledge  whatever 
of  the  pendency  of  the  cause. 

[I]  All  the  requests  of  the  plaintiff  to 
charge  were  covered  by  the  charge,  so  far  as 
could  be  lawfully,  and  the  real  and  de<^sive 
Issues  in  the  case  were  fairly  stated  to  the 
Jury,  and  the  controverted  facts  left  for  their 
determination. 

[10]  The  plaintiff  also  complains  that  the 
court  erred  in  refusing  to  dismiss  the  Jury 
from  further  consideration  of  the  case  after 
the  conclusion  of  the  argument,  because  dur- 
ing the  argument  of  pla'intlff's  counsel  one  of 
the  jurymen  was  offensive  and  insolent.  The 
violation  of  propriety  could  not  have  been 
open  and  flagrant,  to  have  passed  unnoticed 
by  the  court  The  behavior  of  the  juror  did 
not  necessarily  imply  hostility  to  the  plsfln- 
tiff  or  her  cause.  The  court  could  probably 
see  that  no  harm  could  result  to  the  plain- 
tiff's case.  The  occurrences  noticed  by  coun- 
sel earlier  In  the  trial  should  have  been  call- 
ed to  the  attention  of  the  court  at  the  time 
they  were  observed ;  otherwise  a  waiver  of 
objection  will  be  presumed. 

There  is  no  error.  The  other  Judges  con- 
curred. 

(92  Conn.  lO) 

COHN  &  ROTH  ELECTRIC  CO.  v.  BRICK- 
LAYERS',   MASONS'   &   PLASTERERS' 
LOCAL  UNION  NO.  1  et  al. 

(Supreme  Court  of  Errors  of  Connecticnt. 
Aug.  2,  1S17.) 

i.  ToBTs  9=»10  —  Interfebekcb  with  Em- 
PLOYUENT— Right  to  Stbike. 
Individuals  may  work  for  whom  tbey  please, 
and  quit  work  when  tbey  please,  providinf?  they 
do  not  violate  their  contract  of  employment. 

2.  ToBTB  9=»10  —  Combination  —  Riqht  to 

COMBIRK 

Members  of  unions  may,  by  agreement,  re- 
fuse to  woric  with  nonunion  labor,  providing 
they  do  lo  for  their  own  interest,  and  not  for 
the  primary  purpose  of  injurini;  others,  and  the 
means  used  are  not  prohibited,  nor  contrary  to 
public  policy. 

3.  Injunction    «=»101(1)    —    Intebfekknck 

WITH   ElfPLOTMENT — PbIMA  FaCIE  CaSE. 

Where  an  employer  of  nonunion  labor  is 
injured  by  refusal  of  nni'>n  workmen  to  work 
on  the  job  where  nonunion  men  arc  employed, 


such  injury  being  contemplated  and  intended 
by  defendants,  he  is  entitled  to  an  injunction' 
against  such  action  on  their  part,  unless  they 
can  show  justification. 

4.  Tobts  $s»10  —  Combinations  —  Right  to- 
Combine. 

Members  of  unions  may,  by  agreement,  re- 
fuse  to  work  with  nonunion  labor,  where  object 
is  strengthening  of  their  union,  and  not  to  in- 
jure the  plaintiff,  or  nonunion  men  it  employs, 
though  they  are  inddentaliy  injured  thereby. 

5.  Tobts  ®=»1(>— Right  to  Stbikb— Compul- 
sion. 

Members  of  unions  do  not,  by  refusing  to 

work  with  nonunion  labor,  exercise  compulsion 
on  employer  of  such  labor,  where  over  one-third' 
of  the  men  in  that  locality  in  all  trades  to  which 
defendants  belong  are  nonunion  men. 

6.  Tobts  ©=10— Right  to  Stbike — Statute- 
Intimidation. 

Notification  by  union  men  to  building  con- 
tractors and  owners  that  they  will  strike  in 
case  nonunion  labor  is  employed  on  any  job  on 
which  they  are  engaged  is  lawful,  if  strike 
would  be  lawful,  and  not  within  intimidation 
statute  (Gen.  St.  1902,  §  1296). 

Appeal  from  Superior  Court,  Hartford. 
County;   Milton  A.  Shumway,  Judge. 

Action  by  Cohn  &  Roth  Electric  Company 
against  the  Bricklayers',  Masons'  St  Plaster- 
ers' Local  Union  No.  1  and  others.  From. 
judgment  for  defendants,  plaintiff  appeals. 
Allirmed. 

Suit  for  an  injunction  to  restrain  the  de- 
fendants from  intimidating  by  strikes,  threats 
of  strikes,  boycotts,  or  otherwise  any  prop- 
erty owner,  builder,  or  contractor,  for  the- 
purpose  of  Inducing  the  latter  to  cancel  con- 
tracts with  the  plaintiff,  which  conducted  an 
open  shop,  or  for  the  purpose  of  inducing 
them  to  refrain  from  thereafter  employing, 
or  from  entering  into  contracts  with,  the 
plaintiff. 

Ralph  O.  Wells,  of  Hartford,  for  appellant 
Thomas  J.  Spcllacy,  William  M.  Maltbie,  and 
Hugh  M.  Alcorn,  all  of  Hartford,  for  appel- 
lees. 

WHEEILEB,  J.  mie  plaintiff  has  waived 
its  claim  for  damages,  and  relies  upon  Its 
claim  for  injunctive  relief,  alleging  that  the 
defendant  lalK>r  unions  and  the  members 
thereof  have  combined  for  the  purpose  of  ob- 
taining a  monopoly  of  all  the  employment 
for  the  members  of  these  local  unions  in  the- 
se veral  building  trades  in  which  they  are  en- 
gaged, and  for  the  purpose  of  excluding  from 
such  employment  all  who  are  not  members. 
In  furtherance  of  this  purpose  and  to  e8> 
tablish  this  monopoly,  the  defendants  have- 
agreed:  (1)  That  no  nonunion  member  shall 
be  employed  on  any  building  In  Hartford  or 
its  vidnity ;  (2)  that  no  open  shop  employer 
shall  be  permitted  to  supply  any  labor  or 
materials  for  any  such  building;  (.3)  that 
they  will  compel  all  owners,  employers,  and 
other  persons  to  refuse  to  purchase  supplies 
from  open  sliop  employers ;  (4)  that  they  will 
refuse  to  work  for  any  owner  or  employer  who 


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101  ATLANTIC  UEPOUTEB 


(Cona 


shall  purchase  supplies  from  any  open  shop 
employer;  (5)  that  they  will  boycott  all  non- 
union members  and  open  shop  employers, 
and  all  persons  doing  business  with  them. 
In  furtherance  of  said  boycott  the  defend- 
ants have  agreed:  (6)  To  cause  all  members 
of  defendant  unions  to  refuse  to  work  on 
every  building  owned  by  any  person  who 
owns  any  building  on  which  any  nonunion 
member  is  employed,  or  on  which  any  open 
shop  employer  is  furnishing,  or  has  contracted 
to  furnish,  laW)!'  or  materials ;  (7)  to  refuse  to 
work  on  each  i  ml  every  job  on  which  a  gener- 
al contractor  may  be  engaged,  if  any  non- 
union member  is  working  for  such  general 
contractor,  or  If  any  open  shop  contractor 
is  furnishing  or  has  contracted  to  furnish 
any  labor  or  materials.  In  furtherance  of 
these  purposes  and  agreements  the  defend- 
ants have  boycotted  the  plaintiff  and  all 
owners  for  whose  buildings  the  plaintiff  has 
furnished  labor  or  materials,  and  all  contrac- 
tors or  builders  by  whom  the  plaintiff  has 
been  employed,  directly  or  Indirectly,  and 
have  threatened  to  Institute  strikes  of  all 
these  members  on  all  work  on  which  any  of 
the  members  were  engaged  for  any  owner  or 
by  any  contractor  for  whom  the  plaintiff  has 
furnished  labor  or  materials,  and  the  defend- 
ants have  Instituted  strikes  in  accordance 
with  these  threats  in  all  cases  where  their 
demands  have  not  been  promptly  complied 
with. 

Comparing  the  facta  found  with  those  al- 
leged in  the  complaint,  we  find  a  marked 
dissimilarity.  We  can  discover  no  finding 
of  the  illegal  purpose  of  these  defendants 
which  the  complaint  reiterates,  nor  one  of  a 
conspiracy  and  agreement  such  as  Is  alleged 
save  in  one  particular.  That  agreement  Is 
not  specifically  found,  but  It  Is  found  that 
the  several  defendant  local  unions  have 
adopted  the  same  or  analogous  by-laws  ob- 
ligatory upon  all  of  their  members.  These 
by-laws  prohibit  members  working  with  non- 
union men  under  penalty  for  violation.  They 
provide  that  "no  member  shall  work  for  any 
employer  who  Is  employing  nonunion  •  •  • 
workers,"  nor  on  any  Job  contracted  for  by 
any  nonunion  contractor,  nor  on  any  job 
sublet  to  any  contractor  by  any  open  shop  or 
nonunion  contractor.  The  Hartford  Build- 
2ltg  Trade  Alliance  has  adopted  a  by-law,  of 
which  Alliance  all  defendant  unions  are 
members,  and  by  which  by-law  all  defendants 
are  bound,  that  "no  member  of  this  Alliance 
shall  work  with  any  person  working  at  a 
trade  In  the  Structural  Building  Trades  Al- 
liance who  does  not  hold  a  working  card 
from  the  AUlance."  These  by-laws  create  an 
agreement  on  the  part  of  these  several  unions 
and  all  of  their  members,  binding  upon  them, 
that  their  members  will  not  work  for  any  em- 
ployer employing  nonunion  men  on  that  Job, 
itor  for  any  nonunion  contractor,  nor  on  any 
Job  sublet  to  any  contractor  by  any  open 
shop  or  nonunion   contractor.-     Interpreted 


together,  these  several  by-laws  constitute 
an  agreement,  which  membership  Imposed  up- 
on all  members  of  defendant  unions,  that 
they  would  not  work  on  any  job  on  whlcn 
nonunion  men  or  employers  are  at  work. 
All  members  of  defendant  unions  have  ceased 
to  work  and  refused  to  work  on  any  build- 
ing when  the  nonunion  employ&s  of  the  plain- 
tiff have  commenced  work  on  such  building. 
In  one  instance  the  merat>ers  of  the  defendant 
unions  withdrew  from  work  on  five  buildings 
being  erected  by  a  single  general  contractor 
because  the  plalntifTs  nonunion  employ^ 
were  at  work  on  one  of  these  buildings.  The 
defendants  maintain  their  legal  right  to  do 
these  acts,  and  threaten  and  intend  to  con- 
tinue in  such  course,  unless  restrained  by 
injunction. 

The  case  set  up  In  the  complaint  Is  not  the 
agreement  to  cease  work  for  a  contractor 
If  nonunion  men  are  employed  by  him  on  any 
of  his  jobs,  and  no  matter  where  located, 
upon  which  defendants  are  not  at  worli,  and 
to  which  they  have  no  relation;  and  If  the 
complaint  did  rely  upon  this  cause  of  action 
the  finding  does  not  support  It  It  recites 
that,  in  one  Instance,  the  members  of  defend- 
ant unions  ceased  work  on  five  buildings  In 
process  of  erection  by  one  contractor,  becanse 
plaintiff's  nonunion  employes  were  at  work 
on  one  of  these  buildings.  A  single  Instance 
of  one  act  done  would  hardly  permit  a  hold- 
ing that  the  trial  judge  had,  in  refusing  an 
injunction,  exercised  his'  discretion  Improper- 
ly. It  Is  noticeable  that  the  finding  does 
not  state  that  these  strikes  were  instituted 
for  any  of  the  unlawful  purposes  so  frequent- 
ly reiterated  in  the  complaint.  The  trial 
court  could  not  find  the  existence  of  an  illegal 
purpose  without  proof,  and  we  cannot  so 
hold  without  a  finding  to  that  effect  If  the 
purpose  of  the  strikes  was  Illegal,  they  were 
clear  deprivations  of  the  right  of  the  plain- 
tiff to  work.  State  v.  GUdden,  55  Conn.  47. 
S  Atl.  890,  3  Am.  St  Rep.  23.  If  the  pur- 
pose was  to  better  the  condition  of  the  de- 
fendants, a  situation  Is  presented  not  here- 
tofore considered  by  us,  viz.  a  determina- 
tion of  whether  an  agreement  to  strike  In  a 
case  in  which  the  striking  worlonen  are  not 
concerned  in  a  trade  dispute,  or  In  which 
their  labor  has  not  come  In  competition  with 
nonunion  labor.  Is  lawfuL  Its  decision  is 
practically  another  phase  of  the  question 
decided  In  Pickett  v.  Walsh,  192  Mass.  582, 
78  N.  E.  753,  6  li.  R.  A.  (N.  S.)  1067,  116  Am. 
St.  Rep.  272,  7  Ann.  Caa,  638,  In  the  last  point 
treated  In  that  case,  and  the  first  and  second 
causes  of  action  set  forth  in  the  complaint 
pages  579.  587  of  the  opinion.  We  express 
no  opinion  upon  this  point,  leaving  its  de- 
cision open  until  It  Is  fairly  raised  In  the 
pleadings  and  in  the  record  on  appeal. 

[1]  The  agreement  of  the  defendant  unions 
and  their  members,  that  the  members  would 
refuse  to  work  with  nonunion  men,  followed 
by  action  by  the  members  ceasing  to  work 


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661 


with  the  nonunion  men  of  the  plaintiff,  is 
the  only  ground  of  complaint  which  the  facts 
found  support  Individuals  may  work  for 
whom  they  please,  and  quit  work  when  they 
please,  provided  they  do  not  violate  their 
contract  of  employment. 

[2]  ComblnationB  of  individuals  have  sim- 
ilar rights,  but  the  liability  to  injury  from  the 
concerted  action  of  numbers  has  placed  upon 
their  freedom  to  quit  work  these  additional 
qualifications:  That  their  action  must  be  tak- 
en for  their  own  interest,  and  not  for  the  pri- 
mary purpose  of  injuring  another  or  others, 
and  neither  in  end  sought,  nor  La  means  adopt- 
ed to  secure  that  end,  must  it  be  prohibited  by 
law  nor  in  contravention  of  public  i>ollcy. 
Connors  v.  OonnoUy,  86  Conn.  Wl,  86  AU.  600, 
45  L>.  R.  A.  (N.  S.)  564,  is  an  example  of  an 
agreement  wliicfa  we  hold  to  be  contrary  to 
puUlc  policy.  The  members  of  a  union,  act- 
ing upon  their  agreement,  may  refuse  to 
enter  upon  employment  with  nonunion  labor, 
or  refuse  to  continue  their  employment  with 
nonunion  labor,  provided  their  action  does 
not  fall  within  the  qnallflcations  of  their 
freedom  of  action  already  stated.  Pickett  v. 
Walsh,  192  Mass.  572,  582,  78  N.  B.  753,  6 
L.  B.  A.  (N.  S.)  1067,  116  Am.  St  Rep.  272, 
7  Ann.  Cas.  638;  Bumham  v.  Dowd,  217 
Mass.  361,  356,  104  N.  B.  841,  51  L.  R.  A. 
(N.  S.)  778;  Grassl  Contracting  Co.  v.  Ben- 
nett, 174  App.  DlT.  244,  160  N.  Y.  Supp.  284; 
Gray  t.  Building  Trades  Council,  91  Minn. 
171,  186,  97  N.  W.  663,  63  Ij.  R.  A.  753,  103 
Am.  St.  Rep.  477,  1  Ann.  Cas.  172.  In  State 
V.  Stockford,  77  Conn.  227,  237,  58  AU.  769, 
107  Am.  St.  Rep.  28,  Hall,  J.,  thus  states 
our  law: 

"Workmen  may  lawfully  combine  to  aceom- 
plish  their  withdrawal  in  a  body  from  the  serv- 
ice of  their  employers,  for  the  purpose  of  ob- 
taining an  advance  in  wages,  a  reduction  of 
the  hours  of  labor,  or  any  other  lejrftimete  ad- 
vantage, even  thouph  they  may  know  that  such 
action  will  necessarily  cause  injury  to  the  busi- 
ness of  their  employers,  provided  such  aban- 
donment of  work  is  not  in  violation  of  any  con- 
tinuing contract,  and  is  conducted  in  a  lawful 
manner,  and  not  under  such  drcumstances  as 
to  wantonly  or  maliciously  inflict  injury  to  per- 
son or  property." 

[3]  The  facts  found  show  that  the  plain- 
tiff has  suffered  damage  in  its  business  and 
that  the  defendants  contemplated  this  proba- 
ble effect.  A  cause  of  action  was  thus  made 
out,  entitling  the  plaintiff  to  judgment,  un- 
less the  defendants  have  made  out  or  the 
facts  presented  disclose,  that  the  defend- 
ants were  Justified  in  what  they  did.  Cmi- 
nors  V.  Connolly,  86  Conn.  641,  647,  86  Atl. 
600,  45  L.  B.  A.  (N.  S.)  564.  The  finding 
is  not  express  upon  this  point,  but  we  are  of 
the  opinion  that  the  necessary  implication 
from  the  subordinate  facts  found  is  a  Jus- 
tification for  the  defendants'  course. 

[4]  The  end  the  defendants  had  in  view 
by  their  by-laws  was  the  strengthening 
of  their  unions.    That  was  a  legitimate  end. 


There  is  no  indication  that  the  real  purpose 
of  the  defendants  was  injury  to  the  plaintiff, 
or  the  nonunion  men  it  employed.  Whatever 
injury  was  done  the  plaintiff  was  a  conse- 
quence of  trade  competition,  and  an  incident 
to  a  course  of  conduct  by  the  defendants,  be- 
gun and  prosecuted  for  their  own  legitimate 
interests.  The  means  adopted  were  lawful; 
no  unlawful  compulsion  in  act  or  word  was 
present 

[S]  The  plaintiff  had  its  option  to  employ 
the  defendants  or  not  Trade  conditions  did 
not  convert  this  legal  option  into  practical 
compulsion,  since  over  one-third  of  the  men« 
working  in  all  of  these  trades  to  which  the 
defendants  belong  in  this  locality  were  non- 
union men.  The  cessation  of  work  was'  not 
intended  to  cause  a  breach  of  existing  con- 
tracts, and  the  cancellation  of  some  of  Its 
contracts  by  the  plaintiff  is,  so  far  as  we 
know,  attributable  to  the  plaintiff's  act,  rath- 
er than  to  the  defendants'.  Certainly  the 
finding  is  too  bare  of  detail  to  i>ermlt  the 
latter  conclusion. 

[6]  The  notification  by  the  defendants  to 
the  general  contractors  and  owners  of  the 
probability  of  a  strike  by  them  in  case  the 
plaintiff  was  employed  on  any  Job  on  which 
they  were  engaged  was  no  more  than  a  no- 
tice that,  if  nonunion  labor  was  employed 
on  Jobs  on  which  the  defendant  union  men 
were  employed,  the  defendants  would  strike. 
If  the  defendants  had  the  right  to  contract 
that  they  would  not  work  with  nonimion 
labor,  and  If  they  might  cease  work  U  non- 
union men  were  employed,  as  we  hold  in 
State  V.  Stockford,  77  Conn.  227,  58  Atl.  769, 
107  Am.  St.  Rep.  28,  we  can  see  no  unlawful- 
ness in  their  notice  to  contractors  and  em- 
ployers of  what  would  happen  if  nonunion 
men  were  employed  on  Jobs  on  which  they 
were  engaged.  The  notice  was  the  course 
of  fair  dealing.  It  did  not  take  away  the 
free  choice  from  the  contractor  or  owner; 
It  possessed  him  of  the  facts  which  might 
affect  his  decision.  We  do  not  think  the 
notice  was  an  act  fairly  within  the  intimida- 
tion statute.  General  Statutes,  $  1296.  The 
facts  surrounding  the  giving  of  such  a  notice 
might  bring  it  within  the  statute;  the  facts 
detailed  in  this  finding  do  not 

There  is  no  error.  The  other  Judges  con- 
curred. 


PS  N.  H.  607) 
LESUB  V.  CITY  OF  KBENB. 

(Supreme  Court  of  New  Hampshire.    Cheshira. 
AprU  3,  1917.) 

1.  HiGHWATS    «=>213(2)  —  Damaoes    Whilk 

Tbaveuno     Dangerous     Eubankuent  — 

QuESTioiH  FOB  JuBT— Statute. 
Whether  an  embankment  is  dangerous,  with- 
in Laws  1893,  c.  59,  §  1,  providing  that  towns 
are  liable  tor  damages  to  any  person  traveling 
upon  dangerous  embankments,  etc.,  is  for  the 
jury;    but  whether  there  is  any  evidence  from 


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which  the  conduslon  can  be  drawn  is  a  question 

for  the  court. 

2.  HioBWATS  «=3l92  —  Dakaoes  to  Pkbson 

Tbavelinq  —  Embankment  ^  DANasBous 

Slopk— Statdtk. 
So  far  as  persons  traveling  on  foot  are  con- 
cerned, a  regular  slope  of  one  foot  in  six  is  not, 
in  and  of  itself,  a  dangerous  embankment,  with- 
in Lews  1893,  c.  68,  $  1. 
S.  Municipal  Cohporations  «=s>785  —  Dam- 

AGKs    ON     "Dangerous    Embankment"  — 

Statute. 
Though  it  might  l>e  possible  for  a  traveler 
to  b«  thrown  from  a  path  into  a  brook  lying  13 
feet  from  the  path,  the  slope  to  the  brook  be- 
ing regular,  and  the  fall  but  one  foot  in  six,  no 
reasonable  man  could  anticipate  that  such  was 
likely  to  happen,  so  that  the  path  was  not  on 
a  "dangerous  embankment,"  within  Laws  1893, 
c.  69,  I  1,  to  render  the  dty  liable  for  death 
of  a  dilld,  who  was  thrown  from  a  cart  drawn 
on  the  path  by  a  playmate,  and  whose  body  was 
later  found  in  the  brook. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  Second  Series,  Dangerous  Embank- 
ment.] 

4.  Municipal  CoBPORATioNB*=»819(4)— Dam- 
ages ON  Dangerous  Embankment— LiABiir 

ITT  OF  CiTT— Statute. 
Plaintitt  administratrix  cannot  recover  from 
a  city  for  death  of  a  child,  as  having  been  in- 
jured on  a  dangerous  embankment,  within  Laws 
1^3,  c.  69,  I  1,  unless  the  child  was  traveling 
along  tiie  path  on  the  embankment  when  his 
playmate,  who  was  drawing  him  in  a  cart, 
turned  it  to  the  right,  so  that  the  child  fell  oat, 
and  no  part  of  the  child's  journey  from  the 
path  to  the  brook,  where  his  body  was  later 
found,  lying  13  feet  away  from  and  below  the 
path,  was  voluntary. 

Transferred  from  Superior  Court,  Cheshire 
County. 

Action  by  Mary  L.  Leslie,  administratrix, 
against  the  City  of  Eeene.  Transferred  on 
plaintiff's  exception  to  verdict  directed  for 
defendant.    Exception  overruled. 

Case  for  causing  the  death  of  the  plain- 
tiff's intestate.  Trial  by  Jury.  Verdict  di- 
rected for  the  defmdants.  The  intestate, 
who  was  less  than  four  years  old,  was  trav- 
eling on  or  near  the  east  line  of  Damon  court 
toward  Beaver  street  In  a  cart  drawn  by  a 
boy  of  five  at  the  time  the  accident  happen- 
ed, and  Just  before  they  reached  that  street 
the  boy  turned  so  sharply  to  tiie  right  that 
the  cart  tipped  over  on  one  wheel  and  threw 
the  intestate  out.  Later  liis  body  was  found 
in  Beaver  brook.  There  la  no  sidewalk  on 
the  east  side  of  the  court,  but  those  who 
have  occasion  to  use  that  side  of  the  street 
travel  in  a  well-defined  path  very  near  the 
east  line  of  the  court  Beaver  brook  Is  13 
feet  east  of  this  path.  The  bank  of  the 
brook  Is  a  little  more  than  2  feet  lower  than 
the  path,  and  the  slope  Is  regular. 

Benton  &  Pickard,  of  Keene,  for  plaintiff. 
John  E.  Allen  and  William  H.  Watson,  both 
of  Keene,  for  defendant. 

YOUNG,  J.  [1,  2]  The  plaintiff's  exception 
must  be  overruled,  unless  It  can  be  found 
that  the  Intestate  was  traveling  on  a  danger- 
ous embankment  within  the  meaning  of  Laws 


1893,  c.  59,  §  1,  at  the  time  the  accident  hap- 
pened. Wilder  V.  Concord,  72  N.  H.  259,  263, 
56  Atl.  193.  And  while  it  is  true,  as  the 
plaintiff  contends,  that  the  question  of 
whether  an  enbankment  is  dangerous,  within 
the  meaning  of  this  section,  is  for  the  Jury, 
it  Is  also  true  that  whether  there  is  any  evi- 
dence from  which  that  can  be  found  is  a 
question  for  the  court,  and  all  fair-minded 
men  must  agree  that,  in  so  far  as  persons 
traveling  on  foot  are  concerned,  a  regular 
slope  of  one  foot  in  six  is  not  in  and  at  itself 
a  dangerous  embankment  within  the  meaning 
of  that  section.  If  it  is  true,  as  the  plaintiff 
contends,  that  there  should  be  a  railing  on 
the  east  side  of  Damon  court  at  the  place 
where  the  accident  happened  for  the  protec- 
tion of  those  traveling  on  Beaver  street.  It 
comes  to  nothing  in  so  far  as  the  questions 
we  are  considering  are  concerned,  for  the  in- 
testate was  traveling  on  Damon  court — ^not 
Beaver  street — at  the  time  the  accident  hap- 
pened. Laws  1893,  c.  59,  {  1.  If,  therefore, 
there  is  a  dangerous  embankment  on  the  east 
side  of  Damon  court  at  and  near  its  inter- 
section with  Beaver  street.  It  is  because  of 
the  nearness  of  the  brook  to  the  path  in 
which  those  who  have  occasion  to  use  that 
side  of  the  court  traveL  In  other  words,  it 
is  because  the  path  is  so  near  the  brook  that 
the  defendants  ought  to  have  antl<dpated  that 
those  having  occasion  to  use  the  path  might 
fall,  slip,  or  be  thrown  from  It  Into  the 
brook,  for  the  purpose  of  a  railing  is  to  en- 
able travelers  to  use  the  highway  In  safety 
— not  to  prevent  them  from  leaving  it  volun- 
tarily. Robertson  v.  Hillsborough,  99  Atl. 
1069. 

[3]  It  Is  obvious  that,  when  the  ground  Is 
free  from  Ice  and  snow,  It  is  a  physical  im- 
possibility for  one  using  this  path  to  slip  or 
fall  fiom  It  Into  the  brook.  While  it  may  be 
possible  for  a  traveler  to  be  thrown  from  it 
into  the  brook,  no  reasonable  man  would 
anticipate  that  that  was  likely  to  happoi; 
for  the  brook  is  13  feet  from  the  path,  the 
slope  regular,  and  thp  fall  but  1  foot  in  6. 
One  difBcuIty  with  the  plaintiff's  contention 
that  that  is  what  happened  in  this  case  is 
that  there  is  no  evidence  to  sustain  It  Tbe 
evidence  relevant  to  how  the  accident  hap- 
pened is  that  the  boy  who  drew  the  cart  wm 
but  five  years  old,  and  while  it  shows  that  he 
was  running,  It  also  shows  that  he  was  not 
running  very  fast  when  he  turned  to  the 
right  In  other  words,  it  shows  that  he  was 
running  Just  as  you  would  expect  a  boy  of 
five,  who  was  drawing  a  cart,  would  run,  and 
that  the  intestate  simply  fell  from  the  cart 
when  it  tipped  up  on  one  wheel.  There  is  no 
evidence  that  even  tends  to  the  conclusion 
that  he  was  throvm  violently  from  the  cart, 
and  when  we  consider  the  distance  of  the 
brook  from  the  path  and  the  character  of  tbe 
land  between,  it  is  clear  that  he  was  wt 
thrown  into  the  brook  from  the  path. 


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BOSTON  &  M.  R.  R.  T.  CITT  OP  CONCORD 


663 


[4]  In  short,  U  It  is  assumed  that  the  boy 
was  In  the  path  when  he  turned  to  the  right, 
it  cannot  be  found  that  the  intestate  was 
thrown  from  the  cart  into  the  brook;  for, 
while  the  evidence  will  warrant  either  a 
finding  that  the  cart  was  in  the  path  when 
the  boy  turned  to  the  right,  or  a  finding  that 
the  intestate  was  thrown  from  the  cart  into 
the  brook,  it  will  not  warrant  both  of  these 
findings,  and  the  plaintiff  cannot  recover,  un- 
less he  shows  that  the  intestate  was  travel- 
ing along  this  path  when  the  boy  turned  to 
the  right,  and  that  no  part  of  his  journey 
from  the  path  to  the  brook  was  voluntary. 

Plaintiff's  exception  overruled. 

(78  N.  H.  463) 

BOSTON  &  M.  R.  B.  v.  CITY  OP  CONCORD. 

SAME  v.  STATE. 

(Supreme  Court  of  New   Hampshire.      Merri- 
mack.    June  30,  1917.) 

1.  Taxation  4s»14i  —  Pbopebtt  Taxabu:  — 
Materials  Used  fob  Repaib— "Obdinaey 
BrsiNEss"— "Stock  in  Tbadk"— "Mechan- 
ic"—"Tbadesman." 
Under  Laws  1911,  c.  169,  J  11,  providing 
that  every  railroad  shall  pay  to  the  state  an 
annual  tax  upon  the  value  ot  its  property  used 
in  its  ordinary  business,  which  would  not  be 
•exempt  from  taxation  if  owned  by  a  natural 
person  or  ordinary  business  corporati<Nii,  plain- 
tiff railroad,  which  ordinarily  carries  on  the 
business  of  building  and  repairing  its  equipment, 
is  liable  to  state  tax  for  the  materials  thus  used ; 
the  term  "ordinary  business,"  as  used  in  the 
statute,  being  synonymous  with  the  business  a 
person  ordinarily  carries  on,  and  the  materials 
used  being  "stock  in  trade,"  and  the  plaintiff  a 
"mechanic^'  and  "tradesman,"  within  Pub.  St. 
1001,  c.  S5,  §  T,  subd.  6,  imposing  a  tax  on 
stock  employed  by  mechanics  or  tradesmen  in 
their  trade  or  busmess. 

[Ed.  Note.— Por  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Ordinary 
Business;    Stock  in  Trade;    Mechanic] 

■2.  Taxation  ®=»494(4)— Railroad  Pbopebtt 
— PowEB  or  Courts. 
In  a  proceeding  to  abate  taxes  assessed  by 
'defendant  city,  tho  court  had  no  jurisdiction  to 
value  or  tax  the  property  of  petitioner  railroad 
that  escaped  taxation  by  the  tax  commission ; 
its  only  power  being  that  given  by  Laws  1911, 
c  169,  to  review  such  orders  and  findings  of 
•the  tax  commission  created  as  come  before  it 
on  appeal. 

3.  Words  and  Phrases— "Tradesman." 

Any  person  is  a  "tradesman"  who  carries  on 
-the  manufacturing  or  repairing  business  for  him- 
self, whether  he  does  the  work  with  his  own 
hands  or  employs  others  to  do  it  for  him. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Trades- 
-man.l 

Transferred  from  Superior  Court,  Merri- 
mack County. 

Petitions  by  the  Boston  &  Maine  Railroad 
against  the  City  of  Concord  and  the  State  to 
abate  taxes.  Cases  transferred  from  sujwrl- 
or  court,  without  rulings.  First  case  sus- 
tained, and  tax  abated ;  and  second  case  dis- 
.  missed.    See,  also,  78  N.  H.  192,  98  Atl.  66. 

Tax  appeals.  The  first  is  an  appeal  from 
a  tax  assessed  by  the  city  of  Concord  in  191.3 


on  materials  used  by  the  plaintiffs  In  build- 
Ing  and  repairing  equipment  at  their  Con- 
cord shops.  After  the  opinion  holding  that 
the  property  was  not  taxable  in  Concord  (78 
N.  H.  192,  98  AU.  66)  was  filed,  the  Attorney 
General  intervened  and  asked  the  court  to 
order  the  plaintiffs  to  pay  the  state  a  tax  on 
the  property  in  question  for  that  year  as  the 
price  of  a  decree  abating  the  Illegal  tax. 
The  court  found  that  the  property  would 
have  been  taxed  by  the  state  in  1913,  but  for 
the  tax  commission's  mistake  in  thinking 
that  it  was  taxable  in  Concord,  and  that  it 
would  be  Just  for  the  court  to  assess  a  tax 
on  the  property  in  this  proceeding,  if  it  is 
taxable  and  the  court  has  power  to  tax  it 
The  questions  whether  the  property  is  taxable 
under  the  provisions  of  Laws  1911,  a  169, 
and  whether  the  court  has  power  to  tax  it, 
were  transferred  by  Sawyer,  J.,  without  a 
ruling  from  October  term,  1916,  of  the  su- 
perior court 

The  second  is  an  appeal  from  the  tax  com- 
mission's assessment  of  the  general  railroad 
tax  assessed  on  the  plaintiffs'  property  for 
the  year  1916.  The  tax  commission  included 
the  materials  and  supplies  used  in  the  plain- 
tiffs' Concord  and  Keene  shops  at  their  aver- 
age value  for  the  year  in  the  appraisal  of 
their  taxable  property;  and  the  question  of 
whether  these  materials  are  taxable  was 
transferred  by  Chamberlain,  O.  J.,  without  a 
ruling,  from  the  superior  court 

Streeter,  Demond,  Woodworth  &  Sulloway, 
of  Concord,  and  Branch  &  Branch,  of  Man- 
chester, for  plaintiff.  James  P.  Tuttle,  Atty. 
Gen.,  for  the  State. 

TOUNG,  J.  [1]  The  question  whether  the 
materials  the  plaintiffs  use  in  building  and 
repairing  equipment  are  taxable  by  the  state 
is  common  to  both  appeals,  for  if  these  ma- 
terials are  not  taxable  they  were  not  taxable 
in  1913.  Whether  they  are  taxable  depends 
on  whether  the  plaintiffs  use  them  in  their 
ordinary  business,  within  the  meaning  of 
Laws  1911,  a  169,  for  section  11  provides 
that: 

"Every  railroad  •  •  •  shall  pay  to  the 
state  an  annual  tax,  •  •  •  upon  the  actual 
value  of  its  property  and  estate  used  in  its  ordi- 
nary business  whico  would  not  be  exempt  from 
taxation  if  owned  by  a  natural  person  or  ordi- 
nary business  corporation." 

The  plaintiffs  concede  that  they  ordinarily 
carry  on  the  business  of  building  and  repair- 
ing equipment  in  connection  with  their  trans- 
portation business,  but  contend  that  that  is 
not  th^r  ordinary  business,  within  the  mean- 
ing of  section  11.  In  other  words,  they  con- 
tend that  the  property  in  question  is  not 
nsed  in  their  ordinary  business,  within  the 
meaning  of  that  section,  and  that  it  is  not 
taxable,  even  though  it  would  be  taxable,  if 
owned  by  an  individual  or  ordinary  business 
corporation.  They  base  this  contention  on 
what  was  said  in  Boston  &  Maine  R.  R.  v. 
Franklin.  76  N.  H.  459,  84  AU.  44,  as  to  the 


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101  ATIiANTIC  REPORTER 


(N.  H. 


meaning  of  the  term  "ordinary  business,"  as 
used  in  P.  S.  c.  84,  {  12. 

The  purpose  the  Legislature  had  in  mind 
when  It  enacted  section  11,  as  well  as  the 
sense  in  which  it  used  the  term  "ordinary 
business,"  are  questions  of  fact  pure  and  sim- 
ple, and,  like  all  such  questions,  to  be  decid- 
ed, not  by  rules  of  law,  but  by  weight  of 
competent  evidence.  It  is  fair  to  assume 
that  the  Legislature  did  not  Intend,  when  it 
enacted  that  section,  to  put  railroads  in  a 
better  position,  in  so  far  as  taxation  Is  con- 
cerned, than  individuals  and  ordinary  busi- 
ness corporations;  but  that  is  the  effect  of 
section  11  if  the  term  "ordinary  business"  is 
given  its  ordinary  meaning.  It  is  true  there 
is  a  presumption  that  that  is  the  sense  in 
which  the  Legislature  used  that  term ;  but  it 
is  a  presumption  of  fact,  not  law,  and  conse- 
quently it  may  be  rebutted  by  competent  evi- 
dence, and  the  fact  that,  If  that  term  is 
given  its  ordinary  meaning  in  section  11,  the 
personal  property  railroads  use  only  mediate- 
ly in  the  transportation  business  escapes  tax- 
ation, notwithstanding  it  would  be  taxable  if 
owned  by  an  Individual,  tends  very  strongly 
to  the  conclusion  that  that  was  not  the  sense 
in  which  the  Legislature  used  that  term  iu 
that  section.  In  other  words,  it  is  so  im- 
probable that  the  Legislature  of  1911  Intend- 
tjd  to  exempt  property,  when  owned  by  a  rail- 
road, that  would  be  taxable  if  owned  by  an 
individual  or  ordinary  business  corporation, 
as  to  warrant  the  court  in  holding  that  that 
was  not  the  purpose  it  had  in  mind  when  it 
enacted  section  11,  if  the  terms  it  used  are 
capable  of  the  construction  that  property 
which  is  taxable  under  the  provisions  of  P. 
S.  c.  55,  when  owned  by  an  individual,  is 
taxable  under  the  provisions  of  chapter  160 
when  owned  by  a  railroad.  Phillips  Acad- 
emy V.  Exeter,  68  N.  H.  306,  42  Am.  Rep.  689. 

The  language  of  section  11  is  fairly  capa- 
ble of  such  a  construction,  for  "ordinary 
business"  is  often  used  as  synonymous  with 
the  business  a  person  ordinarily  carries  on ; 
and  if  that  term  is  given  that  meaning  in 
section  11  the  property  in  question  is  taxa- 
ble. If  it  would  be  taxable  if  owned  by  an 
individual.  It  does  not  necessarily  follow, 
therefore,  from  the  fact  that  the  Legislature 
used  the  term  "ordinary  business"  in  P.  S.  c 
64,  I  12,  to  describe  the  transportation  busi- 
ness, that  that  is  the  sense  in  which  it  used 
that  term  in  Laws  1911,  c.  169,  {  11;  for, 
as  we  have  seen,  whether  that  was  the  sense 
in  which  it  used  it  is  a  question  of  fact,  and, 
while  the  evidence  In  the  IB^nklin  Case  all 
traded  to  the  conclusion  that  that  was  the 
sense  in  which  the  Legislature  used  it  in  sec- 
tion 12,  the  evidence  in  this  case  tends  very 
strongly  to  the  conclusion  that  that  term,  as 
used  in  section  11,  includes  any  business 
railroads  ordinarily  carry  on  in  connection 
with  the  transportation  business.  Since  the 
plaintitTs  ordinarily  carry  on  the  business  of 
building  and  repairing  equipment,  the  mate- 
rials in  question  are  taxable  as  stock  in 


trade,  if  they  would  be  so  taxable  if  owned 
by  an  individual  or  ordinary  corporation  car- 
rying on  the  same  business  in  the  way  and 
for  the  purpose  the  plaintiffs  carry  it  on. 

Stock  in  trade  is  defined  In  P.  S.  c.  55,  i  7, 
subd.  6,  as  the  stock  of  mechanics  and  trades- 
men employed  in  their  trade  or  business. 
Any  person  is  a  tradesman  who  carries  on 
the  manufacturing  or  repairing  business  for 
himself,  whether  he  does  the  work  with  his 
own  hands  or  employs  others  to  do  It  for 
him;  for  example,  a  blacksmith  who  runs  a 
shop  in  which  he  shoes  his  neighbor's  horses 
and  mends  their  tools  is  a  tradesman  within 
the  meaning  of  this  section.  White  Mt.  Fur 
Co.  V.  Whltefleld,  77  N.  H.  340, 91  Atl.  870.  and 
that  is  also  true  of  the  Amoskeag  -Manufactur- 
ing Co.  Company  v.  Manchester,  70  X.  II.  COO. 
46  Atl.  470.  Since  the  plaintiffs  ordinarily  car- 
ry on  the  business  of  building  and  repairing 
equipment,  tl:cy  are  mechanics  and  tradesmen 
within  tlie  meaning  of  section  7,  and  the  ma- 
terials they  u.se  in  that  branch  of  their  busi- 
ness constitute  property  used  in  their  ordina- 
ry business  within  the  meaning  of  that  term 
as  used  in  section  11,  and  are  taxable  unless 
the  fact  the  only  use  they  make  of  these  ma- 
terials is  to  build  and  repair  the  equipment 
they  use  in  other  branches  of  their  business 
deprives  them  of  the  character  of  stock  in 
trade.  In  fact,  the  plaintilis  concede  that 
these  materials  would  be  taxable  as  stock  hi 
trade  if  they  used  them  to  build  and  repair 
equipment  for  others,  but  contend  that  they 
arc  not  stock  in  trade  within  the  meaning  of 
tills  provision  of  the  statutes,  because  the 
only  use  they  make  of  them  is  to  build  and 
repair  the  equipment  they  use  in  the  trans- 
portation business.  In  other  words,  the 
plaintiffs  concede  that  they  are  mechanics  or 
tradesmen  within  the  meaning  of  this  provi- 
sion of  the  statutes,  but  contend  that  the 
property  in  question  is  not  taxable  as  stock 
in  trade,  because  they  do  not  carry  on  this 
branch  of  their  business  for  profit. 

If  it  were  conceded  that  this  conclusion 
could  be  drawn  from  the  findings  in  the  case, 
it  would  not  help  the  plaintiffs  for  the  prop- 
erty that  is  taxable  as  stock  in  trade  is  "stock 
•  •  •  employed  in  their  trade  or  business." 
The  plaintiffs  carry  on  the  business  of  build- 
ing and  repairing  the  equipment  they  use- 
consequently  the  property  in  question  is  prop- 
erty they  employ  in  tbeir  trade  or  business. 
While  the  plainttfCs'  contention  that  the  mate- 
rials they  use  to  build  and  repair  equipmott 
stand  Just  exactly  the  same,  in  so  far  as 
taxation  is  concerned,  as  those  a  teamster 
uses  to  build  and  repair  carts,  is  soun^,  its 
application  to  their  contention  that  the  prop- 
er^ in  question  is  not  taxable  is  not  appar- 
ent If  a  teamster  was  ordinarily  engaged 
in  building  and  repairing  carts,  either  for 
him.self  or  others,  in  connection  with  his 
teaming  business,  then  and  in  that  case  build- 
ing and  repalrhig  carts  would  be  his  busi- 
ness within  the  meaning  of  section  7,  suM.  6, 
and  the  materials  be  used  in  that  business 


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ROSBXZWOG  V.  OOUIiD 


665 


would  be  taxable  as  stock  in  trade.  If,  how- 
ever, the  only  work  of  this  kind  that  he  did 
was  occasionally  to  build  or  repair  a  cart,  he 
would  not  be  engaged  in  the  bnsiness  of  bulTd- 
ing  carts,  and,  while  the  materials  he  used 
might  or  might  not  be  taxable  under  some 
other  provlsloa  of  the  statutes,  th«y  would 
not  be  taxable  as  stock  in  trade,  for  a  tax  on 
stodS  In  trade  is  not  a  tax  on  any  specific 
property,  but  a  tax  on  the  money  a  person 
employs  in  his  trade  or  business.  So,  if  all 
the  business  of  this  kind  the  plaintiffs  did 
was  to  occasionally  repair  a  car  or  an  en- 
gine, they  would  not  be  engaged  in  the  busi- 
ness of  building  and  repairing  equipment,  and 
while  the  materials  they  used  for  that  pur- 
pose might  be  taxable,  they  would  not  be  tax- 
able as  stock  In  trade.  That,  however,  is  not 
this  case;  for  the  plaintiffs  are  engaged  in 
building  and  repairing  equipment  In  fact, 
building  and  repairing  it  is  as  much  a  busi- 
ness In  which  they  are  engaged  as  transport- 
ing frpight  and  passengers.  It  must  be  held, 
therefore,  that  the  materials  in  question  are 
stock  in  trade,  within  the  meaning  of  P.  S.  c. 
55,  {  7,  subd.  "G,  and  that  they  were  properly 
taxed  by  the  state  in  1916. 

[2]  The  only  other  question  that  will  be 
considered  la  whether  the  court  has  such  Ju- 
risdiction of  the  plaintiffs  and  their  property 
that  it  can  value  the  property  that  escaped 
taxaticm  in  1013  and  assess  a  tax  on  it  in 
this  proceeding.  It  Is  enough,  in  so  far  as 
this  case  is  concerned,  to  say  that  if  the  court 
has  power  to  assess  a  tax  on  the  property  in 
question  in  this  proceeding,  it  has  poww  to 
assess  a  tax  on  it  in  a  proceeding  brought  for 
that  purpose;  for  the  power  to  make  such 
orders  as  justice  requires,  conferred  on  it  by 
P.  S.  c.  59,  §  11,  does  not  include  the  power 
to  compel  the  prevailing  party  in  a  tax  appeal 
tp  pay  a  d«bt,  that  could  not  be  otherwise 
<»llected,  which  he  owes  a  stranger  to  the  suit 
ns  the  price  of  a  decree  abating  the  Illegal  tax, 
and  the  court  must  have  that  power,  if  it  is 
to  give  the  state  the  relief  prayed  for.  The 
power  to  determine  what  property  shall  be 
taxeSd  and  by  whom  the  tax  shall  be  assessed 
is  vested  In  the  Legislature,  subject  to  the 
limitations  imposed  on  it  by  the  Constitution ; 
consequently  the  court  has  no  Jurisdiction 
either  to  value  the  plaintiffs'  property  or  to 
assess  a  tax  on  it,  unless  there  U  a  statute 
giving  it  that  power. 

The  only  statute  giving  the  court  any  pow- 
er. In  so  far  as  taxing  the  plaintiffs'  property 
Is  concerned,  is  Laws  1911,  c.  169 — the  act 
creating  the  tax  commission.  Section  8  of 
this  act  provides  that  the  commission  shall 
appraise  the  taxable  property  of  railroads 
and  certain  other  corporations,  and  assess  a 
tax  on  them  for  the  benefit  of  the  state.  Sec- 
tions 11  and  24  delimit  the  property  taxable 
un'der  the  provisions  of  section  8.  Sections 
12,  13,  14,  15,  16,  and  17  prescribe  how  the 
commission  shall  proceed  in  appraising  the 


property,  and  specify  certain  things  that  it 
shall  consider  in  ascertaining  the  value  of 
the  property  and  determining  the  rate  at 
which  it  shall  be  taxed.  Section  18  fixes  the 
time  within  which  the  tax  shall  be  assessed, 
and  provides  for  rehearings;  and  section  19 
gives  both  parties  an  appeal  to  the  court  from 
any  order  or  finding  of  the  commission  by 
which  th^r  rights  may  be  concluded.  The 
court's  power,  therefore,  In  respect  to  both 
appraising  and  taxing  the  plaintiffs'  proper- 
ty, Is  the  power  to  revise  the  commission's 
findings  on  appeal;  for  that  is  the  only  pow- 
er that  chapter  169  confers  on  it  In  other 
words,  the  court  has  no  common-law  juris- 
diction In  respect  to  valuing  and  taxing  the 
plaintiffs'  property,  and  its  statutory  Juris- 
diction is  limited  to  revising  such  orders  and 
findings  of  the  tax  commission  as  come  before 
It  on  appeal.  The  court,  therefore,  has  no 
power  to  Impose  a  tax  on  the  plaintiffs'  prop- 
erty that  escaped  taxation  in  1913  In  this 
preceding.  Whether  it  has  such  power,  on 
appeal  from  an  order  of  the  tax  commission, 
taxing  or  refusing  to  tax  the  property,  is  a 
question  that  is  not  and  cannot  be  raised  in 
either  of  these  proceedings,  and  as  to  it  no 
opinion  is  intended  to  be  expressed. 

The  order  in  the  first  case  should  be:  Ap- 
peal sustalneid.  Tax  abated.  In  the  second : 
Appeal  dismissed.   All  concurred. 


cm  Md.  2oe) 
ROSENZWOG  v.  GOULD.    (No.  26.) 
(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Tbdsts  «=»197 — Salb  on  Court's  Obdeb— 
Title  of  Pubchabeb— Collatebal  Attack. 

Where  a  court  having  jurisdiction  determin- 
ed the  title  to  a  trust  estate,  and,  on  request  be- 
ing made  by  the  parties  in  interest,  directed  the 
trustee  to  sell  the  property  and  distribute  the 
proceeds  among  them,  and  the  request  was  filed 
and  the  property  duly  sold  to  plaintiff,  the  sale 
reported,  ratified,  and  confirmed,  a  distribution 
of  the  trust  estate  made,  and  no  appeal  taken 
from  the  decree,  defendant,  in  suit  tor  specific 
performance  of  a  contract  for  the  purchase  from 
plaintiff  of  a  ground  rent  issuing  out  of  the  prop- 
erty, could  not  attack  jijlaintiff's  title,  since 
where  there  was  jurisdiction  in  a  court,  the  er- 
roneous or  improvident  exercise  of  it  is  not  to  be 
corrected  at  the  expense  of  a  purchaser  having  a 
right  to  rely  on  the  court's  order. 

2.  Descent  and  Distbibution  ^=»17  —  Con- 
tingent Reuaindeb  —  Death  of  Remain- 

DERliAN. 

Where  a  contingent  remainder  is  devised, 

and  the  remainderman  dies  before  the  happening 
of  the  contingency,  his  representatives  or  heirs 
take  his  interest 

3.  WttLs  ®=>700  —  CoNSTBDonoN  —  Jubisdic- 
TioN— Parties. 

'Testator'^  will  directed  that  trustees  should 
receive  $10,000,  proceeds  of  a  life  policy,  invest 
in  ground  rents,  and  pay  from  the  net  proceeds 
for  10  years  $50  to  liquidate  a  debt  of  $500; 
that  until  the  debt  was  paid,  testator's  widow 
should  receive  the  balance  of  the  returns,  bat, 
after  full  payment,  she  should  receive  the  whole 
of  the  net  proceeds  for  life;  that  after  her  death 
the  trustees  were  to  pay  the  same  in  like  man- 
ner to  testator's  daughter  for  life,  after  her  death 
in  equal  proportions  to  her  children  until  the 


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666 


101  ATLANTIC  KEPOBTER 


(Ud. 


youngest  should  reach  21,  and  that  then,  to  such 
children  as  should  be  living,  the  whole  estate 
should  be  given  in  fee  simple,  but  that  if  the 
widow  died  and  the  daughter  left  no  child  or 
children,  the  trustee  should  pay  to  testator's  sis- 
ter $100  a  year  during  her  life,  the  balance  of 
the  dividends  to  be  added  to  the  principal  and 
retained  for  21  years  after  testator's  death  and 
that  of  his  wife  and  daughter,  when  the  estate 
should  be  divided  equally  among  his  brothers 
and  sisters,  naming  them.  The  sister  given  a 
contingent  remainder  of  $100  a  year  died  several 
years  before  testator's  widow  and  daughter. 
Held,  that  with  the  heirs  of  testator's  deceased 
brother  and  sisters  before  the  court,  it  had  juris- 
diction, at  suit  of  the  executors,  to  decree  to 
whom  the  trust  estate  should  go. 

Appeal  from  Circuit  Conrt  No.  2  of  Balti- 
oiore  City ;  Henry  Duffy,  Judge. 

Suit  by  Beryl  M.  Gould  against  Morris  J. 
Roseiizw(%.  From  a  decree  for  plaintiff,  de- 
fendant appeals.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNBR, 
STOCKBRIDUE,  and  CONSTABLE,  JJ. 

Karl  A.  M.  Scholtz,  of  Baltimore,  for  ap- 
pellant Leigh  BoDsal,  of  Baltimore,  for  ap- 
pellee. 

CONSTABLE,  J.  This  appeal  is  from  a 
decree  passed  decreeing  specific  performance 
of  a  contract  made  by  the  appellant  for  the 
purchase  from  the  appellee  of  a  ground  rent 
Issuing  out  of  property  located  in  Baltimore 
city.  The  bill  alleged  that  the  appellee  ac- 
quired title  through  one  James  H.  Corrigan, 
substituted  trustee  of  the  trust  estate  creat- 
ed by  the  will  of  Samuel  Hubbell,  who  died 
in  1836,  leaving  surviving  him  as  his  heirs  at 
law  and  next  of  liin  a  widow,  Sarah  C.  Hub- 
bell,  who  died  in  18S0,  and  a  daughter  Rach- 
el, who  intermarried  with  one  Barnard ;  that 
the  daughter  Rachel  had  one  child,  Kate  G. 
Barnard,  who  married  one  Gaspari;  that 
Kate  G.  Gaspari  died  in  1911,  without  de- 
scendants and  prior  to  the  death  of  her 
mother,  the  daughter  of  the  testator,  in  1915. 
Shortly  after  the  death  of  Rachel  E.  Barnard 
her  executors  filed  a  petition  In  the  equity 
case,  in  which  years  prior  the  superior  court 
had  assumed  jurisdiction  over  the  Samuel 
Hubbell  trust  estate,  asking  the  court  to  de- 
cree as  to  whom  the  trust  estate  should  go, 
that  is,  to  the  legatees  under  a  will  left  by 
the  said  Rachel  E.  Barnard  or  to  the  heirs  at 
law  of  the  brother  and  sisters  of  the  testa- 
tor, Samuel  Hubbell,  who  had  been  named  in 
his  will  to  receive  the  principal  of  the  trust 
estate  in  the  event  of  the  death  of  his  daugh- 
ter Rachel  without  descendants.  To  this  pe- 
tition all  of  the  legatees  under  the  will  of 
Rachel  E.  Barnard  and  all  of  the  descend- 
ants of  the  deceased  brother  and  sisters  of 
Samuel  Hubbell,  who  were  entitled  by  descent 
or  otherwise  to  the  estate  of  their  respective 
parents,  filed  answers.  Upon  submission  of 
the  case  to  the  court,  it  was  decreed  that  the 
daughter  Rachel  had  but  a  life  estate,  and 
the  trustee  was  directed  upon  request  being 
made  by  the  descendants  of  the  brother  and 
sisters,  all  of  whom  were  sui  Juris,  to  sell 


the  property  and  distribute  the  proceeds 
among  them.  Said  request  was  filed,  and  the 
property  duly  sold  to  the  appellee  and  said 
sale  duly .  reported  to  and  ratified  and  con- 
firmed, and  a  distribution  of  the  trust  estate 
made  in  conformity  to  the  decree,  and  no  ap- 
peal taken  from  the  decree.  The  answer  fil- 
ed by  the  appellant  admitted  all  the  allega- 
tions of  facts  contained  in  the  bill,  but  al- 
leged that  the  decree  authorizing  the  sale 
and  distribution  under  the  same  was  invalid, 
for  want  of  proper  parties  before  the  court 
The  case  was  then  heard  on  bill  and  answer. 
[1]  This  case  plainly  comes  within  the 
thoroughly  settled  doctrine  applicable  to  col- 
lateral attacks  upon  titles  obtained  by  par- 
chasers  at  sales  under  decrees  of  a  oourt  of 
equity.  The  rule  Is  well  stated  in  Long  v. 
Long,  82  Md.  33,  as  follows: 

"With  respect  to  the  jurisdiction  and  power  of 
the  coun^  court  to  pass  the  decree,  under  wbidi 
tlic  sale  was  made,  we  can  entertain  no  doubt 
The  clause  of  the  will  forbidding  the  sale  or 
lease  of  the  property  until  the  occurrence  of 
certain  events,  did  not  affect  the  Jarisdiction  of 
the  court.  The  court  was  one  of  general  equity 
jurisdiction,  and  the  subject-matter  and  the  par- 
ties fell  within  the  scope  and  limit  of  that  juris- 
diction. The  object  of  the  application  was, 
in  the  first  place,  to  have  one  trustee  removed 
and  another  appointed  in  his  stead ;  and,  in  the 
second  place,  to  have  real  property  that  was 
held  in  trust  sold  for  the  interest  and  common 
benefit  of  all  parties  concerned.  These  were  ob- 
jects clearly  within  the  jurisdiction  of  the  court; 
and,  while  it  may  have  been  error  to  authorise 
the  sale,  in  view  of  the  special  provision  of  the 
will,  yet  that  was  matter  of  construction  upon 
which  the  court  was  competent  to  pass,  and  for 
any  error  committed  in  that  respect,  the  proper 
remedy  was  either  by  bill  of  review  in  the  same 
court,  or  an  appeal  to  a  court  of  review.  The 
general  and  well-settled  rule  of  law  in  all  such 
cases  is  that  when  the  proceedings  are  collateral- 
ly brought  in  question,  and  it  appears  on  their 
face  that  the  subject-matter  was  within  the  ju- 
risdiction of  this  court,  they  were  not  impeach- 
able for  mere  errors  or  irregularities  that  may 
be  apparent.  Such  errors  and  irregularities 
must  be  corrected  by  some  direct  proceeding, 
either  in  the  court  to  set  them  aside,  or  on  ap- 
peal. If,  however,  there  be  a  total  want  of  ju- 
risdiction, either  of  parties  or  subject-matter, 
the  proceedings  are  void  and  can  confer  no  right. 
and  will  be  rejected,  though  the  objection  to 
them  be  taken  in  a  collateral  proceeding.  But 
where  there  was  jurisdiction  in  the  court,  the 
erroneous  or  improvident  exercise  of  it,  or  the  ex- 
ercise of  it  in  a  manner  not  warranted  by  the  evi- 
dence before  it,  whether  that  be  in  respect  to  the 
construction  of  written  instruments,  or  deduc- 
tions drawn  from  unwritten  proof,  the  errors, 
however  apparent,  are  not  to  be  corrected  at  the 
expense  of  a  purdiaser,  who  had  a  right  to  rely 
upon  the  order  of  the  court,  as  an  authority  em- 
anating from  a  competent  jurisdiction.  The 
county  court  having  jurisdiction  over  the  subject- 
matter  and  the  partlea,  it  had  a  right  to  decide 
every  question  that  arose  in  the  cause,  and 
whether  the  decision  be  right  or  wrong,  it  must 
be  respected  by  all  other  courts  when  coming 
collaterally  in  qnestion.  Any  other  principle 
would  unsettle  and  render  insecure  the  larger 
portion  of  the  titles  of  the  country.  This  court, 
in  common  with  the  other  appellate  courts  of 
this  country,  has  repeatedly  asserted  these  prin- 
ciples to  their  fullest  extent." 

See  Miller's  Equity,  {{  516,  517,  and  note.-;. 
Such  being  the  law  applicable,  it  onlj  re- 


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WESTERN  NAT.  BANK  t.  JENKINS 


667 


mains  to  ascertain  whether  the  proper  par- 
ties were  before  the  court,  In  order  that  it 
should  have  had  complete  Jurisdiction  to 
make  the  decree  a  valid  one,  bo  far  as  this 
attack  upon  Its  validity  is  concerned.  We  do 
not  deem  It  necessary  to  set  out  the  will  of 
Samuel  Hnbbell  verbatim,  but  wUl  confine 
ourselves  to  the  substance  thereof  as  perti- 
nent to  the  question  here  Involved.  It  direct- 
ed that  certain  trustees  should  receive  the 
sum  of  $10,000,  the  proceeds  of  a  life  Insur- 
ance policy,  and  Invest  the  same,  preferably, 
in  ground  rents  in  Baltimore  city,  and  pay 
from  the  net  proceeds  thereof  for  a  term  of 
10  years  $50  to  a  certain  Capt  Godfrey  or 
his  heits  for  the  purpose  of  liquidating  a 
debt  of  $500  owing  by  him  to  Godfrey ;  until 
that  debt  was  paid  in  full  the  widow  was  to 
receive  the  balance  of  the  rents  and  profits, 
but,  after  the  full  payment,  the  widow  was  to 
receive  the  whole  of  the  net  profits,  for  life. 
After  the  death  of  the  widow  the  trustees 
were  to  pay  the  same,  and,  in  like  manner,  to 
his  daughter  Rachel  during  her  natural  life — 
"and  after  her  death  the  same  and  in  equal  pro- 
portions to  her  children  nntU  the  youngest  of 
them  shall  have  attained  the  age  of  twenty  one 
years,  then  to  auch  children  as  shall  be  living 
at  that  time  the  whole  estate  shall  be  given  in 
fee  simple  when  said  trust  shall  be  at  an  end. 
But  in  the  event  of  the  death  of  my  said  wife  S. 
O.  Habbell,  and  my  daughter,  Rachel  Eliza  Hnb- 
bdl,  said  Rachel  Eliza  Hubbell  leaving  no  child 
or  children,  then  said  trustees  shall  pay  to  my 
tiater,  Sasan  Scott,  one  hundred  dollars  a  year 
during  her  natural  life." 

The  balance  of  the  dividends  were  to  be 
added  to  the  principal  of  the  estate  and  "re- 
tained in  the  bands  of  the  trustees  for  the 
term  of  21  years  after  the  death  of  the  testa- 
tor, and  his  wife,  8.  C.  Hubbell,  and  his 
child,  Rachel  Elizabeth  Hubbell,"  at  which 
time  the  estate  was  to  be  divided  equally 
among  his  brother  and  sisters,  each  of  whom 
was  named  expressly  in  the  wllL  Susan 
bcott  died  several  years  before  the  widow 
and  daughter  of  the  testator. 

[2]  It  is  a  well-settled  principle  of  law 
that  when  a  contingent  remainder  Is  dpvlsed, 
where  the  person  who  is  to  take  Is  certain, 
and  that  person  dies  before  the  happening  of 
the  contingency,  his  representatives  or  heirs 
take  bis  Interest.  Buck  v.  Lentz,  49  Md.  439 ; 
Hambleton  t.  Darrington,  36  Md.  434;  De- 
miU  V.  Reld,  71  Md.  175,  17  Atl,  1014.  By 
tbe  terms  of  the  will  the  sisters  and  brother 
were  to  take  In  the  event  of  the  death  of  his 
daughter  leaving  no  child  or  children.  At 
the  time  of  the  daughter's  death  all  of  the 
sisters  and  brothers  were  dead.  The  court, 
in  construing  the  will  and  determining  the 
parties  entitled  under  its  terms,  took  proof 
as  to  whom  were  the  heirs,  or  otherwise  en- 
titled, of  tbe  deceased  brother  and  sisters, 
and  determined  them,  and  held  that,  since 
the  wishes  of  the  testator  had  been  gratified 
and  the  persons  entitled  were  sul  Juris,  the 
trust  would  be  terminated  upon  their  request 
and  consent. 


[3]  We  must  hold  then  that  with  these  par- 
ties before  the  court  it  had  Jurisdiction,  and 
that  therefore  the  decree  passed  therein  is 
not  subject  to  this  collateral  attack. 

It  follows  that  the  lower  court  was  correct 
In  passing  the  decree  from  which  this  appeal 
was  taken. 

Decree  affirmed,  with  costs  to  the  appellee. 


(131  Hd.  239) 
WESTERN  NAT.  BANK  v.  JENKINS  et  aL 
(No.  42.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  mobtoaqes    ®=>1&— fotobe    anvaitcb»— 
Validitt — Statutes. 

Mortgages  for  future  advances  are  still  valid 
in  Maryland ;  Laws  1825,  c.  50,  and  Laws  1872, 
c.  213,  codified  in  Code  Pub.  Gen.  Laws  1904, 
art.  66,  g  2,  being  strictly  regulations,  not  pro- 
hibitionR,  of  such  mortgages. 

2.  MOBTGAQES  @=>50— "MOBTOAOE  TO   SXCUBE 

FuTUBE  Advances" — Statute. 
Where  a  mortgagee  passed  over  to  the  mort- 
gagor, on  execution  of  the  mortgage,  the  entire 
consideration  in  money  stated  in  the  mortgage, 
taking  the  mortgagor's  promissory  note  for  the 
sum.  It  not  being  contemplated  or  suggested  that 
he  should  make  any  further  loans,  and  the  mon- 
ey was  turned  over  to  a  trustee,  to  be  applied  by 
him  in  the  construction  of  buildings  for  the 
mortgagor,  and  the  entire  amount  of  tbe  mort- 
gage loan  was  so  applied,  the  mortgage  was  not 
a  "mortgage  to  secure  future  loans  or  advances" 
within  Code  Pub.  Gen.  Laws  1904,  art.  66,  S  2, 
providing  that  no  mortgage  to  secure  future 
loans  and  advances  shall  be  valid,  unless  the 
amount  or  amounts  of  the  same  and  tbe  times 
when  they  are  to  be  made  sball  be  specifically 
stated  in  tbe  mortgage,  and  it  constituted  a  first 
lien  on  the  mortgaged  property. 

Appeal  from  Circuit  Court  of  Baltimore 
City;   H.  Arthur  Stump,  Judge. 

Suit  by  the  Roland  Realty  Company  and 
Samuel  H.  Barton  against  Robert  H.  Jen- 
kins, Alfred  Jenkins  Shriver,  Individually 
and  as  trustee,  Howard  C.  Wilcox,  trustee, 
the  Western  National  Bank,  and  Edwin  T. 
Dickerson.  From  the  decree,  the  Western 
National  Bank  appeals.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  URNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Frank  B.  Ober  and  Joseph  C.  France,  both 
of  Baltimore,  for  appellant  Vernon  Cook, 
of  Baltimore,  for  appellees. 

BURKE,  J.  The  Roland  Realty  Company, 
a  building  corporation,  hereinafter  called  the 
Realty  Company,  executed  and  delivered  a 
mortgage  to  Alfred  Jenkins  Shriver  on  cer- 
tain property  described  in  the  mortgage  to 
secure  the  payment  of  three  negotiable 
promissory  notes  made  by  the  mortgagor  to 
the  order  of  the  mortgagee.  One  of  these 
notes  was  for  the  sum  of  $62,700,  and  payable 
one  year  after  its  date;  the  other  two  be- 
ing for  the  interest  to  accrue  on  said  prin- 
cipal sum,  each  being  for  the  sum  of  $t,- 
881,  and  payable  in  6  and  12  months,  re- 
spectively, after  date.    The  notes  and  mort- 


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gage  were  dated  the  1st  day  of  August,  1911, 
and  tbe  mortgage  was  recorded  among  tbe 
land  records  of  Baltimore  dty.  A  second 
mortgage  on  tbe  property,  bearing  tbe  same 
date,  was  executed  by  tbe  Realty  Company 
and  delivered  to  Alfred  Jenkins  Shrlver  to 
secure  the  payment  of  the  sum  of  $5,000  and 
interest  thereon.  Tbe  circumstances,  brief- 
ly stated,  uuder  which  these  mortgages  were 
made,  are  as  follows:    ' 

On  July  11,  1911,  an  application  was  made 
by  the  Realty  Company  to  Alfred  Jenkins 
Shrlver  for  a  mortgage  loan  on  property  lo- 
cated on  the  north  side  of  Thirty-Seventh 
street,  lii  the  city  of  Baltimore,  between 
Chestnut  and  Elm  avenues.  The  applica- 
tion stated  that  it  was  proposed  to  erect  upon 
the  land  a  certain  number  of  dwellings 
therein  described,  which  It  was  represented 
In  the  application  would  cost  between  $2,100 
and  $2,200  each,  and  further  that  the  actual 
cost  of  the  land  to  the  appellant  was  $15,- 
333.33.  Certain  rexiresentatlons  as  to  im- 
proved land  and  sales  in  the  locality  were 
also  made.  The  amount  of  the  loan  ap- 
plied for  was  $66,000,  at  6  per  cent.,  payable 
semiannually,  for  one  year,  and  the  appellant 
agreed  to  give  a  bond  of  a  Baltimore  City 
Bonding  Company  for  tbe  amount  of  the 
mortgage  for  tbe  completion  of  the  buiidlugs. 
It  also  agreed  to  pay  a  commission  of  5  i)er 
cent,  on  the  amount  of  the  mortgage  loan 
and  a  title  fee,  tbe  amount  of  which  was  not 
at  that  time  fixed,  but  which  was  subsequent- 
ly agreed  to  be  1  per  cent,  of  tbe  mortgage 
loan.  The  applicant  further  stated  that  it 
expected  to  provide  tbe  additional  money, 
over  and  above  the  mortgage  loan,  necessary 
to  complete  the  buildings  from  tbe  sale  of 
other  real  estate  and  general  credit  This 
application  was  made  by  Charles  h.  Fulton 
on  behalf  of  the  Realty  Company.  Mr. 
Shrlver  brought  tbe  application  to  tbe  at- 
tention of  Robert  H.  Jenliins,  who  agreed 
to  make  a  mortgage  loan  of  $62,700,  Instead 
of  $66,000,  as  applied  for;  It  having  been 
found  that  the  dwellings  proposed  to  be 
built  could  be  erected  for  a  less  sum  than 
that  stated  in  the  application.  This  reduced 
amount  was  satisfactory  to  the  applicant, 
and  it  agreed  to  accept  It.  The  loan  was 
to  be  put  through  either  on  July  26  or  Au- 
gust 1,  1911.  There  Is  some  conflict  in  tbe 
evidence  upon  this,  but  it  la  not  of  any  im- 
portance In  this  casa 

The  Realty  Company  was  not  able  to  give 
the  completion  bond  provided  for  In  the 
contract,  but  It  gave  a  bond  with  Individ- 
ual sureties.  It  was  agreed  that  Mr.  Jen- 
kins should  draw  his  checks  to  tbe  order  of 
the  mortgagor  for  tbe  amount  of  the  loan, 
who  In  turn  should  pass  the  money  over  to 
Alfred  Jenkins  Shrlver,  as  trustee,  for  de- 
posit as  a  special  fund  In  the  Western  Na- 
tional Bank,  and  applied  by  Um  to  the  con- 
struction of  the  buildings  in  accordance  with 
a  schedule  of  payments  agreed  upon  by  the 
parties.    The  Realty  Company  did  not  have 


title  to  the  land  on  July  26,  1911,  but  It  es- 
pected  to  perfect  Its  title  by  August  11,  1911. 
As  Mr.  Shrlver  was  about  to  leave  tbe  city, 
the  following  things  took  place  on  July  26, 
1911,  in  connection  with  the  loan: 

On  that  day  two  checks  were  drawn  by 
Robert  H.  Jenkins  as  follows: 

"Baltimore,  July  28,  1011. 
"The  Notional  Bank  of  Baltimore: 

"Pay  to  the  order  of  tlie  Uoland  Realty  Com- 
pany forty-two  thousand  seven  hundred  doliara. 

"$42,700.00.  Robert  H.   Jenkins." 

Tills  check  was  indorsed  as  follows: 

(1)  "Pay  to  the  order  of  Alfred  J.  Shriver, 
trustee,  in  tbe  matter  of  the  Roland  Realty  Com- 
pany, for  II.  II.  Jenkins. 

"Holand  Realty  Company, 
"By  Cliailes  L.  B^ulton.  President." 

(2)  "For  dejiosit  to  acct.  of  Alfred  J.  Shriver, 
trustee,  in  matter  of  Roland  Realty  Company, 
for  R.  H.  Jenlcins,  per  Z.  Bond  Evans." 

"Baltimore,  Moryhtad,  July  26tb,  1911. 
"No.  6. 
"Maryland  Trust  Company: 

"Pay  to  the  order  of  Roland  Realty  Company 
twenty  thousand  dollars. 

"Robert  H.  Jenkins." 

Tbe  indorsements  on  this  check  were  as 
follows: 

(1)  "Pay  to  tbe  order  of  Alfred  J.  Shriver, 
trustee,  in  the  mntter  of  the  Roland  Realty  Com- 
pany, for  R.  II.  Jenkin.s. 

"Roland  Realty  Company, 
"By  Cli.irlps  I..  Fulton,  President." 

(2)  "For  deposit  to  account  of  Alfred  J.  Shri- 
ver, trustee,  in  the  matter  of  the  Roland  Realty 
Company,  for  R.  H.  Jenkins,  per  Z.  Bond 
Evans." 

The  checks  were  delivered  to  the  Realty 
Coniittuiy,  and  Z.  Bond  Evans,  whose  Indorse- 
ments appear  thereon,  was  a  clerk  in  Mr. 
Shrlver's  office.  These  checks  were  deposit- 
e<l  In  the  Western  National  Bank  under  the 
ntK>vc  indorsoments  and  were  paid,  and  the 
proceeds  carried  to  the  credit  of  Mr.  Shriv- 
er, as  trustee,  In  that  bank.  On  the  d^ioslt 
book  of  the  bank  the  following  notation  ap- 
I)ears: 

"Western  National  Bank  of  Baltimore,  July 
26.  Cash  $62,700.  Alfred  J.  Shriver,  trustee, 
in  the  matter  of  Roland  Realty  Company,  for  R. 
H.  Jenkins." 

The  bank  agreed  to  pay  3  per  cent  on  the 
deposits.  The  two  mortgages  were  executed 
on  July  26,  1911,  and  held  by  direction  of 
Mr.  Shriver  until  August  1,  1911,  when  It 
was  expected  that  the  mortgagor  would  then 
have  title,  and  the  transaction  would  be 
finally  closed.  Upon  the  return  of  Mr. 
Shriver  to  the  city  about  September  17,  1911, 
he  found  that  the  transaction  had  not  been 
put  through  as  previously  arranged.  Mr. 
Robert  H.  Jenkins  became  apprehensive 
about  the  loan,  and  expressed  a  desire  to 
call  it  oft.  After  a  number  of  Interviews  be- 
tween Alfred  Jenkins  Shrlver  and  Charles 
L.  Fulton,  the  Realty  Company  entered  Into 
the  following  agreement  on  October  4,  1911. 
under  which  the  loan  was  made: 

"Roland  Realty  Company,  in  connection  with 
the  construction  of  thirty-three  houses  on  the 
north  side  of  Thirty-Seventh  street  and  con- 
cerning the  deposit  ol  aixtj'-two  thousand  aeven 


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WESTERN  NAT.  BANK  y.  JENKINS 


669 


hundred  dollars  in  the  Western  National  Bank : 
"Whereas,  the  Roland  Realty  Company  has 
agreed  to  execute  and  deliver,  for  the  purpose  of 
having  the  same  recorded,  certain  mortgages,  be- 
ing dated  the  1st  day  of  August,  1911,  to  Al- 
fred Jenkins  Shriver,  who  in  turn  is  about  to 
assign  the  mortgage  for  sixty-two  thousand  sev- 
en hundred  dollars  to'  Robert  H.  Jenkins;  and 
whereas,  bonds  have  been  executed  of  date  of 
August  1st  by  the  said  Roland  Realty  Company, 
and  certain  sureties  therein  named  to  secure  the 
completion  of  thirty-three  houses  on  Thirty-Sev- 
enth street,  Ijetween  Chestnut  and  Elm  avenues, 
and  which  lots  of  ground  are  fully  referred  to  in 
said  mortgage ;  and  whereas,  it  was  agreed,  for 
the  purpose  of  insuring  the  prompt  construction 
of  said  houses  according  to  the  terms  of  said 
bond  according  to  the  plans  and  speciGeations 
referred  to  in  said  bonds,  and  especially  that 
they  should  be  completed  within  the  period  of 
time  mentioned  in  said  bonds,  that  the  title  to 
said  property,  subject  to  said  mortgages,  would 
be  transferred  to  Alfred  J.  Shriver,  trustee,  by 
a  deed  duly  executed  and  acknowledged,  but  to 
be  held  by  said  trustee  and  not  recorded  until 
some  default  should  occur  in  constructing  said 
thirty-three  houses  according  to  the  provisions 
indicating  the  periods  of  time  within  which  the 
stages  of  construction  should  proceed  as  herein- 
after set  forth  in  the  schedule  attached  hereto, 
or  that  some  default  should  occur  in  any  of  the 
covenants  of  said  mortgages. 

"And  it  is  also  agreed  that,  should  an^  such  de- 
fault occur,  said  deed  shall,  at  the  option  of  the 
trustee,  be  immediately  recorded,  and  that  the 
said  trustee  is  hereby  fully  authorized  and  em- 
powered to  take  possession  of  said  property,  and 
either,  in  his  discretion,  to  complete  said  houses 
from  the  funds  on  deposit  in  the  Western  Na- 
tional Bank,  and  should  additional  funds  be  nec- 
essary he  is  further  authorized  to  borrow  other 
funds  that  may  be  necessary  to  complete  said 
houses  according  to  said  plans  and  specifica- 
tions, and  he  shall  have  full  power  to  sell,  lease, 
morteage,  or  otherwise  dispose  of  said  property, 
in  his  discretion,  for  the  purpose  of  executing 
all  the  agreements  in  connection  therewith,  and 
after  deducting  all  expenses  which  he  may  incur 
for  the  purpose  of  completing  said  houses,  in- 
dnding  the  usual  commissions  to  the  trustees, 
commissions  to  a  builder,  if  it  may  be  necessary 
to  employ  a  builder,  at  10  per  cent.,  the  usual 
commissions  to  real  estate  brokers  for  the  pur- 
pose of  either  leasing,  selling,  or  mortgaging  said 
property,  and  he  shall  pay  the  balance,  if  any, 
to  tiie  said  Roland  Realty  Company. 

"It  is  also  agreed  that  the  said  trustee  may, 
on  the  demand  of  the  mortgagee,  return,  the  re- 
mainder of  said  fund  to  the  mortgagee,  should 
any  su<4i  default  occur,  or  he  may,  at  the  option 
of  the  said  mortgagee,  applj  the  same  to  the 
completion  or  the  construction  of  said  houses. 
Should  any  such  default  occur  in  the  completion 
or  the  construction  ot  said  honsea,  the  trustee 
shall  have  J.  S.  Downing,  or  some  other  experi- 
enced builder,  examine  said  honscs  and  certify 
to  the  trustee  that  the  work  has  not  progressed 
according  to  the  schedules  hereinafter  set  forth 
and  according  to  the  plans  and  specifications  and 
the  bond,  and  the  period  of  four  days  shall  elapse 
from  the  time  that  the  trustee  may  mail  any 
sncb  notice  to  said  Roland  Realty  Company  at 
its  oflSce  in  the  city  of  Baltimore,  at  1024  Fidel- 
ity Building,  before  the  trustee  shall  declare  a  de- 
fault and  take  possession  of  the  property.  The 
trustee,  may,  in  his  discretion,  for  good  and  rea- 
sonable cause  shown,  waive  any  default.  And  it  is 
further  a^eed  that,  should  any  default  occur,  in- 
terest paid  by  the  Western  National  Bank  shall 
be  paid  over  to  the  mortgagee,  but  the  amount  of 
interest  so  paid  shall  be  credited  to  the  said  the 
Roland  Realty  Company  on  account  of  the  in- 
terest due  on  the  mortgage.  Should  the  interest 
on  the  mortgage  not  be  paid  when  due,  the  trus- 
tee is  hereby  authorized  to  pay  the  interest  and 
to  deduct  the  same  from  the  payments  due  to 


said  Roland  Realty  Company  for  work  done  and 
due  to  it  for  the  construction  of  said  houses. 

"It  is  agreed  that  the  work  of  constructing 
said  houses  shall  begin  without  any  delay  on  the 
5th  day  of  October,  and  it  is  agreed  that  it  shall 
be  completed  as  to  the  stages  of  completion  and 
within  the  periods  of  time  hereinafter  set  forth 
in  the  schedules  attached  hereto  and  which  is 
considered  a  part  hereof. 

"In  testimony  whereof,  witness  the  corporate 
seal  of  the  said  Roland  Realty  Company  and  the 
signature  of  its  president. 

"[Seal.)  Roland  Realty  Company. 

"By  Charles  L.  Fulton,  President" 

Befoi%  this  paper  was  executed  Mr.  Shriv- 
er assigned  the  mortgage  to  Mr.  Jenkins  by 
assignment  dated  October  1,  1911.  Attached 
to  this  agreement  was  a  schedule  of  items, 
and  the  periods  of  time  within  which  the 
houses  should  be  completed,  and  the  times 
when  the  amounts  Mr.  Shriver,  as  trustee, 
should  pay  to  the  Realty  Company  out  of 
the  special  deposit  for  the  construction  of 
the  houses.  The  work  of  construction  be- 
gan promptly,  and  Mr.  Shriver,  as  trustee, 
paid  out  of  the  trust  fund  during  the  course 
of  the  work  the  sum  of  $40,42.5,  and  the  bal- 
ance of  the  special  deposit,  as  will  hereafter 
be  seen,  was  used  in  the  completion  of  the 
dwellings. 

In  the  appllcntlon  for  the  loan  the  Realty 
Company  stated,  as  we  have  said,  that  it 
expected  to  get  the  additional  money  needed 
for  the  completion  of  the  dwellings  from  the 
sale  of  other  real  estate  and  from  general 
credit.  This  credit  It  obtained  at  the  West- 
ern National  Bank,  which  began  on  July  28, 
1911,  to  make  loans  to  the  Realty  Company 
upon  its  promissory  notes.  Indorsed  by 
Charles  L.  Fulton  and  David  M.  Fulton.  It 
began  these  loans  with  no  idea  of  a  mort- 
gage security,  relying  largely  upon  what  it 
supposed  to  be  the  financial  responsibility  of 
David  M.  Fulton,  and  continued  them  until 
September  19,  1912,  at  which  time  the  in- 
debtedness of  the  Realty  Company  to  the 
bank  upon  demand  loans  amounted  to  $35, 
000.  About  that  date  the  bank  deemed  it 
advisable  to  get  from  the  Realty  Company 
some  further  security.  This  matter  was 
turned  over  to  Mr.  W.  Bums  Trundle,  its 
counsel,  who  caused  an  examination  of  the 
title  of  the  Realty  Company's  property  to  be 
made.  The  l)ank  knew  of  the  Jenkins  and 
Shriver  mortgage  at  the  time  it  began  ad- 
vancing money  to  the  Realty  Company,  and 
David  M.  Fulton  testified  that  he  told  the 
bank  that  the  money  deposited  "covered  this 
piece  of  property,  and  that  amount  of  money 
was  expected  to  build  the  houses,  •  •  • 
to  be  drawn  out  at  certain  intervals  as  the 
houses  were  built"  Mr.  Trundle,  after  the 
examination  of  the  title,  reported  to  the 
bank: 

"From  the  farts  stated  in  connection  with  the 
mortgage  of  the  Roland  Realty  Company  to  Al- 
fred Jenkins  Shriver  and  the  advances  made  by 
him,  Alfred  Jenkins  Shriver,  to  said  company 
after  the  date  of  the  mortgage,  that  it  was  evi- 
dently intended  to  be  a  mortgage  to  secure  fu- 
ture advances." 


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(Md. 


With  full  knowledge  of  the  two  mortgages, 
and  after  being  advised  by  Its  counsel,  the 
bank  procured  a  mortgage  from  the  Realty 
Company  to  Edwin  T.  Dlckerson,  who  was 
acting  In  Its  behalf,  for  $35,000.  This  mort- 
gage was  dated  September  21,  1912,  and 
was  assigned  by  Mr.  Dlckerson  to  the  bank 
on  October  11,  1912.  The  bank  then  noti- 
fied Mr.  Shrlver  that  the  Jenkins  mortgage 
was  void,  and  that  the  Dlckerson  mortgage 
was  the  only  valid  Hen  on  the  property, 
and  also  Informed  him  that  the  bank  pro- 
posed to  attack  the  mortgage.  Subseauently 
It  was  discovered  that  the  Realty  Company 
owed  large  sunw  to  materialmen  for  build- 
ing materials  which  had  gone  Into  the  prop- 
erty, and  to  workmen,  and  the  bank  ad- 
vanced the  money  to  pay  these  obligations, 
and  took  a  fourth  mortgage  In  the  name  of 
Mr.  Dlckerson  for  $10,400.  This  mortgage 
was  dated  October  25,  1912.  Then  ensued 
conferences  and  lengthy  correspondence  be- 
tween Mr.  Shrlver  and  the  counsel  for  the 
bank  as  to  the  rights  of  the  respective  mort- 
gagees. 

The  work  on  the  buildings  had  ceased,  and 
suggestions  were  made  that  Mr.  Shrlver  use 
the  unexpended  money  In  bank  to  complete 
the  buildings.  Default  had  occurred  In  the 
mortgage  covenants,  and  the  Realty  Com- 
pany had  defaulted  under  the  agreement  of 
October  4,  1911.  The  bank  insisted  that  the 
Jenkins  and  Shrlver  mortgages  were  Invalid, 
and  that  it  had  held  the  only  valid  Hen  on 
the  property.  Mr.  Shrlver  Insisted  that  the 
Jenkins  and  his  own  mortgage  were  valid, 
and  stood  unmovable  upon  his  rights  and 
obligations  under  the  agreement  of  October 
4,  1911,  and  refused  to  advance  any  more 
money,  except  in  conformity  to  the  provisions 
of  that  instrument  In  the  meanwhile  the 
buildings,  in  their  unprotected  and  uncomplet- 
ed condition,  were  rapidly  depreciating.  Mr. 
Jenkins  procured  a  decree  for  the  foreclosure 
of  his  mortgage,  and  Howard  WUcox  was 
appointed  trustee  to  make  the  sale. 

On  February  12,  1913,  the  blU  in  this  case 
was  filed  by  the  Realty  Company  and  Sam- 
uel H.  Barton,  a  lessee  of  certain  of  the 
lots,  against  Robert  H.  Jenkins,  Alfred  Jen- 
kins Shrlver,  Alfred  J.  Slirlver,  trustee,  How- 
ard C.  Wilcox,  trustee,  the  Western  National 
Bank,  and  Edwin  T.  Dlckerson.  The  prayers 
of  the  blU  were: 

"(1)  That  a  receiver  may  be  appointed  by  this 
court  to  take  charge  of  said  bouses  and  of  the 
remainder  of  said  fund  on  deposit  in  tbe  West- 
em  National  Bank  to  the  credit  of  Alfred  J. 
Shriver,  trustee  as  aforesaid,  and  to  proceed 
with  the  completion  of  said  houses,  and  for  said 
purpose  to  make  use  of  said  fund  so  far  as  the 
same  may  be  necessary.  (2)  That  the  said 
Robert  H.  Jenkins  and  Alfred  J.  Shriver,  in- 
dividually and  as  trustee,  as  aforesaid,  and  tbe 
said  Howard  C.  Wilcox,  trustee  as  aforesaid, 
may  be  enjoined  temporarily  and  permanently 
from  further  proceeding  in  said  foreclosure  suit, 
and  particularly  from  making  sale  of  tlie  said 
property  under  the  foreclosure  decree  as  adver- 
tised or  otherwise.     (3)  That  your  orators  may 


have  such  other  or  further  relief  as  their  cage 
may  require," 

AH  the  defendants,  except  Mr.  Wilcox,  trus- 
tee, answered  tbe  bUI,  and  on  the  15th  day 
of  May,  1913,  the  court  passed  a  decree  by 
which  Alfred  Jenkins  Shriver  was  appointed 
trustee  to  take  charge  of  the  property,  and 
also  of  the  unexpended  balance  of  the  mort- 
gage money  remaining  in  the  WSestern  Na- 
tional Bank,  and  to  use  that  sum  in  com- 
pleting the  houses.  He  was  also  empowered 
to  seH  the  property.  The  fourth,  fifth,  sixth, 
and  seventh  paragraphs  of  tbe  decree  are 
here  transcribed: 

"(4)  That  in  completing  the  houses  hereinbe- 
fore mentioned  the  said  receiver  sbaU  first  use 
tbe  sum  of  $22,475  now  on  deposit  with  the 
Western  National  Bank  above  mentioned,  and 
tbe  accrued  interest  tbereon,  which  amounts  to 
3  per  cent,  from  August  1,  1912,  and  that  in 
the  event  that  said  sum  and  interest  is  insuffi- 
cient to  complete  said  bouses  according  to  the 
original  plans  and  specifications  thereof,  and 
to  make  the  same  salable  as  above  stated,  that 
then  tbe  Western  National  Bank  shall  furnish 
all  such  further  sums  of  money  as  may  be  nec- 
essary for  that  purpose. 

"(5)  That  said  receiver  shall  pay  out  of  said 
fund  on  deposit  in  tbe  Western  National  Bank 
the  court's  costs  and  expense,  amounting  to 
about  $80.  incurred  in  connection  with  the  fore- 
closure proceedings  in  the  case  filed  in  this  court 
by  Robert  H.  Jenkins  against  tbe  Roland  Re- 
alty Company ;  said  amount  not  to  be  charged 
against  or  deducted  from  the  mortgage  claim  of 
said  Robert  H.  Jenkins. 

"(6)  Tbe  said  Robert  H.  Jenkins  and  West- 
ern National  Bank  shaU  be  entitled  to  a  first 
lien  on  all  the  property  herein  mentioned;  the 
said  Robert  H.  Jenkins  to  have  such  lien  for 
the  above  sum  of  $22,475,  with  tbe  interest 
which  sball  have  accrued  tnereon  as  above  set 
out,  and  said  Western  National  Bank  to  have  a 
lieu  for  all  such  sums  as  may  be  advanced  by 
it  under  the  terms  of  this  decree — said  liens  to 
cover  said  property,  not  only  for  the  principal 
sums  above  mentioned,  but  also  for  interest  on 
the  same  at  the  rate  of  6  per  cent,  per  annum 
from  the  time  such  sums  are  paid  to  the  receiver 
until  they  are  repaid  by  bim.  And  it  ia  further 
ordered  that  out  of  the  proceeds  of  the  sale  of 
tbe  bouses,  as  they  shall  be  sold  from  time  to 
time  by  said  receiver,  there  shall  be  paid  to 
the  said  Robert  H.  Jenkins  tbe  amount  of  the 
deposit'in  the  Western  National  Bank,  with  in- 
terest on  the  same  as  above  set  out,  and,  when 
said  sums  shall  have  been  fully  paid  and  re- 
turned to  the  said  Robert  H.  Jenkins,  that  then 
from  the  nroceeds  of  subsequent  sales  there 
shall  be  paid  the  said  Western  National  Bank 
the  amount  of  money  that  shall  have  been  ad- 
vanced by  it  under  the  terms  of  this  decree  to 
tbe  receiver,  together  with  interest  on  tbe  same, 
as  above  set  out. 

"(7)  That  all  questions  of  rights  and  prior- 
ities not  expressly  covered  herein  between  tbe 
various  parties  mentioned  in  the  pleadings  in 
this  case  are  hereby  reserved  for  the  further  de- 
cision of  this  court,  and  tbe  distribution  of  all 
proceeds  of  sale  over  and  above  tbe  amounts  re- 
quired to  reimburse  tbe  said  Robert  H.  Jenkins 
and  tbe  said  Western  National  Bank  for  the 
sums  advanced  to  the  receiver  under  this  decree 
as  above  set  forth,  shall  be  held  subject  to  the 
further  order  of  the  court." 

By  an  auditor's  report  filed  Jannary  24, 
1917,  it  appears  that  there  is  a  balance  in 
cash  in  the  hands  of  the  receiver  of  $.31,362 
and  unsold  property  of  the  valne  of  $11,017. 
These  two  amounts  are  not  sufficient  to  pay 


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WESTERN  NAT.  BAKK  v.  JENKINS 


671 


the  balance  dne  on  the  Jenkins  mortgage,  or 
the  mortgages  of  the  bank,  and  both  mort- 
gagees— Jenkins  and  the  bank — are  claiming 
the  fund  in  this  case.  The  lower  court 
awarded  the  fund  to  Mr.  Jenkins,  and  the 
appeal  in  this  case  was  taken  by  the  Western 
National  Bank  from  that  decree. 

The  sole  gronnd  npon  which  the  Western 
National  Bank  assails  the  Jenkins  mortgage 
1b  that  it  Is  alleged  to  be  a  mortgage  to  se- 
cnre  future  advances  or  loans,  and  since  the 
amounts  of  the  same  and  the  times  when 
they  were  to  be  made  are  not  specifically 
stated  In  the  mortgage,  the  mortgage  Is  void 
under  section  2,  article  66,  of  the  Code.  Mr. 
Jenkins  acted  in  absolute  good  faith  in  the 
transaction,  and  it  Is  not  claimed  that  he  had 
in  contemplation  an  evasion  of  the  provision 
of  the  Code  referred  to. 

[1]  Prior  to  the  act  of  1825  (chapter  50), 
the  validity  of  mortgages  In  this  state  to  se- 
cure future  loans  or  advances  was  well  rec- 
ognized, and  in  the  absence  of  statutory  pro- 
hibition they  were  so  regarded  wherever  the 
common  law  prevailed.  Their  use  and  con- 
venience grew  out  of  the  necessities  of  trade 
and  commerce,  and  were  availed  of  by  mer- 
chants and  bankers,  to  provide  for  continu- 
ous dealings  and  security  for  debts,  balances, 
and  obligations  to  accrue  at  any  future  time. 
Judge  Story,  In  Leeds  v.  Cameron,  3  Sumn. 
488,  Fed.  Cas.  No.  8,206,  said  that: 

"Nothing  can  be  more  clear,  both  upon  prin- 
ciple and  authority,  than  that,  at  common  law, 
a  mortgage  bona  fide  made  may  be  for  future 
advances  and  liabilities  for  the  mortgagor  to 
the  mortgagee,  as  well  aa  for  present  debts  and 
liabilities." 

See,  also,  Wilson  ▼.  Russell,  13  Md.  530, 
71  Am.  Dea  645. 

Mortgages  for  future  advances  are  still 
valid  In  this  stata  Neither  the  act  of  1825 
(chapter  60)  nor  the  act  of  1872  (chapter  213) 
forbids  them.  They  are  statutory  regula- 
tions— not  prohibitions — of  such  mortgages. 
The  first  act  was  intended  to  limit  the  effect 
and  operation  of  such  mortgages,  by  confining 
the  lien  of  the  mortgage  to  the  principal 
sum  or  sums  specified  and  recited  In  the 
mortgage.  The  evils  which  this  act  was 
Intended  to  remedy  are  fully  stated  In  Cole 
T.  Albers,  1  Gill,  412,  which  will  be  present- 
ly referred  to.  .  Under  the  act  of  1825  it  was 
not  required  that  In  a  mortgage  to  secure 
future  loans  or  advances  the  amoimts  of  the 
future  advancements  and  when  they  should 
be  made  should  be  stated  In  the  mortgage, 
but  this  requirement  was  added  by  the  act  of 
1872  (chapter  213),  which  provides  that: 

"No  mortgage  to  secure  such  future  loans  or 
advances  shall  be  valid  nnless  the  amount  or 
amounts  of  the  same  and  the  times  when  they 
are  to  be  made  shall  be  specifically  stated  in  said 
mortgages,"  etc. 

The  real  questions  In  this  case  are:  First, 
what  Is  a  mortgage  for  future. loans  or  ad- 
vances? and,  secondly.  Is  the  Jenkins  mort- 
e&ge  such  a  mortgage?  These  questions, 
jpon  the  facts  and  circumstances  In  this  case. 


considered  In  connection  with  the  law,  com- 
mon and  statutory,  upon  the  subject  of  mort- 
gages for  future  loans  and  advances,  appear 
to  us  to  present  no  real  difficulty.  In  the 
case  of  Maus  v.  McEelUp,  38  Md.  231,  Judge 
Robinson  said: 

"In  the  Cole  v.  Albers,  1  Gill,  423,  the  con- 
struction and  purposes  for  which  the  act  of  1825 
was  passed  were  fully  considered  by  this  court. 
In  that  case  the  mortgage  was  to  secure  the 
mortgagees  to  the  extent  of  $10,000.  It  appear- 
ed in  evidence  that,  at  the  time  of  its  execu- 
tion, a  much  less  sum  was  due  from  the  mort- 
gagor, but  that  the  mortgagees  were  responsible 
for  other  sums  on  account  of  the  mortgagor, 
and  that  it  was  the  intention  of  the  mortgagor, 
as  shown  upon  the  face  of  the  mortgage,  to 
protect  them  to  the  amount  of  the  $10,000,  men- 
tioned as  the  consideration.  The  court  held  the 
mortgage  was  a  valid  security  to  the  amount  of 
$10,000,  because,  that  sum  being  mentioned  in 
it,  no  one  could  be  deceived  or  prejudiced.  The 
design  of  the  lawmakers,'  says  Judge  Archer, 
'in  the  passage  of  the  act  of  182.0  (chapter 
60),  was  to  prevent  liens  on  property  to  ths 
prejudice  of  creditors,  for  amounts  and  claims 
never  contemplated  by  the  parties  at  the  time 
of  its  execution,  and  of  which  the  deed  by  its 
terms  gave  no  notice,  as  if  a  deed  were  execut- 
ed to  cover  a  mortgagee  against  all  future  lia- 
bilities of  any  and  every  description,  which  the 
mortgagor  might  incur  or  be  responsible  for  to 
the  mortgagee.  •  *  •  A  practice  prevailed 
anterior  to  the  act  of  1825  (chapter  oO)  of  tak- 
ing mortgages  for  specified  sums  of  money,  great- 
ly below  Uie  value  of  the  mortgaged  premises, 
with  a  clause  or  clauses  providing  that  the  mort- 
gaged premises  should  be  held  as  a  security  for 
all  future  liabilities  or  advances  by  the  mort- 
gagee to  the  mortgagor,  by  which  means  the 
creditors  of  the  mortgagor  were  defrauded,  son.j- 
times  by  fraudulent  combinations  between  the 
mortgagor  and  mortgagee,  or  by  the  acts  of  the 
mortgagee  alone,  who,  after  the  known  insol- 
vency of  the  mortgagor,  purchased  up  liabilities 
of  the  mortgagor  at  depreciated  rates,  and  held 
them  as  liens  on  the  mortgaged  premises  for 
their  nominal  amonnts.  •  •  •  Such  transac- 
tions the  low  wos  designed  to  meet'  We  have 
thus  quoted  at  length  the  opinion  of  the  cotirt. 
because  in  it  the  construction  and  purposes  of 
the  act  of  1825  are  fully  considered.  It  will 
thus  be  seen  that,  although  the  act  of  1826,  codi- 
fied in  article  64  of  the  Code,  was  directed 
against  any  other  or  different  principal  sum  or 
sums  of  money  than  the  principal  sum  or  sums 
that  shall  appear  on  the  face  of  the  mortgage; 
that  is,  against  new  loans  or  debts,  not  contem- 
plated by  the  parties  at  the  time  of  the  execu- 
tion of  the  mortgage,  but  contracted  subsequent- 
ly and  attached  to  the  original  debt  by  a  new 
and  springing  contract  between  the  parties." 

[2]  The  facts  show  that  Mr.  Jenkins  pass- 
ed over  to  the  mortgagor  at  the  time  of  the 
execution  of  the  mortgage  the  entire  consid- 
eration stated  In  the  mortgage,  and  took  th» 
promissory  note  of  the  mortgagor  for  that 
sum.  It  was  not  contemplated  or  suggested 
that  he  should  make  any  further  loans.  The 
money  was  turned  over  to  Mr.  Shrlver,  trus- 
tee, to  be  held  and  applied  by  him  In  the 
construction  of  the  buildings  under  the 
terms  of  the  agreement  of  October  4,  1811, 
and  the  entire  amount  of  the  mortgage  loan 
has  been  so  applied.  The  trustee  was  hold- 
ing the  money  In  trust  for  the  parties.  The 
use  and  possession  and  dominion  over  the 
money  had  passed  from  Mr.  Jenkins.  Whose 
money  was  It  that  the  trustee  was  holding? 


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101  ATIANTIC  KEPORTER 


(Md. 


Certainly  It  did  not  belong  to  Mr.  Jenkins. 
That  It  was  really  the  money  of  the  Realty 
Company,  which  It  had  borrowed  from  Mr, 
Jenkins,  and  which  the  trustee  was  holding 
for  its  benefit  under  the  provisions  of  the 
trust  agreement,  is  shown  by  the  fact  that  it 
received  from  the  trustee  more  than  $40,000 
of  the  fund  prior  to  the  commencement  of 
this  litigation,  and  has  since  secured  the  ap- 
plication of  the  whole  balance  to  the  com- 
pletion of  the  bouses.  Mr.  Jenkins  contem- 
plated and  entered  into  no  scheme  to  evade 
the  law,  as  was  done  in  Baltimore  High 
Grade  Brick  Co.  v.  Amos,  95  Md.  571,  52  Atl. 
582,  53  Atl.  148,  which,  upon  the  controlling 
facts,  was  wholly  and  entirely  different  from 
the  facts  appearing  in  this  record.  We 
therefore  hold  that  the  Jenkins  mortgage  is 
not  a  mortgage  to  secure  future  loans  or 
advances,  within  the  meaning  of  section  2, 
article  66,  of  the  Code,  and  that  it  consti- 
tuted a  first  lien  upon  tlie  mortgaged  proper- 
ty. The  decree  of  the  lower  court  properly 
awarded  the  fund  in  the  hands  of  the  receiv- 
er to  Mr.  Jenkins,  and  the  decree  will  be 
affirmed. 

As  to  the  second  mortgage  to  Alfred  Jen- 
kins Shriver  for  $3,000,  Mr.  Shriver  did  not 
appeal  fi-om  the  decree,  and,  as  there  is  no 
money  in  the  hands  of  the  receiver  to  be  ap- 
plied to  his  mortgage,  we  do  not  find  It  neces- 
sary to  pass  upon  Its  validity. 

Decree  aihrmed,  with  costs. 


(ui  Md.  as) 

CARNAGGIO  v.  CHAPMAN.    (No.  47.) 

(Court  of  Appeals  of  Maryland.    Jane  28, 1017.) 

1.  Trial  €='2i>2(8)  —  Instbuctions  — Colli- 
sion AT  Stbeet  Intebsection— Last  Cleab 
Chance. 

In  an  action  by  plaintiff  for  personal  in- 
juries sustained  when  knocked  down  b^  defend- 
ant's automobile  near  a  street  intersection,  held, 
under  the  evidence,  that  plaintiff's  prayer,  sub- 
mitting the  doctrine  <^  last  clear  chance,  was 
properly  refused. 

2.  TbIAI.  «=>2.53(9)— iNSTBaOTIONS— Mislkad- 
INO  INSTBIJCTIONS. 

An  instruction  that  the  burden  is  upon 
plaintiff  to  establish  by  a  fair  preponderance  of 
affirmative  evidence  that  the  negligence  of  de- 
fendant caused  the  accident  is  not  objectionable 
because  using  the  word  "affirmative,  especial- 
ly where  the  negligence,  if  any,  must  be  found 
in  the  affirmative  evidence  of  plaintiff. 

Appeal  from  Baltimore  Court  of  Common 
Pleas;    Morris  A.  Soper,  Judge. 

"To  be  officially  reported." 

Action  by  Antonio  Camagglo  against 
George  W.  Chapman.  Judgment  for  defend- 
ant, and  plaintiff  appeals.  Affirmed,  with 
costs  to  defendant. 

Argued  before  BOTD,  O.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  UR- 
NRR,  STOCKBRIDGE,  and  CONSTABLE, 
JJ. 


George  Washington  Williams,  of  Balti- 
more (John  Holt  Richardson,  of  Baltimore, 
on  the  brief),  for  appellant.  R.  Bayly  Chap- 
man, of  Baltimore,  for  appellee. 

PATTISON,  J.  This  is  an  appeal  from  a 
Judgment  for  the  appellee  in  an  action 
brought  against  him  by  the  appellant  to  re- 
cover damages  for  personal  injuries  sustain- 
ed by  him,  resulting  from  the  alleged  negli- 
gence of  the  appellee  in  the  operation  of  hia 
automobile. 

The  plaintiff,  Antonio  Camagglo,  while 
crosislng  Baltimore  street,  at  or  near  its  in- 
tersection with  Charles  street,  on  July  12, 
1916,  was  knocked  down  and  personally  in- 
jured by  the  car  or  automobile  of  the  defend- 
ant driven  by  him.  The  plaintiff  was  cross- 
ing from  the  north  to  the  south  side  of  Bal- 
timore street,  while  the  automobile  of  the 
defendant  was  going  west  on  Baltimore 
street. 

The  testimony  of  the  plaintiff  as  to  the 
hapi)ening  of  the  accident  is  exceedingly 
meager,  and  we  will  state  it  as  it  appears  in 
the  record.    It  is  as  follows: 

"That  the  accident  happened  at  Charles  and 
Baltimore  streets,  to  the  best  of  his  recollpption, 
at  between  3  and  4  o'clock.  That  he  was  about 
to  croRS  the  street;  had  his  eyes  open;  saw 
an  automobile.  That  be  stepped  over  in  order 
to  wait  for  this  automobile  to  go  by.  Then  an 
automobile  came  from  the  rear  of  this  one,  and 
it  struck  him.  That  the  machines  were  going 
west.  That  be  had  not  passed  Baltimore  street 
That  he  had  made  only  about  two  or  three  steps. 
That  he  was  watching  the  man  in  the  front 
machine  all  right,  and  be  was  all  right,  but  all 
at  once  unexpectedly,  the  other  machine  came 
from  the  back  of  the  one  in  order  to  pass  this 
and  struck  him.  That  the  first  machine  passed 
him.  The  socond  machine  did  not  whistle,  or 
sound  any  bell,  but  just  struck  liim.  That  it 
tried  to  pass  the  first  machine  and  struck  him." 

There  was  no  other  witness  who  testified 
for  the  plaintiff  as  to  the  happening  of  the 
accident. 

The  defendant  testified  that  he  was  driv- 
ing a  runabout  automobile  on  Baltimore 
street,  going  west.  He  stopped  when  he 
reached  Charles  street,  and  waited  until  sig- 
naled by  the  semaphore  in  charge  of  the  of- 
ficer to  proceed.  He  crossed  Charles  street 
about  6  or  7  miles  an  hour.  There  was  no 
machine  in  front  of  him  on  the  right-hand 
side  of  the  street  between  Charles  and  Han- 
over streets.  After  passing  Charles  street  he 
pulled  out  to  the  right  side  of  the  street.  He 
was  going  slowly,  and  pulled  to  the  right  so 
that  if  any  one  wanted  to  pass  him  they 
could  do  so.  A  machine  did  pass  him  going 
west  on  Baltimore  street  between  50  and  75 
feet  west  of  Charles  street  He  saw  it  pass 
him,  but  did  not  pay  much  attention  to  it. 
He  did  not  take  his  eyes  off  the  street  and 
was  going  at  that  time  about  8  or  10  miles 
an  hour.  The  other  car  was  going  probably 
15  or  18  miles  an  hour  when  it  passed  him, 
nnd  was  out  in  the  car  tracks.  He  was  tJien 
asked; 


^=3For  otber  caaet  u»  ■•me  topic  *nd  KEY-NUUBER  In  all  Key-Numbered  Dlgeitu  and  lodexei 


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CABNAGQIO  ▼.  CHAPMAJT 


673 


"Did  you  see  the  plaintiff  in  this  case  before 
the  happening'  of  the  accident?  A.  He  was  not 
oat  in  the  street.  Q.  Did  you  see  xrhere  he  came 
from?  A.  This  man  stepped  off  the  curb;  that 
is  the  only  way  I  can  figure  it  I  just  had  a 
glimpse  of  him.  He  stepped  off  the  footway, 
and  the  minute  he  did,  I  put  my  brake  on  and 
stopped  the  car." 

He  then  testlfled  that  the  left-hand  front 
wheel  was  on  the  man  when  be  stopped. 
Some  one  said: 

"  'Back,  back ;  your  front  wheel  is  on  the 
man's  leg.'    I  stopped  that  quick." 

He  further  said  "that  he  did  not  try  to 
pass  or  go  around  any  other  machine  there 
on  Baltimore  street."  Upon  cross-examina- 
tion, he  stated  that  when  he  arrived  at  the 
east  side  of  Charles  street,  there  was  not 
any  one  ahead  of  him;  that  be  was  strad- 
dling the  north  track  of  Baltimore  street,  or 
he  may  have  been  between  the  tracks.  When 
signaled  he  went  across  Charles  street  and 
stayed  on  the  right  side.  After  crossing 
Charles  street  he  drove  close  to  the  curb, 
probably  a  foot  and  a  half  from  the  curb. 
When  the  accident  occurred  he  got  out,  put 
the  man  in  the  machine,  and  rushed  blm  to 
the  bospital. 

Patrick  Leland,  police  officer  stationed  at 
the  intersectltm  of  Charles  and  Baltimore 
streets,  testlfled:  That  he  recalled  the  occa- 
sion of  the  accident.  He  saw  the  defendant's 
machine  and  another  going  west  on  Balti- 
more street.  They  stopped  east  of  Charles 
street,  and  awalt^l  the  signal  for  east  and 
west  When  It  was  given  they  both  started. 
"The  defendant  was  on  the  inside,  or  next  to 
the  north  curb  of  Baltimore  street,  when  the 
other  man  tried  to  pass  him,  and  they  both 
came  Just  together  like  that,  on  the  center 
of  the  street,  at  the  center  of  Charles  street. 
There  were  both  machines  together.  What 
called  my  attention  to  It  was  that  I  was 
watching  to  see  if  there  was  any  violation  of 
the  law,  because  the  other  machine  was  on 
the  west-bound  track,  and  before  the  acci- 
dent, about  a  second  before  the  accident  hap- 
pened, this  machine  passed  Chapman,  say 
about  a  yard  on  the  west  side  of  Baltimore 
street."  That  he  assumed  Just  a  second  aft- 
er that  machine  passed,  he  saw  Chapman's 
machine  stop  like  that,  and  somebody  shout, 
and  he  ran  over.  Q^at  be  did  not  see  a 
machine  come  around  to  the  right  of  another 
machine,  as  plaintiff  testified,  and  strike  the 
plaintiff;  both  machines  were  going  west, 
and  defendant's  machine  was  passed  by  an- 
other machine.  The  accident  happened  about 
80  feet  from  the  crossing.  That  he  gave  the 
signal  for  east  and  west  bound  vehicles; 
north  and  south  bound  were  stopped  until 
they  got  the  signal.  The  defendant  crossed 
Charles  street  at  a  speed  between  6  and  8 
miles  an  hour. 

These  witnesses,  the  defendant  and  Leland, 
were  substantially  corroborated  In  all  the 
material  facts  to  which  they  testlfled  by  John 
W.  Rice,  who  was  standing  on  the  corner  of 
Charles  and  Baltimore  streets  at  the  time 
101A.-43 


of  the  accident,  and  John  C.  Weedon,  who 
was  riding  with  the  defendant  in  the  ma- 
chine. We  will  not  state  their  testimony'  in 
full,  as  it  would  unnecessarily  prolong  this 
opinion. 

At  the  conclusicm  of  the  case  the  plaintiff 
offered  four  prayers,  designated  as  1,  1%, 
2  and  3.  The  flrst  and  third  were  grantid. 
The  others  were  rejected. 

The  defendant  offered  five  prayers.  The 
flrst  and  second  asked  that  the  case  he  tak- 
en from  the  jury,  the  first  because  of  a  want 
of  legally  sufficient  evidence,  and  the  second 
because  of  contributory  negligence  of  the 
plaintiff.  These  prayers  were  refused.  The 
third,  fourth  and  fifth  were  granted. 

There  is  but  one  exception  In  the  record, 
and  that  is  to  the  rulings  on  the  prayers. 

The  plaintiff  does  not  concede  the  correct- 
ness  of  the  court  In  refusing  its  1%  prayer, 
but  he  does  not  allude  to  it  at  all  in  his  brief, 
and  we  find  no  reversible  error  in  the  action 
of  the  court  in  its  refusal  to  grant  it. 

[1]  The  second  prayer  of  the  plaintiff  sub- 
mitted the  doctrine  of  the  last  clear  chance  to 
the  Jury.  There  was  not  the  slightest  evi- 
dence upon  which  this  prayer  could  have  been 
based,  and  consequently  it  was  properly  re- 
jected. 

[2]  The  argument  of  the  plaintiff  was  chief- 
ly directed  to  the  ruling  of  the  court  in  grant- 
ing the  defendant's  fifth  prayer.  By  this 
prayer  the  court  was  asked  to  instruct  the 
Jury  that  the  mere  happening  of  the  accident 
complained  of  raised  no  presumption  of  neg- 
ligence on  the  part  of  the  defendant  operat- 
ing the  automobile  referred  to  in  the  evidence, 
but  the  burden  is  upon  the  plaintiff  to  es- 
tablish by  a  fair  preponderance  of  affirmative 
evidence  that  negligence  on  the  part  of  said 
defendant  caused  said  accident,  and  if  the 
minds  of  the  jury  are  left  by  the  evidence  in 
a  state  of  even  balance  as  to  the  existence 
of  such  negligence,  then  the  verdict  of  the 
Jui7  must  be  for  the  defendant  The  ob- 
jection to  this  prayer  is  to  the  statement 
that: 

"The  burden  is  upon  the  i^aintifC  to  establish 
by  aiBrmative  evidence  that  negligence  on  the 
part  of  said  defendant  caused  said  accident" 

It  is  the  use  of  the  word  "affirmative"  to 
which  the  otidection  is  made.  This  objection 
we  think  Is  fuUy  answered  by  this  court 
in  SulUvan  v.  Smith,  123  Md.  558,  81  Atl. 
456.  There  was  in  that  case  a  prayer,  word 
for  word,  like  the  prayer  here  objected  to, 
and  the  same  objection  was  there  made. 
Chief  Judge  Boyd,  speaking  for  the  court, 
said: 

"That  is  met  by  the  case  of  B.  &  O.  R.  R. 
Co.  V.  State,  Use  of  Savington,  71  Md.  590, 
on  page  B&»  [18  Atl.  969,  on  page  971]  where 
Chief  Jud|;e  Alvejr  said:  'It  is  incumtient  upon 
tiie  plaintiff  to  give  some  affirmative  evidence 
of  the  existence  of  such  ncRligence.'  That  has 
been  approved  in  RUey  v.  N.  Y.,  P.  &  N.  R.  R. 
Co.,  90  Md.  53  [44  Aa  994]  and  B.  &  O. 
R.  R.  Co.  V.  Black,  107  Md.  642  [69  Atl.  439, 
72  Atl.  340].  Nor  can  we  agree  with  the  appel- 
lant that  this  prayer  prevented  the  jury  from 


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674 


101  ATLANTIC  REPOUTEE 


(Ud. 


considering  any  evidence  reflecting  upon  the  neg- 
ligence of  the  defendant,  except  that  offered  by 
the  plaintiff.  The  harden  wai  undoubtedly  on 
the  plaintiff  to  establish  by  a  preponderance  of 
evidence  that  the  negligence  on  the  part  of  the 
chauffeur  caused  the  accident.  That  might  be 
established  by  witnesses  offered  by  the  defend- 
ant, but  the  burden  was  nevertheless  on  the 
plaintiff  to  establish  it.  *  *  *  If  such  an  ex- 
pression as  that  used  in  this  prayer  now  under 
consideration  could  not  be  used,  it  would  be  dif- 
ficult to  submit  a  proper  prayer  on  the  burden 
of  proof.  What  we  have  said  above  oueht  to  be 
sufficient  to  show  that  the  use  of  the  expression 
'affirmative  evidence'  does  not  make  the  prayer 
objectionable.    •    •    •" 

We  may  also  add  to  wbat  has  been  said  of 
this  prayer  that.  If  there  was  any  negligence 
at  all  on  the  part  of  the  defendant  causing 
the  injury  complained  of,  it  must  be  found  in 
the  affirmative  evidence  of  the  plaintiff,  or 
not  at  all;  consequently  the  plaintiff  was  not 
Injured  by  the  granting  of  the  prayer.  We 
also  find  no  error  in  the  ruling  of  the  court 
on  the  defendant's  third  and  fourth  prayers. 

The  Judgment  of  the  lower  court  will  there- 
fore be  affirmed. 

Judgment  affirmed,  with  costs  to  the  ap- 
pellee. 

(Ul  Hd.  228) 

MAYOR  AND  OITX  OOUNOIL  OF  BAI/H- 

MORE  V.  SCOTT  et  al.    (No.  36.) 
(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Municipal  Cobpobations  $=>621  — Cou- 
PELUNo  Issuance  of  Buildiro  Pebhit— 
Fkaud  or  Coubt. 

Petitioner  for  mandamus  against  the  mayor 
and  city  council  of  Baltimore  to  compel  issu- 
ance of  a  permit  to  erect  a  building  could  not 
obtain  the  permit  by  mandamus  to  erect  the 
building  for  purposes  set  out  in  his  petition,  and, 
after  erection,  use  the  building  for  other  pur- 
poses, without  first  obtaining  the  mayor's  ap- 
proval, since  the  action  would  be  a  fraud  on  the 
court 

2.  Mdnicipai,  Cobpobations  €=9621— Boild- 

INO   PERUIT   —   VlOliATION— SUFFIOIEKCT   OF 

Evidence. 
In  suit  by  the  mayor  and  city  council  of 
Baltimore  to  enjoin  the  owner  of  a  building,  and 
his  tenants,  from  using  the  building  as  a 
place  where  automobiles  might  be  repaired,  etc, 
evidence  held  to  show  that  the  owner  had  vio- 
lated tlie  spirit  which  caused  the  court  to  issue 
mandamus  to  compel  plaintiffs  to  issue  to  the 
owner  a  permit  to  erect  a  building  for  automo- 
bile stores,  not  a  service  station  authorizing  the 
relief  aslicd. 

Appeal  from  Circuit  Court  No.  2  of  Balti- 
more City ;  Henry  DufTy,  Judge. 

Suit  by  the  Mayor  and  City  Council  of 
Baltimore,  a  municipal  corporation,  against 
Walter  Scott,  Firestone  Tire  &  Rubber  Com- 
pany, and  others,  bodies  corporate.  UTom 
an  order  dismissing  the  bill  of  complaint, 
plaintiff  appeals.  Reversed,  and  cause  re- 
manded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGE,  and  CONSTABLiE,  JJ. 

Alexander  Preston,  Deputy  City  Sol.,  of 
Baltimore  (S.  S.  Field,  City  Sol.,  of  Balti- 
more, on  the  brief),  for  appellant.    Randolph 


Barton,  of  Baltimore  (James  J.  McGrath,  ot 
Baltimore,  on  the  brief),  for  appellees. 

CONSTABM!,  J.  This  case  is  a  sequel  to 
that  of  Stubbs  v.  Scott,  reported  in  vn  Md. 
86,  95  Atl.  1060,  Wherein  the  appellant  in 
that  case,  as  inspector  of  buildings  of  Balti- 
more city,  was  directed,  by  the  writ  of  man- 
damus, to  issue  to  the  appellee  a  permit  to 
erect  a  building  as  prayed  for.  The  present 
appeal  Is  from  an  order  dismissing  the  bill 
of  complaint  of  the  appellant  in  the  present 
case,  praying  for  an  injunction  to  restrain 
the  appellees  from  using  the  building,  erected 
under  the  aforesaid  permit.  In  the  manner 
they  are  now  doing. 

[1]  It  appears  from  the  record  that  Walter 
Scott,  one  of  the  appellees,  on  the  18th  day 
of  June,  1915,  filed  bis  petition  In  the  sn- 
perlor  court  of  Baltimore  city,  praying  that 
the  writ  of  mandamus  be  directed  to  the 
building  inspector  of  Baltimore  city,  requir- 
ing him  to  issue  to  the  petitioner  a  permit 
for  a  building,  to  which  we  will  refer  more 
in  detail  later.  The  petitioner  recited  there- 
in that: 

"In  or  about  the  month  of  February,  1915,  de- 
siring to  erect  and  conduct  a  salesroom  and 
service  station  for  the  sale  of  automobiles,  and 
for  the  other  purposes  incident  to  the  business  of 
such  establishments" 

— he  applied  to  the  defendant  for  a  permit 
to  erect  a  building  suitable  for  that  business, 
on  the  lot  of  ground  situated  on  the  east 
side  of  St  Paul  street,  between  Mt.  Royal 
avenue  on  the  north  and  Preston  street  on 
the  south,  having  a  frontage  on  said  street  of 
110  feet  and  a  depth  of  122  feet  and  6  inches 
back  to  an  alley  running  parallel  with  said 
St.  Paul  street  and  of  a  width  of  20  feet.  It 
was  then  recited  that  the  said  permit  was  not 
granted,  and  that  "subsequently  your  petition- 
er, being  still  anxious  to  secure  a  location 
on  said  lot  for  the  sale  of  automobiles,  aban- 
doned the  idea  of  establishing  a  service  sta- 
tion at  the  place  named,  and  purchased  said 
lot  of  ground  from  the  ovmers  of  the  same  and 
now  own  said  property,"  and  that  he  again 
made  application  to  the  defendant  "for  a  per- 
mit to  erect  on  said  lot  four  stores  for  general 
business  purposes.  In  accordance  with  the  pro- 
visions of  the  plat  and  specifications  herewith 
filed;  •  •  •  that  your  petitioner  propos- 
es to  use  one  of  said  stores  for  the  purpose  of 
exposing  for  sale  and  for  selling  automobiles; 
that  the  other  stores  be  proposes  to  rent,  or, 
if  it  proves  to  be  expedient  so  to  do,  to  sdl 
them,  when  they  will  be  used  for  such  purposes 
as  stores  so  located  may  be  profitably  used." 
This  application  was  also  refused.  The  court, 
after  bearing  the  testimony,  in  which  the  pe- 
titioner fully  explained  the  purposes  for 
which  he  intended  to  use  the  bunding  under 
his  first  application  as  well  as  under  his  sec- 
ond application,  directed  the  writ  of  manda- 
mus to  issue.  This  court  on  appeal  affirmed 
that  decree.  Chief  Judge  Boyd,  in  delivering 
the  opinion  of  the  court  on  that  appeal,  said: 


^9For  other  cases  see  sama  topic  and  KEY-NUMBER  In  all  Key-Numbered  Digest*  and  Isdexts 


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Md.) 


MAYOK  A  CITT  COUNCIIi  OF  BALTIMORE  r.  SCX3TT 


675 


"He  (Stubbs)  admitted  that  he  was  inflaenced 
by  the  facts  that  the  plan  of  the  building  was 
susceptible  of  being  used  as  a  garage,  and  that 
the  second  applicant  was  the  same  person  as 
the  first  applicant.  He  also  admitted  that  he 
discredited  Mr.  Scott's  good  faith  end  his  state- 
ment that  he  wanted  It  now  for  stores,  •  •  • 
As  we  have  seen,  the  petitioner  in  this  case  ask- 
ed for  a  mandamns  to  compel  the  respondent  to 
issue  a  permit  'to  erect  on  said  lot  four  stores 
for  general  business  purposes,  in  accordance 
with  the  provisions  of  the  plat  and  specifications 
herewith  filed.'  The  order  of  the  lower  court  di- 
rected 'that  the  writ  of  mandamus  be  forthwith 
issued  in  manner  and  form  as  pra;ed  in  said 
petition,'  and  we  cannot  admit,  as  understood 
It  to  be  suggested  at  the  argument  by  counsel 
for  appellant,  that  the  petitioner  can  obtain  a 
permit,  through  the  aid  of  the  court,  to  erect  a 
building  for  purposes  set  out  in  his  petition,  and 
then,  after  he  has  erected  the  building,  make  use 
of  it  for  purposes  such  as  he  is  not  entitled  to 
use  it  for,  without  first  obtaining  the  approval 
of  the  mayor,  particularly  for  such  purposes  as 
his  petition  shows  he  first  asked  a  permit  for, 
which  was  refused.  That  would  be  a  fraud  on 
the  court  which  granted  him  the  relief  prayed 
for,  and  any  attempt  to  perpetuate  it  could 
and  should  promptly  be  checked.  We  are  not 
now  called  upon  to  pass  on  the  validity  of  the 
ordinance,  in  so  far  as  the  particular  provisions 
applicable  to  garages,  etc.,  and  numbered  5,  are 
concerned,  inasmuch  as  if  the  petitioner  desired 
to  attack  the  ordinance  he  could  have  done  so, 
bnt,  practically  conceding  it  to  be  valid,  aban- 
doned further  effort  to  get  that  permit,  and  now 
seeks  one  for  another  avowed  purpose.  Hence 
we  say  he  would  not  be  permitted  to  erect  a 
building,  under  a  permit  obtained  by  the  help 
of  the  court,  for  the  purpose  stated  in  the  peti- 
tion, and  then  use  it  for  other  purposes  which 
were  denied  him.  We  do  not  mean  to  say  he 
cannot  use  a  store  to  exhibit  automobiles  for 
sale,  as  he  says  his  intention  is,  but  he  cannot, 
under  the  permit  to  be  granted  under  this  pe- 
tition, use  it  as  a  garage  or  service  station,  such 
as  he  first  applied  for." 

All  that  remains  for  us  to  determine,  upon 
this  appeal.  Is  whether  or  not  there  has  been 
such  a  use  of  the  building  as  to  evidence  a 
total  disregard  of  the  reasons  expressed  by 
this  court,  as  to  why  the  permit  should  be 
granted.  And  for  this  purpose,  no  better 
method  can  be  employed  than  to  examine  the 
testimony  of  Scott,  given  during  the  trial  of 
the  petition  for  the  mandamus.  In  reference 
as  to  what  purpose  he  had  intended  to  put 
the  building  to  when  he  first  applied  for  the 
permit,  and  what  be  said  his  Intention  was 
on  his  application  for  the  second  permit,  and 
to  contrast  that  testimony  with  that  in  the 
present  appeal: 

"Q.  Did  you  ever  apply  to  the  authorities 
fax  Baltimore  for  a  permit  to  erect  and  conduct 
a  salesroom  and  service  station  for  the  sale  of 
automobiles  on  St.  Paul  street?  A.  Yea,  sir.  Q. 
When  was  that?  A.  That  was  early  in  the 
spring,  or  late  winter.  Q.  What  did  you  con- 
template having  there  at  that  time?  A.  A  serv- 
ice department.  Q.  What  is  a  service  station? 
A.  It  is  a  service  department  It  is  a  place 
-where  you  take  care  of  cars  you  sell  and  keep 
tfaem  in  running  order;  if  anything  gets  out  of 
order  and  needs  attention,  it  is  the  place  where 
you  give  it  to  them ;  they  get  attention  there. 
Q.  You  have  workmen  for  the  purpose  of  repair- 
ing? A.  Tcs,  sir.  Q.  Some  blncksmithing  is 
done?  A.  No.  Q.  Is  not  that  an  incident  to 
repairs  that  take  place?  A.  It  conld,  but  we 
oon't  run  it  that  way ;  most  of  the  parts  we  fset 
from  the  factory.     Q.  You  do  havQ  hammermg 


and  noises  of  that  kind  incident  to  makhig  re- 
pairs? A.  Yes,  sir.  Q.  This  peculiarity  of  a 
service  station  is  different  from  some  other  kind 
of  station,  is  it  not?  A.  I  don't  exactly  get 
that.  Q.  A  service  station  is  where  you  re- 
pair automobiles?  A.  Yes ;  give  them  whatever 
attention  is  required.  Q.  As  they  come  in,  do 
you  take  them  on  storage?  A.  No,  sir.  Q. 
That  is  not  an  incident  of  a  service  station? 
A.  We  do  not,  but  probably  some  other  places 
do.  Q.  Is  not  that  one  of  the  incidents  of  a 
service  station  also  taking  them  on  storage?  A. 
That  is  optional  with  the  man ;  of  course,  some 
do." 

He  then  testified  from  the  plans  and  speci- 
fications filed  as  exhibits  that: 

The  building  to  be  erected  would  be  a  two- 
story  one,  containing  four  stores  on  the  lower 
floor,  each  with  a  frontage  of  27%  feet,  and  a 
depth  of  122%  feet;  that  the  part  of  the  build- 
ing he  intended  to  occupy  was  the  front  portion 
of  the  second  store  from  the  south  end  of  the 
building,  the  dimensions  of  which  were  27^  feet 
at  the  front  to  a  depth  of  40  feet.  Q.  You  are 
going  to  use  the  first  40  feet  as  a  storeroom;  that 
is,  an  exhibition  room?  A.  Yes,  sir.  Q.  What 
are  you  going  to  use  the  balance  in  the  rear  for? 
A.  In  the  rear,  I  am  going  to  rent  that  for  any- 
thing that  I  can  use  it  for,  anything  at  all,  it 
is  for  rent.  Q.  You  are  going  to  keep  auto- 
mobiles there  for  sale?  A.  Yes ;  that  is  the 
idea.  Q.  As  a  matter  of  fact,  that  in  reality 
is  the  kind  of  business  you  wish  to  conduct,  the 
kind  that  the  Zell  and  the  Mardel  people  con- 
duct? A.  Not  exactly ;  no,  sir,  I  wish  to  con- 
duct what  I  now  conduct,  sales  agency,  and  to 
take  care  of  my  own  customers,  my  business  has 
grown,  and  I  am  not  in  a  proper  neighborhood 
for  the  business  I  want  to  get ;  I  want  to  get 
in  an  automobile  district.  I  want  to  show  my 
goods  where  the  other  large  dealers  in  Balti- 
more show  theirs ;  that  is  why  I  want  to  get 
down  there;  that  is  the  main  reason;  a  serv- 
ice station  can  be  added  afterwards;  it  makes 
no  difference  about  a  service  station,  but  I  want 
to  have  the  sales  store  there,  I  want  to  get 
there  so  that  when  people  go  from  Zell's  they 
will  walk  into  my  place,  or  from  the  Mardel 
place,  which  is  only  a  square  or  less  than  a 
square  further.  Q.  Your  original  plans,  the 
ones  which  were  not  granted,  call  for  a  service 
station?  A.  Yes.  Q.  What  do  you  mean  by 
service  station?  A.  I  mean  a  place  to  take 
care  of  cars  I  sell,  and  keep  them  m  running  or- 
der. Q.  Keep  them  in  repair,  is  that  right?  A. 
Yes,  sir.  Q.  Back  of  that  salesroom,  will  there 
be  one  or  more  rooms?  A.  Back  of  the  sales- 
room, on  account  of  not  getting  the  permit  that 
I  wanted,  I  would  rent  for  some  purpose,  I 
would  rent  out,  I  would  have  to  rent  that  out; 
what  I  am  desirous  of  getting  is  a  salesroom; 
in  the  rear  of  that,  I  cannot  have  a  service  sta- 
tion, and  I  will  rent  it  out  for  any  purpose  I 
can  rent  it  out  for;  I  would  fix  that  up  to  suit 
some  tenant  I  will  have  to  get;  that  room  will 
not  be  any  good  to  me  there." 

Could  testimony  have  been  made  stronger 
than  this  to  convince  the  coort  that  Scott 
bad  absolutely  given  up  all  Idea  of  having 
a  service  station  upon  the  premises,  and 
that  he  had  fully  made  up  his  mind  to  con- 
fine bis  efforts  to  a  salesroom  alone  without 
thought  of  doing  repair  work  of  any  kind. 
It  Is  not  necessary  to  quibble  over  the  tech- 
nical meaning  of  the  expressions,  "public  or 
private  service  stations,"  or  "public  or  pri- 
vate garages,"  for  we  have  In  plain  language, 
from  Scott,  Just  exactly  the  character  o£ 
service  station  he  sought  In  his  first  applica- 
tion, and  in  emphatic  language  that  he  had 


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101  ATLANTTIO  REPORTER 


(Md. 


abandoned  the  Idea  for  Buch  a  station.  It 
la  no  wonder  then  that  this  court,  with  the 
opinion  that  Scott  had  a  legal  right  to  erect 
stores  upon  his  lot,  together  with  Scott's  dis- 
claimer, of  any  Idea  of  using  the  stores  for 
any  other  purpose,  brushed  aside  the  argu- 
ment of  the  counsel  for  the  city,  based  upon 
no  proof,  that  the  second  application  was  a 
mere  subterfuge  to  gain  what  he  had  lost 
on  the  first  application. 

Now,  let  ns  Inquire  what  was  done  by 
Scott  after  the  building  was  erected,  and 
what  was  being  done  by  him  and  his  tenants 
at  the  time  of  the  fiUng  of  this  bill.  The 
building  was  erected  according  to  the  plans, 
and  was  divided  into  four  stores,  on  the 
lower  floor,  of  equal  widths  and  equal  depths, 
the  two  adjoiuing  stores  to  the  north  were 
leased,  for  a  period  of  years,  to  the  Firestone 
Tire  &  Rubber  Ck>mpany,  for  the  purposes,  as 
expressed  in  the  lease,  of  carrying  on  "the 
operation  of  its  business  as  a  salesroom  and 
other  purposes  pertaining  to  said  business, 
such  as  storing  of  stock,  repairing  and  serv- 
ice purposes."  The  lease  contained  the  con- 
dition that  it  would  "abide  by  and  perform 
all  of  the  requirements  of  law,  or  dty  ordi- 
nance touching  the  said  premises,  and  any 
business  to  be  carried  on,  or  about  the  same." 
The  store  at  the  south  end  of  the  building 
was  leased  for  a  term  of  years.  And  the 
lessee  covenanted  that  it  would  not  "cause,  or 
suffer  any  noisy,  offensive  or  improper  use 
of  said  premises  to  be  made,  or  use  any  part 
tliereof  for  any  purpose  more  injurious  than 
tliat  of  a  salesroom  for  automobiles,  automo- 
bile supplies,  and  accessories;  nor  do  any- 
thing, nor  to  permit  anything  to  be  done, 
which  in  any  way  would  conflict  with  the 
laws,  rules  or  ordinances  of  the  city  of  Balti- 
more." The  remaining  store  Is  occupied  in 
its  enUrety  by  Scott  After  the  filing  of  the 
bill,  the  Little  Giant  Sales  Company  is  al- 
leged to  have  sold  out  Its  Interest  to  the  Reo 
Maryland  C!ompany,  which  company  is  now 
occupying  those  premises,  though  the  presi- 
dent seems  to  l)e  the  same  person.  Scott  has 
the  agency  for,  and  sells  the  Marmon  Pleas* 
ure  Car,  and  the  Reo  Maryland  Company  has 
the  agency  for,  and  sells  the  Reo  Truck.  So 
the  building  is  occupied  by  three  concerns, 
engaged  in  the  sale  of  automobiles,  or  their 
accessories.  Under  our  previous  decision, 
there  could  be  no  objection  to  this,  bnt  it  is 
contended,  and,  in  our  opinion,  proved  by 
the  overwhelming  weight  of  the  testimony, 
that  they  are  doing  more  than  this.  In  fact, 
so  far  as  the  testimony  of  Scott  is  concern- 
ed, it  Is  admitted  that  he  is  doing  more,  but 
It  Is  claimed  by  him  that  what  he  is  doing 
Is  that  which  is  necessary  for  the  prosecution 
of  his  business  of  selling  automobiles.  What 
we  refer  to  is  that  all  of  these  concerns  are 
conducting  service  stations.  According  to 
the  proof,  and  the  admissions,  the  Reo  Mary- 
land Company  and  Scott  are  both  repairing 
automobiles  upon  the  premises  In  large  num- 


1  t>ers.  Scott,  In  admitting  this,  testifies  that 
in  making  repairs  he  confines  himself  ex- 
clusively to  the  cars  which  he  sells  and  to  tbe 
cars  of  different  makes  which  he  takes  lu 
exchange,  or  part  payment,  of  those  he  sells. 
He  testified  that  he  employed  four  workmen 
on  the  premises,  but  that  no  work  was  done 
on  any  of  these  cars,  but  that  character  ot 
work  which  could  be  done  by  physical  labor 
without  the  aid  of  machinery,  such  as  was 
pro<lucod  by  power.  The  proof  shows  that 
the  Reo  Company  does  Its  work  in  the  same 
way,  with  the  difference  that  it  does  not 
confine  Itself  to  its  own  make  of  trucks,  and 
those  taken  In  exchange,  but  takes  In  gener- 
ally any  car,  and  has  a  sign  over  Its  place  ot 
business  "Reo  I^^ergency  Station." 

[2]  Without  going  Into  detail  of  the  testi- 
mony, we  are  of  the  c^lnlon  that  Scott  has 
flagrantly  violated  the  spirit  which  caused 
a  permit  to  erect  stores  to  t>e  extended  to 
him,  as  a  short  extract  from  his  testimony 
in  this  case  will  show: 

"Q.  I  am  not  asking  you  what  you  wanted  to 
do.  We  ail  know  that,  and  stopped  you  from 
doing  it.  I  am  asking  you  now  what  you  did 
do,  you  got  a  permit  to  put  a  building  there 
with  stores  in  it,  did  you  not?  A.  Xes,  sir. 
Q.  And  then  you  added  a  service  station  op  your 
own  account,  did  you  not?  A.  On  my  own  ac- 
count? Q.  Yes?  A.  What  do  you  mean  by  my 
own  account?  Q.  You  did  not  have  a  permit 
for  a_ service  station?  A.  No,  I  did  not  have  a 
permit  for  a  service  station,  I  had  a  permit  to 
put  a  building  up  there,  and  I  took  it  from  that, 
to  sell  automobiles,  that  was  an  incident  to  tbe 
sale,  a  necessity  to  the  sale,  and  as  long  as  I 
conducted  tbe  place  as  a  private  place,  and  not 
aa  a  public  place,  there  would  not  be  any  ob- 
jection." 

We  need  only  refer  to  his  testimony  given 
in  the  mandamus  case,  and  quoted  above  by 
us,  to  show  conclusively  that  this  Is  exactly 
what  he  had  applied  for  in  his  flrst  applica- 
tion for  a  permit,  and  which  had  been  aban- 
doned by  him  upon  the  refusal  of  that  per- 
mit. And  that  is  the  very  thing  which  this 
court  said,  in  its  opiulon,  should  promptly  be 
checked  if  he  attempted  to  da  We  do  not 
think  It  was  possible  for  him  to  have  mis- 
understood this  language: 

"We  do  not  mean  to  say  be  cannot  use  a  store 
to  exhibit  automobiles  for  sale,  as  he  says  his  in- 
tention is,  but  he  cannot,  under  the  permit  to 
be  granted  under  this  petition,  use  it  as  a 
garage  or  service  station,  such  as  he  first  applied 
for." 

He  had  told  the  court.  In  tbe  plainest  kind 
of  language,  what  bis  idea  of  a  service  sta- 
tion was,  and  that  he  was  not  asking  for  a 
permit  for  that  Upon  such  assurance,  his 
permit  was  granted  for  an  exhibition  room 
for  automobiles.  And  yet,  now,  he  admits 
that  he  is  doing  Oie  very  selfsame  thing  that 
this  court  had  said  he  should  not  do. 

The  Firestone  Tire  &  Rubber  Company,  as 
its  name  implies,  is  a  concern  dealing  in  au- 
tomobile tires.  As  we  have  pointed  out 
above,  Scott  leased  two  of  the  stores  to  it 
for  the  purposes  of  a  salesroom  and  other 
purposes  pertaining  to  said  business,  such 
as  storing  of  stock,  repairing,  and  service 


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MATOR,  ETC.,  OP  BALTIMORE  ▼.  CHESAPEAKE  A  P.  TEL.  CO. 


677 


purposes.  On  the  day  the  company  moved 
into  Its  new  quarters,  there  appeared  In  the 
Daily  Press  of  Baltimore,  a  write-up  Inspir- 
ed by  the  manager  of  the  company  of  its 
new  quarters,  and  what  the  automobile  pnb- 
Hc  could  expect  of  it.  The  article  is  too 
long  to  reproduce  In  this  opinion,  and  we 
will  content  ourselves  with  a  few  extracts 
as  illustrating  the  trend  of  the  whole  article: 
"On  the  first  floor  will  be  a  garage  occupying 
3,000  square  feet.  This  will  be  used  for  motor 
trucks,  which  can  drive  in  from  the  alley  in 
the  rear.  The  hydraulic  press  of  200  tons'  ca- 
pacity is  in  this  garage,  and  the  owner  of  a 
truck  may  take  hui  truck  to  this  garage  and 
have  tires  pressed  on  bis  wheels  in  the  quickest 
time  with  experts.  This  garage  is  eauipped  to 
take  care  of  ail  the  needs  of  a  wheel  oi  a  truck." 

Again: 

"The  manager  of  the  local  Firestone  branch 
states  that  the  new  branch  here  is  one  of  the 
most  complete  in  the  entire  country,  and  that 
everything  has  been  done  towards  rendering  the 
best  possible  service  to  users  of  Firestone  tires, 
whether  pneumatic  or  solids  for  trucks.  Spe- 
cial equipment  has  been  installed  to  take  care 
of  truck  tire  users,  and  the  owners  of  trucks 
will  find,  says  Mr.  Leisure,  that  Firestone  serv- 
ice here  will  be  nnparalleled  in  any  part  of  the 
entire  country." 

And  again: 

"Practically  24  hours  a  day  service  will  be 
Tendered  truck  users  at  the  new  Firestone 
branch.  •  •  •  He  will  be  told  that  he  can 
bring  his  trucks  into  the  Firestone  Garage  late 
at  night  and  workmen  will  be  kept  there  to  press 
on  the  tires  when  the  trucks  arrive. 

"Service  to  Truck  Owners. 

"This  new,  fully  equipped  branch  brings  fao- 
tory  efficiency  to  you.  Workmen  with  all  the 
ability  of  home-plant  experts  are  here  with  com- 
plete shop  equipment.  Depend  on  us  to  keep 
yonr  trucks  moving.  Command  the  .facilities 
of  this  service  station  when  your  truck  needs  at- 
tention.   It  was  installed  to  serve  yon." 

The  proof  shows  conduaiv^  that  they 
were  doing  all  that  their  advertisement 
claimed  that  they  would  do.  They  had  in- 
stalled the  large  hydraulic  press,  which  from 
fbe  proof  seems  to  have  been  in  almost  con- 
stant use  night  and  day,  disturbing  a  num- 
ber of  the  neighbors  by  the  noises  produced 
by  It.  Trucks  were  coming  and  going  and 
blocking  up  the  alley  in  the  rear  constantly. 
In  OUT  opinion  they  cannot  and  should  not 
be  permitted  to  use  these  stores  In  the  man- 
ner they  have  been  doing  since  the  first  day 
ot  their  occupancy.  The  service  which  they 
are  giving  to  the  automobile  public,  with  the 
exception  of  the  actual  sale  of  tires,  Is  abso- 
lutely contrary  to  the  conditions  under  which 
tlie  bnilding  permit  was  granted  to  Scott 

As  stated  above,  the  Little  Giant  Sales 
Company  alleged  in  its  answer  that  It  sold 
out  Its  interest  in  the  lease  to  the  Reo  Mary- 
land Company.  The  bill  was  not  amended 
so  as  to  make  the  Reo  Maryland  Oompany  a 
party  defendant,  and  therefore  there  is  no 
prayer  against  it  for  relief,  but  the  prayer 
aslcs  for  reUef  only  against  the  original  de- 
fendants, "and  each  of  them,  their  agents 


and  servants,"  so,  notwithstanding,  we  think 
that  in  a  proper  proceeding  the  Reo  Com- 
pany should  be  enjoined  nevertheless  in  this 
proceeding  we  are  not  directing  in  remand- 
ing the  case,  that  the  injunction  shall  issue 
against  it.  But  if  there  Is  any  disposition 
shown  on  Its  part  to  ignore  this  opinion,  the 
appellant  should  have  no  dilBculty  in  secur- 
ing immediate  relief  for  its  infractions. 

The  Marmon  &  Cole  Sales  Company,  one 
of  the  defendants.  Is  not  shown  to  have  had 
any  connection  whatever  with  the  building, 
or  any  of  the  business  therein  conducted,  and 
took  no  part  in  these  proceedings,  by  answer 
or  otherwise. 

For  the  above  reasons  we  will  reverse  the 
order  appealed  from,  and  remand  the  cause 
in  order  that  an  injunction  may  issue  as 
prayed  against  all  the  defendants,  with  the 
exception  of  the  Marmon  &  Cole  Sales  Com- 
pany. 

Decree  reversed  and  cause  remanded,  the 
appellees  to  pay  the  costs. 


(Utl  Hd.  60) 
MATOR  AND  CITY  COUNCIL  OF  BALTI- 
MORE et  al.  V.  CHESAPEAKE  &  POTO- 
MAC TELEPHONE  CO.  OF  BALTIMORE 
CITY.    (No.  eO.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Taxation  ©=s>466,  493(7)  —  Assessment  — 
Appeal. 

Under  Laws  1914,  c.  841,  adding  section  238 
to  Code  Pub.  Civ.  Laws,  art.  81,  creating  the 
state  tax  commission,  and  providing  that  any 
taxpayer,  having  been  assessed  by  the  order  of 
the  county  commissioners  or  the  appeal  tax  court 
of  Baltimore  city,  after  a  hearing,  may  appeal 
to  the  state  tax  commission,  etc.,  and  section  244 
(added),  providing  that  appeals  from  any  action 
of  the  state  tax  commission  to  the  city  court 
shall  be  taken,  within  30  days  of  such  action,  by 
petition  setting  forth  the  question  or  questions 
of  law  desired  to  be  reviewed,  the  state  tax  com- 
mission had  jurisdiction  to  entertain  the  appeal 
of  a  telephone  company  from  an  assessment  of 
its  physical  structures  made  by  the  appeal  tax 
court  of  Baltimore  city,  and  the  Baltimore  city 
court  was  limited,  on  appeal  to  it  from  the  order 
of  the  tax  commission  reversing  the  assessment, 
to  consideration  of  the  questions  of  law  only  pre- 
sented by  the  petition,  and  could  not  review  or 
pass  upon  any  questions  of  fact  involved  in  the 
assessment  of  the  property  by  the  state  tax  com- 
mission. 

2.  Taxation  «=:>485(2)— Absesbuent  of  Tax- 
es—Review— Evidence. 

On  appeal  to  the  state  tax  commission  from 
an  assessment  made  by  the  appeal  tax  court  of 
Baltimore  city  of  the  physical  structures  of  a 
telephone  company  in  the  city^  evidence  for  the 
telephone  company  of  the  findmgs  of  the  public 
service  commission  in  the  matter  of  the  tele- 
phone company's  rate  case  was  admissible  as 
part  of  the  record  of  proceedings  of  the  appeal 
tax  court,  under  Laws  1914,  c.  841,  adding  sec- 
tion 244  to  Code  Pub.  Civ.  Laws,  art.  81.  pro- 
viding for  appeals  to  the  state  tax  commission. 

3.  Taxation  ®=>493(7)— Assessment— Review 
—Evidence. 

Oral  evidence  tending  to  impeach  the  written 
statement  of  valuation  furnished  the  telephone 
company  was  admissible. 


»Vot  otbar  euei  im  MUne  topic  and  KSY-NUMBBR  in  all  Key-Numbered  DIgesta  and  Indaxe* 


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101  ATLANTIC  REPOITER 


(Mi 


4.  TAJtATroN  «=»452— PowEES  OF  State  Tax 
Commission— Final  Decision  of  Questions 
OF  Fact — Constitutionality. 
It  was  competent  for  the  Legislature  to  con- 
fer on  the  state  tax  commisaion  power  to  finally 
decide  questions  of  fact,  without  an  appeal,  ex- 
cept upon  questions  of  law. 

6.  Taxation  «=»493(8)—As3E8smekt— Review 
—Scope— Finding  of  Fact. 
On  petition  of  appeal  to  the  Baltimore  city 
court  from  an  order  of  the  state  tax  commission 
reversing  an  assessment  made  by  the  appeal  tax 
court  of  Baltimore  city  of  the  physical  struc- 
tures of  a  telephone  company  in  the  city,  the 
first  prayer  for  ruling  of  the  mayor  and  city 
council  of  Baltimore  was  that,  if  the  court  found 
that  the  state  tax  commission,  in  reducing  the 
assessment  of  the  property  of  the  telephone  com- 
pany from  one  amount  to  another,  acted  on  the 
assumption  that  the  value  fixed  by  the  public 
service  commission  for  rate-making  pnrposes 
was  the  value  which  should  be  fixed  by  the  tax 
commission  for  purposes  of  taxation,  etc.,  the 
tax  commission  committed  an  error,  Ueld,  that 
the  prayer  was  erroneous,  as  requiring  the  court 
to  find  a  question  of  fact,  when  it  was  sitting 
to  review  questions  of  law  only,  involved  in  the 
assessment  of  the  telephone  company's  property. 
6.  Taxation  <g=493(8)— Asskssmentb— Poweb 
OF  State  Tax  Commission  —  Review  of 
Findings  on  Questions  of  Fact. 
The  final  determination  of  assessments  of  all 
property  in  the  counties,  cities,  and  towns  of 
Maryland  is  specially  conferred  by  statute  on  the 
state  tax  commission,  and  the  valuation  is  to  he 
made  according  to  its  best  judgment  from  the  ev- 
idence before  it,  and  the  courts  are  without  ju- 
risdiction to  review  its  findings  on  questions  of 
fact 

Appeal  from  Baltimore  City  Court;  Car- 
roll T.  Bond,  Judge. 

"To  be  officially  reported." 

Proceedings  to  assess  the  physical  struc- 
tures of  the  Chesapeake  &  Potomac  Tele- 
phone Company.  The  state  tax  commission 
reversed  an  assessment  by  the  Appeal  Tax 
Court  of  Baltimore  City,  and  from  an  order 
of  the  Baltimore  dty  court,  dismissing  peti- 
tion of  appeal,  the  Mayor  and  City  Council 
of  Baltimore  and  the  Appeal  Tax  Court  ap- 
peal.   Order  affirmed. 

Argued  before  BOTD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON, 
UBNER,  STOCKBRIDGE,  and  CONSTA- 
BLE, JJ. 

S.  S.  Field  and  R.  Contee  Rose,  both  of 
Baltimore,  for  appellants.  Shirley  Carter, 
of  Baltimore  (Bernard  Carter  &  Sons,  of 
Baltimore,  on  the  brief),  for  appellee. 

BRISOOB,  J.  The  appeal  In  this  case  is 
by  the  mayor  and  city  council  of  Baltimore 
and  the  appeal  tax  court  of  that  dty  from  an 
order  of  the  Baltimore  city  court,  dated 
March  19,  1917,  dismissing  a  petition  of  ap- 
peal from  an  order  of  the  state  tax  com- 
mission of  Maryland,  dated  the  16tb  day  of 
August,  1916,  reversing  an  assessment  made 
by  the  appeal  tax  court  of  Baltimore  city 
of  the  physical  structures  of  the  Chesapeake 
&  Potomac  Telephone  Company  In  the  city  of 
Baltimore.  The  form  of  the  order  is  as 
follows: 


Ordered  this  leth  day  of  August,  1916,  by  the 
state  tax  commission  of  Maryland,  that  the  as- 
sessment of  $3,214,289.00  made  by  the  appeal 
tax  court  of  Baltimore  city  of  the  poles  and 
fixtures,  aerial  cable,  aerial  wire,  undergroinid 
conduit,  underground  cable,  submarine  cable,  in- 
cluding appurtenances,  of  the  Chesapeake  &  Po- 
tomac Telephone  Company  of  Baltimore  dty,  be 
and  the  same  is  hereby  reversed.  And  it  is  fur- 
ther ordered,  that  the  poles  and  fixtures,  aerial 
cable,  aerial  wire,  underground  conduit,  under- 
ground cable,  submarine  cable,  including  am)n^ 
tenances,  of  the  Chesapeake  &  Potomac  Tele- 
phone Company  of  Baltimore  city,  situated  and 
located  in  the  city  of  Baltimore,  be  and  hereby 
are  assessed  at  the  sum  of  $2.745358.00. 
[Signed]  A.  P.  Gorman,  Jr., 
Lewin  W.  Wickes. 

Commissioners. 

It  appears  from  the  petition  of  appeal  of 
the  Chesapeake  &  Potomac  Telephone  Com- 
pany, set  out  in  the  record,  and  which  was 
filed  on  its  appeal,  before  the  state  tax 
commission  of  Maryland,  that  the  appeal 
tax  court  of  Baltimore  dty,  on  the  7tb  of 
April,  1916,  assessed  its  physical  structures 
at  the  aggregate  amount  or  value  of  $3,214,- 
289;  the  property  consisting  of  6,068  poles, 
498,509  feet  of  aerial  cable,  3,023.34  miles 
of  aerial  wire,  854,836  feet  of  underground 
conduit,  and  1,011,371  feet  of  underground 
and  submarine  cable.  By  the  second  para- 
graph of  the  petition  it  is  alleged  that,  in 
compliance  with  sections  159  and  162  of  ar- 
ticle 81  of  the  Code  of  Public  G«ieral  Laws 
of  Maryland  of  1912,  the  proper  officer  of 
the  telephone  company  furnished  to  the  ap- 
peal lax  court  of  Baltimore  dty  a  true 
statement  of  all  real  property  owned  and 
possessed  by  it  situated  or  located  in  the 
city  of  Baltimore,  state  of  Maryland,  and 
among  other  items  were  Its  poles  and  fix- 
tures, aerial  cable,  underground  conduit,  un- 
derground cable,  and  submarine  cable,  with 
their  appurtenances.  By  the  fourth  para- 
graph It  Is  further  allegeid  that  the  telephone 
company  Is  advised,  and  therefore  charges, 
that  the  assessment  made  by  the  appeal  tax 
court  of  the  items  of  property  owned  and 
possessed  by  the  company  in  the  dty  of  Bal- 
timore is  Illegal,  because  more  than  the  actu- 
al cash  value  of  the  property  aforesaid,  not 
looking  to  a  forced  sale,  and  because  In  ex- 
cess of  the  value  put  upon  the  same  items 
of  property  when  valued  according  to  law 
by  public  service  commission  of  Maryland 
for  the  purpose  of  fixing  rates  to  be  charg- 
ed for  telephone  service,  and  Is  erroneous 
by  reason  of  overvaluation,  and  is  unequal, 
in  that  the  assessment  has  been  made  by  a 
higher  proportion  of  valuation  than  other 
real  property  on  the  tax  roll  by  the  same 
officers,  and  that  the  telephone  conqtany  1* 
Injured,  or  will  be,  by  such  illegal,  uneqaal. 
or  erroneous  assessment,  and  prays  the  oom- 
mlsslou  to  review  the  assessment. 

On  the  8th  of  May,  1916,  a  copy  of  the 
petition  was  served  upon  the  appeal  tax 
court,  and  a  hearing  before  the  tax  eom- 
misslon  was  set  for  June  22,  1916,  at  1:30  p. 


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MATOK,  KTa,  OF  BALTIMORE  ▼.  CHESAPEAKE  A  P.  TEL.  CO. 


679 


m.  At  the  bearing  a  demurrer  was  Inter- 
posed to  the  petition,  and  the  d«nurrer  was 
overruled ;  but  a  demurrer  to  a  part  of  para- 
graph 4  of  the  petition  was  sustained — that 
Is,  to  so  much  of  the  paragraph  of  the  peti- 
tion of  appeal  as  refers  to  the  Illegality  of 
the  assessment  made  by  the  appeal  tax  court 
of  Baltimore,  because  the  same  Is  In  excess 
of  the  value  put  upon  the  same  items  of 
property  when  valued  according  to  law  by 
the  public  service  commission  of  Maryland 
for  the  purpose  of  fixing  rates  to  be  charged 
for  telephone  service,  because  the  same  Is 
bad  in  substance  and  insufficient  in  law. 
The  case  was  then  beard  and  fully  argued  on 
both  sides  before  the  tax  commission,  and 
on  the  16th  of  August,  1916,  the  order  here- 
in recited  was  passed,  setting  aside  the  as- 
sessment, which  had  been  made  by  the  appeal 
tax  court,  and  assessed  the  property  at  $2,- 
765,358.  The  case  was  heard  on  appeal,  in 
the  Baltimore  city  court,  on  the  16th  of 
March,  1917,  without  a  jury,  and  the  ques- 
tions submitted  for  review  and  determina- 
tion are  stated,  in  the  record  to  be  as  fol- 
lows: 

(1)  The  jurisdiction  of  the  state  tax  commis- 
sion to  entertain  this  appeal. 

(2)  The  admissibility  of  evidence  for  tlie  tele- 
phone company  of  the  findiDgs  of  the  public  serv- 
ice commission  in  the  matter  of  the  Chesapeake 
&  Potomac  Telephone  Company  of  Baltimore 
City— rate  case. 

(3)  The  admissibility  of  oral  evidence  tending 
to  impeach  the  written  statement  of  valuation 
furnished  said  telephone  company  on  March  1, 
1916. 

(4)  The  manner  and  form  of  said  order  for  ac- 
tion of  the  state  tax  commission,  dated  the  IGth 
day  of  Angust,  1916,  reversing  the  assessment  of 
the  appeal  tax  court  and  reassessing  said  prop- 
erty. 

(o>  The  method  of  computing  the  deterioration 
of  toe  property  in  said  appeal  involved. 

(6)  The  method  of  computing  the  constmction 
of  overheads  in  estimating  the  value  of  the  prop- 
erty in  said  appeal  involved. 

(7)  The  method  of  conserving  the  record  of 
proceedings  at  the  hearing  of  this  appeal,  and 
such  other  questions  of  law  involved  in  this  ap- 
peal as  may  be  raised  at  the  bearing  hereof. 

[1]  There  can  be  no  difficulty  as  to  the 
jurisdiction  of  the  state  tax  commission  to 
entertain  the  appeal  from  the  appeal  tax 
court,  raised  by  the  first  question.  By  sec- 
tion 238  of  chapter  841  of  the  Lews  of  1914, 
creating  a  state  tax  commission  for  the  state, 
It  is  provided  that: 

Any  taxpayer,  •  •  •  having  been  assessed 
by  the  order  of  the  county  commissioners  or  ap- 
peal tax  court  of  Baltimore  city,  after  a  bearing 
as  hereinbefore  provided,  may  appeal  to  the  state 
tax  commisaon.    •    •    • 

And  it  is  farther  provided,  by  the  same 
section,  that  there  shall  be  on  appeal  to  court 
on  questions  of  law  only  from  decisions  of 
tlie  state  tax  commission,  to  the  court  in 
tnat  county  where  the  property  is  situated, 
and  the  state  tax.  commission  is  empowered 
to  participate  in  any  procecdiug  in  any  court 
\rherein  any  assessment  or  taxation  ques- 
tion is  involved.  By  section  244  of  the  8am« 
act  it  is  also  provided  that  appeals  from  any 


action  of  the  state  tax  commission  to  court 
shall  be  taken  within  30  days  of  such  action 
by  petition  setting  forth  the  question  or  ques- 
tions of  law  which  it  is  desired  by  the  ap- 
pellant to  review.  All  appeals  to  court  in 
Baltimore  city  shall  be  to  the  Baltimore 
city  court,  and  there  shall  be  a  further  right 
of  appeal  to  the  Court  of  Appeals  from  any  ' 
decision  of  the  Baltimore  city  court  or  of 
the   circuit  courts  of  the   several  counties. 

It  will  be  thus  seen  that  the  circuit  court 
was  limited,  on  the  appeal,  by  the  express 
terms  of  the  statute,  to  a  consideration  of 
the  questions  of  law  only,  presented  by  the 
petition,  and  could  not  review  or  pass  upon 
any  questions  of  fact  Involved  in  the  assess- 
ment of  the  property  by  the  state  tax  commis- 
sion. The  language  of  the  act  is  clear  and 
positive  that  the  state  tax  commission  should 
have  the  final  determination  of  assessments' 
of  all  property  in  all  the  counties  and  cities 
of  the  state,  subject  to  such  review  only  by 
the  courts  as  was  provided  by  the  statute 
itself. 

[2]  There  was  no  error  in  the  ruling  of 
the  court  in  admitting  the  evidence  embraced 
in  the  second  question,  or  in  rejecting  the 
petitioner's  second  prayer,  which  prcbcnted 
the  same  question.  This  prayer  asked  the 
court  to  rule  that  the  state  tax  coinmlsslon 
committed  an  error  of  law  in  admitting  the 
proceedings  of  the  public  service  commission 
in  evidence  before  the  state  tax  commission, 
and  therefore  the  order  of  the  state  tax  com- 
mission of  August  16,  1916,  should  be  set 
aside.  This  evidence  was  admissible  as  a 
part  of  the  record  of  proceedings  of  the  ap- 
peal tax  court,  under  section  244  of  chapter 
841  of  the  Laws  of  1014. 

'But,  apart  from  this,  there  was  testimony, 
independent  of  the  findings  of  the  public 
service  commission,  as  to  the  values  of  the 
telephone  company's  property  before  the  tax 
commission,  from  which  the  values  could 
have  been  ascertained.  It  cannot,  therefore, 
be  held  that  the  findings  of  the  tax  commis- 
sion in  this  case  were  based  exclusively  upon 
the  findings  of  the  public  service  commission, 
because  It  appeared  in  evidence  from  the 
record  of  proceedings  of  the  appeal  tax  court, 
or  that  they  (tax  commission)  adopted  the 
legal  principle  ui>on  which  the  public  serv- 
ice commission  acted,  for  the  purpose  of  fix- 
ing the  rates,  as  the  basis  of  the  valuation 
of  the  property  for  purposes'  of  taxation. 

[3]  The  third  and  fourth  propositions  pre- 
sented for  review  are  without  merit.  The 
evidence  offered  under  the  third  was  admis- 
sible. The  objection  to  the  form  and  validity 
of  the  order  presented  by  the  fourth  was 
properly  overruled. 

The  fifth  and  sixth  questions  presented  by 
the  petition  are  questions  of  fact,  and  not  of 
law,  and  are  not  open  for  review  by  the 
courts.  Apart  from  the  plain  provision  of  the 
statute  controlling  this  case,  it  haahe^u  held  . 

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680 


101  ATLANTIC  BEPOKTEE 


(Md. 


by  tbls  court  that  tbe  valuation  of  property 
for  the  purposes  of  taxation  Is  not  a  Judicial 
function,  and  tbe  Legislature  could  not  law- 
fully require  this  court  to  act  as  a  final  board 
of  review  In  the  assessment  of  property; 
that  It  was  not  the  design  of  similar  stat- 
utes to  require  this  court  to  review  the  find- 
ings of  fact  made  by  the  court  below  as  to 
the  correctness  of  the  assessment  Balti- 
more City  V.  Bonaparte,  93  Md.  156,  48  Atl. 
735. 

The  seventh  question  relates  to  "the  meth- 
od of  conserving  the  record  of  proceedings 
on  tbe  appeal,"  and  seems  to  be  unimportant. 
It  was  not  pressed  In  tbe  argument,  nor 
urged  In  the  brief  of  counsel.  Tbe  record  in 
this  proceeding  appears  to  be  regular  and  In 
entire  compliance  with  the  provisions  of  the 
statute. 

[4]  The  contention  of  tbe  appellant  that  It 
was  not  competent  for  the  Legislature  to 
confer  the  power  upon  the  state  tax  commis- 
sion to  finally  decide  questions  of  fact  with- 
out an  appeal,  except  upon  questions  of  law, 
cannot  be  sustained.  No  authority  has  been 
cited  in  support  of  such  a  proposition,  and 
none  we  believe  can  be  found.  Margraft  v. 
Cunningham,  57  Md.  585;  Shellflsh  Com'rs  v, 
Man&ileld,  125  Md.  632,  94  AU.  207. 

The  remaining  objections  presented  for  our 
consideration  arise  upon  tlie  rulings  of  the 
court,  upon  the  admissibUUy  of  evidence  and 
upon  its  refusal  to  grant  the  appellants'  first 
prayer,  in  the  course  of  the  trial  in  the  Bal- 
timore city  court.  There  was  no  such  error 
In  the  rulings  of  the  court  in  sustaining  the 
objections  and  excluding  tbe  offer  of  proof 
embraced  in  the  first,  second,  and  third  bills 
of  exceptions,  disclosed  by  the  record,  that 
would  authorize  a  reversal  In  this  case.  The 
questions  and  offer  of  proof  would  have  pre- 
sented questions  of  fact,  and  not  of  law, 
and  could  not  have  been  considered  by  the 
court,  and  were  therefore  properly  excluded. 

[S]  The  appellants'  first  prayer  was  also 
properly  rejected.    It  Is  as  follows: 

If  tbe  court  finds  that  the  state  tjix  commis- 
sion, in  its  order  of  August  16,  1016,  reducing 
the  assessment  of  the  property  of  the  Chesa- 
peake &  Potomac  Telephone  Company  therein 
mentioned  from  $3,214,289  to  $2,745,258,  acted 
upon  tbe  assumption  that  the  value  fixed  by  the 
public  service  commission  for  rate-making  pur- 
poses was  the  same  value  which  should  be  fixed 
by  the  state  tax  commission  for  the  purposes  of 
taxation,  and  that  the  state  tax  commission,  in 
making  said  reduction,  simply  took  the  valuation 
of  the  public  service  commission  for  the  larger 
amount  of  said  property,  then  the  court  rules 
that  the  state  tax  commission  committed  an  er- 
ror of  law  in  makiug  said  reduction,  and  that 
said  order  of  August  16,  1916,  of  the  state  tax 
commission  should  be  set  aside. 

This  prayer  was  clearly  erroneous,  because 
it  required  the  court  to  find  a  question  of 
fact,  when  it  was  sitting  for  the  purpose  of 
reviewing  questions  of  law  only,  involved  in 
the  assessment  of  the  appellee's  property. 

[6]  The  final  determination  of  assessments 


of  all  property  in  the  counties,  cities,  and 
towns  of  the  state  la  specially  conferred  by 
tbe  statute  upon  the  state  tax  commission  It- 
self, and  tbe  valuation  is  to  be  made  accord- 
ing to  Its  best  Judgment  from  the  evidenco 
before  it,  and  the  courts  are  without  Jurisdic- 
tion to  review  Its  findings-  upon  questions  of 
fact  In  Mayor  &  City  Council  of  Baltimore 
V.  Bonaparte,  93  Md.  156,  48  Atl.  Ti5,  it  is 
said: 

If  the  valuation  of  which  the  dty  complains  in 
this  case  had  been  made  in  the  city  court  by  it 
jury,  instead  of  by  tbe  judge  sitting  without  a 
jury,  it  cannot  be  pretcnue*!  that  this  court  could 
consider  the  evidence  on  which  the  verdict  was 
founded,  with  a  view  to  overnile  or  vary  the  re- 
sult reached  by  the  jury.  If  this  be  so — and  it 
cannot  be  questioned— upon  what  principle  can 
it  be  said,  because  the  finding  was  by  a  jadfe, 
and  not  by  a  jury,  that  we  may  examine  the  evi- 
dence adduced  below  and  affirm  or  reverse  or 
modify  the  conclusion  of  fact  reached  by  tbe 
judge V 

After  a  careful  consideration  of  this  case, 
we  are  of  opinion  that  the  court  below  com- 
mitted no  reversible  error.  In  Its  order  of 
March  19,  1017,  dismissing  the  petition  on 
appeal  to  it  from  the  order  of  the  state  tax 
commission  dated  the  16th  of  August,  191*!; 
end  for  the  reasons  stated  its  order  will  be 
affirmed. 

Order  affirmed,  with  costs. 

(131  Md.  im 
AMERICAN  PIANO  CO.  v.  KNABB  et  aL 
(No.    31.) 

(Court  of  Appeals  of  Maryland.    June  27, 1917.) 

1.  Corporations  ®=>319(7)  —  Leases— Indi- 
vidual Interest  of  OFFicBn—i''RAUi>— Suf- 
ficiency OF  Evidence. 

In  action  by  lessee  against  lessors,  who  were 
also  ofiicers  or  the  plaintiff  ciirporation,  evi- 
dence that  plaintiff  was  originally  assignee  of 
a  lease,  that  the  lease  in  suit  embodied  the  same 
terms,  that  the  rent  reserved  was  the  Bsme 
amount  paid  under  the  prior  lease,  and  that 
the  lessors  subsequently  sold  the  property  for  « 
lump  sum  and  in  addition  required  a  portion  of 
the  annual  rent  to  be  paid  to  them,  held  insufli- 
cient  to  show  fraud  on  the  part  of  the  officers. 

2.  Corporations  <S=>319(7)— Lkasb— Ihmvid- 
TTAL  Intebest  or  Officers  in  Lease. 

Evidence  held  insufBcient  to  show  that  lease 
from  ofiicers  to  corporation  reserved  excess  rent- 
al, where  the  corporation,  as  assignee  of  a  prior 
lease,  had  paid  the  same  rental. 

Appeal  from  Circuit  Court  No,  2  of  Bal- 
timore City,  in  Equity;  Carroll  T.  Bond. 
Judge. 

"To  be  officially  reported." 

Suit  by  the  American  Piano  Company 
against  Ernest  J.  Knabe,  Jr.,  and  others.  De- 
cree for  defendants,  and  plaintiff  appeals. 
Affirmed. 

Argued  before  BOTD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  UBXER 
and  CONSTABLE,  JJ. 

R.  E.  Preece  and  S.  S.  Field,  both  of  Bal- 
timore, for  appellant  Chester  F.  Morrow 
and  Alfred  S.  Niles,  both  of  Baltimore  (C!ar- 


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AMERICAN  PIAKO  CO.  ▼.  KNABE 


681 


lyle  Barton  aiH  Bartlett,  Poe  &  Claggett,  all 
of  Baltimore,  on  the  brief),  for  appellees. 

URNER,  J.  The  American  Piano  Company 
is  the  lessee  of  a  lot  of  ground  and  mercan- 
tile building,  sitnated  at  the  southwest  comer 
of  F^k  avenue  and  Fayette  street.  In  the  dty 
of  Baltimore,  under  a  lease  dated  December 
29, 1908,  and  executed  by  the  appellees,  Ernest 
J.  Enabe,  Jr.,  and  William  Knabe  who  were  at 
that  time  the  owners  of  the  fee  In  the  property. 
The  lease  Is  for  a  term  of  21  years,  begin- 
ning January  1,  1909,  and  It  provides  for  a 
rental  of  $7,500  per  annum  to  be  paid  by  the 
lessee.  In  addition  to  taxes,  water  rent,  and 
other  assessments,  and  the  costs  of  Insurance 
an'd  repairs.  There  Is  a  recital  In  the  lease 
that  the  demised  property  was  already  In  the 
possession  of  the  lessee  as  the  assignee  of  a 
pre-existing  lease  from  the  same  reversioners 
to  the  William  Knabe  &  Co.  Manufacturing 
Company,  dated  January  2,  1908,  and  that  It 
was  the  desire  of  the  parties  to  the  new  lease 
that  It  should  be  executed  in  substitution  for 
the  one  previously  In  force.  The  provisions 
of  the  two  leases  were  the  same  as  to  the  rent 
and  other  charges  to  be  paid  by  the  lessee, 
and  also  as  to  the  duration  of  the  leasehold 
terms  they  respectively  created.  At  the  time 
of  the  execution  of  the  substituted  lease  to 
the  American  Piano  Company,  the  attpellee 
Ernest  J.  Knabe,  Jr.,  was  the  president  of 
that  corporation,  and  he  executed  the  lease, 
both  In  hla  oflldal  capacity  on  behalf  of  the 
lessee  company  and  In  his  Individual  Inter- 
est as  one  of  the  lessors.  By  a  deed  bearing 
the  same  date  as  the  new  lease  the  leversion 
In  the  property  was  conveyed  by  the  lessors 
to  Mr.  Theodore  Marburg,  In  conslderutlon  of 
$85,000  to  be  paid  by  the  grantee,  and  the 
agreement  on  his  part  to  pay  to  the  grantors 
annually  $1,000  of  tibe  rent  to  be  received  by 
him  nnVler  the  lease.  The  terms  of  the  pur- 
chase were  not  set  forth  In  the  deed,  only  a 
nmnlnal  consideration  being  therein  stated. 
In  March,  1915,  the  lessee  corporation  filed 
tlie  pending  bill  of  complaint,  alleging  that  it 
bad  Just  learned  of  the  agreement  In  refer- 
ence to  the  payment  by  Mr.  Marburg  to  Ern- 
est J.  Knabe,  Jr.,  and  William  Knabe,  of  a 
Ix>rtlon  of  the  rent  for  which  the  lease  pro- 
vldeid,  and  charging  in  effect  that,  with  a 
▼lew  to  such  agreement,  the  rent  which  the 
company  was  required  to  pay  had  been  fixed 
at  an  excessive  amount  by  the  Messrs.  Knabe, 
while  acting  in  the  dual  capacities  of  owners 
of  the  leased  property  and  president  and  di- 
rector, respectively,  of  the  lessee  company, 
and  that  In  thns  secnxlng  per8<»ial  profit  an'd 
advantage  for  themselves  at  the  expense  of 
the  corporation  they  practiced  a  fraud  upon 
Its  rights  which  renders  the  lease  void,  at 
least  to  the  extent  of  the  rent  which  they  re- 
served for  their  own  benefit  The  answers 
emphatically  denied  the  allegations  of  fraud, 
an'd  asserted  that  th«  rental,  for  which  the 
lease  to  the  American  Piano  Company  makes 


provision,  is  fair  and  reasonable,  and  that 
the  reservation  to  the  lessors  of  $1,000  of  the 
annual  rent,  as  part  of  the  consideration  for 
the  sale  of  the  reversion  to  Mr.  Marburg,  has 
resulted  in  no  prejudice  whatever  to  the  les- 
see's Interests. 

[1]  Upon  the  evidence  In  the  record  wb 
fully  agree  with  the  conclusion  of  the  court 
below  that  the  charge  of  fraud  has  not  been 
sustained.  There  Is  no  dispute  in  the  tes- 
timony as  to  the  salient  facts  in  the  ease, 
and  these  are  wholly  inconsistent  with  the 
theory  that  the  Messrs.  Knabe  abused  their 
official  relationship  with  the  lessee  corxM- 
ratlon  for  their  own  advantage,  or  that  any 
fraud  upon  it  In  respect  to  the  lease  In  ques- 
tion was  Ln  fact  committed.  The  rent  which 
the  company  agreed  to  pay  under  the  sub- 
stituted lease  of  December  28,  1908,  was 
the  same  in  amount  as  the  rent  it  had 
been  paying  as  the  t^iant  under  a  pri- 
or lease  which  antedated  its  organization. 
There  Is  nothing  In  the  record  to  show  that 
the  formation  of  the  American  Piano  C(m- 
pany  was  even  thought  of  when  the  preoeHlng 
lease  was  executed  In  January,  1908.  The 
Messrs.  Knabe  were  at  that  time  not  only  the 
owners  Individually  of  the  leased  property, 
but  were  also  in  control  of  the  William 
Knabe  Co.  Manufacturing  Company,  to  whldi 
the  lease  was  then  made  upon  terras  identical 
with  those  now  prevailing.  There  is  no  rea- 
son to  suppose  that  the  persons  who  thus  had 
the  same  concern  in  the  lease  with  respect 
to  both  the  contracting  interests  had  any  dis- 
position to  stipulate  for  an  exorbitant  rentaL 

[2]  According  to  the  weight  of  the  evidence 
upon  the  subject,  we  think  it  is  fairly  well 
established  that  the  rent  Is  not  in  fact  exces- 
sive. It  has  been  paid  for  more  than  six 
yeans  by  the  presMit  lessee,  without  any  sug- 
gestion that  the  amount  is  not  reasonable  and 
pr<H)er.  During  the  greater  part  of  that  pe- 
riod neither  of  the  Messrs.  Knabe  has  been  in 
a  position  to  direct  the  afFatrs  of  the  Ameri- 
can Piano  Company,  or  to  interfere,  if  they 
had  been  so  inclined,  with  its  right  to  qnes- 
tlon  the  propriety  of  their  action,  when  eenrv- 
tng  as  its  offloers,  in  assenting  to  the  terms  of 
rental  of  which  the  company  now  complains. 
If  the  reversion  had  not  been  sold,  or  the 
Messrs.  Knabe  ha'd  continued  to  sustain  the 
relation  of  lessors,  we  should  not  be  Justified, 
upon  the  evidence,  in  relieving  the  lessee  of 
the  payment  of  any  part  of  the  rent  on  the 
ground  that  It  had  been  unfairly  Imposed. 

The  execution  of  a  new  lease  direct  to  the 
American  Piano  Company,  in  substitution  for 
the  one  they  held  by  assignment  from  the 
Knabe  Company,  was  due  to  the  fact  that  Mr. 
Marburg,  who  was  about  to  purchase  the  re- 
version from  the  Messrs.  Knabe,  desired  to 
take  it  subject  to  a  lease  under  which  the 
tenant  then  in  possession  would  be  obligated 
as  an  original  party  to  the  Instrument,  and 
not  as  a  mere  assignee.  WhUe  the  substitut- 
ed lease  was  executed  for  the  leasee  company 


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101  ATI^ANTIC  REPOKTBH 


(Ml 


by  Ernest  J.  Knabe,  Jr.,  as  Its  prealdenti  his 
act  was  formally  ratified  by  Its  directors  by 
a  resolution  In  which  the  lease  was  expressly 
approved.  As  tbe  owners  of  the  reversion  In 
the  leased  property,  the  Messrs.  Knabe  held 
an  Interest  which  was  distinct  from  that  of 
the  lessee  corporation,  and  which  they  had 
an  undoubted  right  to  sell  and  oonv«y.  The 
consi'deratlon  for  such  a  sale  was  a  matter 
with  wlilch  the  lessee  was  not  concerned,  so 
long  as  Its  own  interests  were  not  affected. 
It  was  competent  for  the  reversioners  to  sell 
tbelr  estate  for  any  amount  upon  which  they 
and  the  purchaser  might  agree.  The  price 
which  they  proposed  to  Mr.  Marburg  was 
over  1100,000  but  it  was  finally  agreed  that 
he  should  pay  $85,000  outright  and  $1,000  of 
the  rent  annually.  If  the  sale  had  been  ma'de 
for  a  single  sum  equal  to  the  aggregate 
amoimts  of  the  original  and  rental  payments 
Just  mentioned,  It  is  probable  that  no  ques- 
tion would  have  been  raised  as  to  the  pro- 
priety of  the  agreement.  The  mere  fact  that 
part  of  the  consideration  was  to  be  pcdd  in 
annual  instalments,  out  of  the  rent  received 
t>y  the  grantee,  could  not  possibly  prejudice 
the  lessee  company's  Interests.  Its  obliga- 
tions and  its  rights  have  remained  wholly  un- 
affected. 

A  review  of  the  testimony  in  any  detail 
would  serve  no  useful  purpose.  The  control- 
ling facts  have  been  stated,  and  the  evidence 
and  arguments  presented  in  support  of  the 
theory  upon  which  the  suit  Is  based  bav« 
been  thoroughly  considered.  There  Is,  In  our 
Judgment,  no  sufficient  ground  upon  which 
to  invalidate  the  lease  or  the  agreement  un- 
der investigation,  or  to  doubt  the  propriety 
of  the  conduct  and  motives  of  any  of  the  par- 
ties who  participated  in  the  esecutlcm  of  those 
instruments. 

Decree  affirmed,  with  oosta. 

(131  Md.  IM) 

HcIiAUGHLIN  v.  McGBB  et  aL    (No.  S2.) 
(Court  ot  Appeals  of  Maryland.    June  27, 1917.) 

1.  C0T«TS   ®=>472(4)— CONFIJOTINO    JUBISDIC- 
TION— PSOBATK  AND    ClBCUIT   COUBTS. 

Code  Pub.  Civ.  Laws,  art  93,  |  293,  giv- 
ing orphans'  courts  concurrent  jurisdiction  with 
circait  courts  to  authorize  and  direct  the  sale 
of  real  estate  of  intestates  where  the  appraised 
value  does  not  exceed  $2,600,  and  section  295, 
authorizing  issuance  by  such  courts  of  a  war- 
rant to  appraisers,  does  not  give  an  orphans' 
court,  having  jurisdiction  of  an  estate  of  a  dece- 
dent, iuriadictum  of  the  surplus  under  a  mort- 
gage foreclosure  decree,  though  the  surplus  is 
less  than  $2,600,  so  as  to  deprive  the  circuit 
court,  rendering  the  decree  of  foreclosure,  of  ju- 
risdiction to  distribute  such  surplus. 

2.  COUBTS  9s»472(4)— CoNFUonRO  JuBisnio- 
TioN— Probate  and  Cibcuit  Ooubtb. 

'That  a  part  of  the  surplus  resulted  from  the 
saie  of  leasehold  properties  could  not  affect  the 
jurisdiction  of  the  circuit  court,  where  it  was  al- 
leged tbnt  the  deceased  mortgagor  had  no  estate, 
real  or  personal,  other  than  tliat  covered  by  the 
mortgages,  and  that  there  was  not  enough  per- 
sonal property  to  pay  the  debts  and  costs  of 
tulminist  ration. 


3.  JUDOlfEKT   «=>688— PKSeoKS    CONCLUDEI>- 
JUDGMENT  AOAINST  EXECUTOB. 

While  absolute  judgments  at  law,  obtained 
by  a  creditor  of  a  deceased  person  against  Ilia 
executor  or  administrator,  generally  amount  to 
an  admission  of  assets,  and  could  not,  prior  to 
Acts  1916.  a  14,  be  resisted  by  the  executor  or 
administrator  on  the  ground  of  a  deficiency  of 
assets,  yet,  as  between  the  creditors  and  the 
heirs  at  law  in  a  proceeding  to  subject  the  real 
estate  to  the  payment  of  the  debt,  the  judgment 
is  not  conclusive,  and  the  creditor  must  show  a 
deficiency  of  assets. 

4.  EXECtJTORS   AND   ADMINISTBATOBS    ^=»22^ 

Presentation  of  Claims— Effect. 
Under  Code  Pub.  Civ.  Lows,  art  16,  f  218, 
providing  that  if  a  decedent  leaves  real  estate, 
but  does  not  leave  personal  estate  sufficient  to 
pay  his  debts  and  costs  of  administration,  a 
court  of  eauity  may  decree  a  sale  of  so  much 
of  the  realty  as  may  be  necessary  to  pay  his 
debts,  and  section  219,  providing  that  the  cer- 
tificate of  the  register  of  wills  to  the  proof  of 
such  claims  or  distribution  shall  be  prima  fade 
evidence  of  the  claims,  and  sufficient  to  entitle 
them  to  distribution  out  of  the  proceeds  of  the 
real  estate,  unless  excepted  to  by  some  interest- 
ed person,  a  judgment  creditor  of  a  decedent, 
by  filing  a  copy  of  bis  decree  agsinst  the  ex- 
ecutor in  the  orphans'  court,  was  not  estopped 
from  filing  his  petition  in  a  suit  to  foreclose  a 
mortgage  on  the  decedent's  land  for  the  payment 
of  his  debt  from  the  surplus. 
6.   MOBTOAGES    «=»568  —  POEECLOBUBB  —  SXTB- 

PLUS— Distbibotion— Pabtibs. 
Where  a  judgment  creditor  of  a  deceased 
mortgagor  files  his  petition  in  a  suit  to  fore- 
close the  mortgage  for  payment  of  his  judgment 
from  the  surplus,  the  mortgagor's  personal  rep- 
resentative should  be  made  a  party,  unless  it 
clearly  appears  that  there  was  no  personalty, 
or  that  there  was  so  little  .is  not  to  justify  ad- 
ministration, or  that  there  was  some  other  valid 
reason  for  not  requiring  it 

6.  Equitt  ®=>219—DE»njBBER— Defects  Not 
Apfabent  on  Face  of  Biu<. 

Where  the  judgment  creditor's  petition  for 
payment  of  his  debt  from  the  surplus  asked  for 
a  subpoena  against  the  mortgagor's  executor,  an 
objection  to  proceeding  further  until  the  execu- 
tor was  regularly  brought  into  court  could  not 
be  taken  by  demurrer,  as  the  petition  did  not 
disclose  any  defect  in  this  respect 

7.  Mobtoages  *=>568  —  Foeeclosube  —  Sub- 
plus— Distbibution—Pabties. 

Where  the  trustee  under  the  mortgage  was 
also  the  mortgagor's  executor,  and  was  in  court 
in  his  individual  capacity  and  as  trustee,  his 
failure  to  appear  as  executor,  though  not  for- 
mally summoned,  could  not  delay  or  affect  the 
proceedings,  since,  if  there  was  anything  for  the 
executor  to  do,  it  was  his  duty  to  appear. 

8.  Appbabance  «=924(1)— Effect— Waitkb  or 
Defects  in  Pbocesb. 

Where  interested  persons  appeared  and  de- 
murred to  the  judgment  creditor's  petition,  they 
made  themselves  parties,  even  though  there  was 
some  defect  in  the  prayer  of  the  petition,  or  in 
the  proceedings  seeking  to  have  them  brought  be- 
fore the  court 

9.  Wills  «s>7— Lapsed  Leoaciss— Poweb  to 
Bequeath  ob  Devise. 

Under  Code  Pub.  Civ.  Laws,  art  93,  S  326, 
providing  that  a  devise  or  bequest  to  one  dying 
before  ue  testator  shall  not  lapse,  but  shall 
have  the  same  effect  to  transfer  the  right,  es- 
tate, and  interest  mentioned  in  the  devise  or  be- 
quest as  if  such  devisee  or  legatee  had  sur- 
vived the  testator,  a  legatee  dying  before  the 
testator  cannot  bequeath  what  he  would  have 
received  under  the  testator's  will,  it  he  had  sur- 
vived him. 


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McLAUaHLIN  V.  McG£E 


683 


10.  WtU;B      9=>552($  —  liAPSKD      LBOACIKa  — 
PEItSORB  TaKINO. 

Under  Code  Pub.  Civ.  Laws,  art.  G3,  t  326, 
a  legacy  to  one  dying  before  testator  does  not 
pass  as  assets  to  the  legatee's  executor  or  ad- 
ministrator, but  goes  directly  to  his  heirs  or 
next  of  kin, 

11.  MOBTOAOBS      «=>.'568— FORZCLOSUEE— Stm- 
FLUB — DlBTMBCTION— PABTIEfl. 

On  a  judgment  creditor's  petition  for  pay- 
ment of  his  judgment  from  the  surplus  on  fore- 
closure of  a  mortgage,  it  was  not  necessary  to 
make  the  administrator  c.  t.  a.  of  a  deceased 
son  of  a  deceased  mortgagor  a  party ,_  where  the 
son  died  before  the  mortgagor,  as  hia  adminis- 
trator had  no  interest  in  the  fund. 

Appeal  from  Circuit  Court  of  Baltimore 
City;    H.  Arthur  Stump,  Judge. 

From  decrees  sustaining  demurrers  and 
dismissing  the  petition  of  "William  D.  Mc- 
liaughlln  against  Lawrence  J.  McGee  and 
others  for  the  paym«it  of  an  indebtedness 
due  liim  from  tbe  surplus,  McLaughlin  ap- 
peals.   Reversed  and  remanded. 

Argued  before  BOYD,  a  J.,  and  BRIS- 
COE, BURKJ;  THO.MAS,  PATaiSON,  UR- 
NEBt  and  CONSTABLli^  JJ. 

J.  Morfit  Mullen,  of  Baltimore,  for  appel- 
lant. J.  Royall  Tippett  of  Baltimore  (Wil- 
liam Golton,  of  Baltimore,  on  the  brief),  for 
appelleea 

BOID,  0.  J.  This  is  an  appeal  from  three 
decrees  of  the  lower  court  sustaining  demurs 
rers  to  and  dismissing  the  petition  of  Wil- 
liam D.  McLaughlin,  seeking  to  have  an  in- 
debtedness due  by  Bridget  McGee  to  him 
paid  out  of  a  surplus  remaining  in  the  hands 
of  a  trustee  who,  under  a  decree  appointing 
bim  to  sell  certain  real  and  leasehold  prop- 
erties which  were  included  In  a  mortgage 
given  by  Bridget  McGee  to  Lawrence  J.  Mc- 
Gee, trustee,  sold  them  and  the  sales  were 
dnly  ratified.  The  decree  of  sale  was  passed 
under  the  Public  Local  Laws  of  Baltimore 
City,  and  J.  Royall  Tlroett  was  appointed 
trustee  to  make  the  sales.  He  reported  sales 
of  two  leasehold  properties  included  In  the 
mortgage,  amounting  to  $775,  and  of  four 
properties  in  fee  simple,  the  proceeds  of 
wblcb  amounted  to  $5,850— the  total  being 
$6,626.  The  sales  were  excepted  to  by  Mary 
B.  (yH&re,  a  daughter  of  Bridget  McGee, 
who  bad  died  in  1913,  but  the  exceptions 
-were  dismissed  and  the  sales  ratified  on 
October  20,  1916. 

The  petition  of  tbe  appellant  alleges  tbflt 
he  loaned  Bridget  McGee  $4,000  upon  a  mort- 
gage, and  on  foreclosure  of  it  there  was  a 
deficit  of  $1,408.77.  Lawrence  J.  McGee,  ex- 
ecutor of  Bridget  McGee,  was  duly  sum- 
moned, and  on  March  29,  1915,  a  decree  in 
personam  was  entered  against  said  executor 
for  said  sum,  as  authorized  by  section  731a 
of  article  4  of  Public  Local  Laws.  The  ap- 
I>ellant  filed  his  claim  in  the  orphans'  court 
of  Baltimore  City,  where  It  was  duly  passed ; 
but  he  alleges  in  his  petition  that  Bridget 


McGee  bad  no  estate,  real  or  personal,  at 
the  time  of  her  death,  other  than  that  in- 
cluded In  tbe  two  mortgages,  and  that  sbe 
did  not  have  personal  estate  sufilclent  to  pay 
her  debts  and  the  costs  of  administration. 
She  made  a  will  by  which  she  left  $700  to 
her  daughter,  Mary  Ellen  CHare,  and  the 
residue  of  her  estate  to  her  two  sons.  Rev. 
Joseph  Francis  McGee  and  Lawrence  John 
McGee.  The  latter  she  also  appointed  her 
executor.  The  will  was  admitted  to  probate 
on  the  15th  of  April,  1915,  and  letters  tes- 
tamentary were  Issued  to' Lawrence  J.  Mc- 
Gee the  same  day.  Mary  E.  O'Hare  filed  a 
caveat  to  the  will  on  the  17th  of  April,  1915, 
ond  Lawrence  J.  McGee,  executor,  filed  an 
answer  to  It  on  April  30th,  and  since  that 
time  nothing  has  been  done  In  relation  to 
tbe  caveat 

Demurrers  were  filed  to  the  petition  of  tbe 
appellant  by  Lawrence  J.  McGee,  individual- 
ly and  as  trustee,  by  J.  Royall  Tippett,  trus- 
tee, and  by  Mary  Ellen  O'Hare,  on  the 
grounds:  (1)  That  the  petition  did  not  state 
a  cause  of  action  which  gave  the  court  Ju- 
risdiction ;  (2)  because  of  the  lack  of  neces- 
sary parties;  (3)  because  tbe  court  was 
without  jurisdiction  In  the  premises ;  (4)  be- 
cause the  Jurisdiction  of  tbe  matters  and 
things  alleged  In  the  petition  is  exclusively 
within  that  of  the  orphans'  court,  and  not 
within  the  circuit  court  of  Baltimore  City; 
"and  (5)  for  other  reasons  to  be  made  known 
at  the  bearing.  No  opinion  was  filed,  and 
hence  we  are  not  informed  as  to  the  reasons 
for  the  action  of  the  lower  court. 

[1]  In  the  brief  of  the  appellees  It  is  con- 
tended that  as  two  of  the  properties  were 
leasehold  the  Jurisdiction  of  the  orphans' 
court  over  them  was  exclusive,  and  as  the 
other  properties  described  In  the  mortgage 
and  reported  sold,  after  the  payment  of  the 
mortgage  debt  and  expenses,  would  leave  in 
the  hands  of  the  trustee  less  than  $2,500,  the 
orphans'  court,  under  article  93,  section  293, 
of  the  Code,  bad  concurrent  Jurisdiction  with 
courts  of  equity,  and  its  JurisdictldD  should 
not  be  disturbed.  But  the  language  of  that 
statute  does  not  Justify  tbe  contention  made. 
In  tbe  first  place,  it  only  applies  to  the  real 
estate  of  Intestates,  and  hence  is  not  ap- 
plicable to  this  case;  but  beyond  that  tbe 
object  of  the  statute  Is  manifest  It  was 
intended  to  give  tbe  orphans'  courts  Jurisdic- 
tion of  tbe  real  estate  of  Intestates  to  tbe 
amount  of  $2,500,  but  not  to  confer  general 
equity  powers  on  tbem  beyond  what  was  nec- 
essary for  the  sales  specifically  authorized. 
In  order  to  give  orphans'  courts  Jurisdiction 
in  tbe  cases  referred  to  In  that  section,  the 
real  estate  must  be  appraised,  and  in  section 
295  provision  is  made  for  the  appointment 
of  the  appraisers.  The  statute  does  not  give 
them  Jurisdiction  in  a  proceeding  such  as 
this,  and  the  fact  that  tbe  surplus  is  less 
than  $2,500  can  make  no  possible  difference. 


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[2]  Thai  the  mere  fact  that  $775  of  the 
proceeUs  of  sales  were  from  leasehold  prop- 
erties could  not  afTect  the  Jurisdiction  of  the 
circuit  court,  which  already  had  Jurisdiction 
oyer  the  fund  in  the  hands  of  the  trustee. 
The  petition  alleges  that  there  is  not  enough 
personal  property  to  pay  the  debts  and  costs 
of  administration — Indeed,  It  alleges  that 
Mrs.  Mc(xee  had  no  estate,  real  or  personal, 
other  than  the  property  covered  by  the  two 
mortgages.  If  the  whole  of  the  ?775  was 
applied,  it  would  not  be  much  more  than  half 
of  the  petitioner's  claim.  There  could  be  no 
valid  reason  for  subjecting  the  fund,  or  such 
part  of  it  as  might  be  held  to  be  personalty, 
to  the  commissions  of  the  executor  and  other 
expenses  of  administration,  and  there  is  no 
statute  or  decision  in  this  state  which  re- 
quires that  to  be  done  in  a  case  of  this  iiind. 
The  circuit  court  had  jurisdiction  over  the 
proceedings  to  foreclose  the  mortgage,  and 
it  must  not  only  make  distribution  to  the 
mortgage  debt  and  expenses,  but  It  must  see 
that  the  excess  is  properly  disposed  of.  If, 
then,  a  creditor  goes  into  court,  and  makes 
such  allegations  as  are  necessary  to  suiitaln 
a  creditors'  bill,  and  sustains  them  by  the 
necessary  proof,  there  could  be  no  reason 
for  sending  blm  to  the  orphans'  court,  es- 
I>eclally  if  there  are  no  funds  there. 

[3, 4]  There  is  no  ground  for  contending, 
as  the  appellees  do,  that,  because  the  appel- 
lant filed  a  copy  of  his  decree  against  the  ex- 
ecutor of  the  estate  of  Bridget  McGee  in  the 
orphans'  court,  be  is  estopped  from  there- 
after going  into  a  court  of  equity.  It  may 
be  well  to  say  in  passing  that,  although  ab- 
solute Judgments  at  law  obtained  by  a  cred- 
itor of  a  deceased .  person  against  hia  ex- 
ecutor or  administrator  generally  amount  to 
an  admission  of  assets,  and  could  not,  prior 
to  chapter  14  of  Acts  of  1916,  be  resisted 
by  him  on  the  ground  of  a  deficiency  of  as- 
sets, yet  as  between  the  creditors  and  the 
heirs  at  law,  in  a  proceeding  to  subject  the 
real  estate  to  the  payment  of  his  debt,  such 
a  judgment  was  not  conclusive,  and  a  cred- 
itor must  show  a  deficiency  of  assets.  Gal- 
ther  V.  Welch,  3  Gill  &  J.  259;  Boteler  ▼. 
BeaU,  7  GUI  &  3.  389,  397.  Creditors  of  de- 
ceased persons  have  the  right  to  have  their 
claims  passed  in  the  orphans'  court,  but  that 
does  not  prevent  them  from  proceeding  In  a 
court  of  equity,  by  way  of  a  creditors*  bill 
In  case  of  an  Insufficiency  of  assets.  Section 
218  of  article  16  in  terms  provides  that  if  a 
{wrson  leaves  real  estate,  but  does  not  leave 
personal  estate  sufficient  to  pay  his  debts 
and  costs  of  administration,  a  court  of  equity 
may  decree  a  sale  of  so  mudi  thereof  as  may 
be  necessary  to  pay  Us  debts.  Moreover, 
section  219  of  that  article  expressly  provides 
that  the  certificate  of  the  register  of  wills 
to  the  proof  of  such  claims  or  distribution 
thereto  in  the  orphans'  court  shall  be  prima 
facie  evidence  of  the  claims,  and  sufficient  to 
entitle  them  to  distribution  out  of  the  pro- 


ceeds of  the  real  estate  of  the  deceased  debt- 
or, unless  excepted  to  by  some  person  inter- 
ested in  the  estate.  There  Is,  therefore,  not 
only  no  estoppel,  but  the  statute  expressly 
provides  for  filing  the  certificate  of  the  regis- 
ter of  wills,  which  is  made  prima  facie  evi- 
dence. 

The  case  of  MacglU  v.  Hyatt,  80  Md.  2S3, 
30  Atl.  710,  relied  on  by  the  appellees,  was 
a  wholly  different  case.  There  the  bill  al- 
leged that  the  debtor  had  real  and  personal 
estate  of  great  value,  and  it  did  not  allege 
that  the  personal  estate  was  insufficient  to 
pay  the  debts.  It  was  said  by  the  court  tliat 
it  was  not  shown  that  sufficient  personal 
property  to  pay  all  the  debts  had  not  come 
into  the  hands  of  the  executor,  and,  if  it  hail, 
the  remedy  of  the  creditor  was  asninst  tlie 
executor's  bond.  Nor  does  the  case  of  Wrl?ht 
V.  Williams.  93  Md.  66.  48  Atl.  397,  also  re- 
lied on  by  the  appellees,  in  any  way  prevent 
the  appellant  from  coming  into  a  court  of 
equity.  Of  course,  when  two  courts  have 
concurrent  Jurisdiction,  the  one  first  takln; 
Jurisdiction  retains  it,  but  there  are  no  such 
conditions  here. 

We  did  not  suppose,  until  we  heard  this 
case,  that  the  right  of  a  creditor  to  proceed 
against  a  surplus  In  the  hands  of  a  trustee. 
In  a  mortgage  foreclosure  proceeding,  would 
now  be  questioned  in  this  state,  if  the  neces- 
sary allegations  are  made,  and  the  necessary 
parties  are  before  the  court  The  question  Is 
so  thoroughly  settled  that  we  will  only  re- 
fer to  some  of  the  authorities,  without  deem- 
ing it  necessary  to  quote  from  tbem.  MIN 
ler's  Equity  Proc.  458,  S  377;  Penwlck  v. 
Laughlin,  1  Bland,  474;  Galther  et  al.  v. 
Welch,  3  GUI  &  3. 259, 263;  Griffith  v.  Parks,  32 
Md.  1,  and  many  other  cases,  might  be  cited. 
In  Griffith  v.  Parks,  Judge  Alvey,  on  page  5 
of  32  Md.,  in  showing  that  it  was  not  neces- 
sary to  proceed  by  original  bill,  but  that  a 
petition  was  sufficient  in  the  case  before  him, 
relied  on  the  practice  in  cases  of  this  kind,  as 
established  by  Fenwick  v.  Laughlin,  and 
Galther  v.  Welch. 

[S  ]  It  is  also  objected  that  there  is  a  lack  of 
necessary  parties — ^the  appellees  claiming  that 
the  executor  of  Mrs.  McGee  was  not  made  a 
party.  The  petition  expressly  prayed  for  a 
writ  of  subpoena  against  him  and  that  the 
parties  to  the  case  be  required  to  show  cause 
why  the  relief  sought  should  not  be  granted. 
There  seems  to  be  some  confusion  as  to 
whether  the  personal  representative  shonld 
be  made  a  party  in  such  a  proceeding  as 
this,  but  in  David  v.  Grahame,  2  Har.  &  6. 
94,  Tyler  v.  Bowie,  4  Har.  dc  J.  333,  and  Bal- 
timore v.  Chase,  2  Gill  &  3.  on  page  381,  oar 
predecessors  held  that  in  a  proceeding  for 
the  sale  of  real  estate  of  a  person  dying 
without  leaving  personal  property  sufficient 
to  pay  his  debts  it  was  necessary  to  make 
the  executor  or  administrator  a  party.  There 
were  original  bills  in  tliose  cases  to  sell  the 
real  estate,  under  what  is  now  section  21S  of 


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Md.) 


Mclaughlin  v.  mcqee 


6S5 


article  16  of  the  Code,  but  the  reasoning  of 
Chief  Judge  Buchanan  In  David  v.  Grahame 
would  apply  with  equal  force  to  a  proceed- 
ing by  petition  of  this  kind.  In  MacglU  v. 
Hyatt,  on  page  259  of  80  Md.,  on  page  712 
of  30  Atl.,  where  one  ground  of  the  deci- 
sion was  that  the  failure  to  make  the  person- 
al representative  a  party  to  the  bill  made 
it  demurrable,  It  was  said  that  "It  Is  con- 
ceded this  is  generally  so  where,  aa  here,  a 
creditors'  bill  Is  filed  for  the  sale  of  a  deceas- 
ed debtor's  real  and  personal  estate,"  and 
Judge  Fowler  distinguished  Hammond  v. 
Hammond,  2  Bland,  347,  saying  that  In  that 
case  It  appeared  that  the  debtor  left  no  per- 
sonal property  whatever,  or  so  little  that  no 
one  bad  taken  out  letters  of  administration, 
and  the  court  declined  to  sanction  the  rule 
of  practice  sought  to  be  established  by  Tes- 
sier  T.  Wyse,  3  Bland,  S7.  It  was  held  in 
MacglU  V.  Hyatt  that  the  personal  repre- 
sentative was  a  proper  party;  but,  as  we 
bave  seen,  personalty  as  well  as  real  estate 
was  involved  there. 

In  Jones  t.  Jones,  1  Bland,  443,  18  Am. 
Dec  327,  cited  by  the  appellees,  the  fund  was 
in  the  sheriff's  hands  arising  from  an  execu- 
tion sale  of  real  estate;  but  It  was  held  to 
have  been  converted  into  personalty,  and 
hence  the  administrator  was  a  necessary 
party,  which  differs  from  a  sale  of  real  es- 
tate under  a  mortgage,  as  decided  in  Fenwick 
V.  Laughlln,  where  the  surplus  was  held  to 
foe  real  estate,  and  that  case  has  since  been 
followed.  In  this  case,  where  some  leasehold 
and  some  real  estate  were  sold,  there  were 
both  personalty  and  realty  in  the  surplus, 
and  hence  it  would  seem  to  come  within  Mac- 
glU y.  Hyatt.  But,  independent  of  that,  we 
think  the  correct  practice  requires  the  per- 
sonal representative  to  be  made  a  party,  un- 
less it  clearly  appears  that  there  was  no  per- 
sonalty, or  there  was  so  Uttle  as  not  to  Justi- 
fy taking  out  letters  of  administration,  or 
there  was  some  such  valid  reason  tor  not  re- 
quiring it. 

Applying  the  rule,  then,  to  this  case,  what 
is  the  result?  Lawrence  J.  McGee  is  the 
executor  of  the  will,  and  the  demurrer  filed 
by  him  begins,  "lyawrence  J.  McGee,  indi- 
vidually, and  Lawrence  J.  McGee,  trustee,  de- 
murs to  the  amended  petition,"  etc.  It  is 
signed,  "J.  RoyaU  Tlppett,  Attorney  for  Law- 
rence J.  McGee,  Individually,  and  Lawrence 
J.  McGee,  Blxecutor."  While  it  is  irregularly 
drawn,  It  may  well  be  presumed  that  the  de- 
murrer was  intended  to  have  been  filed  by  him 
as  executor,  as  his  attorney  so  signed  it,  and 
as  trustee  he  has  no  interest  in  the  surplus. 
The  only  possible  Interest  he  could  have  in 
that  capacity  would  be  to  see  that  his  mort- 
gage was  allowed  in  full;  but  his  right  to 
have  that  done  was  not  questioned,  and  the 
petition  only  seeks  to  affect  the  surplus  after 
tbe  mortgage  is  paid. 

[S-i]  As  the  question  of  the  correct  prac- 
tice was  raised,  we  have  perhaps  gone  more 


at  length  into  that  than  the  exigencies  of 
this  case  demanded.  We  are  simply  passing 
on  demurrers,  and,  as  we  have  seen,  the  peti- 
tion expressly  asks  for  a  subpoena  against 
Lawrence  J.  McGee,  as  executor.  How,  then, 
can  the  demurrers  reach  the  question?  There 
Is  nothing  In  the  petition  to  show  that  Law- 
rence J.  McGee,  executor,  was  not  made  a 
party — on  the  contrary,  it  shows  that  he  was. 
If  he  was  not  summoned  as  such,  or  did  net 
voluntarily:  appear,  if  objection  to  the  peti- 
tioner's proceeding  further  untU  the  executor 
is  regularly  brought  into  court  is  desired  to 
be  made,  it  would  bave  to  be  done  In  some 
way  other  than  by  demurrer  to  tbe  petition, 
as  that  does  not  disclose  any  defect  in  that 
respect.  But,  to  avoid  any  misapprehension 
of  our  position  on  the  subject,  we  will  add 
that,  as  this  executor  Is  undoubtedly  in  court 
in  his  individual  capacity  and  also  as  trus- 
tee, his  faUure  to  aK>ear  as  executor,  even 
if  he  has  not  been  formally  summoned  as 
such,  cannot  delay  or  affect  the  proceedings. 
If  there  Is  anything  for  the  executor  to  do, 
especially  as  to  whether  the  personal  estate 
is  sufficient  to  pay  the  debts  of  the  deceased, 
it  Is  his  duty  to  appear.  If  he  has  not  already 
done  so,  as  he  has  knowledge  of  the  proceed. 
Ings.  He,  J.  Royall  Tlppett,  trustee,  and 
Mary  Ellen  O'Hare,  bave  all  appeared  and 
demurred,  and  they  have  made  themselves 
parties,  even  if  there  was  any  defect  in  the 
prayer  of  the  petition  or  the  proceedings 
seeking  to  have  them  brought  before  tbe 
court. 

It  is  also  objected  that  the  personal  rep- 
resentative of  Rev.  Joseph  Francis  McGee 
was  not  made  a  party;  but,  if  the  petition 
correctly  states  the  facts,  as  we  must  as- 
sume. In  considering  the  demurrers.  It  does, 
he  died  before  his  mother.  If  bis  mother's 
will  should  be  set  aside,  in  the  caveat  pro- 
ceeding, then  he  did  not  Inherit  anything, 
and,  if  the  will  is  sustained,  the  devise  and 
bequest  to  him  do  not  lapse,  but  under  section 
326  of  article  93  they  "shall  have  the  same 
effect  and  (deration  In  law  to  transfer  the 
right,  estate  and  interest  In  the  property 
mentioned  in  such  devise  or  bequest,  as  it 
such  devisee  or  legatee  had  survived  the  tes- 
tator." 

[9]  In  the  leading  case  of  Glenn  v.  Belt, 
7  GUI  &  J.  362,  that  provision  was  construed, 
and  questions  were  settled  then  that  have 
since  been  recognized  as  the  established  law 
of  this  state.  It  was  distinctly  held  that  the 
power  of  devising  was  not  enlarged  or  affect- 
ed by  that  statute — that  a  legatee  who  died 
before  the  testator  could  not  bequeath  what 
he  would  have  received  under  the  testator's 
will,  if  he  had  survived  him.  The  reason  for 
that  Is  that  a  testator  cannot  devise  or  be- 
queath What  he  has  no  interest  in  at  the 
time  of  his  death,  when  his  will  takes  effect. 
Judge  Archer  began  his  opinion  in  that  case 
by  saying: 

"Madam  Volnmbrum's  will  could  only  operate 
to  pass  that  which  by  law  was  the  subject  of 


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686 


101  ATLANTIC  REPORTER 


CMd. 


a  deriae  or  bejiuest.  The  expectancy  of  a  ben- 
efit to  be  derived  from  the  will  of  Clery  was 
bat  a  naked  poesibilitr,  and  could  not,  under 
any  authority  cited,  be  the  aubject  of  a  testa- 
ment. Indeed,  it  haa  been  conceded  that  suc^h 
la  the  law,  unless  some  alteration  has  been 
effected  in  it,  by  Acta  1810,  c  34." 

That  act  Is  the  original  one  upon  which 
section  326  Is  founded.  Madam  Yolumbrum 
was  a  legatee  under  Mr.  Clary's  will,  and 
she  died  befbre  he  did.  The  court  In  effect 
said  that  she  had  nothing  to  will,  when  she 
died,  as  coming  through  Clery's  will. 

[10]  The  next  question  then  was.  Who  took 
the  legacy  which  was  saved  from  lapsing  by 
the  act?  It  was  held  that  it  went  directly 
to  those  who  would  have  been  entitled  to  It, 
If  the  legatee  bad  survived  the  testator — 
that  it  did  not  pass  as  assets  to  the  execu- 
tor or  administrator  of  the  deceased  lega- 
tee, but  the  transfer  was  to  persons  in  esse, 
entitled  to  the  distribution  of  the  legatee's 
estate.  It  is  not  liable  for  the  legatee's  debts, 
and  goes  directly  to  the  next  of  Icln,  and 
not  through  the  medium  of  an  executor  or 
administrator  of  a  deceased  legatee,  if  per- 
sonalty, and,  If  it  is  real  estate,  it  goes  dl- 
rectly  to  the  heirs  of  the  devisee,  subject  to 
the  dower  of  a  husband  or  wife,  as  decided 
in  Vogel  V.  Tumt,  110  Md.  192,  72  Atl.  661. 
See,  also,  Wallace  v.  Du  Bols,  66  Md.  163,  4 
Atl.  402 ;  Halsey  v.  Convention  of  Prot  Epls. 
Ch„  75  Md.  275,  23  Atl.  781;  Garrison  v. 
Hill,  81  Md.  200,  31  Atl.  794. 

[11]  So,  although  the  petition  refers  to  the 
will  of  Rev.  Jos.  F.  McOee  as  he  died  before 
his  mother,  he  could  not  have  devised  or  be- 
queathed any  property  left  In  her  will  to 
him,  but  It  went  to  his  heirs  or  next  of  kin, 
as  the  case  may  be.  If  his  will  had  taken 
effect  on  the  property  sold  under  the  mort- 
gage, which  sales  produced  the  surplus  in 
controversy,  then  the  proceeding  would  have 
been  defective  for  not  filing  a  copy  of  his 
will;  but,  as  he  received  nothing  under  the 
will  of  his  mother  which  he  could  will.  It 
was  not  necessary  to  file  his  will,  and  as  his 
administrator  c.  t  a.  does  not  take  any  of 
this  fund,  and  has  no  interest  in  any  of  the 
properties,  as  far  as  appears  In  the  record, 
there  is  no  necessity  for  making  his  adminis- 
trator c.  t  a.  a  party.  There  Is  nothing  to 
show  that  any  one  but  Mrs.  O'Hare  and  Law- 
rence J.  McGee  have  any  interest  in  what 
would  have  gone  to  the  Rev.  Jos.  F.  McGee, 
if  he  had  survived  his  mother,  and,  as  they 
are  parties,  are  actually  In  court  demurring 
to  the  petition,  there  is  nothing  In  the  peti- 
tion to  show  a  lack  of  necessary  parties.  If 
any  other  person  has  an  Interest,  that  can 
be  shown  in  the  answer;  but  the  petition 
does  not  disclose  such  Interest,  and  hence  It  Is 
not  demurrable  on  that  account. 

The  demurrers  should  have  been  overruled, 
and  the  parties  required  to  answer.  It  fol- 
lows that  the  decrees  sustaining  the  demur- 


rers and  dismissing  the  petition  must  be  re- 
versed. 

Decrees  reversed,  and  case  remanded  fot 
further  proceedings;  the  costs  In  this  court 
to  be  paid  by  the  appellees,  and  those  below  to 
abide  the  final  result 

(131  Md.  176) 

OWEN  et  aL,  County  Com'rs,  t.  WILMER 

(No.  88.) 
(Court  of  Appeals  of  Maryland.    June  27, 1917.) 

1.  Appeai.  and  Ebrob  9=932— Jcdgments  Ap- 
peai.abi.e--jddoment  on  appeai.  fbok  jus- 
TICE OF  THE  Peace. 

No  appeal  lies  to  the  Court  of  Appeals  from 
a  judgment  recovered  on  an  appeal  from  a  jus- 
tice of  the  peace,  if  the  justice  renderine  the 
judgment  and  the  circuit  court  affirming  it  had 
juriadiction. 

2.  Justices  of  the  Peace  «=»57(1)— DisquaIt 
iFicATioN— Constitutional  Provisions. 

Const,  art.  4,  §  7,  providing  that  no  judge 
shall  sit  in  any  case  wherein  he  may  be  inter- 
ested, or  where  either  of  the  partiea  may  be  con- 
nected with  him  by  affinity  or  consanguinity 
within  prescribed  degrees,  or  where  he  shall  have 
been  of  counsel  in  the  case,  refers  only  to  judges 
of  courts  of  record  or  courts  of  law,  and  not  to 
a  Justice  of  the  peace,  who  is  not  considered  a 
court  of  law  or  of  record. 

3.  Justices  of  thb  Peace  «s»57(1)— Disqual- 
ification— Intekest  as  Stockholder. 

There  being  no  constitutional  or  statutory 
provision  disqualifying  a  justice  of  the  peace 
from  entertaining  an  action  by  a  corporation 
in  which  he  is  a  atockholder,  no  such  diaquali- 
fication  exists. 

4.  District  and  Pbosecutinq  Attorneys  «=» 
3(5)— Assistants— Oompenbation— Author- 
ity of  Court. 

Under  Code  Pub.  Civ.  Laws,  art  26,  {  7. 
authorizing  circuit  courts  to  appoint  assistant 
counsel  for  the  state  to  aid  in  tne  trial  of  crim- 
inal or  other  state  cases  when  the  public  inter- 
est requires  it,  and  section  8,  providing  that 
county  commissioners  shall  levjr  and  pay  fur 
the  services  so  rendered,  providing  that  the 
amount  shall  not  exceed  $100,  the  circuit  court 
has  authority  to  fix  and  define  the  compensation 
nf  counsel  so  appointed  within  the  statutory  lim- 
its. 

5.  Judges  4=»49(Z)  —  DisQUAUFicATian  — 
Prior  Decision  bt  Judge. 

Judges  of  a  circuit  court,  appointing  assist- 
ant counsel  for  the  state  in  a  criminal  proceed- 
ing and  certifying  to  the  county  commissioners 
that  the  fee  claimed  Imt  such  counsel  is  reasona- 
ble and  should  be  paid,  are  not  thereby  disquali- 
fied, under  Const  art  4,  {  7,  to  hear  an  appeal 
from  a  justice  of  the  peace  in  an  action  asainst 
the  county  commissioners  for  the  fee  so  allow- 
ed, as  the  interest  which  disqualifies  under  the 
constitutional  provision  mentioned  is  an  inter- 
est whereby  the  judge  will  gain  or  lose  some- 
thing the  value  of  which  may  be  estimated,  and 
a  judge  is  not  disqualified  merely  because  he 
has  expressed  his  opinion  aa  to  the  case. 

6.  Justices  of  the  Peace  $=9l67(2)— Appeai, 
—Change  of  Venue. 

The  constitutional  provision  pertaining  to 
the  removal  of  causes  gives  circuit  courts  no 
power  to  remove  causes  pending  before  them  on 
appeal  from  a  justice  of  the  peace. 

Appeal  from  Circuit  Court,  Charles  Coun- 
ty; John  P.  Briscoe,  B.  Harris  Camalier, 
and   Fillmore  Beall,  Judges. 

Action  by  L.  Allison  Wllmer,  to  the  use  of 


4=9For  other  cases  see  same  to^lc  and  KEY-NUMBER  In  all  Key-Numbered  Digests  aad  lodexea 

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iifd.) 


OWEN  V.  WILMBB 


687 


tbe  Eastern  Sbore  Trust  Company,  against 
John  W.  Owen  and  others,  Ck>unty  Commis- 
sioners for  Charles  County.  Judgment  for 
plalntlfF,  and  defendants  appeal.  Appeal  dis- 
missed. 

Argued  before  BOYD,  C.  J.,  and  BURKE, 
THOJIAS,  PATnSON,  URNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Adrian  Posey  and  F.  Stone  Posey,  both  of- 
La  Plata,  for  appellants.  L.  A.  Wilmer,  of 
Leonardtown,  and  W.  Mitchell  Digges,  of 
La  Plata,  for  appellee. 

CONSTABLE,  J.  [1]  This  appeal  was 
taken  from  a  Judgment  recovered  upoa  an 
api>eal  to  a  circuit  court,  from  a  judgment 
rendered  by  a  Justice  of  the  peace.  The 
only  question  Inrolved  before  us,  of  course, 
is  a  Jurisdictional  one,  since  it  is  an  abso- 
lately  settled  question  in  this  state,  that  no 
appeal  lies  to  this  court  from  a  Judgment  re- 
covered on  an  appeal  from  a  Justice  of  the 
peace,  if  the  Justice  rendering  the  Judgment, 
and  the  circuit  court  in  afflmiing  it,  bad 
Jurisdiction  of  the  case.  Cole  v.  Ilynes,  46 
Md.  181;  Burrell  v.  Lamm,  67  Md.  580.  11 
Atl.  56.  The  circuit  court  for  Charles  coun- 
ty, acting  under  the  authority  conferred  by 
article  26,  f  7,  appointed  the  legal  i)lain- 
tlff  assistant  counsel  for  tbe  state  in  a  crim- 
inal proceeding.  At  tbe  conclusion  of  tbe 
case  tbe  Judges  certified  to  the  county  com- 
missioners that  the  plaintitt  had  been  so 
appointed  by  them,  and  had  rendered  the 
serrices  for  which  he  claimed  compensation, 
and  further  certified  that  tbe  fee  claimed,  of 
$100,  was  a  reasonable  one,  and  should  be 
paid.  Tbe  plaintift  thereupon  assigned  the 
claim  tO|  the  equitable  plaintlft,  which  upon 
the  connty  commissioners  refusing  to  pay. 
In  full,  brought  suit  for  the  balance  before 
a  justice  of  tbe  peace.  Judgment  was  glren 
for  the  plaintiff,  and  the  defendant  appealed 
to  the  circuit  court 

[2]  Two  pleas  were  filed  by  tbe  appellant, 
seeking  to  raise  tbe  question  of  Jurisdiction ; 
bat  demurrers  Interposed  to  them  were  sus- 
tained by  the  court  1^  the  first  It  was  al- 
leged that  the  Justice  of  the  peace  by  whom 
tbe  Judgment  was  rendered  was  a  stock- 
bolder  of  tbe  appellee  corporation,  and  was 
therefore  disqualified  to  hear  tbe  case.  Tbe 
contention  is  tbat  tbe  disqualification  was 
bronaJit  about  through  the  provision  of  sec- 
tion 7  article  4  of  the  Constitution,  which 
reads  as  follows: 

"No  judge  shall  sit  in  any  'case  wherein  he 
may  be  interested,  or  where  either  of  the  parties 
may  be  connected  with  him  by  affinity  or  consan- 
quinit^  within  such  degrees  as  now  are,  or  may 
hereafter  be  prescribed  by  law,  or  where  he 
shall  have  been  of  counsel  in  the  case." 

We  cannot  accede  to  this  proposition.  Tbe 
dtsquallflcatlon  provided  for  by  tbe  Constitu- 
tion refers  only  to  Judges  of  courts  of  rec- 
ord or  courts  of  law.  The  oflice  of  a  Justice 
of  tbe  peace  has  never  t>een  considered  a 
court  of  law  or  a  court  of  record.  In  Welkel 
y.  Cate,  68  Md.  105,  this  court  said: 


'At  common  law,  justices  of  the  peace  were 
merely  conservators  or  keepers  of  the  peace,  and 
although  tbe  Legislature  in  this  state  bas  con- 
ferred on  them  a  limited  jurisdiction  in  civil 
and  criminal  cases,  the  office  itself  has  never 
been  coosidered  a  court  of  law.  This,  we  think, 
is  apparent  from  Constitution,  art  4,  §  1,  by 
which  it  plainly  appears,  that  a  court  of  law, 
within  the  meaning  of  tbe  Constitution,  is  a 
court  of  record." 

[3]  There  being  no  constitutional  provision 
nor  statute  touching  tbe  disqualttlcation  of  a 
Justice  of  tbe  peace  on  tbe  grounds  here  al- 
leged, it  follows  tbat  the  Justice  In  this  case 
bad  jurisdiction  to  bear  tbe  case. 

[4]  A  very  similar  case,  on  the  facts.  Is 
that  of  Worcester  County  v.  Melvin,  89  Md. 
37.  42  AtL  910.  in  which  Chief  Judge  Mc- 
Sbefry,  In  delivering  the  opinion  of  tbe 
court,  announced,  very  instruotively,  tbe 
meaning  and  effect  of  sections  7  and  8  of  arti- 
cle 26  of  tbe  Code,  taken  in  connection  with 
section  268  of  article  24  of  tbe  Local  Code 
applicable  to  Worcester  county,  by  which 
it  was  provided  that  no  compensation  should 
be  allowed  an  attorney  rendering  services 
under  the  terms  of  sections  7  and  8.  art. 
26,  of  tbe  General  Code,  except  upon  tbe 
order  of  tbe  court  certifying  tbe  nature  of 
the  services  and  tbe  amount  to  be  paid  for 
such  services.  It  was  held  that  this  placed 
upon  tbe  commissioners  tbe  Imperative  duty 
of  levying  for  and  paying  the  amount  so 
certified.  Although  there  is  no  statute  ap- 
plicable to  Charles  county  similar  to  that  in 
force  In  Worcester  county,  forbidding  tbe 
compensation  to  be  paid  unless  tbe  court 
fixes  tbe  amount,  yet  the  reasoning  used  In 
tbe  case  cited  is  equally  pertinent  to  this 
case  as  to  that.    The  court  said : 

"This  legislation  gives  to  the  court  ample  au- 
thority not  only  to  assign  counsel  to  defend  an 
nccusefl,  but  to  fix  and  define,  not  exceeding  a 
designated  moximom  sum,  the  amount  of  com- 
picnsation  to  be  paid  by  the  county  commis- 
sioners for  such  services.  The  General  Assem- 
bly has  seen  Bt  to  repose  in  the  courts  this  au- 
thority. It  is  an  authority  Immediately  connect- 
ed with  the  administration  of  instice  and  could 
not  well  be  lodged  anywhere  else  without  seri- 
ously interfering  with  the  very  object  the  legis- 
lation was  designed  to  accomplish.  If  to  the 
county  comnriEsioners  were  committed  the  power 
to  determine  tbe  amount  of  compensation  to  be 
paid  in  such  cases,  or  if,  as  is  contended  for  in 
this  proceeding,  they  were  clothed  with  a  discre- 
tion to  allow  or  disallow  altogether,  the  sum 
claimed,  it  would  embarrass  the  courts  most 
seriously  In  the  trial  of  criminal  causes,  because 
courts  would  then  be  reluctant,  if  not  wholly  un- 
willing, to  impose  upon  a  member  of  the  bar  the 
labor  and  responsibility  of  defending  an  accus- 
ed, inasmuch  as  there  would  then  be  no  certain- 
ty that  tbe  labor  when  performed,  though  per- 
formed in  obedience  to  tne  court's  instructions, 
would  be  adequately  paid  for,  or  even'  paid  for 
at  all."- 

Although  In  several  of  tbe  counties  there 
Is  no  prohibition  upon  tbe  commissioners, 
like  tbat  in  Worcester  county,  yet  tbe  prac- 
tice prevails  In  many  of  them  of  having  the 
courts  certify  to  the  appointment  services, 
and  amount  to  he  paid,  thus  following  tbe 
interpretation  placed  upon  sections  7  and 
8  of  article  26  by  this  court 


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101  ATIiANTIC  BEPORTBB 


vWd. 


[S]  The  question,  however,  raised  in  the 
present  case  under  the  second  plea,  is  wheth- 
er, under  the  Constitution,  the  action  of 
the  court  in  certifying,  as  above  stated,  re- 
sulted in  their  disqualification  to  sit  in  the 
case.  And  this,  of  course,  must  be  deter- 
mined' upon  whether  their  action  is  to  be 
held  as  bringing  them  within  the  class  em- 
braced within  the  words  "In  any  case  where- 
in he  may  be  Interested."  The  contention 
'.nade  by  the  appellant  is  that  the  dlsquallfl- 
catlon  Is  caused  by  a  sentimental,  as  well 
as  by  a  pecuniary.  Interest;  In  other  words, 
by  pride  of  opinion.  DIsquallflcntlon  by 
O>nstltution8  and  statutes  is  Imposed,  not 
only  through  the  fear  that  Judges  might  act 
dishonestly  or  with  partiality,  but  in  order 
that  courts  might  be  free  from  all  suspicion 
of  partiallly,  and  thus  promote  the  feeling 
that  all  litigants  may  feel  confldent,  as  they 
have  a  right  to  so  feel,  that  their  interests 
are  In  the  hands  of  fearless,  fair,  and  im- 
partial Judges.  In  some  of  the  states  prej- 
udice and  bias  have  been  made,  by  statute, 
the  basis  for  disqualification ;  but  in  those 
Jurisdictions  the  bias  and  prejudice  refer,  not 
to  the  subject-matter  of  the  litigation,  but 
only  to  the  mental  attitude  of  the  Judge 
towards  the  parties.  In  this  case  the  Judges, 
following  their  practice,  merely  expressed 
for  the  guidance  of  the  commissioners  that, 
in  their  opinion,  the  charge  was  reasonable 
and  proper  and  should  be  allowed.  While 
this  was  an  expression  of  their  opinion  on 
both  the  law  and  fact,  yet,  In  our  opinion. 
It  could  not  operate  so  as  to  amount  to  a 
disqualification  because  of  "interest"  to  sit 
In  the  case  that  afterwards  arose. 

^e  Constitution  or  statutes  of  most.  If 
not  all,  of  the  different  states  contain  a  gen- 
eral provision  to  the  effect  that  a  Judge  shall 
not  act  as  such  In  a  cause  In  which  he  Is 
Interested;  but  the  overwhelming  weight  of 
authority  in  construing  the  meaning  that  Is 
to  be  attached  to  the  provision  Is  that,  to 
bring  about  a  disqualification,  the  interest 
must  be  a  pecuniary  or  a  personal  right  or 
privilege  In  some  way  dependent  upon  the 
result  of  the  case,  as  oontradlstlngnlstaed 
from  every  bias,  partiality,  or  prejudice 
which  the  Judge  may  entertain  with  refers 
ence  to  the  case.  Of  course,  the  cardinal 
rule  in  construing  all  written  Instruments, 
where  there  Is  any  doubt  apparent  as  to  the 
meaning  of  the  language  osed.  Is  to  search 
for  the  intention  of  the  makers,  and,  when 
that  Is  discovered,  that  Intention  must  gov- 
ern. Beading  the  language  of  section  7  of 
article  4,  it  is  found  that  It  enumerates 
the  only  Instances  In  which  an  interest,  not 
necessarily  pecuniary,  will  dlaquall^  a 
Judge.  These  are  where  he  has  been  of 
connsd  In  the  case,  or  where  elth'er  of  the 
parties  may  be  connected  with  him  by  affinity 
or  consanguinity  within  a  certain  degree. 
By  naming  those  special  cases  where  the 


Judge's  feelings  may  be  Interested,  thougji 
he  may  not  gain  or  lose  by  the  event  of  the 
suit,  the  law  doubtless  Intended  to  limit 
all  other  cases  of  Interest  to  such  as  should 
be  of  a  pecuniary  nature.  The  Judge  must, 
by  the  Judgment  in  the  case,  gain  or  lose 
something,  the  value  of  which  may  be  esti- 
mated; and  we  cannot  Ingraft  urion  our 
Constitution  that  a  Judge  is  disqunllflpd  be- 
cause he  has  expressed  his  opinion  as  to 
the  case.  Mclnnes  v.  Wallace  (Tex.  Civ. 
App.)  44  S.  W.  537;  King  &  Davidson  v. 
Sapp,  66  Tex.  519,  2  S.  W.  673;  Ex  parte 
State  Bar  Association,  92  Ala.  113,  8  South. 
7eS;  Foreman  v.  Mnrlanna,  43  Ark.  324; 
Sauls  V.  Freeman,  24  Fla.  209,  4  South.  525. 
12  Am.  St.  Rep.  190;  Foreman  v.  Hun- 
ter, 59  Iowa,  550,  13  N.  W.  659;  SJoberg 
V.  Nordin,  26  Minn.  501,  5  N.  W.  677; 
Conklin  v.  Squire,  4  Ohio  Dec.  493;  Ilnn- 
gerford  v.  Cushion,  2  Wis.  397 ;  Inhabitants 
of  Northampton  v.  Smith,  11  Mete.  (Mass.) 
395. 

[8]  The  appellants,  after  the  overnillng  of 
their  demurrers,  filed  a  suggestion  for  the 
removal  of  the  case  to  some  other  court  for 
trial.  It  is  settled  that  the  provisions  of  the 
Constitution  pertaining  to  the  removal  of 
causes  gave  the  circuit  courts  no  power  to 
remove  causes  pending  before  them  «i  ap- 
peal. Hoshall  V.  Hoffacker,  11  Md.  362; 
CV)oke  V.  Cooke,  41  Md.  368;  Geekle  v.  Har- 
bourd,  52  Md.  460.  Being  of  the  opinion, 
therefore,  that  neither  the  Justice  of  the 
peace  nor  the  Judges  were  disqualified  from 
sitting  In  the  case,  It  follows  that  they  had 
Jurisdiction,  and  this  appeal  must  be  dis- 
missed. 

Aiqpieal  dismissed;  the  appellants  to  pay 
the  costs. 

cm  Md.  I82> 
SCDLENS  V.  POB  et  al.     POE  et  al.  v. 
SCniiENS.     VILLAGE  OP  LYONS 
et  al.  V.  SAME.    (Nos.  39-41.) 

(Court  of  Appeals  of  Maryland.    June  27, 1017.) 

1.  Inbusance  «=»679  —  Reinsurance  Con- 
tbact^-conbtbuction. 

The  U.  Co.  and  the  M.  Co.  entered  into  a 
contract  for  a  five-year  period,  whereby  the  if. 
Co.  was  to  participate  in  one-third  of  the  bnd- 
ness  of  the  U.  Co.,  share  one-third  of  the  profits, 
and  bear  one-third  expenses.  The  contract  pro- 
vided for  an  account  to  be  rendered  by  the  U. 
Co.  to  the  M.  Co.  within  two  months  after  the 
end  of  each  year.  The  account  was  to  be  eiam- 
Ined  within  one  month  after  its  receipt,  and  the 
amount  due  from  either  party  paid  immediately. 
There  was  also  a  provision  for  an  account  stat- 
ed at  the  close  of  the  fifth  or  last  year.  B"fi 
that  accounts  as  between  the  companies  conW 
be  stated  upon  an  annual  basis,  which  would  in 
effect  be  final,  and  that  such  accounts  were  not 
bound  to  remain  open  until  the  end  of  the  fire- 
year  period. 

2.  Rbcbivebb  «=>189— Action  bt  BECEiVBft- 
ExPENSSS  or  Litigation. 

The  litigation  between  the  receivers  of  tie 
U.  Co.  and  the  M.  Co.  involved  the  right  of  the 
receivers  to  recover  under  a  contract  for  an  en- 
tire period  of  five  years.     So  far  as  recovery 


AssFor  otlMr  oaaaa  m«  muim  topic  and  KBY-NUUBER  la  all  K«y-Number«d  DIsests  and  leduu 


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SCHLENS  y.  POE 


689 


was  concerned,  it  wu  necessary  to  sustain  tiie 
contract  as  a  whole.  One  S.  wu  assignee  of  all 
rights  under  the  first  two  years  of  the  contract, 
and  was  interested  in  sustaining  the  entire  con- 
tract. Held,  that  the  costs  and  expenses  incur- 
red in  prosecuting  the  litigation  against  the  M, 
Co.  to  sustain  the  entire  contract  should  he 
borne  b;  S.  in  proportion  to  the  amount  of  hia 
recovery. 

Appeals  from  Circuit  Coart  of  Baltimore 
City;    Chas.  W.  Heolsler,  Judge. 

Conaolldated  acrtlons  by  Gustav  A.  Schlena 
against  Edwin  W.  Poe  and  others,  receivers, 
and  by  Edwin  W.  Poe  and  others,  receivers, 
and  the  Village  of  Lyons  and  others,  against 
Gustav  A.  Schlens.  From  a  decree  of  the 
Circuit  Court,  three  appeals  were  taken  here. 
Affirmed  in  part,  and  reversed  In  part,  and 
remanded. 

Argued  before  BOYD,  0.  J.,  and  BRIS- 
COE, BURKB,  THOMAS,  PATTISON,  UR- 
Nim,  and  STOOKBRIDGE,  33. 

Alfred  S.  Niles,  of  Baltimore  (Carlyle  Bar- 
ton and  Chester  F.  Morrow,  both  of  Balti- 
more, and  Morris  Wolf,  of  Philadelphia,  Pa., 
on  the  brief),  for  Schlens.  Edgar  Allan  Poe 
and  J.  Kemp  Bartlett,  both  of  Baltlmoie,  for 
receivers  of  United  Surety  Co.  and  Village  of 
L^ons  and  others. 

STOCEBRIDGE,  J.  The  present  appeal 
brings  to  the  attention  of  tliis  court  for  the 
fifth  time  the  contract  entered  into  some  12 
years  ago  between  the  United  Surety  Com- 
pany of  the  City  of  Baltimore  and  the  Mu- 
nich Insurance  Company.  The  previous  cas- 
es will  be  found  reported,  respectively,  in 
Munich  Reinsurance  Co.  v.  United  Surety 
Co.,  113  Md.  200,  77  AtL  CTft,  Receivers  of 
United  Surety  Co.  v.  Munich  Reinsurance 
Co.,  121  Md.  479,  88  AtL  271,  Poe  v.  Munich 
Reinsurance  Ca,  126  Md.  620,  95  Atl.  164, 
and  Schlens  ▼.  Poe,  128  Md.  362,  97  AtL  649. 
The  main  facts  In  this  litigation  are  folly 
set  out  In  121  Md.  479,  88  Atl.  271,  and  128 
Md.  352,  97  Atl.  649,  and  It  would  serve  no 
useful  purpose  to  repeat  them  again.  It 
should  be  stated  In  limine  that  no  new  ques- 
tion of  law  is  now  presented,  or  one  which 
has  not  already  been  considered  and  passed 
upon.  The  only  questions  upon  wbl«di  any 
argument  Is  possible  arise  out  of  the  report 
of  the  auditor,  made  after  and  for  the  pur- 
pose of  carrying  Into  effect  the  decision  of 
tbis  court  In  128  Md.  362,  97  AtL  649. 

The  real  points  now  attempted  to  be  call- 
ed In  question  are  three  In  number,  and  are 
succinctly  stated  In  the  brief  filed  on  behalf 
of  Mr.  Schlens  as  follows: 

"(1)  What  portion  of  the  amount  received  by 
the  receivers  September  30,  1913,  in  payment  of 
their  daim  against  the  Munich  Reinsurance 
Company,  represented  the  interest  of  Mr.  Schlens 
therein?  (2)  What  amount  of  the  ezjienses  in- 
curred in  recovering  this  amount  is  properly 
chargeable  to  Mr.  Schlens?  (3)  Is  the  Lynch 
item  a  proper  credit  to  be  allowed  the  receiv- 
ers?" 

Upon  the  first  of  these  propositions  there 

Is    no    difficulty    whatever.    The    principles 

101  A.- 


which  guided  the  auditor  in  his  action  were 
those  expressly  announced  by  this  court, 
speaking  through  Judge  Umer,  In  121  Md. 
479,  88  AtL  271.  Much  time  and  effort  was 
given  by  the  counsel  representing  the  receiv- 
ers and  the  Bank  of  Lyons  in  an  endeavor 
to  Induce  this  court  to  alter  or  modify  the 
conclusion  heretofore  reached,  and  on  a  care- 
ful review  of  the  entire  litigation  no  suffi- 
cient reason  appears  for  so  doing. 

[1]  The  theory  upon  which  the  counsel  for 
the  receivers  apparently  proceed  Is  that  no 
account  as  between  the  two  companies  could 
be  stated  upon  an  annual  basis  which  would 
In  effect  be  final,  but  that  such  accounts  were 
bound  to  remain  open  until  the  end  of  the 
entire  five  years  of  the  contract.  The  com- 
plete answer  to  this  is  to  be  found  in  the 
eighth  and  ninth  articles  of  the  contract, 
which  provided  for  the  statement  of  accoimts 
within  two  months  after  the  close  of  eacO 
year  of  the  business  of  the  preceding  year, 
and  the  payment  by  one  company  or  the  oth- 
er of  the  balance  as  shown  to  be  due  by  such 
accounts.  The  account  to  be  stated  at  the 
close  of  the  fifth  or  last  year  would  inevita- 
bly, under  the  provisions  of  the  contract, 
differ  In  certain  respects  from  the  annual 
accounts  of  the  preceding  year,  but  that  was 
provided  for  In  the  agreement,  as  was  dis< 
tinctly  recognized  in  the  decision  In  121  Md. 
479,  88  Aa  271. 

[2]  The  Indebtedness  of  the  Munich  Com- 
pany to  the  United  Surety  Company  for  the 
years  1906  and  1907  was  an  Issue  directly 
involved  and  determined  In  121  Md.  479, 
88  AU.  271,  and  that  Mr.  Schlens,  as  as- 
signee of  the  Interest  of  the  Messrs.  Knabe, 
was  entitled  thereto  for  the  two  years  named, 
was  fully  passed  upon  In  128  Md.  362,  97  AtL 
649.  This  is,  of  course,  subject  to  any  prop- 
er deduction  for  payments  made  for  or  on 
account  of  the  Interest  of  the  Messrs.  Knabe, 
acquired  under  thdr  contract  vrith  the 
United  Surety  Company,  and  also  a  proper 
proportion  of  the  expenses  incurred  In  recov- 
ering the  Indebtedness  of  the  Mimlcb  Cbm- 
pany. 

The  last  requires  the  determination  of 
the  second  question  above  stated.  Two  theo- 
ries have  been  suggested  for  the  ascertain- 
ment of  this  proposition — one,  that  Mr. 
Schlens  should  share  In  the  expenses  In  pro- 
portion to  his  recovery;  the  other,  that  Mr. 
Schlens  should  be  required  to  pay  but  two- 
fifths  of  the  amount  of  those  expenses,  by 
reason  of  the  fact  that  his  interest  related 
only  to  two  years  out  of  the  five  for  which 
the  contract  was  to  run.  Neither  of  these 
will  result  in  exact  justice  to  all  the  parties 
interested,  but  an  approximation  of  It  Is  all 
that  can  be  made. 

The  litigation  between  the  receivers  of  the 
United  Company  and  the  Munich  Company 
Involved  the  right  of  the  receivers  to  recover 
for  an  entire  period  of  five  years.  So  far  as 
the  recovery  was  concerned.  It  was  indivis- 
ible;  that  Is  to  say,  the  contract  could  not 


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101  ATLA^ITIC  REPOBTEB 


Old. 


have  been  sustained  as  to  two  years  and  held 
void  as  to  tbe  other  three  years,  and  while 
Mr.  Schlens  was  entitled  to  a  recovery  only 
for  two  years  of  the  time  of  the  contract, 
he  was  nevertheless  vitally  Interested  in  sus- 
taining the  entire  contract,  as  otherwise 
there  would  have  been  nothing  to  come  to 
him  as  the  result  of  the  litigation.  It  would 
be  inequitable,  therefore,  to  hold  that  Mr, 
Schlens  was  liable  only  for  two-fifths  of  the 
cost  and  expenses  Incurred  In  the  prosecution 
of  the  litigation  against  the  Munich  Com- 
pany. In  the  brief  filed  by  Mr.  Schlens  in 
the  case  reported  in  128  Md.  352,  97  Atl.  649, 
it  was  said  that  he,  through  his  counsel,  was 
willing  to  agree  "to  share  the  expenses  in 
proportion  to  his  recovery."  That  proffer  is 
now  sought  to  be  withdrawn,  and  it  probably 
had  no  binding  or  legal  effect  upon  Mr. 
Schlens.  It  is  also  to  be  noted  that  the  ex- 
pression in  the  prior  case  proposing  the  stutr- 
ing  of  the  expense  is  not  altogether  free  from 
ambiguity. 

What  we  have  to  deal  with  upon  this  ques- 
tion is  not  so  much  a  question  of  legal  right, 
as  one  of  doing  Justice  and  equity  as  be- 
tween the  parties,  and  in  the  view  of  this 
court,  unless  there  are  some  special  circum- 
stances which  should  control  the  court,  the 
costs  and  expenses  should  equitably  be  borne 
by  Mr.  Schlens  and  the  receivers,  in  the 
same  proportion  that  the  amount  of  the  In- 
terest accruing  to  Mr.  Schlens  bears  to  the 
amount  which  will  pass  to  the  receivers  of 
the  total  recovery  from  the  Munich  Com. 
pany.  The  costs  and  expenses  were  of  two 
characters:  (1)  The  counsel  fees  and  costs 
incurred  in  the  contention  to  sustain  the  en- 
tire contract;  and  (2)  the  counsel  fees  and 
fees  paid  the  Audit  Company  of  New  York 
and  the  American  Audit  Company,  for  audit- 
ing the  accounts  for  the  five  years. 

It  is  urged  on  behalf  of  Mr.  Schlens  that 
this  second  element  of  exi)ense  stands  in  a 
somewhat  different  position  from  the  first. 
The  endeavor  to  separate  this  portion  of  the 
expense  cannot  be  successfully  maintained, 
In  view  of  the  fact  that  the  employment  of 
the  auditing  companies  was  agreed  to  by  the 
parties  on  the  19th  of  November,  1910,  by 
which  agreement  the  auditing  companies  were 
to  state  accounts  in  annual  periods,  not  for 
-certain  spedfled  or  designated  years  less 
than  the  five  years  embraced  in  the  original 
<x>ntract  between  the  United  Surety  Company 
nud  the  Munich  Company.  Mr.  Schlens  was 
not  a  party  to  this  agreement.  That  ag^ree- 
ment  was  between  the  representatives  of  the 
two  insurance  companies;  but  Mr.  Schlens 
now  depends  for  the  ascertainment  of  the 
amount  of  his  claim  upon  the  accounts  so 
stated,  and  it  would  l>e  inequitable  for  him 
to  claim  an  advantage  resulting  from  the 
worlc  of  the  auditing  companies,  and  be  re- 
lieved from  the  burden  thereby  entailed. 
This  court  feels  constrained  to  hold,  there- 
fore, that  Mr.  Schlens  should  share  in  the 


expenses  connected  with  the  Munich  claim 
in  proportion  to  the  amount  of  his  recovery. 

In  wliat  is  known  as  the  Lynch  claim,  the 
court  is  asked  to  treat  as  a  set-off,  or  to 
charge  back  against  Mr.  Schlens,  the  sum  of 
$1,000,  being  the  proceeds  of  certain  shares 
of  stock  in  an  apartment  house  company  in 
Washington,  which  stock  bad,  at  the  time 
when  the  United  Surety  Company  was  a  go- 
ing concern,  been  turned  over  to  it  as  seca- 
rity  for  a  claim  which  it  had  against  a  man 
by  the  name  of  L^nch,  and  which  stock  was 
subsequently  sold  and  netted  the  sum  of  $930. 
In  dealing  with  this  claim  the  auditor  re- 
ported that  testimony  in  addition  to  that 
produced  before  him  was  proposed  to  be  giv- 
en before  the  court,  and  that  without  sucb 
additional  testimony  he  did  not  feel  that  be 
could  pass  on  this  item  intelligently.  By  tbe 
decree  of  the  court  the  $1,000,  known  as  ttie 
Lynch  claim,  was  determined  to  be  a  proper 
credit  to  be  allowed  to  the  receivers.  With 
this  conclusion  this  court  is  unable  to  agree. 
It  was  not  imtil  long  after  the  proceedings 
in  this  matter  had  been  under  way  that  any 
claim  whatever  was  set  up  on  behalf  of  the 
receivers  for  the  allowance  of  this  claim  as 
a  charge  against  the  interest  of  Mr.  Schlens. 
The  evidence  and  pleadings  both  tend  to 
show  timt  the  receivers,  with  full  knowledge 
of  the  facts,  at  first  made  no  claim  whatever 
upon  tills  sum,  and  that  claim  was  first  set 
up  when  the  present  counsel  for  the  receivers 
came  into  the  case.  How  far  it  entered  into 
the  consideration  of  the  court  in  the  case 
reported  In  128  Md.  352,  97  AtL  619,  It  Is  hn- 
possible  to  say,  but  the  opinion  in  that  case 
concludes  with  these  words: 

"All  the  set-oSs,  except  the  item  of  $1,981.16, 
with  interest,  will  be  disallowed." 

But  It  is  not  nece88ar,y  to  rest  the  conda- 
sion  upon  this  branch  of  the  case  either  upon 
the  theory  of  estoppel  or  of  res  adjudicata. 
Tba  Indebtedness  of  Lynch  was  for  the  sum 
of  $2,247.10.  For  this  a  note  of  $3,475  was 
taken,  together  with  86  sharea  of  the  capital 
stock  of  the  Binney  Apartment  House  Com- 
pany. This  collateral  was  among  the  assets 
which  were  sold  by  the  surety  company  to 
Mr.  Knabe.  When  the  stock  was  sold,  and 
the  proceeds  remitted  from  Washington  to 
the  receivers,  they  were  inunediately  turned 
over  by  the  receivers  to  the  counsel  for  Mr. 
Schlens.  At  the  time  when  this  occnrred  tbe 
receivers  had  been  In  possession  of  the  prop- 
erty for  more  than  two  years,  but  made  no 
claim  that  this  stock  or  any  part  of  It  prop- 
erly belonged  to  them  as  against  Mr.  SdiloUi 
the  assignee  of  the  Messrs.  Knabe.  Appar- 
ently the  theory  of  the  receivers  or  their 
counsel  now  Is  that  the  assignment  of  the 
stock  was  for  the  purpose  of  securing  ad- 
vances made  subsequent  to  the  assignment, 
but  the  whole  evidence  tends  to  discredit  this 
theory,  and  accordingly  this  claim  of  tbe  re- 
reivers  and  the  Bank  of  Lyons  will  be  dis- 
allowed. 


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Md.) 


HENDERSON'  y.  HENDERSON 


691 


The  decree  of  the  circalt  court  of  Balti- 
more Cltijr,  from  which  the  three  appeals 
were  taken,  and  which  have  now  been  con- 
sldei'ed,  will  be  affirmed  In  part,  and  reyers- 
ed  In  part,  and  the  case  remanded,  to  the 
end  that  the  said  decree  may  be  modified  In 
accordance  with  the  views  above  expressed. 

Decree  affirmed  In  part,  and  reversed  In 
part,  and  case  remanded;  the  costs  to  be 
paid  by  the  receivers  out  of  the  funds  In 
thdr  hands. 

(m  Md.  MS) 

HBNDKRSON  et  aL  ▼.  HENDERSON  et  aL 

(So.  66.) 
(Court  of  Appeals  of  Maryland.    Jane  28, 1917.) 

1.  Wills  <S=>68f7(8)  —  Constbtjotiow  —  "Rk- 
XAiniHe." 

Testatrix  created  a  trust  In  a  portion  of  her 
estate  in  favor  of  her  daughter,  and  a  separate 
trust  of  the  residue  of  the  estate  for  the  benefit 
of  her  two  sons  during  their  respective  lives, 
and  provided  that  "in  case  either  of  my  sons 
mentioned  in  this  article  of  my  vrill  shall  de- 
part this  life,  without  leaving  a  child  or  chil- 
dren, or  descendant  or  descendants  thereof,  liv- 
ing at  the  time  of  his  death,  or  in  case  he 
should  leave  a  child  or  children,  or  descendant 
or  descendants  thereof  living,  at  the  time  of 
his  death,  and  such  child  or  children,  and  de- 
scendant or  descendants  shall  all  subsequently 
depart  this  life,  under  twenty-one  years  of  age, 
and  without  issue  living,  at  the  time  of  his,  her 
or  their  respective  deaths,  then  in  trust,  that 
the  one  moiety  or  half  of  the  estate  or  property 
in  this  article  of  my  last  will  mentioned  shall 
go  to  and  become  the  property  of  my  remaining 
son,  and  bis  heirs,  executors,  administrators  and 
assigns  forever."  The  daughter  is  still  living. 
One  of  the  sons  died  without  issue,  and  was 
predecessed  by  the  other,  who  left  a  son  now 
25  years  old.  Held,  that  the  word  "remaining," 
as  used  in  the  will,  was  synonymous  with  "sur- 
viving," and  not  intended  in  the  sense  of  "oth- 
er," and  that  therefore  the  will  made  no  provi- 
sion for  the  contingency  which  happened,  and 
there  was  an  intestacy  aa  to  the  remainder  in 
which  the  son  last  dying  had  an  interest  for 
life  which  became  equally  vested  In  the  sister 
and  nephew. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Remain- 
ing.] 

2.  Wills   «=344&— Constbuotiow— Avoidiho 
Intestact. 

While  every  presumption  is  to  be  msde 
against  intestacy  where  the  will  purports  to  dis- 
pose of  the  residue  of  the  estate,  yet  such  pre- 
sumption does  not  change  the  clear  effect  of  the 
language  which  the  testatrix  has  chosen  to  em- 
ploy. 

Appeal  from  drcult  Court  of  Balttoiore 
City;  H.  Arthur  Stump,  Judge. 

"To  be  officially  reported." 

Suit  between  Virginia  May  Henderson  and 
others  and  Catherine  E.  Henderson  and 
others.  From  the  decree  entered,  the  former 
appeal.    Reversed  and  remanded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  PATTISON,  URNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Raymond  S.  Williams  and  Arthur  W. 
Machen,  Jr.,  both  of  Baltimore  (Slinglull  & 
Sllngluff  and  A.  Dana  Hodeon,  all  of  Balti- 


more, on  the  brief),  for  appellants.  O.  Morris 
Harrison,  of  Baltimore  (Robert  L.  Gill,  of 
Baltimore,  on  the  brief),  for  appellees. 

URNER,  J.  The  will  of  Virginia  O.  Hen- 
derson, a  resident  of  the  city  of  Baltimore, 
who  died  In  the  year  1892,  created  a  trust  of 
a  portion  of  her  estate  In  favor  of  her  daugh- 
ter, Virginia  M.  Henderson,  for  life,  and  a 
separate  trust  of  the  residue  of  the  estate  for 
the  equal  toeneflt  of  her  sons,  Henry  C.  Hen- 
derson and  George  B.  Henderson  for  their  re- 
spective lives.  It  was  provided  that  ujmn 
the  death  of  the  daughter  the  estate  held  in 
trust  for  her  during  her  life  should  go  to  her 
Issue  living  at  the  time  of  her  death  who 
might  attain  the  age  of  21  years,  but  if  no 
such  Issue  should  survive,  then  the  property 
should  vest  in  her  two  brothers  already  nam- 
ed as  tenants  In  common.  There  Is  a  pro- 
vision also  that  upon  the  death  of  either  of 
the  two  sons  the  half  of  the  residuary  estate 
held  In  trust  for  his  benefit  should  go  to  his 
issue  who  might  reach  the  age  of  21  years. 
The  clause  to  be  construed  in  this  case  then 
follows: 

"But  in  case  either  of  my  sons  mentioned  In 
this  article  of  my  will  shall  depart  this  life, 
without  leaving  a  child  or  children,  or  descend- 
ant or  descendants  thereof,  living  at  the  time  of 
his  death,  or  in  case  he  should  leave  a  child  or 
children,  or  descendant  or  descendants  thereof 
living,  at  the  time  of  his  death,  and  such  child 
or  children,  and  descendant  or  descendants  shall 
all  subsequently  depart  this  life,  under  twenty- 
one  years  of  age,  and  without  issue  living,  at 
the  time  of  his,  her  or  their  respective  deaths, 
then  in  trust,  that  the  one  moiety  or  half  of 
the  estate  or  property  in  this  article  of  my  last 
will  mentioned  shall  go  to  and  become  the  prop- 
erty of  m^  remaining  son,  and  his  heirs,  execu- 
tors, administrators  and  assigns  forever." 

Virginia  M.  Henderson  Is  still  living. 
George  B.  Henderson  died  In  the  year  1902, 
leaving  a  son,  George  Stewart  Henderson^ 
who  Is  now  25  years  of  age.  Henry  0.  Hen- 
derson died  In  March,  1916,  without  issue, 
and  the  question  to  be  determined  relates  to 
the  proper  disposition  of  the  portion  of  the 
estate  In  which  be  had  a  life  Interest.  It  Is 
claimed  in  Its  entirety  by  George  Stewart 
Henderson,  as  the  sole  surviving  issue  of  his 
deceased  father,  on  the  theory  that  it  has 
passed  to  him  upon  his  uncle's  death  without 
issue,  in  view  of  the  provision  of  the  will 
that  In  such  a  contingency  the  property 
should  go  to  the  "remaining  son"  of  the  tes- 
tatrix, "and  his  heirs,  executors,  administra- 
tors and  assigns  forever."  This  theory  Is  op- 
posed by  the  testatrix's  daughter,  Virginia 
M.  Henderson,  who  asserts  that,  as  her  broth- 
er George  B.  Henderson  was  not  living  when 
the  life  estate  of  her  brother  Henry  C.  Hen- 
derson expired,  the  former  did  not  answer  to 
the  description  of  the  "remaining  son"  to 
whom,  and  his  heirs,  executors,  administra- 
tors, and  assigns,  the  estate  In  remainder  was 
devised  and  bequeathed,  and  that  consequent- 
ly a  condition  cX  Intestacy  exists  as  to  that 
portion  of  the  estate,  as  a  result  of  which  it 


4t=9por  other  caMS  ae«  same  topic  ana  KBT-NVUBBB  In  all  Key-Numbered  Dlgecti  and  Indeze* 

Digitized  by  VjOOQ IC 


092 


101  ATLANTIC  REPORTBB 


^d. 


has  vested  equally  In  hersell  and  her  nephew 
as  the  decedent's  only  next  of  kin  and  heirs 
at  law. 

[1]  The  decision  of  the  question  thus  pre- 
sented depends  upon  the  effect  to  be  given  the 
word  "nemaininK"  in  the  clause  we  have 
quoted.  The  nephew's  contention  ia  that  it 
was  Intended  to  be  understood  in  the  sense  of 
"other";  while  the  aunt's  theory  la  that  it 
was  used  as  the  equivalent  of  "surviving." 
If  the  former  interpretation  la  adopted,  and 
the  limitation  la  construed  as  being  in  effect 
to  the  "other"  son  upon  the  death  of  one 
without  issue,  it  la  assumed  and  urged  that 
no  contingency  of  survivorship  prevented  the 
vesting  of  the  remainder  in  tbie  other  son 
prior  to  the  period  of  his  brother's  death. 
Bnt  if  the  term  "remaining"  is  interpreted 
as  "surviving,"  then  the  vesting  of  the  re- 
mainder in  either  son  would  depend  upon  his 
actually  surviving  the  son  who  died  wlthont 
issue. 

The  will  provides  that  in  the  event  Jnst  in- 
dicated "then"  the  designated  portion  of  the 
trust  estate  should  "go  to  and  become  the 
property!  'or'  the  "remaining  son."  This 
strongly  suggests  that  the  vesting  was  to  be 
upon  the  basis  of  a  status  existing  at  the  time 
when  the  contingency  of  the  death  of  a  son 
without  issue  occurred.  The  word  "remain- 
ing" involves  the  idea  of  continuance  in  the 
same  state  or  position.  Century  Dictionary; 
Webster's  New  International  Dictionary. 
The  son  in  whom  the  Interest  in  remainder 
was  intended  to  vest  on  the  occurrence  of  the 
contingency  mentioned  was  the  son  then  "re- 
maining." A  son  who  had  previously  died 
could  not  answer  to  that  description.  The 
term  evidently  is  synonymous  with  "sur- 
viving" in  the  sense  in  which  it  is  here  em- 
ployed. This  is  the  sense  in  which  it  has 
been  understood  by  this  court  in  other  cases 
in  which  testamentary  limitations  have  been 
construed.  In  Turner  t.  Withers,  23  Md. 
41,  the  court  said: 

"We  are  of  opinion  that  by  tfae  words  'remain- 
ing children'  the  testator  intended  those  children 
■who  might  remain  alivo  at  the  denth  of  the  first 
devisee  for  life— surviving  children.  "This  is  the 
natural  and  ordinarv  meaning  of  the  words,  and 
we  find  nothine  in  tne  will  to  warrant  any  other 
interpretation. 

In  that  case  the  interests  devised  to  the 
"remaining"  children  were  for  their  lives,  and 
this  in  itself  was  conclusive  as  to  the  inten- 
tion that  only  surviving  children  should  be 
entitled  to  such  estates.  But  tiie  definition 
there  given  of  the  term  "remaining"  is  equal- 
ly appropriate  to  the  will  now  being  constru- 
ed. In  Wilson  v.  Bull,  9T  Md.  128,  54  AtL 
629,  a  devise  of  life  estates  to  the  testator's 
children  was  followed  by  a  contingent  limita- 
tion upon  the  death  of  one  without  Issue  to 
the  testator's  "surviving  child  or  children." 
'Cbia  was  held  to  mean  that,  "whenever  one 
^  his  children  shoul'd  die  leaving  no  child  or 
cbildroi  surviving,  then  his  remaining  chil- 
dren or  bis  snrvivlng  dilldren  should  take 
tbe  share  of  the  child  so  dying." 


If  in  this  case  the  remainder  ba'd  been  lim- 
ited to  tbe  surviving  son  of  the  testatrix,  it 
clearly  could  not  be  held  to  have  vested  In  a 
son  who  died  before  the  period  when  the  con- 
tingency was  to  be  determined.  The  cases 
of  Wilson  V.  Bull,  supra,  Anderson  v.  Brown, 
84  Md.  201,  35  AU.  837,  and  Hill  v.  Safe  De- 
posit Co.,  101  Md.  60,  60  AU.  446,  4  Ann.  Cas. 
577,  are  decisive  of  that  question.  No  differ- 
ent effect  can  be  given  to  the  limitation  to 
the  "remaining"  son  In  the  present  will,  in 
view  of  the  meaning  of  tliat  term  as  generally 
understood  and  as  Judicially  accepted. 

In  providing  for  tbe  disposition  of  her  re- 
sldnary  estate  after  the  death  of  her  two 
sons,  the  testatrix  considered  the  contingen- 
cies of  the  death  of  either  with  or  without  Is- 
sue then  living.  If  either  should  die  leaving 
issue  any  of  whom  should  attain  the  age  of 
21  years,  such  surviving  issue  were  to  take 
the  share  of  the  deceased  parent  On  the 
other  hand,  If  either  of  the  sons  should  die 
without  issue  then  Uving,  or  leaving  issue 
who  should  not  live  to  become  21  years  of  age, 
then  the  "remaining"  son  was  to  have  the 
portion  of  bis  deceased  brother.  Bat  the  tes- 
tatrix apparently  did  not  consider  tlie  con- 
tingency, which  has  happened,  of  tbe  death 
of  one  son  wlthont  leaving  issue  and  wltbont 
being  survived  by  tbe  other  son. 

If  we  should  interpret  the  term  "remainr 
ing"  as  being  synonymous  with  "other,"  and 
should  hold  that  the  remainder  in  controvert 
sy  vested  in  the  son  who  first  died,  such  a 
result  would  have  to  be  recognized  regardless 
of  the  qnestlon  as  to  whether  the  one  first 
dying  left  issue  who  survived  to  the  age  spec- 
ified. Upon  such  a  theory  of  construction  the 
remainder  thus  held  to  be  vested  In  tlie  pre- 
deceased son  would  be  absolute,  and  wonld 
not  be  defeasible  upon  his  death  without  leav- 
ing issue.  But  in  the  event  of  his  death 
without  issue  his  own  original  portion  of  tbe 
trust  estate  would  devolve  upon  his  brother, 
who  had  already  died  without  surviving  de- 
scendants. A  contingency  which  would  re- 
sult in  such  an  interchanging  devolution  of 
the  estates  in  remainder  was  evidently  not 
within  the  contemplation  of  tbe  testatrix 
when  she  prepared  her  wUl. 

Tbe  limitation  in  remainder  to  the  remain- 
ing son  "and  his  heirs,  executors,  administra- 
tors and  assigns  forever"  would  simply  have 
had  the  effect  of  vesting  an  absolute  estate 
in  the  surviving  son  upon  the  deatb  of  the 
other  without  issue,  and  it  did  not  operate  to 
establish  a  line  of  heirs  in  whom  the  remain- 
der should  vest,  upon  the  theory  of  stirpital 
succession  advanced  In  the  argument  In 
Wilson  V.  Bull,  supra,  the  limitation,  Tipon 
the  death  of  a  child  without  issue,  was  to  the 
"surviving  child  or  children,  his,  her,  or  their 
heirs,  executors,  administrators  and  assigns 
absolutely."  It  was  held  that  the  issue  of  a 
deceased  child  were  not  entitled  to  share 
with  the  surviving  children.  The  same  con- 
clusion bad  been  reached  In  tbe  constroctlcn 


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liOBBLEIN  T.  CLKM£NTS 


693 


of  a  somewhat  stmllar  provision  in  Anderson 
T.  BrowL,  supra.  In  the  cases  just  referred 
to,  as  in  tl>e  one  now  presented,  there  was  no 
limitation  over  in  the  event  of  the  death  with- 
out issue  of  all  the  children  in  whom  the  pre- 
ceding estates  were  vested. 

[2]  The  fact  that  the  view  we  are  adopttng 
will  produce  a  state  of  partial  Intestacy  la 
oo  reason  for  refoslDg  to  apply  the  terms  of 
the  will  according  to  their  plain  and  ordi- 
nary meaning.  While  every  presumption  is 
to  be  made  against  intestacy, where  the  will 
purports  to  dispose  of  the  residue  of  the  esr 
tate,  yet  such  presumption  does  not  change 
the  clear  etCect  of  the  language  which  the 
testatrix  has  chosen  to  employ.  Id  the  («iin- 
ion  in  Hill  V.  Safe  Deposit  CX>.,  supra,  Chief 
Judge  McSherry  said: 

"It  is  tme  there  is  a  presumption  that  a  tes- 
tator does  not  intend  to  die  intestate,  especially 
where  there  is  a  residnary  clause  in  the  will,  and 
the  courts  win  generally  strugirle  a^inst  adopt- 
ing an  interpretation  whidt  would  lead  to  that 
rMult;  but,  as  already  indicated  in  the  citations 
from  jarman,  and  from  the  judgment  in  Wake 
V.  Varah,  supra,  the  conseqnences  ariaing  from 
an  intestator  are  not  considered  sufficient  to 
indicate  that  the  word  'survivor'  was  designed 
by  the  testator  to  be  synonymous  with  the  word 
•other.'" 

According  to  oar  construction  of  the  wUl 
before  us,  no  provision  has  been  made  for  the 
contingwicy  of  the  'death  of  one  of  the  sons 
of  the  testatrix  In  the  lifetime  of  the  other, 
who  subsequently  died  without  issue,  and 
hence  there  Is  an  intestacy  as  to  the  remain- 
der in  the  portion  of  the  estate  in  which  the 
son  last  dying  had  an  Interest  for  life,  which 
consequently  has  become  vested  equally  in 
the  sister  and  nephew  of  the  testatrix  as  her 
only  heirs  at  law  and  next  of  kin. 

The  decree  below,  which  was  bascJd  upon  a 
different  theory  of  construction,  will  be  re- 
versed, and  the  -cause  remanded  to  the  end 
that  a  decree  may  be  entered  giving  effect  to 
the  conclusions  we  have  stated. 

Decree  reversed,  and  cause  remanded ;  the 
costs  to  be  paid  out  of  the  trust  estat& 

(130  ud.  637) 

LOBBLEIN  et  al.  ▼.  CLEMENTS.    (No.  18.) 

(Court  of  Appeals  of  Maryland.    June  26, 1917.) 

Sai.es  ig=»178(4)— Delivery  and  Acceptancb 
—  Actions  foe  Recovebt  of  PtrscHASK 
Pbiobi— Unifobm  Sales  Act. 

Where  defendants  purchased  a  granite  mon- 
ument, consisting  of  bases,  die,  and  cap,  erect- 
ed same,  attempted  to  remedv  alleged  defects, 
and  failing  to  do  so  replaced  the  defective  parts 
with  others,  all  without  the  knowledge  of  the 
seller,  they  cannot  resist  payment  of  the  pur- 
chase price ;  'Dniforni  Sales  Act  (Code  Pub. 
Civ.  I>aws,  art.  83)  S  69,  providing  that  a  buyer 
is  deemed  to  have  accepted  the  goods  when  he 
does  any  act  in  relation  to  them  after  delivery 
which  is  inconsistent  with  ownership  by  the 
seller. 

Appeal    from    Circuit    Court,    Baltimore 
County  ;    Allan  McLene,  Judge. 
"To  be  ofllcially  reported." 


Suit  by  Charles  Clemen  ts  against  Joseph 
Loebleln  and  another,  trading  as  Loeblein 
Bros.  Judgment  for  plaintiff,  and  defend- 
ants appeaL    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  UK^ 
NER,  and  CX>NSTABIJB,  JJ. 

O.  Cl«n  Oraetzd,  of  Baltimore,  for  appel- 
lants. J.  Purdon  Wright,  of  Baltimore 
(ArmstrMig  Thomas,  of  Baltimore,  on  the 
brief),  for  appellee. 

URiNBB,  J.  The  appellants,  who  are  en- 
gaged in  the  marble  and  granite  business  in 
Baltimore  county,  ordered  from  the  appel- 
lee, who  Is  a  granite  dealer  In  Massachu- 
setts, a  monument  of  that  material  which  the 
purchasers  had  contracted  to  erect  In  a 
local  cemetery.  The  monument  was  to  con- 
sist of  a  bottom  base,  second  base,  die,  and 
cap,  of  spedfled  dimensions,  and  the  price 
for  which  it  was  to  be  furnished  by  the  ap- 
pellee was  $434.  In  due  time  the  monument. 
In  crated  sections,  was  shipped  by  rail  to 
the  appellants,  and  was  moved  by  them 
directly  from  the  car  to  the  cemetery  without 
Inspection.  When  the  various  parts  had 
been  placed  in  posttlon.  It  was  discovered 
that  there  were  several  spots  on  the  cap  and 
die  which  the  appellants  regarded  as  de- 
fects. Without  waiting  to  give  the  appellee 
an  opportunity  to  replace  those  sections  of 
the  monument,  the  appellants  attempted  to 
remove  the  supposed  blemishes  by  cutting 
into  the  surface  of  the  granite.  Later  on 
they  ranoved  the  cap  and  die  to  their  place 
of  business,  and  substituted  for  them  cor- 
resimnding  sections,  obtained  from  another 
source,  which  they  erected  on  the  bases 
procured  from  the  appellee^  This  suit  has 
resulted  from  the  refusal  of  the  appellants 
to  pay  the  purchase  price  for  the  monument, 
on  the  groimd  that  It  did  not  conform  to  the 
speclflcations.  At  the  trial  of  the  case  a 
verdict  was  rendered  by  the  Jury  in  favor  of 
the  plaintiff  for  the  amount  claimed  under 
the  contract  of  sale.  The  Judgment  entered 
on  the  verdict  Is  the  basis  of  this  appeal. 

There  are  three  bills  of  exception  In  the 
record,  but  they  need  not  be  separately  dis- 
cussed, t>ecau8e  the  plaintiff  was  clearly  enti- 
tled to  recover,  and  the  defendants  have 
therefore  no  legal  occasion  to  complain  of 
the  rulings  which  contributed  to  that  result. 
The  testimony  on  both  sides  Is  In  agreement 
as  to  the  vital  fact  that  the  defendants 
treated' and  used  the  purchased  property  In 
the  manner  already  described,  which  was 
wholly  Incompatible  with  the  right  of  rejec- 
tion now  asserted.  According  to  the  Uni- 
form Sales  Act,  the  buyer  Is  deemed  to  have 
accepted  the  goods  when  they  "have  been 
delivered  to  him,  and  he  does  any  act  in  rela- 
tion to  them  which  Is  Inconsistent  with  the 
ownerslilp  of  the  seller."  Code,  art.  83,  S 
69i    There  could  not  well  be  a  plainer  case 


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101  ATLANTIC  REPORTER 


m. 


than  the  present  for  the  application  of  that 
principle.  The  testimony  was  in  conflict  as 
to  whether  the  monument  had  any  blemishes 
of  which  the  defendants  could  rightfully 
complain,  and  as  to  whether  they  had  notl- 
fied'the  plalntUT  of  such  an  objection  within 
five  days  after  the  delivery,  as  provided  in 
the  agreement  of  purchase;  but  there  Is  no 
contradiction  as  to  the  defendants  having 
changed  the  condition  of  the  two  upper  sec- 
tions of  the  monument,  and  as  to  their  hav- 
ing permanently  appropriated  the  two  bases 
to  the  use  for  which  they  were  intended. 
That  such  conduct  necessarily  involved  an 
acceptance  of  the  monument,  under  the  indi- 
visible order  of  purdiase.  Is  too  plain  for 
argument 

There  was  no  evidence  offered  in  support 
oil  a  defense  by  way  of  recoupment  of  dam- 
ages on  account  of  the  alleged  defects.  The 
whole  purpose  of  the  defendants'  proof  was 
to  absolutely  defeat  a  recovery,  upon  the 
theory  that  the  monument  delivered  did  not 
conform  to  the  terms  of  the  purchase.  Such 
a  defense  could  not  properly  have  been  giv- 
en recognition  in  the  rulings  of  the  court 
below,  in  view  of  the  undisputed  and  con- 
clusive acts  of  acceptance  shown  by  the 
record. 

Judgment  affirmed,  with  oosta 


(Ul  Md.  47) 

WII/SON  V.  WILMS  et  aL    (No.  27.) 
(Coart  of  Appeals  of  Maryland.    Jane  27, 1917.) 

1.  EQtrmr  «=3 141(1)  —  Pleadikq  —  Laches — 
Explanation  or  Delat. 

A  bill  for  accounting  of  rents  and  profits 
arising  out  of  certain  lands  of  plaintiff's  deceaB- 
ed  hud>and,  brought  22  years  after  the  death  of 
her  husband,  is  insufficient  on  demurrer,  where 
no  explanation  or  excuse  is  shown  for  the  long 
delay. 

2.  Do  WEB  «=>62— Estoppel  in  Pais. 

A  woman  may  estop  herself  from  setting  up 
a  claim  for  dower  by  acts  in  pais. 

8.  DowEB  «=>78— Action  fob  Aocottntzno— 
Pleading. 
In  accounting  by  widow  for  rents  and  profits 
for  purpose  of  obtaming  dower,  it  is  not  incum- 
bent on  plaintiff,  alleging  that  defendants  are 
unlawfully  in  receipt  of  the  lands,  to  negative 
the  possible  ways  in  which  defendants  might  be 
lawfully  In  receipt  of  the  land ;  the  issue  as 
to  whether  the  land  had  been  conveyed  to  de- 
fendants, or  whether  plaintiff  had  by  deed  or 
contract  released  her  claim  of  dower,  being  mat- 
ter of  defense. 

Appeal  from  Circnit  Court,  Talbot  Coun- 
ty, in  Equity;  Wm.  H.  Adkins,  Jndge. 

Bill  for  accounting  by  Mary  EL  S.  Wilson 
against  J.  McKenny  Willis  and  another. 
EYom  an  order  sustaining  a  demurrer  to  the 
bill,  plainticr  appeals.  Affirmed  and  remand- 
ed, with  leave  to  amend. 

Argued  before  BOYD,  0.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGB.  and  CONSTABLE,  JJ. 


O.  L.  Pendleton,  of  Baltimore,  for  appel< 
lant.  Joseph  B.  Seth  and  Wm.  Mason  She- 
han,  both  of  Easton  (Seth  &  Shehan,  of  Eas- 
t(xi,  on  the  brief),  for  appelleea 

STOGKBRIDGE,  J.  This  case  brings  np 
for  review  the  correctness  of  an  order  of  the 
circuit  court  for  Talbot  county  in  sustaining 
a  demurrer  to  a  bill  of  complaint  filed  for  an 
accounting  of  rents  and  profits  arising  out  of 
certain  lands  of  the  plaintiff's  deceased  hns- 
band.  The  aUegations  of  the  bill  are  exceed- 
ingly meager.  They  set  out  the  conveyance 
of  a  tract  of  land  to  William  O.  G.  Wilson  on 
the  17th  of  August,  1854,  the  marriage  of  the 
plaintiff  and  Dr.  Wilson  19  years  later,  in 
187S,  Dr.  Wilson's  death  21  years  after, 
in  1894,  and  that  the  plaintiff  has  donanded, 
for  th  purpose  of  obtaining  her  dower,  an 
acconcting  from  the  defendants  of  rents  and 
profits  received  by  them,  and  been  refused. 
The  plaintiff  then  daims  $48,000,  with  inte^ 
est,  and  prays  for  an  accounting. 

[1]  There  is  no  statement  in  the  blU  of  the 
time  when  a  demand  was  made,  but  the  Ull 
was  filed  In  December,  1916,  and  it  would 
seem  probable  that  the  demand  had  not  been 
made  at  a  much  earlier  date.  Apparently, 
therefore,  the  first  claim  that  the  plahitlff 
made  to  be  entitled  to  dower  was  22  years 
after  the  death  of  her  husband.  This  long 
lapse  of  time  is  unusual  and  called  for  an 
explanation.  It  cannot  be  said  from  the  al- 
legations of  the  bill  whether  the  doctrine 
of  laches  may  or  may  not  be  successfully  in- 
voked, either  to  the  whole  or  some  part  of 
the  claim  now  made.  So  long  a  delay  In  as- 
serting it  entitled  the  defendants  to  an  ex- 
planation showing  that  the  plaintiff  had  not 
been  derelict  in  asserting  her  rights  to  an 
extent  that  might  operate  to  estop  her  at 
least  to  a  portion  of  the  clattn  made. 

[2]  That  a  woman  may  estop  hersdf  from 
setting  np  a  claim  for  dower  by  acts  in  pais 
is  settled  by  a  long  line  of  authorities.  9  B. 
C.  I*  p.  607,  and  cases  there  dted.  T*e 
great  preponderance  of  authority  is  to  the 
effect,  where  there  has  been  adverse  posses- 
sion, continued  for  the  statutory  period  after 
the  husband's  death,  it  will  defeat  the  wid- 
ow's right  of  dower.  See  cases  collected  in 
9  R.  C.  L.  p.  612.  Whether  such  is  the  rule 
in  this  state  is  open  to  question.  In  view  of 
the  language  used  in  Sellman  v.  Bowm,  8 
Olll  &  J.  60,  29  Am.  Dec.  S24.  Nor  is  it  nec^ 
essary  to  now  pass  upon  that  question.  Bat 
certainly  some  explanation  is  dne  to  show 
why  no  demand  was  made  nntil  22  years 
after  Dr.  Wilson's  death. 

[3]  The  bill  farther  charges  that  tbe  de- 
fendants "are  now  receiving  the  rents  and 
profits  from  the  said  lands  wrongfully,  and 
have  been  receiving  said  rents  and  profits 
for  a  long  time."  It  is  urged  by  the  counsel 
for  the  appellees  that  It  was  incumbent  ufwu 
the  plaintiff  to  go  further,  and  negative  a 


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Md.) 


LUDWIO  ▼.  BALTIMORE  OOUNTT  COM'RS 


695 


jiumb«r  of  poetdble  ways  In  wblch  tlie  de- 
fendants might  be  lawfully  in  receipt  of  the 
rents.  The  position  of  the  appellees  in  this 
respect  la  not  as  well  taken  as  upon  the 
ground  already  discussed.  It  Is  probably 
true  that  the  bill  should  have  set  out  a  sei- 
sin In  Dr.  Wilson  at  the  time  of  hla  marriage 
to  the  plaintiff,  or  at  some  time  during  the 
coverture  of  the  plaintUC;  but  whether  the 
land  had  been  conveyed  to  the  defendants, 
with  or  without  the  Joinder  of  the  plaintiff, 
or  whether  she  had  by  deed  or  contract  re- 
leased her  daUn  for  dower,  were  matters 
-of  defense  for  the  Messrs.  Willis  to  set  up. 

In  view  of  the  lack  of  allegations  in  the 
bill  of  matters  vital  to  the  assertion  of  the 
plaintiff's  claim,  the  order  appealed  from, 
which  sustained  the  demurrer  to  the  bill  and 
gave  the  plaintiff  leave  to  amend,  was  cor- 
rect, and  will  be  affirmed,  and  case  remanded, 
with  leave  to  amend  the  bill  of  complaint 

Order  affirmed,  with  costs,  and  case  re- 
manded, with  leave  to  amend. 


(ta.  Md.  SH)  

IjTJDWIG  et  nx.  v.  BAl/TIMORE  COTJNTT 

COM'RS.     (No.  72.) 
■(Court  of  Appeals  of  Maryland.    June  28,  1917.) 
1.  AppeaTj  awd  Ebrok  <S=>41(1)— Judgment  of 

GiBCUIT    COCBT    OF    BALTIUOBE    COUNTT  — 
FlWALITT. 

Where  the  circuit  court  of  Baltimore  county 
acted  under  a  special  and  exclusive  jurisdiction 
in  affirming  an  order  of  the  county  commlssion- 
-ers  overruling  exceptions  to  tlie  award  of  ex- 
aminers ia  the  assessment  of  benefits  and  the 
award  of  damages  in  the  construction  of  a  sew- 
erage system  in  a  proceeding  by  the  commis- 
sioners under  Acts  1912,  c.  157;  <  182ra,  and 
Acts  1916,  c.  197,  not  specifically  givin|;  a  right 
of  appeal  to  the  Court  of  Appeals,  its  jadg- 
ment  was  final  and  concIusiTe. 
2L  Appeal   and    Ebbos   <S=>41{1)— Judgment 

OF  CiKCurr  Court  of  Baltimore  Countt— 

Apfbal. 
While  the  Court  of  /Lppeals  cannot  review 
the  action  of  the  circuit  court  of  Baltimore 
county  open  appeal  where  that  court  bad  juris- 
diction, yet  if  the  county  commissioners  from 
whose  order  an  appeal  was  taken  to  the  circuit 
court  failed  to  comply  with  the  statutes  relat- 
ing to  sewer  construction  (Acts  1912,  c  157,  | 
132m,  and  Acts  1916,  c.  197),  an  appeal  would 
lie  to  the  Court  of  Appeob  from  the  circuit 
court's  action. 
2w  COCNTIES  €=320^  —  SXWEB  CoHSTBnoTioir 

— ^VALiorrT  OF  Statute. 
Acts  1912,  c.  157,  f  132m,  authorizing  the 
county  commissioners  of  Baltimore  county  to 
adopt  regulationa  relating  to  the  installation  of 
«  sewerage  system,  and  Acts  1916,  c.  197,  rati- 
-fying  such  regulations,  were  a  valid  exercise  of 
legisIatiTe  power. 
4.  CoTTNTiEs  fla»22  — SEWBHCowanitJonoN  — 

Pbocsedinos  by  Oovmir  ComnssioiraBS— 

Validitt. 
Proceedings  of  the  county  commissioners  of 
Baltimore  county  in  a  proceeding  to  install  a 
sewerage  system  strictly  conforming  to  Acts 
1912,  c.  157,  and  Acts  1916,  c.  197,  were  not 
avoided  because  the  commissioners  did  not  give 
notice  by  publishing  the  petition  of  the  50  tax- 
able inhabitants,  because  the  petition  was  not 
■igned  by  50  taxable  inhabitants,  and  because 
■of  alleged  error  in  excluding  evidence  to  show 


that  part  of  such  inliabitants  were  not  taxalde 

inhabitants. 

Appeal  from  Circuit  Court,  Baltimore 
County;  Allan  McLane,  Judge. 

"To  bo  officially  reported." 

Proceeding  by  the  County  Commissioners 
of  Baltimore  County  against  William  F.  Lud- 
wig  and  Mary  Ludwig,  hla  wife.  From  an 
order  of  the  circuit  court  of  Baltimore  county 
affirming  an  order  of  the  County  Commis- 
sioners overruling  defendants'  exceptions  to 
the  award  of  examiners  and  the  assessment 
of  benefits  and  the  award  of  damages  in  the 
construction  of  a  sewerage  system  and  con- 
firming the  same  and  dismlsslDg  defendants' 
appeal  from  such  order,  the  defendants  ap- 
peal.   Appeal  dismissed. 

Argued  before  BOYD,  a  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOOKBRIDGB,  and  CONSTABLE,  JJ. 

A.  P.  Shanklin,  of  Towson,  for  appellants. 
T.  Scott  Offutt  and  Edward  H.  Burke,  both 
of  Towson,  for  appellee. 

BRISCOE,  J.  On  October  23,  1914,  the 
state  board  of  health  of  Maryland,  by  virtue 
of  the  power  conferred  upon  It  by  chapter 
810,  Acts  of  1914  of  the  General  Assembly  of 
Maryland,  directed  the  county  commission- 
ers of  Baltimore  county  to  Install  and  put  in 
operation  a  sewerage  system  within  what 
was  designated  as  "the  Arlington  and  vicin- 
ity district,"  as  described  on  a  plat  attached 
to  the  order. 

The  Arlington  area.  It  Is  stated.  Includes 
a  part  of  Baltimore  county  lying  north  and 
adjacent  to  the  city  of  Baltimore.  Topograph- 
ically It  Is  divided  into  two  drainage  areas 
by  a  natural  watershed.  One  area  drains  in- 
to Jones  B^lls,  a  stream  taking  Its  rise  In 
the  northern  part  of  Baltimore  county  and 
flowing  into  and  through  the  dty  of  Balti- 
more. The  other  drains  naturally  Into  a 
small  stream'  known  as  Peck's  run,  which  Is 
a  tributary  of  Gwynn's  Falls,  which  also 
flows-  through  Baltimore  dty. 

The  act  of  1914  (chapter  810)  was  before 
this  court  for  consideration  In  Welch  v.  Cog- 
Ian,  126  Md.  1,  94  Aa  384,  and  the  constitu- 
tionality of  the  act  was  uphdd  and  sustained. 
The  validity  of  a  similar  order,  as  In  this 
case,  was  passed  by  the  etate  board  of  health, 
and  the  power  and  authority  of  the  county 
commissioners  to  execute  and  carry  into  ef- 
fect 6uch  order  were  passed  upon  and  fully 
recogcnized  in  Welch  v.  Coglan,  supra;  so 
these  questions  are  no  longer  open  for  dis- 
cu.ssicn  in  this  court 

The  proceedings  for  the  purpose  of  pro- 
viding fiinds  for  the  construction  and  es- 
tablishing of  the  sewerage  system  here  in 
quebtion  were  Instituted  and  had  under  and 
by  virtue  of  the  power  and  authority  vested 
In  the  county  commissioners  of  Baltimore 
county  by  chapter  157  of  the  Acts  of  1912,  as 


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amended  by  chapter  804  of  tbe  Acts  of  1914 
and  chapter  197  of  the  Acts  of  1916.  The 
method  and  machinery  adopted  and  pursued 
by  the  county  commissioners  are  set  out  In 
full  In  the  record,  and  from  an  order  of  the 
county  commissioners  passed  on  the  22d  day 
of  November,  1916,  oyerrullng  the  defendants' 
exceptions  to  the  award  of  the  examiners  in 
the  assessment  of  beneflta  and  tbe  award  of 
damages  In  the  construction  of  the  sewerage 
system,  and  cooflrmlng  the  same,  an  appeal 
was  taken  to  the  circuit  court  of  Baltimore 
county.  It  appears  from  the  record  that  tbe 
result  of  the  proceedings  In  the  circuit  court 
of  Baltimore  county  was  as  follows: 

"The  motion  to  quash  was  snbmitted  t«  tbe 
court,  and  was  overruled.  Thereafter  the  ap- 
pellant refused  to  proceed  further  with  his  case, 
and  Mr.  Offutt  made  a  motion  to  dismiBS  the 
appeal  and  affirm  the  order  of  the  county  com- 
missioners. The  motion  was  granted ;  the  court 
statin;;  that  it  would  pass  an  order  affirming 
the  oi^er  of  the  county  commissioners." 

From  the  judgment  and  order  In  the  case, 
this  appeal  has  been  taken.  A  motion  has 
been  filed  by  the  appellee  to  dismiss  this 
appeal  upon  the  ground:  First,  that  the  ap- 
pellants bave  no  right  of  appeal  from  tbe 
Judgment  of  the  circuit  court  of  Baltimore 
county;  and,  second,  because  this  court  is 
without  jurisdiction  to  review  the  rulings  of 
the  circuit  court  on  the  record  In  this  case. 

By  reference  to  the  various  acts  of  assem- 
bly referred  to  herein  it  will  be. seen  that  no 
right  of  appeal  Is  specially  given  by  the  stat- 
utes to  tbe  Court  of  Appeals  from  tbe  cir- 
cnlt  court  of  Baltimore  county  in  the  pro- 
ceedings provided  therein. 

By  chapter  157  of  the  Acts  of  1912, 1 132m, 
it  is  provided  that: 

"The  commissioners  shall  have  full  power  and 
authority  to  provide  by  regulations  •  •  •  for 
the  taking  of  an^  private  property  or  property 
rights  of  any  kind  which  may  reasonably  be 
necessary^  for  any  of  the  purposes  specified  in 
this  act,  including  the  acquisition  of  property  or 

froperty  rights  for  the  disposition  of  sewage: 
'rovided,  however,  that  such  regulations  shall 
contain  appropriate  provisions  for  notice  to  tiie 
owner  or  owners  of  such  property  or  rights,  an 
opportunity  to  be  heard  and  the  payment  of  com- 
pensation for  property  or  property  rights  so 
taken,  and  also  for  an  appeal  by  such  owner  to 
the  circuit  court  for  Baltimore  county,  with  the 
right  to  a  jury  trial  on  issue  of  fact  Involved 
in  such  taking;  and  said  commissioners  shall 
also  have  full  power  and  authority  likewise  to 
provide  for  ascertaining  what  amount  of  actual 
benefit  will  accrue  to  the  owner  or  possessors 
of  any  ground  or  improvements  within  said  coun- 
ty by  reason  of  the  construction  or  enlargement 
of  such  sewerage  system  or  systems,  and  to  pro- 
vide for  assessing  and  levying  the  cost  of  such 
work  in  whole  or  in  part  upon  the  owners  of 
property  so  benefited  to  the  extent  of  such  ben- 
efit, and  for  collecting  the  same,  such  assess- 
ment to  be  made  only  after  notice,  with  an  op- 
portunity to  be  heard  and  the  right  of  appeal 
as  aforesaid,  and  when  so  made,  to  he  a  lien 
upon  the  property  of  the  person  so  assessed  until 
paid,  and  to  be  recoverable  as  county  taxes  are." 

By  chapter  197  of  the  Acts  of  1916,  pro- 
viding for  the  construction  and  establish- 
ment of  sewers,  sewerage  systems,  etc.  In 


I  Baltimore  county,  and  providing  the  ways 
and  means  therefore,  eta,  an  appeal  is  pro- 
vided from  tbe  assessment  or  award  made 
by  the  county  commissioners  to  the  drcutt 
court  for  Baltimore  county,  and  upon  tbe 
trial  of  such  appeal  the  court  shall  give  such 
judgment  in  the  matter  as  may  be  proper, 
and  the  assessment  for  benefits  and  the 
awards  for  damages  to  the  extent  the  order 
is  afllrmed  shall  become  final  and  shall  be 
collected  and  shall  become  due  and  payable 
as  provided  by  the  statute. 

[1  ]  It  Is  well-settled  law  In  this  state  that 
if  the  drcnit  court  in  this  case  acted  under 
a  special  and  exclusive  jurisdiction,  its  Judg- 
ment is  final  and  concl«slve,  unless  the  right 
of  appeal  is  expressly  given  by  statute. 

In  Railroad  Co.  t.  Condon,  8  GiU  &  J.  448, 
It  is  said  that  there  Is  no  appeal  expressly 
given  to  the  Court  of  Appeals  under  the  act 
of  assembly  Investing  the  county  courts  with 
the  power  of  hearing  and  setting  aside  in- 
quisitions like  the  present.  It  is  a  special 
limited  Jurisdiction  given  to  the  county 
courts,  from  the  decision  of  which  no  appeal 
lies  to  any  other  tribunal.  Savage  Mfg.  Co. 
v.  Owings,  3  GUI,  498;  Margraff  v.  Cunning- 
ham, 57  Md.  685;  Wells  v.  Thomas,  72  Md. 
26,  19  Atl.  118;  Hull  r.  Southern  Develop- 
ment Co.,  89  Md.  11,  42  AU.  943. 

[J]  While  It  is  clear  that  this  court  could 
not  review  the  rulings  or  action  of  the  cir- 
cuit court  upon  appeal  if  that  court  had 
Jurisdiction  yet  It  Is  also  well  settled  that,  if 
the  county  commissioners  exceeded  their  Ju- 
risdiction conferred  by  the  statute,  and  failed 
to  comply  with  the  essential  requirements  of 
the  statute,  an  ain>eal  lies  to  this  court  from 
the  action  of  the  circuit  court  Greenland  v. 
County  Oora'rs,  68  Md.  89,  11  Att  681; 
Smith  V.  Goldsborough,  80  Md.  49,  30  Atl. 
574 ;  Cumberland  B.  R.  Co.  v.  Martin,  100 
Md.  165,  50  Atl.  714;  Montgomfery  County 
V.  Henderson,  122  Md.  633,  89  Atl.  858. 

This  brings  us  to  a  closer  examination  of 
the  statutes  and  the  correctness  of  the  proce- 
dure adopted  and  followed  by  the  county 
commissioners  thereunder. 

The  objections  raised  by  the  appellant  up- 
on the  motloa  to  quash,  it  will  be  seen,  upon 
a  careful  examination  of  the  record,  appear 
to  be  more  technical  than  real,  and,  even  if 
they  could  be  considered,  would  not  bare 
injured  or  prejudiced  the  rights  of  the  ap- 
pellant under  the  proceedings  In  this  case. 
They  are  as  follows: 

(1)  Because  the  county  commissioners  did 
not  give  notice  by  publishing  the  petition  of 
the  50  taxable  Inhabitants  as  required  by 
statute. 

(2)  Because  the  petition  was  not  signed 
by  50  taxable  Inhabitants  as  the  statote 
required. 

(3)  That  the  oonrt  below  committed  re- 
versible error  In  refusing  to  admit  evidence 
to  show  that  of  the  60  petitioners  11,  when 
they  signed  It,  were  not  taxable  inhabitants. 


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DICUS  T.  WC08 


697 


[3]  The  rales  and  r^^atlons  adopted  by 
tbe  county  commissioners  of  Baltimore  coun- 
ty relating  to  the  Installation  of  t&e  sewer- 
age system  were  approved  by  the  order  of 
tbe  state-  board  of  health.  They  were  adt^t- 
ed  by  the  county  omimissloners  on  August 
6,  1914,  and  were  passed  under  the  authority 
of  chapter  157  of  the  Acts  of  1812,  and  these 
ordinances  were  subsequently  ratified  and 
sanctioned  by  chapter  197  of  the  Acts  of 
1916.  These  acts  were  a  valid  exercise  of 
legislative  power,  and  are  free  from  any 
constitutional  objection  urged  against  them. 
Welch  V.  Coglan,  126  Md.  1,  94  Atl.  884. 
And  cases  there  dted. 

[4]  The  proceedings  of  the  county  commlS' 
sloners  were  conducted  In  strict  conformity 
with  these  statutes,  and  the  essential  re- 
quirements of  the  statutes  were  In  sob- 
stance  fully  complied  with,  and  the  irregulari- 
ties complained  of  were  not  such  as  to  avoid 
or  to  justify  the  court  In  striking  down  the 
proceedings. 

The  record  In  the  case  discloses  the  fact 
that  the  inoceedlngs  before  the  commission- 
ers were  conducted  with  great  care,  and  the 
statutes  followed  with  unusual  particularity. 
We  have  examined  the  record  with  care  and 
tbe  various  questions  presented  by  the  very 
fnU  and  carefully  prepared  brief  filed  by 
the  counsel  for  the  appellee,  In  so  far  as  they 
are  before  us  on  this  appeal,  and  must  de- 
termine there  Is  nothing  In  the  objections 
urged  by  the  appellant  to  render  the  proceed- 
ings void,  certainly  so  far  as  they  affect  any 
jurisdictional  questions. 

There  were  certain  exceptions  taken  to 
tbe  rulings  of  the  court  upon  testimony  up- 
on the  motions  to  quash  the  assessment,  but 
tbey  are  not  presented  by  bills  of  exoepthns 
and  will  not  be  considered  by  us. 

It  follows  from  what  has  been  said  that 
tbe  county  commissioners  and  the  circuit 
court  of  Baltimore  county  had  jurisdiction 
In  this  case,  and,  the  judgment  of  the  cir- 
cuit court  being  final  under  the  statute,  this 
court  is  without  authority  or  jurisdiction 
to  review  the  action  of  the  court  below. 

If  the  appeal  was  properly  before  us,  we 
would  have  no  hesitation  In  affirming  the 
ac>tlon  of  the  circuit  court  and  the  order  ap- 
pealed from  her^n. 

Appeal  dismissed,  with  cost& 


<131  Hd.  S7) 

DICUS  V.  DICUS.    (No.  63.) 

{Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  DivoBCK  €=9l30— Cbuelty— Statdtb— Bvi- 

DEI7CE. 

Under  Code  Pub.  Gen.  Laws  lOM,  art  35. 
I  4,  providing  that  no  divorce  shall  be  granted 
on  the  testimony  of  the  plaintiff  alone,  a  wife's 
corroborated  testimony  as  to  her  husband's  cruel- 
ty, contradicted  by  him,  would  not  sustain  a  de- 
cree of  divorce  on  that  ground. 


2.  DzvoBos  «B9l29(l)— AouunBT— EyiDBircK 

Eividence  in  a  wife's  suit  for  divorce  held  to 
establish  the  husband's  alleged  adultery. 

3.  DivoBCE  S=>12d(9)— Adultebt— Pboof. 

It  is  not  necessary  that  direct  evidence  of 
tbe  fact  of  adultery  shall  be  offered,  and  the  of- 
fense may  be  proven  by  circumstances  which 
justify  the  inference  of  guilt. 

4.  DivoBCE   €=172  — FoEMEB   Adjudication 
— Conclusiveness. 

A  decree  in  a  former  suit  for  divorce  on  the 
ground  of  the  husband's  adultery  dismissing  the 
bill  for  insufficiency  of  proof,  and  from  which 
there  was  no  appeal  was  no  bar  to  a  subsequent 
suit  for  divorce  on  the  ground  of  his  subsequent 
commission  of  the  offense. 

5.  DiVOBCE  4s>115— ADULIEET— EVIDEIfCB. 

In  a  wife's  suit  for  divorce  on  tbe  gromid 

of  adultery,  evidence  referring  to  circumstances 
proven  in  her  former  suit  for  the  same  cause 
was  admissible  as  reflecting  upon  the  husband's 
subsequent  conduct 

6.  DiVOBOB  «B»a09— ALIIIOHT  PBNDBRTB  LUC 

The  settled  rule  is  that  a  wife  without  ade- 
quate means  shall  be  awarded  alimony  pendente 
lite,  regardless  of  the  merits  of  tbe  lingation. 

7.  Divorce  «=»  182— Costs  and  Counsel  Fees 

— JUBISDICnON. 

A  wife's  application  for  an  order  that  her 
husband  pay  her  a  sufficient  sum  for  her  costs 
and  counsel  fees  in  the  prosecution  of  her  ap- 
peal from  a  decree  in  her  divorce  suit  should 
be  made  to  the  court  below,  even  after  the  ap- 
peal baa  been  entered. 

Appeal  from  Circuit  Court  of  Baltimore 
City ;   Walter  I.  Dawklns,  Judge. 

"Ito  be  officially  reported." 

Suit  for  divorce  by  Margaret  S.  Dlcus 
aigalnst  Jacob  M.  Dicus.  From  a  decree  dis- 
missing the  suit,  plalntUF  appeals.  Decree 
reversed,  and  cause  remanded. 

Argued  before  BOTD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
and  CONSTABLBk  JJ. 

David  Ash,  of  Baltimore,  for  appellant 
Morrill  N.  Packard  and  Benjamin  U  Freeny, 
both  of  Baltimore,  for  app^ee. 

URNER,  J.  The  appellant  sued  for  a  di- 
vorce from  her  husband,  the  appellee,  on 
the  grounds  of  cruelty  and  adultery,  and  this 
appeal  Is  from  a  decree  dismissing  the  bill  of 
complaint 

[1]  The  only  evidence  in  support  of  the 
charge  of  cruelty  was  the  appellant's  own 
testimony,  and  that  was  contradicted  by 
the  appellee.  There  was  no  corroboration  la 
any  form  of  the  wife's  statements  as  to  the 
mistreatment  of  which  she  complained.  In  a 
suit  for  divorce  a  decree  cannot  be  entered 
upon  the  testimony  of  the  plaintiff  alone,  but 
corroborative  proof  is  requisite.  Code,  art. 
35,  {  4;  Tomkey  v.  Tomkey,  130  Md.  292,  100 
Atl.  283;  Marshall  v.  Marshall,  122  Md.  694, 
91  AtL  1067;  Twlgg  V.  Twlgg,  107  Md.  677, 
69  Atl.  617.  The  allegation  of  cruelty  there- 
fore is  not  sufficiently  sustained  to  justify 
a  decree  of  divorce  on  that  ground. 

[2,  3]  With  respect  to  the  charge  of  adul- 
tery we  have  reached  a  different  conclusion. 
In  our  opinion  the  proof  points  convincingly 
to  tbe  husband's  infidelity.    It  is  shown  and 


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698 


101  ATLANTIC  REPORTER 


(Vd, 


admitted  that  be  Is  IlTlng  In  the  same  bouse 
witb  tbe  troman  who  Is  named  In  tbe  bUl  as 
tbe  person  with  whom  the  alleged  adultery 
was  committed.  This  woman,  according  to 
the  decided  weight  of  the  testimony,  has  a 
bad  reputation  for  chastity.  She  was  em- 
braced and  caressed  by  the  appellant's  hus- 
band on  a  number  of  occasions  In  the  pres- 
ence of  a  caller  at  the  house,  who  testified  to 
that  effect  It  is  proven  by  another  disin- 
terested witness  that  the  corespondent  sur- 
reptitiously left  the  appellee's  house  one 
aftemon  by  the  back  way,  while  bis  wife  and 
family  were  away  from  home.  Just  before 
the  woman  left  the  house,  as  it  was  testified, 
the  appellee  went  to  the  back  gate  and  look- 
ed up  and  down  the  alley,  through  which  she 
immediately  afterwards  took  her  departure. 
They  were  twice  alone  together  for  the  great- 
er  part  of  the  day  at  an  untenanted  house  of 
the  appellee  in  the  country.  On  one  of  these 
occasions  he  was  heard  to  address  a  term  of 
endearment  to  her  when  she  called  to  him 
from  an  upper  room  to  bring  some  water. 
He  was  once  heard  to  talk  to  the  woman  so 
Immodestly  that  she  protested,  with  the  re- 
mark that  a  visitor,  before  whom  the  lan- 
guage was  used,  might  think  that  she  was 
being  kept  by  the  appellee.  His  associations 
with  the  corespondent  were  begun  long  prior 
to  the  final  separation  between  himself  and 
bis  wife  in  October,  1913,  and  have  continued 
to  the  present  time.  He  Is  the  only  male 
lodger  In  tbe  bouse  which  the  woman  occupies 
with  her  sister  and  niece.  The  sister's  repu- 
tation for  chastity  has  also  been  impeached. 

The  proof  in  this  case  is  clear  as  to  the 
existence  of  the  disposition  and  opportunities 
from  which  the  commission  of  the  adultery 
changed  is  to  be  Inferred.  It  is  not  necessary, 
and  it  is  usually  impossible,  that  direct  evi- 
dence of  the  fact  of  adultery  shall  be  offered. 
The  offense  may  be  proven  by  circumstances 
which  Justify  the  Inference  of  guilt  Shu- 
feldt  V.  Shufeldt,  86  Md.  529,  39  Atl.  416; 
Thless  V.  Thiess,  124  Md.  295,  92  AU.  922; 
Kremelberg  v.  Kremelberg,  62  Md.  663; 
Rasch  V.  Rasch,  105  Md.  606,  66  Aa  409; 
Robbins  v.  Robblns,  121  Md.  695,  89  Atl.  Ii:i5. 
The  conduct  of  the  appellee  and  corespondent, 
as  described  In  the  testimony,  their  famil- 
iarities and  embraces,  his  open  immodesty  of 
language  in  addressing  her,  their  clandestine 
movements  when  they  were  alone  at  his 
house,  her  reputation  for  lack  of  virtue  and 
bis  position  and  opportunities  as  an  inmate 
of  her  home,  lead  us  irresistibly  to  a  convic- 
tion as  to  the  adulterous  nature  of  their  re- 
lations. 

[4,  6]  This  Is  the  second  suit  by  the  appel- 
lant for  divorce  from  her  husband  on  the 
ground  of  adultery  with  tbe  same  corespond- 
ent who  is  named  In  tbe  present  bill.  Tbe 
first  suit  was  instituted  Immediately  after 
the  final  separation  of  the  parties  in  1913. 
That  suit  resulted  in  a  decree  dismissing  tbe 
bill  for  Insufllclency  of  proof.    There  was  no 


appeal  from  that  decree,  and  It  Is  relied  upon 
as  a  former  adjudication  of  the  question  in- 
volved In  the  pending  suit  This  defense  Is 
not  sustainable.  Whatever  effect  the  former 
decree  mit^t  be  held  to  have  In  precluding  a 
divorce  for  adultery  alleged  to  have  been 
committed  before  that  decision,  it  certainly 
cannot  have  the  effect  of  shielding  the  appel- 
lee from  the  legal  consequences  of  the  subse- 
quent commission  of  such  an  offense^  Tbe 
testimony  in  the  case  now  before  os  relates  t» 
incidents  whidi  have  occurred  and  coaditlons 
which  have  existed  since  the  prior  decree 
was  rendered.  Some  of  the  evidence  refers 
to  circumstances  proven  in  the  former  case, 
but  this  was  admissible  as  reflectiiis  upon 
thdr  later  conduct  Shufeldt  ▼.  Shufeldt, 
supra.  Upon  tbe  testimony  as  a  whole  we 
are  satisfied  that  adultery  of  the  husband 
since  tbe  dismissal  of  tbe  first  bill  has  beeo 
sufficiently  proved,  and  that  the  wife  is  there- 
fiore  entitled  to  an  absolute  divorce. 

[6]  The  decree  under  review,  in  disposing 
of  the  pending  suit,  refused  the  prayer  of  the 
bill  for  an  allowance  of  alimony  pendente 
lite^  although  it  required  tbe  defendant  to 
pay  a  fee  for  tbe  plaintiff's  solicitor.  The 
record  does  not  disclose  any  reason  for  ex- 
cepting the  case  from  tbe  settled  rule  that  a 
wdfe  without  adequate  means  should  be 
awarded  alinLony  pendente  lite  regardless  of 
the  merits  of  the  litigation.  Crane  v.  Cranes 
128  Md.  214,  97  Atl.  635 ;  Buckner  v.  Buckner, 
U8  Md.  268,  84  Aa  471. 

[7]  Application  has  been  made  to  Oils  court 
for  an  order  requiring  tbe  appellee  to  pay 
the  plaintiCt  a  sufficient  sum  for  her  costs 
and  counsel  fee  In  tbe  prosecution  of  tbe  ap- 
peal. This  was  a  question  over  which  the 
court  below  bad  Jurisdiction  after  tbe  appeal 
was  entered.  Crane  v.  Crane,  supra;  Oat- 
law  V.  Outlaw,  122  Md.  696,  91  Aa  1067; 
Rohrback  v.  Bohrback,  7S  Md.  318,  23  AtL 
610;  Buckner  v.  Buckner,  supra.  The  appli- 
cation should  have  been  made  to  the  trial 
court,  and  If  it  bad  been  presented  there,  we 
have  no  reason  to  doubt  that  it  would  have 
been  given  due  consideration. 

The  decree  will  be  reversed,  and  tbe  cause 
remanded  for  a  decree  of  divorce  a  Tlncnlo 
matrimonii,  and  for  such  allowance  of  ali- 
mony, under  the  prayers  of  the  bill,  as  tbe 
court  below  may  determine  to  be  prttper. 

Decree  reversed,  with  costs,  and  cause  re- 
manded. 


(ISlMd.  MO) 
GISCHELL  V.  BALLMAN  et  nz.  (Na  45.) 
(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Wills  9=9602(1;— Devises  ir  Fee. 

Testator  willed  land  to  his  voungest  ton, 
his  heirs  and  assigns,  and  directed  that,  as  the 
devisee  was  not  so  well  able  to  provide  for  and 
take  care  of  himself,  another  should  look  after 
his  interest,  advise  and  direct  him,  and  in  case 
the  devisee  should  not  marry  and  should  die 
first,  such  other  should  have  and  inherit  one-halt 
of  said  part  of  said  property.     Held,  that  the 


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OISCHELL  7.  BALLMAN 


699 


devisee,  havinz  married,  became  the  owner  in 
fee  simple  of  the  land  devised. 

2.  WlIiB   ®=»672(1)— TbUSTS— EVIDBNCK. 

The  part  of  tlie  will  directing  that  another 
shall  look  after  the  devisee's  interest  did  not 
create  a  trust 

3.  Wills  <S=>601(4)— Reductiom  of  Peb-Sim- 
PLE  Estate— LiFB  Estate. 

A  later  item  of  a  will  directing  that  all  the 
land  and  property  hereby  bequeathed  shall  not 
be  sold  on  any  account  could  not  have  the  effect 
-of  reducing  a  fee  simple  to  a  life  estate. 

4.  Wills  9s>64&— Rxstsairt  on  Alibnatior. 

The  item  was  a  restraint  on  alienation,  and 
therefore  void. 

Appeal  from  Circuit  Court,  Anne  Anmdel 
Gonnty;  Jas.  R.  Brashears,  Judge. 

Suit  by  Frank  H.  Ballman  and  wife  against 
WlUUun  G.  Glscbell.  Decree  for  plaintiffs, 
and  defendant  appeals.    Affirmed,  with  co&ts. 

Argued  before  B07D,  C.  J.,  and  BRISCOl!:, 
BUBKB.  THOMAS,  URNBR,  STOCK- 
BRIDGES,  and  CONSTABL.B,  JJ. 

Cbarles  H.  Buck,  of  Baltimore,  for  appel- 
lant. Cbarles  F.  Stein,  of  Baltimore,  for  ap- 
pellees. 

BOYD,  0.  J.  This  la  an  appeal  from  a 
decree  for  spedflc  performance  requiring  the 
defendant  (appellant)  to  pay  to  the  plaintiffs 
(appellees)  the  purchase  money  for  a  tract 
of  land  In  Anne  Arundel  county  which  he 
agreed  to  purchase  from  them,  and  directing 
the  plaintiffs  to  convey  said  land  to  the  de- 
f^idant  upon  his  payment  of  the  purchase 
money  or  bringing  It  Into  court  Q?he  appel- 
lant states  In  bia  answer  that  he  Is  anxious 
and  willing  to  complete  the  purchase,  and  to 
pay  the  purchase  money,  and  that  he  will 
do  so  In  accordance  with  his  contract  U  by 
a  true  construction  of  the  devise  to  Frank 
Harman  Ballman  in  the  will  of  Henry  Ball- 
man  the  former  became  and  Is  seised  of  the 
entire  and  absolute  fee-simple  estate  In  the 
lands  purchased. 

[1]  Henry  Ballman,  the  father  of  Frank  H. 
Ballman,  died  on  or  about  the  Slst  day  of 
October,  18S4,  seised  of  a  tract  of  land  con- 
taining about  60  acres,  of  which  that  In  con- 
troversy in  this  case  Is  a  part.  By  his  last 
will  and  testament  he  devised  to  his  daughter, 
Lieara  OaroUne  Ballman,  one-third  part  of 
Ills  home  tract  of  land,  where  he  then  re- 
sided, and  to  his  son  Christian  Frederick 
Ballman  the  north  third  of  the  home  farm, 
and  made  the  following  provision  for  bis  son 
Frank  Harman  Ballman,  one  of  the  appellees: 
"Item.  I  will  and  bequeath  to  my  youngest 
son,  Frank  Harman,  the  south  third  of  my  home 
tract,  containing  sixteen  and  three-quarters 
acres  of  land,  more  or  less,  with  the  old  dwelling 
honse  and  the  large  barn  nnd  such  buildings  as 
■hall  fall  to  his  third  of  said  tract,  with  the 
well  of  water  and  pump,  but  I  wUl  and  direct 
that  the  heirs  to  the  several  parts  of  my  home 
farm  shall  have  equal  rieht  to  use  the  well  or 
pump  aforesaid,  provided  they  bear  equal  part 
of  the  repairs  to  said  pump  and  well.  And 
further  that  each  of  said  heirs  shall  have  free 
right  of  way  to  and  from  said  farm,  or  their 


parts  thereof,  without  let  or  hindrance.  To  the 
said  Frank,  bis  heirs  and  aswgns.  And  where- 
as the  said  Frank  is  not  so  well  able  to  pro- 
vide for  and  take  care  of  himself,  I  direct  that 
Henry  Frederick  shall  look  after  his  interest, 
advise  and  direct  Frank  as  best  he  can,  and  in 
case  Frank  shall  not  marry  and  die  before  the 
said  Henry,  then  the  said  Henry  shall  have  and 
inherit  one-half  of  Frank's  part  of  said  property, 
and  I  also  direct  that  in  case  Frank  shall  die  as 
aforesaid,  that  Henry  shall  have  him  decently 
baried  and  properly  attend  to  him  in  all  his 
sickness  in  consideration  of  the  aforesaid  in- 
terest." 

The  answer  admits  that  after  the  deatli  of 
the  testator,  and  under  the  provisions  of  the 
vdll,  Ftank  H.  Ballman  entered  into  posses- 
sion of  the  part  of  the  tract  of  land  devised 
to  him,  claiming  to  be  seised  of  the  entire 
fee-simple  estate  therein,  and  that  he  has 
ever  since  remained  In  possession  thereof,  al- 
ways claiming  to  be  so  seised  of  the  raitlre 
fee-simple  estate,  but  the  appellant  contends 
that  by  the  true  construction  of  the  will  he 
did  not  become  seised  of  the  entire  fee-simple 
estate,  and  at  best  only  became  seised  of  a 
defeasible  estate  in  fee  therein,  to  be  divested 
upon  his  marriage  or  death  before  the  death 
of  his  brother,  Henry,  and  that,  although  he 
Is  married  and  alive,  he  is  not  seised  of  the 
entire  fee-simple  estate^  and  cannot  convey 
sudi  estate  to  the  appellant  as  was  contract- 
ed to  be  sold  him. 

The  appellant  makes  no  objection  to  the 
provisions  for  the  use  of  the  well  or  pump 
or  the  right  of  way  provided  for  in  the  will. 
It  Is  not  easy  to  find  such  dl£3culty  about 
the  title  as  Justified  an  appeal  to  this  court. 
The  will  was'  evidently  not  drawn  by  one 
skilled  In  such  work,  but  It  Is  sufficiently 
clear  to  show  the  Intention  of  the  testator. 
After  saying  that  he  wills  and  bequeaths  to 
his  son  Frank  Harman  the  south  third  of 
his  home  tract,  and  giving  the  heirs  the  right 
to  the  use  of  the  well  or  pump  and  the  right 
of  way,  the  testator  apparently  desired  to 
emphasize  the  fact  that  he  intended  his  bxxi 
Frank  to  have  the  property  In  fee  simple,  as 
he  added  In  a  separate  sentence,  "To  the  said 
B'l-ank,  his  heirs  and  assigns."  He  had  In 
previous  Items  left  a  third  of  his  home  tract  to 
bis  daughter,  Laura  Caroline,  and  the  north 
tlilrd  of  that  farm  to  his  son  Chri&tian  Fred- 
erick, and  In  both  of  those  Items  used  the 
same  language,  except  he  added  the  word 
"forever"  in  his  gift  to  Charles  Frederick. 

[2]  The  part  of  the  Item  leaving  the  prop- 
erty to  Frank  In  which  he  directs  that  Henry 
Frederick  shall  look  after  his  Interest,  advise 
and  direct  him  as  best  he  can,  certainly  did 
not  create  a  trust.  It  was  Just  an  expression 
of  the  father  of  the  Interest  be  had  In  the 
welfare  of  his  youngest  son,  calling  upon 
Henry  to  watch  over  him.  Then  when  the 
will  says,  "and  In  case  Frank  shall  not 
marry  and  die  before  the  said  Henry,  then 
the  said  Henry  shall  have  and  Inherit  one- 
half  of  Frank's  part  of  said  property,"  etc.. 


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It  Is  clear  that  Henry  was  only  to  have  the 
one-half  It  Frank  did  not  marry  and  died 
before  him.  A&  it  Is  admitted  that  Frank  has 
married  and  is  stUI  living,  clearly  Henry  has 
no  Interest  In  the  property  by  reason  of  that 
provision.  The  testator  did  not  simply  say, 
"In  case  Frank  diet  before  Henry,"  but  "in 
case  Frank  shall  not  marry  and  die  before 
the  said  Henry."  He  knew  tliat  if  he  mar- 
ried he  might  leave  a  child  or  children,  or  a 
widow,  or  both,  surviving  him,  and  he  in- 
dicated no  intention  to  leave  the  one-half  to 
Henry  la  that  event,  or  in  any  event,  unless 
Frank  did  not  marry  and  predeceased  Henry. 
The  concluding  claia&«  of  the  item,  "and  I 
also  direct  that  in  case  EVank  shall  die  as 
aforesaid,"  could  have  no  effect  unless  be 
did  not  marry  and  did  die  before  Henry.  It 
seems  to  ua  that  that  item  ia  too  clear  for 
controversy. 
[3]  The  next  item  in  the  will  Is  aa  follows: 
"Item.  I  will  and  direct  that  all  the  land  and 
property  hereby  by  me  bequeathed  shall  not  be 
sold  on  any  account,  but  that  the  aforesaid  heirs 
may  rent  or  lease  their  said  parts  of  said  land, 
but  shall  not  sell  during  their  natnral  lives." 

Inasmuch  as  by  the  will  the  testator  had 
already  given  Frank  a  fee-simple  interest  in 
the  property  he  left  to  him,  that  item  cannot 
have  the  effect  of  reducing  his  interest  to  a 
mere  life  estate.  Such  a  construction  would 
be  wholly  contrary  to  the  provision  as  to 
Henry  taking  under  the  previous  item  the 
proporty  left  to  Frank;  for,  if  Frank  only 
bad  a  life  estate,  how  could  Henry  "have 
and  Inherit  one^ialf  of  Frank's  part  of  said 
property"?  But  such  restraints  on  alienation 
are  not  favored,  and  are  very  generally  held 
to  be  contrary  to  public  policy.  In  many 
cases  in  this  court  the  subject  has  been  dealt 
with.  Amongst  them  are  Smith  v.  Clark,  10 
Md.  186;  Warner  v.  Rice,  66  Md.  436,  8  Atl. 
84;  Stansbury  v.  Hubner,  73  Md.  228,  20 
AU.  904,  11  L.  R.  A.  204,  25  Am.  St  Rep.  584: 
Trinity  M.  E.  Church  v.  Baker,  91  Md.  639, 
674,  46  Atl.  1020;  Blackshere  v.  Samuel 
Ready  School,  94  Md.  773,  51  Atl.  1066; 
aark  V.  Clark,  09  Md.  356,  58  Aa  24;  and 
Doan  V.  Ascension  Parish,  103  Md.  662,  64 
Atl.  314,  7  L.  R.  A.  (N.  S.)  419,  115  Am.  St 
Rep.  379.  See,  also,  Manierre  v.  WelUng,  32 
R.  I.  104,  78  Atl.  607,  32  U  R.  A.  (N.  S.)  695, 
reported  in  Ann.  Cas.  1912C,  1311,  where  there 
is  a  note  on  page  1329,  citing  many  authorities, 
and  Queensborough  Land  Co.  v.  Cazeauz,  136 
La.  724,  67  South.  641,  U  R.  A.  1916B,  1201, 
reported  in  Ann.  Cas.  1916D,  1248,  and  note 
on  page  1254. 

[4]  It  is  dear  that  this  Item  is  such  an 
attempted  restraint  on  the  alienation  of  the 
property  left  l^rank  in  fee  simple  (as  we  hold 
It  was  left)  as  to  be  void  and  of  no  effect. 
We  are  only  concerned  with  Frank's  interest, 
and  therefore  say  nothing  as  to  the  others, 
but  our  silence  must  not  be  construed  as  in- 
timating a  doubt  on  the  subject  as  to  those 


interests,  as  we  neither  express  nor  intimate 
any  opinion. 

The  decree  will  be  affirmed,  but  we  will 
direct  that  each  side  pay  one-half  of  tbe 
costs  in  this  court,  and  that  the  appellant 
pay  the  costs  below,  as  directed  by  the  de- 
cree of  the  lower  court 

Decree  affirmed,  each  party  to  pay  one-baU 
of  tbe  costs  in  this  court,  and  tbe  appellant 
to  pay  the  costs  below. 

(in  Hd.70) 

HOCHSCHILD  et  al.  v.  OEOIL.  (No.  52.) 
(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Keolioknce  iS=3l3G(22)— Jubt  Cask. 

In  an  action  for  injuries  sustained  by  plain- 
tiff in  entering  defendants'  store  tiirough  a  re- 
volving door,  the  question  of  necligence  keld 
for  tbe  jury. 

2.  Tbial  «=»295(1)  —  iMSTBDcnoNS  —  Com- 

BTBUCTION   ToGETnKB. 

In  determining  the  correctness  of  a  prayer 
tbe  Court  of  Appeals  must  not  only  consider  | 

tbe  part  to  which  objection  is  made,  but,  in  con- 
nection therewith,  must  also  consider  the  po^  ' 
tion  of  the  prayer  conceded  to  be  correct,  ai 
well  as  the  other  granted  prayers  in  the  aae,  is 
respect  to  the  evidence  offered.  , 

3.  Tbiai.  «=»295f8)— Instbuction. 

In  an  action  for  injuries  to  plaintiff  in  en-  i 

tering  defendants'  store  through  a  revolving  door, 
plaintiff's  requested   instruction   told   the  jorr  | 

that,  when  the  j)roprietor  of  a  store  expressly  or 
by  implication  invites  others  to  oome  upon  hit  { 

premises  for  business  or  other  purposes,  it  is 
bis  duty  to  be  reasooably  sure  be  is  not  inviting  I 

tbem  into  danger,  and  he  must  exercise  ordinary 
care  to   render   tbe   premises   reasonably  safe;  | 

tbat,  where  the  owner  of  a  store  expressly  or  by 
implication  invites  others  to  come  into  it,  u 
he  permits  anything  of  a  dangerous  character  to 
exist  therein  which  results  in  injury  to  another 
exercising  ordinary  care,  the  owner  is  answerable 
for  the  consequences.  Held  that,  though  the  lat- 
ter part  of  the  prayer  ignored  the  necessity  of 
finding  negligence  on  defendants'  part,  the  neces- 
sity for  a  finding  of  negligence  was  sufficiently 
shown  by  the  prayer  as  a  whole,  particularly  in 
view  of  an  instruction  contained  in  defendants' 
prayer  that  plaintiff  was  not  entitled  to  recover 
unless  the  jury  was  satisfied  that  defendants 
failed  to  exercise  due  care  to  provide  a  reason- 
ably safe  door. 

4.  NBOuaENOB  «s»119(4)— IssOKB  Airn  PM«r 
—Cause  of  Injcbt. 

In  an  action  for  injuries  to  plaintiff  in  en- 
tering defendants'  store  throu^  a  revolving 
door,  where  the  negligence  charged  was  that 
defendants  failed  to  maintain  the  door  in  a  rea- 
sonably safe  condition,  testimony  offered  by  de- 
fendants that  there  were  no  revolving  doors  in 
general  use  so  constructed  that  a  person  using 
them  could  not  be  knocked  off  his  feet  by  an- 
other coming  behind  him  and  pushing  with  vio- 
lence was  properly  excluded  as  foreign  to  the 
issue. 

Appeal  from  Superior  Court  of  Baltimore 
City ;  Chas.  W.  Heuisler,  Judge. 

Action  by  Mary  D.  Cecil  against  Max 
Hochschild  and  others,  c<q)artners  trading  as 
Hochschild,  Kohn  &  Co.  From  a  Judgment 
for  plaintiff,  defendants  appeal.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE. 
BURKE,  THOMAS,  PATTISON,  T3RNER, 
and  CONSTABLE!,  JJ. 


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HOCHSCHILD  v.  CECIL 


701 


tVUIlam  I<.  Marbnry,  of  Baltimore  (Mar- 
bury,  Oosnell  &  Williams,  of  Baltimore,  ou 
the  brief),  for  appellants.  I*  Wethered  Bar- 
roll,  of  Baltimore  (Hope  H.  Barrel!  and  Robt 
J.  Gill,  both  of  Baltimore,  on  the  brief),  for 
appellee. 

PATTISON,  J.  This  Is  an  appeal  fl-om  a 
Judgment  recovered  by  the  appellee  against 
the  appellants  for  injuries  sustained  by  her 
In  entering  the  storehouse  and  premises  of 
the  defendants  through  a  revolving  door. 

The  action  in  this  case  was  brought  upon 
a  declaration  containing  two  counts.  The  al- 
leged negligence  charged  against  the  defend- 
ants In  the  first  count  causing  the  injury 
complained  of  is  that  they  neglected  to  dis- 
charge and  perform  the  duty  of  providing 
for  the  safety  of  their  customers  "by  having 
proi>er  friction  strips  attached  to  said  door, 
which  strips  were  not  properly  attached,  but 
the  said  strips  had  been  worn,  so  that  the 
door  revolved  with  a  dangerous  ease  and 
rapidity,  with  which  It  should  not  have  re- 
volved," and  in  the  second  count  they  are 
charged  with  the  failure  "to  exercise  or- 
dinary and  reasonable  care  In  the  control  of 
the  operation  and  movement  of  the  said 
door." 

The  plaintiff,  a  woman  68  years  of  age^  In 
stating  the  droumstances  of  the  accident, 
which  occurred  on  December  4,  191B,  said: 

'^  went  to  Bochschild'a  [the  defendant]  upon 
the  Howard  street  side,  entering  the  first  door. 
As  I  went  in,  the  door  was  apparently  moving 
vary  slowly,  and  I  went  In  my  usual  way.  I  am 
always  cautious,  was  always  cautions,  of  tho«o 
doors,  and  before  I  escaped  the  door  there  was 
«  sudden  blow,  some  one,  or  there  came  .i  sud- 
den blow  that  threw  me  on  the  floor,  struck  me 
on  my  right  arm  and  side,  and  threw  me  on  my 
left  side  on  the  floor.  It  came  so  suddenly  that 
I  did  not  realize  for  an  instant  what  had  hap- 
pened, and  after  a  moment,  of  course,  they  came 
to  me  and  helped  me  up." 

She  further  testified  that  It  was  the  door 
that  struck  her;  that  she  "felt  the  blow  very 
decidedly";  that  partitions  In  the  door  were 
of  glass,  and  she  saw  no  one  In  front  of  her 
at  the  time  passing  through  the  door;  what- 
ever motion  there  was  came  from  behind  and 
■he  failed  to  see  it;  that  she  saw  a  colored 
man  standing  between  the  doors,  that  Is,  be- 
tween the  two  revolving  doors,  one  of  which 
she  entered;  sbe  could  not  say  whether  the 
man  touched  the  door  or  not,  but  he  did  not 
stop  It,  or  it  would  not  have  struck  her; 
that  she  was  a  regular  customer  at  the  store, 
and  was  acquainted  with  the  premises  and 
the  door  through  which  she  passed ;  she  had 
gone  through  it  many  times.  As  to  this  par- 
ticular door  she  said: 

"Somehow  I  always  felt  it  was  more  danjrcr- 
ous.  I  do  not  know  why,  bnt  (t  always  seemed  to 
me  to  be  more  dangerous  than  the  others." 

Sbe  said: 

"I  did  not  stop  in  the  door.  I  did  not  go  very 
fast,  because  I  never  do  rush  in  those  doors,  but 
I  went  my  ordinary  gait." 


When  asked  how  she  was  thrown  to  the 
fioor,  she  answered: 

"1  was  thrown  on  my  left  side.  It  struck 
me  on  my  right  shoulder  and  side,  and  my  left 
side  and  hip  sustained  the  injury,  the  fractured 
break." 

There  were  no  other  witnesses  offered  by 
the  plaintiff  as  to  the  circumstances  of  the 
happening  of  the  accident 

Joseph  L^  Downes,  general  agent  of  the 
Northwestern  Life  Insurance  Company,  and 
brother  of  the  plaintiff,  testified  that  he  ex- 
amined the  door  some  time  between  the  10th 
and  15th  of  December,  and  "found  the  rub- 
bers on  the  sides'  that  held  the  door  in  very 
bad  shape,"  and  the  door,  if  you  went 
through  It  at  any  ordinary  speed,  "would  go 
around  four  or  five  times";  by  giving  the 
door  "an  ordinary  push  it  would  keep  going 
around,  unless  somebody  else  went  in  there 
or  the  man  caught  it";  that  the  strips  were 
placed  on  what  he  "would  call  the  back  of 
the  arms" ;  that  they  were  worn  out  and  did 
not  have  the  effect  of  retarding  the  speed  of 
the  door  la  revolving;  "they  barely  touched" 
the  well  of  the  door.  He  testified  that  the 
door  in  which  the  accident  occurred  differed 
from  the  other  door  on  Howard  street  In  that 
it  had  a  solid  top;  that  he  did  not  know 
whether  this  caused  the  door  to  go  fast  or 
not;  that  he  examined  other  revolving  doors 
In  other  department  stores  In  the  neighbor- 
hood, and  also  one  at  the  Calvert  Bank. 
"Those  doors  did  not  go  anything  like  as 
fast  as  the  door  In  which  the  plaintiff  was 
injured,  nor  did  the  other  door  on  Howard 
street  In  the  same  building." 

John  H.  Driver,  engaged  in  the  business 
of  supplying  spedolties'  to  buildings,  testi- 
fied that  he  was  familiar  with  revolving 
doors;  that  the  door  In  question  "is  what  is 
known  as  the  Van  Kannel  door,  which  is  the 
pioneer  revolving  door."  He  described  such 
door  by  saying  that,  "If  you  can  imagine  a 
table  with  one  leg  and  fastened  to  the  leg 
four  flaps  or  wings;  this  table  Instead  of 
being  fastened  at  the  top,  and  supported  at 
the  top,  it  runs'  on  an  axle  at  the  top,  sup- 
ported at  the  bottom;  it  works  more  like  a 
top  then  anything  I  can  compare  It  to."  He 
stated  that,  "the  speed  of  the  door  Is  gov- 
erned by  the  friction  of  the  strips,  not  weath- 
er strips,  but  side  flaps  that  project  and  en- 
gage the  well  or  opening  which  the  door  is 
in,  BO  that  the  door  cannot  run  away" ;  that 
there  is  nothing  about  the  door  to  prevent  it 
from  running  away  except  the  side  flaps  that 
brush  the  well;  that  they  curve  as  they  go 
around,  although  they  are  apparently 
straight;  that  they  act  as  a  brake;  that  two 
of  them  at  all  times  brush  against  the  side 
of  the  well;  that  they  are  made  of  hard  rub- 
ber and  "should  at  least  rub  from  a  (juarter 
to  a  half  inch  on  this  surface."  Witness 
further  said  that  a  door  used  so  much  as  the 
one  in  question  should  be  inspected  not  less 
than  once  a  week,  and  the  "adjusting  of  the 


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strips  possibly  once  a  month,  and  new  strips 
not  less  than  once  a  year,  because  weather 
conditions  hurt  a  strip.  In  the  summer  time 
It  dries  up."  Witness  then  told  how  to  ad- 
Just  or  remoye  the  strips,  and  stated  that 
when  properly  adjusted  "the  door  will  open, 
and  possibly  one  flap  will  moTe  about  one- 
third  of  the  circumference  of  the  door." 
When  the  pressure  Is  removed,,  "the  door 
will  come  back  to  a  standstill  within  about 
six  Inches,"  and  where  the  strips  are  proper- 
ly adjusted  the  door  is  considered  fairly  safe. 

James  B.  Scott,  consulting  engineer,  when 
produced  by  the  plaintiff,  testified  that  the 
rubber  strip  has  two  or  three  functions;  first 
of  all  it  performs  the  function  of  a  weather 
atrip,  and  In  addition  to  that  it  retards  the 
revolution  of  the  door  "so  the  speed  will 
not  become  excessive  without  an  abnormal 
amount  of  power  being  exerted  on  the  door"; 
that  it  also  performs  the  function  of  a  llexible 
edge,  so  if  a  person  should  Inadvertently  get 
his  fingers  caught  between  the  well  of  one 
of  the  strips  "they  would  meet  the  yielding 
surface  of  the  rubber  instead  of  being  shear- 
ed off  as  they  would  be  if  the  doors  were 
rigid  at  the  edge."  He  further  stated,  how- 
ever, If  the  rubber  strip  was  not  used,  "it 
would  be  necessary  from  a  point  of  safety  to 
adc^t  some  other  device  to  dampen  the  rev- 
olution of  the  door,"  but  the  use  of  these 
strips  la  "the  simplest  and  most  commou 
sense  way  to  accomplish  the  object,"  and 
that  they  also  accomplish  "two  or  three  other 
objects  at  the  same  time."  Witness,  in  speak- 
ing of  the  Van  Kannel  door,  said  It  is  what 
you  might  call  an  obsolete  type  of  door ;  "you 
might  say  it  was  one  of  the  original  doors, 
the  pioneer  door;"  that  it  differs  from  the 
modem  door  In  that  the  latter  has  "a  sta- 
tionary celling,"  and  a  rubber  strip  at  the 
top  and  bottom  which  furnishes  additional 
friction,  although  the  main  point  where  the 
friction  is  applied  Is  at  the  circumference  of 
the  door.  The  principal  advantage,  however. 
In  the  modem  door  over  the  other  "is  that 
It  eliminates  this  big  flywheel  top,"  which  in 
the  former  type  revolved  with  the  door,  and 
gives  to  Its  movement  a  greater  momentum. 

There  were  other  witnesses  produced  by 
the  plaintiff  who  testified  as  to  the  character 
and  extent  of  the  Injuries  sustained  by  her, 
but  It  Is  not  necessary  to  state  the  evidence 
of  these  witnesses  In  deciding  the  questions  of 
law  presented  by  this  appeal. 

Walter  Sondheim,  the  general  manager  of 
the  defendant  firm,  offered  by  the  defendants, 
testified  that  he  did  not  know  of  any  differ- 
ence between  the  movement  of  the  old  and 
new  typ.e  of  doors,  but  was  inclined  to  think 
that  the  old  type  was  more  dlfilcult  to  revolve 
than  the  new  type.  It  revolved  less  fredy 
than  the  new,  and  required  a  little  more  ef- 
fort to  push  it  around.  The  strips,  as  he 
stated,  were  put  there  for  two  reasons,  one 
to  keep  out  the  dust  and  draught,  and  the 
other  to  protect  the  fingers  of  persons  In  tak- 


ing hold  of  the  edge  of  the  door;  that  the 
strips  were  not  there  for  the  purpose  in  any 
way  of  affecting  the  speed  In  the  operation  of 
the  door;  he  did  not  know  how  often  the 
rubber  strips  had  been  removed  and  new  ones 
put  on;  that  the  doors  were  actually  used 
eight  months  in  the  year,  and  in  his  opinion 
the  table  at  the  top  of  the  door  tends  to  re- 
tard Its  motion. 

Dent  Downing,  "housekeeper"  at  defend- 
ants, who  had  charge  of  the  doors,  when  call- 
ed by  the  defendants,  testified  that  he  makes 
a  general  inspection  of  the  store  several  times 
a  day,  sees  that  the  doors  are  clean,  that  they 
revolve  properly,  and  are  in  proper  mechani- 
cal condition ;  that  be  was  familiar  with  the 
door  where  the  accident  occurred.  There  Is 
no  difference,  he  states,  between  the  old  and 
new  type  of  doors  so  far  as  the  speed  and 
operation  by  the  public  is  concerned.  There 
is  upon  the  doors  two  brass  bars,  with  sufll- 
cient  space  between  the  bars  and  the  glass 
for  a  handhold,  which  is  to  enable  the  pas- 
senger to  go  through  in  safety.  lie  did  not 
know  when  these  strips  were  replaced  ptux 
to  the  4tb  day  of  December,  1916,  but  was 
sure  they  had  been  replaced  within  two 
years;  that  they  were  not  replaced  on  ac- 
count of  the  rubber  wearing  out,  bat  because 
of  people  tearing  some  parts  of  them  away 
and  making  them  look  ragged  and  ugly.  This 
was  done  on  an  average  about  once  a  year. 
He  never  removed  the  rubber  strips  and  re- 
placed them  "with  reference  to  their  causing 
more  or  less  friction  on  the  doors."  They 
had  extended  the  rubbers  to  keep  out  the 
air,  and  at  the  same  time  it  increases  the 
friction,  but  they  were  never  ext«ided  for 
the  primary  purpose  of  increasing  the  fric- 
tion.   That  had  never  entered  his  mind. 

George  W.  Morey,  chief  engineer  at  the 
store  of  the  defendants,  when  offered  as  a  wit- 
ness by  them,  stated  "that  the  door  In  ques- 
tion moved  as  hard,  tf  not  a  little  harder, 
than  the  other  doors;  that  they  considered  It 
in  a  good  condition  on  December  4,  1915;  the 
strips  touched  the  walls  of  the  door  opening 
suSlclently  to  keep  out  the  air." 

Mrs.  Louise  Robinson,  an  employe  of  the 
firm  of  Hochschlld,  Kohn  &  Co.,  and  who  was 
In  the  store  at  the  time  of  the  accident,  testi- 
fied for  the  defendants,  saying: 

"I  saw  a  frail,  elderly  lady  walking  slowly 
through  the  door.  Apparently  she  hesitated  a 
moment,  then  a  customer  came  to  my  counter, 
and  I  turned  to  the  customer.  Just  as  quickly 
the  lady  fell,  and  I  excused  myself  and  went  to 
her  assiiitnnre.  When  she  hesitated  she  was 
just  inside  the  door  just  as  she  had  passed 
through  it." 

The  record  discloses  that  there  were  seven 
exceptions  noted  by  the  defendants  to  the  rul- 
ings of  the  court  on  the  evidence  and  one  to 
its  rulings  on  the  prayers. 

The  plaintiff  offered  four  prayers.  The 
first  and  second  were  refused,  and  third  and 
fourth  were  granted. 

The  defendants  offered  five  prayers.     The 


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STATE  V.  SHAPIRO 


70S 


first  and  flftb  were  refused.  The  second, 
third,  and  fourth  were  granted. 
The  defendants'  first  prayer  is  as  follows: 
"No  evidence  has  been  introduced  in  this  case 
legally  sufficient  to  entitle  the  jury  to  find  that 
the  injuries  to  the  plaintitf  complained  of  in 
the  declaration  were  caused  directly  by  the  vio- 
ladon  or  neglect  on  the  part  of  the  defendants 
of  any  legal  duty  restinp  upon  them,  as  alleged 
in  the  declaration,  and  therefore  the  verdict  of 
the  jur^  should  be  for  the  defendants  upon  the 
issues  joined." 

[1]  This  prayer,  as  we  have  said,  was  re- 
fused, and,  we  think,  properly  refused,  as  the 
evidence.  In  onr  opinion,  is  legally  sufficient 
to  taKe  the  case  to  the  jury. 

In  Norton  v.  Chandler  Co.,  Inc.,  221  Mass. 
99,  108  N.  E.  897,  the  facts  offered  to  the 
Jury  were  very  nearly  the  same  as  those 
presented  In  this  case,  and  in  that  case  the 
court  held  that: 

Such  facts  "warranted  the  finding  of  negli- 
gence on  the  part  of  the  defendant:  First,  in 
not  inspecting  the  friction  strips ;  and,  secondly, 
in  allowing  the  door  to  fall  into  a  defective  con- 
dition through  failure  to  adjust  the  friction 
strips  on  their  being  worn  down." 

And  we  find  no  error  in  the  rejection  of  the 
defendant's  fifth  prayer. 

The  case  was  submitted  to  the  jury  upon 
the  plalntlfiTs  third  and  fourth  and  the  de- 
fendants' second,  third,  and  fourth  prayers. 

The  plalntifTs  third  prayer  instructed  the 
Jniy: 

"That  when  the  propiietor  or  owner  of  a  store 
used  for  the  selling  merchandise,  expressly  or 
by  implication  invites  others  to  come  upon  bis 
premises,  either  for  business  or  for  any  other 
purpose,  it  is  his  duty  to  be  reasonably  sure 
that  he  is  not  invitinj?  them  into  danger,  and  to 
that  end  he  must  exercise  ordinary  care  and 
prudence  to  render  the  premises  reasonably  safe 
for  the  visit.  Where  the  owner  or  proprietor  of 
a  trtore  expressly  or  by  implication  invites  oth- 
ers to  come  into  the  store,  if  he  permits  any- 
thing of  a  dangerous  character  to  exist  therein 
whidi  results  in  injury  to  one  availing  herself  of 
tiie  invitation,  and  who  at  the  same  time  is  ex- 
erdsing  ordinary  care,  such  owner  or  proprietor 
!•  answerable  for  the  consequence." 

[2]  In  determining  the  correctneaa  of  this 
prayer  we  must  not  only  consider  the  part  to 
which  objection  is  made,  bat  in  connectl<Hi 
with  it  we  must  also  consider  the  conceded 
portion  of  the  prayer  as  well  as  the  other 
granted  prayers  In  the  case  in  respect  to  the 
evidence  offered. 

[3]  Itmlgbtbesaidof  the  part  of  the  prayer 
objected  to,  if  standing  alone,  that  it  ig- 
nores the  necessity  of  finding  negligence  on 
the  jmrt  of  the  defendants,  and  permits  the 
plaintiff  to  recover,  though  such  negligence 
be  not  shown,  but  the  necessity  for  such 
finding  we  think  is  sufficiently  shown  by  the 
prayer  as  a  whole,  when  the  part  objected  to 
is  considered  in  connection  with  the  earlier 
part  of  the  prayer;  and  we  think  the  neces- 
sity for  so  finding  would  be  so  understood  by 
the  Jury.  That  such  was  the  meaning  of  the 
prayer  is  further  shown  by  the  instruction  of 


the  court  contained  in  the  defendants'  tliird 
prayer,  where  the  Jury  were  instructed  that: 
The  plaintiff  was  "not  entitled  to  recover  in 
this  case  until  they  are  satisfied  from  the  evi- 
dence that  the  defendants  Hochschild,  Kohn  & 
Co.  failed  to  exerdse  due  care  to  provide  for 
the  use  of  their  customers  a  revolving  door  in 
such  condition  at  the  time  of  the  accident  that 
it  conld  be  used  with  reasonable  safety  by  per- 
sons using  reasonable  care." 

The  prayer  states  that  liability  attached  to 
the  defendant  "if  he  permits  anything  of  a 
dangerous  character  to  exist  therein  which 
results  In  Injury  to  one  availing  herself  of  the 
invitation,"  etc.,  but  it  is  shown  by  the  rec- 
ord that  the  evidence  of  negligence  is  confined 
solely  to  the  defective  door.  No  other  thing 
of  a  dangerous  character  was  mentioned  or 
referred  to.  Qi!herefore  it  was  only  to  the 
defective  door  tliat  the  minds  of  the  Jurors 
could  have  been  directed. 

The  plaintiff's  fourth  prayer  was  the  nsual 
damage  prayer  In  cases  of  this  character  and 
was  properly  granted. 

[4]  The  court's  ruling  upon  the  first  excep- 
tion to  the  evidence  was  correct,  as  the  ex- 
ception came  too  late,  and  we  find  no  error 
in  its  ruling  on  the  second  exception.  The 
third,  fourth,  fifth,  and  sixth  were  to  the  re- 
fusal of  the  court  to  admit  testimony  offered 
by  the  defendants  that  there  were  no  revolv- 
ing doors  in  general  use  so  constructed  that 
a  person  using  it  could  not  be  knocked  off 
his  feet  by  another  coming  behind  him  and 
pushing  with  violence  against  one  of  the  par- 
titions of  the  door.  The  negligence  charged 
against  the  defendants  was  that  they  negli- 
gently failed  to  maintain  the  door  in  a  rea- 
sonably safe  condition  for  the  use  of  their 
customers,  exercising  reasonable  care.  There 
was  no  evidence  whatever  that  the  fall  of  the 
plaintiff  resulting  in  the  Injury  complained  of 
was  caused  by  any  one  passing  tlirough  the 
door  behind  her  and  pushing  one  of  the  parti- 
tions of  the  door,  and  we  fail  to  see  how  the 
fact  sought  to  be  proved  under  these  excep- 
tions could  in  any  way  properly  aid  in  decid- 
ing the  issues  presented,  but  such  fact,  we 
think,  would  be  entirely  foreign  to  the  issue, 
and  one  that  should  not  have  been  admitted ; 
consequently  the  court  was  right,  in  our  opin- 
ion. In  excluding  this  testimony. 

As  we  find  no  errors  committed  by  the  court 
in  its  rulings,  the  Judgment  below  will  be 
affirmed. 

Judgment  affirmed,  with  costs  to  the  ap- 
pellee. 


STATE  T.  SHAPIRO. 


031  Ud.  168) 
(No.  37.) 


(Court  of  Appeals  of  Maryland.    June  27, 1917.) 

1.  Licenses  ®=»7(7)  —  Arbitbart  akd  Uk- 
BQUAL  Tax— "Occupation  Tax." 
Laws  1916,  c.  704,  §  172,  requiring  junk 
dealers  lo  take  out  an  annual  license,  is  not  in 
violation  of  Bill  of  Rights,  art.  15,  providing 
that  every  person  ought  to  contribute  his  pro- 
portion of  public  taxes  according  to  his  actual 


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704 


101  ATLAXXIC  REPORTER 


(Md. 


worth  in  property;  it  being  a  tax  upon  an  occu' 
pation. 

[FM.  Note.— For  otlier  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Occapa- 

tion  Tax.] 

2.  Constitutional  Law  ®=>226(1),  25*— Due 
Pbocess  of  XiAw— Equal  Pbotection  of  thb 
Law. 

The  Legislature  has  the  right  to  make  sepa- 
rate and  different  provisions  for  distinct  classes 
and  areas  in  the  enactment  of  its  license  laws, 
and  the  exercise  of  such  power  does  not  conflict 
with  the  constitutional  rights  to  the  equal  pro- 
tection of  the  laws,  or  to  due  process  of  law, 
if  the  regulations  operate  equal!;,  and  the  limi- 
tations are  not  clearly  unreasonable. 

3.  LlCKNSES  €=3T(5)--JUNK  DzAt.EB'a  LlOKNBB 

— Reasonabueness— Pbesumption. 
Laws  1916,  c.  704,  ^  172,  basing  license  fees 
for  the  pri\-ilege  of  dealing  in  junk  upon  popula- 
tion of  the  city  or  county  where  conducted,  is 
based  upon  an  accepted  theory  of  classification, 
and  will  be  presumed  to  be  reasonable,  in  the  ab- 
sence of  conclusive  proof  to  the  contrary. 

4.  Licenses  €=>7(9)— Junk  Deaixb'b  Licbnsx 
— Fees — Reasonableness. 

Laws  1016,  c.  704,  §  172,  is  a  revenue  meas- 
ure not  purporting  to  have  any  relation  to  the 
police  power ;  and  where  there  is  no  evidence 
that  fees  imposed  upon  junk  dealers  are  exces- 
sive, they  will  be  presumed  to  be  fair  and  rea- 
sonable. 

6.  EviDE\<K  <&=>20(1)— Statutes  <S=>47— Un- 
CEBTAiNTY— "Junk  Dealbb." 

Laws  1916,  c.  704,  g  17^  imposing  a  license 
tax  upon  junk  dealers,  is  not  void  for  uncertain- 
ty, although  the  term  "junk  dealer"  is  not  defin- 
ed, as  the  nature  of  the  business  is  commonly 
known,  and  may  be  judicially  noticed;  a  "junk 
dealer"  being  a  person  engaged  in  buying  and 
selling  old  iron  or  other  metals,  glass,  paper, 
cordage,  or  other  waste  or  discarded  material 
<citing  Words  and  Phrases,  Junk). 

Appeal  from  Criminal  Court  of  Baltimore 
City ;  James  P.  Gorter,  Judge. 

"To  be  officially  reported." 

Jacob  8.  Shapiro  was  Indicted  for  dealing 
in  Junk  without  flrst  having  obtained  a  li- 
cense. From  a  judgment  discharging  defend- 
ant, after  his  demurrer  to  the  Indictment  had 
been  sustained,  the  State  appeals.  Reversed, 
with  costs,  and  new  trial  awarded. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  URN- 
ER,  and  STOOKBRIDtiE  JX 

Philip  B.  Perlman,  of  Baltimore,  and  Al- 
bert C.  Ritchie,  Atty.  Gen.  (William  F.  Broen- 
ing,  State's  Atty.,  Lindsay  C.  Spencer,  Asst. 
State's  Atty.,  both  of  Baltimore,  on  the  brief), 
for  the  State.  Henry  M.  Slegel,  of  Balti- 
more (Siegel  &  Slegel,  of  Baltimore,  on  the 
brief),  for  appellee. 

URNER,  J.  The  indictment  in  this  case 
charges  the  defendant  with  unlawfully  deal- 
ing in  Juuk  In  Baltimore  City  without  flrst 
Caking  out  a  license  therefor  as  required  by 
law.  The  statute  alleged  to  be  violated  is  the 
Act  of  1016  (chapter  704,  {  172),  which,  under 
the  caption,  "Junk  Dealers,"  provides  as  fol- 
lows: 

"Each  person,  firm  or  corporation  dealing  in 
iunk  within  this  state  shall  pay  for  the  privilege 
of  conducting  such  business  by  first  taking  out 


an  annual  license  therefor,  for  ntcfa  plape  of 
business  and  paying  the  following  license  fee, 
namely:  In  cities  or  counties  of  50,000  inhabi- 
tants or  over,  each,  per  annum,  $30.00;  in  cities 
or  counties  of  10,000  to  50,000  inhabitants,  each, 
per  annum,  $20.00 ;  in  cities  or  counties  of  5,000 
to  10,000  inhabitants,  each,  per  annum,  $10.00: 
in  Baltimore  City,  $250.00? 

By  a  later  section  of  the  act  a  fine  of  $100 
is  directed  to  be  imposed  for  the  failure  of 
one  engag^ed  in  the  business  to  procure  the 
requisite  license. 

A  demurrer  to  the  Indictment  disputes  tbe 
validity  of  the  statute  on  the  following 
grounds:  (1)  That  it  violates  the  Fourteentli 
Amendment  of  the  federal  Constitution,  by 
attempting  an  exercise  of  taxing  power  which 
unjustly,  arbitrarily,  and  unreasonably  dis- 
criminates against  the  defendant  and  all  oth- 
ers similarly  engaged  in  business  In  Balti- 
more City  and  in  favor  of  other  persons  lo- 
cated elsewhere  In  the  state,  and  which  de- 
prives the  defendant  and  others  in  like  sit- 
uation of  their  liberty,  property,  and  busi- 
ness without  due  process  of  law,  and  denies 
them  also  the  equal  protection  of  the  law. 
(2)  That  the  act  violates  the  Constitution  of 
Maryland  for  the  reasons  just  stated,  and  al- 
so because  the  license  required  to  be  obtained 
by  the  defendant  for  his  business  In  Balti- 
more City  is  an  arbitrary  and  unequal  tax 
imposed  contrary  to  the  fifteenth  article  of 
the  Bill  of  Rights,  and  is  not  a  lawful  exer- 
cise of  the  police  power.  (3)  That  the  license 
fee  attempted  to  be  levied  upon  the  defend- 
ant is  an  abuse  of  the  police  power  of  the 
state,  in  that  It  is  manifestly  in  excess  of 
any  legitimate  charge  for  supervision  or  reg- 
ulation of  the  business  tn  which  the  defend- 
ant is  engaged.  (4)  That  there  is  no  defini- 
tion of  the  term  "junk  dealer"  in  the  act, 
and  no  fixed  or  certain  popular  meaning  of 
the  term,  and  hence  the  act  is  void  for  un- 
certainty. 

The  appeal  is  by  the  state,  and  is  from  a 
judgment  discharging  the  defendant,  after 
his  demurrer  to  tbe  indictment  had  been  sus- 
tained. 

[1]  Tbe  license  fee  required  by  the  act  of 
1916  to  t>e  paid  by  a  dealer  in  Junk  "for  the 
privilege  of  conducting  such  business"  is  a 
tax  imposed  upon  an  occupation.  It  Is  not 
a  property  tax  to  which  the  equality  provi- 
slon  of  article  15  of  the  Bill  of  Rlgbta  ai>- 
piles.  It  belongs  to  the  class  of  taxes  whlcb 
that  article  i)ermlts  to  be  "laid  with  a  politi- 
cal view  for  the  good  government  and  bene- 
fit of  the  community."  Ruggles  v.  State,  120 
Md.  662,  87  AU.  1080;  State  v.  Applegartta, 
81  Md.  300,  31  Atl.  901,  28  Ll  R.  A.  812; 
Rohr  T.  Gray,  80  Md.  276,  30  Atl.  632. 

[2]  The  Legislature  is  under  no  constitu- 
tional obligation,  either  federal  or  state,  to 
observe  a  definite  rule  of  uniformity  in  the 
enactment  of  its  license  laws.  It  is  not  re- 
quired to  establish  the  same  license  system 
and  regulations  for  all  the  interests  and  po- 
litical divisions  over  which  its  authority  ex- 


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705 


tends.  It  has  the  right  to  make  separate  and 
different  provisions  for  distinct  classes  and 
areas.  The  exercise  of  snch  imwer  does  not 
conflict  with  the  constitutional  right  to  the 
equal  protection  of  the  laws,  or  to  due  pro- 
cess of  law,  it  the  prescribed  regulations  op- 
erate equally  and  uniformly  upon  the  class 
and  within  the  area  affected,  and  their  limi- 
tations are  not  clearly  unreasonable.  These 
principles  have  been  firmly  settled  by  the  de- 
cisions. Ikfagoun  T.  Illinois  Trust  Co.,  ITO  U. 
S.  283,  18  Sup.  Ct  594,  42  L.  Ed.  1037; 
Budd  V.  New  York,  143  U.  S.  617, 12  Sup.  Ct 
468,  36  L.  Ed.  247;  BarUer  y.  Connolly,  U3 
U.  S.  27,  5  Sup.  Ct  357,  28  K  Ed.  923 ;  Hol- 
den  V.  Hardy,  169  D.  S.  395,  18  Sup.  Ct  383, 
42  L.  Ed.  780;  German  Alliance  Ins.  Oo.  v. 
Hale,  219  D.  S.  307,  31  Sup.  Ct  246,  55  Ia 
Ed.  229;  Bowman  v.  Lewis,  101  U.  S.  22, 
25  L.  Ed.  989;  L'Hote  v.  New  Orleans,  177 
U.  S.  687,  20  Sup.  Ct  788,  44  L,  Ed.  899; 
Bleld  ▼.  Barber  Asphalt  Co.,  194  U.  S. 
618,  24  Sup.  Ct  784,  48  L.  Ed.  1142;  Xtan- 
can  y.  Missouri,  152  U.  S.  377,  14  Sup.  Ct 
570,  38  L.  Ed.  485;  Amer.  Coal  Co.  y.  AUe- 
sany  Co.,  128  Md.  664,  98  Atl.  143;  Mt  Ver- 
non Go.  y.  Frankfort  Co.,  Ill  Md.  561,  76 
Atl.  106, 134  Am.  St  Bep.  636 ;  Clark  y.  Har- 
ford Agr.  Ass'u,  118  Md.  608,  85  AtL  603; 
CrlsweU  y.  State,  126  Md.  103,  94  AtL  549; 
Sweden  v.  State,  122  Md.  634,  90  Atl.  180; 
State  y.  Broadbelt,  89  Md.  565,  43  AU.  771, 
45  U  R.  A.  433,  73  Am.  St  Rep.  201;  Bug- 
gies y.  State,  120  Md.  661,  87  AtL  1080. 

[3]  The  statute  here  in  question  provides 
different  rates  of  license  fees  for  the  privi- 
lege of  dealing  in  Junk,  according  to  the  pop- 
ulation of  the  county  or  dty  where  the  busi- 
ness is  being  conducted.  In  Baltimore  City, 
In  which  approximately  one-half  of  the  tn- 
babltants  of  the  state  reside,  the  rate  is  $250, 
while  it  ranges  from  $10  to  $30  in  the  coun- 
ties and  other  cities  with  their  much  smaller 
popnlatlons.  There  is  nothing  In  the  terms 
of  the  act,  or  in  the  record,  to  reflect  upon 
the  propriety  of  such  a  provision.  It  is  in 
fiict  based  upon  an  accepted  theory  of  classi- 
fication for  license  purposes.  Commonwealth 
y.  Danzlger,  176  Mass.  290,  57  N.  E.  461; 
Douglas  v.  People,  225  IlL  536,  80  N.  E.  341, 
8  I<.  R.  A.  (N.  S.)  1116,  116  Am.  St  Bep.  162. 
It  must  be  presumed  to  be  reasonable,  in  the 
absence  of  clear  and  conclusive  indications 
to  the  contrary.  Bachtel  v.  Wilson,  204  U. 
S.  86,  27  Sup.  Ct  243,  61  L.  £)d.  357 ;  Holden 
V.  Hardy,  supra;  Mt  Vernon  Co.  v.  Frank- 
port  Co.,  supra;  Ruggles  v.  iState,  supra. 
Provision  might  have  been  made  by  inde- 
pendent local  laws  for  the  licensing  of  Junk 
dealers  in  one  or  more  of  the  political  subdi- 
visions of  the  state.  Ttio  courts  would  not  be 
Justified  in  declaring  such  statutes  invalid 
merely  because  they  were  of  local  application 
or  divergent  in  their  terms.  If  this  were  a 
proper  ground  upon  which  to  defeat  an  act  of 
assembly,  the  validity  of  much  important  lo- 
cal legislation  might  be  successfully  disputed. 
101  A.— 46 


As  this  court  had  occasion  to  say  In  Stevens 
v.  State,  89  Md.  674,  43  Atl.  931: 

"It  has  long  been  the  policy  of  the  state  of 
Maryland  to  enact  local  laws  affecting  only  cer- 
tain counties,  or  to  exempt  particular  counties 
or  localities  from  the  operation  of  general  laws." 

This  policy  is  not  prohibited  by  any  pro- 
vision of  the  Constitution  of  Maryland  or  of 
the  United  States.  The  fact,  therefore,  that 
the  statute  now  being  considered  does  not  af- 
fect alike  all  the  counties  and  cities  to  which 
it  applies,  is  not  a  sufficient  reason  for  de- 
claring it  invalid. 

[4]  The  contention  that  the  annual  fee  re- 
quired to  be  paid  by  Junk  dealers  in  Balti- 
more City  is  unreasonahle  and  excessive  rests 
largely  upon  the  theory  that  it  is  imposed  in 
the  effort  to  raise  revenue  under  the  guise  of 
an  exertion  of  the  police  power  of  the  state, 
and  that  the  amount  of  the  fee  is  far  beyond 
the  legitimate  costs  incident  to  the  regulation 
of  the  business.  It  is  also  urged  that  the 
law  is  unfair  and  arbitrary,  because  it  makes 
no  distinction  in  reference  to  the  volume  ot 
the  business  conducted  by  the  licensees.  The 
license  provision  under  inquiry  is  plainly  a 
revenue  measure.  It  Is  enacted  and  codified 
under  the  head  of  "Traders'  Licensee."  It 
does  not  purport  to  have  any  relation  to  the 
police  power,  although  in  determining  the 
amount  of  the  fees  to  be  paid  by  Junk  deal- 
ers the  Legislature  may  properly  have  taken 
into  consideration  the  fact  that  the  business 
Is  an  appropriate  object  of  police  supervision, 
especially  in  a  large  city,  because  of  the  op- 
portunities It  often  affords  for  the  disposi- 
tion of  stolen  property.  Duluth  y.  Bloom, 
65  Minn.  101,  56  N.  W.  580,  21  L.  B.  A.  689; 
PeoiAe  V.  Rosenthal,  197  N.  T.  304,  00  N.  E. 
991,  46  L.  R.  A.  (N.  S.)  31;  City  of  Chicago 
y.  LowenthaL  242  lU.  401,  90  N.  E.  287;  a^ 
of  Grand  Rapids  y.  Braudy,  105  Mich.  670, 
64  N.  W.  29,  32  L.  B.  A.  116,  66  Am.  St  Rep. 
472;  Marmet  y.  State,  45  OMo  St  63,  12  N. 
E.  463.  The  court  has  no  right  to  assume 
that  these  particular  license  charges  speclUed 
in  the  act  before  us  a^e  unreasonable  exac- 
tions. Then  is  no  evidence  in  the  record  up- 
on which  we  can  base  such  a  conclusion. 
Every  presumption  is  to  be  made  in  support 
of  the  theory  that  the  General  Assembly  has 
validly  and  properly  exercised  its  powers. 
It  was  possessed  of  full  constitutional  author- 
ity to  legislate  upon  the  subject  of  occupation 
taxes,  and  its  action  reflects  Its  Judgment  that 
the  fees  imposed  in  this  instance  are  fair  and 
reasonable.  Its  decision  of  that  question  will 
be  upheld  by  the  courts,  in  the  absence  of 
clear  and  convincing  proof  that  the  charges 
are  in  fact  exorbitant  and  oppressive.  Leser 
V.  Wagner,  120  Md.  677,  87  Atl.  1040.  The 
cases  of  Vansant  v.  Harlem  Stage  Co.,  59 
Md.  336,  and  State  v.  Rowe,  72  Md.  648,  20 
Atl.  179,  dted  by  the  appellee,  were  not  con- 
cerned with  the  validity  of  legislative  acts, 
but  with  questions  as  to  the  right  of  a  munici- 
pality to  raise  revenue  under  a  charter  power 
to  license  and  regulate.    This  distinction  was 


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706 


101  ATLAMTIO  REPORTEB 


(Md. 


noted  In  the  case  of  State  ▼.  Applegarth,  81 
Md.  300.  31  Atl.  961,  28  L.  R.  A.  812. 

[I]  There  Is  no  force  in  the  contention  that 
the  act  Is  void  as  to  the  requirement  of  a 
license  for  "Junk  dealers"  because  the  mean- 
ing of  that  term  Is  left  indefinite  and  uncer- 
tain. The  business  of  dealing  In  junk  Is  a 
distinct  and  recognized  branch  of  commercial 
enterprise.  Its  nature  and  incidents  are 
commonly  known  and  may  be  Judldally  no- 
ticed. A  Junk  dealer  Is  one  who  is  engaged 
In  the  business  of  buying  and  selling  junk, 
which  is  defined  to  be: 

"Old  iron,  or  other  metal,  glass,  paper,  cord- 
age, or  other  waste  or  discarded  material,  which 
may  be  treated  or  prepared  so  as  to  be  used 
again  in  some  form.^  Webster's  New  Interna- 
tional Dictionary:  Century  Dictionary:  4 
Words  &  Phrases,  3874;  Commonwealth  t.  Kin- 
gold,  182  Mass.  309,  65  N.  B.  374 :  City  of  Du- 
Inth  V.  Bloom,  56  Minn.  97,  66  N.  W.  680,  21  L. 
R.A.689. 

It  was  not  necessary  that  the  provision 
as  to  this  class  of  licenses  should  hare  more 
spedflcally  defined  the  business  to  which  It  Is 
Intended  to  apply. 

None  of  the  objections  urged  by  the  appel- 
lee against  the  validity  of  the  license  law 
under  whldi  he  is  Indicted  are  In  our  judg- 
ment sustainable,  and  we  must  accordingly 
bold  that  the  demurrer  should  have  been 
overruled. 

Judgment  reversed,  with  costs,  and  new 
trial  awarded. 

(in  Md.  21S) 

LANG  et  aL  t.  WILMBR.    (Na  83.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Husband  and  Wm  «s»14(2)— Tenants  bt 
Entibftt. 

If  realty  was  conveyed  by  a  third  person 
to  husband  and  wife  jointly,  the  habendum  of 
the  deed  indicating  that  the  survivor  should 
take,  husband  and  wife  held  the  property  as  ten- 
ants by  the  entireties. 

2.  Deeds  ®=>93— Intention  or  Gbantob. 

The  intention  of  the  grantor  of  a  deed  should 
prevail  unless  in  conflict  with  some  settled  rule 
of  law. 

8.  Executors  and  Aduinistkatobs  $=33&— 
Assets  of  Estate— Leasehold  Pbofebty. 

On  the  death  of  the  owner  of  leasehold  prop- 
erty, the  estate  devolves  upon  his  personal  rep- 
le&eutatives. 

4.  Judoment  <g=»S70(4)— Death  or  Judoment 
Debtob  —  Reviviho  Judgment  Against 
Land. 

Where  defendant  in  a  judgment  dies,  a  sciro 
facias  may  be  sued  out  to  revive  the  Judgment 
against  the  adminigtrator  alone  to  bind  the  as- 
sets in  his  bands;  but  where  it  is  desired  to 
revive  the  judgment  against  the  land  of  the 
deceased  judgment  debtor,  the  scire  facias  should 
also  issue  against  the  heirs  and  terre-tenants. 

5.  Judgment  <g=>870(4)— Revival  or  Judg- 
ment Against  Land — Party. 

The  estate  a  wife  acquired  under  a  deed 
from  her  husband  to  himself  and  her  was  not 
subject  to  the  lien  of  a  judgment  against  tho 
husband,  and  after  his  death  she  was  not,  as 
to  her  interest  in  the  land,  a  proper  ijarty  to 
scire  facias  to  revive  the  Judgment  against  tho 
land,  and  her  title  was  not  affected  by  judg- 
ment of  fiat. 


6.  Judgment  «S9870(1)— RsvivAir-DECEASED 
Judgment  Debtob  s  Next  of  Kin— De- 
scription or  Pbopebtt. 

Scire  facias  against  a  deceased  judgment 
debtor's  next  of  kin  as  terre-tenants  to  revive 
the  judgment  against  them  is  a  proceeding  in 
rem,  and  the  judgment  of  fiat  (Stained  is  not  a 
personal  judgment  against  them,  but  one  sub- 
jecting the  property  in  their  possession,  so  that 
the  proceedings  must  specifically  describe  the 
property. 

7.  Executors  and  Administkatobs  ®=>17(6> 
— Right  to  Appointmbnt^-Creditobs. 

By  Code  Pub.  Gen.  Laws  1904,  art.  93,  | 

30,  on  failure  of  those  first  entitled  to  adminis- 
tration to  apply  for  letters,  administration  may 
be  granted  by  the  orphans'  court  to  the  largest 
creditor  applying. 

8.  Limitation  of  Actions  9=>43,  83(2)— Stat- 
ute OF  LiMriATioNs— Judgments. 

The  statute  of  limitations  begins  to  run  as 
to  judgments  from  the  date  of  the  judgm«it,  and 
is  not  suspended  by  death  of  the  judgment  debt- 
or or  neglect  of  those  entitled  to  obtain  admin- 
istration. 

Appeal  from  Circuit  Court  of  Baltimore 
City;  H.  Arthur  Stump,  Judge. 

"To  be  officially  reported." 

Suit  by  Edwin  M.  Wilmer  against  Charles 
F.  Lang  and  others.  From  an  order  over- 
ruling their  demurrer,  Charles  F.  Long  and 
two  other  defendants  appeal.  Decree  revers- 
ed, and  bill  dismissed  as  to  appellants. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  URK- 
ER,  and  STOCKBRIDOE,  J  J. 

William  Li,  Stuckert,  of  Baltimore,  for 
appellanta  David  Asb,  of  Baltimore,  for  ap- 
pellee. 

THOMAS,  J.  The  bill  of  complaint  in  this 
case,  which  was  filed  by  the  appellee,  "in  his 
own  right  and  on  behalf  of  aU  creditors  of 
the  respective  defendants  who  may  come  la 
and  share  the  costs  of  this  cause,"  against 
the  appellants,  Charles  F.  Lang  and  Uenil- 
etta  y.  Lang,  bis  wife,  Albert  Lang,  August 
Lang,  and  the  Ninth  West  Colombia  Building 
Association  of  Baltimore  City,  alleges:  (1) 
That  the  appellee  obtained  a  judgment  by 
confession  against  Charles  Lang  for  the  sum 
of  4<69.97  and  costs,  with  Interest  from  May 

31,  1901,  w4ilch  was  duly  recorded  on  June  2, 
1901,  in  the  superior  court  of  Baltimore  dty. 
(2)  "That  (m  or  about  the  3d  day  of  Novem- 
ber, 1890,  a  conveyance  was  recorded  among 
the  land  records  of  Baltimore  city,  in  the 
ofllce  of  the  superior  court,  in  Liber  J  B,  No. 
1317,  folio  100,  etc.,  of  a  certain  leasehold 
property  known  as  No.  764  St  Peters  street, 
from  Charles  Lang,  grantor,  to  Charles  Lang 
and  Maria  Lang,  his  wife,  grantees,  said 
conveyance  containing  these  words,  'grants 
unto  Charles  Lang  and  Maria  Lang,  his  wife. 
their  personal  representatives  and  assigns, 
*  *  *  to  have  and  to  hold  the  said  de- 
scribed lot  of  ground  and  premises  unto  and 
to  the  use  of  said  Charles  Lang  and  Maria 
Lang,  his  wife,  and  unto  the  survivor's  per- 
sonal   representatives    and    assigns.' "      (3) 


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Md.) 


LANO  y.  WIL.MEB 


707 


That  Charles  Lang  died  Intestate  on  the  7th 
of  September,  1906,  "leaving  no  real  or  lease- 
bold  property  or  Interest  In  other  than  his 
Interest  in  the  property  referred  to  In  para- 
graph 2";  that  his  said  widow  and  his  next 
of  kin  "defaulted  as  to  an  administration" 
on  Charles  Lang's  estate,  but  that  Maria 
Lang  assumed  possession  of  the  "entire  es- 
tate" In  the  leasehold  property.  No.  764  St 
Peters  street,  as  her  own  property,  and  so 
dealt  with  it  as  stated  In  paragraph  4  of 
the  bill.  (4)  That  immediately  prior  to  the 
death  of  Maria  Lang,  on  September  23, 1907, 
she  attempted  to  convey  the  property,  by 
deed  dated  the  19th  of  September,  1907,  and 
duly  recorded  among  the  land  records,  etc., 
to  her  son,  Charles  F.  Lang,  and  Henrietta 
V.  Lang,  his  wife,  "by  the  entireties."  (5) 
That  on  September  19,  1907,  Charles  F.  Lang 
and  his  wife  executed  a  mortgage  of  said 
leasehold  property,  which  was  duly  recorded, 
to  the  Ninth  West  Columbia  Building  Asso- 
ciation of  Baltimore  city  to  secure  the  pay- 
ment of  $800.  (6)  That  the  plaintiff  is  ad- 
vised that  the  conveyance  to  Charles  Lang 
and  Maria  Lang,  his  wife,  "passed  nothing, 
or.  If  anything  at  all,  only  an  undetermined 
moiety  Interest  in  said  leasehold  property  to 
Maria  Lang,  and  not  a  survivorship  in  the 
whole  property,  which,  according  to  the  terms 
of  said  conveyance,  gives  the  said  leasehold 
property  to  the  'survivor's  personal  repre- 
sentatives and  assigns.' "  (7)  That  he,  the 
plaintiff,  on  the  8th  of  February,  1907,  "recov- 
ered a  Judgment  fiat  executlo,"  on  bis  said 
Judgment,  "against  Maria  Lang,  Albert  Lang, 
and  Charles  F.  Lang,  personal  representa- 
tlves  of  Charles  Lang,  deceased,  and  said 
Judgment  flat  was  duly  recorded  on  or  about 
the  9th  of  April,  1907,  in  the  superior  court 
of  Baltimore  city."  ©)  That,  so  far  as  the 
plaintiff  knows,  the  surviving  children  of 
Charles  Lang  and  Maria  Lang  are  Charles 
F.  Lang,  Albert  Lang,  and  August  Lang. 
(10)  "That  your  orator  Is  a  Judgment  flat 
creditor  of  said  Maria  Lang,  now  deceased, 
and  of  Charles  F.  Lang  and  Albert  Lang,  as 
aforesaid;  and  that  he  is  a  judgment  flat 
creditor  of  August  Lang  in  the  sum  of  $13.05, 
with  interest  from  the  20th  day  of  April,  1903, 
and  costs  $2.60,  and  counsel  fee  of  $10,  with 
waiver  of  all  exemption  and  other  laws, 
which  Judgment  has  been  duly  recorded  in 
the  superior  court  of  Baltimore  city,  in  Mag- 
istrate's Judgment  Records,  Liber  S  C  li,  No. 
71,  folio  550,  etc.;  and  that  he  is  also  a  Judg- 
ment creditor  of  Henrietta  V.  Lang,  the  wife 
of  Oiarles  F.  Lang,  in  the  sum  of  $32.49, 
with  interest  from  September  29,  1908,  and 
costs  $4.23,  and  25  cents  recording  fees,  duly 
recorded  in  the  superior  court  of  Baltimore 
dty,  in  Magistrate's  Judgment  Records,  Liber 
SOL,  No.  62,  folio  306,"  etc.  (11)  "That 
j-our  orator's  respective  judgment  liens  afore- 
said are  liens  upon  the  estate  of  Charles 
riang,  deceased,  in  the  said  leasehold  proper- 
ty No.  764  St.  Peters  street,  as  well  as  liens 


upon  any  part  or  share  of  said  property 
claimed  by  or  otherwise  distributable  to  any 
of  said  judgment  debtors  aforesaid."  (12) 
That  the  plaintiff  is  without  an  adequate 
remedy  at  law. 

The  bill  prayed  the  court  (1)  to  decree  that 
said  leasehold  property.  No.  764  St  Peters 
street,  "is  subject  to  the  liens  of  the  respec- 
tive Judgment  debts  of  said  respective  per- 
sons, due  to  your  orator,  and  to  other  credi- 
tors who  may  come  Into  this  cause,  as  afore- 
said, by  the  priorities."  (2)  "That  the  afore- 
said deed  of  conveyance  from  Charles  Lang 
to  himself  and  Maria  Lang,  his  wife,  be  de< 
creed  to  be  null,  void,  and  of  no  effect  to 
pass  a  Joint  estate  nor  an  estate  by  entire- 
ties." (3)  That  the  deed  of  said  property 
from  Maria  Lang  to  Charles  F.  Lang  and 
Henrietta  V.  Lang,  his  wife,  be  decreed  to 
be  null  and  void.  (4)  That  the  mortgage  to 
the  Building  Association  be  declared  void, 
except  as  to  the  share  or  interest  of  Charles 
F.  Lang  in  said  leasehold  property.  (5)  That 
the  "court  take  Jurisdiction  of  said  leasehold 
property,  •  •  •  and  appoint  a  trustee  to 
sell"  the  same,  "and  that  the  proceeds  be  dis- 
tributed under  the  direction  of  the  court,  to 
such  persons  as  may  be  entitled  thereto." 

Charles  F.  Lang  and  Henrietta  V.  Lang,  his 
wife,  and  the  Building  Association  demurred 
to  the  bill  on  the  following  grounds:  (1)  That 
the  plaintiff  had  not  stated  such  a  case  as 
entitled  blm  to  any  relief  against  them;  (2) 
that  the  plaintiff  had  an  adequate  remedy  at 
law ;  and  (3)  that  the  Judgments  referred  to 
in  the  bill  were  barred  by  the  statute  of 
limitations.  This  appeal  Is  from  the  order  of 
the  court  below  overruling  the  demurrer. 

The  averments  of  the  bill  are  very  indefi- 
nite, but  anmrently  the  theory  upon  which 
the  bill  was  filed  is  that  the  deed  of  Novem- 
ber 3,  1890,  from  Charles  Lang  to  Charles 
Lang  and  Maria  Lang,  bis  wife,  was  either 
totally  void,  or  was  only  effective  to  convey 
to  Maria  Lang  an  undivided  one-half  Inter- 
est in  the  prc^erty  mentioned. 

[1]  The  deed  Is  not  s4t  out  in  full  In  the 
bill  or  filed  as  an  exhibit,  but.  Judging  from 
the  part  of  the  premises  and  the  habendum 
quoted  In  the  bill,  it  is  clear  that  if  the  prop- 
erty had  been  so  conveyed  by  a  third  person 
to  Charles  Lang  and  Henrietta  V.  Lang,  his 
wife,  the  grantees  would  have  held  the  prop- 
erty as  tenants  by  the  entireties,  not  only  be- 
cause the  conveyance  was  to  them  Jointly, 
but  because  the  habendum  clearly  indicates 
that  the  survivor  was  to  take.  Craft  v.  Wil- 
cox, 4  Gill,  504;  Marburg  v.  Cole,  40  Md. 
402,  33  Am.  Rep.  266;  Fladnng  t.  Rose,  68 
Md.  13. 

It  is  said  in  13  Cyc.  627: 

"A  person  cannot  convey  to  himself  aloneu 
and  if  be  makes  a  conveyance  to  himself  and 
others  tho  latter  only  will  take  as  joint  tenants." 

In  support  of  the  text  the  author  cites 
Cameron  v.  Steves,  9  New  Brunsw.  141.  The 
same  case  is  referred  to  in  note  1,  p.  109,  oC 


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vol.  9  Am.  &  Eng.  Ency.  of  Law,  where  It  Is 
said: 

"In  Cameron  T.  Steves,  9  New  Bning.  141,  It 
was  held  that  a  man  cannot  convey  land  to 
himself,  and  therefore  a  deed  from  A.  to  B.,  C, 
and  himself,  and  their  heirs,  bein^;  inoperative 
aa  to  A.,  vested  the  whole  estate  in  B.  and  C. 
as  joint  tenants.  Delivering  the  opinion  of  the 
Court,  Cater,  C.  J.,  said:  It  is  laid  down  in 
Perkins  that  a  feoffment,  with  livery  from  A.  to 

A.  and  B.,  vcata  the  whole  estate  in  B.,  for  A. 
could  not  make  livery  to  himself;  therefore,  by 
virtue  of  the  livery  to  B.,  he  became  enfeoffed  of 
the  whole.  The  reason  of  this  cose  would  not 
■eem  to  apply  equally  to  statutory  conveyances 
where  no  livery  is  required,  and  it  may  be  doubt- 
ed whether  a  man  could  enfeoff  another  of  an 
undivided  share  of  an  estate  to  be  held  with  the 
feoffer.  But  there  ia  another  principle  which 
would  seem  applicable  to  this  case,  under  which 
the  whole  estate  would  vest  in  Cameron  and 
Marshall.  In  Sheppard's  Touchstone  (a  bodt  of 
very  high  authority),  at  page  82,  it  is  laid  down: 
If  a  deed  be  made  to  one  that  is  incapable,  and 
to  others  that  are  capable,  in  this  case  it  shall 
inure  only  to  him  that  is  capable.  (And  if  they 
were  to  be  joint  tenants,  the  person  who  is 
capable  shall  take  the  wholo;  but  if  they  were 
to  be  tenants  in  common,  he  shall  have  only 
his  particular  share.)' " 

In  the  case  of  Bassett  t.  Endlong,  T7  Midi. 
838,  48  N.  W.  984,  18  Am.  St  Bep.  404,  which 
was  an  action  of  ejectment  to  recover  cer- 
tain lands,  William  H.  Bndlong,  the  owner 
of  the  fee  In  the  property,  executeld  and  de- 
livered to  his  wife,  Annette  Budlong,  a  qnlt- 
claim  deed,  by  which  he  purported  to  convey 
the  property  to  her,  ber  heirs  and  assigns, 
forever.  Following  the  habendum  clauae  of 
the  deed  was  the  following  proviso : 

"Provided  always,  and  this  indenture  is  made 
(in  all  respects)  upon  these  express  conditiona 
and  reservations,  that  is  to  say:  (1)  It  is  re- 
served that  said  party  of  the  second  part  shall 
not,  at  any  time  during  the  lifetime  of  the  said 
party  of  too  first  part,  convey  to  any  person  or 
persons,  by  deed,  mortgage,  or  otherwise,  the 
whole  or  any  part  of  the  said  premises,  aa  above 
described,  without  the  written  assent  of  the  said 
party  of  the  first  part  or  his  joining  in  such 
conveyance.  (2)  It  is  further  reserved  that  in 
case  of  the  decease  or  death  of  the  said  Annette 
Budlong,  party  of  the  second  part,  at  any  time 
before  tbe  decease  or  death  of  the  said  William 

B.  Budlong,  party  of  the  first  part,  than  in  such 
case,  and  npon  such  fiecease,  the  said  premises, 
as  above  described,  with  all  and  singular  here- 
ditaments and  appurtenances  thereunto  bdong- 
ing  or  in  any  way  appertaining,  shall  forthwith, 
npon  sach  decease,  revert  back  nnto  the  aaid 
William  H.  Budlong,  of  the  first  part,  and  to  his 
assigns,  forever." 

Budlong's  wife  Oled  In  April,  1886,  and  he 
died  In  Jnne  of  the  same  year.  Previous  to 
his  death  he  devised  the  land  so  conveyed  to 
Bertha  M.  Bndlong;  and  Bassett,  a  brother, 
and  Beeman,  a  nephew,  of  Annette  Budlong, 
ber  only  heirs  at  law  brought  the  snlt  The 
circuit  court  held  that  the  plaintiffs  were  en- 
titled to  recover,  but  the  Michigan  Supreme 
Court  reversed  the  judgment,  and  in  the 
course  of  Its  opinion  said : 

"ESvoiy  deed  or  contract  in  writing  is  suppos- 
ed to  express  the  intention  of  the  parties  exe- 
cuting it,  and  when  the  object  or  purpose  of  such 
deed  or  contract  i«  called  in  question  in  a  court 
of  justice,  the  first  inquiry  is.  What  is  the  in- 
tention of  the  parties  as  expressed  in  the  writ- 
ten instrument?    It  is  very  plain,  upon  the  face 


of  the  instrument,  that  Mr.  Budlong  did  not  in- 
tend to  convey  to  his  wife  the  title  to  the  prem- 
ises in  fee  simple  absolute.  She  was  precluded 
from  conveying  in  any  manner  the  premises 
described  without  his  written  assent  or  joining 
in  the  conveyance;  and  if  she  died  before  he 
did,  she  was  to  have  no  further  interest  in  the 
land.  If  he  died  before  she  did,  then  the  title 
in  fee  simple  absolute  should  pass  and  become 
vested.  Such  is  the  apparent  intention  of  the 
parties  as  expressed  in  the  deed.  It  is  the  duty 
of  the  court  to  so  construe  the  instrument  as 
to  carry  out  the  intent  of  the  parties  making  it, 
if  no  legal  obstacle  lies  In  the  way.  •  •  •  We 
do  not  think  it  is  necessary  to  rosort  to  the 
surrounding  facts  and  circumstances  in  order 
to  discover  the  intent  of  the  parties.  If,  how- 
ever, we  look  to  the  surrounding  facts  and  cir- 
cumstances, we  find  them  all  affording  evidence 
of  the  intent  expressed  in  the  instrument. 
*  *  *  When  it  is  considered  that  he  was  a 
farmer  and  a  householdor,  and  continued  bis 
residence  upon  the  premises  until  his  deatii,  and 
retained  the  use  and  enjoyment  of  his  personal 
property,  it  is  evident  that,  by  executing  the 
deed  to  his  wife,  he  did  not  mtend  to  part  with 
the  title  to  his  real  estate,  unless  the  contingency 
should  occur  of  his  dying  before  his  wife  died. 
That  event  did  not  occur,  and  the  estate  never 
vested  in  his  wife.  The  condition  in  the  deed 
that  his  wife  should  not  convoy  or  mortgage 
the  land  without  his  written  assent  or  joining 
in  the  deed  is  a  dear  indication  that  the  title 
should  not  pass,  because  if  it  was  the  intention 
that  it  should  pass,  and  the  estate  vest  in  his 
wife,  the  condition  would  be  nugatory,  and  no 
force  or  effect  be  given  to  this  part  of  the  in- 
strument. To  hold  that  the  title  did  pass  by 
the  absolute  words  of  the  granting  clauses  would 
violate  that  rule  of  construction  which  requires 
that  every  portion  of  the  instrument  should  be 
given  effect  according  to  the  intention  of  the 
parties.  When  we  consider  the  intimate  relation 
of  the  parties  to  the  instrument — that  of  hus- 
band and  wife— the  effect  of  the  arrangement 
entered  into  was  that  the  title  of  the  real  estate 
should,  in  the  event  of  the  death  of  either,  go 
to  the  survivor.  Doubtless  a  simpler  way  to  ac- 
complish the  object  would  have  been  for  them 
to  have  united  in  a  deed  to  a  third  party,  and 
for  him  to  have  conveyed  to  them  jointly,  and 
then,  under  tho  statute,  the  survivor  would  have 
succeeded  to  the  whole  title  and  estate." 

In  the  case  of  Pegg  r.  Pegg,  166  Mich.  228, 
180  N.  W.  617,  83  L.  R.  A.  (N.  8.)  168,  Ann. 
Cas.  1912C,  926,  Davis  Pegg  conveyed  to  his 
wife,  Mary  C.  Pegg,  "an  undivided  one-half 
interest"  in  and  to  two  parcels  of  land.  In 
the  deed,  between  the  granting  and  haben- 
dum clauses,  there  waa  Inserted  the  follow- 
ing clause: 

"The  object  and  purpose  of  this  deed  ia  to 
convey  to  said  second  party  such  an  interest  in 
said  land  that  the  parties  hereto  will  have  an 
estate  in  entirety,  and  that  the  same  shall  sur- 
vive and  vest  in  the  survivor  as  the  full  and  com- 
plete estate." 

Davis  Pegg  died,  and  his  wife  claimed  the 
property  on  the  theory  that  she  and  her  hus- 
band owned  it  aa  tenants  by  the  entirety, 
while  the  children  and  grandchildren  of  Da- 
vis Pegg  insisted  that  the  grantor  and  gran- 
tee were  tenants  In  common,  and  that  upon 
the  death  of  Davis  Pegg  hia  oue-lialf  Interest 
in  the  property  descended  to  them.  In  dl»- 
poelng  of  the  case  the  Mictiigan  Supreme 
Court  said: 

"Davis  Peg^  conveyed  an  undivided  one-halt 
interest  in  said  premises  to  complainant.  He 
retained  an  undivided  one-half  interest  therein. 


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After  this  was  done,  they  had  distinct  titles,  and 
were  therefore  tenants  in  common.  The  title 
remained  that  way  until  Davis  Pegg  died.  The 
qaestion  is,  then.  What  became  of  his  undivided 
half?  Ordinarily  it  would  descend  to  his  heirs, 
the  defendants,  and  it  did  so  descend,  unless 
the  clause  which  was  inserted  carried  it  in  a 
different  direction.  Complainant  contends  that 
it  did  not  BO  descend,-  because  edie  and  her  hus- 
band owned  the  premises  as  tenants  by  the  en- 
tirety, and  were  made  such  by  said  deed,  and 
that  now,  as  survivor  of  her  husband,  she  is  en- 
titled to  the  whole  of  said  pronises.  In  order 
to  own  the  whole,  as  survivor,  she  would  have 
to  be  seised  of  the  whole  before  his  death. 
Whatever  vested  in  her  as  survivor  must  have 
been  owned  by  both  her  and  her  husband  before 
his  death,  and  each  must  have  been  seised  of 
the  whole.  As  neither  one  •  *  *  was  seised 
of  the  whole,  but  both  held  by  distinct  titles, 
they  could  not  have  been  tenants  by  the  entire- 
ty. Neither  were  they  tenants  by  entirety  of 
tne  undivided  half  conveyed  to  her,  because  Da- 
vis P%g  reserved  no  interest  in  the  undivided 
half  he  conveyed  to  the  complainant.  The  deed 
as  a  whole  cannot  be  construed  as  creating  a 
tenancy  by  entirety,  because  the  law  was  not 
followed  in  creating  it.  At  the  common  law, 
the  unities  of  time,  title,  interest,  and  possession 
had  to  be  observed  in  creating  such  an  estate. 
•  *  *  The  common  law  has  remained  un- 
changed in  this  respect,  and  is  now  in  force. 
In  the  attempt  to  create  an  estate  by  entirety, 
in  the  case  under  conedderation,  neither  the 
tmity  of  time  nor  title  was  observed.  The  estate 
was  not  created  by  one  and  the  same  act; 
neither  did  it  vest  in  them  at  one  and  the  same 
time.  If  the  clause  inserted  can  be  said  to 
be  a  part  of  the  habendum  of  the  deed,  as  is 
argued,  then  that  part  of  the  habendum  must 
la3,  on  the  ground  that  it  seeks  to  enlarge  an 
estate  in  common,  which  is  granted,  into  an 
estate  of  entirety,  without  complying  with  the 
rules  of  law  for  the  creation  of  sudi  an  estat^ 
By  reason  of  these  considerations,  the  deed 
must  be  read  as  though  the  'clause'  had  been 
omitted.  The  deed  created  a  tenancy  in  com- 
mon between  complainant  and  husband,  and 
vpoD  his  decease  his  undivided  one-halt  of  the 
premises  descended  to  his  heirs." 

Tte  dedslan  In  Pegg  ▼.  Pegg  Is  critlclaed 
In  the  editor's  note,  and  he  cites  McRoberts 
V.  Ch^peland,  86  Tenn.  211,  2  S.  W.  33,  as 
holding  that  where  a  husband  conveys  prop- 
erty, and  in  the  habendum  reserves  a  life 
estate  to  himself  and  his  wife,  the  life  estate 
Inures  npon  the  death  of  the  grantor  to  the 
survivor.  But  It  Is  apparent  that  the  con- 
trolling feature  of  Pegg  v.  Pegg  was  that  the 
grant  to  the  wife  was  only  of  an  undivided 
one-half  interest  In  the  property,  which  made 
the  wife  a  tenant  In  conuuon,  and  which  the 
court  hdd  could  not  be  enlarged  by  the  sub- 
sequent clause  of  the  deed.  Neither  the 
husband  or  wife  was  seised  of  the  whole. 

In  the  case  at  bar  the  conveyance  was  not 
In  terms  of  an  undivided  one-half  interest 
in  the  property,  but  a  grant  of  the  entire  es- 
tate to  husband  and  wife,  "their  personal 
representatives  and  assigns,"  and  there  Is  no 
conflict  between  the  granting  and  the  haben- 
dum clauses  of  the  deed. 

[2]  The  Intoitlon  of  the  grantor  that  the 
whole  estate  should  vest  In  the  survivor  Is 
manifest,  and  that  li^ntlon  should  prevail 
unless  in  conflict  with  some  settled  rule  of 
law.  Georges  Creek  Co.  v.  Detmold,  1  Md. 
23&     Under  the  Code,   a  married  woman 


may  hold  pre^erty  acquired  by  her  after  her 
marriage  as  her  separate  estate,  and  a  mar- 
ried man  may  convey  property  directly  to  his 
wife.  Code,  art  46,  H  1.  4 ;  Trader  v.  Lowe, 
45  Md.  1,  14.  As  Charles  Lang  did  not  in- 
tend to  convey  the  estate  to  himself  and 
wife  as  tenants  in  common,  under  the  prin- 
ciple announced  in  Cameron  v.  Steves,  Maria 
Lang  would  take  the  whole  property.  On 
the  other  hand,  if,  contrary  to  the  express 
intention  of  the  parties,  we  construe  the 
deed  as  conveying  to  Maria  Lang  only  an 
undivided  one-hatf  interest  in  the  property, 
then,  under  the  decision  in  Pegg  v.  Pegg, 
Charles  Lang  and  his  wife  held  the  prop- 
orty  as  tenants  in  common,  and  upon  his 
death  his  Interest  passed  to  his  personal 
representatives.  If,  as  in  McKoberts  v. 
Copeland,  we  treat  the  deed  as  creating  a 
new  estate  in  both  of  the  grantees,  we  not 
only  have  the  common-law  unities  of  time, 
title,  etc.,  of  a  tenancy  by  entireties,  but  we 
give  effect  to  the  clear  Intention  of  the  par- 
ties that  the  whole  estate  should  vest  in  the 
survivor,  his  or  ho:  personal  representatives 
and  assigns. 

In  this  case,  however,  we  do  not  find  it  nec- 
essary to  construe  the  deed  in  question.  In 
the  demurrer  the  appellants  rely  npon  the 
statute  of  limitations.  The  judgment  against 
Charles  Lang  was  recorded  on  the  22d  of 
June,  1901,  and  the  bill  of  complaint  in  this 
case  was  not  filed  until  September  6,  1916. 

[8]  Upon  the  death  of  an  owner  of  lease- 
hold property,  the  estate  devolves  upon  bis 
personal  representatives.  Merryman  v.  Long, 
49  Md.  540.  The  blU  alleges  that  no  letters 
of  administration  upon  the  estate  of  Charles 
Lang  were  taken  out  It  further  alleges 
that  on  the  8th  of  February  1907,  the  plain- 
tiff "recovered  a  Judgment  of  flat  executio 
*  •  •  against  Maria  Lang,  Albert  Lang, 
and  Charles  F.  Lang,  personal  representa- 
tivea  of  Charles  Lang,  deceased."  If  no  let- 
ters of  administration  were  taken  out,  as 
averred  in  the  bill,  Maria  Lang,  Albert  Lang, 
and  Charles  F.  Lang  could  not  have  been 
the  personal  representatives  of  the  deceased. 

[4]  Where  the  defoidant  in  a  Judgment 
dies,  a  scire  facias  may  be  sued  out  to  re- 
vive the  Judgment  against  the  administra- 
tor alone  to  bind  the  assets  in  his  hands; 
but  where  it  is  desired  to  revive  the  Judg- 
ment against  the  land  of  the  deceased  Judg- 
ment debtor,  the  scire  facias  should  also 
Issue  against  the  heirs  and  terre-tenants. 
2  Poe,  P.  4  P.  8  593;  Tiers  v.  Oodd,  87 
Md.  447,  39  Atl.  1044.  In  Polk  v.  Pendleton, 
31  Md.  118,  C9»ief  Judge  Bartol  said : 

"Who  are  terre-tenants  within  the  meaning 
of  the  law,  whom  it  is  necessary  to  make  par- 
ties to  the  scire  facias?  All  who  are  in  pos- 
session, deriving  title  under  the  judgment  debt- 
or, such  as  heirs,  devisees,  or  alienees,  after  the 
judgment  They  are  in  as  of  the  estate  of  the 
judgment  debtor,  and  before  the  judgment  can 
be  revived  and  enforced  by  execution  against 
the  land,  so  as  to  divest  their  title,  it  is  neces- 
sary to  warn  them  by  the  scire  facias,  so  that 
they  may  have  an  opportunity  of  making  tlieir 


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(Md. 


Jcfense,  and  of  claiming  contribution  from  oth- 
ers holding  lands  of  the  judgment  debtor,  bound 
by  the  judgment.  •  •  •  But  where  a  party 
is  in  possession,  holding  by  title  adverse  to  that 
of  the  judgment  debtor,  or  paramount  to  his, 
such  party  is  not  a  terre-tenant,  within  the 
meaning  of  the  law,  because  his  rights  are  in 
no  manner  affected  by  the  judgment.  If  he 
have  a  good  title,  the  judgment  does  not  bind 
the  land,  nor  can  a  sale  under  the  execution 
affect  his  interest.  If  be  have  not  a  good  title, 
then  he  would  have  no  right  to  claim  contribu- 
tion by  reason  of  the  land  being  taken  to  satisfy 
the  judgment." 

[5]  The  estate  Maria  Lang  acquired  under 
the  deed  In  question  was  not  subject  to  the 
Uen  of  the  Judgment  against  Charles  Lang, 
and  she  was,  therefore,  as  to  snch  Interest, 
not  a  proi>er  party  to  the  sdre  facias,  and  her 
title  under  the  deed  was  not  affected  by  the 
alleged  judgment  of  flat.  2  Freeman  on 
Judgments  (4th  Ed.)  {  448;  Adams  v.  Stake, 
67  Md.  447,  10  Atl.  444. 

[1]  Assuming  that  where  a  Judgment  debt- 
or dies  leaving  leasehold  property,  the  Judg- 
ment may  be  revived  by  a  sdre  facias 
against  his  next  of  kin  as  terre-tenants  with- 
out making  the  administrator  a  party,  the 
sdre  facias  against  tbem  is  a  proceeding  In 
rem,  and  the  Judgment  obtained  Is  not 
a  personal  Judgment  against  them,  but  one 
subjecting  the  property  In  their  possession, 
which  belonged  to  the  Judgment  debtor,  to 
the  payment  of  the  debt,  and  the  proceedings 
must  therefore  contain  a  spedflc  description 
of  the  property  against  which  execution  is 
to  be  awarded  by  the  Judgment  of  flat  2 
Poe,  P.  &  P.  J  600;  Thomas  v.  Bank,  46 
Md.  57;  Bish  v.  Wllllar,  59  Md.  382;  Tiers 
V.  Codd,  87  Md.  447,  39  Atl.  1044 ;  Wright  v. 
Ryland,  92  Md.  645,  48  Atl.  163,  49  .\tl.  1009. 
53  L.  R.  A.  702.  The  bill  does  not  allege 
that  the  Judgment  against  Charles  Lang 
was  revived  by  a  Judgment  of  flat  against 
his  next  of  kin  or  those  who  would  be  en- 
titled to  the  property  as  distributees  of  his 
estate,  and  It  does  not  therefore  appear 
from  the  bill  that  the  Judgment  was  revived 
as  a  Hen  against  the  property.  On  the  con- 
trary, the  bUl  alleges  that  he  recovered  a 
Judgment  of  flat  against  Maria  Lang,  Charles 
F.  I^ng,  and  Albert  Lang  as  the  personal 
representatives  of  the  deceased. 

As  we  have  said,  the  bill  avers  that  no 
letters  of  administration  were  taken  out. 
We  would  not  be  Justified  In  holding  that 
the  Judgment  was  revived  against  Maria 
Lang  and  Charles  F.  Lang,  as  administra- 
tors of  Charles  Lang,  when  the  bill  clear- 
ly shows  that  they  were  not  the  administra- 
tors of  his  estate.  In  Wilmer  v.  Trumbo, 
121  Md.  445,  88  Atl.  259,  this  court  held  that 
execution  on  a  Judgment  of  flat  against  one 
who  had  been  proceeded  against  as  the  per- 
sonal representative  of  the  deceased  Judg- 
ment debtor,  but  who  in  fact  was  not  the 
personal  representative  of  the  deceased, 
should  be  enjoined. 

[7]  Upon  the  failure  of  those  first  entitled 


to  administration  to  apply  for  letters,  ad- 
ministration may  be  granted  by  the  or- 
phans' court  to  the  largest  creditor  apply- 
ing for  the  same.     Code,  art  93,  §  30. 

[8]  The  statute  of  limitations  begins  to 
run  as  to  Judgments  from  the  date  of  the 
judgment,  and  is  not  suspended  by  the  death 
of  the  judgment  debtor,  or  neglect  of  those 
entitled  to  obtain  administration  upon  his 
estate.  See  Brooks  v.  Preston,  106  Md.  693, 
68  Atl.  294,  and  cases  dted  in  the  opinion 
of  the  court. 

It  follows  from  what  has  been  said  that 
the  demurrer  interposed  in  the  court  below 
by  Charles  P.  Lang  and  Henrietta  V.  Lang, 
hla  wife,  and  the  Building  Assodation,  the 
appellants  in  this  court  should  have  been 
sustained,  and  that  the  decree  of  the  court 
below  must  therefore   be  reversed. 

Decree  reversed,  with  costs,  and  bill  dis- 
missed as  to  the  appellants,  Charles  F.  Lang 
and  Henrietta  V.  Lang,  his  wife,  and  the 
Ninth  West  Columbia  Building  Assodation 
of  Baltimore  City. 


(131  Hd.  265) 

SOLVUOA  V.  RYAN  ft  BEILLX  CO.    (No.  46.) 
(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Eminent  Domain  ®=>2(1)  —  Emploteb's 
Compensation  Act— Takino  of  Pbopkbtt 
Without  Compensation. 

Employer's  Compensation  Act  (Laws  1914, 
c.  800)  is  not  violative  of  Const  art  3,  g  40, 
prohibiting  the  taking  of  property  without  just 
compensation  agreed  upon  or  awarded  by  a  jury. 

2.  JuBT  «=>35(2)— Bmploteb's  Compsnsatioit 
Act— JuBT  Trial. 

Employer's  Compensation  Act  is  not  viola- 
tive of  Const  art  15,  §  6,  providing  for  a  jury 
trial  of  all  issues  of  fact  in  civil  proceedings,  as 
the  act  expressly  provides  for  a  jury  trial  on 
appeals. 

3.  CoNSTiTUTiONAi.  Law  «=>80(2)  —  Master 
ANO  Sebvant  ^=»347— Emploteb's  Compen- 
sation Aci^— JuDrciAL  Powers. 

Employer's  Compensation  Act  is  not  viola- 
tive of  Const  art  4,  {  1,  vesting  the  Judicial 
power  of  the  state  in  named  courts,  or  article  8 
of  Declaration  of  Rights,  declaring  that  th« 
legislative,  executive,  and  judicial  powers  of  the 
government  ought  to  be  forever  separate  and 
distinct,  as  the  act  did  not  constitute  the  State 
Industrial  Accident  Commission  a  court 

Appeal  from  Baltimore  Court  of  Common 
Pleas;    Morris  A.  Soper,  Judge. 

"To  be  offldally  reported." 

Suit  by  Antonl  Solvuca  against  the  Ryan 
ft  Rellly  Company.  Judgment  for  defend- 
ant, and  plaintiff  appeals.  Affirmed,  with 
costs. 

See,  also,  129  Md.  235,  98  AU.  675. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  URNEB,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

David  Ash,  of  Baltimore,  for  appellant. 
Edwin  W.  Wells,  of  Baltimore,  and  Albert 
C.  Ritchie,  Atty.  Gen.,  for  appellee. 

THOMAS,  J.  This  suit  was  brought  by 
the  appellant  to  recover  for  injuries  recelv- 


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SOLVUCA  T.  KYAN  A  REILI.Y  00. 


711 


ed  wbile  in  the  employ  of  the  appellee,  and 
charged  In  the  declaration  to  have  been  caus- 
ed by  Its  negligence.  As  we  said  In  the  first 
appeal  (129  Md.  235,  98  AU.  675),  the  narr.. 
on  its  face,  presents  a  good  cause  of  action, 
but  the  defendant  Interposed  the  following 
plea: 

"That  in  conformity  with  the  proTiaions  of 
chapter  800  of  the  Acts  of  1014,  generally 
known  as  the  Employer's  Compensation  Act, 
this  defendant,  the  Ryan  &  Reilly  Company,  ex- 
ercised the  option  of  securing  compensation  for 
its  employes  engaged  in  hazardons  employments, 
as  provided  in  section  15  and  subsection  3  of 
said  act;  that  by  an  order  of  the  State  Indus- 
trial Accident  Commission  passed  the  28th  day 
of  January,  1015,  and  which  continued  in  ef- 
fect until  the  15th  day  of  January,  1916,  this 
defendant  was  permitted  to  carry  its  compensa- 
tion risli  as  a  self-insurer,  having  established 
its  financial  ability  to  assume  the  payment  of  the 
compensation  required;  that  on  the  20th  day  of 
February,  1015,  the  date  of  the  alleged  injury 
to  the  plaintiff  in  this  cause,  said  order  was  in 
^ect,  and  the  defendant  •  •  •  had  thereby 
secured  compensation  to  this  employ^  who  was 
injured  while  in  a  hazardous  employment,  and 
the  defendant  fully  complied  with  the  provi- 
sions of  the  Compensation  Act  as  provided  by 
section  16,  subsection  3,  of  said  act." 

The  plaintiff  demurred  to  this  plea.  It  Is 
not  suggested  that  the  plea  Is  defective  in 
form,  but  the  purpose  of  the  demurrer  was 
to  challenge  the  constitutionality  of  the  act, 
which,  it  is  claimed,  contravenes  the  Four- 
teenth Amendment  and  article  7  of  the  Con- 
stitution of  the  United  States  and  the  Dec- 
laration of  Bights  and  Constitution  of  this 
state. 

This  act,  commonly  caUed  the  Workmen's 
Compensation  Act,  declares  In  its  preamble 
that  the  state — 

"recognizes  that  the  prosecution  of  various  in- 
dnstrial  enterprises  which  must  be  relied  up- 
on to  create  and  preserve  the  wealth  and  pros- 
perity of  the  state  involves  injury  to  large  num- 
bers of  workmen,  resulting  in  their  partial  or 
total  incapacity  or  death,  and  that  under  the 
roles  of  tlie  common  law  and  the  provisions  of 
the  statutes  now  in  force  an  unequal  burden  is 
cast  upon  its  citizens,  and  that  in  determining 
the  responsibility  of  the  employer  on  account  of 
injuries  sustained  by  his  workmen,  great  and  un- 
necessary cost  is  now  incurred  in  litigation, 
which  cost  is  ix>me  by  the  workmen,  the  em- 
ployers and  the  taxpayers,  in  part,  in  the  main- 
tenance of  courts  and  juries  to  determine  the 
question  of  responsibility  under  the  law  as  it 
now  exists;  and,  *  *  *  in  addition  thereto, 
the  state  and  its  taxpayers  are  subjected  to  a 
heavy  burden  in  providing  care  and  support  for 
such  Injured  workmen  and  their  dependents, 
which  burden  should,  in  so  far  as  may  be  con- 
sistent with  the  rights  and  obligations  of  the 
people  of  the  state,  be  more  fairly  distributed  as 
in  uis  act  provided;"  and  that  "whereas,  the 
common-law  system  governing  the  remedy  of 
workmen  against  employers  for  injuries  received 
in  extrahazardous  work  is  inconsistent  with 
modem  industrial  conditions,  and  injuries  in 
such  work,  formerly  occasional,  have  now  be- 
come frequent  and  inevitable":  Therefore  "the 
state  of  Maryland,  exercising  herein  its  police 
and  sovereign  power,  declares  that  all  phases 
of  extrahazardous  employments  be,  and  they  are 
hereby  withdrawn  for  private  controversy,  and 
sure  and  certain  relief  for  workmen  injured  in 
extrahazardous  employments  and  their  families 
and  dependents  are  hereby  provided  for,  re- 
gardless of  questions  of  fault,  and  to  the  ex- 


clusion of  every  other  remedy,  except  as  provid- 
ed in  this  act." 

The  act  creates  a  commission  to  Hdmlnis- 
ter  the  law;  authorizes  it,  for  the  purjxwe 
contemplated  by  the  act,  to  require  the  at- 
tendance of  witnesses  and  the  production  of 
books,  pay  rolls,  documents,  and  testimony, 
and  to  apply  to  any  Judge  of  the  supreme 
bench  of  Baltimore  city,  or  of  the  drcnlt 
court  of  any  county,  for  a  rule  on  any  wit- 
ness refusing  to  testify,  or  to  produce  a  book 
or  paper,  to  show  cause  why  he  should  not 
be  committed  to  Jail;  to  adopt  reastmable 
and  proper  rules  to  govern  Its  procedure; 
and  provides  that  the  commission  shall  not 
be  bound  by  the  usual  common-law  or  stat^ 
ut<n:y  rules  of  evidence,  or  by  any  technical 
or  formal  rule  of  procedure,  but  may  make 
the  investigation  in  such  manner  as  In  its 
judgment  is  best  calculated  to  ascertain  the 
substantial  rights  of  the  parties  and  to  carry 
out  Justly  the  spirit  of  the  act.  The  com- 
missicMi  Is  required  to  make  annually  a  re- 
port to  the  Governor  of  the  number  of 
awards  made  by  it,  the  causes  of  the  acci- 
dents, and  a  detailed  statement  of  its  ex- 
penses and  of  the  condition  of  the  state  acd- 
d'«it  fund  (therein  provided  for),  together  with 
any  other  matter  it  may  deem  proper  to  re- 
port Every  employer  is  required  to  pay  or 
provide,  as  required  by  the  act,  compensa- 
tion, according  to  the  schedule  contained 
therein,  "for  the  disability  or  death  of  hia 
employe  resulting  from  an  accidental  per- 
8<Mial  injury  sustained  by  the  employ^  aris- 
ing out  of  and  In  the  course  of  his  employ- 
ment, without  regard  to  fault  as  a  cause  of 
such  injury,  except  where  the  injury  is  oc- 
casioned by  the  wilful  Intention"  of  the  em- 
ploy6  to  bring  about  the  injury  or  death  of 
himself  or  of  others,  or  where  the  injury  re- 
sults solely  from  the  intoxication  of  the  em- 
ploye while  on  duty.  The  liability  prescribed 
above  is  exclusive,  provided  that,  If  the  em- 
ployer shall  fail  to  secure  the  payment  of 
compensation  as  provided  in  the  act,  an  in- 
jured employe,  or  his  legal  representatives 
in  case  death  results  from  the  injury,  "may, 
at  his  option,  elect  to  claim  compensation" 
under  the  act,  or  to  maintain  an  action  In 
the  courts  for  damages,  in  which  action  the 
defendant  shall  not  plead  as  a  defense  that 
the  injury  was  caused  by  the  negligence  of 
a  fellow  servant  or  the  negligence  of  the  em- 
ploye, or  that  the  employe  assumed  the  risk 
of  the  employment.  The  employer  is  requir- 
ed to  secure  the  compensation  provided  by 
the  act  (1)  by  insuring  the  payment  of  the 
same  in  the  state  accident  fund;  (2)  by  Insur- 
ing the  payments  in  any  stock  corporation  or 
mutual  association  authorized  to  transact 
the  business  of  workmen's  compensation  in- 
surance in  the  state;  or,  (3)  if  be  does  not 
voluntarily  adopt  one  of  the  above  methods, 
by  furnishing  the  commission  with  satisfac- 
tory proof  of  his  ability  to  pay  such  com- 
pensation, and  depositing,  when  required  to 
do  so,  with  the  commission  securities  in  an 


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101  ATLANTIC  REPORTER 


(Md. 


amount  to  be  determined  by  the  commission, 
to  secure  bis  liability.  Proylslon  Is  made 
for  the  cstabUshment  of  a  fund  called  the 
state  accident  fund,  to  Insure  employers 
against  liability,  and  payment  to  employes 
and  tbelr  dependents  of  the  compensation 
spedfled.  A  great  number  of  employments 
are  specified  as  extrahazardous,  and  the  act 
Is  made  to  apply  to  all  other  extrahazardous 
employments.  Compensation  Is  allowed  for 
temporary  and  permanent  and  for  partial 
and  total  disability  according  to  the  schedule 
contained  In  the  act,  and  provision  Is  made  for 
compensation  to  dependents  where  the  injury 
results  In  the  death  of  the  employ&  An  ap- 
peal is  allowed  from  the  decision  of  the  com- 
mission to  the  circuit  courts  or  the  common- 
law  courts  of  Baltimore  city  by  an  employer, 
employe,  beneficiary,  or  person  feeling  ag- 
grleyed  by  such  decision;  and  provision  is 
made  for  trial  by  Jury  in  the  courts  of  is- 
sues of  fact,  and  for  the  reversal  or  modifica- 
tion by  the  court  of  the  decision  of  the  com- 
mission, in  accordance  with  the  law  and 
facts,  and  for  a  further  appeal  from  the 
Judgment  of  the  circuit  court  or  common-law 
covurt  of  Baltimore  dty  to  this  court 

All  of  the  questions  raised  by  the  demur- 
rer, except  the  two  to  which  we  shall  here- 
after refer,  are  so  fully  covered  by  recent  de- 
cisions of  the  Supreme  Court  of  the  United 
States,  and  by  a  recent  decision  of  this  court, 
that  it  would  be  useless  to  undertake  a  far- 
ther discussion  of  them  here. 

We  have  frequently  said  that  "the  law  of 
the  land,"  in  the  Constitution  of  this  state, 
and  "due  process  of  law,"  in  the  Constitution 
of  the  United  States,  mean  the  same  thing. 
Baltimore  Belt  R.  R.  Co.  v.  Baltzell,  76  Md. 
94,  23  Atl.  T4;  Public  8.  Com.  v.  N.  O.  Ry. 
Co.,  122  Md.  356,  90  Atl.  106.  In  the  case  of 
New  York  Central  R.  B.  Co.  v.  White,  243 
U.  S.  188,  37  Sup.  Ct  247,  61  L.  Ed.  667,  de- 
cided March  6,  1917,  Mr.  Justice  Pitney,  in 
delivering  the  opinion  of  the  Supreme  Court, 
after  reviewing  the  provisions  of  the  Work- 
men's Compensation  Law  of  New  York,  which 
are  like  those  of  our  statute,  said: 

"The  scheme  of  the  act  is  so  wide  a  de- 
parture from  common-law  standards  respecting 
the  responsibility  of  employer  to  employe  that 
doubts  naturally  have  been  raised  respecting  its 
constitutional  validity.  The  adverse  considera- 
tions urged  or  suggested  in  this  case  and  in 
kindred  cases  submitted  at  the  same  time  are: 
(a)  That  the  employer's  property  is  taken  with- 
out due  process  of  law,  because  he  is  subjected 
to  a  liability  for  compensation  without  regard 
to  any  neglect  or  default  on  his  part  or  on  the 
part  of  any  other  person  for  whom  he  is  re- 
sponsible, and  in  spite  of  the  fact  that  the  in- 
jury may  be  solely  attributable  to  the  fault  of 
the  employ*;  (b)  that  the  employe's  rights  are 
interfered  with,  In  that  he  is  prevented  from 
having  compensation  for  injuries  arising  from 
the  employer's  fault  commensurate  with  the 
damages  actually  sustained,  and  is  limited  to 
the  measure  of  compensation  prescribed  by  the 
act;  and  (c)  that  both  employer  and  employs 
are  deprived  of  their  liberty  to  acquire  property 
by  being  prevented  from  making  such  agree- 
ment as  they  choose  respecting  the  terms  of  the 
employment.    •    •    • 


"In  considering  the  constitutional  question, 
it  is  necessary  to  view  the  matter  from  the 
standpoint  of  the  employe  as  well  as  from  that 
of  the  employer.  For  while  plaintiff  in  error 
is  an  employer,  and  cannot  succeed  without 
showing  that  its  rights  as  such  are  infringed, 

•  •  •  yet,  as  pointed  out  by  the  Court  of  Ap- 
peals in  the  Jensen  Case,  215  N.  Y.  526  [109 
N.  El  600,  L.  R.  A.  1916A,  403,  Ann.  Cas. 
1916B,  276],  the  exemption  from  further  lia- 
bility is  an  essential  part  of  the  scheme,  so 
that  the  statute,  if  invalid  as  against  the  em- 
ploy$,  ig  invalid  as  against  the  employer. 

"The  close  relation  of  the  rules  governing 
responsibility  as  between  employer  and  employ! 
to  the  fundamental  rights  of  liberty  and  proper- 
ty is,  of  course,  recognized.  But  those  rules, 
as  guides  of  conduct,  are  not  beyond  alteration 
by  legislation  in  the  public  interest.  No  person 
has  a  vested  interest  in  any  rule  of  law  enti- 
tling him  to  insist  that  it  shall  remain  un- 
changed for  his  benefit.  *  •  •  The  common 
law  bases  the  employer's  liability  for  injuries 
to  the  employe  upon  the  ground  of  negligence; 
but  negligence  is  merely  the  disregard  of  some 
duty  imposed  by  law,  and  the  nature  and  extent 
of  the  dutjr  may  be  modified  by  legislation,  with 
corresponding  change  in  the  test  of  negligence. 
Indeed,  liability  may  be  imposed  for  the  con- 
sequences of  a  failure  to  comply  with  a  stat- 
utory duty,  irrespective  of  negligence  in  the 
ordinary  sense,  safety  appliance  acts  being 
a   familiar  instance.    •    •    • 

"The  fault  may  be  that  of  the  employer  him- 
self, or — most  frequently — that  of  another  for 
whose  conduct  he  is  made  responsible  according 
to  the  maxim  respondeat  superior.  In  the  lat- 
ter case  the  employer  may  be  entirely  blame- 
less, may  have  exercised  the  utmost  human  fore- 
sight to  safeguard  the  employe;  yet,  if  the 
alter  ego,  while  acting  within  the  scope  of  his 
duties,  be  negligent— in  disobedience,  it  may 
be,  of  the  employer's  positive  .and  specific 
command — the  emplojrer  Is  answerable  for  the 
consequences.  It  cannot  be  that  the  rule  em- 
bodied in  the  maxim  is  unalterable  by  legisla- 
tion. 

"The  Immunity  of  the  employer  from  respon- 
sibility to  an  employe  for  the  negligence  of 
a  fellow  employe  is  of  comparatively  recent 
origin,  it  being  the  product  of  the  judicial  con- 
ception that  the  probability  of  a  fellow  work- 
man's negligence  is  one  of  the  natural  and 
ordinary  risks  of  the  occupation,  assumed  by 
the  employe  and  presumably  taken  into  ac- 
count in  the  fixing  of  bis  wages.  *  *  •  The 
doctrine  has  prevailed  generally  throughout  the 
United  States,  but  with  material  differences  in 
different  jurisdictions  respecting  who  should  be 
deemed  a  fellow  servant  and  who  a  vice  princi- 
pal or  alter  ego  of  the  master,  turning  some- 
times upon  refined  distinctions  as  to  grades  and 
departments  in  the  employment.  *  •  *  It 
needs  no  argument  to  show  that  snch  a  rule 
is  subject  to  modification  or  abrogation  by  a 
state  upon  proper  occasion. 

"The  same  may  be  said  with  respect  to  the 
general  doctrine  of  assumption  of  risk.  By  the 
common  law  the  employe  assumes  the  riska 
normally  incident  to  the  occupation  in  which 
he  voluntarily  engages;  other  and  extraordi- 
nary risks  and  those  due  to  the  employer's  neg- 
ligence he  does  not  assume  until  made  aware  of 
them,  or  until  they  become  so  obvious  that  an 
ordinarily  prudent  man  would  observe  and  ap- 
preciate them ;  in  either  of  which  cases  he  does 
assume  them,  if  he  continues  in  the  employment 
withont  obtaining  from  the  employer  an  assur- 
ance that  the  matter  will  be  remedied;  but  if 
he  receive  such  an  assurance,  then,  pending 
performance  of  the  promise,  the  employe  does 
not,  in  ordinary  cases,  assume  the  special  risk. 

•  •  •  Plainly  these  rules  as  guides  of  con- 
duct and  tests  of  liability  are  subject  to  chants 


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SOLVUCA  V.  RYAK  &  REILLT  CO. 


713 


in  the  exercise  ot  the  sovereign   authority  of 
the  state. 

"So,  also  with  resist  to  contributory  negli- 
gence. Aside  from  injuries  intentionally  aelf- 
in&icted  for  which  the  statute  under  considera- 
tion affords  no  compensation,  it  is  plain  that 
the  rules  of  law  upon  the  subject  in  their  bear- 
ing upon  the  employer's  responsibility  are  sub- 
ject to  legislative  change;  for  contributory 
negligence  again  involves  a  default  in  some  duty 
resting  in  the  employe  and  his  duties  are  sub- 
ject to  modification. 

"It  may  be  added,  by  way  of  reminder,  that 
the  entire  matter  of  liability  for  death  caused 
by  wrongful  act,  both  within  and  without  the 
relation  of  employer  and  employ^,  is  a  modem 
statutory  innovation,  in  which  the  states  differ 
as  to  who  may  sue,  for  whose  benefit,  and  the 
measure  of  damages. 

"But  it  is  not  necessary  to  extend  the  discus- 
sion. This  court  repeatedly  has  upheld  the  au- 
thority of  the  states  to  establish  by  legislation 
departures  from  the  fellow-servant  rule  and  oth- 
er common-law  rules  affecting  the  employer's 
liability  for  personal  injuries  to  the  employ^. 
*  *  *  The  statute  under  consideration  sets 
aside  one  body  of  rules  only  to  establish  another 
system  in  its  place.  If  the  employ^  is  no  longer 
able  to  recover  as  much  as  before  in  case  of  be- 
ing injured  through  the  employer's  negligence, 
he  is  entitled  to  moderate  compensation  in  all 
cases  of  injury,  and  has  a  certain  and  speedy 
remedy  without  the  difficulty  and  expense  of  es- 
tablishing neglij^ence  or  proving  the  amount  of 
the  damages.  Instead  of  assuming  the  entire 
consequences  of  all  ordinary  risks  of  the  occu- 
pation, he  assumes  the  consequences,  in  excess  of 
the  sciieduled  compensation,  of  risks  ordinary 
and  extraordinary.  On  the  other  hand,  if  the 
employer  is  left  without  defense  respecting  the 
question  of  fault,  he  at  the  same  time  is  assured 
uat  the  recover^  is  limited,  and  that  it  goes  di- 
rectly to  the  relief  of  the  designated  beneficiary. 
And  just  as  the  employ6's  assumption  of  ordina- 
ry risks  at  common  law  presumably  was  taken 
into  account  in  fixing  the  rate  of  wages,  so  the 
fixed  responsibility  of  the  employer,  and  the 
modified  assumption  of  risk  by  the  employ^  un- 
der the  new  system,  presumably  wiH  be  reflected 
in  the  wage  scale.  The  act  evidently  is  intended 
as  a  just  settlement  of  a  difficult  problem,  af- 
fecting one  of  the  most  important  of  social  rela- 
tions, and  it  is  to  be  judged  in  its  entirety.  We 
have  said  enough  to  demonstrate  that,  in  such 
an  adjustment,  the  particular  rules  of  the  com- 
mon law  affecting  the  subject-matter  are  not 
placed  by  the  Fourteenth  Amendment  beyond  the 
reach  of  the  lawmaking  power  of  the  state ;  and 
thus  ^e  are  brought  to  the  question  wheUier 
the  method  of  compensation  that  is  established 
■a  a  anbstitnte  tiansc<aidB  the  limits  of  permisai- 
ble  state  action. 

"We  will  consider,  first,  the  scheme  of  compen- 
sation, deferring  for  the  present  the  question  of 
the  manner  in  which  the  employer  b  required 
to  secure  payment. 

"Briefly,  the  statnte  imposes  liability  upon  the 
employer  to  make  compensation  for  disability  or 
death  of  the  employ^  resulting  from  accidental 
personal  Injury  ari/dng  out  of  and  in  the  course 
of  the  employment,  without  regard  to  fault  as 
a  cause  except  where  the  injury  or  death  is  oc- 
casioned by  the  employe's  willful  intention  to 
firoduce  it,  or  where  the  injury  results  solely 
rom  his  intoxication  while  on  duty;  it  gradu- 
ates the  compensation  for  disability  according  to 
a  prescribed  scale  based  upon  the  loss  of  earning 
power,  having  regard  to  the  previous  wage  and 
the  character  and  duration  of  the  disability; 
and  measnres  the  death  benefit  according  to  ^e 
dependency  of  the  surviving  wife,  husband,  or 
infant  children.  Perhaps  we  should  add  that  it 
lias  no  retrospective  effect,  and  applies  only  to 
'caaea  arising  some  months  after  its  passage. 

"Of  course,   we   cannot  ignore  the  question  I 
^rhether  the  new  arrangement  is  arbitrary  and' 


unreasonable,  from  the  standpoint  of  natural 
justice.  Respecting  this,  it  is  important  t«  be 
observed  that  the  act  applies  only  to  disabling 
or  fatal  personal  injuries  received  in  the  course 
of  hazardous  employment  in  gainful  occupation. 
Reduced  to  its  elements,  the  situation  to  be 
dealt  with  is  this:  Employer  and  employ^,  by 
mutual  consent,  engage  in  a  common  operation 
intended  to  be  advantageous  to  both;  the  em- 
ployg  Is  to  contribute  his  personal  services,  and 
for  these  is  to  receive  wages,  and,  ordinarily, 
nothing  more;  the  employer  is  to  furnish  plant, 
facilities,  organization,  capital,  credit,  is  to  con- 
trol and  manage  the  operation,  paying  the 
wages  and  other  expenses,  disposing  of  the 
product  at  such  prices  as  he  can  obtain,  taking 
all  the  profits,  if  any  there  be,  and  of  necessity 
bearing  the  entire  losses.  In  the  nature  of 
things,  there  Is  more  or  less  of  a  probability 
that  the  employe  may  lose  his  life  through  some 
accidental  injury  arising  out  of  the  employment, 
leaving  his  widow  or  children  deprived  of  their 
natural  support,  or  that  he  may  sustain  an  in- 
jury not  mortal,  but  resulting  in  his  total  or 
partial  disablement,  temporary  or  permanent, 
with  corresponding  impairment  of  earning  ca- 
pacity. The  physical  suffering  must  be  borne 
by  the  employe  alone;  the  laws  of  nature  pre- 
vent this  from  being  evaded  or  shifted  to  an- 
other, and  the  statute  makes  no  attempt  to  af- 
ford an  equivalent  in  compensation.  But,  he- 
sides,  there  is  the  loss  of  earning  power,  a  loss 
of  that  which  stands  to  the  employe  as  his  cap- 
ital in  trade.  This  is  a  loss  arising  out  of  the 
business,  and,  however  it  may  be  charged  up,  is 
an  expense  of  the  operation,  as  truly  as  the  cost 
of  repairing  broken  machinery  or  any  other  ex- 
pense that  ordinarily  is  paid  b^  the  employer. 
Who  is  to  bear  the  charge?  It  is  plain  that,  on 
grounds  of  natural  justice,  it  is  not  unreason-^ 
able  for  the  state,  while  relieving  the  employer 
from  responsibility  for  damages  measured  by 
common-law  standards  and  payable  in  case 
where  he  or  those  for  whose  conduct  he  is  an- 
swerable are  found  to  be  at  fault,  to  require  hhn 
to  contribute  a  reasonable  amount,  and. accord- 
ing to  a  reasonable  and  definite  scale,  by  way  of 
compensation  for  the  loss  of  earning  power  in- 
curred in  the  common  enterprise,  irrespective  of 
the  question  of  negligence,  instead  of  leaving  the 
entire  loss  to  rest  miere  it  may  chance  to  fall; 
that  is,  upon  the  injured  employe  or  his  de- 
pendents. Nor  can  it  be  deemed  arbitrary  and 
unreasonable,  from  the  standpoint  of  the  em- 
ploye's interest,  to  supplant  a  system  under 
which  he  assumed  the  entire  risk  of  injury  in 
ordinary  cases,  and  in  others  had  a  right  to  re- 
cover an  amount  more  or  less  speculative  upon 
proving  facts  of  negligence  that  often  were  diffi- 
cult to  prove,  and  substitute  a  system  under 
which  in  all  ordinary  cases  of  accidental  injury, 
he  is  sare_  of  a  definite  and  easily  ascertainea 
compensation,  not  being  obliged  to  assume  the 
entire  loss  in  any  case,  but  m  all  cases  assum- 
ing any  loss  beyond  the  prescribed  scale. 

"Much  emphasis  is  laid  upcm  the  criticism 
that  the  act  creates  liability  without  fault.  Thia 
is  sufficiently  answeied  b^  what  has  been  said, 
but  we  ma^  add  that  liability  without  fault  is  not 
a  novelty  m  the  law.  The  common-law  liabili^ 
of  the  carrier,  of  the  innkeeper,  of  him  who  em- 

£loyed  fire  or  other  daiigerous  agency  or  har- 
ored  a  mischievous  animal,  was  not  dependent 
altogether  upon  questions  of  fault  or  negligence. 
Statutes  imposiiug  liability  without  fault  have 
been  sustained.    •    •    • 

"We  have  referred  to  the  maxim  respondeat 
superior.  In  a  well-known  EiDgUsh  case.  Hall  v. 
Smith,  2  Bing.  156, 160,  this  maxim  waa  said  1^ 
Best,  C.  J.,  to  be  'bottomed  on  this  priiuaple, 
that  he  who  expects  to  derive  advantage  from 
an  act  which  is  done  by  another  for  him  must  an- 
swer for  any  injury  which  a  third  person  may 
sustain  from  it.'  And  this  view  has  been  adopt- 
ed in  New  lork.  Cardot  v.  Barney,  63  N.  X. 
281.  287  (^  Am.  Bep.  633].    The  provigicn  for 


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101  ATLANTIC  REPOKTEIK 


(Md. 


compulsory  cumpengation,  in  the  act  under  con- 
sideration,  cannot  be  deemed  to  be  an  arbitrary 
and  unreasonable  application  of  the  principle,  so 
as  to  amount  to  a  deprivation  of  the  employer's 
property  without  due  process  of  law.  The  pe- 
cuniary loss  resulting  from  the  employe's  death 
or  disablement  must  fall  somewhere.  It  results 
from  something  done  in  the  course  of  an  opera- 
tion from  which  the  employer  expects  to  derive 
a  profit.  In  excluding  the  question  of  fault  as  a 
cause  of  the  injury,  the  act  in  effect  disregards 
the  proximate  cause  and  looks  to  one  more  re- 
mote— the  primary  cause,  as  it  may  be  deemed — 
and  that  is,  the  employment  itself.  For  this,  both 
parties  are  responsible,  since  they  voluntarily  en- 
gage in  it  as  coadventurers,  with  personal  in- 
Jury  to  the  employ^  as  a  probable  and  foreseen 
result.  In  ignoring  any  possible  negligence  of 
the  employs  producing  or  contributing  to  the  in- 
jury, the  lawmaker  reasonabljr  may  have  been 
influenced  by  the  belief  that,  in  modern  indus- 
try, the  utmost  diligence  in  the  employer's  serv- 
ice is  in  some  degree  inconsistent  with  adequate 
care  on  the  part  of  the  employ^  for  his  own  safe- 
ty ;  that  the  more  intently  he  devotes  himself  to 
the  work,  the  less  he  can  take  precautions  for 
his  own  security.  And  it  is  evident  that  the  con- 
sequences of  a  disabling  or  fatal  injury  are  pre- 
cisely the  same  to  the  parties  immediately  af- 
fected, and  to  the  community,  whether  the  proxi- 
mate cause  be  culpable  or  innocent  Viewing 
the  entire  matter,  it  cannot  be  pronounced  arbi- 
trary and  unreasonable  for  the  state  to  impose 
npon  the  employer  the  absolute  duty  of  making  a 
moderate  and  definite  compensation  in  money  to 
every  disabled  employ^,  or,  in  case  of  his  death, 
to  those  who  were  entitled  to  look  to  him  for 
support,  in  lieu  of  the  common-law  liability  con- 
fined to  cases  of  negligence.    *    •    • 

"Bat,  it  is  Raid,  the  statute  strikes  at  the 
fundamentals  of  constitutional  freedom  of  con- 
tract ;  and  we  are  referred  to  two  recent  declara- 
tions by  this  court.  The  first  ia  this:  'Included 
in  the  right  of  personal  liberty  and  the  right  of 
private  property — ^partaking  of  the  nature  of 
each — is  the  right  to  make  contracts  for  the  ac- 
quisition of  property.  Chief  among  such  con- 
tacts is  that  of  personal  employment,  by  which 
labor  and  other  services  are  exchanged  for  mon- 
ey or  other  forms  of  property.  If  this  right  be 
struck  down  or  arbitrarily  interfered  with,  there 
is  a  substantial  impairment  of  liberty  in  the 
long-established  constitutional  sense.*  Coppage 
T.  Kansas,  236  V.  S.  1,  14  [35  Sup.  Ct  240. 
243  (69  L.  EM.  441,  L.  R.  A.  1915C,  960)].  And 
this  is  the  other:  'It  requires  no  argument  to 
show  that  the  fight  to  work  for  a  living  in  the 
common  occupations  of  the  community  ft  of  the 
Ter^  essence  of  the  personal  freedom  and  oppor- 
tunity that  it  was  the  purpose  of  the  (Four- 
teenth) Amendment  to  secure.'  Truax  v.  Raich, 
239  U.  S.  33,  41  [36  Sup.  Ct.  T,  10  (GO  L.  Bd. 
131,  L.  B.  A.  1916D,  645,  Ann.  Gas.  1917B, 
283)]. 

"It  is  not  our  purpose  to  qualify  or  weaken  ei- 
ther of  these  declarations  in  the  least.  And  we 
recognize  that  the  legislation  under  review  does 
measurably  limit  the  freedom  of  employer  and 
employ^  to  agree  respecting  the  terms  of  em- 
ployment, and  that  it  cannot  be  supported  ex- 
cept on  tne  ground  that  it  is  a  reasonable  exer- 
cise of  the  police  power  of  the  state.  In  our 
opinion  it  Is  fairly  supportable  upon  that 
ground.  And  for  this  reason:  The  subject-mat- 
ter in  respect  of  which  freedom  of  contract  is 
restricted  is  the  matter  of  compensation  for  hu- 
man life  or  limb  lost  or  disability  Incurred  in  the 
course  of  hazardous  employment,  and  the  public 
has  a  direct  interest  in  this  as  affecting  the  com- 
mon welfare.  'The  whole  is  no  greater  than  the 
sum  of  all  the  parts,  and  when  the  individual 
health,  safety,  and  welfare  are  sacrificed  or  neg- 
lected, the  state  must  suffer.'  Holden  v.  Hardy, 
169  U.  S.  366,  397  [18  Sup.  Ct.  383,  390  (42  U 
Etl.  780)1.  It  cannot  be  doubted  that  the  state 
may  pr<^ibit  and  ponish  self-maiming  and  at- 


tempts at  suicide;  it  may  prohibit  a  ntan  from 
bartering  away  his  life  or  his  personal  g«curity ; 
indeed,  the  right  to  these  is  often  declared,  in 
bills  of  rights,  to  be  'natural  and  inalienable' ; 
and  the  authority  to  prohibit  contracts  made  in 
derogation  of  a  lawfully  established  policy  of 
the  state  respecting  compensation  for  accidental 
death  or  disabling  personal  injury  is  equally 
clear.  *  •  •  xHig  statute  does  not  concern  it- 
self with  measures  of  prevention,  which  presum- 
ably are  embraced  in  other  laws.  But  the  inter- 
est of  the  public  is  not  confined  to  these.  One 
of  the  grounds  of  its  concern  with  the  continued 
life  and  earning  power  of  the  individual  is  its 
interest  in  the  prevention  of  pauperism,  with  its 
concomitants  of  vice  and  crime.  And,  in  our 
opinion,  laws  regulating  the  responsibili^  of  em- 
ployers for  the  injury  or  death  of  employes, 
arising  out  of  the  employment,  bear  so  close  a 
relation  to  the  protection  of  the  lives  and  safety 
of  those  concerned  that  they  properly  may  be  re- 
garded as  coming  within  Uie  category  of  police 
regulations.    •    ♦    • 

"No  question  is  made  but  that  the  procedural 
provisions  of  the  act  are  amply  adequate  to  af- 
ford the  notice  and  opportunity  to  be  heard  re- 
quired by  the  Fourteenth  Amendment.    »    *    • 

"The  objection  under  the  'equal  protection' 
clause  is  not  pressed.  The  only  apparent  basis 
for  it  is  in  exclusion  of  farm  laborers  and  do- 
mestic servants  from  the  scheme.  But,  mani- 
festly, this  cannot  be  judicially  declared  to  be 
an  arbitrary  classification,  since  it  reasonably 
may  be  considered  that  the  risks  inherent  in  these 
occupations  are  exceptionally  patent,  simple,  and 
familiar.    •    •    • 

"We  conclude  that  the  prescribed  scheme  of 
compulsory  compensation  is  not  repugnant  to  the 
provisions  of  the  Fourteenth  Amendment,  and 
are  brought  to  consider,  next,  the  manner  in 
which  the  employer  is  required  to  secure  pay- 
ment of  the  compensation.  By  section  50,  this 
may  be  done  in  one  of  three  ways:  (a)  State 
insurance;  (b)  insurance  with  an  authorized  in- 
surance corporation  or  association ;  or  (c)  by  a 
deposit  of  securities.    •    •    • 

The  system  of  compulsory  compensation  hav- 
ing been  found  to  be  within  the  power  of  the 
stote,  it  is  within  the  limits  of  i>ermissible  rego- 
lation,  in  aid  of  the  system,  to  require  the  em- 
ployer to  furnish  satisfactory  proof  of  his  finan- 
cial ability  to  pay  the  compensation,  and  to  de- 
posit a  reasonable  amount  of  securities  for  that 
purpose.  The  third  clause  of  section  50  has  not 
been,  and  presumably  will  not  be,  construed  so 
as  to  give  an  unbridled  discretion  to  the  com- 
mission ;  nor  is  it  to  be  presumed  that  solvent 
employers  will  be  prevented  from  becomins  self- 
insurers  on  reasonable  terms.    •    •    • 

"This  being  so,  it  is  obvious  that  this  case 
presents  no  question  as  to  whether  the  state 
might,  consistently  vrith  the  Fourteenth  Amend- 
ment, compel  employers  to  effect  insurance  ac- 
cording to  either  of  the  plans  mentioned  in  the 
first  and  second  clsuscs.  There  is  no  such  com- 
pulsion, since  self-insurance  under  the  third 
clause  presumably  is  open  to  all  employers  on 
reasonable  terms  that  it  is  within  the  power  of 
the  state  to  impose.  Regarded  as  optional  ai^ 
rangements,  for  acceptance  or  rejection  by  em- 
ployers unwilling  to  comply  with  that  dause, 
the  plans  of  insurance  are  unexceptionable  from 
the  constitutional  standpoint.  Manifestly,  the 
employe  is  not  injuriously  affected  in  a  consti- 
tutional sense  by  the  provisions  giving  to  the 
employer  an  option  to  secure  payment  of  the 
compensation  in  either  of  the  modes  prescribed, 
for  there  is  no  presumption  that  either  will 
prove  inadequate  to  safeguard  the  employe's  in- 
terests." 

See,  also,  Hawkins  v.  Bleakly,  243  TT.  S. 
210,  37  S.  Ct.  255,  61  L.  Ed.  678;  Mountniu 
Timber  Co.  v.  Washington.  243  U.  S.  219.  87 
S.  Ct.  260.  «l  I..  Ed.  eS5;    Jensen  v.  South- 


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SOLVUCA  T.  BY  AN  &  REILLY  CO. 


715 


em  Pacific  Ck).,  215  N.  T,  514,  109  N.  E.  600 
11/.  R.  A.  1916A,  403,  Ann.  Gas.  1916B,  i76]; 
State  v.  Clausen,  65  Wash.  156, 117  Pac.  1101, 
37  li.  R.  A.  (N.  S.)  466;  Yaple  V.  Creamer,  85 
Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.) 
694;  Day  v.  State,  7  GUI,  321. 

In  the  case  of  Am.  Coal  Co.  T.  Allegany 
Co.,  128  Md.  564,  98  Atl.  143,  the  act  of  1910, 
chapter  153,  as  amended  by  the  act  of  1912, 
chapter  445,  which  provides  for  the  creation 
of  a  "miners'  and  operators'  co-operative  re- 
lief fund"  for  the  relief  of  employes  Injured 
In  coal  and  day  mining  In  Allegany  a)id  Gar- 
rett cotmtles  and  the  dependents  of  employes 
injnred  or  killed  in  such  mining,  was  at- 
tadved  on  the  several  grounds  mainly  relied 
on  by  the  appellant  In  this  case,  bnt  this 
court  held  that  the  act  was  free  from  the 
constitutional  objections  urged  against  it, 
and  well  within  the  police  power  of  the  state. 
In  the  course  of  the  opinion  Judge  Burke 
said: 

"Hiere  can  be  no  doubt  that  the  Legislature  in- 
tended by  the  act  of  1910,  chapter  1^,  to  change 
the  rules  of  the  oommon  law,  in  the  classes  of 
industry  referred  to  in  the  act,  theretofore  pre- 
vailing in  this  state  governing  the  recovery  for 
work  accidents.  It  may  be  said  that  it  is  now 
generally  recognized  that  the  application  of  the 
old  rules  governing  the  relation  of  master  and 
servant  in  certain  classes  of  occupation  are  un- 
suitable to  our  changed  industrial  and  corporate 
condition.  The  application  of  the  principles  of 
the  common  law  to  suits  for  personal  injuries 
sustained  in  hazardous  employments  resulted  in 
many  cases  in  injustice  to  the  parties  concerned 
as  well  as  to  the  state.  It  filled  the  courts  with 
litigation ;  it  became  the  fruitful  source  of  per- 
jury; it  engendered  bitterness  between  employ- 
er and  employs;  it  resulted  in  great  economic 
waste;  and  it  turned  out  an  army  of  maimed 
and  helpless  people  as  dependents  upon  the  char- 
ity of  friends  or  the  public.  The  operation  of 
these  rules  came  to  be  regarded  as  'foolish, 
wasteful,  inefficient,  and  barbarous';  and  the  na- 
tional government  and  a  number  of  the  states 
have  now  replaced  them  by  efficient  and  humane 
laws." 

[1, 2]  The  appellant  further  insists  that  the 
act  In  question  violates  section  40  of  article 
3,  and  section  6  of  article  15,  of  the  Consti- 
tution of  this  state,  prohibiting  the  taking 
of  pr<^)erty  without  just  compensation  agreed 
upon  between  the  parties,  or  awarded  by  a 
jury,  and  providing  for  the  preservation  of 
trial  by  Jury  of  all  Issues  of  fact  In  civil  pro- 
ceedings. The  act  expressly  provides  for  a 
Jury  trial  on  appeals  from  orders  of  the  com- 
mission, and  in  the  case  of  Frazler  v.  Leas, 
127  Md.  572,  96  Aa  764,  this  court  hold  that 
on  appeal  either  party  bad  the  right  to  call 
witnesses  In  support  of  his  case,  and  that  the 
Legislature  evidently  Intended  to  secure  the 
party  appealing  the  benefit  of  section  6,  art. 
15,  of  the  Constitution,  providing  for  trial 
by  Jury  of  aill  issues  of  fact  in  dvil  proceed- 
ings, etc.  In  the  case  of  Steuart  v.  Balti- 
more, 7  Md.  500,  the  court  said : 

"These  cases  fully  establish  the  prindple  that 
where  a  law  secures  the  trial  by  jury  upon  an 
appeal,  it  is  no  violation  of  a  constitutional  pro- 
vision for  guarding  that  right,  although  such  law 
may  provide  for  a  primary  trial  withuut  the 
intervention  of  a  jury.    This  is  upon  the  ground 


that  the  party,  if  he  thinks  proper,  can  have 
his  case  dedded  by  a  jury  before  it  is  finally 
settled" 

— and  In  the  case  of  Ulman  v.  Baltimore,  72 
Md.  609,  21  Atl.  711,  11  L.  R.  A.  224,  Judge 
McSherry,  speaking  for  the  court,  said: 

"Had  the  act  of  1874  gone  further  and  em- 
powered the  dty  to  make  provision  by  ordinance 
lor  giving  notice  to,  and  allowing  a  hearing  of, 
the  parties  to  be  affected  by  the  paving  of  a 
street,  either  before  the  dty  commissioner,  or 
some  other  local  tribunal,  and  tiien,  for  an  ap- 
peal to  the  city  court  where  a  trial  by  jury 
could  be  had,  it  cannot  be  doubted  that  the  pro- 
ceedings would  have  been  in  accord  with  both 
the  federal  and  state  Constitutions.  Steuart  v. 
Baltimore.  7  Md.  500 ;  Davidson  v.  New  Or- 
leans, 96  U.  S.  97  [24  U  Ed.  616.]" 

[3]  It  is  also  urged  on  behalf  of  the  ap- 
pellant that  the  act  contravenes  the  provi- 
sion of  section  1  of  article  4  of  the  Consti- 
tution of  the  state,  which  vests  the  judldal 
power  of  the  state  In  the  Conrt  of  Appeals, 
circuit  court,  orphans*  court,  and  the  courts 
for  Baltimore  dty  provided  for  In  said  ar- 
ticle, and  artide  8  of  the  Dedaration  of 
Bights,  which  declares  that: 

"The  legislative,  executive  and  judidal  pow- 
ers of  government  ought  to  be  forever  separate 
and  distinct  from  each  other." 

It  Is  said  in  6  R.  C.  L.  §  159: 

"The  distinction  between  legislative  or  minis- 
terial functions  andjndidal  functions  is  diffi- 
cult to  point  out.  What  is  a  judicial  function 
does  not  depend  solely  on  the  mental  operation 
by  which  it  is  performed  or  the  importance  of 
the  act.  In  solving  this  question,  due  regard 
must  be  bad  to  the  organic  law  of  the  state  and 
the  division  of  powers  of  government.  In  the 
discbarge  of  executive  and  legislative  duties,  the 
exercise  of  discretion  and  judgment  of  the  high- 
est order  is  necessary,  and  matters  of  the  great- 
est weight  and  importance  are  dealt  with.  It 
is  not  enough  to  make  a  function  judidal  that 
it  requires  discretion,  deliberation,  thought,  and 
judgment.  It  must  be  the  exercise  of  discretion 
and  judgment  within  the  subdivision  of  the  sov- 
ereign power  which  belongs  to  the  judiciary,  or, 
at  least,  which  does  not  belong  to  the  legislative 
or  executive  department.  If  the  matter,  in  re- 
spect to  which  it  is  exerdsed,  belongs  to  either 
of  the  two  last-named  departments  of  govern- 
ment, it  is  not  judicial.  As  to  what  is  judicial 
and  what  is  not,  seems  to  be  better  indicated 
by  the  nature  of  a  thing  than  its  d^nition." 

In  the  case  of  Shafer  v.  Mumma,  17  Md. 
331,  79  Am.  Dec.  656,  Chief  Judge  Le  Grand 
said: 

"But  it  is  said,  on  behalf  of  the  plaintiffs,  that 
since  the  adoption  of  the  present  state  Consti- 
tution, the  mayor  of  Hagerstown  could  not  try 
and  fine  under  the  ordinance,  because  the  exer- 
cise of  such  power  is  but  tne  exertion  of  the 
judidal  power,  which,  by  the  Constitution,  is 
confined  to  certain  specified  classes  of  persons, 
and  that  the  mayor  of  Hagerstown  is  not  in- 
duded  in  the  enumeration. 

"This  argument  would  be  entitled  to  great 
weight,  if  we  thought  the  power  exercised  by  the 
defendant  was,  in  the  sense  of  the  Constitution, 
a  part  of  the  judicial  power.  But  we  entertain 
no  such  opinion.  We  regard  it  as  but  a  part 
of  the  police  power,  as  contradistinguished  from 
the  regular  judiciary  powers  of  the  state.  FVom 
time  immemorial,  a  distinction  has  been  observ- 
ed between  the  two,  both  in  England  and  this 
country.  It  would  be  next  to,  if  not  quite  im- 
possible, for  a  lorge  city  like  Baltimore  to  pre- 
serve order  within  its  limits,  preserve  the  streets 
free  from  interruption,  indeed  to  do  most  of  the 


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thousand  things  necessary  to  be  done,  to  carr^ 
on  its  various  and  indispensable  operations,  if 
in  every  case  it  were  a  necessary  preliminary 
that  the  offender  should  be  regularly  prosecuted 
by  presentment,  Indictment,  and  trial.  It  has 
always  been  understood  that,  under  the  police 
power,  persons  disturUng  the  public  peace,  per- 
sons guilty  of  a  nuisance,  or  obstructing  the 
public  highways,  and  the  like  offenses,  may  be 
Bummarily  arrested  and  fined,  without  any  In- 
fraction of  that  part  of  the  Constitution  which 
apportions  the  administration  of  the  judicial 
power,  strictly  as  such.  We  regard  the  power 
conferred  on  the  corporation  of  Hagerstown,  to 
summarily  punish  persons  of  the  description  the 
appellant,  Elmira,  is  admitted  to  have  been,  aa 
falling  directly  within  the  definition  of  a  police 
regulation." 

The  same  objection  was  urged  against  the 
Workmen's  Conipensation  Law  of  Wisconsin, 
but  the  Supreme  Court  of  Wisconsin,  in 
Borgnia  v.  Falk  Co.,  147  Wis.  327,  133  N.  W. 
209,  37  L  R.  A.  (N.  S.)  489,  sustained  the 
act,  and  said  In  reference  to  that  objection: 

"The  next  important  contention  is  that  the 
law  ia  unconstitutional  because  it  vests  judicial 
power  in  a  body  which  is  not  a  court  and  is  not 
composed  of  men  elected  by  the  people,  in  vio- 
lation of  those  clauses  of  the  state  Constitu- 
tion which  vest  the  judicial  power  in  certain 
courts  and  provide  (or  the  election  of  judges  by 
the  people,  as  well  as  in  violation  of  the  con- 
stitutional guaranties  of  due  process  of  law.  It 
was  suggested  at  the  argument  that  the  Indus- 
trial Commission  might  perhaps  be  held  to  be 
a  court  of  conciliation,  as  authorized  to  be  cre- 
ated by  section  16  of  article  7  of  the  state  Con- 
stitution; but  we  do  not  find  it  necessary  to 
consider  or  decide  this  contention.  We  do  not 
consider  the  Industrial  Commission  a  court,  nor 
do  we  construe  the  act  as  vesting  in  the  commis- 
sion judicial  powers  within  the  meaning  of  the 
Constitution.  It  is  an  administrative  body  or 
arm  of  the  government,  which  in  the  course  of 
its  administration  of  a  law  is  empowered  to 
ascertain  some  questions  of  fact  and  apply  the 
existing  law  thereto,  and  in  so  doing  acts  quasi 
judicially;  but  it  is  not  thereby  vested  with  ju- 
dicial power  in  tlie  constitutional  sense. 

"There  are  many  such  administrative  bodies 
or  commissions,  and  with  the  increasing  com- 
plexity of  modem  government  they  seem  likely 
to  increase  rather  than  diminisE  Bxamplea 
mav  be  easily  thought  of.  Town  boards,  boards 
of  nealth,  boards  of  review,  boards  of  equaliza- 
tion, railroad  rate  commissions,  and  public  util- 
ity commissions  all  come  within  this  class. 
They  perform  very  important  duties  in  our 
scheme  of  government,  but  they  are  not  Legia- 
latures  of  courts." 

The  Workmen's  Compensation  Law,  which 
was  passed  in  the  exercise  of  the  police  pow- 
er of  this  state,  creates  a  commission  known 
as  the  State  Industrial  Accident  Commission 
to  administer  the  provisions  of  the  act  In 
the  discharge  of  its  duties  and  the  exertion 
of  its  powers  it  is  required  to  exercise  judg- 
ment and  discretion,  and  to  apply  the  law  to 
the  facts  in  each  particular  case,  but  It  is 
dear  that  the  Legislature  never  Intended  to 
constitute  the  commission  a  court,  or  to 
confer  upon  It  the  judicial  power  of  the 
state  within  the  meaning  of  the  constitution- 
al provisions  referred  to. 

It  follows  from  the  views  we  have  express- 
ed that  the  demurrer  to  the  plea  of  the  de- 


fendant was   properly   overruled,  and  that 
the  judgment  of  the  court  below  must  be 
affirmed. 
Judgment  aflSrmed,  with  oosta. 

'  (ML  Hi.  30) 

LEE,  Water  Engineer,  et  aL  v.  LEITCH  et  sL 

(No.  49.) 
(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  MANDAiras  «=373(1)  —  Dtnr  or  Obuoa- 

TION. 

Rights  and  duties  are  correlative,  and  nnle» 
there  was  a  duty  or  obligation  upon  the  water 
board  of  a  city  to  have  installed  the  water  in  a 
residence  tho  property  owners  were  not  entitled 
to  writ  of  mandamus  against  the  board. 

2.  Municipal  Cobfohationb  «=3661(1)— €on- 
IBOL  OvEB  Streets. 

The  Mayor  and  City  Council  of  Baltimore 
have  full  and  complete  control  over  the  streets 
and  highways  of  the  city,  the  power  to  maintain 
and  r^ulate  tho  use  of  the  streets  being  a  trust 
for  the  benefit  of  the  general  pnblic  conferred 
on  the  dty  by  its  charter. 

3.  MtTNICIFAI.    CORFOSATIOHS    9=9111(1)— OB- 
DINANCE8— VAUDITY. 

Ordinances  of  the  city  of  Baltimore  giving 
the  water  board  power  to  mako  and  pass  rules 
and  regulations  for  its  government,  the  laying 
and  tapping  of  -pipes,  for  the  protection  and 
preservation  of  the  pipes,  or  other  property  and 
appurtenances  of  the  waterworks,  etc.,  pass- 
ed in  pursuance  of  power  granted  by  the  state, 
were  valid  local  laws. 

4.  Waters  and  Water  Cottrsks  «=»202— Ob< 
DiNANCEs—VAXiDrrT— Reasonableness. 

Rule  14  of  the  water  board  of  Baltimore 
city,  passed  in  1896  as  an  expression  of  the  long- 
established  policy  of  the  city,  providing  that 
whenever  an  application  is  made  to  the  depart- 
ment for  the  introduction  of  water  for  any  prem- 
ises, the  street  being  covered  with  asphalt  pave- 
ment, etc,  the  department  will  not  introduce 
water  untu  the  applicant  has  obtained  a  permit 
from  the  city  commissioner's  department,  in- 
dorsed by  the  mayor,  for  the  water  department 
to  open  the  street,  is  not  void  as  unreasonable. 
K.  Municipal  Corporations  <3=362  —  Ordi- 
nance DxixaATisa  Poweb  to  Wateb 
Board. 

The  grant  at  power  to  the  water  board  to 
make  such  rule,  made  by  Baltimore  City  Code 
1906,  art  40,  providing  that  the  water  board 
shall  have  power  to  make  and  pass  all  rules 
and  regulations  for  the  laying  and  tapping  of 
pipes,  etc.,  was  not  an  unlawihil  delegation  of 
power  to  the  water  board. 
6.  Mandauub  «=»7S(1)— Rioht  to  Warr. 

In  view  of  rule  14  of  the  water  board  of  B«l- 
timore  city,  providing  that  whenever  an  appli- 
cation is  made  for  the  introduction  of  water 
for  any  premises,  the  street  being  covered  with 
asphalt  pavement,  etc.,  the  water  will  not  bo  in- 
troduced until  the  applicant  shall  have  obtained 
a  permit  from  the  city  commissioner's  depart- 
ment, indorsed  by  the  mayor,  applicants  for  the 
introduction  of  water  into  their  premises  which 
fronted  on  a  street  with  an  asphalt  paving  were 
not  entitled  to  mandamus  to  compel  the  water 
board  to  introduce  the  water,  the  mayor  having 
refused  to  indorse  tho  permit  pursuant  to  a  long- 
established  policy  of  his  office  not  to  permit  the 
cutting  up  of  improved  paving  to  lay  pipes. 

Appeal  from  Baltimore  City  Court;  John 
J.  Dobler,  Judgre. 

Petition  for  mandamus  by  Jessie  S.  I<eltdi 
and  Estelle  Snow  Wilcox  against  Walter  E. 
Lee,  water  engineer  of  Baltimore  city,  and 


tKoTot  other  cases  sea  same  topic  and  KBY-NUMBGR  In  all  Key-Numbered  Digests  and  Indexss 

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liEE  y.  LEITCH 


717 


Walter  E.  Lee  and  others,  constitntlng  the 
water  board  of  the  municipal  corporation 
known  as  the  Mayor  and  City  Council  of 
Baltimore.  From  an  order  that  writ  Issue 
against  defendants,  they  appeal.  Order  re- 
versed and  petition  dismissed. 

Argued  before  BOIT),  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNKR, 
STOCKBRIDGE,  and  CONSTABLE.  JJ. 

BenJ.  H.  McKlndless,  Asst.  City  Sol.,  of 
Baltimore  (S.  S.  Field,  City  Sol.,  of  Bald- 
more,  on  the  brief),  for  appellants.  William 
Edgar  Byrd  and  Charles  Lee  Merriken,  both 
of  Baltimore  (Frank  M.  Merriken,  of  Balti- 
more, on  the  brief),  for  appellees. 

BURKE,  J.  The  controllbig  facts  of  this 
case,  briefly  stated,  are  these:  The  appellees; 
Jessie  S.  Leltch  and  Estelle  Snow  Wilcox, 
are  the  owners  of  a  lot  of  ground  on  Liberty 
Heights  avenue,  in  Baltimore  CII7,  located 
185  feet  west  of  Carsdale  avenue.  They  ac- 
qolred  title  to  this  lot  by  a  deed  from  the 
Forest  Park  Company  of  Baltimore  dty,  dat- 
ed February  7,  1916.  The  deed  contained  a 
description  of  the  property  conveyed  and  in 
it  the  following  clause  appears: 

"That  all  right,  title,  and  Interest  In  and  to 
the  avenues,  streets,  roads,  lanes,  sidewalks, 
alleys,  or  paths,  as  the  same  are  laid  out  and 
shown  on  the  plat  of  the  company's  property  fil- 
ed among  the  land  records  of  Baltimore  city, 
in  Liber  S  C  L,  No.  2888,  folio  60S,  and  which 
may  constitute  one  or  more  of  the  line  or  lines 
of  the  lot  hereby  intended  to  be  conveyed,  are 
hereby  expressly  reserved  by  the  company,  its 
sacccsaors  and  assigns,  subject,  neverthdess, 
to  a  right  of  way  to  the  said  grantees,  the  sur- 
vivor uiereof,  their  assigns,  and  the  heirs  and 
assigns  of  the  survivor,  over  and  upon  the  said 
avenues,  streets,  roads,  lanes,  sidewalks,  alleys, 
or  paths  until  the  same  shall  be  condemned  for 
pnblic  nse;  and  that  all  references  to  or  mention 
-of  avenues  streets,  roads,  lanes,  sidewalks,  al- 
leys, or  paths  in  this  deed  will  be  and  are  for 
the  purpose  of  description  only,  and  not  for  the 
purpose  of  dedication." 

One  of  the  alleys  referred  to  Is  the  deed 
is  In  the  rear  of  tiie  appellees'  propetty,  and 
mns  to  Carsdale  avenue,  which  is  a  macad- 
am street.  This  alley,  according  to  the  un- 
derstanding of  Henry  W.  Webb,  the  vice 
president  of  the  Forest  Park  Company,  and 
who  had  charge  of  the  active  management  of 
the  affairs  of  the  company,  was  laid  out  to 
serve  the  houses  fronting  on  Liberty  Heignts 
avenue.  Liberty  Heights  avenue  was  paved 
t>y  the  State  Roads  Commission,  and  tnmed 
over  to  and  accepted  by  the  city  in  April, 
1915.  Robert  M.  Cooksey,  the  highways  engi- 
neer of  Baltimore  city,  said  the  pavement  of 
Liberty  Heights  avenue  is  what  is  called 
"sheet  asphalt,  vitrified  brick  street ;  that  is, 
.sheet  asphalt  on  the  outward  portions,  out- 
side of  the  tracks,  and  then  vlfitled  l.rick  in 
the  railway  area,  and  the  vitrified  brick  cov- 
ers that  portion  from  outer  rail  to  outer  rail, 
and  the  dnmnty  space  Is  vitrified  brick."  It 
Is  a  high-class  pavement,  and  the  avenue  had 
been  In  the  control  of  the  city  about  18 
months  before  the  commencement  of  this  suit 


Section  37,  art  91,  of  the  Code,  provides 

that: 

"No  openine  shall  be  made  in  any  such  high- 
way, nor  shall  any  structure  be  placed  thereon, 
nor  shall  any  structure  which  has  been  placed 
thereon  be  changed  or  renewed,  except  in  ac- 
cordance with  a  permit  from  the  commission, 
which  shall  exercise  comi>Iete  control  over  such 
highways,  except  as  herein  otherwise  provided. 
No  state  highway  shall  be  dug  up  for  laying  or 
placing  pipes,  sewers,  poles,  wires  or  railways, 
or  for  other  purposes,  and  no  trees  shall  be 
planted  or  removed  or  obstruction  placed  there- 
on without  the  written  permit  of  the  state  roads 
commission,  or  its  duly  authorized  agent,  and 
then  only  in  accordance  with  the  regulations  of 
said  commission;  and  the  work  shall  be  done 
under  the  supervision  and  to  the  satisfaction  of 
said  commission." 

An  opening  was  made  in  Liberty  Heights 
avenue  in  1914,  while  the  avenue  was  under 
the  Jurisdiction  of  the  State  Roads  Commis- 
sion, In  order  to  Install  water  in  the  house 
of  Jesse  Hamburger,  which  adjoins  tue 
propoty  of  the  appellees.  The  precise  dr- 
cnmstances  under  which  this  was  permitted 
do  not  appear,  bnt  we  will  assume  it  was 
done  with  the  assent  of  the  State  Roads  Com- 
mission. 

The  dty  water  main  Is  located  In  the  bed 
of  Liberty  Heights  avenue  at  a  distance  of 
about  seven  feet  from  the  curb,  and  at  the 
time  the  appellees  purchased  their  property 
they  were  assured  by  an  agent  of  the  Forest 
Park  Company  that  water  connection  had 
been  made  with  the  dty  main  to  the  euro 
line.  No  such  representation  to  this  effect 
was  made  by  any  ofiidal  or  employe  of  the 
dty,  and  such  representation  made  to  the 
appellees  was  unknown  to  the  dty.  The  ap- 
{)ellees  made  no  Investigation  or  Inquiry  to 
ascertain  the  truth  of  the  representation.  Its 
falsity  conid  have  been  readily  discovered  by 
a  simple  Inquiry  of  the  water  board.  The 
appellees  began  the  erection  of  a  dwelling 
house  upon  the  lot,  and  it  was  then  discover- 
ed that  the  water  connection  had  not  been 
made.  They  applied  for  a  permit  to  make 
the  connection  with  the  main  in  the  bed  of 
Liberty  Heights  avenue.  The  installation 
involved  the  opening  or  cutting  of  this  re- 
cently laid  high-dasa  pavement,  and  the  dty 
authorities  declined  to  grant  the  permit  The 
ground  of  thdr  refusal  is  stated  in  two  let- 
ters of  Mayor  Preston  to  Mr.  Charles  Lee 
Merriken,  attorney  for  the  appellees,  dated, 
respectively,  August  19  and  September  20, 
1916,  and  in  the  testimony  of  the  mayor  and 
that  of  Mr.  Cooksey,  the  highways  engineer. 
Mayor  Preston  had  been  fully  advised  by  Mr. 
Merriken  as  to  the  facts  attending  the  appli- 
cation for  the  permit,  and  In  bis  letter  of 
August  19th  said: 

"I  have  your  letter  of  August  18th.  I  really 
am  placed  in  a  very  embarrassing  position  abont 
this  case  and  a  good  many  other  similar  ones. 
I  have  to  make  a  definite  statement  to  the  public 
and  property  owners,  and  am  compelled  to  live 
up  to  it  I  have  no  doubt  that  the  water  can 
l>e  gotten  in  the  back  way  of  the  property  of 
Mrs.  Jessie  S.  Leltch,  on  the  north  side  of  Lib- 
erty Heights  avenue,  a  block  and  a  half  west  of 
Garrison  avenue,  at  perhaps  additional  cost,  hot 


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Ofd. 


do  not  see  how  we  can  cut  the  improved  paving 
there  at  this  time.  I  have  uniformly  declined 
to  do  this  in  hundreds  of  cases. 

"Perhaps,  if  you  take  the  matter  up  with  Mr. 
Lee.  water  engineer,  or  the  construction  division 
of  the  water  department,  some  way  can  be  found 
whereby  the  water  can  be  gotten  Into  the  house 
from  the  rear." 

On  August  29th,  Mr.  Merriken  replied 
stating  that  It  would  cost  $200  to  Introduce 
the  water  through  the  alley  in  the  rear  of  the 
appellees'  property,  and  again  urged  the 
granting  of  tlie  permit  In  reply  to  this  the 
mayor  wrote  as  follows  on  September  20th: 

"I  have  your  letter  of  September  19th.  I 
have  no  doubt  that  the  water  department  will 
permit  Mrs.  Leitcb  to  tap  tho  supply  pipe  of 
her  neighbor.  I  can  see  no  objection  to  this 
plan,  provided  she  pay  the  usual  water  charges. 
The  tunneling  suggested  by  you  would  involve 
opening  the  street  at  tho  main.  I  regret  to  have 
to  stand  to  our  guns  on  these  matters,  but  I 
have  made  no  exception  in  any  case.  Of  course, 
where  there  has  been  injury  to  tho  surface  of 
the  street,  breaks  in  the  mains,  where  sewer 
lines  have  to  bo  opened,  repairs  have  to  be  made, 
and  in  these  cases  water  is  allowed  to  be  intro- 
duced, because  it  does  not  involve  the  independ- 
ent cutting  of  the  streets.  I  have  not  allowed 
any  exception  to  be  made  to  this  rule,  and  if  it 
baa  been  done  it  is  in  violation  of  my  oiders." 

On  September  23,  1916,  the  water  engineer, 
Vi.  Lee,  wrote  to  Mr.  Merriken  that: 

"The  only  way  in  which  the  supply  can  be 
brought  into  Mrs.  Leitch's  new  house,  without 
disturbing  the  improved  paving  on  Liberty 
Heights  avenue,  is  by  laying  a  service  pipe  in 
the  alley  north  of  Liberty  Heights  avenue,  from 
Carsdale  to  a  point  on  the  east  side  of  her  lot." 

In  his  testimony  the  mayor  said: 
"There  is  always  a  constant  resistance  on  our 
part  to  destroying  pavements  that  have  been 
newly  put  down,  except  in  cases  where  there 
seems  to  be  a  necessity  for  it,  where  there  has 
been  a  break  under  the  pavement,  where  the  gaa 
mains  or  sewers  are  broken  under  the  paving, 
and  they  have  to  go  into  them  to  repair  them; 
but  we  try  not  to  do  it  if  there  is  any  possible 
remedy,  any  possible  relief,  any  possible  way  by 
which  it  can  be  avoided.  We  found  out  that 
this  could  be  avoided  by  a  little  additional  ex- 
pense on  the  part  of  the  property  owners:  and 
we  refused,  in  common  with  all  other  similar 
cases  that  come  under  my  direction,  to  cut  the 
improved  paving.  There  is  a  constant  battle  to 
prevent  property  owners  from  cutting  the  im- 
proved paving;  and  if  they  see  any  improved 
paving  go  down  in  front  of  their  property,  with- 
«ut  any  regard  for  public  interests,  in  practically 
a  week  or  a  day  afterwards  they  come  in  and 
want  to  enlarge  the  water  pipe,  or  put  in  sewer 
connections,  or  water  connections,  so  it  is  a 
constant  battle  to  prevent  the  paving  from  be- 
ing cut;  and  this  is  one  of  the  hundreds  of  cases 
that  we  have  to  decline.  The  objection  is,  in  the 
6r8t  place,  what  it  should  cost,  and,  in  the  sec- 
ond place,  is  getting  the  back-fill  so  the  pave- 
ment will  stand  up  after  it  is  repaired.  Some- 
times we  have  to  repair  it  once  or  twice  or  two 
or  three  times.  The  tendency  is  that  the  back- 
fill sinks  under  the  pavement,  and  then  it  goes 
down;  and,  of  course,  the  other  thing  is  that, 
while  you  may  be  able  to  repair  it  very  well, 
yet,  at  the  same  time,  it  is  not  a  good  thing 
to  put  down  a  new  pavement  and  then  go  and 
cut  it  up  again.  On  Baltimore  street  you  would 
be  surprised  at  the  attitude  of  the  community 
on  the  subject.  I  have  letters  constantly  call- 
ing my  attention  to  the  fact  that  the  new  pave- 
ment has  been  put  down  on  Calver  street  and  a 
new  cut  was  put  in  there.  *  •  •  Baltimore 
sbreet  has  beoi  repaved,  a  new  street  put  down 


on  Baltimore  street,  and  yet  there  have  bera 
Qfty  cuts  on  Baltimore  street  on  account  of  the 
defective  back-fill.  The  structures  under  the 
street  go  down  with  the  back-Sll,  the  sewer  and 
the  water  pipes,  and  electric  conduit,  for  ex- 
ample. Kow,  then,  ^ou  go  down  and  cut  down 
to  repair  a  water  pipe,  and  the  fill  goes  in  as 
well  as  you  can  make  it,  as  well  as  you  can 
practically  make  it,  and  the  back-fill  goes  down 
and  carries  with  it  the  structures  on  the  side,  no 
matter  how  well  you  make  it.  In  other  cities 
they  drill,  or  make  a  small  hole  in  the  middle  of 
the  pavement  and  drill  in.  Well,  we  have  not 
been  able  to  do  that  very  successfully,  for  the 
reason  that  our  streets  are  so  full  of  pipes  that 
have  been  put  down  under  various  grants  of  the 
Legislature,  gas  pipes  generally,  and  then  bought 
out  by  the  Ckinsolidated,  and  such  things,  so  we 
cannot  drill  very  well;  I  mean  drill  from  the 
side,  horizontally;  but  we  have  one  constant 
battle.  The  applications  for  cuts  in  improred 
pavements  come  over  my  desk  with  what  is 
known  as  a  red  flag,  with  a  red  piece  of  paper 
attached,  showing  that  they  are  cuts  in  im- 
proved pavings,  so  that  we  can  examine  those 
cuts  promptly  and  classify  them  as  far  as  we 
can.  Where  we  have  old  pavements,  we  are 
not  so  careful  about  it,  macadam,  old  macadam 
paving,  or  old  cobble,  that  does  not  come  up  at 
all.  It  is  the  improved,  expensive  pavement  that 
has  been  put  down  by  the  property  owners  where 
we  resist  the  cutting  process  wherever  we  can 
and  exercise  the  best  discretion  we  have  in  the 
public  interests.  I  receive  a  great  many  appli- 
cations for  installing  pipes  to  the  curb  line,  and 
I  constantly  refuse  to  grant  these  permits. 
Sometimes  Uie  circumstances  or  equities  in  the 
case  seem  to  direct  a  different  discretion.  For 
instance,  if  the  pavement  is  five  or  six  or  seven 
years  old,  if  the  pavement  is  already  cut  at  that 
point  for  any  purpose — suppose,  for  instance, 
there  is  a  broken  main  there,  and  the  property 
owner  wants  to  go  down  into  the  same  cut,  we 
let  them  go.  It  is  already  there.  There  are  a 
good  many  parallel  cases  that  control  the  exer- 
cise of  discretion.  Mr.  Hubert  passed  on  some 
of  them,  in  order  to  take  the  volume  of  busi- 
ness, and  I  do  generally.  For  the  first  four 
years  I  think  I  took  charge,  and  now  Mr.  Hu- 
bert is  passing  on  them  very  largely  in  my  office 
in  my  absence.  I  have  never,  so  far  as  I  can 
recall,  none  that  I  know  of,  granted  any  per- 
mits for  opening  improved  paving  where  the 
circumstances  were  such  as  are  present  in  this 
case.  Other  than  the  reasons  which  I  have 
stated,  I  can  only  say,  I  am  down  there  at  the 
City  Hall  trying  to  protect  the  city's  property 
as  best  I  can  and  exercising  the  best  discretion 
I  can  in  the  matter." 

Mr.  Cooksey  said: 

'The  reasons  which  operate  would  cause  me 
to  believe  that  it  was  proper  to  refuse  this  ap- 
pUcaticm.  They  are  that  I  was  under  the  im- 
pression that  when  the  application  was  first 
presented  the  lot  had  just  been  sold  by  the  com- 
pany or  parties  developing  that  part  of  the 
city,  and  I  knew,  or  thought  I  knew,  they  were 
wdl  acquainted  with  our  regulations  regarding 
the  tearing  up  of  pavements,  and  I  thought  they 
should  have  made  it  their  business  to  see  that 
all  their  vacant  lots  which  they  proposed  to  im- 
prove were  properly  connected  up  before  the  new 
paving  was  laid.  There  has  been  a  good  deal 
of  new  paving  laid  in  that  territory.  The  com- 
pany I  am  speaking  of  is  the  Forest  Park  Com- 
pany, which  sold  to  Mrs.  Leitch.  I  also  con-. 
sidered  the  reasons  that  apply  to  all  permits  for 
cutting  new  pavements,  the  fact  that  you  can- 
not very  well,  at  any  reasonable  cost,  repair 
a  pavement  so  that  it  vrill  be  as  good  as  before 
it  was  cut.  It  is  practically  impossible  to  join 
the  asphalt  around  the  edges  of  the  cut.  Every 
effort  IS  made  to  make  a  bond,  but  it  does  not 
actually  bond.  The  concrete  does  not  bond  to 
the  old  concrete  base,  and  I  think  we  all  know 


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VEE  y.  LEITCH 


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that  it  is  pretty  hard  to  ram  any  trench  so 
that  there  will  be  no  settlement.  It  may  stand 
up  a  year  and  it  may  stand  up  a  year  and  a 
half,  but  it  generally  settles  some,  which  means 
a  depression,  and  which  means  going  back  and 
spending  the  city's  money  again  to  bring  that 
cut  up  to  grade.  Then,  of  course,  we  cannot 
always  get  a  plant  to  handle  the  cut  immedi- 
ately, and  therefore  we  have  got  a  hole  which 
must  be  taken  care  of  temporarily — in  other 
words,  it  is  temporarjr — and  that  permits  mois- 
ture to  enter  and  often  makes  it  dangerous. 
*  *  *  In  other  words,  there  is  always  a  line 
in  there  between  the  old  and  new  paving— a 
line  between  the  material  that  goes  in  to  make 
the  patch  in  the  original  paving.  This  permits 
moisture  to  get  in  under  the  i>atch.  There  are 
times,  of  course,  when  that  will  seal  over,  but 
when  the  seal  on  the  top  is  broken  there  is  no 
bond  all  the  way  down,  and  if  moisture  gets  in 
there  in  cold  weather  it  immediately  begins  to 
lift  the  edge  of  the  patch  and  it  starts  to  disin- 
tegrate, the  result  of  which  is  more  work  on 
that  patch  and  unsatisfactory  results  in  the 
end.  That  is,  yon  cannot  make  a  patch  as  good 
as  the  original  paving  and  you  have  holes  or 
depressions.  Considering  these  things  led  to 
the  general  policy  that  we  should  make  as  few 
cuts  in  the  paving  as  possible,  and  this  is  the 
general  policy  of  the  highways  engineer's  office, 
ao  much  so  that  I  continually  advise  other  de- 
partments to  explain  the  necessity  before  we 
will  grant  them  permits  for  their  own  extension 
and  repair  work.  The  witness  further  testi- 
fied that  his  department  turns  down  probably 
three  to  five  hundred  applications  a  year  for 
tearing  up  the  new  pavements,  and  the  applica- 
tions of  the  city  departments  are  turned  down 
for  the  same  reason.  Some  of  the  applications 
fbr  tearing  up  improved  paving  are  granted,  but 
the  applications  which  are  granted  are  under 
some  of  the  following  classes:  Water  leaks  are 
granted,  of  coarse.  Generally  an  emergency  is 
given  and  an  emergency  break  is  given  prompt 
attention,  because  if  the  water  leak  is  not  re- 
paired it  will  damage  a  greater  and  larger  area 
of  the  street,  and  the  quicker  it  can  be  repaired 
the  less  damage  will  be  done.  A  gas  leak  will 
always  affect  the  asphalt  in  the  same  manner. 
It  seeps  up  and  the  paving  will  disintegrate  from 
eaeaping  gas.  The  extension  or  enlarging  of  a 
water  service  in  the  downtown  sections  where 
sprinkler  service  is  installed  for  fire  protection. 
This  is  granted  for  fire  protection.  The  exten- 
sion of  the  water  system— that  is,  a  main  con- 
nection, or  an  extension  of  the  main  of  the 
water  department  for  better  service— but  they 
are  looked  into  quite  well  before  they  are 
granted.  Q.  Now,  for  merely  curb-line  connec- 
tions—that is,  connections  from  the.  main  line 
to  the  carb  line — do  you  or  not  grant  those? 
A.  We  do  not,  unless  ft  is  a  case  ot  the  c«nne<^ 
tion  becoming  worn  out  or  breaking.  Practical- 
ly a  leak  or  a  choked  connection.  Q.  But  I  am 
speaking  of  absolutely  new  connections.  A.  We 
do  not  grant  those.  Q.  Now,  we  have  been 
speaking  of  newly  laid  paving.  Is  there  any 
period  of  time  which  yon  have  fixed  in  your 
judgment  when  that  no  longer  applies?  A.  Aft- 
er five  yeaiB." 

The  city  was  willing  to  permit  the  Intro- 
duction of  the  water  from  Carsdale  avenue 
by  the  rear  alley  mentioned,  or  to  allow  the 
appellees  to  connect  with  the  supply  pipe  of 
Hr.  Hamburger,  but  refused,  for  the  reasons 
stated,  to  cnt  the  pavement  on  Liberty 
Heights  avenne.  It  does  not  appear  that  the 
Forest  Park  Company  bad  any  objection  to 
the  Introduction  of  the  water  through  the 
rear  alley,  and  in  view  of  the  testimony  of 
Hr.  Webb  and  the  representation  of  their 
jflgent  made  to  the  appellees  at  the  time  of 


their  purchase,  that  the  water  connection  bad 
been  made,  it  Is  hardly  likely  it  would  have 
objected.  So  far  as  we  are  Informed  by  the 
record,  the  real  reason  why  the  appellees  did 
not  secure  the  water  in  that  way  was  because 
of  the  additional  cost  Failing  to  obtain  the 
penult  applied  fpr,  the  appellees  filed  a  peti- 
tion In  the  Baltimore  city  court  for  a  writ 
of  mandamus,  and  that  court,  after  bearing 
the  testimony,  by  an  order  dated  January 
22,  1917,  ordered  the  writ  of  mandamus  to 
Issue  against  the  appellants,  "constituting 
the  water  board  of  the  municipal  corporation 
known  as  the  Mayor  and  City  Council  of  Bal- 
timore, commanding  them  to  proceed  forth- 
with with  the  Installation  of  water  from  the 
water  main  of  the  Mayor  and  City  Coandl 
of  Baltimore,  located  in  the  bed  of  Liberty 
Heights  avenue  to  the  kerb  line  in  front  of 
the  property  of  the  petitioners."  This  ap- 
peal was  taken  from  that  order. 

The  single  question  is,  Had  the  court  the 
right,  under  the  facts  and  circumstances 
stated,  to  compel  by  mandamus  the  water 
board  to  install  the  water  as  directed  by  the 
order  appealed  from?  In  dealing  with  this 
question,  it  la  important  to  keep  in  mind 
some  fundamental  principles  governing  the 
issuance  of  the  writ  of  mandamus.  It  was 
said  in  Upshur  ▼.  Baltimore  City,  94  Md. 
743   51  AQ.  953,  that: 

"It  must  be  remembered  that  a  writ  of  manda- 
mus is  not  a  writ  of  right  granted  as  of  course, 
but  it  is  one  which  is  allowed  'only  at  the  dis- 
cretion of  the  court  to  whom  the  application  is 
made.  This  discretion  will  not  be  exercised 
in  favor  of  applicants  unless  some  just  or  useful 
purpose  may  be  answered  by  the  writ.'  Booze 
V.  Humbird,  27  Md.  4.  It  is  also  well  settled 
that  the  relator's  right  which  is  sought  to  be 
enforced  must  be  a  clear,  distinct  legal  right 
(State  ex  rel.  O'Neill  v.  Register  et  al.,  59  Md. 
287),  and  that  it  must  be  certain  and  free  from 
doubt.  Mandamus  is  an  extraordinary  process, 
'and  if  the  right  be  doubtful,  or  the  duty  dis- 
cretionary, or  of  a  nature  to  require  the  exer- 
cise of  judgment,  *  *  *  this  writ  will  not  be 
granted.' " 

And  In  Brown  t.  Bragnnler,  79  Md.  234, 
29  AtL  7,  it  was  said: 

'The  remedy  by  mandamus  is  not  one  which  is 
accorded  ex  debito  justitie.  The  writ  is  a  pre- 
rogative one ;  and  unless  the  right  which  the 
relator  seeks  to  enforce  is  clear  and  unequivo- 
cal, and  the  correlative  duty  which  the  respond- 
ent refuses  to  perform  is  purely  ministerial, 
and  there  be  no  other  adequate  remedy  at  law, 
it  will  not  be  granted." 

[1]  Riglits  and  duties  are  correlative,  and 
unless  there  was  a  duty  or  obligation  upon 
the  water  board  to  have  installed  the  water 
as  ordered,  the  appellees  were  not  entitled, 
under  the  authorities  cited,  to  the  writ  of 
mandamus.  To  know  what  its  duty  was  un- 
der the  ciroumstances,  It  is  necessary  to  ex- 
amine certain  provisions  of  the  charter  and 
ordinances  of  the  city  which  relate  to  this 
subject.  The  installation  of  the  water,  which 
the  appellants  were  directed  to  make,  in- 
volved the  opening  or  disturbance  of  the  sur- 
face of  a  newly  paved  street.  If  the  appel- 
lees have  a  right  to  require  the  opening  of  a 


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101  ATLANTIC  REPORTER 


(Md. 


pavement,  others  simnarly  situated  mast  be 
accorded  the  same  right,  and  the  policy  adopt- 
ed by  the  mayor  for  the  preservation  of  new- 
ly laid  pavements  will  be  set  aside,  and  the 
resulting  injury  described  in  the  testimony, 
whi(di  that  policy  was  designed  to  prevent, 
will  Inevitably  ensue. 

[21  It  Is  well  settled  that  thie  Ha.vor  and 
Cltj  Council  of  Baltimore  have  full  and  com- 
plete control  over  the  streets  and  highways 
of  the  city. 

"This  legislative  authority  over  the  streets 
is  sometimes  classified  as  belonging  to  the  police 
power ;  that  is  to  say,  that  great  power  which 
embraces  the  protection  of  life,  umb,  health, 
and  property,  and  the  promotion  of  the  public 
peace  and  safety.  It  is  a  high  conservative 
power  of  the  utmost  importance  to  the  existence 
of  good  government."  Lake  Roland  Elevated 
R.  R.  Co.  V.  Baltimore,  77  Md.  352,  26  AtL 
510,  20  U  a  A.  126. 

The  power  to  maintain  and  regulate  the 
use  of  the  streets  is  a  trust  for  the  benefit 
of  the  general  public.  This  power.  In  express 
terms,  is  conferred  by  the  charter  npon  the 
dty.  By  subsection  26  H,  §  6,  the  power  is 
given  to  the  dty  "to  regulate  the  opening 
of  street  surface  for  the  puriposes  authorized 
by  law  or  ordinance."  The  power  to  control 
and  supervise  the  streets  and  highways  of 
the  clt7  Is  comprehended  In  the  grant  of 
police  power  to  the  municipality.  By  sub- 
sedlon  18  of  section  6  of  the  charter  (Act 
of  1898,  C  128)  It  has  the  power— 
"to  pass  ordinances  for  preserving  order,  and 
securing  property  and  persons  from  violence, 
danger  and  destruction,  protecting  the  public  and 
dty  property,  rights  and  privileges  from  waste 
or  encroachment,  and  for  promoting  the  great 
interest  and  insuring  the  good  government  of  the 
dty.  To  have  and  exercise  within  the  limits 
of  the  dty  of  Baltimore  all  the  power  common- 
ly known  as  the  police  power  to  the  same  extent 
as  the  state  has  or  could  exercise  said  power 
within  said  limits."- 

And  by  subsection  31  of  section  6  It  Is  far- 
ther pnnvlded  that: 

"The  foregoing  or  other  enumeration  of  pow- 
ers in  this  article  shall  not  be  held  to  limit  the 
power  of  the  mayor  and  City  Council  of  Balti- 
more, in  addition  thereto  to  pass  all  ordinances 
not  inconsistent  with  the  provisions  of  this  arti- 
de  or  the  laws  of  the  state  as  may  be  proper 
in  executing  any  of  the  powers,  either  express 
or  implied,  enumerated  In  this  section  and  else- 
where in  this  article,  as  wdl  as  such  ordinances 
as  it  may  deem  expedient  in  maintaining  the 
peace,  good  government,  health  and  welfare  of 
the  dtv  of  Baltimore;  and  it  may  provide  for 
the  enforcement  of  all  such  ordinances  by  such 
penalties  and  imprisonments  as  may  be  pre- 
scribed by  ordinance;  but  no  fine  shall  exceed 
five  hundred  dollara,  nor  imprisonment  exceed 
twelve  months  for  any  offense." 

In  Bossberg  v.  State,  111  Md.  3&i,  74  Atl. 
681,  134  Am.  St  Rep.  626,  Jadge  Pearce,  In 
discussing  the  police  power  of  the  dty,  said: 

"Broader  or  more  comprehensive  police  powers 
could  not  be  conferred  under  any  general  grant 
of  police  power,  for  the  purposes  mentioned  in 
section  18,  than  those  granted  in  that  section, 
and  when  we  consider  the  'Welfare  Clause'  of 
the  charter,  sec.  31,  greater  emphasis  could  not 
be  laid  upon  the  implied  powers  of  the  city  for 
the  maintenance  of  the  peace,  good  government, 
health,  and  welfare  of  the  dty  than  is  there  laid. 


That  section  expressly  declares  that,  no  enumer- 
ation of  powers  in  that  article  shall  be  deemed 
to  limit  the  power  of  the  dty,  in  addition  there- 
to, to  pass  aill  ordinances,  not  inconsistent  with 
that  article  or  the  laws  of  the  state,  as  may 
be  proper  in  executing  any  of  the  enumerated 
powers,  express  or  implied,  contained  anywhere 
in  said  article.  *  *  *  In  the  present  case 
the  legislative  grant  is  not  merely  one  of  power 
to  pass  ordinances  relating  to  spedfied  police 
powers,  regarded  as  a  part  only  of  the  general 
police  power,  but  the  grant  is  of  'all  the  power 
commonly  known  as  tiie  police  power,  to  the 
same  extent  as  the  state  has  or  could  exercise 
said  power  within  said  limits.'  The  implication, 
therefore,  is  a  necessary  one,  that,  notwithstand- 
ing the  preceding  dause  of  that  section  of  the 
charter  enumerated  certain  purposes  for  whidi 
ordinances  might  be  passed,  the  Legislature  in- 
tended the  dty  to  have,  in  addition,  the  power 
to  pass  ordinances  for  any  and  all  purposes  re- 
lating to  the  exercise  of  the  police  power.  If, 
therefore,  the  power  to  pass  the  oindinance  in 
question  can  be  considered  as  an  implied  power, 
it  is  wdl  within  the  definition  of  an  implied 
power  given  by  Judge  Cooley,  since  the  whole 
police  power  cannot  be  exerdsed  if  the  exer- 
dse  of  any  part  of  such  power  is  to  be  withheld 
because  such  part  is  not  expressly  granted.  But 
we  regard  the  power  here  in  question  as  an  ex- 
press power,  and  this  is  so  whether  we  look, 
in  the  construction  of  the  charter,  either  to  one 
or  both  of  the  sections  heretofore  reproduced. 
The  grant  of  all  the  police  power  is  an  express 
grant,  and  every  part  of  the  whole  is  therefore 
derived  by  express  grant  in  section  18.  If 
there  could  be  any  doubt  of  this,  such  doubt  i> 
set  at  rest  by  section  31,  which,  as  we  have  said, 
expressly  declares  that  the  power  to  pass  any 
ordinance,  not  inconsistent  with  that  artide 
or  with  the  laws  of  the  state,  shall  not  be  lim- 
ited by  any  enumeration  of  powers  anywhere  in 
said  article.  We  regard  the  legislative  intent 
therefore  to  be  dear,  whether  the  power  be 
viewed  either  as  express  or  implied.  We  did  not 
understand  the  anpdlant  to  deny  that  this  power 
can  be  ddegated  by  the  state  to  a  muiddpal 
corporation.  It  is  true,  as  a  general  propod- 
tion,  that  the  Legislature  cannot  delegate  its 
power  to  make  laws,  bnt  as  expressed  in  28 
Cyc  603:  'After  repeated  challenge  of  mnnid- 
pal  authority  to  exerdse  the  poUee  power,  oa 
the  ground  that  it  is  a  sovereign  power,  and 
therefore  nonddegable,  the  doctrine  u  firmly  es- 
tablished and  now  well  recognised  that  the  Leg^ 
islature  may  expressly  or  by  implication,  dde- 
gate  to  munidpal  corporations  the  lawful  exer- 
dse of  police  power  within  thdr  boundaries. 
*  *  *  It  may  be  full  or  partial,  regular  or 
summary;  but  it  is  never  exdnsive,  as  the 
Legislatare  has  no  authority  to  divest  itself  of 
any  of  its  sovereign  functions  or  powers." 

By  subsection  80  of  section  6  of  the  char- 
ter, the  Mayor  and  City  Council  was  em- 
powered "to  establish,  (q;>erate,  maintain  and 
control  a  system  of  water  supply  for  Balti- 
more d(y,  and  to  pass  all  ordinances  nec- 
essary In  the  premises";  and  It  was  farther 
Invested  with  "all  •  •  •  rights  and  pow- 
ers necessary  for  the  Introduction  of  water 
Into  said  dty,  and  to  enact  and  pass  all  or- 
dinances, from  time  to  time,"  which  may  "be 
deemed  necessary  and  proper  to  exercise  the 
powers  and  effect  the  objects  above  sped- 
fled." 

The  vnater  board,  under  the  charter,  la  tbe 
second  sabdepartment  of  public  Improve- 
ments, and  It  has  diarge  of  tbe  water  sapply 
of  the  inhabitants  of  the  dty. 

By  ordinance  No.  26,  ajvroved  Mardi  Q, 


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1896;  and  codified  an  secticm  1,  art.  40,  of 
tbe  Baltimore  City  C!ode  of  1906,  it  was  or- 
dained tliat: 

"The  water  board  shall  bave  power  to  make 
and  pass  all  rules  and  rcgalations  for  the  gov- 
eminent  of  the  board,  the  laying  and  tapping  of 
pil>e8,  or  for  the  protection  and  preservation  of 
the  Mid  pipes,  or  other  property  and  appurte- 
nances of  ue  waterworks;  and  to  afSx  penal- 
ties, and  to  enforce  the  same  for  any  violation 
of  their  rules  and  regulations;  it  shall  also  have 
power  to  adopt  all  necessary  regulations  to 
preserve  the  purity  of  the  water,  and  to  enact 
and  enforce  such  rules,  regulations  and  penalties 
as  they  may  deem  necessary,  in  accordance  with 
the  provisions  of  this  Code." 

A  prior  ordinance  is  fonnd  in  the  City  Code 
of  1893  (article  54,  sec.  11)  which  authorizes 
the  water  board — 

"to  make  and  pass  rules  and  regulations  for  the 
government  of  the  board,  the  laying  of  pipes  and 
for  tbe  protection  and  preservation  of  said  pipes 
or  other  property  and  appurtenances  of  the  wa- 
terworks." 

[3]  These  ordinances  passed  In  pursuance 
of  power  granted  by  the  state,  were  valid  lo- 
cal laws.  Gould  T.  Baltimore  City,  120  Md. 
534,  87  AtL  818. 

Prior  to  the  passage  of  this  latter  ordi- 
nance, an  ordinance  was  passed  in  November, 

1892,  prohibiting  any  person,  persons,  or  cor- 
porations from  tearing  up  the  streets,  with- 
out first  having  obtained  a  written  permit 
therefor  from  the  dty  commissioner,  approv- 
ed by  tbe  mayor.  This  ordinance  was  rec- 
ognized as  valid  In  State  v.  Latrobe,  81  Md. 
233,  31  AtL  788,  and  acting  under  the  au- 
thority conferred  upon  It  by  the  ordinance  of 

1893,  above  referred  to,  the  water  board  in 
October,  1895,  passed  the  following  rule: 

"Rule  14.  Whenever  an  application  is  made 
to  this  department  for  introduction  of  water  for 
any  premiae  or  premises  wherein  the  city  main 
may  lay,  aaid  street  being  covered  with  asphalt 
pavement,  asphalt  block,  Belgian  block,  or  any 
improved  pavement,  this  department  will  not  in- 
trodnce  the  supply  of  water  until  the  applicant 
or  applicants  have  obtained  a  permit  from  the 
city  commissioner's  department  and  indorsed  by 
the  mayor  for  this  department  to  open  the  street. 
And  be  it  further  understood  that  the  appli- 
cant or  applicants  will  have  to  bear  all  the  ez- 
Iienses  for  the  proper  repairs  and  repaving  of 
any  such  street." 

One  of  the  main  objects  of  the  rule  was 
tbe  preservation  and  protection  of  the  streets 
and  highways  of  the  city,  and  the  water 
board,  evidently  bad  in  mind  the  ordinance 
of  1892  and  the  opinion  of  Otis  court  In  State 
V.  Latrobe,  supra,  whch  was  filed  April  4, 
3895.  This  rule  has  been  in  force  and  acted 
upon  t^  the  water  board  ever  since  its 
adoption,  with  one  single  practical  modifica- 
tion. As  the  highways  engineer  is,  with  re- 
spect to  the  issuance  of  the  permit,  the  legal 
successor  of  the  dty  commissioner's  depart- 
ment, the  issuing  of  the  permit  now  devolves 
upon  him;  but  it  must,  however,  be  indorsed 
by  tbe  mayor. 

[4,  B]  It  is  argued  that  this  rule  is  void — 
First,  because  it  is  unreasonable;  and,  sec- 
ondly, that  the  grant  of  power  to  make  it  is 


an  unlawful  delegation  of  power  to  the  water 
board.  As  to  the  first  contention,  it  must  be 
apparent  from  what  we  have  said  that  the 
rule  is  an  expression  of  the  long-established 
policy  of  the  city  and  is  founded  upon  consid- 
erations of  public  welfare.  Nor  do  we  think 
the  rule  "delegatus  non  potest  delegare"  ap- 
plies. The  corporation  may  act  in  such  mat- 
ters by  its  officers  and  agents.  This  was 
recognized  in  State  v.  Latrobe,  supra,  and,  as 
said  by  Judge  Scbmucker  in  Downs  v.  Swann, 
111  Md.  5.^,  73  AO.  653,  23  L.  B.  A.  (N.  S.> 
739, 134  Am.  St  Rep.  686: 

"It  has  *  *  *  been  settled  by  numerous 
decisions  that  the  state  may  delegate  the  police 
power  to  subordinate  boards  and  commissions, 
and  that  the  reasonable  and  just  exercise  by 
them  of  the  delegated  power  will  be  upheld." 

In  this  connection  we  may  also  refer  to 
Commissioners  of  Easton  v.  Covey,  74  Md. 
262,  22  Atl.  266,  and  Brown  v.  Stubbs,  128  Md. 
129, 97  AtL  227. 

Judge  Pearce  said  in  Rossberg  v.  State, 
supra,  that  the  powers  vested  in  the  city  "are 
broad  and  sweeping,  and  are  expressed  in 
terms  which  indicate  a  liberal  view  of  tlw 
need  of  broad  powers  for  effective  local  gov- 
ernment of  a  great  city."  The  writ  was  no* 
directed  against  the  mayor,  and  there  i» 
nothing  to  indicate  that  bis  objection  to  th» 
issuance  of  a  permit  was  based  upon  passion, 
prejudice,  hostility,  or  any  unworthy  motives. 
He  was  exercising  his  best  Judgment  in  the 
public  interests  in  maintaining  what  we  think 
to  be  a  wise  pubUc  poUcy.  It  was  said  In 
Upshur  V.  Baltimore,  supra,  that  the  writ  of 
mandamus  "is  based  upon  reasons  of  Justice 
and  public  policy  to  preserve  peace,  order,  and 
good  government"  (Foe's  Prac.  f  708),  and  it 
obviously,  therefore,  will  not  be  granted 
where  those  ends  would  be  subverted  or  might 
be  frustrated. 

[•]  For  the  reasons  stated  we  sustain  the 
validity  of  role  14  of  the  water  board,  and 
it  foUowB  from  that  holding  that  the  appel- 
lees were  not  entitled,  under  the  authorities 
cited,  to  the  writ  of  mandamus,  and  the  order 
appealed  from  must  be  reversed  and  the  peti- 
tion dismissed. 

Order  reversed  and  petition  dismissed,  ,wltb 
costs. 

(lU  He.  G06> 

STAPLES  V.  EMERY  et  aL 

(Supreme  Judicial  Court  of  Maine.    Aug.  24. 
1917.) 

Afpkai.  aro  Erbob  «=>92S(2)— Pbesuhptioit 
— Inbteuctions. 
Where    no   exceptions    to    instructions   are 
presented,  it  must  be  assumed  that  proper  in- 
structions were  given  to  the  jury. 

On  Motion  from  Supreme  Judicial  Court, 
Waldo  County,  at  Law. 

Action  by  Sewall  L.  Staples  against  War 
ren  K.  Emery  and  others.  On  motion  for  a 
new  trial  after  verdict.    Motion  overruled. 

Argued  before  KING,  BIRD,  HALEY. 
HANSON,  and  PHILBROOK,  JJ. 


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101  ATLAmiO  REPORTER 


(M& 


Dunton  &  Morse,  of  Belfast,  for  plaintifT. 
Tascns  Atwood,  of  Auburn,  for  defendants. 

PER  CURIAM.  Action  to  recover  for  serv- 
ices. Defendant  claimed  an  entire  contract, 
that  plaintiCr  was  guilty  of  a  breach  thereof, 
and  further  claimed  damages  in  recoupment 
for  that  breach.  Plaintiff  denied  that  the 
contract  was  an  entire  one,  and  further 
claimed  that  defendant,  by  failure  to  make 
payments  as  agreed  upon,  was  guilty  of  vio- 
lation of  the  contract  which  did  exist.  No 
«zceptions  are  presented,  and  it  must  be  as- 
sumed that  proper  Instructions  were  given 
to  the  Jury.  The  evidence  is  bluntly  conflict- 
ing, but  the  Issues,  under  proper  Instructions, 
were  issues  of  fact  within  the  province  of  the 
jury  to  determine. 

After  a  careful  examination  of  the  testi- 
mony, we  are  unable  to  say  that  the  Jury  so 
manifestly  erred  as  to  require  the  verdict  to 
tie  set  aside. 

Motion  overruled. 


41 1«  Me.  3U) 


SMITH  V.  TILTON. 


.(Supreme  Judicial  Conrt  of  Maine.     Ang.  24, 
1917.) 

1.  Tbial  ^s>251(2)— Instructions— Isbtteb  to 
Support. 

Id  an  action  for  moDey  paid  to  defendant 
upon  his  fraudulent  representation  that  an  at- 
torney had  advised  him  that  plaintiff  might  ob- 
.tain  an  order  for  the  sale  of  land,  wherein  de- 
fendant denied  the  fraud  and  alleged  that  the 
money  was  paid  him  as  a  part  of  the  purchase 

Srice  of  a  farm  convej'ed  to  plaintiffs  son,  but 
id  not  allege  plaintiff's. fraud  in  attempting  to 
obtain  an  order  of  sale,  defendant's  requested  in- 
struction that,  if  she  placed  the  money  in  his 
hands  to  conceal  it  so  as  to  make  a  sale  of  the 
land  appear  to  be  necessary,  she  could  not  re- 
cover, was  properly  refused,  as  being  without 
the  issues. 

2.  Monet  Received  «=3l2  —  Defenses  — 
Fbaud. 

In  such  case  plaintiff's  fraud,  If  any,  in  at- 
-tempting  to  conceal  the  money  paid  to  defend- 
ant BO  as  to  obtain  an  order  for  the  sale  of  land 
in  which  she  bad  a  life  interest  with  a  power 
of  sale  would  not  bar  her  recovery,  where  it 
might  enable  her  to  live  without  selling  the 
farm,  which,  if  unsold,  would  descend  to  her 
deceased  buaband's  collateral  heirs,  whose  inter- 
ests were  to  that  extent  involved. 

£)xceptions  from  Supreme  Judicial  Court; 
Somerset  County,  at  Law. 

Action  by  Martha  W.  Smith,  by  conserva- 
tor, against  George  A.  Tllton.  From  the  re- 
fusal to  give  his  requested  Instruction,  d«> 
fendant  excepts.    Exceptions  overruled. 

Argued  before  KING,  BIRD,  HALET, 
HANSON,  and  PHILBROOK,  JJ. 

Butler  &  Butler,  of  Skowhegnn,  for  plain- 
tiff. Walton  &  Walton,  of  Skowbegan,  for 
■defendant. 

l»HIIJ?ROOK,  J.     Action  for  money  had 
and  received. 
The  plaintiff  is  the  widow  of  Prescott  A. 


Smith,  who  died  testate  By  the  terms  of  bk 
win  all  his  personal  property  was  bequeathed 
to  his  widow,  "the  same  to  be  hers  absolutely," 
as  the  will  states.  She  was  also  devisee  of  a 
life  estate  in  all  his  real  property,  with  the 
power  to  sell  and  dispose  of  the  same,  or  any 
part  thereof,  if  necessary  for  her  comfortable 
support  and  maintenance.  After  her  de- 
cease, if  there  had  been  no  disposal  as  above 
provided  for,  the  use,  income,  and  occupa- 
tion of  the  home  farm  were  devised  to  the 
only  child  of  the  testator,  Harry  P.  Smith, 
for  the  term  of  his  natural  life.  At  the  de- 
cease of  the  latter  the  home  farm  was  be- 
queathed to  the  person  or  persons  who  would 
be  the  nearest  relatives  of  the  testator,  ac- 
cording to  the  laws  of  descent,  other  than 
any  and  all  issue  of  the  son,  Harry,  and  his 
wife,  Grace  Butler  Smith,  which  issue  was 
expressly  excluded  as  beneficiaries  under  the 
will. 

When  the  conditions  of  the  instrument  be- 
came known,  the  son  was  naturally  disap- 
pointed as  to  the  provisions  made  for  himself 
and  his  disinherited  children,  and  made 
threats  to  contest  the  father's  testament.  It 
is  obvious  from  the  record  that  the  plaintiff, 
with  a  maternal  love  of  son  and  grandchil- 
dren which  is  quite  natural,  sympathized 
with  Harry  in  bis  disappointment.  The  mat- 
ter became  the  subject  of  domestic  discus- 
sion, and  members  of  the  legal  profession 
were  consulted  with  a  view  to  ascertaining 
whether  the  terms  of  the  will,  so  far  as  they 
affected  Harry  and  bis  children,  could  be 
avoided.  The  plaintiff  stated  in  her  testi- 
mony that  she  got  her  son  and  this  identical 
defendant  to  consult  attorneys  and  find  oat 
if  it  could  be  done,  saying  also  that  if  it 
could  be  she  so  desired  for  the  children's 
sake  and  to  please  Harry.  The  necessity  of 
selling  the  real  estate  was  clouded  by  the 
fact  that  the  personal  property  bequeathed 
to  the  plaintiff  amounted  to  about  (2,400, 
which  sum  included  about  $1,800  deposited  in 
a  local  bank,  and  also  by  the  further  fact 
that,  exclusive  of  this  bequest,  the  plain- 
tiff, at  the  time  of  her  husband's  decease, 
bad  about  $400  of  her  own  money  on  deposit 
in  a  bank. 

The  defendant  owned  a  farm  wbl<^  Harry 
desired  to  purchase.  There  was  talk  aoioag 
the  interested  parties  to  the  effect  that  if 
the  widow  could  give  a  good  title  to  the  home 
farm  then  the  defendant  would  convey  hia 
farm  to  Harry  and  receive  In  part  payment 
thereof  the  deed  of  the  bome  farm  from  the 
plaintiff.  Hence  the  question  of  necessity 
of  sale  of  the  bome  farm  by  the  plaintiff 
became  the  stumbling  block  which  must  be 
removed  from  the  pathway  leading  to  the 
power  to  give  good  title  to  that  farm  by  the 
plaintiff.  She  says  that  she  told  the  de- 
fendant and  l>er  son  to  ascertain,  by  consult- 
ing a  certain  attorney  in  whom  she  professed 
to  have  confidence,  whether  and  how  thcst 


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transactions  conid  be  carried  oat  snccess- 
fully.  Finally,  she  soys,  the  defendant  told 
her  they  bad  se^i  this  attorney  and  had  been 
advised  by  him  that  she  would  not  be  oblig- 
ed to  reach  her  lust  dollar  before  she  could 
sell  the  home  place,  and  that.  If  most  of  the 
money  was  put  out  of  sight,  It  would  enable 
the  trade  to  be  accomplished  and  carried 
through  more  quickly.  She  says  that  she 
relied  upon  this  advice  and  the  statement  of 
the  defendant  that  It  had  been  given,  and 
paid  the  defendant  $600  "to  get  it  out  of 
sight,  so  that  trade  could  be  completed  quick- 
er; so  I  would  be  able  to  sell  the  home 
place." 

She  now  says  that  she  was  deceived  and 
defrauded  by  the  defendant,  that  the  alleged 
advice  reported  to  her  from  her  attorney  was 
in  fact  never  given,  and  seeks  to  recover  the 
$600  which  she  paid  him. 

The  defendant  denies  the  deceit  and  fraud, 
and  alleges  further  matter  of  defense  that 
the  plaintiff  gave  the  $600  to  her  son  to  en- 
able him  to  purchase  the  defendant's  farm, 
and  that  the  same  was  received  by  him  as  a 
part  of  the  consideration  for  said  farm 
which  he  the  same  day  conveyed  to  the  son, 
all  being  done  in  the  presence  of  the  plain- 
tttt. 

It  does  not  appear  from  the  record  that 
plaintiff  ever  executed  a  deed  of  the  home 
farm  to  the  defendant ;  her  sole  effort  being 
to  recover  the  money  paid  to  the  defendant 
under  the  claim  already  described. 

[1]  The  defendant  requested  the  following 
instruction: 

"That  if  the  defendant  falsely  represented  to 
the  plaintiff  that  Mr.  M.,  her  attorney,  said  it 
would  be  legal  for  her  to  do  so,  yet  if  the 
thereupon  placed  the  $600  sued  for  in  this  ac- 
tion in  the  hands  of  the  defendant  with  intent 
to  get  it  ont  of  sight  and  for  the  purpose  of  giv- 
ing the  false  impression  that  It  was  necessary 
for  her  to  sell  the  real  estate  of  her  deceased 
husband,  thereby  depriving  others  of  their 
rights,  and  preparatory  to  so  doing,  then  she 
cannot  recover  the  same  back  from  the  defend* 
ant." 

The  presiding  Justice  declined  to  give  this 
instmction  and  allowed  exceptions.  The 
case  is  before  us  upon  these  exceptions,  and 
upon  no  other  ground.  The  requested  in- 
struction was  evidently  based  upon  the  fa- 
uilittr  principle  that,  if  a  person  commits  a 
fraud,  he  cannot  ask  the  law  to  help  him  get 
back  his  money  which  he  fraudulently  paid 
away.  But  we  have  carefully  examined  the 
declaration  and  brief  statement,  as  well  as 
the  plea  and  special  matter  of  defense,  and 
do  not  find  that  fraud  on  the  part  of  the 
plaintiff  was  made  an  issue  by  the  pleadings. 
As  we  have  already  stated,  the  plaintlfTs 
declaration  raises  the  issue  of  fraud  on  the 
part  of  the  defendant.    The  defendant  de- 


nies this  allegation  and  raises  a  further  and 
substantive  Issue,  namely,  that  the  plaintiff 
gave  the  $600  to  her  son  to  enable  him  to  pur- 
chase a  farm  of  the  defendant,  and  that  the 
same  was  received  by  the  defendant  as  a 
part  of  the  consideration  of  said  farm.  The 
defendant  was  evidently  content  to  rest  his 
defense  upon  these  pleadings,  but  plainly 
they  did  not  raise  the  issue  of  fraud  or 
fraudulent  conduct  on  the  part  of  the  plain- 

tur. 

In  many  Jiuisdictions  the  law  seems  to  be 
well  settled  that  Instructions  should  be  con- 
fined to  the  issues  made  by  the  pleadings. 
We  borrow  the  language  from  some  of  the 
leading  cases. 

Instructions  of  the  court  should  confine  the 
attention  of  the  Jury  to  the  Issues  made  by 
the  pleadings.  Holt  v.  Pearson,  12  Utah,  63, 
41  Pac.  560,  citing  as  authority  Terry  t. 
Shlvely,  64  Ind.  106 ;  Ck>nlin  v.  Railroad  Ck>., 
36  Cal.  404;  Frederick  v.  BUnzer,  17  Neb. 
366,  22  N.  W.  T70;  Glass  v.  Gelvln,  80  Mo- 
297,  Instructions  to  Juries  should  be  confin- 
ed to  the  issues  made  by  the  pleadings. 
Jacksonville  Electric  Oo.  v.  Batcbls,  54  Fla. 
192,  44  South.  933,  dtlng  as  authority  Walk- 
er V.  Parry,  61  Fla.  344,  40  South.  68;  Hl- 
note  V.  Brlgmaa,  etc.,  44  Fla.  689,  33  South. 
303.  It  is  an  established  principle  of  law 
that  the  instructions  to  a  Jury  must  be  based 
upon  and  applicable  to  the  pleadings.  Klrby 
V.  Rainier-Grand  Hotel  Co.,  28  Wash.  705, 
69  Pac.  378.  We  think  this  principle  is. 
sound,  workable,  and  in  the  interest  of  Jus- 
tice in  the  trial  of  causes,  and  so  we  hold 
that  the  refusal  to  give  the  requested  in- 
struction, it  not  being  pertinent  to  any  issue 
raised  by  the  pleadings  in  the  case  at  bar, 
was  entirely  proper. 

[2]  We  do  not  overlook  the  contention  of 
the  defendant  that  courts  owe  It  to  the  pub- 
lic Justice,  and  to  their  own  integrity,  Uh 
refuse  to  become  parties  to  contracts  essen- 
tially violating  morality,  or  public  policy, 
even  if  objection  be  not  made  by  the  parties 
interested.  But  this  principle,  in  our  minds, 
does  not  apply  here.  Bights  of  third  par- 
ties, namely,  the  collateral  heirs  of  the  testa- 
tor, were  involved.  The  recovery  of  this 
money  by  the  plaintiff  may  enable  her  to  live 
without  the  necessity  of  sale  of  the  real  es- 
tate, which,  if  not  sold,  will  descend  by  the 
will  to  those  collateral  heirs.  The  defend- 
ant should  not  be  allowed  to  keep  this  money 
if  so  doing  would  fraudulently  deprive  thos» 
heirs  of  what  would  rightfully  be  theirs. 
We  think  this  is  not  a  case  where  courts 
are  required  to  interfere  of  their  own  voli- 
tion in  the  Interests  of  public  policy  or  th» 
integrity  of  Judicial  tribunals. 

Exceptions  overruled. 


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101  ATLAMTIO  BEPORTEB 


(Mft 


<us  M*.  no 

KINO  ▼.  THOMPSON. 

(Supreme  Judicial  Court  of  Maine.     Aug.  28, 
1917.) 

1.  Work  akd  Labob  «=22— Plkadino. 

General  omnibus  count,  vith  specification 
that  under  it  plaintiff  will  show  that  defendant 
is  indebted  to  her  for  labor  according  to  ac- 
count annexed,  is  count  on  account  annexed 
for  work  and  labor,  since  plaintiff's  right  of  re- 
covery is  limited  by  her  specification. 

2.  Kefebsncx  €=?99(2)  —  Opxration  akd  Ef- 
fect—Findings  OF  Fact. 

Under  Rev.  St.  1903,  c.  84,  {|  83,  85,  mak- 
ing auditors'  reports  prima  facie  evidence,  the 
«ffect  of  an  auditor's  report  as  prima  facie  evi- 
dence for  party  offering  it  is  not  destroyed  as 
to  uncontested  findings,  where  she  introduces 
other  evidence  to  disprove  some  of  its  findings. 
8.  Evidence  «=>i71(22)— Opinion— Evidence 
— Admissibiutt. 

In  an  action  on  an  account  annexed  for 
work  and  labor  in  doing  housework  for  wife  of 
defendant's  intestate,  objection  to  question  what 
amount  of  the  time  she  was  able  to  do  her  own 
housework  ia  properly  sustained  as  calling  for 
judgment  of  witness. 

4.  WoBK  akd  Labob  «3>28(1)  —  Btidenob — 
Weight  and  Sufficienct. 

In  action  on  account  annexed  for  work  and 
labor,  items  of  account  must  be  proven  by  dear 
•nd  definite  evidence. 

6.  WoBK  AMD  Labob  «=>24(1)  —  Pleading — 
Evidence  Adkissiblb. 

In  action  on  account  annexed  for  work  and 
labor,  plaintiff  can  recover  only  for  services  spec- 
ified in  her  account. 

&  BXFEBENCE     «=>100(3)  —  REFOBT     AB     ETI- 

DEHOK  —  Exceptions  —  Conclusions  Based 

OH  IHOOMFEXENT  EVIDENCE. 

In  view  of  Rev.  St.  1903,  c  84,  t  84,  no  ex- 
ception lies  to  the  admission  in  evidence  of  an 
auditor's  report,  objected  to  for  the  first  time  at 
trial,  on  ground  that  his  oondosions  were  based 
on  incompetent  evidence. 

Exceptions  from  Supreme  Judicial  Court, 
Kennebec  County,  at  Law. 

Action  by  Annie  B.  Klngr  against  Herbert 
Thompson,  administrator  of  the  estate  of  A. 
Frank  Pulsifer.  Judgment  for  plaintiff,  and 
defendant  excepts.  Exceptions  sustatoed, 
and  new  trial  ordered. 

Argued  before  CORKISH,  a  J.,  and  KINO, 
BIRO,  HALET,  HANSON,  and  PHIL- 
BROOK,  JJ. 

George  W.  Heselton,  of  Gardiner,  for  plain- 
tiff. A.  S.  Littlefleld,  of  Rockland,  for  de- 
fendant 

BIRD,  J.  This  is  an  action  of  assumpsit 
originally  brought  against  A  Frank  Pulsifer. 
An  auditor  was  appointed,  and  after  hearing 
before  him  defendant  died  Intestate,  and  hia 
administrator,  before  trial  by  the  Jury,  be- 
came the  party  defendant  The  writ  Is  dated 
March  18,  1914, 

The  declaration  contains  two  counts.  The 
first  count  Is  upon  account  annexed  for  the 
sum  of  $3,099.71,  and  the  second  is  the  gen- 
eral omnibus  couut  with  the  specification 
that  under  it  "the  plaintiff  will  show  that  the 
defendant  owes  her  for  labor  done  between 
the  date  of  April  29,  1884,  and  the  date  of 


the  purchase  of  this  writ  some  $3,099.71,  k- 
cording  to  the  account  annexed." 

[1]  The  latter  commences  with  a  charge 
under  date  of  April  29,  1884,  and  ends  \rith 
one  under  date  of  November  22, 1913.  Charg- 
es are  made  In  each  of  the  months  between 
these  dates,  except  14.  Each  charge  U  made 
under  a  specific  date,  and  Is  for  either  one 
day's  or  one-half  day's  labor  or  work  in 
nursing  the  wife  of  Intestate,  who  was  the 
mother  of  plaintiff,  or  housework  at  the  uni- 
form rate  of  $1  per  day.  The  second  count 
therefore  Is  substantially  an  account  an- 
nexed for  work  and  labor.  Carson  v.  Cal- 
houn, 101  Me.  456,  458,  64  AtL  838;  Gooding 
v.  Morgan,  37  Me.  419,  423.  See,  also,  Pet- 
tingill  V.  Pettinglll,  64  Me.  350,  358,  359. 
Cape  Elizabeth  v.  Lomtwrd,  70  Me.  39€,  400, 
ia  not  authority  to  the  contrary.  Nor  is  the 
dictiuu  in  Dexter  Savings  Bank  v.  Copeland, 
72  Me.  220,  222.  The  speclflcatlcms  render- 
ed necessary  for  a  valid  attadiment  of  real 
estate  may  be  relied  upon  by  the  defradant 
equally  wltb  that  filed  by  plaintiff  under 
rule  11  (70  Atl.  vlil).  Primarily  the  former 
Is  for  the  information  of  creditors  and  piuv 
chasers.  Saco  v.  Hopkinton,  29  He.  26S, 
271 ;  see,  also,  Fairbanks  t.  Stanley,  18  Me. 
296,  302;  Jordan  v.  Keen,  54  Me.  417.  But 
obviously  it  cannot  be  held  that  the  defend- 
ant may  not  equally  rely  upon  It  In  Car- 
son V.  Calhoun,  supra,  the  specification  in  tbe 
writ  under  the  money  count  was  not  made 
to  enable  a  valid  attachment  of  real  estate 
to  be  made,  and  yet  it  Is  held  that  the  claim 
of  the  plaintiff  was  restricted  and  his  rigbt 
of  recovery  limited  by  his  specification. 

At  the  October  term,  1914,  the  defendant 
lileaded  the  general  issue  with  brief  state- 
ment Invoking  the  statute  of  limitations,  and 
the  case  was  sent  to  the  auditor.  It  may  he 
inferred  that  tbe  report  of  the  auditor  was 
filed  at  the  March  term  following.  Tbe 
cause  was  submitted  to  a  Jury  at  the  Mardi 
term,  1916,  and  resulted  In  a  verdict  for 
plaintiff  in  substantially  the  amount  claimed 
In  the  account  annexed.  The  case  Is  before 
this  court  upon  exceptions  and  the  usual  mo- 
tion for  new  triaL 

In  the  bill  of  exceptions  are  found  13  ex- 
ceptions to  refusals  to  instruct  tbe  jury  a^ 
requested,  numerous  exceptions  to  the  ad"-  , 
mission  and  exclusion  of  evidence,  6  excep- 
tions to  the  charge  to  the  jury  of  the  presid- 
ing justice,  and  exceptions  to  the  admission 
of  substantially  the  whole  of  the  report  of 
the  auditor,  as  based  upon  Incompet^t  evi- 
dence. 

[2]  Tbe  first  exception  to  refusals  to  in- 
struct Is: 

"The  plaintiff  havin;;  attacked  the  auditor's 
report  which  was  put  in  by  her,  that  report  no 
longer  makes  for  her  a  prima  facie  case,  and  she 
must  prove  otherwise  all  the  elements  necessary 
to  make  out  her  case." 

The  statute  regarding  auditors  provides 
that: 


essa  for  otber  case*  lee  same  topic  and  KBT-NUMBBR  In  all  Key-Numbered  Digests  and  IndezM 


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KINO  r.  THOMFBOK 


725 


^eir  "report  la  prima  facie  evidence  upon 
such  matters  only,  as  are  expressly  embraced 
in  the  order."  "Their  report  may  be  used  as 
evidence  by  either  party,  and  may  be  disproved 
by  other  evidence."    R.  S.  1903,  c.  84,  {{  83,  85. 

Here  is  found  nothing  to  Indicate  that  Im- 
peachment or  disproof  of  the  report  la  oon- 
flned  to  the  party  not  offering  it,  but  rather 
the  contrary.  So  It  is  held  in  Howard  v.  Kim- 
ball, 65  Me.  308,  326,  327,  328,  329,  where  the 
report  was  offered  by  plaintiff  and  wherein 
the  court  says: 

"The  defendant  was  at  liberty  to  pat  in  the 
same  evidence  which  was  before  the  auditor  or 
such  other  evidence  pertinent  to  the  case  before 
the  jnry  as  he  desired,  and  this  right  does  not 
seem  to  have  been  abridged.  Either  party  baa 
that  right  and  will  commonly  find  it  necessary 
to  avail  himself  of  it,  as  to  disputed  items, 
whether  the  object  be  to  impeach  or  to  support 
the  auditor's  report"  without  destroying  the 
prima  facte  effect  of  its  findings  unless  success- 
fully impeached  or  disproved. 

To  the  same  effect  Is  Kendall  v.  Weaver,  1 
Allen  '(Mass.)  277,  278,  279,  where  again  the 
report  was  offered  by  plaintiff,  the  court  say- 
ing: 

"TUm  party  reading  it  may,  as  well  as  his  ad- 
versary, produce  evidence  in  addition  to  it,  and 
may  prove  items  not  allowed  by  the  auditor,  or 
offer  proof  to  contradict  any  part  of  It." 

See  Smith  t.  California  Ins.  Co.,  87  Me. 
190,  195,  32  Atl.  872. 

The  instructions  given  by  the  justice  pre- 
siding were  without  error. 

In  view  of  the  concluslcm  to  which  the 
court  must  come  upon  the  exceptions  dis- 
cussed below,  which  will  render  a  new  trial 
necessary,  it  Is  deemed  profitless  to  consider 
the  other  exceptions  to  the  charge  of  the  pre- 
siding Justice  or  to  his  refusal  to  instruct,  or 
other  exceptions  to  the  admission  or  exclu- 
sion of  evidence. 

[3, 4]  The  following  question  was  address- 
ed by  plaintiff  to  one  of  her  witnesses,  a 
daughter  of  the  plaintiff,  subject  to  objection 
and  exceptions: 

"Q.  XVom  that  time  down  (when  witness  was 
ten  years  old),  what  is  yoar  best  judgment  of 
the  amount  of  time  your  grandmother  was  able 
to  do  her  own  housework? 

"A.  She  was  not  able  to  do  her  own  work  one- 
balf  of  the  time,  near." 

The  obvious  Intention  was  to  show  that  the 
Inability  of  the  defendant  to  perform  work, 
was  proof  of,  or  tended  to  prove,  items  of  the 
account  annexed.  Each  item  of  the  account 
annexed  is  or  may  be  a  separate  contract  of 
itself.  Bennett  v.  Davis,  62  Me.  644;  Tur- 
geon  V.  Cote,  88  Me.  108,  111,  33  Atl.  787. 

Vagueness  and  Indefiniteness  of  proof  are 
as  much  an  objection  to  sustaining  a  count 
for  money  had  and  received  as  they  are  In 
other  actions  (Tltcomb  v.  Powers,  108  Me. 
347,  348,  349,  80  Atl.  851) ;  and  we  conceive 
tbat  clear  and  definite  evidence  is  as  essen- 
tial In  proof  of  the  items  of  an  account  an- 
nexed. The  question,  moreover,  calls  not  for 
a  statement  of  fact,  but  for  the  Judgment  of 
tbe  witness.  We  think  the  question  Inad- 
nsissible,  and  the  exception  Is  sustained. 

[S]  Bxc^^ons  are  taken  to  the  refusal  of 


the  court  to  rule,  as  requested  by  defendant, 

that: 

"The  plaindfF  is  only  entitled  to  recover  In 
this  action  for  the  services  specified  in  her  ac- 
count, and  you  are  not  authorized  to  foimd  your 
verdict  on  any  other  services." 

It  follows,  we  think,  from  our  conclusions 
already  reached,  that  the  Instruction  request- 
ed should  liave  been  given.  While  It  is  prob- 
ably true  that  the  formal  count  in  quantum 
meruit  Is  no  longer  necessary  in  any  case 
(Lawes*  PL  in  Assumpsit,  504),  and  that  the 
value  of  work  and  labor  done  may  be  recov- 
ered under  a  general  count  in  indebitatus  as- 
sumpsit, it  should  be  noted  that  such  general 
count  makes  no  attempt  to  set  out  or  specify 
the  particular  labor  performed.  Sudi,  as  we 
have  seen,  is  not  the  case  in  the  present  ac- 
tion.   The  exception  is  sustained. 

[I]  Much  of  the  confusion  which  has  aris- 
en in  the  case  might  have  been  avoided  by 
different  procedure.  The  defendant  objects 
that  the  report  of  the  auditor,  or  substantial- 
ly the  whole  of  it,  is  based  upon  illegal  evi- 
dence. In  Briggs  T.  Gllman,  127  Mass.  530, 
631,  and  cases  dted,  it  Is  correctly  stated 
that: 

"^e  object  of  the  statute  by  which  the  courts 
are  authorized  to  refer  cases  to  auditors  and  to 
require  their  reports  to  be  read  as  prima  facie 
evidence,  although  neither  party  may  desire  it, 
is  to  simplify  and  elucidate  the  issue  to  be  tried. 
•  •  •  If  one  of  the  findings  of  the  auditor  ap- 
pears to  the  court,  upon  the  facts  reported  by 
nim,  to  be  erroneous  in  matter  of  law,  or  in  ex- 
cess of  the  authority  conferred  by  the  rule  of 
reference,  the  jury  may  be  instructed  according- 
ly, and  so  much  of  his  report  stricken  out,  leav- 
ing the  rest  to  have  its  proper  wel^t  and  ef- 
fect *  *  •  But  an  objection  to  a  portion  of 
the  evidence  upon  which  the  auditor  has  based 
his  conclunon  cannot  be  taken,  as  matter  of 
right,  except  by  motion  to  recommit  the  report 
to  the  auditor  before  the  trial.  To  allow  sudi 
an  objection  to  be  taken  for  the  first  time,  at 
the  trial,  as  a  ground  for  rejecting  the  whole 
report  and  proceeding  to  trial  without  it,  would 
defeat  the  purpose  of  the  statute." 

See,  also.  Silver  y.  Worcester,  72  Me.  322, 
325;  Collins  r.  Wlckwlre,  162  Mass.  143, 145, 
38  N.  B.  365 ;  Harvard  Brewing  Co.  v.  KUll- 
an,  222  Mass.  13,  16,  109  N.  £2.  649. 

And  again  it  has  been  decided  by  the  same 
court  that  the  objection  that  certain  evidence 
contained  in  an  auditor's  report  was  inad- 
mlaslble  la  no  ground  for  excluding  the  re- 
port or  for  striking  out  those  portions  of  It 
on  a  motion  made  at  the  trial.  Leverone  ▼. 
Arancio,  179  Mass.  439,  448,  61  K  B.  43,  and 
cases  cited.  No  exception  lies  to  the  admis- 
sion In  evidence  of  an  auditor's  report,  ob- 
jected to  for  the  first  time  upon  the  grounds 
that  his  conclusions  were  based  on  Incompe- 
tent evidence.  Winthrop  y.  Soule,  175  Mass. 
400,  56  N.  fii  675.  See,  also,  Kendall  v.  May, 
10  Allen  (Mass.)  69;  Allwright  v.  SkUUngs, 
188  Mass.  538,  539,  540,  74  N.  a  944. 

The  provisions  of  the  statute  under  which 
the  decisions  of  the  Supreme  Judicial  Court 
of  Massachusetts  were  reached  are  substan- 
tially identical  with  our  own.  "Their  report 
may  be  recommitted.    They  may  be  discharg- 


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101  ATIiANTIG  REPORTER 


(N.X 


ed  and  others  appointed."  R.  S.  c.  87,  {  89 
(R.  S.  1903,  c.  84,  i  84).  We  find  nothing  In 
the  decisions  of  onr  own  court  holding  other- 
wise. As  a  new  trial  la  ordered,  application 
for  recommitment  of  the  report  may  be  made 
In  vacation  (R.  S.  c.  87,  f  37),  or  at  the  next 
term.    Phillips  r.  Gerry,  75  Me.  277,  279. 

The  motion  for  new  trial  Is  not  consid- 
ered. 

The  exceptions  are  sustained  and  new  trial 
ordered. 


(88  N.  J.  Bq.  81) 

LAMBERT  t.  VARE. 


(No.  42/402.) 


(Court  of  Chancery  of  New  Jersey.    July  23, 
1917.) 

1.  Deeds  «=all2(9  —  Cohstbuotion  —  Land 
Covered. 

The  owner  of  land  between  a  street  running 
parallel  with  the  seacoaat  laid  the  tract  out  in 
streets,  blocks,  and  lota,  the  streets  running 
from  the  existing  street  to  the  shore.  Her  con- 
veyance of  part  thereof  described  the  tract  sold 
as  beginning  at  the  line  of  the  original  street, 
running  thence  southerly  275  feet ;  thence  east- 
erly, parallel  with  the  original  street,  166  feet 
to  the  east  line  of  another  street'  thence  north- 
erly in  the  line  of  such  street  275  feet  to  the 
original  street;  thence  to  place  of  beginning. 
The  map  referred  to  showed  fractional  lots  not 
numbered  lying  between  the  tract  so  described 
and  the  ocean.  Held,  that  the  tract  conveyed 
did  not  extend  to  the  ocean. 

2.  Covenants  9=331— Aoseeicent  to  Convex 
—Application. 

The  owner  of  land  lying  between  the  ocean 
and  a  street  when  she  convoked  a  tract  running 
from  the  parallel  street  2i5  feet  toward  the 
water  and  bounded  on  two  sides  by  mapped 
streets  laid  out  by  her  covenanted  that  all  lands 
which  should  thereafter  be  made  by  accretions 
from  the  ocean  or  should  accrue  to  her  by 
reason  of  a  boardwalk  being  moved  oceanward, 
etc.,  should  be  subdivided  into  lots  of  the  size 
of  those  shown  on  the  map,  that  the  streets 
shown  on  the  map  should  be  continued  to  the 
high-water  line  of  the  ocean,  and  that  all  of  the 
restrictive  building  covenants  should  be  binding 
on  such  additional  lots.  Held,  that  the  cove- 
nant was  not  limited  to  accretions  to  that  part 
of  the  owner's  tract  which  did  not  lie  to  seaward 
of  the  land  so  sold ;  the  description  thereof  not 
purporting  to  extend  to  the  ocean. 
8.  Qttietino  Title  9=944(1) — ^Aefibxativb  ot 
Issue  of  Title. 

In  suits  to  quiet  title,  complainant,  who 
must  be  adjudged  to  be  in  peaceable  possession 
before  jurisdiction  over  the  issue  of  title  can  be 
assumed,  is  given  the  benefit  of  his  peaceable 
possession,  and  defendant  assumes  the  burden  of 
the  affirmative  on  the  issue  of  title,  and  carries 
the  burden  of  establishing  a  title  in  conformity 
with  the  specification  of  title  which  the  statute 
requires  him  to  set  forth  in  his  answer. 

4.  Navioable  Watebs   9=>44(3)— AocBxnon 
—Title. 

When  a  deed  calls  for  the  ocean  as  a  bound- 
ary, the  land  conveyed  extends  to  the  ocean  for 
all  time,  whether  high-water  mark  recedes  or 
encroaches  by  natural  accretions  or  erosions. 

5.  botjndabies  9=37(1)— location  of  hloh- 
Wateb  Line— Sufficiency  of  Evidence. 

In  a  suit  to  quiet  title  to  a  tract  of  land 
forming  part  of  a  beach,  evidence  held  not  to 
justify  finding  that  the  line  of  ordinary  high 
tide  of  the  ocean  when  title  passed  from  the 
common  source  of  title  to  defendant's  predeces- 
sor was  shoreward  of  a  line  275  feet  southerly 


of  a  street  running  parallel  with  the  shore,  or 
coincident  with  such  line. 

Suit  between  Archibald  S.  I^ambert  and 
Ida  M.  Tare.  Decree  advised  pursuant  to 
the  prayer  of  the  bill. 

Clarence  I4.  Cole,  of  Atlantic  City,  for 
complainant  Levis  Starr,  of  Camden,  and 
Charles  C.  Babcock,  of  Atlantic  City,  for 
defendant 

LBAMINO,  V.  O.  This  suit  has  be«i 
brought  by  complainant  to  qniet  title  to  a 
tract  of  land  which  forms  a  part  of  the 
beach  front  at  Atlantic  City.  At  the  hearing 
complainant's  peaceable  possession  was  es- 
tablished. No  Issue  at  law  having  been 
demanded,  this  court  then  proceeded  to  final 
hearing  on  the  issue  of  title. 

All  or  nearly  all  of  the  locns  in  quo  ap- 
pears to  have  been  below  or  oceanward  of 
the  line  of  ordinary  high  tide  of  the  ocean 
at  some  time  prior  to  this  date.  Both  com- 
plainant and  defendant  have  acquired  from 
the  state  riparian  leases  covering  the  dis- 
puted territory;  bnt  both  riparian  leases  con- 
tain the  usual  provision  that  the  lease  shall 
be  void  and  of  no  effect  If  the  person  to 
whom  the  lease  is  made  is  not  the  owner 
In  fee  of  the  fast  land  adjoining  the  land 
in  which  the  right  of  the  state  is  conveyed. 
The  riparian  lease  to  defendant  contains 
a  further  clause  that  it  is  made  subject  to 
any  rights  which  were  acquired  by  Jesse 
R.  Turner  under  a  former  riparian  lease 
made  to  Turner  by  the  state  covering  the 
same  territory.  Complainant  now  enjoys 
any  rights  acquired  by  Turner  under  that 
riparian  lease. 

Part  of  the  controverted  territory,  though 
covered  by  the  descriptions  contained  in 
these  two  riparian  leases,  has  now  become 
"fast  land"  by  reason  of  accretions  from 
the  ocean.  The  title  to  that  part  of  the 
locus  in  quo  arvordingly  requires  no  riparian 
grant  for  its  support,  unless  such  accretions 
are  to  be  deemed  artificial.  The  outer  or 
oceanward  part  of  the  locus  in  quo  is  still 
probably  below  the  line  of  ordinary  high- 
water  mark,  and  title  to  that  portion  ap- 
parently can  only  be  claimed  under  the 
state. 

It  is  conceded  that  August  3, 1901,  Hannah 
E.  ELelley  was  the  owner  of  a  large  tract 
of  land  extending  from  Atlantic  avoine  to 
the  ocean,  and  as  such  owner  was  then  own- 
er of  the  ripa.  No  title  or  rights  had  at 
that  time  ever  existed  in  any  of  the  territory 
oceanward  of  the  Kelley  tract  except  the 
rights  of  the  state  therein.  Atlantic  avenue 
runa  parallel  to  the  ocean  and  the  Kelley 
tract  embraced  the  territory  lying  between 
the  ocean  and  Atlantic  avenue  from  Colam- 
bla  avenue  on  the  east  to  Tallahassee  avenue 
on  the  west. 

The  primary  dispute  at  the  foundation  of 
the  present  controversy  arises  from  a  deed 


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LAMBERT  v.  VARE 


727 


of  conveyance  made  by  Mrs.  Kelley  to  John 
M.  Hilton  for  a  large  portion  of  the  Kelley 
tract  That  deed  described  the  land  con- 
veyed as  commencing  at  Atlantic  avenue 
and  extending  toward  the  ocean  to  a  line 
parallel  to  Atlantic  avenue  and  275  feet 
distant  therefrom.  As  will  hereinafter  be 
more  folly  pointed  out,  that  deed  was  ob- 
viously made  npon  the  assumption  on  the 
part  of  the  parties  thereto  that  the  tract 
conveyed  did  not  extend  to  the  ocean,  but 
left  land  owned  by  Mrs.  Kelley  between 
the  ocean  and  the  extreme  southerly  bound- 
ary of  the  tract  thus  conveyed.  Upon  that 
assumption  MiU  Kelley  subsequently  (in 
1903)  conveyed  to  Jesse  R.  Turner  and  Har- 
ry R.  Tonng  the  land  lying  between  the 
southerly  boundary  line  described  in  the 
Hilton  deed  and  the  ocean,  that  deed  call- 
ing for  the  ocean  as  the  southerly  boundary 
of  the  tract  conveyed.  It  is  under  the  rights 
conferred  by  that  deed  that  complainant 
now  holds. 

Defendant  claims  that,  although  the  deed 
from  Mrs.  Kelley  to  Hilton  did  not  purport 
to  extend  to  the  ocean,  It  In  facF  did  so  ex- 
tend, because,  as  It  Is  now  alleged  by  de- 
fendant, the  ordinary  high-water  mark  of 
the  ocean  was  at  that  time  within  275  feet 
of  Atlantic  avenue,  and  Hilton  accordingly 
became  riparian  owner  by  operation  of  that 
grant.  Under  that  assumption  defendant 
has  acquired  the  benefits  of  a  quitclaim  deed 
from  Hilton  extending  from  a  point  236 
feet  south  from  Atlantic  avenue  to  the 
ocean. 

It  will  thus  be  observed  that  complain- 
ant claims  the  ownership  of  the  ripa  under 
the  deed  from  Mrs.  Kelley  to  Young  and 
Tamer,  whldi  claim  assumes  that  her  earlier 
deed  to  Hilton  did  not  constitute  Hilton 
riparian  owner,  and  defendant  claims  the 
rlpa  under  a  deed  from  Hilton,  which  claim 
assumes  that  the  deed  from  Mrs.  Kelley 
to  Hilton  did  convey  the  rlpa. 

Accordingly  the  major  portion  of  the  tes- 
timony has  been  directed  to  the  ascertain- 
ment of  the  line  of  ordinary  high  tide  of  the 
ocean  at  the  date  of  the  deed  from  Mrs. 
Kelley  to  Hilton  with  a  view  of  ascertain- 
ing whether  that  deed  constituted  Hilton 
the  riparian  owner.  If  it  did,  the  subse- 
quent deed  from  Mrs.  Kelley  to  Turner 
and  Young  for  the  territory  extending  from 
the  southerly  boundary  named  In  the  Hil- 
ton deed  to  the  ocean,  under  which  deed 
complainant  claims  to  have  acquired  the 
rlim,  would  obviously  convey  nothing. 

A  proper  examination  of  this  issue  neces- 
sitates a  more  detailed  statement  of  the 
Kelley-Hllton  conveyance.  Its  terms,  and  the 
map  with  reference  to  which  it  was  made. 

As  already  stated.  It  is  conceded  that 
Hannah  B.  Kelley  prior  to  Aujnist  3,  1901, 
owned  the  tract  of  land  extending  norther- 
ly and  southerly  from  Atlantic  avenue  to 
the  ocean  and  extending  easterly  and  wester- 
ly   from    Columbia    avenue   to    Tallahassee 


avenue.  The  legal  title  to  a  portion  of  the 
tract  was  in  one  Henderson  Synnamon,  but 
that  circumstance  is  conceded  to  be  imma- 
terial. 

Prior  to  August  8,  1901,  Mrs.  Kelley  had 
caused  the  tract  to  be  laid  out  in  streets, 
blocks,  and  lots,  and  had  filed  in  Atlantic 
county  clerk's  oflBce  a  map  of  the  tract 
which  delineated  those  physical  features. 
That  map  discloses  streets  extending  north 
and  south  from  Atlantic  avenue  to  the  ocean 
and  numbered  lots  between  the  streets. 
These  several  streets,  in  order,  beginning 
with  the  most  easterly  street,  are  Columbia 
avenue,  Bartram  place,  MUIidgevlUe  avenue 
(now  called  Kingston  avenue),  Berkley  square, 
and  Tallahassee  avenua  As  the  land  now  in 
controversy  lies  oceanward  of  the  tier  of  lots 
easterly  of  and  adjacent  to  Berkley  square, 
only  that  portion  of  the  map  between  Mil- 
lidgevllle  avenue  and  Berkley  square  need 
be  spedflcally  shown.  The  following  is  a 
copy  of  that  portion  of  the  map. 


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August  3,  1901,  an  agreement  was  execut- 
ed by  Mrs.  Kelley  and  John  M.  Hilton  by  the 
terms  of  which  Mrs.  Kelley  agreed  to  sell  to 
Hilton  on  terms  spedflcally  named  certain 
specified  iwrtions  of  her  tract  That  part 
of  the  tract  lying  between  MlllidgeviUe  ave- 
nue and  Berkley  square  is  described  In  that 
agreement  as  follows: 

"Also  beginning  at  the  southwest  comer  of  At- 
lantic and  MillidKeville  avenues  and  runs  thence 
(1)  southwardly  in  the  west  line  of  Millidgeville 
avenue  two  bmidred  and  seventy-five  feet; 
thence  (2)  eastwardly  parallel  with  Atlantic 
avenue  one  hundred  ana  sixty-five  feet  to  the 
east  line  of  a  fifty  foot  wide  street  called  Berk- 


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101  ATLAMTIO  RBFOUTER 


(N.J. 


ley  square;  tbence  (3)  northwardly  in  the  east 
line  of  said  Berldey  square  parallel  with  Mil- 
lidgeville  avenue  two  hundred  and  seventy-five 
feet  to  the  southerly  line  of  Atlantic  avenue; 
thence  (4)  eaatwardly  in  the  southerly  line  of  At- 
lantic avenue  one  hundred  and  sixty-five  feet 
to  the  place  of  beginning— jieinjr  lots  numbered 
*  •  *  1  to  14,  inclusive,  in  block  26  of  lands 
belonging  to  Hannah  E.  Kelley,  situate  between 
Atlantic  avenue  and  the  Atlantic  Ocean  from 
Columbia  avenue  to  Tallahassee  avenue,  in  At- 
lantic Gity  aforesaid,  and  duly  laid  out  in 
blocks  and  lots  fay  the  said  Hannah  £!.  Kelley,  a 
map  or  plan  of  which  is  filed  in  the  clerk's 
Dffice  of  the  county  of  Atlantic  at  May's  Land- 
ing, New  Jersey,  and  a  copy  of  which  is  attach- 
ed hereto  and  made  a  part  hereol" 

It  will  be  observed  that  this  description 
of  the  land  between  Mlllldgevllle  avenue  and 
Berkley  square  embraces  14  specific  lots,  and 
Is  a  rectangular  tract  the  southerly  boundary 
of  which  is  described  as  parallel  to  Atlantic 
avenue  and  275  feet  distant  therefrom,  and 
further  that  the  map,  a  copy  of  which  is  at- 
tached to  the  agreement,  discloses  fractional 
lots,  not  numbered,  lying  between  the  275- 
foot  boundary  line  and  the  ocean  as  delineat- 
ed on  the  map.  It  should  also  be  here  added 
that  the  agreement  of  sale  embraced  all  the 
lots  lying  between  Bartram  place  and  MU- 
Udgevllle  avenue,  and  also  those  lying  be- 
tween Columbia  avenue  and  Bartram  place, 
designated  as  lota  1  to  21,  Inclusive,  In  block 
24,  and  that  the  description  of  these  lots  was 
In  like  manner  to  a  line  275  feet  south  of  and 
parallel  with  Atlantic  avenue,  and  also  that 
the  map  discloses  fractional  lots  between  the 
ocean  and  the  said  lots  numbered  from  1  to 
21. 

[1]  From  the  manner  In  which  the  land  to 
be  conveyed  Is  described  In  this  agreement 
by  reference  to  the  map  attached  to  it,  It  Is 
entirely  obvious  that  the  parties  .to  the  agree- 
ment did  not  undertake  to  extend  the  land 
on  which  the  agreement  operated  to  the 
ocean,  but,  on  the  contrary,  attempted  to 
stipulate  for  the  sale  of  a  tract  of  land  to  a 
definite  straight  line  distant  275  feet  south- 
erly from  and  parallel  with  Atlantic  arenne 
without  Inclading  land  which  the  map  dis- 
posed as  lying  between  the  ocean  and  the 
275-foot  line.  It  Is  this  boundary  line  275 
feet  southerly  from  AUantic  avenue  whldt 
defendant  now  claims  was  at  the  date  of  this 
agreement  in  fact  in  the  ocean,  and  hence  it 
Is  claimed,  the  conveyance  made  pursuant 
to  the  agreement  in  fact  included  the  ripa, 
even  though  the  parties  to  the  agreement 
may  have  intended  and  believed  to  the  con- 
trary. 

The  conclusion  that  the  parties  to  this 
agreement  and  the  conveyance  whldi  fol- 
lowed it  did  not  Intend  to  convey  to  the  ocean 
is  not  only  apparent  from  the  manner  in 
which  the  land  is  described  and  the  dellnea- 
titma  of  the  map  annexed  to  the  agreement, 
but  is  also  reasonably  apparent  from  certain 
covenants  contained  in  the  agreement,  and 
In  the  conveyance  subsequently  made  pursu- 
ant to  the  agreement,  wbidi  covenants  re- 
lated to  the  unsold  portion  of  the  Kelley 


tract  The  agreement  contains  a  series  ot 
restrictive  building  covenants  subject  to  tbe 
operation  of  which  the  contemplated  convej- 
ance  was  to  be  made,  and  also  provides  that 
the  same  restrictive  covenants  should  be  in- 
serted in  all  deeds  of  land  thereafter  made 
by  Mrs.  Kelley  of  the  remaining  portion  of 
her  tract,  and  then  provides  as  follows: 

"That  all  lands  which  shall  hereafter  be  nad» 
by  accretions  from  the  Atlantic  Ocean,  or  which 
shall  accrue  to  her  to  the  northward  of  the  pres- 
ent boardwalk  by  reason  of  the  same  being  mov- 
ed ocean  ward  or  by  reason  of  the  lines  of  the 
present  Ocean  Front  Park  being  moved  ocean- 
ward,  shall  be  subdivided  into  lots  of  the  same 
size  as  those  shown  on  the  map  aforesaid ;  that 
the  streets  shown  on  the  map  aforesaid  shall  he 
continued  to  the  biph-water  line  of  the  Atlantic 
Ocean;  and_  that  all  of  the  following  covenants 
and  restrictions  shall  he  bindine  and  enforceable 
upon  such  additional  lots  which  shall  accrue  to 
her  by  reason  thereof." 

[2]  It  is  claimed  by  defendant  that  this 
covenant  has  reference  only  to  accretions  to 
that  part  of  the  Kelley  tract  which  is  not 
southerly  of  the  land  described  in  the  agree- 
ment; but  it  seems  Impossible  to  attribute 
to  it  that  restrlctea  application.  When  it  is 
considered  that  the  description  of  tbe  land  to 
be  sold  does  not  purport  to  extend  to  the 
ocean  and  that  the  general  description  of  her 
entire  tract  refers  to  the  ocean  as  its  south- 
erly boundary,  anti  that  the  description  la 
made  with  reference  to  a  map  which  shows 
land  between  the  land  to  be  sold  and  the 
ocean,  and  that  the  primary  Interest  of  the 
purchaser  wouM  necessarily  be  in  the  preser^ 
vation  of  the  restrictive  covenants  in  land  to 
be  sold  in  front  or  oceanward  of  the  tract 
purchased,  It  seems  impossible  to  conclude 
that  tbe  stipulation  above  quoted  was  not  In- 
tended to  bind  Mrs.  Kelley  to  observe  those 
restrictive  covenants  as  to  land  thereafter 
acquired  by  her  through  accretions  in  front 
of  the  tract  to  be  conveyed  pursuant  to  the 
agreement 

The  deed  from  Mrs.  Kelley  to  Hilt(m,  pur- 
suant to  the  agreement  already  considered, 
was  made  December  31,  1901.  That  deed 
contains  a  description  of  the  lanS  in  the  same 
language  as  the  agreement  and  contains  the 
same  covenants  as  the  agreement  Whether 
that  part  of  the  covenants  contained  in  the 
agreement  and  deed  of  conveyance  which  con- 
firmed all  subsequent  accretions  to  Mrs.  Kel- 
ley was  operative  to  vest  in  her  an  equitable 
tiUe  to  the  accretions  thereafter  forming, 
as  against  a  person  claiming  the  accretions 
under  Hilton,  if  the  275-foot  boundary  Une 
Bhould  now  be  found  to  have  then  been  In  fact 
oceanward  of  high-water  mark,  I  think  it  un- 
necessary here  to  consider. 

[3]  In  suits  to  quiet  tiUe  the  complainant 
who  must  be  adjudged  to  be  in  peaceable 
possession  before  jurisdiction  over  the  issue 
of  titie  can  be  assumed,  is  given  the  benefit 
of  his  peaceable  possession,  and  defenUant 
then  assumes  the  burden  of  the  affirmative 
of  the  issue  of  titie  and  carries  the  bur- 
den ot  establishing  a  titie  in  conformity  witb 


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X.AMBERT  T.  VARX 


729 


the  8p«clflcatl(m  of  title  wUch  tbe  statute 
requires  such  defendant  to  set  fortb  In  his 
answer.  AccoiUlngly  at  the  hearing  defend- 
ant assumed  tbe  burden  of  establishing  that 
the  line  of  ordinary  high  tide  of  the  Atlantic 
Ocean  was  shoreward  of  275  feet  from  Atlan- 
tic avenue  at  the  point  shown  as  lot  14  on 
the  Kelley  map  when  the  title  passed  from 
Mrs.  Kelley  to  Hilton. 

[4]  The  difficulty  in  establishing  a  fact  of 
that  nature  more  than  16  years  after  the 
date  under  investigation  Is  apparent  from  the 
nature  of  the  testimony  adduced  at  the  hear- 
ing. Oonfllctlng  testimony,  <dne  to  the  frailty 
of  memory  of  witnesses  after  so  long  an  In- 
terval of  time,  la  inevitable  In  almost  any 
case;  but  the  ascertainment  of  the  location 
of  the  line  of  ordinary  high  tide  of  the  Atlan- 
tic Ocean  oa  a  nearly  level  sand  beach  upon 
which  the  uninterrupted  waves  of  the  ocean 
wash  introduces  many  elements  of  uncertain- 
ty not  incident  to  ordinary  Issues.  When  a 
deed  calls  for  tbe  ocean  as  a  boundary,  the 
boundary  is  certain  for  all  time,  for  it  ex- 
tends to  the  ocean,  whether  high-water  mark 
of  the  ocean  recedes  or  encroadies  by  natural 
accretions  or  erosions.  But  the  accurate  as- 
certainment of  the  location  of  the  line  of 
ordinary  high  tide  on  our  South  Jersey  ocean 
front  at  a  given  date  16  or  17  years  prior  to 
the  period  of  investigation  approaches  the 
imiMsslble.  An  inch  of  elevation  may  rep- 
resent many  feet  of  distance  in  tbe  shore- 
ward point  to  which  the  waves  of  the  ocean 
extend,  and  eacb  successive  wave  varies  in 
force  onU  height ;  and  to  this  must  be  added 
the  circumstance  that  the  influence  of  the 
moon  and  sun  causes  every  tide,  even  the  two 
tides  of  each  day,  to  vary  In  height,  and 
there  must  also  be  recognized  the  additional 
circumstance  that  winds  and  storms,  whether 
present  or  recent  an'd  whether  near  or  far 
removed,  also  render  the  tides  abnormal,  and 
even  barometric  pressure  materially  affects 
their  height  These  and  divers  other  circum- 
stances disclose  the  imi)eratlve  necessity  for 
accurate  data,  if  certainty  la  to  be  attidned, 
where  the  Issue  Involved  is  whether  oi'dinary 
high  tide  of  the  ocean  was  a  few  feet  shore- 
ward or  oceanward  of  a  given  point  at  a  giv- 
en time.  On  a  fresh  water  river  the  line  of 
vegetation  may  form  a  reasonably  accurate 
guide,  and  on  inland  salt  waters,  especially 
where  steep  banks  exist,  the  water  stains  on 
tbe  coarse  salt  grasses  afford  an  aid;  but  on 
an  almost  level  ocean  washed  sand  beach, 
where  no  vegetation  exists  either  below  or 
above  the  line  of  high  tide,  the  difficulties 
presented  in  the  absence  of  scientific  data  are 
almost  unsurmountable.  Tbe  mark  impress- 
ed upon  the  sands  by  the  preceding  high  tide 
signifies  little  unless  the  conditions  surround- 
ing tbat  high-water  mark  are  taken  into  ac- 
count, and  the  dfibrls  deiK>slted  on  the  beach, 
if  any,  by  preceding  high  waters  signifies  lit- 
tle unless  it  is  known  whether  such  deposit 
bas  been  tbe  result  of  a  storm  tide. 


[5]  In  my  Judgment  tbe  evidence  in  tbla 
suit  does  not  justify  a  finding  that  the  line 
of  ordinary  high  tide  of  the  ocean  was  shore- 
ward of  the  line  275  feet  southerly  of  Atlan- 
tic avenue  or  even  readied  that  line  at  tbe 
time  title  passed  from  Mrs.  Kelley  to  Hilt(Hi. 

A  detailed  review  of  the  testimony  seems 
unnecessary.  Some  witnesses  have  testified 
that  at  what  they  called  ordinary  high  tfde 
tbe  water  did  extend  shoreward  of  at  least 
some  parts  of  the  line  in  question;  others 
have  testified  to  tbe  reverse.  Tbe  witness 
for  defendant  whose  testimony  most  impress- 
ed me  was  John  LeeJds.  His  work  on  the 
premises  was  of  a  nature  to  appropriately  im- 
press  upon  bis  memory  the  tidal  conditions 
there  existing  at  tbe  time  his  work  was  per- 
formed, and  his  statement  is  that  the  Une  of 
ordinary  high  tide  was  15  or  20  feet  Inside 
the  276-foot  boundary  line.  Others  in  like 
position  to  observe  have  testified  to  substan- 
tially the  same.  On  the  contrary,  witnesses 
for  complainant  whose  testimony  seems  en- 
titled to  equal  weight  have  testified  that  the 
line  of  ordinary  high  tide  was  outside  or 
oceanward  of  tbe  275-foot  line.  These  wit- 
nesses include  members  of  the  life  guard  who 
patrolled  the  beach  daily  or  twice  dally  for  a 
period  of  time  from  long  before  to  after  the 
time  of  Inquiry. 

Most  of  the  testimony  has  been  directed  to 
conditions  existing  in  March,  1602,  and  sub- 
sequent thereto.  This  arises  from  the  fact 
that  in  March,  1902,  tbe  erection  of  a  bulk- 
head was  begun  on  the  275-foot  boundary 
line.  This  was  some  two  or  three  months 
after  tbe  deed  from  Mra  Kelley  to- Hilton 
was  made  and  over  six  months  after  the 
agreement  of  sale  which  conferred  the  equi- 
table title  on  Hilton.  That  bulkhead  was  be- 
gun at  a  point  easterly  of  the  locality  now  In 
question  and  was  being  constructed  In  a  west- 
erly direction  on  tbe  line  here  in  controversy. 
The  testlmcmy  of  several  of  the  witnesses  of 
defendant  who  worked  on  that  structure  is  to 
the  effect  that  when  that  bulkhead  had  been 
built  about  one-half  of  its  proposed  length — 
probably  to  about  MUUdgeville  avenue — a  se- 
vere storm  occurred  which  washed  away  the 
engine  which  was  used  in  connection  with  the 
work,  and  thus  interrupted  the  work  tor  a 
time.  Mr.  Bowen,  who  was  inspector  on  that 
work,  testified  that  that  storm  washed  away 
the  beach  about  2  feet  in  depth  at  the  vicinity 
of  Berkley  square,  and  that  prior  to  that 
storm  the  tides  had  not  Interfered  with  their 
work,  but  that  after  the  storm  the  tide  came 
15  or  20  feet  inside  the  line  of  their  proposed 
work  at  Berkley  square.  The  testimony  of 
other  witnesses  of  defaidant  who  were  em- 
ployed on  that  work  is  consistent  with  the 
view  that  prior  to  that  storm  the  tides  did 
not  reach  tbe  line  of  thdr  work,  but  after 
the  storm  it  did  extend  beyond  that  line  in 
the  vldnlty  of  Berkley  square  owing  to  the 
washout  caused  by  that  storm.  The  single 
fact  that  the  stationary  engine  which  supplied 


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101  ATLANTIO  BBPOSTER 


(N.J. 


power  for  the  work  on  the  bulkhead  was  lo- 
cated 15  or  20  feet  outside  or  ooeanward  of 
the  line  of  the  bulkhead  up  to  the  time  of  the 
etorm  strongly  Indicates  that  ordinary  tides 
dfd  not  reach  the  line  In  question.  The  cir- 
cumstance that  In  March  or  April,  1902,  a 
storm  washed  away  that  part  of  the  beach 
In  such  manner  as  to  cause  ordinary  tides  to 
extend  landward  of  the  275-foot  line  In  ques- 
tion Is  obviously  Immaterial  If,  in  the  year 
1901,  when  the  Hilton  title  was  acquired  by 
him,  the  exterior  line  of  his  grant  extended 
only  to  a  point  shoreward  of  high-water  mark. 
Ocean  City  Ass'n  v.  Shrlver,  64  N.  J.  Law, 
660,  46  Atl.  680,  51  L.  R.  A.  425. 

I  am  convinced  that  the  deed  from  Mrs. 
Kelley  to  Hilton  was  not  only  designed  to 
extend  to  a  line  above  the  line  of  ordinary 
high  tide  and  to  leave  in  Mrs.  Kelley  the  title 
to  the  land  lying  between  that  line  an'd  the 
ocean,  but  also  that  the  line  thus  established 
was  in  fact  above  the  line  of  ordinary  high 
water.  • 

Another  claim  of  defendant  yet  remains  to 
he  examined. 

March  30,  1903,  Mrs.  Kelley  conveyed  to 
Turner  and  Young  the  land  lying  between  the 
275-foot  boundary  line  and  the  ocean,  and 
by  mesne  conveyances  Turner  became  the  sole 
owner  vmder  that  conveyance.  The  final 
deed  to  Turner  in  severalty  was  dated  April 
10, 1008.  In  the  meantime  (January  20, 1908) 
Hilton  conveyed  to  Yocum  lot  14  (»  the  Kel- 
ley map.  This  conveyance  was  made  by  de- 
scribing that  lot  by  metes  and  bounds,  and 
did  not  call  for  the  ocean  as  a  boundary. 
By  mesne  conveyances  one  Aiken  became 
owner  of  lot  14  on  the  Kelley  map  September 
1,  1908.  AU  these  deeds  in  the  Aiken  title 
contain  the  same  description  as  that  In  the 
(deed  from  Hilton  to  Yocum.  Defendant,  Mrs. 
Vare,  now  owns  lot  14  under  the  Aiken  title, 
but  the  deed  from  Aiken  to  defendant,  Mrs. 
Vare,  contains  a  description  calling  for  the 
ocean  as  a  boundary.  November  19,  1908, 
Turner,  as  grantee  of  Mrs.  Kelley  of  the  land 
outside  of  lot  14  extending  to  the  ocean,  ex- 
ecute a  deed  to  one  R^chner  for  a  lot  ad- 
jacent to  and  ooeanward  of  lot  14  and  of  the 
same  size  as  lot  14.  That  deed  describes  the 
lot  by  metes  and  bounds,  and  does  not  call 
for  the  ocean  as  a  boundary,  and  contains 
the  following  covenant: 

"Provided  however,  and  It  Is  hereby  expressly 
agreed  and  understood,  that  this  conveyance  is 
for  a  definite  tract  of  land,  and  that  the  said 
party  of  the  second  part,  his  heirs  or  assigns,  de- 
rive no  title  to  lands  ooeanward  of  the  tract 
hereby  conveyed  by  reason  of  the  said  Atlantic 
Ocean  at  any  time  in  the  future  encroaching 
upon  said  land  hereby  conveyed,  and  upon  said 
ocean  receding  from  lands  hereby  conveyed  the 
title  to  said  lands  ooeanward  of  said  lands  here- 
by conveyed  remains  in  said  Jesse  K.  Turner, 
his  heirs  and  assigns,  it  is  also  understood  and 
agreed  that  in  no  case  shall  the  said  party  of 
the  second  part,  his  heirs  or  assign,  have  the 
right  to  apply  for  a  riparian  grant  in  front  of 
the  lands  hereby  conveyed,  such  a  right  being  ex- 
pressly reserved  to  the  said  Jesse  R.  Turner, 
bis  heirs  and  assigns,  it  is  hereby  agreed  that 


the  present  hi^-water  line  is  ocean  ward  of  the 
lands  hereby  conveyed,  which  lands  do  not  bor- 
der on  the  Atlantic  Ocean,  but  that  lands  now 
owned  by  Jesse  R.  Turner  in  front  of  lands 
hereby  conveyed  do  border  on  Atlantic  Ocean, 
and  that  he,  the  said  Jesse  R.  Tamer,  his  heirs 
and  assigns,  have  the  exclusive  right  of  applying 
for  said  riparian  grant  under  all  circumstances. 

Notwithstanding  the  above  covenant,  Beicb- 
ner,  by  quitclaim  deed  dated  August  31,  1909, 
conveyed  to  Aiken  territory  embradiig  lot 
14  on  the  Kelley  map  and  all  land  outside 
thereof  extending  to  the  ocean.  The  deed 
fr<xn  Aiken  to  defendant  Mrs.  Vare  accord- 
ingly includes  wiuttever  rights  Aiken  pay 
have  acquired  by  the  quitclaim  deed  which 
be  received  from  Relchner. 

Defendant  has  accordingly  made  claim 
that  the  deed  from  Turner  to  Relchner  of 
November  19,  1908,  although  purporting  to 
extend  only  39  feet  south  from  lot  14  of  the 
Kelley  map,  1.  e.,  from  the  275-foot  bound- 
ary line  heretofore  described,  and,  although 
containing  the  covenant  above  quoted,  in 
fact  extended  to  the  ocean,  because  the  ocean 
was  at  that  time  less  than  39  feet  southerly 
of  the  southerly  line  of  lot  14.  In  conse- 
quence of  that  claim  testimony  of  witnesses 
has  been  heard  touching  the  location  of  or- 
dinary high  tide  November  19,  1908.  It 
should  also  be  noted  that  Aiken,  prior  to  his 
conveyance  to  defendant,  also  procured  quit- 
claim deeds  from  both  Hilton  and  Yocum 
covering  the  territory  between  the  northerly 
line  of  lot  14  and  the  ocean. 

The  same  or  even  greater  difficulties  have 
been  encountered  in  defendant's  effort  to  es- 
tablish that  In  the  fall  of  1908  the  line  of 
ordinary  high  tide  was  landward  of  29  feet 
south  of  the  southerly  boundary  of  lot  14 
as  shown  on  the  Kelley  map.  AU  witnesses 
appear  to  agree  that  the  beach  front  has 
gradually  made  out  or  oceanward  from  1901 
or  prior  thereto  to  the  present  time,  but  do 
not  agree  as  to  the  line  of  high  tide  in  1908, 
and  I  am  convinced  that  upon  the  whole 
evidence  no  finding  can  be  adequately  sup- 
ported to  the  effect  that  in  1908  the  line  of 
ordinary  high  water  was  not  oceanward  of 
the  exterior  boundary  described  in  the  deed 
from  Turner  to  Relchner — that  is,  a  line  dis- 
tant 814  feet  southerly  from  and  parallel  to 
Atlantic  avenue.  But,  should  it  be  adequate- 
ly established  that  at  the  date  of  the  Tar- 
ner-Relchner  deed  ordinary  high  tides  ex* 
tended  shoreward  of  that  Une,  it  is  dllBcalt 
to  see  how  Relchner,  or  defendant  claiming 
under  him,  could  acquire  title  to  the  accre- 
tions as  against  Turner  contrary  to  the  cove- 
nants of  Reichner's  deed  above  quoted. 

My  condusions  are  that  the  deed  of  De- 
cember 30,  1901,  from  Mrs.  Kelley  to  Hilton, 
which  deed  embraced  lot  14  on  the  Kelley 
map,  did  not  constitute  Hilton  a  riparian 
owner,  but  that,  on  the  contrary,  Mrs.  Kelley 
at  that  time  remained  the  owner  of  "fast 
land"  outside  or  oceanward  of  lot  14,  which 
land  so  owned  by  her  extended  from  lot  14 
to  the  ocean,  that  Turner,  as  grantee  of  Mrs. 


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COMMONWEALTH  v.  MAMATET 


731 


Kelley,  by  mesne  conveyances  became  the 
riparian  owner,  and  that  his  riparian  owner- 
ship was  not  divested  by  the  deed  ot  Novem- 
ber 19,  1908,  and  that  on  May  11,  1914,  as 
such  riparian  owner.  Turner  was  entitled  to 
receive  from  the  state  the  riparian  lease  of 
that  date.  It  follows  that  complainant,  as 
grantee  of  Turner,  became  the  owner  of  so 
much  of  the  locus  in  quo  as  may  now  be 
above  the  ordinary  line  of  high  tide,  and 
lessee,  under  the  Turner  riparian  lease,  of 
so  much  of  the  locus  in  quo  as  may  at  this 
time  be  ontside  or  oceanward  of  the  ordinary 
line  of  high  tide. 

I  will  advise  a  decree  pursuant  to  the 
prayer  of  the  bllL 

(2ET  Fa.  8») 

MA6IBB  V.  PHILADELPHIA  &  B.  RT.  CO. 

(Supreme  Court  of  Pennsylvania.     April   16, 
1917.) 

Raiusoads  «=9398(1)  —  Irjttbt  or  Track  — 
Negligence — Evidence. 
In  an  action  for  damages  for  personal  in- 
jury from  being  struck  by  defendant's  freight 
car,  evidence  held  not  to  diow  defendant's  neg- 
ligence. 

Aiq)eal  from  Court  of  Common  Pleas,  PliU- 
adelpbla  County. 

Trespass  by  Kajman  Magler  against  the 
Philadelphia  &  Reeding  Railway  Company 
to  recover  damages  for  personal  injury.  Ver* 
diet  for  deffflidant  by  direction  of  the  court, 
and  Judgment  thereon,  and  jdalntUf  appeals. 
Affirmed. 

AiKued  before  BROWN,  C.  J.,  and  MES- 
TBBZAT,  POTTER,  STEWART,  and  FRAZ- 
BR,  JJ. 

Daniel  O.  Murphy,  of  Philadelphia,  for  ap- 
pellant Wm.  Clarke  Mason,  of  Philadelphia, 
for  appellea 

POTTER,  J.  In  this  suit  to  recover  dam- 
ages for  personal  injuries,  the  trial  judge 
i;ave  binding  Instructions  in  favor  of  defend- 
ant company,  upon  the  ground  that  there 
was  no  evid^ice  of  negligence  upon  the  part 
ot  plaintiff  sufficient  to  justify  its  submission 
to  the  jury,  and  for  the  further  reason  that, 
even  If  any  such  Inference  could  be  drawn 
from  idalntifTs  testimony,  it  was  dear  that 
he   was   guilty   of   contributory    negligence. 

We  are  not  convinced  that  the  court  below 
erred  in  Its  conclusion,  or  that  we  should  dis- 
turb the  judgment  entered  upon  the  verdict 
directed  by  the  court  The  plalntlfT  in  a 
vague  way  undertook  to  locate  the  accident 
at  a  cros.sing  upon  Rose  street,  in  the  bor- 
ough of  Tamaqua;  but  his  story  was  inco- 
herent He  said  he  neither  saw  nor  heard  a 
train,  but  that  as  he  stepped  upon  the  third 
track  he  was  struck  by  a  box  car.  Plaintiff 
did  not  show  that  the  box  car  was  operated  by 
the  defendant  company,  or  that  there  was 
any  shifting  of  cars  at  that  time  and  place. 
On  the  other  hand,  from  the  evidence  of  sev- 


eral witnesses,  it  appeared  that  pi  lor  to  the 
accident  plaintiff  was  so  much  under  the  in- 
fluence of  liquor  that  he  did  not  know  where 
he  was  or  where  he  was  going.  The  physi- 
cian, who  was  called  to  attend  him  after  the 
accident,  testified  that  he  was  at  that  time 
visibly  Intoxicated.  From  the  evidence  of  the 
witnesses,  who  found  him  after  the  accident, 
and  picked  him  up  and  cared  for  him.  It  ap- 
peared that  he  was  found  beside  the  railroad 
track,  with  his  foot  cut  off  and  lying  against 
the  rail,  at  a  point  more  than  1,900  feet  from 
any  crossing.  Plaintiff  made  no  denial  of  the 
fact  that  he  was  found  after  the  accident  at 
the  place  indicated,  nor  did  he  attempt  to 
explain  how  he  could' possibly  have  been  at 
that  point  with  his  amputated  foot,  bad  the 
accident  occurred  at  the  crossing,  or  at  any 
point  other  than  that  at  which  he  was  found. 
E^roin  the  case  as  here  presented  by  the  plain- 
tiff, the  jury  could  not  reasonably  have 
found  that  the  defendant  was  negligent  or 
that  it  failed  to  discharge  any  duty  whldi  it 
owed  to  the  plaintiff,  and  a  verdict  In  his 
favor  could  not  be  permitted  to  stand. 

The  judgment  on  the  verdict  directed  in  fa- 
vor of  defendant  is  therefore  affirmed. 

(257  Pa.  327) 

COMMONWEALTH  ex  reL  ALEXOVITS 

et  ai  V.  MAMATEY  et  at 

(Supreme  Court  of  Pennsylvania.     March  23, 

1917.) 

Appeax  ANn  EsBOB  ®=>1138— AcADEinc  Ques- 
tion—Affismanck. 
On  appeal  from  a  jadgment  on  a  verdict  for 
defendants  in  a  quo  warranto  proceeding  to  test 
their  right  to  hold  offices  in  a  corporation,  where 
it  appeared  that  the  terms  of  tneir  offices  bad 
expired,  the  question  was  merely  academic,  and 
the  judgment  of  the  lower  court  will  be  affirmed, 
without  regard  to  the  merits. 

Appeal  from  Court  of  Common  Pleas,  Al- 
legheny County. 

Quo  warranto  by  the  Commonwealth  of 
Pennsylvania,  on  relation  of  Leonard  S.  Alex- 
ovlts  and  others,  against  Albert  Mamatey  and 
others,  to  test  the  right  of  defendants  to 
hold  office  as  directors  of  a  corporation  of  the 
first  class.  Judgment  for  defendants,  motion 
for  judgment  n.  o.  v.  denied,  and  plaintiffs 
appeal.     Affirmed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TREZAT,  STEWART,  MOSOHZISKEIt,  and 
rRAZER,  JJ. 

G.  B.  Prlchard,  of  Pittsburgh,  for  appel- 
lants. Thos.  S.  Brown  and  R.  A.  &  James 
Ralph,  all  of  Pittsburgh,  for  appellees. 

P£at,  CURIAM.  The  complaint  of  the  ap- 
pellants at  the  time  this  quo  warranto  pro- 
ceeding was  instituted  was  that  the  appel- 
lees were  unlawfully  holding  offices,  and  the 
writ  was  invoked  to  oust  them  therefrom. 
On  January  1,  1917,  the  term  of  the  office  to 
which  each  of  them  had  been  elected  expired, 
and,  when  this  appeal  was  argued,  at  a  later 


«=sFor  otber  casM  lae  aame  toolc  and  KEY-NUMB£R  In  all  Key-Numberad  Digest*  and  Indexa* 


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732 


101  ATLANTIC  REPORTER 


(Pa. 


date,  tbe  question  Involred  was  purely  ac- 
ademlc  The  facts  are  either  admitted  or  un- 
disputed; but  we  could  not  enter  Judgment 
of  ouster,  for  tbe  reason  stated,  even  if  there 
were  merit  in  appellants'  contention. 
Judgment  affirmed. 

(267  Pa.  MO 
OLOUD,  STILES  &  WORK,  Inc.,  r.  Wllr 
LIAM8. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

1.  SET-OfP     and     C0UNTEBCI.AIK     «=>34(1)   — 

Subject-Mattbr  of  Set-Oitf. 
In  an  action  on  a  written  contract  for  the 
construction  of  a  aewei'  and  on  verbal  contract 
for  goods  sold,  defendant  cannot  counterclaim 
an  alleged  wage  claim,  but  in  fact  undivided 
profits  due  him  as  a  stockholder  in  the  plaintiff 
corporation. 

2.  Afpbal  and  Ebbob  4=3748(1)  —  AsaiON- 

KXNTS  OF  EBBOB — SUFFICIZNCT. 

An  appeal  will  be  quashed,  where  the  rules 
relating  to  assignments  of  error  are  not  fol- 
lowed. 

Appeal  from  Court  of  Common  Pleas,  Del- 
aware County. 

Action  by  (3oud,  Stiles  &  Work,  Incorpo- 
rated, against  John  J.  Williams.  From  a 
verdict  for  plaintiff,  defendant  appeals.  Ap- 
peal Quashed. 

From  the  record  It  appeared  that  defend- 
ant set  up  a  claim  for  wages  alleged  to  be 
due  him  from  plaintiff.  It  appeared  that  the 
wage  dalm  was  in  fact  a  claim  for  defend- 
ant's share  of  the  undivided  profits  of  the 
plaintiff  corporation  in  which  he  was  a  stock- 
holder. The  trial  judge  withdrew  the  coun- 
terclaim from  the  consideration  of  the  Jury. 

Argued  before  BROWN,  C.  J.,  and  M:ES- 
TREZAT,  STEWART.  MOSCHZISKER,  and 
WALLING.  JJ. 

John  B.  McDonough,  of  (Chester,  for  ap- 
pellant Klngsley  Montgomery,  of  Chester, 
for  appellee; 

PER  CURIAM.  [1, 2]  There  is  no  merit  In 
thla  appeal,  and,  even  if  there  were.  It  could 
not  be  sustained,  in  view  of  the  disregard  of 
the  rule  relating  to  assignments  of  error. 

Appeal  quashed. 


(2S7  Pa.  3«» 
SINKING  SPRING  WATER  CO.  v.  GRINO. 
(Supreme  Court  of  Pennsylvania.    March  23, 

1917.) 
L  Judgment  €=»217— "Final  Jddomkwt." 

No  judgment  or  decree  is  final  that  does  not 
terminate  the  litigation  between  the  parties  to 
the  suit. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  iHrst  and  Second  Series,  E^al  De- 
cree or  Judgment. 

2.  Appeal  and  Ebbob  «=378(1)— Jitdgiients 
Appealable— "Final  Judgment." 
A  decree  dismissing  exceptions  to  a  petition 
for  the  appointment  of  viewers  to  assess  dam- 
ages for  the  taking  of  property  by  eminent  do- 
main was  not  final,  so  that  an  appeal  therefrom 
would  be  quashed. 

Appeal  from  0>urt  of  Common  Pleas,  Berks 
County. 

Proceeding  by  the  Sinking  Spring  Water 
Company  against  Catharine  Gring.  From  a 
decree  dismissing  exceptions  to  petition  for 
appointment  of  viewers,  defendant  appeals. 
Appeal  quashed. 

Argued  before  BROWN,  a  J.,  and  MES- 
TREZAT.  STEWART,  MOSCHZISKER,  and 
FRAZEB,  JJ. 

Cyrus  G.  Derr,  of  Reading,  for  appellant 
Edgar  S.  Richardson,  of  Beading,  for  appel- 
lee. 

PER,  CURIAM.  This  appeal  Is  from  the  dis- 
missal of  exceptions  to  the  petition  of  the 
appellee  for  the  appointment  of  viewers  to 
assess  the  damages,  if  any,  sustained  by  the 
appellant  In  its  taking  her  property  in  the 
ezerdse  of  an  alleged  right  of  eminent  do- 
main. The  action  of  the  court  below  Is  clear- 
ly not  a  final  decree.  No  Judgment  or  decree 
is  final  that  does  not  terminate  the  litigation 
between  the  parties  to  the  suit  Pennsyl- 
vania Steel  Company's  App.,  161  Pa.  671.  20 
AtL  294.  The  appeal  Is  therefore  quashed,  at 
appellant's  costs,  without  prejudice  to  her 
right  to  raise,  in  this  court  oa  appeal  from 
a  final  decree  against  her  In  this  proceeding, 
or  by  a  proper  independent  proceeding  to  be 
Instituted  by  her,  the  question  of  the  right 
or  franchise  of  the  appellant  to  take  her  prop- 
erty. 

Appeal  quashed. 


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POWKK  V.  OVBRHOIiT 


733 


POWBJR  ▼.  OVEKHOI/r. 

(Supreme  Ooort  of  Pennsrlvaaia.     March  19, 
1»17.) 

WiLta  «=»38(3)  —  Vauditt  —  Ikbarx  Delu- 
sion. 
Where  a  testatrix,  when  executing  a  will 
leaving  the  bulk  of  her  estate  to  one  of  her  two 
nieces,  was  laboring  under  an  insane  delusion 
that  the  other  waa  guilty  of  theft  from  her,  and 
for  that  reason  made  no  gift  to  such  niece,  except 
the  property  supposed  to  have  been  stolen  by 
her,  the  will  cannot  be  sustained. 

Appeal  from  Coart  of  C(»nm(m  Pleas, 
Chester  County. 

Action  by  Emma  McClellan  Power  against 
Susan  McClellan  Overbolt.  From  a  Judgment 
for  plaintiff  on  an  issue  of  devisavlt  vel  non, 
defendant  appeals.    Affirmed. 

The  facts  appear  in  the  following  opinion 
by  Hanse,  3.,  anr  defendant's  motions  for  a 
new  trial  and  for  judgment  n.  o.  T.: 

The  verdict  of  the  jury  in  favor  of  the  plaln- 
tlff  determined  that  a  certain  paper  writing,  dat- 
ed May  31,  1913,  was  not  the  valid  will  of  Miss 
Tfaomasine  D.  Boyer.  The  document  was  at- 
tacked on  two  grounds :  First,  that  Miss  Boyer 
lacked  general  mental  capacity  when  it  was 
executed ;  and,  second,  that  it  was  the  product  of 
an  insane  delusion  entertained  by  her  toward  the 
plaintiff,  her  niece.  The  jury  announced  that 
thdr  verdict  was  based  upon  the  second  ground — 
that  concluding  that  the  tesUtriz  was  poaaexed 
of  general  mental  capacity. 

Defendant's  request  for  binding  instructions 
having  been  refused,  and  the  verdict  having 
heen  adverse,  we  are  now  asked  to  enter  judg- 
ment notwithstanding  the  verdict  or  to  grant  a 
new  trial— the  latter  request  being  based  on 
the  suggestion  that  the  verdict  is  against  the 
evidence  and  the  weight  of  the  evidence.  It  is 
eameetly  contended  on  behalf  of  the  defendant 
that  the  situation  herej)re8ented  is  ruled  by  Mc- 
Govran's  Estate,  185  Pa,  208,  M>  AtL  816,  amd 
Hemingway's  Estate.  196  Pa.  291,  46  Atl.  726. 
78  Ant  St  Rep.  816,  and  that,  in  the  light  of 
those  cases,  the  verdict  should  he  disregarded 
and  judgment  entoied  accordingly. 

When  the  plaintiff  attacked  the  document  in 
question,  on  the  ground  that  it  was  the  product 
of  an  insane  delusion,  she  assumed  the  burden 
of  satisfying  the  jury,  not  only  that  such  de- 
lusion exists,  but  that  it  was  present  in  the 
mind  of  the  testatrix  when  the  docnmoit  was  ex- 
ecuted, and  that  it,  in  fact,  controlled  the  dis- 
position of  her  property.  In  McGovran  s  Esr- 
tate,  supra,  the  contestant  whdiy  failed  to  show 
that  the  feding  entertained  by  the  testatrix 
toward  the  contestant  was  without  foundation 
either  in  reason  or  fact,  and  that  it  was  purely 
a  matter  of  imagination;  and  in  Hemingway's 
Estate,  supra,  conceding  that  the  testatrix  was 
laboring  under  a  delusion  when  the  will  was 
made,  there  was  no  testimony  from  which  a 
jury  could  properly  conclude  tiat  the  will  was 
the  result  of  the  delusion.  Alexander's  Estate, 
246  Pa.  68,  91  Aa  1042,  Ann.  Cas.  1916C  33, 
and  Kerr's  Estate,  261  Pa.  223,  96  Atl.  404,  are, 
likewise,  illustrations  of  lack  of  evidence  essen- 
tial to  sustain  a  verdict  against  a  will  when 
challenged  on  the  theory  of  insane  delusions. 
"A  ddnsion,  which  will  render  invalid  a  will 
executed  as  the  direct  result  of  it,  is  an  insane 
Velief  or  a  mere  figment  of  the  imagination — a 
belief  in  the  existence  of  something  which  docs 
not  exist  and  which  no  rational  pers<m,  in  the 
absence  of  evidence,  would  believe  to  exist." 
Alexander's  Estate,  supra. 


Was  there,  then,  in  the  case  before  us,  suffident 
testimony  frcm  which,  if  believed,  the  jniy 
could  properly  conclude  that  there  was  present 
in  the  mind  of  the  testatrix,  when  the  will  was 
made,  an  insane  belief— a  belief  that  no  rational 
person,  in  the  absence  of  evidence,  would  en- 
tertain—that the  plaintiff  had,  on  different  oe- 
casions  prior  to  the  date  of  the  will,  stolen  ar- 
ticles of  personal  property  from  her;  and  was 
that  belief,  if  it  existed,  a  controlling  factor  iu 
the  attempted  disposition  of  her  property  to  the 
prejudice  of  the  plaintiff?  The  testatrix  had 
made  a  will  in  1904  by  which,  after  some  minor 
bequests,  she  directed  that  the  residue  of  her 
estate  riiould  be  equally  divided  between  her 
two  nieces,  the  plaintiff  and  the  defendant,  and 
named  them  as  executors.  In  1911,  she  made  a 
codicil  to  this  will,  merely  changing  two  small 
legacies.  By  the  document  in  controversy,  the 
entire  residue  of  the  estate,  after  making  other 
dispositions  substantially  as  in  her  former  will, 
is  given  to  the  defendant,  and  she  is  named  as 
sole  e^cecutor.  To  the  plaintiff  are  bequeathed 
"one-hnlf  dozen  silver  teaspoons  marked  'M.  E. 
B.,'  one-half  dozen  silver  forks  marked  'S.  B.,* 
and  all  table  linen  and  napkins,"  and  some  other 
small  items  of  personalty. 

To  sustain  the  burden  assumed  by  her  the 
iplaintiff  Introduced  evidence  of  the  fact  that, 
shortly  prior  to  the  date  of  the  document  in  con- 
troversy, the  testatrix,  while  at  plaintiff's  house, 
charged  her  with  having  stolen  her  pockptbook. 
whereas  she  had  laid  It  in  her  bureau  drawer 
and  there  found  it  She  accused  her  of  having 
stolen  a  bed  cover,  whereas  she  had  given  it  to 
the  plaintiff  years  before.  In  the  latter  part  of 
June,  1912.  she  charged  the  plaintiff  with  having 
taken  a  pair  of  sleeve  buttons  from  her  room  at 
her  bonrding  house  in  West  Chester,  while  the 
plaintiff  was  visiting  her  there,  and.  when  the 
plaintiff  returned  to  her  home  in  Western  Penn- 
sylvania, the  testatrix  wrote  her  on  June  28, 
1912,  reiterating  the  chanre.  and.  after  refer- 
ring to  the  buttons,  said,  "No  one  has  any  right 
to  anything  that  belongs  to  me,  unless  I  give  it 
to  them,  and  has  anything  that  belongs  to  me, 
if  not  returned  soon  by  express  or  some  safe 
way,  will  have  trouble  not  profitable  when  a 
certain  time  comes,  for  I  have  all  my  affairs 
arranged  some  time  a?o."  On  July  10, 1912.  she 
wrote  again  to  the  plaintiff  on  the  subject,  stat- 
ing that  she  had  not  found  the  buttons,  and 
that  she  would  place  her  trust  in  an  "All-Wise 
Providence  to  dbow  to  the  one  who  had  been 
guilty  of  this  crime,"  eta  In  April,  1913,  the 
testatrix  viritcd  the  plaintiff  at  her  home  in 
Brownsville,  Pa.,  taking  witii  her  the  spoons  and 
forks  heretofore  referred  to.  These  she  gave  to 
the  plaintiff,  and  the  day  following  she  stoutly 
asserted  that  the  plaintiff  had  stolen  them— had 
"snatched  them  out  of  her  hands."  That  there 
was  any  foundation  for  any  of  these  charges 
Is  not  pretended.  That  they  were  utterly  with- 
out foundation  is  beyond  question.  They  were 
mere  figments  of  a  mind  disordered  on  a  particu- 
lar subject  Tlere  were  no  facts  upon  which 
any  sane  person  could  reach  such  conclusions, 
nor  is  it  contended  that  there  were  any  facts  or 
circumstances  present  upon  which  such  charges 
could  rest,  or  from  which  such  conclusions  could 
rationally  follow. 

Almost  immediately  following  the  charges  with 
reference  to  the  spoons  and  forks,  the  testatrix 
left  the  home  of  the  plaintiff  and  visited  the  de- 
fendant at  her  home  in  Scottdale,  some  two 
miles  distant.  While  there  she  expressed  a  de- 
sire to  have  some  changes  made  in  her  will. 
She  was  taken  to  the  office  of  B.  A.  Wirtner, 
Esq.,  a  member  of  the  Westmoreland  county 
bar.  She  indicated  to  him  the  changes  she  de- 
sired to  make,  nnd  in  the  course  of  their  con- 
versation she  "remarked  that  her  niece  [the 
plaintiff]    hadn't    treated    her    properly.     She 


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hadn't  treated  ber  the  wa;  she  thought  (he  ought 
to  be  treated."  What  she  had  in  her  mind  she 
did  not  dirulge  to  the  scriTcner.  A  new  will— the 
paper  in  question — waa  prepared  and  executed 
two  or  three  days  following  the  visit  to  Wirtner. 
Later  the  testatrix  returned  to  West  Che.^ter, 
and  April  15,  1S>14,  took  up  ber  home  with  Mrs. 
Zaidce  T.  Ijeedom.  Shortly  thereafter,  in  con- 
Tersation  with  Mrs.  Leedom,  the  testatrix  told 
her,  in  substance,  that  "while  she  [the  testatrix] 
was  there  [at  plaintilTa  home]  she  [plaintiff] 
had  'stolen  spoons  or  forks,'  the  witness  could 
not  recollect  which,  and  followed  the  remark 
with  the  statement.  That  waa  all  she  would 
tner  get.'  " 

In  the  light  of  this  testimony  we  cannot  say 
that  there  waa  not  sufficient  evidence  from 
whidi  this  jury  could  find  that  the  mind  of 
this  testatrix  was  not  controlled  by  an  insane 
delusion  to  the  detriment  of  the  plaintiff.  That 
abe  believed  that  plaintiff  had  stolen  from  her 
is  beyond  question  under  the  evidence.  That  no 
•ane  mind  could  entertain  this  belief  in  view  of 
the  circumstances  is  too  clear  for  controversy. 
That  she  entertained  this  delusion  when  she  ex- 
pressed herself  about  the  plaintiff  to  the  scriv- 
ener is  the  only  reasonable  conclusion  to  be 
drawn  from  the  remark  she  made,  especially  so 
when  considered  in  connection  with  the  threat 
conUined  in  her  letter  of  June  26,  1912,  to  the 
plaintiff.  That  this  delusion  was  a  potent  fac- 
tor in  her  mind  when  she  sought  to  dispose  of  her 
property  by  the  paper  in  question  would  seem  to 
be  plain,  when  it  is  remembered  that,  after  the 
document  was  executed  and  she  had  returned  to 
West  Chester,  she  repeated  the  charges  to  Mrs. 
Leedom,  specifying  the  articles  stolen — spoons 
and  forks— and  said,  "That  was  all  she  [the 
plaintiCn  would  ever  get"  She  had  then  dis- 
posed of  her  estate  in  substantially  this  fashion 
so  far  as  the  plaintiff  was  concerned. 

It  was  clearly  the  province  of  the  jury,  under 
all  the  evidence  to  determine  whether  there  was, 
in  fact,  a  delusion,  and  whether  it  waa  present 
In  and  operative  upon  the  mind  of  the  testntrix, 
when  the  will  in  controversy  was  made.  There 
was  sufficient  evidence  to  sustain  the  verdict, 
and  we  must  therefore  dismiss  the  rule  for  judg- 
ment and  the  rule  for  a  new  trial. 

Argtied  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKBR,  and 
WALLING,  JJ. 

Arthnr  Parke,  of  West  Cftester,  for  ap- 
pellant Robert  8.  Gawthrop,  of  West  Ches- 
ter, for  appellee. 

PBR  CURIAM.  The  Judgment  In  this 
case  la  afflnned,  on  the  opinion  of  the  learned 
court  below  discharging  the  rules  for  judg- 
ment son  obstante  veredicto  and  tor  a  new 
trial. 

(267  Fa.  307) 

MOUNTAIN  CITY  WATER  CO.  OF  FRACK- 

VILLB  V.  HARLEIGIl-BROOKWOOD 

COAL  CO. 

(Supreme  Court  of  Pennsylvania.     March  23, 

1917.) 

Waters  and  Watbb  Coukses  4s»284— Con- 
tracts—Construction— I  NTENT. 

A  water  company  agreed  to  furnish  a  coal 
company  with  water  to  the  amount  of  250,000 ' 
gallons  per  day  should  there  be  that  much  sur- 1 
plus  after  supplying  the  residents  of  a  named  i 
town,  and  the  contrnct  further  provided  for  a 
minimum  charge  of  $900  per  year  regardless  of  I 
the  amount  of  water  furnished.  Thereafter  the  ' 
contract  was  modified  so  as  to  provide  for  a  I 


greater  compensation  for  the  amount  of  \rater 
furnished  daily  in  excess  of  60,000  gallons. 
Held,  that  the  coal  company  was  not  obligated 
to  receive  250,000  gallons  of  water  per  day,  but 
was  bound  only  to  receive  water  measured  bj 
the  minimum  annual  rental  of  $900. 

Appeal  from  Court  of  Common  Pleas, 
Schuylkill  County. 

Action  by  the  Monntain  City  Water  Com- 
pany of  Frackville  against  the  Uarldgb- 
Brookwood  Coal  Company.  From  a  Judg- 
ment for  defendant,  plaintiff  appeals.  Af- 
firmed. 

Assumpsit  on  a  contract  Defendant  filed 
an  affidavit  of  defense  which  was  In  tfect 
a  demurrer  to  the  statement  of  claim. 

Bechtel,  P.  J.,  filed  the  following  opinion  In 
the  court  of  common  pleas: 

This  case  comes  before  us  on  plaintiff's  dec- 
laration and  defendant's  affidavit  of  defense, 
raising  the  question  of  law  that  the  statement  of 
claim  is  insufficient  to  sustain  the  claim  made 
by  plaintiff.  The  controversy  arises  out  of  a 
contract  entered  into  between  the  plaintiff  and 
the  defendant  on  the  24th  of  April,  1912,  where- 
in and  whereby  the  plaintiff  claims  that  the  de- 
fendant was  bound  to  receive  from  him  250,000 
gallons  of  water  a  day  at  5  cents  per  thousand 
gallons.  This  contract  was  to  run  for  a  period 
of  10  years  and  continued  as  originally  drawn  un- 
til the  13th  of  May,  1915,  at  which  time  a  corre- 
spondence began  between  plaintiff  and  defendant, 
as  the  result  of  which  it  was  agreed  that  the  de- 
fendant would  pay  to  the  plaintiff  10  cents  per 
thousand  gallons  for  all  water  used  over  60,000 
gallons  per  day;  all  the  other  terms  and  condi- 
tions of  the  contract  to  remain  unchanged.  This 
ampjidment  went  into  effect  as  of  date  of  June 
1,  1015.  The  plaintiff's  declaration  sets  forth 
that  on  December  28,  1916,  it  was  capable  of 
supplying  the  defendant  company  with  a  daily 
supply  of  250.000  gallons  of  water,  and  on  that 
date  gave  notice  to  the  defendant  company  of 
its  reodiness  and  willingness  to  supply  the  said 
quantity  of  water. 

The  contract  contains  the  further  proviso  that 
if  the  quantity  of  water  furnished  at  the  meter 
shall  not  in  any  one  year,  during  the  continu- 
ance of  this  contract  at  the  rate  of  five  cents  per 
1,000  gallons,  amount  to  $900  or  more,  the  said 
party  of  the  second  part  shall  nevertheless  pay 
to  the  said  party  of  the  first  part  the  sum  of 
$900  for  each  and  every  year  in  which  the  quan- 
tity of  water  furnisbe<l  shall  not  equal  or  ex- 
ceed the  said  sum  of  $900. 

The  prior  obligation  of  the  plaintiff  company 
to  furnish  the  residents  of  Frackville  with  wa- 
ter is  also  recognized  in  the  contract,  there  be- 
ing a  proviso  contained  therein  that  the  water 
to  be  lurnished  to  the  defendant  company  shall 
only  be  furnished  in  the  event  of  there  being 
suflficipnt  left  after  this  prior  obligation  of  the 
plaintiff  has  been  discharged,  and  that  In  the 
event  that  there  is  no  water  left  for  the  defend- 
ant, the  nlnintiff  shall  not  be  held  liable  in  dam- 
ages therefor. 

This  suit  Is  brought  to  recover  the  snm  of 
$45,085.33,  which  is  based  on  the  calculation 
of  a  consumption  of  250,000  gallons  of  water 
per  day  from  January  1,  1916,  to  April  24, 
1922.  Tlie  case  turns  on  the  question  of  wheth- 
er or  not  the  defendant  is  obligated  by  the  con- 
tract and  the  correspondence  which  later  on 
amended  it  to  receive  from  the  plaintiff  250.000 
gallons  of  water  per  day. 

It  will  he  noted  that  nowhere  in  the  contract 
or  the  correspondence  is  there  any  clause  which 
obliges  the  detendnnt  specifically  to  receive  that 
amount  of  water;  in  fact,  the  plaintiff  is  not  ob- 
ligated to  furnish  that  amount  of  water  unless 


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McMENNIMEN  r.  liEHIGH  VXLUST  COAL  00. 


735 


there  be  that  much  anrplaa  after  hia  prior 
obligations  have  been  discharged.  There  is  no 
dispute  of  the  fact  that  prior  to  January  1, 
1916,  defendant  was  receiTinx  approximately 
120,000  gallons  of  water  per  day,  which  was 
all  the  plaintiff  could  fnmish.  Plaintiff  con- 
tends that  it  was  compelled  to  entail  consider- 
able expense  in  increasing  its  water  supply  in 
order  to  comply  with  the  demands  of  the  de- 
fendant for  the  famishing  of  250,000  gallons  of 
water  per  day,  and  that  therefore  defendant 
shoold  be  obliged  to  receive  it  and  pay  for  it. 
We  cannot  asree  with  this  contention  because 
the  correspondence  discloses  the  fact  that  the 
plaintiff  wished  to  raise  not  only  its  rate  of 
water,  but  also  the  minimum  rental  which  it 
sought  to  increase  from  $900  to  $3,600  per  year. 
Defendant  refused  to  agree  to  this  proposition, 
and  in  the  letter  of  May  27,  1915,  which  was 
accepted  by  plaintiff  and  formed  the  basis  of  the 
amended  contract,  appears  this  sentence:  "Our 
view  is  that  we  have  an  existing  contract  with 
yon,  but  one  with  which  you  are  not  satisfied." 
Tills  letter  makes  the  proposition  that  defendant 
will  pay  ten  cents  per  thousand  gallons  for  all 
water  "which  we  take  from  you"  in  excess  of 
60.000  gallons  per  day. 

It  seems  to  ii8  too  plain  for  argument  that  de- 
fendant agreed  to  the  Increased  rate  for  its 
water  (nearly  donble  what  it  had  been  paying 
before)  in  order  to  have  plaintiff  increase  its 
supply,  and  that  plaintiff  did  Increase  its  Kupnly 
in  consideration  of  this  concrasion  made  by  the 
defendant.  It  certainly  would  not  appear  just 
to  construe  this  contract  as  compelling  defend- 
ant to  receive  250.000  gallons  of  water  per  day 
when  there  is  nothing  contained  therein  compel- 
ling plaintiff  to  furnish  that  amount  It  seems  to 
TI8  that  it  was  intended  by  the  parties  and  wag 
expressed  In  the  contract  that  the  amount  which 
the  defendant  was  obligated  to  receive  was  to  be 
measured  by  the  minimum  rental,  to  wit,  $900 
per  year,  and  our  conclusion  in  this  respect  is 
strengthened  by  reason  of  the  fact  that  plaintiff 
attempted  to  increase  this  amount  to  $3,600. 
What  was  the  object  of  this  minimum  rental 
proposition  if  it  wag  not  to  guarantee  to  the 
plaintiff  the  consumption  of  the  water  represent- 
ed by  it? 

In  addition  to  this,  plaintiff  baa  brought  suit 
against  the  defendant  for  the  aum  of  250.000 
nllona  of  water  per  day  to  April  24,  1922. 
Whether  or  not  plaintiff  can  furnish  this  water 
ia  problematical.  It  says  itself  that  the  demands 
upon  its  water  supply  are  constantly  increasing 
by  those  who  have  the  first  claim  upon  it,  and  it 
certainly  does  not  seem  to  ns  just  to  compel  the 
defendants  to  pay  for  water  which  it  has  no 
guaranty  whatever  shall  be  delivered  to  it.  In 
addition  to  this,  the  amended  contract,  aa  con- 
tained in  the  letter  as  hereinbefore  quoted,  aim- 
ply  obligates  the  defendant  to  pay  10  cents  per 
tiiousand  gallons  for  all  water  which  "it  takes" 
in  excess  of  60,000  gallons  per  day.  To  construe 
the  contract  as  contended  for  by  the  plaintiff 
would  be  to  require  the  writint;  into  it  of  a  pro- 
'Hsioo  which  it  does  not  contain,  in  addition  to 
which  we  do  not  think  the  obligation*  would  be 
mutual. 

We  have  therefore  reached  the  conclusion  that 
the  plaintiff's  declaration  filed  in  thia  case  is  In- 
sufficient in  law  to  sustain  the  claim  therein  al- 
leged, and  have  therefore  entered  the  decree  here- 
tofore filed  in  this  case. 

The  court  entered  judgment  for  defendant 
Plaintiff  appealed. 

Argued  before  BKOWN,  C.  J.,  and  MES- 
TUEZAT,  POTTEm,  PKAZER,  and  WAL- 
LIKG,  JJ. 

C.  IS.  Berger,  of  Pottsville,  and  James  W, 
Staull.  of  New  Bloomfleld,  for  appellant    H.  S. 


Drinker,  Jr.,  and  P.  C.  Madeira,  Jr.,  both  of 
PhUadelidila,  and  H.  M.  Bcrke,  of  Shenan- 
doah, for  appellee. 

PEB  CURIAM.  The  Jadgmeat  in  this  case 
is  affirmed  on  the  (H>inion  of  the  learned  court 
below  directing  it  to  be  entered. 

Judgment  affirmed. 

(267  Pa.  259) 
McMENNIMEN  t.  LEHIGH  VALLEY  COAL 
CO. 

(Supreme  Court  of  Pennaylyania.     March  19, 
1917.) 

1.  Master  and  Sbbvant  «=»286(4,  27)— Injtt- 
BT  TO  Skrvant  —  Tools  and  Appliances  — 

EVIDBNCK. 

In  an  action  by  the  widow  of  a  deceased 
employ^  to  recover  damages  for  his  death  on 
the  ground  of  the  master's  failure  to  furnish 
reasonably  safe  appliances  and  method  of  work, 
evidence  held  to  sustain  a  judgment  of  compul- 
sory nonsuit 

2.  Masteb  and  Skbvant  9=>219(1)  —  Assdup- 
TioN  OF  Risk— Obvious  Danoeb. 

Where  the  danger  attending  an  employe's 
work  is  obvious,  he  assumes  the  risk. 

3.  Appeal  and  Ebbob  «=>S43(2)— Action  fok 
Injubt— Neglioencb— VicK  Principal. 

Whether  a  track  boss  was  the  employer's 
vice  principal  was  unimportant,  where  the  evi- 
dence failed  to  establiah  any  specific  act  of  neg- 
ligence on  the  part  of  the  track  bosa  to  which 
the  injury  could  be  attributed. 

Appeal  from  Court  of  Common  PleaSr 
Schuylkill  County. 

Trespass  by  Anna  McMennlmen  against  the 
Lehigh  Valley  Coal  Company,  to  recover  dam- 
ages for  the  death  of  her  husband.  From  the 
direction  of  a  compulsory  nonsuit  which  the 
court  subsequently  refused  to  take  off,  plaln- 
tUT  ai4>eals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREBAT,  POTTER,  FRAZER,  and  WAL- 
UNG,  JJ. 

£klward  J.  Maginnis,  of  Oirardvllle,  and 
William  Wllhelm,  of  Pottsville,  for  appellant 
Daniel  W.  Kaercher,  of  PottsvlUe,  for  ap- 
pellee. 

POTTER,  3.  In  this  action  of  trespass,  the 
plaintiff  sought  to  recover  damages  for  the 
death  of  her  husband,  which  she  charged 
was  due  to  negligence  for  which  the  defend- 
ant was  responsible.  From  the  opinion  ot 
the  court  below  we  gather  the  facts,  as  fol- 
lows: The  husband  of  the  plaintiff  was  em- 
ployed at  Packer  No.  4  colliery  of  the  Lehigh 
Valley  Coal  Company.  On  the  day  of  the 
accident  he  was  engaged  in  helping  to  replace 
upon  the  track  of  an  Inclined  plane  a  coal 
car  which  had  become  derailed.  Small  cars 
were  used  to  convey  the  coal  to  the  breaker, 
being  hoisted  up  an  outside  plane  by  an  end- 
less chain  on  which  were  a  series  of  hooks 
slightly  curved  at  the  end,  which  fastened 
behind  the  front  axle  of  the  cars.  Safety 
catches  were  provided,  the  first  one  being 


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101  ATIiANTlO  REPORTER 


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some  21  feet  np  the  plane,  with  a  triple  safe- 
ty catch  at  the  bottom  of  the  plane.  Ex- 
tending slightly  over  the  latter,  at  the  time 
of  the  accident,  a  car  was  standing.  Another 
car  jumped  the  track  at  the  foot  of  the  plane, 
Jnst  In  front  of  the  standing  car.  One  Mc- 
Intyre,  whose  official  title  seems  to  be  that 
of  tT&ck  boss,  gathered  some  men.  Including 
McMennlmen,  plalntlfTs  hnsband,  who  was 
the  boss  carpmter,  and  attempted  to  replace 
the  car.  The  men  worked  together  at  this 
task,  the  boss  using  a  jack  and  several  other 
appliances,  but,  falling  in  their  efforts,  it  was 
suggested,  by  whom  It  does  not  appear,  that 
if  the  car  were  drawn  a  short  distance  up 
the  plane  the  task  would  be  easier.  This 
method  was  pursued.  It  was  not  shown  who 
gave  the  orders  to  the  engineer  to  raise  the 
car,  but,  after  it  had  been  advanced  some  6 
feet,  another  attempt  was  made  to  get  it  on 
the  rails.  This  was  done  by  several  of  the 
men  swinging  the  rear  of  the  car,  while  other 
men  pushed  at  the  front  end,  endeavoring 
to  swing  it  over  the  guard  rail  onto  the 
track.  During  this  effort  the  axle  in  some  un- 
explained way  <»me  out  of  the  hook  on  the 
endless  diain,  the  car  ran  backward  the  6 
feet  to  the  bottom  of  the  plane,  collided  with 
the  car  that  had  been  left  standing  over  the 
triple  catch,  and  plaintiff's  husband  was 
caught  and  killed. 

[1, 2]  Upon  the  trial,  at  the  close  of  plain- 
tiff's evidence,  a  compulsory  nonsuit  was  en- 
tered, and  from  the  refusal  of  the  court  to 
take  it  off,  plaintiff  has  am>ealed.  Her  coun- 
sel contend  that  the  track  boss,  Mclntyre,  as 
the  representative  of  defendant,  "was  In 
idiarge  of,  directing  and  superintending  the 
work  of  replacing  the  car  upon  the  track, 
and  that  he  was  negligent  In  not  securing  the 
car  in  a  reasonably  safe  manner  so  that,  if  the 
chain  hook  slipped,  the  car  would  not  plunge 
back  down  the  plane."  It  apt)ears  from  the 
evidence  that  there  was  a  chain  at  the  head 
bouse  which  the  men  might  have  used  if  they 
had  seen  prefer  to  do  so.  But  plaintiff's  wit- 
ness, O'Donnell,  testified  that  the  men  fre- 
quently put  cars  on  the  track  In  the  way  they 
were  attempting  to  do  It  in  the  present  in- 
stance. Sometimes  they  used  the  dtaln  and 
levers.  There  was  no  evidence  that  the  meth- 
od now  in  question  was  unsafe.  Nor  was  it 
shown  by  whose  orders  this  method  was 
adopted.  It  appears  to  have  been  done  by 
common  consent  of  the  workmen.  "Some  one 
of  the  crowd"  suggested  It.  The  defendant 
cannot  be  held  responsible  for  the  failure  of 
the  men  to  use  the  chain.  It  was  accessible. 
If  they  bad  thought  its  use  would  be  helpfuL 
At  the  time  of  the  accident  a  car  was  stand- 
ing partly  over  the  lower  safety  catch.  Had 
this  car  been  moved  further  down,  the  de- 
scending car  would  have  been  stopped  by 
the  safety  catch  and  the  two  cars  would  not 
have  come  in  contact.  But  it  is  not  alleged 
that  it  was  negligence  to  leave  the  lower  car 
where  It  was.     Any  of  the  men,  including 


plalntlfTs  husband,  could  have  moved  the 
car  back.  If  It  had  occurred  to  them  to  do  so. 

There  was  no  evidence  to  support  the  aver- 
ment that  the  hook  slipped  from  the  axle  be- 
cause it  had  become  worn.  On  the  contrary, 
plaintiff's  witness,  O'Boyle,  testified  that  ho 
could  not  explain  how  the  hook  happened 
to  slip  out  and  let  the  car  ran  back.  Hie 
attempt  to  replace  the  car  upon  the  trac^ 
was  made  in  an  ordinary  way,  and  the  slip- 
ping of  the  hook  seems  to  have  been  an  ac- 
cident which  no  one  was  bound  to  foresee. 
Whatever  danger  may  have  attended  the 
effort  was  obvious  to  plaintiff's  husband.  He 
was  a  skilled  mechanic,  he  was  familiar  with 
the  Incline,  and  it  was  part  of  his  duty  to 
Inspect  it  dally  and  to  keep  It  in  repair.  He 
oould  see  the  other  car  standing  a  few  feet 
away,  with  its  bumper  extending  over  the 
safety  catch.  He  seems  to  have  chosoi  his 
own  position  at  the  side  and  near  the  end  of 
the  car. 

[3]  The  track  boss,  Mclntyre,  was  not 
changed  with  committing  any  negligent  act 
while  he  was  co-operating  with  the  other  men 
In  attempting  to  get  the  car  back  upon  the 
track.  He  was  charged  with  adopting  an  un- 
safe method  of  doing  the  work,  but  the  evi- 
dence did  not  sustain  the  charge.  Whether 
Mclntyre  be  regarded  as  a  vice  principal  or 
not  Is  unimportant.  The  evidence  failed  to 
establish  any  specific  act  of  negligence  on 
the  part  of  either  Mclntyre  or  the  defendant 
company  to  which  the  death'  of  plaintiff's 
husband  can  be  justly  attributed. 

The  motion  to  take  off  the  nonsuit  waa 
properly  refused,  and  the  judgment  Is  af- 
firmed. 


(2S7  Pa.  442) 
MANCHESTER  TP.  SUP'RS  t.  WAYNE 
COUNT!  COM'RS. 

(Supreme  Court  of  Pennsylvania.    April  16, 
1917.) 

1.  Statutes  «=»16©— Bepeaii— Rbvivai/— Con- 

BTITDTIONAI.  PKOVIBIONS. 

County  commissioners  must  keep  in  lepair 
so  much  of  an  abandoned  turnpike  as  passes 
through  a  township,  as  required  by  Act  April 
20,  1005  (P.  Ia  2S7),  and  Act  April  26.  l60T 
(P.  L.  104),  where  Act  May  10.  1909  (P.  U 
499),  repealing  such  prior  acts,  was  itself  re- 
pealed by  Act  March  15,  1911  (P.  L.  21),  since 
the  rule  that,  where  a  repealing  statute  is  re- 
pealed, the  original  statute  is  revived,  waa  not 
afEected  by  Const,  art.  3,  {  6,  providing  that  no 
law  shall  be  revived,  amended,  or  extended  by 
reference  to  its  title  only,  and  that  so  much  aa 
is  revived  shall  be  re-enacted  and  published  at 
length. 

2.  STATtmEs  ®=>169— Bepiai/— CoNSTinmoN- 
AL  Provisions— CoNSTROCTiON. 

Such  constitutional  provision  is  restricted 
in  its  application  to  express  statutory  revivals 
of  prior  statutes,  and  does  not  abrogate  the 
common-law  rule  that,  when  a  repealing  statute 
is  itself  repealed,  the  first  statute  is  revived 
without  formal  words,  in  the  absence  of  any 
contrary  intention,  expressly  declared  or  necea- 
sarily  implied  from  the  enactment 


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MANCHESTER  TP.  SUP'ItS  v.  WAYNE  COUNTY  COM'RS 


737 


Appeal  ttom  Court  of  Comioon  Pleas, 
Wayne  County. 

Petition  for  mandamus  by  the  Supervisors 
of  Mancbester  Township  against  the  Commis- 
sioners of  Wayne  County.  From  a  judgment 
of  mandamus,  awarded  on  flnal  hearing,  de- 
fendants appeal.  Judgment  affirmed,  and  ap- 
peal dismissed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZEai,  and  WAL- 
LING, JJ. 

Charles  A.  McCarty  and  M.  E.  Simons, 
both  of  Honesdale,  for  appellants.  E.  C. 
Mnmford  and  J.  O.  Mumford,  both  of  Hones- 
dale,  for  appellees. 

STEWART,  J.  In  1898  the  county  of 
Wayne,  by  proceedings  instituted  under  the 
act  of  Jane  2,  1887  (P.  h.  306),  which  pro- 
vides for  the  taking  over  by  counties  of  turn- 
pike roads,  or  such  parts  of  them  as  lay 
within  their  respective  limits,  and  freeing 
the  same  from  tolls,  appropriated  the  Little 
Equinunk  and  Union  Woods  turni^ke  road, 
which  had  been  constructed  through  M:an- 
<diester  township  in  said  county.  From  that 
time  to  the  present  this  turnpike  roa'd  has 
been  used  and  maintained  as  a  township 
road  by  Manchester  township,  free  of  tolls. 
In  1916  the  supervisors  of  the  township  pre- 
sented their  petition  to  the  court  of  common 
pleas,  setting  tottix  the  above-stated  facts 
and  praying  that  a  writ  of  mandamus  issue, 
(directed  to  the  commissioners  of  the  county, 
requiring  than,  in  rdief  of  the  township,  to 
maintain  and  keep  in  repair  said  appropriate 
«d  turnpike  road.  An  alternative  writ  fol- 
lowed, to  whidli  the  conunisaloners  made  an- 
swer, admitting  the  facts  to  be  as  stated,  but 
denying  the  legal  liability  of  the  county  for 
the  maintenance  and  repair  of  the  road.  Aft- 
er a  full  hearing  of  the  case,  a  peremptory 
writ  was  awarded.  The  appeal  is  from  the 
judgment  so  rendered.  A  brief  review  of 
the  legislation  touching  the  condemnation 
and  appropriation  by  counties  of  turnpike 
roads  is  necessary  to  an  understanding  of  the 
real  issue.  The  condemnation  of  this  partic- 
ular road  wask  as  we  have  said,  under  the 
general  act  of  June  2,  1S87  (P.  U  306).  By 
the  eleventh  section  of  this  act  it  is  provided 
that: 

"When  any  turnpike,  or  portion  thereof,  shall 
have  been  condemned,  under  the  provisions  of 
this  act,  for  public  use,  free  of  toUa  or  toU- 
gates,  and  the  assessment  of  damages  therefor 
shall  have  been  paid  by  the  proper  county,  such 
turnpike,  or  portion  Uiereof,  shall  be  properly 
repaired  and  maintained  at  the  expense  of  the 

S roper  city,  township,  or  district,  as  other  pub- 
c  roads  or  streets  therein  are  by  law  repaired 
and  maintained." 

As  will  be  observed,  by  this  act,  the  bur- 
den of  the  maintenance  of  such  turnpike 
roa'd,  after  its  taking  over,  except  as  to  sudi 
parts  thereof  as  are  within  the  limits  of  the 
city,  is  placed  upon  the  townships  through 
wUch  the  road  iMsses.  The  act  makes  the 
turnpike,  when  paid  for,  a  public  road,  to  be 
101A.-47 


kept  and  maintained  as  other  public  roads. 
The  law  so  continued  until  1905,  when  by 
the  act  of  April  20,  1906  (P.  L.  237),  of  that 
year  It  was  provide  that: 

"When  any  turnpike,  or  part  thereof,  lias  been, 
or  may  hereafter  be,  appropriated  or  condemned 
for  public  use,  free  of  tolls,  under  any  existing 
laws,  and  the  assessment  of  damages  therefor 
shall  have  been  paid  by  the  proper  county,  such 
turnpike,  or  part  thereof,  shall  be  properly  re- 
paired and  maintained  at  the  expense  of  the 
county,  city  or  borough  in  which  the  said  turn- 
pike, or  part  thereof,  lies,  or  the  same  may  be 
imposed  under  any  existing  laws  by  the  said 
county,  city  or  borough." 

By  ttie  second  section  of  the  act,  all  acts 
or  parts  of  acts  inconsistent  with  the  Ijerms 
of  the  act  were  repealed.  One  certain  effect 
of  this  act  was  to  relieve  the  townships  of 
the  burden  of  repair  and  maintenance  of  the 
roads  taken  over  which  bad  l)een  imposed  on 
them  by  the  earlier  act  This  act  of  1005  was 
a  wholly  separate  and  independent  piece  of 
legislation.  It  was  not  an  amendment  of 
any  act,  nor  did  It  repeal  any  act;  it  did  not 
pretend  to  do  either.  It  did,  however,  super- 
sede so  much  of  any  existing  act  as  was  re- 
pugnant to  any  of  its  provisions.  There  was 
but  one  existing  act — the  act  of  June  2,  1887, 
supra — that  could  possibly  conflict  with  it, 
and  that  only  in  the  one  provision  in  the  ear- 
lier act  that  Imposed  the  expense  of  repair 
and  maintenance  upon  the  township,  whereas 
the  later  act  imposed  it  on  the  counties.  It 
follows  that  the  act  of  June  2, 1887,  remained 
In  full  force,  unaffected  by  the  act  of  April 
20,  1905,  except  In  the  particular  mentioned. 
Then  followed  the  act  of  April  25, 1907,  which, 
as  Indicated  in  its  title  was  amendatory  of 
the  act  of  April  20,  1905.  But  the  amend- 
ment went  no  further  than  to  bring  within 
the  provisions  of  the  earlier  act  "abandoned 
turnpikes  and  turnpikes  belonging  to  com- 
panies or  associations  which  had  been  dis- 
solved, or  may  hereafter  be  dissolved,"  leav- 
ing the  burden  of  repairing  and  maintenance 
where  the  act  of  April  20, 1905,  had  placed  it, 
namely,  on  the  counties  except  in  cities  and 
boroughs.  This  amending  act  was  without 
other  effect  on  the  act  of  June  2,  1887.  Then 
came  the  act  of  May  10,  1909,  which  in  sec- 
tion 1,  provided  as  follows : 

"When  any  turnpike,  or  part  thereof,  has  been 
or  may  hereuter  l>d  appropriated,  or  condemned 
for  public  use,  free  oi  tolls,  under  any  existing 
laws,  and  the  assessment  of  damages  therefor 
shall  have  been  paid  by  the  proper  county,  or 
when  any  turnpike  company  or  association  has 
heretofore  abandoned  or  may  hereafter  abandon 
its  turnpike,  or  any  part  thereof,  or  when  any 
turnpike  company  or  association,  owning  any 
turnpike,  has  theretofore  been  dissolved,  or  may 
hereafter  be  dissolved,  by  proceedings  under  any 
existing  laws  of  this  commonwealth,  auch  turn- 
pike, or  part  thereof,  shall  be  properly  repaired 
and  maintained  at  the  expense  of  the  township, 
city,  or  borough  in  which  the  said  turnpike,  or 
part  thereof,  lies." 

By  the  second  section  of  this  act,  the  acts 
of  April  20,  1905,  and  of  April  25,  1907,  are 
expressly  repealed;  so,  too,  "all  other  acts, 
or  parts  of  acts,  in  so  far  as  they  are  incon- 
sistent with  the  provisions  of  tills  act"    Next 


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101  ATLANTIO  RBPORTBB 


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came  the  act  of  March  15,  1911  (P.  L.  21), 
which  In  Its  terms  expressly  repealed,  with- 
out more,  the  act  of  May  10, 1900,  leaving  the 
general  act  of  1887  otherwise  unaffected. 
The  effect  of  this  act  was  to  restore  to  the 
original  act  of  June  2,  1887,  the  eleventh  sec- 
tion as  It  had  appeared  in  the  original  enact- 
ment, but  which  had  been  superseded  by  the 
act  of  1905. 

[1]  The  present  proceeding  was  begun  on 
the  theory  that  the  act  of  May  10,  1909, 
which  In  express  terms  repealed  the  acts  of 
1905  and  1907,  Itself  having  been  repealed 
by  the  act  of  March  15,  1911,  it  necessarily 
resulted  that  both  these  repealed  acts  were 
revived  and  restored.  If  this  be  a  correct 
view  of  the  law,  it  must  follow  that  the  case 
was  properly  ruled  in  the  court  below.  It  is 
insisted  on  the  part  of  appellants  that  no 
such  effect  can  be  given  to  the  repealing  act 
of  1909,  in  view  of  the  constitutional  provi- 
sion (section  6  of  article  3  of  the  Constitu- 
tion) which  declares  that: 

"No  law  shnll  be  revived,  amended,  wr  the  pro- 
visions thereof  [be]  extended,  or  conferred,  by 
reference  to  its  title  only,  but  ao  much  thereof 
as  is  revived,  •  •  •  extended  or  conferred, 
shall  be  re-enacted  and  published  at  length." 

If  this  latter  view  be  correct,  then  It  must 
result  that  with  the  faU  of  the  acts  of  1905 
and  1907  fell  also  the  act  of  June  2,  1887,  as 
an  efficient  and  operative  piece  of  legislation. 
Inasmuch  as  the  eleventh  section  of  the  lat- 
ter act,  as  originally  passed.  Imposed  the  ex- 
pense of  repair  and  maintenance  on  the  town- 
ship, and  this  section  having  been  repealed 
by  act  of  1005,  placing  the  burden  on  the 
counties,  except  as  a  revival  follows  of  one 
or  other  of  these  acts  upon  the  repealing  act 
of  1900,  the  burden  of  repair  and  mainte- 
nance rests  nowhere,  and  the  act  of  1887  Is 
worse  than  Idle.  Certainly  it  could  not  have 
been  within  the  legislative  Intent  to  produce 
such  result.  While  legislative  intent  is  prop- 
erly a  subject  for  consideration  In  the  inter- 
pretation of  statutes,  it  counts  for  nothing 
when  the  matter  for  consideration  is  the 
conformity  or  want  of  conformity  to  consti- 
tutional requirements.  It  is  the  legal  conse- 
quences of  the  repeal  of  the  act  of  1909,  and 
that  alone,  that  we  have  here  to  consider. 
Did  the  repeal  of  that  act  operate  to  revive 
and  renew  the  several  acts  which  it  bad  re- 
pealed? If  this  question  were  to  be  decided 
on  common-law  principles,  it  would  be  of 
simple  solution,  since  it  is  a  familiar  rule, 
governing  statutory  construction  under  the 
common  law,  that,  when  a  repealing  statute 
is  itself  repealed,  the  first  statute  is  revived 
without  formal  words  for  that  purpose,  in  the 
absence  of  any  contrary  intention,  expressly 
declared  or  necessarily  to  be  Implied  from 
the  enactment. 

The  contention  on  the  part  of  appellants, 
ndwever,  is  that  the  constitutional  provision 
above  quoted  has  abrogated  this  common- 
law  rule,  with  the  result  that  since  the  adop- 
tloii  jf  the  Constitution  no  act  can  be  revived 


or  renewed,  except  in  the  manner  th«e  pre- 
scribed. That  the  provision  may  be  so  read, 
without  doing  violence  to  the  language  em- 
ployed, must  be  admitted.  This,  however,  is 
far  from  conclusive,  for  If  with  equal  reason 
a  restricted  meaning  can  be  derived  from  the 
language  employed,  in  the  absence  of  any 
express  repeal  of  the  common-law  rule,  the 
presumption  that  none  was  Intended  must 
prevail.  We  say  this  in  view  of  the  situation 
that  existed  previous  to  the  adoption  of  the 
Constitution,  suggesting,  as  it  does,  the  mis- 
chief that  the  provision  was  manifestly  In- 
tended to  remedy.  It  Is  a  matter  of  common 
knowledge,  at  least  among  those  whose  duties 
have  familiarized  them  with  the  history  of 
legislation  dn  the  state,  that,  prior  to  the 
adoption  of  the  present  Constitution,  It  was 
of  so  frequent  occurrence  that  statutes  were 
revived,  or  amended,  as  the  case  might  be, 
by  simple  reference  to  the  title,  that  it  be- 
came almost  a  settled  custom  to  so  legislate, 
with  the  unfortunate  result  that  much  legis- 
lation was  enacted  improvidently,  without 
that  intelligent  consideration  and  understand- 
ing of  the  matters  Involved  which  is  so  es- 
sential to  the  procurement  of  wise  and  whole- 
some legislation.  The  purpose  of  the  provi- 
sion was  to  put  an  end  to  this  method  of 
iQgislatlng  by  requiring  in  every  case  that  the 
proposed  revival  or  amendment  be  re-enacted 
and  published  at  length,  to  the  end  that  In- 
telligent action  might  better  be  secured.  "In- 
separable from  the  history  of  the  C<«stittt- 
tion  and  the  facts  surrounding  its  creation, 
and  therefore  a  potent  elemoit  in  the  con- 
struction of  its  general  terms,  is  the  consid- 
eration of  the  objects  and  purposes  to  be  ac- 
complished, or  the  mischiefs  designed  to  be 
remedied  or  guarded  against.  In  the  interpre- 
tation of  statutes,  these  reflections  may  en- 
large or  restrict  the  natural  and  literal  sig- 
niScance  of  the  words  used,  and  they  are  ap- 
plicable with  the  same  effect  to  the  Interpre- 
tation' of  the  CX>n8tltuaon."  Endlidi  on 
Interp.  Stat  {  518. 

[2]  If  we  are  correct  in  our  statement  as 
to  the  object  and  Intent  to  be  accomplished  by 
the  constitutional  provision — and  this  we 
think  cannot  be  questioned — ^it  would  seem 
to  follow  that,  notwitlistanding  the  general 
terms  employed  in  the  constitutional  provi- 
sion, the  plain  Intent  was  that  it  should  be 
restricted  in  Its  application  to  what  may  be 
designated  as  express  statutory  revivals  as 
distinguished  from  revivals  by  oi)eration  of 
law,  since  the  latter  could  not  fall  within  tba 
mlsclilef  the  provision  was  Intended  to  guard 
against,  nor  could  Its  requirements  as  to  re- 
enactment  and  publication  be  at  all  applica- 
ble where  the  revival  was  by  common  law. 
This  particular  constitutional  provision  Is  not 
peculiar  to  our  state.  In  one  form  or  other 
it  appears  in  most  state  Constitutions  adopted 
in  recent  years.  The  fact  that  in  many  of 
the  states  which  have  adopted  the  provision 
a  legislative  enactment  has  followed  forbid- 
ding revival  of  statutes  by  the  common-law 


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SMITH  V.  PEOPLE'S  NATURAL  OAS  CO. 


739 


rule  shows  how  general  Is  the  conception  that 
more  Is  needed  to  overcome  the  common- 
law  role  than  such  a  constitntlonal  provision 
as  we  are  considering,  because  of  the  latter'a 
susceptibility  to  two  different  constructions. 
In  Pennsylvania  we  have  no  such  statutes. 
A  very  well  considered  and  entirely  convinc- 
ing opinion  Is  to  be  found  in  the  case  of  Wal- 
lace V.  Bradshaw,  54  N.  J.  Law,  175,  23  AtL 
759.  The  provision  in  the  Constitution  of  the 
state  of  New  Jersey  difFers  in  no  material 
respect  from  the  provision  in  our  own,  and 
exactly  the  same  question  we  have  here  was 
there  ajdjudicated  In  a  reversal  of  the  lower 
court  In  the  opMon  of  the  court,  as  deliver- 
ed by  the  Chief  Justice,  this  occurs  (51  N.  J. 
Law,  176,  23  Atl.  758): 

"The  phrase  that  'no  law  shall  be  revived  or 
amended  by  reference  to  its  title  alone'  cannot 
be  forced  into  a  signification  that  will  compre- 
hend any  revival  that  is-  not  a  statutory  one,  for 
there  is  not,  and  cannot  be,  revival  by  operation 
of  law  that  can  be  said  to  ojperate  on  the  act  re- 
vived 'by  reference  to  its  title  alone.'  The  clause 
obviously  would  have  to  be  interpolated  to  im- 
part to  it  that  breadth  of  efficacy  claimed  for 
m  the  decision  before  ua.  Thus  it  would  be 
necessary  to  transmute  it  into  some  such  form 
as  this:  "No  law  shall  be  revived  by  operation 
of  law,  nor  shall  it  be  revived  or  amended  by 
reference  to  its  title  alone.'  And  the  harmony 
that  would  exist  in  the  sentence  thus  construct- 
ed, and  its  freedom  from  all  tautology,  would 
aeem  to  demonstrate  that  these  methods  of  re- 
vival are  diverse  and  distinct  things,  and  that 
only  one  of  tliem  is  embraced  in  this  constitu- 
tional expression.  I  cannot  agree  to  the  prop- 
osition that  because  the  people,  in  their  Const!-' 
tution,  have  declared  that  a  law  shall  not  be 
revived  by  a  statutory  reference  to  its  title,  that 
they  have  thereby  likewise  declared  that  it  shall 
not  be  revived  by  the  operation  of  a  well-known 
rule  of  the  common  law.  And  this  is  plainly  the 
sense  in  which  the  provision  was  expounded." 

What  Is  here  stated  applies  with  equal 
force  to  the  provision  in  the  Constitution  of 
this  state,  since  there  Is  no  material  differ- 
oice  lo  the  language  employed,  and  our  con- 
clusion is  the  same  with  respect  to  the  lati- 
tude to  be  allowed  It 

The  judgment  is  aiHrmed,  and  the  appeal  is 
dismissed. 

(IS7  Pa.  4B0) 

STERLING  TP.  SUP'RS    v.  WAYNE 
COUNTY  COM'RS. 

(Supreme   CJourt   of   Pennsylvania.     April   16, 
1917.) 

Appeal  from  Court  of  Common  Pleas,  Wayne 
County. 

Mandamus  by  the  Supervisors  of  Sterling 
Township  against  the  Commissioners  of  Wayne 
County.  Mandamus  awarded,  and  defendants 
appeal.     Affirmed. 

Arjnied  before  BROWN,  C.  J.,  and  POTTER, 
STEWART,  FRAZER,  and  WALLING,  JJ,    , 

Charles  A.  McCarty  and  M.  E.  Simons,  both 
of  Honcsdale,  for  appellants.  E.  C.  Mumford 
and  J.  O.  Mumford,  both  of  Honesdale,  for  ap- 
I)ellee. 

STEWART,  J.  This  case  was  heard  in  the 
court  below,  and  argued  here  on  appeal,  with 
tlie  case  of  Supervisors  of  Manchester  Town- 
jjliip  V.  Wayne  County,  101  Atl.  736,  in  which 


the  opinion  has  just  been  handed  down,  affirming 
the  judgment  appealed  from.  The  facts  are  the 
same  in  both  cases,  and  the  question  raised  is 
the  same  in  each.  It  follows  that  like  disposi- 
tion is  to  be  made  of  this. 

The  assignments  are  overruled,  and  the  judg- 
ment is  affirmed. 


(267  Ptt.  396) 

SMITH  et  aL  v.  PEOPLE'S  NATURAL 

GAS  CO. 

(Supreme  Court  of   Pennsylvania.     April   16, 

1917.) 

1.  Mines  and  Minebalb  ®=378(7)— Oil.  and 
Oas  Lkase— Biix  to  Enforce  Fobfeitube. 

Where  the  lessor  of  an  oil  and  gas  lease 
executed  November  2,  1902,  received  a  quar- 
terly rental  for  10  years,  and  the  lessee,  who 
had  not  entered  upon  or  explored  the  premises 
as  required  by  the  lease,  tendered  the  rent  due 
on  September  5,  1912,  which  was  returned  be- 
cause not  tendered  in  time,  with  a  statement 
that  the  lessor  did  not  care  to  continue  the 
lease,  and  the  lessee  tendered  the  rental  for  each 
quarter  until  the  rental  of  June  4,  1913,  which 
was  not  tendered  when  due  and  was  refused,  the 
lessor's  biU  in  equity  to  forfeit  the  lease  for 
nonpayment  of  rent  was  properly  dismissed, 
as  the  lessor's  conduct  admitted  that  the  lease 
was  in  existence  and  had  not  been  rescinded. 

2.  Landlobd  and  TenaKt  <s=3lll— Nonfat- 
MENT   OF  Rent— FoBTEnsDBB}— Equity. 

There  is  a  distinction  between  a  proceeding 
to  enforce  a  forfeiture  and  one  asking  for  re- 
lief from  a  forfeiture,  and  while  courts  of  equity 
will  not  generally  relieve  against  a  forfeiture, 
except  in  the  case  of  nonpayment  of  rent,  where 
full  compensation  can  be  made  by  decreeing  the 
arrears  to  the  lessor,  they  will  not  lend  their 
assistance  to  the  enforcement  of  a  forfeiture, 
but  will  leave  parties  to  their  legal  remedies. 

3.  Landlobd  and  Tenant   €=>111— Lease- 
Conditions  OF  FOBFEITOBB. 

The  usual  rule  is  that  a  lease  must  state 
the  conditions  upon  which  a  forfeiture  can  bfl 
declared,  or  no  forfeiture  can  bo  declared. 

Appeal  from  Court  of  Commoa  Pleas,  (Tlar- 
lon  Ck>unty. 

Bill  in  equity  by  D.  B.  Smith  and  others 
against  the  People's  Natural  Gas  Company 
to  enforce  the  forfeiture  of  an  oil  and  gaa 
lease.  From  a  decree  dismissing  the  bill, 
plaintiffs  appeaL  Decree  affirmed,  and  bill 
dismissed. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAL- 
LING. JJ. 

John  S.  Shirley,  Don  C  Corbett  and  B.  E. 
Rugb,  all  of  Clarion,  for  t^pellants.  F.  J. 
Maffett  and  H.  M.  Rimer,  both  of  Oarlon, 
and  Christy  Payne,  of  Pittsburgh,  for  ai>- 
peUee. 

STEWART,  J.  The  discussion  of  this  <ase 
has  taken  a  much  wider  range  than  was  nec- 
essary under  the  pleadings.  The  several 
questions  touching  the  legal  effect  to  be  given 
the  contract  out  of  which  the  contention 
arises,  and  the  reciprocal  rights  and  obliga- 
tions of  the  parties  thereunder,  all  of  which 
were  so  elaborately  discussed,  are  not  In  any 
way  Involved  In  the  issue  presented.  The 
one  question  In  the  case  Is  whether,  under 


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101  ATIiAimO  REPORTER 


(Pa. 


the  terms  of  the  particular  contract  we  hare 
to  consider,  and  below  In  part  recited,  wheth- 
er It  be  a  grant,  or  a  lease,  or  an  option,  the 
grantor  or  lessor  la  entitled  to  the  interven- 
tion of  the  court  to  have  the  estate  granted 
declared  forfeited  because  of  nonpayment  at 
the  appointed  time  of  a  stipulated  quarterly 
installment.    The  facts  are  briefly  these: 

On  the  2d  of  Noyember,  1902,  the  appel- 
lant, with  his  wife,  who  was  the  owner  of 
the  land,  executed  and  delivered  to  William 
Falrman,  and  his  assigns,  an  Instrument  un- 
der seal,  wherein  it  is  recited  that,  in  consid- 
eration of  $1  paid,  they  have  granted,  with 
covenants  of  general  warranty,  to  the  said 
Fairman  and  his  assigns,  all  the  oil  and  gas 
In  and  under  a  certain  tract  of  land  situate 
In  Limestone  township.  Clarion  county,  con- 
taining 65  acres.  This  la  followed  by  a  state- 
ment of  the  terms  on  which  the  grant  is 
made  in  separate  paragraphs.  The  first  re- 
cites that  party  of  the  second  part  agrees  to 
drill  a  well  on  said  premises  within  four 
months  from  the  date  of  the  instrument,  or 
thereafter  pay  to  the  party  of  the  first  part 
^06  quarterly  In  advance  until  said  well 
shall  be  drilled,  or  the  property  or  estate 
granted  is  reconveyed  or  surrendered  to  the 
party  of  the  first  part;  second,  that  if  oU  be 
found  in  paying  quantities  the  party  of  the 
second  part  shall  deliver  to  the  party  of  the 
first  part  one-sixth  of  the  oil  so  produced; 
third,  that  in  case  gas  be  found  in  paying 
quantities  the  consideration  shall  be  at  the 
annual  rate  of  $200  payable  quarterly  in  ad- 
vance, etc. ;  the  seventh  redtee  that  the  par- 
ty of  the  second  part  "may  at  any  time  re- 
move all  its  property,  fixtures,  etc.,  and  may 
surrender  this  lease  and  reconvey  to  the 
party  of  the  first  part,  its  heirs  and  assigns, 
the  premises  and  estate  hereby  granted,  and 
thereafter  be  relieved  from  further  liability 
under  this  grant  and  Instrument"  The  other 
terms  and  provisions  are  without  signifi- 
cance and  need  not  be  redted.  On  the  9th  of 
December  following,  Fairman  assigned  to  the 
People's  Natural  Gas  Company,  the  appellee, 
all  his  right  and  Interest  in  and  under  the 
contract  Up  to  the  time  of  filing  the  pres- 
ent bill  no  occupancy  of  the  premises  had 
been  taken  by  the  appellee,  and  during  this 
period  no  attempt  had  been  made  to  drill  a 
well  thereon,  but  the  appellee  had  continued 
regularly  to  pay  the  stipulated  quarterly 
rental,  as  rental,  of  $8.06  in  advance,  until 
September  6,  1912,  a  period  of  ten  years. 
On  August  27,  1012,  appellee  sent  check  to 
appellant  for  quarterly  rental  due  on  the  fol- 
lowing September  6th.  This  check  appellant 
returned  to  appellee.  Inclosed  in  a  letter  from 
the  former's  attorney  in  which  this  appears: 

"Mr.  Smith  [appellant]  does  not  care  to  con- 
tinue the  lease,  and  therefore  returns  the  rental 
you  sent  him  in  August.  Ho  now  wants  the 
lease  returned  to  him,  and  the  purpose  of  this 
letter  is  that  yon  return  it  to  him  promptly 
at  your  earUest  convenience." 


The  rental  for  each  quarter  thereafter  was 
traidered  until  June  4, 1913.  The  rental  then 
due  was  not  tendered  until  June  16th,  when 
it  too,  was  declined.  On  the  following  De- 
cember 9th,  appellant  caused  the  following 
notice  to  be  served  on  appellee: 

"This  is  to  notify  you  that  I  hereby  declare 
forfeited  the  lease  given  by  me  and  my  wife 
Ella  Smith  to  M.  H.  Fairman  and  assigned  to 
your  company,  on  66  acres,  more  or  less,  in 
Limestone  township,  Clarion  county,  Pennsyl- 
vania, and  that  tho  said  lease  has  been  void  and 
of  no  effect  since  June  4,  191S,  for  the  reason 
that  you  failed  at  that  time  to  pay  the  rentals 
dup  under  the  terms  of  the  lease  as  therein  pro- 
vided." 

This  was  more  than  two  years  after  the 
appellant  had  refused  the  tender  of  rental 
due  September  5,  1912,  and  had  demanded  a 
return  of  the  lease. 

[1]  Appellant  filed  his  bill  in  May,  1916,  in 
which,  after  setting  forth  the  above  facts, 
he  asked  that  the  lease  be  declared  forfeited, 
void,  and  of  no  eftect  and  that  appellee  be 
directed  to  deliver  up  the  same.  While  the 
failure  of  appellee  to  drill  a  well  on  the 
premises  within  four  months  from  the  mak- 
ing of  the  contract  is  a  matter  complained  of 
la  the  bifi,  it  is  not  made  a  basis  for  the 
relief  asked,  as  Indeed  it  oould  not  be.  In 
view  of  the  fact  that  for  the  ten  years  fol- 
lowing the  agreement  the  appellee  bad  ac- 
quiesced, and  received  the  quarterly  pay- 
ments. The  acceptance  of  these  quarterly 
payments,  which  both  parties  treated  as  rent- 
al, Is  wholly  Inconsistent  vrith,  and  fully  neg- 
atives, any  claim  that  the  contract  had  ei- 
ther expired  or  been  rescinded.  Up  to  the 
time  when  it  is  claimed  that  default  was 
made  in  the  quarterly  payments  the  relation 
of  landlord  and  tenant  unquestionably  ex- 
isted, and  the  acceptance  of  the  rent  during 
that  period  concludes  the  appellant  from  as- 
serting anything  to  the  contrary.  Therefore 
the  bill  of  complaint  suggests  no  other 
ground  for  the  relief  asked  for  than  the  de- 
fault in  the  quarterly  payment  of  $8.06,  and 
it  follows,  from  this,  that,  as  we  have  al- 
ready saltl,  it  is  wholly  imnecessary  to  con- 
sider the  several  questions  discussed  by 
counsel  on  one  side  and  the  other  as  to  the 
nature  and  character  of  the  original  contract 
between  the  parties.  For  present  purpose 
we  give  the  contract  the  construction  the 
parties  themselves  put  on  it  The  refusal  by 
appellant  to  accept  the  tender  of  September 
6,  1912,  is  put  distinctly  on  the  ground  that 
the  tender  was  not  made  in  time.  This  is  it- 
self a  clear  admission  that  up  to  that  time 
the  contract  was  a  subsisting  one,  and  bad 
neither  been  rescinded  nor  revoked.  The 
learned  court  refused  the  prayer  of  the  i>eti- 
tloner  and  dismissed  the  bill.  The  appeal 
brings  before  us  the  single  question  we  have 
above  Indicated. 

[2]  It  is  to  be  remembered  that  It  was  af- 
firmative relief  that  was  here  sought  the 
enforcement  of  a  forfeiture.  Our  cases  rec- 
ognize a  clear  distinction  between  a  proceed- 


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lug  tor  the  entorcement  of  a  torfeltuie  and 
one  asking  for  relief  from  forfeiture.  Says 
Sharswood,  J.,  In  Oil  Creek  R.  R.  Co,  v. 
Atlantic  &  Great  Western  R.  R.  Co.,  67  Pa. 
65,  72: 

"He  [the  chancellor]  exercisw,  upon  the  ques- 
tion presented,  a  sound  discretion,  under  all  the 
drcnmstances  of  the  case,  for  the  moet  part 
untrammeled  by  rule  or  precedent.  If  the  bar- 
gain is  8  hard  or  unconscionable  one,  if  the 
terms  are  unequal,  if  the  party  calling  for  his 
aid  is  seeking  an  undue  advantage,  he  declines 
to  interfere.  Therefore  it  is  that,  althongh  a 
court  of  equity  will  not  in  general  relieve 
against  a  forfeiture,  unless  it  be  in  the  case  of 
nonpayment  of  rent,  where  an  exact  and  just 
compeneation  can  be  made  by  decreeing  to  the 
landlord  the  arrears  of  bis  rent,  with  interest 
and  costs,  yet  they  never  lend  their  assistance 
In  the  enforcement  of  one,  but  leave  the  party 
to  his  legal  remedies." 

The  contract  In  t^e  case  Joat  dted  In  ex- 
press terms  provides  for  a  forfeiture  In  case 
of  failure  to  perform  any  of  Its  stipulations. 
In  the  present  case,  as  In  the  case  of  Mar- 
shall y.  Forest  OU  Co.,  198  Pa.  83,  90,  47 
Atl.  927,  where  the  attempt  was  to  forfeit  a 
lease  for  nonpayment  of  rental,  the  contract 
contains  no  stipulation  for  forfeiture.  It  Is 
there  said,  by  the  present  Chief  Justice: 

"There  is  nothing  in  the  lease  providing  that 
it  should  be  forfeited  by  the  nonpayment  of  the 
rental.  The  only  forfeiture  contemplated  is  that 
resulting  from  an  abandonment  of  the  lease  and 
the  removal  of  the  lessee's  property  from  the 
premises;  and  the  lessor  could  not  have  rescind- 
ed the  lease  because  the  lessee  failed  to  pay  the 
monthly  rental.  He  had  a  right  to  enforce  pay- 
ment of  the  same  by  suit  against  the  lessee  for 
each  monthly  default,  and,  upon  such  default, 
in  a  short  time  any  right  of  the  latter  in  the 
leased  premises  would  have  been  divested  in 
proper  proceedings  by  the  former." 

[S]  The  usual  rule  Is  that  a  lease  mnst 
state  the  condition  upon  which  a  forfeiture 
can  be  declared,  or  no  forfeiture  can  be  de- 
clared. Vandevoort  r.  Dewey,  42  Hun  (N. 
T.)  68.  Other  authorities  ml(^t  readily  be 
dted  of  like  totor,  but  these  given  nwke  it 
unnecessary  to  pursue  the  matter  farther. 
All  we  decide  in  the  case  Is  that  appellant 
was  not  entitled  to  enforce  forfeiture  on  the 
ground  set  up  in  this  bill. 

It  follows  that  no  error  was  committed, 
and  the  decree  is  therefore  affirmed,  and  the 
appeal  is  dismissed. 


(2S7  Pa.  mm 

PERKINS  ▼.  HALPRBN  et  aL 

(Sapreme  Court  of  Pennsylvania.    April  16, 
1917.) 

1-  Appeal  and  Ebboe  ®=»100S(2)— Fiumngs 
OF  Fact— Effect. 

The  findings  of  the  court  below,  trying  the 
ease  without  a  jury,  have  the  effect  of  a  ver- 
dict, and  will  not  be  set  aside,  if  there  is  evi- 
dence to  support  them. 
2.  Saues  «=9l99 — Delivibt— Sale  on  CBEorr. 

Actual  delivery  and  payment  are  not  neces- 
sary to  transfer  the  title  to  goods  sold,  as  goods 
may  be  sold  on  credit  and  without  delivery,  if 
the  parties  so  intend. 


3.  Sales   €=»218%  —  Action  fob   Pbice  — 
Tbaitsfeb  of  Titlk— Sufficienct  of  Evi- 
dence. 
In  assumpsit  for  ^oods  sold  and  delivered, 
evidence  held  to  sustain  a  finding  tuat  the  title 
passed  to  defendants  when  the  goods  were  bill- 
ed to  them  and  they  were  permitted  to  with- 
draw the  goods  from  a  warehouse  on  payment  of 
the  duty. 

Appeal  from  Court  of  Oommon  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  goods  sold  and  delivered  by 
James  A.  Perkins,  to  the  use  of  the  Bank  of 
Commerce,  against  Jacob  Halpren  and  Harry 
Mittleman,  trading  as  Halpren  &  Mittleman. 
Judgment  for  plaintiff  for  $2,232.27,  on  the 
findings  of  the  court  sitting  without  a  jury, 
and  defendants  appeal.    Afllnned. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

J.  B.  Colahan,  3d,  and  Frank  P.  Prichard, 
both  of  Philadelphia,  for  appellants.  M. 
Hampton  Todd  and  Levi  &  Mandel,  all  of 
Philadelphia,  for  appellee. 

FRAZER,  J.  This  action,  by  the  assignee 
of  a  book  account,  is  for  goods  alleged  to 
have  been  sold  and  delivered  by  the  l^al 
plaintiff  to  defendants,  who  refused  payment, 
averring  the  title  had  not  passed,  nor  bad 
there  been  actual  delivery  made  to  them,  but. 
on  the  contrary,  the  goods  were  sold  and  de- 
livered to  a  third  person.  There  were  two 
actions  depending  upon  the  same  facts,  by 
agreement  tried  together  without  a  Jury. 
The  trial  judge  concluded  the  testimony  am- 
ple to  establish  a  sale,  and  entered  Judgment 
for  plaintiff. 

Plaintiff,  an  importer  of  dress  goods,  en- 
tered into  an  arrangement  with  defendants, 
who  were  jobbers  in  the  same  line  of  mer- 
chandise, by  which  the  latter  agreed  for  a 
commission  to  guarantee  the  account  of  plain- 
tiff at  the  PhlladelphU  National  Bank,  which 
institution  undertook  to  accept  drafts  drawn 
on  E2ngland  and  accompanying  shipments  of 
goods  ordered  by  plaintiff.  Conformable  to 
this  arrangement,  a  letter  of  credit,  signed 
by  the  bank  and  defendants,  was  forwarded 
to  a  foreign  merchant,  who  thereupon  ship- 
ped the  goods,  attaching  to  the  bill  of  lading 
a  draft  drawn  on  the  Philadelphia  National 
Bank,  and,  on  arrival  of  the  shipment,  the 
bank  aco^ted  and  stored  the  goods  in  a 
United  States  bonded  warehou&e,  in  the 
name  of  brokers,  for  account  of  plaintiff.  A 
written  acknowledgment,  termed  a  "trust  re- 
ceipt,'* was  executed  by  plaintiff  to  the  bank, 
in  which  the  former  agreed  to  hold  the  mer- 
chandise in  trust  as  the  property  of  the  bank, 
with  liberty,  however,  to  sell  the  same  for 
its  account,  collect  the  proceeds,  and  deliver 
the  amount  received  to  the  bank,  to  be  ap- 
plied against  its  acceptance  of  the  draft  in 
favor  of  the  foreign  merchant.    Plaintiff  sub- 


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sefjnently  forwarded  to  defendants  Invoices 
describing  the  character  of  the  merchandise, 
and  btating  the  price,  terms,  and  date  of  pay- 
ment; the  price  Incladlng  the  duties  and 
carrying  charges.  Instead  of  delivering  the 
accounts  to  the  Philadelphia  National  Bank, 
in  accordance  with  Ills  agreement  under  the 
trust  receipt,  plaintiff  assigned  same  to  the 
Bank  of  Commerce,  the  use  plaintiff,  by  In- 
dorsing on  the  invoices  the  following  mem- 
orandum: 

"For  value  received,  the  above  claim  is  sold, 
assigned,  and  transferred  to  Bank  of  Commerce, 
•    •    •    to  whom  it  is  payable  when  due." 

No  claim  Is  made  that  the  Bank  of  Com- 
merce was  not  a  bona  fide  purchaser.  The 
money  received  by  Perkins  from  the  use  plain- 
tiff was  applied  toward  the  payment  of  du- 
ties, minor  Incidentals,  drafts,  and  the  bal- 
ance turned  over  to  the  Philadelphia  Nation- 
al Bank.  Plaintiff's  account  at  the  Philadel- 
phia National  Bank  became  In  arrears, 
whereupon  the  latter  directed  the  warehouse- 
man to  hold  all  goods  deposited  there  on  ac- 
count of  plaintiff,  subject  to  its  written  in- 
structions. Later  the  goods  so  held,  including 
those  billed  to  defendants  and  assigned  to  the 
Bank  of  Commerce,  were  sold  by  the  Phil- 
adelphia National  Bank,  and  the  proceeds  of 
the  sale  applied  to  the  credit  of  the  plaintiff. 
Defendants'  refusing  to  pay  for  the  goods, 
these  actions  were  brought. 

There  is  evidence  to  the  effect  that  the 
method  of  procuring  credit  adopted  In  this 
case  Is  the  usual  and  customary  one  In  the 
Importing  boslness.  Plaintiff  testified  that, 
before  the  letter  of  credit  was  procured,  he 
usually  obtained  from  the  defendants  an  or- 
der for  certain  goods,  and  secured  a  letter  of 
credit  covering  their  value,  and  that,  in  this 
particular  instance,  he  received  a  verbal  or- 
der from  defendants  to  the  extent  of  £3,000 
of  merchandise,  whereupon  the  letter  of  cred- 
it for  that  amount  was  procured,  being  prac- 
tically confirmatory  of  the  verbal  order  for 
goods.  The  order,  as  given.  Included  the 
price  and  quantity,  as  appears  from  the  fol- 
lowing extract  from  the  testimony: 

"By  the  Court:  Q.  It  was  a  verbal  order  for 
a  definite  kind  of  merchandise,  to  wit,  poplins 
and  artificial  silk,  and  was  of  a'  quantity  suffi- 
cient in  yards  to  equal  £3,000  approximately? 
A.  Yes,  sir." 

Plaintiff  also  testified: 

"All  my  goods  were  sold  on  the  basis  of  that 
letter  of  credit  That  practically  made  the 
sale." 

This  evidence  was  ample  to  warrant  the 
finding  of  an  existing  order,  or  agreement,  to 
purchase  the  goods.  The  further  question 
remains  as  to  whether  there  was  such  actual 
or  constructive  delivery  sufficient  to  pass  ti- 
tle to  the  purchaser. 

The  merchandise,  upon  reaching  port,  was 
immediately  delivered  to  Mui-phy  &  Co.,  and 
deposited  by  them  in  the  warehouse  for  the 
account  of  plaintiff,  who  gave  a  trust  reeeipt, 
by  which  he  was  authorized  to  make  sales  of 


the  goods  and  account  to  the  bank  for  the  pro- 
ceeds. Plaintiff  immediately  billed  the  goods 
to  defendants  under  date  of  June  21st  and 
August  9th,  at  stated  terms,  by  which  pay- 
ment was  not  required  until  Novemb^  1st 
and  December  1st,  following.  The  status  ot 
the  goods  subsequent  to  June  2l8t  is  Indicated 
by  the  following  testimony: 

"Q.  What  control  did  Halpren  ft  Mittlemin 
have  over  that  merchandise  in  the  hands  of  Al- 
exander Murphy?  A.  Practically  absolntel; 
full  control.  Q.  Gould  they  go  there  and  get 
them?  A.  Indirectly.  Q.  What  do  yon  mean 
by  indirectly?  A.  When  they  wanted  to  \fith- 
draw  those  cases  they  wonld  give  the  money  for 
the  duty,  a  check  made  payable  to  Alexander 
Murphy  ft  Co.  for  the  withdrawal  of  those  cases. 
They  were  put  in  bond,  subject  to  the  payment 
of  the  duty.  •  •  •  Q.  Who  paid  the  duty 
on  the  goods?  A.  Halpren  ft  Mittleman.  Q. 
How  often  did  they  pay  duty  on  goods?  A. 
Whenever  they  wanted  the  case.  Q.  To  wbom 
did  they  pay  the  duty?    A.  Alexander  Murpbr 

The  goods  were  billed  to  Indnde  duty  and 
hauling,  and,  upon  defendant  desiring  to  with- 
draw a  portion  of  the  shipment,  they  gave 
to  plaintiff  a  sum  stifflcient  to  cover  the  duty, 
which  amount  would  be  credited  on  the  bill, 
and  plaintiff  at  his  expense  thereupon  re- 
moved the  goods  from  the  warehouse  to 
defendants'  place  of  business.  Part  of  tlit 
merchandise  included  In  the  shipment  was  de- 
livered in  this  manner  and  paid  for  by  de- 
fendants. 

The  articles  for  which  suit  was  brought 
were  permitted  to  remain  in  the  warehouse 
until  September,  at  which  time  defendanta 
drew  a  check  in  payment  of  the  duty;  in 
the  meantime,  however,  the  bank  notified 
Murphy  &  Co.  not  to  surrender  the  goods, 
excei»t  upon  its  written  order.  Defendants 
were  aware  at  all  times  that  the  accounts 
had  been  assigned  to  the  Bank  of  Commerce, 
notwithstanding  the  trust  agreement,  since 
notice  of  that  fact  was  Indorsed  on  the  face 
of  the  invoices  sent  them,  and  no  objection 
was  made  by  them  to  the  assignment  on  ac- 
count of  their  guaranty  of  plaintiff's  account 
at  the  Philadelphia  National  Bank. 

[1]  The  court  below  found  from  the  fore- 
going facts  that  the  parties  intended  and 
did  definitely  complete  the  sale  at  the  time 
the  goods  were  billed  to  defendants,  and  the 
accounts  assigned  to  the  Bank  of  Commerce. 
This  finding  has  the  force  and  effect  of  the 
verdict  of  a  Jury,  and  will  not  be  set  aside 
if  there  Is  evidence  to  support  it.  Brown, 
Early  &  Co.  v.  Susquehanna  Boom  Co.,  109 
Pa.  57,  1  Atl.  156,  58  Am.  Rep.  708;  Com. 
v.  Westinghouse  Electric  &  Mfg.  Co..  151  Pa. 
265,  24  Atl.  1107,  1111.  Wliether  or  not  tlUe 
passed  to  defendants  in  this  specific  instance 
depends  upon  the  intention  of  the  parties  as 
indicated  by  the  course  of  dealing  with  each 
other. 

[2]  Actual  delivery  and  payment  Is  not 
necessary,  as  merchandise  may  be  s(dd  on 
cre<llt  and  without  delivery,  if  the  parties  so 
intend.  The  rule  on  the  subject  was  fully 
stated  In  Com.  v.  Heaa.  148  Pa.  08,  23  AtL 


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ITEXKISa  V.  BAI<FBXar 


743 


977,  17  li.  B.  A.  176,  3S  Am.  St  Rep.  810, 
wbtch  was  a  proeecutioii  for  selling  Uqaor 
without  a  license;  the  question  turning  on 
the  time  of  sale.  In  that  case,  defendant,  a 
wholesale  liquor  dealer  in  the  dty  of  Phila- 
delphia, received  orders  at  his  place  of  busi- 
ness from  outside  the  county;  upon  receipt  of 
sudi  orders  the  liquors  were  set  apart  and 
charged  to  the  purchaser  on  defendant's 
books,  the  sale  being  made  on  credit.  The 
articles  purchased  were  subsequently  deliver- 
ed to  the  purchaser  by  defendant,  either  by 
wagon  or  railroad.  The  dealer  was  charged 
with  selling  liquor  without  a  license  In  the 
comity  In  which  the  purchasers  resided,  and 
we  there  held  the  sale  was  made  at  defend- 
ant's place  of  business,  and  not  in  the  county 
of  the  purchaser.  In  discussing  the  legal 
principles,  applicable  to  such  sales,  this  court 
said  (148  Pa.  106,  23  AtL  878, 17  U  B.  A  17S, 
33  Am.  St  Bep.  810): 

"As  before  stated,  when  the  defendant  received 
the  orders  from  his  customer,  the  goods  were 
set  apart  for  the  latter,  and  charged  to  him. 
Had  the  order  been  accompanied  by  the  cash, 
and  the  goods  thus  set  apart,  no  one  would  con- 
tend that  the  sale  was  not  complete  as  between 
the  parties.  Can  it  make  any  possible  difference 
that  the  liquors  were  charged  to  the  purchasers 
upon  the  books  of  the  defendant?  The  giving  of 
a  credit  was  as  effective  in  passing  the  title  as 
the  payment  of  the  money  when  the  order  was 
given.  The  acceptance  of  the  order,  in  either 
case,  is  effective  to  pass  the  title  as  between 
vendor  and  vendee.  In  such  case,  the  vendee  has 
the  right  of  property  witli  the  right  of  posses- 
sion. Under  all  the  authorities,  the  vendor  acts 
as  bailee,  and  not  owner,  in  carrying  or  deliv- 
ering the  goods.  This  is  the  rule,  where  the 
rights  of  creditors,  or  bona  fide  purchasers  with- 
out notice,  do  not  intervene.  There  is  abundant 
authority  for  this  principle.  The  general  mie 
is  that  It  is  the  contract  to  sell  a  chattel,  and 
not  paym«it  or  delivery,  which  passes  the  prop- 
erty. Benjamin  on  Sales,  357.  The  rule  that 
the  contract  of  sale  passes  the  property  imme- 
diately, before  payment  or  change  of  possession, 
has  lieen  nniversaUy  recognized  in  the  United 
States.  Id.  329.  There  may  be  a  bar^in  and 
sale  of  goods  sufficient  to  transfer  the  title,  and 
thus  to  support  an  action  for  goods  bargained 
and  sold,  without  such  transfer  of  delivery  as 
will  amount  to  a  transfer  of  possession.  Fra- 
Eier  T.  Simmons  et  al.,  139  Mass.  531  [2  M.  E. 
112].  'When  the  terms  of  sale  are  agreed  upon, 
and  the  bargain  is  struck,  and  everything  the 
seller  has  to  do  with  the  goods  is  complete,  tiie 
contract  of  sale,'  says  Chancellor  Kent,  'be- 
comes absolute  as  between  the  parties,  without 
actual  payment  or  delivery,  and  the  property, 
and  the  risk  of  accident  to  the  goods,  vests  in 
the  buyer.' " 

In  Cope's  Estate,  191  Pa.  689,  43  Art.  473, 
it  was  held  that  where  a  customer  selected 
engravings  from  time  to  time,  as  invoices  of 
such  articles  were  received  and  the  selec- 
tions so  made  were  set  apart  by  the  vendor 
on  his  premises,  and  charged  to  the  cus- 
tomer's account,  and  subject  to  his  call  at 
any  time  delivery  was  desired,  the  title  to 
tho  articles  passed  at  the  time  of  their  be- 
ing set  aside,  even  though  bills  were  not  ren- 
dered In  the  course  of  dealing  until  the 
prints  were  actually  removed  by  the  cus- 
tomer. We  there  sadd  (181  Pa.  593,  43  Att. 
474): 


"The  conduct  of  appeHants  [vendors]  was  uni- 
form in  treating  the  transaction  as  a  sale.  In 
every  case,  the  selected  engravings  were  mark- 
ed with  their  respective  prices,  separated  from 
the  common  stock,  and  made  accessible  to  the 
decedent  and  Mr.  Barr  [the  vendor's  salesman] 
alone,  then  charged  to  him  [the  decedent],  and 
never  thereafter  carried  into  the  general  stock. 
The  learned  auditing  judge  nttaebed  too  much 
importance  to  the  fact  that  the  bills  were  not 
rendered  until  the  goods  were  taken  away. 
There  is  nothing  in  that  circumstance  thst  is 
inconsistent  with  an  absolnte  sale,  especially 
when  we  consider  the  uniform  course  of  dealing, 
which  the  decided  weight  of  the  evidence  shows 
the  parties  themselves  adopted." 

A  case  somewhat  similar  on  Its  tacts  Is 
Montlcello  Distilling  Co.  v.  Dannenhauer,  46 
Pa.  Super.  Ct  485,  where  there  was  an  agree- 
ment to  purchase  whisky  "In  bond"  from  a 
dlstilMng  company,  followed  by  a  transfer 
of  warehouse  receipts  for  the  goods,  and  It 
was  held  the  acceptance  bj  the  vendor  of 
notes  of  the  purchaser  for  the  price  con- 
stituted a  complete  sale,  even  though  the 
goods  were  subject  to  a  payment  of  a  federal 
tax  and  were  never  actually  delivered  to  the 
vendee. 

[3]  Many  other  cases  snstalnlng  the  same 
principle  might  be  cited.  The  above,  bow- 
ever,  are  sufficient  to  Illustrate  the  rule  and 
sustain  the  conclusion  reached  by  the  trial 
judge  on  the  facts  In  the  present  case.  The 
course  of  dealing  between  the  parties,  the 
method  of  purchase,  and  subsequent  disposi- 
tion of  the'  merchandise  on  Its  arrival  in  a 
bonded  warehouse,  wherein  It  was  set  apart 
subject  to  withdrawal  at  the  pleasure  of  de- 
fendants, and  the  actual  withdrawal  of  i>art< 
together  with  the  delivery  of  the  invoices, 
all  tend  to  support  the  conclusion  of  the  trial 
judge,  and  furnish  ample  foundation  to  sus- 
tain his  decision. 

The  fact  that  plaintifT  failed  to  transfer 
the  proceeds  of  sale  to  the  Philadelphia  Na- 
tional Bank,  conformably  to  his  obligation  un- 
der the  trust  receipt  to  deliver  to  the  latter, 
has  no  bearing  on  the  present  discussion. 
The  trust  receipt  authorised  plaintiff  to  sell 
the  merchandise ;  consequently  an  exercise  of 
the  power  of  sale,  so  far  as  the  purchaser  Is 
concerned,  divests  the  title  of  the  bank. 
Canadian  Bank  of  Commerce  v.  Baum  & 
Sons,  187  Pa.  48,  40  AtL  975.  WhUe  the 
knowledge  of  defendants  of  the  misuse  of 
the  funds  by  plaintiff.  In  violation  of  the 
trust  agreement,  might  have  prevented  them 
from  claiming  to  be  bona  fide  purchasers  for 
value.  In  a  proceeding  by  the  Philadelphia 
National  Bank  to  regain  possession  of  the 
goods  (Canadian  Bank  of  Commerce  v.  Baum 
&  Sons,  supra),  that  bonk  is  not  here  mak- 
ing claim  to  any  portion  of  the  property,  and 
has  apparently  received  satisfaction  of  its 
account. 

A  motion  to  quash  the  appeal  was  made  by 
plaintiffs.  In  view  of  the  disposition  of  the 
case  on  its  merits,  consideration  of  that  mo- 
tion becomes  unnecessary. 

The  judgment  of  the  couit  below  is  at- 
firmed. 


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101  ATTANTIO  REPORTRB 


(Pa. 


SOTTEXB  et  aL  r.  COATESVILLB  BOILEK 
WORKS  et  aL 

(Supreme   Court   of  Pennsylvania.     April   16^ 
1917.) 

1.  CORPOBATIORB  iS=308(l)— DlBEOTOBS— CoM- 
FKNBiLTION. 

The  directors  of  a  corporation  may  serve 
the  company  in  the  capacity  of  ofBcers  or  em- 
ployes, and  receive  compensation  for  such  serv- 
ices, if  legally  employed  by  the  company. 

2.  GOBPOBATIONS  «=>317(l)—DlKKCTOB8— CON- 
TRACT WITH  OoBPOBATioN— Compensation. 

Directors  may  contract  with  agents  or  em- 
ployes of  their  corporation,  who  arc  likewise 
directors;  and  such  contracts,  though  subject 
to  close  scrutiny,  are  not  ipso  facto  void,  but, 
when  fair  and  reasonable,  will  be  sustained. 

8.    OOBPORATIONS  «=S>426(7)— DlBEOTOBS— COH- 

TBACT  FOB  CoMPENBATioN— Ratification. 
A  contract  by  the  directors  of  a  corpora- 
tion with  its  agents  or  employes,  looking  to  ad- 
ditional compensation  to  the  directors,  may  be 
ratified  and  validated  by  acquiescence  of  the 
•tockholdera 

4.    GOBFOBATIONa    lS=>320(6)— DiBECTOBS— Sal- 

ABIKS— Ratification— Equity. 
A  vote  of  a  board  of  directors  of  excessive 
salaries  to  certain  of  its  members,  who  are  also 
officers  or  employte  of  the  corporation,  even 
though  subeequently  ratified  at  a  stockholders' 
meeting,  is  reviewable  by  a  court  of  equity  at 
the  instance  of  minority  stockholders,  and  the 
court,  if  finding  that  salaries  are  exorbitant, 
may  determine  tno  value  of  the  services  rendered 
and  restrain  the  corporation  from  paying  any 
excess;  but  the  court  has  no  power  to  restrain 
the  payment  of  such  salaries  in  future  years, 
when  the  drcumstances  may  chan^,  though  ex- 
ceptional cases  may  arise  where,  m  contempla- 
tion of  a  continuance  of  an  ascertained  state  of 
focts,  the  court  may  determine  their  future 
compensation. 
6.  Cobfobations  «9320(13)  —  Dibectobs  — 

Vote  fob  Bxtba  Compensation— Vauditt 

—Injunction. 
A  corporation  voted  salaries  to  three  of  its 
directors,  who  were  also  its  executive  officers, 
and  who  performed  special  services  for  the  com- 
pany, resulting  in  its  financial  success,  and 
thereafter  the  directors,  in  addition  to  their  sal- 
aries, voted  them  50  per  cent  annually  of  the 
net  gain  on  the  stock  of  the  company  after  its 
regnlar  dividend  was  set  aside,  which  vote  was 
participated  in  by  interested  directors  and  was 
ratified  at  a  stockholders'  meeting.  Held,  on 
a  bill  by  dissenting  stockholders  to  restrain  the 
corporation  from  paying  such  additional  com- 
pensation to  its  directors,  that  the  payment  to 
them  for  that  year  should  be  limited  to  the 
amount  found  ^  the  court  to  be  reasonable,  and 
that  the  court  could  not  enjoin  payment  of  ex- 
tra compensation  to  employes  not  parties,  or 
enjoin  payments  in  future  years,  when  the  cir- 
cumstances might  change,  though,  in  exception- 
al cases  and  in  contemplation  of  a  continuance 
of  an  ascertained  state  of  facts,  it  might  do  so. 
6.  Cobfobations  €=3308<3)  —  Compensation 

OF  Officebs— Contbact — Resolution. 
Whero  a  corporation  by  resolution  fixed  ex- 
tra compensation  for  its  officers,  no  formal  con- 
tract between  it  and  its  oflicers  was  required  to 
fix  the  corporation's  liability;  bat  such  a  reso- 
lution, when  acted  on,  was  in  itself  sufficient 
evidence  of  the  contract 

Appeal  from  Court  of  Common  Pleas,  Ches- 
ter County. 

Bill  for  Injunction  by  Frederick  Setter  and 
others  against  the  Coatesvllle  Boiler  Works 
and  others.    From  a  decree  awarding  an  in- 


junction in  part,  plaintiffs  appeaL    Remit- 
ted, with  directions  to  modify  the  decree. 

The  court  entered  the  following  decree: 
"The  Coatesvllle  Boiler  Works,  one  of  the 
defendants,  and  all  of  its  agencies,  are  restrain- 
ed from  making  any  payment  under  its  direc- 
tors' resolution  of  November  7,  1901,  subsequent- 
ly ratified  by  its  stockholders,  of  any  part  of 
its  net  profit  of  $102,456.60  for  the  fiscal  year 
ending  in  1915  to  Fred  E.  Moore;  and  this  rnnd 
will  not  be  depicted,  by  virtue  of  the  recited 
resolution  and  its  ratification,  beyond  the  pay- 
ment of  one-third  of  50  per  cent  of  it  to  Charles 
Edgerton  and  one-third  of  50  per  cent  of  it  to 
Nelson  H.  Genung.  Annually  hereafter,  out  of 
the  so-called  net  profits,  the  Coatesvllle  Boiler 
Works  is  restrained  from  paying  to  Edgerton 
and  Genung  greater  sums  than,  with  their  fixed 
salaries,  will  give  to  each  $12,000.  It  is  fur- 
ther directed  that  the  Coatesville  Boiler  Works 
shall  pay  the  costs  of  this  suit" 

Plaintiffs  appealed.  Errors  assigned  were 
in  dismissing  exceptions  to  various  findings 
of  fact  and  law  and  the  decree  of  the  court 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKBB,  and 
WALUNG,  JJ. 

Horace  M.  Rnmsey  and  J.  Barton  Rettew, 
both  of  Philadelphia,  and  Rettew  &  Sproat, 
of  West  Chester,  for  appellants.  W.  Horace 
Hepburn,  of  Philadelphia,  and  A.  II.  Hold- 
ing, of  West  Chester,  for  appelleea 

MOSCHZISKER,  J.  October  15,  1913, 
Frederick  Softer  filed  a  bill  In  equity,  pray- 
ing, inter  alia,  that  the  Coatesvllle  Boiler 
Works  be  restrained  from  giving  certain  of 
its  officers,  named  as  codefendants,  any  com- 
pensation in  excess  of  their  tegular  annual 
salaries;  further,  that  these  latter  should 
be  ordered  to  account  for  all  moneys  thereto- 
fore received  by  them  over  and  above  such 
salaries.  Subsequently  two  other  stockhold- 
ers Intervened  as  plaintiffs.  After  answer 
and  replication,  the  case  came  to  trial.  The 
decree  favored  the  defendants,  and  the  plain- 
tiffs have  appealed. 

The  defendant  company  has  a  capital  of 
$100,000,  divided  Into  1,000  shares,  at  a  par 
value  of  $100.  When  the  bill  was  filed,  Mr. 
Sotter  owned  100  of  these  shares,  and  the 
other  two  plaintiffs  81  shares  between  them. 
The  Individual  defendants  then  held  stock  as 
follows:  Charles  Edgerton,  300  shares;  Nel- 
son H.  Genung,  208  shares;  and  Fred  K 
Moore  held  18  shares  in  his  own  right,  but 
none  as  executor.  In  November,  1900,  Edger- 
ton was  elected  president,  Genung  vice  pred- 
dent,  and  Bdwln  T.  Moore  secretary  and 
treasurer  of  the  corporation;  each  of  them 
being  re-elected  annually  till  tlie  death  of  the 
latter.  In  September,  1913,  when  he  was  suc- 
ceeded by  Fred  E.  Moore.  December  10, 
1901,  the  board  of  directors  fixed  the  salaries 
of  the  three  "executive  officers"  at  $400  per 
month  each,  and  they  received  that  com- 
pensation until  January  1,  1905;  but  In  1904 
all  of  them,  being  dissatisfied,  had  threaten- 
ed to  resign. 


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SOTTEB  T.  OOATESVILLE  BOILKB  WORKS 


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In  addition  to  tbe  rontlne  duties  of  their 
refq;)ectlve  positions,  IMgerton  bad  charge  ot 
the  Philadelphia  headquarters  of  the  com- 
pany, at  the  same  time  earning  on  the  out- 
side about  $6,000  a  year  as  a  mechanical  en- 
gineer; Genung  was  in  charge  of  the  New 
York  office,  and  gave  his  entire  time  thereto; 
and  Moore  devoted  bis  attention  to  the  finan- 
ces of  the  concern,  superintending  the  manu- 
facture of  Its  product  and  the  sale  thereof 
from  tbe  GoatesvUIe  office.  Bdgerton  and 
Genung  were  expert  engineers,  and  Moore 
was  especially  valuable  in  Ills  line;  under 
their  direction,  the  company  was  making  a 
decided  success. 

After  consultation  tbe  board  of  directors 
agreed  that.  If  these  three  men  would  remain 
with  the  company  and  give  their  undivided 
attention  to  its  interests,  they  should  receive 
additional  compensation  over  and  above  their 
fixed  salaries  as  executive  officers.  To  carry 
out  this  understanding,  on  November  7, 1904, 
the  following  resolution  was  passed: 

"That,  in  addition  to  their  present  salaricB, 
the  manacers  of  the  company,  compriaing 
Charles  Edgerton,  Nelson  H.  Genung,  and  Ed- 
win T.  Moore,  participate  from  year  to  year  in 
the  net  earnings  as  shown  by  the  books  at  tho 
close  of  each  business  year.  The  proportion  so 
distributed  to  be  50  per  centum  of  the  net 
gain  after  the  regular  8  per  cent,  dividend  to 
the  stockholdem  has  been  set  aside,  and  is  to 
be  equally  divided  between  them.  The  remain- 
ing 50  per  centnm  of  profit  to  be  proportioned 
to  'wear  and  tear  of  plant  and  machinery,'  and 
to  a  surplus  or  undivided  profit  account,  as  may 
be  determined  by  the  board  of  managers." 

Thereafter  all  three  officers  gave  their 
whole  time  and  attention  to  the  duties  of 
their  respective  positions  and  the  manage- 
ment of  the  corporation,  receiving  compensa- 
tion in  accordance  with  tbe  terms  of  this 
resolution  till  the  fiscal  year  ending  Septem- 
ber, 1914,  when  there  was  no  net  gain. 

The  board  of  directors  consisted  of  seven 
members,  and  when  the  resolution  was  pass- 
ed In  November,  1904,  there  were  present  the 
three  execntlve  officers  and  two  others.  Bdg- 
erton and  Genung  are  still  directors,  and  Ed- 
win T.  Moore  was  a  member  of  the  board  un- 
til his  death.  Although  the  extra  comxjensa- 
tlon  here  In  question  was  voted  ujMn  by  these 
three  personally  Interested  directors,  yet,  on 
November  2,  1908,  at  a  meeting  of  stockhold- 
ers of  the  defendant  corporation,  the  subject 
of  this  resolution  was  brought  up,  and  a  mo- 
tion adopted  "that  we  ratify  the  action  of 
the  board  of  directors  *  •  •  whereby 
bonuses  are  being  distributed  to  certain  of 
the  employes  and  members  of  tbe  executive 
committee,  based  on  the  output  and  earnings 
of  the  company" ;  and,  at  a  similar  meeting 
In  November,  1910,  the  matter  was  again  con- 
sidered, a  resolution  being  then  passed  "dis- 
continuing the  payment  of  bonuses  to  em- 
ployes who  are  not  officers  of  the  company," 
thereby  impliedly  sanctioning  payments  to 
those  not  Included  in  this  prohibition. 

At  the  last-mentioned  meeting,  Mr.  Setter 
was  present  and  took  an  active  part;    but 


not  until  September,  1914,  did  the  latter  com- 
plain of  the  extra  compensation  received  by 
the  officers  of  the  company,  and.  In  conse- 
quence. May  17,  1915,  a  special  meeting  of 
the  stockholders  was  called,  when  a  com- 
plete report  of  the  whole  matter  in  contro- 
versy was  made,  and  this  resolution  passed: 

"Resolved,  that  the  action  of  tbe  board  of  di- 
rectors in  paying  to  Charles  Edgerton,  Nelson 
H.  Genung,  and  Edwin  T.  Moore,  as  managers 
of  this  company,  a  share  of  the  profits  of  the 
business  of  this  company  equal  to  50  per  cent, 
of  the  net  profits  of  the  business  at  the  end  ol 
each  year  from  1904  to  1914,  inclusive,  in  ac- 
cordance with  the  resolution  of  the  board  of 
directors  adopted  at  the  meeting  of  November 
7,  1904,  which  reads  as  follows:  [Here  the 
resolution  of  1904  is  quoted  in  full]— be  and  the 
same  is  hereby  ratified  and  approved,  and  that 
the  method  of  arriving  at  the  amount  of  net 

Erofits  by  the  board  at  the  end  of  each  year  is 
ereby  approved." 

All  those  present  at  this  meeting,  except-  - 
ing  the  proxy  of  Mr.  Sotter,  voted  for  the 
resolution;  694  shares  being  cast  in  the  af- 
firmative, and  100  in  the  negative.  At  this 
time  Bdgerton  and  Genung  together  owned  a 
majority  of  tbe  stock  of  the  corporation ; 
but  when  the  ratifying  resolution  was  passed 
in  1908,  even  in  conjunction  with  Edwin  T. 
Moore,  they  did  not  hold  a  controlling  inter- 
est PoUovring  the  resolution  already  re- 
ferred to,  at  the  meeting  in  May,  1915,  an- 
other was  passed  authorizing  and  directing 
the  board  to  enter  into  an  agreement  "with 
Charles  Edgerton,  Nelson  H.  Genung,  and 
such  other  employes  of  the  company  as  they 
may  deem  proper,  for  the  payment  (in  addi- 
tion to  their  present  salary)  from  year  to 
year  of  60  per  cent,  of  the  net  earnings 
•  •  •  after  the  regular  8  per  cent  divi- 
dend to  stockholders  has  been  set  aside," 
this  fund  to  be  divided,  %  to  Edgerton,  %  to 
Genung,  and  the  remaining  %  "to  such  of 
the  employes  of  the  company  as  the  board 
of  directors  may  from  time  to  time  deter- 
mine upon."  This  resolution  was  carried  by 
the  same  vote  as  tbe  other  one,  quoted  in  the 
preceding  paragraph. 

In  addition  to  the  above-redted  facts,  the 
court  below  found  there  was  no  executive 
committee  of  the  directorate  of  the  defend- 
ant company;  that  Messrs.  Bdgerton,  Gen- 
ung, and  Moore  were  "the  executive  oSioera, 
not  of  the  board,  •  •  •  but  of  the  cor- 
poration, and  as  such  were  its  working  man- 
agers"; that  they  were  "recognized  and 
treated  as  the  executives  or  managers,  not 
of  the  board  of  directors,  but  of  the  compa- 
ny" ;  that  they  performed  service  outside  of 
their  obligations  as  directors,  and  in  addition 
to  their  respective  official  duties;  that  "the 
proportion  of  net  earnings  paid  yearly  to 
Edgerton,  Genung,  and  Moore"  was  to  cover 
these  latter  services,  and,  each  year,  "tbe 
technical  net  gain  •  •  *  was  fixed  after 
the  deduction  <rf  tbelr  percenteges";  that 
all  three  of  these  men  were  of  "exceptional 
ability  in  their  line,  and,  as  a  result  of  their 
efforts,  the  company  had  paid  an  [annual] 


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8  per  cent  dividend  •  •  •  and  accumu- 
lated a  surplus  of  fSSS.OOO";  that  "the 
board  of  directors  of  said  company  had  au- 
thorized, tmder  the  resolution  or  motion  of 
November  7,  1901,  the  payment  of  60  per 
cent  of  $102,456.60,  representing  the  net 
gain  •  •  •  for  the  fiscal  year  ending  Sep- 
tember, 1915,  as  follows:  To  Cliarles  Edger- 
ton  $17,076.10,  to  Nelson  H.  Genung  $17,- 
076.10,  to  Fred  E.  Moore  $7,076.12,"  and  to 
three  other  employes,  naming  them,  $2,000, 
$8,000,  and  $5,000,  respectively;  that,  figur- 
ing the  above  awards,  the  average  annual 
payment  to  each  of  the  three  managers  of 
the  defendant  corporation.  Including  their 
salaries  as  executive  officers,  would  be  ap- 
proximately $12,000  for  the  period  from  1905 
to  1916,  inclusive,  and  that  this  was  proper 
and  reasonable  compensation;  finally,  that 
there  was  no  purpose  to  overreach,  or  actual 
fraud,  in  any  of  the  corporate  acts  here  in- 
volved. 

On,  Inter  alia,  the  findings  and  conclusions 
as  we  have  stated  them,  the  court  below  en- 
tered a  final  decree  restraining  the  defend- 
ant corporation,  and  "all  of  its  agencies," 
from  making  payments  out  of  the  fund  set 
aside  from  profits  of  the  fiscal  year  ending 
in  1915,  beyond  "one-third  of  50  per  cent,  of 
it  to  Cbarles  Edgerton,  and  one-third  of  60 
per  cent,  of  it  to  Nelson  H.  Genung,"  and 
ordering  that  "atmually  hereafter  •  •  • 
the  CoatesTille  Boiler  Works  is  restrained 
from  paying  to  Edgerton  and  Genung  great- 
er sums  than,  with  their  fixed  salaries,  will 
give  to  each  $12,000."  This  decree  Is  at- 
tacked on  many  groiuds,  most  of  which 
need  not  now  be  discussed,  for  they  are  con- 
clusively ruled  against  the  contentions  of 
the  appellants  in  Russell  v.  H.  0.  Patterson 
Ca,  232  Pa.  113,  81  Ati.  136,  36  U  R.  A.  0^. 
S.)  199. 

[1]  The  case  Just  referred  to  is  much  like 
the  one  at  bar.  There,  as  here,  certain  of- 
ficers of  a  private  business  corporation  held 
a.  considerable  majority  of  its  capital  stock, 
and  also  constituted  the  greater  number  of 
its  directors.  The  latter  body  increased  the 
condensation  of  these  officials,  as  president, 
vice  president,  secretary,  and  treasurer ;  and 
this  action  was  subsequently  ratified  at  a 
meeting  of  stockholders,  the  beneficiaries  ail 
voting  for  the  ratification  motion.  A  mi- 
nority stockholder  filed  a  bill  In  equity,  aver> 
ring,  inter  alia,  that  the  salaries  as  raised 
"were  exorbitant,  unreasonable,  and  unfair, 
and  that  the  Increase  was  illegal,  because  It 
could  not  have  been  made  without  the  votes 
of  •  •  •  the  Incumbents  of  the  offices." 
The  trial  court  sustained  the  contentions  of 
the  complainant,  and  granted  relief  accord- 
ingly; but,  on  appeal,  we  reversed,  holding 
that  "the  directors  had  a  right  to  serve 
•  •  •  in  the  capacity  of  officers  or  em- 
ploy^ and  to  receive  compensation  for  such 
services,  if  legally  employed  by  the  company" 
(Act  May  14,  1«91  [P.  L.  61] :  Act  May  20. 
1891  (P.  I*  lOlD,  and,  since  the  chancellor 


had  found  that  the  Increase  of  salaries  was 
"not  more  than  reasonable  compensation  for 
the  services  rendered,"  we  dismissed  the  bilL 
In  the  coiurse  of  our  opinion  In  that  case, 
speaking  by  Mr.  Justice  Mestrezat,  we  held, 
as  a  matter  of  law,  that  the  action  of  the 
board  of  directors  In  raising  the  remunera- 
tion of  the  officers  in  question,  who  were 
members  of  the  board  and  voted  for  the  in- 
crease, was  voidable,  but  not  void;  hence 
that,  in  the  absence  of  evidence  showing 
overreaching  or  acttial  fraud,  even  though 
"the  voting  of  the  salaries  by  the  directors 
constituted  a  technical  or  constructive 
fraud,"  the  action  could  be  and  was  In  fact 
duly  ratified  by  the  stockholders,  and  this, 
notwithstanding  the  majority  of  the  stock 
was  held  and  voted  by  the  beneficiaries  of 
the  act  approved.  We  also  there  distinguish 
Schaffhauser  v.  Ambolt  &  Schaefer  Brewing 
Cio.,  218  Pa.  298,  67  Atl.  417,  11  Ann.  Gas. 
772,  relied  upon  by  appellants. 

In  all  essential  particulars,  save  three, 
the  rulings  in  Russell  v.  Patterson,  supra, 
amply  cover  and  govern  the  points  raised  at 
bar ;  and,  on  that  authority,  we  dismiss  most 
of  appellants'  contentions,  without  further 
discussion.  The  three  material  particulars, 
however,  wherein  the  present  case  differs 
from  Russell  v.  Patterson,  are  these:  Here, 
after  determining  $12,000  each  per  annum  to 
be  a  Just  and  proi>er  compensation  for  all  the 
services  rendered  by  Mr.  Edgerton  and  Mr. 
Genung,  the  court  below  awarded  each  of 
them,  for  the  fiscal  year  1915,  $21,876.10; 
next,  the  final  decree  entered  stipulates  that 
hereafter,  without  limit  of  duration,  the  de- 
fendant company  Is  restrained  from  paying 
either  one  of  these  defendants  "greater  sums 
than,  with  their  fixed  salaries,  will  give  to 
each  $12,000"  per  annum;  finally,  the  In- 
junction, in  effect,  forbids  any  payments  over 
and  above  fixed  salaries,  to  the  successor  oC 
Edwin  T.  Moore  and  tiie  three  other  em- 
ploy^ voted  extra  compensation  by  the  sec- 
ond resolution  of  May  17,  1915,  although 
none  of  the  latter  are  included  as  defend- 
ants, and  no  finding  ia  made  by  the  court  be- 
low that  their  respective  services  did  not 
merit  the  amounts  awarded  them  by  the 
board  of  directors  of  the  defendant  corpora- 
tion, or  that  such  sums  were  more  than  rea- 
sonable compensation.  These  three  matters 
raise  questions  which  call  for  further  con- 
sideration. 

On  the  first  of  the  above-suggested  points, 
it  appears  that  Mr.  Edgerton,  Mr.  Genung, 
and  Mr.  Edwin  T.  Moore,  from  1905  to  1913. 
inclusive,  together  with  their  regular  sal- 
aries, each  received  an  average  compensation 
of  about  $11,000  per  annum;  but  in  1914 
they  were  paid  only  their  salaries,  there  be- 
ing no  extra  profits  to  divide.  In  1915  the 
business  of  the  boiler  works  was  very  pros- 
perous, and  the  court  below,  by  its  decree, 
allows  to  Mr.  Edgerton  and  Mr.  Genung,  re- 
spectively, $21,876.10  out  of  the  profits  of 
that  year;    and  this  is  donp  on  the  theory 


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SOTTKK  T.  COATXSVIIXS  BOIL£R  WORKS 


747 


that,  when  the  amounts  In  question  are 
spread  over  the  whole  period  Involved,  In- 
cluding 1914,  when  no  bonuses  were  paid, 
they  give  to  each  of  these  defendants  only 
$12,000  per  annum,  the  compensation  which 
the  chancellors  found  to  be  right  and  proper. 
The  weakness  of  this  position,  however,  Is 
that  the  resolution  of  1904  expressly  stipu- 
lates the  beneficiaries  therein  named  shall. 
In  addition  to  their  regular  salaries,  "par- 
tldpate  from  year  to  year"  In  the  net  earn- 
ings of  the  coriwratlon,  "as  shown  by  the 
books  at  the  close  of  each  business  year." 
It  appears  that  divisions  were  made  from 
year  to  year  In  strict  accordance  with  the 
terms  of  this  resolution,  and  that  the  shares 
awarded  to  Messrs.  Edgerton,  Genung,  and 
Moore  were,  on  each  occasion,  accepted  by 
them.  Under  these  circumstances,  the  ques- 
tion of  compensation  for  past  years,  so  far 
aa  the  recipients  are  concerned,  was  closed; 
and  the  only  Issue  which  the  trial  court  prop- 
erly had  before  it  was  as  to  the  compensa- 
tion proposed  to  foe  paid  them,  or  any  of 
tbaat,  for  the  year  1915.  Ab  already  statSed, 
the  finding  on  that  score  was  that  112,000 
per  annum  represented  the  amount  earned  by 
each  of  these  defendants,  and  since,  on  the 
facts  at  bar,  it  was  within  the  power  of  the 
court  to  make  this  finding,  which  was  un- 
appealed  from,  that  sum  marked  the  limit  of 
the  allowance  of  remuneration  for  the  fiscal 
year  1915  which  should  have  been  made  to 
Mr.  Edgerton  and  Mr.  Genung;  hence,  to 
this  extent,  at  least,  the  decree  complained 
of  must  be  modified. 

[2-4]  On  the  question  of  the  right  of  the 
learned  court  below  to  fix  compenisatlon  for 
services  to  be  rendered  tn  the  future,  and  to 
restrain  the  defendant  corporation  from  pay- 
ing to  certain  designated  persons  more  than 
a  stipulated  sum  per  year  for  such  future 
services,  we  find  no  authority  for  the  decree 
as  entered.  It  is  well  established  that  direc- 
tors may  contract  with  agents  or  employ^  of 
Ihelr  corporation,  who  are  likewise  directors, 
and  that,  though  always  subject  to  close  scru- 
tiny,  and  voidable  for  fraud  or  overreaching, 
sach  contracts  are  not  ipso  facto  void  (Union 
Pacific  R.  R.  Co.  V.  Credit  MoblUer  of  Amer- 
ica, 135  Mass.  387,  376;  Nye  ▼.  Storer,  168 
Mass.  63,  65,  46  N.  B.  402);  that  when  for 
compensation,  and  the  latter  Is  fair  an!d  rea- 
sonable, these  contracts  will  be  sustained 
(FiUebrown  v.  Hayward,  190  Mass.  472,  478, 
77  N.  B.  45;  Praker  y.  A.  G.  Hyde  &  Son, 
135  App.  Dlv.  64,  119  N.  Y.  Supp.  879;  Waln- 
wrlght  ▼.  P.  H.  &  F.  M.  Roots  Co.,  176  Ind. 
682,  97  N.  E.  8,  in  Supreme  Court  of  Indi- 
ana); further,  that  a  contract  of  this  kind 
may  be  ratified  and  ma'de  valid  by  acquies- 
cence of  the  stockholders  (Kelley  v.  Newbury- 
port  &  Amesbury  Horse  R.  R.  Co.,  141  Mass. 
496,  499,  6  N.  E.  745);  finally,  that  where  a 
board  of  directors  votes  excessive  salaries 
to  certain  of  its  members,  who  are  also  olB- 
cers  or  employes  of  the  corporation,  even 
though  sudi  acti  on  may  subsequently  be  rat- 


ified at  a  stockholders'  meeting,  when  called 
In  question  by  a  minority  stockholder,  the  ' 
action  of  the  board  Is  subject  to  review  by  a 
court  In  equity,  an'd.  If  the  Qndlng  of  the  lat- 
ter tribunal  is  that  the  salaries  In  question 
are  exorbitant,  it  may  debetrmine  the  value  of 
the  services  rendered  by  the  officers  or  em- 
ployes in  question,  and  restrain  the  corpora- 
tion from  paying  in  excess  thereof  (Ray- 
nolds  V.  Diamond  Mills  Paper  Co.,  69  N.  J. 
Bq.  299,  310,  60  Atl.  941,  et  seq. ;  Llllard  T. 
Oil,  Paint  &  Drug  Co..  70  N.  J.  E5q.  197,  56 
Atl.  254,  58  Atl.  188;  Davis  v.  Thomas  &  Da- 
vis Co.,  63  N.  J.  Eq.  572,  52  AU.  717;  Wayne 
Pike  Co.  T.  Bammons,  129  Ind.  368,  379,  27 
N.  E.  487 ;  Flllebrown  v.  Hayward,  190  Mass. 
472,  478,  77  M.  B.  45).  This  rule  Is  fully  rec- 
ognized by  us  in  Russell  v.  Patterson,  supra ; 
but,  of  course,  in  such  instances,  orUlnarily, 
there  is  no  way  of  satisfactorily  determining 
the  value  of  services  to  be  rendered  In  the 
fnture,  when  conditions,  ex  necessitate,  may 
be  essentially  different  from  those  in  the  past. 
Therefore,  generally  speaking,  In  cases  of  this 
character,  a  court  of  equity  may  deal  only 
vrlth  the  facts  presently  before  It  and  thus 
determine  the  reasonable  compensation  ac- 
tually earned.  Exceptional  cases  may  arise, 
however,  where,  contemplating  a  continuance 
of  an  ascertained  state  of  facts,  an'd  guard- 
ing their  decree  accordingly.  Judicial  tribimals 
may  determine  compensation  to  be  paid  In  the 
future ;  but  we  see  nothing  in  the  case  at  bar 
to  take  it  ont  of  the  general  rule. 

[S]  If  courts  may  depart  at  wIU  from  the 
rule  Just  stated,  and  substitute  their  Judg- 
ments for  the  legally  exerclscfd  discretion  of 
the  directors  of  private  business  corporations, 
In  determining  the  question  of  future  compen- 
sation to  be  paid  to  the  latter's  employes, 
thai  there  Is  no  reasonable  limit  to  the  right 
of  Judicial  Interference  with  corporate  man- 
agement; but,  fortunately,  this  Is  not  the 
law.  Perhaps  It  may  be  said  that  the  ques- 
tion of  the  right  of  the  ooort  below  to  fix  the 
comi)ensatlon  to  be  paid  in  the  future  to  Mr. 
Edgerton  and  Mr.  Genung,  is  not  raised  by 
the  appellants;  but  since,  aa  already  In'dlcat- 
ed,  we  must  remit  the  record  for  modification 
of  the  decree  along  other  lines,  we  deem  It 
proper  to  call  attention  to  this  feature  of  the 
case. 

The  last  question,  as  to  the  restraint 
which  the  decree,  in  effect,  places  upon  the 
directors  of  the  defendant  corporation,  in  re- 
spect to  the  payment  of  extra  compensation 
for  the  year  1915,  to  employes  other  than  Mr. 
ETdgerton  and  Mr.  Genung,  Is  raised  by  at 
least  one  of  the  assignments  of  error.  In 
reference  thereto,  it  is  sufficient  to  say  that, 
while  the  court  below  may  have  been  fully 
Justified  In  refusing  to  sanction  payment  of 
the  full  amount  voted  to  Fred  E.  Moore,  the 
successor  of  Edwin  T.  Moore,  deceased,  yet 
we  see  no  warrant  for  absolutely  prohibiting 
the  payment  of  any  extra  compensation  what- 
ever to  Mr.  Moore  and  the  other  three  em- 


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ployte,  In  no  way  Included  as  defeiMants, 
to  whom  the  directors  likewise  Totied  bonuses 
for  the  year  1915.  On  the  present  record, 
the  decree  as  formulated  seems  too  compre- 
hensive In  this  regard. 

[6]  At  this  point  we  take  occasion  to  say 
there  is  no  merit  in  the  contention  that  the 
second  resolution  passed  at  the  meeting  in 
May,  1916,  requires  a  formal  contract  to  be 
entered  Into  with  those  who  are  to  receive 
extra  compensation  thereunder.  Such  a  res- 
olution, when  acted  upon,  is  in  Itself  sufficient 
evidence  of  the  fixed  understanding  between 
the  corporation  and  its  employes.  McGowan 
V.  Uncoln  Park  &  Steamboat  Consol.  Co.,  181 
Pa.  55,  56,  61,  37  Aa  1119;  Fraker  v.  A.  G. 
Hyde  &  Son,  135  App.  Dlv.  64, 119  N.  Y.  Supp. 
879;  Young  v.  U.  S.  Mtge.  &  Trust  Co.,  214 
N.  Y.  279,  287, 108  N.  E.  418.  We  further  add 
that  most  of  the  criticisms  made  by  counsel 
for  the  aH)elIantB  upon  tbe  form  of  the  ad- 
judication as  stated  by  the  court  below  are 
fully  Justified.  The  learned  chancellors  fail- 
ed strictly  to  follow  our  equity  rules,  and  this 
has  aVlded  to  our  labors  on  review;  but,  since 
we  have  been  able  to  get  a  workable  under- 
standing of  all  the  material  points  Involved, 
It  would  serve  no  good  purpose  to  require 
a  recasting  Of  the  adjudication. 

The  assignments  of  error  which  complain 
of  ruUngs  in  confiict  with  the  viewa  here  ex- 
pressed are  sustaineid,  and  the  record  Is  re- 
mitted to  the  oonrt  below,  with  directions  to 
modify  its  decree  accordingly;  the  costs  to 
be  paid  by  the  defoidant  oorporatioa. 


(»7  Fa.  tut 
WILLIAMS  V.  PHILADELPHIA  RAPID 
TRANSIT  CO. 

(Supreme  Court  of  Pennsylvania.    April  9, 
1917.) 

1.  SxJKDAT  «=>19(1)  —  DxKOTnm  Contract  — 
Relief. 

The  law  will  not  lend  its  aid  to  enforce  an 
executory  contract  made  on  Sunday;  but  the 
parties  to  a  contract  fully  executes  on  that 
day  will  be  left  where  the  law  finds  them,  and 
no  relief  given  to  either. 

2.  Sunday  «=»19(1)  —  Exbcdted  Releasb  — 
Validitt, 

Where  a  release  of  damages  for  personal  In- 
jury was  executed  and  delivered  and  the  consid- 
eration paid  on  Sunday,  the  contract  was  exe- 
cuted and  binding  upon  the  parties,  and,  if  oth- 
erwise valid,  discharged  the  party  liable. 

3.  Evidence  «s»565  —  Opinion   Bvidbnck  — 
Mentai.  Capacttt. 

In  an  action  by  a  passenger  for  personal  in- 
jury, the  admiBsion  of  tlie  opinion  of  the  physi- 
cian, who  examined  plaintiff  the  day  after  his 
release  of  damages  was  signed,  as  to  his  mental 
condition  at  the  signing  of  the  release,  was  erro- 
neous, where  there  was  nothing  to  show  upon 
what  information  such  opinion  was  based. 

4.  Cakbiers  iS=»316(4)  —  Personal  Injubt  — 
Negliqkncb— Pbesumption. 

There  is  a  prima  facie  presumption  of  negli- 
gence on  the  part  of  a  street  railway,  where  a 
passenger  is  hurt  by  a  collision  of  its  cars;  so 
that  a  passenger,  injured  in  such  collision  and 
who  has  not  released  his  riglit  of  action,  is 
prima  facie  entitled  to  recover. 


6.  Davaoes  ®=»208(2)  —  Pebsonai.  Injubt  — 
Question  fob  Juby. 
In  a  passenger's  action  for  personal  injury 
from  a  collision  of  street  cars,  the  nature  of  bis 
malady  and  the  extent  to  which  it  is  referable 
to  the  accident  are  questions  for  the  jury. 

6.  Damages    €=208(3)— Pebsokal    Injury- 
Pain  AND  SuFFEBiNCh— Question  fob  Jubt. 

In  a  passenger's  action  for  personal  injury, 
the  submission  to  the  ^ury  of  the  question  of 
damages  for  future  pam,  suffering,  and  incon- 
venience held  not  error. 

7.  Dakages  <S=»20S(2)  —  Pbbsonai.  Injubt— 
Effect— Question  fob  Juby. 

In  a  passenger's  action  for  personal  injury, 
evidence  of  mental  and  nervous  impairment  as  a 
result  of  the  accident,  though  improbable  and 
strongly  contradicted,  makes  a  question  for  the 
jury. 

Appeal  from  Oonrt  of  Common  Pleas,  Del- 
aware  County. 

Trespass  by  Maiden  S.  Williams  against 
the  Philadelphia  Rapid  Transit  Oompaiiy  tor 
damages  for  personal  Injury.  Verdict  f«r 
plaintiff  for  $1,754,  and  Judgment  thereon, 
and  defendant  appeals.  Reversed,  and  venire 
facias  de  novo  awarded. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TRBZAT,  STEWART,  MOSOHZISKER,  and 
WALLING,  JJ. 

William  I.  Schaffer  and  John  J.  Stetser, 
both  of  Chester,  for  appellant  William  C. 
Alexander,  of  Media,  for  appellee. 

WALLING,  J.  [1]  On  October  16,  1915, 
plaintiff,  while  a  passenger  on  one  of  the  de- 
fendant's electric  street  railway  cars,  was  in- 
jured by  a  collision  which  occurred  near  the 
city  of  Chester  between  the  car  and  another 
car  on  the  same  track.  Plaintiff  was  stand- 
ing in  the  aisle,  and  the  collision  caused  him 
to  fall,  by  which  he  sustained  some  injury  to 
his  arm  and  head.  On  the  next  day,  Sunday, 
one  of  the  defendant's  claim  agents  called  on 
plaintiff  at  his  home  In  Milmont  and  secured 
from  him,  for  the  consideration  of  $15,  what 
purports  to  be  a  full  and  complete  release  for 
all  damages  resulting  to  plaintiff  from  the  ac- 
cident The  release,  admittedly  signed  by 
plaintiff,  was  supported  by  the  testimony  of 
the  claim  agent  which  was  to  the  effect  that 
after  some  negotiations  they  agreed  upon  $15 
as  the  amount  of  damages,  which  was  iMild  to 
plaintiff  and  the  release  executed.  The 
agent  and  a  daughter-in-law  of  plaintiff 
signed  same  as  witnesses.  At  the  argument 
some  doubt  was  expressed  as  to  the  validity 
of  the  release,  because  given  on  Sunday ;  but. 
If  the  transaction  was  completed  by  the  exe- 
cution and  delivery  of  the  release  and  pay- 
ment of  the  consideration,  it  became  an  exe- 
cuted contract  and  binding  upon  the  parties. 
The  law  will  not  lend  its  aid  to  enforce  an 
executory  contract  made  on  Sunday;  but  if 
fully  executed  on  that  day,  the  law  leaves  the 
parties  where  it  finds  them,  and  gives  no  re- 
lief to  either.  "An  executed  contract  Is  a 
contract  which  has  been  fully  i)erformeil 
since  it  was  made,  or  which  was  performeO 


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at  the  time  it  was  made,  so  that  notblng'  re- 
mains to  be  done  cm  either  side."  9  Qyc  244. 
A  Judgment  entered  upon  a  warrant  of  at- 
torney contained  in  a  note  given  on  Sunday 
will  not  be  opened.  McKee  v.  Yemer,  239 
Pa.  69,  86  Atl.  646,  44  Ia  'B.  A.  (N.  &)  727 ; 
Baker  v.  Lnkens,  35  Pa.  146.  Wbere  proper- 
ty  is  sold,  delivered,  and  paid  for  on  Sunday, 
the  transaction  is  vaUd.  Qiestnut  t.  Har- 
baugh  et  al.,  78  Pa.  473.  The  delivery  on 
Sunday  of  a  deed  previously  made  will  pass 
title  to  the  proi)erty.  Shuman  v.  Shuman,  27 
Pa.  90. 

[2, 3}  According  to  the  evidence  for  de- 
fendant, the  release  here  in  question  was  exe- 
cuted and  delivered  and  the  consideration 
paid;  and,  if  so,  nothing  further  remained  to 
be  done,  and  the  transaction  was  closed.  Un- 
der such  circumstances  in  our  opinion  the 
contract,  although  made  on  Sunday,  is  exe- 
cuted and  binding  upon  the  parties,  and,  if 
otherwise  valid,  discharged  the  defendant 
from  liability  to  the  plaintiff  oo  account  of 
the  matters  therein  stated.  However,  plain- 
tiff seeks  to  avoid  the  effect  of  such  release 
by  the  averment,  supported  by  some  testi- 
mony, that  he  was  on  that  day  mentally  in- 
competent to  execute  a  release,  and  that  as 
a  result  of  said  injury  to  his  head  he  became 
80  dazed  and  mentally  confused  as  to  wholly 
incapacitate  tdm  from  doing  any  business, 
and  that  such  condition  long  continued. 
Some  of  the  medical  evidence  on  behalf  of 
the  plaintiff  tends  to  show  that  he  is  still 
suffering  fr<Hn  traumatic  Iiysteria  or  trau- 
matic neurosis.  Admittedly  he  had  prior  to 
the  accident,  and  now  has  in  a  more  advanc- 
ed stage,  arterlo-sclerosis ;  and  defendant's 
medical  evidence  tends  to  show  that  his  men- 
tal impairment  is  the  natural  result  ot  that 
disease.  Dr.  Taylor,  the  family  physician, 
was  called  to  see  plaintiff  on  the  next  day 
after  the  release  was  signed.  He  was  a  wit- 
ness for  plaintiff,  and  during  the  course 
of  his  examination  in  chief  was  interrogated 
as  follows,  viz.: 

"Q.  Between  3  and  4  on  Sunday,  the  17th— 
from  the  history  of  the  case,  as  you  have  it,  and 
from  the  testimony  of  the  witnesses  on  the 
fltand,  and  from  what  you  learned  that  day  and 
saw  of  him  that  day,  from  your  examination, 
was  or  was  not  Mr.  Williams  mentally  capable 
on  Sunday,  the  17tb,  to  know  the  contents  of 
a  paper? 

•'ByMr.Schaffer:  That  is  objected  to.    •    *    • 

"By  Mr.  Alexander:  In  your  opinion,  Doctor, 
was  Mr.  Williams  on  the  17th  of— taking  into 
<M>ngideration  what  you  know  about  the  case — 

"By  the  Court:  xou  have  already  preceded 
that  with  what  occurred,  and  what  he  saw. 

"By  Mr.  Alexander:  And  what  is  the  testi- 
mony here  as  to  his  condition — was  be  able  to 
comprehend  by  reading  a  naper,  or  by  having 
somebody  read  it  to  him,  the  contents,  the  pur- 
ports of  a  pnper?    •    •    • 

"By  the  Witness:  On  Monday,  the  18th.  at 
6:30,  when  I  examined  him,  I  should  say  he  was 
not  responsible. 

"By  the  Court:  You  mean  he  was  not  respon- 
sible? A.  He  was  not  responsible,  to  know 
what  he  would  be  reading  or  signing.  I  saw 
him  at  6:30  on  Monday.  Q.  That  is  not  quite 
the  question  that  is  asked  you.    Mr.  Alexander 


asks  you,  from  what  yon  saw  of  him  then,  ob- 
serving his  mental  condition,  and  from  what  you 
have  heard  of  this  testimony  here,  whether  or 
not  you_  are  able  to  say — express  any  opinion 
about  his  capacity  to  understand  a  paper  read 
to  him,  or  submitted  to  him  to  be  read  by  him- 
self.   A.  I  should  say  he  was  not.    •    •    • 

"By  Mr.  Alexander:  That  is.  you  say,  on  the 
17tb,  he  was  not?    A.  In  my  judgment" 

This  examination  was  taken  under  objec- 
tion and  exception,  and  constitutes  the  third 
assignment  of  error.  Plalnblff's  mental  abil- 
ity to  transact  business  at  the  time  he  signed 
the  release  was  a  vital  question  In  the  case, 
and  was  for  the  jury  under  the  evidence; 
and  yet,  as  to  that,  the  doctor  was  permitted 
to  express  an  opinion  under  such  circum- 
stances as  to  render  it  Impossible  to  know 
upon  what  such  opinion  was  based.  From  the 
course  of  the  examination  it  may  have  been 
upon  information  communicated  to  the  doctor 
on  the  day  of  his  visit ;  we  do  not  know  what, 
nor  by  whom;  it  may  have  been  upon  some 
evidence  which  he  heard  in  court;  we  do 
not  know  to  what  part,  if  any,  of  the  evidence 
he  had  listened;  or  It  may  have  been  upon  his 
own  professional  examination  of  the  plaintiff. 
A  question  calling  for  an  opinion  should  be 
BO  framed  as  to  Indicate  the  basis  upon  which 
the  opinion  is  sought,  so  that  the  court  may 
determine  Its  competency  and  the  jury  its 
valua  In  such  case,  questions  includdng  both 
competent  and  Incompetent  sources  of  Infor- 
mation as  the  basis  of  the  opinion  sought  are 
bad.  It  follows  that  the  admission  of  the 
opinion  of  Dr.  Taylor,  under  the  circum- 
stances disclosed,  was  prejudicial  error. 

[4,  S]  The  learned  trial  judge  was  right 
in  holding  that  if  plaintiff  was  injured  in 
the  collision,  and  had  not  released  his  right 
of  action,  he  was  entitled  to  recover,  as  there 
is  a  prima  facie  presumption  of  negligence 
against  a  street  railway  company  where  a 
passenger  is  hurt  by  a  collision  of  its  cars. 
Madara  v.  Sharaokin  &  Mt  Carmel  Elect.  By. 
Co.,  192  Pa.  542,  43  Atl.  995;  Abel  v.  North- 
ampton Traction  Ca,  212  Pa.  329,  336,  61 
Atl.  916.  The  nature  of  plaintiff's  malady, 
and  to  what  extent,  if  at  all,  it  is  referable 
to  the  accident,  are  questions  for  the  jury. 
Of  course,  under  no  aspect  of  the  case  can  de- 
fendant be  held  liable  for  the  arterlo-sclerosis 
with  which  plaintiff  was  afflicted  before  the 
accident,  nor  for  ita  natural  progress  there- 
after. 

[6,  7]  There  WEis  some  evidence  that  tlie  ac- 
cident had  left  plaintiff  in  a  hazy  mental 
condition,  from  which  at  the  time  of  the  trial 
he  had  not  recovered,  and  also  that  as  a  re- 
sult of  the  accident  he  had  the  nervous  trou- 
ble above  mentioned,  and  that  bis  prospects 
for  recovery  were  not  favorable.  While  this 
was  strongly  contradicted,  we  cannot  say 
that  the  court  erred  In  submitting  to  the  jury 
the  question  of  damages  for  future  pain,  suf- 
fering, and  inconvenience.  In  an  actiou  for 
personal  injuries,  evidence  tending  to  show 
mental  and  nervous  Impairment,  as  a  result 
of  the  accident  complained  of,  is  for  the  jury. 


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although  It  may  seem  Improbable  and  be 
Btrongly  contradicted. 

That  part  of  the  charge  onbraced  in  the 
eighth  assignment  of  error,  referring  to  the 
question  of  damages.  Is  subject  to  criticism. 
The  thought  In  the  mind  of  the  court  does  not 
seem  to  find  expression  In  the  language  as 
reported.  However,  that  and  any  inadequacy 
In  the  charge  can  be  corrected  on  another 
trial.  The  assignments  of  error,  except  as 
herein  stated,  are  not  sustained. 

The  Judgment  Is  reversed,  and  a  venire 
facias  de  novo  awarded. 


(KT  Pa.  «B) 
GRirifnN  et  aL  y.  DELAWARE  &  HUD- 
SON CO. 

(Supreme   Court  of   PenncylTania.     April   16, 
1917.) 

1.  Tbbspabs     9=920(1)  —  Tbespabs      Qttabe 
Olkvovu  Freqit— Possession. 

At  commoa  law  an  action  of  trespass  quare 
clauBum  fregit  cannot  be  maintained  b^  one  nei- 
ther in  actual  nor  conatructive  possession  of  the 
land. 

2.  Tbespass  «=>18  — Obounds  or  Aonoir  — 
Statute. 

Practice  Act  May  25,  1887,  J  3  (P.  I*  271), 
wroviding  that  certain  actions  ex  delicto  should 
be  brought  under  the  one  name  of  trespass,  did 
not  change  the  fundamental  grounds  upon  which 
the  right  to  recover  rests,  or  give  an  action  of 
trespass  where  no  action  for  the  same  cause 
would  arise  at  common  law. 
8.  Mines  and  Minerals  «=»55(8)— Adtebse 
Claw  to  Minerals— Evidence. 

An  adverse  claim  to  the  minerals  in  free- 
hold lauds  must  be  distinctly  established  against 
the  owner  of  the  surface,  which  may  be  done  by 
documents  showing  that  the  minerals  had  been 
conveyed,  excepted,  or  reserved,  so  as  to  vest 
in  the  claimant. 

4.  Mines  and  Minerals  ®=351(1)— Tbespass 
roB  Removal  of  Coal — Possession. 

An  action  of  trespass  for  the  unlawful  min- 
ing of  coal  from  plaintiffs  land  could  not  be 
maintained,  where  plaintiS  had  never  been  in 
actual  or  constructive  possession  of  the  surface, 
which  was  in  the  possession  of  parties  holding 
adversely,  and  under  whose  lease  defendant  had 
removed  the  underlying  coal,  as  plaintiffs,  never 
having  severed  the  coal,  were  not  in  constructive 
possession  there<^ 

Apiteal  from  Ck>urt  of  (3(Hiunon  Pleas, 
Lackawanna  County. 

Trespass  by  Sdmund  R.  Griffin  and  others 
against  the  Delaware  &  Hudson  Company  for 
remoTtng  coal  from  land  claimed  by  plain- 
tiffs. From  an  order  dismissing  exceptions 
to  the  report  and  supplemental  report  of  a 
referee,  d^endant  appeals.  Reversed,  and 
Judgment  entered  for  defendant 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER. STEWART,  rRAZESt,  and  WAL- 
LING, JJ. 

James  H.  Torrey  and  C!harles  H.  Welles, 
both  of  Scranton,  and  Walter  C.  Noyes,  of 
New  York  City,  for  appellant.  Thos.  F. 
Wells,  M.  W.  Stephens,  and  F.  I*  Hitchcock, 
all  of  Scranton,  for  appellees. 


POTTER,  J.  This  was  an  action  of  tres- 
pass brought  by  Edmund  R.  Griffin  et  al 
against  the  Delaware  &  Hndson  (Company, 
to  recover  damages  for  the  entry  by  defend- 
ant on  land  of  which  plaintiffs  claimed  own- 
ership, and  for  mining  coal  and  taking  It 
from  such  land.  It  Is  averred  In  plalntUTs 
statement  of  claim  that  100,000  tons  of  coal 
were  nnlawfnily  removed  by  defendant  be- 
tween the  year  1867  and  the  date  of  suit 
The  pleas  were  not  guilty  and  the  statnte  of 
limitations. 

By  agreement  of  the  parties  the  case  was 
referred  to  Hon.  R.  W.  Arcbbald,  who,  after 
a  full  hearing,  filed  a  report,  with  findings 
of  fact  and  law.  In  which  he  held  that  the 
plaintiffs  never  had  actual  or  constructive 
possession  of  the  coal  in  controversy,  and 
were  not,  therefore,  In  a  position  to  maintain 
this  action,  and  that  Judgment  should  be  en- 
tered for  defendant  E^xceptlons  were  filed  to 
the  report,  whereupon  the  case  was  opened, 
additional  testimony  was  taken,  and  the 
findings  reconsidered  by  the  referee.  He 
then  filed  a  supplemental  report,  with  new 
findings  of  fact  and  law,  in  which  he  reversed 
his  former  ruling,  and  directed  that  Judg- 
ment be  entered  In  favor  of  plaintiffs  for 
the  sum  of  $41,025.  Exceptions  were  filed 
l^  both  parties  to  the  suit,  which  were  dis- 
missed by  the  court  and  Judgment  was  en- 
tered in  accordance  with  the  recommenda- 
tion of  the  referee  In  his  supplonental  re- 
port   Defendant  has  appealed. 

According  to  the  referee's  findings,  the 
material  facts  were  substantially  as  follows: 
The  coal  in  controversy  underlay  a  tract  of 
land  in  Providence  township,  Lackawanna 
(formerly  Luzerne)  county,  which  is  now 
part  of  the  city  of  Scranton,  and  comprised 
3  acres  and  66  perches  of  ground.  This  land 
was  included  in  a  larger  tract  for  which  a 
patent  was  granted,  on  June  15,  1828,  by  the 
commonwealth  to  Thomas  Griffin.  Prior  to 
that  date,  on  February  10,  1828,  Isaac  Grif- 
fin, a  son  of  the  subsequent  patentee,  had 
made  and  delivered  to  Silas  B.  Robinson  a 
general  warranty  deed  for  a  portion  of  the 
land  patented  by  bis  father,  and  Robinson 
took  possession  under  such  deed.  A  year 
later,  on  February  6,  1S29,  Thomas  Griffin 
made  and  delivered  to  Isaac  Griffin  a  deed 
for  the  same  land  that  Isaac  had  already 
conveyed  to  Robinson.  The  deed  of  Isaac 
Griffin  to  Robinson  was  identical  with  that 
of  Thomas  Griffin  to  Isaac  Griffin,  with  the 
exception  of  the  length  of  the  north  line  of 
the  tract  and  It  is  from  that  difference  that 
the  controversy  In  this  case  arises.  The  land 
conveyed  by  Isaac  Griffin  to  Robinson  be- 
gan at  the  Lackawanna  river,  and  extended 
thence  northwest  for  a  distance  of  246  perch- 
es, while  In  the  deed  from  Thomas  Griffin  to 
Isaac  Griffin  the  tract  was  described  as  be- 
ginning at  the  same  point,  and  extending  by 
the  same  course  a  distance  of  264^  perches. 


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GRIFFIN  ▼.  DELAWARE  A  HUDSON  CO. 


751 


beint;  18H  perdies  longer  than  the  corre- 
sponding line  in  the  deed  from  Isaac  OriflSn 
to  Robinson.  The  difference  appears  clearly 
from  the  diagrams  in  the  referee's  supple- 
mental report.  The  courses  and  distances 
on  the  west  and  south  were  the  same  In  both 
deeds,  but  In  neither  one  was  the  distance 
given  on  the  next  to  the  final  course,  which 
terminated  at  the  liockawanna  river. 

PlalntlD's  are  the  heirs  at  law  of  Isaac 
Griffin,  and  claim  to  be  the  owners  of  the 
westernmost  end  of  the  tract,  which  they  al- 
lege was  not  included  in  the  deed  of  their 
ancestor  to  Silas  B.  Robinson.  The  portion 
which  they  claim,  extends  from  a  point  dis- 
tant 246  perches  from  the  river  to  a  point 
264%  perches  distant  therefrom,  being  18% 
by  30  perches  in  area,  containing,  as  stated, 

5  acres  and  56  perches.  In  the  eighteenth 
finding  of  fact  the  referee  found  that: 

"Silas  B.  Robincon,  after  the  conveyance  to 
him  by  Isaac  Griffin  and  wife,  entered  into  the 
actual  possession  of  the  52  acres  and  58  perches, 
with  the  allowance  of  3  per  cent.,  and  be  and 
those  claiming  under  bim  in  line  of  title  have 
fenced  and  lived  upon  and  occupied  the  said 
land,  using  it  for  farming  purposes,  cultivating 
the  same,  pasturini;  cattle  thereon,  cutting  tim- 
ber therefrom,  mining  and  removing  coal,  plot- 
ted it  into  building  lots,  sold  building  lots  cov- 
ering a  portion  of  the  land  in  dispute,  and  par- 
ties purchasing  the  said  Iota  have  built  houses 
and  other  buildings  thereon,  and  are  now  in 
the  actual,  open,  notorious  possession  of  the 
same." 

In  his  first  retort  the  teferee  tonnd  as 
a  fact: 

"The  plaintiffs  bare  never  been  in  the  actnal 
pomession  of  the  land  in  dispute  and  have  not 
severed  the  coal  from  the  surface.  The  Robin- 
sons and  Griffins  and  Von  Storchs  have  been  in 
the  actual  possession  of  tUe  whole  tract  of  land 
nmning  txom  the  Lackawanna  river  back  201% 
rods  to  a  point  about  30  feet  beyond  the  Keyser 
Valley  Brandi,  and  to  the  corner  of  what  is 
known  as  the  Kiilip  0.  Griffin  tract,  and,  being 
so  in  possession,  leased  t^e  coal  to  the  Dela- 
ware &  Hudson  Canal  Company  in  1867,  and 
the  possession  of  the  Griffins  and  the  Delaware 

6  Hudson  Company  has  continued  from  that 
time  to  the  present,  and  has  bem  open,  notori- 
«a»,  and  Tisible." 

In  the  supplemental  report  tills  finding  was 
modified,  so  as  to  exclude  a  ranall  portion  of 
the  piece  occttpied  by  a  railroad.  The  de- 
fendant company,  under  a  claim  of  owner- 
ship through  leases  given  to  them  by  the 
successors  in  title  of  Silas  B.  Robinson,  has 
mined  and  removed  the  coal  from  the  tract 
claimed  by  plaintiffs,  and  It  was  to  reeovn* 
damages  for  this  alleged  trespass  that  the 
present  snlt  was  brought. 

Four  grounds  of  defense  were  set  np:  (1) 
A  valid  paper  title  to  the  coal  in  question. 
(2)  Title  by  adverse  possession.  (3)  That 
plaintiffs  were  never  in  possession  of  the 
locns  in  quo,  and  therefore  were  not  entitled 
to  maintain  an  action  of  trespass  quare 
clausum  fregit  for  the  removal  of  the  coal. 
(4)  That  any  right  claimed  by  plaintiffs  was 
tierred  by  the  statute  of  limitations.  Upon 
the  third  qjiestiou.  the  right  of  plaintiSs 


to  maintain  the  action,  tlie  referee  reversed 
himself.    In  his  original  report  be  said: 

"On  the  whole  case,  therefore,  whatever  the 
state  of  the  title,  the  plaintiffs,  as  I  view  it,  are 
not  in  a  position  to  maintain  the  action,  never 
having  had  actual  or  constructive  possession 
of  the  coal  in  controversy.  This  is  decisive  of 
the  case,  and  judgment  must  therefore  be  en- 
tered for  the  defendant." 

But  in  his  supplemental  report  the  referee 
reached  the  conclusion  that  plaintiffs  had 
constructive  possession  of  the  coal,  what- 
ever may  have  been  the  situation  as  to  the 
surface,  and  that  therefore  they  might 
maintain  their  action. 

[1]  It  is  conceded  that  plaintiffs  were 
never  in  actual  physical  possession  of  the 
tract  of  land  here  In  question.  The  referee 
afllrmed,  without  qualification,  defendant's 
seventh,  thirty-first,  and  thirty-seventh  re- 
quests for  findings  of  fact,  which  were  to 
that  effect,  and  no  exception  was  taken  to 
such  afllrmance.  It  is  admitted  that  the 
common-law  action  of  trespass  quare  clausum 
fregit  conld  not  be  maintained  by  one  not 
In  possession  of  the  land.  But  it  Is  contend- 
ed that  this  rule  was  changed  by  the  practice 
act  of  May  25,  1887  (P.  L.  271),  by  which  all 
distinctions  between  actions  of  trespass  are 
said  to  bare  been  abolished. 

[2]  In  Weisfield  v.  Beale,  231  Pa.  39,  42,  79 
AtL  878,  879,  we  said: 

"Under  the  act  of  May  26,  1887  (P.  I*  271, 
{  3),  all  actions  ex  delicto,  whether  trespass, 
trover,  or  trespass  on  the  case,  are  now  brought 
under  the  one  name  of  trespass.  The  distinc- 
tion, therefore,  between  trespass  quare  clausum 
fregit,  in  which  actual  or  constructive  posses- 
sion in  the  plaintiff  was  necessary,  and  trespass 
on  the  case,  in  which  it  was  not,  ia  no  longer  of 
importance." 

That  related,  however,  only  to  the  form  of 
procedure.  It  was  intended  to  point  out 
that,  under  the  statute,  recovery  might  be 
had  in  an  action  of  trespass^  where  formerly 
upon  the  facts  the  only  remedy  would  have 
been  in  an  action  niKin  the  case.  But'  the 
fundamental  requirements,,  upon,  which  the, 
right  to  recover  rests,  have  not  been  changed. 
Ttie  act  of  1887  "was  intended  to  disveuse 
with  fonmaUty,  but  to  insist  on. matters  of 
substance^  indispensable  to  an  intelligent 
and  just  judgment  between ,  the  parties." 
WinfelebUke  v.  Van  Dyke,  161  Pa.  6,  28  AtU 
937.   . 

In  the  case  at  bar  plaintiffs  claimed  di- 
rect damages  for  an  onlawfifl  and  forcible 
entry  upon  their  premises  and  nemoval  of 
the  coal  therefrom.  In  tb^r  statement  they 
aver  that  they  were  In  possession  of  the 
premises,  and  that  defendant  did  "with  force 
and  arms  enter  upon  and  into  the  said 
parcel  of  land  beneath  the  surface  thereof 
from  Its  own  land  adjoining,  and  did  mine 
a  large  quantity  of  coal  therefrom  ^nd  con- 
vert It  to  Its  own  use.  If  plaintiffs  can  re- 
cover at  all.  It  must  be  in  an  action  in  the 
nature  of  quare  clausum  fregit.  The  an- 
tboritles  are  clear  that,  in  order  to  maintain 


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sndi  an  acUon,  a  plaintiff  most  have  been 
In  possession,  either  actual  or  constructive, 
at  the  time  the  trespass  was  committed. 
Greber  v.  ECleckner,  2  Pa.  289;  King  v.  Bak- 
er, 25  Pa.  186;  Collins  v.  Beatty,  148  Pa. 
65,  23  Atl.  982;  Wilkinson  v.  Connell,  158 
Pa.  126,  27  Atl.  870;  Bnsch  y.  Calhoun.  14 
Pa.  Super.  Ct  678;  VandersUce  v.  Donner, 
26  Pa.  Super.  Ct  319.  The  referee  so  found 
In  his  third  finding  of  law.  He  further 
found  as  a  fact  that  there  never  had  been 
actual  possession  by  plaintiffs,  or  any  of 
them.  He  was  also  of  opinion  that  plaintlfTs 
had  not  shown  that  they  were  at  any  time 
in  constructive  possession  of  the  surface. 
But  in  Ills  supplemental  report  he  held  that 
there  was  constructive  possession  of  the 
coal,  and  on  that  ground  he  awarded  damr 
ages  to  plaintiffs.  He  based  this  conclusion 
on  the  ground  that  there  had  been  a  sever- 
ance 4>t  the  coal  from  the  surface.  He  said : 
"When  the  coal  is  severed  from  surface,  and 
a  separate  estate  created  in  it,  there  ia  no  good 
reaaon  why,  as  to  such  coal,  ownership  of  the 
title  should  not  draw  to  it  the  constructive  pos- 
session, BO  as  to  protect  the  real  owner  against 
any  one  trespassing  and  mining  from  it." 

He  had  previously  said : 

"It  may  be  that  eonstructive  possession  of 
the  coal,  as  distinct  from  the  surface,  is  not  per- 
mitted where  coal  and  surface  remain  under  one 
title,  and  the  surface  is  in  the  actual  possession 
of  another." 

In  this  connection  the  referee  in  hia  first 
report  said,  most  convincingly; 

"While  by  the  leases  in  evidence  there  ia  a 
severance  of  the  coal  for  mining  purposes,  it 
is  not  absolnte  or  complete]  a  reversionary  in- 
terest, as  noted  above,  being  retained  in  the 
lessors,  contingent  on  the  termination  of  the 
leases  for  any  reason.  But  more  than  that: 
Having  rexara  to  the  effect  given  to  the  sever- 
ance, in  the  rule  invoked,  the  purpose  being  to 
protect  the  mineral  estate  from  an  adverse  pos- 
Mssion  of  the  surface,  that  which  was  intended 
to  protect  that  estate  cannot  be  made  the  basis 
of  encumbering  it.  It  is  in  fact  no  concern  of 
the  idaintiffs  as  to  what  has  been  d<me  with 
the  coal,  or  how  it  has  been  treated  by  others. 
Whatever  has  happened  to  it  is  not  of  their 
doing,  and  neither  adds  to  nor  detracts  from 
their  rights  with  respect  to  it,  nor  can  they  predi- 
cate anything  up<m  it." 

The  only  severance  was  vniet  the  leases 
fn>m  the  holders  of  the  BoMnson  title  to  de- 
fendant, niese  leases  are  not  recognized  by 
plaintiffs,  as  affecting  their  rights  in  any 
way,  and  they  cannot  be  used  to  aid  them 
In  establishing  constructive  possession  of  the 
coal.  We  can  see  nothing  In  the  facts  to 
justify  the  referee  in  changing  his  ccmcln- 
sion  In  this  req;>ect.  Had  the  plaintiffs  or 
th^r  ancestors  severed  the  coal  from  the 
Airface,  a  different  situation  would  be  pre- 
sented. 

[S]  The  only  case  cited  by  counsel  for  ap- 
pellees upon  this  point  is  Plummer  y.  Hill- 
side Coal  ft  Iron  Co.,  160  Pa.  483,  28  AtL 
863,  and  there  the  severance  was  made  by 
the  nndlspnted  owner  of  the  land  from 
whom  both  parties  claimed  title.  In  the 
present  case  there  was  nothing  to  show  any 
•satrj  by  plaintiffs  into  possession  of  the 


subsurface  estate  Tbe  correct  principle  is 
stated  in  Bainbridge  on  the  Law  of  Mines 
&  Minerals  (4th  Bd.)  28,  where  It  Is  said: 
"In  all  freehold  lands  an  adverse  claim  to  the 
mineral  must  be  distinctly  established  against 
the  owner  of  the  surface.  This  may  be  effected 
by  the  production  of  documents  snowing  tliat 
the  minerals  liave  been  conveyed,  excepted  or 
reserved,  so  as  to  have  become  vested  in  tho 
claimant" 

[4]  Nothing  of  the  kind  was  shown  in 
the  case  at  bar,  and,  as  these  plaintiffs  were 
in  neither  actual  nor  constructive  posses- 
sion of  the  surface,  they  cannot  be  held 
to  have  been  In  constructive  possession  of 
the  coal.  The  alleged  severance  was  not  by 
any  act  of  theirs,  but  the  leases  were  made 
by  persons  who,  according  to  plaintiffs'  con- 
tention, had  no  title  to  either  estate,  and  no 
power  to  sever  them.  If  plaintiffs  should 
concede  that  these  leases  effected  a  valid 
severance,  it  would  follow  that  defendant 
thereby  acquired  the  right  to  mtae  the  coaU 
and  this  action  of  trespass  could  not  tie- 
maintained. 

We  think  the  referee  very  properly  deter- 
mined. In  his  first  report  that  as  plaintiffs 
had  neither  actual  nor  constructive  posses- 
sion of  the  coal  in  dispute,  they  were  not 
in  a  position  to  maintain  this  action.  As 
this  is  decisive  of  the  case,  it  becomes  un- 
necessary to  consider  other  questions  raised. 
It  is,  however,  by  no  means  clear  that  under 
a  fair  and  reasonalde  oonstruction  of  the 
deed  from  Isaac  Oriffin  to  Silas  B.  Robinson, 
the  defendant  and  its  predecessors  were- 
without  a  paper  title  to  the  premises  in  dis- 
pute. It  requires  a  strained  inference,  to 
say  the  least  to  support  the  conclusion  that 
Isaac  Qriffln,  in  the  year  1828^  Intended  t» 
retain  a  small  piece  of  isolated  ground,  18^ 
by  30  perches,  at  the  rear  of  the  tract  he 
conveyed  to  Robinson.  All  the  fiicts  point 
strongly  to  the  conclusion  that  all  parties- 
interested  believed  that  Robinson  acquired 
all  of  Isaac  OrUBn's  interest  in  that  particu- 
lar piece  of  land  in  1828,  and  that  they  all 
acted  in  accordance  with  that  belief  from 
that  time  on.  All  the  lines  and  angles  and 
distances  in  the  deed  from  Thomas  to  Isaac 
Oriffin,  and  in  that  from  the  latter  to  Robin- 
scm,  are  Identical,  except  that  of  the  norther- 
ly line;  and  taking  into  consideration  the 
monuments  upon  the  ground,  and  the  acre- 
age intended  to  be  conveyed,  the  longer  line, 
running  204)6  perdies  from  the  river,  seems 
to  be  imperatively  required  to  meet  the  con- 
ditions. No  reasonable  explanation  was  of- 
fered for  the  discrepancy  in  the  loigth  of 
the  northerly  line  as  it  appears  in  the  deed 
made  by  Isaac  Oriflln  to  Robinson.  Possibly 
the  length  of  the  line  was  first  noted  by  the 
surveyor  In  figures,  which  afterwards  were- 
accidentally  transposed,  so  that  264  perches 
appeared  as  246  perches.  Conjecture  as  to- 
this,  however,  is  useless. 

But  leaving  out  of  consideration  the  ques- 
tion of  paper  title,  and  without  reference 
to  tite  additional  claim  that  defendant  and 


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SHSAFXB  T.  WOODSIDB 


753 


Its  predecesflon  had  aoqiiired  title  to  the 
coal  by  poeseasloii,  and  to  tbe  farther  claim 
tliat  tbe  action  was  barred  by  tbe  statute  of 
limitations,  It  Is  quite  suflSclent  to  rest  the 
case  upon  the  conclusion  first  reached  by 
the  referee  that,  in  the  absence  of  actual 
or  constructtve  possession  of  the  coal,  plain- 
tiffs bad  no  standing  to  maintain  this  ac- 
tion. 

Tbe  Judgment  is  reversed,  and  is  here  en- 
tered for  defendant. 


(257  Pa.  276) 

BHBAFEB  et  al.  ▼.  WOODSIDE  et  al. 

(Supreme  Court  of  Pennsylvania.     March  10, 
1917.) 

1.  Patmekt    «=>66(5)  —  Peisuicptiow     and 
BuBDKN  OF  Paoor. 

The  role  that  after  the  lapse  of  20  yean 
debts  by  specialty  are  presumed  to  be  paid 
does  not  bar  the  debt,  but  is  merely  a  rule  of 
evidence  affecting  the  burden  of  j^roof,  and  with- 
in that  time  the  burden  of  proving  payment  is 
on  the  debtor,  and  after  that  time  it  is  upon  the 
creditor.  The  presumption  is  rebuttable  by  any 
competent  evidence  tending  to  show  that  the 
debt  was  not  in  fact  paid,  though  it  should  be 
dear  and  convincing,  especially  where  suit  is 
not  brought  until  after  tne  debtor's  death. 

2.  MOBTGAGBS  «=319(3)  —  PaTMINT  —  SUFFI- 
OIENOT  OF  ETIDKNCK. 

EJvidence  upon  a  scire  facias  issued  in  Au- 
gust, 1915,  upon  a  mortgage  executed  in  1876, 
wherein  the  administrator  of  the  estate  of  the 
last  surviving  mortgagor  pleaded  payment,  and 
relied  upon  the  presumption  of  payment  aris- 
ing from  the  lapse  of  more  than  20  years,  Keld 
sufficient  to  overcome  the  presumption  of  pay- 
ment, so  as  to  make  payment  a  question  for  tbs 
Jury. 

Appeal  from  Oonrt  of  Common  Ptees, 
Schuylkill  Gonnty. 

Sdre  fiidas  snr  mortgage  by  A.  W.  Sheafer 
and  another,  sarvlvlag  executors  of  tbe  estate 
of  Peter  W.  Sheafer,  deceased,  against  A.  B. 
Woodslde  and  others.  Jndgmoit  for  defend- 
ants noD  obstante  veredicto,  and  plaintiflb 
appeal.  Reversed,  and  recoiQ  remitted,  with 
direction  to  enter  Judgment  <m  the  verdict 

Argued  before  BROWN,  C.  X,  and  MES- 
TREZAT,  POTTER,  FBAZER,  and  WALL- 
ING. JJ. 

John  G.  Jubjuaa,  of  Phlladdphla,  and 
Wo4Mbnry  &  Woodbury,  of  PottsvUto,  for  ap- 
pdlanta.  JV>hn  Robert  Jones,  of  Pottsville, 
for  appdlees. 

FRAZER,  J.  In  1876  Mrs.  A.  B.  Wood- 
side  and  her  three  daughters,  Virginia,  Oer- 
aldine,  and  Fannie,  ezecnted  a  b<nid  and 
mortgatpe  to  Peter  W.  Sheafer,  to  aeoare  the 
payment  of  $2,660  in  two  years,  covering 
property  owned  by  than  in  the  borough  of 
Pottsville.  Tbe  mortgage  was  duly  recorded 
in  tlie  office  for  recording  deeds  in  Schuylkill 
county  on  June  24,  1876,  in  Mortgage  Book 
1  A  H,  page  395.  Peter  W.  Sheafer,  the  mort- 
gagee, died  in  1891,  leaving  a  will  In  which 
Arthur  W.  Sheafer  and  Henry  W.  Sheafer 
were  named  as  executors.    At  the  time  of  his 


death  tlie  bond  and  mortgage  above  refemJd 
to  were  found  among  Ills  papers;  the  bood 
having  indorsed  thereon,  in  the  writing  ot 
Peter  W.  Sheafer,  a  payment  of  $56,  under 
date  of  December  22,  1877.  There  is  no  ev- 
idence that  demand  for  payment  of  the  in- 
debtedness secured  by  tbe  mortgage  was 
made  until  after  the  death  of  the  last  sur- 
vivor of  the  moitgragors,  when  the  executors 
of  the  estate  of  Peter  W.  Sheafer,  on  August 
25,  1915,  Issued  a  scire  faxdas,  to  which  the 
administrator  of  the  estate  of  Geraldine 
Woodsfde,  the  last  survivor,  pleaded  payment, 
and,  in  support  of  this  plea,  at  the  trial  relied 
upon  the  presumption  of  payment  by  reason 
of  lajpse  of  time,  and  presented  a  point  for 
binding  Instructions  for  defendant.  The  trial 
Judge  reserved  the  point,  an!d  submitted  to 
the  Jury  the  facts  presented  by  plalntlfT  to 
rebut  presumption  of  payment.  A  verdict 
was  rendered  in  plaintiff's  favor  for  the 
amount  of  the  mortgage,  with  interest,  aggre- 
gating, after  deducting  the  payment  Indorsed 
on  the  boi^d,  the  sum  of  $8,727.87.  Judgment 
was  subsequently  entered  in  fkvor  of  d^end- 
ant  new  obstante  veredicto,  whereupon  plain- 
tiff appealed. 

A  period  of  36  yeats  elapsed  from  the  ma- 
turity of  the  mortgage  until  the  beginning  of 
foreclosure  proceedings.  Dr.  O'Hara,  a  prac- 
ticing physldan  in  Pottsville  for  20  yieaiB, 
called  by  plaintiff,  who  had  been  a  ftunlly 
physician  of  the  Wooidsldes,  although  only 
Fannie  and  Geraldine  were  living  when  he 
first  attended  them,  testlfled  that  in  1914, 
shortly  after  tbe  death  of  Fannie,  Geraldine, 
the  survivor,  spoke  to  Idm  in  reference  to 
the  mortgage  due  the  Sheafer  estate,  and, 
while  the  witness  was  unable  to  recall  the 
exact  language  of  the  conversation,  he  stated : 

"She  told  me  she  did  not  know  what  would 
happen  to  them,  or  what  would  happen  to  her, 
or  would  become  of  her ;  I  do  not  exactly  know 
the  verbatim  statement,  but  she  wept,  and  so 
forth,  and  she  said  that  the  Sheafers  held  a 
mortgage,  or  that  she  was  in  a  great  debt  to 
them,  in  other  words." 

He  testlfield  furth^  she  told  hint : 
"She  did  not  know  what  would  became  of 
them  now;  she  did  not  know  whether  Sheafers 
will  push  the  mortgage  or  not,  and  she  was  in 
a  very  nervous  state,  not  knowing  what  would 
beorana  of  her." 

He  also  testlfled  tbe  family  had  been  in 
straitened  financial  ctrcumstances,  and  had 
received  assistance  from  neighbors,  and  fur- 
ther that  Geraldine  requested  him  to  speak 
to  the  Sheafers  about  the  mortgage,  which  he 
snbsequmtly  did  by  informing  Lesley  Sheafs 
er  that — 

"one  of  those  Miss  Woodsides  is  worried  to 
death  about  what  will  become  of  her  now,  since 
the  other  sister  is  gone ;  she  did  not  know  what 
will  become  of  the  place  now." 

I^esley  Sheafer,  called  as  witness  by  plain- 
tiff, corroborated  Dr.  O'Hara's  testimony  as 
to  the  conversation  In  relation  to  the  Wood- 
side  mortgage,  and  testlfled  to  bringing  the 


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rabject  to  the  attention  of  A.  W.  Sheafer, 
one  of  the  ezecutore  of  the  Sheafer  estate, 
who,  following  that  conTersatloii,  on  Deoeta- 
ber  22,  1914,  wrote  Miss  Woodslde,  as  fol- 
lows: 

"Dear  Miss  Woodside:  Information  has  come 
to  us  throoRh  Dr.  O'Hara  that  you  are  worried 
in  regnr)  to  the  mortgage  which  we  hold  on 
your  property  at  219  South  Center  street.  We 
therefore  take  this  opportunity  of  assuring  you 
that  we  have  no  intention  of  in  any  way  en- 
deavoring to  collect  this  mortgage  or  any  inter- 
est thereon  during  your  lifetime,  or  so  long  as 
it  remains  your  property.  We  trust,  therefore, 
that  you  will  not  allow  this  matter  to  trouble 
you  in  the  least.  Extending  to  you  our  sym- 
pathy in  your  recent  bereavement,  we  are, 
yours  very  truly,  A.  W.  Siieafer,  for  the  Ex- 
ecutors of  Estate  of  P.  W.  Siieafer,  Deceased." 

A  copy  of  this  letter  was  also  sent  to  Dr. 
O'Hara,  who  subsequently  saw  Miss  Wood- 
sfde,  and  was  informed  by  her  of  baring  re- 
ceived the  letter  from  Mr.  Sheafer,  and  that 
it  gave  her  much  relief. 

[1]  The  above  Is  the  erldence  relied  apon 
by  plaintiff  to  rebut  the  presumption  of  pay- 
ment arising  from  lapse  of  time.  The  rule 
that  after  the  lapse  of  20  years  debts  of  err- 
ery  kind  are  presumed  to  be  paid  Is  a  rule 
at  coDvenlraice  an'd  policy,  resulting  from  a 
necessary  regard  for  the  peace  and  security 
of  society,  and  also  for  the  debtor,  who  should 
not  be  called  upon  to  defend  stale  claims  at 
a  time  whm  witnesses  are  dead,  and  papers 
lost  or  destroyed.  Foulk  v.  Brown,  2  Watta, 
209;  Kby  v.  Eby's  Assignee,  6  Pa.  433.  This 
presumption  does  not  bar  the  debt,  bowevef. 
Unlike  the  statute  of  limitations,  it  Is  merely 
a  rule  of  evidence  affecting  the  buiUen  of 
proof,  and  no  new  promise  is  required  as  the 
basis  Oft  an  action.  Eby  ▼.  Eby's  Assignee, 
supra.  Within  20  years  the  burden  of  prov- 
ing payment  is  on  the  d^tor;  after  that 
time  it  shifts  to  the  creditor.  Reed  v.  Reed, 
46  Pa.  239.  To  rebut  the  presumption,  any 
competent  evidence  tending  to  show  the  debt 
is  not  In  fact  paid  will  be  recrived.  Although 
it  need  not  be  of  the  same  quality  as  required 
to  remove  the  bar  of  the  statute  of  limita- 
tions (Gregory  v.  Commonwealth,  121  Pa.  811, 
15  AtL  452,  6  Am.  St  Rep.  801;  Devereuz's 
Estate,  184  Pa.  429,  39  Aa  225),  it  should, 
however,  be  clear  and  convincing,  espedaUy 
where  suit  is  not  brought  until  after  the 
death  of  the  debtor,  as  in  the  present  caae 
(Fidelity  Title  &  Trust  Co.  v.  Chapman,  226 
Pa.  312,  75  AtL  42^.  In  Foulk  v.  Brown,  2 
Watts,  209,  the  rule  was  stated  aa  follows : 

"Within  the  20  years,  the  onus  of  proving  pay- 
ment lies  on  the  defendant;  after  that  time  it 
devolves  on  the  plaintiff  to  show  the  contrary, 
by  such  facts  and  circumstances  as  will  satisfy 
the  minds  of  the  jury  tliat  there  were  other  rea- 
sons for  the  delay  of  the  prosecution  of  the  claim 
than  the  alleged  payment.  And  if  these  facts 
are  sufficient  satisfactorily  to  account  for  the 
delay,  then  the  presumption  of  payment,  not  be- 
ing necessary  to  account  for  it,  does  not  arise. 
Slighter  circumstances  are  sufficient  to  repel 
the  presumption  than  are  required  to  take  the 
'.•use  out  of  the  statute  of  limitations — the  latter 
being  a  positive  enactment  of  the  Legislature; 


the  former  merely  an  inference  on  which  legal 
belief  is  founded. 

In  Reed  v.  Reed,  46  Pa.  239,  242,  it  was 
said: 

"The  presumption  is  rebutted,  or,  to  speak 
more  accurately,  does  not  arise  where  there  is 
affirmative  proof,  beyond  that  furnished  by  the 
specialty  itself,  that  the  debt  has  not  been  paid, 
or  where  there  are  circumstances  that  sufficient- 
ly account  for  the  delay  of  the  creditor." 

[2]  Whether  the  proof  is  ample  to  rebut 
the  presumption  of  payment  must  necessarily 
depend  on  the  particular  circumstances  of 
each  case,  and  It  is  primarily  for  the  court 
to  decide  whether  the  facts,  if  true,  are  ade- 
quate for  the  purpose  for  which  offered,  and 
whether  the  facts  relied  upon  are  true  is  a 
question  for  the  Jury.  Fidelity  Title  &  Trust 
Co.  V.  Chapman,  supra.  In  Gregory  v.  Com- 
monwealth, supra,  the  plaintiff,  to  rebut  tlie 
presumption  of  payment,  relied  upon  ac- 
knowledgments by  the  debtor,  made  to  third 
persons  at  various  times,  to  the  effect  that 
there  was  something  between  him  and  plain- 
tiff wliich  "had  never  been  thoroughly  set- 
tled." It  appeared,  however,  that  the  refer- 
ence might  have  be«i  to  the  settlement  of 
certain  other  matters  concerning  an  estate  in 
which  the  debtor  was  interested,  and  it  was 
held  the  testimony  was  too  uncertain  and 
equivocal  in  meaning  to  rebut  the  presump- 
tion of  payment;  the  court  saying: 

"Any  competent  evidence  which  tends  to  show 
that  the  debt  is  in  fact  unpaid  is  admissible  for 
that  purpose.  The  evidence  may  consist  of  the 
defendant's  admission  made  to  the  creditor  lum- 
self  (Eby  v.  Eby's  Assignee,  5  Pa.  435),  or  to 
his  agent,  or  even  to  a  stranger  (Morrison  v. 
Funk,  23  Pa.  421 ;  Reed  v.  Reed,  46  Pa.  238) : 
but  au  admission  will  not  be  as  readily  implied 
from  language  casually  addressed  to  a  stranger, 
as  when  addressed  to  the  creditor  in  reply  to 
demand  for  a  debt  (Bentley's  App.,  99  Pa.  500). 
It  is  of  no  Consequence  that  the  admission  of 
nonpayment  is  accompanied  by  refusal  to  pay; 
the  action  is  not  founded  on  a  promise,  but  on 
the  original  indebtedness:  the  question,  as 
against  the  presumption,  is  whether  or  not  the 
debt  is  in  fbct  unpaid." 

In  Runner's  Appeal,  121.  Pa.  649,  15  AtL 
647,  statements  made  by  the  debtor  of  an  in- 
tention to  pay  were  held  sufficient  for  the 
purpose  of  rebutting  the  presumption  of  pay- 
ment In  Smith  V.  Schoenberger,  176  Pa.  95. 
84  AtL  864,  declarations  by  defendant  to  the 
effect  that  the  debt  was  not  i>ald,  made  In 
the  presence  of  plaintiff,  was  held  enough  to 
take  the  case  to  tie  Juiy.  In  White  v.  White, 
200  Pa.  565,  !)0  Atl.  157,  an  admission  by  the 
debtor,  in  tiie  presence  of  a  witness,  that  be 
had  no  money  to  pay  the  Interest  on  the  debt 
In  question,  was  held  ample  to  overcome  the 
presumption  of  payment.  In  O'Hara  v.  Oorr, 
210  Pa.  341,  69  AU.  1099,  It  was  held  that  the 
case  was  for  the  Jury,  where  witnesses  for 
the  plaintiff  testified  that  the  deceased  mort- 
gagor stated  he  had  purchased  the  mortgaged 
premises,  but  could  not  pay  the  mortgage, 
and  would  have  to  let  the  property  go.  it 
has  also  been  held  that  proof  of  the  inabllity 
of  the  debtor  to  pay  during  the  whole  period 


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SCHMITT  V.  CITY  OF  CABBONDALB 


766 


of  the  ezifltence  of  the  debt  Is  such  circum- 
stance as  would  explain  tbe  delay,  and  pre- 
vent the  presumption  of  payment  arising. 
For  instance,  in  Taylor  r.  Megargee,  2  Pa. 
225,  226,  it  was  said  that  mere  poverty,  or 
insolvency  alone,  was  insufficient  to  over- 
throw the  presumption  of  payment,  arising 
from  lapse  of  time,  "imless  it  be  such  as  to 
have  created  an  abiding  inability  to  pay  dur- 
ing all  tbe  time";  and  in  Devereuz's  Bstate, 
supra.  It  was  sald: 

"The  ability  of  the  obligor  to  pay  and  the 
pressing  need  of  the  oMigee  for  money  have 
been  recognized  aa  circumstances  which  aid  the 
presumption  of  payment.  Hughes  v.  Hughes, 
54  Pa.  240.  On  the  other  hand,  it  was  held  in 
Tilghman  v.  Fisher,  9  Watts,  441,  that  one  of 
the  intervenint;  circumstances  which  may  rebut 
the  presumption  is  the  inability  of  the  debtor 
to  pay  within  20  years,  and  proof  of  a  con- 
tinued inability  to  pay  was  recognized  in  Tay- 
lor V.  Megargee,  2  Pa.  225,  as  sufficient  to  rebut 
the  presumption.  There  are  convincing  reasons 
for  tbe  rulmg  that  proof  of  the  insolvency  of 
the  debtor  alone  will  not  rebut  tbe  presumption. 
An  insolvent  may  be  possessed  of  property  or  be 
in  receipt  of  an  income,  and  have  the  means 
of  payment;  but  proof  of  positive  inability  to 
pay  is  in  ^ect  that  payment  could  not  have 
been  made." 

In  tbe  present  case  we  have  proof  of  a 
long-continued  inability  of  the  debtors  to  pay; 
that  the  surviving  debtor  recognized  the  ex- 
istence of  the  indebtedness  in  1914,  stating  in 
effect  her  inability  to  pay,  and  requesting  the 
witness  to  see  the  creditor  and  ask  Indul- 
gence; that  tbe  witness  complied  with  tbe 
wishes  of  the  mortgagor,  and,  as  a  result  of 
the  interview,  tlie  debtor  received  the  letter 
in  evidence,  informing  her  that  no  steps  to 
enforce  payment  of  the  indebtedness  would 
be  taken  during  her  lifetime,  or  so  long  as 
the  property  remained  in  her  possession. 
This  evidence  the  jury  accepted  as  true,  and 
was  sufficient,  under  the  decisions,  to  over- 
come the  presumption  of  payment  arising 
from  lapse  of  time. 

The  Judgment  is  reversed,  and  the  record 
remitted,  with  direction  that  Judgment  be  en- 
tered on  the  verdict. 


(JB7  Pa.  «t)      

SCHMITT  T.  OITT  OF  OABBONDAliB  et  aL 

(Supreme  CSourt   of   Pennsylvania.     April  16, 
19170 

1.  Etiokrcs  «=»372(11)  —  AnoixnT  Doou- 
HKNTS— Hap. 

A  map  found  in  the  office  of  a  corporation, 
which  had  conveyed  land  shown  thereon,  was 
admissible  as  an  ancient  document,  where  it 
was  more  than  50  years  old,  and  appeared  to  be 
genuine,  and  had  been  acted  upon. 

2.  Adverse  Possession  «=8(1)  —  Enoboach- 

MENT  ON  POBLIC   PABK— EFFECT. 

A  citizen  acquires  no  rights  as  against  the 
public  by  tbe  maintenance  of  a  fence  in  a  public 
park,  as  the  public's  rights  are  not  lost  by  en- 
croachment, however  long  continued. 

3.  Dedication  ^=>50  —  PtTBUC  Pabe  —  Ex- 
tent. 

A  city's  acceptance  and  use  of  a  park  em- 
braces all  the  land  dedicated  for  that  purpose. 


although  sonae  parts  thereof  along  the  border 
lines  may  not  have  been  actually  used  therefor. 
4.  Estoppel  ®=>68(5)  —  Eminent  Douain  — 
Public  Park. 
Where  a  building  has  been  erected  on  land 
dedicated  as  a  public  park,  an  ordinance  pro- 
viding for  the  condemnation  of  the  land  occu- 
pied by  the  building  does  not  estop  the  munici- 
pality from  claiming  the  property,  especially 
where  no  viewers  were  appointed,  and  nothing 
further  was  done  in  reference  to  the  ordinance. 

Appeal  from  Court  of  Common  Pleas, 
I;a(^awanna  County. 

Bin  in  equity  for  an  injunction  by  W.  H. 
Arthur  Scbmltt  against  the  City  of  Caiiwn- 
dale  and  others.  From  a  decree  on  final 
hearing,  dismissing  the  bill,  plaintiff  appeals. 
Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZEE,  and  WALr- 
UNO,  JJ. 

A.  A.  Vosburg,  of  Scranton,  and  J.  B.  Jen- 
kins, of  Carbondale,  for  appellant.  J.  K 
Brennan,  of  Carbondale,  for  appellees. 

WAIAjING,  J.  This  suit  in  equity  in- 
volves the  question  of  the  location  of  tbe  line 
of  a  public  hi^way.  Prior  to  1843,  the 
Delaware  &  Hudson  Canal  Company  was  the 
owner  of  a  tract  of  land  in  the  village  (now- 
city)  of  Carbondale,  and  in  plotting  the  same 
a  triangulai'  piece  of  land  was  left  open  for 
public  use  as  a  park,  and  known  as  "the  Pa- 
rade."' It  is  shown,  with  well-defined  bound- 
aries, on  an  ancient  map  in  the  possession  of 
the  company.  Lots  appear  on  the  map, 
which  were  conveyed  bounded  by  the  Parade. 
For  nearly  50  years,  prior  to  1890,  the  Pa- 
rade was  used  generally  by  the  public  as  a 
passageway  and  for  all  purposes  of  a  pub- 
lic common.  Meantime  streets  had  been 
opened  on  the  borders  of  the  Parade;  Main 
street  <m  the  west.  Sixth  avenue  on  tiie 
south,  and  Park  Place  <»i  the  northeast  In 
or  about  tbe  year  last  mentioned  the  city 
constructed  an  iron  fence  around  that  part  of 
the  Parade  inclosed  by  these  streets,  and 
therein  was  placed  a  monument  and  a  foun- 
tain ;  and,  at  about  the  same  time,  the  cart- 
way in  Sixth  av^iue  was  paved.  Church 
street  extends  In  a  northerly  and  southerly 
direction,  and  is  a  short  distance  east  of  the 
intersection  of  Park  Place  and  Sixth  avenue. 
It  is  about  455  feet  from  Main  and  Church 
streets,  and  the  land  facing  on  the  south 
side  of  the  Parade  (now  Sixth  avenue)  was 
subdivided  into  lots  as  a  part  of  the  origi- 
nal plot. 

In  1843  tbe  company  sold  one  of  the  lots 
facing  65  feet  on  the  Parade  to  James  Clark- 
son,  a  part  of  which  by  sundry  conveyances 
Is  now  owned  by  plaintiff,  and  thereon  is  a 
two-story  frame  building,  which  stands  about 
one  foot  back  from  the  south  line  of  the 
Parade  as  originally  dedicated.  However, 
from  tbe  time  of  or  shortly  after  the  pur- 
chase by  Clarkson  down  to  this  time  the 
owners  of  the  lot  have  had  adverse  posses- 


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slon  of  a  strip  of  land  some  6  feet  In  width 
extending  In  front  of  the  lot  and  within  the 
lines  of  the  Parade  as  dedicated.  This  strip 
of  land  was  Inclosed  for  many  years  as  part 
of  the  lot  by  a  fence,  and  near  the  west  end 
thereof  was  formerly  a  well,  and  toward  the 
east  end  for  about  30  years  last  past  a  pordi 
stood  thereon  in  front  of  the  building,  and 
tome  of  the  strip  of  land  has  been  used  as 
a  lawn  and  flower  bed.  The  owners  of  some 
of  tho  other  lots  have  also  made  encroach- 
ments upon  the  south  side  of  the  Parade. 
The  original  deed  to  Clarkson  describes  bis 
lot  as  being  130  feet  In  depth,  from  the  Pa- 
rade south,  which  It  Is  exclusive  of  said  8 
feet.  While  there  Is  some  controversy,  yet, 
taking  the  case  as  a  whole,  it  fully  warrants 
the  finding  that  plaintlfTs  paper  title  does 
not  include  the  disputed  land;  and  it  ap- 
pears with  equal  clearness  that  plaintiff  and 
those  through  whom  he  claims  title  have  had 
exclusive  possession  thereof  for  much  more 
than  21  years. 

In  1897  the  dty  passed  an  ordinance  pro- 
viding, as  we  understand  the  facts,  for  the 
condemnation,  inter  alia,  of  the  land  here  at 
issue,  and  a  report  was  made  that  an  agree- 
ment with  the  property  owners  as  to  the 
damages  and  benefits  could  not  be  had ;  but 
no  viewers  were  appointed,  and  nothing  fur- 
ther done  with  reference  thereto.  In  1915 
plaltttUT,  in  remodeling  his  building,  was  pro- 
ceeding to  add  a  new  store  front  thereto, 
which  would  occupy  a  portion  of  said  6  feet, 
when  he  was  prevented  by  the  officials  of  the 
city,  and  filed  this  bill  to  restrain  their  in- 
terference. After  a  full  hearing  the  court 
below  entered  a  final  decree  dismissing  the 
Mil,  fr<nn  which  plaintlfC  took  this  aK>eaL 

[1]  The  record  seems  tree  from  error. 
The  map  in  the  office  of  the  Delaware  ft 
Hudson  Canal  Company  was  found  In  the 
pnH)er  custody,  was  shown  to  be  more  than  30 
years  old,  was  to  all  appearances  genuine, 
had  been  acted  iqton,  and  was  competent  as 
an  ancient  document  Commonwealth  v.  Al- 
burger,  1  Whart  468;  Huffman  &  Foreman 
v.  McCrea,  66  Pa.  93 ;  Smucker  v.  Penna.  R. 
R.  Co.,  188  Pa.  40,  41  Atl.  457.  And  see  Bar- 
nett  ▼.  Teadon  Borou^,  87  Pa.  Super.  Ot. 
97. 

[2]  Plaintiffs  claim  by  adverse  possession 
would  be  well  founded  as  against  private 
parties,  but  cannot  prevail  against  the  pub- 
lic, whose  rights  are  not  lost  by  encroach- 
ment, however  long  continued.  Common- 
wealth T.  Moorehead,  118  Pa.  344,  12  Atl. 
424,  4  Am.  St  Rep.  599;  McOuire  v.  Wilkes- 
Barre,  36  Pa.  Super.  Ct  418. 

[3]  It  scarcely  requires  the  citation  of  au- 
thorities to  support  the  proposition  that  a 
citizen  acquires  no  rights  as  against  the  pub- 
lic by  the  maintenance  of  a  fence  or  building 
in  a  highway,  and  the  same  rule  applies 
to  a  public  park.  The  acceptance  and  use 
by  the  public  of  the  Parade  in  question  as  a 


park  embraced  all  the  land  dedicated  for 
that  purpose,  although  some  parts  thereof 
along  the  border  lines  may  not  have  been 
actually  used  as  such.  It  is  like  a  dedicated 
street,  the  acceptance  of  which  c<»stitutes 
It  of  the  full  width,  although  only  the  trav- 
eled portion  may  be  used  by  the  public. 
See  State  Road,  236  Pa.  141,  84  AtL  686. 
The  disputed  land  being  In  the  Parade,  the 
fact  that  it  is  not  within  Sixth  avenue  as 
opened  on  the  ground  is  not  controlling. 

As  plaintiff's  lot  In  the  original  deed  was 
bounded  on  the  north  by  the  Parade,  be  la 
not  helped  by  the  fact  of  a  surplus  In  that 
block.  If  he  is  entitled  to  that,  or  any  part 
of  it,  he  must  find  it  within  the  lines  of 
the  block,  and  not  in  the  public  park  or 
street 

[4]  The  passage  of  the  ordinance  does 
not  estop  the  dty  from  claiming  the  land  In 
question ;  and  the  fact  that  the  proceedings 
thereunder  were  apparently  abandoned  would 
suggest  that  they  may  have  been  started  un- 
der a  misapprehension.  The  facts  found  by 
the  learned  chancellor  are  In  accordance 
with  the  evidence  and  his  legal  conclusions 
seem  to  be  entirely  accurate. 

The  assignments  of  error  are  overruled, 
and  the  decree  is  affirmed,  at  the  cost  of  the 
appellant. 

(iSr  Pa.  38S) 

BWALT  V.  DAVENHILL  et  aL 

(Supreme  Court   of   Pennsylvania.     April  18, 
1917.) 

1.  Tbttsts  *=»9  —  Spendthbut  Trust  — Ces- 

T0IS. 

A  spendthrift  trust  may  be  created  as  weQ 
for  a  woman  as  for  a  man. 

2.  Trusts  ©=9— Separati  Ubb  Tbusts— Va- 
UDmr. 

A  testator,  dyiog  in  1849  devited  land  to  his 
son  J.  for  life,  with  remainder  in  trust  for  J.'s 
children  and  their  heirs,  and  gave  J.  power  to 
revoke  such  trusts  by  will  and  to  create  other 
trusts;  and  J.,  dying  in  1870,  by  will  revoked  all 
such  trusts,  and  devised  the  estate  in  trust  to 
pay  an  annuity  to  his  wife  and  the  balance  of 
the  income  to  his  son  W.,  bom  in  the  lifetime 
of  his  grandfather^  and  on  his  death  the  bal- 
ance in  trust  for  his  children  in  such  shares  as 
they  would  be  entitled  to  if  he  had  died  intes- 
tate, and  gave  W.  power  to  appoint  the  shares 
of  his  children  in  trust  for  the  sole  and  sepa- 
rate use  of  such  children  and  to  the  issue  of  any 
deceased  child ;  and  W.,  dyin?  in  1877,  direct- 
ed that  the  share  of  each  of  bis  three  dan^hters 
be  held  in  trust  for  them  until  they  reached  21, 
and  created  sole  and  separate  use  trusts  and 
spendthrift  trusts  for  them,  and  directed  that 
on  the  death  of  any  daughter  ber  share  should 
be  paid  to  her  issue  during  the  life  of  the  sur- 
viving daughters,  and  if  there  was  no  issue  then 
to  the  survivors  for  life,  and  on  the  death  of 
the  last  survivor  then  to  their  issue.  Held,  that 
the  sole  and  separate  use  trusts  were  void,  be- 
cause the  daughters  were  not  married  or  in*con- 
templation  of  marriage  at  the  time  of  the  crea- 
tion of  such  trusts. 

3.  Powers  ©=36(1)  —  Constuuction  — Crea- 
tion OF  Spendthrift  Trusts. 

Such  spendthrift  trusts  for  the  daughters 
of  the  last  testator  were  within  the  scope  of  the 
power  of  appointment  conferred  upon  him  by 
the  will  of  his  deceased  father. 


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EWALT  V.  DAVENHIIX 


757 


4.  Wiixs  9=9634(9)— Vkstbd  IirrxBESTS— Tnoe 

or  Vesting. 
The  interests  of  such  laat  testator's  three 
daughters  vested  apon  the  death  of  their  grand- 
father, the  creator  of  the  power. 
6.  PiEPETorriEs     ®=a4(15)— Kemaindbbs— Va- 

uprrr. 
Such  gift  to  the  iscue  of  the  daughters  of 
the  last  testator  violated  the  rule  against  per- 
petuities. 

6.  PEBFBTUITIEa  <t=>4(22)— PAJtTIAI.  Ihtaudi- 

TT— Severabm  Gitt. 
The  gifts  for  the  lires  of  such  last  testa- 
tor's daughters  were  severable,  and  were  not  af- 
fected by  the  invalidity  of  a  gift  of  the  remain- 
ders to  their  issue. 

7.  Tbtjsts  «=»52— Pabtial  Invaijditt— Gnr 
O  ve  b— Ef  ^ect* 

Where  an  active  tmst  is  created  to  pay  the 
income  to  onu  for  life,  it  will  not  be  defeated 
because  of  the  failure  or  invalidity  of  the  gift 
over  of  the  corpus  of  the  estate. 

&  PEBPBTUmES  ®=»4(3) — NATlTBa  OF  RlTLE. 

The  rule  against  perpetultiea  is  directed 
acainst  future  contingent  estatea,  and  has  no 
reference  to  vested  estates. 

Appeal  from  Court  of  Ck>inmo&  Pleaa,  Phil- 
adelphia County. 

Bill  In  equity  for  partition  by  Henry  C. 
Btwalt  against  Catharine  M.  UarenbiU  and 
otbers.  Bill  dismissed  on  demurrer,  and 
plaintiff  appeals.    Decree  afBrmed.        

Argued  before  BEOWN,  O.  J.,  and  STBIW- 
ART,  MOSCHZISKBR,  FRAZEIBi,  and  WAL- 
LINU,  JJ. 

M.  T.  McManua,  of  Philadelphia,  for  appel- 
lant Henry  Preston  Erdman,  of  Philadel- 
phia, for  appellees. 

WAliUNQ,  J.  This  case  Involves  the  ques- 
tion as  to  whether  certain  real  estate  situate 
on  the  southeast  comer  of  Seventh  and  Chest- 
nut streets,  Philadelphia,  is  now  so  held  in 
trust  as  to  prevent  its  partition.  This  land 
was  formerly  owned  by  William  Swalm,  Sr., 
who  died  In  1846,  and  by  his  last  will  devised 
the  property  In  trust  for  his  son  James  for 
life,  and  then  In  tmst  for  the  latter's  chil- 
dren and  their  heirs,  giving  James  power, 
however,  to  revoke  by  will  all  trusts  and  in- 
terests expressed  by  the  testator,  and  to  di- 
rect or  to  appoint  such  new  or  other  trusts 
with  respect  to  said  property  as  to  him  might 
seem  proper.  James  Swalm  died  in  1870, 
leaving  a  last  will  In  which  he  referred  to 
the  power  given  him  In  his  father's  will,  and 
In  execution  thereof  revoked  all  the  trusts 
and  Interests  so  created  by  his  father,  and 
devised  the  estate  in  trust  to  pay  an  annuity 
t»  his  wife  for  life  and  balance  of  the  net  in- 
come to  his  son  William  Swalm,  Jr.,  free 
from  the  control  of  his  creditors,  and  provid- 
ed, further,  that  after  the  son's  death  the 
prc^>erty  should  be  held  "in  trust  for  the 
children  of  the  said  William  Swalm  and  the 
issue  of  such  as  may  be  deceased.  In  such 
parts,  shares  and  proportions,  and  for  such 
estates  as  they  would  be  entitled  to,  if  the 
said  William  Swalm  had  died  intestate." 
William  Swalm,  Jr.,  was  then  given  the  pow- 


er by  will  to  appoint  the  shares  of  his  chil- 
dren or  of  the  children  of  any  deceased  child 
to  trustees,  "in  trust  for  the  sole  and  sepa- 
rate use  of  said  dilld  or  Issue  of  said  de- 
ceased child,  and  under  such  limitations  and 
restrictions  as  in  his  discretion  he  may  deem 
best,  so  as  to  secure  the  same  to  the  said 
child  or  Issue  of  deceased  child,  for  his,  her 
or  their  sole  and  separate  use,  maintenance 
and  enjoyment" 

WiUiam  Swalm,  Jr.,  died  in  1877,  testate, 
and  left  surviving  him  three  daughters,  who 
at  the  time  of  tlie  execution  of  his  will  were 
minors,  unmarried,  and  not  in  contemplation 
of  marriage,  although  they  did  subsequently 
marry,  and  two  of  them  are  still  living. 
In  his  will,  William  Swalm,  Jr.,  pursuant 
to  the  power  vested  in  him  under  the  will  of 
hJs  father,  directed  that  the  share  of  each 
of  his  children,  or  the  diildren  of  any  de- 
ceased child,  be  held  in  trust  for  them  until 
they  readied  the  age  of  21  years,  "and  as 
and  after  each  of  my  said  dilldren  respective- 
ly arrive  at  the  age  of  twenty-one  years,  to 
pay  her  said  part  and  share  of  the  said  rents. 
Issues,  profits,  Income,  and  dividends  to  her 
directly  whether  she  be  covert  or  sole,  dur- 
ing all  the  period  of  her  natural  life,  for  her 
separate  use  and  benefit,  the  said  Income 
to  be  and  at  all  times  to  remain  free  and  ex- 
empt from  the  power  and  control  of  any 
husband,  and  from  liabilities  for  any  debts 
or  engagements.  The  receipts  of  my  children 
for  such  payments  to  them,  whether  covert 
or  sole,  shall  be  deemed  and  taken  to  be  good 
and  sufficient  vouchers  and  acquittances  for 
the  said  trustees  or  either  of  them,  in  the 
settlement  of  their  accounts."  The  will  also 
provided  that.  In  the  event  of  the  death  of 
any  of  the  children,  her  share  should  be 
paid  to  her  issue  during  the  life  of  the  sur- 
viving children,  or  in  case  there  should  be 
no  Issue,  then  to  the  survivors  for  life,  and, 
upon  the  death  of  the  last  survivor  of  the 
children,  then  to  their  issue,  or.  If  no  issue, 
then  to  the  persons  who  would  be  entitled  un- 
der the  provisions  of  his  father's  will.  Wil- 
liam Swalm,  Jr.,  was  bom  before  the  death 
of  his  grandfather. 

Plaintift  is  the  owner  by  purchase  of  the 
Interest  of  one  of  the  daughters  of  William 
Swalm,  Jr.,  in  the  premises,  and  as  such 
filed  his  bill  for  partition  la  this  case ;  and 
from  the  decree  of  the  court  below,  sustain- 
ing defendants'  demurrer  and  dismissing  the 
bill,  this  appeal  was  taken. 

The  action  of  the  court  below  was  based 
upon  the  construction  previously  placed  upon 
the  wills  in  question  by  the  orphans'  court  of 
said  county,  where  the  questions  were  ex- 
haustively and  ably  considered,  and  in  our 
opinion  correctly  decided.  The  trusts  creat- 
ed by  the  last  will  of  James  Swalm  were  un- 
questionably valid  as  a  due  execution  of  the 
power  contained  In  the  will  of  his  father, 
and  created  a  spendthrift  trust  for  the  life 


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101  AZriiANTIO  BBPORTBB 


(Fa. 


of  WUIlam  Swalm,  Jr.,  with  remainder  o^er 
as  therein  provided.  The  real  question  is  as 
to  the  effect  of  the  trust  provisions  in  the 
will  of  WlUlam  Swalm,  Jr.  So  far  as  making 
a  testamentary  disposition  of  the  property, 
James  Swalm  was  practically  the  owner  in 
fee;  and  the  testamentary  trusts  so  created 
and  powers  so  conferred  by  him  must  be 
given  effect. 

[1]  A  careful  reading  of  his  will  shows 
tbat  he  conferred  upon  William  Swadm,  Jr., 
a  power  sufficiently  broad  to  enable  the  latter 
to  create  for  his  clilldrea  a  spendthrift  trust, 
as  well  as  a  separate  use  trust  True,  when 
the  will  of  James  Swalm  was  executed,  the 
children  of  William  Swalm,  Jr.,  consisted  of 
three  daughters,  yet  there  was  nothing  to 
Indicate  that  sons  might  not  thereafter  be 
bom  to  him.  The  words  of  the  will  above 
quoted,  empowering  his  son  WlUlam  by  his 
last  will  to  place  such  property  "In  trust  for 
the  sole  and  separate  use  of  said  child  or 
issue  of  said  deceased  child,  and  under  such 
limitations  and  restrictions  as  in  his  discre- 
tion he  may  deem  ibest,  so  as  to  secure  the 
same  to  the  said  child  or  issue  of  deceased 
child,  for  his,  her,  or  thdr  sole  and  separate 
use,  maintenance  and  enjoyment,"  seem  to 
Indicate  an  intent  to  authorize  the  creation 
of  both  separate  use  and  spendthrift  trusts. 
And  William  Swalm,  Jr.,  fully  executed  such 
power  in  his  last  will  as  above  quoted.  A 
spendthrift  trust  may  be  created  as  well  for 
a  woman  as  for  a  man.  Ashburst's  Appeal, 
77  Pa.  464;  Hugbes-Hallett  v.  Hn«hes-Hal- 
lett,  152  Pa.  590,  594,  26  Ati.  101. 

[2]  While  the  separate  use  trusts  were  In- 
effective, because  the  daughters  were  neither 
married  nor  in  contemplation  of  marriage, 
yet  by  said  wills  spendthrift  trusts  were 
created  in  favor  of  the  daughters  of  William 
Swalm,  Jr.,  and  valid  during  their  lives.  No 
set  form  of  words  is  necessary  to  the  creation 
of  a  spendthrift  trust.  Oraeff  v.  De  Turk, 
44  Pa.  527,  531;  Winthrop  Co,  ▼.  Clinton, 
196  Pa.  472,  46  Atl.  435,  79  Am.  St  Rep.  729. 
See,  also,  Shower's  Estate,  211  Pa.  297,  60 
AtL  7S9;  Dunn  ft  Blddle's  Appeal,  85  Pa. 
M. 

[3-6]  So  far  as  creating  a  trust  for  his  own 
children,  or  for  the  issue  of  any  of  his  chil- 
dren who  may  have  died  in  his  lifetime,  Wil- 
liam Swalm,  Jr.,  was  aoting  within  the 
powers  conferred  upon  him  by  the  will  of 
his  father ;  but  he  went  further,  and  attempt- 
ed to  continue  thi  trust  for  various  uses  and 
purposes  for  an  Indefinite  time  beyond  the 
lives  in  being  at  his  death.  To  that  extent 
the  trust  so  created  in  invalid,  as  transgress- 
ing the  rule  against  perpetuities,  and  because 
no  such  power  was  vested  in  him  by  the  will 
of  James  Swalm.  However,  the  trust  so  des- 
ignated in  the  will  of  WilUam  Swalm,  Jr.,  Is 
severable,  so  tbat  the  trust  created  for  his 
children  may  stand,  and  that  attempted  to 
be  created  for  others  beyond  fail.  Whit- 
man's Estate,  248  Pa.  285,  98  AtL  1062. 


[7]  Where  an  active  trust  is  (seated  to 
pay  the  income  to  one  for  life,  it  will  not  be 
defeated  because  of  the  failure  or  invalidity 
of  the  gift  over  of  the  corpus  of  the  estate. 
On  tbe  death  of  WllUam  Swalm,  Jr.,  the  Utle 
to  the  property  In  question  vested  in  bis 
children  as  devisees  under  the  will  of  their 
grandfather,  James  Swalm,  but  their  eojoy- 
ment  thereof  was  subject  to  the  trust  created 
by  their  father's  will. 

[I]  The  rule  against  perpetuities  is  directed 
against  future  contingent  interests  and  has 
no  reference  to  vested  estates:  Johnston's 
£>st,  185  Pa.  179,  39  AtL  879,  64  Am.  St  Bep. 
621.  As  the  children's  estate  vested  on  tbelr 
father's  death,  and  aa  be  was  in  being  at  tbe 
death  of  William  Swalm,  Sr.,  so  far  as  con- 
cerns them  the  rule  against  perpetuities  has 
not  been  violated.  It  is  the  vesting  of  tiie 
estate  within  tbe  life  in  being  and  21  years 
thereafter  that  fixes  its  status.  The  fact 
that  when  vested,  it  may  continue  beyond 
that  period,  is  not  materiaL  And  ctHnpntlng 
the  time  from  the  creation  of  tlie  power  by 
the  will  of  James  Swalm,  it  is  still  more  ap- 
parent tbat  the  rule  baa  not  been  transgress- 
ed. In  our  opinion  the  will  of  William 
Swalm,  Jr.,  creates  an  active  trust  during 
the  lives  of  his  daughters,  and  the  real  estate 
embraced  therein  cannot  now  be  partitioned. 

The  assignment  of  error  Is  overruled,  and 
the  decree  is  affirmed,  at  the  cost  of  appellant 


(B7  Vk.  468) 

In  re  PC^CTEB'S  ESTATBL 

Appeal  of  HALLSTEAD. 

(Supreme   Court  of  Pennsylvania.     April  16, 
1917.) 

1.  Wixxs  4(=>452—DisiNBXBiTANCB— Intent. 

Every  doubt  must  be  resolved  in  favor  of 
the  heir  at  law,  who  cannot  be  disinherited  ex- 
cept by  express  words  or  by  aeceasaiy  impli- 
cation. 

2.  WiLi«  o-iliO   PaEBTJMPTioit  AoAnnrr  Ir- 

TESTAOT. 

The  presumption  is  that  a  testatrix  intend- 
ed to  dispose  of  her  residuary  estate. 

3.  Wills  «=>509— Bxtocation  or  BxatDVUX 

Cla  UBS— EirFBOT. 

The  revocation  by  codicil  of  a  residuatr 
clause  in  favor  of  a  legatee,  effecting  a  gift  over 
to  the  next  of  kin  of  the  testatrix,  did  not  pre- 
clude such  legatee  from  sharing  in  the  gift  to 
the  next  of  km  of  which  be  was  one,  where  be 
was  not  excluded  by  express  language  or  1)7 
neceasary   implication. 

Appeal  from  Orphans'  Court,  Lackawanna 
County. 

Appeal  by  Jesse  Wilkins  Hallstead,  by  his 
mother  and  next  friend,  Maud  Hallstead, 
from  a  decree  dismissing  exceptions  to  adju- 
dication in  the  estate  of  Lucy  A.  Potter,  de- 
ceased. Reversed,  and  record  remitted  to  the 
court  below  for  distribution  of  estate. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZER,  and  WAL- 
LING. JJ. 


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IN  RE  POTTER'S  ESTATB 


759 


J.  E.  Sl<^Ier  and  H.  D.  Oarey,  both  of 
Scranton,  for  appellant  W.  L.  Scbanz  and 
O.  B.  Gardnec,  both  of  Scnmton,  for  ap- 
pellee. 

WALLING,  3.  Lucy  A.  Potter  made  ber 
will  in  1906,  and  In  the  eighth  and  ninth 
paragraphs  gave  her  nephew,  Erwln  M.  Hall- 
stead,  certain  furniture  and  household  ef- 
fects, and  the  fourteenth  paragraph  thereof 
is: 

"Fonrteentb.  I  order  and  direct  that  after  the 
payment  of  all  debts,  legacies,  expenses  and 
charges  hereia  mentioned,  the  money  arising 
from  my  estate  shall  be  safely  invested  by  my 
cxecntor  in  banlc  or  real  estate  secarities,  and 
the  income  therefrom  paid  only  annually  to  my 
said  nephew,  Erwin  M.  Hallatead,  during  the 
term  of  his  natural  life.  Should  the  said  Er- 
win M.  Hallstead  die  leaving  children,  all  my 
remaining  estate  shall  go  to  said  children,  ab- 
solutely, share  and  share  alike,  and  should  he 
die  leaving  one  child  to  survive  him,  then  all 
the  said  estate  to  go  to  said  child  absolutely. 
Bat  sbonld  the  said  Erwin  M.  Hallstead  die 
wiUiout  leaving  any  child  to  survive  him,  then 
all  toy  said  remaining  property,  and  estate  is 
to  go  to,  and  bo  divided  amongst  my  next  of 
kin  in  accordance  with  the  intestate  laws  of  the 
state  of  Pennsylvania,  in  same  manner  as  thongh 
I  had  not  made  any  will,  except  that  my  broth- 
er, C.  W.  Moredock,  shall  not  participate  in  said 
distribution,  or  receive  any  part  of  my  estate, 
as  I  feel  that  I  have  already  helped  him  in 
Tarions  ways  to  as  mach  as  be  wonld  be  fairly 
entitled  to  receive." 

Mr.  Hallstead  was  married  In  1907,  and 
^ed  in  1912,  leaving  a  posthumous  cbild, 
Jesse  Wilklna  Hallstead,  the  appellant  In 
1914  Mrs.  Potter  made  a  codicil  to  said  will, 
which  Is,  Inter  alia,  aa  follows: 

"First  My  nephew,  Erwin  M.  Hallstead,  hav- 
ing died  since  said  will  was  executed,  I  hereby 
revoke  aU  portions  of  the  eighth,  ninth  and  four- 
teenth paragrapbs'  of  said  will,  by  which  any 
property,  or  the  use  thereof  was  given  or  be- 

Sneatbed  to  said  Erwin  M.  Hallstead,  or  to  his 
bildren  or  child  should  any  survive  him.  •   •   • 
"Ninth.  All  the  terms  and  conditions  of  said 
wlU  are  to  bo  and  remain  in  full  force  except 
aa  revoked  or  modified  by  this  codicil." 

Testatrix  died  childless  shortly  after  the 
execution  of  the  codidl,  leaving  as  her  next 
of  kin  her  said  brother,  now  deceased,  two 
nieces,  daughters  of  a  deceased  sister  of  tes- 
tatrix, and  appellant  the  grandson  and  only 
Uneal  descendant  of  another  deceased  sister. 

f1]  Mrs.  Potter's  executor  filed  an  account 
•bowing  a  fund  for  distribution,  no  claim  to 
wtdCh  was  made  on  behalf  of  the  brother  or 
Ills  children ;  and  from  a  decree  of  the  or- 
phans' court  awarding  'same  to  the  two 
nieces,  to  the  exclusion  of  appellant  this  ap- 
peal was  taken  on  his  behalf.  Admittedly, 
as  between  him  and  the  nieces,  he  is  en- 
titled to  one-half  of  the  fund,  unless  exclud- 
ed therefrom  by  the  terms  of  the  will  and 
-codidl.  After  a  careful  examination,  we  are 
of  the  opinion  that  there  is  no  such  exclu- 
sion, and  that  appellant  as  next  of  kin  Is  en- 
titled to  share  In  the  distribution  in  accord- 
ance with  the  Intestate  laws.  Every  doubt 
must  be  resolved  In  favor  of  the  heir  at  law, 
who  cannot  be  disinherited  excej^t  by  express 


words  or  necessary  implication.  Bender  ▼. 
Dletri(^,  7  Watts  &  S.  2^;  Brendlinger  t. 
Brendlinger,  26  Pa.  131;  France's  Estate,  75 
Pa.  220;  Bruckman's  Estate,  195  Pa.  S63,  45 
AU.  1078. 

[2, 3]  The  presiunptlon  is  that  testatrix  in- 
tended to  dispose  of  ber  residuary  estate, 
and  construing  together  the  will  and  codidl, 
it  may  fairly  be  determined  that  she  did  so. 
The  original  residuary  bequ^rt;  to  Mr.  Hall- 
stead and  his  child  contained  in  the  will  was 
revoked  by  the  codidl,  and  thereupon  the 
alternative  residuary  bequest  to  the  next  of 
kin  took  efTect.  This  thought  is  emphasized 
by  paragraph  9  of  the  codidl,  wherein  testa- 
trix expressly  continues  in  full  force  all  of 
the  terms  of  the  will  except  as  revoked  or 
modified.  Now  the  codidl  revoked  all  por- 
tions of  paragraph  14  of  the  will,  by  which 
any  property  was  given  or  bequeathed  to  Mr. 
Hallstead  dr  to  his  surviving  child,  which  re- 
voked all  of  the  paragraph  down  to  and  in- 
cluding the  words  "then  all  ot  said  estate  to 
go  to  said  child  absolutely,"  and  thereby  he 
was  deprived  of  the  bequest  as  sole  resid- 
uary legatee.  But  only  so  mudi  of  the  para- 
graph was  revoked  as  gave  something  to 
Hallstead  or  his  child.  The  original  will 
gave  them  nothing  as  next  of  kin ;  for  by  Its 
express  terms  nothing  was  given  to  the  next 
of  kin  until  after  the  death  of  both  Hall- 
stead and  his  child.  The  codidl  by  its  terms 
revoked  only  what  had  been  given  In  the 
vrill,  and  did  not  attempt  to  revoke  the  rights 
of  the  next  of  kin,  which  arose  by  virtue  of 
the  codidl  Itself  and  had  no  prior  existence. 
She  did  not  revoke  that  which  had  no  exist- 
ence until  after  the  revocation.  Whatever 
rights  the  next  of  kin  have  as  residuary  leg- 
atees had  their  inception  in  the  codidl,  be- 
cause the  will  gave  them  nothing  as  such 
except  upon  a  condition  that  never  occurred, 
to -wit,  the  death  of  Hallstead  and  bis  child 
during  the  life  of  testatrix.  But  the  codidl 
was  a  republlcat,lon  of  the  will  as  modified, 
and  thereby  the  residuary  estate  was  given 
to  all  the  next  of  kin  as  they  would  have 
taken  under  the  intestate  laws,  with  the 
single  exception  that  the  brother  was  ex- 
cluded therefrom.  At  the  time  of  such  re- 
publication Mrs.  Potter  undoubtedly  Imew 
that  appellant  was  one  of  her  next  ot  kin, 
and  had  she  desired  to  exdude  liim  could 
have  so  stated,  or,  had  she  then  intended  to 
give  all  of  her  residuary  estate  to  the  two 
nieces,  that  could  have  been  stated  in  the 
oodldL  Bnt  the  mere  fact  that  testatrix  re- 
voked the  clause  making  appellant  sole  lega- 
tee, withotit  more,  does  not  preclude  him 
from  sharing  in  the  gift  to  the  next  of  kin 
of  which  he  is  one.  Construing  the  will  and 
codidl  by  the  language  used,  we  find  nothing 
to  prevent  appellant  from  so  sharing.  He 
is  excluded  neither  by  express  language  nor 
by  necessary  implication:  In  fact,  as  the  ex- 
press e.\clusion  Includes  the  brother  only,  the 
implication  would  be  the  other  way,  as  Tt 


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also  would  because  of  the  fact  that  the  resid- 
uary estate  is  giren  to  the  next  of  kin  as  a 
class  and  not  to  any  particular  individuals. 
Because  Mrs.  Potter  did  not  desire  appellant 
to  have  the  entire  residuary  estate  does  not 
(flange  his  status  as  next  of  kin  or  deprive 
him  of  the  right  to  share  with  the  others  as 
such.  See  Hitchcock  t.  Hitchcock,  35  Pa. 
393;  Wain's  Estate,  Vaux's  Appeal,  156  Pa. 
194,  27  Atl.  59;  Oorgas's  Estate,  Robinson's 
Appeal,  166  Pa.  269,  31  Atl.  86;  FuUer-s  Es- 
tate, 225  Pa.  626,  74  AU.  623. 

The  cases  above  cited  seem  to  support  our 
conclusion  although  no  two  wills  are  exactly 
alike. 

McGovran's  Estate,  190  Pa.  375, 42  AU.  705, 
relied  on  by  the  court  below.  Is  not  in  point, 
except  as  applicable  to  the  brother.  There 
the  residuary  bequest  was,  "The  rest  and 
residue  of  my  estate  I  direct  to  be  distribut- 
ed by  my  executor  hereinafter  named  under 
the  Intestate  laws  of  Pennsylvania,  but  in  no 
event  is  Mrs.  Murdock,  widow  of  Campbell 
Murdock,  or  her  three  children,  and  Mrs. 
Kate  Johnson,  or  her  two  children,  to  receive 
any  portion  of  my  estate  in  any  shape  or 
form,"  and  it  was  held  that  those  so  express- 
ly excluded  were  not  entitled  to  share  in  the 
distribution;  whereas  in  our  case  there  is  no 
express  exclusion  of  appellant 

The  assignments  of  error  are  sustained, 
the  decree  is  reversed  at  the  cost  of  appel- 
lees, and  the  record  is  remitted  to  the  court 
below  that  distribution  may  be  made  in  ac- 
cordance with  this  opini(»i. 

(2BJ  Pa.  849)  ' 

O.  a  GAWTHROP  CO.  t.  PIBRB  SPE- 
CIALTY CO.  et  al. 

(Supreme    Court    of   Pennsylvania.      AprQ    9, 
1917.) 

1.  ASSIONUKNTB    FOB    BENEITr    OT    CbBDITOIIS 

«=»298— Rights  of  Creditors— Tike. 
The  rights  of  creditors  are  fixed  as  of  the 
date  of  an  assignmeiit  for  the  benefit  of  credi- 
tors. 

2.  PamciPAi.  AND  SuBETT  ^=>194(1)  —  Con- 
tribution—CtAiH  OF  COBITBXTT. 

Except  as  to  the  right  and  property  con- 
nected  with   the   transaction,    the  claim   of   a 
cosurety  for  contribution  is  no  higher  than  that 
of  any  other  claim. 
8.  SUBBOOATION  «=»1— Gbotjnds— EquiTT. 

Subrogation,  which  is  founded  upon  equity, 
wQI  never  be  granted  to  the  prejudice  of  other 
rights  of  equal  or  higher  rank. 

4.  ASSIONHEKTB    FOB    BENEFIT    OF    CbKDITOBS 

«=>298— Claims— Equities. 
Claims  against  an  insolvent  estate  existing 
at  the  date  of  an  assignment  for  the  benefit  of 
creditors  are  at  least  as  strong  in  equity  as  a 
claim  thereafter  arising,  even  though  the  ob- 
ligation out  of  which  it  arose  antedated  the  as- 
signment. 

6.  SUBROOATION  «=»21— PAYMENT— GROUNDS. 

It  is  not  a  liability  to  pay,  but  an  actual 
payment  to  the  creditor,  which  raises  the  equi- 
table right  to  be  subrogated  to  his  remedies. 
6.  Assignments  for  Benefit  of  Creditors 
^=3215 — Status  of  Assionbe. 

An  assignee  for  the  benefit  of  creditors 
stands  in  the  place  of  the  assignor. 


7.  COBPORATIONS  «=356e(l)  —  IHBOI.VKNCT  - 

Rights  as  Between  Subxties  —  General 

Creditor. 
A  surety  on  the  bond  of  the  treasurer  of 
the  corporation  loaned  $5,000  to  the  corpora- 
tion on  its  note,  and  Eubsequently  made  an  as- 
signment of  his  property,  including  the  note,  to 
a  trustee  for  the  benefit  of  his  creditors,  and 
the  estate  of  a  cosurety  paid  the  corporation 
the  amount  of  the  treasurer's  default  and  claim- 
ed subrogation  to  the  rights  of  the  first  surety 
for  the  amount  of  the  dividend  awarded  him 
against  the  corporation  in  receivership,  in  pref- 
erence to  hie  general  creditors  whose  claim* 
arose  before  the  treasurer's  default  Held,  that 
the  estate  was  only  a  general  creditor. 

8.  Appeai,  and  Ebbob  €=>1170(12)— Decree 
ON  Exceptions  to  Auditob's  Report— R& 
versau 

Where  the  lower  court's  decree  sustains  ex- 
ceptions to  an  auditor's  report,  and  the  con- 
trolling exceptions  are  well  taken,  and  the  decree 
is  properly  entered,  it  Will  not  be  reversed  be- 
cause it  apparently  su^^tains  some  minor  excep- 
tions not  well  founded,  nor  because  of  minor 
inaccuracies  in  the  opinion  filed  with  the  decree. 

Appeal  from  Court  of  (Tommon  Pleas,  Ches- 
ter County. 

Proceeding  by  the  C  6.  Gawthrop  Com- 
pany against  the  Fibre  Specialty  Company, 
George  W.  Taft  president  and  J.  W.  Braln- 
ard,  secretary.  E^rom  a  decree  sustaining 
exceptions  to  the  auditor's  report  and  direct- 
ing the  disposition  of  dividends,  D.  Duer 
Philips  and  others,  executors  of  James  M. 
Worrall,  deceased,  appeal.    Affirmed. 

Argued  before  BROWN,  G.  J.,  and  MES- 
TREZAT,  STEWART,  MOSOHZISKBR,  and 
WALI.ING,  JJ. 

Isabel  Darlington  and  Thomas  S.  Butler, 
both  of  West  Chester,  for  appellants.  A.  H. 
Holding,  of  West  Chester,  for  appellee. 

WALLING,  J.  This  is  a  question  of  dis- 
tribution In  an  Insolvent  estate.  On  April 
28,  1913,  receivers  were  appointed  for  the 
Fibre  Specialty  Company,  a  corporation. 
Prior  thereto,  on  July  23,  1912,  the  company 
for  value  gave  George  W.  Taft  a  demand 
note  for  $5,000.  J.  W.  Bralnard  was  of- 
ficial treasurer  of  the  company,  and  in  1903 
gave  a  bond  in  $5,000,  with  Taft  and  James 
M.  Worrall  (now  deceased)  as  sureties,  condi- 
tioned for  the  faithful  performance  of  his 
duties  as  such  treasurer.  June  26,  1913,  Mr. 
Taft  made  an  assignment  of  bis  estate,  spe- 
dflcally  Including  the  $5,000  note,  to  Harry 
W.  Chalfant,  for  benefit  of  creditors.  In 
1914  the  receivers  filed  an  account  and  an 
auditor  was  appointed  to  make  distribution 
thereof,  to  whom  the  Taft  note  was  present- 
ed by  the  assignee,  and  a  dividend  amount- 
ing to  $2,157.15  awarded  thereon.  Mr.  Braln- 
ard, while  treasurer  of  the  company,  made 
default,  by  reason  of  which  the  receivers 
brought  suit  against  him  and  his  sureties  on 
the  bond  in  the  court  of  common  pleas  of 
Chester  county,  at  the  January  term,  1915, 
and  recovered  a  verdict  for  $3,809.02,  on 
which  Judgment  was  entered,  and  afflmieil 
by  this  court  in  case  of  Marshall  v.  Braioenl 


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SCHUTLKILL  COUNTY  v.  WIEST 


761 


253  Pa.  35,  97  AtL  1057.  Bralnard  and  Taft 
being  Insolvent,  this  Judgment  was,  on  April 
20,  1916,  paid  by  appellants  as  executors  of 
James  M.  Worrall,  deceased,  to  whom  one- 
IiaU  ot  the  judgment  was  thereupon  assigned. 

After  tbe  award  of  the  dividend  to  Chal- 
fant  on  the  Taft  note,  the  claim  against 
Bralnard  and  his  sureties  on  the  bond  hav- 
ing been  brought  to  the  attention  of  the  court 
below,  it  was  there  ordered  that  the  dividend 
be  retained  by  the  receivers  until  the  final 
determination  of  the  action  on  the  bond, 
which  was  done.  The  receivers  in  a  subse- 
quent final  account  charged  themselves  with 
the  $2,157.15  dividend,  which  the  auditor 
thereafter  awarded  appellants  by  way  of 
contribution  from  Taft  as  their  cosurety. 
The  learned  court  below  sustained  exceptions 
to  the  auditor's  report,  and  by  final  decree 
ordered  the  dividend  paid  to  Ghalfant  on  the 
Taft  note ;  and  from  that  decree  this  appeal 
was  taken. 

The  $5,000  note  was  a  matter  entirely  sep- 
arate and  apart  from  the  treasurer's  bond, 
and  had  no  connection  with  Mr.  Bralnard  or 
his  account  with  the  company.  Appellants' 
right  to  contribution  or  subrogation  arose 
when  they  paid  the  Judgment.  Then  they 
were  equitably  entitled  to  an  assignment  of 
the  Judgment,  and  also  of  any  collateral  or 
other  property  held  by  the  receivers  to  se- 
cure the  payment  of  the  bond.  But  they 
were  not  entitled  to  the  dividend  awarded  to 
the  Taft  note,  as  that  was  an  entirely  sepa- 
rate matter.  The  note  was  a  part  of  Taft's 
general  estate,  and  appellants  had  no  special 
«qulty  in  that  Except  as  to  matters  connect- 
ed with  the  bond,  appellants  are  merely 
creditors  of  Taft  to  one-half  the  amount  they 
paid  on  account  of  the  surety  bond;  and  they 
only  became  such  creditors  when  they  paid 
the  Judgment  on  April  20,  lOlOw  Prior  to  that 
time  they  had  no  claim  against  Taft  See  8 
Modern  American  Law,  p.  224. 

[1-t]  It  Is  not  easy  to  see  how  appellants 
can  secure  preference  over  other  creditors 
whose  claims  were  in  existence  at  the  time 
Of  the  assignment,  for  as  a  general  rule  the 
rights  of  creditors  are  fixed  as  of  that  date. 
Sweatman's  Appeal,  150  Pa.  360,  24  AU.  617; 
Jamison  &  Go.'s  Assigned  £}state,  163  Pa.  143, 
29  Atl.  1001 ;  Potter  v.  Gilbert  177  Pa.  159, 
35  Atl.  597,  35  L.  R.  A.  580;  Chestnut  StreM 
Trust  &  Saving  Fund  Go.'8  Assigned  Estate, 
217  Pa.  151,  66  Atl.  332,  118  Am.  St  Kep.  909. 
Except  as  to  rights  and  property  connected 
with  the  transaction,  the  claim  of  a  cosurety 
for  contribution  is  no  higher  than  that  of 
any  other  claim;  and  subrogation,  which  is 
founded  upon  equity  and  benevolence,  will 
never  be  granted  to  the  prejudice  of  other 
rights '  of  equal  or  higher  rank.  Frltch  v. 
Citizens'  Bank,  191  Pa.  283,  43  Aa  394; 
Knoufs  Appeal,  91  Pa.  78;  Grand  Council 
of  Penna.  Boyal  Arcanum  v.  Cornelius,  198 
Pa.  46,  47  AtL  1124;    Shimp's  Assigned  Es- 


Ute,  197  Pa.  128,  46  Atl.  1037.  aaims 
against  an  insolvent  estate  which  were  in 
existence  at  date  of  the  assignment,  would 
seem  at  least  to  have  as  strong  an  equity  as 
one  thereafter  arising,  even  though  the  ob- 
ligation out  of  which  it  arose  antedated  the  as- 
signment "It  is  not  a  liability  to  pay,  but  ac- 
tual payment  to  the  creditor,  which  raises  the 
equitable  right  to  be  subrogated  to  his  reme- 
dies." Kyner  v.  Kyner,  6  Watts,  221;  Hoover 
V.  Epler,  52  Pa.  522;  Forest  Oil  Company's 
Appeals,  118  Pa.  138,  12  AU.  442,  4  Am.  St 
Rep.  584.  Subrogation  wUI  never  be  enfoiced 
to  defeat  a  superior  or  even  an  equal  equity. 
Bobeson's  Appeal,  U7  Pa.  633,  12  Atl.  61.  A 
case  quite  similar  to  this  in  principle  is  that 
of  Farmers'  &  Drovers'  Bank  v.  Sherley  et 
al.,  12  Bush  (75  Ky.)  304. 

[•,  7]  Creditors  of  Taft  acquired  no  special 
rights  because  of  the  transfer  of  the  note  to 
Chalfant,  as  an  assignee  for  b^ieflt  of  credi- 
tors stands  in  the  place  of  the  assignor  (Pot- 
ter V.  GUbert,  177  Pa.  159,  35  Atl.  597,  35 
Ll  B.  a.  580),  and  not  in  that  of  a  bona  fide 
holder  for  value.  In  Marshall  ▼.  Brainerd, 
supra,  it  Is  held  that  the  Taft  note  could  not 
be  interposed  as  a  set-oS  against  the  suit 
on  the  treasurer's  bond.  Whether  or  not 
such  bond  should  have  been  set  off  against 
the  claim  on  the  note  does  not  seem  now  im- 
portant; tn  any  event  It  was  not  so  used; 
and  the  real  question  here  Is  as  to  the  equita- 
ble rights  to  the  fund  in  question  between 
the  Worrall  estate  and  other  creditors  of 
Taft.  The  question  as  to  the  validity  of  the 
assignment  to  Ghalfant  la  not  before  the 
court  The  other  assignments  of  error  do  not 
seem  to  require  special  consideration. 

[S]  Where  the  lower  court  makes  a  gen- 
eral decree  sustaining  ^ceptions  to  an  audi- 
tor's report,  and  the  controlling  exceptions 
are  well  taken,  and  the  right  decree  is  en- 
tered, an  appellate  court  will  not  reverse  be- 
cause such  general  decree  seemingly  sustains 
some  minor  exceptions  that  were  not  well 
founded,  nor  because  of  minor  inaccuracies 
in  the  opinion  filed  with  the  decree.  How- 
ever, the  opinion  tn  this  case  indicates  a  cor- 
rect understanding  of  the  facts  and  legal 
principles  applicable  thereto. 

The  decree  is  affirmed,  at  the  costs  of  ap- 
pellants. 


(2R  Pa.  42S) 
SCHmLKIIiL    OOUNTT    v.    WIEST, 
County  Treasurer. 

(Supreme   Court   of  Pennsylvania.     April   16, 
1917.) 

1.  CotrNTTBS  <8=»72— OOTJNTY  Clbbk— Salabt 
—  OONSTITUTIONAI.  AND  SXATUTOBT  PBOVI- 
BI0N8. 

Const  art  14,  §  5,  providing  that  compen- 
sation of  coanty  officers  shall  be  regulated  by 
law,  and  that  county  officers  shall  pay  all  fees 
received  into  the  county  or  state  treasury  as 
directed  by  law,  and  Act  March  31,  1876  (P.  L. 
13)  §  1,  requiring  county  officers  to  receive  all 
fees  for   the   use  of  the  county,   except  Uiose 


tCSiWot  otbcr  i!naes  se«  nine  toplo  and  KBT-NUUBER  is  all  Ker-Numbered  Digest!  and  lnd«zw 


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101  ATLANTIC  RJEPOBTBB 


(Pa. 


levied  by  the  state  wUcIi  shall  be  payable  to  it, 
and  that  they  abaU  receive  no  fees  for  any  offi- 
cial services,  and  section  15,  declaring  the  salary 
of  such  officers  to  be  in  lieu  of  any  fees  and 
perquisites,  show  a  fixed  intention  to  confine 
salaried  county  officers  to  their  salary  as  com- 
pensation for  all  official  services. 
2.  Counties   ^s»80(2)— Countt  Tkeabubeb— 

Disposition  of  Fees— Constitutional  and 

Statutory  Pbovisions. 
Under  Const  art.  14,  {  5,  regulating  the  sal- 
ary of  county  treasurers  and  their  disposition 
of  fees  received  in  their  official  capacity,  and 
Act  March  31,  1876  (P.  It  13),  enacted  to  carry 
such  provision  in  effect  in  counties  containing 
over  150,000  inhabitants,  the  treasurer  of  such 
a  county  is  not  entitled  to  retain  the  fees  col- 
lected by  him  for  issuing  hunters'  licenses  under 
Act  April  17,  1913  (P.  L.  85),  but  is  required 
to  pay  them  into  the  county  treasury. 
8.  Officers  ®=»94— Gokfbnsation  tob  Sebt- 

ices— Presumption. 
The  presumption  is  that,   when  an  officer 
receives  money  for  services  rendered  in  his  of- 
ficial capacity,  it  is  as  compensation  for  the  per- 
formance of  duties  as  such  officer. 

Appeal  from  Court  of  Common  Pleas, 
Schuylkill  County. 

Assumpsit  for  money  bad  and  received 
by  the  County  of  Schuylkill  against  Fred  J. 
Wlest,  County  Treasurer.  Judgment  for 
plaintiff  on  the  case  stated,  and  defendant 
appeals.    AfSrmed. 

Argued  before  BEOWN,  C.  J.,  and  MES- 
TBEZAT,  POTTEai,  FRAZER,  and  WAL- 
IJNvi,  JJ. 

John  B.  McGurl,  of  MlnersvUle,  for  appel- 
lant Edmund  D.  Smith,  Sp.  Counsel,  C.  £3. 
Berger,  SoL  for  Controller,  and  C.  A.  Snyder, 
Co.  SoL,  all  of  PottsvUle,  for  appellee. 

MESTB£ZAT.  J.  This  la  an  action  of  as- 
■umptBlt  brought  by  the  county  of  Scbuylkill 
to  recover  fees  collected  by  the  defendant, 
as  county  treasurer,  for  banters'  licenses 
issued  by  blm  under  the  provisions  of  the 
act  of  April  17,  1913  (P.  L.  85).  The  treasur- 
er claims  that  the  fees  belong  to  him  per- 
sonally, and  that  he  is  entitled  to  retain  them 
tor  bis  own  use,  while  the  county  contends 
that  they  belong  to  it  and  must  be  accounted 
for  by  the  treasurer.  The  facts  were  agreed 
upon  by  the  parties  and  submitted  to  the 
court  in  a  case  stated.  The  court  was  of 
opinion  that  the  license  fees  collected  by  the 
treasurer  belong  to  the  county,  and  entered 
judgment  against  the  defendant  He  has 
taken  this  appeal. 

The  act  of  1913  was  passed,  as  Its  title 
shows,  for  the  better  protection  of  wild  birds 
and  game  within  the  state.  It  authorlEes 
the  county  treasurer  to  Issue  a  "resident 
hunter's  license"  granting  permission  to  bunt 
for  birds  and  game  within  the  state  and  pro- 
vides penalties  for  a  violation  of  Its  provi- 
sions. The  eighth  section  of  the  statute  en- 
acts as  follows: 

"Said  county  treasurers  are  herewith  author- 
ized to  retain  for  services  rendered  the  sum  of 
ten  cents  from  the  amount  paid  by  each  licensee, 
which    amount  shall   be  fuU   compensation    for 


services  rendered  by  him  in  each  easo  under  the 
provisions  of  this  act,  and  shall  remit  all  bal- 
ances arising  from  this  source,  at  least  once  a 
month,  to  the  state  treasurer,  for  the  purposes 
otherwise  provided  for  in  this  act" 

11]  The  county  of  Schoylklll  contains  over 
150.000  inhabitants,  and  therefore  is  within 
section  5,  art  14,  of  the  Constitution  of  Penn- 
sylvania, which  provides.  Inter  alia,  as  fol- 
lows: 

"The  compensation  of  county  officers  shall  be 
regulated  by  law,  and  all  county  officers  who 
are  or  may  be  salaried,  shall  pay  all  fees  wiiich 
they  may  be  autbori2ed  to  receive,  into  the 
treasury  of  the  county  or  state,  as  may  be  di- 
rected by  law.  In  counties  containing  over  one 
hundred  and  fifty  thousand  inhabitanlv,  all 
county  officers  shall  be  paid  by  salary." 

To  carry  into  effect  tills  provisi<Hi  of  the 
Constitution  the  Legislature  passed  the  act 
of  March  31,  1876  (P.  L.  13),  section  1  of 
which  provides  that  in  counties  containing 
over  150,000  inhabitants— 
"all  fees  limited  and  appointed  by  law  to  be  re- 
ceived by  each  and  every  county  officer  •  •  • 
or  which  thoy  shall  legally  be  authorized,  requir- 
ed or  entitled  to  charge  or  receive,  shall  belong 
to  the  county  in  and  for  which  they  are  sev- 
erally elected  or  api^inted;  and  it  shall  be  the 
duty  of  each  of  said  officers  to  exact  collect 
and  receive  all  such  fees  to  and  for  the  use  of 
their  respective  counties,  except  such  taxes  and 
fees  as  are  levied  for  the  state,  wliich  shall  be 
to  and  for  the  use  of  the  state;  and  none  of 
said  officers  shall  receive  for  his  own  use.  or  for 
any  use  or  purpose  whatever  except  for  the 
use  of  the  proper  county  or  for  the  state,  as  the 
case  may  be,  any  fees  for  any  official  services 
whatsoever." 

The  act  Axes  the  salary  of  the  treasurer 
and  other  county  officers,  and  then  provides 
in  section  15  as  follows: 

"Tho  salaries  fixed  and  provided  by  the  fore- 
going provisions  shall  be  In  lieu  of  all  or  any 
moneys,  fees,  perquisites  or  mileage  which  are 
now  or  may  hereafter  be  received  by  any  officer 
named  in  this  act;  and  all  said  moneys,  feea, 
mileage  or  perquisites,  received  by  any  of  them 
as  compensation,  fees  or  perquisites,  from  any 
source  whatever,  shall  in  all  cases  belong  to  the 
county,  and  shall  be  paid  into  the  treasury  (ex- 
cept where  required  to  be  paid  to  the  state),  as 
provided  in  this  act" 

We  think  there  is  no  dUBculty  in  sustain- 
ing tbe  Judgment  entered  for  ttie  plaintiff  t>j 
the  learned  court  below.  The  constitutional 
mandate  and  the  legislative  enactment  passed 
to  make  it  effective  are  so  explicit  that  tbey 
do  not  require  Judicial  construction.  In  fad, 
as  was  well  said  by  Judge  Thayer  in  Plerie 
V.  Philadelphia,  139  Pa.  573,  578,  21  AtL  90: 

"The  prohibition  of  the  receipt  of  fees  for 
their  own  use,  and  the  reflation  of  their  com- 
pensation by  fixed  salaries  exclusively,  could 
hardly  have  been  expressed  in  plainer  language 
than  that  which  is  written  in  the  ConstituticKi. 
It  is  impossible  for  any  ingenuity  to  prevail 
against  it.  There  is  nothing  left  for  conatruc- 
tion  or  interpretation.  It  mterprets  itself  as 
plainly  as  any  words  in  the  English  language 
can  do  so,  and  there  is  no  hook  upon  which  to 
hang  a  query  or  a  doubt" 

In  making  this  assertion  we  are  nut  un- 
mindful of  the  several  attempts  made  by 
county  officers,  as  disclosed  by  the  numerous 


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Pa.) 


SCHUYIiKILIi  COUNTY  t.  WIBST 


763 


rases  In  this  court,  to  defeat  the  eonstltatlon- 
al  and  statutory  enactments  by  appropriat- 
ing to  their  use  fees  received  in  their  official 
capacity.  This  provision  of  the  Constitu- 
tion has  never  been  satisfactory  to  county 
offidala,  who,  by  the  assistance  of  able  and 
ingenious  counsel,  have  omitted  no  oppor- 
tunity to  evade  its  mandatory  provisions. 

An  analysis  of  the  enactments,  constitution- 
al and  legislative,  will  clearly  show  the  fix- 
«d  intention  to  confine  a  salaried  county  of- 
ficer to  bis  salary  as  compensation  for  all 
services  rendered  in  his  official  capacity.  The 
Gonstltutloa  declares  that  he  "Shall  pay  all 
fees"  which  he  may  be  authorized  to  receive 
into  the  treasury  of  the  county  or  stata  The 
first  section  of  the  act  of  1876  provides  that 
"all  fees  limited  anJd  appointed  by  law"  to  be 
received  by  count?  officers  shall  be  received 
"to  and  for  the  use  of  their  respective  coun- 
ties," and  declares  that  "none  of  said  [county] 
officers  shall  receive  for  his  own  use,  or  for 
any  use  or  purpose  whatever  except  for  the 
use  of  the  proper  county  or  for  the  state, 
*  *  *  any  fees  for  any  official  servioes 
whatsoever."  Section  16  seeks  to  emphasize, 
If  it  can  be  made  more  emphatic,  the  pro- 
vision of  section  1  by  declaring  that  salaries 
fixed  by  the  act  "shall  be  in  lieu  of  all  or  any 
moneys,  fees,  perquisites  or  mileage,  which 
are  now  or  may  hereafter  bo  received  by  any 
officer;  •  •  •  and  aU  said  moneys  •  •  • 
received  by  any  of  them  as  comi>ensatloa, 
fees  or  perquisites,  from  any  source  whatr 
ever,  shall  in  all  eases  belong  to  the  county, 
and  shall  be  itaid  into  the  treasury  (except 
where  required  to  be  paid  to  the  state),  as 
provfded  in  this  act"  As  to  this  exception 
and  in  explanation  of  it,  Mr.  Justice  Dean, 
q)eaklng  for  the  court,  said  In  Ck)mmcmwealth 
V.  Mann  et  aL,  168  Pa.  290,  290.  31  Att.  1003, 
1006: 

"This  would  have  been  but  littlo  more  siKnifi- 
cant  if  it  had  said  'except  collateral  inheritance 
taxes,  state  tax  on  writs,  wills,  commissions  and 
license  fees.' " 

Section  9  of  the  act  requires  county  of- 
ficers to  make  monthly  returns  to  the  state 
treasurer  of  such  taxes  and  all  fees  otherwise 
due  the  state,  and  pay  the  same  quarterly 
into  the  state  treasury,  and  provides  that: 

"All  commissiooa  on  the  collection  of  sncli 
taxes  as  are  now  or  may  hereafter  be  allowed 
by  law  shall  be  deemed  and  taken  as  part  of 
the  regular  fees  of  the  officer  collecting  the  same, 
and  shall  be  accounted  for  accordingly." 

The  present  controversy  la  between  an  in- 
dividual, who  Is  county  treasurer,  an'd  the 
county.  The  state  is  not  claiming  the  fees 
for  which  this  suit  was  brought  nor  is  she 
Interested  in  who  gets  them. 

[2,  3]  The  county  of  Schuylkill  has  a  popu- 
lation of  over  150,000,  and  the  treasurer  of 
the  county  Is  therefore  a  salaried  officer.  He 
receives  $5,000  a  year  for  his  services.  It  is 
difficult  to  see,  in  view  of  the  constitutional 
and  legislative  provisions,  what  claim  the 
defendant,  Wiest,  county  treasurer,  as  an  In- 


'dlvidual  and  for  his  own  use,  can  have  on 
the  fund  In  controversy.  He,  through  his 
counsel,  contends  In  support  of  his  claim  that 
the  services  performed  by  him  In  collecting 
the  hunters'  license  fees  under  the  act  of  1913 
were  rendered  to  the  state,  and  were  no  part 
of  his  duties  as  county  treasurer,  but  separata 
and  yistlnct  therefrom.  This  contention  can- 
not be  sustained.  The  act  of  1913  did  not 
make  Wlest  a  state  officer,  as  will  be  conced- 
ed, nor  did  he  have  any  functions  as  such  to 
perform  in  the  collection  of  the  license  fees. 
He  dfd  not  receive  the  fees  in  controversy 
by  authority  conferred  on  him  as  a  state  offi- 
cial. The  act  deals  with  him  as  a  county,  and 
not  a  state  official,  and  not  as  an  individual. 
The  Constitution  of  the  state  fixed  his  status 
as  a  county  officer.  The  county  treasurer, 
as  providcfd  In  the  act,  is  authorized  to  issue 
hunters'  licenses,  to  collect  |1  from  each  ap- 
plicant, to  retain  10  cents  from  the  amount 
paid  to  the  licensee,  and  remit  the  balance  to 
the  state  treasury.  The  act  therefore  confers 
its  authority  on  the  county  treasurer,  and  not 
on  the  individual  who  happens  at  the  time 
to  be  the  incumbent  of  the  office.  Each  step 
he  takes  to  carry  out  the  provisions  of  the 
act  la  in  his  official  capacity  as  county  treas- 
urer. The  license  Is  issued  and  signed  by  the 
county  treasurer  In  his  official,  and  not  his 
personal,  capacity.  By  virtue  of  his  office, 
and  not  as  an  Individual,  he  collects  the  li- 
cense fee  and  retains  the  amount  for  services 
designated  in  the  act  It  is  true  that  the  li- 
cense fees  are  levied  for  and  are  to  be  paid 
to  the  state,  but  It  does  not  follow  that  the 
compensation  for  the  services  rendered  in 
issuing  the  licenses  and  collecting  the  fees 
therefor  Is  to  be  paid  to  and  for  the  use  of 
the  Individual  who  at  the  time  is  the  officer 
authorized  in  his  official  capacity  by  the  stat- 
ute to  perform  the  service.  On  the  contrary, 
section  9  of  the  act,  as  will  be  observed,  pro- 
vides that  the  commissions  for  coUecting 
state  taxes  and  fees  shall  be  deemed  "part  of 
the  regular  fees  of  the  officer  collecting  the 
same,  and  shall  be  accounted  for  accordingly." 
The  act  docs  not  appoint  county  treasurers  as 
agents  of  the  commonwealth  to  collect  the 
license  fees,  nor  does  it  authorize  them  to  ap- 
ply to  their  own  use  the  money  retained  for 
such  services.  The  presumption  Is  that,  when 
an  officer  receives  money  for  services  render- 
ed in  bis  official  capacity,  it  is  as  compensa- 
tion for  the  performance  of  duties  as  such  of- 
ficer. If  Wiest  had  not  held  the  office  of 
county  treasurer,  he  could  not  have  Issued 
the  hunters'  licenses  or  collected  the  license 
fees,  and  necessarily  couTd  not  have  retalaed 
the  designated  fees  for  the  services.  He 
therefore  holds  the  fees,  received  as  compen- 
sation, in  his  official  capacity  as  county  treas- 
urer, and  under  the  constitutional  and  leg- 
islative mandates  he  must  account  for  them 
to  the  county  of  Schuylkill. 

In  construing  the  act  of  1876  and  holding 
that  the  prothonotary  of  Schuylkill  county,  a 


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salaried  officer.  Is  not  entitled  to  the  fees  au- 
thorized by  the  act  of  Clongress  to  be  retained 
by  him  for  the  naturalization  of  aliens,  Mr. 
Justice  Stewart,  speaking  for  the  court  in  the 
recent  case  of  SchuyiklU  C!ounty  t.  Reese, 
249  Pa.  281,  286.  95  Atl.  77,  78,  said: 

"These  fees  for  services  in  c<mnection  with 
naturalization  proceedings,  though  prescribed  by 
federal  statute,  and  by  such  statute  directed  to 
be  paid  to  a  clerk  of  a  state  court,  are  quite 
as  clearly  limited  and  appointed  by  law  to  be 
collected  by  such  official  as  any  fees  prescribed 
by  state  enactment.  ♦  •  ♦  It  was  only  by 
virtue  of  bis  official  cbaracter,  and  not  as  an 
individual,  that  he  was  authorized  to  collect  and 
receive  these  fees;  he  is  not  designated  as  an 
Individual,  but  as  an  official." 

The  Supreme  Ck>urt  of  the  United  States, 
In  Mulcrery  &  Fidelity  &  Deposit  Oo.  ▼.  City 
and  County  of  San  Francisco,  231  U.  S.  669, 
84  Sup.  Ct  260,  68  L.  Ed.  425,  In  construing 
a  provision  of  the  city  charter  of  San  Fran- 
cisco similar  to  the  provision  of  onr  act  of 
1876  and  applying  this  act  of  Congress,  came 
to  the  same  conclusion,  and  held  that  the 
clerk  should  account  to  the  county  for  the 
fees  received  by  him.  Mr.  Justice  McKenna, 
speaking  for  the  court,  said  (231  U.  S.  674, 
34  Sup.  Ct  262,  58  L.  Ed.  425) : 

"If  it  be  granted  that  be  was  made  an  agent 
of  the  national  government,  his  relations  to  the 
city  were  not  thereby  changed.  He  was  still 
its  officer,  receiving  fees  l)ecau8e  bo  was  not 
earning  them  otherwise,  or  receiving  them  other- 
wise, but  under  compact  with  the  city  to  pay 
tbem  into  the  city  treasury." 

The  judgment  is  affirmed. 

(267  Pa.  Ml)  -==• 

KETCHAM  V.  LAND  TITLE  &  TRUST  CO. 

(Supreme   Court   of   Pennsylvania.      April    16, 
1917.) 

MoRTOAOES  iS=>151(3)—PBi0RrrT— Mechanics' 
Liens— Demolition  of  Building — "Visible 
Commencement  upon  the  Gbound  of  toe 
Work  of  Building." 
Where  it  was   necessary   to  tear  down   a 
dwelling  house  before  an  apartment  house  could 
be  constructed  upon  a  lot  and  the  demolition 
was  performed  under  the  same  contract  as  the 
construction,  such  demolition  constitutes  a  "visi- 
ble commencement  upon  the  ^ouad  of  the  work 
of  building"  within  Mechanic's  Lien  Act  (Act 
June   1,   1901    [P.   L.l  431)   |   18,   defining  the 
priority  of  liens,  so  that  a  mechanic's  lien  filed 
for  work,  labor,  and  materials  in  the  construc- 
tion   dated    from    the   commencement    of   such 
demolition,  and  was  prior  to  a  mortgage  execut- 
ed and  recorded  after  the  demolition  has  been 
completed. 

[Kd.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Visible 
Commencement  of  Work.] 

Appeal  from  Court  of  (Common  Pleas,  Phil- 
adelphia county. 

Assumpsit  on  a  policy  of  title  Insurance 
by  O.  W.  Ketcham  against  the  Land  Title  & 
Trust  Company.  From  a  final  order  dismiss- 
ing exceptions  to  the  report  of  a  referee, 
defendant  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSOHZISKBR,  FRAZER,  and  WAL- 
LING, JJ. 


John  G.  Johnson,  Ormond  Rambo,  and  J. 
Quincy  Huusicker,  Jr.,  all  of  Philadelphia, 
for  appellant.  Alex.  Simpson,  Jr.,  and  Joseph 
O.  Magee,  both  of  Philadelphia,  for  api)elle& 

BROWN,  C  J.  On  July  9,  1»12,  Samuel 
Shoemaker  acquired  title  to  a  lot  of  grotmd 
situated  at  the  northeast  corner  of  School- 
house  lane  and  Wayne  avenue,  Germantown, 
on  which  there  was  a  suburban  dwelling 
house.  Shoemaker  purchased  the  lot  for  the 
purpose  of  erecting  an  apartment  house  upon 
It  on  the  site  of  the  dwelling  house.  On 
August  5,  1912,  he  executed  a  mortgage  on 
the  premises  to  Frank  H.  Moss  for  $150,000, 
and  the  money  so  raised  was  expended  In 
the  erection  of  the  new  building.  The  L&nd 
Title  &  Trust  Company,  the  appellant,  issued 
its  policy  of  insurance  to  Moss,  the  mortga- 
gee, insuring  the  completion  of  the  apartment 
house  discharged  of  liens.  O.  W.  Ketcham, 
the  appellee,  filed  a  mechanic's  lien  against 
it  for  materials  furnished  to  Shoemaker  for 
the  erection  of  it.  In  proceedings  on  the 
Moss  mortgage  the  premises  were  sold  at 
sheriff's  sale,  and  Ketcham,  claiming  that  bis 
mechanic's  Hen  had  priority  over  the  mort- 
gage, took  a  rale  on  the  sheriff  to  pay  the 
entire  purchase  price  for  the  property,  $160,- 
000,  Into  court  This  rule  was  subsequently 
abandoned  by  Ketcham,  he  and  the  Land. 
Title  &  Trust  Company  having  agreed  In 
writing  that  the  question  of  the  priority  of 
his  lien  over  the  mortgage  should  be  referred 
to  Francis  B.  Bracken,  Esq.,  under  the  act 
of  May  14,  1874  (P.  L.  166).  In  pursuance 
of  the  terms  of  this  agreement,  Ketcham 
brought  suit  against  the  Land  Title  ft  Trust 
Company,  and  from  the  r^ort  of  the  refereei, 
confirmed  by  the  court  below,  holding  that 
the  mechani<i'8  lien  had  priority  over  the 
mortgage,  the  present  appeal  was  taken. 

The  facts  in  the  case  are  not  in  dispute. 
The  amount  claimed  by  the  appellee  on  bis 
mechanic's  lien — $15,066— Is'  admitted  to  be 
correct  His  claim  for  its  priority  over  the 
mortgage  is  resisted  solely  on  the  ground 
that  the  mortgage  was  recorded  before  there 
was  "the  visible  commencement"  of  the 
apartment  house  within  the  meaning  of  the 
Mechanic's  Lien  Act  of  June  4,  1901  (P.  L. 
431,  {  13).  The  only  work  done  on  the  prem- 
ises prior  to  August  6,  1912,  the  date  of  the 
execution  and  recording  of  the  mortgage,  in 
connection  with  the  contemplated  erection  of 
the  apartment  honse,  was  the  demolition  of 
the  dwelling  house.  This  work,  which  was 
commenced  on  July  15th,  was  completed  on 
or  about  tlie  third  of  the  following  month, 
two  days  before  the  recording  of  the  mort- 
gage, and  the  question  before  the  referee  and 
court  below  was  whether  Its  demolition  was 
"the  visible  commencement  upon  the  ground 
of  the  work  of  building"  the  apartment 
house. 


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IK  BE  BKIKGHUBST'S  ESTATE 


765 


nie  demolition  of  ibe  dwelling  house  was 
a  necessary  precedent  condition  to  the  erec- 
tion of  the  apartment  bouse.  The  latter  could 
not  be  bnllt  until  the  former  was  out  of  the 
way.  The  tearing  down  of  the  old  house  was 
more  essential  to  the  building  of  the  new 
than  would  hare  been  the  digging  of  a  cel- 
lar, for  the  new  bouse  might  have  been  built 
without  a  cellar.  The  first  step  to  be  taken 
for  its  erection  was  the  removal  of  the  old 
dwelling  which  stood  on  the  site  selected  for 
It.  The  situation  here  presented  is  not  that 
of  the  removal  of  an  old  building  having  no 
connection  with  the  construction  of  a  new 
one,  for  the  removal  was  so  linked  with  the 
work  upon  the  new  building  as  to  become  a 
part  of  one  single  operation,  and  this  con- 
dusively  appeared  to  the  appellant  before  it 
issued  its  policy  of  insurance  to  Moss.  The 
architect  who  designed  the  new  building  and 
drew  tlw  speclflcatlons  for  it  to  be  submitted 
to  contractors,  included  in  them  the  follow' 
Ing: 

"Demolition.  Bemove  the  buildings  now  on 
the  site  together  with  all  foandations,  sidewalks 
and  curbing,  and  prepare  the  site  to  receive  the 
new  building." 

J.  Willlson  Smith,  the  manager  of  the 
building  operation  department  of  the  appel- 
lant, admitted  in  bis  testimony  before  the 
referee  that  these  specifications  were  on  file 
with  his  company  before  it  issued  its  policy 
to  Moss,  and  the  learned  court  below.  In  dis- 
missing the  exceptions  to  the  report  of  the 
referee,  properly  said: 

"The  defendant  had  actual  knowledge  that  the 
work  of  demolition  was  done  for  constructive 
purposes,  that  is.  as  part  of  the  work  necessary 
to  the  new  building.  The  specifications  recited 
the  work  of  demolition  and  construction  as  part 
of  the  same  contract,  and  it  was  these  specifica- 
tions which  the  defendant  insured  should  hi 
carried  out.  Moreover,  the  money  to  pay  for 
the  whole  was  deposited  with  the  defendant  for 
distribution.  It  therefore  had  knowledge  of  the 
unity  of  the  operation." 

We' find  none  of  the  authorities  dted  by 
learned  counsel  for  appellant  in  conflict  with 
the  correct  conclusion  of  the  learned  referee 
that,  under  the  undisputed  facts  in  the  case, 
the  demolition  work  incident  to  the  erection 
ol)  the  apartment  house  on  the  lot  of  ground 
subject  to  the  mortgage  Insured  by  the  de- 
fendant was  a  "visible  commencement"  of  the 
work  of  building  the  apartm^it  house,  within 
the  meaning  of  the  mechanic's  lien  act.  In 
none  of  our  own  cases  was  the  question  now 
before  us  passed  upon.  It  Incidentally  arose 
In  McCristal  T.  Cochran,  147  Pa.  226,  23  Atl. 
444,  and.  In  declining  to  pass  apon  It,  Mr. 
Cblef  Justice  Paxson  said: 

"Most  of  the  items  contained  in  the  bill  of  par- 
ticulars were  for  tearing  down  an  old  builrling 
preparatory  to  the  erection  of  the  new  building, 
for  which  the  claim  was  filed.  Whether  such 
demolition  is  part  of  the  erection  of  a  new 
building  is  a  question  which  we  do  not  find  de- 
cided by  this  court  in  any  reported  case.  We 
are  not  required  to  do  it  now,  as  the  first  item 
In  the  bill  of  particulars  Is  sufBcient  to  sustain 


the  claim.  It  is  not  a  good  ground  to  strike 
off  a  claim  that  some  of  the  items  are  insuffi- 
cient. If  it  contains  one  good  item,  which  is 
the  subject  of  a  Uen,  it  is  enough." 

Among  the  cases  in  other  jurisdictions  sus- 
taining the  referee  are  Whltford  v.  Newell, 
2  Allen  (84  Mas&)  424;  Bruns  v.  Braun,  35 
Mo.  App.  337;  Pratt  v.  Nakdimen,  99  Ark.  293, 
138  S.  W.  974,  Ann.  Cas.  1913A,  872.  "Where 
improvements  for  which  a  lien  can  properly 
be  obtained  are  made,  the  lien  may  Include 
the  work  of  tearing  down  old  structures  or 
parts  thereof  which  was  a  necessary  part  of 
the  making  of  the  improvements,"  27  Cyc.  36. 
In  Ann.  Cas.  1912B,  15,  there  is  a  note  on  the 
subject  now  under  consideration,  and,  after 
citing  authorities  which  hold  that,  for  the 
removal  or  demolition  of  a  building,  no  Hen 
will  be  ^stained,  It  proceeds  as  follows: 

"Where  an  old  building  is  torn  down  for  the 
purpose  of  erecting  a  new  one,  obviously  a  dif- 
ferent cajse  is  presented.  The  demolition  be- 
comes part  of  the  work  of  erection,  construction, 
or  repair,  and  the  laborer  is  entitled  to  a  lien. 
WartI  V.  Crane,  118  Cal.  676.  50  Pac.  839; 
Bruns  v.  Braun,  35  Mo.  App.  337." 

The  assignments  of  error  are  overruled  and 
the  judgment  is  aflSrmed. 


(1G7  Pa.  SIS) 

In  re  BRINGHUBSrS  ESTATE. 

Appeal  of  FLANAGAN. 

(Supnane   Court  of  Pennsylvania.     April  16, 
1917.) 

Wiixs  «=3601(7)— Devise  to  MARann  Wo- 
MAW— Tbdst. 
A  will  devising  a  residuary  estate  to  a 
daughter  for  her  sole  and  extrusive  use  free  from 
the  control  of  her  husband,  to  be  used  by  her 
as  if  she  were  sole  and  nnmarrled,  intended  a 
trust  for  her  separate  use,  so  that  her  petition 
to  vacate  her  appointment  as  trustee  for  her- 
self, filed  during  the  Ufetime  of  her  husband, 
was  properly  dismissed. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

Petition  by  Mary  Brlnghurst  Flanagan, 
trustee,  to  annul  and  vacate  a  decree  appoint- 
ing her  trustee  In  the  estate  of  Alice  R. 
Brlnghurst,  deceased,  and  directing  the  en- 
try of  security.  From  an  order  dismissing 
the  petition,  petitioner  appeals.    Affirmed. 

The  facts  appear  from  the  following  opin- 
ion of  Lamorelle,  J.,  in  the  orphans'  court: 

This  is  a  petition  to  annul  and  vacate  a  de- 
cree appointmg  a  trustee  and  directing  the  en- 
try of  securityr  Alice  R.  Brlnghurst,  who  died 
in  the  year  1906,  bequeathed  and  devised  her 
residuary  estate  unto  her  daughter,  Mnry  Brlng- 
hurst Flanagan,  in  the  language  foUiiwing: 

"Sixth.  All  the  rest  of  residue  and  remainder 
of  my  estate  real  and  personal  and  mixed  of 
whatsoever  kind  and  wheresoever  the  same  may 
be  situate  I  give  and  devise  and  bequeath  to 
my  daughter  Mary  Brlnghurst  Flanagan  to  be 
for  her  sole  separate  and  exclusive  use  notwith- 
standing any  coverture  free  and  clear  of  inter- 
ruption intervention  or  control  of  her  husband 
or  any  husband  she  may  have  and  without  the 
said  property  and  estate  shall  be  held  and  used 
and  enjoyed  by  the  said  Mary  Brlnghurst  Flana- 


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IW  ATLANTIC  REPOllTEB 


(Pa. 


gan  in  all  respects  and  in  as  full  and  ample  a 
manner  notwitlistanding  her  coverture  aa  if  abe 
were  sole  and  unmarried." 

In  1907  Mary  Bringhnrat  Flanagan,  the 
daughter,  being  desirous  of  selling  some  of  the 
realty  forming  part  of  Uie  residue  of  the  estate, 
petitioned  this  court  for  leavo  to  appoint  her 
trustee  for  herself  to  make  such  sale,  and  to 
give  her  own  bond.  In  due  course  she  was  ap- 
pointed such  trustee,  her  request  to  give  her  own 
bond  refused,  and  security  was  directed  to  be 
entered  in  the  sum  of  $12,500. 

The  surety  on  the  bond  is  now  deceased,  and 
the  purpose  of  the  present  petition  is  to  termi- 
nate the  trust,  release  the  bondsman,  and  receive 
from  the  executors  of  her  will  the  sum  ef  some 
$6,500  which  he  in  his  lifetime  held  aa  counter 
indemnity.  Aa  we  view  the  will,  w«  cannot 
grant  the  prayer  of  the  petition. 

At  the  time  of  the  execution  of  the  will  Mary 
Bringhurst  Flanagan  was  married,  and  her 
hnsbuid  survives.  It  was  the  manifest  intention 
of  testatrix  that  her  daughter  should  hold  the 
estate  for  her  sole,  separate,  and  exclusive  use, 
and  while  the  latter  part  of  the  clause  wherein 
and  whereby  the  gift  is  made  is  not  altogether 
in  harmony  with  the  gift  itself,  we  do  not  feel 
that  there  is  such  a  contradiction  as  will  enable 
us  to  ignore  the  legal  effect  of  the  technical  lan- 
^age  used  by  the  testatrix. 

The  loiwer  court  dismissed  the  petition. 
The  trustee  appealed. 

Argued  before  BROWN,  C.  J.,  and  STEJW- 
ARI,  MOSOHZISKER,  FRAZER  and  WAI#- 
UNO,  JJ. 

B.  Hnnn,  Jr.,  of  PhiladelpUa,  for  appellant 

PER  CURIAM.  Thongb  the  last  clause  of 
the  sixth  paragraph  of  the  will  of  testatrix 
Is  apparently  contradictory  of  what  immedi- 
ately precedes  It,  her  main  Intent  that  a 
trust  should  be  created  for  her  daughter's 
sole,  separate,  and  exclusive  use  Is  clearly 
stated,  and  the  decree  is  affirmed,  at  appel- 
lant's costs,  on  the  opinion  of  the  court  be- 
low directing  It  to  be  entered. 


(2ST  Pa.  E17) 

MILLER  T.  WEST  JERSEY  &  S.  S.  R.  CO. 

(Supreme  Court   of   Pennsylvania.     April   16, 
1917.) 

Railboads  «=>327(3)— Obadx  Ckossiko  Acci- 
dent—Cohtwbutobt  NiOLIOINCK. 
One  who  before  stepping  upon  a  track  at  a 
grade  crossing  had  an  unobstructed  view  for 
067  feet,  and  who,  if  he  had  then  looked,  must 
have  seen  the  approaching  electric  express  train 
by  which  he  was  struck,  was  negligent. 

Appeal  from  Court  of  Common  Pleas, 
Philadelphia  County. 

Trespass  by  Elizabeth  H.  Miller,  admin- 
istratrix of  the  estate  of  Franklin  C.  Miller, 
deceased,  against  the  West  Jersey  ft  Sea- 
shore Railroad  Company,  to  recover  for  the 
death  of  plalntlfTs  husband.  Verdict  for 
the  plalntur  for  $25,000,  judgment  for  de- 
fendant non  obstante  veredicto,  and  plain- 
tiff appeals.    Affirmed. 

.\rgued  before  BROWN,  C.  J.,  and  STEW- 
ART. MOSOHZISKER,  FRAZER,  and  WAL- 
LING,  JJ. 


Jacob  Singer,  David  Bortln  and  Emanuel 
Furth,  all  of  Philadelphia,  for  appellant. 
Sharswood  Brlnton,  of  Philadelphia,  for  ap- 
pellee. 

PER  CURIAM.  Upon  a  review  of  the  evi- 
dence in  this  case  the  court  below  conid 
not  have  avoided  the  conclusion  that  the 
carelessness  of  the  deceased,  when  about  to 
cross  the  railroad  trades,  was  responsible 
for  his  death,  and  the  Judgment  non  ob- 
stante veredicto  is  affirmed  on  the  follow- 
ing from  the  opinion  directing  tt  to  be  en- 
tered: 

"If  the  deceased  did  not  see  the  electric  train 
in  time  to  save  himself,  it  was  becaase  be  did 
not  look.  Where  a  person  fails  to  see  that 
which  was  plainly  obvious,  such  person  is  clear- 
ly guilty  of  contributory  neglisjence.  The  de- 
ceased must  either  have  seen  the  electric  train 
and  have  taken  his  chances  of  crossing  in  front 
of  it,  or  he  did  not  look.  All  the  facts  in  the 
case  evidence  that  the  electric  train  was  not  one 
which  came  into  view  after  the  deceased  was 
committed  to  the  act  of  crossing;  it  was  in 
plain  view  at  the  time  that  he  stepped  npon  the 
tracks.  The  deceased  was  not  a  stranger  at 
this  railway  crossing,  as  has  already  been 
shown,  and  his  knowledge  charged  him  with  the 
necessity  of  exercising  special  care  in  crossing 
the  tracks.  It  was  shown  that  at  the  time  he 
attempted  to  cross  the  train  that  he  expected  t» 
take  would  not  reach  the  station  for  some  eight 
minutes.  Another  point  which  would  appear  t« 
be  perfectly  clear  Is  that  for  the  whole  length 
of  the  picket  fence  which  separated  the  middle 
south-bound  track  from  the  north-bound  track 
there  was  positively  no  obstruction  of  vision. 
This  fence  by  measurement  was  967  feet.  When 
the  deceased  and  the  witness  Avis  stood  west  of 
the  first  outbonod  track,  after  leaving  the  news 
stand  and  before  stepping  upon  the  track,  and 
also  when  they  stood  in  the  15  feet  clear  space 
between  the  two  sooth-bound  tracks,  they  had 
an  admittedly  perfect,  unobstructed  view  of 
the  length  of  the  fence,  the  967  feet." 

Judgment  affirmed. 


(SET  Pa.  20i 
COMMONWEALTH  v.  KEYSTONE  GRAPH- 
ITE CO.  et  aL 

(Supreme  CJourt  of  Pennsylvania.     Mandt  19^ 
1017.) 

1.  JddICIAI.  SaUCS  «=>1  —  MOBTOAGSS—  Sais 

— "Jddiciai.  Sale." 
Wlierc  a  corporation  mortgaged  its  property 
to  a  trust  company  to  secure  a  bond  issue,  a 
sale  by  the  mortgage  trnstee  nnder  a  power  of 
aale  contained  in  the  mortgage  to  certain  trna- 
tees  for  the  bondholders,  made  after  the  corpo- 
ration had  sold  its  interest  in  the  mortgaged 
premises,  was  not  a  "judicial  sale." 

PEM.  Note. — For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Judicial 
Sale.] 

2.  Taxation    ig=»C82— Tax    Likn— Ekposck- 
UENT   Against   Pubchaseb   at   MoBTOAax 

FORIXLOSUBE  SaUC. 

Where  a  lieu  for  unpaid  capital  stock  tax- 
es WAS  entered  against  the  corporation  purchas- 
er of  corporation  property  mortgaged  to  secnre 
a  bond  issue,  and  the  property  was  subsequently 
sold  by  the  mortgage  trustee  under  a  power  of 
sale  contained  in  the  mortgage  to  certain  trus- 
tees for  bondholders,  the  tax  lien  was  not  there- 
by divested,  and  the  proceeds  of  the  sheriCTs  sale 


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LAPINCO  T.  PHILADELPHIA  A.  R.  RY.  CO. 


767 


under  Buch  Hen  were  properly  awarded  to  the 
coramouwcalth,  to  the  exclusion  of  the  trustees 
for  bondholders. 

Ai»penl  from  Court  of  Common  Pleas,  Ches- 
ter County. 

Scire  facias  to  remore  the  Hen  of  a  mort- 
gage by  the  Commonwealth  of  Pennsylvania 
against  the  Keystone  Graphite  Company, 
with  notice  to  Hiram  C.  Hlmes  and  others, 
trustees  for  the  bondholders  of  the  New  Phil- 
adelphia Graphite  Company,  terre-tenants. 
On  exceptions  to  the  report  of  an  auditor  dis- 
tributing the  proceeds  of  a  sheriffs  sale  of 
real  estate.  Dismissed,  and  defendants  ap- 
peal.   AfBrmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TRBZAT,  STBWABT,  MOSOHZISKER,  and 
WALUNG,   JJ. 

Edmund  Bayly  Seymour,  Jr.,  of  Pblladel- 
lAla  and  Arthur  P.  Reld,  of  West  Chester, 
for  appellants.  Isabel  Darlington  and  Thomas 
S.  Butler,  both  of  West  Chester,  for  the  Com- 
monwealth. 

WAIiLING,  J.  In  1905  the  New  Phila- 
delphia Graphite  Comptmy,  a  New  Jersey 
corporation,  took  title  to  certain  real  estate  In 
CJhester  county.  Pa.,  and  at  the  time  execut- 
ed a  deed  of  trust  In  the  nature  of  a  mortgage 
to  the  Union  Trust  Company  (now  Merchants' 
Union  Trust  Company)  to  secure  an  Issue  of 
bonds  to  the  amount  of  $50,000.  In  1907  the 
Keystone  Grapblte  Company,  a  Delaware 
corporation,  purchased  the  property  from  the 
Z^ew  Philadelphia  Graphite  Company,  subject 
to  the  mortgage.  On  December  14,  1910,  the 
conunonwealth  entered  Its  lien  for  capital 
stock  taxes  for  the  years  1907  to  1910  against 
the  Keystone  Graphite  Company.  On  De- 
cember 21, 1910,  the  trust  company,  pursuant 
to  authority  contained  In  the  mortgage,  sold 
tlie  property  at  public  auction  for  |5,000  to 
certain  parties  as  trustees  for  the  bondhold- 
ers. In  1912  the  commonwealth  Issued  a  scire 
fadas  on  Its  lien,  and  the  last-named  trus- 
tees, being  served  as  terre-tenants,  made  de- 
fense on  the  ground  that  plaintiff's  lien  had 
been  divested  by  the  public  sale.  Such  de- 
fense was  held  InsufBdent,  and  judgment  was 
entered  for  the  commonwealth  in  the  court  be- 
lowi,  which  was  affirmed  by  this  court  in  Com. 
V.  Keystone  Graphite  Co.,  248  Pa,  844,  93 
Atl.  1071.  It  Is  there  held  that  the  sale  on 
the  mortgage,  not  being  a  judicial  sale,  did 
not  divest  the  plaintllFs  lien. 

[1,  2]  In  1915  the  commonwealth  Issued  a 
levari  fadas  on  the  judgment,  by  virtue  of 
which  the  sheriff  sold  the  real  estate  to  trus- 
tees for  the  bondholders  for  $1,860.  The 
conrt  below  confirmed  the  auditor's  report 
awarding  the  fund,  less  costs,  etc.,  to  the  com- 
monwealth on  its  judgment.  From  thts  de- 
cree the  trustees  for  the  bondholders  took 
this  appeal.  The  fund  was  rightly  distribut- 
ed.   The  public  sale  on  the  mortgage  divest- 


ed its  lien  and  left  that  of  the  commonwealth 
the  first  lien  against  the  property.  The  sher- 
iff sold  the  land  as  the  property  of  the  Key- 
stone Graphite  Company,  and  his  deed  con- 
veyed whatever  Interest  the  company  had  in 
the  land  when  the  lien  of  the  commonwealth 
was  filed;  and,  so  far  as  relates  to  this  dis- 
tribution, it  Is  not  lnq)ortant  whether  his 
deed  carried  a  fee  or  merely  an  equity  of  re- 
demption. The  sherifTs  sale  certainly  did 
not  divest  the  lien  of  the  mortgage,  and  hence 
the  holders  of  the  bonds  thereunder  have  no- 
claim  on  this  fund.  It  is  res  adjudicata  that 
the  commonwealth's  lien  was  not  divested  by 
the  sale  on  the  mortgage,  and  hence  the  pur- 
chasers of  the  land  at  that  sale  have  no  claim 
here.  One  who  buys  land  subject  to  a  Hen 
does  not  thereby  become  entitled  to  the  pro- 
ceeds derived  from  a  suhsequent  jndidal  sale 
of  the  same  projierty  on  such  lien. 
'  There  Is  nothing  in  the  record  to  support 
a  claim  by  the  purchasers  at  the  sheriff's- 
sale  to  recover  back  in  this  distribution  the 
consideration  they  there  paid  for  the  proper- 
ty. The  rule  of  caveat  emptor  applies  to  such 
sale;  and,  aside  from  that,  there  is  nothing 
to  indicate  that  the  sherltTs  vendees  did  not 
acquire  a  vaUd  title.  In  our  opinion  the 
question  of  the  statutory  right  of  the  com- 
monwealth to  enforce  liens  filed  for  such- 
taxes,  to  the  prejudice  of  the  holders  of  prior 
mortgages  whether  given  for  purchase  money 
or  otherwise,  is  not  involved  in  this  case. 

The  assignment  of  error  is  overruled,  andt 
the  order  of  distribution  is  affirmed,  at  the 
costs  of  the  appellant& 


(257  Pa.  344) 

LAPINCO  V.  PHILADELPHIA  &  B.  RT.  CO. 

(Supreme    Conrt    of   Pennsylvania.      April    9, 
1917.) 

1.  Bailkoads  «=»346(1)— Cbossino  Accident 
—Negligence— EJviDEKCE. 

In  action  against  railroad  for  personal  In- 
jury when  struck  by  locMnotive,  evidence  held 
insufficient  to  overcome  presumption  that  de- 
fendant was  not  negligent  in  failing  to  provide 
proper  headlight,  so  that  trial  judge  should  have 
directed  finding  that  headlight  was  burning. 

2.  RAIiaOADB   «=>333(1)— CKOBSIKO   ACCIDBItT 

— Contributory  NEauoBNOE. 
Where  plaintiflf  stopped,  looked^  and  listened 
at  a  track  next  to  the  one  on  which  the  train 
which  struck  him  approached,  and  did  not  see 
the  engine,  though  he  had  an  unobstructed  view 
for  160  feet,  and  immediately  started  across  the 
track,  and  wa»  struck,  he  was  contributoiily 
negligent. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Jachim  Lapinco  against  the 
Philadelphia  &  Reading  Railway  Company  to 
recover  damages  for  personal  Injury.  Ver- 
dict for  plaintiff  for  $4,500,  and  judgment 
thereon,  and  defendant  appeals.  Reversed, 
and  judgment  entered  for  defendant. 

Argued  before  BROWN.  C.  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and  FRAZ- 
ER,  JJ. 


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CPa. 


William  Clarke  Mason,  of  Philadelphia,  for 
appellant  William  T.  Connor  and  John  R. 
K.  Sicott,  both  ot  Philadelphia,  for  appellee. 

BROWN,  a  J.  The  plaintiff  was  struck 
by  an  engine  of  the  defendant  on  November 
29,  1613,  about  5  o'clock  In  the  afternoon,  at 
what  Che  jury  found  was  a  permissible  cross- 1 
ing  in  the  city  of  Coatesvllle.  For  the  inju- 
ries sustained  he  recovered  a  verdict;  the 
Jury  having  found  that  the  defendant  had 
negligently  operated  its  engine  at  the  point 
where  he  was  hurt,  and  that  he  had  exercised 
due  care  in  attempting  to  cross  the  track. 
On  this  appeal  from  the  judgment  on  the  ver- 
dict the  contention  of  the  appellant  is  that 
Its  motion  for  a  nonsuit  ought  to  have  pre- 
vailed, or  a  Terdlct  should  have  been  direct- 
ed in  its  favor,  as  BO  negligence  on  its  part 
had  been  shown,  and  the  contributory  negli- 
gence of  the  plaintiff  was  so  clear  that  the 
trial  Judge  should  hare  declared  it  to  be  a 
bar  to  his  right  to  recover. 

[1,2]  Alongside  the  track  on  which  the 
plaintiff  was  struck  there  are  two  sidings. 
After  crossing  over  the  first,  he  stepped  on 
the  second  and  looked  up  and  dovni  the 
main  track.  It  was  dark,  but  lights  were 
burning,  and  the  plaintiff  testified  he  could 
aee  a  distance  of  160  feet  in  the  direction 
from  which  the  engine  was  coming.  He 
stated  distinctly  that  there  was  nothing  to 
obstruct  his  view  down  the  track  for  that 
distance.  According  to  the  testimony  of  vrtt- 
nesses  called  by  the  defendant,  the  distance 
of  the  unobstructed  Tlew,  from  actual  meas- 
urements on  the  ground,  was  much  greater. 
With  the  unobstructed  view  of  at  least  160 
feet  before  him,  the  plaintiff  started  toward 
the  third  or  main  track,  and  the  instant  be 
put  his  foot  on  the  first  rail  the  engine  ran 
over  It  He  testified  that  from  the  time  he 
started  from  the  siding  or  second  track  he 
kept  on  looking  and  listening,  but  neither 
beard  nor  saw  the  approaching  engine.  On 
the  testimony  which  he  submitted  as  to  its 
speed  and  the  failure  to  give  notice  of  its  ap- 
proach, by  bell  or  whistle,  it  may  be  conced- 
ed that  the  question  of  the  defendant's  neg- 
ligence was  for  the  Jury ;  but,  as  the  plaintiff 
was  bound  not  only  to  listen,  but  to  look,  the 
only  rational  oonduslon  dedudble  from  all 
the  testimony  in  the  case  is  that  he  failed  to 
look  as  be  approached  the  track  on  which  he 
was  struck.  If  be  had  looked,  he  most  have 
seen  the  engine  coming  towards  him.    Ne- 


ther he  nor  either  of  his  two  witnesses  who 
saw  the  accident  testified  that  there  was  not 
a  headlight  burning  on  the  locomotive.  Nei- 
ther of  them  said  anything  about  a  head- 
light, and  their  testimony,  given  Its  full  ef- 
fect, was  merely  that  they  had  not  seen  the 
engine.  There  was  no  presumption  that  the 
defendant  had  failed  to  have  a  burning  head- 
light on  it  and  the  burden  of  showing  negli- 
gence in  this  respect  was  upon  the  plaintiff. 
Hanna  y.  Philadelphia  &  Reading  Ry.  Co.,  213 
Pa.  157,  62  Atl.  643,  4  Ia  R.  A.  (N.  S.)  344. 

The  negative  testimony  of  plaintiff  and  his 
witnesses,  to  which  we  have  referred,  was 
not  sufficient  to  make  out  a  charge  of  negli- 
gence as  to  the  headlight,  and  a  finding  by 
the  Jury  that  one  was  not  burning  on  the  en- 
gine at  the  time  of  the  accident  was  not  only 
without  evidence  on  the  part  of  the  plaintiff 
to  sustain  It,  but  was  in  the  teeth  of  an- 
impeeched  evidence  submitted  by  the  defend- 
ant that  the  engine  was  equipped  with  a 
proper  light  Nalln,  the  engineer,  testified 
that  there  was  a  burning  headlight  on  his  en- 
gine, in  front  of  a  reflector;  Gray,  his  fire- 
man, said  the  headlight  was  burning  bright- 
ly; and  Thompson,  the  conductor,  said  he 
saw  it  burning.  Tte  testimony  of  these  three 
witnesses  was  unequivocally  corroborated  by 
Hamlsh,  Blvans,  and  Williams,  three  of  de- 
femdant's  brakemea  These  six  witnesses 
were  In  a  position  to  see,  and  did  see,  and,  in 
view  of  their  positive  and  aftirmatlve  testi- 
mony that  the  headlight  was  burning,  with 
no  proof  offered  by  the  plaintiff  to  rebut  the 
presumption  that  the  defendant  was  not  neg- 
ligent as  to  this,  the  trial  Judge  should  have 
directed  the  Jury  to  find  that  It  was  burning. 
Knox  V.  Philadelphia  &  Reading  By.  Co.,  202 
Pa.  604,  62  Att.  90;  Keiser  v.  Lehigh  Valley 
R.  R.  Co.,  212  Pa.  409,  61  AtL  903, 
108  Am.  St  Rep.  872;  Anspach  v.  Philadel- 
phia &  Reading  Ry.  Co.,  225  Pa.  628,  74  AtL 
373,  28  L.  R.  A.  (N.  8.)  382;  Charles  ▼.  Le- 
high VaUey  R.  R.  Co..  245  Pa.  496v  91  AU. 
890;  Leader  v.  Northern  Central  Ry.  Co.,  246 
Pa.  452,  92  Aa  696. 

Under  Carroll  r.  Penna.  R.  R.  Co.,  12 
Wkly.  Notes.  Cas.  348,  and  the  long  line  of 
cases  following  It  down  to  Stoker  v  Philadel- 
phia &  Reading  Ry.  Co.,  254  Pa.  494,  98  AtL 
28,  it  was  the  clear  duty  of  the  court  below 
to  enter  Judgment  for  the  defendant  non  ob- 
stante veredicto. 

The  fourth  assignment  of  error  is  sustain- 
ed, and  Judgment  is  here  entered  for  the  de- 
fendant 


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BAKER  y.  BUSHFOAD 


769 


<S1  Vt  4K) 

BAKER  T.  BUSHFOBD  et  aL 


(Supreme  Court  of  Vermont. 
Sept  4,  1917.) 


Franklin. 


1.  INSUBANCB  «=»580(1)  —  VltNDOB  AND   PCB- 

CHA8EB— Bights  of  Pabtibs  —  Insukanck 

Monet. 
Where  premigea  were  sold,  title  to  be  trans- 
ferred on  tbe  making  of  certain  payments  and  a 
contemporaneous  mortgage  to  the  vendor  to  se- 
cure tbe  balance  of  the  consideration,  tbe  rights 
of  the  parties  in  respect  to  insurance  money 
accruing  from  destruction  by  fire  of  a  building 
on  tbe  premises  were  tbe  same  as  they  would 
have  been  if  the  fire  had  occurred  after  convey- 
ance, the  buyer  being  in  possession  and  having 
performed  aU  his  obligations  under  the  contract 
to  date. 

2.  Vbndob  and  Pubchaseb  «=954  —  EsTAiEa 
OF  Vbndob  and  Vendex. 

An  executory  contract  for  the  sale  of  land 
left  the  legal  estate  in  the  vendor,  but,  except  for 
his  interest  in  the  property  as  security,  the  ven- 
dor held  the  title  in  trust  for  the  vendee,  re- 
garded by  equity  as  the  owner. 
8.  Vendob  and  Pubchaseb  €=>54— Riohtb  or 
Pabties  ajtbb  Tbansfbb  of  TrruB. 

After  title  to  land  was  sold  under  an  ex- 
ecutory contract,  the  vendee  before  he  broke 
any  condition  of  the  contract  was  holder  of  the 
legal  title  and  estate,  and  the  vendor  had  his 
security  in  the  form  ix  a  mortgage  given  him. 

4.  Vendob  and  Pubohabeb  ^=3 182— Payment 
of  Pbice — Time— Option  of  Vendee. 

Where  installments  of  the  purchase  price  of 
land  were  all  payable  on  or  before  the  dates  spec- 
ified, the  entire  indebtedness  was  payable  at 
once  at  the  vendee's  option. 

5.  Insubance  ^s>680(1)—Pbocsej>s— Vendob 
AND  Pubcbaseb- Retention  of  Secubitt— 
Chanok  in  Fosm. 

Where  a  farm  and  personal  property  were 
sold,  the  vendee  giving  the  vendor  a  chattel 
mortgage  on  all  the  personalty  to  secure  pay- 
ment of  tbe  first  $1,50U  of  the  price,  the  contract 
providing  that  when  such  payment  was  com- 
pleted and  all  conditions  perfoi-med  the  vendor 
should  give  the  vendee  a  warranty  deed  of  the 
land,  and  receive  a  mortgage  for  the  balance, 
payable  on  or  before  specified  dates,  the  vendee 
to  keep  the  buildings  and  coutenta  insured  for 
lfl,400  for  benefit  of  the  vendor,  the  insurance 
money  arising  from  loss  by  fire  stood  in  the 
place  of  the  property  destroyed,  to  be  held  for 
application  by  the  vendor  which  would  complete 
payment  of  the  debt,  and  the  vendee  could  not 
require  application  thereof  to  the  discharge  of 
the  chattel  mortgage. 

Appeal  In  Chancery,  Franklin  County ;  Im 
P.  Slack,  Chancellor. 

Suit  by  David  Baker  against  Calvin  Bush- 
ford  and  Ella  Kushford.  From  a  decree  for 
plaintiff,  defendants  appeal.  Decree  revers- 
ed, and  cause  remanded,  with  direction  tliat 
tbe  complaint  be  dismissed. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HAZKM^ON,  POWERS,  and  TAX- 
liOB,  JJ. 

P.  H.  Coleman,  of  Montgomery,  and  A.  B. 
Rowley,  of  Richford,  for  appellants.  Gay- 
lord  F.  Ladd,  of  Bidiford,  for  appellee. 

MUNSON,  O.  J.  The  defendants  are  the 
vendors,  and  the  plaintiff  the  assignee  of 
the  vendee,  of  a  farm  and  personal  property, 
the  sale  of  which  was  evidenced  by  a  writ- 


ten contract,  dated  July  10,  1311.  The  price 
was  $3,000 ;  $200  of  which  was  to  be  paid  on 
or  before  July  10, 1912,  and  $200  on  or  before 
the  10th  of  July  in  ea<d]i  year  thereafter  until 
all  was  paid.  At  the  date  of  the  contract, 
the  vendee,  Mary  Martin,  gave  tbe  defendant 
Calvin  a  chattel  mortgage  of  all  tbe  personal 
property  described  In  the  contract,  to  secure 
the  payment  of  the  first  $1,600  of  the  pur- 
chase price.  When  this  payment  was  com- 
pleted, and  aU  conditions  performed,  the  ven- 
dors were  to  give  the  vendee  a  warranty 
deed  of  the  land  and  premises,  and  receive  a 
mortgage  deed  of  the  same  to  secure  the  bal- 
ance of  the  annual  payments,  and  tbe  other 
conditions  of  tbe  contract.  By  tbe  terms  of 
the  contract  the  vendee  was  to  pay  aU  taxes 
afterwards  assessed  on  tbe  property,  and 
keep  the  buildings  and  contents  insured  for 
$1,400  in  a  specified  company  for  tbe  benefit 
of  tbe  vendors.  Tbe  vendee  and  her  husband 
took  possession  of  the  property  soon  after 
the  execution  of  tbe  contract,  and  remained 
in  possession  until  October  14,  1912,  on 
which  day  they  assigned  their  Interest  In  tbe 
contract  to  tbe  plaUitiff,  who  thereupon  took 
possession.  The  dwelling  bouse  on  tbe  prem- 
ises was  destroyed  by  fire  February  21,  1915, 
without  the  faidt  of  either  party.  It  was  in- 
sured in  tbe  required  company  for  $1,000^ 
by  a  policy  procured  by  tbe  plaintiff  and 
made  payable  to  tbe  plaintiff  and  the  de- 
fendant Calvin ;  and  on  tbe  20tb  of  March 
tbe  loss  was  adjusted  at  $990,  and  covered 
by  a  check  made  payable  to  both  tbe  insured. 
The  plaintiff  indorsed  tbe  check  and  deliver- 
ed it  to  Calvin,  who  deposited  it  in  a  bank 
in  bis  name  as  trustee,  where  it  has  since  re- 
mained. There  was  nothing  due  under  tbe 
contract  at  tbe  time  of  tbe  fire,  and  $95  bad 
been  paid  on  tbe  installment  next  to  become 
due;  and  all  tax  assessments  had  been  paid. 
It  would  cost  betwe^  $1,500  and  $1,800  to 
replace  the  buUdlng.  Each  party  has  refused 
to  take  the  money  and  rebuild.  Tbe  value 
of  the  land  without  the  building  is  $800.  On 
tbe  25th  of  March,  1915,  tbe  plaintiff  gave 
the  defendants  written  directions  to  make 
an  immediate  application  of  tbe  insurance 
money  on  tbe  iiayments  to  become  due  under 
tbe  contract.  Tbe  biU  prays  to  have  tbe 
money  so  applied,  and  the  defendants  ordered 
to  make  conveyance  of  the  premises  and  dis- 
charge the  chattel  mortgage.  The  defend- 
ants have  filed  a  cross-bill,  praying  that  the 
plaintiff  be  foreclosed  of  bis  equity  in  the 
premises.  The  decree  below  is  for  the  plain- 
tiff. It  was  held  in  Thorp  v.  Croto,  79  Vt 
390,  65  AU.  562,  10  L.  R.  A.  (N.  S.)  1166,  118 
Am.  St  Rep.  061,  9  Ann.  Cas.  58,  on  the  facts 
there  presented,  that  the  mortgagee  should 
bold  tbe  insurance  money  and  apply  it  to  ex- 
tinguish tbe  mortgage  debt,  including  inter- 
est, as  fast  as  tbe  same  became  due.  The 
plaintiff  claims  that  this  decision  is  conclu- 
sive In  his  favor.    The  defendant  does  not 


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(Vt 


question  the  correctness  of  the  decision,  but 
contends  that  the  two  cases  are  dearly  dis- 
tinguishable. 

[1-3]  The  relations  of  these  parties  at  the 
time  of  the  fire  were  those  of  vendor  and 
vendee,  under  a  contract  of  sale  which  pro- 
vided for  a  subsequent  transfer  of  the  title 
ou  the  making  of  certain  payments,  and  a 
contemporaneous  mortgage  of  the  premises  to 
the  vendor  to  secure  the  balance  of  the  consid- 
eration. But  the  rights  of  the  parties  are  the 
same  as  they  would  have  heen  if  the  fire  had 
occurred  after  the  conveyance;  other  condi- 
tions remaining  the  same.  This  was  in  law 
an  executory  contract,  which  left  the  legal 
estate  in  the  vendor;  but,  except  for  his  in- 
terest In  the  property  as  security,  the  vendor 
held  the  title  in  trust  for  the  vendee,  whom 
equity  regards  as  the  owner.  But  after  the 
transfers,  and  before  condition  broken,  the 
vendee  would  be  the  holder  of  the  legal  title 
and  estate,  and  the  vendor  would  have  his  se- 
curity in  the  form  of  a  mortgage.  So  the 
case  is  not  distinguished  from  Thorp  v. 
Croto  by  the  fact  that  the  latter  was  a  suit 
between  mortgagor  and  mortgagee. 

But  there  are  obvious  differences  between 
the  case  at  bar  and  Thorp  v.  Croto.  The 
facts  presented  in  the  Thorp  Case  disclose 
nothing  as  to  the  adequacy  or  inadequacy  of 
the  security,  and  no  question  as  to  the  suffi- 
ciency of  the  security  seems  to  have  been 
raised.  Nothing  Is  said  in  either  the  major- 
ity or  the  minority  opinion  regarding  the 
question  of  adequacy  as  a  matter  bearing 
upon  the  decision  rendered.  Here,  the  de- 
fendants refer  to  the  facts  reported  as  show- 
ing an  inadequacy  of  security,  and  claim  that 
this  inadequacy  distinguishes  the  case  from 
the  Thorp  Case. 

[4]  The  defendants  say  further  of  the 
Thorp  Case  that  "both  the  mortgagor  and 
mortgagee  were  willing  that  the  money  should 
be  applied  as  payment,  and  the  court  treated 
it  as  the  parties  did."  But  the  dissent  was 
put  upon  the  ground  that  the  mortgagee  was 
entitled  to  hold  the  insurance  money  In  place 
of  the  property  destroyed ;  so  this  aspect  of 
the  subject  must  have  entered  into  the 
court's  consideration  of  the  case.  The  cases 
are  alike  in  that  no  part  of  the  debt  was  due 
when  the  insurance  money  was  received,  but 
they  differ  as  to  the  terms  of  payment.  In 
the  Thorp  Case  there  was  no  provision  en- 
abling the  mortgagor  to  regulre  an  accept- 
ance of  payment  in  advance  of  its  becoming 
due.  Here  the  installments  of  the  purchase 
money  were  all  payable  on  or  before  the 
dates  specified,  so  that  the  entire  indebted- 
ness was  payable  at  once  at  the  option  of 
the  vendee;  and  the  vendors  were  directed 
"to  Immediately  apply  said  sum  •  •  • 
upon  the  payments  to  become  due  under  said 
contract." 

There  Is  another  difference  to  be  consid- 


ered in  connection  with  the  vendee's  option. 
In  the  Tborp  Ctise  there  was  no  intermediate 
condition  on  the  fulfillment  of  which  the  debt- 
or was  entitled  to  a  change  in  the  form  and 
substance  of  the  security.  Under  this  con- 
tract, the  payment  of  $1,500  of  the  purchase 
price  would  entitle  the  vendee  to  a  discharge 
of  the  mortgage  on  the  chattels,  and  to  a 
conveyance  of  the  title  to  the  realty  upon  his 
giving  a  mortgage  of  the  same  to  secure  the 
balance  of  the  debt  So  tltis  provision  for  an 
exercise  of  the  vendee's  option  divides  the 
principal  into  two  parts,  as  to  which  the 
rights  of  the  vendor  touching  the  security' 
are  not  identical. 

[5]  In  the  absence  of  an  agreement  for  a 
release  of  some  part  of  the  security  on  the 
payment  of  a  portion  of  the  debt  secured,  the 
creditor  is  entitled  to  retain  the  entire  secu- 
rity until  the  debt  is  fully  paid.  If  the  in- 
surance money  stands  in  place  of  the  proper- 
ty destroyed  it  goes  with  the  land,  and  re- 
tains in  equity  the  quality  of  indivisibility; 
and  the  creditor  is  entitled  to  retain  the  en- 
tire security  notwithstanding  the  change  in 
form  of  a  part  of  it.  This  would  require 
that  the  Insurance  money  be  held  for  an  ap- 
plication which  would  complete  the  payment 
of  the  debt.  The  question  then  arises  wheth- 
er the  vendee's  right  to  a  transfer  of  the  ti- 
tle and  discharge  of  the  chattel  mortgage  on 
the  payment  of  a  sum  less  than  the  entire 
debt,  in  connection  with  his  privilege  of  pay- 
ing a  part  or  all  of  the  notes  at  any  time  be- 
fore their  maturity,  entitles  him  to  use  the 
Insurance  money  to  complete  such  partial 
payment  We  think  not  A  part  of  the  notes 
could  not  be  paid  by  a  tender  of  funds  which 
the  creditor  was  entitled  to  hold  as  security 
for  the  payment  of  all  the  notes.  This  view 
accords  with  the  terms  and  nature  of  the 
provision  regarding  insurance.  The  vendee 
Is  to  keep  the  buildings  insured  for  the  bene- 
fit of  the  vendor.  The  Insurance  is  for  the 
benefit  of  both  parties,  but  Is  primarily  for 
the  benefit  of  the  vendor  as  security  holder 
of  the  property  insured,  and  inures  to  the 
benefit  of  the  vendee  through  the  reduction 
of  his  debt.  The  vendee  cannot  require  an 
application  of  it  which  would  give  him  the 
primary  benefit  and  leave  the  vendor  inade- 
quately secured.  The  application  must  be 
such  as  will  preserve  the  equities  of  the  ven- 
dor or  mortgagee  in  the  given  case.  Our 
disposition  of  the  question  presented  here  is 
not  inconsistent  with  the  decision  in  Thorp 
V.  Csoto  as  limited  by  the  facts  of  that  caae ; 
and  It  accords  with  the  court's  view,  else- 
where expressed,  that  the  proceeds  of  a  policy 
of  insurance  on  mortgaged  property  are  to  l>e 
substituted  for  the  property  destroyed.  Pow- 
ers V.  N.  B.  Fire  Ins.  Co.,  69  Vt  494,  38  AtL 
148. 

Decree  reversed  and  cause  remanded,  with 
direction  that  the  complaint  be  dismissed. 


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OASTEB  y.  SUBURBAN  WATER  <X). 


771 


an  ua.  u) 

CARTEB  T.  SUBURBAN  WATBE  CO. 
(No.  66.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Waters  and  Water  Covbses  <S=9203(13) — 
Shutting  off  Watsr  Supply  —  Injunc- 
tion. 

An  injunction  is  the  proper  remedy  to  pre- 
Tent  tlie  shutting  oS  of  water  by  a  water  com- 
pany where  the  consumer  denies  in  good  faith 
the  amount  of  the  charge. 

2.  Waters  and  Water  Courses  ©=»203(13)— 
Water  Company— Right  to  Shut  off  Wa- 
ter. 

Although  a  wa'ier  company  may  adopt  a 
nde  that  water  may  be  abut  off  for  nonpayment 
therefor,  it  cannot  arbitrarily  shut  oS  the 
consumer's  supply  where  the  amount  claimed 
is  a  matter  of  just  dispute. 

3.  Waters  and  Water  Coubsjes  <S=>208(e)— 
Water  Companies— Pubuo  Service  Com- 
missions—Jurisdiction. 

The  Public  Service  Commission,  under  Acts 
1910,  c.  180,  is  not  invested  with  power  to 
determine  controversies  between  defendant  wa- 
ter company  and  plaintiff  consumer  a*  to  cor- 
rectness of  the  bills  rendered. 

4.  Waters  and  Water  Courses  «=»203(13)— 
Refusal  to  Supply  Water— Jurisdiction. 

Although  it  be  conceded  that  the  Public 
Service  Commission  has  jurisdiction  in  esses  in- 
volving the  correctness  of  charges  for  water,  it 
could  not  deprive  a  court  of  equity  of  its  orig- 
inal jurisdiction  to  grant  an  injunction  for  re- 
fusal to  supply  water. 

Appeal  from  Circuit  Ctourt  of  Baltimore 
City ;   H.  Arthur  Stump,  Judge. 

BUI  by  John  F.  Carter  against  the  Sub- 
nrban  Water  Company.  EYom  an  order  dis- 
missing plaintiff's  bill  and  dissolving  the  in- 
Jiuictlon  Issued,  he  appeals.  Reversed,  with 
costs,  and  cause  remanded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 

burke;    pa'jctison,    uhner,    stocic- 

BRIDGB,  and  CONSTABLE,  JJ. 

Robert  Biggs,  of  Baltimore,  for  appellant 
Daniel  R.  Randall,  of  Baltimore  (R.  E.  Lee 
Marshall,  of  Baltimore,  on  the  brief),  for  ap- 
pellee. 

BURKE,  J.  John  F.  Carter,  the  appellant, 
is  the  owner  of  71  dwelling  houses,  which  are 
located  In  West  Arlington,  Baltimore  county, 
Md.,  on  certain  avenues  and  roads  mentioned 
in  the  bill  filed  in  this  case.  The  appellee 
is  a  public  service  conx>ratlon,  having  its 
principal  ottlce  in  Baltimore  city,  and  is  en- 
gaged in  the  bu&lness  of  furnishing  water  to 
the  appellant  and  many  other  property  own- 
ers in  and  at>out  West  Arlington.  The  71 
bouses  of  the  appellant  are  connected  with 
tbe  water  iqalns  of  the. appellee,  a^d  secure 
theix  supply  of  water  for  drinking  and  house- 
bold  purposes  from  them,  and  have  no  other 
source  of  supply  from  which  water  for  drink- 
ing and  bou^ebold  purposes  may  be  secured. 
During  tbe  quarter  ending  October,  30,  1916, 
tbe  defendant  repeatedly  failed  to  supply 
said  houses  with  a  suitable  quantity  of  water, 
and  the  appellant  was  subjected  to  damage 


and  loss  as  the  result  of  the  irregular  sup- 
ply of  water  furnished  by  tbe  appellee  to 
said  bouses.  On  the  1st  day  of  October,  1910, 
tbe  appellee  furnished  the  appellant  a  bUl, 
amounting  to  |29L42,  for  water  furnished 
said  housies.  The  appellant  disputed  tbe  bllL 
and  claimed  the  legal  right  to  deduct  there- 
from the  los6e8  sustained  by  him  as  the  re- 
sult of  the  failure  of  the  appellee  to  furnish 
an  adequate  supply  of  water  for  drinking 
and  household  purposes — 
"but  expressed  his  willingness  to  adjust  the 
said  accounts  with  the  defendant  and  to  pay  it 
such  sum  of  money  as  would  reasonably  and 
fairly  represent  the  proper  charges  for  the  serv- 
ices rendered  by  the  defendant;  that  the  said 
defendant,  however,  positively  refused  even  to 
consider  the  claim  of  your  orator,  and  also 
notified  your  orator  that  unless  the  said  bills 
as  rendered  are  paid  on  or  before  10  o'clock  on 
Tuesday  the  10th  day  of  October,  1916,  it 
would  cut  off  the  supply  from  all  the  said 
houses,  and  leave  them  and  the  tenants  therein 
without  any  supply  of  water  for  any  puri>ose 
whatever." 

Tbe  appellee  is  insolvent. 

The  bill  In  this  case  was  Sled  on  October 
9,  1916,  and  set  out  substantially  the  facts 
above  stated,  and  prayed  for  an  Injunction 
against  the  appellee,  Its  officers,  agents;  and 
servants,  restraining  them  from  cutting  off 
the  supply  of  water  from  the  houses  or  any 
of  them,  and  for  other  and  further  relief. 
An  injunction  was  Issued  on  October  0,  1916, 
as  prayed;  tho  appellant  flrst  having  tiled  an 
approved  bond  in  tbe  penalty  of  $2,000  as 
required  by  tbe  order  of  court.  On  December 
2,  1916,  tbe  defendant  demurred  to  tbe  blU 
upon  the  ground  that  tbe  plaintiff  "has  a 
plain,  adequate,  and  complete  remedy  at  law." 
On  tbe  6tb  day  of  February,  1917,  tbe  court 
passed  an  order  dismissing  the  bill  and  dis- 
solving tbe  injunction,  and  from  that  order 
this  appeal  was  taken.  The  appellant  filed 
an  approved  appeal  bond  which  operated  to 
suspend  the  effect  of  tbe  order. 

[1]  Tbe  single  question  presented  by  the 
appeal  is  this:  Upon  the  facts  stated  in  tbe 
bill,  was  tbe  plaintiff'  entitled  to  the  injunc- 
tion prayed  for?  It  is  to  be  observed  that 
this  Is'  not  a  simple,  and  perhaps  a  common 
case,  where  a  water  company  shuts  off  or 
threatens  to  shut  off  tbe  supply  of  water 
from  a  consumer  for  nonpayment  of  tbe 
amount  due  for  water  supplied^ 

[2]  It  is  now  well  settled  that  a  water 
company  may  adopt,  as  a 'reasonable  regula- 
tion for  the  conduct  of  its  business,  a  rule 
providing  that  the  water  supplied  to  a  cus- 
tooaer  may  be  shut  off  for  nonpayment  there- 
for. City  of  Mansfield  v.  Humphreys  Mfg.  Co., 
82  Ohio  St.  216,  92  N.  R,  238,  31  L.  R.  A.  (N. 
S.)  301, 19  Ann.  Gas.  842 ;  Shlras  v.  EWing,  48 
Kan.  170,  29  Pac.  820;  McDaniel  v.  Spring- 
field Waterworks  Co.,  48  Mo.  App.  273; 
Turner  v.  Revere  Water  Co.,  171  Mass.  329, 
50  N.  B.  634,  40  L,.  R.  A.  657,  68  Am.  St.  Rep. 
432.    But  it  is  a  case  of  dispute  aa  t»  the 


^sFor  otber  cases  see  ram*  topio  out  KBT-NTTUBER  In  all  Ker>MamiMred  DlgMt*  and  iBdszM 


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101  AOXiANTIO  REPOUTEB 


(Md. 


amount  dne,  wbere  tbe  appellant  bad  ex- 
pressed hlmseU  ready  and  willing  to  adjust 
and  pay  the  amount  for  which  he  Is  liable, 
and  where  the  company  declines  to  accept 
anything  less  than  the  amounts  of  the  blUs 
rendered,  and  threatens  to  shut  off  the  water 
<Hi  a  certain  day  unless  the  bills  are  paid. 
The  courts  appear  to  be  quite  uniform  In 
holding  that  a  water  company  cannot  ar- 
bitrarily shut  off  the  consumer's  supply  when 
the  amount  claimed  is  a  matter  of  Just  dis- 
pute. Cox  T.  aty  of  Cynthlana,  123  Ky.  36.3, 
96  S.  W.  456;  Wood  v.  City  of  Auburn,  87 
Me.  28T,  32  Atl.  906,  29  L.  R.  A.  376;  Turner 
V.  Revere  Water  Co.,  171  Mass.  329,  50  N.  £. 
634,  40  Li.  R.  A.  667,  68  Am.  St  Rep.  432. 

In  Poole  V.  Paris  Mountain  Water  Co.,  81 
S.  0.  438,  62  S.  S.  874,  128  Am.  St  Rep.  923. 
the  court  said: 

"While  a  public  service  water  company  has 
the  right  to  cut  off  a  consumer's  water  supply 
for  nonpayment  of  recent  and  just  bills  for  wa- 
ter rents,  and  may  refuse  to  engage  to  furnish 
further  supply  imtil  said  bills  are  paid,  the 
right  cannot  be  exercised  so  as  to  coerce  the 
consumer  into  paying  a  bill  which  is  unjust  or 
which  the  consumer  in  good  faith  and  with 
show  of  reason  disputes,  by  denying  him  such 
a  prime  necessity  of  liiEe  as  water,  when  he 
offers  to  comply  with  the  reasonable  rules  of 
the  company  aa  to  such  supply  for  the  current 
term." 

The  same  principle  Is  announced  In  Wash- 
ington r.  Washington  Water  Co.,  70  N.  J. 
Bq.  264,  62  Atl.  390.  That  an  injunction  is 
the  proper  remedy  to  prevent  the  shutting  off 
of  the  water  in  cases  where  the  consumer 
denies  in  good  faith  either  his  liability  or 
the  amount  of  the  charge  appears  to  be  well 
established  by  the  authorities.  Edwards  v. 
MllledgevlUe  Water  Co.,  116  Ga.  201,  42  S. 
El  417;  McEntee  v.  Kingston  Water  Ca,  16.5 
N,  Y.  27,  68  N.  B.  785;  American  Conduit 
Co.  V.  Kensington  Water  Co.,  234  Pa.  208, 
83  Atl.  70. 

The  occupants  of  these  houses  mu&t  have 
water  dally  and  hourly.  It  Is  a  prime  ne- 
cessity of  comfort  and  health,  and  to  suddenly 
shut  off  the  water  in  order  to  coerce  the  own- 
er to  pay  an  unjust  or  a  disputed  bill  would 
be  not  only  a  violation  of  his  legal  rights, 
but  would  subject  bliu  to  serious  Injury,  and 
sndi  Injury  as  the  owner  would  likely  sus- 
tain before  he  could  be  compensated  In  au 
action  at  law  even  against  a  solvent  corpora- 
tion is  sufficient  to  furnish  the  equity  for  an 
application  for  an  injunction.  In  Sickles  v. 
Manhattan  Oas  light  Ca,  64  How.  Prac. 
(N.  Y.)  33,  It  appears  that  Gen.  Sickles  ap- 
plied for  an  Injunction  to  restrain  the  de- 
fendant from  cutting  off  the  supply  of  gas 
from  his  residence.  He  alleged  that  an  Im- 
proper bill  had  been  presented  to  him,  and 
that  he  had  offered  to  pay  for  the  gas  con- 
sumed, but  that  the  company  refused  to  ac- 
cept and  threatened  to  remove  the  meter  and 
shut  off  the  gas.    Upon  these  facts  the  court 


held  that  he  was  entitled  to  a  preliminary 
injunction. 

[3, 4]  It  is  contended  that  the  PabUc  Serv- 
ice Commission,  under  Acts  1910,  c.  180,  has 
exclusive  Jurisdiction  over  the  subject-mat- 
ter of  this  suit,  and  has  the  power  to  grant 
the  plaintiff  full  and  complete  relief.  We  do 
not  find  that  the  Public  Service  Commission 
is  invested  with  the  power  to  hear  and  de- 
termine the  controversy  between  the  parties 
as  to  the  correctness  of  the  bills  rendered,  or 
to  determine  what  amount  the  plaintiff  owes. 
But  if  that  power  be  conceded,  the  court  of 
equity  would  not  for  that  reason  be  deprived 
of  its  original  Jurisdiction  to  grant  the  in- 
JunctloD.  It  has  been  long  since  settled  that, 
where  a  court  of  equity  has  original  Juris- 
diction, and  a  statute  confers  upon  the  com- 
mon-law courts  a  similar  power,  the  Jurisdic- 
tion of  equity  is  not  thereby  ousted.  Barnes 
V.  Compton,  8  Gill,  398;  Shryock  v.  Morris, 
76  Md.  72,  23  Atl.  68. 

Order  reversed,  with  costs,  and  cause  re- 
manded. 


HUBBARD  V.  HUBBARD. 


aa  UA.  ao 
(No.  48.) 


(Court  of  Appeals  of  Maryland.    June  28, 
19170 

1.  HnsBANn  AND  Wife  «=»297— Action  fob 
Alimony— Evidence— SurnciENCT. 

In  a  suit  for  alimony,  held,  under  the  ev- 
idence, that  after  the  dismissal  of  a  prior  bill 
for  divorce  there  was  at  least  a  partial  recon- 
ciliation followed  by  the  husband's  leaving  and 
not  returning. 

2.  Husband  and  Wifb  «s3288  —  Smr  fob 
Alimont — Defense. 

That  the  wife  had  her  husband  arrested,  and 
when  they  were  before  the  magistrate  had  ask- 
ed, in  anticipation  of  the  husband's  returning 
to  their  home,  to  l>e  afforded  police  protection, 
would  not  justify  a  total  failure  to  make  any 
provision  for  the  support  of  the  wife  barring 
her  suit  for  alimony. 

3.  Husband  and  Wife  «=>298(3)— EIxcbsbivb 
Allowance  or  Alimont. 

Where  a  husband  had  a  weeldy  drawing 
account  as  salary  of  $20  a  week,  an  allowance 
to  the  wife  of  $3  a  week  permanent  alimony 
cannot  be  said  to  be  unreasonable. 

Appeal  from  Circuit  Court  of  Baltimor* 
City;  Walter  I.  Dawklns,  Judge. 

Bill  by  Florence  Hubbard  against  WilUam 
J.  Hubbard,  Sr.  Decree  for  plaintiff,  and  de- 
fendant appeals.     Affirmed,  with  costs. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  UB- 
NBR,  STOCKBRIDGE,  and  CONSTABLE, 
JJ. 

Harry  0.  Kalben  and  David  Ash,  both  of 
Baltimore,  for  appellant  James  Fluegel.  of 
Baltimore,  for  appellee. 

STOCKBRIDGE,  J.  On  the  27th  of  May, 
1915,  a  decree  was  passed  In  a  case  between 
the  same  parties  as  those  who  are  parties  to 
this  record,  upon  a  bill  filed  originally  as  a 
bill  for  alimony,  and  subsequently  by  amend- 


sVar  otter  cum  m*  nn*  topio  and  KBT-IfDItBEB  In  all  K«j-Numb«rt4  DtgnU  and  ladUM 


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HOBBARD  ▼.  HUBBABXI 


773 


ment  converted  Into  a  bill  for  divorce  a  men- 
sa  et  tboro.  Three  days  after  the  entry  of 
the  decree  In  that  case  an  appeal  was  taken 
to  this  court,  and,  the  case  having  been  heard 
here,  the  decree  of  the  circuit  court  No.  it 
of  Baltimore  dty  was  affirmed  on  January 
21,  1916. 

Shortly  following  the  decree  of  the  circuit 
court  No.  2  of  Baltimore  city,  to  wblch  ref- 
erence has  Just  been  made,  namely,  on  July 
1,  1915,  Mrs.  Hubbard  swore  out  a  warrant 
for  the  arrest  of  her  husband,  charging  de- 
sertion and  nonsupport.  Mr.  Hubbard  was 
absent  from  the  dty  at  the  time,  and  did 
not  return  to  Baltimore  until  about  the  mid- 
dle of  that  month.  Immediately  upon  hla 
return  he  surrendered  himself,  and  the  case 
was  set  for  a  bearing  on  the  19th  or  20th  of 
July.  When  the  matter  was  taken  up  be- 
fore the  magistrate  there  appears  to  have 
been  some  discussion  relative  to  a  possible 
reconciliation  between  the  parties,  and  with- 
out final  action  there,  either  upon  the  theory 
of  a  lack  of  Jurisdiction  on  the  part  of  the 
magistrate  or  for  some  other  reason,  the 
case  was  sent  to  the  grand  Jury,  which  sub- 
sequently found  an  Indictment.  The  crimi- 
nal proceeding  does  not  appear  to  have  been 
pushed  to  a  conclusion,  but  was  settled  by 
the  state's  attorney  without  prejudice  to  the 
assertion  of  the  rights  of  the  parties  In  an 
equity  court 

On  September  28,  1916,  the  bUl  of  com-/ 
plaint  In  this  case  was  filed.  It  contains 
three  prayers:  The  first,  for  alimony  pen- 
dente lite  and  permanent  alimony;  the  sec- 
ond, for  an  injunction  to  restrain  Mr.  Hub- 
terd  from  disposing  of  certain  household  ef- 
fects and  furniture;  and,  third,  the  general 
prayer  for  relief. 

The  evidence  consists  largely  of  the  testi- 
mony of  the  parties  to  this  suit,  and  Is  con- 
tradictory on  material  points.  It  would  be 
idle  to  attempt  to  reconcile  their  stories,  or 
account  for  the  discrepandes  by  any  suppos- 
ed lapse  of  memory.  The  alleged  foundation 
for  Mrs.  Hubbard's  suit  Is  this:  That  some 
-time  during  the  month  of  July,  1915,  or  ap- 
proximately two  months  after  the  dismissal 
of  her  former  bill  for  a  divorce,  and  after 
the  hearing  before  the  magistrate  of  the  pro- 
ceeding Instituted  because  of  the  nonsupport, 
Mr.  Hubbard  did  return  to  the  house  on 
Madison  avenue,  which  belonged  to  the  par- 
ties, and  although  not  occupying  the  same 
room  with  bis  wife,  did  during  some  week 
or  ten  days  take  his  meals  or  some  of  them 
with  his  wife  and  others  who  were  staying 
at  the  bouse,  thereby  effecting  at  least  a  par- 
tial reconciliation  of  the  parties. 

Mr.  Hubbard,  on  the  other  hand,  denies 
most  emphatically  that  he  ever  took  a  meal 
at  the  bouse  or  stayed  In  the  house  over 
nlgbt,  and  Insists  that  the  various  witnesses 
who  testified  to  his  presence  there  were  mis- 
taken In  their  estimates  of  time  by  at  least 
one  year.  He  does  admit  that  he  paid  a 
brief  visit  to  the  bouse  for  the  purpose  of 


getting  some  of  his  clothing,  but  Insists  that 
that  was  all,  and  that  the  total  length  of 
time  that  he  was  so  In  the  house  was  very 
brief. 

In  the  course  of  the  examination  It  was 
admitted  (record,  page  28)  by  the  counsel  for 
Mr.  Hubbard  that  there  was  nothing  to  pre- 
vent him  from  going  home.  Of  the  conflict- 
ing statements  made  by  Mr.  and  Mrs.  Hub- 
bard, there  Is  no  corroboration  of  Mr  Hub- 
bard's version.  On  the  other  hand,  Mrs. 
Hubbard  Is  supported  by  the  testimony  of 
the  son  ^f  the  parties,  though  apparentlv 
some  anlmuH  existed  between  the  father  and 
son. 

There  is  further  corroboration  from  three 
apparently  disinterested  witnesses,  a  Mrs. 
Overley,  who  spent  a  considerable  length  of 
time  in  the  house  in  1915,  and  who  details 
with  particularity  the  events  and  actions  of 
Mr.  Hubbard  in  the  house  during  that  week 
or  ten  days,  at  the  expiration  of  which  he 
left  and  did  not  thereafter  return. 

Mr.  and  Mrs.  Haas  were  neighbors,  living 
on  Madison  avenue.  Their  testimony  Is  to 
the  effect  that,  while  neither  of  them  saw 
Mr.  Hubbard  In  the  house,  yet  Mrs.  Haas 
saw  him  entering  the  house,  and  Mr.  Haas 
saw  him  In  the  Immediate  neighborhood  and 
bad  a  short  conversation  with  him. 

[1]  The  preponderance  of  testimony  there- 
fore is  to  the  effect  that  after  the  dismissal 
of  the  prior  bill  there  was  at  least  a  partial 
recondllation  of  the  parties,  followed  by  Mr. 
Hubbard's  leaving  the  home,  and  that  he 
has  not  since  returned  to  It 

Upon  one  point  the  evidence  of  the  parties 
to  the  case  is  In  entire  accord,  namely,  that 
since  the  decree  of  May  27,  1915,  Mr.  Hub- 
bard has  contributed  nothing  whatever  to 
the  support  or  maintenance  of  his  wife. 

The  right  of  a  wife  to  look  to  her  husband 
for  support  and  to  maintain  a  bill  In  equity 
therefor,  where  the  parties  are  not  living 
together,  and  that  through  no  fault  of  the 
wife.  Is  too  firmly  established  tn  the  law  of 
this  state  to  call  at  this  time  for  any  dis- 
cussion or  extended  dtation  of  authorities. 
Wallingsford  v.  Walllngsford,  6  Har.  &  J. 
485;  McCuriey  v.  McCurley,  60  Md.  185,  45 
Am.  Rep.  717. 

[2]  The  only  pretext  upon  which  Mr.  Hub- 
bard relied  tn  his  testimony  to  Justify  his 
failure  to  rettum  to  his  wife,  or  to  fall  to 
provide  her  with  a  proper  allowance  for  her 
support  was  that  she  had  had  him  arrested, 
and  that  when  the  parties  were  before  the 
magistrate  she  had  asked  In  anticipation  of 
his  returning  to  their  home  to  be  afforded 
police  protection,  but  such  reasons,  however 
galling  they  may  have  been  to  the  husband's 
pride,  cannot  be  relied  upon  as  Justifying  a 
total  failure  to  make  any  provision  what- 
ever for  the  support  of  the  wife. 

[3]  A  large  amount  of  the  testimony  taken 
at  the  trial  of  this  case  was  dlreded  to  the 
capadty  of  the  husband  to  support  his  wife, 
and   the   details   of   bis   business   and   the 


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amoitnt  received  by  him  from  it  were  gone 
into  at  great  length.  The  facts  upon  the  un- 
contracted  evidence  of  this  branch  of  the 
case  show  that  he  was  conducting  a  relatfve- 
ly  small  business  in  the  shipping  and  selling 
of  oysters,  and  that  the  profits  at  the  close 
of  the  year  were  trifling  In  amount  In 
reaching  this  result  there  were  deducted  a!! 
a  part  of  the  expenses  of  the  business  week- 
ly payments  to  the  defendant  as  salary  of 
$20,  to  his  bookkeeper  of  $18,  a  foreman,  $15, 
and  a  driver,  $11.  Without  stopping  to  con- 
sider or  discuss  whether  this  weekly  salary 
list  was  or  was  not  out  of  proportion  to  the 
amount  of  business  done,  the  important  fact 
is  that  Mr.  Hubbard  had  a  weekly  drawing 
accotmt  as  salary  of  $20. 

The  decree  from  which  this  appeal  was 
taken  awards  Mrs.  Hubbard  the  sum  of  $3 
per  week  as  permanent  alimony,  less  than 
one-fourth  of  the  earning  capacity  of  the 
husband,  as  shown  by  the  salary  whldi  he 
was  drawing.  Such  an  allowance  of  alimony 
cannot  be  said  to  be  unreasonable  iRlcketts 
V.  Rlcketts,  4  Gill,  105;  Harding  v.  Hard- 
ing, 22  Md.  337);  and  since  an  allowance  for 
alimony  Is  subject  to  be  Increased  or  di- 
minished by  the  court  making  It,  according 
to  the  altered  condition  of  the  parties  as  they 
may  from  time  to  time  exist,  no  reason  is 
apparent  for  disturbing  the  decree  of  the  cir- 
cuit court  for  Baltimore  dty,  and  that  de- 
cree will  accordingly  be  affirmed. 

Decree  affirmed,  with  costs. 


(131  Md.  no) 

BRADFX>RD  et  al.  v.  MACKENZIE!  et  al. 
(No.  70.) 

(Court  of  Appeals  of  Maryland.    Jnoe  28, 1917.) 

1.  Wills  (^35!)7(1)— Constbtjction— Pee. 

Under  a  will  devising  the  residue  of  testa- 
tor's property  equally  among  his  wife  and  his 
seven  surviving  children,  "their  heirs,  execu- 
tors and  assigns."  share  and  share  alike,  the 
use  of  such  words  was  not  controlling  as  to 
whether  the  devisees  took  a  fee  simple. 

2.  Wills  ©=>622— Remaindeks  — Peecedent 
Estate— Pkk. 

A  remainder  cannot  be  limited  upon  a  fee 
simple. 

3.  Wills   ®=5<>25— Executobt   Devise— Pee- 
CEDENT  Estate. 

An  executory  devise  can  be  limited  after  a 
fee  simple. 

4.  Wills  «=»54S— Constbuction- Executobt 
Devise. 

Under  a  will  devising  a  residue  to  testator's 
wife  and  his  seven  surviving  children,  their 
heirs,  executors,  and  essigns,  and  on  the  death 
of  any  child  intpstate  and  without  living  issue 
devising  his  share  over  to  the  surviving  devisees, 
the  share  of  a  son  bo  dying  vested  iu  the  testa- 
tor's surviving  children,  to  the  exclusion  of  the 
children  of  a  daughter  dying  intestate  before  the 
son. 

Appeal  from  Circuit  (3ourt,  Baltimore 
County;   Frank  I.  Duncan,  Judge. 

Bill  by  Thomas  Mackenzie,  committee,  and 
others  against  Samuel  W.  Bradford  and  oth- 
ers.    Decree  for  plalntlfCs,   and   defendants 


appeal.  Decree  reversed,  and  cause  re- 
manded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGE,  and  CONSTABIJJ,  JJ. 

Harry  S.  Carver,  of  Bel  Air,  for  appel- 
lants. Ralph  Robinson,  of  Baltimore,  and 
Edward  H.  Burke,  of  Towson,  for  appellee 
children  of  Mrs.  McElderry.  Gerald  F.  K(h;>p, 
of  Baltimore,  for  Emeline  K.  Bradford. 
Thomas  Mackenzie,  of  Baltimore,  for  com- 
mittee and  trustee. 

BOYD,  C.  J.  The  main  question  involv- 
ed In  this  case  Is  the  proper  construction  of 
the  residuary  clause  of  the  will  of  the  late 
Augustus  W.  Bradford,  a  former  Governor 
of  this  state.    That  clause  is  as  follows: 

"A.  I  give  and  bequeath  all  the  rest  and  resi- 
due of  my  property,  real,  personal  and  mixed, 
after  the  payment  of  any  debts  I  may  be  owing 
at  the  time  of  mv  death,  to  be  equally  divided 
among  m^  wife  aforesaid  and  my  said  seven  sur- 
viving children,  to  wit:  Emetine  K.  Bradford, 
Jane  B.  Bradford,  Augustus  W.  Bradford,  J«m- 
ior,  Charles  H.  Bradford,  Elizabeth  Bradford, 
Thomas  Kell  Bradford  and  Samuel  Webster 
Bradford,  their  heirs,  executors  and  assigns 
share  and  share  alike. 

"B.  I  do  hereby  further  direct  and  declare 
that  BO  far  as  concerns  the  female  devisees 
above  mentioned  the  portions  so  devised  to  them 
respectively  shall  be  for  the  sole  and  separate 
use  of  each  of  them  and  absolutely  free  and 
discharged  from  any  interest  or  estate  therein 
lof  any  husband  whom  either  of  them  may  here- 
after marry  and  in  no  way  subject  to  his  di- 
rcction  or  control  or  liable  for  hu  debts  or  en- 
gagements. 

"C.  I  do  further  will  and  declare  that  should 
either  of  my  said  seven  children  incladed  in  the 
aforesaid  devises  die  intestate,  whether  in  my 
lifetime  or  afterwards,  and  leaving  no  issue 
living  at  the  time  of  their  death,  or  should  my 
wife  die  intestate,  then  the  share  or  portion  of 
the  one  so  dying  shall  survive  to  and  vest  in  the 
surviving  devisees  aforesaid  share  and  share 
alike." 

For  conrenienoe  of  reference  we  hav<! 
marked  those  paragraphs  In  the  residuary 
clause  A,  B,  and  C,  although  those  letters 
do  not  appear  in  the  wUl.  By  prior  provl- 
sions  In  his  will  the  testator  had  left  to  his 
wife  his  house  and  lot  on  Eutaw  place  In  the 
city  of  Baltimore,  together  with  all  the 
household  furniture,  linen,  pictures,  and 
plate  therein  contained  (excepting  a  set  or 
plate  described)  for  life,  and  after  her  death 
to  pass  into  the  residue  of  his  estate  and  be 
with  that  residue  equally  divided  as  direct- 
ed. He  then  naade  bequests  to  three  of  bis 
sons  of  personal  property  and  $50  to  each  of 
his  three  daughters  and  the  same  amount  to 
his  son  Charles  H. 

Gov.  Bradford  died  March  1,  1881,  learlng 
a  widow  and  the  seven  children  named  in  the 
residuary  clause.  Mrs.  Bradford  (the  wid- 
ow) died  December  27,  18d4,  leaving  a  last 
will  and  testament  Jane  B.  Bradford  died 
unmarried  and  without  Issue  on  February  27. 
1905,  but  left  a  will.  Thomas  Kell  Brad- 
ford  died   July   14,   1906,  Intestate,  unmar- 


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rled,  and  wltboat  Issue;  Elizabeth  Brad- 
ford married  Thomas  McElderry,  who  pre- 
deceased his  wife,  and  she  died  June  9, 1915, 
intestate,  and  leaving  four  clilldren,  all  of 
whom  are  of  age  except  Sarah,  and  are  par- 
ties to  this  bill.  Charles  H.  Bradford  died 
January  6,  1916,  Intestate,  unmarried,  and 
without  issue.  Augustus  W.  Bradford,  Jr., 
and  Emeline  K.  Bradford  are  still  living,  and 
both  are  unmarried,  and  Samuel  W.  Brad- 
ford is  still  living,  but  is  married  and  has 
living  issue.  The  three  living  children  of 
the  testator  claim  the  estate  left  by  Charles 
H.  Bradford,  while  the  children  of  Mrs.  Mc- 
Elderry claim  they  are  entitled  to  a  fourth 
Interest  in  It 

If  paragraph  A  stood  alone,  it  could  not 
be  doubted  that  the  wife  and  seven  children 
took  the  real  estate  in  the  residuary  clause 
in  fee  simple  and  the  entire  personalty. 
Paragraph  B  tends  to  confirm  that  construc- 
tion. The  controversy  arises  by  reason  of 
paragraph  G.  As  Charles  H.  Bradford  died 
Intestate  and  left  no  issue,  it  becomes  neces- 
sary to  ascertain  the  effect,  if  any,  of  para- 
graph 0  on  paragraph  A. 

Paragraph  C  was  only  Intended  to  take  ef- 
fect In  case  of  a  child  of  the  testator  dying 
Intestate  and  leaving  no  issue.  In  determin- 
ing the  effect  of  that  paragraph,  it  must  be 
borne  in  mind  that  it  is  clear  that  the  testa- 
tor intended  to  connect  it  and  paragraph  B 
vrlth  paragraph  A.  Indeed,  paragraph  B  is 
relied  on  by  Uie  appellees  in  support  of  their 
contention.  It  begins,  "I  do  hereby  further 
direct  and  declare,"  etc.,  and  then  paragraph 
C,  which  immediately  follows,  begins,  "I  do 
further  will  and  declare,"  etc  It  was  evi- 
dently Intended  to  be  something  more  than 
a  mere  expression  of  a  wish,  desire,  or  direc- 
tion, such  as  is  spoken  of  as  precatory  lan- 
guage. All  of  those  paragraphs  were  in- 
tended to  be  taken  together  in  reference  to 
the  residuary  devises  and  bequests,  and,  as 
we  have  seen,  were  not  separated  by  the  let- 
ters A,  B,  and  C. 

[1]  It  may  be  well  to  recall  that  the  use  of 
the  words  "their  heirs,  executors  and  as- 
signs" in  paragraph  A  Is  not  controlling. 
In  Devecmon  v.  Shaw,  70  Md.  219,  225,  16 
Atl.  645,  647,  Judge  Alvey  referred  to  what 
is  section  327  of  article  93  of  Annotated  Code 
to  show  that  the  daughter  took  a  fee  simple 
In  the  real  estate  without  the  use  of  the 
words  "to  her  and  her  heirs  or  to  her  In  fee 
simple,''  and  he  said  she  also  took  the  en- 
tire Interest  in  the  personalty,  but,  as  we 
will  see  later,  held  that  the  fee  simple  was 
defeasible  and  the  interest  in  the  personalty 
was  subject  to  the  contingencies  sped&ed. 
So  In  Anderson  y.  Brown,  84  Md.  261,  35  Atl. 
937,  also  referred  to  later,  the  devise  was, 
"To  them  and  their  heirs  and  assigns  for- 
ever." 

[2,  3]  What  effect,  then,  did  paragraph  C 
have  on  the  devise  and  bequest  given  Charles 
H.  Bradford  by  paragraph  A?  It  is  clear 
that  there  was  no  remainder,  as  a  remain- 


der cannot  be  limited  after  a  fee  simple  (HIU 
V.  Hill.  5  Gill.  &  J.  87;  40  Cyc.  641;  24  Am. 
&  Eng.  Ency.  of  Law,  380),  but  that  Is  not 
80  with  an  executory  devise,  and  hence  we 
must  determine  whether  paragraph  C  was 
a  valid  executory  devise,  or  made  the  estato 
given  by  paragraph  A  defeasible  upon  the 
happening  of  the  contingencies  specified. 

[4]  In  11  R.  C.  L.,  under  the  article  "Ex- 
ecutory Interests,"  the  subject  is  discussed 
under  different  heads.  Section  16  of  that 
article  on  page  476  Is  on  "Liroitation  Repug- 
nant to  Gift  veith  Absolute  Power  of  Dla- 
posaL"    It  is  there  said: 

"Indestructibility  is  an  essential  element  of 
executory  limitation,  and  an  nnlimited  power  of 
disposition  in  the  firet  taker  is  clearly  incongru- 
ous with  this  idea,  bein^  ipso  facto  a  destruc- 
tion of  the  execntory  limitation,  whether  tho 
power  is  exercised  or  not  In  this  construc- 
tion no  distinction  is  made  between  goods  and 
land,  but  if  the  primary  fift  vests  in  the  first 
taker  an  absolute  interest  in  personal,  or  an  ab- 
solute fee  simple  in  real,  property,  it  exhausts 
the  entire  estate,  so  that  there  can  be  no  valid 
remainder.  Thus  where,  an  absolute  gift  to  a 
person  is  followed  in  the  same  instrument  by  a 
gift  over  in  case  of  that  person  dying  intestate, 
or  without  having  disposed  of  the  property,  the 
gift  over  is  said  to  be  repugnant  and  is  void. 
When  there  is  an  absolute  or  unlimited  devise 
or  bequest  of  property,  a  subsequent  clause  ex- 
pressing a  wish,  desire  or  direction  for  its  dis- 
position after  the  death  of  the  devisee  or  legatee 
will  not  defeat  the  devise  or  bequest  nor  limit 
the  estate  or  interest  in  the  property  to  the 
right  to  possess  and  use  during  the  life  of  the 
devisee  or  legatee.  The  absolute  devise  or  be- 
quest stands,  and  the  other  clause  is  to  be  re- 
garded as  presenting  precatory  language.  The 
will  must  be  interpreted  to  invest  in  the  devisee 
or  legatee  the  fee-simple  title  of  the  land,  and 
the  absolute  property  in  the  subject  of  the  be- 
quest. In  the  case  of  executory  devises,  the 
question  whether  the  primary  gift  is  in  fee,  so 
as  to  exhaust  the  entire  estate,  is  in  each  caso 
to  be  decided  on  a  careful  examination  of  the 
entire  will,  aided  by  legitimate  extrinsic  evi- 
dence, to  ascertain  the  actual  intent  of  the  testa- 
tor, which  intent,  when  so  discovered  and  made 
obvious,  is  controlling." 

Section  17  of  that  article  Is  on  "Limitation 
Over  After  Life  Estate  with  Power  of  Dis- 
posal." Section  18  is  In  reference  to  "Lim- 
itations tending  to  Create  Perpetuities  Gen- 
erally," and  section  19  as  to  "Limitations 
over  on  Failure  of  Issue."  In  the  case  of 
Benesch  v.  Clark,  49  Md.  497,  relied  on  by 
the  lower  court,  it  was  held  that  Mrs.  Bram- 
ble only  took  a  life  estate  in  the  Monument 
street  tots,  vitb  the  power  of  disposition,  and 
that  the  power  was  effectually  executed  by  a 
deed  of  assignment  That  case  turned  on 
the  question  -whether  there  was  a  valid  ex- 
ecution of  the  power.  While  It  Is  true  that 
the  language  of  the  power  there  was  that  tho 
lots  were  to  be  disposed  of  as  the  life  tenant 
might  see  fit  at  his  decease,  and  the  court 
held  that  the  execution  of  the  power  was  not 
limited  to  a  last  will  and  testament,  but  the 
assignment  of  the  leasehold  property  was 
valid,  the  court  did  not  hold  that  the  power 
to  dispose  of  the  property  by  will  necessarily 
Includes  the  power  to  dispose  of  It  by  deed. 
As  shown  by  the  dl&xmsslon  of  the  cases  cited 


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(Md. 


by  Judge  Alvey,  tt  depends  largely  upon  the 
language  of  the  donor  of  the  power.  We  do 
not  understand  the  rule  to  be  as  announced 
In  the  ophiloD  of  the  lower  court  that  "a  gen- 
uine poiver  to  dispose  of  an  estate  by  will 
includes  also  a  power  to  dispose  of  it  by 
deed,"  although  such  a  power  may  be  so 
worded  as  to  Include  a  power  or  disposition 
by  deed.  But  this  is  not  a  case  of  whether  a 
power  has  been  validly  exercised,  but  wheth- 
er the  limitation  sought  to  be  imposed  is 
valid.  There  is  not  even  an  express  power 
given  to  dispose  of  the  property  by  will,  al- 
though, as  one  of  the  Limitations  is  d,ring  in- 
testate, it  must  be  Inferred  that  the  testa- 
tor intended  that  the  devisees  could  dispose 
of  their  Interests  by  wUl,  but  it  would  ba 
difficult  to  construe  this  language  into  a  pow- 
er to  dispose  of  the  property  by  deed.  Of 
course  If  he  left  the  real  properly  in  fee  aud 
the  personalty  absolutely,  without  any  valid 
limitations,  the  devisees  could  convey  the 
property  by  deed,  or  as  they  saw  proper,  but 
that  is  not  the  question  we  are  now  consider- 
ing. 

Section  10  of  R.  C.  L.,  already  referred  to, 
begins  by  announcing  a  rule,  which  seems  to 
be  a  very  geuernl  one,  that: 

"It  is  well  settled  that  while  an  executory 
limitation  to  take  effect  on  a  de6nite  failure  of 
issue  in  the  first  taker  is  valid,  yet  a  limitation 
to  take  effect  on  a  general  or  indefinite  failure 
of  issue  is  void." 

Most  of  the  rest  of  the  section  is  taken  up 
with  the  discussion  of  what  Is  a  definite  or 
indefluite  failure  of  issue,  but  there  can  be 
DO  such  question  in  this  case.  The  will  it- 
self says,  "leaving  no  Issue  living  at  the  tl)nos 
of  their  death,"  and  the  act  of  18C2,  chapter 
lAl,  now  section  332  of  article  03  ol  the  Ck>de, 
provides  that  expressions  such  as  "die  with- 
out is6iue,"  etc.,  "sliuU  be  construed  to  mean 
a  want  or  failure  of  issue  in  the  lifetime,  or 
at  the  death  of  such  person,  and  not  an  in- 
definite failure  of  bis  issue,  uuleiis  a  contrary 
intention  shall  appear  by  the  wllL"  A  sim- 
ilar provlsloi  In  reference  to  deeds  is  now  in 
section  90  of  article  21.  Combs  v.  Combs, 
67  Md.  11,  8  AU.  737,  1  Am.  St  Rep.  359,  is 
one  of  the  casus  cited  in  the  note  to  section 
19  of  11  R.  C.  li.,  above  referred  to,  to  show 
that  In  some  states  statutes  have  been  passed. 
That  case  is  relied  on  by  the  appellees  to 
show  that  paragraph  C  was  invalid  to  alTect 
paragraph  A,  but  there  the  property  was  de- 
vised to  the  devisees  with  full  authority — 
"to  sell  and  convey  the  same  in  his  lifetime,  or 
to  dispose  of  the  same  by  last  will  and  testa- 
ment; but  should  he  die  without  issue  of  the 
body  lawfully  begotten,  and  without  having  dis- 
posed of  the  same  by  sale,  or  by  last  will  and 
testament,  either  in  whole  or  in  part,  then  I 
give  and  devise  my  said  estate,  both  real  and 
personal,  or  the  part  remaining  as  above  undis- 
posed of,  to  my  cousins,"  etc 

Of  course,  that  limitation  was  held  to  be 
void,  as  the  gift  to  the  first  taker  was  ab- 
solute and  unqualified.     It  was  there  said 


that  an  executory  devise  may  be  limited  aft- 
er a  fee  simple,  but  in  such  case,  the  former 
must  be  made  determinable  on  some  contin- 
gent event  In  this-  case  there  was  a  fee,  bnt 
it  was  determinable  on  the  contingency  of 
dying  intestate  and  leaving  no  issue  living  at 
the  time  of  the  death  of  the  devisee,  "the 
share  or  portion  of  the  one  so  dying  shall 
survive  to  and  vest  in  the  surviving  devisees 
aforesaid  share  and  share  alike." 

In  the  case  of  Anderson  v.  Brown,  Si.  Md. 
261,  36  AtL  937,  the  testator  left  real  esUte 
to  his  wife  80  long  as  she  should  live  or  re- 
main a  widow,  and  at  her  death  or  marriage 
he  left  to  his  eight  children  named — 
"the  aforesaid  real  estate  to  them  and  their 
heirs  and  assigns  forever,  and  in  case  of  the 
death  of  any  one  of  them  without  issue  living  at 
the  time  of  his  or  her  death,  I  do  give  and  de- 
vise his  or  her  share  to  the  survivor  or  surviv- 
ors, and  this  principle  of  survivorship  I  do  di- 
rect to  apply  to  any  and  all  accumulations  by 
survivorship,  not  only  to  the  original  shares, 
but  to  all  accretions  by  survivorship  until  the 
death  of  any  and  all  of  such  children  as  may  die 
without  issue  at  the  time  of  his  or  her  death." 

It  was  there  held,  quoting  from  the  sylla- 
bus for  convenience: 

"First.  That  the  devisees  took  estates  in  fee, 
as  tenants  in  common,  defeasible  as  to  each 
upon  his  or  her  death  without  issue,  in  which 
event  the  share  of  the  person  so  dying  passed 
to  the  survivors,  so  that  the  last  survivor  took 
his  estate,  including  that  which  survived  to  him 
in  fee,  absolutely.  Second.  That  it  was  not 
the  intention  of  the  testator  that  in  the  case  of 
the  death  of  one  child  without  issue,  his  share 
should  go  in  part  to  the  issue  of  pre-decea.sed 
children,  but  nothing  could  pass  to  the  issue 
of  a  pre-deceased  child  except  that  which  the 
parent  was  entitled  to  at  the  time  of  his  death. 
Third.  That  the  word  'survivor*  as  used  in  the 
will  meant  the  survivors  of  the  children  named 
as  devisees,  and  did  not  include  the  issue  of  a 
deceased  child  as  a  surviving  line  of  heira" 

That  case  is  as  nearly  analogous  to  this 
as  we  could  expect  to  find. 

In  Devecmon  v.  Shaw  et  al.,  70  Md.  219, 
16  Atl.  645,  the  opinion  of  Judge  Alvey  filed 
in  the  lower  court  was  adopted  by  this  court. 
•Phe  testator  after  providing  for  his  wife,  and 
after  making  certain  devises  and  bequests  to 
his  daughter  without  limitations  or  restric- 
tions, added  the  provision: 

"But  in  case  my  said  daughter  should  die 
without  leaving  any  child  or  children  at  the  time 
of  her  death,  or  if  leaving  such  child  or  chil- 
dren, such  child  or  all  such  children  should  die 
before  arriving  at  the  age  of  twenty-one  years, 
then  all  the  real  estate  and  personal  estate 
devised  to  my  said  daughter  shall  go  to  my  sis- 
ter," etc. 

It  was  held  that: 

"The  daughter  [of  the  testator]  took  a  ftee- 
simple  estate  in  the  realty,  and  the  entire  inter- 
est in  the  personalty,  defeasible  as  to  both  real- 
ty and  '>ersonaI^  on  her  dying  without  leaving 
a  child,  or,  if  she  left  child  or  children,  upon 
their  all  dying  before  attaining  the  age  of  21 
years;  and  upon  the  happening  of  such  contin- 
gencies the  ultimate  devisees  and  legatees  would 
take  by  way  of  executory  devise  and  beqaest, 
and  not  by  way  of  contingent  remainder." 

Judge  Alvey  said  in  his  opinion: 
"Upon  consideration  of  the  whole  context  of 
the  will,  I  can  entertain  no  doubt  of  the  opim- 


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ion  that  the  daughter  was  intended  to  take, 
and  that  she  does  by  fair  constnietion  take,  an 
estate  in  fee  in  the  realty,  and  the  entire  interest 
in  the  personalty,  defeasible  as  to  both  realty 
and  personalty,  upon  the  banneninc  of  the  con- 
tingencies apeafied." 

There  are  a  nnmber  of  other  cases  decided 
by  this  court  to  the  same  effect,  and  we  are 
forced  to  the  conclusion  that  under  this  wUl 
the  ctilldren  of  Mrs.  McElderry  took  no  in- 
terest in  the  share  of  Charles  H.  Bradford 
left  to  him  by  his  father's  wilL 

It  was  said  at  the  argument  tbat  in  prior 
matters  concerning  tbe  estate  of  Gov.  Brad- 
ford the  appellants  had  concorred  in  the 
-views  now  taken  tqr  the  appellees,  and  pro- 
ceeds of  properties  bad  been  disposed  of  ac- 
cordingly, but  there  is  nothing  in  the  record 
which  would  Justify  us  for  that  reason  in 
making  the  distribution  sow  before  ns  c<»- 
trary  to  what  we  are  of  opinion  the  will  and 
authorities  require.  We  will,  however,  di- 
rect that  the  costs  l>e  paid  out  of  the  estate 
of  Cbarleet  H.  Bradford. 

Decree  reversed,  and  cause  remanded  for 
further  proceedings  in  accordance  with  this 
opinion,  the  costs  to  l>e  paid  out  of  the  es- 
tate of  Charles  H.  Bradford. 


1131  HO.  a) 

AKTHUB  &  BOTLB  v.  MOBBOW  BBOS. 
(No.  61.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Beleabe    «=»57(1)  —  EviDEMCK  —  SuCTI- 

CIENCT. 

In  an  attachment  issued  against  a  general 
contractor  on  a  judgment  against  the  subcon- 
tractor for  work  done  by  plaintiSs,  held,  under 
the  evidence,  that  a  release  under  seal  executed 
by  the  subcontractor  to  the  general  contractor 
-was  not  a  release  of  the  debt  attached. 

2.  BVIDKnOB     «=976— PRKSUMPTIOR— FAII.UBK 

OF  Pabtt  to  Testify. 
That  neither  of  the  garnishees  took  the  stand 
raises  a  presumption  against  them. 

3.  F1tAi;DT7I.ENT     CONVETANCKS    ^S>229— L]Oi> 

bilit;  of  Gbartek— GABRismiKKT. 
If  a  creditor  has  fraudulently  conveyed  prop- 
erty to  another,  the  grantee  may  be  charged  as 
garnishee. 

4.  Fkaudi]i:.eht    Convetanoss    4s>4S— Voi.- 

UNTABT  BSLEABE  BT  CBEDITOB. 

The  voluntary  release  of  his  debtor,  by  a 
creditor  not  having  the  means  to  pay  debts  is 
void  as  to  the  creditors  of  the  latter. 

5.  FBAVDnLENT   Conveyances  «=927S— VoIi- 

UNTABY  BEI.EAaB— PbESUMFTIOK. 

If  the  necessary  effect  and  operation  of  a 
voluntary  release  of  a  debtor  was  to  hinder,  de- 
lay, or  defraud  creditors,  the  legal  presumption 
is  tilat  it  was  made  for  that  purpose. 
e.  Fbaudxhjsnt  CoNysTAKCES  9s>2&— Voi.- 
UNTABY  Beueasb  ot  Dbbtob— Inbtbuvekt 

VRDEB  SeAX. 

If  the  release  had  its  origin  in  fraud,  or 
what  dte  law  deems  fraud,  it  would  make  no 
difference  that  it  was  under  seal. 

Appeal  from  Superior  Court  of  Baltimore 
City;   Bobert  F.  Stanton,  Judge. 

Suit  by  Arthur  &  Boyle,  for  the  nse  of 
lielder  C.  Sllngluff  and  another,  trustees, 
flgnlnst  James  O.  Parlett    On  the  judgment 


for  plaintiffs,  an  attachment  was  issued 
against  Morrow  Bros.,  garnishees.  BVom  the 
judgment  against  the  garnishees,  plaintiffs 
appeal    Beversed,  and  new  trial  awarded. 

Argued  before  BOYD,  C.  J.,  and  BBISOOB, 
BUBKE,  THOMAS,  PATTISON,  UBNEB, 
STOCKBBIDGB,  and  CONSTABLE,  JJ. 

Albert  R.  Stuart  and  Stuart  S.  Janney, 
both  of  Baltimore  (Ritchie  &  Janney,  A. 
Dana  Hodgon,  and  Fielder  C.  Slingluff,  all 
of  Baltimore,  on  the  brief),  for  appellants. 
Carville  D.  Benson  and  John  D.  Nock,  both 
ot  Baltimore  (Benson  &  Karr,  of  Baltimore, 
on  the  brief),  for  appellees. 

BOYD,  C.  J.  The  appellees  were  the  gen- 
eral contractors  for  the  State  Normal  School 
building  near  Towson,  and  made  In  writing 
a  subcontract  with  James  G.  Parlett  to  do 
certain  work  in  connection  with  its  construc- 
tion. The  contract  is  not  in  the  record,  but 
a  memorandum  of  agreement  filed  in  the 
case  shows  that  it  was  for  grading  and  land- 
scaping. Parlett  made  a  subcontract  wltb 
Carozza  Bros,  ft  Co.,  who  in  turn  entered  in- 
to a  subcontract  with  Arthur  &  Boyle,  the 
appellants. 

While  that  work  was  going  on,  Charles 
Morrow,  one  of  the  appellees,  called  Frank 
J.  Boyle,  one  of  the  appellants,  to  where  be 
and  Parlett  were  standing,  and  asked  him 
if  he  would  make  some  tunnels  which  were  to 
be  constructed  under  the  building,  and  be 
replied  that  he  would  If  he  got  his  price,  and 
that  he  could  start  the  next  morning.  After 
some  conversation  about  tbe  price.  Morrow 
turned  to  Parlett  and  said: 

"  'Parlett,  get  them  in  right  away,'  and  also 
said  to  me,  'You  had  better  get  your  shovel  up 
there  and  get  to  work  on  them  and  get  them 
out,  as  we  can't  start  this  building  until  these 
tunnels  are  taken  out.'  Q.  And  he  said  to  Mr. 
Parlett,  'You  get  them  out  right  away*?  A. 
Yes." 

That  Is  substantially  all  in  the  record  In 
reference  to  the  contract  for  the  tunnels, 
but  it  is  corroborated  by  Parlett 

The  appellants  did  the  work,  and  received 
a  payment  of  $1,890  on  account  of  it  B^ank 
J.  Boyle  testified  that  the  amount  was  paid 
to  him  by  Parlett,  who  received  the  money 
from  Morrow  Bros.,  at  their  office,  in  bis 
presence,  and  turned  it  over  to  him.  Later 
the  appellants  sued  the  appellees  for  the 
balance  they  claimed  to  be  due  on  account 
of  the  work  on  the  tunnels,  but  the  case  was 
decided  against  them.  Afterwards  they  sued 
Parlett  and  recovered  a  Judgment  against 
him  for  $4,409.06,  with  interest  and  costs. 
On  that  Judgment  an  attadiment  was  Issued, 
and  laid  In  the  hands  of  Morrow  Bros.  They 
first  filed  a  plea  of  nulla  bona,  but  subse- 
quently filed  an  additional  plea  in  which 
they  admitted  taaving  $250  In  hand  due  Par- 
lett, but  alleged  that  they  had  no  other  goods, 
chattels,  or  credits  of  Parlett  In  their  hands. 
The  $250  was  for  the  balaBce  due  <«  the 


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101  ATIiANTIC  REPOnTEE 


(Md, 


contract  for  grading  and  landscaping.  The 
trial  In  this  case  resulted  In  tbe  appellants 
obtaining  a  verdict  for  only  $250  against 
Morrow  Bros.,  the  garnishees,  and  they  ap- 
pealed from  the  Judgment  thereon. 

There  are  only  two  bills  of  exception  la  the 
record,  the  first  being  to  the  admission  of  an 
"agreement  and  release,"  a  "memoratidum  of 
agreement,"  and  a  receipt  which  were  offered 
by  the  garnishees,  and  the  second  presents 
the  rulings  on  the  prayers.  The  plaintiffs 
offered  five  prayers,  all  of  which  were  re- 
jected, and  the  garnishees  offered  three,  the 
second  of  which  was  granted,  and  the  others 
rejected.  We  do  not  find  in  the  record  a 
copy  of  the  Judgment  on  which  the  attach- 
ment was  issued,  but  the  evidence  of  Mr. 
Boyle  shows  that  they  recovered  Judgment 
for  $4,409.05,  with  interest  from  May  9,  1916, 
and  apparently  that  was  the  date  of  the 
judgment.  Nor  is  there  anything  lo  show 
when  the  suit  against  Ftirlett  was  instituted. 
The  appellees  rely  on  the  agreement  and  re- 
lease referred  to,  while  the  theory  of  the 
appellants  is  that  Morrow  Bros,  owe  Par- 
lett  a  balance  for  the  work  on  the  tunnels, 
which  they  claim  is  the  amount  of  the  Judg- 
ment they  recovered  against  Parlett,  and  (1) 
that  Parlett  never  did  release  this  claim, 
and  (2)  that,  even  if  he  did,  the  release  was 
without  consideration,  void  and  of  no  effect 
as  to  them,  by  reason  of  the  British  statute 
(15  Elizabeth,  c.  5)  known  as  the  statute 
against  fraudulent  conveyances,  in  force  in 
this  state. 

[1]  1.  We  find  no  error  in  admitting  the 
papers  referred  to,  notwithstanding  our  con- 
clusion to  be  hereafter  stated  as  to  the  ef- 
fect of  the  release.  The  meinortindum  of 
agreement  was  dated  March  16, 1916,  and  was 
executed  by  Morrow  Bros.,  parties  of  the 
first  jpart,  James  G.  Parlett,  party  of  the 

.  second  part,  and  Oarozza  Bros.  &  Co.,  parties 
of  the  third  part,  the  ludividual  members  of 
the  two  firms  being  also  named.    Its  recitals 

.  are  as  follows: 

"Whereas,  the  parties  of  the  first  part  entered 
into  a  contract  with  the  party  of  the  second  part 
jor  tho  grading  and  landscaping  [italics  ours] 
at  the  Maiyland  State  Normal  School,  and  the 
parties  of  the  third  part  claim  to  have  an  aasicn- 
ment  of  said  contract  from  the  party  of  the  sec- 
ond part;  and  whereas,  a  dispute  has  arisen  in 
regard  to  the  state  of  accounts  between  them, 
and  the  parties  hereto  liave  arrived  at  a  com- 
promise settlement  of  their  differences:  Where- 
fore, now  this  agreement  witnesseth:  That  in 
consideration  of  the  sum  of  one  ($1.00)  dollar 
by  each  of  the  parties  hereto  to  the  other  paid, 
and  in  fnrtiier  consideration  of  certain  mutual 
concessions  by  the  parties  hereto,  it  is  afp^eed  by 
the  parties  hereto  and  each  of  them  that  the  to- 
tal nmount  due  by  the  parties  of  the  first  part 
in  connection  with  and  as  a  result  of  the  matters 
and  things  hereinhefore  referred  to  [italics  ours] 
is-  eleven  thousand  five  hundred  dollars  ($11,- 
500),  and  no  more." 

On  the  same  day  what  is  called  an  "agree- 
ment and  release"  was  executed  by  Parlett, 
pnrfy  of  the  first  part,  and  the  Carozza  Bros. 
&  Co.,  parties  of  the  second  part,  to   the 


Morrow  Bros.,  parties  of  the  third  part,  the 
individual '  members  of  the  firms  being  also 
named.    It  recites: 

That,  "whereas,  certain  differences  and  dis- 
putes have  arisen  between  *  •  *  [naming  the 
parties!  regarding  certain  contracts  entered  into 
by  the  parties  of  the  first  and  third  parts  re- 
garding certain  work  to  be  done  at  and  on  the 
Maryland  State  Normal  School,  for  the  erection 
of  which  sdiool  the  parties  of  the  third  part  were 
the  general  contractors,  and  whereas  said  dif- 
ferences and  disputes  have  been  adjusted  to  the 
satisfaction  of  the  parties  hereto,"  and  that  for 
and  in  consideration  of  the  sum  of  $10,500  in 
band  paid  to  the  parties  of  the  first  and  second 
parts  by  the  parties  of  the  third  part,  the  re- 
ceipt of  which  is  acknowledged,  and  the  further 
payment  of  $1,000  when  the  state  of  Maryland 
makes  final  payment  to  Morrow  Bros.,  and  of 
other  good  and  valuable  considerations,  Parlett 
and  Carozza  Bros.  &  Co.  and  each  of  them,  re- 
mise, release,  and  forever  discharge  Morrow 
Bros,  "from  all  and  all  manner  of  action  and  ac- 
tions, cause  and  causes  of  action,  suits,  debts, 
dues,  sums  of  money,  accounts,  reckonings, 
bonds,  covenants,  contracts,  agreements,  prom- 
isee, damages,  claims,  and  demands  whatsoever 
in  law  or  in  equity  which  against  the  said  Wil- 
liam H.  Morrow  and  Charles  A.  Morrow,  or  ei- 
ther of  them,  they  ever  had,  now  have,  or  which 
their  respective  heirs,  personal  representatives, 
or  assigns  hereafter  can,  shall,  or  may  have,  for, 
upon,  or  by  reason  of  any  manner  or  cause  or 
thing  whatsoever  from  the  beginning  of  the 
world  to  the  day  of  the  date  of  these  presents; 
the  said  parties  of  the  first  and  second  parts, 
and  each  of  them,  liereby  declaring  themselves 
fully  paid  and  satisfied. 

"And  the  said  parties  of  the  first  and  secoad 
parts  do  hereby  covenant  and  warrant  that  any 
and  all  claims  of  any  other  subcontractors  or  oth- 
er persons  for  labor  and  material  done  or  fur- 
nished in,  about,  or  in  connection  with  the  con- 
struction of  the  State  Normal  School  in  Balti- 
more county,  or  in  or  about  the  site  of  said 
State  Normal  School  bnilding,  are  paid  in  full, 
and  that  they  and  each  of  them  will  assume  and 
pay  any  and  all  such  claims  as  may  arise  or  t>e 
presented." 

The  receipt  refer»ed  to  is  as  follows: 

"Baltimore,  3/16/191«. 

"Bec^ved  of  Morrow  Bros,  two  thousand  dol- 
lars in  full  settlement  of  Normal  School  con- 
traot,  except  the  sum  of  $1,000,  which  is  to  be 
paid  when  work  is  finally  completed  and  accept- 
ed, to  be  paid  as  follows:  Parlett,  $250.00: 
Carozza,  $750.00." 

That  is  signed  by  PaWett  and  Garona  Bros. 
It  would  )>e  dlfilcnlt  to  use  more  words  in  a 
release  than  in  the  one  above  set  out,  bat 
there  are  some  significant  facts  which  can- 
not be  overlooked.  In  the  first  place,  tt  would 
have  been  so  easy  to  mention  the  contract 
for  tiinneling  if  that  was  intended.  Then  the 
"memorandum  of  agreement"  and  the  "agree- 
ment and  release"  were  executed  the  same 
day,  and  the  former  specifically  refers  to 
the  contract  for  grading  and  landscaping  and 
to  no  other  contract.  It  cannot  be  contended 
that  it  relates  to  that  for  tunneling.  It  Is 
there  agreed  "that  the  total  amount  due  by 
the  parties  of  the  first  part  [Morrow  Bios.] 
in  connection  with  and  as  a  result  of  the  mat- 
ters and  things  hereinbefore  referred  to,  i» 
eleven  thousand  five  hundred  ($11,500)  dollars, 
and  no  nxae."  The  only  things  "hereinbefore 
referred  to"  are  the  grading  and  landscaplns- 
Tlie  $ll,-500  is  the  precise  sum  named  as  the 


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consideration  In  the  agreement  and  release, 
tbere  being  $10,500  In  band  paid,  and  the 
sum  of  $1,000  to  be  paid  wben  the  state  made 
Its  final  payment  It  Is  therefore  afBrmatlve- 
ly  and  clearly  shown  that  no  part  of  the  $11,- 
500  was  paid  for  the  tunneling,  but  that  the 
whole  of  that  sum  was  due  by  Morrow  Bros, 
to  Parlett  and  Carozza  Bros.  Company  for 
grading  and  tunneling. 

But  beyond  that  It  is  stated  in  the  opinion 
of  the  learned  Judge  below,  and  we  so  un- 
derstand from  the  record,  that  the  contract 
for  the  grading  and  landscaping  was  made 
between  the  Morrow  Bros,  who  were  the  gen- 
eral contractors,  and  Parlett  Then  Parlett 
made  a  subcontract  with  Carozza  Bros.  &  Co. 
for  that  work,  which,  according  to  the  mem- 
orandum of  agreement,  the  latter  claim 
amounted  to  an  assignment  of  It  and  that 
firm  made  a  subcontract  with  Arthur  & 
Boyle  for  that  work.  We  find  nothing  in  the 
record  to  suggest  that  the  Carozza  Company 
had  any  Interest  whatever  in  the  contract  for 
tunneling.  It  was  therefore  proper  to  Join 
the  Carozza  Company  in  the  memorandum  of 
agreemmit  and  for  them  to  unite  in  the  re- 
lease, and  to  require  that  company  and  Par- 
lett to  discharge  Morrow  Bros,  from  all 
claims  they  were  Jointly  Interested  in  or  con- 
nected with,  but  why  should  it  have  been  in- 
tended hy  that  Instrument  to  release  Morrow 
Bros,  from  a  claim  of  Parlett  with  which 
the  Carozza  Company  had  no  connection? 
If  it  had  been  so  intended,  the  natural  and 
proper  thing  to  do  was  to  specifically  recite  in 
the  release  the  claim  for  tunneling,  as  the 
Carozza  Company  had  nothing  to  do  with  it, 
but  were  parties  to  the  release.  It  is  clear 
that  the  release  was  only  intended  to  affect 
the  contract  or  contracts  with  which  Parlett 
and  the  Carozza  Bros.  &  Co.  were  both  con- 
nected, and  not  the  one  to  which  the  latter 
were  In  no  wise  parties. 

Then  when  we  come  to  the  oral  evidence, 
which  was  admitted  without  objection  so  far 
as  the  record  discloses,  and,  we  think,  prop- 
erly admitted  under  the  Issues,  it  is  alto- 
gether on  the  one  side.  Neither  of  the  Mor- 
rows testified,  nor  did  they  call  a  witness, 
notwithstanding  Parlett  had  sworn  that  the 
tunnel  work  was  not  Included,  and  not  intend- 
ed to  be  included.  As  the  record  stands, 
lionow  Bros,  have  only  paid  $1,890  for 
"six^  some  hundred  dollars"  of  work,  with- 
out an  iota  of  evidence  to  contradict  that 
statement  by  Parlett  and  if  the  appellees' 
construction  of  the  release  is  correct  they 
were  released  from  the  payment  of  over  $^- 
000  without  one  penny's  consideration;  for, 
as  we  have  shown,  the  consideration  named 
in  the  release  is  exactly  what  all  of  the  par- 
ties agreed  under  seal  was  due  for  the  grad- 
ing and  landscaping. 

But  that  it  not  alL  Morrow  Bros,  not  only 
knew  that  Arthur  &  Boyle  were  doing  the 
tunneling,  but  according  to  the  uncontradicted 
evidence  Charles  Morrow  told  Parlett  in 
Boyle's  presence  to  get  them  to  work  right 


away,  and  Parlett  gave  them  a  rAttea  order 
to  do  the  work,  which  work  U  is  not  denied 
they  did.  The  $1,890  which  they  did  pay 
was  paid  to  Parlett  In  Boyle's  presence,  and 
then  turned  over  to  him  In  Morrow  Bros.' 
offlc&  Parlett  was  criticized  at  the  argument 
for  making  in  thdd  case  statements  con- 
tradictory to  and  Inconsistent  with  hla  evi- 
dence in  the  suit  which  Arthur  &  Boyle 
brought  against  Morrow  Bros,  for  the  balance 
due  for  the  tunneling  work,  but  It  cannot 
properly  be  said  that  his  explanation  is  an  un- 
reasonable  one.  He  testified  In  the  other  case 
that  the  money  was  due  to  Arthur  &  Boyle; 
and  not  to  him,  and  he  said  at  this  trial  thai 
he  then  thought  it  did.  They  did  the  work, 
and  under  the  facts  about  their  employment 
shown  by  the  record  he  might  well  have  be- 
lieved that  they  were  entitled  to  the  money. 
As  Arthur  &  Boyle  did  the  work,  If  their 
charges  for  it  amounted  to  all  that  Morrow 
Bros,  were  to  pay  for  it,  the  proper  thing 
for  Parlett  to  do  was  to  treat  it  as  their 
money,  and  not  his.  When  the  court  deter- 
mined that  Arthur  &  Boyle  could  not  recover 
from  Morrow  Bros,  and  that  Parlett  was  re- 
sponsible to  them,  he  then  very  properly 
concluded  that  the  money  was  due  him.  It 
certainly  was  not  intended  by  the  court  or 
any  one  else,  that  it  should  not  be  paid  to 
some  one.  It  was  due  either  to  Arthur  Ik 
Boyle  directly,  or  to  Parlett  for  their  bene- 
fit He  admits  that  he  made  a  memorandum 
in  his  book  of  the  amount  and  sent  Morrow 
Bros,  a  notice  of  it  bat  he  says  that  his  idea 
was  that  be  was  to  collect  It  and  pay  it  to 
Arthur  &  Boyle.  As  be  bad  given  the  written 
order  to  Arthur  &  Boyle  to  proceed  with  the 
work,  it  was  perfectly  proper  for  him  to 
make  and  keep  a  memorandum  of  It,  but  the 
only  money  that  has  been  paid  he  paid  over 
at  once  to  Arthur  &  Boyle  in  the  presence 
of  Mr.  Morrow. 

[2]  The  fact  that  neither  of  the  Morrows 
went  on  the  stand  Is  significant  and  raises 
a  presumption  against  them.  Dawson  v. 
Waltemeyer,  91  Md.  328,  46  Atl.  994.  Their 
claim  that  they  are  released  from  the  sum 
due  is  simply  based  on  the  fact  that  the  re- 
lease is  under  seal,  and  not  even  on  a  con- 
tention that  they  have  paid  the  money.  We 
are  therefore  of  the  opinion  that  under  the 
evidence  the  release  did  not  apply  to  the 
contract  for  tunneling,  and  hence  the  fact 
that  it  was  under  seal  can  make  no  differ- 
ence. 

That  being  so,  no  reason  appears  from  the 
record  why  Parlett  cannot  sue  Morrow  Bros., 
and  there  can  be  no  application  of  the  gen- 
eral principle  referred  to  in  the  opinion  of 
tbe  lower  court  and  in  the  authorities  cited 
by  tbe  appellees,  that  ordinarily  the  test  of 
tbe  liability  of  a  garnishee  is  whether  be 
bad  property,  funds,  or  credits  in  his  hands 
for  which  the  debtor  can  sue  him.  That  gen- 
eral principle  Is  clearly  and  thoroughly  es- 
tablished by  2  Poe  on  PI.  &  Pr.  §  531,  B.  & 
O.  R.  It  Co.  V.  Wheeler,  18  Md.  372,  Myer  v. 


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(Md. 


Insurance  Co.,  40  Md.  695,  and  many  other 
authorities  which  could  be  dted,  if  there  was 
any  doubt  about  It. 

[8]  But  there  are  well-recognlaed  excep- 
tions to  the  general  rule,  one  of  which  Is 
that.  If  a  creditor  has  fraudulently  conveyed 
property  to  another,  the  grantee  may  be 
charged  as  garnishee.  Odend'hal  v.  Devlin, 
48  Md.  439;  Farley  v.  Colver,  118  Md.  379, 
386,  77  AU.  589;  Hodge  &  McLane  on  At- 
tachments, i  148.  If  he  has  conveyed  It 
contrary  to  the  Statute  of  ESlzabeth,  It  comes 
within  the  exception. 

[4-1]  But  if  the  release  had  included  this 
fund,  then  it  would  have  been  null  and  void 
and  of  no  effect  as  against  the  appellants 
or  other  creditors  of  Parlett  He  testified 
that  he  had  no  means  with  which  to  pay  this 
Judgment,  and  It  was  In  effect  conceded  at 
the  argument  that  he  was  Insolvent.  If  a 
debtor  and  creditor  can  discharge  an  indebt- 
edness simply  by  having  the  creditor  execute 
an  instrument  like  this  under  seal,  and  the 
creditor  has  no  other  means  with  whldi  he 
can  pay  Us  debts,  then  Indeed  might  it  be 
properly  charged  that  the  law  encourages 
fraud  and  protects  fraudulent  transactions. 
Instead  of  protecting  honest  and  Innocent 
people  from  attempts  to  defraud  them.  We 
do  not  mean  to  say  that  there  was  Intention- 
al fraud  In  this  matter,  but  if  It  was  In- 
tended to  get  rid  of  this  Indebtedness  for  no 
suf&clent  consideration,  and  thereby  put  It 
beyond  the  reach  of  the  creditors  of  Parlett, 
It  was  certainly  what  the  law  condemns. 
Parlett  swears  positively  that  it  was  not  in- 
tended to  release  this  claim.  The  Morrows 
are  silent  The  Statute  of  13  Bllz.  (chapter 
6)  has  frequently  been  before  this  court.  A 
voluntary  conveyance  Is  prima  fade  Invalid 
as  against  existing  creditors  of  the  grantor 
who  has  no  sufficient  means  to  pay  bis  debts, 
Independent  of  that  conveyed,  without  regard 
to  his  actual  intent  or  to  that  of  the  grantee. 
Christopher  v.  Christopher,  64  Md.  583,  588, 
3  AtL  296;  Cone  v.  Cross,  72  Md.  102,  105, 
19  Atl.  391.  The  burden  is  on  the  party 
claiming  under  the  conveyance  to  prove  that 
a  debtor  had  sufBclent  property  with  which 
to  pay  his  debts,  exclusive  of  that  conveyed 
away.  It  Is  not  necessary  in  order  to  bring 
a  conveyance  within  the  statute  that  there 
shall  be  an  actual  Intent  on  the  part  of  the 
grantee  to  perpetrate  a  fraud.  If  the  neces- 
sary effect  and  operation  be  to  hinder,  delay, 
or  defraud  creditors,  the  legal  presumption 
is  that  it  was  made  for  that  purpose.  Schu- 
man  v.  Peddlcord,  60  Md.  560,  563 ;  Riley  v. 
Carter,  76  Md.  681,  600,  25  Atl.  667,  19  I* 
R.  A.  489,  36  Am.  St.  Rep.  443;  1  Alex.  Br. 
Stat.  (Coe's  BXL)  507,  note  21.  If  the  release 
had  its  origin  in  fraud,  or  what  the  law 
deems  fraud.  It  would  make  no  difference 
that  It  was  under  seal.  Schaferman  y.  O'Bri- 
en, 28  Md.  565,  575,  92  Am.  Dec.  708;  Youngs 
V.  Trustees  of  PubUc  Schools,  31  N.  J.  Eq.  290. 


Hie  statute  Is  applicable  to  release  of 
debts,  Blgelow  on  Fraud.  Con.  132;  May 
on  Fraudulent  and  Voluntary  Dls.  of  Prop. 
(3d  Ed.)  15, 16,  20,  21;  Moore  on  Fraud.  Con. 
p.  60,  I  19;  Hanser  v.  King,  76  Va.  731,  737; 
12  R.  O.  U  507,  J  36;  20  Cye.  354,  406. 

It  follows  from  what  we  have  said  that 
there  was  error  in  granting  the  garnishee's 
second  prayer  and  rejecting  the  plalntifTs 
prayers.  In  this  state  the  practice  Iiss  been 
and  is  to  permit  a  creditor  to  resort  in  such 
cases  to  either  of  two  remedies,  that  of 
attachment  or  by  bill  in  equity  (Stockbridge 
V.  Fahnestock,  87  Md.  127,  136,  39  AtL  OS. 
and  cases  there  cited) ;  and  hence  we  have 
not  thought  It  necessary  to  refer  to  the  Juris- 
diction of  a  law  court,  as  it  Is  well  estab- 
lished. 

Judgmrat  reversed,  and  new  trial  award- 
ed ;  the  appellees  to  pay  the  costs,  above  and 
below. 

(Ul  Md.  Z9«) 
SOULSBT  et  al.  v.  AMEJRICAN  COLONIZA- 
TION SOC.  et  aL    (No.  54.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

Appeal  and  Fbbob  «=>1203(5)— Mandatb — 

DiSUISSAI.. 

In  a  suit  by  the  residuary  legatees  of  the 
prantor  of  tlie  trust  to  declare  it  void,  a  juds^ 
meat  of  tbe  Court  of  Appeals  on  a  former  ap- 

Seal  that  the  trustees'  adversary  possession  of 
le  trust  property  for  more  than  20  years  prior 
to  the  suit  was  a  bar  to  its  recovery  by  the  peti- 
tioners, notwithstanding  a  statement  in  the  opin- 
ion that  the  trust  was  void  because  conflicting 
with  the  rule  against  perpetuities,  was  a  deter- 
mination that  the  petinoners  had  no  right  of  ac- 
tion, BO  that,  after  mandate,  the  lower  court's 
decree  dismissing  the  petition  was  correct. 

Appeal  from  Circuit  Court  of  Baltimore 
City;   Walter  L  DawMns,  Judge. 

Suit  by  Robert  Soulsby  and  others  against 
the  American  Oolonizatloa  Society,  Ferdi- 
nand C.  Latrobe,  and  another,  trustees.  r>e- 
cree  sustaining  the  demurrers  to  the  petition 
and  dismissing  the  petition,  and  petitioners 
appeal.     Decree  affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
C»E,  BURKE,  PATTISON,  URNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Leigh  Bonsai,  of  Baltimore,  for  appellants. 
William  O.  Johnson,  of  Washington,  D.  C. 
and  D.  E.  Este  Fisher,  of  Baltimore,  tor  ap- 
pellee American  Colonization  Soc.  Chari«>s 
F.  Stein,  Eugene  O'Dunne,  and  Donald  B. 
Creecy,  all  of  Baltimore,  for  appellees  Ferdi- 
nand C.  Latrobe  and  James  W.  Harvey,  trus- 
tees. 

CONSTABLE,  J.  This  appeal  arises  from 
a  misunderstanding  of  the  meaning  and  ef- 
fect of  the  mandate  togetho-  with  the  opin- 
ion of  this  court  in  the  case  of  the  American 
Colonization  Sodel7  v.  Robert  Soulsby  et  al., 
129  Md.  605,  99  Atl.  944,  L^  B.  A.  1917C. 
937. 

We  need  only  refer  briefly  to  the  fkcts  ot 


£=>F0T  otlker  cases  sm  same  topic  and  KE7-NUUBBR  la  all  K«7-Numbared  Dlsasti  and  Indazw 


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SOULSBT  ▼.  AMERICAN  COLONIZATION  SOa 


781 


the  lldgatlon,  for  ihey  were  set  ont  very 
fully  In  the  careful  and  comprehenslye  opin- 
ion prepared  by  Judge  Pattlson  on  the  for- 
mer appeal.  Caroline  Donovan  In  18S0  ex- 
ecuted a  declaration  of  trust.  In  which  she 
provided  that  after  her  death  certain  enum- 
erated real  property  should  be  held  by  sped- 
fled  trustees,  and  the  net  Income  paid  over 
to  the  Ajnerlcan  Colonization  Society  for 
the  transportation  annnally  to  LlBerla  of 
such  colored  persons  as  might  desire  to  emi- 
grate to  that  country,  with  the  further  pro- 
vision that.  If  In  any  one  year  the  cost  of 
transportation  for  that  year  should  not  re- 
quire the  whole  of  the  net  income  for  that 
year,  the  Income,  or  any  balance,  should  be 
used  by  the  said  society  for  the  maintenance 
■of  public  schools  for  the  education  of  col- 
ored children  in  Liberia.  It  was  provided 
that  the  trust  was  to  be  under  the  supervi- 
sion of  a  court  of  equity;  so  therefore  at 
the  death  of  Caroline  Donovan,  in  March, 
1890,  the  circuit  court  of  Baltimore  city  as- 
sumed Jurisdiction  of  the  trust;  and  from 
that  time  to  the  present  the  trustees  have 
collected  the  rents  from  the  properties  and 
paid  the  net  Income  over  to  the  society. 

The  American  Colonization  Society  is  a 
Maryland  corporation  incorporated  in  the 
year  1831,  and  was  empowered  under  a  new 
charter,  passed  in  1837,  to  purchase,  have, 
and  enjoy  any  lands  by  the  gift,  bargain, 
sale,  devise,  or  otherwise,  of  any  person,  to 
take  and  receive  any  sums  of  money,  goods, 
or  chattels  that  should  be  given  to  It  In  any 
manner,  and  to  occupy,  use,  and  enjoy,  sell, 
transfer,  or  otherwise  dispose  of  the  same 
as  It  should  "determine  to  be  most  conducive 
to  the  colonization,  with  their  own  consent 
In  Africa,  of  the  free  people  of  color  re- 
aiding  In  the  United  States." 

The  appellants  and  petitioners,  who  are 
the  lielrs  at  law  and  residuary  legatees  of 
<riaroline  Donovan,  filed  their  petition  In  this 
■cause,  praying  that  the  trust  properties 
might  be  delivered  over  them,  upon  the 
-ground  that  the  trust  was  void.  The  reasons 
assigned  for  Its  invalidity  were  twofold,  of 
In  the  alternative.  They  contended.  In  the 
first  place,  that  the  declaration  of  trust  was 
Told  as  contravening  the  rule  against  per- 
petuities and  for  Indeflnlteness,  and  again 
that,  even  though  It  should  be  found  that  for 
tiiose  reasons  it  was  not  void  ab  Initio,  yet 
nevertheless  It  had  since  become  Inoperative 
and  void,  because  the  objects  and  purposes 
for  ■n-hich  it  had  been  created  could  no  long- 
er be  accomplished. 

Demurrers  were  filed  to  the  petition  on 
various  grounds,  Including  the  ground  that 
adversary  possession  for  several  years  more 
than  the  statutory  period  completely  barred 
nil  recognition  of  the  petitioner's  claim.  The 
lower  court  overruled  the  demurrers,  and 
the  trustees  and  the  society  appealed  to  this 
court.  This  court.  In  disposing  of  the  ap- 
peals, entered  the  order  as  follows:  "Order 
i«versed,  and  cases  remanded;    the  appel- 


lees to  pay  the  costs."  After  the  mandate 
was  received  below,  the  petitioners  asked 
leave  to  amend  the  petition,  but  this  the 
court  refused  to  permit,  and  entered  a  de- 
cree sustaining  the  said  demurrers  and  dis- 
missing the  petition.  From  this  decree  the 
petitioners  have  takoi  the  present  appeal. 

As  we  said  in  the  beginning  of  this  opinion, 
this  appeal  arises  from  a  misconception  of 
the  effect  of  the  order  on  the  first  appeal. 
The  appellants  have  laid  hold  of  certain 
passages  In  the  oidnion  the  meaning  of 
which,  when  considered  with  the  whole  of 
the  text,  gives  no  aid  to  the  appellants' 
pres«it  contentions,  and  were  not  intended 
to  do  so  when  adopted  by  us.  From  the 
passages  they  argue  that,  when  this  court 
rerversed  the  previous  decree  and  remanded 
the  cause.  It  must  have  intended  that  the 
petitioners  were  to  be  allowed  to  amend. 
The  fact  is  that  this  court  Intended  exactly 
what  it  has  intended  In  a  great  number  of 
cases  where  similar  orders  have  been  passed, 
where,  by  the  opinion  filed,  It  appenred  that 
the  complainants'  or  petitioners'  contentions 
had  been  ruled  against,  that  is,  to  have  the 
lower  court  enter  the  decree  of  dismissal. 

As  stated  above,  the  petitioners  had  two 
contentions — one  that  the  trust  was  void  ab 
Initio;  the  other,  that  although  the  courts 
should  find  that  the  trust  was  not  void  ab 
initio,  yet  it  must  be  found  that  it  was  void 
now,  for  the  reason  that  the  purposes  for 
which  It  had  been  created  were  no  longer 
available.  Judge  Pattlson  in  delivering  the 
opinion  of  the  court  first  dealt  with  the 
former  contention,  and,  after  reviewing  sev- 
eral of  our  leading  cases  treating  of  the 
rule  against  perpetuities,  announced  our  con- 
clusion in  the  following  plain  and  unequivo- 
cal language : 

"Whatever  may  be  the  law  dsewhere,  we,  fol- 
lowing the  decisions  of  this  court,  must  hold  the 
trust  in  this  case  to  be  void  because  it  is  a  per- 
pefaiity.  in  that  it  attempts  to  create  an  active 
trust  which  is  required  to  continue  Iwyond  the 
period  limited  by  the  rule,  but,  although  the 
trust  is  void  for  the  reason  stated,  the  petition- 
ers are  liarred  from  recovery  upon  the  ground 
of  its  invalidity,  resulting  from  such  cause,  be- 
cause of  the  adversary  possession  of  the  trustees 
of  the  trust  property  for  a  period  of  more  thaij 
20  years  prior  to  the  institution  of  these  pro- 
ceedings." 

And  In  support  of  the  latter  part  of  the 
above  Needles  v.  ^artln,  33  Md.  618,  was 
cited  and  quoted  from  with  several  cita- 
tions of  authorities  to  the  same  effect. 

This,  then,  became  the  law  of  the  case, 
and  the  correct  law,  as  we  then  thought  and 
now  think.  In  oiur  opinion,  when  we  held 
that  the  adversary  possession  by  the  trustee 
of  the  trast  property  was  a  bar  to  its  recov- 
ery by  the  petitioners,  we  intended  to  say 
Just  what  the  words,  in  their  ordinary  mean- 
ing. Import;  that  is,  that  whatever  rights 
the  petitioners  might  have  had  at  one  time 
had  been  lost  because  others  had  acquired 
them  through  operation  of  law.  This  abso- 
lutely settled  the  case.  In  so  far  as  the  petl- 


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101  ATLANTIO  RKPORTEB 


OKd. 


tlonera  vera  concerned,  without  the  neces- 
sity of  adverting  to  the  other  contention  of 
the  petitioners,  based  upon  the  theory  thnt 
the  trust,  at  the  time  of  its  creation,  was 
a  valid  one,  but  had  since  become  void 
through  the  Impossibility  of  carrj'lnjf  out 
its  objects.  But  it  was  thought  proper,  and 
perhaps  helpful  as  a  matter  of  pleading,  to 
point  out  why  the  allegations  of  the  peti- 
tion that  the  grantor's  objects  and  purposes 
were  not  being  carried  out  were  insufficient, 
and  the  demurrers  thereto  would  have  had 
to  be  sustained,  if  a  dlCTerent  view  had  been 
taken  of  the  question  of  adverse  possession. 

The  lower  court  by  its  order  dismissing 
the  petition  correctly  expressed  the  man- 
dates of  this  court. 

Decree  affirmed ;  the  appellants  to  pay  the 
sosts. 


(130  Md.  6M) 

H0E3N  V,  KIDD. 


(No.  69.) 


(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

Bkokkbs  «=s>8S(1)— Couuission— Recovert— 
Jury  Qxtestion. 
In  an  action  for  commissions  on  the  sole  of 
timber,  held  that  the  case  was  properly  submit- 
ted to  the  jury :  the  evidence  as  to  die  agree- 
ment that  defendant  was  to  be  the  judge  wheth- 
er plaintiff  actually  made  the  sale  being  contra- 
dictory. 

Appeal  from  Circuit  Court,  Baltimore  Coun- 
ty;  Frank  I.  Duncan,  Judge. 

Action  by  Frank  B.  Kldd  against  Frank  N. 
Eoen.  Jud^nent  for  plaintiff,  and  defendant 
appeals.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BURKE, 
THOMAS,  PATTISON,  URNER,  and  STOCK- 
BRIDGE,  JJ. 

Elmer  J.  Cook,  of  Towson  (Frank  J.  Hora 
and  Willis  &  Willis,  all  of  Baltimore,  on  the 
brief),  for  appellant  T.  Scott  Offutt,  of  Tow- 
son,  for  appellee. 

STOCKBRTDGK,  J.  This  appeal  is  from  a 
Judgment  for  |170,  rendered  in  the  circuit 
court  for  Baltimore  county  in  a  suit  to  re- 
cover commissions  on  a  sale  of  timber  grow- 
ing on  some  land  belonging  to  the  appellant. 
There  is  but  one  bill  of  exceptions.  That 
was  reserved  to  the  action  of  the  trial  court 
upon  tlie  prayers.  The  first  instruction  asked 
for  by  the  defendant  was  that  there  was  no 
evidence  legally  sufilclent  to  entitle  the  plain- 
tur  to  recover,  and  that  the  verdict  must  be 
for  the  defendant.  It  is  upon  tlie  rejection 
«f  this  prayer  that  the  appellant  lays  the 
most  stress,  and  it  is  to  this  that  considera- 
tion must  first  be  given. 

In  the  early  part  of  September,  1915,  Mr. 
Kldd,  a  real  estate  broker,  called  on  Mr. 
Frank  H.  Hoen  relative  to  a  sale  of  the  tim- 
ber on  some  200  acres  of  land  belonging  to 
the  latter  in  Baltimore  county.  He  produced 
a  contract  which  Mr.  Hoen  refused  to  sign. 
Mr.  Kldd  got  up  to  leave,  saying : 


"  1  can't  do  any  business  with  yon?  and  I 
said,  'No,  sir:  none  at  all;'  and  be  started  oat 
the  door,  and  then  he  came  back  and  he  said, 
'Now,  Mr.  Hoen,  suppose  I  could  procure  a 
purchaser  for  this  tract  of  timber;  you  woald 
not  object  to  paying  me  the  commission?'  and  I 
said,  'No;  if  I  could  know  you  were  able  to  sell 
it  and  actually  did  it,  I  would  not  object  to 
paying  yon  the  commission,  but  under  no  cir- 
cumstances would  I  give  you  the  order  or  com- 
mission you  to  act  for  me  in  the  premises  at  all; 
I  would  have  to  be  the  judge  as  to  wfaeUier  yon 
actually  made  the  sale  or  not ;'  he  said,  "That  is 
perfectly  satisfactory  to  me;  you  are  responsi- 
ble; that  is  perfectly  satisfactory;'  and  with 
that  he  went  out." 

This  is  the  account  of  the  first  Interview 
as  given  by  Mr.  Hoen.  Mr.  Kldd'a  version 
is  much  shorter.  He  denies  positively  the 
statement  that  Mr.  Hoen  was  to  be  the  judge 
whether  Mr.  Kldd  made  the  sale  or  not,  and 
described  the  Interview  In  this  way : 

"I  told  him  I  was  in  the  real  estate  business 
and  sold  farms  and  also  sold  timber,  and  Mr. 
Hoen  said  that  if  I  would  bring  or  send  a  man 
I  would  get  five  per  cent,  commissions,  and 
he  asked,  first,  who  paid  the  commissions  and 
I  snid,  the  man  selling  it,  and  I  told  him  T  sold 
farms  too,  and  I  think  I  left  him  a  form — I  for- 
get what  you  call  it— «  form  where  yon  fill  oat 
a  blank  form." 

Mr.  Kldd  went  to  Natwldi  &  Co.  to  en- 
deavor to  Induce  them  to  purchase  the  timber, 
and  on  September  14th  this  firm  wrote  to  Mr. 
Eoen,  looking  to  a  possible  purchase.  This 
letter  was  followed  up  by  a  call  on  Mr.  Hoen 
by  Mr.  Natwick  on  October  Slst  The  prog- 
ress was  slow,  and  the  deal  not  finally  con- 
summated until  January  26,  1916,  but  negoti- 
ations do  not  seem  to  have  been  ever  definite- 
ly broken  off,  and  on  frequent  occasions, 
either  by  calls  or  conversations  over  the  tele- 
phone, Mr.  Kldd  continued  to  pr^  the  com- 
pletion of  the  sale. 

At  some  time  during  this  period  a  Mr.  Sny- 
der appears  upon  the  scene,  and  it  Is  sug- 
gested that  he  was  or  might  have  been  the 
efficient  cause  In  consummating  the  transac- 
tion. Mr.  Natwlck's  testimony  In  relation 
to  Snyder  makes  It  seem  as  though  his  call 
was  of  a  social  rather  than  business  nature. 
The  case  as  presented,  therefore,  cannot  be 
said  to  have  been  so  entirely  devoid  of  evi- 
dence as  to  warrant  the  court  in  withdrawing 
It  from  the  consideration  of  the  jury.  On 
one  material  point  there  was  a  direct  contra- 
diction between  the  plaintiff  and  defendant 
and;  it  was  for  a  jury,  not  the  oouit,  to  any 
which  was  the  correct  version. 

The  subject  of  real  estate  brokers  commis- 
sions has  been  a  most  fruitful  occasion  for 
litigation,  and  decisions  defining  the  law 
governing  them  can  be  found  in  every  state 
in  this  country.  Nowhere  have  the  prin- 
ciples controlling  such  controversies  been 
more  clearly  stated  than  In  Maryland.  Sach 
cases  as  Keener  v.  Harrod,  2  Md.  70,  56  Am. 
Dec.  706;  Martlen  v.  Baltimore,  109  Md.  260, 
71  Atl.  966;  Walker  v.  Baldwin,  106  Md. 
C32,  68  Att.  25;    Slagle  v.  Russell,  114  Md. 


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Md.) 


BECKEB  Y.  FSEDEBtCK  W.  U?PS  CO. 


783 


418,  80  A(L  164;  Way  r.  Turner,  127  Md. 
327,  96  AtL  676,  and  Daniels  t.  Iglohart, 
dedded  at  the  present  term  (no  opinion 
filed),  have  fnlly  covered  every  principle  In- 
volved in  tUs  case,  and  a  mere  repetition  of 
what  was  said  in  these  cases  would  be  super- 
fluous. 

Objection  to  the  other  prayers  was  not 
strenuously  Insisted  on,  and,  even  U  It  had 
been,  no  reversible  error  is  apparent  in  any 
of  them ;  and,  as  the  plaintiff  produced  suffl- 
deat  evidence  to  require  the  submission  of 
the  case  to  a  lury,  the  Judgment  appealed 
from  will  be  affirmed. 

Judgment  affirmed. 


cm  Md.  301) 

BECKER  V.  FREDERICK  W.  LIPPS  CO. 

(No.  57.) 
(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  EouiTT  <g=34a— Legal  Remkdy. 

Where  plaintiff's  rlgbt  of  action  is  not  de- 
pendent upon  or  based  upon  some  equitable  mat- 
ter, such  as  fraud,  mistake,  accident,  trust,  ac- 
counting, or  the  like,  and  the  legal  remedy  would 
be  complete,  adequate,  and  certain,  courts  of 
equity  nave  no  concurrent  jurisdiction,  and  will 
not  interpose. 

2.  Account  $=»12  —  Surr  poe  Accountiro  — 
Bnx. 

Bill  in  equity  brought  by  the  purchaser  of  a 
year's  output  of  empty  barrels  from  a  manufac- 
turer of  confections,  which  bill  alleged  that  the 
confectioner  failed  to  deliver  empty  sngar  bar- 
rels, and  that  plaintiff  had  no  way  to  ascertain 
what  number  constituted  the  entire  output  of 
sugar  barrels  for  the  year,  and  prayed  for  a 
discovery  and  accounting  and  damages,  could 
not  be  maintained  as  a  suit  for  an  accounting. 

3.  DiSCOVEBT    «C>6— ADXIUART    REHEDT. 

Discovery  In  equity  to  support  an. action  at 
law  or  as  auxiliary  to  the  maintenance  of  a 
suit  contemplated  to  be  brought  can  be  resorted 
to  only  where  the  discovery  Is  essential  and 
absolutely    nccessarv    to   the   establishment   of 

elalntifi*8   rights,   and   the  information  caanot 
e  otherwise  obtained.   . 

4.  DiscovBBY  <S=>3  —  Bill  —  PossiBiLrrr  of 
Discovery  at  I,aw— Statutb. 

Bill  by  nnrehaser  of  a  year's  output  of  empty 
sugar  barrels  from  a  confectioner,  which  alleged 
oondelivery,  and  prt^yed  discovery,  and  a  judg- 
'  ment  for  uamagos,  was  not  maintainable  Ss  a 
bill  for  discovery,  so  that  the  court  would  pro- 
ceed to  detenoine  the  whole  matter  in  contro- 
versy, as  the  discovery  prayed  for  would  have 
been  avoilable  to  plaintiff  under  Code  Pub.  Gen. 
Laws  1904,  art.  75,  H  99  and  100,  providing 
mode  of  procuring  production  of  books,  papers, 
and  testimony  in  a  court  of  law. 

Appeal  from  (Ml-cult  Court  of  Baltimore 
City ;    H.  Arthur  Stump.  Judge. 

"To  be  bfHdflUy  reportedi" 

Salt  by  WUUam  Becker,  trading  as  Wil- 
liam Becker  &■  Co.,  against  the  Frederick  W. 
Llpps  Company,  a  body  corporate.  From  an 
order  sastainlng  demurrer  and  dlsmlssUig  the 
bill,  plaintiff  appeals.    Order  affirmed. 

Argued  t)efore  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  TJRNER, 
STOCKBRIDQB,  and  CONSTABLE,  JJ. 

Louis  S.  Ashman  and  George  Weems  Wil- 
liams, both  of  Baltimore  (Lucius  Q.  C.  Ia- 


mt^r,  of  BfUtimoie,  on  the  brief),  for  appellant. 
Laurie  H.  Rlggs,  of  Baltimore  (C.  R.  Watten- 
Scheldt,  of  Baltimore,  On  the  brief),  for  ap- 
pellee. 

BRISCOE,  J.  The  questions  for  decision 
in  this  case  are  raised  upon  a  demurrer  to 
a  bill  in  equity  which  was  sustained  by  the 
circuit  court  of  Baltimore  city.  The  bill 
was  accordingly  dismissed,  and  leave  of  the 
plaintiff  to  amend  was  denied. 

The  principal  defense  made  on  the  demur- 
rer and  relied  upon  in  argument  is  that  the 
circuit  court  of  Baltimore  dty  has  no  juris- 
diction of  the  subject-matter  of  the  suit,  be- 
cause the  cause  of  action  and  relief  demand- 
ed are  fully  legal  in  their  nature  and  prop- 
erty cognizable  in  a  court  of  law. 

'The  facts  of  the  case  out  of  which  the  con- 
troversy arose  and  upon  whidi  the  decision 
of  the  case  must  turn  are  stated  and  ap- 
pear from  the  averments  of  the  bill  and  are 
admitted  by  the  demurrer  to  be  true.  They 
are  these: 

The  plaintiff  is  engaged  in  Che  cooperage 
business  in  the  city  of  Baltimore,  and  in  the 
conduct  of  the  business  and  in  connection 
therewith  buys  and  sella  empty  barrels  of 
various  kinds.  The  defendant  Is  engaged  in 
the  manufacture  and  selling  of  chocolate  and 
confections  in  the  city  of  Baltimore,  and  in 
connection  with  its  business  has  on  hand  a 
large'  number  of  empty-  barrels  of  different 
kinds  for  sale.  On  August  8,  1916,  the  plain- 
tiff agreed  to  purchase  and  the  detendant 
agreed  to  sell  all  of  defendant's  output  of 
empty  barrels  for  the  period  of  one  year 
from  the  15th  of  July,  1015,  to  the  IGth  of 
July,  1016,  upon  the  telrms,  eosdltloils,  and 
prices  provided  by  a  contract  between  the 
parties,  which  will  awre  fuUy  appear  from 
the  averments  of  the  bill  disclosed  by  the 
record  now  -  before  vs.  The  contract  was 
signed  in  duplicate.  Is  filed  with  the  bill,  as 
Plaintiffs  Exhibit  No.  4,  and  is  as  foUows: 
"Baltimoie,  Md.,  7/15/15. 

"This  agreement  made  thia  15th  day  of  July, 
1915,  between  Wm.  Becker  &  Co.,  parties  of  the 
first  part,  and  the  Frederick  W.  Lippg  Company, 
parties  of  the  second  part,  all  Of  Baltimore  city: 

"Parties  of  the  first  part  agree  to  purehaae 
and  parties  of  the  second  .part  agree. to  soil  all 
of  their  entire  output  of  empty  barrels,  as  they 
run,  no  deductions  to,  be  made  for  damaged 
barrels,  unless  by  mutual  consent,  prices  as  fol- 
lows: •    •' 

CondenMd  milk  oak  barrelai ; .'.....  (1.00 

Soft  wood  oDDdessed  milk  b«rr*U 60 

Olucoso  barrels 90 

Headdown  glucose  barrels .75 

Bingrle  bead  glacose  barrels .60 

Qraln- alcohol  and  spirit  barrela. 1.00 

Olive  oil  and  cotton  seed  barrels 1.00 

Engine,  cylinder,  dynamo  oil  barrels 8E> 

Double  head  sugar  barrels .20 

Damaged  and  single  bead  sugar  barrels IS 

Cocoaout,  originally  augar  barrela....... IS 

"And  all  other  empty  packages  not  mentioned 
above  to  be  accepted  at  the  ruling  market  prices. 

"The  parties  of  the  first  part  guarantee  the 
above  prices  for  one  year  from  date,  and  agree 


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784 


101  ATLANTIO  REPORTBB 


(M«. 


to  promptly  remore  oil  barrels  when  notified  by  j 
the  partiei  of  the  second  part. 

"Witness  the  signature  of  the  parties  of  the 
first  part  and  the  parties  of  the  second  part 
duly  authorized  to  sign  this  agreement. 

"Terms:    Cash  on  delivery. 

"Accepted  August  5,  1915. 

"The  Frederick  W.  Lipps  Oa,    [SeaL] 
"By  Frederick  W.  Lipps,  Pres." 

The  bill  alleges  that  the  defendant  failed 
to  deliver  to  him  the  entire  output  of  empty 
sugar  barrels,  as  under  the  contract  It  was 
required  to  do,  but  has  at  all  times  refused 
to  deliver  any  of  said  barrels,  although  often 
demanded  so  to  do;  that  the  defendant  has 
broken  the  contract,  and  as  a  result  thereof 
the  plaintiff  has  suffered  a  very  substantial 
loss  and  damage  therefrom. 

The  bill  then  alleges  that  the  plaintiff  has 
no  way  or  means  of  ascertaining  what  num- 
ber  In  fact  constituted  the  defendant's  en* 
tire  output  of  sugar  barrels  for  the  period 
of  one  year  mentioned  in  the  contract  be- 
cause the  facts  and  the  means  of  ascertaining 
them  are  in  the  exclusive  keeping  and  pos- 
session of  the  defendant 

The  prayer  of  the  bill  is,  in  substance, 
that  a  court  of  equity  decree  a  discovery,  an 
accounting,  and  the  defendant  also  be  de- 
creed to  pay  the  sum  ascertained  to  be  due 
the  plaintiff  as  damages  for  a  bread)  of  the 
contract,  and  such  other  and  further  relief 
as  the  ca;ae  may  rcQuire. 

It  is  contended  upon  the  part  of  the  de- 
fendant in  support  of  the  demorrer  that  the 
plaintiff's  relief  or  remedy.  If  any,  is  an  ac- 
tion at  law  for  the  recovery  of  damages  for  a 
breach  of  contract ;  that  a  court  of  equity  is 
witbont  Jurisdiction  to  entertain  this  bill,  and 
the  plaintiff  ought  to  be  left  to  his  remedy  at 
law. 

On  the  other  liand.  It  Is  urged  by  the 
plaintiff  that  the  Mil  is  one  for  an  account- 
ing and  a  discovery,  and  that  a  court  of  eq- 
uity has  concurrent  Jurisdiction  to  hear  and 
determine  the  case  under  the  averments  of 
the  Idll.  The  doctrine  is  well  settled  in  this 
state  that,  where  a  party  has  a  certain,  com- 
plete, and  adequate  remedy  at  law,  he  can- 
not sue  in  equity.  The  cause  of  action  in 
this  cases  it  will  be  seen,  is  clearly  and  pri- 
marily a  legal  one,  arising  from  the  nonper- 
formance of  a  contract  to  deliver  sugar  bar- 
rels, and  for  the  breach  of  which  damages 
are  sought  to  be  recovered  by  the  plaintiff 
from  the  defendant 

[1]  In  such  cases,  where  the  right  of  ac- 
tion is  not  dependent  upon  or  based  upon 
some  equitable  matter  such  as  fraud,  mistake, 
accident,  trust,  accounting,  or  the  like,  and 
the  legal  remedy  would  be  complete,  sufiB- 
dent,  and  certain,  courts  of  equity  have  no 
concurrent  Jurisdiction,  and  will  not  inter- 
pose. 1  Pomeroy,  Bq.  Jurisprudence,  |i  17S- 
236;  Price  v.  Tyson,  3  Bland,  399,  22  Am. 
Dec.  2T9;  Powles  v.  Dllley,  9  Gill,  238; 
Taylor  v.  Ferguson,  4  Har.  &  J.  46. 

In  Oliver  v.  Palmer.  11  GUI  &  J.  444,  It 
is  said,  U  In  a  case  like  the  present,  where 


the  dalm  asserted  Is  stilctly  legal  In  lt» 
form  and  substance,  where  the  remedy  at 
law  Is  expeditious  and  ample,  you  grant  to 
the  court  of  equity  the  power  ascribed  to  It 
upon  the  principles  upon  which  it  is  daimedr 
there  Is  scarcely  a  case  resting  in  contract 
and  now  cognizable  in  a  court  of  law  whidt 
may  not  be  drawn  into  the  vortex  of  chan- 
cery Jurisdiction. 

[2]  It  is  quite  certain  that  the  bill  In  this 
case  cannot  be  sustained  or  maintained  as  a 
suit  in  equity  for  an  aocoanting.  Its  alle- 
gations are  not  audi  as  to  bring  It  vitbln 
that  class  of  cases  where  a  court  of  equity 
will  take  Jurisdiction  for  an  account  Mil> 
ler's  Equity,  |  721,  p.  823;  1  Pomeroy,  Eq- 
uity Jurisprudence,  {  230;  Taylor  v.  Fergu- 
son, 4  Har.  &  J.  46.  But  It  Is  insisted  on  the 
part  of  the  appellant  that  the  bill  is  framed 
for  discovery,  as  well  as  for  relief,  and  the 
court,  being  righUy  in  possession  of  the 
cause,  will  proceed  to  determine  the  whole 
matter  In  controversy. 

[3]  There  are  cases  where  a  discovery  may 
be  had  not  only  to  support  an  action  at  law, 
but  as  auxiliary  to  the  maintenance  of  a 
suit  contemplated  to  be  brought  but  they  are 
cases  where  the  discovery  is  essential  and 
absolutdy  necessary  to  the  establishment  of 
the  plaintltTs  rights,  and  the  information 
cannot  be  otherwise  attained.  Wolf  ▼.  Wolf, 
2  Har.  &  J.  382,  18  Am.  Dec.  313;  Parrott  ▼. 
Ohestertown  Bank,  88  Md.  615,  41  AtL  1067 ; 
Heinz  v.  German  Bldg.  Ass'n,  95  Md.  160,  51 
AtL  951 ;  Union  Passenger  Railway  Co.  v.  M^ 
&  C.  C,  71  Md.  238,  17  AtL  933. 

The  general  principle  is  stated  in  Russell 
V.  Clark,  7  Crancfa,  90,  3  L.  Ed.  271,  as  fol- 
lows: 

"It  la  true  that,  if  certain  facts  essential  to- 
the  merits  of  a  claim  purely  legal  be  exclusively 
within  the  knowledge  of  the  party  against  whom 
that  daim  is  asserted,  he  may  be  required  in 
a  court  of  chancery  to  disdose  those  facta,  and 
the  court  being  tnus  rightly  in  poBsession  of 
the  cause,  will  proceed  to  determine  the  whole 
matter  in  controversy." 

In  Phelps'  Juridical  Equity,  169,  it  is  said 
that  not  much  stress  is  now  laid  npon  the 
auxiliary  Jurisdiction  of  courts  of  equity,, 
meaning  the  power  to  compel  discovery,  pro- 
duce docnments,  etc,  since  those  powers 
have  been  by  statute  conferred  upon  the 
courts  of  law,  and  the  necessity  for  the  aux- 
iliary Jurisdiction  may  be  said  to  be  prac- 
tically almost  entirely  superseded,  although 
still  occasionally  resorted  ta  1  Pomeroy. 
Bq.  Jur.  ii  83,  124,  143.  215:  artide  75.  tf 
98,  90,  and  100,  Code  P.  O.  Laws. 

In  the  present  case  the  discovery  son^t 
by  the  bill  was  a  detailed  statement  of  the 
number  of  sngar  barrels  constituting  defend- 
ant's entire  ou^nt  for  the  year  beginnings 
July  16,  1915,  and  ending  July  15,  1916,  and 
that  the  defendant  be  required  by  decree  of 
this  court  to  pay  the  plaintiff  the  sum  as- 
certained to  be  due. 

[4]  It  is  clear  that  the  discovery  prayed 
for  in  the  bill  would  have  been  aTallable  to 


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WIIiHELK  Y.  MITCHBLL 


785 


the  plaintiff,  under  article  75,  |{  99  and  100, 
of  tbe  Code  In  a  court  of  law,  where  tbe 
mode  of  procuring  the  production  of  books, 
papers,  and  testimony  Is  provided  for  In  as 
ample  a  manner  as  In  a  court  of  equity,  and 
where  there  Is  an  adequate,  complete,  and 
anffldent  remedy  pointed  out  by  law,  courts 
of  equity  will  not  Interpose. 

For  the  reasons  which  we  have  stated,  we 
do  not  think  the  appellant  has  made  out  such 
a  case  as  entitles  him  to  relief  In  a  court  of 
equity,  but  that  his  case  Is  properly  cogniza- 
ble in  a  court  of  law. 

The  order  of  the  court  below  sustaining 
the  demurrer  and  dismissing  the  bill  will  be 
affirmed. 

Order  affirmed,  with  costs. 


(131  Hd.  868) 

WILHEI/M  T.   MITOHBLIi,     (No.  22.) 
(Court  of  Appeals  of  Maryland.    Aug- 11>  1917.) 

CODBTS  «=>184— COtJNTT  COTJBTB— SUFTICIBN- 

CT  OF  Declabatioit. 
Under  section  18g  of  the  "Speedy  Judgment 
Act"  for  Baltimore  comity  (Acts  1894,  c.  631, 
as  amended  by  Acte  1912,  c.  385,  AcU  1914,  c. 
817,  and  Acto  1916,  c  184),  providing  that 
plaintiff  shall  not  be  entitled  to  judgment  un- 
lesa  in  an  action  founded  upon  an  implied  ccm- 
tract  he  state  -  the  particulars  of  the  indebted- 
ness, a  declaration  on  the  common  counts  for 
a  physician's  services,  two  of  the  items  being, 
"To  amount  of  account  rendered  August  31, 
1907,  $183,"  "to  amount  of  account  rendered 
May  6,  1908,  $29,"  without  disclosing  to  whom 
tbe  accounts  were  rendered  or  the  nature  of  the 
indebtedness  or  when  it  was  incurred,  gave  the 
court  no  jarisdiction  to  enter  judgment  thereon. 

Appeal  from  Circuit  Court,  Baltimore 
County;  Frank  I.  Duncan,  Judge. 

Action  by  Dr.  A.  B.  Mitchell  against  Clar- 
ence M.  Wllhelm,  administrator  of  Mary  J. 
Wllhelm,  deceased.  From  an  order  of  the 
circuit  court  for  Baltimore  county  overruling 
a  motion  to  strike  out  a  Judgment  in  favor 
of  the  plaintiff,  defendant  appeals.  Beversed, 
and  new  trial  awarded. 

Argued  before  BOYD,  a  X,  and  BUBKB, 
THOMAS,  PATTISON,  URNKB,  and 
STOOKBRIDGB,  JJ. 

O.  Parker  Baker,  of  Baltimore,  for  appel- 
lant. T.  Scott  Offutt,  of  Towson  (John  Mays 
Little,  of  Towson,  on  the  brief),  for  appellee. 

PATTISON,  J,  This  is  an  appeal  from  an 
order  of  the  circuit  court  for  Baltimore  coun- 
ty, overruling  a  motion  to  strike  out  a  Judg- 
ment entered  in  favor  of  the  appellee  against 
the  appellant. 

The  siiit  in  which  the  Judgment  sought  to 
be  stricken  out  was  rendered,  was  brought 
on  May  26.  1916.  under  what  is  known  as 
"the  Speedy  Judgment  Act"  for  Baltimore 
county,  chapter  631  of  the  Acts  of  1894,  as 
amended  by  Chapter  385  of  the  Acts  of  1912, 
chapter  817  of  tbe  Acts  of  1914,  and  chapter 
184  of  the  Acts  of  1916. 


The  declaration  contained  the  common 
counts  only,  and  with  it  was  filed  the  follow- 
ing account  or  cause  of  action  verified  by  the 
affidavit  of  the  plaintiff: 

Monkt<m,  Md.,  March  27,  1916. 

Estate  of  Mrs.  Mary  J.  Wilhelm,  to  Dr.  A.  R. 
Mitchell,  Dr. 

To  amt  of  acct.  rendered  Aug.  81, 

1907 $183  00 

To  amt  of  acct.  rendered  May  6, 

1908 28  00 

To  subsequmt  attention  as  fed- 

lows: 

1908,  May  & 

1912,  May  28. 

1915.  Feb.  15.  Feb.  26,  Feb.  27, 

fS.  28 8  25 


$219  45 


$10  00 

10  00 

8  00 

25  00 


Credito: 

1909,  June  21,  cash 

Oct.  28,  cash 

1910,  Aug.  2,  cash 

Aug.  29,  cash 

Balance    $166  46  $53  00 

1916  Feb.  23  by  check  on  account    53  00 

The  defendant  being  duly  summoned,  but 
falling  to  appear  and  plead  to  the  declara- 
tion within  the  time  prescribed  by  the  stat- 
ute, the  plaintiff  filed  his  motion  in  writing, 
as  provided  by  the  act,  asking  "the  court  to 
enter  a  Judgment  by  default  against  the  de- 
fendant for  want  of  proper  plea,  affidavit, 
and  certificate,  as  required  by  the  statute 
in  such  case  made  and  provided  and  •  •  • 
to  extend  said  Judgment."  Upon  this  mo- 
tion a  Judgment  was  entered  by  order  of  the 
court.  Thereafter  the  defendant  filed  his  mo- 
tion to  strike  out  the  Judgment  so  entered, 
assigning  as  one  of  the  reasons  therefor  the 
insufficiency  of  the  account  under  the  provi- 
sion of  the  act,  under  which  the  action  was 
brought  and  the  Judgment  rendered.  This 
motion  was  overruled,  and  it  is  from  the  ac- 
tion of  the  conrt  in  overruling  it  that  this 
appeal  is  taken.  The  act  provides  (chapter 
631,  i  18g,  of  the  Acts  of  1894),  that  the 
plaintiff  shall  not  be  entitled  to  Judgment 
under  the  provisions  of  said  act,  "unless  at 
the  time  of  bringing  his  action,  he  shall  file 
bis  declaration,  with  an  affidavit,  or  affirma- 
tion, •  •  •  stating  the  true  amount  the 
defendant  is  indebted  to  him  over  and  above 
all  discounts,  and  •  •  •  if  the  action  be 
formed  upon  a  verbal  or  implied  contract 
shall  ffle  his  statement  of  the  particulars  of 
the  defendant's  indebtedness  thereunder." 

Tbe  account,  as  stated  above,  is  the  only 
cause  of  acticm  that  was  filed  In  the  case, 
and  should  it  be  found  that  it  does  not  meet 
the  requirements  of  the  statute,  in  that  it 
fails  to  give  a  statement  of  the  particulars  of 
the  defendant's  indebtedness,  tbe  plaintiff 
was  not  entitled  to  Judgment  by  default  un- 
der the  aforesaid  statute,  and  the  court  was 
without  Jurisdlctioa  to  enter  the  Judgment, 
and  its  Irregular  entry  could  in  no  way  aid 


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101  ATLANTIC  RBFOKIBB 


did. 


or  supply  that  want  of  Jurisdiction.  ThlU- 
man  v.  Shadricfc,  69  Md.  530, 16  Atl.  138.  As 
stated  In  Adler  t.  Crook,  68  Md.  494,  13  AtL 
153: 

"The  object  of  the  act  was,  in  cases  to  which 
it  applied,  to  obtain  from  both  plaintiff  and 
defendant  a  definite  and  sworn  statement  of  both 
the  claim  and  the  defense  (if  any)  so  that  the 
parties  might  know  exactly  wherein  they  dif- 
fered and  shape  their  actions  accordingly." 

It  will  be  seen  from  an  examlnntion  of 
the  account  which  Is  dated  March  27,  1915, 
that  It  contains  but  three  debit  Items, 
amounting  In  all  to  $219.25.  Two  of  these 
Items  aggregate  |211,  and  are  stated  as  fol- 
lows: 

To  amt.  of  acct  rendered  Aae.  31, 1907  $183.00 
To  amt  of  acct.  rendered  May  6,  1908    28.00 

It  appears  from  these  items  that  two  sep- 
arate accounts  were  rendered  to  some  one, 
but  to  whom  they  do  not  disclose,  nine  and 
eight  years,  respectively,  before  the  Institu- 
tion of  this  suit.  It  is  not  shown  by  the 
account  filed  what  these  accounts  so  render- 
«d  contained,  and  there  Is  nothing  in  the 
Items  themselves  showing  the  nature  and 
character  of  the  alleged  indebtedness  or 
when  the  same  was  Incurredi,  To  us  It  Is 
clear  that  the  account  as  filed  does  not  set 
forth  the  partlcnlars  of  such  alleged  indebt- 
ednesa  as  required  by  the  statute,  and  there- 
fore the  Judgment  was,  in  our  opinion, 
wrongfully  entered  under  the  statute,  and 
should  have  been  stricken  out  under  the  mo- 
tion filed. 

It  Is  contended  by  the  appellee  that  as  the 
defendant  was  regularly  summoned  and  fail- 
ed to  file  his  plea,  the  plaintiff,  irrespective 
of  the  statue,  was,  at  the  time  of  the  entry 
of  the  Judgment,  entitled,  under  the  rules  of 
the  court,  to  a  Judgment  by  default  for  want 
of  such  plea,  and  therefore  should  it  be  held 
that  the  Judgment  could  not  have  been  prop- 
erly entered  under  the  statute,  for  the  rea- 
son here  assigned,  its  entry  was  proper  under 
the  rule  of  the  drouit  court,  because  of  the 
failure  of  the  defendant  to  file  his  idea. 

The  rules  of  the  court  below  are  not  be- 
fore us,  but  whatever  may  be  said  of  the 
pialntUTs  rights  thereunder  to  a  Judgment  by 
default  for  want  of  a  plea.  It  is  clearly 
shown  by  the  record  that  the  Judgment  was 
not  entered  under  such  rule  of  the  court,  but 
was  entered  under  the  statute  (chapter  631 
of  the  Acts  of  1894),  as  amended  by  the  sub- 
sequent acts  named  above  and  as  we  have 
said  was  wrongfully  entered  thereunder. 

Holding  as  we  do  that  the  court. was  In 
error  in  Its'  refusal  to  strike  out  the  Judg- 
ment, Its  rulings  will  be  reversed  and  fl  new 
trial  awarded  so  that  the  Judgment  wrong- ' 
fully  entered  may  be  stricken  out  and  an 
opportunity  given  to  the  defendant  to  present 
his  defense  upon  the  merits. 

Judgment  reversed,  and  new  trial  awarded.  ■ 


cm  Ud.  31S) 
BOABD  OF  POIiICEl  OOMR8  ▼.  McCLENE- 

HAN.     (No«u  58  to  67.) 
(Court  of  Appeals  of  Maryland.    Jane  28, 1917.) 

1.  Statutes   «=»76(2)— Local  Laws— Atpu- 

CABIUTY   OF   EXISTINQ    LAWS. 

Acts  1914,  c.  600,  Acte  1906,  c.  63,  Acts 
1900,  c.  5(50,  Acts  1908,  cc.  92,  192.  Acta  1902, 
c.  280,  Acta  1914,  c.  493,  Acts  1906,  c.  335, 
Acts  1914,  c.  486,  Acts  1904,  c.  682,  and  Acts 
1916,  c.  212,  directing  the  board  of  police  com- 
missioners of  Baltimore  to  pension  a  retired 
matron  of  the  station  house,  tue  widow  of  a  de- 
ceased member,  and  certain  ex  members  of  the 
police  force,  are  not  in  ciKifiict  with  Const,  art. 
3,  i  33,  prohibiting  the  passage  of  any  special 
law  where  provision  has  been  made  by  eustiug 
law;  such  pensions  not  being  payable  under 
the  pension  laws  existing  at  the  tune  the  several 
acta  were  enacted. 

2.  MUNICIFAI.     COBPORATIONS     «=»187  —  PKK- 

sioNs— Statutii>-Discbetion. 
Although  Acte  1906,  c.  63,  authorizing  the 
police  commissioners  of  Baltimore  to  pension 
a  former  policeman,  was  discretionary,  and  not 
mandatory,  where  the  matter  had  been  acted 
upon  by  the  board  then  in  office,  subsequent 
boards  could  not  revoke  it. 

Appeals  from  Superior  Court  of  Baltimore 
City ;   James  M.  Ambler,  Judge. 

Ten  petitions  fon  mandamus  by  E.  £L  Mc- 
Cleuehan  and  nine  others  against  the  Board 
of  Police  Commissioners.  The  court  ordered 
a  writ  of  mandamus  to  issue  in  each  case, 
and  the  B«ard  appeals.  Order  affirmed  in 
each  case. 

Argued  before  BOYD,  C.  J.,  and  BBJS- 
COB,  BUBKB,  THOMAS,  PATTISON, 
UltNER.  STOCEBBIUGE,  and  CONSTA- 
BLE, JJ. 

Ogle  Marbury,  Asst.  Atty.  Oen.,  and  Al- 
bert C.  Ritchie,  Atty.  Gen.,  for  appelant. 
Isaac  Lobe  Straus,  of  Baltimore,  for  appel- 
lees. 

BOYD,  O.  J.  Ten  cases  were  by  agree- 
ment of  the  parties  and  with  the  consent  of 
the  court  bound  in  one  record,  the  main  ques- 
tions being  involved  In  all  of  them.  Each  of 
the  ten  appellees  filed  a  petition  for  a  man- 
damus against  the  board  of  police  commis- 
sioners of  Baltimore  dty  to  require  that 
board  to  obey  the  provlMons  and  directions 
of  one  or  more  acts  of  the  General  Assembly 
of  Maryland  named  in  the  petition,  and  to 
pay  the  petitioner  the  sum  named  In  such 
act  or  acts.  The  main  defense  relied  on  in 
the  answers  was  that  the  acts  were  special 
laws  prohibited  by  article  3,  {  33,  of  the 
state  Constitiition,  and  were  therefore  un- 
constitutional and  void.  Agreed  statements 
of  facts  were  filed  in  the  cases,  and  the  low- 
er court  ordered  a  writ  of  mandamus  to  is- 
sue in  each  case,  and  gave  Judgment  for  the 
petitioner  for  costs.  Appeals  from  those  sev- 
eral orders  and  Judgment  are  now  before  us. 

Chapter  459  of  the  Acts  of  1886,  being  sec- 
tion 755  9f  article  4  of  the  Local  Code  of 
1888,  provided  that: 

"All  sums  of  money  which  are  now  in,  or 
which  may   hereafter  come  into  the  hands  of 


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BOARD  OX"  POLICE  COM'BS  v.  MoCLENEHAN 


787 


the  lioard  of  poUc«  ccnmnusioiiers  for  the  dtr 
of  Baltimore,  onder  and  by  virtue  of  the  provi- 
sions of  existing  laws,  except  such  sums  as 
may  come  into  their  bands  under  and  by  virtue 
of  the  provisions  of  section  728  shall  constitute 
a  fund  to  be  known  and  accounted  for  as  the 
special  fund." 

Tbat  l8  section  776  of  the  new  charter,  and 
is  under  subtitle  "Special  Tund."  Section 
728  (747  of  revised  charter  of  ldl5)  referred 
to  money  received  from  taxes,  and  In  case  of 
a  deficiency  the  board  was  authorized  to  Is- 
sue certificates  and  raise  therefrom  a  sum 
not  exceeding  $50,000  to  meet  the  exigency. 
The  board  has  large  powers.  Including  the 
appointment  of  the  police  force,  detectives, 
matrons,  etc. 

Section  756  of  article  4,  being  Acts  1886, 
c.  458,  as  amended  by  Acts  1888,  c.  306,  pro- 
vided that,  in  addition  to  the  sums  of  mon- 
ey authorized  by  law  to  be  paid  out  of  the 
special  fund,  the  board,  whenever  in  their 
opinion  the  efficiency  of  the  service  required 
it,  were  authorized  to  retire  any  officer  of 
police,  policeman,  detective,  clerk,  or  turnkey 
appointed  by  them,  and  pay  him  out  of  said 
fund,  in  monthly  installments  a  sum  not  to 
exceed  one-third  of  the  amount  monthly  paid 
to  him  at  his  retirement,  provided  be  had 
served  faithfully  not  less  than  16  years,  or 
shall  have  been  permanently  disabled  In  the 
discharge  of  his  duties,  and  the  board  was  re- 
quired to  procure  and  file  among  their  rec- 
ords a  certificate  of  a  competent  and  reputa- 
ble physician  that  the  person  proposed  to  be 
retired  had  been  thoroughly  examined  by 
him  and  was  incapable  of .  performing  active 
police  duty,  etc.  That  section  was  amended 
by  several  acts,  so  that  as  it  is  now  in  the 
revised  charter  of  1915  it  provides  for  pay- 
ment of  a  sum  equal  to  one-half  of  that 
paid  at  retirement,  provided  he  had  sensed 
for  not  less  tlian  20  years,  and  some  other 
changes  were  made.  That  section  (75^  in 
the  new  charter  of  1S9S  is  on  a  different  sub- 
ject, and  section  777  is  the  number  of  the 
one  relating  to  retirement  of  officers  of  police, 
policemen,  detectives,  clerks,  and  turnkeys, 
but  both  sections  756  and  777  are  in  the  revis- 
ed charter.  Section  756  in  the  revised  char- 
ter requires  those  retired  to  perform  such 
X>olice  duties  as  the  board  requires,  not  to 
exceed  seven  days  during  any  year,  for  which 
service  no  compensation  is  to  be  paid  by  the 
board.  Section  756A  (revised  charter),  added 
by  Acts  1012,  c  189,  authorizes  the  board  to 
retire  any  officer  of  police,  policemen,  detec- 
tive, clerk,  or  turnkey  appointed  by  them 
who  may  be  Ineligible  In  the  way  of  length 
of  service  to  retirement  on  pay  for  life  as 
provided  by  section  756,  and  who  has  served 
faithfully  and  has  become  permanently  in- 
capacitated from  active  duty,  and  to  pay 
him  out  of  the  special  fund  a  sum  not  ex- 
ceeding one  year's  salary  allowed  by  law  to 
him  at  the  time  of  Ids  retirement,  provided  a 
certificate  is  obtained  trosn  a  majority  of  the 
police  physicians  of  Baltimore  city  tbat  he 


has  been  examined  by  them  and  tliat  he  is 
incapable  of  performing  active  duty. 

Section  776  in  the  revised  charter  is  the 
same  as  section  755  quoted  above  from  article 
4  of  the  Code  of  1888.  Section  776A  (Acts 
19(X),  c.  266)  makes  the  board  of  police  com< 
missioners  trustees  of  the  special  fund.  Sec* 
tlon  776C  states  in  detail  what  the  special 
fund  shall  consist  of — amongst  other  things, 
of  2  per  cent  of  the  salary  or  pay  of  the 
police  force  entitled  to  participate  in  the  spe- 
cial fund.  It  provides  that  it  shall  be  op- 
tional with  any  member  of  the  police  force  to 
contribute  the  2  per  cent,  but  that  no  mem- 
ber shall  x>srticipatB  in  the  special  fund  un- 
less he  does  so  contribute.  The  confusion 
arising  from  having  two  sections  of  the  char- 
ter as  much  alike  as  756  and  777  seems  to 
have  begun  in  1886.  The  new  charter  la 
chapter  123  of  the  acts  of  that  session,  and 
in  that  what  was  section  756  of  article  4 
in  Code  of  1888  was  made  section  777,  but 
chapter  494  of  the  Acts  of  1888,  evidently 
drawn  before  the  new  charter  was  passed. 
In  amending  the  provision  for  retirement  re- 
ferred to  it  as  section  756.  Then  chapter  233 
of  Acts  of  1900,  chapter  81  of  Acts  of  1902. 
chapter  391  of  Acts  of  1910,  and  chapter  189 
of  Acts  of  1912  continued  to  refer  to  it  as 
section  756.  Then  chapter  667  of  Acts  of 
1912,  'which  is  the  last  act  signed,  referred  to 
the  fact  that  chapter  391  of  Acts  of  1910  had 
erroneously  stated  the  section  to  be  756  in 
lieu  of  777,  the  correct  number  Intended  to  be 
amended,  and  repealed  and  re-enacted  as  777. 
It  would  seem  therefore  to  be  clear  that  sec- 
tion 777  as  amended  by  chapter  567  of  Acts 
of  1912  is  now  the  statute  in  force  on  the 
subject,  and,  in  so  far  as  there  is  any  Con- 
flict between  it  and  what  was  called  section 
75G  In  above  statute,  section  777  must  pre- 
vail. It  could  not  have  been  Intended  to  have 
two  such  sections  in  the  charter.  We  need 
not  therefore  trouble  ourselves  with  section 
756,  although  there  is  not  in  the  main  much 
di  (Terence  between  them  so  far  as  can  apply 
to  this  case  excepting  as  to  the  time  of  serv- 
ice. 

Section  777A  (being  Acts  1906,  c.  456)  In- 
cludes superintendent  of  matrons  and  ma- 
trons of  station  houses  within  the  provisions 
of  section  777,  so  that  they  may  enjoy  the 
same  rights  and  privileges  and  benefits,  sub- 
ject to  the  same  limitations  and  conditions, 
as  those  conferred  for  the  retiring  of  mem- 
bers of  the  police  force,  provided  they  pay 
to  the  special  fund  $10  per  annum  for  three 
years,  in  addition  to  the  regular  percentage 
required  "under  the  special  pension  act" 
Section  777B  Included  the  secretary  and  as- 
sistant secretary  of  the  board  within  the 
provisions  of  section  777,  provided  the  secre- 
tary paid  $300  and  the  assistant  secretary 
$150  in  three  equal  Installments  to  the  "spe- 
cial fund."  Section  777Ba  (Acts  1900,  c  263) 
directed  the  mayor,  etc.,  of  Baltimore,  upon 
the  request  of  the  board,  to  appropriate  an- 
nually a  sum  of  money  foe  the  relief  of  dis- 


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101  AXLAin?IO  BEPORTBB 


(Md. 


abled  and  superannuated  members  of  tbe 
police  force,  and  for  the  relief  of  widows 
and  children  of  policemen  killed  In  the  dis- 
charge of  duty,  when  the  special  fund  was  not 
sufficient  for  the  payments  authorized  by  the 
act  of  the  General  Assembly  heretofore  pass- 
ed. Proyislons  under  the  subtitle  "Special 
Fund"  are  made  in  sections  776  to  780,  In- 
cluslve,  but  we  will  not  refer  to  the  others. 
Having  thus  referred  to  what  tbe  appellant 
calls  general  laws  on  the  subject,  without 
deeming  It  necessary  to  enter  upon  a  discus- 
sion as  to  whether  they  are  general  or  spe- 
cial, and  for  the  purposes  of  these  cases  as- 
suming th«n  to  be  general,  we  will  now  con- 
sider the  several  statutes  passed  for  the 
benefit  of  the  appellees. 

1.  Mrs.  B.  B.  McClenehan. 

[1]  The  first  case  In  the  record  Is  that  of 
Mrs.  McClenehan.  She  was  appointed  ma- 
tron on  January  28,  1900,  and  continued  in 
that  capacity  until  the  9th  day  of  July, 
1912,  when  she  was  dismissed  by  the  board, 
aftef  an  examination  of  physicians,  who 
said  she  had  Bright's  disease  and  rheuma- 
tism, without  any  provision  for  future  pay. 
She  paid  $30,  being  for  the  three  years  as 
required  by  section  777A,  and  the  2  per 
cent  of  her  salary  from  the  year  1906  .(when 
matrons  were  Included)  until  she  was  dis- 
missed. Chapter  600  of  Acts  of  1914,  after 
stating  in  the  preamble  that  she  had  con- 
tributed to  the  pension  fund  and  was  ob- 
liged to  retire  on  account  of  serious  illness, 
whereby  she  had  been  incapacitated  from 
work  and  from  earning  a  livelihood,  direct- 
ed the  board  to  pay  her  $7.50  a  week  dur- 
ing her  life  out  of  the  special  fund.  She 
had  not  been  in  service  for  16  years,  as  re- 
quired by  section  777.  It  is  contended  by 
the  appellant  that  section  756A  governs  her 
case,  and  leaves  it  discretionary  with  the 
board,  but  It  would  seem  clear  that  that 
section  does  not  apply.  That  was  passed  in 
1912,  six  years  after  matrons  were  given 
the  privileges  of  section  777,  but  expressly 
limits  the  relief  to  "any  officer  of  police, 
policeman,  detective,  clerk  or  turnkey,"  aind 
does  not  Include  matrons.  There  was  then 
no  general  law  in  existence  when  the  act 
of  1914  was  passed  which  Included  Mrs.  Mc- 
Clenehan. 

The  question  then  is  whether  such  an 
act  was  in  conflict  with  article  3,  8  33,  of 
the  Constitution.    It  provides  that: 

"Tbe  General  Assembljr  shall  pass  no  special 
law  for  any  case  for  which  provision  has  been 
made  by  an  existing  general  law." 

It  seems  to  us  clear  that  the  board  had 
no  power  under  the  "general  laws"  in  the 
charter  to  pension  Mrs.  McClenehan.  As 
then  they  were  not  authorized  to  allow  her 
a  pension  under  those  laws,  It  cannot  be 
said  that  the  constitutional  provision  above 
quoted  prohibits  the  passage  of  such  a  stat- 
ute as  tbe  one  passed  tor  her  benefit.    It 


may  be  that  the  Legislature  was  not  willing 
to  pass  a  general  law  allowing  the  board 
to  pension  matrons  who  left  the  service  by 
reason  of  Ul  health,  but  were  not  permanent- 
ly disabled  in  the  discharge  of  their  dut7, 
and  had  not  served  the  time  required  by 
section  777 — ^16  years.  Indeed,  section  756A 
Indicates  that  it  deemed  it  proiter  to  permit 
tbe  board  to  retire  an  "officer  of  police,  po- 
liceman, detective^  clerk  or  turnkey"  ap- 
pointed by  them  who  was  ineligible  in  the 
way  of  length  of  service  to  retirement  on 
pay  for  life  under  the  requirements  of  sec- 
tion 756,  and  had  served  faithfully  and  had 
become  permanently  Incapacitated  from  ac- 
tive duty,  but  it  was  not  willing  to  Include 
matrons,  and  hence  did  not  provide  for 
their  retirement  by  reason  of  sickness.  It 
did  not  give  them  the  benefit  of  the  special 
fund  at  aU  nntU  1906. 

There  are  many  decisions  of  this  court 
which  Indicate  that  such  a  special  provi- 
sion for  a  particular  person  named  as  is 
made  by  this  act  does  not  come  witliln  the 
prohibition.  If  there  had  been  no  such 
statute  as  section  756  or  777,  we  can  see 
no  reason  why  this  act  could  not  have  been 
passed,  and  if  we  are  correct  in  the  conclu- 
sion that  neither  of  those  statutes  embrac- 
ed her  case.  Is  It  not  Just  as  if  there  was  no 
such  statute?  In  Pumphrey  v.  Baltimore. 
47  Md.  145,  28  Am.  Rep.  446,  Acts  1676,  c. 
220,  required  the  mayor  and  dty  council  oC 
Baltimore  to  take  charge  of  and  maintain  as 
a  public  highway  a  bridge  known  as  "Har- 
man's  Bridge."  On  their  refusal  to  do  so 
Pumphrey  filed  a  petition  for  a  mandamus 
to  compel  them  to  do  so.  Amongst  other  de- 
fenses this  provision  of  the  Constitutioa 
was  relied  on.  Tills  court  said,  through 
Chief  Judge  Bartol: 

"In  the  public  local  laws  relating  to  Balti- 
more city  no  provisicm  is  made  for  the  acquisi- 
tion of  the  bridge  in  question,  and  the  ascer- 
tainment of  the  amount  to  be  paid  to  the  own- 
ers in  the  manner  contemplated  and  directed 
by"  former  acts  referred  to. 

It  was  held  that  the  act  was  constitu- 
tional and  valid.  In  O'Brlan  &  Ca  v.  Coun- 
ty Com'rs  of  Baltimore  County,  51  Md.  15. 
the  Legislature  passed  a  special  act  In  ref- 
erence to  the  opening  of  Wllkens  avenue. 
The  defense  was  taken  that  the  General 
Laws  provided  a  mode  for  the  opening  of 
any  new  road,  or  tbe  widening,  straighten- 
ing, altering,  or  closing  up  an  old  road.  Tba 
court  said: 

"As  recited  in  the  preamble,  there  were  spe- 
cial circumstances  in  the  case  of  Wilkens  ave- 
nue requiring  special  legislation  in  regard  there- 
to;' and  as  the  purposes  of  the  act  could  not 
he  accomplished  under  any  existing  general  law, 
its  enactment  was,  of  course,  not  within  tbe 
prohibition  contained  in  the  Constitution  (arti- 
cle 3,  i  33)." 

In  Hodges  ▼.  Bait  Pass.  Ry.  Ca,  58  Md. 
603,  It  was  held  that  as  there  was  no  gen- 
eral law  conferring  the  rights  and  prescrib- 
ing the  terms  and  conditions  on  which  the 


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BOARD  OP  POLICE  COM'KS  v.  MoOLENBHAK 


789 


defendant  was  to  constnict  and  operate  Its 
raflway  on  certain  streets  in  the  dty  ot 
Baltimore,  the  act  then  In  question  was  not 
in  conflict  with  this  section  of  the  Constitu- 
tion. In  Gana  v.  Carter,  77  Md.  1,  25  AU. 
663,  it  was  cMitended  ttiat  the  powers  giv- 
en to  the  Fidelity  &  Deposit  Company  to  be- 
come sole  surety  in  all  -cases  where  two  or 
more  sureties  were  required,  etc^  was  a 
special  law,  within  the  meaning  ot  this 
section,  but  this  court  held  that,  as  there 
was  no  general  law  providing  for  corporate 
security  in  such  cases,  the  act  was  valid. 
See,  also,  Revell  v.  Annapolis,  81  Md.  1,  31 
Aa  695,  Baltimore  v.  United  Ry.  &  E.  Co., 
126  Md.  39,  94  Atl.  378,  and  other  cases 
where  this  provision  of  the  Constitution  has 
been  passed  on.  The  cases  relied  on  by  the 
appellant  are  clearly  distinguishable  from 
this.  In  Prince  George's  County  v.  B.  &  O. 
R.  K.  Co.,  113  Md.  179,  77  AU.  433,  there 
was  a  general  law  clearly  covering  the  cross- 
ings involved.  So  in  the  case  of  Baltimore 
V.  Starr  Church,  106  Md.  281,  67  Aa  261, 
the  exemption  was  invalid  because  the  stat- 
ute was  within  this  provision  of  the  Con- 
stitution, and  for  other  reasons. 

It  is  true  that  there  are  a  number  of  sec- 
tions in  the  charter  which  relate  to  pen- 
sions for  policemen  and  others,  but  they  are 
only  allowed  on  certain  conditions.  If  a 
worthy  person  does  not  come  within  those 
provisions,  it  cannot  be  properly  said  that 
an  act  cannot  be  passed  to  provide  for  his 
or  her  case,  any  more  than  it  can  be  suc- 
cessfully contended  that  the  great  amount 
of  legislation  which  has  been  passed  con- 
ferring special  powers  on  corporations  which 
are  not  granted  by  the  general  laws  are 
invattd.  That  has  been  done  over  and  over 
again,  without  a  suggestion  that  they  were 
not  valid.  The  General  Corporation  Laws  of 
1868  provided  that: 

"No  corporation  shall  possess  or  exercise  any 
corporate  powers,  except  such  as  are  conferred 
by  law,  and  such  as  snail  be  necessary  to  the 
exercise  of  the  powers  so  acquired."  Article  23, 
i  56,  of  Code  of  1888;  article  23,  f  64,  ot  Code 
of  1004. . 

And  it  was  oftentimes  exceedingly  doubt- 
ful whether  a  corporation  had  under  the 
general  laws  some  special  power  It  desired 
to  exercise,  and  hence  numerous  acts  were 
passed  to  confer  such  powers.  Sections  756 
and  777  empower,  but  do  not  require,  the 
board  to  retire  those  provided  for  in  them. 
It  would  be  carrying  the  meaning  of  sec- 
ti(m  33  of  article  8  of  the  Constitution  very 
far  to  say  that  by  reason  of  such  sections 
the  Legislature  could  not  pass  an  act  re- 
quiring the  board  to  retire  on  pay  a  certain 
person  or  persons  which  the  Legislature 
thought  should  be  retired.  The  Legislature 
never  Intended  to  abandmi  all  control  over 
the  board  in  such  matters,  as  is  shown  by 
the  many  statutes  on  the  subject  Of  course, 
when  there  is  a  general  statute  covering  the 
particular  case,  another  question  may  arise. 


but  we  are  satlsfled  that  there  is  no  dUBcul- 
ty  In  this  case. 

2.  William  P.  Gerwig. 

The  next  case  Is  that  ot  William  F.  Ger- 
wig. He  was  appointed  on  the  police  force 
October  21,  1899,  and  appointed  a  regular 
patrolman  December  7,  1900.  In  January, 
1904,  whilst  in  the  discharge  of  his  duty,  he 
sustained  a  fall,  striking  his  spine  on  his 
revolver  In  his  hip  pocket  On  September 
6,  1904,  he  was  dropped  from  the  police 
force  because  of  his  Injury  and  disability. 
It  appeared  to  the  board  then  in  office  that 
the  incapacity  was  produced  by  spinal  trou- 
ble of  long  standing,  and  not  from  an  in- 
Jury  occurring  in  the  performance  of  his 
duty.    By  Acts  1906,  a  63,  it  was  provided: 

"That  if  the  police  commissioners  of  Balti- 
more city,  after  a  careful  examination,  are  sat- 
isfied It  is  proper,  they  are  hereby  authorized 
and  empowered  to  pay  Mr.  William  Frederidc 
GerwiE,  a  former  policeman  of  the  police  force 
of  Baltimore  city,  out  of  the  funds  in  their  pos- 
session or  subject  to  their  control,  a  weekly 
pension  of  nine  dollars  ($9.00),  payable  on  the 
last  day  of  each  week." 

It  is  agreed  that  from  and  after  the  pas- 
sage of  that  act  the  board  regulaf'ly  and 
continuously  paid  to  him  the  sum  of  $9  a 
week  imtil  he  received  the  letter  of  the  sec- 
retary of  the  board  dated  September  8,  1916, 
notifying  him  that  the  board  considered  the 
act  unccmstitutlonal,  and  therefore  would 
make  no  further  payments  to  him.  It  Is 
clear  that  there  was  no  general  law  which 
covered  his  case. 

[2]  It  is  contended,  however,  that  the  act 
itself  was  not  mandatory,  but  was  in  the 
discretion  of  the  board.  While  that  is  cor- 
rect, the  board  did  exercise  its  discretion, 
presumably  after  careful  examination  as  the 
act  provides.  There  is  nothing  in  the  act 
to  indicate  that  the  intention  of  the  Legisla- 
ture was  to  leave  It  to  the  discretion  of 
each  board  from  time  to  time,  but,  having 
been  acted  on  by  the  board  then  in  office, 
It  was  not  longer  in  the  power  of  subse- 
quent boards  to  revoke  it,  merely  as  an  ex- 
ercise of  their  discretion.  If  that  were  so 
in  reference  to  what  we  speak  of  as  the 
"special  acts,"  it  would  likewise  be  so  under 
section  777  and  section  756,  if  that  is  still 
of  any  force.  They  leave  it  to  the  determi- 
nation of  the  board  in  the  first  place,  "when- 
ever, in  their  opinion  the  efficiency  of  the 
service  may  require  it  to  retire  any  officer 
of  police,  policeman,"  ete.,  and  they  state 
the  grounds  upon  wUch  they  may  suspend 
payment  or  dismiss  the  party.  It  seems 
clear  to  us  that  it  was  left  to  the  existing 
board,  and  was  not  intended  to  leave  It  to 
the  discretion  of  each  succeeding  board  as 
to  whether  the  pay  should  be  continued. 
Moreover,  the  action  of  the  bo&rd,  as  shown 
by  the  letter  ot  the  secretary,  was  upon 
the  ground  that  the  act  was  unconstitution- 
al, and'  it  was  not  pretended  that  It  was 


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101  ATIiANTIG  REPORTER 


(Md. 


done   nnder  a  dalm  of  discretion  In   the 
board. 

8.  Manno  A.  Behrens. 

Behrens  was  appointed  a  patrolman  up- 
on the  police  force  In  1S79.  It  Is  admitted 
that  he  would  have  testified  "that  upon  the 
21st  day  of  August,  1899,  the  petitioner  was 
virtually  dismissed  for  partisan  political 
reasons  •  •  •  without  any  provision  for 
a  pension  or  any  other  allowance."  By 
chapter  560  of  the  Acts  of  1900  the  board 
was  authorized  and  directed  to  pay  ijenslons 
to  the  three  persons  named  (including  Behi^ 
ens)  "who  were  permanently  disabled  in  the 
discbarge  of  their  duty  as  such  policemen" 
out  of  the  funds  in  their  hands  known  and 
accounted  for  as  the  "special  fund"  the  sum 
of  $9  during  the  term  of  their  respective 
lives.  Then  by  Acts  1916,  cb.  212,  the  board 
was  directed  to  pay  Behrens  for  the  rest 
of  bis  life  out  of  the  "special  fund"  a  week- 
ly pension  equal  to  one-half  of  the  weekly 
pay  of  a  regular  patrolman,  in  lieu  of  any 
pension  now  being  paid  him  under  any  law 
theretofore  enacted.  The  board  having  dis- 
missed the  petitioner,  he  was  not  a  member 
of  the  force,  and  hence  the  board  could  not 
place  him  on  the  pension  list  He  bad  serv- 
ed 20  years,  faithfully  as  he  claims,  and 
was  dismissed  for  "partisan  political  rea- 
sons," as  shown  by  the  agreed  statement 
There  was  no  general  law  In  force  author- 
izing his  reinstatement,  and  the  Acts  of 
1900  and  1916  cannot  therefore  be  said  to 
be  contrary  to  article  3,  {  33,  of  the  Constitu- 
tion. 

4.  George  A.  Grimes. 

Grimes  was  a  police  officer  from  April  14, 
1884,  until  November  11,  1906,  when  he  was 
dismissed  for  being  off  his  post  and  in  an 
eating  saloon  for  ten  minutes.  He  had  regu- 
larly paid  the  2  per  cent  of  the  salary  re- 
ceived by  him.  By  Acts  1908,  ch.  192,  the 
board  was  directed  to  pay  him  a  weekly 
pension  of  $9.  That  was  paid  until  Sep- 
tember, 1916,  when  he  received  the  notice 
from  the  secretary  that  it  would  not  Ion* 
ger  be  paid.  There  was  no  general  law  cov- 
ering his  case. 

5.  Edward  F.  Meehan. 

He  was  appointed  a  patrolman  in  1881, 
sergeant  in  1886,  and  in  January,  1896,  a 
round  sergeant  On  July  12,  1897,  be  was 
dismissed  by  the  l)oard  without  any  provi- 
sion for  pension.  It  was  contended  by  tdm 
that  he  was  Innocent  of  the  charges  and  was 
dismissed  tor  partisan  political  i-easons.  By 
Acts  1908,  ch.  92,  the  board  was  directed 
to  pay  him  fl2  per  week  for  life.  It  paid 
him  regularly  until  September,  1916,  when 
he  was  notified  by  the  secretary  that  it 
would  no  longer  be  paid.  We  are  informed 
by  the  appellees'  brief  that  he  has  died  since 
ibe  decision  below,  ai)d  of  course  ills  rep- ' 


resentative  will  only  be  entitled  to  the 
amount  due  from  the  time  fhe  payments 
ceased  until  his  death.  No  proceedings  were 
taken  to  make  his  persmal  representative  a 
party  to  this  case,  but  we  assume  that  will 
not  be  required  by  the  appellant 

6.  Loiois  V.   Faff. 

He  went  on  the  police  force  June  1,  1888, 
and  was  employed  as  a  driver  of  a  patrol 
wagon.  In  July,  1890,  he  was  run  over  by 
the  patrol  wagon  and  seriously  injured.  He 
suffered,  but  continued  to  woric  from  time 
to  time  until  finally  he  became  in  such  con- 
dition that  he  resigned.  The  tmard  accept- 
ed his  resignation  on  May  10,  1898,  without 
providing  for  any  compensation.  By  Acts 
1902,  ch.  280,  the  board  was  authorized  in 
their  discretion  to  pay  him  $9  per  week,  and 
by  Acts  1914,  ch.  493,  they  were  directed  to 
pay  him  $10  per  week.  It  is  alleged  that 
the  first  act  was  discretionary.  That  is 
true,  but  the  board  regularly  paid  him,  un- 
til September,  1916,  and  what  we  have  said 
above  is  sufficient  as  to  that  Indeed,  be- 
fore he  applied  for  the  first  act  he  notified 
the  board  of  his  intention  to  do  so,  and  the 
secretary  replied  that  the  board  bad  made 
inquiry  as  to  his  injuries  and  believed  his 
was  a  worthy  case  and  would  do  nothing  to 
oppose  legislation  to  put  him  on  the  retired 
list  with  pay.  Apparently  they  only  wanted 
the  power  widcb  they  thought  they  ddd  not 
have. 

7.  Louis  F.  Norris. 

He  was  appidnted  a  patrolman  August  25, 
187S,  and  he  continued  in  service  until  Fel>- 
ruary  2,  1887,  when  he  was  dismissed  for 
being  found  asleep  in  a  chair  at  3:10  a.  m. 
in  a  hotel  upon  his  beat  On  January  10. 
1SS6,  he  fell  on  the  ice  while  patroling  hia 
beat  and  dislocated  his  left  arm  at  the  ti- 
bow,  since  which  time  he  was  crippled.  He 
was  included  in  chapter  S60  of  the  Act  of 
1900,  referred  to  in  the  case  of  Manno  A. 
Behrens.  After  that  act  he  was  regnlariy 
paid  $9  a  week  until  September,  1916.  Hav- 
ing been  dismissed,  there  was  no  provisloD 
in  the  General  Laws  for  reinstating  Mm,  ao 
as  to  get  the  benefit  of  the  pension,  and  he 
had  not  served  the  regular  time. 

8.  Kate  Spitznagle. 

She  is  the  widow  of  Charles  Spitznagle, 
who  was  appointed  on  the  police  fbrce  on 
January  1,  1893.  He  died  suddenly  Decem- 
ber 25,  1906,  after  a  loag  chase  of  a  viola- 
tor of  the  law,  made  in  the  performance  of 
his  duties,  either  from  a  strcAe  of  paral- 
ysis or  heart  failure,  as  a  result  of  the 
chase  and  arrest  of  the  party.  The  recm^ 
of  the  police  board  show  that  he  died  ot 
paralysis.  The  petitioner  did  not  make  a 
formal  request  for  an  allowance,  but  Acts 
1906,  c.  335,  authorized  the  board,  in  th^r 
discretion,  to  pay  her  $9  per  week  during 


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SUSQUEHANNA  TRANSMISSION  CO.  OP  MARTI/AND  T.  MURPHT  791 


ber  life  That  was  paid  her  regnlarly  nntn 
September,  1918.  The  only  general  law 
which  could  be  claimed  to  cover  her  case 
Is  section  776D.  That  gives  the  board  power 
In  Its  discretion  to  pay  to  the  widow  of  a 
member  of  the  police  force  who  was  killed 
while  In  the  actual  performance  of  duty,  or 
who  died  In  consequence  of  Injuries  receiv- 
ed while  In  the  discbarge  of  duty,  an  al- 
lowance until  she  remarried.  It  Is  not  nec- 
essary to  determine  whether  It  could  be 
said  that  Mr.  Spltznagle's  death  came  with- 
in the  Intention  and  meaning  of  either  of 
those  grounds.  It  might  well  be  questioned 
whether  It  did,  but  the  board  paid  the 
amount  named  In  the  act  regularly  from 
the  time  of  Its  passage,  and  does  not  ob- 
ject to  the  amount  now,  so  far  as  the  re<^ 
ord  discloses,  but  relies  on  the  constitution- 
al objection  referred  to  in  the  other  cases. 
Nor  Is  It  necessary  to  consider  whether  the 
fact  that  the  special  act  pro^-ides  for  paying 
during  her  life,  and  section  776B  only  until 
she  remarries.  She  Is  still  unmarried,  so  far 
as  the  record  shows.  The  t)oard  in  a  worthy 
case  should  not  be  supposed  to  rely  on 
purely  technical  reasons  for  granting  or  re- 
fusing such  allowances.  The  object  of  the 
provision  Is  to  make  the  service  more  effi- 
cient, and  if  It  be  admitted  that  the  board 
had  the  discretion  to  allow  a  pension  under 
section  7760,  and  as  the  record,  shows  the 
board  did  on  April  23,  1906,  grant  her  an 
allowance  of  $9  a  week,  it  may  well  be  said 
that  it  did  so,  acting  within  its  discretion, 
and,  of  course.  If  that  section  does  not  ap- 
ply, there  can  be  no  valid  objectiou  to  the 
act  of  1906,  from  what  we  have  already 
said. 

9.  Peter  J.  Patterson. 

He  served  from  September  12,  1S96,  to 
the  19th  of  February,  1913,  when  he  was 
dismissed  on  the  charge  of  having  entered 
a  saloon  on  other  than  police  business,  and 
remaining  there  12  minutes,  and  while  there 
drinking  Intoxicating  liquor.  He  denies 
that  he  drank  intoxicating  liquor,  but  he  was 
dismissed  vrlthout  ^n.  allowance  or  pension. 
He  paid  tb«(  2  per  cent,  regularly  while  he 
was  in  service.  By  Acts  1014,  cli.  4S6.  the 
board  was  directed  to  pay  him  a  weekly 
pension  of  $11  per  week,  which  was  regu- 
iarly  paid  untU  September,  1916.  There  was 
no  general  law  covering  his  case,  and  what 
-we  have  said  in  the  other  cases  la  sufficient 
to  Indicate  our  views. 

'   10.  Joseph  J.  Gilbert 

He  was  appointed  as  a  patrolman  Janu- 
ary 27, 1881,  as  sergeant  August  5, 1884,  round 
sergeant  April  19.  1894,  lieutenant  January 
13,  1896,  and  on  January  14,  1896,  was  ap- 
(lointed  captain.  He  was  dismissed  as  he 
claims,  for  partisan"  political  reasons,  on 
.Tuly   12,    1897,    without '  any    provision    for 


pension.  By  Acts  1904,  c.  632,  the  board 
was  authorized  to  allow  him  a  weekly  pen- 
sion of  $15.  That  was  paid  regularly  until 
September,  1916.  We  find  no  provision  for 
allowing  pensions  when  the  board  dismiss- 
es, and  hence  there  was  no  general  law  ap- 
plicable. 

We  have  thus  gone  at  some  length  into 
these  ten  cases,  and,  as  we  have  above  point- 
ed out,  we  do  not  Bnd  any  "general  law" 
which  can  properly  be  said  to  Interfere  with 
the  "special  acts"  referred  to.  We  have 
already  explained  that  we  did  not  deem  it 
necessary  to  discuss  the  point  raised  by  the 
appellees  that  these  acts  codlfled  in  the 
Local  Code  on  this  subject  are  not  "general 
laws"  within  the  meaning  of  article  3,  g  33, 
because,  if  they  are  admitted  to  be  so,  we 
find  none  of  what  we  have  spoken  of  as 
"special  acts"  coming  within  the  prohibition 
of  that  section  of  the  CMistitntion. 

We  are  not  called  upon  to  speak  of  the 
wisdom  of  the  Legislature  in  passing  such 
acts,  although  some  of  them  would  seem  to 
be  peculiarly  meritorious  and  Just.  The  par- 
ties had  paid  regularly  into  the  special  fund, 
which  was  intended  for  pulsions  and  some 
other  purposes.  From  the.  view  we  take 
of  the  article  of  the  Ck>nstitutlon  relied  on 
by  the  appellant,  it  becomes  unuecessar}-  to 
discuss  any  of  the  other  questions  raised. 
We  will  affirm  all  of  the  orders  passed,  in- 
dndii^  the  Meehan  Case,  as  we  have  no 
record  of  his  death  of  which  we  can  take 
notice,  and  we  assume  that  that  will  be  ad- 
Justed  without  making  his  representative 
a  party.  If  necessary,  of  course,  that  can  be 
done. 

Order  affirmed  In  eaxA  of  the  ten  cases; 
the  appellant  to  pay  the  cost&     . 

■  (la  Md.  MO) 

SUSQUEHANNA  TRANSMISSION  CO.  OP 

MARYLAND  v.  >IURPHY  et  al. 

(No.  71.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Apfkai.    awd   Ebsok    €=>836— Review    — 
Limitations. 

The  power  of  this  court  is  limited  to  an  ex- 
amination of  the  record  and  a  decision  upon  the 
question  whether  the  court  committed  any  in- 
jurious error  of  law  in  any  of  the  rulings  to 
which  defendant  reserved  exceptions. 

2.  Ni:ai,ioENCR      ®s3l21(5)  —  Oohcubbehob 
WITH  Injury. 

Where  negligence  is  the  basis  of  the  action, 
it  is  essential  that  plaintiff  show  that  the  neg- 
ligence alleged  and  the  iojuriea  suffered  eoncnr- 
red. 
•8.  Tbiai,  <8=>134— Questions  fob  Jubt. 

It  is  the  exclnsivp  province  of  the  Jury  to 
decide  questions  of  fact. 

4.  Ei.EcTBiciTY  «=»19(6)— Damaok  fbov  Fire 
—  PBOxntATE  Cause  —  Kvidbwcb  —  Svtfi- 

CIENCT.- 

In  an  action  against  defendant  electric  pow- 
er corporation  for  damages,  held,  tinder  evidence, 
that  questions  of  its  negligence  in  burning  on 
right  of  way  and  whether  fire  was  the  proximate 
cause  of  the  burning  of  plaintiff's  timber  and 
fencing  were  for  jury. 


«=9For  otber  casu  aee  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Olgesta  and  IndexA 

Digitized  by  VjOOQ IC 


792 


101  ATIAm'IO  REPORTER 


Qia. 


5.  Appeai.  AiTD  Ebbob  4=b971(2)— Evidence 
«=>546— Qualification-    or    Expebts— Rk- 

VIBW. 

The  amotmt  of  knowledge  a  witness  must 
possess  before  he  can  be  allowed  to  testify  as 
an  expert  is  largely  for  the  trial  court,  and  its 
rulings  will  not  be  disturbed  unless  dearly  er- 
roneous. 

6.  EVIDENCB  «=>643(3)— BZFEBTS— QUAUnOA- 
TIONS. 

Parties  who  had  been  engaged  in  the  timber 
business  for  about  three  years  and  were  fa- 
miliar with  the  prices  of  timber  were  competent 
to  testify  to  the  value  of  the  timber  before  and 
after  the  fire. 

7.  Appeal  asd  Bbbob  «s»1026— HABMLsas 
Erhob. 

Errors  which  are  without  injury  will  not 
justify  a  reversal  on  appeaL 

Appeal  from  Circuit  Court,  Baltimore  Coun- 
ty;   Hon.  Frank  I.  Duncan,  Judge. 

"To  be  officially  reported." 

AcUon  by  Thomas  F.  Murphy  and  another 
against  the  Susquehanna  Transmission  Com- 
pany of  Maryland.  Judgment  for  plalntifts, 
and  defendant  appeals.    Affirmed,  with  costs. 

Argued  <before  BOYD,  C.  J.,  and  BURKE, 
THOMAS,  PATTISON,  DRNER,  and  STOCK- 
BRIDGE,  JJ. 

T.  Scott  Offutt,  of  Towson,  for  appellant. 
Elmer  J.  Cook,  of  Towson,  and  Thomas  H. 
Robinson,  of  Bel  Air,  for  appellees. 

BURKE,  J.  This  Is  an  appeal  by  the  de- 
fendant below  from  a  Judgment  of  $500  en- 
tered against  It  In  the  circuit  court  for  Balti- 
more county.  The  defendant  Is  a  corpora- 
tion, and  owns  a  right  of  way  about  100  feet 
wide  through  Harford  and  Baltimore  coun- 
ties to  the  city  of  Baltimore.  Upon  this  right 
of  way  are  erected  towers  to  which  wires 
and  other  mechanical  devices  are  attached, 
and  used,  for  the  transmission  of  electric 
iwwer  generated  by  a  power  plant  located  at 
McCall's  Ferry  in  the  state  of  Pennsylvania. 
The  plaintiffs  are  the  owners  of  land  situated 
In  Harford  county  at  a  distance  of  about 
2,000  feet  from  the  defendant's  right  of  way. 
Up<A  this  land  was  a  tract  of  timber  In- 
closed by  a  fence.  Between  their  property 
and  the  defendant's  right  of  way,  at  the 
location  spoken  of  in  the  testimony,  there 
is  located  the  land  of  Mrs.  Streett  and  Albert 
Berry,  which  land  adjoins  the  plaintiffs' 
property.  Then  intervenes  some  land,  which 
at  the  time  of  the  injury  complained  of  was 
occupied  by  a  man  named  Ayres.  A  part  of 
this  land,  adjoining  that  of  Streett  and  Ber- 
ry, was  planted  in  corn,  and  the  balance,  cov- 
ered with  grass  and  weeds,  was  contiguous 
to  what  Is  spoken  of  by  the  witnesses  as 
Campbell's  and  Slade's  woods.  These  woods 
lay  along  and  near  the  defendant's  right  of 
way.  In  Slade's  woods  there  was  a  pile  of 
rails  between  300  and  400  in  number  and 
some  posts  which  belonged  to  a  man  named 
Harmon.  The  evidence  shows  that  Slade's 
woods  was  rery  much  elevated  above  the 
plaintiffs'  land. 


The  declaration  alleged: 

"That  on  or  about  the  2d  day  of  May,  in  the 
year  1914,  the  servants,  agents,  and  employes 
of  the  defendant  negligently  set  fire  to  dried 
grass  and  weeds  and  bush^  Uiat  were  negli- 
gently suffered  by  the  defendant- to  be  and  re- 
main on  its  said  right  of  way,  for  the  purpose 
of  burning  the  same,  at  a  time  when  a  high 
wind  was  blowing,  and  that  the  fire  so  negli- 
gently started  on  said  right  of  way  was  thence 
communicated  to  the  plaintiffs'  timber  and  fenc- 
ing, whereby  and  in  consequence  thereof  a  large 
part  of  said  timber  was  burnt  and  injured." 

The  defendant  pleaded  the  general  issue 
pleas,  and  the  case  was  tried  before  the 
court  and  a  Jury  upon  the  Issues  Joined  upon 
these  pleas. 

[1]  During  the  progress  of  the  trial  the 
defendant  reserved  23  exceptions.  Nineteen 
of  these  were  taken  to  the  ruliogs  of  the 
court  upon  questions  of  evidence,  one  to  the 
rulings  on  the  prayers,  and  three  to  certain 
statements  made  by  the  counsel  for  the  plain- 
tiffs in  their  arguments  before  the  Jury.  A. 
motion  for  a  new  trial  was  made  by  the  de- 
fendant, which  the  court  denied,  and  whilst 
the  counsel  for  the  defendant  complains  that 
the  verdict  was  grossly  excessive,  he  concedes 
that  this  court  has  no  power  to  grant  him 
relief  on  that  ground.  Our  power  is  limited 
to  an  examination  of  the  record  and  a  de- 
dsloa  upon  the  question  as  to  whether  the 
court  below  committed  any  Injurious  error 
of  law  in  any  of  its  rulings.  Before  consid- 
ering the  exertions.  It  may  be  well  to  state 
some  matters  about  whidi  there  does  not  at^ 
pear  to  be  any  dispute.  It  is  shown  that  the 
plaintiffs  were  the  owners  of  the  property 
mentioned  in  the  declaration,  and  that  on  May 
2,  1914,  a  Are  broke  out  in  the  plaintiffs' 
woods,  burned  over  about  5  acres  of  their 
land,  injured  the  timber  thereon,  and  de- 
stroyed a  large  portion  of  the  fencing  which 
inclosed  the  tract  It  Is  also  shown  that 
about  noon  on  that  day  James  Q.  Parker,  the 
line  superintendent  of  the  defendant,  directed 
Csesar  Hawkins  and  Walter  Winder,  two 
men  In  the  employ  of  the  defendant  and 
over  whom  Parker  had  authority,  to  gather 
Into  plies  and  bum  certain  debris  whidi  was 
laying  upon  the  right  of  way  of  the  defend- 
ant and  near  to  Oampb^'s  and  Slade's 
woods.  These  men  gathered  up  the  dttrls 
into  piles,  about  3  feet  high  and  5  feet  wide 
and  about  6  feet  apart,  along  the  ri^t  of 
way  and  set  them  on  fire.  The  Are  from 
these  burning  piles  was  communicated  first 
to  Campbell's  and  then  to  Slade's  woods,  and 
It  destroyed  the  rails  of  Harmon,  to  which 
we  have  referred,  and  for  which  loss  the  de- 
fendant compensated  him. 

The  disputed  questions  of  foct  were: 
First,  as  to  the  character  of  the  timber  on 
the  plaintiffs'  land,  the  extent  of  the  injury 
to  the  timber,  and  Its  value  before  and  after 
the  fire ;  and,  secondly,  the  extent  of  the  fire 
In  Slade's  woods,  the  direction  and  Tdodty 
of  the  wind  at  the  time  of  the  fire;  and, 
thirdly,  a  question  of  law,  raised  by  the  de> 


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SUSQUEHANNA  TRANSMISSION  00.  OF  MABTLAND  T.  MURPHT 


793 


fondant's  first,  second,  and  third  prayers, 
■which  sought  to  withdraw  the  case  from  the 
Jnry,  as  to  whether  there  was  any  testimony 
■offered  legally  sufficient  to  show  any  negli- 
gence on  the  part  of  the  defendant,  or  any 
legal  connection  between  the  fire  started  on 
the  defendant's  right  of  way  and  the  injury 
suffered  by  the  plaintiffs. 

[2]  As  negligence  is  the  basis  of  the  action. 
It  was  essential  for  the  plaintiffs  to  offer  ey- 
Idence  legally  sufficient  to  show  the  negli- 
gence alleged,  and  that  the  injuries  sued  for 
bore  the  relation  of  cause  and  effect  The 
concurrence  of  both  and  the  nexus  between 
them  must  be  shown  to  exist  to  constitute 
a  right  to  recover.  Benedict  v.  Potts,  88  Md. 
66,  40  AU.  1067,  41  L.  R.  A.  47& 

[3]  It  is  not  the  provlnoe  of  this  cotirt  to 
decide  any  question  of  fact  That  was  the 
exclusive  province  of  the  Jury.  Eight  wit- 
nesses were  called  on  behalf  of  the  plain- 
tiffs, viz.:  W.  Elijah  SomervlUe,  a  surveyor, 
Thomas  F.  Murphy,  James  G.  Parker,  Cor- 
nelius F.  Murphy,  Albert  Berry,  Albert  Ber- 
ry, Jr.,  Edward  I*  Oldfield,  and  Benjamin 
Garber. 

A  brief  synopsis  of  the  material  portions 
of  the  evidence  of  these  witnesses  bearing  up- 
on the  questions  presented  by  this  appeal  is 
here  given: 

Mr.  Somervllle-made  a  plat  of  the  location 
of  the  transmission  line  with  reference  to  the 
property  of  the  plaintiffs,  and  made  measure- 
ments of  the  distance  from  the  transmission 
line  to  the  Murphy  property  and  of  the  tract 
burned.  He  said  the  fire  extended  over  a 
little  more  than  S%  acres  of  the  timber  land, 
and  that  the  distance  from  Blade's  woods  to 
the  Berry  and  Streett  land,  which  as  we 
bave  said,  adjoined  the  Murphy  land,  was 
1,968  feet  and  that  the  distance  from  the 
Slade  land  where  this  line  of  1,968  feet  was 
measured  to  the  defendant's  right  of  way 
was  probably  about  125  feet  He  testified 
that  the  land  slopes  towards  the  Streett 
property,  and  that  at  about  the  center  of  the 
Slade  land  the  elevation  is  from  50  to  75 
feet  above  the  Streett  tract. 

Thomas  F.  Murphy  testified:  That  he 
first  noticed  the  fire  about  2  o'clock  p.  m. 
That  it  was  "a  terrible  windy  day." 
"The  wind  sounded  like  a  train  of  cars.  It 
was  blowing  from  the  west"  That  the  fire 
burned  more  than  5  acres  of  his  woodland. 
That  he  saw  the  smoke  coming  from  the 
Slade  woods — coming  from  the  west,  direct 
to  his  property.  That  the  fence  on  the  Berry 
and  Streett  lines  was;  entirely  destroyed. 
That  the  timber  on  his  tract  was  prlndpally 
oak,  white  oak,  and  the  very  best  of  chest- 
nnt ;  thickly  wooded,  a  splendid  piece  of  tim- 
ber. That  the  fire  continued  in  his  woods 
nntll  6  o'clock,  and  killed  the  timber  and  the 
young  growth.  That  the  timber  was  large 
and  marketable.    He  testified: 

That  he  owned  about  400  acres  of  land  in  that 
neighborhood,  and  had  been  engaged  in  farming 
for  a  nnmber  of  years,  and  that  he  had  had  ex- 
perience in  buying  and  selling  timber  and  timber 


land  for  over  two  years.  "In  Harford  county 
we  bought  200  acres  in  the  northern  part  of  the 
county  near  wliat  is  known  as  Oarea,  and  we 
Imught  85  acres  near  the  Roclu  recently,  and 
we  have  been  buying  telegraph  poles  in  all  the 
northern  part  of  the  country.  He  had  been  in 
the  timber  business  a  little  over  three  years. 
Prior  to  that  he  had  bonght  several  pieces  of 
land  for  himself  with  timber  on  it  Tluit  he 
made  bis  own  estimate  of  the  lumber  on  a  tract 
They  bought  the  timber  for  marketing  it,  cut- 
ting it  into  different  things,  railroad  cross-ties, 
crossing  planks,  telegraph  poles,  bridge  timber, 
wagon  wood,  whatever  we  can  market  it  in  best 
They  furnish  the  county  with  considerable  bridge 
timber.  In  making  the  purchases  of  timber  they 
bought  just  the  timber;  the  wood  leave  we  call 
it    He  inspected  it  before  he  bought  it" 

He  further  said  he  knew  of  sales  of  wood- 
land in  that  vicinity.  That  be  knew  of  sales 
there.  That  he  bad  bought  the  timber  on  the 
Wright  property,  which  was  about  8  miles 
from  his  own.  That  be  was  familiar  with 
the  prices  'of  tlml>er,  and  that  he  had  been 
engaged  in  the  timber  business  for  the  last 
two  or  three  years.  That  the  day  of  the  fire 
was  a  windy  day  and  very  dry,  and  had  been 
dry  for  several  daya 

James  G.  Parker,  the  line  superintendent 
was  caUed  by  the  plaintiffs,  and  testified 
that  he  ordered  the  men,  Hawldns  and  Wind- 
er, to  bum  the  d6bris,  but  was  not  present 
when  the  fire  started  in  the  Campbell  and 
Slade  woods;  that  he  gave  the  order  about 
11  or  11:30  a.  m.,  and  that  at  that  time  he 
said  the  wind  was  blowing  from  the  north- 
east. 

Cornelius  F.  Murphy  testified  that  he  re- 
called the  fire  which  occurred  on  May  2, 
1914.  He  first  noticed  it  about  1:30  or  2 
o'clock;  that  it  was  a  clear  day,  but  very 
windy.  The  wind  was  blowing  at  a  high 
gale.  It  was  blowing  a  gale  from  Slade's 
woods  to  the  plaintiffs'  woods.  He  could  see 
the  smoke.  The  Slade  land  was  higher  than 
bis  own.  His  evldoice  as  to  the  kind  and 
character,  quantity,  and  marketability  of  the 
timber  on  the  tract  burned  was  corroborative 
of  Thomas  F.  Murphy.  He  said  he  had  been 
engaged  in  the  timber  business;  that  he 
bought  tracts,  cat  off  the  timber,  operated  a 
sawmill,  and  sold  the  lumber;  that  be  had 
bought  timber  rights  in  the  upper  section  of 
Harford  county,  and  that  the  effect  of  the 
fire  on  the  timber  in  question  was  to  destroy 
it;  that  it  killed  the  trees. 

Albert  Berry  said  be  was  at  his  home 
when  he  first  saw  the  fire  between  1  and 
2  o'clock;  that  it  was  a  very  windy  day; 
tliat  be  saw  an  "awful  smoke"  in  the  corner 
of  the  Slade  property;  that  the  wind  was 
blowing  directly  from  Slade's  woods,  and 
that  there  was  a  fire  in  that  woods ;  that  the 
fire  was  burning  on  the  street  property, 
which  was  much  lower  than  the  Slade  woods, 
and  spread  to  the  Murphy  tract;  that  it 
burned  fencing  on  his  and  the  Murphy  tract, 
and  spread  into  the  Murphy  land. 

Albert  Berry,  Jr.,  said  he  saw  the  fire  la 
Slade's  woods  between  12:30  and  1  O'clock- 
and  testified  that: 


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(Md. 


"That  is  the  woods  np  by  the  Susquehimna 
Tranamiasion  line.  He  saw  the  fire  burning 
there;  saw  the  blaze.  He  supposed  he  was 
about  a  couple  of  hundred  feet  from  his  father's 
house.  There  was  then  a  very  high  gale  of 
northwestern  wind  blowing.  It  was  a  clear  day. 
The  wind  was  blowing  from  the  west.  He  saw 
a  fire  when  it  went  in  Mr.  Streett'a  woods.  He 
did  not  suppose  it  was  any  more  than  a  half 
hour  after  he  saw  the  fire  in  Slade's  woods 
that  he  saw  fire  in  Streett'a  woods.  He  was 
eating  his  dinner.  When  he  saw  it  in  Mr. 
Slade^s  woods  he  went  in  to  eat  his  dinner. 
When  he  saw  it  in  Mr.  Streett'a  woods  his  father 
called  his  attention,  and  be  went  to  help  put 
it  out.  When  he  got  down  there  the  fire  was 
burning  in  Mrs.  Streett's  woods.  He  stayed 
there  until  it  was  completed  about  6  o'clock. 
The  fire  got  over  to  bis  father's  land  sometime 
later  after  they  tried  to  put  it  out  in  Mr.  Mur- 
phy's tract.  When  he  went  down  on  Mr. 
Streett's  property  the  wind  was  blowing  again 
westward.  The  Strectt  property  and  his  prop- 
erty and  the  Murphy  property  is  considerable 
sight  lower  than  Slade's." 

Mr.  Oldfield  saw  the  timber  bef6re  and  In 
February  after  the  Are.  The  general  effect 
of  his  evidence  was  that  before  the  fire  It 
was  a  fine  piece  of  timber,  and  tbat  it  bad 
been  seriously  injured  by  the  fire. 

Benjamin  Oarber  testified:  That  he  saw 
the  fire  between  1  and  2  o'clock.  That  there 
was  a  "terrible  smoke"  coming  down  the  hol- 
low, and  that  he  went  over  to  Murphy's  and 
found  the  whole  woods  on  fire.  That  the 
smoke  was  coming  down  over  Slade's  woods 
towards  Murphy's  woods.  It  was  a  dry  day 
and  the  wind  was  blowing  very  hard,  and  he 
never  saw  It  blow  much  harder  than  It  did 
that  day.  That  It  was  blowing  direct  from 
the  west,  and  It  was  blowing  smoke  over  Mr. 
Ayres'  field  down  over  the  Murphy  woods. 

Testimony  on  the  part  of  the  defendant 
was  offered  tending  to  show  that  the  plain- 
tiffs' Injury  was  much  leas  than  they  testi- 
fied to;  that  they  had  misstated  the  charac- 
ter and  value  of  the  timber;  that  the  Are 
could  not  have  been  caused  by  any  act  of  the 
defendant  because  the  wind  was  moderate 
and  was  not  blowing  In  the  direction  of  the 
Murphy  tract ;  and  because  there  was  no  evi- 
dence of  fire  or  burning  of  the  dried  grass  or 
weeds  In  that  part  of  the  Intervening  field, 
above  mentioned,  which  was  In  the  posses- 
sion of  Ayres,  who,  however,  when  called  as 
a  witness  for  the  defendant,  testified  that  the 
fire  had  burned  the  fencing  between  him  and 
Albert  Berry.  Berry's  land  was  located  be- 
yond this  Intervening  field  and  adjoined  the 
land  of  Murphy. 

We  now  pass  to  the  consideration  of  the 
legal  questions  presented  by  the  rulings  on 
prayers.  The  only  error  which  It  is  claim- 
ed the  court  made  in  this  respect  was  in  re- 
jecting the  defendant's  first,  second,  and 
third  prayers,  which  asserted  that  there  was 
no  legally  sufficient  evidence  offered  to  enti- 
tle the  plaintiffs  to  recover,  and  in  overrul- 
ing the  special  exception  filed  to  the  plain- 
tiffs' first  prayer,  whldi  declared  tbat  there 
was  no  legally  sufficient  evidence  in  the  case 
to  support  the  following  hypotbesia  of  tbe 
prayer,  to  wit: 


"That  the  fire  started  b^  the  defendant  on  its 
right  of  way  was  communicated  from  the  wood- 
land of  one  Slade,  referred  to  in  said  prayer,  to 
the  woodland  of  one  Streett,  referred  to  in  said 
prayer." 

[4]  By  these  prayers  and  under  tbe  special 
exception  tbe  court  was  asked  to  declare,  as 
a  matter  of  law,  first,  that  the  defendant 
was  not  guilty  of  negligence  In  starting  tbe 
fires  on  Its  right  of  way  under  the  circum- 
stances stated  in  the  evidence;  and,  second- 
ly, that  said  fires  were  not  the  proximate 
cause  of  the  injury  sued  for.  Both  of  these 
questions  are  ordinarily  questions  to  be  pass- 
ed on  by  the  Jury  under  the  facts  and  circum- 
stances of  tbe  particular  case,  and  assuming, 
as  we  must,  tbe  plaintiffs'  evidence  aa  to  the 
weather  conditions  and  especially  as  to  tbe 
velocity  of  the  wind  to  be  true,  there  can  be 
no  doubt  of  the  defendant's  negligence.  Du- 
ties and  responsibilities  arise  out  of  existing 
facts  and  conditions,  and  no  reasonably  pru- 
dent and  cautious  man  would  have  fired  tbe 
piles  of  debris  under  the  conditions  described 
by  the  evidence  offered  on  behalf  of  the 
plaintiffs.  Tbe  true  rule  of  liability  Is  stated 
in  Miller  v.  Neale,  18T  Wis.  426,  119  N.  W. 
94,  129  Am.  St  Rep.  1077,  aa  foUows: 

"A  man  may  lawfully  bam  rubbish  or  brush 
upon  his  own  land,  if  he  exercises  that  prudence 
in  the  starting  of  the  fire  and  the  management 
of  it  after  it  is  started  which  the  rules  of  ordi- 
nary care  demand.  He  is  u^ng  a  dangeroua 
agent,  and  when  there  is  much  inflammable  ma- 
terial on  the  ground,  and  the  wind  is  strong  in 
tbe  direction  of  his  neighbor's  lands,  he  may 
well  be  charged  with  negligence  if  he  sets  a 
fire,  or  if,  having  set  it,  he  does  not  exerciae 
that  care  to  keep  it  under  control  which  ordi- 
nary prudence  dictates." 

This  rule  is  In  accord  with  practically  the 
unanimous  decisions  upon  the  subject,  among 
which  are  Black  v.  Obrlst  Church  Finance 
Co.,  App.  Caa.  [1894]  48;  McVay  v.  Central 
California  Invest.  Co.,  6  Cal.  App.  184.  91 
Pac.  745;  Richard  v.  Schleusener,  41  Mlnii. 
49,  42  N.  W.  599. 

Tbe  question  whether  tbe  Injury  suffered 
by  the  plaintiffs  was  the  natural  and  prox- 
imate cause  of  the  fires  set  by  tbe  defend- 
ant was  properly  submitted  to  the  Jury.  The 
general  principles  upon  this  snbject  were 
stated  In  State,  use  of  Scott,  v.  W.  B.  &  A. 
Electric  R.  B.  Co.,  101  AtL  546,  and  need  not 
be  here  restated.  In  the  recent  case  of  the 
Western  Md.  R.  R.  Co.  v.  Jacques,  129  Md. 
400,  99  Aa  649,  we  said: 

"Tbe  rule  long  in  force  is  that  where  fire  baa 
not  been  directly  communicated  to  the  plaintiff's 
property  by  sparks,  or  other  burning  matter 
from  the  engine,  but  has  been  communicated 
across  other  property,  the  question  to  be  sub- 
mitted to  the  jurv,  to  determine  from  all  tbe 
facts,  is  whether  toe  injury  complained  of  is  the 
natural  consequence  of  the  defendant's  negli- 
gence, or  whether  it  has  been  caused  by  some 
mtervening  cause.  Tbe  record  shows  tbat  this 
question  was  properly  submitted.  A.  &  E.  B. 
R.  Co.  V.  Gantt,  39  Md.  115;  P.  W.  &  B.  R.  K. 
V.  Constable,  39  Md.  149;  Green  Ridge  R.  B. 
V.  Brinkman,  04  Md.  62  [20  Atl.  1024,  54  Am. 
Rep.  765];  Carter  v.  Md.  &  Pa.  B.  R.,  112 
Md.  S89  [77  Aa  301]." 


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OliARK  V.  BOSTON  A  M.  B.  H. 


795 


As  to  ihe  twenty-first,  twenty^second,  and 
twenty-third  bills  of  exceptions,  wMch  were 
taken  to  the  statements  made  by  the  counsel 
In  argument,  we  find  nothing  sufficient  to 
<anse  a  reversal  after  a  careful  examination 
ot  the  record,  and  of  the  principles  by  which 
the  courts  are  guided  in  passing  upon  sudi 
objections.  We  said  in  Esterllne  t.  State, 
105  Md.  629,  66  Atl.  260: 

"It  is  the  duty  of  counsel  to  confine  himself 
in  argument  to  the  facts  in  evidence,  and  he 
should  not  be  permitted  by  the  court,  over  prop- 
er objection,  to  state  and  comment  upon  facts 
not  in  evidence,  or  to  state  what  be  could  have 
proven.  Persistence  in  this  course  of  conduct 
may  furnish  good  groands  for  a  new  trial.  The 
conduct  of  the  trial  must  of  necessity  rest  large- 
ly in  the  control  and  discretion  of  the  presiding 
judge,  and  the  appellate  court  should  in  no  case 
interfere  with  the  judgment,  unless  there  be  an 
abuse  of  discretion  by  the  trial  judge  of  a  char- 
acter likely  to  have  injured  the  complaining 
party.  •  •  •  The  observations  of  Mr.  Jus- 
tice Brown  upon  this  subject  in  Dunlop  v.  Unit- 
ed States,  165  U.  S.  486  [17  Sup.  Ct  876, 
41  L.  Ed.  799]  may  well  be  applied  to  the  facts 
embraced  in  this  exception:  "There  is  no  doubt 
that  in  the  heat  of  argument,  counsel  do  occa- 
sionally make  remarks  that  are  not  justified  by 
the  testimony  and  which  are  or  may  be  prejudl- 
<rial  to  the  accused.  In  such  cases,  however,  if 
the  court  interfere,  and  counsel  promptly  with- 
draw the  remark,  the  error  will  generally  be 
deemed  to  be  cured.  If  every  remark  made  by 
counsel  outside  of  the  testimony  were  ground  for 
a  reversal,  comparatively  few  verdicts  would 
stand,  since  in  the  ardor  of  advocacy,  and  in  the 
excitement  of  trial,  even  the  most  experienced 
counsel  are  occasionally  carried  away  by  this 
temptation.' " 

[5,6]  There  remains  for  consideration  the 
19  bills  of  exceptions  taken  to  rulings  on  evi- 
dence. The  only  really  Important  ones  are 
the  second,  third,  eighth,  ninth,  and  tenth, 
which  relate  to  the  qualifications  of  Thomas 
F.  Murphy  and  Cornelius  F.  Murphy,  to 
speak  as  to  tlie  value  of  the  timber  before 
and  after  the  fire  with  a  view  of  establishing 
the  damages.  Belt  K.  R.  Co.  v.  Sattler,  100 
Md.  333,  59  Atl.  65:1 ;  Western  Md.  R.  R.  Co. 
V.  Jacques,  supra.  In  Chateaugay  Ore  & 
Iron  Co.  V.  Blake,  144  U.  S.  476,  12  Sup.  Ct 
731,  36  L.  Ed.  510,  the  court  said  that  how 
jnuch  knowledge  a  witness  must  possess  be- 
fore he  can  be  allowed  to  give  his  opinion  as 
an  expert  must  in  the  nature  of  things  be 
left  largely  to  the  trial  court,  and  its  rulings 
will  not  be  disturbed  unless  clearly  erro- 
neous. We  think  these  witnesses  were  qual- 
ified to  speak  upon  the  subject  of  value. 

[7]  There  was  technical  error  in  some  of 
the  rulings  embraced  in  some  of  the  other 
exceptions,  but  some  of  the  evidence  admitted 
was  of  no  Importance,  and  as  to  the  other 
rulings  the  record  shows  that  substantially 
tbe  same  evidence  was  admitted  without  ob- 
jection ^ther  before  or  after  the  rulings. 
There  must  be  a.  concurrence  of  error  and 
Injury,  and  after  a  careful  examination  of 
the  whole  record  we  find  no  error  which 
would  justify  us  in  reversing  the  judgment 
Judgment  afiirmed,  with  costs. 


m  N.  B.  438) 
CIABK  V.  BOSTON  ft  M.  R.  B. 

(Supreme  Court  of  New  Hampshire.    Merri- 
mack.   June  5, 1917.) 

1.  BAUiBOAnS  €=»470  —  LlABIUTT  FOB  IWJU- 

BiEs  Caused  bt  B"iee— Statute. 
Pub.  St  1901,  c.  159,  S  29,  making  a  rafi- 
road  liable  for  damages  to  person  or  property 
from  fires  set  by  its  locomotives,  has  oo  applica- 
tion to  the  case  of  a  fireman,  employed  by  a 
municipality  to  extinguish  fires,  and  injured  in 
attempting  to  extinguish  a  fire  set  by  a  railroad's 
locomotive ;  the  act  applying  only  to  those  so 
situated  that  as  to  them  the  operation  of  the 
road  constitutes  an  extra  fire  hazard. 

2.  BAII.BOADS  <S=»470— Sbxtino  FiKB— Liabil- 
ity TO  Fireman. 

A  railroad,  apart  from  the  contract  of  em- 
ployment of  a  mnnidpality's  fireman,  stood  in 
no  legal  relations,  however  remote,  to  such  fire- 
man, and  owed  no  duty  toward  mm  to  refrain 
from  setting  a  fire. 

3.  Action  $=34— Infbinokioint  or  Code  of 

MOSAXS. 

Courts  cannot  give  relief  in  damages  for  a 
mere  infraction  of  a  code  of  morals. 

4.  Bailboads  €=)470— Setting  Fibk— Liabil- 
ITT  FOB  Injubies  to  Fireman. 

A  railroad  was  not  liable  for  injuries  to  4 
fireman  employed  by  a  municipality  because  o( 
his  public  employment  while  endeavoring  to  ex- 
tinguish a  fire  set  by  its  locomotive;  there  be 
ing  no  breach  of  any  duty  owed  the  fireman  b) 
the  road. 

Transferred  from  Superior  Court,  Merri- 
mack County;    Sawyer,  Judge. 

Action  by  Clarence  L.  Clark  against  thi 
Boston  &  Maine  Railroad.  On  transfer  from 
the  superior  court  on  defendant's  demurrer. 
Demurrer  sustained. 

Case  for  Injuries  alleged  to  have  beexi 
caused  to  the  plaintiff  by  a  fire  set  by  ttus 
defendant's  locomotive.  There  is  a  general 
count  for  negligence  and  one  setting  out  that 
the  plaintUf  was  a  member  of  the  Concord 
fire  department  and  received  his  Injurlea 
whUe  acting  in  that  capacity  attempting  to 
extinguish  the  fire.  A  specification  filed  later 
shows  that  the  first  count  Is  for  the  same  al- 
leged wrong.  There  Is  also  a  count  alleging 
a  right  of  recovery  under  the  statute  Impos- 
ing liability  upon  railroads  for  damages  caus- 
ed by  fires  set  by  locomotives. 

Robert  W.  Upton,  of  Concord,  for  plaintiff. 
Streeter,  Demond,  Woodworth  &  SuUoway, 
and  Jonathan  Piper,  all  of  Concord,  for  de- 
fendant 

PEASLEE,  J.  The  declaration,  and  the 
spedflcatlon  of  facts  applicable  to  the  first 
count,  show  that  the  plaintiff's  claim  i«sts 
upon  the  theory  that  a  fireman  employed  by 
a  municipality  to  extinguish  fires  may  recov- 
er from  the  party  whose  act  caused  the  fire. 
It  is  not  necessary  to  consider  whether  a  re- 
covery might  be  had  if  the  fire  had  been  de- 
signedly set,  with  the  Intent  to  Injure  the 
plaintiff,  for  his  claim  Is  based  upon  the  statu- 
tory liability  of  railroads,  or  upon  negligence. 

[1]  The  statute  making  a  railroad  liable 


4$s>For  other  oaaes  see  same  topic  and  KBT-NUMBBR  is  sU  Ker-Nomlierid  Digests  ud  ladexM 


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796 


101  ATIANTIC  REPOBTBB 


(N.H. 


for  damage  to  person  or  property  from  Area 
set  by  its  locomoUres  (P.  S.  c.  159,  {  29)  has 
no  application  to  tlie  present  case.  Tliat  act 
at^lies  only  to  those  so  situated  tbat  as  to 
them  the  operation  of  the  railroad  constitutes 
an  extra  fire  hazard.  If  the  act  is  broad 
enough  In  its  terms  so  that  it  could  have 
be«i  construed  to  Include  all  damage  that 
oould  in  any  sense  be  deemed  to  be  "caused" 
by  the  defendant,  it  is  settled  that  such  was 
not  the  legislative  intent.  Welch  t.  Railroad, 
68  N.  H.  206,  44  Atl.  304,  is  conclusive  on 
this  issue.  If  the  statute  covered  the  present 
case  the  plaintiff  in  that  case  would  have  re- 
covered. The  loss  there  was  caused  by  a  Are 
set  by  the  defendant;  but  because  the  plain- 
tiff's property  was  in  the  cnstody  of  the  de- 
fendant as  a  bailee,  It  was  held  not  to  be 
within  the  class  contemplated  by  the  Legis- 
lature. While  this  conclusion  rests  in  part 
upon  the  language  of  the  act  giving  the  rail- 
road "an  Insurable  interest  In  all  property 
situate  on  the  line  of  such  road,  exposed  to 
such  damage"  (G.  L.  c.  162,  f  9;  P.  S.  c.  150, 
I  30),  the  reasoning  is  not  inapplicable  in 
determining  the  meaning  of  the  related  pro- 
vision as  to  "damages  to  any  person."  The 
declaration  of  liability  is  in  no  way  differen- 
tiated. There  was  occasion  to  express  the 
understood  limitation  as  to  one  class,  and  It 
is  not  to  be  presumed  that  the  unexpressed 
intent  was  different  as  to  the  other  class. 
The  statute  applies  to  persona  and  property 
exposed  to  damage  along  the  line  of  the  road. 
It  does  not  apply  to  firemen  or  fire  engines 
whose  exposure  results  from  an  attempt  to 
extinguish  the  fire.  As  the  statute  has  no  ap- 
plication, the  rights  of  the  partl<«  are  deter- 
mined by  the  common-law  rules  governing 
actions  to  recover  for  negligence. 

Authorities  holding  that  a  volunteer  res- 
cuer of  persons  or  property  may  recover 
from  a  third  person  whose  negligence  caused 
the  situation  inducing  the  volunteer  to  act  are 
relied  upon  by  the  plaintiff.  It  is  also  con- 
tended that  his  contract  of  employment  as  a 
city  fireman  gives  hlni  a  standing  more  favor- 
able to  him  than  that  of  the  volunteer. 

[2]  The  case  has  been  largely  argued  upon 
the  issue  of  proximate  cause.  In  furtherance 
of  the  first  of  these  claims.  But  that  Question 
docs  not  arise  unless  tho  defendant's  act  bore 
some  legal  relation  to  such  a  volunteer.  The 
question  here  is  not  one  of  proximate  or  re- 
mote cause,  but  whether  the  defendant  owed 
any  duty  at  all  to  the  plaintiff — whether, 
apart  from  his  contract  of  employment.  It 
stood  in  any  legal  relationship  to  Urn,  how- 
ever remote.  It  seems  to  us  tbat  It  did  not 
Neither  the  plaintiff  nor  his  property  was  In 
a  position  to  be  injured  by  a  fire  set  by  the 
defendant.  His  connection  with  the  fire  arose 
solely  from  his  own  act  tn  coming  into  con- 
tact with  It  after  it  was  set. 

It  Is  the  law  of  this  state  that  as  to  snch 
interveners  the  defendant  who  created  the 
situation  owed  no  anticipatory  duty.    McUlll 


T.  Granite  Co.,  70  N.  H.  125,  46  Atl.  684,  85 
Am.  St.  B^.  618.  The  situation  Is  much  lUce 
that  of  the  land  owner  and  a  licensee.  So 
long  as  no  Intimtional  injury  is  done,  and  no 
negligent  act  after  the  licensee  is  present, 
there  Is  no  liability.  HobI>s  r.  Company,  75 
N.  H.  73,  70  Aa  1082,  18  I*  B.  A.  (N.  S.)  939. 
The  cases  from  other  Jurisdictions  holding 
that  there  is  a  legal  liability  in  such  a  esse 
rest  upon  the  ground  tliat  the  intervener 
had  a  moral  right,  if  not  a  moral  duty,  to 
make  the  attempt  to  save  life  or  property; 
and  because  it  may  be  assumed  that  meo 
will  do  their  moral  duty,  it  Is  argued  that  the 
defendant  Is  bound  to  consider  the  prohahlli- 
tles  as  to  their  subsequent  and  morally  In- 
duced conduct.  The  defect  in  this  reasoning 
is  that  it  substitutes  mornl  rights  and  duties 
for  those  recognized  and  regulated  by  law. 

As  to  the  Intervener  the  defendant's  previ- 
ous conduct  is  wrong  only  in  the  sense  tliat 
it  is  a  wrong  to  society  at  large.  It  may 
be  a  moral  wrong  and  may  be  punishable 
on  behalf  of  the  public;  but  It  is  not  a  pri- 
vate legal  wrong  to  individual  members  of 
the  public,  who  of  their  own  motion  under- 
take to  lessen  the  evil  effects  of  the  defend- 
ant's dereliction  from  duty.  The  Good 
Samaritan  could  not  recover  from  the  thieves 
the  value  of  the  oil  and  wine  wltlch  he 
poured  into  the  wounds  of  the  man  at  Jer- 
icho. His  recompense  is  the  same  to-day 
that  it  always  has  been. 

[S]  Unless  it  be  true  tbat  courts  can  give 
relief  In  damages  for  a  mere  infraction  of  a 
code  of  morals,  the  plaintlfTs  argument  Bas 
no  weight  Tbat  courts  are  not  empowered 
tQ  so  act  in  this  Jurisdiction  is  too  well 
settled  to  require  discussion.  Frost  v.  Rall- 
rond,  64  N.  H.  220,  9  Atl.  790,  10  Ant  St 
Bep.  396 ;  Buch  v.  Amory  Co.,  69  N.  H.  257, 
44  Ati.  809,  76  Am.  St.  Bep.  163.  If  legal 
liability  is  to  be  extended  so  as  to  cover  this 
new  field,  the  change  must  be  made  by  the 
Legislature. 

The  plaintiff's  argument  tbat  the  test  laid 
down  in  Garland  v.  Ballroad,  76  N.  n.  556, 
86  Atl.  141,  46  Ia  B.  A.  (N.  S.)  338,  Ann.  Gn& 
1Q13B,  024,  Is  applicable  in  his  favor  falls 
In  an  essential  element  It  Is  not  true  that, 
apart  from  bis  contract  with  the  city,  the 
defendant  ought  to  liave  known  that  the 
plaintiff  would  be  in  a  position  to  be  Injured 
toy  what  it  did.  He  was  not  in  such  position. 
He  does  not  so  state  In  his  declaration. 
What  be  did  whs  to  put  himself  in  such  posi- 
tion after  the  defendant  ceased  to  be  an 
actor,  and  because  a  fire  was  in  progress. 
He  did  not  oome  upon  the  fire  accidentally, 
or  in  the  course  of  Independent  and  lawi^Il 
conduct  nor  did  the  flre  come  upon  hint 
while  he  was  so  circumstanced.  Such  rlg^t 
as  he  had  to  be  an  actor  in  this  matter  grew 
out  of  the  fact  that  there  was  a  flre.  It  was 
not  a  right  whose  exercise  the  flre  interfered 
with. 

While  in  a  certain  sense  the  flre  may  be 
said  to  be  a  cause  of  the  plaintiff's  injury. 


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OEISSLEK  V.  BEADING  TRUST  CO. 


797 


It  does  not  follow  tliat  therefore  tbe  defend- 
ant's negligence  was  a  breadi  of  any  duty 
the  defendant  owed  to  him.  "The  tortious 
natuVe  of  the  defendant's  conduct  and  the 
can  satire  effect  of  that  conduct  are  entirely 
distinct  matters;  and  what  is  a  requisite 
element  as  to  the  first  subject  is  not  neces- 
sarily so  as  to  the  second."  Jeremiah  Smith 
In  25  Harv.  Law  Rev.  245.  In  Garland  v. 
Railroad,  supra,  the  defendant's  act  un- 
doubtedly caused  the  Injury,  yet  it  was 
no  breach  of  a  duty  owed  to  the  party  who 
was  injured. 

The  discussion  In  Kambour  ▼.  Railroad,  77 
N.  H.  33,  86  AU.  624,  45  L.  R.  A.  (N.  S.)  1188. 
touching  the  rights  of  certain  classes  of 
people  who  encounter  known  danger,  is  not 
germane  to  the  present  case.  That  discus- 
sion relates  to  the  acts  of  a  plaintiff  to 
whom  a  duty  is  owed,  who  knows  the  duty 
lias  been  violated  by  the  defendant.  It  is 
not  authority  for  the  proposition  that  fault 
as  to  one  party  constitutes  a  wrong  to  a  third 
person  who  knows  of  the  wrong  and  Tolun- 
tnrlly  secXs  to  remedy  it.  The  citation  there 
of  cases  permitting  volunteer  rescuers  to  re- 
cover was  only  for  the  purpose  of  showing 
that  the  maxim,  "Volenti  non  fit  injuria" 
was  not  generally  considered  to  be  a  rule  of 
universal  application  In  the  law  of  negli- 
gence. The  question  whether  these  cases 
were  good  law  was  not  involved,  and  there 
was  no  attempt  to  pass  upon  It.  Nor  is  it 
necessaiy  to  now  consider  this  aspect  of 
them.  It  is  enough  for  the  present  case  to 
say  that  even  if  the  voluntary  character 
of  the  act  does  not  amount  to  an  assent  to 
the  result,  su<A  act  is  not  of  a  character 
to  raise  an  anticipatory  duty  on  the  part  of 
those  not  otherwise  related  to  the  actor  to 
take  care  to  avoid  furnishing  him  an  opiKir- 
tunity  to  act. 

[4]  The  other  claim  suggested  is  that  t>e- 
cause  the  plaintiff  was  employed  to  extin- 
guish fires  he  stands  differently  from  a  vol- 
unteer and  may  recover  when  a  volunteer 
could  not.  But  if  it  be  assumed  that  his 
contract  of  employment  brought  him  into  a 
legal  relation  to  the  defendant  and  to  its 
conduct  In  setting  the  fire,  he  is  no  better 
off.  If  his  contract  with  the  public  created 
a  relation  to  the  individual  member  thereof, 
the  relation  created  is  such  as  the  parties 
contemplated.  It  appeared  to  the  public  de- 
sirable to  reduce  the  fire  losses  of  its  mem- 
bers by  providing  for  the  extinguishment  of 
fires.  The  contract  with  the  fireman  is  for 
the  benefit  of  those  who  would  be  damaged 
by  the  fire.  The  agreement  so  made  differs 
In  no  respect  essential  to  this  case  from  the 
ordlnar.v  contmct  of  Insurance.  That  is, 
the  plaintiff  has  agreed  to  undertake  to  less- 
en the  fire  damage  which  would  otherwise 
fall  upon  the  defendant  It  is  argued  that 
this  relation  exists  only  as  between  the  fire- 
man and  the  party  whose   property  is   in 


danger  of  being  consumed  by  the  fire.  But 
this  is  much  too  narrow  a  view.  If  a  rela- 
tion arises  at  all,  it  is  one  to  all  members 
of  the  public  whose  interests  or  liability 
are  Involved  by  the  fire.  This  is  the  com- 
mon-sense view  of  the  situation.  The  plain- 
tiff, knowing  that  fires  will  occur  from  vari- 
ous causes,  some  culpable  and  some  not,  un- 
dertakes the  work  of  extinguishing  all  fires 
without  reference  to  how  they  were  caused. 
The  chance  of  injury  in  doing  such  work  is 
necessarily  assumed  by  him.  This  assump- 
tion arises  from  the  nature  and  terms  of 
the  contract  he  made.  He  agreed  to  fight 
all  such  fires  as  should  occur.  There  is  in 
his  contract  no  distinction  as  to  how  the 
fires  originated.  If  his  contract  has  any 
bearing  at  all  upon  the  relation  of  the  paiv 
ties,  It  establishes  an  express  assumption  of 
the  risk  here  involved,  and  bars  any  recovery 
therefor. 

The  rule  that  one  may  not  contract  against 
the  consequences  of  his  own  future  negligence 
has  no  application.  This  is  merely  an  under- 
taking of  one  not  otherwise  related  to  the 
situation  to  bear  for  the  defendant  the  con- 
sequences of  Its  fault  The  defendant  Is 
not  thereby  released  from  any  liability  im- 
posed upon  It  by  law.  The  agreement  is 
like  any  Insurance  contract,  and  Its  validity 
is  not  open  to  question. 

Whether,  then,  the  plaintiff  is  treated  as  a 
volunteer  or  as  one  whose  contract  of  em- 
ployment brought  him  into  a  legal  relation 
to  the  defendant,  the  result  is  the  same.  In 
neither  case  was  there  a  breach  of  any  duty 
owed  to  him  by  the  defendant 

Demurrer  sustained.    All  concur. 

(KT  Pa.  s»> 

GEISSLER  et  al.  v.  BEADING  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.     March  2S, 
1917.) 

1.  PKRPKTnmEs  ®=>1— Natubb  of  Rttlb. 

"Perpetuities"  are  grants  of  property  wliere- 
in  the  vesting  of  an  estate  or  interest  is  unlaw- 
fully postponed. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Perpe- 
tuity.) 

2.  Wills  ^=>630(2)  —  Vestkd  ob  Continobnt 
Estate— Legacies. 

The  rule  is  that,  where  a  legacy  is  given  to 
a  person  to  be  paid  at  a  future  time,  it  vests  im- 
mediately, but  that,  when  not  given  until  a  cer- 
tain future  time,  it  does  not  vest  until  that  time. 

3.  WiLt*  «:»634(14) — Constbuction— VESTEn 

OB  CONTINOENT  REUAINDEB. 

A  devise  of  property  in  trust,  limiting  the  in- 
cone  to  the  testator's  children  by  name  for  life 
and  after  their  death  to  their  children  as  a  class, 
and  after  the  death  of  the  surviving  grandchild 
the  corpus  to  vest  in  testator's  great-grandchil- 
dren per  capita,  created  a  contingent  remain- 
der, to  vest  in  the  great-grandchildren  as  a 
class  after  the  death  of  the  testator's  last 
grandchild. 

4.  Pebpetuitcss    ®=>4(&)    —    Testahentabt 
Tbust. 

Such  devise  offended  the  rale  against  perpe- 
tuities, and  was  void,  and  the  testator's  hdrs 


4t=9'orot]Mr  oases  ne  same  toploand  KBY-NUMBER  Is  ill  Key-Numbered  DlgesU  and  lodexw 


Digitized  by 


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798 


101  ATLANTIC  REPORTER 


(Pa. 


might  compel  the  trustee  to  convey  the  property 
to  them  absolutely. 

Appeal  from  Court  of  Common  Pleas, 
Berks  County. 

BUI  by  Henry  C.  Geissler  and  others,  heirs, 
to  annul  a  testamentary  trust  and  for  recon- 
veyance, against  the  Reading  Trust  Com- 
pany, trustee  under  the  will  of  Henry  C. 
Geissler,  deceased,  and  others.  From  a  de- 
cree for  plaintiffs,  defendants  appeal.  Af- 
firmed. 

Testator's  will  provided  in  part  aa  follows: 

(7)  "Item— I  give,  devise  and  bequeath  to  my 
three  sons,  Henry  0.  Geissler.  Jr..  Samuel  K. 
Geissler  and  Robert  Franklin  Geissler,  the 
above-mentioned    properties    contained    in    pur- 

?arta  numbered  1  and  2,  to  wit:  727,  729  and 
31  Penn  street  and  all  buildings  appertaining 
thereto  and  726  and  728  Court  street  and  720 
Coart  street,  marble  works  and  stable,  all  in 
the  said  city  of  Beading,  said  county  and  state, 
same  to  be  held  by  them  in  common,  to  use,  oc- 
cupy and  enjoy  the  rents,  issues  and  profits 
thereof,  as  long  as  they  shall  live.  The  same 
shall  not  be  sold  so  long  as  any  one  of  the  said 
RODS  shall  live.  Should  the  said  sons  ngree  to 
dissolve  partnership  now  existing  between  them, 
all  to  discontinue  the  business  now  engaged  in, 
to  wit:  The  tin  and  stove  trade  and  tile  and 
mantle  works — and  all  engage  in  some  other  line 
of  trade,  the  said  premises  to  be  used  by  all — 
or,  should  they  engage  in  different  enterprises, 
the  said  premises  not  used  by  any,  then,  the 
same  shall  be  rented,  and  proceeds,  after  taxes, 
water  rents  and  necessary  repairs  shall  be  paid, 
to  be  divided  among  the  three  sons,  their  heirs, 
share  and  share  alike.  After  all  the  said  three 
sons  shall  bave  died,  then  the  said  premises 
may  be  sold,  if  deemed  advisable  by  my  herein- 
after named  executor,  a  good  and  su0icient  price 
secured  therefor,  the  profeeds  therefrom  to  be 
invested  and  the  income  thereof  to  be  distribut- 
ed to  the  children  of  my  deceased  sous,  share 
and  share  alike,  if  of  age  and  properly  behaved 
and  conducting  themselves  well,  if  not — then 
the  same  to  be  expended  in  their  keep  and  main- 
tenance— and,  after  all  such  grandchildren  shall 
bave  died,  then  the  principai  sums  so  created 
shall  be  divided  among  all  the  children  of  my 
grandchildren,  share  and  share  alike,  'per  capi- 
ta' and  not  'per  stirpes' — the  mortgage,  now  a 
lien  upon  said  premises,  to  be  paid  and  lien  disK 
charged,  if  not  alreaily  so  discharged  at  my 
death,  as  soon  after  my  death  as  can  be  done, 
provision  to  be  so  made  by  sale  of  such  securi- 
ties as  may  be  necessary,  good  and  fair  price 
being  received  for  same," 

(8)  "Item— I  give,  devise  and  bequeath  unto 
my  daughter,  Rosa  M.  Burg,  widow  of  the  Inte 
Edward  C.  Berg,  deceased,  the  two  dwelling 
bouses  and  lots  or  pieces  of  ground  upon  which 
the  same  are  erected,  situate  on  North  Fifth 
street,  beyond  Battonwood  street,  Nnmber  408 
and  410  North  Fifth  street,  in  said  city  of 
Reading,  county  and  state  aforesaid,  which  I 
have  appraised  at  the  sum  of  five  thousand  ($5,- 
000)  dollars  per  dwelling,  aggregating  ten  thou- 
sand ($10,000)  dollars,  for  and  during  the  term 
of  her  natural  life,  sne  to  enjoy  the  rents,  is- 
sues and  proSts  of  the  same,  after  all  taxes  and 
necessary  repairs  shall  have  been  made,  as  long 
as  she  shall  live.  And  I  direct  that  additional 
real  estate,  free  from  all  incumbrances,  or  first 
class  mortgage  security,  or  securities  be  provid- 
ed for  her,  which,  together  with  the  above  two 
dwellings  valued  at  ten  thousand  ($10,000)  dol- 
lars, as  above  contained,  shall  aggregate  the  sum 
of  nineteen  thousand  three  hundred  and  sixty- 
one  and  ($19,3(tl.08)  o"/ioo  dollars,  same  being 
an  equivalent  for  what  has  been  given  to  the 
three  sons  as  above  contained  in  purparts  Nos. 
1  and  2,  and  the  material,  wares  and  equipment 


contained  in  the  two  branches  of  btisiness,  to 
wit,  the  tin  and  stove  trade  and  the  tile  and 
mantle  business,  whicli  I  gave  the  said  three 
sons,  when  I  retired  from  business  and  Installed 
my  said  sons  into  the  said  branch  of  business, 
August  1,  1908,— same  to  be  invested  and  held 
in  the  name  of  my  estate,  the  income  from  the 
dwellings  and  that  from  the  additional  invest- 
ment to  be  paid  to  her,  for  her  sole  and  sepa- 
rate use  as  long  as  she  shall  live,  said  income  to 
be  paid  to  her,  and  to  her  alone,  her  receipt 
alone  to  be  in  payment  of  same,  such  income 
not  to  be  subject  to  any  bills  or  liabilities  which 
may  be  contracted,  nor  be  liable  to  attachment 
nor  in  any  manner,  menace  nor  liable  for  any 
debt  or  loss  sustained  by  said  daughter,  Rosa 
M.  Berg.  After  the  death  of  my  daughter, 
Rosa  M.  Berg,  if  in  the  judgment  of  my  here- 
inafter named  execntor,  a  good  and  sufficient 
price  be  secured  for  same,  the  real  estate  so  set 
aside  for  her  as  above  contained,  or,  that  may 
be  bought  f(H:  her  use  and  enjoyment,  may  be 
sold  and  the  proceeds  reinvested  in  otlier  good 
premises  same  continued  in  my  estate,  or  in 
good  first  mortgage  security  or  securities,  in  my 
estate,  the  income  whereof  shall  be  distributed 
to  my  grandchildren,  children  of  my  said  daugh- 
ter, Rosa  M.  Berg,  share  and  share  alike,  if 
of  age  and  properly  behaved  and  conducting 
themselves  well,  if  not— then  the  same  to  be 
expended  for  such  so  misbehaving  for  their  main- 
tenance and  keep.  This  extra  provision  extend- 
ing to  my  grandchildren  is  made  in  considera- 
tion of  the  fact  that  my  good  deceased  wife  and 
I  have  always  had  the  grandchildren  around 
us,  in  our  home,  and  are  very  warmly  attached 
to  them,  and,  hence  this  provision." 

(9)  "Item — I  direct  that  the  additional  earn 
of  two  thousand  five  hundred  and  fifty-five  and 
■Vioo  ($2,555.69)  dollars  be  invested  by  my 
hereinafter  named  executor,  which  sum,  together 
with  the  real  estate  hereinbefore  disposed  of, 
and  the  amount  of  stock  as  per  inventory,  giv- 
en to  the  boys,  when  the  two  branches  of  busi- 
ness were  transferred  to  them,  August  1, 1908,  to 
wit,  'eight  thousand  eighty-three  and  ^Vito 
($8,083.23)  dollars,  with  the  additional  amount 
to  make  tne  share  of  Rosa  M.  Berg  equal  to  the 
share  of  one  of  my  sons,  will  make  a  grand  to- 
tal of  eighty  thousand  dollars — the  income  of 
nhich  said  sum  of  two  thousand  five  hundred 
and  fifty-five  and  *Vioo  dollars  shall  be  divided 
iuto  four  equal  shares  and  be  paid  to  the  said 
Henry  C.  Geissler,  Jr.,  Samuel  K.  Geissler,  and 
Robert  Franklin  Geissler  and  Rosa  M.  Berg, 
and  to  their  children,  the  children  Of  any  de- 
ceased child  or  children,  throughout  this  testa- 
ment, to  take  the  share  of  such  dec^Med  parent, 
share  and  share  alike.' 

(10)  "Item— After  the  death  of  all  my  children 
and  their  children  (my  grandchildren),  then  I 
direct  that  the  above-mentioned  investments 
(real  estate  and  securities),  aggregating  the  sum 
of  eighty  thousand  ($80,000)  dollars  less  the 
amount  as  contained  in  inventory  of  stock,  to 
wit,  the  sum  of  eight  thousand  eighty-three  and 
*Vioo  ($8,083.23)  doUars,  or  the  sum  of  seven- 
ty-two thousand  four  hundred  rfzteen  and 
'Vioo  ($72,41&77)  dollars,  together  with  what- 
ever increase  of  principal,  by  reason  of  higher 
values  received  for  real  estate  sold,  as  herein- 
before set  aside  to  the  uses  of  the  sons  and 
daughter,  and  whatever  other  increase  of  real 
estate  and  securities,  together  with  interest 
which  shall  have  accrued,  shall  be  divided  among 
all  my  great-grandchildren,  grandchildren  of  my 
sons,  Henry  C.  Geissler,  Jr.,  Samuel  K.  Geissler, 
Robert  Franklin  Geissler,  and  my  daughter, 
Rosa  M.  Berg,  all  share  and  share  alike,  same 
taking  per  capita  and  not  per  stirpes." 

Other  facts  appear  In  the  opinion  of  "Wag- 
ner, J.,  In  the  common  pleas,  sur  defendaafa 
demurrer  to  plaintiff's  bill: 


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OKISSIiEB  T.  BEADIKO  TRUST  CO. 


79» 


The  plaintiffs  havo  filed  a  bill  in  equity  where- 
in they  eet  forth  certain  prorisions  in  the  will 
o{  Henr7  C.  Geissler,  deceased,  and  allege  that 
the  scheme  of  the  trust  attempted  to  be  estab- 
lished by  these  provisions  is  repugnant  to  the 
rule  against  perpetuities,  and  void  for  remote- 
ness. They  therefore  pray  the  conrt  to  enter  a 
decree  d.eclaring  said  trust  null  and  void,  and 
directing  the  defendant  to  convey  and  quit- 
claim udto  the  plaintiffs  the  real  and  personal 
property  comprising  the  said  trust  estate.  To 
this  bill  defendant  demurred. 

Item  7  of  the  will  gives  to  Henry  C.  Geissler. 
Jr.,  Samuel  K.  Geissler,  and  Robert  Franklin 
Geissler,  727,  729,  and  781  Penn  street,  726,  728, 
and  720  Court  street,  to  he  held  by  them  in  com- 
mon to  use  and  enjoy  the  rents,  etc,  as  long  as 
they  live,  same  not  to  be  sold  as  long  as  any 
one  of  the  sons  shall  live.  It  further  ■directs 
that,  after  the  three  sons  shall  have  died,  then 
the  premises  may  be  sold  by  his  exocutor,  if 
deemed  advisable,  the  proceeds  therefrom  tx>  be 
invested  and  the  income  thereof  to  be  distribut- 
ed to  the  children  of  his  deceased  sons,  share  and 
share  alike,  if  of  age  and  properly  behaved  and 
conducting  themselves  well,  and,  after  all  such 
grandchildren  shall  have  died,  then  the  princi- 
pal sum  so  created  shall  be  divided  among  all 
the  children  of  his  grandchildren,  share  and 
share  alike,  ;>er  capita  and  not  per  stirpes. 

Section  8  gives  to  Bnsa  M.  Berg,  his  daughter 
and  only  other  child,  408  and  410  North  Rfth 
street,  as  long  as  she  lives,  and  directs  that  ad- 
ditional real  estate  free  from  all  incumbrances 
be  provided  for  her,  so  that  the  aggregate  value 
shall  amount  to  $19,361.08;  the  income  from 
the  dwellings  and  additional  investment  to  bo 
paid  to  her  as  long  as  she  shall  live.  After 
her  death  the  real  estate  may  be  sold  by  the 
executor,  and  the  proceeds  invested  in  any  other 
good  premises  or  in  first  mortgage  sncurity  or 
securities,  tho  income  to  be  distributed  to  his 
grandchildren,  the  children  of  his  daughter,  Hosa 
M.  Berg,  share  and  share  alike. 

Item  10  provides  that,  after  the  death  of  all 
his  children  and  their  children  Oiis  grandchil- 
dren), then  the  above  trust  estate  (real  estato 
and  securities),  aggregating  the  sum  of  $72,410.- 
77,  together  with  increase  of  principal,  shall  be 
divided  among  all  bis  great-grandchildren,  grand- 
children of  his  sons,  Henry  C.  Geis-^ler,  Jr., 
Samuel  K.  Geissler,  Robert  Franklin  Geissler, 
and  his  daughter,  Rosa  M.  Berg,  all  share  and 
share  alike:  same  taking  per  capita,  and  not 
per  stirpes. 

[I.  21  Perpetuities,  as  stated  in  City  of  Phila- 
delphia V.  Girard's  Heirs,  45  Pa.  9,  26,  84  Am. 
Dec.  470,  are  '"grants  of  property,  wherein  the 
vesting  of  an  estate  or  interest  is  unlawfully 
postponed."  When,  then,  does  the  estate  in  or 
interest  to  the  principal  of  this  contemplated 
trust  fund  vest?  That  is,  do  his  great  grand- 
children take  a  vested  or  a  contingent  interest? 
In  Sternbergh's  Estate,  250  Pa.  167,  171,  95  AtL 
404,  406,  we  have:  "In  Smith's  Estate,  226  Pa. 
304,  307,  306  [75  Atl.  425,  426],  this  court  said: 
'As  Chief  Justice  Tilghman  said  in  I'atterison 
V.  Hawthorn,  12  Ser^.  &  R.  112:  "The  rule  is 
that,  where  a  legacy  is  given  to  a  person  to  be 
paid  at  a  future  time,  it  vests  immediately. 
But  when  it  is  not  given  until  a  certain  future 
time,  it  does  not  ve.st  until  that  time;  and  if 
the  legatee  dies  before,  it  is  lost." '  •  »  • 
The  statement  of  the  rule  by  Chief  Justice  (iib- 
son,  in  Bloore  v.  Smith,  9  Watts,  403.  408.  has 
always  been  accepted;  it  is  that:  'The  legacy 
shall  be  deemed  vested  or  contingent  just  as 
the  time  shall  appear  to  have  been  annexed  to 
the  gift  or  the  payment  of  it.'  "  In  the  case  at 
bar  the  time  is  manifestly  annexed  to  the  gift, 
not  merely  to  its  payment.  If  any  of  the  mem- 
bers of  the  class  die  before  the  time  fixed  for 
distribution  they  get  nothing. 

[3]  'z  will  be  noticed  that  in  this  will  a  life 
ertate  is  first  given  to  his  children,  mentioning 
them  by  name.    After  their  death  we  again  havs 


a  life  estate  to  their  children  (grandchildren  of 
testator)  as  a  class,  the  names  of  no  particular 
individuals  being  designated.  These  are  to  take 
per  capita.  It  is  clear  that  the  quantum  of  this 
life  estate  is  measured  by  the  number  of  grand- 
children living  at  the  time  of  death  of  the  last 
of  testator's  children.  Then  only  after  the 
last  of  these,  the  grandchildren,  shall  have  died 
shall  the  trust  estate  then  vest  in  the  great- 
grandchildren of  the  testator,  per  capita.  Here 
again  the  quantum  of  the  principal  of  the  trust 
estate  to  be  eventually  received  by  each  of  the 
great-grandchildren  is  determined  by  the  number 
of  great-grandchildren  in  being  at  tho  time  of 
the  death  of  the  last  grandchild.  That  is,  the 
estate  vests,  not  presently  in  designated  per- 
sons, but  only  after  the  death  of  the  last  grand- 
child of  the  testator,  in  his  then  great-grandcfail' 
dren  as  a  class  per  capita.  We  bare  here  clear- 
ly a  contingent  and  not  a  vested  interest. 

[4]  Is,  then,  this  vesting  unlawfully  post- 
poned? "The  law  allows  the  vesting  of  an  es- 
tate or  interest,  or  the  power  of  alienation,  to 
be  postponed  •  •  •  for  the  period  of  lives 
in  being,  and  21  years  and  9  months  thereafter, 
and  all  restraint.*!  upon  the  vesting,  that  may 
suspend  it  beyond  that  period,  are  treated  as 
perpetual  restraints,  and  therefore  as  void, 
and  consequently  the  estates  or  interests  depend- 
ent on  them  are  void."  City  of  Philadelphia  ▼. 
Girard's  Heirs,  45  Pa.  26,  supra.  By  the  terms 
of  the  will  the  principal  will  not  vest  in  the 
great-grandchildren  nntil  after  the  death  of  all 
the  grandchildren,  whether  now  born  or  to.  be 
hereafter  bom;  that  is,  in  the  natural  course  of 
events,  for  a  period  of  from  50  to  80  or  more 
years  after  the  period  of  lives  in  being.  This 
period  ie  too  remote,  and  offends  the  rule  of  per- 
petuities. The  antecedent  estate  thus  falls,  and 
the  heirs  at  law  of  this  testator  are  entitled  to 
immediate  possession.  Johnston's  E2state,  185 
Pa.  179,  39  AU.  879,  64  Am.  St  Rep.  6*^11; 
Gerber's  Folate,  196  Pa.  366,  46  AtL  497; 
Kountz's  Estate  (No.  1),  213  Pa.  390,  62  Atl. 
1103,  3  L.  B.  A.  (N.  S.)  639,  6  Ann.  Gas.  427; 
In  re  Kountz's  Trust,  251  Pa.  582,  96  AU.  1097. 

Findings  of  Law. 

1.  The  interest  of  the  great-grandchildren  of 
Henry  C.  Geissler,  the  decedent,  in  the  trust 
estato  of  $72,729.31,  attempted  to  be  created 
by  the  testator,  Henry  C.  Geissler,  in  his  will, 
is  not  a  vested  interest. 

2.  The  devise  of  tho  principal  of  the  property 
contained  in  the  attempted  trust  is  one  wherein 
the  vesting  thereof  is  postponed  for  a  longer 
period  than  the  period  of  lives  in  beln^  and  21 
years  and  9  months  thereafter,  is  void  under 
the  rule  against  perpetuities,  and  the  plaintiffs, 
the  heirs  at  law  of  Henry  C.  Geissler,  deceased, 
are  entitled  to  immediate  possession  of  the  said 
principal. 

3.  The  plaintiffs  are  entitled  to  a  decree  de- 
claring the  aforesaid  trust,  aggregating  in  value 
the  sum  of  $72,729.31,  null  and  void,  and  that 
the  Reading  Trust  Company,  defendant,  be  di- 
rected to  convey  a  quitclaim  unto  the  plaintiffs, 
Henry  C.  Geissler,  Jr.,  Samuel  K.  Geissler,  Rob- 
ert Franklin  Geissler,  and  Rosa  M.  Berg,  of 
the  real  estate  and  j>ersonal  property  described 
in  the  will  as  comprising  the  said  trust  estate. 

4.  "The  costs  of  the  proceeding  shall  be  paid 
by  the  defendant. 

The  court  below  entered  the  following  de- 
cree: 

1.  That  tho  demurrer  be  and  la  hereby  over- 
ruled. 

2.  That  the  devise  of  the  beneficial  estate  or 
interests  in  the  six  several  purparts  of  real 
estate  mentioned  and  described  in  the  third 
paragraph  of '  the  plaintiff's  bill,  contained  in 
the  seventh  clause  of  the  last  will  of  Henry  C. 
Geissler,  deceased,  the  several  purparts  contain- 
ed in  the  eighth  clause  of  said  will,  and  the  di- 


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reetion  to  provide  additional  real  estate  in  the 
same  danse,  and  the  bequest  of  S2,656.(f9  in  the 
ninth  clause  of  said  will,  is  wholly  and  entirely 
void,  and  that  to  the  extent  of  said  beneficial  es- 
tates and  interests  in  said  purparts  of  real  es- 
tate and  said  sum  of  money  the  said  Henry  O. 
Geissler  died  intestate. 

3.  That  the  power  of  sale  by  the  said. will  of 
the  said  Henry  O.  Geissler  granted  to  the  execu- 
tor relating  to  the  aforesaid  several  purparts  is 
invalid  and  yiA(L 

4.  That  the  said  defendant  do  malce,  execute 
and  deliver  to  the  plaintiSs,  the  heirs  at  law  of 
the  said  Henry  C.  Geissler,  deceased,  proper 
and  sufficient  deeds,  conveyances,  and  quit- 
claims as  executor  and  trustee,  conveying  and 
quitclaiming  to  the  said  plaintiff  tho  legal  title 
to  the  said  several  purparts  of  real  estate  de- 
scribed and  specified  in  the  third  paragraph  of 
the  plaintiff's  bilL 

Argued  before  BKOWN,  C.  J.,  and  MBJS- 
TREZAT,  STEJWART,  MOSCHZISKEH,  and 
PBAZER,  JJ. 

Walter  B.  Craig,  of  Reading,  for  appellant 
Jefferson  Snyder  and  U.  Robert  Mays,  both 
of  Reading,  for  appellees. 

PER  CURIAM.  The  decree  in  this  case  Is 
affirmed,  at  the  costs  of  the  appellant,  on  the 
opinion  of  the  learned  court  below,  directing 
It  to  be  entered. 


(267  Pa.  341) 
REYNOLDSVILLE  WATER  CO.  v.  FAK- 

MERS'  &  MINERS'  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.    March  23, 

1917.) 

CoBPOBATioNS   ®=»479— Bonds— Trust    Deed 

— Delivery  or  Bonds— Liabilitt  for  Neo- 

LIOBNCB. 
The  trustee  under  a  mortgage  to  secure  a 
water  company's  bond  issue  providing  that  the 
bonds  be  executed  by  ita  president  and  secretary 
and  for  their  delivery  to  the  trustee,  to  be  cer- 
tified and  afterwards  returned  to  the  company's 
treasurer,  which  received  the  treasurer's  receipt 
for  certain  of  the  bonds,  together  with  the  bonds 
from  the  company's  presidentj  with  directions 
to  send  them  to  a  bank  for  delivery  to  him,  and 
which,  in  reliance  on  such  receipt,  sent  the 
bonds  to  such  bank,  from  which  the  president 
obtained  and  embezzled  them,  was  not  liable  to 
the  company  for  their  value. 

Appeal  from  Court  of  Common  Pleas,  Jef- 
ferson County. 

Trespass  by  the  Reynoldsvllle  Water  Com- 
pany against  the  Farmers'  ft  Miners'  Trust 
Company  for  alleged  negligent  disposal  of 
bonds.  From  a  Judgment  refusing  to  take  ott 
a  compulsory  nonsuit,  plaintiff  api>eal8.  Af- 
firmed. 

From  the  record  It  appeared  that  certain 
mortgage  bonds  of  the  Reynoldsvllle  Water 
Company  were  executed  In  Its  behalf  by  A. 
Grant  Richwlne,  as  president,  and  W.  Dale 
Shaffer,  as  secretary.  The  bonds  provided 
that  after  execution  by  the  president  and 
secretary,  they  should  be  sent  to  the  Farm- 
ers' &  Miners'  Trust  Company,  trustee,  for 
certification  by  It  and  that  they  should  then 
be  delivered  to  the  treasurer  of  the  water 
company.    After  their  execution  by  the  presi- 


dent and  secretaiy,  Blcbwlne  suggested  that 
Shatter,  as  treasurer,  send  a  receipt  along 
with  the  bonds,  which  were  to  be  forthwith 
certified  and  delivered.  Such  receipt  was 
prepared,  and,  together  with  the  bonds,  was 
handed  by  Shaffer  to  Richwlne,  who  sent 
both  receipt  and.  bonds  to.  the  trust  company, 
with  directions  to  send  the  bonds,  when  certi- 
fied, to  a  certain  bank  for  delivery  by  said 
bank  to  Richwlne.  The  trust  company,  rely- 
ing up<xi  the  treasurer's  receipt,  sent  the 
bonds  to  the  bank  as  directed,  and  Richwlne 
subsequently  procured  same  and  embezzled 
them.  The  lower  court  entered  a  compulsory 
nonsuit,  which  It  subsequently  refused  to 
take  off.    Plaintiff  appealed. 

Argued  before  BROWN,  a  J.,  and  MES- 
TBEZAT,  POTTER,  FRAZER,  and  WAMv- 
ING,  JJ. 

John  W.  Reed,  of  BrookvlUe,  and  H.  H. 
Mercer,  of  Mechanlcsburg,  for  appellant 
Cadmus  Z.  Gordon  and  Raymond  B.  Brown, 
both  of  Brookvllle,  and  I/ex  N.  Mltdiell,  of 
Punxsutawney,  for  appellee. 

PER  CURIAM.  The  following  Is  the  first 
condition  of  the  mortgage  under  which  the 
bonds  in  controversy  were  Issued: 

"The  bonds  to  be  issued  under  and  secnred 
thereby  shall  be  executed  on  behalf  of  the  Rey- 
noldsvllle Water  Company,  by  its  president  and 
secretary,  and  shall  be  delivered  to  the  trustee, 
to  be  certified  by  it,  and  of  the  bonds  so  ezecot- 
ed  and  delivered  the  trustee  shall  forthwith  cer- 
tify and  deliver  to  the  treasurer  of  the  company 
ninotv  thousand  ($00,000)  dollars  worth  of 
said  bonds,  to  be  used  for  property,  real  and 
personal,  already  acquired  by  it,  and  ten  thou- 
sand ($10,000)  dollars  for  making  additional  im- 
provements and  extensions,  to  the  plant  of  said 
company." 

On  November  17,  1913,  the  treasurer  of 
the  water  company  acknowledged  In  writing: 

"The  receipt  of  $100,000  of  the  Reynoldsvllle 
Water  Company  bonds ;  $90,000  for  the  proper- 
ty, real  and  personal,  already  acquired  by  it, 
and  $10,000  for  the  making  of  additional  im- 
provements and  extensions  to  the  plant  of  said 
company." 

Upon  the  delivery  of  this  receipt  by  the 
president  of  the  water  company  to  the  Farm- 
ers' &  Miners'  Trust  (Company,  the  appellee, 
it  was  fully  warranted  In  what  It  subsequent- 
ly did  with  the  bonds,  and  the  judgment  of 
the  court  below  Is  affirmed,  on  the  following 
from  Its  <vlnl<Hi  refusing  to  take  off  the  non- 
suit: 

"The  receipt,  prepared  and  signed  by  W.  Dale 
Shaffer,  treasurer,  and  sent  to  the  trust  com- 
pany, defendant  acknowledging  the  receipt  of 
$1<X),<X)0  of  tbe  Reynoldsville  Water  Company 
bonds,  was  clearly  designed  and  intended  by  the 
treasurer  of  the  company  to  l>e  his  official  and 
final  aclmowledgment  of  the  receipt  of  that 
amount  of  the  bonds  from  the  trust  company, 
after  it  shonld  have  certified  them,  and  was  so 
regarded  by  the  trust  company.  Sliaffer  sent  no 
request  and  gave  no  direction,  in  connection 
with  the  receipt  to  the  latter.  •  •  •  The 
man  who  sent  the  receipt  to  the  defendant  and 
requested  that  the  bonds  be  sent  to  him,  and  who 
got  them,  was  the  president  of  the  water  com- 


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IN  BE  CROZER'S  ESTA13: 


801 


pany,  and  also  a  director.  These  men  (the 
president  and  treaanrer),  chosen  b;  its  stock- 
holders, were  the  ezecutive  officers  of  the  water 
companr,  who  for  it  executed  the  bonds  and 
mortgage,  and  who  at  the  time  of  this  transac- 
tion were  deemed  worthy  of  trust  and  confidence, 
and  unsuspected  of  any  motive  but  the  interest 
of  the  company,  at  whose  bead  they  stood." 
Judgment  affirmed. 


(2S7  Pa.  za) 

In  re  CROZER'S  ESTATR 

(Supreme  Court  of  Pennsylrania.     March  19, 
1917.) 

1.  Wiixs  ^»523— CoNSTKUonoN  of  Leoact— 
Repbbskrtatiok  . 

Where  testator,  dying  without  issue  after  the 
death  of  two  of  his  brothers,  one  of  whom  left 
issue,  gave  an  undivided  part  of  certain  furni- 
ture to  bis  three  brothers  and  two  sisters,  and 
the  residue  of  his  estate  to  his  two  sisters  and 
three  brothers  absolutely,  the  gift  was  not  to  a 
class,  but  to  individuals,  and  the  issue  of  the  de- 
ceased brother  were  entitled  to  his  share. 

2.  WlI.I-8  «=»441— CONSTBDCTION— INTBNT. 

The  testator's  intention  as  gathered  from  the 
language  of  his  vriU  with  the  aid  of  his  sur- 
rounding circumstances  is  the  object  sought  in 
the  construction  of  a  wUL 
8.  WiLUB  «=»449— CoNsiBnonoN— Atoidakcb 
OF  Intestact. 

A  construction  resulting  in  Intestacy  aa  to 
the  residue  of  an  estate  is  most  strongly  to  be 
avoided. 

4.  WllXS    «=>437— CONSTBUCTIOW— IKTEHTION 

—Tact 
The  testator's  legal  intention  is  to  be  gath- 
ered from  the  state  <n  the  law  at  the  date  jf  the 
will,  regardless  of  what  it  was  at  the  date  of 
his  death. 

5.  Wnx8  «=98!i&— Lapsed  Lboaoiss— Rk-er- 
ACTMBNT  or  Statute. 

Act  July  12,  1897  (P.  L.  256),  relating  to 
lapsed  legacies,  does  not  repeal,  but  re-enacts. 
Act  May  6,  1844  (P.  L.  565)  §  2,  providing  that 
no  legacy  to  a  brother  or  sister  by  one  not  leav- 
ing any  lineal  descendants  shall  lapse  by  rea- 
son of  the  decease  of  the  legatee  in  the  testator's 
lifetime,  if  the  legatee  leaves  issue  surviving  the 
testator. 

Appeal  from  Orphans'  Court,  Delaware 
County. 

George  K  (Trozer  and  others  appeal  from 
a  decree  dismissing  exceptions  to  the  report 
of  Josiab  Smith,  Esq.,  auditor,  In  the  estate 
of  Robert  U.  Crozer,  deceased.  Appeals  dis- 
missed, and  decree  affirmed. 

The  following  Is  the  opinion  of  Johnson, 
P.  J.,  dismissing  the  exceptions: 

The  testator,  by  his  will,  after  giving  sundry 
legacies  to  his  three  brothers  and  two  sisters, 
nairing  them,  and  after  bequeathing  in  the  fol- 
lowing words :  "I  give  and  bequeath  to  my 
three  brothers  and  two  sisters,  my  one-sixth  nn- 
divided  part  of  the  furniture,  etc.,  at  my  home 
in  Upland,  which  I  received  from  my  mother's 
estate,  and  which  I  own  in  common  with  them" 
—disposes  of  the  residue  of  his  estate  in  the 
following  words:  "All  the  rest,  residue  and 
remainder  of  my  estate,  I  give  and  bequeath  to 
my  two  sisters  and  three  brothers  absolutely." 
The  question  has  arisen  in  the  distribution  of 
the  estate  whether  by  these  clauses  the  gifts 
are  to  testator's  three  brothers  and  two  sisters 
individually  or  as  a  class.  The  auditor  has  de- 
cided  that  the  gifts   are  to  them   individually 


and  made  distribution  accordingly,  and  excep- 
tions have  been  filed  to  this  conclusion. 

If  these  gifts  are  to  the  three  brothers  and 
two  dsters  as  a  class,  the  auditor's  distribution 
is  wrong.  If,  on  the  oUier  hand,  these  gifts 
are  to  them  as  individuals,  there  arises  a  sec- 
ond question:  Was  the  second  section  of  the 
act  of  May  6,  1844  (P.  L.  565),  repealed  by 
the  act  of  July  12,  1897  (P.  L.  2o6 ;  Stewart's 
Purdon,  vol.  4,  page  5143,  pL  22)?  If  it  was 
so  repealed,  then  the  auditor's  distribution  is 
wrong;  otherwise,  it  is  correct.  To  sustain  the 
auditor  requires  an  affirmative  answer  to  the 
following  two  propositions:  (1)  The  gifts  to 
the  three  hrothers  and  two  sisters  of  the  tes- 
tator were  to  them  as  individuals.  (2)  The  act 
of  1897  did  not  repeal  the  act  of  1844.  The 
auditor  has  addressed  to  the  solution  of  these 
questions  a  great  deal  of  painstaking  labor  and 
research,  and  fortified  his  conclusion  by  an  ex- 
haustive citation  of  the  authorities.  Agreeing 
as  we  do  with  his  conclusions,  it  is  unnecessary 
for  us  to  review  his  report  with  any  great 
degree  of  detail. 

[i-4]  The  object  to  he  obtained  is  the  ascer- 
tainment of  the  intent  of  the  testator,  to  l>e 
gathered  from  the  language  of  his  will,  with  the 
aid  of  his  surrounding  circumstances.  He  was 
a  very  wealthy  man,  and  a  bachelor.  He  exe- 
cuted his  will  in  1888,  with  a  codicil  in  1893, 
and  died  in  1914,  73  years  of  age.  At  the  date 
of  his  will  his  parents  were  dead.  At  that  time, 
and  also  at  the  date  of  the  codicil,  he  had  three 
living  brothers  and  two  sisters.  One  of  these 
brothers,  J.  Lewis  Crozer,  died  in  1897,  with- 
out children.  Another  brother,  Samuel  A.  Croz- 
er, died  in  1910,  leaving  children.  His  other 
brother,  George  K.  Crozer,  and  his  two  sisters, 
Elizabeth  C.  Griffith  and  Emma  C.  Knowles, 
survived  him.  By  his  will  he  gave  legacies  of 
110,000  each  to  his  brothers,  Samuel  A.  and 
J.  Lewis,  naming  them,  and  then,  conscious  that 
he  was  about  to  give  munificent  legacies  to  his 
sister,  Elizabeth  C,  and  her  children,  and  to 
his  brother,  George  K.,  and  his  children,  and  to 
his  sister,  Emma  C,  and  her  children,  he  takes 
occasion  to  say  in  his  will  that  these  legacies 
of  $10,000  are  comparatively  small,  that  is  to 
say,  compared  with  those  about  to  be  given  to 
the  others,  and  that  they  are  made  thus  com- 
paratively small  for  reasons  which  he  states, 
and  then,  to  avoid  an  inference  that  the  distinc- 
tion is  attributable  to  any  difference  in  regard 
for  them,  he  says:  "My  love  for  all  my  broth- 
ers and  sisters  is  strong  and  deep."  He  then 
gives  to  his  sister,  Elizabeth  C,  naming  her, 
and  her  children,  legacies  amounting  to  $250,- 
000;  also  to  his  brother,  George  K.,  naming  him 
and  his  children,  a  like  sum  ;  and  also  to  his  sis- 
ter, Emma  C,  naming  her  and  her  cbildren,  a 
like  sum.  Then  after  a  number  of  legacies 
come  these  two  clauses,  which  have  been  refer- 
red to,  and  which  produce  this  controversy: 

"Item.  I  give  and  bequeath  to  my  three  broth- 
ers and  two  sisters  my  one-sixth  undivided  part 
of  the  furniture,  etc.,  at  my  home  at  Upland, 
which  I  received  from  my  mother's  estate  and 
which  I  own  in  common  with  them." 

"Item.  All  the  rest,  residue  and  remainder  of 
my  estate  I  give  and  bequeath  to  my  two  sis- 
ters and  three  brothers  absolutely." 

Did  the  testator  intend  these  gifts  to  the 
donees  to  be  to  them  as  a  class  or  as  individ- 
uals? It  would  scarcely  occur  to  the  average 
mind  that  these  gifts  were  otherwise  than  the 
ordinary  gifts  to  them  aa  individuals.  What 
did  the  testator  intend  in  1888,  when  the  will 
was  executed?  Did  he  have  them  in  mind  as  a 
class?  If  be  had  in  mind  to  treat  them  as  a 
class,  then  he  intended  that  only  those  who 
survived  him  should  take,  and  the  cbildren  of 
those  who  predeceased  him  should  be  excluded; 
but  he  said  that  his  love  for  all  of  them  was 
deep    and    strong.    Moreover,   if   a   class   were 


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althou^  It  may  seem  improliable  aad  be 
strongly  contradicted. 

That  part  of  the  charge  embraced  In  the 
eighth  assigiinient  of  error,  referring  to  the 
question  of  damages,  is  subject  to  criticism. 
The  thought  in  the  mind  of  the  court  does  not 
seem  to  find  expression  In  the  language  as 
reported.  Howerer,  that  and  any  Inadequacy 
in  the  charge  can  be  corrected  on  another 
trial.  The  assignments  of  error,  except  as 
herein  stated,  are  not  sustained. 

The  judgment  Is  reversed,  and  a  Teolre 
facias  de  novo  awarded. 


067  Pa.  43» 

GRIFb^N  «t  at  ▼.  DBLAWAKS  &  HUD- 
SON CO. 

(Supreme   Court  «t  PennBylvania.     April   10, 
1917.) 

1.  TBBaPASs     4s»20(l)  —  Tkespass     Qxtabe 
Olkobvu  Fbboit— Possession. 

At  common  law  an  action  of  trespass  quare 
dausum  fregit  cannot  be  maintained  by  one  nei- 
ther in  actual  nor  constructive  possession  of  the 
land. 

2.  Tbebpass  «s>18  —  Obounds  or  Aonoif  — 
Statute. 

Practice  Act  Mav  25,  1887,  {  3  (P.  L.  271), 
vororidinf:  that  certain  actions  ex  delicto  should 
be  brought  under  the  one  name  of  trespass,  did 
not  change  the  fundamental  grounds  upon  which 
the  right  to  recover  rests,  or  give  an  action  of 
trespass  where  no  action  for  the  same  cause 
would  arise  at  common  law. 
8.  Minks  and  Minkralb  €=355(8)— Advebsb 
Claim  to  Minerals— Evidkncb. 

An  adverse  claim  to  the  minerals  in  free- 
hold lands  must  be  distinctly  established  against 
the  owner  of  the  surface,  which  may  be  done  by 
documents  showine  that  the  minerals  had  been 
conveyed,  ezoepted,  or  reserved,  so  as  to  vest 
in  the  claimant. 

4.  Mines  and  Minkrals  <S=>51(1)— Trespass 
roB  Removal  or  Coal— Possession. 

An  action  of  trespass  for  the  unlawful  min- 
ing of  coal  from  plaintiff's  land  could  not  be 
maintained,  where  plaintiff  had  never  been  in 
actual  or  constructive  possession  of  the  surface, 
which  was  in  the  possession  of  parties  holding 
adversely,  and  under  whose  lease  defendant  had 
removed  the  underlying  coal,  as  plaintiffs,  never 
having  severed  the  coal,  were  not  in  constructive 
possession  thereof. 

Appeal  from  Court  of  Common  Pleas, 
Lackawanna  County. 

Trespaas  by  TOdmund  R.  Orlffin  and  others 
against  the  Delaware  &  Hudson  Company  for 
removing  coal  from  land  claimed  by  plain- 
tiffs. From  an  order  dismissing  exceptions 
to  the  report  and  supplemental  report  of  a 
referee,  defendant  appeals.  Beversed,  and 
Judgment  entered  for  defendant 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  VRAZWR,  and  WAI/- 
LING,  JJ. 

James  H.  Torrey  and  Charles  H.  Welles, 
both  of  Scranton,  and  Walter  C.  Noyes,  of 
New  York  City,  for  appellant.  Thos.  F. 
Wells,  M.  W.  Stephens,  and  F.  I*.  Hitchcock, 
all  of  Scranton,  for  appellees. 


POTTBK,  J.  This  was  an  action  of  tres- 
pass brought  by  Eldmund  R.  Orlffin  et  aL 
against  the  Delaware  &  Hudson  Company, 
to  recover  damages  for  the  entry  by  defend- 
ant on  land  of  which  plaintiffs  claimed  ovm- 
ershlp,  and  for  mining  coal  and  taking  It 
from  such  land.  It  Is  averred  in  plaintiff's 
statement  of  claim  that  100,000  tons  of  coal 
were  nnlawfolly  removed  by  defendant  be- 
tween the  year  1867  and  the  date  of  suit 
The  pleas  were  not  guilty  and  the  statute  of 
limitations. 

By  agreement  of  the  parties  the  case  was 
referred  to  Hon.  R.  W.  Arcbbald,  who,  after 
a  fnll  hearing,  filed  a  report,  with  findings 
of  fact  and  law.  In  which  he  held  that  the 
plaintiffs  never  had  actual  or  constructlTe 
possession  of  the  coal  in  controversy,  and 
were  not,  therefore,  In  a  position  to  maintain 
this  action,  and  that  Judgment  should  be  en- 
tered for  defendant.  Exceptions  were  filed  to 
the  report,  whereupon  the  case  was  evened, 
additional  testimony  was  taken,  and  the 
findings  reconsidered  by  the  referee.  He 
then  filed  a  supplemental  report,  with  new 
findings  of  fact  and  law,  in  which  he  reversed 
his  former  ruling,  and  directed  that  judg- 
ment be  entered  In  favor  of  plaintiffs  fbr 
the  sum  of  141,025.  Exceptions  were  filed 
by  both  parties  to  the  suit,  which  were  dis- 
missed by  the  court,  and  judgment  was  en- 
tered in  accordance  with  the  recommenda- 
tion of  the  referee  in  tats  supplemental  re- 
port.   Defendant  has  appealed. 

According  to  the  referee's  findings,  the 
material  facts  were  substantially  as  follows: 
The  coal  in  controversy  underlay  a  tract  of 
land  in  Providence  township,  Lackawanna 
(formerly  Luzerne)  county,  which  is  now 
part  of  the  city  of  Scranton,  and  comprised 
3  acres  and  60  perches  of  ground.  This  land 
was  Included  in  a  larger  tract  for  which  a 
patent  was  granted,  on  June  15,  1828,  by  the 
commonwealth  to  Thomas  Griffin.  Prior  to 
that  date,  <m  February  10,  1828,  Isaac  Grif- 
fin, a  son  of  the  subsequent  patentee,  had 
made  and  delivered  to  Silas  B.  Robinson  a 
general  warranty  deed  for  a  portion  of  the 
land  patented  by  his  father,  and  Robinson 
took  possession  under  such  deed.  A  year 
later,  on  February  6,  1S29,  Thomas  GrifBn 
made  and  delivered  to  Isaac  Griffin  a  deed 
for  the  same  land  that  Isaac  had  already 
conveyed  to  Bobinson.  The  deed  of  Isaac 
Griffin  to  Bobinson  was  identical  with  that 
of  Thomas  Griffin  to  Isaac  Griffin,  vrlth  the 
exception  of  the  length  of  the  north  line  of 
the  tract,  and  it  is  from  that  difference  that 
the  controversy  in  this  case  arises.  The  land 
conveyed  by  Isaac  Griffin  to  Robinson  be- 
gan at  the  Lackawanna  river,  and  extended 
thence  northwest  for  a  distance  of  246  perch- 
es, while  In  the  deed  from  Thomas  Griffin  to 
Isaac  Griffin  the  tract  was  described  as  be- 
ginning at  the  same  point,  and  extending  by 
the  same  course  a  distance  of  264^  perches. 


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GRIFFIN  V.  DELAWARE  A  HUDSON  CO. 


751 


being  18^  perches  longer  than  the  corre- 
sponding line  In  the  deed  from  Isaac  Orlffln 
to  Robinson.  ^Fhe  dUTerence  appears  clearly 
from  tbe  diagrams  in  the  referee's  supple- 
mental report.  The  courses  and  distances 
on  the  west  and  south  were  the  same  in  both 
deeds,  but  in  neither  oae  was  the  distance 
given  on  the  next  to  the  final  course,  which 
terminated  at  the  Lackawanna  river. 

Plaintln's  are  the  heirs  at  law  of  Isaac 
Griffin,  and  claim  to  be  the  owners  of  the 
westernmost  end  of  the  tract,  which  they  al- 
lege was  not  included  in  the  deed  of  their 
ancestor  to  Silas  B.  Robinson.  The  portion 
which  they  claim,  extends  from  a  point  dis- 
tant 246  perches  from  the  river  to  a  point 
264%  perches  distant  therefrom,  being  18% 
by  30  perches  in  area,  containing,  as  stated, 
3  acres  and  56  perches.  In  the  eighteenth 
finding  of  fact  the  referee  found  that: 

"Silas  B.  Robincon,  after  the  conveyance  to 
him  by  Isaac  Giiflin  and  wife,  entered  into  the 
actual  possession  of  the  52  acres  and  58  perches, 
with  the  allowance  of  3  per  cent.,  and  he  and 
those  claiming  under  him  in  line  of  title  have 
fenced  and  lived  upon  and  occupied  the  said 
land,  using  it  for  farming  purposes,  cultivating 
the  same,  pasturinf;  cattle  thereon,  cutting  tim- 
ber therefrom,  mining  and  removing  coal,  plot- 
ted it  into  building  lots,  sold  building  lots  cov- 
ering a  portion  of  the  land  in  dispute,  and  par- 
ties purchasing  the  said  lots  have  built  hooses 
and  other  buildings  thereon,  and  are  now  in 
the  actual,  open,  notorious  possession  of  the 
same." 

In  bla  fltBt  retort  the  referee  lonnd  as 
a  fact: 

""nie  plaintiffs  have  never  been  in  the  actual 
possession  of  the  land  in  dispute  and  have  not 
severed  the  coal  from  the  surface.  The  Robin- 
sons and  Griffins  and  Von  Storcbs  have  been  in 
the  actual  possession  of  the  whole  tract  of  land 
nmning  from  the  Lackawanna  river  back  201% 
rods  to  a  point  about  30  feet  beyond  the-Keyser 
Valley  Branch,  and  to  the  corner  of  what  is 
known  as  the  Philip  C.  Griffin  tract,  and,  being 
so  in  possession,  leased  the  coal  to  the  Dela- 
ware &  Hudson  Canal  Company  in  1867,  and 
the  possession  of  the  Grifiins  and  the  Delaware 
&  Hudson  Company  lias  continued  from  that 
time  to  the  present,  and  has  been  open,  notori- 
ona,  and  visible." 

In  the  supplemental  report  this  finding  was 
modified,  so  as  to  exclude  a  small  portion  of 
the  piece  occupied .  by  a  railroad.  The  de- 
fendant company,  nnder  a  claim  of  owner- 
ship through  leases  given  to  them  by  the 
anccessors  in  title  of  Silas  B.  Robinson,  has 
Diined  and  removed  the  coal  from  the  tract 
claimed  by  plaintlSs,  and  it  was  to  recover 
damages  for  this  alleged  trespass  that  the 
present  salt  was  brought 

Four  grounds  of  defense  were  set  up:  (1) 
A  valid  paper  title  to  the  coal  in  question. 
(2)  Title  by  adverse  possession.  (3)  That 
plaintiffs  were  never  in  possession  of  the 
locus  in  qno,  and  therefore  were  not  entitled 
to  maintain  an  action  of  trespass  quare 
clausum  f regit  for  the  removal  of  the  coal. 
<4)  That  any  right  claimed  by  plaintiffs  was 
barred  by  the  statute  of  limitations.  Upon 
the  third  qnestion,  the  right  of  plalntifCs 


to  maintain  the  action,  'the  referee  reversed 
himself.    In  his  original  report  he  said : 

"On  the  whole  case,  therefore,  whatever  the 
state  of  the  title,  the  plaintiffs,  as  I  view  it,  are 
not  in  a  position  to  maintain  the  action,  never 
having  had  actual  or  constructive  possession 
of  the  coal  in  controversy.  Tliis  is  decisive  of 
the  case,  and  judgment  must  therefore  be  en- 
tered for  the  defendant." 

But  in  his  supplemental  report  the  referee 
reached  the  conclusion  that  plaintiffs  had 
constructive  possession  of  the  coal,  what- 
ever may  have  been  the  situation  as  to  the 
surface,  and  that  therefore  they  might 
maintain  their  action. 

[1]  It  is  conceded  that  plaintiffs  were 
never  In  actual  physical  possession  of  the 
tract  of  land  here  in  question.  The  referee 
afflrmed,  without  qualification,  defendant's 
seventh,  tbirty-flrst,  and  thirty-seventh  re- 
quests for  findings  of  fact,  which  were  to 
that  effect,  and  no  exception  was  taken  to 
such  affirmance.  It  is  admitted  that  the 
common-law  action  of  trespass  quare  clausum 
fregit  could  not  be  maintained  by  one  not 
in  possession  of  the  land.  But  it  is  contend- 
ed that  this  rule  was  changed  by  the  practice 
act  of  May  25,  1887  (P.  L.  271),  by  which  all 
distinctions  between  actions  of  trespass  are 
said  to  have  been  abolished. 

[2]  In  Welsfleld  v.  Beale,  231  Pa.  39,  42,  79 
Atl.  878,  879,  we  said: 

"Under  the  act  of  May  26,  1887  (P.  I*  271, 
(  3),  all  actions  ex  delicto,  whether  trespass, 
trover,  or  trespass  on  the  case,  are  now  brought 
under  the  one  name  of  trespass.  The  distinc- 
tion, therefore,  between  trespass  quare  clausum 
fregit,  in  which  actual  or  constructive  posses- 
sion in  the  plaintiff  waa  necessary,  and  trespass 
on  the  case,  in  which  it  was  not,  is  no  Iwger  of 
importance." 

That  related,  however,  only  to  the  form  of 
procedure.  It  was  Intended  'to  i)oint  out 
that,  under  the  statute,  recovery  might  be 
had  ia  an  action  of  trespass^  where  formerly 
upon  the  facts  the  only  remedy  would  have 
been  in  an  action  upon  the  case.  But'  the 
fundamental  requirements,,  upon,  which  the 
right  to  recover  rests,  have  not  been  changed. 
The  act  of  18S7  "was  intended  to  dispense 
with  focmality,  hot  to  insist  on  matters  of 
aubstance,  indispensable  to  an  intelligent 
and  Just  Judgment  between .  the  parties." 
Wlnklehhike  t.  Van  Dyke,  161  Pa.  6,  28  AtL 
937.    . 

In  the  case  at  bar  plaintifts  claimed  di- 
rect  damages  for  an  tmlawfid  and  forcible 
entry  upon  their  premises  and  removal  of 
the  coal  therefrom.  In  their  statement  they 
aver  that  they  were  in  possession  of  the 
premises,  and  that  defendant  did  "with  force 
and  arms  enter  upon  and  into  the  said 
parcel  of  land  beneath  the  surface  thereof 
from  its  own  land  adjoining,  and  did  mine 
a  large  quantity  of  coal  therefrom  and  con- 
vert it  to  its  own  use.  If  plaintiffs  can  re- 
co\'er  at  all,  it  must  be  in  an  action  in  the 
nature  of  quare  clausum  fregit.  The  au- 
thorities are  deer  that,  in  order  to  maintain 


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such  an  action,  a  plaintiff  mnst  bare  been 
In  possession,  eitber  actual  or  constructive, 
at  tbe  time  the  trespass  was  conuuitted. 
Gfreber  v.  Kleckner,  2  Pa.  289;  King  t.  Bak- 
er, 25  Pa.  186;  Collins  v.  Beatty,  148  Pa. 
65,  23  Atl.  882;  Wilkinson  v.  Connell,  158 
Pa.  126,  27  Atl.  870;  Bnsch  v.  Calhoun,  14 
Pa.  Super.  Ct  578;  Vandersllce  t.  Donner, 
26  Pa.  Super.  Ct  319.  Tbe  referee  so  found 
In  his  third  finding  of  law.  He  further 
found  as  a  fact  that  there  never  had  been 
actual  possession  by  plaintiffs,  or  any  of 
tbem.  He  was  also  of  opinion  that  plaintiffs 
bad  not  shown  that  tbey  were  at  any.  time 
in  constructive  possession  of  the  surface. 
But  in  his  supplemental  report  be  held  that 
there  was  constructive  possession  of  the 
coal,  and  on  that  ground  be  awarded  damn 
ages  to  plaintiffs.  He  based  this  conclusion 
on  tbe  ground  that  there  had  been  a  sever- 
ance Af  the  coal  from  the  surface.  He  said : 
"When  the  coal  is  severed  from  surface,  and 
a  separate  estate  created  in  it,  there  is  no  good 
reason  why,  aa  to  such  coal,  ownership  of  the 
title  should  not  draw  to  it  the  constructive  pos- 
session, so  as  to  protect  the  real  owner  against 
any  one  trespassing  and  mining  from  it." 

He  had  previously  said : 

"It  may  be  that  constructive  possession  of 
the  coal,  as  distinct  from  the  surface,  is  not  per- 
mitted where  coal  and  sutface  remain  under  one 
title,  and  the  surface  is  in  the  actual  possession 
of  another." 

In  this  connection  the  referee  in  bis  first 
report  said,  most  convincingly: 

"While  by  the  leases  in  evidence  there  is  a 
severance  of  the  coal  for  mining  purposes,  it 
is  not  ab8<^ute  or  complete;  a  reversionary  in- 
terest, as  noted  above,  being  retained  in  the 
lessors,  contingent  on  the  termination  of  the 
leases  for  anv  reason.  But  more  than  that: 
Having  regard  to  the  effect  given  to  the  sever- 
ance, in  the  rule  Invoked,  the  purpose  being  to 
protect  the  mineral  estate  from  an  adverse  pos- 
session of  the  surface,  that  which  was  intended 
to  protect  that  estate  cannot  be  made  the  basis 
of  encumbering  it  It  is  in  fact  no  concern  of 
the  plaintiffs  as  to  what  has  been  done  with 
the  coal,  or  how  it  has  been  treated  by  others. 
Whatever  has  happened  to  it  is  not  of  their 
doing,  and  neither  adds  to  nor  detracts  from 
their  rights  with  respect  to  it,  nor  can  tliey  predi- 
cate anything  upon  it." 

Tlie  only  severance  was  tinder  the  leases 
trma  the  holders  of  the  Robinson  title  to  de- 
fendant These  leases  are  not  recognized  by 
plaintiffs,  as  affecting  their  rights  in  any 
way,  and  they  cannot  be  used  to  aid  them 
in  establishing  constructive  possession  of  the 
coal.  We  can  see  nothing  in  the  facts  to 
Ratify  the  referee  In  changing  bis  conclu- 
sion in  this  reject  Had  the  plaintiffs  or 
their  ancestors  severed  the  coal  from  the 
durf&oe,  a  different  situation  would  be  pre- 
sented. 

[t]  Tbe  only  case  cited  by  counsel  for  ap- 
pellees upon  this  point  Is  Plummer  r.  Hill- 
side Coal  dc  Iron  Co.,  160  Pa.  483,  28  AtL 
863,  and  there  tbe  severance  was  made  by 
the  undisputed  owner  of  tbe  land  from 
whom  both  parties  claimed  title.  In  the 
present  case  there  was  nothing  to  show  any 
enti7  by  plaintiffs  into  possession  of  tbe 


subsurface  estate,  nie  correct  principle  is 
stated  In  Bainbrldge  on  the  Law  of  Mines 
&.  Minerals  (4th  Bd.)  28,  where  it  is  said: 
"In  all  freehold  lands  an  adverse  claim  to  the 
mineral  must  be  distinctly  established  againit 
tbe  owner  of  the  surface.  This  may  I>e  effected 
by  the  production  of  documents  snowing  th&t 
the  minerals  have  been  conveyed,  excepted  or 
reserved,  so  aa  to  have  become  vested  io  the 
claimant" 

[4]  Nothing  of  the  kind  was  shown  to 
the  case  at  bar,  and,  as  these  plaintiffs  weie 
in  neither  actual  nor  constructive  posses- 
sion of  the  surface,  tbey  cannot  be  hdd 
to  have  been  in  constructive  possession  of 
the  coal.  The  alleged  severance  was  hot  by 
any  act  of  theirs,  but  the  leases  were  made 
by  persons  who,  according  to  plaintiffs'  con- 
tention, had  no  title  to  either  estate,  and  no 
power  to  sever  them.  If  plaintiffs  should 
concede  that  these  leases  effected  a  valid 
severance,  it  would  follow  that  defendant 
thereby  acquired  the  right  to  mine  the  coal, 
and  this  action  of  trespass  could  not  be 
maintained. 

We  think  the  referee  very  properly  deter- 
mined, in  his  first  report,  that,  as  plaintiffs 
bad  neither  actual  nor  constructive  XKtsses- 
sion  of  tbe  coal  in  dispute,  tbey  were  not 
in  a  position  to  maintain  this  action.  At 
this  la  decisive  of  the  case,  it  becomes  un- 
necessary to  consider  other  questions  raised. 
It  is,  however,  by  no  means  clear  that,  under 
a  fair  and  reasonable  oonstruction  of  tli» 
deed  from  Isaac  OrifBn  to  Silas  B.  Robinson, 
the  defendant  and  Its  predecessors  wer» 
without  a  paper  title  to  tbe  premises  in  dis- 
pute. It  requires  a  strained  Inference,  to 
say  tbe  least,  to  support  the  conclusion  that 
Isaac  Griffin,  in  the  year  1828^  Intended  to 
retain  a  small  piece  of  Isolated  ground,  ISVi 
by  80  perches,  at  the  rear  of  the  tract  be 
conveyed  to  Robinson.  All  the  facts  point 
strongly  to  the  conclusion  that  all  parties 
interested  believed  that  Robinson  acquired 
all  of  Isaac  Grtflln's  interest  In  that  particu- 
lar piece  of  land  In  1828,  and  that  they  all 
acted  in  accordance  with  that  belief  from 
that  time  on.  All  the  lines  and  angles  and 
distances  tn  the  deed  from  Thomas  to  Isaac 
Griffin,  and  in  that  from  the  latter  to  Robln- 
s<»i,  are  Identical,  except  that  of  the  norther- 
ly line ;  and  taking  Into  consideration  tbe 
monuments  upon  the  groimd,  and  the  acre- 
age intended  to  be  conveyed,  the  longer  line, 
running  204%  perdies  from  the  river,  seems 
to  be  Imperatively  required  to  meet  the  con- 
ditions. No  reasonable  explanation  was  of- 
fered for  the  discrepancy  in  tbe  length  of 
the  northerly  line  as  it  appears  in  the  deed 
made  by  Isaac  Griffin  to  Robinson.  Possibly 
the  length  of  the  line  was  first  noted  by  the 
surveyor  in  figures,  which  afterwards  were 
accidentally  transposed,  so  that  264  perches 
appeared  as  246  perches.  Conjecture  as  to 
this,  however.  Is  useless. 

But,  leaving  out  of  consideration  the  ques- 
tion of  paper  title,  and  without  reference 
to  tbe  additional  dalm  that  defendant  and 


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SHEAFEB  T.  WOOSSIDB 


763 


its  predeceeaora  had  acquired  titte  to  tlie 
coal  by  possessioii,  and  to  the  farther  dalm 
tliat  the  actlOTi  was  barred  by  the  statute  of 
llmltatloiis,  it  is  quite  sufficient  to  rest  the 
case  upon  the  conduslon  first  reached  by 
the  referee  that,  in  the  absence  of  actual 
or  constructiTe  possession  of  the  coal,  plain- 
tiffs bad  no  standing  to  maintain  this  ac- 
tion. 

The  Judgment  is  reversed,  and  is  here  en- 
tered for  defendant 


(2»7  Fa.  27S) 

SHEAFER  et  al.  v.  WOODSIDB  et  aL 

(Supreme  Court  of   Pennsylvania.     March  19, 

1917.) 

1.  Patmekt    «=366<:9  —  Pbesttmption    awd 

BUBDKN   OT  PEOOF. 

The  rtde  that  after  the  lapse  of  20  years 
debts  by  specialty  are  presumed  to  be  paid 
does  not  bar  the  debt,  but  is  merely  a  rule  of 
evidence  affecting  the  burden  of  t>root,  and  with- 
in that  time  the  burden  of  proving  payment  is 
on  the  debtor,  and  after  that  time  it  is  upon  the 
creditor.  The  presumption  is  rebuttable  by  any 
competent  evidence  tending  to  show  that  the 
debt  was  not  in  fact  paid,  though  it  should  be 
clear  and  convincing,  especially  where  suit  is 
sot  brought  until  after  the  debtor's  death. 

2.  MoBTOAGis  @=»319(S)  —  Payment  —  Sum- 
CiENOT  OP  Evidence. 

Bvidence  upon  a  scire  fadaa  issued  in  Au- 
gust, 1915,  upon  a  mortgage  executed  in  1876, 
wherein  the  administrator  of  the  estate  of  the 
last  surviving  mortgagor  pleaded  payment,  and 
relied  upon  the  presumption  oi  payment  aris- 
ing from  the  lapse  of  more  than  20  years,  Keld 
sufficient  to  overcome  the  presumption  of  pay- 
ment, so  as  to  make  payment  a  question  for  the 
Jury. 

Appeal  from  Court  of  Common  Fleas, 
Schuylkill  County. 

Sdre  fiidas  sur  mortgage  by  A.  W.  Sheafer 
and  another,  surviving  executors  of  the  estate 
of  Peter  W.  Sbeafer,  deceased,  against  A.  B. 
Woodside  and  others.  Judgment  for  defend- 
ants non  obstante  veredicto,  and  plaintiffs 
appeal.  Reversed,  and  record  remitted,  with 
direction  to  enter  Judgment  on  the  verdict. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  PtXTTEB,  FBAZEB,  and  WAU/- 

mo,  JJ, 

John  O.  JMmscm,  of  Philadelphia,  and 
Woddbnry  &  Woodbury,  of  Pottsvllle,  for  ap- 
pellants. John  Robert  Jones,  of  Pottsvllle, 
for  appelleeB. 

FRAZER,  J.  In  1876  Mrs.  A.  B.  Wood- 
side  and  her  three  daughters,  Virginia,  Qer- 
aldine,  and  Fannie,  executed  a  bond  and 
mortgage  to  Peter  W.  Sbeafer,  to  secnre  the 
payment  of  |2,660  in  two  years,  covering 
property  owned  by  them  in  the  borough  of 
Pottsvllle.  The  mortgage  was  duly  recorded 
in  the  office  for  recording  deeds  in  Schuylkill 
county  on  June  24,  1876,  in  Mortgage  Book 
1  A  H,  page  395.  Peter  W.  Sbeafer,  the  mort- 
gagee, died  in  1891,  leaving  a  wUl  in  whidi 
Arthur  W.  Sheafer  and  Henry  W.  Sheefer 
were  named  as  executors.    At  the  time  of  his 


death  the  bond  and  mortgage  above  ref  erreid 
to  were  found  among  his  papers;  the  bond 
having  indorsed  therewi.  In  the  writing  of 
Peter  W.  Sheafer,  a  payment  of  $56,  under 
date  of  December  22,  1877.  There  is  no  ev- 
idence that  'demand  for  payment  of  the  in- 
debtedness secured  by  the  mortgage  was 
made  untU  after  the  death  of  the  last  sur- 
vivor of  the  mortgagors,  when  the  executors 
of  the  estate  of  Peter  W.  Sheafer,  on  August 
25,  1915,  Issued  a  scire  facias,  to  which  the 
administrator  of  the  estate  of  Geraldine 
Woodsi'de,  the  last  survivor,  pleaded  payment, 
and,  In  support  of  this  plea,  at  the  trial  relied 
upon  the  presumption  of  payment  by  reason 
of  lapse  of  time,  and  presented  a  i>olnt  for 
binding  Instructions  for  defendant  The  trial 
Judge  reserved  the  point,  anfd  submitted  to 
the  Jury  the  facts  presented  by  plaintiff  to 
rebut  presumption  of  payment.  A  verdict 
was  rendered  in  plainUfra  favor  for  the 
amount  of  the  mortgage,  with  interest,  aggre- 
gating, after  deducting  the  payment  indorsed 
on  the  bon'd,  the  sum  of  $8,727.87.  Judgment 
was  subsequently  entered  ia  ftivor  of  defend- 
ant non  obstante  veredicto,  whereupon  plain- 
tiff appealed. 

A  period  of  36  years  elapsed  from  the  ma- 
turity of  the  mortgage  until  the  beginning  of 
foreclosure  proceedings.  Dr.  O'Hara,  a  prac- 
ticing physidan  in  Pottsvllle  for  20  years, 
called  by  plaintiff,  who  had  been  a  family 
physidan  of  the  Wooldsides,  although  only 
Fannie  and  Geraldine  were  living  when  he 
first  attended  them,  testified  that  la  1914, 
shortly  after  the  death  of  Fannie,  Geraldine, 
the  survivor,  spoke  to  him  in  reference  to 
the  mortgage  due  the  Sbeafer  estate,  and, 
while  the  witness  was  unable  to  recall  the 
exact  language  of  the  conversation,  he  stated : 

"She  told  me  she  did  not  know  what  would 
happen  to  them,  or  what  would  happen  to  her, 
or  would  become  of  her ;  I  do  not  exactly  know 
the  verbatim  statement,  but  she  wept,  and  so 
forth,  and  she  said  that  the  Sheafers  held  a 
mortgage,  or  that  she  waa  in  a  great  debt  to 
them,  in  other  words." 

He  testifleJd  further  she  told  him : 
"She  did  not  know  what  would  become  of 
them  now;  she  did  not  know  whether  Sheafers 
will  push  the  mortgage  or  not,  and  she  was  in 
a  very  nervous  state,  not  knowing  what  would 
bectxne  of  her." 

He  also  testified  the  family  had  been  in 
straitened  financial  circumstances,  and  had 
received  assistance  from  neighbors,  and  fur- 
ther that  Geraldine  requested  him  to  speak 
to  the  Sheafers  about  the  mortgage,  which  he 
subsequently  dfd  by  informing  Lesley  Sheafs 
er  that — 

"one  of  those  Miss  Woodsides  ia  worried  to 
death  about  what  will  become  of  her  now,  since 
the  other  sister  is  gone;  she  did  not  know  what 
will  become  of  the  place  now." 

Lesley  Sheafer,  called  as  witness  by  plain- 
tiff, corroborated  Dr.  O'Hara's  testimony  as 
to  the  conversation  in  relation  to  the  Wood- 
side  mortgage,  and  testified  to  bringing  the 


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101  ATLANTIC  REPORTER 


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subject  to  the  «.ttentlon  of  A.  W.  Sheafer, 
one  of  the  ezecutora  of  the  Sheafer  estate, 
who,  following  that  conversation,  on  Decem- 
ber 22,  1914,  wrote  Miss  WoodUAde,  as  fed- 
lows: 

"Dedr  Miss  Woodside:  Information  has  come 
to  us  through  Dr.  O'Hara  that  you  are  worried 
in  regarl  to  the  mortgage  which  we  hold  on 
your  property  nt  219  South  Center  street.  We 
therefore  take  this  opportunity  of  assuring  yon 
that  we  have  no  intention  of  in  any  wa^  en- 
deavoring to  collect  this  mortgage  or  any  inter- 
est thereon  during  your  lifetime,  or  so  long  as 
it  remains  your  property.  We  trust,  therefore, 
that  you  will  not  allow  this  matter  to  trouble 
you  in  the  least.  Extending  to  you  our  sym- 
pathy in  your  recent  bereavement,  we  are, 
yours  very  truly.  A-  W.  Sheafer,  for  the  Ex- 
ecutors of  Estate  of  P.  W.  Sheafer,  Deceased." 

A  copy  of  tbis  letter  was  also  sent  to  Dr. 
O'Hara,  who  snbseqnently  saw  Miss  Wood- 
sfde,  and  was  informed  by  ber  of  baring  re- 
ceived the  letter  from  Mr.  Sheafer,  and  that 
it  gave  ber  much  relief. 

[1]  The  above  is  the  evideince  relied  upon 
by  plaintiff  to  rebut  the  presumption  of  pay- 
ment arising  from  lapse  of  time.  The  rule 
that  after  the  lapse  of  20  years  debts  of  ev- 
ery kind  are  presumed  to  be  paid  is  a  rule 
at  convenience  an'd  policy,  resulting  from  a 
necessary  regard  for  tbe  peace  and  security 
of  society,  and  also  for  the  debtor,  who  should 
not  be  called  upon  to  defend  stale  claims  at 
a  time  when  witnesses  are  dead,  and  papers 
lost  or  destroyed.  Foulk  v.  Brown,  2  Watts, 
209;  Eby  v.  Eby'a  Assignee,  5  Pa.  435.  This 
presumption  does  not  bar  tbe  debt,  howevef. 
Dnlike  the  statute  of  limitations,  it  is  merely 
a  rule  of  evidence  affecting  tbe  burtlen  of 
proof,  and  no  new  promise  la  required  as  tbe 
basis  of  an  action.  Eby  ▼.  Shy's  Assignee, 
supra.  Within  20  years  tbe  burden  of  prov- 
ing payment  Is  on  the  debtor;  after  that 
time  it  shifts  to  tbe  creditor.  Reed  t.  Re6d, 
46  Pa.  239.  To  rebut  tbe  presumption,  any 
competent  evidence  tending  to  show  the  debt 
Is  not  In  fact  paid  will  be  received.  Although 
It  need  not  be  of  tbe  same  quality  as  required 
to  remove  the  bar  of  tbe  statute  of  limlta- 
tlona  (Gregory  ▼.  Commonwealth,  121  Pa.  611, 
15  Atl.  452,  6  Am.  St  Itep.  804 ;  Devereuz's 
EsUte,  184  Pa.  429,  39  Atl.  225),  it  should, 
however,  be  clear  and  convincing,  espedally 
where  suit  la  not  brought  until  after  the 
death  of  tbe  debtor,  as  in  tbe  present  case 
(FWeUty  TiUe  dc  Trust  Co.  v.  Chapman,  226 
Pa.  312,  75  AtL  42^.  In  Foulk  v.  Brown,  2 
Watts,  209,  tbe  rule  was  stated  as  follows : 

"Within  the  20  years,  the  onus  of  proving  pay- 
ment lies  on  the  defendant;  after  that  time  it 
devolves  on  the  plaintiff  to  show  the  contrary, 
by  such  facts  and  circumstances  as  will  satisfy 
the  minds  of  the  jury  that  there  were  other  rea- 
sons for  the  delay  of  the  prosecution  of  the  claim 
than  the  alleged  payment.  And  if  these  facts 
are  sufficient  satisfactorily  to  account  for  the 
delay,  then  the  presumption  of  payment,  not  be- 
ing necessary  to  account  for  it,  does  not  arise. 
Slighter  circumstances  are  sufficient  to  repel 
the  presumption  than  are  required  to  take  the 
case  out  of  the  statute  of  limitations — the  latter 
being  a  positive  enactment,  ol  the  Xicgislature  i 


the  former  merely  an  Inferenee  oa  which  legal 
belief  is  founded." 

In  Reed  r.  Reed,  46  Pa.  238,  242,  It  was 
said: 

"The  presumption  is  rebutted,  or,  to  speak 
more  aocurately,  does  not  arise  where  there  a 
affirmative  proof,  beyond  that  furnished  by  the 
specialty  itself,  that  tbe  debt  has  not  been  ^aid, 
or  where  there  are  circumstances  that  sufficient- 
ly account  for  the  delay  of  tbe  creditor." 

[2]  Whether  tbe  proof  Is  ample  to  rebut 
the  presumption  of  payment  must  necessarily 
depend  on  tbe  particular  circumstnaces  of 
each  case,  and  it  is  primarily  for  tbe  court 
to  decide  wbetber  tbe  facts.  If  true,  are  ade- 
quate for  the  purpose  for  which  offered,  and 
whether  tbe  facts  relied  upon  are  true  is  a 
question  for  the  Jury.  Fidelity  Title  4  Trust 
Co.  V.  Chapman,  supra.  In  Gregory  v.  Com- 
monwealth, supra,  tbe  plaintiff,  to  rebut  the 
presumption  of  payment,  relied  upon  ac- 
knowledgments by  the  debtor,  made  to  third 
persons  at  various  times,  to  tbe  effect  that 
there  was  something  between  him  and  plain- 
tiff which  "bad  never  been  thoroughly  set- 
tled." It  appeared,  however,  that  tbe  refer- 
ence might  have  been  to  the  settlement  of 
certain  other  matters  concerning  an  estate  in 
which  the  debtor  was  interested,  and  it  was 
held  tbe  testimony  was  too  uncertain  and 
eq'Ulvocal  in  meaning  to  rebut  the  presump- 
tion of  paj'ment ;  the  court  saying: 

"Any  competent  evidence  which  tends  to  show 
that  the  debt  is  in  fact  unpaid  is  admissiUe  for 
that  purpose.  The  evidence  may  consist  of  tbe 
defendant's  admission  made  to  the  creditor  him- 
self (Eby  V.  Eby's  Assignee,  5  Pa.  435),  or  to 
his  agent,  or  even  to  a  stranger  (Morrison  v. 
Funk,  23  Pa.  421 ;  Reed  v.  Reed,  46  Pa.  239)  J 
but  an  admission  will  not  be  as  readily  implied 
from  language  casually  addressed  to  a  stranger, 
as  when  addressed  to  the  creditor  in  reply  to 
demand  for  a  debt  (Bentley's  App.,  99  Pa.  50O). 
It  is  of  no  consequence  that  the  admissioD  of 
nonpayment  is  accompanied  by  refusal  to  pay; 
the  action  is  not  founded  on  a  promise,  but  on 
tbe  original  indebtedness;  the  question,  as 
against  the  presumption,  is  whether  or  not  the 
debt  is  in  fact  unpaid," 

In  Runner's  Appeal,  121.  Pa.  649,  15  AtL 
647,  statements  made  by  tbe  debtor  of  an  In- 
tention to  pay  were  held  sufficient  for  tbe 
purpose  of  rebutting  the  presumption  of  pay- 
ment. In  Smith  V.  Schoenberger,  176  Pa.  %, 
84  AtL  864,  dedaratlOQS  by  defendant  to  the 
effect  that  the  debt  was  not  paid,  made  in 
the  presence  of  plaintiff,  was  held  enough  to 
take  tbe  case  to  the  Jury.  In  White  v.  White, 
200  Pa.  565,  50  AtL  157,  an  admission  by  the 
debtor,  in  tbe  presence  of  a  witness,  that  he 
had  no  money  to  pay  the  interest  on  the  debt 
in  question,  was  held  ample  to  overcome  the 
presumption  of  payment.  In  O'Hara  v.  Oorr, 
210  Pa.  341,  69  Atl.  1009,  It  was  held  that  the 
case  was  for  the  Jury,  where  witnesses  for 
the  plaintiff  testified  that  the  deceased  mort- 
gagor stated  he  had  purchased  the  mortgaged 
premises,  but  could  not  pay  the  mortgage, 
and  would  have  to  let  the  property  go.  It 
has  also  been  held  that  proof  of  the  Inability 
of  tbe  debtor  to  pay  during  the  whole  period 


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6CHMITT  T.  CITY  OF  CARBONDAL.E 


755 


of  the  existence  of  tbe  debt  Is  sndi  drcnm- 
stance  as  would  explain  tbe  delay,  and  pre- 
vent the  presumption  of  payment  arising. 
For  instance,  in  Taylor  ▼.  Megargee,  2  Pa. 
225,  226,  It  was  said  that  mere  poverty,  or 
insolvency  alone,  was  Insufficient  to  over- 
tlirow  the  presumption  of  payment,  arising 
from  lapse  of  time,  "unless  It  be  such  as  to 
have  created  an  abiding  inability  to  pay  dur- 
ing all  the  time";  and  In  Devereux's  Estate, 
EiDpra,  it  was  sald: 

"The  Bbilit?  of  the  obligor  to  pay  and  the 
pressing  need  of  the  obligee  for  money  have 
been  recognized  u  circumstances  which  aid  the 

g resumption  of  payment.  Hughes  v.  Hughes, 
i  Pa.  240.  On  the  other  hand,  it  was  held  in 
Tilghmau  v.  Fisher,  9  Watts,  441,  that  one  of 
the  intervening  circumstances  wliich  may  rebut 
the  presumption  is  the  inability  of  the  debtor 
to  pay  within  20  years,  and  proof  of  a  con- 
tinued inability  to  pay  was  recognized  in  Tay- 
lor V.  Megargee,  2  Pa.  225,  as  sufficient  to  rebut 
the  presumptitm.  There  are  convincing  reasons 
for  the  rulmg  that  proof  of  the  insolvency  of 
the  debtor  alone  will  not  rebut  the  presumption. 
An  insolvent  may  be  possessed  of  property  or  be 
in  receipt  of  an  income,  and  have  the  means 
of  payment;    but  proof  of  positive  inability  to 

Eay  is  in  effect  that  payment  could  not  have 
een  made." 

In  the  present  case  we  have  proof  of  a 
long-contlnned  laabllity  of  the  debtors  to  pay; 
that  the  surviving  debtor  recognized  tbe  ex- 
istence of  the  indebtedness  In  1914,  stating  In 
effect  her  Inability  to  pay,  and  requesting  tbe 
witness  to  see  the  creditor  and  ask  Indul- 
gence; that  the  witness  compiled  with  tbe 
wishes  of  the  mortgagor,  and,  as  a  result  of 
the  Interview,  the  debtor  received  the  letter 
In  evidence.  Informing  her  that  no  steps  to 
enforce  payment  of  the  indebtedness  would 
be  talten  during  her  lifetime,  or  so  long  as 
tbe  property  remained  In  her  possession. 
This  evidence  tlie  jury  accepted  as  true,  and 
was  sufficient,  under  the  decisions,  to  over- 
come the  presumption  of  payment  arising 
from  lapse  of  time. 

The  Judgment  is  reversed,  and  the  record 
remitted,  with  direction  that  Judgment  be  en- 
tered on  the  verdict. 


(aw  Pa.  tfi) 

SOHMITT  V.  cm  OF  GABBONDALB  et  aL 

(Supreme   Court   of   Pennsylvania.     April  16, 
1917.) 

1.  Evinxncx  ^=9372(11)  —  Aitoient  Dootn 
MKirre— Map. 

A  map  found  In  the  office  of  a  corporation, 
which  had  conveyed  land  shown  thereon,  was 
admissible  as  an  ancient  document,  where  it 
was  more  than  60  years  old,  and  appeared  to  be 
genuine,  and  had  been  acted  upon. 

2.  AovBRSK  Possession  9=38(1)  —  Encboach- 
MXNT  on  Public  Pabk— Eftect. 

A  citizen  acquires  no  rights  as  against  the 
public  by  tbe  mamtenance  of  a  fence  in  a  public 
park,  as  the  public's  rights  are  not  lost  by  en- 
croachment, however  long  continued. 

3.  Dedication  «=>50  —  Public  Pabe  —  Ex- 

TKRT. 

A  city's  acceptance  and  use  of  a  paric  em- 
braces all  the  land  dedicated  for  that  purpose. 


'  although  some  parts  thereof  along  the  border 
lines  may  not  have  been  actually  used  therefor. 
4.  Estoppel  ®=>68(5)  —  Bminbmt  Douain  — 
Public  Park. 
Where  a  building  has  been  erected  on  land 
dedicated  as  a  public  park,  an  ordinance  pro- 
viding for  tbe  condemnation  of  the  land  occu- 
pied by  the  building  does  not  estop  the  munici- 
pality from  claiming  the  property,  especially 
where  no  viewers  were  appointed,  and  nothing 
further  was  done  in  reference  to  the  ordinance. 

Appeal  from  Court  of  Common  Pleas, 
Lackawanna  County. 

Bill  in  equity  for  an  Injunction  by  W.  H. 
Arthur  Schmitt  against  the  City  of  Carbon- 
dale  and  others.  F'rom  a  decree  on  final 
hearing,  dismisaing  the  bill,  plaintiff  appeals. 
Affirmed. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, STEWART,  FBAZER,  and  WAI,- 
UNG,  JJ. 

A.  A.  Vosburg,  of  Scranton,  and  J.  B.  Jen- 
kins, of  Carbondale,  for  appellant  J.  E. 
Brennan,  of  Oarbondale,  for  appellees. 

WAIiLING,  J.  This  suit  In  equity  In- 
volves the  question  of  the  location  of  the  line 
of  a  public  highway.  Prior  to  1843,  the 
Delaware  &  Hudson  Canal  Company  was  the 
owner  of  a  tract  of  land  in  the  village  (now 
dty)  of  Carbondale,  and  in  plotting  the  same 
a  triangulai*  piece  of  land  was  left  open  for 
public  use  as  a  park,  and  known  as  "the  Pa- 
rade."' It  is  shown,  with  well -defined  bound- 
aries, on  an  ancient  map  in  the  possession  of 
the  company.  Iiots  appear  on  the  map, 
which  were  conveyed  l)ounded  by  the  Parade. 
For  nearly  50  years,  prior  to  1890,  the  Pa- 
rade was  used  generally  by  the  public  as  a 
passageway  and  for  all  purposes  of  a  puit^ 
He  conunon.  Meantime  streets  bad  been 
<^ened  on  tbe  borders  of  the  Parade;  Main 
street  on  the  west.  Sixth  avmue  on  the 
south,  and  Park  Place  <m  the  northeast  In 
or  about  the  year  last  mentioned  the  elty 
constructed  an  Iron  fence  around  that  part  of 
the  Parade  inclosed  by  these  streets,  and 
therein  was  placed  a  m<mument  and  a  foun- 
tain ;  and,  at  about  the  same  time,  the  cart- 
way In  Sixth  avenue  was  paved.  Oiurch 
street  extends  In  a  northerly  and  southerly 
direction,  and  Is  a  short  distance  east  of  the 
intersection  of  Park  Place  and  Sixth  avenue. 
It  Is  about  465  feet  from  Main  and  Chur«^ 
streets,  and  the  land  facing  on  the  aonth 
side  of  the  Parade  (now  Sixth  avaiue)  was 
subdivided  Into  lots  as  a  part  of  the  origi- 
nal idot 

In  1843  the  company  sold  one  of  the  lots 
facing  65  feet  on  the  Parade  to  James  Clark- 
son,  a  part  of  which  by  sundry  conveyances 
Is  now  owned  by  plaintiff,  and  thereon  is  a 
two-story  frame  building,  which  stands  about 
one  foot  back  from  tbe  south  llue  of  the 
Parade  as  originally  dedicated.  However, 
from  the  time  of  or  shortly  after  the  pur- 
chase by  Clarkson  down  to  this  time  the 
owners  of  the  lot  have  had  adverse  posses- 


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slon  of  a  strip  of  land  some  6  feet  In  width 
extending  In  front  of  the  lot  and  within  the 
lines  of  the  Parade  as  dedicated.  This  strip 
of  land  was  inclosed  for  many  years  as  part 
of  the  lot  by  a  fence,  and  near  the  west  end 
thereof  was  formerly  a  well,  and  toward  the 
east  end  for  about  30  years  last  past  a  porch 
stood  thereon  in  front  of  the  buUdlng,  and 
vome  of  the  strip  of  land  has  been  used  as 
a  lawn  and  flower  bed.  The  owners  of  some 
of  the  other  lots  have  also  made  encroach- 
ments upon  the  south  side  of  the  Parade. 
The  original  deed  to  Clorkson  describes  his 
lot  as  being  130  feet  In  depth,  from  the  Pa- 
rade south,  which  it  is  exclusive  of  said  5 
feet.  While  there  la  some  controversy,  yet, 
taking  the  case  as  a  whole,  it  fully  warrants 
the  finding  that  plaintiffs  paper  title  does 
not  Include  the  diluted  land;  and  It  ap- 
pears with  equal  deamess  that  plaintiff  and 
those  through  whom  he  claims  title  have  had 
exclusive  possession  thereof  for  much  more 
than  21  years. 

In  1897  the  dty  passed  an  ordinance  pro- 
viding, as  we  imderstand  the  facts,  for  the 
condemnation,  inter  alia,  of  the  land  here  at 
Issue,  and  a  report  was  made  that  an  agree- 
ment with  the  property  owners  as  to  the 
damages  and  benefits  could  not  be  bad ;  but 
no  viewers  were  appointed,  and  nothing  fur- 
ther done  with  reference  thereto.  In  1915 
plaintiff,  in  remodeling  bis  building,  was  pro- 
ceeding to  add  a  new  store  front  thereto, 
which  would  occupy  a  portion  of  said  5  feet, 
when  be  was  prevented  by  the  officials  of  the 
dty,  and  filed  this  bill  to  restrain  their  in- 
terference. After  a  full  bearing  the  court 
below  entered  a  final  decree  dismissing  the 
Ull,  from  which  plaintiff  took  this  ai^eaL 

[1]  The  record  seems  free  from  error. 
The  map  in  the  office  of  the  Delaware  & 
Hudson  Canal  Ckimpany  was  found  in  the 
pr(H)er  custody,  was  shown  to  be  more  than  30 
years  old,  was  to  all  appearances  genuine, 
had  been  acted  upon,  and  was  competent  as 
an  andent  document  Commonwealth  v.  Al- 
burger,  1  Whart.  469;  Huffman  &  Foreman 
V.  McCrea,  66  Pa.  96 ;  Smucker  v.  Penna.  R. 
a.  Co.,  188  Pa.  40,  41  AtL  457.  And  see  Bar- 
nett  T.  Yeadon  Borough,  37  Pa.  Super.  Ot. 
97. 

[2]  Plalntifrs  claim  by  adverse  possession 
would  be  well  founded  as  against  private 
parties,  but  cannot  prevail  against  the  pub- 
lic, whose  rights  are  not  lost  by  encroach- 
ment, however  long  continued.  Common- 
wealth V.  Moorehead,  118  Pa.  344,  12  Atl. 
424,  4  Am.  St  Rep.  599 ;  McGuire  v.  Wllkes- 
Barre,  36  Pa.  Super.  Ct  418. 

[3]  It  scarcely  requires  the  dtatlon  of  au- 
thorities to  support  the  proposition  that  a 
dtlzen  acquires  no  rights  as  against  the  pub- 
lic by  the  maintenance  of  a  fence  or  building 
in  a  highway,  and  the  same  rule  applies 
to  a  public  park.  The  acceptance  and  use 
by  the  public  of  the  Parade  in  question  as  a 


park  embraced  all  the  land  dedicated  for 
that  purpose,  although  some  parts  th«%of 
along  the  border  lines  may  not  have  been 
actually  used  as  sudL  It  is  like  a  dedicated 
street,  the  acceptance  of  which  constitutes 
It  of  the  full  width,  although  only  the  trav- 
eled portion  may  be  used  by  the  public. 
See  State  Road,  236  Pa.  141.  84  Atl.  686. 
The  disputed  land  being  in  the  Parade,  the 
fact  that  It  is  not  within  Sixth  avenne  as 
opened  on  the  ground  Is  not  controlling. 

As  plaintiff's  lot  in  the  original  deed  was 
bounded  on  the  north  by  the  Parade,  he  Is 
not  helped  by  the  fact  of  a  surplus  in  that 
blodt  If  he  Is  entitled  to  that,  or  any  part 
of  it,  he  must  find  it  within  the  lines  of 
the  block,  and  not  in  the  public  park  or 
street. 

[4]  The  passage  of  the  ordinance  does 
not  estop  the  dty  from  daiming  the  land  in 
question ;  and  the  fact  that  the  proceedings 
thereunder  were  apparently  abandoned  would 
suggest  that  they  may  bare  been  started  nn- 
der  a  misapprehension.  The  facts  found  by 
the  learned  chancellor  are  in  accordance 
with  the  evidence  and  his  legal  conduslons 
seem  to  be  entirely  accurate. 

The  assignments  of  error  are  overruled, 
and  the  decree  Is  afllrmed,  at  the  cost  of  the 
appellant. 

(ST  Pa.  sss) 
EWALT  V.  DAVENHILIi  et  aL 

(Supreme  Court   of   Pennsylvania.     April  16, 
1917.) 

1.  Trusts  «=s9  —  Spendthbift  Trust  — Cbs- 

TUIS. 

A  spendthrift  trust  may  be  created  as  well 
for  a  woman  as  for  a  man. 

2.  Trusts  «=»9— Separate  TJsk  Trusts— Va- 

LIDITT. 

A  testator,  dying  in  1S46  devi>ed  land  to  his 
son  J.  for  life,  with  remainder  in  trust  for  J.'s 
children  and  their  heirs,  and  gave  J.  power  to 
revoke  such  trnsta  by  will  and  to  create  other 
trusts;  and  J.,  dying  in  1870,  by  will  revoked  all 
such  trusts,  and  devised  the  estate  in  triut  to 
pay  an  annuity  to  his  wife  and  the  balance  of 
the  income  to  his  son  W.,  bom  in  the  lifetime 
of  his  grandfather,  and  on  hia  death  the  bal- 
ance in  trust  for  his  children  in  such  shares  as 
they  would  be  entitled  to  if  be  had  died  intes- 
tate, and  gave  W.  power  to  appoint  the  sbarta 
of  his  children  in  trust  tor-  the  sole  aad  sepa- 
rate use  of  such  children  and  to  the  issue  of  any 
deceased  child;  and  W.,  dying  in  1877,  direct- 
ed that  the  share  of  each  of  his  three  daughters 
be  held  in  trust  for  them  until  they  reached  2h 
and  created  sole  and  separate  use  trusts  and 
spendthrift  trusts  for  them,  and  directed  that 
on  the  death  of  any  daughter  her  share  should 
be  paid  to  her  issue  during  the  life  of  the  sat- 
viving  daughters,  and  if  there  was  no  issue  then 
to  the  survivors  for  life,  and  on  the  death  of 
the  last  survivor  then  to  their  issue.  Bold,  that 
the  sole  and  separate  use  trusts  were  void,  be- 
cause the  daughters  were  not  married  or  in 'con- 
templation of  marriage  at  the  time  of  the  crea- 
tion of  such  trusts. 

3.  Powers  <s=36(1)  —  Consteuction  —  Cbea- 
TioN  OF  Spendthrift  Tbubis. 

Such  spendthrift  trusts  tor  the  danghtera 
of  the  last  testator  were  witliin  the  scope  of  the 
power  of  appointment  conferred  upon  him  by 
the  will  of  his  deceased  father. 


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EWAL.T  T.  DAVSNHIIilt 


757 


4.  Wills  «=>634(9)— Vestkd  Iittebbsts— Tdoc 
OF  Vestino. 
The  interests  of  such  last  testator's  three 
daughters  vested  upon  the  death  of  their  grand- 
father, the  creator  of  the  power. 
6.  Pkrpetdities     «=»4(15)—Remaindeb8— Va- 
lidity. 
Such  gift  to  the  issue  of  the  daughters  of 
the  last  testator  violated  the  rule  against  per- 
petuities. 

6.  Pebpetuities  «=>4(22)— Pabtiai.  Irtaudi- 
TT— Severable  Gift. 

The  gifts  for  the  lives  of  such  last  testa- 
tor's daughters  were  severable,  and  were  not  af- 
fected by  the  invalidity  of  a  gift  of  the  remain- 
ders to  their  issue. 

7.  Tetjsts  ^=)52— Partial  Invalidity— Gift 

OVE»— EFrECT. 

Where  an  active  trust  is  created  to  pay  the 
income  to  one  for  life,  it  will  not  be  defeated 
because  of  the  failure  or  invalidity  of  the  gift 
over  of  the  corpus  of  the  estate. 

8.  Pebpetcities  ®=»4(3)— Natttbe  of  Rule. 

The  rule  against  perpetuities  is  directed 
against  future  contingent  estates,  and  has  no 
reference  to  vested  estates. 

Appeal  from  Coart  of  Common  Pleas,  Pbll- 
adelpbla  County. 

BUI  In  equity  for  partition  by  Heniy  C. 
BwBlt  against  Catharine  M.  DarenhiU  and 
otbera.  Bin  dismissed  on  denmrrer,  and 
plaintiff  appeals.    Decree  affirmed. 

Argued  before  BROWN,  O.  J.,  and  STEJW- 
ART,  MOSGHZISKKR,  FBAZBR,  and  WAIr 
IiI^U,  J  J. 

M.  T.  McManua,  of  Philadelphia,  for  appel- 
lant Henry  Preston  Krdman,  of  Phlladel- 
pbia,  for  appellees. 

WaJjUNQ,  J.   This  case  Involves  the  ques- 
tion as  to  whether  certain  real  estate  situate 
on  the  southeast  comer  of  Seventh  and  Chest- 
nut streets,  Philadelphia,  is  now  so  held  In 
trust  as  to  prevent  Its  partition.    This  land 
was  formerly  owned  by  William  Swalm,  Sr., 
who  died  in  1846,  and  by  his  last  will  devised 
the  proper^  in  trust  for  his  son  James  for 
life,  and  then  in  trust  for  the  latter's  cbU> 
dren  and  their  heirs,  giving  James  power, 
however,  to  revoke  by  will  all  trusts  and  in- 
terests expressed  by  the  testator,  and  to  di- 
rect or  to  appoint  such  new  or  other  trusts 
with  respect  to  said  property  as  to  him  might 
seem   proper.     James  Swahn  died  In  1870, 
leaving  a  last  will  In  which  he  referred  to 
the  power  given  him  in  his  father's  will,  and 
In  execution  thereof  revoked  all  the  trusts 
and  Interests  so  created  by  his  father,  and 
devised  the  estate  In  trust  to  pay  an  annuity 
te  his  wife  for  life  and  balance  of  the  net  In- 
come to  his  son  William  Swalm,  Jr.,  free 
from  the  control  of  bis  creditors,  and  provid- 
ed, further,  that  after  the  son's  death  the 
proi)erty  should  be  held  "In  trust  for  the 
children  of  the  said  William  Swalm  and  the 
Issue  of  eadi  as  may  be  deceased,  In  such 
parts,  shares  and  proportions,  and  tor  such 
estates  as  they  would  be  entitled  to.  If  the 
said    WlUlam    Swalm   had  died   Intestate." 
William  Swalm,  Jr.,  was  then  given  the  pow- 


er by  will  to  appoint  the  shares  of  hla  chil- 
dren or  of  the  children  of  any  deceased  child 
to  trustees,  "In  trust  for  the  sole  and  8epa> 
rate  use  of  said  dilld  or  issue  of  said  de- 
ceased child,  and  under  such  limitations  and 
restrictions  as  In  his  discretion  he  may  deem 
best,  so  as  to  secure  the  same  to  the  said 
child  or  Issue  of  deceased  child,  for  bis,  her 
or  their  sole  and  separate  use,  maintenance 
and  enjoyment" 

WlUiam  Swalm,  Jr.,  died  In  1877,  testate, 
and  left  surviving  him  three  daught^s,  who 
at  the  time  of  the  execution  of  his  will  were 
minors,  unmarried,  and  not  In  contemplation 
of  marriage,  although  they  did  subsequently 
marry,  and  two  of  them  are  still  living. 
In  his  will,  William  Swalm,  Jr.,  pursuant 
to  the  power  vested  In  him  under  the  will  of 
Ws  father,  directed  that  the  share  of  each 
of  his  children,  or  the  dilldren  of  any  de- 
ceased child,  be  held  In  trust  ft>r  them  until 
they  reached  the  age  of  21  years,  "and  as 
and  after  each  of  my  said  children  respective- 
ly arrive  at  the  age  of  twenty-one  years,  to 
pay  her  said  part  and  share  of  the  said  rents, 
Issues,  profits.  Income,  and  dividends  to  her 
directly  whether  she  be  covert  or  sole,  dur- 
ing all  the  period  of  her  natural  life,  for  her 
separate  use  and  benefit,  the  said  Income 
to  be  and  at  all  times  to  remain  free  and  ez> 
empt  from  the  power  and  control  of  any 
husband,  and  from  liabilities  for  any  debts 
or  engagements.  The  receipts  of  my  children 
for  such  payments  to  them,  whether  covert 
or  sole,  shall  be  deemed  and  taken  to  be  good 
and  sufficient  vouchers  and  acquittances  for 
the  said  trustees  or  either  of  them,  In  the 
settlement  of  their  accounts."  OThe  will  also 
provided  that.  In  the  event  of  the  death  of 
any  of  the  dilldren,  her  share  should  be 
paid  to  her  Issue  during  the  life  of  the  sur- 
viving children,  or  In  case  there  should  be 
no  Issue,  then  to  the  survivors  for  life,  and, 
upon  the  death  of  the  last  survivor  of  the 
children,  then  to  their  Issue,  or,  if  no  Issue, 
then  to  the  persons  who  would  be  entitled  un- 
der the  provisions  of  his  father's  wilL  Wil- 
liam Swalm,  Jr.,  was  born  before  the  death 
of  his  grandfather. 

Plaintiff  Is  the  owner  by  purchase  of  the 
Interest  of  one  of  the  daughters  of  William 
Swalm,  Jr.,  In  the  premises,  and  as  such 
filed  his  bill  for  partition  In  this  case;  and 
from  the  decree  of  the  court  below,  sustain- 
ing defendants'  demurrer  and  dismissing  the 
bin,  this  appeal  was  taken. 

The  action  of  the  court  below  was  based 
upon  the  construction  previously  placed  upon 
the  wills  In  question  by  the  orphans'  court  of 
said  county,  where  the  questions  were  ex- 
haustively and  ably  considered,  and  In  our 
opinion  correctly  decided.  The  trusts  creat- 
ed by  the  last  will  of  James  Swalm  were  un- 
questionably valid  as  a  due  execution  of  the 
power  contained  In  the  will  of  his  father, 
and  created  a  spendthrift  trust  for  the  life 


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101  ATLANTIC  REPORTBR 


(Pa. 


of  WilUam  Swalm,  Jr.,  wltb  remainder  over 
as  therein  provided.  The  real  question  Is  as 
to  the  effect  of  the  trust  provisions  In  the 
will  of  William  Swalm,  Jr.  So  far  as  making 
a  testamentary  disposition  <rf  the  property, 
James  Swalm  was  practically  the  ovmer  In 
fee;  and  the  testamentary  trusts  so  created 
and  powers  so  conferred  by  him  mnst  be 
given  effect. 

[1]  A  careful  reading  of  his  will  shows 
that  he  conferred  upon  WUIlam  Swsdm,  Jr., 
a  power  saflSclently  broad  to  enable  the  latter 
to  create  for  his  children  a  spendthrift  trust, 
as  well  as  a  separate  use  trust  True,  when 
the  will  of  James  Swalm  was  executed,  the 
children  of  William  Swalm,  Jr.,  consisted  of 
three  daughters,  yet  there  was  nothing  to 
Indicate  that  sons  might  not  thereafter  be 
bom  to  him.  The  words  of  the  will  above 
quoted,  empowering  his  son  William  by  his 
last  will  to  place  such  property  "in  trust  for 
the  sole  and  separate  use  of  said  child  or 
Issue  of  said  deceased  child,  and  under  such 
limitations  and  restrictions  as  In  his  discre- 
tion he  may  deem  best,  so  as  to  secure  the 
same  to  the  said  child  or  issue  of  deceased 
child,  for  his,  her,  or  their  sole  and  separate 
use,  maintenance  and  enjoyment,"  seem  to 
indicate  an  intent  to  authorize  the  creation 
of  both  separate  use  and  spendthrift  trusts. 
And  William  Swalm,  Jr.,  fully  executed  such 
power  In  his  last  will  as  alxive  quoted.  A 
spendthrift  trust  may  be  created  as  well  for 
a  woman  as  for  a  man.  Ashhurst's  Appeal, 
77  Pa.  464;  Hughes- Hallett  v.  Hughes-Hal- 
lett,  152  Pa.  690,  594,  20  Atl.  101. 

[2]  While  the  separate  use  trusts  were  In- 
effective, because  the  daughters  were  neither 
married  nor  in  contemplation  of  marriage, 
yet  by  said  wills  spendthrift  trusts  were 
created  In  favor  of  the  daughters  of  William 
Swalm,  Jr.,  and  valid  during  their  lives.  No 
set  form  of  words  is  necessary  to  the  creation 
of  a  spendthrift  trust  Graeff  v.  De  Turk, 
44  Pa.  527,  531;  Winthrop  C!o.  v.  Qinton, 
196  Pa.  472,  46  Atl.  435,  79  Am.  St  Rep.  729. 
See,  also,  Shower's  Estate,  211  Pa.  297,  60 
Aa  789;  Dunn  &  Riddle's  Appeal.  85  Pa. 
M. 

[3-1]  So  far  as  creating  a  trust  for  his  own 
children,  or  for  the  issue  of  any  of  his  chil- 
dren who  may  have  died  in  his  lifetime,  Wil- 
liam Swalm,  iJr.,  was  acting  within  the 
powers  conferred  upon  him  by  the  will  of 
his  father;  but  he  went  further,  and  attempt- 
ed to  continue  the  trust  for  various  uses  and 
purposes  f<Hr  an  Indefinite  time  beyond  the 
lives  In  being  at  his  death.  To  that  extent 
the  trust  so  created  in  invalid,  as  transgress- 
ing the  rule  against  perpetuities,  and  because 
no  such  power  was  vested  in  him  by  the  will 
of  James  Swalm.  However,  the  trust  so  des- 
ignated in  the  will  of  William  Swalm,  Jr.,  Is 
severable,  so  that  the  trust  created  for  his 
children  may  stand,  and  that  attempted  to 
be  created  for  others  beyond  fall.  Whit- 
man's Estate,  248  Pa.  285,  93  Atl.  1062. 


[7]  Where  an  active  trust  la  created  to 
pay  the  income  to  one  for  life,  it  will  not  be 
defeated  because  of  the  failure  or  invalidity 
of  the  gift  over  of  the  corpus  of  the  estate. 
On  the  death  of  WlUiam  Swaim,  Jr.,  the  title 
to  the  property  In  question  vested  in  Ills 
children  as  devisees  under  the  will  of  their 
grandfather,  James  Swaim,  but  their  enjOf- 
ment  thereof  was  subject  to  the  trust  created 
by  their  father's  will. 

[t]  The  rule  against  perpetuities  la  directed 
against  future  contingent  interests  and  baa 
no  reference  to  vested  estates:  Johnston's 
E^t,  186  Pa.  179.  39  Atl.  879.  64  Am.  St  Sep. 
621.  As  the  children's  estate  vested  on  th^r 
father's  death,  and  as  he  was  in  being  at  the 
death  of  William  Swalm,  Sr.,  so  far  as  con- 
cerns them  the  rule  against  perpetuities  has 
not  been  violated.  It  ds  the  vesting  of  tiie 
estate  within  the  life  in  being  and  21  yean 
thereafter  that  fixes  its  status.  Ttie  fact 
that  whoi  vested,  It  may  continue  beyond 
that  period,  is  not  materiaL  And  ctnnpntlDg 
the  time  from  the  creation  of  tlte  power  by 
the  will  of  James  Swalm,  It  is  still  more  ap- 
parent that  the  rule  has  not  been  transgress- 
ed. In  our  opinloa  the  will  of  WlUiam 
Swaim,  Jr.,  creates  an  active  trust  during 
the  lives  of  his  daughters,  and  the  real  estate 
embraced  therein  cannot  now  be  partitioned. 

The  assignment  of  error  is  overruled,  and 
the  decree  is  affirmed,  at  the  cost  of  appellant 


(£7  Fa.  «i) 

In  n  POTTER'S  ESTATE. 
Appeal  of  HALLSTKAD. 


(Supreme   Court  of  Pennsylvania. 
1917.) 


AprU  16, 


1.  Wills  4=9452— DisiNHBsrrAKOB—lNTBRT. 

Every  doubt  must  be  resolved  in  favor  of 
the  beir  at  law,  who  cannot  be  disinherited  ac- 
cept by  express  words  or  by  necessary  impli- 
cation. 
Z.  Wills  iH-.jIIO   Pbmumptiow  AoAinerr  In- 

nSSTAOT. 

The  presumption  is  that  a  testatrix  intad- 
ed  to  dispose  of  her  residuary  estate. 
8.  Wills  «=9509— Revocation  or  RxsiDCAKr 
Ola  U8B— ErrxcT. 

The  revocation  by  codicil  of  a  residuarj 
clause  in  favor  of  a  legatee,  effecting  a  gift  over 
to  the  next  of  kin  of  the  testatrix,  did  not  pre- 
clude such  lep;atee  from  sharing  in  the  gift  to 
the  next  of  km  of  which  he  was  one,  wbcia  he 
was  not  excluded  by  express  language  or  by 
necessary   implication. 

Appeal  from  Orphans'  Court,  Ladiawanna 
County. 

Appeal  by  Jesse  Wilkins  Hallstead,  by  his 
mother  and  next  friend,  Maud  Hallstead, 
from  a  decree  dismissing  exceptions  to  adju- 
dication in  the  estate  of  Lucy  A.  Potter,  de- 
ceased. Reversed,  and  record  remitted  to  the 
court  below  for  distribution  of  estate. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZER.  and  WAL- 
LING. JJ. 


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IN  KB  POTTER'S  ESTATB 


759 


J.  E.  Slcbler  and  H.  D.  Oarey,  both  of 
Scranton,  for  appellant.  W.  L.  Scbanz  and 
a.  B.  Gaxdnec.  botb  of  Scianton,  for  ap- 
pellee. 

WAIiLINO,  J.  Lacy  A.  Potter  made  her 
will  In  1906,  and  in  tbe  eighth  and  ninth 
paragraphs  gave  her  nephew,  Erwin  M.  Hall- 
stead,  certain  furniture  and  household  ef- 
fects, and  the  fourteenth  paragraph  thereof 
Is: 

"Fourteenth.  I  order  and  direct  that  after  the 
payment  of  all  debts,  legacies,  expense*  and 
charges  herein  mentioned,  the  money  arising 
from  my  estate  shall  be  safely  invested  by  my 
cxecator  in  bank  or  real  estate  securities,  and 
the  income  therefrom  paird  only  annually  to  my 
said  nephew,  Erwin  M.  Hallstead,  during  the 
term  of  his  natural  life.  Should  the  said  Kr- 
win  M.  Hallstead  die  leaving  children,  all  my 
remaining  estate  shall  go  to  said  children,  ab- 
solutely, share  and  share  alike,  and  should  he 
die  leaving  one  child  to  survive  him,  then  all 
the  said  estate  to  go  to  said  child  absolutely. 
But  shonld  the  said  Erwin  M.  Hallstead  die 
without  leaving  any  child  to  survive  him,  then 
all  niy  said  remaining  property,  and  estate  is 
to  go  to,  and  bo  divided  amongst  my  next  of 
kin  in  accordance  with  the  intestate  laws  of  the 
state  of  Pennsylvania,  in  same  manner  as  though 
I  had  not  made  any  will,  except  that  my  broth- 
er, C.  W.  Moredock,  shall  not  participate  in  said 
distribution,  or  receive  any  part  of  my  estate, 
as  I  feel  tiiat  I  have  already  helped  him  in 
-varioos  ways  to  as  mach  as  he  woom  be  fairly 
entitled  to  receive." 

Mr.  Hallstead  was  married  in  1907,  and 
died  in  1912,  leaving  a  posthumous  child. 
Jesse  WUklns  Hallstead.  the  appellant  In 
1914  Mrs.  Potter  made  a  codicil  to  said  will, 
which  Is,  inter  alia,  as  follows: 

"IFIrst.  My  nephew,  Erwin  M.  Hallstead,  hav- 
ing died  since  said  will  was  executed,  I  hereby 
revoke  all  portions  of  the  eighth,  ninth  and  four- 
teenth paragraphs'  of  said  will,  by  which  any 
property,  or  the  nse  thereof  was  given  or  be- 

Sneathed  to  said  Erwin  M.  Uallstead,  or  to  his 
bOdren  or  child  should  any  survive  him.  •  •   • 
"Ninth.  All  the  terms  and  conditions  of  said 
will  are  to  bo  and  remain  in  full  force  except 
as  revoked  or  modified  by  this  codiciL" 

Testatrix  died  childless  shortly  after  the 
execution  of  the  codldl,  leaving  as  her  next 
of  kin  her  said  brother,  now  deceased,  two 
nieces,  daughters  of  a  deceased  sister  of  tes- 
tatrix, and  appellant,  the  grandson  and  only 
lineal  descendant  of  another  deceased  sister. 

[1]  Mrs.  Potter's  executor  filed  an  account 
showing  a  fund  for  distribution,  no  claim  to 
^^diicb  was  made  on  behalf  of  the  brother  or 
his  children;  and  from  a  decree  of  the  or- 
phans' court  awarding  'same  to  the  two 
nieces,  to  the  exclusion  of  appellant,  this  ap- 
peal was  taken  on  bis  behalf.  Admittedly, 
as  between  him  and  the  nieces,  he  Is  en- 
titled to  one-half  of  the  fund,  unless  exclud- 
ed therefrom  by  the  terms  of  the  will  and 
<»dicil.  After  a  careful  examination,  we  are 
of  the  opinion  that  there  is  no  such  exclu- 
sion, and  that  appellant  as  next  of  kin  is  en- 
titled to  share  in  the  distribution  In  accord- 
ance with  the  intestate  laws.  Every  doubt 
must  be  resolved  in  favor  of  the  heir  at  law, 
who  cannot  be  disinherited  except  by  express 


words  or  necessary  Implication.  Bender  v. 
Dietrich,  7  Watts  &  S.  281;  Brendllnger  y. 
Brendllnger,  26  Pa.  131;  France's  E>state,  75 
Pa.  220;  Bruckman's  Estate,  196  Pa.  363,  45 
AU.  107a 

[2,  3]  The  presiunptlon  Is  that  testatrix  In- 
tended to  dispose  of  her  residuary  estate, 
and  construing  together  the  will  and  codicil, 
it  may  fairly  be  determined  that  she  did  so. 
The  original  residuary  bequest  to  Mr.  Hall- 
stead and  his  child  contained  in  the  will  was 
revoked  by  the  codldl,  and  thereupon  the 
alternative  residuary  bequest  to  the  next  of 
kin  took  effect.  This  thought  is  emphasized 
by  paragraph  9  of  the  codicil,  wherein  testa- 
trix expressly  continues  in  full  force  all  of 
the  terms  of  the  will  except  as  revoked  or 
modified.  Now  the  codicil  revoked  all  por- 
tions of  paragraph  14  of  the  will,  by  which 
any  property  was  given  or  bequeathed  to  Mr. 
Hallstead  dr  to  his  surviving  child,  whldi  re- 
voked all  of  the  paragraph  down  to  and  in- 
cluding the  words  "then  all  of  said  estate  to 
go  to  said  child  absolutely,"  and  thereby  ho 
was  deprived  of  the  bequest  as  sole  resid- 
uary legatee.  But  only  so  much  of  the  para- 
graph was  revoked  as  gave  something  to 
Hallstead  or  his  child.  The  original  will 
gave  them  nothing  as  next  of  kin ;  for  by  its 
express  terms  nothing  was  given  to  the  next 
of  kin  until  after  the  death  of  both  HaU- 
stead  and  his  child.  The  codldl  by  its  terms 
revoked  only  what  had  been  given  in  the 
will,  and  did  not  att«npt  to  revoke  the  rights 
of  the  next  of  kin,  which  arose  by  virtue  of 
the  codicil  Itself  and  had  no  prior  existence. 
She  did  not  revoke  that  which  had  no  exist- 
ence until  after  the  revocation.  Whatever 
rights  the  next  of  kin  have  as  residuary  leg- 
atees had  their  inception  in  the  codldl,  be- 
cause the  will  gave  them  nothing  as  such 
except  upon  a  condition  that  never  occurred, 
to  \vit,  the  death  of  Hallstead  and  his  child 
during  the  life  of  testatrix.  But  the  codldl 
was  a  republlcat;ion  of  the  will  as  modified. 
and  thereby  the  residuary  estate  was  given 
to  all  the  next  of  kin  as  they  would  have 
taken  under  the  intestate  laws,  with  the 
single  exception  that  the  brother  was  ex- 
cluded therefrom.  At  the  time  of  such  re- 
publication Mrs.  Potter  undoubtedly  knew 
that  appellant  was  one  of  her  next  of  kin, 
and  had  she  dedred  to  exdude  him  could 
have  so  stated,  or,  had  she  then  Intended  to 
give  all  of  her  residuary  estate  to  the  two 
nieces,  that  could  have  been  stated  in  the 
codldl.  But  the  mere  fact  that  testatrix  re- 
voked the  clause  making  appellant  sole  lega- 
tee, without  more,  does  not  predude  him 
from  sharing  in  the  gift  to  the  next  of  kin 
of  which  he  is  one.  Construing  the  will  and 
codicil  by  the  language  used,  we  find  nothing 
to  prevent  appellant  from  so  sharing.  He 
is  excluded  neither  by  express  language  nor 
by  necessary  implication:  In  fact,  as  the  ex- 
press exclu.sion  Includes  the  brother  only,  the 
implication  wou)d  be  the  other  way,  as  It 


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also  would  becanse  of  the  fact  tbat  the  resid- 
uary estate  Is  given  to  the  next  of  kin  as  a 
class  and  not  to  any  particular  individuals. 
Because  Mrs.  Potter  did  not  desire  appellant 
to  have  the  entire  residuary  estate  does  not 
diange  his  status  as  next  of  kin  or  deprive 
him  of  the  right  to  share  with  the  others  as 
such.  See  Hitchcock  t.  Hitchcock,  35  Pa. 
393;  Wain's  Estate,  Vaux's  Appeal,  156  Pa. 
194,  27  AtL  59;  Gorgas's  Estate,  Robinson's 
Appeal,  166  Pa.  269,  31  AU.  86;  FuUer's  Es- 
tate, 225  Pa.  626,  74  Atl.  623. 

The  cases  above  dted  seem  to  support  our 
conclusion  although  no  two  wills  are  exactly 
alike. 

McGovran's  Estate,  190  Pa.  375, 42  AtL  705, 
relied  on  by  the  court  below.  Is  not  in  point, 
except  as  applicable  to  the  brother.  There 
the  residuary  bequest  was,  "The  rest  and 
residue  of  my  estate  I  direct  to  be  distribute 
ed  by  my  executor  hereinafter  named  under 
the  Intestate  laws  of  Pennsylvania,  but  in  no 
event  is  Mrs.  Mordock,  widow  of  Campbell 
Murdock,  or  her  three  children,  and  Mrs. 
Kate  Johnson,  or  her  two  children,  to  receive 
any  portion  of  my  estate  in  any  shape  or 
form,"  and  It  was  held  that  those  so  express- 
ly excluded  were  not  entitled  to  share  in  the 
distribution;  whereas  In  our  case  there  Is  no 
express  exclusion  of  appellant. 

The  assignments  of  error  are  sustained, 
the  decree  is  reversed  at  the  cost  of  appel- 
lees, and  the  record  Is  remitted  to  the  court 
below  that  distribution  may  be  made  in  ac- 
cordance with  this  opinion. 

(ZCT  Pa.  M»)  ' 

a  G.  QAWTHROP  CO.  t.  riBRB  SPE- 
CIALTY CO.  et  al 

(Supreme    (?ourt    of   Pennsylvania.     April    9, 
1917.) 

1.  AssionKENTS  FOB  Beitkitt  OT  CREOrrOBS 
^»298— RiOHTfl  OF  Ceeditoks— TlMK. 

The  rights  of  creditors  are  fixed  aa  of  the 
date  of  an  assignment  for  the  benefit  of  credi- 
tors. 

2.  Pbircifal  and  Subett  $=»194(1)  —  Con- 
TRiBtmoN— Claim  of  Cobubett. 

Except  as  to  the  right  and  property  con- 
nected  with   the   transaction,    the  claim   of   a 
cosurety  for  contribution  is  no  higher  than  that 
of  any  other  claim, 
8.  Stjbbooation  «=»1— Gbottndb— EQurrr. 

Subrogation,  which  k  founded  upon  equity, 
will  never  be  granted  to  the  prejudice  of  other 
rights  of  equal  or  higher  rank. 
4.  Assionmbntb  fob  Benefit  or  C!bbditobs 
«=B298—CLAncB— Equities. 

CSaims  against  an  insolvent  estate  existing 
at  the  date  of  an  assignment  for  the  benefit  of 
creditors  are  at  least  as  strong  In  equity  as  a 
claim  thereafter  arising,  even  though  the  ob- 
ligation out  of  which  it  arose  antedated  the  as- 
signment 
6.  SrBBOOATiON    «=»21— Payment— Gbottnds. 

It  is  not  a  liability  to  pay,  but  an  actual 
payment  to  the  creditor,  whicli  raises  the  equi- 
table right  to  be  subrogated  to  his  remedies. 
6.  Assignments   for  Benefit  of  Cbeditobs 
4s>215— Status  of  Abbionee. 

Aa  assignee  for  the  benefit  of  creditors 
stands  in  the  place  of  the  assignor. 


7.  OOBPOBATIOKS  ^=oS6R(l)  —  iNSOrVENCT  — 

Rights  as  Between  Subxties  —  Gknebal 

Cbeditob. 
A  surety  on  the  bond  of  the  treasurer  of 
the  corporation  loaned  $5,000  to  the  corpora- 
tion on  its  note,  and  subsequently  made  an  as- 
signment of  his  property,  including  the  note,  to 
a  trustee  for  the  benefit  of  his  creditors,  and 
the  estate  of  a  cosurety  paid  the  corporation 
the  amount  of  the  treasurer's  default  and  claim- 
ed subrogation  to  the  rights  of  the  first  surety 
for  the  amount  of  the  dividend  awarded  him 
against  the  corporation  In  receivership,  in  pref- 
erence to  his  general  creditors  whose  claims 
arose  before  the  treasarer's  default  BM,  that 
the  estate  was  only  a  general  creditor. 

8.  Appeal   and   Erbob   €=>1170(12)— Decbee 

ON    E2XCBPTI0NS  TO   AUDITOB'fl    REPOBI^RB- 
VEB8AL. 

Where  the  lower  court's  decree  sustains  ex- 
ceptions to  an  auditor's  report,  and  the  con- 
trolling exceptions  are  well  taken,  and  the  decree 
is  properly  entered,  it  Will  not  be  reversed  be- 
cause it  apparently  su^tainfi  some  minor  excep- 
tions not  well  founded,  nor  because  of  minor 
inaccuraoies  in  the  opinion  filed  with  the  decree. 

Appeal  from  Court  of  Conunon  Pleas,  Ches- 
ter County. 

Proceeding  by  the  CL  G.  Gawthr<H)  Com- 
pany against  the  Fibre  Specialty  Company, 
George  W.  Taft,  president,  and  J.  W.  Brain- 
ard,  secretary.  Prom  a  decree  sustaining 
exceptions  to  the  auditor's  report  and  direct- 
ing the  disposition  of  dividends,  D.  Duer 
Philips  and  others,  executors  of  James  li. 
Worrall,  deceased,  appeal.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKBR,  and 
WALIyING,  JJ. 

Isabel  Darlington  and  Thomas  S.  Butler, 
both  of  West  Chester,  for  appellants.  A.  M. 
Holding,  of  West  Chester,  for  appellee. 

WAIiUNG,  J.  This  Is  &  question  of  dl»- 
tributlon  In  an  Insolvent  estate.  On  April 
28,  1913,  receivers  were  appointed  for  the 
Fibre  Specialty  Company,  a  corporation. 
Prior  thereto,  on  July  23,  1J912,  the  company 
for  value  gave  George  W.  Taft  a  demand 
note  for  $5,000.  J.  W.  Bralnard  was  of- 
ficial treasurer  of  the  cmnpany,  and  in  1903 
gave  a  bond  in  $5,000,  with  Taft  and  James 
M.  Worrall  (now  deceased)  aa  sureties,  condi- 
tioned for  the  faithful  performance  of  his 
duties  as  such  treasurer.  June  26,  1913,  Mr. 
Taft  made  an  assignment  of  his  estate,  spe- 
cifically including  the  $5,000  note,  to  Harry 
W.  Chalfant,  for  benefit  of  creditors.  In 
1914  the  receivers  filed  an  account,  and  an 
auditor  was  appointed  to  make  distribution 
thereof,  to  whom  the  Taft  note  was  present- 
ed by  the  assignee,  and  a  dividend  amount- 
ing  to  $2,157.15  awarded  thereon.  Mr.  Braln- 
ard, while  treasurer  of  the  company,  made 
default,  by  reason  of  which  the  receivers 
brought  suit  against  him  and  his  sureties  on 
the  bond  in  the  court  of  common  pleas  of 
Chester  county,  at  the  January  term,  1915, 
and  recovered  a  verdict  for  $3,809.02,  on 
which  Judgment  was  entered,  and  affirmed 
by  this  court  in  case  of  Marshall  v.  Bralnerd 


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2S3  Pa.  35,  97  AtL  1057.  Bralnard  and  Taft 
being  insolvent,  this  judgment  was,  on  April 
20,  1916,  paid  by  appellants  as  executors  of 
James  M.  Worrall,  deceased,  to  whom  one- 
half  of  the  Judgment  was  thereupon  assigned. 

After  the  award  of  the  dividend  to  Chal- 
fant  on  the  Taft  note,  the  claim  against 
Bralnard  and  his  sureties  on  the  bond  hav- 
ing been  brought  to  the  attention  of  the  court 
below,  it  was  there  orderad  that  the  dividend 
be  retained  by  the  receivers  until  the  final 
determination  of  the  action  on  the  bond, 
whicdi  was  done.  The  receivers  in  a  subse- 
quent final  account  charged  themselves  with 
the  $2,157.15  dividend,  which  the  auditor 
thereafter  awarded  appellants  by  way  of 
contribution  firom  Taft  as  their  cosurety. 
The  learned  court  below  sustained  exceptions 
to  the  auditor's  report,  and  by  final  decree 
ordered  the  dividend  paid  to  Ghalfant  on  the 
Taft  note ;  and  from  that  decree  this  appeal 
was  taken. 

The  $5,000  note  was  a  matter  entirely  sep- 
arate and  apart  from  the  treasurer's  bond, 
and  had  no  connection  with  Mr.  Bralnard  or 
his  account  with  the  company.  Appellants' 
right  to  contribution  or  subrogation  arose 
when  they  paid  the  Judgment  Then  they 
were  equitably  entitled  to  an  assignment  of 
the  judgment,  and  also  of  any  collateral  or 
other  property  held  by  the  receivers  to  se- 
cure the  payment  of  the  bond.  But  they 
were  not  entitled  to  the  dividend  awarded  to 
the  Taft  note,  as  that  was  an  entirely  sepa- 
rate matter.  The  note  was  a  part  of  Taft's 
general  estate,  and  appellants  had  no  special 
equity  In  that  Except  as  to  matters  connect- 
ed with  the  bond,  appellants  are  merely 
creditors  of  Taft  to  one-half  the  amount  they 
paid  on  account  of  the  surety  bond;  and  they 
only  became  such  creditors  when  they  paid 
the  Judgment  on  April  20, 1916.  Prior  to  that 
time  they  had  no  claim  against  Taft  See  8 
Modem  American  Iiaw,  p.  224. 

[1-S]  It  is  not  easy  to  see  how  appellants 
can  secure  preference  over  other  creditors 
whose  claims  were  in  existence  at  the  time 
of  the  assignment,  for  as  a  general  rule  the 
rights  of  creditors  are  fixed  as  of  that  date. 
Sweatman's  Appeal,  150  Pa.  369,  24  Atl.  617; 
Jamison  &  Co.'s  Assigned  Estate,  163  Pa.  143, 
29  Atl.  1001 ;  Potter  v.  Gilbert  177  Pa.  159, 
35  Atl.  697,  35  L.  R.  A.  580;  Chestnut  Street 
Trust  &  Saving  Fund  Co.'s  Assigned  Estate, 
217  Pa.  151,  66  Atl.  332,  118  Am.  St  Rep.  909. 
Except  as  to  rights  and  property  connected 
with  the  transaction,  the  claim  of  a  cosurety 
for  contribution  is  no  higher  than  that  of 
any  other  claim;  and  subrogation,  which  is 
founded  upon  equity  and  benevolence,  will 
never  be  granted  to  the  prejudice  of  other 
rights '  of  equal  or  higher  rank.  Fritch  v. 
Citizens'  Bank,  191  Pa.  283,  43  Atl.  394; 
Knours  Appeal,  91  Pa.  78;  Grand  Council 
of  Penna.  Royal  Arcanum  v.  Cornelius,  198 
Fa.  46,  47  AtL  1124;    Shlmp's  Assigned  Has- 


tate, 107  Pa.  128.  46  AtL  1037.  Claims 
against  an  insolvent  estate  which  were  in 
existence  at  date  of  the  assignment,  would 
seem  at  least  to  have  as  strong  an  equity  as 
one  thereafter  arising,  even  though  the  ob- 
ligation out  of  which  it  arose  antedated  the  as- 
signment "It  is  not  a  liability  to  pay,  but  ac- 
tual payment  to  the  creditor,  which  raises  the 
equitable  right  to  be  subrogated  to  his  reme- 
dies." Kyner  v.  Kyner,  6  Watts,  221;  Hoover 
V.  E|>ler,  52  Pa.  522;  Forest  Oil  Company's 
Appeals,  118  Pa.  138,  12  Ati.  442,  4  Am.  St 
Rep.  584.  Subrogation  will  never  be  enforced 
to  defeat  a  superior  or  even  an  equal  equity. 
Robeson's  Appeal,  117  Pa.  633,  12  AU.  51.  A 
case  quite  similar  to  this  in  principle  is  that 
of  Farmers'  &  Drovers'  Bank  v.  Sherley  et 
aL,  12  Bush  (75  Ky.)  304. 

[I,  7]  Creditors  of  Taft  acquired  no  special 
rights  because  of  the  transfer  of  the  note  to 
Ghalfant  as  an  assignee  for  benefit  of  credi- 
tors stands  in  the  place  of  the  assignor  (Pot- 
ter V.  Gilbert,  177  Pa.  159,  35  Atl.  597,  35 
Ll  R.  a.  580),  and  not  in  that  of  a  bona  fide 
holder  for  value.  In  Marshall  v.  Bralnerd, 
supra,  it  is  held  that  the  Taft  note  could  not 
be  Interposed  as  a  set-oCt  against  the  suit 
on  the  treasurer's  bond.  Whether  or  not 
such  bond  should  have  been  set  oS  against 
the  claim  on  the  note  does  not  seem  now  im- 
portant; in  any  event  it  was  not  so  used; 
and  the  real  question  here  is  as  to  the  equita- 
ble rights  to  the  fund  in  question  between 
the  Worrall  estate  and  other  creditors  of 
Taft.  The  queStiMi  as  to  the  validity  of  the 
assignment  to  Ghalfant  is  not  before  the 
court  The  other  assignments  of  error  do  not 
seem  to  require  special  consideration. 

[I]  Where  the  lower  court  makes  a  gen- 
eral decree  sustaining  exceptions  to  an  audi- 
tor's report  and  the  controlling  exceptions 
are  well  taken,  and  the  right  decree  is  en- 
tered, an  appellate  court  will  not  reverse  be- 
cause such  general  decree  seemingly  sustains 
some  minor  exceptions  that  were  not  well 
foimded,  nor  because  of  minor  inaccuracies 
in  the  opinion  filed  with  the  decree.  How- 
ever, the  opinion  in  this  case  indicates  a  cor- 
rect understanding  of  the  facts  and  legal 
principles  applicable  thereto. 

The  decree  is  affirmed,  at  the  costs  of  ap- 
pellants. 

(Wr  Pa.  41S) 

SCHUXLKILL    OOtTNTT    t.    WIBST, 
County  Treasurer. 

(Supreme   Court   of   Pennsylvania.     April   16, 
1917.) 

1.  Cowirmts  «=a72— County  Clkbk— Salary 

—  OONBTITUTIONAI,  AMD    STATUTOBT   PROVI- 
SIONS. 

Const  art  14,  i  5,  providing  that  compen- 
sation of  county  officers  shall  be  regrulated  by 
law,  and  that  county  officers  shall  pay  all  fees 
received  Into  the  county  or  state  treasury  as 
directed  by  law,  and  Act  March  31,  1876  (P.  L. 
13)  §  1,  requiring  county  officers  to  receive  all 
fees  for   the   use  of   the  county,   excopi  those 


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(Pa. 


levied  by  the  state  which  shall  be  payable  to  It, 
and  that  they  shall  receive  no  fees  for  any  offi- 
cial services,  and  section  16,  declaring  the  salary 
of  such  officers  to  be  in  lieu  of  any  fees  and 
perquisites,  show  a  fixed  intention  to  confine 
salaried  county  officers  to  their  salary  as  com> 
pensation  for  Al  official  services, 
2.  Counties   «=>80(2)— County  Tbeasureb— 

Disposition  of  Fees— Constitutional  and 

Statutoby  Pbovisions. 
Under  Const  art  14,  |  5,  regulating  the  sal- 
ary of  county  treasurers  and  their  disposition 
of  fees  received  in  their  official  capacity,  and 
Act  March  31,  1876  (P.  I*  13),  enacted  to  carry 
such  provision  in  effect  In  counties  containing 
OTer  150,000  inhabitants,  the  treasurer  of  such 
a  county  is  not  entitled  to  retain  the  fees  col- 
lected by  him  for  issuing  hunters'  licenses  under 
Act  AprU  17,  1013  (P.  L.  86),  but  is  required 
to  pay  them  into  the  county  treasury. 
8.  OincEBS  ®=>94— Compensation  fob  Sbbt- 

ICES— Pbescmption. 
The  presumption  is  that,   when  an  officer 
receives  money  for  services  rendered  in  his  of- 
ficial capacity,  it  is  as  compensation  for  the  per^ 
formance  of  duties  as  such  officer. 

Appeal  from  Court  of  Common  Pleas, 
Schuylldll  County. 

Assumpsit  for  money  had  and  received 
by  the  County  of  Schuyllilll  against  Fred  J. 
Wlest,  County  Treasurer.  Judgment  for 
plaintiff  on  the  case  stated,  and  defendant 
appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TBEZAT,  P0TTE3B,  FRAZER,  and  WAL- 
UNvi,  JJ. 

John  B.  McGurl,  of  MlnersvUle,  for  appel- 
lant. Edmund  D.  Smith,  Sp.  Counsel,  C.  E 
Berger,  Sol.  for  Controller,  and  C.  A.  Snyder, 
Co.  Sol.,  all  of  PottsTille,  for  appellee. 

MESTR£2AT,  J.  Thla  Is  an  action  of  aa- 
snmpslt  brought  by  tbe  county  of  Sdiuylklll 
to  recover  fees  collected  by  the  defendant, 
as  county  treasorer,  for  lionters'  licenses 
issoed  by  him  under  the  prorislons  of  tbe 
act  of  April  17, 1913  (P.  L.  85).  The  treasur- 
er claims  that  the  fees  belong  to  him  per- 
sonally, and  that  he  Is  entitled  to  retain  them 
for  his  own  use,  while  the  county  contends 
that  they  belong  to  It  and  mnst  be  accounted 
for  by  the  treasurer.  Tbe  facts  were  agreed 
upon  by  the  parties  and  submitted  to  the 
court  Id  a  case  stated.  The  court  was  of 
opinion  tttat  the  license  fees  collected  by  the 
treasurer  belong  to  the  county,  and  entered 
Judgment  against  the  defendant  He  has 
taken  this  appeal. 

The  act  of  1013  was  passed,  as  its  title 
shows,  for  the  better  protection  of  wild  birds 
and  game  within  the  state.  It  authorizes 
the  county  treasurer  to  Issue  a  "resident 
hunter's  license"  granting  permission  to  hunt 
for  birds  and  game  within  the  state  and  pro- 
vides penalties  for  a  Tlolation  of  its  provi- 
sions. The  eighth  section  of  the  statute  en- 
acts as  follows: 

"Said  county  treasurers  are  herewith  author- 
ized to  retain  for  services  rendered  the  sum  of 
ten  cents  from  the  amount  paid  by  each  licensee, 
which   amount  shall  be  full  compensation   for 


services  rendered  by  him  In  eadi  easo  under  the 
provisions  of  this  act,  and  shall  remit  all  bal- 
ances arising  from  this  source,  at  least  once  a 
month,  to  the  state  treasurer,  for  the  parposes 
otherwise  provided  for  in  this  act" 

11]  The  county  of  SchnylltiU  contains  over 
150.000  inhabitants,  and  therefore  is  within 
section  5,  art  14,  of  the  Constitution  of  Penn- 
sylvania, which  provides.  Inter  alia,  as  fol- 
lows: 

"The  compensation  of  county  officers  shall  be 
regulated  by  law,  and  all  county  officers  who 
are  or  may  be  salaried,  shall  pay  all  fees  which 
they  may  be  authorized  to  receive,  into  the 
treasury  of  the  county  or  state,  as  may  be  di- 
rected by  law.  In  counties  containing  over  ono 
hundred  and  fifty  thousand  inhabitanta,  all 
county  officers  shall  be  paid  by  salary." 

To  carry  Into  effect  this  provision  of  the 
Constitution  the  Leg^lslature  passed  the  act 
of  March  31,  1876  (P.  L.  13),  section  1  of 
which  provides  that  in  counties  containing 
over  160,000  inhabitants— 

"all  fees  limited  and  appointed  by  law  to  be  re- 
ceived by  each  and  every  county  officer  •  •  • 
or  which  they  shall  legally  be  authorized,  requir- 
ed or  entitled  to  charge  or  receive,  shall  belong 
to  the  county  in  and  for  which  they  are  sev- 
erally elected  or  appointed;  and  it  shall  be  tbe 
duty  of  each  of  said  officers  to  exact,  collect 
and  receive  all  such  fees  to  and  for  the  use  of 
their  respective  counties,  except  such  taxes  and 
fees  as  are  levied  for  the  state,  which  shall  be 
to  and  for  the  use  of  the  state;  and  none  of 
said  officers  shall  receive  for  his  own  use,  or  for 
any  use  or  purpose  whatever  except  for  the 
use  of  the  proper  county  or  for  the  state,  as  the 
case  may  be,  any  fees  for  any  offidal  services 
whatsoever." 

The  act  Axes  the  salaiy  of  the  treasurer 
and  other  county  ofBcers,  and  then  provides 
in  section  16  as  follows: 

"Tbo  salaries  fixed  and  provided  by  the  fore- 
going provisions  shall  be  in  Ueu  of  all  or  any 
moneys,  fees,  perquisites  or  mileage  which  are 
now  or  may  hereafter  be  received  by  any  officer 
named  in  this  act;  and  all  said  moneys,  fees, 
mileage  or  perquisites,  received  b^  any  of  them 
as  compensation,  fees  or  perquisites,  from  any 
source  whatever,  shall  in  all  cases  belong  to  the 
county,  and  shall  be  paid  into  the  treasury  (ex- 
cept where  leaolred  to  be  paid  to  the  state),  as 
provided  in  this  act" 

W«  think  there  is  no  difficult  In  sustain- 
ing the  Judgment  entered  for  the  plaintiff  by 
the  learned  court  below.  The  oonstitutlMial 
mandate  and  the  legislative  enactment  passed 
to  make  it  effective  are  so  explicit  that  they 
do  not  require  Judicial  construction.  In  fact, 
as  was  well  said  by  Judge  Thayer  in  Pierle 
V.  Philadelphia,  139  Pa.  673,  578,  21  AtL  90: 

"The  prohibition  of  tho  receipt  of  fees  for 
their  own  use,  and  the  regulation  of  their  com- 
pensation by  fixed  salaries  exclusively,  could 
hardly  have  been  expressed  in  plainer  language 
than  that  which  is  written  in  the  Constitutiim. 
It  is  impossible  for  any  ingenuity  to  prevail 
against  it.  There  is  nothing  left  for  construc- 
tion or  interpretation.  It  interprets  itself  as 
plainly  as  any  words  in  the  English  language 
can  do  so,  and  there  is  no  hook  upon  which  to 
hang  a  query  or  a  doubt." 

In  making  this  assertion  we  are  not  un- 
mindful of  the  several  attempts  made  by 
county  officers,  as  disclosed  by  the  numerous 


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SCHUYLKILiL  COUNTY  y.  WIEST 


763 


r«se8  Id  this  court,  to  defeat  tbe  constitution- 
al and  statutory  enactments  by  appropriat- 
ing to  tbelr  use  fees  received  in  tbeir  official 
capacity.  Tbls  provision  of  thft  Constitu- 
tion bas  never  been  satisfactory  to  county 
officials,  who,  by  the  assistance  of  able  and 
Ingenious  counsel,  have  omitted  no  oppor- 
tonity  to  evade  its  mandatory  provisions. 

An  analysis  of  the  enactments,  constitution- 
al and  legislative,  will  clearly  shov  the  fix- 
ed intention  to  confine  a  salaried  county  of- 
ficer to  his  salary  as  compensatioa  for  all 
services  rendered  in  his  official  capacity.  The 
Constltntioa  declares  that  he  "shall  pay  all 
fees"  wliich  he  may  be  antliorized  to  receive 
into  the  treasury  of  the  county  or  state.  The 
first  section  of  the  act  of  1876  provides  tbat 
"all  fees  limited  anQ  appointed  by  law"  to  be 
lecdved  by  coun^  officers  shall  be  received 
"to  and  for  tbe  use  of  their  respective  coun- 
ties," and  declares  that  "none  of  said  [county] 
officers  shall  receive  for  bis  own  use,  or  for 
any  use  or  purpose  wliatever  except  for  the 
use  of  tbe  proper  county  or  for  the  state, 
•  *  •  any  fees  for  any  official  servloes 
whatsoever."  Section  15  seeks  to  emphasize. 
If  it  can  be  made  more  emphatic,  tbe  pro- 
vision of  section  1  by  declaring  that  salaries 
fixed  by  the  act  "shall  be  in  lieu  of  all  or  any 
moneys,  fees,  perquisites  or  mileage,  which 
are  now  or  may  hereafter  bo  received  by  any 
officer;  •  •  •  and  all  said  moneys  •  •  • 
received  by  any  of  them  as  compensation, 
fees  or  perquisites,  from  any  source  what- 
ever, sball  in  all  cases  belong  to  tbe  county, 
and  shall  be  paid  into  the  treasury  (exc^t 
where  required  to  be  paid  to  the  state),  as 
provided  in  this  act"  As  to  this  exception 
and  in  explanation  of  it,  Mr.  Justice  Dean, 
speaking  for  the  court,  said  In  Ck)mmonwealth 
V.  Mann  et  aL,  168  Pa.  290,  299,  31  AtL  1003, 
1006: 

"This  would  have  been  but  little  more  signifi- 
cant if  it  had  said  'except  collateral  inheritance 
taxes,  state  tax  on  writs,  wills,  commiasiona  and 
license  fees.' " 

Section  9  of  the  act  requires  county  of- 
ficers to  make  monthly  returns  to  the  state 
treasurer  of  such  taxes  and  ail  fees  otlterwise 
due  tbe  state,  and  pay  tbe  same  quarterly 
Into  the  state  treasury,  and  provides  ttiat: 

"All  commissions  on  the  collection  of  nudx 
taxes  as  are  now  or  may  hereafter  be  allowed 
by  law  shall  be  deemed  and  taken  as  part  of 
the  regular  fees  of  the  officer  ooUectlng  the  same, 
«nd  shall  be  accounted  for  accordingly." 

The  present  controversy  is  between  an  in- 
dividual, who  is  county  treasurer,  and  the 
county.  Tbe  state  Is  not  claiming  the  fees 
for  which  this  suit  was  brought  nor  is  she 
interested  in  who  gets  them. 

[J,  3]  The  county  of  Schuylkill  bas  a  popu- 
lation of  over  150,000,  and  the  treasurer  of 
the  county  is  therefore  a  salaried  officer.  He 
receives  $5,000  a  year  for  his  services.  It  is 
difficult  to  see,  in  view  of  the  constitutional 
and  l^slatlve  provisions,  what  claim  the 
defendant,  Wiest,  county  treasurer,  as  an  in- 


dividual and  for  his  own  use,  can  have  on 
the  fund  In  controversy.  He,  through  bis 
counsel,  contends  In  support  of  his  claim  that 
the  services  performed  by  him  in  collecting 
the  hunters'  license  fees  under  the  act  of  1013 
were  rendered  to  the  state,  and  were  no  part 
of  bis  duties  as  county  treasurer,  but  separate 
and  'distinct  therefrom.  This  contention  can- 
not be  sustained.  The  act  of  1913  did  not 
make  Wiest  a  state  officer,  as  will  be  conced- 
ed, nor  did  he  have  any  functions  as  such  to 
perform  In  the  collection  of  the  license  fees. 
He  did  not  receive  the  fees  in  controversy 
by  authority  conferred  on  him  as  a  state  offi- 
cial. The  act  deals  with  him  as  a  county,  and 
not  a  state  official,  and  not  as  an  individual. 
The  Constitution  of  the  state  fixed  bis  status 
as  a  county  officer.  The  county  treasurer, 
as  provided  In  the  act,  is  authorized  to  issue 
hunters'  licenses,  to  collect  $1  from  each  ap- 
plicant, to  netaln  10  cents  from  tbe  amount 
paid  to  tbe  licensee,  and  remit  the  balance  to 
the  state  treasury.  The  act  therefore  confers 
its  authority  on  the  county  treasurer,  and  not 
on  the  individual  who  happens  at  the  time 
to  be  the  Incumbent  of  the  office.  Each  st^ 
be  takes  to  carry  out  the  provisions  of  the 
act  is  in  his  official  capacity  as  county  treas- 
urer. The  license  is  issued  and  signed  by  the 
county  treasurer  in  his  official,  and  not  his 
personal,  capacity.  By  virtue  of  his  office, 
and  not  as  an  individual,  he  collects  the  li- 
cense fee  and  retains  the  amount  for  services 
designated  in  the  act.  It  Is  true  that  the  li- 
cense fees  are  levied  for  and  are  to  be  paid 
to  the  state,  but  it  does  not  follow  that  the 
compensation  for  the  services  rendered  In 
Issuing  the  licenses  and  collecting  the  fees 
therefor  Is  to  be  paid  to  and  for  tbe  use  of 
the  Individual  who  at  the  time  is  the  officer 
authorized  in  liis  official  capacity  by  the  stat> 
ute  to  perform  the  service.  On  the  contrary, 
section  0  of  the  act,  as  will  be  observed,  pro- 
vides tliat  the  commissions  for  collecting 
state  taxes  and  fees  shall  be  deemed  "part  of 
the  regular  fees  of  the  officer  collecting  the 
same,  and  shall  be  accounted  for  accordingly." 
The  act  does  not  appoint  county  treasurers  as 
agents  of  the  commonwealth  to  collect  the 
license  fees,  nor  does  it  authorize  them  to  ap- 
ply to  their  own  use  the  money  retained  for 
such  services.  The  presumption  is  that,  whoi 
an  officer  receives  money  for  services  render- 
ed in  his  official  capacity,  it  is  as  compensa- 
tion for  the  performance  of  duties  as  such  of- 
ficer. If  Wiest  had  not  held  the  office  of 
county  treasurer,  he  could  not  have  issued 
the  hunters'  licenses  or  collected  tbe  license 
fees,  and  necessarily  could  not  have  retained 
the  designated  fees  for  the  services.  He 
therefore  holds  the  fees,  received  as  compen- 
sation, in  bis  official  capacity  as  county  treas- 
urer, and  under  the  constitutional  and  leg- 
islative mandates  he  must  account  for  them 
to  the  county  of  Schuylkill. 

In  construing  the  act  of  1876  and  holding 
tbat  the  prothonotary  of  Schuylkill  county,  a 


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salaried  officer.  Is  not  entitled  to  the  fees  au- 
thorized by  the  act  of  CJongress  to  be  retained 
by  him  for  the  naturalization  of  aliens,  Mr. 
Justice  Stewart,  speaking  for  the  court  In  the 
recent  case  of  Schuylkill  C!oanty  ▼.  Reese, 
249  Pa.  281,  286,  95  Atl.  77,  78,  said: 

"These  fees  for  services  is  connection  with 
naturalization  proceedings,  though  prescribed  by 
federal  statute,  and  by  such  statute  directed  to 
be  paid  to  a  clerk  of  a  state  court,  are  quite 
as  clearly  limited  and  appointed  by  law  to  be 
collected  by  such  official  as  any  fees  prescribed 
by  state  enactment.  •  *  *  It  was  only  by 
virtue  of  his  official  character,  and  not  as  an 
individual,  that  be  was  authorized  to  collect  and 
receive  these  fees;  he  is  not  designated  as  an 
individual,  but  as  an  official," 

The  Supreme  Court  of  the  United  States, 
in  Mulcrevy  &  Fidelity  &  Deposit  Co.  r.  City 
and  County  of  San  Francisco,  231  U.  S.  669, 
84  Sup.  Ct  260,  68  L.  Ed.  428,  in  construing 
a  provision  of  the  dty  charter  of  San  Fran- 
cisco similar  to  the  provision  of  our  act  of 
1876  aitd  applying  this  act  of  Congress,  came 
to  the  same  conclusion,  and  held  that  the 
clerk  sliould  account  to  the  county  for  the 
fees  received  by  liim.  Mr.  Justloe  McKenna, 
n)eaking  for  the  court,  said  (231  U.  S.  674, 
34  Sup.  Ct  262,  68  L.  Ed.  425) : 

"If  it  be  granted  that  he  was  made  an  agent 
of  the  national  government,  his  relations  to  the 
city  were  not  thereby  changed.  He  was  still 
its  officer,  receiving  fees  because  ho  was  not 
earning  them  otherwise,  or  receiving  them  other- 
wise, bat  under  compact  with  the  city  to  pay 
them  into  tho  city  treasury." 

The  Judgment  is  affirmed. 

(2S7  Pa.  m)  «== 

KETOHAM  V.  LAND  TITLE  &  TRUST  CO. 

(Supreme   Court   of   Pennsylvania.      April    16, 
1917.) 

MoRTOAOES  «=>151(3)— Pbiobitt— Mecraitics' 
Liens— Demoution  of  Buildino — "Visibi-e 

COKMENCEMENT    UPON    THE    GBOTTND    OF   THE 

WoEK  01  Building." 
Where  It  was  necessary  to  tear  down  a 
dwelling  house  before  an  apartment  house  could 
he  constructed  upon  a  lot  and  the  demolition 
was  performed  under  the  same  contract  as  the 
construction,  such  demolition  constitutes  a  "visi- 
ble commencement  upon  the  grouad  of  the  work 
of  building"  within  Mechanic's  Lien  Art  (Art 
June  1,  1901  [P.  L.l  431)  {  13,  deBning  the 
priority  of  liens,  so  that  a  mechanic's  lien  filed 
for  work,  labor,  and  materials  in  the  construc- 
tion dated  from  the  commencement  of  such 
demolition,  and  was  prior  to  a  mortgage  execut- 
ed and  recorded  after  the  demolition  has  been 
completed. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Visible 
Commencement  of  Work.] 

Appeal  from  Court  of  Ommon  Pleas,  Pliil- 
adelphla  County. 

Assumpsit  on  a  policy  of  title  insurance 
by  O.  W.  Ketcham  against  the  Land  Title  * 
Trust  Company.  From  a  final  order  dismiss- 
ing exceptions  to  the  report  of  a  referee, 
defendant  appeals.    AfiSrmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCDHZISKBR,  FRAZER,  and  WAL- 
LING, JJ. 


John  G.  Johnson,  Ormond  Rambo,  and  J. 
Quincy  Huuslcker,  Jr.,  all  of  Philadelphia, 
for  appellant.  Alex.  Simpson,  Jr.,  and  Joseph 
G.  Magee,  both  of  Plilladelphia,  for  appellee 

BROWN,  C  J.  On  July  9,  1912,  Samuel 
Shoemaker  acquired  title  to  a  lot  of  ground 
situated  at  the  northeast  comer  of  School- 
house  lane  and  Wayne  avenue,  Germantown, 
on  which  there  was  a  suburban  dwelling 
house.  Shoemaker  purchased  the  lot  for  the 
purpose  of  erecting  an  apartm«)t  house  upon 
it  on  the  site  of  the  dwelling  house.  On 
August  5,  1912,  he  executed  a  mortgage  on 
the  premises  to  Frank  H.  Moss  for  $150,000, 
and  the  money  so  raised  was  expended  hi 
the  erection  of  the  new  building.  The  lAnd 
Title  &  Trust  Company,  the  appellant,  issued 
its  policy  of  insurance  to  Moss,  the  mortga- 
gee, insuring  the  completion  of  the  apartment 
house  discharged  of  liens.  O.  W.  Ketcham, 
the  appellee,  filed  a  mechanic's  li«i  Against 
it  for  materials  furnished  to  Shoemaker  for 
the  erection  of  it.  In  proceedings  on  the 
Moss  mortgage  the  premises  were  sold  at 
sheriff's  sale,  and  Ketcham,  claiming  that  his 
mechanic's  lien  had  priority  over  the  mort- 
gage, took  a  rule  on  the  sheriff  to  pay  the 
entire  purchase  price  for  the  property,  $150,- 
000,  into  court  This'  rule  was  subsequently 
abandoned  by  Ketcham,  he  and  the  Land. 
Title  &  Trust  Company  having  agreed  In 
writing  that  the  question  of  the  priority  of 
his  lien  over  the  mortgage  should  be  referred 
to  SYancls  B.  Bracken,  E3sq.,  under  the  act 
of  May  14,  1874  (P.  L.  166).  In  pursuance 
of  the  terms  of  this  agreement,  Ketcham 
brought  suit  against  the  Land  Title  &  Trust 
Company,  and  from  the  r^ort  of  the  referee, 
confirmed  by  the  court  below,  holding  that 
the  mechanic's  lien  had  priority  over  the 
mortgage,  the  present  appeal  was  taken. 

The  facts  in  the  case  are  not  in  dispute. 
The  amount  claimed  by  the  appellee  on  his 
mechanic's  lien — $15,056 — ^is'  admitted  to  be 
correct  His  dalm  for  its  priority  over  the 
mortgage  is  resisted  solely  on  the  ground 
tliat  tlie  mortgage  was  recorded  before  there 
was  "the  visible  commencement"  of  the 
apartment  house  within  the  meaning  of  the 
Mechanic's  Lien  Act  of  June  4,  1901  (P.  L. 
431,  1 13).  The  only  work  done  on  the  prem- 
ises prior  to  August  6,  1912,  the  date  of  the 
execution  and  recording  of  the  mortgage,  in 
connection  with  the  contemplated  erection  of 
the  apartment  bouse,  was  the  demolition  of 
the  dwelling  house.  This  work,  which  was 
commenced  on  July  IStli,  was-  completed  on 
or  about  tlie  third  of  the  following  month, 
two  days  before  the  recording  of  the  mort- 
gage, and  the  question  before  the  referee  and 
court  below  was  whether  its  demolition  was 
"the  visible  commencement  upon  the  ground 
of  the  work  of  building"  the  apartment 
house. 


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m  BE  BBINOHU3RST'S  ESTATE 


765 


The  demoUUon  of  tbe  dweUing  house  was 
a  necessary  precedent  condition  to  the  erec- 
tion of  the  apartment  bouse.  The  latter  could 
not  be  built  nntll  the  former  was  out  of  the 
way.  The  tearing  down  of  the  old  house  was 
more  essential  to  the  building  of  the  new 
than  would  have  been  the  digging  of  a  cel- 
lar, for  the  new  bouse  might  have  been  built 
without  a  cellar.  The  first  step  to  be  taken 
for  Its  erection  was  the  removal  of  the  old 
dwelling  which  stood  on  the  site  selected  for 
it.  The  situation  here  presented  Is  not  that 
of  the  removal  of  an  old  building  having  no 
connection  with  the  construction  of  a  new 
one,  for  the  removal  was  so  linked  with  the 
work  upon  the  new  building  as  to  become  a 
part  of  one  single  operation,  and  this  con- 
cliuslrely  appeared  to  the  appellant  before  It 
issued  Its  policy  of  insurance  to  Moss.  The 
architect  who  designed  the  new  building  and 
drew  tie  specifications  for  It  to  be  submitted 
to  contractors,  Included  in  them  the  follow- 
ing: 

"Demolition.  Bemove  tiie  buildings  now  on 
the  site  together  with  all  foundations,  sidewalks 
and  curbing,  and  prepare  the  site  to  receive  the 
new  building." 

J.  WilUson  Smith,  the  manager  of  the 
buUding  operation  department  of  the  appel- 
lant, admitted  In  his  testimony  before  the 
referee  that  these  spedflcatlons  were  on  file 
with  his  company  before  it  Issued  Its  policy 
to  Moss,  and  the  learned  court  below,  in  dis- 
missing the  exceptions  to  the  report  of  the 
referee,  properly  said: 

"The  defendant  had  actual  knowledge  that  the 
work  of  demolition  was  done  for  constructive 
purposes,  that  is,  as  part  of  the  work  necessary 
to  Uie  new  bnildiuK.  The  specifications  recited 
the  work  of  demolition  and  construction  as  part 
of  the  same  contract,  and  it  was  these  specifica- 
tions which  the  defendant  insured  should  hi 
carried  out.  Moreover,  the  money  to  pay  for 
the  whole  was  deposited  with  the  defendant  for 
distribution.  It  therefore  liad  knowledge  of  the 
unity  of  the  operation." 

We- find  none  of  the  authorities  dted  by 
learned  counsel  for  appellant  in  conflict  with 
the  correct  conclusion  of  the  learned  referee 
that,  under  the  undisputed  facts  lu  the  case, 
tbe  demolition  work  incid«it  to  the  erection 
ol)  the  apartment  house  on  the  lot  of  ground 
subject  to  the  mortgage  Insured  by  the  de- 
fendant was  a  "risible  commencement"  of  the 
work  of  building  the  apartment  house,  witliin 
tbe  meaning  of  the  mechanic's  Hen  act  In 
none  of  our  own  cases  was  the  question  now 
before  us  passed  upon.  It  incidentally  arose 
in  McCrlBtal  v.  Cochran,  147  Pa.  226,  23  AU. 
444,  and,  in  declining  to  pass  apon  it,  Mr. 
Chief  Justice  Faxson  said: 

"Most  of  tbe  items  contained  in  the  bill  of  par- 
ticulars were  for  tearing  down  an  old  building 
preparatory  to  the  erection  of  the  new  building, 
for  which  the  claim  was  filed.  Whether  such 
demolition  is  part  of  the  erection  of  a  new 
building  is  a  question  which  we  do  not  find  de- 
cided by  this  court  in  any  reported  case.  We 
are  not  required  to  do  it  now,  as  the  first  item 
in  the  bill  of  particulars  is  sufiScient  to  sustain 


the  claim.  It  is  not  a  good  ground  to  strike 
oB  a  claim  that  some  of  the  items  are  insuffi- 
cient. If  it  contains  one  good  item,  which  is 
the  subject  of  a  lien,  it  is  enough." 

Among  the  cases  in  other  jurisdictions  sus- 
taining the  referee  are  Whltford  v.  Newell, 
2  Allen  (84  Mass.)  424;  Bruns  v.  Braun,  35 
Mo.  App.  337;  Pratt  v.  Nakdimen,  99  Ark.  293, 
138  S.  W.  974,  Ann.  Cas.  1913A,  872.  "Where 
improvements  for  which  a  lien  can  properly 
be  obtained  are  made,  the  lien  may  include 
the  work  of  tearing  down  old  structures  or 
parts  thereof  which  was  a  necessary  part  of 
the  mailing  of  the  improvements,"  27  Cya  36. 
In  Ann.  Cas.  1912B,  15,  there  is  a  note  on  tho 
subject  now  under  consideration,  and,  after 
citing  authorities  which  hold  that,  for  tbe 
removal  or  demolition  of  a  building,  no  lien 
wUl  be  sustained,  It  proceeds  as  follows: 

"Where  an  old  building  is  torn  down  for  the 
purpose  of  erecting  a  new  one,  obviously  a  dif- 
ferent case  is  presented.  The  demolition  he- 
comes  part  of  the  work  of  erection,  construction, 
or  repair,  and  the  laborer  is  entitled  to  a  lien. 
Ward  V.  Crane,  118  Cal.  676.  50  Pac.  839; 
Bruns  v.  Brann,  35  Mo.  App.  337." 

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


(XT  Fa.  Ofi) 

In  re  BBINGHURST'S  ESTATE. 

Appeal  of  FLANAGAN. 

(Supreme  Court  of  Pennsylvania.     April  16, 
1917.) 

WrtLS  <8=»601(7)— Devise  to  Mabbixd  Wo- 
man—Tbust. 
A  will  devising  a  residuary  estate  to  a 
daughter  for  her  sole  and  exclusive  use  free  from 
the  control  of  her  husband,  to  be  used  by  her 
as  if  she  were  sole  and  unmarried,  intended  a 
trust  for  her  separate  use,  so  that  her  petition 
to  vacate  her  appointment  as  trustee  for  her- 
self, filed  during  the  lifetime  of  her  husband, 
was  properly  dismissed. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

Petition  by  Mary  Bringburst  Flanagan, 
trustee,  to  annul  and  vacate  a  decree  appoint- 
ing her  trustee  in  the  estate  of  Alice  B. 
Bringburst,  deceased,  and  directing  the  en- 
try of  security.  From  an  order  dismissing 
the  petition,  petitioner  appeals.    Affirmed. 

Tbe  facts  appear  from  the  following  opin- 
ion of  Lamorelle,  J.,  in  tbe  orphans'  court: 

This  is  a  petition  to  annul  and  vacate  a  de- 
cree appointmg  a  trustee  and  directing  the  en- 
try of  security?  Alice  B.  Bringburst,  who  died 
in  the  year  1906,  bequeathed  and  devised  her 
residuary  estate  unto  her  daughter,  Mary  Bring- 
burst Flanagan,  in  the  language  following: 

"Sixth.  All  the  rest  of  residue  and  remainder 
of  my  estate  real  and  personal  and  mixed  of 
whatsoever  kind  and  wheresoever  the  same  may 
be  situate  I  give  and  devise  and  bequeath  to 
my  daughter  Mary  Bringburst  Flanagan  to  be 
for  her  sole  separate  and  exclusive  use  notwith- 
standing any  coverture  free  and  clear  of  inter- 
ruption intervention  or  control  of  her  husband 
or  any  husband  she  may  have  and  without  the 
said  property  and  estate  shall  be  held  and  used 
and  enjoyed  by  the  said  Mary  Bringburst  Flana- 


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in  ATIANTIC  REFORTEiB 


(Pa. 


gan  in  all  respects  and  in  as  fall  and  ample  a 
manner  notwithstanding  her  coverture  as  if  she 
were  sole  and  iinmarri^." 

In  1907  Mary  Bringhiirat  Flanagan,  the 
daughter,  being  desirous  of  selling  some  of  the 
realty  forming  part  of  the  residue  of  the  estate, 
petitioned  this  court  for  leave  to  appoint  her 
trustee  for  herself  to  make  auch  sale,  and  to 
give  her  oivn  bond.  In  due  course  she  was  ap- 
pointed such  trustee,  her  request  to  give  her  own 
bond  refused,  and  security  was  directed  to  be 
entered  in  the  sum  of  $12,500. 

The  surety  on  the  bond  is  now  deceased,  and 
the  purpose  of  the  present  petition  is  to  termi- 
nate the  trust,  release  the  bondsman,  and  receive 
from  the  executors  of  her  will  the  sum  «f  some 
$6,600  which  he  in  his  lifetime  held  as  counter 
indemnity.  As  wc  view  the  will,  we  cannot 
grant  the  prayer  of  the  petition. 

At  the  time  of  the  execution  of  the  will  Hary 
Bringhurst  Flanagan  was  married,  and  her 
husband  Barvives.  It  was  the  manifest  intention 
of  testatrix  that  her  daughter  should  bold  the 
estate  for  her  sole,  separate,  and  exclusive  use, 
and  while  the  latter  part  of  the  clause  wherein 
and  whereby  the  gift  is  made  is  not  altogether 
<n  harmony  with  the  gift  itself,  we  do  not  feel 
that  there  is  such  a  contradiction  as  will  enable 
us  to  ignore  the  legal  effect  of  the  technical  lan- 
gnage  used  by  the  testatrix. 

Tb»  lower  court  dlsmiaaed  the  petition. 
The  trustee  appealed. 

Argued  before  BROWN,  C.  J.,  and  STE3W- 
ART.  MOSOHZISKER,  FRAZER  and  WAL- 
UNO,  JJ. 

B.  Hnnn,  Jr.,  of  Philadelphia,  for  appellant 

PER  CURIAM.  Though  the  lagt  clause  of 
the  sixth  paragraph  of  the  will  of  testatrix 
Is  apparently  contradictory  of  what  immedi- 
ately precedes  it,  her  main  intent  that  a 
trust  should  be  created  for  her  daughter's 
flole^  separate,  and  exclusive  use  Is  clearly 
stated,  and  the  decree  Is  affirmed,  at  appel- 
lant's costs,  on  the  opinion  of  the  court  be- 
low directing  it  to  be  entered. 


(287  Pa.  517) 

MILI/ER  V.  WEST  JERSEY  &  S.  8.  R.  CO. 

(Supreme   Court   of   Pennsylvania.     April   16, 
1917.) 

Railboads  «=»327(3)— Oradk  Grobbirg  Acci- 
dent— CONTRIBTTTORT  NBOLIOENCK. 

One  who  before  stepping  upon  a  track  at  a 

§rade  crossing  had  an  unobstructed  view  for 
67  feet,  and  who,  if  he  had  then  looked,  must 
have  seen  the  approaching  electric  express  train 
by  which  he  was  atrack,  was  negligent. 

Appeal  from  Court  o£  Common  Pleaa, 
Philadelphia  County. 

Trespass  by  Elizabeth  H.  Miller,  admin- 
istratrix of  the  estate  of  Franklin  0.  Miller, 
deceased,  against  the  West  Jersey  &  Sea- 
shore Railroad  Company,  to  recover  for  the 
death  of  plaintiff's  husband.  Verdict  for 
the  plaintiff  for  $25,000,  Judgment  for  de- 
fendant non  obstante  veredicto,  and  plain- 
tiff appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSOHZISKER,  FRAZER,  and  WAL- 
MNG,  JJ. 


Jacob  Singer,  David  Bortln  and  Emanuel 
Furth,  all  of  Philadelphia,  for  appellant. 
Sharswood  Brlnton,  of  Philadelphia,  for  ap- 
pellee. 

PER  ODRIAM.  Upon  a  review  of  the  evi- 
dence in  this  case  the  court  below  could 
not  have  avoided  the  conclusion  that  the 
carelessness  of  the  deceased,  when  about  to 
cross  the  railroad  tracks,  was  resijonslble 
for  his  death,  and  the  Judgment  non  ob- 
stante veredicto  Is  affirmed  on  the  follow- 
ing from  the  opinion  directing  it  to  be  en- 
tered: 

"If  the  deceased  did  not  see  the  electric  train 
in  time  to  save  himself,  it  was  because  he  did 
not  look.  Where  a  person  fails  to  see  that 
which  was  plainly  obvious,  such  person  is  clear- 
ly guilty  of  contributory  neglisjence.  The  de- 
ceased must  either  have  seen  the  electric  train 
and  have  taken  his  chances  of  crossing  in  front 
of  it,  or  he  did  not  look.  All  the  facts  in  the 
esse  evidence  that  the  electric  train  was  not  one 
which  came  into  view  after  the  deceased  was 
committed  to  the  act  of  crossing;  it  was  in 
plain  view  at  the  time  that  he  stepped  upon  the 
tracks.  The  deceased  was  not  a  stranger  at 
this  railway  crossing,  as  has  already  been 
shown,  and  his  knowledge  charged  him  with  the 
necessity  of  exercising  special  care  in  crossing 
the  tnicke.  It  was  shown  that  at  the  time  he 
attempted  to  crom  the  train  that  he  expected  ta 
take  would  not  reach  the  station  for  some  eight 
minutes.  Another  point  which  would  appear  t« 
be  perfectly  clear  u  that  for  the  whole  lentth 
of  the  picket  fence  which  separated  the  middle 
south-bound  track  from  the  north-bound  track 
there  was  positively  no  obstruction  of  vision. 
This  fence  by  measurement  was  967  feet.  When 
the  deceased  and  the  witness  Avis  stood  west  of 
the  first  outbound  track,  after  leaving  the  news 
stand  and  before  stepping  upon  the  track,  and 
also  when  they  stood  in  the  15  feet  clear  space 
between  the  two  south-bound  tracks,  they  had 
an  admittedly  perfect,  unobstructed  view  of 
the  length  of  the  fence,  the  967  feet." 

Judgment  affirmed. 


(157  Fa.  tOI 
COMMONWEAI/rn  V.  KEYSTONE  GRAPH- 
ITE CO.  et  aL 

(Supreme  Court  of  Pennsylvania.     Maidi  19. 
1917.) 

1.  JUDICIAI,  Saues  «==>!  —  Mobtoaoks  —  Sau 
— "JoDiciAL  Sale." 

Where  a  corporation  mortgaged  Its  property 
to  a  trust  company  to  secure  a  bond  issue,  a 
sale  by  the  mortgage  trustee  nnder  a  power  of 
sale  contained  in  the  mortgage  to  certain  troa- 
tees  for  the  bondholders,  made  after  the  corpo- 
ration had  sold  its  interest  in  the  mortgaged 
premises,  was  not  a  "judicial  sale." 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  First  and  Sacond  Series.  Jadidal 
Sale.] 

2.  Taxation    «=»682— Tax    Libn— Ehfomb- 
MENT  Against  PuBcnASEB  at  Mobtoaob 

FoBKCLOSrRE  SALE. 

Where  a  lien  for  unpaid  capital  stock  tax- 
es was  entered  against  the  corporation  purchas- 
er of  corporation  property  mortgaged  to  secure 
a  bond  issue,  and  the  property  was  subsequently 
sold  by  the  mortgage  trustee  under  a  power  of 
sale  contained  in  tlie  mortgage  to  certain  trus- 
tees for  bondholders,  the  tax  lien  was  not  there- 
by divested,  and  the  proceeds  of  the  sheriff's  sale 


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LAPINCO  V.  PHILADELPHIA  &  R.  RT.  CO. 


767 


under  such  Ken  were  properly  awarded  to  the 
oommouwcalth,  to  the  exclusion  of  the  trusteea 
for  bondholders. 

App»»nl  from  Court  of  Common  Pleas,  Ches- 
ter County. 

Scire  facias  to  remove  the  lien  of  a  mort- 
gage by  the  Commonwealth  of  Pennsylvania 
against  the  Keystone  Graphite  Company, 
with  notice  to  Hiram  C.  Hlmes  and  others, 
trustees  for  the  bondholders  of  the  New  Phil- 
adelphia Graphite  C(»npany,  terre-tenants. 
On  exceptions  to  the  report  of  an  auditor  dis- 
tributing the  proceeds  of  a  sberlfTs  sale  of 
real  estate.  Dismissed,  and  defendants  ap- 
peal.   AfHrmed. 

Argued  before  BBOWN,  C.  J.,  and  MES- 
TRBZAT,  STEWAUT,  MOSOHZISKER,  and 
WALLING,   JJ. 

Ednrand  Bayly  Seymour,  Jr.,  of  Philadel- 
phia and  Arthur  P.  Reld,  of  West  Chester, 
for  appellants.  Isabel  Darlington  and  Thomas 
S.  Butler,  both  of  West  Chester,  for  the  Com- 
monwealth. 

WALLINa  J.  In  1905  the  New  Phila- 
delphia Graphite  Company,  a  New  Jersey 
corporation,  took  title  to  certain  real  estate  In 
Chester  county.  Pa.,  and  at  the  time  execut- 
ed a  deed  of  trust  In  the  nature  of  a  mortgage 
to  the  Union  Trust  Company  (now  Merchants' 
Union  Trust  Company)  to  secure  an  Issue  of 
bonds  to  the  amount  of  $50,000.  In  1907  tha 
Keystone  Graphite  Company,  a  Delaware 
coriwration,  purchased  the  property  from  the 
New  Philadelphia  Graphite  Company,  subject 
to  the  mortgage.  On  December  14,  1910,  the 
commonwealth  entered  Its  lien  for  capital 
stock  taxes  for  the  years  1907  to  1910  against 
the  Keystone  Graphite  Company.  On  De- 
cember 21, 1910,  the  trust  company,  pursuant 
to  authority  contained  In  the  mortgage,  sold 
the  pr<H)erty  at  public  auction  for  $5,000  to 
certain  parties  as  trustees  for  the  bondhold- 
ers. In  1912  the  commonwealth  Issued  a  scire 
facias  on  Its  lien,  and  the  last-named  trus- 
tees, being  served  as  terre-tenants,  made  de- 
fense on  the  ground  that  plalntliTs  lien  had 
been  divested  by  the  public  sale.  Such  de- 
fense was  held  Insufficient,  and  Judgment  was 
entered  for  the  commonwealth  in  the  court  be- 
lowi,  which  was  affirmed  by  this  court  In  Com.  - 
V.  Keystone  Graphite  Co.,  248  Pa.  844,  93 
AtL  1071.  It  Is  there  held  that  the  sale  on 
the  mor^^age,  not  being  a  Judicial  sale>  did 
not  divest  the  plaintifTs  lien. 

[1,2]  In  1915  the  commonwealth  issued  a 
levari  facias  on  the  Judgment,  by  virtue  of 
which  the  sheriff  sold  the  real  estate  to  trus- 
tees for  the  bondholders  for  |1,860.  The 
court  below  confirmed  the  auditor's  report 
awarding  the  fund,  less  costs,  etc.,  to  the  com- 
monwealth on  its  judgment.  From  this  de- 
cree the  trustees  for  the  bondholders ,  took 
this  appeal.  The  fund  was  rightly  distribut- 
ed.   The  public  sale  on  the  mortgage  divest- 


ed its  lien  and  left  that  of  the  commonwealth 
the  first  lien  against  the  property.  The  sher- 
iff sold  the  land  as  the  property  of  the  Key- 
stone Graphite  Company,  and  his  deed  con- 
veyed whatever  interest  the  company  had  in 
the  land  when  the  Hen  of  the  commonwealth 
was  filed;  and,  so  far  as  relates  to  this  dis- 
tribution, it  is  not  Important  whether  his 
deed  carried  a  fee  or  merely  an  equity  of  re- 
demption. The  sherifTs  sale  certainly  did 
not  divest  the  lien  of  the  mortgage,  and  hence 
the  holders  of  the  bonds  thereunder  have  no 
claim  on  this  fund.  It  is  res  adjudlcata  that 
the  commonwealth's  lien  was  not  divested  by 
the  sale  on  the  mortgage,  and  hence  the  pur- 
chasers of  the  land  at  that  sale  have  no  claim 
here.  One  who  buys  land  subject  to  a  lien 
does  not  thereby  become  entitled  to  the  pro- 
ceeds derived  from  a  subsequent  Judicial  sale 
of  the  same  property  on  such  lien. 

There  is  nothing  in  the  record  to  support 
a  <daim  by  the  purchasers  at  the  sheriff's 
sale  to  recover  back  in  this  distribution  the- 
consideration  they  there  paid  for  the  proper- 
ty. The  rule  of  caveat  emptor  applies  to  such 
sale;  and,  aside  from  that  there  is  nothing 
to  indicate  that  the  sheriff's  vendees  did  not 
acquire  a  valid  title.  In  our  opinion  the 
question  of  the  statutory  right  of  the  com- 
monwealth to  enforce  liens  filed  for  such 
taxes,  to  the  prejudice  of  the  holders  of  prior 
mortgages  whether  given  tor  purchase  money 
or  otherwise,  is  not  involved  in  this  case. 

The  assignment  of  error  Is  overruled,  andi 
the  order  of  distribution  is  affirmed,  at  the 
costs  of  the  appellants. 


(25T  Pa.  344) 

LAPINCO  V.  PHILADELPHIA  &  R.  RT.  CO. 

(Supreme    Court    of   Pennsylvania.      April    9. 
1917.) 

1.  Railboads  <S=»34e(l)— Cbossiwg  Accident 
—Negligence— Evidence. 

In  action  against  railroad  for  personal  in- 
jury when  struck  by  locomotive,  evidence  held 
insufficient  to  overcome  presumption  tliat  de- 
fendant was  not  negligent  in  failing  to  provide 
proper  headlight,  so  that  trial  judge  should  have 
directed  finding  that  headlight  was  burning. 

2.  RAII.BOAD8  «s»333(l)— Caossina  AcciDKirt 
—Contributory  Nkouobnob. 

Where  plaintiff  stopped,  looked,  and  listened 
at  a  track  next  to  the  one  on  which  the  train 
which  struck  him  approached,  and  did  not  see 
the  engine,  though  he  bad  an  unobstructed  view 
for  160  feet,  and  immediately  started  across  the- 
track,  and  wa»  struck,  he  was  contributorily 
negligent. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Jacbim  Lapinco  against  the 
Philadelphia  &  Reading  Railway  Company  to 
recover  damages  for  personal  Injury.  Ver- 
dict for  plaintiff  for  f4,500,  and  Judgment 
thereon,  and  defendant  appeals.  Reversed, 
and  Judgment  entered  for  defendant. 

Argued  before  BROWN.  C.  J.,  and  MES- 
TREZAT,  potter,  STEWART,  and  FRAZ- 
ER,  JJ. 


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William  Clarke  Mason,  of  Philadelphia,  for 
appellant  William  T.  Connor  and  John  R. 
K.  Scott,  both  of  Philadelphia,  for  appellee. 

BROWN,  O.  J.  The  plaintiff  was  struck 
by  an  engine  of  the  defendant  on  November 
29,  1913,  abont  5  o'clock  In  the  afternoon,  at 
what  the  Jury  found  was  a  permissible  cross- 
ing In  the  dty  of  CoatesvlUe.  For  the  injn 
rles  sustained  he  recovered  a  verdict;  the 
Jnry  having  found  that  the  defendant  had 
negligently  operated  its  engine  at  the  jmint 
where  he  was  hurt,  and  that  he  had  exercised 
dae  care  in  attempting  to  cross  the  track. 
On  this  appeal  from  the  Judgment  on  the  ver- 
dict the  contention  of  the  appellant  is  that 
its  motion  for  a  nonsuit  ought  to  have  pre- 
vailed, or  a  verdict  should  have  been  direct- 
ed in  its  favor,  as  ao  negligence  on  Its  part 
had  been  shown,  and  the  contributory  negli- 
gence of  the  plaintiff  was  so  clear  that  the 
trial  Judge  should  have  declared  it  to  be  a 
bar  to  his  right  to  recover. 

[1,2]  Alongside  the  track  on  which  the 
plaintiff  was  struck  there  are  two  sidings. 
After  crossing  over  the  first,  he  stepped  on 
the  second  and  looked  up  and  down  the 
main  track.  It  was  dark,  but  lights  were 
bnmlng,  and  the  plaintiff  testified  he  could 
see  a  distance  of  160  feet  in  the  direction 
from  which  the  «igine  was  coming.  He 
stated  distinctly  that  there  was  nothing  to 
obstruct  his  view  down  the  track  for  that 
distance.  According  to  the  testimony  of  wit- 
nesses called  by  the  defendant,  the  distance 
of  the  unobstructed  view,  from  actual  meas- 
urements <m  the  ground,  was  much  greater. 
With  the  unobstructed  view  of  at  least  160 
feet  before  him,  the  plaintiff  started  toward 
the  third  or  main  track,  and  the  instant  he 
put  his  foot  on  the  first  raU  the  engine  ran 
over  it  He  testified  that  from  the  time  he 
started  from  the  siding  or  second  track  he 
kei>t  on  looking  and  listening,  but  neither 
heard  nor  saw  the  approaching  engine.  On 
the  testimony  which  he  submitted  as  to  its 
speed  and  the  failure  to  give  notice  of  Its  ap- 
proach, by  bell  or  whistle,  it  may  be  conced- 
ed tliat  the  question  of  the  defendant's  neg- 
ligence was  for  the  jury ;  but  as  the  plaintiff 
was  bound  not  only  to  listen,  but  to  look,  the 
only  rational  conclusion  dedudble  from  ali 
the  testimony  in  the  case  is  that  he  failed  to 
look  as  he  approached  the  track  on  which  be 
was  struck.  If  be  had  looked,  he  must  have 
seen  the  engine  coming  towards  him.    Ne- 


ther be  nor  either  of  his  two  witnesses  who 
saw  the  acddrat  testified  that  there  was  not 
a  headlight  burning  on  the  locomotive.  Nei- 
ther of  them  said  anything  about  a  head- 
light, and  their  testimony,  given  its  full  ef- 
fect, was  merely  that  they  had  not  seen  the 
engine.  There  was  no  presumption  that  the 
defendant  had  failed  to  have  a  burning  head- 
light on  it  and  the  burden  of  showing  negli- 
gence in  this  respect  was  upon  the  plaintiff. 
Hanna  v.  Philadelphia  &  Reading  Ry.  Co.,  213 
Pa.  157,  62  Atl.  643,  4  I*  R.  A,  (N.  S.)  344. 

The  negative  testimony  of  plaintiff  and  his 
witnesses,  to  which  we  have  referred,  was 
not  sufficient  to  make  out  a  charge  of  negli- 
gence as  to  the  headUght,  and  a  finding  by 
the  Jury  that  one  was  not  burning  on  the  en- 
gine at  the  time  of  the  accident  was  not  only 
without  evidence  on  the  part  of  the  plaintiff 
to  sustain  it,  but  was  in  the  teeth  of  nn- 
Impeached  evidence  submitted  by  the  defend- 
ant that  the  engine  was  equipped  with  a 
proper  light  Nalin,  the  engineer,  testified 
that  there  was  a  burning  headlight  on  his  en- 
gine, In  front  of  a  reflector;  Gray,  his  fire- 
man, said  the  headlight  was  burning  bright- 
ly; and  Thompson,  the  conductor,  said  he 
saw  It  burning.  The  testimony  of  these  three 
witnesses  was  unequivocally  corroborated  by 
Hamish,  Blvans,  and  Williams,  three  of  d»- 
fandant's  brakem^i.  These  six  witnesses 
were  In  a  position  to  see,  and  did  see,  and.  in, 
view  of  their  positive  and  afnrmatlve  testi- 
mony that  the  headlight  was  burning,  witlx 
no  proof  offered  by  the  plaintiff  to  rebut  the 
presumption  that  the  defendant  was  not  neg- 
ligent as  to  this,  the  trial  Judge  should  have 
directed  the  Jury  to  find  that  It  was  burning. 
Knox  V.  Philadelphia  &  Reading  By.  Co.,  202 
Pa.  604,  62  Atl.  90;  Keiser  v.  Lehigh  Valley 
R.  R.  Co.,  212  Pa.  409,  61  AtL  903, 
108  Am.  St  Rep.  872;  Anspach  v.  Philadel- 
phia &  Reading  Ry.  Co.,  225  Pa.  528,  74  AtL 
373,  28  L.  R.  A.  (N.  S.)  382 ;  Charles  ▼.  Le- 
high Valley  R.  R.  Co.,  245  Pa.  496,  91  AtL 
890;  Leader  v.  Northern  Central  Ry.  Co.,  246 
Pa.  452,  92  Aa  690. 

Under  Oarroll  v.  Penna.  R.  R.  Oa,  12 
Wkly.  Notes.  Cas.  348,  and  the  long  line  of 
cases  following  it  down  to  Stoker  v  Philadel- 
phia &  Reading  Ry.  Co.,  254  Pa.  494,  99  AU. 
28,  it  was  the  clear  duty  of  the  court  below 
to  enter  Judgment  for  the  defoidant  non  ob> 
stante  veredicto. 

The  fourth  assignment  of  error  is  sustain- 
ed, and  Judgment  is  here  entered  for  the  de- 
fendant 


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BAKJBB  ▼.  BUSHJTOBI) 


769 


<S1  Vt  «Q 

BAKEB  V.  BUSHFOBD  et  al. 

(Supreme  Court  of  Vermoiit     FranUin. 
Sept  4.  1917.) 

1.  Irsubance  ©=580(1)  —  Vkndob  and  Ptjb- 

CHA8EB  —  RiOBTB    OF    PaBTIES  —  INBUBANOK 
MONCZ. 

Where  premises  vere  sold,  title  to  be  trans- 
ferred on  tne  making  of  certain  payments  and  a 
contemporaneous  mortgage  to  the  vendor  to  se- 
cure the  balance  of  the  consideration,  the  rights 
of  the  parties  in  respect  to  insurance  money 
accruing  from  destruction  by  fire  of  a  building 
on  the  premises  were  the  same  as  they  would 
have  been  if  the  fire  had  occurred  after  ccmvey- 
ance,  the  buyer  bein|:  in  possession  and  having 
performed  all  his  obligations  under  the  contract 
to  date. 

2.  VBNDOB  and    PtJBCHABEB   «=>54  —  ESTATES 

OF  Vendob  and  Vendee. 
An  executory  contract  for  the  sale  of  land 
left  the  legal  estate  in  the  vendor,  but,  except  for 
his  interest  in  the  i>roperty  as  security,  the  ven- 
dor held  the  title  in  trust  for  the  vendee,  re- 
garded by  equity  as  the  owner. 
S.  Vendob  and  Pubceaser  <3=>54— RiaHTS  or 

Pabtieb  afteb  Tbansfeb  of  Title. 
After  title  to  land  was  sold  under  an  «x- 
ectttory  contract,  the  vendee  before  he  broke 
any  condition  of  the  contract  was  holder  of  the 
legal  title  and  estate,  and  the  vendor  had  his 
security  in  the  form  <k  a  mortgage  given  him. 

4.  Vendob  and  Pxibchabeb  «=>  182— Payment 
OF  Pbiob— Time— Option  of  Vendee. 

Where  installments  of  the  purchase  price  of 
land  were  all  payable  on  or  before  the  dates  spec- 
ified, the  entire  indebtedness  was  payable  at 
once  at  the  vendee's  option. 

5.  INSDBANOE      ®=>580(1)— PbOCBEDS— VENOOB 

AND  PUBCBASEB— Retention  of  Secubitt— 

Change  in  Fobm. 
Where  a  farm  and  personal  property  were 
aold,  the  vendee  giving  the  vendor  a  chattel 
mortgage  on  all  the  personalty  to  secure  pay- 
ment of  the  first  $1,500  of  the  price,  the  contract 
providing  that  when  such  payment  was  com- 
pleted and  all  conditions  performed  the  vendor 
should  give  the  vendee  a  warranty  deed  of  the 
land,  and  receive  a  mortgage  for  the  balance, 
payable  on  or  before  specified  dates,  the  vendee 
to  keep  the  buildings  and  contents  insured  for 
$1,400  for  benefit  of  the  vendor,  the  insurance 
money  arising  from  loss  by  fire  stood  in  the 
place  of  the  property  destruyed,  to  be  held  for 
appUcatiou  by  the  vendor  which  would  complete 
payment  of  the  debt,  and  the  vendee  could  not 
require  application  thereof  to  the  discharge  of 
the  chattel  mortgage. 

Appeal  in  Chancery,  Franklin  County;  U 
F.  Slack,  Cbancellor. 

Suit  by  David  Baker  against  Calvin  Bush- 
ford  and  BUa  Rushford.  From  a  decree  for 
plaintiff,  defendants  appeaL  Decree  revers- 
ed, and  cause  remanded,  with  direction  that 
the  complaint  be  dismissed. 

Argued  before  MUNSON,  C.  J.,  and  WAX- 
SON,  HAZKI/rON,  POWERS,  and  TAX- 
UOB.  JJ. 

P.  H.  Coleman,  of  Montgomery,  and  A.  B. 
Rowley,  of  Blchford,  for  appellants.  Gay- 
lord  F.  Ladd,  of  liichford,  for  appellee. 

MUNSON,  0.  J.  The  defendants  are  the 
vendors,  and  the  plaintiff  the  assignee  of 
tie  vendee,  of  a  farm  and  personal  property, 
the  sale  of  which  was  evidenced  by  a  writ- 


ten contract,  dated  July  10,  1911.  The  price 
was  $3,000 ;  $200  of  which  was  to  be  paid  on 
or  before  July  10, 1912,  and  $200  on  or  before 
the  10th  of  July  in  ea<di  year  thereafter  until 
all  was  paid.  At  the  date  of  the  contract, 
the  vendee,  Mary  Martin,  gave  the  defendant 
Calvin  a  chattel  mortgage  of  all  tlie  personal 
property  described  in  the  contract,  to  secure 
the  payment  of  the  first  $1,500  of  the  pur- 
chase price.  When  this  payment  was  com- 
pleted, and  all  conditions  performed,  the  ven- 
dors were  to  give  the  vendee  a  warranty 
deed  of  the  land  and  premises,  and  receive  a 
mortgage  deed  of  the  same  to  secure  the  bal- 
ance of  the  annual  payments,  and  the  other 
OHiditions  of  the  contract.  By  the  terms  of 
the  contract  the  vendee  was  to  pay  all  taxes 
afterwards  assessed  on  the  property,  and 
keep  the  buildings  and  contents  insured  for 
$1,400  in  a  specified  company  for  the  benefit 
of  the  vendors.  The  vendee  and  her  husband 
took  possession  of  the  property  soon  after 
the  execution  of  the  contract,  and  remained 
in  possession  untU  October  14,  1912,  on 
which  day  they  assigned  their  interest  in  the 
contract  to  the  plaintiff,  who  thereupon  took 
possession.  The  dwelling  bouse  on  the  prem- 
ises was  destroyed  by  fire  February  21,  1915, 
without  the  fault  of  either  party.  It  was  in- 
sured in  the  required  company  for  $1,000, 
by  a  policy  procured  by  the  plaintiff  and 
made  payable  to  the  plaintiff  and  the  de- 
fendant Calvin;  and  on  the  20th  of  March 
the  loss  was  adjusted  at  $990,  and  covered 
by  a  check  made  payable  to  both  the  Insured. 
The  plaintiff  Indorsed  the  check  and  deliver- 
ed it  to  Calvin,  who  deposited  it  In  a  bank 
in  his  name  as  trustee,  where  it  lias  since  re- 
mained. There  was  nothing  due  under  the 
contract  at  the  time  of  the  fire,  and  $95  had 
been  paid  on  the  installment  next  to  become 
due;  and  all  tax  assessments  had  been  paid. 
It  would  cost  between  $1,600  and  |1,800  to 
replace  the  building.  Bach  party  has  refused 
to  take  the  money  and  rebuild.  The  value 
of  the  land  without  the  building  is  $800.  On 
the  25th  of  March,  1916,  the  plainUS  gave 
the  defendants  written  directions  to  make 
an  immediate  application  of  the  Insurance 
money  <mi  the  jmyments  to  become  due  under 
the  contract  The  bill  prays  to  have  the 
money  so  applied,  and  the  defendants  ordered 
to  make  conveyance  of  the  premises  and  dis- 
charge the  chattel  mortgage.  The  defend- 
ants have  filed  a  cross-bill,  praying  that  the 
plaintiff  be  foredoeed  of  his  equity  in  the 
premises.  The  decree  below  is  for  the  plain- 
tiff. It  was  held  in  Thorp  v.  Oroto,  79  Vt 
390,  65  AU.  662,  10  U  B.  A.  (N.  S.)  1166,  118 
Am.  St  Bep.  961,  9  Ann.  Cas.  58,  on  the  facta 
there  presented,  that  the  mortgagee  should 
hold  the  insurance  money  and  apply  it  to  ex- 
tinguish the  mortgage  debt,  including  Inter- 
est, as  fast  as  the  same  became  due.  The 
plaintiff  claims  that  this  decision  is  conclu- 
sive in  Ids  favor.    The  defendant  does  not 


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101  ATLANTIC  RBPOBTBB 


(Vt 


question  tbe  correctness  of  the  decision,  but 
contends  that  the  trro  cases  are  dearly  dis- 
tinguishable. 

[1-S]  The  relations  of  these  parties  at  the 
time  of  the  fire  were  those  of  vendor  and 
vendee,  under  a  contract  of  sale  which  pro- 
vided for  a  subsequent  transfer  of  the  title 
on  the  making  of  certain  payments,  and  a 
contemporaneous  mortgage  of  the  premises  to 
the  vendor  to  secure  the  balance  of  the  oousld- 
eration.  But  the  rights  of  the  parties  are  the 
same  as  they  would  have  been  if  the  fire  had 
occurred  after  the  conveyance;  other  condi- 
tions remaining  tbe  same.  This  was  in  law 
an  executory  contract,  which  left  the  legal 
estate  In  the  vendor;  but,  except  for  his  in- 
terest In  the  property  as  security,  the  vendor 
held  the  title  in  trust  for  the  vendee,  whom 
equity  regards  as  the  owner.  But  after  the 
transfers,  and  before  condition  broken,  the 
vendee  would  be  the  holder  of  the  legal  title 
and  estate,  and  the  vendor  would  have  his  se- 
curity In  the  form  of  a  mortgage.  So  the 
case  is  not  distinguished  from  Thorp  v. 
Croto  by  the  fact  that  the  latter  was  a  suit 
between  mortgagor  and  mortgagee. 

But  there  are  obvious  differences  between 
the  case  at  bar  and  Thorp  v.  Croto.  The 
facts  presented  In  the  Thorp  Case  disclose 
nothing  as  to  the  adequacy  or  Inadequacy  of 
tlie  security,  and  no  question  as  to  the  suffi- 
ciency of  the  security  seems  to  have  been 
raised.  Nothing  is  said  in  either  the  major- 
ity or  the  minority  opinion  regarding  tbe 
question  of  adequacy  as  a  matter  bearing 
upon  the  decision  rendered.  Here,  the  de- 
fendants refer  to  the  facts  reported  as  show- 
ing an  inadequacy  of  security,  and  claim  that 
this  Inadequacy  distinguishes  the  case  from 
the  Thorp  Case. 

[4]  The  defendants  say  further  of  the 
Thorp  Case  that  "both  the  mortgagor  and 
mortgagee  were  billing  that  the  money  should 
be  applied  as  payment,  and  the  court  treated 
it  as  the  parties  did."  But  the  dissent  was 
put  upon  the  ground  that  the  mortgagee  was 
entitled  to  hold  the  insurance  money  In  place 
of  the  property  destroyed;  so  this  aspect  of 
the  subject  must  have  entered  into  the 
court's  consideration  of  the  case.  Tbe  cases 
are  alike  in  that  no  part  of  tbe  debt  was  due 
when  the  Insurance  money  was  received,  but 
they  differ  as  to  the  terms  of  payment  In 
the  Thorp  Case  there  was  no  provision  en- 
abling the  mortgagor  to  reguire  an  accept- 
ance of  payment  In  advance  of  its  becoming 
dua  Here  the  installments  of  the  purchase 
money  were  all  payable  on  or  before  the 
dates  specified,  so  that  the  entire  Indebted- 
ness was  payable  at  once  at  tbe  option  of 
the  vendee;  and  the  vendors  were  directed 
"to  immediately  apply  said  sum  •  •  • 
upon  the  payments  to  become  due  under  said 
contract." 

There  is  another  difference  to  be  consid- 


ered In  connection  with  the  vendee's  option. 
In  the  Thorp  Case  there  wasno  intermediate 
condition  on  the  fulfillment  of  which  the  debt- 
or was  entitled  to  a  change  in  the  form  and 
substance  of  the  security.  Under  this  con- 
tract, the  payment  of  $1,500  of  the  purchase 
price  would  entitle  the  vendee  to  a  discharge 
of  the  mortgage  on  the  chattels,  and  to  » 
conveyance  of  the  title  to  the  realty  upon  bis 
giving  a  mortgage  of  the  same  to  secure  the 
balance  of  the  debt  So  this  provision  for  an 
exercise  of  the  vendee's  option  divides  the 
principal  Into  two  parts,  as  to  which  the 
rights  of  the  vendor  touching  the  securlt}- 
are  not  Identical. 

[5]  In  the  absence  of  an  agreement  ft>r  a 
release  of  some  part  of  the  security  on  the 
payment  of  a  portion  of  the  debt  secured,  the 
creditor  is  entitled  to  retain  the  entire  secu- 
rity until  the  debt  Is  fully  paid.  If  the  in- 
surance money  stands  In  place  of  the  proper- 
ty destroyed  It  goes  with  the  land,  and  re- 
tains in  equity  the  quality  of  Indivisibility ; 
and  the  creditor  Is  entitled  to  retain  the  en- 
tire security  notwithstanding  the  change  in 
form  of  a  part  of  it  This  would  require 
that  the  insurance  money  be  held  for  an  ap- 
plication which  would  complete  the  payment 
of  the  debt  The  question  thai  arises  wheth- 
er the  vendee's  right  to  a  transfer  of  the  ti- 
tle and  discharge  of  the  chattel  mortgage  on 
the  payment  of  a  sum  less  than  the  entire 
debt,  in  connection  with  his  privilege  of  pay- 
ing a  part  or  all  of  the  notes  at  any  time  be- 
fore their  maturity,  entitles  him  to  use  the 
insurance  money  to  complete  such  i>artliU 
payment  We  think  not  A  part  of  the  notes 
could  not  be  paid  by  a  tender  of  funds  which 
the  creditor  was  entitled  to  hold  as  security 
for  the  payment  of  all  the  notes.  This  view 
accords  with  the  terms  and  nature  of  tbe 
provision  regarding  insurance.  The  vendee 
is  to  keep  the  buildings  insured  for  the  bene- 
fit of  the  vendor.  The  insurance  is  for  tbe 
benefit  of  both  parties,  but  is  primarily  for 
the  benefit  of  the  vendor  as  security  bolder 
of  tbe  property  insured,  and  inures  to  tbe 
benefit  of  the  vendee  through  the  reduction 
of  bis  debt.  The  vendee  cannot  require  au 
application  of  it  which  would  give  him  tbe 
primary  benefit  and  leave  the  vendor  Inade- 
quately secured.  The  application  must  be 
such  as  vrill  preserve  the  equities  of  the  ven- 
dor or  mortgagee  In  the  given  case.  Our 
disposition  of  the  question  presented  here  Is 
not  Inconsistent  with  the  decision  In  Thorp 
V.  Croto  as  limited  by  the  facts  of  that  case ; 
and  It  accords  with  the  court's  view,  else- 
where expressed,  that  the  proceeds  of  a  policy 
of  insurance  on  mortgaged  property  are  to  be 
substituted  for  the  property  destroyed.  Pow- 
ers V.  N.  B.  Fire  Ins.  Co.,  69  Vt  404,  38  AU. 
148. 

Decree  reversed  and  cause  remanded,  with 
direction  that  the  complaint  be  dismissed. 


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OAB.TER  V.  SUBURBAN  WATER  CO. 


771 


on  Md.  ti) 

CARTER  T.  SUBURBAN  WATER  CO. 

(No.  66.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917.) 

1.  Waters  and  Water  Coubses  €=3203(13) — 
Shutting  off  Watsb  Supply  —  Ijunwe- 

TION. 

An  injunction  is  the  proper  remedy  to  pre- 
vent the  abutting  off  of  water  by  a  water  com- 
pany where  the  consumer  denies  in  good  faith 
the  amount  of  the  charge. 

2.  Watebs  and  Wateb  Coitbses  «=3203(13)— 
Wateb  Compahy— Right  to  Shut  oft  Wa- 
teb. 

Although  a  water  company  may  adopt  a 
rule  that  water  may  be  shut  off  for  nonpayment 
therefor,  it  cannot  arbitrarily  shut  off  the 
consumer's  supply  where  the  amount  claimed 
ia  a  matter  of  just  dispute. 

3.  Watebs  and  Water  Cotjbses  «=>203(6)— 
Watkb   Companies— P0BUO  Sebvick  Com- 

laSSIONS— JUBISDICTION. 

The  Public  Service  Commission,  under  Acts 
1910,  c.  180,  is  not  invested  with '  power  to 
determine  controversies  between  defendant  wa- 
ter company  and  plaintiff  consumer  as  to  cor- 
rectness of  the  bills  rendered. 

4.  Waters  and  Water  Courses  i8=>203(13)— 
Refusal  to  Supply  Water— Jurisdiction. 

Although  it  be  conceded  that  the  Public 
Service  Commission  has  jurisdiction  in  cases  in- 
volving the  correctness  of  charges  for  water,  it 
could  not  deprive  a  court  of  equity  of  its  orig- 
inal jurisdiction  to  grant  an  injunction  for  re- 
fusal to  supply  water. 

Appeal  from  Circuit  Court  of  Baltimore 
City ;  H.  Arthur  Stump,  Ju4ge. 

Bin  by  John  F.  Carter  against  the  Sub- 
urban Water  Company.  Prom  an  order  dis- 
missing plaintiff's  bill  and  dissolving  the  in- 
junction Issued,  he  appeals.  Reversed,  with 
costs,  and  cause  remanded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  PATTISON,  UllNER,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Robert  Biggs,  of  Baltimore,  for  appellant. 
Daniel  R.  Randall,  of  Baltimore  (U.  E.  liCe 
Marshall,  of  Baltimore,  on  the  brief),  for  ap- 
pellee. 

BURKE,  J.  John  F.  Carter,  the  appellant, 
is  the  owner  of  71  dwelling  houses,  which  are 
located  In  West  Arlington,  Baltimore  county, 
Md.,  on  certain  avenues  and  roads  mentioned 
In  the  bill  filed  tn  this  case.  The  appellee 
Is  a  public  service  corporation,  having  its 
principal  olUce  In  Baltimore  city,  and  ia  en- 
gaged in  the  business  of  furnishing  water  to 
the  appellant  and  many  other  property  own- 
ers In  and  about  West  Arlington.  The  71 
lionses  of  the  appellant  are  connected  with 
the  water  mains  of  the. appellee,  and  secure 
tbejlr  supply  of  water  for  drinking  and  house- 
liold  purposes  from  them,  and  have  no  other 
source  of  supply  from  which  water  for  drink- 
ing and  household  purposes  may  be  secured- 
Dnring  tt»e  quarter  ending  October  30,  1916, 
tbe  defendant-  repeatedly  failed  to  supply 
said  boui&«s  with  a  suitable  quantity  of  water, 
and  the  appellant  was  subjected  to  damage 


and  loss  as  the  result  of  the  irregular  sup- 
ply of  water  furnished  by  the  appellee  to 
said  houses.  On  the  1st  day  of  October,  1910, 
the  appellee  furnished  the  appellant  a  bill, 
amounting  to  $291.42,  for  water  furnished 
said  houses.  The  appellant  disputed  the  bill, 
and  claimed  tlie  legal  right  to  deduct  there- 
from the  losses  sustained  by  him  as  the  re- 
sult of  the  failure  of  the  appellee  to  furnish 
an  adequate  supply  of  water  for  drlnldug 
and  household  purposes — 
"but  expressed  his  willingness  to  adjust  the 
said  accounts  with  the  defendant  and  to  pay  it 
such  sum  of  money  as  would  reasonably  and 
fairly  represent  the  proper  charges  for  the  serv- 
ices rendered  by  the  defendant;  that  the  said 
defendant,  however,  positively  refused  even  to 
consider  the  claim  of  your  orator,  and  also 
notified  your  orator  that  unless  the  said  bills 
as  rendered  are  paid  on  or  before  10  o'clook  on 
Tuesday  the  10th  day  of  October,  1916,  it 
would  cut  off  the  supply  from  all  the  said 
houses,  and  leave  them  and  the  tenants  therein 
without  any  supply  of  water  for  any  purpose 
whatever." 

The  appellee  Is  insolTcnt 

The  bill  in  this  case  was  filed  on  October 
9,  1916,  and  set  out  substantially  tbe  facts 
above  stated,  and  prayed  for  an  Injunction 
against  the  appellee,  Its  officers,  agents,  and 
servants,  restraining  them  from  cutting  off 
the  supply  of  water  from  the  houses  or  any 
of  them,  and  for  other  and  further  relief. 
An  injunction  was  issued  on  October  9,  1916, 
as  prayed;  the  appellant  first  having  filed  an 
approved  bond  in  the  penalty  of  $2,000  as 
required  by  the  order  of  court.  On  December 
2,  1916,  tbe  defendant  demurred  to  the  biU 
upon  the  groimd  that  the  plaintiff  "has  a 
plain,  adequate,  and  complete  remedy  at  law." 
On  the  6th  day  of  February,  1017,  the  court 
passed  an  order  dismissing  the  bill  and  dis- 
solving the  Injunction,  and  from  that  order 
this  appeal  was  taken.  The  appellant  filed 
an  approved  appeal  bond  which  operated  to 
suspend  the  effect  of  the  order. 

[1]  The  single  question  presented  by  the 
appeal  Is  this:  Upon  the  facts  stated  in  the 
bill,  was  the  plaintiff'  entitled  to  the  injunc- 
tion prayed  for?  It  is  to  be  observed  that 
this  is'  not  a  simple,  and  perhaps  a  common 
case,  where  a  water  company  shuts  off  or 
threatens  to  shut  off  the  supply  of  water 
from  a  consumer  for  nonpayment  of  the 
amount  due  for  water  supplied^ 

[2]  It  is  now  well  settled  that  a  water 
company  may  adopt,  as  a 'reasonable  regula- 
tion for  the  conduct  of  its  business,  a  rule 
providing  that  the  water  supplied  to  a  cus- 
todier may  be  shut  off  for  nonpayment  there- 
for. City  of  Mansfield  r.  Humphreys  Mfg.  Co., 
82  Ohio  St  216,  92  N.  B.  238,  31  U  R.  A.  (N. 
S.)  301, 19  Ann.  Cas.  842 ;  Shirais  v.  Eiwlng,  48 
Kan.  170,  29  Pac.  820;  McDanlel  v.  Spring- 
field Waterworks  Co.,  48  Mo.  App.  273; 
Turner  v.  Revere  Water  Co.,  171  Mass.  329, 
50  N.  E.  634,  40  L.  R.  A.  657,  68  Am.  St  Rep. 
432.     But  it  is  a  case  of  dispute  as  to  the 


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101  AXLiANTIC  REPOUTBB 


(Ud. 


amotint  dne,  where  the  appellant  had  ex- 
pressed himself  ready  and  willing  to  adjust 
and  pay  the  amount  for  which  he  Is  liable, 
and  where  the  company  declines  to  accept 
anything  less  than  the  amounts  of  the  blUs 
rendered,  and  threatens  to  shut  off  the  water 
oa  a  certain  day  unless  the  bills  are  paid. 
The  courts  appear  to  be  quite  uniform  in 
holding  that  a  water  oompany  cannot  ar- 
bitrarily shut  off  the  consumer's  supply  when 
the  amount  claimed  Is  a  matter  of  Just  dis- 
pute. Cox  T.  aty  of  Cynthlana,  123  Ky.  363, 
96  S.  W.  456;  Wood  v.  City  of  Auburn,  87 
Me.  287,  32  Aa  906,  29  L.  K.  A.  376 ;  Turner 
V.  Revere  Water  Co.,  171  Mass.  329,  50  N.  B. 
634,  40  Ia  R.  A.  667,  68  Am.  St  Rep.  432. 

In  Poole  V.  Paris  Mountain  Water  Co.,  81 
&  C.  438,  62  S.  E.  874,  128  Am.  St  B«p.  923. 
the  court  said: 

"While  a  public  serrice  water  company  has 
the  right  to  cut  off  a  consumer'a  water  supply 
for  nonpayment  of  recent  and  just  bills  for  wa- 
ter rents,  and  may  refuse  to  engage  to  furnish 
further  supply  until  said  bills  are  paid,  the 
right  cannot  be  exercised  so  as  to  coerce  the 
consumer  into  paying  a  bill  which  is  unjust  or 
which  the  consumer  in  good  faith  and  with 
show  of  reason  disputes,  by  denying  him  such 
a  prime  necessity  of  life  as  water,  when  he 
offers  to  comply  with  the  reasonable  rules  of 
the  company  as  to  such  supply  for  the  current 
term." 

The  same  principle  Is  announced  in  Wash- 
ington v.  Washington  Water  Co.,  70  N.  J. 
Bq.  254,  62  Atl.  390.  That  an  injunction  Is 
the  proper  remedy  to  prevent  the  shutting  off 
of  the  water  In  cases  where  the  consumer 
denies  in  good  faith  either  his  liability  or 
the  amount  of  the  charge  appears  to  be  well 
established  by  the  authorities.  Edwards  v. 
MilledgevlUe  Water  Co.,  116  Ga.  201,  42  S. 
B.  417;  McBntee  v.  Kingston  Water  Co.,  1&5 
N.  Y.  27,  58  N.  E.  785;  American  Conduit 
Co.  V.  Kensington  Water  Ca,  234  Pa.  20S, 
83  Atl.  70. 

The  occupants  of  these  houses  must  have 
water  dally  and  hourly.  It  Is  a  prime  ne- 
cessity of  comfort  and  health,  and  to  suddenly 
shut  off  the  water  in  order  to  coerce  the  own- 
er to  pay  an  unjust  or  a  disputed  bill  would 
be  not  only  a  violation  of  his  legal  rights, 
but  would  subject  hliu  to  serious  injury,  and 
audi  injury  as  the  owner  would  likely  sus- 
tain before  he  oould  be  compensated  In  an 
action  at  law  even  against  a  solvent  corpora- 
tion is  snffident  to  furnish  the  equity  for  an 
application  for  on  injunction.  In  Sickles  v. 
Manhattan  Oaa  light  Co.,  64  How.  Prac. 
(N.  Y.)  S3,  it  appears  that  Gen.  Sickles  ap- 
plied for  an  injunctl(m  to  restrain  the  de- 
fendant from  cutting  off  the  supply  of  gas 
from  his  residence.  He  alleged  that  an  im- 
proper bill  had  been  presented  to  him,  and 
that  be  bad  offered  to  pay  for  the  gas  con- 
sumed, but  that  the  company  refused  to  ac- 
cept and  threatened  to  remove  the  meter  and 
shut  off  the  gas.    Upon  these  facts  the  court 


held  that  he  was  entitled  to  a  preliminary 
Injunction. 

[3, 4]  It  la  contended  that  the  Fiublic  Serv- 
ice Commission,  under  Acts  1910,  c.  180,  has 
exclusive  jurisdiction  over  the  subject-mat- 
ter of  this  suit,  and  has  the  power  to  grant 
the  plaintiff  full  and  complete  relief.  We  do 
not  find  that  the  Public  Service  Commission 
is  Invested  with  the  power  to  bear  and  de- 
termine the  controversy  between  the  parties 
as  to  the  correctness  of  the  bills  rendered,  or 
to  determine  what  amount  the  plaintiff  owes. 
But  if  that  power  be  conceded,  the  court  of 
equity  would  not  for  that  reason  be  deprived 
of  its  original  jurisdiction  to  grant  tbe  in- 
junction. It  has  been  long  since  settled  that, 
where  a  court  of  equity  has  original  juris- 
diction, and  a  statute  confers  upon  the  com- 
mon-law courts  a  similar  power,  the  jurisdic- 
tion of  equity  is  not  thereby  ousted.  Barnes 
V.  Compton,  8  GiU,  398;  Sliryock  v.  Morris, 
76  Md.  72,  23  Aa  68. 

Order  reversed,  wltb  costs,  and  cause  re- 
manded. 

cm  Hd.  Ml) 
HUBBARD  V.  HUBBARD.     (No.  48.) 

(Court  of  Appeals  of  Maryland.    June  28, 
19170 

1.  Husband  and  Wipe  €=>297— Action  fob 
Alimony— Evidence— SumoiBNCT. 

In  a  suit  for  alimony,  held,  under  the  ev- 
idence, that  after  tbe  dismissal  of  a  prior  bill 
for  divorce  there  was  at  least  a  partial  recon- 
ciliation followed  by  the  husband's  leaving  and 
not  returning. 

2.  Husband  and  Whs  «s»288  —  Smr  fob 
AxiuoNT — Defense. 

That  the  wife  bad  her  husband  arrested,  and 
when  they  were  before  the  magistrate  had  ask- 
ed, in  anticipation  of  the  husband's  returning 
to  their  borne,  to  be  afforded  police  protection, 
would  not  justify  a  total  failure  to  make  any 
provision  for  the  support  of  the  wife  barring 
her  suit  for  alimony. 

3.  Husband  and  Wife  ^=>298(8)— Bkcbssivx 
AixowANCE  or  Alimony. 

Where  a  husband  bad  a  weekly  drawing 
account  as  salary  of  $20  a  week,  an  allowance 
to  the  wife  of  $3  a  week  permanent  alimony 
cannot  be  said  to  be  unreasonable. 

Appeal  from  Circuit  Court  of  Baltimore 
City;  Walter  I.  Dawkins,  Judge. 

Bill  by  Florence  Hubbard  against  William 
J.  Hubbard,  Sr.  Decree  for  plaintiff,  and  de- 
fendant appeals.    AfBrmed,  with  costs. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  THOMAS,  PATTISON,  UB- 
NER,  STOCKBRIDOE,  and  CONSTABLE, 
JJ. 

Harry  O.  Kalben  and  David  Ash,  both  of 
Baltimore,  for  appellant  James  Flaegel,  of 
Baltimore,  for  appellee. 

STOCKBRIDGB,  J.  On  the  27th  of  May, 
1915,  a  decree  was  passed  in  a  case  between 
the  same  parties  as  those  who  are  parties  ti> 
this  record,  upon  a  bill  filed  originally  as  a 
bill  for  alimony,  and  subsequently  by  amend- 


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HUBBARD  V.  HUBBARD 


773 


ment  converted  Into  a  bill  for  divorce  a  men- 
sa  et  there.  Three  days  after  the  entry  of 
the  decree  In  that  case  an  appeal  was  taken 
to  this  court,  and,  the  case  having  been  heard 
here,  the  decree  of  the  circuit  court  No.  2 
of  Baltimore  dty  was  affirmed  on  January 
21,  1916. 

Shortly  following  the  decree  of  the  circuit 
court  No.  2  of  Baltimore  city,  to  which  ref- 
erence has  Just  been  made,  namely,  on  July 
1,  1915,  Mrs.  Hubbard  swore  out  a  warrant 
for  the  arrest  of  her  husband,  charging  de- 
sertion and  nonsupport.  Mr.  Hubbard  was 
absent  from  the  city  at  the  time,  and  did 
not  return  to  Baltimore  until  about  the  mid- 
dle of  that  month.  Immediately  upon  his 
return  he  surrendered  himself,  and  the  case 
was  set  for  a  hearing  on  the  19th  or  20th  of 
July.  When  the  matter  was  taken  up  be- 
fore the  magistrate  there  appears  to  have 
been  some  discussion  relative  to  a  possible 
reconciliation  between  the  parties,  and  with- 
out final  action  there,  either  upon  the  theory 
of  a  lack  of  jurisdiction  on  the  part  of  the 
magistrate  or  for  some  ether  reason,  the 
case  was  sent  to  the  grand  jury,  which  sub- 
sequently found  an  indictment.  The  crimi- 
nal proceeding  does  not  appear  to  have  been 
pushed  to  a  conclusion,  but  was  settled  by 
the  state's  attorney  without  prejudice  to  the 
assertion  of  the  rights  of  the  parties  in  an 
equity  court. 

On  September  28,  1916,  the  bill  of  comv 
plaint  in  this  case  was  filed.  It  contains 
three  prayers:  The  first,  for  alimony  pen- 
dente lite  and  permanent  alimony;  the  sec- 
ond, for  an  injunction  to  restrain  Mr.  Hub- 
bard from  disposing  of  certain  household  ef- 
fects and  furniture;  and,  third,  the  general 
prayer  for  relief. 

The  evidence  consists  largely  of  the  testi- 
mony of  the  parties  to  this  suit,  and  is  con- 
tradictory on  material  points.  It  would  be 
idle  to  attempt  to  reconcile  their  stories,  or 
account  for  the  discrepancies  by  any  suppos- 
ed lapse  of  memory.  The  alleged  foundation 
for  Mrs.  Hubbard's  suit  is  this:  That  some 
-time  during  the  month  of  July,  1915,  or  ap- 
proximately two  months  after  the  dismissal 
of  her  former  bill  for  a  divorce,  and  after 
the  hearing  before  the  magistrate  of  the  pro- 
ceeding Instituted  because  of  the  nonsupport, 
Mr.  Hubbard  did  return  to  the  house  on 
Madison  avenue,  which  belonged  to  the  par- 
ties, and  although  not  occupying  the  same 
room  with  his  wife,  did  during  some  week 
or  ten  days  take  his  meals  or  some  of  them 
with  his  wife  and  others  who  were  staying 
at  the  house,  thereby  effecting  at  least  a  par- 
tial reconciliation  of  the  parties. 

Mr.  Hubbard,  on  the  other  hand,  denies 
most  emphatically  that  he  ever  took  a  meal 
at  the  house  or  stayed  in  the  house  over 
night,  and  insists  that  the  various  witnesses 
who  testified  to  his  presence  there  were  mis- 
taken in  their  estimates  of  time  by  at  least 
one  year.  He  does  admit  that  he  paid  a 
brief  visit  to  the  house  for  the  purpose  of 


getting  some  of  his  clothing,  but  Insists  that 
that  waB  all,  and  that  the  total  length  of 
time  that  he  was  so  in  the  house  was  very 
brief. 

In  the  course  of  the  examination  it  was 
admitted  (record,  page  28)  by  the  counsel  for 
Mr.  Hubbard  that  there  was  nothing  to  pre- 
vent him  from  going  heme.  Of  the  conflict- 
ing statements  made  by  Mr.  and  Mrs.  Hub- 
bard, there  is  no  corroboration  of  Mr.  Hub- 
bard's version.  On  the  other  hand,  Mrs. 
Hubbard  is  supported  by  the  testimony  of 
the  son  of  the  parties,  though  apparently 
some  anImuH  existed  between  the  father  and 
son. 

There  Is  further  corroboration  from  three 
apparently  disinterested  witnesses,  a  Mrs. 
Overley,  who  spent  a  considerable  length  of 
time  in  the  house  In  1915,  and  who  details 
with  particularity  the  events  and  actions  of 
Mr.  Hubbard  In  the  house  during  that  week 
or  ten  days,  at  the  expiration  of  which  ho 
left  and  did  not  thereafter  return. 

Mr.  and  Mrs.  Haas  were  neighbors,  living 
on  Madison  avenue.  Their  testimony  is  to 
the  effect  that,  while  neither  of  them  saw 
Mr.  Hubbard  In  the  house,  yet  Mrs.  Haas 
saw  him  entering  the  house,  and  Mr.  Haas 
saw  him  in  the  immediate  neighborhood  and 
had  a  short  conversation  with  him. 

[1]  The  preponderance  of  testimony  there- 
fore is  to  the  effect  that  after  the  dismissal 
of  the  prior  bill  there  was  at  least  a  partial 
reconciliation  of  the  patties,  followed  by  Mr. 
Hubbard's  leaving  the  home,  and  that  he 
has  not  since  returned  to  It 

Upon  one  point  the  evidence  of  the  parties 
to  the  case  is  in  entire  accord,  namely,  that 
since  the  decree  of  May  27,  1915,  Mr.  Hub- 
bard has  contributed  nothing  whatever  to 
the  support  or  maintenance  of  his  wife. 

The  right  of  a  wife  to  look  to  her  hushand 
for  support,  and  to  maintain  a  bill  in  equity 
therefor,  where  the  parties  are  not  living 
together,  and  that  through  no  fault  of  the 
wife,  is  too  firmly  established  In  the  law  of 
this  state  to  call  at  this  time  for  any  dis- 
cussion or  extended  citation  of  authorities. 
WaUlngsford  v.  Wallingsford,  6  Har.  &  J. 
485;  McOurley  v.  McCurley,  60  Md.  185,  46 
Am.  Bep.  717. 

[2]  The  only  pretext  upon  which  Mr.  Hub- 
bard relied  in  b\a  testimony  to  justify  his 
failure  to  return  to  his  wife,  or  to  fail  to 
provide  her  with  a  proper  allowance  for  her 
support,  was  that  she  had  had  him  arrested, 
and  that  when  the  parties  were  before  the 
magistrate  she  had  asked  in  anticipation  of 
his  returning  to  their  home  to  be  afforded 
police  protection,  but  such  reasons,  however 
galling  they  may  have  been  to  the  husband's 
pride,  cannot  be  relied  upon  as  justifying  a 
total  failure  to  make  any  provision  what- 
ever for  the  support  of  the  wife. 

[3]  A  large  amount  of  the  testimony  taken 
at  the  trial  of  this  case  was  directed  to  the 
capacity  of  the  husband  to  support  his  wife, 
and   the   details    of   his   business    and   the 


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101  ATLANTIC  REPORTER 


amount  received  by  him  from  It  were  gone 
into  at  great  lengtli.  The  facts  upon  the  un- 
contracted  evidence  of  this  branch  of  the 
case  show  that  he  was  conducting  a  relatTve- 
\y  small  business  In  the  shipping  and  selling 
of  oysters,  and  that  the  profits  at  the  close 
of  the  year  were  trifling  in  amount  In 
reaching  this  result  there  were  deducted  as 
a  part  of  the  expenses  of  the  business  week- 
ly payments  to  the  defendant  as  salary  of 
$20,  to  his  bookkeeper  of  $18,  a  foreman,  $15, 
and  a  driver,  $11.  Without  stopping  to  con- 
sider or  discuss  whether  this  weekly  salary 
list  was  or  was  not  out  of  proportion  to  the 
amount  of  business  done,  the  important  fact 
Is  that  Mr.  Hubbard  had  a  weekly  drawing 
account  as  salary  of  $20. 

The  decree  from  which  this  appeal  was 
taken  awards  Mrs.  Hubbard  the  sum  of  $3 
per  week  as  permanent  alimony,  less  than 
one-fourth  of  the  earning  capacity  of  the 
hnsband,  as  shown  by  the  salary  which  he 
was  drawing.  Such  an  allowance  of  alimony 
caimot  be  said  to  be  unreasonable  (Ricketts 
v.  Ricketts,  4  Gill,  105;  Harding  v.  Hard- 
ing, 22  Md.  337);  and  since  an  allowance  for 
alimony  is  subject  to  be  increased  or  di- 
minished by  the  court  making  it,  according 
to  the  altered  condition  of  the  parties  as  they 
may  from  time  to  time  exist,  no  reason  is 
apparent  for  disturbing  the  decree  of  the  cir- 
cuit court  for  Baltimore  city,  and  that  de- 
cree will  accordingly  be  affirmed. 

Decree  affirmed,  with  costs. 


(131  Hd.  SU) 

BRADFORD  et  al.  v.  MACKENZIB  et  aL 
(No.  70.) 

(Court  of  Appeals  of  Maryland.    Jane  28, 1017.) 

1.  Wills  ®=»S07(1)— Constbuction— Fee. 

Under  a  will  devising  the  resiilue  of  testa- 
tor's property  equally  among  his  wife  and  his 
seven  surviving  children,  "their  heirs,  execu- 
tors and  assigns,"  share  and  share  alike,  the 
use  nf  such  words  was  not  controlling  as  to 
whether  the  devisees  took  a  fee  simple. 

2.  Wills  €=>622  —  REMAisnERS  —  Precedent 
Estate— Pee. 

A  remainder  cannot  be  limited  upon  a  fee 
simple. 

3.  Wills   iS=><5K— Executobt   Devise— Pbe- 
CEDENT  Estate. 

An  executory  devise  can  be  limited  after  a 
fee  simple. 

4.  Wills  «=a54S— Constbuction- Executobt 
Devise. 

Under  a  will  devising  a  residue  to  testator's 
wife  and  his  seven  surviving  children,  their 
heirs,  executors,  and  assiKns,  and  on  the  death 
of  any  child  intestate  and  without  living  issue 
devising  his  share  over  to  the  survivini:  devisees, 
the  share  of  a  son  so  dying  vested  in  the  testa- 
tor's surviving  children,  to  the  exclusion  of  the 
children  of  a  daughter  dying  intestate  before  the 
son. 

Appeal  from  Circuit  Court,  Baltimore 
County;   Frank  I.  Duncan,  Judge. 

Bill  by  Thomas  Mackenzie,  committee,  and 
others  against  Samuel  W.  Bradford  and  oth- 
ers.    Decree  for  plaintiffs,  and  defendants 


appeal.      Decree    reversed,    and    cause    re- 
manded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGE,  and  CONSTABLE,  JJ. 

Harry  S.  Carver,  of  Bel  Air,  for  appel- 
lants. Ralph  Robinsoo,  of  Baltimore,  and 
Edward  H.  Burke,  of  Towson,  for  appellee 
children  of  Mrs.  McElderry.  Gerald  F.  Kc^p, 
of  Baltimore,  for  Emeline  K.  Bradford. 
Thomas  Mackenzie,  of  Baltimore,  for  com- 
mittee and  trustee. 

BOYD,  C.  J.  The  main  quesUon  involv- 
ed in  this  case  is  the  proper  construction  of 
the  residuary  clause  of  the  will  of  ttie  late 
Augustus  W.  Bradford,  a  former  Governor 
of  this  state.    That  clause  Is  as  follows : 

"A.  I  give  and  bequeath  ail  the  rest  and  resi- 
due of  my  property,  real,  personal  and  mixed, 
after  the  payment  of  any  debts  I  may  be  owing 
at  the  time  of  my  death,  to  be  equally  divided 
among  my  wife  aforesaid  and  my  said  seven  sur- 
viving children,  to  wit:  Emeline  K.  Bradford, 
Jane  B.  Bradford,  Augustus  W.  Bradford,  Jun- 
ior, Charles  H.  Bradford,  Elizabeth  Bradford, 
Thomas  Kell  Bradford  and  Samuel  Webster 
Bradford,  their  heirs,  executors  and  assigns 
share  and  share  aUke. 

"B.  I  do  hereby  further  direct  and  declare 
that  so  far  as  concerns  the  female  devisees 
above  mentioned  the  portions  so  devised  to  them 
respectively  shall  be  for  the  sole  and  separate 
use  of  each  of  tbem  and  absolutely  free  and 
discharged  from  any  interest  or  estate  therein 
lof  any  husband  whom  either  of  them  may  here- 
after marry  and  in  no  way  subject  to  his  di- 
rnctioQ  or  control  or  liable  for  his  debts  or  en- 
gagements. 

"C.  I  do  further  will  and  declare  that  should 
either  of  my  said  seven  children  included  in  the 
aforesaid  devises  die  intestate,  whether  in  my 
lifetime  or  afterwards,  and  leaving  no  issue 
living  at  the  time  of  their  death,  or  should  my 
wife  die  intestate,  then  the  share  or  portion  of 
the  one  so  dying  shall  survive  to  and  vest  in  the 
surviving  devisees  aforesaid  share  and  share 
alike." 

For  convenience  of  reference  we  havo 
marked  those  paragraphs  in  the  residuary 
clause  A,  B,  and  C,  although  those  letters 
do  not  appear  tn  the  will.  By  prior  provi- 
sions in  his  will  the  testator  had  left  to  his 
wife  liis  house  and  lot  on  Eutaw  place  in  the 
city  of  Baltimore,  together  with  all  the 
household  furniture,  linen,  pictures,  and 
plate  therein  contained  (excepting  a  set  or 
plate  described)  for  life,  and  after  her  death 
to  pass  into  the  residue  of  his  estate  and  be 
with  that  residue  equally  divided  as  direct- 
ed. He  then  made  bequests  to  three  of  Us 
sons  of  personal  property  and  $50  to  eadi  of 
his  three  daughters  and  the  same  amount  to 
his  son  Charles  H. 

Gov.  Bradford  died  March  1,  1881,  leariag 
a  widow  and  the  seven  children  named  in  the 
residuary  clause.  Mrs.  Bradford  (the  wid- 
ow) died  December  27,  1894,  leaving  a  last 
will  and  testament  Jane  B.  Bradford  died 
unmarried  and  without  issue  on  February  2T. 
1905,  but  left  a  will.  Thomas  Kell  Brad- 
ford died  July   14,   1906,  Intestate,  unmar- 


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BRADFORD  t.  MACEEKZia 


775 


rled,  and  witboot  Issue.  Elizabeth  Brad- 
ford married  Thomas  McElderry,  who  pre- 
deceased bis  wife,  and  she  died  June  9, 1915, 
intestate,  and  leaving  four  children,  all  of 
whom  are  of  age  except  Sarah,  and  are  par- 
ties to  this  bill.  Charles  H.  Bradford  died 
January  6,  1916,  Intestate,  unmarried,  and 
without  issue.  Augustus  W.  Bradford,  Jr., 
and  Emellne  K.  Bradford  are  still  living,  and 
both  are  unmarried,  and  Samuel  W.  Brad- 
ford Is  still  living,  but  is  married  and  has 
living  issue.  The  three  living  children  of 
the  testator  claim  the  estate  left  by  Charles 
H.  Bradford,  while  the  children  of  Mrs.  Mc- 
Elderry claim  they  are  entitled  to  a  fourth 
interest  in  it. 

If  paragraph  A  stood  alone,  it  could  not 
be  doubted  that  the  wife  and  seven  children 
took  the  real  estate  In  the  residuary  clause 
in  fee  simple  and  the  entire  personalty. 
Paragraph  B  tends  to  confirm  that  construc- 
tion. The  controversy  arises  by  reason  of 
paragraph  0.  As  Charles  H.  Bradford  died 
Intestate  and  left  no  Issue,  it  becomes  neces- 
sary to  ascertain  the  effect,  if  any,  of  para- 
graph C  on  paragraph  A. 

Paragraph  C  was  only  intended  to  take  ef- 
fect in  case  of  a  child  of  the  testator  dying 
Intestate  and  leaving  no  issue.  In  determin- 
ing the  effect  of  that  paragraph.  It  must  be 
borne  in  mind  that  it  is  clear  that  the  testa- 
tor intended  to  connect  It  and  paragraph  B 
with  paragraph  A  Indeed,  paragraph  B  is 
relied  on  by  the  appellees  in  support  of  their 
contention.  It  begins,  "I  do  hereby  further 
direct  and  declare,"  etc.,  and  then  paragraph 
C,  which  immediately  follows,  begins,  "I  do 
further  will  and  declare,"  etc.  It  was  evi- 
dently intended  to  be  something  more  than 
a  mere  expression  of  a  wish,  desire,  or  direc- 
tion, such  as  is  spoken  of  as  precatory  lan- 
guage. All  of  those  paragraphs  were  in- 
tended to  be  taken  together  in  reference  to 
the  residuary  devises  and  bequests,  and,  as 
we  have  seen,  were  not  separated  by  the  let- 
ters A,  B,  and  C. 

[1]  It  may  be  well  to  recall  that  the  use  of 
the  words  "their  heirs,  executors  and  as- 
signs" in  paragraph  A  is  not  controlling. 
In  Devecmon  v.  Shaw,  70  Md.  219,  225,  16 
Atl.  645,  647,  Judge  Alvey  referred  to  what 
Is  section  327  of  article  93  of  Annotated  Code 
to  show  that  the  daughter  took  a  fee  simple 
in  the  Teal  estate  without  the  use  of  the 
words  "to  her  and  her  heirs  or  to  her  In  fee 
simple,*'  and  he  said  she  also  took  the  en- 
tire interest  in  the  personalty,  but,  as  we 
will  see  later,  held  that  the  fee  simple  was 
defeasible  and  the  interest  in  the  personalty 
was  subject  to  the  contingencies  specified. 
So  in  Anderson  ▼.  Brown,  84  Md.  261,  35  Atl. 
937,  also  referred  to  later,  the  devise  was, 
"To  them  and  their  heirs  and  assigns  for- 
ever." 

[2, 8]  What  effect,  then,  did  paragraph  C 
have  on  the  devise  and  bequest  given  Charles 
H.  Bradford  by  paragraph  AT  it  is  clear 
that  there  was  no  remainder,  as  a  remain- 


der cannot  be  limited  after  a  fee  simple  (Bill 
V.  Hill,  6  Gill.  4  J.  87;  40  Cyc.  641;  24  Am. 
&  Eng.  Ency.  of  Law,  380),  but  thst  is  not 
so  with  an  executory  devise,  and  hence  we 
must  determine  whether  paragraph  C  was 
a  valid  executory  devise,  or  made  the  estat>) 
given  by  paragraph  A  defeasible  upon  the 
happening  of  the  contingencies  specified. 

[4]  In  11  R.  C.  L.,  under  the  arUcle  "Ex- 
ecutory Interests,"  the  subject  is  discussed 
under  different  heads.  Section  16  of  that 
article  on  page  476  is  on  "Limitation  Repug- 
nant to  Gift  with  Absolute  Power  of  Dia- 
posaL"    It  is  there  said: 

"Indestractibility  is  an  essential  element  of 
executory  limitation,  and  an  unlimited  power  of 
disposition  in  the  first  taker  is  clearly  incongru- 
oaa  with  this  idea,  bcin^  ipso  facto  a  destruc- 
tion of  the  executor;  limitation,  whether  the 
power  is  exercised  or  not  lo  this  constme- 
tion  no  distinction  is  made  between  goods  and 
land,  but  if  the  primary  gift  vests  in  the  first 
taker  an  absolute  interest  In  personal,  or  an  ab- 
solute fee  simple  in  real,  property,  it  exhausts 
the  entire  estate,  so  that  there  can  be  uo  valid 
remainder.  Thus  where,  an  absolute  gift  to  a 
person  is  followed  in  the  same  instrumeut  by  a 
gift  over  in  case  of  that  person  dying  intestate, 
or  without  having  disposed  of  the  property,  the 
gift  over  is  said  to  be  repugnant,  and  is  void. 
When  thnre  is  an  absolute  or  unlimited  devise 
or  bequest  of  property,  a  subsequent  clause  ex- 
pressing a  wish,  desire  or  direction  for  its  dis- 
position after  the  death  of  the  devisee  or  legatee 
will  not  defeat  the  devise  or  bequest,  nor  limit 
the  estate  or  interest  in  the  property  to  the 
right  to  possess  and  use  during  the  life  of  the 
devisee  or  legatee.  The  absolute  devise  or  be- 
quest stands,  and  the  other  clause  is  to  l>e  re- 
garded as  presenting  precatory  language.  The 
will  must  be  interpreted  to  invest  in  the  devisee 
or  legatee  the  fee-simple  title  of  the  land,  and 
the  absolute  property  in  the  subject  of  the  l)e- 
qnest.  In  the  case  of  executory  devisee,  the 
question  whether  the  primary  gift  is  in  fee,  so 
as  to  exhaust  the  entire  estate,  is  in  each  case 
to  he  decided  on  a  careful  examination  of  the 
entire  will,  aided  by  legitimate  extrinsic  evi- 
dence, to  ascertain  the  actual  intent  of  the  testa- 
tor, which  intent,  when  so  discovered  and  made 
obvious,  is  controlling." 

Section  17  of  that  article  is  on  "Limitation 
Over  After  Life  Estate  with  Power  of  Dis- 
posal." Section  18  Is  in  reference  to  "Lim- 
itations tending  to  Create  Perpetuities  Gen- 
erally," and  section  19  as  to  "Limitations 
over  on  Failure  of  Issue."  In  the  case  of 
Benesch  y.  Clark,  49  Md.  497,  relied  on  by 
the  lower  court,  it  was  held  that  Mrs.  Bram- 
ble only  took  a  life  estate  in  the  Monument 
street  lota,  vlth  the  power  of  disposition,  and 
that  the  power  was  effectually  executed  by  a 
deed  of  assignment  That  case  turned  on 
the  question  whether  there  was  a  valid  ex- 
ecution of  the  power.  While  it  is  true  that 
the  language  of  the  power  there  was  that  the 
lots  were  to  be  disposed  of  as  the  life  tenant 
might  see  fit  at  his  decease,  and  the  court 
held  that  the  execution  of  the  power  was  not 
limited  to  a  last  will  and  testament,  but  the 
assignment  of  the  leasehold  property  was 
valid,  the  court  did  not  hold  that  the  power 
to  dispose  of  the  property  by  will  necessarily 
Includes  the  power  to  dispose  of  It  by  deed. 
As  shown  by  the  dlsxTusslon  of  the  cases  dted 


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101  ATIiiJmO  REPORTBB 


(Md. 


by  Judge  Alvey,  It  depends  largely  npon  the 
language  of  the  donor  of  the  power.  We  do 
not  understand  the  rule  to  be  as  announced 
In  the  opinion  of  the  lower  court  that  "a  gen- 
uine poiver  to  dispose  of  an  estate  by  will 
includes  also  a  power  to  dispose  of  it  by 
deed,"  although  such  a  power  may  be  so 
worded  as  to  include  a  power  or  disposition 
by  deed.  But  this  is  not  a  case  of  whether  a 
power  has  been  validly  exercised,  but  wheth- 
er the  limitation  sought  to  be  imposed  is 
valid.  There  is  not  even  an  express  power 
given  to  dispose  of  the  property  by  will,  al- 
though, as  one  of  the  JJinitatlons  is  (].vlng  in- 
testate, it  must  be  inferred  that  the  testa- 
tor Intended  that  the  devisees  could  dispose 
of  their  interests  by  will,  but  it  would  be 
diflScult  to  construe  this  language  into  a  pow- 
er to  dispose  of  the  property  by  deed.  Of 
course  if  he  left  the  real  property  in  fee  and 
the  personalty  absolutely,  without  any  valid 
limitations,  the  devisees  could  convey  the 
property  by  deed,  or  as  they  saw  proper,  but 
that  is  not  the  question  we  are  now  consider- 
ing. 

Section  10  of  R.  O.  L.,  already  referred  to, 
begiju  by  announcing  a  rule,  which  seems  to 
be  a  very  geuenil  one,  that: 

"It  is  well  settled  that  while  an  executory 
limitation  to  take  effect  on  a  de6nite  failure  of 
issue  in  the  first  taker  is  valid,  yet  a  limitation 
to  take  effect  on  a  general  or  indefinite  failure 
of  issue  is  void." 

Most  of  the  rest  of  the  section  la  taken  up 
with  the  discussion  of  what  is  a  definite  or 
Indchuite  failure  of  issue,  but  tliere  can  be 
no  such  question  in  this  case.  Tbe  will  it- 
self says,  "leaving  no  issue  living  at  the  times 
of  their  death,"  and  the  act  of  18C2,  chapter 
Iftl,  now  section  332  of  article  93  oi  the  Code, 
provides  that  expressions  such  as  "die  with- 
out issiue,"  etc.,  "shall  be  construed  to  mean 
a  want  or  failure  of  issue  m  the  lifetime,  or 
at  the  death  of  such  perscm,  and  not  an  in- 
definite failure  of  ills  isiiue,  uulci^s  a  contrary 
intention  shall  appear  by  the  will."  A  sim- 
ilar provisioa  in  reference  to  deeds  la  now  in 
section  90  of  article  21.  Combs  v.  Combs, 
67  Md.  11,  8  AU.  757,  1  Am.  St  Rep.  359,  is 
one  of  tbe  cases'  cited  in  the  note  to  section 
19  of  11  R.  C.  U,  above  referred  to,  to  show 
that  in  some  states  statutes  have  been  passed, 
^niat  ca&e  is  relied  on  by  the  appellees  to 
show  that  paragraph  C  was  invalid  to  alTect 
paragraph  A,  but  there  the  property  was  de- 
vised to  the  devisees  with  full  authority — 
"to  sell  and  convey  the  same  in  bis  lifetime,  or 
to  dispose  of  tbe  same  by  lost  will  and  testa- 
ment; but  should  he  die  without  issue  of  the 
body  lawfully  beg^>tteD,  and  without  havlni;  dis- 
posed of  the  same  by  sale,  or  by  last  will  and 
testament,  either  in  whole  or  in  part,  then  I 
give  and  devise  my  said  estate,  both  real  and 
personal,  or  the  part  remaining  as  above  undis- 
posed of,  to  my  cousins,"  etc. 

Of  course,  that  limitation  was  held  to  be 
void,  as  the  gift  to  the  first  taker  was  ab- 
solute and  unqualified.     It  was  there  said 


that  an  executory  devise  may  be  limited  aft- 
er a  tee  simple,  but  In  such  case,  the  former 
must  be  made  determinable  on  some  contin- 
gent event  In  this-  case  there  was  a  fee,  but 
it  was  determinable  on  tbe  contingency  of 
dying  intestate  and  leaving  no  issue  living  at 
the  time  of  the  death  of  the  devisee,  "the 
share  or  portion  of  the  one  so  dying  shall 
survive  to  and  vest  in  the  surviving  devisees 
aforesaid  share  and  share  alike." 

In  the  case  of  Anderson  v.  Brown,  81  Md. 
261,  35  Aa  937,  the  testator  left  real  estate 
to  his  wife  so  long  as  she  should  live  or  re- 
main a  widow,  and  at  her  death  or  marriage 
he  left  to  his  eight  children  named — 
"the  aforesaid  real  estate  to  them  and  their 
heirs  and  assigns  forever,  and  in  case  of  the 
death  of  any  one  of  them  without  issue  living  at 
the  time  of  his  or  her  death,  I  do  give  and  de- 
vise his  or  her  share  to  the  survivor  or  surviv- 
ors, and  this  principle  of  survivorship  I  do  di- 
rect to  apply  to  any  and  all  accumulations  by 
survivorship,  not  only  to  the  original  shares, 
but  to  all  accretions  by  survivorsmp  until  the 
death  of  any  and  all  of  such  children  as  may  die 
without  issue  at  tbe  time  of  his  or  her  death." 

It  was  there  held,  quoting  from  the  sylla- 
bus for  convenience: 

"First.  That  the  devisees  took  estates  in  fee. 
as  tenants  in  common,  defeasible  as  to  each 
upon  his  or  her  death  without  issue,  in  which 
event  the  share  of  the  person  so  dying  passed 
to  tbe  survivors,  so  that  the  last  survivor  took 
his  estate,  including  that  which  survived  to  him 
in  fee,  atwolutely.  Second.  That  it  was  not 
the  intention  of  the  testator  that  in  the  case  of 
the  death  of  one  child  without  issue,  his  share 
should  go  in  part  to  the  issue  of  pre-deceased 
children,  but  nothing  could  pass  to  tbe  issue 
of  a  pre-deceased  child  except  that  which  the 
parent  was  entitled  to  at  the  time  of  his  death. 
Third.  That  the  word  'survivor'  as  used  in  the 
will  meant  the  survivors  of  the  children  named 
as  devisees,  and  did  not  include  the  issue  of  a 
deceased  child  as  a  surviving  line  of  heirs." 

That  case  is  as  nearly  analogous  to  this 
as  we  could  expect  to  find. 

In  Devecmon  v.  Shaw  et  al.,  70  Md.  219. 
16  Atl.  645,  tbe  opinion  of  Judge  Alvey  filed 
In  the  lower  court  was  adopted  by  thi&  court. 
The  testator  after  providing  for  his  ^v^fe,  and 
after  making  certain  devises  and  bequests  to 
his  daughter  without  limitations  or  restric- 
tions, added  the  provision: 

"But  in  case  my  said  daughter  should  die 
without  leaving  any  child  or  children  at  the  time 
of  her  death,  or  if  leaving  such  child  or  chil- 
dren, such  child  or  all  such  children  should  die 
before  arriving  at  the  age  of  twenty-one  years, 
then  all  the  real  estate  and  peraonal  estate 
devised  to  my  said  daughter  shall  go  to  my  sis- 
ter," etc 

It  was  held  tliat: 

"The  daughter  (of  the  testator]  took  a  ffeo- 
simple  estate  in  the  realty,  and  tbe  entire  inter- 
est in  the  personalty,  defeasible  as  to  both  real- 
ty and  'lersonalty  on  her  dying  without  leavinic 
a  child,  or,  if  she  left  child  or  children,  upon 
their  all  dying  before  attaining  the  age  of  21 
years;  and  upon  the  happening  of  such  contin- 
froncies  the  ultimate  devisees  and  legatees  would 
take  by  way  of  executory  devise  and  bequest, 
and  not  by  way  of  contingent  remainder." 

Judge  Alvey  said  in  his  opinion: 
"Upon  consideration  of  the  whole  context  ot 
the  will,  I  can  entertain  no  doubt  of  the  opia- 


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ABTHUB  A  BOTM!  v.  MOBROW  BRO& 


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ion  that  the  dauchtcr  was  inteDded  to  take, 
and  that  rfie  does  by  fair  construction  take,  an 
estate  in  fee  in  the  realty,  and  the  entire  interest 
in  the  personalty,  defeasiblo  as  to  both  realty 
and  personalty,  upon  the  hannening  of  the  con- 
tingencies specified." 

There  are  a  number  of  other  cases  decided 
by  this  court  to  the  same  effect,  and  we  are 
forced  to  the  conclosion  that  wider  this  will 
the  children  of  Mrs.  McMderry  took  no  In- 
terest In  the  share  of  Charles  H.  Bradford 
left  to  talm  by  his  father's  will. 

It  was  said  at  the  argument  that  in  prior 
matters  concerning  the  estate  of  Got.  Brad- 
ford the  appellants  had  concurred  tn  the 
views  now  taken  by  the  appellees,  and  pro- 
ceeds of  properties  liad  been  disposed  of  ac- 
cordingly, but  there  Is  nothing  in  the  record 
which  would  Justify  us  for  that  reason  in 
making  the  distribution  now  before  as  om- 
trary  to  what  we  are  of  opinion  the  will  and 
anthorlties  require.  We  will,  however,  di- 
rect that  the  costs  be  paid  out  of  the  estate 
of  Qiarleer  H.  Bradford. 

Decree  reversed,  and  cause  remanded  for 
farther  proceedings  in  accordance  with  this 
opinion,  the  costs  to  be  paid  out  of  the  es- 
tate of  Charles  H.  Bradford. 


(131  MO.  Et) 

ARTHUR  &  B0YU3  v.  MORROW  BROS. 
(No.  61.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  BXLEABK     0S»57(1)  —   BVIDENCB  —  SUFIT- 
CIENCT. 

In  an  attachment  issued  apinst  a  general 
contractor  on  a  judgment  against  the  subcon- 
tractor for  work  done  by  plalntiSs,  h«ld,  under 
the  evidence,  that  a  release  under  seal  executed 
by  the  subcontractor  to  the  general  contractor 
was  not  a  release  of  the  debt  attached. 

2.  EVIDKNCE    «=>7&— Prbsui(ftior— Failubx 
OF  Pabtt  to  Testify. 

That  neither  of  the  garnishees  took  the  stand 
raises  a  presumption  against  them. 

3.  FBAnDin.ENT     CONVETANCES    «S>22&— LlA- 

BiuTT  or  Gbaniee— Gasnishmert. 
If  a  creditor  has  fraudulently  conveyed  prop- 
erty to  another,  the  grantee  may  be  diarged  as 
garnishee. 

4.  FBAnDUI.EKT      OoBVETANOSa     4=>48— VOL- 

UNTABY  Release  by  Cbxoitob. 
The  voluntary  release  of  his  debtor,  by  a 
creditor  not  havinp;  the  means  to  pay  debts  is 
void  as  to  the  creditors  of  the  latter. 

5.  FBAUDUiiCNT  Conveyances  «s>273— Voi<- 

VNTABY  BEIXASE— PbESUUPTXOR. 

If  the  necessary  eSect  and  operation  of  a 
voluntary  release  of  a  debtor  was  to  hinder,  de- 
lay, or  defraud  creditors,  the  legal  presumption 
is  tiiat  it  was  made  for  that  purpose. 

6.  Fbaudtjuint    Convxyances    «5»23— Yoi.- 

UNTABY    RbIAASB    OF    DSBTOB— IRBTBITMENT 

UN  DEB  Seal. 
If  the  release  had  its  origin  in  fraud,  or 
what  the  law  deems  fraud,  it  would  make  no 
difference  that  it  was  under  seal. 

Appeal  from  Superior  Court  of  Baltimore 
City;    Robert  F.  Stanton,  Judge. 

Suit  by  Arthar  &  Boyle,  for  the  use  of 
Fielder  G.  Slingluff  and  another,  trustees, 
ngnlnst  James  G.  Parlett.    On  the  Judgment 


for  plaintiffs,  an  attachment  was  issued 
against  Morrow  Bros.,  garnishees.  From  the 
Judgment  against  the  garnishees,  plaintiffs 
appeaL    Reversed,  and  new  trial  awarded. 

Argued  before  BOYD,  C.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNHR, 
STOCKBRIDGE,  and  CONSTABLE,  JJ. 

Albert  R.  Stuart  and  Stuart  S.  Janney, 
both  of  Baltimore  (Ritchie  &  Janney,  A. 
Dana  Hodgon,  and  Fielder  C.  Slingluff,  all 
of  Baltimore,  on  the  brief),  for  appellants. 
CarvlUe  D.  Benson  and  John  D.  Nock,  both 
of  Baltimore  (Benson  &  Karr,  of  Baltimore, 
on  the  brief),  for  appellees. 

BOYD,  O.  J.  The  appellees  were  the  gen- 
eral contractors  for  the  State  Normal  School 
building  near  Towson,  and  made  in  writing 
a  subcontract  with  James  G.  Parlett  to  do 
certain  work  in  connection  with  its  construc- 
tion. The  contract  is  not  in  the  record,  but 
a  memorandum  of  agreement  filed  in  the 
case  shows  that  it  was  for  grading  and  land- 
scaping. Parlett  made  a  subcontract  with 
Carozza  Bros,  ft  Co.,  who  in  turn  entered  in- 
to a  subcontract  with  Artbur  &  Boyle,  the 
appellants. 

While  that  work  was  going  on,  (Charles 
Morrow,  one  of  the  appellees,  called  Frank 
J.  Boyle,  one  of  the  appellants,  to  where  be 
and  Parlett  were  standing,  and  asked  blm 
If  he  would  make  some  tunnels  which  were  to 
be  constructed  under  the  building,  and  he 
replied  that  he  would  if  he  got  his  price,  and 
that  be  could  start  the  next  morning.  After 
some  c<Hiversation  about  the  price.  Morrow 
turned  to  Parlett  and  said: 

"  'Parlett,  get  them  in  right  away,'  and  also 
said  to  me,  'You  had  better  get  your  shovel  up 
there  and  get  to  work  on  them  and  get  them 
out,  as  we  can't  start  this  building  until  these 
tunnels  are  taken  out'  Q.  And  he  said  to  Mr. 
Parlett,  'You  get  them  out  right  away'?  A. 
Yes." 

That  is  substanttally  all  in  the  record  in 
reference  to  the  contract  for  the  tunnels, 
but  it  is  corroborated  by  Parlett 

The  appellants  did  the  work,  and  received 
a  payment  of  $1,890  on  account  of  it.  Frank 
J.  Boyle  testitled  that  the  amount  was  paid 
to  blm  by  Parlett,  who  received  the  money 
from  Morrow  Bros.,  at  their  office,  in  his 
presence,  and  turned  It  over  to  him.  Later 
the  appellants  sued  the  appellees  for  the 
balance  they  claimed  to  be  due  on  account 
of  the  work  on  the  tunnels,  bnt  the  case  was 
decided  against  them.  Afterwards  they  sued 
Parlett  and  recovered  a  Judgment  against 
him  for  $4,409.06,  with  Interest  and  costs. 
On  that  Judgment  an  attachment  was  issued, 
and  laid  in  the  hands  of  Morrow  Bros.  They 
first  filed  a  plea  of  nulla  bona,  but  subse- 
quently filed  an  additional  plea  in  which 
they  admitted  having  $250  in  hand  due  Par- 
lett, but  alleged  that  they  bad  no  other  goods, 
chattels,  or  credits  of  Parlett  in  their  hands. 
The  $250  was  for  the  balance  due  oa  the 


dts»F«r  otbar  can*  ■••  lama  topic  uui  KBT-NUMBEB.  in  all  Key-Numbend  Dtgeita  and  IndaxM 


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101  ATLANTIC  REPORTBB 


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contract  tor  grading  and  landscaping.  The 
trial  In  this  case  resulted  In  tbe  appellants 
obtaining  a  verdict  tor  only  $250  against 
Morrow  Bros.,  the  garnisbees,  and  they  ap- 
pealed from  the  Judgment  thereon. 

There  are  only  two  bills  of  exception  Ijq  the 
record,  the  first  b«ing  to  the  admission  of  an 
"agreement  and  release,"  a  "memoratidum  of 
agreement,"  and  a  receipt  which  were  offered 
by  the  garnishees,  and  the  second  presents 
the  rulings  on  the  prayers.  The  plaintiffs 
offered  five  prayers,  all  of  which  were  re- 
jected, and  the  garnisbees  offered  three,  the 
second  of  which  was  granted,  and  the  others 
rejected.  We  do  not  find  In  the  record  a 
copy  of  the  Judgment  on  which  the  attach- 
ment was  Issued,  bat  the  evidence  of  Mr. 
Boyle  shows  that  they  recovered  Judgment 
for  $4,409.05,  with  Interest  from  May  9,  1916, 
and  apparently  that  was  the  date  of  the 
Judgment.  Nor  is  there  anything  to  show 
when  the  suit  against  Pbrlett  was  Instituted. 
The  appellees  rely  on  the  agreement  and  re- 
lease referred  to,  while  the  theory  of  the 
appellants  Is  that  Morrow  Bros,  owe  Par- 
lett  a  balance  for  the  work  on  the  tunnels, 
which  they  claim  Is  the  amount  of  the  Judg- 
ment they  recovered  against  Parlett,  and  (1) 
that  Parlett  never  did  release  this  claim, 
and  (2)  that,  even  If  be  did,  the  release  was 
without  consideration,  void  and  of  no  effect 
as  to  them,  by  reason  of  the  British  statute 
(15  Elizabeth,  c.  5)  known  as  the  statute 
against  fraudulent  conveyances,  in  force  in 
this  state. 

[1]  1.  We  find  no  error  In  admitting  the 
papers  referred  to,  notwithstanding  our  con- 
clusion to  be  hereafter  stated  as  to  the  ef- 
fect of  the  release.  The  memorandum  of 
agreement  was  dated  March  16, 1916,  and  was 
executed  by  Morrow  Bros.,  parties  of  the 
first  part,  James  G.  Parlett,  party  of  the 
second  part,  and  Carozza  Bros.  &  Co.,  parties 
of  the  third  part,  the  individual  members  of 
the  two  firms  being  also  named.  Its  recitals 
are  as  follows: 

"Whereas,  the  parties  of  the  first  part  entered 
into  a  contract  with  the  party  of  the  second  part 
]or  tho  grading  and  latuUcaping  [italics  ours] 
at  the  &fai-yland  State  Normal  School,  and  the 
parties  of  the  third  part  claim  to  have  an  aasicn- 
ment  of  said  contract  from  the  party  of  tlie  sec- 
ond port ;  and  whereas,  a  dispute  has  arisen  in 
regard  to  the  state  of  accounts  between  them, 
and  the  parties  hereto  have  arrived  at  a  com- 
promise settlement  of  their  differences:  Where- 
fore, now  this  agreement  witnesseth:  That  in 
consideration  of  the  sum  of  one  ($1.00)  dollar 
by  each  of  the  parties  hereto  to  the  other  paid, 
and  in  turthtr  consideration  of  certain  mntual 
concessions  by  the  parties  hereto,  it  is  agreed  by 
the  parties  hereto  and  each  of  them  that  the  to- 
tal amount  due  by  the  parties  of  the  first  part 
in  connection  with  and  as  a  result  of  the  matters 
and  Ihingi  hereinhefore  referred  to  [italics  ours] 
is-  eleven  thousand  five  hundred  dollars  ($11,- 
5O0),  and  no  more." 

On  the  same  day  what  Is  called  an  "agree- 
ment and  release"  was  executed  by  Parlett, 
party  of  the  first  part,  and  the  Cnrozza  Bros. 
it  Co.,  i)artles  of  the  second  part,  to  the 


Morrow  Bros.,  parties  of  the  third  part  the 
individual '  members  of  the  firms  being  also 
named.    It  recites: 

That,  "whereas,  certain  differences  and  i» 
pntes  have  arisen  between  •  •  •  [naming  the 
parties]  regarding  certain  contracts  entered  into 
by  the  parties  of  the  first  and  third  parts  re- 
garding certain  work  to  be  done  at  and  on  the 
Maryland  State  Normal  School,  for  the  erection 
of  which  school  the  parties  of  the  third  part  vere 
the  general  contractors,  and  whereas  said  dif- 
ferences and  disputes  have  been  adjusted  to  the 
satisfaction  of  the  parties  hereto,"  and  that  for 
and  in  consideration  of  the  sum  of  $10,500  in 
hand  paid  to  the  parties  of  the  first  and  second 
parts  by  the  parties  of  the  third  part,  the  re- 
ceipt of  which  is  aclcnowledged,  and  the  further 
payment  of  $1,000  when  the  state  of  Maryland 
malies  final  payment  to  Morrow  Bros.,  and  of 
other  good  and  valuable  considerations,  Parlett 
and  Carozza  Bros.  &  C>o.  and  each  of  them,  re- 
mise, release,  and  forever  discbarge  Morrow 
Bros,  "from  all  and  all  manner  of  action  and  ac- 
tions, cause  and  causes  of  action,  suits,  debts, 
dues,  sums  of  money,  accounts,  reckoniniis, 
lx)nd8,  covenants,  contracts,  agreements,  prom- 
ises, damages,  claims,  and  demands  whatsot-ver 
in  law  or  in  equity  which  against  the  said  Wil- 
liam H.  Morrow  and  Charles  A.  Morrow,  or  ei- 
ther of  them,  they  ever  had,  now  have,  or  which 
their  respective  heirs,  personal  representatives, 
or  assigns  hereafter  can,  shall,  or  may  have^  for, 
upon,  or  by  reason  of  any  manner  or  cause  or 
thing  whatsoever  from  the  beginning  of  the 
world  to  the  day  of  the  date  of  these  presents', 
the  said  parties  of  the  first  and  second  parts, 
and  each  of  them,  liereby  declaring  themselvea 
fully  paid  and  satisfied. 

"And  the  said  parties  of  the  first  and  second 
parts  do  hereby  covenant  and  warrant  that  any 
and  all  claims  of  any  other  subcontractors  or  oth- 
er persons  for  latx>r  and  material  done  or  tat- 
nished  in,  about,  or  in  connection  with  the  con- 
struction of  the  State  Normal  School  in  Balti- 
more county,  or  in  or  about  the  site  of  said 
State  Normal  School  building,  are  paid  in  full, 
and  that  they  and  each  of  them  will  assume  and 
pay  any  and  all  such  claims  as  may  arise  or  be 
presented." 

The  receipt  referred  to  Is  as  follows: 

"Baltimore,  3A6/19ie. 

"Recrived  of  Morrow  Bros,  two  thousand  dd- 
lars  in  full  settlement  of  Normal  School  con- 
tract, except  the  sum  of  $1,000,  which  is  to  bs 
paid  when  work  is  finally  completed  and  accept- 
ed, to  be  paid  as  follows:  Parlett,  $250.00: 
Carozza,  $750.00." 

That  Is  signed  by  Parlett  and  Carozsa  Bros. 
It  would  be  aifflcutt  to  use  more  words  In  a 
release  than  In  the  one  above  set  out,  bot 
there  are  some  significant  facts  whldi  can- 
not be  overlooked.  In  the  first  place,  it  would 
have  been  so  easy  to  mention  the  contract 
for  tunneling  if  that  was  intended.  Then  the 
"memorandum  of  agreement"  and  the  "agree- 
ment and  release"  were  executed  the  sane 
day,  and  the  former  spedflcally  refers  to 
the  contract  for  grading  and  landscaping  and 
to  no  other  contract.  It  cannot  be  contended 
that  It  reUtes  to  that  for  tuaaeling.  It  is 
there  agreed  "that  the  total  amount  due  by 
the  parties  of  the  first  part  [Morrow  Bros.] 
in  connection  With  and  as  a  result  of  the  mat- 
ters and  things  hereinbefore  referred  to,  is 
eleven  thousand  five  hundred  ($11,000)  dollars, 
and  no  more."  The  only  things  "hereinbefore 
referred  to"  are  the  grading  and  landscaping- 
The  $11,500  Is  the  precise  sum  named  ss  the 


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consideration  In  the  agreement  and  release, 
tbere  being  $10,500  In  hand  paid,  and  the 
sum  of  $1,000  to  be  paid  wlien  tbe  state  made 
its  final  payment  It  Is  therefore  afflrmative- 
ly  and  clearly  shown  that  no  part  of  the  $11,- 
500  was  paid  for  the  tunneling,  but  that  the 
whole  of  that  sum  was  due  by  Morrow  Bros, 
to  Parlett  and  Carozza  Bros.  Company  for 
grading  and  tunneling. 

But  beyond  that  it  is  stated  in  the  opinion 
of  the  learned  Judge  below,  and  we  so  un- 
derstand from  the  record,  that  the  contract 
for  the  grading  and  landscaping  was  made 
between  the  Morrow  Bros,  who  were  the  gen- 
eral contractors,  and  Parlett  Then  Parlett 
made  a  subcontract  with  Carozza  Bros.  &  Co. 
for  that  work,  which,  according  to  the  mem- 
orandum of  agreement,  the  latter  claim 
amounted  to  an  assignment  of  it,  and  that 
firm  made  a  subcontract  with  Arthur  & 
Boyle  for  that  work.  We  find  nothing  in  the 
record  to  suggest  that  the  Carozza  Company 
had  any  Interest  whatever  in  the  contract  for 
tunneling.  It  was  therefore  proper  to  join 
the  Carozza  Company  in  the  memorandum  of 
agreement  and  for  them  to  unite  In  the  re- 
lease, and  to  require  that  company  and  Par- 
lett to  discharge  Morrow  Bros,  from  all 
claims  they  were  Jointly  interested  in  or  con- 
nected with,  but  why  should  it  have  been  in- 
tended by  that  instrument  to  release  Morrow 
Bros,  from  a  claim  of  Parlett  with  whidi 
the  Carozza  Company  had  no  connection? 
If  it  had  been  so  intended,  the  natural  and 
IHTOper  thing  to  do  was  to  specifically  recite  in 
the  release  the  claim  for  tunneling,  as  the 
Carozza  Company  had  nothing  to  do  with  it, 
but  were  parties  to  the  release.  It  is  clear 
that  the  release  was  only  intended  to  affect 
the  contract  or  contracts  with  which  Parlett 
and  the  Carozza  Bros.  &  Co.  were  both  con- 
nected, and  not  the  one  to  which  the  latter 
were  In  no  wise  parties. 

Then  when  we  come  to  the  oral  evidence, 
which  was  admitted  without  objection  so  far 
as  the  record  discloses,  and,  we  think,  prop- 
erly admitted  under  the  issues,  it  is  alto- 
gether on  the  one  side.  Neither  of  the  Mor- 
rows testified,  nor  did  they  call  a  witness, 
notwithstanding  Parlett  had  sworn  that  the 
tunnel  work  was  not  included,  and  not  intend- 
ed to  be  included.  As  the  record  stands. 
Morrow  Bros,  have  only  paid  $1,890  for 
"sixty  some  hundred  dollars"  of  work,  with- 
out an  iota  of  evidence  to  contradict  that 
statement  by  Parlett  and  if  the  appellees' 
constmctlon  of  the  release  la  correct  they 
were  released  from  the  payment  of  over  $4,- 
000  without  one  penny's  consideration;  for, 
as  we  have  shown,  the  consideration  named 
in  the  release  is  exactly  what  all  of  the  par- 
ties agreed  under  seal  was  due  for  the  grad- 
ing and  landscaping. 

But  that  it  not  all.  Morrow  Bros,  not  only 
knew  that  Arthur  &  Boyle  were  doing  the 
tunneling,  but  according  to  the  uncontradicted 
evidence  Charles  Morrow  told  Parlett  In 
Boyle's  presence  to  get  them  to  work  right 


away,  and  Parlett  ga^e  tlKou  a  ^irltten  order 
to  do  the  work,  which  work  U  Is  not  denied 
they  did.  The  $1,800  which  they  did  pay 
was  paid  to  Parlett  in  Boyle's  presence,  and 
then  turned  over  to  blm  in  Morrow  Bros.' 
office.  Parlett  was  criticized  at  the  argument 
for  making  in  thda  case  statements  con- 
tradictory to  and  inconsistent  with  his  evi- 
dence In  the  suit  which  Arthur  &  Boyle 
brought  against  Morrow  Bros,  for  the  balance 
due  for  the  tunneling  work,  but  it  cannot 
properly  be  said  that  his  explanation  is  an  un- 
reasonable one.  He  testified  in  the  other  case 
that  the  money  was  due  to  Arthur  &  Boyle; 
and  not  to  him,  and  he  said  at  this  trial  thai 
he  then  thought  it  did.  They  did  the  work, 
and  under  the  facts  about  their  employment 
shown  by  the  record  he  might  well  have  be- 
lieved that  they  were  entitled  to  the  money. 
As  Arthur  &  Boyle  did  the  work,  if  their 
charges  for  It  amounted  to  all  that  Morrow 
Bros,  were  to  pay  for  it,  the  pn^er  thing 
for  Parlett  to  do  was  to  treat  It  as  their 
money,  and  not  his.  When  the  court  deter- 
mined that  Arthur  &  Boyle  could  not  recover 
from  Morrow  Bros,  and  that  Parlett  was  re- 
sponsible to  them,  he  then  very  properly 
concluded  that  the  money  was  due  him.  It 
certainly  was  not  intended  by  the  court,  or 
any  one  else,  that  it  should  not  be  paid  to 
some  one.  It  was  due  either  to  Arthur  & 
Boyle  directly,  or  to  Parlett  for  their  bene- 
fit. He  admits  that  he  made  a  memorandum 
in  his  book  of  the  amount  and  sent  Morrow 
Bros,  a  notice  of  it,  bat  he  says  that  his  idea 
was  that  he  was  to  collect  it  and  pay  it  to 
Arthur  &  Boyle.  As  be  had  given  the  written 
order  to  Arthur  &  Boyle  to  proceed  with  the 
work,  it  was  perfectly  proper  for  him  to 
make  and  keep  a  memorandum  of  it,  but  the 
only  money  that  has  been  paid  he  paid  over 
at  once  to  Arthur  &  Boyle  in  the  presence 
of  Mr.  Morrow. 

[2]  The  fact  that  neither  of  the  Morrows 
went  on  the  stand  is  significant  and  raises 
a  presumption  against  them.  Dawson  v. 
Waltemeyer,  91  Md.  328,  46  Atl.  904.  Their 
claim  that  they  are  released  from  the  sum 
due  is  simply  based  on  the  fact  that  the  re- 
lease is  under  seal,  and  not  even  on  a  con- 
tention that  they  have  paid  the  money.  We 
are  therefore  of  the  opinion  that  under  the 
evidence  the  release  did  not  apply  to  the 
contract  for  tunneling,  and  hence  the  fact 
that  it  was  under  seal  can  make  no  differ- 
ence. 

That  being  so,  no  reason  appears  from  the 
record  why  Parlett  cannot  sue  Morrow  Bros., 
and  there  can  be  no  application  of  the  gen- 
eral principle  referred  to  in  the  opinion  of 
the  lower  court,  and  In  the  authorities  cited 
by  the  apiwllees,  that  ordinarily  the  test  of 
the  liability  of  a  garnishee  is  whether  he 
had  property,  funds,  or  credits  in  his  hands 
for  which  the  debtor  can  sue  him.  That  gen- 
eral principle  is  clearly  and  thoroughly  es- 
tablished by  2  Poe  on  PI.  &  Pr.  g  531,  B.  & 
O.  R.IU  Co.  V.  Wheeler,  18  Md.  372,  Myer  v. 


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Insurance  Co.,  40  Md.  695,  and  many  otber 
authorities  which  could  be  dteU,  If  there  was 
any  doubt  about  It. 

[3]  But  there  are  well-recognized  excep- 
tions to  the  general  nile,  one  of  which  Is 
that,  If  a  creditor  has  fraudulently  conveyed 
property  to  another,  the  grantee  may  be 
charged  as  garnishee.  Odend*hal  v.  Devlin, 
48  Md.  439;  Farley  v.  Colver,  113  Md.  379, 
386,  7T  AtL  589;  Hodge  &  McLane  on  At- 
tachments, i  148.  If  he  has  conveyed  it 
contrary  to  the  Statute  of  ESizabeth,  it  comes 
within  the  exception. 

[4-6]  But  if  the  release  had  included  this 
fund,  then  it  would  have  been  null  and  void 
and  of  DO  efTect  as  against  the  appellants 
or  other  creditors  of  Pariett  He  testified 
that  he  had  no  means  with  which  to  pay  this 
Judgment,  and  it  was  in  effect  conceded  at 
the  argument  that  he  was  Insolvent  If  a 
debtor  and  creditor  can  discharge  an  indebt- 
edness simply  by  having  the  creditor  execute 
an  Instrument  like  this  under  seal,  and  the 
creditor  has  no  other  means  with  which  he 
can  pay  his  debts,  then  indeed  might  it  be 
properly  charged  that  the  law  encourages 
fraud  and  protects  fraudulent  transactions, 
instead  of  protecting  honest  and  innocent 
people  from  attempts  to  defraud  them.  We 
do  not  mean  to  say  that  there  was  intention- 
al fraud  in  this  matter,  but  If  It  was  in- 
tended to  get  rid  of  this  indebtedness  for  no 
sufficient  consideration,  and  thereby  put  it 
beyond  the  reach  of  the  creditors  of  Pariett, 
it  was  certainly  what  the  law  condemns. 
Pariett  swears  positively  that  it  was  not  in- 
tended to  release  this  claim.  The  Morrows 
are  silent  The  Statute  of  13  Eliz.  (chapter 
6)  has  frequently  been  before  this  court.  A 
voluntary  conveyance  is  prima  fade  invalid 
as  against  existing  creditors  of  the  grantor 
who  has  no  suffident  means  to  pay  his  debts. 
Independent  of  that  conveyed,  without  regard 
to  his  actual  intent  or  to  that  of  the  grantee. 
Christopher  v.  Christopher,  64  Md.  583,  588, 
3  Atl.  296;  Cone  v.  Cross,  72  Md.  102,  105, 
19  Atl.  391.  The  burden  is  on  the  party 
daiming  under  the  conveyance  to  prove  that 
a  debtor  bad  sufficient  property  with  which 
to  pay  his  debts,  exclusive  of  that  conveyed 
away.  It  is  not  necessary  in  order  to  bring 
a  conveyance  within  the  statute  that  there 
shall  be  an  actual  Intent  on  the  part  of  the 
grantee  to  perpetrate  a  fraud.  If  the  neces- 
sary effect  and  operation  be  to  hinder,  delay, 
or  defraud  creditors,  the  legal  presumption 
is  that  it  was  made  for  that  purpose.  Schu- 
man  v.  Peddlcord,  50  Md.  560,  563;  Riley  v. 
Carter,  76  Md.  581,  600,  25  Atl.  667,  19  I* 
R.  A.  489,  35  Am.  St.  Rep.  443;  1  Alex.  Br. 
Stat  (Coe's  Ed.)  507,  note  21.  If  the  release 
had  its  origin  in  fraud,  or  what  the  law 
deems  fraud,  it  would  make  no  difference 
that  it  was  under  seal.  Schaferman  v.  O'Bri- 
en, 28  Md.  565,  676,  92  Am.  Dec.  708 ;  Younss 
V.  Trustees  of  PubUc  Schools,  31  N.  J.  Eq.  290. 


The  statute  Is  aiipUcable  to  release  of 
debta  Blgelow  on  BYaud.  Con.  132;  May 
on  Fraudulent  and  Voluntary  Dis.  of  Prop. 
(3d  Ed.)  15, 16,  20,  21;  Moore  on  Fraud.  Con. 
p.  eO,  I  19;  Hanser  v.  King,  76  Va.  731,  737; 
12  R.  O.  L.  507,  f  36;   20  Cya  364,  406. 

It  follows  from  what  we  have  said  that 
there  was  error  in  granting  the  garnishee's 
second  prayer  and  rejecting  the  plaintiff's 
prayers.  In  this  state  the  practice  uas  been 
and  is  to  permit  a  creditor  to  resort  in  such 
cases  to  either  of  two  remedies,  that  of 
attachment  or  by  bill  in  equity  (Stockbrldge 
V.  Fahnestock,  87  Md.  127,  136,  39  AtL  95. 
and  cases  there  dted);  and  hence  we  have 
not  thought  It  necessary  to  refer  to  the  Juris- 
diction of  a  law  court,  as  it  is  well  estab- 
lished. 

Judgment  reversed,  and  new  trial  award- 
ed ;  the  appellees  to  pay  the  costs,  above  and 
below. 

(131  Md.  29<) 
SOULSBY  et  al.  v.  AMERICAN  COLONIZA- 
TION SOC.  et  al.    (No.  54.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

Appeal  and  £rbob  «=>1203(5)— Mandate- 

DlSUISSAI.. 

In  a  suit  by  the  residuary  legatees  of  the 
grantor  of  the  trust  to  declare  it  void,  a  judg- 
ment of  the  Court  of  Appeals  on  a  former  ap- 
peal that  the  trustees'  adversary  possession  of 
the  trust  property  for  more  than  20  years  prior 
to  the  suit  was  a  bar  to  its  recovery  by  the  peti- 
tioners, notwithstanding  a  statement  in  the  opin- 
ion that  the  trust  was  void  because  conflicting 
with  the  rule  against  perpetnitiea,  was  a  deter- 
mination that  the  petiUoners  bad  no  right  of  ac- 
tion, so  that,  after  mandate,  the  lower  court's 
decree  dlBmissing  the  petition  was  correct 

Appeal  from  Circuit  Court  of  Baltimore 
City;   Walter  I.  Dawkios,  Judge. 

Suit  by  Robert  Soulsby  and  others  against 
the  American  Colonization  Sodety,  Ferdi- 
nand C.  Latrobe,  and  another,  trustees.  De- 
cree sustaining  the  demurrers  to  the  petition 
and  dismissing  the  petition,  and  petitionera 
appeal.     Decree  affirmed. 

Argued  before  BOYD,  C.  J.,  and  BRIS- 
COE, BURKE,  PATTISON,  URNBB,  STOCK- 
BRIDGE,  and  CONSTABLE,  JJ. 

Leigh  Bonsai,  of  Baltimore,  for  appellants. 
William  O.  Johnson,  of  Washington,  D.  (X. 
and  D.  K.  Este  Fisher,  of  Baltimore,  for  ap- 
pellee American  Colonization  Soc.  ChariM 
F.  Stein,  Eugene  O'Dunne,  and  Donald  B. 
Creecy,  all  of  Baltimore,  for  appellees  Ferdi- 
nand C.  Latrobe  and  James  W.  Harvefi  trus- 
tees. 

CONSTABLE,  J.  This  appeal  arises  from 
a  misunderstanding  of  the  meaning  and  ef- 
fect of  the  mandate  together  with  the  opin- 
ion of  this  court  In  the  case  of  the  American 
Colonization  Sodety  v.  Robert  Soulsby  et  al., 
129  Md.  605,  99  Atl.  844,  L.  R.  A.  1917a 
937. 

We  need  only  refer  briefly  to  the  facts  of 


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the  litigation,  tor  thfey  were  set  out  very 
fully  In  the  careful  and  comprehensive  opin- 
ion prepared  by  Judge  Pattlson  on  the  for- 
mer appeal.  Caroline  Donovan  In  1886  ex- 
ecuted a  declaration  of  trust,  In  which  she 
provided  that  after  her  death  certain  enum- 
emted  real  property  should  be  held  by  speci- 
fied trustees,  and  the  net  income  paid  over 
to  the  American  Colonization  Society  for 
the  transportation  annually  to  LlBeria  of 
such  colored  persons  as  might  desire  to  emi- 
grate to  that  country,  with  the  further  pro- 
vision that,  if  in  any  one  year  the  cost  of 
transportation  for  that  year  should  not  re- 
quire the  whole  of  the  net  Income  for  that 
year,  the  Income,  or  any  balance,  should  be 
used  by  the  said  society  for  the  maintenance 
of  public  schools  for  the  education  of  col- 
ored children  In  liberla.  It  was  provided 
that  the  trust  was  to  be  under  the  supervi- 
sion of  a  court  of  equity;  so  therefore  at 
the  death  of  Caroline  Donovan,  in  March, 
1890,  the  circuit  court  of  Baltimore  dty  as- 
sumed Jurisdiction  of  the  trust;  and  from 
that  time  to  the  present  the  trustees  have 
collected  ttae  rents  from  the  properties  and 
paid  the  net  Income  over  to  the  society. 

The  American  Colonization  Society  is  a 
Maryland  corporation  incorporated  in  the 
year  1831,  and  was  empowered  under  a  new 
charter,  passed  In  1837,  to  purchase,  have, 
and  enjoy  any  lands  by  the  gift,  bargain, 
sale,  devise,  or  otherwise  of  any  person,  to 
take  and  receive  any  sums  of  money,  goods, 
or  chattels  that  should  be  given  to  It  in  any 
manner,  and  to  occupy,  use,  and  enjoy,  sell, 
transfer,  or  otherwise  dispose  of  the  same 
as  it  should  "determine  to  be  most  conducive 
to  the  colonization,  with  their  own  consent 
In  Africa,  of  the  free  people  of  color  re- 
siding in  the  United  States." 

The  appellants  and  petitioners,  who  are 
the  lieirs  at  law  and  residuary  legatees  of 
Caroline  Donovan,  fl'ed  their  petition  in  this 
cause,  praying  that  the  trust  properties 
might  be  delivered  over  them,  upon  the 
ground  that  the  trust  was  void.  The  reasons 
assigned  for  Its  invalidity  were  twofold,  or 
In  the  alternative.  They  contended,  in  the 
first  place,  that  the  declaration  of  trust  was 
void  as  contravening  the  rule  against  per- 
petuities and  for  Indeflnlteness,  and  again 
that,  even  though  it  should  be  found  that  for 
those  reasons  It  was  not  void  ab  Initio,  yet 
nevertheless  It  had  since  become  inoperative 
and  void,  because  the  objects  and  purposes 
for  which  It  had  been  created  could  no  long- 
er be  accomplished. 

Demurrers  were  filed  to  the  petition  on 
various  grounds,  including  the  ground  that 
adversary  possession  for  several  years  more 
than  the  statutory  period  completely  barred 
all  recognition  of  the  petitioner's  claim.  The 
lower  court  overruled  the  demurrers,  and 
the  trustees  and  the  society  appealed  to  this 
court.  This  court,  in  disposing  of  the  ap- 
peals, entered  the  order  as  follows:  "Order 
l«Tersed,  and  cases  remanded;    the  appel- 


lees to  pay  the  costs."  After  the  mandate 
was  received  below,  the  petitioners  asked 
leave  to  amend  the  petition,  but  this  the 
court  refused  to  permit,  and  entered  a  de- 
cree sustaining  the  said  demurrers  and  dis- 
missing the  petition.  B^m  this  decree  the 
petitioners  have  takoi  the  present  appeal. 

As  we  said  In  the  beginning  of  this  opinion, 
this  appeal  arises  from  a  misconception  of 
the  effect  of  the  order  on  the  first  appeal. 
The  appellants  have  laid  hold  of  certain 
pessages  In  the  opinion  the  meaning  of 
which,  when  considered  with  the  whole  of 
the  text,  gives  no  aid  to  the  appellants' 
present  contentions,  and  were  not  intended 
to  do  so  when  adopted  by  us.  From  the 
passages  they  argue  that,  when  this  court 
reversed  the  previous  decree  and  remanded 
the  cause,  It  must  have  Intended  that  the 
petitioners  were  to  be  allowed  to  amend. 
The  fact  Is  that  this  court  intended  exactly 
what  it  has  Intended  In  a  great  nnmber  of 
cases  where  similar  orders  have  been  passed, 
where,  by  the  opinion  filed,  It  appeared  that 
the  complainants'  or  petitioners'  contentions 
had  been  ruled  against,  that  is,  to  have  the 
lower  court  enter  the  decree  of  dismissal. 

As  stated  above,  the  petitioners  had  two 
contentions — one  that  the  trust  was  void  ab 
initio;  the  other,  that  although  the  courts 
should  find  that  the  trust  was  not  void  ab 
initio,  yet  It  must  be  found  that  it  was  void 
now,  for  the  reas<m  that  the  purposes  for 
which  It  had  been  created  were  no  longer 
available.  Judge  Pattlson  in  delivering  the 
opinion  of  the  court  first  dealt  with  the 
former  contention,  and,  after  reviewing  sev- 
eral of  our  leading  cases  treating  of  the 
rule  against  perpetuities,  announced  our  con- 
clusion in  the  following  plain  and  unequivo- 
cal language: 

"Whatever  may  be  the  law  elsewhere,  we,  fol- 
lowing the  decisions  of  this  court,  must  hold  the 
trust  in  this  case  to  be  void  because  it  is  a  per- 
petuity, in  that  it  attempts  to  create  an  active 
trust  which  is  required  to  continue  beyond  the 
period  limited  by  the  rule,  but,  although  the 
trust  is  void  for  the  reason  stated,  the  petition- 
ers are  havred  from  recovery  upon  the  ground 
of  its  invalidity,  resulting  from  tmch  cause,  be- 
cause of  the  adversary  possession  of  the  trustees 
of  the  trust  property  for  a  period  of  more  thaa 
20  yeai-s  prior  to  the  institution  of  these  pro- 
ceedings." 

And  in  support  of  the  latter  part  of  the 
above  Needles  v.  Martin,  33  Md.  618,  was 
cited  and  quoted  from  with  several  cita- 
tions of  authorities  to  the  same  effect 

This,  then,  became  the  law  of  the  case, 
and  the  correct  law,  as  we  then  thought  and 
now  think.  In  our  opinion,  when  we  held 
that  the  adversary  possession  by  the  trustee 
of  the  trjst  property  was  a  bar  to  Its  recov; 
ery  by  the  petitioners,  we  Intended  to  say 
Just  what  the  words.  In  their  ordinnry  mean- 
ing, import;  that  Is,  that  whatever  rights 
the  petitioners  might  have  had  at  one  time 
had  been  lost  because  others  had  acquired 
them  through  operation  of  law.  This  abso- 
lutely settled  the  case,  in  so  far  as  the  peti- 


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(Md. 


tloners  were  concerned,  without  the  neces- 
sity of  adverting  to  the  other  contention  of 
the  petitioners,  based  upon  the  theory  thac 
the  trust,  at  the  time  of  its  creation,  was 
a  Talld  one,  but  had  since  become  void 
through  the  Impossibility  of  carr>'ing  out 
Its  objects.  But  It  was  thought  proper,  and 
perhaps  helpful  as  a  matter  of  pleading,  to 
point  out  why  the  allegations  of  the  peti- 
tion that  the  grantor's  objects  and  purposes 
were  not  being  carried  out  were  insufficient, 
and  the  demurrers  thereto  would  have  had 
to  be  sustained.  If  a  different  view  bad  been 
taken  of  the  question  of  adverse  possession. 

The  lower  court  by  Its  order  dismissing 
the  petition  correctly  expressed  the  man- 
dates of  this  court. 

Decree  affirmed ;  the  appellants  to  pay  the 

!<OSt8. 


(130  Md.  ett) 

HOEW  V.  KIDD. 


(No.  69.) 


(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

Brokkbs  <S=»88(1)— ComiissiON— Recovkey— 
JUBY  QcEsnoR. 
In  an  action  for  connnissions  on  the  snle  of 
timber,  held  that  the  case  was  properly  submit- 
ted to  the  jury ;  the  evidence  as  to  the  agree- 
ment that  defendant  was  to  be  the  judge  wheth- 
er plaintiff  actually  made  the  sale  being  contra- 
dictory. 

Appeal  from  Circuit  Court,  Baltimore  Coun- 
ty; Prank  I.  Duncan,  Judge. 

Action  by  Frank  B.  Kidd  against  Frank  N. 
Hoen.  Judgment  for  plaintiff,  and  defendant 
appeals.    Affirmed. 

Argued  before  BOYD,  C.  J.,  and  BURKE, 
THOMAS,  PATTISON,  DBNER,  and  STOCK- 
BRIDGE,  JJ. 

Elmer  J.  Cook,  of  Towson  (Prank  J.  Hoen 
and  Willis  &  Willis,  all  of  Baltimore,  on  the 
brief),  for  appellant.  T.  Scott  Offutt,  of  Tow- 
son,  for  appellee. 

STOOKBRTDQR,  J.  This  appeal  Is  from  a 
Judgment  for  $170,  rendereSfl  In  the  circuit 
court  for  Baltimore  county  in  a  suit  to  re- 
cover commissions  on  a  sale  of  timber  grow- 
ing on  some  land  belonging  to  the  appellant. 
There  is  but  (me  bill  of  exceptions.  That 
was  reserved  to  the  action  of  the  trial  court 
upon  tlie  prayers.  The  first  instruction  asked 
for  by  the  defendant  was  that  there  was  no 
evidence  legally  sufficient  to  entitle  the  plain- 
tiff to  recover,  and  tliat  the  verdict  must  be 
for  the  defendant.  It  is  upon  the  rejection 
«f  this  prayer  that  the  appellant  lays  the 
most  stress,  and  it  is  to  this  that  considera- 
tion must  first  be  given. 

In  the  early  part  of  September,  1915,  Mr. 
Kldd,  a  real  estate  broker,  called  on  Mr. 
Prank  H.  Hoen  relative  to  a  sale  of  the  tim- 
ber on  some  200  acres  of  land  belonging  to 
the  latter  in  Baltimore  county.  He  produced 
•  contract  which  Mr.  Hoen  refused  to  sign. 
Mr.  Kidd  got  up  to  leave,  saying : 


"  1  can't  do  any  bnsiness  with  yon  7*  and  I 
said,  'No,  sir;  none  at  all;'  and  he  started  out 
the  door,  and  then  he  came  back  and  he  said, 
'Now,  Mr.  Hoen,  suppose  I  could  procure  a 
purchaser  for  this  tract  of  timber;  you  would 
not  object  to  paying  me  the  comicission?'  and  I 
said.  'No;  if  I  could  know  you  were  able  to  sell 
it  and  actually  did  it,  I  would  not  object  to 
paying  you  the  commission,  but  under  no  cir- 
cumstances would  I  give  ^ ou  the  order  or  com- 
mission you  to  act  for  me  in  the  premises  at  all; 
I  would  have  to  be  the  judge  as  to  whether  you 
actually  made  the  sale  or  not ;'  he  said,  That  is 
perfectly  satisfactory  to  me;  you  are  responsi- 
ble; that  is  perfectly  satisfactory;'  and  with 
that  he  went  out" 

Tills  Is  the  account  of  the  first  Interview 
as  given  by  Mr.  Hoen.  Mr.  Kidd's  version 
is  much  shorter.  He  denies  positively  the 
statement  that  Mr.  Hoen  was  to  be  the  judge 
whether  Mr.  Kidd  made  the  sale  or  not,  and 
described  the  interview  In  this  way : 

"t  told  him  I  was  in  the  real  estate  business 
and  sold  farms  and  also  sold  timber,  and  Mr. 
Hoen  said  that  if  I  would  bring  or  send  a  man 
I  would  get  five  per  cent  commissions,  and 
he  asked,  first,  who  paid  the  commissions  and 
1  s.i!d,  the  man  selling  it,  and  I  told  him  I  sold 
farms  too,  and  I  think  I  left  him  a  form — I  for- 
get what  yon  call  it—*  form  where  yon  fill  oat 
a  blank  form." 

Mr.  Kldd  went  to  Natwlck  &  Co.  to  en- 
deavor to  induce  them  to  pnrcliase  the  tlmbw. 
and  on  September  14th  this  firm  wrote  to  Mr. 
Hoen,  looking  to  a  i)0ssible  purchase.  This 
letter  was  followed  up  by  a  call  on  Mr.  Hom 
by  Mr.  Natwick  on  October  31st  The  prog- 
ress was  slow,  and  the  deal  not  finally  con- 
summated until  January  26,  1916,  but  negoti- 
ations do  not  seem  to  have  been  ever  definite- 
ly broken  off,  and  on  frequent  occasions, 
either  by  calls  or  conversations  over  the  tele- 
phone, Mr.  Kldd  continued  to  press  the  com- 
pletion of  the  sale. 

At  some  time  during  this  period  a  Mr.  Sny- 
der appears  upon  the  scene,  and  it  Is  sug- 
gested that  he  was  or  might  have  been  the 
eUlcient  cause  in  coasumraatlng  the  transac- 
tion. Mr.  Natwick's  testimony  in  relation 
to  Snyder  makes  It  seem  as  though  his  call 
was  of  a  social  rather  than  business  nature. 
The  case  as  presented,  therefore,  cannot  be 
said  to  have  been  so  entirely  devoid  of  evi- 
dence as  to  warrant  the  court  in  withdrawing 
it  from  the  consideration  of  the  Jury.  On 
one  material  point  there  was  a  direct  contra- 
diction between  the  plaintiff  and  defendant 
and  it  was  for  a  Jury,  not  the  court  to  say 
which  was  the  correct  version. 

The  subject  of  real  estate  brokers  commis- 
sions has  t>een  a  most  fruitful  occasion  for 
litigation,  and  decisions  defining  the  law 
governing  them  can  be  found  in  every  state 
in  this  country.  Nowhere  have  the  prin- 
ciples controlling  such  controversies  been 
more  clearly  stated  than  in  Maryland.  Snch 
cases  as  Keener  v.  Harrod,  2  Md.  70,  66  Am. 
Dec.  706;  Martlen  v.  Baltimore,  109  Md  260. 
71  AO.  966;  Walker  v.  Baldwin,  106  Md. 
632,  68  Atl.  25;    Slagle  v.  RusseU,  U4  Md. 


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BECKER  r.  FAEDERICK  W.  UPPS  CO. 


788 


418,  80  Aa  164;  Way  v.  Ttumer,  127  Md. 
327,  96  Aa  676,  aad  DanieOs  t.  Iglehart, 
decided  at  the  present  term  (no  opinion 
filed),  bare  fuUy  covered  every  principle  in- 
volved In  this  case,  and  a  mere  repetition  of 
what  was  said  in  these  cases  would  be  super- 
flaons. 

Objection  ta  the  other  prayers  was  not 
strenuously  Insisted  on,  and,  even  if  It  had 
been,  no  reversible  error  is  apparent  in  any 
of  them ;  and,  as  the  plaintiff  produced  suffi- 
cient evidence  to  require  the  submission  of 
the  case  to  a  Jury,  the  Judgment  appealed 
from  will  be  affirmed. 

Judgment  affirmed. 


(m  Md.  301) 

BECKE3R  V.  FREDERICK  W.  UPPS   CO. 

(No.  57.) 
(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  BooiTT  <S=»43— Legal  Reiocdt. 

Where  plaintiff's  right  of  action  is  not  de- 
pendent upon  or  based  upon  some  equitable  mat- 
ter, such  OS  fraud,  mistake,  accident,  trust,  ac- 
counting, or  the  like,  and  tlie  legal  remedy  would 
be  complete,  adequate,  and  certain,  courts  of 
equity  liavc  no  concurrent  jurisdiction,  and  will 
not  interpose. 

2.  Account  $=3l2  —  Surr  fob  AcconNTiNO  — 
BiLu 

Bill  in  equity  brought  by  the  purchaser  of  a 
year's  output  of  empty  barrels  from  a  manufac- 
turer of  confections,  which  bill  alleged  that  the 
confectioner  failed  to  deliver  empty  sngar  bar- 
rels, and  that  plaintiff  bad  no  way  to  ascertain 
what  number  constituted  the  entire  output  of 
sugar  barrels  for  the  year,  and  prayed  for  a 
discovery  and  accounting  and  damages,  could 
not  be  maintained  as  a  suit  for  an  accounting. 

3.  DlSCOVKBT    «C=>6— ADXILUBT    REMEDY. 

IMscovery  in  equity  to  support  an  action  at 
law  or  as  auxiliary  to  the  maintenance  of  a 
anit  contemplated  to  be  brought  can  be  resorted 
to  only  where  the  discovery  is  essential  and 
absolutely  nocessarr  to  the  establishment  of 
plaintiff's  rights,  '  and  the  information  cannot 
be  otherwise  obtained.  . 

4.  DiscovEBY  «=»3  —  BiLt,  —  Possibility  of 

DiSCOVEBY  AT  TAW— StATUTB, 

Bill  by  pnrehnser  of  a  year's  output  of  empty 
sugar  barrels  from  a  confectioner,  which  alleged 
nondelivery,  and  prayed  discovery,  and  a  judg- 
'  ment  for  damages,  >  was  not  maintainable  as  a 
bill  for  discovery,  so  that  the  court  would  pro- 
ceed to  determine  the  whole  matter  in  contro- 
versy, as  the  discovery  prayed  for  would  have 
been  available  to  plaintiff  under  Code  Pub.  Gen. 
T^ws  1904,  art.  75,  H  99  and  100,  providing 
mode  of  procuring  prodootion  of  books,  papers, 
and  testimony  in  a  court  of  law. 

Appeal  fnnn  Oircnlt  Court  of  Baltimore 
City ; '  H.  Arthur  Stump,  Judge. 

rPo  be  bffldaliy  reported*" 

Suit  by  William  Becker,  trading  as  Wil- 
liam Becker  &  Co.,  against  the  Frederick  W. 
Liipps  Company,  a  body  corporate.  From  an 
order  sttstainlng  demurrer  and  dismissing  the 
bill,  plaintiff  appeals.    Order  affirmed. 

Argued  before  BOYD,  O.  J.,  and  BRISCOE, 
BURKE,  THOMAS,  PATTISON,  URNER, 
STOCKBRIDGB,  and  CONSTABLE,  JJ. 

Louis  S.  Ashman  and  George  Weems  Wil- 
liams, both  of  Baltimore  (Lucius  Q.  C.  Ia- 


mar,  of  Baltimore,  on  the  brief),  for  appellant. 
Laurie  H.  Riggs,  of  Baltimore  (C.  R.  Watten- 
Scheldt,  of  Baltimore,  on  the  brief),  for  ap- 
pellee. 

BRISCOE,  J.  The  questions  for  decision 
in  this  case  are  raised  upon  a  demurrer  to 
a  bill  In  equity  whidi  was  sustained  by  the 
circuit  court  of  Baltimore  city.  The  bill 
was  accordingly  dismissed,  and  leave  of  the 
plaintiff  to  amend  was  denied. 

The  principal  defense  made  on  the  demur- 
rer and  relied  upon  in  argument  Is  that  the 
circuit  court  of  Baltimore  city  haa  no  Juris- 
diction of  the  subject-matter  of  the  suit,  be- 
cause the  cause  of  action  and  relief  demand- 
ed are  fully  legal  in  their  nature  and  prop- 
erly cognizable  in  a  court  of  law. 

The  facts  of  the  case  out  of  whidi  the  con- 
troversy arose  and  upon  which  the  decision 
of  the  case  must  turn  are  stated  and  ap- 
pear from  the  averments  of  the  bill  and  are 
admitted  by  the  demurrer  to  be  true.  They 
are  these: 

The  plaintiff  is  engaged  In  the  cooperage 
business  In  the  city  of  Baltimore,  and  in  the 
conduct  of  the  business  and  In  connection 
therewith  buys  and  sells  empty  barrels  of 
various  kinds.  The  defendant  is  engaged  in 
the  manufacture  and  selling  of  chocolate  and 
confections  In  the  dty  of  Baltimore,  and  In 
connection  with  its  business  has  on  hand  a 
large'  number  of  empty  barrels  of  diffa«nt 
kinds  for  sale.  On  August  6,  1916,  the  plain- 
tiff agreed  to  purchase  and  the  defendant 
agreed  to  sell  all  of  defendant's  output  of 
empty  barrels  for  the  period  of  one  year 
from  the  15th  of  July,  1915,  to  the  15th  of 
July,  1916,  upon  the  terms,  conditions,  and 
prices  provided  by  a  contract  between  the 
parties,  which  will  more  fully  appear  from 
the  averments  of  the  bill  disclosed  by  the 
record  now  -  before  !!&  The  contract  was 
signed  in  duplicate,  is  filed  with  the  bill,  as 
Plaintiffs  fhchlbit  No.  4,  and  is  as  follows: 
"Baltimore.  Md.,  7/16/15. 

"This  agreement  made  this  15th  day  of  July, 
1915,  between  Wm,  Becker  &  Co.,  parties  of  the 
first  part,  and  the  Frederick  W.  Lapps  Company, 
parties  of  the  second  part,  all  of  Baltimore  city: 

"Parties  of  the  first  part  agree  to  purchase 
and  parties  of  the  second  part  agree  to  sell  all 
of  their  entire  output  of  empty  barrels,  as  they 
run,  no  deductions  to.  be  made  for  damaged 
barrels,  unless  by  mutual  consent,  prices  as  fol- 
lows: 

CondenMd  milk  oak  twrrela: (1.00 

Soft  wood  oondeased  mUk  barrels .80 

Glucose  barrels ,90 

Headdown  glucose  barrels 1...      .75 

Single  head  glucose  barrels .60 

Grain  alcobol  and  spirit  barrels. 1.00 

Olive  oil  and  cotton  seed  barrels..., I.0O 

Engine,  cylinder,  dynamo  oil  barrels 8& 

Double  head  sugar  barrels 20 

Damaged  and  single  head  sugar  barrel* .1!! 

Cocoanut,  originally  auga^  barrels.... Jfi 

"And  all  other  empty  packages  not  mentioned 
above  to  be  accepted  at  the  ruling  market  prices. 

"The  parties  of  the  first  part  guarantee  the 
above  prices  for  one  year  from  date,  and  agree 


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101  ATLANTIO  REPORTER 


(fli. 


to  promptly  remove  all  barrels  wben  notified  by  ] 
the  parties  of  the  second  part. 

"Witness  the  signature  of  the  parties  of  the 
first  part  and  the  parties  of  the  second  part 
duly  authorized  to  sign  this  agreement. 

"Terms:   Cash  on  delivery. 

"Accepted  August  5, 1915. 

"The  BYederick  W.  Lipps  Co.,    [Seal.] 
"By  Frederick  W.  Lipps,  Pres." 

The  bill  alleges  that  the  defendant  tailed 
to  deliver  to  bim  the  entire  output  of  empty 
sugar  barrels,  as  under  the  contract  it  was 
required  to  do,  but  has  at  all  times  refnsed 
to  deliver  any  of  said  barrels,  although  often 
demanded  so  to  do;  that  tbe  defendant  has 
broken  the  contract,  and  as  a  result  thereof 
tbe  plaintiff  has  suffered  a  very  substantial 
loss  and  damage  therefrom. 

The  bill  tben  alleges  tbat  the  plaintiff  has 
no  way  or  means  of  ascertaining  what  num- 
ber In  fact  constituted  tbe  defendant's  en- 
tire output  of  sugar  barreU  for  the  period 
of  one  year  mentioned  In  the  contract  be- 
cause the  facts  and  the  means  of  ascertaining 
them  are  in  tbe  exdusive  keeping  and  pos- 
session of  the  defendant. 

The  prayer  of  the  bill  Is,  in  substance, 
that  a  court  of  equity  decree  a  discovery,  an 
accounting,  and  the  defendant  also  be  de- 
creed to  pay  the  sum  ascertained  to  be  due 
tbe  plaintiff  as  damages  for  a  breach  of  the 
contract,  and  such  other  and  further  relief 
as  the  case  may  require. 

It  Is  contended  upon  the  part  of  the  de- 
fendant In  support  of  the  demurrer  that  tbe 
plaintiff's  relief  or  remedy,  if  any,  is  an  ac- 
tion at  law  for  the  recovery  of  damages  for  a 
breach  of  contract ;  (hat  a  court  of  equity  Is 
without  Jurisdiction  to  entertain  this  bill,  and 
the  plaintiff  ought  to  be  left  to  his  remedy  at 
law. 

On  the  other  hand.  It  is  urged  by  tbe 
plaintiff  tbat  the  bill  is  one  for  an  account- 
ing and  a  dis(»very,  and  that  a  court  of  eq- 
uity has  concurrent  jurisdiction  to  hear  and 
determine  the  case  under  tbe  averments  of 
the  bill.  The  doctrine  is  well  settled  in  this 
state  that,  where  a  party  has  a  certain,  com- 
plete, and  adequate  remedy  at  law,  he  can- 
not sue  In  equity.  Tbe  cause  of  action  in 
this  case,  it  will  be  seen,  is  clearly  and  pri- 
marily a  legal  one,  arising  from  tbe  nonper- 
formance of  a  contract  to  deliver  sugar  bar- 
rels, and  for  the  breach  of  which  damages 
are  sought  to  be  recovered  by  the  plaintifl 
from  the  defendant 

[1]  In  such  cases,  where  the  ri^t  of  ac- 
tion Is  not  dependent  upon  or  based  upon 
some  equitable  matter  such  as  fraud,  mistake, 
actddent,  trust,  accounting,  or  the  like,  and 
the  legal  remedy  would  be  complete,  suffi- 
cient, and  certain,  courts  of  equity  have  no 
concurrent  Jurisdiction,  and  will  not  inter- 
pose. 1  Pomeroy,  EX].  Jurisprudence,  H  17^ 
236;  Price  v.  Tyson,  3  Bland,  399,  22  Am. 
Dec.  279;  Powles  v.  Dllley,  9  Gill,  239; 
Taylor  v.  Ferguson,  4  Har.  &  J.  46. 

In  OUver  v.  Palmer.  11  OUl  &.  3.  444,  It 
Is  said,  if  In  a  case  like  the  present,  where 


the  dalm  asserted  Is  strictly  legal  In  Its 
form  and  substance,  where  the  remedf  at 
law  is  exi>editious  and  ample,  you  grant  to 
the  court  of  equity  the  power  ascribed  to  it 
upon  the  principles  upon  which  It  is  claimed, 
there  is  scarcely  a  case  resting  in  contract 
and  now  cognizable  in  a  court  of  law  wbldi 
may  not  be  drawn  into  the  vortex  of  chan- 
cery Jurisdiction. 

[2]  It  la  quite  certain  that  the  bill  in  this 
case  cannot  be  sustained  or  maintained  as  a 
suit  in  equity  for  an  accounting.  Its  alle- 
gations are  not  such  as  to  bring  it  within 
tliat  dass  of  cases  where  a  court  of  equity 
will  take  Jurisdiction  for  an  aocoont  UU- 
ler-s  EJqulty,  {  721,  p.  823;  1  Pomeroy,  Eq- 
uity Jurisprudence,  S  230;  Taylor  v.  Fergu- 
son, 4  Har.  &  J.  46.  But  it  is  insisted  on  tbe 
part  of  the  appellant  that  the  bill  is  framed 
for  discovery,  as  well  as  for  relief,  and  the 
court,  being  rightly  in  possession  of  the 
cause,  will  proceed  to  determine  the  whole 
matter  in  controversy. 

[3]  There  are  cases  where  a  discovery  may 
be  had  not  only  to  support  an  action  at  lav, 
but  as  auxiliary  to  the  maintenance  of  i 
suit  contemplated  to  be  brought,  but  they  are 
cases  where  the  discovery  Is  essential  and 
absolutely  necessary  to  the  establishment  of 
the  plaintiff's  rights,  and  the  InformatlOD 
cannot  be  otherwise  attained.  Wolf  v.  Wolf, 
2  Har.  &  J.  382,  18  Am.  Dec.  313;  Panott  v. 
Ohestertown  Bank,  88  Md.  S15,  41  AtL  1067; 
Heinz  y.  German  Bldg.  Ass'n,  95  Md.  160,  51 
Atl.  951 ;  Union  Passenger  Railway  Co.  v.  M. 
&  O.  0.,  71  Md.  238,  17  AtL  933. 

The  general  principle  is  stated  In  Russell 
T.  Clark,  7  Crandi,  90,  8  L.  Ed.  271,  as  fol- 
lows: 

"It  is  true  tbat,  if  certain  facts  essential  to 
the  merits  of  a  claim  purely  legal  be  ezdasiTel; 
within  tbe  knowledge  of  the  party  against  whom 
that  daim  is  asserted,  he  may  be  required  in 
a  court  of  chancery  to  disdose  those  facts,  and 
tho  court,  being  tous  rightly  in  possession  of 
the  cause,  will  proceed  to  determine  the  whole 
matter  in  controversy." 

In  Phelps'  Juridical  Equity,  ISO,  it  U  said 
that  not  much  stress  is  now  laid  upon  tbe 
auxiliary  jurisdiction  of  courts  of  equity, 
meaning  the  power  to  compel  discovery,  pro- 
duce docnments,  etc  since  those  powers 
have  been  by  statute  conferred  upon  tbe 
courts  of  law,  and  the  necessity  for  the  anx- 
lUary  jurisdiction  may  be  said  to  be  prac- 
tically almost  entirely  superseded,  althongh  i 
still  occasionally  resorted  to.  1  Pomeroy, 
Eq.  Jur.  ii  83,  124,  143,  215 ;  arUde  75,  U 
98,  99,  and  100,  Code  P.  O.  Laws. 

In  the  present  case  the  discovery  sought 
by  the  Mil  was  a  detailed  statement  of  tbe 
number  of  sugar  barrels  constituting  defend- 
ant's entire  output  for  the  year  begtnnbig 
July  15,  1915,  and  ending  July  15. 1916,  and 
that  the  defendant  be  required  by  decree  of 
this  court  to  pay  the  plaintiff  the  sum  as- 
certained to  be  due. 

[4]  It  is  clear  that  the  discovery  p«ir«<J 
for  in  the  bill  would  have  been  Available  to 


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WIIjHXXilf  V.  MZTCHELIi 


785 


the  plaintiff,  under  article  75,  |i  99  and  100, 
of  tlie  Code  In  a  conrt  of  law,  where  the 
mode  of  procnrlng  tbe  production  of  books, 
papers,  and  testimony  Is  provided  for  in  as 
ample  a  manner  as  In  a  conrt  of  equity,  and 
where  there  Is  an  adequate,  complete,  and 
suffldent  remedy  pointed  out  by  law,  courts 
of  equity  will  not  Interpose. 

For  the  reasons  which  we  have  stated,  we 
do  not  think  the  appellant  has  made  out  such 
a  case  as  entitles  him  to  relief  In  a  conrt  of 
equity,  but  that  his  case  Is  properly  cogniza- 
ble in  a  court  of  law. 

The  Older  of  the  court  below  sustaining 
the  demurrer  and  dismissing  the  bill  will  be 
affirmed. 

Order  afltoned,  with  costs. 


(131  Hd.  868) 

WII^HELM  V.   MITCHELI/.     (No.  22.) 

(Court  of  Appeals  of  Maryland.    Aug.  11, 1917.) 

COUBTS  €=>184— OOTJNTT  COUBTS— SUTTICIEN- 
CT  OF  DECLABATION. 

Under  section  18g  of  the  "Speedy  Judgment 
Act"  for  Baltimore  cotinty  (Acts  1894,  c.  631, 
as  amended  by  Acts  1012,  c.  386,  Acts  1914,  c 
817,  and  Acts  1916,  c.  184),  providing  that 
plaintiff  shall  not  be  entitled  to  judgment  an- 
lesa  in  an  action  founded  upon  an  implied  con- 
tract he  state  -  the  particulars  of  the  indebted- 
ness, a  declaration  on  the  common  counts  for 
a  phygician's  services,  two  of  the  items  being, 
"To  amount  of  account  rendered  August  31, 
1007,  $188,"  "to  amount  of  account  rendered 
May  6,  1006,  $29,"  without  disclosing  to  whom 
the  accounts  were  rendered  or  the  nature  of  the 
indebtedness  or  when  it  was  incurred,  gave  the 
court  no  jurisdiction  to  enter  judgment  thereon. 

Appeal  from  Circuit  C<ourt,  Baltimore 
County;  Frank  L  Duncan,  Judge. 

Action  by  Dr.  A.  R.  Mitchell  against  Clar- 
ence M.  Wllhelm,  administrator  of  Mary  J. 
Wilhelm,  deceased.  From  an  order  of  the 
circuit  court  for  Baltimore  county  overruling 
a  motion  to  strike  out  a  judgment  In  favor 
of  the  plaintiff,  defendant  appeals.  Reversed, 
and  new  trial  awarded. 

Argued  before  BOYD,  O.  X,  and  BURKE, 
THOMAS,  PATTISON,  URNBR,  and 
STOCKBRIDOS.  JJ. 

O.  Parker  Baker,  of  Baltimore,  for  appel- 
lant. T.  Scott  Offutt,  of  Towson  (John  Mays 
Little,  of  Towson,  on  tbe  brief),  for  appellee. 

PATTISON,  J.  This  Is  an  appeal  from  an 
order  of  the  circuit  court  for  Baltimore  coun- 
ty, overruling  a  motion  to  strike  out  a  judg- 
ment entered  In  favor  of  the  appellee  against 
the  appellant. 

The  suit  in  which  the  judgment  sought  to 
be  stricken  out  was  rendered,  was  brought 
on  May  26.  1916.  \inder  what  Is  known  as 
"the  Speedy  Judgment  Act"  for  Baltimore 
county,  chapter  631  of  the  Acts  of  1894,  as 
amended  by  chapter  385  of  the  Acts  of  1912, 
chapter  817  of  the  Acts  of  1914,  and  chapter 
184  of  the  Acts  of  1916. 


The  declaration  contained  the  common 
counts  only,  and  with  it  was  filed  the  follow- 
ing account  or  cause  of  action  verified  by  the 
affidavit  of  the  plaintiff: 

Monkton,  Md.,  Blarch  27,  191B. 

Estate  of  Mrs.  Mary  J.  Wilhelm,  to  Dr.  A.  B. 
Mitchell,  Dr. 

To  amt  of  acct  rendered  Aug.  31, 
1907  $183  00 

To  amt  of  acct.  rendered  May  6, 
1808 28  00 

To  subsequent  attention  as  fol- 
lows: 

1908,  May  8. 

1912,  May  28 

1915.  Feb.  16,  Feb.  26,  Feb.  27, 
Fet.  28..... 8  25 


$219  46 


$10  00 

10  00 

8  00 

25  00 


Credits: 
1909,  June  21,  cash 

Oct.  28,  cash 

1810,  Aug.  2,  cash 

Aug.  29,  cash 

Balance    $166  46  $53  00 

1916  Feb.  23  by  check  on  account    53  00 

The  defendant  being  duly  summoned,  but 
falling  to  appear  and  plead  to  the  declara- 
tion within  the  time  prescribe  by  the  stat- 
I  ute,  the  plaintiff  filed  his  motion  In  writing, 
'  as  provided  by  tbe  act,  asking  "the  court  to 
I  enter  a  judgment  by  default  against  the  de- 
!  fendant  for  want  of  proper  plea,  affidavit, 
<  and  certificate,  as  required  by  the  statute 
{ In  such  case  made  and  provided  and  •  •  • 
to  extend  said  judgment."  Upon  this  mo- 
tion a  judgment  was  entered  by  order  of  the 
court.  Thereafter  the  defendant  filed  his  mo- 
tion to  strike  out  the  judgment  so  entered, 
assigning  as  one  of  the  reasons  therefor  the 
insufficiency  of  the  account  under  the  provi- 
sion of  the  act,  under  which  the  action  was 
brought  and  the  judgment  rendered.  This 
motion  was  overruled,  and  It  Is  from  the  ac- 
tion of  the  court  in  overruling  It  that  this 
appeal  Is  taken.  The  act  provides  (chapter 
631,  i  18g,  of  the  Acts  of  1894),  that  the 
plaintiff  shall  not  be  entitled  to  Judgment 
under  the  provisions  of  said  act,  "unless  at 
the  time  of  bringing  his  action,  he  shall  file 
his  dedaratlon,  with  an  affidavit,  or  affirma- 
tion, •  *  •  stating  the  true  amount  the 
defendant  is  Indebted  to  him  over  and  above 
all  discounts,  and  •  •  •  if  the  action  be 
formed  ui>on  a  verbal  or  Implied  contract 
shall  file  his  statemeat  of  the  particulars  of 
the  defendant's  Indebtedness  thereunder." 

The  account,  as  stated  above,  Is  the  only 
cause  of  action  that  was  filed  In  the  case, 
and  should  It  be  found  that  It  does  not  meet 
the  requirements  of  the  statute,  In  that  It 
falls  to  give  a  statement  of  the  particulars  of 
the  defendiant's  Indebtedness,  the  plaintiff 
was  not  entitled  to  judgment  by  default  un- 
der the  aforesaid  statute,  and  the  court  was 
without  Jurisdiction  to  enter  the  judgment, 
and  its  Irregular  entry  could  in  no  way  aid 


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OU. 


or  supply  that  want  of  Jurisdiction.  Thlll- 
man  t.  Sbadrlck,  69  Md.  630, 16  Atl.  138.  As 
stated  In  Adier  ▼.  Crook,  68  Md.  491,  13  AtL 
153: 

"The  object  of  the  act  was,  in  cases  to  which 
it  applied,  to  obtain  from  both  plaiotiff  and 
defendant  a  definite  and  sworn  Etatement  of  both 
the  claim  and  the  defense  (if  any)  so  that  the 
parties  might  know  exactly  wherein  they  dif- 
fered and  shape  their  actions  accordingly." 

It  will  be  seen  from  an  examination  of 
the  account  which  is  dated  March  27,  1915, 
that  It  contains  but  three  debit  items, 
amounting  in  all  to  $219.25.  Two  of  these 
Items  aggregate  $211,  and  are  stated  as  fol- 
lows: 

To  amt.  of  acct  rendered  Ang.  31,  1907  $183.00 
To  amt.  of  acct  rendered  May  6,  1908    28.00 

It  appears  from  these  Items  that  two  sep- 
arate accounts  were  rendered  to  some  one, 
but  to  whom  they  do  not  disclose,  nine  and 
«lgbt  years,  respectively,  before  the  Institu- 
tion of  this  suit.  It  is  not  shown  by  the 
account  filed  what  these  accounts  so  render- 
«d  contained,  and  there  is  nothing  in  the 
Items  themselves  showing  the  nature  and 
-diaracter  of  the  alleged  indebtedness  or 
when  the  same  was  incurredt,  To  us  it  is 
dear  that  the  account  as  filed  does  not  set 
forth  the  particulars  of  such  alleged  iudebt- 
.  edness  as  required  by  the  statute,  and  there- 
fore the  judgment  was,  in  our  opinion, 
wrongfully  entered  under  the  statute,  and 
should  have  been  stricken  out  under  the  mo- 
tion filed. 

It  is  contended  by  the  appellee  that  as  the 
defendant  was  regularly  summoned  and  fail- 
ed to  file  his  plea,  the  plaintiff,  irrespective 
of  the  statue,  was,  at  the  time  of  the  entry 
of  the  judgment,  entitled,  under  the  rules  of 
the  court,  to  a  judgment  by  default  for  want 
of  such  plea,  and  therefore  should  it  be  held 
that  the  judgment  could  not  have  been  prop- 
erly entered  under  the  statute,  for  the  rea- 
son here  assigned,  its  entry  was  proper  under 
the  rule  of  the  drouit  court,  l>ecause  of  the 
failure  of  the  defendant  to  file  his  plea. 

The  rules  of  the  court  below  are  not  be- 
fore us,  but  whatever  may  be  said  of  the 
plaintiff's  rights  thereunder  to  a  judgment  by 
default  for  want  of  a  plea,  it  is  clearly 
shown  by  the  record  that  the  judgment  was 
not  entered  under  such  rule  of  the  court,  but 
was  entered  under  the  statute  (chapter  631 
of  the  Acts  of  1894),  as  amended  by  the  sub- 
sequent acts  named  above  and  as  we  have 
sdid  was  wrongfully  entered  thereunder. 

Holding  as  we  do  that  the  court  was  in 
error  in  its'  refusal  to  strike  out  the  judg- 
ment, its  rulings  will  be  reversed  and  a  new 
trial  awarded  so  that  the  judgment  wrong- 
fully entered  may  be  stricken  out  hnd  an 
opportunity  given  to  the  defendant  to  present 
his  defense  upon  the  merits. 

Judgment  reversed,  and  new  trial  awarded. 


CUl  UA.  SIB) 
BOABD  OP  POUCB  CXJM'RS  v.  McCLENE- 

HAN.     (Noa.  58  to  67.) 
(Court  of  Appeals  of  Maryland.    Jmie  28, 1917.) 

1.  Statutes   «=>76(2)— Local  Laws— Appu- 
eabilitt  os  eixistino  laws. 

Acts  1914,  c.  600,  Acts  1906,  c.  63,  Acta 
1900,  c.  560,  Acts  1908,  cc.  92,  192,  Acts  1902, 
c.  280,  Acta  1914,  c.  493,  Acts  1906,  c.  335, 
Acts  1914,  c  486,  Acts  1904,  c.  632,  and  AcU 
1916,  c.  2l2,  directing  the  board  of  i)olice  com- 
missioners of  Baltimore  to  pension  a  retired 
matron  of  the  station  house,  the  widow  of  a  de- 
ceased member,  and  certain  ex  members  of  the 
police  force,  are  not  in  conflict  with  Const,  art. 
3,  i  33,  prohibiting  the  passage  of  any  special 
law  where  provision  has  been  made  by  existing 
law;  such  pensions  not  being  payable  under 
the  pension  laws  existing  at  the  tmie  the  several 
acts  were  enacted. 

2.  Municipal   Cobfobations   «=9l87  — Pbn- 

SIONS — STATUTKt— DiSCBETION. 

Although  Acts  1906,  c.  63,-  authorizing  the 
police  commissioners  of  Baltimore  to  pension 
a  former  policeman,  was  discretionary,  and  not 
mandatory,  where  the  matter  bad  been  acted 
upon  by  the  board  then  in  office,  subsequ^it 
boards  could  not  revoke  it. 

Appeals  from  Superior  Court  of  Baltimore 
City ;   James  M.  Ambler,  Judge. 

Ten  petitions  fon  mandamus  by  E.  El  Mc- 
Clenehan  and  nine  others  against  the  Board 
of  Police  Commissioners.  The  court  ordered 
a  writ  of  mandamus  to  issue  in  each  case, 
and  the  Board  appeals.  Order  affirmed  in 
each  case. 

Argued  before  BOYD,  C.  J.,  and  BBIS- 
COE,  BUKKB.  THOMAS,  PATTISON, 
UltNER,  STOCKBRID6B,  and  CONSTA- 
BLE, JJ. 

Ogle  Marbury,  Asst.  Atty.  Gen.,  and  Al- 
bert C.  Ritchie,  Atty.  Gen.,  for  appellant. 
Isaac  Lobe  Straus,  of  Baltimore,  for  appel- 
lees. 

BOYD,  O.  J.  Ten  cases  were  by  agree- 
ment of  the  parties  and  with  the  consent  of 
tlie  court  boimd  in  one  record,  the  main  ques- 
tions being  involved  in  all  of  them.  Each  of 
the  ten  appellees  filed  a  petltlciB  for  a  man- 
damus against  tjie  board  of  police  commis- 
sioners of  Baltimore  dty  to  req.ulre  that 
board  to  obey  the  provisions  and  directions 
of  one  or  more  acts  of  the  General  Assembly 
of  Maryland  named  in  the  petition,  and  to 
pay  the  petitioner  the  sum  named  in  sucb 
act  or  acts.  The  main  defense  relied  on  in 
the  answers  was  that  the  acts  were  special 
laws  prohibited  by  article  3,  i  33,  of  the 
state  Constitution,  and  were  therefore  un- 
constitutional and  void.  Agreed  statements 
of  facts  were  filed  in  the  cases,  and  the  low- 
er court  ordered  a  writ  o£  mandamus  to  la- 
sue  in  each  case,  and  gave  judgment  for  the 
petitioner  for  costs.  Appeals  from  those  sev- 
eral orders  and  judgment  are  now  before  us. 

(Chapter  459  of  the  A^ts  of  1886,  behig  sec- 
tion 755  pf  article  4  of  the  Local  Code  of 
1888,  provided  that: 

"All  sums  of  money  which  are  now  in,  or 
which  may  hereafter  come  into  the  hands   of 


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787 


the  board  of  polks  eommiaaioners  for  the  dtr 
of  Baltimore,  ander  and  by  virtue  of  the  pron- 
siona  of  eziatine  laws,  except  such  sums  as 
may  come  into  tneir  hands  under  and  hy  virtue 
of  the  provisions  of  section  728  shall  constitute 
a  fund  to  be  known  and  accounted  for  as  the 
8pe<aal  fund." 

That  is  section  776  of  the  new  charter,  and 
is  nnder  subtitle  "Special  ¥Hind."  Section 
728  (747  Of  revised  charter  of  1915)  referred 
to  money  received  from  taxes,  and  in  case  of 
a  deficiency  the  board  was  authorized  to  Is- 
sue certificates  and  raise  therefrom  a  sum 
not  exceeding  $50,000  to  meet  the  exigency. 
The  board  has  large  powers,  including  the 
appointment  of  the  police  force,  detectives, 
matrons,  eta 

SecUon  756  of  article  4,  being  Acts  1886. 
c.  458,  as  amended  by  Acts  1888,  c.  306,  pro- 
vided that,  in  addition  to  the  sums  of  mon- 
ey authorized  by  law  to  be  paid  out  of  the 
special  fund,  the  board,  whenever  in  their 
opinion  the  eflSdency  of  the  service  required 
it,  were  antborlzed  to  retire  any  ofiBcer  of 
police,  policeman,  detective,  clerk,  or  turnkey 
appointed  by  them,  and  pay  him  out  of  said 
fund,  In  monthly  installments  a  sum  not  to 
exceed  one-third  of  the  amount  monthly  paid 
to  him  at  his  retirement,  provided  he  had 
served  faithfully  not  less  than  16  years,  or 
shall  have  been  permanently  disabled  in  the 
discharge  of  his  duties,  and  the  board  was  re- 
quired to  procure  and  file  among  their  rec- 
ords a  certificate  of  a  competent  and  reputa- 
ble physician  that  the  person  proposed  to  be 
retired  had  been  thoroughly  examined  by 
him  and  was  incapable  of.  performing  active 
police  duty,  etc.  That  section  was  amended 
by  several  acts,  so  that  as  It  is  now  in  the 
revised  charter  of  1915  it  provides  for  pay- 
ment of  a  snm  equal  to  one-half  of  that 
paid  at  retirement,  provided  be  had  served 
for  not  less  than  20  years,  and  some  other 
changes  were  made.  That  section  (756)  in 
the  new  charter  of  1S98  is  on  a  different  sub- 
ject, and  section  777  is  the  number  of  the 
one  relating  to  retirement  of  officers  of  police, 
policemen,  detectives,  clerks,  and  turnkeys, 
but  both  sections  756  and  777  are  in  the  revis- 
ed charter.  Section  750  in  the  revised  char- 
ter requires  those  retired  to  perform  such 
police  duties  as  the  board  requires,  not  to 
exceed  seven  days  during  any  year,  for  which 
service  no  compensation  Is  to  be  paid  by  the 
board.  Section  756A  (revised  charter),  added 
by  Acts  1912,  c.  189,  authorizes  the  board  to 
retire  any  officer  of  police,  policemen,  detec- 
tive, clerk,  or  turnkey  appointed  by  them 
who  may  be  ineligible  in  the  way  of  length 
of  service  to  retirement  on  pay  for  life  as 
provided  by  section  756,  and  who  has  served 
faithfully  and  has  become  permanently  In- 
capacitated from  active  duty,  and  to  pay 
him  out  of  the  special  fund  a  sum  not  ex- 
ceeding one  year's  salary  allowed  by  law  to 
him  at  the  time  of  his  retirement,  provided  a 
certificate  is  obtained  from  a  majority  of  the 
pcUce  physicians  of  Baltimore  city  that  be 


has  been  examined  by  them  and  that  he  Is 
incapable  of  performing  active  duty. 

Section  776  In  the  revised  charter  is  the 
same  as  section  755  quoted  above  frcnn  article 
4  of  the  Code  of  1888.  Section  776A  (Acts 
1900,  c.  266)  makes  the  board  of  police  com- 
missioners trustees  of  the  special  fund.  Sec- 
tion 776C  states  in  detail  what  the  special 
fund  shall  consist  of — amongst  other  things, 
of  2  per  cent  of  the  salary  or  pay  of  the 
police  force  entitled  to  participate  in  the  spe- 
dal  fund.  It  provide  that  it  shall  be  op- 
tional with  any  member  of  the  poUce  force  to 
contribute  the  2  per  cent,  but  that  no  mem- 
ber shall  participate  in  the  special  fund  un- 
less he  does  so  contribute.  The  confusion 
arising  from  having  two  sections  of  the  diar- 
ter  as  much  alike  as  756  and  777  seems  to 
have  begim  in  1888.  The  new  charter  is 
chapter  123  of  the  acts  of  that  session,  and 
in  that  what  was  section  756  of  article  4 
In  Code  of  1888  was  made  section  777,  but 
chapter  494  of  the  Acts  of  1888,  evidently 
drawn  before  the  new  charter  was  passed, 
in  amending  the  provision  for  retirement  re- 
ferred to  it  as  section  756.  Then  chapter  233 
of  Acts  of  1900,  chapter  81  of  Acts  of  1902, 
chapter  391  of  Acts  of  1910,  and  chapter  189 
of  Acts  of  1912  continued  to  refer  to  it  as 
section  756.  Then  chapter  667  of  Acts  of 
1912,  which  is  the  last  act  signed,  referred  to 
the  fact  that  chapter  391  of  Acts  of  1910  had 
erroneously  stated  the  section  to  be  756  in 
lieu  of  777,  the  correct  number  intended  to  be 
amended,  and  repealed  and  re-enacted  as  777. 
It  would  seem  therefore  to  be  clear  thot  sec- 
tion 777  as  amended  by  chapter  567  of  Acts 
of  1912  is  now  the  statute  In  force  on  the 
subject,  and.  In  so  far  as  there  is  any  Con- 
flict between  It  and  what  was  called  section 
750  In  above  statute,  section  777  must  pre- 
vail. It  could  not  have  been  Intended  to  have 
two  such  sections  in  the  charter.  We  need 
not  therefore  trouble  ourselves  with  section 
756,  although  there  is  not  in  the  main  much 
difference  between  them  so  far  as  can  apply 
to  this  case  excepting  as  to  the  time  of  serv- 
ice. 

Section  777A  (being  Acts  1906,  c.  456)  in- 
cludes superintendent  of  matrons  and  ma- 
trons of  station  houses  within  the  provisions 
of  section  777,  so  that  they  may  enjoy  the 
same  rights  and  privileges  and  benefits,  sub- 
ject to  the  same  limitations  and  conditions, 
as  those  conferred  for  the  retiring  of  mem- 
bers of  the  police  force,  provided  they  pAy 
to  the  special  fund  110  per  aimum  for  three 
years,  in  addltlcm  to  the  regular  percentage 
required  "under  the  special  pension  act." 
Section  777B  Included  the  secretary  and  as- 
sistant secretary  of  the  board  within  the 
provisions  of  section  777,  provided  the  secre- 
tary paid  1300  and  the  assistant  secretary 
$150  in  three  equal  Installments  to  the  "^te- 
dal  fund."  Section  777Ba  (Acte  1900,  c.  263) 
directed  the  mayor,  etc.,  of  Baltimore,  upon 
the  request  of  the  board,  to  appropriate  an- 
nually a  sum  of  money  foe  the  relief  of  dls- 


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abled  and  superannuated  members  of  the 
police  force,  and  for  the  relief  of  widows 
and  children  of  policemen  killed  in  the  dls- 
diarge  of  duty,  when  the  special  fund  was  not 
sufficient  for  the  payments  authorized  by  the 
act  of  the  General  Assembly  heretofore  pass- 
ed. Provisions  under  the  subtitle  "Special 
Fund"  are  made  in  sections  776  to  780,  in- 
clusive, but  we  will  not  refer  to  the  others. 
Having  thus  referred  to  what  the  appellant 
calls  general  laws  on  the  subject,  without 
deeming  it  necessary  to  enter  upon  a  discus- 
sion as  to  whether  they  are  general  or  spe- 
cial, and  for  the  purposes  of  these  cases  as- 
suming them  to  be  general,  we  will  now  con- 
sider the  several  statutes  passed  for  the 
benefit  of  the  appellees. 

1.  Mrs.  B.  E.  McCIenehan. 

[1]  The  first  case  In  the  record  Is  that  of 
Mrs.  MoCleneban.  She  was  appointed  ma- 
tron on  January  28,  1900,  and  continued  in 
that  capacity  until  the  9th  day  of  July, 
1912,  when  she  was  dismissed  by  the  board, 
after  an  examination  of  physicians,  who 
said  she  had  Brlght's  disease  and  rheuma- 
tism, without  any  provision  for  future  pay. 
She  paid  $30,  being  for  the  three  years  as 
required  by  section  777A,  and  the  2  per 
cent  of  her  salary  from  the  year  1906  .(when 
matrons  were  included)  until  she  was  dis- 
missed. C!hapter  600  of  Acts  of  1914,  after 
stating  in  the  preamble  that  she  had  con- 
tributed to  the  pension  fund  and  was  ob- 
liged to  retire  on  account  of  serious  illness, 
whereby  she  had  been  incapacitated  from 
work  and  from  earning  a  livelihood,  direct- 
ed the  board  to  pay  her  $7.50  a  week  dur- 
ing her  life  out  of  the  special  fund.  She 
liad  not  been  in  service  for  16  years,  as  re- 
quired by  section  777.  It  Is  contended  by 
the  appellant  that  section  7(>6A  governs  her 
case,  and  leaves  it  discretionary  with  the 
board,  but  it  would  seem  clear  that  that 
section  does  not  apply.  That  was  passed  in 
1912,  six  years  after  matrons  were  given 
the  privileges  of  section  777,  but  expressly 
limits  the  relief  to  "any  officer  of  poUce, 
policeman,  detective,  clerk  or  turnkey,"  and 
does  not  include  matrons.  There  was  then 
no  general  law  in  existence  when  the  act 
of  1914  was  passed  which  included  Mrs.  Mc- 
CIenehan. 

The  question  then  is  whether  such  an 
act  was  In  conflict  with  artide  3,  {  33,  of 
the  CJonstltution.    It  provides  that: 

"The  General  Assembljr  shall  pass  no  ^tecial 
law  for  any  case  for  which  provision  has  been 
made  by  an  existing  general  law." 

It  seems  to  us  clear  that  the  board  bad 
no  power  under  the  "general  laws"  in  the 
diarter  to  pension  Mrs.  McCIenehan.  As 
then  they  were  not  authorized  to  allow  her 
a  pension  under  those  laws,  It  cannot  be 
said  that  the  constitutional  provision  above 
quoted  prohibits  the  passage  of  such  a  stat- 
ute as  the  one  passed  for  her  benefit.    It 


may  be  that  the  LegLslature  was  not  willing 
to  pass  a  general  law  allowing  the  board 
to  pension  matrons  who  left  the  service  by 
reason  of  ill  health,  but  were  not  permanent- 
ly disabled  in  the  discharge  of  their  duty, 
and  had  not  served  the  time  required  by 
section  777 — ^16  years.  Indeed,  section  756A 
Indicates  that  it  deemed  it  proper  to  permit 
the  board  to  retire  an  "officer  of  police,  po- 
liceman, detective^  clerk  or  turnkey"  ap- 
pointed by  them  who  was  ineligible  in  the 
way  of  length  of  service  to  retirement  on 
pay  for  life  under  the  requirements  of  sec- 
tion 756,  and  had  served  faithfully  and  had 
become  permanently  incapacitated  from  ac- 
tive duty,  but  It  was  not  willing  to  include 
matrons,  and  hence  did  not  provide  for 
their  retirement  by  reason  of  sickness.  It 
did  not  give  them  the  benefit  of  the  special 
fund  at  aU  until  1906. 

^Riere  are  many  decisions  of  this  court 
which  indicate  that  such  a  special  provi- 
sion for  a  particular  person  named  as  is 
made  by  this  act  does  not  come  within  the 
prohibition.  If  there  had  been  no  such 
statute  as  section  766  or  777,  we  can  see 
no  reason  why  this  act  could  not  have  been 
passed,  and  if  we  are  correct  in  the  conclu- 
sion that  neither  of  those  statutes  embrac- 
ed her  case,  is  it  not  just  as  if  there  was  no 
such  statute?  In  Pumphrey  y.  Baltimore, 
'  47  Md.  145,  28  Am.  Rep.  446,  Acts  1876,  a 
220,  required  the  mayor  and  city  council  of 
Baltimore  to  take  charge  of  and  maintain  as 
a  public  highway  a  bridge  known  as  "Bar- 
man's Bridge."  On  their  refusal  to  do  so 
Pumphrey  filed  a  petition  for  a  mandamus 
to  compel  them  to  do  so.  Amongst  other  de- 
fenses this  provision  of  the  Constitution 
was  relied  on.  This  court  said,  through 
Chief  Judge  Bartol: 

"In  the  public  local  laws  relating  to  Balti- 
more city  no  provision  is  made  for  the  acquisi- 
tion of  the  bridge  in  question,  and  the  ascer- 
tainment of  the  amount  to  be  paid  to  the  own- 
ers in  the  manner  contemplated  and  directed 
by"  former  acts  referred  to. 

It  was  held  that  the  act  was  constitu- 
tional and  valid.  In  O'Brian  &  Co.  t.  Coun- 
ty Com'rs  of  Baltimore  County,  61  Md.  15, 
the  Legislature  passed  a  special  act  in  ref- 
erence to  the  opettiag  of  Wilkens  avenue. 
The  defense  was  taken  that  the  General 
tiaws  provided  a  mode  for  the  opening  of 
any  new  road,  or  the  widening,  straighten- 
ing, altering,  or  closing  up  an  old  road.  The 
court  said: 

"As  recited  in  the  preamble,  there  were  spe- 
cial circumstances  in  the  case  of  Wilkens  ave- 
nue requiring  special  legislation  in  regard  there- 
to;' and  as  the  purposes  of  the  act  could  not 
be  accomplished  under  any  existing  general  law, 
its  enactment  was,  of  course,  not  within  the 
prohibition  contained  in  the  Constitution  (arti- 
cle 8.  S  S3)." 

In  Hodges  v.  Bait  Pa^sa.  By.  Co.,  68  Md. 
603,  It  was  held  that  as  there  was  no  gen- 
eral law  conferring  the  rights  and  prescrib- 
ing the  terms  and  oondltious  on  which  Uw 


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BOARD  OF  POIilCE  COM'RS  y.  McOLElTEHAN 


789 


defendant  was  to  OHistract  and  operate  Its 
railway  on  certain  streets  In  the  city  of 
Baltimore,  the  act  then  In  question  was  not 
In  conflict  with  this  section  of  the  Constitn- 
tlon.  In  Gans  v.  Carter,  77  Md.  1,  25  AtL 
663,  it  was  contended  that  the  powers  giv- 
en to  the  Fidelity  &  Deposit  Company  to  be- 
come sole  snrety  in  all  xases  where  two  or 
more  sureties  were  required,  eta,  was  a 
special  law,  within  the  meaning  of  this 
section,  but  this  court  held  that,  as  there 
was  no  general  law  providing  for  corporate 
security  in  such  cases,  the  act  was  valid. 
See,  also,  Revell  v.  Annapolis,  81  Md.  1,  31 
AU.  695,  Baltimore  v.  United  Ry.  &  E.  Co., 
126  Md.  39,  94  Atl.  378,  and  other  cases 
where  this  provision  of  the  Constitution  has 
been  passed  on.  The  cases  relied  on  by  the 
appellant  are  clearly  distinguishable  from 
this.  la  Prince  George's  County  v,  B.  &  O. 
R.  R.  Co.,  113  Md.  179,  77  Atl.  433,  there 
was  a  general  law  clearly  covering  the  cross- 
ings involved.  So  in  the  case  of  Baltimore 
V.  Starr  Church,  106  Md.  281,  67  AtL  261, 
the  exemption  was  Invalid  because  the  stat- 
ute was  within  this  provision  of  the  Con- 
stitution, and  for  other  reasons. 

It  Is  true  that  there  are  a  number  of  sec- 
tions in  the  charter  which  relate  to  pen- 
sions for  policemen  and  others,  but  they  are 
only  allowed  on  certain  conditions.  If  a 
worthy  person  does  not  come  within  those 
provisions,  it  cannot  be  properly  said  that 
an  act  cannot  be  passed  to  provide  for  his 
or  her  case,  any  more  than  it  can  be  suc- 
cessfully contended  that  the  great  amount 
of  legislation  which  has  been  passed  con- 
ferring special  powers  on  corporations  which 
are  not  granted  by  the  general  laws  are 
invalid.  That  has  been  done  over  and  over 
again,  without  a  suggestion  that  they  were 
not  valid.  The  General  Corporation  Laws  of 
3.868  provided  that: 

"Xo  corporation  shall  possess  or  exercise  any 
corporate  powers,  except  such  as  are  conferred 
by  law,  and  snch  as  saall  be  necessary  to  the 
exercise  of  the  powers  so  acquired."  Article  23, 
S  66,  ef  Code  of  1888;  article  23,  f  64,  ot  Code 
of  1904., 

And  it  was  oftentimes  exceedingly  doubt- 
ful whether  a  corporation  had  under  the 
general  laws  some  special  power  it  desired 
to  exercise,  and  hence  numerous  acts  were 
passed  to  confer  such  powers.  Sections  756 
and  777  empower,  but  do  not  require,  the 
board  to  retire  those  provided  for  in  them. 
It  would  be  carrying  the  meaning  of  sec- 
tion 33  of  article  8  of  the  Constitution  very 
far  to  say  that  by  reason  of  such  sections 
the  Legislature  could  not  pass  an  act  re- 
quiring the  board  to  retire  on  pay  a  certain 
person  or  persons  which  the  Legislature 
thought  should  be  retired.  The  Legislature 
never  intended  to  abandon  all  control  over 
the  board  in  snch  matters,  as  Is  shown  by 
the  many  statutes  on  the  subject.  Of  course, 
when  there  Is  a  general  statute  covering  the 
particular  case^  another  question  may  arise, 


but  we  are  satisfied  that  there  is  no  dlffioil- 
ty  in  this  case. 

2.  William  r.  Oerwlg. 
The  next  case  la  that  of  WlUiam  F.  Ger- 
wig.  Ho  was  appointed  on  the  police  force 
October  21,  1899,  and  appointed  a  regular 
patrolman  December  7,  1900.  In  January, 
1904,  whilst  in  the  discharge  of  his  duty,  he 
sustained  a  fall,  striking  his  spine  on  bis 
revolver  In  his  hip  pocket  On  September 
6,  1904,  he  was  dropped  from  the  police 
force  because  of  his  Injury  and  disability. 
It  appeared  to  the  board  then  in  office  that 
the  incapacity  was  produced  by  spinal  trou- 
ble of  long  standing,  and  not  from  an  in- 
Jury  occurring  in  the  performance  of  his 
duty.    By  Acts  1906,  c.  63,  It  was  provided: 

"That  if  the  police  commissioners  of  Balti- 
more city,  after  a  careful  examination,  are  sat- 
isfied it  is  proper,  they  are  hereby  authorized 
and  empowered  to  pay  Mr.  WiUiam  Frederick 
Gerwig,  a  former  policeman  of  the  police  force 
of  Baltimore  city,  out  of  the  funds  in  their  pos- 
session or  subject  to  their  control,  a  weekly 
pension  of  nine  dollars  ($9.00),  payable  on  the 
last  day  of  each  week." 

It  Is  agreed  that  from  and  after  the  pas- 
sage of  that  act  the  board  regularly  and 
continuously  paid  to  him  the  sum  of  |9  a 
week  until  he  received  the  letter  of  the  sec- 
retary of  the  board  dated  September  8,  1916, 
notifying  him  that  the  board  considered  the 
act  unconstitutional,  and  therefore  would 
make  no  further  payments  to  him.  It  is 
clear  that  there  was  no  general  law  which 
covered  his  case. 

[2]  It  is  contended,  however,  that  the  act 
itself  was  not  mandatory,  but  was  in  the 
discretion  of  the  board.  While  that  Is  cor- 
rect, the  board  did  exercise  its  discretion, 
presumably  after  careful  examination  as  the 
act  provides.  There  Is  nothing  In  the  act 
to  indicate  that  the  intention  of  the  Legisla- 
ture was  to  leave  It  to  the  discretion  of 
each  board  from  time  to  time,  but,  having 
been  acted  on  by  the  board  then  in  office, 
It  was  not  longer  in  the  power  of  subse- 
quent boards  to  revoke  it,  merely  as  an  ex- 
ercise of  their  discretion.  If  that  were  so 
In  reference  to  what  we  speak  of  as  the 
"special  acts,"  it  would  likewise  be  so  under 
section  777  and  section  756,  if  that  is  still 
of  any  force.  They  leave  It  to  the  determi- 
nation of  the  board  in  the  first  place,  "when- 
ever, In  their  opinion  the  efficiency  of  the 
service  may  require  It,  to  retire  any  oflicer 
<rf  police,  policeman,"  etc.,  and  they  state 
the  grounds  upon  which  they  may  suspend 
payment  or  dismiss  the  party.  It  seems 
clear  to  us  that  It  was  left  to  the  existing 
board,  and  was  not  intended  to  leave  it  to 
the  discretion  of  each  succeeding  board  as 
to  whether  the  pay  should  be  continued. 
Moreover,  the  action  of  the  bo&rd,  as  shown 
by  the  letter  of  the  secretary,  was  upon 
the  ground  that  the  act  was  unconstitution- 
al, and'  it  was  not  pretended  that  It  waa 


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101  ATIiANTIO  BBPOBTBB 


(Md. 


done  nnder  a  dalm   of  dlscretltMi  In  the 
board. 

3.  Manno  A.  Behrens. 

Behrens  was  appointed  a  patrolman  up- 
on the  police  force  in  1879.  It  is  admitted 
that  he  would  have  testified  "that  upon  the 
21st  day  of  August,  1899,  the  petitioner  was 
virtually  dismissed  for  partisan  political 
reasons  •  •  •  without  any  provision  for 
a  pension  or  any  other  allowance."  By 
chapter  560  of  the  Acts  of  1000  the  board 
was  authorized  and  directed  to  pay  pensions 
to  the  three  persons  named  (including  Behr- 
ens) "who  were  permanently  disabled  in  the 
discharge  of  tbelr  duty  as  such  policemen" 
out  of  the  funds  in  their  hands  known  and 
accounted  for  as  the  "special  fund"  the  sum 
of  $0  during  the  term  of  their  respective 
lives.  Then  by  Acts  1916,  ch.  212,  the  board 
was  directed  to  pay  Behrens  for  the  rest 
of  bis  life  out  of  the  "special  fund"  a  wedc- 
ly  pension  equal  to  one-half  of  the  weekly 
pay  of  a  regular  patrolman.  In  lieu  of  any 
pension  now  being  paid  blm  under  any  law 
theretofore  enacted.  The  board  having  dis- 
missed the  petitioner,  be  was  not  a  member 
of  the  force,  and  hence  the  board  could  not 
place  him  on  the  pension  list.  He  had  serv- 
ed 20  years,  faithfully  as  be  claims,  and 
was  dismissed  for  "partisan  political  rea- 
sons," as  shown  by  the  agreed  statement. 
There  was  no  general  law  In  force  author- 
izing his  reinstatement,  and  the  Acts  of 
1900  and  1916  cannot  tlierefore  be  said  to 
be  contrary  to  article  3,  {  33,  of  the  Constitu- 
tion. 

4.  George  A.  Grimes. 

Grimes  was  a  police  officer  from  April  14, 
1884,  until  November  11,  1906,  when  be  was 
dismissed  for  being  off  his  post  and  in  an 
eating  saloon  for  ten  minutes.  He  had  regu- 
larly paid  the  2  per  cent,  of  the  salary  re- 
ceived by  him.  By  Acts  1908,  ch.  192,  the 
board  was  directed  to  pay  him  a  weekly 
I>ension  of  $9.  That  was  paid  until  Sei>- 
tember,  1916,  when  he  received  the  notice 
from  the  secretary  that  it  would  not  lon- 
ger be  paid.  There  was  no  general  law  cov- 
ering bils  case. 

5.  Edward  F.  Meehan. 

He  was  appointed  a  patrolman  In  1881, 
sergeant  In  1886,  and  in  January,  1896,  a 
round  sergeant  On  July  12,  1897,  he  was 
dismissed  by  the  board  without  any  provi- 
sion for  pension.  It  was  contended  by  him 
that  he  was  innocent  of  the  charges  and  was 
dismissed  for  partisan  political  reasons.  By 
Acts  1908,  <^.  92,  the  board  was  directed 
ta  pay  him  $12  per  week  for  life.  It  paid 
him  regularly  until  September,  1916,  when 
he  was  notified  by  the  secretary  that  it 
would  no  longer  be  paid.  We  are  informed 
Sy  the  appellees'  brief  that  he  has  died  since 
the  decision  below,  ai)d  of  coarse  his  rep- 


resentative will  only  be  entitled  to  the 
amount  due  from  the  time  the  payments 
ceased  until  bis  death.  No  proceedings  were 
taken  to  make  his  personal  representative  a 
party  to  this  case,  but  we  assume  that  will 
not  be  required  by  the  appellant 

6.  Louis  V.   Pair. 

He  went  on  the  police  force  June  1,  1888, 
and  was  employed  as  a  driver  of  a  patnri 
wagon.  In  July,  1890,  he  was  run  over  by 
the  patrol  wag(«  and  Seriously  injured.  He 
suffered,  but  continued  to  work  from  time 
to  time  until  finally  he  became  In  such  con- 
dition that  he  resigned.  The  board  accept- 
ed his  resignation  on  May  10,  1898,  without 
providing  for  any  compensation.  By  Acts 
1902,  ch.  280,  the  board  was  authorised  in 
their  discretion  to  pay  him  $9  per  week,  and 
by  Acta  1914,  ch.  493,  they  were  directed  to 
pay  him  $10  per  week.  It  Is  alleged  that 
the  first  act  was  discretionary.  That  is 
true,  but  the  board  regularly  paid  him,  un- 
til September,  1916,  and  what  we  have  said 
above  is  sufficient  as  to  that  Indeed,  be- 
fore he  applied  for  the  first  act  he  notified 
the  board  of  his  intention  to  do  so,  and  the 
secretary  replied  that  the  board  had  made 
inquiry  as  to  his  injuries  and  believed  his 
was  a  worthy  case  and  would  do  nothing  to 
oppose  legislation  to  put  blm  on  the  retired 
list  with  pay.  Apparently  they  only  wanted 
the  power  which  they  thought  they  did  not 
have. 

7.  Louis  F.  Norrls. 

He  was  appointed  a  patrolman  August  25, 
1875,  and  he  continued  in  service  until  Feb- 
ruary 2,  1887,  when  he  was  dismissed  for 
being  found  asleep  in  a  chair  at  3:10  a.  m. 
In  a  hotel  upon  his  beat  On  January  10. 
18S6,  he  fell  on  the  Ice  while  patroUng  his 
beat  and  dislocated  his  left  arm  at  the  el- 
bow, since  which  time  he  was  crippled.  He 
was  Included  in  chapter  (560  of  the  Act  of 
1900,  referred  to  In  the  case  of  Manno  A. 
Behrens.  After  that  act  be  was  regularly 
paid  $9  a  week  until  September,  1916.  Hav- 
ing been  dismissed,  there  was  no  provlaloa 
in  the  General  Laws  for  reinstating  him,  ao 
as  to  get  the  benefit  of  the  pension,  and  he 
had  not  served  the  regular  time. 

8.  Kate  Spitcnasle. 

She  is  the  widow  of  Charles  Spltznagle, 
who  was  appointed  on  the  police  force  on 
January  1,  1893.  He  died  suddenly  Decem- 
ber 25,  1906,  after  a  long  chase  of  a  viola- 
tor of  the  law,  made  in  the  performance  of 
bis  duties,  either  from  a  strtrice  of  paral- 
ysis or  heart  failure,  as  a  result  of  the 
diase  and  arrest  of  the  party.  The  records 
of  the  police  board  show  that  he  died  of 
paralysis.  The  petitioner  did  not  make  a 
formal  request  for  an  allowance,  but  Acts 
1906,  c.  335,  authorized  the  board,  In  th^r 
discretion,  to  pay  her  $9  per  week  during 


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SUSQUEHANNA  TKANSMISSION  CO.  OP  KARTI/AND  r.  MUBPHT 


791 


ber  life.  That  was  paid  her  regularly  until 
September,  1918.  The  only  general  law 
which  could  be  claimed  to  cover  her  case 
Is  section  776D.  That  gives  the  board  power 
In  its  discretion  to  pay  to  the  widow  of  a 
member  of  the  police  force  who  was  killed 
while  In  the  actual  performance  of  duty,  or 
who  died  in  consequence  of  injuries  rec^v- 
ed  while  in  the  discharge  of  duty,  an  al- 
lowance until  she  remarried.  It  is  not  nec- 
essary to  determine  whether  it  could  be 
said  that  Mr.  Spltznagle's  death  came  with- 
in the  intention  and  meaning  of  either  of 
those  grounds.  It  might  well  be  questioned 
whether  It  did,  but  the  board  paid  the 
amount  named  In  the  act  regularly  from 
the  time  of  its  passage,  and  does  not  ob- 
ject to  the  amount  now,  so  far  as  the  rec- 
ord discloses,  but  relies  on  the  constitution- 
al objection  referred  to  in  the  other  cases. 
Nor  Is  It  necessary  to  consider  whether  the 
fact  that  the  special  act  provides  for  paying 
during  her  life,  and  section  776B  only  until 
she  remarries.  She  is  still  unmarried,  so  far 
as  the  record  shows.  The  board  in  a  worthy 
case  should  not  be  supposed  to  rely  on 
purely  technical  reasons  for  granting  or  re- 
fusing such  allowances.  The  object  of  the 
provision  Is  to  make  the  service  more  effl- 
deut,  and  if  it  be  admitted  that  the  board 
bad  the  discretion  to  allow  a  pension  under 
section  776U,  and  as  the  record  shows  the 
board  did  on  April  23,  l&Od,  grant  her  an 
allowance  of  $9  a  week,  it  may  well  be  said 
that  it  did  80,  acting  within  its  discretion, 
and,  of  course,  if  that  section  does  not  ap- 
ply, there  can  be  no  valid  objection  to  the 
act  of  1906,  from  what  we  have  already 
said. 

9.  Peter  J.  Patterson. 

He  served  from  September  12,  1S96,  to 
the  19th  of  February,  1913,  when  he  was 
dismissed  on  the  charge  of  having  entered 
a  saloon  on  other  titan  police  business,  and 
remaining  there  12  minutes,  and  while  there 
drinking  intoxicating  liquor.  He  denies 
that  be  drank  intoxicating  liquor,  but  he  was 
dismissed  without  an  allowance  or  pension. 
He  paid  thei  2  per  cent,  regularly  whUe  he 
was  in  service.  By  Acts  1914,  di.  48t>,  the 
board  was  directed  to  pay  him  a  weekly 
pension  of  $11  per  week,  which  was  regu- 
larly paid  until  September,  1916.  There  was 
no  general  law  covering  his  case,  and  what 
we  have  said  in  the  other  cases  is  sufficient 
to  indicate  our  views. 

'   10.  Joseph  J,  Gilbert 

He  was  appcrinted  as  a  patrolman  Janu- 
ary 27, 1881,  as  sergeant  August  5, 1884,  round 
.sergeant  April  19,  1894,  lieutenant  Jnnuary 
13,  1896,  and  on  January  14,  1896,  was  ap- 
pointed captain.  He  was  dismissed  as  he 
<;laims.  for  partisan'  political  reasons,  on 
.Tuly   12,    1897,    without '  any    provision    for 


pension.  By  Acts  1904,  c.  632,  the  board 
was  authorized  to  allow  him  a  weekly  pen- 
sion of  $16.  That  was  paid  regularly  until 
September,  1916.  We  And  no  provision  for 
allowing  pensions  when  the  board  dismiss- 
es, and  hence  there  was  no  general  law  ap- 
plicable. 

We  have  thus  gone  at  some  length  into 
these  ten  cases,  and,  as  we  have  above  point- 
ed out,  we  do  not  find  any  "general  law" 
which  can  properly  be  said  to  interfere  with 
the  "special  acts"  referred  to.  We  have 
already  explained  that  we  did  not  deem  it 
necessary  to  discuss  the  point  raised  by  the 
appellees  that  these  acts  codified  in  the 
Local  Code  on  this  subject  are  not  "general 
laws"  within  the  meaning  of  article  S,  !  33, 
because,  if  they  are  admitted  to  be  so,  we 
find  none  of  what  we  have  spoken  of  as 
"special  acts"  coming  within  the  prohibition 
of  that  section  of  the  Constitution. 

We  are  not  called  upon  to  speak  of  the 
wisdom  of  the  I/egislature  in  passing  such 
acts,  although  some  of  them  would  seem  to 
be  peculiarly  meritorious  and  Just  The  par- 
ties had  paid  regularly  Into  the  special  fund, 
which  was  intended. for  pensions  and  some 
other  purposes.  From  the.  view  we  take 
of  the  article  of  the  Constitution  relied  on 
by  the  appellant  it  becomes  unnecessary  to 
discuss  any  of  the  other  questions  raised. 
We  vrtll  affirm  all  of  the  orders  passed,  in 
eluding  the  Meehan  Case,  as  we  have  no 
record  of  his  death  of  which  we  can  take 
notice,  and  we  assume  that  that  will  be  ad- 
Justed  without  making  his  representative 
a  party.  If  necessary,  of  course,  that  can  be 
done. 

Order  affirmed  in  eadt  of  the  ten  cases: 
the  app^ant  to  pay  the  costs.     . 

'  (181  Md.  »40) 

SUSQUEHANNA  TRANSMISSION  CO.  OP 

MARYLAND  v.  MURPHY  et  al. 

(No.  71.) 

(Court  of  Appeals  of  Maryland.    June  28, 1917.) 

1.  Appeal    ktud  Ebbob   #=983&— Review   — 
Limitations. 

The  power  of  this  court  is  limited  to  an  ex- 
amination of  the  record  and  a  decision  upon  the 
question  whether  the  court  committed  any  in- 
jurious error  of  law  in  any  of  the  rulings  to 
which  defendant  reserved  exceptions. 

2.  Neoliobncb      9s>121(5)  —  Oohcubbxnob 
WITH  Injury. 

Where  negligence  is  the  basis  of  the  action, 
it  is  essential  that  plaintiff  show  that  the  neg- 
ligence alleged  and  the  Injuries  suffered  concor- 
i«d. 

3.  Tbial  4s»134— Questions  fob  Jubt. 

It  is  the  exclusive  province  of  the  jury  to 
decide  questions  of  fact 

4.  Blectbicity  ^=9l9(6)— Dahaob  tbou  Fikb 
—  PBOxntATB  Cause  —  Eviobrck  —  Sum- 

CIENCY. 

In  an  action  against  defendant  electric  pow- 
er corporation  for  damages,  held.  Under  evidence, 
that  questions  of  its  negligence  in  burning  on 
right  of  way  and  whether  fire  was  the  proximate 
cause  of  the  burning  of  plaintiff's  timber  and 
fencing  were  for  jury. 


■II — ■"'"'•  otber  cases  am  same  topic  and  KEY-NUMBS<ft  in  all  Key-Number«d  Digests  and  Indezjb 

Digitized  by  VjOOQ IC 


792 


101  ATLAMTIO  BEPORTBB 


(Hd. 


6.  Apfeai.  AifD  Ebbob  ^=9971^— Evidekob 
«=>546— Qualification'   of    Expebts— Rb- 

VIBW. 

The  amount  of  luiowIeciRe  a  witneaa  must 
possess  before  he  can  be  allowed  to  testify  as 
an  expert  is  largely  for  the  trial  court,  ana  its 
rulings  will  not  be  disturbed  unless  clearly  er- 
roneous. 

6.  E>TIDENCB  ^=3643(3)— BXPERTfr-QlTAUnOA' 
TIONS. 

Parties  who  had  been  engaged  in  the  timber 
business  for  about  three  years  and  were  fa- 
miliar with  the  prices  of  timber  were  competent 
to  testify  to  the  value  of  the  timber  before  and 
after  the  fire. 

7.  Appeai.  and   Bbbob  «s>1026  —  Habmlebs 
Ebrob. 

Errors  which  are  without  injury  will  not 
justify  a  reversal  on  appeaL 

Appeal  from  (Xrcult  Court,  Baltimore  Coun- 
ty;  Hon.  Frank  I.  Duncan,  Judge. 

"To  be  officially  r^wrted." 

Action  by  ThomaB  F.  Murphy  and  another 
against  the  Susquehanna  Transmission  Com- 
pany of  Maryland.  Judgment  for  plaintiffs, 
and  defendant  appeals.    Affirmed,  with  costs. 

Argued  toefore  BOYD,  C.  J.,  and  BUBICE, 
THOMAS,  PATTISON,  DRNEE,  and  STOCK- 
BBIDGE,  JJ. 

T.  Scott  Otfutt,  of  Towson,  for  appellant. 
Elmer  J.  Cook,  of  Towson,  and  Thomas  H. 
Robinson,  of  Bel  Air,  for  appellees. 

BUBKB,  J.  This  is  an  appeal  by  the  de- 
fendant below  from  a  Judgment  of  |500  en- 
tered against  It  In  the  circuit  court  for  Balti- 
more county.  The  defendant  is  a  corpora- 
tion, and  owns  a  right  of  way  about  100  feet 
wide  through  Harford  and  Baltimore  coun- 
ties to  the  city  of  Baltimore.  Upon  this  right 
of  way  are  erected  towers  to  which  wires 
and  other  mechanical  devices  are  attached, 
and  used,  f<»^  the  tranamlaslon  of  electric 
power  generated  by  a  power  plant  located  at 
McCall's  Ferry  in  the  state  of  Pennsylvania. 
The  plaintiffs  are  the  owners  of  land  sitaated 
In  Harford  county  at  a  distance  of  about 
2,000  feet  from  the  defendant's  right  of  way. 
Upon  this  land  was  a  tract  of  timber  In- 
closed by  a  fence.  Between  their  property 
and  the  defendant's  right  of  way,  at  the 
location  spokrai  of  in  the  testimony,  there 
is  located  the  land  of  Mrs.  Streett  and  Albert 
Berry,  which  land  adjoins  the  plaintiffs' 
property.  Then  Intervenes  some  land,  which 
at  the  time  of  the  Injury  complained  of  was 
occupied  by  a  man  named  Ayres.  A  part  of 
this  land,  adjoining  that  of  Streett  and  Ber- 
ry, was  planted  in  corn,  and  the  balance,  cov- 
ered with  grass  and  weeds,  was  contiguous 
to  what  Is  spoken  of  by  the  witnesses  as 
Campbell's  and  Slade's  woods.  These  woods 
lay  along  and  near  the  defendant's  right  of 
way.  In  Slade's  woods  there  was  a  pile  of 
rails  between  300  and  400  In  number  and 
some  posts  which  belonged  to  a  man  uamed 
Harmon.  The  evidence  shows  that  Slade's 
woods  was  very  much  elevated  above  the 
plaintiffs'  land. 


The  declaration  alleged: 

"That  on  or  obout  the  2d  day  of  May,  in  the 
year  1914  the  servants,  acents,  and  employes 
of  the  defendant  neKligently  set  fire  to  dried 
grass  and  weeds  and  bushes  that  were  negli- 
gently suffered  by  the  defendant- to  be  and  re- 
main on  its  said  right  of  way,  for  the  purpose 
of  burning  the  same,  at  a  time  when  a  nigh 
wind  was  blowing,  and  that  the  fire  so  negli- 
gently started  on  said  right  of  way  was  thence 
communicated  to  the  plaintiffs'  timber  and  fenc- 
ing, whereby  and  in  consequence  thereof  a  large 
part  of  said  timber  was  burnt  and  injured." 

The  defendant  pleaded  the  general  iasae 
pleas,  and  the  case  was  tried  before  the 
court  and  a  Jury  upon  the  issues  Joined  apon 
these  pleas. 

[1]  During  the  progress  of  the  trial  the 
defendant  reserved  23  exceptions.  Nineteen 
of  these  were  taken  to  the  rulings  of  the 
court  upon  questions  of  evidence,  one  to  the 
rulings  on  the  prayers,  and  three  to  certain 
statements  made  by  the  counsel  for  the  plain- 
tiffs in  their  arguments  before  the  Jury.  A 
motion  for  a  new  trial  was  made  by  the  de- 
fendant, which  the  court  denied,  and  whilst 
the  counsel  for  the  defendant  complains  that 
the  verdict  was  grossly  excessive,  he  concedes 
that  this  court  has  no  power  to  grant  him 
relief  on  that  ground.  Our  power  la  limited 
to  an  examination  of  the  record  and  a  de- 
dsioa  upon  the  question  as  to  whether  the 
court  below  committed  any  Injarlous  error 
of  law  In  any  of  Its  rulings.  Before  consid- 
ering the  exceptions,  it  may  be  well  to  state 
some  matters  about  whldi  there  does  not  ai>- 
pear  to  be  any  dispute.  It  Is  shown  that  the 
plaintiffs  were  the  owners  of  the  property 
mentioned  in  the  declaration,  and  that  on  May 
2,  1914,  a  fire  broke  out  in  the  plaintiffs' 
woods,  burned  ovw  about  6  acres  of  their 
land.  Injured  the  timber  thereon,  and  de- 
stroyed a  large  portion  of  the  fencing  which 
inclosed  the  tract  It  is  also  shown  that 
about  noon  on  that  day  James  G.  Parker,  the 
line  superintendent  of  the  defendant,  directed 
Caesar  Hawkins  and  Walter  Winder,  two 
men  in  the  employ  of  the  defendant  and 
over  whom  Parker  had  authority,  to  gather 
Into  piles  and  bum  certain  debris  which  was 
laying  upon  the  right  of  way  of  the  defend- 
ant and  near  to  Campbell's  and  Slade's 
woods.  These  m«i  gathered  np  the  d£bris 
into  piles,  about  3  feet  high  and  6  feet  wide 
and  about  5  feet  apart,  along -the  right  of 
way  and  set  them  on  fire.  The  fire  from 
these  burning  piles  was  communicated  first 
to  Campb^'s  and  then  to  Slade's  woods,  and 
it  destroyed  the  rails  of  Harmon,  to  whlcb 
we  have  referred,  and  for  which  loss  the  de- 
fendant compensated  him. 

The  dismited  qaeetlona  of  fkict  were: 
First,  as  to  the  character  of  the  timber  on 
the  plaintiffs'  land,  the  extent  of  the  lojnry 
to  the  timber,  and  Its  value  before  and  after 
the  fire ;  and,  secondly,  the  extent  of  the  Ore 
in  Slade's  woods,  the  direction  and  velocity 
of  the  wind  at  the  time  of  the  fire;  and, 
thirdly,  a  question  of  law,  raised  by  the  de- 


4(S3For  other  cuw  ■••  ume  tootc  and  KEY-NUMBER  in  »Xl  Ke7-Numbv«d  I>lge«U  and  ladexet 


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Md.) 


SUSQUBHANKA  TRANSMISSION  OO.  OF  MARTLAND  y.  MURPHT 


793 


fendant's  first,  second,  and  third  prayers, 
wblcb  songht  to  wltbdratr  the  case  from  the 
Jury,  as  to  whether  there  was  any  testimony 
offered  legally  sufficient  to  show  any  negli- 
gence on  the  part  of  the  defendant,  or  any 
legal  connection  between  the  fire  started  on 
the  defendant's  right  of  way  and  the  injury 
suflTered  by  the  plaintiffs. 

[2]  As  negligence  Is  the  basis  of  the  action, 
it  was  essential  for  the  plaintiffs  to  offer  ev- 
idence legally  sufficient  to  show  the  negli- 
gence alleged,  and  that  the  injuries  sued  for 
bore  the  relation  of  cause  and  effect.  The 
concurrence  of  both  and  the  nexus  between 
them  must  be  shown  to  exist  to  constitute 
a  right  to  recover.  Benedict  v.  Potts,  88  Md. 
65,  40  AU.  1067,  41  L.  R.  A.  47a 

[S]  It  is  not  the  province  of  this  cdtirt  to 
decide  any  question  of  fact  That  was  the 
exclusive  province  of  the  Jury.  Eight  wit- 
nesses were  called  on  behalf  of  the  plain- 
tiffs, viz.:  W.  Elijah  SomervlUe,  a  surveyor, 
Thomas  F.  Murphy,  James  G.  Parker,  Cor- 
nelius F.  Murphy,  Albert  Berry,  Albert  Ber- 
ry, Jr.,  Edward  I*  Oldfleld,  and  Benjamin 
Garber. 

A  brief  synopsis  of  the  material  portions 
of  the  evidence  of  these  witnesses  bearing  up- 
on the  questions  presented  by  this  appeal  is 
here  given: 

Mr.  SomervlUe- made  a  plat  of  the  location 
of  the  transmission  line  with  reference  to  the 
property  of  the  plaintiffs,  and  made  measure- 
ments of  the  distance  from  the  transmission 
line  to  the  Murphy  property  and  of  the  tract 
burned.  He  said  the  fire  extended  over  a 
little  more  than  6%  acres  of  the  timber  land, 
and  that  the  distance  from  Slade's  woods  to 
the  Berry  and  Streett  land,  which  as  we 
have  said,  adjoined  the  Murphy  land,  was 
1,968  feet,  and  that  the  distance  from  the 
Slade  land  where  this  line  of  1,968  feet  was 
measured  to  the  defendant's  right  of  way 
was  probably  about  12S  feet  He  testified 
that  the  land  slopes  towards  the  Streett 
property,  and  that  at  about  the  center  of  the 
Slade  land  the  elevation  is  from  60  to  75 
feet  above  the  Streett  tract 

Thomas  F.  Murphy  testified:  That  lie 
first  noticed  the  fire  about  2  o'clock  p.  m. 
That  It  was  "a  terrible  windy  day." 
"The  wind  sounded  like  a  train  of  cars.  It 
was  blowing  from  the  west"  That  the  fire 
burned  more  than  6  acres  of  his  woodland. 
That  he  saw  the  smoke  coming  from  the 
Slade  woods — coming  from  the  west,  direct 
to  Ids  property.  That  the  fence  on  the  Berry 
and  Streett  lines  was;  entirely  destroyed. 
That  the  timber  on  Ids  tract  was  principally 
oak,  white  oak,  and  the  very  best  of  chest- 
nut ;  thickly  wooded,  a  splendid  piece  of  tim- 
ber. That  the  fire  continued  in  his  woods 
until  6  o'clock,  and  killed  the  timber  and  the 
young  growth.  That  the  timber  was  large 
and  marketable.    He  testified: 

That  he  owned  about  400  acres  of  land  in  that 
neighborhood,  and  had  been  engaged  in  fanning 
for  a  nnmber  of  years,  and  that  he  had  had  ex- 
perience in  buying  and  selling  timber  and  timb^ 


land  for  over  two  years.  "In  Harford  connty 
we  bought  200  acres  in  the  northern  part  of  the 
county  near  what  is  known  as  Carea,  and  we 
bought  S5  acres  near  the  Rocks  recently,  and 
we  have  been  buying  telegraph  poles  in  all  the 
northern  part  of  the  country.  He  had  been  in 
the  timber  business  a  little  over  three  years. 
Prior  to  that  he  had  bought  several  pieces  of 
land  for  himself  with  timber  on  it  That  he 
made  his  own  estimate  of  the  lumber  on  a  tract 
They  bought  the  timber  for  marketing  it,  cut- 
ting it  into  different  things,  railroad  cross-ties, 
crossing  planks,  telegraph  poles,  bridge  timber, 
wagon  wood,  whatever  we  can  market  it  in  best 
They  furnish  the  county  with  considerable  bridge 
timber.  In  making  the  purchases  of  timber  they 
bought  just  the  timber;  the  wood  leave  we  call 
it    He  inspected  it  lielore  he  bought  it" 

He  further  said  he  knew  of  sales  of  wood- 
land in  that  vicinity.  That  be  knew  of  sales 
there.  That  he  had  bought  the  timber  on  the 
Wright  property,  which  was  about  8  mUes 
from  his  own.  That  he  was  familiar  with 
the  prices  'of  timber,  and  that  he  had  been 
engaged  in  the  timber  business  for  the  last 
two  or  three  years.  That  the  day  of  the  fire 
was  a  windy  day  and  very  dry,  and  had  been 
dry  for  several  days. 

James  G.  Parker,  the  line  superintendent 
was  called  by  the  plaintiffs,  and  testified 
that  he  ordered  the  men,  Hawkins  and  Wind- 
er, to  burn  the  d6tois,  but  was  not  present 
when  the  fire  started  in  the  Campbell  and 
Slade  woods;  that  he  gave  the  order  about 
11  or  11:30  a.  m.,  and  that  at  that  time  he 
said  the  wind  was  blowing  from  the  north- 
east. 

Cornelius  F.  Murphy  testified  that  he  re- 
called the  fire  which  occurred  on  May  2, 
1914.  He  first  noticed  it  about  1:30  or  2 
o'clock;  that  it  was  a  clear  day,  but  very 
windy.  The  wind  was  blowing  at  a  high 
gale.  It  was  blowing  a  gale  from  Slade's 
woods  to  the  plaintiffs'  woods.  He  could  see 
the  smoke.  The  Slade  land  was  higher  than 
his  own.  His  evidence  as  to  the  kind  and 
character,  quantity,  and  marketability  of  the 
timber  on  the  tract  burned  was  corroborative 
of  Thomas  F.  Muiphy.  He  said  be  had  been 
engaged  in  the  timber  business;  that  he 
bought  tracts,  cut  off  the  timber,  operated  a 
sawmill,  and  sold  the  lumber;  that  he  had 
bought  timber  rights  in  the  upper  section  of 
Harford  county,  and  that  the  effect  of  the 
fire  on  the  timber  in  question  was  to  destioy 
it ;  that  it  killed  the  treea 

Albert  Berry  said  he  was  at  his  home 
when  he  first  saw  the  fire  between  1  and 
2  o'clock;  that  it  was  a  very  windy  day; 
that  he  saw  an  "awful  smoke"  in  the  comer 
of  the  Slade  prc^orty;  that  the  wind  was 
blowing  directly  from  Slade's  woods,  and 
that  there  was  a  fire  in  that  woods ;  that  the 
fire  was  burning  on  the  street  property, 
which  was  much  lower  than  the  Slade  woods, 
and  spread  to  the  Murphy  tract;  that  it 
burned  fencing  on  his  and  the  Murphy  tract, 
and  spread  Into  the  Murphy  land. 

Albert  Berry,  Jr.,  said  he  saw  the  fire  lu 
Slade's  woods  between  12:30  and  1  o^clock. 
and  testified  that: 


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101  ATIxAJITIC  BBPORl'KR 


(Md. 


"That  is  tlie  woods  np  by  the  Susquehanna 
Transmission  line.  He  saw  the  fire  burning 
there;  saw  the  blaze.  He'  supposed  he  was 
about  a  couple  of  hundred  feet  from  his  father's 
house.  There  was  then  a  very  high  gale  of 
northwestern  wind  blowing.  It  was  a  clear  day. 
The  wind  was  blowing  from  the  west.  He  saw 
a  fire  when  it  went  in  Mr.  Streett's  woods.  He 
did  not  suppose  it  was  any  more  than  a  half 
hour  after  he  saw  the  fire  in  Slade's  woods 
that  he  saw  fire  in  Streett's  woods.  He  was 
eating  his  dinner.  When  b«  saw  it  in  Mr. 
Slade's  woods  he  went  in  to  eat  his  dinner. 
When  he  saw  it  in  Mr.  Streett's  woods  bis  father 
called  his  attention,  and  he  went  to  help  put 
it  out  When  he  got  down  there  the  fire  was 
burning  in  Mrs.  Streett's  woods.  He  stayed 
there  until  it  was  completed  about  6  o'clock. 
The  fire  got  over  to  his  father's  land  sometime 
later  after  they  tried  to  pot  it  out  in  Mr.  Mur- 

ghy's  tract.  When  he  went  down  on  Mr. 
treett's  property  the  wind  was  blowing  again 
westward.  The  Streett  property  and  his  prop- 
erty and  the  Murphy  property  is  considerable 
sight  lower  than  Slade's." 

Mr.  Oldfleld  saw  the  timber  bef6re  and  In 
February  after  the  fire.  The  general  effect 
of  Ms  evidence  was  that  before  the  Are  it 
was  a  fine  piece  of  timber,  and  that  It  had 
been  seriously  Injured  by  the  fire. 

Benjamin  Oarber  testified:  That  he  saw 
the  fire  between  1  and  2  o'clock.  That  there 
was  a  "terrible  smoke"  coming  down  the  hol- 
low, and  that  he  went  over  to  Murphy's  and 
found  the  whole  woods  on  flre.  That  the 
smoke  was  coming  down  over  Slade's  woods 
towards  Murphy's  woods.  It  was  a  dry  day 
and  the  wind  was  blowing  very  bard,  and  he 
never  saw  it  blow  much  harder  than  It  did 
that  day.  That  It  was  blowing  direct  from 
the  west,  and  It  was  blowing  smoke  over  Mr. 
Ayres'  field  down  over  the  Murphy  woods. 

Testimony  on  the  part  of  the  defendant 
was  offered  tending  to  show  that  the  plain- 
tiffs' Injury  was  much  less  than  they  testi- 
fied to;  that  they  had  misstated  the  charac- 
ter and  value  of  the  timber;  that  the  fire 
could  not  have  been  caused  by  any  act  of  the 
defendant  becaufie  the  wind  was  moderate 
and  was  not  blowing  In  the  direction  of  the 
Murphy  tract ;  and  because  there  was  no  evi- 
dence of  fire  or  burning  of  the  dried  grass  or 
weeds  In  that  part  of  the  Intervening  field, 
above  mentioned,  which  was  In  the  posses- 
sion of  Ayres,  who,  however,  when  called  as 
a  witness  for  the  defendant,  testified  that  the 
flre  had  burned  the  fencing  between  him  and 
Albert  Berry.  Berry's  land  was  located  be- 
yond this  Intervening  field  and  adjoined  the 
land  of  Murphy. 

We  now  pass  to  the  consideration  of  the 
legal  questions  presented  by  the  rulings  on 
prayers.  The  only  error  which  it  Is  claim- 
ed the  court  made  In  this  respect  was  In  re- 
jecting the  defendant's  first,  second,  and 
third  prayers,  which  asserted  that  there  was 
no  legally  sufficient  evidence  offered  to  enti- 
tle the  plaintiffs  to  recover,  and  In  overrul- 
ing the  special  excepticm  filed  to  the  plain- 
tiffs' first  prayer,  which  declared  that  there 
was  no  legally  sufficient  evidence  In  the  case 
to  support  the  following  hypothesis  of  the 
prayer,  to  wit: 


"That  the  fire  started  bcf  th«  defendant  on  its 
right  of  way  was  communicated  from  the  wood- 
land of  one  Slade,  referred  to  in  said  prayer,  to 
the  woodland  of  one  Streett,  referred  to  in  said 
prayer." 

[4]  By  these  prayers  and  under  the  special 
exception  the  court  was  asked  to  declare,  as 
a  matter  of  law,  first,  that  the  defendant 
was  not  guilty  of  negligence  in  starting  the 
fires  on  Its  right  of  way  under  the  circum- 
stances stated  In  the  evidence ;  and,  second- 
ly, that  said  fires  were  not  the  proximate 
cause  of  the  Injury  sued  for.  Both  of  these 
questions  are  ordinarily  questions  to  be  pass- 
ed on  by  the  jury  under  the  facts  and  circum- 
stances of  the  particular  case,  and  assuming, 
as  we  must,  the  plaintiffs'  evidence  a^  to  the 
weather  conditions  and  especially  as  to  tbe 
velocity  of  the  wind  to  be  true,  there  can  be 
no  doubt  of  the  defendant's  negligence.  Du- 
ties and  responsibilities  arise  out  of  existing 
facts  and  conditions,  and  no  reasonably  pru- 
dent and  cautious  man  would  bave  Bred  the 
piles  of  debris  under  tbe  conditions  described 
by  the  evidence  offered  on  behalf  of  the 
plaintiffs.  The  true  rule  of  liabiUty  is  stated 
in  Miller  v.  Neale,  137  Wis.  426,  119  N.  W. 
W,  129  Am.  St  Bjep.  1077,  as  follows: 

"A  man  mav  lawfully  bum  rubbish  or  bmdi 
upon  his  own  land,  if  he  exercises  that  prudenc« 
in  tbe  starting  of  the  fire  and  the  management 
of  it  after  it  is  started  which  the  rules  of  ordi- 
nary care  demand.  He  is  using  a  dangerous 
agent,  and  when  there  is  much  inflammable  ma- 
terial on  the  ground,  and  the  wind  is  strong  in 
tbe  direction  of  his  neighbor's  lands,  he  may 
well  be  charged  with  negligence  if  be  sets  a 
fire,  or  if,  having  set  it,  he  does  not  exerdaa 
that  care  to  keep  it  under  ctmtrol  which  <vdi- 
nary  prudence  dictates." 

This  rale  la  In  accord  with  practically  the 
unanimous  decisions  upon  the  subject,  among 
which  are  Black  v.  Christ  Church  Finance 
Co.,  App.  Cas.  [1894]  48;  McVay  v.  Central 
California  Invest  Co.,  6  Cal.  App.  184,  91 
Pac.  745;  Richard  ▼.  Schleusener,  41  Minn. 
49,  42  N.  W.  689. 

The  question  whether  the  injury  suffered 
by  tbe  plaintiffs  was  the  natural  and  prox- 
imate cause  of  the  fires  set  by  the  defend- 
ant was  properly  submitted  to  Uie  jury.  The 
general  principles  upon  this  subject  were 
stated  In  State,  use  of  Scott  v.  W.  B.  &  A. 
Electric  R.  R.  Co.,  101  Atl.  546,  and  need  not 
be  here  restated.  In  the  recent  case  of  tbe 
Western  Md.  R.  R.  Co.  v.  Jacqnes,  129  Md. 
400,  99  Aa  549,  we  said: 

"The  rule  long  in  force  is  that  where  fire  has 
not  been  directly  communicated  to  the  plaintiff's 
property  by  sparks,  or  other  burning  matter 
from  the  engine,  but  baa  been  communicated 
across  other  property,  the  questioa  to  be  sab- 
mitted  to  the  jury,  to  determine  from  all  the 
facts,  is  whether  the  injury  complained  of  is  the 
natural  consequence  of  the  defendant's  negli- 
gence, or  whether  it  has  been  caused  by  some 
intervening  cause.  The  record  shows  that  thia 
question  was  properly  submitted.  A.  &  E.  It. 
R.  Co.  V.  Gantt,  39  Md.  115;  P.  W.  *  B.  B.  Bt, 
V.  Constable,  39  Md.  149;  Qreen  Ridge  R  K. 
V.  Brinkman,  64  Md.  52  [20  Atl.  1024,  64  Anx. 
Rep.  755];  Carter  v.  Md.  &  Pa.  R.  R.,  112 
Mi  689  177  Atl.  301]." 


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795 


Ab  to  tbe  twentr-flrst,  twenty-second,  and 
twenty-third  bills  of  exceptions,  which  were 
taken  to  the  statements  made  by  the  connsel 
In  argument,  we  find  nothing  sufficient  to 
cause  a  reversal  after  a  careful  examination 
■of  the  record,  and  of  the  principles  by  which 
tbe  courts  are  guided  in  passing  upon  sudi 
-objections.  We  said  In  Esterllne  ▼.  State, 
106  Md.  629,  60  Aa  26»: 

"It  is  the  duty  of  counsel  to  confine  himself 
in  argament  to  the  facts  in  evidence,  and  he 
should  not  be  permitted  by  the  court,  over  prop- 
er objection,  to  state  and  conuueiit  upon  facts 
not  in  evidence,  or  to  state  what  be  could  have 
proven.  Persistence  in  this  course  of  conduct 
may  furnish  good  grounds  for  a  new  trial.  The 
conduct  of  the  trial  must  of  necessity  rest  large- 
ly in  the  control  and  discretion  of  the  presiding 
judge,  and  the  appellate  court  should  in  no  case 
interfere  with  the  judgment,  unless  there  be  an 
abuse  of  discretion  by  the  trial  judge  of  a  char- 
acter likely  to  have  injured  ue  complaining 
party.  •  *  •  The  observations  of  Mr.  Jus- 
tice Brown  npon  this  subject  in  Dunlop  v.  Unit- 
ed States,  165  U.  S.  488  [17  Sup.  Ct.  875, 
41  Xj.  Ed.  799]  may  well  be  applied  to  tbe  facte 
embraced  in  this  exception:  'There  is  no  doubt 
that  in  the  heat  of  argument,  counsel  do  occa- 
sionally make  remarks  that  are  not  justified  by 
the  testimony  and  which  are  or  may  be  prejudi- 
cial to  the  accused.  In  such  cases,  however,  if 
the  court  interfere,  and  counsel  promptly  with- 
draw the  remark,  the  error  will  generally  be 
deemed  to  be  cured.  If  every  remark  made  by 
counsel  outside  of  the  testimony  were  ground  for 
a  reversal,  comparatively  few  verdicts  would 
stand,  since  in  the  ardor  of  advocacy,  and  in  the 
excitement  of  trial,  even  the  most  experienced 
counsel  are  occasionaUy  carried  away  by  this 
temptation.' " 

[S,6]  There  remains  for  consideration  the 
10  bills  of  exceptions  taken  to  mlings  on  evi- 
dence. Tbe  only  really  Important  ones  are 
tbe  second,  third,  eighth,  ninth,  and  tenth, 
which  relate  to  tbe  qoallflcations  of  Thomas 
F.  Mnrphy  and  Cornelius  F.  Murphy,  to 
speak  as  to  the  value  of  the  timber  before 
and  after  the  fire  with  a  view  of  establishing 
the  damages.  Belt  K.  R.  Co.  T.  Sattler,  100 
Md.  33.3,  59  Atl.  C54 ;  Western  Md.  R.  R.  Co. 
T.  Jacques,  supra.  In  Chateaugay  Ore  4 
Iron  Co.  V.  Blake,  1«  U.  S.  476,  12  Sup.  Ct 
731,  36  L.  Kd.  510.  the  court  said  that  how 
much  knowledge  a  witness  must  possess  be- 
fore he  can  be  allowed  to  give  his  opinion  as 
an  expert  must  In  tbe  nature  of  things  be 
left  largely'  to  the  trial  court,  and  Its  rulings 
will  not  be  disturbed  unless  clearly  erro- 
neous. We  think  these  witnesses  were  qual- 
ified to  speak  upon  the  subject  of  value. 

[71  There  was  technical  error  In  some  of 
the  rulings  embraced  In  some  of  tbe  other 
exceptions,  but  some  of  the  evidence  admitted 
was  of  no  Imxmrtance,  and  as  to  the  other 
rulings  the  record  shows  that  substantially 
the  same  evidence  was  admitted  without  ob- 
jection eUhet  before  or  after  the  rulings. 
There  must  be  a  concurrence  of  error  and 
Injury,  and  after  a  careful  examination  of 
tbe  whole  record  we  find  no  error  which 
would  Justify  us  in  reversing  the  Judgment. 

Judgment  afiirmed,  with  costa 


(78  N.  B.  428) 

CLARK  y.  BOSTFON  &  M.  R.  B. 

(Supreme  Court  of  New  Hampshire.    Merri- 
mack.    June  5, 1917.) 

1.  Railroads  €=>470  —  Liabiutt  fob  Inju- 
BiEs  Caused  by  Fibe— Statute. 

Pub.  St.  1901,  c.  159,  §  29,  making  a  rail- 
road liable  for  damages  to  person  or  property 
from  fires  set  by  its  locomotives,  has  no  applica- 
tion _  to  the  case  of  a  fireman,  employed  by  a 
municipality  to  extinguish  fires,  and  injured  in 
attempting  to  extinguish  a  fire  set  by  a  railroad's 
locomotive;  the  act  applying  only  to  those  so 
situated  that  as  to  them  the  operati<»  of  the 
road  constitutes  an  extra  fire  hazard. 

2.  Railboads  ®=3470— Settino  Fibb— Liabu,- 
ITT  to  Fibeuan. 

A  railroad,  apart  from  the  contract  of  em- 
ployment of  a  municipality's  fireman,  stood  in 
no  legal  relations,  however  remote,  to  such  fire- 
man, and  owed  no  duty  toward  him  to  refrain 
from  setting  a  fire. 

3.  Action  «=>4— Intbinoeiobnt  or  Codk  or 

MOBALS. 

Courts  cannot  give  relief  in  damages  for  a 
mere  infraction  of  a  code  of  morals. 

4.  Railboadb  ®==470— Settino  Fibb— Liabii,- 
rrr  fob  Injubies  to  Fibeman. 

A  railroad  was  not  liable  for  injuries  to  i 
fireman  employed  by  a  municipality  because  ol 
bis  public  employment  while  endeavoring  to  ex- 
tinguish a  fire  set  by  its  locomotive;  there  be 
ing  no  breach  of  any  duty  owed  the  fireman  b) 
the  road. 

Transferred  from  Superior  Court,  Merri- 
mack County;    Sawyer,  Judge. 

Action  by  Clarence  h.  Clark  against  th* 
Boston  &  Maine  Railroad.  On  transfer  from 
the  superior  court  on  defendant's  demurrer. 
Demurrer  sustained. 

Case  for  injuries  alleged  to  have  been 
caused  to  the  plalntift  by  a  fire  set  by  ttus 
defendant's  locomotive.  There  Is  a  general 
count  for  negligence  and  one  setting  out  that 
the  plalntift  was  a  member  of  the  Concord 
fire  department  and  received  his  Injuries 
while  acting  In  that  capacity  attempting  to 
extinguish  the  fire.  A  specification  filed  later 
shows  that  the  first  count  Is  for  the  same  al- 
leged wrong.  There  Is  also  a  count  alleging 
a  right  of  recovery  under  the  statute  Impos- 
ing liability  upon  railroads  for  damages  caus- 
ed by  fires  set  by  locomotives. 

Robert  W.  Upton,  of  Concord,  for  plaintiff. 
Streeter,  Demond,  Woodworth  &  Sulloway, 
and  Jonathan  Piper,  all  of  Concord,  for  de- 
fendant 

PEASIiEG,  J.  The  declaration,  and  the 
specification  of  facts  applicable  to  tbe  first 
count,  show  that  the  plaintlfTs  claim  rests 
upon  the  theory  that  a  fireman  employed,  by 
a  municipality  to  extinguish  fires  may  recov- 
er from  the  party  whose  act  caused  the  fire. 
It  is  not  necessary  to  consider  whether  a  re- 
covery might  be  had  if  the  fire  had  been  de- 
signedly set,  with  tbe  Intent  to  Injure  the 
plaintifT,  for  his  claim  is  based  upon  the  statu- 
tory liability  of  railroads,  or  upon  negligence. 

[1]  The  statute  making  a  railroad  liable 


^tBtPot  other  cases  M«  «am«  topic  and  KBT-KUUBBR  la  all  Key-Nnmbtrid  Digests  and  ladszai 


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101  ATLANTIC  REPOBTEiB 


(N.H. 


tor  damage  to  person  or  property  from  Area 
set  by  Its  locomotives  (P.  S.  c.  159,  !  29)  bas 
no  application  to  the  present  case.  That  act 
applies  only  to  those  so  situated  that  as  to 
them  the  operation  of  the  railroad  constitutes 
an  extra  fire  hazard.  If  the  act  is  broad 
enough  in  its  terms  so  that  it  oould  have 
heea  construed  to  include  all  damage  that 
oould  In  any  sense  be  deemed  to  be  "caused" 
by  the  defendant  It  is  settled  that  such  was 
not  the  legislative  intent  Welch  v.  Railroad, 
68  N.  H.  206,  44  Atl.  304,  is  conclusive  on 
this  Issue.  If  the  statute  covered  the  present 
case  the  plaintiff  in  that  case  would  have  re- 
covered. The  loss  there  was  caused  by  a  fire 
set  by  the  defendant;  but  because  the  plain- 
tUTs  pri(H>erty  was  in  the  costody  of  the  de- 
fendant as  a  bailee,  it  was  held  not  to  be 
within  the  class  contemplated  by  the  Legis- 
lature. While  this  conclusion  rests  in  part 
ui>on  the  language  of  the  act  giving  the  rail- 
road "an  Insurable  interest  In  aU  property 
situate  on  the  line  of  such  road,  expossed  to 
such  damage"  (O.  L.  c  162,  {  9 ;  P.  S.  c.  159, 
I  30),  the  reasoning  is  not  inappUcaUe  In 
determining  the  meaning  of  the  related  pro- 
vision as  to  "damages  to  any  person."  The 
declaration  of  liability  is  in  no  way  differen- 
tiated. There  was  occasion  to  express  the 
understood  limitation  as  to  one  class,  and  it 
Is  not  to  be  presumed  that  the  unexpressed 
Intent  was  different  as  to  the  other  class. 
The  statute  applies  to  persona  and  property 
exposed  to  damage  along  the  line  of  the  road. 
It  doea  not  apply  to  firemen  or  fire  engines 
whose  exposure  results  from  an  attempt  to 
extinguish  the  fire.  As  the  statute  has  no  ap- 
plication, the  rights  of  the  partite  are  deter- 
mined by  the  common-law  rules  governing 
actions  to  recover  for  negligence. 

Authorities  holding  that  a  volunteer  res- 
cuer of  persons  or  property  may  recover 
from  a  third  person  whose  negligence  caused 
the  situation  inducing  the  volunteer  to  act  are 
relied  upon  by  the  plaintiff.  It  is  also  con- 
tended that  his  contract  of  employment  as  a 
city  fireman  gives  him  a  standing  more  favor- 
able to  him  than  that  of  the  volunteer. 

[2]  l%e  case  has  been  largely  argued  upon 
the  issue  of  proximate  cause,  in  furtherance 
of  the  first  of  these  claims.  Bat  that  question 
docs  not  arise  unless  tbo  defendant's  act  bore 
some  legal  relation  to  ouch  a  volunteer.  The 
question  here  Is  not  one  of  proximate  or  re- 
mote cause,  but  whether  the  defendant  owed 
any  duty  at  all  to  the  plaintiff — ^whether, 
apart  from  his  contract  of  employment  it 
stood  in  any  legal  relationship  to  him,  how- 
ever r«note.  It  seems  to  us  that  it  did  not 
Neither  the  plaintiff  nor  bis  property  was  In 
a  position  to  be  injured  by  a  fire  set  by  the 
defendant  His  connection  with  the  fire  arose 
solely  from  his  own  act  in  coming  Into  con- 
tact with  It  after  it  was  set 

It  is  the  law  of  this  state  that  as  to  such, 
interveners  the  defendant  who  created  the 
situation  owed  no  anticipatory  duty.    McGiU 


T.  Granite  Co.,  70  N.  H.  126,  46  Afl.  684,  85 
Am.  St.  Rep.  618.  The  situatioa  is  much  like 
that  of  the  land  owner  and  a  licensee.  So 
long  as  no  intentional  injury  is  done,  and  no 
negligent  act  after  the  licensee  is  present 
there  Is  no  liability.  Hobbs  v.  Company,  75 
N.  H.  73,  70  Aa  1082,  18  L.  R.  A.  (N.  S.)  039. 
The  cases  from  other  Jurisdictions  holdincr 
that  there  is  a  legal  liability  in  such  a  case 
rest  upon  the  ground  that  the  intervene 
bad  a  moral  right  if  not  a  moral  duty,  to 
malce  the  attempt  to  save  life  or  property; 
and  because  it  may  be  assumed  that  meo 
win  do  their  moral  duty,  It  is  argued  tliat  the 
defendant  is  boiond  to  consider  the  probabili- 
ties as  to  their  subsequent  and  morally  in- 
duced conduct.  The  defect  in  tUs  reasoning 
is  that  it  substitutes  moral  rights  and  duties 
for  those  recogniised  and  regulated  by  law. 

As  to  the  intervener  the  defendant's  prevl- 
oofl  conduct  is  wrong  only  In  the  sense  that 
it  is  a  wrong  to  society  at  large.  It  may 
be  a  moral  wrong  and  may  be  punishable 
on  behalf  of  the  public;  but  It  is  not  a  pri- 
vate legal  wrong  to  individual  members  of 
the  public,  who  of  their  own  motion  undw- 
take  to  lessen  the  evil  effects  of  the  defend- 
ant's dereliction  from  duty.  The  Good 
Samaritan  could  not  recover  from  the  thieves 
the  value  of  the  oil  and  wine  which  he 
poured  into  the  wounds  of  the  man  at  Jer- 
icho. His  recompense  is  the  same  to-day 
that  It  always  has  been. 

[3]  Unless  It  be  true  that  courts  can  give 
relief  In  damages  for  a  mere  infraction  of  a 
code  of  morals,  the  plaintiff's  argument  fias 
no  weight  That  courts  are  not  empowered 
tQ  so  act  In  this  Jurisdiction  is  too  well 
settled  to  require  discussion.  Frost  v.  Rall- 
rond,  64  N.  H.  220,  9  Atl.  790,  10  Ant  St 
Rep.  .306 ;  Buch  v.  Amory  Co.,  69  N.  H.  257, 
44  AU.  809,  76  Am.  St.  Rep.  163.  If  legal 
liability  is  to  be  extended  so  as  to  cover  this 
new  field,  the  change  must  be  made  by  the 
Legislature. 

The  plaintiff's  argument  that  the  test  laid 
down  in  Garland  v.  Railroad,  76  N.  11.  556. 
86  Atl.  141,  46  L.  B.  A.  (N.  S.)  338,  Ann.  CaS. 
1Q13B,  924,  is  applicable  in  his  favor  fails 
in  an  essential  element  It  Is  not  true  that, 
apart  from  his  contract  with  the  city,  the 
defendant  ought  to  have  known  that  th«» 
plaintiff  would  be  In  a  position  to  be  injured 
iby  what  it  did.  He  was  not  In  such  position. 
He  does  not  so  state  In  his  declaration. 
What  he  did  was  to  put  himself  in  such  posi- 
tion after  the  defendant  ceased  to  be  an 
actor,  and  because  a  fire  was  in  progress. 
He  did  not  oome  upon  the  fire  accidentally, 
or  in  the  course  of  Independent  and  lawfnl 
conduct  nor  did  the  fire  come  upon  htm 
while  he  was  so  circumstanced.  Buch  rlgtat 
as  he  had  to  be  an  actor  in  this  matter  grew 
out  of  the  fact  that  there  was  a  fire.  It  was 
not  a  right  whose  exercise  the  fire  Interfered 
with. 

While  in  a  certain  sense  the  fire  may  be 
said  to  be  a  cause  of  the  plaintiff's  injary , 


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OKISBLER  ▼.  READING  TRUST  CO. 


797 


It  does  not  follow  that  therefore  the  defend- 
ant's negligence  was  a  breach  of  any  doty 
the  defendant  owed  to  him.  "The  tortious 
natuVe  of  the  defendant's  conduct  and  the 
causative  effect  of  that  conduct  are  entirely 
distinct  matters;  and  what  la  a  requisite 
element  as  to  the  first  subject  Is  not  neces- 
sarily so  as  to  the  second."  Jeremiah  Smith 
In  25  Harr.  Law  Rev.  245.  In  Garland  t. 
Railroad,  supra,  the  defendant's  act  un- 
doubtedly caused  the  Injury,  yet  it  was 
no  breach  of  a  duty  owed  to  the  party  who 
was  injured. 

The  discussion  in  Kambonr  v.  R.-jllroad,  77 
N.  H.  33,  86  AtL  624,  45  Ll  R.  A.  (N.  S.)  1188, 
touching  the  rights  of  certain  classes  of 
people  who  encounter  known  danger,  Is  not 
germane  to  the  present  case.  That  discus- 
sion relates  to  the  acts  of  a  plalntUT  to 
whom  a  duty  is  owed,  who  Icnows  the  duty 
has  been  violated  by  the  defendant.  It  is 
not  authority  for  the  proposition  that  fault 
as  to  one  party  constitutes  a  wrong  to  a  third 
person  who  knows  of  the  wrong  and  volun- 
tarily seeks  to  remedy  It  The  citation  there 
of  cases  permitting  volunteer  rescuers  to  re- 
cover was  only  for  the  purpose  of  stiowing 
that  the  maxim,  "Volenti  non  fit  injuria" 
was  not  generally  considered  to  be  a  rule  of 
universal  application  In  the  law  of  negli- 
gence. The  question  whether  these  cases 
were  good  law  was  not  involved,  and  there 
was  no  attempt  to  pass  upon  it.  Nor  is  it 
necessary  to  now  consider  this  aspect  of 
them.  It  is  enough  for  the  present  case  to 
say  that  even  If  the  voluntary  character 
of  the  act  does  not  amount  to  an  assent  to 
the  result,  such  act  is  not  of  a  character 
to  raise  an  anticipatory  duty  on  the  part  of 
those  not  otherwise  related  to  the  actor  to 
take  care  to  avoid  fumisbing  him  an  oppor- 
tunity to  act. 

[4]  The  other  claim  suggested  is  that  be- 
cause the  plaintiff  was  employed  to  extin- 
guish fires  he  stands  differently  from  a  vol- 
unteer and  may  recover  when  a  volunteer 
could  not.  But  if  it  be  assumed  that  his 
contract  of  employment  brought  him  into  a 
legal  relation  to  the  defendant  and  to  its 
conduct  in  setting  the  fire,  be  is  no  l>etter 
off.  If  Ills  contract  with  the  public  created 
a  relation  to  the  individual  member  thereof, 
the  relation  created  is  such  as  the  parties 
contemplated.  It  appeared  to  the  puUic  de- 
sirable to  reduce  the  fire  losses  of  Its  mem- 
bers by  providing  for  the  extinguishment  of 
fires.  The  contract  with  the  fireman  is  for 
the  benefit  of  those  who  would  be  damaged 
by  the  fire.  The  agreement  so  made  differs 
In  no  respect  essential  to  this  case  from  the 
ordinary  contract  of  insurance.  That  is, 
the  plaintiff  has  agreed  to  tmdertake  to  less- 
en the  fire  damage  which  would  otherwise 
fall  upon  the  defendant  It  Is  argued  that 
this  relation  exists  only  as  between  the  fire- 
man and  the  party  whose  property  is  in 


danger  of  being  consumed  by  the  fire.  But 
this  is  much  too  narrow  a  view.  If  a  rela- 
tion arises  at  all,  it  is  one  to  all  members 
of  the  public  whose  interests  or  liability 
are  involved  by  the  fire.  This  is  the  com- 
mon-sense view  of  the  situation.  The  plain- 
tiff, knowing  that  fires  will  occur  from  vari- 
ous causes,  some  culpable  and  some  not,  un- 
dertakes the  work  of  extinguishing  all  fires 
without  reference  to  how  they  were  caused. 
The  chance  of  Injury  in  doing  such  work  is 
necessarily  assumed  by  him.  Tills  assump- 
tion arises  from  the  nature  and  terms  of 
the  contract  he  made.  He  agreed  to  fight 
all  such  fires  as  should  occur.  There  is  in 
his  contract  no  distinction  as  to  how  the 
fires  originated.  If  his  contract  has  any 
bearing  at  all  upon  the  relation  of  the  par- 
ties, it  establishes  an  express  assumption  of 
the  risk  here  Involved,  and  bars  any  recovery 
therefor. 

The  rule  that  one  may  not  contract  against 
the  consequences  of  his  own  future  negligence 
has  no  application.  This  is  merely  an  under- 
taking of  one  not  otherwise  related  to  the 
situation  to  bear  for  the  defendant  the  con- 
sequences of  Its  fault  The  defendant  is 
not  thereby  released  from  any  liability  im- 
posed upon  It  by  law.  The  agreement  is 
like  any  Insurance  contract,  and  its  validity 
is  not  open  to  question. 

Whether,  then,  the  plaintiff  is  treated  as  a 
volunteer  or  as  one  whose  contract  of  em- 
ployment brought  him  into  a  legal  relation 
to  the  defendant,  the  result  Is  the  same.  In 
neither  case  was  there  a  breach  of  any  duty 
owed  to  him  by  the  defendant 

Demurrer  sustained.    AU  concur. 


OBI  Pa.  S2»> 
GEISSLEB  et  aL  v.  READING  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.     March  23, 
1917.) 

1.  PEKPBTUITIKS  €=>1— NATtTBE  OT  RUTB. 

"Perpetuities"  are  grants  of  property  where- 
in the  Testing  of  an  estate  or  interest  is  anlaw- 
fully  postponed. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Perpe- 
tuity,] 

2.  Wnxs  «ss>630(2)  —  Vsstbd  ob  CJontinoent 
Ebtats — Legacies. 

The  rule  is  that,  where  a  legacy  is  given  to 
a  person  to  be  paid  at  a  future  time,  it  vests  im- 
mediately, but  that,  when  not  given  until  a  cer- 
tain future  time,  it  does  not  vest  until  that  time. 
8.  Wnxs  <S=»634(14)— CoNSTBUCTiON— VasTsn 

OB  CONTINOBNT  REUAINDES. 

A  devise  of  property  in  trust,  limiting  the  in- 
come to  the  testator's  children  by  name  for  life 
and  after  their  death  to  their  children  as  a  class, 
and  after  the  death  of  the  sarviving  grandchild 
the  corpus  to  vest  in  testator's  great-grandchil- 
dren per  capita,  created  a  contingent  remain- 
der, to  vest  in  the  great-grandchildren  as  a 
class  after  the  death  of  the  testator's  last 
grandchild. 

4.  PEBPETtrrnEs    «=»4(9)    —   Testaioentabt 
Tbtjst. 

Such  devise  offended  the  rule  against  perpe- 
tuities, and  was  void,  and  the  testator's  heira 


ttsoVoT  othar  cases  see  (am*  toplo  and  KBT-NUMBER  In  all  Key-Numbered  Digests  and  Indezu 


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798 


101  ATIiANTIO  REPORTBE 


(Pa, 


mi^ht  compel  the  tmrtee  to  convey  the  property 
to  tbem  absolutely. 

Appeal  from  Court  of  ComnMm  Pleas, 
Berks  County. 

BUI  by  Henry  0.  Gelssler  and  others,  heirs, 
to  annul  a  testamentary  trust  and  for  recon- 
veyance, against  the  Reading  Trust  Com- 
pany, trustee  under  the  will  of  Henry  C. 
Gelssler,  deceased,  and  others.  From  a  de- 
cree for  plaintiffs,  defendants  appeal.  Af- 
firmed. 

Testator's  will  provided  in  part  as  follows: 

(7)  "Item — I  give,  devise  and  bequeath  to  my 
three  sons,  Henry  0.  Gpissler.  Jr.,  Samuel  IC. 
Geissler  and  Robert  Franklin  Gcissler,  the 
above-mentioned  properties  contained  in  pur- 
parts numbered  1  and  2,  to  wit:  727,  729  and 
731  Penn  street  and  all  buildings  appertaining 
thereto  and  726  and  728  Court  street  and  720 
Court  street,  marble  works  and  stable,  all  in 
the  said  city  of  Reading,  said  county  and  state, 
same  to  be  held  by  them  in  common,  to  use,  oc- 
cupy and  enjoy  the  rents,  issues  and  profits 
thereof,  as  long  as  they  shall  live.  The  same 
shall  not  be  sold  so  long  as  any  one  of  the  said 
sons  shall  live.  Should  the  said  sons  agree  to 
dissolve  partnership  now  existing  between  them, 
all  to  disrnntinue  tbe  business  now  engaged  in, 
to  wit:  The  tin  and  stove  trade  and  tile  and 
mantle  works — and  all  engage  in  some  other  line 
of  trade,  tbe  said  premises  to  be  used  by  all — 
or,  should  they  engage  in  different  enterprises, 
the  said  premises  not  used  by  any,  then,  the 
same  shall  be  rented,  and  proceeds,  after  taxes, 
water  rents  and  necessary  repairs  shall  be  paid, 
to  be  divided  among  the  three  sons,  their  heirs, 
share  and  share  alike.  After  all  the  said  three 
sons  shall  have  died,  then  the  said  premises 
may  be  sold,  if  deemed  advisable  by  my  herein- 
after named  executor,  a  good  and  sufficient  price 
secured  therefor,  the  proceeds  therefrom  to  be 
invested  and  the  income  thereof  to  be  distribut- 
ed to  the  children  of  my  deceased  sons,  share 
and  share  alike,  if  of  age  and  properly  behaved 
and  conducting  themselves  well,  if  not — then 
the  same  to  be  expended  in  their  keep  and  main- 
tenance— and.  after  all  such  grandchildren  shall 
have  died,  then  the  principal  sums  so  created 
shall  be  divided  among  all  the  children  of  my 
grandchildren,  share  and  share  alike,  'per  capi- 
ta' and  not  'per  stirpes' — the  mortgage,  now  a 
lien  upon  said  premises,  to  be  paid  and  lien  dis- 
charged, if  not  already  so  discharged  at  my 
death,  as  soon  after  my  death  as  can  be  done, 
provision  to  be  so  made  by  sale  of  such  securi- 
ties as  may  be  necessary,  good  and  fair  price 
being  received  for  same." 

(8)  "Item — I  give,  devise  and  bequeath  unto 
my  daughter,  Kosa  M.  Berg,  widow  of  the  Inte 
Edward  C.  Berg,  deceased,  the  two  dwelling 
houses  and  lots  or  pieces  of  ground  upon  which 
the  same  are  erected,  situate  on  North  Fifth 
street,  beyond  Buttonwood  street.  Number  408 
and  410  North  Fifth  street,  in  said  city  of 
Reading,  county  and  state  aforesaid,  which  I 
have  appraised  at  the  sum  of  five  thousand  ($5,- 
000)  dollars  per  dwelling,  aggregating  ten  thou- 
sand ($10,00(^  dollars,  for  and  during  the  term 
of  her  natural  life,  she  to  enjoy  the  rents,  is- 
sues and  profits  of  the  same,  after  all  taxes  and 
necessary  repairs  shall  have  been  made,  as  long 
as  she  shall  live.  And  X  direct  that  additional 
real  estate,  free  from  all  incumbrances,  or  first 
class  mortgagesecurity,  or  securities  be  provid- 
ed for  her,  which,  together  with  the  above  two 
dwellings  valued  at  ten  thousand  ($10,000)  dol- 
lars, as  above  contained,  shall  aggregate  the  sum 
of  nineteen  thousand  three  hundred  and  sixty- 
one  and  ($19,361.08)  <>«/ioo  dollars,  same  being 
an  equivalent  for  what  has  been  given  to  the 
Uiree  sons  as  above  contained  in  purparts  Nos. 
1  and  2,  and  the  material,  wares  and  equipment 


contained  in  the  two  branches  of  business,  to 
wit,  the  tin  and  stove  trade  and  the  tile  and 
mantle  business,  whicji  I  gave  the  said  three 
sons,  when  I  retired  from  business  and  installed 
my  said  sons  into  the  said  branch  of  business, 
August  1,  1908,— same  to  be  invested  and  held 
in  the  name  of  my  estate,  tbe  income  from  the 
dwellings  and  that  from  the  additional  invest- 
ment to  be  paid  to  her.  for  her  sole  and  sepa- 
rate use  as  long  as  she  shall  live,  said  income  to 
be  paid  to  her,  and  to  her  alone,  her  receipt 
alone  to  be  in  payment  of  same,  such  income 
not  to  be  subject  to  any  bills  or  liabilities  which 
may  be  contracted,  nor  be  liable  to  attachment 
nor  in  any  manner,  menace  nor  liable  for  any 
debt  or  loss  sustained  by  said  daughter,  Rosa 
M.  Berg.  After  the  death  of  my  daughter, 
Rosa  M.  Berg,  if  in  the  judgment  of  my  here- 
inafter named  executor,  a  good  and  sufficient 
price  be  secured  for  same,  the  real  estate  so  set 
aside  for  her  as  above  contained,  or,  that  may 
be  bought  for  her  use  and  enjoyment,  may  be 
sold  and  the  proceeds  reinvested  in  other  good 
premises  same  continued  in  my  estate,  or  in 
good  first  mortgage  security  or  securities,  in  my 
estate,  the  income  whereof  shall  be  distributed 
to  my  grandchildren,  children  of  my  said  daugh- 
ter, Kosa  M.  Berg,  share  and  share  alike,  if 
of  age  and  properly  behaved  and  conducting 
themselves  well,  if  not— then  the  same  to  be 
expended  for  such  so  misbehaving  for  their  main- 
tenance and  keep.  This  extra  provision  extend- 
ing to  my  grandchildren  is  made  in  considera- 
tion of  the  fact  that  my  good  deceased  wife  and 
I  have  always  had  the  grandchildren  around 
us,  in  our  home,  and  are  very  warmly  attached 
to  them,  and,  hence  this  provision." 

(9)  "Item — I  direct  that  the  additional  sum 
of  two  thousand  five  hundred  and  fifty-five  and 
**/iao  ($2,555.69)  dollars  be  invested  by  my 
hereinafter  named  executor,  which  sum,  together 
with  tbe  real  estate  hereinbefore  disposed  of, 
and  the  amount  of  stock  as  per  inventory,  giv- 
en to  the  boys,  when  the  two  branches  of  busi- 
ness were  transferred  to  them,  August  1, 1908,  to 
wit,  'eight  thousand  eighty-three  and  *Vi«o 
($8,083.23)  dollars,  with  the  additional  amount 
to  make  the  share  of  Rosa  M.  Berg  equal  to  the 
share  of  one  of  my  sons,  will  make  a  grand  to- 
tal of  eighty  thousand  dollars — the  income  of 
which  said  sum  of  two  thousand  five  hundred 
and  fifty-five  and  *s/ioo  dollars  shall  be  divided 
into  four  equal  shares  and  be  paid  to  the  said 
Henry  C.  Geissler,  Jr.,  Samuel  K,  Geissler,  and 
Robert  Franklin  Geissler  and  Rosa  M.  Berg, 
and  to  their  children,  the  children  Of  any  de- 
ceased child  or  children,  throughout  this  testa- 
ment, to  take  the  share  of  such  deceased  parent, 
share  and  share  alike.' 

(10)  "Item— After  tlie  death  of  all  my  children 
and  their  children  (my  grandchildren),  then  I 
direct  that  the  above-mentioned  investments 
(real  estate  and  securities),  aggregating  tbe  sum 
of  eighty  thousand  ($80,000)  dollars  less  the 
amount  as  contained  in  inventory  of  stock,  to 
wit,  the  sum  of  eight  thousand  eighty-three  and 
"/ino  ($8,083.23)  dollars,  or  the  sum  of  seven- 
ty-two thousand  four  hundred  ^teen  and 
'•/loo  (972,41(X77)  dollars,  together  with  what- 
ever increase  of  principal,  by  reason  of  higher 
values  received  for  real  estate  sold,  as  herein- 
before set  aside  to  the  uses  of  the  sons  and 
daughter,  and  whatever  other  increase  of  real 
estate  and  securities,  together  with  interest 
which  shall  have  accrued,  shall  be  divided  among 
all  my  great-grandchildren,  grandchildren  of  my 
sons,  Henry  C.  Geissler,  Jr.,  Samuel  K.  Geissler, 
Robert  Franklin  Geissler,  and  my  daughter, 
Rosa  M.  Bergf  all  share  and  share  alike,  same 
taking  per  capita  and  not  per  stirpes." 

Other  facts  appear  In  the  opinion  of  Wag- 
ner, J.,  in  the  common  pleas,  sur  defendanf  a 
demurrer  to  plaintiff's  bill: 


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OEIS8L.ER  ▼.  READINa  TBDST  CO. 


799 


The  plaindCFs  have  filed  a  bill  in  equity  where- 
in they  set  forth  certain  proTlsionB  in  the  will 
of  Heiit7  C.  Geissler,  deceased,  and  allege  that 
the  scheme  of  the  trust  attempted  to  be  estab- 
lished b^  these  provisions  is  repugnant  to  the 
rule  against  perpetuities,  and  void  for  remote- 
ness. They  therefore  pray  the  court  to  enter  a 
decree  declaring  said  trust  null  and  void,  and 
directing  the  defendant  to  convey  and  quit- 
claim unto  the  plaintiffs  the  real  and  personal 
proi>erty  comprising  the  said  trust  estate.  To 
this  biU  defendant  demurred. 

Item  7  of  the  will  gives  to  Henry  C.  Geissler, 
Jr.,  Samuel  K.  Geissler,  and  Kobert  Franklin 
Geissler,  727,  729,  and  731  Penn  street,  TC6,  728, 
and  720  Court  street,  to  be  held  by  them  in  com- 
mon to  use  and  enjoy  the  rents,  etc,  as  long  as 
they  live,  same  not  to  be  sold  as  long  as  any 
one  of  the  sons  shall  live.  It  furtlier  -directs 
that,  after  the  three  sons  shall  have  died,  then 
the  premises  may  be  sold  by  his  executor,  if 
deemed  advisable,  the  proceeds  therefrom  to  be 
invested  and  the  income  thereof  to  be  distribut- 
ed to  the  children  of  his  deceased  sons,  share  and 
share  alike,  if  of  age  and  properly  behaved  and 
conducting  themselves  well,  and,  after  all  such 
grandchildren  shall  have  died,  then  the  princi- 
pal snm  so  created  shall  l>e  divided  among  all 
the  children  of  his  grandchildren,  share  and 
share  alilce,  ;>er  capita  and  not  per  stirpes. 

Section  8  gives  to  Hosa  M.  Berg,  his  daughter 
and  only  other  child,  408  and  410  North  Fifth 
street,  as  long  as  she  lives,  and  directs  that  ad- 
ditional real  estate  free  from  all  incumbrances 
be  provided  for  her,  so  that  the  aggregate  value 
shall  amount  to  $19,361.08;  the  income  from 
the  dwdlinga  and  additional  investment  to  bo 
paid  to  her  as  long  as  she  shall  live.  After 
her  death  the  real  estate  may  be  sold  by  the 
executor,  and  tho  i^roceeds  invested  in  any  other 
good  premises  or  in  first  mortgage  security  or 
securities,  tho  income  to  he  distributed  to  his 
grandchildren,  the  children  of  his  daughter,  Hosa 
M.  Berg,  share  and  share  alike. 

Item  10  provides  that,  after  the  death  of  all 
bis  children  and  their  children  (his  grandchil- 
dren), then  the  above  trust  estate  (real  estate 
and  securities),  aggregating  the  sum  of  $72,416.- 
77,  together  with  increase  of  principal,  sliall  be 
divided  among  all  his  great-grandchildren,  grand- 
children of  his  sons,  Henry  C.  Geissler,  Jr., 
Samuel  K.  Geissler,  Robert  Franklin  Geissler, 
and  his  daughter,  Rosa  M.  Berg,  all  share  and 
share  alike:  same  taking  per  capita,  and  not 
per  stirpes. 

[I.  2]  Perpetuities,  as  stated  in  City  of  Phila- 
delphia V.  Girard's  Heirs,  45  Pa.  9,  26,  S4  Am. 
Dec.  470,  are  "grants  of  property,  wherein  the 
vesting  of  an  estate  or  interest  is  unlawfully 
postponed."  When,  then,  does  the  estate  in  or 
interest  to  the  principal  of  this  contemplated 
trust  fund  vest?  That  is,  do  his  great  grand- 
children take  a  vested  or  a  contingent  interest? 
In  Sternbcrgh's  EsUte,  250  Pa.  167,  171,  95  AtL 
404,  406,  we  have:  "In  Smith's  Estate,  226  Pa. 
304,  307,  306  [76  Atl.  425,  426],  this  court  said: 
'Aa  Chief  Justice  Tilghman  said  in  l'atterM>n 
V.  Hawthorn,  12  Serg.  &  R.  112:  "The  rule  is 
that,  where  a  legacy  is  given  to  a  person  to  be 
paid  at  a  future  time,  it  vests  immediately. 
But  when  it  is  not  given  until  a  certain  future 
time,  it  does  not  ve.st  until  that  time;  and  if 
the  legatee  dies  before,  it  is  lost."  '  •  •  • 
The  statement  of  the  rule  by  Chief  Justice  (iib- 
son,  in  Moore  T.  Smith,  9  Watts,  403.  4(^  has 
always  been  accepted;  it  is  that:  'The  legacy 
shall  be  deemed  vested  or  contingent  just  as 
the  time  shall  appear  to  have  been  annexed  to 
the  gift  or  the  payment  of  it.'  "  In  the  case  at 
bar  the  time  is  manifestly  annexed  to  the  gift, 
not  merely  to  its  payment.  If  any  of  the  mem- 
bers of  the  class  die  t>efore  the  time  fixed  for 
di8tribu^>on  they  get  nothing. 

[3]  '.t  will  be  noticed  that  in  this  will  a  life 
efftate  is  first  given  to  his  children,  mentioning 
tbem  by  name.   After  their  death  we  again  have 


a  life  estate  to  their  children  (grandchildren  of 
testator)  as  a  class,  the  names  of  no  particular 
individuals  being  designated.  These  are  to  take 
per  capita.  It  is  clear  that  the  quantum  of  this 
life  estate  is  measured  by  the  number  of  grand- 
children living  at  the  time  of  death  of  the  last 
of  testator's  children.  Then  only  after  the 
last  of  these,  the  grandchildren,  shall  have  died 
shall  the  tmst  estate  then  vest  in  the  great- 
grandchildren of  the  testator,  per  capita.  Here 
again  the  quantum  of  the  principal  of  the  trust 
estate  to  be  eventually  received  by  each  of  the 
great-grandchildren  is  determined  by  the  number 
of  great-grandchildren  in  bein*;  at  tho  time  of 
the  death  of  the  last  grandchild.  That  is,  the 
estate  vests,  not  presently  in  designated  per- 
sons, but  only  after  the  death  of  tho  last  grand- 
child of  the  testator,  in  his  then  great-grandcbil' 
dren  as  a  class  per  capita.  We  have  here  clear- 
ly a  contingent  and  not  a  vested  interest. 

[4]  Is,  then,  this  vesting  unlawfully  post- 
poned? "The  law  allows  the  vesting  of  an  es- 
tate or  interest,  or  the  power  of  alienation,  to 
be  postponed  *  •  •  for  the  period  of  lives 
in  being,  and  21  years  and  9  months  thereafter, 
and  all  restraints  upon  the  vesting,  that  may 
suspend  it  beyond  that  period,  are  treated  as 
perpetual  restraints,  and  therefore  as  void, 
and  consequently  the  estates  or  interests  depend- 
ent on  them  are  void."  (Sty  of  Philadelphia  v. 
Girard's  Heirs,  45  Pa.  26,  supra.  By  the  terms 
of  the  vrill  the  principal  will  not  vest  in  the 
great-grandchildren  until  after  the  death  of  all 
the  grandchildren,  whether  now  bom  or  to.  be 
hereafter  bom;  that  is,  in  the  natural  course  of 
events,  for  a  period  of  from  50  to  80  or  more 
years  after  the  period  of  lives  in  being.  This 
period  is  too  remote,  and  offends  the  rule  of  per- 
petuities. The  antecedent  estate  thus  falls,  and 
the  heirs  at  law  of  this  testator  are  entitled  to 
immediate  possession.  Johnston's  Estate,  185 
Pa.  179,  3D  Aa.  879,  64  Am.  St.  Kep.  6:il; 
Gerber's  Estate,  196  Pa.  366,  46  Atl.  497; 
Kountz's  Estate  (No.  1),  213  Pa.  390,  62  Atl. 
1103,  3  L.  R.  A.  (N.  S.)  639,  5  Ann.  Cas.  427; 
In  re  Kountz's  Trust,  251  Pa.  582,  96  Atl.  1067. 

Findings  of  I>aw. 

1.  The  interest  of  the  great-grandchildren  of 
Henry  C.  Geissler,  the  decedent,  in  the  trust 
estato  of  $72,729.31,  attempted  to  be  created 
by  the  testator,  Henry  C.  Geissler,  in  his  will, 
is  not  a  vested  interest. 

2.  The  devise  of  the  principal  of  the  property 
contained  in  the  attempted  trust  is  one  wherein 
the  vesting  thereof  is  postponed  for  a  longer 
period  than  the  period  of  lives  in  bein^  and  21 
years  and  9  months  thereafter,  is  void  under 
the  rule  against  perpetuities,  and  the  plaintiffs, 
the  heirs  at  law  of  Henry  C.  Geissler,  deceased, 
are  entitled  to  immediate  possession  of  the  said 
principal. 

3.  The  plaintiffs  are  entiUed  to  a  decree  de- 
claring the  aforesaid  trust,  aggregating  in  value 
the  sum  of  $72,729.31,  null  and  void,  and  that 
the  Reading  Trust  Company,  defendant,  be  di- 
rected to  convey  a  quitclaim  unto  the  plaintiffs, 
Henry  C.  Geissler,  Jr.,  Samuel  K.  (Teissier,  Rob- 
ert Franklin  Geissler,  and  Rosa  M.  Berg,  of 
the  real  estate  and  personal  property  described 
in  the  will  as  comprising  the  said  trust  estate. 

4.  The  costs  of  the  proceeding  shall  be  paid 
by  the  defendant. 

The  court  below  entered  tlie  following  de- 
cree: 

1.  That  tho  demurrer  be  and  is  hereby  over- 
ruled. 

2.  That  the  devise  of  the  beneficial  estate  or 
interests  in  the  six  several  purparts  of  real 
estate  mentioned  and  described  in  the  third 
paragraph  of  ■  the  plaintifTs  bill,  contained  in 
the  seventh  clause  of  the  last  will  of  Henry  C. 
Geissler,  deceased,  the  several  purparts  contain- 
ed in  the  eighth  clause  of  said  will,  and  the  di- 


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rcction  to  proride  additional  real  estate  in  the 
same  clanse,  and  the  bequest  of  $2,655.60  in  the 
ninth  clause  of  said  will,  is  wholly  and  entirely 
void,  and  that  to  the  extent  of  said  beneficial  es- 
tates and  interest!  in  said  purparts  of  real  es- 
tate and  said  sum  of  money  the  said  Henry  O. 
Geisskr  died  intestate. 

3.  That  the  power  of  sale  by  the  said  .will-  of 
the  said  Henry  G.  Geissler  granted  to  the  execu- 
tor relating  to  the  aforesaid  several  purparts  is 
invalid  and  void. 

4.  That  the  said  defendant  do  make,  execub^ 
and  deliver  to  the  plaintiffs,  the  heirs  at  law  of 
the  said  Henry  C.  Geissler,  deceased,  proper 
and  sufficient  deeds,  conveyances,  and  quit- 
claims as  executor  and  trustee,  conveying  and 
quitclaiming  to  the  said  plaintiff  tho  legal  title 
to  the  said  several  purparts  of  real  estate  de- 
scribed and  specified  in  the  third  paragraph  of 
the  plaintiff's  bill. 

Argued  before  BROWN,  a  J.,  and  MES- 
TREZAT,  STEWAKT,  MOSCHZISKEE,  and 
FKAZBR,  JJ. 

Walter  B.  Craig,  of  Reading,  for  appellant 
Jefferson  Snyder  and  H.  Robert  Mays,  both 
of  Reading,  for  appellees. 

PER  CURIAM.  The  decree  In  this  case  Is 
affirmed,  at  the  costs  of  the  appellant,  on  the 
opinion  of  the  learned  court  below,  direetlng 
it  to  be  entered. 


(257  Pa.  341) 
BEYNOLDSVILLE  WATER  CO.  r.  FAB- 

MEHS'  &  MINERS'  TRUST  CO. 

(Supreme  Court  of  Pennsylvania.    March  23, 

1917.) 

COBFOBATIONS     ^=479— BONDS— TbUST     DEED 

— Delivebt  OF  Bonds— LiABUJTT  fob  Neo- 

LIOENCB. 

The  trustee  under  a  mortgage  to  secure  a 
water  company's  bond  issue  providing  that  the 
bonds  be  executed  by  its  president  and  secretary 
and  for  their  delivery  to  the  trustee,  to  be  cer- 
tified and  afterwards  returned  to  the  company's 
treasurer,  which  received  the  treasurer's  receipt 
for  certain  of  the  bonds,  together  with  the  bonds 
from  the  company's  president,  with  directions 
to  send  them  to  a  bank  for  delivery  to  him,  and 
which,  in  reliance  on  euch  receipt,  sent  the 
bonds  to  such  bank,  from  which  the  president 
obtained  and  embezzled  them,  was  not  liable  to 
the  company  for  their  value. 

Appeal  from  Court  of  Common  Pleas,  Jef- 
ferson County. 

Trespass  by  the  Reynoldsvllle  Water  Com- 
pany against  the  SVirmers'  &  Miners'  Trust 
Company  for  alleged  negligent  disposal  of 
bonds.  From  a  judgment  refusing  to  take  off 
a  compulsory  nonsuit,  plaintiff  appeals.  Af- 
firmed. 

From  the  record  It  appeared  that  certain 
mortgage  bonds  of  the  Reynoldsvllle  Water 
Company  were  executed  in  its  behalf  by  A. 
Grant  Rlchwine,  as  president,  and  W.  Dale 
Shaffer,  as  secretary.  The  bonds  provided 
that  after  execution  by  the  president  and 
secretary,  they  should  be  sent  to  the  Farm- 
ers' &  Miners'  Trust  Company,  trustee,  for 
certification  by  it  and  that  they  should  then 
be  delivered  to  the  treasurer  of  the  water 
company.    After  their  execution  by  the  presi- 


dent and  secretary,  Rlchwine  suggested  that 
Shaffer,  as  treasurer,  send  a  receipt  along 
with  the  bonds,  which  were  to  be  fbrthwitb 
certified  and  delivered.  Such  receipt  was 
prepared,  and,  together  with  the  bcmds,  was 
handed  by  Shaffer  to  Rlchwine,  who  sent 
both  receipt  and  bonds  to  the  trust  company, 
with  directions  to  send  the  bonds,  when  certi- 
fied, to  a  certain  bank  for  delivery  by  said 
bank  to  Rlchwine.  The  trust  company,  rely- 
ing up<Mi  the  treasurer's  receipt,  sent  the 
bonds  to  the  bank  as  directed,  and  Rlchwine 
subsequently  procured  same  and  embezzled 
them.  The  lower  court  entered  a  compulsory 
nonsuit,  which  it  subsequently  refused  to 
take  off.    Plaintiff  appealed. 

Argued  before  BROWN,  a  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAIJ^ 
ING,  JJ. 

John  W.  Reed,  of  BrookviUe,  and  H.  H. 
Mercer,  of  Mechanicsburg,  for  appellant 
Cadmus  Z.  Gordon  and  Raymond  B.  Brown, 
both  of  Brookville,  and  Lex  N.  MltcheU,  of 
Punxsutawney,  for  appellee. 

PER  CURIAM.  The  following  Is  the  Ihrst 
condition  of  the  mortgage  under  which  the 
bonds  in  controversy  were  issued: 

"The  bonds  to  be  issued  under  and  secured 
thereby  shall  be  executed  on  behalf  of  the  Rey- 
noldsvllle Water  Company,  by  its  president  and 
secretary,  and  shall  be  delivered  to  the  trustee, 
to  be  certified  by  it,  and  of  the  bonds  so  execut- 
ed and  delivered  the  trustee  shall  forthwith  cer- 
tify and  deliver  to  the  treasurer  of  the  company 
ninety  thousand  ($00,000)  dollars  worth  of 
said  bonds,  to  be  used  for  property,  real  and 
personal,  already  acquired  by  it,  and  ten  thou- 
sand ($10,000)  dollars  for  making  additional  im- 
provements and  extensions,  to  the  plant  of  said 
company." 

On  November  17,  1913,  the  treasurer  of 
the  water  company  acknowledged  in  writing: 

"The  receipt  of  $100,000  of  the  Reynoldsvllle 
Water  Oimpany  bonds ;  $90,000  for  the  proper- 
ty, real  and  personal,  already  acquired  by  it, 
and  $10,0(X)  tor  the  making  of  additional  im- 
provements and  extensions  to  the  plant  of  said 
company," 

Upon  the  delivery  of  this  receipt  by  the 
president  of  the  water  company  to  the  Farm- 
ers' &  Miners'  Trust  Company,  the  appellee, 
it  was  fully  warranted  in  what  it  subsequent- 
ly did  with  the  bonds,  and  the  Judgment  of 
the  court  below  is  afllrmed,  on  the  following 
from  its  «q?lnion  refusing  to  take  off  the  non- 
suit: 

"The  receipt,  prepared  and  signed  by  W.  Dale 
Shaffer,  treasurer,  and  sent  to  the  trust  com- 
pany, defendant,  acknowledging  the  receipt  of 
$100,000  of  the  Reynoldsville  Water  Company 
bonds,  was  clearly  designed  and  intended  by  the 
treasurer  of  the  company  to  be  his  official  and 
final  acknowledgment  of  the  receipt  of  that 
amount  of  the  bonds  from  the  trust  company, 
after  it  should  have  certified  them,  and  was  so 
regarded  by  the  trust  company.  Shaffer  sent  no 
request  and  gave  no  direction,  in  connection 
with  the  receipt  to  the  latter.  •  •  *  The 
man  who  sent  the  receipt  to  the  defendant  and 
requested  that  the  bonds  be  sent  to  him,  and  who 
got  them,  was  the  president  of  the  water  com- 


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pany,  and  also  a  director.  These  men  (the 
president  and  treasurer},  chosen  by  its  stock- 
nolders,  were  the  executive  ofScers  of  the  water 
company,  who  for  it  executed  the  bonds  and 
mortgage,  and  who  at  the  time  of  this  transac- 
tion were  deemed  worthy  of  trust  and  confidence, 
and  unsuspected  of  any  motive  but  the  interest 
of  the  company,  at  whose  bead  they  stood." 
Judgment  aflSrmed. 


(267  Pa.  Ml) 

In  re  CBOZER'S  ESTATE. 

(Supreme  Court  of  Pennsylvania.     March  19, 
1917.) 

1.  WlIXB  «S9523— CONBTBUOnOR  OF  Lkoaot— 

Refbkbentation  . 
Where  testator,  dying  without  issue  after  the 
death  of  two  of  his  brothers,  one  of  whom  left 
issue,  gave  an  undivided  part  of  certain  furni- 
ture to  his  three  brothers  and  two  sisters,  and 
the  residue  of  his  estate  to  his  two  sisters  and 
three  brothers  absolutely,  the  gift  was  not  to  a 
dass,  but  to  individuals,  and  the  issue  of  the  de- 
ceased brother  were  entitled  to  his  share. 

2.  WrLI,8  «=s>441— CoNSTB0CTIOt»— iNTBIfT. 

The  testator's  intention  as  gathered  from  the 
language  of  his  will  with  the  aid  of  his  sur- 
rounding circumstances  is  the  object  sought  in 
the  construction  of  a  wUL 

3.  Wills  €=>449— Oonstbuotion— Avoidanck 
OP  Intestacy. 

A  construction  resulting  in  intestacy  as  to 
the  residue  of  an  estate  is  most  stionf^  to  be 
avoided. 

4.  Wilis  <s»437—CoNSTEUCTioN— Intention 
— TniB. 

The  testator's  legal  intention  is  to  be  gath- 
ered from  the  state  of  the  law  at  the  date  jf  the 
will,  regardless  of  what  it  was  at  the  date  of 
his  death. 

6.   WlIXS   9=>6!iO—hAPSED   LiEQAOIKS— KX-KR- 
ACTMBNT  or  StATUTB. 

Act  Jul^  12.  1897  (P.  L.  256),  relating  to 
lapsed  legacies,  does  not  repeal,  but  re-enacts. 
Act  May  6,  1844  (P.  L.  665)  i  2,  providing  that 
no  legacy  to  a  brother  or  sister  by  one  not  leav^ 
ing  any  lineal  descendants  shall  lapse  by  rea- 
son of  the  decease  of  the  legatee  in  the  testator's 
lifetime,  if  the  legatee  leaves  issue  surviTing  the 
testator. 

Appeal  from  Oiphans'  CSoort,  Delaware 
County. 

George  K.  Crozer  and  others  appeal  from 
a  decree  dismissing  exceptions  to  the  report 
of  Joslah  Smith,  Esq.,  auditor.  In  the  estate 
of  Robert  U.  Crozer,  deceased.  Appeals  dis- 
missed, and  decree  affirmed. 

Tbe  following  is  the  opinion  of  Johnson, 
P.  J.,  dismissing  the  exceptions: 

The  testator,  by  his  will,  after  giving  sundry 
legacies  to  his  three  brothers  and  two  sisters, 
nairing  them,  and  after  bequeathing  in  the  fol- 
lowing words:  "I  give  and  bequeath  to  my 
three  brothers  and  two  sisters,  my  one-sixth  un- 
divided part  of  the  furniture,  etc.,  at  my  home 
in  Tpland,  which  I  received  from  my  mother's 
estate,  and  which  I  own  in  common  with  them" 
— disposes  of  the  residue  of  his  estate  in  the 
following  words:  "All  the  rest,  residue  and 
remainder  of  my  estate,  I  give  and  bequeath  to 
mr  two  sisters  and  three  brothers  absolutely." 
The  question  has  arisen  in  the  distribution  of 
the  estate  whether  by  these  clauses  the  gifts 
are  to  testator's  three  brothers  and  two  sisters 
individually  or  as  a  class.  The  auditor  has  de- 
cided  that  the  gifts  are  to  them   individually  i 


and  made  distribntion  accordingly,  and  excep- 
tions have  been  filed  to  this  conclusion. 

If  these  gifts  are  to  the  three  brothers  and 
two  sisters  as  a  class,  the  auditor's  distribution 
is  wrong.  If,  on  the  other  hand,  these  gifts 
are  to  them  as  individuals,  there  arises  a  sec- 
ond question:    Was  the  second  section  of  the 


so  repealed,  then  the  auditor's  distribution  is 
wrong;  otherwise,  it  is  correct.  To  sustain  the 
auditor  requires  an  affirmative  answer  to  the 
following  two  propositions:  (1)  The  gifts  to 
the  three  brothers  and  two  sisters  of  the  tes- 
tator were  to  them  as  individuals.  (2)  "The  act 
of  1S97  did  not  repeal  the  act  of  1844.  The 
auditor  has  addressed  to  the  solution  of  these 
questions  a  great  deal  of  painstaking  labor  and 
research,  and  fortified  his  conclusion  by  an  ex- 
haustive citation  of  the  authorities.  Agreeing 
as  we  do  with  his  conclusions,  it  is  unnecessary 
for  us  to  review  his  report  with  any  great 
degree  of  detail. 

[1-4]  The  object  to  be  obtained  is  the  ascer- 
tainment of  the  intent  of  the  testator,  to  be 
gathered  from  the  language  of  his  will,  with  tbe 
aid  of  his  surrounding  circumstances.  He  was 
a  very  wealthy  man  and  a  bachelor.  He  exe- 
cuted his  will  in  1888,  with  a  codicil  in  1893, 
and  died  in  1914,  73  years  of  age.  At  the  date 
of  his  will  his  parents  were  dead^  At  that  time, 
and  also  at  the  date  of  the  codicil,  he  bad  three 
living  brothers  and  two  sisters.  One  of  these 
brothers,  J.  Lewis  Crozer,  died  in  1897,  with- 
out children.  Another  brother,  Samuel  A  Croz- 
er, died  in  1910,  leaving  children.  His  other 
brother,  George  K.  Crozer,  and  his  two  sisters, 
Elizabeth  C.  Griffith  and  Emma  C.  Knowles, 
survived  him.  By  his  will  he  gave  legacies  of 
$10,000  each  to  his  brothers,  Samuel  A  and 
J.  Lewis,  naming  them,  and  then,  conscious  that 
he  was  about  to  give  munificent  legacies  to  bis 
sister,  Elizabeth  C.,  and  her  children,  and  to 
his  brother,  George  K.,  and  his  children,  and  to 
his  sister,  Emma  C,  and  her  children,  he  takes 
occasion  to  say  in  his  will  that  these  legacies 
of  $10,000  are  comparatively  small,  that  is  to 
say,  compared  with  those  about  to  be  given  to 
the  others,  and  that  they  are  made  thns  com- 
paratively small  for  reasons  which  he  states, 
and  then,  to  avoid  an  inference  that  the  distinc- 
tion is  attributable  to  any  difference  in  regard 
for  them,  he  says:  "My  love  for  all  my  broth- 
ers and  sisters  is  strong  and  deep."  He  then 
gives  to  his  sister  Elizabeth  C,  naming  her, 
and  her  children,  legacies  amounting  to  $250,- 
000;  also  to  his  brother,  George  K.,  naming  bim 
and  his  children,  a  like  sum ;  and  also  to  his  sis- 
ter, Emma  C,  naming  her  and  her  cbildren,  a 
like  sum.  Then  after  a  number  of  legacies 
come  these  two  clauses,  which  have  been  refer- 
red to,  and  which  produce  this  controversy: 

"Item.  I  give  and  bequeath  to  my  three  broth- 
ers and  two  sisters  my  one-sixth  undivided  part 
of  tbe  furniture,  etc.,  at  my  home  at  Upland, 
which  I  received  from  my  mother's  estate  and 
which  I  own  in  common  with  them." 

"Item.  AH  the  rest,  residue  and  remainder  of 
my  estate  I  give  and  bequeath  to  my  two  sis- 
ters and  three  brothers  absolutely." 

Did  the  testator  intend  these  glt'ts  to  the 
donees  to  be  to  them  as  a  class  or  as  individ- 
uals? It  would  scarcely  occur  to  the  average 
mind  that  these  gifts  were  otherwise  than  the 
ordinary  gifts  to  them  as  individuals.  What 
did  the  testator  intend  in  1888,  when  the  will 
was  executed?  Did  be  have  them  in  mind  as  a 
class?  If  he  had  in  mind  to  treat  them  as  a 
class,  then  he  intended  that  only  those  who 
survived  him  should  take,  and  the  children  of 
those  who  predeceased  him  should  be  excluded ; 
but  he  said  that  his  love  for  all  of  them  was 
deep   and   strong.    Moreover,    if   a   class   were 


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intended,  it  waa  not  known  in  18S8  bat  diat 
J.  Lewia  (>ozer  might  be  the  only  one  of  the 
cljiag  to  anrvive  him,  and  he  had  been  childlega 
for  many  years.  What  he  might  do  with  the 
testator's  estate  would  be  quite  uncertain.  This 
would  provoke  a  critical  commentary  upon  the 
testator's  expression  of  equality  of  love  for  all 
of  his  brothers  and  sisters.  And  that  is  not 
all,  for  if  the  whole  class  should  predecease 
him,  then  he  would  die  intestate  as  to  the  res- 
idue of  his  estate,  a  conclusion  of  construction 
most  strongly  to  be  avoided,  a  cardinal  canon 
of  construction. 

A  class  is  indeterminate  in  number  at  the 
date  of  the  will,  which  may  be  enlarged  or 
diminished,  and  finally  determined  at  the  death 
of  the  testator.  We  have  here  the  definite  num- 
ber, five,  incapable  of  enlargement.  True,  the 
number  may  be  decreased  by  death.  But  the 
number  of  uiares  remain  the  same,  if  those  dy- 
ing leave  children.  If  those  dying  should  not 
leave  children,  there  would  be  an  intestacy  to 
that  extent.  But  such  intestacy  as  to  a  possible 
share  or  shares  is  not  so  serious  as  a  possibil- 
ity of  an  intestacy  of  the  entire  residue  above 
alluded  to.  Gross'  Xlstate,  10  Pa.  360,  has  been 
in  the  limelight  of  tiie  argument  of  counsel. 
But  that  is  quite  a  different  case  from  this. 
There  the  gift  was  to  brothers'  and  sisters' 
children,  which  could  not  be  definitely  fixed  un- 
til testator's  death.  Hence  the  children  of  a 
deceased  brother  and  sister,  dying  before  the 
testator,  although  living  at  the  date  of  the  will 
were  excluded. 

A  testator's  legal  intention  is  to  be  gathered 
from  the  state  of  the  law  at  the  date  of  the 
will,  regardless  of  what  it  was  at  the  date  of 
his  death.  Martindale  v.  Warner,  15  Pa.  471; 
Hood  V.  Penna.  Society  to  Protect  Children 
from  Cruelty,  221  Pa.  474,  70  AU.  845,  Ann. 
Gas.  1913 A,  1290.  note.  If  these  were  not 
class  gifts,  then  this  testator  legally  intended 
under  the  act  of  May  6,  1844,  that  if  any  of  bis 
brothers  and  sisters  should  die  in  bis  lifetime 
leaving  children  they  should  take  their  parent's 
share,  and  that  such  was  not  his  actual  intent 
there  can  be  no  tenable  question.  He  had  them 
in  mind  as  individuals;  he  names  them  in  his 
will ;  he  states  their  number ;  they  were  all 
the  brothers  and  sisters  he  had  or  could  have; 
he  individualizes  them  by  sex;  they  were  all 
personally  near  to  him.  It  was  not  that  sisters 
should  take  if  the  brothers  were  dead,  nor  that 
brothers  should  take  if  tbe  sisters  were  dead, 
but  it  was  sisters  and  brothers  who  were  to 
take;  it  was  not  that  one  sister  was  to  take 
if  tbe  other  were  dead,  nor  that  one  or  two 
brothers  were  to  take  if  one  or  two  were  dead, 
but  it  was  his  two  sisters  and  three  brothers 
who  were  to  take. 

It  is  true  that,  where  there  is  a  general  gift 
to  brothers  and  sisters,  the  child  of  a  sister  who 
was  dead  at  the  date  of  the  will  is  not  entitled. 
Guentber's  Appeal,  4  Weekly  Notes  Cases,  41. 
But  the  reasoning  of  Judge  Penrose  in  Rey- 
nold's Estate,  11  Pa.  DisL  R.  387,  is  quite  con- 
vincing that,  where  the  gift  is  to  brothers  and 
sisters,  the  parents  being  dead,  it  is  a  gift  to 
them  as  individuals.  Tbe  same  reasoning  was 
applied  by  the  same  judge  to  the  brothers  and 
sisters  of  a  legatee  for  life.  (Wenzel's  Estate, 
12  Pa.  Dist.  R.  63);  and  again  to  nephews 
and  nieces,  where  the  number  is  incapable  of 
enlargement  in  Cooper's  Elstate,  29  Pa.  Co.  Ct 
425.  We  have  therefore  concluded  that  the  au- 
ditor's conclusion  that  these  gifts  were  to  the 
donees  as  individuals,  and  not  as  a  class,  is  cor- 
rect 

[5J  It  only  remains  to  refer  briefly  to  the  con- 
tention that  the  act  of  May  6,  1844,  has  been 
repealed  by  the  act  of  July  12,  1897.  We  are 
only  concerned  with  the  provision  respecting 
tbe  lapse  of  the  legacy  to  Samuel  A.  Crozer. 
There  has  never  been  a  moment  of  time  since 


tSaj  6,  1S44,  to  the  present  time,  when  it  has 
not  been  the  law  that  a  legacy  by  a  testator 
without  lineal  descendants  to  a  brother  dying 
during  testator's  life,  leaving  issue  surviving  the 
testator  does  not  lapse,  but  enures  to  such  is- 
sue. The  act  of  1897  re-enacts  the  act  of  1S44 
in  this  respect.  How  can  it  be  that  the  re-en- 
actment of  the  law  repeals  it,  and  this  by  im- 
plication? The  question  echoes  the  answer. 
Tbe  auditor  was  correct  in  holding  that  there 
was  no  such  repeal. 

Argued  before  BROWN,  G.  J.,  and  MES- 
TRJ!;ZAT,  STEWART,  MOSCHZISKER,  and 
WAli-ING,  JJ. 

William  I.  Schaffer  and  E.  Wallace  Chad- 
wick,  both  of  Chester,  for  api)ellant  Crozer. 
Maurice  Bower  Saul  and  Jesse  S.  Shepard, 
both  of  Philadelphia,  for  appellant  Knowles. 
Garnett  Penuieton,  of  Chester,  for  appellant 
Griffltb.  Benjamin  H.  Ludlow,  of  Philadel- 
phia, for  appellees  Hilprecht,  John  Price 
Crozer,  and  Page.  Harold  Evans  and  B.  Gor^ 
don  Bromley,  both  of  Philadelphia,  for  appel- 
lee Samuel  A.  Crozer,  3d.  Wm.  M.  Stewart, 
Jr.,  of  Philadelphia,  for  appellee  Fox.  Jo- 
seph H.  Uinkson  and  J.  DeUaven  Ledward, 
both  of  Chester,  for  appellee  Eklward  Crozer. 

PER  CURIAM.  These  appeals  are  dis- 
missed, and  the  decree  affirmed,  at  appel- 
lants' costs,  on  tbe  opinion  of  the  learned 
president  judge  of  the  court  below,  dismiss- 
ing the  exceptions  to  the  report  of  tbe  au- 
ditor. 

(267  Fa.  GO) 
LEOm   T.   PHIIiADEU?HIA   MACARONI 
CO. 

(Supreme   Court   of   Pennsylvania.     April   23, 
19170 

1.  Masteb  and  Sbbvakt  «s>278(12)— Nbqu- 
GENCE — Evidence. 

In  a  servant's  action  for  injury  from  the  de- 
scent of  an  elevator  without  warning  while  be 
was  working  in  the  elevator  pit,  evidence  h«U 
to  sustain  a  finding  of  negligence. 

2.  Tbial  *=>91— Statement  or  Pabtt— Mo- 
tion TO  Stbike. 

Where  a  servant,  suing  for  personal  injory, 
while  being  cross-examined  on  a  former  trial  as 
to  inconsistencies  between  his  testimony  and  his 
statement  of  claim,  denied  the  genuineness  of 
his  signature  to  such  statement,  apparently 
thinking  that  tbe  examiner  was  attempting  to 
entrap  him,  a  motion  at  a  subsequent  trial  to 
strike  out  the  statement  for  such  reason  was 
properly  dismissed,  where  defendant's  counsei 
objected  to  the  examination  of  plaintiff  as  to  tbe 
genuineness  of  his  signature  as  being  imma- 
terial. 

3.  Master  and    Servant  «=»291(4)— Action 
FOB  Injury— Instbuction. 

In  a  servant's  action  for  injury  from  the  de- 
scent of  an  elevator  without  warning,  the  re- 
fusal of  defendant's  requested  charge  that,  if 
plaintiS  went  into  the  elevator  pit  knowing  tbat 
his  safety  depended  upon  the  elevator  bmg 
locked,  and  after  trying  the  lock,  waa  satisfied 
that  it  was  locked,  and  was  thereafter  injured 
because  not  attentive  or  because  mistaken  _u> 
thinking  that  it  was  locked,  without  requiriMT 
the  jury  to  believe  that  plaintiff  did  not  rely  aP- 
on  the  assurance  of  safety  given  by  defendanrs 
engineer,  was  properly  refused,  where  plaintiff 
had  testified  that  the  engineer  had  promised  to 


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IiEOTTI  T.  PHIIiADELPHIA  MACAKONI  00. 


803 


put  some  one  on  the  first  floor  to  see  that  it  was 

not  lowered. 

4.  Teial  ®=»146— Statement  of   CounseI/— 

iNSTBtJCnONB   TO    lONORB — WITHDRAWAL   OV 

Jttbob. 
In  a  servant's  action  for  personal  injury,  the 
trial  judge  properly  refused  to  order  the  witb> 
drawal  of  a  juror  because  of  a  statement  of  his 
counsel  that  the  case  had  been  tried  before,  and 
that  plaintiff  had  told  the  same  story  at  the  last 
trial,  where  prior  reference  had  been  made  to  the 
fact  of  the  former  trial,  and  where  the  state- 
ment was  withdrawn  on  objection  with  an  in- 
struction to  ignore  it  and  determine  the  case  on 
the  evidence. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespasa  by  Joseph  Leottl  against  the 
Philadelphia  Macaroni  Company  to  recorer 
damages  for  personal  injury.  Verdict  for 
plaintiff  for  $11,000,  and  judgment  there(m, 
and  defendant  appeals.     AfBrmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKER.  FEAZEE,  and  WAD- 
UM6,  JJ. 

Ralph  B.  Evans,  Frank  P.  Prlchard,  and 
W.  W.  Smlthers,  all  of  Philadelphia,  for  ap- 
pellant J.  W.  Wescott,  of  PbUadelpbla,  for 
appellee. 

MOSCHZISKER,  J.  The  plaintiff,  a  car- 
penter,  was  injured  while  performing  services 
In  the  employ  of  the  defendant  company.  He 
sued  in  trespass,  alleging  negligence,  and  re- 
covered a  verdict,  upon  which  Judgment  was 
entered.    Defendant  has  appealed. 

[1]  The  following  facts  may  be  stated  as 
determined  by  the  Jury:  On  the  date  of  the 
accident,  November  4,  1915,  the  plaintiff, 
Joseph  Leottl,  was  about  40  years  of  age, 
and  a  vigorous,  healthy  man,  with  a  substan- 
tial earning  capacity.  He  was  Instructed  by 
the  engineer  of  the  defendant  company,  who 
bad  authority  to  give  the  order  lu  question, 
to  go  Into  an  elevator  pit.  In  the  cellar  of  the 
defendant's  premises,  for  the  purpose  of 
repairing  the  gates  of  the  elevator.  Where- 
upon plaintiff  said  to  the  engineer,  "Will  you 
guarantee  that  you  will  not  allow  this  eleva- 
tor to  come  down  on  me?"  and  the  latter  re- 
plied, "Yes;  I  will  station  a  man  at  the 
first  floor,  to  see  that  It  will  not  come  any 
lower  than  that."  Belying  upon  this  assur- 
ance, Leottl  entered  the  pit,  and,  while  he 
was  engaged  at  work,  the. elevator,  in  charge 
of  another  employ^,  who  had  not  been  In- 
formed of  the  plaintiff's  whereabouts,  de- 
scended upon  him,  so  injuring  his  back  that 
he  will  be  a  hopeless  cripple  the  rest  of  bis 
life. 

While  appellant  admitted  the  plaintiff  was 
told  to  repair  the  elevator  gates,  yet  it  denied 
he  had  been  given  any  promise  whatever 
that  precautions  would  be  taken  to  insure 
bis  safety.  In  fitct,  one  witness  for  de- 
fendant went  so  far  as  to  state  that  at  the 
time  the  instructions  for  the  work  were  giv- 
en the  engineer  left  plaintifTs  side.  In  or- 


der to  get  some  materials  for  use  In  connec- 
tion with  the  repairs  about  to  be  made,  and, 
as  he  did  so,  expressly  told  the  latter  not 
to  go  near  the  elevator  until  he,  the  engineer, 
should  come  back,  adding,  "I  will  operate  the 
elevator  and  you  will  work,  you  will  be  saf- 
er." This  was  the  answer  on  the  main 
branch  of  the  case.  There  was  no  pretense 
that  any  precautions  had  been  taken  to  in- 
sure the  safety  of  plaintiff;  the  theory  of 
the  defense  l>elng  that  neither  the  engineer 
nor  any  one  else  In  authority  knew,  or  had 
an  opportunity  to  know,  that  the  Injured 
man  had  placed  himself  in  a  position  of  dan- 
ger, and  therefore  that  he  did  so  at  his  own 
risk.  It  is  evident,  however,  that  the  Jury 
disbelieved  the  testimony  and  rejected  the 
theory  of  the  defendant,  accepting  that  of 
the  plaintiff:  and,  under  the  circumstances, 
they  reasonably  could  draw  the  conclusion 
that  the  former  had  been  guilty  of  negligence 
toward  the  latter  in  permitting  the  elevator 
to  descend  upon  him  without  warning.  Pow- 
ell V.  a.  Morgan  Smith  Oo„  237  Pa.  272,  85 
Atl.  416. 

[2]  AU  the  issues  involved  were  submit- 
ted to  the  Jury  in  a  careful,  comprehensive 
charge,  wlildi  was  eminently  fair  to  both 
sides;  but  the  appellant  complains  of  sev- 
eral rulings  of  the  learned  court  below,  which 
call  for  consideration.  This  case  was  tried 
once  before,  but,  for  some  unexplained  rea- 
son, the  former  verdict  in  appellee's  favor 
was  set  aside.  The  plaintiff  testified  through 
an  Interpreter.  At  the  other  trial,  when  un- 
der cross-examination,  counsel  for  the  de- 
fendant, holding  in  bis  hand  the  statement  of 
claim,  proceeded  to  question  plaintiff  as  to 
certain  alleged  inconsistencies  between  the 
averments  thereof  and  the  latter's  testimony, 
whereupon  the  witness,  no  doubt  thinking 
the  examiner  was  endeavoring  to  trap  him, 
denied  the  genuineness  of  Ills  own  signature 
upon  the  written  statement.  Prior  to  the 
trial  now  under  review  a  rule  was  taken, 
based  upon  this  Incident,  to  strike  the  state- 
ment of  claim  from  the  record ;  but  this  rule 
was  discharged.  When  the  present  trial 
opened,  the  defendant  again  moved,  on  the 
same  ground,  that  the  statement  should  be 
stricken  from  the  record,  and,  when  its  mo- 
tion was  overruled,  it  secured  an  exception, 
whicli  forms  the  basis  of  an  assignment  of 
error.  At  the  second  trial  counsel  for  the 
plaintiff  placed  before  him  the  original  state- 
ment of  claim,  and  proceeded  to  inquire  as 
to  the  genuhieness  of  bis  signature,  with  the 
evident  purpose  of  clearing  up  the  confusion 
on  that  point;  whereupon  counsel  for  de- 
fendant objected  to  the  Inquiry  as  "Imma- 
terial," stating  that  "there  is  no  objection 
now."  We  have  read  the  stenographer's 
notes  with  care,  and  so  far  as  they  throw 
light  upon  the  subject  in  hand.  It  appears 
clear  to  us  that  whatever  objection  had  for- 
merly been  entered  to  the  statement  of  claim 


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101  ATLANTIC  REPORTER 


(Fa> 


was  "withdrawn"  at  the  second  trial.  It 
may  be  well  to  note  at  this  point,  however, 
that  both  the  attorney  who  drew  the  state- 
ment and  the  notary  who  took  plaintUTs  af- 
fidavit, testified  to  the  genuineness  of  the 
latter's  slgnatnre;  further,  that  certain  tes- 
timony from  the  first  trial,  printed  in  ap- 
pellee's paper  book  shows  the  plaintifr  himself 
stated  he  had  signed  and  sworn  to  a  state- 
ment for  these  men,  when  he  was  at  the 
hospital  after  the  accident.  Under  the  cir- 
cumstances, we  feel  there  can  be  no  reason- 
able doubt  that  the  statement  of  claim  re- 
lied upon  by  plaintiff  was  prepared,  signed, 
and  sworn  to  in  the  usual  way. 

[3]  It  is  strongly  contended  that  the  trial 
Judge  erred  in  refusing  a  point  for  charge 
submitted  by  defendant,  as  follows: 

"If  you  find  that  when  plaintiff  went  into  the 
elevator  pit  be  knew  his  safety  depended  upon 
the  elevator  being  locked  above,  tried  to  lock  it 
himself,  wag  satisfied  that  it  was  already  locked, 
and  that  he  was  subsequently  hurt  because  he 
was  not  watchful  or  was  mistaken  in  his  belief 
that  the  elevator  was  lodced,  then  your  verdict 
should  be  for  the  defendant." 

It  appears  from  plaintifrs  testimony  that, 
when  he  went  into  the  pit,  be  looked  up  and 
saw  the  elevator  standing  at  the  fifth  fioor; 
that  be  tried  the  cord  and  found  the  vehicle 
was  already  locked  at  the  indicated  station ; 
that,  "it  being  locked  there,"  he  "could  not 
lock  it"  where  he  was  about  to  work,  as  he 
otherwise  might  have  done.  He  was  then 
asked  the  question,  "When  you  found  it  was 
locked  at  the  fifth  fioor,  yon  let  it  alone  and 
started  to  work.  Is  that  the  idea?"  and  re- 
plied, "Yes;  because  the  engineer  had  as- 
sured me  that  he  would  place  a  person  on 
the  first  fioor  to  see  that  it  would  not  be  low- 
ered." As  drawn,  the  point  was  properly  re- 
fused. Had  the  defendant  added  to  his  re- 
quest, after  the  last  use  of  the  word  "locked," 
something  to  the  effect  that,  if  the  Jury  fur- 
ther believed  the  plaintiff  did  not  in  fact  rely 
upon  the  alleged  guaranty  or  assurance  giv- 
en him  by  the  engineer,  then  the  point  would 
properly  have  covered  the  theory  of  the  de- 
fense, and  might  have  called  for  an  affirm- 
ance. 

[4]  There  Is  but  one  other  assignment  which 
requires  discussion,  and  that  concerns  the 
refusal  to  withdraw  a  Juror  on  motion  of 
defendant,  When  senior  counsel  for  plain- 
tiff was  summing  up,  he  said: 

"This  case  was  tried  once  before,  and  plaintiff 
went  on  the  witness  stand  and  told  his  story; 
he  told  identically  the  same  story  before  you." 

At  this  point  counsel  for  defendant  object- 
ed and  made  the  motion  which  we  are  now 
considering.  C!ounsel  for  plaintiff  withdrew 
the  remark;  whereupon  the  trial  Judge  in- 
structed the  Jury  they  were  to  ignore  the  in- 
cident and  determine  the  case  exclusively  up- 
on the  evidence  presented  before  them.  The 
notes  of  testimony  show  that  during  the  ex- 
amination of  the  witnesses  several  references 


had  been  made,  without  objection  from  any 
one,  to  the  circumstance  that  the  case  had 
been  tried  once  before;  hence  the  Jurors  must 
have  been  fully  aware  of  that  fact,  and  we 
do  not  feel  it  is  at  all  probable  the  entirely 
inadvertent  remark  of  counsel  prejudiced 
the  cause  of  the  defendant  O'Malley  v. 
Public  Ledger  Co.,  257  Pa.  17,  101  AtL  94. 

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


(WPa.  S3T> 
In  n  DISSTON'S  ESTATEl 

(Supreme   Court  of  Pennsylvania.     April   IS, 
1917.) 

1.  Wills  <8=»802(2)  —  Dkvibe  to  Widow  — 
Election  to  Takk  Aoainst  Will— Effect. 

Devises  or  bequests,  subordinate  to  a  life 
estate  in  a  widow  and  contingent  upon  ber 
death,  or  payment  of  which  is  postponed  until 
then,  becomes  presently  payable  upon  her  elec- 
tion to  take  under  the  intestate  laws,  which  as 
to  claims  under  the  will,  ia  equivalent  to  her 
death. 

2.  Wills  *=9802(2)—Tbust— Widow's  Elec- 
tion TO  Takk  UifOEB  Will— Acceuiratior 
OF  Remainder. 

Where  testator  devised  his  residuary  estate 
in  trust,  and,  after  providing  an  annuity  for  his 
sister-in-law,  directed  that  the  remaining  in- 
come, and,  on  the  annuitant's  death,  all  the  in- 
come, be  divided  equally  between  bis  widow,  bis 
son,  and  a  daughter,  and  that  at  the  widow's 
death  the  son  and  daughter  should  each  receive 
one-half  of  the  principal,  and,  on  the  deaUi  of 
either  before  her,  devised  remainders  over  of 
such  deceased  chUd'a  share  of  the  income,  the 
widow's  election  to  take  against  the  will  termi- 
nated the  trust  as  though  she  had  died,  and  ac- 
celerated the  son's  interest,  his  share  of  so  much 
of  the  principal  as  remained  after  the  widow  had 
been  paid  her  share  under  the  intestate  laws, 
subject  to  the  annuity. 

3.  Wills  €=»439— Constbuction— Intekt. 

In  the  construction  of  a  will  the  effort  ia  to 
find  and  carry  out  the  testator's  chief  intent 
with  a  minimum  disturbance  of  the  general  plan 
of  the  will. 

4.  Wills  «=s»802(2)— Effect  of  Widow's 
Election— pREStniPTiON  of  Testator's 
Knowledqe, 

A  teetator  is  presumed  to  know  that  a  wid- 
ow's statutory  rights  are  paramount,  and  that 
she  may  take  against  his  will,  that  her  election 
to  do  so  is  equivalent  to  her  death  for  the  pur- 
poses of  distribntion  and  that,  unless  hia  will 
plainly  indicates  a  contraij  intent,  the  remain- 
ders are  thereby  accelerated. 

5.  Wills  €=9802<2)— Rekahtdbbs— Accxleb- 

ATioN— Intent. 
An  intent  that  there  shall  be  no  acceleration 
may  be  shown  by  inevitable  implication,  &s 
where  the  will  itseu  fixes  a  definite  time  for  dii»- 
tribution  independently  of  the  life  tenant's 
deatli,  or  mokes  express  provision  as  to  the  ef- 
fect of  her  refusal  to  take  under  the  will,  or 
where  a  trust  is  created,  not  to  guard  the  life  in- 
terest, but  for  the  benefit  of  a  person  other  than 
the  life  tenant  or  remaindermen,  or  where  durinc 
the  life  estate  the  whole  income  is  given  to  the 
life  tenant  and  to  another,  whom,  for  apparent 
reasons,  the  testator  would  specially  desire  to 
enjoy  his  bounty  to  its  full  extent,  or  where  tfa« 
contmgency  upon  which  the  remaindermen  are 
to  take  is  such  that  the  persons  entitled  can  only 
be  ascertained  on  the  life  tenant's  death. 


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IN  RE  DISSTOK'S  ESTATE 


805 


61.  WiLl*    «=s»485— CoNSTBUOnON— IWTINT    — 

Dkpabtdbk. 
The  literal  provisionB  of  a  will  ma;  be  de- 
parted from  so  as  to  carry  out  what  appears  to 
be  a  gaperior  or  preferred  intent,  but  where  that 
is  d<me,  the  object  is  always  to  approximate  as 
nearly  as  possible  to  the  testator's  scheme, 
which  has  failed  by  reason  of  intervening  rights 
or  circumstances. 

7.  WrUiS    «=9802(2)— Rkuaindebs— AccELZB- 

ATION. 

Where  a  widow  was  to  receive  part  of  the 
income  of  an  estate  for  life,  and  the  balance  dur- 
ing her  life  was  given  to  testator's  children,  with 
remainders  of  principal  to  them  at  her  death, 
her  election  to  take  under  the  intestate  laws  ter- 
minated a  trust  created  to  hold  the  estate  intact 
for  her  benefit,  and  accelerated  the  estates  of  the 
children  as  effectually  as  though  she  was  to  en- 
joy the  entire  income  for  life ;  and  the  fact  that 
the  remainders  are  contingent,  or  that  alternate 
remainders  are  created  in  the  event  of  the  death 
of  such  children  in  her  lifetime,  will  not  make 
an  exception  to  the  rule  if  such  alternate  re- 
mainders appear  to  be  only  substitutionary. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

William  Dunlop  Disston  appeals  from  a 
decree  dismissing  exceptions  to  adjudication 
in  the  estate  of  William  Disston,  deceased. 
Reversed,  and  record  remitted  for  distribu- 
tion. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKEiR,  FRAZER,  and  WAL- 
LING, JJ. 

Joseph  Gllflllan,  of  Philadelphia,  for  ap- 
pellant. 

MOSCHZISKER,  J.  The  question  in  this 
case  is  whether  or  not  a  certain  Interest  In 
remainder  has  been  accelerated  by  the  elec- 
tion of  a  widow  to  take  against  her  husband's 
wlU.  The  court  below  held  in  the  negative, 
and  William  Dunlop  Disston,  the  remainder- 
man in  question,  has  appealed. 

The  testator,  William  Disston,  died  April 
6, 1915,  lea^-lng  a  will  wherein  he  devised  his 
residuary  estate  in  trust  to  keep  the  princi- 
pal invested,  collect  the  Income,  and  pay 
therefrom  to  Estelle  M.  Dunlop,  a  sister-in- 
law,  $10,000  per  annum  during  the  term  of 
her  natural  life ;  the  remaining  income,  and, 
after  the  death  of  the  annuitant,  all  Income, 
to  be  divided  equally  between  the  testator's 
wife,  his  son  (the  appellant),  and  a  daughter, 
Pauline  Disston,  the  share  of  the  latter  being 
placed  in  trust.  The  testator  then  provided 
that  In  the  event  of  the  death  of  either  his 
son  or  daughter,  leaving  issue,  during  the 
lifetime  of  his  widow,  the  share  of  income  of 
the  one  so  dying  should  be  paid  to  his  or  her 
issue;  that  should  either  of  his  children  die 
without  issue  during  the  lifetime  of  bis 
widow,  the  Income  of  the  one  so  dying  should 
be  paid  in  equal  shares  to  the  widow  and 
surviving  child  so  long  as  the  former  lived; 
further,  that  upon  the  death  of  such  surviv- 
ing child  without  Issue,  during  the  lifetime 
of  his  or  her  mother,  all  income,  subject  to 
the  payment  of  the  before-mentioned  annuity,  I 


should  go  to  the  testator's  wife.  As  to  the 
principal,  subject  to  the  annuity,  at  the  death 
of  his  widow,  the  testator  gave  one-half  of  his 
residuary  estate  to  his  son,  providing,  how- 
ever, that  should  the  son  tbai  be  deceased, 
the  share  in  question  should  go  to  the  latter's 
issue.  The  other  half  he  directed  should  be 
retained  by  the  trustees  named  in  his  will, 
the  Income  therefrom  to  be  paid  to  his 
(laughter  for  life,  with  remainder  to  her  is- 
sue. He  then  provided  that,  if  either  of  his 
children  should  be  dead,  without  issue,  at  the 
decease  of  his  widow,  the  share  of  the  one  so 
dying  should  be  paid  to  or  held  for  the  sur- 
vivor. Finally,  should  both  children  be  so 
deceased,  he  gave  the  principal  of  his  residu- 
ary estate  to  his  nephews  and  nieces  or  their 
issue  living  at  the  time. 

The  testator's  widow  elected  to  take 
against  his  will,  and,  at  the  audit  of  the  ex- 
ecutors' account  in  the  orphans'  court,  the 
son  claimed  one-half  of  so  much  of  the  prin- 
cipal of  the  estate  as  remained  after  his 
mother  had  been  paid  her  share  under  the  In- 
testate laws;  but  he  conceded  that  a  sum 
sufficient  to  meet  the  annuity  should  be  set 
aside  for  that  purpose.  The  court  below  de- 
termined, however,  that  the  son's  share  must 
remain  In  trust  so  long  as  the  widow  lived, 
in  order  to  prevent  him  from  controlling  the 
principal  during  that  period,  and  to  permit 
the  alternate  gifts  in  remainder  to  become 
effective  should  he  die  in  his  mother's  life- 
time. The  appellant  claims  this  was  error; 
tliat  both  his  and  his  sister's  shares  of  the 
principal  of  the  testator's  estate  were  accel- 
erated by  their  mother's  election  to  take 
against  her  husband's  will;  and  that,  after 
a  sufficient  sum  is  set  aside  to  assure  the 
payment  of  the  annuity,  he  Is  entitled  to  an 
absolute  award  of  one-half  the  residue. 

[1]  The  relevant  rules  of  law  are  well  set- 
tled with  u&  In  Ferguson's  Estate,  138  Pa. 
208,  219,  20  AtL  946,  910,  speaking  by  Mr. 
Justice  Mitchell,  we  state  the  cardinal  prin- 
ciple thus: 

"Devises  or  bequests,  subordinate  to  a  life  es- 
tate in  the  widow  and  contingent  upon  her  death, 
or  payment  of  which  is  postponed  antil  then,  be- 
come presently  payable  upon  her  election  to  take 
under  the  intestate  laws.  As  to  its  effect  upon 
all  claims  under  the  willj  her  election  is  equiva- 
lent to  her  death.  This  is  the  general  rule,  and 
if  there  are  any  exceptions,  they  must  depend  on 
the  expression  or  unavoidable  implication  of  a 
contrary  intent  of  the  testator." 

In  Vance's  Estate,  141  Pa.  201,  213,  21  AtL 
643,  645  (12  L.  R.  A.  227,  23  Am.  St.  Rep. 
267),  we  said: 

"Law  must  have  a  settled  and  uniform  rule, 
and  it  is  that  as  to  the  provisions  in  a  will  for 
l^des  subordinate  to  a  life  interest  in  the 
widow  and  contingent  upon  her  death,  or  pay- 
ment of  which  is  postponed  till  then,  her  elec- 
tion to  take  against  the  will  is  equivalent  to  her 
death." 

In  Woodbum's  Estate,  151  Pa.  586,  589, 
25  Atl.  145,  we  determined  that  this  cardinal 
rule  governed  where,  as  in  the  case  at  bar. 


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the  testator  gaTe  hia  widow,  for  life,  "not 
the  Income  of  one-third,  but  one-tbird  of  the 
Income  of  the  whole"  of  his  estate.  We 
there  said; 

"To  ascertain  and  secure  such  third,  the  whole 
estate  had  to  be  kept  together,  and  such  was  un- 
doubtedly the  testator's  intention." 

[2]  The  language  last  quoted  Is  applicabie 
here.  It  is  apparent  from  a  reading  of  the 
will  that  the  testator's  paramount  intention 
was  to  create  a  trust  during  the  life  of  his 
widow,  so  that  she  might  enjoy  the  income 
from,  not  one-third  of  his  estate,  but  one- 
tlilrd  of  the  income  from  his  whole  estate, 
and  that,  after  thus  providing  for  his  wife, 
the  primary  object  he  had  in  view  was  to 
benefit  his  children.  In  other  words,  the  tes- 
tator intended  to  leave  his  residuary  estate, 
subject  only  to  his  slater-in-law's  annuity, 
for  the  benefit  of  his  wife  and  children,  the 
former  to  receive  one-third  of  the  income  for 
her  life,  and  each  of  the  latter  a  like  propor- 
Uon  for  the  same  period.  When  his  widow's 
Interest  should  terminate,  he  intended  his 
two  children  to  take  the  whole  principal,  the 
son's  share  being  absolute,  and  the  daughter's 
continuing  In  trust;  and  It  seems  evident 
that  he  postponed  this  distribution  until  his 
widow's  death  for  the  reason  that  be  desired 
the  entire  estate  held  Intact,  to  secure  her 
one-third  of  the  income  therefrom,  rather 
than  to  set  aside  one-third  of  the  principal 
for  her  benefit.  Finally,  the  alternate  re- 
mainders, after  the  devises  to  his  wife  and 
children,  are  substitutionary  In  character, 
and  Inserted  to  prevent  the  occurrence  of  a 
lapse  should  either  or  both  of  the  children 
die  during  the  continuance  of  the  trust  cre- 
ated for  the  purpose  Just  Indicated.  This 
being  the  evident  scheme  of  the  will,  and  the 
plan  having  been  interfered  with  by  the  wid- 
ow's election  to  take  her  share  under  the  in- 
testate laws,  the  acceleration  of  the  remain- 
der interests  given  to  testator's  dilldren 
would  carry  out  his  principal  Intent,  and  also 
adhere  to  hia  general  plan  better  than  con- 
tinuing the  trust  so  tliat  the  secondary  ob- 
jects of  his  bounty  might  be  afforded  an  op- 
portunity to  derive  a  possible  benefit  In  the 
future. 

[3,4]  In  a  case  like  the  one  before  us  the 
effort  must  be  to  find  and  carry  out  the  tes- 
tator's chief  intent  with  a  minimum  disturt>- 
ance  of  the  general  plan  of  the  wilL  After 
hl»  wife,  the  testator's  children  were  the  nat- 
ural and  primary  objects  of  his  bounty,  not 
their  issue,  still  less  nephews  and  nieces  or 
their  issue,  and  the  alternate  provisions  for 
others,  after  the  testator's  children,  were  un- 
doubtedly Intended  as  substitutionary,  in 
case  the  latter  died  during  the  life  of  their 
mother,  should  ehe  take  under  the  will ;  but, 
as  said  by  Mr.  Justice  Mitchell,  in  Vance's 
Estate,  supra,  141  Pa.  p.  209,  21  Atl.  643.  12 
Ia  R.  A.  227,  23  Am.  St  Rep.  267,  a  testator 
Is  presumed  to  know  that  a  widow's  statutory 
rights  are  paramount,  and  that  she  may  take 
against  his  will ;  to  which  we  now  add  that 
a  testator  Is  presumed  to  know  also  the  gen- 


eral rule  that  the  election  of  a  widow  to  take 
under  the  intestate  laws  is  equivalent  to  her 
death,  and  that,  unless  his  will  plainly  Indi- 
cates a  contrary  intent,  remainders  are  ac- 
celerated accordingly. 

[t]  Of  course,  an  intent  that  there  shall 
be  no  acceleration  may  be  shown  by  inevita- 
ble implication,  as,  for  Instance,  where  the 
will  itself  fixes  a  definite  time  for  dlstribu- 
tlon  independently  of  the  widow's  death  or 
expressly  provides  as  to  the  effect  of  her  re- 
fusal to  take  thereunder  (Relgliard's  Estate, 
253  Pa.  43,  53,  97  Atl.  1(M4)-,  or  where  a 
trust  is  created  not  simply  to  guard  the  wid- 
ow's life  interest,  but  also  for  the  benefit  of 
a  third  party  other  tlian  dther  the  widow  or 
remaindermen  (Young's  Appeal,  108  Pa.  17. 
22):  or,  again,  where  during  the  life  of  a 
widow  the  whole  income  is  given  to  her  and 
another,  the  latter  of  whom,  for  appareut 
reasons,  the  testator  would  specially  desire 
to  enjoy  his  Imunty  to  the  full  extent  indicat- 
ed— a  mother,  for  example — and,  after  the 
life  estate  of  the  wife,  remainders  are  Un- 
ited to  others  In  addition  to  the  mother,  so 
that,  in  case  of  acceleration,  the  income  in- 
tended for  the  latter  would  be  materially 
diminished  during,  In  all  probability,  an  ap- 
preciable period  of  time  (Portuoudo's  Estate, 
185  Pa.  472,  39  Aa  1105) ;  or  where  the  con- 
tingency upon  which  the  remaindermen  are 
to  take  is  such  that,  in  the  nature  of  things, 
the  persons  entitled  can  be  ascertained  only 
by  the  physical  death  of  the  widow;  and 
perhaps  other  instances  might  be  died 
Some  of  these  exceptions  and  the  Pennsyl- 
vania cases  dealing  therewith  are  well  (un- 
sidered  by  Judge  Porter,  of  the  Superior 
Court,  in  a  recent  opinion  handed  down  In 
Wyllner's  Estate,  65  Pa.  Super.  Ct  396,  a 
case  much  like  the  present;  and  Interesting 
discussion  by  that  eminent  Jurist  the  late 
Judge  Penrose  upon  the  general  subject  now 
before  us  may  be  found  in  Key's  Estate,  4 
Pa.  Dlst  R.  134. 

[8]  To  sum  up  our  concluslona  on  the  law 
and  facts  here  involved:  In  a  case  such  as 
the  one  at  bar,  the  literal  provisions  of  a  will 
may  be  departed  from  so  as  to  carry  oat 
what  appears  to  be  a  superior  or  preferred 
Intent ;  but,  when  this  is  done,  the  object  in 
view  must  always  be  "to  approximate  as 
closely  as  jjosslble  to  the  scheme  of  the  testa- 
tor which  has  failed  by  reastxi  of  Intervening 
rights  or  circumstances."  Ferguson's  Estate, 
138  Pa.  208,  220,  20  Atl.  945,  94& 

[7]  Where  the  widow,  so  long  as  she  lives, 
is  to  receive  a  part  of  the  income  of  the  whole 
estate,  and  the  balance  of  income,  during  her 
life,  la  given  to  testator's  children,  with  re* 
malnders  of  principal  to  the  same  children  at 
the  widow's  death,  her  election  to  take  under 
the  intestate  laws  will  terminate  a  trust  crea- 
ted for  the  purpose  of  holding  the  estate  in- 
tact for  lier  benefit,  and  accelerate  the  estates 
of  the  children  Just  as  effectually  as  though 
the  provision  for  the  widow  were  that  she  was 
to  enjoy  the  entire  Income  during  her  life 


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(Woodbam'8  Estate,  mpra);  and  the  fact 
that  the  remainders  glren  to  the  children 
may  be  contingent  (CooTer's  Appeal,  74  Pa. 
143,  147),  or  that  alternate  remainders  may 
be  provided  for  In  the  event  of  the  decease  of 
such  children  In  the  lifetime  of  the  widow 
(Wyllner's  Estate,  supra),  will  not  take  a  case 
out  of  the  operation  of  the  general  rule.  If, 
on  a  view  of  the  whole  will,  or  the  particu- 
lar part  In  question,  such  alternate  remain- 
ders appear  to  be  merely  secondary  or  sub- 
stitutionary In  character.  See  other  cases 
supra.  As  already  Indicated,  we  are  of  opin- 
ion that  the  trust  created  by  the  present  tes- 
tator was  not  intended  to  continue  until  the 
actual  death  of  his  widow,  but  only  so  long 
as  she  might  have  an  interest  In  the  estate 
passing  under  his  will.  When  she  elected  to 
take  against  that  instrument,  the  testator's 
full  intent  could  not  be  carried  out,  and  the 
trust  came  to  an  end  to  the  same  extent  as 
though  the  widow  had  physically  died. 
Hence  the  ai^pellant's  Interest  was  acceler- 
ated, and  the  learned  court  bdow  should 
have  so  held. 

The  decree  Is  reversed,  and  the  record  re- 
mitted for  distribution  in  accordance  with 
the  views  herein  expressed. 


(257  P».  478) 

In  re  McGINr..EY'S  ESTATE. 

Appeal  of  TRACEY  et  al. 

(Supreme   Court  of   Pennsylvania.     April   16, 
1917.) 

1.  Wttus  «=»316(1)  —  Contest  —  Issue  —  Du- 

VI8AVIT  VEI.  son— RlOIFT  TO  SUBMSISION. 

In  determining  ttie  right  to  an  issue  devisa- 
vit  vel  non,  the  test  is  whether,  after  a  review  of 
the  whole  testimony,  tiie  trial  judge  would  sus- 
tain a  verdict  against  the  will  ns  in  accord  with 
the  manifest  weight  of  the  evidence. 

2.  Wills  <S=»316(2)— Mental  Capacitt— Evi- 
dence. 

Evidence  held  insufficient  to  authorize  an  is- 
sne  devisarit  vel  non  on  the  ground  of  the  tes- 
tatrix's unsoundness  of  mind. 

3.  Wills  €=»316(3)— Undue  Influence— Evi- 
dence. 

E>ndence  held  insufficient  to  authorize  an  is- 
sue of  devisavit  vel  non  on  the  ground  of  undue 
influence. 

4.  Wills      ®=>316(1)  —  Evidence  —  Mutual 
Wills. 

Evidence  in  a  will  contest  held  to  authorize 
an  issue  as  to  whether  the  testatrix  and  her 
husband  had  entered  into  an  agreement  between 
themselves  and  contestants  to  make  mutual  and 
reciprocal  wills,  devising  their  property  to  con- 
testants in  consideration  that  contestants  would 
take  care  of  them  during  their  lives. 

5.  Wills   «=>58(1)— Contbaot   to   Devise— 
Validity. 

One  may  enter  into  a  valid  contract  to  dis- 
pose of  his  real  or  personal  property  by  will  in 
a  particular  way. 

6.  SpEcinc    Pebfobmance   «=s>86— Contract 
TO  Devise. 

A  contract  to  dispose  of  real  or  personal 
property  by  will  in  a  particular  way  may  be 
specifically  enforced. 


7.  Fbauds,  Statute  or  «=s7S— Pabol  Coh- 
TRACT  TO  Devise— Execution. 
When  a  valid  contract  to  dispose  of  proper- 
ty by  will  in  a  particular  way  has  been  proved, 
the  will  becomes  a  writing  containing  the  terms 
of  the  agreement  and  satisfying  the  statute  of 
frauds. 

Appeal  from  Orphans'  Court,  Berks  County. 

Catherine  T.  Tracey  and  another  appeal 
from  a  decree  of  the  orphans'  court  dismiss- 
ing appeal  from  decree  of  register  of  wills, 
in  estate  of  Susan  McGinley,  deceased,  admit- 
ting decedent's  will  to  probate.  Reversed 
and  an  issue  awarded. 

Argued  before  BROWN,  C.  J.,  and  MES- 
THEZAT,  STEWART,  MOSCHZISKER,  and 
FRAZER,  JJ. 

Cyrus  G.  Derr  and  Walter  B.  Freed,  both  of 
Reading,  for  appellants.  Ira  G.  Kutz,  of 
Reading,  for  appellees. 

MESTREZAT,  3.  Catherine  T.  Tracey  and 
Rose  M.  Rehrer,  nieces  of  Susan  McGinley, 
deceased,  who  survived  her  husband,  Stephen 
McGinley,  presented  their  petition  to  the  or- 
phans'- court  of  Berks  county,  averring,  inter 
alia,  that  Stephen  McGinley  and  Susjiu  Mc- 
Ginley had,  in  pursuance  of  a  contract  be- 
tween themselves  and  the  petitioners,  made 
mutual  and  reciprocal  wills  on  May  22,  1914, 
In  which  they  had  devised  their  property  to 
the  petitioners  in  consideration  that  the  lat- 
ter would  take  care  of  them  during  life; 
that  the  register  of  wills  bad  admitted  to 
probate,  against  their  objection,  a  paper  writ- 
ing purporting  to  be  the  last  will  and  testa- 
ment of  Susan  McGinley,  dated  April  6, 1915 ; 
that  petitioners  had  filed  their  appeal  from 
the  decision  of  the  register  admitting  the  pa- 
per to  probate;  and  prayed  the  court  to 
award  a  citation  to  the  legatees  named  in 
the  alleged  will  of  April  6,  1915,  to  show 
cause  why  said  will  should  not  be  adjudged 
void,  and  why  a  precept  should  not  be  issued 
to  the  court  of  common  pleas  directing  that 
an  issue  be  framed  to  determine  whether 
Susan  McGinley  was  the  victim  of  hallucina- 
tions and  delusions,  was  of  sound  and  dispos- 
ing mind,  whether  the  execution  of  the  will 
was  procured  by  fraud  or  undue  influence, 
and  "whether  the  paper  writing  dated  May 
22,  1914,  signed  by  the  said  Susan  McGinley, 
is  such  a  mutual  and  reciprocal  will  as  to 
prevent  the  said  Susan  McGinley  from  revok- 
ing the  same  after  the  death  of  the  said 
Stephen  McGinley."  A  citation  was  awarded 
to  which  an  answer  was  filed  denying  the 
mental  Incapacity  of  Susan  McGinley,  that 
she  had  hallucinations  and  delusions,  and 
that  the  will  was  void,  and  also  denying 
the  alleged  facts  averred  in  support  of  the 
allegation  that  the  will  was  void.  The  or- 
phans' court  refused  to  issue  devisavit  vel 
non,  and  the  contestants  have  appealed. 

We  have  carefully  examined  the  evidence, 
and  agree  with  the  learned  Judge  of  the  oonrt 
below  that  It  is  insufficient  to  Justify  a  ver- 


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diet  that  at  the  date  of  the  wUl,  April  6, 
1915,  the  decedent  .was  of  unsound  mind  or 
was  subject  to  hallucinations  and  delusions 
concerning  the  contestants,  or  that  the  will 
was  procured  by  fraud  or  undue  Influence. 

[1]  In  determining  the  right  to  an  Issue, 
the  test  is  whether,  after  a  review  of  the 
whole  testimony,  the  trial  Judge  would  sus- 
tain a  Terdict  against  the  will  as  being  in  ac- 
cord with  the  manifest  weight  of  the  evidence, 

[2, 3]  The  subscribing  witnesses,  one  of 
whom  wrote  the  will,  the  physician  of  the 
decedent,  the  alderman  of  the  ward  who  had 
transacted  her  business  for  years,  and  anoth- 
er reputable  witness  testified  that  her  mental 
condition  was  good  at  the  time  she  executed 
the  will.  It  appears  from  this  testimony  that 
the  decedent  furnished  the  data  to  the  scrive- 
ner for  preparing  the  will,  and  he  testlfled 
he  read  the  will  to  her,  and  her  conversation 
was  clear  and  natural,  her  hearing  and  sight 
were  good,  and  she  knew  what  she  was  doing, 
what  property  she  possessed,  and  to  whom 
her  estate  was  to  go.  The  contestants  intro- 
duced testimony  to  show  tliat  on  one  occasion 
the  decedent  had  In,  an  excited  manner,  or- 
dered the  name  of  one  of  the  contestants  to 
be  taken  off  the  books  of  a  trust  company,  and 
on  several  occasions  had  made  remarks  In  an- 
swer to  greetings  of  friends  on  the  street 
which  Indicated  a  weak  Intellect  and  a  loss 
of  memory.  Several  other  Incidents  were 
shown  .which  are  of  little  or  no  weight  In 
establishing  mental  infirmity  in  the  decedent. 
A  Jury  would  not  be  permitted  to  find  men- 
tal Incompetency  or  undue  influence  from 
such  testimony,  and  the  court  was  right  in 
refusing  the  Issue  for  such  reason. 

[4-7]  We  cannot  assent  to  the  learned 
Judge's  conclusion  that  the  oral  evidence  sub- 
mitted in  conjunction  with  the  wills  of  May 
22,  1914,  was  insufliclent  to  Justify  the  court 
in  granting  an  is.sue  to  determine  whether 
the  parties  entered  Into  the  agreement  as 
alleged  by  the  contestants.  This,  as  will  be 
observed,  was  one  of  the  questions  which  was 
raised  by  the  pleadings,  and  was  considered 
by  the  court  in  determining  whether  an  issue 
should  be  sent  to  the  common  pleas.  Susan 
McGlnley,  the  decedent,  and  Stephen  McGln- 
ley,  her  husband,  each  made  a  will  on  May 
22,  1914,  by  which  they  gave  all  their  prop- 
erty, after  the  death  of  the  survivor  of  them, 
to  Mrs.  McGinley's  two  nieces,  the  contestants 
In  this  proceeding.  These  wills  were  written 
by  the  same  scrivener,  executed  at  the  same 
time,  witnessed  by  the  same  parties,  and  are 
identical  in  form  and  efltect,  the  name  of  the 
principal  beneficiary  in  each  being  the  only 
difference.  The  contestants  Introduced  evi- 
dence to  show  that  the  two  wills  were  execut- 
ed, mutually  and  reciprocally.  In  pursuance 
of  an  agreement  between  the  McGlnleys  and 
their  nieces  that,  if  the  latter  continued,  as 
formerly,  to  care  for  their  uncle  and  aunt  as 
long  as  both  lived,  they  were  to  have  all  the 
property  of  the  McGlnleys  after  the  death  of 


the  survivor,  and  that  the  nieces  performed 
their  part  of  the  contract,  having  taken  care 
of  Stephen  McGlnley  until  his  death  on  Sep- 
tember 9,  1914,  and  of  Susan  McGlnley  until 
within  three  weeks  of  her  death,  when  she 
left  the  home  of  the  nieces  without  cause  and 
without  their  consent  or  agreement  It  is 
therefore  claimed  that  Mrs.  McGlnley  vio- 
lated her  contract  with  her  husband  and  her 
nieces,  and,  after  his  death,  attempted  to 
revoke  her  will  of  May  22,  1914,  by  making 
another  wUl  on  April  6,  1915,  the  subject  of 
this  contest,  by  which  she  excluded  her  niec- 
es and  gave  to  strangers  the  estate  which  she 
owned  in  her  own  right  and  that  which  she 
received  by  her  husband's  will 

It  is  well  settled  that  one  may  enter  Into  a 
valid  contract  to  dispose  by  will  of  his  prop- 
erty, real  or  personal,  in  a  particular  way. 
and  that  such  will  is  Irrevocable  and  the  con- 
tract will  be  specifically  enforced.  There  are 
many  examples  of  the  recognition  of  this 
doctrine  in  this  state  and  other  states.  Caw- 
ley's  Est,  136  Pa.  628,  20  Atl.  567.  10  L.  R. 
A.  93;  Smith  V.  Tult,  127  Pa.  341,  17  Atl. 
995,  14  Am.  St  Rep.  851 ;  Wright's  Est.  155 
Pa.  64,  25  Atl.  877;  Shroyer  v.  Smith,  204 
Pa.  310,  54  Atl.  24;  Lewallen's  Est,  27  Pa. 
Super.  Ct  320;  Park  v.  Park.  39  Pa.  Super. 
Ct  212;  Frazler  et  aL  v.  Patterson  et  al., 
243  111.  80,  90  N.  E.  216,  27  L.  R.  A.  (N.  S.) 
508,  17  Ann.  Cas.  1003,  and  notes.  In  Thomp- 
son on  Wills,  {  28,  the  learned  author  says: 

"Mutual  wills — that  is,  where  two  persons  exe- 
cute wills  reciprocal  in  their  provisiong,  but 
separate  instruments— may  or  may  not  be  rev- 
ocable at  the  pleasure  of  either  party,  ac- 
cording to  the  circumstances  and  understanding 
upon  which  they  were  executed.  To  deprive 
either  party  of  die  right  to  revoke  such  mutual 
wills,  ft  is  necessary  to  prove  such  wills  were 
executed  in  pursuance  of  a  contract  or  a  com- 
pact between  the  parties  and  that  each  is  the 
consideration  for  the  other." 

When  such  contract  has  been  proved,  the 
will  becomes  a  writing  containing  the  terms 
of  the  agreement,  and  satisfies  the  statute  of 
frauds.  Shroyer  v.  Smith,  204  Pa.  310,  54 
Atl.  24. 

We  think  the  evidence  submitted  to  and 
considered  by  the  court  was  sufficient  to 
send  the  case  to  a  Jury  to  determine  the  ex- 
istence of  the  alleged  contract  between  the 
McGlnleys  and  the  contestants,  and  whether 
the  latter  performed  their  part  of  the  agree- 
ment The  court  concedes  that  the  wills  of 
May  22,  1914,  put  In  evidence,  have  the  ear- 
marks of  mutual  wills.  The  contestants  in- 
troduced parol  evidence  in  support  of  the 
contract  One  of  the  witnesses  was  Fletcher 
E.  Nyce,  asaUtant  treasurer  of  the  Pennsyl- 
vania Trust  Company  of  Reading,  and  for 
many  years  the  financial  adviser  of  the  Mc- 
Glnleys.   He  testified,  inter  alia,  as  foUows: 

"About  the  middle  of  July,  1914,  I  was  down 
to  see  Mr.  and  Mrs.  McGlnley:  and  at  that 
time  Mr.  McGlnley  told  me.  He  said,  'Mr. 
Nyce,'  he  said,  'Susan  and  I  have  agreed  to 
make  wills,  and  we  went  out  to  see  Pat  Breen, 
and  we  had  him  draw  the  wills.'  He  said, 
'Mrs.  Rehrer'— he  called  her  Roeie— 'you  go  op 


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ZENZIL  V.  DELAWARE,  L.  &  W.  R.  CO. 


809 


and  get  them  and  let  Mr.  Nyce  see  them.'  And 
Mrs.  Rehrer  went  upstairs,  and  in  a  little  while 
she  came  down  with  the  two  papers.  I  looked 
at  them  and  read  them  both,  and  I  said,  'Well, 
Mr.  McGinley,  this  Is  fine;  this  is  fine.'  He 
said,  '^es,  the  girls  have  left  their  homes  and 
came  to  us  to  take  care  of  us.  You  see,  there 
is  Susan,  she  can't  do  anything,  she  is  help- 
less, and  I  haven't  been  able  to  do  anything 
for  quite  a  long  time,  and  Susan  and  I  have 
agreed  to  give  the  girls  everything  that  was  left 
if  they  would  stay  with  us  and  take  care  of 
us  until  we  are  gone;  the  girls  have  been 
kind  to  us.'  And  he  said^^'Isn't  that  right, 
Susan?'  And  she  said,  'Yes,  papa;  that's 
right,'  she  said ;  'The  girls  are  to  have  all,  if 
only  they  will  stay  witii  us,  and  we  promised 
them  if  they  would  stay  with  us  we  would  give 
them  all  we  had  when  we  are  gone.' " 

Be  ftirtber  testified  that  Mrs.  McGinley 
and  Mrs.  Rebrer  were  present  during  the 
conversation,  and  that  the  former  repeated 
the  words  of  her  husband  three  or  four 
times.  Two  or  three  days  after  Mr.  McGln- 
ley's  death,  Mr.  Nyce  saw  Mrs.  McGinley 
again,  and  she  said: 

"Mr.  Nyce,  poor  Steve,  he  couldn't  last  any 
longer.  Now.  I  am  going  to  the  hospital,  and 
these  girls  will  be  here  to  have  everything  aft- 
er my  death." 

He  Identlfled  the  wills  of  May  22,  1914,  as 
the  two  papers  shown  him  on  the  occasion  of 
his  visit  to  the  McGinleys  In  Jtdy,  1914.  The 
McGlnleys  owned  property  of  the  value  of 
about  $4,000  and  were  childless.  In  the  lat- 
er years  of  their  lives  Mr.  McGinley  was  af- 
flicted with  cancer  of  the  face  and  Mrs. 
McGinley  suffered  a  paralytic  stroke.  It  ap- 
pears that  Mrs.  McGinley  went  to  a  hospital 
in  September,  1014,  and  returned  to  her  niec- 
es early  in  October,  and  remained  there  un- 
til the  following  April,  when  she  went  to  re- 
side with  Mr.  and  Mrs.  Babb,  to  whom  she 
devised  the  greater  part  of  her  estate  by  the 
will  of  April,  1915.  The  contestants  offered 
proof  that  they  performed  their  part  of  the 
contract  by  taking  care  of  Mr.  McGinley  un- 
til his  death  in  September,  1914,  and  of  Mrs. 
McGinley  until  she  left  them,  without  any 
reason  or  cause,  about  three  weeks  prior  to 
her  death. 

This  and  other  testimony  and  circumstanc- 
es in  the  case  tend,  as  the  contestants  claim, 
to  show  the  existence  of  the  alleged  con- 
tract, and  that  the  wills  of  1914  were  made 
by  the  McGinleys  to  carry  into  effect  the 
agreement  made  between  them  and  their 
nieces.  Nyce's  testimony,  if  believed,  diows, 
not  a  promise  by  the  McGinleys  to  make 
wills  in  the  future,  but  that  "Susan  and  I 
have  agreed  to  make  wills,  and  we  went  out 
to  see  Pat  Breen  and  we  had  him  draw  the 
wills."  The  wills  were  produced  and  Mr. 
Nyce  read  them.  Mr.  McGinley  repeated  the 
contract  which  had  been  made,  and  gave  the 
reasons  for  making  it,  saying: 

"The  girls  have  left  their  homes  and  came  to 
OS  to  take  care  of  us.  Tou  see,  there  ia  Susan, 
she  can't  do  anything,  she  is  helpless,  and  I 
haven't  been  able  to  do  anything  for  quite  a 
long  time,  and  Susan  and  I  have  agreed  to 
give  th(>  girls  everything  that  was  left,  if  they 


would  stay  with  us  and  take  care  of  us  until 
we  are  gone ;  the  girls  have  been  kind  to  ua" 

This  statement  by  McGinley  would  justify 
the  Jury  in  finding  that  the  nieces  had 
agreed  to  the  terms  of  the  contract  and  had 
then  left  their  home^  and  were  performing 
their  part  of  It.  The  conversation  was  in  the 
presence  of  Mrs.  McGinley,  who  consented  to 
what  was  said  by  her  husband  and  repeated 
the  terms  of  the  contract  three  or  four  times. 
Mrs.  Rehrer,  one  of  the  nieces,  was  also  pres- 
ent at  this  interview,  acquiesced  in  the  con- 
tract as  stated  by  the  McGinleys,  and,  at 
Mr.  McGlnley's  suggestion,  went  upstairs 
and  got  the  wills  for  Mr.  Nyce,  showing  that 
she  knew  of  the  wills  and  had  them  in  her 
possession  or  knew  where  they  were  kept. 
Mrs.  McGinley,  after  the  death  of  her  hus- 
band, confirmed  the  existence  and  terms  of 
the  contract  by  admitting,  shortly  before  her 
death,  that  the  nieces  would  have  everything 
after  she  was  dead. 

This  proceeding  was  conducted  by  the  par- 
ties, and  the  question  as  to  the  validity  of 
the  alleged  contract  was  determined  by  the 
court  below,  on  the  theory  that  the  contract, 
if  valid,  could  be  set  up  to  defeat  the  pro- 
bate of  the  will  of  1915.  In  conformity  with 
our  practice,  we  have  disposed  of  the  appeal 
in  like  manner,  and  hence  it  Is  sufficient  to 
say  that  we  think  the  evidence  Justifies 
awarding  an  Issue  to  determine  whether  an 
Irrevocable  contract  was  made  between  the 
parties  as  alleged  by  the  contestants.  The 
competency  of  the  witnesses  and  of  the  tes- 
timony offered  in  the  court  below  is  not  rais- 
ed upon  this  record,  and  we  express  no  opin- 
ion in  regard  to  it,  whether  on  the  applica- 
tion for  or  on  the  trial  of  the  issue. 

BV>r  the  reasons  stated,  the  decree  is  re- 
versed and  an  issue  is  awarded. 


(»7  Pa.  473) 
ZBNZIL  et  al.  v.  DELAWARE,  L.  ft  W.  R. 
CO. 

(Supreme  Court   of  Pennsylvania.     April  16, 
1917.) 

1.  Railboadb  4=933S<6)  —  Nkouqerok  —  Sio- 

NAI.8. 

The  object  of  signals  Is  to  give  notice  that 
a  train  ia  about  to  occupy  the  track,  and  a 
failure  to  give  such  signals  is  immaterial  where 
one  in  daylight  walks  into  a  train  after  the  en- 
gine has  passed. 

2.  RAII.BOADS  e=s>346(l)— AOOIDERT  AT  CKOBS- 
IRG— BUBDEN  OF  PbOOV. 

Plaintiff  in  an  action  for  injury  from  a  train 
at  a  permissive  crossing  had  the  burden  of  show- 
ing that  the  accident  happened  at  such  crossing. 
S.  Raii,boadb     18=3350(1)— Accideht—Pbbicis- 

SIVK    CBOSSINO— EVIDENOB. 

In  such  case,  where  plaintiff's  contradictory 
and  conflicting  testimony  presented  no  question 
as  to  whether  the  injury  occurred  at  such  per- 
missive crossing,  so  that  a  nonsuit  was  prop- 
erly granted. 

4.  Neouoencb    ^=>136(7)   —   C!ontbibutobt 
Negligence— QuEsnoK  roa  Jubt. 

Where  the  burden  of  proving  plaintiff's  neg- 
ligence is  upon  defendant,  it  is  the  province  of 


9Tor  otiwr  e«M«  M»  uiM  topis  and  KBT-NDUBER  in  all  K«7-Numbered  Digeits  and  Indaxw 


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101  ATI.ANTIO  REPORTBB 


(Pa. 


the  jury  to  pass  upon  the  conflictiDg  statements 

in  plaintiff's  own  testimony. 

6b  RAII.B0AD8      «=a350(14)— Oito8siNO»— GAsa 

AS   TO    CHILDBEN. 

In  an  action  for  personal  injury  to  a  boy 
nine  years  of  age  fron\  defendant's  train,  his 
contribatory  negligence  was,  by  reason  of  his 
age,  a  question  for  tiie  jury. 

Appeal  from  Court  of  Gcniimon  Pleas, 
Lacliawanna  County. 

Trespass  by  Stephen  Zenzll,  a  minor,  by 
bl3  father  and  next  friend,  Peter  Zenzll,  and 
by  Peter  Zenzll,  In  his  own  right,  against 
the  Delaware,  Lackawanna  &  Western  Rail- 
road Company,  to  recover  damages  for  per- 
sonal injury.  From  an  order  refusing  to  take 
off  a  compulsory  nonsuit,  plaintiffs  appeal. 
Order  afSrmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZEOt,  and  WAIj- 
UNG,  JJ. 

Thomas  P.  Duffy  and  Joseph  F.  Gllroy, 
both  of  Scranton,  for  appellants.  J.  H.  Oli- 
ver, D.  R.  Reese,  and  Warren,  Kuapp,  O'Mal- 
ley  ft  Hill,  all  of  Scranton,  for  appellee. 

WALLING,  J.  This  suit  is  for  injuries 
caused  to  a  <dmd  by  a  freight  train. 

Defendant's  double  track  railway  extends 
in  a  northerly  and  southerly  direction  through 
Dalton  borough  in  Lackawanna  county.  The 
station  is  on  the  east  side  of  the  easterly  or 
north-bound  track;  opposite  It,  on  the  west 
side  of  the  westerly  or  south-bound  track, 
a  side  track  branches  therefrom  and  extends 
southerly  toward  Scranton,  so  that  to  the 
south  of  the  station  there  are  three  parallel 
tracks.  A  short  distance  to  the  west  there 
is  a  residence  street,  parallel  with  the  rail- 
way, the  lots  on  the  east  side  of  which  ex- 
tend back  to  the  right  of  way.  One  of  the 
lots,  known  as  the  Von  Storcb  lot,  is  about 
300  feet  south  of  the  station,  and  adjoining 
this  lot  on  the  north  is  the  Ives  lot  At  the 
time  in  question  there  was  a  path  leading 
from  said  street  diagonally  across  the  Von 
Storch  lot  to  the  right  of  way  at  the  south- 
east comer  of  the  Ives  lot,  where  there  was 
a  board  across  the  railroad  ditch  and  there 
pedestrians  were  accustomed  to  cross  the 
tracks,  as  a  short  cut  In  going  to  and  from 
the  station.  It  appears  to  have  been  so  used 
sufficiently  to  be  regarded  as  a  permissive 
crossing.  The  Ives  lot  being  higher  than  the 
tr&dta,  was  graded  down  in  the  form  of  a 
terrace,  and  there,  about  25  or  30  feet  north 
of  the  Von  Storch  lot,  steps  led  down  to  the 
right  of  way,  but  the  evidence  failed  to  show 
that  people  were  in  the  habit  of  crossing  the 
tra<^  at  that  point.  In  other  words,  the 
evidence  did  not  tend  to  show  two  permissive 
crossings.  Peter  Zenzll  was  In  defendant's 
<>mploy  as  a  track  hand  and  lived  near  the 
station  on  the  east  side  of  the  tracks.  On 
August  13,  1913,  his  son,  the  plaintiff,  then 
nine  years  of  age,  was  out  with  three  other 
boys  Utghtly  older  than  himself,  and  early  in 


the  afternoon  they  were  on  the  west  side, 
where  for  a  time  they  watched  a  ball  game 
and  then  came  to  the  railroad.  The  evidence 
is  not  clear  whether  they  came  by  the  path 
or  by  the  public  road  to  the  station.  At 
any  event  they  then  went  up  on  the  rear 
end  of  the  Ives  lot  where  a  man  was  cutting 
or  trimming  a  tree;  and  the  boys  played  tag 
there  and  possibly  on  the  right  of  way  as 
there  was  no  fence  between.  It  was  then 
after  1:30  p.  m.,  and  a  north-bound  passenger 
train  came  and  stopped  at  the  station.  The 
evidence  tends  to  show  that  the  boys  were 
then  on  or  near  the  side  track  waiting  for 
the  train  to  move  so  they  could  cross  the 
tracks  In  the  direction  of  plaintiff's  home, 
when  a  long  freight  train,  with  an  engine  at 
each  end,  came  up  the  grade  from  the  north 
on  the  west  main  track,  and  as  it  was  pass- 
ing plaintiff's  clothes  were  caught  by  one  of 
the  cars  and  he  was  thrown  so  that  his  left 
foot  was  seriously  Injured,  seemingly  under  a 
car  wheel.  His  testimony  Is  that  he  was 
standing  on  the  ends  of  the  ties  of  the  sid- 
ing next  to  said  track,  and  was  hit  by  the 
train,  and  that  as  he  states  "it  pulled  me 
down  a  little  ways."  He  does  not  say  nor 
seem  to  remember  what  part  of  the  train 
struck  him ;  but  William  Doggett,  one  of  the 
boys  with  plaintiff,  and  the  only  other  wit- 
ness of  the  accident  who  was  called,  says 
in  substance  that  there  were  50  to  60  cars  in 
the  freight  train,  and  all  the  boys  were  play- 
ing on  the  bank  until  about  one-third  of  the 
train  had  gone  by,  and  that  the  accident  hap- 
pened after  about  20  cars  had  passed.  He 
also  locates  the  place  of  the  accident  a  con- 
siderable distance,  probably  60  to  100  feet, 
north  of  the  so-called  permissive  crossing. 
One  part  of  plaintlfTs  own  testimony  would 
indicate  that  he  was  hurt  at  or  near  audi 
crossing,  while  other  parts  of  his  evidence 
locate  the  place  of  accident  at  points  to  the 
north  thereof.  And  his  testimony  is  con- 
fused and  contradictory.  There  is  negative 
evldenoe  that  no  warning  was  given  of  the 
approach  of  the  freight  train,  except  that  it 
made  some  noise  coming  up  the  grade.  The 
only  evidence  of  defendant's  negligence  is 
that  tending  to  show  absence  of  due  warning 
of  the  train's  approach. 

This  appeal  waa  taken  from  an  order  of 
the  trial  court  discharging  the  rule  to  tako 
off  the  compulsory  nonsuit  that  had  been 
granted  at  the  conclusion  of  plaintUTs  tes- 
timony. An  examination  of  the  record  falls 
to  disclose  sufficient  evidence  to  sustain  a 
verdict  against  the  defendant. 

[1-8]  The  evidence  of  William  Doggett, 
that  part  of  the  train  had  passed  before  tbe 
accident,  finds  support  in  the  circumstances 
and  is  not  contradicted.  If  true  it  Is  diS- 
cult  to  see  bow  the  alleged  lack  of  wamlss 
contributed  to  the  accident.  The  object  of 
signals  is  to  give  notice  that  the  train  Is 
about  to  occupy  the  track;  bat  when  the  en- 


»For  otbar  um*  ■••  Htm*  topi-;  and  KBY-NUUBEIR  la  all  Ker-Numberad  DlCMts  «nd  Inimm 


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WOOD  T.  CARSON 


811 


gine  has  passed  and  the  cars  are  following 
one  after  another  It  is  the  best  possible  evi- 
dence that  the  company  is  occupying  its 
track.  The  alleged  lack  of  formal  signals  is 
not  material  in  the  case  of  one  who  in  day- 
light walks  into  a  train  that  is  and  for  some 
time  has  been  passing  before  him.  And 
aside  from  that  the  evidence  would  not  sus- 
tain a  finding  that  plaintiff  was  hurt  at  the 
permissive  crossing.  His  own  evidence  as  to 
that  being  conflicting  and  that  of  his  own  wit- 
ness being  directly  to  the  contrary,  the  court 
was  not  bound  to  submit  the  question  to  the 
jury.  This  principle  is  stated  and  the  au- 
thorities in  support  thereof  cited  in  the  opin- 
ion of  Mr.  Justice  Potter,  filed  at  the  present 
term  of  this  court,  in  the  case  of  Magier  v. 
Philadelphia  ft  Reading  Railway  Co.,  101 
Atl.  731. 

In  our  case  the  burden  of  proof  was  upon 
the  plaintiff  to  establish,  inter  alia,  the  fact 
that  the  accident  happened  at  the  i)ermls- 
slve  crossing,  and,  as  his  own  testimony  on 
that  question  was  so  contradictory  and  con- 
flicting as  to  present  to  the  Jury  no  basis  for 
a  finding,  except  a  mere  guess,  the  nonsuit 
was  properly  granted.  See  Mulligan  v.  !«- 
high  Traction  Co.,  241  Pa.  139,  88  Aa  318, 
and  Cawl^  v.  Balto.  &  Ohio  R.  R.  Co.,  44 
Pa.  Super.  Ct.  340. 

[4]  In  certain  cases  it  is  the  province  of 
the  Jury  to  pass  upon  conflicting  statements 
in  plaintiff's  own  testimony.  Ely  v.  Pitts- 
burgh, Cincinnati,  Chicago  &  St.  Louis  Ry., 
158  Pa.  233,  27  Atl.  970;  Strnder  v.  Monroe 
County,  202  Pa.  626,  51  AU.  1100;  Sloan  v. 
Philadelphia  &  Reading  Ry.  Co.,  225  Pa.  52, 
73  Atl.  1069.  But  in  those  cases  the  conflict- 
ing statements  were  on  the  question  of  con- 
tributory negligence  where  the  burden  of 
proof  was  on  the  defendant.  In  Ely  v.  Pitts- 
burgh, Cincinnati,  Chicago  &  St.  Louis  Ry., 
158  Pa.  238.  27  Ati.  971,  supra,  Mr.  Justice 
Mitchell  in  delivering  the  opinion  of  this 
court  says: 

"Had  the  testimony  referred  to  a  subject  as 
to  which  the  burden  of  proof  was  on  the  plain- 
tiff, the  resnlt  might  have  been  different,  for  the 
court  ia  not  entitled  to  submit  evidence  which 
will  merely  enable  a  jury  to  guess  at  a  fact  in 
favor  of  a  party  who  is  bound  to  prove  it." 

((]  This  case  is  not  ruled  by  Piepke  t. 
Philadelphia  &  Beading  Ry.  Co.,  242  Pa. 
321,  89  Atl.  124;  there  an  engine  and  tender 
were  running  backward  upon  a  public  street, 
at  or  near  a  crossing  where  small  children 
were  standing  upon  the  track,  and  no  sig- 
nal was  given  of  the  approach  of  the  engine 
or  effort  made  to  avoid  the  accident,  and  this 
court  held  that  the  case  was  for  the  jury. 
Of  course  children  are  entitled  to  greater 
protection  than  adults,  and  it  is  the  duty  of 
those  in  charge  of  trains  to  avoid  wanton  or 
reckless  injury  even  to  trespassers,  yet  there 
is  no  allegation  or  evidence  of  such  injury 
in  this  case,  and  it  is  not  shown  that  those 
in  charge  of  the  train  saw  the  boy  before  the 


unfortunate  accident  On  account  of  plain- 
tilTs  age  the  question  of  contributory  negli- 
gence would  be  for  the  jury. 

The  assignment  of  error  ia  overruled,  and 
the  order  discharging  the  rule  to  take  off" 
the  nonsuit  is  affirmed. 


(S7  Pa.  'M) 
WOOD  V.  CARSON. 

(Supreme   Court   of    Pennsylvania.     April  10, 
1017.) 

1.  LANDLOSn  ARO  TENANT  4=s»231(8)— AonON 

FOR  Bent— Directed  Verdict. 

In  an  action  for  rent,  defended  on  the 
ground  of  the  lessor's  breach  of  a  contemporane- 
ous parol  agreement  to  make  certain  repairs, 
and  that  the  premises  contained  certain  wells, 
held,  on  the  evidence,  that  a  verdict  for  plaintiff 
was  properly  directed. 

2.  Landlord  and  Tenant  «=>231(2)— Lcasx 
— bvidencb. 

Where  the  lessee,  when  sued  for  rent,  failed 
to  establish  the  lessor's  alleged  contemporaneous 
contract  for  repair  and  his  representations  of  a 
proper  water  supply,  the  exclusion  of  evidence 
as  to  the  consequences  of  the  alleged  breadi  was 
proper. 

3.  Landlord    and    Tenant    «=»150(1)— Be- 
PAiBs— Implied  Covenant. 

Without  an  express  agreement  there  is  no 
implied  obligation  on  the  landlord  to  repair  the 
demised  premises. 

4.  Landlord    and    Tenant    ^=9125(2)— Im- 
plied Covenants— Fitness  for  Use. 

Without  an  express  agreement  the  lessor 
does  not  impliedly  undertake  that  the  premises 
are  fit  for  the  purposes  for  which  they  are  leased. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  for  rent  by  John  S.  Wood 
against  John  W.  Carson.  Directed  verdict 
for  plaintiff  for  $1,877.60  and  judgment  there- 
on, and  defendant  appeals.    Affirmed. 

Argued  before  BBOWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

Robert  Malr,  Wayne  P.  Rambo,  and  Or- 
mon!d  Rambo,  all  of  Philadelphia,  for  appel- 
lant. Frank  B.  Shattuck,  of  Philadelphia,  for 
appellee. 

MOSCHZISKER,  J.  May  13,  1899,  plain- 
tiff and  defendant  entered  into  a  written  con- 
tract whereby  the  latter  leased  from  the  for- 
mer a  lot  of  ground  with  the  buildings  there- 
oa  for  a  term  of  five  years  from  June  1, 1899, 
at  an  annual  rent  of  $1,600,  payable  in  equal 
monthly  installments.  Defendant  remained 
in  possession  of  the  demised  premises  until 
August  31,  1901,  when,  having  paid  in  full 
to  that  date,  he  removed  therefrom.  The 
property  remained  untenanted  for  about 
eight  months,  and  the  present  action  was 
brought  to  recover  the  rent  which  accrued 
during  that  period.  At  trial  binding  instruc- 
tions were  given  for  plaintiff,  who  recovered 
a  verdict  for  $1,877.60.  Judgment  was  enter- 
ed accordingly,  and  the  tenant  has  appealed. 

[1]  Defendant,  who  is  in  the  dye  business, 
alleges  that,  prior  to  and  contemporaneously 


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101  ATLANTIC  RBPORTEB 


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with  tbe  execDtlon  of  the  lease  sued  upon,  he 
and  the  plaintiff  entered  Into  a  verbal  con- 
tract, whereby  tbe  latter  agreed  to  make 
certain  repairs  to  the  demised  property,  so  as 
to  render  It  soitable  for  use  as  a  dyebouse; 
farther  tbat  plaintiff  represented  to  him 
tbere  were  five  good  wells  of  water  on  the 
premises,  whlcb  would  furnish  a  supply  am- 
ple for  the  neeMs  and  requirements  of  defend- 
ant's business;  that  the  agreement  and  rep- 
resentations In  question  Induced  defendant 
to  sign  the  lease,  but  tbat  the  plaintiff  failed 
to  make  the  promised  repairs,  and,  Instead  of 
five  good  wells  of  water,  there  was  but  one, 
which  did  not  meet  defendant's  needs  and 
requirements;  finally,  that,  after  repeated 
demands  upon  plaintiff,  the  latter  refused 
either  to  make  the  repairs  called  for  in  the 
prior  and  contemporaneous  parol  agreement, 
or  to  do  anything  toward  furnishing  tbe  quan- 
tity of  water  necessary  for  defendant's  dye- 
house;  and  that,  for  these  reasons,  be  was 
obliged  to  and  did  remoye  from  the  leased 
premises. 

At  trial,  however,  the  defendant  faileid  to 
prove  the  grounds  upon  whldi  he  relied.  In 
the  first  place,  he  admitted  that  the  lease 
was  drafted  by  him,  and  not  by  the  plnintlff ; 
but  he  gave  no  explanation  as  to  why  the 
alleged  parol  agreement  ha'd  been  omitted 
therefrom,  the  only  mention  of  repairs  in  the 
written  contract  being  an  express  provision 
that  the  lessee  sbould  keep  the  property  in 
good  OMidltlan,  and  so  deliver  it  to  the  lessor 
at  tbe  end  of  the  term,  "reasonable  wear  and 
tear  excepted."  Next,  while  the  defendant 
produced  testimony  to  show  that  weeks  pri- 
or to  the  execution  of  the  lease,  on  an  occa- 
sion wlien  he  viewed  the  buildings,  there  had 
been  some  conversation  concerning  the  re- 
pairs which  be  desired,  should  be  rent  the 
property,  yet  he  falleU  to  show  that  any  con- 
tract to  make  these  repairs  was  entered  into 
either  at  tbat  time  or  when  the  lease  was 
subsequently  executed  and  delivered.  As  to 
what  took  place  at  the  latter  date,  the  tes- 
timony Is  not  only  too  vague  and  indefinite 
to  prove  a  contract  to  make  any  certain  re- 
pairs, but  defendant  'did  not  even  offer  to 
prove  that  the  plaintiff,  John  S.  Wood  (then 
alive,  but  now  deceased),  was  actually  pres- 
ent at  tbe  time;  furthermore,  be  failed  to  show 
tbat  the  plaintiff's  son,  James  L.  Wood,  who 
he  testified  brought  the  lease  to  him  already 
executed  by  the  lessor,  was  duly  authorized 
to  enter  into  a  parol  contract  such  as  the 
one  alleged,  on  behalf  of  his  father. 

When  we  come  to  consider  the  subject  of 
the  water  supply,  the  defendant's  case  is 
even  weaker;  for  it  appears  that,  while  there 
was  more  or  less  prior  talk  concerning  the 
wdls,  yet  at  the  time  of  tbe  execution  and 
delivery  of  the  lease  all  that  was  said  upon 
tbe  matter  was  this :  Tbe  defendant  mentlon- 
efd  to  the  plaintiff's  son,  "He  [the  lessor]  as- 
sures us  that  we  are  getting  a  good  plenty 
of  water,"  and  James  I*  Wood  replied.  "Yes, 


sir;  tbere  are  five  wells  of  good  water  here, 
and  yon  will  have  a  sufficiency."  The  lease 
contains  no  mention  of  the  water  supply,  and 
there  was  no  testimcmy  to  show  that  the  de- 
fendant at  any  time  informed  tbe  plaintiff 
how  much  he  required  for  bis  business,  or 
that  tbe  latter  ever  in  any  manner  represent- 
ed or  contracted  to  give  him  any  fixed  quan- 
tity. 

James  L.  Wood,  who  appeared  as  a  wit- 
ness for  the  plaintiff,  admitted  that  his  father 
bad  agreed  to  certain  enumerated  repairs,  but 
stated  all  these  had  been  made,  and  we  find 
no  contradiction  of  this  testimony;  more- 
over, Mr.  Wood  did  not  say  tbere  had  been  a 
contract  for  any  repairs  whatever,  but  he 
designated  tbe  result  of  tbe  varlons  conver- 
sations on  tbat  subject  simply  as  an  "under- 
standing." In  addition  we  find  nothing  in 
this  witness'  testimony  from  which  It  appears 
that  be  was  authorized  by  bis  father  to  enter 
into  contracts  on  the  latter's  behalf;  nor 
are  there  any  other  proofs  in  tbe  case  which 
would  Justify  a  finding  to  that  effect. 

[2]  Under  all  tbe  circumstances,  the  trial 
Judge  committed  no  error  in  refusing  to  i)ep- 
mlt  testimony  concerning  the  consequences  of 
the  nonfulfillment  of  tbe  alleged  contem- 
poraneous contract  for  repairs  or  of  the  lack 
of  a  proper  water  supply,  nor  did  he  err  In 
striking  out  evidence  concerning  conversa- 
tions on  these  subjects  alleged  to  have  been 
held  some  weeks  prior  to  the  execution  and 
delivery  of  the  lease  or  months  subsequent 
to  that  date.  We  have,  however,  considered 
all  the  printed  testimony,  stricken  out  or  oth- 
erwise, and  also  the  offers  refused  ;  and,  aft- 
er so  doing,  we  see  no  reversible  error  In 
the  ultimate  conclusion  reached  by  the  court 
below. 

The  authorities  relied  upon  by  the  defend- 
ant in  no  sense  rule  here.  Wolfe  v.  Arrott, 
109  Pa.  473,  477,  1  Atl.  333,  stands  on  its  own 
facts.  There  the  landlord  not  only  assured 
the  tenant  that  certain  conditions  existed, 
but  "guaranteed"  such  to  be  tbe  case,  and. 
"in  consideration  of  these  assurances  and 
guaranty,"  the  tenant  signed  tbe  lease. 
Then  again  in  that  case  it  was  not  held  that 
the  lessee  was  entitled  to  remove  from  the 
premises  and  stop  paying  rent,  but  only  that 
he  bad  a  right  to  deduct  from  the  rent  due 
tbe  amount  which,  after  demands  upon  the 
landlord  to  make  good  his  guaranty,  he  bad 
been  obliged  to  pay  out  in  order  to  render 
the  leased  premises  habitable.  The  only  sub- 
sequent report  In  which  we  find  Wolfe  v.  Ar- 
rott mentioned  is  Moore  v.  Gardiner,  161  Pa. 
175,  177,  28  AU.  1018,  where  tbe  former  case 
is  distinguished.  In  the  latter  we  affirmed  a 
judgment  for  the  plaintiff  under  circumstanc- 
es somewhat  like  those  at  bar,  saying  that 
it  was  not  of  "any  avail  to  allege  certain  ver- 
bal communications  between  the  parties  pri- 
or to  and  at  the  time  of  the  execution  of  the 
lease,"  since  "they  were  not  Incorporated 
Into  the  lease,  and  tbere  are  no  facts  In  evl- 


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STONE  T.  DELAWARE,  L.  &  W.  R.  CO. 


813 


dence  which  would  Justify  the  alteration  of 
the  lease  so  as  to  include  them." 

In  Smith  t.  Harvey,  4  Pa.  Saper.  Ct  377, 
380,  relied  npon  by  the  appellant,  the  ten- 
ant had  actually  refused  to  sign  the  lease, 
on  the  ground  that  there  was  no  provision 
contained  therein  as  to  the  certainty  of  the 
water  supply ;  whereupon  the  landlord  said, 
"We  will  consider  it  the  same  as  though  it 
was  in  there,  and  I  promise  you  that  any 
shortage  of  water  shall  be  remedied  at  once," 
which  assurance  and  promise  then  and  there 
induced  the  defendant  to  sign. 

[3, 4]  There  is  no  sufficient  evidence  at  bar 
to  take  the  present  case  out  of  the  general 
rule  stated  by  Mr.  Justice  Sharswood  In 
Moore  v.  Weber,  71  Pa.  429,  432,  10  Am.  R^. 
708,  that: 

"The  lessee's  eyes  are  his  bargain ;  he  is  bound 
to  examine  the  premises  he  rents,  and  secure 
himself  by  covenants  to  repair." 

Or,  as  further  stated  by  President  Judge 
Rice,  In  Itavis  v.  Pierce,  52  Pa.  Super.  Ct. 
«15,  617: 

"In  the  absence  of  an  express  agreement,  there 
is  no  implied  obligation  on  the  landlord  to  re- 
pair demised  premises,  nor  does  he  impliedly  un- 
dertake that  they  are  fit  for  the  purposes  for 
which  they  are  rented." 

The  assignments  of  error  are  all  overruled, 
And  the  Judgment  Is  affirmed. 


<2ST  Pa.  tBfi 
STONE  V.  DELAWARE,  L.  &  W.  R.  CO. 

(Sapreme   Court   of  Pennsylvania.     April  16, 
1917.) 

1.  Eminent   Dovair   €=3l34  —  Mbasubk   of 
Damaoes— Pbospectivk  Use. 

In  an  action  for  damages  for  land  condemn- 
ed, the  jury,  in  ascertaining  the  measure  of 
damages,  may  consider  not  only  the  present  use 
.and  condition  of  the  property,  but  that  to  which 
it  was  adapted  at  the  time  of  the  talcing,  and  its 
present  value  for  any  future  use  that  could  rea- 
sonably be  anticipated,  excluding  speculative 
values. 

2.  Eminent  Domain   «=»222(5)  —  DAMAOEa— 
Chabgh 

A  charge  that  the  juiy  might  consider  differ- 
ent elements  of  damages  in  respect  to  the  land 
condemned,  such  as  inconvenience  in  getting 
from  one  part  of  the  farm  to  another,  the  de- 
struction of  a  spring,  damage  to  an  orchard, 
and  the  cutting  off  of  the  view,  and  so  add  a 
total  of  the  entire  amount  of  damages  to  the 
farm  as  a  whole,  was  not  objectionable  as  per- 
mitting the  jury  to  fix  the  specific  sum  for  each 
element  of  damage  separately,  and  to  aggregate 
the  several  amounts  in  their  verdict. 
S.  Emikent  Domain  ®=»  141(1)  —  Damages — 

EV1DE^•CE. 

Such  several  elements  were  admissible  as  af- 
fecting the  market  value  of  the  land,  and  not 
otherwise. 

4.  Eminent    Domain    €=»255— Damages— In - 
STBCCTioN— Appeal. 

Where  defendant  did  not  request  a  more  ex- 
tended charge  as  to  the  elements  of  damages  for 
plaintiffs  condemned  land,  or  submit  points  for 
specific  instructions,  it  could  not  complain  of  a 
failure  to  give  an  adequate  instruction. 


S.  Eminent  Domain  «=3222(1)  —  Damages — 

Adequacy  of  Instbtjction. 
Where  the  court  enumerated  the  contentions 
and  summarized  the  testimony  of  experts  on  the 
question  of  damages,  its  instruction  for  the  jury 
to  find  damages  to  the  plaintiff's  farm  in  its  en- 
tirety at  the  time  of  the  taking,  and  referring  to 
the  credibility  of  the  witnesses,  leaving  the  de- 
termination of  the  amount  of  the  verdict  to  th« 
jury,  was  not,  as  a  whole,  inadequate. 
0.  Eminent  Domain  9s>203(4)  —  Damages — 

Rental  Value. 
While  the  rental  value  of  property  may  be 
considered  in  forming  an  opinion  as  to  its  mar- 
ket value,  where  it  is  adaptable  only  for  a  cer- 
tain purpose,  evidence  as  to  its  rental  value  is 
inadmissible  where  it  is  adaptable  for  a  number 
of  purposes. 

7.  Eminent    Domain    <8=>203(4)— Evidence— 
Cboss-Examination— Rental  Value. 

Where  plaintiff  and  another  testified  that  the 
value  of  condemned  property  for  farming  pur- 
poses did  not  represent  its  actual  value,  and 
that  it  had  a  greater  value  for  other  purposes 
beyond  that  of  the  ordinary  farm,  the  refusal 
to  permit  defendant  on  cross-examination  to 
question  the  witnesses  as  to  the  rental  value 
of  the  property  if  used  exclusively  for  farming 
purposes  was  not  reversible  error. 

8.  Trial  i3=>64r— Evidence  in  Reply— Scope 
—Value— Sales  and  Selling  Pbices. 

Where  defendant  was  permitted  without  ob- 
jection to  cross-examine  plaintiff's  witnesses  as 
to  other  sales  of  land  In  the  vicinity  of  plaintiffs 
condemned  land,  plaintiff  was  properly  allowed 
on  redirect  examination  of  bis  witnesses  and  <h> 
cross-examination  of  defendant's  witnesses  to 
ask  for  the  selling  prices  of  other  similar  land 
in  the  vicinity. 

9.  Evidence  «=:»155(1)— Entibe  Transaction. 

Where  a  witness  testifies  to  part  of  a  trans- 
action, the  opposing  party  may  insist  upon  the 
complete  transaction  being  shown,  even  though 
such  evidence  be  otherwise  inadmissible. 

Appeal  from  Court  of  Common  Pleas, 
Lackawanna  County. 

Action  by  John  L.  Stone  against  the  Dela- 
ware, Lackawanna  &  Western  Railroad  Com- 
pany. Verdict  for  plaintiff  for  $13,865,  and 
judgment  thereon,  and  defendant  appeals. 
Affirmed. 

Argued  before  BROWN,  O.  J.,  and  POT- 
TER, STEWART,  FRAZER,  and  WAL- 
LING, JJ. 

J.  H.  Oliver,  H.  A.  Knapp,  and  D.  R.  Reese, 
all  of  Scranton,  for  appellant.  John  P.  Kel- 
ly and  A.  D.  Dean,  botli  of  Scranton,  for  ap- 
pellefe 

FRAZER,  J.  Defendant  appeals  from  the 
Judgment  of  the  court  of  common  pleas  en- 
tered on  a  verdict  for  plaintiff  awarding  the 
sum  of  $13,865  damages  for  land  taken,  or  in- 
jured, by  the  relocation,  straightening,  and 
widening  of  defendant's  right  of  way.  The 
errors  assigned  are  to  the  charge  of  the  court, 
and  various  rulings  on  the  admission  and 
rejection  of  testimony  touching  the  question 
of  damages. 

[1]  The  first  assignment  of  error  complains 
that  the  portion  of  the  charge  quoted  was 
erroueous  in  that  it  permitted  the  Jury  to  fix 
the  damages  not  upon  the  value  of  the 
property  for  the  purposes  for  which  it  was 


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actually  available  at  tbe  time  of  the  appropri- 
ation, but  upon  the  value  Incident  to  the 
possible  future  growth  of  the  community. 
The  trial  Judge  stated  In  part  that: 

"The  witnesses  gave  their  reasons  for  arriving 
at  the  conclusion  that  this  was  not  only  a  very 
valuable  piece  of  land  as  a  farm;  that  it  was 
available  for  town  lots  or  plots  in  larger  or 
■mailer  tracts;  that  within  the  last  25  or  SO 
years  a  good  many  plots  of  land  have  been 
laid  out  and  have  been  sold  at  various  prices, 
and  basing  their  opinions  upon  the  sale  of  lands 
thereabouts  and  of  the  possible  future  growth 
of  the  community,  they  arrived  »t  the  figures  to 
which  they  have  testified.  This  is  a  proper  way 
of  arriving  at  a  conclusion  under  the  facts  of 
this  ease,  and  it  is  for  you  to  take  into  consid- 
eration their  accuracy  and  whether  their  opin- 
ions are  entitled  to  the  weight  plaintiff  asks  to 
be  given  to  them." 

The  Jurors,  In  our  opinion,  were  not  mis- 
led by  this  instruction.  The  rule  In  ascer- 
taining the  measure  of  damages  is  that  the 
Jury  may  consider  not  only  the  present  use 
and  condition  of  the  property,  but  such  use 
to  which  It  was  then  adapted,  and  prospec- 
tive advantage  at  the  time  attaching  to  it  a 
present  value,  or  any  purpose  to  which  it 
could  reasonably  be  anticipated  the  land 
would  In  the  future  be  applied,  excluding, 
however,  speculative  values.  Marine  Coal 
Co.  V.  Pittsburgh,  McKeesport  4  Xoughio- 
gheny  R.  R.  Co.,  246  Pa.  478,  92  Atl.  «t>8. 
The  instmcOon  quoted  is  not  open  to  defend- 
ant's objection  that  the  Jury  was  permitted 
to  find  speculative  damages.  Plaintiff's  land 
was  suburban  property  and,  as  stated  in  the 
charge,  a  number  of  similar  tracts  in  the 
neighborhood  had  been  recently  plotted  and 
sold  as  building  lots.  The  possibility  of 
utilizing  the  land  in  question  for  this  pur- 
pose was  not  therefore  merely  remote  and 
speculative,  but  a  legitimate  prospect  for 
consideration  by  the  witnesses  and  the  Jury 
in  forming  their  opinion  as  to  its  present 
value. 

[2,3]  The  second  assignment  compla^s  of 
that  part  of  the  charge  which  permitted  the 
Jury,  in  fixing  the  damages  to  the  land  as  of 
the  time  of  the  taking,  to  consider  the  "dif- 
ferent elements  that  enter  into  the  damages, 
such  as  the  Inconvenience  In  getting  from 
one  part  of  the  farm  to  the  other,  the  de- 
struction of  the  living  spring,  the  damage  to 
the  orchard,  the  cutting  off  of  the  view,  the 
use  of  the  old  road  as  compared  with  the 
new  one  whidi  was  put  in  by  the  defendant 
company,  and  in  this  way  to  add  a  total,  as 
It  were,  of  the  entire  amount  of  damage 
caused  to  the  farm  taken  as  a  whole."  This 
Instruction  defendant  contends  authorized 
the  jury  to  ascertain  these  various  Items  of 
damage  separately,  and  arrive  at  a  total  by 
adding  them  together.  No  claim  is  made 
that  the  enumerated  elements  were  not  prop- 
er for  the  consideration  of  the  Jurors  In 
forming  their  estimate  of  the  damages,  but 
that  the  Instruction  permitted  the  fixing  of 
a  specific  simi  for  each  element  separately, 
and  by  aggregating  the  several  amounts 
reach  a  verdict    As  separate  items  the  evi- 


dence would  be  Improper.  The  several  ele- 
ments were  admissible,  however,  as  affect^ 
ing  the  market  value  of  the  land,  and  not 
otherwise.  Parry  v.  Cambria  &  Indiana  R. 
R.  Co.,  247  Pa.  169,  93  Atl.  336.  WhUe  the 
latter  portion  of  the  excerpt  standing  alone 
Is  misleading,  the  trial  Judge  begins  this  part 
of  the  charge  by  instructing  the  Jury  to  find 
the  damage  to  the  farm  in  its  entirety  as  it 
was  at  the  time  of  the  taking,  and  that  in  ar- 
riving at  the  extent  of  the  injury  they  might 
"take  into  consideration  the  different  ele- 
ments that  enter  into  the  damages,"  follow- 
ing this  statement  with  a  reference  to  the 
items  quoted  above.  In  view  of  the  intro- 
ductory statement  the  clause  as  a  whole  is 
not  open  to  criticism. 

[4, 6]  The  third  assignment  allies  the 
charge  as  a  whole  to  be  inadequate.  The 
court's  instructions  were  quite  brief  consid- 
ering the  amount  of  testimony  taken;  no  re- 
quest, however,  was  made  by  defendant  for 
a  more  extended  charge,  nor  were  points  sub- 
mitted asking  for  specific  instructions.  Con- 
sequently defendant  is  not  In  a  position  to 
complain  of  what'  was  not  said  to  the  Jury ; 
and  this  court  will  not  reverse  a  lower  court, 
under  such  circumstances,  unless  the  tend- 
ency of  the  charge  as  a  whole  was  to  the 
prejudice  of  the  party  against  whom  a  ver- 
dict was  returned,  and  was  not,  in  expres- 
sion or  tone,  a  fair  and  unbiased  Judicial 
presentation  of  the  case.  To  what  extent 
the  trial  Judge  will  go  Into  details  in  discuss- 
ing the  evidence  Is  necessarily  largely  within 
his  discretion.  BNjwler,  Executrix,  v.  Smith, 
153  Pa.  «td,  25  AtL  744 ;  Ensminger  v.  Hess, 
192  Pa.  432,  43  AU.  1001.  The  court  gave  a 
brief  outline  of  the  case,  enumerated  the  con- 
tentions of  each  party,  and  the  substance  of 
the  testimony  of  the  expert  witnesses  relat- 
ing to  the  question  of  damages,  instructed 
the  jurors  they  were  to  find  the  damage  to 
the  farm  in  its  entirety  as  It  was  at  the  time 
of  the  taking,  and  referred  briefly  to  the 
question  of  credibility  of  witnesses,  leaving 
to  the  jury  to  determine  the  amount  of  the 
verdict.  A  careful  consideration  of  the 
charge  as  a  whole  falls  to  show  such  inade- 
quacy as  to  require  the  granting  of  a  new 
trial. 

[6, 7]  The  fourth  and  ninth  assignments 
are  to  the  refusal  of  the  court  to  permit  de- 
fendant, on  cross-examination  of  plaintiff 
and  one  of  his  witnesses,  to  ask  the  rental 
value  of  plaintiffs  farm.  Both  witnesses 
testified  the  value  of  the  property  for  farm- 
ing purposes  did  not  represent  the  actual  val- 
ue of  tiie  land ;  that  it  had  a  greater  value 
for  other  purposes,  such  as  a  country  estate 
for  a  person  living  in  the  dty  desiring  a  sub- 
urban residence,  or  for  building  .sites,  and 
that  its  value  was  beyond  the  ordinary  farm 
Intended  exclusively  for  agricultural  pur- 
poses. One  witness  testified  he  was  nnable 
to  fix  the  value  as  farming  land,  and  did  not 
consider  it  from  that  point  of  view.  The 
witnesses  generally  were  asked  the  rental 


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8T0NB  ▼.  DELAWABE,  L,.  A  Wi  R.  00. 


816 


value,  or  tbe  amount  received  as  rent  from 
the  place  for  farming  purposes.  Wblle  the 
rental  value  might  be  a  proper  element  to 
consider  In  forming  an  opinion  of  tbe  mar- 
ket value  of  a  property  under  certain  condi- 
tions, or  In  a  case  where  Its  use  was  for  agri- 
cultural purposes  exclusively,  yet  the  facts 
of  this  case  and  tbe  testimony  all  tends  to 
show  the  property  was  adaptable  for  other 
purposes,  and  possessed  a  much  higher  value 
for  such  purposes  than  If  used  for  general 
farming.  In  fact  it  appears  land  was  too 
valuable  In  that  locality  to  be  a  paying  In- 
vestment from  the  standpoint  of  a  farmer. 
To  take  an  extreme  Illustration,  the  rental 
value  for  farming  purposes  of  a  piece  of  land 
In  the  heart  of  a  dty  would  be  of  little  value 
as  a  standard  for  fixlnsf  the  market  value  of 
the  property.  In  fact  the  Income  from  rents 
never  can  constitute  an  exclusive  standard 
for  that  purpose.  Forster  v.  Rogers  Bros., 
247  Pa.  64,  93  Atl.  26.  In  view  of  the  testi- 
mony in  the  present  case  the  action  of  the 
trial  judge  is  not  ground  for  reversal. 

[Jl  The  fifth  to  the  eighth  assignments,  In- 
clusive, refer  to  the  action  of  the  trial  Judge 
In  allowing  plaintlfF,  on  redirect  examination 
of  his  own  witnesses,  to  ask  them  to  state 
the  selling  prices  of  other  similar  properties 
In  the  neighborhood.  The  eleventh  to  tbe 
eighteenth  assignments,  inclusive,  complain 
of  the  action  of  the  court  in  permitting  plain- 
tiff, on  cross-examination  of  defendant's  wit- 
nesses, to  show  the  prices  received  for  par- 
ticular sales  of  real  estate  In  tbe  nelgbbor- 
bood.  These  assignments  raise  substantially 
tbe  flame  question  and  can  be  considered  to- 
gether. Tbe  court  below,  In  its  opinion  dis- 
charging tbe  rule  for  a  new  trial,  gave  as  a 
reason  for  its  action  in  admitting  such  testi- 
mony, that  defendant  first  introduced  the 
snbject-matter  by  proving  prices  obtained 
for  other  properties  in  the  neighborhood,  and 
having  brought  out  tbe  prices  paid  for  par- 
ticular pri^ertles,  plaintiff  was  entitled  to 
follow  that  line  of  examination  by  shovring 
additional  sales,  and  thus  place  before  the 
Jury  tbe  entire  Information  upon  which  the 
witness  based  his  opinion.  The  question  as 
to  when,  and  under  what  circumstances,  evi- 
dence of  the  prices  obtained  for  other  prop- 
erties in  tbe  neighborhood  Is  admissible  we 
have  considered  in  numerous  cases,  and  def- 
initely settled.  The  most  recent  expression 
of  opinion  on  the  subject  will  be  found  in 
Rea  ▼.  Pittsburg  &  ConnellsvlUe  R.  R.  Co., 
229  Pa.  106,  78  Atl.  73,  140  Am.  St.  Rep,  721, 
Roberts  v.  Philadelphia,  239  Pa.  3.^9,  86  Atl. 
026,  Girard  Trust  Co.  v.  Philadelphia,  248 
Pa.  179,  93  Atl.  947,  and  Llewellyn  v.  Sunny. 
side  Coal  Co.,  255  Pa.  291,  09  Atl.  869. 

In  tbe  first  case  cited,  following  the  gen- 
eral rule  that  while. a'  consideration  of  par- 
ticular sales  in  tbe  neighborhood  will  not  be 
allowed  to  be  offered  in  chief,  we  said  ques- 
tions regarding  such-  sales  are  proper  in 
cross-examination  to  test  the  accuracy  of  tbe 
witness,  and  tbe  extent  of  bis  knowledge; 


and,  following  the  principle  laid  down  in 
Davis  v.  Penna.  R.  R.  Co.,  215  Pa.  581,  64 
AtL  774,  7  Ann.  Cas.  681,  to  the  effect  that 
the  largest  latitude  should  be  allowed  on 
cross-examination  in  cases  of  this  class, 
state: 

"In  fact,  any  and  every  pertinent  question  may 
be  put  to  him  on  cross-examination  which  will 
enable  tbe  jury  to  place  a  fair  estimate  upon 
bis  testimony  as  to  tbe  damages  sustained"  by 
the  improvement  or  taking. 

In  the  Roberts  Case  we  held  that  witness- 
es testifying  on  behalf  of  plaintiff  to  values 
could  not  be  cross-examined  as  to  prices  at 
which  other  properties  sold  for  in  the  neigh- 
borhood, or  at  which  other  properties  were 
held  for  sale,  and  said: 

"It  is  admissible  on  cross-examination  of  a 
witness  to  inquire  wlicther  he  knew  of  certain 
sales  made  of  properties  in  the  neighborhood, 
only  because  the  value  of  th«  opinion  be  has  ex- 
pressed depends  in  a  large  degree  upon  his  fa- 
miliarity with  ruling  prices.  Except  as  he  have 
such  knowledge  he  is  not  qualified  to  testify ; 
the  greater  that  knowledge  tne  better  is  he  qual- 
ified to  speak,  and  the  greater  the  weight  of  his 
opinion.  To  introduce  tbe  prices,  however,  at 
which  the  properties  sold  is  to  suggest  to  the 
jury  a  comparison  which  they  are  unable  to 
make  in  order  to  determine  what  credit  they  are 
to  give  the  witness.  No  warrant  can  be  found 
in  any  of  our  cases  for  such  practice." 

The  defendant  relies  on  the  Roberts  Case 
as  establishing  a  different  rule  from  that  laid 
down  in  the  case  of  Rea  v.  Pittsburgh  &  Con- 
nellsviUe  R.  R.  Co.,  supra.  This  contention 
Is  without  foundation,  however,  as  appears 
from  the  case  of  Girard  Trust  Co.  v.  Phila- 
delphia, flupra.  In  that  ease  this  court  held 
that  an  expert  who  bases  bis  estimates  of 
value  of  property  upon  prices  obtained  on 
sales  of  similarly  located  land  in  the  neigh- 
borhood may  be  cross-examined  to  test  bis 
accuracy  and  knowledge  as  to  the  conditions 
of  these  sales,  including  the  prices.  It  Is 
there  stated: 

"There  is  nothing  in  the  opinion  in  the  Rob- 
erts Case  which,  in  any  manner,  or  to  any  de- 
gree, altered  or  was  intended  to  change  the  es- 
tablished rules  relating  to  the  examination  of 
expert  witnesses;  •  •  •  but,  generally  speak- 
ing, even  on  cross-examination,  such  a  witness 
cannot  in  the  first  instance  be  interrogated  con- 
cerning the  prices  brought  at  sales  not  relied 
upon  by  him  in  making  his  original  estimate  of 
value,  although,  if  he  has  relied  on  some  sales 
In  the  neighborhood,  he  may  be  asked,  without 
mention  of  prices,  if  he  knew  of  other  sales  of 
properties  similaHy  located  and  whether  he  con- 
sidered them,  and,  if  not,  why  not.  The  course 
which  the  investigation  may  take  after  that  de- 
pendi  largely  upon  the  dtscl^tion  of  the  trial 
judge,  constantly  keeping  in  mind  tbe  fact  that 
the  cross-examination  is  merely  to  test  the  good 
faith  and  accuracy  of  knowledge  of  the  witness, 
and  that  prices  paid  at  particular  sales  of  other 
properties  are  not,  in  themselves,  evidence  of  the 
market  value  of  the  land  in  controversy." 

Probably  tbe  last  case  on  the  subject  Is 
Llewellyn  ▼.  Coal  Co.,  supra,  where  we  said 
(255  Pa.  296,  99  Atl.  871): 

"The  rule  as  established  by  our  cases  is  that, 
while  a  party  cannot  bring  out  on  cross-exam- 
ination evidence  of  the  price  paid  for  other  prop- 
erty,' unless  the  witness  has  already  testified^that 
his  opinion  is  based  on  his  knowledge  of  the 


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101  ATLANTIC  REPOBTBE 


(Pa. 


Bales  of  snch  property,  yet,  if  he  has  so  testi- 
fied, he  may  be  cross-examined  as  to  prices,  for 
the  purpose  of  testing  his  good  faith  and  cred- 
ibility." 

In  the  present  case  defendant  was  permit- 
ted, without  objection,  to  cross-examine  wit- 
nesses for  plalntlfT  concerning  other  sales  of 
realty,  and  the  prices  obtained  therefor.  In 
otTering  testimony  of  this  kind  it  is  but  nat- 
nral  that  the  party  should  use  sales  least 
favorable  to  his  opponent,  and  the  result  of 
the  cross-examination  to  test  the  credibility 
and  extent  of  knowledge  of  the  witness  as 
to  such  sales  might  leave  the  Jury  in  pos- 
session of  only  a  part  of  the  facts  forming 
the  ba^s  of  the  witness'  opinion.  Additional 
facts,  such  as  the  prices  of  other  properties 
in  the  neighbortiood  similarly  situated,  may 
also  have  been  considered  as  the  basis  of  the 
opinion  given,  and  unless  these  matters  are 
placed  before  the  Jurors  they  are  in  no  posi- 
tion accurately  to  gauge  the  value  of  the 
testimony.  Under  such  circumstances  when 
defendant  questions  the  witness  regarding 
other  sales  the  door  for  the  admission  of 
such  testimony  Is  open.  To  what  extent  the 
investigation  along  this  line  should  be  car- 
ried is  a  matter  within  the  sound  discretion 
of  the  trial  Judge,  as  was  stated  in  Glrard 
Trust  Co.  V.  Philadelphia,  supra. 

[I]  A  fSmUiar  rule  of  evidence  is  that 
where  a  witness  testifies  to  part  of  a  transac- 
tion, the  opposing  party  may  insist  upon  the 
complete  transaction  being  shown,  even 
though  sudi  evidence  he  otherwise  Inadmis- 
sible (Postens  V.  Postens,  8  Watts  &  S.  127 ; 
Hamsber  v.  Kline,  57  Pa.  397) ;  and  we  see 
no  reason  why  that  rule  should  not  be  ap- 
plied in  cases  of  this  class.  McElheny  et  al. 
V.  Pitteburgh,  Va.  &  Charleston  Ry.  Co.,  147 
Pa.  1,  6,  23  Atl.  392,  relied  upon  by  the  trial 
Judge  was  a  proceeding  to  assess  damages 
for  the  appropriation  of  plaintifTs  land  by 
defendant  company.  In  that  case  in  a  i>er 
curiam  opinion  It  is  said: 

"The  single  assignment  of  error  is  to  the  ad- 
mission of  evidence  as  to  the  location  and  height 
of  the  highway  bridge.  It  is  sufficient  to  say,  in 
answer  to  this  objection,  that  ths  subject  was 
introduced  by  the  appellant  (defendant)  upon 
the  cioss-examination  of  the  plaintiffs'  witness. 
If  we  concede  that  it  would  not  liave  been  com- 
petent evidence  in  duef  on  the  part  of  plain- 
tiffs, the  defendant  having  brought  it  out,  the 
plaintiSB  were  clearly  entitled  to  follow  it  up 
by  the  questions  referred  to." 

In  the  recent  case  of  Penna.  B.  E.  0&  t. 
IHty  of  Beading,  249  Pa.  19,  94  Ati.  445,  the 
«ame  rule  was  applied.  In  proceedings  for 
the  assessment  of  damages  for  the  taking 
of  land,  a  witness  called  by  defendant  to 
testify  to  market  values,  on  cross-examina- 
tion, was  asked  whether  he  had  previously 
demanded  more  than  a  stated  sum  for  dam- 
ages to  his  property,  and  admitted  having 
asked  a  greater  amount,  and  we  there  held 
the  court  was  not  chargeable  with  error  in 
permitting  him,  on  redirect  examination,  to 


state  he  recovered  a  less  amount  than  he  had 
previously  demanded. 

While  the  scope  of  the  testimony  in  this 
case  went  beyond  the  confines  of  former  rul- 
ings of  this  court  in  the  admission  of  testi- 
mony relating  to  prices  paid  for  other  prop- 
erties similarly  situated,  the  trial  Judge  did 
not  abuse  his  discretion  in  permitting  the 
introduction  of  evidence  of  prices  of  sales 
In  the  community  other  than  those  brought 
out  by  defendant  in  cross-examination. 
The  special  instances  referred  to  by  defend- 
ant might  well  be  cases  where  the  consid- 
eration, for  reasons  with  which  we  are  not 
concerned,  was  much  less  than  the  market 
value  of  the  property.  Other  elements  not 
known  to  the  Jury  may  have  entered  Into  the 
transactions  and  affected  the  prices.  The 
rule  which  excludes  evidence  of  specific  val- 
ue should  therefore  require  the  admission  of 
testimony  showing  the  prices  of  all  sales  in 
the  immediate  neighborhood  relied  upon  by 
the  witness  if  the  opposite  party  so  wishes, 
In  order  that  the  real  basis  of  the  knowledge 
upon  which  the  witness  testifies  may  be  laid 
before  the  Jury. 

The  Judgment  Is  affirmed. 


(inPa.U» 


BOLDEN  T.  OREER. 


(Supreme   Court   of  Pennsylvania.     April  19, 
1917.) 

Mabteb  and  Szbvant  «=>417(3%)  —  Work- 
men's ColfPENBATION  PBOOBBOINO— PASTOSS 

jj^  PPEA  L. 

Under  Act  June  2,  1915  (P.  L.  754)  {  425, 
giving  an  implied  right  of  appeal  to  any  party 
interested  in  a  proceeding  under  the  act,  an  in- 
surer claiming  to  be  interested  in  the  proceed- 
ing should  make  itself  a  party  to  the  record  by 
seeking  to  intervene,  and  where  it  did  not  do  so, 
and  the  record  did  not  show  its  interest  in  the 
proceeding,  though  it  had  filed  an  answer  for 
the  employer,  its  appeal  from  the  award,  taken 
for  the  employer,  will  be  quashed. 

Appeal  from  Court  of  Comm<m  Pleas; 
Philadelphia  County. 

Proceeding  by  Mahala  Bolden  against  Aus- 
tin G.  Greer,  Jr.,  for  compensation  under  the 
Workmen's  O>mpen8ation  Act.  From  a  Judg- 
ment affirming  an  award  by  the  Wbrkmen's 
Compensation  Board,  the  Fidelity  &  Casualty 
Company  of  New  York,  Insurer,  appeals. 
Appeal  quashed. 

Argued  before  BROWN,  a  J.,  and  STEW- 
ART, MOSOHZISKBR,  FRAZBR,  and  WAIi- 
LING,  JJ. 

William  G.  Wright,  of  Philadelphia,  for 
appellant  A.  S.  Ashbrldge,  Jr„  and  Andrew 
R.  McCown,  both  of  Philadelphia,  for  appel- 
lee. 

BROWN,  O.  J.  This  appeal  Is  by  the  Fidel- 
ity &  Casualty  Company  of  New  York  from 
the  action  of  the  court  bdow  afflnning  an 
award  by  the  Workmen's  Compensation  Board 
to  an  injured  employ&  If  this  company  bas 
any  standing  aa  an  appellant.  Its  right  to  ap- 


«sFor  othar  ««••■  im  ua*  topic  and  KKT-NUMBER  In  all  K*7-NumlMrod  DlgmU  and  IndfXM 


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Pa.) 


IN  BE  LOUOBRAK'S  ESTATE 


817 


peal  mnst  be  found  In  section  425  of  tbe  act 
of  June  2,  1915  (P.  L.  7S4).  By  that  section 
an  Implied  right  to  appeal  is  given  to  any 
party  interested  in  a  proceeding  instituted 
under  the  act,  but  it  must  affirmatively  ap- 
pear from  the  record  that  the  party  appeal- 
ing is  so  interested.  At  no  stage  of  this  pro- 
ceeding did  appellant  ask  to  be  allowed  to 
intervene  as  an  interested  party.  True,  it 
filed  an  answer  for  the  employer  to  the  peti- 
tion of  employ^  for  an  award  of  compensa- 
tion, and  appealed  for  the  employer  from  the 
award;  but  nowhere  in  the  proceeding,  ei- 
ther before  the  referee,  the  c<Hnpensatlon 
board,  or  the  court  below,  does  it  appear 
that  it  was  an  insurance  carrier,  carrying  in- 
surance covering  the  case  of  the  appellee. 
Orderly  procedure  requires  that  a  party 
claiming  to  be  interested  in  a  proceeding  con- 
ducted under  the  Workmen's  Compensation 
Act  shall  make  himself  a  party  to  the  rec- 
ord by  asking  to  intervene,  unless  It  affirma- 
tively appears  from  the  record  itself  that  he 
is  actually  a  party  in  interest.  As  the  rec- 
ord in  the  case  before  us  discloses  no  right 
of  appeal  in  the  appellant,  appellee's  conten- 
tion that  its  appeal  be  quashed  must  prevail. 
Appeal  quashed. 


(267  Pk.  EM) 

In  re  LOUGHRAN'S  ESTATE. 

Appeal  of  HOUSE  OF  GOOD   SHEPHERD 

IN  CITY  OF  PHILADELPHIA  et  al. 

(Supreme   Court   of   Pennsylvania.     April   16, 
1917.) 

EXECUTOBS  AND  Administbatobs  «=9225<8)— 
PSKSENTATIOW   OF  CLAIMS— TlMK. 

Claims  against  an  estate  for  loss  resulting 
from  decedent's  breach  of  trust  in  misappropri- 
ating the  proceeds  of  a  mortgage  received  from 
her  husband's  estate,  of  which  she  was  life  ten- 
ant and  trustee,  not  presented  until  24  years 
after  such  breach,  9  years  after  the  appointment 
of  an  administrator  pendente  lite  of  the  trustee's 
estate,  and  2  years  after  the  appointment  of  an 
administrator  d.  b.  n.  c.  t.  a.,  were  properly  dis- 
allowed. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

Appeals  by  the  House  of  the  Good  Shep- 
herd in  the  City  of  Philadelphia  and  others, 
from  a  decree  dismissing  exceptions  to  adju- 
dication in  the  estate  of  Bridget  Lougliran, 
deceased.    Appeals  dismissed. 

The  facts  appear  in  the  following  opinion 
by  Anderson,  J.,  in  the  orphans'  court,  sur 
exceptions  to  the  adjudication : 

Admitting  for  the  sake  of  the  argument  that 
the  laches  of  the  claimants  in  this  case  did  not 
begin  until  the  death  of  the  testatrix,  March  20, 
1902,  ^et  the  fact  remains  that  at  her  death 
the  claimants  became  at  once  entitled  to  an  ac- 
counting of  whatever  remained  in  her  hands  of 
the  estate  of  her  husband,  and,  if  they  bad  been 
so  inclined,  notwithstanding  the  contest  over  her 
will  they  could  after  his  appointment  on  April 
25,  1902,  have  cited  the  administrator  pendente 
lite  to  file  an  account.  Webb's  Estate,  20  Wkly. 
Notes  Cas.  275.  For,  although  it  has  been  held 
that  an  administrator  pendente  lite  cannot  dis- 
tribute the  estate  of  his  decedent,  that  being 


the  duty  of  the  executor  under  the  will  or  the 
administrator  d.  b.  n.  c.  t.  a.,  yet  the  very  pur- 
pose of  such  an  appointment  is  not  only  to 
gather  together  the  assets  of  the  estate,  but  also 
to  protect  the  creditors  as  well  as  distributees 
and  legatees.  Park  v.  Marshall,  4  Watts,  382 ; 
Logan's  Estate,  21  Pa.  Co.  Ct.  R,  455;  Win- 
penny's  Estate,  11  Phila.  20.  Otherwise  cred- 
itors of  a  perfectly  solvent  estate  might  be  kept 
out  of  their  just  claims  for  years,  awaiting  the 
determination  of  litigation  over  a  will  in  which 
they  are  not  interested.  The  claim  of  the  estate 
of  John  Loughran  was  not  a  claim  for  distribu- 
tion, as  in  Fow's  Estate,  20  Phila.  128,  but  was 
the  claim  of  a  creditor  of  Bridget  Loughran. 

The  claimants,  however,  rested  quiescent  until 
some  time  in  1911,  9  years  after  the  death  of 
the  testatrix  and  appointment  of  the  adminis- 
trator pendente  lite,  and  2  years  after  the  ap- 
S ointment  of  the  administrator  d.  b.  n.  c.  t.  a. 
teanwhile  witnesses  acquainted  with  the  testa- 
trix and  her  affairs  and  who  could  have  been 
called  to  testify  what  she  had  done  with  the  as- 
sets of  the  trust  estate  may  have  died,  and  the 
facts  forgotten  by  those  who  are  still  living.  It 
is  for  this  very  reason  that  the  statute  of  limita- 
tions prevents  the  collection  of  claims  unless 
an  action  is  begun  within  6  years  from  the  time 
they  accrue;   and  that  statute,  or  a  rule  analo- 

fous  to  it,  is  enforced  in  the  orphans'  court, 
ork's  Appeal,  110  Pa.  69,  1  Atl.  162,  2  AO. 
66 ;  Higgins's  Estate,  22  Pa.  Dist.  R.  179,  and 
cases  cited.  And  while  it  is  true  that  in  an 
injunction  affidavit  sworn  to  by  the  testatrix 
stated  tbat  she  bad  conveyed  this  mortgage  <^ 
l$6,000  to  Terrence  Loughran  without  considera- 
tion and  for  the  purpose  of  securing  possession 
of  the  estate,  it  is  also  true  that  a  demurrer  to 
the  bill  was  sustained  and  the  bill  subsequently 
dismissed  with  the  consent  of  the  plaintiff. 
The  abandonment  of  the  suit  raises  the  infer- 
ence either  that  the  testatrix  was  mistaken  in 
her  allegation,  or  that  she  was  repaid  the  value 
of  the  mortgage.  And  the  fact  that  at  her  death 
she  left  no  personal  property  of  any  Idnd  raises 
the  presumption   that  that  wtiich  she  had  ac- 

auir^  from  her  husband  was  used  by  her  un- 
er  the  ample  powers  given  her  by  her  husband's 
will. 

It  seems  to  the  court  therefore,  that  it  is  too 
late  now,  24  years,  alter  the  occurrence  and 
many  years  after  her  death,  to  ask  to  charge  her 
estate  with  a  mortgage  received  from  her  hus- 
band's estate  simply  because  in  a  suit  begun 
by  her  21  years  ago  she  declared  that  she  had 
passed  it  away  without  consideration,  an  allega- 
tion which  according  to  the  record  she  failea  to 
substantiate.  The  claimants  have  rested  on 
their  rights  too  long,  and  the  policy  of  the  law 
prevents  us  or  the  evidence  produced  from  find- 
ing the  fact  tbat  Bridget  Loughran  did  not  prop- 
erly expend  the  proceeds  of  the  mortgage  which 
passed  to  her  as  life  tenant  under  her  husband's 
will. 

The  court  dismissed  the  exceptions.  The 
exceptants  appealed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKKJtt,  FRAZER,  and  WAL- 
LING, JJ. 

E.  Spencer  Miller,  James  Fltzpatrlck,  and 
A.  A.  Hirst,  all  of  Philadelphia,  for  appel- 
lants. Henry  A.  Hoefler  and  Michael  Fran- 
cis Doyle,  both  of  Philadelphia,  for  appellees. 

PER  CURIAM.  These  appeals  are  dis- 
missed, at  the  costs  of  appellants,  on  the 
opinion  of  the  learned  court  below  dismissing 
the  exceptions  to  the  adjudication  of  the  ac- 
count by  the  auditing  Judge. 


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101  AILAKTIO  BBPORTBB 


(Pa. 


<ST  Pia.  487) 

WILLS  et  aL  t.  FISHER. 

(Supreme  Court  of  Pennsylvania.    April  16, 
1917.) 

Vendob  and  Phbchaseb  <s=130(8)— Titlk  of 

VENDOB — PURCnASEB  FBOU  EXECUTORS. 

Where  the  owner  of  half  of  a  lot  erecting  a 
huilding  upon  bis  own  half  and  the  adjoining 
half,  and  the  executors  of  the  owner  of  the  other 
half,  having  power  to  sell  realty,  charged  them- 
selves on  their  account  with  cash  from  the  first 
owner  as  proceeds  of  the  house  and  lot,  a  find- 
ing of  a  conveyance  by  the  executors  was  war 
ranted,  although  there  was  no  deed  upon  record, 
so  that  a  party  claiming  under  the  first  owner 
could  convey  marketable  title. 

Appeal  from  Court  of  Common  Pleas,  Lan- 
caster County. 

Assumpsit  by  Samuel  R.  Wills  and  anoth- 
er, executors  of  the  will  of  Mary  L.  Baer,  de- 
ceased, against  J.  Fred  F'lsher,  to  recover  the 
purchase  price  of  real  estate.  Judgment 
for  plaintiffs  for  $14,579.90,  and  defendant 
appeals.     Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER. 
and  FRAZER,  JJ. 

T.  Roberts  Appel,  of  Lancaster,  submitted 
for  appellant 

BROWN,  C.  J.  Under  testamentary  pow- 
er given  them,  the  executors  of  Mary  L.  Baer 
agreed  to  sell  to  appellant  property  known 
as  141  East  Orange  street,  in  the  city  of  Lan- 
caster, and  to  give  him  a  good  and  market- 
able title  for  the  same.  This  lot  of  ground 
has  a  frontage  of  64  feet  4>^  inches.  On  De- 
cember 31,  1828,  John  Baer  acquired  an  un- 
questionable title  to  the  western  half  of  it, 
and  on  the  same  day  John  Ehler  acquired  a 
similar  title  to  the  eastern  half.  Mary  L. 
Baer  was  the  widow  of  Reuben  A.  Baer,  In 
whom  there  was  vested  at  the  time  of  his 
death  a  recorded  title  to  the  western  half  of 
the  lot,  formerly  owned  by  the  said  John 
Baer,  his  father.  Some  years  before  Reuben 
A.  Baer's  death  he  erected  a  large  dwelling 
bouse  <m  the  lot,  which  extended  over  the 
eastern  as  well  as  tlie  western  half  of  it  By 
bis  will  he  devised  all  of  his  real  estate  to 
his  widow.  In  this  action,  brought  to  re- 
cover the  purchase  money  for  the  lot  sold 
to  appellant,  tds  defense  in  the  court  below 
was  that  Reuben  A.  Baer  had  not  acquired  a 
good  title  to  the  eastern  half  of  It,  formerly 
owned  by  John  Ehler.  The  title  to  the  oth- 
er lialf  is  not  questioned.  The  learned 
judges  of  the  court  below,  before  whom  the 
case  was  tried  without  a  jury,  held  that  the 
title  of  Baer  to  the  Ehler  part  of  the  lot  was 
good  and  marketable,  and  on  this  appeal 
from  the  Judgment  entered  against  the  pur- 
chaser, the  sole  question  is  Baer's  title  to 
that  part  of  the  lot 

No  deed  could  be  found  from  John  Ehler 
or  his  executors  to  Reuben  A.  Baer  for  the 
eastern  half  of  the  lot.  Ehler  died,  leaving 
n  win  dated  March  31,  1860.    By  its  terms 


he  directed  that  bis  wife  should  have  the 
rent  and  income  for'  life  from  his  "one-sto- 
ried brick  dwelling  bouse  and  other  buildings 
and  lot  or  piece  of  ground  belonging  there- 
to, on  the  north  side  of  the  said  Orange 
street,  between  Duke  and  Lime  streets, 
bounded  on  the  east  by  property  of  E.  C. 
Relgart,  Esq.,  on  the  west  by  property  of 
John  Baer,  on  the  north  by  a  public  alley." 
This  is  undoubtedly  the  property  known  In 
the  present  controversy  as  the  eastern  half 
of  the  Baer  lot  Ehler  directed  that,  upon 
the  death  of  bis  widow,  it  should  be  sold  by 
his  executors,  and  by  their  account,  filed  in 
the  orphans'  court  of  the  county  on  Novem- 
ber 20,  1869,  they  charged  themselves  as  fol- 
lows, under  date  of  October  3,  1868:  "Cash 
from  R.  A.  Baer,  proceeds  of  sale  one-story 
house  and  lot  on  Orange  St.,  $2,750."  The 
court  below  found  as  a  fact  that  this  charge 
"without  doubt"  related  to  the  eastern  half 
of  the  Baer  lot,  or  the  property  Involved  in 
this  controversy,  and  this  finding  has  not 
been  assigned  as  error.  The  purchase  mon- 
ey for  Ebler's  lot,  received  by  his  executors 
from  R.  A.  Baer,  was  included  in  the  bal- 
ance shown  to  be  in  their  bands  by  their  ac- 
count, and  by  the  report  of  an  auditor,  duly 
confirmed,  this  was  distributed,  in  accord- 
ance with  the  terms  of  Ebler's  will,  among 
his  three  sons,  whom  be  had  named  as  hfs 
executors.  In  view  of  this,  no  one  of  theni. 
if  living,  could  make  any  claim  to  the  prop- 
erty, and  no  one  making  claim  under  them 
can  set  up  any  sort  of  title  to  it  As  legatees 
under  their  father's  will,  the  sons  received 
the  proceeds  of  the  sale  of  the  lot,  ard  com- 
mon honesty  and  the  law  alike  forbid  that  a 
party  may  have  the  price  of  land  sold  and 
the  land  itself.  Johnson  v.  Fritz,  44  Pa.  449; 
Maple  V.  Kussart,  53  Pa.  348,  91  Am.  Dec. 
214. 
Judgment  affirmed. 


iSffl  Po.  52S> 

In  re  BUDDY'S  ESTATE. 

Appeal  of  MOORE. 

(Supreme   Court  of  Pennsylvania.     AprS    16, 
1917.) 

WnXS  «=5>647  —  CONBTBUCTION  —  EISTATE  Db- 
VISED. 

Under  a  will  bequeathing  an  estate  in  trust 
to  a  niece  for  life,  and  on  her  death  to  pay  the 
income,  in  eqaal  shares  to  her  five  children  and 
to  the  children  of  any  of  her  children  that 
bad  died,  such  children  to  take  their  parent's 
share  until  the  death  of  the  last  of  such  niece's 
children,  and  then  for  distribution  between  her 
grandchildren  and  the  issue  of  any  deceased 
grandchild  per  stirpes,  the  interest  of  one  of  the 
niece's  children  dying  in  ber  mother's  lifetime 
without  issue  terminated,  and  ber  executor  was 
not  entitled  to  her  share  of  the  income  accruing 
between  her  death  and  the  period  of  final  dis- 
tribution. 

Appeal  from  Superior  Court 
Appeal  by  Edwin  H.  Moore,  surviving  ex- 
ecutor of  Helen  W.  Fagan  Moore,  deceased, 


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Pa.) 


IN  RE  BUDDY'S  ESTATE 


819 


from  a  decree  of  the  Snperior  Court,  reversing 
a  decree  of  the  orphan's  court,  dlamlsslng  ex- 
ceptions to  adjudication  In  tbe  estate  of 
Henry  Huddy,  deceased.  Decree  affirmed, 
and  appeal  dismissed. 

From  the  record  it  appeared  that  Henry 
Huddy,  the  testator,  died  on  April  24,  1904, 
leaving  a  will  by  which  he  provided,  inter 
alia,  as  follows. 

"Third — I  give  and  bequeath  the  following 
legacies  free  of  collateral  inheritance  tax  to  wit : 

"To  the  five  children  of  my  niece,  Eliza  M. 
Tagan,  to  wit:  Emma,  Clara,  Helen,  Edgar 
and  Benjamin  Fagan,  each  the  sum  of  three 
thousand  dollars  ($3,000). 

"Fourth.  All  the  rest,  residue  and  remainder 
of  my  estate,  real,  personal  and  mixed,  what- 
soever and  wheresoever  situate,  I  give,  devise 
and  bequeath  unto  tbe  £^deUty  Insurance, 
Trust  and  Safe  Deposit  Company,  in  trust,  to 
hold  and  invest  the  same^  and  to  keep  the  same 
invested  in  such  securities  as  I  may  leave  or 
in  such  other  securities  as  they  may  deem  for 
the  best  interests  of  my  estate,  and  to  collect 
the  income  thereof,  and  to  pay  the  same  unto 
my  niece,  Eliza  M.  Fagan,  for  and  during  all 
the  term  of  her  natural  life.  B>om  and  imme- 
diately after  her  decease,  then  to  pay  the  said 
income  in  equal  shares  to  her  children  as  above 
set  forth  and  to  the  children  of  any  of  her  said 
children  who  may  be  deceased,  such  children 
to  take  their  parents'  share,  until  the  death 
of  the  last  of  my  said  niece's  children.  When 
that  occurs,  I  direct  that  the  principal  of  my 
estate  shall  be  divided  in  equal  shares  between 
my  said  niece's  grandchildren  and  the  issue  of 
any  grandchildren  who  may  be  deceased,  per 
stirpes.  It  is  my  will  that  the  income  so  to 
be  paid  to  my  niece  and  her  children  shall  be 
paid  quarterly,  and  shall  not  be  subject  to  as- 
signment, anticipation,  or  alienation,  nor  to  the 
debts  of  any  of  the  beneficiaries,  but  that  the 
same  shall  be  held  to  be  applied  for  their  main- 
tenance and  support." 

Helen  Fagan  married  Edwin  H.  Moore,  and 
died  without  issue  on  April  6,  1910,  leaving 
a  will  by  which  she  appointed  as  executor 
ber  husband,  Edwin  H.  Moore.  Eliza  M.  Fa- 
gan, the  testator's  niece,  died  on  December 
27,  1912.  The  trustee  thereupon  filed  an  ac- 
count, by  the  final  adjudication  of  which  it 
was  decreed  that  the  executor  of  Helen  W. 
Moore  was  entitled  to  one-flfth  of  the  Income 
derived  from  the  estate. 

The  lower  court  dismissed  the  exceptions 
to  the  adjudication.  Clara  H.  Fagan  ap- 
pealed. 

Further  facts  appear  in  Huddy's  Estate, 
63  Pa.  Super.  Ct  34,  and  in  the  following 
opinion  of  the  superior  court  by  Kephart,  J.: 

The  question  raised  on  this  appeal  relates  to 
the  nature  and  distribution  of  the  estate  to 
which  the  children  of  Eliza  M.  Fagan  were  en- 
titled under  the  will  of  Henry  Huddy.  The 
testator  gave  his  estate  to  the  Fidelity  Insur- 
ance, Trust  &  Safe  Deposit  Company  to  hold 
and  invest  "and  to  collect  the  income  thereof 
and  to  pay  the  same  unto  my  niece,  Eliza  M. 
Fagan,  for  and  during  all  the  term  of  her  nat- 
ural life.  From  and  immediately  after  her  de- 
cease, then  to  pay  the  said  income  in  equal 
shares  to  her  children  as  above  set  forth  and 
to  the  children  of  any  of  her  said  children  who 
may  be  deceased  such  children  to  take  their 
parent's  share,  until  the  death  of  the  last  of 
my  said  niece's  children.  When  that  occurs,  I 
direct  that  the  principal  of  my  estate  shall  be 


divided  in  equal  shares  between  my  said  niece's 

frandchildren  and  tbe  issue  of  any  grandchil- 
ren  who  may  be  deceased,  per  stirpes.  It  is 
my  will  that  the  income  so  to  be  paid  to  my 
niece  and  her  children  shall  be  paid  quarterly, 
and  shall  not  be  subject  to  assignment,  antici- 
pation or  alienation,  nor  to  the  debts  of  any 
of  the  beneficiaries,  but  that  the  same  shall  he 
held  to  be  applied  for  their  maintenance  and 
support"  One  of  the  children  of  Mrs.  Fagan, 
Edgar  Fagan,  died  in  the  lifetime  of  the  tes- 
tator. Another  child,  Helen,  who  was  married 
to  EMwin  H.  Moore,  died  without  issue  April 
6,  1910,  after  having  made  a  will  in  which  she 
appointed  her  husband  an  executor.  Eliza  M. 
Fajran,  the  testator's  niece,  died  December  27, 
1912.  Tbe  contest  here  arises  over  tbe  dis- 
tribution of  the  income  bequeathed  to  Helen 
Fagan  Moore.  The  conclusion  of  the  orphans' 
court  was  that  the  interest  bequeathed  to  her 
was  an  estate  pur  autre  vie ;  that  it  was  vest- 
ed and  that  it  continues  until  the  death  of  the 
survivor  of  the  grandchildren  of  Eliza  M.  Fa- 
gan, and  that  the  case  is  within  tbe  interpreta- 
tion applied  in  little's  Appeal,  81  Pa.  190, 
Leech's  Estate,  228  Pa.  311,  77  Atl.  555.  and 
Hamed's  Estate,  54  Pa.  Super.  Ct  47.  It 
was  held  that  as  the  bequests  to  tbe  children  of 
Mrs.  Fagan  were  "to  her  children  as  above  set 
forth,"  that  is,  nominatim,  there  was  no  right 
of  survivorship  and  that  as  there  was  a  pre- 
sumption against  intestacy  the  gift  was  absolute 
to  Mrs.  Moore  during  the  life  of  the  sur- 
vivor of  her  nephews  and  nieces.  The  view  pre- 
sented by  the  appellant  is  that  tbe  will  ex- 
hibits an  intention  on  the  part  of  the  testator 
to  preserve  the  estate  for  the  grandchildren  of 
Eliza  M.  Fagan  and  their  issue  until  the  death 
of  the  survivor  of  the  grandchildren  of  Mrs. 
Fagan  when  division  is  to  be  made  per  stirpes ; 
and  in  the  meantime  to  provide  for  tbe  support 
of  his  niece  and  her  children  for  their  lives  and 
that  the  case  is  not  controlled  by  any  presump- 
tion of  intent  or  affected  by  the  doctrine  of 
survivorship  but  should  be  disposed  of  in  the 
same  manner  as  was  done  in  Rowland's  Es- 
tate, 141  Pa.  553,  21  Atl.  735,  in  which  it  was 
held  that  the  administrator  of  a  deceased  son 
of  tbe  testator  to  whom  was  bequeathed  a 
proportionate  share  of  the  income  of  the  estate 
and  who  died  without  issue  was  not  entitled  to 
the  share  bequeathed  to  that  son;  that  the 
provision  for  payment  to  the  testator's  chil- 
dren or  the  issue  of  any  who  may  have  died 
created  two  classes:  Children  of  the  testator, 
and  issue  of  deceased  children;  and  that  as  tbe 
son  died  without  issue  he  fell  out  of  the  first 
class  and  was  not  represented  in  the  second. 
The  cases  relied  on  by  the  court  below  were  all 
determined  on  the  ground  that  no  intention  of 
the  testator  was  disclosed  to  give  any  other 
effect  to  the  bequest  than  that  of  an  absolute 
gift.  It  is  contended  here,  however,  that  there 
is  a  definite  expression  of  an  intention  incon- 
sistent with  tbe  conclusion  that  any  other  per- 
son than  the  niece  or  her  children  or  the  is- 
sue of  her  children  can  take  under  the  will. 
A  comparison  of  this  will  with  that  in  Row- 
land's Estate  shows  a  very  close  resemblance. 
In  the  latter  there  was  a  direction  to  divide 
annually  the  net  balance  of  income  equally  per 
stirpes  and  not  per  capita  between  the  testa- 
tor's children  and  the  issue  of  his  children  that 
may  at  any  time  have  died  leaving  issue,  until 
the  death  of  the  survivor  of  said  children,  the 
principal  of  the  estate  to  be  held  until  the  death 
of  every  one  of  the  testator's  children  and  at 
the  death  of  the  last  of  them  to  be  divided  equal- 
ly per  stirpes  between  the  issue  then  living  of 
the  testator's  children.  In  the  pending  case  the 
will  provided  for  the  payment  of  the  income  in 
equal  shares  to  the  testator's  children  who  had 
been  named  in  a  preceding  part  of  the  will  and 
the  children  of  any  who  may  be  deceased,  such 
children  to  take  their  parents'  share.  Payment 
was  to  be  made  quarterly  the  fund  not  to  be 


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subject  to  assignment,  anticipation  and  aliena- 
tion, nor  to  the  debts  of  any  of  tlie  beneficiaries, 
but  was  to  be  held  to  be  applied  for  tlieir  main- 
tenance and  support  No  distinction  is  appar- 
ent in  the  two  cases  which  leads  us  to  a  con- 
clusion that  Rowland's  Elstate  should  not 
control  the  one  which  we  are  called  on  to  decide. 
The  situation  of  the  son  in  the  former  case  is 
identical  with  that  of  the  appellee  here,  and 
the  evidence  of  intention  is  indeed  stronger  in 
this  case  than  in  the  other,  for  the  bequest  is 
not  only  protected  by  a  spendthrift's  trust,  but 
is  especially  appropriated  to  the  maintenance 
and  support  of  the  legatee.  The  "beneficiaries" 
referred  to  in  the  will  are  no  others  than  the 
niece.  Mrs.  Fagan,  ber  children,  and  her  grand- 
children. These  are  the  persons  for  whose  ben- 
efit the  property  is  set  apart  and  the  purpose 
of  the  testator  is  apparent  to  so  control  its 
destination  as  to  result  in  their  benefit  and 
advantage  exclusively.  The  other  view  of  the 
case  diverts  it  to  strangers  and  subjects  it  to 
possible  liability  for  the  debts  of  those  who 
are  alien  to  the  testator's  blood  and  strangers 
to  his  bounty.  If  the  distributees  are  treated 
as  two  classes,  viz.  the  children  of  Mrs.  Fagan 
and  her  grandchildren,  as  was  done  in  Row- 
land's Estate,  no  question  of  survivorship  aris- 
es, nor  is  there  an  intestacy.  The  deceased 
legatee  bad  a  vested  interest  in  the  income  for 
her  own  life.  The  distinction  sought'  to  be 
drawn  between  Rowland's  Estate  and  this  case, 
because  in  the  former  there  was  provision  for 
an  annual  division  of  the  income  per  stirpes, 
is  not  convincing  in  view  of  the  fact  that  a 
quarterly  division  was  provided  for  by  the  tes- 
tator here  and  it  was  directed  that  the  grand- 
children should  take  their  parents'  share,  which 
is  as  clearly  an  arrangement  for  distribution 
per  stirpes  as  if  a  technical  phrase  had  been 
used  for  that  purpose.  The  fact  that  payment 
was  to  be  made  in  one  case  annually  and  in 
the  other  every  three  months  is  not  a  con- 
trolling consideration.  In  Little's  Appeal,  su- 
pra, there  were  no  words  in  the  will  to  show 
an  intent  to  limit  the  gift  of  the  income  to  the 
legatee  for  her  own  life.  There  was  no  gift 
over  of  the  income  on  the  death  of  Mrs.  Little, 
nor  was  there  anything  in  the  will  showing  an 
intention  to  provide  otherwise  than  that  the 
estate  should  pass  to  ber  legal  representatives 
at  her  death.  The  absence  of  a  gift  over  and 
of  an  expressed  intention  as  to  the  use  and 
enjoyment  of  the  income  gave  support  to  the 
determination  of  the  court  that  the  gift  was 
absolute  in  the  first  taker  pur  autre  vie.  Of 
like  import  is  Hildebrant  v.  Ilildebrant,  42  Pa. 
Super.  Ct.  190.  In  Leech's  Estate,  supra,  there 
was  express  provision  for  payment  to  the  wid- 
ow of  either  of  the  testator's  sons  as  such  son 
might  by  his  last  will  direct  and  appoint,  and 
there  was  no  feature  of  the  whole  will  which 
suggested  an  intention  to  give  less  than  a  full 
and  absolute  estate  in  the  income  to  the  lega- 
tees. All  of  the  cases  following  Little's  Ap- 
peal are  distinguished  by  the  absence  of  any 
purpose  of  the  testator  to  appropriate  the  es- 
tate exclusively  to  a  class  oi  legatees,  and  in 
that  respect  this  case  belongs  to  the  class  of 
which  Rowland's  Appeal  and  Babcock's  f>i- 
tate,  18  Pa.  Dist.  R.  453,  are  illustrations. 
Our  conclusion  is  that  by  the  terms  of  the  tes- 
tator's will  the  distribution  was  limited  to  the 
children  of  Eliza  M.  Fagan  and  their  issue  for 
the  purpose  stated  in  the  will  and  that  the 
interest  of  Helen  Fagan  Moore  in  the  income 
terminated  with  her  death.  It  follows,  there- 
fore, that  the  decree  should  be  reversed,  and 
distribution  made  accordingly. 

Edwin  H.  Moore,  surviving  executor  of 
Helen  W.  Fagan  Moore,  deceased,  appealed 
from  the  decree  of  the  superior  court. 


Argued  before  BROWN,  OL  3.,  and  STB5W- 
ART,  MOSCHZISKEK,  FBAZEB,  and  WAIi- 
LING,  JJ. 

John  D.  AfcMulUn,  of  Philadelphia,  for  ap- 
pellant A.  H.  Wintersteen,  of  Philadelphia, 
for  appellee. 

PEB  CURIAM.  The  clearly  expressed  in- 
tention of  the  testator  confines  the  distribu- 
tion of  the  income  from  his  estate  to  the 
children  of  his  deceased  niece,  Eliza  M. 
Fagan,  and  their  Issue.  This  was  the  cor- 
rect conclusion  of  the  Superior  Court.  Bud- 
dy's Estate,  63  Pa.  Super.  Ct  34.  Helen 
E^gan  Moore,  a  grandniece,  having  died  with- 
out issue,  her  interest  In  the  Income  termi- 
nated with  her  death.  Rowland's  Estate,  141 
Pa.  553,  21  AO.  735. 

Appeal  dismissed,  and  decree  of  superior 
court  affirmed  at  appellant's  costs. 

(m  Pa.  503) 
TOEK  V.  MARSHALL. 

(Supreme   Court   of   Pennsylvania.     April   16, 
1917.) 

1.  Bbplevin  «=>4— Seizuhk  bt  Pubmc  Offi- 
cial—Quashing Writ. 

Under  Act  AprU  3,  1779  (1  Smith's  Laws,  p. 
470)  I  2,  a  writ  of  replevin  to  recover  property 
seized  by  a  public  oiScial  is  unauthorized,  and, 
where  issued  will,  on  motion,  be  quashed. 

2.  Replevin  (S=»4  —  Seizuxb  or  Pebsonai. 
Property— Bemedt. 

Where  the  state  veterinarian,  acting  on 
behalf  of  the  state  live  stock  sanitary  board, 
seized  plaintiff's  cattle  and  established  a  special 
quarantine  on  plaintiff's  land  in  order  to  make  a 
tuberculin  test,  as  directed  by  Act  July  22,  1913 
(P.  L.  928),  and  thereafter,  without  plaintiffa 
consent,  broke  into  the  field  and  removed  the 
cattle  to  another  quarantine  station,  plaintiffs 
remedy,  if  any,  was  by  an  action  of  triespaas,  and 
not  by  a  writ  of  replevin. 

Appeal  from  Court  of  Common  Pleas. 
Bradford  County. 

Replevin  by  David  B.  York  for  cattle  seis- 
ed by  C.  J.  Marshall,  State  Veterinarian. 
From  an  order  quashing  the  writ,  plaintiff 
appeals.    AfiQrmed. 

Argued  before  BROWN,  C.  J.,  and  ME3- 
TBEZAT,  POTTER,  FRAZER,  and  WAI.,- 
LINQ,  JJ. 

H.  K.  Mitchell,  of  Troy,  and  Harold  M. 
McClure,  of  Lewisburg,  for  appellant  David 
J.  Fanning,  Dlst  Atty.,  of  Troy,  Horace  W. 
Davis,  Deputy  Atty.  Gen.,  and  Francis  Shunk 
Brown,  Atty.  Gen.,  for  ai^ellee. 

MESTRBZAT,  J.  Certain  cattle  belons- 
Ing  to  the  plaintiff  being  suspected  of  hav- 
ing tuberculosis,  defendant,  the  state  veter- 
inarian, acting  for  and  on  behalf  of  the  state 
live  stock  sanitary  board  of  Pennsylvania, 
seized  them  on  July  27,  1916,  and  established 
a  special  quarantine  of  the  cattle  for  60  days 
in  a  field  on  lands  In  possession  of  the  plain- 
tifT,  for  the  purpose  of  making  a  tuberculin 
test,  as  directed  by  the  act  of  July  22,  1913 


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(P.  Ij.  928).  On  September  4,  1916,  the  de- 
fendant, without  the  consent  or  knowledge 
of  the  plaintiff,  broke  the  lock  on  the  gate 
leading  Into  the  field  In  which  the  cattle 
were  originally  quarantined,  and  removed 
them  from  the  plaintiff's  premises  to  the 
stable  of  one  C.  W.  Mitchell,  and  there  es- 
tablished another  special  quarantine  for  4 
days,  for  the  purpose  of  testing  the  cattle. 
The  plaintiff,  claiming  that  the  defendant 
was  acting  without  lawful  authority  In  tak- 
ing and  retaining  the  cattle,  Issued  this  writ 
of  replevin,  September  6,  1916,  while  the  cat- 
tle were  under  the  second  quarantine,  and 
they  were  delivered  to  him  by  the  sheriff. 

The  Attorney  General  of  the  common- 
wealth presented  a  petition  to  the  court  be- 
low setting  forth  at  length  the  action  of  the 
defendant  In  seizing  and  detaining  the  plain- 
tiff's cattle  and  the  alleged  legal  authority 
therefor,  and  averring,  inter  alia,  that  the 
defendant  was  a  state  ofllcer,  that  he  was 
acting  under  the  authority  of  the  state,  and 
the  cattle  were  lawfully  in  his  custody,  and 
that  the  acts  of  the  plaintiff  and  offldala  in 
issuing  and  serving  the  writ  of  replevin  were 
irregular,  improper,  and  unlawful,  and  mov- 
ed the  court  to  quash  the  writ,  award  treble 
costs  to  the  defendant,  and  to  grant  a  rule 
on  the  prothonotary  to  show  cause  why  an 
attachment  should  not  issue  against  him  for 
having  issued  the  writ,  knowing  the  same  to 
be  for  goods  and  chattels  seized  by  a  public 
officer  acting  under  the  authority  of  the 
state.  The  rule  on  the  prothonotary  was  en- 
tered and  he  filed  an  answer  averring  that 
there  was  nothing  in  the  pleadings  or  the 
writ  to  show  and  he  had  no  knowledge,  that 
the  suit  was  being  brought  against  the  state 
of  Pennsylvania  or  any  officer  in  his  official 
capacity.  The  plaintUTs  answer  denied  the 
authority  of  the  defendant  to  remove  the 
cattle  from  plaintifTs  field  and  take  them  in- 
to defendant's  custody,  or  to  administer  tu- 
berculin to  the  cattle  for  the  purpose  of  test- 
ing them,  and  averred  that  the  writ  of  re- 
plevin would  lie  against  the  defendant,  al- 
though an  officer  of  the  commonwealth,  as 
the  defendant  bad  exceeded  bis  lawful  au- 
thority in  taking  the  cattle  into  his  posses- 
sion. 

The  court  below  declined  to  award  treble 
costs  to  defendant,  discharged  the  rule  on 
the  prothonotary,  and  quashed  the  writ. 
The  learned  Judge  filed  an  elaborate  opinion 
In  which  he  not  only  assigned  bis '  reasons 
for  refusing  treble  costs  and  discharging  the 
rule  and  quashing  the  writ,  but  also  discus- 
sed the  powers  and  duties  of  the  state  veter- 
inarian and  of  the  state  live  stock  sanitary 
board  under  the  legislation  of  the  state.  The 
plaintiff  has  appealed. 

We  think  the  learned  court  was  right  in 
quashing  the  writ.  Whether  the  defendant 
exceeded  or  abused  the  powers  conferred  up- 
on him  as  state  veterinarian  Is  not  an  Issue 
In  this  suit,  and  therefore  we  express  no 


opinion  on  the  subject  In  an  appropriate 
action,  it  can  be  Judicially  determined  wheth- 
er the  defendant,  as  such  official,  was  Justi- 
fied under  the  laws  of  the  commonwealth  in 
taking  and  retaining  possession  of  the  plain- 
tiff's property. 

[1]  Section  2  of  the  act  of  April  3,  1779 
(1  Smith's  Laws  470;  4  Pnrd.  [ISth  Ed.] 
4136),  provides  as  follows: 

"All  writs  of  replevin  granted  or  Issued  for 
any  owner  or  owners  of  any  goods  or  chattels, 
levied,  seized  or  taken  in  execution,  or  by  dis- 
tress, or  otherwise,  by  any  sheriff,  naval  ofiieer, 
lieutenant  or  sublieutenant  of  the  city  of  Phil- 
adelphia, or  of  any  county,  constable,  collector  of 
the  public  taxes,  or  other  officer,  acting  in  their 
several  offices  under  the  authority  of  the  state, 
are  irregular,  erroneous  and  void;  and  all  such 
writs  may  and  shall,  at  any  time  after  tlie  serv- 
ice, be  quashed  (upon  motion)  by  the  court  to 
which  they  are  returnable,  the  said  court  being 
ascertained  of  the  truth  of  the  fact,  by  affidavit 
or  otherwise." 

The  third  section  of  the  act  provides : 
"The  court,  besides  quashing  the  said  writs, 
may  and  shall  award  treble  costs  to  the  defend- 
ant or  defendants  in  such  writs;  and  also,  ac- 
cording to  their  discretion,  order  an  attachment 
against  any  prothonotary  or  clerk,  who  shall 
make  out  or  grant  any  such  writ,  knowing  the 
same  to  be  for  goods  or  chattels  taken  in  execu- 
tion, or  seized  as  aforesaid." 

[2]  It  is  clear  that  the  plaintiff,  as  the 
owner  of  the  cattle  in  question,  was  prohibit- 
ed from  issuing  the  writ  of  replevin  against 
the  defendant  who  seized  and  held  the  cat- 
tle in  his  official  capacity  as  state  veteri- 
narian. The  plaintiff  does  not  deny  that  the 
defendant  is  state  veterinarian,  and,  as  such, 
is  a  state  officer.  It  is  conceded  that  in  tak- 
ing possession  of  plaintifTs  cattle,  the  de- 
fendant was  acting  in  his  official  capacity, 
and  hence  "under  the  authority  of  the  state," 
and  therefore  the  writ  was  "irregular,  er- 
roneous, and  void,"  and  was  properly  quash- 
ed. But  it  is  contended  by  the  plaintiff  that 
the  defendant  seized  the  property  without 
process  issued  by  any  court  and  without 
legal  authority,  and  that  he  cannot  take  ref- 
uge behind  bis  office  and  title  to  prevent  the 
recovery  of  the  property  in  an  action  of  re- 
plevin. This  contention  Is  wholly  untenable, 
either  on  principle  or  precedent  The  ap- 
propriate remedy,  as  is  well  settled,  for  an 
Illegal  or  unauthorized  act  committed  by  an 
officer  acting  In  his  official  capacity,  is  an 
action  of  trespass,  unless  a  special  remedy 
is  given  by  statute.  If,  as  the  plaintiff  al- 
leges, the  defendant  was  without  authority 
or  transcended  his  authority  under  the  act 
of  1913,  he  was  a  trespasser;  but  the  plain- 
tiff must  seek  redress  for  the  Injury  in  an 
appropriate  action.  He  cannot  set  up  the 
illegality  or  irregularity  of  the  seizure  of  his 
property  in  this  action;  the  remedy  is  tres- 
pass. Stiles  T.  Oriffitti,  3  Teates,  82;  Pott 
v.  Oldwine,  7  Watts,  173;  Elklns  v.  Gries- 
emer,  2  Penny.  62;  McJunkln  v.  Mathers,  15S 
Pa.  137,  27  Atl.  873. 

For  the  reasons  stated,  the  order  quash- 
ing the  writ  of  replevin  la  a  firmed. 


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101  ATIiAMTIO  REPORTER 


(Pa. 


(2S7  P&.  SOI) 

STANTON  et  bL  T.  CITT  OF  PITTSBURGH. 

(Sapreme  Court  of  PennsylTania.    April  16, 
1917.) 

1.  Mttnicipai.  Gospobations  «s>22S(4)— Rxo- 

ULATION  OF'MaBKJCT  HoUBES— AcTS  OF  AD- 
IIINIBTRATITE   OfFICEB— EMTECT. 

Act  March  7,  1901  (P.  L.  20),  giving  cities 
of  the  second  class  the  power  to  provide  and  en- 
force suitable  market  regulations  as  the  council 
may  prescribe  places  the  exclusive  custody  of 
market  house  property  in  the  council,  and  the 
use  and  regulation  thereof  can  be  effected  only 
by  the  corporate  act  of  the  council  and  the 
mayor  by  a  duly  enacted  ordinance,  so  that  the 
unauthorized  acts  of  the  city's  administrative 
officers  in  appropriating  to  other  use  real  estate 
conveyed  to  it  for  public  market  uses  on  condi- 
tion that  should  it  cease  to  be  continued  in  such 
use  it  should  revert  to  the  grantor,  could  not 
divest  it  of  title. 

2.  Dbeds   «s>168— Condition   Subbeqiheniv— 

FORrEITUBE. 

Plaintiffs  claiming  a  forfeiture  for  breach  of 
&  condition  subsequent  contained  in  a  convey- 
ance of  land  to  a  municipality  must  clearly  and 
strictly  establish  the  breach,  as  courts  of  law 
lean  against  a  forfeiture,  and  as  forfeitures 
are  so  odious  in  equity  that  they  will  be  en- 
forced only  in  a  dear  case,  and  never  in  a 
doubtful  case. 

8.    EJJKCTMKNT  ^=>10d— BBEACH   OF  CONDITION 

Subsequent— Vebdict. 
In  ejectment  for  land  conveyed  to  a  mu- 
nicipality on  condition  that  it  should  use  it  for 
public  market  purposes,  and  that  if  it  should 
be  appropriated  to  any  other  use  the  estate 
should  revert  to  the  grantor  and  his  heirs, 
where  it  appeared  that  the  property  had  been 
temporarily  used  as  a  public  playgrounds,  with 
the  permission  of  the  city's  administrative  offi- 
cers, but  it  did  not  appear  that  the  city  council, 
as  sole1.v  empowered  thereto  by  Act  March  7, 
1901  (I*.  Ia  20),  had  ever  autliorized  its  an^ro- 
priation  to  such  use  or  ever  had  notice  that  It 
was  being  put  to  such  use,  a  verdict  was  prop- 
erly directed  for  the  defendant  city. 

Appeal  from  Court  of  Common  Pleas,  Alle- 
gheny County. 

Ejectment  by  Lewis  Stanton  and  others 
against  the  City  of  Pittsburgh  for  a  parcel  of 
land  situated  In  that  city.  Verdict  for  de- 
fendant by  direction  of  the  court,  and  Judg- 
ment thereon,  and  plaintiffs  appeal.  Af- 
firmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  MOSCHZISKER,  PRAZER,  and 
WALLING,  JJ. 

Asa  Lt.  Carter,  J.  Boyd  Duff,  and  Richard 
Townsend,  all  of  Pittsburgh,  for  an;>ellants. 
Charles  A.  O'Brien  and  B.  J.  Jarrett,  both  of 
Pittsburgh,  for  appellee. 

BROWN,  C.  J.  James  Adams,  by  deed  dat- 
ed May  1,  1833,  and  duly  recorded,  conveyed 
to  a  municipal  corporation  known  as  the 
"Burgess  and  Council  of  the  North  Liberties 
of  Pittsburgh"  certain  real  estate,  the  title 
to  which  Is  involved  in  this  ejectment.  The 
borough  of  North  Liberties  was  consolidated 
'  with  the  city  of  Pittsburgh  by  act  of  assem- 
bly approved  April  1,  1837  (P.  L.  132).  The 
grant  of  the  land  had  annexed  to  it  the  fol- 
lowing condltioi)  subsequent: 


"Provided  always  nevertheless,  and  It  is  ex- 
pressly covenanted  and  agreed  by  the  said  par' 
ties  of  the  second  part  (the  borough)  for  them- 
selves and  their  succeasois  to  and  with  the  said 
parties  of  the  first  part  (James  Adams  and  his 
wife),  their  heirs,  executors  and  administrators, 
and  it  is  hereby  declared  to  be  one  of  the  ex- 
press provisions  and  conditions  of  this  grant 
that  they,  the  said  parties  of  the  second  part, 
and  their  successors,  shall  and  will  hold,  occupy, 
use,  possess  and  enjoy  the  said  described  lots 
and  pieces  of  ground  hereby  granted  or  intended 
so  to  be,  with  the  appurtenances,  aa  a  market 
place  and  for  the  purposes  of  a  public  market, 
for  the  use  of  the  citizens  of  the  borough  afore- 
said, and  the  same  is  hereby  appropriated  solely 
and  exclusively  for  that  purpose,  aud  for  no 
other  purpose  whatever:  Provided,  that  the  said 
parties  of  the  second  part  arc  hereby  permitted 
to  dig  and  excavate  cellars  under  and  for  the 
use  of  stalls  in  the  said  market,  and  build,  pat 
op  and  erect,  over  part  of  Uie  market  house 
hereinafter  mentioned  to  be  built  and  erected  on 
the  lots  aforesaid,  a  suitable  and  convenient 
council  chamber  for  the  meetings  and  the  use 
of  the  burgess  and  council  aforesaid,  and  for 
no  other  purpose  whatever,  the  said  chamber  to 
be  constructed  so  as  not  to  obstruct  the  free 
use  and  enjoyment  of  the  market  place  afore- 
said; and  it  is  hereby  covenanted  and  agreed 
by  the  said  parties  of  the  second  part,  for  them- 
selves and  their  successors,  to  and  with  the  said 
parties  of  the  first  part,  their  heirs,  executors 
and  administrators,  and  it  is  hereby  expressly 
declared  to  be  a  further  provision  and  condi- 
tion of  this  grant  that  the  said  parties  of  the 
second  part  will  and  shall  immediately  build  and 
erect  a  suitable  and  convenient  market  house 
on  the  lots  aforesaid,  to  be  used  as  a  public 
market  house,  as  aforesaid,  and  that  they,  the 
said  parties  of  the  second  part,  or  their  succes- 
sors, shall  and  will  not  bargain,  sell,  convey, 
lease,  di-spose  of,  or  appropriate  any  of  the  said 
described  lots  hereby  granted  or  any  part  there- 
of to  or  for  any  otiier  purpose  than  that  of  a 
public  market  and  the  purposes  specified,  as 
aforesaid;  and  it  is  hereby  covenanted  and 
agreed,  and  it  is  hereby  expressly  declared  to 
be  another  condition  of  this  grant,  that  if  the 
said  parties  of  the  second  part  or  their  succes- 
sors sholl  at  any  time  hereafter  bargain,  sell, 
convey,  lease,  dispose  of  or  appropriate  the  said 
described  lots  hereby  granted  or  any  part  there- 
of, or  the  buildings  thereon  erected  or  intended 
so  to  be,  to  any  person  whatsoever  or  for  any 
other  purpose  than  that  specified,  as  aforesaid. 
then  and  in  such  event  this  indenture  and  the 
estate  hereby  granted  shall  cease  and  become 
null  and  void  and  of  no  effect,  and  the  said  es- 
tate and  lots  and  pieces  of  eround  hereby  grant- 
ed, with  the  appurtenances,  shall  instantly  re- 
vert to  the  donor  and  his  heirs.    •    •    •  " 

The  plalntlffa,  as  heirs  of  James  Adams, 
base  their  right  to  recover  on  the  ground  that 
the  city  of  Pittsburgh  has  committed  a  breach 
of  the  foregoing  condition,  in  that  the  land, 
has  been  used  for  other  than  market  house 
purposes,  (1)  part  of  It  by  the  Plttsburgji 
Playground  Association,  (2)  another  part  of  It, 
under  lease,  for  the  sale  of  meats,  etc.  The 
defendant  ofTered  no  testimony,  and,  at  the 
close  of  much  evidence  produced  on  the  part 
of  the  plalntltTs,  the  conrt  directed  a  verdict 
for  defendant  by  affirming  its  point  asking  for 
the  same.  This  was  followed  by  Jadgment  on 
the  verdict 

[11  No  evidence  was  offered  by  plaintiffs 
showing  that  the  mayor  or  councils  of  the 
city   of  Pittsburgh,  by   any   affirmative  or 


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823 


formal  act,  ever  authorized  the  use  of  the 
land  for  any  other  than  market  house  pur- 
poses. In  strict  accordance  with  the  condi- 
tions of  the  deed  from  Adams,  and  our  review 
of  the  evidence  and  of  the  otTers  made  by 
the  platntUFs.  which  were  rejected,  has  led  us 
to  the  conclusion  of  the  learned  court  below, 
that  the  duly  constituted  municipal  author- 
ities have  done  nothing  in  relation  to  the 
pnqperty  in  controversy  that  would  work  a 
forfeiture  of  the  title  to  it.  Nothing  more 
appears  from  the  evidence  than  that  certain 
administrative  officers  of  the  city  bad  permit- 
ted the  temporary  use  of  part  of  the  proper- 
ty by  the  playground  association  for  play- 
ground purposes.  But  this  was  not  suffi- 
cient for  recovery  by  the  plaintiffs.  The 
defendant  Is  a  city  of  the  second  class,  gov- 
erned by  the  act  of  March  7,  1001  (P.  U  20), 
which  provides  that  It  shall  have  the  power 
to  lease,  sell,  and  convey  Its  real  property, 
to  make  all  contracts  In  relation  thereto,  to 
provide  and  enforce  suitable  general  market 
regulations,  to  contract  with  any  person  or 
Iiersons,  or  association  of  persons,  companies 
or  corporations,  for  the  erection  and  regula- 
tion of  market  houses  and  market  places,  on 
such  terms  and  conditions,  and  in  such  man- 
ner as  councils  may  prescribe.  ThU  legisla- 
tion places  the  custody  of  market  house  prop- 
erty in  the  exclusive  control  of  councils,  and 
the  disposition,  regulation,  and  use  of  the 
same  can  be  effected  only  by  the  corporate 
act  of  councils  and  the  mayor,  by  an  ordi- 
nance duly  enacted.  There  is  no  proof  what- 
ever that  the  councils  authorized  the  acts 
upon  which  the  plaintiffs  rely  for  recovery, 
either  directly  or  by  any  delegation  of  power 
to  an  administrative  officer ;  and  it  cannot  be 
successfully  contended  that  the  unauthorized 
act  of  an  administrative  officer  of  a  municipal- 
ity can  divest  its  title  to  valuable  property. 

[2]  As  plaintiffs  are  claiming  a  forfeiture, 
they  must  clearly  and  strictly  establish  It. 
Courts  of  law  lean  against  it,  and  it  is  so 
odious  in  equity  that  it  will  be  enforced  only 
in  ft  clear  case,  and  never  in  a  doubtful  one. 
Newman  v.  Ruttcr,  8  Watts,  51;  McKIssick 
V.  Pickle,  16  Pa.  140;  Pickle  v.  McKIssick, 
21  Pa.  232;  Wick  r.  Bredln,  180  Pa.  83,  42 
Atl.  17;  Moss  V.  Pittsburgh,  203  Fed.  247, 
121  C.  C.  A.  445. 

[3]  By  the  terms  of  the  condition  in  the 
grant  a  forfeiture  can  be  declared  only  If  the 
dty  of  Pittsburgh  shall  "bargain,  sell,  con- 
vey, lease,  dispose  of,  or  appropriate  the  said 
described  lots  hereby  granted,  or  any  part 
thereof,  or  the  buildings  thereon  erected  or 
intended  so  to  be,  to  any  person  whatsoever, 
or  for  any  other  purpose  than  that  specified 
as  aforesaid."  As  already  stated,  nothing  is 
to  be  found  in  the  evidence  submitted  by 
the  plaintiff  showing  that  the  city  of  Pitts- 
burgh had  violated  the  foregoing  condition, 
and  no  rejected  offer  of  the  plaintiff  would 
have  shown  that  It  had  done  so.    Though 


the  record  is  voluminous  and  the  assignmentt 
of  error  very  numerous,  the  whole  situation  Is 
thus  well  briefly  summarized  by  the  learned 
court  below  In  its  opinion  denying  the  mo- 
tions for  a  new  trial  and  for  Judgment  jion 
obstante  veredicto: 

"The  plaintiffs'  case  then  rests  en  an  attempt 
to  show  that  the  councils  and  mayor  had  notice 
of  and  ratified  the  temporary  and  nnauthorizod 
use,  and  thereby  committed  a  breach  of  the  con- 
dition of  the  deed  and  a  forfeiture  of  the  title. 
Much  latitude  was  given  in  the  reception  of  evi- 
dence in  order  to  show  notice,  if  any,  to  cooncil 
and  the  mayor  or  of  any  affirmative  act  on  the 
part  of  the  proper  constituted  authority  of  the 
city  that  would  show  any  ratification  of  the 
temporary  use  of  the  land  for  playground  pur- 
poses. The  evidence  shows  that  no  notice  of 
any  kind  was  given  to  or  received  by  council 
for  the  use  of  the  land  for  playground  pur- 
poses or  that  any  action  was  ever  taken  in  re- 
lation to  the  use  of  the  land  for  other  purposes 
than  those  of  a  market  house.  The  only  amrma- 
tive  act  of  the  council  which  had  any  indirect 
twnring  on  the  issue  involved  was  that  council 
made  general  appropriations  in  quite  large 
amounts  for  recreation  grounds  or  recreation 
purposes:  for  example,  in  the  year  1010  the 
sum  of  $65,610  was  an  item  in  the  general  ap- 
propriation bill  for  recreation  grounds.  No  ap- 
propriation was  ever  made  bf  council  to  any 
playground  association.  The  city  had  a  number 
of  recreation  grounds  and  they  were  located  in 
many  different  places  within  the  city  limits. 
The  only  specific  act  in  relation  to  the  matter 
of  appropriations  and  to  the  playground  asso- 
ciation is  the  drawing  of  small  amounts  on  re- 
quest of  the  playgroand  association  that  the  con- 
troller considered,  and  that  actually  was,  a 
trespasser  on  the  city  property.  There  is  no 
evidence  in  the  case  that  council  had  any  knowl- 
edge when  the  appropriations  were  made  that 
any  part  of  the  Adams  market  property  was  be- 
ing used  for  playground  purposes.  The  burden 
was  on  the  plaintiff  to  snow  that  this  particu- 
lar playground  was  induded  as  one  of  the  par- 
ticular subjects  of  the  appropriation  for.  recrea- 
tion grounds.  The  city  defendant  cannot  be 
l)ound  by  an  unauthorized  act  of  the  dty  con- 
troller or  his  interpretation  of  his  authonty  In 
paying  out  money  on  a  question  affecting  the 
city's  right  to  its  real  estate  which  would  cause 
a  forfeiture  thereof.  The  condition  of  the  deed 
is  'that  if  the  said  parties  of  the  second  part 
or  their  successors  shall  at  any  time  hereafter 
bargain,  sell,  convey,  lease,  dispose  of  or  ap- 
propriate said  described  lots,  or  any  part  there- 
of, to  any  other  person  or  for  any  other  purpose 
than  specified.  *  *  *'  The  plaintiffs  are 
seelting  to  enforce  a  forfeiture  for  a  breach  of 
the  above  conditions.  We  find  no  evidence  or 
exclusion  of  offers  of  evidence,  if  received,  that 
would  canse  a  submisRion  to  a  Jury,  or  that 
would  or  ought  to  sustain  a  verdict  for  plain- 
tiffs." 

Judgment  affirmed. 


(1B7  P«.  607) 

STAMFORD  ROLLING  MILLS  CO.  t.  KRIB 
R.  CO. 

(Supreme  Court  of  Pennsylvania.     April  16, 
1017.) 

1.  Affeai.  and  Bbbob  «=>99— Dscisions  Rk- 
viswABLK  —  Dissolution  or  Fobbioh  At- 
tachment. 
An  appeal  from  an  order  dissolving  a  for- 
eign attachment  will  be  entertained  where  tiie 
facts  are  not  in  dispute  and  the  question  pre- 
sented is  purely  one  of  law. 


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101  ATLANTIC  RJBPORTBE 


(Pa. 


2.  Attachment  «=»47(2)— Bubden  of  Pboof— 
Requisite  Facts. 

The  burden  of  proof  is  upon  an  attaching 
c;:editor  to  establish  the  facts  necessary  to  main- 
tain the  attachment. 

3.  Attacrubnt  €=363  —  Goods  in  Tbansit  — 
Statute. 

Where  goods  have  been  shipped  under  a  ne- 
gotiable bill  of  lading,  they  are  not  subject  to 
foreign  attachment  while  in  transit,  or  after 
their  stoppage  in  transit,  whether  the  carrier 
continues  to  hold  them  as  carrier,  or  as  a  ware- 
hoDSpman  or  bailee,  as  Act  March  11,  1909  (P. 
Ii.  24)  $  25.  relating  to  warehouse  receipts,  and 
Act  May  19,  1915  (P.  L.  654)  t  39,  relating  to 
the  sale  of  goods,  are  identical  in  effect  with 
Act  June  0,  1911  (P.  L.  843)  |  24,  expressly  pro- 
tecting such  goods  from  attachment,  unless  the 
bill  of  lading  has  been  surrendered  or  its  nego- 
tiation enjoined. 

4.  CoMUEBCE  ®=»81"— Attachment— Goods  in 
Iktebstatb  Commerce— State  Laws. 

Act  June  9,  1911  (P.  L.  843)  |  24,  providing 
that  where  goods  are  delivered  to  a  carrier  and 
a  negotiable  bill  of  lading  is  issued  they  cannot 
thereafter  be  attached  while  in  the  carrier's 
possession  by  garnishment  or  otherwise,  unless 
the  bill  is  first  surrendered  to  the  carrier  or  its 
negotiation  enjoined,  docs  not  interfere  with  in- 
terstate commerce  in  respect  to  the  attachment 
of  cars  within  the  state,  though  engaged  in  in- 
terstate commerce. 

Appeal  from  Cotirt  of  Common  Pleas,  Sus- 
quehanna County. 

Action  by  the  Stamford  Boiling  Mills  Com- 
pany against  Jacob  L.  Lipton,  doing  business 
under  the  name  of  the  Acme  Iron  &  Steel 
Company,  with  writ  of  foreign  attachment 
against  the  Erie  Kallroad  Company,  gar- 
nishee. From  an  order  dissolving  the  at- 
tachment, plaintiff  appeals.    Affirmed. 

Argued  before  BBOWN,  C.  J.,  and  MES- 
TREZAT,  POTTEJB,  FBAZER,  and  WAL- 
LING, JJ. 

R.  W.  Archbald,  of  Scranton,  J.  T.  Brinton, 
of  Philadelphia,  and  E.  R.  W.  Searle,  of 
Montrose,  for  appellant  William  A.  Skinner, 
of  Susquehanna,  for  appellee. 

POTTER,  J.  The  Stamford  Rolling  MUs 
Company,  a  corporation  of  the  state  of  Dela- 
ware, issued  a  writ  of  foreign  attachment  In 
the  court  of  common  pleas  of  Susquehanna 
county.  Pa.,  against  Jacob  L.  Lipton,  doing 
business  as  the  Acme  Iron  &  Steel  Company, 
defendant,  and  the  Erie  Railroad  Company, 
as  garnishee.  It  appears  that  on  May  23, 
1916,  the  Acme  Iron  &  Steel  Company  shipped 
from  Cleveland,  Ohio,  over  the  New  York, 
Chicago  &  St.  Louis  Ballway  and  Its  connect- 
ing lUies  a  carload  of  "copper  scrap,"  consign- 
ed to  Its  own  order  at  Sprlngdale,  Conn., 
directing  that  notice  be  given  to  plaintiff  at 
Its  New  York  office.  The  railroad  delivered 
to  the  shipper  what  is  known  as  an  order  bill 
of  lading  for  the  contents  of  the  car.  The 
bill  of  lading,  with  a  sight  draft  attadied, 
was  presented  to  plaintiff  on  May  25,  1916, 
but  payment  was  refused.  Thereupon  de- 
fendant directed  the  carrier  to  stop  the  ship- 
ment in  transit,  and  on  or  about  June  10, 
1916,  the  car  was  stopped  at  Susquehanna, 


Pa.,  while  In  possession  of  the  Erie  Railroad 
Company.  On  June  2S,  1916,  the  present 
writ  of  foreign  attachment  was  Issued  to  at- 
tach the  contents  of  the  car,  and  the  railroad 
company  was  summoned  as  garnishee.  Upon 
petition  of  the  latter,  a  rule  to  show  cause 
why  the  attachment  should  not  be  dissolved 
was  granted,  an  answer  ffied  and  depositions 
taken,  and  an  order  made  dissolving  the  at- 
tachment on  the  ground  that  the  bill  of  lad- 
ing was  negotiable,  and  that,  as  the  bill  had 
not  been  surrendered  to  the  carrier  or  its 
negotiation  enjoined,  the  goods  coold  not  be 
attached. 

[1]  Plaintiff  has  appealed,  and  counsel  for 
appellee  has  filed  a  motion  to  quash  the  ap- 
peal on  the  ground  that  it  does  not  He  to  an 
order  dissolving  a  writ  of  foreign  attachment. 
If  It  were  necessary  to  review  the  decision 
of  the  court  below  upon  any  question  of  fact, 
this  appeal  would  not  be  entertained.  But 
the  fifth  assignment  of  error  brings  before 
us  the  entire  proceeding  and  shows  the  basis 
of  the  court's  action  in  dissolving  the  at- 
tachment. There  Is  no  conflict  as  to  evi- 
dence, no  question  as  to  credibility  of  wit- 
nesses, no  fiicts  in  dispute.  The  question 
presented  Is  purely  one  of  law,  and  as  sucb 
it  may  be  reviewed.  By  plaintiff's  answer 
it  Is  expressly  admitted  that  the  bill  of  lad- 
ing was  a  negotiable  Instrument  Being 
negotiable,  section  24  of  the  act  of  June  9, 
1911  (P.  L.  843),  protects  the  goods  which  it 
represents  from  attachment  or  garnishment, 
"unless  the  bill  be  first  surrendered  to  tlie 
carrier  or  its  negotiation  enjoined."  Tbe 
garnishee  avers  In  Its  petlUon  that  the  bill 
has  not  been  surrendered  to  it  and  that  its 
negotiation  has  not  been  enjoined.  Tlila 
averment  is  not  denied  by  the  answer,  and 
there  is  neither  allegation  nor  proof  that  it 
has  been  surrendered  or  that  Its  negotiation 
has  been  enjoined.  The  burden  of  proof  was 
upon  the  attaching  creditor  to  establish  the 
facts  necessary  to  maintain  the  attachment 

[2, 3]  Whether  the  garnishee,  after  the 
stoppage  in  transit  of  the  goods,  continued  to 
hold  them  as  carrier,  or  was  then  to  be  re- 
garded as  a  warehouseman  or  mere  bailee, 
the  result  Is  the  same.  The  act  of  March  11, 
1909  (P.  L.  24)  S  25,  relating  to  warehouse  re- 
ceipts, and  the  act  of  May  19,  1915  (P.  L.  654) 
I  39,  relating  to  the  sale  of  goods,  both  con- 
tain provisions  on  the  subject  under  discus- 
sion which  are  identical  with  the  provision 
of  the  act  of  1911.  The  language  of  tbe 
statutes  Is  plain,  and  leaves  no  room  for  con- 
struction. Unless  the  bill  of  lading  has  been 
surrendered  or  its  negotiation  enjoined,  the 
goods  are  not  subject  to  attachment  The 
court  below  was  therefore  entirely  right  In 
dissolving  the  attachment 

[4]  There  Is  no  merit  In  the  suggestion  that, 
as  this  was  an  Interstate  shipment  the  effect 
to  be  given  to  the  bill  of  lading  is  a  question 
of  general  law.  Even  If  this  were  so,  we  do 
not  know  that  It  would  make  any  difference. 


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MoOINLET  T.  PHILADELPHIA  A  B.  BT.  00. 


^5 


In  tbe  absence  of  a  atatnte  protecting  the 
carrier  under  such  circumstances,  plain 
'Common  sense  would  prerent  the  surrender  ot 
the  goods  under  attachment  while  a  negotia- 
ble bill  of  lading  for  them  was  outstanding, 
which  might  convey  title  to  the  goods  to  a 
third  party.  But  the  plaintiff  In  this  case 
«ought  the  aid  of  a  state  court,  in  pursuance 
■of  a  purely  statutory  remedy,  and  is  bound 
by  the  terms  of  the  state  law.  As  a  matter 
of  fact,  no  federal  statute  has  been  cited 
which  gives  to  a  creditor  the  right  to  a  writ 
■of  foreign  attachment.  Moreover,  our  act 
■of  Idll  in  no  way  Interferes  with  interstate 
■commerce.  On  the  contrary,  its  ^ect  is  to 
prevent  interference  which  might  otherwise 
be  attempted  by  attachment  of  goods  In 
transit.  In  Penna.  R.  R.  Co.  v.  Hughes,  191 
U.  S.  477,  488,  24  Sup.  Ct  132,  135  (48  U  Ed. 
^268),  Mr.  Justice  Day  said: 

"It  is  well  settled  tbat  the  state  may  make  val- 
id enactments  in  the  exercise  of  its  legislative 
power  to  promote  the  welfare  and  convenience 
■of  its  citizens,  although  in  their  operation  they 
may  have  an  effect  upon  interstate  traffic." 

In  Davis  v.  Cleveland,  Clndnnatt,  Chicago 
A  St  Louis  Ry.  Co.,  217  U.  S.  167,  177,  30 
Sup.  Ct  463,  469  (54  L.  Ed.  708,  27  L.  R.  A. 
[N.  8.]  823,  18  Ann.  Cas.  907),  It  was  ex- 
pressly held  that  cars  engaged  In  interstate 
commerce  may  be  attached  under  state  laws. 
Mr.  Justice  McEenna  said: 

"It  is  very  certain  that  when  Congress  en- 
acted tbe  Intel-state  Commerce  Law  (Act  Feb. 
4,  1887,  e.  104,  24  Stat  379)  it  did  not  intend 
to  abrogate  the  attachment  laws  of  the  states." 

Counsel  for  appellant  also  argues  that  tbe 
restriction  applies  only  to  goods  In  transit, 
and  tbat  if  stopped,  as  they  were  In  this  case, 
tbe  protection  ceases,  and  they  become  liable 
to  attachment  The  statute,  however,  ap- 
plies so  long  as  the  goods  are  in  the  posses- 
sion of  the  carrier.    The  language  is: 

"If  goods  are  delivered  to  a  carrier  by  the 
■owner,  •  •  •  and  a  negotiable  bill  is  issued 
for  them,  they  cannot  thereafter,  while  in  the 
possession  of  the  carrier,  be  attached  by  gar- 
nishment or  otherwise." 

Aside  from  this,  as  previously  stated  herein, 
even  if  the  capacity  in  which  the  carrier 
holds  tbe  goods  be  changed,  by  tbe  stoppage 
In  transit  to  tbat  of  warehouseman,  or  of 
bailee  generally,  the  acts  of  March  11,  1909, 
and  May  19, 1915,  above  cited,  would  continue 
tbe  exemption. 

The  assignments  of  error  are  overruled, 
and  tbe  Judgment  is  affirmed. 


{in  Pa.  si» 

UcOINLET  et  aL  V.  PHILADELPHIA  ft  R. 
RT,  CO. 

<Snpreme  Court   of   Pennsylvania.     April   16. 
1917.) 

1.  Railboaos     <S=>282(11)  —  Neouoenck  — 
Shoohno  of  Tbespasseb— Evidence. 

In  an  action  against  a  railroad  for  injury  to 
a  boy  negligently  shot  by  defendant's  special  of- 
ficer while  stealing  a  ride  on  a  freight  train, 
case  held  for  the  jtury. 


2.  Daiiaoxs  «=»99— Isjuxt  to  iNrAira  Son— 
Amount. 

The  father  of  the  injured  boy,  suing  jointly 
with  the  son,  was  entitled  to  recover  compensa- 
tion for  the  loss  of  the  son's  wa^es  between  the 
time  of  the  injury  and  his  majority. 

3.  Dauaoes  <3=326,  172(1)— Pkbsonai.  Iitjubt 
— Fbtubb  Eabninob. 

A  minor  suing  for  personal  injury  may  re- 
cover for  future  loss  of  earnings,  in  determining 
the  amount  of  which  tbe  jury  may  consider  what 
he  had  earned  after  the  accident  and  before  his 
disability  became  permanent 

4.  Tbial   «=»27^lNsTBuoTiONs — Objection. 

Counsel  must  call  the  court's  attention  to  an 
erroneous  reference  to  any  fact  stated  in  its 
charge,  so  that  it  may  be  corrected  before  the 
jury  retires,  and  otherwise  it  cannot  be  taken 
advantage  of. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  James  M.  McGinley,  by  his 
father  and  next  friend,  Neil  McGinley,  and 
by  Neil  McGinley,  against  the  Philadelphia 
&  Reading  Railway  Company,  to  recover 
for  personal  injury.  Judgment  for  plain- 
tiffs, and  defendant  appeals.    Affirmed. 

From  tbe  record  It  appeared  that  on  Sep- 
tember 16,  1914,  three  boys  decided  to  go 
to  Tamaqua  to  seek  work.  They  planned  to 
ride  a  certain  freight  train  without  paying 
their  fares.  Tbey  entered  tbe  train  yard  by 
tbe  street  entrance,  passed  the  railroad 
watchman,  asked  him  about  the  train,  walk- 
ed to  a  nearby  point  in  tbe  yard  and  awaited 
tbe  train.  Tbey  boarded  It  while  moving, 
and  tbe  train  did  not  stop  until  halted  a  few 
minutes  later  to  take  off  the  boys.  Their 
intention  to  board  the  train  or  their  presence 
on  it  were  known  at  once.  The  railroad  of- 
ficers were  notified  by  telephone  that  the 
boys  were  on  it,  and  were  ordered  to  take 
them  off.  The  man  who  did  the  shooting 
boarded  the  train  at  or  about  the  same  time 
they  did.  When  the  train  stopped  a  few 
minutes  later,  the  boys  were  found  on  tbe 
bumpers  between  different  cars  some  distance 
apart  Upon  seeing  one  of  tbe  boys  the  of- 
ficer who  did  the  shooting  drew  his  revolver 
and  told  that  boy  to  come  down.  He  did  so. 
In  company  with  the  second  officer  he  walk- 
ed that  boy  forward,  and,  seeing  the  plaintiff 
between  the  two  cars,  said,  "Here  is  another 
fellow,"  and  without  further  word  pointed 
his  revolver  at  tbe  plaintiff  and  sbot  him  as 
he  turned  to  get  off  the  car  on  the  opposite 
side.  There  was  no  felony,  either  comir.it- 
ted  or  Intended,  nor  any  evidence  of  suspi- 
cion of  one.  Tbe  charge  preferred  by  the  offi- 
cers tnunediately  afterwards  was  train 
riding  as  to  one  and  as  to  the  plaintiff  carry- 
ing concealed  weapons.  The  bullet  Altered 
the  boy's  hip  joint  Operation  failed  to  re- 
move It,  and  he  was  maimed  for  life.  He 
was  19  years  old  at  the  date  of  the  accident 
His  earning  capacity  was  almost  totally  de- 
stroyed. The  trial  Judge  charged  the  Jury 
in  part  as  follows: 

If  there  is  to  l>e  a  verdict  against  the  defend- 
ant the  father  is  entitled  to  receive  such  a  sum 


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of  money  as  vill  make  np  to  him  for  the  1o«m  of 
such  wages  as  his  son  probably  would  have  made 
between  the  time  of  the  accident  and  his  twen- 
ty-first birthday,  November  18,  1916.  If  there 
is  to  be  a  verdict  against  the  defendant,  you 
may,  besides  giving  the  young  man  compensa- 
tion for  the  pain  and  suffering  up  to  the  present 
endured,  and  such  as  may  come  on  him  in  the  fu- 
ture, make  allowance  in  respect  to  diminution  of 
his  earning  power ;  that  is,  you  may  compensate 
him  for  his  future  loss  of  earnings.  As  to  what 
those  will  be  the  case  is  not  very  clear.  He  may 
live  to  be  an  old  man ;  be  may  be  cut  down  in 
his  prime;  he  may  die  young.  Just  what  be 
would  earn  as  a  machinist's  helper — I  think  that 
was  his  original  occupation — I  cannot  say.  You 
have  heard  what  the  witnesses  have  said  on  that 
point  and  will  take  it  into  account. 

Verdict  for  plaintiff,  James  M.  McGlnley, 
for  110,000  and  for  Nell  McGlnley  for  $1,- 
000  and  Judgment  thereon. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKBR,  FRAZER,  and  WAIr- 
LING,  JJ. 

William  Clarke  Mason,  of  Philadelphia,  for 
appellant  J.  Morris  Xeakle,  of  Philadel- 
phia, for  appellees. 

PER  CURIAM.  [1-4]  This  case  was  for 
the  Jury,  and  the  learned  trial  Judge  would 
have  erred  if  be  had  afflrmed  defendant's 
point  asking  that  a  verdict  be  directed  in  Its 
favor.  Complaint  is  made  of  certain  por- 
tions of  the  charge  as  inaccurately  referring 
to  the  testimony.  If  any  fact  was  Inaccu- 
rately or  erroneously  stated  In  the  instruc- 
tions to  the  Jury,  it  was  the  duty  of  counsel 
for  defendant  to  call  the  trial  Judge's  atten- 
tion to  bis  inadvertence,  that  the  same  might 
be  corrected  before  the  Jury  retired.  Nowlla 
T.  Hurwltz,  232  Pa.  154,  81  Atl.  143.  We 
discover  no  error  In  the  trial  Judge's  com- 
ment on  the  testimony,  as  he  left  it  to  the 
Jury  to  freely  determine  what  the  real  facts 
were,  and  to  return  their  verdict  in  accord- 
ance therewith.  While  there  was  no  evi- 
dence of  what  the  plaintiff  bad  earned  be- 
fore he  was  injured,  there  was  testimony 
that  after  the  accident,  and  before  his  disa- 
bility became  permanent,  he  was  earning  $8 
per  week.  That  was  sufficient  for  the  in- 
structions which  are  the  subject  of  the 
fourth  and  fifth  assignments  of  error.  The 
Jury  could  well  have  found  that  the  plain- 
twrs  earning  capacity  before  he  was  crippled 
was  at  least  equal  to  what  it  was  after- 
wards. 

The  assignments  of  error  are  overruled, 
and  the  Judgment  is  afflrmed. 

(267  Pa.  547) 

PRENDERGAST  et  aL  v.  WALLS  et  aL 

(Supreme   Court   of  Pennsylvania.     April   16, 
1917.) 

NtriSANOB  «s>61  — Gakaob  is  Rbbidbmtial 
DisTBicT— Injunction. 
The  operation  of  a  public  service  garage  will 
be  enjoined  where  it  appears  that  the  district 
was  exclusively  residential,  that  the  garage  was 
within  a  short  distance  of  large  church  edifices. 


a  parochial  school  and  modem  houses,  that  it 
will  necessarily  create  noisn,  odors,  and  dan- 
gers, interfere  with  church  services,  reduce  the 
values  of  surrounding  property,  increase  the  in- 
surance rate,  and  tend  to  ue  removal  of  jiersons 
living  in  the  neighborhood. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Bill  in  equity  by  Edmond  F.  Prendergast 
and  others  against  Walter  Walls  and  others 
to  enjoin  the  erection  and  maintenance  of  a 
garage.  From  a  decree  for  plaintiffs,  defend- 
ants appeal.  Appeal  dismissed,  and  decree 
affirmed. 

It  appeared  by  the  record  that  the  defend- 
ants proposed  to  erect  a  one-story  building 
for  automobile  garage  purposes  at  the  south- 
west comer  of  Thirty-Eighth  and  Chestnut 
streets.  In  the  dty  of  Philadelphia.  The 
complainants  were  the  owners  of  property  In 
the  neighborhood. 

The  essential  facts  appear  in  the  six- 
teenth, twenty-first,  twenty-second,  api 
twenty-third  findings  of  fact  by  the  chancel- 
lor as  follows : 

"16.  The  neighborhood  immediately  surround- 
ing the  place  where  the  proposed  garage  is  to 
be  erected  is  exclusively  residential  in  charac- 
ter. It  is  exceptionally  quiet,  well  adapted  for 
persons  desiring  homes  of  modest  size  and  with- 
m  comparatively  short  distance  from  the  central 
portion  of  the  city.  Each  of  the  said  churches 
are  imposing  edifices  of  magnificent  proportions 
and  represent  the  expenditure  of  much  labor  and 
wealth.  Nearly  all  of  the  houses  in  the  region 
are  modem  in  congtructi(Hi,  some  of  them  with 
extensive  lawns,  large  and  architecturally  beau- 
tiful. There  are  no  manufactories  or  factories 
in  the  immediate  vicinity.  The  general  condi- 
tions were  aptly  described  by  Mr.  Carson  whoi 
be  testified  that  it  was  a  'serene,  peaceful,  and 
delightful  region  for  residences  of  people  wish- 
ing to  be  near  to  the  center  of  the  city  who  have 
a  dislike  for  railroad  trains  or  long  rides  on  the 
elevated.'  The  sentiments  inspired  by  their 
homes  and  their  religious  associations,  the  desire 
to  preserve  and  protect  their  dear  ones  and  those 
under  their  charge  in  the  enjoyment  of  the  peace 
and  safety  which  they  presently  possess  alone 
actuate  theplaintiSs  in  the  conduct  of  these  pro- 
ceedings. The  defendants'  motives  do  not  appear 
of  record.  There  are  many  less  expensive  loca- 
tions in  that  vicinity  on  the  market  which  could 
be  used  as  a  public  service  garage  without  con- 
stituting a  nuisance  and  without  injury  to  oth- 
ers." 

"21.  If  this  garage  is  erected  and  operated 
according  to  the  plans  and  specifications,  there 
will  necessarily  be  noises,  odors,  and  dangers. 
Automobiles  will  be  passing  in  and  out  of  the 
said  garage  intermittently  during  the  entire  day 
and  night ;  there  will  be  pounding  upon  metals : 
testing  of  the  engines  at  varying  rates  of  speed 
to  which  will  be  incident  the  continuooa  ex- 
plosions of  gasoline  in  the  motors  of  varied  in- 
tensity; speeding  and  racing  of  motors.  These 
noises  will  occur  during  the  day  and  the  night 
and  would  be  heard  for  various  distances,  de- 
pending upon  the  then  existing  conditions ;  the 
odors  from  the  gasoline  and  oils  will  be  dis- 
agreeable and  offensive;  smoke  will  be  emitted 
from  the  motors  of  the  automobiles  in  varied 
quantities  depending  upon  the  kind  of  machines, 
the  skill  of  the  operator,  the  atmospheric  and 
other  conditions,  all  of  which  would  be  taon 
or  less  noticeable  In  the  immediate  neigfalxuv 
hood  and  unpleasant  to  the  persons  with  whom 
it  came  in  contact.     The  entrance  and  exit  of 


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the  aatomobiles  over  the  Thirty-Bishth  street 
pavement  into  the  garage  during  the  daj  and 
night  'wili  be  dangerous  to  the  pedestrians  (es- 
pecially the  children)  passing  along  those  streets. 
It  will  ex  necessitate  (particularly  in  winter)  the 
more  or  less  continuous  sounding  of  horns,  noise, 
and  confusion.  All  of  these  matters  would  seri- 
ously and  i>ernianently  interfere  with  the  peace- 
ful _  enjoyment  of  the  plaintiffs'  homes  and  the 
residences  of  the  tenants  of  the  properties  be- 
longing to  th«  plaintiff  Penfield;  the  lives  and 
safety  of  the  children  attending  the  parochial 
schools  would  be  endangered ;  the  worshipping 
in  the  several  churches  hereinbefore  specifically 
mentioned,  more  particularly  the  St.  James 
Church,  would  be  seriously  interfered  with ;  the 
beauty  of  the  services  marred.  The  conduct  of 
the  garage  would  result  in  the  congregating  of 
a  number  of  persons  In  and  about  the  property. 
tntis  would  nave  a  pernicious  effect  upon  the 
-children  who  pass  and  repass  the  garage.  The 
storage  of  SOCT  gallons  of  gasoline  in  the  ground 
(the  top  of  the  tank  being  two  feet  below  the 
ground),  the  storage  of  the  automobiles,  the 
keeping  of  the  qnantities  of  oUs  necessary  for 
the  operation  and  lubrication  of  the  automo- 
biles, smoking  by  attendants  and  others,  the  use 
of  electric  current  near  the  gasoline  and  oils,  the 
adjusting  of  carburetors,  replacing  of  tires,  mov- 
ing and  washing  of  the  cars  at  night,  back-fire 
of  motor  cars,  explosions  of  gasoline,  will  all 
result  in  added  danger  from  conflagration.  All 
of  which  will  have  the  effect  of  reducing  the 
values  of  the  properties  surrounding  the  garage 
and  will  tend  to  the  removal  of  the  tenants  pres- 
ently living  in  the  neighborhood.  It  will  in- 
crease the  rates  of  insurance,  will  impose  addi- 
tional burdens  upon  the  surrounding  properties, 
and  will  decrease  the  net  return  therefrom. 

"22.  Defendants  were  duly  notified  that  the 
erection  and  maintenance  of  a  garage  upon  the 
premises  mentioned  would  be  objected  to,  and 
that  proceedings  would  be  instituted  to  restrain 
anch  erection. 

"23.  The  maintenance  of  a  public  service  ga- 
rage at  the  southwest  comer  of  Thirty-Eighth 
and  Chestnut  streets  will  be  a  nuisance,  dis- 
tinctly prejudicial  to  the  welfare,  comfort,  safe- 
ty, and  peace  of  the  persons  residing  in  the 
immediate  vicinity,  to  those  attending  the  schools 
and  to  those  worshipping  in  the  said  churches." 

Tbe  chancellor  reached  the  following  con- 
clusions of  law: 

1.  Plaintiffs  are  entitled  to  the  free  use  and 
enjoyment  of  their  respective  properties  without 
ondue  interference  by  the  defendants.  To  the  ex- 
tent to  which  sucli  use  is  denied  or  interfered 
with  by  the  defi'iidants,  they  create  a  nuisance 
against  which  plaintiffs  are  entitled  to  equitable 
relief. 

2.  Tbe  maintenance  of  a  public  service  gtaeago 
at  the  southwest  corner  of  Thirty-Eightn  and 
Chestnut  streets  will  unreasonably  and  unduly 
interfere  with  the  use  and  enjoyment  by  the 
plaintiffs  of  the  properties  respectively  owned 
and  leased  by  them. 

3.  Plaintiffs  are  entitled  to  an  injunction  per- 
petually restraining  the  defendants  from  main- 
taining a  public  service  garage  at  the  southwest 
corner  of  Thirty-Eighth  and  Chestnut  streets, 
in  the  city  of  Philadelphia. 

The  lower  court  entered  a  decree  perpet- 
nally  restraining  defendants  from  maintain- 
ing or  conducting  a  public  service  garage  at 
the  locality  in  question,  and  placed  the  costs 
of  tbe  proceeding  upon  the  defendants.  De- 
fendants appealed. 

Error  a.sslgned,  among  others,  was  the  de- 
cree of  the  court  i 


Argned  before  BROWN,  C.  J.,  and  STEW- 
ART. MOSOHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

James  W.  Laws,  Elton  J.  Buckley,  and 
Frederick  J.  Geiger,  all  of  Philadelphia,  for 
appellants.  Thomas  Raebom  White,  Hamp- 
ton L.  CarBon,  A.  A.  Hi]:st,  Joseph  Carson, 
John  P.  Connelly,  Meredith  Hanna,  Fred- 
erick C.  Newbourg,  Jr.,  and  William  B.  Bo- 
dine,  Jr.,  all  of  Philadelphia,  for  appellees. 

PER  CURIAM.  This  appeal  is  dismissed 
and  the  decree  affirmed,  at  appellants'  costs, 
on  the  sixteenth,  twenty-first,  twenty-second, 
and  twenty-third  facts  found  by  the  learned 
chancellor  below,  which  were  followed  by 
three  correct  legal  conclusions. 


(S7  Fa.  rm 

In  K  McGAULEX'S  ESTATEL 

Appeal  of  LOVE. 

(Supreme  <3onrt  of  Pennsylvania.    April  10, 
1M7.) 

1.  Wrixs  <S=>634(9)  —  Constbuctiow  of  De- 
vise— VESTEn   Remaindeb. 

Under  a  will  bequeathing  a  life  interest  to 
his  widow  and  directing  that  on  her  death  the 
balance  be  converted  into  money  and  divided 
into  three  equal  parts  and  bequeathing  one  of 
such  parts  to  a  sister  if  living,  or,  if  deceased, 
then  in  equal  parts  to  her  children  and  to  the  is- 
sue of  such  of  them  as  were  then  deceased,  such 
issue  to  take  such  part  as  their  parent  would 
have  taken  if  living,  and  where  the  sister  died 
during  the  lifetime  of  Uie  life  tenant  leaving  two 
children,  the  one  who  predeceased  the  life  ten- 
ant took  a  vested  interest. 

2.  Wills  «=s>030(1)— Constbuctiow  or  Leq- 
ACT— Vested  Rkicainder. 

Where  a  legacy  is  payable  at  a  future  time 
certain  to  arrive  and  not  subject  to  conditions 
precedent,  it  is  vested  where  there  is  a  person  in 
esse  at  the  testator's  death  capable  of  taking 
when  the  time  of  payment  arrives,  although  his 
interest  is  liable  to  be  defeated  by  his  own  death. 

3.  Wills  €=>630(1)— Bequest  to  a  Class- 
Contingent  oB  Vested  Reuaindeb. 

Where  the  bequest  is  to  a  class,  tbe  vesting 
is  not  postponed  because  of  an  uncertainty  as  to 
who  may  constitute  the  class  at  the  time  fixed 
for  the  enjoyment  of  it;  and,  if  there  is  a  pres- 
ent right  to  a  future  possession  which  may  be 
defeated  by  a  future  event  contingent  or  certain, 
there  is  a  vested  estate. 

Appeal  from  Orphans*  Coart,  Philadelphia 
(bounty. 

Robert  J.  Love  administrator  of  the  estate 
of  Rebecca  N.  Love,  deceased,  appeals  from 
a  decree  dismissing  exceptions  to  adjudica- 
tion in  the  estate  of  John  McCauley,  de- 
ceased. Reversed,  with  order  for  distrlba- 
tlon. 

Argued  before  MESTRBZAT,  POTTEHl, 
STEWART,  MOSCHZISKER,  and  FRA- 
ZER, JJ. 

Thomas  F.  McMahon,  of  Philadelphia,  for 
appellant.  Bayard  Henry  and  Thomas 
Stokes,  both  of  Philadelphia,  for  appellee. 

STE:warT,  J.  [1]  The  appeal  in  this  case 
raises  the  single  question  whether  under  the 


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(Pa. 


will  to  be  considered  the  gli?t  to  the  children 
of  testator's  niece,  Anna  Jane  White,  consti- 
tuted a  vested  or  contingent  remainder.  The 
orphans'  court  held  it  to  be  contingent,  and 
made  distribution  accordingly.  The  appel- 
lant insists  this  was  error.  The  portion  of 
the  will  that  gtves  rise  to  the  controversy  is 
found  in  the  latter  part  of  the  sixth  section, 
wherein  testator  makes  disposition  of  a  third 
part  of  his  residuary  estate  not  previously 
disposed  of  in  the  will,  and  which  reads  as 
follows: 

"And  the  remaining  third  part  or  share  of  the 
proceeds  of  my  residuary  estate  I  give  and  be- 
qneath  to  my  sister,  Anna  Jane  White,  if  liv- 
ing, or  her  children  if  she  be  then  deceased,  in 
equal  parts  or  shares,  and  to  the  issue  of  such 
of  them  as  may  then  be  deceased,  such  issue  tak- 
ing, however,  such  part  or  shares  as  his,  her  or 
their  parent  or  parents  would  have  taken  if  liv- 
ing." 

By  a  previous  clause  In  this  same  section 
of  the  will,  testator  had  given  his  wife  a  life 
interest  in  his  entire  estate,  and  had  direct- 
ed that  upon  her  death  the  entire  balance 
then  remaining  of  his  estate  should  be  con- 
verted into  money,  and  divided  into  three 
equal  parts.  He  then  proceeds  to  dispose  of 
these  parte  or  shares  separately.  We  are 
concerned  here  only  with  the  third  given  to 
Mrs.  White  or  her  children. 

The  testator  died  In  1897.  The  widow,  the 
life  tenant,  died  in  1915.  Mrs.  Anna  J. 
White,  the  sister  to  whom,  if  living,  was 
given  the  entire  one-third,  died  in  Novem- 
ber, 1809,  leaving  to  survive  her  two  chil- 
dren, Elizabeth  W.  Weaver  and  Rebecca  N. 
Love,  the  latter  of  whom.  Intermarried  with 
Robert  J.  Love,  died  August  24,  1903,  Intes- 
tate, without  issue,  leaving  to  survive  her  a 
husband,  Robert  J.  Ix)ve,  to  whom  letters  of 
administration  on  the  estate  of  his  deceased 
wife  were  granted.  On  this  state  of  facts 
the  learned  auditing  Judge  held  that  Mrs. 
Love's  right  to  take  was  contingent  on  her 
surviving  the  life  tenant,  and  that,  having 
predeceased  the  life  tenant,  the  latter  having 
survived  until  1915,  she  took  nothing  under 
the  will.  In  this  conclusion  we  cannot  con- 
cur. It  is  In  effect  importing  into  the  gift 
to  the  children,  without  any  warrant  what- 
ever, a  condition  which  the  testator  attached 
to  and  made  Inteparable  from  the  gift  to  the 
mother,  namely,  that  she  was  to  take  at  the 
termination  of  the  life  estate  If  she  was  then 
living.  What  reason  can  there  be  for  Infer- 
ring that  It  was  testator's  intent  to  subject 
this  alternative  gift  over  to  the  children  to 
a  like  condition;  that  is,  survivorship  at  the 
expiration  of  the  life  tenancy?  To  do  so 
would  be  in  defiance  of  accepted  rules  of 
construction  and  make  another  will  for  the 
testator  than  that  he  himself  published  and 
declared.  The  testator  here  attached  such 
condition  to  the  gift  to  the  mother  in  un- 
mistakable terms,  showing  that  he  knew 
how  to  effect  his  purpose  where  that  purpose 
was  to  make  the  gift  contingent  upon  sur- 
vivorship. The  fact  that  he  coupled  no  such 
condition  as  "if  then  living,"  to  the  gift  over 


to  the  children  is  quite  as  conclusive  that  he 
did  not  intend  to  subject  It  to  similar  con- 
tingency. Besides,  the  gift  to  the  children 
was  as  substantive  and  Independent  as  the 
gift  to  the  mother  which  failed,  and  there- 
fore it  Is  to  stand  unaffected  by  the  restric- 
tion or  contingency  that  attached  to  the  for- 
mer. 2  Jarman  on  Wills,  |  447.  The  gift  to 
the  parent  having  failed  because  of  her 
death  during  the  continuance  of  the  life  es- 
tate, this  feature  of  the  will  calls  for  no 
further  consideration,  and  we  may  pass  at 
once  to  a  consideration  of  the  alternative 
gift  "to  her  children,  in  equal  parts  or 
shares,  and  to  the  issue  of  such  of  them  as 
may  then  be  deceased,  such  issue  taking, 
however,  such  part  or  shares  as  his,  her,  or 
their  parent  or  parents  would  Iiave  taken  If 
living."  It  is  upon  the  words  "if  living"  and 
"if  she  be  then  deceased"  that  the  appellee 
relies  as  showing  that  it  was  the  testator's 
intention  to  restrict  the  class  of  children  to 
such  as  might  be  living  at  the  determination 
of  the  life  estate,  and  sndi  issue  of  any  de- 
ceased child  as  might  then  be  living.  Inas- 
much as  Mrs.  Love  died  during  the  continu- 
ance of  the  life  estate,  and  without  Issue 
surviving,  it  is  argued  that  the  gift  to  her, 
as  one  of  a  class,  was  Intended  by  the  testa- 
tor to  be  contingent  upon  her  living  at  the 
period  of  distribution,  or  upon  her  having 
left  issue  who  liad  survived  such  period. 
However  Ingenious  the  argument  that  would 
derive  from  the  words  especially  urged  upon 
our  notice  an  intention  to  make  the  gift  to 
the  issue  contingent,  it  must  fiill  of  its  pur^ 
pose  when  it  is  considered  that  what  Is  re- 
quired in  such  case  is  not  that  the  words  of 
the  will  admit  of  a  possible  or  even  a  rea- 
sonable inference  that  the  testator  Intended 
a  contingent  remainder,  but  that  such  inten- 
tion should  appear  plainly,  manifestly,  and 
indisputably.  Certainly  it  cannot  be  con- 
tended that  the  words  here  employed,  in  the 
connection  in  which  they  appear,  are  so  de- 
monstrative of  a  purpose  to  make  the  gift  to 
the  children  contingent  upon  their  survival, 
as  to  exclude  necessarily  a  contrary  purpose, 
especially  in  view  of  the  fact  that  testator 
knew  how  to  make  such  a  gift  contingent  In 
an  indisputable  way,  as  is  shown  by  the  gift 
that  failed,  the  gift  to  the  mother  "if  Uv- 
ing,"  and  failed  to  attach  any  such  provlsloo 
in  the  gift  to  the  children;  and  In  view  of 
the  further  fact  that  if  such  construction  is 
to  prevail,  it  necessarily  results  that  testa- 
tor died  intestate  as  to  such  interest  as  Mrs. 
Love  would  have  taken  had  she  survived, 
seeing  that  there  is  no  gift  over  should  she 
not  survive  to  take,  and  no  disposition  is 
made  of  that  share.  There  is  no  suggestion 
that  Intestacy  was  Intended.  WhUe  It  is 
true  that  the  law  always  seeks  to  give  ef- 
fect to  a  testator's  purix>se,  and  insists  tliat 
such  purpose  is  to  be  derived  from  the  lan- 
guage he  has  employed,  it  is  no  less  true 
that  the  law  favors  vested  remainders,  so 
much  so  that  it  vrill  presume  such  was  tbe 


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MoCOAOH  ▼.  SHEEHAN 


829 


Intention  of  the  testator,  except  as  the  lan- 
guage shows  Indisputably  the  contrary  In- 
tent. It  necessarily  follows  that,  even  grant- 
ing the  contention  of  appellee  so  far  as  to 
admit  that  the  language  of  the  testator  Is 
not  Inconsistent  with  the  purpose  to  make 
the  gift  to  the  children  contingent.  It  Is,  nev- 
ertheless, because  of  what  we  have  Indicated 
as  sufficient.  If  not  conclusive,  reason  for  de- 
riving a  contrary  Intention,  the  real  effect  Is 
to  be  determined  by  applying  the  established 
rules  of  construction.  So  familiar  are  these 
rules  to  the  professional  mind  that  It  would 
lengthen  this  opinion  to  no  purpose  to  dte 
support  for  the  authority  of  such  as  we  shall 
state,  and  which  we  regard  as  controlling 
here. 

[2]  Where  a  legacy  Is  made  payable  at  a 
future  time,  certain  to  arrive,  and  not  sub- 
ject to  condltlwi  precedent.  It  Is  vested 
where  there  is  a  person  In  esse  at  the  time 
ot  the  testator's  death  capable  of  taking 
when  the  time  arrives,  although  his  Interest 
be  liable  to  be  defeated  altogether  by  his 
own  death. 

[3]  Where  a  bequest  Is  to  a  class,  the  vest- 
ing Is  not  postponed  because  of  uncertainty 
as  to  who.  If  any,  may  be  the  constituents 
of  the  class  at  the  time  fixed  for  the  enjoy- 
ment of  it. 

If  there  Is  a  present  right  to  a  future  pos- 
session, though  that  right  may  be  defeated 
by  some  future  event,  contingent  or  certain, 
there  Is  nevertheless  a  vested  estate. 

These  rules  are  applicable  to  and  must 
govern  this  case.  They  have  been  applied  In 
cases  almost  without  number,  and  while  In 
some  of  the  cases  there  may  be  apparent  de- 
parture from  one  or  more,  certainly  In  none 
of  those  dted  by  the  appellee  have  any  of 
them  been  disregarded  or  their  authority 
questioned  In  any  way.  The  cases  which 
have  been  supposed  at  variance,  or  so  distin- 
guished on  their  facts  as  to  be  outside  the 
operation  of  these  rules,  including  all  those 
cases  relied  upon  by  the  appellee  here,  are 
all  reviewed  and  discussed  at  length  In  the 
recent  case  of  Neel's  Est.,  262  Pa.  394,  97 
Atl.  502,  and  In  Rau's  Est.,  264  Pa.  464,  98 
Atl.  1068,  and  we  feel  that  nothing  can  prof- 
itably be  added  to  what  Is  said  In  those 
cases. 

Our  conclusion  Is  that  under  the  will  of 
John  McCauley  the  gift  to  the  children  of 
testator's  niece,  payable  at  the  latter's  death, 
was  vested  In  such  of  her  children  as  were 
living  at  the  death  of  the  testator.  If  this 
be  correct.  It  must  follow  that  the  share  of 
Hrs.  Rebecca  N.  Love,  one  of  said  children, 
was  not  divested  by  reason  of  her  death  be- 
fore that  ot  her  mother,  and  that  distribu- 
tion of  her  Interest  or  share  should  have 
been  made  to  her  legal  representative,  this 
appellant.  The  judgment  of  the  court  below 
Is  accordingly  reversed,  and  distribution  Is 
ordered  to  be  made  in  accordance  with  the 
view  here  expressed. 


(iST  Pa.  6<0) 
LAND  TITLE  &  TRUST  CO.  v.  Mc- 
GARBITT. 

(Sapreme  Court  of  Pennsylvania.    April  16, 
1917.) 

LiuiTATioN  OF  Actions  €=925(6)  —  Monkt 
Lent. 
An  action  for  money  loaned  by  plaintiff's 
decedent  in  1897,  not  brought  until  1910,  eight 
years  after  decedent's  death,  was  barred  by  the 
statute  of  limitations. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  by  the  Land  Title  &  Trust  Com- 
pany, administrator  d.  b.  n.  c.  t.  a.  of  the  Es- 
tate of  Bridget  Lougbran,  deceased,  substi- 
tuted plaintiff,  against  Joseph  McGarrlty  to 
recover  money  loaned.  From  a  judgment  re- 
fusing to  take  off  a  compulsory  nonsuit, 
plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and 
MOSCHZISKER,  FB.A.ZER,  and  WALLING, 
JJ. 

Henry  A.  Hoefler  and  Michael  Francis 
Doyle,  both  of  Philadelphia,  for  appellant. 
WiUIam  A.  Gray,  of  Philadelphia,  for  appel- 
lee. 

PER  CURIAM.  This  action  was  brought 
upon  a  writing  of  which  the  following  Is  a 
copy:  "Received  of  Mrs.  Bridget  Lougbran 
6000,  payable  at  the  pleasure  of  Joseph  Mc- 
Garrlty." The  paper  was  executed  by  the 
defendant  and  given  to  Mrs.  Lougbran  some 
time  In  1897.  He  got  the  money  from  her 
the  year  before.  He  was  the  only  witness  In 
the  case,  having  been  called  by  the  plaintiff 
as  under  cross-examination.  According  to 
his  testimony,  the  money  was  a  gift  to  him 
by  his  aunt,  but,  even  If  this  were  not  so,  the 
action  on  the  writing  was  barred  by  the  stat- 
ute of  limitations.  Mrs.  Lougbran  died  In 
1902,  and  this  action  was  not  brought  until 
1910. 

The  nonsuit  was  properly  entered,  and  the 
judgment  la  affirmed. 


(267  Pa.  546) 
McCOACH,  Comity  Treasurer,  y.  SHBEHAN, 
Register  of  Wills. 

(Supreme  Ck>nrt  of  Pennsylvania.    April  16, 
1917.) 

1.  CouNTiKS  «=>7S(%)— CooWTT  Officeks  — 

The  fees  and  commissions  of  a  county  regis- 
ter of  wills  payable,  under  Act  July  21,  1913 
(P.  L.  878),  to  the  county  treasurer,  are  not  so 
payable  for  his  benefit  in  his  private  or  official 
capacity,  but  are  paid  into  the  treasury  because 
they  belong  to  the  coimty. 

2.  Counties  <s=»218— Actions  —  Coumty  Or- 

FICEBS. 

An  action  for  money  due  a  county  should 
be  brought  in  its  name,  and  not  in  the  name  of 
its  treasurer,  and  the  treasurer's  appeal  from 
an  unsuccessful  action  brought  in  his  own  name 
would  be  dismissed,  without  prejudice  to  the 
county's  action. 


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101  ATLANTIC  REPOROBB 


(Pa. 


Appeal  from  Conrt  of  Common  Pleas,  Phil-' 
adelphia  County. 

Assumpsit  for  commlsslonB  by  William  Mc- 
Coach,  Treasurer  of  the  County  of  Philadel- 
phia, against  James  B.  Sheehan,  Register  of 
Wills  of  Philadelphia  County.  Judgment  for 
defendant,  and  plaintiff  appeals.  Appeal  dis- 
missed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKEIR,  FRAZER,  and  WAL- 
LING, JJ. 

David  McCoach,  of  Philadelphia,  for  ap- 
pellant. Joseph  Ollfillan  and  Samuel  M. 
Clement,  Jr.,  both  of  Philadelphia,  for  appel- 
lee. 

PER  CURIAM.  If  James  B.  Sheehan,  reg- 
ister of  wills  of  Philadelphia  county,  has  no 
right  to  retain  the  commissions  allowed  him 
by  the  commonwealth  on  collateral  Inherftr 
ance  tax  collected  by  him  for  Its  use,  but 
must  pay  the  same  to  the  county,  under  the 
act  of  July  21,  1913  (P.  L.  878),  it  Is  the  only 
party  to  compel  him  to  pay.  The  learned 
president  Judge  of  the  court  below  recog- 
nized this  in  saying: 

"The  judgment  here  entered  cannot  bind 
the  county  of  Philadelphia.  The  fees  and  coiu- 
missions  of  the  register  are,  by  the  act  of  July 
21,  1913  (P.  L.  878),  made  payable  into  the 
county  treasurer.  They  are  not,  however,  to 
be  paid  into  it  for  the  benefit  of  the  treasurer, 
either  in  liis  private  or  bis  official  capacity. 
They  are  to  be  paid  into  its  treasury  because 
they  belong  to  the  county.  In  Pennsylvania 
the  county  is  a  juridical  person.  Section  3  of 
the  act  of  April  15,  1834  (P.  L.  538),  declares 
that  it  shall  have  capacity  as  a  body  corporate, 
to  sue  and  be  sued  by  its  corporate  name,  nnd 
to  take  and  hold  real  estate  and  personal  prop- 
«rty.  By  section  5  of  the  same  act  it  is  provid- 
-ed  that  'all  suits  by  a  county  shall  be  brought 
and  conducted  by  the  commissioners  thereof, 
and  in  all  suits  against  a  count,r,  process  shall 
be  served  upon  and  defense  made  by  the  oom- 
missioners.'  An  action  for  the  recovery  of  mon- 
'Cy  due  to  a  county  should  therefore  bo  brought 
in  the  name  of  the  county  itself,  and  not  in 
Utat  of  one  of  its  ofBcers,  and  should  be  in- 
stituted in  its  name  by  its  commissioners,  and 
not  by  its  treasurer.  The  latter  has  no  greater 
right  to  sue  for  money  payable  to  him  for  the 
use  of  the  county,  whether  he  is  mentioned  in 
the  prsecipe  for  the  writ  by  his  own  name  alone, 
or  described  by  the  addition  thereto  of  his  of- 
-ficial  title,  than  he  would  have  while  treasurer 
of  a  private  corporation  to  initiate  an  action 
in  his  own  name  for  the  recovery  of  money 
due  to  it.  The  proper  practice  in  cases  of  this 
■character  is  exemplified  in  the  case  of  Allegheny 
County  V.  Stengel,  213  Pa.  493,  63  Atl.  58. 
It  is  to  be  regretted  that  the  precedent  afforded 
by  the  proceedings  there  was  not  followed  in 
this  case,  since,  unless  our  views  on  the  subjects 
above  discussed  commend  themselves  to  the 
proper  county  authorities,  the  whole  matter 
must  be  litigated  again." 

In  view  of  this  correct  conclusion,  the 
court  should  have  gone  further  and  declined 
to  determine  the  questions  raised  by  the  case 
stated  as  not  being  properly  before  It. 
Those  questions  are  not  now  properly  before 
us,  and  we  cannot  pass  upon  them  until  they 
Are  brought  up  on  an  appeal  from  a  Judg- 


ment In  a  case  to  whldi  proper  parties  are 
litigants.  Appeal  dismissed  without  preju- 
dice to  any  right  the  coimty  of  Philadelphia 
may  have  to  recover  the  commissions  which 
wer«  the  subject  of  the  case  stated. 

""^^^  (jCT  p^  495) 

MUTUAL  LOAN  &  SAVINGS  ASS'N  OF 

OHAMBERSBURG  v.  NATIONAL 

SURETY  CO. 

(Supreme  Court  of  Pennsylvania.    April  16, 

1917.) 

Insubance  ®=9285— Fidelttt  Bond— Misrbp- 

resentations — llabilitt. 
A  surety  company  imuing  a  fidelity  bond  in- 
demnifying a  loan  and  savings  association 
against  loss  by  its  treasurer's  misappropriation 
of  funds,  based  upon  the  false  material  decla- 
rations of  the  association's  president  that  a  cer- 
tain character  of  audit  had  been  held  on  the 
treasurer's  books  and  accounts,  which  would 
have  indicated  his  dishonesty,  and  that  it  had 
shown  favorable  results,  was  not  liable  on  the 
bond  for  the  treasurer's  shortage. 

Appeal  from  Cknirt  of  Common  Pleas, 
Franklin  County. 

Assumpsit  on  a  surety  bond  by  the  Mntaal 
Loan  &  Savings  Association  of  C!hamber»- 
burg  against  the  National  Surety  Company. 
Verdict  for  plaintiff  for  $5,988.30,  and  Judg- 
ment thereon,  and  defendant  appeals.  Re- 
versed, and  judgment  entered  for  defendant. 

See.  also,  253  Pa.  351,  98  AU.  600. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

Donald  Tbompewn,  of  Pittsburg,  Charles 
Walter  and  J.  A.  Strlte,  both  of  Chambera- 
bnrg,  Arthur  J.  Stobbart,  of  New  York  City, 
and  George  Calvert,  of  Pittsburgh,  for  appel- 
lant. W.  K.  Sbarpe,  O.  O.  Bowers,  and  Wil- 
liam S.  Hoemer,  all  of  Ghambersburg,  for 
appellees, 

MOSCHZISKER.  J.  In  February,  1912.  the 
defendant  company  executed  and  delivered  to 
the  Mutual  Loan  &  Savings  Association  of 
Ghambersburg  a  fidelity  bond  In  the  sum  of 
$5,000,  indemnifying  the  latter  for  one  year 
against  pecuniary  loss  by  reason  dt  any  mla- 
approprlatloD  of  funds  which  might  be  com- 
mitted by  its  treasurer,  Isaac  Stlne.  This 
obligation  was  renewed  and  In  force  on 
March  3,  1913,  on  which  date  Stlne  died,  a 
defaulter,  owing  over  $8,000  to  the  associa- 
tion. Shortly  thereafter  William  S.  Hoemer. 
the  plaintiff's  attorney,  notified  the  defendant 
of  the  shortage  on  Mr.  Stine's  account  The 
surety  company  denied  liability;  suit  was 
brought  om  the  bond ;  the  case  came  to  trial, 
and  the  verdict  favored  the  plaintiff ;  defend- 
ant has  appealed. 

The  plaintiff  la  a  local  building  and  loan 
association.  Incorporated  under  the  laws  (tf 
Pennsylvania;  its  constitution  stipulates  tihe 
following  o£ScerB:  A  president,  vice  president, 
secretary,  treasurer,  board  of  directors,  and 
an  attorney.     In  addition,  the  by-laws  pro- 


Cs»For  other  caau  laa  aama  topic  and  KEY -NUMBER  la  mil  Ke7-Numb«r*d  Dlawta  and  lBd«x« 


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MUTUAL  U>AN  A  SAVINGS  ASS'K  y.  KATIONAL  SUBETT  OO. 


831 


vide  that  a  "general  manager"  who  "shall 
have  general  charge  and  managonent  of  the 
bnslness,"  shall  be  appointed  by  the  board; 
that  the  president  shall  jierfomi  "such  dntles 
as  usually  appertain  to  that  office";  that 
the  secretary  shall  be  the  custodian  of  the 
papers  and  securities  of  the  association, 
keep  Its  records,  receipt  to  the  members  for 
moneys  paid  by  them,  turning  the  same  over 
to  the  treasurer  at  least  once  in  each  week, 
make  reports  of  the  "finances  and  business 
of  the  association";  and.  finally,  that,  "In 
the  absence  or  disability  of  the  general  man- 
ager, he  [the  secretary]  may  act  in  his  stead." 
The  treasurer  Is  required  to  "deposit  all  mon- 
eys received  by  him  in  the  name  of  the  asso- 
ciation in  some  good  and  solvent  bank,"  to 
keep  accounts,  subject  to  lnsi)ectlon  by  "the 
auditing  committee"  of  the  association,  and 
to  give  a  bond  for  the  faithful  performance 
of  his  duties.  The  attorney  is  required  to 
give  legal  advice  and  to  "attend  to  all  legal 
matters  In  which  the  association  is  interest- 
ed," with  express  "authority  to  enter  the  ap- 
pearance of  the  association  in  any  proceed- 
ing." The  by-laws  further  provide  that  an- 
nually the  prefsldcnt  shall  appoint  three  com- 
petent stockholders  to  act  as  an  auditing  com- 
mittee. 

The  trial  Judge,'  without  objection,  permit- 
ted the  defendant  to  call  Mr.  Hoomer,  the 
attorney  of  the  assodatlou,  "as  under  cross- 
examination,"  and  from  bis  testimony  it  ap- 
pears that  in  December,  1912,  Miss  Bassett, 
Its  secretary,  received,  from  the  bank  where 
Mr.  Stlne  kept  his  treasurer's  accotmt,  no- 
tice to  the  effect  that  interest  was  due  on  a 
loan  which,  some  time  previous  thereto,  the 
latter  was  supposed  to  have  paid  off  with 
funds  specially  appropriated  for  that  pur- 
pose. The  secretary  took  this  notice  to  Mr. 
Hoemer,  as  the  attorney  for  the  association, 
and  he  bad  an  interview  with  one  of  the  of- 
ficers of  the  twnk,  who  Informed  him  that  the 
obligation  In  questlmi  was  still  due  and  unr 
paid.  This  evidently  oiade  Mr.  Hoemer  sus- 
picious, for  he  inquired  as  to  the  treasurer's 
bank  balance,  which  information  was  refus- 
ed. The  attorney  then  called  upon  Mr.  Stlne, 
who  confessed  that  he  had  not  paid  Uie  note, 
and  that  his  failure  In  this  respect  "was  due  to 
bis  not  having  •  •  •  enough  funds  In 
bank  to  pay  it" 

It  appears  that  the  plaintiff  association  had 
no  general  manager;  that  Miss  Bassett,  the 
secretary,  was  in  diarge  of  Its  ofBce,  which 
adjoined  the  private  law  o&ee  of  Mr.  Hoem- 
er; and,  so  far  as  the  evidence  Indicates, 
these  two  looked  after  the  daily  routine  af- 
fairs of  the  concern.  Although  the  secretary 
had  the  knowledge  already  Indicated  of  the 
treasurer's  default,  and  turned  the  matter 
over  to  the  association's  attorney  for  further 
Investigation,  yet  the  other  officers  and  di- 
rectors of  the  institution  were  not  officially 
Informed  upon  the  subject  until  after  Mr. 
Stlne's  decease. 


The  bond  in  suit  provides.  Inter  alia,  "that. 
If  the  employer  or  any  officer  becomes  aware 
of  the  employs  •  •  •  committing  any 
•  •  •  unlawful  act,  the  surety  shall  be  Im- 
mediately notified";  further,  that  "upon  be- 
comlhg  aware  of  any  act  whidi  may  be  made 
the  basis  of  a  claim  hereunder,  the  employer 
shall  give  immediate  notice  thereof  to  the 
surety."  As  already  stated,  no  notice  was 
given  to  the  defendant  company  by  the  plain- 
tiff assoclatlmi  of  Its  treasurer's  default  un- 
til after  the  tatter's  death.  It  appears  that 
Mr.  Stlne,  who  enjoyed  good  standing  and 
financial  credit  la  life,  died  Insolvent ;  hence 
the  defendant  claimed  there  had  been  a  ma- 
terial departure  to  its  prejudice  from  the 
terms  of  the  bond;  but  the  trial  Judge  In- 
stracted  that,  <m  the  facts  at  bar,  the  plain- 
tiff was  not  "in  default  with  respect  to  cither 
of  said  [previously  quoted]  conditions,"  and 
this  Is  complained  of  in  several  assignments 
of  error.  It  is  not  necessary  to  pass  upon  the 
complaints  in  question,  however,  for  we  are 
convinced  that  binding  instructions  should 
have  been  given  for  the  defendant  on  another 
point  that  rules  the  case  as  a  whole.  This 
we  shall  next  consider. 

When  the  t>ond  In  suit  was  applied  for,  the 
plaintUTs  president  made  these  written  state- 
ments: (a)  That  a  thorough  examination  of 
the  books  and  accounts  of  the  assodatiou  . 
would  take  place,  and  all  "cash,  securities^ 
etc.,  be  counted,  compared,  and  verified"  In 
August  of  each  year ;  (b)  that  such  an  exam- 
ination had  in  fact  been  made  in  the  prior 
August,  by  the  auditors  of  the  association, 
and  the  books  and  accounts  were  then  found 
correct  in  every  particular.  At  the  trial  the 
men  who  made  the  audit  in  question  were 
called,  and  admitted  that,  although  they  had 
served  the  association  In  this  capacity  for 
many  years,  they  did  not  at  any  time  either 
count  the  ca^  and  securities  oa  hand,  look 
at  the  bank  book,  or  make  inquiry  at  the  de- 
pository as  to  the  balance  in  the  treasurer's 
account,  contenting  themselves  by  simply  In- 
quiring of  Mr.  Stlne  whether  he  had  sufficient 
cash  In  bank  or  on  hand  to  cover  the  balanc- 
es shown  by  the  books,  aind  accepting  his 
reply  as  a  verity.  liikewlse  it  appeared 
that,  hod  tha  auditors  examined  Mr.  Stiue's- 
bank  account  or  made  proper  inquiry,  they 
would  have  discovered  an  apparent  deficit 
existing  at  the  time  of  the  application  for 
the  surety  bond,  and  Bubeequent  audits  would 
have  shown  an  Increase  in  the  amount  of  this 
shortage.  With  these  facts  established  by 
either  documentary  evidence  or  uncontested 
and  undi£^uted  testimony,  the  trial  Judge- 
instructed  the  Jury  that,  unHess  they  found 
the  statements  contained  in  the  application 
for  the  bond  "knowingly  false  and  fraudu- 
lent" and  made  "with  an  Intent  to  deceive" 
(as  to  which  there  was  no  evidence),  their 
falsity  in  fact  would  not  defeat  a  recovery. 
This  instruction,  which  is  directly  contrary 
to  the  law  as  laid  down  by  ua  In  National 


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101  ATLANTIC  BEPORTBB 


(Pa. 


Bank  of  Taretitnm  v.  Bqnltable  Trost  Go. 
of  Pittsburg,  223  Pa.  328,  72  AU.  794,  Is  c<Hii>- 
plalned  of  in  several  assignments  of  error, 
the  appellant  contending  that,  under  the  es- 
tablished law,  on  the  material  facts  relevant 
to  this  branch  of  the  case.  It  was  entitled  to 
the  verdict  without  regard  to  the  question  of 
plaintiff's  intent,  the  ooly  material  issue  be- 
ing as  to  the  substantial  truth  or  falsity  of 
tlie  statements  in  question. 

In  the  Tarentum  Case,  the  defendant  exe- 
cuted a  fidelity  bond  on  a  bookkeeper  employ- 
ed by  the  plalntifT  bank.  For  the  purpose  of 
obtaining  this  bond,  an  officer  of  the  latter  In- 
stitution certified  that  the  books  and  accounts 
of  its  employ^  had  been  examined  and  found 
accurate  la  every  respect  The  bookkeeper 
proved  dishonest,  and,  in  a  suit  against  the 
surety  company  to  compel  the  latter  to  make 
good  the  amount  of  the  former's  speculations, 
it  was  shown  that  he  had  been  systematically 
stealing  from  his  employer  for  some  time 
past  The  evidence  indicated  that,  "hod  an 
effective  audit  •  •  •  been  made  by  the 
bank,"  prior  to  the  application  for  the  bond, 
in  all  probability  the  fraudulent  practices  of 
the  bookkeeper  would  have  been  discovered, 
and  this  would  have  "prevented  the  issue  of 
any  such  certificate  as  was  given  to  the  de- 
fendant company."  The  trial  Judge  submit- 
ted to  the  Jury  the  questions  whether  the 
statements  contained  In  the  certificate  accom- 
panying the  application  for  the  bond  "were 
untrue  or  substantially  true,"  with  instruc- 
tions that,  if  they  found  the  latter  to  be  the 
case,  then  there  was  no  defense  to  the  action 
and  the  plaintiff  ou^t  to  have  a  verdict; 
but  adding  that  If  they  found  such  state- 
ments were  "not  substantially  true  and  were 
misleading  in  regard  to  the  examination  of 
his  [the  bookkeeper's]  accounts,"  then  the 
verdict  ought  to  be  for  the  defendant.  The 
verdict  accorded  with  this  last  instruction, 
and  we  sustained  the  Judgment  entered  there- 
on for  the  defendant,  saying,  "The  informa- 
tion asked  for  by  the  trust  oMnpany  was  en- 
tirely proper  for  its  guidance  in  the  trans- 
action"; that  "^vlthout  doubt,"  the  bond 
was  given  "upon  the  faith  of  tlie  statements 
contained  in  the  certificate";  and  that  un- 
der such  circumstances,  "the  bank  cannot  be 
heard  In  disavowal  of  the  representations 
made  by  its  executive  officer,  which  led  the 
defendant  company  to  agree  to  continue  its 
responsibility." 

In  the  case  at  bar,  the  plaintiff  did  not  at- 
tempt to  show  that  any  such  examination  of 
its  books,  as  stated  by  its  president  when 
he  applied  for  the  bond  in  suit  had,  in  fact 
been  made.    On  the  cmitrary,  as  to  this,  It 


simply  contended  that  the  def«idant  had 
failed  to  prove  the  statements,  with  refer- 
ence to  the  last  prior  audit  to  have  been 
fraudul^itly  made  with  an  intent  to  deceive^ 
In  all  essential  particulars,  the  false  state- 
ments in  the  present  case  are  Identical  with 
tlioee  in  the  Tarentum  Case.  In  each  in- 
stance the  surety  company  was  misled  by 
material  written  declarations,  to  the  effect 
that  a  certain  character  of  audit  had  been 
held  upon  the  books  and  accounts  of  the  per- 
son whose  honesty  was  to  be  underwritten, 
and  that  sudi  audit  had  shown  certain  favor- 
able results,  whereas,  in  point  of  fact  there 
had  been  no  such  audit  as  certified,  and, 
had  It  been  held,  the  dishonesty  of  the  per- 
son about  to  be  bonded  would  undoubtedly 
have  been  indicated.  Tlie  two  cases,  how- 
ever, are  sought  to  be  distinguished  by  the 
court  below  on,  the  ground  that  in  the  one 
cited  by  appellant  the  plaintiff  certified 
that  its  employe's  boolis,  etc.,  had  \)eea  exam- 
ined by  "us,"  while  the  certificate  at  bar 
states  the  examination  had  been  made  by 
auditors.  We  do  not  see  any  force  in  this 
attempted  distinction.  The  plaintiffs  in  both 
instances  t)eing  corporations,  of  course.  In 
making  their  examinations,  they  bad  to  act 
through  individual  representatives,  be  they 
auditors  or  otherwise.  It.  was  the  duty  of 
the  president  of  the  plaintiff  association  to 
ascertain  the  nature  of  the  audit  inquired 
about  and  depended  upon  by  the  defendant 
before  certifying  its  character  to  the  possible 
prejudice  of  the  latter. 

We  have  examined  the  authorities  relied 
upon  by  counsel  for  the  appellee,  holding  that 
for  certain  purposes  bonds  sudti  as  the  one 
in  suit  are  viewed  in  the  law  as  insurance 
contracts;  but  none  of  them  either  expressly 
or  Impliedly  overrules  the  Tarentum  Case, 
which  governs  here.  The  material  facts,  that 
bring  the  presea*  controversy  within  the 
principle  of  the  authority  Just  olted,  are  es- 
tablished by  documentary  evidence,  and  not 
only  uncontested  but  undisputed  testimony, 
given  in  most  part  by  officers  or  members  of 
the  plaintiff  association ;  the  verity  of  theee 
facts  Is  not  attacked,  only  their  suffldency 
in  law ;  and,  finally,  the  inferences  and  con- 
clusions to  be  drawn  therefrom  are  certain 
and  inevitable.  Under  the  drcomstancea, 
the  learned  couit  below  should  have  given 
binding  instructions  for  tlie  defendant. 
Marks  V.  Anchor  Savings  Bank,  252  Pa.  304, 
310,  311,  97  AtL  399,  U  R.  A.  1916E,  906. 
The  fourteenth  assignment  which  complatna 
of  the  refusal  so  to  do,  is  sustained. 

Judgment  reversed  and  bete  entered  Cor 
defendant 


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MAINE  MILL  SUPPLY  (XK  ▼.  FINKELMAN 


883 


(U(  M*.  an 

RAKKIN  T.  TAKRAND. 

(Snoreme  Jndicial  Court  of  Maine.     Sept.  18, 
1917.) 

Appeal  a»d  Bbbob  «=»100G(1)— Fikdingb  or 
JUBTICIC— KaviBw.  . 

Findings  of  a  justice  in  equity  suit  nave  tne 
force  of  a  verdict,  and  will  not  be  reversed  un- 
less manifestly  contrary  to  the  evidence. 

Appeal  from  Supreme  Judicial  Court,  Knox 
County,  in  Equity. 

Bill  by  Edward  E.  Rankin,  trustee,  against 
Helen  Farrand.  Bill  dismissed,  and  plaintiff 
appeals.  Appeal  dismissed,  and  bill  dismiss- 
ed, with  costs. 

Argued  before  CORNISH,  C.  J.,  and 
SPEAR,  BIRD,  HANSON,  and  MADIGAN, 
JJ. 

A.  8.  Litttefldd,  of  Rockland,  for  appel- 
lant. Edward  K.  Oould,  of  Rockland,  for  ap- 
pellee. 

PER  CURIAM.  Tbig  bill  In  equity  was 
brought  by  a  trustee  in  bankruptcy  to  set 
aside  two  conveyances  made  to  the  defend- 
ant by  her  husband  who  was  declared  an 
Involuntary  bankrupt  nine  months  thereafter. 

The  plaintiff  sets  up  two  grounds  for  re- 
lief: First,  that  the  conveyances  were  with- 
out consideration  and  therefore  void  as  to 
existing  creditors;  and,  second,  that  they 
were  made  for  an  Inadequate  consideration 
and  for  the  purpose  of  hindering,  delaying, 
and  defrauding  creditors;  the  defendant  par- 
ticipating In  the  fraud. 

The  sitting  Justice,  after  hearing  the  cause 
and  fully  considering  the  evidence,  found 
that  the  proof  was  "not  suflSdent  to  sustain 
the  essential  allegations  of  the  bill  necessary, 
to  be  established  to  entitle  the  plaintiff  to 
the  relief  prayed  for."  He  therefore  ordered 
the  bill  to  be  dismissed. 

This  finding  has  the  force  of  a  verdict  of 
a  jury,  and  is  not  to  be  reversed  unless  It 
Is  manifestly  contrary  to  the  weight  of  the 
evidence.  After  carefully  considering  the 
record  and  the  arguments  of  counsel,  the 
court  is  of  opinion  that  the  finding  of  the 
sitting  justice  was  fully  justified  on  both 
branches  of  the  case,  but  we  think  the  de- 
fendant is  entitled  to  costs. 

The  entry  vtIII  therefore  be: 

Appeal  dismissed. 

Bill  dismissed,  with  coeta. 


(US  He.  EOS) 

MAINE  MILL  SUPPLY  CO.  ▼. 
FINKELMAN. 

(Supreme  Judicial  Court  of  Maine.     Sept.  20, 
1917.) 

1.  Apfbai.  and  Ebbob  «=>1002  —  Review  — 

Vebdict. 

Where   there  are   sharp  contradictions  on 

many  points,  the  appellate  court  will  not  set 

aside  a  verdict  not  manifestly  wrong  and  grant 


a  new  trial,  although  the  witnesses  for  the  un- 
successful party  outnumber  those  of  the  success- 
ful party. 

2.  Appeal  and  Ebbob  «=>28S(1)— Pbesbbva- 

TION  OF  ObOUNDS  of  REVIEW. 

Where  plaintiff  did  not  call  the  court's  at- 
tention to  the  misstatement  of  defendant's  claim 
before  the  jury  retired  or  request  additional  in- 
structions, exceptions  to  the  charge  will  not  be 
sustained. 

3.  Appeal  and  Ebbob  ®=»1064(1)— Tnstbuc- 

TIONS— COtnOENTS    ON    EVIDENCIi— HABULES8 

Ebbob. 
Any  statement  in  the  charge  as  to  the  na- 
tionality of  the  parties  was  harmless,  where  the 
parties  and  the  witnesses  on  both  sides  were  of 
the  same  nationality. 

Exceptions  from  Supreme  Judicial  Court, 
Androscoggin  County,  at  Law. 

Assumpsit  by  the  Maine  Mill  Supply  Com- 
pany against  D.  Finkelman.  Verdict  for  de- 
fendant, and  plaintiff  brings  exceptions.  Mo- 
tion and  exceptions  overruled. 

Argued  before  CORNISH,  C.  J.,  and  KING, 
BIRD,  HANSON,  and  MADIGAN,  JJ, 

Benjamin  L.  Berman,  of  Lewiston,  and 
Jacob  H.  Berman,  of  Portland,  for  plaintiff. 
Robert  M.  Pennell,  of  Portland,  for  defend- 
ant. 

PER  CURIAM.  This  is  an  action  of  as- 
sumpsit on  a  check  for  $200  dated  January 
17,  1916,  drawn  by  the  defendant  and  made 
payable  to  the  order  of  the  plaintiff.  Pay- 
ment upon  the  check  was  seasonably  stopped 
The  vital  point  at  issue  was  one  of  fact  name; 
ly,  whether,  as  the  plaintiff  claimed,  the 
check  was  given  in  payment  of  merchandise 
purchased  and  of  other  agreed  items;  or 
as  the  defendant  contended,  was  given  with- 
out consideration,  and  as  a  personal  loan  to 
one  Alpren,  one  of  the  parties  interested  in 
the  plaintiff  corporation.  The  jury  found  in 
favor  of  the  defendant. 

[1]  Upon  plaintUTs  motion  for  a  new  trial 
It  Is  sufiicient  to  say  that  a  careful  study  of 
the  evidence  does  not  warrant  the  setting 
aside  of  the  verdict.  There  are  sharp  con- 
tradictions on  many  points,  and  whUe  the 
witnesses  for  the  plaintiff  outnumber  those 
for  the  defendant,  we  are  unaUe  to  say  that 
in  the  light  of  all  the  circumstances  the  true 
weight  of  the  evidence  was  so  manifestly  on 
the  side  of  the  plaintiff  as  to  compel  the  re- 
jection of  the  verdict 

[2, 3]  Nor  can  the  plalntitTs  exceptions  to 
a  porti<Hi  of  the  charge  of  the  presiding  jus- 
tice be  sustained.  No  error  in  law  is  claimed. 
The  court  was  simply  summarizing,  as  was 
his  duty,  the  contentions  of  the  parties.  If, 
In  so  doing,  any  misstatement  was  made  as 
to  the  defendant's  claims,  attention  should 
have  been  called  to  the  specific  fact,  so  that 
the  error  could  be  corrected  before  the  Jury 
retired.  If  the  court  failed  to  fully  state  the 
claims  of  the  plaintiff,  additional  instructions 
should  have  been  requested.  Neither  was 
done.    Any  statement  as  to  the  nationality  of 


£=»For  other  cases  see  same  topio  and  KSY-NUMBBR  In  all  Ker-Niunbered  Dlsesta  and  Indexes 
101A.-53 


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101  ATLANTIO  REPORTER 


(0<mD. 


the  parties  was  barmle&s,  as  the  parties  and 
witnesses  on  both  sides  were  of  the  same  na- 
tionality, as  abundantly  appears. 
Motion  and  exceptions  overruled. 

(«2  Conn.  »)  ^"^^^^ 

CORBIN,  Tux  Com'r,  y.  BAIJ)WIN  et  aL 

BALDWIN  et  at  v.  CORBIN,  Tax  Com'r. 

(Supreme  Court  of  Errors  of  Connecticut. 

Aug.  2,  1917.) 

1.  Taxation  «=»85C— "iNHEBrrAuc*  Tax"— 
Nature. 

Inheritance  or  succession  taxes  are  not  taxes 
laid  upon  persons  or  property,  or,  strictly  speak- 
ing, taxes  at  all,  but  raUier  death  duties,  levied 
as  exactions  of  the  state  in  the  course  of  the 
settlement  of  estates,  as  an  incident  to  the  devo- 
lution of  title  by  force  of  its  laws. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Inher- 
itance Tax.] 

2.  Taxation    «=5»876(1)— Inheritancb   Tax- 
Exemptions  —  Institdtionb      Rkceivino 

Within  Pui).  Acts  1915,  c.  332,  {  3,  exempt- 
ing from  inheritance  taxes  all  property  passing 
to  or  in  trust  for  the  benefit  of  any  corpora- 
tion or  institution  located  in  the  state  which  re- 
ceives state  aid,  educational,  charitable,  and  oth- 
er corporations  which  are  granted  exemptions 
from  general  taxation,  in  recognition  of  the  de- 
votion of  their  property  to  public  purposes,  are 
institutions  receiving  state  aid,  and  are  entitled 
to  exemption,  since  the  word  "aid,"  in  its  ordi- 
nary significance,  has  a  broad  and  compre- 
hensive meaning,  and  includes  help  and  as- 
sistance of  whatever  kind  and  by  whatever 
means  or  method  provided,  and  there  is  nothing 
in  the  conditions  and  circumstances  under  which 
the  statute  was  enacted,  the  subject-matter,  the 
context,  related  legislation,  or  antecedent  leg- 
islative history  to  restrict  it)B  meaning. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  Second  Series,  State  Aid.] 

3.  Statutes     ©=»188— Consteuction— Mkan- 
INO  OF  Lanquaoe  Used. 

The  presumption  is  that  the  words  of  a  stat- 
ute are  used  in  their  ordinary  signification. 

4.  Taxation   €=»860  —  Inhebitanck  Tax  — 
Statutoby  Provisions — Constkuction. 

An  intention  to  impose  inheritance  taxes  on 
property  devised  or  bequeathed  to  public  charita- 
ble uses,  and  thereby  divert  some  portion  of  the 
estate  to  some  other  public  use  than  that  with- 
in the  mind  or  purpose  of  the  testator,  will 
not  be  deduced  from  language  not  clearly  ^- 
pressing  or  indicating  such  intention. 
B.  Taxation  «=>860  —  Inhbbitancb  Tax  — 
Statutory  Peovision— Consibuction. 

The  rule  that  a  portion  of  a  statute  exempt- 
ing something  from  the  operation  of  the  general 
rule  prescribed  by  the  statute  should  receive  a 
strict  construction  is  subject  to  limitations,  and 
does  not  apply  to  the  construction  of  Pub.  Acts 
1915,  c.  332,  I  8,  exempting  property  passing  to 
corporations  or  institutions  receiving  state  aid 
from  the  inheritance  tax  imposed  by  that  act 
6.  Taxation  <s=»895(7)— Inhkbitance  Tax- 
Deductions.  .        ,  .     .^ 

In  computing  the  amount  of  an  inheritance 
tax,  there  should  be  deducted,  from  tlie  total 
amount  of  the  appraisal  local  taxes  paid  to 
the  tax  collector,  inheritance  taxes  paid  in  an- 
other state  and  an  income  tax  paid  to  the  United 
States  internal  revenue  collector. 
7  Taxation  <S=»886%  —  I»H«BiTANat  Tax  — 
Kate  of  Taxation.  . 

It  was  error  to  assess  an  inheritance  tax  on 
property  not  exempt  at  the  rate  of  8  per  cent. 


instead  of  5  per  cent,  on  $49,000,  6  per  cent,  on 
the  next  $200,000,  and  7  per  cent,  on  the  bal- 
ance. 
Wheeler  and  Roraback,  JJ.,  dissenting. 

Case  reserved  from  Superior  Court,  New 
Haven  County ;  Donald  T.  Warner,  Judge. 

Proceeding  to  assess  an  Inheritance  tax 
on  the  estate  of  Justus  S.  Hotchkiss  deceased. 
Prom  an  order  and  decree  of  the  probate 
court  determining  the  amount  of  the  tax, 
William  H.  Corbin,  tax  commissioner,  and 
Simeon  E2.  Baldwin  and  others,  executors, 
appealed  to  the  superior  court,  which  re- 
sen-ed  the  appeals  for  the  advice  of  the  Su- 
preme Court  of  Errors  upon  the  demurrers 
filed  by  the  tax  commissioner  to  the  answers 
to  the  reasons  of  appeal  on  the  executors'  ap- 
peal, aod  the  demurrers  to  the  reasons  of  ap- 
peal on  the  tax  commissioner's  appeaL  Judg- 
ment advised. 

Justus  S.  Hotchkiss,  late  of  New  Haven, 
died  possessed  of  an  estate  appraised  in  the 
inventory  thereof  at  approximately  $2,000,000. 
By  his  will  he  made  bequests  and  devises  to 
various  persons  and  corporations.  Among 
them  were  the  Blrst  Ecclesiastical  Society  of 
New  Haven,  the  General  Hospital  Society  of 
ConnecUcut,  the  New  Haven  City  Burial  As- 
sociation, the  Home  for  the  Friendless,  the 
Lowell  House,  and  Yale  University,  the  latter 
being  the  residuary  legatee  and  devisee.  In 
the  course  of  the  administration  of  the  es- 
tate, the  court  passed  an  order  and  decree 
adjudging  (1)  that  the  gifts  to  the  first  Ec- 
clesiastical Society,  the  General  Hospital  So- 
ciety, the  New  Haven  City  Burial  Association, 
and  Yale  University  were  exempt  from  the 
payment  of  an  inheritance  tax;  (2)  that  those 
In  favor  of  the  Home  for  the  Friendless  and 
the  Lowell  House  were  subject  to  such  tax; 
and  (3)  that  the  amount  of  tax  due  the  state 
was  $58,082.80,  the  same  being  figured  at  8 
per  cent.  From  so  much  of  this  order  and 
decree  as  established  the  above  exemptions 
the  tax  commissioner  appealed,  his  appeal  be- 
ing the  flrst-named  of  the  above-entitled  cases. 
E>om  that  portion  which  subjected  the  gifts 
in  favor  of  the  Home  tor  the  Friendless  and 
the  Lowell  House  to  the  tax  the  executors 
appealed,  their  appeal  being  the  second  of  the 
two  cases.  The  appeal  by  the  executors  also 
embodied  reasons  of  appeal  alleging  that  the 
court  erred  in  failing  to  make  certain  deduc- 
tions from  the  total  amount  of  the  appraisal 
of  the  estate  and  the  gains  to  be  added  there- 
to, and  in  computing  the  amount  of  tax  i>ay- 
able  at  the  uniform  rate  of  8  instead  of  a 
graduated  rate  of  5,  8,  and  7  per  cent 

George  E.  Hinman,  Atty.  Gen.,  and  Charles 
W.  Cramer,  of  Hartford,  for  Tax  Com'r. 
Henry  Stoddard,  J.  Dwight  Dana,  and  John 
W.  Bristol,  all  of  New  Haven,  for  executors. 

PRENTICE,  C.  J.  (after  stating  the  facts 
as  above).  By  the  will  of  Mr.  Hotchkiss,  six 
corporations  were  made  the  beneficiaries  of 


$=9For  other  cases  we  same  topic  and  KBT-NUMBBR  in  all  Key-Numb*i«d  Dlgeati  and  IndaxM 


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CORBIN  V.  BALDWIN 


835 


gifts.  One  of  these  gifts,  to  wit,  that  to  the  [ 
General  Hospital  Society  of  Connecticnt,  con- 
fessedly Is  not  subject  to  the  payment  of  an 
Inheritance  tax.  The  tax  commissioner  con- 
tends that  the  other  five  are.  Their  bene- 
ficiaries, on  the  other  hand,  assert  that  they 
are  exempt  from  such  payment  These  con- 
flicting claims  form  the  principal  subject  of 
these  appeals. 

These  five  beneficiaries  include  Tale  Uni- 
versity, a  corporation  chartered  for  educa- 
tional purposes;  the  Home  for  the  Friendless, 
and  the  Lowell  House,  the  first  chartered  to 
carry  on  a  benevolent  and  charitable  work, 
and  the  second  organized  under  the  general 
law  for  a  similar  purpose;  the  First  Ec- 
clesiastical Society  of  New  Haven,  an  eccle- 
siastical and  religious  corporation;  and  the 
Proprietors  of  the  New  Haven  Burial  Ground, 
designated  in  the  will  as  the  New  Haven  City 
Burial  Association,  incorporated  for  the  pur* 
poee  of  maintaining  a  burial  ground,  and  hav- 
ing as  its  sole  property  land  exclusively  used 
for  such  purpose.  All  of  them  enjoy  at  the 
bands  of  the  state  exemptions  from  taxation. 

The  record  makes  it  clear  that,  if  the  gifts 
to  these  beneficiaries  are  to  pass  to  them 
free  from  an  Inheritance  tax,  it  must  be  by 
force  of  that  provision  of  the  statute  which 
exempts  "all  property  passing  to  or  in  trust 
for  the  benefit  of  any  corporation  or  institu- 
tion located  in  this  state  which  receives 
state  aid."  Public  Acts  of  1915,  c.  332,  {  3. 
It  also  makes  it  equally  clear  that  the  sole 
claim  to  exemption  by  virtue  of  this  statutory 
provision,  which  any  of  the  corporations  in- 
TOired  can  successfully  assert,  is  one  found- 
ed upon  the  tax  exemptions  with  which  they 
are  and  for  years  have  been  favored  at  the 
hands  of  the  state.  In  making  this  statement 
we  do  not  Ignore  certain  facts  recited  in  the 
answer  of  Yale  University  demurred  to,  and 
thus  presented  by  it  in  aid  of  its  position,  but 
they  are  at  best  of  minor  importance,  and  do 
not  impress  us  as  adding  materially,  if  at 
all,  to  the  strength  of  its  position.  Its  claim 
to  exemption  must,  therefore,  rest  for  its 
support  upon  the  proposition  which  it,  in 
common  with  the  other  l)cneficlaries  l)efore 
the  court,  advances  that  the  gift  to  it  is  one 
wMcb  it  is  entitled  to  receive  without  diminu- 
tion by  reason  of  the  imposition  of  a  succes- 
sion tax,  for  the  reason  that  it  is  a  corpora- 
tion in  receipt  of  state  aid  through  the  medi- 
um of  exemptions  from  taxation  conferred 
upon  it  at  the  hands  of  the  state. 

[11  The  claim  thus  made  by  the  five  cor- 
porations Is  not,  it  is  to  be  borne  in  mind, 
that  they  are  entitled  to  receive  the  gifts  in 
tbeir  favor  free  from  succession  tax  through 
tbe  direct  operation  of  statutes  prescribing 
tax  exemptions  in  their  favor.  Their  claim, 
on  the  other  luind,  gives  fall  recognition  to 
the  well-established  law  of  this  Jurisdiction, 
that  so-called  inheritance  or  succession  taxes 
&re  not  taxes  laid  upon  either  persons  or 
property,  or,  strictly  speaking,  taxes  at  all, 
bat  rather  death  duties,  levied  as  exactions  of 


tbe  state  in  tlie  course  of  the  settlement  of 
estates,  as  an  Incident  to  the  devolution  of  ti- 
tle by  force  of  its  laws.  Hopkins'  Appeal,  77 
Conn.  644,  649,  60  AtL  657;  Warner  v.  Cor- 
bln,  91  Conn.  632,  100  Atl.  354.  It  concedes 
that,  if  the  gifts  to  them  are  to  escape  these 
death  duties,  it  must  be  not  for  the  reason 
that  they  are  taxes  in  the  ordinary  sense,  but 
for  the  reason  that  the  so-called  inheritance 
tax  law  specifically  excludes  them  from  its 
operation  as  having  been  made  to  corpora- 
tions in  receipt  of  state  aid  through  the  me- 
dium of  tax  exemptions. 

[2]  The  question  at  issue  thus  becomes 
narrowed  to  one  of  statutory  construction. 
The  law  provides  tliat  property  owned  by  a 
resident  of  this  state  at  ills  decease,  which 
shall  pass  by  will  or  the  general  law  of  dis- 
tributions to  corporations  or  institutions  in 
receipt  of  state  aid,  shall  so  pass  inheritance 
tax  free.  Public  Acts  of  1915,  c.  332,  | 
3.  The  tax  commissioner  contends  that  the 
corporations  and  institutions  receiving  state 
aid,  within  the  true  meaning  and  intent  of 
this  provision,  are  limited  to  those  receiving 
pecuniary  assistance  by  direct  state  appro- 
priation, and  that  those  corporations  and 
Institutions  otherwise  aided  and  assisted  by 
the  state's  action  are  not  included.  His 
counsel  urge  that  this  portion  of  the  act  is 
to  be  interpreted  as  though  it  contained  the 
qualifying  words  "by  appropriations"  or  lan- 
guage of  similar  purport,  so  that  It  read 
"state  aid  by  appropriations"  or  equivalent 
language.  The  beneficiaries  of  the  gifts  as- 
sert, on  the  other  hand,  that  all  those  cor- 
porations and  institutions  aided  or  assisted 
financially  in  whatever  way,  and  whether  by 
direct  appropriation  of  state  funds,  or  by  the 
provision  of  material  agencies  for  the  con- 
duct of  their  work,  or  by  the  enhancement 
of  their  financial  resources  by  excusing  them 
from  the  payment  of  taxes,  are  to  t>e  re- 
garded as  recipients  of  "state  aid"  as  that 
term  is  employed  in  the  statute. 

In  Beach  v.  Bradstreet,  85  Conn.  344,  353, 
82  Atl.  1030,  1033,  Ann.  Cas.  1913B,  946,  we 
said  that  "the  ordinary  definition  of  'aid'  is 
help,  support,  or  assistance,"  and  that  "state 
aid  is  support  or  assistance  furnished  by  the 
state."  The  qualifying  word  "state"  is  of  no 
importance,  save  as  indicating  the  source 
from  which  the  aid  comes.  "Aid"  is  the 
word  which  possesses  significance  for  our 
present  inquiry,  and  that  word,  as  its  defini- 
tion clearly  discloses.  Is  one  whose  ordinary 
meaning  is  broad  and  comprehensive,  and 
inclusive  of  help  and  assistance  of  whatever 
kind  and  by  whatever  means  or  method  pro- 
vided. There  are  various  means  and  meth- 
ods which  may  be  resorted  to  by  individuals 
in  furnishing  aid  and  assistance.  The  same 
is  equally  true  of  the  state.  It  may,  of 
course,  make  direct  appropriations  or  pay- 
ments by  which  the  treasury  of  the  recipient 
is  replenished.  If,  instead,  it  excuses  a  cor- 
poration or  institution  from  the  payment  of 
taxes,  it  gives  aid,  assistance,  and  support 


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101  ATLANTIC  REPORTBE 


(Comv 


to  such  corporation  or  Institution  Just  as 
much  and  Just  as  eflSdently  as  it  would  by 
the  appropriation  of  an  amount  equal  to  the 
taxes  the  cori)oratlon  or  Institution  would 
be  required  to  pay  were  there  no  exemption. 
The  result  in  either  case,  although  accom- 
plished by  different  means,  Is  precisely  the 
same.  The  difference  la  one  of  method,  and 
not  of  kind  or  degree  of  aid  furnished.  In 
the  one  case  the  money  la  peM  over  and 
paid  back;  In  the  other,  no  money  passes. 
In  both  the  result,  as  reflected  by  the  treas- 
ury of  each  of  the  parties,  Is  the  same.  If 
the  language  of  the  statute  Is  to  be  accord- 
ed Its  ordinary  and  natural  meaning,  our 
conclusion  must,  therefore,  be  that  state  aid 
embraces  aid  given  by  means  of  exemptions 
from  taxation  as  well  as  by  other  means,  as, 
for  example,  by  appropriations. 

[3]  While  this  Is  true,  and  the  presump- 
tion Is  that  the  words  of  the  statute  were 
used  In  their  ordinary  signification.  It  does 
not  necessarily  follow  that  the  term  "state 
aid"  was  not  used  therein  In  some  less  com- 
prehensive sense,  or  in  the  qualified  and  re- 
stricted sense  for  which  the  tax  commission- 
er contends.  His  claim,  therefore,  calls  for 
our  inquiry  as  to  the  legislative  intent.  In- 
volving a  consideration  of  the  language  used, 
its  context,  pertinent  antecedent  legislative 
history,  related  legislation,  the  subject-mat- 
ter with  which  the  language  deals,  its  oper- 
ation as  it  may  be  Interpreted,  the  conditions 
and  circumstances  under  which  It  was  enact- 
ed, and  all  other  matters  calculated  to  throw 
light  upon  the  subject  of  Inquiry. 

First  and  foremost  we  have  the  language 
of  the  statute.  The  natural  and  ordinary 
meaning  of  the  term  which  Is  the  subject  of 
consideration  does  not,  as  we  have  already 
had  occasion  to  observe,  harmonize  with  the 
interpretation  the  tax  commissioner  would 
have  us  put  upon  It,  and  its  context  throws 
no  additional  light  upon  the  sense  In  which 
it  was  employed. 

Counsel  for  the  tax  commissioner.  In  aid 
of  their  contention,  point  to  the  use  of  the 
term  in  the  Indices  of  the  Revision  and  Ses- 
sion Laws  and  in  the  body  of  Statutes.  Our 
examination  of  the  indices  referred  to,  as 
well  as  others,  discloses  that  under  the  head- 
ing of  "State  Aid"  references  are  repeatedly 
made  to  statutes  providing  for  the  payment 
of  moneys  In  aid  of  various  objects.  Such 
references  are  so  made  with  undoubted  pro- 
priety, since  such  payments  are  unquestion- 
ably state  aid.  It  also  reveals  that  In  nearly 
as  many  Instances  statutes  providing  aid  and 
assistance  by  other  means  than  the  payment 
of  money  to  the  objects  to  be  benefited  are 
referred  to  under  that  head.  References  of 
the  two  kinds  are  Indiscriminately  Intermin- 
gled. This  Is  noticeably  so  In  the  Revision, 
where  the  majority  are  to  statutes  of  the 
latter  character.  As  for  the  statutes  them- 
selves, there  are  two  Instances  which  have 
some  under  our  observation  in  which  the 


term  "state  aid,"  Judging  by  the  context, 
was  used  in  the  limited  sense  of  aid  by  ap- 
propriations or  direct  payment.  Rev.  Stat 
iS  183,  136&  Our  attention  has  not  been 
called  to  others  of  that  character.  Scant 
proof,  surely,  is  thus  furnished  of  an  accept- 
ed, customary,  or  common  statutory  use  of 
the  term  in  the  narrow  sense  contended  for. 
Far  more  suggestive  of  the  meaning  in  which 
It  was  employed  in  the  statute  of  1915  Is  the 
fact  that  in  the  opinion  In  West  Hartford  v. 
Connecticut  Fair  Asso.,  88  Conn.  627,  630,  92 
Atl.  432,  handed  down  only  a  few  months 
before  its  enactment,  we  characterized  tax 
exemptions  as  state  aid. 

Looking  outside  of  legislation  to  the  condi- 
tions and  circumstances  under  which  the  act 
of  1915  was  enacted,  the  subject-matter  with 
which  it  deals,  and  Its  operation,  there  are 
several  matters  of  large  significance  as  bear- 
ing upon  both  the  rule  of  interpretation 
which  should  be  employed  and  the  interpreta- 
tion which  should  be  given  to  the  language 
in  controversy. 

Foremost  of  these  Is  the  public  service 
character  of  tax-exempted  corporations  and 
institutions,  and  the  public  service  performed 
by  them  whldi  furnishes  the  sole  reason  for 
the  existence  of  their  exemption.  While  It 
may  be  true,  and  doubtless  Is,  that  tax  ex- 
emptions have  at  times  been  granted  with  too 
great  liberality  and  with  scant  regard  for 
their  fundamental  reason,  such  is  not  the 
case  in  the  vast  majority  of  Instances,  and 
manifestly  is  not  in  the  case  of  any  of  the 
parties  before  the  court 

It  Is  to  be  borne  In  mind  that  exemptions 
are  made  and  can  be  made  lawfully  only  in 
recognition  of  a  public  service  performed  by 
the  beneficiary  of  the  exemption.  They  are 
not  bestowed,  as  Is  too  often  unthinkingly 
supposed,  as  a  matter  of  grace  or  favor.  If 
lawfully  granted,  as  most  are,  and  as  we  for 
present  purposes  are  bound  to  assume  that 
all  are,  they  are  granted  in  aid  of  the  accom- 
plishment of  a  public  benefit  and  for  the  ad- 
vancement of  the  public  Interest.  It  is  in 
recognition  of  their  position  as  an  agency  in 
the  doing  of  things  which  the  public.  In  the 
performance  of  its  governmental  duties, 
would  otherwise  be  called  upon  to  do  at  its 
own  expense,  or  which  ought  to  be  done  In 
the  public  Interest  and  without  private  Inter- 
vention would  remain  undone.  Tale  Univer- 
sity V.  New  Haven,  71  Conn.  316,  332,  42  Atl. 
87,  43  L.  R.  A.  490.  In  the  fullest  sense  of 
the  word,  the  exemptions  are  given  for  the 
assistance  and  help  of  the  private  endeavor 
la  its  enort  to  advance  the  pubUc  interest  or 
to  perform  some  share  of  the  public  govern- 
mental duty. 

This  is  true  not  only  theorettcally  bnt  prac- 
tically. The  extent  of  the  public  service,  and 
of  that  service  within  the  range  of  govern- 
mental duty,  which  is  performed  by  private 
beneficiaries  operating  through  the  medium 
of  tax-exempted  institutions  and  corporations 


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CORBIN  T.  BALDWIN 


837 


Is  enormous,  and  the  Importance  and  value  of 
It  In  Its  purely  public  aspects  Incalculable. 
The  amount  of  taxes  which  are  lost  to  the 
state  and  Its  political  subdivisions  by  reason 
of  exemptions  are  of  trifling  consequence  as 
compared  with  the  sums  coming  from  private 
sources  which  are  spent  for  the  public  weal. 
They  are  trifling  as  compared  with  those 
spent  for  purposes  governmental  In  their 
character,  and  which  but  for  the  private  ex- 
penditure would  become  a  charge  upon  the 
public  treasury  if  the  governmental  duty 
of  an  enlightened  modem  state  Is  to  be  per- 
formed. 

The  history  and  service  of  Yale  University, 
one  of  the  present  benefldarles  having  the 
largest  Interest  under  the  will  before  us, 
furnishes  a  forcible  Illustration  of  the  truth 
of  the  foregoing  observations.  The  numerous 
charitable  institutions  of  the  state,  among 
which  are  two  of  the  institutions  before  the 
court,  fumlsb  other  Incidents  as  striking. 
But  we  may  well  take  as  a  single  example 
the  typical  one  afforded  by  Tale. 

It  had  Its  origin  In  a  profound  conviction 
on  tin*  part  of  the  leaders  of  the  Infant  col- 
ony that  the  public  welfare  demanded  the 
establishment  within  Its  borders  of  a  school 
of  higher  education,  where  young  men  might 
be  prepared  and  trained  to  render  the  best 
public  service  to  the  community  and  state. 
The  task  of  providing  such  a  school  In  those 
days  was  no  small  one,  but  the  urgency  of  the 
need,  if  the  colony  was  to  prosper  and  main- 
tain the  necessary  standard  of  Intelligent 
and  capable  leadership,  was  so  keenly  felt 
and  appreciated  that,  in  spite  of  the  difficul- 
ties, the  longed-for  institution  came  into  Its 
first  modest  existence.  Its  charter  expressed 
the  feeling  of  the  time  as  to  the  place  it  was 
intended  It  should  occupy  as  a  public  agency 
when  it  characterized  the  purpose  of  the 
projected  school  as  one  wherein  "youth  may 
be  Instructed  in  the  arts  and  sciences,  who, 
through  the  blessing  of  Almighty  God,  may 
be  fitted  for  public  employment  both  In 
church  and  dvll  state."  The  history  of  the 
Institution  thus  founded  need  not  be  followed 
through  the  succeeding  years  further  than  to 
observe  that  from  the  first  It  has  enjoyed  ex- 
emption from  taxation,  and  not  Infrequently 
was  made  the  recipient  from  the  state  of 
direct  financial  help. 

Can  any  one,  who  reads  the  story  of  Tale's 
beginning  and  development,  doubt  that  our 
fathers  in  founding  It  did  so  to  provide  what 
they  thought  to  be  a  much  needed  agency  of 
public  service,  that  the  colony,  and  subse- 
quently the  state.  In  making  direct  gifts  and 
tax  exemptions  In  Its  favor,  were  actuated 
by  the  same  high  purpose,  and  that  the  tax 
exemptions  early  made  and  through  the  years 
since  maintained  was  made  for  the  conscious 
purpose  of  giving  substantial  aid  to  the  un- 
dertaking whose  work  It  was  felt  was  and 
would  continue  to  be  fraught  with  great 
public    benefit    to    community    and    state? 


The  same  appreciation  of  the  public  service 
rendered  by  Institutions  of  higher  education 
has  led  many  of  our  sister  states  to  make 
large  expenditures  from  the  public  treasury 
In  the  establishment  and  maintenance  of  such 
institutions.  The  Eastern  states  have,  for 
the  most  part,  been  spared  the  necessity  of 
making  these  expenditures  by  reason  of  the 
willingness  of  private  benevolence  to  assume 
the  task  elsewhere  shouldered  by  the  state. 
In  this  way  Connecticut  has  been  favored. 
Its  Instl^tlons  and  colleges  are  able  to  rely 
for  their  support  upon  private  contributions 
and  endowments,  with  only  such  state  assist- 
ance as  results  from  exemptions  from  taxa- 
tion. The  assistance  gained  through  these 
exemptions  has  been  of  no  small  help  in  the 
conduct  of  their  work  and  of  no  small  pro- 
portions. But  that  from  private  sources  has 
been  far  greater.  The  latter  fact  should  not 
be  allowed  to  obscure  the  public  character 
of  the  work  carried  on  by  them.  Neither 
should  the  former  be  forgotten  when  credit 
for  the  support  of  that  work  is  being  given 
to  those  who  have  furnished  substantial  aid. 

The  public  policy  of  this  state  and  of  the 
colonial  government  which  preceded  it  has, 
from  its  early  days,  been  governed  by  a  rec- 
ognition of  the  public  character  deserving  of 
public  assistance  and  support  of  not  only 
Tale's  work,  but  also  of  that  of  other  educa- 
tional and  diarltable  institutions  and  relat- 
ed institntions  generally.  In  1684  it  was  pro- 
vided "for  the  Incouragement  of  learning  antt 
promoatlng  of  publlque  concernments"  that 
all  houses  or  lands  given  or  held  for  "the 
mayntenance  of  the  ministry  or  schooles  or 
pooref"  should  remain  to  the  uses  for  which 
they  were  given  and  be  exempted  out  of  the 
list  of  estates  and  be  rate  free.  3  Col.  Rec. 
158.  In  1702  this  act  was  succeeded  by  a 
broader  one,  furnishing  the  basis  of  our  pres- 
ent statute  of  charitable  uses  (Hevlsed  Stat- 
utes, i  4026),  which  embraced  within  Its  pro- 
visions land,  tenements,  hereditaments,  and 
other  estate  given  by  colony,  town,  village, 
or  persons  for  the  maintenance  of  the  min- 
istry of  the  gospel,  schools  of  learning,  re- 
lief of  poor  people,  or  any  other  charitable 
use.  Acts  and  Laws  of  the  Colony  1702,  p. 
64.  This  act  ccotalned  the  general  exemption 
provision,  and  continued  In  force  untU  1821. 
At  that  time  the  exemption  clause  was  drop- 
ped from  it,  and  since  then  the  general  pol- 
icy of  exemption  indicated  has  been  followed 
by  general  and  spednl  legislation  to  the  ex- 
tent, at  least,  of  substantial,  if  not  total,  ex- 
emption.   Rev.  1821,  title  66,  chap.  1,  |  8. 

This  l^Islatlve  history  has  no  present  Im- 
portance save  as  It  shows  the  long-time  con- 
sistent policy  of  the  colony  and  state  In  not 
violating  the  ordained  sanctity  of  property 
dedicated  by  gift  of  its  owner  to  public  char- 
itable usee  by  depleting  ita  amount  or  ^ec- 
tlveness  for  the  purpose  of  Its  dedication, 
through  the  levy  of  a  tax  or  the  Imposition 
o£  other  state  burdoi  upon  It    If  now  it  la 


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101  ATLANTIC  REPORTEE 


(Cono. 


proposed  to  reach  oat  and  take  toll  of  sncb 
gifts  in  the  process  of  the  deTolutlon  of  title, 
It  marks  a  new  and  radical  departure  in  pol- 
icy In  striking  contrast  with  that  which  here- 
tofore has  characterized  our  governmental 
history.  Such  a  departure  Is  one  which  a 
court  will  be  slow  to  And  to  be  within  the 
legislative  intent,  unless  indicated  by  dear 
and  unambiguous  language. 

Every  dollar  which  Tale  University  has  re- 
ceived or  may  receive,  by  gift  or  otherwise, 
is  irrevocably  deidlcated  to  a  publlfc  <*arlta- 
tde  use.  Rev.  Stat  {  4026;  Connecticut  Col- 
lege V.  Calvert,  87  C<mn.  421,  428,  435,  88  Aa 
633,  48  L.  R.  A.  (N.  S.)  485.  When  the  title  to 
property  vests  in  the  University,  that  property 
"passes  out  of  the  domain  of  private  proper- 
ty," and  becomes  devoted  forever  to  a  pub- 
lic charitable  purpose.  Tale  University  v. 
New  Haven,  71  Conn.  316,  333,  42  AU.  87,  43 
L.  R.  A.  490.  The  same  is  true  of  the  funds 
held  or  received  by  the  other  beneflclHrtes  in 
court.  A  generous  public  spirit  prompted  Mr. 
Hotchklss  to  withdraw  a  large  portion  of 
bis  large  estate  from  the  domain  of  private 
property,  capable  of  use  for  private  enjoy- 
ment of  profit,  and  to  devote  it  to  the  public 
diarltable  uses  represented  by  it  and  them. 

(4)  It  is  doubtless  within  the  power  of  the 
state,  by  means  of  succession  taxes  so-called, 
to  appropriate  to  itself  some  portion  of  the 
estate  so  undertaken  to  be  devoted,  and  there- 
by divert  it  to  some  other  public  use  not 
within  the  mind  or  purpose  of  the  testator, 
but  its  intentloa  to  do  that  thing  will  not 
be  deduced  from  language  not  clearly  ex- 
pressing or  indicating  such  Intention.  Ever- 
green Cemetery  Asso.  v.  New  Haven,  43 
Conn.  234,  242,  21  Am.  Rep.  643. 

[6]  The  claim  of  counsel  for  the  tax  com- 
mlssdoner  that,  since  that  portion  of  the  act 
under  consideration  embodies  an  exemption 
from  the  operation  of  the  general  rule  pre- 
scribed by  the  act,  it  should  receive  a  strict 
construction,  is  nc^  well  made.  The  rule  of 
construction  thus  appealed  to  is  one  which 
has  its  limitations,  as  Is  clearly  pointed  out 
in  Tale  University  v.  New  Haven,  71  Conn. 
316,  329,  42  Aa  87,  43  L.  R.  A.  490,  and  the 
present  situation  Is  one  which  comes  well 
within  them. 

Turning  now  to  the  history  of  inheritance 
tax  legislation  in  this  state  for  light  which 
It  may  throw  on  the  subject  of  inquiry,  we 
find  that  the  first  legislative  attempt  in  that 
direction  was  made  in  1889,  when  a  statute 
was  enacted  laying  such  taxes,  but  spedflc- 
ally  exempting  property  passing  to  or  for 
some  charitable  purpose  defined  as  including 
"gifts  to  any  educational,  benevolent,  eccle- 
siastical or  missionary  corporation,  associa- 
tion or  object"  Public  Acts  of  1889,  chap. 
180,  i  1.  In  the  matter  of  exemption,  the 
law  remained  unchanged  until  1897,  when,  in 
reframing  the  act  nothing  was  said  upon  that 
subject.  Public  Acts  of  1897,  chap.  201.  This 
silence,  incomprehensible  as  it  may  appear 
In  view  of  the  traditional  policy  of  the  state. 


continued  until  1911,  save  for  the  passage  in 
1909  (Public  Acts  of  1909,  chap.  218)  of  an  act 
exempting  "gifts  of  paintings,  pictures,  books, 
engravings,  bronzes,  curios,  bric-a-brac,  arms 
and  armor,  and  collections  of  articles  of 
beauty  or  interest  made  by  wUl  to  any  cot- 
poration  or  institution  located  in  this  state 
for  free  exhibition  and  preservation  for  pnt>- 
lie  benefit"  At  the  session  In  1911  an  act, 
consisting  of  seven  lines  only,  was  passed 
which  provided  for  the  exemption  of  all  gifts 
thereafter  made  by  will  to  or  for  the  benefit 
of  any  corporation  or  institution  located  In 
the  state  "which  receives  state  aid  by  appro- 
priations provided  for  by  the  General  Stat- 
utes," and  further  providing  that  the  exemp- 
tion should  extend  to  all  like  gifts  thereto- 
fore made  to  or  for  the  b«iefit  of  such  corpo- 
rations or  institutions  on  which  a  succession 
tax  had  not  been  paid.  Public  Acts  of  1911, 
chap.  148.  In  1013  the  succession  tax  law 
was  extensively  revised,  and  In  that  revisioa 
all  property  passing  in  trust  for  any  chari- 
table purpose  to  be  carried  out  within  tbe 
limits  of  this  state,  or  to  or  for  the  use  ot 
municipal  corporations  of  the  state  tea  pub- 
lic purposes,  and  gifts  of  the  kind  covered 
by  the  amendment  of  1909  were  exempted 
from  the  tax  imposed  by  the  act  Public 
Acta  of  1913,  chap.  231,  {  2.  Then  followed 
tlte  act  of  1916,  again  remodeling  and  elab- 
orating the  law,  and  containing  the  provision 
under  consideration  in  tbe  place  of  that  em- 
bodied in  the  act  of  1913. 

This  history,  with  its  frequently  recurring 
changes,  is  barren  of  indication  aa  to  the 
intended  meaning  of  the  phrase  under  con- 
sideration, except  such  as  may  be  derived 
from  the  legislation  of  1911  and  subsequent 
years. 

EYom  tbe  latter  legislation  it  would  appear 
that  the  General  Assembly  had  become  awak- 
ened, in  some  degree  at  least  to  the  lade  of 
wisdom  shown  in  the  act  of  1897,  In  that 
the  state  was  made  to  take  toll  of  all  pri- 
vate benefactions  coming  within  the  juris- 
diction of  courts  of  probate,  whether  or 
not  they  were  made  in  favor  of  organized 
agencies  engaged  in  the  performance  of  a 
work  in  the  interest  of  the  public  welfare. 
How  full  that  awakening  was,  as  shown  by 
the  amendment  of  1911,  is  not  altogether  ap- 
parent It  is  curiously  phrased,  in  that  It 
in  terms  limits  tbe  state  aid  by  appropria- 
tions to  appropriations  by  general  statutes. 
Whether  tbe  inclusion  of  that  quallflcatlon 
was  Inadvertent  or  intentional  we  have  no 
means  of  knowing.  If  the  latter  was  the 
case,  the  act  was  one  of  very  narrow  ap- 
plication, since  appropriations  by  general 
statute  are  very  exceptional.  If  the  for- 
mer, and  the  Intention  was  to  confine  the 
exempted  corporations  and  Institutions  to 
those  receiving  state  aid  through  appn^ria- 
tions,  it  was  Intended  to  be  what  counsel  ft>r 
the  tax  commissioner  say  that  tbe  act  of  1916 


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proTldes  in  tbe  absence  of  any  qualUying 
vrords  at  all. 

Wbatever  the  legislative  Intent  was  which 
the  amendment  of  1911  attempted  to  express, 
that  embodied  in  the  act  of  1913  is  unmis- 
takable. Apparently  the  General  Assembly 
had  come  to  realize  that  a  sonnd  pnbUc  pol- 
icy dictated  that  the  state  should  not  ap- 
propriate to  itself  for  use  for  its  public  pur- 
poses generally  property,  or  any  portion  of 
property,  which  had  been  dedicated  by  its 
late  owner  to  public  charitable  uses,  and  that 
consistency  of  state  action  demanded  that 
such  appropriation  should  not  be  made  where, 
for  a  similar  rea&on,  taxation  was  foregone. 
At  any  rate,  and  for  some  reason  it  regard- 
ed as  sufficient,  it  provided  broadly  that  all 
property  passing  in  trust  for  a  charitable 
purpose  should  be  exempt  from  the  payment 
of  toheritance  taxes,  thus  going  back  to  and 
adopting  the  policy  embodied  in  the  original 
act  of  1889. 

Our  legislation  having  thus,  after  a  wide 
departure  and  sundry  experiments:,  come 
back  to  where  It  begun,  and  to  a  policy  con- 
sistent with  tliat  which  has  marked  our  tra- 
ditional attitude  toward  corporations  and  in- 
stitutions engaged  in  service  for  the  public 
weal,  in  harmony  vrlth  our  treatment  of  the 
property  of  such  corporations  and  institu- 
tions in  other  respects,  and  supported,  as  we 
have  seen,  by  dictates  of  sound  reason,  did 
the  General  Assembly  of  1915  Intend  to  de- 
part again  and  take  a  step  back  from  the  po- 
sition assumed  in  19137  If  it  did,  the  way 
was  open  for  it  to  accomplish  that  result  by 
the  use  of  plain  and  simple  language — some 
such  language,  for  instance,  as  that  which 
the  amendment  of  1911  suggests.  It  would 
have  been  the  simplest  thing  in  the  world  to 
have  expressed  it  in  unmistakable  language, 
and  it  is  little  short  of  inconceivable  that  if 
it  was  the  legislative  purpose  to  limit  the 
exemption  to  gifts  to  corporations  and  in- 
stitutions in  receipt  of  state  aid  through  the 
medium  of  appropriations,  that  it  did  not  say 
so  unequivocally,  and  not  leave  the  desired 
limitation  to  be  supplied  by  Interpretation. 
The  tax  commissioner's  claim  asks  us  to  sup- 
ply such  unexpressed  qualification.  It  asks 
us  to  say  that  when  the  General  Assembly 
used  the  term  "state  aid" — a  term  of  com- 
prehensive meaning,  as  we  have  seen — It 
meant  such  aid  furnished  by  a  particular 
means  and  in  a  particular  method.  We  are 
unable  to  see  any  valid  reason  for  so  limit- 
ing the  language  It  used,  and  thus  supplying 
by  implication  the  words  without  wlilch  the 
desired  qualification  isr  not  suggested. 

Certainly  no  inference  that  the  term  "state 
aid"  In  the  1915  act  was  intended  to  be  un- 
derstood with  the  qualification  that  the  aid 
should  be  by  state  appropriation  or  direct 
payment  from  the  treasury  can  reasonably  be 
drawn  from  the  fact  that  the  same  words 
"state  aid"  appear  in  the  1911  act,  accom- 


panied with  tbe  qualification  that  tbe  aid 
should  be  by  appropriations.  Rattier  is  the 
omission  of  the  qualifying  words  once  used 
confining  the  aid  to  tliat  by  appropriations 
suggestive  of  an  intentional  omission  of  them. 

Neither  does  the  fact  that  ditferent  lan- 
guage was  used  in  tbe  act  of  1915  from  that 
of  the  act  of  1913  furnish  a  substantial  basis 
for  an  inference  that  a  radical  departure 
from  the  rule  prescribed  in  the  former  law 
was  intended,  much  less  the  particular  de- 
parture claimed  by  the  tax  commissioner.  It 
might  well  be  that  tbe  change  of  language 
was  prompted  by  a  desire  to  supply  a  defi- 
nite and  precise  t«Bt  in  place  of  one  less  pre- 
cise, and  to  confine  the  benefits  of  the  ex- 
emption to  corporations  and  institutions 
whose  public  service  character  had  received 
legislative  certification  by  grants  of  aid  ei- 
ther directly  or  by  exemption  from  taxation. 
But  whether  so  or  not,  and  whatsoever  other 
inferences  may  fairly  be  drawn  from  anteced- 
ent legislation,  the  fact  remains  that  the 
General  Assembly  of  1915  did  not  use  lan- 
guage indicating,  with  any  reasonable  degree 
of  certainty,  its  purpose  to  impose  succession 
taxes  upon  property  passing,  upon  the  death 
of  its  owners,  to  corporations  and  institu- 
tions which,  by  reason  of  their  character  as 
corporations  and  institutions  receiving,  hold- 
lug,  and  administering  property  solely  In  the 
interest  of  the  public  welfare,  were  in  the 
enjoyment  of  the  aid  of  the  state  by  way  of 
exemptions  from  taxation. 

[6,  7]  The  court  of  probate,  In  making  its 
computations  for  the  purpose  of  determln 
ing  tbe  amount  of  tax  to  be  paid  by  the  exec 
utors,  and  In  framing  its  order  and  decree, 
made,  as  the  tax  commissioner  concedes,  two 
errors.  One  of  these  was  in  omitting  from 
its  deductions  from  the  total  amount  of  tbe 
appraisal  of  the  Inventory  and  the  gains  to 
be  added  thereto  to  obtain  the  net  estate 
passing  to  beneficiaries  the  following  items, 
to  wit:  (1)  19,017.97  paid  by  the  executors 
to  the  state  of  New  Jersey  as  inheritance 
taxes;  (2)  $1,399.90  paid  by  them  to  the  tax 
collector  of  New  Haven  as  taxes;  and  (3) 
$703.09  paid  by  them  to  the  United  States 
Internal  revenue  collector  as  an  income  tax. 
By  reason  of  these  omissions,  which  total 
$11,126.86,  the  total  amount  passing  to  bene- 
ficiaries, as  ascertained,  was  too  large  to 
that  extent.  This  error  is  one  which  re- 
quires a  modification  of  the  decree  in  sev- 
eral placed,  and  renders  Incorrect  the  court's 
final  determination  and  adjudication  as  to 
the  amount  of  tax  due.  The  other  error 
arose  from  the  computation  of  the  tax  to  be 
paid  at  8  per  cent  upon  the  net  estate  not 
exempt,  whereas  it  should  have  been  figured 
at  5  per  cent  on  $49,500,  6  per  cent  on  $200,- 
000,  and  7  per  cent  on  the  balance.  Correc- 
tions, as  to  which  the  parties  are  agreed 
should  be  made  in  the  decree  wherever  these 
errors  or  their  results  appear. 

The  superior  court  is  advised  to  render  ita 


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101  ATLAiniC  BEPOBTBB 


(CODD. 


judgment  (1)  affirming  so  mucb  of  the  order 
and  decree  ot  the  coort  of  probate  as  ad- 
judged that  the  gifts  to  Yale  University,  the 
Elrst  iJccleslastlcal  Society  of  New  Haven, 
and  the  New  Haven  City  Burial  Association 
ere  exempt  from  the  payment  of  an  inherit- 
ance tax;  (2)  modifying  said  order  and  decree 
so  that  It  shall  declare  that  the  legacies  to 
the  Home  for  the  Friendless  and  the  Lowell 
House  are  likewise  exempt;  (3)  amending  It 
by  incorporating  therein  the  corrections  out- 
lined In  the  paragraph  of  the  opinion  imme- 
diately preceding  this  rescript ;  and  (4)  mak- 
ing such  other  incidental  changes  in  It  as 
may  be  necessary  in  order  that  It  may  cor- 
rectly state  the  results  flowing  from  the  mod- 
ification, amendments,  and  corrections  thus 
made. 

No  costs  will  be  taxed  In  favor  of  any  of 
the  parties  in  this  court. 

SHUMWAY  and  TUXTLB,  JJ.,  concurred. 

WHEELBB,  J.  (dissenting).  Five  benefi- 
ciaries under  Mr.  Hotchkiss'  will  claim  ex- 
emption from  the  payment  of  the  succession 
tax  by  virtue  of  the  statute  which  exempts 
"all  property  passing  to  or  in  trust  for  the 
bene&t  of  any  corporation  or  Institution  lo- 
cated in  this  state  which  receives  state  aid." 
The  question  for  decision  is  whether  each  of 
these  beneficiaries  Is  "a  corporation  or  Insti- 
tution which  receives  state  aid,"  P.  A.  1915, 
chap.  332. 

Each  of  these  beneficiaries  has  been  receiv- 
ing from  the  state  an  exemption  from  or- 
dinary taxation.  The  only  basis  upon  which 
their  claim  is  supiwrted  In  the  majority  opin- 
ion is  that  the  exemption  from  ordinary  tax- 
ation accorded  tbem  is  the  receipt  by  them 
of  state  aid.  The  issue  is  thus  a  narrow  one, 
Does  the  term  "state  aid,"  as  used  in  the 
succession  tax  law  of  1915,  include  aid  ren- 
dered by  way  of  exemption  of  property  from 
taxation? 

The  court  relies  for  Its  conclusion  upon  (1) 
the  ordinary  meaning  of  "state  aid,"  (2)  our 
Judicial  definition  of  the  term;  (3)  the  ab- 
sence of  anything  In  our  statutes  indicating 
ttiat  the  use  of  this  term  is  other  than  Its 
ordinary  one;  (4)  the  history  of  our  succes- 
sion tax;  (5)  the  existence  of  a  public  policy 
in  favor  of  the  exemption  of  these  institu- 
tions and  corporations  from  the  succession 
tax. 

We  will  take  up  these  points^in  order. 
The  court  quotes  our  definition  of  "state 
aid"  from  Beach  v.  Bradstreet,  85  Conn.  344, 
333,  82  Aa  1030,  Ann.  Cas.  1913B,  946, 
"State  aid  Is  support  or  assistance  furnished 
by  the  state,"  and  says  that  the  qualifying 
word  "state"  Is  of  no  significance  save  as 
indicating  the  source  of  the  aid.  Hence  It 
is  argued  any  form  of  support  or  assistance 
furnished  by  the  state,  whether  by  money 
grant,  or  by  excusing  corporation  or  institu- 
tion from  the  payment  of  taxes,  falls  within 


the  ordinary  and  natural  use  of  language 
under  the  term  "state  aid." 

As  It  seems  to  us,  the  word  "state"  in  tlie 
term  "state  aid,"  and  in  the  definition  of 
Beach  v.  Bradstreet,  is  all-Important,  for 
there  can  be  no  state  aid  unless  the  state 
furnishes  the  support  or  assistance. 

The  opinion  quotes  a  part  of  our  defini- 
tion in  Beach  v.  Bradstreet  We  shall  get  a 
clearer  view  of  the  definition  if  we  have  it 
before  us  entire: 

'The  ordinary  definition  of  'aid'  is  help,  snp- 
port,  or  assistance.  'State  aid'  is  support  or  as- 
sistance furnished  by  the  state  to  its  institu- 
tions, organizations,  or  individuals  for  a  pub- 
lic purpose.  It  is  a  term  of  our  statutes  ap- 
plied to  pecimiary  assistance  furnished  by  the 
state  to  towns,  schools,  etc.,  and  for  internal 
improvements— all  recognized  public  purposes." 

Our  definition  called  for  (1)  support  or 
assistance,  (2)  furnished  by  the  state,  ©)  for 
a  public  purjwse. 

To  "furnish"  Is  to  provide  for,  to  give.  It 
presupposes  the  giving  of  pecuniary  assist- 
ance or  support  directly.  One  would  not  in 
the  natural  use  of  language,  speak  of  fa^ 
nlstaing  assistance  to  A.  when  what  was 
done  was  not  to  give  A.  something,  but  to 
relieve  A.  fi-om  paying  a  public  obligation 
due  the  state.  Affirmative,  and  not  merely 
negative,  action  is  required. 

The  definition  In  Beach  v.  Bradstreet  was 
Intended  to  Include  aid  furuisbed  by  the 
state,  either  in  a  pecuniary  way,  or  by  way 
of  support  furnished  through  appropriations 
made  to  that  end.  This  becomes  doubly 
clear  when  we  read  this  definition  in  con- 
nection with  the  statute  there  under  con- 
sideration. 

Since  the  state  cannot  furnish  either  pe- 
cuniary assistance  or  support  unless  there 
be  an  existing  appropriation  under  law  for 
a  particular  purpose,  the  furnishing  of  sup- 
port is  in  reality  the  furnishing  of  pecuniary 
assistanca  The  definition  of  Beach  v.  Brad- 
street does  not  include  as  "state  aid"  the 
indirect  assistance  afforded  one  by  relief 
from  the  payment  of  taxes.  When  that  opin- 
ion was  rendered  no  such  claim  was  made 
before  tbe  court  and  the  court  had  no 
thought  of  It 

The  majority  opinion  meets  the  contention 
of  the  tax  commissioner  that  the  use  of  the 
term  "state  aid"  in  our  statutes  is  in  the 
sense  of  pecuniary  assistance,  or  support, 
by  the  statement  that  It  finds  scant  proof 
of  such  an  accepted  statutory  use  of  this 
term  from  Its  use  In  the  Indices  of  our  stat- 
ute and  in  the  two  sections  of  the  statutes 
to  which  It  alludes  in  the  opinion.  If  these 
Instances  were  all  that  the  statutes  revealed, 
certainly  their  conclusive  character  could 
not  be  maintained.  The  contention  of  the 
tax  commissioner  rests  upon  a  much  broader 
base  than  this. 

We  shall  not  attempt  an  exhaustive  re- 
view of  our  statutes,  but  will  point  out  the 
use  of  this  term  in  the  body  and  title  of 
our  statutes,  in  the  beading  and  marginal 


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Conn.) 


CORBIIT  y.  BALDWIN 


841 


notes,  and  In  the  Indices  of  our  statutes, 
suflSdently  to  establish  that  the  recognized 
statutory  use  of  this  term  conforms  to  our 
rlew  of  Its  meaning. 

In  the  Bevlslon  of  1902  we  find  four  ref- 
erences  to  state  aid  In  the  body  of  statutes. 
Sections  3019,  183,  184,  and  1368. 

In  PubUc  Acts  1913,  chap.  25,  P.  A.  1911, 
chap.  187,  and  P.  A.  1903,  chap.  161,  refer- 
ences to  state  aid  are  made  In  the  body  of 
the  statutfe  In  all  of  these  Instances  In 
which  this  term  appears  In  the  body  of  the 
statute  it  refers  to  pecuniary  assistance. 

The  term  Is  used  in  the  beading  of  sec- 
tions 3019,  2889,  and  2242  of  the  General 
Statutefi,  and  in  each  Instance  it  refers  to 
pecuniary  assistance. 

This  term  is  found  in  the  UUe  of  Public 
Acts  1913,  chap.  172;  P.  A.  1913,  chap.  25;  P. 
A.  1911,  chap.  183;  P.  A.  1909,  chap.  82; 
P.  A.  1907,  chap.  232;  and  P.  A.  1905.  d>ap. 
226.  In  each  of  these  instances  the  statutes 
refer  to  pecuniary  assistance. 

The  marginal  notes  to  the  following  stat- 
utes contain  this  term  and  the  statutes  refer 
to  pecuniary  assistance:  Public  Acts  1916, 
chap.  335;  PubUc  Acts  1913,  chaps.  167,  172; 
PubUc  Acts  1911,  chap.  187;  PubUc  Acta 
1907,  chap.  216 ;  and  Public  Acta  1903,  chap. 
102. 

In  the  Index  to  the  Revision  of  1902,  un- 
der the  term  "state  aid,"  one-half  of  the 
references  are  to  direct  pecuniary  aid,  and 
one-half  to  support  fumUibed  by  the  state 
through  appropriations  made  to  that  end. 

Id  the  indices  of  Public  Acta  of  1913,  1911, 
and  1907,  this  term  is  used  In  reference  to 
statutes  affording  direct  pecuniary  aid. 

Neither  In  the  Revision  of  1902,  nor  In  any 
pnbllc  act  thereafter,  is  the  term  "state  aid" 
used  in  the  sense  of  an  exemption  from  taxa- 
tion. We  have  made  an  examination  of  the 
statutes  preceding  1902,  but  necessarily  it 
has  not  been  a  completely  exhaustive  one, 
and  in  no  single  Instance  have  we  found 
that  "state  aid"  was  used  in  the  statutes  in 
the  sense  In  which  my  Brethren  use  it  No 
Instance  of  sach  a  statutory  use  was  point- 
ed out  to  us  by  counsel  for  the  baiefldarles 
and  none  has  been  found  by  the  oonrt  Un- 
der these  circumstances,  no  conclusion  is 
permissible  but  that  the  nse  of  the  term 
"state  aid"  In  the  PubUc  Acta  of  1915  was 
that  which  had  always  obtained  In  our 
statntes,  viz.  assistance  furnished  by  the 
state  by  direct  pecuniary  grant,  or  support 
famished  by  the  state  through  an  appro- 
priation duly  made. 

Our  Private  Acta  show  that  the  property 
of  many  corporations  and  Institutions  devot- 
ed to  charitable  purposes  are  by  their  diar- 
ter  exempt  from  taxation  in  whole  or  in 
part,  while  the  property  of  many  other  cor- 
porations devoted  alike  to  charitable  pur- 
poses is  not  exempt.  Under  the  court's  in- 
terpretation of  "state  aid,"   bequesto  and 


devises  to  all  of  these  institutions  and  cor- 
porations which  are  not  exempt  from  taxa- 
tion, and  which  do  not  receive  from  the  state 
assistance  either  in  money  grant  or  support, 
are  subject  to  the  succession  tax.  So  that 
under  our  law  not  every  corporation  or 
Institution  devoted  to  charitable  ends  Is  ex- 
empt from  the  payment  of  ordinary  taxes 
as  the  court  assumes,  nor  from  the  pay- 
ment of  the  succession  tax.  This  Inequality 
which  the  court  finds  so  glaring  an  Injustice 
is  not  relieved  by  the  court's  extension  of 
the  meaning  of  "state  aid"  to  exemptions 
from  taxation. 

Again  some  of  these  corporations  and  in- 
stitutions are  exempt  in  whole  and  some  In 
part  indicating  differences  In  legislative  pol- 
icy towards  these  institutions  and  corpora- 
tion. By  the  court's  interpretation  of  "state 
aid"  these  differences  are  Ignored  and  the 
least  exemption  from  taxation  carries  with 
it  complete  exemption  from  the  payment  of 
the  succession  tax.  The  court  ignores  a 
settled  legislative  public  policy  and  recog- 
nizes a  public  policy  which  has  never  ex- 
isted. Again  some  of  these  Institutions  are 
made  exempt  from  taxation  provided  the 
town  of  their  domicile  so  votes.  These  in- 
equalities and  inconsistencies  consequent  up- 
on the  court's  interpretation  would  be  avoid- 
ed tf  "state  aid"  Is  accorded  Ita  settled 
statutory  meaning.  If  it  is  held  to  Include 
exemptions  from  taxation  these  will  be  per- 
petuated. 

Is  it  likely  that  the  General  Assembly  in- 
tended that  corporations  and  institutions  to 
which  it  had  accorded  a  partial  exemption 
from  taxation  should,  by  reason  of  this  ex- 
emption, receive  complete  exemption  from 
the  payment  of  any  and  aU  succession  taxes 
upon  bequeste  and  devises  to  it,  no  matter 
how  large?  The  history  of  exemption  In  our 
succession  tax  legislation,  far  from  support- 
ing the  theory  that  a  tax  exempUon  is  state 
aid,  is  persuasive  that  "state  aid,"  as  used 
in  the  succession  tax  act  of  1915,  was  not 
Intended  to  Include  aid  by  way  of  a  tax  ex- 
emption. Our  first  succession  tax  act  made 
all  property  within  the  jurisdiction  of  the 
state  subject  to  this  tax,  other  than  proi>erty 
passing  by  will  or  by  the  intestate  law  to  or 
for  the  use  of  some  charitable  purpose,  or 
purpose  strictly  public  within  the  state.  Pub- 
Uc Act,  1889,  chap.  180,  }  L 

PubUc  Act  1897,  chap.  201,  repealed  the 
act  of  1889,  and  enacted  a  succession  tax 
act  which  omitted  this  exception.  Under  this 
act  aU  property  devoted  to  a  charitable  pur- 
pose was  subject  to  the  succession  tax.  So 
the  law  remained  untU  the  passage  of  PubUc 
Act  1911,  chap.  148,  which  provided  that  aU 
glfto  by  wlU  to  or  for  the  benefit  of  any 
corporation  or  institution  located  in  this 
state,  "whlcdi  receives  state  aid  by  appropria- 
tions provided  for  by  the  General  Statutes, 
•    «    •    shaU  be  exempt  from  the  payment 


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101  AXLAienC  REPORTEB 


(GCSUL 


of  any  succession  tax."  For  the  first  time 
In  the  history  of  our  succession  tax  acts  the 
receipt  of  state  aid  was  made  a  condition  of 
exemption.  When  the  act  of  1911  was  pass- 
ed, state  aid  was  glren  to  some  17  hospi- 
tals through  appropriations  made  by  public 
act  Public  Acts  1900,  chap.  118,  and  sec- 
tion 2852.  In  the  session  of  1911,  these 
grants  to  hospitals  were  made  through  the 
Si)eclal  Laws,  and  these  aK>roprlatlons  to 
our  hospitals  comprised  then,  as  now,  the 
greater  part  of  all  state  aid  by  way  of  ap- 
proprlaticms  by  direct  gift  or  by  support  fur- 
nished. It  would  be  futile  to  claim  that  state 
aid  by  appropriations  Includes  aid  by  way  of 
exemption  from  taxation. 

In  Public  Act  1913,  chap.  231,  the  act  of 
1911  was  repealed,  and  it  was  provided  that 
any  property  passing  by  will  or  Inheritance 
in  trust  for  any  cliaritable  purpose  shall  be 
exempt  from  the  succession  tax.  There  has 
thus  been  nothing  up  to  this  time  to  indi- 
cate that  the  receipt  of  an  exemption  from 
taxation  was  state  aid,  or  that  It  weis  Intend- 
ed in  any  of  these  acts  to  Include  within  Qie 
exemption  from  the  succession  tax  property 
exempt  from  ordinary  taxes.  The  act  of 
1913  Indicates  a  return  to  the  early  policy  of 
exemption  of  the  1889  act 

PubUc  Act  1915,  chap.  332,  recast  the  suc- 
cession tax  law,  repealed  the  act  of  1913,  and 
re-enacted  the  act  of  1911,  except  that  It 
omitted  the  words,  "by  appropriations  pro- 
vided for  by  the  General  Statutes."  The  rea- 
son for  the  omission  is  apparent  Dp  to  the 
passage  of  this  act  It  must  be  conceded  that 
there  were  only  two  forms  of  state  aid  known 
to  our  statute  law,  viz.  one  by  direct  gift  and 
one  by  the  furnishing  of  support  by  means 
of  an  appropriation  made  for  that  purpose. 
State  aid  by  way  of  an  exemption  from  tax- 
ation was  unknown  to  our  law.  Prior  to  the 
session  of  1911,  state  aid,  as  we  have  point- 
ed out,  had  been  furnished  certain  designated 
hospitals  by  direct  appropriation,  and  with 
the  session  of  1911,  and  thereafter,  these 
appropriations  were  made  in  the  Special 
Laws.  A  re-enactment  in  1916  of  the  act  of 
1911  would  have  omitted  from  Its  benefits  the 
very- institutions  to  whom  state  aid  had  been 
the  most  generously  extended.  At  this  time 
It  was  understood  that,  while  the  majority  of 
the  appropriations  for  state  aid  were  made  in 
the  Special  Laws,  some  also  were  made  by 
the  Public  Acts,  and  some  aid  was  extended 
by  way  of  support  made  through  appropria- 
tions of  public  moneys  for  that  purpose. 

Under  these  circumstances,  the  General  As- 
sembly, desiring  that  all  corporations  and 
institutions  receiving  state  aid  should  be 
exempt  from  the  payment  of  the  succession 
tax,  could  not  limit  the  beneficiaries  to  those 
receiving  state  aid  by  appropriations,  other- 
wise those  receiving  state  aid  by  way  of  sup- 
port would  have  been  excluded,  but  by  mak- 
ing the  receipt  of  state  aid  the  condition  of 
(>xeni];>tlon  it  would  include  the  two -classes 


which  bad,  up  to  that  time,  been  the  sole  re- 
cipients of  state  aid.  The  reason  supporting 
this  form  of  exemption  is  found  in  the  fact 
that  increased  payments  by  the  state  will 
be  avoided  by  the  exemption  to  institutions 
receiving  state  aid,  but  in  the  case  of  in- 
stitutions and  corporations  to  whom  the  state 
makes  no  payment  or  furnishes  no  support  no 
such  reason  exists  for  making  the  exemption. 

We  do  not  think  it  Is  of  any  practical  im- 
portance whether  the  rule  of  strict  or  liberal 
construction  of  this  act  is  adopted,  since 
with  either  construction  the  result  must  be 
the  same.  Since  the  court  has  adopted  the 
liberal  rule  of  construction,  it  Is  well  to  in- 
stance the  rule  which  the  authorities  make 
applicable  to  a  case  where  an  exemption  is 
claimed  from  a  general  scheme  of  taxation. 
"Such  exemptions  are  neither  presumed  nor 
allowed,  unless  there  appears  from  the  lan- 
guage of  the  statute  or  charter  to  be  a  clear 
intention  on  the  part  of  the  Legislature  to 
make  an  exception  to  the  general  rule."  Coo- 
ley  on  Taxation  (2d  Ed.)  204 ;  Ford  r.  DelU 
&  Pine  Land  Ca,  164  U.  S.  663,  17  Sup.  Gt 
230,  41  L.  Ed.  690;  In  re  Hlckok's  Estate,  78 
Vt  259,  62  Atl.  724,  6  Ann.  Gas.  578.  "Stat- 
utes purporting  to  grant  exemptions  from 
general  taxation  are  to  be  strictly  construed." 
Cooley  on  Taxation,  205.  We  agree  with  the 
Attorney  General  when  he  says,  "If  the  Gen- 
eral Assembly  had  intended  to  exempt  all 
property  passing  to  corporatl<m8  or  Institu- 
tions exempt  from  taxation,  it  Is  fair  to  as- 
sume that  it  would  have  expressed  that  In- 
tent by  express  language,  as  in  the  New  York 
statute  and  in  the  laws  of  Vermont"  My 
Brethren  say  that  it  Is  inconceivable  that 
the  General  Assembly  did  not  In  words  Umlt 
the  meaning  of  "state  aid"  If  sudi  was  its 
Intent  Until  the  passage  of  the  act  of 
1915,  "state  aid,"  as  used  In  our  statutes, 
had  a  recognised  meaning,  and  its  use  In  oth- 
er statutes  will  be  presumed  to  be  with  a 
similar  meaning  unless  the  contrary  appears. 
There  Is  nothing  in  the  act  of  1015  which 
tends  to  show  that  it  was  Intended  by  dte  use 
of  "state  aid"  in  thU  act  to  add  to  its  statu- 
tory meaning  assistance  resulting  from  a  tax 
exemption. 

The  Special  Commlasioa  on  Taxation  In  Its 
report  to  the  General  AssemMy  In  1917  de- 
scribed the  tax  laws  enacted  in  1915  as 
"greater  both  In  number  and  importance  than 
the  General  Assembly  bad  ever  before  made 
at  a  single  session."  Among  the  16  principal 
changes  enumerated  was  "the  whole  inheri- 
tance tax  law  was  recast  •  •  ♦  The  ex- 
emptions of  trusts  for  diaritable  purposes 
within  the  state,  other  than  gifts  to  munic- 
ipal corporations  of  this  state  for  public  pur- 
posea,  were  repealed."  If  this  committee  had 
thought  that  corporations  and  Institatlons 
which  were  tax  exempt  were  not  subject  to 
the  succession  tax  it  cannot  be  doubted  that 
it  would  bare  pointed  out  that.  In  spite  of 


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OOBBIN  T.  BALDWIN 


843 


tbe  repeal  of  ttie  IdlS  proTlslon,  the  greater 
number  of  trusts  for  charitable  puipoaes 
were  not  effected  by  this  repeal 

UnqnestloDably  the  committee  were  of  the 
opinion  that,  under  the  act  of  1915,  all  such 
trusts,  except  those  receiving  aid  In  the  way 
of  money  or  support,  were  by  the  act  made 
subject  to  the  succession  tax.  The  commit- 
tee further  reported:  "We  recommend  the 
exemption  from  suocession  taxes  of  all  testa- 
mentary gifts  to  corporations  created  under 
the  laws  of  Connecticut  for  charitable  pur- 
poses." Would  It  have  so  reported  if  It  had 
been  of  the  opinion  that  all  corporations  ex- 
empt from  taxation  were  in  receipt  of  state 
aid?  The  significance 'of  the  conclusion  of 
the  committee  is  the  greater  from  the  fact 
that  its  chairman  was  former  Chief  Justice 
Baldwin. 

Contempomneons  construction  of  this  act 
Is  of  great  weight.  So  far  as  we  can  learn, 
tbe  claim  that  tax  exemption  Is  state  aid  has 
never  before  been  raised  In  any  proceeding, 
and  no  official  has  ever  acted  in  the  view 
that  a  charitable  trust  which  was  tax  exempt 
was  for  that  reason  in  receipt  of  state  aid. 

nie  majority  opinion  finds  in  the  legisla- 
tive history  of  the  exemption  from  ordinary 
taxes  of  pn^perty  dedicated  by  gift  to  public 
charitable  uses  a  policy  of  colony  and  state 
that  no  part  of  such  gifts  shall  be  depleted 
through  the  levy  of  a  tax  or  the  imposition 
of  other  state  burden  upon  it  And  the  court 
finds  in  a  present  proposal  to.  make  any  of 
these  gifts  subject  to  the  successi(m  tax  "a 
new  and  radical  departure  in  policy  in  strik- 
ing contrast  with  that  which  heretofore  has 
characterized  our  governmental  history." 
We  fear  the  strong  sympathy  of  the  court 
with  the  charitable  purposes  of  these  cor- 
porations and  institutions  which  claim  an 
exemption  from  the  payment  of  the  succes- 
sion tax  has  momentarily  caused  it  to  forget 
that  between  1897  and  1911  such  gifts  were 
subject  to  the  suocession  tax,  and  between 
1911  and  1913  tli^  were  so  subject  unless  the 
corporations  or  institutions  to  which  they 
were  glV«i  were  the  recipients  of  state  aid 
through  appropriations  under  tbe  General 
Statutes.  There  was  no  "new  and  radical 
departure" — merely  a  return  to  a  former 
policy  of  taxation. 

We  refrain- from  expressing  our  view  upon 
the  wisdom  ot  imposing  a  succession  tax  up- 
on any  corporations  or  institutions  devoted 
to  charitable  purposes.  We  regard  that  de- 
cision as  within  tbe  legislative  function.  The 
General  Assembly  enact  statutes,  the  Judi- 
ciary do  not 

That  Connecticut  had,  as  a  rule,  exempted 
corporations  and  institutions  devoted  to  char- 
itable purposes  from  the  payment  of  ordi- 
nary taxes  indicated  a  public  policy  as  to 
this  class  of  exemptions.  It  did  not  indicate 
a  public  policy  as  to  a  totally  different  form 
of  raising  revenue  by  means  of  death  charges. 
Our  first  succession  tax  law  was  passed  in 
1888;    necessarily  our  puUic  policy  as  to 


succession  taxes  originated  after  this  date. 
It  was  no  part  of  a  policy  originating  long 
before  the  succession  tax  law  was  passed. 

We  have  held  itbat  succession  taxes  are 
death  duties,  charges  upon  the  right  or  privi- 
lege of  devolution,  and  not  taxes  upon  prop- 
erty or  person.  Nettleton's  Appeal,  76  Conn. 
235,  56  Atl.  565;  Gallup's  Appeal,  76  Conn. 
617,  67  AH.  699;  Warner  v.  Corbin,  100  Atl. 
354.  Since  suocession  taxes  are  a  totally 
different  concept  from  tbe  ordinary  tax,  it 
follows  that  a  public  policy  concerning  the 
ordinary  tax  has  no  relation  to  a  successloa 
tax.  The  history  of  our  succession  tax  laws 
furnishes  an  unanswerable  argument  to  the 
contention  that  the  puMlc  policy  of  the  state 
has  been  and  is  apilnst  making  all  gifts  to 
coriwrations  and  Institutions  devoted  to  pub- 
lic purposes  subject  to  the  succession  tax. 
After  an  experience  of  10  years  exempting 
from  the  payment  of  the  succession  tax  all 
property  of  sudi  corporations  and  institu- 
tions devoted  to  charitable  purposes,  tbe  ex- 
emptioQ  was  repealed  and  so  remained  for 
14  years.  This  change  In  oar  policy  was 
taken  with  deliberation. 

The  General  Assembly  enacted  the  1897 
statute  through  its  knowledge  that  the  liv- 
ing often  failed  to  pay  their  Just  share  of  the 
cost  of  government,  and  that  it  was  Justice 
to  the  state  that  in  the  final  settlement  of  the 
estate  of  the  dead  tbe  debt  of  the  deceased  to 
the  state  should,  at  least  in  part,  be  paid  be- 
fore payments  should  be  made  to  the  objects 
of  his  bounty,  even  though  these  were  chari- 
table trusts.  We  have  approved  of  this  as  a 
legitimate  reason  for  succession  taxes,  and 
so  have  the  United  States  Supreme  Court 
Hopkins'  Appeal,  77  Conn.  644,  640,  60  AtL 
657;  Plumber  v.  Coler,  178  U.  S.  115,  20  Sup. 
Ct  829,  44  li.  Ed.  998. 

That  the  Geujeral  Assembly  of  1807  intend- 
ed an  entire  reversal  of  the  early  policy  is 
perfectly  clear  from  a  reading  of  the  acts  of 
1889  and  of  1897.  The  fact  that  all  corpora- 
tions and  institutions  devoted  to  charitable 
purposes  were,  under  the  act  of  1897,  for  14 
years  subject  to  tbe  succession  tax,  is  con- 
clusive of  the  existence  during  that  time  of  a 
public  policy  favorable  to  the  imposition  of  a 
succession  tax  ui)on  charitable  trusts  of  this 
character.  The  change  in  1911,  exempting 
only  those  corporations  and  Institutions 
which  receive  state  aid  "by  appropriations 
provided  for  by  the  General  Statutes,"  indi- 
cated a  change  in  public  policy  to  the  end 
that  such  of  these  corporations  and  institu- 
tions as  received  state  aid  by  appropriations 
through  the  General  Statutes  should  be  ex- 
empt from  the  payment  of  succession  taxes. 
The  change  in  1913  indicated  a  reversal  to  the 
early  i)ollcy  exempting  aU  instltntlons  and 
corporations  devoted  to  charitable  puiiioses. 
The  change  in  1915  indicated  a  partial  re- 
versal of  the  policy  of  exemption  of  1013. 
There  was  no  indication  in  the  language  used 
or  In  the  title  or  history  of  this  act  that  it 
was  the  pubUc  policy  to  moke  evory  corpora- 


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101  ATLANTIO  BBPORIEB 


(P*. 


tion  and  Institution  which  was  exempt  from 
taxation  free  from  the  payment  of  the  sac- 
cession  tax. 

The  tax  commission  report  to  which  we 
have  referred  accompanied  Its  recommenda- 
tion that  all  charitable  trusts  be  made  free 
from  the  succession  tax  by  a  bill  carrying  out 
this  recommendation.  The  General  Assembly 
of  1917  «iacted  several  of  the  recommenda- 
tions of  this  commission,  but  re-enacted  the 
pert  relating  to  the  exemption  of  corpora- 
tions and  institutions  receiving  state  aid  Just 
as  It  appeared  in  the  act  of  1915.  The  Gen- 
eral Assembly  thus  refused  to  foUow  the  rec- 
ommendaton  of  the  commission,  and  exempt 
from  the  succession  tax  "all  property  passing 
to  or  In  trust  for  the  benefit  of  any  corpora- 
tion Incorporated  under  the  laws  of  this  state 
solely  for  charitable  purposes."  So  that  the 
latest  expression  at  the  public  policy  of  the 
state  Is  a  refusal  to  adopt  the  policy  which 
the  majority  opinion  holds  to  be  the  estab- 
lished public  policy  of  the  state. 

Under  the  court's  ruling,  every  corporation 
or  institution  which  is  exempt  from  ordinary 
taxation,  in  whole  or  in  part,  is  free  from  the 
succession  tax.  And  this  holds  whether  the 
corporation  or  institution  be  devoted  to  chari- 
table purposes  or  not.  Surely  the  General 
Assembly  never  intended  to  exempt  business 
Corporations  from  the  succession  tax,  al- 
though they  might  be  exempt  from  the  pay- 
ment of  ordinary  taxes.  Under  the  court's 
construction  of  Uiis  act,  its  effect.  Instead  of 
restricting  the  exemptions  of  1013,  would  en- 
large them  beyond  those  luiown  in  any  of  our 
succession  tax  laws. 

The  General  Assembly  which  passed  the 
1916  act  faced  a  serious  financial  situation. 
The  expenses  of  the  state  for  outran  its  reve- 
nue. The  Governor  of  the  state  recommended, 
and  the  General  Assembly  passed,  much  taxa- 
tion legislation  enlarging  the  old  and  discover- 
ing new  sources  of  revenue.  In  that  crisis  it 
would  Indeed  have  been  strange  had  Govern- 
or and  General  Assembly  intentionally  have 
released  from  the  operation  of  the  succession 
tax  charitable  trusts  which  are  tax  exempt, 
but  do  not  receive  state  aid,  when  the  amount 
Involved  was  a  very  substantial  sum.  The 
Tax  Commlssicm  of  1917  reported  as  their 
estimate  from  their  recommendation  that 
Connecticut  diarltable  corporations  be  made 
exempt  from  the  payment  of  succession  taxes 
the  following:  "Keductlon  of  succession  tax- 
es charged  to  Connecticut  charitable  corpora- 
tions, probably  on  the  average  about  $200,- 
000."  This  is  state  history,  and  it  tends 
strongly  to  show  that  the  General  Assembly 
did  not  intend,  by  the  act  of  1915,  to  include 
under  state  aid  tax  exemptions  granted  cor- 
porations and  insUtutions. 

We  concur  in  the  decisions  upon  the  other 
points  involved  in  these  appeals. 

RORABACK,  J.,  concurred. 


(2S7  Fa.  K2) 
WRIGHT  ▼.  BRISTOL  PATESIT  LEATHEB 
CO. 

(Supreme  Court  of   Pennffrlvania.     April  16, 
1917.) 

1.  Tbiai.  «s>180— Jddoment  on  the  Vkbdict 
— Statutb. 

Where  a  jury  has  disagreed,  a  party  who  Iiaa 
submitted  a  point  for  binding  instructions  in  his 
favor  has  the  right  to  move  the  court  for  judg- 
ment on  the  record  under  authority  of  the  Act 
of  AprU  20,  19U  (P.  U  70). 

2.  CONTKACTS  «=>176(1)  —  CoNSTBUonoN  — 
Question  fob  Jubt. 

Where  there  is  nothing  doubtful  or  ambigu- 
ous as  to  the  intention  of  the  parties  a^  dis- 
closed by  their  contract,  its  construction  is  a 
question  of  law  for  the  oourt. 

3.  CoNTBACTS  $s>271—Rbsci8SION— Notice. 

A  notice  for  the  rescisuon  of  a  contract  must 
be  clear  and  unambiguous  and  convey  an  un- 
mistakable purpose  to  insist  on  the  rescission. 

4.  CONTBACTB  ^=>264  —  RESCISSION— METHOD. 

Where  a  contract  reserves  to  one  party  th« 
right  to  rescind  it,  and  prescribes  the  mode  in 
which  it  may  be  done,  or  makes  the  doing  of 
certain  acts  a  condition  to  the  right  to  reacbd, 
such  party  cannot  rescind  in  any  other  way,  nor 
without  complying  with  the  conditions. 

5.  Sales  «=124,  127— Rescission— Noticb- 
Restobation. 

A  party  having  a  right  to  rescind  a  contract 
of  sale  and  who  electa  to  do  so  must  give  no- 
tice to  the  seller  and  offer  to  return  the  thing 
sold  before  suing  to  recover  back  his  money,  un- 
less tlie  consideration  is  entirely  worthless. 

6.  Saxes    «=»124—Fbaui>— Rescission— Res- 
toration. 

Rescission  <m  the  ground  of  fraud  and  fail- 
ure of  consideration,  etc.,  is  a  right  in  equity 
to  a  restoration  of  the  consideration,  and  the 
party  claiming  the  restoration  must  return  the 
property  or  reconvey  the  title. 

7.  Saum  «=»124  —  Rescission— Sufficienot. 

Under  a  contract  for  the  sale  of  a  secret 
formula,  executed  September  1,  1913,  providing 
that  the  buyer  should  have  tiie  right  at  any 
time  after  the  first  payment  to  discontinue  the 
use  of  the  formula,  and  that  on  notice  of  dis- 
contimiance  and  the  return  of  the  formula  by 
rcKisterod  mail  he  should  be  relieved  from  lia- 
WUty  for  further  payment,  a  failure  to  return 
the  formula  until  April  10,  1914,  did  not  effect 
a  rescission  so  as  to  relieve  the  buyer  from,  pay- 
ments to  that  date,  notwithstanding  his  claim 
that  the  formula  was  worthless,  and  that,  as  he 
had  memorized  it,  its  return  was  unnteessaiy. 

Appeal  from  Oourt  of  Common  Pleas,  Phil- 
adelphia  County. 

Assumpsit  by  Lucy  W.  Wright  against  the 
Bristol  Patent  Leather  Company.  Judgment 
for  plalntlfF,  and  defendant  appeals.  Af- 
firmed. 

The  facts  appear  in  the  following  opinion 
by  Rodgers,  J.,  in  the  court  of  common  pleas: 

This  is  an  action  in  assimipsit  to  recover  the 
balance  due  upon  five  installment  payments  on 
the  total  sum  of  $5,000,  under  a  contract  for 
the  absolute  sale  of  the  use  of  a  certain  secret 
formula  to  prepare  patent  leather  without  sun 
drying.  Defendant  reserves  to  itself  a  special 
right  to  rescind  at  any  time  before  final  pay- 
ment, upon  compliance  with  certain  conditions. 

[I]  The  case  was  tried  before  a  jury  on  Jan- 
uary 4  and  5,  1917.  Plaintiff  presented  a  point 
for  binding  instructions  in  her  favor  for  |1,500. 
with  interest,  which  was  refused.    The  jury  dis- 


«S3lV>r  other  cases  •••  aam*  toplo  and  KBT-NUUBSB  In  all  Kay-MuinlMied  Olgeatt  and  Iad«z« 

Digitized  by  VjOOQ IC 


Pa.) 


WRIGHT  V.  BRISTOL  PATENT  LEATHER  CO. 


845 


agreed  and  was  discharged.  Plaintiff  now  moyea 
for  judgment  in  her  favor  in  accordance  with 
the  provisions  of  the  act  of  April  20.  l&tl  (P. 
L.  70).  That  the  plaintiff,  having  aabmitted  a 
point  for  binding  direction  in  her  favor  has 
the  right  to  move  the  court  for  judgment,  in  ac- 
cordance with  the  act  of  April  20,  1»11  (P.  L. 
70),  has  been  decided  in  the  ease  of  Fanners'  & 
Breeders'  Mutual  Reserve  Fund  Lave  Stock  In- 
surance (>.  v.  Curran,  65  Pa.  Super.  Ct.  352, 
in  nn  opinion  by  Kephart,  J. 

The  material  facts  proven  upon  the  trial  arc 
mibstantiallv  as  follows:  The  contract  is  dated 
the  15th  day  of  September,  1913.  For  a  period 
of  about  six  months  prior  to  the  date  of  the  con- 
tract for  the  sale  and  purchase  of  the  formula  in 
question  the  defendant  company  had  been  car- 
rying on  experiments  with  a  fluid  mixture  fur- 
nished them  by  the  plaintiff  to  enable  it  to  test 
the  merits  and  value  of  the  process  for  use  in 
its  business,  before  committiDg  itself  to  the  con- 
tract- 

Section  3  of  the  contract  provides  the  method 
bv  which  the  defendant  might  terminate  or  re- 
scind the  contract,  and  thereby  relieve  itself  of 
the  payment  of  the  various  installments  fixed 
therein.  The  portion  of  said  section  important 
in  this  cause  is  as  follows:  "The  party  of  the 
first  part  shall  have  the  right  at  any  time  after 
the  first  nayment  has  been  made  to  discontinue 
the  use  of  such  formula  or  process  and  method 
of  treatment  and  upon  said  discontinuance,  no- 
tice of  which  has  been  sent  by  the  party  of  the 
first  part  to  the  party  of  the  second  part  by  reg- 
istered mail  to  the  last-known  address  of  the 
party  of  the  second  part,  together  with  the  re- 
turn of  said  formula,  the  party  of  the  first  part 
shall  not  be  reouired  to  make  any  further  pay- 
ments and  all  liability  on  the  part  of  the  party 
of  the  first  part  of  any  kind  whatsoever  under 
this  contract  shall  cease  and  terminate  abso- 
lutely," etc. 

Defendant  failed  to  return  the  paper  contain- 
ing the  formula  by  registered  mail,  as  providod 
for  in  this  section  of  the  contract,  until  April 
10,  1914.  Plaintiff  claims,  therefore,  that  under 
its  terms  she  is  entitled  to  a  payment  of  $500, 
which  became  due  Jnnunry  1.  1914,  nnd  a  pay- 
ment of  $1,000,  due  March  1,  1914.  The  defend- 
ant claims  that  it  is  entitled  to  have  a  jury  pass 
upon  the  following  questions: 

(a)  Was  the  formula  worthless  to  the  defend- 
ant in  its  business,  and  therefore  was  there  a 
■fiiilurp  of  consideration? 

(b)  Was  the  plaintiff  guilty  of  fraud  and  mls- 
Teprei^entation  as  to  her  formula  or  process  as 
a  means  of  inducing  defendant  to  make  the  con- 
tract? 

M  IMd  defendant  in  letters  dated  December 
16.  1913.  Decpmber  18.  1913,  and  December  24, 
1913,  substantinlly  perform  the  contract,  even 
though  its  performance  was  not  according  to  the 
terms  set  forth  in  the  agreement? 

Accepting  its  position  in  its  strongest  sense 
in  the  letter  of  Dncemhcr  24.  191.^.  to  plaintiff, 
wherein  defendant  claims  it  substantinlly  re- 
scinded the  contract,  we  find  inter  alia,"  this 
language :  "As  written  you,  we  can  do  nothing 
as  regards  to  sticking  until  spring,  and  if  you 
will  peruse  our  letters  of  the  16th  and  18th,  you 
win  note  that  our  reasons  are  ample.  When  we 
again  nm  into  warm  weather,  we  may  take  the 
subleot  un  again  with  .vou,  at  which  time  we 
■will  resume  our  payments  as  per  our  agreement. 
We  fire  sorry  that  our  experiments  wore  not  suc- 
cessful enoush  to  warrant  our  making  further 
payments  and  the  cost  of  further  experiments." 

In  connection  with  this  letter  the  president  of 
the  defendant  company  admitted  in  his  testi- 
mony at  the  trial  that  it  was  the  intention  of 
the  defendant  to  resume  experiments  with  the 
process  at  some  future  time.  Therefore  de- 
fendant appears  to  have  held  out  the  suggestion 
to  plaintiff  that  payment  under  the  contract 
would  be  renewed  or  resumed  in  the  summer  sea- 


son. In  this  attitude  of  defendant  probably  may 
be  found  the  reason  for  its  failure  to  return  the 
formula  to  plaintiff  by  registered  mail.  The 
president  of  defendant  company  testified  that 
the  failure  to  return  the  paper  containing  the 
formula  was  due  to  the  fact  that  he  considered  it 
worthless;  that  he  had  memorized  its  contents, 
placed  it  in  his  safe,  and  had  forgotten  it  en- 
tirely. 

[2]  In  our  opinion,  the  case  hinges  upon  the 
question  as  to  whether  the  defendant,  in  order 
to  be  released  from  further  payments  under  the 
contract,  was  not  bound  to  return  the  paper  con- 
taining the  formula  to  plaintiff  by  registered 
mail,  as  provided  in  the  contract.  Here  tiie  par- 
ties themselves,  after  about  six  months  of  ne- 
gotiating and  experimenting  with  this  process 
for  treatment  of  patent  leather,  have  provided 
the  terms  on  which  the  contract  they  finally 
entered  into  should  be  abrogated.  It  is  undis- 
puted that  defendant  did  not  pursue  the  method 
of  rescission  provided  therein.  We  are  persuad- 
ed that  neither  plaintiff  nor  defendant  can  dis- 
pense with  such  manner  of  cancellation  or  re- 
scission without  the  consent  of  the  other.  Where 
there  is  nothing  doubtful  or  ambiguous  as  to  the 
parties'  intentions  as  disclosed  in  the  contract, 
the  effect  of  them  is  for  the  court  to  decide  as 
a  question  of  law. 

[3]  In  Black  on  Resdssion  of  Contracts,  voL 
2,  §  574  (1916),  the  general  rule  is  hiid  down 
as  follows:  "To  be  effective,  a  notice  for  the 
rescission  or  termination  of  a  contract  must  be 
clear  and  unambiguous,  conveying  an  unques- 
tionable purpose  to  insist  on  the  rescission.  And 
where  the  conduct  of  one  having  the  right  to  re- 
scind a  contract  is  amMguous,  and  it  is  not  dear 
whether  he  has  rescinded  it  or  not,  be  will  be 
deemed  not  to  have  done  so." 

[4]  And  again  in  the  same  work  (volume  2,  $ 
613  [1916])  the  rule  is  held  to  be  that :  "Where 
a  contract  reserves  to  one  of  the  parties  the 
right  to  rescind  it,  and  also  prescribes  the  mode 
in  which  such  right  shall  be  exercised,  or  pro- 
vides that  certain  specified  acta  shall  be  done  h(y 
that  party  as  a  condition  upon  his  right  to  re- 
scind, it  must  be  strictly  followed,  and  the  par- 
ty cannot  rescind  in  any  other  mode  nor  without 
complying  with  the  conditions."  To  the  same 
effect  is  the  doctrine  in  Ruling  Case  Law,  vol.  6, 
p.  922. 

[5,  61  The  principle  in  Pennsylvania  is  well 
settled  that,  where  a  party  has  a  right  to  re- 
scind a  contract,  and  elects  to  do  so.  he  must 
give  notice  to  the  vendor  and  offer  to  return  the 
thing  sold  before  suit  to  recover  back  his  money, 
unless  the  thing  which  was  the  consideration 
of  the  contract  be  entirely  worthless ;  also  that 
rescission  on  the  groiud  of  fraud,  failure  of  con- 
sideration, etc,  is  a  right  in  equity  to  a  restora- 
tion of  the  consideration,  and  the  party  claiming 
the  restoration  must  return  the  property  attain- 
ed or  reconvey  the  title.  Babcock  v.  Chise,  61 
Po.  427,  100  Am.  Dec.  654;  Beetem's  Admin- 
istrators V.  Burkholder,  69  Pa.  249;  Howard 
V.  Turner,  155  Pa.  349,  26  AtL  753,  35  Am.  St. 
Rep.  883. 

In  Rumsey  v.  Shaw,  212  Pa.  576,  679,  61  Atl. 
1109,  1110,  it  was  held  that:  "When  a  party 
relies  upon  a  rescission  of  a  contract,  he  must 
show  that  he  elected  to  rescind  with  reasonable 
promptness  upon  the  discovery  of  the  fraud,  and 
must  tender  a  return  of  the  property  or  security 
which  was  the  subject-matter  of  the  contract 
Cornelius  v.  Lincobi  National  Bank,  15  Pa. 
Super.  Ct  82." 

Butler  et  al.  v.  School  District  of  the  Bor- 
ough of  Leighton,  149  Pa.  351,  24  AU.  308,  was 
an  action  for  the  price  of  furnaces  furnished  to 
schoolhonses  under  a  written  contract  A  pe- 
riod was  fixed  within  which  the  test  of  the  fur- 
naces was  to  be  made,  which  period  was  to  be 
extended  for  two  months  if  desired  in  writing 
before  the  first  limit  was  reached.  The  directors 
failed  to  give  notice  to  the  plaintiff  on  or  before 


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the  date  agreed  upon,  that  the  furnaces  did  not 
meet  the  requirements  of  the  contract.  There 
was  some  evidence  that  the  secretary  met  plain- 
tiff accidentally  and  told  him  that  there  was 
comnlaint  concerning  the  heaters.  The  court  be- 
low left  it  to  the  jury  to  say  whether  or  not  the 
conversation  amounted  to  notice.  On  appeal  the 
court  below  reversed,  and  the  Supreme  Court 
held  (149  Pa.  355,  24  Atl.  3081 :  "Where  there 
is  a  sale  upon  trial,  with  a  time  fixed  by  the 
partiest  a  failure  to  return  the  goods  or  give 
notice  in  accordance  with  the  agreement  makes 
the  sale  absolute." 

In  Southwark  Mills  Co.  ▼.  Slepin,  46  Pa. 
Super.  Ot  296,  it  was  held  that:  "Provisions 
in  a  contract  of  sale  that  cancellation  of  orders 
can  only  be  made  for  breach  of  contract,  and 
then  only  within  five  days  after  delivery  of  the 
goods,  and  that  the  purchaser  is  not  entitled  to 
allowance  for  defects  unless  claimed  within  ten 
days  after  delivery,  are  proper  and  reasonable, 
and  will  be  enforced  %  the  courts  according  to 
their  terms." 

Morrow  v.  Campbell.  7  Port.  (Ala.)  41,  31  Am. 
Dec.  704,  is  a  case  similar  in  its  facts  to  the 
case  under  consideration.  There  the  plaintiff 
sned  on  an  agreement  in  which  be  sold  defendant 
a  patent  right  for  land  in  Arkansas.  By  its  pro- 
visions defendant  agreed  to  pay  $500  unless  the 
contract  was  rescinded  on  or  before  October  1, 
1833,  by  return  of  the  deed  of  sale  of  said  right 
to  the  plaintiff.  On  or  before  that  day  plaintiff 
was  informed  that  the  deed  of  sale  was  lost  and 
that  defendant  abandoned  the  contract.  Ver- 
dict for  defendant.  Held  on  appeal.  Judgment 
reversed.  Collier,  C.  J.,  said  (7  Port  [Ala.]  44, 
31  Am.  Dec.  706) :  "It  has,  however,  been  urged 
that,  as  the  deed  could  subserve  no  purpose 
in  the  hands  of  the  plaintiff,  there  could  be  no 
necessity  for  requiring  its  return  before  the  re- 
scission of  the  contract.  Would  not  its  retention 
place  it  in  the  power  of  the  defendant  to  sell 
patent  rights  to  the  prejudice  of  the  plaintiff's 
interests?  Be  this  as  it  ma.v,  the  parties  them- 
selves have  provided  the  terms  on  which  their 
contract  shall  be  abrogated,  and  neither  can  dis- 
pense with  them,  without  the  consent  of  the 
other." 

[7]  We  are  of  opinion  that  the  construction  of 
the  contract  and  the  various  letters  which  were 
offered  in  evidence  were  for  the  trial  judge ;  that 
the  defendant  has  interposed  no  legal  defense, 
and  that  plaintiff  was  entitled  to  an  affirmance  of 
her  point  for  binding  instructions;  that  the 
return  of  the  paper  containing  the  formula,  by 
registered  mail,  to  plaintiff,  was  a  condition  pre- 
cedent that  the  defendant  was  otAiged  to  com- 
ply with  before  it  could  relieve  itself  of  liability 
to  pay  the  installments  as  they  fell  due  under 
the  contract.  There  was  no  definite  and  un- 
ambiguous notice  of  rescission  given  plaintiff 
by  defendant  until  April  10,  1914.  This  was 
a  letter  from  defendant's  attorneys  to  plaintiff, 
in  which  the  formula  was  returned  to  her.  Hav- 
ing failed  to  return  the  formula  until  after  two 
installments  had  fallen  due  under  the  contract, 
the  defendant  became  liable  to  plaintiff  for  the 
inBtallmenta  of  $500  which  fell  due  January  1, 
1914,  and  of  $1,000  due  March  1,  1914,  with 
interest  thereon  from  their  respective  due  dates. 

We,  therefore,  sustain  the  plaintiff's  motion, 
and  now  enter  iudgment  in  her  favor  and  against 
the  defendant  for  the  sum  of  $1,766.24,  being  the 
plaintiff's  claim  of  $1,500  (the  two  installments 
above  mentioned),  with  interest  to  into. 

On  the  trial  the  jury  disagreed,  and  the 
ivurt  thereafter  entered  Judgment  for  the 
plaintiff  on  the  record  In  the  sum  of  $1,766.24, 
being  the  amount  of  the  claim  with  Interest. 
Defendant  appealed. 


Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKBE,  FRAZE5R,  and  WAI^ 
LING,  JJ. 

Blton  3.  Buckley,  of  Philadelphia,  for  ap- 
pellant Grover  C.  Ledner  and  Charles  I. 
Cronin,  both  of  PhUadelphia,  for  appeUee. 

PER  CURIAM.  Tlila  judgment  is  affirmed. 
on  the  opinion  of  the  learned  court  below  di- 
recting it  to  be  entered. 


(2S7  Fa.  sa) 
JOSEPH  V.  NATLOR. 

(Supreme   Court   of  Pennsylvania.     April   18, 
1917.) 

1.  Daiuoes     «=»151— Pleading— ExiCMPLABT 
Dauaoes. 

As  a  general  rule  of  pleading.  It  is  not  neces- 
sary to  claim  exemplary  damages  by  name; 
It  bemg  sufficient  it  the  facts  alleged  and  the 
proofs  be  such  as  to  warrant  their  assessment 

2.  Husband  and  Wrra  «s»349— Drbauchino 
Wife— Punitive  Dakaqes. 

A  husband  may  recover  punitive  damages 
for  the  debauching  of  his  wife,-  not  only  by 
way  of  compensation,  but  as  punishment,  as, 
when  a  wrongful  act  is  done  intentionally,  with- 
out just  cause  or  excuse,  malice  is  presumed. 

3.  Husband  and  Wife  <8=326,  334(1)— Aukw- 
ATiON  OF  Affections— Damages. 

_  The  fact  that  husband  and  wife  may  not  be 
living  together  harmoniously  when  the  wife's 
affections  are  alienated  does  not  affect  the  hus- 
band's right  to  recover  therefor,  although  the 
circumstance  may  be  considered  in  mitigation  of 
damages. 

4.  Tbiax   «=>146— Withdrawai.  or   Jubob — 
Ibrelevant  Remarks— Objection. 

In  an  action  to  recover  for  debauching  plais- 
titTs  wife  and  for  the  alienation  of  her  affec- 
tions, the  refusal  to  withdraw  a  juror  on  defend- 
ant's motion  because  of  her  immaterial  and  ir- 
relevant remarks  while  testifying  was  not  re- 
versible error,  where  no  objection  thereto  was 
made  until  she  stopped  a  long  tirade,  and  where 
the  irrelevant  testimony  was  stricken  out,  and 
there  was  no  exception  to  the  court's  refusal  to 
withdraw  a  juror, 

5.  Tbial  ^=>146  — Withdbawal  of  Jtjbob — 
Irrelevant  Remabks. 

In  such  case,  where  defendant  admitted  his 
illicit  relations  with  plaintiff's  wife,  but  de- 
nied that  he  was  afflicted  with  a  venereal  dis- 
ease or  communicated  it  to  her,  as  alleged,  the 
trial  judge  did  not  abuse  his  discretion  in  re- 
fusing defendant's  motion  for  the  withdrawal  of 
a  juror  because  of  her  remarks  while  on  the 
stand  that  she  had  seriously  wronged  her  hus- 
band "for  something  [meaning  the  defendant] 
that  is  half  rotten,"  and  "all  I  ask  the  court  is 
to  compel  him  to  remove  the  bandages  from  his 
legs,  and  that  will  show  you  he  is  rotten." 
where,  prior  to  such  remarks,  the  defendant's 
condition  had  been  so  fully  discussed  that  they 
could  have  had  no  prejudicial  effect  upon  the 
jury,  especially  where  his  counsel  had  made  no 
objection  to  the  first  admission  of  evidence  as  to 
his  physical  condition. 

Appeal  from  Common  Pleas,  PhUadelphia 
County. 

Trespass  by  Luther  Joseph  against  Mor- 
ris Naylor  to  recover  damages  for  the  de- 
bauching of  plaintiff's  wife  and  for  the  alien- 
ation  of  her  affections.     Verdict  for  plaln- 


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JOSEPH  V.  ITATIiOB 


847 


till  for  13,000,  and  Judgment  thereon,  and  de- 
fendant appeals.    Affirmed. 

Argued  before  BROWN,  0.  J.,  and  STEW- 
ART, MOSCHZISKQB,  FRAZEB,  and  WAL- 
LING, JJ. 

Henry  J.  Scott,  of  Philadelphia,  for  appel- 
lant John  Reynolds,  of  Philadelphia,  for  ap- 
pellee. 

MOSCHZISKER,  J,  Plaintiff,  Luther  Jo- 
seph, sued  in  trespass  to  recover  damages  for 
debauching  his  wife  and  alienating  her  af- 
fections. He  obtained  a  verdict  for  $3,000, 
apon  which  judgment  was  entered,  and  the 
defendant  has  appealed. 

We  shall  not  go  into  the  nasty  details  of 
the  evidence  further  than  to  outline  the  facts 
essential  to  a  proper  consideration  of  the 
questions  brought  before  us  for  determina- 
tion. Plaintiff  was  married  in  1891,  and  liv- 
ed with  his  .wife,  in  comparative  happiness, 
for  nearly  20  years.  The  latter  met  the  de- 
fendant about  F^ruary,  1911,  and  almost 
Immediately  they  entered  upon  a  course  of 
marital  infidelity.  The  wife  thereupon  be- 
came indifferent  to  her  husband  and  treated 
him  accordingly.  Although  plaintiff's  work 
took  him  away  from  the  city  for  considerable 
periods,  yet  he  always  supported  his  spoude 
by  generous  allowances  from  his  wages,  and 
upon  returning  to  his  home,  from  time  to 
time,  occupied  the  same  room  with  her.  On 
these  occasions,  however,  after  becoming  ac- 
quainted with  the  defendant,  Mrs.  Joseph  fail- 
ed to  show  affectlob  for  her  husband,  and 
persistently  refused  him  the  rights  of  that 
relation.  Finally,,  in  1915,  plaintiff  discover- 
ed that  hts  wife  was  suffering  from  a  loath- 
some and  destructive  venereal  disease,  which 
she  had  contracted  from  the  defendant,  and 
forthwith  left  her,  subsequently  commencing 
the  present  action. 

At  trial  the  defendant  did  not  deny  his  il- 
licit relations  with  plalntifTs  wife,  but  con- 
tented himself  with  a  denial  of  the  allegatiota 
that  he  was  afflicted  with  a  venereal  disease 
and  was  responsible  for  the  unclean  condi- 
tion of  the  latter.  The  several  assignments 
of  error  are  summarized  in  appellant's  state- 
ment of  the  qtiefltlons  Involved  under  three 
beads:  (1)  Since  punitive  damages  were  not 
specially  claimed  and  no  express  malice 
against  the  plaintiff  was  shown,  was  It  prop- 
er to  submit  the  question  of  such  damages  to 
the  Jnry?  (2)  Did  the  court  below  err  In  re- 
fusing to  withdraw  a  Jnror  when  the  wife 
of  the  plaintiff,  as  a  witness  interjected  "ir^ 
relevant,  immaterial  matter  and  objectionable 
remarks")  (3)  Was  like  error  committed 
when  plaintiff's  wife,  "after  a  vituperative 
attack  on  defendant,  fainted  on  the  witness 
stand  and  was  removed  therefrom  by  a  nurse 
and  doctor"? 

[1-3]  As  a  general  rule  of  pleading,  "it  Is 
not  necessary  to  claim  exemplary  damages  by 
name ;  it  being  sufficient  if  the  facts  alleged 
and  the  proofs  he  snch  as  to  warrant  their 


assessment."  8  R.  C.  L.  {  168,  p.  626.  It  is 
the  settled  rule  in  this  state  that  a  husband 
may  recover  punitive  damages  for  the  de- 
bauching of  his  wife,  not  only  by  way  of  com- 
pensation to  the  plaintiff,  but  as  punishment 
of  the  defendant  (Cornelius  v.  Hambay,  150 
Pa.  359,  24  Atl.  515;  Matheis  v.  Mazet.  164 
Pa.  580,  30  Atl.  434) ;  for,  when  a  wrongful 
act  is  done  intentionally,  without  Just  cause 
or  excuse,  malice  is  presumed  (Barr  v.  Moore, 
87  Pa.  385,  30  Am.  Rep.  367).  See,  also,  Wirs- 
ing  V.  Smith,  222  Pa.  8,  16,  70  Aa  906.  The 
fact  that  a  husband  and  .wife  may  not  be 
living  in  perfect  harmony  when  the  latter's 
affections  are  alienated  does  not  affect  the 
right  of  the  former  to  recover  in  an  action 
such  as  the  one  at  bar,  although  the  circum- 
stance may  be  considered  in  mitigation  of 
damages.  Burning  v.  Hastings,  183  Pa.  210, 
38  Atl.  627.  The  authorities  Just  cited  are 
more  than  sufficient  to  dispose  of  appellant's 
first  complaint;  we  may  add,  however,  that 
all  the  issues  properly  Involved  in  this  case 
were  submitted  to  the  Jury  in  a  fair  and  cor- 
rect charge. 

[4]  The  first  assignment  of  error,  covering 
the  matters  set  forth  in  the  second  question 
involved,  might  well  be  dismissed  by  the  mere 
statement  that  defendant  took  no  exception 
to  the  ruling  there  brought  into  question; 
but  it  is  only  fair  to  note  that  no  objection 
was  entered  to  the  "irrelevant,  immaterial 
matter  and  objectionable  remarks"  now  com- 
plained of,  nntil  the  witness  reached  the  end 
of  a  long  tirade,  whereas  the  trial  judge 
states  he  would  have  stopped  the  testimony, 
had  counsel  asked  him  so  to  do,  at  any  ob- 
jectionable point  Moreover,  it  appears  that 
a  ruling  was  in  fact  made,  striking  from  the' 
record  all  the  irrelevant  and  hearsay  evidence 
referred  to  in  the  assigntnent  now  under  con- 
sideration. 

[{]  As  to  the-  complaints  covered  by  the- 
third  question  Involved,  the  only  matter 
therein  which  requires  serious  consideration 
Is  the  further  improper  remark  made  by  the 
plaintiff's  wife,  when  upon  the  stand,  to  the. 
effect  that  she  had  seriously  wronged  her  bus- 
band  "for  something  [meaning  the  defendant] 
that  is  half  rotten,"  adding: 

"All  I  ask  the  court  is  to  compel  him  [de- 
fendant] to  remove  the  bandages  from  his  legs, 
and  that  will  rhow  you  be  U  rotten," 

At  argument  we  were  impressed  that  this 
was  ^uch  a  serious  breach  it  must  have  prov- 
ed, prejudicial  to  the  defendant  and  that  the 
incident  Imperatively  called  for  the  with- 
drawal of  a  juror.  A  careful  reading  of  the 
entire  body  of  the  evidence,  however,  shows 
that  prior  to  the  offensive  utterances  just 
quoted  the  case  was  so  thoroughly  impregnat- 
ed with  the  allegation  that  the  defendant  was 
and  had  for  years  been  a  diseased  man,  whose 
legs  were  sore  with  syphilis,  that  we  do  not 
now  feel  it  at  all  likely  the  remarks  in  ques- 
tion had  any  material  prejudicial  effect  upon 
the  Jury.   The  notra  pf  testimony  show  that 


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848 


101  ATLANTIC  RBPORTJ5B 


(Pa. 


tbia  element  in  the  case— Mr.  Naylor's  al- 
leged physical  rottenness — was  first  Intro- 
duced, ^thont  objection  on  the  part  of  the 
latter,  when  connsel  for  the  plaintiff  proved 
by  Mrs.  Joseph  her  own  diseased  condition 
and  that  this  was  due  to  Intercourse  with  the 
defendant  At  that  time  this  whole  subject 
was  gone  Into  ad  nauseam,  and  the  witness 
testified  that  defendant  had  said  she  was  not 
the  first  woman  who  accused  him  of  giving 
her  syphlUs;  that  he  also  informed  her  of 
the  fact  that  he  had  serious  trouble  with  his 
legs,  due  to  that  disease.  The  trial  had  been 
on  for  some  time,  and  the  plaintiff's  .wife 
made  the  objectionable  remarks  now  before 
us  when  she  was  overwrought  by  a  long,  skill- 
fully conducted  cross-examination,  which 
likewise  may  account  for  her  condition  when 
she  left  the  stand;  but,  however  that  may 
be,  under  the  peculiar  circumstances  at  bar, 
we  are  not  convinced  the  trial  judge  abused 
his  discretion  when  he  refused  to  withdraw  a 
juror  and  continue  the  case. 

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


(267  Pa.  489) 

NAZABBTH   rOTTNDRT   &  MAOH.   CO.   v, 
MABSHAIjL  et  al- 

(Supreme  Court  of   Pennsylvania.     April  16, 
1917.) 

1.  dibmissai,  and  nonsutt  4=381(2)— rule  to 
Taex  off  Nowstjit — Statutk, 

Under  Act  March  11,  1876  (P.  I*  6),  pro. 
Tiding  for  nonsuit  with  leave  to  move  the  court 
in  banc  to  set  the  same  aside,  a  rule  to  take  off 
a  nonsuit  must  be  considered  and  disposed  of 
by  the  court  in  banc,  and  not  by  the  trial  judge 
alone. 

2.  Appeal  and  ESbbob  •=»106  —  Obdebs  Ap- 
pealable—Nonsuit. 

No  appeal  lies  to  the  entry  of  a  nonsuit,  but 
only  to  the  refusal  to  take  it  off. 

8.  Pbincipal  and  Sdrett  «=9S1— Constbtto- 
TION  OF  Bond— Satisfaction. 
Under  a  bond  given  after  the  obligee  had 
sold  to  the  principal  obligor  two  engines  which 
were  in  turn  sold  by  the  obligor  to  two  paper 
companies,  providing  that  if  after  trial  and  after 
the  obligor  nad  used  everv  effort  to  make  them 
satisfactory  to  the  punuiasers  they  were  re- 
jected by  the  purchasers  and  promptly  returned 
to  the  obligee  in  good  condition,  except  for  rea- 
sonable wear,  the  penal  sum  of  $S,000  should 
be  reduced  by  the  sum  lyt  $1,400  on  return  of 
one  engine,  and  $2,000  on  the  return  of  the 
other  eneine,  the  payment  of  the  full  amount  of 
the  purchase  money  or  the  return  of  both  en- 
gines in  good  order  would  satisfy  t^e  bond,  and 
on  the  return  of  one  engine  in  bad  order  the 
obligor  would  be  liable  for  the  expense  of  re- 
storing it  to  as  good  condition  as  when  shipped. 

4.  EVIDINCE  «=>131<-00NDITI0IT  OF  BnOINEt— 

Rblxvanct. 
In  such  action,  testimony  of  a  witness,  who 
was  familiar  with  the  kind  of  engine  and  its 
construction,  as  to  the  condition  of  the  engine 
a  wedc  before  the  trial,  was  admissible,  where 
there  was  other  evidence  that  it  waa  in  the 
same  condition  when  returned. 

Appeal    from    Court    of   Common    Pleas, 
Northampton  County. 


Assumpsit  on  a  bond  by  the  Nazareth  Foun- 
dry &  Machine  (ISompany  against  Frank  J. 
Marshall  and  others.  From  a  final  order  re- 
fusing to  take  off  a  compulsory  nonsuit, 
plaintiff  appeals.  Reversed  with  a  proce- 
dendo. 

Argued  before  MB5STREZAT,  POTTER, 
MOSCHZISKBR,  FRAZER,  and  WAL- 
LING, JJ. 

W.  H.  Kirkpatrl(&,  ot  Baston,  for  appel- 
lant Edw.  J.  Fox,  Jas.  W.  Fox,  and  F.  B. 
McAlee,  all  of  Baston,  for  appellees. 

POTTER,  J.  Thte  was  an  action  of  as- 
sumpsit brought  to  recover  upon  a  bond  giv- 
en by  defendants  to  plaintiff,  dated  July  24, 
1013,  for  the  sum  of  |6,800.  The  bond  con- 
tains a  redtal  that  the  Marshall  Machinery 
&  Supply  Company  is  indebted  to  plaintiff 
In  a  sum  of  about  $1,800  in  addition  to  the 
cost  of  construction  of  two  Marshall  paper- 
making  engines,  and  that  it  is  deemed  advis- 
able by  all  parties  Interested  that  the  for- 
mer company  furnish  a  good  and  sufficient 
bond  to  plaintiff,  conditioned  for  the  prompt 
payment  of  the  purdiase  price  of  the  two 
engines.  The  condition  of  the  bond  is  that 
the  Marshall  Machinery  &  Supply  Company 
should  pay  or  cause  to  be  paid  to  plaintiff 
company  the  sum  of  $1,400  within  three  days 
after  one  engine  should  be  received  from  the 
Cylinder  Paper  C!ompany,  and  also  the  snm 
of  $2,000  within  three  days  after  the  other 
engine  should  be  received  from  the  John 
Lang  Paper  Company.  It  was  furth«  made 
part  of  the  condition  that: 

"If  after  due  trial,  and  after  Mr.  Marshal) 
has  used  every  effort  to  make  the  above-men- 
tioned engines  satisfactory  to  the  purchastaa, 
and  the  said  engines  or  either  of  them  are  re- 
jected by  the  said  purchasers,  and  promptly  re- 
turned to  the  Nazareth  Foundry  &  Machine 
Company  in  as  good  a  condition  as  when  ship- 
ped, reasonable  wear  and  tear  excepted,  that 
then  and  in  any  such  case,  the  penal  sum  pay- 
able under  this  bond  shall  be  reduced  by  the  sum 
of  $1,400  if  the  machine  shipped  to  the  Cylinder 
Paper  Company  ia  returned,  and  $2,000  if  the 
engine  to  be  shipped  to  the  John  Lang  Paper 
Company  ia  returned." 

In  plaintiff's  statemoit  of  claim  it  is  ad- 
mitted that  the  engine  shipped  to  the  Cylin- 
der Paper  Company  had  been  accepted  and 
paid  for  by  the  purchaser,  and  that  the  price, 
$1,400,  had  been  received  by  plaintiff,  but  It 
is  averred  that  the  purchase  price  of  the  oth- 
er engine  had  not  been  paid,  and  that  the 
engine  had  not  been  returned  to  plaintiff  in 
good  condition.  Plaintiff  claimed  to  recover 
on  the  bond  $2,205.97,  with  interest  In  the 
answer  and  counterclaim  of  defendants  it  i» 
averred  that  the  Marshall  Machinery  &  Sup- 
ply Company  had  paid  Its  entire  Indebtedness 
to  plaintiff,  and  that,  In  accordance  with  the 
terms  of  the  bond.  Mr.  Marshall  had  used 
every  effort  to  make  the  engine  which  had 
been  returned  satisfactory  to  the  purchaser., 
but  that  the  same  had  been  rejected  and  re- 


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turned  to  plaintiff  In  as  good  condltlom  as 
when  shipped,  reasonable  wear  and  tear  ex- 
cepted. Upon  the  trial,  after  plalntUTs  tes- 
timony was  c<mcluded,  defoidants'  connsel 
moved  for  Judgment  of  compolsory  nonsuit 
on  the  grotind  dilefly  that  no  proof  had  been 
made  that  the  Marshall  Machinery  &  Supply 
Company  had  erer  received  from  the  John 
Lang  Paper  Company  the  sum  of  $2,000,  the 
price  of  the  machine  shipped  to  that  com- 
pany. The  trial  Judge  granted  the  motion, 
whereupon  plalntlfCs  counsel  moved  for  a 
rule  to  strike  off  the  nonsuit,  which  was  de- 
nied, as  was  a  motion  to  strike  off  the  non- 
suit.   Plaintiff  has  appealed. 

[1, 2]  The  first  and  second  assignments  al- 
lege error  in  the  refusal  of  a  rule,  and  of  a 
motion  to  take  off  the  nonsuit  The  motions 
were  made  immediately  after  the  nonsuit 
was  entered,  and  they  were  at  once  denied 
by  the  trial  Judge.  This  was  not  in  com- 
pliance with  the  statute  which  authorizes  the 
entry  of  compulsory  nonsuits.  Act  March  11, 
1875  (P.  L.  6)  I  1,  provides  that  a  Judg- 
ment of  nonsuit  may  be  entered  "with  leave, 
nevertheless,  to  move  the  court  in  banc  to 
set  aside  such  Judgment  of  nonsuit,"  and  a 
writ  of  error  (now  appeal)  is  given  only  to 
the  refusal  of  the  court  in  banc  to  set  aside 
the  nonsuit.  No  appeal  lies  to  the  entry  of 
the  nonsuit,  but  only  to  the  refusal  to  take 
It  off.  Bausbach  v.  Beiff,  237  Pa.  482,  488,  85 
AtL  762.    In  that  case  it  was  said: 

"The  act  of  1876,  above  referred  to,  provides 
expressly  that  such  rule  [to  take  off  the  nonsuit] 
shall  be  considered  and  disposed  of  by  the 
court  in  banc,  not  by  the  trial  judge  alone.  The 
act  contemplates  consideration  of  tbe  qnestions 
Involved  by  the  court  in  banc.  This  they  did  not 
receive  in  the  present  case." 

Tbe  same  Udng  may  be  said  of  the  case  at 
bar.  The  trial  Judge  himself  refused  the  mo- 
tion to  strike  off  the  nonsuit,  and  the  ques- 
tions involved  did  not  receive  the  considera- 
tion of  the  court  in  banc,  as  is  contemplated 
by  the  act  of  assembly. 

No  opinion  was  filed,  and  we  can  gather 
tbe  reasons,  for  the  entry  of  the  nonsuit 
only  by  reference  to  those  stated  by  counsel 
for  defendants  in  their  motion.  The  prin- 
cipal one  was  that  the  plaintiff  did  not  prove 
that  the  Marshall  Machinery  ft  Snm>ly  Com- 
pany had  received  from  the  John  Lang  Paper 
Company  the  price  of  the  engine,  being  the 
sum  of  $2,000.  To  relieve  the  obligors,  it 
must  appear,  either  that  the  Marshall  Ma- 
chinery ft  Supply  Company  had  paid  to  plain- 
tiff the  respective  sums  of  |1,4U0  and  $2,000 
within  three  days  after  the  receipt  of  those 
sums  from  the  purchasers  of  the  engine,  or 
that,  after  due  trial. and  after  Marshall  had 
used  every  effort  to  make  tbe  engines  satis- 
factory to  the  purchasers,  the  engines  had 
been  promptly  returned  to  plaintiff  in  as 
good  condition  as  when  shipped,  reasonable 
wear  and  tear  ^cepted.  There  was  ample 
evidence  at  tbe  trial  to  show  that  the  engine 
was  not  returned  in  the  condition  required  to 
101  A.— 64 


comply  with  the  terms  of  tbe  bond.  If  this 
was  the  case,  the  defendants  were  not  relieved 
of  their  obligation  upon  the  bond.  The  non- 
snit  was  therefore  improperly  entered,  and 
the  refusal  to  take  It  off  was  error. 

[3]  The  argument  of  counsel  for  appellant 
that  the  bond  should  \)e  construed  as  a  pri- 
mary and  principal  obligation  "to  pay  the 
whole  Indebtedness  of  the  Marshall  Com- 
pany" Is  not  sound.  Tbe  bond  is  merely  one 
for  the  pajrment  of  money,  to  be  discharged 
on  the  performance  of  certain  conditlona 
The  only  question  to  be  determined  is  whether 
those  conditions  have  been  performed  or  not 
We  are  unable  to  find  In  the  bond  any  agree- 
ment on  the  part  of  the  obligors  "to  pay  the 
overdue  account"  Reference  to  that  account 
appears  to  have  been  made  only  to  show  the 
reason  for  requiring  the  full  purchase  price 
of  the  engines  to  be  paid  to  plaintiff.  There 
is  an  express  recital  that  the  bond  is  to  be 
conditioned  "for  the  prompt  payment  of  the 
purchase  price  of  the  two  engines,"  and  an  al- 
ternative condition  that  the  return  of  the 
large  engine  in  good  condition  shall  entitle 
the  defendants  to  a  credit  upon  the  bond  of 
$2,000.  The  amount  named  in  the  bond,  $6,- 
800,  was  clearly  a  penal  sum,  as  there  is  no 
pretense  that  the  real  debt  exceeded  $3,400. 
Had  the  full  amount  of  the  purchase  money 
been  paid,  the  bond  would  have  been  satisfied, 
or  if  both  engines  had  been  returned  in  good 
order,  reasonable  wear  and  tear  excepted,  a 
credit  equal  to  the  amount  of  the  purchase 
money  mnst  have  been  allowed.  Under  the 
evidence  of  plaintiff,  the  engine  Intended  for 
the  John  Lang  Paper  Company  was  returned 
In  a  damaged  condition.  For  whatever 
amount  was  necessary  to  restore  that  engine 
to  as  good  a  condition  as  when  shipped,  rea- 
sonable wear  and  tear  excepted,  the  plaintiff 
was  entitled  to  recover  from  the  defendants 
in  this  action. 

[4]  The  third  assignment  la  to  the  action  of 
tbe  trial  Judge  in  sustadning  an  objection  to 
tbe  offer  of  plaintiff's  counsel  to  show  by  the 
witness  Firth,  who  was  familiar  with  the 
kind  of  engine  in  question  and  .Its  construc- 
tion, that  he  had  examined  the  engine  a  week 
before  the  trial,  and  tbe  condition  in  which 
be  found  It  at  that  time,  the  preceding  wit- 
ness. Fry,  having  testified  that  at  the  time 
of  tbe  trial  the  engine  was  in  Just  the  same 
condition,  with  the  exception  of  rust  as  when 
it  was  returned.  The  testimony  of  this  wit- 
ness was  admissible,  and  it  was  error  to  sus- 
tain the  objection. 

In  the  fourth  assignment  complaint  is  made 
of  the  action  of  the  court  below  In  sustaining 
defendants'  objection  to  the  admission  in 
evidence  of  four  letters  written  by  plaintiff 
to  the  Marshall  Machinery  ft  Supply  Com- 
pany. The  letters  were  offered  for  the  pur- 
pose of  showing  that  plaintiff  bad  refused  to 
accept  the  return  of  the  engine  in  relief  of  de- 
fendants' bond.  This  question  is  unimpor- 
tant, as  both  sides  agree  that,  under  the 
terms  of  the  bond,  tbe  question  of  the  ac- 


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oeptance  of  tlie  engine  by  plalntUT  Is  imma- 
terial to  the  decision  of  the  case. 

The  first,  second,  and  tblnd  assignments  of 
error  are  snstained,  and  the  Judgment  is  re- 
versed with  a  procedendo. 


<267  Pa.  E66) 

HAXE3  T.  ARCADE   REAL  ESTATE   CO. 

(Supreme   Court  of   Pennsylvania.     April   23, 
1917.) 

1.  Appeal  and  Ebbok  «=alO10(l)— Review— 
FiNDiNQs  OF  Fact. 

Pindings  of  fact  of  the  lower  court  support- 
ed by  evidence  will  not  be  interfered  with  by 
the  bupreme  Court  in  the  absence  of  clear  error, 

2.  Pabty  Walls  «=10— Injumctioh— Fisd- 
inos— evidew  ck. 

In  a  BUit  to  compel  an  adjoining  landowner 
to  remove  such  part  of  an  underpinning  wall 
aa  encroached  on  plaintiff's  land  more  than  al- 
lowed by  Act  May  7,  1S55  (P.  L.  i&i),  and  to 
compel  the  closing  of  certain  openings  and  win- 
dows in  the  new  part  of  the  wall,  evidence  Jield 
to  sustain  findings  that  the  underpinning  wall 
was  necessary  to  support  the  party  wall  and 
protect  plaintiff's  building;  that  it  had  been 
constructed  according  to  the  best  practice ;  that 
it  encroached  no  more  than  was  actually  neces- 
sary to  support  the  building  and  the  lateral 
pressure;  and  that  it  was  not  used  above  the 
surface  in  connection  with  a  new  building  con- 
structed entirely  on  defendant's  land. 

a.  Pabty  Walls  <S=8(3)— Latekal  Suppobt. 
An  adjoining  owner  who  made  no  use  of  a 
party  wall  to  support  his  building  and  who  was 
obliged  to  underpin  the  party  wall  by  reason  of 
excavations  on  his  own  land  was  required  to 
furnish  lateral  support  sufficient  to  sustain  the 
surface  in  its  original  condition  and  to  do  the 
excavation  on  hia  own  land  in  a  proper  and 
careful  manner. 

4.  Pabit    Walls    €=98(4)— Brcboachhknt— 
lBjun(7noN. 

In  a  suit  to  compel  an  adjoining  owner  to 
remove  a  part  of  an  underpinning  wall  en- 
croaching on  plaintiff's  land  more  than  allowed 
by  Act  May  7,  1855  (P.  U  464),  where  it  ap- 
peared that  the  work  was  done  openly  and  in 
accordance  with  plans  on  file  in  tiie  bureau  of 
building  inspection,  plaintiff,  who  had  made  no 
comj^lalnt  of  an  encroachment  of  the  under- 
pinning wall  until  14  years  after  the  completion 
of  defendant's  building,  would  not  be  permitted 
to  question  the  necessity  of  the  encroachment, 
where,  at  most,  it  was  only  a  technical  trespass 
not  the  sabject  of  equitable  interference. 
6.  Pabty  Walls  «=32— UNDjEBPiMNiNa  Waix 
—Rights  of  Pabtiss. 

Where  neither  a  party  wall  nor  an  under- 
pinning wall  necessitated  in  the  construction  of 
a  building  was  used  for  its  support,  and  where 
the  entire  party  wall  to  the  bottom  of  the  un- 
derpinning wall  might  be  removed  without  affect- 
ing the  stability  of  the  building,  the  mere  physL 
ou  attachment  between  the  buildings  and  the 
attachment  of  girders  to  the  party  wall  was  not 
sufficient  to  make  the  party  wall  and  the  under- 
pinning wall,  as  a  whole,  a  party  wall,  and 
subject  the  builder  to  the  liabilities  and  restric- 
tions as  to  the  use  of  a  party  wall. 

Appeal  from  Court  of  Common  Pleas,  Pblla- 
delpbia  Ck>unty. 

Bill  for  Injunction  by  William  A.  Hayes, 
surviving  executor  and  trustee  under  the  will 
of  Joseph  Grandon,  deceased,  against  the 
Arcade  Iteal  liSstate  (Company.    From  a  de- 


cree on   final  hearing  dlamlsshig  the  .I>1U. 
plaintia  amteals.    Ailirmed. 

Argued  before  BROWN,  G.  J,  and  STEW- 
ART, M08CHZISKEB,  FRAZER,  and  WAL- 
laNQ,  JJ. 

Alex.  Simpson,  Jr.,  and  Joseph  G.  Magee, 
both  of  Philadelphia,  for  appellant.  John 
Hampton  Barnes,  of  Philadelphia,  for  appel- 
lee. 

FRAZER,  J.  PlaintUTs  biU  was  to  com- 
pel defendant,  an  adjoining  owner,  to  remove 
such  portion  of  an  underpinning  party  wall, 
constructed  by  defendant  and  alleged  to  en- 
croach on  the  land  of  plaintlGT,  to  a  greater 
extent  than  ten  inches  allowed  by  the  Act  of 
May  7, 1855  (P.  L.  464)  and  to  compel  defend- 
ant to  close  certain  openings  and  windows  In 
a  new  portion  of  the  party  wall  constructed 
by  defendant.  The  bUl  was  dismissed,  and 
plaintiff  appealed. 

The  material  facts  of  the  case  are  not  dis- 
puted. The  parties  are  owners  of  adjoining 
lots  on  Market  street,  Philadelphia,  being 
Nos.  1432  and  1434,  resipectively.  On  these 
lots  about  50  years  ago  were  constructed  two 
buildings,  each  3  stories  In  height,  with  a 
party  wall  consisting  of  an  18-luch  stone 
foundation  extending  7  feet  below  the  sur- 
face, and  a  brick  wall  9  Inches  thick,  ex- 
tending from  the  surface  of  the  ground  to  the 
roof. 

[1]  Plaintiff  made  alterations  in  premises 
1432  Market  street  for  the  purpose  of  fitting 
the  property  for  use  as  a  saloon,  and  in  do- 
ing so  constructed  a  lining  wall  on  his  lot 
against  the  foundation  wall  to  afford  addi- 
tional support  to  the  Interior  construction, 
making  the  part  of  the  wall  on  plalntitra 
property  approximately  13  Inches  In  thick- 
ness. In  1901  defendant  removed  the  old 
building  at  No.  1434,  and  began  the  erection 
of  a  13-story  office  stmctdre,  known  as  the 
Commercial  Trust  Butlding.  The  plan  of  the 
building  contemplated  a  construction  resting 
on  its  own  foundations,  without  depending 
for  support  upon  the  party  wall,  which 
defendant  considered  to  be  of  InsufBdent 
strength  to  sustain  the  new  structure.  In 
excavating  for  foundations  defendant  was 
obliged  to  go  considerably  below  the  founda- 
tion of  the  old  party  wall,  and  In  the  course 
of  the  work  was  required  to  provide  for  Its 
support.  For  this  purpose  defendant  shored 
up  the  wall  temporarily,  made  the  excavation 
for  the  foundation,  which  extended  30  feet 
below  the  surface,  and  constructed  on  this 
foundation  Immediately  under  the  party  wall 
a  subfoundatlon,  or  underpinning  wall,  4S 
Inches  thick,  which  extended  18^  inches  on 
plaintiff's  ground,  and  29V&  inches  on  defend- 
ant's property.  Upon  completion  of  the  un- 
derpinning to  within  a  foot  of  the  bottom  of 
the  old  party  wall,  the  two  were  connected 
by   filling  the  remaining  space  with   bricks 


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HATES  V.  ARCADE  REAL  ESTATE  CO. 


851 


until  the  party  wall  rested  on  the  eubfonnda- 
tlon.  The  added  underpinning,  when  com- 
pleted, extended  4  or  6  Inches  further  on 
plalnttfTs  property  than  the  old  wall  as  It 
existed  prevloua  to  that  time.  Baring  pro- 
vided for  the  safety  of  the  party  wall,  de- 
fendant next  proceeded  to  construct  the 
foundation  for  Its  building.  The  work  was 
begun  with  concrete  foundations,  known  as 
"footings,"  0  feet  long  and  laid  perpendicu- 
lar to  the  i)arty  wall  and  extending  into  the 
underpinning  wall  in  recesses  cut  for  that 
purpose  until  they  practically  reached  the 
party  line.  After  the  footings  were  In  place 
the  spaces  In  the  underpinning  wall  were 
closed  with  cement  Upon  the  footings  are 
placed  columns  supporting  a  cantilever  steel 
construction  on  whidi  rest  the  upright  steel 
columns  of  the  boUding,  running  to  the  top 
and  supporting  the  girders  at  each  floor,  thus 
creating  a  foi-m  of  construction  used  for  the 
purpose  of  distributing  weight  over  a  large 
area  of  surface.  The  end  of  the  construction 
extended  Into  the  4-foot  wall  to  within  about 
6  Inches  of  the  property  line.  The  beams 
when  in  place  were  Inbedded  in  concrete,  thus 
making  the  foundation  a  solid  mass  of  steel 
and  concrete  resting  -on  footings  entirely 
within  the  line  of  defendant's  property.  Inde- 
pendent of  the  party  wall,  and  connected 
therewith  only  because  of  the  concrete  fllllng 
between  the  two  walls.  On  this  foundation 
the  steel  columns  of  the  building  rested. 
In  putting  the  cross-girders  in  place  a  cut 
Into  the  party  wall  of  about  4  inches  became 
necessary,  and  when  in  place  the  beams  ex- 
tended into  the  wall  a  distance  of  1>^  inches, 
the  remaining  space  being  filled  with  con- 
crete. Following  the  completion  of  the  steel 
structure,  a  lining  wall,  supported  by  the 
steel  frame,  was  constructed  against  the 
party  wall  and  extended  upward,  receding 
outward  at  the  top  of  the  underpinning  wall, 
and  following  the  line  of  the  old  wall  until 
the  top  was  reached,  at  which  point  it  was 
built  over  for  a  distance  approaching  4^ 
Inches  to  the  party  line.  From  this  point  the 
wall  known  as  a  "curtain  wall"  extends  up- 
ward to  the  roof  of  defendant's  building, 
within  the  line  of  defendant's  property,  and 
is  Independent  of  the  party  wall,  though  in 
contact  with  it,  by  reason  of  the  use  of  con- 
crete filling  in  the  cracks  at  the  Joints.  The 
removal  of  the  old  wall  would  not  in  the 
slightest  degree  affect  the  stability  of  the 
new. 

[2,3]  The  court  below  found  the  under- 
pinning wall  necessary  to  support  the  party 
wall  and  protect  plaintiff's  building;  that 
the  work  was  done  by  competent  contrac- 
tors in  accordance  with  the  best  practice 
and  usage  in  the  business ;  that  it  oicroach- 
ed  on  plaintiff's  premises  no  further  than 
actually  necessary  to  support  the  building 
and  lateral  pressure  of  th«  ground;  and, 
further,  that  no  use  was  made  by  defendant 
of  either  It  or  the  party  wall  above  the  sur^ 


face  In  connection  with  Its  building,  which 
was  constructed  independently  of  such  wall, 
and  rested  entirely  on  its  own  foundation, 
laid  on  defendant's  ground.  The  court  also 
reached  the  conclusion  that  the  channeling  of 
the  party  wall  for  the  purpose  of  setting  the 
girders,  the  contact  of  the  curtain  wall  of  de- 
fendant's building  with  the  party  wall,  the 
extension  of  the  curtain  waU  over  the  party 
wall  at  the  top  of  the  latter,  and  the  cement- 
ing of  the  cracks  to  make  the  party  wall 
weathertlght,  without  using  it  as  support  for 
defendant's  wall,  was  not  such  use  of  the 
party  wall  as  entitled  plaintiff  to  have  his 
bill  sustained.  So  fftr  as  the  findings  of  fact 
are  concerned,  they  are  fully  supported  by 
the  evidence,  and  present  no  cause  for  inter- 
ference by  this  court  Anthracite  Lumber 
Co.  V.  Lucas,  249  Pa.  517,  95  Atl.  80;  Law 
v.  First  Mat  Bk.  of  Pittsburgh,  247  Pa.  493, 
08  AtL  635 ;  Duffey  v.  Jennings,  247  Pa.  888, 
93  Atl.  508;  Mt  Oliver  Boro.  v.  Goldbach, 
244  Pa.  56,  90  Atl.  435.  There  remains  to  be 
considered  only  the  correctness  of  the  legal 
conclusion,  based  on  the  court's  findings. 

As  to  the  construction  of  the  underpinning 
wall,  the  case  of  Sharpies  v.  Boldt  218  Pa. 
372,  67  Atl.  652,  sustains  the  conclusion  of 
the  trial  Judge.  Since  defendant  has  made 
no  use  of  the  wall  or  foundation  to  support 
the  building,  and  as  the  necessity  for  the 
underpinning  arose  by  reason  of  excavations 
on  defendant's  land,  the  duty  of  defendant 
Involved  lateral  support;  consequently  the 
case  does  not  fall  within  the  provisions  of 
the  statutes  relating  to  the  construction  of 
party  walls.  Defendant's  duty  to  provide 
lateral  support  was  merely  to  sustain  the 
surface  in  its  original  condition,  and  exca- 
vate on  its  land  in  a  proper  and  careful 
manner  and  without  negligence.  The  prac- 
tical ditUcnltles  in  the  way  of  a  determina- 
tion of  the  precise  extent  of  this  resi)onsibll- 
Ity,  and  whether  the  duty  has  been  performed 
In  a  given  case,  make  necessary  and  advis- 
able. In  actual  practice,  for  the  abutting  own- 
er in  excavating  to  take  the  precautions  nec- 
essary to  assure  absolute  protection  to  the 
adjoining  building  by  underpinning  to  the 
depth  of  the  new  excavations.  In  addition, 
the  municipality,  under  its  police  power  to 
safeguard  the  public,  usually  requires  such 
action  to  be  taken.  It  was  in  the  discharge 
of  this  duty  with  reference  to  lateral  support 
and  In  compliance  with  the  requirements  of 
the  bureau  of  building  inspection,  that  this 
underpinning  wall  was  constructed,  and  this 
brings  the  situation  directiy  within  Sharpless 
V.  Boldt,  supra,  where  it  was  said  (218  Pa. 
p.  879,  67  Ati.  654): 

"If  plaintiffs  had  built  first  in  such  way  as 
to  require  the  additional  thickness  of  wall, 
tbe^  must  have  pat  all  but  ten  inches  of  it  on 
their  own  land.  But  the  additional  thickness  in 
this  case  was  altogether  for  plaintiff's  benefit, 
appellant  not  using  the  wall  at  oU,  and  having 
no  necessity  for  such  thickness.  _  The  building 
inspector  in  ordering  such  additional  thickness 
of  wall  as  he  deemed  proper  for  public  safety 


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did  not  specify  on  which  land  it  should  be  lo- 
cated, and  the  appellant  assumed  that  it  was 
to  be  on  plaintiffs'.  As  it  was  for  plaintiffs' 
benefit,  and  appellant  could  not  be  compelled 
to  put  it  on  hia  own  land,  he  was  entitled  to  as- 
sume that  it  was  to  be  on  plaintiffs'." 

[4]  The  trial  Judge  further  found  the  work 
vr&a  done  openly  and  in  accordance  with 
plans  on  file  in  the  bureau  of  building  in- 
spection, and  that  no  complaint  was  made  by 
plaintiff  of  the  encroachment  until  14  years 
after  the  completion  of  defendant's  building. 
Under  the  drcumatances,  plaintiff  might  read- 
ily have  discoyered  the  manner  of  construe- 
tioQ  at  the  time  the  .work  was  being  done, 
and  should  not  be  permitted  at  this  late  date 
to  question  the  necessity  of  the  encroachment, 
which,  at  most,  is  only  a  technical  trespass, 
not  the  subject  of  equitable  Interference,  and 
not  even  entitling  plaintiff  to  nominal  dam- 
ages.   Sbarpless  v.  Boldt,  supra. 

[I]  The  remaining  question  Is  whether  the 
fact  of  the  absence  of  an  actual  line  of  sep- 
aration between  the  underpinning  and  the 
party  wall  and  defendant's  wall,  though  the 
latter  was  self-supporting  and  Independent 
of  the  continued  existence  of  the  party  wall. 
Is  sufficient  to  fasten  upon  the  whole  the  char- 
acter of  a  party  wall  and  subject  defendant 
to  liabilities  and  restrictions  goveming  the 
use  of  such  wall.  The  cases  relied  upon  by 
plaintiff  to  establish  the  affirmative  of  this 
proposition  have  been  examined,  and  do  not 
go  to  that  extent,  as  the  following  discussion 
will  show: 

Milne's  Appeal,  81  Pa.  54,  merely  decided 
that  a  landowner  .who  starts  the  foundation 
as  a  party  wall  upon  the  property  line,  and 
uses  it  as  a  support  for  bis  wall,  cannot  es- 
cape the  burden  incident  to  the  use  of  such 
wall  by  constructing  the  upper  part  entirely 
within  the  line  of  his  property.  There  it 
was  not  denied  that  the  party  wall  founda- 
tion was  used  for  the  support  of  the  defend- 
ant's Tiew  wall,  and  the  lower  court  said,  in 
an  opinion  affirmed  on  appeal  (81  Pa.  p.  56): 

"The  character  of  the  wall  must  be  determin- 
ed in  part  from  its  foundation.  If  the  builder 
starts  the  latter  upon  the  line,  and  thus  takes 
the  land  of  the  adjoining  owner,  be  must  carry 
it  up  strictly  as  a  part;  wall,  or  at  least  in 
such  manner  as  to  give  the  adjoining  owner  aU 
the  benefits  of  such  a  wall.  Otherwise  the  land 
of  the  latter  would  be  taken  without  any  cor- 
responding benefit" 

In  Western  National  Bank's  Ai^eal,  102 
Pa.  171,  a  party  wall  had  been  constructed 
and  used  for  many  years.  Changes  were 
made  in  both  buildings.  The  owner  of  one 
built  an  additional  lining  .wall,  which  was 
bolted  to  the  old  wall,  for  the  purpose  of  sus- 
taining the  lateral  pressure  from  the  ad- 
joining building.  Subsequently  the  owner  of 
the  latter  building  removed  the  lining  wall 
and  erected  a  new  and  higher  one,  also  con- 
structing an  additional  lining  wall  against 
the  old,  until  it  reached  the  top  of  the  latter, 
over  which  it  extended,  treating  it  as  a  par- 


ty waU.  A  bill  was  filed  by  the  adjoining 
owner  to  restrain  such  use  of  the  structure, 
alleging  the  wall  was  not  originally  con- 
structed equally  on  the  lots  of  both  parties. 
The  court  dismissed  the  bill,  stating  (102  Pa. 
p.  182): 

"There  is  no  evidence  to  repel  the  natural  in- 
ference from  the  acts  of  the  parties  that  they 
intended  it  for  a  party  walL  It  has  been  so 
used  ever  since." 

And  it  was  held  that  the  mistake  as  to  the 
location  of  the  line  did  not  change  the  result. 

In  Pennsylvania  Co.  for  Ins.  on  Lives  and 
Granting  Annuities  v.  Odd  Fellows,  50  Pa. 
Super.  Gt  255,  the  wall  in  question  .was  con- 
ceded to  be  a  party  wall,  and  the  only  ques- 
tion was,  as  here,  whether  defendants  made 
use  of  It  In  the  erection  of  their  building, 
and  the  court  fouud  the  facts  sufficient  to 
warrant  a  finding  of  such  Use. 

In  the  present  case  the  evidence  amply  sus- 
tains the  conclusion  of  the  trial  Judge  that 
defendant  made  no  use  of  the  party  wall,  or 
the  foundation  thereunder,  either  for  the 
purpose  of  support  or  for  the  purpose  of 
protection.  The  testimony  shows  the  en- 
tire porty  wall,  from  the  roof  of  plaintiff's 
building  to  the  bottom  of  the  underpinning  of 
the  foundation  wall, 'can  be  removed  at  any 
time  without  in  the  slightest  manner  affect- 
ing the  stability  of  the  Commercial  Trust 
Building.  A  physical  attachment  between 
the  buildings,  due  to  the  filling  of  the  space 
between  the  party  wall  and  plaintUTs  new 
.wall  with  cement  and  to  the  fact  that  one 
girder  appears  to  have  protruded  nearly  two 
inches  Into  the  party  wall,  is  conceded.  If, 
however,  mere  physical  contact  alone  were 
made  the  criterion  for  determining  the  ex- 
istence of  a  party  wall,  two  entirely  distinct 
and  separate  brick  walls  could  not  be  con- 
structed adjoining  each  other  on  the  proper- 
ty line  without  combining  the  two  as  a  party 
wall,  unless  a  clear  unused  vacant  space  la 
permitted  to  remain  between  them,  as  other- 
wise the  mortar  used  in  laying  the  bricks 
must  necessarily  adhere  to  and  to  some  ex- 
tait  attach  the  two  walls  together.  While 
the  grillage  .work  of  the  foundations  of  de- 
fendant's building  was  recessed  into  the  four- 
foot  underpinning  wall,  and  upon  completion 
of  the  work  the  empty  spaces  filled  with  con- 
crete, making  the  whole  a  solid  mass  when 
hardened,  the  latter  wall  was  not  necessary 
to  or  a  part  of  the  support  of  defendant's 
building.  Its  presence  was  due  entirely  to 
the  necessity  for  support  of  plaintifTs  build- 
ing. As  the  wall  extended  thirty  inches  on 
defendant's  lot.  it  would,  but  for  this,  have 
had  the  use  of  the  land,  and  the  only  alterna- 
tive would  have  been  to  build  the  excess 
width  solely  on  plaintifTs  land,  as  might  prc^ 
erly  have  been  done.  Sharpless  t.  Boldt,  su- 
pra. 

Decree  affirmed,  and  appeal  dismissed  at 
appellant's  costs. 


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CAVENT  V.  OURTIS 


853 


(267  Pa.  B75) 

CAVENT  T,  CTIRTIS  et  aL 

(Supreme  Court  of  PennsylTania.    April  23, 
1917.) 

1.  Tbnanct  in  Comuor  «s>39  — Riohts  or 

COTENANT— AOBEKKENT  MB  TO  UB*  OF  PBOP- 
■BTT. 

One  tenant  In  common  is  withont  authority 
to  bind  his  cotenanta  by  an  agreement  concern- 
ing the  use  or  control  or  affecting  the  title  of 
the  joint  property. 

2.  Evidence  «=>44i(ef)  —  Parol  Evidbnot  — 
Wbitten  Contbaot— Fbatjd  ob  Mistake. 

A  written  contract  of  agency  for  the  sale 
of  land  cannot  be  varied  by  an  agent's  parol 
agreement,  where  there  is  no  allegation  that 
anything  was  omitted  therefrom  by  iraud,  acci- 
dent, or  mistake,  or  that  such  jiarol  matter  was 
the  inducement  for  the  execution  of  a  contract 
to  purchase. 

5.  Eqoity  ®=3326— Plxadino  ard  Pboov. 

Plaintiff  in  equity  does  not  recover  on  proof* 
alone,  but  on  bis  pleadings  and  proof,  and  must 
aver  all  matters  necessary  to  his  recovery,  and 
Implied  allegations  or  proof  of  matters  not  al- 
leged are  no  basis  for  equitable  relief. 

4.   VKRDOB     and     PT7BCHABEB     ®=»83— MEBGEB 

07  Pbiob  AsBEEifENTS— Independent  Covk- 

WANTB. 

The  general  rule  that  preliminary  agree- 
ments relating  to  the  sale  of  land  become  merged 
in  the  deed  does  not  apply  to  independent  cove- 
nants or  provisions  in  an  agreement  of  sale  not 
intended  by  the  parties  to  be  incorporated  in 
the  deed,  in  whicn  case  a  delivery  of  the  deed 
is  a  part  performance  of  the  contract,  which  re- 
mains binding  as  to  its  further  provisions. 

6.  Injunction  «=9ll4fl)— Pabtiks. 

A  bill  to  restrain  defendants  from  conveying 
land  to  &  third  person  without  incorporating  in 
the  conveyance  certain  restrictions  as  to  use 
of  the  property  on  the  ground  that  plaintiff  had 
purchased  property  from  defendants  subject  to 
certain  restrictions,  and  that  at  the  time  of  the 
conveyance  it  was  agreed  between  himself  and 
defendants'  agent  that  the  adjoining  property 
should  be  sold  subject  to  the  same  restricaons, 
was  defective  for  want  of  parties,  where  such 
third  person  was  not  made  a  pari?  to  the  bill. 
6w  Cocbts  «=>480(2)— Injunction— Jcbisdio- 
TioN  of  ComioN  Pix&s  Coubt. 

The  common  pleas  court  sitting  in  equity  has 
DO  power  to  restrain  a  conveyance  of  realty  in 
which  minors  are  interested,  where  the  sale  has 
been  approved  by  the  orphans'  court  under  Acts 
March  29,  1832  (P.  U  190).  and  Act  June  16, 
1836  (P.  L.  682),  and  where  the  injunction  would 
modify  the  decree  of  the  orphans'  court. 

Appeal  from  Court  of  Common  Fleas, 
Montgomery  County. 

Bill  In  equity  for  an  injunction  by  William 
Bl  Caveny  against  H.  Agnes  Curtis  and 
others.  From  a  decree  dismissing  the  bill, 
plaintiff  appeals.    Affirmed. 

Argued  before  BROWN.  C.  J.,  and  MES- 
TREZAT,  POTTEOt^  FRAZER,  and  WAL- 
I/IN6,  JJ. 

Nicholas  H.  Lerzelere,  Charles  Townley 
Liarzelere,  and  FrankUn  I*  Wright,  all  of 
Philadelphia,  for  appellant.  Williams  H. 
Peace  and  William  Drayton,  both  of  Phil- 
adelphia, and  Montgomery  Evans,  of  Norrls- 
town,  for  api)ellee8. 

FRAZER,  J.  Plaintiff  appeals  from  a  de- 
cree of  the  conrt  of  common  pleas  of  Mont- 


gomery county,  dismissing  a  bill  in  equity 
brought  to  restrain  a  conveyance  of  realty 
made  without  inserting  in  the  deed  certain 
restrictions  forbidding  the  use  of  the  prop- 
erty for  offensive  purposes. 

Defendants  were  tenants  in  common  of  a 
tract  of  land  containing  about  S2  acres,  and, 
desiring  to  sell  the  same,  written  authority 
was  given  to  a  real  estate  dealer,  Maurice  3. 
Hoover,  to  dispose  of  the  property;  the  agree- 
ment stipulating  the  minimum  price  for 
which  various  parts  of  the  land  might  be 
sold,  and  also  containing  the  following  pro- 
vlsionfi-: 

"All  land  on  the  Mill  Road  to  have  rcstric- 
tions  as  to  cost  of  buildings  and  position  of 
houses  with  reference  to  the  road  with  the  ad- 
joining properties.  All  lands  to  be  sold  with 
restrictions  as  to  offensive  occupations.  The 
sale  of  the  minors'  interest  to  be  approved  by 
the  orphans'  court." 

The  Interest  of  the  minors  was  represent- 
ed by  the  Montgomery  Trust  Company,  one 
of  the  defendants,  their  duly  appointed  guard- 
ian, which  company,  with  the  other  parties 
In  Interest,  signed  the  agency  agreement  with 
Hoover.  On  August  29,  1911,  Hoover  entered 
into  an  agreement  of  sale  with  plaintiff,  by 
which  he  agreed  to  sell  to  the  latter  a  part 
of  the  tract  consisting  of  three  acres — 
"subject  to  the  following  restrictions:  That  at 
no  tuie  hereafter  forever  shall  said  premises, 
or  any  part  thereof,  be  used  or  occupied  for  the 
manufacture,  brewing,  distilling  or  sale  of  spir- 
ituous or  maJt  liquors,  nor  shall  said  premises  or 
any  part  thereof  or  any  building  erected  there- 
on at  any  time  hereafter  be  used  or  occupied 
as  a  tavern,  drinking  saloon,  bone  boiling  es- 
tablishment, tannery,  slaughterhouse,  glue,  soap, 
candle,  starch  or  gunpowder  manufactory,  or 
other  offensive  or  dangerous  purposes;  and 
that  at  no  time  hereafter  forever  shall  more 
than  one  dwelling  be  erected  on  said  premises, 
and  that  the  cost  of  said  dwelling  shall  not  be 
less  than  five  thousand  dollars;  also  that  no 
dwelling  shall  be  erected  nearer  than  forty 
feet  to  the  line  of  Waverly  Road  and  further 
that  any  stable  or  garage  that  may  hereafter  be 
erected  shall  be  built  on  the  rear  of  said  lot  and 
not  nearer  than  five  feet  to  any  i»arty  line." 

The  agreement  also  contained  this  clause: 
"The  sale  is  made  subject  to  the  approval  of 
the  orphans'  court" 

Plaintiff  testified  that  at  the  time  the 
agreement  of  sale  was  made  there  was  ex- 
hibited to  him  the  agency  agreement,  and  a 
typewritten  paper  setting  out  the  restrictions 
he  was  told  by  Hoover  would  be  incorporated 
in  the  deeds  for  all  other  lands  In  the  tract, 
and  that  these  restrictions  were  practically 
the  same  as  those  contained  in  the  agree- 
ment of  sale.  A  deed  to  plaintiff,  restricting 
the  use  of  the  property  as  above  indicated, 
was  prepared,  and  the  sale  duly  approved  by 
the  orphans'  court.  At  the  time  of  the  set- 
tlement, November  28, 1911,  plaintiff  made  in- 
quiry concerning  the  restrictions  intended  to 
be  incorporated  in  deeds  for  other  properties 
sold  out  of  the  tract,  whereupon  counsel  for 
defendant  dictated  the  following  paper: 


sFor  other  euM  m«  nm«  topio  and  KEX-NTJIIBBR  la  all  K*r-Namb«red  DlgebU  and  Indexes 


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101  ATLANTIC  REPORTEB 


(Pa. 


'^t  la  hereby  tfreti  and  understood  that  the 
landa  now  belonging  to  H.  Agnea  Curtis  and  D. 
Foster  Hewett  and  the  Montgomery  Trust  Com- 
pany, guardian,  which  adjoin  the  land  conveyed 
to  William  E.  Cavcny  by  deed  dated  November 
6,  lAll,  on  the  northeast,  southwest  and  north- 
west, shall  b«  sold  subject  to  the  restrictions  as 
they  appear  of  record,  in  said  deed,  which  is 
now  lodged  for  record  in  Norristown. 

This  paper  was  signed  by  H.  Agnes  Curtis 
and  W.  Drayton,  "Attorney  for  Montgomery 
Trust  Company,  Quardlan."  D.  Foster 
Hewett,  the  other  defendant,  was  not  present 
at  the  time,  and  did  not  sign  the  agreement, 
nor  was  It  signed  by  the  husband  of  H.  Agnes 
Curtis,  nor  by  the  guardian  of  the  minor  de- 
fendants', except  through  its  attorney,  Mr. 
Drayton.  Subsequently,  on  December  9, 1912, 
Hoover  entered  Into  an  agreement  for  sale 
of  7  acres  of  the  tract  to  Oeorge  H.  Lori- 
mer,  "dear  of  incumbrance  and  easements, 
•  •  •  subject  to  the  approval  of  the  or- 
phans' court."  Upon  the  court's  approval  of 
the  sale,  plaintifl!  filed  the  present  bill  to  re- 
strain the  carrying  out  of  the  contract,  al- 
leging a  violation  of  the  agreement  made 
with  plaintiff  concerning  the  imposing  of 
restrictions  on  the  entire  tract.  Demurrers 
to  the  bill  were  overruled,  answers  filed,  and, 
after  hearing,  a  decree  nisi  was  entered,  re- 
straining the  conveyance  to  Lorimer  without 
inserting  restrictions  against  offensive  occu- 
pations, it  appearing  that  the  tract  sold  was 
not  so  situated  as  to  be  within  the  clause  pro- 
hibiting the  erection  of  buildings  costing  less 
than  $5,000.  Subsequently  exceptions  filed  to 
the  decree  were  sustained  and  the  bill  dis- 
missed. 

Defendants  denied  the  existence  of  a  type- 
written paper  showing  the  restrictions  to 
be  placed  on  other  properties,  which  paper 
plaintiff  testified  bad  been  exhibited  to  him 
at  the  time  of  executing  bis  agreement  to 
purchase  a  portion  of  the  tract.  The  court, 
however,  found  the  transaction  to  be  as  de- 
scribed by  plaintiff,  and  that  plaintiff  at 
that  time  was  shown  either  the  original  or 
a  copy  of  a  previous  deed  for  part  of  the  same 
tract  to  Charles  Sinkler,  which,  with  cer- 
tain exceptions  mentioned  by  the  court,  con- 
tained the  restrictions  subsequently  Inserted 
in  plaintiff's  deed.  The  court  also  found 
that  defendants  adopted  no  general  plan  or 
building  scheme  for  tie  Improvement  of  the 
tract  from  which  an  intent  to  impose  simi- 
lar restrictions  upon  all  parts  conveyed 
might  be  inferred;  hence  the  case  must  be 
considered  solely  from  the  standpoint  of  the 
oral  and  written  agreements  between  the 
parties. 

[1]  We  deem  unnecessary  a  consideration 
of  the  question  whether  or  not  the  act  of 
the  attorney  for  the  guardian  In  signing  the 
agreement  of  November  28,  1911,  was  with- 
in the  scope  of  his  authority  or  was  ratified 
by  the  guardian,  or  whether  Mrs.  Curtis  bad 
power  to  create  a  restriction  upon  her  prop- 
erty without  the  consent  of  her  husbaad. 


because  one  of  the  tenants  in  common  did 
not  sign  the  agreement  or  authorize  it  to 
be  signed  for  him,  and  therefore,  so  far  as 
the  right  to  ^edflc  performance  of  the  con- 
tract is  concerned,  the  bill  was  properly  dis- 
missed. One  tenant  in  common  is  without 
authority  to  bind  his  cotenants  by  an  agree- 
ment concerning  the  use  or  control,  or  affect- 
ing tbe  title,  of  the  Joint  property.  McKln- 
ley  V.  Peters,  111  Pa.  283,  3  AtL  27.  "Under 
ordinary  circumstances  neither  tenant  in 
common  can  bind  the  estate  or  person  of  the 
other  by  any  act  in  relation  to  tbe  common 
property,  not  previously  authorized  or  sub- 
sequently ratified,  for  cotenants  do  not  sus- 
tain the  relation  of  principal  and  agent  to 
eacb  other,  nor  are  tbey  partners.  •  *  • 
A  contract  by  one  teiytnt  In  common  in  rela- 
tion to  the  whole  estate  being  voidable  at 
tbe  election  of  his  cotenants  not  joining  in 
said  contract"  38  Cyc.  101,  104.  This  prin- 
ciple is  sustained  by  tbe  citation  of  a  large 
number  of  cases  In  various  Jurisdictions. 

[2, 3]  Another  question  for  determination 
la  the  effect  of  the  parol  agreement  as  to  re- 
strictions on  other  parts  of  the  property, 
which  the  court  found  was  made  by  Hoover, 
the  agent,  viewed  In  the  light  of  the  written 
authority  of  the  latter,  providing  for  "all 
lands  to  be  sold  with  restrictions  as  to  offen- 
sive occupations."  While  this  left  the  exact 
nature  of  the  restrictions  an  open  question, 
and  apparently  within  the  discretion  of  the 
agent,  there  can  be  no  doubt  the  requirement 
itself  Is  mandatory,  and  the  verbal  agree- 
ment by  the  agent  to  put  restrictions  in  all 
other  deeds  was  merely  his  act  in  following 
out  the  provisions  of  his  written  authority 
to  sell.  As  was  pointed  out  by  the  court  be- 
low, the  bill  does  not  aver  the  parol  agree- 
ment was  omitted  from  tbe  writing  by  fraud. 
accident,  or  mistake,  or  that  It  was  tbe 
Inducement  for  the  execution  of  the  contract 
of  purchase  by  plaintiff.  A  plaintiff  in  equity 
does  not  recover  on  proofs  alone,  but  on  his 
pleadings  and  proofs.  He  must  aver  In  bis 
bill  all  matters  essential  to  entitle  him  to 
recover,  and  neither  Implied  allegations  nor 
proof  of  matters  not  alleged  can  be  made  die 
basis  for  equitable  relief.  Thompson's  Ap- 
peal, 126  Pa.  367,  17  AU.  643 ;  Luther  v. 
Luther,  216  Pa.  1,  64  AU.  868;  Frey  v.  Stipp, 
224  Pa.  390,  73  Atl.  460. 

[4]  The  general  rule  is  that  preliminary 
agreements  and  understandings  relating  to 
the  sale  of  land  become  merged  in  the  deed. 
This  rule,  however,  does  not  apply  to  inde- 
pendent covenants  or  provisions  in  an  agree- 
ment of  sale  not  Intended  by  tbe  parties 
to  be  incorporated  in  the  deed.  In  such 
case  the  delivery  of  the  conveyance  is  mere- 
ly a  part  performance  of  the  contraft,  which 
remains  binding  as  to  Its  further  provisions. 
Selden  v.  Williams,  9  Watts,  9:  Walker  v. 
France,  112  Pa.  203,  6  Atl.  208;  Close  v. 
ZeU,  141  Pa.  390,  21  AtL  770.  23  Am.  St. 
Rep.  296.  The  present  is  an  illustration  of 
this  exception  to  the  general  rule.     There 


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HAMMOND  ▼.  HAMMOND 


856 


was  apparently  no  InteDtlon  that  the  prori- 
alon  as  to  the  prohibition  in  deeds  for  oth«r 
parts  of  the  same  tract  should  be  Inserted 
in  the  deed  to  plaintiff.  His  conveyance  la 
-complete  as  it  stands,  and  there  is  no  ques- 
tion of  altering  its  provisions  by  the  inser- 
tion of  a  clause  omitted  by  fraud,  accident, 
or  mistake.  The  mistake,  if  any,  was  in 
falling  to  Insert  the  provision  In  the  agree- 
ment of  sale.  No  averment  to  that  effect 
Is  found  in  the  bill,  however.  Neither  is 
there  an  averment  to  the  effect  that  the 
promise  formed  the  inducement  for  the  ex- 
ecution of  the  agreement  of  sale.  In  fact, 
that  agreement  is  not  mentioned.  That  re- 
strictions were  to  be  Inserted  in  all  deeds 
is  conclusively  shown  in  the  written  au- 
thority of  the  agent,  and  that  the  parol 
promise  was  made  to  Insert  in  all  deeds  pro- 
hibitions similar  to  those  in  plaintiff's  deed 
Is  found  by  the  court  below  and  supported 
l^  the  evidence.  It  is  equally  clear,  how- 
ever, that  plaintifTs  bill  contains  no  aver- 
ments entitling  him  to  the  relief  asked. 

[6]  The  bill  is  also  defective  for  want  of 
necessary  parties.  It  asks  the  court  to  re- 
strain defendants  from  making  conveyance 
to  Lorlmer  without  including  therein  the 
clause  forbidding  the  use  of  the  property 
for  the  purposes  specified.  Lorlmer  would 
be  directly  affected  by  such  decree,  and  is 
entitled  to  be  heard;  consequently  be  is  a 
necessary  party  to  the  bill.  Monessen  Boro. 
V.  Monessen  Water  Co.,  243  Fa.  S3,  89  Atl. 
829. 

[()  Assuming  the  defects  mentioned  above 
were  corrected  by  amendment,  a  further 
question  remains,  involving  the  right  of  a 
court  of  equity  to  enter  a  decree  which  in 
effect  modifies  the  decree  of  the  orphans' 
court.  Two  of  the  co-owners  of  the  land  are 
minors,  and  their  interests  are  represented 
by  a  guardian,  a  party  defendant.  The 
acts  of  the  guardian  with  respect  to  the 
property  of  the  minors  are  necessarily  un- 
der the  sni)ervi8ion  of  the  orphans'  court. 
Furthermore,  the  agreement  to  convey  In 
each  case  stipulated  the  sale  was  made  sub- 
ject to  the  approval  of  the  orphans'  court, 
which  was  duly  obtained.  Upon  application 
for  leave  to  sell  to  plaintiff,  that  court  was 
without  knowledge  of  the  additional  agree- 
ment to  impose  restrictions  on  the  remain- 
ing land,  and,  so  far  as  is  known,  was  not 
asked  to  pass  on  the  question  of  the  advlsa- 
ttlllty  of  the  guardian  entering  Into  such 
agreement.  Should  a  decree  be  entered  in 
this  proceeding  restraining  the  sale  to  Lorl- 
mer without  incorporating  the  restrictions 
as  to  the  use  of  the  property,  the  effect  will 
be  to  modify  the  decree  of  the  orphans' 
court  approving  the  sale,  and  thus  permit 
the  action  of  that  court  to  be  attacked  in  a 
collateral  proceeding. 

Jurisdiction  of  guardians  and  their  ac- 
counts was  given  to  the  orphans'  court  by 


the  Acts  of  March  29.  1832  (P.  L.  190),  and 
June  18,  1836  (P.  L.  682),  and  In  reco^tion 
of  this  Jurisdiction  the  parties  expressly 
stipulated  that  each  sale  was  made  condi- 
tional upon  the  approval  of  that  court.  lo 
the  exercise  of  its  discretion,  that  court  was 
entitled  to  have  before  it  all  facts  relating 
to  each  sale  for  which  approval  was  asked, 
having  either  a  bearing  or  Influence  in  the 
dl^osltlon  of  the  matter.  The  Jurisdiction 
of  that  court,  by  statute  and  by  act  of  the 
parties,  became  exclusive  in  this  controversy 
(Johnstone  v.  Fritz,  159  Pa.  378,  28  Ati.  148), 
and  an  application  which  tends  to  affect  in 
any  manner  its  decree  heretofore  entered 
must  be  made  direct  to  it. 

The  decree  of  the  court  below  in  dismiss- 
ing the  bill  is  afilrmed,  without  prejudice, 
however,  to  the  right  of  plaintiff  to  aw)ly 
to  the  orphans'  court  for  amendment  of  its 
decree  in  conformity  with  the  agreement  and 
Intention  of  the  parties,  if  it  appears  the 
sale  to  Lorlmer  has  not  been  consummated 
by  payment  of  the  purchase  money,  and  final 
return  made  of  the  sale. 

'™°'°°"  (258  Pa.  51) 

HAMMOND  T.  HAMMOND. 
(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  Deeds  €=»93— Grants — Constbuction. 

The  words  of  a  grant  are  to  receive  a  rea- 
sonable construction  in  accord  with  the  inten- 
tion of  the  parties. 

2.  Eabeiients  €=354— Scope  or  Grant— Coh- 

8TBTJCTI0N. 

That  the  grantee  of  a  right  of  way  over  the 
land  of  another  for  20  years  used  it  without 
constructing  a  bridge  over  a  stream  in  line  of 
bis  easement,  using  a  ford  during  that  time,  does 
not  thereafter  preclude  him  from  erecting  a 
bridge. 

3.  Babbxentb  «s»12(D  — Conbtkuoiion.~ 
Gbant. 

A  grant  of  an  easement  is  to  be  construed 
In  favor  of  the  grantee,  and  includes  whatever 
la  reasonably  necessary  to  the  enjoyment  of  the 
thing  granted. 

4.  Watkbs  and  Water  Goxniscs  «=sl71(l)— 
Injuries  from  Plow  age — Construction  of 
Bbidok— Right  or  Grantee. 

Defendant  was  granted  a  right  of  way  over 
the  lands  of  plaintiff,  and  the  way  crossed  a 
stream.  For  20  years  defendant  used  a  ford  for 
crossing,  and  after  the  erection  of  a  bridge  an 
extraordinary  flood,  which  could  not  have  been 
foreseen,  occurred.  The  bridge  cansed  the  wa- 
ters to  h&dk  up  and  flood  part  of  plaintiffs  land. 
Held  that,  as  one  having  a  right  of  way  over 
the  land  of  another  may  substitute  a  bridge  for 
a  ford  as  a  means  of  crossing  a  stream,  where 
the  method  of  crossing  has  not  been  designated, 
provided  the  bridge  is  constructed  so  as  to  cause 
the  least  practical  damage  to  the  owner,  and 
ample  room  is  left  for  the  natural  flow  of  wa- 
ter, even  in  case  of  ordinary  flood,  defendant 
was  not  liable  for  the  flooding  of  plaintiff's 
land ;  the  bridge  being  constructed  with  plain- 
tiff's knowledge  and  acquiescence  and  in  such  a 
manner  as  to  furnish  ample  room  for  the  natu- 
ral flow  of  water,  even  in  case  of  ordinary  floods. 
6.  Appeai.  and  Error  «=s751— Review— 
Questions  Presented. 
Assignments  of  error,  not  embraced  in  the 
questions  involved,  cannot  be  considered  on  ap- 
peal. , 


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101  ATLANTIC  REPORTBR 


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Appeal  from  Court  of  Common  Fleas, 
Franklin  County. 

Action  by  Martin  F.  Hammond  against 
Philip  A.  Hammond.  From  a  Judgment  for 
defendant,  plaintiff  appeaU.    Affirmed. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKBtB,  FRAZSB,  and  WAIiLING, 
JJ. 

John  W.  Hoke^  of  Caiambersborg,  for  ap- 
pellant Irrln  C.  BIder  and  Walter  E. 
Sharpe,  both  of  Chambersburg,  for  appellee. 

WALUNG,  3,  This  action  of  trespass  in- 
volves the  authority  of  one  having  a  right 
of  way  over  the  land  of  another  to  substi- 
tute a  bridge  for  a  ford  a&  a  means  of  cross- 
ing a  creek,  where  the  method  of  such  cross- 
ing was  not  designated  In  the  original  grant. 
In  1893,  Martin  P.  Hammond,  the  owner  of 
a  large  farm  In  Fannett  township,  FrankUn 
county,  conveyed  a  part  thereof  to  his  son, 
Philip  A.  Hammond,  the  defendant;  and  as 
the  premises  so  conveyed  did  not  extend  to 
the  public  highway,  the  deed  provides  that: 

"It  is  further  agreed  that  the  said  Philip  A. 
Hammond,  his  heirs  and  assigtis,  is  to  have  the 
free  and  uninterrupted  use,  liberty,  and  priri- 
lege  of  a  road  20  feet  in  breadth  from  the  said 
premises  across  the  creek  to  the  public  road, 
now,  hereafter,  and  forever." 

The  creek  is  known  as  "Spring  Run,"  and 
at  the  place  in  question  extends  parallel  with 
and  a  short  distance  from  the  highway.  De- 
fendant and  his  family  bad  occupied  the 
premises  so  conveyed  to  him  for  about  4  years 
prior  to  1883,  and  such  occupancy  has  con- 
tinued to  the  present  time,  and  the  only 
practical  means  of  access  thereto  is  Uie  right 
of  way  included  in  the  deed.  At  the  time  of 
the  conveyance,  for  many  years  prior  thereto, 
and  for  over  21  year&'  thereafter,  the  only 
means  of  crossing  the  creek  at  this  point  wad 
a  ford,  except  a  log  on  which  pedestrians 
could  walk.  In  times  of  high  water  it  was 
difficult,  and  occasionally  for  2  or  3  days  at 
a  time  impossible,  to  ford  the  stream.  Some- 
times, in  order  to  keep  out  of  the  water,  the 
occupants  of  a  buggy  had  to  sit  on  the  back 
of  the  seat,  and  sometimes  It  could  only  be 
forded  on  horseback.  On  various  occasions 
Ice  in  the  creek  rendered  the  ford  unsafe. 
This  method  of  crossing  the  creek  was  espe- 
cially objectionable  on  accoimt  of  defendant's 
children  going  to  and  from  schooL  In  1914, 
to  obviate  the  difficulties  above  mentioned, 
and  that  the  private  road  might  be  the  bet- 
ter fitted  for  the  purpose  for  which  it  was 
granted,  defendant  built  therein  a  bridge 
across  the  creek  of  the  width  of  10^  feet. 
This  was  done  by  the  construction  of  a  stone 
abutment  on  each  side  and  two  stone  piers 
in  the  bed  of  the  creek,  on  which  a  wooden 
bridge  was  placed.  The  cost  of  this  improve- 
ment waa  $184.  Prior  to  the  building  of  the 
bridge^  to  wit  in  1906,  Martin  P.  Hammond 
bad  deeded  the  balance  of  the  farm  to  hla 
son,  Martin  F.  Hammond,  the  plalntlfl  herein. 


who  since  that  time  has  been  In  possession 
of  the  same;  his  farm  buildings  being  on  the 
other  side  of  the  public  road,  nearly  opposite 
the  end  of  this  bridge.  The  center  of  the 
creek  is  the  boundary  line  between  plaintiff 
and  defendant  Plaintiff  had  full  knowledge 
of  the  building  of  the  bridge,  made  no  obJec> 
tion  thereto,  and  in  fact  on  one  or  two  oc- 
casions assisted  in  the  work.  There  was  no 
negligepce  shown  in  the  manner  in  which  the 
bridge  was  constructed;  but  on  August  21, 
1915,  a  flood  greater  than  ever  known  before 
came  down  this  valley,  carried  away  the 
bridge  at  the  public  road  crossing  Just  above 
and  also  the  wooden  part  of  defendant's 
bridge,  which  was  landed  on  plaintiff's  land, 
and  which  the  latter  permitted  to  be  placed 
back  In  [Msitlon  without  objection.  This 
flood  overflowed  the  public  road  and  extended 
to  plaintiff's  dwelling  bouse  and  to  some  ex- 
tent Into  bis  cellar;  the  amount  of  damage 
done  thereby,  however.  Is  not  shown.  It  is 
a  fair  conclusion  that  defendant's  bridge  at 
that  time  obstructed  the  flow  of  water  to 
some  extent  and  increased  the  amount  that 
reached  plaintiff's  premises,  but  such  effect 
would  not  result  from  an  ordinary  flood. 
The  learned  trial  Judge  charged  the  Jury 
that  defendant  might  lawfully  build  the 
bridge,  if  reasonably  necessary  to  afford  him- 
self and  family  a  safe  passage  over  the  right 
of  way  in  question,  provided  the  bridge  was 
so  constructed  as  to  cause  plaintiff  no  ap- 
preciable damage  under  ordinary  circum- 
stances. The  Jury  found  for  the  defendant, 
which  was  in  accordance  with  the  evidencu^ 
and  we  discover  no  reversible  error  in  the 
record. 

[1-3]  The  manifest  intent  of  the  grant  was 
to  afford  the  occupants  of  the  farm  conveyed 
to  defendant  a  safe  and  convenient  passage 
to  the  public  road  at  all  times,  in  wet  weath- 
er as  well  as  dry  weather.  We  cannot  im- 
pute to  the  grantor  the  Intent  of  affording 
access  to  and  from  the  farm  in  question  only 
In  times  of  low  water.  He  might  have  limit- 
ed the  grant  to  the  ford  only  but  he  did  not. 
The  words  of  a  g^rant  are  to  receive  a  rea- 
sonable construction  In  accord  with  the  in- 
tention of  the  parties.  Mercantile  library 
Company  of  Philadelphia  v.  Fidelity  Trust 
Co.,  235  Pa.  6,  83  AU.  692.  The  fact  that 
the  defendant  did  not  proceed  immediately 
to  buUd  the  bridge  does  not  prove  that  the 
parties  construed  the  grant  as  precluding 
blm  from  that  right;  and  the  fact  that  there 
was  then  no  bridge  at  that  point  Is  not  con- 
trolling; neither  is  the  fact  that  for  21  years 
thereafter  defendant  and  his  family  managed 
to  exist  there  without  a  bridge.  As  defend- 
ant bad  possession  of  the  private  road  dur- 
ing all  that  time,  he  lost  no  right  by  failing 
to  improve  It  A  grant  is  to  be  construed  in 
favor  of  the  grantee,  and  Includes  whatever 
Is  reasonably  necessary  to  an  enjoyment  of 
the  thing  granted.   "The  grantee  of  a  defined 


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IN  KE  WATMOUGH'S  ESTATE 


857 


way  has  the  right  to  do  whatsoever  Is  nec> 
easary  to  make  It  passable  or  usable  for  the 
purpoees  named  In  the  grant."  Senhonse  t. 
Christian  et  al.,  1  Term  Rep.  560,  570.  See, 
also,  Nichols  ▼.  Peck,  70  Conn.  439,  39  AtL 
803,  40  U  R.  A.  81,  66  Am.  St.  Rep.  122,  and 
White  T.  Eagle  &  Phcenlx  Hotel  Co.,  68  N. 
H.  38,  34  Aa  672. 

[4,1]  The  grantee  of  the  free  and  nnln- 
termpted  use  of  a  private  road  may  Improve 
It  In  such  manner  as  to  make  It  fit  for  the 
parpose  expressed  In  the  grant,  and  In  so 
doing  may  oonstmct  a  bridge  over  a  ravine 
or  creek,  if  it  be  done  In  such  way  as  to  cause 
the  least  practicable  damage  to  the  owner  of 
the  servient  tenement;  however,  ample  room 
mnst  be  left  for  the  natural  flow  of  the  water, 
even  in  time  of  flood,  except  it  be  so  great  as 
to  be  beyond  ordinary  hitman  experience, 
when  it  Is  regarded  as  an  act  of  God,  for 
which  man  cannot  be  held  responsible.  The 
flood  in  Angost,  1915,  seems  to  have  been  of 
that  nature.  As  the  bridge  in  question  had 
been  built  and  rebuilt  v^ith  the  full  knowl- 
edge and  acquiescence  of  the  plaintiff,  we  are 
not  prepared  to  hold  that  the  court  below  er- 
red in  saying  that  the  burden  was  on  him  to 
show  that  defendant  had  a  safe  and  conven- 
ient way  to  travel  before  the  bridge  was 
built;  in  any  event,  that  matter  Is  not  em- 
braced in  the  statement  of  the  questions  In- 
volved. Considering  all  the  evidence  admit- 
ted, as  to  the  trouble  about  the  wood  lot,  it 
did  plaintiff  no  possible  harm,  and  affords  no 
ground  for  disturbing  the  Judgment.  It  does 
not  seem  necessary  to  refer  in  detail  to  all 
of  the  assignments  of  error,  for  in  our  opin- 
ion the  entire  evidence  would  not  sustain  a 
verdict  for  plaintiff,  even  for  nominal  dam- 
ages. 

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


(OS  Fa.  22) 

In  re  WATMOUQH'S  ESTATBw 
(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

X.  Wills  ^=»21— Testahbktabt  Incafacitt 
— Inquibt. 
Where  a  will  is  attacked  on  ground  of 
testamentary  incapacity,  the  inquiry  must  relate 
to  the  period  of  time  during  the  testator's  life 
when  the  will  was  executed,  published,  and  de- 
clared. 

2.  Wills  ie=s>55(l)— Testamentabt  Incapao- 
rrr  —  Submission'  of  Issue  —  Evidenck  to 
Wabbakt. 
An  issue  devigavit  vd  non,  requested  on  the 
ground   of   testator's   testamentary   incapacity, 
held  properly  refused;    all  testimony,  save  that 
of  a  physician  as  to  testator's  visions  of  red 
devils,  showing  that  testator  was  competent. 
8.  Wills  «s»163(3)  —  Undus  Iiuxuenck  — 
Mebetricious  Relations. 
Where  testator,  who  had  no  near  relatives, 
his  next  of  kin  being  s  nephew,  devised  and  be- 
queathed the  bulk  of  his  estate  to  a  man  and 
wife,  the  fact  that  testator  entertained  meretri- 
dons  relations  with  the  wife  does  not  raise  a 
presumptiMi  that  the  will  was  the  result  of  her 


undue  influence,   bat   such   influence   mnst  be 

proven  as  any  other  independent  fact. 

4.  Wills  «=s>166(S)  —  Undue  Influence  — 

Submission  of  Issue  —  Evidence  —  Suf- 

ficienot. 
Where  a  will  was  attacked,  and  an  issue 
devisavit  vel  non  requested,  it  appearing  that 
the  testator  disinherited  his  next  of  kin,  who 
was  his  nephew,  and  devised  and  bequeathed 
tho  bulk  of  his  fortune  to  a  man  and  wife,  held, 
that  evidence  of  undue  influence  was  insufficient 
to  warrant  the  issue  devisavit  vel  non,  despite 
claims  that  testator  sustained  meretricious  re- 
lations with  the  wife. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

In  the  matter  of  the  estate  of  John  O.  Wat- 
mough,  deceased.  From  a  decree  of  the 
orphans'  court,  affirming  a  decree  of  the 
register  of  wills,  admitting  to  probate  a  pa- 
per purporting  to  be  the  last  will  of  deceas- 
ed, William  Watmough  Grler  and  another, 
who  petitioned  for  issue  devisavit  vel  non, 
appeal.    Affirmed. 

Argued  before  BROWN,  0.  J.,  and  ME5S- 
TREZAT,  potter,  STEWART,  and  FRA- 
ZER,  JJ. 

William  Clarke  Mason,  Howard  S.  Baker, 
and  Franklin  S.  Edmonds,  all  of  Philadel- 
phia, for  appellants.  Maurice  Bower  Saul, 
of  Philadelphia,  and  Buckman  &  Buckman, 
of  Langhome,  for  appellees. 

STEWART,  J.  The  appeal  is  from  the  de- 
cree of  the  orphans'  court  of  Philadelphia 
county,  affirming  the  action  of  the  register 
of  wills  in  admitting  to  probate  a  paper  pur- 
porting to  be  the  last  wUl  of  John  G.  Wat- 
mough, deceased,  and  in  refusing  to  award 
an  Issue  devisavit  vel  non  with  respect  to 
the  same.  The  paper  Is  assailed  on  two 
grounds — want  of  testamentary  capacity  and 
undue  influence. 

[1, 1]  With  this  appeal  comes  an  appendix 
of  nearly  1,600  pages  of  testimony.  If  our 
review  of  the  case  should  seem  dispropor- 
tioned  to  this  v(riume  of  testimony,  we  would 
not  have  it  supposed  that  because  of  this 
fact  any  of  the  testimony  has  been  over- 
looked. Much  of  it  sheds  but  little  light  on 
the  real  controversy,  and  that  which  relates 
to  those  features  of  the  case  which  under 
our  rules  of  law  are  dominating  can  t>e  pre- 
sented and  discussed  within  reasonable  lim- 
its. For  illustration:  In  considering  the 
flrst  ground  of  attack,  namely,  wont  of  testa- 
mentary capacity,  the  Inquiry  must  relate  to 
that  period  of  time  when  the  will  was  execut- 
ed, published,  and  declared.  This  is  true, 
especially  in  this  case,  for  the  reason  that 
there  is  nowhere  even  a  suggestion  that  the 
person  who  executed  the  paper  as  his  last 
will,  in  his  seventy-seventh  year  at  the  time, 
bad  ever  in  his  long  life  been  lacking  in  men- 
tal vigor,  If  we  except  the  brief  period  of  14 
days  when,  45  years  before,  he  was  restrain- 
ed of  his  freedom  because  of  excessive  drink. 
When  considering  the  question  of  testamen- 


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101  ATIjAJNTIC  rxportob 


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tary  capacity,  we  may  therefore  eliminate 
from  consideration  as  mucb  of  the  testimony 
as  relates  to  his  temperament,  personal  hab- 
its, and  disposition,  prior  to  the  March  pre- 
ceding the  execution  of  the  will,  when,  for 
the  first  time,  his  personal  and  family  physi- 
cian, called  on  behalf  of  contestants,  testi- 
fies that  be  discovered  symptoms  of  mental 
decline.  It  is  upon  the  testimony  of  this  wit- 
ness, Dr.  Roussel,  the  contestants  place  their 
main,  if  not  entire,  reliance,  to  sustain  their 
allegation  of  want  of  testamentary  capacity. 
Aside  from  this  witness'  testimony,  there  is 
absolutely  nothing  in  the  evidence  to  raise 
even  a  suspicion  of  mental  unsoundness  In 
the  testator.  As  we  read  his  testimony,  it 
admits  of  no  other  deduction  than  that,  with 
exceptional  opportunities  for  knowing  and 
judging  his  mental  state,  extending  over  8 
years  next  prior  to  the  death  of  the  testator, 
be  never  observed  anything  In  his  conversa- 
tion or  conduct  that  led  him  to  suspect  men- 
tal decline  in  any  degree  until  the  17tb  of 
March  next  preceding  the  6th  of  June,  when 
the  will  in  question  was  executed.  During 
all  these  years  he  was  the  medical  attendant 
upon  Mr.  Watmough,  who  was  a  sufferer 
from  hardening  of  the  arteries,  a  mild  cardi- 
ac degeneration,  and  sclerotic  kidneys,  the 
latter  of  which,  while  at  first  not  strongly 
evidenced,  became  toward  the  latter  part  of 
bis  life  more  pronounced.  In  January  pre- 
ceding bis  death,  an  attack  of  acute  inflam- 
mation of  the  gall  bladder  developed.  The 
witness  having  thus  defined  the  physical 
aliments  for  whlcb  he  was  treating  his  pa- 
tient, his  attention  was  then  directed  to  the 
attendance  be  gave  bim  during  the  months 
of  October,  'November,  and  December,  1912. 
Daring  these  months  he  visited  the  patient 
at  his  home  about  every  other  day,  Increas- 
ing his  visits  to  three  and  four  times  a  day 
as  bis  illness  progressed.  These  visits  he  tes- 
tified were  made  generally  in  the  evening, 
and  they  averaged  in  length  from  an  hour  to 
an  hour  and  a  half,  not  that  so  much  time 
was  employed  in  administering  professional 
relief,  or  In  the  study  of  the  patient's  con- 
dition, but  because  the  witness  enjoyed  con- 
versing with  the  patient,  who,  as  he  admits, 
was  a  man  of  superior  attainments,  of  wide 
experience,  extensive  travel,  and  an  intelli- 
gent and  capable  disputant  In  these  con- 
versations they  discussed  current  events, 
public  men  and  policies,  and  whatever  there 
was  of  general  interest. 

We  refer  to  these  facts  to  confirm  what 
we  have  said  as  to  this  witness'  opportuni- 
ties to  know  the  mental  condition  of  Mr. 
Watmough,  and  emphasize  the  further  fact 
that  during  this  period  of  time,  down  to 
Mardi  17,  1913,  the  witness  calls  to  mind  not 
a  single  irrational  word  or  deed  on  the  part  of 
the  patient,  nothing  In  bis  speech  or  behavior 
that  led  him  to  suspect  that  he  was  not  men- 
tally sound.  Indeed,  he  admits  that  he  bad 
no  such  suqtidon  until  an  occurrence  on  the 


17th  of  March,  when  during  an  evening  vlsitr 
after  his  patient  had  had  a  sleepless  nl^t 
before,  because  of  the  Intense  pain  he  bad 
endured,  the  patient  said  to  the  doctor,  **I 
am  all  right  now;  I  am  welL"  To  this  tbe 
doctor  replied,  "Oh,  the  pains  are  much  bet- 
ter, are  they?"  "Well  yes,"  tbe  patient  re- 
plied, "they  are  better;  I  still  have  them,  but 
the  three  red  devils  told  me  this  morning,  or 
during  the  night,  that  they  were  about  U> 
leave  me."  To  this  witness  replied,  "lou 
are  speaking  figuratively  of  the  pains." 
"Nonsense,"  said  the  patient,  "you  do  not 
understand  what  X  tell  you."  Asked  by  the 
witness  what  be  meant,  be  replied,  "Simply 
that  they  stood  on  my  belly  and  on  tbe  bed. 
and  said  they  were  going  to  leave  me,  and 
told  me  I  was  going  to  improve."  The  wit- 
ness testified  that  this  was  the  first  thing 
that  attracted  bis  attention  to  a  change  in 
tbe  mental  condition  of  the  patient;  and 
this  be  defined  as  a  visional  hallucination, 
associating  it  with  what  he  defined  as  an 
auditory  hallucination,  referring  to  a  state- 
ment made  by  the  patient  that  he  bad  beard 
a  call  during  the  night  which  liad  caused 
him  to  go  out  to  the  yard  in  tbe  middle  of 
the  night.  When  further  Interrogated  as 
to  these  hallucinations,  the  witness  replied: 
"A  call  which  excited  his  attention  and  caus- 
ed him  to  go  to  the  yard  in  the  middle  of  the 
night.  Now,  this  may  or  may  not  have  been. 
There  might  have  been,  for  example,  a  call 
from  the  yard.  That  may  or  may  not  have  been 
an  evidence  of  auditory  delusion.  The  absolute 
strong  points  are  the  questions  of  these  visual 
evidences  of  red  devils,  even  with  forked  tails 
detailed  that  they  told  him  certain  things,  the 
fact  that  he  had  seen  them." 

In  the  same  connection  be  testified  that  he 
could  recall  nothing  that  the  patient  ever 
told  him  that  be  had  heard  from  the  red 
devils  other  tban  what  related  to  his  person- 
al health.  Solely  because  of  this  visual  bal- 
luclnatlon,  as  the  witness  denominated  it, 
with  respect  to  seeing  red  devils,  and  its  oc- 
casional recurrence,  and  because  be  bad 
reached  the  conclusion,  based  on  this  fact 
alone,  that  his  patient  was  a  victim  of  senile 
dementia,  and  no  opportunity  had  been  of- 
forded  him  at  tbe  particular  hour  of  the  day 
when  the  will  was  executed  to  examine  blm 
to  see  whether  at  that  particular  hour  be  was 
free  from  the  delusion  with  respect  to  the  red 
devils.  It  remained  with  blm  a  dlqratable 
question  whether  the  testator  bad  at  tbat 
time  testamentary  capacity,  lie  admitted 
time  and  again  tbat  there  were  days  during 
the  month  of  June,  1913,  when  he  was  entire- 
ly free  from  the  delusion  and  entirely  clear 
in  his  mind,  when  be  knew  his  relatives,  had 
an  intelligent  understanding  of  the  value  of 
his  estate,  knew  how  much  income  he  derived 
therefrom,  and  knew  as  well  the  persons  he 
intended  to  make  tbe  objects  of  his  bounty. 
To  this  extent  tbe  vritness  went,  but  no  fur- 
ther ;  and  yet  he  visited  his  patient  tbe  eve- 
ning of  the  day  the  will  was  executed,  and 
learned  from  him,  not  only  that  ue  had  made 
bis  will  that  day,  but  lajsta  relative  to  tne 


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IN  BE  WATHOTTOH'S  ESTATE 


859 


-disposition  he  had  made  of  his  property.  If, 
upon  being  told  that  the  patient  had  that  day 
-executed  a  last  will,  and  that  by  the  will  he 
had  given  to  the  maid,  who  had  virtaally 
teen  his  housekeeper,  the  mnnlflcent  gift  of 
$100,000,  any  question  arose  in  tne  witness' 
mind  as  to  the  competency  of  the  patient  to 
make  a  will,  it  Is  at  least  surprising  that  he 
shoald  have  overlooked  such  fact  In  his 
lengthy  examination.  An  undisputed  fact  in 
the  case  Is  that  2V^  months  after  the  execu- 
tion of  the  will,  during  which  time,  according 
to  the  witness,  the  patient  was  steadily  de- 
clining In  vigor,  without  hesitation  on  his 
part,  or  any  question  as  to  the  patient's  sanity 
and  the  ability  to  dispose  intelligently  of  his 
property,  so  far  as  we  are  permitted  to  know, 
the  witness  accepted  from  his  patient  a  free 
gift  of  $2,000  with  which  to  buy  for  himself 
an  automobile. 

Against  this  uncertain  and  inconclusive 
testimony — and  we  include  the  medical  ex- 
perts' testimony  as  well,  to  which  we  have 
made  no  special  reference — there  is  the  tes- 
timony of  the  two  witnesses  to  the  execution 
of  the  will,  one  of  whom  had  drafted  it,  and 
both  of  whom  were  entirely  reputable  gentle- 
men, had  long  know  Mr.  Watmough,  one  of 
them  having  sustained  professional  relations 
with  him,  who  say  that  when  the  will  was 
executed  the  testator  was  in  possession  of 
his  faculties,  that  he  had  himself  dictated  the 
provisions  in  the  will,  had  been  fully  inform- 
ed with  respcet  to  all  it  contained,  and  that 
the  will  had  been  executed  with  no  one  pres- 
ent excepting  the  testator  and  themselves, 
supplemented  by  the  testimony  of  a  great 
number  of  witnesses,  among  them  gentlemen 
of  high  professional  standing,  with  large  ex- 
perience in  deahng  with  questions  of  this 
cbaractOT,  and  who — some  of  them  at  least, 
notably  the  late  John  G.  Johnson,  Esq.,  speak- 
ing from  observation  and  conversation  with 
the  testator  within  a  very  few  days  of  the 
date  of  the  will — with  one  voice  attest  the 
testator's  mental  soundness.  Granting  the 
delusion  testified  to  by  Dr.  Roussel,  it  is 
manifest  that  it  was  not  such  a  delusion  as 
was  incompatible  with  the  retention  of  the 
general  powers  and  faculties  of  the  mind; 
nor  IS  there  the  slightest  Indication  that  it 
exerted  any  influence  whatever  in  the  dis- 
position made  by  the  testator  of  his  estate. 
The  evidence,  as  we  read  It,  not  only  affords 
no  ground  to  support  a  finding  of  testamentary 
incapacity,  but  it  abundantly  sustains  a  find- 
ing to  the  contrary. 

Turning  now  to  the  second  ground  of  as- 
sault, a  somewhat  fuller  statement  of  facts 
Is  here  required  to  comprehend  the  signifi- 
cance of  the  evidence  produced  by  one  side 
and  the  other.  The  testator,  at  the  time  of 
the  execution  of  the  will,  was  in  his  seventy- 
seventh  year.  He  was  then  childless  and  a 
widower;  his  wife,  between  whom  and  him- 
self there  had  always  been  the  closest  con- 
fidence and  endearment,  had  died  May  27, 
1911.    He  himself  died  October  10, 1913,  leav- 


ing as  his  next  of  kin  a  half-brother,  James 
H.Watmough,  the  children  of  a  deceased  half- 
brother,  the  children  of  a  deceased  half-sis- 
ter, and  William  W.  Grier,  son  of  a  deceased 
sister,  who  Is  an  appellant  here.  The  testa- 
tor was  a  man  of  large  estate,  exceeding  a 
half  million  dollars  in  value,  which  he  had 
always  managed  himself,  and,  so  far  as  ap- 
pears, with  intelligent  Judgment  He  had 
resided  for  many  years  at  2114  Walnut  street, 
Philadelphia,  and  continued  his  residence 
there  after  his  wife's  death.  Following  the 
death  of  his  wife,  he  retained  in  his  service 
his  wife's  maid,  Zalie  Faget,  whom  ha  in- 
stalled as  his  general  housekeeper,  to  whom 
he  gave  exclusive  charge  of  Ills  household 
affairs,  employing  at  the  same  time  other 
domestic  employ&i  and  servants.  He  lived 
in  a  manner  corresponding  to  his  estate;  he 
was  a  man  of  education  and  culture,  and  of 
refined  tastes;  he  had  few  Intimates,  and 
still  fewer  confidential  friends;  he  had  but 
little  intercourse  with  his  kindred,  and  dur- 
ing the  later  years  of  bis  life  none;  he  fre- 
quently expressed  indifference  toward  them, 
in  return  for  what  he  regarded  their  indif- 
ference towards  him;  he  had  withdrawn 
from  active  business  years  before,  and  was 
living  in  retirement;  he  found  his  enjoy- 
ment in  wide  travel  and  in  indulging  his 
taste  in  acquiring  a  large  collection  of  curios 
and  such  bric-a-brac  as  appealed  to  him.  In 
the  latter  he  had  invested  a  large  sum  of 
money,  and  his  collection  of  them  was  valu- 
able. It  was  this  fondness  for  rare  articles 
of  virtue  that  brought  lilm  into  relation  with 
one  Ferdinand  KeUer,  who  was  a  dealer  in 
such  articles,  at  first  In  a  small  way.  This 
was  as  early  as  1881,  when  Keller's  store 
was  on  Ridge  avenue.  There  the  testator  oc- 
casionally visited  him  until  in  1883,  upon  tes- 
tator's advice,  KeUer  moved  his  place  of 
business,  as  well  as  his  residence,  to  216 
South  Ninth  street  This  latter  property  had 
been  purchased  by  the  testator  and  was  by 
him,  in  1888,  conveyed — his  wife  Joining  in 
the  deed — to  Keller's  wife,  for  a  nominal 
consideration.  Meanwhile  the  acquaintance 
between  Keller  and  the  testator,  begun  In 
1881,  ripened  into  an  intimacy  which  develop- 
ed into  a  confirmed  and  avowed  friendship 
and  mutual  trustfulness,  which  continued  un- 
abated during  all  the  remaining  years  of  tes- 
tator's life.  It  included  as  well  the  individual 
members  of  Keller's  family,  which  consisted 
of  his  wife  and  three  children.  During  all 
these  years,  except  during  such  periods  as 
the  testator  was  absent  from  the  city,  he  was 
almost  a  dally  visitor  to  Keller's  place  of 
business,  where  he  was  accustomed  to  spend 
several  hours  on  each  occasion,  occupying  for 
the  most  part  a  room  back  of  the  store  which 
was  used  by  KeUer  as  a  repair  room.  In 
this  room  he  met  frequently  Mrs.  Keller, 
who  assisted  her  husband  in  his  business,  and 
their  children,  and  would  occasionally  there 
Join  with  them  at  lunch.    Certain  it  is  Uiat 


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101  ATIiANTIO  REPORTER 


(Pa. 


this  association  between  tbe  testator  and  the 
Keller  family,  and  bis  fondness  for  eacb 
member  of  the  family,  was  well  known  to 
the  testator's  wife,  for  during  her  lifetime 
she  freqaently  accompanied  her  husband  to 
Keller's  store,  sometimes  with  a  view  to 
make  purdiases,  at  times  for  no  other  pur- 
pose than  to  meet  and  talk  with  the  differ- 
ent members  of  the  family.  That  she  held 
them  In  high  esteem,  particularly  Mrs.  Keller, 
Is  evidenced  by  the  consideration  she  showed 
the  latter  by  visiting  her,  inviting  her  to 
her  own  home,  and  tbe  letters  written  to  her, 
in  which  she  always  addresses  her  in  most 
familiar  and  affectionate  terms;  some  In- 
viting her  to  come  to  her  home  to  tea  and  to 
bring  with  her  the  "dear  children"  and  Kel- 
ler, and  others  expressing  her  appreciation 
of  kindness  shown  her  by  Mrs.  Keller.  These 
letters  fuUy  attest  her  affectionate  regard  for 
the  Kellers  as  a  family.  Letters  from  tes- 
tator to  Keller,  covering  the  same  period, 
1886  to  1911,  some  from  Europe,  others  from 
distant  parts  of  this  country,  and  others 
from  his  home,  some  on  business,  others  of 
purely  friendly  and  social  character,  all 
abound  In  expressions  of  deepest  concern,  not 
only  for  Keller,  but  for  Mrs.  Keller  and  the 
Individual  members  of  his  family,  concluding 
with,  "God  bless  and  prosper  you  all  and 
reunite  us  again,"  "With  much  love  to  all," 
"Love  to  dear  Mrs.  Keller,  yourself,  dear  Mi- 
lie  and  Janet,  your  devoted  friend,"  "Ever 
your  devoted  friend,"  and  like  affectionate 
expressions. 

Testator  bought  a  great  part  of  his  col- 
lection of  curios,  which  he  valued  so  high- 
ly, from  or  through  Keller.  That  the  latter 
derived  much  advantage  through  his  patron- 
age, not  only  In  trade,  but  through  his  gen- 
erosity as  well,  cannot  be  doubted;  but, 
whatever  may  have  been  Keller's  or  Mrs. 
Keller's  motive  in  extending  to  the  testator 
the  many  acts  of  kindness  shown  him,  it 
is  too  manifest  to  admit  of  question  that  bis 
feeling  for  the  Kellers  was  that  of  sincere  af- 
fection. By  will  made  In  March,  1907,  after 
making  a  few  pecuniary  bequests,  he  left  his 
entire  remaining  estate  to  his  wife  for  life, 
with  remainder  to  the  Kellers.  In  April, 
1911,  be  executed  another  will,  prepared  by 
J.  H.  Buckman,  Esq.,  whereby  he  gave  all 
to  bis  wife  for  life,  except  certain  bequests, 
and  what  he  called  his  "collection,"  to  Kel- 
ler, telling  Mr.  Buckman  at  the  time  that 
Keller  was  bis  dearest  friend — the  best  he 
ever  had,  the  only  friend  who  had  stuck  to 
him  through  thick  and  thin.  In  a  later  will 
of  December,  1912,  eight  months  after  the 
death  of  his  wife,  drawn  by  the  late  John  G. 
Johnson,  Esq.,  be  made  the  following  be- 
quests: One  of  $10,000  to  William  W.  Grler, 
one  of  tbe  contestants  and  next  of  kin, 
which,  as  there  stated,  was  fixed  in  that 
amount  because  the  legatee  was  possessed  of 
an  Independent  fortune  of  his  own  and  sel- 
dom visited  or  communicated  with  tbe  testa- 


tor; one  of  $20,000  to  Zaile  Faget;  another 
aggregating  $50,000  to  the  three  children  of 
Ferdinand  and  Matilda  Keller;  another  to 
Ferdinand  Keller,  whom  he  describes  as  bis 
good  friend,  of  $15,000,  with  a  like  sum  to 
Mrs.  Keller,  the  wife;  another  to  the  wife 
of  testator's  half-brother,  James  H.  Wat- 
mough,  of  $50,000.  Following  some  minor 
bequests  and  a  specific  devise,  he  gave  the 
entire  balance  of  his  estate  to  Keller  and 
his  wife,  or  tbe  survivor  of  them.  By  codi- 
cil to  this  will,  dated  January  6,  1912,  with- 
out changing  in  other  respects  the  terms  of 
this  earlier  will  of  December  12th  in  any 
other  regard,  be  substituted  as  executors  of 
the  win  John  O.  Johnson,  Esq.,  and  Ferdi- 
nand Keller. 

We  refer  to  these  wills  as  showing  the 
mental  attitude  of  the  testator  towards  the 
Kellers,  both  during  the  lifetime  of  his  wife 
and  following  upon  ber  death,  as  well  his 
attitude  toward  his  kindred.  They  show 
unmistakably  a  set  purpose  on  his  part  of 
long  standing  to  make  Keller  and  his  family 
his  principal  beneficiaries.  This  was  the 
condition  of  affairs  upon  the  death  of  Mrs. 
Wutmongh  and  immediately  following.  The 
testator's  manner  of  life  was  much  the  same 
after  as  before.  As  age  was  creeping  on,  his 
physical  infirmities  Increased,  and  he  became 
tbe  victim  of  disease,  often  painful  in  the 
extreme,  and  Increasing  in  virulence,  until 
the  summer  of  1913,  when  the  will,  the  sub- 
ject of  this  controversy,  was  executed.  Four 
mouths  thereafter  he  died.  During  this  peri- 
od of  Invalidism  be  required  much  personal 
attention.  The  only  person  from  whom  he 
seems  to  have  received  any  was  Zalle  Faget, 
she  who  had  been  his  wife's  maid,  and  whom 
he  retained  In  his  employ  as  general  house- 
keeper, and  tbe  Kellers,  whom  he  visited  at 
their  store  with  the  same  frequency  as  be- 
fore, so  long  as  he  was  able.  His  sodal  in- 
tercourse was  apparently  limited  to  tbe  Kel- 
ler family.  His  Intimacy  with  them  and 
his  fondness  for  them  may  seem  strange, 
when  tbe  difference  In  station  and  rank  Is 
considered ;  but  tbe  evidence  puts  it  beyond 
question  that  somehow  or  other  they  had  be- 
come the  chief  objects  of  bis  beneficent  con- 
cern. 

[3,4]  This  brings  us  to  the  will  whidi  la 
the  subject  of  tbe  present  controversy,  exe- 
cuted June  6,  1913.  This  will  was  drafted 
at  the  direction  of  the  testator  by  Charles 
J.  McDermott,  Esq.,  at  the  office  of  John  O. 
Johnson,  Esq.,  and  executed  at  testator's  own 
home,  in  the  presence  of  Mr.  McDermott  and 
Maurice  Bower  Saul,  Esq.,  both  of  whom 
testify  that  no  one  but  themselves  and  the 
testator  were  present  at  the  time.  The  first 
item  in  this  will  gives  to  Zalle  Faget,  "now 
in  my  employ,  and  who  was  maid  to  my  dear 
wife,  Caroline  Drexel  Watmough,  in  her  life- 
time," the  sum  of  $100,000,  "in  apprecia- 
tion of  her  kindness  to  my  beloved  wife." 
Separate  bequests,  one  only  amounting  to  aa 


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IN  KE  WATMOUGH'S  ESTATE 


861 


much  as  $1,000,  were  made  to  his  servants, 
conditioned  on  tbelr  being  In  his  employ  at 
the  time  of  his  death;  then  follows  this 
direction: 

"All  the  rest,  residue  and  remainder  of  my 
estate  I  ^ve,  devise  and  bequeath  to  my  frienda, 
Ferdinand  Keller,  Sr.,  and  Matilda  Keller,  his 
wife,  in  equal  parts,  or  in  case  only  one  of 
them  shall  Burvlve  me,  then  to  the  laryiTor  of 
them." 

Of  this  will  he  appointed  his  "two  friends" 
— ^he  so  speaks  of  them — John  O.  Johnson, 
Esq.,  and  Ferdinand  Keller,  Sr.,  executors. 
Upon  the  facts  and  circumstances  before 
stated,  and  upon  testimony  yet  to  be  referred 
to,  the  appellants  rest  their  contention  that 
the  will  was  a  product  of  an  ondne  influence 
operating  upon  the  mind  of  the  testator  at 
the  time  of  its  execution,  which  substituted 
another's  will  for  his  own.  It  is  not  pre- 
tended that  the  testator  was  subjected  to 
physical  coercion  of  any  kind;  the  sole  con- 
tention being  that,  because  of  criminal  rela- 
tions he  Is  alleged  to  have  sustained  to- 
wards Mrs.  Keller,  the  wife  of  Ferdinand,  he 
was  subjected  to  a  moral  constraint  which 
so  entered  into  the  making  of  the  will  as  to 
make  it  the  expression  of  another's  desires 
rather  than  hla  own ;  in  other  words,  that  he 
was  no  longer  a  free  agent  At  this  point, 
the  young  woman,  Miss  Faget,  to  whom  is 
given  a  legacy  of  $100,000,  may  drop  out  of 
the  case.  It  is  only  fair  to  her  to  say  here 
that  there  is  not  a  particle  of  evidence  in  the 
case  that  would  support  a  finding  that  either 
alone  or  In  combinatloa  with  others  she  con- 
tributed in  any  way  to  the  procurement  of 
the  will,  not  even  to  the  extent  of  solicita- 
tion that  she  should  be  a  beneficiary  there- 
under. The  argument  in  support  of  the  gen- 
eral charge  assumes  that  the  will  is  inoffl- 
dous,  in  that  it  denies  to  those  upon  whom 
the  law  would  cast  the  inheritance  in  the 
absence  of  a  will  all  participation  in  the 
estate,  and  then  proceeds  to  derive  from  the 
evidence,  in  explanation,  a  meretricious  rela- 
tion with  one  of  the  chief  beneficiaries  under 
the  will,  from  the  influence  of  which  testator 
could  not  and  did  not  escape,  but  which  was 
operative  In  his  mind  and  controlling  when 
the  will  was  executed. 

Unquestionably,  within  the  literal  mean- 
ing of  the  term,  the  will  was  Inofficious.  The 
weight  to  be  given  this  circumstance  de- 
pends upon  the  degree  of  kinship  in  which 
the  party  disinherited  stands  toward  the  tes- 
tator. A  will  disinheriting  a  child  or  chil- 
dren dependent,  and  substituting  in  their 
stead,  as  beneficiary,  one  with  whom  the  tes- 
tator sustained  Illicit  relations,  would  be 
not  only  Inoffldons,  but  unnatural,  and  a 
strong  presumption  would  arise  in  sudi  case 
that  the  testator,  even  though  of  testamen- 
tary capacity,  was  nevertheless  in  thraldom 
of  some  kind  Inconsistent  with  free  agency. 
The  more  remote  the  degree  of  kinship,  the 
feebler  becomes  the  presumption,  until  it 
reaches  the  point  where  it  becomes  negligi- 


ble. The  nearest  of  kin  in  this  case  was  a 
nephew,  the  son  of  a  deceased  sister,  and 
here  the  contestant  To  this  nephew  by  a 
former  wUl  was  given  a  legacy  of  $10,000. 
It  was  the  belief  of  the  testator  that  he  was 
a  person  of  independent  fortune.  This  lega- 
cy was  omitted  from  the  last  will ;  the  tes- 
tator assigning  as  a  reason  for  the  omis- 
sion that  the  nephew  seldom  visited  him  or 
had  any  communication  with  him.  What- 
ever the  presumption  in  such  case,  it  was 
more  than  met  and  overcome  by  the  evidence 
showing  the  reasons  testator  gave  for  dis- 
inheriting the  nephew;  this  evidence  being 
unchallenged  and  no  attempt  having  been 
made  to  show  that  the  reasons  on  which 
testator  relied  rested  on  any  mistake  of 
fact.  Certainly  the  fact  that  the  will  was 
Inofficious  can  l>e  of  minor  significance  In 
such  a  case.  It  in  no  wise  conflicts  with 
contestant's  theory  that  a  meretricious  rela- 
tion with  Mrs.  Keller  produced  the  will;  nev- 
ertheless It  adds  little,  If  anything.  In  sup- 
port of  such  contention. 

We  do  not  stop  to  Inquire  into  the  disput- 
ed question  of  fact  for  the  reason  that  It 
has  not  the  significance  that  has  been  at- 
tached to  It  throughout  tills  case.  Gront- 
Ing  the  impr<q;»er  relation  charged,  such  cir- 
cumstance In  itself  would  not  make  the  will 
illegal.  A  testator,  so  long  as  he  Is  a  free 
agent  has  a  right  to  give  his  property  to 
whom  he  pleases;  nor  does  the  fact  that 
with  the  chief  beneQclary  in  the  will  he  sus- 
tained improper  relations  raise  any  presump- 
tion that  the  will  was  made  under  a  con- 
straining Influence  exerted  by  the  paramour. 
Such  Influence,  If  alleged,  must  be  proven, 
as  any  other  Independent  fact  by  adducing 
such  additional  evidence  as  would  warrant 
no  otlier  reasonable  Inference  than  that  the 
influence  of  the  relation  not  only  produced 
the  will  by  actual  or  moral  constraint  to  a 
degree  that  the  testator  was  unable  to  resist. 
We  find  no  such  evidence  to  the  case;  noth- 
ing that  even  indicates  anxiety  or  concern 
on  the  part  of  the  Kellers  as  to  the  will,  im- 
portunity by  either  that  the  testator  make  a 
will,  much  less  that  he  make  them  benefid- 
aries  thereunder,  or  that  they  or  either  of 
them  were  taken  into  testator's  confidence 
with  respect  to  the  will  about  which  we  are 
Inquiring.  No  combination  or  conspiracy  is 
shown  to  delude,  deceive,  or  by  artifice  of 
any  kind  to  accomplish  the  execution  of  the 
will.  There  Is  nothing  In  the  evidence  to 
show  that  testator  was  not  at  perfect  freedom 
to  express  Ids  own  desires.  Independent  of 
the  wishes  of  any  other.  The  Impression  left 
upon  an  impartial  mind,  after  reading  the 
evidence  In  the  case,  must  be  that  in  making 
the  will  he  was  master  of  himself,  and  that 
in  disposing  of  his  estate,  acting  with  entire 
freedom  of  choice,  he  gave  It  to  beneficiaries 
who,  though  not  related  by  kinship,  yet  stood 
higher  in  his  affectionate  regard  tlian  those 
who  were  so  related,  in  consequence  of  long 


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101  ATLANTIO  RBPORTEB 


(Pa. 


continued  asaodatlon  and  Intimacy,  wbldbi 
ripened,  as  we  hare  said,  Into  closest  friend- 
ship, with  mutual  trust  and  confidence.  We 
do  not  deem  It  necessary  to  enter  Into  any 
discussion  to  vindicate  the  legal  roles  and 
principles  which  we  have  applied  In  consid- 
ering the  case.  Our  Reports  abound  in  cases 
where  they  have  been  explained  and  applied 
with  Judicial  sanction  and  approval,  to  an 
extent  that  further  effort  to  that  end  would 
be  unprofitable,  espedally  in  view  of  the 
very  careful  and  exhaustive  review  of  the 
authorities  bearing  on  the  subject  by  our 
Brother,  Von  Moschzlsker,  in  the  recent  case 
of  Phillips'  Estate.  244  Pa.  SS,  00  AtL  4S7. 
We  are  of  opinion,  upon  a  careful  examina- 
tion of  all  the  evidence  in  the  present  case, 
that  a  verdict  against  this  will  could  not 
properly  be  snstalned. 

The  decree  of  the  court  refusing  an  issue 
is  accordingly  affirmed,  at  the  costs  of  the 
appellants. 

(2S8  Pk  70) 

In  i«  SHOVER'S  ESTATE. 

(Supreme  Court  of  Pennsylvania.     May  7. 
1017.) 

Wnxs  «3sl40— NxmouFATivc  Wills— Vaud- 
rrr. 
A  nuncupative  will,  made  by  testatrix  while 
suffering  from  blood  poisoning  resulting  from 
bee  sting,  cannot  be  sustained,  where  for  at 
least  36  hours  after  mailing  the  will  she  could 
have  dictated  a  will,  had  a  scrivener  been  se- 
cured, as  might  readily  have  been  done,  and 
such  will  cannot  be  upheld  on  the  ground  that 
she  could  not  with  her  own  hand  have  signed 
the  will,  because  of  blood  poisoning,  for  she 
might  hare  made  her  mark,  or  authorized  some 
one  to  sign  her  name. 

Appeal  from  Orphans'  (^onrt,  Northamp- 
ton County. 

In  the  matter  of  the  estate  of  Mary  Alice 
Shover,  deceaaeU.  From  a  decree  setting 
aside  probate  of  a  nuncupative  will,  and 
refusing  an  issue  devisavlt  vel  non.  Otto 
Shover,  administrator  c  t,  a.,  and  others,  ap- 
peal.    Affirmed.  

Argued  before  MBSTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

H.  M.  Hagerman,  of  Bangor,  for  appel- 
lants. Everett  Kent,  of  Bangor,  for  appel- 
lees. 

WALLING,  J.  Mary  Alice  Shover,  a  wid- 
ow residing  on  a  farm  in  Northampton  coun- 
ty, died  July  25,  1015,  at  the  age  of  about  48 
years.  For  some  months  she  had  been  af- 
flicted with  kidney  trouble,  apparently  not 
serious,  when,  on  or  about  July  4,  1015,  she 
was  stung  on  the  left  arm  by  a  bee,  bloo'd 
poisoning  resulted,  and  she  was  confined  to 
her  bed  on  and  after  July  13th.  Proponents' 
evidence  tends  to  show  that  on  Monday  morn- 
ing, July  10th,  Mrs.  Shover,  in  the  presence 
of  witnesses  called  by  her  for  that  purpose, 
made  parol  testamentary  disposition  of  her 


estate^  consisting  of  personal  property 
amounting  to  about  |4,000,  and  bequeathed 
same  to  the  i^oponents,  two  of  whom  were 
her  stepchildren  and  the  thiiVl  a  member  of 
her  household,  to  the  exdusion  of  contestant, 
who  was  her  father  and  next  of  kin.  Thia 
so-called  nuncupative  will,  having  been  reduc- 
ed to  writing,  was  admitted  to  probate  by  the 
register  of  wills,  from  which  contestant  took 
an  appeal  to  the  orphans'  court,  where,  after 
full  bearing  and  an  exhaustive  ccmsideration, 
a  decree  was  entered  setting  aside  the  pro- 
bate of  said  alleged  will,  and  also  refusing 
an  issue  on  the  grouiM  tliat  no  substantial 
dispute  bad  arisen  upon  a  material  question 
of  fact 

We  have  examined  the  record  and  agree 
with  that  conclusion.  A  nuncupative  will 
can  be  sustained  only  when  made  during  the 
last  sickness  of  the  testator,  and  in  sudi  ex- 
tremity thereof  as  precluded  a  written  wllL 
See  Mellor  v.  Smyth,  220  Pa.  160,  60  Atl.  502. 
The  orphans'  court  found  on  abundant  ev- 
idence that  Mrs.  Shover  could  have  made  a 
written  will  when  she  made  the  allegeW  oral 
will  and  for  at  least  36  hours  thereafter; 
that  is,  up  until  Tuesday  evening.  There  is 
some  dispute  as  to  her  condition  on  Wednes- 
day and  Thursday,  and  admittedly  she  was 
unconscious  from  Thursday  night  until  her 
death  on  Sunday  morning.  In  fact,  all  the 
evidence  is  to  the  effect  that  she  was  in 
sound  an'd  disposing  mind  during  the  entire 
day  Monday.  True,  she  was  suffering,  and 
her  arms  and  hands  were  badly  swollen, 
from  the  effect  of  the  blood  poisoning;  but 
she  was  Just  as  capable  of  dictating  a  writ- 
ten as  an  unwritten  will,  and  had  ample  time 
to  do  so.  The  circumstance  that  she  might 
not  have  been  able  to  sign  the  will  with  h« 
own  band  is  of  no  moment,  she  could  have 
made  her  mark  or  authorized  some  one  to 
sign  her  name.  The  use  of  a  telephone  or 
automobile  would  have  brought  a  scrlvaierto 
her  befdside  any  time  within  an  hour.  And 
yet  during  that  entire  day  and  evening  no 
effort  was  made  to  secure  the  preparation  or 
execution  of  a  written  will,  or  any  valid  rea- 
son given  why  it  was  not  done,  and  the  court 
below  found  that  the  same  condition  existed 
during  the  following  day,  and  all  that  time 
Mrs.  Shover  made  no  request  for  a  scrivener, 
and  did  nothing  looking  to  the  making  of  a 
written  will,  although  accortllng  to  the  evi- 
dence she  realized  the  serious  nature  of  her 
illness,  and  her  mind  was  on  the  subject  of  a 
testamentary  disposition  of  her  property 
early  Monday  morning.  Under  such  circum- 
stances it  Is  vain  to  argue  that  she  whs  pre- 
cluded from  making  a  written  will  by  the  ex- 
tremity of  her  last  sickness.  A  mudi  less 
opportunity  to  make  a  written  will  has  often 
been  held  sufficient  to  prevent  the  probate  of 
one  not  written.  Porter's  Appeal,  10  Pa.  254 ; 
BuUer's  Estate,  223  Pa.  252,  72  Atl.  508: 
Munhall's  Estate,  234  Pa.  160,  83  AU.  66. 


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COMMONWEALTH  y.  KOONTZ 


863 


Mrs.  Sliorer  bad  ample  opportttnlty  to 
make  a  written  will  on  Monday,  and  bence 
the  evidence  as  to  how  an  attempt  on  her 
part  to  do  80  later  in  the  week  might  hare 
affected  her  physical  condition  was  unim- 
portant, as  wag  that  seeking'  to  show  ez- 
presBlons  of  hostlUty  by  her  against  the  con- 
testant As  she  was  manifestly  not  precltAl- 
ed  from  making  a  written  wUl  by  the  extrem- 
ity of  her  last  sickness,  the  other  questions 
in  the  case  are  not  Important 

The  assignments  of  error  are  overraled, 
and  the  deciee  is  affirmed,  at  the  ooet  of  ap- 
pellants; 

(258  Pa.  M) 

COMMONWEALTH  v.  KOONTZ  et  •! 
(Supreme  CSoort  of  PemuiylTania.    May  7, 1917.) 

1.  Abandonment  «=>2— What  CJoNSTrrcmss. 

The  characteristic  element  of  abandonment 
is  the  voluntary  relinquishment  of  ownership, 
whereby  the  thing  so  dealt  with  ceases  to  be  the 
proper^  of  any  person,  and  becomes  the  sub- 
ject of  appropriation  by  the  first  taker;  it  being 
in  that  respect  distinguished  from  all  other 
modes  by  whiicb  ownership  may  be  divested. 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  first  and  Second  Series,  Abandon- 
ment] 

2.  TimNPIKEB     AND     TOIX     RoADS     «=»29     — 

Bight  of  Way  — "AnANDONKBNT"  — What 

C6NaTlTDTE€^— Saub. 

A  deed  conveying  land  for  right  of  way,  as 

well  as  a  house  and  lot,  to  a  turnpike  company, 

provided  that,  in  case  the  turnpike  should  be 

abandoned,  the  house  and  lot  should  revert  to  the 

Santor,  his  heirs  and  assigns.  Subsequently 
e  turnpike  company  conveyed  its  road  to  the 
commonwealth  for  a  consideration.  Held  that, 
as  a  sale  is  not  an  "abandonment,"  the  charac- 
teristic of  which  is  a  voluntary  relinquishment 
of  ownership,  and,  as  that  word  has  a  definite 
meaning,  the  transfer  of  the  turnpike  to  the 
state  was  not  an  abandonment,  entitling  the 
grantor  or  his  heirs  to  retake  the  house  and  lot 

Appeal  from  Court  of  Common  Pleas, 
Franklin  County. 

Ejectment  by  the  Commonwealth  of  Penn- 
eylvania  against  Mary  C.  Koontz  and  Levi 
li.  Horst  From  a  judgment  for  plaintiff, 
defendants  appeal.    Affirmed. 

Argued  before  MESTREZAT,  POTTER, 
HOSCHZISKER,  FRAZER,  and  WALUNG, 
JJ. 

J.  A.  Strlte  and  Edwin  D.  Strite,  both  of 
Chambersburg,  for  appellants.  William  H. 
Keller,  First  Deputy  Atty.  Gen.,  and  Prands 
Shunk  Brown,  Atty.  Gen.,  for  the  Common- 
wealth. 

WALLING,  J.  In  1863,  the  Harrisburg, 
Carlisle  &  Chambersburg  Turnpike  Road 
Company  bought  the  land  here  at  i&sue,  com- 
prising 80  perches,  of  Alex.  K.  McClure,  as  a 
tollgate  house  property.  It  was  a  part  of 
Mr.  McClure's  farm,  and  situate  in  Franklin 
county,  on  the  turnpike  between  Chambers- 
burg and  Shlppensburg.  The  deed  therefor 
contains  a  provision  as  follows,  viz.: 


"That,  if  the  said  turnpike  company  shall  at 
any  time  remove  said  gate  house  from  the  said 

g remises,  then  the  said  Alex.  K.  McCIure,  his 
eirs  or  assigns,  shall  have  the  first  right  to  pur- 
chase said  house  and  lot  at  an  appraisal  to  be 
fixed  by  the  appraisers,  two  to  be  chosen  by  the 
parties  hereto  and  the  two  so  chosen  to  select  a 
third,  and,  in  ease  tbe  said  turnpike  road  shall 
be  abandoned  by  said  turnpike  company,  then 
the  house  and  lot  hereby  conveyed  shall  revert  to 
said  Alex.  K.  McClure,  his  heirs  and  assigns." 

In  1867,  Mr.  McClure  sold  the  balance  of 
the  form  to  Levi  Horst,  the  deed  for  which 
contains  the  following  reservation,  viz.: 

"The  house  known  as  the  tollgate  house  with 
80  perches  of  ground  having  been  conveyed  by 
the  said  party  of  tbe  first  part  to  the  Chambers- 
burg &  Carlisle  Turnpike  Road  Company,  to 
use  and  enjoy  the  same  so  long  as  said  prop- 
erty shall  be  uaeA  as  a  tollgate  b^  said  company, 
this  conveyance  to  said  Horst  is  made  subject 
to  the  rights  of  said  turnpike  company,  and 
when  said  toll^ite  property  shall  be  abandoned 
as  a  tollgate  by  said  company  it  shall  pass  to 
said  party  of  the  second  part  his  heirs  and 
assigns,  in  fee." 

By  sundry  conveyances,  etc,  Horst's  title 
became  vested  in  the  defendants.  The  half 
acre  was  used  as  a  tollhouse  property  until 
1915,  when  by  amicable  agreement  the  turn- 
pike company  sold  and  conveyed  the  said 
turnpike  road  to  the  commonwealth  of  Penn- 
sylvania for  $25,000,  which  sale  embraced  all 
of  said  company's  property  used  in  connec- 
tion with  the  said  road  or  appurtenant  there- 
to, including  bridges,  tollhouses,  and  other 
structures,  and  all  road  materials  and  equip- 
ment on  hand,  etc.,  and  especially  Indnding 
the  half  acre  here  at  issue,  with  the  buildings 
and  appurtenances,  together  with  all  rights 
and  easements  embraced  in  the  McClure  deed 
therefor.  The  state  highway  commissioner  act- 
ed for  the  commonwealth  in  the  acquisltioB 
of  the  turnpike  road,  whidi  at  once  became 
a  state  highway  free  from  tolls.  The  pur- 
chase of  the  road  did  not  include  the  fran- 
chise of  the  turnpike  company. 

[1,2]  In  our  opinion  the  trial  court  was 
right  in  holding  that  the  sale  to  the  common- 
wealth was  not  an  abandonment  of  the  land 
in  question  whether  it  be  considered  as  real 
or  personal  property. 

"The  characteristic  element  of  abandonment 
is  tbe  voluntary  relinquishment  of  ownership, 
whereby  tbe  thing  so  dealt  with  ceases  to  be  the 
property  of  any  person,  and  becomes  the  sub- 
ject of  appropriation  by  the  first  taker.  In  this 
respect  it  is  distinguishable  from  all  other  modes 
by  which  ownership  may  be  divested.  Thus  it  is 
in  the  matter  of  the  cessation  of  ownership  that 
abandonment  is  distinguished  from  a  transfer  by 
sale  or  gift;  but  it  the  title  be  continued  in 
another  by  any  of  the  modes  known  to  the  law 
for  the  transfer  of  property,  it  has  been  no 
abandonment,  because  the  right  first  acquired 
still  exists  and  the  continuity  of  possession  re- 
mains unbroken."    1  Ruling  Case  Law,  2. 

"A  sale  or  conveyance  of  a  property  is  not  an 
abandonment,  within  the  meaning  of  a  clause  in 
a  deed  that  the  property  shall  revert  to  tbe 
grantor  upon  its  abandonment  by  the  grantee. 
The  word  'abandonment'  has  a  well-defined 
meaning  in  the  law,  which  does  not  embrace  a 
sale  of  conveyance  of  the  property.     It  is  the 


AssFor  other  cmMs  an  urn*  topic  and  KEf-NUMBBR  tn  all  Ker-Numbarad  DlBests  and  IndazM 


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(Pa. 


giving  up  of  a  thine  absolutely,  without  refer- 
ence to  any  partlcniar  person  or  purpose,  and 
includes  both  the  intention  to  relinquish  all  claim 
to  and  dominion  over  the  property  and  the  ex- 
ternal act  by  which  this  intention  is  executed; 
80  that  it  may  be  appropriated  by  the  next  com- 
er." St  Peter's  Church  v.  Bragaw,  144  N.  C. 
120,  56  S.  B.  688,  10  L.  R.  A.  (N.  S.)  633,  636. 
"There  can  be  no  such  thing  as  abandonment 
in  favor  of  a  particular  individual  or  for  a  con- 
sideration. Such  act  would  be  a  gift  or  sale. 
An  abandonment  is  'the  relingnisoment  of  a 
right,  the  giving  up  of  something  to  which  we 
are  entitled.'  *  *  *  If  it  were  made  for  a 
consideration,  it  would  be  a  sale  or  barter;  and 
If  without  consideration,  but  with  an  intention 
that  some  other  person  should  become  the  posses- 
sor, it  wonld  be  a  gift"  Stq>hena  t.  Mansfield, 
11  OaL  863,  866. 

The  above  and  other  authorities  dted  for 
appellee  sustain  the  contention  that  a  trans- 
fer of  property  from  one  party  to  another  for 
a  consideration  Is  not  an  abandonment  And 
In  that  respect  we  see  no  controlling  differ- 
ence between  the  sale  of  a  turnpike  road  and 
that  of  other  property.  In  this  case  It  Is 
the  abandonment  of  the  turnpike  road,  and 
not  of  the  franchise,  that  under  the  proviso 
In  the  original  deed  gives  rise  to  the  rever- 
sion. In  West  Philadelphia  Pass.  Ry.  Co.  v. 
Philadelphia  &  West  Chester  Turnpike  Road 
Co.,  186  Pa.  459,  40  Atl.  787,  the  defendant, 
having  the  right  to  maintain  and  operate  a 
street  railway  in  the  western  end  of  Market 
street,  Philadelphia,  expressly  and  by  stat- 
utory authority,  released  to  the  city  all  its 
rights,  privileges,  franchises,  etc..  In  said 
street,  and  over  20  years  later  attempted  to 
build  a  street  railway  therein,  but  was  en- 
joined on  the  ground  that  defendant  had  re- 
linquished and  In  fact  abandoned  aU  Its 
rights  in  the  street  However,  the  question 
whether  a  sale  of  property  constitutes  an 
abandonment  was  not  before  the  court  in  that 
cas&    In  Black  t.  Blkhom  Mining  Co.,  163 


V.  S.  446,  16  Sup.  Ct.  1101,  41  U  Ed.  221,  a 
locator  of  an  undivided  interest  in  a  mining 
claim,  who  had  neither  bought  nor  paid  for 
the  same,  sold  his  interest  and  left  the  prop- 
erty; and  it  is'  there  held  that  he  had  no 
sudi  vested  interest  in  the  mining  claim  aa, 
after  his  death,  would  entitle  his  widow,  who 
had  not  joined  in  sadi  sale,  to  a  dower  In- 
terest therein.  The  locator  is  there  referred 
to  as  having  abandoned  his  dalm,  but  the 
question  as  to  the  sale  of  the  property  con- 
btituting  an  abandonment  was  not  necessarily 
involved  in  the  decision  of  the  ca8& 

A  grant  Is  In  general  construed  against  the 
grantor;  and  here  the  rights  of  the  parties 
were  fixed  by  the  deed  to  the  turnpike  com- 
pany, and  were  not  affected  by  the  stipula- 
tions in  the  later  deed  to  Levi  Horst  As  the 
former  deed  was  to  the  turnpike  company, 
its  successors'  and  assigns,  the  company  was 
within  Its  rights  in  making  the  sale  to  the 
commonwealth.  There  is  nothing  to  Justify 
the  conclusion  that  a  sale  of  the  turnpike 
road  caused  a  forfeiture  of  the  title  to  the 
half  acre ;  nor  any  provision  in  the  first  deed 
that  the  property  should  revert  to  the  grantor 
when  the  turnpike  ceased  to  t>e  a  toll  road. 
The  clau&e  giving  Mr.  McClure  the  first  right 
to  purchase  on  the  removal  of  the  gatehouse 
might  seem  to  negative  such  an  intent;  and 
as  the  gatehouse  has  never  been  removed, 
the  right  to  that  option  has  not  arisen.  The 
law  will  not  imply  a  different  agreement  from 
that  which  the  parties  have  made.  Aye  v. 
Philadelphia  Co.,  198  Pa.  451,  44  Atl.  565,  74 
Am.  St.  Rep.  696.  Mr.  McClure  might  have 
provided  that  the  house  and  lot  should  revert 
upon  a  sale  of  the  turnpike  road;  but,  as  he 
did  not  we  must  construe  the  deed  afi  it  Is 
written. 

The  assignments  of  errar  ore  overruled, 
and  the  Judgment  is  affirmed. 


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IN  BE  WHEEL.£B'S  ESTATE 


865 


(U  Del.  Cb.  IMS) 

MESSICK  T.  JOHNSON  et  aL 

(Coort  of  Chancerr  of  Delaware.     Sept   26, 
1917.) 

SxxctmoN  *=»171(4)—Sai,k8— Injunction. 

Where  defendant,  who  was  seeking  to  have 
land  claimed  by  complainant  sold  to  satisfy  a 

i'udgmcnt  obtained  against  a  former  owner,  who 
lad  conveyed  to  complainant's  grantor  before 
rendition  of  the  judgment,  offered  no  evidence  to 
show  fraad  in  complainant's  title,  sale  will  be 
enjoined,  for  otherwise  complainant's  title  would 
be  clouded,  though  complainant  would  have  no 
opportunity  to  attack  the  validity  of  defendant's 
Judgment. 

BlU  for  injunction  by  WllUam  R.  Messlck 
against  Ella  S.  Johnson  and  Jacob  West, 
Sheriff.    Defendants  enjoined. 

Injunction  bill.  By  the  bill  the  complain- 
ant seeks  to  enjoin  a  sale  by  the  sheriff  un- 
der a  writ  of  venditioni  exponas  issued  on  a 
Judgment  obtained  by  EHia  S.  Johnson,  one 
of  the  defendants,  in  the  Superior  Court  in 
and  for  Sussex  County.  The  facts  appear  in 
tlte  opinion  previously  filed  in  this  cause,  re- 
ported in  98  Atl.  218. 

Woodburn  Martin,  of  Georgetown,  for  com- 
plainant Robert  C.  White,  of  Georgetown, 
for  defendants. 

THE  CHANCELLOR.  In  the  opinion  filed 
with  the  order  overrnUng  the  demurrer  to 
the  UU  the  material  fact^  alleged  in  the  biU 
were  stated.  Afterwards  the  defendant,  Ella 
S.  Johnson,  filed  an  answer  admitting  sub- 
stantially all  the  allegations  of  the  bill  and 
denying  the  title  of  the  complainant,  which 
she  said  was  fraudulent  and  therefore  null 
and  void.  She  also  filed  a  cross-biU  setting 
out  the  diaracter  of  the  fraud,  and  asked 
that  the  deed  evidencing  the  title  of  the  com- 
plainant be  annulled.  Testimony  on  both 
sides  was  taken  by  depositions  before  an  ex- 
aminer. The  complainant  put  in  evidence  his 
paper  title,  and  the  defendant,  Ella  S.  John- 
son, only  offered  evidence  as  to  the  refusal 
of  the  Deputy  Register  of  Wills  to  accept  the 
resignation  of  Everett  M.  Barr  as  adminis- 
trator of  HetUe  A.  S.  KoUock.  At  the  final 
hearing  the  cross-bill  was  on  motion  of  the 
complainant  therein,  Ella  S.  Johnscm,  the  de- 
fendant in  the  original  cause,  dismissed. 
There  was,  therefore,  no  change  in  the  facts 
to  be  considered,  except  evidence  that  the 
resignation  of  Barr  as  administrator  had 
been  refused. 

Inasmuch  as  all  of  the  material  questions 
raised  were  passed  on  in  the  opinion  on  the 
demurrer,  and  the  defendant,  Ella  &  John- 
son, did  not  offer  any  evidence  as  to  the 
fraud  with  which  she  charged  the  title  of  the 
complainant  to  be  tainted,  but  on  the  con- 
trary withdrew  the  cross-bill,  and  as  I  ad- 
here to  the  views  expressed  in  the  opinion 
heretofore  filed  In  this  cause,  which  were 
based  largely  on  decisions  of  the  courts  of 
Delaware,  including  the  Court  of  Errors  and 


Appeals,  the  complainant  wiU  be  awarded  a 
final  decree  for  a  permanent  injunction  en- 
Joining  the  defendants  from  selling  the  prem- 
ises of  the  complainant  for  the  payment  of 
the  Judgment  recovered  against  the  adminis- 
trator of  Hettie  A.  S.  Kollock. 

The  case  of  Hall  v.  Greenly,  1  Del.  Oh.  274, 
cited  by  the  solicitor  for  the  defendant  does 
not  conflict  with  this  view  taken.  In  the  cit- 
ed case  Chancellor  Ridgely  refused  to  set 
aside  a  voluntary  deed  made  by  a  father  to 
his  two  minor  sons,  the  land  having  been  sold 
by  the  sheriff  in  execution  of  Judgments 
against  the  father  recovered  subsequently  to 
the  deed  but  contracted  prior  to  it,  and  left 
the  complainant  to  take  his  more  effective 
remedy  in  an  action  at  law.  There  were  also 
other  reasons  assigned.  In  the  case  before 
this  court  the  equity  of  the  bill  is  to  prevent 
the  cloud  on  the  title  which  would  otherwise 
arise  in  case  the  sale  is  made. 

It  is  not  necessary  to  decide  whether  that 
Judgment  was  Irregular  and  invalid  by  reason 
of  the  resignation  of  the  administrator  be- 
fore the  institution  of  the  action  on  which 
the  Judgment  was  entered,  for  the  result 
would  be  the  same  even  if  the  Judgment  be 
valid. 

The  complainant  as  the  owner  of  land  may, 
though  he  be  not  in  possession  thereof,  en- 
Join  a  sale  thereof  to  collect  a  Judgment  ob- 
tained agralnst  a  prior  owner  who  before  re- 
covery of  the  judgment  had  conveyed  the 
land  to  one  under  whom  the  complainant 
took  title,  and  the  basis  of  the  Jurisdiction  is 
the  prevention  of  the  creation  of  a  cloud  on 
the  title  of  the  complainant  which  would  re- 
sult from  such  sale,  where  the  complainant 
could  not  attack  the  validity  of  the  Judgment 

The  costs  of  all  parties  will  be  Imposed  on 
the  defendant,  EHia  S.  Johnson. 

Let  a  decree  be  entered  accordingly. 


(U  Del.  Cb.  *si 
In  re  WHEELER'S  ESTATE. 
(Orphans'  Court  of  Delaware.    New  Caatl«. 
Aug.  1,  1917.) 

1.  Trusts  <3=»198— Saxxs  of  Tbust  Pbofbbtx 

— PUBCHASE    BY    TKUSTKB — VALIDITT. 

When  a  trustee  or  other  fiduciary  purchases 
at  his  own  sale,  the  transaction  is  not  void,  but 
voidable,  and  until  it  is  rendered  void,  or  his 
liability  is  fixed,  be  takes  and  holds  tne  legal 
title. 

2.  ExEctrroES  and  Adkinisteatobb  «=>372  — 
Sat.es  fob  Payuent  of  Debts — CoiiPZ.EriON 
OF  Bid. 

A  judgment  was  recovered  against  a  mar- 
ried woman  in  her  lifetime,  and  after  her  death 
her  husband,  as  administrator,  became  a  party 
to  an  amicable  action  on  the  judgment  pursuant 
to  which  the  property  was  sold.  The  husband, 
who  had  a  statutory  right  to  one-half  of  the  land 
for  life  after  the  payment  of  her  debts,  became 
the  purchaser  for  the  amount  of  the  judgment, 
costs,  and  taxes.  Bright  years  later,  and  after 
the  husband's  death,  the  property  was  sold  for 
the  payment  of  his  debts.  Beld,  that  the  pur- 
chaser would  not  be  relieved  from  the  completion 
of  the  purchase,  as  there  was  no  irregularity  in 


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the  husband  becoming  •  party  to  tbe  amicable 
action,  and  he  was  not  required  to  bid  more 
than  sufficient  to  protect  himself;  and  the  court 
will  not  relieve  a  bidder,  when  the  legal  title 
would  pass  subject  to  some  alleged  outstanding 
equities,  which  might  or  might  not  exist  or  be 
enforceable. 
s.  exectttoiia  and  a  dministbatobs  <s=>329(1) 

— Sales  fob  Payment  of  Debts — Pbopkbty 

Subject  to  Sale. 
The  record  facts  did  not  constitute  notice  to 
the  husband's  creditors,  or  put  them  on  inquiry 
as  to  any  defect  in  or  cloud  upon  bis  title,  and 
they  were  entitled  to  have  toe  land  sold  for 
their  benefit. 
4.  Executobs  and  Aduinistbatobs  $=>3S8(4) 

—Sales  fob  Patiosnt  of  Debts— Repbksen- 

tatiors  as  to  Title. 
A  purchaser  of  land  sold  for  the  payment  of 
a  decedent's  debts  under  an  order  of  the  orphans' 
court  is  not  entitled  to  rely  on  any  representa- 
tion as  to  the  title  made  by  the  administrator  or 
his  counsel. 
6>  EZXCUTOBS  AND  Administbatobs  «=»388(4) 

—Sales  fob  Payment  of  Debts  —  Caveat 

Emptor. 
Where  land  sold  for  the  payment  of  a  dece- 
dent's debts  under  an  order  of  the  orphans'  court 
had  been  purchased  by  the  decedent  at  a  sale  un- 
der a  judgment  against  his  deceased  wife  at  a 
time  when  he  was  her  administrator  and  also 
life  tenant,  the  principle  of  caveat  emptor,  which 
is  peculiarly  applicable  to  judicial  sales,  mixht 
be  invoked. 

Proceeding  for  the  sale  of  real  estate  of 
George  E.  Wheeler,  deceased.  On  application 
by  the  administrator  for  forfeiture  of  a  de- 
posit by  the  purchaser.  Purchaser  directed 
to  pay  the  balance  of  the  purchase  money  or 
forfeit  tbe  deposit 

Statement  of  the  Case. 

Lend  of  a  decedent,  George  E.  Wbeeler, 
was  sold  by  order  of  the  orphans'  court  for 
the  payment  of  his  debts;  his  personal  es- 
tate being  Insufficient  for  the  purpose.  At 
the  sale  the  purchaser  paid  part  of  the  pur- 
chase money  and  having  failed  to  pay  the 
balance  before  tbe  date  for  tbe  return  of  tbe 
sale,  tbe  administrator  asked  that  the  de- 
posit be  forfeited.  Thereupon  tlie  purchaser 
filed  bis  reasons  for  decliuing  to  take  tbe 
title  and  pay  the  balance  of  the  purchase 
money. 

It  was  alleged  that  tbe  property  was  pur- 
chased in  1908  by  Lemira  Wheeler,  the  wife 
of  George  R  Wheeler,  tbe  decedent,  and  the 
consideration  in  tbe  deed  to  her  was  $1,750. 
In  1887  a  Judgment  was  recovered  against 
Lemira  Wheeler,  and  was  revived  in  her 
lifetime.  After  her  death  in  1907,  without 
having  had  children  by  George  E.  Wheeler, 
her  husband  became  her  administrator  and 
in  1908  became  as  administrator  a  party  to 
an  amicable  action  in  tbe  Superior  Court  on 
tbe  judgment,  pursuant  to  which  the  prop- 
erty was  sold  nn  a  venditioni  exponas  tg  the. 
January  term,  1900,  to  George  E.  Wheeler 
for  a  sum  just  sufficient  to  pay  that  Judg- 
ment, costs  and  taxes,  and  on  confirmation  of 
the  sale  a  deed  was  made  to  him  by  the  sber- 


iir  on  January  26,  1009,  since  which  time  and 
until  he  died  he  has  been  in  pocsession  of 
the  property. 

After  his  deatli  tbe  administrate  of 
George  E.  Wbeeler  by  petition  to  the  oiptums' 
court  setting  forth  the  debts  of  George  E. 
Wbeeler  and  the  insufficiency  of  bis  personal 
estate  to  pay  them,  obtained  an  order  for 
sale  as  above  stated. 

The  objections  were  heard  upon  tbe  facts 
stated  by  the  purchaser  in  bis  statement  of 
reasons  respecting  tbe  title  by  Cbanoellor 
Curtis,  sitting  as  presiding  Judge. 

Artemas  Smith,  of  Wilmington,  for  ad- 
ministrator. Walter  J.  Willis,  of  Wilming- 
ton, for  purdiaser. 

CURTIS,  P.  J.  The  limitations  on  tbe  con- 
duct of  a  fiduciary  respecting  tbe  purchase 
of  tbe  property  in  bis  control  are  established 
in  Delaware  as  strictly  as  anywhere  else. 
No  person  is  permitted  to  purchase  an  in- 
terest in  property  and  tuM  it  for  bis  own 
benefit,  where  he  has  a  duty  to  perform  la 
relation  to  such  property  which  Is  inconsist- 
ent with  tbe  character  of  a  purcbaser  on  his 
own  account  and  for  bis  individual  use. 

In  Van  Dyke  v.  Johns,  1  Del.  Cb.  83,  12 
Am.  Dec.  76,  an  administrator  at  a  sale  by 
him  in  1789  of  land  of  bis  decedent  for  the 
payment  of  debts  purchased  the  property 
through  another  person  to  whom  on  con- 
firmation of  tbe  sale  by  tbe  orphans'  court 
the  land  was  conveyed,  and  by  him  reooo- 
veyed  to  the  administrator.  In  1817  die 
heirs  at  law  filed  a  bill  against  tbe  admin- 
istrator to  have  him,  who  still  owned  the 
property,  declared  a  trustee  for  them.  Hie 
court  recognized  tbe  principle  Invoked  as 
being  "a  general  rule  of  public  policy  de- 
pending, not  upon  tbe  drcnmstances  of  the 
case,  but  upon  general  principles,  that  bow- 
ever  honest  the  circumstances  of  any  indi- 
vidual case  may  be,  tbe  general  Interests  of 
Justice  require  tbe  purctiase  to  be  avoided 
In  every  case."  In  that  cited  ca&e  the  conrt 
refused  relief  on  two  grounds:  (1)  Nearly 
thirty  years'  delay  and  acquiescence;  and  ^ 
tbe  conclusiveness  of  tbe  title  by  coufirmt- 
tlon  of  the  sale  by  the  orphans'  court  (ex- 
cept on  appeal)  as  that  court  had  complete 
power  to  inquire  into  tbe  matter. 

Tbe  same  strict  rule  was  stated  and  ap- 
plied in  Downs  v.  Rlckards,  4  Del.  Ch.  416. 
There  Rlckards,  who  had  been  appointed 
guardian  of  minors  after  un  order  had  been 
made  by  tbe  orphans'  court  appointing  an- 
other person  trustee  to  sell  land  of  the  mi- 
nors, purchased  through  some  one  else  the 
minors'  land.  The  sale  was  confirmed,  Bid- 
ards  being  then  the  guardian,  and  a  deed 
was  made.  Subsequently  the  minors  by  bill 
sought  to  establish  a  trust  for  their  benefit, 
based  on  actual  and  constructive  trust  to 
exist,   first  because  independent  of  actual 


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fraud  U  was  within  the  role  which  prohibits 
a  trustee  to  purchase  land  held  by  him  as 
trustee,  and  second  because  there  was  also 
legal  fraud.  The  disability  of  a  trustee  ex- 
tends to  sales  conducted  by  others  as  to 
those  conducted  by  himself.  "The  principle 
is,"  as  Chancellor  Bates  expressed  it,  "that 
one  shall  not  act  for  himself  in  any  matter 
with  respect  to  which  he  has  duties  to  per- 
form or  interests  to  protect  for  another. 
•  •  *  The  principle  loolis,  not  merely  to 
prevent  fraud  in  the  management  of  the  salu, 
but  to  the  broader  object  of  relieving  trus- 
tees from  any  possible  conflict  between  duty 
and  self  interest."  Its  application  is  of  the 
widest  and  Includes  all  persons  holding  fidu- 
ciary confidential  relations  with  others  re- 
specting property,  and  fairness  and  adequacy 
of  the  price  are  ImmaterlaL  The  court  also 
held  that  the  confirmation  of  the  sale  was 
not  a  bar  to  the  equitable  relief. 

In  the  case  of  Gberhardt  et  al.  v.  Chris- 
tiana Window  Glass  Co.  et  al.,  9  Del.  Ch.  284, 
81  AtL  774,  the  same  principle  was  applied  to 
a  purchase  of  property  of  the  company  by  a 
director  of  the  company. 

It  was  also  urged  as  an  objection  to  the 
title,  that  because  George  A.  Wheeler  was 
a  life  tenant  of  the  property  owned  by  bis 
wife  his  purchase  of  the  remainder  at  the 
sheriff's  sale  inured  to  the  benefit  of  the  ten- 
ants in  remainder,  the  heirs  at  law  of  his 
wife.  Under  some  circumstances  a  tenant 
for  life  who  acquires  the  title  under  a  Judi- 
cial sale  made  to  collect  the  debt  of  a  prior 
owner,  holds  it  for  the  benefit  of  the  re- 
maindermen as  well  as  for  his  own  benefit 
Co.  Utt  i  453,  267;  Washburn  on  Real 
Property  (5th  Ed.)  120;  Allen  v.  De  Groodt, 
98  Mo.  159,  11  S.  W.  240, 14  Am.  St.  Rep.  626. 
But  it  is  not  necessary  to  so  hold  under  the 
facts  in  this  case. 

Assuming,  however,  that  these  principles 
would  have  been  applied  to  a  timely  action 
by  the  heirs  at  law  of  Lemlra  Wheeler,  wife 
of  George  B.  Wheeler,  against  George  B. 
Wheeler,  and  a  trust  set  up  for  the  benefit 
of  the  heirs  at  law,  the  question  still  remains 
whether  at  this  time,  and  under  the  circum- 
stances here  present,  the  purchaser  at  the 
sale  held  by  the  administrator  of  George  E. 
Wheeler  can  rightly  refuse  to  take  the  title 
to  the  land  which  be  bought. 

[1,2]  When  a  trustee,  or  other  fiduciary, 
purchases  at  his  own  sale  he  takes  the  legal 
title  and  holds  it  until  the  transaction  is  ren- 
dered void  or  his  liability  is  fixed.  In  other 
words,  the  transaction  is  not  void,  but  void- 
able. 18  Cyc.  771.  Many  circumstances  may 
exist  which  would  bar  the  heirs  at  law  of 
Lemlra  'Wheeler  from  a  right  to  hold  George 
El  Wheeler  to  be  a  trustee  for  their  benefit, 
such  as  an  actual  acquiescence.  Again, 
George  E.  Wheeler  had  an  Interest  in  the 
land  when  sold  by  the  sheriff.  He  had  a 
statutory  right  to  hold  one-half  of  the  real 
estate  of  his  wife  for  Ufe  after  the  payment 


of  her  debts.  There  was  no  irregularity  In 
his  becoming  a  party  to  an  amicable  action 
upon  the  Judgment  held  by  McCann  against 
lemlra  Wheeler,  for  if  the  debt  was  due  and 
unpaid  the  administrator  rightly  co-operated 
with  the  creditor  to  save  costs  in  the  proce- 
dure for  the  collection  of  the  del)t.  Neither 
does  it  appear  that  there  was  any  Irregulari- 
ty on  the  part  of  the  administrator  in  the 
settlement  of  the  personal  property  of  his 
deceased  wife. 

The  only  evidence  of  fraud  suggested  here 
is  the  inadequacy  of  the  price  for  which 
George  E.  Wheeler  bid  In  the  property.  But 
that  is  not  shown,  for  he  was  buying  land 
in  which  he  had  a  life  estate,  and  the  value 
of  that  interest  does  not  appear.  He  did 
not  do  wrong  In  not  bidding  more  than  was 
necessary  to  pay  the  encumbrance  which  was 
ahead  of  his  Interest.  He  had  a  right  to 
bid  to  protect  himself,  and  was  not  bound  to 
bid  more,  and  was  certainly  under  no  legal 
or  equitable  duty  to  bid  up  to  the  value  of 
the  property,  if  that  had  been  in  excess  of 
the  value  of  his  own  Interest 

[3]  Since  the  purchase  of  the  land  by 
Wheeler  the  rights  of  third  persons  hav«  in- 
tervened, viz.  his  creditors,  for  whose  benefit 
the  last  sale  was  made.  They,  or  some  at 
least  of  them,  are  not  necessarily  chargea- 
ble with  notice  of  any  defect  In  or  cloud  up- 
on the  title  which  he  had.  The  record  facts 
do  not  constitute  such  notice,  or  put  them  on 
inquiry.  As  the  personal  estate  of  George  E. 
Wheeler  is  Insufficient  to  pay  his  debts,  his 
creditors  may  have  it  sold  for  their  benefit 
The  equities  of  the  heirs  at  law  of  Lemlra 
Wheeler,  if  any  there  be,  in  the  proceeds  of 
sale  needed  for  the  payment  of  the  debts  of 
the  decedent  may  be  adjusted  even  after  the 
title  has  passed  to  the  purchaser  at  the  sale 
by  the  administrator, 

[4]  The  purchaser  at  the  sale  is  not  enti- 
tled to  rely  on  any  representation  made  as 
to  the  title  by  the  administrator,  or  his  coun- 
sel. In  re  Estate  of  Donaghy,  9  Del.  Ch. 
441,  80  AU.  721 ;  11  Ruling  Case  Law,  414. 
While  a  court  which  authorized  a  Judicial 
sale  may  feel  Justified  in  relieving  a  bidder 
from  compliance  with  the  terms  of  sale 
where  it  is  clear  that  title  to  the  property 
sold  would  not  pass  to  the  purchaser,  still 
the  court  would  not  be  Justified  in  so  doing 
when  clearly  the  legal  title  would  pass  sub- 
ject to  some  alleged  outstanding  eqxiltles 
which  might  or  might  not  exist,  or  be  en- 
forceable. This  present  case  is  of  the  latter 
class.  Lap.se  of  about  eight  years  should  al- 
so be  taken  into  consideration  in  this  pres- 
ent matter. 

[5]  it  is  also  quite  Just  in  this  case  to  in 
voKe  the  principle  of  caveat  emptor,  whidi  It 
peculiarly  applicable  to  Judicial  sales.  II 
Ruling  Case  Law,  §  414.  In  Smith  v.  Wild- 
man,  178  Pa.  245, 35  Ati.  1047, 36  L.  R.  A,  8*1, 
56  Am.  St  Rep.  760,  the  court  said  that  the 
disapi)ointment  in  the  title  to  be  acquired 
by  the  sale  is  not  ground  to  relieve  the  pir- 


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chaser  from  compliance  with  the  terms  of 
sale. 

Therefore,  chiefly  for  the  reason  that  the 
sale  is  made  for  the  benefit  of  creditors  of 
George  B.  Wheeler,  the  other  considerations 
being  also  given  weight,  the  purchaser  should 
be  required  to  pay  the  balance  of  the  pur- 
chase money  or  forfeit  the  amount  deposit- 
ed at  the  time  of  the  sale. 

(U  Del.  Ch.  877)  «=^= 

WOLOOTT,   Atty.   Gen.,   ex    rel.   MALONEY 

et  al.  ▼.  DOREaiUS  et  al. 

(Court   of  Chancery   of   Delaware.     April  30, 

1917.) 

1.  NUISANCK     €=»61— PUBUO     NUISANCK— IN- 

JDNCTION— Crimes. 
An   act  interfering  with  public  rights,  by 
affecting  public  health  or  safety,  or  interfering 
with  use  of  public  property,  though  indictable, 
may  be  enjoined  as  a  pubhc  nuisance. 

2.  Nuisance    ©ssTS— Public    Nuibancb— Ik- 
junction— Evidence. 

That  an  act  may  be  enjoined  as  a  public  nui- 
sance, the  evidence  must  be  clear  and  convinc- 
ing, and  it  being  conflicting,  and  injury  to  the 
public  being  doubtful,  injunctim  should  not  is- 
sue. 

8.  noisahci   4s>61  —  pubijo    nmsanck  — 
Noises. 
It  is  the  effect  on  persons  of  average  sensi- 
bilities or  animals  of  normal  temperament  which 
determines  whether  a  noise  is  a  public  nuisance. 

4.  Nuisance    ®=>61  —  Public    Nuisance  — 
Noises. 

The  effect  of  a  noise  on  a  person  of  average 
sensibility,  necessary  to  render  the  noise  a  pub- 
lic nuisance,  must  be  real,  actual,  physical  dis- 
comfort 

5.  Nuisance    9=361  —  Public    Nuisance  — 
Noises. 

The  effect  of  a  noise  on  a  horse  of  normal 
temperament  traveling  on  a  highway,  to  make 
the  noise  a  public  nuisance,  as  rendering  the 
highway  unsafe,  must  be  to  injure  or  frighten  it. 

6.  Nuisance  ®=»75— Injunction — Costs. 

Defendants  must  pay  the  costs  of  an  action 
to  enjoin  a  public  nuisance,  where  it  existed 
at  the  time  bill  was  filed,  though  abated  by  their 
acta  before  final  hearing. 

Action  by  Josiah  O.  Wolcott,  Attorney 
General,  on  the  relation  of  Michael  W.  Ma- 
loney  and  another,  against  Thomas  E.  Dore- 
mus  and  others,  as  officers  and  members  of 
an  unincorporated  association.  Preliminary 
injunction  dissolved. 

See,  also,  85  AtL  904. 

Infonaati(»i  in  the  nature  of  an  Injunc- 
tion bill  to  restrain  the  shooting  at  targets 
on  the  grounds  occupied  by  the  Dn  Pont 
Trapshootlng  Club.  The  cause  was  beard 
on  the  Information,  answer,  testimony  of 
witnesses  produced  before  and  heard  orally 
by  the  Chancellor  and  exhibits.  ^I%e  facts 
sufficiently  appear  in  the  opinion  of  the 
Ohancelor. 

Robert  Penlngton,  of  Wllmlnsttm,  for  the 
rehttora  WUllam  S.  Hllles  and  J.  P.  lAlfey, 
both  of  Wilmington,  for  the  d^endants. 

THE  CHANCELLOR.  The  cause  is  an 
information  In  the  nature  of  a  bill  filed  by 
the  Attorney  General  on  the  relation  of  two 


citizens  to  perpetually  enjoin  the  members 
of  a  trapshootlng  club  from  continuing  a  pub- 
lic nuisance^  After  answer  filed  an  ai^U- 
cation  for  a  preliminary  injunction  was 
heard  on  the  Information,  answer,  ex  parte 
affidavits  and  exhibits.  It  having  been 
proved  that  shot  from  guns  used  in  the  trap- 
shooting  fell  into  the  public  road  on  which 
the  premises  of  the  club  abutted,  and  that 
the  safety  of  persons  using  the  highway 
was  seriously  endangered  thereby,  an  In- 
junction was  awarded  enjoining  the  shoot- 
ing from  all  the  traps  of  the  club  until  the 
further  order  of  the  Chancellor.  Afterwards 
the  defendants  filed  a  motion  to  dissolve  the 
preliminary  injunction,  based  largely  on  al- 
legations that  since  the  granting  of  the  in- 
junction the  location  of  all  of  the  traps  and 
the  direction  in  which  the  shots  were  fired 
were  so  changed  as  that  it  was  impossible  for 
shot  to  reach  the  highway.  Testimony  of 
many  witnesses  was  heard  in  the  cause  in 
January,  1914,  and  in  lieu  of  oral  arguments 
briefs  of  counsel  were  filed  March  12,  1917. 

In  the  opinion  filed  when  the  preliminary 
injunction  was  granted  the  general  fiicts 
were  fully  stated,  and  it  is  not  necessary  to 
review  them  here,  except  as  to  the  new  mat- 
ters shown.  It  was  shown  that  travtiera 
along  the  road  cannot  be  struck  by  shot 
fired  from  guns  by  persons  using  the  traps 
as  now  arranged.  But  these  traps  were  all 
moved  much  closer  to  the  public  road,  and 
the  gunners  would  now  stand  in  handicap 
contests  at  firing  points  in  the  traps  wbldi 
are  about  45,  55,  105,  165  and  205  feet  from 
the  public  road.  The  traps  as  newly  arrang- 
ed have  not  in  fact  been  used,  the  rearrange- 
ment thereof  being  made  after  the  prelimi- 
nary injunction  had  been  issued  against 
shooting  from  any  of  the  traps.  Under  the 
old  location  of  the  traps  the  one  closest  to 
the  road  was  about  183  feet  distant  there- 
from. It  is  clear,  therefore,  that  danger  to 
the  users  of  the  highway  from  shot  from  the 
guns  fired  from  the  traps  as  now  located  Is 
now  eliminated  from  the  case  as  a  ground 
for  relief,  but  that  the  traps  are  all  much 
closer  to  the  road.  There  was  ao  allegation 
of  disorder,  breaches  of  the  peace,  or  other 
improprieties  at  the  dub. 

[1,  2]  In  order  to  determine  whether  a  pub- 
lic nuisance  will  result  from  a  further  ope^ 
ation  of  the  dub  under  the  changed  condi- 
tlcms,  two  questions  of  fact  must  be  found 
as  to  the  effect  of  noises  from  the  firing  of  the 
guns:  (1)  Wliether  animals  traveling  in  the 
public  road  will  be  frightened  or  injurioiuly 
affected  thereby ;  and  (2)  whether  the  health 
or  comfort  of  tbe  community  has  been,  or 
will  be,  injuriously  affected  thereby. 

The  jurisdiction  of  the  court  in  such  cases 
Is  not  In  dispute,  and  Is  the  same  whether 
the  acts  complained  of  are  also  Indictable 
or  not,  for  the  fact  that  the  Iceeping  of  a 
nuisance  is  a  crime  does  not  deprive  the 
Court  of  Chancery  of  power  to  enjoin  the 


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WOLCOTT  V.  DOREMUS 


8C9 


nuisance.  The  same  Is  true  whether,  or  not, 
It  is  by  statute  made  a  misdemeanor  for  the 
club  to  keep  and  use  the  trapsbootlng  con- 
veniences within  300  yards  of  the  public 
road.  The  criminality  of  the  act  will  nei- 
ther give  or  oust  Jurisdiction  which  otherwise 
attaches. 

As  a  general  proposition  a  court  of  equity 
cannot  enjoin  the  commission  of  crime,  for 
Its  powers  relate  to  cItII  rights.  Where,  how- 
erer,  the  rights  of  the  public  are  Interfered 
with,  the  court  has  Jurisdiction  to  enjoin  the 
wrongful  acts.  4  Pomeroy  on  Equity  Juris- 
prudence, i  1043;  2  Morawetz  on  Private 
Corporations,  i§  921-923;  1  Wood  on  Nui- 
sances, {  14.  The  Jurisdiction  attaches  where 
the  public  health  or  safety  is  aftected,  or  the 
use  of  public  property  Interfered  with.  The 
use  made  of  their  property  by  persons  owning 
land  abutting  a  highway  may  be  a  public 
nuisance  If  the  highway  be  made  unsafe  for 
travel  thereon,  and  a  Court  of  Chancery  will 
prevent  the  Injury  though  It  cannot  punish 
the  offenlder. 

In  two  Delaware  cases  the  power  of  the 
Court  of  Chancery  to  enjoin  as  a  public  nui- 
sance an  act  Interfering  with  public  rights 
was  recognized,  though  not  applied.  Harlan, 
etc.,  Co.  V.  Posehall,  5  Del.  Ch.  435,  470; 
Gray  v.  Baynard,  5  Del.  Ch.  499.  In  Murden 
▼.  Lewes  (Del.)  96  Atl.  606,  which  concerned  a 
physical  obstruction  of  a  highway,  it  was 
said  that  "a  nuisance  is  public  when  It  affects 
rights  to  whldi  every  citizen  is  entitled," 
and  It  follows,  of  course,  that  a  nuisance 
which  affects  the  right  of  travelers  on  a  pub- 
lic highway,  or  the  health  of  the  community. 
Is  a  public  nuisance.  Joyce  on  Nuisance,  8 
5,  p.  11.  To  give  the  Court  of  Chancery  Ju- 
risdiction to  enjoin  a  public  nuisance,  the 
evidence  must  be  clear  and  convincing.  If 
the  evidence  is  conflicting  and  the  injury  to 
the  public  Is  doubtful,  the  Chancellor  should 
not  act  4  Pomeroy  on  Kqulty  Jurispru- 
dence, I  1439;  Harlan,  etc.,  Co.  v.  Paschall, 
6  Del.  Ch.  435,  470.  Each  case  presented  to 
the  court  must  me  tested  by  its  own  drcum- 
fltances.    Gray  v.  Baynard,  supra. 

[3-5]  Of  course,  noises  alone  may  consti- 
tute a  nuisance.  Whether  a  particular  kind 
or  volume  of  noise  in  a  particular  locality  Is, 
or  Is  not,  a  publio  nuisance,  depends  up<m  the 
effect  thereof  on  persons  of  normal  nerves 
and  sensibilities,  and  of  ordinary  tastes,  hab- 
its and  modes  of  living,  and  not  on  persons 
who  are  delicate  bodily  and  abnormally  ner- 
vous, or  ill.  nie  effect  produced  must  be  a 
real,  actual,  physical  discomfort  produced 
upon  a  person  of  average  sensibilities.  These 
principles  are  so  well  established  and  so  rea- 
sonable that  It  Is  not  deemed  necessary  to  cite 
authorities  on  the  point.  Indeed,  the  solici- 
tor for  the  relators  in  his  brief  does  not  dis- 
pute the  principle,  and  makes  the  test  of  hab- 
its to  be  substantial  discomfort  to  persons  of 
ordinary  sensibilities.  So,  also,  to  render 
the  highway  unsafe,  the  effect  of  noises  on 


horses,  or  other  animals  passing  along  the 
highway,  must  be  such  as  to  injure  or  fright- 
en a  horse  of  normal  temperament,  or  as  is 
frequently  held,  horses  of  "oi'dlnary  gentle- 
ness." Joyce  on  Nuisances,  {  256;  Wood  on 
Nuisances,  p.  402 ;  Wabash,  etc.,  Co.  v.  Far- 
ver.  111  Ind.  195,  12  N.  E.  296,  297,  60  Am. 
Bep.  696;  Stone  v.  Langworthy,  20  B.  I.  602, 
40  Atl.  832,  833 ;  Patton,  etc.,  Co.  v.  Drennon, 
104  Tex.  62,  133  S.  W.  871. 

The  character  of  the  noises  will  not  be  al- 
tered by  moving  the  traps  closer  to  the  pub- 
lic road.  As  to  the  character  of  the  noises 
It  was  shown  that  the  club  had  a  large  mem- 
bership, was  used  not  only  by  members  but 
also  by  visitors  who  were  made  welcome, 
and  the  traps  were  used  for  large  tourna- 
ments, which  lasted  several  days.  It  was 
claimed  for  It  that  the  club  was,  or  would  be 
made,  very  prominent  In  that  kind  of  sport, 
and  was  in  fact  the  largest  of  Its  kind  In  the 
world.  On  some  days  at  least  5,000  shots 
were  fired.  In  one  year  250,000  targets  were 
nsed  on  104  days  of  shooting.  The  effect 
of  from  10  to  25  persons  shooting  together, 
though  not  simultaneously,  was  described  as 
a  fusillade  of  explosive  noises,  as  a  bombard- 
ment,  and  the  like. 

(1)  Has  the  highway  been  rendered  unsafe 
because  noises  from  the  firing  of  the  guns 
win  frighten  or  injuriously  affect  the  horses 
and  other  animals  being  used  by  travelers  on 
it?  There  was  evWence  that  certain  horses 
passing  along  the  highway  while  trapsboot- 
lng was  in  progress  at  the  traps  as  original- 
ly arranged  were  in  fact  frightened,  and  at 
least  one  became  uncontrollable  and  ran 
away.  But  it  was  not  clear  In  all  cases  that 
horses  were  actually  struck  by  shot  and  so 
were  not  frightened  by  the  noises  only,  and 
the  fair  inference  from  the  testimony  Is  that 
they  were  hit  by  shot.  The  effect  of  moving 
the  traps  nearer  to  the  public  road  has  not 
been  tried.  Of  course  the  character  of  the 
noise  was  not  altered  by  the  change  of  loca- 
tion of  the  traps.  It  is  clear,  however,  that 
the  volume  would  be  greatly  increased  by  the 
use  of  all  the  traps  so  much  closer  to  the 
road.  An  effort  was  made  by  the  defendants 
to  show  that  the  volume  of  sound  reaching 
the  roa'd  would  be  less  than  formerly,  be- 
cause the  guns  from  the  traps  nearest  the 
road  would  be  pointed  away  from  and  not 
towards  the  road;  but  the  effort  was  sden- 
tiflcally  unsound  and  the  theory  Is  rejected. 

The  testimony,  both  theoretical  and  experi- 
mental, as  to  the  effect  of  the  peculiar  noises 
made  by  the  trapsbootlng  on  the  premises  is 
conflicting  in  some  respects.  With  respect  to 
almost  every  horse  which  has  been  struck  by 
shot,  it  Is  clear  that  an  Injury  would  be  done 
to  it.  An  animal  would  ordinarily  be  made 
what  is  called  "gun  shy,"  or  peculiarly  nerv- 
ous on  hearing  a  similar  sound  elsewhere, 
and  by  associating  the  occurrence  with  the 
place  would  be  made  especially  nervous  in  the 
same  locality.    But  this  special  objection  does 


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not  now  exist,  for  by  the  new  arrangement 
of  the  traps  shot  cannot  reach  the  public  road. 
Almost  all  of  the  cases  where  according  to 
the  testimony  horses  have  been  frightened  to 
such  an  extent  as  to  cause  them  to  get  be- 
yond control  were  those  where  the  animals 
were  struck  by  shot,  or  were  temperamental- 
ly ahnorraally  nervous. 

It  has  been  diflicult  to  determine  the  ef- 
fect of  the  nobiv.s  only  on  horses  In  the  road. 
The  opinions  of  exi)ert  and  other  witnesses 
%'ary  greatly.  One  thing  is  quite  certain ;  the 
movement  of  the  traps  closer  to  the  road  will 
increase  the  probability  of  injurious  effect  on 
animals  in  the  road.  While  the  weight  of 
testimony  of  persons  of  experience  with 
borsee  was  that  tlie  peculiar  noises  made  by 
trapshooters  on  the  premises  of  the  club 
were  such  as  to  alarm  and  frighten  normally 
tempered  horses,  and  to  that  extent  injure 
them  and  increase  the  danger  to  their  driv- 
ers, still  inasmuch  as  there  was  reliable  testi- 
mony to  the  contrary,  and  there  was  an  ab- 
sence of  testimony  that  any  normally  tem- 
pered horse  had  been  so  affected  by  the 
noises  only  during  the  i>erlod  of  five  years  in 
which  the  shooting  was  done.  It  does  not 
seem  just  or  equitable,  or  within  the  limita- 
tions of  the  discretion  of  this  court,  to  pro- 
hibit all  shooting  on  the  premises  of  the  club. 
The  evidence  of  the  state  is  not  "clear  and 
convincing,"  as  is  required  and  is  in  fact  con- 
flicting. In  case  of  serious  doubt  arising  from 
conflicting  testiuiony,  the  court  should  leave 
the  matter  to  ibe  settled  by  another  tribunal, 
where  the  fact  of  the  injury  to  the  public 
rights  could  be  ascertained  by  a  Jury. 

Inasmuch, .  then,  as  the  evidence  on  this 
point  is  really  conflicting  and  the  injury  to 
the  paUic  doubtful,  that  alone  constitutes 
here  a  proper  ground  for  withholding  the  in- 
terposition of  the  extraordinary  power  of 
this  court  asked  for. 

(2)  Has  the  health  or  comfort  of  the  com- 
munity been  really  affected  by  the  noises 
made  by  the  club  ?  Without  reviewing  the  tes- 
timony it  is  dear  that  it  was  not  shown  either 
theoretically  by  experts,  or  practically  by 
particular  Instances,  that  actual  physidal 
discomfort  was  produced  upon  persons  of 
normal  health  and  sensibilities.  The  disturb- 
ance of  the  rest  of  two  normally  healthy 
night  worl-.ers  in  the  community  does  not  just- 
ify the  relief  sought  The  testimony  of  the 
complainants  on  this  branch  of  the  case  does 
not  come  up  to  the  requirements  to  obtain  in- 
junctive relief,  and  there  were  many  witness- 
es living  in  the  vicinity  who  testified  to  the 
absence  of  material  annoyance  by  the  day 
shooting.  In  this  connection  it  should  be  not- 
ed that  an  entirely  different  problem  would 
probably  arise  In  case  the  practice  of  shooting 
at  night  was  resiuiied.  But  inasmuch  as  the 
practice  had  ceased  at  the  time  the  informa- 
tion was  filed,  it  cannot  now  be  a  ground  for 
present  relief. 


Upon  neither  of  the  two  grounds,  therefore, 
should  the  court  by  injunction  prevent  the 
use  of  the  premises  by  the  club  for  the  pur- 
pose of  shooting  at  targets  from  the  traps 
as  now  arranged. 

II]  Inasmuch,  however,  as  there  was  am- 
ple evidence  that  at  the  time  the  bill  was  fil- 
ed the  shot  fired  by  gunners  from  the  traps 
fell  into  the  public  road,  rendering  it  unsafe 
to  travelers  using  it,  and  a  public  nuisance 
was  thereby  created,  the  defendants  must  pay 
all  the  costs  of  the  cause. 

Let  a  decree  be  entered  accordingly. 


(u  Del.  Ch.  tO) 
ILLINOIS  FINANCE  CO.  v.  INTERSTATE! 

RURAL  CREDIT  ASS'N. 
(Court  of  Chancery  of  Delaware.    Aug.  7, 1917J 

1.  ASBIONHENTS  ®=>121— SdIT  BT  ASSIOMia— 

RioHT  TO  Sub  in  His  Own  Name. 
Rev.  Code  1915,  {  2627,  making  all  bonds, 
specialties,  and  notes  in  writing,  payable  to  any 
person,  or  order,  or  assigns,  assignable,  and 
authorizing  the  assignees  or  indorsees  to  soe 
thereon  in  their  own  names,  does  not  apply  to 
a  contract  giving  plaintiff's  assignor  an  exclu- 
sive agency  for  tiie  sale  of  stock  in  the  defend- 
ant company. 

2.  Assignments  «=»121— Suit  bt  Absiqnee— 
RiOHT  TO  Sub  in  His  Own  Name. 

An  assignee  of  an  unassignable  contract  can 
sue  in  equity  in  his  own  name,  but  at  law  must 
sue  in  the  name  of  his  assignor. 

3.  Equity  9=>46  — Actions  bt  Absiokbes— 
Remedt  at  Law. 

1  hough  generally  a  court  of  chancery  is  not 
ousted  of  its  jurisdiction  simply  because  conrta 
of  law  extend  their  jurisdiction,  the  jurisdictiiHi 
of  suits  by  assignees  of  unassignable  choses  in 
action,  formerly  exclusive  in  equity,  is  not  now 
recognized  as  even  concurrent  with  law  courts, 
unless  adequate  relief  is  not  afforded  at  law. 

4.  Assignments    $=>127  —  Actions    bt   As- 
signees—Jubisdiction  OF  EguiTT. 

In  an  action  for  unliquidated  damages  for 
breach  of  a  contract  giving  plaintiff's  assignor 
an  exclusive  agency;  for  the  sale  of  stock  in  the 
defendant  corporation,  though  the  bill  stated 
facts  upon  which  the  damages  could  be  assessed 
without  difficulty,  if  complainant's  theory  was 
correct  in  law,  it  was  not  sufficient  to  sustain 
the  jurisdiction  of  equity  that  complainant  sued 
as  the  assignee  of  a  chose  in  action. 

5.  Equitt   $=11— Fraud  —  Actions  by  As- 
signees—Jurisdiction OF  Equitt. 

The  relief  sought  being  damages  for  the 
breach  of  the  contract,  allegations  of  fraud  and 
collusion  between  defendant  and  complainant's 
assignor  could  not  confer  jurisdiction  oa  a  court 
of  equity. 

6.  Assignments   $s>]27  —  Actions   bt  As- 
signees—Jurisdiction OF  EQXnTY. 

That  the  bill  sought  a  declaration  of  com- 
plainant's rights  under  the  contract,  a  cancella- 
tion of  a  subsequent  assignment  by  bis  assignor, 
or  a  reinstatement  of  the  contract,  did  not  give 
jurisdiction,  as  be  did  not  need  any  such  declara- 
tion, cancellation,  or  reinstatement  in  order  to 
obtain  damages  at  law. 

7.  Discovery   ®=>3— Leoai.   Rbmxdt— Juris- 
diction OF  Equity. 

Oeneral  interrogatories,  attached  to  the  bill 
making  inquiry  as  to  what  documents  defendant 
hud  relating  to  the  matters  set  forth  in  the 
hill,  did  not  authorize  equity  to  assume  jaris- 
diction,  as  discovery  of  such  documents  conld 
bo  had  at  law,  under  Rev.  Code  1915,  |  422S, 


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lUilNOIS  FINANCE  CO.  v.  INTERSTATE  RURAL  CREDIT  ASS'N 


871 


authorising  the  court,  in  actions  at  law,  to  or- 
der the  production  of  boolca  or  writings  contain- 
ing pertuent  evidence. 

&   ASSIQNMENTS      ^=>127  —  ACTIONS     BT      AS- 
SIONEEft— JUBISDICTION   OF  EQUITY. 

A  prayer  for  an  accounting  did  not  give 
jurisdiction  to  equity,  in  the  absence  of  any 
allegation  that  it  was  a  mutual  or  complicated 
account,  or  even  that  there  were  numerous  items. 
9.  Account  ^=>14r- Actions  foe  Accoontinq 
— JuBisDicnoN  OP  Equity. 
The  jurisdiction  of  a  court  of  equity  respect- 
ing accounts,  except  between  fiduciary  and  ben- 
eficiary, or  where  discovery  is  requisite  to  the 
relief  sought,  does  not  exist,  where  the  items  are 
all  on  one  side. 

Salt  by  the  Illinois  Finance  Company 
against  the  Interstate  Rural  Credit  Associa- 
tion. On  demurrer  to  the  bill.  Demurrer 
sustained. 

Statement  of  the  Casa 

In  substance  the  bill  shows  that  E.  H. 
Watson  had  made  a  contract  with  the  de- 
fendant company,  by  which  he  was  given 
an  exclusive  agency  to  sell  shares  of  stock 
of  the  defendant  company,  collect  from  the 
purchasers  payments  for  the  stock,  pay  all 
the  expenses  of  making  the  sales,  such  as 
agents'  commissions,  office  expenses,  etc., 
and  retain  from  the  proceeds  as  his  com- 
pensation a  fixed  percentage  thereof  of  any 
sales  made  by  him,  or  otherwise  made.  It 
was  agreed  that  the  contract  could  be  as- 
signed by  Watson.  The  capital  stock  of  the 
company  of  one  million  dollars  had  not  then 
been  sold.  This  contract  was  afterwards 
assigned  to  the  complainant,  with  the  knowl- 
edge of  the  defendant  company.  Thereafter 
the  complainant  company  sold  a  large 
amount  of  stock  of  the  defendant  company, 
and  received  certain  moneys  therefor.  Later 
the  defendant  company  denied  that  the  com- 
plainant company  had  any  interest  In  the 
contract,  and  prevented  the  further  perform- 
ance by  the  complainant  of  it,  though  the 
specific  nature  of  this  claim  was  unknown  to 
the  complainant.  It  was  alleged  that  over 
$750,000  par  value  of  the  stock  of  the  de- 
fendant company  was  unsold,  and  that  the 
complainant  had  a  right  to  sell  all  of  this 
stock  and,  retain  commissions  amounting  to 
at  least  $500,000,  but  that  the  defendant 
company  deprived  the  complainant  of  the 
profits  which  would  have  accrued  to  it  un- 
der the  contract,  and  has  refused  to  pay  the 
same  to  the  complainant,  and  owed  the  com- 
plainant at  least  $50,000  more  for  sales  made 
by  the  complainant,  making  the  aggregate 
of  the  claim  of  the  complainant  against  the 
defendant  $560,000. 

The  prayers  of  the  bill  were  (1)  to  ascer- 
tain and  establish  the  rights  of  the  com- 
plainant in  and  to  the  contract;  (2)  to  can- 
cel a  supposed  subsequent  assignment  of 
the  contract  by  Watson  to  the  defendant 
company;  and  (3)  that  the  defendant  ac- 
count for  and  pay  over  to  the  complainant 
all  sums  due  under  the  contract. 


Attached  to  the  bill  were  general  inter- 
rogatories as  to  what  contracts,  assignments 
and  other  papers  relating  to  the  matters 
contained  in  the  bill  are  In  the  possession  of 
the  defendant  company  or  any  agent,  offi- 
cer or  other  person  subject  to  the  control 
of  the  company. 

To  this  bill  the  defendant  demurred  (1) 
for  want  of  Jurisdiction,  there  being  a  rem- 
edy at  law;  (2)  because  Watson  Is  a  neces- 
sary party;  and  (3)  there  is  no  ground  for 
equitable  relief. 

Marvel,  Marvel,  Wolcott  &  Layton,  of  Wil- 
mington, for  complainant  Robert  H.  Rich- 
ards and  James  I.  Boyce,  both  of  Wilming- 
ton, for  defendant 

THE  CHANCELLOR.  [1]  The  complato- 
ant  is  the  assignee  of  a  contract,  by  Its 
terms  made  assignable,  and  the  other  party 
to  the  contract  had  notice  of  the  assign- 
ment Cboses  in  action  are  not  assignable 
at  common  law,  and  the  statute  whiuU 
makes  assignable  certain  kinds  of  evidences 
of  Indebtedness  otherwise  not  assignable  and 
gives  to  the  assignee  a  right  to  sue  there- 
on In  his  own  name,  does  not  apply  to  the 
contract  under  consideration.  Revised  Code 
of  1915,  !  2627,  p.  1271. 

[2]  An  assignee  of  an  unassignable  con- 
tract can  sue  In  equity  on  the  contract  in  his 
own  name,  but  at  law  must  sue  in  the  name 
of  his  assignor.  Whether  the  provision  of 
the  contract  making  it  assignable  gave  to  the 
assignee  thereof  a  right  to  sue  thereon  at 
law  in  his  own  name  need  not  be  consid- 
ered in  view  of  the  conclusions  reached. 

[3]  Courts  of  equity  have  taken  Jurisdic- 
tion to  grant  relief  to  the  assignee  of  a 
chose  in  action,  because  he  could  there  bring 
the  suit  in  his  own  name.  It  Is  also  true 
that  in  general  the  Court  of  Chancery  la  not 
ousted  of  its  Jurisdiction  simply,  as  Lord 
Eldon  puts  it,  "because  a  court  of  law  hap- 
pens to  fall  in  love  with  the  same  or  a  simi- 
lar Jurisdiction."  An  interesting  and  ex- 
haustive statement  of  this  point  is  to  be 
found  in  1  Whitehouse  on  Equity  Practice, 
SS  21-24,  and  the  author's  conclusions  are 
supported  in  Story's  Equity  Jurisprudence,  ( 
80,  and  Pomeroy's  Equity  Jurisprudence,  {{ 
17a-18». 

The  Jurisdiction  of  suits  by  assignees  of 
unassignable  choses  in  action,  formerly  ex- 
elusive  In  equity,  is  not  now  recognized  as 
even  concurrent  with  law  courts,  unless  It 
be  shown  that  adequate  relief  is  not  afforded 
at  law.  1  Whitehouse  on  Equity  Practice, 
H  IS,  22 ;  1  Pomeroy's  Equity  Jurisprudence, 
{  281;  2  Story's  Equity  Jurisprudence,  f 
1057b;  Ontario  Bank  v.  Mumford,  2  Barb. 
Ch.  (N.  Y.)  596;  Walker  v.  Brooks,  125  Mass. 
241.  In  4  Cyc.  95,  90,  and  5  C.  J.  203,  other 
authorities  are  cited.  The  court  in  Walker 
V.  Brooks,  supra,  comments  on  a  passage  in 
an  early  edition  of   Story's  Equity  Juris- 


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101  ATLANTIC  REPORTER 


(Dd. 


prudence  at  section  1057(a)  In  opposition  to 
the  doctrine  above  stated,  and  In  the  later 
editions  a  different  statement  is  made.  See 
i  1057(b)  of  13th  Bd. 

Pomeroy  (9  Equity  Jurisprudence,  i  281)  re- 
fers to  the  practical  abandonment  by  equi- 
ty courts  of  jurisdiction  over  suits  by  the 
assignee  of  choses  In  action  as  a  striking  il- 
lustration of  the  change  which  has  taken 
place,  where  courts  of  law  have  assumed 
the  power  to  grant  a  simple,  certain  and  per- 
fectly efficient  remedy.  The  author  also 
says  this: 

"As  a  general  rule  a  court  of  equity  will  not 
now  entertain  a  suit  brought  by  the  assignee 
of  a  debt  or  of  a  chose  in  action  which  is  a 
mere  legal  demand." 

The  point  seems  to  have  been  passed  on 
by  Chancellor  Johns  In  the  case  of  Cochran 
V.  Cochran,  2  DeL  Ch.  17.  There  the  as- 
signee of  a  judgment  filed  a  bill  against  the 
heirs  at  law  of  the  defendant  In  the  Judg- 
ment to  collect  the  amount  claimed  to  be  due 
thereon,  and  the  court  held  that  the  only 
ground  urged  to  show  Jurisdiction,  the  fact 
that  there  was  no  personal  representative  of 
the  deceased  defendant,  was  not  sufficient, 
as  there  was  a  sufficient  remedy  at  law.  The 
Chancellor  evidently  found  that  as  the  legal 
remedies  were  sufficient  the  fact  that  the 
assignee  of  the  Judgment  must  use  the  name 
of  the  original  plaintiff  did  not  of  Itself  Jus- 
tify the  court  in  taking  jurisdiction,  and  the 
ground  urged  being  Inadequate,  dismissed  the 
MIL  In  the  later  case  of  State  v.  Wilming- 
ton Bridge  Co.,  2  Del.  Ch.  58,  the  same  Chan- 
cellor found  such  other  need  of  equitable  re- 
lief even  for  the  recovery  of  a  legal  demand, 
viz.,  a  right  of  a  principal  to  an  account 
from  the  agent  and  a  need  for  discovery 
from  the  defendant. 

[4]  In  the  case  under  consideration  the 
main  relief  sought  Is  damages  for  breadi  of 
a  contract  for  service,  and  the  amount  Is 
unliquidated,  though  the  bill  states  the  facts 
upon  which  an  assessment  of  the  damages 
could  be  made  without  difficulty  if  the  com- 
plainant's theory  on  the  subject  be  correct 
In  law.  Therefore,  if  no  other  ground  for 
equitable  relief  exists,  it  is  not  enough  to 
sustain  the  jurisdiction  of  the  court  that  the 
complainant  brings  his  suit  as  the  assignee 
of  a  chose  in  action.  The  complainant  rec- 
ognizing this  principle  nrges  that  this  court 
has  Juflsdlctlon  because  of  tha  discovery 
sought  and  because  an  account  is  sought. 

[5,B]  The  fraud  which  the  complainant 
says  Watson  perpetrated,  and  the  assumed 
though  not  alleged  collusion  between  Wat- 
son and  the  defendant,  cannot  confer  juris- 
diction, for  the  relief  sought  is  damages  for 
the  alleged  breach  of  the  contract.  Neither 
does  the  complainant  need  any  declaration 
of  its  rights  or  a  cancellation  of  the  second 
assigtunent  to  the  defendant,  or  a  reinstate- 
ment of  the  contract  in  order  to  obtain  dam- 
ages at  law.    Indeed,  it  is  claimed  that  be- 


cause of  the  defendant's  notice  of  the  com- 
plainant's rights  the  complainant  Is  entitled 
to  damages  notwithstanding  the  collusive 
acts  between  Watson  and  the  defendant 
company  by  way  of  re-asslgnment,  surrender, 
or  otherwise,  and  Ix>rd  Hardwick  is  cited 
as  authority,  in  Le  Neve  v.  Le  Neve,  Amb. 
430;  and  also  Pomeroy's  Equity  Jurispru- 
dence, §  501,  though  no  authority  would  seem 
necessary  to  support  such  an  obviously  tme 
proposition. 

[7]  Does  this  court  have  Jurisdiction  be- 
cause of  the  interrogatories  which  the  com- 
plainant has  attached  to  the  bill?  These  in- 
terrogatories are  very  general,  being  inquir- 
ies as  to  what  dociuuents  the  defendant  has 
relating  to  the  matters  set  forth  in  the  bllL 
Assuming  that  they  are  proper  In  form,  tbe 
complainant  may  in  an  action  at  law  for 
damages  for  breach  of  the  contract  obtain  at 
any  time  pending  the  cause  discovery  of 
such  documents  as  fully  as  it  could  In  this 
court  Revised  Code  of  1915,  {  4228.  Dis- 
covery is  not  In  this  case  a  ground  for  as- 
suming jurisdiction. 

[1,9]  An  accounting  is  prayed  for,  but 
there  is  no  allegation  that  It  is  a  mutual  or 
complicated  account,  or  even  that  there 
would  be  numerous  items  in  it  The  juris- 
diction of  a  court  of  equity  respecting  ac- 
counts, except  between  fiduciary  and  the 
beneficiary,  or  where  discovery  is  requisite 
to  the  relief  sought,  does  not  exist  where 
the  items  are  all  on  one  side.  1  Story's 
Equity  Jurisprudence,  §§  458,  459.  Indeed, 
if  the  complainant  should  sue  at  law  for 
breach  of  the  contract,  the  complainant 
would  need  no  account  of  sales  made  of 
shares  or  of  the  exi>enses  Incurred  in  so  do- 
ing, for  this  would  be  the  defendant's  proof 
to  lessen  the  amount  of  the  damages  recov- 
ered upon  proof  made  of  the  contract  the 
assignment  of  it  to  the  complainant  and  the 
refusal  of  the  defendant  to  permit  p^form- 
ance,  and  the  consequent  loss.  It  Is  not, 
therefore,  a  case  where  equity  has  Jurisdio- 
tlon  to  order  an  account 

In  view  of  the  conclusions  here  reached, 
it  Is  not  necessary  to  decide  whether  Wat- 
son was  a  necessary  party. 

For  these  several  reasons  the  Jurisdiction 
of  this  court  is  not  established,  and  the  de- 
murrer to  the  bill  should  be  sustained. 

liet  an  order  be  entered  accordingly. 


(U  DeL  Ch.  283) 
ELLIOTT  T.  JONES. 


(Court  of  Chancery  of  Delaware. 
1917.) 


May  10. 


1.  Specific  Pebfobmanoe  €=»6S— CHATntt*— 
Decree 
Specific  performance  of  a  contract  respecting 
personal  property  may  be  decreed,  althoagb  it  is 
limited  to  personal  property  peculiar  and  indi- 
vidual in  character,  such  as  a  patent,  or  which 
has  a  special  value  on  account  of  associations 
connected  therewith. 


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Del.) 


ELLIOTT  V.  JONES 


873 


2.  Specifio  Pebfobmancb  *=>79  —  Fxbsorai. 

Pbopkbty— Right  to. 
Specific  performance  of  a  contract  between 
complainant  and  defendant  to  purchase  and 
train  a  horse,  which  they  thought  would  become 
valuable  as  a  race  horse,  may  be  decreed,  where 
defendant  purchased  the  horse  and  refused  to 
allow  complainant  to  participate,  even  though 
specific  performance  of  the  partnership  agree- 
ment should  not  be  decreed. 
8.  Specific  Pebfobmance  ®=9l08  —  Prblimi- 

NABT  Injunction. 
Where  a  court  of  equity  had  jurisdiction  to 
decree  specific  performance  of  that  part  of  a  con- 
tract which  entitled  complainant  to  acquire  a 
half  interest  in  a  horse,  he  and  defendant  having 
agreed  to  purchase  the  horse  jointly,  and  defend- 
ant having  purchased  it  and  refused  _  to  allow 
complainant  to  participate,  a  preliminary  In- 
junction restraining  defendant  from  disposing  of 
the  animal  prior  to  trial  is  properly  granted, 
though  specific  perfomuince  of  some  of  the  fea- 
tures of  the  contract  could  not  be  granted. 

BUI  for  specific  perfonnanoe  by  Edward  J. 
EUllott  against  Erasmus  Jonea.  On  mle  re- 
qnirtng  defaidant  to  show  cause  why  he 
should  not  be  restrained  from  disposing  of  a 
horse  pending  final  hearing.  Preliminary  in- 
junction awarded. 

Daniel  J.  Layton,  Jr.,  of  Georgetown,  tor 
complainant  Charles  W.  Cnllen  and  Robert 
H.  Ricbards,  both  of  Georgetown,  and  James 
I.  Boyce,  of  Wilmington,  for  defendant. 

THK  CHANCELLOR.  The  complainant 
and  defendant  agreed  to  Join  In  buying  and 
training  a  particular  horse,  which  by  train- 
ing could  be  developed  into  a  valuable  race 
borae,  &usti  to  furnish  half  of  the  money  for 
purchasing  and  training  the  animal,  and  to 
share  equally  in  the  profits  of  using  and  sell- 
ing it  The  horse  was  bought  by  the  defend- 
ant who  has  possession  of  it,  and  denies  the 
rights  of  the  complainant,  and  refuses  to  ac- 
cept payment  of  the  complainant's  share  of 
the  purdiase  money.  A  decree  for  specific 
performance  is  sought  to  enforce  the  defend- 
ant to  transfer  to  the  complainant  an  undi- 
vided one-half  Interest  In  the  horse;  and  on 
allegatlona  that  the  defendant  threatens  to 
dispose  of  the  animal  prays  for  a  preHminnry 
injunction  pending  the  cause  and  a  restrain- 
ing order.  On  filing  the  bill  a  restraining  or- 
der was  granted,  and  a  rule  for  a  prelimi- 
nary injunction  issued.  The  hearing  is  <mi 
the  rule  for  preUadnary  injunction  on  bill 
and  ex  parte  affidavits. 

By  his  affidavits  the  defendant  did  not 
deny  the  material  allegations  of  the  bill,  but 
questioned  the  Jurisdiction  of  the  court. 

[t,  2J  While  a  court  of  equity  wUl  not  de- 
cree ^ledflc  performance  of  an  agreement  to 
form  a  partnership,  which  being  at  will  is 
terminable  by  either  party  immediately,  it 
wUl  secure  to  a  partner  his  Interest  in  prt^ 
erty  to  which  by  the  partn«^lp  agreement 
he  is  entitled.  Somerby  t.  Buntln,  118  Mass. 
279,  287,  19  Am.  R^.  459.  The  power  of  a 
Court  of  Chancery  to  decree  specific  per- 
formance of  contracts  respecting  personal 
property  Is  not  denied.    It  Is  limited,  bow-  i 


ever,  to  personal  proi)erty  peculiar  and  in' 
dividual  In  character,  such  as  a  patent,  or 
which  has  especial  value  on  account  of  asso- 
ciations connected  therewith,  sudi  as  b^r- 
looms,  or  where  for  some  other  cause  its  val- 
ue is  not  measurable  by  a  money  value  rea- 
sonably ascertainable  as  damages  In  an  ac- 
tion at  law.  Inadequacy  of  the  remedy  at 
law  is  the  basis  of  the  jurisdiction. 

fnie  nearest  Illustration  of  the  Jurisdiction 
Is  its  application  to  contracts  respecting 
slaves.  In  days,  happily'  long  since  past 
when  slaves  were  property,  the  question  was 
litigated  in  several  cases.  In  Virginia,  South 
Carolina,  North  Carolina,  Tennessee  and 
Mississippi  it  was  decided  that  a  court  of 
equity  had  Jurisdiction  to  enforce  specific 
performance  of  a  contract  for  the  sale  and 
delivery  of  a  specific  slave  as  distinct  from 
one  or  several  slaves  as  articles  of  commerce. 
See  the  case  of  Summers  v.  Bean,  13  Grat 
(Va.)  404  (1856),  where  the  authorities  are 
referred  to  and  discussed.  In  Georgia  the 
rule  was  not  so  broad,  and  the  peculiar  value 
of  the  slave  must  be  alleged  and  shown,  aa 
that  they  were  skilled  as  house  servants, 
blacksmiths,  carpenters,  and  the  like.  Mal- 
lery  v.  Dudley,  4  Ga.  66. 

Suppose  a  slave  possessed  mental  or  phys- 
ical powers  which  Indicated  that  with  op- 
portunity for  training  he  could  become  ac- 
complished In  some  of  the  arts  and  sciences, 
he  would  surely  have  such  peculiar  value, 
present  or  prospective,  as  that  ills  present 
value  could  not  be  ascertained,  and  a  con- 
tract respecting  him  would  have  been  spe- 
dflcally  enforced. 

By  analogy  with  these  cases  a  particular 
horse  with  unique  or  peculiar  traits  and 
Qualities  different  from  horses  in  general, 
and  which  has  promises  of  development  by 
training  so  as  to  become  valuable  for  speed 
in  racing  contests,  has  a  prospective  but 
now  unascertainable  value,  and,  therefore,  a 
contract  respecting  it  is  properly  a  subject 
for  a  decree  for  specific  performance,  because 
of  the  inadequacy  of  legal  remedies. 

in  Kane  v.  Luckman  (C.  C.)  131  Fed.  609, 
the  court  refused  to  decree  specifically  an 
agreement  to  sell  to  the  complainant  a  cer- 
tain number  of  cows  in  the  absence  of  evi- 
dence that  they  were  endowed  with  any 
unique  or  peculiar  traits  or  qualities  that 
would  render  their  value  Incapable  or  even 
difficult  of  being  ascertained  In  money,  and 
by  inference  held  that  if  these  elements  had 
existed  the  relief  would  have  been  granted. 

[3]  At  this  preliminary  stage  of  the  cause 
the  preliminary'  Injunction  to  maintain  in 
statu  quo  the  rights  of  the  parties  to  the 
pr(q>erty  in  question  should  not  be  denied, 
because  of  lack  of  Jurisdiction  of  the  sub- 
ject-matter where  the  facts  upon  which  the 
Injunction  dep^ids  are  not  denied.  At  this 
stage  of  the  case  it  need  only  be  declared 
that  under  the  allegations  of  the  bill,  if  tbey 


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101  ATLANTIC  REPOBTER 


(DeL 


be  proved,  some  part  of  the  relief  sought  may 
be  granted. 

A  preliminary  injanction  will  be  awarded 
upon  the  giving  of  an  Injunction  bond  with 
soffldait  surety. 

(U  Dal.  Cb.  34S) 

ELLIOTT  T.  JONES. 

(Court  of  Chancery  of  Delaware.    June  28, 
191T.) 

Specific  Pebfoemanck  ®=5>79  —  Dibectiow  — 
Chattels. 
Where  complainant  and  defendant,  believing 
that  an  animal  would  make  a  valuable  race  horse 
agreed  to  join  in  purchasing  it  and  to  share 
equally  the  expense  of  training  it  and  the  profits 
of  using  and  selling  il^  and  defendant  bougnt  the 
horse  but  refused  to  accept  from  complainant 
payment  of  his  share  of  the  purchase  money  or 
to  recognize  complainant's  ownership,  specific 
performance  may  be  decreed  to  the  extent  of  re- 
quiring defendant  to  convey  to  complainant  by 
bill  <^  sale  an  undivided  interest  in  the  animal, 
and  enjoining  defendant  from  disposing  of  it 
without  complainant's  consent,  though  the  court 
could  not  by  its  decree  require  the  parties  to 
eontinne  the  partnership  longer  than  they  de- 
sired. 

BUI  by  EJdward  J.  Elliott  against  Erasmus 
Jones.    Decree  for  complainant. 

BlU  for  specific  performance  of  an  agree- 
ment between  the  complainant  and  defendant 
to  pnrchase  a  particular  horse.  The  cause 
was  heard  on  bill,  answer,  testimony  of  wit- 
nesses heard  orally  by  the  Chancellor  and  ex- 
hibits. The  facts  are  sufficiently  stated  In 
the  opinion. 

Daniel  J.  Layton,  Jr.,  of  Georgetown,  for 
comi^alnant  Charles  W.  CuUen,  of  George- 
town, for  defendant 

THE  OHANOHLLOR.  This  was  a  bill  for 
the  specific  performance  of  an  agreement  be- 
tween the  cwnplalnant  and  defendant  by 
which  they  agreed  to  Join  in  buying  a  particu- 
lar horse  possessing,  as  they  believed,  quali- 
ties whldi  when  developed  would  malse  the 
animal  valuable  as  a  race  horse.  They  were 
to  share  equally  the  expense  of  training  the 
horse,  and  to  share  equally  the  profits  of  us- 
ing and  selling  It  The  defendant  bought  the 
horse  and  has  possession  of  it  and  denies  the 
rights  of  the  complainant  and  refuses  to  ac- 
cept from  the  complainant  payment  of  his 
share  of  the  purchase  money  and  the  train- 
ing, notwithstanding  tenders  by  the  complain- 
ant of  performance  on  his  part. 

A  hearing  was  had  upon  the  Mil  and  ex 
parte  affidavits  upon  the  motion  for  a  prelim- 
inary injunction  pending  the  final  hearing  of 
the  cause,  and  for  reasons  then  stated  a  pre- 
liminary injunction  was  awarded.  There- 
after the  defendant  filed  an  answer  denying 
the  agreement  as  set  forth  in  the  bill,  and 
setting  up  a  similar  contract  to  buy  two  cer- 
tain horses,  and  alleging  that  the  defendant 
bad  bought  the  other  hoi-se  and  refused  to 
recogni7.e  the  rights  ot  the  defendant  thereto, 


and  denied  the  jurisdiction  of  the  oonrt  to  en- 
force specific  performance  of  the  contract 

The  testimony  at  the  trial  showed  that  the 
contract  was  made  as  claimed  by  the  oom- 
plalnant,  and  not  as  alleged  bf  the  defend- 
ant, and  related  to  the  bay  mare  alone,  and 
the  tender  by  the  complainant  of  $125,  one- 
half  of  the  purchase  money,  and  ofTers  by  the 
complainant  to  perform  on  his  part  were  also 
proved. 

For  the  reasons  set  forth  In  the  opinioo 
heretofore  filed  when  the  preliminary  Injunc- 
tion was  awarded,  and  which  it  Is  not  neces- 
sary to  Tepe&t,  it  is  held  that  this  court  has 
Jurisdiction  to  enforce  the  contract  respecting 
the  mare. 

It  Is  clear,  also,  that  the  complainant  la  en- 
titled to  a  decree  declaring  his  rights  respect- 
ing the  mare  under  the  contract  even  though 
this  court  has  not  the  light  to  require  per- 
formance by  the  parties  of  all  of  the  terms  of 
It,  and  even  though  either  party  may  at  any 
time  terminate  the  contract. 

In  the  case  of  Satterthwalt  v.  Marshall.  4 
Del.  Ch.  337,  Marshall,  the  Inventor  of  a  pab- 
mt,  and  the  complainant  formed  a  partner- 
ship to  use  the  patent,  and  the  defendant 
agreed  to  assign  to  the  complainant  an  intei^ 
est  In  the  patent  A  bill  for  specific  pof  onn- 
ance  of  the  partnership  agreement  and  to  re- 
quire the  defendant  to  assign  to  the  comi^ain- 
ant  an  Interest  in  the  patent  was  filed,  and 
Chancellor  Bales  held  the  right  to  the  assign- 
ment was  absolute,  and  was  not  dependoit 
upon  the  subsequent  contingency  of  forming 
and  prosecuting  the  partnership;  that  tlM 
court  had  jurisdiction  to  decree  spedflc  per- 
formance of  an  agreement  for  an  assignment 
of  an  interest  In  a  patent,  because  "a  suffi- 
ciently certain  and  adequate  redress  cannot 
be  afforded  by  a  suit  at  law";  and  that 
though  the  conrt  "will  not  undertake  to  com- 
pel unwilling  parties  to  act  in  the  rtiatioo  of 
partnere,"  still  "the  inability  of  the  oonrt  to 
compel  these  parties  to  become  or  oontlnne 
copartners  under  the  articles  is  no  objection 
to  a  decree  for  the  si)eclfic  performance  of  the 
covenant  to  assign  the  shares  of  the  patent" 

The  principles  here  announced  are  appli- 
cable In  full  degree  to  the  case  under  con- 
sideration, and  justify  a  decree  for  the  oom- 
plalnant  at  least  to  such  extent  as  this  court 
went  In  the  case  dted. 

It  was  shewn  that  both  parties  believed 
that  the  mare  had  desirable  qualities,  and 
was  capable  of  development  by  training  Into 
a  race  horse  of  value,  and  that  its  value 
present  or  prospective  could  not  be  now  fair- 
ly fixed  because  of  the  xinoertainties  In  tbe 
results  of  her  training. 

In  this  case  the  court  can  do  no  more  than 
require  the  defendant  to  convey  to  the  oom- 
plainunt  by  a  Mil  of  sale  an  undivided  Inter- 
est In  said  mare,  declare  that  It  shall  be  held 
by  the  complainant  and  defendant  as  tenants 
In  common  subject  to  the  contract  so  long  ita 
It  shall  remain  in  force,  and  enjolnli^  the 


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EQUITABLE  TKUBT  CO.  t.  KENT 


875 


defendant  from  disposing  of  it  during  tbe  ex- 
istence of  the  contract  witboat  tbe  consent 
of  his  co-owner. 

This  court  cannot  require  the  parties  to 
continue  as  partners ;  or  to  continue  the  con- 
tract in  force  for  a  d^nite  or  indefinite  peri- 
od, or  for  any  longer  period  than  either  one 
desires.  Neither  can  this  court  impose  any 
commands  ooncernlng  the  duties  of  tbe  par- 
ties in  performing  the  contract  beyond  the 
declaration  of  the  general  terms  thereof. 

A  decree  will  be  entered  requiring  the  de- 
fendant to  transfer  to  the  complainant  an  un- 
divided Interest  in  the  bay  mare  to  be  there- 
after owned  by  tbe  complainant  and  defend- 
ant In  equal  shares,  subject  to  tbe  terms  of 
the  contract.  Tbe  defendant  will  also  be  en- 
Joined  from  selling,  or  otherwise  disposing  of 
tbe  mare,  so  long  as  tbe  contract  respecting 
ber  shall  continue  in  force.  Tbe  costs  will 
be  put  on  the  defendant. 

(U  DeL  Ch.  834) 

EQUITABLE  TRUST  CO.  r.  KENT  et  aL 

(CVmrt  of  Chancery   of   Delaware.     June  27, 
1917.) 

(SvHabut  ly  the  Court.) 

TBxrsra  «=»272(2)  —  Pbincipal  and  Ikcoke  — 
Rights  of  Beneficiabies. 
Where  a  testator  gave  pecuniary  legacies 
and  tbe  rasidae  to  a  trustee  in  trust  for  his  wid- 
ow and  son  for  life,  with  remainder  over  and 
gave  to  the  executor  power  to  sell  real  estate, 
and  the  ezecntor  sold  productive  and  nnprodnc- 
tive  real  and  personal  estate,  collected  income 
consisting  of  rents,  interest  and  dividends,  and 
paid  debts  and  legacies  of  the  decedent,  held,  tliat 
the  life  beneficiaries  were  entitled  to  have  equi- 
table income  for  the  first  year  after  the  death  of 
the  teatator;  that  said  income  was  to  be  ascer- 
tained by  determining  what  sum,  if  it  had  been 
invested  from  the  death  of  the  testator  for  one 
year  at  the  rate  of  4%  per  centum  per  annum 
would  with  the  interest  amount  to  the  sum  of 
money  received  by  the  trustee,  the  larger  sum 
being  principal  for  the  remainderman  and  the 
smaller  one  income  for  the  life  tenant. 

Bill  by  the  E>quitable  Trust  Company,  a 
OMporatlon,  trustee  under  the  will  of  Llnd- 
ley  €.  Kent,  deceased,  against  Roland  O. 
Kent  and  otbnv.  In  tbe  nature  of  an  inter- 
pleader, and  for  instructions.  Trustee  in- 
■tructed. 

Bill  in  tbe  natare  of  a  bill  of  interpleader 
and  for  instructions  to  a  testamentary  trus- 
tee. Tbe  case  was  beard  on  bill  and  answer, 
and  tbe  facts  appear  in  tbe  <H>lnion  of  tbe 
Ohanoellor. 

Blchard  S.  Rodney,  of  Wilmington,  for 
oon^lalnant  Hugh  M.  Morris,  of  Wilming- 
ton, for  life  beneficiaries. 

THE  CHANCHLLOR.  Undley  O.  Kent, 
wbo  died  February  12,  1916,  by  his  will,  aft- 
er making  sundry  specific  and  pecuniary  be- 
quests (all  of  which  have  been  paid),  dispos- 
ed of  bis  residuary  estate  in  four  equal 
parts.     One  part  was  given  to  a  trustee  to 


invest  tbe  same  and  pay  tbe  income  for  tbe 
support  of  a  minor  son  of  tbe  testator  until 
he  reaches  a  certain  age,  on  arrival  of  which 
be  is  entitled  to  the  principal,  with  a  provi- 
sion that  if  be  dies  before  that  time  tbe 
trust  estate  held  for  blm  is  to  be  divided  be- 
tween tbe  testator's  widow  and  remaining 
children,  and  tbe  issue  of  any  child  of  tbe 
testator  then  dead.  Another  part  was  given 
to  the  same  trustee  to  pay  tbe  Income  to  tbe 
testator's  widow  for  ber  life,  and  at  ber 
death  to  divide  tbe  principal  between  ber 
children  then  living  and  tbe  issue  of  deceas- 
ed children.  Tbe  same  corporation  was  ap- 
pointed executor  and  trustee,  and  tbe  testa- 
tor authorized  his  executor  to  sell  and  ow- 
vey  real  estate  of  tbe  testator. 

On  AprU  3,  1917,  the  executor  filed  a  first 
account  showing  payment  of  debts  and  the 
sum  remaining  for  distribution  as  residue 
$97,5S6.94,  partly  in  cash  and  partly  in  se- 
curities. Also  that  the  net  Income  received 
since  the  death  of  the  testator  to  tbe  date  ot 
tbe  account  vras  $5,470.59.  The  trustee  being 
entitled  to  two-fourths  of  tbe  residue  has  le- 
ceived  from  itself  as  executor  $48,793.47,  on 
account  thereof.  Of  this  sum  $2,735.30  was 
income  which  had  accrued  prior  to  tbe  date 
of  the  account,  and  Included  rent,  Interest 
and  dividends.  In  other  words,  the  trustee 
has  received  as  part  of  the  residuary  devise 
and  bequest  a  sum  of  money  which  includes 
what  Is  clearly  principal  and  what  is  clearly 
income  when  and  as  received  by  tbe  exec- 
utor. 

It  further  appears  by  tbe  account  that  tbe 
executor  pursuant  to  testamentary  authority 
sold  from  time  to  time  real  estate  of  the  tes- 
tator and  received  $17,325  therefrom,  and  no 
Income  was  received  by  the  executor  thereon. 
This  stmt  was  included  in  the  sum  of  $97,- 
586.91,  from  which  the  sum  of  $48,793.47  was 
paid  to  tbe  trustee  as  above  stated,  so  that 
of  that  latter  sum  $8,662.50,  being  two- 
fourths  of  $17,325,  was  proceeds  of  sale  of 
real  estate.  The  proceeds  of  sale  of  the  real 
estate  was  mingled  by  the  executor  with  tbe 
personal  estate,  and  debts  and  legacies  were 
paid  from  tbe  general  fund.  The  sum  re- 
ceived by  the  trustee  was  part  of  this  com- 
mingled fund.  Part  of  the  real  estate  and 
part  of  tbe  personal  property  have  not  yet 
been  converted  into  money  by  the  executor. 
Tbe  testator  had  three  children,  and  they 
and  his  wife  sorvlved  him  and  are  stUl 
living. 

A  bill  bas  been  filed  by  tbe  trustee,  the  Bkt- 
ultable  Trust  Company,  for  instructions,  tbe 
widow  individually  and  as  guardian  for  tbe 
minor  son  of  the  testator,  and  the  other  two 
children  of  the  testator  (wbo  are  adults)  be- 
ing parties  defendant  All  of  the  defendantsi 
have  appeared,  and  admitted  tbe  allegations 
of  the  bill. 

It  appears,  therefor,  that  all  the  persons 
interested  both  presently  and  in  remainder 


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876 


101  ATIANTIC  REPORTEE 


(Del. 


are  parties,  unless  Ihe  minor  son  dies  before 
the  age  fixed  by  the  will  and  one  or  lx>th  of 
the  other  children  of  the  testator  also  die  be- 
fore that  time  leaN-lng  Issue,  whereby  the  is- 
sue (perhaps  now  unborn)  would  be  substitut- 
ed for  parents.  But  in  any  event  those  now 
Interested,  including  those  with  vested  re- 
mainders in  the  shares  held  in  trust  for  the 
widow  and  minor  son,  are  parties,  and  the 
trustee  is  now  entitled  to  instructions. 

The  questions  which  arise  and  were  dis- 
cussed at  the  argument  were  these:  (1)  Is 
the  sum  of  $2,735.30  received  by  the  trustee 
as  part  of  the  larger  sum,  and  which  repre- 
sents tnoome  when  and  as  received  by  the  ex- 
ecutor, to  be  treated  by  the  trustee  as  prin- 
cipal or  income,  and  If  Income  whether  all  or 
part  only  of  It  be  paid  to  the  beneficiaries 
as  income?  Or,  more  succinctly,  are  the  life 
beneficiaries  entitled  to  the  money  received 
by  the  executor  as  Income  on  the  dear  resi- 
due computed  from  the  time  of  the  death  of 
the  testator  as  ascertainable  by  the  accounts 
of  the  executor?  (2)  Is  the  whole  sum  re- 
ceived by  the  trustee,  which  Includes  what 
was  principal  at  the  testator's  death  and  in- 
come received  thereon  since,  to  be  treated  as 
principal?  (3)  Are  the  life  beneficiaries  enti- 
tled to  equitable.  Instead  of  actual  Income, 
that  is  to  say,  to  have  Income  sudi  sum  as  at 
a  fixed  rate  of  Interest  would  have  been  pro- 
duced had  the  total  fund  received  been  In- 
vested at  that  rate  from  the  death  of  the 
testator? 

When  by  will  successive  Interests  are  giv- 
en, whether  by  direct  gifts  or  to  trustees  for 
beneficiaries  in  succession,  the  problem  as  to 
the  right  to  the  first  year's  Income  arises  In 
the  absence  of  testamentary  intention.  When 
the  gift  relates  to  specific  property,  real  or 
personal,  the  product  or  Interest  therefrom 
follows  the  corpus  from  the  death  of  the  tes- 
tator and  belongs  to  the  life  tenant:  provid- 
ed, of  course,  the  property  Is  not  needed  in  a 
proper  case  for  the  payment  of  debts  of  the 
decedent  Custls  v.  Potter,  1  Houst.  382,  68 
Am.  Dec.  422;  Klnmouth  r.  Brlgham,  87 
Mass.  270. 

Unquestionably  the  established  rule  in  Del- 
aware is  that  a  gift  of  a  residuary  estate,  or 
a  part  thereof,  in  trust  for  the  widow  or 
ciilld  of  the  testator  for  life,  carries  income 
from  the  death  of  the  testator,  and  not  from 
a  year  thereafter.  The  Court  of  EJrrors  and 
Appeals,  in  1857,  In  the  case  of  Cnstis  v.  Pot- 
ter's Adm'r,  1  Houst.  382,  68  Am.  Dec.  422, 
where  general  pecuniary  legacies  had  l>een 
^ven  to  nephews  and  nieces  of  the  testator 
payable  at  certain  ages,  and  whldi  ages  they 
attained  more  than  a  year  after  the  death 
of  the  testator,  decided  that  the  legatees 
were  not  entitled  to  Interest  from  the  death 
of  the  testator,  or  until  they  had  attained 
the  fixed  age.  The  court  said  a  different 
rule  prevailed  when  the  legatee  was  a  child 
of  the  testator;  or  was  a  perscm  to  whom 
the  testator  stood  In  loco  parentis,  and  no 
ttther  provision  for  it  was  made.     It  was 


also  declared  that  specific  bequests,  or  be- 
quests of  the  corpus  carried  their  product  or 
Interest  from  the  testator's  death,  unless  a 
testamentary  Intention  to  the  contrary  be 
shown.  The  court  also  referred  to  gifts  of 
the  residue  as  a  further  exception  to  the 
general  rule  that  general  legacies  draw  in- 
terest from  the  time  they  are  payable;  but  It 
was  an  obiter  dictum  in  this  case. 

In  the  case  of  FUnn  v.  Fllnn,  4  Del.  Oh.  44 
(1868),  a  share  of  the  residuary  estate  was 
given  to  the  testator's  children  to  be  held  by 
the  executor  at  five  per  centum  per  annum, 
and  "to  be  paid  to  them  as  they  severally  ar- 
rive at  twenty-one  years,"  with  limitation 
over  as  to  shares  of  any  child  who  did  not  at- 
tain that  age.  No  other  provlsicm  was  made 
in  the  wUI  for  the  children  who  were  In- 
fants. Qiancellor  Bates,  after  stating  the  es- 
tablished rule  that  legacies  to  infant  chil- 
dren carry  interest  from  the  death  of  the  tes- 
tator and  not  from  a  year  after,  allowed  out 
of  the  annual  interest  on  their  respective 
shares  a  sum  deemed  suflldent  for  the  sup- 
port of  the  legatees.  Custls  t.  Potter  was 
not  cited. 

Chancellor  Nicholson  In  Baker  ▼.  Fooks,  8 
Del.  at.  84,  67  Atl.  969  (1896),  dealt  with  the 
case  where  a  sum  of  money  was  bequeathed 
to  a  trustee  to  be  invested  and  the  Income 
paid  to  the  widow  of  the  testator  for  life 
and  at  her  death  to  become  part  <tf  the  resid- 
uary estate  of  the  testator.  The  trustee 
filed  a  bill  for  Instructiius,  alleging  that 
he  had  by  authority  of  the  Chancellor  tak- 
en certain  investment  securities  owned  by 
the  testator  at  his  death  and  bad  received 
interest  and  Income  thereon,  the  amount 
thereof  varying  from  year  to  year.  A  decree 
was  made  giving  to  the  widow  for  life  inter- 
est at  six  per  cent,  on  the  legacy  to  be  com- 
puted from  the  death  of  the  testator,  but 
there  was  in  the  report  of  the  case  no  opin- 
ion, and  therefore  the  reasons  do  not  appear. 

In  the  case  of  Equitable,  etc.,  Oo.  v.  Mo- 
Curdy  (1916)  98  Atl.  220,  there  was  a  gift 
of  part  of  the  residuary  estate  to  a  trustee 
to  Invest  and  pay  the  income  to  the  daughter 
of  the  testatrix  for  life,  and  the  trustee  re- 
ceived from  the  executor  In  payment  of  ttie 
gift  Investment  securities  held  by  the  tes- 
tatrix at  her  death,  and  also  income  whlcb 
had  accrued  on  these  specific  securities  since 
the  death  of  the  testatrix.  This  accrued  in- 
come was  awarded   to  the  life  beneficiary. 

In  Delaware  the  cases  seem  to  limit  the  ap- 
plication of  the  rule  to  the  widow  or  chil- 
dren of  the  donor,  or  to  some  one  as  to  whom 
he  stood  in  loco  parentis,  though  as  stated 
In  Equitable,  etc.,  Ooi  v.  McCurdy,  the  rule 
has  been  elsewhere  applied  to  coses  where 
the  relationship  did  not  exist  The  prearaat 
case  was  a  gift  of  residue  in  trust  for  a 
daughter  of  the  testator,  so  it  la  not  here  nee- 
essary  to  extend  the  rule,  though  it  secius 
clearly  to  go  beyond  children,  or  those  to 
whom  the  testator  stood  in  loco  parentis,  and 


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EQUITABLE  TRUST  CO.  v,  KENT 


877 


applies  to  all  gifts  of  residue  to  one  tor  life 
with  remainder  over.  Green  v.  Green,  30  N. 
J.  Eq.  451. 

When  the  subject-matter  of  the  gift  is  resr 
idue,  or  an  aliquot  part  of  It,  then  it  must 
be  determined  what  share  of  it  belongs  to 
the  life  tenant  and  what  to  the  remainder- 
man. The  executor  who  is  given  a  year  in 
which  to  settle  the  estate  receives  the  assets 
of  the  decedent  In  various  forma  When 
and  as  received  some  of  the  estate  is  clearly 
principal  and  some  clearly  income.  In  gen- 
eral all  of  It,  after  it  comes  into  Ids  hands 
is  principal.  From  the  moneys  so  received 
he  pays  debts,  administration  expenses,  pe- 
cuniary legacies,  if  any,  and  has  a  balance 
which  constitutes  the  residue.  He  may,  or 
may  not  have  so  kept  his  account  as  to  be 
able  to  show  what  part  of  the  sum  remaining 
was  income  when  and  as  it  came  to  him.  It 
Is  manifestly  impossible  to  say  that  the  debts 
and  administration  expmses  were  paid  out 
«f  what  was  principal  and  what  was  in- 
cmne,  for  they  were  commingled,  and  equally 
'difficult  to  show  whether  tbey  were  paid  from 
the  personalty  of  the  decedent,  or  from  the 
proceeds  of  the  sale  of  the  real  estate.  Even 
if  the  executor  has  so  k^t  his  account  that 
he  can  say  what  portion  of  the  residuary 
balance  was  income  when  be  received  it, 
there  is  always  Bome  part  of  the  assets  of 
the  testator  which  did  not  yield  Income.  It 
is  manifestly  difficult,  therefore,  even  in  the 
ordinary  case  to  adjust  the  rights  of  the  life 
tenant  and  remaindermen  by  determining 
what  was  actual  income,  when  and  as  receiv- 
ed. There  are  cases  where  it  is  inequitable 
or  Impossible  to  follow  that  principle,  viz. : 
Where  the  testator  had  money  Invested  in 
wasting  securities,  or  in  bott(Hnry  bonds 
where  the  principal  and  income  are  paid  as 
one  sum,  and  other  like  cases.  There  may 
be  delays  beyond  the  year  in  conversion  of 
assets,  or  for  other  reasons  the  executor  may 
not  at  the  end  of  the  year  be  able  to  pay  to 
the  trustee  the  residuary  estate.  If  there  be 
found  some  equitable  general  rule  to  give 
to  the  life  tenant  what  Is  equitably  to  be  con- 
sidered income  from  the  death  of  the  tes- 
tator without  regard  to  actual  income,  it 
should  be  adopted. 

In  Hill  on  Trustees,  the  learned  author 
says  there  are  four  possible  solutions,  and 
that  the  decisions  of  very  eminent  Judges 
may  be  urged  in  support  of  each.  His  classl- 
flcations,  omitting  his  citations,  are  these: 
(1)  The  tenant  for  life  may  be  entitled  to 
nothing  until  the  expiration  of  the  twelve 
months  from  the  testator's  death,  the  in- 
come In  the  meantime  being  added  to  and 
forms  a  part  of  the  capital  of  the  residue. 
<2)  ^nie  beneficiary  for  life  during  the  first 
year  after  the  testator's  death  will  take  the 
income  of  such  parts  of  the  estate  as  are 
properly  invested  at  the  testator's  death,  or 
as  may  become  so  invested  during  that  year. 
&)  The  life  beneficiary  may  be  entitled  to 


the  income  arising  from  the  property  in  its 
existing  state  during  the  first  year  from  the 
testator's  death.  (4)  The  life  tenant  t»'111 
take,  not  the  interest  actually  arising  from 
the  property  during  the  first  year  after  the 
testator's  death,  but  the  amount  of  the  inter- 
est at  three  per  cent,  on  such  sum  as  would 
have  been  produced  at  the  end  of  the  year  by 
the  conversion  of  the  property,  1.  e.  add  the 
income  actually  received  to  the  principal  re- 
ceived, and  divide  the  aggregate  by  103,  and 
so  obtain  equitable  in  the  place  of  actual 
interest  or  Income.  The  last-mentioned  so- 
lution Is  that  which  according  to  the  learned 
author  has  the  greatest  authority  in  its  fa- 
vor. 

It  has  been  held  that  when  it  Is  shown 
what  portion  of  the  residue  which  came  to 
the  trustee  was  received  by  the  executor  as 
income  and  what  as  principal,  then  the  rights 
of  the  life  tenant  and  remainderman  are' 
thereby  fixed,. the  former  taking  that  ■vrtiich 
was  Income  when  and  as  received  by  the 
executor  and  the  remainder  was  principal 
to  be  held  for  further  income  and  ultimately 
for  the  remainderman.  Lovering  v.  Minot, 
68  Mass.  151,  156;  Sargent  v.  Sargent,  103 
Mass.  297;  Ayer  v.  Ayer,  128  Masa  575,  597; 
Gushing  V.  Barrel!,  137  Mass.  25;  Green  v. 
Green,  30  N.  J.  Eq.  451;  Hewitt  v.  Morris, 
1  Turner  &  RusseU,  241 ;  Allhausen  v.  Whlt- 
tell,  4  Eq.  295;  Wethered  v.  Safety,  etc.,  CJo., 
79  Md.  153,  28  AU.  812  (where  the  couit  c<Mt- 
sidered  that  debts  of  the  testator  as  hav- 
ing been  paid  from  capital  and  not  income). 

Where  it  appears  that  the  trustee  received 
the  proceeds  of  unproductive  property  an  ap- 
portionment is  made  between  the  life  tenant 
and  remainderman  so  that  the  former  re- 
ceived interest  at  the  usual  rate  obtained 
from  trust  investments  from  the  death  of  the 
testator.  This  is  done  by  ascertaining  what 
sum,  if  it  had  been  Invested  from  the  death 
of  the  testator  at  an  arbitrarily  fixed  rate, 
to  the  time  of  payment  to  the  trustees,  would 
with  Interest  amount  to  the  sum  so  received 
by.  the  trustee,  and  treat  that  sum  as  prin- 
cipal to  be  thereafter  held  by  the  trustee  for 
the  benefit  of  the  life  tenant  and  then  for  the 
remainderman,  and  give  the  balance  to  the 
life  tenant  as  income.  Allhausen  v.  Whittell, 
4  Eq.  295 ;  Lawrence  v.  Llttlefleld,  215  N.  Y. 
561,  109  N.  E.  611  (1915) ;  Edwards  v.  Ed- 
wards, 183  Mass.  581,  67  N.  E.  658. 

The  same  principle  was  applied  where  the 
testator  had  an  Interest  in  a  partnership  and 
the  executor  received  therefrom  profits  In  the 
settlement  of  the  partnership  affairs.  Kin- 
mouth  V.  Brigham,  87  Mass.  (5  Allen)  270; 
Westcott  V.  Nickerson,  120  Mass.  410. 

The  simplest,  most  practicable  and  equita- 
ble rule  is  that  which  Hill  on  Trustees  says 
has  the  weightiest  authority,  and  which  is 
adopted  in  Lorlng's  Trustees'  Handbook  at 
page  122  (3d  Ed.),  viz.  equitable  instead  of 
actual  Income — that  is  to  say,  the  sum  which 
the  life  beneficiary  would  have  received  at 
the  end  of  a  year  after  the  death  of  the  tes- 


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101  ATIANTIC  BEPOaTBB 


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tator  If  the  trust  fund  had  been  invested  at 
a  certain  selected  rate  of  interest  from  the 
death  of  the  testator.  To  illustrate,  If  the 
fund  was  $10,000  and  the  interest  rate  be 
fixed  at  five  per  cent,  then  If  that  sum  be 
divided  by  105  the  result,  $9,523.80  will  rep- 
resent principal  and  the  balance,  $476.20  will 
represent  income  for  one  year.  This  latter 
sum  being  five  per  cent,  of  the  former.  This 
method  is  the  simplest  because  It  is  based  on 
simple  terms  in  the  calculation  thereof;  Is 
not  dependent  on  the  classifications  of  the  es- 
tate by  the  executor;  and  disregards  the 
sources  from  which  the  fund  is  produced.  It 
is  equitable  because  it  Is  applicable  to  produc- 
tive and  improduetlve  assets;  Includes  pro- 
ceeds of  real  estate  as  well  as  personalty; 
disregards  proportions  of  productivity  of  in- 
come; includes  all  kinds  of  income  such  as 
rents,  interest,  dividends  and  accretions: 
and,  which  is  highly  important,  gives  to  the 
life  benefldary  income  for  the  first  year  un- 
affected by  the  delays  of  executors  in  ad- 
ministering the  estate  of  the  decedent,  or  in 
paying  over  and  delivering  the  trust  fund. 

It  would  be  applicable  whether  there  was, 
or  was  not,  an  equitable  conversion  of  realty 
Into  personalty.  It  should  also  be  applied 
In  cases  where  the  trustee  by  authority  of 
the  Court  of  Chancery  takes  In  specie  in  pay- 
ment of  a  legacy  property  of  the  decedent, 
and  in  this  respect  the  principle  adopted  with 
reB];>ect  to  the  Pennypa(^er  will  in  the  case 
of  £}qultable,  etc.,  Co.  v.  McCurdy,  above  cit- 
ed, should  not  be  followed. 

The  rate  of  Interest  should  be  such  as  a 
trustee  by  careful,  conservative  Investment 
in  suitable  trust  Investments  could  reason- 
ably realize  as  Interest  or  income,  and  should 
not  be  the  legal  rate  of  Interest  fixed  by  law 
as  between  debtor  and  creditor.  Edwards  v. 
Edwards,  183  Mass.  581,  67  N.  B.  858 ;  Law- 
rence V.  Uttlefleld,  215  N.  Y.  561,  109  N.  E. 
611  (1915).  In  England  the  rate  was  In 
early  times  based  on  the  Income  from  govern- 
ment securities,  and  was  about  three  per 
cent  In  this  country  and  community,  and 
at  this  time,  a  large  rate  Is  so  obtained  and  a 
rate  of  four  and  one-half  per  cent  Is,  In  my 
opinion,  a  just  and  fair  rate.  When  a  clear 
testamentary  intention  to  the  contrary  ap- 
pears, the  rule  Is  Inapplicable.  It  is  equally 
inapplicable,  as  above  stated,  to  specific  gifts 
for  successive  beneficiaries.  The  rule  Is  ap- 
plicable to  a  gift  to  trustees  for  successive 
holders  as  well  as  to  direct  gifts  of  successive 
Interests.  Green  v.  Green,  30  N.  J.  Eq.  451 ; 
Wethered  v.  Safety,  etc.,  Co.,  79  Md.  153, 
28  Atl.  812. 

This  principle  will  be  applied  here,  even 
though  in  this  particular  case  it  Is  accurate- 
ly ascertainable  from  the  accounts  as  kept 
by  the  executor  of  Lindley  C.  Kent  what  por- 
tion of  the  trust  fund  now  payable  to  the 
trustee  was  income  when  and  as  received  by 
the  executor. 


Applying  the  rule  to  the  facts  here,  it  ap- 
pears that  the  trustee  has  received  $48,793.47 
on  account  of  the  residue  one-half  of  whlcb 
is  $24396.73  is  held  In  trust  for  the  widow 
for  life  and  the  other  half  for  the  son  until 
he  reaches  a  certain  age.  By  dividing  $24,- 
396.73  by  1.045,  the  result  $23,346.15  consti- 
tutes the  principal  of  the  trust  estate,  wbldi 
is  hereafter  to  be  held  in  trust  for  Rosamond 
C.  Kent  the  widow  of  the  testator ;  and  the 
balance,  $1,050.58,  is  income  for  the  flrsft 
year  from  the  death  of  the  testator,  and  Is 
payable  to  said  widow.  The  same  applies  to 
the  other  sum  of  $24,396.78  for  the  benefit  of 
Lindley  C.  Kent  Jr.,  the  son  of  the  testatM'. 

Let  a  decree  lie  entered  accordingly. 


(U  D«L  Cb.  346) 

BUPP  V.  KLEITZ  et  aL 

(Court  of  Chancery  of  Delaware.    Jane  80^ 
1917.) 

1.  Justices  of  tbb  Pback  «=>136(4)  —  Br- 
JOINIRS    EXXCUTION— Rkmxdt    bt   Gebtio- 


As  the  writ  of  certiorari  does  not  under  Rev. 
Code  1915,  {  4083,  effect  a  stay  of  proceedings, 
such  writ  does  not,  where  irrefrularities  in  a 
judgment  rendered  by  a  justice  did  not  appear 
on  the  face  of  the  record,  afford  an  adequate 
remedy  at  law,  preventing  a  proceeding  to  en- 
join enforcement  of  the  judgment,  even  though 
the  irregularities  might  have  been  brongbt  into 
the  record  bv  some  auxiliary  proceeding. 

2.  Justices  of  the  Peace  «=3i35(4)  —  Bhf- 
JoiNiNQ  Execution — Qbounos. 

The  omission  of  the  return  day  from  a  writ 
of  summons  issued  by  a  justice  of  the  peace  is 
no  ground  for  enjoining  the  enforcement  of  the 
judgment  rendered  by  the  justice,  though  the 
writ  was  irregular,  for  the  purpose  of  the  writ 
of  summons  is  to  give  notice  to  the  defendant 
of  the  time  and  place  of  hearing,  and  defendant 
had  such  notice;  the  date  being  filled  in  by  th« 
constable  at  the  time  of  the  service  of  the  writ 

3.  Justices  of  the  Peace  «=9l35(4)  —  Bsr- 
JOININO  EXEonxioN— Obounds. 

As  Rev.  Code  1915,  S  40O0,  allowing  a  de- 
fendant in  justice  court  one  adjournment  does 
not  apply  to  the  summary  remedy  given  land- 
lords against  holding  over  tenants,  and  section 
4075  merely  declares  that  a  justice  may  grant 
an  adjournment,  the  refusal  of  a  justice  to  grant 
defendant  in  summary  proceedings  an  adjourn- 
ment does  not  warrant  the  enjoining  of  hia  judg- 
ment 

4.  Justices  of  the  Peace  «a>135(4)  —  Bbv- 
joiNiso  Execution— Q-BOURDS. 

That  the  constable,  after  serving  one  writ 
of  summons,  served  another  writ  specifying  a 
later  return  day,  does  not  warrant  the  enjoining 
of  a  judgment  of  a  justice  based  on  the  first  writ 
upon  the  ground  of  confusion  or  mistake,  for 
service  of  the  second  did  not  relieve  defendant 
of  the  duty  to  appear  according  to  the  com- 
mand of  the  first 

Bill  by  Oirtls  G.  Bupp  against  Bernard 
Kleitz  and  others.  On  rule  to  show  cause 
why  preliminary  injunction  should  be  award- 
ed.   Rule  discharged. 

Robert  Adair,  of  WUmingtcHi,  for  com- 
plainant William  T.  Lynam,  of  Wilmington, 
for  defendants. 


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JOHN  W.  COONEY  CO.  y.  ARUINaxOH  HOTEL  00. 


879 


TKB  CBANOELUXBL  The  complainant 
relies  on  several  informalities  to  entitle  him 
to  an  injunction  to  restrain  further  proceed- 
ings on  the  Judgment  against  him  obtained 
before  the  Justice  of  the  peace  in  the  action 
bronght  by  the  defendants,  Bernard  and 
George  Eleitz,  to  recover  possession  as  a 
holding-over  tenant.  (1)  The  writ  of  sum- 
mons when  and  as  Issued  by  the  justice  of 
the  peace  did  not  contain  a  statement  of  the 
return  day  thereof,  the  date  and  hour,  but 
not  the  day  of  the  month  being  filled  In  by 
the  constable  at  the  time  of  the  service 
thereof.  (2)  The  justice  of  the  peace  refused 
to  grant  an  adjournment  (m  the  day  and  at 
the  hour  fixed  by  the  summons.  (3)  On  the 
day  following  the  service  of  the  summons 
another  summons  for  the  same  cause  of  ac- 
tion was  served  on  the  complainant,  return- 
able at  a  later  date  than  the  first  summons, 
the  ccntstable  stating  that  there  was  an  ir- 
regularity in  the  prior  writ  as  the  reason  for 
issuing  the  later  one. 

There  was  no  dispute  as  to  the  foregoing 
facts  at  the  hearing  for  a  preliminary  in- 
junction. The  complainant  urged  confusion, 
sorprlse  and  legal  fraud  arising  from  the 
duplication  of  writs  of  summons  and  pro- 
ceedings, and  that  he  had  a  legal  defense  to 
the  action  In  that  by  a  written  agreement 
between  him  and  the  defendants  be  was  enti- 
tled to  possession  as  tenant  for  a  term  which 
had  not  expired. 

It  appeared  by  the  bill  that  two  days  be- 
fore the  date  fixed  In  the  first  summons  the 
solicitor  for  the  complainant,  who  appeared 
for  the  complainant  at  the  trial,  had  receiv- 
ed from  the  attorney  for  the  defendants  In 
this  cause,  and  who  appeared  for  them  at 
the  trial  before  the  Justice  of  the  peace,  no- 
tice that  he  would  insist  upon  trial  at  the 
date  and  hour  fixed  in  the  first  summons. 

[1]  None  of  the  matters  above  referred  to 
appear  In  the  record  of  the  justice  of  the 
peace,  which  is  apparently  regular  in  show- 
ing jurisdiction  of  parties  and  the  cause,  ap- 
pearance of  the  parties,  a  jury  trial,  verdict 
and  judgment  Therefore  the  alleged  Irreg- 
ularities, If  fatal,  are  not  curable  by  certio- 
rari And  even  if  they  could  be  gotten  Into 
the  record  by  some  aaxiliary  proceeding, 
still  by  the  statute  the  Issue  of  the  writ  of 
certiorari  does  not  effect  a  stay  of  proceed- 
ings. Revised  Code  of  1915,  i  4063.  The 
proceeding  against  the  tenant  Is  statutory 
and  summary,  and  no  appeal  is  allowed. 
The  <H»ly  effective  remedy  available  for  the 
complainant,  therefore,  is  In  this  court,  tf 
there  be  any  here. 

It  is  not  necessary  to  consider  In  this  case 
a  question  not  discussed,  viz.  whether  or  not 
this  court  has  jurisdicti<Hi  to  restrain  a  pro- 
ceeding taken  by  a  landlord  against-  a  hold- 
ing-over tenant,  for  upon  the  undisputed 
facts  the  complainant  Is  not  entitled  to  re- 
lief if  the  court  has  jurisdiction.  In  Jlurvel 
v.  Ortlip,  3  Del.  Ch.  9,  the  question  of  Juris- 


diction was  raised,  but  not  decided,  and  in 
Olongh  V.  Cook,  87  Atl.  1017,  this  court  re- 
cently enjoined  the  further  prosecution  of 
such  a  proceeding  because  this  court  had 
theretofore  taken  jurisdiction  of  the  mat- 
ter by  a  bill  filed  by  the  tenant  against  the 
landlord  to  enforce  a  covenant  for  renewal 
of  the  lease. 

[2]  The  omission  from  the  writ  of  the  re- 
turn day  when  issued  by  the  Justice  of  the 
peace  Is  not  a  suffldcnt  ground  here  to  enjoin 
the  proceedings  before  the  justice  of  the 
peace.  However  irregular  it  may  have  been 
in  this  respect  technically  (as  to  which  no 
opinion  is  expressed)  the  purpose  of  the  writ 
was  to  give  notice  to  the  party  defendant  of 
the  time  and  place  of  the  hearing,  and  this 
notice  the  defendant  had. 

[3]  There  was  no  ground  for  equitable  re- 
lief based  on  the  refusal  to  grant  an  adjourn- 
ment. By  the  statute  the  justice  of  the 
peace  "may"  grant  an  adjournment.  Revis- 
ed Code  of  1915,  §  4075.  His  exercise  of  dis- 
cretion if  reviewable  at  all  In  this  court,  Is 
not  a  ground  for  relief  in  this  case  where  the 
defendant  knew  that  his  landlord  wonld  In- 
sist on  hearing  at  the  particular  time.  The 
defendant  was  not  entitled  to  an  adjourn- 
ment as  of  course.  The  provision  of  the  gen- 
eral statute  (Revised  Code  of  1915,  {  4009) 
as  to  the  Jurisdiction  and  procedure  of  the 
Justice  of  the  peace  allowing  to  the  defend- 
ant one  adjournment  does  not  apply  to  the 
summary  remedy  given  to  landlords  against 
holding-over  tenants,  the  latter  being  enact- 
ed as  a  separate  chapter  with  different  pro- 
cedure and  with  a  distinct  puri)ose  to  avoid 
all  delays  of  administration. 

[4]  Neither  did  the  Issuance  of  the  second 
summons  properly  lead  to  confusion  or  mis- 
take, nor  did  it  relieve  the  tenant  of  the  duty 
to  appear  according  to  the  command  of  the 
first  summons. 

In  considering  all  these  matters  It  has 
been  noted  that  the  complainant  had  from  the 
start  of  the  case  the  benefit  of  legal  advice. 

It  being  clear  that  no  cause  was  shown 
why  the  preliminary  Injunction  should  b< 
awarded,  the  rule  Is  discharged,  and  my 
views  on  the  points  raised  haVe  been  stated 
because  of  the  consequences  to  the  complain- 
ant of  a  denial  of  Injunctive  relief  at  this 
dme^ 

Let  an  order  be  entered  accordlhgly. 


(U  Dal.  Ch.  286) 
JOHN  W.  COONEY  CO.  v.  ARLINGTON 
HOTEL  CO. 

(Court  of  Chancery  of  Delaware.     May  25, 

1017.     Supplemental  Opinion  as  to  Form 

of  Decree,  Aug.  4,  1917.) 

1.  COBPOBATIONS  ^=»502(2) — Stockroldbbs— 
Liability— Proceedings  to  Enfobce. 
General  Corporation  Law  (22  Del.  Laws,  c. 
394),  §  20,  provides  that  when  the  assets  of  a 
corporation  are  insufficient  to  pay  its  creditors 
and  the  whole  capital  stock  has  not  been  paid  in, 


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101  ATLAigriC  BEPORTEK 


(Dd. 


each  stockholder  shall  be  bonnd  to  pay  on  each 
share  held  by  him  the  sum  necessary  to  com- 
plete the  amount  of  the  par  value  of  each  share, 
or  such  proportion  as  shall  be  required  to  sat- 
isfy the  debts  of  the  company,  and  further  pro- 
Tides  that  the  sum  unpaid  may  be  recovered  as 
provided  in  section  49,  after  an  execution  has 
been  returned  nnsatistied,  as  provided  for  In 
section  51.  Section  21  authorizes  the  corpora- 
tion to  obtain  subscri-ptions  to  stock  when  the 
whole  capital  has  not  been  paid  or  subscribed, 
and  section  22  provides  for  enforcing  the  pay- 
ment of  subscriptions  by  the  directors.  Section 
49  provides  that  when  the  stockholders  of  a  cor- 
poration are  liable  to  pay  the  debts  oi.  the  com- 
gany,  any  person  to  whom  they  are  liable  may 
ave  an  action  at  law  against  any  one  or  more 
of  the  stockholders,  or  may  have  his  remedy  by 
bill  in  chancery,  while  section  51  declares  that 
no  suit  may  be  brought  against  a  stockholder 
for  any  debt  of  the  corporation  until  judgment 
be  obtained  against  such  corporation  and  execu- 
tion returned  unsatisfied.  On  bill  bv  a  creditor, 
a  corporation  was  adjudicated  insolvent  and  a 
receiver  appointed.  Held,  that  though  some  of 
the  provisions  for  enforcing  the  liability  of 
stockholders  on  unpaid  sulMcnptions  are  applica- 
ble to  a  going  concern,  nevertheless,  a  court  of 
equi^  has  jurisdiction,  on  petition  of  the  re- 
ceivers, to  estimate  the  claims  against  the  cor- 
poration, and  provide  for  an  assessment  against 
tiiose  stockholders  who  had  not  paid  for  their 
■hares  or  whose  subscriptions  were  unpaid. 
%  oobfoblitions  «=>562(1)— stockholders— 
Debts. 
The  contingent  liability  of  stodcholders  for 
the  debts  of  the  corporation  In  the  amount  to 
which  they  are  indebted  for  their  shares  is  an 
equitable  aaset  which  vests  in  the  receivers,  or  at 
least  is  enforceable  by  such  receivers  for  the  ben- 
efit of  all  creditors  who  come  into  the  case. 

8.   COBPORATIONB  <S=>562(1)  —  CaPITAI/— DEBT. 

Independent  of  statute,  the  unpaid  capital 
doe  from  stockholders  is  a  part  of  the  assets  of 
the  corporation,  and  so  belongs  to  it  and  not  to 
the  creditors. 
4.  RECEiysBS  «=>210— AuTHowTr. 

Under  Act  Gen.  Assem.  March  19,  1913  (27 
DeL  Laws,  c.  194;  Rev.  Code  1915,  {  3884),  in 
effect  making  a  receiver  a  quasi  assignee,  a  Del- 
aware receiver  of  a  corporation  may  maintain 
without  the  territorial  limits  of  the  jurisdiction 
■uit  to  enforce  an  assessment  against  share- 
holders. 

6.  COBPOBATIOnS     «s»606(2)  —  Reokitebs  — 
Cbeditobb. 

Where  a  receiver  of  an  insolvent  corpora- 
tion proceeds  to  enforce  the  liability  of  stock- 
holders indebted  for  their  shares,  a  creditor  may 
have  his  claim  paid  from  the  unpaid  balance, 
even  though  he  has  not  obtained  a  judgment 
against  the  corporation  on  which  execution  was 
returned  unsatisfied ;  the  jprovisions  in  Gen- 
eral Corporation  Law,  K  49,  51,  providing  for 
■uit  by  a  creditor  in  such  contingency,  not  ap- 
plying to  a  proceeding  by  the  receiver. 
&  GOBFORATIONS  «=»228— Stockhou>ess— Iil> 

ABIUTY. 

Corporate  stock  issued  and  outstanding  and 
not  paid  for  is  a  fund  for  the  benefit  of  credi- 
tors, and,  in  general,  all  who  hold  stock  not  paid 
for  are  liable  to  creditors  for  the  amount  so  un- 
paid. 

7.  COBPOBATIORB     4=>229  —  GONTBACTB— StTB- 
BC&IFTION   CONTEACTS. 

A  Delaware  corporation  cannot  make  a  sub- 
aeription  contract  which  will  free  the  subscrib- 
er from  the  liability  to  pay  for  his  shares  impos- 
ed by  the  General  Corporation  Law  on  stockhold- 
ers for  benefit  of  creditors ;  the  principle  being 
that  shares  of  stock  in  a  corporation  are  a  sut^ 
stitute  for  the  personal  liability  of  partners. 


8.  COBFOKATIONS  $=9243(1)  —  Stockholdbbs— 
LlABlXITT. 

Those  acquiring  corporate  stock  without  • 
formal  subscription  take  it  subject  to  the  stat- 
utory liability  to  make  payment  in  full  U 
necessary  for  the  benefit  of  creditors. 

9.  CoRPOBAnoRB   4=»243(1)— Stockhou>ebb- 
Cbeditobs. 

As  to  creditors,  there  is  no  difference  between 
the  liability  of  holders  of  stock  and  subscrib- 
ers to  stock  to  pay  the  par  value  of  shares  if 
necessary  for  payment  of  corporate  debts. 

10.  Cokpobations  «=»99(2)  —  Stock  —  Pat- 
MENT— "Work  Done." 

Under  General  (Corporation  Law,  {  14,  and 
C!onst.  art  9,  {  3,  providing  for  the  issuance 
of  corporate  stock  for  "work  done,"  the  ex- 
pression does  not  include  promotion  services  per- 
formed before  incorporation,  and  when  the  in- 
terest of  creditors  is  affected,  it  should  not  in- 
clude prospective  labor  or  work  already  doue 
and  labor  to  be  done. 

11.  Cobpobations  «=>232(3)  — Stock  — lasD* 

ANCE. 

While  under  General  (Corporation  Lew,  {  14, 
and  Const,  art.  9,  {  3,  allowing  corporate  stock 
to  be  issued  for  work  done,  the  judgment  of  di- 
rectors as  to  the  value  of  such  services  is  con- 
clu:9ive  in  the  absence  of  fraud,  an  issue  of  near- 
ly $3,000,000  worth  of  common  stodc  in  a  cor- 
poration for  promotion  services  and  services 
rendered  in  disposing  of  preferred  atoek  is 
fraudulent,  and  may  be  attacked  by  stockholden; 
there  being  no  atbmifit  even  to  show  that  the 
services  were  of  a  value  corresponding  to  ths 
stock  issued. 

12.  Cobpobationb    S=>244(7) — Stockholdbbs 
— Shakes. 

Where  the  directors  for  incorporation  serv- 
ices and  services  to  be  performed  issued  corpo- 
rate stock  of  a  value  greatiy  in  excess  of  the 
value  of  such  services,  an  innocent  purchaser  for 
value  who  took  the  shares  is  exempt  from  lia- 
bility to  pay  any  part  of  their  par  value- 

13.  CORPOBATIONB  «=>243(6)  —  Tbostb  —  VOT- 
INO  Trusts. 

Common  stock  given  aa  a  b<mtu  to  purchas- 
ers of  preferred  stock  was  deposited  in  a  voting 
trust,  the  purchasers  taking  trust  certificates, 
and  the  trustees  holding  the  legal  titie  to  the 
stock  for  the  purpose  of  voting  it.  Held,  that 
persons  to  whom  voting  trust  certificates  were 
issued  were  the  beneficial  owners  of  the  stock, 
and  were  liable  to  corporate  creditora  for  the 
amount  unpaid  thereon,  even  though  (he  legal  ti- 
tie was  in  trustees. 

14.  Cobpobations  €=9243(0)  —  Stookholdebs 

— LlABIUTr. 

In  such  case,  all  purchasers  of  the  preferred 
stock  who  received  voting  trust  certificates  for 
common  stock  took  them  as  a  bonus,  there  beinf 
no  intention  on  the  part  of  the  c(Ri>oratioo  that 
payment  should  be  made,  and  hence,  notwith- 
standing the  recitals  in  the  certificates  of  com- 
mon stock  that  they  were  fully  paid,  they  were 
charged  with  notice  of  nonpayment,  and  were 
l>ound  to  respond  if  necessary  to  protect  cor- 
porate creditors  to  amounts  unpaid  on  the  com- 
mon stock. 

15.  Cobpobations  #=s>232(2)  —  AoBEEJcsKTa^ 
Stock. 

An  agreement  between  a  corporation  and  its 
■tockholders  that  corporate  stock  should  be 
issued  otherwise  than  for  money  paid  or  the 
statutory  equivalent  is  void;  hence  an  Sfrw 
ment  that  common  stock  should  be  issued  as  a 
bonus  to  purchasers  of  preferred  stock  a  in- 
valid. 

16.  corpobatiqnb  «=»262(2)  —  stookholons 
— Peefebbed  Shabeholdebs. 

Purchasers  of  the  preferred  stock  of  a  cor- 
poration who  received  common  stock  as  a  bonus 


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88] 


cannot  escape  liabilit;  for  amonnts  unpaid  on 
their  preferred  shares  on  the  ground  that  such 
shares  could  not  have  been  lawfully  issued  under 
General  Corporation  Law,  {  13,  declaring  that 
at  no  time  shall  the  total  amoont  of  the  pre- 
ferred stock  exceed  two-thirds  of  the  actual 
capital  paid  in  cash  or  property,  for  when  they 
acquired  the  preferred  stock,  knowing  that  the 
common  stock  was  issued  as  a  bonus,  they  must 
have  known  that  the  only  source  from  which 
the  corporation  could  obtain  capital  was  from 
the  preferred  stock,  while  creditors  might  not 
bave  known  that  fact. 

17.  CoBPORATiONs  €=»262(2)  —  Stockholdkbs 
— Pbefebbed  Shareholders. 

In  such  case,  purchasers  of  preferred  stock 
who  received  voting  trust  certificates  for  com- 
mon stock  issued  as  a  bonus  are  in  the  same 
position  as  purchasers  who  received  the  actual 
shares,  for  they  were  put  on  Inquiry,  and  an  in- 
quiry would  have  shown  that  all  of  the  com- 
mon stock  was  ordered  issued  for  promotion 
services,  etc.,  and  bonus  purposes  at  the  first 
meeting  of  the  directors  and  the  voting  trust  was 
then  arranged. 

18.  CoRPORATiONB  «=>262(2>— Stock— Pbefer- 
jtxD  Stock. 

Where  a  corporation  had  power  to  issue  pre- 
ferred stock,  but  exercised  such  power  inef- 
fectually or  informally,  stockholders  taking  the 
stock  are,  as  against  creditors,  estopped  from 
urging  the  invalidity  of  the  issue  to  escape  pay- 
ment. 

19.  CORFOBATIONS  «=3243(4)— STOCK— Pbefbb- 

BED  Stock. 
The  provision  of  General  Corporation  Law, 
I  13,  that  in  no  event  shall  a  holder  of  prefer- 
red stock  be  personally  liable  for  the  debts  of 
the  corporation  does  not  exempt  holders  of  pre- 
ferred stock  from  calls  or  assessments  up  to  the 
par  value  for  creditors,  but  merely  exempts 
them  from  liability  beyond  that  imposed  by 
section  20. 

20.  CoRFORATioNB  «=>262(2)— Stock— Pbkkeb- 
BED  Stock— "Cafitai,." 

Though  General  Corporation  Law,  S  13,  de- 
clares that  at  no  time  shall  the  total  amount  of 
preferred  stock  exceed  two-thirds  of  the  actual 
capital  paid  in  cash  or  property,  and  the  word 
"capital  as  distinguished  from  capital  stock 
means  the  property  of  the  corporation,  holdera 
of  preferred  stock  cannot  defeat  the  issue  on 
the  ground  that  the  only  corporate  assets  were 
those  derived  from  the  sale  of  the  preferred 
shares  for  the  amount  of  capital  paid  in  cash 
or  property  fluctuates,  and  creditors  who  are 
entitled  to  look  to  the  amounts  unpaid  oa  the 
corporate  stock  for  their  protection  cannot  be 
required  to  determine  whether  the  statutory  pro- 
portion v;as  preserved  when  the  preferred  stock 
via.B  issued. 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  E^rst  and  Second  Series,  CapitaL] 

21.  CoBPOBAnoRS  4S9228  —  8tockhoi.debs  — 

LlABIUTY. 

In  case  of  insolvency  of  a  corporation,  all 
the  moneys  due  from  stockholders  who  have  not 
paid  for  their  stock  constitute  a  trust  fund  for 
creditors,  and  there  is  no  difference  between  the 
preferred  stockholders  and  common  stockholders. 

22.  OoBPORATioNB  «=3243(6)  —  Stockholdebs 

— LlABIUTT. 

Though  creditors  of  a  corporation  knew  at 
the  time  of  extending  credit  that  its  common 
stock  was  issued  as  a  bonus,  holders  of  such  com- 
mon stock  may  be  required  to  pay  the  par  value 
thereof  for  the  benefit  of  such  creditors. 

23.  Cobpobatiokb  9=3249(1)  —  Stookholdebs 
— Riobts  as  Cbsditobs. 

Stockholders  liable  to  assessment  for 
amounts  unpaid  on  their  shares,  who  are  also 


creditors,  cannot  set  off  the  amount  which  they 
will  be  assessed  against  the  debts  due  them,  but 
must  pay  their  assessment  and  share  in  the 
fund  when  realized. 

24.  OoBPOBATiONS  *=»B64  —  Stookholdebs  — 
Obeditobs. 

Stockholders  who  took  stock  with  notice 
of  irregiilarities  in  the  issue  thereof  and  who 
extended  credit  to  a  corporation  are  not,  because 
of  their  knowledge,  estopped  from  participating 
as  creditors  after  they  have  paid  the  assess- 
ment levied  for  amounts  due  on  their  shares. 

25.  Corporations  e=>562(2)— Stock— Assebs- 

UENTS. 

That  a  corporation  itself  made  a  call  on 
stockholders  to  pay  the  amounts  due  on  shares 
subscribed  for  does  not,  after  insolvency,  prevent 
the  court  from  making  a  call  or  assessment  for 
the  protection  of  creditors. 

26.  Cobporationb  (3=3562(2)  —  Stockholdebs 
— Liabiuty — Abbesbmentb. 

Where  a  corporate  receiver  had  been  appoint- 
ed and  an  assessment  against  the  stockholders 
who  had  not  fully  paid  for  their  shares  was  nec- 
essary, such  assessment  should  not  be  levied 
against  a  stockholder  who  had  been  adjudicated 
a  bankrupt,  but  in  the  absence  of  evidence  no 
stockholders  will  be  excluded  on  the  ground  of 
financial  irresponsibility. 

27.  Cobporationb  «=9562(2)  —  Stockholdebs 
— Assessments. 

Where  the  stockholders  of  a  corporation  were 
delinquent  in  paying  for  tJieir  shares  and  on  in- 
solvency an  assessment  waa  necessary,  the  whole 
assessment  may  be  made  against  delinquent 
stockholders  within  the  jurisdiction  of  the  state 
wherein  the  corporation  was  organized  and  the 
receiver  appointed,  such  stockholders  having 
paid  being  entitled  to  enforce  contributions  from 
other  stocliholders,  and  for  that  purpose  to  use 
the  decree  m^ing  the  assessment. 

28.  Cobpobationb  «=3662(2)  —  Inbolvewot— 
Abbebsuknt  aoainbt  Stockholders. 

Where  receivers  of  an  insolvent  corporation 
petitioned  that  its  debts  be  estimated  and  an 
assessment  levied  against  stockholders  who  had 
not  fully  paid  for  their  shares,  the  defense  of 
limitations  on  the  ground  of  a  previous  call  for 
payment  by  corporate  directors  will  not  be  dis- 
posed of,  being  one  which  can  be  raised  by  in- 
dividual stockholders  when  suit  is  brought  to 
enforce  their  liability. 

29.  CORFOBATIONB  9=»273— Gbeditobs— Irteb- 
EST. 

While  ordinarily  creditors  of  an  insolvent 
corporation  whose  a&sets  are  being  administered 
by  a  receiver  are  not  allowed  interest  beyond 
the  date  of  the  appointment  except  on  liens 
which  bear  interest,  creditors  of  a  corporation 
are,  where  the  amounts  due  from  shareholders 
on  unpaid  shares  exceed  the  amount  of  the 
claims,  entitled  to  have  interest  calculated  on 
their  daims. 

30.  CoKPORATioKS  €=>562(2)  —  Stockholdebs 
— Absebsments. 

Where  a  corporation  is  adjudicated  Insolvent, 
and  the  receivers  appointed  petition  that  the 
liabilities  be  estimated  and  an  assessment  levied 
against  those  shareholders  who  have  not  paid 
the  par  value  of  their  shares  su£Scient  to  satisfy 
the  corporate  debts  and  costs  of  receivership, 
etc.,  the  stockholders,  though  not  parties,  are  so 
far  an  integral  part  of  the  corporation  that 
they  are  deemed  privy  to  the  proceedings,  and 
for  that  reason  cannot  question  the  propriety 
of  the  assessment  when  made,  though  it  de- 
pends in  part  on  estimates. 

31.  CORPOBATIONB  «=s»562(2)— Pboceedirgs — 

Assessment. 
In  a  proceeding  on  petition  of  receivers  to 
levy  an  assessment  against  those  shareholders 


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(Dd. 


who  had  not  fully  paid  for  their  shares,  proof 
that  the  corporate  books  show  one  to  be  the 
owner  of  specified  shares  and  to  be  indebted 
therefor  makes  out  a  prima  facie  case  on  which 
the  court  will  fix  the  liability  to  be  imposed  on 
each  share  of  stock,  so  that  the  receivers  can 
test  by  suit  the  status  of  persons  supposed  to  be 
stockholders  and  their  liability  for  tae  amount 
assessed  against  them. 

32.  Corporations  <S=.562(2)  —  Stockuoujeks 
— LiABiuTT  —  Questions  fob  Detebuima- 

TION. 

Jn  a  proceeding  by  receivers  to  levy  an  as- 
sessment against  those  stockholders  who  had 
not  fully  paid  for  their  shares,  contentions  that 
a  particular  shareholder  was  excused  from 
liability  because  of  notations  made  on  his  sub- 
scription, or  because  of  a  release  by  the  board 
of  directors,  or  because  of  the  bar  of  limitations 
are  personal  defenses  which  will  only  be  dis- 
posed of  in  a  direct  proceeding  against  the 
shareholder. 

83.  COBPOBATIONS   <3=>562(2)  —  STOCKHOLDERS 

— Liability  —  Questions  foe  Detekmina- 

TION. 

In  a  proceeding  by  corporate  receivers  to 
levy  an  assessment  against  shareholders  who 
had  not  paid  for  their  shares,  the  court  will  not 
pass  on  the  defense  of  one  appearing  on  the 
books  to  be  a  shareholder,  and  who  was  a  direc- 
tor, which  was  to  the  effect  that  a  certificate 
made  out  in  his  name,  but  assigned,  bad  been 
exhibited  to  him  to  qualify  him  for  a  director, 
and  that  he  had  never  held  the  shares  appearing 
in  his  name  which  were  marked  fully  paid,  but 
will,  for  purposes  of  the  assessment,  treat  him 
aa  a  shareholder. 

84.  cobpobationb  «=»273  —  btockholders— 
Assessments. 

Where  onlv  one  stockholder  was  a  resident 
of  the  state  wherein  the  corporation  was  or- 
ganized and  a  receiver  appointed,  and  not  only 
was  he  financially  reanonsible,  but  the  amount 
due  from  him  on  his  unpaid  shares  was  sufii- 
cient  to  discharge  all  obligations,  the  receivers, 
it  no  other  way  proves  feasible,  may,  the  pro- 
ceeding being  one  for  the  benefit  of  creditors, 
b«  authorized,  in  a  proceeding  to  levy  an  assess- 
ment against  stockholders  on  their  unpaid  shares, 
to  collect  the  entire  amount  necessary  from  the 
resident  stockholder,  such  stockholder  to  be 
subrogated  to  the  rights  of  receivers  and  cre<U- 
tors  against  other  stockboldprs  whose  liability 
would  be  fixed  by  the  proceeding. 

Sopplemental  Opinion  as  to  Form  of  Decree. 

85.  OORPORATIONB   9=>562(2)  —  Stookholdess 
— IvIABIUTT. 

Where  receivers  of  an  insolvent  corporation 
petitioned  for  the  levy  of  an  assessment  against 
shareholders  who  had  not  fully  paid  for  their 
shares,  those  stockholders  who  had  made  pay- 
ments on  their  stock  in  excess  of  their  proportion 
of  the  amount  necessary  to  be  levied  should  be 
excluded,  and  those  stockholders  who  had  made 
payments  on  account  of  their  shares  should  be 
given  credit  therefor;  some  of  the  stockholders 
having  paid  nothing. 

Bill  by  tbe  Jobn  W.  Cooney  Company 
against  the  Arlington  Hotel  Company,  In 
which  receivers  were  appointed.  On  petition 
of  receivers,  creditors  of  the  defendant  com- 
pany were  notified  to  flle  their  claims,  notice 
was  given  to  all  persmns,  including  stockliold- 
urs,  of  their  right  to  except,  and  an  usscss- 
uieut  was  levied  agnlu.«t  delluquout  stock- 
holders. 


Statement  of  tbe  Case. 

The  matter  under  consideration  is  the  pe- 
tition of  receivers  of  an  insolvent  Delaware 
corporation  for  authority  to  collect  from 
stockholders  of  the  company  the  money  not 
paid  on  their  shares  of  stock  In  order  that 
the  receivers  may  pay  the  debts  of  the  com- 
pany remaining  unpaid  after  applying  there- 
to the  assets  of  the  company  which  have 
come  Into  their  hands. 

On  October  28,  191-1,  a  blU  was  filed  In  this 
court  against  the  defendant,  the  Arlington 
Hotel  Company,  by  John  W.  Cooney  Com- 
pany for  Itself  and  on  behalf  of  all  other 
creditors  of  the  company  for  the  appoint- 
ment of  a  receiver,  and  therein  the  complain- 
ant alleged  that  as  a  creditor  It  had  obtained 
a  Judgment  against  the  defendant  company; 
that  an  execution  thereon  had  been  returned 
nulla  bona ;  that  the  defendant  company  was 
Insolvent;  and  that  the  assets  of  the  de- 
fendant company  consist  for  the  most  part 
of  unpaid  subscriptions  to  Its  capital  stock. 
A  receiver  was  prayed  for.  Later  a  decree 
pro  confesso  was  entered,  and  the  defendant 
was  adjudged  to  be  Insolvent,  and  receivers 
were  appointed  to  wind  up  Its  affairs. 

Afterwards  this  present  proceeding  was  In- 
stituted by  petition  of  the  receivers,  setting 
forth  matters  whldi  are  of  record  In  the 
cause,  viz. :  That  creditors  of  the  defendant 
company  had  been  notified  to  file  their  claims 
and  notice  given  to  all  persons  Interested, 
Including  stockholders,  of  their  right  to  ex- 
cept to  any  claims  so  filed,  and  that  claims 
of  creditors  filed  and  allowed  aggregated 
$466,7.39.42.  A  list,  or  schedule,  of  holders 
of  outstanding  stock,  preferred  and  common, 
was  annexed  with  the  dates  and  history  of 
the  Issue  of  the  shares,  and  It  was  alleged 
that  no  payments  had  been  made  thereon  ex- 
cept as  specifically  stated  in  the  schedule; 
and  further,  that  no  call  had  been  made  fbr 
the  payment  of  the  subscriptions.  And  fur- 
ther, that  T.  Coleman  du  Pont  also  called 
Coleman  du  Pont,  one  of  the  stockholders  on 
the  list  was  the  only  stockholder  who  rs- 
slded  In  Delaware.  The  cost  of  the  receiver 
ship  and  expenses  of  collecting  from  the 
stockholders  their  stock  unpaid  for  was  esti- 
mated at  $100,000.00. 

The  prayer  of  the  petition  was  that  the 
court  levy  an  assessment  requiring  paymoit 
by  stockholders  of  such  amounts  aa  may  be 
found  necessary  to  pay  the  debts  of  the  com- 
pany and  the  expenses,  with  leave  to  bring 
actions  to  recover  the  assessments. 

On  this  petition  an  order  was  made  re- 
quiring the  stodcholders  named  in  the  sdied- 
ule  to  appear  and  show  cause,  and  for  notice 
to  them  by  registered  letter.  Proof  was 
made  of  the  sending  of  the  notices,  and  ae- 
knowledgnients  of  the  receipt  thereof  by  near- 
ly all  of  the  addressees. 

Several  of  the  stockholders  have  appeared 
to  the  petition,  viz.:     Murray  A.  Cobb,  ap- 


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parently  the  bolder  of  ten  sbares  of  common 
stock,  wherein  he  denied  being  a  stockholder 
and  denying  liability.  Z.  D.  Blacklstone, 
stated  In  the  schedule  to  be  the  holder  of 
preferred  stock  and  no  common  stock,  or 
voting  trust  certificates,  who  among  other 
things  denied  the  power  and  right  of  the  com- 
pany to  Issue  any  preferred  sto<^,  because 
no  actual  capital  had  been  paid  to  the  com- 
pany In  cash  or  property.  Albert  L.  Stavely, 
stated  in  the  schedule  to  be  the  bolder  of 
preferred  stock  and  also  the  holder  of  a  cer- 
tificate under  the  yotlng  trust,  and  who  had 
paid  In  full  for  his  preferred  stock.  He  ad- 
mits that  he  subscribed  and  paid  tor  sliares 
of  preferred  stock,  but  never  bad  any  com- 
mon stock  or  any  voting  trust  certificates. 
William  H.  Fenn,  stated  in  the  schedule  to 
be  the  bidder  of  common  stock.  T.  Ooleman 
du  Pont,  stated  in  the  schedule  to  be  the 
bolder  of  both  preferred  and  common  stock. 

Subsequently  a  hearing  was  bad  upon  the 
petition  and  the  answers  thereto,  and  testi- 
mony of  witnesses  was  heard  orally  by  the 
Chancellor  and  exhibits  and  records  intro- 
duced in  evidence. 

So  far  as  pertinent  to  the  matters  now  de- 
cided, it  appeared  that  the  company  was 
created  pursuant  to  a  certificate  of  incorpo- 
ration recorded  January  28,  1911,  under  the 
General  Corporation  Law  of  Delaware.  By 
it  the  authorized  capital  was  fixed  at  $5,500,- 
000.00,  divided  into  fifty-five  thousand  sbares 
of  par  value  of  one  hundred  dollars,  of 
which  twenty-five  thousand  shares  were  to 
be  preferred  stock  and  thirty  thousand 
sbares  to  be  common  stock,  with  the  follow- 
ing statement :  "The  common  stock  shall  be 
nonassessable,  full  paid."  The  three  Incor- 
porators subscribed  for  shares  aggregating 
one  hundred.  On  January  28,  1911,  the  In- 
cori)orators  met,  organized,  adopted  by-laws, 
elected  directors  and  took  other  formal  or- 
ganization steps,  but  no-  other  business  was 
transacted. 

On  February  28,  1911,  the  first  meeOng  of 
the  directors  was  held,  at  which  five  of  the 
nine  persons  who  had  been  elected  directors 
were  present:  Coleman  du  Pont,  Frank  M. 
Andrews,  George  Howard,  Murray  Cobb  and 
Frederick  E.  Chapln,  and  officers  were  elect- 
ed. The  following  resolution  was  adopted  at 
tliat  meeting: 

"Upon  motion  duly  made  and  seconded,  and  by 
the  affirmative  vote  of  aU  present,  the  following 
resolution   was  adopted: 

"  'Resolved,  that  as  the  success  of  the  enterprise 
will  depend  largely  upon  the  energy,  ability,  and 
integrity  of  George  Howard,  Frank  M.  Andrews 
and  James  F.  J.  Archibald  in  securing  options 
on  the  property,  promoting,  financing  and  manag- 
ing the  same,  and  inasmuch  as  it  is  desired  to 
offer  additional  inducements  to  snbscribers  of 
the  preferred  stock  and  to  remucerate  the  said 
George  Howard,  Frank  M.  Andrews  and  James 
P.  .T.  Archibald  for  services  rendered  and  to  be 
rendered  by  them,  and  by  others,  therefore  shall 
it  be,  and  hereby  is,  assigned  and  transferred  to 
the  aforesaid  persons  the  entire  issiic  of  the  com- 
raon  stock,  to  be  used  by  them  for  the  purposes 
named,  with  the  distinct  uiderstanding  that  tlie 


holders  of  the  common  stock  shall  agree  to  trans- 
fer the  same  to  a  voting  trust  consisting  of  the 
aforesaid  persons,  and  to  receive  in  lien  thereof 
trustee  certificates,  for  the  purpose  of  vesting  in 
them  the  right  to  vote  thereon  for  a  period  of 
five  years  from  the  date  of  the  Incorporation, 
such  voting  trust  being  created  for  the  purpose 
of  carrying  out  the  purposes  aforesaid  and  the 
articles  of  incorporation  uninterruptedly  during 
that  period.' " 

Afterwards  printed  subscription  blanks 
were  used  to  obtain  subscriptions  to  prefer- 
red stock.  Sbares  of  nil  of  the  common  stock 
were  Issued,  and  the  plan  for  a  voting  trust 
as  to  the  common  stock  was  carried  out. 

Pursuant  to  the  plan  of  distributing  com- 
mon stock  to  subscribers  to  preferred  stock, 
authorized  by  the  directors  at  their  first  meet- 
ing on  February  28,  1911.  Howard  and  An- 
drews,  having  in  their  names  as  trustees  nine- 
teen thousand,  eight  hundred  shares  of  com- 
mon stock,  made  two  agreements  with  the 
company  in  the  form  of  declarations  of  trust, 
one  of  December  12,  1911,  and  the  other  of 
September  25,  1911,  by  which  the  shares  to 
be  so  issued  as  nonassessable  and  fuU  paid 
should  be  held  by  them  as  trustees  for  those 
to  whom  the  bonus  stock  was  given,  tbe  trus- 
tees to  have  a  right  to  vote  the  sbares  for  a 
period  of  years,  and  to  issue  to  the  benefi- 
ciaries certificates  called  "Voting  Trust  Cer- 
tificates" representing  the  several  holdings  of 
common  stock.  These  beneficiaries  could 
transfer  the  certificates,  and  the  trustees 
undertook  to  keep  books  to  register  these 
certificates.  The  forms  of  these  trust  agree- 
ments are  substantially  the  same  and  differ 
as  to  the  time  for  which  they  were  to  run. 

Accordingly  Howard  and  Andrews  issued 
under  the  first  of  these  trust  agreements 
seventeen  voting  trust  certificates,  and  un- 
der tbe  second  agreement  twenty  such  certif- 
icates, aggregating  three  thousand,  seven  hun- 
dred and  forty-seven  and  one-half  shares,  by 
the  agreement  with  the  company  these  re- 
maining shares  for  wUch  voting  trust  cer- 
tificates were  not  issued  are  the  property  of 
Howard  and  Andrews  as  holders  of  common 
stock  not  paid  for. 

Some  of  the  subscribers  to  tbe  preferred 
stock  being  in  default,  the  directors  on  July 
T,  1913,  made  a  call  for  payment  of  all  unpaid 
subscriptions.  Subsequently  the  enterprise 
failed,  almost  all  of  the  property  of  the  com- 
pany was  sold  by  lien  creditors,  and  receivers 
appointed  in  the  District  of  Colnmbhi  realized 
on  some  assets  and  paid  creditors  in  part.  A 
bill  was  then  filed  in  this  court,  as  stated 
above.  The  other  pertinent  facts  are  stated 
in  the  opinion  of  the  Chancellor. 

The  Important  provisions  of  the  Constitu- 
tion and  statute  referred  to  in  the  opinion  are 
these: 

Section  3  of  article  9  of  the  Constitution 
is,  as  follows: 

"No  corporation  shall  issue  stock,  except  for 
money  paid,  labor  done  or  personal  property,  or 
real  estate  or  leases  thereof  actually  acquired 
by  such  corporation." 


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101  ATLANTIC  EEPORTEE 


(Dd. 


Section  13  of  chapter  65  of  the  Revised 
Code  of  1915,  paragraph  1927,  authorizes  the 
creation  of  classes  of  stock,  and  then  provides, 
as  follows: 

"•  *  ♦  But  at  no  time  shall  the  total 
amount  of  the  preferred  stock  exceed  two-thirds 
of  the  actual  capital  paid  in  cash  or  property." 

Sections  20,  49  and  51  of  chapter  65  of  the 
Rorlsed  Code  of  1915,  paragraphs  1034.  1903, 
and  1965  are,  as  follows: 

"See.  20.  StorJcholdcra  LiaUliti(  for  Part  Paid 
for  Stocfe.— When  the  whole  capital  stock  of  a 
corporation  shall  not  have  been  paid  in,  and  the 
assets  shall  be  insufficient  to  satisfy  the  claims 
of  its  creditors,  each  stockholder  shall  be  bound 
to  pay  on  each  share  held  by  him  the  sum  neces- 
sary to  complete  the  amount  of  the  par  vaUie  of 
such  share  as  fixed  by  the  charter  of  the  com- 
pany or  its  certificate  of  incorporation,  or  such 
proportion  of  that  sum  as  shall  be  required  to 
satisfy  the  debts  of  the  company,  which  said  sum 
or  proportion  thereof  may  be  recovered  as  pro- 
vided for  in  section  49  of  this  chapter,  after  a 
writ  of  execution  against  the  corporation  has 
been  retnmed  unsatisfied,  as  provided  for  in  seC" 
tion  51  of  this  chapter." 

"Sec.  49.  Liahility  of  Offioert,  etc.;  Action* 
for. — When  the  officers,  directors  or  stockhold- 
ers of  any  corporation  organized  under  this  chap- 
ter shall  be  liable  by  the  provisions  of  this  chap- 
ter to  pay  the  debts  of  the  corporation,  or  any 
part  thereof,  any  person  to  whom  they  are  lia- 
ble may  have  an  action  on  the  case  against  any 
one  or  more  of  them,  and  the  declaration  shall 
state  the  claim  against  the  corporation,  and  the 
(round  on  which  the  plaintiff  expects  to  charge 
the  defendants  personally;  or  the  person  to 
whom  they  are  liable  may  have  bis  remedy  by 
bill  in  chancery." 

"Sec.  51.  Xo  Suit  oi/aitut  Director  or  Stock' 
holder  Until  Judgment  against  Corporation.— Ho 
suit  shall  be  brought  against  any  director  or 
stockholder  for  any  debt  of  a  corporation  or- 
ganized as  aforesaid,  of  which  he  is  such  direc- 
tor or  stockholder,  until  judgment  be  obtained 
therefor  against  such  corporation  and  execution 
thereon  returned  unsatisfied." 

John  R.  Nicbolsvn,  of  Wilmington,  and  H. 
H.  (Jlassle,  of  Washington,  D.  C,  for  re- 
ceivers. Andrew  O.  Gray,  of  Wilmington,  and 
H.  Preston  Gatley,  of  Washington,  D.  C, 
for  Albert  h.  Stavely.  Hugh  M.  Morris,  of 
Wilmington,  and  Hugh  H.  O'Bear,  of  Wash- 
ington, V.  C,  for  Z.  D.  Blackistone.  Robert 
H.  Richards,  of  WUmington,  for  William  H. 
Fenn.  Thomas  F.  Bayard,  of  Wilmington, 
and  Samuel  E.  Swayze,  of  Washington,  D.  C, 
for  Murray  A.  Cobb.  William  S.  HlUes  and 
Robert  H.  Richards,  both  of  WUmington,  for 
T.  Coleman  du  Pont 

THE  CHANCELLOR.  The  Arlington  Hotel 
Company  has'  been  adjudged  by  this  court  to 
be  insolvent,  receivers  have  been  appointed 
for  it,  the  creditors  of  the  company  have 
proved  In  this  court  their  claims,  and  they 
have  been  allowed,  all  the  stockholders  hav- 
ing had  notice  of  the  filing  of  the  claims  and 
been  given  an  opportunity  to  contest  them 
by  exceptions  to  be  taken  thereto.  It  appears 
as  a  fact  proven  in  the  case  that  the  aggre- 
gate of  the  debts  and  the  estimated  cost  of 
administration  of  the  receivership,  including 
the  cost  of  litigation  with  stockholders  to  re- 
cover from  them  moneys  due  and  unpaid  on 


shares  of  stock  held  by  them,  exceeds  the 
amounts  claimed  to  be  due  upon  the  shares 
of  preferred  stock,  and  Is  less  than  the 
amount  claimed  to  be  unpaid  upon  the  shares 
of  common  stock,  and  is,  of  course,  less  than 
the  amount  claimed  to  be  unpaid  on  shares  of 
preferred  and  common  stock  taken  together. 

By  their  petition  representing,  among  other 
things,  these  facts  and  the  names  of  holders 
of  the  two  classes  of  stocli,  as  they  appear  on 
the  books  of  the  company,  the  receivers  ask 
the  court  to  authorize  .an  assessment  on 
shareholders  of  both  classes  for  the  payment 
of  the  creditors.  Of  this  petition  notice  was 
I  given  to  ail  stockholders  and  some  have  ap- 
peared and  filed  answers,  and  the  rest  have 
done  neither. 

[1]  The  first  question  to  be  considered  la 
the  one  raised  as  to  the  Jurisdiction  of  the 
court  respecting  the  proceeding  against  the 
shareholders.  It  is  contended  for  the  share- 
holders, that  even  assuming  that  there  is  an 
unpaid  balance  due  from  them  on  their  stock 
up  to  the  par  value  thereof  (which  is-  denied), 
their  liability  Is  to  the  creditors  and  not  to 
the  company,  or  its  receiver;  and  that  It 
cannot  be  enforced  by  the  receivers  at  all; 
and  if  at  all,  then  in  no  other  way  than  by 
the  method  of  procedure  prescribed  l>y  the 
statute  which  imposed  the  liability,  though 
counsel  are  not  more  specific  as  to  the  method 
of  procedure. 

In  general  the  Delaware  Incorporation  Act 
authorizes  the  corporation  to  obtain  subscrip- 
tions to  stock  when  the  whole  capital  stock 
has  not  been  subscribed  (section  21);  and 
provides  to  the  directors  remedies  for  en- 
forcing i)aymeut  of  the  subscriptions  (sectioa 
22).  These  sections  are  applicable  to  a  cor- 
poration while  It  is  a  going  concern  and  seem 
to  have  no  bearing  on  the  questions  here 
raised. 

Wlien  the  assets  of  the  corporation  are  In- 
sufficient to  pay  its  creditors,  and  the  whole 
capital  stock  of  the  company  has  not  been 
paid  in,  then  by  section  20  it  is  declared  that 
each  stockholder  shall  be  bound  to  pay  on 
each  share  held  by  him  the  sum  necessaiT 
to  complete  the  amount  of  the  par  value  of 
such  share,  or  such  proportion  of  that  sum  as 
shall  be  required  to  satisfy  the  debts  of  the 
company.  It  is  not  declared  in  the  act  to 
whom  this  liability  Is  due,  and  certainly  It  is 
not  declared  that  the  liability  is  to  creditors 
only  to  the  exclusion  of  the  corporation,  or  to 
a  receiver  therefor  appointed  either  before 
or  after  dissolution  to  wind  up  Its  affairs. 
This  section  goes  on  to  provide  that  the  sum 
unpaid  on  the  stock,  or  the  proportion  there- 
of, required  to  satisfy  the  debts  of  the  com- 
pany, may  be  recovered  as  provided  in  sec- 
tion 49  after  an  execution  against  the  com- 
pany has  been  returned  unsatisfied,  as  pro- 
vided for  in  section  51.  By  section  49  when 
the  stockholders  of  a  corporation  are  liable 
under  the  act  to  pay  the  debts  of  the  com- 
pany, any  person  to  whom  they  are  liable 


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885 


may  hare  an  action  at  law  against  any  one 
or  more  of  the  stockholders,  oi*  "may  have 
his  remedy  by  bill  In  chancery."  By  section 
51  no  suit  may  be  brought  against  a  stock- 
holder for  any  debt  of  the  company  "until 
judgment  be  obtained  therefor  against  such 
corporation  and  execution  thereon  returned 
unsatisfied." 

There  are  other  sections  in  the  act  which 
relate  to  the  powers  and  duties  of  recelrers, 
or  trustees,  of  corporations,  and  the  method 
of  winding  up  the  affairs  of 'the  company,  in- 
cluding the  filing  and  allowance  of  claims  of 
creditors  and  distribution  of  moneys  of  the 
company  by  the  receivers.  But  these  have 
generally  been  considered  to  refer  not  to  the 
receivers  appointed  by  the  court  on  the 
ground  of  insolvency,  or  for  any  other  rea- 
son than  the  dissolution  of  the  company,  re- 
ceivers after  dissolution  being  substituted  for 
directors,  who  upon  dissolution  become  trus- 
tees to  wind  up  the  affairs  of  the  company. 
These  provisions  are  unimportant  in  this 
case.  In  order  to  ensure  uniformity  of  pro- 
cedure in  the  administrative  details  in  liqui- 
dations it  Is  enacted  In  the  rules  of  the  Court 
of  Chancery,  adopted  pursuant,  as  is  believ- 
ed, to  legislative  authority,  the  rules  are 
made  applicable  to  all  receivers  of  corpora- 
tions whether  dissolved  or  not. 

Y?hen  a  corporation  becomes  insolvent  the 
liability  of  stockholder  to  pay  for  his  stodc 
Is  either  fixed  by  sectlOTi  20,  or  that  section 
states  a  liability  existing  independent  of  the 
statute,  and  it  is  not  now  necessary  to  de- 
clare whether  they  are  substantially  the 
same,  or  what  the  differences  between  them 
are  If  they  are  not  the  same.  Obviously  the 
purpose,  and  the  only  purpose,  of  these  re- 
quirements of  the  statute  is  to  furnish  proof 
that  the  debt  is  due  and  that  the  company  is 
insolvent,  as  the  basis  of  further  proceedings 
against  stockholders.  A  choice  of  remedies  is 
given  to  such  a  creditor ;  he  may  either  sue 
a  stockholder  at  law,  or  may  have  a  remedy 
by  bill  in  chancery.  If  he  elects  to  proceed 
in  chancery,  he  probably  would  file  his  bill 
against  one  or  more  of  the  stockholders, 
either  separately  or  jointly,  and  might  be 
given  relief  in  that  way,  though  such  a  pro- 
ceeding would  be  entirely  novel  in  Delaware 
and  would  be  a  distinct  and  undesirable  de- 
imrture  in  this  court,  for  it  would  be  using  an 
equity  court  to  enforce  the  payment  of  a  debt 
—a  thing  which  could  be  done  as  well,  if  not 
better,  in  a  court  of  law.  A  creditor  of  a 
company  who  has  obtained  a  judgment 
against  it,  and  whose  execution  has  been  re- 
turned unsatisfied,  may  also  file  a  bill 
against  the  corporation  alone,  obtain  therein 
a  decree  appointing  receivers,  and  in  that 
cause  have  the  claims  of  all  creditors  of  the 
company  ascertained  and  allowed,  and  their 
priorities  and  preferences  determined.  After 
the  assets  of  the  company  have  been  collected 
the  deficiency  of  assets  to  meet  the  ascer- 
tained liabilities  is  established.  The  receiv- 
ers may  then  on  behalf  of  the  complainant 


creditor,  and  of  all  other  creditors  who  may 
come  in  by  proving  their  claims  in  the  cause, 
Including  creditors  who  have  not  theretofore 
obtained,  or  do  not  thereafter  obtain  a  judg- 
ment against  the  corporation  for  the  claims 
due  them  from  the  company,  proceed  to  re- 
cover from  one  or  more  delinquent  stock- 
holders, or  all  of  them  the  sum  or  sums  un- 
paid on  their  stock,  or  whatever  part  thereof 
it  is  necessary  to  collect  In  Order  to  pay  the 
claims  of  all  of  the  creditors.  As  a  step  in 
such  proceeding  the  court  is  asked  to  author- 
ize or  direct  a  levy,  call  or  assessment  on  the 
stockholders,  and  for  this  purpose  to  ascer- 
tain who  the  stockholders  are,  the  number  of 
shares  held  by  them,  and  whether  by  the 
records  of  the  company  the  stock  is  paid  for 
and  the  pro  rata  sum  which  each  should  pay 
to  make  up  the  deficiency  of  assets,  and  some 
other  matters  which  will  be  considered  here- 
inafter. Having  fixed  these  preliminary  fea- 
tures, the  receivers  may  be  authorized  to 
collect  by  separate  suits  at  law  against  the 
stockholders  wherever  they  are,  or  their 
property  is  found,  the  amounts  due  from 
them,  and  In  such  suits  the  individual  de- 
fenses of  each  stockholder  are  available  to 
them. 

In  this  particular  case  It  is  not  necessary 
to  decide  whether  the  liability  of  delinquent 
stockholders  of  this  comi>any  for  their  iin- 
pald  subscriptions  to  capital  stock  can  be  en- 
forced through  a  receiver  only  after  a  judg- 
ment has  been  recovered  against  the  corpora- 
tion and  an  execution  thereon  returned  un- 
satisfied, for  the  complainant  is  a  creditor 
of  the  company,  has  obtained  sudi  judgment 
and  an  execution  thereon  has  been  returned 
unsatisfied. 

The  conclusions  as  stated  above  are  not  In 
confiict  with  either  the  letter  or  spirit  of  the 
statute,  and  on  the  contrary  are  clearly  in 
accord  with  the  spirit  thereof.  That  they  are 
based  on  the  peculiar  functions  and  powers  of 
a  Court  of  Chancery  is  too  obvious  to  need 
enlargement.  But  as  the  question  of  Juris- 
diction is  here  raised  for  the  first  time,  the 
reasons  may  be  amplified. 

Clearly  section  Ii9  provides  alternative 
remedies  of  either  a  direct  action  at  law 
by  a  creditor  against  a  stockholder,  or  a  rem- 
edy by  bill  in  chancery,  for  that  is  the  ex- 
press language  of  the  section.  There  is, 
moreover,  a  good  reason  for  providing  alter- 
native remedies.  A  direct  action  may  not  be 
only  an  efficient  but  a  just  remedy,  as,  for  in- 
stance, if  but  one  stockholder  was  delinquent 
in  paying  for  his  stock  and  there  be  but  one 
creditor  of  the  company  whose  debt  was  un- 
paid. In  that  case  only  the  two  persons 
would  be  Interested,  and  there  would  be  no 
need  to  adjust  liabilities  among  several  in 
proportion  to  the  number  of  shares  held,  or 
other  equities  between  several  classes  of  de- 
linquent stockholders.  On  the  other  hand, 
if  there  are  several  creditors  and  several 
stockholders,  the  adjustment  of  benefits  and 


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liabilities  between  them  Is  properly  cogni- 
zable  In  a  Court  of  Chancery,  which  has  suit- 
able machinery  to  bring  before  it  all  parties 
interested  on  both  sides  of,  or  having  an  in- 
terest in  the  cause,  and  secure  to  each  his 
advantage  and  Justly  apportion  his  liability 
to  pay. 

There  is  no  requirement  that  the  remedy 
of  the  creditor  by  bill  shall  be  directly 
against  the  stockholders,  for  it  Is  not  pre- 
scribed against  whom  or  even  by  whom  it  be 
filed.  The  language  of  the  act  Is  broad  and 
general  enough  to  include  a  bill  for  the  ap- 
pointment of  a  receiver  of  a  corporation 
wherein  its  insolvency  is  adjudicated.  Ob- 
▼loasly  it  is  the  suitable  court  adapted  to  de- 
termine Insolvency  of  the  ccmipany,  collect 
its  assets,  ascertain  and  adjudicate  the  claims 
against  it  and  the  priorities  thereof,  as  repre- 
senting both  creditors  and  stockholders ;  and 
having  power  to  conclude  both  stockholders 
and  creditors  in  such  an  adjudication  the 
court  can  finally  and  conclusively  determine 
the  amount  needed  from  all  the  stockholders 
and  the  proportionate  part  thereof  which 
each  must  pay,  and  so  fix  the  liability  of 
stockholders  without  as  well  as  of  those 
within  the  Jurisdiction  by  a  rule  uniform  as 
toaU. 

[2,  3]  Furthermore,  this  contingent  liabil- 
ity of  stockholders  for  debts  of  the  company 
is  an  equitable  asset  which  vests  in  the  re- 
ceivers, or  at  least  is  enforcible  by  such  re- 
ceivers for  the  benefit  of  all  creditors  of  the 
company  who  come  into  the  cause.  Besides, 
independent  of  the  statute,  the  unpaid  cap- 
ital due  from  stockholders  always  was  and 
la  a  part  of  the  assets  of  the  company,  and  so 
belongs  to  the  company  and  not  to  the  cred- 
itors. In  Sanger  v.  Upton,  91  U.  S.  66,  61,  23 
I*  Ed.  220,  the  court  said : 

"Unpaid  stock  is  as  much  a  part  of  this 
pledge,  and  as  much  part  of  the  assets  of  the 
company,  as  the  cash  which  has  been  paid  in 
upon  It.  Creditors  have  the  same  right  to  look 
to  it  as  to  anything  else,  and  the  same  right 
to  insist  upon  its  payment  as  upon  the  payment 
of  any  other  debt  due  to  the  company.  As 
regards  creditors,  there  Is  no  distinction  as  be- 
tween such  a  demand  and  any  other  asset  which 
form  a  part  of  the  property  and  effects  of  the 
corporation." 

Judge  Bradford  in  Irvine  v.  Elliott  (D.  O.) 
203  Fed.  82,  104,  pointed  out  the  diffo^nce 
in  this  regard  between  the  statutory  double 
liability  of  stockholders  and  the  liability  for 
unpaid  subscriptions  to  stock. 

(4]  Furthermore,  this  liability  is  more  ef- 
fectively enforced  through  a  receiver,  for  a 
Delaware  receiver  may  now  sue  anywhere 
to  mforce  an  assessment  when  made.  This 
is  surely  a  consequence  of  the  act  of  1013 
(27  Del.  Laws,  p.  479;  Revised  Code,  par. 
38S4),  which  in  effect  makes  a  receiver  a  qua- 
si assignee  and  so  removes  the  limitation  of 
an  ordinary  receiver  to  the  territorial  limits 
of  the  Jurisdiction  wherein  he  was  appointed. 
Bemheimer  v.  Converse,  206  U.  S.  516,  531, 
534,  27  Sup.  Ct  755,  51  I*  Ed.  1163,  followed 


by  Converse  v.  Hamilton,  224  U.  S.  243,  82- 
Sup.  Ct  415,  56  I/.  Ed.  749,  Ann.  Cas.  1913D. 
1292. 

Not  <mly  is  the  present  method  of  giving  to- 
the  creditors  their  statutory  right  against 
stockholders  who  have  not  paid  in  full  for 
their  stock  the  most  efficient  way  so  far  as- 
creditors  are  concerned  and  the  most  Just- 
way  so  for  as  the  stockholders  are  concern- 
ed; but  It  is  also  the  way  permitted  by  the 
statute.  One  creditor  may  file  the  biU,  or  one 
or  more  or  all  creditors  may  join  in  one  bill, 
or  one  may  act  for  all  of  them.  So  here,  one- 
creditor  as  a  step  to  enforce  the  stockholders' 
liability  to  him  has  filed  a  bill  in  his  own  and 
their  behalf  established  Insolvency,  had  re- 
ceivers appointed,  and  he  and  the  other  cred- 
itors have  established  their  claims  against 
the  company.  The  liability  wlU  be  ascertain- 
ed by  this  assessment,  iJadivldual  defenses 
of  a  limited  character  excepted,  and  the  li- 
ability when  established  is  binding  on  all 
stockholders,  and  enforcible  by  the  receivers 
wherever  the  stockholders  and  their  property 
may  be  reached. 

[S]  It  is  not  a  reasonable  Interpretation  of 
the  statute  to  hold  that  no  creditor  can  have 
his  debt  paid  from  the  unpaid  balance  due  on 
shares  of  stock  unless  he  has  obtained  a 
Judgment  against  the  company  and  an  execu- 
tion thereon  has  been  returned  unsatisfied. 
Obviously  the  only  purpose  of  the  Judgment 
against  the  company  and  the  execution  on  It 
is  to  determine  that  the  debt  is  owing  and 
that  there  is  no  property  of  the  company 
from  which  it  can  be  collected,  or  in  other 
words,  that  the  company  is  insolvent.  Both 
of  these  elements  may  be  determined  In 
a  Court  of  Chancery  by  a  bill  brought  by  one 
or  more  creditors,  or  as  here  by  a  Judgment 
creditor,  and  the  claims  of  all  other  creditors 
allowed,  and  their  priorities,  if  any,  deter- 
mined, the  assets  collected  and  the  deficien- 
cy of  assets  over  liabilities  determined  (whidi 
has  in  fact  already  been  done  in  this  caa^, 
as  well  as  determining  in  a  proceeding  like 
that  of  the  pending  petition  the  pnnwrtlonate 
liability  of  all  stockholders  to  meet  such  de- 
ficiency in  such  way  as  to  bind  both  crediton 
and  stockholders  here  and  elsewhere. 

In  Cook  V.  Carpenter,  212  Pa.  165,  61  Aa 
799,  1  L.  R.  A.  (N.  S.)  900,  108  Am.  St.  Rep. 
854,  4  Ann.  Gas.  723,  a  court  of  equity  sus- 
tained its  Jurisdiction  of  a  bill  by  aaslgneee 
of  an  insolvent  company  to  collect  fOr  the 
benefit  of  creditors  of  the  company  unpaid 
capital  because  it  was  a  trust  fund  for  all 
creditors,  who  were  numerous,  whether  the 
proceeding  originates  in  the  name  of  one, 
or  several,  or  of  all  creditors. 

This  present  method  of  enforcing  ddin- 
quent  stockholders'  liability  to  creditors  is 
perfectly  fair,  because  they  have  notice  of 
every  step  taken  in  It.  It  is  equally  benefi- 
cial to  them,  because  it  consolidates  proceed- 
ings, saves  costs  and  expenses,  and  glvei 
each  a  right  to  contest  every  step  including 


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887 


the  rights  of  creditors  and  the  liabilities  of 
the  other  stockholders. 

The  Jurisdiction  of  this  cpurt  to  determine 
In  this  method  the  matters  raised  by  the  pe- 
tition of  the  receivers  Is  therefore  upheM. 

In  reaching  conclusions  as  to  the  other 
qaestlons  In  the  case,  great  weight  has  been 
given  to  the  decisions  of  the  courts  of  New 
Jersey,  because  of  the  practical  Identity  of 
the  language  of  the  statutes  In  the  two 
states,  and  It  is  not  necessary  to  go  so  far  as 
to  hold  that  they  are  binding  as  authorita- 
tive Interpretations  of  a  statute  adopted  by 
this  state  from  New  Jersey.  True  by  the 
New  Jersey  statute  in  insolvency  the  remedy 
against  delinquent  stockholders  on  behalf 
of  creditors  is  expressly  given  to  the  receiv- 
er, and  there  is  no  statement  there  as  to  the 
form  of  the  remedy  to  be  used.  But  as  here- 
in pointed  out,  a  receiver  of  a  Delaware 
corporation  has  the  same  right  inferentially, 
and  the  form  of  the  remed.v  mentioned  in 
the  Delaware  statute  Is  like  that  used  in 
New  Jersey  without  express  statutory  au- 
thority. Interpretations  of  the  New  Jersey 
statute  and  practice  under  it  are  cogent  to 
Influence  the  Delaware  courts  in  like  cases. 

Having  determined  that  the  present  pro- 
ceeding is  a  proper  one,  and  that  the  court 
has  power  to  make  or  authorize  the  assess- 
ment on  delinquent  stockholders  for  the 
benefit  of  stockholders,  it  is  desirable  to 
state  the  general  theory  of  the  character 
of  the  liability  of  such  stockholders  as  dis- 
tinct from  the  procedure  to  enforce  it. 

If  there  were  no  statute  on  the  subject  it 
might  be  Important  to  consider  the  sevemi 
theories  which  have  been  advocated  and 
adopted  as  to  the  origin,  nature  and  extent 
of  the  liability  of  stockholders  to  creditors, 
as  for  instance  whether  the  holding  out  the- 
ory or  the  trust  fund  theory  is  the  correct 
one,  and  if  pertinent  differences  of  impor- 
tance result  then  to  adopt  one  theory  rather 
than  the  other.  Inasmuch  as  there  is  a  stat- 
ute which  Imposes  such  a  liability,  that  is 
a  su£Bcient  source  of  liability  for  the  pur- 
poses of  this  proceeding. 

[t]  All  doubts  as  to  the  character  and  basis 
of  stockholders'  liability  to  creditors  under 
the  law  of  New  Jersey  are  finally  settled  In 
Holcombe  v.  Trenton,  etc.,  Co.,  80  N.  J.  Eq. 
122,  82  Atl.  618  (which  was  afflrmed  by  the 
Court  of  Errors  and  Appeals).  There  the 
court  considered  the  case  of  Donald  v.  Amer- 
ican, etc.,  Co.,  62  N.  J.  Eq.  729,  48  Atl.  771, 
1116,  and  the  remarks  there  of  Judge  Dixon, 
which  were  so  much  discussed  by  counsel, 
and  said  this  as  the  final  words: 

"The  doctrine  that  corporate  stock  issued, 
outstanding  and  unpaid  for  is  a  trust  fund  for 
the  benefit  of  creditors,  is  a  hard  and  fast  rule 
imbedded  in  the  decisions  of  the  courts  of  this 
and  other  states,  and  is  never  relaxed.  In 
this  state  [New  Jersey],  however,  the  stock- 
holder's liability  to  creditors  no  longer  depends 
alone  upon  the  trust  fund  theory,  but  is  held 
to  be  statutory.  Easton,  etc..  Bonk  v.  Amer> 
ican,  etc.,  Co..  70  N.  J.  Eq.  732  [64  Atl.  917, 
I*  B.  A.  <N.  S.)  271.  10  Ann.  Cas.  84]." 


Indeed  in  an  earUer  case  the  Court  ct  Er- 
rors and  Appeals  in  New  Jersey  had  held 
the  same  thing,  viz.:  Easton,  etc.,  Bank  v. 
American,  etc.,  Co.,  where  the  court  said: 

"But  in  this  state  the  stockholders'  liability 
to  creditors  does  not  depend  alone  or  chiefly  up- 
on the  theory  of  'holding  out.'  It  depends  upon 
the  stockholders'  voluntary  acceptance,  for  con- 
sideration touching  his  own  interest,  of  a  statu- 
tory scheme  to  which  watered  stock,  under 
whatever  device  issued,  is  absolutely  a  lien, 
and  which  requires  stock  subscriptions  to  be 
made  good  for  the  benefit  of  creditors  of  insol- 
vent companies,  without  distinction  between 
prior  and  sutMequent  creditors,  or  between  cred- 
itors who  had  notice  and  those  who  had  none." 

The  same  view  was  taken  by  the  United 
States  District  Court  of  Connecticut  in  a 
case  where  the  liability  of  stockholders  nn- 
der  a  statute  of  Connecticut  similar  to  that 
of  New  Jersey  was  being  enforced.  Rosoff 
V.  Gilbert,  etc.,  Co.  (D.  C.)  221  Fed.  972  (1915). 
With  such  convincing  authority  respecting 
statutes  similar  to  the  Delaware  statute  this 
court  is  amply  Justified  in  adopting  the  same 
view  as  to  stockholders  of  a  corporation  cre- 
ated under  the  laws  of  Delaware.  Corporate 
stock  Issued,  outstanding  and  not  paid  for  Is 
a  fund  for  the  benefit  of  creditors,  and  In 
general  all  who  hold  stock  not  paid  for  are 
liable  to  creditors  for  the  amount  so  unpaid. 
Both  the  Constitution  and  statute  define 
what  is  payment 

[7-1]  A  Delaware  corporation  cannot  make 
a  subscription  contract  which  will  free  the 
subscriber  from  the  statutory  liability,  for 
that  statute  Is  notice  to  all  who  make  such 
contracts  and  is  read  into  and  becomes  a 
part  of  every  stock  subscription  contract. 
The  fundamental  principle  Is  that  shares  of 
stock  in  a  corporation  are  a  substitute  for 
the  personal  liability  of  partners,  and  the 
liability  to  pay  for  stock  taken  np  to  the  par 
value  thereof  is  a  fund  for  the  benefit  of 
creditors  of  the  company,  and  whoever  takes 
shares  of  stock  of  a  Delaware  corporation 
assumes  that  liability  for  the  benefit  of 
creditors  in  case  of  insolvency  of  the  com- 
pany. 

Upon  holders  of  preferred  stock,  who  took 
the  shares  pursuant  to  a  subscription  con- 
tract, and  upon  those  who  acquired  shares 
of  common  stock  without  a  formal  subscrip- 
tion, the  statutory  liability  is  of  course  im- 
posed. However  acquired  the  constitution- 
al and  statutory  provisions  as  to  what  con- 
stitutes payment  for  stock  are  part  of  the 
contract,  express  or  implied,  respecting  both 
kinds  of  stock.  As  to  creditors,  there  is  no 
difference  between  the  liability  of  holders 
of  stock  and  subscribers  to  stock,  for  both 
are  liable^ 

"In  equity  and  as  against  creditors,  the  ac- 
ceptance of  stock  without  paying  for  it  places 
the  acceptor  in  the  position  of  a  subscriber." 
See  v.  Heppenheimer,  69  N.  J.  Eq.  36,  78, 
61  Aa.  843,  860  (1905). 

[19,11]  Inasmuch  as  there  is  a  question 
common  to  all  the  holders  of  shares  of  com- 
mon stock,  whether  holders  of  certificates  of 


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101  ATIiAMTIO  REPORTER 


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stock  or  of  certiflcates  of  the  voting  trust, 
that  question  should  be  determined  in  this 
present  proceeding.  The  question  is,  Was 
the  total  Issue  of  common  stock  rightly  is- 
sued as  full  paid  and  uonassessahle  stock  so 
as  to  exempt  all  of  it,  however  held,  from 
assessment  for  creditors?  "Work  done"  is 
an  equivalent  for  money,  and  in  the  absence 
of  actual  fraud  the  Judgment  of  the  directors 
as  to  the  value  of  such  labor  is  conclusive. 
See  section  14  of  the  act 

None  of  the  common  stock  was  paid  for 
In  money,  and  it  Is  not  so  claimed  by  any 
bolder  thereof.  But  It  is  claimed  that  they 
were  issued  for  services,  or  rather  that  they 
were  paid  for  by  services  rendered  and  to  be 
rendered,  and  as  there  is  no  proof  as  to  the 
value  of  the  services  which  were  rendered,  the 
stock  must  be  treated  as  full  paid,  as  it  was 
stated  to  be  on  its  face  when  issued  by  the 
company.  It  may  be  true,  as  between  the 
corporation  and  a  stockholder,  that  shares 
may  be  Issued  for  services  to  be  performed, 
though  even  that  Is  doubtful.  Yineland,  etc., 
Co.  V.  Chandler,  80  N.  J.  Eq.  437,  85  AU. 
213,  Ann.  Cas.  1914A,  679;  Vogeler  v.  Punch, 
206  Mo.  558,  103  S.  W.  1001;  Shannon  v. 
Stevenson,  173  Pa.  417,  34  Atl.  218.  Contra, 
Stevens  v.  Episcc^al,  etc.,  Co.,  140  App.  DIv. 
670,  125  N.  T.  Snpp.  573.  "Work  done"  does 
not  include  promotion  services  performed  be- 
fore incorporation.  Herbert  v.  Duryea,  34 
AK).  IMv.  478,  54  N.  Y.  Supp.  311,  affirmed 
164  N.  Y.  696,  58  N.  E.  1088.  But  when  the 
Interests  of  creditors  are  afTected  "work 
done"  should  not  include  prospective  labor 
as  an  equivalent  for  money  in  exchange  for 
shares  of  stock.  By  a  strict  construction 
"work  done"  does  not  Include  work  to  be 
done,  or  work  done  and  to  be  done. 

Whether  it  be  moral,  legal  or  actual  fraud, 
or  not  fraudulent  at  all,  the  obvious  purpose 
In  issuing  all  the  common  stock  to  Howard, 
Andrews  and  Arclilbald,  as  set  forth  in  the 
resolution  of  the  directors  at  their  first  meet- 
ing on  February  27,  1911,  was  to  give  them 
the  stock  without  their  having  given  the  le- 
gal equivalent  therefor.  The  most  that  could 
be  claimed  for  it  was  that  it  was  Issued  for 
services  rendered  and  to  l>e  rendered,  with- 
out stating  what  part  of  the  $2,900,000.00  of 
common  stock  was  issued  for  past  services 
rendered  and  what  for  future  services  to  be 
rendered.  Furthermore  the  action  as  to  the 
common  stock  was  taken  In  the  earliest  stage 
of  corporate  life,  viz.:  at  the  first  directors' 
meeting  after  the  formal  organization  meet- 
ing, and  at  the  first  time  when  any  business 
was  done  by  the  corporation,  or  any  of  its 
officers  as  such.  When  the  incorporators 
met  on  January  28, 1911,  for  organization  no 
business  was  transacted  except  to  elect  di- 
rectors, and  the  issue  of  common  stock  was 
voted  at  the  first  meeting  of  directors  on 
February  27,  1911,  at  which  meeting  officers 
were  elected.  With  such  scanty  opportunity 
for  heving  done  work  for  the  corporation 


after  its  organization,  and  In  the  absence  of 
any  statement  of  the  character  or  value  of 
such  services  theretofore  rendered,  or  evi- 
dence of  any  valuation  thereof  by  tiie  direc- 
tors, the  issuing  of  $2,900,000.00  worth  of 
stock  for  services  rendered  and  to  be  ren- 
dered was  of  Itself  palpably  indicative  of  an 
intention  to  avoid  the  statute  and  Constitu- 
tion, without  reference  to  the  other  features 
of  the  resolution. 

In  Ellis  V.  Penn  Beef  Co.,  9  Del.  Ch.  213, 
80  Atl.  666,  this  court  refused  to  regard  as 
payment  for  stock  the  alleged  delivery  by 
the  stockholders  to  the  company  of  personal 
property  when  It  appeared  as  a  fact  that 
though  the  property  had  been  delivered  It 
had  not  been  paid  for,  but  was  in  fact  paid 
for  by  moneys  of  the  company  derived  from 
other  sources.  It  was  a  case  of  failure  of 
consideration. 

In  Holcombe  t.  Trenton,  etc.,  Co.,  80  N.  I. 
Eq.  122,  82  Atl.  618,  stock  was  issued  in  fact 
for  services  for  promoters,  and  inasmuch  as 
there  was  not  of  record  any  actual  appraise- 
ment of  the  value  of  such  services  they  were 
not  regarded  as  payment  in  full,  and  the 
stock  so  issued  was  still  subject  to  assess- 
ment for  creditors  as  not  full  paid.  But  in 
fixing  the  liability  of  such  stockholders,  the 
court  would  have  allowed  them  as  credit  on 
the  par  value  of  the  stock  the  reasonable 
compensation  for  services  rendered,  if  such 
proof  had  been  made. 

[12]  In  the  present  case  there  was  no  val- 
uation by  the  directors  of  the  services  of  the 
promoters,  and  there  has  been  no  proof  offer- 
ed as  to  the  value  of  the  services  which  had 
been  rendered  by  Howard,  Andrews  and  Aw*- 
Ibald  at  the  time  of  the  issue  of  the  com- 
mon stock  to  them,  though  opportunity  to  do 
80  was  open  to  the  stockholders.  It  is  read- 
ily seen  that  $3,000,000.00  of  stock  was  sudi 
a  gross  and,  therefore,  unlawful  overvalua- 
tion that  counsel  did  not  pretend  that  there 
was  any  appraisement  by  the  directors,  or  it 
they  had  made  snch  a  valuation  that  any 
sensible  person  would  have  accepted  their 
Judgment  In  the  absence  of  such  proof  it 
is  now  open  to  this  court  to  say  that  the  di- 
rectors have  not  determined  that  three  mil- 
lion of  stock  was  issued  for  work  done,  and 
that  no  value  was  given  by  the  stockholders 
to  the  company  for  the  common  stock.  Of 
course,  it  Is  obvious  that  the  stock  was  to 
be  bonus  stock,  issued  without  value.  There- 
fore, it  Is  Impossible  to  escape  the  conclusion 
that  the  shares  of  common  stock  have  not 
been  paid  for  in  whole  or  part  In  the  hands 
of  the  original  takers,  Howard,  Archibald 
and  Andrews,  they  were  liable  to  assessment 
for  creditors  after  the  enterprise  failed,  and 
the  corporation  became  insolvent  "Holders 
of  bonus  stock  are  always  required  to  pay  for 
their  shares  to  satisfy  the  claims  of  cred- 
itors." Holcombe  v.  Trenton,  etc.,  Co.  (1912) 
80  N.  J.  Eq.  122,  82  Atl.  618,  affirmed  with- 
out opinion  in  82  N.  J.  Eq.  364,  91  Aa  1069- 


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JOHN  W.  COQNEY  CO.  v.  ARLIMOTON  HOTEL  CO. 


An  innocent  purchaser  for  value  who  took 
these  shares,  would  have  been  exempt  from 
liability  to  pay  any  part  of  the  par  value 
thereof. 

[13, 14]  Are  any  of  the  holders  of  common 
Stock  who  have  appeared  In  the  proceeding 
Innocent  purchasers  for  value  without  no- 
tice? Coleman  du  Pont  Is  not,  for  he  was 
present  as  a  director  at  the  meeting  when  the 
resolution  as  to  the  issue  of  the  stock  was 
adopted,  and  voted  for  it  Almost  all  the 
holders  of  preferred  stock  had  notice  that 
the  comipon  stock  bad  not  been  paid  for,  be- 
cause they  received  voting  trust  certificates 
for  bonus  stock,  and  bonus  stock  means  stock 
Issued  gratuitously  and  without  payment 
therefor  being  made  or  expected.  All  to 
whom  the  voting  trust  certificates  were  is- 
sued are  for  the  purposes  of  this  proceeding 
liable  as  though  shares  of  common  stock  to 
which  they  were  entitled  under  the  terms  of 
the  trust  were  actually  Issued  to  them  and 
stood  in  their  names.  The  beneficial  owner 
of  the  stock  held  by  the  voting  trustees  are 
holders  of  the  voting  trust  certificates  and 
no  Interest  In  the  stock  is  held  by  the  trus- 
tees except  such  as  are  necessary  to  enable 
them  to  execute  their  trust.  O'Grady  v.  U. 
B.  etc.,  Co.  (N.  J.)  71  AU.  1040,  21  U  B.  A. 
(N.  S.)  732,  734,  735. 

In  the  case  Just  dted  the  holder  of  a  vot- 
ing trust  certificate  was  regarded  as  the  ben- 
eficial owner  of  the  stock  represented  by  it 
in  the  hands  of  the  voting  trustees,  and  was 
therefore  entitled  to  file  a  bill  for  a  receiver 
of  the  company  as  a  stockholder  thereof, 
though  the  legal  title  be  in  the  trustees.  If 
he  lias  the  right  of  a  stodcholder,  except  to 
vote,  he  is  subject  to  the  liabilities  thereof 
to  creditors  in  case  of  Its  insolvency. 

[1 5]  Here  all  who  took  voting  trust  certifi- 
cates were  put  on  inquiry  respecting  the 
common  stock,  and  were  not  entitled  to  rely 
upon  a  statement  therein  that  It  was  full 
paid.  They  did  not  purchase  their  stodc  in 
the  market,  but  were  subscribers  to  stock  of 
a  new  enterprise  and  took  with  their  pre- 
ferred stock  some  common  stock,  the  prima 
fade  evidence  being  that  thereby  they  knew 
it  was  bonus  stock,  L  e.,  stock  for  which  no 
legal  equivalent  was  given.  There  was  in 
the  resolution  of  the  directors  authorizing 
the  voting  trust  evidence  that  the  common 
stock  was  to  be  given  as  a  bonus  to  sub- 
scribers to  preferred  stock.  The  statement 
on  the  certificate  of  shares  of  common  stock 
that  they  were  full  paid  and  nonassessable 
does  not  relieve  from  liability  to  pay  there- 
for any  holder  or  taker  thereof,  except  those 
without  notice  of  the  fact.  An  agreement 
between  a  corporation  and  its  stockholders 
that  corporate  stock  shall  be  Issued  other- 
wise than  for  money  paid,  or  other  statutory 
equivalent,  is  void.  Easton,  eta.  Bank  v. 
American  Brick  Co.,  70  N.  J.  Eq.  732,  64  Atl. 
917,  8  L.  R.  A.  (N.  S.)  271,  10  Ann.  Cas.  84; 
Holcombe  v.  Trenton,  etc.,  Co.,  80  N.  J.  Eg. 


122,  141,  82  AQ.  618;  Rosoff  v.  Gilbert  Trans- 
portation Co.  (D.  C.)  221  Fed.  972. 

To  establish  the  liability  of  holders  of 
common  stock  it  Is  not  necessary  to  allude 
to  the  suspicion  as  to  the  good  faith  in  the 
transaction  which  arises  when  directors  of 
a  company  make  for  the  company  contracts 
with  themselves  as  promoters  or  otherwise, 
for  the  transaction  is  clearly  shown  to  be  an 
attempt  to  Issue  and  distribute  bonus  stock. 

It  is  held,  therefore,  that  the  common 
stock  was  not  rightly  issued  as  full  paid 
stock,  but  was  Issued  without  value  given, 
and  still  remains  unpaid,  notwithstanding 
the  statement  on  the  face  thereof  to  the 
contrary;  and  further,  that  all  the  original 
takers  of  the  stock  and  holders  of  voting 
trust  certificates  are  prima  fade  liable  as 
holders  of  common  stock,  subject  to  such  in- 
dividual defenses  as  properly  exist. 

Furthermore^  there  is  evidence  that  the 
common  stock  was  Intended  from  the  first  to 
be  bonus  stock.  In  the  certificate  of  incor- 
poration it  was  declared  that  it  should  be 
nonassessable  and  full  paid.  At  the  first 
meeting  of  the  directors,  and  before  any- 
thing had  been  done  by  the  corporation  ex- 
cept the  most  formal  organization  acts,  and 
before  any  payments  could  have  been  made 
on  any  stock,  it  was  voted  that  the  certifi- 
cates of  common  stock  when  printed  should 
state  that  they  were  nonassessable  and  full 
paid.  The  form  of  subscriptions  received  for 
the  preferred  stock  referred  to  the  plan  fot 
floating  the  new  enterprise  was  by  preferred 
and  common,  the  latter  to  be  nonassessable. 
All  this  was  quite  consistent  with  the  plan 
to  issue  common  stodc  which  could  not  be  as- 
sessed for  the  purposes  of  the  company,  and 
as  to  which  the  directors  could  not  make 
calls  for  payment  in  installments  or  other- 
wise. In  other  words,  it  was  to  be  honus 
stock.  The  conduct  of  the  directors  in  issu- 
ing all  the  stock,  nearly  three  million  dollars 
of  it  as  full  paid  and  nonassessable  for  serr- 
ices  performed  and  to  be  performed,  is  all 
consistent  with  this  theory  of  the  purpose  of 
the  promoters  of  the  CMnpeny  respecting  the 
common  stock.  The  law  of  Delaware  dedar^ 
ed  that  purpose  to  be  Impossible  of  executioa> 
All  who  took  certificates  for  common  stodc 
were  put  on  inquiry  and  notice  of  its  char- 
acter. 

[16-29]  It  has  been  claimed  that  the  com- 
pany bad  no  right  to  issue  preferred  stock. 
One  of  the  subscribers  to  ten  shares  of  pre- 
ferred stodt,  Z.  D.  Blackistone,  who  paid  one 
hundred  and  fifty  dollars  on  account  there- 
of, claims  that  he  Is  not  liable  to  pay  the 
balance  of  his  subscription,  on  the  ground 
that  the  company  had  no  power  to  accept 
subscriptions  for  or  issue  preferred  stock. 
This  contention  is  based  on  section  13  of  the 
act,  which  provides  a  way  by  which  shares 
of  stock  could  be  classified  into  common  and 
preferred  stock  with  a  proviso  that  "at  no 
time  shall  the  total  amount  of  the  preferred 
stock  exceed  two-thirds  of  the  actual  capital 


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paid  In  cash  or  property."  It  is  claimed  that 
no  actual  capital  was  paid  to  the  company 
In  cash  or  property,  all  the  common  stoek 
having  been  issued  for  services  rendered  and 
to  be  rendered,  and  none  of  It  actually  paid 
for.  All  of  the  preferred  stock,  it  is  claimed, 
is  overissued  stock,  spurious,  illegal  and  void, 
and  there  can  be  no  estoppel  even  in  favor 
of  creditors.  Blackistone  was  not  the  holder 
of  common  stock,  and  did  not  receive  any 
voting  trust  certificates. 

Tills  defense  is  certainly  not  available  to 
any  holder  of  or  subscriber  for  preferred 
gtock  who  received  common  stock  as  a  bonus, 
or  who  received  voting  trust  certificates  with 
their  preferred  stock.  If  one  subscribes  to 
preferred  stock  under  a  plan  by  which  sul>- 
scribera  for  preferred  stock  are  given  shares 
of  common  stock  as  a  bonus,  and  so  knew 
that  no  value  was  given  for  the  common 
stock.  It  would  t>e  grossly  inequitable  to  deny 
creditors  of  the  company  after  It  becomes 
insolvent  a  right  to  hold  preferred  stock- 
holders liable  on  their  subscriptions  to  or 
holdings  of  preferred  stock  for  whatever  re- 
mains unpaid  thereon.  By  taking  the  bonus 
Bto<^  they  know  that  the  only  source  from 
which  the  company  may  obtain  caidtal  is 
from  the  preferred  stock.  They  know  this 
and  the  creditors  may  or  may  not,  and  the 
latter  are  entitled  to  rely  on  the  amount  un- 
paid on  the  preferred  stock  up  to  the  par 
thereof  as  a  fund  for  the  payment  of  their 
claims  against  the  company. 

Those  holders  of  preferred  stock  who  took 
voting  trust  certificates  are  In  the  same 
position,  for  they  are  put  on  inquiry,  and 
an  Inquiry  would  have  shown  that  the  issue 
of  all  of  the  common  stock  was  ordered  at 
the  first  meeting  of  the  directors,  and  the 
voting  trust  was  also  arranged  for  at  that 
meeting. 

By  use  of  the  word  "capital"  instead  of 
the  words  "capital  stock,"  the  section  does 
more  than  fix  the  proportion  between  com- 
mon and  preferred  stock.  "Capital"  means 
property  and  "capital  stock"  means  the  ag- 
gregate of  the  interests  of  the  stockholders 
In  the  property  of  the  company  after  its  debts 
are  paid. 

In  Person,  etc.,  Co.  v.  Llpps,  219  Pa.  99,  67 
Atl.  1081,  where  a  company  incorporated  un- 
der the  laws  of  New  Jersey  had  sued  a  sub- 
scriber for  preferred  stock,  and  the  defense 
was  that  made  by  Blackistone,  the  court  add- 
ed into  the  appraised  value  of  the  property 
of  the  company  the  par  value  of  the  common 
stock  Issued  to  the  defendant  Llpps  and 
another,  in  order  to  ascertain  whether  the 
requirements  of  the  statute  were  complied 
with,  though  it  did  not  appear  that  the  com- 
mon stodt  had  been  paid  for.  The  corpora- 
tion in  this  case  was  a  New  Jersey  company, 
where  the  provision  in  question  was  at  the 
time  the  same  as  the  Delaware  statute,  and 
Is  the  only  one  dted  or  found  to  be  interpre- 
tative of  the  act.  So  far  as  it  goes  the  case 
dted  is  opposed  to  the  contention  made  for 


Blackistone.  The  basis  of  the  contention 
must  necessarily  have  been  that  the  corpora- 
tion was  absolutely  without  power  to  issue 
any  preferred  stock,  for  If  it  had  power  to 
do  so  and  exercised  it  InefTectively  or  Infor- 
mally, then  the  stockholders  taking  the  stock 
would  be  estopped  as  against  a  creditor. 
This  principle  Is  recognized  In  Loredo,  etc., 
Co.  r.  Stevenson,  66  Fed.  633, 13  C.  O.  A.  661, 
cited  by  counsel  for  Blackistone. 

Cases  of  overissue  of  stock  were  dted  to 
sui^iort  the  contention.  In  such  cases  the 
courts  say  creditors  may  know  when  stock 
is  overissued,  and  so  cannot  daim  to  have 
been  deceived.  For  the  same  reason  credi- 
tors have  a  right  to  assume  that  all  the  com- 
mon stock  Issued  was  paid  in  cash  or  prop- 
erty, and  so  had  a  right  to  assume  that  the 
proper  proportion  between  common  and  pre- 
ferred stock  was  thereby  maintained.  TlM 
provision  In  section  13  that  "in  no  event 
shall  a  holder  of  preferred  stock  be  personal- 
ly liable  for  the  debts  of  the  corporation," 
does  not  exempt  holders  of  preferred  stodc 
from  calls  or  assessments  up  to  the  par  val- 
ue for  creditors,  but  was  Intended  to  exempt 
them  only  from  liability  beyond  the  par  value 
for  the  needs  of  creditors  in  insolvency  as 
stated  in  section  20,  which  relates  to  all 
shareholders  without  regard   to  classes. 

The  amount  of  capital  paid  in  cash  or  prop- 
erty fiuctuates  and  the  proportion  of  classes 
of  stock  fluctuates  accordingly.  It  is  im- 
posing on  creditors  too  great  a  burden  to 
expect  them  to  know  whether  the  proportion 
has  been  always  maintained.  If  sometimes 
not  maintained,  then  is  all  common  stock 
before  or  thereafter  issued  void?  A  strict 
interpretation  of  the  statute  involves  possible 
entanglements  of  Interests.  A  safer  rule  is 
to  permit  creditors  to  look  to  subacrlptlons 
or  holdings  of  common  stock  as  equal  to  pay- 
ment in  cash  or  property  for  the  purposes 
of  determining  the  proportion  to  be  observed 
between  common  and  preferred  stock. 

[21]  It  is  contended  by  some  of  the  stock- 
holders that  subscribers  to  the  preferred 
stock  must  be  required  to  pay  the  balance 
of  their  subscriptions  before  the  holders  of 
common  stock  can  be  called  on  to  pay  any- 
thing, and  this  is  based  <«  the  statemoit 
that  the  amount  due  on  the  subscriptions 
arises  from  a  contract  with  the  company  and 
is  therefore  an  asset  of  the  company  whldi 
must  be  collected  before  the  statutory  con- 
tingent liability  is  enforced.  But  there  Is 
no  foundation  for  the  contention.  In  case  of 
insolvency  all  the  money  due  from  all  kinds 
of  stockholders  constitute  the  trust  fund  for 
creditors,  and  the  statute  makes  no  differ- 
ence between  the  several  kinds  of  stock.  The 
liability  arises  from  the  relationship  of  the 
stockholder,  whether  It  be  created  by  con- 
tract or  be  implied  from  ownership  of  shares. 

[22]  It  is  contended  for  some  of  the  stodc- 
holders  that  the  assossment  cannot  be  made 
for  the  benefit  of  those  creditors  who  at  the 
time   of  extending   credit   to   the  company 


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JOHN  W.  COONEY  CO.  v.  ARLINGTON  HOTEL  00. 


891 


knew  the  drciimstances  as  to  the  Issue  of  the 
common  stock,  tIz.:  That  it  was  issued  in 
payment  for  services  rendered  and  to  be  ren- 
dered, and  as  full  paid.  There  was  evidence 
ottered  to  show  such  knowledge  on  the  part 
of  some  of  the  creditors  who  have  filed 
claims,  and  who  will  be  benefited  by  an  as- 
sessment when  made  and  collected. 

This  may  not  be  the  time  to  ascertain  the 
facts  as  to  such  knowledge,  for  those  credi- 
tors are  not  directly  present  In  this  proceed- 
ing. They  are  here  represented  by  the  re- 
ceivers, and  have  had  no  notice  of  the 
contention  against  them,  or  opportunity  to 
defend  themselves  against  it.  Furthermore, 
it  may  be  that  these  matters  may  better  be 
passed  on  when  the  fund  for  creditors  has 
been  gathered  in  and  its  distribution  is  open 
to  adjustment  This  seems  to  be  the  view 
of  the  court  in  the  case  cited  by  the  solicitor 
tor  the  receivers.  Sellg  v.  Hamilton,  234  U. 
8.  652,  666,  34  Sup.  Ct.  026,  68  L.  Ed.  1618, 
Ann.  Cas.  1917A,  104. 

Bnt  inasmuch  as  the  right  of  such  credi- 
tors to  look  to  the  stockholders  for  payment 
of  their  claims  has  been  much  discussed,  and 
the  determination  of  the  question  probably 
has  an  important  bearing  on  the  rate  of  as- 
sessment to  be  made  (if  any  be  made)  it  will 
be  considered  now. 

In  New  Jersey  it  is  settled  beyond  contro- 
versy that  creditors  having  at  the  time  of 
giving  credit  notice  that  shares  of  stock  were 
issued  as  full  paid  when  In  fact  not  paid  for, 
or  who  are  otherwise  aware  of  the  drcnm- 
stances  under  which  bonus  stock  was  issued, 
may  still  look  to  all  holders  of  such  stock 
(except  innocent  holders  thereof)  for  pay- 
ment of  debts  due  from  the  company  to  such 
creditors. 

It  was  so  held  by  the  Court  of  Errors  and 
Appeals  in  the  case  of  Easton,  etc..  Bank 
V.  American  Brick,  etc.,  Co.,  70  N.  J.  Eq. 
732,  64  AtL  917,  8  L.  R.  A-  (N.  S.)  271,  10 
Ann.  Cas.  84  (1905),  after  considering  many 
cases  in  other  Jurisdictions  in  many  of  which 
states  the  liability  of  delinquent  stockhold- 
ers was  not  statutory.  The  court  relied  on 
the  fact  that  liability  in  New  Jersey  was 
statutory.  It  was  also  intimated  that  inde- 
pendent of  the  statute  creditors  with  notice 
of  the  irregularity  might  still  be  Justified  In 
regarding  the  stockholders'  liability  as  an  as- 
set of  the  company  for  the  purpose  of  satis- 
fying creditors.  There  is  much  in  this  con- 
tention, and  it  may  well  be  a  proper  basis 
for  a  decision  on  the  point  But  the  New 
Jersey  court  did  not  rely  on  it  entirely.  This 
same  rule  was  held  in  Holcombe  v.  Trenton, 
etc.,  Co.  (1912)  80  N.  J.  Eq.  122,  82  Atl.  618, 
a  later  case  in  the  Court  of  Chancery,  which 
was  aflBrmed  without  an  opinion  by  the  Court 
of  Errors  and  Appeals,  82  N.  J.  Eq.  364,  91 
Atl.  1069. 

The  same  point  was  decided  by  the  United 
States  District  Court  in  Connecticut  In  a 
case  respecting  a  Connecticut  corporation, 
the  statute  of  Connecticut  being  "quite  simi- 


lar," as  the  court  said,  to  the  New  Jersey 
statute,  viz.:  In  Rosoff  v.  Gilbert  Transporta- 
tion C!o.  (D.  C.)  221  Fed.  972  (1915): 

"There  is  no  suggestion  [in  the  statute]  that 
certain  creditors  can  enforce  this  liability  and 
that  certain  other  creditors  cannot.  The  stat- 
ute clearly  contemplates  that  all  creditors  are 
entitled  to  be  paid,  and  that  stockholders  are 
bound  to  pay  them  if  the  stock  held  by  them 
has  not  been  paid    •    ♦    ♦    in  fuU." 

In  GlUet  V.  Chicago,  etc,  Co.,  230  lU.  373, 
82  N.  E.  891,  which  followed  Sprague  v.  Na- 
tional Bank  of  America,  172  IlL  149,  50  N. 
B.  19,  42  L.  R.  A.  606,  64  Am.  St  Rep.  17,  the 
same  view  was  taken  of  the  Illinois  statute, 
similar  to  New  Jersey  and  Delaware,  which 
gave  the  right  to  creditors,  against  unpaid 
stock. 

[2S,  24]  Another  question  affects  the  rate  of 
the  assessment.  Some  of  the  stockholders 
who  are  liable  to  assessment  are  also  credi- 
tors of  the  company.  Have  they  a  right  to 
set  off  the  amount  with  which  they  will  be 
assessed  against  the  debts  due  them  from  the 
company?  This,  too,  is  settled  In  New  Jet^ 
sey.  They  will  be  required  to  pay  the  as- 
sessment and  share  in  the  fund  when  real- 
ized. See  V.  Heppenheimer,  supra;  Hol- 
combe V.  Trenton,  etc.,  Co.,  supra ;  and  other 
cases  in  New  Jersey.  So  also  stockholdera 
who  took  stock  with  notice  of  the  irregulari- 
ties as  to  the  issue  thereof  and  who  are  also 
creditors  of  the  company  are  not  estopped 
from  participating  as  creditors,  after  they 
have  paid  the  assessment  against  their  shares. 
Easton,  eta.  Bank  t.  American  BAck,  etc., 
Co.,  supra. 

[2S]  In  July,  1913,  the  company  made  a  call 
upon  holders  of  preferred  stock  to  pay  the 
amounts  due  on  the  shares  subscribed  for. 
Does  this,  of  itself,  bar  this  court  from  mak- 
ing a  call  or  assessment  in  this  case  in  this 
proceeding?  In  the  case  of  Brown  v.  Alle- 
bach  (C.  C.)  166  Fed.  488,  406,  it  was  held 
that  a  receiver  may  collect  amotmts  due  on 
unpaid  stock  even  though  a  call  had  been 
levied  by  the  directors  of  the  company  whUe 
it  was  a  going  concern,  and  even  though 
suits  by  the  company  to  enforce  the  call  were 
still  pending.  This  view  is  manlfesOy  a 
sound  one. 

[26]  Should  the  assessment  be  made 
against  all  delinquent  stockholders,  whether 
solvent  or  insolvent,  and  whether  residents 
of  Delaware,  or  not? 

There  Is  ample  authority,  as  well  as  good 
reason,  for  excluding  the  Insolvent  stock- 
holders, and  the  reasons  are  obvious.  Rosoff 
V.  Gilbert  Transportation  Co.  (D.  C.)  221  Fed. 
972.  In  this  particular  proceeding  It  is  not 
an  important  matter,  for  there  ia  no  clear 
and  satisfactory  proof  that  any  of  those  de- 
faulting shareholders  on  the  list  submitted  by 
the  receivers  are  insolvent,  except  one  J.  Wil- 
liam Henry,  a  subscriber  to  shares  of  pre- 
ferred stock  of  par  value  of  $2,250,  and  who 
was  proved  to  have  been  adjudicated  a  bank- 
rupt since  making  the  subscription.  None 
of  the  stockholders  of  either  class  will  be  ex- 


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101  ATLANTIC  REPORTER 


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eluded  from  the  assessment  on  account  of 
flnaucial  Inability  to  respond  thereto,  except 
J.  WllUam  Henry. 

[27]  There  is  ample  authority  for  the  prop- 
osition that  under  a  statute  Identical  with 
the  Delaware  statute  the  whole  assessment 
may  be  made  against  delinquent  stockholders 
within  the  Jurisdiction,  with  a  right  to  those 
who  pay  to  enforce  contribution  from  other 
stockholders,  and  for  ttiia  latter  purpose  to 
use  the  proceeding  in  which  the  assessment 
Is  made.  See  v.  Heppenheimer,  69  N.  J.  Eq. 
36,  61  Atl.  843;  Holcombe  t.  Trenton,  etc., 
C!o..  80  N.  J.  Eq.  122,  82  Atl.  618;  Wolcott  t. 
Waldstein  (1916)  83  N.  J.  Eq.  63,  97  Atl.  951. 
It  Is  said  that  the  liability  of  stockholders  to 
creditors  is  analogous  to  that  of  joint  gran- 
tors, and  therefore  the  above  stated  principle 
applies.  The  application  of  this  principle  to 
this  case  will  be  considered  later. 

[28]  The  defense  of  the  statute  of  limita- 
tions is  also  raised  so  far  as  the  liability  of 
holders  of  preferred  stock  is  concerned.  It 
is  claimed  tliat  on  July  15,  1913,  the  holders 
of  preferred  stock  were  called  on  by  vote  of 
the  directors  to  pay  the  balance  of  their 
subscriptions  on  or  before  September  15, 
1913,  and  that  the  statute  then  began  to  run, 
and  if  it  be  a  bar  against  the  corporation  it 
Is  also  a  bar  against  the  receivers  acting  on 
belialf  of  the  corporation's  creditors.  This 
defense  is  dearly  one  to  be  raised  when  suits 
are  brought  against  the  stockholders  after 
the  assessment  and  It  seems  to  be  so  settled 
in  such  cases.  Therefore  no  oi)inion  is  ex- 
pressed on  this  point. 

[29]  Should  the  creditors  of  the  company 
who  have  proved  their  claims  be  allowed  in 
addition  thereto  interest  as  against  the  stock- 
holders? Aa  against  the  assets  of  an  insol- 
vent company  when  its  affairs  are  being  ad- 
ministered by  a  chancery  receiver,  interest 
is  not  allowed  beyond  the  date  of  the  ap- 
pointment of  the  receiver,  except  on  liens 
wlilch  bear  interest.  This  Is  the  practice  in 
this  court,  as  fixed  by  the  rules  of  court.  In 
a  sense  the  contingent  statutory  liability  of 
stockholders  to  oori>oration  creditors  is 
analogous  to  other  assets  of  the  company. 
But  I  am  Inclined  to  the  view  that  the 
stockholders'  liability  has  elements  which 
Justify  charging  them  with  a  duty  to  con- 
tribute enough  to  pay  Interest  to  creditors. 
Interest  is  denied  by  the  rules  of  court  as  an 
administrative  measure,  because  If  there  is 
not  enough  of  assets  to  pay  all  the  principal 
the  addition  of  interest  does  not  increase  the 
dividends.  In  case  the  assets  should  turil 
out  to  be  sufficient  to  pay  Interest,  as  well  as 
the  principal  of  claims,  there  is  good  reason 
why  creditors  should  have  it. 

Therefore,  as  against  stockholders,  cred- 
itors are  entitled  to  have  Interest  calculated 
on  their  claims.  This  is  the  prevailing  prac- 
tice in  other  Jurisdictions,  though  no  reason 
seems  to  have  been  given  by  the  courts  else- 
where for  allowing  it. 

Without  undertaking  to  calculate  the  exact 


amount  of  interest  on  eacb  claim  to  a  fixed 
date,  it  is  sufficient  for  the  present  purposes 
to  estimate  the  aggregate  of  interest  If  in- 
terest  for  five  years  be  allowed,  it  will  ap- 
proximately be  sufficient  for  alL  Interest  at 
six  per  cent  on  $466,739.42  for  Ave  years  is 
about  $140,000.00.  That  sum  is  therefore  to 
be  added  to  the  principal,  and  estimated  ex- 
penses, and  makes  the  grand  total  to  be  as- 
sessed i.706,739.42. 

[30,  SI  ]  The  general  theory  as  to  what 
should  be  determined  by  the  court  in  a  pro- 
ceeding such  as  this  is  well  settled.  It  is 
there  determined  that  an  assessment  is  nec- 
essary, which  involves  a  judicial  determina- 
tion of  the  exhaustion  of  the  assets  of  the 
company,  the  adjudication  of  the  claims  of 
the  creditors  and  the  aggregate  of  the 
amounts  due  to  them.  To  this  is  added  the 
costs  of  the  receivership  in  collecting  the  as- 
sessment including  counsel  fees  and  legal 
expenses  in  suits  against  stockholders,  and 
compensation  to  the  receivers.  These  latter 
items  are  necessarily  estimated,  and  are  liable 
to  reduction  according  to  the  conduct  oC 
stockholders  in  resisting  payment  As  to  all 
these  matters,  and  perhaps  others,  8to<&- 
holders  are  so  far  an  integral  part  of  the  cor- 
poration that  in  the  view  of  the  law  they  are 
to  tliat  extent  privy  to  proceedings  by  a  re- 
ceiver of  an  insolvent  company  on  behalf  of 
Its  creditors  to  enforce  payment  for  stock 
not  paid  for,  and  cannot  question  the  propri- 
ety of  the  assessment  when  mad&  Cumler- 
land,  etc..  Co.  v.  Clinton,  57  N.  3.  Eq.  627, 
42  Atl.  585;  s.  c.,  64  N.  J.  E]q.  517,  64  AtL 
450;  Oilson  v.  Appleby,  79  N.  J.  Eq.  690.  81 
AtL  925;  Wolcott  V.  Waldstein  (1916)  83 
N.  J.  Eq.  63,  97  AtL  951.  This  Is  true 
whether  the  stockholders  have  or  have  not 
had  notice  of  the  proceeding  (Brown  v.  Alle- 
bech  [C.  C]  156  Fed.  697),  though  that  Is 
not  important  in  this  case. 

This  court  having  ascertained  the  amount 
necessary  to  be  raised  must  also  ascertain 
who  the  delinquent  shareholders  are,  the 
number  of  shares  held  by  them  respectively, 
and  the  balance  due  from  each  up  to  the  par 
value  of  the  stock  held  by  them.  It  is  not 
quite  clear  as  to  the  Imgth  to  which  the 
court  should  go  in  this  latter  respect,  or  as 
to  the  character  of  the  tndividoal  defenses 
whidi  a  stockholder  may  set  up  when  sued 
by  the  receivers  for  the  assessment  madtt 
against  him.  If  the  receivers  show  from  tbe 
books  of  the  company  the  above  facts,  they 
have  made  out  a  case  wltlch  enables  the 
court  to  fix  the  liability  to  be  imposed  on 
each  stiare  of  rtock,  so  that  the  receivers  are 
entitled  to  test  by  suit  the  status  of  persons 
supposed  to  be  stodcholders  and  thdr  liabil- 
ity for  the  particular  amount  assessed 
against  them  pursuant  to  the  rate  as  fixed 
by  the  court  This  is  the  view  stated  in 
Cumberiand,  etc.,  Co.  v.  Clinton,  etc.,  Co.,  G4 
N.  J.  Eq.  517,  54  Atl.  450  (1903). 

Having  disposed  of  all  the  questions  rais- 
ed which  relate  to  all  of  the  creditom  or  to  the 


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893 


stockholders  as  a  class  or  to  classes  thereof, 
It  will  be  necessary  to  consider  some  Bpeclal 
defenses  which  have  been  raised. 

[32]  Ooleman  dn  Pont,  who  was  a  subscrib- 
er to  preferred  stoct  and  In  whose  nEune 
shares  of  common  stock  stand  as  the  owner 
thereof,  by  his  answer  to  the  petition  claims 
a  credit  on  the  preferred  stock  of  $101,650.00 
paid  thereon,  and  that  the  common  stock  in 
his  name  was  not  acquired  from  the  compa- 
By,  but  was  assigned  to  him  for  a  valnable 
consideration  and  upon  representation  by 
the  company  that  the  same  was  full  paid  and 
nonassessable.  He  also  says  that  on  July 
15,  1913,  a  call  for  $103,350.00,  the  balance 
of  his  subscription  to  preferred  stock,  was 
made  by  the  company,  and  that  any  claim 
now  made  by  the  receivers  for  such  balanco 
is  barred  by  the  statute  of  limitations. 
There  were  other  defenses  set  up  in  the  an- 
swer, wMch  are  applicable  to  all  holders  of 
both  kinds  of  stock,  and  these  general  de- 
fenses have  already  been  disposed  of. 

It  was  also  shown  at  the  hearing  that  on 
bis  subscription  In  wrlUng  to  the  $480,000.00 
of  preferred  stock  a  notation  made  by  him, 
the  efTect  of  which  was  to  release  him  'roiu 
an  obligation  to  pay  the  amount  subscribed 
for  in  case  the  money  received  from  the  sub- 
scriptions made  by  other  pers<His  amounted 
to  $125,000.00,  and  that  as  this  event  happen- 
ed, he  was  under  no  further  liability  on  his 
snbBcrlptlon.  And  also  that  by  a  subsequent 
resolution  of  the  directors  of  the  Arlington 
Hotel  Company  he  was  released  from  that 
obligation. 

As  has  been  stated  above,  the  defense  of 
the  statute  of  limitations  is  not  passed  on  In 
this  proceeding.  Notwithstanding  the  fact 
that  some  testimony,  Including  some  produc- 
ed on  behalf  of  Mr.  du  Pont,  was  heard  on 
these  several  individual  defenses,  and  how- 
ever desirable  It  be  to  have  the  liability  of 
this  particular  holder  of  a  large  number  of 
shares  of  both  kinds  of  stock  determined  be- 
fore an  assessment  Is  made  by  this  court, 
or  pursuant  to  its  authority,  and  to  have  dis- 
posed of  all  questions  affecting  such  liability, 
still  all  of  these  defenses  particularly  assert- 
ed by  and  on  behalf  of  Mr.  du  Pont  come 
within  the  class  of  defenses  which  by  the 
settled  practice  are  not  properly  adjudicat- 
ed In  this  proceeding,  but  are  available  as 
defenses  to  suits  brought  by  the  receivers  In 
case  an  assessment  is  authorized.  Further- 
more, these  personal  defenses  were  not  only 
not  set  np  by  his  answer  to  the  petition  of  the 
receivers,  but  were  expressly  reserved  therein 
In  general  terms. 

Therefore,  and  for  these  reasons,  no  opin- 
ion Is  expressed  as  to  the  particular  defenses 
above  mentioned.  It  Is  found  that  Coleman 
du  Pont  subscribed  for  $480,000.00  of  prefer- 
red stock,  and  on  the  books  Is  the  holder  of 
$971,000.00  of  common  stock;  and  that  as  ad- 
mitted by  the  receivers,  there  Is  a  credit  on 
the  subscription  to  preferred  stock  of  $75,- 
000.00.     Whether  he  paid,  or  was  entitled 


to  any  further  credits  thereon,  or  whether 
the  other  Individual  defenses  mentioned  were 
good,  Is  not  decided. 

[33]  William  H.  Fenn,  in  addition  to  some 
defenses  open  to  all  holders  of  common  stodk, 
sets  out  some  special  grounds  of  defense, 
which  are  personal  to  him  and  will  not 
therefore  be  considered.  Under  the  latter 
head  Is  the  representation  In  his  answer  that 
In  order  to  qualify  him  as  director  a  cer- 
tlflcate  for  one  hundred  shares  of  common 
stock,  marked  as  full  paid  was  Issued,  exhib- 
ited to  him,  and  an  assignment  thereof  was 
endorsed  thereon ;  that  he  had  not  and  never 
had  the  certificate  In  his  possession;  and 
did  not  and  does  not  know  whether  or  not 
they  were  in  fact  full  paid,  except  as  It  was 
so  endorsed.  This  defense,  or  these  defenses, 
are  available  to  him  when  sued  for  the  as- 
sessment when  made,  and  are  not  here  de- 
cided. 

It  may  be  well  to  here  call  attention  to 
the  view  of  the  present  Chancellor  In  an- 
other case,  which  Indicates  that  Mr.  Fenn 
did  not  relieve  himself  of  liability  In  this 
present  proceeding  by  assigning  the  shares 
of  common  stock  which  had  been  transferred 
to  him  to  qualify  htm  to  be  a  director  of 
the  company. 

Recently  this  court  has  announced  the  view 
that  when  one  takes  shares  of  stock  of  a 
corporation  In  order  to  qualify  him  to  be  a 
director  of  the  company,  he  thereby  holds 
himself  out  as  being  the  owner  of  the  stock 
In  his  own  right,  and  cannot  escape  liability 
as  the  record  owner  of  the  stock  for  an  as- 
sessment made  thereon  for  the  benefit  of 
creditors  of  the  company  by  showing  that  he 
never  had  a  beneficial  interest  in  the  stock, 
but  held  It  as  the  agent  for  another,  to 
whom  he  had  delivered  the  certificate  for 
the  shares  of  stock  with  a  transfer  thereof 
endorsed  thereon.  This  was  so  decided  in  a 
proceeding  by  the  receiver  of  Securities  Com- 
pany of  North  America,  a  dissolved  corpora- 
tion, to  enforce  for  the  benefit  of  creditors 
the  liability  of  stockholders  to  pay  In  full  for 
their  shares  of  stock  where  the  question 
arose  respecting  stock  standing  on  the  books 
of  the  company  In  the  name  of  William  M. 
Pyle,  a  director  of  the  company.  Fell  v. 
Securities  Co.  of  North  America,  Court  of 
Chancery,  New  Castle  County,  1917,  100  Atl. 
788,  not  yet  officially  reported. 

As  Mr.  Fenn  Is  the  record  owner  of  the 
stock  not  paid  for,  the  receivers  have  made 
out  such  a  case  as  to  Justify  the  court  In  In- 
cluding his  name  as  one  of  the  stockholders 
liable  to  assessment,  leaving  his  spedal  de- 
fenses to  be  settled  in  the  suit  to  be  brought 
by  the  receivers. 

Albert  I*  Stavely  does  not  set  up  any  de- 
fense not  already  considered,  and  denies  all 
allegations  as  to  the  common  stock,  and  has 
paid  in  full  for  his  subscription  to  preferred 
stock.  His  answer  does  not  at  this  time  re- 
quire further  particular  consideration  by 
this  court. 


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894 


101  ATIiANTIO  REPORTER 


(Del. 


Murray  A.  Cobb  denies  being  a  stockhold- 
er, though  he  served  as  director  for  a  while 
and  then  resigned,  or  attempted  to  resign. 
But  he  appears  of  record  to  be  a  holder  of 
ten  shares  of  common  stock  not  paid  for,  and 
his  particular  defense  will  not  be  passed  on 
here,  but  will  be  available  to  him  elsewhere, 
and  probably  the  same  principles  applicable 
to  Mr.  Fenn's  liability  would  apply  to  that 
of  Mr.  Cobb,  both  of  whom  took  shares  to 
qualify  them  as  directors. 

For  the  purposes  of  making  this  assess- 
ment, the  following  conclusioDS  have  been 
reached: 

(1)  That  the  company  is  insolvent;  that 
Its  debts  whldi  are  unpaid  aggregate  $466,- 
739.42;  that  the  interest  to  whidi  creditors 
will  be  entitled  will  probably  aggregate  $140.- 
000.00;  that  the  costs  and  exi>ense8  of  the 
receivership  and  of  collecting  the  assessment, 
including  compensation  to  the  receivers  and 
their  legal  counsel,  may  be  estimated  at 
1100,000.00;  and  that  the  aggregate  to  be 
assessed  apon  and  collected  from  the  stock- 
holders who  are  liable  therefor  is  $706,- 
739.42. 

(2)  That  those  liable  to  assessment  as  sub- 
acrlbers  to  preferred  stock,  and  the  amounts 
on  which  they  are  liable  to  assessment  ag- 
gregating $479,210.00,  are  as  follows  (J.  Wil- 
liam Henry,  the  bankrupt,  being  omitted 
therefrom):  [List  of  holders  of  preferred 
stock.] 

(3)  That  those  liable  to  assessment  as  hold- 
ers of  common  stodt.  Including  those  hold- 
ing voting  trust  certificates,  and  the  amounts 
to  which  they  are  liable  to  assessment,  ag- 
gregating $3,000,000.00,  are  as  follows: 
[Ust  of  holders  of  common  stock.] 

Upon  whom  and  in  what  proportions 
should  the  assessment  be  made?  The  amount 
to  be  raised  being  thus  fixed,  and  the  names 
of  the  delinquent  stockholders  and  the 
amounts  due  from  them  severally  having 
been  thus  settled,  it  remains  to  be  decided  as 
to  who  of  them  shall  now  be  called  on  to  bear 
the  burden  and  the  proportions  in  which  it 
shall  be  borne.  This  is  not  an  easy  problem, 
and  there  seems  to  be  no  precedent  to  guide 
the  court 

There  are  eight  distinct  groups  Into  which 
the  stockholders  may  be  arranged,  viz.: 

(1)  Subscribers  to  preferred  stodc  who 
have  paid  in  full  for  that  stock  and  who  also 
hold  bonus  common  stock  through  the  voting 
trust 

(2}  Subscribers  to  preferred  stock  who 
have  paid  in  part  for  that  stock  and  who  owe 
balances  in  varying  proportions,  and  who 
also  hold  bonus  common  stock  through  the 
voting  trust  or  otherwise. 

(3)  Subscribers  to  preferred  stock  who 
have  paid  nothing,  and  who  hold  bonus  com- 
mon stock. 

(4i)  Subscribers  to  preferred  stock  who 
have  paid  nothing  and  who  do  not  hold  com- 
mon stock. 

(6!)  Subscribers   to  preferred   stock   who 


have  paid  in  part  only  for  that  stock,  and 
who  do  not  hold  common  stock. 

(6)  Subscribers  to  preferred  stock  who  paid 
in  full  and  who  hold  common  stock  not  by 
the  voting  trust 

(7)  Holders  of  common  stock  only. 

(8)  Holders  of  common  stock  and  holders 
of  voting  trust  certificates,  and  who  had  paid 
nothing  on  either  kind  of  stodt  The  only 
person  in  this  class  is  Charles  P.  Taft,  who 
holds  $1,000.00  of  common  stock  and  $50,- 
000.00  of  voting  trust  certificates. 

One  simple  method  of  assessm^it  is  this: 
The  total  to  be  raised  being  about  $706,000.00. 
and  the  aggregate  of  the  liabilities  of  both 
preferred  and  common  stockholders  being 
about  $3,479,000.00  (J.  William  Henry  the 
bankrupt  holder  of  $2,250.00  of  preferred 
stock  being  omitted),  an  assessment  of  twenty 
per  cent  on  that  aggregate  liability  will  raiae 
nearly  $700,000.00. 

But  some  of  the  holders  of  preferred  stock 
have  paid  in  whole  or  in  part  for  their 
shares,  and  the  holders  of  common  stock  have 
paid  nothing.  Should  there  not  be  some  pre- 
liminary equalization  of  payments  exacted 
from  the  holders  of  common  stock  before  the 
holders  of  preferred  stock  are  called  on? 
Other  puzzling  questions  arise  to  vex  one,  in 
endeavoring  to  adjust  equitably  and  propor- 
tionately the  burden  of  the  liability. 

There  is  one  very  simple,  direct  and  ef- 
fective way,  and  that  is  to  impose  the  whole 
burden  on  the  resident  stockholder.  As 
hereinabove  stated  there  is  ample  authority 
for  so  doing.  So  far  as  the  records  and 
proofs  are  concerned,  there  is  but  one  stock- 
holder shown  to  be  a  resident  of  Delaware 
and  who  has  been  identified  and  located,  viz.: 
Coleman  du  Pont  He  has  filed  on  answer  to 
the  petition,  subscribed  for  preferred  stodc; 
was  a  promoter  of  the  company  before  its 
organization ;  was  one  of  the  first  board  of 
directors;  was  shown  by  the  record  to  be 
cognizant  of  and  an  active  participant  in  the 
management  of  its  affairs  throughout  the 
early  stages  of  its  development;  voted  for 
the  issue  of  common  stock  and  the  voting 
trust  plan ;  took  ten  thousand  shares  of  com- 
mon stock  knowing  its  history  and  purpose; 
and  still  holds  nine  thousand,  seven  hundred 
shares,  which  are  subject  to  assessment,  and 
as  to  bis  liability  thereon  to  creditors  there 
is  no  special  individual  defense  set  up  by 
him.  Furthermore,  there  is  unpaid  on  his 
shares  of  common  stock  $971,000.00,  which  is 
more  than  sufiicient  to  pay  all  the  creditors 
and  expenses. 

Furthermore,  If  he  pays  the  creditors  ha 
will  be  given  the  right  to  use  the  present  pro- 
ceedings to  enforce  contribution  from  his 
fellow  stockholders,  and  can  do  it  as  effec- 
tively as  the  receivers  can.  In  this  proceed.- 
ing  the  Uatdllty  of  the  other  stockholders  Is 
determined,  subject  to  their  individual  de- 
fenses, and  this  determination  would  be  for 
his  benefit  in  place  of  the  receivers,  to  whose 
rights  he  would  be  subrogated  by  order  of 


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JOHN  W.  OOONEY  OO.  y.  ARLINGTON  HOTEL  CO. 


895 


^Ma  court  Frntherinore,  In  addition  he  ap- 
parently owes  $205,000.00  unpaid  on  his  sub- 
acriptions  to  preferred  stock,  which  liability 
he  denies.  Furthermore,  no  question  has 
been  raised  as  to  his  financial  ability  to  pay 
the  demand. 

[34)  The  advantage  to  the  creditors  would 
be  great  and  are  obvious,  and  this  proceeding 
is  solely  for  their  benefit  If  no  other  clearly 
equitable  way  to  fix  a  rate  applicable  fairly 
to  all  of  the  various  classes  of  stockholders. 
Is  found  practicable,  the  receivers  will  be 
authorized  to  collect  from  Coleman  du  Pont 
the  whole  sum  necessary  to  pay  the  debts 
and  expenses,  and  when  payment  is  made  he 
will  by  a  decree  of  this  court  be  subrogated 
to  the  rights  of  the  recovers  and  creditors 
against  other  stockholders  whose  liability  Is 
also  fixed  by  the  court 

This  conclusion  is  reached  with  great  re- 
luctance, because  it  may  be  considered  that 
the  burden  should  be  distributed  among  all 
delinquent  stockholders  ratably.  But  on  the 
other  hand  the  statute  of  Delaware  Imposes 
on  each  stockholder  the  obligation  to  pay  the 
whole  par  value  of  his  stock  if  that  much  is 
needed  to  pay  creditors  of  the  company  in 
case  the  assets  of  the  company  are  insu£9- 
dent  for  the  purpose,  and  by  the  method 
above  stated  the  creditors  will  be  given  their 
remedy  most  quickly  and  effectively. 

Inasmuch  as  the  question  upon  whom  and 
In  what  proportions  the  assessment  should 
be  made,  was  not  discussed  by  counsel,  the 
court  will,  if  It  be  desirable,  hear  counsel  on 
the  point  before  a  decree  is  entered. 

Supplemental  Opinion  as  to  Form  of  Decree. 

THE  CHANCELLOR.  After  the  filing  of 
the  opinion  a  hearing  was  had  as  to  stock- 
holders, or  classes  of  stockholders  upon 
whom  the  assessments  should  be  laid  prima- 
rily, the  amount  to  be  assessed,  and  the  de- 
tails of  the  substance  and  form  of  the  de- 
cree. 

[35]  I  am  clear  that  there  should  be  no 
distinction  between  tho  delinquent  holders 
of  common  and  preferred  stock,  but  that 
they  should  be  treated  as  one  class.  Also 
that  all  «tockholders  who  had  made  pay- 
ments on  their  stock  in  excess  of  their  pro- 
IMrtiou  of  the  amount  due  the  creditors 
should  be  excluded,  and  that  those  stock- 
taoldera  who  have  made  payments  on  ac- 
count of  their  shares  should  be  given  credit 
therefor. 

There  are  outstanding  not  paid  for  in  full 
5852  shares  of  preferred  stock,  aod  excluding 
the  amount  unpaid  on  the  fifty  shares  of 
J.  William  Henry,  the  bankrupt,  5S02  shares 
of  preferred  and  30,000  shares  of  common,  a 
total  of  35,802,  with  a  par  valuation  of  $3,- 
580,200.00.  An  assessment  of  twenty  per 
c«it  on  the  par  would  raise  a  sum  about 
equal  to  the  debts  and  expenses.  Stockhold- 
ers of  the  company  who  have  paid  In  more 
than  twenty  per  cent  of  the  par  value  of 


their  stock  should  in  equity  be  excluded 
from  assessment.  There  are  two  holders  of 
preferred  stock  who  are  in  that  class,  John 
F.  Wilkins,  a  subscriber  for  two  himdred 
and  fifty  shares,  and  John  Auen,  Jr.,  a  sub- 
scriber of  one  thousand  shares.  Therefore 
they  should  equitably  be  excluded  from  the 
list  of  stockholders  held  liable  to  assessment, 
and  the  aggregate  of  tbe  shares  unpaid  for 
being  4552  shares  of  preferred  and  30,000 
shares  of  common  stock,  a  total  of  34,552 
shares. 

If  an  assessment  of  $20.52  be  made  upon 
each  of  34,552,  and  those  holders  of  preferred 
stock  who  have  paid  in  part  for  their  stock, 
and  less  than  twenty  per  cent  thereof,  be 
credited  with  the  amounts  so  paid  by  them 
thereon,  then  a  sum  will  be  raised  which  is 
Just  a  trifle  more  than  the  aggregate  of 
the  debts;  but  as  some  of  the  items  making 
up  the  aggregate  sum  to  be  raised  are  esti- 
mated, there  is  no  real  inequality  or  un- 
fairness in  fixing  that  amount  of  tbe  assess- 
ment at  that  figure. 

There  is  authority  for  allowing  to  those 
stockholders  who  pay  promptly  the  amounts 
for  which  they  are  liable  a  credit  thereon 
to  the  extent  of  the  payment  <Scovill  v.  Thay- 
er, 105  U.  S.  143,  26  L.  Kd.  968)  and  this  la 
equitable. 

A  decree  will  be  entered  in  accordance 
with  this  and  the  earlier  opinion. 

In  accordance  with  the  foregoing  opin- 
ions the  following  decree  was  entered: 

On  this  fourth  day  of  Annat,  A.  D.  1917,  tbe 
petition  of  James  Frank  Ball,  Aulick  Palmer 
and  Peyton  Gordon,  receivers  appointed  by  this 
court  for  the  said  Arlington  Hotel  Company, 
praying,  among  other  things,  that  this  court  levy 
an  assessment  on  the  stockholders  of  the  said 
company  requiring  them  to  severally  pay  such 
amount  of  their  several  and  unpaid  subscriptions 
to  the  capital  stock  of  the  said  company  as  the 
court  shall  ascertain  to  be  necessary  to  pay  the 
debts  of  the  said  corporation  with  interest,  and 
the  expenses  incident  to  the  winding  up  of  said 
corporation's  affairs  by  said  receivers,  having 
been  filed  in  this  cause  on  the  thirtieth  day  m 
October,  A.  D.  1016,  and  on  said  date  the  Chan- 
cellor having  made  an  order  directing  that  a 
rule  of  this  court  be  issued  directed  to  the  stock- 
holders of  said  company  whose  names  appear  on 
the  list  thereof  attached  to  said  petition  to  ap- 
pear at  a  time  in  said  order  fixed,  and  show 
cause,  if  any  they  have,  why  the  said  assessment 
should  not  be  made,  and  further  directing  that 
said  rule  and  order  with  a  copy  of  said  petition, 
excluding  the  exhibits  attached  thereto,  be  serv- 
ed  on  those  stockholders  of  said  company  who 
were  residents  of  the  state  of  Delaware  and  that 
the  register  in  chancery  give  to  all  other  stock- 
holders of  said  company  whose  names  appear  on 
said  list  notice  of  said  petition  and  of  the  rule 
and  order  by  sending  a  copy  thereof  to  each  of 
said  stockholders  by  registered  letter  addressed 
to  his  last  known  residence,  or  place  of  business, 
and  mailed  within  six  days  from  tbe  date  of  said 
Older: 

And  due  proof  having  been  made  before  the 
Chancellor  that  service  and  notice  of  said  rule 
and  order  had  been  made  and  given  in  compli- 
ance with  said  order; 

And  answers  to  said  petition  having  been  filed 
by  Murray  A.  Cobb.  Z.  U.  Blackistone,  Albert  L. 
Stavely,  William  H.  Fenn  and  T.  Coleman  do 


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101  ATLANXIU  REPORTER 


CDeU 


Pont,  whose  names  appear  on  said  list  aa  stock- 
holders of  said  company,  and  no  other  stockhold- 
ers of  said  company  havinp  appeared  to  said  pe- 
tition or  rule,  or  filed  any  plea  or  answer  thereto, 
or  shown  or  averred  any  cause  why  the  aaid  as- 
sessment should  not  be  made; 

And  the  said  petition  and  rule  and  the  several 
answers  thereto  having  come  on  to  be  beard  by 
the  Chancellor  upon  testimony  presented  and 
taken  orally  in  open  court  before  the  Chancel- 
lor, and  upon  records  and  exhibits  there  pro- 
duced, and  the  cause  having  been  argued  by  the 
respective  solicitors  for  said  receivers  and  for 
said  stockholders  who  had  answered  said  peti- 
tion, and  the  same  having  been  duly  considered 
and  held  under  advisement  until  the  date  of  this 
decree; 

And  it  appearing  to  and  being  found  by  the 
Chancellor  from  the  record,  proceedings  and  evi- 
dence in  said  cause  and  upon  said  petition  and 
answers  thereto,  that  the  proof  so  taken  together 
with  the  record  of  said  cause,  constitute  full  and 
complete  evidence  and  proof  of  all  of  the  findings 
of  fact  and  fully  support  for  all  the  findings  of 
law  and  for  the  orders  of  the  court  in  this  de- 
cree contained; 

And  further,  that  the  said  Arlington  Hotel 
Company  is  a  corporation  of  the  state  of  Dela- 
ware, and  has  been  duly  adjudged  by  this  court 
in  this  cause  to  be  insolvent  ■  and  that  the  said 
Jamea  Frank  Ball,  Aulick  Palmer  and  Peyton 
Gordon  have  been  duly  appointed  by  this  court 
and   qualified    as   receivers    of   said    company; 

And  further,  that  after  due  notice  given  to  all 
of  the  cre<litors  and  stockholders  of  said  compa- 
ny and  after  exceptions  taken  to  certain  claims 
filed  in  said  cause  by  creditors  of  said  company 
had  been  adjudicated,  and  the  amount  due  the 
said  creditors  on  their  respective  claims  fixed 
and  determined  by  the  Chancellor  as  being  the 
debts  due  by  said  company,  the  dividends  allow- 
ed and  decreed  upon  claims  of  said  creditors  in 
the  suits  in  which  receivers  were  appointed  in 
the  District  of  Columbia  having  been  deducted 
from  said  claims,  and  that  the  following  are  the 
claims  of  creditors  of  the  said  company  filed  in 
this  cause  which  have  been  so  allowed  by  the 
Chancellor  as  the  debts  due  by  said  company  in 
the  amounts  hereinafter  stated,  viz.:  [Here  was 
inserted  a  list  of  the  creditors  of  the  company 
and  the  amounts  due  them  respectively,  aggre- 
gating $466,739.42.] 

And  further,  that  there  are  no  funds  or  prop- 
erty of  said  corporation  with  which  to  pay  the 
debts  and  claims,  or  any  part  thereof,  except  the 
moneys  due  to  said  corporation  from  the  stock- 
holders of  the  said  corporation  who  have  not 
paid  in  full  for  their  shares  of  stock,  and  that 
an  assessment  or  call  should  be  made  against 
said  subscribers  or  holders  of  unpaid  shares  of 
stock  of  the  said  corporation  to  pay  said  debts 
and  the  expenses  of  the  receivership; 

And  further,  that  the  debts  of  said  company 
which  are  unpaid  as  aforesaid  aggregate  the  sum 
of  four  hundred  and  sixty-six  thousand  seven 
hundred  and  thirty-nine  dollars  and  forty-two 
cents  ($466,739.42) ;  that  the  interest  to  which 
creditors  will  be  entitled  will  probably  aggre- 
gate one  hundred  and  forty  thousand  dollars 
($140,000.00);  that  the  costs  and  expenses  of  the 
receivership  and  of  collecting  the  assessment,  in- 
cluding compensation  for  the  receivers  and  their 
legal  counsel,  are  estimated  at  one  hundred 
thousand  dollars  ($100,000.00);  and  that,  there- 
fore, the  aggregate  sum  necessary  to  satisfy  the 
debts  of  said  corporation  and  to  be  assessed  upon 
and  collected  from  the  stockholders  who  are  lia- 
ble therefor  is  seven  hundred  and  six  thousand 
seven  hundred  and  thirty-nine  dollars  and  forty- 
two  cents  ($706,739.42) ; 

And  furtner,  that  the  said  creditors  are  enti- 
tled to  have  their  said  claims  and  demands 
against  said  company  paid  by  an  assessment  to 
be  made  upon  the  shares  of  preferred  and  com- 
mon stock  of  said  company,  and  upon  the  hold- 
ers thereof,  notwithstanding  that  the  said  cred- 


itors, or  some  of  them,  had  at  the  time  of  giv- 
ing credit  to  said  company  notice  of  the  circum- 
stances under  which  the  shares  of  common  stock 
were  issued  by  said  company  as  full  paid  and 
nonassessable; 

And  further,  that  the  following  is  a  list  of  the 
subscribers  to  the  preferred  stock  of  said  com- 
pany, who  have  not  paid  in  full  therefor,  show- 
ing the  number  of  shares  subscribed  for  by  them 
respectively,  the  aggregate  of  the  payments  mada 
by  any  of  them  respectively,  and  the  amounts 
unpaid  thereon  respectively  (the  name  of  J.  Wil- 
liam Henry,  a  subscriber  for  fift?  [50]  shares, 
found  to  be  a  bankrupt,  being  omitted  there- 
from), and  the  aggregate  of  the  amounts  so 
stated  as  unpaid  on  said  5,802  shares  of  prefer- 
red stock  being  four  hundred  and  seventy-nine 
thousand  two  hundred  and  ten  dollars  ($479,- 
210.00):  (Here  was  inserted  "Schedule  A,** 
showing  the  subscribers  to  preferred  stock,  num- 
ber of  shares,  amount  subscribed)  amount  paid 
and  balance  due.] 

And  further,  that  all  of  the  authorized  com- 
mon stock  of  said  company,  aggregating  three 
million  dollars  ($3,(X)0,000.00)  bad  been  issued 
without  value  given  therefor,  and  that  the 
amount  remaining  unpaid  upon  the  common 
stock  of  said  corporation  is  three  million  dollars 
($3,000,000.00),  and  that  the  persons  liable  to 
assessment  as  holders  of  such  common  stock,  in> 
eluding  those  holding  trust  certificates  for  shares 
of  said  common  stock,  and  the  amounts,  aggre- 
gating three  million  dollars  ($3,000,000.00),  nec- 
essary to  complete  the  amount  of  tJie  par  value 
of  their  shares  and  on  which  they  are  liable  to 
assessment,  are,  respectively,  as  follows:  [Here 
was  inserted  "Schedule  B,  showing  the  sub- 
scribers to  common  stock,  number  of  shares, 
amount  subscribed  and  amount  due.] 

And  further,  that  an  assessment  of  twenty 
per  cent.  (20%)  upon  all  holders  of  shares  of 
stock  of  said  company,  both  preferred  and  com- 
mon, not  paid  for  in  full,  being  5,802  shares  ot 
preferred  and  30,0(X)  shares  of  common  stock, 
ag^'rogating  35,802  shares,  would  equal  about 
the  said  sum  of  seven  hundred  and  six  thousand 
seven  hundred  and  thirty-nine  dollars  and  forty- 
two  cents  ($706,739.42),  estimated  to  be  neces- 
sary for  the  payment  of  the  debts  of  said  com- 
pany, with  interest  and  tlie  expenses  of  the  re- 
ceivership; that  two  of  said  persons  named  ia 
Schedule  A  have  paid  more  than  twenty  per 
cent,  of  their  subscriptions  to  said  stock,  viz.: 
John  F.  Wilkins,  a  subscriber  for  two  hun- 
dred and  fifty  shares,  and  John  Anen,  Jr.,  a 
subscriber  for  one  thousand  shares;  and  that 
therefore  the  said  John  F.  Wilkins  and  John 
Auen,  Jr.,  should  not  at  this  time  be  required 
to  mako  further  payments  on  account  of  their 
respective  subscriptions  to  said  preferred  stock ; 
that  after  deducting  the  shares  of  the  said  Jolm 
F.  Wilkins  and  John  Auen,  Jr.,  aggregating 
twelve  hundred  and  fifty,  the  aggregate  of  said 
shares  held  by  the  subscribers  mentioned  in 
Schedule  A  is  four  thousand  five  hundred  and 
fifty-two  (4,552),  and  the  aggregate  of  the  shares 
of  common  stock  is  thirty  thousand  (30,000) 
shares;  and  that  the  aggregate  of  both  kinds 
of  said  stock  liable  for  said  assessment  for  pa^ 
ment  of  said  debts  and  receivership  expenses  is 
thirty-four  thousand  five  hundred  and  fifty-two 
(34,552)  shares; 

And  further,  that  said  assessment  should  be 
equalized  as  near  as  may  be  between  those 
stockholders  who  have  paid  in  part  for  their 
shares  and  to  the  extent  thereof,  and  those  who 
have  paid  nothing  therefor;  and  for  this  pui^ 
pose  that  an  assessment  of  twenty  dollars  and 
fifty-two  cents  (.$20.52)  should  be  made  on  each 
of  said  thirty-four  thousand  five  hundred  and 
fifty-two  shares ;  and  those  persons  named  in 
Scliedule  A  who  have  made  payments  on  ac- 
count ot  their  shares  be  credited  with  the 
nraouuts  so  paid  by  them,  as  against  the  amount 
which  would  otherwise  be  assessed  against 
them  aa  above  stated; 


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JOHN  W.  COONEY  CO.  ▼.  ABWNOTON  HOTEL  CO. 


897 


And  further,  that  the  followins.  Schedule  C, 
la  a  list  of  the  persons  who  as  holders  of  shares 
«t  stock  of  said  company,  both  preferred  and 
common,  are  liable  to  said  assessment ;  that 
the  said  schedule  shows  the  number  of  shares 
held  by  them  respectively,  as  shown  by  the 
books,  records  and  papers  of  said  company  and 
by  the  testimony  in  this  cause ;  and  the  amount 
due  and  payable  from  each  of  them  by  an  as- 
sessment of  twenty  dollars  and  fifty-two  cents 
($20.52)  upon  each  share  of  stock  held  by  them 
respectively,  a  deduction,  or  credit,  having 
been  given  to  such  stockholdera  who  have  made 
payments  on  their  stock  of  the  amounts  so  paid 
by  them  respectively,  as  shown  by  the  above 
mentioned  Schedule  A:  [Here  was  inserted 
"Schedule  C,"  showing  the  subscribers  to  pre- 
ferred and  common  stock,  number  of  shares  of 
each,  and  amount  of  assessment.] 

It  is,  therefore,  adjudged,  ordered  and  decreed 
by  the  court,  as  follows: 

1.  That  the  amount  necessary  to  be  raised 
to  pay  the  principal  of  the  claims  of  the  cred- 
itors of  the  said  Arlington  Hotel  Company 
found  and  allowed  as  aforesaid  is  four  hundred 
and  sixty-six  thousand  seven  hundred  and  thir- 
ty-nine dollara  and  forty-two  cents  ($466,739.- 
42),  and  the  estimated  interest  thereon  to  the 
date  of  payment  is  the  sum  of  one  hundred  and 
forty  thousand  dollars  ($140,000.00),  and  the  es- 
timated costs  and  expenses  of  the  receivership, 
including  the  collection  of  the  assessments  here- 
inafter levied  for  the  payment  of  said  claims, 
amount  to  the  sum  of  one  hundred  thousand 
dollars  ($100,000.00),  and  the  total  amount  nec- 
essary to  satisfy  the  debts  of  the  said  corpo- 
ration and  said  costs  and  expenses  is  the  sum 
of  seven  hundred  and  six  thousand  seven  hun- 
dred and  thirty-nine  dollars  and  forty-two  cents 
($706,739.42) ; 

2.  And  further,  that  It  is  necessary  to  assess 
the  said  last  mentioned  sum  upon  the  shares 
of  stock  of  said  company  which  have  not  been 
paid  for  in  full,  and  upon  the  holders  thereof, 
or  upon  the  legal  representatives  of  such  of 
them  as  may  be  dead;  that  for  said  iiurpose 
the  said  sum  is  hereby  assessed  and  levied  up- 
on said  shares  of  stock  and  upon  the  holders 
thereof,  or  the  legal  representatives  of  such  of 
them  as  may  be  dead ;  that  for  the  said  pur- 
pose an  assessment  of  twenty  dollars  and  fifty- 
two  cents  ($20.52)  is  hereby  levied  on  each  of 
said  shares  of  stock,  preferred  and  common,  ex- 
cept the  shares  of  preferred  stock  held  by  John 
F.  Wilkins  and  John  Auen,  Jr.,  as  hereinabove 
etated;  that  the  holders  of  shares  of  preferred 
stock  who  have  made  payments  on  account 
thereof  be  credited  as  a(;ainst  said  assessment 
with  the  amounts  so  paid  thereon  respectively 
as  shown  by  Schedule  A. 

3.  And  further,  that  the  foregoing  list,  call- 
ed Schedule  C,  contains  the  names  of  the  hold- 
ers of  said  shares,  preferred  and  common,  the 
number  of  shares  held  by  them  respectively, 
and  the  amounts  so  assessed  against  them  as 
aforesaid,  the  holders  of  shares  of  preferred 
stock  who  have  made  payments  on  account 
thereof  having  been  duly  credited  therewith  as 
against   said    assessment ; 

4.  And  further,  that  the  said  persons  men- 
tioned in  said  Schedule  C,  or  the  legal  repre- 
sentatives of  such  of  them  as  may  be  dead,  pay 
to  said  receivers  the  said  sums  so  assessed  as 
stated  in  said  Schedule  C,  within  the  time  to 
be  fixed  herein ; 

Provided,  that  with  the  consent  of  the  receiv- 
ers, or  their  solicitors,  each  and  every  stock- 
bolder  liable  under  said  assessment  and  levy 
who  shall  pay  the  amount  assessed  against  him 
or  them  upon  demand,  or  within  the  limit  of 
time  as  hereinafter  prescribed,  shall  be  allow- 
ed a  credit  on  the  amount  due  as  aforesaid  of 
three  per  cent  (3%)  upon  his  proportion  of 
the  amount  so  assessed  and  paid,  which  credit 
it  is  estimated  would  equal  the  proportionate 
■hare  payable  by  each  stockholder  of  the  total 

101  A.-61 


amount  of  the  estimated  costs,  and  expenses  of 
the  receivership,  and  the  collection  oic  the  as- 
sessment, including  compensation  for  the  re- 
ceivers and  their  legal  counsel,  and  also  for  ac- 
cruing interest. 

5.  And  further,  that  the  said  receivers  be  and 
they  are  hereby  authorized  and  directed  to  send 
within  ten  (10)  days  from  the  date  of  this  de- 
cree by  registered  postpaid  letter,  addressed 
to  each  of  the  holders  of  shares  of  stock  of  said 
company  as  shown  in  said  Schedule  C,  or  to 
their  Itfal  representatives,  a  copy  of  this  de- 
cree, with  a  demand  for  the  payment  on  or 
before  the  seventeenth  day  of  September,  A  D, 
1917,  of  the  amounts  severally  due  from  them  as 
shown  by  said  Schedule  C. 

6.  And  further,  that  in  the  event  that  any 
person  or  corporation  liable  as  shareholders  of 
the  company,  or  the  legal  representative  of  any 
of  them  that  may  be  dead,  shall  fail  to  pay  the 
amount  hereby  assessed  upon  or  against  the 
share  or  shares  of  said  stock,  preferred  or  com- 
mon, owned  or  held  by  him,  or  upon  or  on  ac- 
count of  which  he  is  liable,  within  the  time  here- 
inbefore specified,  said  receivers  are  hereby 
authorized  and  empowered  to  institute  and  pros- 
ecute such  suit  or  suits,  action  or  actions,  or 
other  proceedings  against  such  person  or  per- 
sons, corporation  or  corporations,  party  or  par- 
ties so  liable,  in  any  court  having  jurisdiction, 
whether  in  this  state  or  elsewhere,  as  said 
receivers  shall  deem  necessary  or  proper  for 
the  collection  of  the  whole  amount  due  from 
such  persons  or  corporations,  under  the  terms 
of  this  decree ;  and  for  the  purpose  of  carrying 
on  said  suits,  the  receivers  are  hereby  author- 
ized and  directed  to  employ  soch  counsel  in 
other  jurisdictions  and  make  such  expenditures 
for  costs  in  any  of  said  suits  as  may  reasonably 
be  found  to  be  necessary. 

7.  And  further,  that  the  title  to  said  sums 
severally  assessed  as  aforesaid  against  said 
shares  of  stock  and  against  said  stockholders, 
or  their  legal  representatives,  and  the  right  to 
sue  therefor,  is  in  the  said  receivers  of  said 
company. 

And  it  appearing  to  and  being  found  by  the 
court  that  T.  Coleman  du  Pont  is  the  only 
stockholder  of  said  company  resident  in  the 
state  of  Delaware, 

It  is  further  adjudged,  ordered  and  decreed 
that  in  the  event  that  at  the  end  of  the  period 
of  time  hereinbefore  specified,  the  whole  or  any 
part  of  the  said  sum  of  seven  hundred  and  six 
thousand  seven  hundred  and  thirty-nine  dol- 
lars and  forty-two  cents  ($706,739.42),  remains 
unpaid  by  reason  of  the  failure  of  any  person 
or  corporation  liable  as  shareholder  of  the  Ar- 
lington Hotel  Company  to  pay  within  said 
specified  time  the  amount  hereoy  assessed  upon 
or  against  the  share  or  shares  of  said  stock, 
preferred  or  common,  owned  or  held  by  him, 
or  upon  or  on  account  of  which  he  is  liable, 
said  receivers  are  hereby  authorized,  empower- 
ed and  directed  to  give  to  the  said  T.  Coleman 
du  Pont  written  notice  of  that  fact,  and  of 
the  amount  so  remaining  unpaid,  and  to  demand 
and  require  the  said  T.  Coleman  du  Pont  to 
pay  to  said  receivers  in  addition  to  the  amount 
hereinbefore  assessed  against  him  on  account 
of  the  shares  held  by  him,  the  balance  of  the  to- 
tal sum  of  seven  hundred  and  six  thousand 
seven  hundred  and  thirty-nine  dollars  and  forty- 
two  cents  ($706,739.42),  or  so  much  thereof  as 
then  remains  unpaid  by  reason  of  such  failurf 
on  the  part  of  said  other  stockholders,  which 
said  sum  of  seven  hundred  and  six  thousand 
seven  hundred  and  thirty-nine  dollars  and  forty-' 
two  cents  ($706,739.42),  or  so  much  thereof  as 
shall  then  remain  unpaid,  the  said  T.  Coleman 
du  Pont  is  hereby  ordered  and  decreed  to  pay 
to  the  said  receivers;  and  in  default  thereof 
for  the  period  of  thirty  (30)  days,  the  said  re- 
ceivers shall  proceed  to  collect  the  same  from 
the  said  T.  Cbleman  du  Pont  hy  suit,  or  other- 
wise, as  they  may  deem  proper. 


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And  farther,  that  the  said  T.  Coleman  du 
Pont,  upon  payment  of  the  said  8nm  so  remain- 
ing unpaid,  snail  (except  as  to  the  amount  as- 
sessed against  him)  be  subrogated  to  the  rights 
of  the  said  receivers,  to  hare  and  recover,  by 
way  of  contribution,  from  the  persons  or  cor- 
porations liable  for  or  on  account  of  said  shares 
of  preferred  and  common  stock,  the  sums  re- 
spectively assessed  upon  and  due  from  each  of 
them  under  the  assessment  hereinbefore  made 
and  levied ;  and  shall  also  have  the  right  to 
institute  and  prosecute  at  his  own  expense, 
in  the  name  of  said  receivers,  but  to  his  own 
use,  any  suit,  action  or  proceeding  for  the  re- 
covery or  collection  of  said  sums  so  assessed 
as  aforesaid,  including  any  suit,  action  or  pro- 
ceedings brought  by  said  receivers  for  said  pur- 
pose, and  shall  be  entitled  to  have  any  order 
of  thia  court  necessary  to  effectuate  such  pur- 
pose; and  all  sums,  if  any,  that  may  suDse- 
quent  to  such  payment  b^  said  T.  Coleman  dn 
Pont,  be  received  by  said  receivers  from  any 
such  person  or  corporation,  for  or  on  account 
of  such  liability,  shall  be  held  subject  to  the 
further  order  of  the  court,  and  for  the  use  of 
said  T.  Coleman  du  Pont. 

9.  And  it  is  further  adjudged,  ordered  and 
decreed,  that  said  receivers  be  and  th^  are 
hereby  directed  to  bold  all  amounts  couected 
under  the  terms  of  this  decree  snbject  to  the 
further   order   of  the  Chancellor   herein. 

[Signed]    Chas.  M.   Curtis,   Chancellor. 


(11  Del.  Ch.  268) 

KINGSTON  et  al.  t.  HOME  LIFE  INS.  CO. 
OF  AMERICA  et  al. 

(Court  of  Chancery   of  Delaware.     April  19, 
1917.) 

1.  OoBPOBATiONS  «=9l68  —  Stocilholdkbb  — 
SuBSCBipnoN  TO  New  Srabes. 

The  right  of  shareholders  to  subscribe  for 
new  shares  issued  by  a  corporation  as  an  in- 
crease of  its  capital  stock  in  preference  to  out- 
siders is  well  established,  being  known  as  a 
shareholder's  pre-emptive  right,  although  it  may 
be  ditlicult  to  determine  whether  the  stock  it- 
sue  is  an  issue  of  new  stock, 

2.  CoBPORATiONS  «=>G0— Stock— iBSCAifCB  or 
Sbares. 

New  shares  of  corporate  stock  cannot  be 
issued  for  an  improper  purpose,  as  to  maintain 
control  of  a  corporation. 
8.  CoRPORATioNB   «=»15&— Stock— COKTRACTS 
— Validitt. 

A  contract  between  a  corporation  and  an 
outsider,  giving  the  latter  the  exclusive  right 
to  take  at  par  a  large  number  of  shares  of 
corporate  stock  without  regard  to  time,  being 
valid  as  between  the  corporation  and  the  out- 
sider, cannot  be  attacked  by  those  acquiring 
their  stock  subsequent  to  the  execution  of  the 
contract,  for  it  does  not  infringe  on  the  pre- 
emptive right  of  such  shareholders. 
4.  CoBPOBATioNB  «=»158— Stock— CoNTBAOTS 
— VAi-iDrrr. 

That  those  subsequently  adquiring  their 
•tock  did  not  know  of  the  contract  does  not  au- 
thorize them  to  attack  it. 

6.  cobpobatiors  «=72— stock— cowtbacts— 
Validitt. 
Where  a  contract  between  an  insurance  com- 
pany and  an  outsider,  authorizing  him  to  take 
at  par,  without  limitation  as  to  time,  certain 
corporate  stock  to  be  thereafter  issued,  was 
assigned  to  defendant,  which  made  loans  to  en- 
able the  company  to  extend  its  businpss,  and 
such  loans  were  very  beneficial,  the  contract 
cannot  be  overthrown,  on  the  ground  that  it 
was  oppressive,  because  the  stock  of  the  com- 
pany Buld  above  par. 


6.  Pkbpetuities     «3»7(1)  —  CokThacts— Ih- 

rBINOElOENT. 

A  contract  between  a  private  oor^ration 
and  a  third  person,  authorizing  the  third  per- 
son to  take,  without  limitation  as  to  time,  cer- 
tain corporate  stock  thereafter  to  be  issued, 
does  not  infringe  the  rule  against  perpetuities, 
which  was  intended  to  prevent  undue  restraint 
on  the  alienation  of  land,  the  source  of  all 
wealth,  for  the  rule  should  not  be  extended  to 
the  stock  of  a  private  business  corporation. 

7.  INSUBANCK   «=>36— iNStTRANCB    Cdmpahiis 

—CoNTRAcre— Validity. 
A  contract  whereby  defendant  wa«  to  fur- 
nish insurance  company,  engaged  in  writing 
industrial  policies,  with  fundis  to  secure  new 
business,  is  not  illegal  or  unfair  as  to  the  in- 
surance company,  which  was  a  new  corpora- 
tion, and  which  needed  such  funds,  as  it  could 
not  legally  use  its  capital  stock  for  working 
capital,  as  a  working  surplus  would  be  slowly 
built  up,  and  as  the  contract  provided  that  re- 
payment should  be  made  only  out  of  the  aurplui 
of  the  company  above  a  fixed  amount,  unless 
it  should  be  disaolvedj  when  payment  should  bs 
made  out  of  the  capital  stock ;  this  being  so, 
though  the  status  of  the  loans  was  misrepre- 
sent^ on  the  books  of  the  insurance  companf 
and  defendant. 

8.  CoBPOBATions  «s»162  —  DiTiDKNDs  —  Pay- 
ment. 

Where  it  waa  estimated  that  the  value  of 
land  purchased  with  the  capital  of  an  insurance 
company  had  enhanced,  and  it  was  shown  that 
an  ofiScer,  authorized  to  purchase  land  for  a 
fixed  amount,  acquired  it  for  less,  such  enhance- 
ment in  the  value  of  the  land  and  the  saving 
effected  were  not  profits  out  of  which  dividenda, 
that  can  only  be  paid  out  of  surplus  or  net 
profits  arising  from  the  business,  could  be  de- 
clared. 

9.  CORPORATIOIfS    «=9351  — OinCEBS  — Diri- 

DEN  D — LiAfiiLrrr . 
The  statutory  liability  of  officers  who  im- 
properly declare  a  dividend  cannot  be  enforced 
in  an  action  against  the  corporation  and  anoth- 
er oompanjr  to  annul  contracts,  enjoin  piy- 
ments  of  dividends,  etc. ;  the  officers  not  being 
parties. 

10.  INSDBANCK     «=>60  —  CoBPOBATIORS  —  Rl- 
CBITEBS— APPOIMTUBNT. 

As  the  only  purpose  of  a  receivership  for  so 
insurance  company  would  be  a  liquidation  of 
the  bnainesE,  as  a  receiver  could  not  carrjr  it 
on  indefinitely,  a  receiver  will  not  be  appoint- 
ed because  dividends  may  have  been  illegally 
declared,  where  liquidation  was  not  desired, 
even  though  an  injunction  against  declaration 
of  future  illegal  dividends  must  be  generaL 
U.  Inburancb    ®=»50— Cobpobations  — Im- 

FAIBMXNT   OF    CAPITAL. 

As  the  insurance  commissioner  has  exten- 
sive powers  with  respect  to  the  conduct  of  an 
insurance  com[>any's  business,  particularly  with 
respect  to  the  impairment  of  capital,  a  receiver 
of  on  insurance  company  vrill  not  be  appointed 
because  the  capital  may  be  somewhat  impaired, 
when  the  real  property  of  the  company  is  coi^ 
rectly  valued ;  this  being  particularly  true 
where  there  was  testimony  that,  if  liquidated, 
the  net  value  of  the  stock  of  the  company  would 
exceed  its  par  value. 

12.  Insurance   <s»60  — Cobpokations— Rb- 
ceivebs— Appointmknt. 

Where  a  contract  by  which  the  preddent  of 
an  insurance  company,  who  personally  assumed 
at  its  face  value  a  worthless  account,  was  to  re- 
ceive commissions  on  insurance  written,  was  not 
oppressive  or  fraudulent,  a  receiver  wiU  not 
be  appointed,  though  the  president,  in  making 
bis  report  to  the  insurance  commissioner,  mis- 
stated the  facts  as  to  payment  of  premiums  to 
him. 


CssFor  other  cases  see  same  topic  and  KEY-NUMBER  in  alt  Key-Numbored  Digests  and  InduMs 


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Del.) 


KINGSTON  V.  HOME  L.IFE  INS.  CO.  OF  AMERICA 


899 


Bill  by  Thomas  Elngstdn  and  others,  as 
shareholders,  against  the  Home  Life  Insur- 
ance Company  of  America,  a  corporation,  and 
another.    Decree  for  defendants. 

Bill  by  shareholders  of  an  insurance  com- 
pany to  annul  contracts  made  by  the  com- 
pany and  to  correct  irregularities  and  unlaw- 
ful acts  of  officers  and  directors.  The  cause 
was  heard  on  bill,  the  Joint  answer  of  the 
two  defendants  and  testimony  and  exhibits. 
The  facts  appear  in  th«  opinion  of  the  Chan- 
cellor. 

Caleb  S.  Leyton,  of  Wilmington,  and  Thom- 
as Raebnm  White,  of  Philadelphia,  Fa.,  for 
complainants.  Charles  F.  Curley,  of  Wil- 
mington, and  John  P.  Connelly,  of  Philadel- 
phia, Pa.,  for  defendants. 

THE  CHANCELLOR.  The  six  complain- 
ants, all  stockholders-  of  the  Home  Life  In- 
surance Company  of  America,  a  Delaware 
corporation,  have  filed  their  bill  against  that 
company  and  the  Home  Protective  Company, 
also  a  Delaware  corporation,  on  behalf  of 
themselves  and  of  other  stockholders.  It 
appears  that  the  officers  of  the  two  defend- 
ant companies  are,  and  for  more  than  nine 
years  and  during  the  transactions  complained 
of,  have  been  the  same  persons,  and  during 
the  same  period  a  majority  of  the  directors 
of  the  Insurance  Company  were  also  directors 
of  the  Protective  Company.  Dp  to  1907  the 
Protective  Company  owned  practically  all  the 
outstanding  shares  of  the  In&iirance  Company 
and  therefore  controlled  it  Afterwards,  and 
until  the  latter  part  of  1913,  the  Protective 
Company  sold  shares  of  the  Insurance  Com- 
pany at  prices  about  double  the  par  value. 
The  shares  so  sold  were  sold  largely  in  connec- 
tion with  policies  of  insurance  negotiated  by 
agents  of  the  Insurance  Company,  the  per- 
sons insured  being  given  a  right  to  take  such 
shares.  Some  at  least  of  the  shares  so  dis- 
posed of,  and  others  afterwards  acquired  by 
the  Protective  Company,  were  Issued  pur- 
suant to  an  option  given  by  the  Insurance 
Company  and  acquired  by  the  Protective 
Company.  This  option  had  its  origin  in  the 
action  of  the  directors  of  the  Insurance  Com- 
pany at  a  meeting  on  October  29, 1906,  where- 
by It  gave  to  Paul  Bright  the  exclusive  right 
to  purchase  one  hundred  thousand  dollars 
worth  of  stock  at  par,  which  was  then  one 
hundred  dollars  per  share  and  which  was 
afterwards  reduced  to  ten  dollars  per  share. 
At  this  time  one  hundred  thousand  dollars 
of  stock  had  been  issued  out  of  an  authorized 
capital  of  two  hundred  and  fifty  thousand 
dollars.  By  an  agreement  dated  April  15, 
1S07,  the  Protective  Company  purchased  from 
Bright  the  entire  good  will  and  business-  uf 
the  Insurance  Company  and  the  entire  out- 
standing stock,  amounting  to  one  hundretl 
thousand  dollars,  at  par  ten  dollars,  for  the 
total  consideration  of  one  hundred  and  flfty- 
flve  thousand  dollars,  and  lator  Bright  aa- 


signed  to  the  Protective  Company  the  option 
which  he  had  to  substarlbe  for  stock  of  the 
Insurance  Company.  At  a  meeting  of  the 
stockholders  of  the  Insurance  Company  held 
January  21,  1908,  it  was  by  motlou  duly  car- 
ried agreed  that  tlie  surplus  earnings,  if  any, 
be  paid  to  the  Protective  Company  "for  fi- 
nancing the  Home  Life  Insurance  Company  of 
America,"  and  authority  was  given  to  the 
directors  to  increase  the  authorized  capital 
from  two  hundred  and  fifty  thousand  dollars 
to  not  exceeding  one  million  dollars,  con 
templatlng,  of  course,  that  proper  legal  steps 
would  be  taken  for  the  purpose.  At  a  meet- 
ing of  the  stockholders  of  the  Insurauce  Com- 
pany held  February  16,  1909,  a  resolution  re- 
citing tlie  givbDg  of  the  option  to  Bright,  the 
assignment  thereof  to  the  Protective  Com- 
pany and  the  proposed  increase  of  capital, 
and  also  reciting  that  the  Protective  Com- 
pany had  contributed  or  advanced  to  the  In- 
surance Company  moneys  and  securities  to 
enable  It  to  maintain  its  legal  reserve  and 
build  up  its  business,  and  stating  that  the 
contributions  or  advances  would  continue  a!> 
needed  by  the  Insurance  Company  and  be  re- 
turned out  of  surplus  earnings,  and  extending 
the  option  to  include  the  entire  capital  stock, 
was  adopted  by  the  stockholders. 

In  explanation  of  the  advances  or  con- 
tributions made  by  the  Protective  Company 
to  the  Insurance  Company  it  was  stated  in 
the  answer  and  shown  that  the  moneys  were 
needed  to  acquire  new  business  either 
through  soliciting  agents  or  by  reinsuring 
the  risks  of  other  insurance  companies,  and 
under  the  insurance  laws  the  usual  Income 
of  the  company  could  not  be  used  for  such 
purpose.  It  was  explained  also  that  to  grow- 
rapidly  it  was  necessary  for  a  newly  organ- 
ized Insurance  company  to  make  large  ex- 
penditures in  excess  of  the  premiums  collect- 
ed by  It  In  order  to  pay  soliciting  agents,  and 
that  after  the  business  increased  to  large 
proportions  the  receipts  will  exceed  such  ex- 
penses. In  other  words.  It  costs  a  new  com- 
pany more  to  place  insurance  than  Is  re- 
ceived from  those  insured.  To  enable  the 
Home  Life  Insurance  Company  to  so  grow 
rapidly  the  Protective  Company  paid  to  the 
Insurance  Company  at  various  times  sums  of 
money. 

Finally,  at  the  annual  meeting  of  the 
stockholders  of  the  Insurance  Company,  held 
February  19,  1916,  a  resolution  was  adopted 
reciting  the  action  of  the  meeting  of  January 
21,  1908;  and  that  about  four  hundred  and 
seventy  thousand  dollars  had  been  received 
from  the  Protective  Company  by  the  Insur- 
ance Company,  of  which  about  eighty-one 
thousand  dollars  had  been  re-paid;  and  au- 
thorizing the  execution  of  obligations  for  the 
sums  so  contributed  and  advanced  and  those 
to  be  contributed  and  advanced,  with  inter- 
est at  six  per  centum,  the  obUgatlMis  to  be 
made  payable  only  out  of  surplus  In  excess 
of  ten  thousand  dollars  while  the  Insurance 
Company  should  continue  in  active  business 


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101  ATIiANTIO  REPORTEB 


(DeL 


and  the  obligations  should  not  be  considered 
a  lien  or  debt  against  the  Insurance  Com- 
pany, or  be  due  or  payable,  except  In  the 
event  of  dissolution  or  retirement  of  the  com- 
pany. 

Up  to  1912  the  Protective  Ckmipany  actual- 
ly held  a  majority  of  all  the  stock  of  the  In- 
surance Company,  and  after  that  time 
though  it  bad  not  control  as  a  majority  stock- 
holder, It  had  and  still  has  power  to  secure 
control  by  exercising  the  option  to  take  stock. 
The  Protective  Company  now  holds  about  sis 
thousand  shares  of  the  Insurance  Company 
out  of  about  sixteen  thousand  outstanding. 
About  elgbty-five  hundred  shares  remain  un- 
issued, and  the  Protective  Company  has  the 
right  to  take  at  par  these  unissued  shares  to 
the  exclusion  of  the  other  stockholders. 

Between  1907  and  the  latter  part  of  1913 
the  Protective  Company  took  under  its  op- 
tion shares  of  the  Insurance  Company  at  par 
and  sold  them  in  connection  with  Insurance 
policies  at  from  two  to  three  times  the  par 
value,  and  from  1913  to  1916  took  none.  But 
In  June,  1916^  after  some  of  the  stockholders 
of  the  company  had  expressed  dissatisfaction 
with  its  course,  and  threatened  to  take  legal 
proceedings,  the  Protective  Company  took  at 
par  thirty-seven  hundred  shares  of  the  In- 
surance Company  under  the  option.  Up  to 
a  very  recent  date  the  officers  and  directors 
of  the  Insurance  Company  held  very  few  of 
its  shares,  and  were  large  holders  of  shares 
of  the  Protective  Company,  of  which  thoy 
were  also  officers  and  directors. 

By  the  bill  the  complainants  allege  that 
the  plan  of  financing  the  Insurance  Compa- 
ny by  the  Protective  Company  was  fraudu- 
lent both  Inherently  and  by  the  method  of 
carrying  it  out  The  plan  briefly  stated  was 
and  is  (and  as  to  this  there  is  no  dispute) 
that  the  Protective  Company  should  furnish 
to  the  Insurance  Company  money  to  acquire 
new  business  for  the  latter,  and  in  return 
therefor  the  Protective  Company  was  given 
a  perpetual  and  exclusive  right  to  subscribe 
to  the  stock  of  the  Insurance  Company  at 
par,  the  Insurance  Company  being  liable  to 
return  all  the  money  advanced,  with  Interest, 
only  out  of  surplus  in  excess  of  ten  thousand 
dollars,  or  in  case  of  liquidation  out  of  the 
assets  of  the  company. 

It  is  alleged  and  shown  that  there  were 
certain  deceptions  practiced  by  the  officers 
of  the  two  companies,  who  were  the  same 
persons,  and  particularly  in  the  entries  in 
the  books  of  the  Insurance  Company  and  in 
Its  reports,  official  statements,  which  were 
misleading  and  evidence  of  a  fraudulent  pur- 
pose. 

It  is  also  alleged  that  dividends  were  paid 
otherwise  than  from  earnings,  and  that  the 
■capital  of  the  company  had  been  Impaired. 

[1,2]  But  Independent  of  these  and  some 
other  considerations.  It  should  be  first  deter- 
mined whether  this  agreement  or  optl<Mi  to 
purchase  was  vaUd,  or  invalid.  If  invalid, 
then  what  relief  should  be  granted?    For  the 


complainants  it  Is  urged  that  the  stock  op- 
tion was  in  itself  Ulegal  and  void,  (1)  because 
it  violates  the  fundamental  right  of  stock- 
holders  to  share  equally  in  the  distrlbutloa 
of  unissued  stock,  or  to  purchase  the  same 
upon  equal  terms  and  to  maintain  the  same 
proportion  of  the  control  of  the  company  as 
existed  prior  to  such  issue;  and  (2)  because 
it  is  in  violatl(»i  of  the  rule  against  perpetu- 
ities. 

Was  the  option  contract  Invalid  because 
It  destroyed  the  pTe-emx>tlve  right  of  stock- 
holders to  take  the  shares?  The  risJit  of 
shareholders  to  subscribe  for  new  shares  Is- 
sued by  a  corporation  as  an  increase  of  its 
capital  stock  in  preference  to  outsiders  is 
well  established,  and  is  called  a  shareholder's 
pre-emptive  right  1  Machen  on  Corpora- 
tions, S  608;  7  Ruling  Case  Lew,  176  r  1 
Cook  on  Corporations  (7tb  Ed.)  |{  70,  286. 
614,  663.  In  some  cases  it  has  been  held  that 
the  right  does  not  exist  as  to  the  original 
authorized  capital,  but  only  as  to  an  increase 
of  authorized  capitaL  1  Machen  on  Corpora- 
tions, i  61&  But  this  is  not  clear,  and  It  is 
difficult  In  particular  cases  to  detennlne 
what  can  rightly  be  called  a  new  issue  of 
stock,  as  for  instance,  where  the  authorized 
capital  stock  was  not  increased  by  authority 
of  law,  and  the  new  issue  of  shares  were 
part  of  the  capital  stock  as  originally  au- 
thorized, but  Issued  after  a  substantially 
long  period  subsequent  to  the  original  issue 
of  shares.  New  shares  cannot  be  issued  for 
an  improper  purpose,  as  for  instance,  to 
maintain  control  of  the  corporation.  These 
principles  are  stated  in  2  Cook  on  Corpora- 
tions (7th  Ed.)  i  614. 

[3]  But  these  principles  have  no  applica- 
tion to  this  case.  In  1906  Paul  Bright  was 
given  the  exclusive  right  to  take  at  par  one 
hundred  thousand  dollars  of  shares  of  the 
company  without  limit  of  time.  At  that  time 
the  legally  authorized  capital  stock  of  the 
company  was  and  still  is  two  hundred  and 
fifty  thousand  dollars,  and  one  hundred  thou- 
sand dollars  of  it  had  then  been  Issued  and 
was  then  outstanding.  Those  who  then  bdd 
shares  of  stock  of  the  company  could  proba- 
bly have  asserted  their  rights  In  opposition 
to  this  grant  to  Bright.  Whether  they  can 
still  do  so  need  not  now  be  considered,  for 
none  of  them  are  complainants  in  this  case. 
All  of  the  complainants  acquired  their  stock 
subsequent  to  the  original  and  the  later 
action  of  the  company  granting  and  confirm- 
ing the  option,  and  subsequent  to  the  meet- 
ing of  the  stockholders  thereof  held  lu  190d. 
at  which  meeting  the  action  of  the  board  of 
directors  in  giving  the  original  aptXoti  and 
in  extending  it  to  any  shares  to  be  issued 
after  the  capital  stock  had  been  increased  be- 
yond two  hundred  and  fifty  thousand  dol- 
lars was  oonflrmed  by  the  stodiholdefK. 
None  of  the  complainants,  except  Maginnis, 
are  shown  to  have  had  knowledge  of  the  a^ 
tlon  prior  to  acquiring  their  shares.  Magin. 
nis  when  he  bought  his  shares  knew  of  tbe 


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affairs  of  the  company  fully,  and  presumably 
knew  of  this  option. 

One  who  acquires  shares  of  stock  of  a 
corporation  after  the  corporation  by  action 
of  its  officers,  directors  and  stockholders  has 
given  to  a  stranger  an  exclusive  right  to  take 
and  pay  for  at  par  all  of  the  unissued  shares 
of  the  company,  cannot  assert  as  against  the 
company,  or  the  holder  of  the  option,  the 
general  pre-emptive  right  of  shareholders  of 
a  corporation.  No  authority  was  cited  or 
found  for  or  against  the  above  proposition, 
but  it  is  clearly  sound  and  based  on  funda- 
mental considerations.  As  between  the  cor- 
poration and  the  holder  of  the  option  such  a 
contract  is  valid,  and  can  be  held  Invalid 
only  at  the  Instance  and  for  the  benefit  of  a 
stockholder  who  asserts  his  right  to  take  the 
stock,  and  whose  right  has  been  impaired  by 
the  giving  of  the  option.  If,  however,  before 
a  particular  person  became  a  shareholder  an- 
other person  has  acQulred  an  option  incon- 
sistent with  the  pre-emptive  right,  then  the 
latter  Is  subservient  to  the  former  right 
When  the  original  contract  was  made  be- 
tween Bright  and  the  company,  it  might 
have  been  Invalid  for  lack  of  consideration ; 
but  when  later  the  stockholders  at  the  meet- 
ing in  1909  ratified  it  and  extended  Its  scope, 
there  was  then  consideration  based  on  the 
advances  or  other  financial  assistance  given 
and  continued  to  the  company  by  the  holder 
of  the  option. 

Did  the  extension  of  the  option  so  as  to 
make  it  include  shares  to  be  thereafter  Is- 
sued by  the  company  when  the  capital  stock 
should  be  Increased  by  law  Invalidate  the 
agreement,  or  give  the  complainants  a  right 
to  have  it  declared  inoperative  in  so  far  as 
It  limits  their  rights  as  stockholders?  Prob- 
ably not,  for  reasons  hereinabove  stated. 
Bnt  inasmuch  as  the  limit  of  authorized  capi- 
tal stock  has  not  yet  been  increased,  the 
question  is  not  now  a  vital  one  fbr  the 
present  solution. 

[4,  S]  It  is  Immaterial  that  some  of  the 
complainants  bad  no  tcnowledge  or  notice  of 
the  existence  of  the  option  before  acquiring 
their  shares,  for  there  was  no  representation 
by  the  company,  or  the  holder  of  the  option, 
respecting  unissued  shares  upon  wMcb  the 
complainants  relied  to  their  detriment  or  dis- 
advantage. The  right  to  take  at  par  stock 
which  was  salable  at  more  than  par  did  not 
necessarily  Invalidate  the  option;  that 
would  depend  on  circumstances.  It  might  be 
80  inequitable,  oppressive,  or  unjust  as  to 
shock  the  conscience  of  the  court,  or  be 
fraudulent  or  without  consideration.  But  It 
Is  not  clear  that  this  contract  may  be  so 
characterized.  While  Bright  held  the  option 
it  may  not  have  been  advantageous  to  the 
Insurance  Ciompany.  But  after  it  bad  been 
acquired  by  the  Protective  Company  and  that 
company  had  made  large  advances  of  money 
to  the  Insurance  Company  to  enlarge  Its  busi- 
ness and  Increase  Its  profits  and  stability.  It 
was  not  and  is  not  so  glaringly  inequitable 


as  to  call  for  Its  annulment  by  this  court, 
particularly  If,  as  the  complainants  urged, 
the  advances  were  contributions,  made  with- 
out expectation  of  repayment. 

For  these  reasons,  then,  the  complainants 
are  not  entitled  to  have  the  option  contract 
set  aside  or  affected  in  so  far  as  It  relates  to 
the  stock,  of  the  company  as  originally  au> 
thorized,  without  deciding  upon  their  rights 
with  respect  to  shares  In  case  -the  capital 
stock  of  the  company  be  increased. 

[6]  Does  the  contract  made  by  the  Insur- 
ance CJompany  with  Bright,  and  subsequently 
assigned  to  the  Protective  Company,  violate 
the  rule  against  perpetuities?  Is  a  contract 
by  which  one  corporation  gives  an  option  to 
take  and  pay  for  at  a  fixed  price  all  of  the 
unissued  shares  of  Its  capital  stock  invalid 
because  it  violates  the  rule  against  perpe- 
tuities? According  to  the  authorities  dted 
by  the  complainants,  an  unlimited  option  to 
purchase  land  is  a  contract  in  restraint  of 
alienation  of  land  and  against  public  policy, 
and  therefore  void.  Barton  v.  Thaw,  246 
Pa.  348,  92  AtL  312,  Ann.  Cas.  1916D,  570; 
London,  etc.,  Co.  v.  Gomm,  20  Ch.  Div.  562. 
In  general  the  rule  against  remoteness  in 
the  time  of  vesting  future  interests  applies 
to  personalty  as  well  as  realty.  Lewis  on 
Perpetuities;  Gray  on  Perpetuities,  {  202. 
But  almost  all  of  the  cases  in  which  the  rule 
has  been  applied  to  personalty  the  Instru- 
ment by  which  the  future  right  was  created 
related  to  land,  such  as  leaseholds  or  chattels 
real.  In  three  Maryland  cases  cited  the  rule 
was  applied  to  bequests  of  future  interests  in 
slaves.  Johnson  v.  Llsh,  4  Har.  &  J.  (Md.) 
441;  Matthews  v.  Daniel,  3  N.  C.  346;  Hat- 
ton  V.  Weems,  12  Gill  &  J.  (Md.)  83. 

However,  the  real  purpose  of  the  rule  was 
to  prevent  inalienability  of  land,  1.  e.,  to 
prevent  Its  being  tied  up  for  an  unreasonably 
long  period  whereby  it  was  kept  out  of  com- 
merce. Public  policy  was  the  reason  for  the 
rule.  This  was  peculiarly  applicable  to  land 
and  Interests  In  land. 

Has  It  any  relation  to  contracts  as  to 
shares  of  stock  of  a  private  business  corpora- 
tion? There  is  no  principle  of  public  policy 
involved.  It  can  make  no  diiference  to  the 
general  public,  or  to  any  one  other  than 
stockholders  of  that  particular  company.  To 
tie  up  land,  which  is  the  source  of  all  wealth. 
Is  quite  a  different  thing  from  giving  an  un- 
limited option  to  buy  all  unissued  shares  of  a 
corporation  doing  a  private  business.  No 
case  has  been  produced  or  found  which  so 
extends  the  rule  respecting  real  estate  and 
Interests  In  real  estate,  however  sound, 
wholesome  and  well  established  the  rule  be 
with  respect  to  land,  and  I  do  not  feel  jus- 
tified in  extending  it  to  the  stock  option,  and, 
therefore,  cannot  hold  the  option  contract 
entirely  Invalid  for  either  of  the  reasons 
urged. 

[7]  Was  the  plan  by  which  financial  assist- 
ance was  given  to  the  Insurance  Company  by 
the  Protective  Company  Illegal  or  unfair  to 


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the  Insurance  Company?  It  was  clearly 
sbown  that  free  working  cash  capital  was 
very  important  to  the  rapid  development  and 
success  of  the  business  of  a  life  insurance 
company,  and  particularly  where  it  is  issu- 
ing policlea  called  industrial  insurance.  An 
important  element  in  such  success  is  the  size, 
or  number,  of  policies  issued.  Where  the 
company  is  a  new  one  the  coat  of  getting  new 
business  for  a  time  exceeds  the  premiums  re- 
ceived from  holders  of  the  policies.  The 
capital  stock  of  the  company  cannot  under 
the  laws  of  this  State  be  used  for  such  work- 
ing capital,  for  it  must  be  maintained  intact 
The  working  capital  is  secured  by  accumu- 
lating, or  acquiring  surplus  funds  for  the 
purpose,  and  this  surplus  may  be  obtained 
by  contributions  thereto  by  stockholders  as 
a  part  of  their  subscriptions  to  ehares  of 
stock,  or  from  a  group  of  stockholders.  Of 
course,  surplus  earnings  may  be  used  for 
such  working  capital.  An  insurance  compa- 
ny may  make  earnings  from  several  sources, 
e.  g.  (1)  by  gains  on  mortality ;  (2)  excess  in- 
terest earnings;  (3)  margins  on  surrenders 
and  lapses,  each  of  which  have  a  technical 
meaning,  and  may  be  calculated  with  rea- 
sonable certainty.  These  earnings  must  be 
reported  to  the  Insurance  Commissioner, 
and  In  a  8toc4c  company  issuing  such  policies 
as  the  Home  Life  Insurance  Company  of 
America  belong  to  the  shareholders,  and  may 
be  used  to  acquire  new  business.  But  as  stat- 
ed above,  these  sources  do  not  provide  suffi- 
cient money  to  obtain  a  rapid  growth,  and 
additional  money  is  necessary  and  is  usual- 
ly obtainable  by  contributions  or  advances. 

The  Protective  Company  was  organized  as 
a  holding  company  and  to  supply  such  sur- 
plus to  the  Insurance  Company  and  did  make 
contributions  or  advances  from  time  to  time 
aggregating  about  four  hundred  and  seven- 
ty thousand  dollars,  of  which  about  eighty 
thousand  dollars  had  been  repaid.  In  return 
for  this  financial  help  the  Protective  Compa- 
ny had  an  exclusive  right  to  take  at  par  the 
unissued  stock  of  the  Insurance  Company 
and  the  stockholders  of  the  Insurance  Com- 
pany at  the  meeting  in  January,  1908,  voted 
that  all  of  its  surplus  be  paid  to  the  Protec- 
tive Company  for  such  ''financing."  Later 
the  repayments  were  to  be  made  only  out  of 
surplus  in  excess  of  ten  thousand  dollars,  or 
in  case  of  dissolution  out  of  the  assets  of  the 
Insurance  Company  as  a  debt. 

In  substance,  then,  the  Insurance  Company 
obtained  from  the  Protective  Company  money 
with  which  to  acquire  new  business  under  an 
agreement  to  repay  the  money  only  from 
its  surplus  In  excess  of  ten  thousand  dollars, 
except  In  case  of  its  dissolution,  when  the 
moneys  furnished  were  to  be  treated  as  a 
debt  due  from  the  Insurance  Company  to  the 
Protective  Company.  Was  this  unlawful  or 
unfair? 

In  simple  terms,  the  question  is  whether 
an  Insurance  company  may  lawfully  make  a 


contract  by  whidt  It  Iwrrows  money  to  be 
spent  in  acquiring  new  business  and  agree  to 
repay  the  money  only  out  of  Its  surplus  earn- 
ings, unless  the  company  be  dissolved,  and 
then  the  money  borrowed  Is  to  be  treated  as 
other  debts  of  the  company  are  treated? 

More  broadly  stated  the  question  is,  wheth- 
er it  is  wrong  for  an  Insurance  company  to 
borrow  money  to  be  spent  to  acquire  new 
business?    There  Is  but  one  rational  answer 
to  that  query.    It  being  shown  that  such  a 
use  of  money  by  an  insurance  company  was 
evidence  of  good  business  management,  was 
like  sowing  seed  for  a  future  sure  harvest, 
and  there  being  no  evidence  of  inefficiency  in 
the  expenditure  of  the  money,  it  is  not  wrong 
for  this  insurance  company  to  borrow  money 
for  such   purpose.     If  properly   spent  the 
money  brings  in  a  crop  of  good  business,  and 
until  the  new  business  comes  in  the  value  of 
the  company  is  increased  by  the  expenditure 
which  will  bring  in  the  profitable  new  busi- 
ness.    It  certainly  Is  not  wrong  to  borrow 
money  for  such  purpose,  if  the  borrower  is 
not  obliged  to  repay  it  except  from  the  profit 
he  makes  in  the  use  of  it    Sudi  a  Iwrrower 
cannot  be  made  insolvent  because  of  the  bor- 
rowing of  the  money,  for  he  cannot  be  made 
to  repay  it  unless  he  makes,  a  profit  from  the 
use  of  it    The  capital  of  the  Insurance  Com- 
pany could  not  have  been  impaired  by  bor- 
rowing money  for   such  purposes  In  sndi 
manner.    As  explained  qbove,  it  could  never 
be  impaired  if  the  debt  is  payable  from  sur- 
plus, which  is  net  profit,  or  earnings.    Nei- 
ther would  it  be  impaired  if  payable  gener- 
ally, because  for  every  dollar  so  spent  for 
new  business  the  value  of  the  business  wonld 
be  increased  to  that  extent  so  that  the  vol- 
ume of  new  business  obtained  from  the  use 
of  the  money  so  borrowed  would  be  an  asset 
and  so  balance  the  liability  arising  from  tlie 
loan   of   the   money.     This  seems  a  funda- 
mentally sound  and  common  sense  proposi- 
tion.     Fiirthermore,    the   soundness   of  the 
proposition   was   apparently    shown   by   the 
calculations  as  to  the  present  liquidating  val- 
ue of  the  business  of  the  company  based  oa 
prices  usually  paid  on  sales  of  such  a  busi- 
ness.   See  Schedule  O  of  Defendants'  Exhibit 
No.  23  and  statement  and  testimony  of  Hog- 
gins in  relation  thereto. 

Therefore,  if  the  above  principles  are 
sound,  and  they  seem  to  be  so,  the  plan  b; 
which  the  Protective  Company  advanced  or 
loaned  money  to  the  Insurance  Company  to 
be  used  for  the  acquisition  of  new  business 
and  to  be  repaid  with  interest,  only  from 
surplus,  or  according  to  the  later  arrange- 
ment, only  from  surplus  acquired  by  the 
Insurance  Company  in  excess  of  ten  thou- 
sand dollars,  and  not  to  be  treated  as  a  lien 
or  debt  due  by  the  Insurance  Company,  ex- 
cept in  case  of  its  dissolution,  was  not  in- 
valid, fraudulent,  oppressive,  unfair,  nnrea- 
sonable,  unwise,  or  objectionable  in  any  way. 
so  far  as  the  Insurance  Company  and  its 


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KINOSTOK  ▼.  HOME  LIFE  INS.  OO.  OF  AM£JEII0A 


903 


(tocUtoIdeiB  «ere  concerned.  It  wonld  not 
have  been  objectionable  If  the  money  had 
been  loaned  to  the  Insurance  Company  by 
Its  president,  or  by  its  officers,  or  by  its  of- 
ficers and  directors,  or  by  any  of  its  stock- 
holders. Nor  would '  It  be  objectionable  If 
made  by  another  corporatioo  the  officers  and 
directors  of  which  are  also  tbe  officers  and 
directors  of  the  Insurance  Company,  even 
if  the  lending  company  owned  a  majority  of 
the  shares  of  stock  of  the  Insurance  Com- 
pany, for  the  contract  itself  being  unobjec- 
tionable it  is  quite  nnimportant  as  to  the 
Boorce  from  which  the  money  is  borrowed. 
Indeed,  it  would  be  more  likely  to  be  bene- 
ficial to  the  Insurance  Company,  and  so  to 
Its  stockholders,  if  the  money  was  advanced 
by  persons  having  an  interest  in  it  as  stock- 
holder or  officer,  for  obviously  the  probability 
of  its  being  used  most  efficiently  and  profit- 
ably is  Increased  thereby. 

In  this  case,  then,  the  complainants  cannot 
base  any  relief  on  the  fact  that  the  Protective 
Company  advanced  money  to  the  Insurance 
Company  to  be  used  to  acquire  new  business 
under  a  plan  by  which  the  Insurance  Com- 
pany agreed  to  repay  the  loans  only  out  of 
its  surplus  In  excess  of  ten  thousand  dollars 
and  under  an  agreement  that  the  moneys 
should  not  be  treated  as  a  debt  except  In  case 
the  Insuitince  Company  be  dissolved.  Nor 
would  the  result  be  held  different  because  the 
Protective  Company  had  been  given  by  the 
Insurance  Company  the  exclusive  right  to 
take  and  pay  for  its  unissued  shares  of  stock 
at  par,  and  so  had  secured  a  permanent  iiow- 
er  to  control  the  Insurance  Company.  Nei- 
ther the  plan  by  which  the  Insurance  Compa- 
ny was  assisted  financially,  nor  the  method  of 
executing  it,  was  unfair  or  illegal,  except  as 
to  the  misrepresentationa  and  concealments 
to  be  considered  later. 

It  is  contended  strongly  for  the  complain- 
ants that  the  plan  of  the  Protective  Company 
for  financing  the  Insurance  Company  must 
have  been  unfair  and  unlawful  because  so 
many  of  the  dealings  between  the  two  compa- 
nies were  misrepresented  and  concealed  in 
the  books  of  the  Insurance  Company  and  in 
its  reports  to  the  Insurance  Commissioners, 
the  books  of  the  Insurance  Company  being 
kept  by  or  under  the  direction  of  the  same 
person  or  persons  who  kept  the  books  of  the 
Protective  Company.  It  was  shown  that  un- 
til 1913  advances  were  charged  on  the  books 
of  the  Protective  Company  to  the  profit  and 
loss  account,  which  means  that  they  were  not 
considered  as  assets,  or  as  debts  to  be  repaid 
to  the  Protective  Company.  The  books  of  the 
Insarance  Company  show  no  liability  what- 
ever, contingent  or  otherwise,  to  repay  the 
moneys  advanced,  although  they  are  shown 
on  the  books  of  the  Protective  Company 
since  1013  as  an  asset.  In  the  reports  to  the 
Insurance  Commissioners  the  advances  were 
not  stated  as  liabilities,  although  the  Insur- 
ance Company  was  called  upon  to  state  in 


the  report  all  its  liabilities.  There  were  ac- 
tual misrepresentations  in  these  reports  as 
to  the  source  from  which  the  advances  were 
received,  they  being  called  "bonus  on  stock." 
Also  misrepresentations  as  to  the  expendi- 
tures of  the  moneys  so  advanced,  payments  of 
interest  being  entered  as  cost  of  business  pur- 
chased, or  agents'  balances  and  otherwise. 

These  misrepresentations,  concealments 
and  irregularities  of  stating  the  dealings  oT 
the  two  corporatlcms  cannot  be  Justified.  If 
the  plan  of  cooperation  was  considered  fair 
and  right,  why  conceal  or  misrepresent  the 
transactions?  The  complainants  insist  that 
the  purpose  was  fraud  on  the  stockholders 
who  were  solicited  to  take  shares.  But  this 
does  not  get  very  tar  if  the  plan  be  in  fact 
innocent  in  its  scope  and  purpose,  and  not 
unfair  or  unlawfuL  The  deceptions,  there- 
fore do  not  give  the  complainants  any  right 
to  relief,  which  is  the  only  question  before 
the  court  Stockholders'  rights  are  not  af- 
fected by  reason  of  the  deceptions  and  this 
court  need  not  act  for  the  Insurance  Commis- 
sioner, unless  requested  to  do  so.  It  is  quite 
Immaterial,  though  Interesting,  that  until 
the  litigation  started  the  officers  and  directors 
of  the  Insurance  Company  held  few  of  its 
shares,  while  the  same  people  were  large 
holders  of  shares  of  the  Protective  Company. 

There  con  be  no  real  doubt  that  there  is 
now  a  binding  obligation  by  the  Insurance 
Company  to  repay  to  the  Protective  Company 
the  advances  from  surplus  in  excess  of  ten 
thousand  dollars.  Even  if  prior  to  1915  the 
moneys  received  from  the  Protective  Compa- 
ny by  the  Insurance  Company  were  contribu- 
tions or  gifts,  and  so  not  to  be  repaid,  and 
were  advances  or  loans  to  be  repaid,  still 
after  the  action  of  the  stockholders  at  the 
meeting  held  that  year  there  was  no  doubt 
but  that  they  constituted  a  debt  to  be  repaid 
in  the  manner  agreed  upon. 

Has  the  investment  of  the  stockholders 
been  Jeopardized  by  the  illegal  payment  of 
dividends  and  by  an  impairment  of  the  cap- 
ital stock?  Each  of  these  charges  is  grave 
and  involves  serious  consequences  if  suatain- 
ed  by  the  evidence. 

[II  The  prayer  of  the  bill  on  the  subject  is 
for  an  injunction  to  prevent  the  officers  of 
the  Insurance  Company  from  declaring  or 
paying  any  dividend  upon  its  stock  except  out 
of  actual  earnings.  This  may  be  granted 
without  much  consideration  of  the  facts,  be- 
cause it  would  be  but  a  declaration  of  tho 
statute  law  of  the  State  which  i)ermlts  divi- 
dends to  be  paid  only  out  of  surplus  or  net 
profits  arising  from  the  business  of  the  com- 
pany. 

It  is  extremely  difficult  for  anyone  who 
has  not  had  large  experience  in  the  prac- 
tices and  iHJok-keeplng  theories  of  life  insur- 
ance companies,  or  as  an  expert  actuarial  ac- 
countant, to  decide  what  in  a  given  case  con- 
stitutes the  surplus  or  net  profits  of  the 
business  of  an  insurance  company.  Some 
things  seem  clear  even  to  me,  and  one  is  that 


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101  ATIiANTIC  RBPOBTEB 


a>eL 


an  estimated  Increase  In  the  value  of  the 
building  owned  by  the  Insurance  Company 
and  occulted  by  Its  officers  and  employees, 
however  accurately  the  increase  be  estimated, 
la  not  a  net  profit  arising  from  the  business 
of  the  company.  If  it  la  an  Investment  of 
capital  of  the  company  its  increased  value 
when  realized  by  a  sale  may  perhaps  be 
treated  as  a  profit,  but  tmtll  realized  it  Is 
surely  unwise.  Inaccurate  and  wrong  to  so 
regard  It  and  pay  out  money  based  on  such 
an  estimate,  for  it  is  only  a  guess,  and  if  a 
correct  one  it  may  become  Incorrect  inter 
when  the  conditions  which  produced  the  esti- 
mated Increase  of  value  change. 

Again,  a  profit  of  the  business  of  fifteen 
thousand  dollars  is  not  made  if  an  officer  of 
the  company  authorized  to  buy  for  the  com- 
pany with  its  money  real  estate  for  sixty 
thousand  dollars  buys  it  for  forty-five  thou- 
sand dollars.  The  assets  of  the  company  are 
not  increased,  and  the  saving  is  not  a  profit 
of  the  business  which  can  be  paid  out  in 
money  as  dividends. 

The  defendants  undertook  to  show  by  an 
actuarial  insurance  expert  that  all  the  divi- 
dends declared  were  earned,  and  for  this 
purpose  a  schfidule  with  complicated  calcula- 
tions made  for  the  purpose  was  submitted  to 
prove  the  fact  The  data  of  Schedule  B  of 
Defendants'  Exhibit  No.  23  were  taken  from 
the  books  of  the  two  companies,  but  the  basis 
of  a  very  important  part  of  the  calculation 
was  arbitrarily  selected  by  the  expert,  and 
as  there  would  be  differences  of  opinion  as 
to  this  selection,  the  whole  calculation  had 
little  probative  value.  Taking  the  funda- 
m«>tal  fact  as  shown  by  the  schedule  and  not 
disputed,  the  income  was  less  than  disburse- 
ments, and  the  attempt  to  explain  the  result- 
ant deficit  was  not  convincing. 

[1, 10]  Assuming,  then,  that  dividends  were 
paid  otherwise  than  out  of  the  surplus  or  net 
profits  of  the  business  of  the  Insurance  Com- 
pany, what  power  has  this  court  to  give  re- 
lief In  this  case  by  reason  thereof?  The 
statutory  liability  of  those  officers  who  de- 
clare the  dividend  could  not  be  enforced 
against  them  in  this  cause,  for  they  are  not 
parties  to  it.  An  injunction  against  future 
unlawful  payments  would,  of  course,  be  made 
In  general  terms.  But  that  was  hardly  the 
purpose  of  the  bill.  The  illegal  payment  of 
dividends  would  not  of  itself  justify  the  ap- 
pointment of  a  receiver.  Such  payments  may 
be  part  of  an  unlawful  plan,  or  be  evidence  of 
such  gross  incapacity,  recklessness  and  fraud 
as  to  justify  this  court  in  taking  the  control 
and  management  of  the  company  from  its 
officers  and  directors  for  some  useful  purpose. 
But  in  this  case  the  only  purpose  of  a  receiv- 
ership would  be  a  winding  up  and  liquida- 
tion, for  a  receivership  to  carry  on  Indefinite- 
ly the  business  of  the  company  would  be  an 
Intolerable  suggestion,  as  was  found  by  the 
court  in  Carson  v.  AUegliany  Window  Glass 
Co.  (0.  C.)  189  Fed.  791,  799. 


If  the  complainants  desire  to  porane  this 
branch  of  the  case  further  by  amendments 
to  the  prayers  of  the  bill,  it  will  probably 
be  necessary  to  refer  this  branch  of  the  case 
to  an  insurance  expert  as  Master  to  ocmsider 
the  evidence  and  report  thereon  whether  dlv* 
Idends  have  been  declared  otherwise  than 
from  the  surplus  or  profits  of  the  business 
of  the  Insurance  Company.  An  opportonity 
will  be  given  to  counsel  to  be  heard  on  tbli 
point  before  entering  a  decree. 

[11]  Has  there  been  an  lmpairm«it  of  the 
capital  of  the  Insurance  Cmnpany?  As  evi- 
dence of  the  impairment  of  capital  it  is  urged 
by  the  complainants  that  the  value  of  the 
real  estate  in  Philadelphia  owned  by  the  In- 
surance Company,  and  whidi  is  stated  in 
its  reports  to  be  one  hundred  and  eighty- 
three  thousand  dollars,  is  much  exaggerated 
and  should  not  be  in  excess  of  one  hundred 
thousand  dollars;  that  on  December  31,  191S, 
the  surplus  as  shown  by  the  last  report  of 
the  company  made  to  the  Insurance  Commis- 
sioner was  about  twenty  thousand  dollars; 
that  If  the  real  estate  was  overvalued  more 
than  twenty  thousand  dollars,  the  capital 
was  impaired;  and  that  if  the  advances  by 
the  Protective  Company  to  the  Insurance 
Company,  aggregating  about  three  hundred 
and  sixty  thousand  dollars,  constitute  a  debt, 
then  the  capital  of  the  Insurance  Company 
is  entirely  wiped  out. 

From  the  testimony  It  Is  quite  clear  that 
the  contention  of  the  complainants  on  this 
point  is  correct  The  value  of  the  real  es- 
tate was  much  too  high  as  reported  in  the 
statements  of  the  Insurance  Company.  Dif- 
ficult as  it  is  to  estimate  values  even  of  real 
estate,  it  is  surely  unwise  to  value  this 
property  at  one  hundred  and  eighty-three 
thousand  dollars,  and  it  is  certainly  worth  at 
least  twenty  thousand  dollars  less  than  that 
sum  and  nearer  one  bundled  thousand  dol- 
lars than  one  hundred  and  eighty-three  thou- 
sand dollars.  The  extent  of  the  impair- 
ment of  capital  is  not  important  here.  But 
it  does  not  follow  that  this  court  should 
for  that  reason  now  wind  up  the  affairs  of 
the  company  by  a  receivership.  The  stat- 
utes of  the  State  give  to  the  Insurance  Com- 
missioner large  powers  and  impose  upon 
him  Important  duties  respecting  the  conduct 
of  business  of  insurance  companies  doing 
business  here.  The  question  of  the  impair- 
ment of  capital  is  peculiarly  for  his  consid- 
eration, as  also  would  it  be  his  duty  to  de- 
cide what  the  consequences  thereof  would  be, 
and  this  court  should  not  act  so  as  to  inter- 
fere with  his  official  disposition  of  the  facta 
— «ertalnly  not  in  advance  of  his  acting  or 
refusing  to  act  There  Is,  however,  no  in- 
tention of  disclaiming  the  jurisdiction  of  this 
court  by  declining  at  this  time  to  exercise  it 

It  is  a  notable  fact,  apparently  established 
by  the  testimony  of  the  actuarial  expert,  that 
the  liquidating  value  of  the  business  of  the 
Insurance  Company  la  sufficient  to  repay  the 


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WILLIAMS  T.  BELTZ 


905 


ProtectlTe  Company  all  their  adrances  and 
still  make  the  net  value  of  each  share  of  the 
lusnrance  Company  from  about  twenty-two 
dollars  to  twenty-four  dollars  per  share,  the 
par  value  being  ten  dollars.  See  Schedule  O 
of  Defendant's  Exhibit  Na  23.  There  are 
other  signs  that  the  connection  of  the  two 
companies  has  been  beneficial  rather  than 
detrimental.  This  may  not  of  Itself  be  an  an- 
swer to  all  the  charges  made  in  the  bill,  but 
may  fairly  Influence  judicial  discretion  as 
to  remedies. 

[12]  Should  the  Walsh  contract  be  an- 
nulled? It  was  claimed  by  the  complainants 
that  Basil  S.  Walsh,  the  president  of  the 
company,  obtained  from  the  company  in  190S 
a  contract  concerning  commissions  whidi 
was  anfalr  to  the  company,  and  that  in  the 
report  to  the  Insurance  Commissioner  this 
was  concealed.  It  Is  true  that  when  called 
upon  to  state  In  the  report  whether  any  of 
the  officers  of  the  company  were  paid  com^ 
missions,  Walsh  under  oath  answered  no. 
His  explanation  is  that  the  contract  had  so 
far  been  unprofitable  and  for  that  reason 
be  thought  he  was  answering  correctly.  But 
this  is  not  a  satisfactory  explanation.  He 
assumed  as  worth  its  face  value  a  certain 
worthless  account  owing  to  the  Insurance 
Company,  and  by  reason  thereof  the  company 
was  able  to  make  a  better  showing  in  its 
reports  to  the  Insurance  Commissioner.  In 
consideration  of  the  assumption  of  the  worth- 
less account  Walsh  receives  a  very  large 
part  of  the  premiums  on  commissions.  It 
does  not  appear  that  the  company  is  any 
better  oflT  by  reason  of  the  contract,  and  on 
the  other  hand  it  does  not  seem  so  grossly 
tmfair  to  the  company  as  to  Justly  action 
by  this  court  to  annul  it,  if  the  court  has  a 
right  to  do  so.  Mr.  Walsh  has  in  his  testi- 
mony offered  to  surrender  his  contract  if  it 
Is  considered  unfair.  But  his  deceptive  state- 
ment in  the  report  is  apparently  the  worst 
feature  of  the  matter.  By  the  testimony  he 
did  not  vote  on  the  motion  when  the  board 
of  directors  decided  to  accept  his  prtq)osi- 
tion,  and  there  appears  to  be  no  breach  of 
the  trust  arising  from  bis  official  position  in 
bis  dealings  with  the  company.  Certainly 
the  making  of  the  contract  does  not  Justify 
the  appointment  of  a  receiver  of  the  com- 
pany for  any  purpose,  and  there  is  no  spe- 
cial prayer  for  relief  as  to  the  contract 

On  the  whole,  then,  notwithstanding  the 
deceptions,  concealments  and  misstatements 
In  the  book-keeping  and  reports  to  the  In- 
surance Commissioner,  and  though  dividends 
may  have  been  declared  other  than  from 
surplus  or  net  profits  of  the  business  of  the 
company,  and  even  though  the  capital  of  the 
company  may  In  a  sense  have  been  impaired, 
still  neither  one  nor  all  of  these  misdeeds, 
indefensible  and  as  reprehensible  as  they 
are,  Justify  this  court  in  taking  action 
against  the  company,  such  as  is  sought,  or 


I  any  other.  Some  of  the  ills  are  righted  by 
exposure,  others  may  be  righted  by  the  In- 
surance Commissioner,  and  all  of  them  to- 
gether do  not  warrant  a  court  in  taking  the 
administration  of  the  affairs  of  the  company 
from  the  hands  of  its  officers. 

Having  determined  that  the  stock  option 
was  not  invalid,  and  that  the  arrangement 
by  which  the  Protective  Company  advanced 
money  to  the  Insurance  Company  was  not 
Illegal  or  nnfalr,  there  is  no  relief  which 
this  court  can  grant  to  the  complainants,  ex- 
cept an  injunction  against  declaring  divi- 
dends except  out  of  surplus  or  net  profits. 

It  should  be  commented  that  the  books 
and  papers  of  both  defendant  companies 
have  been  voluntarily  laid  open  to  full  in- 
spection by  the  complainants. 

Unless,  therefore,  the  complainants  be  giv- 
en some  relief  based  on  the  payment  of  divl^ 
dends,  the  dismissal  of  the  biU  would  fol- 
low. 

Inasmuch  as  the  concealments  and  decep- 
tions in  the  reports  made  by  the  Insurance 
Comiwny  were  probably  largely  responsible 
for  litigation,  a  part  at  least  of  the  costs 
should  be  put  on  the  two  defendants,  for  the 
identity  of  their  managers  imposes  on  eadi 
of  them  a  responsibility  for  the  situation. 


WILLIAMS   V. 


«  Boyce,  EC4) 
BELTZ  et  aL 


(Superior  Court  of  Delaware.    New  Castle. 
June  4,  1917.) 

1.  GoKPOBATiORs  «=s>116— Sam   of  Stock— 
Wbat  Law  Govesnb. 

An  action  to  recover  damages  for  alleged 
fraudulent  misrepresentations  by  defendant  with 
rMpect  to  sale  of  stock  in  a  mining  company, 
where  the  sole  and  the  circumstances  of  the 
sale  oecnrred  in  Pennsylvania,  was  governed  by 
the  law  of  that  state  in  so  far  as  applicable  to 
the  facts  in  the  case. 

2.  CoBPOBAnoNs  «=3ll6  —  Satx  of  S-rooK— 

FBAtrDtTLENT    RePBEBXI«TATI0N9— VaI.UK    OF 

MtNiRo  Stock. 
A  representation  by  defoidant,  on  Ute  sale 
of  stock  in  a  mining  company,  that  its  liabili- 
ties then  amounted  to  |1,6CI0,  and  a  fUlare  to 
disclose  the  existence  of  defendant's  contract 
with  the  company,  capitalized  at  $25,000,  where- 
by be  was  to  receive  $36,000  out  of  the  com- 
pany's net  profits  in  payment  of  money  previ- 
ously spent  by  him  in  its  development,  was  a 
misrepresentaaon  of  a  fact  affecting  the  value 
of  its  stock. 

On.  Motion  for  New  Trial  and  Arrest  of  Jndf- 
ment. 

3.  COBPOBATIONB  «=>  121(7)— SaXK  OF  STOOK— 

Meabube  OF  Dauaoes. 
The  measure  of  damages  for  a  false  represen- 
tation of  a  material  fact  affecting  the  value  of 
mining  stock  is  the  difference  between  the  real 
value  of  the  stock  at  the  time  of  the  purchase 
and  what  the  purchaser  was  induced  to  pay 
by  reason  of  the  misrepresentation. 

Action  of  deceit,  begun  by  foreign  attach- 
ment, by  Henry  L.  Williams  against  John 
Beltz  and  Francis  E.  McGUUck.     Directed 


^s>For  otbar  case*  see 


mme  toplo  and  KKT-NUMBBR  In  all  Ker-Numbered  DtgMtai  and  Indaza* 

Digitized  by  LjOOQ IC 


906 


101  ATLANTIC  BBPOETER 


CDd. 


verdict  for  defendants.    Motion  for  new  trial 
and  in  arrest  of  Judgment  denied. 

Argned  before  BICE  and  HBISESU  33- 

Daniel  O.  Hastings,  of  Wilmington,  and 
James  Balpb,  of  PJttsbnrg,  Pa.,  for  plain- 
tiff. Edward  G.  Bradford,  Jr.,  of  Wilming- 
ton, and  Tbomas  Watson,  of  Pittsburg,  Pa., 
for  defendants. 

The  plaintiff  seeks  to  recover  damages 
from  the  defendants,  for  alleged  fraudulent 
misrepresentation  by  the  defendants  with 
respect  to  the  sale  of  stock  in  a  mining  com- 
pany to  the  plaintiff. 

The  plaintiff  claims  that  J<An  BeltB,  one 
of  the  defendants,  owned  the  mining  inter- 
ests in,  and  was  engaged  in  the  development 
of,   a  lead   mine   In   Galena,   Illinois;    that 
Beltz  was  In  need  of  money  for  developing 
the  mine  and  made  arrangements  with  one 
Garrison,  in  Pittsburg,  Pennsylvania,  to  se- 
cure   for   him   the   necessary   money.     The 
plaintiff  in  October,  1912,  through  Garrison, 
became  Interested,  wltb  the  idea  of  investing 
money  in  the  venture.     The  plaintiff  went 
to  Galena  with  Beltz  to  inspect  the  mine; 
while  on  the  trip  be  made  inquiries  of  Beltz 
about  the  liabilities  of  the  mining  company, 
which  had  been  organized,  and  he  was  at 
the  time  informed  by  Beltz  that  the  com- 
pany's liablUtles  amounted  to  about  $1,600. 
The  plaintiff  in  April,  1913,  invested  ?1,000 
in  the  company,  for  which  he  received  20 
shares  of  the  company's  stock.    The  capital 
stock  of  the  company  amounted  to  $10,000. 
It  was  Increased  to  $26,000  in  September  fol- 
lowing, and  at  that  time  the  plaintiff  In- 
vested an  additional  $1,000,  and  $1,000  more 
in  November,  for  which  he  received  40  more 
shares  of  stock  In  the  company.     A  little 
In  excess  of  $24,000  worth  of  the  stock  was 
sold  and  the  plaintiff  owned  approximately 
one^elghth  of  the  stock  of  the  company.     In 
the  latter  part  of  November,  1913,  the  plain- 
tiff first  learned  of  the  existence  of  a  con- 
tract between  Beltz,  who  was  a  director  In 
the  company,  and  certain  other  directors  and 
stockholders  under  the  terms  of  which  Beltz 
was  to  receive  50  per  cent,  of  the  net  profits 
of  the   company  until  the  sum  of  $36,000, 
which  he  had  previously  expended  in  the 
development  of  the  mine,  had  been  paid  to 
him.    Belte  In  November,  1914,  brought  suit 
In  the  Pennsylvania  courts  against  Samuel 
Garrison,  F.  E.  McGilUck  (one  of  the  de- 
fendants herein),   George  H.   Futch,   J.-  R 
McGlnnls,  and  William  I.  N.  Lofland  for  the 
enforcement  of  the  contract,    the  Pennsyl- 
vania courts  held  the  contract  to  be  bind- 
ing  and   enforceable   against   the  .  company, 
and  Belts  was  paid  the  $36,000,  which  was 
to  be  paid  to  him,  under  the  terms  of  the 
contract,  out  of  the  net  profits  of  the  com- 
pany.    The  plaintiff  further  claims  tliat  by 
reason  of  the  payment  of  the  $30,00()  to  Beltz 
the  shares  of  stock  held  by  the  plaintiff  In 
the  company  have  greatly  decreased  in  value. 
The  sJc'tendauts  deny  that.thei".  wore  guilty 


of  any  ftandnlent  misrepresentation  whatever 
with  respect  to  the  sale  of  stock  to  the  plain- 
tiff and  contend  that  the  iasnea  In  the  pres- 
ent case  were  determined  in  the  form»  snlt 
in  the  Pmnsylvania  courts,  in  which  suit 
Henry  L.  Williams  the  plaintiff  in  the  pres- 
ent action  upon  his  own  petition  was  made 
<Hie  of  the  defendants.  The  def«idants  far- 
ther contend  that  the  plaintiff  did  not  snf- 
fer  damages  for  the  reason  that  the  com- 
pany paid  dividends  to  Williams  to  the  ex- 
tent of  365  per  cent,  on  his  investment 

The  plaintiff  at  the  trial  introduced  evi- 
dence to  show  the  allied  fraudulent  mis- 
representation, and  the  circumstances  sor- 
rounding  it;  the  amount  of  capital  stock  Is- 
sued by  the  company  and  the  proportionate 
share  owned  by  Williams;  the  terms  of  the 
contract  and  the  decree  of  the  courts  of 
Pennsylvania  with  respect  to  it  and  the  pay- 
ment by  the  company  of  the  $36,000  to  Belts 
under  the  terms  of  the  contract. 

BICE,  J.,  after  stating  the  facts  as  alMve, 
delivered  the  opinion  of  the  court. 

[1]  The  seventeenth  prayer  of  the  defend- 
ants is  In  the  following  language: 

"That  under  all  the  evidence  in  this  case  It 
is  the  duty  of  the  court  to  direct  the  jury  to 
find  a  verdict  for  the  defendants." 

As  a  preliminary  statement,  we  will  say 
that  it  is  admitted  by  counsel  for  the  plaintiff 
and  defendants  that,  as  the  alleged  fraudu- 
lent concealment  of  the  liabilities  of  the  com- 
pany, the  sale  of  the  stock  and  the  drcom- 
stances  surrounding  the  same,  took  place  In 
the  state  of  Pennsylvania,  the  law  of  that 
state  in  so  far  as  the  same  may  be  applicable 
to  the  tacts  In  this  case,  should  control  this 
court  in  the  consideration  and  determina- 
tion of  the  questions  of  law  here  raised. 

With  respect  to  the  defendant  Francis  E. 
McGilUck,  we  now  say  that  there  is  no  evi- 
dence In  the  case  to  support  the  plaintiff's 
allegation  of  fraud  against  McGliiick,  aod 
therefore  it  is  our  duty  to  direct  the  jury  to 
find  a  verdict  for  the  defendant  McGUlicb. 

Counsel  for  the  defendants  oont«id  tbat 
the  court  should  direct  the  Jury  to  find  a  ver- 
dict for  the  defendant  John  Belts,  for  the 
reason  that  the  rule  of  the  Pennsylvania 
courts  with  respect  to  damages  in  an  ac- 
tion of  viecett  for  fraud,  in  the  sale  of  stodc 
In  corporations,  is  the  differwice  between 
what  the  plaintiff  paid  for  ttie  stock  and  its 
actual  value  at  the  time  it  was  purchased 
and  that  there  is  no  evidence  in  tills  case  to 
show  that  at  the  time  of  the  purchase  the  val- 
ue of  the  stock, was  any  less  by  reason  of  the 
alleged  misrepresentation  than  the  plaintiff 
paid  for  it  In  support  of  this  contention  he 
dtes  the  recent  case  of  Curtis  v.  Buzard,  254 
Pa.  61,  98  AtL  777.  The  plaintiff  on  the 
other  hand  argues  that  the  court  should  not 
give  binding  instructions  in  favor  of  tlie  de- 
fendant Beltz,  for  the  reasons  assigned  by 
the  defendant,  and  contends  that  in  this  case 
Q»  plaintiff  is  entitled  to  such  damases  as 


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were  the  nataral  and  necessary  result  of  the 
false  mlsrepjesentation,  the  measnre  being 
the  amount  the  plaintiff  wouM  have  received 
of  the  136,000,  which  the  company  paid  to 
John  Belts,  the  defendant,  on  that  part  of 
plaintiff's  stock  purchased  before  the  alleged 
fraad  wax  discovered. 

In  support. of  Ills  contmtioa,  counsel  for 
the  plaintiff  dted  the  following  cases,  many 
of  the  cases  being  Pennsylvania  ones :  Smith 
on  the  Law  of  Fraud,  (  28»;  20  Cyc.  pp.  136, 
140;  Sutherland  on  Damages,  I  1171;  Veor 
nock  T.  TUford,  17  Pa.  466;  Thompson  t. 
Burgey,  36  Pa.  403;  Stetson  v.  Croskey,  62 
Pa.  230;  Seigworth  v.  Leffel,  76  Pa.  478; 
Bice  T.  Olln,  79  Pa.  391;  Gufley  v.  Clever, 
146  Pa.  648,  23  Atl.  161;  High  v.  Berret,  148 
Pa.  261,  23  Atl.  1004;  Lukens  v.  Aiken,  174 
Pa.  152,  34  AtL  675;  Weaver  v.  Cone,  174  Pa. 
104,  34  Atl.  551 ;  Drenning  &  Long  v.  Wesley, 
189  Pa.  160,  42  AU.  13;  West  Homeetead  v. 
Erbedc,  239  Pa.  192,  86  Atl.  773;  Curtis  v. 
Bnzard,  264  Pa.  61,  98  AtL  777;  Medbnry  v. 
Watson,  6  Mete.  (Mass.)  246,  39  Am.  Dec.  726; 
Morse  v.  Hntchlns.  102  Mass.  439;  Thomson 
V.  Pentecost,  210  Mass.  223,  96  N.  £].  335; 
Whitney  v.  Allaire,  1  N.  Y.  305;  Benedict  v. 
Trust  Co.,  91  App.  DIv.  108-107,  86  N.  Y. 
Sn]n>.  370;  Murray  v.  Jennings,  42  Conn. 
9. 19  Am.  Bep.  527 ;  Gustaf  son  v.  Rustemeyer, 
70  C<mn.  125,  39  AU.  104,  39  L.  R.  A.  644,  66 
Am.  St  Bep.  92 ;  Shanks  v.  Whitney,  66  Vt 
405,  29  Atl.  367;    Nysewander  v.  Lowraan, 

124  Ind.  684,  24  N.  E.  355 ;  Chapman  v.  Bible, 
171  Mich.  663,  137  N.  W.  633,  43  L.  B.  A. 
(N.  a)  378 ;   Kendrlck  v.  Byus,  225  Mo.  150, 

125  S.  W.  937,  135  Am.  St.  B^.  685;  Drake 
V.  Holbrook  (Ky.)  66  a.  W.  512. 

It  appears  from  an  examination  of  these 
cases  that  the  courts  of  Pennsylvania,  as 
well  as  many  other  courts,  recognize  the  rule 
of  damages  In  actions  of  deceit  for  fraud- 
ulent misrepresentations  affecting  the  value 
of  the  property  whether  real  or  personal,  to 
be  the  difference  between  the  price  paid  and 
what  the  value  would  have  been  if  it  had  been 
as  represented. 

[2]  Before  considering  the  question  whether 
^tber  rule,  and,  if  so,  wliich  one,  should  ob- 
tain In  this  case,  it  is  necessary  for  us  to 
first  determine  whether  the  alleged  fraudu- 
lent mlsTepresentation  on  the  part  of  the  de- 
fendant was  one  affecting  the  value  of  the 
stock  purchased,  or  whether  it  was  of  such 
a  nature  that  it  would  not  affect  the  value  of 
the  stock  purchased.  If  it  was  of  the  class 
which  would  affect  the  value  of  the  stock 
purchased,  then  one  of  the  rules  of  damages/ 
recognized  by  the  Supreme  Court  of  Penn- 
sylvania should  obtain;  if  it  should  prove  to 
be  of  the  other  class,  then  neither  rule  would 
aiiply  and  in  the  at)8<>nce  of  Pennsylvania  de- 
cisions, it  would  be  necessary  for  uis  under 
such  circumstances  to  ascertain  the  true 
measure  of  damages. 

The  misrepresentation  alleged  was  the  fail- 
ure of  the  defendant  Beltz,  when  the  plain- 


tiff inquired  about  the  IlabilltleK  of  the  com- 
pany, to  disclose  to  the  plaintiff  the  existence 
of  a  contract  Belts  had  with  the  company 
whereby  he,  Beltz,  was  to  receive  from  the 
company  the  sum  of  $36,000,  to  be  paid  out  of 
the  net  profits  of  the  company.  While  those 
interested  in  the  company,  and  those  who 
later  became  interested,  undoubtedly  had 
great  expectations  of  profits,  it  is  admitted 
by  all  that  for  more  than  a  year  there  were 
no  profits.  At  the  time  the  plaintiff  made  his 
first  Investment  the  authorized  stock  of  the 
company  amounted  to  $10,000.  The  amount 
of  stock  was  increased  ffom  time  to  time 
until  it  reached  the  sum  of  $25,000,  and  as  the 
Increases  of  stock  were  made,  the  plaintiff 
purchased  additional  stock  until  he  had  pur- 
chased $3,000  worth  of  stock  before  he  knew 
of  the  existence  of  the  outstanding  contract 
of  the  company  with  Beltz. 

The  existence  of  a  contract  for  the  payment 
of  $36,000  out  of  the  net  profits  of  a  company 
with  authorized  stock  to  the  amount  of  $10,- 
000,  or  even  $25,000,  is  surely  a  matter  for  a 
I)ersOn  contemplating  the  purchase  of  stock 
in  the  company,  to  consider  before  investing 
in  the  company  notwithstanding  the  profits 
were  of  a  purely  speculative  character.  It 
is  such  a  matter  as  would  probably  make  the 
stock  worth  less  than  if  the  contract  had  not 
existed.  We  therefore  are  of  the  opinion  that 
the  alleged  misrepresentation  wok  of  a  fact 
affecting  the  value  of  stock  of  the  company. 

The  plaintiff  has  not  introduced  evidence 
to  show  that  the  value  of  the  stock  was  at 
the  time  of  purchase  or  at  any  time  there- 
after affected  by  reason  of  the  alleged  mis- 
representation. However  he  does  claim  that 
he  would  not  have  invested  in  the  stock  of 
the  company  if  he  had  had  knowledge  of  the 
contract  Beltz  had  with  the  company.  While 
this  may  be  true,  yet  the  fact  remains  that 
the  alleged  misrepresentation  was  one  in  our 
opinion,  within  the  class  of  those  affecting 
the  value  of  the  stock,  therefore  he  is  bound 
by  the  decision  of  the  Pennsylvania  courts 
with  respect  to  the  measure  of  damages  iu 
su«di  cases. 

As  in  our  opinion  the  alleged  misrepresen- 
tation comes  within  the  class  of  cases  affect- 
ing the  value  of  the  propeity  purchased,  we 
will  now  consider  whether  the  plaintiff  suf- 
fered pecuniary  loss  or  damage  under  the 
rules  enforced  in  the  Pennsylvania  courts, 
with  respect  to  the  measure  of  damages  in 
snch  cases. 

In  the  case  of  Curtis  v.  Buzard,  supra,  the 
court  below  in  considering  the  measure  of 
damages  in  actions  of  deceit  for  fraud  iu 
the  sale  of  stock  used  the  following  language: 

"We  are  still  of  the  opinion  that  the  true 
rule  as  to  the  measure  of  damages  in  an  actioD 
of  deceit  for  fraud  in  the  sale  of  stock  is 
•  *  *  the  difference  between  what  the  plain- 
tiff was  induced  to  pay  for  the  stock  and  its 
actual  value  at  the  tiae  of  the  purchase." 


Digitized  by 


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908 


101  ATLAJNTIO  REPOETEB 


(Dd. 


nils  decision  was  affirmed  bj  tbe  Supreme 
Court  of  Pennsylvania. 

It  this  Is  the  rule  of  the  measure  of  dam- 
ages In  such  cases  In  the  courts  of  Pennsyl- 
vanla,  and  we  should  adopt  the  rule  here,  it 
would  be  decisive  in  this  case  and  it  would 
be  our  duty  to  Instruct  the  jury  to  And  a  ver- 
dict for  the  defendant. 

However,  without  passing  upon  the  ques- 
tion as  to  the  applicability  of  this  rule  in  the 
present  case,  we  will  pass  to  a  consideration 
of  whether  the  other  rule  of  the  measure  of 
damages  In  actions  of  deceit  for  fraudulent 
misrepresentations,  recognized  by  the  Penn- 
sylvania court,  in  connectl<Hi  with  the  facts 
of  this  case  and  determine  whether  under 
that  measure  of  damages  the  plaintiff  here 
Is  entitled  to  damages. 

The  measure  of  damages  in  such  cases  un- 
der this  rule  is  the  difference  between  the 
purchase  price  of  the  property  and  its  value 
if  it  had  been  as  represented. 

This  brings  us  to  the  question  of  what  un- 
der tbe  evidence  in  this  case  would  have  been 
the  value  of  the  stock  if  it  had  been  as  rep- 
resented. The  evidence  is:  That  the  plaintiff 
up  to  the  time  he  learned  of  the  existence  of 
the  contract  of  Beltz,  had  purchased  60  shares 
of  stock  at  its  par  value  of  $50  per  share. 
Tliat  some  time  thereafter  Beltz  brought 
suit  against  the  company  to  collect  the  $36,- 
000  due  him,  out  of  the  profits  of  the  com- 
pany under  the  terms  of  his  contract,  and 
secured  judgment.  This  judgment  was  paid 
by  the  company.  The  payment  of  this  sum 
of  money  to  Beltz  might  well  have  made  tbe 
stock  of  less  value  at  the  time,  and  if  the 
value  of  the  stock  had  been  decreased  by 
reason  of  Beltz  being  paid  the  $36,000,  then 
under  the  measure  of  damages  in  the  rule 
under  consideration,  the  plaintiff  would  have 
been  entitled  to  damages  to  the  extent  of  any 
depreciation  in  value  by  reason  thereof.  If 
there  has  been  a  fraudulent  misrepresenta- 
tion as  charged.  But  there  is  no  evidence 
before  us  to  show  by  reason  of  the  payment 
of  the  money  by  the  company  to  Beltz,  that 
the  stock  of  the  company  was  depreciated  in 
value,  at  that  or  any  other  time. 

Thus  whether  we  apply  to  the  facts  of  this 
case  the  rule  of  Supreme  Ck)urt  of  Pennsyl- 
vania with  respect  to  the  measure  of  dam- 
ages In  action  of  deceit  in  the  sale  of  stock 
or  the  other  rule  recognized  by  that  court 
with  respect  to  actions  of  deceit  for  fraud  In 
the  sale  of  other  property,  the  plaintiff  is  not 
entitled  to  damages  in  this  case  for  the  rea- 
son that  there  Is  no  evidence  to  show  that  he 
suffered  pecuniary  loss  by  reason  of  the  al- 
leged fraudulent  misrepresentation. 

For  the  reasons  assigned  we  are  of  the 
opinion  that  it  is  our  duty  to  instruct  the 
Jury  to  find  a  verdict  for  the  defendants,  and 
we  so  instruct  them. 

Verdict  for  defendants. 


Thereupon  tbe  plaintiff  made  a  motion 
for  a  new  trial  and  arrest  of  judgment 

RICB,  J.,  delivering  tlie  opinion  of  tbe 
court:  In  support  of  the  motion  for  a  new 
trial,  counsel  for  the  plaintiff  made  an  oral 
argument  and  brlete  in  support  of  their  con- 
tentions were  filed  respectively  by  oonnsd 
for  plaintiff  and  defendant. 

At  the  trial  the  court  gave  binding  instruct 
tlons  to  the  jury  to  find  in  favor  of  the  de- 
fendant, for  the  reason  that  It  had  not  been 
proved  that  the  plaintiff  had  suffered  pecu- 
niary loss  as  a  natural  and  probable  result 
of  the  defendant's  alleged  misrepresentation. 
And  the  court  held  at  the  time,  whether  the 
measure  of  damages  which  should  obtain  in 
this  case,  was  the  difference  between  what 
the  plaintiff  was  induced  to  pay  for  his  stock 
and  its  actual  value  at  tbe  time  of  purchase, 
or  was  the  difference  between  what  he  was 
Induced  to  pay  and  what  the  Bto<!k  woold 
have  been  worth  if  it  had  been  as  represent- 
ed, tbe  evidence  did  not  show  that  tbe  plain- 
tiff had  suffered  pecuniary  damages. 

[3]  After  a  further  consideration  of  tbe 
facts  of  the  case,  the  court  are  of  the  opSn- 
ion  that  we  probably  were  In  error  in  some 
of  the  reasons  given  by  us  In  bidding  that 
under  the  second  measure  of  damages  the 
plaintiff  had  not  suffered  pecuniary  loss. 
However,  we  are  now  of  the  opinion  that  the 
true  and  reasonable  measure  of  damages  In 
the  present  case  is  that  laid  down  by  the 
Supreme  C!ourt  of  Pennsylvania  In  the  two 
cases  of  High  v.  Berrett,  148  Pa.  203,  23  AtL 
1004,  and  Curtis  v.  Bnzard,  254  Pa.  61,  9S 
Atl.  777,  to  be  the  difference  between  the 
real  value  Of  tbe  stock  at  the  time  of  pur- 
chase and  what  be  was  induced  to  pay  by 
reason  of  the  false  misrepresentation.  This 
api)ear8  to  be  the  measure  of  damages  recog- 
nized by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Smith  v.  Belles,  132  U. 
S.  126,  10  Sup.  Ct  39,  33  U  Ed.  279,  and 
also  by  the  English  courts  in  the  case  of 
Peek  V.  Derry,  37  law  Reps.,  CSianoery  Divi- 
sion, 541. 

The  motion  for  a  new  trial  is  denied. 


(U  Del.  Ch.  <S6) 
SCULIiT  et  aL  v.  AUTOMOBIO!  riNANCB 
CO.  et  aL 


(Court  of  Chancery  of  Delaware. 
1917.) 


Sept  22, 


1.  CoRPOBA-noNS  ^=»99(2)— Sale  or  Stock— 
Insuiticibnt  Conbioebation. 
An  issue  of  common  stock,  which  alone  haJ 
voting  power,  by  a  corporation  to  an  associated 
corporation  composed  of  the  organizera  of  the 
first  company,  in  consideration  of  a  transfer 
of  a  valueless  business  idea,  not  salable  or  trans- 
ferable, violated  the  Constitution  and  statutes, 
such  transaction  being  an  actual  fraud,  and  uo 
pretended  exercise  of  business  judsment  by  di- 
rectors could  validate  it. 


^sFoT  other  casM  ■«•  mum  tople  and  KBT-NUMBBR  In  all  Ker-NumlMrad  Diswta  and  InduM 

Digitized  by  VjOOQ IC 


Del.) 


SC3ULLT  V.  AUTOMOBILE  FINANCE  CO. 


909 


2.  Corporations     <S=5>189(!^  —  Acnow     by 

StOCKHOLDEBS — CANCEIiATION    OF   STOCK. 

Preferred  stockholders,  acting  for  themselves 
and  other  stockholders,  and  not  for  creditors, 
may  brini  suit  to  cancel  shares  of  common  stock 
illegally  issued  in  consideration  of  a  valueless 
business  idea,  such  action  not  being  prohibited 
by  Constitution  or  statutes,  although  in  the  case 
of  a  proceeding  against  delinquent  stockholders 
by  or  for  creditors  in  case  of  insolvency,  an  ac- 
tion at  law  is  appropriate. 
8.  CoRPOKATioNS  ^=90(1)— Stock  Isbi^bd  as 
Fully  Paid — Constitdtion  and  STATtrras. 

Constitutional  and  statutory  prohibitions  re- 
apecting  issue  of  stock,  except  for  property,  do 
not  prohibit  the  issue  of  stock  as  partly  paid  for ; 
Buch  provisions  meaning  that  stock  cannot  be 
Issued  as  fully  paid,  so  as  to  relieve  the  holder 
from  liability,  until  the  transaction  has  been 
paid  for  in  money  or  other  property. 

4.  CoEPOBATiONs    «=>188(13)  —  Action    by 

Stockhoij>eb  —  Cancellation  or  Stock  — 

Relief. 

lo  a  preferred  stockholders'  snit  to  cancel 

■hares  of  common  stock  issued  for  a  valueless 

consideration,  terms  to  protect  and  enforce  all 

stockholders'  and  creditors'  rights  may  be  im- 

IK>8ed  in  granting  relief. 

8.  CoEPOEATioNB     <S=»189(5)  —  AonoN     by 
Stockholdeb  —  Cancellation  of  Stock- 
Time  OF  Acquisino  Stock. 
Preferred  stockholders  could  not  be  denied 
relief  in  suit  to  cancel  common  stock  issued  for 
a  valueless  consideration,  because  they  acquired 
their  stock  subsequent  to  the  unlawful  issue; 
they  being  then  ignorant  of  its  unlawful  char- 
acter, and  there  being  nothing  to  show  their  con- 
sent, nor  conduct  cutting  tihem  off  from  such 
remedy. 

6.  CoBPOBATioNS      «=»189<5)    —    Prefebred 
Stogkholdebs'  Riohts— Issue  of  Coumon 
Stock— IjEgality. 
Preferred  stockholders  have  a  right  to  ques- 
tion the  legality  of  the  issue  of  common  stock, 
particularly  where  the  control  of  the  company 
IS  in  the  holders  of  common  stock,  who  alone 
possess  voting  powers. 

Bill  by  Cbarles  Y.  Scully  and  others 
against  the  Aatomoblle  Finance  Oompany 
and  another.    Demurrers  to  bill  overruled. 

H.  H.  Ward,  of  Wilmington,  for  complain- 
ants. Martin  E.  Smith,  of  Wilmington,  and 
George  J.  Edwards,  of  Philadelphia,  Pa., 
for  defendants. 

THE  CHANOEIXOR.  A  demurrer  has 
been  filed  by  each  of  the  two  defendants  to 
the  bill.  By  the  bill  It  appears  that  a  group 
of  men  organized  two  corporations  under 
the  laws  of  Delaware,  corporation  A,  with 
an  authorized  capital  of  $400,000,  one-half 
preferred  stock  with  no  right  to  vote  and 
one-half  common  stock  with  voting  power, 
and  corporation  B,  with  $5,000  capital.  Cor- 
poration A  was  organized  chiefly  to  loan 
money  to  persons  desiring  to  purchase  auto- 
mobiles, title  to  the  cars  to  be  taken  as  se- 
curity for  advances.  The  purpose  was  that 
B  should  be  and  was  a  holding  company  and 
A  the  active  company.  By  an  arrangement 
between  the  two  companies  A  sold  and  trans- 
ferred to  B  all  Its  $200,000  of  common  stock 
for  a  theory  of  carrying  on  the  business  of 
A,  which  Idea  had  been  used  by  other  corpo- 


rations and  which  had  no  commercial  value, 
or  Indeed  any  appreciable  value.  Afterwards 
a  contract  was  made  by  A  with  two  of  the 
group  whereby  the  group  undertook  the 
sale  of  the  preferred  stock  of  A  and  were  to 
give  one  share  of  ccHiunon  stodt  as  bonus 
for  each  two  shares  of  preferred  stock  sold. 

The  complainants  each  purchased  shares  of 
preferred  stock  of  A  and  became  owners  of 
common  stock,  and  are  directors  of  company 
A  and  are  not  owners  of  stock  of  B.  At  the 
time  of  acquiring  the  stock  they  were  Igno- 
rant of  the  transactions  between  the  two  cor- 
porationa  After  finding  out  the  facts  In 
general,  the  complainants,  believing  that  the. 
arrangement  was  fraudulent  and  illegal,  ap- 
pealed to  the  officers  and  directors  of  A  to 
take  steps  to  undo  the  wrong,  and  obtaining 
no  help  filed  a  bill  against  both  corporations, 
asking,  among  other  things,  that  the  transfer 
of  the  shares  of  conunon  stock  of  A  to  B  be 
adjudged  illegal  and  that  they  be  returned  to 
the  company  for  cancellation. 

In  brief,  company  A  sold  and  transferred 
to  ccNnpany  B  all  of  Its  common  stock,  which 
alone  had  voting  power,  for  something  which 
obviously  had  no  value,  and  which  was  not 
salable  or  transferable,  vis.  a  business  Idea 
which  others  had  used  and  which  any  one 
could  use  freely,  and  stockholders  of  A  who 
acquired  their  shares  subsequent  to  the  trans- 
fer being  unsuccessful  In  moving  the  officers 
of  the  company  to  act,  have  taken  steps  to 
have  the  transfer  annulled  because  Illegal 
under  the  laws  of  Delaware,  and  done  for  a 
fraudulent  purpose. 

For  the  defendants  It  la  urged  that  there 
was  no  fraud,  and  that  the  stock  was  lawful- 
ly held ;  that  at  most  the  holders  of  the  stock 
were  liable  to  pay  therefor  under  the  pro- 
visions of  the  General  Incorporation  Act, 
and  so  there  was  an  adequate  remedy  at  law ; 
also  that  the  complainants  and  company  A 
were  estopped  to  deny  the  legality  of  the  or- 
ganization of  the  company,  or  to  seek  a  re- 
turn of  the  stock;  also  that  the  complain- 
ants had  no  standing  because  they  had  ac- 
quired stock  subsequent  to  the  transaction, 
and  In  fact  acquired  some  of  it  from  com- 
pany B. 

[1]  Beyond  question  there  was  no  consid- 
eration for  the  shares  Issued  to  the  Finance 
Company.  The  business  idea  was  not  salable 
or  transferable,  and  had  no  commercial  value, 
and  was  not  property  In  any  sense.  No  pre- 
tended exerr^Ise  of  business  Judgment  by  the 
directors  of  the  selling  company  could  give 
any  value  to  that  which  in  fact  was  not  prop- 
erty or  rights  in  and  to  property,  or  validate 
a  transaction  bared  on  there  being  value  In 
that  which  was  the  subject  of  the  dealings. 
The  transaction  violated  the  Constitution  and 
statutes  of  the  state.  In  some  of  the  other 
states  the  statutes  declare  void  shares  of 
stock  Issued  under  audi  dreumstances.  Such 
a  transaction  Is  actual  fraud  and  the  effect 


$=3For  other  cases  see  same  topic  and  KEY-NUUBER  In  all  Key-Numbared  Digests  and  indexes 


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910 


101  ATIiAimO  KEPORTESH 


(Pel. 


Is  the  same.  Ellis  t.  Penn  Beef  Co.,  8  Dei. 
Gh.  213,  80  Atl.  666 ;  Tooker  t.  National,  etc., 
Oa,  80  N.  J.  Bq.  SOS,  84  AU.  10  (1912). 

[2]  nie  defendants  say  tbat  the  only  rem- 
edy Is  to  enforce  payment  for  the  shares  as 
authorized  by  the  statute,  and  that  the  court 
cannot  annul  this  Issuance  thereof  or  compel 
a  return  thereof.  If  a  proceeding  against 
delinquent  stockholders  Is  for  or  by  creditors 
of  the  company  In  case  of  insolvency  an  ac- 
tion at  law  Is  appropriate.  But  when  It  Is 
not  for  creditors,  but  by  stockholders  acting 
for  thonselTes  and  other  stockholders  to  mi- 
force  a  right  of  the  corporation  whldi  the 
officers  of  the  company  will  not  enforce,  then 
it  may  turn  out  that  cancellation  of  the  ille- 
gally Issued  shares  Is  the  appropriate  remedy. 

The  case  of  Yetter  v.  Delaware,  etc.,  Co., 
206  Pa.  485,  56  AU.  67,  cited  by  the  defend- 
ants to  show  that  stockholders  of  a  corpora- 
tion cannot  maintain  a  bill  such  as  this  one, 
does  not  so  hold;  but  on  the  contrary  the 
court  expressly  declined  to  pass  on  that 
question.  The  right  was  denied  because  the 
Pennsylvania  statute  gave  to  the  Attorney 
General  the  remedy  to  enforce  a  provision  of 
the  Pennsylvania  Constitution  and  statute 
substantially  like  the  Constitution  and  stat- 
ute of  Delaware.  There  la  nothing  in  the 
Constitution  or  statutes  oi  Delaware,  or  in 
the  decisions  of  the  courts  of  Delaware,  or 
elsewhere,  which  si)eaklng  generally  excludes 
stockholders  from  obtaining  proper  relief 
for  the  corporation,  themselves  and  other 
stockholders  where  the  prohibition  of  the 
Constitution  and  statutes  have  been  violated 
by  the  issue  of  shares  of  stock  for  no  value. 
On  the  contrary  that  right  of  the  stockhold- 
ers was  found  in  Ellis  v.  Penn  Beef  Co.,  9 
Del.  Ch.  213,  80  AtL  666.  On  a  re-examina- 
tion of  the  general  question  I  am  convinced 
that  the  principle  there  stated  is  sound. 
Brahm  v.  M.  O.  Gehl  Co.  et  al.,  132  Wis. 
674, 112  N.  W.  1097 ;  Cuba,  eta,  Co.  T.  Klrby, 
149  BUch.  453,  112  N.  W.  1133. 

[3]  It  1b  further  urged  by  the  defendants 
that  inasmuch  as  the  prohibitions  of  the  Con- 
stitution and  statute  respecting  the  issue  of 
stock  except  for  property  are  In  the  past 
tense  no  stock  can  be  Issued  imtll  fully  paid 
for  and  that  the  provisions  of  the  statute 
respecting  the  liability  of  holders  of  shares 
not  paid  for  (sections  20,  21  and  22)  are  in 
conflict  therewith.  These  sections  simply 
provide  that  shareholders  are  liable  to  the 
full  extent  of  the  par  value  of  the  shares, 
and  that  either  the  corporation  or  its  cred- 
itors can  enforce  the  liability.  All  tbat  the 
Constitution  means  is  that  stock  cannot  be 
issued  as  fully  paid  so  as  to  relieve  the  bold- 
er thereof  from  such  liability  until  it  tias 
been  paid  for  in  money  or  other  form  of 
property.  There  is  no  prohibition  against  the 
issue  of  stock  as  partly  paid  for.  The  Con- 
stitution is  violated  If  shares  wholly  or  in 
part  tmpaid  for  are  issued  as  fully  paid  for. 

In  administering  the  affairs  of  the  Arling- 


ton Hotel  Company,  an  insolvent  corpora- 
tion, this  court  found  that  the  Constitution 
had  been  violated  and  for  the  benefit  of  credi- 
tors of  that  company  ordered  the  receivers 
of  the  corporation  to  enforce  that  liability. 
In  Ellis  V.  Penn  Beef  Co.,  9  DeL  Ch.  213,  80 
Atl.  666,  this  same  court  had  recognized  tliat 
same  liability  at  the  instance  of  a  stocldiold- 
er,  though  the  only  relief  there  granted  on 
the  preliminary  application  was  the  appoint- 
ment of  a  receiver  of  the  company  in  order 
to  conserve  the  property  and  business  pend- 
ing the  lltlgatloD. 

There  is  no  conflict  between  the  two  deci- 
sions of  this  court  In  each  the  prohibition 
of  the  Constitution  was  enforced  to  suit  the 
facts  of  each  case,  in  one  favoring  the  grant- 
ing to  stockholders  appropriate  relief  as  to 
stock  issued  without  any  value  given  there- 
for, and  in  the  other  reqiiiring  holders  of 
stock  who  had  not  paid  therefor  to  do  so  for 
the  benefit  of  creditors  of  the  company,  whi(& 
was  then  insolvent. 

In  the  case  of  Tooker  ▼.  National  Sugar 
Keflning  Co.,  80  N.  J.  Eq.  306,  84  AU.  10,  a 
decision  by  Vice  Chancellor  Stevens  in  1912, 
and  which  does  not  appear  to  have  been  re- 
versed, the  court  found  that  there  had  been 
a  conscious  overvaluation  by  the  directors 
of  pr<4)erty  taken  in  payment  for  shares  of 
stock,  which  was  actual  fraud  and  rendered 
the  stock  void  because  the  statute  as  to 
what  can  be  taken  as  payment  for  snares  was 
thereby  violated.  Where  creditors  were  con- 
cerned the  shares  were  stUl  liable  to  as- 
sessment. Being  bound  by  decisions  of  the 
Cotu-t  of  Appeals  of  New  Jersey,  the  Vice 
Chancellor  felt  he  could  not  cancel  the  stock 
because  the  statutes  of  New  Jersey  provided 
a  method  for  retiring  stock,  and  not  being 
sure  of  the  propriety  or  Justice  of  the  other 
relief  asked  for  and  discussed  in  the  opinion, 
the  court  said  that  it  would  in  the  decree  give 
the  holders  of  the  unlawfully  issued  stock  a 
right  to  vote  to  retire  the  stodc  in  accordance 
with  the  statute.  Howard  v.  National  Tele- 
phone Co.  et  al.  (C.  O.)  182  Fed.  215. 

[4]  In  the  case  at  bar  it  is  proper  to  apply 
the  principle  approved  of  in  Ellis  v.  Penn 
Beef  Co.,  for  the  bill  i»  properly  brought  by 
and  for  stockholders  to  effect  a  cancellation 
of  shares  issued  for  a  business  idea  which 
was  not  property  and  was  not  brought  bjr 
or  for  creditors  of  the  company  to  enforce 
payment  for  the  shares  in  order  to  protect 
creditors,  there  being  no  allegation  in  the  bill 
respecting  them.  If  it  should  later  appear 
that  they  need  protection  or  relief  the  decree 
could  so  provide.  Indeed,  terms  to  protect 
and  enforce  all  rights  may  be  imposed  in 
granting  relief  to  the  complainants  and  other 
stockholders  if  they  are  finally  found  enti- 
tled to  relief.  Even  If  the  validity  of  the  or- 
ganization of  the  company  is  affected  by  hold- 
ing the  issue  of  shares  of  common  stock  in- 
valid, some  way  will  be  found  to  meet  that 
situation.  The  exact  form  of  the  relief  to 
be  granted  is  not  here  material  on  the  anes- 


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tion  of  jtirtsdictlon  and  power  raised  by  the 
demurrer. 

[6]  Are  the  complainants  to  I>e  denied  re- 
lief because  they  acquired  their  stock  sub- 
sequent to  the  unlawful  Issue  of  stock,  being 
then  Ignorant  of  the  unlawful  character 
thereof? 

In  fails  T.  Penn  Beef  Ca,  0  Del.  Ch.  213, 
80  Atl.  666,  this  court  held  otherwise  under 
the  peculiar  facts  of  that  case.  The  court 
In  Pollltz  V.  Gould,  202  N.  Y.  11,  W  N.  E. 
1088,  38  L.  R.  A.  (N.  S.)  988,  Ann.  Gas. 
1912D,  1098,  after  stating  the  contrariety  of 
decisions  In  other  states,  and  considering  the 
question  as  a  new  one  in  New  Xork,  sus- 
tained that  right  to  a  stockholder  in  the  ab- 
sence of  special  circumstances,  such  as  the 
consent  of  the  prior  holder  of  the  sto<^  or 
something  connected  with  the  acquisition  of 
stock  by  the  complaining  stockholder  as 
would  render  It  inequitable  for  him  to  seek 
relief.  The  court  reasoned  that  the  right  to 
aTold  an  unlawful  Issue  was  in  the  company, 
and  when  the  officers  of  the  company  refused 
to  take  action,  the  right  was  In  the  stock- 
holders acting  for  the  company  and  this 
right  of  action  passed  with  the  cransfer  of 
stock. 

There  Is  nothing  to  show  that  the  com- 
plainants in  the  case  at  bar  have  as  holders 
of  shares  of  preferred  stock  consented,  or 
because  of  any  conduct  personal  to  them  cut 
themselves  ofF  from  the  remedy  of  stock- 
holders in  general 

[6]  Inasmuch  as  there  does  not  now  appear 
to  be  groimd  for  denying  to  these  particular 
complainants  the  right  of  objection  which  in 
general  such  stockholders  have,  they  should 
not  at  this  time  be  denied  a  right  to  main- 
tain their  bill.  Furthermore,  the  complain- 
ants as  holders  of  preferred  stpck  have  a 
right  to  q^iestion  the  legality  of  the  issue 
of  common  stock.  Howard  t.  National  Tele- 
phone Ck>.,  supra.  Particularly  is  this  true 
In  this  case  where,  the  control  of  the  com- 
pany Is  in  .the  holders  of  common  stock,  to 
which  alone  voting  powers  are  given. 

It  is  not  profitable  at  this  time  to  consid- 
er the  effect  of  sustaining  the  bill  on  the  le- 
gality of  the  organization  of  the  company 
and  Its  corporate  existence,  which  was  dis- 
cussed In  one  of  the  briefs  for  the  defend- 
ants. 

On  the  allegations  of  the  bill  the  com- 
plainants are  entitled  to  some  relief,  and  the 
demurrers  will,  therefore,  be  overruled- 

Let  an  order  be  entered  accordingly. 


(268  Pa.  Tt) 

MAIiET  T.  PESNNSXIiVANIA  B.  CO. 

(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  EXECCTOBS  AND   Administbatobs   «=>9  — 

Obphanb'  Court— JuBisDicTioN. 

Atft  June  24,   1885   (P.   L.   155),   providing 

for  tlie  granting   of   letters  of  administration 

by  tbe  orphana'  court  on  the  estates  of  per- 


sons presumed  to  be  dead,  does  not  Indicate  an 
intention  on  the  part  of  the  Legislature  to  con- 
fer on  such  court  exclusive  Jurisdiction  of  tbe 
determination  of  the  fact  of  death  by  reason 
of  absence,  for  that  question  frequently  arises 
in  collateral  proceedings  where  the  object  is 
not  to  distribute  the  estate  of  the  absentee. 

2.  Judgment  <3=>688— Pebsons  Conci.uded— • 
Absentee  Pbesumed  Dead. 

Where  a  railroad  employe  who  made  depos- 
its in  a  savings  fund  named  his  three  children 
as  l>eneficiaries,  or,  in  case  they  were  not  living, 
directed  that  tbe  fnnd  should  be  paid  to  bis 
legal  representatives,  and  two  of  the  three  chil- 
dren departed  and  were  not  heard  from  for 
over  seven  years,  a  judgment  directing  the  rail- 
road company  to  pay  the  fund  to  the  employe's 
executrix,  the  other  beneficiary  having  assign- 
ed her  interest  to  the  executrix,  protects  the 
company,  for  the  rights  of  the  absentees  could 
be  preserved  in  proceedings  for  the  distribution 
of  the  decedent's  estate. 

3.  Death    «=>2(1)  —  Pbesumptions  —  "Ab- 
sence." 

A  presnmption  of  death  is  raised  by  the  ab- 
sence of  a  person  from  his  domicile  unheard 
from  for  seven  years,  "absence"  in  such  con- 
nection meaning  that  the  person  is  not  at  the 
place  of  his  domicile,  and  that  his  actual  resi- 
dence is  unknown,  but  removal  is  not  sufficient, 
and  disappearance  from  his  domicile  and  from 
the  knowledge  of  those  with  whom  he  would  nat- 
urally communicate  is  necessary. 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Ab- 
sence.] 

4.  Dkath  «=5»2(1)— Pbesumption— Absknch 

Where  an  absentee's  possible  destination 
was  known  when  he  left,  reasonable  search 
should  be  made  at  the  place  where  he  was  last 
known  to  live  before  a  presumption  of  death 
can  arise  by  reason  of  seven  years'  absence 
unheard  from. 

5.  Death  ig=>4— Evidence— Findino. 

In  an  action  by  the  executrix  of  a  railroad 
employ^  to  recover  deposits  made  in  an  em- 
ployes' savings  fund  by  the  decedent,  where  it 
appeared  that  oqe  of  the  three  beneficiaries  had 
assigned  her  interest  to  the  executrix,  evidence 
held  to  warrant  a  finding  that  the  other  two 
beneficiaries  who  had  been  absent  unheard  from 
for  over  seven  years  had  died. 

Appeal  from  Court  of  Common  Pleas, 
Bradford  County. 

Action  by  Margaret  Malay,  executrix  of 
the  last  will  and  testament  of  Martin  Malay, 
deceased,  against  the  Pennsylvania  Railroad 
Company.  From  a  Judgment  for  plaintiff, 
defendant  appeals.    Affirmed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TBEiiAT,  POTTER,  FEAZEE,  and  WAI.- 
UNO,  JJ. 

Benjamin  Enykendall,  of  Towauda,  and 
Guy  H.  Dayles,  of  Harrlsburg,  for  appellant 
T.  S.  Hlckok  and  James  W.  Burke,  both  of 
Canton,  for  appellee. 

FRAZER,  J.    Martin  Malay  died,  in  1913, 

leaving  a  will  In  which,  after  giving  certain 
specific  legacies,  he  left  his  residuary  estate 
to  his  wife,  plaintiff  In  this  {Hroceedlug,  and 
appointed  her  executrix.  Deceased  bad  been 
an  employ^  of  the  Pennsylvania  Railroad 
Company,  the  defendant,  and  had,  since  1893, 
made  deposits  in  tbe  employte'  saving  fund 
of  the  company,  and,  at  the'  time  of  his 


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101  ATIiANTIC  REPORTER 


(Pa. 


deatb,  tbere  was  standing  to  his  credit  In 
that  fund  the  sum  of  $1,774.25,  the  subject- 
matter  of  this  litigation.  In  his  application 
for  membership  deceased  provided  that,  in 
event  of  his  death,  the  amount  due  blm 
should  be  paid  to  bis  three  children,  Jerry, 
Daniel,  and  Mary,  or,  In  case  they  were  not 
living,  to  his  legal  representatives.  The  reg- 
ulations governing  payment  of  the  saving 
fund  provided  that: 

"Upon  the  presentation  to  the  superintendent 
of  the  fund  of  satisfactory  proof  of  the  death 
of  a  depositor,  the  money  belongring  to  him  shall 
be  paid  only  to  the  beneficiary  designated,  in 
accordance  with  these  regulations,  to  receive 
the  same;  or,  if  the  beneficiary  so  designated 
shall  not  be  then  living,  said  fund  shall  be  paid 
either  to  the  heirs  or  legal  representatives  of 
the  deceased  depositor,  as  the  board,  or  super- 
intendent, may  determine." 

Daniel  and  Jerry  Malay  left  borne  shortly 
after  the  father  became  a  depositor  to  this 
fund,  and  have  not  since  been  heard  from. 
After  the  death  of  Martin  Maley,  Mary  as- 
signed her  interest  In  the  fund  to  her  moth- 
er, the  executrix,  who  tben  brought  this  ac- 
tion to  recover  the  entire  fund  as  the  person- 
al representative  of  decedent,  basing  her 
claim  to  the  shares  of  Jerry  and  Daniel  on 
the  presumption  of  their  death,  arising  from 
absence  unheard  of  for  a  period  of  21  and 
18  years,  respectively,  at  the  time  of  bring- 
ing this  action.  The  court  below  left  to  the 
Jury  the  question  whether  the  absent  sons 
were  dead,  and  a  verdict  for  plaintiff  was 
rendered  on  which  the  court,  after  discharg- 
ing rules  for  a  new  trial  and  Judgment  non 
obstante  veredicto,  entered  Judgment,  and 
defendant  appealed. 

[1]  The  second  assignment  of  error  ques- 
tions the  Jurisdiction  of  the  court  of  common 
pleas  to  adjudicate  the  fact  of  the  death  of 
the  two  sons.  Defendant  contends  that  ex- 
clusive Jurisdiction  of  this  question  is  vested 
In  the  orphans'  court,  and  that  an  applica- 
tion should  first  have  been  made  to  that 
court  by  plaintiff  for  letters  of  administra- 
tion on  the  estates  of  the  absentees,  in  ac- 
cordance with  the  provision  of  the  act  of 
June  24,  1885  (P.  L.  155).  Previous  to  the 
passage  of  this  act  the  practice  of  the  reg- 
ister of  wills  had  been  to  grant  letters  of  ad- 
ministration on  the  estates  of  persons  pre- 
sumed to  be  dead  because  of  seven  years'  ab- 
sence, on  the  production  of  sufficient  evi- 
dence before  him.  In  the  case  of  Devlin  v. 
Commonwealth,  to  Use,  101  Pa.  273,  47  Am. 
Rep.  710,  this  court  held  the  grant  of  let- 
ters of  administration  by  the  register  in  such 
case  to  tie  absolutely  void  if  afterwards  the 
absent  person  was  found  to  be  alive.  The 
act  of  June  24,  1885  (P.  L.  155),  followed,  ap- 
parently for  the  purpose  of  establishing  a 
uniform  practice  conclusive  upon  all  parties. 
The  act  begins  by  providing  that: 

"Whenever,  hereafter,  letters  of  administra- 
tion, on  the  estate  of  any  person  supposed  to 
be  dead  on  account  of  absence  for  seven  or  more 
years  from  the  place  of  his  last  domicile  within 
this  commonwealth,  shall  be  applied  for,  it  shall 


be  the  daty  of  the  register  of  wills,  to  whom  the 
application  shall  be  made,  to  certifv  the  same 
forthwith  to  the  orphans'  court  of  the  county." 

Other  sections  designated  the  procedure  to 
be  taken  by  the  orphans'  court,  the  publica- 
tion of  notice,  the  evidence  which  may  be 
offered  at  the  bearing,  the  giving  of  a  re- 
funding bond  for  the  recovery  of  property 
distributed,  with  power  in  the  court  to  re- 
voke the  letters  upon  it  being  made  to  ap- 
pear that  the  supposed  decedent  is  In  fact 
alive,  also  providing  that  all  acts  done  by 
the  administrator  to  the  time  of  revocation 
of  the  letters  shall  remain  as  valid  as  if 
the  letters  were  unrevoked,  subject  to  the 
right  of  recovery  of  the  property  from  the 
distributees.  This  act  provides  a  complete 
system  for  distribution  of  estates  of  sup- 
posed decedents,  with  a  view  to  protect  and 
safeguard  the  rights  of  ail  parties  concerned. 
We  find  nothing  in  tbe  act,  however,  indicat- 
ing an  intention  on  the  part  of  the  liCgisla- 
ture  to  confer  upon  the  orphans'  court  ex- 
clusive Jurisdiction  of  the  determination  of 
the  fact  of  death  by  reason  of  absence.  This 
question  may,  and  frequently  does,  arise  in 
collateral  proceedings  where  the  object  is  not 
to  distribute  tbe  estate  of  the  absentee,  and 
where  the  court  has  complete  Jurisdiction  of 
the  subject-matter,  as  In  the  present  case. 
In  such  cases  no  necessity  exists  for  taking 
out  letters  of  administration  on  the  estates 
of  tbe  al>sentees,  and  no  adequate  reason  ap- 
pears for  holding  that  a  court  of  competent 
Jurisdiction  should  delay  matters  pending  be- 
fore it  for  the  purpose  of  awaiting  an  appli- 
cation for  appointment  of  an  administrator 
by  the  orphans'  court,  merely  to  determine 
whether  or  not  certain  facts  warrant  a  pre- 
sumption of  death  of  the  absentee,  who  may 
in  fact  have  no  estate  to  administer,  at  least 
so  far  as  the  pending  proceeding  in  the  com- 
mon pleas  is  concerned.  True  there  is  noth- 
ing in  the  act  of  1885  to  indicate  a  prerequi- 
site to  taking  Jurisdiction  by  the  orphans' 
court  Is  ownership  of  property  by  the  sup- 
posed decedent  within  the  state  of  Pennsyl- 
vania, or  elsewhere.  The  conditions,  so  far 
as  the  provisions  of  the  act  are  concerned, 
are  that  the  application  for  letters  shall  be 
made  by  the  proper  person,  and  evidence  pro- 
duced sufficient  to  satisfy  the  court  tliat  the 
presumption  of  death  has  arisen.  The  act, 
however,  contains  no  Indication  of  an  at- 
tempt upon  the  part  of  the  Liegislatnre  to 
confer  on  the  orphans'  court  exclusive  Jaris- 
dlctlon  and  to  take  from  the  common  pleaa 
Jurisdiction  to  determine  all  questions  of 
fact  arising  In  a  proceeding  pending  before 
that  court,  and  over  which  its  Jurisdiction  is 
undoubted,  and  Jurisdiction  of  the  subject- 
matter  carries  with  it  Jurisdiction  to  decide 
evei7  incidental  question  necessarily  involv- 
ed. Wllhelm's  Appeal,  79  Pa.  120,  141.  The 
court  is  not  asked  to  administer  the  estate  of 
a  person  presumed  to  be  dead,  nor  would  this 
be  the  direct  or  Indirect  effect  of  Judgment 


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rendered  in  the  proceeding.  Under  a  Terdlct 
for  defendant  the  fund  In  question  must  re- 
main In  its  hands  until  claimed  by  the  absent 
owners,  or  until  an  administration  of  their 
estate  Is  duly  made  by  proceedings  brought 
under  the  act  of  1885. 

The  courts  hare  frequently,  since  the  pas- 
sage of  the  act  of  1885,  assumed  Jurisdiction 
to  pass  on  the  question  of  presumption  of 
death  without  the  formality  of  applying  for 
letters  of  administration  pursuant  to  that 
act  For  instance,  in  Re  Petition  of  Mutual 
Benefit  Co.  of  Penna.  for  Dissolution,  Schon- 
eman's  Appeal,  174  Pa.  1,  34  Atl.  283,  52  Am. 
St.  Rep.  814,  the  common  pleas  decided  the 
question-  in  a  proceeding  to  distribute  the 
estate  of  a  mutual  benefit  association.  In 
Francis  t.  Francis  &  Beale,  180  Pa.  644,  37 
Atl.  120,  67  Am.  St.  Rep.  668,  proof  of  death 
of  an  absentee  was  received  in  the  common 
pleas  in  an  issue  devisaTlt  vel  non  on  the 
will  of  another  person,  the  court  not  deeming 
It  necessary  to  await  a  determination  of  the 
death  of  the  absentee  under  the  provisions  of 
the  act  of  1885.  In  Baker  v.  Fidelity  TiOe  & 
Trust  Ck>.,  55  Pa.  Super.  Ct.  15,  the  question 
was  raised  in  a  bill  in  equity  for  partition 
and  an  account  of  rents.  In  that  case  the 
court  said  (page  21): 

rrhe  act  of  June  24,  1885,  relates  to  the 
granting  of  letters  of  administration  on  the 
estate  of  persons  presumed  to  be  dead  by  rea- 
son of  long  absence  from  their  former  domicile. 
It  provides  a  mode  of  administration  of  such 
property  as  would  come  into  the  hands  of  an 
administrator,  but  the  proceeding  now  under 
consideration  is  not  for  the  collection  or  con- 
servation or  administration  of  Baker's  estate; 
it  is  a  i^roceeding  to  partition  his  estate,  and 
that  which  the  appellee  is  demanding  Is  her 
property,  and  never  was  a  part  of  the  estate 
of  Baker.  It  came  Into  being  after  he  died. 
When  the  presumpticoi  of  death  arose,  the  rights 
of  hie  widow  took  effect,  and  as  no  appeal  is 
taken  from  the  decree  in  partition  by  the  widow 
or  the  heir,  it  does  not  appear  that  the  inter- 
ests of  the  appellant  are  in  any  wise  prejudiced. 
The  contention  that  It  may  hereafter  be  dis- 
covered that  Frank  Baker  is  alive  is  one  which 
might  be  made  with  propriety  after  an  account- 
ing when  the  money  is  to  be  paid  over,  but  until 
that  time  the  accountant  incurs  no  risk  and  is 
not  subjected  to  any  prejudice.  The  action  is 
not  against  the  estate  of  the  missing  husband, 
but  against  the  heir  at  law  for  Uie  settlement  of 
a  property  right,  and  is  in  its  general  features 
a  proceeding  in  rem  as  to  which  the  Jurisdic- 
tion of  the  court  is  unquestioned." 

A  verdict  and  judgment  for  plaintiff  does 
not  amount  to  a  distribution  of  the  estate 
ot  the  absentees,  for  the  reason  that,  when 
the  fact  of  their  death,  before  that  of  de- 
ceased testator,  Is  established,  the  fund  does 
iM^  pass  to  plaintiff  through  them,  but 
passes  directly  to  the  personal  repres^ata- 
tive  of  deceased  under  the  agreement  for 
disposition  of  the  benefit  fund,  and  also  as 
part  of  the  estate  of  the  deceased  father. 
The  presumption  of  death  from  absence  is 
as  effective  as  direct  proof  of  the  fact  of 
death,  the  rule  being  tliat  property  such 
person  would  have  inherited  does  not  vest 
in  blm,  but  passes  directly  to  others  entitled 
101A,r-68 


thereto.  Esterly's  Appeal,  109  Pa.  222.  In 
that  case  It  was  held,  where  a  son  was,  by 
reason  of  absence,  presumed  to  be  dead,  the 
share  of  his  father's  estate  he  would  have 
Inherited  went  directly  to  the  grandchUdren, 
and  not  through  the  son,  and,  therefore, 
creditors  of  the  latter  were  without  right  to 
participate  In  a  distribution  of  the  estate. 
In  the  opinion  the  court  says  (page  231) : 

"If  it  now  appeared,  by  positive  and  direct 
proof,  that  Joseph  H.  Gery  bad,  in  fact,  died 
on  the  day  he  disappeared,  it  certainly  cannot 
be  doubted  that  we  would  distribute  this  fund, 
so  held  in  trust  and  awaiting  adjudication,  to 
those  upon  whom  the  estate  devolved ;  and  as 
the  presumption  of  death  after  the  lapse  of  seven 
years  is  as  eEfective  as  direct  proof  of  the  fact, 
we  cannot  see  how  any  doubt  can  exist  as  to  the 
parties  entitled  here." 

Under  this  authority,  the  shares  of  the 
sons  passed  directly  to  the  executrix  who 
represents  the  estate  of  decedent,  and 
through  her  to  those  entitled.  CJonsequently 
this  action  Is  In  no  sense  one  against  the  es- 
tates of  the  missing  sons,  requiring  the 
raising  of  administration  thereon,  and  the 
court  below  properly  sustained  Its  Jurisdic- 
tion to  .determine  the  questions  raised. 

[2]  Defendant  cannot  be  Injured  by  a 
Judgment  In  favor  of  the  plaintiff  for  the 
amount  in  its  hands.  It  admits  the  amount 
Is  due,  and  merely  desires  to  be  protected 
in  making  payment  to  the  proper  person. 
This  protection  Is  fully  given  by  the  judg- 
ment of  the  court  In  the  present  proceeding. 
In  Devlin  v.  Commonwealth,  to  Use,  101  Pa. 
273,  this  court  held  a  voluntary  payment  to 
the  administrator,  appointed  on  the  estate 
of  a  person  on  the  strength  of  the  presump- 
tion of  death  before  the  act  of  1885,  was  not 
a  defense  to  a  subsequent  action  by  the 
supposed  decedent,  but  said  (page  278  of 
101  Pa.,  47  Am.  Rep.  710): 

"Had  John  F.  Devlin  been  compelled,  by  a 
court  of  competent  jurisdiction,  to  have  paid 
to  the  administrator  the  money  in  controversy, 
his  case  wonld  have  been  very  different" 

In  Miller  et  el.  v.  Beates  et  al,  3  Serg. 
&  R.  490,  8  Am.  Dec.  658,  it  was  said  In 
answer  to  a  similar  contention  (page  494) : 

"As  to  the  injurv  which  might  arise  to  John 
O.  Schlosser,  by  uiis  presumption,  in  case  he 
should  be  alive,  I  think  it  ought  not  be  re- 
garded. He  would  have  his  action  against  those 
to  whom  the  money  will  be  paid ;  and  although 
he  might  lose  by  their  insolvency,  yet  that  wotud 
not  be  a  greater  evil  than  would  arise  from  the 
establishment  of  a  principle  that  the  life  of  a 
man  ought  to  be  presumed,  under  circumstances 
which  usually  attend  deoth,  merely  because  pos- 
itive proof  of  death  could  not  be  obtained.  I 
am  bound  to  mention,  in  justice  to  the  defend- 
ants, in  this  cause,  that  they  have  no  wish  to 
reap  any  benefit  from  the  detention  of  the  mon- 
ey In  question.  Their  object  is  safety;  they 
are  willing  to  pay  to  the  persons  who  are  au- 
thorized by  law  to  receive;  and,  considering 
the  circumstances  of  the  case,  I  think  they  were 
prudent  in  withholding  the  money,  till  the  plain- 
tiffs established  their  right  by  legal  adjudica- 
tion." 

The  question  as  to  the  amount  and  suffi- 
ciency of  the  security  that  should  be  re- 
quired to  be  entered  by  the  distributees  en- 


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101  ATIANTIO  REPORTER 


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titled  to  the  fund  Is  not  before  us,  and  may 
properly  be  considered  when  tbe  account  of 
the  administratrix  comes  before  the  court 
for  distribution. 

[3-6]  Tbe  remaining  question  Is  whether 
the  eTldence  Is  sufficient  to  warrant  the 
jury  in  finding  the  fact  of  death  of  tbe  two 
sons.  Jerry  Maley  left  home  in  1894  when 
under  20  years  of  age.  Daniel  Maley  left 
In  1S97,  when  about  the  same  age.  They 
lived  at  home  with  their  father  In  the  small 
village  of  Grover,  containing  about  150  In- 
habitants. The  fact  of  their  leaving  was, 
without  doubt,  generally  known  in  the  com- 
munity, especially  as  their  father  had  been 
a  resident  there  for  many  years,  and  the 
family  was  well  known.  After  the  depar- 
ture of  the  sons  the  father  continued  to  re- 
side in  Grover  until  bis  death  In  1913.  Dur- 
ing the  period  of  20  years  whidi  elapsed  since 
the  departure  of  the  eldest  son  no  word  was 
received  from  either  of  them,  or  reason 
shown  for  their  going  away,  or  their  possible 
destination,  except  the  testimony  of  a  wit- 
ness, who  employed  Jerry,  to  the  effect  that 
tbe  latter  indicated  an  Inteutlon  of  "going 
West"  The  father  at  one  time  stated  to  a 
witness  that  If  Jerry  were  alive  he  thought 
be  was  on  the  sea.  Defendant  contends 
that  something  more  than  the  mere  fact  of 
the  boys  not  returning  home  or  writing  their 
father  was  necessary  to  give  rise  to  the  pre- 
sumption of  death,  and  that  an  effort  to  lo- 
cate the  absentees  must  appear.  Just  what 
form  such  inquiry  should  take,  in  view  of 
the  facts  of  this  case,  we  are  unable  to  com- 
prehend. There  was  nothing  to  indicate  to 
the  father  the  possible  destination  of  his 
SODS ;  had  such  fact  been  known  to  him 
reasonable  search  should  be  required  to  be 
made  at  the  place  where  the  boys  were  last 
known  to  live.  As  matters  stood,  however, 
the  last-known  residence  was  the  home  of 
their  father,  and  the  proof  of  their  absence 
unheard  of  from  that  place  for  a  long  peri- 
od of  years  was  without  contradiction.  In 
fact  their  presence,  or  even  news  at  them, 
in  a  small  community  would  soon  become  a 
matter  of  common  knowledge;  consequently 
the  making  of  specific  search  or  inquiry 
would  be  a  needless  proceeding.  The  pre- 
sumption of  death  from  several  years'  ab- 
sence is  founded  on  the  Bnglish  Statute  of 
19  Car.  II,  c.  6.  (3  Eng.  Stat.  813),  which 
provides: 

"That  any  person  or  persons,  for  whose  lives 
estates  are  granted,  absent  tliemselves  for  sev- 
en years  together,  and  do  evident  proof  be  made 
of  their  being  living,  in  any  action  commenced 
by  the  lessors  or  reversiooets  for  recovery  of  the 
premises  shall  be  counted  as  dead." 

In  Miller  et  al.  v.  Beates  et  al.,  supra,  the 
supposed  decedent  went  abroad,  and  when 
last  heard  from  was  in  France,  and  con- 
templated taking  passage  to  America.  Un- 
successful inquiry  was  made  in  France  con- 
cerning him.  The  court  said  (page  493  of 
B  Serg.  &  R^  8  Am.  Deo.  658): 


"Although  a  person  who  has  gone  from  Phil- 
adelphia to  France  may  be  presuned  to  be  liv- 
ing, although  he  be  not  heard  of  for  several 
years,  because  such  things  commonly  happen ; 
yet  when  many  years  have  elapsed  without  hear- 
ing from  him,  and  no  circumstance  is  shown  by 
which  this  may  be  reasonably  accounted  for. 
it  is  so  contrary  to  general  experience  that 
he  should  be  living  that  the  jury  may,  and  ought 
to,  presume  his  death.  Bor.  in  such  cases,  what 
is  to  be  done?  Tbe  jury  must  find  the  fact  one 
way_  or  the  other.  They  are  not  to  Rive  a 
verdict  by  caprice,  but  upon  principle.  Tlicre- 
fore,  when  a  man's  being  alive  is  inconsistent 
with  the  other  fact  proved  in  tbe  cause,  accord- 
ing to  eeneral  experience,  it  ought  to  be  pre- 
sumed that  he  is  not  alive.  I  find  it  laid  down 
in  2  Peake's  Law  of  Evid.  356,  that  where  one 
has  not  been  heard  of  for  many  years,  this  is 
prima  facie  evidence  to  presume  his  death  with- 
out issue,  until  the  contrary  be  proved.  This 
appears  to  me  to  be  quite  reasonable,  Itlanv 
years*  is  an  indefinite  expression,  I  am  not 
for  fixing,  at  present,  any  precise  period,  after 
which  a  presumption  of  death  arises.  But  I 
think  mysi'If  safe  in  saying  that,  in  the  present 
instance,  considering  that  14  years  and  9  months 
had  elapsed  between  John  G.  Solilosser's  be- 
ine  last  heard  of  and  the  commencement  of  this 
action;  that  when  last  heard  of,  he  was  at  a 
place  between  which  and  the  city  of  Phila- 
delphia there  was  a  free  communication,  and 
it  was  then  his  intent  to  return  •  *  ♦  to 
Philadelphia;  his  being  now  in  life,  would  be 
contrary  to  the  usual  course  of  things ;  that 
the  jury  might,  and  ought  to,  presume  bis  death, 
and  if  tbe  case  were  to  come  to  another  trial, 
the  court  would  so  direct  them." 

It  was  also  further  said  (page  485  of  3 
Serg.  &  R.,  8  Am.  St  Rep.  658): 

"If  he  has  not  been  heard  of  for  many  years, 
this  in  every  case  is  prima  facie  evidence,  suf- 
ficient to  presume  his  death  without  issue,  un- 
til tbe  contrary  is  proved." 

The  question  as  to  the  evidence  required 
to  raise  the  presumption  of  death  was  again 
discussed  in  Innls  et  al.  v.  Campbell,  1 
Rawle,  373,  375,  as  follows: 

"A  person,  proved  to  have  been  alive  at  a  par- 
ticular time  18  presumed  to  be  so  still ;  and 
the  onus  of  proof  is  on  him  who  alleges  the  con- 
trary. But  In  addition  to  lapse  of  time,  proof 
that  he  has  not  been  heard  of  for  7  years  is 
sufficient  to  rebut  the  presumption  of  life ;  and, 
was  it  shown  that  Mrs.  Wallace  had  not  been 
heard  of  for  that  period,  there  would  clearly 
be  sufficient  to  warrant  a  presumption  of  her 
death.  2  Stark,  Ev.  458.  But  the  question 
is  whether  the  lapse  of  24  years,  without  proof 
of  inquiry,  or  other  circumstance,  be  not  of  it- 
self, sufficient  to  warrant  such  a  presumption; 
and,  although  I  know  of  no  authority  in  point, 
I  am  of  opinion  that  it  is." 

In  tbe  case  of  Francis  ▼.  Francis  ft  Beale, 
180  Pa.  644,  046,  37  Aa  130.  5T  Am.  St. 
Rep.'  668,  the  supposed  deceased  bad  gene 
with  others  to  settle  la  Patagonia,  and  was 
a  member  of  that  colony  when  last  heard 
from.  The  contention  was  that  a  presump- 
tion of  his  death  existed,  as  no  word  had 
been  received  from  him  toi  a  period  of  ov«- 
7  years.  Tfa«  trial  judge  affirmed  a  point 
that  "the  presumption  of  death  arising  firom 
the  absence  of  tbe  person  tor  1  years  un- 
heard from  stands  as  competent  and  satis- 
factory proof  untii  it  is  suocesafnUy  rebut- 
ted by  competent  evideuce  to  the  coutraiy," 
with  'the  qualification  that  if  a  party  left 
hla  home  "without  sayiikg  where  he  was  go- 


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CHEW  V.  CaTT  OP  PHILADELPHIA 


916 


ing,  or  tf  he  bad  left  his  home  on  a  business 
trip  or  a  pleasure  trip,  and  nothing  had  been 
heard  of  him  for  a  period  of  7  years,  then 
the  presumption  would  arise  that  he  was 
dead.  But  if  he  went  away  for  the  pur- 
pose of  establishing  a  permanent  home  some- 
where else,  and  he  was  known  to  be  alive 
there,  then  the  presumption  would  not  arise 
until  he  would  be  absent  from  that  home 
and  unheard  of  there."  The  Jury  found  the 
absentee  was  alive,  and  this  court  affirmed 
the  judgment,  saying  the  Instmction  to  the 
Jury  was  correct,  and  that: 

"A  presumption  of  death  is  raised  by  the  ab- 
sence of  a  person  from  his  domicile  unheard  of 
for  7  years.  Absence  in  this  connection  means 
that  a  person  is  not  at  the  place  of  bis  domi- 
cile and  that  his  actual  residence  is  unknown. 
It  is  for  this  reason  that  bis  existence  is  doubt- 
ful, and  that  after  7  years  of  such  absence  bis 
death  is  presumed.  But  removal  alone  is  not 
enough.  The  further  fact  that  he  has  disap- 
peared from  his  domicile  and  from  the  knowl- 
edge of  those  with  whom  he  would  naturally 
communicate,  so  that  his  whereabouts  have 
been  unknown  for  7  years  or  upwards,  is  nec- 
essary in  order  to  raise  the  presumption." 

Had  the  sons  In  this  case  announced 
their  destination  upon  departing,  or  had 
knowledge  of  their  destination  been  subse- 
quently acquired,  from  which  it  appeared  the 
two  boys  left  home  with  the  Intention  of 
establlsbing  their  permanent  residence  at  an- 
other place,  absence  from  such  place  unheard 
of  for  a  period  of  7  years  would  become 
necessary  to  raise  the  presumption  of  death. 
Bat  under  the  drcumstancea  of  their  depar- 
ture, and  in  view  of  their  failure  to  com- 
municate vfith  their  father,  with  whom  they 
would  naturally  be  expected  to  Impart  In- 
formation, to  prove  their  destination  was  un- 
known, and  that  they  had  not  been  heard 
from  for  the  period  of  time  which  had 
elapsed,  was  sufficient  to  raise  a  presump- 
tion of  death,  and  must  stand  as  proof  until 
rebutted  by  evidence  to  the  contrary. 

The  Judgment  Is  affirmed. 


(267  Pa.  589) 

CHBW  et  al.  v.  CITY  OF  PHILADELPHIA 
et  al. 

(Supreme  Court  of  Pennsylvania.    April  SO, 
1917.) 

1.  Mttnicipai,  Corporations  ®=9lOOO(l)  — 
Public  Imfbovehents  —  Injunction  — 
Laches. 

A  city  will  not  be  enjoined  from  carrying 
out  a  contract  for  extensive  municipal  improve- 
ments on  the  ground  that  the  contract  Increased 
the  municipality's  indebtedness  -  beyond  its  bor- 
rowing capacity,  where  the  bill  was  not  filed  un- 
til part  of  the  money  bad  been  actually  raised, 
and  a  loan  of  the  balance  bad  been  arranged, 
and  where  a  large  part  of  it  had  been  actually 
expended. 

2.  MXJNICIPAI,     COBPOBATIONS     «=5>1000(1)     — 

Taxpatebs'  BiLir— Laches. 
The  rule  of  laches  applies  to  either  a  tax- 
payers' or  to  property  owners'  bill  to  enjoin  a 
municipaUty  from  carrying  out  a  contract  in- 
volving a  public  improvement  about  to  be  con- 
structeid  without  legal  authority. 


3.  Injunction  9=937— Public  Iupbovkmehts 
— juwsdiction. 

The  chancery  powers  of  the  courts  of  the 
county  of  Philadelphia  to  enjoin  the  erection  or 
use  of  public  works  is  materially  modified  by 
Act  April  8,  1S46  (P.  L.  272),  prohibiting  the 
exercise  of  such  power  until  the  questions  of 
title  and  damages  are  finally  decided  by  a  com- 
mon-law court 

4.  Railboads  (S=>99(7)— Abolition  op  Gbadk 
Crossings— NECEssrrr  and  Extent  of  Tak- 
ing. 

Where  a  city  and  several  railroads,  acting 
under  Act  March  17,  1869  (P.  L.  12),  and  Act 
June  9,  1874  (P.  I*  282),  entered  into  a  con- 
tract for  the  appropriation  of  land  for  yards  to 
relocate  the  railroads,  to  elevate  their  tracks  so 
as  to  abolish  grade  crossings  and  to  unite  the 
railroad  tracks  and  provide  sites  for  municipal 
piers  and  docks  and  other  extensive  improve- 
ments to  meet  present  and  future  needs,  a  court 
will  not  interfere  with  the  judgment  of  the  con- 
tracting parties  as  to  the  necessity  and  extent 
of  taking  property,  without  strong  and  conclu- 
sive evidence  that  the  taking  was  arbitrary,  and 
not  for  legitimate  railroad  purposes. 

Appeal  from  Court  of  Conmion  Pleas,  Phil- 
adelphia County. 

Bill  for  liidunctlon  by  Mary  J.  B.  Chew  and 
others  against  the  City  of  Philadelphia  and 
others.  From  a  decree  dismissing  the  bill, 
plaintiffs  appeal.    Affirmed. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
AKT,  MOSCUZISKEB,  FKAZER,  and  WAI,- 
LING,  JJ. 

Francis  B.  Bracken  and  Samuel  B.  Scott, 
both  of  Philadelphia,  for  appellants.  John 
P.  Connelly,  City  Sol.,  Joseph  G.  Magee  and 
Ernest  Loiwengrund,  Aast.  City  Sols.,  and 
Gill  &  Ldnn,  Graham  &  Gllfillan,  B'rancls  I. 
Gowen,  and  John  O.  Johnson,  all  of  Phila- 
delphia, for  appellees. 

MOSOHZISKER,  J.  The  bill  In  this  case 
was  flled  by  seven  individuals  and  one  cor- 
poration, as  property  owners  and  taxpayers 
for  themselves  and  sudi  others  as  might  be- 
come parties  thereto.  Before  hearing  the 
Greenwldi  Terminal  Company,  a  corporation, 
having  acquired  the  real  estate  of  all  the  orig- 
inal complainants,  asked  and  received  per- 
mission to  intervene  as  an  additional  plain- 
tiff, "for  the  protection  of  Its  interests  in  tbe 
premises,"  being  certain  tracts  of  land  in 
the  aotttbem  section  of  the  dty  of  Philadel- 
phia, condemned  for  frelghtyard  purposes, 
as  hereinafter  more  particularly  set  forth. 
The  other  parties  remained  upon  the  record, 
however,  as  taxpayers;  the  last-named  cor- 
poration not  having  asked  to  Intervene  in 
that  capacity.  Suit  was  commenced  May 
22,  1916.  Plaintiffs  did  not  press  tor  a 
preliminary  injunction,  and  the  case  came 
to  trial  September  26,  1916.  On  November  6, 
1916,  the  chancellor  flled  his  findings  of  fact 
and  conclusions  of  law,  with  a  decree  nisi. 
December  14,  1916,  exceptions  thereto  were 
disposed  of  and  the  bill  dismissed  upon.  Inter 
alia,  tbe  ground  of  laches.  Plaintiffs  have 
appealed. 


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101  ATLANTIO  RBPOBTEB 


(Pa. 


To  Indicate  the  material  contentions  Insist- 
ed upon  bs  the  appellants.  It  la  necessarj- 
to  note  only  the  following  averments  and 
prayers  of  their  bill:  Briefly  stated,  the 
plaintiffs  allege  that,  In  pursuance  of  an  or- 
dinance of  the  dty  councils,  dated  February 
14, 1014,  a  contract  authorized  therein  was  ex- 
ecuted on  March  23,  1914,  between  the  city  of 
Philadelphia  and  the  several  railroad  compa- 
ies  nauied  with  it  as  codefendauts;  that  this 
contract  is  illegal  and  void:  First,  because 
the  city  is  therein  obligated  to  expend  ap- 
proximately $10,000,000,  whlcli  at  the  date  of 
the  ordinance,  constituted  an  Increase  in  the 
municipal  debt  beyond  the  then  legal  borrow- 
ing capacity;  and,  next,  because  no  sufficient 
prior  appropriation  was  made  to  meet  the 
obligations  thereby  incurred;  finally,  that 
the  lauds  which  the  railroads  intend  to  take 
for  freightyards,  in  carrying  out  the  plans 
contemplated  by  the  ordinance,  are  greatly 
in  excess  of  their  needs  "both  at  present  and 
for  many  years  to  come,"  such  lands  em- 
bracing properties  of  the  complainants, 
which  the  latter  desire  to  retain  for  indus- 
trial uses.  They  pray:  (1)  That  the  ordi- 
nance and  contract  be  declared  void ;  (2)  that 
the  dty  and  the  railroads  be  enjoined  from 
spending  any  money  or  otherwise  proceeding 
thereunder;  (3)  that  the  railroads  be  espec- 
ially restrained  from  "taking  any  lands  under 
condemnation  proceedings,  in  pursuance  of 
said  illegal  ordinance  or  contract" 

On  this  appeal  the  plaintiffs  state  the  fol- 
lowing questions  involved:  (1)  Did  the  con- 
tract and  ordinance  under  consideration  im- 
pose such  a  liability  upon  the  dty  as  to  in- 
crease its  debt  within  the  meaning  of  the 
Oonstltution?  (2)  "Was  aw  appropriation  by 
councils  to  cover  the  liability  of  the  dty  un- 
der the  contract  essential  to  its  valid- 
ity?" (3)  "When  a  railroad  company  propos- 
es to  condemn  land  under  its  power  of  emi- 
nent domain,  is  the  owner  precluded  from 
having  a  Judldal  inquiry  whether  or  not 
the  taking  is  arbitrary,  or  for  legitimate  rail- 
road purposes?"  (4)  Should  the  plaintiffs' 
bill  have  been  "dismissed  on  the  ground  of 
laches"? 

As  said  by  the  learned  court  below: 

"The  project  for  the  improvement  of  the  south- 
ern section  of  Philadelphia  involved  in  this  lit- 
igation is  the  most  considerable  single  develop- 
ment in  the  city's  history." 

And  its  purposes  are  well  set  forth  In 
the  following  excerpt  from  a  paragraph  of 
the  dty's  answer,  which  was  In  no  wise  Im- 
peached at  trial; 

"The  abolition  of  railroad  crossings  at  grade 
in  that  section  has  engaged  the  attention  of  the 
municipal  authorities  and  the  public  for  many 
years.  •  •  •  Wide  publicity  was  given  to  the 
plans,  and,  through  the  newspaper  press  and 
otherwise,  the  attention  of  the  entire  commu- 
nity was  invited  thereto.  The  method  tboiieht 
best  adapted  to  the  advancement  and  upbuilding 
of  that  locality,  as  finally  evolved,  was  embodied 
In  this  ordinance.  •  •  •  It  has  in  view 
three  principal  objects:  First,  the  abolition  of 
the  grade  crossings  which  have  held  bade  the 


growth  of  the  lower  portion  of  Qie  city  ever  since 
they  have  existed,  •  *  •  to  be  accomplished 
by  elevating  most  of  the  railroad  trackage  trav- 
ersing that  section,  and  incorporating  into  one 
system  •  •  •  gouth  of  the  traveled  territory 
all  the  remaining  tracks,  so  eliminating  existing 
srade  crossings  to  the  number  of  53,  together 
with  73  other  grade  crossings  which  would  re- 
sult from  the  opening  of  streets  under  the  plan, 
being  a  total  of  126  such  surface  crossings,  or 
substantially  all  of  them;  *  •  •  second,  lo- 
cation of  well-situated  sites  for  great  municipal 
piers  and  docks,  to  be  built  at  such  points  as 
to  enable  their  use  to  enhance  the  dty's  commer- 
cial and  port  resources,  •  *  •  to  be  effected 
by  taking  over  from  the  Pennsylvania  Railroad 
Company  and  its  associates  a  part  of  their  prop- 
erties, •  •  •  and  from  the  Baltimore  and 
Ohio  Railroad  Company  and  its  associates  their 
pier  [locating  it],  *  •  •  placing  the  piers  of 
the  railroad  companies  at  the  southeastern  ex- 
tremity of  the  city,  and  providing  adequate  stor- 
age, yardage,  and  shifting  area  in  lieu  of  that 
taken  by  the  city ;  •  •  •  third,  the  unifying 
and  improving  of  the  belt  line  railroad  in  the 
southwestern  and  southern  part  of  the  city,  and 
its  operation  in  conjunction  with  the  tracks  of 
the  various  railroad  companies  in  that  locality, 
•  *  •  together  with  provision  for  the  joint 
use  upon  equitable  terms  not  only  of  the  belt 
line  tracks,  but  also  of  those  of  the  other  rail- 
roads, by  any  additional  railroads  which  may 
in  the  future  seek  entrance  into  the  city." 

These  plans,  as  Incorporated  In  the  ordi- 
nance and  contract  now  before  us,  were  duly 
submitted  to  the  Pennsylvania  State  Util- 
ities Commission  and  approved  by  that  iKxly, 
before  the  present)  proceedings  were  com- 
menced. 

[1,2]  As  to  the  first  question  InTOlved,  the 
injunction  was  not  applied  for  until  the  ex- 
piration of  two  years  and  tliree  months 
from  the  date  of  the  ordinance.  At  that 
time  $2,000,000  had  been  actually  raised,  ap- 
propriated, and  a  large  part  of  it  spent  by 
the  dty;  and  a  loan  for  the  balance  of  the 
estimated  cost  to  the  munidpality  of  all 
the  improvements  outlined  in  the  ordinance, 
amounting  to  $8,940,120,  had  been  authorized 
by  coundls  and  approved  by  the  people  at 
a  spedal  election.  Thus  it  may  be  seen  that 
the  funds  required  by  the  dty  had  been  ei- 
ther actually  appropriated  or  specially  dedi- 
cated to  the  purposes  of  the  contract  and 
ordinance  before  the  municipality's  right  to 
borrow  the  money  was  questioned  in  this 
action.  Moreover,  the  legality  of  these  loans 
has  never  been  attacked  either  directly  or 
indirectly  in  any  other  proceeding;  that  is 
to  say,  while  the  plaintiffs  dallied,  the  dty 
proceeded  to  raise  the  necessary  funds,  and 
a  substantial  part  of  the  money  had  actual- 
ly been  spent,  in  accordance  with  the  terms 
of  the  ordinance,  before  the  present  proceed- 
ing was  instituted. 

The  dty  controller  gave  testimony  tending 
to  show  that  at  the  date  of  the  ordinance  the 
municipality  had  a  margin  of  legal  credit,  or 
borrowing  capadty,  beyond  the  esthnated 
cost  to  it  of  the  Improvements  in  question; 
but  the  chancellor  refused  certain  other  tes- 
timony offered  by  plaintiffs  to  prove  ttiat 
the  controller  had  not  taken  Into  account 
some  Items  of  charge  which,  U  allowed  to 


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917 


figure,  would  reduce  this  margin  to  such  an 
extent  as  to  preclude  the  floating  of  loans 
sufficient  for  the  purposes  of  the  present  or- 
dinance and  contract.  It  is  not  necessary, 
and  we  shall  not  go  Into  the  question  of  the 
propriety  of  the  chancellor's  finding  to  the  ef- 
fect that  the  municipal  credit  was  more  than 
adequate  to  cover  the  full  amoimt  of  the 
estimate,  or  of  the  correctness  of  his  ruling 
in  refusing  the  testimony  offered  to  supple- 
ment the  evidence  given  by  the  controller ;  for, 
after  delaying  their  complaint  till  all  the 
money  had  been  either  actually  or  in  effect 
raised  by  the  city,  the  plaintiffs  cannot  be 
beard  to  say  that  the  contract  and  ordinance 
under  ccmsideration  was  invalid  because  of 
an  alleged  Insufficient  borrowing  capacity. 
To  permit  such  belated,  collateral  attacks 
upon  the  validity  of  duly  authorized  munici- 
pal loans  would  prove  highly  prejudicial  to 
the  public  interests. 

Under  the  circumstances  at  bar,  the  sec- 
ond question  stated  for  our  consideration  by 
tbe  appellants,  as  to  the  necessity  of  prior 
appropriations  by  councils  sufilclent  to  meet 
tbe  full  amount  of  the  estimated  cost  of  the 
contract  to  the  dty.  Is  no  more  controlling  of 
tbe  present  case  than  the  one  mentioned 
above.  As  already  indicated,  the  agreement 
between  tbe  municipality  and  the  raUroads  is 
very  comprehensive  in  character,  and  there- 
imder,  perhaps,  the  former  may  in  the  end  be 
found  to  have  assumed  obligations  to  a  total 
of  $10,940,120,  according  to  the  estimate  of  the 
proper  city  authorities  (Schuldlce  v.  Pitts- 
burgh, 251  Pa.  28,  33,  95  AU.  938) :  only  $1,- 
000,000  of  this  amount  being  appropriated  in 
the  ordinance  now  under  attack.  The  ordi- 
nance in  question  is  carefully  drawn  to  avoid 
legal  pitfalls,  particularly  the  prohibition  ot 
tbe  third  section  of  the  act  of  June  11,  1879 
(P.  L.  130),  reUed  upon  by  appellants,  which 
calls  for  previous  appropriations  whenever 
municipal  contracts  requiring  the  expendi- 
ture of  money  are  made.  The  plaintiffs 
contend  that  the  present  case  falls  within 
this  act;  while  the  defendants  claim  other- 
wise. The  court  below  decided,  however, 
that  the  agreement  did  not  impose  an  im- 
mediate obligation  upon  the  city  to  the  ex- 
tent of  the  total  estimated  expenditures 
which  the  latter  eventually  might  make 
thereunder,  but  that,  according  to  its  terms, 
tbe  obligations  of  the  municipality,  beyond 
tbe  $1,000,000  presently  appropriated,  would 
arise  only  from  time  to  time,  as  other  ap- 
propriations were  actually  made  to  carry 
on  tbe  work  and  perfect  tbe  purchases  re- 
ferred to  in  the  ordinance. 

After  outlining  in  great  detail  the  work  to 
be  done,  tbe  properties  to  be  acquired,  and 
tbe  proportionate  cost  thereof  to  be  borne  by 
tbe  dty  and  railroads  respectively,  tbe  ordi- 
pance  provides  that  the  entire  improvement 
shall  be  completed  within  five  years,  but 
that,  in  event  of  delay  by  "tbe  dty  In  mak- 
ing sufficient  appropriations,"  this  time  lim- 
it sball  be  extended.    It  also  provides: 


That  the  work  "shall  be  divided  into  sections; 
•  •  *  that  one  or  more  sections  shall  be  exe- 
cuted at  a  time,  as  and  when  appropriations 
therefor  shall  be  made  by  the  city;"  that  the 
railroads  "shall  not  be  required  to  undertake 
and  contribute  to  the  cost  of  any  section  of  the 
work  unless  the  city  shall  have  first  appropriated 
a  sum  sufficient  to  meet  its  share  of  the  estimat- 
ed cost  of  such  section";  finally,  that  "the  ac- 
quisition of  property  and  tbe  work  of  construc- 
tion •  •  •  authorized  in  this  ordinance  shall 
be  carried  on,  from  time  to  time,  as  councils 
shall  provide  the  necessary  funds,  and  the  rail- 
road companies  shall  provide  their  proportion  of 
the  cost  whenever  they  shall  be  notified  to  do  so 
by  ordinance  of  councils:  •  •  •  Provided, 
that  every  contract  for  public  improvements  au- 
thorized by  this  ordinance  shall  contain  a  clause 
that  it  is  subject  to  tbe  proviaons  of  the  act  of 
JTune  1,  1885  (P.  L.  37),  and  the  liabihty  of  the 
city  thereunder  shall  be  limited  by  the  amounts 
which  shall  have  been  or  may  be  from  time  to 
time  appropriated  for  the  same." 

Much  may  bo  said  both  for  and  against 
the .  view  of  tbe  court  below,  that  this  or- 
dinance represents  a  mere  program  of  im- 
provements laid  out  and  agreed  to  between 
the  municipality  and  the  railroads,  to  be 
executed  in  convenient  blocks,  or  sections, 
when  and  as  appropriations  may  at  its  op- 
tion be  made  by  the  foemer  to  cover  tbe 
city's  proiH>rtion  ot  the  cost  of  tbe  particular 
section  about  to  be  undertaken,  and  that 
obligations  in  the  nature  of  indebtedness 
would  arise  thereunder  only  from  time  to 
time,  when  and  as  the  dty  thus  committed 
itself  to  a  particular  section  of  tbe  Improve- 
ment by  making  an  appropriation  to  cover 
its  proportion  of  the  cost  thereof;  but,  ow- 
ing to  the  laches  of  the  complainants,  we  do 
not  feel  called  upon  to  determine  this  point 
Here  the  plaintiffs  waited  for  more  than  two 
years  before  filing  their  bill,  and  in  the 
meantime  vast  sums  of  money  had  been 
raised  and  spent  under  the  ordinance;  so 
that  to  stop  tbe  undertaking  at  this  time 
would  work  a  great  public  evil.  It  may  be 
noted  that  tbe  present  appeal  was  not  made 
a  supersedeas,  and  hence  the  Improvement 
has  now  been  in  course  of  completion  for 
about  three  years. 

Tbe  original  plaintiffs  sued  as  taxpayers, 
as  well  as  property  owners ;  but,  as  previous- 
ly stated,  they  subsequently  disposed  of  their 
property  holdings  to  the  intervening  plaintiff, 
and  now  appear  simply  as  taxpayers.  Ck>un- 
sel  for  the  appellants  well  says,  '*The  bill 
might,  perhaps,  have  been  Objected  to  on 
tbe  ground  of  multlfarlousnetiSj"  since  it 
endeavors  to  have  determined  at  one  and  the 
same  time  tbe  separate  rights  of  taxpayers 
and  property  owners.  While  we  shall  not 
stop  to  discuss  the  matter,  yet  tn  passing, 
we  note  it  Is  apparent  that  the  bill  was  filed 
to  protect  tbe  particular,  individual  property 
rights  of  the  plaintiffs,  rather  than  thdr 
general  rights  as  taxpayers.  Tbe  rule  of 
laches  applies,  however,  from  whichever 
point  tbe  proceedings  may  be  viewed,  wheth- 
er as  a  taxpayers'  or  proi)erty  owners'  bill; 
and,  when  the  facts  call  for  Its  application, 
tbe  rule  may  control  even  In  a  case  where 


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101  ATLANTIC  REPORTEB 


(Pa. 


there  is  tcTolved  a  public  Improvement  con- 
structed witboub  lawful  autborlty  (wblcb 
we  do  not  hold  to  be  the  fact  in  the  present 
case).  Becker  v.  Lebanon  &  Myerstown  St. 
Ry.  Co.,  188  Pa.  484,  493,  496,  41  Atl.  612; 
Keeling  v.  Pittsburg,  Va.  &  Charleston  By. 
Co.,  206  Pa.  31,  34,  54  Atl.  485;  Condron  t. 
Penna.  R.  R.  Co.,  233  Pa.  197,  82  Atl.  64. 

[3]  Moreover,  the  power  to  Issue  Injunc- 
tions In  cases  such  as  the  one  before  us  Is 
much  restricted  by  the  act  of  April  8,  1846 
(P.  L.  272),  entitled,  "An  act  relating  to  the 
Chancery  powers  of  courts  in  the  dty  and 
coimty  of  Philadelphia,"  which  provides: 

"That  no  courta  within  the  city  and  county  of 
Philadelphia  shall  exercise  the  powers  of  a 
coart  of  chancery,  in  granting  or  continuing  in- 
janctions  against  the  erection  or  use  of  any  pub- 
lic works  of  any  kind,  erected  or  in  progress  of 
erection,  under  the  auUiority  of  an  act  of  the 
Legislature,  until  the  queations  of  title  and  dam- 
ages shall  be  submitted,  and  finally  decided  by  a 
common-law  court.** 

This  act  was  discussed,  sustained,  and  ap- 
pUed  in  Wolbert  v.  Philadelphia,  48  Pa.  439 
(property  owner's  bill),  Wheeler  v.  Philadel- 
phia, 77  Pa.  338,  344,  and  Wheeler  v.  Rice, 
83  Pa.  232,  Id.,  4  Brewst.  129  (taxpayers' 
bills).  Also  see  opinion  by  Sharswood,  J.,  In 
Flanagan  v.  Philadelphia,  8  Phlla.  110,  111, 
and  by  Paxson,  J.,  in  Philadelphia  &  Reading 
B>  R.  Co.  T.  Philadelphia,  8  PhUa.  284. 

[4]  We  have  already  sufficiently  disposed 
of  the  last  of  the  four  questions  stated  by 
the  appellants  for  our  consideration,  and  the 
only  one  remaining  is  the  third,  which  involv- 
es the  right  of  the  defendant  railroads  to 
condemn  certain  lands  for  frelghtyard  pur- 
poses. The  agreement  incorporated  la  the 
ordinance  provides  that  two  of  the  railroads 
are  to  surrender  and  the  dty  Is  to  purchase 
the  former's  present  yards,  when  the  latter 
makes  appropriations  suflBdent  for  that  pur- 
pose, these  properties  to  be  used  for  and  in 
oonnectlcHi  with  new  and  much-needed  pub- 
lic docks  and  piers  to  be  constructed  and 
maintained  by  the  dty.  It  also  provides  that 
lands  for  'yard  fadlltles  equal  to  those  aban- 
doned by  these  railroads  shall  be  taken  up  by 
them  In  a  designated  section  on  the  line 
of  the  Improvement,  the  cost  thereof  to  be 
borne  equally  by  the  dty  and  the  commra- 
tlons  In  question,  but  any  additional  real 
estate  needed  for  yard  purposes  to  be  paid 
for  solely  by  the  latter.  The  map  prepared 
by  the  dty  and  Introduced  in  evidence  by 
IflalntUIs  shows  two  large  tracts  of  land,  one 
marked  "Space  required  for  Pennsylvania 
Railroad  terminal  yard,"  and  the  other,  im- 
mediately south  thereof,  designated  "Space 
required  for  Baltimore  &  Ohio  Railroad  ter- 
minal yard."  These  are  the  tracts  owned  by 
the  plaintiffs.  It  Is  plain  from  this  last-men- 
tioned piece  of  evidence,  and  other  proofs  in 
the  case,  that  the  railroads  and  the  dty 
agreed  between  themselves  that  the  condem- 
nation of  this  land  for  railroad  yards  was  a 
necessary  and  essential  part  of  the  general 
ImprovMnent  contemplated  by  the  ordinance. 


iWhlle,  in  their  statement  of  the  third 
"question  involved,"  the  appellants  set  forth 
a  broad,  goieral  subject  for  our  oonsidera- 
tlon,  yet,  when  the  record  covering  this 
branch  of  the  case  is  looked  at  critically,  as 
It  must  be  in  a  matter  of  sudi  grave  pid>Uc 
importance,  it  will  be  seen  that  the  real 
points  thereby  presented  are:  (1)  Under  the 
drcnmstances  at  bar,  do  the  railroads  possess 
a  legal  right  to  condemn  any  of  the  lands 
here  in  controversy?  (2)  If  so,  then  can  they 
lawfully  take  therefrom  an  acreage  greater 
than  required  for  tbdr  iMresent  needs?  The 
prayer  of  the  bill  is  : 

"T%at  aaid  defendant  railroads,  and  each  of 
them,  be  restrained  •  •  •  from  taking  any 
lands  under  condemnation  proceedings,  in  porsn- 
ance  of  said  illegal  ordinance  or  contract. 

When  the  case  came  to  trial,  however,  the 
plaintiffs  seem  to  have  assumed  the  position 
that  the  corporations  which  were  required  to 
surrender  thdr  ivresent  frelghtyards  ml^t 
lawfully  condemn  other  lands  to  take  the 
place  of  those  given  up,  but  only  such  as 
are  necessary  for  their  "actual  needs" ;  far- 
ther, that  it  was  the  province  and  duty  of 
the  chancier  to  determine  whether  the  rail- 
roads were  about  to  "take  and  ctmdemn  [for 
frelghtyard  purposes]  any  of  the  plalntUTs 
said  lands  arbitrarily  and  without  regard  to 
thdr  [the  railroads']  actual  needs."  The 
court  below  held  that,  the  dty  and  railroad 
authorities  having  acted  in  the  matter,  it 
would  not  overrule  their  Judgment 

At  trial  there  was  no  real  effort  to  go  into 
the  question  of  the  future  frelghtyard  re- 
quirements of  any  of  the  defendant  compa- 
nies. A  witness  was  placed  upoo  the  stand 
by  plaintiffs,  and  the  following  tender  of  evi- 
dence was  made: 

"If  it  pleaae  the  coart,  the  •  •  •  railroad 
company,  as  is  conceded  in  this  proceeding,  pro- 
poses to  condemn  for  railroad  purposes  acme  200 
and  odd  acres  of  land  indicated  on  this  map 
[being  the  map  previously  referred  to  in  this 
opinion].  I  offer  to  prove  by  this  witness  the 
extent  of  its  [the  railroad's]  busineas  now  being 
carried  on,  *  *  *  as  a  step  in  the  proof  that 
the  taking  of  this  approximate  mile  of  river 
front  in  lien  of  the  front  to  be  abandoned, 
*  •  •  is  an  arbitrary  taking,  and  in  no  wise 
necessary  for  railroad  purposes  in  connection 
with  the  present  plan  of  abolishing  grades  in 
South  Philadelphia  or  otherwise." 

The  overruling  of  this  offer  forms  the  basis 
of  the  principal  assignment  of  error  In  sup- 
port of  the  "question  involved"  now  under 
consideration. 

It  will  be  noticed  that  the  (rfler  just  quoted 
was  to  show  the  business  "now  being  carried 
on,"  and,  although  this  was  stated  to  be  "a. 
step  In  the  proof,"  yet  there  was  no  other 
proposal,  either  then  or  afterwards,  to  show 
that  the  lands  about  to  be  appropriated  were 
not  essential  to  meet  the  future  require- 
ments of  the  railroads.  It  is  well  established 
that,  in  cases  of  this  character,  "a  liberal 
consideration  for  future  as  well  as  existing 
necessities"  is  the  test  Pittsburgh  Junction 
R.  R.  Ca's  Appeal,  122  Pa.  511,  530,  6  Atl. 


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p«.) 


McEENKA  r.  YERNON 


919 


SM,  e  Am.  St  B«p.  1^:  Pittsburgh,  Ft. 
Wayne  &  GbUxgo  Ry.  Co.  t.  Peet.  1S2  Pa. 
488,  494,  26  AtL  612.  19  Ia  R.  A.  467.  More- 
orer,  this  ooDtract  was  expressly  entered  lo- 
to  onder  and  by  virtue  of  authority  granted 
by  the  act  of  June  8,  1874  (P.  U  282),  which 
provides  that  the  proper  municipal  author- 
ities are  empowered  to  make  contracts  with 
railroad  companies  whose  lines  run  within 
the  limits  of  tlielr  cities,  "whereby  the  said 
'Companies  may  relocate,  change  or  elevate 
their  raUroads  within  aald  limits  •  •  * 
tn  such  manner  as  in  the  Judgment  of  such 
authorities  *  *  *  may  be  best  adapted 
to  secure  the  safety  of  lives  and  property, 
and  promote  the'lnterests  of  said  dty,"  and 
"for  that  purpose  the  dty  authorities  shall 
have  power  to  do  all  such  acts  as  may  be 
necessary  and  proper  to  effectually  carry  out 
such  contracts."  This  act  has  beea  liberally 
•  'Construed  whenever  before  the  courts.  West- 
«m  Penna.  R.  K.  Co.'s  Appeal,  99  Pa.  165, 
162-163 ;  Biyner  v.  Xongblogheny  Bridge  Co., 
190  Pa.  617,  627,  42  AU.  1100.  Also  see  the 
■opinion  of  that  eminent  Jurist  the  late  Judge 
Hare  In  Duncan  t.  Penna.  R.  R.  Co.,  7  Wkly. 
Notes  Cas.  S51,  654.  And  in  conjunction  with 
the  act  of  March  17,  1869  (P.  U  12),  confer- 
ring the  right  of  eminent  domain  upon  rail- 
roads "to  straightenv  widen,  deepen,  enlarge 
And  otherwise  Improve"  their  lines  (Wilson  v. 
Pittsburg  &  Lake  Erie  R.  R.  Co.,  222  Fa.  S41, 
044-646,  72  AtL  236),  the  legislation  In  ques- 
tion not  only  affords  support  to  the  contract 
bere  In  controversy,  but  confers  «uch  broad 
porwera  upon  munlci'ial  and  railroad  author- 
ities that  it  would  take  strong  and  conclusive 
evidence  to  Justify  a  court's  interference,  tO' 
any  degree,  with  their  combined  Judgment, 
'exercised  thereunder,  when  dealing  with  the 
matter  of  yard  or  other  facilities  required  to 
meet  present  and  future  needs  created  by  a 
g«ieral  scheme  for  railroad  relocation,  ele- 
vation, and  improvement  of  the  magAltude  of 
the  one  at  bar.  The  record  under  review 
shows  no  evidence,  either  produced,  offered, 
-or  suggested  to  warrant  such  Interference  in 
this  case. 

When  the  subject  in  hand  was  under  dts- 
•cossion  at  trial,  the  learned  chanoelior  well 
remarked  that,  so  far  as  the  dty  of  Philadel- 
i»bia  and  the  raUroads  are  concerned,  "this 
Is  aa  Improvement  for  the  next  century,  or 
two  centuries  to  come" ;  and,  since  the  appel- 
lants assert  their  lands  to  be  the  only  ones 
la  tlte  locality  tn  question  available  and.  suit- 
able for  frelgbtyard  purposes,  if  this  asser- 
tion be  true,  and  the  general  scheme  of  re- 
k>oati<Ht  is  to  prove  a  permanent  success,  it 
may  readily  be  seen  how  necessary  It  was 
for  file  dty  and  railroads  to  look  far  Into 
the  future,  in  planning  for  and  providing 
jrard  fadlities. 

Plaitatiffs,  of  course,  have  a  full  and  ample 
remedy  At  law  to  recover  damages  suffered 
by  them  as  propertjr  owners;    but,   on  the 


assignments  now  before  ns,  we  are  not  con- 
vinced dther  of  reversible  trial  error  or  that 
the  court  below  would  have  been  warranted 
in  granting  any  part  of  the  relief  prayed  for 
in  the  bill. 

Hie  decree  is  affirmed  at  tbe  cost  of  ap- 
pellants. 

(»  Pa.  U) 
McKENNA  ▼.  VERNON. 

(Supreme  Court  of  Pennsylvania.   'May  7, 
1917.) 

CoNTBACTB  «=»a90  —  Building  CowraAor  — 
Conditions  as  to  Payment. 
Where  the  provision  in  a  building  contract 
that  payments  ^ould  be  made  only  on  certificate 
of  the  architect  had  been  repeatedly  disregard- 
ed, and  the  architect  was  satisfied  with  the 
work,  deviations  having  been  made  at  his  di- 
rection, a  verdict  for  the  contractor  for  a  bal- 
ance duo  was  warranted,  the  owner  having  al- 
most daily  supervised  the  work,  and  made  no 
complaint  as  to  the  deviations,  and  hence  the 
court  properly  refused  to  enter  judgment  for 
defendant  notwithstanding  the  verdict. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  by  Bernard  J.  McEenna,  trading 
as  John  McKenna  &  Son,  against  William  J. 
Vernon.  From  a  Judgment  for  plaintiff,  de- 
fendant appeals.     Affirmed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TKEZAT,  STEWART,  FRAZBR,  and  WAL- 
LING, JJ. 

Stanley  W.  Root,  of  Philadelphia,  for  ap- 
pellant Barry  8.  Mesirov  and  James  J. 
Breen,  both  of  Philadelphia,  for  am>eUee. 

STEWART,  J.  Tbls  was  an  action  to  re- 
cover a  balance  alleged  to  be  due  on  a  build- 
ing contract  By  written  agreement  under 
date. of  January  20,  1914,  the  plaintiff  under- 
took the  erection  and  completion  of  a  moving 
picture  theater  at  1626-28  Cumberland  street 
in  the  dty  of  Fbiladelphla,  agreeably  to  cer- 
tain plans  and  spedfications  whldi  accom- 
panied and  were  made  part  of  the  agreement 
he  to  receive  therefor,  in  full  compensation, 
the  sum  of  $7,760,  to  be  paid  by  the  owner 
to  the  contractor  wb<rily  upon  certificates  of 
the  architect  as  follows:  Eighty  per  cent,  ot 
the  work  set  In  place  as  the  work  proceeds, 
tbe  first  payment  within  30  days  after  tiie 
completion  of  tbe  work;  all  payments  to  be 
due  when  certificates  of  the  same  shall  have 
been  Issued  by  the  architect;  the  building  to 
be  completed  by  April  20,  1914,  and  tbe  work 
to  be  done  under  the  dlreotlon  of  the  ardii- 
tect  A  supplemental  agreement  was  entered 
into  by  the  parties  March  24,  1914,  which 
provided  for  an  enlargement  of  tbe  theater 
building,  for  which  the  contractor  was  to 
receive  an  additional  $1,000.  The  main  pro- 
visions of  this  agreement  were  similar  to 
those  contained  in  the  earlier.  By  the  later 
agreement  the  work  was  to  be  completed  on 
or  before  tbe  11th  of  May,  1914.    From  time 


«=3Por  otb«r  casM  M«  nm*.toplc  and  KKY-NUMEBR  Id  all  Key-Numbared  Ditwta  and  IndazM.- 


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920 


101  ▲TLAm'IC  REPORTBB 


(Pa. 


to  time,  as  the  work  progressed,  tbe  owner 
made  several  payments  on  account,  amount- 
ing in  all  to  $6,000.    Suit  was  brought,  August 
28,   1014,  to  recover  the  balance  of  $2,750, 
with  Interest  from  June  30,  1014.     Defense 
was  made  on  several  grounds:     Failure  of 
contractor  to  erect  and  complete  the  building 
In  accordance  with  the  plans  and  spedflca- 
tions,  the  substituting  of  inferior  and  cheaper 
materials,  and  Inferior  workmanship  through- 
out, entaUing,  for  the  supply  and  correction  of 
the  same,  if  attempted,  a  large  expenditure. 
Further,  defendant  claimed  that  the  building 
was  not  completed  within  the  time  allowed  by 
the  contract,  and  demanded  as  a  set-off  a  pen- 
alty of  $2S3.35.    The  trial  resulted  in  a  verdict 
for  the  plaintiff  for  $2,iK)0.    At  the  conclu- 
sion of  the  evidence,  the  defendant  asked  for 
a  compulsory  nonsuit,  which  was  refused. 
The  several  assignments  of  error,  in  one 
form  and  another,  relate  directly  or  indirect- 
ly to  this  one  feature  of  the  case,  and  are  all 
based  on  the  theory  that,  In  the  absence  of  a 
certificate  from  the  architect  of  the  final 
completion   of    the    building   in    accordance 
with  plans   and   specifications,   no   right  of 
action  existed.    Not  only  is  there  no  express 
provision  to  this  effect  in  the  contract,  but 
the  contract  itself  shows  that  no  distinction 
Is  there  made  between  final  payment  and  the 
payments  on  account  of  the  80  per  cent,  of 
work  in  place.   All  payments  were  to  be  made 
only  on  certificate  of  the  architect,  and  yet 
vtritb  a  single  exception  each  of  the  seven 
payments  made  as  the  work  progressed  was 
made  without  a  certificate  being  asked  for. 
With  such  constant  and  repeated  disregard 
on  the  part  of  the  owner  to  exact  compliance 
with  this  provision  in  the  contract,  it  is  too 
late  now  for  him  to  insist  that  failure  on  the 
part  of  the  plaintiff  to  secure  such  certifi- 
cate before  suit  defeats  his  right  of  action. 
Furthermore,  on  the  trial,  the  architect,  call- 
ed as  a  witness,  testified  that  the  plaintiff 
had  performed  substantial  compliance  with 
all  the  requirements  of  the  contract,  that  he 
had  not  given  the  certificate  to  this  effect 
only  because  it  bad  not  been  asked  tor,  and 
that  whatever  variations  there  were  from 
the  spedflcatioDs  were  authorized  and  di- 
rected by  him.    The  provision  in  the  contract 
for  written  certificates  from  the  architect  is 
for  tbe  benefit  and  protection  of  the  owner. 
If  he  waived  It  repeatedly,  as  he  did  here, 
during  the  progress  of  the  work,  be  cannot 
complain  if  he  be  held  to  have  waived  it 
when  he  seeks  to  defend  against  a  final  pay- 
ment for  work  shown  to  have  been  honestly 
and  substantially  performed,  especially  when 
almost  daUy  he  has  had  the  work  under  his 
own  observation,  without  remonstrance  or 
complaint  at  any  time  with  respect  to  either 
the  work  done  or  materials  employed.    This 
being  the  situation,  the  court  was  entirely 
right  In  refusing  the  nonsuit. 


For  like  reason,  there  was  no  error  In  re- 
fusing to  give  binding  Instructions  for  the 
defendant  If  the  court  was  right  in  these 
rulings,  the  other  assignments  of  error  neo- 
essarily  fall. 

The  Judgment  Is  affirmed. 


(tss  Pa.  U) 
In  re  MANIATAKIS'  ESTATE. 

(Supreme  Court  of   Pennsylvania.     April   80. 
1917J 

1.  LnoTATioN   or  Acrrows  «s»160(l)— Ruif- 
KiNO  OP  Statute— Acknowledgment. 

A  clear,  distinct,  and  unequivocal  acknowl- 
edgment of  a  debt  as  an  existing  obligation,  such 
as  is  consistent  with  a  promise  to  pay,  is  suffi- 
cient to  toll  the  statute  of  limitations:  but 
there  must  be  no  tmcertainty,  either  in  the  ac- 
knowledgment or  in  the  identification  of  the 
debt,  and  a  mere  expression  of  willingness  or  de- 
sire to  pay  is  insufficient. 

2.  LnciTATiON  OF  Actions  ®=>167(1)— Toll- 
ing OF  Statuts — Payment. 

Payment  on  account  of  a  debt  will  stop  tbe 
running  of  limitations. 
8.  Limitation  of  Actionb  ®=»157(1)  —  Pat- 

MKNT— TENDEB. 

A  tender  of  payment  on  account  of  a  debt, 
though  not  accepted  by  the  creditor,  is  a  suffi- 
cient acknowledgment  by  the  debtor  to  toll  tbe 
statute  of  limitations;  hence,  where  decedent, 
within  the  period  of  limitation,  on  tbe  creditor's 
demand,  tendered  a  small  payment,  which  was 
refused,  such  tender  stopped  the  running  of  lim- 
itations. 

Appeal  from  Orphans'  Ooart,  Allej^eny 
C!ounty. 

In  the  matter  of  the  estate  of  Andros 
Manlatakds,  deceased.  From  a  decree  award- 
ing the  entire  fund  In  the  hands  of  the  ex- 
ecutor to  George  P.  Calogera,  on  account  oC 
a  claim  against  a  partnership  of  which  de- 
ceased had  been  a  member,  JTames  Pappas 
and  others  appeal.    Affirmed. 

Argued  before  SHOWN,  C.  J.,  and  MES- 
TRE3ZAT,  STEWAfiT,  MOSCHZISKER.  and 
rRA2EB>  JJ. 

Saul  Schein,  of  Plttsbnrgh,  for  appellants. 
W.  D.  N.  Rogers  and  O.  S.  Richardson,  uotb 
of  Pittsburgh,  for  appellee. 

FRAZER,  J.  This  appeal  Is  by  legatees 
under  the  will  of  Andros  Maniatakis  from  the 
decree  of  the  orphans'  court,  awarding  the  en- 
tire fund  in  the  hands  of  the  executor  to 
George  P.  Calogera,  on  account  of  a  claim  of 
the  latter  against  a  partnership  of  which 
deceased  had  been  a  member.  There  was  no 
dispute  as  to  the  amount  of  the  claim,  $5,411.- 
27,  or  at  least  that  the  amount  was  sufficient 
to  cover  the  entire  balance  for  distribution, 
and  the  only  question  involved  la  whether 
there  was  sufficient  evidence  of  acknowledg- 
ment of  the  debt  and  promise  to  pay  to  toll 
the  statute  of  limitations. 

In  1908,  and  previous  thereto,  decedent 
was  a  partner  with  one  Carooglanls  in  the 
retail  grocery  business  In  Pittsburg,  and 
claimant  a  wholesale  grocer  In  Mew  Tork, 


»For  otbtr  caaM  »••  wm«  toslc  ud  KBY-MUIIBBR  In  all  KwNnmberad  DlgaaU  aod  ladaxM 


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Ur  KB  MANIAXAKIS'  SSTA.TX: 


921 


trom  whom  the  partnership  purcfaaaed  xaer- 
chandiae.  An  account  remained  unpaid 
which  amounted  to  the  claim  presented,  and 
further  credit  was  refused.  In  November, 
1900,  claimant  visited  Pittsburgh  to  either  col- 
lect or  secure  payment  of  the  Indebtedness. 
The  firm,  however,  being  unable  to  pay  at  the 
time,  by  agreement  of  the  parties  the  ac- 
count was  placed  for  collection  In  the  hands 
of  John  Andrews,  a  mutual  friend.  In  an  In- 
terview with  the  partners  In  December,  1909, 
Andrews  Informed  them  of  having  received 
orders  from  Calogera  to  close  their  store,  but 
preferred  not  to  do  so,  whereupon  payment  of 
part  of  the  dalm  "after  Christmas"  was 
promised.  No  payment  was  made,  though 
frequent  assurances  were  given,  and  later  the 
firm  property  was  seized  and  sold  by  the 
landlord  under  a  distress  for  rent  All  de- 
mands by  Andrews  for  payment  were  met 
with  substantially  the  same  response — ^that 
the  debtors  were  willing  to  pay,  but  were 
without  funds  to  do  so.     In  tiie  summer  of 

1911,  deceased,  having  acquired  a  half  In- 
terest In  another  business,  informed  Andrews 
be  owed  for  the  purchase  of  his  Interest,  and 
as  soon  as  that  Indebtedness  was  jiald  he 
would  make  payments  on  the  Calogera  ac- 
count, "maybe  half  share,  or  maybe  the  full 
amount."  Later  deceased  disposed  of  this 
Interest  In  the  business  referred  to,  but  mnde 
no  payment  to  Andrews.  The  last  Interview 
took  place  three  weeks  before  decedent  was 
removed  to  the  hospital,  which  was  shortly 
before  his  death.  The  date  of  this  Interview 
does  not  clearly  appear,  but,  according  to  the 
testimony  of  Andrews,  it  was  not  earlier  than 

1912.  Another  witness  fixed  the  time  as  in 
1914.  The  account  was  audited  In  September, 
1916;  consequently  the  exact  date  Is  imma- 
terial, since  the  conversation  was  had  at 
least  within  the  statutory  period.  Andrews 
testified  that  at  this  interview  decedent  ten- 
dered him  $50  in  part  payment  of  the  Indebt- 
edness, which  amount  he  reused  to  accept  on 
account  of  a  debt  of  over  $&,uOO,  saying, 
"Keep  it  to  buy  stamps."  Hla  version  of  the 
conversation  was  given  as  follows,  on  cross- 
examination: 

"He  offered  me  $60,  and  I  said,  'Andy,  think 
for  me,  you  got  viha.t  you  got  the  last  time ;'  and 
■o  he  offered  me  $50,  snd  as  soon  as  he  got  the 
money  [from  the  man  who  bought  his  interest] 
to  give  me  gome  more,  and  I  said,  'You  keep  it. 
I  was  ripping  mad.  I  don't  want  to  lose  my 
temper.  I  said,  'Too  better  buy  stamps;  I 
don't  think  Calogera  needs  that'  •  •  •  I 
said,  'After  you  owe  $5,000,  you  give  me  $50 
to  send  it.'  Q.  He  denied  that?  A.  No;  he 
•aid,  'As  soon  as  I  get  the  money  I  send  it.' " 

This  testimony  was  corroborated  by  two 
witnesses.  One  testified  to  the  offer  of  $90 
and  the  refusal  of  Andrews  to  receive  that 
amount,  for  the  reason  the  payment  was  too 
small,  considering  the  amount  of  the  account 
He  admitted,  however,  not  having  actually 
seen  the  money.  The  other  witness  testified 
to  having  seen  decedent  take — 
"out  of  his  pocket  two  $20  bills  and  one  $10 
bill  and  give  to  Andrews,  and  he  says,  'Why  did 


you  give  me  that  money,  mereyr-lor  five'  thoo- 
sapd  dollars,  you  try  to  give  me  fifty  dollars.' 
Q.  What  else  did  he  say?  A.  Then  I  left  him 
there,  because  I  had  to  go  to  work.  I  don't 
know  what  they  done  afterwards.  What  I 
hear  is  that  'Ton  take  this  $50,  and  later  on 
I  give  you  some  more.'  ♦  •  *  Q.  And  you 
saw  that  there  were  two  $20  blllB  and  one  $10 
bill?  A.  He  take  a  roll  of  money  out  of  his 
pocket,  and  I  saw  he  was  trying  to  give  liim  two 
$20  and  one  $10." 

[1,2]  A  clear,  distinct,  and  unequivocal  ac- 
knowledgment of  a  debt  as  an  existing  obliga- 
tion, such  as  is  consistent  with  a  promise  to 
pay,  \s  suffldeut  to  toll  the  Btatote^  Palmer 
V.  OUlespie,  95  Pa.  340,  40  Am.  Oep.  657; 
Wells  V.  Wilson,  140  Pa.  616,  21  AtL  445. 
There  must,  however,  be  no  uncertaiat7>  ei- 
ther la  the  acknowledgment  or  in  the  identl- 
flcaUon  of  the  debt  (Landis  v.  Both,  109  Pa. 
621,  1  AU.  49,  58  Am.  Rep.  747);  and  the  ac- 
knowledgment must  be  plainly  referable  to 
the  very  debt  upon  which  the  action  is  based 
(Burr  V.  Burr,  26  Pa.  284 ;  Clark  v.  Magulre, 
35  Fa.  259),  and  also  must  be  cousistent  with 
a  promise  to  pay  on  demand  and  not  accom- 
panied by  other  expressions  indicating  a 
mere  willingness  to  pay  at  a  future  time 
(Keener  v.  Zartman,  144  Pa.  179,  22  Atl.  889). 
A  mere  declaration  of  an  intention  to  dis- 
charge an  obligation  is  not  the  equivalent  of 
a  promise  to  pay,  but  Is  more  in  the  nature  of 
a  desire  to  do  so,  from  which  there  Is  no 
implication  of  a  promise. 

"To  be  constatent  with  a  promise  to  pay  the 
debt,  the  acknowledgment  must  be  such  as  indi- 
cates an  intention  to  pay  the  debt  existing  at 
the  time  of  the  acknowledgment  The  time  of 
payment  need  not  be  immediat&bnt  the  inten- 
tion to  pay  most  be  present  Hence  any  lan- 
guage inconsistent  with  this  present  intention 
must  be  inconsistent  with  a  new  promise. 
*  *  *  An  acknowledgment  is  less  in  force 
than  a  promise,  and  hence  the  necessity  of 
scrutinizing  closely  the  extent  of  meaning  the 
language  of  the  acknowledgment  has."  Sense- 
man  et  aL  V.  Hershman  &  Houser,  82  Pa.  83, 
85. 

In  Miller  v.  Baschore,  83  Pa.  356,  24  Am. 
Bep.  187,  a  letter  from  the  debtor  to  the 
creditor,  acknowledging  the  existence  of  the 
debt,  but  not  stating  the  amount  and  con- 
cluding with  a  promise  after  other  persons 
to  whom  the  debtor  owed  money  were  paid, 
as  follows: 

"I  will  pay  you  all  I  owe  you,  and  if  I  can 
do  anything  for  you  before  that  time  I  will  do 
so ;  you  need  not  trouble  yourself  about  me  that 
I  will  not  pay  you,  for  I  expect  to  pay  all  I 
owe" 

— was  held  to  be  Insufficient  to  toll  tbc  stat- 
ute for  the  reasoi^  as  stated: 

"There  is  nothing  specific  or  definite,  for  it  la 
not  stated  what  note  is  referred  to,  neither  is 
the  amount  of  the  balance  indicated;  *  •  • 
the  defendant  promises  to  pay  a  balance  of  a 
note,  but  neither  note  nor  balance  is  stated; 
he  promises  to  pay  what  he  owes,  but  whether 
that  is  much  or  little  we  are  not  informed; 
there  is,  in  fact,  neither  the  required  certainty 
nor  perspicuity  in  the  evidence  produced  to 
break  down  the  defense." 

In  the  present  case  the  various  promises 
made  by  deceased  to  pay  when  able  seem  in- 


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(nfflclent  to  remove  the  bar  of  the  statute 
under  the  rules  of  law  established  by  the 
cases  abOYe  referred  to.  There  Is  no  doubt, 
however,  as  to  the  ideutlflcatioD  of  the  debt 
Itself.  There  was  but  one  account  between 
the  parties,  and  the  amount  bad  been  de- 
termined upon,  and  was  not  any  time  denied 
or  disputed  in  their  various  conversations. 
To  establish  an  acknowledgment  of  the  debt 
or  promise  to  pay,  claimant  relies  upon  what 
took  place  at  the  last  interview  between 
Andrews  and  deceased,  and  offers  as  a  substi- 
tute for  payment,  or  part  payment,  the  ten- 
der of  $50,  on  account  of  the  debt,  the  amount 
of  which  was  spedflcally  referred  to  by  the 
parties  in  the  interview.  A  iMiyment  on  ac- 
count of  the  debt  Is  sufficient  recognition  of 
the  Indebtedness  to  toll  the  statute. 

"There  can  be  no  more  unequivocable  acknowl- 
edgment of  a  present  existing  debt  tban  a  pay- 
ment on  account  of  It,  and,  according  to  all  the 
authorities,  that  is  all  that  is  requirpd  to  take 
a  case  out  of  the  statute  of  liniitations.  But 
then  it  must  plainly  appear,  and  not  be  a  mat- 
ter of  conjecture  merely,  that  the  payment  wu 
made  on  account  of  the  very  debt  wliich  is  in 
dispute."    Barclay's  Appeal,  64  Pa.  69. 

In  Tyers  v.  Kahn,  62  Pa.  Super.  Ct.  24.  28, 
the  above  language  was  quoted,  and  that 
court  held  a  payment  of  $50,  accompanied 
by  a  letter  in  whl(di  defendant  said: 

"I  do  not  know  of  my  own  knowledge  what 
I  owe  you,  but  I  have  no  doubt  you  have  it 
correct.  •  •  •  I'll  send  you  some  from  time 
to  time  as  I  can  untU  it  is  paid" 

—was  sufficient  to  toll  the  statute,  where  a 
statement  of  the  balance  had  been  previously 
sent  by  defendant  to  plaintiff,  and  there  was 
evidence  of  no  other  debt  to  which  the  pay- 
ment could  be  applied. 

[S]  In  our  case  the  tender  of  payment  on  ac- 
count was  not  In  fact  accepted  by  the  creditor, 
and  the  question  arises  whether  sudi  tender  Is 
equivalent  to  payment,  in  so  far  as  evidence  of 
acknowledgment  of  the  existence  of  the  debt  is 
concerned.  Ordinarily  a  tender  of  money  does 
not  operate  as  a  satisfaction  of  the  debt,  or 
a  part  of  it,  as  the  case  may  be,  and  does 
not  bar  an  action  thereon.  88  Cyc  162.  But 
to  the  extent  of  a  recognition  or  acknowledg- 
ment of  the  existence  of  an  indebtedness  it 
is  unconditional,  and  where  there  Is  a  ten- 
der of  a  part  of  the  debt  only,  accompanied 
by  a  distinct  acknowledgment  of  the  exist- 
ence of  the  remainder,  we  see  no  reason  in 
principle  for  holding  its  effect  as  admission 
must  depend  upon  whether  or  not  the  amount 
tendered  was  actually  accepted  by  the  cred- 
itor. 

As  a  rule  the  refusal  of  a  tender  is  found- 
ed on  different  grounds  from  those  on  which 
the  partial  payment  was  declined  in  this 
case,  and,  consequently,  gives  rise  to  the  ques- 
tion as  to  whether  the  tender  was  sufficient, 
and  should  have  been  accepted  by  the  party 
to  whom  made.  The'  refusal  of  an  offer  of 
payment  on  account  for  the  reason  appearing 


here  Is  unusual,  and  audi  refusal,  for  the 
reason  stated  can  have  no  effect  on  the  legal 
question  involved  in  the  transaction.  As  an 
acknowledgment  of  the  debt  the  tender  must 
be  given  the  same  effect  as  if  payment  had 
been  accepted  by  the  creditor. 

Counsel  for  appellants  relies  upon  Huff  v. 
Richardson,  19  Pa.  S88,  as  authority  for 
their  contention  that  an  unaccepted  tender 
is  not  sufficient  acknowledgment  of  the  debt 
to  toll  the  statute.  In  that  case  the  decision 
was  based  on  an  Insufficient  acknowledgment 
of  the  amount  of  the  balance  due,  in  that  the 
promise  to  pay  the  balance  was  without  basis 
from  which  the  amount  of  the  debt  was  as- 
certainable.   True  the  court  stated  (page  390) : 

"Equally  vague  and  unsatisfactory  was  the 
evidence  of  acknowledgment  derived  from  the  de- 
fendant's offering  the  plaintiff  a  horse  on  ac- 
count, which  did  not  suit  the  plaintiff.  Part 
payment  of  a  debt  is  acknowled^ent ;  but  the 
offer  of  a  horse,  not  accepted,  is  not." 

This  language  does  not  necessarily  indicate 
that  an  offer  to  pay  a  debt  In  part,  whether 
in  cash  or  in  property,  is  not  a  sufficient  ac- 
knowledgment of  the  Indebtedness.  It  mere- 
ly slgulfles  that  an  offer  of  property,  not  ac- 
cepted, is  not  a  valid  tender,  and  is  consist- 
ent with  the  general  rule  of  law  that  pay- 
ment on  a  contract  cannot  be  made  other 
than  in  money,  unless  the  creditor  coiksents 
thereto  or  aoquiesces  therein.  80  Cyc.  1187. 
In  the  case  cited,  inatmd  of  there  being  a 
consent  to  the  tender  of  payment,  the  cred- 
itor expressly  dissented,  stating,  "The  horse 
did  not  suit  him."  It  la,  therefore,  not  fw- 
thority  for  the  proposition  that  a  legal  ten- 
der of  cash  on  account  of  a  recognized  daim 
is  insufficient,  under  any  circumstances,  to 
show  such  acknowledgment  of  the  existence 
of  the  debt  as  will  toll  the  statuta 

The  Judgment  is  affirmed. 


(Kg  Pa.  57) 

BURGESS     AND     TOWN     COUNCIL    OF 

CHAMBERSBURG  BOROUGH  v.  CHAM- 

BERSBURG  &  G.  ELECTRIC  KT.  CO. 

(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  STBBBT  RAXIiROADS  «=»38— DuTT  or  Stbkr 

Railboad  Comfaitt— Cask  or  Stbkkts. 
A  street  railway  oompany  is  under  the  com- 
mon-law duty  to  keep  the  portions  of  a  street 
occupied  by  its  right  of  way  in  good  oonditioa 
and  repair. 

2.  Stbbkt    Railboadb    ^sSS  —  w»»ath    or 
Strbbts— DtJTT  OP  RxFi:.ACuaBirr. 

While  a  street  railway,  under  its  oonunon- 
law  duty  to  repair  portions  of  street  occupied 
by  its  nght  of  way,  need  not  tear  up  a  sound 
pavement  of  antiquated  style  and  replace  it  with 
a  different  and  better  one,  yet  if  necessity  for 
repair  arises  after  an  improved  pavement  has 
been  laid  in  the  remainder  of  the  street  by  the 
city,  the  dty  may  require  the  company  to  re- 
place the  antiquated  pavement  with  a  new  and 
unproved  one. 

3.  Stbext  Railboaos  «=>24(10)— Fkamchise— 
oonstbuction. 

A  mnnicipal  ordinance  granting  a  city  rail- 
way the  right  to  maintain  trades  in  a  pablie 
street,  b«ng  a  grant  of  a  spedal  privilege  ia 


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'derogation  of  tbi  right  of-  the  public  to  the  ful] 
and  unobstructed  use  of  the  street,  must  be 
construed  against  the  grantee  and  in  favor  of 
the  public,  and  no  privileges  or  exemptions  will 
be  deemed  to  have  passed,  unless'  givoi  in  dear 
and  explicit  terms. 
4.  Speoifio  Pebfobmarcb  €=»74— CJontbacts 

— Enfobcement. 
A  court  of  equity  may  decree  specific  per- 
formance of  a  contract  between  a  street  railway 
company  and  a  municipality,  whereby  the  com- 
I>any  was  to  keen  a  portion  of  the  streets  oc- 
cupied by  its  rignt  of  way  in  proper  repair. 
6.  SPKCinO     PEETOBMANClt     €=»74  —  Paviro 

STBEETS— PERFOBMANClt   OF    CONTBACT. 

An  ordinance  granting  the  defendant  street 
railway  company  the  right  to  use  the  streets 
as  a  right  of  way  provided  that  it  should  be  re- 
quired at  the  time  of  the  construction  of  the 
railway  to  pave  the  streets  between  its  tracks 
and  for  a  dutance  of  24  Inches  outside  of  each 
rail  with  material  or  pavement  similar  to  that 
now  in  use  or  which  may  in  the  future  be  used 
or  adopted  by  the  municipality,  and  keep  and 
maintain  the  same  in  good  condition,  so  that 
driving  on,  off,  or  across  the  tracks  should  be 
safe.  At  the  time  of  construction  of  the  road 
the  municipality's  streets  were  macadamized, 
and  defendant  macadamized  the  streets  between 
its  tracks.  Thereafter  the  municipality  ordered 
repaving  of  certain  streets  with  vitrified  brick, 
and  defendant  thereupon  paved  its  portion  of 
such  streets  with  the  same  materiaL  Subse- 
qnently  the  municipality  ordered  the  paving  of 
other  Btreeta  with  vitrified  brick,  and  notified 
defendant  to  pave  its  portion.  Defendant  re- 
fused, on  account  of  its  financial  condition. 
Held  that,  as  the  streets  were  in  need  of  con- 
struction and  repair,  specific  performance  of  the 
contract  was  properly  directed. 

Appeal  from  Court  of  CommoD  Pleas, 
BVanklln  County. 

Suit  by  the  Burgess  and  Town  Council  of 
tbe  Borough  of  Chambersburg  against  the 
Chambersborg  &  Gettysburg  Electric  Rail- 
way Company.  From  a  decree  directing 
spedflc  performance  of  a  contract,  the  de- 
fendant apiieals.    Affirmed.  

Argued  before  MESTREZAT,  POTTER, 
HOSCHZISKER,  FRAZEB,  and  WAL- 
I/IN6,  JJ. 

Walter  K.  Sharpe,  O.  G.  Bowers,  and  Irvin 
G.  Elder,  all  of  Oiambersburg,  for  appellant 
Charles  Walter,  Borough  SoL,  and  Arthur  W. 
<3illan,  both  of  Chambersburg,  for  appellee. 

FBAZKR,  J.  Defendant  appeals  from  a  de- 
cree of'  the  court  of  common  picas,  directing 
specific  perfonnance  of  a  contract  by  It  to 
pave  certain  streets  In  the  borough  of  Cbam- 
IieTBbnrg,  between  and  adjoining  its  tracks, 
with  material  similar  to  that  used  by  the 
borough  In  paving  the  remainder  of  the  high- 
vray.  Q^e  validity  of  the  decree  depends 
upon  the  construction  of  section  3  of  an  ordi- 
nance of  the  municipality,  adopted  June  23, 
1902,  granting  to  defendant  the  right  to  con* 
Btmct  and  operate  a  street  railway  upon  a 
number  of  the  streets  of  the  borough,  subject 
to  the  conditlcws  anid  restrlctlona  therein 
mentioned.  The  section  referred  to  iMX>vlde8, 
inter  alia,  that : 

"The  said  company  shall  be  required,  at  the 
time  of  construction  of  said  railway,  between 


Its  trades  and  for  a  distance  of  twen^-fenr 
inches  outside  of  each  rail,  to  pave  with  material 
or  pavements  similar  to  that  now  in  use,  or 
which  may  in  the  future  be  used  or  adopted  by 
said  borough,  and  keep  and  maintain  toe  same 
in  good  condition,  so  that  driving  on,  off  or 
across  said  track  or  tracks  shall  l>e  safe  and 
not  inconvenient,  and  be  constructed  so  as  not 
to  impede  traveL" 

Section  17  of  the  ordinance  provides  that: 
In  case  of  violation  of  any  of  its  provisions 
by  the  street  railway  company  "the  borough  re- 
serves the  right  to  terminate  and  cease  all  rights 
and  privileges  granted." 

Hie  facts  are  not  In  dlsimte.  They  were 
found  by  the  conrt  below,  and  were  not  ex- 
cepted to.  At  the  time  defendant  constructed 
its  road,  the  streets  of  the  borough  were  ma- 
cadamised; and  defendant  accordingly  ma- 
cadamized the  space  between  and  along  its 
tracks,  and  maintained  that  part  in  substan- 
tially the  same  condition  as  the  borough 
maintained  the  remaining  portion  of  the 
street  In  1913  an  ordinance  was  adopted 
providing  for  the  repaving,  with  rltrlfled 
brick,  of  certain  streets  of  the  borough,  in- 
cluding several  on  which  defendant's  tracks 
were  laid,  whereupon  defendant  proceeded  to 
repave  its  portion  of  each  street  with  the 
same  material,  in  accordance  with  plaintiff's 
construction  of  section  3  of  the  ordinance  of 
1902.  In  1916  a  second  ordinance  was  adopt- 
ed, providing  for  the  paving  of  other  streets 
with  vitrified  brick,  which  streets  the  court 
finds  were  "in  need  of  reconstruction  and 
repair."  Defendant  however,  on  receiving 
notice  to  pave  its  portion  of  the  highways 
to  be  improved,  addressed  a  letter  to  the 
borough  council,  stating  Its  inability  to  com- 
ply with  the  provisions  of  the  ordinance,  ow- 
ing to  "the  present  financial  condition"  of 
the  company.  The  borough  thereupon  insti- 
tuted the  present  proceeding  in  equity,  ask- 
ing that  defendant  be  required  to  pave  be- 
tween and  along  its  tracks,  In  accordance 
with  the  provlsioDS  of  the  ordinance  granting 
it  the  right  to  use  the  streets  of  the  munici- 
pality. Defendant  contends  that,  having  par- 
ed Its  part  of  the  street  with  the  kind  of 
material  then  used  by  the  borough  at  the 
time  its  tracks  were  laid,  and  having  main- 
tained such  paving  in  good  condition,  Its 
whole  duty  in  the  matter  was  performed,  and 
no  further  obligation  rests  upon  it  to  repave 
with  a  different  material. 

[1, 2]  Aside  from  the  question  of  c(»itrao- 
tual  obligation,  'defendant  was  under  a  com- 
mon-law  duty  to  keep  the  portions  of  the 
street  occupied  by  its  right  of  way  in  good 
condition  and  repair.  Reading  v.  United 
Traction  Co.,  202  Pa.  571,  52  Atl.  106;  Bead- 
ing V.  United  TracUon  Co.,  215  Pa.  250,  64 
Atl.  446,  7  Ann.  Cas.  380.  In  the  former 
case  it  la  held  the  railway  company's  duty 
to  repair  tavolves  something  more  than  the 
mere  preservation  of  the  condition  in  which 
the  street  was  found  when  first  occupied  by 
It    In  that  case  the  conrt  below,  in  an  opin- 


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101  ATLANTIC  REPOBTEB 


(Fk. 


ion  adopted  by  this  eonrt.  In  quoting  from 
Philadelphia  v.  Thirteenth  &  Fifteenth  Sts. 
Pass.  Ey.  Ca  of  Phlla'delphla,  160  Pa.  269, 
33  AtL  126,  said  (202  Pa.  574,  52  Atl.  106): 

"The  duty  to  repair,  where  it  exists,  extends 
to  the  replacement  of  an  old  pavement  by  a  new 
one  of  a  different  and  improved  kind.  •  •  * 
The  company  la  bound  to  keep  pace  with  the 
progress  of  the  age  in  which  it  continues  to  ex- 
ercise its  corporate  functions." 

And  further,  referring  to  Elliott  on  Roads 
and  Streets,  pp.  594,  595 : 

"The  doctrine  is  laid  down  as  the  one  dedud- 
ble  from  the  authorities,  that  a  railway  com- 
pany, in  respect  to  the  condition  of  its  right  of 
way  upon  the  streets  of  a  city,  is  bound  to  re- 
pair but  not  to  improve,  but  that  the  duty  of 
making  repairs  requires  them  to  be  made  in 
such  manner  and  with  such  materials  as  will 
correspond  with  the  general  condition  of  the 
street  at  the  time  the  repairs  are  needed;  so 
that,  whilst  the  company  is  not  compellable  to 
tear  up  a  sound  pavement  of  antiquated  style 
and  replace  it  with  a  different  and  better  one, 
yet  if  a  necessity  for  repairing  the  pavement 
within  the  right  of  way  arises  after  an  improved 
pavement  has  been  laid  in  the  remainder  of  the 
street  by  the  city,  the  latter  may  require  the 
company  reasonably  to  confirm  [conform]  with 
such  improved  pavement.  And  it  is  pertinently 
observed  [202  Pa.  at  p.  574,  52  AU.  106]:  'If 
it  be  true  that  the  company  is  not  bound  under 
the  continuing  duty  to  make  repairs  to  corre- 
spond with  the  improved  or  changed  condition 
of  the  street,  then  the  practical  result  would  be 
that  it  would  be  entirely  released  from  its  duty, 
since  it  is  quite  clear  that  repairs  of  any  other 
character  would  be  without  value  or  service  to 
the  public.'" 

The  common-law  duty  on  the  part  of  street 
railways  Is  referred  to  because  of  Its  bearing 
on  the  intention  of  the  parties  in  their  deal- 
ings with  each  other  in  the  present  case. 
The  arjfuraent  of  defendant  that  it  is  bound 
to  keep  in  repair  only  macadam  pavement, 
regardless  of  the  character  of  the  remainder 
of  the  street,  practically  amounts  to  a  con- 
tention that  the  company's  liability  Is  limit- 
ed to  an  extent  less  than  its  common-law 
duty,  and  that  no  higher  obligation  than  that 
claimed  Is  Imposed  upon  It  by  the  ordinance 
In  question.  The  word  "future,"  as  used  In 
the  ordinance.  Is  unlimited  as  to  time,  unless 
the  natural  meaning  of  the  word  is  restrict- 
ed by  other  provisions  of  the  ordinance.  Al- 
though the  words  "at  the  time  of  construc- 
tion of  said  railway"  may  tend  to  Indicate 
a  limitation  of  the  word  "future,"  yet  to  so 
confine  Its  meaning  practically  disregards 
the  clause  concerning  the  similarity  of  pave- 
ment "which  may  In  the  future  be  used  or 
adopted."  The  words  requiring  paving  "at 
the  time  of  oonstmctlon"  of  the  railway  are 
not  rendered  nugatory  by  giving  the  word 
"future"  Its  natural  meaning,  as  they  may 
readily  be  construed  as  a  wise  precaution  to 
prevent  the  company  from  delaying  Its  part 
of  the  work,  so  important  to  the  public,  for 
an  unreasonable  time  beyond  the  period  al- 
lowed for  construction  of  the  road,  and  thus 
render  "driving  on,  oft  or  across  said  tracks" 
inconvenient  and  unsafe.  The  ordinance  re- 
quired the  entire  work  to  be  complete  and  in 
operation  within  ei^ht  months  from  date  of 


defendant's  'acc^>tanoe  of  Its  provisions  In 
writing,  which  was  to  be  made  within  ten 
days  from  its  passage.  It  is  not  reasonable 
to  suppose  a  provision  requiring  the  company 
to  pave  with  material  similar  to  that  which 
may  in  the  future  be  used  or  accepted  by 
the  borough  was  Inserted  merely  for  the  pur- 
pose of  covering  possible  changes  in  the  short 
time  elapsing  between  the  date  of  the  passage 
of  the  ordinance  and  the  actual  coiistructl<m 
of  the  work. 

As  a  further  Indication  of  the  Intent  of  the 
borough  in  granting  the  franchise,  section  15 
of  the  ordinance  provides  that: 

"Nothing  contained  in  this  ordinance  shall  bo 
taken  or  construed  to  limit  or  restrict  the  bor- 
ough of  Chambersbui^  in  making  and  enforcing 
in  the  future  any  additional  regulations,  respect- 
ing the  construction,  maintenance  or  operation 
of  the  said  companv  s  raUway  within  the  limits 
of  the  said  borough,  and  the  said  liorough  re- 
serves the  right  to  require,  by  ordinance  or  reso- 
lution of  its  council,  the  adoption  and  enforce- 
ment of  such  regulations,  at  any  time_  hereafter, 
and  removing  and  replacing  of  the  rails,  tracks, 
ties,  poles,  cables,  wires  or  other  appliances,  at 
any  time  located  or  erected  by  the  said  com- 
pany, within  the  said  borough,  whenever,  within 
the  judgment  of  said  council,  the  public  inter- 
ests shall  require  it." 

[S-6]  The  ordinance  In  question  Is  a  grant 
of  a  special  privilege  affecting  the  general 
public  Interests,  and  In  derogation  of  the 
right  of  the  public  to  the  full  and  unobstruct- 
ed use  of  the  streets.  Its  provisions  must 
therefore  be  construed  strictly  against  the 
grantee  and  liberally  in  favor  of  the  public, 
and  no  privileges  or  exemptions  will  be  deem- 
ed to  have  passed  unless  given  in  clear  and 
explicit  terms.  19  Cya  1459;  28  Cyc.  883. 
Tested  by  these  principles,  the  conclusion 
reached  by  the  court  below  Is  correct  The 
ordinance  contemplated  the  use  or  adoption 
of  a  different  method  of  paving,  consistent 
with  the  growth  of  the  munldpnllty.  and  the 
need  Incident  to  Increased  traffic  In  the  fu- 
ture generally,  and  did  not  limit  that  term 
to  the  period  fixed  for  completing  the  work. 

This  construction  of  the  contract  Is  farth» 
supported  by  the  acts  of  the  parties.  Under 
the  earlier  ordinance,  defendant,  pursuant  to 
notice  from  the  borough  repaved  the  portion 
of  the  street  within  Its  control  and  supervi- 
sion. With  the  contract  and  this  constmo- 
tlon  of  its  provisions  before  them,  the  ordi- 
nance of  1916  was  passed,  and,  upoa  defend- 
ant receiving  notice  to  repave  under  the  later 
ordinance.  It  declined  to  comply  vrlth  the  re- 
quest solely  on  the  ground  of  Its  "present 
financial  condition."  While  d^endant  at 
this  time  offers  an  excuse  for  not  having  de- 
sired to  enter  into  a  controversy  with  the 
borough  at  the  time  the  earlier  ordinance  was 
adopted,  the  weight  to  be  given  such  reason 
was  properly  for  the  consideration  of  the 
court  below.  We  see  no  valid  reason  for 
changing  the  conclusion  readied  in  the  conrt 
below. 

The  Jurisdiction  of  the  court  to  spedflcally 
enforce  a  contract  of  this  kind,  in  lieu  of 
leaving  the  borough  to  its  remedy  by  doing 


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Pa.)  PENNSYLVANIA  CENTRAIi  BRBWINa  C!0.  t.  ANTHRACITE  B.  <X). 


925 


the  work  and  suing  at  law  for  the  cost.  Is 
amply  supported  by  the  case  of  Patton  Town- 
ship V.  Monongahela  St  Ry.  Co.,  226  Pa.  872. 
76  Aa  B8». 
The  decree  of  the  lower  conrt  Is  affirmed. 


(2S8  Pa   46) 

PENNSYLVANIA     CENTRAL     BREWING 
CO.  ▼.  ANTHRACITE  BEER  CO. 

(Supreme  Court  of  Pennsylvania.    May  7, 
1917.) 

1.  Tbadx-Mabks  and  Tbade-Namts  «=a6&— 
Unfaib  Competition. 

Where  defendant's  conduct  Is  calculated  to 
pass  off  his  goods  as  those  of  another,  he  is 
guilty  of  actionable  unfair  competition,  and  his 
freedom  from  &audalent  intent  is  no  defense. 

2.  Tkadk-Marks  and  Tbadb-Nameb  18=968— 
Unfaib  Competition. 

A  dealer,  coming  into  a  field  already  occu- 

Sied  by  a  rival  of  established  reputation,  mast 
o  nothing  which  will  unnecessarily  create  or  in- 
crease confusion  between  his  goods  and  those 
of  bis  rival. 

8.  TaADE-MARKS  AND  Tbade-Names  «=»75  — 
Unfaib  Competition  —  What  Constitutes. 
Regardless  of  trade-mark,  a  manufacturer 
has  no  right  to  so  dress  his  goods  as  to  deceive 
purchasers  or  dealers  into  the  belief  that  they 
are  the  goods  of  another. 
4.  Tbade-Marks  and  Tbade-Names  €=995(4) 
— Unfair  Competition— Injunction. 
Plaintiff,  whose  brewing  business  had  been 
established  for  40  years,  distinctively  marked 
its  beer  containers  by  a  red  band  at  one  end  and 
a  blue  band  at  the  other,  while  chimes  and  a 
ring  adjoining  on  each  end  were  also  painted  in 
colors  like  the  band.  E>efendant,  who  had  been 
engaged  in  the  manufacture  and  sale  of  beer  in 
a  small  way  for  15  years,  and  bad  previously 
marked  its  barrels  with  yellow  bands,  repainted 
its  containers  in  all  respects  practically  like 
the  containers  of  plaintiff,  so  that  the  casual  ob- 
server would  mistake  the  one  for  the  other.  As 
a  result,  plaintiff  was  caused  inconvenience  and 
delay  in  collecting  its  kegs,  and  plaintiffs  cus- 
tomers, who  could  not  read  English,  were  unable 
to  distinguish  plaintiff's  containers  from  those 
of  defendant  Held  that,  though  defendant  dis- 
claimed any  fraudulent  intent  in  repainting  its 
harrels  like  plaintiff's,  and  alleged  that  it  did  so 
because  its  customers  objected  to  yellow,  and  it 
had  a  quantity  of  red  paint  in  stock,  defendant 
was  properly  enjoined  from  continuing  to  paint 
its  containers  in  such  a  manner  as  to  deceive 
plaintiffs  trade. 

Appeal  from  Court  of  Common  Pleas, 
Lackawanna  County. 

Suit  by  the  Pennsylvania  Central  Brew- 
ing Company  against  the  Anthracite  Beer 
Company.  From  a  decree  awarding  an  In- 
junction,  defendant   appeals.     Affirmed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZSSt,  and  WAL- 
LING, JJ. 

R.  W.  Archbald,  John  B.  Jordan,  and  Da- 
vid J.  Reedy,  all  of  Scranton,  for  appellant. 
M.  J.  Martin  and  H.  A.  Knapp,  both  of 
Scranton,  for  appellee. 

WALLING,  J.  The  bill  was  filed  to  re- 
strain alleged  unfair  trade  competition.  The 
E.  Robinson's  Sons  Brewery,  for  the  manu- 


facture of  lager  beer,  was  established  at 
Scranton  in  1870,  and  has  continued  in  the 
business  to  this  time.  In  1897  it  became,  and 
since  has  been,  a  branch  of  the  plaintiff 
corporation.  Its  product  has  always  been 
sold  in  containers,  to  wit,  barrels  and  kegs, 
of  the  customary '  sizes,  which  for  over  40 
years  Iiave  been  distinctively  marked  by  a 
red  band  painted  around  each  container  be- 
tween the  first  and  second  hoops  at  one 
end  and  a  blue  band  similarly  painted  at  the 
other.  The  chimes  and  a  ring  adjoining  on 
each  end  were  also  painted  in  colors  like  the 
bands.  For  many  years  the  Robinson  brew- 
ery has  done  and  is  doing  an  increasing 
business  In  Lackawanna  county,  where  its 
beer  is  regarded  as  of  a  superior  quality 
and  is  largely  known  among  dealers  and 
consumers  by  the  marking  on  the  barrels 
and  kegs  as  above  mentioned.  There  are 
many  other  breweries  In  the  county,  each 
of  which  has  its  containers  marked  by  bands, 
rings,  etc.,  painted  thereon,  but  as  a  rule  not 
so  as  to  conflict  with  the  markings  used  by 
any  other  brewery.  In  all  cases  the  name 
of  the  owner  is  branded  on  the  beads  of  the 
barrels  and  kegs. 

The  Anthracite  Beer  Company,  defendant, 
is  also  located  la  the  same  county,  where  it 
has  been  engaged  in  the  manufacture  and 
sale  of  beer  In  a  comparatively  small  way 
for  over  15  years.  Prior  to  the  summer  of 
1910  its  containers  were  marked  by  painted 
bands,  etc.,  in  which  yellow  was  a  prominent 
color;  but  then  its  barrels  and  kegs  were 
repainted,  in  color,  form,  and  manner.  In  all 
respects  practically  like  those  of  the  plain- 
tiff, so  that  the  casual  observer  would  mis- 
take the  one  for  the  other.  As  both  parties 
were  doing  business  in  the  same  locality  and, 
in  many  instances,  with  the  same  retail 
dealers,  it  at  once  resulted  in  confusion  from 
which  plaintiff  suffered  inconvenience  and 
damage.  While  the  beer  of  each  was  large- 
ly sold  on  credit,  it  was  sometimes  sold  for 
cash,  when  the  similarity  of  markings  would 
naturally  cause  plaintiff  damage  because  of 
its  larger  business  and  the  greater  reputa- 
tion of  its  product  It  caused  inconvenience 
to  retail  dealers,  who  handled  both,  because 
of  the  liability  to  tap  the  wrong  keg  in  the 
dimly  lifted  cellars.  It  caused  trouble  and 
delay  to  plaintiff  in  the  collection  of  its 
empty  kegs  in  such  cellars  and  elsewhere. 
It  caused  dissatisfaction  to  consumers,  es- 
pecially those  unable  to  read  English,  and 
who  recognized  plaintiff's  product  by  the 
markings  on  the  kegs.  Prior  to  the  defend- 
ant's change  of  markings  In  1916,  no  beer 
kegs  in  that  county  bad  been  marked  like 
plaintiff's,  except  the  Bartels  Company,  do- 
ing an  inconsiderable  business,  had  used  the 
red  and  blue  bands,  but  without  the  end 
markings.  Defendant's  officers,  while  per- 
sisting in  such  imitation  and  Insisting  on  the 
right  to  continue  the  same,  disclaimed  any 


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iOl  ATIiANTIC  REPOETBa 


(Pa. 


fraudulent  Intent  and  gave  as  reasons  for 
adopting  colors,  etc^  similar  to  those  of 
plaintiff,  that  they  had  the  red  paint  In 
stock,  that  blue  was  a  more  staple  color 
than  yellow,  and  that  there  was  some  senti- 
raental  prejudice  among  certain  customers 
against  the  last  named  color ;  also  that  their 
red  and  blue  were  of  a  shade  different  from 
plaintltTs.  The  reasons,  however,  are  not 
convincing.  The  court  below  found  the  facta 
in  favor  of  plaintiff,  and  enj(rined  defendant 
from  such  Imitation,  from  which  we  have 
this  appeaL 

[1-4]  In  our  opinion  the  principle  here  in- 
volved Is  one  of  unfair  trade  competition. 
As  the  result  of  40  years'  business  plaintiff's 
product  was  so  well  known  and  highly  re- 
garded as  to  be  In  general  demand,  and  rec- 
ognized in  part  by  the  distinctively  marked 
containers.  In  the  minds  of  many  custom- 
ers, the  peculiarly  marked  kegs  of  red  and 
blue  naturally  suggested  the  Robinson  beer, 
and  the  use  of  kegs  so  marked  by  defend- 
ant, whose  product  was  comparatively  un- 
known, naturally  woAed  to  its  advantage 
and  to  plaintiff's  loss.  It  Is  not  a  case  of  a 
trade-mark,  technically  so  called,  but  of  un- 
fair competition.  In  which  defendant,  by  Im- 
itating plaintiff's  cmitalners,  secures  to  some 
extent  the  benefit  of  the  high  standing  of 
plaintifTs  product  The  similarity  of  the 
containers  is  such  as  to  naturally  cause  some 
customers  to  buy  the  Anthracite  beer  under 
the  belief  that  they  were  getting  the  Robin- 
eon  beer;  and  also  to  enable  retailers,  who 
handle  both,  to  substitute  the  one  for  the 
other.  True,  the  evidence  shows  that  as  a 
general  rule  the  kegs  are  kept  In  the  retail- 
er's cellar,  where  they  are  not  seen  by  the 
customer  at  the  time  of  his  purchase;  never- 
theless it  affords  some  opportunity  for  de- 
ception. The  Imitation  here  would  seem  to 
be  likely  to  deceive  the  ordinary  customer, 
and.  If  so.  It  should  b«>  enjoined.  Heinz  v. 
Lutss.  14«  Pa.  592,  23  Atl.  814;  Juan  F.  Portn- 
ondo  Cigar  Manufacturing  Co.  v.  Vicente 
Portuondo  Cigar  Manufacturing  Co.,  222  Pa. 
116,  70  Atl.  068.  It  need  not  be  a  literal 
copy.  "The  test  is  whether  the  label  or  mark 
is  calculated  to  deceive  the  public,  and  lead 
them  to  suppose  they  are  purchasing  an  ar- 
ticle manufactured  by  a  person  other  than 
the  one  offering  it  for  sale."  Scranton  Stove 
Works  v.  Clark  et  al.,  255  Pa.  23,  99  Atl. 
170.  See,  also,  Pratt's  Appeal,  117  Pa.  401, 
11  Atl.  878,  2  Am.  St  Rep.  676.  "And  It 
may  be  stated  broadly  that  any  conduct, 
the  natural  and  probable  tendency  and  effect 
of  which  Is  to  deceive  the  public,  so  as  to 
pass  off  the  goods  or  business  of  one  person 
as  and  for  that  of  another,  constitutes  action- 
able unfair  competition."  38  Cyc.  756.  If 
the  effect  be  to  injure  plaintiff,  the  fact  that 
defendant  bad  no  fraudulent  Intent  Is  no 
defense.  Suburban  Press  V.  Philadelphia 
Suburban  Publishing  Co.,  227  Pa.  148,  75  Atl. 


1037;  Amer.  Clay  Mfg.  Co.  v.  Amer.  Clay 
Mfg.  Co.  of  N.  J.,  108  Pa,  189,  47  AtL  936; 
RT.FralmixtckCo.v.  Shlmer,  43  Pa.  Super. 
Ct.  221.  "A  dealer,  coming  Into  a  field  al- 
ready occupied  by  a  rival  of  established 
reputation,  must  do  nothing  which  will  un- 
necessarily create  or  Increase  confusion  be- 
tween his  goods  or  business  and  the  goods 
or  business  of  his  rival."  38  Cyc.  794.  Ir- 
respective of  the  question  of  trade-mark,  a 
manufacturer  has  no  right  to  inclose  his 
product  In  packages  so  like  those  of  a  rival 
mannfiactarer  as  to  decdve  a  purchaser,  or 
to  enable  a  dealer  to  do  so.  See  Holeproof 
Hosiery  Co.  v.  Wallach  Brothers  (0.  C.)  167 
Fed.  373;  New  England  Awl  &  Needle  Ca  v. 
Marlborough  Awl  &  Needle  Co.,  168  Mass. 
164,  46  N.  E.  386,  60  Am.  St  Rep.  377;  Coats 
V.  Merrick  Thread  Co.,  149  U.  S.  562,  13 
Sup.  Ct.  966,  37  L.  Ed.  847;  Anheuser-Busch 
Brewing  Ass'n  v.  Clarke  (C.  C.)  28  Fed.  410. 

In  view  of  the  authorities  above  referred 
to,  and  many  more  of  like  Import  we  are 
clearly  satisfied  that  this  case  was  rightly 
decided  by  the  court  below.  It  was  not  nec- 
essary for  defendant  to  Imitate  plalntUTs 
containers;  and  the  fact  that  the  Bartles 
Company,  which  did  a  nominal  business  in 
the  territory,  had  red  and  blue  bands  on  Its 
kegs,  was  no  Justification  for  defendant 
The  painUng  on  plaintiff's  containers,  when 
considered  In  Its  entirety,  constituted  sach 
a  distinctive  marking  aa  defendant  had  no 
right  to  Imitate. 

The  assignments  of  error  are  overruled, 
and  the  decree  Is  afllrmed,  at  the  cost  of  ap- 
pellant 


(KB  Ps.  98) 
WEINSCHBNK  v.  PHILADELPHIA  HOMI>- 

MADE  BREAD  CO. 
(Supreme  Court  of  Pennsylvania.    May  7,  1917.) 

1.  Masteb  and  Sebvant  ^=278(12)— Acnow 
FOB  Injuby  —  Unquaxdkd  BJucvatob— Sny- 
FiciENCY  OF  Evidence. 

,  .^".  JS"  action  for  damages  for  the  death  of 
plaintiflTs  husband,  killed  by  fan  down  an  ele- 
vator shaft  in  the  bakery  where  he  was  em- 
ployed,  brought  on  the  ground  of  an  unsafe 
condition  of  the  premises  at  the  time  of  the  ac- 
cident, evidence  held  to  sustain  a  verdict  for 
plaintiff. 

2.  Mastise  and  Sebvant  «=>288(2)— PKBSOifiX 
iNJUwr— AsstnipnoN  of  Risk. 

If  the  employer  was  negligent  in  permittiiiK 
an  unsafe  condition  of  the  premises,  it  could 
not  be  said  as  a  matter  of  law  that  the  employs 
assumed  the  risks  thereof,  where  the  condition 
was  constantly  subject  to  change,  and  where 
the  danger,  though  always  present  was  not  al- 
ways imminent 

8.  Mastbb  and  Sbbvant  «=>270(3)— Aonow 
fob  Injuby— Evidbnob— Obdinawce. 

In  such  case,  the  admission  of  an  ordinance 
regulating  or  relating  to  the  maintenance  of 
freight  elevators,  offered,  not  to  take  away  aoy 
defense,  but  merely  to  prove  negligence,  was  not 
error,  where  the  trial  court  instructed  that  proot 
of  the  violation  of  such  ordinance  was  not  proof 
of  the  negligence  charged,  and  that  it  should 
be  considered  merely  as  evidence  tending  to 
show  defendant's  negligence. 


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WSnrSOHENK  T.  PHILAIXBZiFHIA  H!0MX>>1CADE  BREAD  CO. 


MT 


*.  ilLunta  ARS  BxBVAirr  «=9258(11)— Aonost 

,  FOB    InjUBT  —  NBOUaENCE— FUSADDrO   JlND 

PBOor. 
In  mich  c&se,  where  the  negligence  relied 
npon  was  not  the  maintenance  of  an  improper 
and  unsafe  instrument,  but  the  unaafe  condi- 
tion of  the  premises  at  the  time  of  the  accident, 
it  was  not  necessary  for  plaintiff  to  plead  or 
proTe  that  the  elevator  was  more  dangerous  than 
tlioae  of  the  kind  generally  used. 

6.  Death  «=»g0(4)— Excessiyb  DAiCAaxs. 

A  verdict  of  $5,616  for  the  death  of  a  bakery 
enaploy^,  45  years  of  age  and  in  good  health,  and 
who  left  a  widow  and  aix  children,  was  not  ez- 
cessiTe. 

Appeal  from  Court  of  Common  Pleas, 
Pblladelplila  County. 

Trespass  by  Sophie  K.  Weinscbenk  against 
the  Philadelphia  Home-Made  Bread  Compa- 
ny to  recover  damages  for  tbe  deatb  of  her 
busband.  Verdict  for  plaintiff  for  $5,616, 
and  judgment  tbereon,  and  defendant  ap- 
peals.   Affirmed. 

Argued  before  BROWN,  O.  J.,  and  STEW- 
ART, MOSCHZISKEB,  FRAZBR,  and  WAI/- 
UNO,  JJ. 

William  H.  Peace,  of  Pbiladelpbia,  for  ap- 
pellant Ruby  B.  Vale  and  J.  Edgar  Wil- 
kinson, both  of  Pbiladepbia,  for  appellee. 

MOSCHZISKER,  J.  The  plalntllTs  hus- 
band died  as  a  result  of  Injuries  received 
while  engaged  In  the  service  of  the  defend- 
ant company;  the  wife  sued,  alleging  negli- 
gence, and  recovered  a  verdict  upon  which 
judgment  was  entered.  The  defendant  has 
ajqpealed. 

[1]  Frank  P.  Weinscbenk  was  employed  as 
a  dough  mixer  in  defendant's  bread  bakery, 
where  he  had  worked  for  about  eight  years 
prior  to  January  22,  1912,  the  date  of  the 
accident  which  caused  his  death;  his  duties 
were  performed  at  night,  and  tbe  fatality 
occurred  between  4:80  and  S  a.  m. ;  the  room 
-wherein  he  labored  is  a  large  apartment  on 
the  second  floor  of  bis  employer's  establish- 
ment, about  80  feet  l<mg  and  46  feet  wide; 
a  freight  elevator,  which  ran  from  the  first 
to  the  third  story,  was  located  In  the  north- 
-west  comer  of  tbte  room;  <»  the  floor  In 
question,  the  elevator  shaft  was  solidly  in- 
closed on  three  sides,  and  it  could  be  entered 
only  when  approaching  from  tbe  east;  on 
the  latter  side  were  two  gates,  one  a  solid 
wooden  structure,  extending  from  floor  to 
ceiling,  operated  on  rollers,  which,  when 
pushed  aside  by  band,  exposed  a  slat  gate, 
or  guard,  about  five  feet  high,  that  moved 
vertically  by  pulleys  and  weights,  and  which, 
at  the  time  of  the  accident,  also  bad  to  be 
operated  by  hand;  on  tbe  third  floor  a  like 
guard  worked  automatically,  so  that,  when 
tbe  elevator  either  ascended  or  descended, 
this  gate  became  locked  in  place,  effectually 
barring  an  entrance  into  the  shaft;  original- 
ly the  gate  on  the  second  floor  was  operated 
In  the  same  manner,  but  It  had  become  out 
of  order  to  such  an  extent  that  It  could  be 


worked  only  by  hand ;  it  remained  In  Oiis  de- 
fective  condition  for  at  least  one  year  prior 
to  January  22,  1912,  and  possibly  longer,  al- 
though, "a  couple  of  months  before  the  acci- 
dent," the  president  of  the  defendant  0001- 
pany  had  been  notified  by  an  employe  tbat^ 
if  tbe  defect  were  not  remedied,  somebody 
would  probably  fall  down  the  shaft;  "right 
after  tbe  accident"  this  gate  was  found  upr 
and  "tbe  floor  dose  to  the  elevator"  wa» 
then  seen  to  be  "smeary"  and  "slippery"; 
there  was  also  other  testimony  to  tbe  ef- 
fect that  this  floor  was  often  in  a  "very  slip- 
pery"  condition,  "especially  around  the  ele- 
vator"; tbe  plaintiff's  busband  was  obliged 
to  use  the  elevator  from  time  to  time,  in  tbe 
course  of  his  usual  employment;  he  worked 
at  a  dough-mixing  machine,  located  on  the 
north  side  of  this  second-floor  room,  about  40' 
feet  east  of  tbe  shaft,  with  a  post  between 
him  and  It;  the  room  was  Illuminated  by 
gaslights,  with  "ordinary  plain  little  burn- 
ers," one  being  on  this  post,  but  on  the  side- 
farthest  from  tbe  shaft;  two  other  lights- 
were  In  front  and  one  in  the  rear  of  the  mix- 
ing machine ;  tbe  testlm(xiy  seems  to  indicate- 
additional  gas  burners  on  the  second  floor, 
but,  so  far  as  we  can  understand  tbe  situa- 
tion, these  Were  located  on  the  south  side  of 
the  shaft,   and  ordinarily  were  not  used; 
there  was  no  artificial  light  in  the  shaft  it- 
self, and,  while  tbe  plaintiff  probably  had 
sufficient  light  to  observe  the  location  of  thi» 
inclosure,  yet  the  strong  indications  are  that, 
at  nighttime,  under  tbe  surrounding  condi- 
tions, a  person  on  the  second  floor  would 
have  difficulty  in  seeing  whether  or  not  the- 
car,  which  was  Just  an  ordinary  platform 
without  sides,  was  actually  In  place ;  the  ele- 
vator bad  no  special  attendant,  and  was  op- 
erated from  time  to  time  by  any  one  wb» 
had  occasion  to  use  It;  on  the  evening  prlor- 
to  his  injury,  plaintiff's  husband,  who  was 
then  a  man  In  good  health,  about  45  years 
of  age,  left  home  In  a  "happy  and  Jolly" 
state  of  mind;  be  went  to  bis  customary- 
place  of  employment,  and  was  there'  last  seen 
just  before  the  accident;  16  minutes  later 
be  was  found  in  an  unconscious  condition, 
lying  on  the  elevator  platform,  which  was 
then  at  the  level  of  tbe  first  floor;  his  skull 
was  crushed,  and  he  was  otherwise  badly 
Injured;  beside  him  was  a  can  of  milk  and 
a  box  of  yeast,  tbe  latter  of  which  he  may 
have  been  carrying;  he  was  taken  to  a  boe- 
pital,  and  two  days  thereafter  died  as  a  re- 
sult of  his  Injuries;  so  far  as  the  evidence- 
shows,  tbe  last  person  to  use  tbe  elevator 
prior  to  tbe  accident  was  one  Jacobs,  tbe 
defendant's  engineer. 

The  man  Just  referred  to  testified  for  tbe 
defendant  that  he  saw  Weinscbenk  fall  down 
the  elevator  shaft  under  circumstances 
which,  if  believed,  convicted  tbe  latter  of 
clear  contributory  negligence;  but  Thomas 
McCormick,  a  witness  called  on  behalf  of 


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plaintiff,  In  rebuttal,  testified  tliat  Jacobs, 
from  the  spot  wbere  be  was  standing,  could 
not  bave  seen  Welnsdienk  fall,  and  the  court 
below  left  the  question  of  the  credibility  of 
these  witnesses  to  the  jury,  saying  as  to  Ja- 
cobs, "If  you  believe  him,  •  •  •  your 
▼erdlct  should  be  for  the  defendant"  After 
this,  however,  the  trial  Judge  pointedly  re- 
ferred to  the  value  of  cross-examination,  and 
strongly  Intimated  that  he  entertained  a 
grave  doubt  concerning  the  veracity  of  the 
witness  In  question,  ending  his  instructions 
by  the  statement: 

"I  do  not  pass  any  opinion  ai  to  the  truth  or 
falsity  of  his  testimony;  it  is  for  you,  and 
you  only.  I  speak  of  these  matters  that  I  may 
help  you,  if  I  can,  to  reach  a  righteous  and 
proper  verdict" 

We  must  assume,  from  the  verdict  render- 
ed, that  the  Jury  did  not  give  credence  tg  the 
testimony  depended  upon  by  defendant,  but 
accepted  the  theory  of  the  plaintiff  that  the 
accident  happened  as  a  result  of  the  combin- 
ed negligence  of  the  former  and  its  engineer, 
Jacobs.  True,  according  to  this  theory,  there 
was  no  eyewitness  to  the  accident;  but  that 
situation  is  present  In  many  cases  where  ver- 
dicts for  the  plaintiff  have  been  affirmed, 
among  others  Philadelphia  &  Beading  R.  R. 
Co.  V.  Huber  et  al.,  128  Pa.  63,  18  Atl.  334.  6 
L.  R.  A.  439;  Henderson  v.  Continental  Re- 
fining Co.,  219  Pa.  384,  68  AU.  968,  123  Am. 
St  Rep.  6C8;  Milium  v.  Lehigh  &  Wilkes- 
Barre  Coal  Co.,  225  Pa.  214,  73  Att.  1106; 
Tucker  v.  Pittsburgh,  Cincinnati,  Chicago  & 
St  Louis  Ry.  Co.,  227  Pa.  66,  75  AU.  991 ; 
McManamon  v.  Hanover  Twp.,  232  Pa.  439, 
81  Atl.  440 ;  Madden  y.  Lehigh  Valley  R.  R. 
Co.,  236  Pa.  104,  84  Atl.  672;  Dannals  v.  Syl- 
vanla  Twp.,  255  Pa.  156,  90  AU.  475. 

If  Jacobs  left  the  gates  on  the  second  floor 
open,  when  he  moved  the  elevator  from  that 
level.  Just  prior  to  Welnschenk's  fall,  then 
we  have  a  case  of  the  former's  carelessness 
combined  with  the  negligence  of  defendant 
In  maintaining  a  dangerous  and  unsafe  con- 
dition at  the  point  of  the  accident ;  and  such 
a  combination  would  not  defeat  plaintiff's 
right  of  recovery.  Slever  v.  Pittsburgh,  Cin- 
cinnati, Chicago  &  St  Louis  Ry.  Co.,  252  Pa. 
1,  97  Atl.  116;  Kaiser  v.  Blaccus,  138  Pa.  332, 
22  Atl.  88;  Wallace  v.  Henderson,  211  Pa. 
142,  146,  60  AU.  574;  Deserant  v.  Cerlllos 
Coal  R.  R  Co.,  178  U.  S.  409,  420,  20  Sup.  Ct 
967,  44  L.  Ed.  1127. 

[2]  Moreover,  if  defendant  was  negligent 
In  maintaining  the  condition  Just  referred  to, 
since  the  situation  thus  created  was  con- 
stantly subject  to  change,  and  the  dangers, 
while  ever  present  were  not  always  Immi- 
nent It  could  not  be  said  as  a  matter  of  law 
that  plaintiff's  husband  assumed  the  risks 
thereof.  Valjago  v.  Carnegie  Sted  Ob.,  226 
Pa.  514,  619,  75  AtL  728. 

Beach  v.  Hyman,  254  Pa.  131,  98  AtL  962, 
Is  largely  depended  upon  by  appellant  As 
that  case  was  tried.  It  appears  that  the  sur- 
rounding conditions  presented  no  special  ele- 


ments of  danger;  fortber,  tbat  tb»  delator 
shaft  there  in  qaestiott  was  equipped  with 
what  80  far  as  the  evidence  Showed,  were 
proper  gates;  and  In  point  of  fact  there 
were  no  contentions  to  the  contrary.  Under 
these  circumstances  we  held  that  since  no 
knowledge  or  notice  had  been  brought  home 
to  the  defendants  that  the  particular  gate 
which  caused  the  accident  had,  in  fact,  been 
carelessly  suffered  to  remain  open,  negligence 
upon  the  part  of  the  latter  was  not  shown. 
In  the  present  Instance,  however,  there  was 
evidence  from  which  the  Jury  could  find  that 
doe  care  In  the  maintenance  of  the  elevator 
gate  had  not  been  observed  by  the  defendant 
and  that  under  the  surrounding  conditions, 
such  negligence  was  a  concurring  cause  of 
the  accident;  thus  the  two  cases  are  distin- 
guished. 

[3]  The  defendant  contends  that  the  court 
below  erred  when  it  admitted  in  evidence  a 
certain  ordinance  of  councils  regulating  the 
construcUon  and  maintenance  of  frel^t  ele- 
vators in  the  city  of  Philadelphia.  So  far  as 
the  record  shows,  while  the  ordinance  was 
allowed  in  evidence,  yet  a  copy  was  not  phys- 
ically handed  to  the  Jury  for  use  in  their  de- 
llberaUons.  The  attention  of  the  Jury  was 
called  simply  to  certain  parts  of  the  ordi- 
nance, namely,  those  providing  that  "every 
freight  elevator  shall  have  Its  hatchway  sur- 
rounded by  vertical  Inclosures  and  gates," 
and  tbat  "all  gates  must  be  self-closing,  also 
fitted  with  a  device  to  prevent  them  being 
raised  until  the  platform  is  at  the  floor  land- 
ing." When  these  excerpts  were  read  in 
court  counsel  for  plaintiff  parUcularly  stat- 
ed: 

"I  desire  it  noted  of  record  that  I  am  not  ask- 
ing for  the  admission  of  this  ordinance  to  take 
away  from  the  defendant  any  right  of  defense  at 
all,  but  simply  as  bearing  on  the  question  of  neg- 
ligence; and  when  I  say  any  defense,  I  mean 
speciiically  the  defense  of  assumption  of  risk." 

ITurthermore,  in  charging  the  jury,  the 
trial  Judge  stated: 

"Proof  of  the  violation  of  an  ordinance  regu- 
lating or  relating  to  conduct  alleged  to  have 
been  negligent  is  not  in  itself  proof  of  the  neg- 
ligence charged.  The  ordinance  and  its  viola- 
tion are  matters  of  evidence  to  be  considered 
with  all  other  evidence  in  the  case;  but  this  rule 
is  limited  to  cases  in  which  the  ordinance  re- 
lates to  the  alleged  negUgent  act  ander  consid- 
eration. •  *  •  Ordinances  and  their  viola- 
tion are  admissible,  not  as  substantive  and  suffi- 
cient proof  of  the  negligence  of  the  defendant 
but  as  evidence  of  municipal  expression  of  opin- 
ion on  matters  as  to  which  the  municipal  aa- 
thorities  have  acted,  •  •  *  and  are  to  be  tak- 
en into  consideration  with  all  the  other  facts  la 
the  case." 

The  defendant  argues  that  since  the  ordi- 
nance under  consideration  was  not  specially 
pleaded,  it  should  not  have  been  accepted  In 
evidence  at  all.  If  plaintiff  were  depending 
upon  a  violation  of  the  ordinance  as  the  sub- 
stance of  her  case,  there  would  be  force  In 
this  position;  but  she  does  not  so  depend. 
The  violation  of  defendant's  duty  to  observe 
due  care  In  relation  to  the  elevator  gates 
would  glTe  rise  to  an  action  for  negligence  oa 


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COMMONWEALTH  y.  CITT  OF  WIKKES-BAKRE 


929 


common-law  prtndples,  ivithout  regard  to 
the  terms  of  the  ordinance,  and  the  present 
suit  was  Instituted  and  tried  npon  this  the- 
ory; but  the  ordinance  points  out  what  the 
munldpality  conceives  to  be  due  care  in  that 
respect?  hence  its  relevancy.  As  previously 
stated,  when  the  trial  Judge  submitted  this 
ordinance  to  the  Jury,  he  took  care  to  say 
that  it  was  evidence  only  of  an  expression  of 
municipal  opinion  appropriate  to  the  facts  in 
the  case  as  presented  by  the  plaintiff.  The 
latter  produced  evidence  to  prove  the  facts 
hereinbefore  indicated,  and  the  question  of 
their  existence  or  nonexistence  was  submit- 
ted to  the  Jury ;  on  these  facts,  she  contend- 
ed that,  under  surrounding  conditions,  it  was 
negligence  for  defendant  to  maintain  and 
permit  tlie  operation  of  this  freight  elevator 
with  a  defective  gate^  particularly  when  no 
attendant  was  in  charge  of  the  car.  Since 
the  inner  or  guard  gate  of  the  elevator,  on 
the  second  floor,  had  carelessly  been  permit^ 
ted  to  become  out  of  order,  to  such  an  ezt^it 
that  it  was  in  etTect  nonautomatlc,  it  may  be 
seen  that  the  ordinance  relates,  in  a  measure 
at  least,  to  the  alleged  negligent  acts  under 
investigation,  suggesting  a  municipal  view 
upon  the  subject  in  hand  coinciding  with 
tliat  contended  for  by  the  plaintiff;  and  to 
this  extent  it  was  relevant  In  other  words, 
the  municipal  view,  for  what  it  was  worth, 
was  proper  for  the  Jury's  consideration.  In 
negligence  cases.  Jurors  are  constantly  called 
upon  to  exercise  their  general  knowledge  of 
the  affairs  and  conditions  of  life  with  which 
they,  in  common  with  others  in  the  commu- 
nity, come  in  more  or  less  constant  contact, 
and  thus  to  determine  whether  or  not  care- 
les.sness  directly  contributing  to  the  accident 
under  investigation  has  been  proved.  This  is 
ail  that  the  Jurors  were  asked  to  do  in  the 
present  instance;  and  the  ordinance  was  in- 
troduced simply  as  an  expression  of  munici- 
pal opinion  to  aid  them  in  their  deliberations. 
In  this  we  see  no  error.  Lederman  et  ux.  v. 
Penna.  R.  R,  Co.,  165  Pa.  118,  121,  125,  126, 
30  Atl.  725,  44  Am.  St  Rep.  644 ;  Ubelmann 
v.  American  Ice  Co.,  209  Pa.  398,  400,  58 
AtL  840. 

[4]  The  case  at  bar  was  not  tried  upon  the 
theory  of  the  maintenance  of  an  improper 
and  unsafe  Implement  but  rather  of  an  un- 
safe and  dangerous  condition  of  affairs  at 
the  place  of  the  accident;  hence  it  was  not 
necessary  to  plead  or  prove  that  the  elevator 
In  question  was,  in  fact,  more  dangerous 
than  those  of  the  kind  in  general  use. 

[5]  Finally,  the  relevant  Issues  were  sub- 
mitted to  the  Jury  without  error  prejudidal 
to  the  defendant;  and,  considering  the  age 
and  earning  capacity  of  plalntifTs  decedent, 
the  verdict  of  $5,616  is  not  an  excessive  one 
for  this  mother  and  six  children.  The  for- 
mer verdict  rendered  in  their  favor  was  $500 
more ;  in  all  probability,  it  was  set  aside  to 
permit  a  second  Jury  to  pass  upon  the  credl- 


hllity  of  defendant's  witness  Jacobs,  and  the 
present  verdict  shows  that  his  testimony  was 
rejected  a  second  time.  The  case  is  a  close 
one  in  several  respects ;  but,  on  Its  peculiar 
facts,  we  are  not  convinced  It  could  properly 
have  been  taken  from  the  Jury,  or  that  the 
proof  was  insufficient  to  support  the  ver- 
dict 

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


(SS  Pa.  130) 
COMMONWEALTH  ex  reL  SLATTERY,  Dist 

Atty.,  V.  CITY  OF  WILKES-flARRB  et  aL 
(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  Statutes  «=>184,  206  —  Cohstruotion  — 
Giving  Effect  to  Statute. 

Where  there  is  an  apparent  conflict  between 
different  parts  of  the  statute,  the  general  le^s- 
lative  purpose  mneft  be  considered,  and,  if  the 
language  permits,  the  statute  must  be  so  con- 
strued  as  to  give  effect  to  every  part  tbereol 

2.  Statutes  ®=3l89— Construction. 

Literal  construction  of  the  language  of  part 
of  an  act  cannot  prevail,  if  another  construction 
is  fairly  deducible,  which  will  better  effect  the 
manifest  legislative  intention,  as,  if  it  con  be 
reasonably  avoided,  a  statute  shonld  not  be  con- 
strued to  defeat  the  legislative  purpose. 
8.  Municipal  Coeporations  <S=>108  —  Ordi- 
nance—Peotest— Form— Statute. 

A  petition  of  electors  of  a  city  of  the  third 
class,  filed  within  10  days  and  signed  by  voters 
equal  in  number  to  more  than  20  per  cent  of 
the  entire  number  of  votes  cast  for  all  candi- 
dates for  mayor  at  the  last  preceding  general 
election,  protesting  against  the  passage  of  an 
ordinance  and  requesting  its  reconsideration  and 
repeal,  or  its  submission  to  a  vote  of  the  electors 
in  the  form  required  by  the  referendum  article 
of  Act  June  27,  1913  (P.  L.  568)  art.  20,  was 
sufficient,  and  was  not  required  to  be  prepared 
and  signed  in  accordance  with  the  initiative  ar- 
ticle of  such  act  (article  19),  as  that  applies  only 
to  proceedings  for  the  initiation  of  legislation. 

Appeal  from  CJourt  of  Common  Pleas,  Lu- 
zerne County. 

Petition  for  peremptory  mandamus  by  the 
Commonwealth,  on  relation  of  Frank  P.  Slat- 
tery.  District  Attorney  of  Luzerne  County, 
against  John  V.  Kosek,  Mayor,  and  B..  Nelson 
Bennett  and  others,  Councllmen,  of  the  City 
of  Wllkes-Barre.  From  a  Judgment  dismiss- 
ing the  petition,  the  relator  appeals.  Re- 
versed, and  writ  ordered  to  issua 

Argued  before  BROWN,  C.  J.,  and  MES- 
TRKZAT,  POTTBRv  FRAZBR,  and  WAL- 
LING, JJ. 

W.  1.  Hibbs,  of  Plttston,  for  appellant 
John  T.  Lanehan  and  C.  F.  McHugh,  both  of 
Wllkes-Barre,  for  appellees. 

MESTREZAT,  J.  This  is  an  appeal  by  the 
relator  from  a  Judgment  refusing  to  grant  a 
writ  of  mandamus.  On  October  3,  1916,  the 
dty  coundl  of  Wilkes-Barre,  a  dty  of  the 
third  class,  passed  finally  an  ordinance  award- 
ing to  the  Wilkes-Barre  Company  a  contract 
for  lighting  certain  streets  and  public  build- 
ings of  the  dty  for  the  term  of  five  years. 
Within  10  days,  a  petition  of  quallfled  elec 


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tors  of  the  dty,  signed  by  voters  equal  In 
number  to  more  than  20  per  cent,  of  the  en- 
tire number  of  votes  cast  for  all  candidates 
for  mayor,  at  tbe  last  preceding  general 
municipal  election  at  which  a  mayor  was 
elected,  was  presented  to  and  filed  with  the 
city  council  protesting  against  the  passage 
of  the  ordinance  and  requesting  its  reconsid- 
eration and  repeal  by  the  council,  and,  upon 
failure  of  the  council  to  repeal  the  ordinance, 
that  the  same  be  submitted  to  a  vote  of  the 
people  of  the  city,  as  provided  In  articles  19 
and  20  of  the  act  of  June  27,  1913  (P.  L.  568). 
The  council  neglected  and  refused  to  recon- 
sider the  ordinance  or  to  submit  the  same  to 
a  vote  of  the  electors  of  the  city.  Thereupon, 
the  district  attorney  of  Lozerne  county  peti- 
tioned the  court  below  for  a  mandamus  upon 
the  mayor  and  dty  councUmen  of  the  city  of 
Wllkes-Barre  commanding  them  to  reconsider 
the  ordinance,  and  to  cause  the  same.  If  not 
repealed,  to  be  submitted  to  the  electors  of 
the  city,  as  provided  by  the  act  of  1913.  The 
mandamus  was  refused  on  the  ground,  as 
stated  in  the  opinion  of  the  court,  that  the 
petition  was  not  preceded  by  a  written  re- 
quest of  100  electors,  prepared  by  the  city 
clerk,  and  signed  In  his  oRice  on  oath  before 
him,  as  provided  by  article  19  of  the  act  of 
1913.  In  a  concurring  opinion,  one  of  the 
Judges  of  the  court  Joined  in  refusing  the 
mandamus  for  the  reason  that  article  20  "is 
so  inconsistent  and  ambiguous  that  It  ought 
to  be  declared  inoperative." 

The  act  of  June  27,  1913  (P.  L.  668),  pro- 
vides for  the  Incorporation,  regulation,  and 
government  of  cities  of  the  third  class.  Arti- 
cle 19  provides  a  method  for  Inaiiguratlng 
dty  legislation  outside  the  council,  and  ar- 
ticle 20  prescribes  a  method  for  submitting 
an  ordinance  to  a  vote  of  the  electorate  be- 
fore It  becomes  effective.  Article  19  pro- 
vides that  any  proposed  ordinance  may  be 
submitted  to  the  council  by  a  petition  signed 
by  the  electors  of  any  dty  of  the  third  class ; 
and,  "upon  the  written  request  of  one  hun- 
dred qualified  electors,  directed  to  the  dty 
clerk,"  he  shall  prepare  such  petition  within 
10  days,  and  meanwhile  notice  shall  be  given 
by  advertisement  that  the  petition  will  be 
ready  for  signing  at  the  expiration  of  the 
10  days.  Ten  days  more  shall  be  allowed  for 
signatures.  The  signing  shall  be  done  In  the 
dty  derk's  office  only,  and  the  petition  shall 
be  retained  there  at  all  times  during  the  pe- 
riod of  10  days.  Each  signer  shall  add  to 
his  signature  his  place  of  residence,  and  shall 
make  oath  before  the  dty  derk  that  he  Is  a 
qualified  elector  of  the  dty  and  resides  at  the 
address  given.  At  the  end  of  the  "ten  days 
aforesaid,"  and  within  10  days  thereafter, 
the  clerk  shall  examine  the  petition  and  as- 
certain whether  it  is  signed  by  voters  equal 
to  20  per  centum  of  all  votes  cast  for  all 
candidates  for  mayor  at  the  last  preceding 
election,  and  shall  attach  to  the  petition  his 
certificate  showing  the  result  of  said  exami- 


nation. If  the  petition  shall  be  cwtlfled  to 
contain  20  per  centum  of  the  votes  cast,  as 
aforesaid,  the  derk  shall  submit  the  same 
to  the  council  without  delay.  Article  20  pro- 
vides that: 

"No  ordinance  passed  by  the  council  [with  cer- 
tain exceptions]  shall  go  into  effect  before  ten 
days  from  the  time  of  its  final  passage;  and  if, 
during  the  said  ten  days,  *  *  *  a  petition 
signed  by  electors  of  the  dty  equal  in  number  to 
at  least  twenty  per  centum  of  the  entire  votes 
of  all  candidates  for  mayor  at  the  last  preced- 
ing •  •  *  election  at  which  a  mayor  was 
elected,  protesting  against  the  passage  of  such 
ordinance,  be  presented  to  the  council,  the  same 
shall  thereupon  be  suspended  from  going  into 
operation ;  and  it  shall  he  the  duty  of  the  coun- 
cil to  reconsider  such  ordinance;  and,  if  the 
same  is  not  entirely  repealed,  the  coundl  shall 
submit  the  ordinance,  as  is  provided  by  subsec- 
tion (b)  of  section  one  of  article  nineteen  of  this 
act,  to  the  vote  of  the  electors  of  the  city, 
*  *  *  and  such  ordinance  shall  not  go  into 
effect  or  become  operative  unless  a  majority  of 
the  qualified  electors  voting  on  the  same  shall 
vote  in  favor  thereof.  Said  petition  shall  be 
prepared,  signed  and  perfected  in  all  respects, 
in  accordance  with  the  provisions  of  said  sec- 
tion one  of  article  nineteen,  and  be  examined 
and  certified  to  by  the  derk  in  all  respects  as 
therein  provided." 

The  position  of  the  learned  court  below  and 
of  the  appellees  Is  that  the  petition  of  pro- 
test required  by  artlde  20  must  "be  prepared, 
signed  and  perfected  In  all  respects  In  accord- 
ance with  the  provisions  of  article  nineteen." 
It  is  claimed  that  such  Is  the  plain  require- 
ment of  artlde  20,  and  that  a  compliance 
therewith  Is  a  prerequisite  to  a  demand  for 
a  referendum.  It  Is  conceded  that  the  peti- 
tion of  protest  presented  to  the  council  was 
not  prepared,  signed,  and  certified  as  required 
by  article  19,  and  therefore  It  is  contended 
that  the  coundl  properly  refused  to  act  up- 
on It.  The  relator  maintains  that  the  court 
misinterpreted  article  20  of  the  act  In  ques- 
tion, and  that  the  petition  of  protest  la  not 
required  to  be  signed  and  certified  in  con- 
formity with  the  provisions  of  artlde  19,  and 
that  such  signing  and  certification  apply  only 
to  the  petition  required  to  be  filed  on  the  re- 
fusal of  the  council  to  repeal  the  ordlnamre. 
It  Is  further  claimed  that  to  apply  the  re- 
quirements of  the  Initiative  petition  of  arti- 
cle 19  to  the  petition  of  protest  In  the  referen- 
dum article  would  make  that  part  of  the  last- 
named  article  Inoperative  and  render  it 
Impossible  of  performance. 

[1 , 2]  In  considering  certain  artldes,  in- 
cluding 19  and  20,  of  the  act  of  1913,  in 
Commonwealth  ex  rel.  Helnly  ▼.  Marks,  24S 
Pa.  518,  522,  94  Atl.  191,  192,  It  was  said: 

"The  act  in  question,  like  many  other  _  at- 
tempts to  legislate  upon  advanced  lines,  gi^eB 
evidence  of  having  been  drawn  hastily  and  with- 
out any  serious  effort  to  co-ordinate  its  varioas 
parts;  but,  under  such  circumstances,  it  is  the 
office  of  the  Judidary  to  apply  the  established 
rules  of  law  and  construction,  and,  when  possi- 
ble, to  reconcile  the  various  legislative  provi- 
sions, BO  that  all  may  stand  together  and  yet 
each  operate  within  its  own  field." 

In  cases  where  there  is  an  apparent  con- 
filct  between  different   parts  of  a  statute. 


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COMMONWEALTH  v.  CITY  OF  WILKES-BABRB 


931 


the  general  purpose  of  tbe  Legislature  must 
be  considered,  and,  tf  the  language  will  per- 
<uit,  such  construction  must  be  applied  as 
will  give  effect  to  every  part  of  the  law.  A 
statute  will  not  be  construed  so  as  to  defeat 
tbe  object  of  the  Legislature,  If  it  can  rea- 
sonably be  avoided.  Uteral  construction  of 
the  language  of  a  part  of  an  act  of  assembly 
cannot  prevail,  if  another  Interpretation  is 
fairly  dedudble  which  will  better  effect  the 
manifest  purpose  of  the  general  legislative 
Intent.  The  purpose  and  intention  of  the 
whole  statute,  as  derived  therefrom,  will  con- 
trol the  interpretation  of  its  several  parts, 
so  that  the  whole  may  be  made  effective.  It 
is  presumed,  as  well  on  the  ground  of  good 
faith  as  on  the  ground  that  tbe  Legislature 
would  not  do  a  vain  thing,  that  it  Intends  Its 
acts  and  every  part  of  them  to  be  valid  and 
capable  of  being  carried  out.  2  Lewis'  Suth- 
erland, Stat.  Con.  (2d  Ed.)  i  490.  "It  Is  the 
duty  of  the  court,"  says  Agnew,  O.  J.,  In 
Haucb  Chunk  v.  McGee,  81  Fa.  433,  437,  "to 
reconcile  the  different  parts  of  a  law,  if  it 
can  be  reasonably  done,  rather  than  to  de- 
clare any  part  void,  and  tbus  frustrate  tbe 
legislative  action." 

( 3]  If  the  petition  of  protest  required  by  the 
referendum  article  of  the  act  must  be  "pre- 
pared, signed  and  perfected"  In  accordance 
with  tbe  initiative  article,  the  clause  of  the 
article  requiring  tbe  flUng  of  the  petition  is 
Incapable  of  performance,  and  is  therefore 
nullified.  This  Is  apparent  from  the  provi- 
sions of  tbe  two  articles  in  question.  The 
referendum  article  8usi)end8  operation  of  the 
ordinance  for  10  days,  "and  if,  during  tbe 
said  ten  days,  *  •  •  a  petition  signed  by" 
not  less  than  twenty  per  cent,  of  tbe  "electors 
of  the  dty  •  ♦  •  protesting  against  the 
I>assage  of  such  ordinance,  be  presented  to 
the  council,  the  same  shall  thereupon  be  sus- 
pended from  going  into  operation."  This  pro- 
test most,  therefore,  be  presented  to  the 
ooundl  within  10  days  from  the  final  passage 
of  the  ordinance,  or  thereafter  It  is  operative 
and  Is  a  law  of  the  dty.  The  proceedings 
to  initiate  legislation  under  article  10,  as 
win  be  observed,  require  a  written  request  of 
100  electors  to  be  presented  to  the  dty  clerk 
to  prepare  the  petition.  He  has  then  10  days 
to  prepare  the  petition,  and  meanwhile  to 
advertise  notice  that  the  petition  will  be 
ready  for  signing  at  the  expiration  of  such 
10  days.  Ten  days  more  are  allowed  for 
signing  which  shall  be  done  in  tbe  city  clerk's 
office.  At  the  expiration  of  this  period  for 
signatures,  "and  within  10  days  thereafter," 
the  clerk  shall  examine  the  petition,  and  If 
tbe  requisite  number  of  voters  have  not  signed 
it,  10  days  more  shall  be  granted  to  amend, 
and  If  sufficient  signatures  have  then  been  ob- 
tained he  shall  present  the  petition  to  tbe 
coundl.  It  is  palpably  manifest  that  a  peti- 
tltw  could  not  thus  be  prepared,  signed  by  at 
least  20  per  cent  of  the  electors,  and  present- 
ed to  tbe  council  in  10  days  from  the  passage 


of  an  ordinance,  as  required  by  artide  20  of 
the  statuta  Aside  from  other  requisites  of 
such  a  petition,  which  requires  at  least  30 
days  for  its  completion,  the  derk,  as  will  be 
observed,  has  10  days  to  prepare  the  petition 
and  to  give  notice  by  advertisement  where 
and  when  it  may  be  signed,  and  thereafter 
tbe  electors  have  10  days  for  attaching  their 
signatures.  The  time  for  instituting  tbe 
referendum  proceedings  by  filing  a  petition 
and  thereby  continuing  the  suspension  oC 
the  operation  of  tbe  ordinance  will  expira, 
and  tbe  ordinance  become  operative,  before 
the  petition  can  be  signed  and  presented  to 
tbe  coundl. 

The  settled  rules  of  statutory  construction, 
as  already  pointed  out,  will  not  permit  sudi 
a  result  If  it  can  reasonably  be  avoided.  We 
will  not  presume  that  the  Legislature,  by 
tbe  language  of  tbe  mactment,  intended  in 
bad  faith  to  nullify  tbe  referraidum  article, 
and  thereby  defeat  Its  express  purpose. 
There  is  no  ambiguity  or  uncertainty  of  pur- 
pose in  the  referendum  artide.  It  plainly  de- 
clares that  no  ordinance  shall  go  Into  effect 
before  10  days  after  its  final  passage,  and  if 
the  requisite  protest  is  presented  to  the  coun- 
dl within  that  time,  tbe  operation  of  tbe  or- 
dinance is  suspended,  and,  If  not  entirely  re- 
pealed, it  must  be  submitted  to  a  vote  of  the 
electors  of  the  city.  The  two  dominant 
thoughts  in  these  provisions  of  the  artide 
are  the  suspension  of  the  operation  of  the  or- 
dinance and  its  submission  to  the  popular 
vote.  The  first  Is  to  be  carried  out  by  pre- 
senting a  protest  to  the  coundl.  This  may 
end  ail  further  proceedings  on  the  ordinance. 
Tbe  coundl  is  required  to  reconsider  tbe  or- 
dinance, and,  if  it  is  entirely  repealed,  tbe 
legislation  is  ended.  If,  however,  such  ac- 
tion be  not  taken  by  the  coundl,  the  second 
step  becomes  necessary,  and  the  electorate 
must  determine  by  their  votes  whether  the 
ordinance  ertiall  become  a  law  of  tbe  dty. 
The  submission  is  to  be  made  "as  is  provided 
by  subsection  (b)  of  section  one  of  article 
nineteen  of  this  act,"  wbidi  provides,  inter 
alia: 

"Forthwltli,  after  the  clerk  shall  attach  to  the 
petition  accompanying  such  ordinance  his  certifi- 
cate of  sufficiency,  the  council  shall  call  a  spe- 
cial election  unless  the  general  municipal  elec- 
tion is  fixed  within  ninety  days  thereafter." 

It  was  evidently  intended  that  this  submis- 
sion should  be  made  on  petition,  prepared  and 
signed  in  accordance  with  the  provisions  of 
article  nineteen.  The  petition  of  protest  was 
regarded  as  a  preliminary  proceeding  and 
as  having  served  its  purpose  by  bringing  the 
objections  of  the  dectorate  to  tbe  notice  of 
the  coundl.  No  daborate  procedure,  such  as 
is  provided  by  article  19,  was  deemed  by  tbe 
Legislature  necessary  in  simply  entering  tbe 
protest  which.  If  effective,  made  unnecessary 
an  election,  and  the  ccmsequent  care  and  ex- 
pense required  by  tbe  machinery  of  that  ar- 
ticle in  ascertaining  tbe  duly  qualified  elect- 
ors of  tbe  dty.    The  objection  that,  imlesa 


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101  ATIiANTIO  REPORTER 


(Pa. 


the  protest  la  prepared  and  signed  as  requir- 
ed by  the  initiative  article,  It  cannot  be 
known  If  the  requisite  number  of  signatures 
has  been  obtained  Is  not  well  taken.  If  that 
becomes  a  question  of  importance  in  any  case, 
It  must  be  determined  by  the  courts  in  the 
usual  way.  The  burden  Is  upon  those  enter- 
ing the  protest  against  the  ordinance  to  show 
that  they  have  complied  with  the  require- 
ments of  the  statute  as  to  the  number  of  sign- 
ers, as  well  as  in  other  respects,  and,  fail- 
ing to  do  so,  the  protest  falls,  and  the  ordi- 
nance becomes  operative  and  is  a  law  of  the 
city. 

Our  construction  of  the  referendum  artide 
makes  it  intelligible  and  enforceable,  and 
hence  carries  out  the  intention  of  the  legis- 
lature in  the  enactment  of  the  statute. 

The  Judgment  refusing  the  mandamus  is 
reversed,  and  the  writ  is  ordered  to  be 
awarded  as  prayed  for. 

(2SS  Pa.  IM) 

In  re  VERHOVAT  AID  ASS-N^S  CHARTER. 

(Supreme  Ourt  of  PeDDSylvania.    May  7,  1917.) 

Appeai,  and  Ebbor  «=»1010(1)— Question  or 
Fact— Amendment  or  Chabteb. 
An  appeal  from  the  lower  court's  refusal  to 
allow  an  amendment  of  the  charter  of  a  benefi- 
cial as!K)ciation  incorporated  under  Act  April  6> 
1893  (P.  L.  101,  10  aa  to  change  its  principal 
office  from  a  town  in  the  county  where  it  was 
created  to  a  city  in  another  county,  will  be  dis- 
missed, where  the  lower  court  found  that  there 
was  no  clear  proof  of  the  desire  of  its  members 
to  amend  the  charter. 

Appeal  from  Ck>urt  of  Common  Pleas,  Lu- 
seme  County. 

Petition  to  amend  the  charter  of  the  Ver- 
bovay  Aid  Association,  a  fraternal  and  ben- 
eficial assodation.  From  a  decree  refusing 
the  petition,  petitioners  appeal.  Appeal  dis- 
missed. 

From  the  record  it  appeared  that,  at  a 
convention  of  the  Verhovay  Aid  Association, 
the  majority  of  the  202  delegates  voted  in 
favor  of  the  change  in  the  location  of  the 
association's  principal  place  of  business. 
There  was  no  evidence  as  to  whether  the 
delegates  at  such  convention  voted  upon  the 
authority  and  with  the  knowledge  of  the 
branches  and  members,  or  merely  upon  their 
Individual  judgment.  The  membership  of  the 
association  was  approximately  16,000.  Fur- 
ther facts  appear  by  the  opinion  of  the  Su- 
preme Court 

Argued  before  BROWN,  a  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAIi- 
I/ING,  JJ. 

John  H.  Blgelow,  of  Hazleton,  Harry 
Doerr,  of  Johnstown,  and  John  R.  Sharpless, 
of  Hazleton,  for  appellants.  M.  A.  Kilker,  of 
Glrardville,  and  John  J.  Kelley,  of  Hazleton, 
for  appellee. 

PER  OmilAM.  The  appellant  was  Incor- 
porated by  the  court  below  on  September  8, 


1901,  under  Act  April  6, 1893  (P.  L.  10).  That 
act  provides  that  its  charter  must  set  forth 
where  its  principal  office  is  to  be  located,  and 
Hazleton,  Luzerne  county,  was  named  in  the 
charter  as  the  location  of  that  office.  This 
appeal  is  from  the  refusal  of  the  court  below 
to  allow  an  amendment  to  the  charter,  diang- 
ing  the  place  of  appellant's  principal  office 
from  Hazleton  to  Pittsburgh,  Allegheny 
county. 

The  petition  to  amend  was  denied  for  the 
reason  that  there  had  not  been  clear  proof  of 
the  desire  for  the  amendment  on  the  part  of 
the  membership  of  the  association.  We  have 
not  been  convinced  that  this  was  error,  even 
If  the  court  had  authority  to  allow  the  amend- 
ment It  declined  to  pass  upon  that  question, 
and  we  shall  therefore  not  now  consider  It. 

Appeal  dismissed,  at  appellant's  costs. 


(2E8  Pa.  127) 
COMMONWEALTH       ex       rd.       McADOO 
BRANCH,  NO.  11,  VERHOVAY  AID 
ASS'N,  V.  VERHOVAY  AID  ASS'N. 

(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

Mandamus  ®=>138— SuBjE<n>-AcT8  of  Offi- 
cers OF  Beneficial  Society. 
Mandamus  was  properly  awarded,  on  rela- 
tion of  members,  to  compel  officers  of  a  beneficial 
society,  who  has  changed  its  principal  place  of 
business  to  another  county  from  that  in  which 
they  were  authorized  by  tiieir  charter  to  main- 
tain it,  without  having  complied  with  society's 
constitution  and  by-laws,  to  compel  them  to 
maintain  a  principal  office  in  town  in  which  it 
was  originally  located  until  legally  authorized 
to  remove  it. 

Appeal  from  Court  of  Common  Pleas,  Lu- 
zerne County. 

'Petition  for  mandamus  by  the  CVmmoo- 
wealth,  on  relation  of  McAdoo  Branch,  No. 
11,  Verhovay  Aid  Association,  against  the 
Verhovay  Aid  Association,  a  beneficial  so- 
ciety, to  compel  it  to  maintain  a  principal 
place  of  business  in  the  city  in  whidi  it  was 
directed  to  be  malntalnied  by  the  by-laws. 
Judgment  for  relator,  and  defendant  appeals. 
Affirmed. 

The  facts  appear  from  the  following  opln- 
Ion  by  Fuller,  J.,  in  the  common  pleas: 

The  plaintiffs  are  members  of  the  defendant, 
a  secret  fraternal  and  beneficial  society,  incor- 
porated by  this  court  under  Act  April  6,  1S93 
(P.  L.  10),  and  complain  that  the  principal  of- 
fice of  the  defendant  has  been  unlawfully  moved 
from  the  city  of  Hazleton,  designated  in  the 
charter,  to  the  city  of  Pittsburgh;  wherefore 
they  pray  the  court  "to  issue  a  writ  of  man- 
damus to  the  said  Verhovay  Aid  Association 
and  to  the  officers,  defendants  above  named, 
commanding  the  defendants  to  locate  the  prin- 
cipal office  of  the  said  association  in  the  said 
city  of  Hazleton,  and  to  keep  and  maintain  the 
same  therein."  The  case,  after  being  put  at 
issue  by  petition  and  answer,  was  by  agreement 
submitted  to  the  court  without  a  jury  under 
Act  April  22,  1874  (P.  L.  10»). 

From  the  pleadings  and  evidence,  we  find  the 
following  facts: 

(1)  The  Verhovay  Aid  Association,  defendant 


«=9For  other  cue*  sm  urn*  topic  aod  KBY-NUUBER  In  all  Key-Numberad  DleesU  and  Indn« 

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L'HOMMEDIISU  ▼.  DELAWABE,  L.  A  W.  B.  CX>. 


corporation,  of  whom  the  individual  defendants 
are  the  chief  officers,  as  named  in  the  caption, 
was  incorporated  by  this  court  September  8, 
1901,  under  Act  April  6,  1893  (P.  L.  10),  for 
the  purpose  of  "the  organization  of  a  beneficial 
relief  society  or  association  which  will  pay  the 
members  sick  tmd  funeral  benefits  from  funds 
collected  by  assessment  on  the  membership  of 
the  society,  and  for  more  fully  carrying  out  this 
purpose  it  is  the  intention  to  create  subordinate 
or  branch  societies,  wherever  it  may  be  to  their 
interest  to  do  so."  In  the  charter  it  is  provided 
"that  the  place  where  its  principal  office  is  to 
be  located  is  the  city  of  Hasleton,  county  of 
Luzerne,  state  of  Pennsylvania." 

(2)  The  plaintiff,  McAdoo  Branch  No.  11,  is 
a  subordinate  or  branch  society  of  the  Vechovay 
Aid  Association,  and  the  individual  plaintiffs 
are  members  thereof  with  standing  to  make  this 
complaint. 

(S)  By  a  proceeding  in  this  court,  filed  June 
10,  1913.  to  No.  134,  October  term,  1913,  it 
was  sought  to  amend  the  charter  by  changing 
the  location  of  the  principal  office  from  the 
city  of  Hazleton  in  this  county  to  the  city  of 
Pittsburgh ;  but  by  decision  of  this  court,  filed 
August  14,  1913,  the  application  was  refused, 
on  the  ground  that  the  proceedings  had  not  been 
preceded  by  certain  preliminary  requirements  of 
the  constitution  and  by-laws  of  the  association. 

(4)  A  second  proceeding  was  subsequently 
filed  to  No.  2428,  October  term,  1914,  but  was 
later  withdrawn  without  submission  to  the 
court. 

(5)  From  the  date  of  incorporation  until  the 
latter  part  of  September,  1914,  the  principal 
office  was  kept  and  maintained  in  the  city  of 
Hazleton  as  designated  in  the  charter,  but  in 
the  latter  part  of  September,  1914,  it  was  re- 
moved for  all  practical  intents  and  purposes  in 
the  transaction  of  the  corporate  business,  to 
the  city  of  Pittsburgh,  where  it  has  been  since 
maintained  and  is  now  maintained,  although  as 
a  matter  of  form,  without  substance,  it  con- 
tinued to  bold  possession  of  a  room,  which  it 
designates  an  office,  in  the  city  of  Hazleton.  No 
proof  has  been  adduced  that  this  removal  was 
preceded  by  compliance  with  the  requirements 
of  the  constitution  and  foy-Iaws,  which  in  the 
application  to  the  court  were  held  essential  as 
already  stated,  supra  (3). 

No  requests  have  been  submitted  on  either 
side.  From  the  facts  we  state,  without  hesita- 
tion or  citation,  in  a  matter  which  seems  en- 
tirely free  from  doubt,  the  following  conclusions 
of  law: 

(1)  The  plaintiffs  have  standing  to  demand 
conformity  with  the  provision  of  the  charter 
relative  to  the  location  of  the  principal  office 
and  to  insist  that  it  shall  remain  at  Hazleton 
until  legally  removed  to  some  other  place. 

(2)  They  are  therefore  entitled  to  have  a 
peremptory  mandamus  as  prayed,  issuable  on 
special  motion,  20  days  after  signing  of  this 
Judgment,  subject  to  further  hearing  and  argu- 
ment on  exceptions,  if  any  be  filed. 

The  lower  conrt  granted  the  writ  of  man- 
damus as  prayed  for.    Defendant  appealed. 

Argued  before  BROWN,  C.  J.,  and  MBS- 
TREZAT,  POTTDR,  PUAZER,  and  WAU 
LING,  JJ. 

John  R.  Sharpless  and  John  H.  Blgelow, 
both  of  Hazleton,  and  Harry  Doerr,  of  Johns- 
town, for  appellant.  John  J.  Kelley,  of  Hazle- 
ton, and  M.  A.  Kilker,  of  GirardviUe,  for  ap- 
pellee. 

PER  CURIAM.  This  Judgment  Is  affirm- 
ed on  the  facts  foiud  and  legal  conclu- 
sions reached   by  the  learned  court  below. 


Oa  Fa.  U5) 
L'HOMMEDIBU  v.   DELAWARE,  L.  ft  W. 
R.  CO. 

(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  Oahbixbs  «=>337  —  Pebsonal  Iwjubt— As- 
sumption or  Risk. 

A  passenger,  leaving  his  seat  while  the  train 
is  still  in  motion  t>efore  reaching  his  station, 
and  standing  in  the  vestibule  with  his  fingers 
on  the  jamb  of  the  car  door,  assumed  the  risk 
of  injury  to  his  fingers  when  the  door  was  shut 
by  a  trainman,  not  shown  to  have  seen  his  dan- 
ger or  to  have  acted  wantonly. 

2.  Cabbiebs  ®=>302(3)  —  Pebsonai,  In^obt  — 
Neguobnce. 

In  such  case  the  trainman,  acting  within 
the  oroper  line  of  his  duty,  was  under  no  obliga- 
tion to  see  that  the  passenger's  fingers  were  on 
the  Jamb  of  the  door,  or  to  foresee  any  reasonable 
probability  that  they  would  be  there. 

Appeal  from  Court  of  Common  Pleas,  Lu- 
zerne Ooimty. 

Trespass  by  Arthur  R.  L'Hommedieu 
against  the  Delaware,  Lackawanna  ft  West- 
em  Railroad  Company  to  recover  damages 
for  personal  Injuries.  E^m  a  Judgment  re- 
fusing to  take  oft  a  compulsory  nonsuit, 
plaintiff  appeals.     Affirmed. 

The  facts  appear  in  the  following  opinion 
of  the  court  In  banc: 

The  plaintiff,  a  passenger  in  a  day  coadi  on 
defendant's  vestibuled  train  approaching  Scran- 
ton,  when  the  station  was  called  and  the  car 
door  into  the  vestibule  was  opened  by  the  train- 
man, left  his  seat  and  went  forward  into  the  ves- 
tibule, preparatory  to  alighting.  There  he  took  a 
position  facing  the  unopened  vestibule  door, 
through  which  he  expected  to  go.  In  order  to 
steady  himself  in  that  position,  he  placed  his 
right  hand  airainst  the  jamb  of  the  car  door,  with 
his  fingers  in  the  space  between  the  door  and 
the  jamb.  Before  the  station  was  reached,  the 
trainman  who  stood  in  the  vestibule  in  front 
of  the  plaintiff  reached  into  the  car  and  pulled 
shut  the  open  door  upon  the  plaintiffs  fingers, 
inflicting  ue  injury  for  which  the  action  was 
brought.  The  reason  for  thus  shutting  the  door 
was  not  disclosed  on  the  trial,  as  the  defendant 
offered  no  evidence. 

[1,2]  There  is  no  proof  that  the  trainman 
actually  saw  the  position  of  the  plaintiffs  fingers, 
nor  is  there  any  contention  that  he  acted  wanton- 
ly, as  he  must  have  done  if  he  had  seen;  but 
the  claim  is  advanced,  as  the  foundation  of  lia- 
bility, that  he  ought  to  have  seen,  and  in  the 
exercise  of  due  care  for  the  safety  of  the  pas- 
senger should  not  have  closed  the  door  without 
warning  or  other  precaution. 

We  cannot  sustain  this  view.  There  is  no 
evidence  that  the  trainman  was  not  acting  within 
the  proper  line  of  his  duty,  and  presumptively 
he  was  so  acting  when  ho  shut  the  door.  He 
was  under  no  obligation  to  see  where  the  plain- 
tiffs fingers  happened  to  be,  nor  to  foresee  any 
reasonable  nrobability  of  their  being  placed  in 
such  a  precarious  position.  The  plaintiff,  by 
leaving  his  seat  and  standing  in  the  vestibule, 
assumed  the  risk  of  what  happened,  even  if  ha 
were  not  guilty  of  contributory  negligence  in  so 
doing. 

We  need  not  go  so  far  as  to  decide  that  he  was 
guilty  of  contributory  negligence,  nor  will  we  de- 
cide that  he  was  not  guilty  thereof,  and  thus 
run  the  risk  of  creating,  with  slight  ground  for 
distinction,  an  exception  to  the  salutary  rule  of 
authority  that  a  passenger  on  a  railroad  train 
should  not  leave  his  seat  for  the  purpose  of 
alighting  until  the  train  comes  to  a  stop. 


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101  ATLANTIC  REPORTBB 


(P«. 


We  pass  over  the  question  of  contributory  neg- 
ligence altogether,  and  we  hold  that  the  nonsuit 
was  properly  allowed  for  lack  of  proof  establish- 
ing negligence  on  the  part  of  defendant's  em- 
ploy*. 

The  lower  court  entered  a  compulsory  non- 
suit, which  it  subsequently  refused  to  take 
off.     Plaintiff  appealed. 

Argued  before  BROWN,  C.  J,  and  MES- 
TBEZAT,  POTTER,  FBAZER,  and  WALI> 
ING,  JJ. 

Franit  A.  McGuigan  and  Harris  B.  Hamlin, 
both  of  Wilkes-Barre,  for  appellant.  Benja- 
min B.  Jones,  of  Wilkes-Barre,  and  J.  U. 
Oliver,  of  Scranton,  for  apt)ellee. 

P£R  CURIAM.  It  clearly  appears,  f^m 
the  cwidse  opinion  of  the  court  below  refus- 
ing to  take  off  the  nonsuit,  that  no  negligence 
of  defendant  was  shown,  and  on  that  opin- 
loD  the  Judgment  is  affirmed. 


(K8PB.U7) 

In  r«  MINERS'  BANK  OF  WILKES-BARRE. 

Appeal  of  HANCOCK. 
(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

TBU8T8  «=»59(2),  140(1)— COHBIBUCnON— Lux 
ESTATB— DiSTBIBUnON. 

Where  a  husband  and  wife,  owning  royalties 
under  coal  leases,  conveyed  them  to  a  trustee 
to  pay  the  husl>and  a  certain  sum  annually  for 
life  and  to  pay  one-qtiarter  of  the  balance  of 
the  income  to  the  wife  during  his  lifetime,  and 
after  his  death  to  pay  her  what  she  would  be 
entitled  to  receive  under  the  intestate  laws,  and 
to  pay  the  balance  in  equal  shares  to  his  three 
childreu,  the  deed  of  trust  limited  her  estate  in 
the  royalties  to  a  life  estate,  and  the  trust  was 
revoked  by  her  death  after  that  of  her  husband, 
and  the  fund  was  payable  to  the  three  children 
in  equal  shares. 

Appeal  from  Court  of  Common  Pleas,  La- 
ze me  County. 

Case  stated  in  the  matter  of  the  Miners' 
Bank  of  Wilkes-Barre,  successor  to  the  Min- 
ers' Savings  Bank  of  Wilkes-Barre,  trustee 
for  William  James  Hancock,  Louise  B.  Han- 
cock, and  Anna  M.  Hancock  Smith,  to  de- 
termine the  rights  of  the  parties  under  a 
declaration  of  trust.  From  a  decree  of  the 
common  pleas,  Luzerne  county,  Louise  B. 
Hancock  appeals.     Affirmed. 

The  facts  appear  by  the  opinion  of  the 
lower  court,  per  Woodward,  J.: 

The  Miners'  Bank  of  Wilkes-Barre  succeeded 
the  Miners'  Savings  Bank  as  trustee  in  a  deed 
of  trust  from  William  Hancock  and  wife,  datt-d 
November  19,  1901,  nroWding  for  the  distribu- 
tion of  coal  royalties  arising  under  three  sepa- 
rate leases  in  said  assignment  set  forth.  As  the 
rights  of  the  parties  depend  upon  this  assign- 
ment, we  will  here  set  it  out  in  full : 

"Know  all  men  by  these  presents,  that  we, 
William  Hancock  and  Isabella  B.  Hancock,  his 
wife,  parties  named  in  the  following  mentioned 
coal  leases,  viz.:  First.  That  certain  coal  lease 
between  Jonathan  Hancock,  William  Hancock  et 
al.  with  the  I^high  Valley  Coal  Company,  dated 
the  1st  day  of  January,  A.  D.  18!»1,  and  re- 
corded in  the  recorder's  office  in  and  for  the 
county  of  Luzerne,  Pennsylvania,  in  Deed  Book 
No.  300,  page  314,  etc     Second.  That  certain 


coal  lease  between  David  Perkins,  William  Han- 
cock et  al.,  and  the  Mt  Lookout  Coal  Company 
dated  the  2l8t  day  of  February,  A.  D.  1SS9,  and 
recorded  in  the  aforesaid  Luzerne  county,  in 
Deed  Book  No.  315,  page  22.  Thinl.  That  cer- 
tain coal  lease  l>etween  William  Hancock  and 
wife  and  the  Mt.  Lookout  C!oal  Company,  dated 
the  27th  day  of  February,  1898,  and  recorded 
in  the  aforesaid  recorder's  office,  in  Deed  Book 
No.  314,  page  505,  for  and  in  consideration  of 
the  sum  of  one  dollar,  to  us  in  hand  paid  at  and 
before  the  sealing  and  delivery  hereof,  tlie  re- 
ceipt whereof  is  hereby  acknowledged,  do  by 
these  presents  assign,  transfer  and  set  over  nslo 
the  Miners'  Savings  Bank  of  Wilkes-Barre,  Pa., 
trustee,  its  successors  and  assigns,  all  oor  right, 
title  and  interest  in  and  to  the  aforesaid  tliree 
coal  leases,  and  in  and  to  the  measoages,  tene- 
ments and  tracts  of  land  the'r^  mentioned  and 
described,  as  well  as  all  the  coal  royalties  or 
rents  therein  secured  to  be  paid,  as  well  those 
now  due  as  those  hereafter  to  fall  due  thereon. 
TV>  have  and  to  hold  the  same  in  trust,  nerverthe- 
less,  for  the  following  uses  and  purposes,  vis.: 
To  receive  and  receipt  for  all  moneys  due  or 
hereafter  due  under  the  above-mentioned  coal 
leases,  or  any  of  them,  and  after  deducting  a 
reasonable  sum  for  the  costs  and  expenses  of 
this  trust,  to  distribute  and  pay  over  the  same 
as  follows:  First,  to  nay  to  William  Hancock, 
one  of  the  above-mentioned  assiniors,  three  hun- 
dred dollars  per  year  in  quarterly  installments 
of  seventy-five  dollars  each,  as  the  royalties  are 
paid  in;  second,  to  pay  one-fourth  of  the  bal- 
ance thereof  to  Isabella  B.  Hancock,  one  of  the 
assignors  hereof,  during  the  life  of  the  above 
named  William  Hancock,  and  after  his  death,  to 
pay  to  the  said  Isabplla  B.  Hancock,  sadi 
amount  as  she  would  be  entitled  to  receive  un- 
der the  intestate  laws  of  the  commonwealth  of 
Pennsylvania,  as  widow  of  the  said  William 
Hancock ;  third,  to  pay  the  balance  in  equal 
shares  to  William  James  Hancock,  Louise  B. 
Hancodc,  and  Anna  M.  Hancock  Smith,  their 
heirs  and  assigns— all  to  be  nayable  likewise 
quarterly  as  the  same  may  be  received  by  the 
said  trustee.  And  upon  the  further  trust,  to 
enforce  payment  of  all  royalties  due  or  to  fall 
due  under  the  said  leases,  by  due  process  of 
law  or  otherwise  as  in  the  said  leases  provided, 
and  to  enforce  performance  of  the  covenants  of 
the  said  leases  as  fully  as  the  said  William  Han- 
cock might  or  could  do  wer«  he  still  tlie  owner 
thereof,  and  the  title  still  remained  in  liim. 
This  assignment  is  to  be  irrevocable  during  the 
life  of  the  above  named  William  Hancock  and 
Isabella  B.  Hancock  and  the  life  of  the  sur- 
vivor of  them. 

"In  witness  whereof,  we,  the  above-named 
William  Hancock  and  Isab^la  B.  Hancock,  his 
wife,  have  hereunto  set  our  hands  and  seals  this 
nineteenth  day  of  November,  A.  D.  one  thousand 
nine  hundred  and  four  (1904). 

"William  Hancock.  [SeaU 

"Isabella  B.  Hancock.    [SeaL] 

"Merritt  Sax. 

"Anna  M.  Hancock  Smith. 
"Witness  as  to  the  signature  of  Isabdla  B.  Han- 
cock: 

"G.  F.  Townend." 

The  trustee  distributed  the  coal  rentals  and 
royalties  under  this  assignment  down  to  the 
death  of  Isabella  B.  Hancock,  the  surviving  as- 
signor on  the  9th  day  of  October,  1914,  accord- 
ing to  the  terms  of  the  assignment;  that  is, 
!F3U0  a  year  to  William  H.  liancock,  and  one- 
fourth  of  the  balance  to  Isabella  B.  Hancock 
during  his  life,  and  after  his  death  on  the  8th 
day  of  February,  1906,  one-third  to  Isabella  oni 
the  balance  in  equal  shares  to  their  three  chil- 
dren, Anna,  William,  and  Louise.  After  the 
death  of  Isabella  B.  Hancock,  the  trustee  eontin- 
ued  to  distribute  the  royalties  paid  under  the 


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Pa.) 


IN  RB  MURPHY'S  ESTATE 


935 


leases  two-ninths  to  Anna  M.  Hancock  Smith, 
two-ninths  to  William  James  Hancock,  and  two- 
ninths  to  Louise  B.  Hancock,  retaining  in  its 
hands  one-third  of  the  ag^egate  royalties  for- 
merly paid  to  Isabella  during  her  life,  which  is 
the  balance  shown  by  the  account  in  the  case 
stated,  the  "iropcr  distribution  of  which  is  the 
quration  now  before  the  court.  Isabella  B.  Han- 
cock, at  her  death  on  the  9th  day  of  October, 
1914,  left  a  will  dated  January  31,  1908,  in 
which  after  giving  specific  bequests  of  $100 
to  each  of  her  children,  William  and  Anna,  she 
gave  the  residue  of  her  estate  to  her  daughter 
Louise,  subject  to  certain  trusts. 

The  questions  for  the  court  as  set  forth  in  the 
ca^e  stated  are  as  follows : 

A.  What  estate  was  given  Isabella  B.  Han- 
cock? 

(ft)  lafe  estate  only,  or 

(b)  One-third  of  the  royalties  absolutely,  and 
therefore  to  whom  shall  the  trustee  pay  the  bal- 
ance on  hand? 

(c)  Is  there  a  difference  between  the  interests 
under  the  Lehigh  Valley  Coal  Company  lease  and 
the  other  leases? 

B.  Is  the  trust  a  continatng  one,  or  does  it 
terminate  with  the  death  of  Isabella  B.  Hancock? 

I.  If  the  court  shall  be  of  the  opinion  that 
Isabella  B.  Hancock  took  only  a  life  estate  in 
all  the  royaltips.  then  distribution  shall  be  made 
to  the  three  children  In  equal  shares. 

II.  If  the  court  shall  be  of  the  opinion  that 
Isabella  B.  Hancock  took  one-third  of  the  roy- 
alties absolutely,  then  distribution  of  said  fund 
shall  be  made  to  the  executor  and  ezecntriz 
under  her  will  for  distribution  to  the  benefi- 
ciaries therein  named. 

III.  If  the  court  shall  be  of  the  opinion  that 
Isabella  B.  Hancock  took  only  a  life  estate  in 
the  royalties  arising  under  the  i^bigh  Valley 
Coal  Company  lease  and  one-third  absolutely  in 
the  Mt.  Lookout  Coal  Company  leases,  then  dis- 
tribution to  be  made  in  the  proportions  above  set 
forth  between  the  parties  entitled  thereto. 

The  court  is  of  the  opinion : 

A.  That  Isabella  B.  Hancock's  estate  was  lim- 
ited to  a  life  estate  only  by  the  assignment,  and 
that  there  is  no  difference  in  this  respect  be- 
tween her  interest  under  the  Lehigh  Valley  Coal 
Company  lease  and  the  other  leases. 

B.  The  trust  was  revoked  bv  the  death  of 
Isabella  B.  Hancock.  It  follows  from  this  opin- 
ion that  distribution  shall  be  made  to  the  chil- 
dren in  equal  shares,  and  this  without  any  dis- 
tinction  between  the  leases. 

The  assignment  from  William  Hancock  and 
Isabella  B.  Hancock,  his  wife,  to  the  Miners' 
Savings  Bank  of  Wilkes-Barre.  Pa.,  trustee,  its 
successors  and  assigns,  was  of  all  their  right, 
title,  and  interest  in  and  to  the  three  coal  leas- 
es, and  in  and  to  the  tracts  of  land  therein  de- 
scribed, as  well  as  all  the  coal  royalties  or  rents 
therein  secured  to  be  naid,  as  well  those  now  due 
as  those  hereafter  to  tall  due  thereunder.  By 
this  assignment  William  and  Isabella  B.  Han- 
cock divested  themsdves  of  all  their  interest  in 
these  leases,  so  that  when  she  made  her  will  on 
January  31,  1908,  Isabella  had  no  interest  in 
the  leases'  or  the  land  described  therein,  or  the 
royalties  thereunder,  that  she  could  dispose  of 
by  will. 

The  intention  of  the  parties  as  expressed  in 
their  language  seems  free  from  doubt.  It  was 
to  secure  the  estate  to  their  three  children  in 
equal  shares,  subject  to  certain  life  payments, 
which  they  reserved  to  themselves.  It  was 
to  give  up  their  former  rights  in  the  leases  and 
the  coal,  and  substitute  therefor  other  rights 
specified  in  the  assignment,  to  wit,  on  the  part 
of  William,  to  substitute  for  his  interest,  which 
was  entire  and  absolute,  a  yearly  cash  payment 
of  $300  a  year;  on  the  part  of  his  wife,  to 
substitute  for  her  interest,   whether  dower  or 


such  as  the  intestate  laws  gave  her  in  her  hus- 
band's personal  estate,  a  cash  payment  of  one- 
fourth  the  royalty  during  his  life  after  his  $300 
was  deducted,  and  one-third  after  bis  death. 
The  trustee  was  to  pay  money,  and  when  they 
directed  the  trustee,  after  the  death  of  William, 
"to  pay  to  the  said  Isabella  B.  Hancock  such 
amount  as  she  would  be  entitled  to  receive  under 
the  intestate  laws  of  the  commonwealth  of  Penn- 
sylvania as  widow  of  the  said  William  Han- 
cock," they  meant  "such  amount"  of  money. 
It  was  a  rather  clumsy  method  of  measuring  the 
amount  of  money  to  be  paid,  to  wit  one-third. 
They  did  not  mean  that  the  trustee  was  to  con- 
vey a  one-third  or  other  interest  in  the  estate  to 
the  widow.  This  was  the  interpretation  of  the 
language  put  upon  it  by  the  widow,  for  she 
accepted  the  one-third  of  the  royalty  in  cash 
and  made  no  demand  for  a  conveyance  of  an 
interest  in  the  leases  or  the  coal. 

The  assignors  divested  themselves  of  their 
former  estates  during  the  term  of  the  trust,  and 
neither  had  anything  to  dispose  of  during  that 
term.  If  Isabella  had  died  first,  William  would 
have  continued  to  receive  $300  a  year,  nor  could 
h^  have  conveved  anv  interest  by  deed  or  will. 
William  derived  his  estate  by  descent  from  his 
father.  If  his  interest  in  the  coal  after  it  was 
leased  was  real  estate,  his  wife  had  a  dower  in- 
terest, which  could  only  be  released  by  her  own 
act,  but  which  she  released  when  she  executed 
the  assignment.  If  his  interest  was  personalty, 
he  could  convey  it  without  any  act  on  her  part, 
and  did  convey  it  when  he  executed  the  assign- 
ment. He  conveyance  was  absolute  during 
the  term  of  the  trust,  whidi  was  coterminous 
with  the  life  of  the  survivor.  On  her  death,  the 
trust  ended,  and  the  estate  passed  to  the  three 
children  in  equal  shares. 

The  lower  court  decreed  that  the  balance 
in  the  hands  of  Uie  trustee  be  equally  dis- 
tributed among  the  three  children  of  the 
creators  of  the  trust.  Louise  B.  Hancock 
appealed. 

Argued  before  BBOWN,  C.  J,  and  MES- 
TREZAT,  POTTER,  PRAZER,  and  WAD- 
LING,  JJ. 

Edmund  E.  Jones  and  William  C.  Price, 
both  of  Wilkes-Barre,  for  appellant.  J.  Q. 
Creveling,  of  Wilkes-Barre,  for  appellee. 

PER  CURIAM.  The  decree  in  this  case 
Is  affirmed,  at  appellant's  costs  on  the  opin- 
ion of  the  learned  court  below,  in  pursu- 
ance of  wliich  it  was  entered. 


(26g  Pa.  3S) 

In  re  MURPHY'S  ESTATE, 
(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  Attornet  and  Client  «s»154— Fees— De- 
duction FBOM  Funds. 

An  attorney,  who  has  money  in  his  hands 
which  he  has  recovered  for  his  client,  may  de- 
duct his  fees  from  the  amount,  and  payment  of 
the  balance  is  all  that  can  be  legally  demanded. 

2.  JuRT  (S=>12(1)— RioTiT  TO  Jury  Trial. 

Where  there  is  a  dispute  over  the  terms  of 
an  agreement  as  to  fees  to  be  paid,  the  client 
contending  that  the  attorney's  deduction  of  fees 
is  too  large,  the  question  is  one  of  fact,  and 
the  attorney  does  not  lose  the  right  to  jury  trial 
because  he  is  an  officer  of  the  court 

3.  Attorney  and  Client  «=>126(2)  —  Pro- 
ceedings—Rule. 

Petitioner,  allei^ng  that  she  had  received  a 
check  for  $4,500  from  the  executor  of  her  hus- 


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101  ATLANTIC  BBPOBTER 


(Pa. 


band's  estate  in  payment  of  part  of  her  sbarei 
thereof,  and  bad  iDdorsed  it  to  respondent,  an 
attorney,  who  deposited  it  to  his  account  and  | 
paid  petitioner  $2,500,  retaining  the  balance  aa 
compensation  for  his  services,  filed  a  petition  in 
the  orphans'  court  for  a  rale  to  show  cause  why 
respondent  should  not  pay  over  to  her  the  sum  of 
$2,000,  less  his  reasonable  fees  for  services  ren- 
dered, claiming  that  the  agreed  fee  did  not 
amount  to  ^,000.  Held,  that  the  orphans'  conrt 
has  no  jurisdiction  to  require  an  attorney  to 

Eay  hia  client  funds  which  have  come  into  his 
ands,  where  it  appears  that  the  attorney  has 
paid  over  part  of  such  fund  and  retained  the 
balance  aa  compensation,  and  there  is  no  alle- 
gation of  fraud  or  misconduct  on  the  ]?art  of  the 
attorney;  and  hence,  the  question  being  one  of 
fact,  the  petition  was  properly  dismissed,  the 
respondent  being  entitled  to  jury  trial. 

Appeal  from  Orphans'  Court,  Lackawanna 
County. 

In  the  matter  of  the  estate  of  Bernard  J. 
Murphy,  deceased.  Petition  by  Ella  Murphy 
for  rule  to  show  cause  why  George  F. 
O'Brien,  an  attorney  at  law,  should  not  pay 
over  to  petitioner  certain  funds  in  his  hands. 
B^om  a  decree  discharging  the  rule  to  shoiw 
cause,  petitioner  appeals.    Dismissed. 

The  facts  appear  In  the  following  petition 
of  Ella  Murphy: 
To  the  Honorable  M.  F.  Sando,  President  Judge 

of    the    Orphans'    Court    of    Lackawanna 

County: 
The  petition  of  Mrs.  Ella  Murphy  respectfully 
represents:  That  George  F.  O'Brien  is  a  duly 
qualified  attorney  practicing  chiefly  in  the  courts 
of  Luzerne  county,  state  of  Pennsylvania,  but 
is  a  registered  member  of  the  bar  of  Lockawan- 
na  county  and  of  the  bar  of  the  orphans'  court 
of  the  said  county;  that  your  petitioner  is  the 
widow  of  Bernard  J.  Murphy,  late  of  the  city 
of  Carbondale,  county  of  Lackawanna,  and  state 
of  Pennsylvania,  who  died  testate  and  whose 
will  was  duly  probated  in  the  register's  office  in 
said  county,  and  whose  estate  is  being  adjudicat- 
ed in  your  honorable  court;  that  shortly  after 
the  death  of  the  said  Bernard  J.  Murphy,  your 
petitioner  employe<i  the  said  George  F.  O'Brien 
as  her  attorney  to  represent  her  in  a  proceeding 
relating  to  the  administration  and  distribution 
of  tbe  estate  of  her  late  husband;  that  it  was 
agreed  then  and  there  between  the  said  George 
F.  O'Brien  and  your  petitioner  that  his  fee  or 
compensation  for  all  work  that  should  be  done 
for  and  on  her  behalf,  relating  to  the  protection 
of  her  interests  in  the  said  estate  and  the  se- 
curing of  her  share  therefrom,  should  not  exceed 
the  sum  of  $500;  that  your  petitioner  was  not 
the  administrator  or  executor  of  the  said  estate, 
and  that,  therefore,  the  said  George  F.  O'Brien 
had  nothing  to  do  with  conserving  the  affairs  of 
the  estate,  gathering  in  its  assets,  or  distribution 
to  the  creditors,  except  to  guard  the  interests 
of  your  petitioner;  that  under  tbe  advice  of  tlie 
said  Geon;e  F.  O'Brien  your  petitioner  elected 
to  take  against  tbe  will  of  the  decedent,  and 
that  tbe  proper  pr(x:eeding8  were  taken  by  the 
said  George  F.  O'Brien  to  secure  the  interests 
of  your  petitioner  in  that  belialf,  and  that  his 
action  in  this  regard  was  practically  all  that 
was  done  by  the  said  George  F.  O'Brien  for  or 
on  behalf  of  your  petitioner ;  that  such  proceed- 
ings are  simple,  perfunctory,  and  not  complicat- 
ed; that  the  procce<lings  were  so  proceeded 
with;  that  your  petitioner  was  awarded  out  of 
the  said  estate  the  sum  of  $4<500;  tliat  this 
sum  of  money  was  paid  to  her  by  a  check  drawn 
by  the  executor  in  the  office  of  Joseph  O'Brien, 
of  the  Lackawanna  bar,  in  the  Menrs  Building, 
city  of  Scranton,  said  check  being  payable  to 
her  order  and  being  handed  to  her  by  the  said 


Joseph  O'Brien  in  the  presence  of  her  then  at- 
torney, George  F.  O'Brien;  that  at  the  sug- 
gestion of  her  said  attorney,  George  F.  O'Brien, 
your  petitioner  and  the  said  George  F.  O'Brien 
proceeded  to  the  Hotel  Casey,  in  said  city  of 
Scranton,  where  your  petitioner  was  induced  by 
her  said  attorney,  George  F.  O'Brien,  to  indorse 
the  said  check  over  to  him,  the  said  George  F. 
O'Brien;  that  thereupon  the  said  George  F. 
O'Brien,  having  secured  possession  of  the  said 
check,  retained  the  same  and  delivered  to  your 
petitioner  his  own  personal  check  in  the  sum  of 
$2,500,  and  departed,  retaining  the  check  for 
$4,500;  that  this  was  done  against  the  protests 
of  your  petitioner;  that  the  said  George  F. 
O'Brien  subsequently  deposited  the  said  check 
of  $4,500,  and  has  received  the  money  thereon: 
that  he  has  thereby  retained  out  of  the  sum  of 
$4,500,  secured  from  your  petitioner,  tbe  sum  of 
$2,000;  that  demand  has  been  made  upon  him 
to  pay  over  to  your  petitioner  the  said  money, 
after  the  deduction  of  a  reasonable  fee,  but  the 
said  G«orge  F.  O'Brien  has  neglected  and  refus- 
ed to  pay  over  the  said  sum  of  money  to  your  pe- 
titioner or  ony  port  thereof. 

Wherefore  your  petitioner  prays  that  a  rale  be 
granted  upon  the  said  George  F.  O'Brien  to 
show  cause  why  he  should  not  pay  over  to  your 
petitioner  the  said  sum  of  $2,000,  or  such  part 
thereof  as  remains  after  the  deduction  of  such 
reasonable  fee  for  bis  services  as  to  your  honor 
may  seem  proper. 

Answer  of  George  F.  O'Brien: 
To  the  Honorable  M.  F.  Sando,  President  Judge 

of    the    Orphans'    Court    of    Lackawanna 

County: 
George  F.  O'Brien,  answering  the  petition  in 
above-entitled  case,  avers:  That  your  respond- 
ent is  a  qualified  attorney,  a  member  of  tbe  bar 
of  Luzerne  county,  and  of  the  Supreme  Court  of 
Pennsylvania.  That  Bernard  J.  Jilurphy,  late  of 
tbe  city  of  Carbondale,  died  on  April  24.  1914, 
testate,  leaving  to  survive  him  a  widow  and  no 
issue.  That  by  tbe  terms  of  the  will  of  the 
said  Bernard  J.  Murphy,  deceased  (which  will 
is  probated  in  the  office  of  the  resrister  of  wills 
of  Lackawanna  county,  to  No.  52  of  1914),  the 
said  BTlla  Murphy,  petitioner,  was  lett  Dut  a 
small  annuity.  'Hiat  shortly  after  the  death  of 
the  said  Bernard  J.  Murphy  the  petitioner  sent 
for  your  respondent  and  retained  him  to  repre- 
sent her  in  the  settlement  of  the  said  estate. 
That  on  the  advice  of  your  respondent  the  peti- 
tioner, Ella  Murphy,  elected  to  take  against  the 
will  of  her  deceased  husband,  Bernard  J.  Mur- 
phy, and  through  the  efforts  of  your  respondent 
she  was  awarded  by  your  honorable  court,  on 
Mardi  15, 1915,  the  sum  of  $5,300.  and  in  addi- 
tion thereto  one-half  the  balance  of  tbe  estate 
of  said  decedent,  which  In  all,  will  amount  to 
more  than  $20,000.  That  your  respondent,  who 
has  continued  to  represent  the  petitioner  since 
his  original  employment,  specifically  denies  that 
it  was  at  any  time  agreed  between  him  and  tbe 
petitioner  that  his  fee  or  compensation  for  all 
work  that  should  be  done  for  her  on  her  behalf 
relating  to  the  protection  of  her  interest  in  the 
said  estate,  and  the  securing  of  her  share  there- 
from should  not  exceed  the  sum  of  $500,  and 
avers  that  the  petitioner  agreed  to  pay  your 
respondent  for  his  services  the  sum  of  $2,000, 
and  in  addition  thereto  his  actual  expenses  in- 
curred by  reason  of  his  employment,  the  said 
sum  of  $2,000  to  be  paid  by  tbe  petitioner  out  of 
the  first  moneys  to  be  received  by  her  from  the 
said  estate.  'That  In  pursuance  of  said  agree- 
ment tbe  petitioner,  Ella  Murphy,  on  the  18th 
day  of  December,  1915,  did  knowingly  and  will- 
ingly pay  to  your  respondent  the  said  sum  of 
$2,000,  and  is  still  indebted  to  your  respondent 
tor  expenses  incurred  by  him  in  the  course  of 
his  employment,  and  for  legal  services  on  mat- 
ters not  connected  with  the  said  estate,  amount- 
ing to  $500.  Tliat  the  petitioner  made  no  com- 
plaint in  reference  to  the  fee  paid  by  her  to  said 


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OULLEN  ▼.  STOUOH 


937 


respondent  for  many  weeka  after  the  payment 
thereof,  or  until  the  middle  of  February,  1916, 
when  your  respondent  was  notified  by  counsel 
for  the  petitioner  in  these  proceedings  that  she 
was  dissatisfied  with  the  amount  paid  by  her  to 
your  respondent. 

Wherefore  your  respondent  prays  that  the  pe- 
tition in  this  case,  unjustly  brought,  shall  be  dis- 
missed, at  the  coats  of  the  said  petitioner. 

Motion  to  discharge  rule: 

Now,  to  wit,  August  28,  1916,  comes  George 
V.  O'Brien,  the  respondent  in  the  rule  granted 
in  the  above-stated  case,  and  by  his  attorneys, 
Charles  6.  Lenaban  and  David  J.  Reedy,  moves 
to  dismiss  the  rule  granted  on  him,  and  assigns 
therefor  the  followug  reasons:  (1)  The  court 
has  no  jurisdiction  of  the  person  of  George  F. 
O'Brien,  for  tbe  reason  that  he  ia  not  a  mem- 
ber of  the  orphans'  court  of  this  county.  (2) 
The  court  has  no  jurisdiction  of  the  subject-mat- 
ter in  controversy. 

Wherefore  the  respondent  praya  that  the  rule 
be  dismissed. 

Other  facts  appear  in  the  opinion  of  the 
Supreme  Court  The  court  discharged  the 
rule.    Petitioner  appealed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  FRAZBK,  and  WALLING, 
JJ. 

H.  W.  Mumford  and  E.  A.  De  Laney,  both 
of  Scranton,  for  appellant  Charles  B.  Len- 
ahan,  of  Wllkes-Barre,  David  J.  Reedy,  of 
Scranton,  and  John  T.  Lenaban,  of  Wllkes- 
Barre,  for  appellee. 

BROWN,  C.  J.  Appellant's  petition  In  the 
court  below  was  for  a  rule  on  the  appellee,  a 
member  of  the  bar,  to  show  cause  why  he 
should  not  be  ordered  to  pay  over  to  ber 
f2,000,  moneys  which  she  alleged  were  In 
bis  bands,  but  belonged  to  her,  less  such  sum 
as  tbe  court  might  adjudge  proper  for  pro- 
fessional services  rendered.  The  averments 
upon  which  the  appellant  relied  In  asking 
for  the  rule  appear  In  her  petition  for  It,  to 
be  found  in  tbe  reporter's  notes.  An  an- 
swer was  filed  to  the  rule  to  show  cause, 
and  this  was  followed  by  a  replication.  Be- 
fore any  testimony  was  taken,  appellee  mov- 
ed to  dismiss  the  petition,  for  tbe  reason 
tbat  tbe  court  bad  no  JurlsdlctloD  of  his  per- 
son or  of  tbe  matter  In  controversy.  From 
tbe  order  sustaining  that  motion  there  Is  this 
appeal. 

If  from  tbe  pleadings  it  bad  appeared  to 
tlie  court  below  tbat  the  appellee  had  misbe- 
haved himself  In  his  office  as  an  attorney 
pzactidng  before  it,  or  tbat  tbe  money  which 
he  retained  was  under  Its  Jurisdiction,  U 
clearly  could  have  punished  tbe  ofTendlng 
practitioner,  or  required  blm  to  turn  over 
the  moneys  in  bis  bands  to  tbe  estate  to 
which  they  belonged ;  but  no  such  situation 
was  presented,  and  the  court  correctly  held 
tbat  it  was  without  Jurisdiction  to  grant  re- 
lief to  tbe  appellant  If  she  was  mtitied  to 
any. 

[1-3]  Tbe  transaction  of  which  tbe  appel- 
lant complains  was  betweoi  ber  and  tbe  ap- 
pellee alone.    After  tbe  award  of  $4,600  to 


ber  out  of  tbe  estate  of  ber  deceased  hus- 
band had  been  paid  to  her  by  a  check  drawn 
to  her  order  by  the  executor,  and  delivered 
to  her,  that  sum  no  longer  formed  any  part 
of  the  estate  of  tbe  deceased,  and  tbe  or- 
phans' court  ceased  to  have  Jurisdiction  over 
it  After  receiving  the  check  she  Indorsed 
it  over  to  the  appellee,  her  attorney,  and 
there  is  no  averment  tbat  be  procured  It 
fronj  her  by  fraud  or  mistake.  He  deposit- 
ed It  to  his  own  credit  in  bank,  and  gave 
her  bis  check  for  $2,500,  retaining  the  bal- 
ance for  bis  services  under  a  distinct  aver- 
ment in  bis  answer  tbat  bis  retention  of  the 
$2,000  was  in  pursuance  of  an  express  con- 
tract between  him  and  tbe  appellant  tbat 
be  should  be  paid  tbat  sum  for  his  profes- 
sional services,  and,  in  addition  thereto,  bis 
actual  expenses  Incurred  in  acting  for  the 
appellee.  She,  on  the  other  band,  av«rs  tbat 
the  agreement  between  them  was  tbat  the 
compensation  for  bis  services  was  not  to  ex- 
ceed $500.  Tbe  controversy  between  ber  and 
him  is  in  no  manner  connected  with  tbe  ad- 
ministration of  Mnrpby's  estate,  over  which 
tbe  court  below  bad  Jurisdiction.  The  sim- 
ple question,  to  be  settled  In  a  proper  forum, 
is  the  amount  to  be  paid  by  one  living  per- 
son to  another  for  services  rendered.  Tbat 
question  can  be  settled  only  in  the  common' 
pleas.  The  terms  of  the  contract  are  in 
dispute,  and  what  they  really  were  Is  a  fact 
to  be  settled  In  tbe  common  pleas,  and  no- 
where else.  There  It  must  be  determined 
whether  the  contract  upon  which  tbe  appel- 
lee relies  was  entered  Into  by  tbe  appellant 
and  Is  a  consdonable  one,  under  all  tbe  facts 
In  tbe  case,  or  tbe  appellant  is  to  pay  no 
more  than  she  avers  was  the  contract  with 
tbe  appellee  for  bis  services. 

l^e  case  is  an  ordinary  one,  growing  ont 
of  a  contract  between  living  persons,  and 
neither  over  Its  disputed  terms  nor  the  par- 
ties to  it  has  tbe  orphans'  court  any  Juris- 
diction. "An  attorney,  who  has  money  In 
bis  hands  which  he  has  recovered  for  his 
client  may  deduct  bis  fees  from  tbe  amount 
and  payment  of  tbe  balance  is  all  tbat  can 
be  lawfully  demanded."  Balsbaugb  v.  Eras- 
er, 19  Pa.  05.  If  there  be  a  dispute  as  to 
tbe  termp  of  an  agreement  as  to  tbe  fees  to 
be  paid,  the  question  becomes  one  of  fact 
and  "a  man  does  not  lose  bis  right  to  trial 
by  Jury  because  be  is  an  attorney  at  law." 
In  re  Rule  on  R.  P.  Kennedy,  120  Pa.  497, 
008,  14  AU.  397,  396  (6  Am.   St  R^.  724). 

Appeal  dismissed,  at  appellant's  costs. 

(2S8  Pa.  IS6) 
CULLEai  V.  STOUGH. 

(Sapieme  Court  of  Pennsylvania.     May  14, 
1917.) 

1.  LiBEi.  AND  Slander  «=9l2S(2)— QtrBsrioif 

FOB  JUKT— AcnONABtE  WOBDB. 

In  an  action  for  slander,  the  question  wheth- 
er the  words  as  pleaded  in  plaintiff's  statement 
are  actionable  is  for  the  court 


or  otlier  csMs  ■••  Hune  topic  sad  KBT-MUilBER  In  ail  Key-Numbered  Digests  and  ladesee 

Digitized  by  VjOOQ IC 


938 


101  ATIiANTIO  REPORTER 


(Pa. 


2.  Libel  and  Slander  «b>100(1)— Pleading 
—Statement  ok  Claim— Limitation. 

In  an  action  for  slander,  where  the  state- 
ment of  claim  did  not  aver  that  plaintiff  was  a 
public  officer,  or  that  the  words  were  spoken  of 
him  with  reference  to  his  official  position,  the 
coart,  in  determining  the  legal  import  of  the 
words,  would  confine  their  application  to  the 
plaintiff  as  a  private  citizen,  and  at  the  trial  he 
could  not  enlarge  their  sense  to  make  them  refer 
to  him  as  a  public  officer,  without  an  amend- 
ment for  that  purpose. 

3.  Pleadino  *=»18—Stwficiency— Statute. 

Under  Procedure  Act  May  25,  1887  OP.  L. 
271),  plaintiff  in  his  statement  must  set  forth  his 
cause  of  action  with  accuracy  and  precision. 

4.  Libel  and  Slandeb  «=3lOO(l>— Statement 
OF  Claim— Evidence— Amendment. 

Plaintiff,  in  an  action  for  slander,  cannot 
extend  his  cause  of  action  by  testimony  not 
relevant  under  tlie  pleadings  without  an  amend- 
ment 

6.  Libel  and  Slandeb  «=»7(2)— Actionable 
WoBDs— WoBDs  Imputing  Crime. 

Words  not  imputing  a  crime  punishable  by 
indictment  are  not  actionable,  though  the  words 
need  not  impute  an  infamous  crime. 

6.  Libel  and  Slander  (8=»86(3)— Statement 
OF  Claim— Province  of  Court. 

In  an  action  for  slander,  it  is  not  the  prov- 
ince of  the  court  to  search  out  and  group  togeth- 
er from  the  different  parts  of  the  declaration  the 
fkcts  and  circumstances  and  adjudge  whether  a 
definite  crime  may  be  fairly  deduced,  but  the 
pleader  must  clearly  aver  the  crime  intended  to 
be  imputed  to  him. 

7.  Libel  and  Slander  «=>86(2)— Statemxitc 
OF  Claim— Innuendo. 

In  an  action  for  slander,  a  statement  of 
claim,  alleging  defendant's  language  in  a  gen- 
eral way,  should  contain  aq  innuendo  disclos- 
ing a  charge  of  some  indictable  offense. 

8.  Libel  and  Slander  ^=>123(1)  —  Action- 
able Words Indictable  Charge. 

When  words  charging  a  crime  are  qualified 
or  explained  at  the  time  of  speaking  so  as  to 
negative  an  indictable  charge,  the  court  may 
properly  award  a  nonsuit, 
ft.  Libkl  and  Slander  «=3l0(l)— Actionable 
Words— Imputation  of  Crime. 

The  statement  of  an  evangelist  at  a  public 
raligioos  meeting  that  if  it  were  not  for  plaintiff 
and  others  having  great  political  influence,  there 
-yvould  not  be  a  house  of  prostitution  open  in 
the  city  or  a  saloon  opened  after  midnight  or  on 
Sunday  did  not  charge  plaintiff,  not  alleging 
himself  to  be  a  public  officer,  with  any  indictable 
offense,  so  that  a  compulsory  nonsuit  was  prop- 
erly ordered. 

Appeal  from  Court  of  Gotnmon  Pleas,  Lu- 
Bome  Coonty. 

.  Trespass  for  Blander  by  William  J.  Cullen 
against  Henry  W.  Stough.  Prom  an  order 
refusing  to  take  off  a  nonsuit,  plaintiff  ap- 
peals. 'Aflirmed. 

The  following  is  the  opinion  of  the  lower 
court  sur  plaintiff's  motion  to  take  off  the 
nonsuit: 

This  is  an  action  of  trespass  in  which  the 
plaintiff  sought  to  recover  damages  for  alleged 
slanderous  words  spoken  of  him  by  the  defend- 
ant,, an  evangelist,  at  a  public  religious  meeting 
in  Hazlcton.  The  words  complained  of  are  as 
follows : 

"Harry  Jacobs  is  the  man  who  runs  your  city. 
1)0  you  know  him?  He  runs  the  Aniold  and 
Pilsen  Heim  Breweries,  He  is  general  manager, 
and  lie  is  one  of  the  bosses  that  runs  Jim  Har- 
vey and  things  down  at  city  hall.    He  runs  the 


whole  bunch  down  there.  Harvey  doea  not 
know  it,  but  there  may  be  some  exceptions. 
This  gang  holds  the  situation  and  I  tell  yon  so 
to-night.  "Big  Bill  Cullen,  he  is  another  boss. 
He  is  called  the  commissioner  of  public  safety, 
whatever  that  meana  He  teils  safcxnunen  when 
it  is  safe  to  run." 

"I  will  tell  you  another,  one  more  of  the  boss- 
es who  run  this  city.  Lfttle  John  Fierro. 
Fear-o,  Fear-o,  they  fear  him,  no  they  don't. 
Fierro,  that's  it.  He  is  the  Twelfth  ward  boss, 
the  man  who  runs  two  saloons,  and  who  brings 
things  through  for  License  through  booze  and 
beer,  though  not  through  water  like  the  other 
Fear-o's." 

"The  fourth  is  Max  Friedlander,  the  wholesale 
liquor  dealer.  I  want  to  lay  it  down  that  if  it 
were  not  for  Fierro,  Cullen,  Jacobs,  and  Fried- 
lander  there  would  not  be  a  house  of  prostitu- 
tion open  in  this  city  to-night  If  it  were  not 
for  them,  there  would  not  be  a  saloon  open  after 
midnight.  If  it  were  not  for  them,  not  a  saloon 
would  dare  to  open  on  Sunday.  There  would 
not  be  a  slot  machine  or  a  gambling  den  or  a 
poker  game  in  Hazleton  by  to-morrow  night  if 
it  were  not  lor  these  four. 

"I  lay  the  moral  condition  of  Hazleton  and 
the  vicious  things  here  at  the  foot  of  these  four. 
Let  them  take  up  the  gauntlet;  I  have  thrown  it 
down.  I  charge  them  with  being  responsible  for 
the  conditions  here,  and  I  say  tbey  are  the  real 
mayor  and  chief  and  council  and  ail  other  issues 
in  BO  far  as  politics  are  concerned  in  Hazleton." 

"You  must  break  the  strangle  hold  they  have 
upon  this  city's  throat  if  you  officials  can  en- 
force the  laws.  I  tell  you  what  this  city  and 
old  West  Hazleton  need  to-night  is  cleaning  and 
a  quickening  of  conscience  on  the  part  of  the 
citizens  to  get  things  so  that  you  can  have  a 
clean  city.  1  believe  Jim  Harvey  does  not  know 
that  he  is  being  made  a  monkey  of  by  these  men, 
but  I  tell  you  that  if  you  do  not  get  together 
behind  him  and  Turnbach,  three  months  after 
Stough  has  gone,  a  monkey  will  be  made  out  of 
Harvey  again.  You  must  stand  back  of  him  and 
help  him  to  enforce  the  laws,  or  the  three 
months'  period  will  show  that  what  I  say  wiU 
happen  shall  have  come  to  pass. 

"You  most  aid  them  or  you  will  never  break 
away  the  hold  of  the  gang  on  the  throats  of  the 
citizens  of  Haaleton.  I  tell  yon  preachers  the 
cue,  and  you  can  start  in  right  where  I  left  off. 
I'll  give  yon  some  more  to-morrow  night" 

That  the  defendant  uttered  those  words,  or 
equivalent  language,  at  the  place  mentioned  was 
shown  upon  trial,  and  was  not  denied. 

[i]  When  the  plaintiff  rested  we  granted  a 
nonsuit  for  the  reason  that  the  words,  as  pleaded 
in  plaintiff's  statement,  were  not  actionable. 
That  it  is  tjie  duty  of  the  court  to  decide  such 
question  is  settled.  M^as  v.  Johnson,  185  Pa. 
12,  39  Atl.  662. 

[2]  The  plaintiff's  right  to  recover  must  be 
ascertained,  in  the  first  place,  from  his  state- 
ment of  his  cause  of  action.  There  is  therein 
no  averment  that  be  occupied  any  official  posi- 
tion, nor,  in  consequence,  that  the  words  com- 
plained of  were  spoKen  of  him  in  relation  there- 
to. While  the  afBdavit  to  hold  to  bail,  made  by 
the  plaintiff,  set  forth  that  he  was  the  superin- 
tendent of  the  departmoit  of  public  safety  of 
the  city  of  Hazleton,  such  averment  was  omit- 
ted from  bis  statement  of  his  cause  of  action. 
It  follows  that  in  determining  the  legal  import 
of  the  words  constitating  the  cause  of  action, 
their  sense  must  be  confined  to  their  application 
to  the  plaintiff  as  a  private  citizen.  The  plain- 
tiff could  not,  upon  the  trial,  enlarge  the  sig- 
nificance of  the  words  80  as  to  make  them  refer 
to  him  as  a  public  officer;  that  is,  without  an 
amendment  for  that  purpose,  which  was  not 
asked. 

f31  Ever  since  the  Procedure  Act  of  May  25, 
18S7  (P.  L.  271),  it  is  held  that  the  plaintiff 


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SAUPP  ▼.  8TREIT 


939 


mast,  in  hU  atatement,  set  forth  hla  cause  of 
action  with  accuracy  and  precision:  Fritz  v. 
Hathaway,  136  Pa.  274,  19  Atl.  1011 ;  New- 
bold  V.  Pennock,  154  Pa.  601,  26  Ati.  606;  Mc- 
Cready  t.  Gans,  242  Pa.  864,  89  Atl.  459. 
And  the  proofs  must  correspond.  Stewart  v. 
De  Noon.  220  Pa.  154,  69  AU.  587 :  Perry  v. 
Penna.  R.  R.  Ca,  41  Pa.  Super.  Ct  591  (on 
paxe  60»). 

[4J  And,  further,  when  by  the  introduction  of 
testimony,  not  relevant  under  the  pleadings,  the 
plaintiff  seeks  to  extend  his  cause  of  action, 
such  testimony  will  not  be  effective,  in  the  ab- 
sence of  an  amendment.  Wilkinson  Mfg.  Co.  t. 
Welde,  196  Pa.  508,  46  Atl.  852. 

[5]  What  significance  then  had  the  words  de- 
clared upon  applied  to  the  plaintiff  as  a  private 
citizen?  We  thought,  as  expressed  by  us  orally, 
when  the  nonsuit  was  entered  that  they  imput- 
ed no  crime  punishable  by  indictment,  without 
which  in  slander,  differing  from  libel,  they  can- 
not be  held  actionable;  and  as  the  authorities 
are  clear  upon  this  point  we  have  bad  no  change 
of  mind.  Gosling  v.  Morgan,  82  Pa.  273 ;  Meas 
V.  Johnson,  185  Pa.  12,  39  Atl.  562.  Other  cas- 
es, showing  how  strictly  the  rule  is  applied,  are 
Lnkehart  v.  Byerly,  53  Pa.  418;  Harvey  v.  Boies, 
1  Pen.  ft  W.  12;  Findlay  v.  Bear.  8  Serg.  & 
R.  571;  Stees  v.  Kemble,  27  Pa.  112;  Evans  v. 
Tibbins,  2  Grant  (Pa.)  451 ;  Stitzell  v.  Reyn- 
olds, 67  Pa.  54,  5  Am.  Rep.  396.  The  only  qual- 
ification that  has  been  made  of  this  rule  in  this 
state  is  that  the  words  uttered  need  not  impute 
an  infamous  crime.  Davis  v.  Carey,  141  Pa. 
314,  21  AtL  633. 

[6]  The  plaintiff's  statement  contains  no  alle- 
gation that  the  words  spoken  of  him  by  the  de- 
fendant imputed  any  crime.  The  only  expres- 
sion approaching  it  is  the  following  detached 
sentence:  "That  by  virtue  of  said  utterances  he 
(plaintiff^  is  liable  to  prosecution  for  the  viola- 
tion of  the  ponal  and  criminal  laws  of  the  state 
of  Pennsylvania,  upon  the  charges  made  by  the 
said  Henry  W.  Stough."  It  was  not  alleged  that 
any  offense  punishable  by  indictment  was,  by  the 
defendant,  charged  agahist  the  plaintiff.  Nor 
was  a  specific  crime  mentioned.  It  was  held,  in 
Hoar  V.  Ward,  47  Vt.  657,  that  it  ia  not  the 
province  of  the  court  to  search  and  sift  and 
group  together  from  the  different  parts  of  the 
declaration  the  facts  and  circumstances  and  ad- 
judge whether  a  definite  crime  may  be  fairly  de- 
duced, but  that  it  is  the  duty  of  the  pleader  to 
aver  clearly  the  crime  intended  to  be  Imputed  to 
the  plaintiff. 

[7, 8]  The  plaintiff's  statement  did  not  con- 
tain, as  it  should  to  afford  a  recovery,  consider- 
ing the  generality  of  the  defendant's  language, 
an  innuendo  disclosing  a  charge  of  some  indict- 
able offense.  Lukehart  v.  Byerly,  53  Pa.  418. 
It  was  held,  in  Colbert  v.  Caldwell,  S  Grant 
Cas.  (Pa.)  181,  that  when  words  charfing  a 
crime  are  qualified  or  explained  at  the  time  of 
^leaking,  so  as  to  negative  an  indictable  charge, 
-which  toe  court  may  perceive,  and  in  view  of 
which  the  judge  would  be  bound  to  charge  the 
jury  were  not  actionable,  he  may  properly  award 
a.  nonsuit.  See,  also,  Pittsburgh,  Allegheny  ft 
Manchester  Pass.  Ry.  Co.  v.  McCurdy,  114  Pa. 
554,  8  Atl.  230,  60  Am.  Rep.  363.  The  words 
uttered  by  the  defendant,  taken  together,  nega- 
tive rather  than  affirm  the  idea  that  the  plain- 
tiff himself  conducted  any  of  the  places,  or  com- 
mitted any  of  the  acts  named. 

[9]  Applying  the  foregoing  principles  to  the 
plaintiff's  case,  we  think  it  is  evident  the  non- 
suit was  properly  entered.  He  had  not  pleaded 
that  the  words  uttered  by  defendant  were  spoken 
of  him  as  a  public  officer;  nor  had  he  specified 
any  crime  imputed  to  him.  The  most  that  can 
be  said,  accurately,  of  the  meaning  of  the  al- 
leged slanderous  words  is  that  the  plaintiff,  as  a 
private  citizen  credited  with  political  influence, 
countenanced  the  existence  of  houses  of  prostitu- 


tion and  the  other  evils  mentioned,  instead  of  ex- 
erting that  influence  for  their  suppression.  By 
no  80und_  reasoning  can  it  be  inferred,  as  claim- 
ed by  plaintiff's  connsel  when  the  motion  for  non- 
salt  was  being  argued,  that  the  defendant 
charged  the  plaintiff  with  fornication.  Nor  is 
any  other  criminal  offense  more  clearly  ascribed. 
Concede  that  upon  every  citizen  there  is  imposed 
the  moral  obligation  of  exercising  his  influence 
for  good,  in  his  community,  it  does  not  result  that 
his  failure  so  to  do  makes  him  liable  to  indict- 
ment. 

It  seems  clear  to  us  that  the  words  alleged 
against  the  defendant  as  slanderous  were  not 
actionable,  and  that  consequently  our  disposition 
of  the  case  was  right. 

The  rule  to  strike  off  tfa«  nonsuit  is  dis- 
charged. 

The  coiirt  entered  a  compulsory  nonsuit 
which  it  subsequently  refused  to  take  off. 
Plaintiff  appealed. 

ArKued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POrTBR,  FRAZER,  and  WAL- 
LING, JJ. 

Jobn  H.  Blgelow,  of  Hazleton,  Abram  Sals- 
burg,  and  F.  A.  McGuigau,  both  of  Wilkes- 
Barre,  and  John  J.  Kelley,  of  Hazleton,  for 
appellant.  Paul  J.  Sherwood,  of  Wllkes- 
Barre,  George  H.  Harris,  of  Hazleton,  and  R. 
W.  Archbald,  of  Scranton,  for  appellee. 

PER  CURIAM.  This  judgment  is  affirmed 
on  the  opinion  of  the  learned  judge  below, 
specially  presiding,  discharging  tlie  rule  to 
strike  off  the  nonsuit 


(268  Pa.  2U) 
SAUPP  et  al.  v.  STREIT  et  aL 

(Supreme  Court  of  Pennsylvania.     May  14, 
1917.) 

1.  Judgment  «=342(1)— Stbikiho  off  Judo- 
MBNT— TruE. 

If  a  judgment  is  irregularly  or  illegally  en- 
tered, there  is  no  time  limit  restricting  the 
court's  power  to  strike  it  off,  provided  it  is  not 
entered  adversely  after  a  hearing  or  a  trial. 

2.  Judgment  i8=>361— Vacation— Grounds. 

On  a  bill  in  equity  against  the  widow  and 
executrix  of  a  deceased  partner  and  against  her 
individually  and  against  two  other  defendants 
for  money  owing  the  partnership,  wherein  the 
attorneys  agreed  that  judgment  should  be  enter- 
ed against  the  defendants  for  a  certain  sum,  a 
judgment  against  the  widow  individually  would 
be  stricken  off  where  she  had  no  actual  knowl- 
edge that  she  was  to  be  individually  liable  and 
where  there  was  nothing  to  show  that  she  was 
liable  for  her  husband's  debts. 

Appeal  from  Court  of  Common  Pleas,  Blair 
County. 

Bill  In  equity  by  Frank  D.  Saupp,  Jr.,  ex- 
ecutor of  the  estate  of  Francis  D.  Saupp,  Sr., 
deceased,  and  Matilda  J.  Saupp  against 
Carolyne  Streit,  intermarried  with  Oliver 
Rotbert,  executrix  of  the  estate  of  George  F. 
Streit,  deceased,  and  others.  From  a  decree 
striking  off  the  judgment  against  Carolyne 
Streit  Rothert,  plaintiffs  appeal.  Appeal  dis- 
missed. 

The  following  is  the  opinion  of  Baldrige, 
P.  J.,  in  the  court  of  common  pleas: 


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101  ATLAJNTIO  REPORTER 


(Pa, 


On  or  about  the  20th  da^  of  June,  1880, 
George  F.  Streit  and  Francis  D.  Saupp,  Sr., 
entered  into  an  oral  agreement  of  copartnership, 
whereby  they  were  to  buy,  sell,  and  deal  in  real 
estate.  This  copcu-tnership  continued  until  the 
»th  day  of  July,  1905,  when  George  F.  Streit, 
one  of  the  partners,  died. 

On  the  27th  day  of  March,  1908,  a  bill  in 
equity  was  filed  in  this  county,  to  No.  645,  Oc- 
tober term,  1008,  wherein  l>ank  D.  Saupp,  Jr., 
executor  of  Francis  D.  Saupp,  Sr.,  deceased, 
and  Matilda  J.  Saupp  were  plaintiffs,  and  Caro- 
lyne  Streit,  intermarried  with  Oliver  Uothert, 
executrix  of  the  estate  of  George  F.  Streit,  de- 
ceased, Carolyne  Streit  Rothert,  widow  of  the 
late  George  F.  Streit,  deceased,  and  the  Central 
Trust  Company,  trustee,  were  defendants. 

In  the  ninth  paragraph  of  the  bill  the  plain- 
titb  aver  the  copartnersuip,  the  death  of  George 
F.  Streit,  and  that  thereafter  the  partnership 
was  dissolved.  The  eleventh  paragraph  avers 
that  in  the  conduct  of  the  copartnership  George 
F.  Streit  received  various  amounts  of  money 
for  the  use  and  benefit  of  the  partnership,  and 
never  rendered  an  account  thereof.  It  is  fur- 
ther averred  in  the  sixth  paragraph  that  on  the 
4th  day  of  August,  1905,  Francis  D.  Saupp, 
Sr.,  and  Carolyne  Streit,  widow  of  George  F. 
Stdt,  entered  into  an  agreement  with  the  CJen- 
tral  Trust  Company,  of  Altoona,  whereuuder  the 
trust  company  was  to  act  as  trustee  for  Fiaxi- 
cis  D.  Saupp,  Sr.,  and  for  the  estate  of  George 
F.  Streit,  deceased,  in  selling  and  conveying 
certain  property  owned  by  Saupp  and  Streit  es- 
tate. 

The  plaintiffs  prayed  for  an  accounting  of  all 
the  partnership  dealings  and  transactions  dur- 
ing the  life  of  George  F.  Streit,  and  for  a  foil 
and  true  account  of  the  partnership  by  the 
Central  Trust  Company,  and  for  a  dissolution 
of  the  partnership. 

The  record  does  not  disclose  any  objection 
raised  to  the  misjoinder  of  parties  by  includ- 
ing Carolyne  Streit  Rothert  as  widow  of  the 
deceased  partner,  nor  does  the  bill  aver  that 
the  widow  of  George  F.  Streit  was  a  member 
at  the  copartnership,  nor  that  she  was  indebt- 
ed thereto,  nor  that  she  in  any  wise  assumed 
the  payment  of  any  indebtedness  that  might 
have  been  due  from  George  F.  Streit  to  the 
partnership. 

An  answer  was  filed  by  the  defendants,  and 
on  March  1,  1909,  the  parties  through  their 
attorneys  fixed  the  indebtedness  of  Francis  D. 
Saupp,  Sr.,  and  George  F.  Streit  to  the  co- 
partnership, and  on  March  5,  1909,  filed  the 
followinj  stipulation,  to  wit :  "Now,  by  agree- 
ment of  counsel  the  scde  question  submitted 
herein  for  determination  by  your  honorable 
court  is,  whether  or  not  the  estate  of  the  late 
George  F.  Streit  is  liable  to  the  copartnership 
of  Streit  &  Saupp  for  the  payment  of  interest 
in  the  amount  of  $17,826.38,  as  claimed  by  the 
plaintiffs."  Thereafter,  to  wit,  on  April  28, 
1909,  the  court  filed  the  following  decree:  "It 
is  further  adjudged  and  decreed  that  the  inter- 
est be  surcharged  against  the  defendant  on  the 
sum  of  $22,854.33  from  the  0th  day  of  July, 
1905,  at  the  rate  of  6  per  cent,  to  the  date 
of  this  decree,  being  the  sum  of  $5,222.14,  for 
which  amount  judgment  is  directed  to  be  enter- 
ed, unless  exceptions  are  filed  thereto  within 
fifteen  days." 

Exceptions  were  filed,  and  the  court  modified 
its  decree  respecting  the  amount  of  interest. 
Accordingly  the  following  decree  of  court  was 
entered  of  record  :  "And  now,  to  wit,  this  25th 
day  of  September,  A.  D.  1911,  on  motion  of  J. 
Banks  Kurtz,  counsel  for  plaintiff,  the  prothono- 
tary,  for  the  purpose  of  carrying  out  Uie  provi- 
sions of  the  stipulation  of  counsel  for  plain- 
tiffs and  defendants  herein  filed,  is  authorized 
and  directed  to  enter  judgment  in  favor  of  the 
late  partnership  of  Francis  D.  Saupp,  Sr.,  and 
George  F.  Streit.  and  against  the  plaintiffs  in 
die  sum  of  $11,734.93,  with  interest  thereon 


from  August  1,  1906,  and  against  the  defend- 
ants in  the  sum  of  $36,407.58,  with  interest 
thereon  from  August  1,  1905,  which  amounts 
represent  the  indebtedness  of  the  estates  of  the 
late  Francis  D.  Saupp,  Sr.,  and  George  F. 
Streit  to  the  copartnership,  as  fixed  and  deter- 
mined by  their  respective  counsel  in  the  stip- 
ulation filed,  as  aforesaid,  and  was  in  excess  of 
the  amount  filed  in  the  court's  decree  under 
date  of  May  17, 1910,  filed  in  these  proceedings." 

The  attorneys  for  plaintiffs  and  defendants  in 
writing  consenting  to  the  entering  of  the  fore- 
going decree,  judgment  was  thereupon  entered 
to  No.  364,  June  term,  19ll,  in  favor  of  the 
late  copartnership  in  the  sum  of  $36,405.58, 
with  interest  from  August  1,  1905,  and  "against 
the  defendants,"  including  Carolyne  Streit  Roth- 
ert in  her  individual  capacity.  A  sci.  fa.  was 
issued  to  revive  this  judgment  to  No.  41,  March 
term,  1915,  which  was  duly  served  upon  Caro- 
lyne Streit  Rothert,  whereupon  she  came  into 
court,  alleging  that  ^e  had  no  knowledge  of 
any  effort  to  make  her  incUvidually  liable  for 
the  payment  of  the  judgment  above  recited,  and 
that  the  averments  in  the  bill,  end  the  prayer 
for  relief  did  not  justify  a  judgment  being  en- 
tered against  her,  and  therefore  prayed  that  the 
judgment  be  opened  up,  and  also  that  it  be 
stricken  from  the  record  in  so  far  as  it  affects 
her,  contending  that  the  judgment  is  irregular 
on  its  face  and  was  imi^ovidently  entered  m  so 
far  as  she  Carolyne  Streit  Rothert  is  concerned. 

[I]  The  plaintiffs  contended  that  the  ob- 
jecting defendant  has  no  standing  in  this  pro- 
ceeding, that  her  remedy,  if  she  has  one,  is  by 
a  bill  of  review.  It  has  been  frequently  ruled 
in  this  state  that  if  a  judgment  was  irregularly 
or  illegally  issued,  there  is  no  time  limit  re- 
stricting the  power  of  the  court  to  strike  off 
such  a  judgment,  providing  the  judgment  is  not 
entered  adversely  after  hearing  or  a  trial. 
Johnson  v.  Royal  Insurance  Co.  of  Liverpool, 
218  Pa.  423,  67  AU.  749:  Long  v.  Lemoyne 
Borough,  222  Pa.  311,  318,  71  Ati.  211,  212 
(21  L.  R.  A.  [N.  S.]  474).  The  court  in  this 
latter  case  says:  "As  a  general  rule,  a  judg- 
ment regular  on  its  face,  will  not  be  stricken 
off,  but  when  it  is  entered  wholly  without  au- 
thority, it  may  be  stricken  off,  for  it  is  no 
judgment  at  all  so  far  as  it  affects  the  rights 
of  the  defendants.  Bryn  Mawr  National  Bank 
V.  James,  152  Pa.  364  [25  Atl.  823].  This  judg- 
ment was  entered  wiUiout  authority,  and  the 
court  below  found  that  the  entry  of  it  had 
never  been  ratified."  In  the  case  at  bar  the 
judgment  was  entered  not  adversely,  but  by 
agreement 

[2]  There  is  not  the  slightest  intimation  from 
any  source  that  Carolyne  Streit  Rothert  was  a 
member  of  the  firm  when  the  indebtedness  arose, 
nor  is  there  any  averment  in  the  hill  that  the 
plaintiff  sought  to  hold  her  liable.  The  parties 
themselves  stipulated  that  the  sole  question  for 
determination  by  the  court  was  to  what  extent 
the  estate  of  George  F.  Streit  was  liable  to 
the  copartnership  of  Streit  ft  Saupp.  If  tlie 
purpose  was  to  make  Carolyne  Streit  Rothert 
in  her  individual  capacity  pay  the  debts  of  the 
copartnership  of  Streit  &  Saupp,  it  was  incum- 
bent up<»  the  plaintiff  to  sufficiently  allege  and 
prove  her  liability,  as  it  is  a  well-recognized 
fundamental  principle  in  equity  procedure  and 
pleading  that  every  fact  essential  to  entitle  the 
plaintiff  to  Uie  relief  he  seeks  must  be  averred 
in  the  bill,  and  the  decree  must  be  iu  conform- 
ity with  the  averments  and  proof.  Luther  v. 
Luther,  216  Pa.  1,  64  Atl.  868:  Spangler  Brew- 
ing Co.  V.  McHenry,  242  Pa.  522,  89  Aa  665. 
Not  only  the  bill  and  the  relief  sought  fail  to 
point  out  Carolyne  Streit  Rothert's  liability, 
but  the  parties  themselves  after  the  decree  of 
the  court  had  been  entered  apparently  recog- 
nized that  the  liability  was  confined  to  the 
George  F.  Streit  estate,  for  on  September  12, 
1912,  the  executor  of  Francis  D.  Saupp,  Sr., 
in  presenting  a  petition  for  the  appointmoit  ot 


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HOaSETT  y.  THOMPSON 


941 


a  receWer  sets  forth  "that  counsel  for  the  re- 
spective parties  in  this  suit  by  stipulation  filed 
on  the  1st  day  of  March,  1909,  agreed  that  on 
August  5,  1905,  Francis  D.  Saupp,  Sr.,  was 
indebted  to  the  partnevship  of  Streit  &  Saupp 
in  the  sum  of  $11,734.93,  and  on  said  date 
George  F.  Streit  was  indebted  to  the  said  part- 
nership in  the  sum  of  $36,407.58,  and  that  judg- 
ments have  been  entered  of  record  for  said 
amounts  against  said  parties."  Even  at  that 
date  there  is  no  intimation  but  that  the  in- 
debtedness was  that  of  the  George  F.  Streit  es- 
tate only,  no  hint  that  Carolyne  Streit  Koth- 
ert  was  expected  to  pay  any  part  of  it. 

We  are  at  loss  to  know  how  a  judgment  un- 
supported by  any  adequate  averment,  m  fact  no 
averment  at  all,  could  have  been  entered  except 
on  the  theory  that  because  Carolyne  Streit  Roth- 
ert  was  erroneously  joined  as  a  party  defend- 
ant that  that  of  itself  made  her  liable.  Judg- 
ment was  to  be  entered  as  stipulated  "against 
the  defendants."  What  defendants?  Would  the 
Central  Trust  Company,  a  trustee  appointed 
long  after  the  indebtedness  was  incurred,  but 
a  defendant,  be  also  held  liable  with  Carolyne 
Streit  Rothert?  Such  an  intention  is  inconceiv- 
able. Yet  if  she  as  a  defendant  must  help  pay 
this  judfTnent,  so  would  the  Central  Trust  Com- 
pany have  to  contribute  its  share. 

As  Carolyne  Streit  Rothert  bore  no  relation- 
ship to  the  firm,  and  no  liability  has  been  shown 
either  by  averment,  proof,  or  stipulation,  the 
judgment  in  so  far  as  it  affects  her  is  Illegal  and 
invalid  and  stricken  from  the  record. 

It  is  apparent  that  under  the  pleadings  in 
the  case  a  decree  against  "the  defendants  was 
not  warranted,  and  was  irregular  and  illegal. 
The  estate  of  George  F.  Streit  is  liable  for  and 
should  pay  this  indebtedness,  as  it  was  he  who 
incurred  it,  not  Carolyne  Streit  Rothert  indi- 
vidually. 

The  court  stmcli:  off  the  Judgment  against 
Carolyne  Streit  Rothert,  individuaUy.  Plain- 
tiffs appealed. 

Argued  before  BROWN,  C.  J.,  and  MBS- 
TREZAT,  POTTER,  STEWABT,  and  WALL- 
ING, J  J. 

R.  A.  Henderson,  of  Altoona,  James  B. 
Hlndman,  of  Pittsburgh,  and  J.  Banks  Kurtz, 
of  Altoona,  for  appellants.  O.  H.  Hewlt,  of 
Holliday^tnirg,  and  W.  Frank  Vaughn,  of  Al- 
toona, for  appellees. 

PER  CURIAM.  This  appeal  Is  dlstnissed, 
at  appellants'  costs,  on  the  opinion  of  the 
court  striking  off  the  Judgment  against  Car- 
oline Streit  Rothert  individually. . 


f258  Pa.  134) 

FORTE  V.  G.  B.  MARKLB  00. 

<Supreme  Court  of  Pennsylvania.     May  14, 
1917.) 

Master  and  Sebvant  <S=>286(19)— Evidence 
—Nonsuit. 
In  an  action  by  the  servant  of  a  mining 
company  for  injury,  when  struck  b^  a  car  sud- 
denly descending  a  slope,  while  his  back  was 
turned  towards  it,  while  unloading  a  car,  where 
there  was  no  evidence  as  to  the  cause  of  the  ac- 
cident, or  to  justify  a  finding  that  the  starting 
of  the  car  was  due  to  defendant's  negligence, 
a  compulsory  nonsuit  was  properly  ordered. 

Appeal  from  Court  of  Common  Pleas,  Lu- 
zerne County. 

Trespass  by  Alfonso  Forte  against  the  G. 
B.  Markle  Company  to  recover  damages  for 


personal  Injuries.  From  an  order  refusing  to 
take  off  a  compulsory  nonsuit,  plaintiff  ap- 
peals.   Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAL- 
LING, JJ. 

F.  P.  Slattery,  of  Wilkes-Barre,  N.  M. 
Curclo,  of  Hazleton,  and  Andrew  Hourigan,  of 
Wilkes-Barre,  for  appellant.  John  H.  Bige- 
low  and  G.  W.  Kline,  both  of  Hazleton,  and 
Joseph  A.  Mulhereh,  of  Wllkes-Barre,  for  ap- 
pellee. 

PER  CURIAM.  The  appellant  was  an  em- 
ploy6  of  the  appellee,  and,  while  unloading  a 
car  filled  with  rock  and  dirt,  another  car 
came  down  the  incline  on  which  he  was  work- 
ing and  struck  him;  his  back  having  been 
towards  the  descending  car.  For  the  injuries- 
sustained  this  action  was  brought.  In  which, 
after  plaintiff  had  closed  his  case,  a  com- 
pulsory nonsuit  was  entered. 

Nothing  in  the  testimony  could  have  Jus- 
tified a  finding  by  the  Jury  that  the  starting 
of  the  colliding  car  down  the  incline  was  due 
to  any  negligence  of  the  defendant.  If  the 
question  of  its  negligence  had  been  submitted 
to  the  Jury,  there  would  have  been,  as  the 
court  properly  held,  an  invitation  to  them  to 
guess  as  to  the  cause  of  the  accident,  and  to 
infer  negligence  against  the  employer  from 
the  mere  fact  of  its  happening.  For  this  rea- 
son the  case  was  not  for  them.  Snodgrass 
V.  Carnegie  Steel  Co.,  173  Pa.  228,  33  Atl. 
1104;  WoJdechowski  v.  Sugar  Refining  Com- 
pany, 177  Pa.  57,  35  AU.  596;  Alexander  v. 
Water  Company,  201  Pa.  252,  50  Atl.  991; 
Sandt  V.  North  Wales  Co.,  214  Pa.  215,  63 
AU.  596. 

Judgment  affirmed. 

(25S  Fa.  85) 
HOGSETT  et  al.  v.  THOMPSON  ct  aL 

(Supreme  Court  of  Pennsylvania.    May  7, 1917.) 

1.  EQumr  fl=»l— Courts— jDRisDicnoN. 

Pennsylvania  courts  do  not  possess  general 
chancery  powers,  but  exercise  only  such  as  have 
been  conferred  upon  them  by  statute. 

2.  Injunction   «=>43  —  Jueisdiction  —  Col- 
lection  OF  Money. 

Though  Act  June  16,  1S36  (P.  L.  784),  gives 
courts  of  common  pleas  equity  jurisdiction  for 
the  prevention  or  restraint  of  the  commission  of 
acts  contrary  to  law  and  prejudicial  to  the 
community  or  the  rights  of  individuals,  the  col- 
lection of  debts  cannot  be  enjoined  save  where 
the  creditor  is  clearly  and  undeniably  proceed- 
ing, against  right  and  justice,  to  use  the  pro- 
cesses of  the  law  to  the  injury  of  another. 

3.  Receivbbs  «=>21— Appointment— Individ- 
uals. 

'  While  the  supervision  and  control  of  part- 
nerships and  corporations  are  recognized  sub- 
jects of  equity  jurisdiction,  the  administration  of 
affairs  of  an  individual  sui  juris  and  compos 
mentis  is  not,  and  the  fact  that  he  is  unable 
to  meet  his  obligations  does  not  alone  warrant 
the  appointment  of  a  receiver  for  his  property, 
or   the   issuance   of   an   injunction    restraining 


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creditora  from  attempting  to  collect  their  claims 
b7  legal  process. 

4.  Gbeditobs'  Suit  la    '  1    Natub*  of  Rkkedt 

— EXBCUTION. 

A  creditor's  bill  is  always  in  aid  of  execu- 
ticm,  and  will  not  lie  when  there  is  an  adequate 
remedy  at  law,  its  purpose  being  to  satisfy  a  debt 
out  of  the  equitable  estate  of  the  debtor  which 
ia  not  liable  to  execution  at  law,  or  out  of  some 
property  beyond  reach  of  ordinary  process. 

6.  BSCKJVERS  4=39— Appoihtment. 

Unsecured  creditors  of  an  individual  filed  a 
bill  in  equity,  alleging  that  the  defendant  debtor 
bad  assets  consisting  of  unimproved  coal  lands 
of  enormous  value  which  were  the  subject  of  in- 
cumbrances amounting  to  $15,000,000;  that  he 
was  indebted  to  unsecured  creditors  in  the  sum 
of  $7,000,000;  that  he  was  unable  to  meet  the 
indebtedness;  that  suits  had  been  filed  and  ex- 
ecution threatened  which  would  destroy  his  equi- 
ties in  the  various  properties  which  were  the 
only  assets  out  of  which  imsecured  creditors 
oonld  be  paid,  but  that  if  the  assets  were  ad- 
ministered under  the  direction  of  a  court  of 
equity,  sufficient  might  be  realized  to  pay  all 
debts.  The  bill  prayed  for  appointment  of  re- 
ceivers and  for  an  injunction  to  restrain  all  cred- 
itors from  proceeding  at  law  against  the  debt- 
or's assets.  The  defendant  admitted  the  facta 
alleged  in  the  bill  and  receivers  were  appointed, 
and  creditors  allowed  to  reduce  their  claims  to 
judgment,  but  enjoined  from  issuing  execution 
against  the  defendant  debtor's  property.  A  judg- 
ment creditor  petitioned  for  leave  to  intervene 
and  for  leave  to  pursue  the  usual  legal  remedies 
for  collection  of  her  judgment.  Held,  that  as 
simple  contract  creditors  who  have  no  judgment 
against  or  liens  upon  the  prooerty  of  an  in- 
dividual, or  any  equitable  interest  in  his  assets, 
have  no  standing  to  pray  for  appointment  of  a 
receiver,  eanecially  where  such  acts  might  prej- 
udice the  rights  of  lien  creditors,  the  court  of 
common  pleas  was  without  authority  to  appoint 
receivers  for  the  property  of  the  defendant  debt- 
or, and  a  judgment  creditor,  petitioning  for  leave, 
was  entitled  to  proceed  at  law  for  the  collection 
of  her  judgment. 

Appeal  from  Court  of  Oommon  Pleas,  Pay- 
ette County. 

Bill  by  Fuller  Hogsett  and  another  against 
Joslah  V.  Thompson,  In  vrhlch  Elizabeth 
Kremer,  administratrix  of  Albert  C.  Kremer, 
petitioned  to  intervene.  From  a  decree  ap- 
pointing receivers  and  awarding  an  Injunc- 
tion, petitioner  appeals.    Reversed. 

Argued  before  BROWN,  C.  J.,  and  POT- 
TER, STEWART,  MOSCHZISKBIR,  FRAZ- 
ER,  and  WALLINO,  JJ. 

Charles  A.  Tnit  and  H.  S.  Dumbauld,  both 
of  Unlontown,  for  appellant  John  M.  Free- 
man, of  Pittsburgh,  IjouIs  Marshall,  of  Xew 
York  City,  H.  P.  Stambaugh,  of  Pittsburgh, 
Stnrgis  &  Morrow,  of  Unlontown,  and  Samuel 
Untermyer,  of  New  York  City,  for  appellees. 

POTTTER,  J.  On  January  19,  1915,  Fuller 
Hogsett  and  David  L.  Durr  filed  a  bill  in 
equity  against  Joslah  V.  Thompson,  in  the 
court  of  common  pleas  of  Fayette  county, 
praying  for  the  apjwlntraent  of  a  receiver  for 
The  property  of  Mr.  Thompson.  It  was  al- 
leged in  the  bill  that  the  defendant  bad 
assets  consisting  largely  of  unimproved  coal 
lands,  of  the  value  of  $70,000,000,  which 
were  pledged  and  mortgaged  to  the  amount 


of  $15,000,000,  and  that  be  was  further  in- 
debted to  unsecured  creditors  In  the  sum  oC 
$7,000,000;  that  the  defendant  was  unable 
to  meet  his  Indebtedness  as  it  became  due, 
and  that  suits  were  entered,  and  executt<His 
threatened,  which  would  sweep  away  his  eq- 
uities In  the  various  properties,  which  were 
the  only  assets  out  of  which  the  unsecured 
creditora  could  be  paid,  and  that,  by  reason 
of  enormous  prior  incumbrances,  executions 
would  be  of  no  avail.  It  was  alleged  that.  If 
the  assets  could  be  preserved  from  sacrifice, 
and  sold  under  the  direction  of  a  court  of 
equity,  sufllclent  might  be  realized  to  pay  all 
of  defendant's  debt&  When  the  bill  was 
filed,  defendant  filed  an  answer,  admitting 
the  facts  to  be  as  averred.  After  hearing, 
the  court  appointed  receivers  and  Issued  an 
injunction,  restraining  ail  creditors  from  en- 
tering suits.  Issuing  executions,  or  interfer- 
ing in  any  way  with  the  property  In  the 
bands  of  the  receivers.  Afterwards  the  court 
modified  Its  decree,  so  as  to  permit  creditors,, 
who  so  desired,  to  enter  suit  and  prosecute 
the  same  to  judgment  On  February  29, 
1916,  Elizabeth  Kremer,  administratrix,  re- 
covered a  Judgment  against  defendant  for 
$3,698.98,  and  filed  her  petition  to  intervene, 
and  asked  for  permission  to  pursue  the  usual 
legal  remedies  for  collecting  her  judgment 
On  August  1,  1916,  the  court  made  an  order 
refusing  permission  to  Intervene,  and  refus- 
ing to  modify  the  original  decree.  Excep- 
tions were  filed,  which  were  overruled,  and 
the  decree  of  August  1,  1916,  was  confirmed 
and  made  absolute.  Petitioner  has  appealed, 
and  the  fundamental  question  raised  by  the 
assignments  of  error  is  whether  the  court 
below  had  jurisdiction  to  appoint  receivers 
for  the  property  of  Mr.  Tliompson,  an  indi- 
vidual, and  to  restrain  his  creditors  from 
proceeding  to  collect  their  lawful  claims. 

[1,  2]  That  the  courts  of  Pennsylvania  do 
not  possess  general  chancery  powers,  but 
exercise  only  such  as  have  been  conferred 
upon  them  by  statute,  has  repeatedly  been 
pointed  out.  Davis  r.  Gerhard,  S  Whart 
468 ;  Gilder  v.  Merwin  et  aL,  6  Whart  522 ; 
Dohnert's  Appeal,  64  Pa.  Sll;  Brideshur«r 
Mfg.  Co.'6  Appeal,  106  Pa.  275;  Pitcalm  r. 
Pltcaim,  201  Pa.  368,  60  Atl.  963. 

The  equity  jurisdiction  of  the  courts  of 
common  pleas  is  conferred  and  defined  by 
Act  June  16,  1836  (P.  U  780),  f  13,  and  a  few 
later  acts.  In  these  acts  the  courts  are  given 
no  express  power  or  control  over  the  prop- 
erty of  Individuals  who  are  sul  Juris  and 
compos  mentis,  except  under  circumstances 
which  do  not  exist  in  the  present  case.  The 
court  below  concedes  this,  saying: 

"The  petitioner  here  contends  that  there  is 
no  specific  statutory  authority  in  Pennsylvania 
for  the  appointment  of  receivers  for  the  estates 
of  individuals.    That  is  true." 

The  court,  however,  regarded  Its  action 
as  warranted  by  the  clause  of  the  act  of 
1S36,  giving  equity  jurisdiction  for  "the  pre- 


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Pa.) 


HOOSETT  T.  THOMPSON 


943 


Tendon  or  restraint  of  the  commission  or 
continuance  of  acts  contrary  to  law  and 
prejudicial  to  tbe  interests  of  tbe  communi- 
ty, or  the  rights  of  indlyiduals."  But,  as 
was  said  by  Sergeant,  J.,  in  Gilder  t.  Mer- 
win  et  al.,  6  Whart.  522,  641: 

"Tt  cannot  be  seriously  contended  that  the  is- 
suing execution  on  a  judgment  confessed  in  a 
court  of  law  is  an  act  contrary  to  law.  In- 
junctions on  CfluitDble  grounds  are  grantable  by 
this  court  only  where  they  are  incidental  to  the 
relief  prayed  for,  and  where  that  relief  is  with- 
in our  jurisdiction  by  the  acts  of  assembly." 

And  In  Winch's  App.,  61  Pa.  424.  426,  Mr. 
Justice  Agnew,  considering  the  same  danse, 
said: 

"The  Jurisdiction  given  to  a  court  of  equity 
for  the  prevention  or  restraint  of  the  commis- 
sion of  acts  contrary  to  law  and  prejudicial  to 
the  rights  of  Individuals  was  never  intended  to 
be  used  to  obstruct  the  collection  of  debts.  It 
is  only  where  the  creditor  is  clearly  and  unde- 
niably proceeding,  against  right  and  justice,  to 
use  the  process  of  the  law  to  the  injury  of  an- 
other, that  equity  intervenes  to  stay  his  hand. 
To  adopt  another  rulp  would  lead  to  a  constant 
use  of  the  powers  of  eouity  to  hinder  and  de- 
lay the  Collection  of  honest  claims,  and  to  '^re- 
vent  the  creditor  from  reaching  the  marrow  of  a 
fraud." 

In  Pairpoint  Mfg.  Co.  et  al.  ▼.  Philadel- 
phia Optical  &  Watch  Co.  et  al.,  161  Pa.  17, 
22,  28  Atl.  1003,  1004,  Mr.  Justice  Fell  said: 
"The  confession  of  judgment  to  the  appellant 
beinr  lawful,  the  only  remaining  reason  present- 
ed by  the  petition  for  interfering  with  the  writ 
of  execution  is  that  a  sale  can  be  more  advan- 
tageously conducted  in  the  interests  of  all  the 
creditors  by  the  receivers.  This  is  not  a  suffi- 
cient reason.  The  appellant  is  pursuing  the  reg- 
ular and  orderlv  course  for  the  collection  of  a 
judgment  lawfully  obtained  for  a  debt  admittedly 
due.  This  is  its  right.  The  interest  of  other 
creditors  may  be  affected  thereby,  but,  nntil  it  is 
shown  that  their  rights  are  violated,  no  one  has 
a  standing  to  challenge  the  appellant's  right  to 
use  the  means  provided  by  law  for  the  enforce- 
ment of  its  claim." 

Even  in  the  case  of  a  corporation  a  re- 
ceiver will  not  be  appointed  where  the  only 
effect  would  be  to  hinder  and  delay  the 
collection  of  valid  claims,  and  the  courts  are 
without  authority  to  make  such  an  appoint- 
ment. Bell  et  al.  v.  Wood  &  Co.,  to  Use  of 
Camden  Iron  Works,  181  Pa.  176,  181,  87 
Atl.  201. 

The  action  of  appellant  in  seeking  to  en- 
force her  claim  In  the  manner  provided  by 
law  is  certainly  neither  "contrary  to  law," 
nor  "prejudicial  to  the  interests  of  the  com- 
munity," nor  does  it  Infringe  on  "the  rights 
of  Individuals." 

[3-81  As  a  hill  merely  fbr  an  injunction  to 
restrain  legal  process  in  the  collection  of  a 
debt,  the  present  bill  cannot  be  sustained. 
An  inspection  of  tbe  bill  shows  that  it  was 
filed  for  the  express  purpose  of  securing  the 
nppointinent  of  a  receiver  for  the  assets  of 
an  individual,  and  to  provide  for  the  man- 
agement and  disposal  of  those  assets.  For 
such  a  purpose,  the  plaintiffs  in  tbe  original 
bill  have  no  standing  In  an  equity  court  of 
Pennsylvania.  The  supervision  and  control 
of  partnerships,  and  of  corporations,  are  rec- 


ognized heads  of  eault?  Jurisdiction,  bnt  the 
administration  of  the  affairs  of  an  individu- 
al, sui  Juris,  and  oompos  mentis,  Is  not. 

The  fact  that  an  individual  is  not  able  to 
meet  his  obligations  is  not  in  Itself  sufficient 
to  warrant  the  appointment  of  a  receiver  for 
his  property,  or  the  Issuing  of  an  injunction 
to  restrain  his  creditors  from  attempting  to 
collect  their  claims.  Other  equitable  cause 
for  relief  must  be  shown  to  Justify  the  In- 
terference of  a  chancellor.  The  plaintiffs  in 
their  bill  asserted  no  right  which  required 
the  aid  of  equity.  There  was  no  dispute  be- 
tween them  and  Mr.  Thompson,  and  no  issue 
was  presented  whl(a»  a  court  of  equity  had 
jurisdiction  to  determine.  The  relief  whldi 
they  sought  was  not  by  means  of  a  decree  de- 
termining any  matter  In  dispute  between 
Mr.  Thompson  and  themselves,  but  their  ob- 
ject was  to  prevent  other  persons,  not  parties 
to  the  bill,  from  taking  lawful  action.  The 
appointment  of  a  receiver  Is  only  incidental 
to  other  equitable  causes  of  relief  within  the 
statutory  grant  of  jurisdirtlon.  It  is  a  pro- 
visional remedy,  and  is  not  the  ultimate  end 
of  a  suit.  It  is  the  exercise  of  a  power  In 
aid  of  a  proceeding  in  equity.  In  the  pres- 
ent case  no  suit  was  pending  between  the 
parties  la  the  court  below  when  the  applica- 
tion for  the  appointment  of  a  receiver  was 
mad&  In  High  «»  Receivers  (4th  Ed.)  | 
17,  It  Is  said : 

"Ordinarily,  unless  perhaps,  in  tile  case  of  in- 
fants or  lunatics,  a  suit  must  be  actually  nend- 
ing,  to  Justify  a  court  of  equity  in  appointing  a 
receiver." 

These  plaintiffs  were  simple  contract  cred- 
itors, who  had  no  Judgments  or  Hens  upon 
the  property,  or  any  equitable  interest  In  any 
of  the  assets  of  the  defendant.  The  general 
rule  applicable  in  such  case  is  stated  in  Hlg^ 
on  Receivers  {4th  Ed.)  J. 406,  as  follows: 

"Having  already  shown  that  the  aid  of  a  re- 
ceiver is  extended  only  in  behalf  of  creditors  who 
have  fully  exhausted  their  remedy  at  law,  it 
follows  necessarily  that  the  jurisdiction  will  not 
be  exNcised  in  favor  of  mere  general  creditors, 
whose  rights  rest  only  in  contract  and  are  not 
yet  reduced  to  judgment,  and  who  have  acquired 
no  lien  upon  the  property  of  the.  debtor.  Courts 
of  equity  will  not  permit  any  interference  with 
the  right  of  a  debtor  to  control  his  own  prop- 
erty,_  at  tbe  suit  of  creditors  who  had  acquired 
no  lien  thereon,  and  whatever  embarrassment 
the  creditor  may  experience,  by  reason  of  the 
slow  procedure  of  the  courts  of  law.  must  be  rem- 
edied by  legislative  and  not  by  Judicial  author- 
ity. And  while  there  are  a  few  instances  where 
the  courts  have  maintained  a  contrary  doctrine, 
the  great  weifht  of  authority  supports  the  rule, 
that,  in  the  absence  of  statutory  provisions  to 
the  contrary,  a  general  contract  creditor,  be- 
fore judgment,  is  not  entitlod  either  to  an  in- 
junction or  a  receiver  against  his  debtor,  upon 
whose  property  he  has  acquired  no  Uen." . 

There  Is  no  ground  for  the  suggestion  that 
this  bill  is  in  the  nature  of  a  creditors'  bill. 
It  was  not  filed  to  enforce  payment  of  any 
Judgment  or  in  aid  of  an  execution  against 
the  defendant.  On  the  contrary.  Its  purpose 
was  to  prevent  the  seizure  of  any  of  his 
property   under   execution,   and  to   prevent 


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101  ATLANTIC  REPORTER 


(Pa. 


his  creditors  from  pnrsnlng  their  lawful  rem- 
edies for  an  Indefinite  time.  A  creditors'  bill 
Is  always  in  aid  <tf  an  execution,  and  it  will 
not  lie  where  there  Is  an  adequate  remedy 
at  law.  Its  purpose  Is  to  secure  satisfaction 
of  a  debt  out  of  some  equitable  estate  of  the 
debtor  whidi  is  not  liable  to  execution  at 
law,  or  out  of  some  property  beyond  the 
reach  of  ordinary  process.  In  the  present 
case  there  is  no  allegation  of  concealment  or 
fraudulent  disposal  of  any  of  the  assets  of 
the  defendant.  The  bill  Is  In  no  sense  of  the 
term  a  creditors'  bill,  and  the  authorities 
relating  to  creditors'  suits  of  that  nature 
hare  no  application  here. 

In  the  argument  of  counsel  for  appellees, 
it  is  suggested  that  the  Jurisdiction  for  which 
they  here  contend  was  upheld  by  this  court 
In  GaJey  v.  Guffey,  248  Pa.  523,  M  AH.  238. 
In  that  case,  the  court  of  common  pleas  of 
Allegheny  county,  upon  a  bill  filed  by  an  un- 
secured creditor  of  J.  M.  Guffey,  containing 
averments  to  the  same  effect  as  those  In  the 
present  bill,  and  an  answer  admitting  the 
facts  and  consenting  to  the  relief  prayed 
for,  appointed  a  receiver  for  the  property 
and  assets  of  defendant  and  enjoined  his 
creditors  from  selling,  transferring,  dispos- 
ing of,  or  interfering  in  any  way  with  such 
property  or  preventing  or  obstructing  the  re- 
ceiver in  the  performance  of  his  duty.  A 
mortgagee  of  one  of  defendant's  properties 
petitioned  the  court  for  leave  to  proceed  on 
his  mortage,  which  was  in  default  The 
court  refused  to  grant  such  leave,  and  the 
petitioner  appealed.  We  reveraed  on  the  ex- 
press ground  that  the  mortgagee  was  enti- 
tled, under  the  terms  of  the  mortgage,  to 
sue  It  out  and  take  the  mortgaged  premises 
in  execution,  and  that,  to  deny  him  this 
right,  would  be  to  impair  the  obligation  of 
the  contract,  whldi  was  beyond  the  power  of 
the  court. 

The  question  of  the  Jurisdiction  of  the 
court  below  to  entertain  the  bill  and  appoint 
the  receiver  does  not  appear  to  have  been 
raised  in  that  case,  and  it  certainly  was 
not  passed  upon  by  this  court.  Mr.  Justice 
Stewart  said  (248  Pa.  627,  94  Ati.  239): 

"We  have  before  us  the  single  question  wheth- 
er the  order  of  the  court  enjoinlnr  the  creditors 
of  J.  M.  Guffey  from  proceeding  by  law  to  en- 
force collection  of  the  debts  due  them,  so  long 
as  the  estate  is  in  the  hands  and  tinder  the  con- 
trol of  the  receiver  anpointed  by  the  court,  o"»r- 
ates  in  law  to  stay  the  hands  of  these  appellants. 
In  other  words,  the  question  rained  is :  Is  it 
within  the  power  of  the  court  to  restrain  these 
particular  creditors — and  we  are  here  concemeil 
with  no  other— because  of  the  appointment  of 
the  receiver  of  the  estate,  from  adoptlne  and 
applying  such  legal  remedies  as  are  allowed 
them  by  the  terms  of  their  contract,  and  at  such 
time  as  that  contract  by  its  terms  permits?" 

And  It  was  hdd  that  the  court  had  no 
such  power.  The  broad  question  of  the  pow- 
er of  the  court  to  appoint  a  receiver  for  the 
estate  of  an  individual  was  neither  consider- 
ed nor  decided  In  tliat  case. 


If  the  defendant  here  Is  solvent,  as  la 
alleged,  a  court  of  equity  has  no  power  to 
place  his  property  beyond  the  reach  of  his 
creditors,  or  to  ciijoin  them  from  resorting 
to  the  remedies  which  the  law  has  given  to 
them  for  the  protection  of  their  claims.  If 
he  is  insolvent  the  law  also  provides  appro- 
priate means  for  the  distribution  of  his  es- 
tate for  the  benefit  of  his  creditors.  It  fol- 
lows that  the  court  below  erred  in  appointing 
receivers  for  the  property  of  defendant,  and 
In  restraining  his  creditors  from  prosecuting 
suits  at  law  or  in  equity  against  the  defend- 
ant 

The  order  and  decree  of  the  court  below  are 
reversed,  and  the  bill  filed  for  the  appoint- 
ment of  receivers  Is  dismissed  for  want  of 
Jurisdiction  to  entertain  it  and  all  proceed- 
ings thereunder  are  vacated  and  set  aside; 
but  It  is  ordered  that  the  receivers  who 
were  Improperly  appointed  forthwith  file 
their  account;  the  costs  below  and  on  this 
appeal  to  be  paid  by  the  plaintiffs  In  the  orig- 
inal bill. 


(JSSPa.  97> 

HOGSETT  et  aL  v.  THOMPSON. 

(Supreme  Court  of  Pennsylvania.     May  7, 
1917.) 

Appeal  from  Court  of  Common  Pleas,  Fayette 
County. 

Bill  by  Fuller  Hogsett  and  another  against 
Josiah  V.  Thompson,  in  which  William  J.  K.Tle 
intervened  as  defendant.  From  a  decree  award- 
ing an  injunction  and  appointing  receiver,  the 
intervener  appeals.     Reversed.  

Argued  before  BROWN,  C.  J.,  and  POTTER, 
STEWART,  MOSOHZISKEIR,  FRAKER,  and 
WALLING.  JJ. 

Samuel  McClay  and  W.  A.  Seifert  both  of 
Pittsburgh,  Kyle  &  Reinhart  of  Waynesburg, 
and  Reed,  Smith,  Shaw  &  Beal,  of  Pittsburgh, 
for  appellant  John  M.  Freeman,  of  Pittsburgh. 
Louis  MarsbaU,  of  New  York  City,  H.  F.  Stam- 
baugh,  of  Pittsburgh,  Sturgis  &  Morrow,  of 
Uniontown,  and  Samuel  Untermyer,  of  New 
York  City,  for  appellees. 

POTTER,  J.  This  appeal  was  argued  with 
that  at  No.  1,  January  l%rm,  1917, 101  Atl.  941, 
as  the  fundamental  questions  involved  are  the 
same.  The  opinion  which  has  been  filed  in  that 
case  is  conclnstve  here,  and  the  same  decree  will 
be  entered.  The  first  and  second  assignments  of 
error  are  sustained.  The  order  and  decree  of 
the  court  below  are  reversed,  and  the  bill  filed 
for  the  appointment  of  receivers  is  dismissed  for 
want  of  Jurisdiction  to  entertain  it  and  all  pro- 
ceedings thereunder  are  vacated  and  set  aside; 
but  it  IB  ordered  that  the  receivers  who  were  im- 
properly appointed  forthwith  file  their  account; 
the  costs  below  and  on  this  appeal  to  be  paid 
by  the  plaintiffs  in  the  original  bill. 


(St  Pa.  13» 
BROOKVILLE  TITLE  &  TRUST  CO.  t. 
BEAVER  TRUST  (X). 

(Supreme  Conrt  of  Pennsylvania.     May  7, 
1917.) 

1.   JUDGMKRT  «=>10e(l)  —  RUUC  OT  COTJBT  — 

Dkath  of  Pabty. 
The  lower  court  would  not  enter  a  Judgment 
against  a  deceased  defendant  for  want  of  a  saffi- 


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BBOOEYILIiE  TITLE  A  TRUST  CO.  r.  BEAYER  TRUST  00. 


946 


dent  affidavit  of  defense  where  under  its  rules 
the  defendant,  had  he  lived,  might  at  any 
time  before  argument  have  filed  a  supplemental 
affidavit 

2.  ezecutobs  and  admini8tbat0b8  «=»443(2) 
—  Actions  —  Affidavit  of  Dbfknse  —  Peb- 
soNAL  Representative. 

In  a  suit  on  a  contract  made  by  decedent, 
his  personal  representative  is  not  required  to 
file  an  affidavit  of  defense  as  to  matters  arising 
before  the  decedent's  death. 

3.  JUDOMBNT  «=3l33  —  Ofxnino  Judoment  — 
Affidavit  of  Deixnse. 

In  an  action  against  the  indorser  of  a  note, 
a  rule  was  talten  for  judgment  for  want  of  a 
sufficient  affidavit,  and,  the  defendant  dying  be- 
fore the  rule  was  called  for  argument,  bis  ad- 
ministrator was  substituted  as  defendant,  and 
the  mle  for  judgment  was  made  absolute;  the 
rule  of  the  lower  court  as  to  motions  for  judgment 
for  want  of  sufficient  affidavits  of  defense  then 
providing  that  at  any  time  before  application 
for  judgment  defendant  might  file  a  supplemen- 
tal affidavit.  Held,  that  the  lower  court  did  not 
err  in  opening  the  judgment,  though  the  setting 
aside  of  the  judgment  would  have  been  a  more 
appropriate  remedy. 

Appeal  from  Court  of  Common  Pleas, 
Beaver  County. 

Suit  by  the  Brookvllle  Title  &  Trust  Com- 
pany agsdnst  John  Spencer,  In  which  after  hla 
death,  his  administrator,  Beaver  Trust  Com- 
pany was  snbstltated  as  party  defendant. 
From  a  judgment  making  absolute  defend- 
ant's rule  to  open  the  judgment,  plaintiff  ap- 
peals.   Appeal  dismissed. 

Argued  before  MESTBEZAT,  POTTER, 
STEWART,  MOSCHISKER,  and  FRAZER, 
JJ. 

W.  S.  Moore,  of  Beaver,  and  W.  N.  Conrad, 
of  Brookrille,  for  appellant  Lawrence  M. 
Sebrlng,  of  Beaver,  for  appellee. 


MOSCHISKER,  J.  John  Spencer  indorsed 
a  promissory  note  given  to  the  plaintiff  com- 
pany. Suit  was  brought  thereon  January  25, 
1015.  An  affidavit  of  defense  was  filed  Feb- 
ruary 10, 1015.  A  rule  for  judgment  for  want 
of  a  sufficient  affidavit  of  defense  was  entered 
March  8,  1016.  Spencer  died  on  March  16, 
1015,  beforo  this  rule  was  called  for  argu- 
ment Thereafter  the  Beaver  Trust  Company 
was  appointed  and  duly  qualified  as  admin- 
istrator of  his  estate;  on  June  14,  1015,  a 
suggestion  of  death  was  filed  in  the  present 
case,  and  Spencer's  administrator  was  substi- 
tuted as  defendant.  July  6, 1915,  the  rule  for 
judgment  was  placed  upon  the  argument  list, 
and  on  November  17, 1016,  It  was  made  abso- 
lute. November  18,  1016,  judgment  was  en- 
tered. November  22,  1015,  defendant  peti- 
tioned the  court  to  set  aside  the  judgment  on 
the  ground  that  it  was  unwarranted  in  law, 
and  the  petitioner  asked  also  that  the  judg- 
ment be  opened.    December  81,  1015,  the  lat- 


ter prayer  was  granted.  Plaintiff  has  ap- 
pealed. 

[1]  In  an  opinion  filed  with  the  order  ap- 
pealed from,  the  learned  president  judge  of 
the  court  below  states  that,  while  not  con- 
vinced of  the  sufficiency  of  the  affidavit  of  de- 
fense, yet  he  bad  concluded  that  the  death 
of  Spencer  abated  the  rule  for  Judgment,  and 
hence  the  court  was  without  authority  to  en- 
ter It  The  rule  of  the  court  below,  regulat- 
ing motions  for  judgment  for  want  of  suffi- 
cient affidavits  of  defense,  particularly  pro- 
vides that  they  may  be  set  for  argument  by 
either  party,  and  that  "at  any  time  before  it 
the  application  for  judgment  is  regularly 
called  for  argument  •  •  ♦  defendant 
may  file  a  supplemental  affidavit"  Under 
this  rule  of  court,  Spencer  might  have  sup- 
plemented his  afHdavit  at  any  time  up  to 
July  6,  1015,  had  he  then  been  living;  and, 
ex  necessitate,  his  prior  death  abated  the  rule 
for  judgment  against  him  for  want  of  a  suffi- 
cient defense.  In  other  words,  the  court 
could  not  enter  a  judgment  against  a  dead 
man,  in  a  case  like  the  present,  when,  under 
its  own  rules,  had  the  latter  lived,  he  might 
have  added  to  his  defense. 

[2]  It  Is  well  established  in  this  state  that, 
in  a  suit  on  a  contract  made  by  a  decedent, 
his  personal  representative  Is  not  required 
to  file  an  affidavit  of  defense  as  to  matters 
which  arose  before  the  demise  of  the  former. 
In  Seymour  et  aL  v.  Hubert,  83  Pa.  346,  348, 
citing  Lelbert  v.  Hocker,  1  Miles*  263,  this 
point  is  discussed.  We  there  say  that  the 
rule  just  stated  is  "Indispensable  to  protect 
interests  that  would  be  otherwise  defenseless, 
and  to  afford  security  to  creditors,  distribu- 
tees and  heirs" ;  and  we  add:  "A  dead  man's 
estate  would  be  in  utter  peril,  if  a  creditor 
could  convert  his  demand  into  a  judgment 
upon  no  proof  other  than  the  statement  of  his 
claim  filed  at  the  commencement  of  his  suit" 
It  is  to  be  noted  that  Leibert  v.  Hocker,  dted 
in  the  case  just  reviewed,  was  an  action 
against  the  executors  of  an  indorser  of  a 
promissory  note,  and  that  it  was  there  held 
an  affidavit  of  defense  was  not  required.  See, 
also,  Johnson  ▼.  Smith,  158  Pa.  668,  571,  28 
Atl.  144;  Mutual  Life  Ins.  Co.  of  N.  X.  v. 
Tenan,  188  Pa.  239,  241,  41  Atl.  539;  Perkins 
v.  Humes,  200  Pa.  235,  240,  40  AtL  034 ;  Helf. 
frlch  V.  Greenberg,  206  Pa.  516,  518,  56  Atl. 
46. 

[3]  Under  the  circumstances  at  bar,  we  are 
not  convinced  of  error  in  the  order  appealed 
from.  It  may  be  that  granting  the  prayer  of 
the  petition  to  set  aside  the  judgment  would 
have  been  a  more  appropriate  remedy,  but, 
since  the  practice  followed  is  not  complained 
of,  a  discussion  of  that  point  becomes  unnec- 
essary. 

The  appeal  is  dismissed. 


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101  ATLAJNTIC  REPORTBB 


(Fft. 


<2SS  Pa.  Vm 

In  re  WEST  MAHANOY  TOWNSHIP'S 
CONTESTED  ELECTION. 

Appeal  of  McGOT  et  al. 

(Supreme  Court  of  Pennsylvania.    May  14, 
1017.) 

1.  Elections  ®=»299(3)  —  Opening   Ballot 
Box— Fbaud. 

A  petition  in  an  election  contest  for  tlie 
opening  of  a  ballot  box  was  properly  refused, 
wbere  ^etitiuuur  failed  to  show  fraud,  irregu- 
larity, lUcgul  voting,  or  illegal  counting  of  votes. 

2.  Elect  IONS  «=>227(1)  —  Vauditt— Ibbeou- 

LABITIES. 

Mere  irregularities  in  conducting  an  election 
will  not  avoid  it,  even  though  the  election  oflS- 
cers  may  be  subject  to  punishment  for  miscon- 
duct, as  the  rights  of  voters  are  not  to  be  prej- 
udiced by  the  errors  or  wrongful  acts  of  such 
officers. 

3.  Elections   «=»229  —  Validity  —  Fbaudo- 
LENT  Votes. 

The  mere  casting  of  fraudulent  votes  is  not 
a  suiiicient  ground  for  throwiug  out  returns 
from  an  election  district,  the  remedy  in  sucb 
case  being  to  strilce  out  the  fraudulent  votes 
if  possible. 

4.  Elections  <S=>229—RETnRN9— Precinct. 

Wbere  no  election  is  legally  held  in  an  elec- 
tion precinct,  the  returns  therefrom  may  be 
thrown  out. 

6.  Elections  «:5»229  — Contest  — Thbo wind 
Out  Votes. 

Where  the  ballots,  tally  return  sheets  and 
supplies  in  an  election  precinct  were  tampered 
with,  the  records  were  illegally  kept,  and  voters 
were  threatened  before  the  election  and  on  elec- 
tion day,  and  prevented  from  voting,  and  were 
intimidated,  and  where  personal  attacks  were 
made  under  the  direction  of  the  election  officers, 
the  votes  polled  in  such  precinct  were  proper- 
ly striclten  out  in  an  election  contest 

Appeal  from  Court  of  Quarter  Sessions, 
SctauylltUl  County. 

Petitions  by  citizens  of  the  Township  of 
West  Mataanoy,  County  of  Schuylkill,  to  con- 
test the  election  of  Thomas  McCoy  and  Frank 
J.  Donahue  to  the  offices  of  school  directors 
In  such  tovi'nshlp.  From  an  order  declaring 
their  election  rold,  conteatees  separately  ap- 
peal.   Appeals  dismissed. 

Argued  before  BBOWN,  C.  J.,  and  MBS- 
TREZAT,  STBWABT,  MOSOHZISKBR,  and 
FRAZBB,  JJ. 

O.  S.  Berger,  of  Pottsville,  and  M.  M. 
Burke  and  P.  H.  Burke,  both  of  Shenandoah, 
for  appellants.  M.  J.  Byan,  of  Philadelphia, 
for  appellees. 

BROWN,  a  J.  At  an  election  bdd  No- 
vember 2,  1915,  two  school  directors  were  to 
be  elected  in  the  West  Mahanoy  township 
school  district,  Schuylkill  county.  There  are 
four  •  election  precincts  In  the  township — 
Lost  Creek,  William  Penn,  Brownsville,  and 
Itaren  Run.  Thomas  McCoy  and  Frank  J. 
Donahue,  the  appellants,  were  candidates  for 
school  directors  on  the  Democratic  ticket, 
and  John  D.  Edmunds  and  John  Cosgrove, 
the  appellees,  -  were  candidates  for  the  same 
office  on  the  Republican  ticket  McCoy  and 
Donahue  were  returned  as  elected,  but,  with- 


in the  period  fixed  by  the  statute  for  con- 
testing an  election,  qualified  electors  of  West 
Mahanoy  township  Instituted  a  proceeding 
to  contest  the  election  of  the  appellants,  on 
the  ground  of  fraud  and  gross  irregularities 
in  connection  with  the  election  In  the  Lost 
Creek  precinct.  This  proceeding  was  discon- 
tinued shortly  afterwards  by  counsel  for  the 
petitioners.  Subsequently,  on  the  iietitlon  of 
the  electors  of  the  townsUp,  the  discontinu- 
ance was  stricken  off  by  the  court,  and  the 
petition  for  the  contest  was  reinstated.  Aft- 
er a  full  hearing  and  the  taking  of  a  mass  of 
testimony,  the  court  decreed  that  the  election 
in  the  Lost  Creek  precinct  was  null  and 
void,  and  its  entire  returns  were  thrown  out. 
With  the  returns  from  that  precinct  not 
counted,  those  from  the  other  three  showed 
Edmunds  and  Cosgrove  to  be  elected.  From 
the  decree  so  holding,  McCoy  and  Donahue 
have  appealed. 

The  action  of  the  court  t>eIow  in  striking 
off  the  discontinuance  of  the  proceeding  in- 
stituted to  contest  the  election  of  the  appel- 
lants, and  In  reinstating  the  petition  of  the 
contestants  after  the  expiration  of  the  stat- 
utory period  within  which  a  contest  must  lie 
instituted,  has  not  been  assigned  as  error, 
and  we  do  not  therefore  pass  upon  the  au- 
thority of  the  court  to  reinstate  the  proceed- 
ing. 

[1]  This  appeal  brings  up  a  most  rolumi- 
nous  record,  and  there  are  92  assignments  of 
error,  but  the  sole  question  for  determination 
Ts  whether  the  court  erred  in  throwing  out 
the  returns  from  liost  Greek.  Before  passing 
upon  this  question  it  is  proper  tliat  we  say 
no  error  was  committed  in  refusing  to  open 
the  ttallot  box  from  the  William  Penn  pre- 
cinct upon  the  petition  of  the  respondents. 
They  failed  to  show  fraud,  irregularity,  il- 
legal voting,  or  counting  of  votes  in  that 
precinct,  which  called  for  the  opening  of  the 
box,  and  the  ninetieth  assignment  of  error 
is  overruled. 

[2-4]  For  mere  Irregularities  in  condix;ting 
an  election  it  is  not  to  be  held  void,  evoi 
though  the  election  officers  may  be  subject 
to  punishment  for  misconduct.  Tliis  is  so 
because  tlie  rights  of  voters  are  not  to  be 
prejudiced  by  the  error*  or  wrongful  acts  <^ 
the  officers  of  the  election,  unless  it  appears 
that  a  fair  election  and  honest  coont  were 
prevented.  Krickbanm's  Contested  Election, 
221  Pa.  521,  70  Atl.  862.  Nor  Is  the  mere  cast- 
ing of  fraudulent  votes  sufficient  to  throw  oat 
the  return  from  an  election  district  "Tlie 
remedy  in  such  case  is  to  purge  tiie  poiia  by 
striking  out  the  fraudulent  votes.  If  possible." 
Melvln's  Case,  68  Pa.  383.  But  where  no 
election  is  legally  held  in  an  election  pie- 
dnct,  the  returns  from  it  may  be  thrown  out. 

[5]  In  the  case  now  under  considentloa 
the  conditions  that  existed  at  the  electUm 
at  Lost  Creek  were  as  disgraceful  as  they 
are  inconceivable,  and  are  thus  properly  sum- 
marized by  the  learned  court  below,  after  a 


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COMMONWEALTH  t.  BREKNAK 


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review  of  tbe  testimony  and  tbe  facts  to  be 
found  from  it: 

"The  ballots,  tally,  return  sheets,  and  sup- 
plies generally,  were  tampered  with;  records 
were  irregularly  and  illegally  kept;  voters  were 
threatened  before  the  election  and  on  election 
day ;  were  prevented  from  voting ;  were  intimi- 
dated; coerced  and  not  allowed  to  vote  as 
they  wished ;  blackjacks  and  pistols  were  used, 
and  personal  attacks  made  on  legal  voters,  over- 
seers, and  watchers  while  in  the  performance 
of  their  duty.  All  of  this  was  done  by,  or  un- 
der the  direction  of,  the  election  offieera,  aided 
by  their  'buffer'  and  his  assistant." 

It  Clearly  appeared  from  the  testimony 
tbat  these  ruffians  intimidated  tbe  overseers, 
and  for  this  reason  tbe  court  below  was  ex- 
pressly authorized  to  throw  out  "all  votes 
polled  in  the  precinct."  Act  January  30, 
1874  (P.  U  33),  I  4. 

Each  appeal  is  dismissed  on  the  following 
correct  conclusions  reached  by  the  court  be- 
low: 

"Tbe  whole  election  was  illegally  and  fraud- 
ulently conducted.  The  number  of  voters  pre- 
vented from  voting  by  intimidation,  threats,  and 
violence,  and  the  number  of  voters  coerced  by 
interference  in  tbe  booths,  could  not  be  known, 
and  tbe  correctness  or  lenlity  of  tbe  vote  cast 
and  returned  could  not  be  ascertained.  There 
was  practically  no  election  or  opportunity  for 
the  voters  at  this  poll  to  express  and  have 
recorded  their  wish  or  choice  oy  their  ballot, 
and  there  is  no  possible  way  to  ascertain  the 
correct,  or  approximately  correct,  result  out  of 
this  seething  mass  of  corruption,  blackguardism, 
and  brute  force." 

Appeals  dismissed  at  costs  of  appellants. 


(2S8Pa.  U 

COMMONWEALTH  ex  rel.  ZERNHOLT  et  al. 
V.  BKENNAN  et  al. 

(Supreme  Court  of  Pennsylvania.    April  30, 
1917.) 

1.  Constitutional  IiAW  4s»24  —  Constbuo- 
TiON — Pre-existiko  Laws. 

As  the  constitutional  amendments  of  1909 
<8ee  5  Purdon's  Dig.  Supp.  [ISth  EM.1  p.  5197, 
par.  8),  together  with  a  schedule  adopted  for 
carrying  their  provisions  into  effect,  contemplat- 
ed that  general  elections  should  be  held  in 
evcn-numberd  years,  and  municipal  elections  in 
odd-numbered  years,  and  extended  the  terms  of 
officers  fixed  at  odd-numbered  years  to  an  even 
number,  all  acts  of  the  Legislature  theretofore 
in  force,  whether  general  or  special,  were  al- 
tered. 

2.  EiJcnoNs  ^=30— Statcte— Repeal. 

Act  June  10,  1911  (P.  h.  1047),  and  Act 
May  20,  I'.US  (P.  L.  268),  enacted  to  enforce  the 
constitutiuuol  amendments  of  1909  relating  to 
municipal  elections  and  terms  of  officers,  repeal- 
ed all  legislative  acts  relating  to  boroughs, 
whether  general  or  special,  inconsistent  there- 
with; the  first  act  declaring  that  it  should  apply 
to  every  borough  in  the  state. 

3.  Municipal    Cobporations    ^»124(1)    — 
Statutes— ApPLiCABrLiTT. 

General  Borough  Act  May  14,  1915  (P.  L. 
312),  relating  to  boroughs  and  election  of  munic- 
ipal officers,  does  not  apply  to  boroughs  which 
have  not  adopted  its  provisions. 

4.  Statutes  <g=»169— Repeal— Revival. 

A  borough  incorporated  by  Sp.  Acts  April 
«.  1850  (P.  L.  363),  and  Sp.  Act  April  12.  1807 
(P.  L.  1181),  did  not  adopt  tieneral  Borough 
Act  May  14,  1015  (P.  L.  312).  which,  after  re- 


pealing the  acts  of  1911  and  1913  declares  in 
chapter  1,  art.  1,  i  3,  that  the  repeal  of  an  act 
or  part  thereof  shall  not  revive  any  acts  or 
parts  thereof  theretofore  repealed  or  superseded. 
The  two  acts  repealed  had  repealed  all  prior  acts 
applicable  to  boroughs,  whether  general  or  spe- 
cuO.  Held  tbat  tbe  repeal  of  the  acts  of  1911 
and  1013  did  not  revive  the  earlier  special  acts, 
and  hence  defendants,  who  held  offices  of  coun- 
cilmen  under  an  election  had  under  the  acts  of 
1911  and  1913,  could  not  be  ousted  from  office  on 
the  theory  that  the  election  was  void,  and  tbat 
relators  were,  under  the  special  acts  incorporat- 
ing the  borough,  entitled  to  bold  office  until  their 
successors  were  elected. 

Appeal  from  Court  of  Common  Fleas, 
ScbuylkUl  County. 

Quo  warranto  by  the  Communwealtb,  on 
tbe  relation  of  Henry  Zemholt  and  another, 
against  Michael  M.  Brennan  and  others. 
From  an  order  sustaining  a  demurrer  and 
dismissing  the  writ,  relators  appeal.  Af- 
firmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAI/- 
LING,  JJ. 

Arthur  L.  Shay  and  Joseph  J.  Brown,  both 
of  Pottsvllle,  for  appellnnts.  C.  E.  Berger,  of 
PottsTille,'  for  appellees. 

FRAZER,  J.  Relators  have  appealed  from 
the  decree  of  the  court  of  common  pleas  of 
Schuylkill  county,  sustaining  a  demurrer  and 
quashing  the  writ  of  quo  warranto  brought 
to  oust  defendants  from  office  as  members  of 
council  of  the  borough  of  St  Clair.  The  bor- 
ough was  Incorporated  by  special  act  of  April 
6,  1850  (P.  I/.  363),  and  its  supplement  of 
April  12,  1867  (P.  U  1181),  under  which  the 
council  was  composed  of  nine  members,  three 
from  each  of  tbe  three  wards  Into  which  the 
borough  was  divided.  Their  term  of  office 
was  three  years,  and  so  arranged  that  one 
member  was  elected  by  each  ward  annually. 
Tbe  act  also  provided  that  members  should 
continue  to  hold  office  until  their  successors 
were  duly  appointed,  and  that  vacancies  be 
filled  by  the  remaining  members  until  the 
next  election. 

In  1909  Thomas  Lawless  was  elected  from 
the  south  ward  of  the  borough,  to  serve  three 
years  from  the  first  Monday  of  March  of  that 
year.  By  tbe  provisions  of  Act  June  19, 
1911,  I  5  (P.  L.  1047),  his  term  was  extended 
to  tbe  fliist  Monday  of  January,  1914.     In 

1910  Henry  Zemholt,  one  of  the  relators,  was 
elected  from  the  same  ward  to  serve  a  three- 
year  term,  which  period,  by  virtue  of  the 
provisions  of  the  act  of  1911,  was  extended 
to  the  first  Monday  of  January,   1914.     In 

1911  John  Quigley  was  elected  for  a  term  of 
four  years,  in  accordance  with  the  constitu- 
tional amendment  of  1909  and  the  act  of 
June  19,  1911,  fixing  the  term  of  office  of 
borough  councllmen  at  four  years.  The  term 
for  which  Quigley  was  elected  ended  accord- 
ingly on  the  first  Monday  of  January,  1016. 
He  resigned  In  March,  1913,  and  Walter 
Smith,  the  other  relator,  was  appointed  to  fill 


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the  vacancy.  It  thus  happened  that  at  the 
municipal  election  of  November,  1913,  three 
members  of  council  were  to  be  elected  for 
the  terra  beginning  the  first  Monday  of  Janu- 
ary, 1914;  one  to  fill  the  unexpired  term  of 
Quigley,  and  the  two  others  without  designa- 
tion of  term,  which  was,  however,  to  be  de- 
temined  by  lot,  in  accordance  with  the  provi- 
sions of  the  act  of  May  20,  1913  (P.  I*  268), 
amending  the  act  of  1911.  The  official  ballot 
failed  to  designate  the  candidates  for  the  un- 
expired term  of  Quigley,  left  vacant  by  rea- 
son of  his  resignation,  and  the  court  held  the 
election  illegal  and  void,  and  ousted  from 
office  the  three  persons  chosen  at  that  elec- 
tion. Following  the  entering  of  this  decree, 
liawless,  Zemholt,  and  Smith  resumed  their 
seats  as  members,  and  continued  to  act  until 
the  first  Monday  of  January,  1916.  At  the 
municipal  election  held  in  November,  1915, 
the  official  ballot  notified  electors  to  vote  for 
one  person  for  a  term  of  four  years,  and 
two  for  a  term  of  two  years  to  fill  the  unex- 
pired terms  of  two  persons  elected  In  1913, 
and  who  had  drawn  four-year  terms  at  the 
organlisation  of  council  on  the  first  Monday 
of  January,  1914,  but  whose  election  had 
been  declared  void.  The  election  of  1915  re- 
sulted In  the  dioice  of  re8p<Hidents  to  fill  the 
three  vacancies;  Brennan  for  the  four-year 
term,  and  Schuster  and  Hughes  for  two 
years  each.  These  candidates  qualified,  and 
entered  upon  the  duties  of  their  office,  and 
acted  therein  without  objection  until  April, 
1016,  when  these  proceedings  were  begun  to 
oust  them  from  office  on  the  ground  that  the 
ballot  was  defective,  for  the  reason  it  con- 
tained no  designation  of  a  three-year  term  as 
required  by  the  Incorporating  act  of  1850. 

[1-4]  At  the  hearing  counsel  for  relators 
conceded  the  effect  of  the  constitutional 
amendment  to  be  an  extension  of  the  term  of 
members  of  council  to  four  years  In  all 
boroughs,  contending,  however,  that  since  the 
acts  of  1911  and  1913  were  both  repealed  by 
the  general  act  of  May  14,  1915  (P.  L,  312), 
and  as  the  borough  of  St  Clair  has  not  ac- 
cepted the  benefits  of  the  act  of  1915,  or  of 
the  earlier  general  borough  act  of  April  3, 
1861  (P.  L.  320),  the  provisions  of  the  original 
charter  of  the  borough  were  again  In  force, 
and  that  the  voters  of  each  ward  must  be 
limited  to  the  election  of  one  member  of 
council  each  year;  and,  even  If  lawful  to 
elect  more  than  one  member,  the  offices  to  be 
filled  were  not  vacancies,  but  full  four-year 
terms  succeeding  the  hold-over  terms  of  re- 
lators, and,  consequently,  the  designation  of 
two  of  the  offices  as  two-year  terms,  to  fill 
the  unexpired  terms  of  those  whose  election 
in  1913  had  been  declared  void,  rendered  the 
ballot  Invalid. 

The  constitutional  amendments  of  1909,  to- 
gether with  the  schedule  adopted  for  carry- 
ing their  provisions  into  effect,  contemplated 
general  elections  being  held  in  even-numbered 
years,  and  municipal  elections  In  odd-num- 
bered years,  and  extended  the  terms  of  of- 


fice fixed  by  any  act  of  assembly  at  an  odd 
number  of  years,  so  as  to  make  the  period 
of  service  an  even  number  of  years,  and  fur- 
ther provided  that  changes  In  the  duration 
of  official  terms  made  by  the  Legislature 
should  thereafter  provide  for  an  even  num- 
ber of  years'  service.  These  amendments 
must  be  considered  as  altering  the  provisiona 
of  all  acts  of  the  Legislature  theretofore  tn 
force,  whether  general  or  special.  The  acta 
of  1911  and  1913  were  passed  to  further  cat^ 
ry  Into  effect,  or  put  In  operation,  the  con- 
stitutional provisions  above  referred  to ;  the 
former  containing  the  specific  provision  that 
it  should  apply  to  every  borough  In  the  coni- 
monwealth,  whether  governed  by  general  or 
special  acts  of  assembly.  The  general  bor- 
ough act  of  May  14,  1916  (P.  L.  312),  con- 
tains a  codification  of  the  laws  retatlng  to 
boroughs,  Including  the  election  of  munldpal 
officers.  The  borough  of  St  Olalr,  not  having 
accepted  the  provisions  of  this  act,  that  legis- 
lation cannot  be  considered  In  disposing  of 
the  present  case. 

Although  the  general  act  repeals  the  acta 
of  1911  and  1913,  chapter  1,  art  1,  {  3,  pro- 
vides that  the  repeal  of  an  act  of  assembly, 
or  part  thereof,  shall  not  revive  any  acts,  or 
part  thereof,  theretofore  repealed  or  super- 
seded, nor  affect  the  corporate  existence  of 
any  borough  heretofore  incorporated,  and 
that  any  person  holding  office  under  an  act  of 
assembly  repealed  by  the  act  of  1915  shall 
continue  to  hold  such  office  until  the  expira- 
tion of  the  term  for  whldi  he  was  elected, 
subject  to  the  conditions  attached  previous  to 
the  passage  of  the  act  of  1916.  If  we  should 
now  hold  that  the  repeal  of  the  acts  of  1911 
and  1913  reinstated  the  provisions  of  the  spe- 
cial acts  of  assembly,  under  wbidi  the  bor- 
ough of  St  Glair  was  incorporated,  the  uni- 
form plan  or  system  of  holding  elections  con- 
templated by  the  constitutional  amendments 
will  be  destroyed.  Elections  in  such  cases 
would  be  held  at  different  times,  and  the 
terms  of  ofllce  of  members  of  council  neces- 
sarily vary,  d^tending  upon  the  particular 
provisions  of  local  statutes.  Sach  conclasloii 
Is  Inconsistent  with  the  constitutional  amend- 
ments, and  statutes  passed  pursuant  thereto, 
providing  for  the  holding  of  general  elections 
in  even-numbered  years,  and  municipal  elec- 
tions in  odd-numbered  years,  and  fixing  the 
term  of  office  at  an  even  number  of  years. 
Counsel  for  plaintiff  admits  the  constitution- 
al amendment  extended  three-year  terms  to 
four  years,  and  that  a  municipal  election  can 
now  be  held  only  every  two  years.  If  this  be 
conceded,  the  same  reasoning  would  support 
the  conclusion  that  other  inconsistent  provi- 
sions of  the  local  acts  were  also  modified,  and 
that  the  borough  of  St  Olalr  has  now  the 
right  to  elect  more  than  one  member  of  coun- 
cil In  any  of  its  wards  at  the  same  election. 

Other  questions  are  sought  to  be  raised  on 
this  record,  especially  the  legality  of  the  bal- 
lot of  1916 ;  but  they  are  not  properly  before 
the  court,  and  do  not  call  for  decision.   The 


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COMMONWEALTH  v.  REESB 


949 


Buggestton  for  the  writ  Is  limited  to  tbe  ques- 
tion above  decided.  It  is  true  that.  In,  the 
notes  of  the  hearing  In  the  court  below,  print- 
ed In  the  appendix  to  appellant's  paper  book 
without  certificate  by  a  stenographer  or  by 
the  Judge  who  heard  the  case,  counsel  for  ap- 
pellant states  that  the  Informations  were 
drawn  by  other  counsel,  and  "there  will  have 
to  be  amendments  made"  to  cover  other  ques- 
tions raised,  but  so  far  as  appears  no  amend- 
ments were  filed.  They  do  not  appear  in  the 
appendix,  and  no  mention  Is  made  of  them  In 
the  "abstract  of  the  record  showing  the  exact 
questions  presented  for  the  decision  of  the 
court,  and  how  disposed  of,"  and  the  question 
Is  not  considered  by  the  court  below. 

The  above  disposition  of  the  case  covers  all 
questions  properly  raised  by  the  record  and 
necessary  for  decision,  and  furnishes  a  suffi- 
cient guide  for  the  borough  in  the  future.  It 
may  not  be  amiss  to  suggest  that  an  accept- 
ance of  the  act  of  1915  by  the  borough  would 
definitely  fix  all  charter  rights  and  tend  to 
prevent  recurring  litigation  after  each  elec- 
tion. 

The  Judgment  Is  affirmed. 


(268  Pa.  7) 
COMMONWEALTH   ex  rel.   KELLER  t. 
SCHERR  et  al. 

(Supreme  Court  of  Pennsylvania.    April  30, 
1917.) 

MunlCIFAI,  COEPORATIONS  ^9l24(4)  —  Ofti- 

CER8— Statutes— Repeaz« 
ThouKh  General  Bnrongh  Act  May  14,  1915 
(P.  K  312),  repealed  Act  Jnne  19,  1911  (P.  L. 
1047),  and  Act  May  20,  1013  (P.  L.  268),  relat- 
ing to  elections  of  municipal  officers  the  special 
acts  creating  the  borough  did  not  become  effec- 
tive, so  that  the  election  of  members  for  coun- 
cil must  be  for  four  years,  and  the  election  of 
more  than  one  candidate  in  the  same  year  would 
be  illegal. 

Appeal  from  Court  at  Common  Pleas, 
Schnylkin  County. 

Quo  warranto  by  the  Commonwealth,  on  the 
relation  of  Nicholas  Keller,  against  Oeorge 
P.  Scherr  and  another.  From  a  Judgment 
Bustalning  a  demurrer  and. quashing  the  writ, 
relator  appeals.    Afflrmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZBR,  and  WAL- 
TJNG,  JJ. 

Arthur  L.  Shay  and  Joseph  J.  Brown,  both 
of  Pottsvllle,  for  appellant.  O.  E.  Berger, 
of  Pottsvllle,  for  appellees. 

FRAZER,  J.  This  appeal  is  from  a  decree 
of  the  court  below,  quashing  the  writ  of  quo 
warranto  brought  to  determine  the  title  of 
respondmts  to  the  office  of  members  of  coun- 
cil in  the  borough  of  St.  Clair,  and  raises 
questions  we  have  discussed  in  the  preced- 
ing case  of  Commonwealth  ex  reL  v.  Brennan 
et  at.,  101  Atl.  947. 

At  the  municipal  election  In  November, 
1911,  Keller,  the  relator,  was  elected  a  mem- 


ber of  ooundl  from  the  north  ward  of  the 
borough  for  a  period  of  four  years.  At  the 
election  in  November,  1913,  two  persons  were 
elected  from  that  ward  without  designation 
of  terms,  and  upon  the  organization  of  coun- 
cil. Thorn,  one  of  the  candidates,  was  chosen 
to  serve  for  four  years,  and  Davis,  the  other, 
for  two  years,  In  accordance  with  the  provi- 
sions of  the  act  of  May  20,  1913  (P.  L.  268), 
amending  the  act  of  June  19,  1911  (P.  L. 
1047).  At  the  election  in  November,  1915,  the 
official  ballot  designated  two  members  were 
to  be  elected  in  that  ward  for  a  term  of  fbur 
years,  one  as  successor  of  the  relator,  whose 
term  would  expire  January  1,  1918.  Re- 
spondents were  duly  elected,  and  these  pro- 
ceedings were  instituted  by  relator,  alleging 
that  since  the  general  borough  act  of  Alay  14, 
1915  (P.  L.  312),  repealed  the  acts  of  1911 
and  1913,  the  special  acts  of  assembly  creat- 
ing the  borough  were  again  in  force,  and  un- 
der them  the  election  of  members  of  council 
must  be  for  a  term  of  four  years,  and  that  an 
election  of  more  than  one  candidate  In  the 
same  year  Is  Illegal.  These  questions  were 
tMth  answered  against  the  contention  of  re- 
lator in  the  opinion  in  the  preceding  case  of 
Commonwealth  v.  Brennan. 
The  Judgment  is  afflrmed. 


(268  p*.  ») 
COMMONWEALTH  ex  rel.  WHITBHOUSB, 
Dist.  Atty.,  V.  REESE  et  aL 

(Supreme  Coart  of  Pennsylvania.    AprQ  SO, 
1917.) 

Appeal  from  Court  of  Common  Please  Schuyl- 
kill Oounty. 

Quo  warranto  by  the  Commonwealth,  on  rela- 
tion of  C.  A.  Wbitebouse,  District  Attorney, 
against  William  A.  Reese  and  others,  to  oust 
them  from  office  as  members  of  the  council  of 
the  borough  of  St.  C3air.  Demurrer  to  8ugge»' 
tion  for  the  writ  siutained,  and  writ  quashed, 
and  relator  appeals.     Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MESTBB- 
ZAT,  POTTER,  FRAZER,  and  WAL- 
LINO,  JJ. 

Arthur  L.  Shay  and  Joseph  J.  Brown,  both 
of  Pottsvllle,  for  appellant.     C.  £3.  Berger,  of 

Pottsville,  for  appellees. 

FRAZER,  J.  The  facts  and  drcnmstances  in- 
volved in  tliia  appeal  are  similar  to  those  in 
Commonwealth  ex  rel.  v.  Brennan  et  al.,  101 
Atl.  947,  and  arose  out  of  a  dispute  concerning 
the  municipal  election  of  1915  in  the  middle 
ward  of  the  borough  of  St  Clair.  At  the  gener- 
al election  held  November  4,  1013,  there  were 
three  members  of  council  to  be  elected  from  that 
ward,  one  to  fill  the  unexpired  term  of  two  years 
of  Frank  Post,  temporarily  filled  by  council  and 
which  ended  in  1915,  and  two  to  succeed  John 
Dodds  and  Frank  Betz,  whose  terms  expired  in 
1914;  the  election  to  be  without  designation  of 
terms,  which  were  to  be  determined  according  to 
the  provisions  of  the  act  of  June  19,  1911  (P.  L. 
1047).  The  official  ballot  at  the  election  of  1913 
failed  to  designate  the  candidates  for  the  nnex- 
pired  term;  consequently  the  election  was  aft- 
erwards declared  void,  and  those  elected  ousted 
from  office.  Following  this  action  of  the  court, 
Betz  resumed  the  duties  of  his  office,  and  Fox 


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and  Kantner  were  appointed  by  conncil  to  fill 
the  remaining  two  yacanciea. 

At  the  municipal  election  in  November,  1915, 
successors  to  these  three  persona  were  to  be 
elected.  The  official  ballot  informed  electors  to 
vote  for  one  person  for  a  four-year  term,  and 
two  for  two  years  to  fill  the  unexpired  terms  of 
William  H.  Holmes  and  William  A.  Reese,  who 
had  drawn  four-year  terms  at  the  organization 
of  council  on  the  first  Monday  of  January,  1914, 
and  pursuant  to  the  election  of  1913,  subse- 
quently by  the  court  declared  void.  These  quo 
warranto  proceedings  followed  at  the  instance  of 
the  J^strict  attorney,  alleging  the  election  of  re- 
apondenta  to  be  invalid  for  the  reason  the  acts 
of  June  19,  1011,  and  May  20,  1913  (P.  L.  268), 
were  repealed  by  the  general  borough  act  of  May 
14,  1916  (P.  L  312),  and  that  elections  for 
members  of  conncil  in  the  borough  of  St.  Clair 
are  regulated  entirely  by  the  special  acts  creat- 
ing the  municipality  and  according  to  which 
such  officials  must  be  elected  for  a  three-year 
term,  and  but  one  each  year.  These  questions 
were  both  decided  against  the  contention  of  re- 
lators in  Commonwnlth  ex  reL  v.  Brennan  et 
aL,  supra. 

We  deem  unnecessary  the  consideration  of 
questions  relating  to  the  form  of  the  ballot  at 
the  election  of  1915,  since  no  complaint  of  de- 
fects is  made  in  the  information;  the  allegation 
being  confined  to  the  contention  that,  since  the 
repeal  of  the  acts  of  1911  and  1913,  not  more 
than  one  member  of  council  should  be  elected  in 
any  one  year  under  the  act  incorporating  the 
borough,  which  statute  it  is  argued  Is  again  in 
force,  and  such  election  must  be  for  a  three- 
year  term.  The  paper  book  of  appellant  in  this 
appeal  contains  nothing  but  the  information  and 
answer,  the  latter  in  eifect  a  demurrer,  and  only 
the  averments  therein  set  forth  are  before  us. 
Counsel  argues  that  an  amendment  to  the  infor- 
mation was  made  in  the  court  below,  but  not 
even  a  suggestion  of  it  appears  in  the  record 
of  this  appeal. 

Tlie  judgment  is  affirmed. 


(258  Pa.  108) 

In  re  BBRGDOIX'S  ESTATE. 


(Supreme  Court  of  Pennsylvania. 
1917.) 


May  7, 


1.  Trusts    9=>191(2)  —  Poweb    or    Saix  — 
Wills. 

Under  a  will  devising  the  residue  of  an  es- 
tate to  trustees  after  disposing  of  one-third  of 
the  realty  and  directing  them  to  pay  one-half 
of  the  income  of  two-thirds  of  the  realty  to  a 
son  and  the  remaining  one-half  to  three  grand- 
daughters for  their  lives,  and  providing  that  on 
the  conversion  of  any  realty  into  money,  one- 
third  of  the  proceeds  should  be  paid  to  the  son 
absolutely,  and  authorising  the  trustees  to  sell 
and  convert  all  or  part  of  the  realty  at  such 
times  and  in  such  parcels  as  they  might  deem 
best,  such  authority  to  sell  waa  equivaient  to  a 
positive  direction  to  sell,  because  of  the  neces- 
sity of  a  sale  to  carry  out  the  scheme  of  the 
wUI. 

2.  CoNTKKSiON  «=»15(4)  —  CoNBTBUcnoN   or 
Will. 

Under  such  will,  and  after  the  son's  death 
after  the  testator  leaving  a  widow  and  children, 
one-third  of  the  proceeds  of  the  sale  of  the  son's 
share  of  the  real  estate  went  to  his  widow  ab- 
solutely. 

Appeal  from  Orphans'  Court,  Philadelphia 
County. 

In  the  matter  of  an  accounting  In  th6  es- 
tate of  Iiouis  Bergdoll,  Sr.,  deceased.  From 
nn  order  dismissing  bis  exceptions  to  adjudi- 


cation   Louis    Bergdoll,    Jr.,    aiveals.      Af- 
firmed. 

The  facts  appear  In  the  following  opinion 
by  Dallett,  P.  J.,  In  the  oti;>haiis'  ooort,  sur 
exceptions  to  adjudication: 

This  testator  gave  the  residne  of  his  estate 
to  his  executors  as  trustees,  directing  them,  after 
the  disposition  of  all  of  his  personal  and  one- 
third  of  his  real  estate  as  he  had  indicated,  "to 
collect,  recover  and  receive  the  mts,  issues  and 
profits  thereof  and  to  pay  one-half  part  of  the 
rents,  issues  and  profits  of  said  two-thirds  of 
the  real  estate  to  my  said  son  Louis  Bergdoll, 
Junior,  and  the  remaining  one-half  part  there- 
of to  pay  to  my  three  granddaughters,  Elisabeth, 
Catharine,  and  Louisa  Schoening,  equally,  for 
and  during  the  terms  of  their  natural  lives 
respectively.  Upon  the  conversion  of  any  of 
my  real  estate  into  money  as  hereinafter  men- 
tioned, I  direct  the  proceeds  thereof  diall  be 
disposed  of  as  follows,  to  wit:  One-third  part 
thereof  shall  be  held  and  retained  by  said  trus- 
tees, In  trust  for  my  daughter,  Louisa  Alter, 
and  her  children  under  the  trusts  her^befot« 
declared  and  expressed  for  their  use  one  other 
third  part  thereof  shall  be  paid  to  my  son,  Loais 
Bergdoll,  Junior,  absolutely,  and  the  remaining 
one-third  part  thereof  shall  be  held  and  retained 
by  said  trustees  upon  the  same  trusts  as  above 
directed  for  the  use  and  ben^t  of  my  three 

g-anddaughtera,  Elizabeth,  Catharine  and  Lou- 
a  Schoening"— and  added:  "Tie  said  trusteisa 
and  the  survivors  and  survivor  of  them  are 
hereby  authorized  to  sell  and  convert  all  or  part 
of  my  real  estate  Into  money  at  such  time  or 
times  and  in  such  parcels  as  they  in  their  dis- 
cretion may  deem  best  for  the  advantage  of  mj 
estate,  and  whenever  the  said  trustees  shall  make 
public  or  private  sale  of  any  portion  of  my 
real  estate  they  are  hereby  authorized  and  em- 
powered to  make,  execute  and  deliver  to  the 
purchaser  or  purchasers  thereof  in  fee  simple 
good  and  sufficient  conveyances  for  the  same  free 
and  clear  of  all  trusts  and  of  the  legacies  and 
annuities  herein  given  and  discharged  from  all 
liability  on  the  part  of  such  purdiaser  or  pur- 
chasers to  see  to  the  application  of  the  pur- 
chase moneys." 

The  testator  died  on  August  10.  1894.  His 
son,  Louis  Bergdoll,  Jr.,  died  September  9, 
1896,  intestate,  and  leaving  to  survive  him  his 
widow,  Emma  C.  Bergdoll,  and  five  children, 
all  of  whom  are  living  and  of  full  age.  This 
is  the  fifth  accounting,  and  includes  the  proceeds 
derived  from  sales  of  real  estate  mad^  subse- 
quent to  the  death  of  Louis  Bergdoll,  Jr. 

[I]  The  exceptions  relate  to  the  andithw 
judge's  award  of  one-third  of  the  share  of  the 
proceeds  to  which  Louis  Bergdoll,  Jr.,  would 
be  entitled  were  he  living,  to  his  widow,  and 
two-thirds  to  his  five  children,  the  exceptant, 
a  son,  contending  that  the  fund  realised  from 
the  sales  should  be  treated  as  real  estate  and 
one-third  thereof  awarded  to  EJmma  C.  Bergdoll, 
Louis  Bergdoll,  Jr.'s  widow  for  life  only.  We 
believe  the  auditing  judge's  award  the  proper 
one.  It  will  be  noted  that  the  testator's  only 
gift  to  Louis  BergdoU,  Jr.,  after  a  gift  of  the 
rents,  issues,  and  profita  derived  from  residuary 
real  estate,  is  of  the  proceeds  derived  from  sales 
thereof,  and  as  well  that  the  discretion  given  the 
trustees  as  to  sales  relates  only  to  the  parcels 
in  which  real  estate  is  to  be  sold  and  to  the  time 
at  which  the  sales  are  to  be  made.  To  effect 
gifta  of  proceeds,  sales  must  at  some  time  be 
made.  The  inevitable  conclusion  is  that  while 
the  trustees  are  merely  authorized  by  the  will 
to  sell,  that  authorization,  because  of  the  neces- 
sity to  sell  to  carry  out  the  sdieme  of  the  tviU, 
is  equivalent  to  a  positive  direction  to  selL 

In  Fahnestock  v.  Fahnestock  et  al.,  152  Pa. 
56,  25  Atl.  313,  34  Am.  St.  Rep.  623,  where 


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Pa.) 


HANDEIi  *  HAYDEN  BUILDINO  4  LOAN  AflS'N  ▼.  ELLEFOBD 


951 


due  effect  could  Aot  be'  given  material  proTisi<»is 
of  the  will  without  treating  a  mere  power  of 
sale  as  a  direction  to  sell  and  so  operating  as 
an  equitable  conversion,  Mr.  Justice  McColTum, 
for  the  Supreme  Ck)urt,  said  (page  61  of  152 
Pa.,  piwe  816  of  25  Atl.,  34  Am.  St.  Rep. 
623):  "If  a  testator  authorizes  his  executors  to 
sell  his  real  estate  and  to  execute  and  deliver 
to  the  purchasers  deeds  in  fee  simple,  of  the 
same,  as  in  this  case,  and  it  is  clear  from  the 
face  of  bis  will  that  it  was  his  intention  that 
the  power  so  conferred  by  him  should  be  exer- 
cised, it  will  be  construed  as  a  direction  to  sell, 
and  operate  as  an  equitable  conversion.  If  in 
addition  to  this  dear  intention  of  the  testator 
it  plainljr  appears  that  efTect  cannot  be  given 
to  material  provisions  of  the  will  without  the 
exercise  of  this  power,  tbe  conclusion  is  irresisti- 
ble that  a  conversion  is  as  effectually  accom- 
plished by  the  will,  and  the  duties  of  the  ex- 
ecutors under  it  are  tbe  same,  as  if  it  contained 
a  positive  direction  to  sell." 

In  Sevems'  Estate  (No.  1)  211  Pa.  65,  67, 
60  Atl.  492,  493,  where  it  was  held  that  an  In- 
tention to  convert  would  be  implied  although 
a  sale  was  merely  authorized  if  a  sale  was  neces- 
sary to  carry  out  the  provisions  of  the  will,  Mr. 
Justice  Mestrezat,  for  the  Supreme  Court,  said: 
"There  is  no  difficulty  in  ascertaining  the  in- 
tention of  the  testatrix  from  the  provisions  of 
Mrs.  Sevems'  wilL  She  does  not  devise  her 
real  estate,  but  empowers  her  executrix  to  sell 
without  any  alternative  disposition  of  it.  It  is 
not  given  as  real  estate  to  the  persons  named  in 
the  will,  nor  to  any  other  person  tor  any  pur- 
pose whatever,  but,  in  tbe  language  of  the  in- 
strument, 'the  proceeds  of  the  sale  of  tbe  said 
premises  I  direct  ray  said  executrix  to  divide 
among  my  said  three  daughters  share  and  share 
alike.*  We,  therefore,  have  in  the  will  an  au- 
thority given  to  the  executrix  to  sell  and  a  di- 
rection to  divide  tbe  proceeds  of  the  sale  in 
equal  shares  among  the  three  legatees.  In  or- 
der to  carry  out  the  provisions  of  the  will  and 
make  that  distribution  of  the  proceeds  of  the 
property,  a  sale  of  the  real  estate  becomes  im- 
perative and  is  an  absolute  necessity.  This,  as 
appears  from  the  authorities  cited  above,  meets 
the  requirements  of  our  cases  and  operates  as 
an  equitable  conversion.  The  fact  that  the  time 
when,  and  the  terms  upon  which,  the  sale  should 
be  made  are  discretionaTy  with  tlie  executrix 
does  not  give  the  latter  authority  to  prevent  a 
sale,  nor  to  postpone  it  indefinitely.  The  dis- 
cretion reposed  in  the  executrix  is  a  reasonable 
and  not  an  arbitrary  one,  and  must  be  exercised 
to  carry  out  tbe  plain  intention  of  the  testa- 
trix that  the  property  shall  be  .convertad  into 
personalty  and  the  proceeds  distributed  equally 
among  the  three  sisters." 

And  in  Bahn'a  Estate,  57  Pa:  Super.  Ct.  457, 
Judge  Porter,  for  tlie  Superior  Court,  said  (page 
461):  "This  will  contains,  it  is  true,  no  express 
direction  to  sell  the  land ;  it  does,  however, 
authorize  the  executor  to  maJke  a  sale  and  con- 
vey 'as  good  a  title  of  my  real  estate  sold  as 
I  could  were  I  living';  tne  time  of  such  sale 
to  be  siibject  to  the  joint  discretion  of  Henry 
Babn  and  the  executor.  'And  when  so  sold,  that 
the  proceeds  of  said  sale  be  equally  divided  share 
and  share  alike  between  my  husband,  Henry 
Bahn,  and  my  daughter,  Elsie  Minerva  BaW' 
This  is  a  positive  direction  to  divide  the  pro- 
ceeds of  and  not  tbe  real  estate  itself  between 
tbe  two  persons  named,  and  there  is  an  abso- 
lute necessity,  to  sell  to  accomplish  tlie  purpose 
of  the  testator.  Taking  all  the  provisions  of 
the  will  together,  they  disclose  a  clear  intention 
upon  the  part  of  the  testator  that  the  land 
should  be  sold  and  the  proceeds  divided,  and  tbe 
conclusion  is  in-esistiblc  that  a  conversion  is 
effectually  accomplished  by  the  will,  thongb  tbere 
was  not  to  be  an  immediate  sale.  McClore's 
.\ppcal,   72   Pa.   414;     Roland  v.   Miller,   1(X) 


Pa.  47;  Philadelphia's  Appeal,  112  Pa.  470  M 
AtL  4];  Sevems'  Estate  (No.  1)  211  Pa.  66, 
60  Atl.  402;  McClarren's  Estate,  238  Pa.  220 
[85  AU.  111ft]." 

[2]  In  all,  these  the  facta  appear  very  like 
those  in  this  estate,  and  in  Knoppel's  Estate, 
25  Pa.  Dist.  R.  116,  where  the  testator  merely 
authorized  his  executor  to  sell  real  estate  and 
gave  tbe  proceeds  to  bis  children,  nominatim, 
Judge  Lamorelle,  for  this  court,  said  (page  117); 
"The  mere  reading  of  the  will  shows  that  the 
authorization  to  sell  was  tantamount  to  a  direc- 
tion, for  the  nine  children  were,  in  terms,  given 
the  proceeds  and  not  the  real  estate  itself; 
therefore  a  sale  was  essential  to  effect  the  dis- 
tribution contemplated  by  testator." 

We  are  satisfied  that  this  testator's  will  work- 
ed an  equitable  conversion  of  his  real  estate  into 
personal  property  as  of  the  date  of  his  death, 
and  that,  such  being  the  case,  proceeds  derived 
from  sales  pass  as  personal  property  and  not  as 
real  estate.  The  award  to  the  son's  widow, 
therefore  (his  estate  having  been  settled  and 
all  debts  paid),  of  one-third  of  the  share  to  which 
her  husband  would  have  been  entitled  was  cor- 
rect 

It  should  perhaps  be  added  that  in  reaching 
this  conclusion  we  have  not  overlooked,  although 
we  have  not  thought  it  necessary  to  discuss,  the 
apparently  conflicting  views  expressed  in  opin- 
ions heretofore  filed  in  this  state  and  relating 
to  the  distribution  of  rents  (Metzger's  Estate, 
222  Pa.  276,  71  Atl.  96;  Id.,  242  Pa.  69,  88 
Atl.  915)  or  of  the  proceeds  derived  from  sales 
of  other  real  estate. 

Tbe  court  dismissed  the  ezceptlcxis.  Louis 
J.  Bergdoll  appealed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKBR,  FRAZEIR,  and  WAL- 
LING, 33. 

William  H.  Balle,  of  Philadelphia,  for  ap- 
pellant. R.  Stuart  Smith,  A.  Allen  Wood- 
ratt,  and  Nicholas  H.  Larzelere,  aU  of  Phlla* 
delphla,  for  appellee. 

PER  CURIAM.  Tbe  decree  in  tills  case  Is 
affirmed,  at  appellant's  costs,  on  tbe  opinion 
of  tbe  learned  court  below  dismissing  the  ex- 
ceptions to  tlie  adjudication. 


OSS  Fa.  ;43) 
HANDEL  ft  HATDEN  BUILDING  ft  LOAN 
ASS'N  v.  ELLEFORD  et  al. 


(Supreme  Court  of  Pennsylvania. 
1917.) 


May  7, 


1.  JuDOMBNT  «aa>866  —  LiXN  — "Terre-ten- 
ant' ' — Statdtb. 
Under  Act  AprU  4.  1798  (3  Smitb'a  Laws, 
pp.  331,  332)  §$  2,  3,  relating  to  the  lien  of  judg- 
ments upon  realty  and  their  revival,  and  pro- 
viding that  writs  of  scire  facias  to  revive  soaU 
be  served  on  the  terre-tenant  or  person  occu- 
pying tbe  realty  bound  by  the  judgment,  the 

terre-tenant"  is  one  whose  title  is  subsequent 
to  the  incumbrance ;  one  other  than  the  debtor, 
who  becomes  seised  or  possessed  of  the  debtor's 
lands  subject  to  the  lien  thereof;  and  in  a 
more  general  sense  one  who  is  seised  or  actually 
possessed  of  lands  as  the  owner  thereof,  so  that 
one  deriving  his  title  11  weeks  prior  to  the  date 
of  tbe  original  judgment  was  not  a  terre-tenant, 
and  a  default  judgment  of  revival  entered 
against  him  was  properly  stricken  from  the 
record. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  Terre-Tenant] 


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101  ATIiANTIO  REPORTER 


(Pa. 


2.  Judgment  iS=36750)— Scibe  FACiAft-TEB- r 
ke-Tenant— Adverse  Possession. 

On  a  scire  facias  to  revive  a  judgment  upon 
a  bond  accompanying  a  mortgage,  one  summon- 
ed as  defendant's  terre-tenant,  who  in  fact  did 
not  acquire  the  real  estate  in  controversy  while 
subject  to  the  lien  of  the  original  judgment, 
was  not  precluded  from  setting  np  an  adverse 
title  in  a  subsequent  action  of  ejectment. 

3.  Fraudulent  Convetanoes  *=»230— Rem- 
edy—Judicial  Sale. 

Where  a  sale  is  made  to  delay,  hinder,  and 
defraud  creditors,  the  proper  way  to  test  the 
validity  of  the  transaction  is  by  a  judicial  sale 
at  the  suit  of  a  judgment  creditor. 

4.  Fraudulent    CowvETANCEa    «=>237(2)  — 
Remedies  of  Creditor— Equity. 

Where  a  judgment  debtor  makes  a  frandu- 
lent  transfer  of  property  which  otherwise  would 
be  subject  to  the  lien  of  the  judgment,  and  the 
creditor  for  some  valid  reason  cannot  then  law- 
fully proceed  to  immediate  execution  and  sale, 
or  has  no  adequate  remedy  at  law,  he  can  sue 
in  equity. 

6.  Judgment  €=s>252(1)  —  Scirk  Facias— Oh- 
OBBr— Responsiveness. 

On  scire  facias  to  revive  a  judgment  against 
two  defendants  upon  a  mortgage  bond  against 
them,  and  against  their  terre-tenant,  where  the 
terre-tenant  sought  to  strike  off  the  default 
judgment  against  him,  an  order  striking  off  the 
judgment  against  him  only  was  responsive  to 
the  relief  a^ed. 

Appeal  from  Court  of  Common  Pleas,  Pbll- 
adelphia  County. 

Action  by  the  Handel  &  Hayden  Building 
&  Loan  Association  against  William  J.  Elle- 
ford,  Eleise  H.  EUeford,  bis  wife,  and 
Cliarles  C.  Wells,  terre-tenant  From  a  judg- 
ment making  absolute  a  rule  to  strike  off  a 
judgment  against  the  terre-tenant,  plaintiff 
appeals.    Appeal  dismissed. 

Argued  before  BROWN,  O.  J.,  and  lifES- 
TREZAT,  POTTER,  STEWART,  MOSCH- 
ZISKER,  and  FRAZER,  JJ. 

Joseph  H.  Sundhelm  and  I.  Lasker  Green- 
berg,  both  of  Phlladelpbla,  for  appellant. 
W.  Horace  Hepburn,  Jr.,  of  Pliiladelphla, 
for  appellees. 

MOSCHZISKER,  J.  WUIiam  J.  EUeford 
and  Elelse  H.,  Us  wife,  executed  to  the  plain- 
tiff corporation  a  mortgage  in  the  usual 
building  association  form,  secured  upon  real 
estate  in  the  dty  of  Philadelphia.  Mrs.  El- 
leford  owned  another  piece  of  real  estate, 
not  covered  by  the  mortgage,  which,  on  Oc- 
tober 15,  1914,  the  two  defendants  conveyed 
to  Charles  C.  Wells.  On  December  31,  1914, 
a  judgment  by  confession  was  entered  in 
favor  of  the  plaintiff  against  these  defend- 
ants, upon  the  bond  accompanying  this  mort- 
gage. December  8,  1915,  plaintiff  filed  of 
record  a  suggestion  that  the  above-mentioned 
conveyance  by  EUeford  and  wife  was  made 
without  consideration,  and  with  the  intent 
to  "hinder,  delay,  and  defraud  the  creditors 
of  Elelse  H.  EUeford,  particularly  the  plain- 
tiff In  this  case."  December  9,  1916,  a  sd. 
fa.  to  revive  the  judgment  issued  against 
the  two  defendants  and  Charles  C.  Wells,  the 
latter  being  named  as  terre-tenant  of  the 


property  conveyed  to  him  by  the  former; 

and  January  8,  1916,  Judgment  was  entered 
generally  against  all  three,  for  want  of  an 
affidavit  of  defense.  April  4,  1916,  Mr.  Wells 
obtained  the  allowance  of  a  rule  to  show 
cause  why  the  judgment  against  him  shonld 
not  tie  stricken  from  the  record;  and,  on 
May  5,  1916,  this  rule  was  made  absolute. 
The  plaintiff  has  appealed. 

[1]  Sections  2  and  3  of  the  act  of  April  4, 
1798  (3  Smith's  Ivaws,  p.  331;  2  Purd.  Dig. 
[13th  Ed.]  2042-2044),  covering  the  subject 
of  the  lien  of  judgments  upon  real  estate  and 
their  revival,  provide.  Inter  alia,  that  writs 
of  scire  facias  to  revive  "shall  be  served  on 
the  terre-tenants  or  persona  occupying  the 
real  estate  bound  by  the  Judgment."  There 
is  some  conflict  in  the  earlier  decisions  of 
this  court  concerning  the  meaning  of  the 
term  "terre-tenant,"  as  used  in  this  act;  but 
it  is  not  necessary  to  review  our  cases  chron- 
ologically. It  is  sufficient  to  cite  the  last  one 
touching  the  point  under  consideration, 
which  conclusively  settles  it  in  favor  of  the 
appellee.  In  Hulett  et  al.  t.  Mut  Life  Ins. 
Co.  of  N.  T.,  114  Pa.  142,  146,  6  AtL  654,  555. 
we  said: 

"A  terre-tenant,  in  a  general  sense,  is  one 
who  is  seised  or  actually  possessed  of  lands  as 
the  owner  thereof.  In  a  scire  facias  sur  mort- 
gage or  judgment,  a  terre-tenant  is,  in  a  more 
restricted  sense,  one,  other  than  the  debtor, 
who  becomes  seised  or  possessed  of  the  debtor's 
lands,  subject  to  the  hen  thereof.  Those  only 
are  terre-tenants,  Uierefore,  in  a  technical  sense, 
whose  title  is  subsequent  to  the  incumbrance." 

Here,  whatever  title  Mr.  Wells  may  have 
to  the  real  estate  sought  to  l>e  covered  by 
the  proceedings  to  revive,  came  to  him  be- 
fore and  not  "subsequent  to  the  incum- 
brance"; hence  he  is  not  a  terre-tenant, 
within  Uie  meaning  of  the  act  depended  upon 
by  the  plaintiff,  and  should  not  have  been 
named  as  such. 

Under  some  of  our  casea,  where  one  is 
prima  fiicia  a  terre-tenant.  In  that  he  took 
title  to  the  real  estate  in  question  subse- 
quent to  the  judgment  sought  to  be  revived, 
a  plaintiff  has  a  right  to  name  him  as  such, 
even  though  the  lien  of  the  Judgment  may 
have  expired;  and,  when  so  named,  the 
terre-tenant  may  defend  under  a  plea  that 
the  Judgment  is  not  and  never  was  a  lien 
upon  his  land.  Hulett  ▼.  Mut  life  Ins.  Co., 
supra ;  Eanhauser  v.  Penna.  &  New  England 
R.  R.  Co.  (No.  2)  222  Pa.  244,  71  AU.  4,  247: 
Colwell  y.  Easley,  83  Pa.  81.  In  a  case  like 
the  present,  where  the  record  dejpended  up- 
on by  the  plaintiff  clearly  shows  that  the 
person  named  as  terre-tenant  derived  Iiis 
title  11  weeks  prior  to  the  date  of  the  orig- 
inal Judgment,  the  fact  that  he  is  not  a  terre- 
tenant  within  the  meaning  of  the  act  of  1798, 
as  construed  in  our  latest  rulings,  is  so  ap- 
parent that,  upon  application,  a  Judgment 
of  revival  altered  against  him  by  default 
may  properly  be  stricken  from  the  record. 


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BOOKWALTBB  ▼.  BOROUaH  OF  MT.  UNION 


953 


If  the  swrnnaiy  relief  granted  In  tbls  case 
were  not  allowed,  there  would  be  nothing 
to  hinder  a  Judgment  creditor  In  the  position 
of  the  present  plaintiff  from  filing  of  record 
suggestions  of  fraudulent  conveyances  cover- 
ing all  real  estate  disposed  of  by  Ms  mort- 
gagor subsequent  to  the  date  of  his  mort- 
gage lien,  and  thus,  in  numerous  instances 
unjustly,  but  none  the  less  effectually,  pre- 
vent the  marketing  of  such  properties  for 
indefinite  periods  of  time.  While  there  are 
some  dicta  in  certain  of  our  cases  which, 
no  doubt,  suggested  to  plaintiff  the  possible 
Talldlty  of  such  a  procedure,  yet  we  have 
been  pointed  to  no  rullug  authority  therefor, 
and  we  know  of  none. 

[2]  In  a  proceeding  to  revive,  such  as  the 
one  now  before  us,  a  person  summoned  as 
terre-tenant,  who  in  point  of  fact  did  not  ac- 
quire the  real  estate  in  controversy  while 
It  was  subject  to  the  lien  of  the  original 
Judgment,  Is  not  precluded  from  setting  up 
an  adverse  title  in  a  subsequent  action  of 
ejectment  (Mitchell  v.  Hamilton,  8  Pa.  486; 
Dengler  v.  Klehner,  13  Pa.  88,  53  Am.  Dec. 
441;  Drum  v.  Kelly,  34  Pa.  415;  Colwell 
V.  Basley,  supra;  Gibbs  v.  Tiffany,  4  Pa. 
Super.  Ct.  29);  and  the  present  plaintiff  does 
not  contend  to  the  contrary,  but  only  that  it 
should  be  allowed  to  retain  whatever  prima 
facie  rights  it  may  possess  under  the  Judg- 
ment against  the  alleged  terre-tenant 

[3,  4]  There  Is  an  ample  remedy  to  protect 
whatever  rights  the  plaintiff  may  have  In 
the  premises ;  for  as  well  stated  in  the  opin- 
ion of  the  learned  court  below: 

"Where  a  sale  is  made  to  delay,  hinder,  and 
defraud  creditors,  the  proper  manner  to  test 
the  validity  of  the  transaction  is  not  by  sug- 
irestion  and  scire  facias,  as  has  been  attempt^ 
m  this  case,  but  by  a  :udicial  sale  at  the  suit 
of  the  jndgroent  creditor."  Stewart  v.  Coder, 
11  Pa.  90,  94;  Kemmler,  Ex'x,  v.  McOovern 
«t  uz.,  238  Pa.  460,  86  AtL  804. 

A  Judicial  sale  of  all  or  any  real  estate 
alleged  to  be  subject  to  a  Judgment,  followed 
by  ejectment.  Is  the  usual  course  pursued 
in  cases  like  the  one  at  bar.  Where,  how- 
ever, a  Judgment  debtor  has  made  a  fraud- 
ulent transfer  of  property  which  otherwise 
would  be  subject  to  the  lien  of  the  Judgment, 
and  the  creditor,  for  some  valid  reason,  can- 
not for  the  time  being  lawfully  proceed  to 
immediate  execution  and  sale,  or  for  any 
other  cause  the  latter  has  no  full  and  ade- 
quate remedy  at  law,  then  the  doors  of  equi- 
ty are  opened  to  him.  Fowler's  Appeal,  87 
Pa.  449;  Hyde  ▼.  Baker,  212  Pa.  224,  61 
Atl.  823,  108  Am.  St.  Rep.  865. 

(SI  The  plaintiff  contends  that  the  order 
appealed  from  is  not  responsive  to  the  relief 
asked,  for  the  reason  that  the  Judgment  Is 
a  general  one,  comprehending  the  two  orig- 
inal defendants,  as  well  as  the  terre-tenant, 
and  the  prayer  Is  simply  to  strike  it  off, 
without  limitation;  but,  when  the  whole 
petition  Is  read.  It  is  perfectly  apparent  the 


only  relief  desired  was  that  the  judgment 
in  question  should  be  stricken  off  as  to  the 
alleged  terre-tenant  and  petitioner,  Charles 
C.  Wells.  The  order  of  the  court  below  was 
properly  restricted  accordingly. 

The  assignments  of  error  are  overruled, 
and  the  appeal  is  dismissed. 

(268  Pa.  209) 
BOOEWALTER  et  ux.  v.  BOBOUOH  OF 
MT.  UNION. 

(Supreme  Court  of  Pennsylvania.    May  14, 
1917.) 

Municipal  Cobfosations  «=»805(2)— Defko- 

TIVE      SiDEWAXK  —  CONTBIBUIOBT      NkQU- 
OENCE. 

Plaintiff  in  an  action  against  a  municipality 
to  recover  for  injuries  from  a  fall  over  a  pile 
of  broken  brick  on  a  sidewalk,  who  had  passed 
over  the  sidewalk  twice  before  on  the  same  day 
and  had  seen  the  broken  brick,  and  who,  when 
injured  in  broad  daylight,  did  not  look  to  see 
whether  it  was  still  there,  was  not  in  the  exer- 
dse  of  due  care,  and  could  not  recover. 

AK>eal  from  lOourt  of  Common  Pleas, 
Huntingdon  County. 

Trespass  by  J.  G.  Bookwalter  and  Ida 
Bookwalter,  his  wife,  against  the  Borough  of 
Mt.  Union,  to  recover  damages  for  personal 
injuries.  From  an  order  refusing  to  take  off 
a  compulsory  nonsuit,  plaintiffs  appeaL  Af- 
firmed. 

Argued  before  BROWN,  Oi  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and  WAl^ 
LING,  JJ. 

Samuel  I.  Spyker,  of  Huntingdon,  for  ap- 
pellants. Charles  El  Hower,  of  Mt  Union, 
for  appellee. 

PER  CURIAM.  In  broad  daylight,  on  a 
May  morning,. Ida  Bookwalter  fell  on  a  side- 
walk in  the  borough  of  Mt.  Union,  and  this 
action  was  brought  to  recover  compensation 
for  the  injuries  she  sustained.  Her  fall  was 
caused  by  stepping  on  spalls  or  broken  brick, 
and  the  negligence  with  which  she  <Aarged 
the  municipality  was  its  failure  to  remove 
the  brick  or  stone  from  the  sidewalk. 

The  borough  may  have  been  negligent  in 
this  respect ;  but  the  contributory  negligence 
of  the  plaintiff  was  dear,  and  it  was  the 
duty  of  the  court  below  to  sustain  the  de- 
fendant's motion  for  a  nonsuit  Just  be- 
fore she  fell  she  was  crossing  the  entrance  to 
an  alley  and  approaching  a  curb  on  the  side- 
walk alongside  of  the  entrance.  The  curb 
projected  10  inches  above  the  sidewalk,  on 
the  north  side  of  It  the  direction  in  which 
the  plaintiff  was  walking.  She  testified  that 
she  had  passed  over  the  sidewalk  twice  be- 
fore on  the  same  day  and  had  se«i  the  spalls 
on  It  That  she  failed  to  exercise  the  proper 
degree  of  care  at  the  time  she  fell  conclusive- 
ly appears  from  her  own  admission.  Her  tes- 
timony as  to  this  Is  as  follows: 

"Q.  If  you  had  looked  over  the  curb,  you 
would   have   seen   the   spalls   that  were  there. 


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101  ATLANTIC  RBO^ORTESR 


(Pa. 


couldn't  yon.  It  was  broad  daylight?  A.  Yes. 
Q.  When  yon  came  to  that  curb,  yon  didn't 
look  over  to  lee  them?  A.  No,  air.  •  •  •  Q. 
The  reason  you  didn't  see  the  spalls  on  the  op- 
posite side  of  the  curb,  when  you  stepped  over, 
was  because  you  didnt  look  to  see  them;  is 
that  true?    A.  Yes,  sir.*'* 

Judgment  affirmed. 


(258  Pa.  201) 
KBILLY  V.  CITY  OP  WILKES-BAKRB. 

(Supreme  Court  of  Pennsylvania.    May  14, 

1917.) 

Municipal  Oobpobatjoks  «s»352— Conbtbuc- 

TION    OF  CONTBACl^-LlABIIJTT. 

Under  a  contract  to  furnish  labor  and  ma- 
terials in  laying  sewer  pipes  according  to  the 
plans  and  specifications  and  the  contractor's 
proposal  attached  to  the  contract,  requiring  the 
Didder  to  state  the  cost  of  each  item  and  carry 
out  the  total  cost  of  the  work  according  to  the 
propooal,  and  also  providing  that  all  ue  work 
and  materials  to  be  paid  for  should  be  measured 
by  the  engineer,  and  whereby  the  city  agreed 
to  pay  for  the  completed  work  in  accordance 
with  the  plans  the  sum  of  .(48,980.59,  the  pro- 
posal was  a  part  of  the  contract,  and  the  city 
was  not  liable  for  the  amount  stated,  but  only 
for  the  aggregate  actual  measurements  at  the 
prices  specified. 

Appeal  from  Court  of  Common  Pleas,  La- 
zerne  County. 

Assumpsit  on  a  contract  by  C  M.  Reilly 
against  City  of  Wilkes-Barre.  From  a  Judg- 
ment on  a  verdict  for  plaintiff,  he  appeals. 
Affirmed. 

The  following  is  the  opinion  of  Fuller,  P. 
J.,  in  the  court  of  common  pleas : 

The  action  was  brought  to  recover  a  balance 
claimed  on  contract  for  building  a  sewer.  By 
that  contract,  dated  October  25,  1912,  plaintiff 
agreed  to  furnish  all  labor  and  materials  to  ex- 
cavate and  back-fill  trenches  and  to  lay  sewer 
pipes  therein,  on  certain  streets  in  tne  city 
of  Wilkes-Barre  according  to  plans  and  specifi- 
cations and  plaintiff's  proposal  on  file  on  the 
city  office,  and  attached  to  the  contract;  and 
the  defendant  agreed  to  pay  for  completing  said 
work  in  accordance  with  plans  and  specifications 

t 48,960.59  in  the  manner  provided  by  the  speci- 
cations.  Thus  the  proposal  and  specifications 
became  a  part  of  the  contract  and  must  be  con- 
sidered in  construing  its  terms. 

In  the  proposal  the  plaintiff  offered  "to  ex- 
cavate and  Imck-fill  sewer  trenches  and  to  fur- 
nish sand  and  cement  and  lay  pipe  in  trenches 
in  accordance  with  plans  and  specifications  of 
the  same  for  the  following  prices,  and  in  greater 
or  smaller  Quantities,  vl«.  •  •  • "  Then  fol- 
lows some  17  items  specifying  different  lengths 
and  depths  of  trenches,  cubic  yards  of  di^erent 
material  such  as  hardpan,  rock,  shale,  and  slate, 
length  and  diameter  of  pipes,  number  of  man- 
holes, eta,  with  unit  prices  per  lineal  foot,  cubic 
yard,  and  manhole,  all  carried  out.  footed  up, 
and  added  together,  amounting  to  the  said  sum 
of  $48,980.69. 

This  proposal  was  on  a  standard  printed  blank 
used  by  the  city,  and  contained  the  following: 
"Bidders  will  fill  in  the  cost  per  foot  or  yard 
of  each  item  as  indicated  on  the  above  blank, 
carry  out  the  total  cost  of  such  items,  and  add 
the  bid  showing  total  cost  of  work  according  to 
thar  proposal' — as  was  done  in  this  case.  It 
was  also  provided:  "All  work  and  materials  to 
be  paid  for  shall  be  measured  by  the  engineer 
and  his  assistants  according  to  the  plans,  speci- 
ficutions,  and  the  lines  given  on  the  ground."  i 


It  was  also  provided  that  in  roek  work  certain 
considerations  shoald  determine  whether  the  es- 
timate should  be  for  rock,  shale,  or  slate ;  "these 
estimates  and  the  decision  and  judgment  upon 
which  they  are  based  to  be  final  and  conclnsive. ' 
It  was  also  provided  that  at  the  end  of  each 
month  during  the  progress  of  the  work  the  engi- 
neer shall  make  an  estimate  of  the  total  amount 
of  work  during  that  month  and  the  valuaticm 
thereof  at  the  prices  stipulated  and  recorded 
in  the  contract,  which  estimate  shall  be  a  war- 
rant for  payment  of  90  per  cent.,  the  other  10 
per  cent,  to  remain  unpaid  until  completipn, 
and  then  to  be  payable  within  90  days  from 
completion  and  acceptance. 

The  plaintiff  received  payments  on  monthly  es- 
timates of  the  engineer  from  time  to  time,  23 
in  all,  forming  a  connected  series,  with  balances 
carried  forward  from  one  to  the  other,  based 
upon  actual  measurements  and  upon  prices  spec- 
ified in  the  proposal,  amounting  all  together  to 
$S4,046.04. 

Ten  per  cent,  was  retained  out  of  each  month- 
ly estimate  as  agreed,  and  upon  completion  and 
acceptance  of  the  work  by  the  city,  December 
9,  1914,  the  final  estimate  was  $4,971.69,  whi«h 
the  city  offered  and  still  offers  to  pay. 

There  were  some  minor  questions  in  the  case 
which  are  not  in  controversy  at  this  time,  and 
need  not  be  mentioned  or  considered. 

The  plaintiff  in  substance  claimed  that  on  his 
construction  of  the  contract  he  was  entitled  to 
the  flat  sum  of  $48,980JS9,  regardless  of  meas- 
urements, with  credit  of  $34,046.04,  leaving  a 
balance  of  $14,934.55,  subject  to  some  further 
credit  connected  with  the  minor  questions  just 
mentioned.  Tlie  defendant,  on  the  other  hand, 
claimed  that  on  its  construction  of  the  contract 
the  limitation  of  liability  was  actual  measure- 
ments and  specified  prices,  that  is  $39,017.63, 
less  paymenU  $34,046.04,  leaving  $4,971.69, 
as  set  forth  in  the  final  estimate  above  mention- 
ed, with  some  addition  thereto  connected  with 
the  minor  questions  aforesaid.  Thus  the  cpn- 
troversy  involves  a  construction  of  the  contract 
as  between  $48,980.69,  claimed  by  the  plaintiff, 
and  the  unit  basis  diaimed  by  the  defendant. 
In  our  charge  to  the  jury  we  adopted  and  we 
still  bold  to  the  latter. 

The  defendant  offered  evidence  of  a  contem- 
poraneous similar  contract,  in  which  the  plain- 
tiff himself  adopted  and  acted  upon  the  defend- 
ant's construction,  but  we  rejected  the  evidence 
on  the  assumption,  which  we  stQI  make,  that 
the  contract  taken  as  a  whole  was  free  from 
ambi^ity. 

Plainly,  we  think,  the  contract  was  to  do  the 
work  for  $48,980.69  if  the  measurements 
amounted  to  so  much  at  the  specified  unit  pric- 
es. The  measurements  stated  in  the  proposal 
were  estimated  as  closely  as  they  could  be  in 
advance.  If  ther  fell  short,  the  cost  wonld  be 
correspondingly  less;  if  they  went  above,  the 
cost  would  be  correspondingly  more.  No  other 
construction  would  be  fair  to  either  party.  No 
other  construction  accords  with  the  language  of 
the  different  ptovitdons  heretofore  quoted,  ac- 
companied  by  the  specification  of  pnces.  Why 
specify  prices  or  measurements  "in  greater  or 
smaller  quantities"  if  a  flat  payment  of  the  total 
amount  is  contemplated? 

Without  further  discussion,  which  the  case 
no  doubt  deserves,  but  which  we  have  not  the 
time  to  bestow,  we  concur  with  the  trial  judge 
that  the  contract  clearly  contemplates  payment, 
not  of  a  flat  $48,980.69,  but  for  aggregate  actual 
measurements  on  prixres  specified. 

Verdict  for  plaintiff  for  $6,411.41  and  judg- 
ment thereon.    Plaintiff  api>ealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAJL- 
UXG,  JJ. 


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Pa.) 


MUBBAT  T.  BAKBAIJ. 


955 


John  McGahren  and  B.  B.  Alexander,  both 
of  Wilkes-Barre,  for  appellant  EJvan  C. 
Jones  and  Charles  F.  MicHu^,  both  of 
Wllkes-Barre,  for  appellee. 

PEB  CUBIAM.  The  proposal  of  the  plain- 
tiff to  the  defendant  to  do  the  work  for  which 
he  bid  and  the  specifications  upon  which  It 
was  based  became  parts  of  the  contract  upon 
which  he  brought  this  action.  The  proposal 
was  to  do  the  work  and  furnish  materials  at 
an  estimated  price  for  certain  Items,  which 
prices  were  to  be  paid  for  "greater  or  small- 
er quantities."  The  contract  was  correctly 
construed  bjr  the  court  below  as  imposing 
^liability  upcn  the  city,  not  for  the  flat  sum 
of  $48,9S0.59,  as  claimed  by  the  platntlfl,  but 
for  such  less  or  larger  sum  as  would  result 
from  applying  the  specified  unit  rate  prices 
to  the  actual  measurements  of  work  done, 
as  claimed  by  the  defendant." 

Judgment  affirmed. 


<2S8  Pa.  2M) 

BOBOUGH  OF  HOLLIDAISBUBO  t. 
SNYDEE. 

(Supreme  Court  of  Pennsylvania.     May  14, 
1917.) 

Indemnitt  «ss>14  —  Aonoir  Over  Against 
Toet-Peasort— Conclusiveness  of  Adjudi- 
cation. 
In  a  municipality's  action  to  recover  from 
a  property  owner  the  amount  of  a  judgment  it 
had  been  compelled  to  pay  in  an  action  for  in- 
jury resulting  from  the  dangerous  condition  of 
his  sidewalk,  where  the  evidence  waa  conflicting 
as  to  his  notice  of  the  action  against  the  mu- 
nicipality, the  record  of  such  action,  showing 
that  he  was  present  and  testified  tiierein,  was 
admissible. 

Appeal  from  Court  of  Common  Pleas,  Blalr 
County. 

Assumpsit  by  the  Borough  of  Hollldays- 
bnrg  against  Plymouth  W.  Snyder,  executor 
of  Anna  C.  Bell,  deceased,  to  recover  the 
amount  of  a  judgment  which  plaintiff  was 
compelled  to  pay  for  injuries  caused  by  the 
dangerous  condition  of  a  sidewalk.  Verdict 
for  plaintiff  for '  $2,072.31,  and  Judgment 
thereon,   anU   defendant  appeals.     Affirmed. 

Argued  before  BROWN,  O.  J.,  and  A£ES- 
TBEZAT,  POTTEB,  STEWABT,  and  WAL- 
MNG,  JJ. 

John  M.  Snyder,  of  Philadeliriiia,  J.  Lee 
Plnmmer,  of  HoUldaysburg,  and  William  L. 
Snyder,  of  Shamokln,  for  ai^>ellant  Marion 
D.  Patterson,  of  HoUldaysburg,  and  Thomas 
H.  Greevy,  of  Altoona,  for  appellee. 

PEB  CUBIAM.  This  action  was  brought 
by  the  borough  of  HoUldaysburg  to  recover 
from  the  estate  of  Anna  O.  Bell,  deceased, 
the  amount  of  a  Judgment  It  was  compelled 
to  pay  in  a  suit  brought  against  it  by  Teresa 
tireea,  for  injuries  sustainefd  In  falling  on 
an  ley  pavement  in  front  of  a  property  owned 
by  Miss  Bell.     The  record  of  that  suit  was 


admitted  In  evidence  in  this  action,  and  the 
main  complaint  of  the  appellant— -and  the 
only  one  to  be  noticed — Is  of  its  admission, 
because,  he  alleges,  be  had  not  received  notice 
from  the  borough  of  the  former  proceeding 
against  it  Whether  he  had  received  such 
notice,  and  was  thus  given  the  opportunity 
to  ask  to  intervene  as  a  defendant,  was  sub- 
mitteld  to  the  Jury  as  a  question  of  fact,  and 
their  finding  that  he  had  had  due  notice  of 
the  proceeding  against  the  borough  was  sup- 
ported by  the  evidence^  The  borough  solici- 
tor testified  that,  when  the  case  against  the 
borough  was  fixed  on  the  trial  list,  he  went  to 
the  appellant  and  said  to  him : 

"It  is  highly  important  for  you  to  take  some 
interest  in  this  case,  for,  in  the  event  of  the 
borough  being  held  responsible,  it  may  be  pos- 
sible that  you  wiU  in  turn  be  made  liable." 

In  addition  to  this,  the  appellant  was  ac- 
tually present  at  the  trial  of  the  case  and 
testified  in  it  as  a  witness.  Nothing  is  dis- 
coverable in  the  assignments  of  error  caUing 
for  a  retrial  of  the  case,  and  the  Judgment 
is  affirmed. 

(258  Pa.  113) 
MUBBAT  et  aL  v.  BANDAI>L  et  aL 
Appeal  of  MATISEB. 
(Supreme  Court  of  Pennsylvania.   May  7, 1817J 

Judgment  fl=5>382— Motion  to  Steike. 

Where  one  of  the  two  defendants  in  eject- 
ment filed  a  disclaimer  before  trial,  and  the  jury 
were  sworn  as  between  the  plaintiff  and  the 
other  defendant  but  rendered  a  verdict  against 
both  defendants,  a  motion  to  strike  off  the  judg- 
ment entered  thereon  was  properly  refused, 
where  the  disclaiming  defendant  did  not  com- 
plain. 

Appeal  from  Conrt  of  Common  Pleas,  Ln- 
seme  County. 

Ejectment  by  John  C.  Murray  and  another 
against  A.  Blanche  Bandall  (now  A.  Blanche 
Matiser)  and  John  Morrett,  to  recover  land 
in  Liuzeme  county  in  which  defendant  Mor- 
rett disclaimed.  Judgment  for  plaintiff 
against  both  defendants,  and  from  an  order 
discharging  rnle  to  show  cause  why  Judg- 
ment should  not  be  stricken  off,  defendant 
A.  Blanche  Matiser  appeals.  Appeal  dis- 
missed. 

Argued  before  BHOWN,  O.  J.,  and  MES- 
TBEZAT,  POTTEB,  PBAZEB,  and  WAI.- 
LING,  JJ. 

B.  B.  Jones,  of  Wilkes-Barre,  R.  B.  Smith, 
of  Philadelphia,  and  EX  G.  Butler,  of  Wilkes- 
Barre,  for  appellant  Bichard  B.  Sheridan, 
Michael  F.  McDonald,  and  John  T.  Lenahan, 
aU  of  Wilkes-Barre,  for  appellees. 

PEB  CURIAM.  In  this  ejectment  one  of 
the  two  defendants,  John  Morrett,  filed  a  dis- 
claimer before  the  case  was  called  for  trial. 
Notwithstanding  this,  a  verdict  was  rendered 

against  both  defendants,  and  Judgment 
thereon  was  duly  entered.  A.  Blanche  Mat- 
iser,   the    other    defendant,    appealed    from 


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101  ATIiANTIC  REPORTER 


(Pa. 


that  Judgment  to  this  court,  but  subsequently 
.suffered  a  non  pros.  Shortly  afterwards  she 
presented  her  petition  to  the  court  below, 
asking  that  the  Judgment  be  stricken  off,  for 
the  reason  that  the  verdict  had  been  improp- 
erly rendered  against  herself  and  Morrett,  In 
Tlew  of  the  tatter's  disclaimer  before  the 
trial.  This  petition  was  dismissed  for  the 
good  reason  that  Morrett  himself  was  not 
complaining  of  the  Judgment  against  him, 
and  the  entry  of  It  in  no  manner  impaired 
or  invalidated  the  Judgment  against  the  ap- 
pellant. • 
Appeal  dismissed,  at  her  costs. 


(258  Pa.  MS) 

rui/rON  COUNTY  BANK  v.  SWOPB  et  aL 

(Supreme  Court  of  Pennsylvania.    May  14, 
1917.) 

JUDGMKKT    «=»68(2)  —  OpENIHO    JtTDOMENT — 

Grounds. 
A  judgment  on  a  note,  given  in  renewal  of 
another  note  upon  which  defendants  claimed 
they  were  not  liable,  will  not  be  opened,  where 
it  appeared  that,  when  the  renewal  note  was 
given,  they  had  full  knowledge  of  all  facts  con- 
nected with  the  execution  of  the  original  note. 

Appeal  from  Court  of  Common  Pleas,  Hunt- 
ingdon County. 

Action  by  the  Fnlton  County  Bank  against 
M.  F.  Swope  and  others.  From  an  order  re- 
fusing to  open  a  Judgment  for  plaintiff,  de- 
fendants appeal.    Appeal  dismissed. 

Argued  before  BRO^VN,  C.  J.,  and  MBS- 
TREZAT,  POTTER,  STEWART,  and  WAL- 
UNO,  JJ. 

James  S.  Woods,  of  Huntingdon,  for  appel- 
lants. Walter  K.  Sharpe,  of  Chambersburg, 
H.  H.  Walte,  of  Huntingdon,  and  Irvln  C. 
Elder,  of  Chambersburg,  for  appellee. 

PER  CURIAM.  The  Judgmoit  which  the 
appellants  would  have  opened  was  entered  on 
a  note  given  in  renewal  of  another  Judgment 
note  executed  by  them.  They  ask  that  the 
Judgment  be  opened,  because  they  aver  they 
were  not  liable  on  the  original  note,  for  rea- 
sons which  need  not  be  considered;  for,  even 
If  they  were  mistaken  as  a  matter  of  law  as 
to  the  character  of  the  first  note,  they  gave 
the  second  with  fnll  knowledge  of  all  the 
facts  connected  with  the  execution  of  the 
first.  For  this  reason,  the  action  of  the  court 
belo<w  Is  sustained.  Garrett  v.  Oonter,  42  Pa. 
143;  Building  &  I/oen  Aasodatlon  t.  Walton, 
181  Pa.  201,  37  Atl.  261. 

Appeal  dismissed,  at  appellants'  costs. 

(258  Pft.  188)  "^"^^ 

HACK  r.  SHOVUN, 

(Supreme  Court  of  Pennsylvania.    May  14, 
1917.) 

CORTBAOTB  «=»323(3)—ACTIOW— QUESTION  POR 

JuBT— Abandonment. 
In  an  action  for  labor  and  materials  furnish- 
ed under  building  contract,  held,  on  the  evidence, 
that  whether  the  contractor  had   forfeited  his 


right  to  recover  by  refosing  to  accept  the  ardii- 
tect's  estimates  under  the  contract,  and  by  no- 
tifying defendant  tliat  lie  would  not  proceed  un- 
til paid  what  was  found  to  be  due  him  upon 
a  re-estimate,  was  a  question  for  the  jury. 

Appeal  from  Court  of  Common  Pleas,  Lu- 
zerne County. 

Assumpsit  on  a  building  contract  by  John 
Hack  against  John  F.  ShovUn.  From  a  Judg- 
ment on  a  verdict  for  plaintiff,  defendant  ap- 
peals.   Affirmed. 

Garman,  J.,  filed  the  following  (pinion  In 
the  common  pleas  sor  defendant's  motion  for 
a  new  trial: 

Plaintiff  and  defendant  were  parties  to  a  build- 
ing contract  dated  November  10,  1913,  wherein 
the  plaintiff  agreed  to  do  the  work  and  furnish 
the  materials  for  the  sum  of  $6,907,  and  defend- 
ant agreed  to  pay  said  sum,  the  manner  of  nay- 
ment  set  forth  in  the  contract  as  follows:  "(hi 
the  1st  day  of  every  month  the  architect  shall 
make  a  monthly  estimate  of  the  value  of  the 
work  done  on  the  building,  on  which  day  the 
amount  of  said  estimate,  less  10  per  cent.,  shall 
l>e  paid  contractor;  when  the  nnal  estimate  is 
made  and  building  accepted  the  10  per  cent, 
reductions  theretofore  made  shall  be  added  to 
and  made  part  of  the  final  payment.  And  it  la 
hereby  expressly  covenanted,  understood  and 
agreed  by  the  said  party  of  the  first  part  that 
10  per  cent,  of  the  amount  of  each  payment  is  to 
be  retained  by  the  party  of  the  second  part 
until  the  said  building  is  completed  and  finisjied, 
and  finally  accepted  by  the  party  of  the  second 
part." 

On  the  Ist  of  December,  1913.  the  architect 
made  an  estimate  addressed  to  Mr.  Shovlin  in 
the  following  form:  "This  is  to  certify  tliat  the 
first  payment  of  $360  is  due  to  John  Hack, 
contractor  on  your  building,  Park  avenue, 
Wilkes-Barre,  Pa.  John  J.  Feeney,  Architect. 
John  Hack,  Contractor."  'Riis  naper  was  ac- 
cepted by  both  parties  as  an  estimate,  and  de- 
fendant paid  to  plaintiit  the  snm  of  $.S60.  On 
the  lat  of  January  1914.  the  architect  presented 
a  paper,  addressed  to  Mr.  Shovlin,  reading  aa 
follows :  "This  is  to  certify  that  the  second  "ay- 
ment  of  one  thousand  dollars  is  due  to  Mr.  John 
Hack,  contractor  on  your  building,  Park  avenue, 
Wilkes-Barre,  Pa.  John  J.  Feeney,  Architect, 
Amount  of  contract,  $6,907;  previously  paid, 
$360;  this  certificate.  $1,000;  balance,  $5,547.'^ 
To  tills  paper  plaintiff  objected,  on  the  ground 
that  it  was  not  a  proper  estimate,  and  demanded 
a  re-estimate. 

On  the  7th  of  January,  1914,  the  architect  sent 
In  another  paner  as  follows:  "Wilkes-Barre, 
January  7,  1914.  Mr.  John  Shovlin— Dear  Sir: 
I  have  re-estimated  the  amount  of  work  and  ma- 
terials fixed  in  on  your  building,  Paik  avoiue,  aa 
done  by  your  contractor,  Joiin  Hack,  for  the 
month  of  December,  1913,  as  follows:  Entire 
excavation,  766  yards  at  .60,  $459.60;  68  yards 
of  concrete,  at  $6.00,  $408.00:  brick  wall  in 
cellar,  at  $15  per  thousand,  $82.00;  0,700  feet 
hemlock,  at  $45.00  per  thousand,  $440.55;  10 
cellar  window  frames,  at  $1.50,  $15.00;  total 
$1,405.15.  John  J.  Feeney,  Architect."  This 
paper  was  delivered  to  Mr.  Shovlui,  who  de- 
clined to  pay  Hack  according  to  its  findings,  but 
oftered  Hack  a  check  for  $1,000,  as  per  cer- 
tificate of  January  1,  1914. 

Now,  if  the  case  rested  right  here,  who  would 
doubt  that  ShovUn  stiould  have  paid  Hack  $1,- 
264.63,  the  amount  of  the  estimate,  less  10  per 
cent.  But  on  the  5th  of  January,  1914,  Hack 
sent  to  Shovlin  a  letter  as  follows:  "I  have 
been  advised  by  my  attorney  to  notify  you  that 
John  J.  Feeney,  archt.  for  your  bailding.  Park 
ave.,  city,  is  to  re-estimate  the  amount  of  work 


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HACK  ▼.  SHOVLIN 


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and  material  fnrnlBhed  on  said  bailding  to  Jon- 
nary  1,  1914,  in  a  fair  and  honest  manner.  I 
also  demand  a  copy  of  his  estimate  to  date.  1 
will  allow  you  for  readjustment  until  January 
6,  1914,  at  4 :30  p.  m.  If  not  settled  satisfac- 
tory by  said  time  and  date,  I  shall  quit  work 
on  your  building  and  hold  you  responsible  for 
all  delays."  As  indicated  in  this  letter,  Hack 
quit  work  on  the  6th  of  January,  1914,  at  4:30 
p.  m. 

On  the  8th  of  January,  1914,  Sbovlin  and 
Feeney  sent  to  Hack  the  following  letter :  "You 
are  hereby  notified  that,  because  of  your  having 
quit  working  on  the  John  F.  Sbovlin  building 
on  Park  avenue,  city  of  Wilkes-Barre,  Pa.,  which 
you  contracted  to  build  for  him,  and  having 
neglected  to  supply  a  sufficiency^  of  materials 
and  workmen,  whereby,  in  our  opinion  the  com- 
nletion  of  the  said  building  at  the  time  specified 
wiU  be  prevented,  and  having  failed  and  refused 
to  follow  the  drawings  and  specifications,  it  is 
our  intention  to  enter  and  take  possession  of 
the  premises  and  bldg.  in  three  (3)  days  after 
service  of  this  notice  on  you  and  provide  ma- 
terials and  workmen  to  complete  and  finish  said 
bldg.  as  provided  in  the  specifications  and  con- 
tract. For  any  loss  sustained  by  John  F.  Shov- 
lin,  resulting  from  your  refusal  or  failure  to 
perform  the  contract  you  will  oe  held  responsi- 
ble." This  letter  was  followed  by  one  dated 
January  26.  1914,  to  ShovUn  from  Hack's  at- 
torneys, demanding  the  sum  of  52,361,  the 
amount  claimed  by  Hack  to  be  due  to  him  for 
materials  furniAed  and  work  and  labor  done  to 
January  1,  1914.  .  ^      . 

Now  at  this  point  a  review  of  the  circumstanc- 
es will  disclose  these  facts:  (1)  Hack  demanded 
of  Shovlin  a  new  and  honest  estimate,  threat- 
ened to  quit  work,  and  did  quit  work  on  the  6th 
of  January,  1914.  (2)  Shovlin  on  January  7, 
1914,  received  an  estimate  showing  the  items 
of  work  and  material  furnished  by  Hack  and 
the  sum  of  51,4(6.15  due  him.  (3)  Shovlin  and 
Feeney,  both  knowing  of  the  contents  of  the  re- 
estimate  on  January  8,  1914,  demanded,  with- 
out tender  of  full  payment,  that  Hack  proceed 
within  three  days  or  forfeit  his  contract.  After 
the  8th  of  January,  Hack  did  no  more  work, 
and  Shovlin  made  a  contract  with  another  per- 
son to  complete  the  work,  and  in  the  trial  claim- 
ed from  Hack  the  sum  of  $7,439  for  failure 
to  complete  his  contract  and  for  expenses  in- 
curred m  correcting  HacK's  bad  work. 

As  to  the  estimate,  we  instructed  the  jury 
that.  If  the  architect  had  stood  by  his  estimate 
known  in  the  case  as  of  January  1st,  both  Hack 
and  Shovlin  would  have  been  bound  by  it ;  but 
when  the  architect  made  a  re-estimate,  showinu 
the  incorrectness  of  the  first  paper,  Shovlin  was 
bound  by  it,  and  thereforp  would  not  be  enti- 
tled to  set  off  against  Hack  any  expense,  except 
such  as  was  necessary  to  correct  bad  work  done 
by  Hack;  that  Hack  might  recover  such  sum  aa 
the  jury  should  find  to  be  the  actual  value  of  the 
materials  furnished  and  work  done  up  to  Janu- 
ary 7,  1914,  lees  such  amount  aa  the  jury  would 
deduct  for  payments  made  to  Hack  and  for  bad 
work  or  defective  work  attributable  to  him.  And 
on  consideration  of  these  instructions  we  are  un- 
able to  see  any  error.  As  a  fact  there  was  no 
estimate  worth  considering  until  that  of  Jan- 
nary  7th.  The  contract  si)ecified  that  Hack  was 
entitled  to  a  monthly  estimate  of  the  value  of 
the  work  done  on  the  building  and  to  pay  for 
the  value,  less  10  per  cent.  When,  therefore, 
Sbovlin  learned  on  the  7th  of  January  that  there 
was  due  on  the  1st  of  January  a  sum  of  ex- 
cess of  the  first  estimate,  he  was  bound  to  ten- 
der Hack  the  sum  due,  less  10  per  cent. 

But  Shovlin  claimed  that,  as  threatened  by 
the  letter  of  January  5th,  Hack  quit  the  work 
and  abandoned  his  undertaking.  This  Hack 
denied,  and  averred  that  he  quit  the  work  only 
pending  the  dispute  about  the  estimate.  As  to 
these  contentions  we  said  to  the  jury:   "If  you 


find  that  Hack  absoKitely  quit  on  the  6th  of 
January,  before  this  estimate  of  the  7th  came 
into  the  hands  of  Mr.  Sbovlin,  then  I  think  he 
is  not  entitled  to  recover."  Also :  "You  will 
be  permitted  to  take  this  letter  of  Mr.  Hack, 
and  your  material  question  will  be:  Was  that 
letter  an  absolute  declaration  of  forfeiture  of 
the  contract  on  the  part  of  Mr.  Hack?  If  so, 
this  being  an  entire  contract,  I  would  instruct 
you  that  Mr.  Hack  could  not  recover.  But  if  it 
was  only  a  notice  that  he  would  cease  work 
pending  the  determination  of  the  estimate,  then 
we  would  say  to  you  that,  after  Mr.  Shovlin  got 
the  estimate  on  the  7th  of  January,  it  is  our 
opinion  that  he  would  be  liable  for  its  amount, 
and  having  himself  forfeited  the  contract  after- 
ward by  the  letter  of  the  8th  of  January,  he 
could  not  recover  for  anything  that  he  afterward 
spent  in  the  erection  of  the  building,  and  could 
only  recover  in  the  way  of  set-oS  the  amount 
that  he  may  have  had  to  spend  for  work  that 
was  not  pro'>erly  done  while  the  contractor  was 
in  possession." 

If  our  theory  be  correct,  that  the  estimate  of 
January  7th  was  binding  upon  Shovlin  and 
Hack,  then  it  follows  that  Shovlin  was  bound  to 
tender  Hack  payment  as  shown  by  the  estimate, 
less  10  per  cent;  if  the  jury  found  that  Hack 
suspended  work  only  during  and  pending  the 
making  of  an  "honest  estimate,"  then  he  would 
be  entitled  to  full  pay  for  work  done  up  to  the 
time  that  Shovlin  took  possession  of  the  prem- 
ises. We  believe  this  view  of  the  case  the  just 
one,  and  that  our  cliarge  to  the  jury  properly 
left  to  them  the  determination  of  disputed  facts. 

Defendant's  first  exception  is  to  our  answer  to 
his  third  point,  which  point  was  as  follows: 
"(3)  He  architect  did  make  an  estimate  of  the 
value  of  the  work  done  on  the  building  during 
the  month  of  December,  1913,  by  the  plaintiff, 
and  the  defendant  tendered  to  him  a  check  in 
nayment  of  the  amount  of  said  estimate  which 
was  refused."  To  which  we  answered:  "I  will 
not  affirm  that  point,  but  will  say  to  you  that 
there  is  evidence  to  justify  your  so  finding. 
Even  if  there  be  no  contradiction,  the  facts  are 
for  the  jury."  Our  answer  simply  left  to  the 
jury  whether  the  certificate  of  January  Ist  was 
an  estimate. 

The  second  exception  is  to  our  answer  to  his 
fourth  point  which  point  is:  "(4)  Even  if  said 
estimate  were  made  in  bad  faith  and  for  a  dis- 
honest purpose  (and  there  is  no  evidence  that 
it  was),  such  action  on  the  part  of  the  archi- 
tect could  not  affect  the  rights  of  die  defendant 
under  the  contract  unless  he  were  a  party  to  it." 
And  the  answer  thereto  was:  "That  point  is  af- 
firmed. We  have  already  told  you,  however, 
that  when  the  second  estimate  was  tendered  to 
Mr.  Shovlin,  and  be  retained  it  without  com- 
plying with  it,  if  he  had  any  liability,  it  was 
then  revived,  and  he  would  have  been  liable  for 
the  amount  of  the  said  estimate."  In  this  we 
see  no  error.  In  view  of  the  affirmation  of  the 
point,  it  was  proper  to  refer  to  previous  instmc. 
dons  applicable  to  "action  on  the  part  of  the 
architect"  relating  to  his  estimates. 

We  do  not  deem  it  necessary  to  discuss  the 
other  exceptions  taken,  because  we  do  not  think 
they  are  well  taken,  and  therefore  the  rule  for 
new  trial  is  discharged. 

Verdict  for  plaintiff  for  $2,478.95,  and  Judg- 
ment thereon.  Defendant  appealed.  Brrors 
assigned  were  instrnctlong  to  the  Jury  and  in 
refusing  to  direct  a  verdict  for  defendant. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TRBZAT,  POTTER,  FRAZER,  and  WAL- 
LING, JJ. 

M.  J.  Mulhall,  of  Pittston,  and  A,  O.  Camp- 
bell, of  Wllkes-Barre,  for  appellant.  J.  Q. 
Crereling  and  G.  B.  Kleeman,  both  of  Wllkes- 
Barre,  for  ai^ellee. 


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101  ATLiANTIO  BEP0RTB3B 


dPa. 


PER  CURIAM.  The  learned  trial  Judge 
Instructed  the  Jury  to  find  as  a  fact  whether 
the  written  notice  of  the  apjjellee  to  the  ap- 
pellant of  January  5,  1914,  was  an  absolute 
abandonment  of  the  contract  by  the  former, 
or  merely  that  he  would  not  prosecute  the 
work  until,  upon  a  re-estimate  for  December, 
he  was  paid  what  was  due  him.  The  finding 
of  the  Jury  was  that  he  bad  not  absolutely 
abnmloned  the  contract,  and,  as  the  appellee 
did  not  tender  payment  to  him  of  the  amount 
due  on  the  re-estlmate  of  January  7tb,  he 
was  entitled  to  recover. 

This  was  the  correct  rlew  of  the  court 
below  in  discharging  the  rule  for  a  new  trial, 
and  the  judgment  is  affirmed. 


<268  Pa.  m) 
FORD  T.  UEHIGH  &  WIDKES-BABRB 
GOAL.  CX). 

(Supreme  Court  of  Pennsylrania.    May  7, 1917.) 

Masteb  and  Sbbvant  «=»278(10)— Acnow  fob 
Injuby— SumciBNCY  or  Evidbnce. 
Evidence  in  an  action  against  a  minins  com- 
pany to  recover  for  the  death  of  plaintiff's  son, 
killeid  by  a  car  while  attempting  to  ring  a  bell 
used  to  signal  the  engineer  in  charge  of  cars, 
alleging  negligence  in  not  providing  a  safety 
hole  in  which  to  si^al,  evidence  held  to  sus- 
tain a  verdict  for  plaintifE. 

Appeal  from  Court  of  Common  Pleas,  Lu- 
zerne County. 

Trespass  by  Mary  Ann  Ford  against  the 
Lehigh  &  Wilkes-Barre  Coal  Company  to  re- 
cover damages  for  the  death  of  her  son. 
From  a  judgment  on  a  verdict  for  plaintiff, 
defendant  appeals.    Affirmed. 

From  the  record  It  appeared  that  Stanley 
Ford,  the  plalntllTs  son,  was  employed  at  the 
Hollenbach  No.  2  colliery  or  slope  of  the  de- 
fendant In  Luzerne  county  on  April  18,  1914. 
Ford's  duty  was  In  part  to  signal  to  the  en- 
gineer the  manner  in  which  the  trip  was  to 
be  hoisted  or  lowered.  Th^s  signal  was 
given  from  an  electric  push  button,  hanging 
from  a  wire  and  situated  about  three  or  four 
feet  from  the  rail,  and  between  the  slope  and 
a  lift  or  branch.  The  lifts-  are  openings  that 
run  off  from  the  slope  and  vary  in  dimensions. 
The  place  where  Ford  was  killed  was  several 
hundred  feet  from  the  bottom  of  the  slope. 
Two  cars  were  being  lowered  from  the  top  of 
the  slope  by  means  of  a  rope.  In  some  man- 
ner the  lower  car  became  separated  from  the 
car  attached  to  the  rope  and  ran  down  the 
slope,  jumping  the  track  a  few  feet  above  the 
point  where  Ford  was'  attempting  to  ring  the 
bell  to  signal  the  engineer  to  slack  up  on  the 
trip,  striking  him,  and  causing  his  death. 
Verdict  for  the  plaintiff  for  $2,319,  and  judg- 
ment thereon.    Defendant  appealed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT.  POTTER,  FRAZER,  and  WAL- 
LING, JJ. 


Evan  C.  Jones,  Gilbert  S.  McCUntock,  Ar- 
thur Hillman,  and  Andrew  H.  McCllntock,  all 
of  Wilkes-Barre,  for  appellant.  Paul  Bedford 
and  Frank  A.  McGuigan,  both  of  Wilkes- 
Barre,  for  appellee. 

PER  CURIAM.  It  appears  from  the  tes- 
timony In  this  case  that  in  other  mines;  and 
la  other  parts  of  appellant's  mine,  the  signal 
to  hoist  or  lower  cars  was  located  In  a  safety 
hole.  If  the  deceased  had  been  In  sudi  a 
h61e  when  he  was  attempting  to  ring  the  bell 
to  signal  the  engineer,  he  could  not  have  been 
struck  by  the  car,  which  ran  down  the  slope 
and  jumped  the  trade.  Whether  the  defend- 
ant's failure  to  provide  a  safety  hole,  where 
the  deceased  was  working,  was  negligence, 
was  properly  regarded  by  the  learned  trial 
judge  as  a  question  of  fact  for  the  jury. 

It  was  the  only  question  in  the  case,  and 
judgment  on  the  verdict  is  affirmed. 


(SB  Pa.  IM) 
FRITZ  ▼.  ELK  TANNING  CO. 

(Supreme  Court  of  Pennsylvania.     May  14, 
1917.)       « 

1.  Evidence  «=»528(1)— Opinion  Evidbnc*— 
Cause  of  Illness. 

The  deliberate  opinions  of  physicians  aa  to 
the  cause  of  an  illnesd  are  competent 

2.  Master  and   Sekvant  «=3285(5)  —  Safe 
Place  to  Work — Question  for  Jubt. 

In  an  action  by  the  employ^  of  a  leather 
tanning  company  to  recover  for  injuries  to  his 
health,  alleged  to  have  resulted  from  inhaling 
poisonous  fumes  against  which  he  was  not  pro- 
tected, heidj  on  the  evidence,  that  whether  the 
poisonous  tumes  arose  from  a  vat  and  were 
mhaled  by  him,  and  whether  his  sickness  result- 
ed  therefrom,  were  questions  of  fact. 

3.  Masxeb  and    Sebvant  «=32S4(1)— Aonoir 
FOB  Injury— Question  fob  Jury. 

In  Kuch  action,  where  plaintiff's  case  was 
supported  by  positive  and  circumstantial  evi- 
dence and  by  expert  opinion,  there  was  a  ques- 
tion for  jury,  notwithstanding  the  strength  of 
opposing  proofs. 

4.  New  Trial  «»72— Obouros  —  Ybbdiot 
Against  Wxioht  of  Evidbmok. 

Where  a  verdict  is  against  the  weight  of 
the  evidence,  the  remedy  is  a  new  trial. 
6.  Master  and  Sebvant  *=»107(7)  —  Saw* 
Place  to  Work— PoisoNotra  BVmes— Stat- 
ute. 
Act  May  2,  1906  (P.  L.  352)  {  11,  is  manda- 
tory and   requires  a  leather  tanning  company 
to  know  the  character  of  the  fumes  and  gases 
arising  in   its   bleachrooma,    and,    if   they   are 
poisonous,  to  provide  for  their  elimination ;  and 
where  there  was  no  attempt  to  comply  there- 
with, and  no  claim  that  it  could  not  have  been 
complied  with,  and  the  poisonous  fumes  injured 
a  workman^  witliout  negligence  on  his  own  part, 
he  was  entitled  to  recover. 
6.  Master   and   Servant   €=289(4)— Actioh 
FOB  Injury— Contributory  Negligence. 
In  such  case,  the  fact  that  the  employe,  un- 
der the  assurances  of  the  superintendent  that 
the  fumes  were  not  injurious,  continued  at  his 
work,  did  not  as  a  matter  of  law  charge  him 
with  contributory  negligence. 

Appeal  from  Court  of  Common  Pleas,  Sul- 
livan County. 


A=sPor  otber  cam  see  lame  toplo  and  KBY-NUMBBR  in  all  Kcy-Numbared  Diseats  and  Indezaa 


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Pa.) 


IlirrZ  T.  EliK  TANNINa  oo. 


95» 


Trespass  t>y  NArman  A.  Fritz  against  the 
Blk  Tanning  Oompany  to  recover  damages 
for  the  loss  of  plalntitTs  health,  alleged  to 
baye  resulted  from  defendant's  negligence. 
Verdict  for  plalnUfT  for  $5,000,  and  Judg- 
ment thereon,  and  defendant  appeals.  Af- 
firmed. 

Argued  before  BROWN,  C.  J.,  and  ME.S- 
TREZAT,  POTTER,  FRA2ER,  and  WALL- 
ING,  JJ. 

John  G.  Johnson,  of  Philadelphia,  E.  J. 
Mullen,  of  La  Porte,  and  W.  E.  Rice,  of 
Warren,  for  appellant.  Charles  M.  Culver, 
of  Towanda,  F.  W.  Meylert,  of  La  Porte,  and 
J.  H.  Thayer,  of  Dusbore,  for  appellee. 

WALLING,  J.  Defendant  was  operating 
a  tannery  at  Jamison  City,  In  Sullivan  coun- 
ty, wbere  plaintiff  was  «nployed  from  Octo- 
ber, 1911,  to  February,  1913.  A  long  nar- 
row room,  called  the  bleachroom,  occupied 
one  side  of  the  tannery,  wherein  was  a  tier 
of  five  vats ;  each  being  4^  feet  in  diameter 
and  6  feet  deep.  These  vats  contained  liq- 
uids into  which  the  bides  were  dipped  by 
machinery  in  the  process  of  bleaching.  One 
vat  contained  water  warmed  to  the  temper- 
ature of  126*  Fahrenheit,  into  which  each 
morning  plaintiff  poured  from  a  crock  110 
pounds  of  sulphuric  acid,  sometimes  called 
"oil  of  vitriol."  This  caused  a  hissing  sound, 
and  a  substance  resembling  steam  or  fog  to 
rise  from  the  vat,  covering  the  operator  and 
the  immediate  surroundings.  After  pouring 
in  the  acid,  it  was  the  duty  of  the  operator 
to  stir  the  contents  of  the  vat  with  a  l<Hig 
stick,  called  a  "plunger."  About  16  times 
dally,  it  was  the  operator's  duty  to  replen- 
ish the  vat  with  11  pounds  of  the  acid; 
when  to  some  extent  the  result  above  de- 
scribed would  occur,  as  it  also  would  when 
the  hides  were  dipped  therein.  Plaintiff 
worked  from  10  to  13  hours  a  day,  and  his 
duty  as  operator  in  this  room  required  him 
to  be  near  the  vats  a  large  part  of  the  time. 
The  room  was  about  12  feet  high,  and  con- 
structed with  windows  at  the  sides  and  ven- 
tilators at  the  top,  bat  without  an  exhaust 
fan.  In  warm  weather  the  windows  and 
ventilators  were  open,  bat  in  cold  weather 
defendant  kept  them  closed — In  fact,  caused 
the  vMitllators  to  be  boarded  up  and  batten- 
ed tightly.  There  were  two  large  openings 
between  tliis  and  the  main  room;  but,  as 
the  latter  was  also  kept  closed  in  winter, 
tliat  fact  did  not  greatly  assist  in  changing 
the  air  In  the  bleachroom. 

When  plaintiff  began  this  work,  he  was 
robust,  26  years  of  age,  and  weighed  195 
pounds;  when  he  quit  he  was  a  physical 
wreck,  and  for  16  months  thereafter  walked 
upon  crutches,  and  much  of  that  time  was 
confined  to  the  house,  and  has  not  since  l)een 
able  to  do  any  work.  At  the  time  of  the  trial 
In  1916  he  could  walk  with  the  assistance  of  a 
cane,  and  weighed  140  pounds,  and  seemed  to 
be  permanently  disabled.  Plaintiff  brought 
this  suit  on  the  allegation  that  he  had  not 


been  afforded  a  reasonably  safe  place  lu 
which  to  work,  by  reason  of  whitb  he  had 
become  the  victim  of  sulphnrlc  add  poison- 
ing, and  thereby  lost  his  health.  About  6 
weeks  before  plaintiff  quit  such  employment, 
he  complained  to  the  superintendent  of  the 
tannery  of  ill  health,  described  his  symp- 
toms, and  said  in  effect  that  he  thought  the 
fumes  from  the  vats  were  causing  his  trou- 
ble, and  requested  that  he  be  given  work 
elsewhere.  The  superintendent  assured  him 
that  there  were  no  Injurious  fumes  in  the 
bleachroom,  that  he  must  be  suffering  from 

rheumatism,  and  directed  him  to  return  to 
his  work.  Plaintiff's  symptoms  then  were, 
inter  alia,  drowsiness  and  pain  in  an  eye. 

arm,  and  leg.  Other  ailments  developed 
later,  Including  serious  sores  upon  the  leg, 
and  eye  aflUctlon,  known  as  iritis,  valvular 
heart  trouble,  and  multiple  neuritis,  from  all 
of  which  he  was  suffering  when  the  case  was 
tried  In  the  court  below. 

[1]  It  is  plaintiff's  contention  that,  when 
sulphuric  add  Is  added  to  water  of  the  tem- 
I>erature  above  mentioned,  It  becomes  to  some 
extent  decomposed,  and  gives  off  a  substance 
known  as  sulphur  trloxlde  (S  Os),  which  in 
this  case  arose  from  the  vat  with  the  hot  fog 
and  was  Inhaled  by  the  plaintiff,  and  on  ac- 
count of  the  moisture  and  lower  temperature 
small  particles  of  sulphuric  add  were  re- 
formed and  gradually  poisoned  his  system. 
It  is  conceded  that  such  add  Is  a  corrosive 
poison,  but  defendant  strenuously  denies  that 
it  did  or  could  arise  from  the  vat  under 
such  circumstances.  Dr.  Albertson,  who  at- 
tended plaintiff  from  the  beginning  of  hi:; 
sickness,  expresses  the  opinion  that  it  was^ 
a  case  of  sulphuric  add  poisoning,  from  in- 
haling the  fumes  at  the  tannery.  Dr.  Fish, 
a  prominent  physldan  who  has  given  special 
attention  to  chemistry,  and  who  carefully 
examined  and  considered  plaintiff's  case,  ex- 
presses the  same  opinion,  and  says  he  can 
come  to  no  other  conclusion.  Dr.  Biddle 
says  it  Is  the  result  of  poison  introduced  in- 
to plaintiff's  system.  Plaintiff  and  three  oth- 
er witnesses  testify  that  the  fumes  arising 
from  the  vat  smelled  like  sulphuric  add; 
and  the  experts  agree  that,  if  such  odor  was 
in  the  air.  It  proved  the  presence  of  the  add. 
Mr.  Newhart,  who  did  the  same  work,  In 
the  same  room,  near  the  same  time,  was 
taken  ill  with  like  symptons  and  had  to 
quit  the  work.  He  and  plaintiff  speak  of 
the  irritation  and  burning  sensation  in  the 
nose  and  throat,  and  the  tendency  to  hack 
or  cough,  produced  by  the  fumes  from  the 
vat  Dr.  Fish  says  the  mixing  of  the  sul- 
phuric add  with  the  water  at  such  a  tem- 
perature would  produce  sulphur  trloxlde, 
which,  c  ming  In  contact  with  the  moisture 
in  the  nose  and  throat,  would  reform  into 
small  iwrtides  of  sulphuric  add,  and  dtes 
an  eminent  chemical  authority  In  support  of 
bis  conclusion.  The  deliberate  opinions  of 
physicians  as  to  the  cause  of  Illness  are  com- 
petent    Flaherty  v.  Scranton  Gas  &  Water 


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101  ATLAXW^IO  RBPOBTBB 


(Pa. 


Co.,  30  P^  Saper.  Ct  446;  Brown  v.  Chester 
TracUon  Co.,  230  Pa.  498,  70  AtL  713. 

[2]  There  Is  no  question  but  what  plain- 
tiff's condition  could  result  from  sulphuric 
acid  poisoning;  and  there  Is  the  circum- 
stance ttiat  he  lost  his  health  while  working 
in  the  bleachroom  without  any  other  appar- 
ent cause.  On  the  other  hand,  strong  evi- 
dence was  offered  by  the  defendant,  including 
that  of  eminent  exi)erts,  to  the  effect  thnt 
sulphuric  acid  had  such  a  strong  affinity 
for  water  that  sulphur  trioxlde  could  not  be 
formed  under  the  circumstances  and  rise 
with  the  fumes,  and  that  the  most  delicate 
tests  failed  to  disclose  its  presence,  or  any 
trace  thereof,  and  that  so  mixing  the  sul- 
phuric add  with  the  water  would  not  cause 
poisonous  fumes  to  arise.  A  number  of  phy- 
sicians called  by  defendant,  who  had  made 
a  personal  examination  of  plaintiff  and  of 
the  circumstances  under  which  be  had  worlced 
at  the  tannery,  expressed  the  opinion  that 
Ills  siclcness  had  not  resulted  from  such  pois- 
oning. Some  were  Inclined  to  attribute  the 
origin  of  plaintiff's  Illness  to  rheumatism, 
especially  as  that  would  seem  to  account  for 
the  heart  and  eye  trouble.  However,  there 
is  no  claim  that  he  was  suffering  from  rheu- 
matism when  the  case  was  tried,  and  no  sat- 
isfactory evidence  that  he  was  ever  actually 
afflicted  with  it.  Defendant  also  offered  evi- 
dence to  the  effect  that  the  work  in  this 
bleachroom  was  done  in  the  manner  usual 
and  customary  In  tanneries  throughout  the 
state  and  clsewhi-re,  and  that  such  a  case  of 
sulphuric  acid  poisoning  as  alleged  here  was 
never  known  or  heard  of  before,  and  that 
fact  does  not  seem  to  be  contested,  unless  it 
might  be  In  the  case  of  Mr.  Newhart  above 
referred  to.  However,  some  people  seem  to 
be  more  susceptible  to  such  poison  than  oth- 
ers; and  plaintiff's  theory  is  that  this  is  a 
case  of  chronic  poisoning  from  long-contin- 
ued exposure  to  such  fumes.  We  have  not 
attempted  to  refer  to  the  evidence  of  all  of  the 
wltne.^wes,  nor  to  all  the  evidence  of  any  wit- 
ness, but  only  enough  to  show  that  the  con- 
trolling questions,  as  to  whether  poisonous 
fumes  arose  from  the  vats  and  were  inhaled 
by  plaintiff,  and,  If  so,  whether  his  siclmess 
was  the  result  thereof,  were  questions  of 
fact. 

[3,  4]  Where  seemingly  credible  evidence 
tends  directly  to  establish  the  fiicts  upon 
which  defendant's  liability  depends,  a  ver- 
dict based  thereon  is  not  the  result  of  guess- 
work, although  such  evidence  Is  strongly  con- 


tradicted by  that  snbmitted  for  the  defoise. 
And  where,  as  here,  a  plaintiff's  case  Is  sup- 
ported by  positive  and  circumstantial  evi- 
dence, and  also  by  expert  opinion,  it  must  lie 
submitted  to  the  Jury,  notwithstanding  the 
strength  of  the  opposing  proofs.  In  sndi 
case  the  remedy,  if  the  verdict  be  against 
the  weight  of  the  evldoice,  Is  a  new  trial, 
which  was  not  here  son^t.  The  fact  that 
no  case  like  this  has  come  within  the  knowl- 
edge or  information  of  any  witness  called, 
while  strongly  persuasive.  Is  not  conduslve 
against  the  plaintiff. 

[S]  As  the  case  was  submitted,  the  verdict 
implies  a  finding  by  the  Jury,  not  only  that 
the  fumes  were  poisonous,  but  that  such  fact 
was  or  should  have  been  known  by  the  de- 
fendant, which  was  the  common-law  rule; 
but  under  section  11  of  the  act  of  May  2, 
1905  (P.  li.  3!S2),  It  was  defendant's  duty 
to  know  the  character  of  the  fumes  and  gas- 
es arising  In  its  bleachroom,  and,  if  poison- 
ous, to  provide  for  their  elimination  by  ex- 
haust fans  or  other  sufficient  devices.  As  no 
attempt  was  made  to  comply  with  the  stat- 
ute, and  no  claim  that  it  could  not  have  been 
done,  If  the  fumes  were  poisonous,  and  plain- 
tiff was  Injured  thereby,  without  negligence 
<»i  his  iMUt,  he  was  entitled  to  recover  as 
the  provisions  of  the  statute  are  mandatory. 
Jones  V.  American  Caramel  Co.,  225  Pa.  &44, 
74  AtL  613;  Lanahan  v.  Arasapha  Mfg.  Co., 
240  Pa.  292,  87  Atl.  286;  Kelliher  v.  Brown 
*  Co.,  242  Pa.  499,  89  Atl.  589.  And  see 
Krutlies  v.  Bulls  Head  Coal  Co.,  249  Pa.  162, 
94  Atl.  459,  I*  R.  A.  1915F,  1082. 

[0]  The  fact  that  plaintiff,  under  the  as- 
surance of  the  superintendent,  continued  at 
his  work,  did  not  as  matter  of  law  charge 
him  with  contributory  negligence.  Wagner 
V.  H.  W.  Jayne  Chemical  Co.,  147  Pa.  475, 
23  AU.  772,  30  Am.  St  Rep.  745.  The  court 
below  concludes  an  exhaustive  review  of  the 
law  and  the  facts  by  saving: 

"Bearing  in  mind  the  previous  healthy  condi- 
tion of  the  plaintiff,  the  development  of  his 
symptoms  during  the  winter,  when  not  only  the 
ventilators  over  the  vats  but  also  the  windows 
were  closed,  the  nature  of  the  bleach,  with  its 
accompaniment  of  steam  or  vapor,  the  affirm- 
ative testimony  as  to  the  production  and  escape 
of  sulphur  trioxide,  its  poisonous  character,  and 
the  effect  thereof  upon  the  plaintiff,  and  the 
somewhat  similar  en>ei-ience  of  Newhart,  we 
cannot  reach  the  conclusion  that  we  should  have 
withdrawn  the  case  from  the  Jury,  That  there 
was  weighty  contradiction  does  not  alter  this 
view." 

The  Judgment  la  affirmed. 


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SOL'TH  NORWAL.K  TBUST  CO.  y.  ST.  JOHN 


961 


(B2  Coon.  IBS) 

SOUTH  NORWALK  TRUST  CO.  t.  ST. 
JOHN  et  aL 

(Supreme  Conit  of  Errora  of  Connecticut    Oct. 
4.  1»1T.) 

1.  Wuxs  «s>384— Pbobats— Apfbaus— ScoFK 

OF  BXVIEW. 

On  apiwal  to  the  superior  court  from  an  or- 
der and  decree  of  the  probate  court  admitting 
a  will  to  probate,  the  special  atatutor;  issue  as 
to  whether  the  will  was  a  valid  will  was  the 
sole  issue. 

2.  Wills  «=»6e5— Oonditionb  Agaiwst  Con- 

Where  children  of  a  testator  appealed  from 
an  order  admitting  the  will  to  probate,  thereby 
raising  the  special  statutory  issue  as  to  whether 
the  will  was  valid,  they  violated  a  provision  of 
the  will  that  any  beneficiary  of  the  will  contest- 
ing its  probate  or  operation,  or  seeking  to  set  it 
aside  or  annul  it,  should  forfeit  the  interest  giv- 
en such  beneficiary  by  the  will,  though  they  at- 
tempted to  conceal  their  purpose  to  contest  the 
will  by  stipulating  that  the  only  questions  to  be 
determined  were  whether  a  provision  in  the  will 
was  void  onder  the  law  against  perpetuities  and 
whether  a  gift  of  income  without  limitation 
passed  an  absolute  estate. 
8.  Wills  «=s>665— Conditions  Against  Con- 
tests—Bbkach. 
An  action  by  a  legatee  to  determine  the 
true  construction  of  a  will  or  of  any  of  its  parts 
is  Dot  a  breach  of  the  ordinary  provision  for  for- 
feiture in  case  of  a  contest,  as  the  object  of  such 
an  action  is  not  to  make  void  the  wUl  or  any 
of  Its  parts,  bnt  to  ascertain  its  true  legal  mean- 
ing. 

4.  Wills  «=>651— Conmtionb  Against  Con- 
tests—Validity. 
Under  a  provision  in  a  will  for  a  forfeiture 
of  the  rights  of  any  beneficiary  contesting  the 
wUl,  a  beneficiary  does  not  forfeit  his  rights  by 
bringing  a  contest  for  which  there  is  a  reason- 
able ground,  as  the  law  is  vitally  interested  in 
having  property  transmitted  by  will  under  the 
conditions  it  prescribes,  and  none  others,  and 
if  those  interested  are  forced  to  remain  silent 
the  court  will  be  unable  to  ascertain  the  truth, 
and  those  who  would  profit  by  a  will  procured 
by  undue  influence  or  made  by  one  lacking  testa- 
mentary capacity  would  thereby  be  aided  in 
their  wrongful  designs. 

6.  Wills  «=>666— Conditions  Against  Con- 
tests—Waivbb  OF  FoRFErruiOB. 
Under  a  will  providing  for  forfeitnre  in  case 
of  a  contest,  where  all  the  children  and  bene- 
ficiaries  united   in    a   contest,   they   could   not 
waive  the  forfeiture  on   the  ground  that  they 
were  the  only  persons  who  could  claim  a  forfei- 
ture, as  the  condition  of  forfeiture  was  not  for 
the   benefit  of  the   other   benefidariea,   bnt   to 
carry  out  the  wishes  of  the  testator. 
0.  Wills  <§=s>865(1)  —  Fobfeitdbes  —  Intes- 
tacy. 
In  such  case,  all  of  the  children  having  for- 
feited  all  of  their  rights   under  the  will,   the 
property  of  the  testator  was  intestate  estate. 

Case  Reserved  from  Superior  Court,  Fair- 
field County;   Howard  J.  Curtis,  Judge. 

Suit  by  the  South  Norwalk  Trust  Com- 
pany, executor  and  trustee,  against  Mary  D. 
St.  John  and  others,  to  determine  the  validi- 
ty and  construction  of  the  will  of  Oscar  St. 
John,  deceased.  Reserved  upon  an  agreed 
finding  of  facts  for  the  advice  of  the  Supreme 
Court  of  Brrora  Superior  court  advised  in 
accordance  with  the  opinion. 


Oscar  St  John,  late  of  Norwalk,  died  Sep- 
tember 4,  1912,  possessed  of  both  real  and 
personal  estate.  He  left  a  will  which  was 
duly  probated,  in  which  the  plaintiff  was 
named  as  executor  and  trustee.  The  estate 
has  been  settled.  The  plaintlfT  qualified  as 
trustee,  and  there  remains  in  his  hands  as 
such  trustee  certain  real  and  personal  prop- 
erty. The  testator  left  a  widow,  the  said 
Mary  D.  St  John,  who  died  February  1, 1917, 
subsequent  to  this  action,  and  eight  dilldren, 
his  only  heirs  at  law,  who  are  now  Uvtag. 
Several  of  these  children  have  minor  chil- 
dren, who  with  said  eight  children  are  made 
parties.  Mrs.  St.  John's  death  has  been  sug- 
gested upon  the  record,  and  the  administra- 
tor of  her  estate  has  entered  an  appearance. 

The  probate  court  admitted  to  probate  the 
will  of  Mr.  St  John,  and  all  of  the  eight 
children  appealed  from  this  order  and  decree. 
On  that  appeal  no  evidence  was  submitted 
to  the  superior  court  The  parties  to  the  ap- 
peal stipulated  that  the  only  questions  to  be 
determined  were  whether  or  not  the  whole 
or  any  part  of  section  7  of  the  will  was  void 
under  the  law  against  perpetuities,  and 
whether  the  gift  therein  of  the  Income  to  the 
chlldien  of  the  testator,  without  limitation, 
passed  an  absolute  estate  in  the  property  ia 
question  to  such  children. 

The  will  of  Mr.  St.  John  gave  to  his  wife 
all  the  personal  property  and  effects  In  his 
homestead,  and  provided  that  she  should 
have  the  use  and  enjoyment  of  the  home- 
stead free  of  rent  and  all  other  charges  until 
it  should  be  sold.  It  directed  the  executor 
to  sell  this  real  estate  as  soon  as  such  sale 
oould  be  advantageously  made.  The  pro- 
ceeds of  this  sale  as  designated  In  paragraph 
second,  and  of  certain  personal  property 
specifically  designated  in  paragraphs  fourth 
and  fifth,  and  all  the  rest,  residue,  and  re- 
mainder of  the  testator's  estate^  was  then 
given  to  the  plaintiff  in  trust  By  the  terms 
of  the  trust,  defined  in  the  seventh  para- 
graph,  the  trustee  was  directed  to  pay  to  his 
wife  during  her  life,  in  full  of  all  dower  and 
rights  she  might  have  in  the  testator's  estate, 
certain  sums  of  money  in  quarterly  payments. 
This  direction  was  supplemented  by  the  fol- 
lowing: 

"And  after  the  decease  of  my  said  wife,  to  pay 
the  net  income  from  my  trust  estate  equally  to 
my  children  [names  given]  annually,  and  to  their 
heirs  forever,  free  from  the  control  of  the  hus- 
band of  any  of  my  said  children;  and  if  any 
of  my  said  children  should  die  without  leaving 
lawful  issue  then  and  in  such  event  I  direct  that 
the  share  of  such  child  so  dying  in  and  to  the 
income  from  my  said  trust  estate  shall  be  dis- 
tributed among  and  paid  to  my  surviving  chil- 
dren and  their  heirs  in  equal  pi^oportions;  the 
heirs  of  any  child  so  dying  to  take  the  share 
which  their  parent  would  have  been  entitled  to 
receive  if  living." 

Tbid  eighth  paragraph  was  as  follows : 
"To  the  end  that  there  may  be  no  wasting  of 
my   estate   by   litigation   pertaininc   thereto,   I 
hereby  declare,  and  it  is  my  will,  tnat  any  pro- 


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101  ATLANTIC  REPORTER 


(ponn. 


Tiaion  made  herein  in  favor  of  m;  wife  and  of 
any  of  m;  diildren,  shaU,  as  to  mj  aaid  'wife  or 
a«  to  audi  children,  be  nail  and  void  in  the  event 
of  any  one  of  them  presenting  any  claim  against 
my  estate,  or  in  any  way  contesting  the  probate 
or  operation  of  thia  my  will,  or  in  any  way  seek- 
ing to  set  aside  or  annulling  this  my  said  will; 
and  in  snch  event,  the  provision  for  the  payment 
of  income  to  my  said  wife,  or  for  the  payment 
of  income  to  such  child,  as  the  case  may  be,  by 
this  paragraph  of  my  said  will  made  null  and 
void,  shall  b«  held  by  my  said  trustee  for  the 
benefit  of  the  remainmg  beneficiaries  under  this 
will,  and  increase  their  several  shares  in  like 
proportion  as  to  income  as  is  herein  provided." 

Ju'dgment  was  rendered  In  the  superior 
court,  afflrmlng  the  action  of  the  probate 
court  and  refusing  to  pass  upon  the  ques- 
tions of  construction.  The  questions  npon 
which  advice  is  desired  are  the  following : 

"(a)  Whether  any  legal  effect  can  be  given  to 
any  part  of  the  fourth,  fifth,  and  seventh'  para- 
graphs of  said  will,  and,  if  ao,  what ;  and  wheth- 
er or  not  all  or  any  part  of  said  sections  are  or 
are  not  void;  and  whether  any  portion  of  the 
purposes  contemplated  by  aaid  sections  can  be 
made  legally  operative? 

"(b)  Whether  the  trusts  made  or  which  it  was 
contemplated  or  attempted  to  be  made  or  to 
make  in  said  sections  are  valid,  legal,  and  oper- 
ative, and  capable  of  being  earned  out  in  any  1*- 
gal  manner,  and,  if  so,  how;  and  whether  the 
trust  estates  created  thereby,  or  which  it  was 
attempted  to  create,  are  now  valid  and  subsist- 
ing estates;  and  whether  the  provisions  for  ac- 
cumulation therein  contained  are  legal  and 
valid  provisions,  and,  if  not,  whether  the  other 
provisions  of  said  sections  are  thereby  rendered 
inoperative  and  void? 

"(c)  Whether  the  provisions  of  said  sections 
SQwend  the  power  of  alienation  for  more  than 
two  lives,  either  actually  or  by  possibility ;  and 
whether,  if  said  power  of  alienation  be  suspend- 
ed for  more  than  two  lives,  the  trusts  which  the 
testator  sought  to  create  are  thereby  rendered 
inoperative  and  void? 

"(d)  Whether  the  trusts,  which  it  was  sought 
to  create  by  said  sections,  are  or  are  not  void 
for  uncertainty,  indefiniteness,  and  a  failure  of 
the  object  of  Uie  testator's  bounty? 

"(e)  Whether  or  not  the  defendants,  or  any  of 
them,  and,  if  so,  who,  have  violated  the  eighth 
paragraph  of  said  will  by  contesting  the  probate 
or  operation  of  said  will,  or  have  sought  to  set 
aside  or  annul  said  will,  and,  if  so,  whether 
or  not  the  provisions  in  said  will  in  favor  of 
such  defendants  are  null  and  void;  and  whether 
or  not  such  defendants  have  forfeited  their  right, 
title,  interest,  and  claim  in  and  to  said  estate 
by  violating  said  paragraph  8,  and,  if  so,  to 
whom  the  estate  of  said  deceased,  and  the  in- 
come therefrom,  should  be  paid?" 

Joseph  R.  Taylor,  of  South  Norwalk,  for 
plaintiff.  John  R.  Ldght  and  Freeman  Light, 
both  of  South  Norwalk,  for  defendant  Bertha 
E.  St.  John  and  another.  Thomas  O.  Cough- 
lln,  of  Bridgeport,  for  defendant  Clifford  M. 
St  John  and  others.  William  F.  Tammany, 
of  South  NorwallE,  for  defendant  Oscar  B. 
St  John. 

WHEELER,  J.  (after  stating  the  fbcts  as 
above).  One  of  the  questions  submitted  for 
our  advice  Is  whether  or  not  the  children  of 
the  testator  have  forfeited  their  claim  to  the 
estate  by  having  violated  paragraph  eighth, 
and,  if  so,  to  whom  the  estate  and  the  in- 
come should  be  paid.  If  the  eighth  para- 
graph be  valid  and  literally  interpreted,  and 


the  children  have  violated  It,  they  have  for- 
feited th^r  claim  to  any  part  of  this  estate. 
The  consideration  of  this  question  should  pre- 
cede all  other  questions,  for,  if  the  chlfdren 
have  forfeited  their  claim  to  this  estate,  so 
far  as  they  are  concerned,  consideration  of 
other  questions  under  the  will  is  academic. 

[1]  The  an>eal  from  the  court  of  probate 
took  up  to  the  superior  court  the  specdal  stat- 
utory Issue,  whether  the  will  was  a  valid 
will.  That  was  the  sole  issue  of  the  ai^)eal. 
St  Leger's  Appeal,  34  Conn.  434,  447,  91  Am. 
Dec.  735.  The  parties  subsequently,  In  a 
very  apparent  attempt  to  avoid  the  conse- 
quences of  having  contested  the  wiU,  stipu- 
lated that  the  only  question  to  be  determined 
upon  the  appeal  was  as  to  the  ccmstructlon  of 
paragraph  7.  Counsel  for  the  trust  company 
in  his  brief  perslsta  in  assuming  the  existence 
of  this  wholly  artificial  irasitlon,  but  the 
counsel  fbr  the  diildren  franldy  admit  the 
real  situation  In  thetr  brief  when  they  say : 

"The  widow  and  all  of  the  children  joined  in 
an  appeal  from  the  order  and  decree  of  the 
court  of  probate  for  the  district  of  Norwalk  ad- 
mitting the  will  to  probate,  on  the  ground  that 
the  testator  was  of  unsound  mind  when  the  will 
was  made  and  executed,  but  they  afterward 
came  to  feel  such  a  dread  of  the  consequences 
which  would  follow  from  legally  establishing  th* 
mental  Incapacity  of  the  testator  that  they  in- 
structed counsel  not  to  pursue  tiiat  feature  of 
the  case,  and,  instead,  to  have  the  court  detet^ 
mine  the  legality  of  the  trust  created  by  the 
will." 

Two  things  are  to  be  noted  about  thia  state- 
ment: (1)  It  Is  an  Inaccuracy  to  state  that 
the  widow  joined  In  this  appeaL  (2)  Gounsd 
seek  to  bring  the  case  'wlthln  one  of  the  ex- 
ceptions which  some  Jurisdictions  sustain,  to 
the  general  rule  supporting  forfeiture  clauses 
of  the  character  of  that  In  this  will,  by  as- 
suming that  there  exlste  probaballs  cause 
Utigandl. 

[2]  The  appeal  was  an  attack  upon  the  va- 
lidity of  the  will,  and  the  subseqn«it  effort 
of  the  children  to  conceal  this  purpose  must 
fall.  The  children  by  their  appeal  engaged  in 
an  act  which  the  testator  attempted  to  pen- 
alize by  prescribing  a  forfeiture  of  the  In- 
terest given  them  by  his  wllL  Substantially- 
all  authorities  agree  that  a  testator  may  In 
some  cases  Impose  upon  a  l^atee  a  condition 
forfeiting  his  legacy  If  he  contest  the  validity 
of  the  will.  Counsel  for  the  dilldren  concede 
this,  for  they  say  In  their  brief: 

"While  the  validity  of  such  condition  is  gener- 
ally recognised,  the  exceptions  to  its  operation 
have  intrenchea  upon  ita  effectiveness." 

In  England  the  action  to  secure  a  legacy 
could  be  had  In  the  ecclesiastical  courts, 
where  the  rule  of  the  civil  law  prevailed,  in 
which  a  fiction  had  been  adopted  that,  unless 
there  was  a  gift  over  of  such  a  legacy,  no 
forfeiture  would  be  decreed.  The  English 
court  of  equity  accepted  this  rule,  and  en- 
forced it  as  to  legacies  of  personal  property, 
but  not  as  to  devises  of  land.  It  was  eariy 
pointed  out  by  American  text-writers  and  Jn- 
rista  that  there  was  no  substantial  ground 


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Conn.) 


SOUTH  NOR  WALK  TRUST  CO.  y.  ST.  JOHK 


963 


for  any  dlstlnctloQ  In  this  respect  between 
real  and  personal  estate,  and  that  the  ex- 
ception was  purely  an  artificial  one,  and  nn- 
snpported  by  any  adequate  reason.  Some 
few  ot  the  American  courts  have  adopted  the 
English  view,  although  In  some  Instances 
recognising  that  the  exception  is  not  based 
on  any  satisfactory  reason.  Fifield  ▼.  Van 
Wyck,  94  Va.  663,  27  S.  B.  446.  64  Am.  St 
Rep.  745;  Friend's  Estate,  209  Pa.  442,  446, 
58  Atl.  8S3,  68  L.  R.  A.  447 ;  Matter  of  Ar- 
rowsmlth,  162  App.  Dlv.  623,  628,  147  N.  T. 
Supp.  1016.  The  great  majority  of  the  Amer- 
ican courts  have  r^udlated  this  exception. 
Bradford  y.  Bradford,  10  Ohio  St  546»  547, 
2  Am.  Rep.  419;  Moran  y.  M'oran,  144  Iowa, 
461,  462,  123  N.  W.  202,  80  L.  R.  A.  (N.  S.) 
808;  Thompson  y.  Gaut,  14  Lea  (Tenn.)  810, 
315;  Estate  of  Bite,  165  Cal.  436,  445,  101 
Pac.  443,  21  L.  R.  A.  (N.  S.)  053,  17  Ann.  Oaa. 
093 ;  Donegan  y.  Wade,  70  Ala.  501 ;  Holt  v. 
Holt  42  N.  J.  Bq.  388,  7  AU.  856,  50  Am.  Rep. 
43;  Massie  v.  Massie,  54  Tex.  Cly.  App.  617, 
118  S.  W.  219;  Smithsonian  Inst  v.  Meech, 
169  U.  S.  808,  413,  18  Sup.  Ct  306,  42  L.  Ed. 
798. 

Most  of  these  authorities  support  a  condi- 
tion of  forfeiture  without  recognizing  any  ex- 
ception. Their  underlying  principle  is  that 
since  the  testator  may  attach  any  condition 
to  bis  gift  whidi  is  not  violative  of  law  or 
public  policy,  the  legatee  must  either  take 
the  gift  with  its  conditions,  or  reject  It.  The 
dispositicm  of  these  authorities  has  been  to 
sustain  forfeiture  clauses  as  a  method  of  pre- 
venting will  contests  which  so  often  breed 
famUy  antagonisms,  and  expose  family  se- 
crets better  left  untold,  and  result  In  a  waste 
of  estates  through  expensive  and  long  drawn 
out  UtigaUon. 

The  children  suggest  the  possible  approval 
of  this  exception,  based  on  the  failure  to 
provide  for  a  gift  over,  but  the  trustee  omits 
reference  to  it  The  trustee  relies  upon  the 
appeal  having  been  one  to  secure  the  con- 
struction of  the  will,  rather  than  one  to  con- 
test its  validity.  And  both  trustee  and  dill- 
dren  unite  in  urging  upon  us  as  an  exception 
to  the  rule  of  forfeiture  the  exception  that 
if  reas(mable  cause  exist  for  the  contest  a 
forfeiture  will  not  be  decreed.  And  they  far- 
ther urge  that  a  forfeiture  has  been  waived 
by  them  through  their  acquiescence  in  the  ex- 
ecution of  the  will. 

[3]  One  of  the  claimed  exceptions  to  the 
general  rule  of  forfeiture  Is  not  an  excep- 
tion. If  the  action  of  a  legatee  is  merely  one 
to  detemdne  the  true  construction  of  the 
will,  or  of  any  of  Its  parts,  the  action  could 
not  be  held  to  breach  the  ordinary  forfeiture 
clause,  for  the  object  of  the  action  is  not 
to  make  void  the  will,  or  any  of  its  parts,  but 
to  ascertain  Its  true  legal  meaning.  Black 
V.  Herring,  79  Md.  152,  28  AtL  1063;  Schoul- 
er  on  Wills  (5th  Ed.)  {  606.  The  appeal  taken 
from  the  decree  of  the  probate  court  did  not 
as  we  have  before  pointed  out,  raise  the  ques- 
tion of  the  construction  of  this  wiU. 


[4]  The  exception  that  a  contest  for  whidi 
there  is  a  reasonable  groun'd  wUl  not  work 
a  forfeiture  stands  upon  better  ground.  It 
Is  quite  likely  true  that  the  authoritiee  to 
greater  number  refuse  to  accept  this  excep- 
tion, but  we  think  it  has  behind  it  the  better 
reason.  It  rests  upon  a  sound  public  policy. 
The  law  prescribes  who  may  make  a  will  and 
how  it  shall  be  made;  that  It  must  be  exe- 
cuted In  a  named  mode,  by  a  person  having 
testamentary  capacity  and  acting  freely,  and 
not  under  undue  Influence.  The  law  Is  vital- 
ly Interested  In  having  property  transmitted 
by  will  under  these,  con'dltloas,  and  none 
others. 

Courts  cannot  know  whether  a  wlU,  good 
on  its  face,  was  made  in  conformity  to  stat- 
utory requirements,  whether  the  testator  was 
of  sound  mind,  and  whether  the  will  was  the 
product  of  undue  Influence,  unless  these  mat- 
ters are  presented  In  court  And  those  only 
who  have  an  Interest  in  the  will  will  have  the 
disposition  to  lay  the  facts  before  the  court. 
If  they  are  forced  to  remain  silent  upon 
penalty  of  forfeiture  of  a  legacy  or  devise 
given  them  by  the  will,  the  court  will  be  pre- 
vented by  the  command  of  the  testator  from 
ascertaining  the  truth,  and  the  'devolution  of 
pn^ierty  will  be  had  In  a  manner  against 
both  statutory  and  common  law.  Courts  ex- 
ist to  ascertain  the  truth  and  to  apply  It  to  a 
given  situation,  and  a  right  of  devolution 
which  enables  a  testator  to  shut  the  door  of 
truth  and  prevent  the  observance  of  the  law 
is  a  mistaken  public  policy.  If,  on  contest 
the  will  should  have  been  held  Invalid,  the 
Uteral  interpretation  of  the  forfeiture  pro- 
vision has  suppressed  the  truth  and  Impeded 
the  true  course  of  Justice.  If  the  will  should 
be  held  valid,  no  harm  has  been  done  through 
the  contest  except  the  delay  and  the  attend- 
ant expense. 

Where  the  contest  has  not  been  made  in 
good  faith,  and  upon  probable  cause  and  rea- 
sonable Justification,  the  forfeiture  should  be 
given  full  operative  effect  Where  the  con- 
trary appears,  the  legatee  ought  not  to  for- 
feit his  legacy.  He  has  been  engaged  in  help- 
ing the  court  to  ascertain  whether  the  in- 
strument purporting  to  be  the  will  of  the  tes- 
tator Is  such.  The  contest  will  not  defeat 
the  valid  will,  but  It  may,  as  it  ought,  the  in- 
valid will.  The  effect  of  broadly  interpret- 
ing a  forfeiture  clause  as  barring  all  contests 
on  penalty  of  forfeiture,  whether  made  on 
probable  cause  or  not  will  furnish  those  who 
would  profit  by  a  will  procured  by  undue  in- 
fluence, or  made  by  one  lacking  testamentary 
cajMicity,  with  a  helpful  cover  for  their 
wrongful  designs. 

The  practical  dlfflcultles  following  this  ex- 
ception are  more  apparent  than  real.  Ccm- 
tests  will  be  made  only  in  causes  where  they 
are  Justified.  Doubtful  cases  will  not  Invite 
a  forfeiture.  There  will  be  no  more  burden 
put  upon  the  court  in  finding  the  fact  of 
probable  cause  than  in  finding  similar  facts 
in  other  classes  of  cases.    Schouler  on  Wills 


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101  ATIiANTIO  RBPORTKR 


(Ud. 


(6tb  Ed.)  S  605,  states  hla  view  npon  this  sub- 
ject thus: 

"To  exclude  all  contest  of  the  probate  on  rea- 
sonable ground  that  the  testator  was  Insane  or 
unduly  influenced  when  he  made  it  is  to  intrench 
fraud  and  coercion  more  securely;  and  public 
policy  should  not  concede  that  a  le^tee,  no  mat- 
ter what  ground  of  litigation  existed,  must  for- 
feit his  legacy  if  the  will  is  finally  admitted." 
Estate  of  Hite,  155  CaL  436,  101  Pac.  443,  21  L. 
K.  A.  (N.  S.)  953,  17  Ann.  Cas.  903;  Friend's 
Estate,  209  Pa.  444.  58  AU.  85.3,  68  L.  R.  A. 
447;  Jackson  t.  Westerfield,  61  How.  Prac. 
(N.  Y.)  399:  In  re  Kathan's  Will.  141  N.  Y. 
Supp.  705,  710;  Smithsonian  Inst  v.  Meech, 
109  U.  S.  413,  18  Sup.  Ct.  396,  42  L.  Ed.  793; 
Cooke  V.  Turner,  14  Simons,  493;  Morris  v. 
Burroughs,  1  Atk.  401. 

The  facts  of  record  are  silent  as  to  wheth- 
er this  contest  was  begun  In  good  faith,  and 
whether  there  was  probable  cause  and  rea- 
sonable justlflcation.  The  stipulated  facts 
do  not  bring  the  case  within  this  exception. 

[6]  These  beneficiaries  say  that  they  are 
the  only  persons  who  could  claim  a  forfei- 
ture, and  as  they  are  all  in  court,  request- 
ing a  division  of  the  property  In  puiBuance 
of  the  provisions  of  the  will,  they  must  be 
held  to  have  waived  the  right  to  claim  a  for- 
feiture, and  to  have  acquiesced  In  the  execu- 
tion of  the  will  as  a  valid  wilL  The  court 
has  before  It  a  will  providing  for  a  forfei- 
ture, and  facts  showing  the  existence  of  the 
forfeiture.  Under  those  conditions,  the  court 
could  not  permit  the  testator's  expressed  will 
to  be  rendered  nugatory  by  the  consent  of 
bis  beneficiaries.  Its  duty  is  to  see  that 
the  testator's  intention  Is  consummated.  The 
clause  of  forfeiture  Is  one  beneficiaries  can- 
not waive.  They  may  waive  a  known  right 
of  their  own.  They  cannot  waive  a  right 
which  was  exclusively  the  testator's,  and  one 
which  he  made  a  condition  of  his  bounty  and 
a  guide  to  the  devolution  of  his  estate. 

Let  us  suppose  that  only  one  of  six  bene- 
ficiaries had  forfeited  his  right  to  a  bequest 
Could  all  the  other  beneficiaries  waive  the 
forijeiture?  Could  an  executor  or  a  trustee 
refuse  to  present  the  facts  of  waiver  before 
the  court?  And  Is  not  his  duty  to  insist  up- 
on the  forfeiture,  and  thus  to  carry  out  the 
will  of  the  testator?  We  find  no  authority 
which  supports  the  claim  of  waiver  of  this 
forfeiture,  except  Williams  ▼.  Williams,  15 
Lea  (Tenn.)  438,  454.  Authority  upon  the 
point  Is  limited,  but  against  this  view. 
Agreements  by  beneficiaries  cannot  ralldate 
a  void  trust  Schouler  on  Wills  (5th  Ed.)  { 
1072;  Dresser  v.  Travis,  39  Misc.  Sep.  358, 
79  N.  T.  Supp.  929. 

It  is  a  well-recognized  rule  of  law  that 
contracts  between  devisees  and  legatees  are 
not  mforceable,  when  made  with  the  appai^ 
ent  purpose  of  thwarting  the  testator's  de- 
sires. Merder  v.  Mercier,  60  Ga.  546, 15  Am. 
Rep.  684 ;  Cuthbert  v.  Chawnet  et  al.,  136  N. 
I.  326,  332.  32  N.  R  1088,  18  L.  R.  A.  745. 
This  condition  of  forfeiture  Is  not  made  for 
the  benefit  of  the  other  beneficiaries,  but  to 


carry  out  the  wishes  of  tbe  testator.  It  is 
totally  apart  from  a  condition  subsequent  for 
the  benefit  of  a  third  party,  as  where  a  wlU 
bequeathed  land  to  a  testator's  heirs  on  con- 
dition that  they  pay  for  certain  improve- 
ments to  the  heirs  of  S.  The  latter  could 
waive  the  payment,  for  It  was  for  their  bene- 
fit Such  a  waiver  does  not  defeat  the  testa- 
tor's will.  Hill  V.  GlanelU,  221  IlL  286,  77 
N.  E.  458,  112  Am.  St  Rep.  182. 

[I]  The  superior  court  Is  advised  that  said 
eight  children,  by  contesting  the  probate  of 
the  will  of  Oscar  St  John,  have  forfeited  all 
rights  under  his  will,  and  that  the  property 
in  plaintifTs  hands  is  Intestate  estate.  No 
costs  In  this  court  will  be  taxed  In  favor  of 
any  of  the  parties.  The  other  Judges  con- 
curred, 

<m  Md.  204) 
EVANS    MARBLE    00.    OF    BALTIMORi 
GIT7  V.  ABRAMS  et  aL    (No.  19.) 

(Court  of  Appeals  of  Maryland.    June  28,  1917. 

Motion  for  Reargument  Overruled 

Oct  8,  19170 

1.  JTn>iciAL  Saucs  «=>39  — Iradequaot  or 

PUCB— EllTECT. 

Sales  by  trustees  made  under  decrees  of 
equity  will  not  be  invalidated  on  account  of 
inadeouacy  of  price,  unless  it  is  so  gross  and 
inordinate  as  to  indicate  misconduct  or  fraud 
on  the  part  of  the  trustee,  or  some  mistake  or 
unfairness  {or  wliich  the  purchaser  is  respon- 
Bible. 

2.  JuDioiAi,  8aij:8  €=>31(2)— InrENDioenTS. 

Every  intendment  will  be  made  to  support  a 
judicial  sale,  but  ratification  will  be  denied, 
where  injustice  will  result,  by  reason  of  the 
carelessness  or  omission  of  an  officer,  to  a  person 
not  in  default 

3.  Judicial  Salxs  «=>35  —  Vacation  — 
Grounds. 

Judicial  sales  will  not  be  set  aside  for 
causes  which  the  parties  in  interest  might  with 
reasonable  degree  of  diligence  have  obviated. 

4.  MoBTOAOBs  «=>526(2)  —  Sales— INADKQDA-' 
CY  of  Price. 

On  objection  to  the  ratification  of  a  for^ 
dosure  sale,  evidence  held  to  show  that  the  in- 
adequacy of  price  was  not  so  gross  as  to  indi- 
cate fraud,  etc.,  on  the  part  of  the  trustee. 

5.  MoBTOAOKS   «='526(2)— Sales— Advebtisx- 

MENT. 

Where  property  to  be  sold  on  foreclosure  was 
advertised  as  valuable  leaseholds,  and  the  num- 
bers of  the  nremises  were  given,  and  the  im- 
provements described  so  that  a  reader  could  as- 
certain that  the  two  leaseholds  were  to  be  sold 
together  and  where  they  were  located,  the  ad> 
Tertisement,  which  gave  the  descriptions  of  the 
leaseholds  and  the  rents  to  which  they  were 
subject  was  not  so  insufficient  as  to  warrant 
vacation  of  the  trustee's  report  of  sale,  for 
prospective  purchasers  could  ascertain  what 
property  was  to  be  disposed  of,  and  defects  in 
tiie  advertisement  did  not  cause  the  inadequacy 
of  price,  which  was  not  so  great  as  to  show 
fraud,  etc. 

Appeal  from  Circuit  Court  No.  2  of  Balti- 
more City;  Carroll  T.  Bond,  Judge. 

Suit  by  the  Evans  Marble  Company  of 
Baltimore  City  against  George  W.  Abrama 
and  another.  From  a  decree  sustaining  ex- 
ceptions to  ratification  of  trustee's  report  of 


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EVANS  MARBLE  CO.  t.  ABRAMS 


965 


sale  and  setting  aside  tbe  sale,  complainant 
appeals.  Decree  reversed,  and  cause  re- 
manded. 

Argued  before  BOYD,  O.  J.,  and  BRIS- 
COE. BURKB,  THOMAS,  PATTISON, 
STOCKBRIDGE,  and  CONSTABLE,  JJ. 

Wm.  Edgar  Byrd  and  John  L.  6.  Lee,  both 
of  Baltimore,  for  appellant.  Read  A.  Mc- 
Caffrey, of  Baltimore,  for  appellees. 

CONSTABLE,  J.  This  appeal  is  from  a 
decree  sustaining  exceptions  filed  to  the  rati- 
fication of  a  trustee's  report  of  sale  and 
setting  aside  of  said  sal&  George  W.  Ab- 
rams  and  Alexander  J.  Abrams,  Jr.,  gave  to 
the  appellant  in  1894  a  mortgage  on  lease- 
hold properties  in  the  dty  of  Baltimore  to  se- 
cure the  payment  of  $988.37.  Default  having 
been  made  In  the  payment  of  the  mortgage 
debt,  the  appellant  filed  his  petition  to  fore- 
close said  mortgage.  The  usual  decree  to  sell 
the  property  was  passed,  and  a  trustee  ap- 
pointed for  that  purpose.  The  appellant  also 
filed  In  said  proceedings  a  claim  under  a 
second  mortgage  from  the  same  parties  to  it. 
The  trustee  offered  the  property  described  in 
the  mortgage  at  public  sale  on  the  premises, 
and  sold  the  same,  in  Its  entirety,  to  Pat- 
rick J.  Cushen  for  the  sum  of  $1^26.  The 
surviving  mortgagor  filed  exceptions  to  the 
ratification  of  the  sale  upon  several  grounds, 
all  of  which,  except  two,  have  been  abandon- 
ed and  need  not  be  adverted  to.  The  two 
reasons  relied  upon  by  the  appellee  for  an 
afiirmance  of  the  decree  passed  are,  first, 
that  the  property  was  sold  for  a  greatly  In- 
adequate price;  second,  because  of  the  inju- 
dicious, improper,  and  insuflSdent  advertising 
of  said  sale. 

[1-3]  The  law  of  this  state  is  firmly  set- 
tled. In  a  long  line  of  decisions,  that,  in  sales 
made  by  trustees  under  decrees  in  equity, 
mere  Inadequacy  of  price,  standing  b^  itself, 
Is  not  sufficient  to  invalidate  a  sale,  unless 
It  be  so  gross  and  Inordinate  as  to  indicate 
want  of  reasonable  judgment  and  discretion, 
or  misconduct  or  fraud  In  the  trustees,  or 
some  mistake  or  unfairness  for  which  the  pur- 
chaser is  responsible.  Every  intendment  will 
be  made  to  support  such  sales,  but  where  it 
is  seen  an  injustice  will  be  done,  through 
the  ratification  of  a  sale,  a  person  not  in 
default,  by  reason  of  the  carelessness  or  omis- 
sion of  its  own  officer,  the  court  will  inter- 
fere to  prevent  It.  Sales  will  not  be  set 
aside  for  causes  that  the  parties  In  interest 
might,  with  a  reasonable  degree  of  diligence, 
bare  obviated.  Johnson  v.  Dorsey,  7  Gill, 
268 :  Eauflman  v.  Walker,  9  Md.  229 :  Bank 
▼.  Lanahan,  4S  Md.  397 ;  Loeber  v.  Eckes,  65 
Md.  1:  Stewart  v.  Devries,  81  Md.  528,  32 
AtL  285 :  Thomas  v.  Fewster,  96  Md.  446,  62 
Atl.  750. 

[4]  The  mortgage  covered  two  contiguous 
leasehold  tracts  of  ground  containing,  approx- 
imately, 6,500  square  feet  and  7,200  square 
feet  respectively;    and,  from  the  testimony 


taken,  it  appears  that  witnesses  for  each  side 
admitted  that  the  tracts  would  sell  to  bet- 
ter advantage  as  a  whole  than  if  offered  sepa- 
rately, because  of  the  extremely  Irregular 
shape  of  one  of  the  tracts,  so  we  are  not 
concerned  with  the  question  as  to  the  manner 
of  offering  the  property  for  sale.  The  wit- 
nesses produced  by  both  sides  were  mainly 
of  the  real  estate  expert  class,  and,  from  a 
close  reading  of  their  testimony,  we  are  im- 
able  to  hold  that  the  price  realized  was  a 
grossly  inadequate  one,  though  to  some  ex- 
tent it  was  inadequate.  The  prices  placed 
by  them  upon  both  tracts  as  a  whole  ranged 
from  $1,400  to  $6,000.  The  witness  Wright 
was  the  one  who  put  the  highest  valuation  on 
the  property  and  used  this  language  in  do- 
ing so: 

"I  would  think  $4,500  or  $5  000  would  be  a 
right  moderate  estimate  of  tlieae  two  lease- 
hold properties.  I  think  they  would  be  sold 
or  offered  for  sale  at  a  great  deal  less  price  than 
that." 

It  was  also  in  evidence  that  the  properties 
were  assessed  for  the  year  1917,  in  fee,  for 
$8,700,  but  that  on  the  previous  assessment, 
made  in  1913,  the  assessment  in  fee  was 
$4,558. 

[6]  Having  determined  that,  in  our  opin- 
ion, there  was  no  gross,  but  a  mere,  inade- 
quacy of  price,  we  will  now  consider  what 
effect  the  form  of  the  advertisement  played 
In  the  inadequacy.  Johnson  y.  Dorsey,  su- 
pra. The  main  advertisement  was  inserted 
in  the  Baltimore  Daily  Record  and  appeared 
for  tbe  time  limited  by  the  decree.  Shorter 
advertisements  were  Inserted  In  the  Balti- 
more Sun  and  the  Baltimore  American. 
These  two  latter  advertisements  gave  notice 
of  a  trustee's  sale  of  the  valuable  leasehold 
property.  No.  431  East  Oliver  street,  to  be 
held  on  the  premises,  on  Monday,  August.  14, 
1916,  at  4  o'clock  p.  m. ;  then  followed  a  de- 
scription of  the  improvements  on  the  proper- 
ty, and  referred  prospective  purchasers  to  the 
Dally  Record  for  the  terms  and  full  descrip- 
tion. The  advertisement  in  the  Daily  Rec- 
ord was  under  tbe  heading  of  "Trustee's 
Sale  of  Valuable  Licasebold  Property,  No.  431. 
East  Oliver  St.,"  and  recited  that  the  trustee 
would  offer  for  sale,  by  public  auction,  on  a 
certain  date,  "all  that  lot  of  ground  and 
premises  situate  in  Baltimore  City  and  de- 
scribed as  follows."  Then  followed  a  full 
description  of  the  two  tracts  by  metes  and 
bounds,  courses  and  distances,  and  showed 
that  the  tracts  were  subject  to  ground  rents 
of  $60  and  $135,  respectively.  This  was  fol- 
lowed by  a  descrlptioa  of  tbe  improvements 
and  the  terms  of  sale.  The  description  by 
courses  and  distances,  metes  and  bounds, 
were  the  same  descriptions  as  contained  in 
the  mortgage. 

That  this  was  a  reasonable  and  fair  no- 
tice of  the  sale  and  description  of  the  proper- 
ty to  be  offered  for  sale  we  have  not  a  doubt. 
It  in  most  particular  terms  was  calculated  to 
let  the  public  know  exactly  what  property 


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(Ue. 


was  brought  Into  tbe  market  It  expressly 
located  tbe  property  at  431  East  Oliver  street, 
and  tbe  most  casual  reader  could  tell  that 
the  lots  formed  one  wbole  tract,  and  togeth- 
er had  a  large  frontage  on  both  Oliver  and 
Belvedere  streets,  and  formed  a  comer  lot  in 
tbe  Junction  of  those  two  streets.  Tbe  ap- 
pellee has  dted  several  cases  to  us  where 
sales  were  set  aside  for  defects  In  the  ad- 
vertisement; but  in  all  those  cases  the  dis- 
similarity of  the  notices  there  held  bad,  to 
the  notice  in  the  present  case,  is  plainly  ap- 
parent. For  instance,  special  reliance  is 
placed  by  him  In  the  case  of  Kauffman  v, 
Walker,  snpra.  In  that  case  there  was  no 
number  by  which  the  property  could  have 
been  Identifled,  and  one  of  the  witnesses,  who 
bad  owned  the  property  for  ten  years,  said 
that  he  would  not  have  known  from  the  no- 
tice what  property  was  to  be  sold,  unless  he 
had  known  the  number  of  feet  the  property 
was  from  another  street.  So  in  all  the  cas- 
es dted  some  similar  defect  could  l>e  pointed 
out.  The  mortgagor  saw  the  advertisement 
and  attended  the  sale,  but  made  no  objection, 
before  the  sale  or  at  the  sale,  of  the  insuffi- 
ciency of  the  advertisement.  He  testiQed 
that  the  only  effort  he  made  to  protect  the 
property  was  to  borrow  on  a  mortgage  from 
a  national  bank,  but  was  told  by  Its  officers 
that  they  could  not  lend  money  on  mortgages, 
and  he  thereafter  made  no  further  effort  to 
pay  the  mortgage  or  save  the  property. 

We  are  of  the  opinion  that  tbe  lower  court 
committed  error  in  sustaining  exceptions  and 
setting  aside  the  sale,  and  will  therefore  re- 
verse the  decree  and  remand  the  cause,  in 
order  that  a  decree  ratifying  the  sale  may  be 
entered. 

Decree  reversed,  with  costs,  and  cause  re- 
manded. 


O'CONNOR  T.  RHODE  ISLAND  CO. 
(No.  6036.) 

(Supreme  Court  of  Rhode  Island.    Oct  8, 1917.) 

Exceptions  from  Superior  Ckturt  Providence 
and  Bristol  Counties;  Charles  F.  Steams, 
Judge. 

Action  by  James  F.  O'Connor  against  the 
Rhode  Island  Company.  Verdict  for  plaintiff, 
and  defendant  brings  exceptions  to  the  refus- 
al of  tbe  trial  judge  to  grant  a  new  trial.  Ex- 
ceptions overruled,  and  case  remitted,  with  di- 
rection to  enter  judgment  for  plaintiff  upon 
the  verdict 

E.  Raymond  Walsh,  of  Providence,  for  plain- 
tiff. Clifford  Whipple  and  Frederick  W.  O'CJon- 
nell,  both  of  Providence,  for  defendant 

PER  CURIAM.  The  defendant's  exceptions 
in  this  case  raise  only  tbe  question  whether  the 
trial  judge  erred  in  his  refusal  to  grant  a  new 
trial,  after  verdict  for  the  plaintiff,  on  the 
grounds  urged  by  tiie  defendant  that  the  verdict 
was  against  the  weight  of  tbe  evidence,  and  in 
any  event  that  the  amount  of  damages  awarded 
by  the  jury  was  excessive. 

The  evidence  upon  tbe  question  of  the  defend- 
ant's negligence  and  of  the  plaintiCTs  contrib- 


utory negligence  was  sharply  conflicting.  There 
was  ample  evidence  from  which  the  jury  could 
find  in  favor  of  the  plaintiff  as  they  have  done 
on  both  these  questions.  We  find  no  reason  for 
saying  that  the  damages  are  excessive.  Upon 
full  consideration  of  all  the  evidence  in  the  case, 
a  malority  of  this  court  is  of  oninion  that  the 
trial  judge  committed  no  error  in  his  refusal  to 
grant  a  new  trial. 

The  defendant's  exceptions  are  overroied,  and 
the  case  is  remitted  to  the  superior  court  sitting 
in  Providence  county,  with  direction  to  enter 
judgment  for  the  plaintiff  npon  tlie  verdict 


(itt  H&  S») 

VIBLE  et  aL  T.  CDRTia 

(Supreme  Judicial   Conrt  of  Maine.     Oct  3, 
1917.) 

1.  Appkai.  and  Ebrob  «=»1008(2>— FiiiDiiraa 

01"  C0TT«T— C0NCI.T78IVBNES8. 

In  jury-waived  cases,  so  far  as  the  conclu- 
sions reached  rest  upon  facts,  the  findings  of  the 
court  are  conclusive  unless  the  only  inference  to 
be  drawn  from  the  evidence  is  a  contrary  one. 

2.  Appbai.  and  Ebbos  «=3849(1)— ExcKPnona 
— QtJKSTioNs  OF  Law.  . 

In  a  jury-waived  case,  exceptions  ape  limit- 
ed to  rulings  upon  questions  of  law,  and  the 
only  question  of  law  is  whether  there  was  any 
evidence  to  snpport  the  finding. 

3.  Appeai.  and  Error  «=a994(3).  1008(2)  — 
Credibiutt  of  Witness — Questions  fob 
Court. 

In  jury-waived  cases,  the  credibility  of  wit- 
nesses and  the  weight  of  the  evidence  is  wholly 
for  the  justice  presiding. 

4.  Trusts  «=>86,  107— Bhrdeh  ar  Proof. 

The  burden  of  establishing  resulting  and 
constructive  trusts  is  upon  the  party  asserting 
their  existence,  and  this  burden  is  sustained 
only  by  full,  clear,  and  convincing  prool 
6.  Trusts  «=»44(1)— Express  Tbubt— Suwi- 
CIENCT  OF  Evidence. 

In  a  partition  suit,  where  petitioners  claim- 
ed title  from  defendant's  deceased  wife,  and  he 
claimed  that  the  wife  held  the  premises  in  trust 
for  him,  a  letter  written  by  deceased  to  her 
daughter,  when  taken  in  connection  with  ail  tbe 
evidence,  held  not  a  written  declaration  of  an 
express  trust. 

6.  Trusts  <S=21(2)  —  Letter  Estabushino 
ExpKEss  Trust. 

A  letter  subscribed  by  the  trustee,  whether 
addressed  to  or  deposited  with  the  cestui  que 
trust  or  whether  intended  to  be  evidence  of  the 
trust,  or  whether  made  at  the  time  the  legal  ti- 
tle was  conveyed,  or  later,  will  be  sufficient  to 
establish  the  trust  when  the  subject,  object,  and 
nature  of  the  trust,  and  the  parties  and  their 
relations  to  it  and  each  other  appear  with  rea- 
sonable certainty. 

7.  Trusts  «=3373— Questions  of  Fact. 
In  a  jury-waived  case,  whether  a  letter  when 

supplemented  by  oral  testimony  established  an 
express  trust  was  a  question  of  fact  for  the  jus- 
tice presiding. 

Exceptions  from  Supreme  Judicial  Court 
Penobscot  County,  at  Law. 

PeUtion  tor  partition  by  Gbaries  O.  Vide 
and  another  against  C.  W.  Curtis.  From 
findings  and  rulingg  in  favor  of  petitioners, 
defendant  brings  exceptions.  ESxc^ticoa 
overruled. 

Argued  before  BIRD,  HALBfT,  HANSON, 
and  PHILBROOK,  JJ. 


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VIBLB  y.  CURTIS 


967 


Morse  &  Cook,  of  Bangor,  and  F.  D.  Deartb, 
of  Dexter,  for  plaintiffs.  Carl  O.  Jones,  of 
Waterrllle,  for  defendant 

BIRD,  J.  This  Is  a  petition  for  partition 
In  whlcb  the  petitioners  allege  themselves  to 
be  the  owners  In  fee  of  one-third  each  of  the 
land  sought  to  be  divided  and  the  respondent 
to  be  the  owner  of  the  remaining  third. 

The  respondent,  in  answer  to  the  petition, 
denied  that  the  petitioners  were  each  seised 
In  fee  of  one-third  of  the  premises  and  claim- 
ed under  a  double  brief  statement,  by  way  of 
equitable  defense,  "an  undefeaslble  title  to 
the  whole  premises,"  alleging  that  his  wife, 
from  whom  the  petitioners  claimed  to  have 
title  by  descoit,  held  the  premises  in  trust 
for  him  should  she  predecease  him  and  in 
trust  for  his  children  by  a  former  marriage 
should  he  predecease  her.  The  first  brief 
statement  sets  up  a  constructive  trust,  the 
second  an  express  trust. 

The  cause  was  heard  by  the  Justice  presid- 
ing without  a  Jury  and,  after  hearing  the  evi- 
dence, he  found  and  ruled : 

(1)  That  each  of  the  petitioners  is  the  own- 
er in  fee  of  one-third  in  common  and  undi- 
vided of  the  premises  described  in  the  peti- 
tion and,  as  claimed  tberdn,  that  the  re- 
spondent, Charles  W.  Curtis,  is  the  owner  of 
the  other  one-third  undivided  of  said  prem- 
ises; and 

(2)  That  the  petitioners  are  entitled  to 
judgment  for  partition  of  the  premises  de- 
scribed in  their  iietitlon  and  as  therein  pray- 
ed for. 

To  these  findings  and  rulings  the  defend- 
ant excepted.  The  petition,  pleadings,  and 
evidence  are  part  of  the  bill  of  exceptions. 

[1]  In  Jury-waived  cases,  so  far  as  the  con- 
clusion reached  rests  upon  facts,  the  finding 
of  the  court  is  conclusive,  unless  the  only  In- 
ference to  be  drawn  from  the  evidence  is  a 
contrary  one.  Maine  Water  Co.  v.  Steam 
Towage  Co.,  99  Me.  473,  475,  69  Atl.  953.  It 
has  been  held  that  the  exception  here  noted 
presents  a  question  of  law.  Morey  ▼.  MlUl- 
ken,  86  Me.  464,  481,  30  AtL  102.  If  so,  we 
must  hold,  as  such,  in  the  present  case  that 
the  only  Inference  to  be  drawn  from  the  evi- 
dence is  not  contrary  to  that  found  by  the 
court 

[2-4]  Exceptions  in  such  cases,  it  is  said 
in  Prescott  v.  Winthrop,  101  Me.  236,  239,  63 
Atl.  923,  are  limited  to  rulings  upon  questions 
of  law,  and  the  only  question  of  law  is  wheth- 
er there  was  any  evidence  to  support  the  find- 
ing. If  there  was,  the  decision  of  the  court 
must  stand  even,  if  there  was  a  large  pre- 
ponderance of  the  evidence  the  other  way. 
We  tliink  there  was  evidence  to  support  the 
finding.  The  credibility  of  the  witnesses  and 
the  weight  of  the  evidence  was  wholly  for  the 


Justice  presiding.  The  burden  of  proof  of 
establishing  resulting  and  constructive  trusts 
is  upon  the  party  asserting  their  existence, 
and  this  burden  is  sustained  only  by  full, 
clear,  and  convincing  proof.  Prevost  v.  Gratz, 
6  Wheat.  481,  494,  5  L.  Ed.  311;  Culver  v. 
Guyer,  129  Ala.  602,  29  South.  779;  Whitmore 
V.  Learned,  70  Me.  276,  285 ;  FaU  v.  Fall,  107 
Me.  539,  81  AO.  865 ;  Coombs  et  al..  Appel- 
lants, 112  Me.  445,  446,  92  AtL  615.  We  hes- 
itate to  conclude  that  the  court  erred  in  find- 
ing no  satisfactory  proof  of  a  constructive 
trust  or  trust  ex  maleflcio. 

[6]  The  express  trust  alleged  is  claimed  to 
be  proved  by  a  letter  written  by  the  wife  of 
defendant  to  her  daughter.  It  is  urged  that 
the  letter  "taken  in  connection  with  all  the 
evidence  is  a  written  declaration  of  an  ex- 
pressed trust"    The  letter  Is  as  follows: 

"Miy  Dear  Ada:  Ton  know  that  some  yean 
ago  Mr.  Curtis  gave  me  a  deed  of  our  Dexter  to 
me  in  accordance  with  a  promise  made  before  we 
were  married,  should  he  outlive  me,  he  will  nat- 
urally desire  to  have  you  and  Charlie  sign  off 
your  claims  to  the  property  as  my  heirs.  This 
I  should  wish  you  do  on  proper  considerations. 
Mr.  Curtis  owes  me  two  thousand  dollars  of 
which  he  has  had  the  use  nearly  ever  since  we 
were  married.  This  I  wish  him  to  pay  to  you 
and  Charlie  each  one  thousand,  keep  this  paper 
in  case  you  should  ever  need  it  as  a  proof  of 
the  desire  of  your  affectionate  mother, 

"Annie  Viele  Curtis. 
"Dexter,  Maine,  Jan.  22,  1000." 

[I]  It  is  undoubtedly  law  that  a  letter  sub- 
scribed by  the  trustee,  whether  addressed  to, 
or  deposited  with,  the  cestui  que  trust  or  not, 
or  whether  intended  when  made  to  be  evi- 
dence of  the  trust  or  not,  or  whether  made  at 
the  time  the  legal  title  was  conveyed  or  later, 
will  be  sufficient  to  establish  the  trust  when 
the  subject,  object,  and  nature  of  the  trust, 
and  the  parties  and  their  relations  to  it  and 
each  other,  appear  with  reasonable  certainty. 
Bates  V.  Hurd,  65  Me.  180,  181 ;  McClellan  v. 
McCleUan,  65  Me.  500,  506.  But  the  letter 
relied  upon  by  plaintiff  measures  up  to  re- 
quirements no  better  than  that  considered  in 
Lane  v.  Lane,  80  Me.  670,  677,  16  AU.  323, 
which  was  held,  as  between  husband  and 
wife,  to  be  insufflcient 

[7]  Assume,  however,  what  we  by  no 
means  hold,  that  the  letter  was  admissible  as 
indirect  evidence  of  a  trust,  and  that  tlie 
statements  of  the  letter  may  be  supplement- 
ed by  oral  testimony,  the  question  Is  one  for 
a  Jury,  and  in  this  case  for  the  presiding  Jus- 
tice, and,  as  already  seen,  to  his  findings  of 
fact,  no  question  of  law  arising,  no  excep- 
tions lie.  State  ▼.  Patterson,  68  Me.  473, 
475,  476;  PettengUl  r.  Shoenbar,  84  Me.  104, 
106,  24  Aa  684;  FuUer  v.  Smith,  107  Me. 
161,  168,  77  Atl.  706. 

The  exceptions  must  be  overruled. 

So  ordered. 


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101  ATIiANTIC  EEPORTEB 


(Me. 


016  Hew  ta) 

CABVILLB  ▼.  I*ANB. 

(SnpreoM  Judicial  Court  of   Maine.     Oct  8> 

1917.) 

1.  Fbaud  «s>24— Civil  Reiocdies. 

Where  plaintiff  accepted  defendant's  note  on 
I>ecember  5th  for  goods  theretofore  furnished, 
he  could  not  recover  on  the  ground  that  defend- 
ant falsely  represented  facts  on  December  14th. 

2.  Bankbuptct  «=»426(1)—Dibchabqb— "Ob- 
taining Pbopebtt"  by  Fbaud. 

Defendant's  act  in  getting  plaintiff  to  ac- 
cept a  note,  for  ^ooda  theretofore  furnished,  by 
false  representations,  is  not  an  obtaining  of 
property  within  the  meaning  of  Bankruptcy  Act 
July  1,  1608,  c.  &41,  8  17,  30  Stat.  550  (0.  S. 
Comp.  St.  1916,  t  9601),  nor  Rev.  St.  c.  128,  | 
1,  defining  the  crime  of  obtaining  property  by 
false  pretenses,  so  that  the  dischar|;e  of  defend- 
ant in  bankruptcy  discharges  the  liability. 

Report  from  Supreme  Judicial  Court,  An- 
droscoggin County,  at  Law. 

Action  by  Herbert  J.  Carvllle  against  P. 
E.  lione.  Case  reported.  Judgment  for  de- 
fendant. 

Argued  before  CORXISH,  O.  J.,  and  KING, 
BIRD,  HANSON,  and  MADIGAN,  JJ. 

McGllllcuddy  &  Morey,  of  Lewlston,  for 
plalntier.  Ralph  W.  Crockett,  of  Lewlston, 
for  defendant. 

BIRD,  J.  This  action  on  the  case  is 
brought  by  plaintiff  to  recover  damages  for 
the  deceit  or  misrepresentations  of  the  de- 
fendant, whereby  It  is  claimed  that  defend- 
ant fraudulently  obtained  property  of  plain- 
tiff.   The  case  Is  before  us  upon  report. 

It  appears  from  the  evidence  that  the 
latter  had  for  many  years  supplied  the  de- 
fendant with  fertilizers,  for  which,  several 
months  after  delivery  to  him,  in  each  year, 
defendant  gave  bis  note  to  the  plaintiff.  In 
the  spring  of  1913  the  defendant  purchased 
fertilizer  of  plaintiff  to  the  amount  of  be- 
tween $70  and  $80,  and  on  the  21st  day  of 
December,  1913,  gave  to  the  plaintiff  his  note 
to  order  of  the  First  National  Bank  of  Lew- 
lston for  $80  on  six  months,  with  interest 
after  due  till  paid.  This  note  was  indorsed 
by  plaintiff,  who  discounted  it  at  the  payee 
bank,  receiving  the  proceeds.  On  the  21  st 
day  of  June,  1914,  It  was  renewed,  indorsed, 
and  discounted  as  before.  Again,  on  Decem- 
ber 21,  1014,  it  was  renewed,  Indorsed,  and 
discounted  as  before.  In  the,  spring  of  1914 
plaintiff  sold  defendant  fertilizer  to  the 
amount  of  nearly  $190.  The  balance  of  the 
purchase  price  of  this  sale  In  the  fall  of  1914 
amounted,  with  Interest,  less  credits,  to  $185.- 
65,  for  which  sum  defendant  gave  his  note 
dated  December  5,  1914,  In  other  respects  of 
like  tenor  as  the  notes  already  described. 
This  note  was  discounted  by  plaintiff  at  the 
same  bank  on  the  7th  day  of  December,  1914, 
and  he  received  the  avails.  On  the  2Sth  day 
of  May,  1915,  before  either  of  the  notes  given 
In  December,  1914,  became  due,  the  defend- 
ant filed  his  petition  In  bankruptcy,  and  was 
granted  a  discharge  on  the  3d  day  of  Sep- 


tember, 1915,  which  Is  pleaded  by  way  of 
brief  statement  in  bar  of  the  action. 

The  plaintiff  alleges  that  on  the  14th  day 
of  December,  1914,  the  defendant  made  to 
him  certain  representations  as  to  the  prop- 
erty owned  by  him,  which  were  false  and  un- 
true, relying  upon  which  he  took  and  accept- 
ed the  notes  of  December  5  and  December  21, 
1914,  and  that  both  notes  are  liabilities  with- 
in the  debts  excepted  from  the  operation  of 
the  discharge  in  bankruptcy,  Invoking  the 
exception  of  the  Bankruptcy  Act,  relating 
to  discharges,  of  debts  such  as  "(?)  are  lia- 
bilities fur  obtaining  property  by  false  pre- 
tenses or  false  representations.  •  •  • " 
Act  Cong.  July  1,  1S98.  c.  541,  |  17.  30  Stat. 
550,  as  amended  by  Act  Cong.  Feb.  5,  1903, 
c.  487,  i  5,  32  Stat  708  (U.  S.  Comp.  St  1916. 
19601). 

[1]  We  are  unable  to  perceive  how  the  ac- 
ceptance by  plaintiff  of  the  note  of  December 
5, 1914,  which  was  discounted  two  days  later, 
could  have  been  induced  by  or  made  in  reli- 
ance upon  the  statement  as  to  assets  made 
December  14,  1914.  As  to  this  note  or  in- 
debtedness, the  plaintiff  cannot  recover.  State 
V.  Church,  43  Conn.  471,  473.  See  In  re  Mo- 
Lellan  (D.  C.)  204  Fed.  482;  In  re  Main  (D. 
C.)  205  Fed.  421,  424. 

The  note  of  December  21,  1914,  for  $80, 
was  received  by  plaintiff  and  by  him  dia- 
counted  after  the  statement  of  December  14, 
1914.  was  communicated  to  him.  As  observ- 
ed, this  note  was  given  and  discounted  bi 
renewal  of  a  former  note  of  a  like  amount 
The  property  for  which  the  original  note  was 
given  was  obtained  in  the  spring  of  1913. 
The  new  note  and  discount  afforded  him  an 
extension  of  credit 

Did  the  making  of  the  new  note  of  Decem- 
ber 21,  1914,  by  the  defendant,  and  its  ac- 
ceptance by  the  plaintiff,  constitute  a  liability 
for  obtaining  property  by  false  pretenses  or 
false  representations?  The  word  "property" 
Is  not  defined  by  the  Bankruptcy  Act  of  1898. 
In  Gleoson  v.  Thaw,  185  Fed.  345,  347. 107  a 
C.  A.  463,  34  L.  R.  A.  (N.  S.)  894,  a  petition 
for  review  of  an  order  staying  an  action  by 
which  the  plaintiff  sought  to  recover  for  pro- 
fessional services  alleged  to  have  been  ren- 
dered in  reliance  vpoa  false  representations 
made  by  defendant,  the  court  In  Its  opinion 
says: 

"While  enlarging  somewhat  the  scope  of  snch 
exceptions,  this  amendment  [substituting  for 
'judgments  in  actions  for  fraud  or'  the  words 
'liabilities  for*]  imposed  upon  the  court  of 
bankruptcy  the  duty  of  determining  whether 
the  debt  sought  to  be  excepted  was  or  wt«  not 
such  a  liability.    •    •    • 

"That  the  word  'property'  is  nomen  generalia- 
simum,  as  asserted  by  the  petitioner,  is  not  to  be 
denied;  but  no  more  is  it  to  be  denied  that  its 
meaning  may  be  restricted,  not  only  by  the  ap- 
plication of  the  maxim,  'nosdtur  a  sociis,'  but 
by  the  purpose  for  which  it  is  used,  or  by  Its 
evident  use  as  a  word  of  art,  or  by  its  nse  in  a 
technical  sense.  The  very  generality  of  tiie 
word  requires  restriction,  according  to  the  or-  , 
cumstances  in  which  it  i»  used.    In  some  jndc- 


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HIOKS  y.  ALTOONA  A  L.  V.  ELECTRIC  RT.  CO. 


ments,  aa  well  as  in  some  obiter  dicta,  the  word 
•property'  has  been  made  to  cover,  by  a  sort  of 
rhetorical  flourish,  eyerythingr  tangible  or  in- 
tangible of  which  value  ma;  be  predicat- 
ed.   •    •    • 

"The  language  used  in  the  seventeenth  section 
of  the  Banlcruptcj  Act,  to  which  we  have  al- 
ready referred,  by  wliich  liabilities  for  obtaining 
property  by  false  pretenses  are  exempted  from 
the  provable  debts  discharged  in  bankruptcy,  are 
the  usual  and  most  eenerEU  words  for  describing 
a  specific  crime,  niieir  use  in  this  connection 
dates  back  as  far  as  the  statute  of  80  George 
II,  c.  34  (1757),  and  they  have  since  then,  so 
far  as  they  define  the  crime,  remained  unchang- 
ed. 19  Oyc  387.  The  same  language,  in  sub- 
stance, has  been  used  in  the  statutes  in  this 
country,  and,  where  departed  from,  it  is  only 
by  way  of  enumeration  of  certain  kinds  of  prop- 
erty that  may  be  included  under  the  general 
designation.  Tliese  enumerations  all  refer  to 
substantive  things — to  a  res— and  in  no  case  to 
which  oar  attenSon  has  been  called  is  anything 
inclnded  in  the  enumeration  which  approaches, 
in  its  description  or  definition,  services  rendered. 
Certainly  under  no  proper  and  strict  adminis- 
tration of  the  criminal  law  could  any  one  be 
indicted  under  the  general  language  of  obtain- 
ing property  under  false  preteneee,  on  the 
ground  that  services,  whose  performance  has 
been  induced  by  a  false  pretense,  are  property, 
within  the  meaning  of  the  act." 

See,  also,  Gleason  r.  Thaw,  196  Ted.  359, 
116  0.  C.  A.  179. 

[2]  It  Is  the  conclU8i(«,  of  the  conrt  that 
the  acceptance  and  discount  of  the  note  of 
December  21,  1914,  even  if  Induced  by  false 
representations,  was  not  an  obtaining  of 
property  within  the  meaning  of  Bankruptcy 
Act,  i  17,  nor  of  our  own  statute  defining 
the  crime  of  obtaining  money,  goods,  or  oth- 
er property  by  false  pretenses.  R.  S.  c.  128, 
i  1.  The  def^idant  obtained,  by  the  renewa] 
of  the  note  neither  money,  goods,  nor  prc^ 
erty.  The  plaintiff  obtained  the  note  and 
used  It  to  replace  the  former  note,  while  the 
defendant  obtained  an  extension  of  the  time 
of  payment  of  his  original  Indebtednees. 

Where  the  plalntiffB  were  Induced  by  the 
false  statonenta  of  defendant  to  bring  no 
suit  upon  their  claim  by  reason  of  the  latter 
representing  it  to  be  paid,  it  was  held  no 
exception  to  the  discharge  in  bankruptcy  of 
defendant,  the  conrt  remarldng  that: 

"This  deceit  was  after  the  contract  had  bean 
created,  and  formed,  of  course,  no  inducement 
or  element  of  it."  Brown  v.  Broach,  62  Miss. 
636,  63& 

Obtaining  the  satisfoction  of  one's  debt 
dne  to  another,  by  false  pretenses,  no  money 
passing,  has  been  held  not  indictable.  Jami- 
son V.  State,  87  Ark.  446,  40  Am.  Rep.  103. 
See,  also,  Qneoi  ▼.  Croeby,  1  Cox,  O.  O.  10; 
Wavell's  Case,  1  Sfoody,  G.  C.  224.  In  State 
T.  Moore,  16  Iowa,  412,  413,  under  a  statute 
practically  Identical  with  our  own  (R.  S.  p. 
128,  i  1),  it  is  held  that  to  obtain  an  Indorse- 
ment or  credit  upon  a  promissory  note  la 
not  obtaining  property,  money  or  goods 
within  the  meaning  of  the  statute;  Under 
the  Bankruptcy  Act  of  1867  (Act  Cong. 
March  2,  1867,  c.  176,  14  Stat  617),  It  Is  said 
that: 


"The  fraud  must  have  been  committed  in  «»- 
tracting  the  deBt.  It  is  no  answer  to  the  dis- 
charge that  the  defendant  by  fraud  induced  the 
plaintiff  to  forbear  an  action  ujion  it."  Low. 
Bankruptcy,  |  433. 

And  see,  under  the  act  of  1888^  Id.  I  480. 
See,  also,  B.  S.  C  128,  t  3. 
Judgment  for  defendant. 


(S8  Pa.  US) 

HICKS  et  uz.  T.  ALTOONA  ft  L.  V. 

ELECTRIC  RT.  CO. 

(Supreme  Court  of  Pennsylvania.     May  7, 

1917.) 

1.  Stbekt  RAii.BOA.ns  «=»117(6,   24)— Injubt 
ON  Track  —  Qusbtionb  »ob  Jttbt  —  Neou- 

OEHCE  AND   CONTRIBTTTOBT  NEOUOKHCIK. 

In  an  action  against  a  street  railway  to  re- 
cover for  the  death  of  plaintiffs'  son,  resulting 
from  a  collision  between  his  team  and  a  car 
at  a  street  intersection,  held,  on  the  evidence, 
that  defendant's  negligence  and  decedent's  con- 
tributory negligence  were  questions  for  the  jury. 

2.  Stbeet    Railroads   ^=>99(12)  —  CROssina 
Track — Due  Case. 

It  is  the  duty  of  a  driver  to  hxA  in  both 
directions  immediately  before  entering  upon  the 
tracks  of  a  street  railway,  and  to  exercise  due 
care  to  get  his  horses  under  control. 

Appeal  from  Court  of  Oommon  Pleas,  Blair 
County. 

Trespass  by  J.  H.  Hicks  and  Sarah  Hicks 
against  the  Altoona  ft  Logan  Valley  Electric 
Railway  Company  to  recover  for  the  death 
of  plaintiffs*  son.  From  a  Judgment  refusing 
to  take  off  a  compulsory  nonsuit,  plaintiffs 
appeaL  Reversed,  with  a  venire  facias  de 
novo. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and 
MOSCHZISKER,  JJ. 

A.  y.  Dlvely,  of  Altoona,  for  aisidlants. 
Thomas  H.  Greevy,  of  Alto<Hia,  for  appellee. 

M090HZISKER,  J.  The  plaintifb'  son, 
Arthur  A.  Hicks,  waa  killed  in  a  right-angle 
collision  between  a  team  whidi  be  was  driv- 
ing and  a  trolley  car  of  the  defendant  com- 
pany, about  noon,  on  August  2,  1912,  at  tha 
junction  of  two  streets  in  the  dty  of  Altoona. 
The  court  below  entered  a  coms^ulsory  non- 
suit, which  it  subsequently  refused  to  f»- 
move;  plaintiffs  have  appealed. 

[1  ]  It  appears  from  the  testimony  that,  at 
the  time  of  the  collision,  the  deceased  waa 
just  over  the  age  of  18  years,  and  an  experi- 
enced horseman;  that  the  defendant's  trol- 
ley car  waa  running  at  a  Q)eed  of  from  80  to 
36  miles  an  hour;  that  it  approached  the 
crossing  in  question  without  any  effort  on 
the  part  of  the  motorman  to  stop  or  properly 
to  control  its  speed,  and  without  blowing  Its 
whistle  or  giving  any  other  warning;  that 
in  the  vicinity  of  the  accident  the  curb  lines 
of  both  streets  were  occupied  by  trees,  and 
tbe  view  of  the  driver,  from  his  seat  on  the 
wagon,  was  interfered  with  by  their  foliage 
to  such  an  ext«it  that,  in  all  probability,  he 
could  not  see  the  approaching  car  until  he 


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101  ATLANTIC  REPORTER 


(Pa. 


bad  passed  the  curb  line  of  the  blgbwaiy  up<« 
which  It  was  being  operated. 

Sereral  witnesses  testified  that  plaintiffs' 
sou  was  first  observed  by  those  on  the  car 
when  it  was  about  200  feet  distant  from  the 
point  of  the  collision,  and  at  that  time  his 
horses'  heads  were  within  about  12  feet  of 
the  track,  advancing  on  a  downgrade  at  "a 
little  Jog"  or  "fast  walk" ;  furthermore,  that 
Hicks  was  then  "pulling  up"  or  "reining  In" 
his  team.  Another  witness  said  that  Imme- 
diately after  the  front  of  the  wagon  emerged 
from  the  house  line,  or  when  the  horses  were 
about  20  feet  from  the  track,  the  driver  ap- 
peared to  be  endeavoring  to  stop  his  team; 
bat  his  efforts  were  In  vain,  for  the  horses 
were  struck  and  dragged  for  a  distance  of 
about  130  feet  before  the  car  came  to  a 
standstill.  Hicks,  in  the  meantime,  having 
been  thrown  from  his  seat  and  run  over  by 
the  car.  Those  observers  who  were  called  to 
the  stand  all  seem  to  agree  the  car  was  ap- 
proaching with  such  rapidity  that  it  was  im- 
possible for  the  driver  of  the  wagon  to  avoid 
the  aoddent;  but  whether  or  not  the  latter 
did  all  for  his  own  protection  which  a  rea- 
sonably careful  man  should  have  done  were 
proper  Issues  for  the  Jury— not  the  witnesses, 
or  the  trial  Judge — ^to  decida 

[2]  This  court  has  more  than  once  said 
that  It  is  the  duty  of  a  driver  to  look  In  both 
directions  Immediately  before  entering  upon 
the  tracks  of  a  street  railway;'  but,  on  the 
evidence  in  this  case,  the  Jury  might  have 
found  that  plaintiffs'  son  made  a  proper  ob- 
servation, saw  the  rapidly  advancing  car, 
and  did  all  within  his  power  to  prevent  the 
accident  We  have  also  said  that,  when  ap- 
proaching a  trolley  track,  a  driver  must  take 
due  care  to  get  his  horses  under  control ;  but 
it  is  a  matter  of  general  knowledge  that  a 
team  cannot  always  be  effectually  managed, 
even  by  the  best  of  horsemen.  Therefore 
whether  or  not  Hicks  made  a  reasonable  ef- 
fort to  esterdse  the  care  required  by  the  pe- 
culiar circumstances  at  bar  is  an  Issue  of 
fact,  not  of  law.  In  other  words,  both  the 
question  of  the  defendant's  negligence  and 
that  of  the  driver's  alleged  contributory  neg- 
ligence must  be  determined  by  a  Jury. 

The  assignments  of  error  are  sustained, 
and  the  Judgmoit  is  reversed,  with  a  venire 
facias  de  novo. 

(1E8  Pa.  US) 

FHIIADBU'HIA  TRUST  CO.  v.  NORTH- 

UMBERIiAND  COUNTY  TRACTION 

CO.  et  aL 

PENNSYLVANIA  STEEL  CO.  y.  8UNBURT 

&  SUSQUEHANNA  RT.  CO. 

(Supreme  Court  of  PennarlTania.     May  14, 

1917.     Modification  of  Uecree  May  22, 

1917.) 

1.  CoNSTiTUTiONAi,  Law  «=>149— Imfaibvert 
OP  Obliqation  of  Contbact— Remedies  bt 
MoRTGAOB  FoRECiosuBB— "Contbact." 
A  first  mortgage  given  by  a  traction  com- 
pany on  all  its  property  and  fronchiges,   then 


owned  or  thereafter  acquired,  to  secure  an  is- 
sue of  its  bondB,  covenanting  for  itself  and  its 
Buccessois  not  to  suffer  any  lien  prior  thereto, 
waiving  all  laws  requiring  foreclosure  by  an 
action  or  postponing  the  immediate  sale  of  the 
mortgaged  property,  providing  that  on  default 
in  the  interest  or  principal  as  to  any  covenant 
the  trustee,  on  written  request  of  not  less  than 
one-half  the  bondholders,  should  declare  the 
principal  payable  and  enforce  the  lien  by  fore- 
closure, and  permitting  the  purchaser  to  use  ma- 
tured and  unpaid  bonds  toward  the  payment  of 
purchase  price,  was  a  "contract,"  the  obligation 
of  which,  including  the  remedies,  could  not  be 
impaired  by  subsequent  legislation,  or  by  a  de- 
cree of  a  court  refusing  a  foreclosure  sale  and 
decreeing  a  sale  of  the  merged  roads  as  a  unit, 
on  the  ground  that  it  would  work  an  irreparable 
injury  to  the  bondholders  of  a  corporation  with 
which  the  traction  company  had  merged  and  to 
the  bondholders  of  other  merged  companies. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Con- 
tract] 

2.  CoNBTITUnONAI.  LAW  ©=116— iMFAlBjraHT 

OF  Oblioation  of  Contract — Leoibiativk 

AND  Judicial  Depabtments. 
The  federal  and  state  Constitutions  forbid- 
ding the  impairment  of  the  obligations  of  con- 
tracts apply  to  the  legislative  department  and 
also  to  the  judicial  department,  and  neither  tte 
Legislature  nor  a  court  can  alter  or  impair  the 
obligation  of  a  contract 

3.  Receivers  <S=>155— Mebgeb  of  Mobtoaoob 
OoMPANT— Effect. 

Where  street  railway  companies  which  had 
given  trust  mortgages  on  their  properties  to  se- 
cure their  bonds  were  merged  into  one  com- 
pany and  the  merged  company  was  placed  in 
receivership,  the  indebtedness  incurred  by  the  re- 
ceivers had  no  priority  over  the  bonds  secured 
by  the  mortgages  of  the  merged  companies,  if  it 
could  be  paid  out  of  funds  arising  from  ths 
receivers'  operation  of  the  road. 

4.  Rbceivxbs  ^=>69— Titlx  aso  IiraxBEsr— 
Outstanding  Liens. 

A  receiver  of  an  insolvent  corporation  takes 
only  its  interest  in  the  property,  subject  to  sU 
valid  liens  against  it  and  can  set  up  no  nghu 
against  claims  wliich  the  corporation  could  not 
have  set  up. 

6.  Receivbbs  *=»77— TiTue  ahd  Iktkbkst  — 
Pbs-exibtino  Libns. 

The  appointment  of  a  receiver  for  property 
doSs  not  sAtct  pre-existing  liens  upon  it  or  ths 
vested  rights  of  third  persons  therein. 
6.  Street  Railboads  «=»56 — Mobtoaob  Fobb- 

CLOSUBE— COSBBMT  OF  POBUO  SBBVICB  COM- 
MISSION. 

The  Public  Service  Company  law  (Act  July 
26, 1913  [P.  L.  1374])  does  not  require  the  con- 
sent of  the  public  service  commission  before 
a  mortgage  trustee  can  foreclose  a  street  rail- 
way company's  mortgage  and  sell  the  mortgaged 
property. 

Appeal  from  Court  of  Common  Pleas. 
Northumberland  County. 

Bills  in  equity  to  foreclose  corporate  mort- 
gages by  the  Philadelphia  Trust,  Safe  De- 
posit &  Insnrance  Company  (now  PbUadel- 
phia  Trust  Company),  trustee,  against  the 
Northumberland  County  Traction  OcHopany 
and  Sunbury  &  Susquebanna  Railway  Com- 
pany; and  by  H.  B.  Davis  and  others,  re- 
ceivers of  the  Sunbury  &  Susquehanna  Rail- 
way Company  and  the  Pennsylvania  Steel 
Cwnpany  again,^t  the  Sunbury  &  Susque- 
hanna Railway  Company.    From  the  decrees 


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Pa.)        PHILADELPHIA  TKDST  CO.  T.  NORTHUMBERLAND  COUNTY  T.  CO.        971 


entered,  the  PUladelphla  Trust  Oompany, 
trustee,  takes  two  appeals,  and  the  Scranton 
Trust  Company,  trustee,  appeals.  Decrees 
modified,  and  a  procedendo  awarded. 

E^m  the  record  it  appeared  that  the 
Northumberland  County  Traction  Company, 
herein  called  "traction  company,"  was  rormed 
In  1911  by  the  merger  of  two  other  companies, 
and  owned  and  operated  an  electric  railway 
from  the  borough  of  Sunbury  to  the  borough 
of  Northumberland,  having  a  total  length  of 
about  6  milea  On  November  1,  1911,  it  exe- 
cuted and  delivered  a  first  mortgage  or  deed 
of  trust  on  all  its  property  and  franchises, 
then  owned  or  thereafter  to  be  acquired,  to 
the  Philadelphia  Trust  Company,  as  trustee, 
to  secure  an  issue  of  its  bonds,  of  which 
$400,000  are  outstanding.  The  covenants 
bound  the  successors  of  the  traction  company, 
which  agreed  that  it  would  suffer  no  lien  to 
have  priority  over  this  first  mortgage,  and 
waived  all  laws  requiring  foreclosure  by  an 
action  or  postponing  the  immediate  sale  of 
the  mortgaged  property  under  the  provisions 
of  the  mortgage.  It  was  provided  that  in 
case  default  should  be  made  in  payment  of  in- 
terest or  principal  of  the  bonds  or  in  the  per- 
formance of  any  other  covenant  by  the  trac- 
tion comipany,  the  trustee,  upon  the  written 
request  of  the  holders  of  not  less  than  one- 
half  in  amount  of  tlie  outstanding  bonds, 
should  declare  the  principal  of  all  the  bonds 
to  be  due  and  payable  and  enforce  the  rights 
and  liens  of  the  bondholders  by  foreclosure 
or  sale  of  the  mortgaged  property,  with  the 
right  of  the  purchaser  at  any  sale  of  the 
prtqperty  in  execution  of  the  provisions  of  the 
mortgage  to  apply  the  matured  bonds  and 
coupons  upon  the  purchase  price. 

The  Sunbuiy  &  Selinsgrove  Electric  Street 
Railway  Company,  herein  called  "Selinsgrove 
company,"  was  incorporated  in  1901,  and 
owned  and  operated  an  electric  railway  from 
the  borough  of  Selinsgrove,  In  Snyder  county, 
to  the  Iborough  of  Sunbury,  in  Northumber- 
land county,  of  about  7  miles  in  length.  On 
August  1,  1907,  it  executed  and  delivered  a 
mortgage  or  deed  of  trust  on  all  its  property 
and  franchises  to  the  Scranton  Trust  Com- 
paniy,  as  trustee,  to  secure  an  Issue  of  bonds 
to  the  amount  of  $300,000,  which  are  now 
outstanding.  This  mortgage  is  a  first  lien  on 
all  of  the  property  and  franchises  of  the 
mortgagor,  authorizes  the  trustee,  on  re- 
quest of  the  holders  of  the  majority  of  the 
bonds  then  outstanding,  upon  which  default 
In  payment  of  interest  or  principal  has  been 
made,  to  take  possession  and  operate  the 
road  until  the  debt  is  paid,  to  have  the  i^ofits 
sequestered  by  a  receiver  appointed  by  a 
court  of  equity,  to  make  public  sale  of  the 
property,  or  to  bring  on  a  Judicial  sale,  and 
stipulates  that  the  rights  and  remedies  of  the 
holders  of  the  bonds  provided  in  the  mort- 
gage shall  be  exclusive  of  all  others. 

The  Sunbury,  Lewisburg  &  Milton  Railway 
Company,  herein  called  the  "LewUfenrg  com- 


pany," owned  and  operated  an  electric  rail- 
way In  Northumberland  borough  and  Point 
township,  Northumberland  county,  having  a 
total  length  of  about  2  miles.  On  August  21, 
1911,  this  company  executed  and  delivered  a 
mortgage  or  deed  of  trust  on  all  its  property 
and  franchises  to  secure  a  bond  issue  of  $1,- 
000,000,  of  which  $150,000  have  been  issued 
and  are  now  outstanding. 

The  Chlllisquaque  Connecting  Railway 
Company  and  the  Montandon  &  Milton  Rail- 
road Company  were  Incorporated  as  street 
railway  companies  under  the  laws  of  the 
commonwealth,  but  have  not  constructed  or 
operated  roads  under  their  charters. 

The  Sunbury  ft  Susquehanna  Railway 
Company,  herein  called  the  "merged  com- 
pany," is  a  corporation  existing  under  the 
laws  of  the  commonwealth,  and  was  formed 
in  pursuance  of  the  Act  of  May  8,  1900,  P.  L. 
408,  5  Pnrd.  5337,  by  the  consoUdatlon  and 
merger  of  all  the  above-named  or  constituted 
companies,  and  since  the  consolidation  has 
owned  and  operated  as  a  continuous  and  con- 
nected line  the  several  lines  of  railway  form- 
erly owned  and  <^)erated  by  those  companies, 
having  a  total  length  of  about  16  miles.  The 
merger  agreement  vested  all  the  property  and 
franchises  of  the  five  corporations  in  the  new 
corporation,  subject  to  all  the  debts,  duties, 
and  liabilities  of  each  of  the  constituent  com- 
panies, and  provided  that  all  property  and 
franchises  afterwards  acquired  along  each 
line  should  become  a  part  of  it  and  be  pri- 
marily subject  to  the  mortgage  of  the  constitu- 
ent company  then  operating  that  line;  that 
all  the  rights  of  creditors  and  liens  upon  the 
property  of  either  of  the  constituent  corpo- 
rations should  be  preserved  unimpaired,  and 
those  corporations  should  be  deemed  to  con- 
tinue In  existence  to  preserve  the  same ;  and 
that  all  debts,  liabilities,  and  duties  of  either 
of  the  constituent  companies  should  thence- 
forth attach  to  the  merged  corporation  and  be 
enforced  against  it  to  the  same  extent  as  if 
said  debts,  liabilities,  and  duties  had  been  in- 
curred or  contracted  by  it  The  agreement  al- 
so provided  that  a  refunding  mortgage  should 
be  created  by  the  new  corporation  and 
should  contain  a  clause  that  any  default  in 
respect  to  the  payment  of  interest,  or  any  oth- 
er provision  contained  in  the  refunding  mort- 
gage, should  be  construed  to  be,  and  should 
Immediately  cerate  as,  a  default  with  re- 
spect to  each  of  the  three  underlying  mort- 
gages of  the  oonstitnent  companies;  so  that 
thereupon  immediately  the  respective  trus- 
tees in  the  underlying  mortgages  or  the  hold- 
ers of  the  bonds  of  those  mortgages,  should 
forthwith  make  use  of  any  remedy  given 
in  either  or  any  of  those  mortgages  for  the 
enforcement  of  the  provisions  thereof  with 
relation  to  default,  as  therein  set  forth, 
with  like  effect  to  all  intents  and  pur- 
poses as  if  there  had  been  a  separate  de- 
fault under  each  of  the  underlying  mortgages ; 
and  no  payment  of  interest  under  any  of  the 


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101  ATIiANTIC  REPORTEU 


(Pa. 


underlying  mortgages  sbould  prevent  such 
default,  If  any  default  wttatever  sbould  be 
made  with  respect  to  any  of  the  provisions  of 
the  refunding  mortgage.  The  merged  com- 
pany created  a  bonded  indebtedness  of  $300,- 
000,  wliich  was  secured  by  a  mortgage  on 
all  of  Its  property  and  franchises. 

At  the  date  of  the  merger,  the  lines  of  the 
traction  company,  the  Selinsgrove  company, 
and  the  Lewlsburg  company  were  end  to  end 
but  did  not  physically  connect,  and  after  the 
merger  the  consolidated  company  physically 
connected  the  tracks  of  the  three  constitu- 
ent companies  and  operated  them  as  one  line. 

The  Pennsylvania  Steel  Company  filed  a 
creditors'  bill,  on  November  13,  1913,  against 
the  merged  company,  alleging  insolvency,  and 
on  December  15,  1913,  the  court  entered  a  de- 
cree adjudging  the  defendant  to  be  insolvent 
and  appointed  three  receivers,  who  forthwith 
took  possession  of  the  street  railway  system 
of  that  company  and  have  since  operated  it 

Default  was  made  under  each  of  the  under- 
lying morCgages  of  the  three  constituent 
companies  and  also  the  top  mortgage  of  the 
merged  company,  but  no  bill  for  foreclosure 
was  filed  by  the  trustee  imder  the  Selins- 
grove and  Lewlsburg  companies  mortgagees. 

The  Philadelphia  Trust  Company,  trustee 
under  the  traction  company  utortgage,  pre- 
sented its  petition  to  the  court  below  aver- 
ring default  on  May  1,  1913,  and  thereafter, 
in  payment  of  the  interest  due  on  the  bonds 
issued  by  that  company  and  secured  by  the 
mortgage;  that  on  December  15,  1913,  the 
court  appointed  receivers  for  the  merged 
company  who  took  possession  of  all  Its 
property,  including  the  property  on  which 
the  traction  company  mortgage  was  a  lien; 
and  that  petitioner  had  received  the  written 
request  of  more  than  one-half  in  amount  of 
the  holders  of  the  outstanding  bonds  to  de- 
clare the  principal  of  all  the  bonds  to  be 
due  and  payable  Immediately  and  to  pro- 
ceed to  enforce  the  rights  and  liens  of  the 
bondholders  under  the  mortgage,  and  pray- 
ed for  leave  to  file  its  bUl  for  the  foreclosure 
of  the  mortgage,  naming  as  defendaiUs  in 
the  bill  the  traction  company  and  the  re- 
ceivers of  the  merged  company.  The  prayer 
of  the  petition  was  granted  on  December  7, 
1914,  and  on  the  same  day  the  bill  was  filed. 

On  December  21,  1914,  the  receivers  of  the 
mergied  company  presented  a  petition  to  the 
court  below  and  obtained  a  rule  to  show 
cause  why  the  court  should  not  decree  a  sale 
of  the  corporate  rights,  francliises,  and  prop- 
erty of  that  company  by  the  reoeivers,  freed 
and  disdiarged  from  the  lien  and  operation 
of  the  several  mortgages  of  the  constituent 
and  merged  companies.  Judgments,  vendors' 
llena  and  paramount  liens,  specifically  men- 
tioned in  the  petition,  and  freed  and  dis- 
charged from  the  lien  and  operation  of  all 
other  liens  of  any  nature  and  character 
whatsoever.  The  petition  alleged  that  a 
separate  foreclosure  and  sale  of  the  road  I 


covered  by  the  traction  company's  mortgage, 
now  asked  for  by  the  trustee  under  that 
mortgage,  would  iwork  Irreparable  injury  to 
the  bondholders  of  the  merged  and  other 
constituent  companies,  by  causing  the  dis- 
memberment of  the  system  of  railways  opei^ 
ated  as  a  unit  by  the  receivers;  that  a  sepa< 
rate  foreclosure  and  sale  of  the  traction  com- 
pany's road  would  be  to  the  manifest  in- 
justice of  creditors  of  aU  classes;  and  that, 
as  no  bill  had  been  filed  to  foreclose  the  mort- 
gages of  the  other  two  constituent  compa- 
nies, the  receivers  would  be  left  in  the  em- 
barrassing position  of  trying  to  operate  as 
a  unit  two  pieces  of  disjoined  and  disconnect- 
ed railway.  The  Philadelphia  Trust  Com- 
pany, trustee  under  the  traction  company 
mortgage,  filed  ail  answer  averring  that  the 
merger  of  the  constituent  companies  could 
not  impair,  injure,  or  affecb  the  security  for 
the  bonds  as  established  by  the  traction 
company  mortgage,  and  denying  the  material- 
ity of  the  reasons  assigned  in  the  petition 
for  an  order  for  a  receiver's  sale  of  the  prop- 
erty. The  answer  also  avers  that  the  court 
was  without  authority  to  grant  the  prayer 
of  the  petitioners  for  an  order  to  selL  A 
committee  of  the  bondholders  of  the  traction 
company  Joined  in  the  answer  of  the  Phila- 
delphia Trust  Company.  The  Scranton  Trust 
Company,  trustee  for  the  holders  of  the  bonds 
secured  by  the  mortgage  of  the  Selinsgrove 
company,  filed  an  answer  in  which  It  denied 
the  material  facts  alleged  in  the  receivers' 
petition,  and  also  the  Jurisdiction  of  the  court 
to  OTder  a  sale  of  the  properties  as  a  whole, 
as  prayed  for  in  the  petition,  divested  of  aU 
Uens,  and  particularly  the  lien  of  the  mort- 
gage of  the  Selinsgrove  company.  The  an- 
swer also  averred  that  the  holders  of  the 
bonds  would  be  deprived  of  the  additional 
value  of  the  jwx^erty  arising  from  the  statu- 
tory ri^t  of  the  purchasers  of  the  property 
to  organize  a  corporation  and  to  operate  the 
property  as  a  separate  and  independent  street 
railway. 

On  January  4,  1915,  tba  president  and  re- 
ceivers of  the  merged  company  filed  on  an- 
swer to  the  bill  of  the  Philadelphia  Trust 
Company  to  foreclose  the  mortgage  given  by 
the  traction  company.  The  answer  admits  all 
the  averments  of  the  bill  except  that  as  to 
the  request  of  more  than  one-half  the  bond- 
holders, which  was  afterwards  proved  and 
found  by  the  court,  and  avers  that  the  re- 
ceivers had  applied  to  the  court  for  leave 
to  sell  the  property  and  franchises  of  the 
merged  company,  and  it  then  sets  forth  the 
same  reasons  for  objecting  to  the  foreclosure 
of  the  traction  company  mortgage  las  are  giv- 
en In  the  receivers'  applicatioa  to  the  court 
for  leave  to  sell  the  property  and  franchises 
of  the  merged  company. 

The  cases  were  heard  on  the  pleadings 
and  testimony,  and  the  court  granted  the 
prayer  of  the  receivers'  petition  for  an  order 
to  sell,  and  entered  a  decree  authorizing  them 


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Pa.)        FHILAD£LPHIA  TKUST  CO.  v.  NORTHUMBEBIiAND  COUNTT  T.  CO.        973 


(o  sell,  as  an  entirety,  the  corporate  rights, 
franchisee,  and  property  of  the  merged  oor- 
poration  and  ot  Ita  oon^ltuent  corporations 
at  the  date  of  the  merger,  divested  of  all 
Uens  by  mortgage.  Judgment,  decree,  or  other- 
wise, apon  the  merged  railway,  whether  be- 
fore or  subsequent  to  the  merger,  and  wheth- 
er against  the  merged  corporation  or  Jointly 
or  severally  against  its  constituent  corpora- 
tions. The  decree  required  a  cash  deposit 
of  $10,000  by  each  bidder,  and  a  cash  pay- 
ment of  $100,000  on  acceptance  of  any  bid, 
and  permitted  the  use  of  bonds  In  payment 
of  the  amount  of  the  bid  above  the  deposit 
and  the  down  money,  and  then  allowed  a 
credit  for  the  bonds  In  "sudi  sums  as  would 
be  payable  oa  such  bonds  and  coupons  out 
of  the  purchase  price,  if  the  whole  amount 
thereof  bad  bees  paid  in  cash."  From  this 
decree  the  Philadelidiia  Trust  Ckunpany,  trus- 
tee, and  a  committee  of  bondholders  of  the 
traction  company  mortgage  took  an  appeal, 
at  No.  273,  January  term,  1916,  as  did  also 
the  Scranton  Trust  Company,  trustee  under 
the  Selinsgrove  company  mortgage,  at  No. 
275,  January  term,  1916.  The  court  also 
entered  a  decree  on  the  bill  filed  by  the 
Philadelphia  Trust  Company,  trustee,  for  the 
foreclosure  of  the  traction  company  mort- 
gage, that  the  mortgage  was  a  valid  and 
subelsting  mortgage  and  constituted  a  first 
lien,  with  the  exception  of  certain  claims 
alleged  to  be  preferential,  and  then  under- 
going adjudication  by  the  court,  on  that  com- 
pany's corporate  rights,  franchises,  and 
property  covered  thereby,  and  that  there  was 
default  in  payment  of  Interest  due  on  the 
mortgage  whereby  the  principal  of  the  mort- 
gage was  now  due;  but  denied  a  separate 
sale  In  foreclosure  by  the  trustee  under  the 
traction  company  mortgage,  and  directed 
that  the  corporate  rights,  franchises,  and 
property  covered  by  that  mortgage  be  sold 
pursuant  to  the  general  order  of  sale  issued 
under  the  court's  decree  to  the  receivers  of 
the  merged  company.  From  this  decree  the 
Philadelphia  Trust  Company,  trustee,  appeal- 
ed, at  No.  272,  January  term,  1916. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TRFPiAT,  POTTEIB,  STEWART,  MOSCQ- 
ZISKER,  FBAZER,  and  WALUING,  JJ. 

C.  La  Rue  Munson,  of  Willlamfiport,  J. 
Simpson  Kline,  of  Suinbury,  and  Townsend, 
Elliott  &  Munson,  for  appellant  Philadelphia 
Trust  Co.  W.  L.  Hill,  of  Scranton,  for  appel- 
lant Scranton  Trust  Co.  Ellis  Ames  Bal- 
lard, of  Philadelphia,  J.  Fred  Schaffer,  of 
Sunbury,  and  Boyd  Lee  Spahr,  of  Philadel- 
phia, for  appellees. 

MESTREZAT,  J.  These  three  appeals  are 
from  two  decrees  of  the  court  of  common 
pleas  of  Northumberland  county,  sitting  in 
equity,  and  as  the  questions  raised  In  all 
the  appeals  are  practically  Identical,  they 
may  be  considered  and  disposed  of  in  one 
opinion.    The  facts  will  be  found  in  detail 


in  the  reporter's  notes.  They  are  principal- 
ly of  record  and  none  of  them,  essential  to 
the  dedsl<»i,  is  in  dispute.  The  Sunbury  & 
Susquehanna  Railway  Company,  herein  call- 
ed the  "merged  company,"  was  formed  by 
an  agreement,  dated  January  16,  1012,  merg- 
ing and  consolidating  the  Northumberland 
County  Traction  Company,  herein  called 
"traction  company,"  the  Simbury  &  Selins- 
grove Electric  Street  Railway  Company, 
herein  called  "Selinsgrove  company,"  the 
Sunbury,  Lewisburg  &  Milton  Railway  Com- 
pany, herein  called  "Lewisburg  company," 
and  two  other  railway  companies,  the  mer- 
ger being  made  in  pursuance  of  the  act  of 
May  3,  1909  (P.  L.  408).  Prior  to  the  merger, 
the  three  specifically  named  constituent  com- 
panies independently  owned  and  operated 
street  rallwaya  They  each  secured  an  issue 
of  first  mortgage  bonds  by  a  mortgage  or 
trust  deed  to  a  trustee  on  all  the  property 
and  franchises  then  owned  or  thereafter  to 
be  acquired  by  them  respectively,  and  the 
bonds  are  still  outstanding  and  are  due  and 
unpaid.  The  merged  company  also  secured 
a  bond  issued  by  a  top  mortgage  and  those 
bonds  are  outstanding  and  default  in  pay- 
ment was  made.  On  December  15,  1913.  on 
a  creditors'  bill  filed  by  the  Pennsylvania 
Steel  Company,  the  merged  company  was  ad- 
Judged  insolvent  and  receivers  were  appoint- 
ed by  the  court  below.  Subsequently,  the 
court  declined  to  permit  the  Philadelphia 
Trust  Company,  trustee  in  the  traction  com- 
pany mortgage,  to  foreclose  its  mortgage  and 
sell  the  mortgaged  premises,  and  granted  the 
receivers  an  order  to  sell,  as  an  entirety, 
the  property  and  franchises  of  the  merged 
corporation  and  its  constituent  torporations, 
divested  of  all  liens  against  the  consolidated 
and  constituent  companies.  From  these  de- 
crees, the  Philadelphia  Trust  Cbmpany  and 
the  Scranton  Trust  Company,  trustees  in 
two  of  the  underlying  mortgages,  have  taken 
appeals. 

The  principal  and  controlling  questions  in 
the  appeals  are  substantially  the  same,  and 
may  be  stated  as  follows:  (1)  Can  a  court 
of  equity  deny  the  trustee  under  the  traction 
company  mortgage  the  right  upon  default 
to  foreclose  and  sell  the  mortgaged  proper- 
ty? (2)  Can  the  court  decree  a  sale  of  the 
merged  road  as  a  unit  by  the  receivers,  di- 
vested of  the  Uen  of  the  underlying  mortgag- 
es of  the  constituent  companies?  (3)  Does 
the  Public  Service  Company  Law  require 
consent  of  its  commission  to  foreclose  the 
ui>^erlying  traction  company  mortgage? 

[1,2]  The  learned  Judge  of  the  court  be- 
low refused  to  permit  a  separate  foreclosure 
and  sale  under  the  traction  company  mort- 
gage, and  the  reasons  assigned  are  that  it 
would  work  irreparable  injury  to  the  bond- 
holders of  the  other  constituent  companies 
and  the  merged  company;  would  be  to  the 
manifest  injustice  of  all  classes  of  creditors ; 
would  result  In  imposing  additional  burdens 
upon  the   traveling  public,   and  materially 


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IncoaTenlence  the  public  travel  upon  the 
railway;  would  disconnect  the  roads  of  the 
other  two  constituent  companies  and  compel 
the  receivers  to  operate  them  as  a  unit  with- 
out any  means  of  connection ;  would  greatly 
impair  the  value  of  the  rolling  stock  which 
is  used  on  the  whole  system ;  would  pre- 
vent marshaling  the  assets  as  between  the 
liens  and  preferential  claims  and  between 
the  units  composing  the  merged  company; 
and  the  road  would  sell  for  a  better  price 
as  a  whole  than  if  sold  in  parts. 

We  are  not  convinced  that  these  or  any 
other  reasons  brought  to  our  attention  are 
Buffldent,  under  the  facts  of  these  cases,  to 
Justify  the  court  in  refusing  to  permit  the 
trustee  under  the  traction  company  mort- 
gage to  enforce  its  rights  and  those  of  the 
bondholders  acquired  by,  and  in  accordance 
with,  the  terms  of  the  mortgage.  This  ob- 
ligation was  given  to  secure  a  bond  issue  and 
Is  the  contract  between  the  company  and  its 
creditoHs,  the  holders  of  its  bonds.  The 
mortgage,  In  specific  terms,  Imposes  the  ob- 
ligation to  pay  the  debt  and  Interest  of  the 
bonds  according  to  their  tenor,  and  provides 
remedies,  in  case  of  a  default  in  the  perform- 
ance of  any  covenant  or  stipulation  of  the 
contract,  for  enforcing  the  rights  and  liens 
of  the  bondholders.  These  remedies,  as  the 
mortgage  discloses,  are  by  a  foreclosure  or 
other  appropriate  proceeding,  or  by  a  sale 
of  the  mortgaged  property  by  the  trustee,  aud- 
it Is  declared  that  "nothing  herein  contained 
shall  be  construed  as  abridging  the  power  of 
the  trustee  to  foreclose  this  indenture  by 
bill  In  equity  at  any  time  after  any  default 
shall  have  been  made  and  shall  have  contin- 
ued as  above  provided."  It  is  stipulated  in 
the  mortgage  that.  In  any  foreclosure  or 
other  sale  of  the  property  and  franchises  of 
the  company  in  the  execution  of  its  provi- 
sions, the  purchaser  may  use  any  of  the  ma- 
tured and  unpaid  bonds  and  coupons  toward 
payment  of  the  purchase  price.  It  is  conced- 
ed, and  the  court  finds,  that  default  was 
made  in  payment  of  interest  on  the  bonds 
whereby  the  principal  thereof  had  become 
due,  and  that  the  trustee  had  been  requested 
to  declare  all  the  bonds  due  and  payable 
and  to  proceed  to  enforce  the  rights  and  Hens 
of  the  bondholders,  as  provided  in  the  mort- 
gage. The  parties,  therefore,  not  only  stipu- 
lated In  the  mortgage  for  the  payment  of  the 
bonds  with  their  Intetesl,  but  provided  there- 
in the  remedies  to  enforce  the  payment  of 
the  indebtedness.  The  federal  and  state  Con- 
ctitutions  forbid  the  Impairment  of  the  obli- 
gation of  contracts,  and,  as  a  mortgage  is 
a  contract.  Its  terms  are,  therefore.  Invio- 
lable. This  Inhibition  extends  to  the  remedy 
spedfled  In  the  contract  which  becomes  a 
part  of  the  obligation  and,  without  con.sent, 
cannot  be  altered,  defeated  or  otherwise  af- 
fected by  subsequent  legislation  or  by  the 
judgment  or  decree  of  a  Judicial  tribunal. 
This  is  settled  on  principle  and  authority, 
and  of  the  numerous  decisions  in  all  Juris- 


dictions enforcing  the  doctrine  we  need  dte 
but  two  of  our  own  cases.  In  Blllmeyer  ▼. 
Evans  &  Rodenbaugh,  40  Pa.  324,  327,  Mr. 
Justice  Woodward,  delivering  the  opinion, 
said: 

"A  statute  strictly  remedial  may  impair  the 
obligation  of  a  contract,  and  when  this  happens 
the  act  is  unconstitutional.  Bronson  v.  Kinrie 
et  al.,  42  V.  S.  311  [11  Li  Ed.  143].  Thisid- 
ways  happens  where  the  parties  make  legal  rem- 
edies a  subject  of  their  contract,  and  sabse- 
quent  lesislation  conflicts  with  what  they  have 
expressed  in  their  agreement.  If  diey  do  not 
prescribe  the  rule  of  remedy  in  their  contract, 
the  lawmaking  power  is  free;  but  if  they  do, 
they  become  a  law  to  themselves,  and  the  Legis- 
lature must  let  them  alone." 

In  the  subsequent  case  of  Breltenbadi  v. 
Bush,  44  Pa.  S13,  318,  84  Am.  Dea  442,  the 
same  learned  Judge,  speaking  for  the  court, 
restates  the  doctrine  as  follows: 

"It  sometimes  happens  that  the  parties  con- 
tract concerning  the  remedy — that  they  stipu- 
late in  the  body  of  the  contract  that,  in  case 
of  the  failure  of  payment  by  a  certain  day,  there 
shall  be  no  stay  of  execution,  or  that  the  mort- 
gagees may  enter  and  aeU  the  mortgaged  estate 
— or  that  all  exemption  rights  shall  be  waived. 
In  such  cases,  the  rule  is  that  the  remedy  be- 
comes a  part  of  the  obligation  of  the  contract, 
and  any  subsequent  statute  which  affects  the 
remedy  impairs  the  obligation,  and  is  uncunsti- 
tutionah" 

The  constitutional  provision,  federal  (TT.  S. 
Const,  art  1,  (  10)  and  state  (Const,  art  1,  I- 
17),  forbidding  the  impairment  of  the  obliga- 
tion of  contracts,  lays  Its  hand  on  the  legis- 
lative department  of  the  government,  but  the 
principle  has  like  force  when  Invoked  for  a 
similar  purpose  In  the  Judidal  department 
There  is  no  anthority,  common-law  or  statu- 
tory, in  the  courts  which  empowers  them  to 
exercise  functions  expressly  onder  the  ban  of 
the  constitutional  Inhibition.  In  the  language 
of  Chief  Justice  Beasley,  In  New  Jersey  Mid- 
land By.  Co.  V.  Strait,  36  N.  J.  Law.  322,  324. 
"neither  the  court  nor  the  Legislature  can  al- 
ter the  bargain  betweoi  these  parties."  We 
have  distinctly  so  held  in  Galey  v.  Ouffey, 
248  Pa.  523,  528,  91  Atl.  238,  240,  where  It  is 
said: 

"It  is  true  that  what  is  prohibited  is  legisla- 
tive action  the  effect  of  which  would  be  the  im- 
pairment of  a  contract;  but  what  the  Legisla- 
ture may  not  do  in  this  regard  certainly  die 
courts  may  not  do.  The  power  that  is  herejde- 
nied  the  Legislature  was  not  reserved  to  the 
courts." 

It  Is,  therefore,  clear  that  the  terms  of  the 
mortgage  contract  cannot  t>e  altered  or  im- 
paired by  either  the  Legislature  or  the  courts, 
and  this  applies  to  the  remedies,  or  specific 
provision  for  its  enforcement,  as  well  as  to 
the  obligation  to  pay  the  bonded  Indebted- 
ness. The  learned  Judge  found  that  the  trac- 
tion company  mortgage  is  a  valid  and  subsist- 
ing mortgage  and  constitutes  a  first  lien  ni>- 
on  all  the  real  and  other  estate,  property  and 
franchises  of  that  company,  with  the  right  of 
the  mortgagee,  on  default  to  sell  the  mort- 
gaged property,  or  foreclose  the  mortgage, 
and  the  right  of  the  purchaser  to  use  the 
bonds  in  payment  of  the  purchase  price,  but 


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Pa.)        PHILADELPHIA  TRUST  CX).  v.  NORTHUMBERLAND  COUNTT  T.  CO.        975 


refused  to  permit  the  mortKagee  trust  com- 
pany to  enforce  the  lien  and  rights  of  the 
bondboldens  In  accordance  with  the  q;>eclflc 
provisions  of  the  mortgage  contract.  If,  as 
said  by  Mr.  Justice  Woodward  In  the  Bill-, 
meyer  Case,  the  court  may  do  this,  the  consti- 
tutional provisions  are  a  vain  parade  of 
words,  a  mere  theoretical  rule  without  any 
practical  force  or  value.  This  action  of  the 
court  not  <«Iy  violated  the  contractual  rights 
of  the  holders  of  the  bonds  secured  by  their 
mortgage  but  also  the  express  provisions  of 
the  merger  agreement,  as  well  as  the  provi- 
sions of  the  act  of  May  3,  1909  (P.  L.  408), 
under  which  the  several  constituent  compa- 
nies were  consolidated.  The  merger  contract 
provides,  as  will  be  observed,  "that  all  the 
rights  of  creditors  and  all  liens  upon  the 
property  of  either  of  the  said  corporations, 
parties  hereto,  shall  be  preserved  unimpair- 
ed, and  the  said  corporations  may  be  deemed 
to  continue  In  existence  to  preserve  the 
same."  This  Is  the  Identical  language  of  the 
third  section  of  the  act  of  1909,  and,  there- 
fore, the  rights  and  remedies  conferred  on 
the  holders  of  the  bonds  under  the  traction 
company  mortgage  were  protected  and  assur- 
ed by  agreement  of  the  several  constituent 
companies  entering  the  merger,  and  by  the 
express  mandate  of  the  statute  authorizing 
and  legalizing  the  agreement  which  unified 
the  several  constituent  systems  of  electric 
railways. 

The  effect  of  the  decree  refusing  the  trus- 
tee of  the  traction  company  mortgage  the 
right  to  foreclose  and  sell  under  Its  mortgage 
is  far-reaching,  and  deprives  the  bondholders 
of  contractual  rights  essential  to  the  full  pro- 
tection of  their  securities.  It  is  conceded 
and  was  found  by  the  court  that  default  was 
made  by  the  three  constituent  companies,  and 
hence  the  principal  and  Interest  of  the  whole 
bond  Issue  was  due  and  unpaid  at  the  time 
permission  was  asked  to  proceed  on  the  trac- 
tion company  mortgage.  By  the  terms  of  the 
mortgage,  therefore,  the  traction  company 
was  barred  from  its  equity  of  redemption  In 
the  mortgaged  premises  and  the  mortgagee 
was  authorized  to  foreclose  the  mortgage  and 
to  collect  the  indebtedness.  This,  as  Is  ap- 
parent. Is  an  Important  right  possessed  by  the 
mortgagee,  especially  as  the  mortgage  pro- 
vides no  other  source  from  which  the  bonds 
can  be  paid.  The  decree  also  deprives  the 
bondholders  of  the  valuable  right,  in  case  of 
their  being  compelled  to  purchase  the  prop- 
erty to  protect  themselves,  of  applying  the 
bonds  In  payment  of  the  purchase  price, 
which  Is  permitted,  as  provided  Iq  the  mort- 
gage, "in  case  any  foreclosure  or  any  other 
sale  shall  be  made  of  the  said  property  and 
franchises  in  execution  of  the  provisions  of 
this  mortgage."  The  denial  of  the  right  to 
proceed  on  the  mortgage  took  away  this 
right,  a  right  which  unquestionably  enhanced 
the  value  of  the  bonds.  It  is  true,  the  decree 
of  sale  issued  to  the  receivers  permitted  the 
use  of  the  bonds  in  payment  of  the  purchase 


price;  but  it  required  a  cash  deposit  of  $10,- 
000  by  each  bidder,  and  a  cash  payment  of 
$100,000  on  acceptance  of  the  bid,  and  impos- 
ed other  terms  different  from  those  provided 
in  the  merger  agreement,  which  rendered  this 
contractual  right  practically  valueless.  The 
denial  of  a  foreclosure  and  sale  under  the 
traction  company  mortgage  also  seriously  af- 
fects the  bondholdiug  creditors,  in  that  it  de- 
prive the  purchasers  of  the  property  and 
franchises  of  that  company  of  the  statutory 
right  to  organize  a  corporation  and  operate 
the  property  as  an  Independent  rollway. 

The  reasons  assigned  by  the  learned  court 
below  for  refusing  to  permit  the  trustee  to 
maice  a  separate  sale  in  foreclosure  of  the 
mortgaged  property,  as  will  be  observed,  are, 
in  effect,  that  it  would  be  detrimental  to  the 
interests  of  the  holders  of  the  bonds  of  the 
other  constituent  companies  and  of  the  merg- 
ed company,  would  result  in  Inconvenience 
to  public  travel  on  the  merged  railway  by 
disconnecting  the  roads  of  the  underlying 
companies,  and  that  the  road  as  a  whole 
would  sell  for  a  better  price.  These  reasons 
are  not  sufficient  to  sustain  the  court's  action. 
They  entirely  Ignore  and  put  aside  the  con- 
ceded rights  of  the  traction  company  bond- 
holders which  are  secured  by  their  mortgage, 
and  of  which  all  subsequent  creditors  had 
full  notice.  These  creditors  are  not  in  a 
position  to  insist  that  their  property  interests 
and  the  convenience  of  the  public  will  be 
endangered  or  sacriSced  by  a  decree  permit- 
ting the  holders  of  the  traction  company 
bonds  to  enforce  payment  by  availing  them- 
selves of  the  remedies  granted  them  in  the 
mortgage.  Such  a  decree  will  violate  no 
rights  of  those  creditors,  although  their  in- 
terests may  be  injuriously  affected,  and  hence 
they  cannot  successfully  invoke'  the  aid  of 
a  court  to  defeat  the  prior  rights  of  the 
traction  company's  creditors,  which  are 
sought  to  ba  «iforced  in  strict  compliance 
with  the  company's  contractual  obligation. 
The  language  of  the  court  in  Palrpoint  Mfg. 
Ck>.  et  al.  V.  Philadelphia  Optical  &  Watch 
Co.  et  al.,  161  Pa.  17,  22,  28  Atl.  1003,  may 
well  be  applied  here.  In  reversing  a  decree 
which  enjoined  a  sale  by  the  sheriff  at  the 
Instance  of  the  receivers  of  the  defendant 
company,  we  said: 

"The  confession  of  judgment  to  the  appellant 
being  lawful,  the  only  remaining  reason  present- 
ed by  tlie  petition  for  interfering  with  tne  writ 
of  execution  is  that  a  sale  can  be  more  advan- 
tageously conducted  in  the  interests  of  all  the 
creditors  by  the  receivers.  This  it  not  a  suffi- 
cient reason.  The  appellant  is  pursuing  the  reg- 
ular and  orderly  course  for  the  collection  of  a 
judgment  lawfully  obtained  for  a  debt  admitted- 
ly due.  This  is  its  right.  The  interests  of 
other  creditors  may  be  affected  thereby,  but,  un- 
til it  is  shown  that  their  rights  are  violated,  no 
one  has  a  standing  to  challenge  the  appellant's 
right  to  use  the  means  provided  by  law  for  the 
enforcement  of  its  claim." 

[3]  We  do  not  agree  that  the  so-called 
preferential  claims  take  precedence  of  the 
bonds  secured  by  the  underlying  mortgages. 


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They  are  debts  Incurred  by  the  recovers  of 
the  merged  company,  and  hence  were  con- 
tracted subsequently  to  the  then  existing  in- 
debtedness created  by  the  prior  mortgages  of 
the  constituent  companies.  They  can,  and 
doubtless  will,  be  paid  out  of  the  funds  aris- 
ing from  the  operation  of  the  road  by  the 
receivers. 

The  learned  chancellor  held  that  the  court 
had  authority  to  decree  the  sale  of  the  merg- 
ed road  as  an  entirety,  by  Its  receivers,  freed 
and  discharged  of  all  liens,  including  the 
mortgages  of  the  underlying  companies.  In 
considering  this  question,  it  is  well  to  keep 
in  view  the  fact  that  the  parties  objecting 
to  the  court's  conclusion  are  the  holders  of 
the  bonds  of  the  underlying  companies,  and 
not  the  holders  of  the  bonds  of  the  merged 
company.  The  reasons  assigned  for  the 
court's  conclusion  are  the  same  as  those  for 
refusing  to  permit  a  separate  sale  In  fore- 
closure of  the  traction  company  mortgage, 
and  that  the  Jurisdiction  of  the  court  in  eq- 
uity having  attached  by  virtue  of  the  pro- 
ceedings resulting  in  placing  the  merged  road 
in  the  hands  of  receivers,  the  court  had  au- 
thority to  give  complete  and  adequate  relief 
by  decreeing  a  sale  of  the  property  discharg- 
ed of  all  liens  against  the  merged  company 
and  its  constituent  companies.  The  chan- 
cellor further  suggested,  as  a  reason  for  his 
action,  that  a  separate  sale  in  foreclosure 
of  the  traction  company  unit  would  interfere 
with  the  administration  of  the  receivership, 
and  consequently  with  the  Jurisdiction  of 
the  court  to  administer  adequate  relief  in 
the  Initial  suit  wherein  the  Jurisdiction  of  the 
court  first  attached. 

The  statutory  merger  of  the  constituent 
companies,  as  already  pointed  out,  did  not 
affect  the  Ilena  against  those  companies  nor 
the  rights  of  their  creditors  existing  at  the 
time  of  the  merger,  and  the  consolidated 
company  took  tlie  property  of  the  underlying 
companies  with  notice  of  and  subject  to  such 
rights  and  liens.  The  merger  agreement  spe- 
cifically protects  the  mortgage  liens  on  the 
property  of  the  constituent  companies,  and 
the  act  of  1900  provides  that  they  shall  con- 
tinue unimpaired  after  the  consolidation. 
Tb.^  imderlylng  mortgages  were  first  liens 
on  the  mortgaged  property  and  franchises,  as 
found  by  the  court,  and,  "such  being  the  fact, 
the  bondholders  are  entitled  to  the  money  as 
against  the  comi>any  and  all  persons  holding 
under  it  with  notice  of  their  position."  Fi- 
delity Ins.,  Trust  &  Safe  Deposit  Ca  v.  West 
Penna.  &  Shenango  Connecting  R.  R.  Co., 
138  Pa.  494,  {S04,  21  AtL  21,  21  Am.  Bt  Rep. 
911.  The  effect  of  the  statutory  merger  of 
corporations  on  the  OMistituent  companies  is 
well  expressed  by  Mr.  Justice  Gray  In  the 
matter  of  Utlca  National  Brewing  Co.,  1S4 
N.  T.  268,  273,  48  N.  E.  621,  522.  The  learned 
Justice  says: 

"It  is  argued  •  •  •  that  by  the  terms  of 
the  consolidation  agreement  the  new  corporation 
w()S  freed  from  the  debts  and  liabilities  of  the 


corporations  merging  Into  ft.  If  we  ml^ht  as- 
sume that  such  was  intended  aa  a  result  of 
consolidation  under  the  agreement,  nevertheless 
it  would  be  wholly  inoperative  to  accomplish 
any  such  thing  as  to  creditors  who  were  not 
parties  to  the  agreement.  Such  creditors  were 
not  bound  by  any  of  its  provisions.  The  statute 
protected  them,  and  consolidation  pursuant  to 
Its  permission  and  provisions,  whatever  it  may 
mean  for  the  stockholders  because  of  their  agree- 
ment, leaves  the  creditors  precisely  in  the  situ- 
ation which  the  statute  defines.  If  they  have 
not  done  anything  to  impair  or  to  release  their 
rights,  it  is  not,  and  could  not  be,  within  the 
purview  of  the  statute  that  those  rights  may  be 
impaired  through  the  action  of  members  of  the 
consolidating  corporations." 

To  the  same  effect  are  Baltimore  &  Susque- 
hanna R.  R.  Co.  V.  Musselman,  2  Grant  (Pa.) 
348;  Wabash,  St  Louis  &  Paa  Ry.  Co.  ▼. 
Ham  et  al.,  114  U.  S.  587,  595,  5  Sup.  Ct. 
lOSl,  29  L.  Ed.  235;  New  Jersey  Midland 
Ry.  Co.  V.  Strait,  35  N.  J.  Law,  322 ;  Smith 
V.  Los  Angeles  &  Pac.  Ry.  Co.,  98  Cal.  210, 
33  Pac.  53;  State,  use  of  Dodson  et  aL,  v. 
Baltimore  &  Lehigh  R.  B.  Co.,  77  Md.  489. 
26  Atl.  865. 

[4,  B]  The  receivers  were  appointed  on  a 
creditors'  bill  filed  on  the  equity  side  of  the 
court  by  the  Pennsylvania  Steel  Company 
against  the  merged  company,  averring  the 
Insolvency  of  the  latter  company  and  praying 
for  the  appointment  of  receivers  to  take  pos- 
session of  its  property  and  franchises  and 
operate  its  railway  system.  The  effect  of 
the  receivership  was  to  place  the  property  of 
the  merged  company  in  the  bands  of  the  re- 
ceivers to  be  administered  for  the  benefit  of 
the  insolvent  corporation.  It  did  not,  and 
could  not,  affect  or  impair  the  liens  or  con- 
tractual rights  of  the  creditors  of  the  merged 
company  or  of  any  of  the  constituent  compa- 
nies. Galey  v.  Guffey,  248  Pa.  523,  94  AtL 
238.  A  receiver  of  the  insolvent  corporation 
stands  in  the  shoes  of  the  owner  and  takes 
only  his  Interest  In  the  property  subject  to 
all  valid  liens  against  it.  He  can  acquire  no 
other,  greater,  or  better  interest  than  the 
debtor  had  In  the  property,  and  to  this  extent 
the  receiver  has  been  held  to  stand  in  ths 
shoes  of  the  debtor,  and  he  has  the  same 
right  which  the  Insolvent  would  have  had, 
and  can  set  up  no  rights  against  claims 
whl(di  the  debtor  could  not  have  set  up.  34 
Gyc.  191,  and  cases  dted.  The  appointment 
of  a  receiver  for  property  does  not  affect  pre- 
existing liens  upon  the  property,  or  vested 
rights  or  Interests  of  third  persons  therdn. 
A  receiver.  It  Is  held,  succeeds  only  to  such' 
right,  title,  and  Interest  in  the  property  as 
the  Individual  or  corxwratlon  for  which  he  is 
appointed  receiver  had  at  the  time  the  ap- 
pointment was  made.  23  Amer.  &  Eng.  En- 
eye  of  Law  (2d  Ed.)  1091.  "The  appoint- 
ment of  a  receiver,"  says  Mr.  Justice  Brewer, 
delivering  the  opinion  in  Kneeland  v.  Ameri- 
can Loan  ft  Trust  Co.,  136  U.  S.  89,  97,  10 
Sup.  (X  960,  053,  34  L.  Ed.  379,  "vests  in  the 
court  no  absolute  control  over  the  property, 
and  no  general  authority  to  displace  vested 
contract  liens.    •    •    •    One  holding  a  mort- 


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gage  debt  upon  a  railroad  bas  tbe  same  right 
to  demand  and  expect  of  the  court  respect  tor 
his  vested  and  contracted  priorltj  as  tbe 
holder  of  a  mortgage  on  a  farm  or  lot.  •  •  * 
We  emphasize  this  fact  of  the  sacredneaa  of 
contract  liens,  for  the  reason  that  there  seems 
to  be  growing  an  Idea,  that  the  chancellor. 
In  the  exercise  of  his  eqaitable  powers,  has 
unlimited  discretion  In  this  matter  of  the 
displacement  of  vested  liens."  This  language 
Is  quoted  with  approval  In  Thomas  v.  West- 
em  Oar  Ck).,  149  TJ.  S.  95,  HI,  13  Sup.  Ct.  824, 
87  L.  Bd.  663,  and  other  federal  decisions. 

In  view  of  the  effect  of  the  consolidation 
of  tbe  several  constituent  companies  and  of 
the  appointment  of  receivers  for  the  merged 
company,  we  cannot  assent  to  the  conclusion 
tbat  tbe  court  appointing  the  receivers  bad 
jurisdiction  to  decree  a  sale  of  tbe  merged 
road  divested  of  the  liens  of  the  underlying 
mortgages.  Its  jurisdiction  extended  only 
to  the  administration  of  the  assets  of  the 
Insolvent  merged  company,  and  those  assets, 
to  tbe  extent  tbey  had  been  tbe  property  of 
tbe  underlying  Gomi)anles,  were  subject  to 
tbe  liens  and  contractual  rights  of  the  credi- 
tors of  those  companies  whldi,  by  tbe  con- 
tract and  the  statute,  were  "deemed  to  con- 
tinue in  existence  to  preserve  the  same." 
The  constituent  companies  were  not  brought 
within  the  jurisdiction  of  the  court  by  tbe 
appointment  of  receivers  for  the  consolidat- 
ed company.  It  was  therefore  clearly  beyond 
the  power  of  the  court  by  its  decree  to  divest 
tbe  liens  of  the  imderlylng  companies.  The 
creditors  of  these  companies  were  not  parties 
to  the  merger  agreement  and,  so  far  as  ap- 
pears, could  not  prevent  the  consolidation. 
Tbe  bondholders  of  the  respective  imderlylng 
corporations  and  their  mortgage  trustees 
were  not  required  to  give  their  assent,  and 
did  not  agree  to  the  merger  of  the  corpora- 
tions. The  rights  of  the  holders  of  the  bonds 
and  other  creditors  are,  as  we  have  seen, 
expressly  preserved  by  tbe  statute  and  the 
merger  agreement  executed  by  the  constitu- 
ent companies.  If,  as  already  pointed  out, 
tbe  court,  in  the  administration  of  the  assets 
of  the  merged  corporation,  were  permitted  to 
decree  a  sale  by  the  receivers,  divesting  the 
liens  of  the  mortgages  of  the  underlying  com- 
panies. It  would  be  in  plain  violation  of  the 
contractual  rights  of  the  holders  of  the 
mortgage  bonds  protected  by  the  federal  and 
state  Constitutions.  We  repeat  what  is  said 
above:  What  the  Legislature  cannot  do,  tbe 
courts  are  without  authority  to  do.  Tbe 
sacredness  of  a  contract  is  protected  by  tbe 
fundamental  law  of  the  land  and  cannot  be 
Invaded  by  a  court  ot  law  or  equity. 

A  decree  directing  a  sale  by  the  receivers 
discharged  of  all  liens  and  fixing  the  terms 
thereof,  not  only  violates  tbe  contractual 
rights  of  tbe  bondholders  of  tbe  constituent 
companies,  as  i>olnted  out  above,  but  does 
them  manifest  injustice.  The  mortgage  pro- 
Tides  that  in  case  of  a  sale  of  tbe  mortgaged 
101A<-62 


property  In  execution  of  its  provisions  tbe 
purchaser  shall  be  entitled  to  apply  the  bonds 
in  paymoit  of  the  purchase  price.  The  de- 
cree orders  a  sale  of  the  entire  property  of 
the  consolidated  company.  If  the  bondhold- 
ers of  either  of  the  constituent  companies  de- 
sire to  protect  their  interests  by  purchasing 
the  property,  they  must  buy  the  three  roads 
instead  of  one  and,  in  accordance  with  tbe 
decree,  deposit  |10,000  as  bidders,  pay  $100,- 
000  on  acceptance  of  tbe  bid,  and  be  per- 
mitted to  use  the  bonds  only  in  payment  of 
the  amount  of  the  bid  above  the  deposit  and 
the  down  money,  and  then  be  allowed  a  cred- 
it for  the  bonds  only  in  "such  sums  as  would 
be  payable  on  such  bonds  and  coupons  out  ot 
the  purchase  price.  If  the  whole  amount 
thereof  had  been  paid  in  cash."  The  decree, 
therefore,  Imposes  terms  on  the  bondholders 
of  the  respective  comx>anie8,  if  they  become 
purchasers,  which  are  violative  of  their  con- 
tractual obligation  and,  In  effect,  compels 
them  to  purchase  the  three  roads  and  thereby 
pay  some  pert  of  the  bonded  Indebtedness 
of  the  other  companies. 

The  creditors  of  the  merged  company  have 
no  just  ground  to  complain  if  a  sale  of  tbe 
property  to  be  made  by  the  receivers  is  wA- 
ject  to  the  lien  of  the  underlying  mortgages. 
Woodworth  v.  Blair,  112  U.  S.  8,  6  Sup.  Ot. 
6,  28  L.  Ed.  616.  Tbe  records  which  they 
were  bound  to  consult  gave  them  notice  of 
the  bonded  indebtedness  of  the  underlying 
companies  and  the  remedies  provided  for  its 
collection.  Tbe  holders  of  tbe  bonds  of  tbe 
merged  company,  therefore,  knew  tbat  tbey 
were  taking  the  top  bonds  subject  to  the  con- 
tractual rights  of  the  creditors  evidenced  by 
the  terms  of  the  underlying  mortgages,  which 
made  the  bonds  of  the  constituent  companies 
first  liens  on  tbe  property  and  franchises  of 
those  companies  and  provided  specific  reme- 
dies for  their  collection. 

[•]  Tbe  learned  court  below  was  clearly 
in  error  in  holding  that  tbe  Public  Service 
Company  Law  requires  the  consent  of  its 
commission  before  the  trustee  could  foreclose 
the  traction  company  mortgage  and  sell  the 
mortgaged  property.  This  is  not  a  proceed- 
ing instituted  by  the  merged  company  or  tbe 
traction  company  to  sell,  assign,  transfer, 
lease,  consolidate,  or  merge  its  property,  pow- 
ers, franchises,  or  privileges  to  or  with  any 
other  corporation,  which,  under  the  Public 
Service  Company  Law,  requires  the  approval 
of  its  commission,  but  Is  a  bill  in  equity  filed 
by  the  trustee  to  enforce  the  contractual 
rights  of  the  bondholders  by  foreclosing  the 
traction  company  mortgage  by  which  the 
bond  issue  is  secured.  In  other  words,  it 
Is  a  proceeding  by  the  trustee,  in  strict  con- 
formity with  the  contract,  to  collect  the 
bonded  Indebtedness  of  the  traction  company, 
and  there  is  no  provision  in  the  Public  Serv- 
ice Company  Law  which  attempts  to  or  can 
interfere  with  or  prevent  it 

Tbera  are  other  questions  of  minor  im- 


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101  ATIiANTIO  REPORTEB 


(Pt. 


portance  raised  by  the  asslgomenta,  but  they 
do  not  affect  our  conclusion  and,  therefore, 
need  not  be  considered. 

We  conclude  that  the  learned  court  below 
erred  in  refusing  to  permit  the  mortgagee  In 
the  traction  company  mortgage  to  enforce  the 
rights  of  the  holders  of  the  bonds  under  that 
mortgage  by  foreclosure  and  sale  of  the  mort- 
gaged property,  one  of  the  remedies  stipulat- 
ed In  the  contract  of  the  parties,  and  In  de- 
creeing a  sale  of  the  merged  roads  as  a  unit 
divested  of  the  Hen  of  the  underlying  mort- 
gages of  the  constituent  companies. 

It  is  ordered,  adjudged,  and  decreed  that 
the  appeals  of  the  Philadelphia  Trust  Com- 
pany, trustee,  at  Nos.  272  and  273,  January 
term,  1916,  and  of  the  Scrauton  Trust  Coui- 
I)any  at  No.  275,  January  term,  1016,  be  sus- 
tained to  the  extent  of  modifying  the  de- 
crees in  the  respective  cases  so  as  to  conform 
to  the  views  herein  expressed,  and  a  proce- 
dendo Is  awarded. 

Modification  of  Decree. 

PER  CURIAM.  And  now,  May  22,  1917, 
the  decree  In  the  above-entitled  cases  Is  mod- 
ified and  enlarged  as  follows:  In  the  case  In 
which  the  appeal  was  taken  to  No.  272,  Janu- 
ary term,  1916,  the  receivers  of  the  Sunbury 
&  Susquehanna  Railway  Company  are  direct- 
ed to  pay  all  the  costs  Incurred  since  the  fil- 
ing of  their  answer,  including  the  costs  of 
the  appeal ;  and  In  the  cases  in  which  the  ap- 
peals were  taken  to  Nos.  273  and  275,  Jan- 
uary term,  1916,  the  receivers  are  directed  to 
pay  the  costs  incurred  In  connection  with 
their  petition  for  an  order  of  sale,  including 
the  costs  of  the  appeals. 


<258  Pa.  »0 

HOPE  V.  KELLET  et  aL 

(Supreme   Court   of   Pennsylvania.     May   22, 
1917.) 

Wnxs  4s»8iO  —  Dbvisb  —  OovBiKuanon— 
Chasgc 
The  owner  of  property  subject  to  a  mortgage 
of  $800  joined  with  her  sister  in  borrowing  $1,- 
750,  and  gave  as  security  a  joint  mortgage  cov- 
eting her  own  property  and  other  property  of 
her  sister,  and  paid  off  the  |800  mortgage  out 
of  the  money  so  borrowed,  and  thereafter  paid 
interest  on  $800  of  the  $1,750  mortgage,  and  by 
will  devised  the  property  to  her  brother  and  his 
heirs,  provided  he  assume  and  pay  the  mort- 
gage. Held,  that  the  devisee  was  required  to 
pay  the  entire  $1,750  mortgage. 

Appeal  troax  Court  of  Common  Pleas,  Lu- 
seme  County. 

Case  stated.  In  case  of  Charles  Hope 
against  CSiarles  Kelley  and  others  to  deter- 
mine the  construction  of  a  will.  From  a 
judgment  for  plaintiff,  defendant  Charles 
Kelley  appeals.     Affirmed. 

Argued  before  BROWN,  O.  J.,  and  MES- 
TBEZAT.  POTTER,  FRAZER,  and  WAX/- 
UNO,  JJ. 


R.  B.  Alexander,  of  Wilkes-Barre,  for  ap- 
peUant.  Frank  P.  Slattery,  of  WUkes-Batre, 
for  appellee. 

BROWN,  C.  J.  In  an  amicable  action  in- 
stituted in  the  court  below  the  question  for 
its  determination  was  the  effect  to  be  given  to 
a  clause  In  the  will  of  Margaret  McDade,  de- 
ceased, ahd  the  judgment  from  which  we 
have  this  appeal  was  entered  on  facts  agreed 
upon  in  a  case  stated. 

On  April  1,  1906,  Mrs.  McDade  was  the 
owner  of  a  lot  of  ground — No.  516  Hazel 
street,  in  the  dty  of  Wilkes-Barre — which 
was  subject  to  a  mortgage  executed  by  her 
for  $800.  At  that  time  her  sister,  Annie 
Meighan,  wished  to  purchase  a  property  In 
Wright  township,  Luzerne  county,  and  ap- 
plied to  her  for  financial  assistance.  That 
this  might  be  rendered,  the  two  sisters  bor- 
rowed from  Peter  Hope  $1,750,  giving  as  se- 
curity therefor  their  joint  mortgage,  dated 
April  6,  1908,  covering  Mra  McDade's  prop- 
erty on  Hazel  street,  WUkes-Barre,  and  two 
properties  owned  by  Mrs.  Meighan,  in  the 
township  of  Wright.  The  day  after  the  ex- 
ecution of  this  mortgage  and  the  receipt  of 
$1,750  from  Hope  by  the  mortgagors  the 
mortgage  of  $800  on  the  McDade  property 
was  paid  out  of  moneys  so  received.  The 
balance  was  used  In  the  purdiaae  of  the 
property  in  Wright  township  by  Mra  Mei- 
ghan. The  mortgage  for  $1,750  was  subse- 
quently assigned  to  Charles  Hope,  the  amwl- 
lee.  Mrs.  McDade,  up  to  the  time  of  bar 
death,  paid  Interest  on  $800  of  this  mortgage, 
and  M!rs.  Meighan  paid  interest  on  the  l)a]- 
ance  and  $200  of  the  principal.  Mrs.  McDade 
died  September  13,  1915,  and  by  her  will,  ex- 
ecuteid  J^ine  9th  of  the  same  year,  devised 
her  Hazel  street  property  to  her  brother, 
Charles  Kelley.  The  question  before  the 
court  below  was  whether  he  took  it  subject 
to  the  mortgage  of  $1,750,  or  only  to  $800 
thereof,  under  the  following  clause  In  her 
wUl: 

"Seventh.  I  ^t^  devise  and  bequeath  to  my 
brother,  Charles  Kelley  of  North  Main  street, 
Wilkes-Barre,  Pa.,  my  house  and  lot  situated 
at  No.  516  Hazel  avenue,  Wilkes-Barre,  Pa.,  ad- 
joining property  of  Peter  Conlon,  the  same  to 
go  to  and  is  hereby  devised  to  said  Charles  Kel- 
ley, and  his  heirs  forever,  provided  my  aaid 
brother  assume  and  pay  the  mortgage  given  by 
me  and  entered  against  said  property." 

When  Mrs.  McDade  died  there  was  but 

one  mortgage  on  her  Hasel  street  property, 
and  It  was  the  one  given  by  her  and  her  sis- 
ter to  Peter  Hope  for  $1,750,  now  held  by  the 
appellee.  Seven  years  before  her  death  h^ 
mortgage  for  $800  on  that  property  had  been 
paid  and  marked  satisfied  on  the  record.  It 
could  not,  therefore,  have  been  assumed  by 
Charles  Kelley,  the  devisee,  upon  the  death 
of  his  sister,  for  It  no  longer  existed.  Her 
words  In  the  devise  to  him  clearly  and  unmis- 
takably direct  that,  if  he  takes  the  property. 


^s>For  other  cues  see  aame  topic  aod  KEY-NUMBER  to  kll  Key-Kumbered  DicesU  and  ladexea 


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FOX  CHASE  BANK  v.  WAYNE  JUNCTION  TRUST  CO. 


979 


he  must  assume  and  pay  her  mortgage  upoa 
it  What  that  mortgage  was  was  not  open  to 
dispute,  for  at  the  time  the  will  of  the  tes- 
tatrix was  written,  and  up  to  the  day  she 
died,  the  only  mortgage  against  the  property 
was  the  one  given  to  Peter  Hope.  When  this 
appeared  to  the  court,  the  judgment  that  the 
appellant  must  pay  and  assume  it,  if  he 
would  take  the  devlae,  waa  so  manifestly 
correct  that  nothing  ne^  be  added  In  vindi- 
cation of  It  No  fact  in  the  case  stated 
would  have  warranted  any  other  conclusion. 
If  the  testatrix  intended  that  her  brother 
should  pay  but  (800  of  the  mortgage,  she 
could  have  so  stated  In  a  single  line.  Her 
intention  as  expressed  la  her  will  la  oontrol- 
Ung. 
Judgment  affirmed. 

(258  Pa.  2T2) 

FOX  CHASE  BANK  v.  WAYNE  JUNCTION 
TRUST  CO. 

(Supreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  Insttrancb  €=9646(6)— TnxE  Iwstjbancb— 

BXCOVEBT. 

To  recover  on  a  policy  of  title  insurance  con- 
ditioned to  indemnify  and  keep  insured  harmless 
from  loss  sustained  by  reason  of  the  filing  me- 
clianics'  liens,  etc.,  insured  must  establish  a  loss 
covered  by  its  provisions. 

2.  INSTTBANCE  <S=»514  —  TlTLS  IHSIHUIIOB  — 
BBKACH— LlAB  ILITT. 

Under  a  policy  of  title  insurance  conditioned 
to  indemnify  a  mortgagee  from  damage  by  rea- 
son of  the  filing  of  mechanics'  liens,  etc.,  the 
insurer  was  liable  where  such  liens  were  filed 
and  where  a  final  judgment  awarded  the  lienors 
the  fund  which  otherwise  would  have  paid  the 
mortgage. 

8.  Insurance  «=>e61  —  Tnus  Insubarcb  — 
Action — Evidence. 

In  an  action  on  such  policy  opinion  evi- 
dence tending  to  show  that  the  market  value  of 
the  insured's  mortgage  was  less  than  its  face 
value  or  that  the  mortgaged  property  would 
have  been  worth  less  when  finished  than  when 
sold  at  a  sheriff's  sale  was  inadmissible. 
4.  Insurance  «=»648(1)— Tm-B  Insurance— 
Evidence. 

In  such  action,  an  offer  to  show  that  there 
was  an  agreement  among  the  mechanic  lienors 
that  one  should  bid  for  all  without  any  showing 
that  the  purchase  by  such  party  was  not  bona 
fide  or  that  such  agreement  affected  amount  of 
the  bid  was  irrelevant  especially  where  there  was 
no  offer  to  idiow  that  the  insured  mortgagee 
knew  of  snch  agreement 
6.  Inbubance  €=>53a— Title  Insurance. 

Under  a  policy  of  title  insurance  indemnify- 
ing a  mortgagee  from  damages  by  reason  of  the 
filing  of  mechanics'  liens,  etc.,  a  provision  re- 
quinng  the  insured  to  notify  the  insurer  of  any 
action  or  proceeding  founded  upon  any  lien  did 
not  refer  to  the  fflmg  of  such  lien,  but  to  the 
proceedings  for  its  enforcement 
6.  Insurance  ^=9513  —  Titlb  Insurance  — 
Failure  to  Make  Dehense— Liability  roB 
Expenses. 

In  such  case,  the  insurer  declining  to  defend 
against  mechanic^  liens  and  insisting  that  the 
insured  must  do  so  was  liable  for  the  expenses 
thereby  incurred  by  the  insured. 

Appeal  from  Court  of  Common  Fleas,  Phil- 
adelphia County. 


Assumpsit  on  a  policy  of  title  Insurance 
by  the  Fox  Chase  Bank  against  the  Wayne 
Junction  Trust  Company.  Verdict  for  plain- 
tiff for  $10,432.92,  and  Judgment  thereon,  and 
defendant  appeals.     Affirmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKBR,  FRAZEK,  and  WAI/- 
LING,  JJ. 

Wayne  P.  Rambo,  Robert  Malr,  and  Or- 
mond  Rambo,  all  of  Philadelphia,  for  appel- 
lant Abraham  M.  Beitler  and  Oeorge  W. 
Harklns,  Jr.,  both  of  Philadelphia,  for  appel- 
lee. 

WAIiLINO,  J.  This  action  to  (m  a  special 
policy  of  Indemnity  against  liens  and  the  non- 
completion  of  a  building  operation.  In  1911 
Seward  I*  Bowser  undertook  to  build  17 
bouses  on  Duncannon  avenue,  Philadelphia, 
and  placed  a  first  mortgage  of  about  $15,000 
upon  the  land.  At  the  same  time  and  seem- 
ingly for  the  same  Indebtedness  he  also  gave 
mortgages  upon  the  individual  lots.  There- 
after, and  while  the  houses  were  in  process 
of  construction,  he  secured  a  loan  of  $10,000 
from  plaintiff,  for  which  he  gave  his  individ- 
ual note,  and  as  collateral  thereto  a  second 
mortgage  upon  said  proijerty,  and.  as  addi- 
tional security,  defendant  at  the  same  time 
gave  plaintiff  its  special  policy  of  Insurance 
In  $10,000,  conditioned  In  effect  to  Indemnify 
and  keep  harmless  the  said  Fox  Chase  Bank 
(the  Insured)  from  all  lo»s  or  damage  it  might 
sustain  by  reason  only  of  the  filing  of  any 
mechanics  and  municipal  claims  against  or 
the  noncompletion  of  the  buUdings  to  be 
erected  within  six  months  from  the  date 
thereof,  upon  the  property  in  question.  Bow- 
ser failed  financially  and  never  completed  the 
houses  or  any  of  them.  However,  one  house 
was  sold  for  $600  subject  to  the  first  mort- 
gage, and  It  was  released  from  plalntifTs 
mortgage  and  the  amount  credited  on  the 
$10,000  indebtedness,  which  reduced  the  same 
and  also  the  liability  on  the  policy  to  $9,- 
400. 

Mechanics'  liens  amounting  to  about  $22,- 
000  were  filed  against  the  bouses  and  their 
respective  lots.  These  liens  had  priority 
over  plaintitTs  mortgage,  on  which  mortgage 
foreclosure  proceedings  were  instituted  and 
thirteen  of  the  houses  and  lots  sold  by  the 
sheriff  on  September  16,  1912.  On  the  same 
day  the  sheriff  also  sold  the  three  remaining 
houses  by  virtue  of  writs  issued  on  mortgages 
prior  to  the  mechanics'  liens,  of  which  pro- 
ceedings and  sales  defendant  had  due  no- 
tice. Plaintiff  became  the  purchaser  of  six 
of  the  houses  so  sold,  and  the  other  ten  were 
bought  by  a  representative  of  the  mechanics' 
lien  creditors.  The  sales,  made  subject  to 
prior  mortgages,  realized  more  than  sufficient 
to  pay  plaintiff's  claim  In  full,  except  for 
the  mechanics'  liens.  The  amount  was  paid 
to  the  sheriff  and  an  auditor  appointed  to 


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make  dlstrlbntlon.  The  policy  made  it  the 
duty  of  the  Wayne  Junction  Trust  Company, 
at  Its  own  cost,  on  notice  to  defend  the  in- 
sured In  all  actions  and  proceedings  founded 
on  a  claim  of  title  or  lien,  etc.,  insured 
against  Pursuant  to  this,  plaintlft  notified 
defendant  of  the  liens  and  proceedings  before 
the  auditor;  the  trust  company  declined  to 
appear  and  defend  against  such  liens,  but 
warned  plaintiff  to  do  so,  and  the  latter  em- 
ployed counsel,  who  succeeded  in  reducing 
the  amount  of  such  liens  by  about  $10,000. 
According  to  the  auditor's  report,  after  pay- 
ment of  all  valid  liens  and  other  legitimate 
expenses,  a  balance  of  $177.55  was  left, 
which  was  awarded  to  plaintiff's  mortgage. 
The  auditor's  report  was  confirmed  by  the 
proper  court,  and  no  appeal  was  taken  there- 
from. The  plaintiff  brought  this  suit  on  the 
policy  to  recover  the  balance  of  the  Bowser 
claim,  and  also  $750  paid  counsel  for  services 
before  the  auditor.  Plaintiff  limited  its  claim 
to  alleged  loss  on  account  of  the  liens,  and 
made  no  claim  because  of  failure  to  complete 
the  houses.  Among  the  matters  interposed 
in  defense  was  the  allegation  that  the  houses 
were  not  worth  the  amount  they  brought  at 
the  sheriff's  sales.  The  trial  judge  admitted 
evidence  as  to  the  market  value  of  the  six 
houses  bought  by  plaintiff,  but  rejected  that 
offered  as  to  the  other  tm.  The  Jury  found 
for  the  plaintiff  for  the  full  amount  of  the 
claim,  which  implied  a  finding  that  the  six 
houses  were  bought  at  their  fair  value. 
This  ai^eal  is  from  the  Judgment  entered  on 
the  verdict.  We  have  examined  the  36  as- 
signments of  error,  but  find  nothing  that  calls 
for  a  reversal. 

[1-4]  True,  this  being  a  contract  of  indem- 
nity, it  is  incumbent  on  the  Insured  to  estab- 
lish a  lose  covered  by  its  provisions.  Moving 
Picture  Go.  of  America  v.  Scottish  Union  & 
National  Ina  Oo.  of  Edinburgh,  244  Pa.  358, 
90  Atl.  642 ;  Wheeler  v.  Equitable  Trust  Com- 
pany, 221  Pa.  276,  70  Atl.  750;  Central 
Trust  &  Savings  Co.  v.  Hairy  Kraan  Furni- 
ture Co.,  67  Pa.  Super.  Ot  221.  But  defend- 
ant did  undertake  to  indemnify  plaintiff 
against  mechanics'  liens,  and  such  liens  were 
filed,  and  to  them  was  awarded  by  final  Ju- 
dicial decree  the  funds  that  otherwise  would 
have  paid  plaintifTs  claim.  Thereby  it  sus- 
tained the  very  loss  insured  against ;  and,  in 
the  face  of  the  fact  that  such  fund  was  real- 
ized by  bona  fide  Judicial  sales  and  actually 
paid  to  the  sheriff  for  distribution,  it  is  vain 
to  offer  opinion  evidence  tending  to  show 
that  the  market  value  of  plaintifTs  mortgage 
was  less  than  its  face  value,  or  that  the 
houses  in  question  would  have  been  worth 
less  finished  than  they  sold  for  at  the  sheriff's 
sales.  Plaintiff's  loss  was  the  fund  it  failed 
to  receive  because  of  the  Hens,  and  not  what 
someone  might  estimate  the  market  value  of 
the  mortgage  or  property.    It  is  not  neces- 


sary to  estimate  the  value  of  property  when 
the  rights  of  the  parties  have  been  deter- 
mined by  its  actual  value  as  shown  by  a  Judi- 
cial sale.  In  such  case  the  rights  of  the 
parties  are  determined  by  the  amoont  real- 
ized from  the  sale  of  the  property.  Wheeler 
V.  Eiquitable  Trust  Company,  supra.  There 
WB8  no  offer  or  attempt  to  prove  plaintiff 
was  a  party  to  any  fraud  or  collusl<m  at  the 
sheriff's  sales.  In  fact,  as  above  stated,  the 
trial  Judge  admitted  evidence  tending  to  show 
the  value  of  the  houses  bought  by  plaintiff; 
and  the  offer  to  show  that  there  was  an 
agreement  among  the  mechanics'  lien  credi- 
tors that  one  should  bid  for  all  was  irrele- 
vant, as  It  did  not  tend  to  prove  that  the  pur- 
chase by  such  party  was  not  bona  fide  or 
that  such  fact  affected  the  amount  of  the 
bid ;  and,  in  any  event,  there  was  no  offer  to 
show  that  plaintiff  had  knowledge  of  such  al- 
leged agreement 

[S,  •]  In  our  opinion  the  provision  in  the 
policy,  requiring  plaintiff  to  notify  defend- 
ant of  any  action  or  proceeding  founded  up- 
on any  lien,  does  not  refer  to  the  filing  of 
such  lien  but  to  proceedings  taken  for  its  en- 
forcemoit  As  the  Wayne  Junction  Trust 
Company  declined  to  make  defense  against 
the  mechanics'  liens,  but  insisted  that  plain- 
tiff must  do  sok  we  see  no  reason  why  the 
latter  should  not  recover  the  expense  there- 
by Incurred.  Complaint  is  made  as  to  al- 
leged inconsistencies  in  rulings  of  the  trial 
court  If  so  they  do  not  seem  to  refer  to 
any  matter  affecting  the  result  of  the  case, 
or  to  be  material.  As  plaintiff's  claim  is 
still  unpaid  no  question  of  subrogation  has 
arisen.  The  authorities  relied  on  by  appel- 
lant do  not  seem  to  sustain  its  contention. 

'Hie  assignments  of  error  are  overruled, 
and  the  Judgment  is  aflkmed. 


USSPm.  am 
STETLEB  T.  NOBTH  BBANGH  TBANSIT 
CO.  et  al 

(Supreme   Court   of   Pennsylvania.     Hay    22. 
1917.) 

1.  LiANDLOBD  AND  TENANT  €=386(1)— PROVI- 
SION FOB  Renew Arr—CoNSTBUCTioN—"FiBST 
Phiviijcoe." 

Under  a  lease  of  a  park  to  a  transit  com- 
pany contemplating  its  use  and  improvpment  as 
a  place  ot  public  amusement  and  providing  that 
if.  at  its  expiration,  the  lessee  sliould  desire  io 
re-lease  the  premises  for  an  additional  tea 
years,  it  should  have  the  first  privilege  of  re- 
leasing at  a  rental  and  upon  the  terms  therein 
contained,  the  lessee  had  an  absolut>^  rigiit  to 
renew  the  lease  for  another  term,  irrespective  of 
the  wishes  of  the  lessor. 

2.  Landlobd  and  Tknant  ®=386(1)— Renxw- 

AI,   PBOVIBION— CONSTBUOnON. 

Where  the  provisions  of  a  lease  relating  to 
Its  renewal  are  uncertain  the  tenant  is  favored 
and  not  the  landlord,  for  the  reason  that  the 
latter,  having  the  power  of  stipulating  in  his 
own  favor,  has  neglected  to  do  so,  and  that  every 
man's  grant  is  to  be  taken  most  strongly  against 
himBeif. 


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Pa.) 


STETLBR  Y.  NORTH  BRANCH  TRANSIT  (X). 


981 


8.   I/ANDLOED    AND    TENANT   «=>91— RENEWAt 

OF  Leasb— Possession. 
Where  a  lessee  having  the  right  to  renew 
the  lease  for  a  second  term  exercised  its  right, 
alter  giving  the  landlord  reasonable  notice  of  its 
desire  to  do  so,  it  vfaa  entitled  to  retain  posses- 
sion of  the  nroperty. 

Appeal  from  Court  of  Common  Pleas,  Co- 
lombia County. 

laectment  by  Edward  J.  Stetier  against 
the  North  Branch  Transit  Company  and  an- 
other. Fr<Hn  a  Judgment  for  defendants,  on 
case  stated  to  determine  the  construction  of 
a  lease,  plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTBB,  FBAZER,  and  WALr 
UNO,  JJ. 

John  G.  Harman,  of  Bloomsburg,  for  appel- 
lant Fred  Ikeler,  of  Bloomsburg,  for  appel- 
lees. 

POTTER,  J.  This  la  an  appeal  from  a 
Judgment  entered  upon  a  case  stated,  in  an 
action  of  ejectment,  In  which  Edward  J.  Stetr 
ler  Is  plaintiff  and  the  North  Branch  Transit 
Company  and  A.  W.  Duy,  receiver  of  the 
North  Branch  Transit  Company,  are  defend- 
ants. 

[1]  From  the  case  stated.  It  appears  that 
the  transit  company,  as  successor  to  the  les- 
see, was  In  possession  of  a  tract  of  land  In 
Center  township,  Columbia  county,  known  as 
"Columbia  Park."  The  lease  contemplated 
the  use  and  Improvement  of  the  land  as  a 
place  of  entertainment  and  amusement  for 
the  public,  and  It  contained  the  following 
clause: 

"It  is  further  agreed  and  understood  that  if  at 
the  expiration  of  this  lease  the  party  of  the  sec- 
ond part,  its  successors  end  assigns  shall  desire 
to  re-lease  the  said  premises  for  a  further  period 
of  ten  years  it  or  they  shall  have  the  first  priv- 
ilege of  re-leasing  the  same  at  the  rental  and 
upon  the  terms  herein  contained." 

The  controversy  turns  upon  the  construc- 
tion to  be  given  to  the  words  "first  privilege" 
In  the  above  clause.  Counsel  for  plaintiff 
contends  the  words  mean  that  at  the  end  of 
the  ten-year  term,  the  lessee  has  nothing 
more  than  the  first  right  to  re-lease  the  prem- 
ises for  another  term,  provided  the  lessor  was 
willing  at  that  time  to  lease  to  any  one.  The 
court  below,  however,  held  that  it  was  appar- 
ent from  the  provisions  of  the  lease  that  the 
parties  contemplated  the  use  of  the  land  for 
a  park  for  the  entertainment  of  the  public, 
and  that  considerable  expenditure  for  Im- 
provements would  be  necessary.  Under  these 
circumstances,  when  the  lease  was  executed 
the  parties  evidently  felt  that  a  renewal  or 
extension  would  probably  be  desired,  other- 
wise the  clause  in  question  would  not  have 
been  Inserted.  It  was  clearly  Intended  for 
the  benefit  of  the  lessee,  and  It  should  be  so 
construed  as  to  preserve  that  benefit,  tf  it  be 
possible  to  do  so.  But  as  the  court  below 
well  says: 


"If  the  plaintiff's  theory  as  to  the  meaning 
of  the  paragraph  is  to  be  accepted,  it  would,  so 
far  as  the  lessee  is  concerned,  become  wholly 
meaningless,  and  might  as  well  have  been  omit- 
ted." 

[2]  We  are  not  to  suppose  that  the  parties 
Intended  such  a  result  An  Inspection  of  the 
clause  shows  that  If  the  word  "first"  had  not 
been  used  In  connection  with  the  word  "privi- 
lege," the  right  of  the  lessee  to  a  renewal 
could  not  be  questioned.  Did  the  privilege 
of  renewal  then  become  any  the  less  a  privi- 
lege by  being  termed  a  "first"  privilege?  The 
expression  Is  awkward  and  perplexing,  but 
we  think  It  Is  more  consistent  with  the  ex- 
pressed purpose  of  the  lease  to  hold  that  the 
renewal  was  dependent  upon  the  desire  of  the 
lessee,  and  that  the  expression  of  that  desire 
was  to  give  to  It  the  first  privilege  of  re-leas- 
Ing,  that  Is,  priority  of  privilege  over  any  one 
else.  The  thought  was  not  well  expressed, 
but  we  feel  that  the  words  "first  privilege" 
in  this  connection  should  not  be  so  construed 
as  to  nullify  a  valuable  right  In  the  hands 
of  the  lessee,  which,  under  the  paragraph  afi 
a  whole,  was  evidently  Intended  to  be  creat- 
ed. It  was  of  no  possible  use  to  make  provi- 
sion merely  that  one  party  should  enjoy  a 
certain  right,  If  the  other  party  should  con- 
sent thereto.  The  settled  rule  of  construc- 
tion Is  that  any  uncertainty  as  to  the  mean- 
ing of  a  clause  In  a  lease  Is  to  be  determined 
In  favor  of  the  lessee.  The  principle  was 
stated  In  Kaufmann  v.  Ldggett,  209  Pa.  87, 
page  97,  58  AtL  129,  page  132  [67  L.  R,  A.  353, 
103  Am.  St  Rep.  988],  where  we  said: 

"As  a  general  rule,  in  construing  nrovisions  of 
a  lease  relating  to  renewals,  where  there  is  any 
uncertainty,  the  tenant  is  favored,  and  not  the 
landlord,  because  the  latter  having  the  power 
of  stipulating  in  his  own  favor,  has  neglected 
to  do  so,  and  also  upon  the  principle  that  every 
man's  grant  is  to  he  taken  most  strongly  against 
himsclt" 

A  case  Involving  the  same  question  was  be- 
fore the  Superior  Court  in  McDonald  v.  Kar- 
peles,  61  Pa.  Super.  Ct  496.  The  lease  there 
under  construction  was  for  a  term  of  two 
years,  and  provided  that  the  lessee  should 
have  'the  first  privilege  to  rent  the  building 
for  a  further  term  of  three  years."  It  was 
held  that  the  lessee  was  entitled  to  remain  In 
possession,  under  the  same  terms  and  condi- 
tions, for  the  additional  three  years,  If  he  so 
desired  and  gave  due  notice  of  his  Intention. 
Henderson,  J.,  said  61  Pa.  Super.  Ct  498: 

"The  use  of  the  word  'first*  does  not,  we  think, 
change  the  significance  of  the  option.  If  the 
word  were  omitted,  it  is  necessarily  implied 
that  the  tenant  was  to  have  the  first  privilege 
allowed  by  the  clause  in  the  lease,  that  is,  he  had 
the  option  to  the  exclusion  of  everybody  else 
to  rent  the  building  for  the  further  term  of  three 
years.  It  vrill  be  observed,  too,  that  by  the  pro- 
viso he  is  to  exercise  the  privilege  three  months 
before  the  expiration  of  two  years.  What  priv- 
ilege was  he  to  exercise?  Certainly  the  right  to 
the  extended  term.  This  could  hardly  be  called  a 
privilege  to  be  exercised  if  it  were  at  the  op- 
tion of  the  landlord  to  increase  the  rent  to  an 


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amount  vUch  would  be  prohibitive  to  the  ten- 
ant" 

la  the  case  at  bar,  every  contiogency  was 
provided  for,  in  tbe  event  that  the  lessee 
should  desire  an  extension  of  the  lease.  The 
length  of  the  additional  term  was  fixed,  and 
the  amount  of  the  rental  and  the  other  condi- 
tions were  to  be  tbe  same  aa  daring  the  first 
period. 

[3]  We  agree  with  the  conclusion  reached 
by  the  court  below,  that  tbe  lessee  bad  tbe 
right  to  re-lease  tbe  premises  for  a  second 
term  of  tea  years,  and  that  it  exercised  its 
right  after  giving  to  the  owner  of  tbe  land 
reasonable  notice  of  its  desire  to  do  so.  Hav- 
ing complied  with  tbe  terms  providing  for 
tbe  re-leasing  of  tbe  premises,  tbe  defendant 
was  entitled  to  retain  possession  of  tbe  pto^ 
erty. 

The  judgment  is  affirmed. 


(2S8  Pa.in) 

SHATFEK  T.  PENNSYLVANIA  R.  <30. 

(Supreme  Court  of  Pennsylvania.    May  22, 
191T.) 

Rauaoadb  «=>350(13)  —  Ijtjvaj  on  Tback  — 

Ck>NTBIBXJTOBY     NEGUOBNCB    —    QUESTIONS 
rOB  JUBT. 

In  an  action  against  a  railroad  to  recover 
for  the  death  of  plaintiff's  husband  killed  by  a 
train  while  driving  an  automobile  over  a  grade 
crossing,  held,  on  the  evidence,  that  decedent 
stopped  before  crossing  the  track  and  looked 
makes  his  contributory  negligence  a  question  for 
the  jury. 

Appeal  from  Court  of  Common  Pleas, 
(Columbia  County. 

Trespass  by  Lydla  J.  Shaffer  against  the 
Pennsylvania  Railroad  Company,  to  recover 
damages  for  tbe  death  of  her  husband.  Ver- 
dict for  plaintiff  for  $8,S00,  and  judgment 
tbereon,  and  defendant  appeals.    Attlrmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  potter,  FRAZER,  and  WALr 
LINO,  JJ. 

H.  M.  Hinckley,  of  DanviUe,  and  C.  B. 
Waller  and  L.  E.  Waller,  both  of  Wilkes- 
Barre,  for  appellant.  Fred  Ikeier,  of  Blooms- 
burg,  E.  C.  Ammerman  and  C.  A.  Small,  of 
Bloomsburg,  for  appellee. 

POTTER,  J.  One  question  only  is  rais- 
ed by  this  appeal:  Was  the  evidence  of 
contributory  negligence  upon  the  part  of  tbe 
decedent  so  clear  that  tbe  court  should  have 
directed  a  verdict  in  favor  of  the  defendant? 
It  appears  from  the  testimony  that  Isaac 
Shaffer,  the  plaintifTs  husband,  drove  an  au- 
tomobile truck  up  to  a  public  crossing  of  the 
defendant's  railway  and  stopped  with  the 
front  of  the  truck  about  6  feet  distant  from 
the  rail.  His  seat  was  some  7  feet  from  the 
front  of  tbe  truck,  so  that  tlie  point  at  which 
he  was  sitting  was  about  13  feet  from  tbe 
rail,  or  a  little  over  16  feet  from  the 
middle  of  the  track.    These  distances  were 


not  accurate  measurements,  but  were  care- 
ful estimates.  Mr.  Shaffer's  brother,  who 
stood  on  tbe  running  board  of  tbe  machine 
beside  him,  testified  that  at  that  point  he 
had  a  view  up  tbe  track  of  about  300  feet, 
and  that  he  looked,  but  saw  no  train  in  sight. 
The  automobile  was  then  started  ahead,  but, 
before  it  cleared  tbe  track,  it  was  struck  by 
a  locomotive  running  at  high  speed,  and 
Isaac  Shaffer  was  killed.  The  testimony 
showed  that  in  ai^roaching  the  crossing  from 
the  south,  as  did  Mr.  Shaffer,  tbe  view  up 
the  track  was  obstructed  by  tbe  station  build- 
ing, so  that,  at  a  point  15  feet  from  tbe  cen- 
ter of  tbe  track,  there  was  a  view  of  tbe 
track  in  tbe  direction  from  which  the  en- 
gine came,  for  a  distance  of  about  806  feet; 
while,  from  any  point  in  the  highway  less 
than  16  feet  from  the  center  of  the  track,  a 
view  of  over  1,600  feet  could  be  had.  When 
the  automobile  came  to  a  stop,  its  front  aid 
was  advanced  6  or  7  feet  within  the  15-foot 
space,  and  presumably  was  as  near  to  tbe 
rail  as  tbe  driver  of  tbe  car  thought  it  pru- 
dent to  go.  Counsel  for  appellant  do  not 
contend  that  the  automobile  should  have 
been  driven  any  nearer  to  the  track,  but  they 
earnestly  argue  that  Mr.  Shaffer  had  reached 
a  point  where,  by  leaning  forward  in  his  seat, 
be  could  have  very  much  extended  his  view 
of  tbe  trade,  and  could  have  seen  the  on- 
coming engine.  This  contention  is  based  up- 
on close  arithmetical  calculation  as  to  the 
precise  position  in  which  tbe  car  stood,  and 
upon  accurate  measurements  made  after  tbe 
accident.  But  tbe  points  were  not  marked 
upon  the  ground  at  tbe  time,  and  it  does  not 
appear  that  Mr.  Shaffer  knew  tbe  exact  posi- 
tion of  his  car  with  respect  to  the  oilarging 
of  bis  view  up  tbe  track,  and  we  do  not  feel 
that  tbe  trial  judge  could  have  bdd,  as  a 
matter  of  law,  ttaat  Mr.  Shaffer  knew  the 
precise  distance  at  which  tbe  fr<Mit  of  bis  car 
stood  from  the  tra<&,  or  that  by  leaning  tot- 
ward  at  that  instant  he  could  have  had  tbe 
longer  view.  The  evidence  shows  that  he 
came  as  near  to  the  track,  before  stopping 
his  car,  as  was  reasonably  safe.  This  is  not 
questioned  by  counsel  for  aK)eilant.  Accord- 
ing to  tbe  testimony  of  the  brother,  no  en- 
gine was  in  sight  from  that  point,  and  Mr. 
Shaffer  started  his  automobile,  which  bad 
less  than  6  feet  to  move  forward,  before  com- 
ing within  the  line  of  danger  in  case  of  an 
approaching  train.  As  the  automobile  ad- 
vanced, almost  immediately  the  locomotive 
was  discovered,  bearing  down  upon  It,  and  a 
witness  testified  that  Shaffer  then  threw  his 
brakes  on  and  tried  to  stop.  Whether  he  did 
this,  intending  to  back  off,  or  whether  he 
stalled  his  engine  by  applying  his  brakes  too 
suddenly  to  a  slowly  moving  car,  the  result 
was  that  the  automobile  remained  on  the 
track,  and  was  struck  with  terrific  force  by 
the  locomotive.     We  feel  that  the  circum- 


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WILSON  TP.  ▼.  EASTON  TRANSIT  00. 


983 


stances  attending  tbls  aoddent,  and  the  con- 
duct o£  Mr.  Sbaffer  with  reference  to  them, 
afforded  plausible  ground  for  a  variety  of  In- 
ferences, so  that  the  verdict  of  a  Jury  was 
the  only  proper  means  of  determining  wheth- 
er Mr.  Shaffer  exercised  the  degree  of  care 
which  a  reasonable  and  prudent  man  would 
have  exercised  under  the  circumstances. 
The  conclusions  to  be  drawn  from  the  evi- 
dence are  not  free  from  doubt,  and  in  such 
case  the  court  should  not  decide  the  question 
as  one  of  law.  It  may  be  that,  when  the 
driver  stopped  his  automobile  at  a  point 
where  be  liad  a  view  of  bat  little  more  than 
300  feet  up  the  track,  he  should  have  leaned 
forward,  or  gone  forward,  to  get  a  more  ex- 
tended view,  but  we  do  not  feel  that,  under 
the  circumstances,  the  court  would  have  been 
Justified  in  pronouncing  upon  his  conduct  in 
that  respect  as  matter  of  law.  "Where  a 
driver  has  stopped  at  the  usual  place  for 
stopping,  whether  he  should  go  forward  in 
advance  of  his  team  to  a  better  place  to  IooIe 
is  a  question  to  be  determined  by  the  circum- 
stances of  the  particular  case."  Calhoun  v. 
Penna.  E.  B.  Co.,  223  Pa.  208,  300,  72  Atl. 
566,  657.  In  the  same  opinion  there  appears 
a  citation  from  Ely  ▼.  Pittsburgh,  Cincinnati, 
Chicago  &  St.  Louis  R.  R.  Co.,  158  Pa.  233, 
27  Atl.  970,  as  follows: 

"Stopping  is  opposed  to  the  idea  of  negligence, 
and  unless,  notwithstanding  the  stop,  the  whole 
evidence  showi  Degligence  so  clearly  that  no  oth- 
er inference  can  •  *  •  be  drawn  from  it, 
the  coart  cannot  draw  that  inference  as  a  con- 
dnsion  of  law,  bot  [it]  must  send  the  case  to 
the  Jury." 

This  principle  Is  applicable  to  the  present 
case,  and  Justifies  the  action  of  the  court  be- 
low in  submitting  to  the  Jury  the  question  of 
contributory  negligence  upon  the  part  of  the 
decedent 

The  assignments  of  error  are  overruled, 
and  the  Judgment  is  afilrmed. 


(258  F&.  MS) 

WILSON  TP.  v.  EASTON  TRANSIT  CO. 

(Supreme    Court    of    Pennsylvania.      May    22, 
1917.) 

1.  Stbskt  RAiLBOAns  «=>7— Location— Con- 
sent or  Township. 
The  consent  of  a  township  is  necessary  to 
the  constrnction  of  a  street  railway  therein. 

Z,   SiBEET  RaiLROACS  4=340— LoOATION— CON- 
SENT—ESTOPPEI.. 
Where  a  street  railway  in  1914  proceeded 
to  reconstruct  its  right  of  way  in  a  township 
over  a  route  other  than  tliat  dengnated  by  its 
charter,  and  obtained  from  the  Pnblic  Service 
Commission  a  certificate  of  public  convenience, 
and  the  township  had  appeared  and  approved  the 
general  improvement,  except  as  to  certain  de- 
tails aa  to  which  no  appeal  was  taken,  and  the 
railway  thereafter  expended  a  large  amount  on 
the   improvement,   the   township   was   estopped 
from   enjoining   its  completion   on   the   ground 
that  it  had  not  given  its  consent  thereto. 
3.  Street  Railroads  *=»57(6)  —  Location  — 
Consent  of  Township— Laches. 
In  such  case,  where  the  township's  bill  for 
an  injunction   was  not  filed   until   about   two 


jrears  latw,  its  laches  precluded  it  from  obtain- 
ing an  injuncticm. 

4.  Street  Railroads  €=»40— Construction— 
Removai.. 
Township  officers  who  have  knowingly  and 
without  objection  permitted  a  street  railway  to 
be  constructed  in  the  township  cannot  compel 
its  removal. 

Appeal  from  Court  of  Common  Pleas, 
Northampton  County. 

Bill  in  equity  for  an  injunction  by  Wilson 
Township  against  the  Easton  Transit  Com> 
pany.  From  a  decree  on  final  hearing  re- 
fusing an  Injunction,  irialntifl  appeals. 
Ai&rmed. 

Argued  before  MBSTREZAT,  POTTER, 
MOSCaZISKEIR,  FRAZER,  and  WALLINO, 
JJ. 

J.  W.  Fox,  B.  J.  Pox,  and  Albert  P.  Kahn, 
all  of  EastcMi,  for  appellant.  H.  J.  Steele 
and  Asher  Seip,  both  of  Easton,  for  appellee. 

WALLINO,  J.  This  blU  was  filed  to  re- 
strain defendant  from  relocating  its  railway 
in  plaintiff  township.  The  Easton,  Palmer  & 
Betlilehem  Street  Railway  Company  (now 
merged  In  the  defendant  company)  was  char- 
tered in  1897,  and  in  1898  constructed  and 
has  since  operated  a  street  railway  extend- 
ing westerly  from  Easton  through  the  adjoin- 
ing township  of  Palmer  and  thence  to  Bethle- 
hem. The  township  gave  its  written  con- 
sent providing,  inter  alia,  that  the  railway 
company  "may  construct  and  maintain  its 
railway  iq>on  private  land  and  private  rights 
of  way  along  such  portions  of  its  charter 
route  and  al<mg  eadx  portions  of  its  extended 
dianged  and  modified  route  where  said  rail- 
way company  may  deem  it  necessary  and  con- 
venient to  avoid  sharp  carves,  steep  grades, 
irregularities  of  surface,  dangerous  construc- 
tion, dangerous  crossings  or  damage  to  pri- 
vate property."  At  the  place  here  in  ques- 
tion the  railway  was  constructed  on  private 
property,  along  and  immediately  adjoining  a 
public  road,  and  intersecting  the  Easton  & 
Northern  Railroad  by  an  overgrade  crossing. 
In  1913  that  part  of  the  township  adj<dning 
tiM  dty  and  extending  west  to  the  east  line 
of  n  public  highway,  known  as  the  "Glendon 
road,"  was  duly  constituted  a  township  of  the 
first  class,  under  the  name  of  "Wilson  town- 
ship." The  railway  as  originally  constructed 
was  drcnltous  and  the  overgrade  crossing  un- 
sightly and  deoned  unsafe.  In  1914  defend- 
ant, to  shorten  and  Improve  its  line,  took 
steps  to  reccHistruct  the  same  for  a  distance 
of  about  4500  feet,  on  a  new  right  of  way 
over  private  property  and  to  the  north  of  its 
former  location,  a  part  of  the  new  right  of 
way  tielng  in  Wilson  township,  but  not  there 
extending  over  or  upon  any  public  road; 
and  to  be  so  reconstructed  as  to  cross  the 
railroad  by  a  subway  or  undergrade  cross- 
ing, located  440  feet  north  of  the  old  over- 
grade  crossing.  This  improvement  would  t>e 
a  great  advantage  to  the  defendant  tind  the 
public,  and  to  secure  the  same  defendant 


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101  AThAimiO  REPORTER 


(Fa. 


sought  and  obtainecl  from  the  Public  Service 
Commis.5ion  a  certificate  of  public  conveu- 
ience,  permitting  the  undergrade  crossing, 
which  is  intended  to  carry  the  railroad  over 
the  6Iend(Hi  road  and  the  street  car  tracks 
at  the  same  point ;  the  eastern  approach  of 
the  latter  being  In  Wilson  township.  Before 
granting  the  certificate,  the  commission  gave 
a  full  hearing  to  the  parties  in  interest,  at 
which  plaintiff  appeared  and  Joined  with  all 
present  In  a  stipulation  stating,  in  effect, 
that  it  was  desirable  that  the  present  over- 
grade  crossing  should  be  abolished,  and  that 
the  proper  point  of  crossing  the  railroad 
track  was  the  place  mentioned  In  the  petition 
of  the  street  railway  company  as  above  stat- 
ed, and  that  the  only  question  in  controversy 
was  the  method  of  the  proposed  eastern  ap- 
proach. No  appeal  was  taken  from  the  order 
of  the  commission,  made  May  4,  1916,  grant- 
ing the  certificate;  and  defendant  relying 
thereon  expended  over  $40,000  in  the  pur- 
chase of  right  ot  way  and  for  material  and 
work  on  said  improvement,  of  whidi  plain- 
tiff had  knowledge  and  made  no  objection  un- 
til the  filing  of  this  bill,  August  17,  1916,  and 
therein  for  the  first  time  alleged  that  its 
consent  for  defendant's  improvement  bad  not 
been  granted.  The  court  below  awarded  a 
preliminary  Injunction,  but  after  a  full  hear- 
ing entered  a  decree  dissolving  the  same, 
from  which  this  appeal  was  taken. 

[1-3]  The  opinion  of  the  chancellor  em- 
braces requests  of  the  respective  parties  for 
findings  of  law  and  facts,  and  answers  there- 
to, and  also  his  independent  findings  and 
discussion,  and  in  substance  treats  the  case 
as  on  final  hearing.  Els  conclusion  was  that 
plaintiff  had  waived  its  right  to  successfully 
interpose  the  objection  that  the  township 
had  not  formaUy  given  its  consent  to  the  re- 
location of  the  street  railway.  We  agree 
with  that  conclusion.  Plaintiff  deliberately 
stipulated  before  the  Public  Service  Com- 
mission that  its  only  objection  to  defendant's 
change  of  location  was  as  to  the  method  of 
constructing  the  eastern  aiH;>roach  to  the  new 
subway.  In  that  entire  proceeding  nothing 
was  said  about  lack  of  municipal  consent; 
and  thereafter  defendant  was  permitted  to 
incur  large  expenditures  on  the  faith  of  its 
right  to  make  the  improvement,  and  now 
plaintiff's  belated  attempt  to  prevent  the  com- 
pletion of  the  work,  to  the  damage  of  the  de- 
fendant and  the  public,  comes  too  late.  The 
consent  of  a  township  is  necessary  to  the 
construction  of  a  street  railway  therein  and 
was  ben  given  about  20  years  ago.     We 


deem  it  unnecessary  to  dedde  whether  that 
consent  would  justify  sudi  a  deviation  from 
the  original  location  as  is  now  in  question, 
for  In  our  opinion  plaintiff's  laches  and  the 
position  taken  before  the  Public  Service  Com- 
mission constitute  such  an  implied  assent  to 
the  new  location  as  precludes  the  township 
from  obtaining  the  aid  of  a  court  of  equity 
to  prevent  it  In  16  Am.  &  Eng.  Etacy.  of 
Law  (2d  Ed.)  page  S66,  the  rule  is  stated  thus: 
"A  suitor  who  by  ladiea  has  made  it  impos- 
sible for  a  court  to  oijoin  his  adversary  without 
inflicting  great  injurr  upon  him  will  be  left  to 
pursue  nis  ordinary  legal  remedy.  This  rule  Is 
especially  applicable  where  the  object  of  the  in- 
junction is  to  restrain  the  completion  or  use  of 
public  works,  and  where  the  granting  of  the  in- 
junction would  operate  injuriously  to  the  public 
as  well  as  to  the  party  against  whom  the  injunc- 
tion is  sought." 

This  la  quoted  with  approval  by  present 
Chief  Justice  Brown  in  delivering  the  opin- 
ion of  this  court  in  Stewart  Wire  Company 
V.  Lehigh  Coal  &  Navigation  Company,  203 
Pa.  474,  478,  53  Ati.  352. 

[4]  Township  (Acers,  who  have  knowingly 
and  without  objection  permitted  a  street  rail- 
way to  be  constructed  In  their  municipality, 
cannot  compel  its  removal.  Penna.  R.  R. 
Co.  V.  Montgomery  County  Pass.  Ry.,  167  Pa. 
62,  31  Atl.  468,  27  L.  R.  A.  766,  46  Am.  St 
Rep.  669;  Maust  v.  Penna.  &  Maryland 
Street  Ry.  Ca,  219  Pa.  568,  69  Atl.  80.  Plain- 
tiff, at  the  hearing  before  the  Public  Service 
Commission,  having  cmceded  the  propriety 
of  defendant's  change  of  location  and  stipu- 
lated that  the  only  question  was  as  to  the 
method  of  construction  of  the  approadi  to 
tlie  subway,  cannot  In  this  proceeding  set  up 
its  own  alleged  lack  of  consent  to  sndi 
change,  especially  after  defendant  has  acted 
upon  the  faith  of  the  position  taken  by  plain- 
tiff before  the  couunlssian.  One  who  has  as- 
sumed a  i)osltlon  in  a  legal  proceeding,  which 
has  been  acted  upon  by  the  opposing  part;, 
may  not  thereafter  in  another  proceeding  as- 
sume a  different  position  to  the  prejudice  of 
such  party.  Clear  Springs  Water  Co.  v. 
Catasauqua  Borough,  231  Pa.  290,  80  Atl.  666; 
Thomas  t.  Heger,  174  Pa.  345,  34  AtL  56& 
We  have  followed  the  court  below  in  con- 
siderlug  this  case  as  on  final  hearing;  how- 
ever, it  would  have  been  better  practice  had 
coimsel  filed  with  the  chancellor  a  stipula- 
tion to  that  effect,  so  that  a  decree  nisi  might 
have  been  entered  and  the  case  disposed  of 
by  the  court  In  banc. 

The  assignments  of  error  are  overruled, 
and  the  decree  is  affirmed  at  the  costs  of  ap- 
pellant 


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985 


<26S  Fa.  tm 

HARBOtJN  et  aL  t.  GRAHAM  et  al. 

(Soprano  Court  of  Pennsylvania.    May  14, 
1917.) 

1.  Dkeds  «=»208(2)  — Vauditt  — Dhjvebt— 
Evidence. 

On  a  bill  in  equity  to  Itave  deeds  declared 
void  and  for  a  reconveyance,  evidence  held  to 
show  that  there  had  been  no  actual  delivery  of 
the  deeds  to  the  pantees  in  the  grantor's  life- 
time, but  that  they  had  been  retained  in  his 
possession  and  under  bis  control. 

2.  CaNOKIXATIOR      of     InBTKUIIBIITS     «S34  — 

— DE1D8— VAUDrrr. 
Plaintiffs  in  a  bill  in  equity  to  have  deeds 
4}eclared  void  and  for  a  reconveyance  to  them 
as  the  grantor's  heirs  were  entitled  to  such  re- 
lief, where  the  evidence  did  not  show  a  delivery 
of  the  deeds  to  the  grantees  in  the  grantor's  life- 
time. 

Appeal  from  C!oTirt  of  Common  Pleas,  EIrle 
County. 

Bill  In  equity  by  Battle  Harroun,  suing  for 
herself  and  others,  against  William  E.  Gra- 
liam  and  others,  to  have  two  deeds  declared 
void  and  for  a  reconveyance.  From  a  de- 
cree for  plaintiffs,  defendant  Graham  ap- 
peals.   Affirmed. 

Bill  in  equity  to  have  two  deeds  declared 
null  and  void  and  for  a  reconveyance.  The 
facts,  as  found  from  the  evidence,  were  as 
follows; 

1.  Warren  Graham  died  in  the  city  of  Brie 
on  the  12th  day  of  August,  1914,  leaving  sur- 
viving him  as  his  only  heirs  at  law,  William  E. 
Graham,  a  son ;  Rhea  McEldowney  and  Carl 
Campbell,  children  of  Catherine  Campbell, 
daughter  of  the  said  Warren  Graham,  who  died 
prior  to  the  death  of  the  said  Warren  Graham ; 
Hattie  Harroun,  Helen  Knupp,  Joseph  Otto,  and 
George  Otto,  children  of  Elizabeth  Otto,  daugh- 
ter of  the  said  Warren  Graham,  who  died  prior 
to  the  death  of  the  said  Warren  Graham. 

2.  That  on  the  6th  day  of  August,  1914, 
Warren  Graham  signed  and  acknowledged  a 
deed,  conveying  to  William  E.  Graham,  the  land 
in  Waterford  township,  described  in  the  third 
paragraph  of  plaintiffs  bill,  the  consideration 
named  therein  being  $1  and  love  and  affection, 
and  on  the  same  date  signed  and  acknowledged 
another  deed  to  WiUiam  E.  Graham  and  Joseph 
Otto  for  the  lot  in  the  city  of  Erie,  also  describ- 
ed in  the  third  paragraph  of  plaintiffs'  bill,  the 
consideration  named  in  said  deed  being  $1  and 
other  valuable  considerations.  So  far  as  it  ap- 
pears no  consideration  was  paid  for  the  execu- 
tion of  either  of  said  deeds.  Both  of  these  deeds 
were  prepared  by  Louis  B.  Jones,  Esq.,  attor- 
ney for  the  said  Warren  Graham,  and  were  ac- 
knowledged by  the  said  Warren  Graham  before 
the  said  Louis  B.  Jones,  who  was  a  notary  pub- 
lic in  the  presence  of  Mr.  E.  J.  Grace,  who  had 
been  called  in  to  witness  tlie  signature  of  War- 
ren Graham  thereto,  the  said  Louis  B.  Jones 
and  E.  J.  Grace  being  the  subscribing  witnesses 
to  the  said  deeds. 

3.  That  at  the  time  the  deeds  were  executed, 
Warren  Graham,  the  grantor  therein,  was  up- 
wards of  80  years  of  age,  seriously  sick,  con- 
fined to  his  bed,  and  scarcely  able  to  talk,  and 
from  that  time  gradually  grew  worse  until  his 
death  on  the  12th  day  of  August,  1914,  six  days 
afterwards.  That  from  the  time  the  deeds  were 
executed  nntil  he  died,  he  was  not  out  of  the 
room  where  the  deeds  were  executed. 

4.  That  at  the  time  the  deeds  were  executed 


the  said  Warren  Graham  was  of  sound  and  dis- 
posing mind,  memory,  and  understanding. 

6.  'That  neither  the  said  William  E.  Graham, 
nor  Joseph  Otto,  the  ^antees  were  present  at 
the  time  of  the  execution  of  the  said  deeds  and 
knew  nothing  of  the  transaction  until  after  the 
death  of  the  said  Warren  Graham. 

6.  That  there  was  no  actual  delivery  of  the 
deeds  in  question  by  the  grantor  to  the  grantees 
named  therein  in  the  lifetime  of  the  grantor, 
but  th^  were  retained  in  the  possession  and  un- 
der the  control  of  the  grantor. 

7.  That  on  August  18,  1914,  letters  of  ad- 
ministration on  the  estate  of  the  said  Warren 
Graham  were  duly  issued  to  the  said  William 
E.  Graham,  and  on  the  same  date  the  deeds  were 
left  for  record  in  the  recorder's  ofiSce. 

8.  From  the  weight  of  the  evidence  it  app^rs 
that  after  the  said  deeds  had  been  signed  and 
acknowledged,  they  were,  by  direction  of  the 
said  Warren  Graham,  the  grantor,  placed  in  a 
tin  box,  in  which  he  kept  his  papers,  which  was 
at  the  time  on  a  dresser  in  his  bedroom  and 
the  box  was  locked  and  the  key  given  to  his 
housekeeper  Mrs  Bobbins.  That  the  box  re- 
mained in  the  bedroom  in  the  possession  of  the 
said  Warren  Graham  until  after  his  death, 
when  it  was  carried  to  the  home  of  Mrs.  Minnie 
Grace,  and  kept  until  the  day  of  the  funeral, 
when  the  box  was  opened  by  William  E.  Gra- 
ham, in  the  presence  of  Carl  Campbell,  and  the 
two  deeds  in  question  were  then  and  there  found 
in  the  box  and  the  box  was  locked  and  left  in 
the  poBsessicm  of  Mrs.  Grace. 

[1,  2]  The  court  accordingly  found  the  fol- 
lowing conclusions  of  law: 

1.  That  the  deed  of  Warren  Graham  to  Wil- 
liam B.  Graham,  dated  August  6,  1914,  record- 
ed in  Deed  Book  No.  208,  page  248,  and  the 
deed  from  Warren  Graham  to  William  E.  Gra- 
ham and  Joseph  Otto,  dated  August  6,  1914, 
and  recorded  in  Deed  Book  No.  208,  page  249, 
in  the  recorder's  office  of  Erie  county.  Pa.,  are 
null  and  void  for  want  of  delivery. 

2.  That  the  plaintiffs  are  entitled  to  a  decree 
setting  aside  the  said  deeds  so  made  by  War- 
ren Graham  and  ordering  the  said  William  E. 
Graham  to  reconvey  the  land  described  in  the 
deed  recorded  in  Deed  Book  No.  208,  page  248, 
to  the  heirs  at  law  of  Warren  Graham,  deceased, 
and  ordering  the  said  William  E.  Graham  and 
Joseph  Otto  to  reconvey  the  property,  described 
in  the  deed  recorded  in  Deed  Book  No.  208,  page 
249,  to  the  heirs  at  law  of  the  said  Warren 
Graham,  deceased,  and  that  the  defendant  Wil- 
liam E.  Graham  be  ordered  to  pay  the  costs. 

A  decree  was  filed  In  accordance  with  the 
findings,  exceptions  thereto  dismissed,  and 
a  final  decree  entered.  The  defendant  Wil- 
liam E.  Graham  appealed.  Errors  assigned 
were  In  dismissing  exceptions  and  the  decree 
of  the  court. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER  and  WAL- 
LING, JJ. 

John  B.  Brooks  and  Charles  H.  English, 
both  of  Brie,  for  appellant  Ij.  B.  Torry,  of 
Ei'le,  for  appdlees. 

PER  CURIAM.  There  was  sufficient  erl- 
dence  to  warrant  the  learned  chancellor  In 
finding,  as  he  did,  "that  there  was  no  actual 
delivery  of  the  deeds  In  question  by  the 
grantor  to  the  grantees  named  therein  In  the 
lifetime  of  the  grantor,  but  they  were  re- 
tained In  the  possession  and  under  the  con- 


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trol  of  the  grantor."    This  was  the  control- 
llng  question  In  the  case,  and,  having  been 
found  In  £ayor  of  the  plaintiffs,  a  decree  was 
properly  entered  against  the  defendants. 
Decree  affirmed. 


QSSPaLltt) 

FEUSSNER  T.  WUJSES-BABRE  ft  H.  RT. 
C». 

(Supreme   Court   of    PennarWania.      May    22, 
1917.) 

1.  Mabhsb  and  Sebtaitt  4=9286(18)— Aotion 
rOK  iNJUBT  —  Saik  Apflianoxs  Qxtestion 
fob  Jubt. 

In  an  acdon  against  a  railroad  for  the  death 
of  plaintiff's  husband  while  employed  in  shift- 
ing freight  between  cars  by  means  of  a  skid 
with  the  ends  overlapping  the  floors  of  the  cars 
from  3  to  S  inches,  held  on  the  evidence  that 
whether  the  slud  was  a  reasonably  safe  and 
proper  one  for  such  purpose  was  for  the  jury. 

2.  Masteb  awd  Skbvamt  «=»288{2)— Action 
rob  injubt— assuuftioh  of  kisk— ques- 
tion fob  jubt. 

On  evidence  in  such  action  held,  that  wheth- 
er the  risk  of  injury  from  its  use  was  assumed 
by  the  employ^  was  for  the  jury. 
8.  Masteb  and  Sbbvant  «=i>222(o>— Mastsb's 

LlABILITT— ASSUICFTION  OF  UlSK. 

A  servant  is  justified  in  obeying  the  mas- 
ter's  instructions,    unless   the   method   of   per- 
formance  thereby    required    renders    the   work 
obviously  and  imminently  dangerous. 
4.  Masixb  AMD    Sebvant  4=9222(3)— Dkfec- 

TIVB  APPUANCKB— ASSUKPTION  OF  RiBK. 

A  skid  which  bad  been  used  for  a  long  time 
between  cars  without  fastenings  to  hold  its 
ends  to  the  car  floors  could  not  be  said  to  l>e 
BO  imminently  dangerous  as  to  require  an  em- 
plojt  to  set  off  his  judgment  against  that  of 
his  superior  and  refuse  to  obey  an  order  to 
place  and  use  the  skid  in  the  ordinary  way. 

Appeal  from  Conrt  of  Common  Pleas,  Lu- 
seme  County. 

Trespass  by  Margaret  Feussner  against  the 
WUkes-Barre  &  Hazleton  Railway  Company 
to  recover  damages  for  the  death  of  her  hus- 
band. Verdict  for  plaintiff  for  ^,095  and 
judgment  thereon,  and  defendant  appeals. 
Affirmed. 

Argued  before  BROWN,  0.  J.,  and  MES- 
TRE:£AT,  potter,  FRAZER,  and  WAL- 
UNG,  JJ. 

John  H.  Blgelow,  of  Hazleton,  and  John 
T.  Lenahan  and  R.  B.  Sheridan,  both  of 
Wilkes-Barre,  for  appellant  Abram  Salsburg, 
Natlianlel  Jacobs,  and  Mose  H.  Salsburg,  all 
of  Wllkes-Barre,  for  appellee. 


FRAZER,  J.  Defendant  appealed  from  a 
judgment  entered  on  a  verdict  in  favor  of  the 
widow  and  children  of  Adam  Feussner  for 
bis  death  resulting  from  Injuries  sustained 
while  in  defendant's  employ.  At  the  time  of 
the  accident,  Feussner  was  engaged  as  an  ex- 
tra brakeman  on  a  freight  car  operated  over 
defendant's  electric  railway  between  Wllkes- 
Barre  and  Hazleton.  Between  the  terminals 
is  located  a  station  known  as  the  George- ' 


town  Freight  Transfer,  at  which  place  de- 
fendant's tracks  connect  with  tracks  of  the 
New  Jersey  Central  Railroad.  At  this  point 
Is  a  switch  or  siding  for  the  transfer  of 
freight  to  and  from  the  two  lines.  In  receiv- 
ing freight,  the  car  of  the  New  Jersey  Cen- 
tral road  is  at  times  coupled  to  defendant's 
train ;  if,  however,  the  amount  of  freight  for 
transfer  is  not  large  removal  is  made  direct- 
ly from  the  car  of  one  company  to  tliat  of  the 
other.  In  making  transfers  In  the  latter 
manner,  the  cars  to  and  from  which  goods 
are  to  be  removed  are  placed  alongside  of 
each  other  and  a  wooden  platform,  generally 
referred  to  aa  a  "bridge"  or  "skid,"  laid  trom 
the  door  of  one  to  the  door  of  the  other,  over 
which  the  trainmen  either  carry  or  haul  the 
freight  on  a  two-wheeled  hand  truck.  The 
skid  is  made  of  planks  5  feet  long,  30  inches 
wide,  and  an  Inch  and  a  half  thick,  bolted 
together,  and  has  been  in  use  at  Uiat  station 
for  at  least  five  years,  and  is  without  cleats 
or  catches  at  the  ends  to  prevent  slipping. 
When  in  use  for  transfer  puriKises  the  bridge 
is  from  4  to  4%  feet  above  the  ground,  and 
owing  to  the  distance  between  the  cars  as 
they  stand  on  adjoining  tracks  its  ends  over- 
lap the  sides  of  the  cars  to  the  extent  of  3 
to  6  inches,  one  end  resting  about  4  inches 
higher  than  the  other  on  account  of  differ- 
ence in  elevation  of  the  tracks  of  the  two 
companies.  On  the  day  of  the  accident  de- 
fendant's train  was  In  charge  of  the  conduc- 
tor, who  directed  its  operation  and  gave  or- 
ders to  the  brakeman.  Upon  reaching  th» 
Georgetown  transfer  a  central  railroad  car 
containing  freight  to  be  transferred  to  de- 
fendant's car  for  shipment  to  Hazleton  was 
standing  on  the  switch.  The  conductor  hav- 
ing placed  the  bridge  In  position  directed 
Feussner  to  transfer  the  merdiandise  con- 
sisting in  part  of  a  barrel  of  whisky  weigtiing 
about  460  pounds.  The  conductor  assisted 
in  loading  the  barrel  on  the  truck  and  In- 
structed Feussner  to  walk  backwards  over 
the  bridge,  for  the  purpose  of  holding  it  in 
place  by  his  weight  and  prevent  slipping  as 
the  wheels  of  the  truck  came  in  contact  with 
the  end  of  the  planlt.  In  complying  with 
these  instructions  and  while  attempting  to 
pull  the  truck  onto  the  skid  the  end  slipped 
from  the  edge  of  the  car  and  fell  to  the 
ground  carrying  Feussner,  the  truck,  and  the 
wliisky  with  It,  and  inflicting  injuries  upon 
him,  which  subsequently  resulted  In  bis 
deatlL 

The  several  assignments  of  error  raise  the 
same  question,  namely,  whether  the  trial 
judge  erred  in  submitting  the  case  to  the 
jury.  Although  the  statement  of  daim 
diarged  negligence  in  several  respects,  the 
case  finally  resolved  itself  into  the  questions 
whether  the  platform  furnished  deceased  was 
a  reasonably  safe  and  proper  one  for  the  pur- 
pose used,  and  whether  the  risk  was  one  as- 
sumed by  deceased. 


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[1 , 2]  Defendant  arpies  the  evidence  shows 
the  skid  furnished  was  the  usual  and  custom- 
ary appliance  In  use  for  such  work,  and  that 
the  testimony  to  the  contrary  was  a  mere 
sdntlUa,  not  warranting  submission  of  the 
question  of  defendant's  uegUgence  to  the  Ju- 
ry. A  number  of  witnesses  on  behalf  of  de- 
fendant testified  the  skid  was  Identical  with 
those  in  general  use,  and  that  the  use  of 
-cleats  or  other  attachments  to  prevent  slip- 
ping when  being  used  as  In  this  case  was 
not  customary.  One  witness,  however,  stated 
on  cross-examination,  in  answer  to  a  question 
as  to  the  usual  manner  of  securing  skids  to 
prevent  sliding,  that  "there  are  a  dozen  and 
one  different  ways,  but  we  don't  use  any," 
and  admitted  that  around  transfer  stations 
he  bad  seen  skids  with  claws  or  hooks  at- 
tached to  prevent  slipping.  Another  witness 
for  defendant  testified  that  at  Ashley  station, 
on  defendant's  road,  freight  was  transferred 
by  use  of  a  platform  with  a  elaw  or  hook  at^ 
tachments  at  the  ends.  A  witness  for  plain- 
tiff, with  long  experience  In  handling  freight, 
said  in  transferring  freight  frcHn  car  to  car 
the  general  practice  was  to  fasten  the  skids 
at  eadi  end  by  attaching  to  them  either 
spikes  or  cleats.  The  testimony  of  another 
witness,  an  expert,  was  to  the  same  effect, 
and  that  to  use  the  platform  as  was  done  In 
the  present  case  without  Its  being  made  se- 
cure was  dangerous.  True,  this  witness  ad- 
mitted on  cross-examination  to  an  experience 
confined  to  terminal  stations  and  that  he  was 
without  knowledge  of  the  practice  or  custom 
at  way  stations.  On  the  whole  there  was 
sufficient  evidence  bearing  upon  this  question 
to  warrant  submission  to  the  Jury,  and  this 
was  done  in  a  fair  charge  in  whldi  defend- 
ant's rights  were  fully  protected. 

[3]  The  finding  of  the  jury  that  defendant 
faUed  to  furnish  deceased  with  a  reasonably 
safe  appliance  in  accordance  with  the  usual 
and  customary  practice  In  connection  with 
the  transfer  of  freight  from  car  to  car  under 
similar  conditions  constituted  a  finding  of  de- 
fendant's negligence,  and  the  remaining  ques- 
tion is  whether,  notwithstanding  such  evi- 
dence, the  risk  was  an  obvious  and  apparent 


one  assumed  by  plaintiff  as  incident  to  the 
performance  of  his  work.  Deceased  was  at 
the  time  directly  under  and  subject  to  the  or- 
ders of  the  conductor  in  charge  of  the  train, 
who  was  therefore  the  person  to  whose  in- 
structions he  was  bound  to  conform  within 
the  meaning  of  the  act  of  June  10, 1907  (P.  L. 
523) ;  Alnsley  v.  Pittsburgh,  Cincinnati,  Chi- 
cago &  St  Louis  Ry.  Co.,  243  Pa.  437,  00  AtL 
120.  The  skid  was  put  in  place  by  the  con- 
ductor, who  also  assisted  deceased  in  loading 
the  barrel  on  the  hand  truck  and  directed 
him  to  walk  backward  that  his  weight  might 
bold  the  skid  In  place,  and  while  engaged  In 
performing  the  work  assigned  to  him  in  the 
manner  directed  by  his  superior  the  accident 
hapi)ened.  Deceased  was  Justified  in  obeying 
the  instructions  received,  unless  the  method 
of  performance  required  by  the  order  render- 
ed the  work  obviously  and  Imminently  dan- 
gerous. The  rule  in  such  case  was  stated  in 
WllUams  V.  Clark,  204  Pa.  416.  418,  64  Aa 
815,  SIS,  aa  follows: 

"If  the  master  gives  the  servant  to  under- 
stand that  he  doea  not  consider  the  risk  one 
which  a  prudent  person  should  refuse  to  under- 
take, the  servant  has  a  right  to  rely  upon  his 
master's  Judgment,  unless  his  own  is  so  clearly 
opposed  diereto  that,  in  fact,  he  does  not  rely 
upon  his  master's  opinion.  A  servant  is  not 
called  upon  to  set  up  his  own  unaided  judgment 
against  that  of  liis  superiors,  and  he  may  rely 
upon  their  advice  and  still  more  upon  their  or- 
ders, notwithstanding  many  misgivings  of  his 
own.  The  servant's  dependent  and  inferior  po- 
sition is  to  be  taken  into  consideration;  and  if 
the  master  gives  him  positive  orders  to  go  on 
with  the  work,  under  perilous  circumstances, 
the  servant  may  recover  for  an  injury  thus  in- 
curred, if  the  work  was  not  inevitably  and  im^ 
minentiy  dangerous." 

[4]  In  view  of  the  testimony  that  the  bridge 
in  question  had  been  used  for  the  same  pur- 
pose without  fastenings  for  a  considerable 
period  of  time,  it  cannot  be  said  that  its  use 
on  this  occasion  was  so  imminently  danger- 
ous as  to  require  the  servant  to  set  up  his 
Judgment  against  that  of  his  superior  and  re- 
fuse to  obey  the  order  given;  the  question 
was  accordingly  a  proper  one  for  the  Jury. 
Collins  V.  Philadelphia  &  Reading  By.  Co., 
244  Pa.  210,  90  AU.  575. 

The  Judgment  is  affirmed. 


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101  ATLANTIC  REPORTER 


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(2S8  Pa.  293) 

McHALE  y.  TOOLB  et  al. 

(Sapreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  Guts  «=>82(1)— Gut  Causa  Mobtib— Dk- 
uveet— sunpioilbncy  of  evidence. 

On  a  bill  in  equity  to  require  defendant  to 
pay  over  money  claimed  by  her  as  a  gift  causa 
mortis  from  plaintiff's  decedent,  evidence  hetd  to 
show  decedent's  intention  to  retain  control  of 
the  fund  during  her  lifetime,  and  no  complete 
delivery. 

2.  Gifts  «=>59— Gifts  Causa  Mortis— Com- 
leuflation   of  dsath. 

It  is  essential  to  a  gift  causa  mortis  that 
it  should  have  been  made  in  contemplation  of 
death. 

5.  Gifts  <8=>62(1)— Gifts  Causa  Mobtis— Dk- 

LIVEBT. 

It  is  essential  to  a  gift  causa  mortis  that 
there  be  a  complete  delivery  of  the  property  or 
fund  given. 

4.  Gifts  $=»11,  41,  57— Gifts  Inter  Vivos— 
Delivbxt. 
To  constitute  a  valid   pift  a  present  title 
must  vest  in  the  donee,  which  in  the  case  of  a 
gift  inter  vivos  is  irrevocable. 

6.  Girrs  «=>75— Guts  Causa  Mortis— Tttlb 
— Revocatiow. 

To  constitute  a  gift  a  present  title  must 
vest  in  the  donee,  which  in  the  case  of  a  gift 
causa  mortis  is  revocable  only  upon  a  recov- 
ery of  the  donor. 

Appeal  from  Court  of  Common  Pleas,  Ln- 
zeme  County. 

Bill  in  equity  by  Mary  McHale,  adminis- 
tratrix, against  Margaret  Toole  and  another 
to  require  the  payment  of  a  sum  of  money 
alleged  to  be  held  for  the  use  of  plaintiff's 
decedent  From  a  decree  for  plaintiff,  de- 
fendants appeal.    Appeal  dismissed. 

Argued  before  BBOWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZER,  and  WAL- 
LING, JJ. 

William  S.  McLean,  Jr.,  and  William  S. 
McLean,  both  of  Wilkes-Barre,  for  appel- 
lants. John  McGahren  and  R.  B.  Alexander, 
both  of  Wilkes-Barre,  for  appellee. 

POTTER,  J.  [1]  This  is  an  appeal  from 
the  decree  of  the  court  below  awarding  to  the 
plalntifC,  as  administratrix  of  the  estate  of 
Beezle  McHale,  a  sum  of  money  which  had 
been  deix>sited  by  Be^le  McHale  In  the 
Miners'  Savings  Bank  of  Wilkes-Barre,  but 
which,  shortly  prior  to  her  death,  had  been 
transferred  to  an  account  In  the  name  of 
Margaret  Q\>ole.  The  latter  claimed  the 
fund  as  a  gift  causa  mortis.  From  the  facts 
found  by  the  court  below  it  appears  that 
Beezle  McHale  was  in  falling  health  and  de- 
cided to  go  to  a  hospital.  Desiring  to  pro- 
vide for  her  exx)enses  there  from  the  money 
in  bank,  and  contemplating  also  a  gift  to  her 
friend,  she,  on  January  28,  1916,  accompa- 
nied by  Margaret  Toole,  went  to  the  bank 
with  the  bank  book.  She  said  to  the  bank 
officer  that  she  wished  to  have  the  name  of 
Margaret   Toole  added  to  the  account,   so 


that  in  the  future  if  she  wished  to  draw  any 
money  or  send  her  for  any  money  she  would 
have  no  trouble  in  getting  it,  and  she  added 
that  she  wished  the  money  to  go  to  Margaret 
Toole  after  her  death.  She  then  signed  a 
paper  directing  the  name  of  Margaret  Toole 
to  be  added  to  the  savings  account  and  gave 
her  the  same  right  to  withdraw  the  money 
which  she  herself  possessed.  She  did  not, 
however,  assign  the  fund  to  Miss  Toole,  nor 
did  she  relinquish  her  ovni  right  to  withdraw 
the  money.    The  trial  Judge  says: 

"She  realized  that  she  might  never  get  well, 
and  that  she  might  soon  die,  but  we  cannot  find 
that  she  had  any  certain  expectation  of  death 
on  account  of  her  then  existing  illness.  Her 
thought  was  to  make  the  money  accessible  at 
any  time  during  her  life  for  her  own  uses,  par- 
ticularly for  hospital  expenses,  without  the  ne- 
cessity of  personally  presenting  the  l>ook  her- 
self at  the  bank.  If  she  recovered  from  the 
iliness,  the  entire  purpose  of  the  transaction 
would  be  fulfilled  and  no  pecuniary  benefit 
would  accrue  to  her  friend.  If  she  died  in  that 
illness,  it  was  the  intention  that  the  friend 
should  enjoy  whatever  remained  at  the  time 
of  her  death  aftw  deduction  of  her  expenses." 

No  lnteatl<A  was  apparent  that  any  spe- 
dflc  amount  of  money  should  then  be  sur- 
rendered to  Miss  Toole.  After  the  transac- 
tion at  the  bank,  Beezle  McHale  went 
immediately  to  the  hospital,  where  she  re- 
mained until  her  death,  which  occurred 
April  9,  1916.  It  appears,  from  the  evidence, 
that  on  March  31,  1916,  Margaret  Toole  took 
the  passbook  to  the  bank,  and  trans&rFed  to 
a  new  account  in  her  own  name  the  entire 
balance,  then  amounting  to  |1,878.47.  It 
does  not  appear  that  Beezle  McHale  had  any 
knowledge  of  this  transaction. 

[2,3]  The  court  below  held  that,  if  any 
gift  was  made,  it  must  have  been  upon  Janu- 
ary 28,  1916,  and,  with  respect  to  that,  it 
found  that  two  essential  elements  of  a  gift 
causa  mortis  were  lacking,  namely.  It  was 
not  made  in  contemplation  at  the  time  of 
death,  nor  was  there  complete  delivery.  The 
evidence  shows  that  Beezle  McHale  retained 
the  right  to  draw  the  whole  of  the  money,  up 
to  the  time  of  her  death,  and,  that  being  the 
case,  the  title  to  the  fund  remained  in  her. 

[4,  t]  "In  every  valid  gift  a  present  title 
must  vest  in  the  donee,  irrevocable  In  the 
ordinary  case  of  a  gift  inter  vivos,  revocable 
only  upon  the  recovery  of  the  donor  in  gifts 
mortis  causa."  Walsh's  Appeal,  122  Pa.  177. 
187,  15  Atl.  470,  471  (9  Am.  St  Rep.  83,  1  U 
R.  A.  635),  and  cases  there  cited.  The  state- 
ment given  to  the  bank,  tliat  either  might 
draw  the  money,  or  that  the  survivor  might 
draw,  did  not  in  itself  convey  any  title  to  the 
defendant  as  owner  of  the  fund.  There  was 
nothing  to  indicate  that  If  defendant  did 
draw  the  money,  she  could  lawfully  keep  it 
as  her  own,  and,  without  such  authorization, 
no  title  by  way  of  gift  would  pass.  Upon 
the  facts  as  found,  the  conclusions  reached 
by  the  court  below  were  fully  justified. 


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BURGESSES,  ETC.,  ▼.  HXTNTINGDON  WATER  SUPPLY  00. 


989 


The  assignments  of  error  are  ovemiled, 
the  decree  Is  affirmed,  and  this  appeal  Is  dis- 
missed at  the  cost  of  appellant 


(1E8  Pft.  VO) 

TUTHIIJL  et  al.  v.  SWEETINO. 

(Supreme  Court  of  Fennsylvania.    May  14, 
1»1T.) 

1.  Judgment  ®=>743(2)  —  Rm  Adjudicata  — 
DSCBEE  IN  Eqtjitt. 

A  decree  in  a  proceeding  in  equity,  not  ap- 
pealed from,  is  res  adjudicata  in  a  subsequent 
action  of  ejectment  relating  to  the  same  sub- 
ject-matter and  involTing  tl^  same  cause  of  ac- 
tion. 

2.  Judgment  «=3682(1)  —  Rks  Adjudioaia  — 
Deceee  in  Equity, 

In  ejectment  for  an  interest  in  certain  oil 
lands,  where  it  appeared  that  defendant  was  in 
possession  of  the  rights  claimed  by  plaintiffia 
under  an  agreement  with  plaintiffs'  predecessor 
in  title,  a  former  decree  in  equity  for  such  de- 
fendant against  plaintiffs'  predecessor  aa  to  all 
questions  raised  in  the  ejectment  action  was 
concluaive  against  plaintiffs,  so  that  judgment 
was  properly  directed  for  defendant. 

Appeal  from  Court  of  Common  Pleas,  War- 
ren County. 

Ejectment  by  William  E.  Tnthlll  and  oth- 
ers against  George  Sweeting  to  recover  an 
interest  dalmed  by  plaintiffs  in  certain  oil 
lands.  Directed  verdict  for  defendant,  and 
from  a  judgment  dladiarging  plaintiffs'  mie 
for  judgment  n.  o.  v.,  they  appeal.    Affirmed. 

Defendant  had  been  in  possession  under  an 
agreement  between  him  and  plaintiffs'  prede- 
cessor in  titie,  I/udnda  Sweeting.  Plaintiffs' 
predecessor  in  title  bad  undertaken  to  termi- 
nate the  agreement  and  to  oust  defendant 
from  the  premises.  Defendant  thereupon 
filed  a  bill  against  the  said  Ludnda  >Sweetlng, 
praying,  inter  alia,  that  Luclnda  Sweeting  be 
restrained  from  interfering  with  him  in  pro- 
ducing oil  under  the  said  agreement.  In  the 
said  proceeding  the  rights  of  the  parties  un- 
der the  agreement  were  adjudicated.  Plain- 
tiffs sought  to  raise  the  same  questions  that 
had  been  decided  In  the  suit  In  equity. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TBEZAT,  MOSCHZISKER,  FRAZER,  and 
WALLING,  JJ. 

D.  I.  Ball  and  D.  U.  Arlrd,  both  of  Warren, 
for  appellants.  C.  E.  Bordwell  and  A  G. 
Bldred,  both  of  Warren,  for  appellee. 

PER  CURIAM,  [1,  2]  EYom  the  decree  in 
the  equity  proceeding  Instituted  by  the  ap- 
pellee the  defendant  took  no  appeal.  In  this 
proceeding  there  is  the  same  subject-matter. 
Involving  the  same  cause  of  action,  and  the 
correct  conclusion  of  the  court  below  was 
that  the  issue  is  res  adjudicata.  The  judg- 
ment Is  affirmed  on  the  following  from  the 
opinion  overruling  plaintiffs'  motion  for  judg- 
ment n.  o.  v.: 

"We  are  of  the  opinion  that  the  previous  ad- 
judication established  the  fact  that  as  betw^n 
the  parties  to  that  adjudication,  Ludnda  Sweet- 


ing and  George  Sweeting,  the  makers  of  the 
agreement  in  question,  their  rights  had  been 
fixed,  and  the  defendant  had  acquired  a  vested 
title  to  produce  oil  and  have  the  one-half  there- 
of so  long  as  the  said  oil  wells  produced  oil  in 
paying  quantities.  •  *  •  These  parties  by 
their  original  agreement  contemplated  that  the 
agreement  shonld  continue  'so  long  as  the  said 
wells  produce  oil  in  paying  quantities,'  and  that 
the  said  Geor^  Sweeting,  who  is  now  defendant 
here,  should  mvest  money  and  furnish  certain 
fixtures  for  the  property.  The  findings  of  fact 
in  the  former  case  determined  that  money  had 
been  expended  by  him  in  fitting^  up  the  oil  wells 
with  necessary  derricks,  materials  and  machin- 
ery. The  agreement  had  become  executed  and 
irrevocable  in  any  event.  It  is  unnecessary  now 
to  inquire  into  the  amount  or  character  of  the 
investment.  It  was  made  upon  the  faith  of  the 
agreement.  The  former  adjudication  settled 
that,  so  far  as  the  agreement  in  question  is  con- 
cerned, it  had  become  executed  and  irrevocable 
between  the  parties.  If  so  it  is  not  an  agree- 
ment in  our  opinion  that  is  affected  by  the  death 
of  the  grantor." 
Judgment  affirmed. 


(26S  Pa.  309) 
BURGESSES,    ETC..    OP    BOROUGH    OF 
HUNTINGDON   et   al.   v.    HUNTINGDON 
WATER  SUPPLT  CO.  et  al. 

(Snnreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  MUNICIPAI.  COKPOHATIONS  «=»109— VAUDI- 

TY  OF  Obdinance— Transcbiption  IN  Obdi- 

NANCE  Book. 
Where  a  contract  between  a  borough  and 
a  water  company  executed  pursuant  to  an  ordi- 
nance provided  tiiat  after  ten  years  the  borough 
might  purchase  the  company's  plant  at  a  price 
to  be  agreed  upon  or  to  be  fixed  by  a  board  of 
arbitrators  appointed  to  determine  its  value,  the 
company  and  the  borough  each  to  choose  two  ar- 
bitrators and  they  to  choose  a  fifth,  a  borough 
ordinance  reciting  its  election  to  purchase  and 
selecting  two  arbitrators  was  ministerial  and 
valid,  though  not  transcribed  in  the  ordinance 
book. 

2.  Watebs  and  Wateb  Coubses  ®=>183(6)  — 
PuBOHASE  or  Watebwobks  —  Vauditt  of 
Obdinance— Appointment  of  Abbitbatobs 
— Waiveb. 

Where  a  borough  passed  an  ordinance  recit- 
ing the  exercise  of  its  option  to  take  over  a 
water  plant,  and  the  company,  without  objecting 
to  the  ordinance  because  not  transcribed  in  the 
ordinance  book,  submitted  its  selling  price,  as 
requested,  it  in  effect  conceded  that  the  ordi- 
nance legally  authorized  a  demand  for  the  ap- 
pointment of  arbitrators. 

3.  Watebs  and  Wateb  Coubses  «=5>183(5)  — 
Bobough's  Pubchase  of  Watebwobks  — 
Agbeement  as  to  Price. 

Where  a  contract  executed  pursuant  to  an 
ordinance  gave  a  trarough  the  option  to  take 
over  the  plant  of  a  water  company  at  a  valua- 
tion to  be  agreed  npon  by  the  parties  or  to  be 
fixed  by  arbitrators,  and  a  borough  ordinance 
recited  an  intention  to  take  over  the  plant  and 
requested  the  company  to  name  its  selling  price, 
which  was  refused,  the  borough  had  maae  an 
effort  to  agree  as  to  the  price  of  the  plant,  and 
was  under  no  duty  to  continue  negotiations  to 
that  end. 

4.  Watebs  and  Water  Coxtbses  «=>183(5)— 
Bobough's  Purchase  of  Waterworks  — 
Agreement  as  to  Price— Evidence. 

Where  the  finding  that  such  parties  to  such 
contract  had  not  been  able  to  agree  was  justified 
by  the  evidence,  the  borough's  suit  in  equity  to 


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101  ATLANTIC  BEPORTBR 


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require  the  water  company  to  appoint  arbitra- 
tors to  fix  the  price  was  properly  panted. 
6.  Waters  and  Watkb  Courses  «=»183(5)  — 
BoBoncu's  PuBCHASE  OP  Wateb  Plant  — 
Consent  of  Public  Sebtice  Commission. 
Where  the  borough  which  had  not  elected 
under  such  contract  to  take  over  the  plant,  but 
had  only  appointed  arbitrators  to  fix  its  value, 
there  was  no  merit  in  a  contention  that  the 
company  was  not  required  to  appoint  arbitrators 
until  the  borouRh  had  obtained  the  consent  of 
the  Public  Service  Commission  to  acquire  the 
plant 

Moschzisker,  J.,  dissenting. 

Appeal  from  Conrt  of  ComiiKni  Pleas,  Hun- 
tin£^on  County. 

Proceeding  by  the  Burgesses  and  Town 
Council  of  the  Borough  of  Huntingdon,  In 
tbe  County  of  Huntingdon,  and  others, 
against  the  Huntingdon  Water  Supply  Com- 
pany and  others.  From  a  decree  In  equity 
directing  the  defendant  company  to  amx>lnt 
arbitrators,  It  appeals.     Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TEEZAT,  BTOSOHZISKEK,  PBAZER,  and 
WALLING,  JJ. 

J<An  O.  Johnson,  of  WUkes-Barre,  and 
Samuel  I.  Spyker  and  John  D.  Dorrls,  both 
of  Huntingdon,  for  appellant.  W.  M.  Hen- 
derson, H.  W.  Petrlkln,  and  H.  H.  Walte,  all 
of  Huntingdon,  for  appellees. 

MESTBEZAT,  J.  This  is  an  aK)eaI  by 
the  defendant,  the  Huntingdon  Water  Supply 
Company,  from  a  decree  directing  It  to  se- 
lect two  arbitrators  to  Join  with  two  arbitra- 
tors selected  by  the  plaintiff,  the  borough  of 
Huntingdon,  in  the  selection  of  a  fifth  arbi- 
trator for  the  purpose  of  appraising  the  value 
of  defendant's  water  plant  with  a  view  to 
Its  purchase  by  the  borough  as  provide  by 
the  ordinance  and  contract  of  May  6,  1885. 

Peter  Herdlc  and  certain  other  persons 
with  whom  he  was  associated,  thereafter 
to  be  incorporated  as  the  Huntingdon  Wa- 
ter Company,  Ltd.,  desired  to  construct  In 
the  borough  of  Huntingdon  waterworks  for 
the  purpose  of  sui^lylng  the  borough  and 
Its  tnbabitanta  with  water  and,  on  May  6, 
1885,  the  borough  passed  an  ordinance  con- 
senting to  and  authorizing  Heitilc  and  his 
associates  to  Install  and  maintain  a  water 
plant  and  system  upon  the  conditions  set 
forth  In  the  contract  in  writing  made  on  the 
same  day  between  Herdlc  and  the  borough. 
The  ordinance  and  contract  contained  the  fol- 
lowing provision : 

"At  the  end  of  ten  years  the  borough  shall 
have  the  riKht  to  purchase  the  waterworks,  with 
all  their  franchises,  rights,  and  property,  at  a 
price  that  may  be  mutually  agreed  upon.  Should 
the  parties  fail  to  agree  on  a  price  and  terms,  a 
board  of  arbitrators  shall  be  appointed  to  de- 
termine the  value  of  the  waterworks,  and  on  the 
value  being  declared,  the  borough  shall  pay  the 
same,  but  the  borough  may  decline  to  make  the 
purchase  after  the  value  shall  have  been  declar- 
ed, provided  she  shall  and  will  pay  the  expense 
of  said  arbitration.  If  no  sale  be  consummated 
the  contract  and  right  and  franchise  shall  con- ' 


tinue  to  the  said  Peter  Herdlc,  Wa  heirs  and  as- 
signs, or  to  said  company,  its  successors  or 
assigns,  until  final  purchase,  but  the  right  to  buy 
Jhall  mure  to  the  borough  every  ten  years,  but 
the  borough  shall  in  every  case  give  twelve 
months  notice  of  their  intention  to  purchase. 
1-  u^f*  °f  sale,  the  borough  shall  assnme  any 
liability  of  the  company  for  waterworks  then 
existing,  and  the  same  shall  be  deducted  from 
the  pnce,  as  part  payment  thereof.  The  pro- 
posed corporation,  or  Herdic,  bis  heirs  or  as- 
signs, if  unincorporated,  and  the  borough  shall 
each  choose  two  of  the  aforesaid  arbitrators,  and 
ttiese  four  shaU  choose  a  fifth,  all  to  be  nonresi- 
dents of  the  county  of  Huntingdon,  and  disin- 
terested persons,  two  of  whom  shall  be  well 
known  and  reputable  hydraulic  engineers;" 

The  rights  of  Peter  Herdlc  under  the  above 
contract  were  Immediately  assigned  to  the 
Huntingdon  Water  Company,  Ltd.,  which 
constructed  and  operated  the  plant  until  Oc- 
tober 16,  1900,  when  Its  rights  were  assigned 
to  the  Huntingdon  Water  SuK>ly  Company, 
the  defendant. 

The  borough  council  passed  a  resolution 
September  2,  1913,  directing  that  defendant 
be  notified  that  the  borough  desired  to  ex- 
ercise the  right  to  purdiase,  given  It  under 
the  contract  of  1885,  at  the  md  of  the  ten- 
year  period,  expiring  May  5,  1916»  and  sudi 
notice  was  served  on  defendant  on  October 
26,  1913.    On  April  6,  1916,  the  councU  pen- 
ed  an  ordinance,  approved  April  8,  1915,  and 
transcribed  Into  the  ordinance  book  May  10, 
1916,  authorising  the  president  and  secretary 
of  the  council  to  enter  Into  a  contract  to 
purchase  defendant's  plant  and  system  at 
such  price  as  might  be  mutually  agreed  up- 
on between  them,  provided  such  purchase 
price  should  be  approved  by  the  council,  and 
provided   further   that  If  a   purchase  price 
should  not  be  agreed  upon  and  approved  by 
the  council,  then  the  council  should  select  two 
arbitrators  for  the  purpose  of  at^raislng  and 
valuing  the  plant  according  to  the  contract 
of  May  6,  1885,  and  authorizing  the  service 
of  notice   upon   the  defendant   cominny   of 
such  selection,  and  requiring  defendant  with- 
in ten  days  thereafter  to  select  Its  two  arbi- 
trators and  certify  the  selection  of  the  same 
to  the  council  with  designation  of  the  time  of 
meeting  of  the   four  arbitrators  to  choose 
the  fifth  arbitrator.    The  ordinance  also  pro- 
vided the  means  for  payment  to  the  water 
company  of  the  purchase  price  In  case  the 
borough  elected  to  purchase  Its  plant  and 
system.    Pursuant  to  this  ordinance,  the  bor- 
ough, April  10,  1915,  made  a  demand  upon 
the  defendant  to  name  a  price  for  which  It 
would  be  willing  to  sell  Its  plant    The  sec- 
retary of  the  defendant  company  replied  to 
this  demand  that,  by  a  resolution  of  the  di- 
rectors of  the  company,  the  latter  would  sell 
to   the  borough  Its   franchises,   rights,  and 
property   for  $220,000  In   cash.     This  offer 
was  declined  and  rejected  by  the  unanimous 
vote  of  the  borough  conndl.     The  council 
then,   April  24,   1915,   adopted  a   resolution 
selecting  two  arbitrators,  as  provided  in  the 
contract  of  1885,  and  notified  the  defendant 


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BUKOESSES,  ETG,  t.  HUNTIKODOK  WATER  SUPPLY  CO. 


991 


to  select  two  otbera  within  ten  days  and 
designate  a  time  of  meeting  of  the  four  to 
make  a  selection  of  the  fifth.  The  defendant 
refused  to  appoint  arbitrators,  and  thereup- 
on the  plaintiff  filed  this  bill  which  resulted 
in  a  decree  against  the  defendant  company, 
from  which  this  appeal  was  taken. 

[1]  The  several  assignments  of  error  are 
considered  by  the  appellant  under  the  follow- 
ing propositions,  as  the  questions  Involved 
In  the  case:  The  ordinance  of  April  8,  1015, 
was  not  a  valid  ordinance  on  April  26,  1915, 
the  date  when  the  borough  requested  the  de- 
fendant water  company  to  appoint  appral»- 
ers;  the  borough  made  no  efFort  to  agree 
with  the  water  company  uiwn  a  price  at 
which  the  water  plant  should  be  purchased ; 
and  the  court  did  not  have  Jurisdiction  In  a 
proceeding  to  take  over  a  water  plant  or 
system  before  the  approval  of  the  Public 
Service  Commission  had  been  obtained. 

It  will  be  observed  that  the  ordinance  of 
April  8^  1915,  bad  not  been  transcribed  on 
April  26,  1915,  when  the  borough  demanded 
that  the  defendant  ai^ralnt  Its  arbitrators 
under  the  ordinance  and  agreement  of  May 
6,  1885.  It  Is  therefore  contended  that  for 
this  reason  the  action  of  the  borough  In 
making  the  demand  was  without  authority. 
This  contention  overlooks  the  fact  that  the 
demand  for  the  appointment  of  arbitrators 
was  only  one  of  the  preliminary  steps  to  be 
taken  by  the  borough  In  securing  such  Infor- 
mation and  data  as  were  necessary  in  order 
to  enable  the  borough  council  to  finally  de- 
cide whether  It  desired  to  purchase  or  not 
to  purchase  the  defendant's  plant.  It  did 
not  necessarily  Involve  taking  over  the  plant 
by  the  borough ;  that  was  a  matter  for  fur- 
ther consideration  and  determination  by  the 
borough  authorities.  The  borough  bad  pre- 
viously given  the  twelve  months'  notice  of 
its  Intention  to  purchase,  as  required  by  the 
contract  and  ordinance  of  May  5,  1885.  The 
parties,  as  fonnd  by  the  court,  failed  to 
agree  upon  a  price  and  terms  for  the  pur- 
chase of  the  plant,  and,  as  required  by  that 
ordinance  and  contract,  the  next  preliminary 
step  to  the  purchase  of  the  plant  was  the 
giving  of  notice  for  the  appointment  of  arbi- 
trators. It  is  not  clear  that  any  ordinance 
or  resolution  of  council  was  necessary  to  au- 
thorize the  president  and  secretary  of  the 
council  to  make  this  demand.  It  was  au- 
thorized by  tbe  ordinance  and  contract  of 
1885,  and,  at  the  expiration  of  the  ten-year 
period,  the  proper  borough  officials  in  giving 
the  notice  would  be  simply  carrying  out  the 
authority  conferred  by  the  franchise  ordi- 
nance and  contract  of  1885.  If,  however,  an 
ordinance  or  resolution  was  required  as  fur- 
ther authority  by  the  borough  officials  to 
make  tbe  demand  of  the  defendant  for  the  ap- 
pointment of  its  arbitrators,  such  ordinance 
or  resolution  would  be  tbe  exercise  of  a  min- 
isterial and  not  a  legislative  or  governmental 
function  on  the  part  of  the  council,  and 
hence  the  ordinance  or  resolution  would  not 


be  required  to  be  transcribed  In  tbe  ordi- 
nance book  to  give  it  validity  in  authorizing 
tbe  demand  for  the  appointment  of  the  arbi- 
trators. Scfaenck,  Howard  &  Galla^er  v. 
Burgess,  Town  Council,  Borough  of  Olyphant 
&  Massey,  181  Pa.  191,  37  Atl.  258;  Selt- 
zlnger  v.  Borough  of  Tamaqua  &  Edison 
Electric  Illuminating  Co.  of  Tamaqua,  187 
Pa.  539,  41  Atl.  454 ;  Kolb  r.  Tamaqua  Bor- 
ough, 218  Pa.  126,  67  AtL  44.  The  ordinance 
and  contract  of  1885  specifically  provide  the 
several  steps  to  be  taken  before  the  purchase 
of  the  water  plant  by  the  borough,  and  there- 
fore fully  authorized  at  least  the  preliminary 
steps  to  be  taken  prior  to  the  determination 
by  the  borough  to  take  over  the  water  plant 
The  demand  for  the  appointment  of  arbitra- 
tors on  the  part  of  the  defendant  was  simply 
a  ministerial  act,  authorized  by  the  original 
franchise  ordinance  and  contract,  and  audi 
demand  might  have  been  ordered  to  be  made 
by  a  motion  or  resolution  which,  under  the 
settled  law  of  this  state,  is  not  required  to 
be  transcribed  Into  the  ordinance  book.  It 
is  true  that  the  ordinance  of  April  8,  1915, 
after  authorizing  the  service  of  notice  on  the 
water  company  requiring  It  to  choose  arbi- 
trators, as  provided  in  the  contract  of  188S, 
empowers  the  president  and  secretary  of  the 
council  to  enter  into  an  agreement  for  the 
purchase  of  the  defendant's  plant  in  the 
event  the  council  elected  to  make  such  pur- 
chase, and  also  designates  tbe  manner  in 
which  the  money  for  paying  the  price  should 
be  provided.  But  we  are  not  concerned  here 
with  any  pert  of  the  ordinance  except  that 
which  authorizes  notice  requiring  the  defend- 
ant to  choose  its  arUtrators.  The  legality 
of  the  ordinance  for  any  other  purpose  may 
be  tested  when  the  question  arises  in  an 
effort  to  enforce  the  ordinance  for  the  other 
purposes  for  which  it  was  enacted.  It  may, 
however,  be  suggested  In  passing  that  the 
ordinance  has  been  transcribed  and  adver- 
tised, and  is  therefore  now  effective  for  leg- 
islative purposes  under  section  3  of  Act  May 
23,  1893  (P.  L.  U3). 

[2]  It  may  well  be  doubted  whether  the  de- 
fendant by  its  conduct  did  not  waive  its  right 
to  attack  the  validity  of  the  ordinance  so  far 
as  it  relates  to  the  demand  for  the  appoint- 
ment of  arbitrators.  After  the  enactment 
of  the  ordinance^  a  request  was  made  upon 
the  defendant  for  a  price  at  which  it  would 
sell  its  plant  to  the  borough.  The  defendant 
company  did  not  then  make  any  objection  to 
tbe  ordinance,  but  its  board  of  directors  met 
and  passed  a  resolution  fixing  the  price  at 
which  it  would  sell  its  plant,  and  this  price 
was  communicated  to  the  borough.  This 
action  on  the  part  of  the  defendant  was  in 
compliance  with  the  stipulations  of  the  con- 
tract of  1885,  and,  in  effect,  conceded  that 
the  demand  for  the  appointment  of  arbitra- 
tors had  been  legally  authorized  by  the  ordi- 
nance of  April  8, 1915. 

[3,4]  The  learned  counsel  for  the  defend- 
ant company  contend  that  tbe  borough  made 


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101  ATLANTIO  REFORTBB 


(P». 


Qo  effort  to  agree  with  Ihe  company  upon  a 
price  at  which  the  water  plant  should  be  pur- 
chased, as  required  by  the  contract  of  May 
5,  1885.  The  court  found  that  "the  plaintiff 
and  defendant  have  not  been  able  to  agree 
upon  a  sum  or  price  at  which  the  defendant 
would  be  willing  to  sell,  and  at  which  the 
plalntifT  would  be  willing  to  purchase  the  de- 
fendant's plant  and  system."  We  think  this 
finding  is  sustained  by  the  evidence.  Pursu- 
ant to  a  resolution  of  the  borough  council, 
the  defendant  was  requested  to  name  "a  price 
for  which  you  are  willing  to  sell  the  Hun- 
tingdon Water  Supply  Company's  plant,  sys- 
tem and  property,  to  the  said  borough  of  Hun- 
tingdon." In  reply  to  this  request,  the  defend- 
ant company,  by  proper  corporate  action,  of- 
fered to  seU  Its  plant  for  $220,000,  and  so 
notified  the  borough  council.  The  offer  was 
unanimously  rejected  by  the  councU.  No 
further  effort  was  made  by  either  party  to 
agree  upon  a  price  for  the  water  plant.  It 
will  be  observed  that  both  parties  were  actr 
ing  In  their  corporate  capacity,  the  request 
being  made  by  the  borough  council,  and  the 
price  for  the  plant  fixed  by  the  defendant's 
board  of  directors.  The  contract  of  1885  re- 
quiring the  parties  to  make  an  attempt  to 
agree  upon  a  price  does  not  stipulate  as  to 
the  extent  to  which  the  negotiations  shall  be 
made  to  fix  the  price.  We  do  not  see  that 
the  borough  was  required  to  continue  further 
negotiations  and  suggest  a  price  after  it  had 
received  notice  of  the  price  fixed  by  the  de- 
fendant's board  of  directors.  The  borough 
was  justified  In  concluding  that  the  defend- 
ant would  not  sell  its  plant  for  a  less  sum 
than  that  already  named,  and  that  further 
negotiations  would  be  fruitless.  It  is  Idle  to 
expect  the  two  corporate  bodies  to  act  as  In- 
dividuals might  act  In  negotiating  for  the 
purchase  and  sale  of  the  plant.  There  Is 
nothing  In  the  record  to  show  that  had  the 
negotiations  proceeded  on  the  part  of  the 
borough,  the  defendant  would  have  accepted 
any  less  sum  than  that  named  In  the  reso- 
lution passed  by  its  board  of  directors  and 
communicated  to  and  promptly  rejected  by 
the  borough.  If,  however,  the  defendant 
company  was  willing  to  sell  its  plant  for  a 
less  sum  than  it  had  already  named,  it  should 
have  communicated  the  fact  to  the  borough. 
The  duty  to  continue  further  negotiations  In 
an  attempt  to  fix  a  price  for  the  water  plant 
was  as  obligatory  upon  the  defendant  as  upon 
the  borough.  Snodgrass  v.  Oavit,  28  Pa.  221. 
The  obligation  was  mutual,  and.  If  the  de- 
fendant company  had  concluded  to  accept  a 
less  sum  than  that  named  in  Its  offer,  It 


should  have  communicated  the  fact  to  the  bor- 
ough, and,  falling,  to  do  so,  it  la  not  in  a 
posltton  to  successfully  dalm  that  the  bor- 
ough made  no  effort  to  agree  with  the  wat«r 
company  upon  a  price  at  which  the  latter 
would  sell  its  plant.  The  fact  that  the  de- 
fendant company  did  not  receive  notice  from 
the  borough  that  the  price  suggested  was  ac- 
ceptable to  the  latter  was  notice  to  the  de- 
fendant that  the  price  had  been  rejected,  and 
afforded  the  defendant  an  opportunity.  If  it 
desired,  to  name  another  price  at  which  It 
would  sell  Its  plant. 

[I]  The  third  and  last  question  raised  by 
the  defendant  la  as  to  the  right  of  the  bor- 
ough to  enforce  the  provisions  of  the  ordi- 
nance and  contract  of  1886  without  first  ap- 
plying to,  and  obtaining  the  consent  of,  the 
Public  Service  Commission  under  Act  July 
26,  1913  (P.  Im  1374).  The  learned  court  be- 
low held  that  the  borough  was  not  required 
to  secure  the  approval  by  the  commission  ot 
its  proposed  purchase  until  after  the  value 
of  the  plant  and  system  was  ascertained  and 
it  elected  to  purchase  the  same,  according  to 
the  provisions  of  the  ordinance  and  agree- 
ment of  May  6,  188S.  This  is  clearly  right. 
This  la  not  a  proceeding  to  condemn  or  ac- 
quire the  water  plant ;  the  purpose  Is  simply 
to  have  legally  determined  the  value  of  the 
plant  so  that  the  borough  can  decide  whether 
or  not  It  will  purchase.  The  Public  Service 
Commission,  therefore,  has  no  interest  in 
these  proceedings,  nor  is  Jurisdiction  given  it 
to  interfere  in  any  way  with  them.  If  the 
borough  had  elected  to  purchase  and  was 
proceeding,  under  the  contract,  to  acquire  the 
water  plant,  the  question  whether  It  should 
first  secure  the  approval  of  the  commission 
would  require  adjudication. 

The  appellant  has  cited  certain  authorities 
to  sustain  its  contention  that  the  borough 
must  obtain  the  approval  of  the  Public  Serv- 
ice Commission  before  it  takes  the  prelimi- 
nary steps,  under  its  contract,  to  determine 
whether  or  not  it  will  purchase  the  defend- 
ant's water  plant.  It  is  sufficient  to  say  that 
they  have  no  application  whatever  to  the 
facts  of  this  case.  As  already  pointed  out, 
the  borough  has  not  yet  elected  to  purchase 
the  plant,  nor  was  this  proceeding  instituted 
for  the  puriMse  of  acquiring  It.  After  the 
value  of  the  plant  has  been  ascertained,  the 
borough  will  then  determine  what  it  will 
do  in  the  premises. 

The  decree  ia  affirmed. 

Mr.  Justice  MOSCHZISKEB  dlssentb 


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MABKEE  ▼.  BSTBURN 


993 


(KS  Pa.  MS) 

EKIB  GODNTI  POMONA  GRANGE,  NO.  4, 
et  «L  T.  WALES  et  ai. 

(Sopreme   Coort    of   Pennsylvania.     May   14, 
191T.) 

Tktjsts  «=s>37S(1)— CoNSTBronoH— Accouwt- 
rNQ. 
On  a  bill  in  eqnity,  filed  by  a  county  p-ange 
to  have  defendants  declared  trusteea  of  a  certain 
fund  and  for  an  accounting,  where  the  chancel- 
lor found  on  sufficient  evidence  that  the  defend- 
ants had  accepted  the  fund  for  the  benefit  of 
county  granges,  as  they  should  decide,  and  that 
it  was  not  a  inft  to  defendants,  the  relief  was 
properly  granted. 

Appeal  tiom  Coart  of  Common  Pleas,  Erie 
County. 

Bill  In  eqnlty  by  the  Erie  County  Pomona 
Grange,  No.  4,  and  others,  agralnst  A.  L. 
Wales  and  others,  to  have  defendants  declar- 
ed trustees  and  for  an  accounting.  From  a 
decree  for  plaintltfs,  defaidants  appeaL  Af- 
firmed. 

Argued  before  MESTREZAT,  POTTER, 
MOSOHZISKBR,  FRAZEB,  and  WAI^ 
LING,  JJ. 

T.  A.  Lamb,  of  Erie,  for  appellanta  Frank. 
J.  Thomas,  of  Meadvllle,  and  Joseirti  M. 
Forces  of  Erie^  for  appelleea 

PER  CURIAM.  This  was  a  blU  filed  by 
plaintiffs  to  have  the  Keystone  Co-opera- 
tive Association,  Limited,  declared  a  trustee 
for  the  plaintiffs  for  a  certain  fund  deliver- 
ed to  the  association  by  Joseph  C.  Sibley,  and 
that  the  association  be  required  to  account 
for  the  same.  The  learned  diancellor  found, 
on  sufficient  evidence: 

"That  the  defendant  the  Keystone  Co-opera- 
tive Association,  Limited,  in  accepting  the  fund 
that  was  thereafter  turned  over  to  it  by  the 
•aid  Joseph  G.  Sibley,  accepted  the  same  subject 
to  the  condition  that  the  said  fund  was  to  be 
used  by  the  defendant  for  the  benefit  of  the 
granges  and  grange  organizations  of  Erie  and 
Crawford  connties,  as  Uiose  granges  should  de- 
cide, was  to  be  used  only  for  the  benefit  of  those 
granges,  and  that  it  was  in  no  sense  a  gift  or 
donation  to  the  members  of  the  defendant  as- 
sociation, or  to  the  defendant  associatioii  itselt" 

This  finding  was  decisive  of  the  question 
at  issue,  and  justified  the  decree  which  was 
entereJd  against  the  defendants. 

Decree  affirmed. 


(2S8  Pa.  277) 

MARKEB  T.  RETBURN. 

(Supreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  LiioTATioif  OF  Actions  4s»1S&  —  Sblt- 
Serving  I)koi.aka,tion— Bntries  in  Books 
OF  Accoum'. 
Where  plaintiff's  books  of  original  entries, 
showing  a  credit  on  an  indebtedness  sufficient  to 
toll  the  statute  of  limitations,  were  not  proved 
and  oCFered  in  evidence,  the  allowance  of  a  cred- 
it in  a  statement  of  claim  against  an  estate  was 
a  mere  self-serving  declaration,  and  incompetent 
against  the  estate. 


2.  LncRATioR  OF  Actions  «s>197@)  —  Ao- 

KNOWLEDGMIWT— BVIDENClt. 

In  an  action  against  an  administrator  for 
an  indebtedness  incurred  more  than  six  years 
before  suit,  wherein  plaintiff  contended  that  the 
statute  of  limitations  had  been  tolled  by  promise 
to  pay  made  within  six  years,  evidence  held  in- 
sufficient to  identify  the  debt  on  which  an  al- 
leged payment  was  made,  so  aa  to  toll  the  stat- 
ute. 

3.  Ldotation  of  Actions  «s>148(1>— Toix- 
INQ  OF  Statute— Evidence. 

To  toll  the  statute  of  limitations,  there  must 
be  a  clear  and  unequivocal  acknowledgment  of 
the  debt,  and  a  specification  of  the  amount,  or  a 
reference  to  something  by  which  the  amount  can 
be  definitely  ascertainea,  coupled  with  an  ex- 
press or  implied  promise  to  pay. 

Brown,  C.  J.,  dissenting. 

Appeal  from  Court  of  Common  Pleas',  Phil- 
adelphia County. 

Assumpsit  by  William  T.  Markee  against 
William  S.  Reyburn,  administrator  of  the 
estate  of  John  E.  Beybum,  deceased,  for  the 
maintenance  and  boarding  of  horses  and  for 
money  expended  by  plaintiff  for  defendant's 
benetit.  Verdict  for  defendant  by  direction  of 
the  court,  and  judgment  thereon,  and  plain- 
tiff appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  STEW- 
ART, MOSCHZISKER,  FRAZBR,  and  WAL- 
LING, JJ. 

Joseph  8.  Goodbread,  of  Philadelphia,  for 
appellant  Frank  A.  Moorahead  and  Howard 
Burtt,  both  of  Philadelphia,  for  appellee. 

FRAZBR,  J.  Plaintiff's  action  against  the 
administrator  of  the  estate  of  John  E.  Rey- 
burn, deceased,  is  to  recover  the  sum  of  $4,- 
036.16,  with  interest,  being  the  balance  claim- 
ed to  be  due  on  a  book  account  extending 
over  a  period  of  years  from  1903  to  190S 
for  maintenance  and  boarding  of  horses  and 
money  expended  by  plaintiff  for  defendant's 
benefit  The  copy  of  the  account  attached  to 
the  amended  statement  of  claim  showed  sev- 
eral credits,  none  of  which  was  within  six 
years  previous  to  the  beginning  of  suit  on 
July  14,  1914  Xhe  original  statement  of 
claim  showed  a  credit  of  $700  on  July  16, 
1908,  and  defendant  believing  no  defense 
existed  to  the  claim,  omitted  filing  an  afiida- 
ylt  of  defense,  and  permitted  plaintiff  to  take 
judgment  Subsequently  defendant  discover- 
ed the  payment  entered  as  of  July  16,  1908, 
was  in  fact  made  In  1907,  Instead  of  1908, 
and  thereupon  took  a  rale  to  show  cause  why 
the  judgment  should  not  be  opened  which 
was  later  made  absolute.  Plaintiff,  however, 
was  permitted  to  file  an  amended  statement, 
setting  up  a  payment  on  account  under  date 
of  December  30,  1911,  and  an  acknowledg- 
m»it  of  the  debt  and  promise  to  pay  made 
December  11,  1908.  Defendant  In  his  affi- 
davit of  defense  d«iled  the  alleged  payment 
on  account  and  pleaded  the  statute  of  lim- 
itations. At  the  trial  of  the  case  platntiff 
offered  in  evidence  the  statemtot  of  claim  ad- 


iFor  otber  cMes  ue  game  topic  and  KSX-NUMBBR  in  all  Ker-Mumbered  Dlgutz  and  Indexes 


101  A.-63 


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994 


101  ATI^NTIC  REPOKXER 


(fa. 


mltting  receipt  of  $100  on  account,  bnt  gave 
no  further  evidence  concerning  the  payment 
The  trial  ;^udge  held  the  evidence  of  acknowl- 
edgment of  the  debt  Insufficient  to  toll  the 
statute  of  limitations  and  directed  a  verdict 
for  defendant.  A  motion  by  plaintiff  for  judg- 
ment non  obstante  veredicto  was  overruled, 
and  this  appeal  followed. 

[1,J]  Plain tUF  suggests  the  statement  of- 
fered in  evidence  coutaluiug  credit  for  $100 
paid  in  1911  was  in  itself  sufficient  to  take  the 
case  to  the  Jury.  In  answer  to  this  conten- 
tion it  Is  sufficient  to  say  the  payment  was 
denied,  and  in  absence  of  actual  proof  on 
plaintifTs  part  the  mere  offer  of  the  state- 
ment of  claim  was  without  probative  effect 
The  books  of  original  entries,  showing  the 
credit,  were  not  proved  and  offered  in  evi- 
dence within  the  rules  goveniing  the  admis- 
sion of  such  entries,  and  in  absence  of  such 
proof  the  allowance  of  credit  in  the  state- 
ment was  a  mere  self-serving  declaration 
made  by  the  party  in  his  personal  books  and 
not  competent  evidence  against  the  debtor. 
Hottle  V.  Weaver,  206  Pa.  8T,  55  Atl.  838; 
Murphy  v.  McMullln,  219  Pa.  506,  69  Atl.  70. 

The  evidence  relied  upon  as  an  acknowl- 
edgment of  the  debt  is  the  testimony  of  a 
witness,  who,  at  the  request  of  plaintiff,  call- 
ed npoD  Beybum  at  bis  oflftce  in  City  Hall 
on  December  11,  1908,  when  the  following 
conversation  took  place: 

"I  told  him  what  I  wanted.  I  said  Mr.  Mar- 
kee  wanted  to  go  West  on  Saturday  to  St  Louis, 
and  he  needed  money.  And  he  got  the  state- 
ment out  of  the  drawer.  Q.  What  statement? 
A.  The  statement  he  had  got  the  Ist  of  the 
month.  Mr.  Markee  had  sent  him  a  statement 
•  •  •  Q.  Did  you  see  it?  A.  Well.  I  saw 
Mm  pull  it  out  and  look  at  it  I  did  not  par- 
ticularly notice  it.  Q.  What  did  he  say?  A. 
Well,  he  said,  'Tell  Bill  to  come  in  on  Saturday, 
and  I  will  pay  him  part  of  that'  or  something 
to  that  effect  Q.  Do  you  know  the  amount  that 
was  due  by  that  statement?  A.  I  couldn't  tell 
without  looking  at  the  books.  It  was  thirty- 
nine  hundred  and  something." 

On  being  further  questioned  as  to  exactly 
what  was  said  at  the  interview  the  witness 
testified: 

"Well,  it  was  in  the  mayor's  office  that  I  saw 
him,  and  I  had  a  statement  in  my  pocket;  but 
I  didn't  have  to  use  that,  for  he  pulled  his  out 
of  the  drawer.  And  I  explained  about  Mr. 
Markee  wanting  to  go  West  on  Saturday.  This 
was  on  Friday  that  I  was  there.  And  he  said, 
'Well,  you  tell  Bill  the  claim  is  all  right,  and 
I  will  pay.'  I  went  back  and  told  Mr.  Markee 
that  I  supposed  he  was  going  to  pay  him  Satui^ 
day  morning.    So  he  went  to  see  him." 

On  cross-examination  tbe  witness  further 

testified: 

"Q.  Who  made  np  this  statement  of  account 
that  you  say  you  took  to  Mayor  Reybnm's 
office?  A.  Well,  I  just  took  a  statement  from 
Mir.  Markee.  Q.  Did  he  go  over  that  state- 
ment? A.  lie  took  it  out  of  tlie  drawer  and 
compared  it  with  mine.  They  were  just  the 
same.  But  he  knew  exactly  what  the  statement 
was,  for  I  bad  seen  it  before  two  or  three  times." 


Tbe  witness  did  not  present  the  statement 
he  had  in  his  pocket,  nor  did  he  see  the  one 
Reybom  took  from  his  desk  drawer.  Tbe 
only  way  the  witness  was  able  to  fix  the 
amount  definitely  was  by  referring  to  the 
books,  and  relying  upon  his  inference  that 
tbe  paper  taken  from  tbe  drawer  was  tbe 
one  sent  by  plaintifll  to  Beybum,  and  that  it 
contained  the  items  and  total  amount  shown 
by  the  memoranda  in  the  pocket  of  the  wit- 
ness. While  the  witness  subsequently  tes- 
tified Reybum  "already  had  the  statement" 
from  plaintiff,  which  he  took  from  the  drawer 
"and  compared  it  with  mine.  They  were 
Just  the  same.  But  he  knew  exactly  what  the 
statement  was,  for  I  bad  seen  it  before  two 
or  three  times" — this  testimony,  when  viewed 
in  the  light  of  his  previous  recital  of  what 
was  said  at  that  meeting,  could  not  be  ac- 
c^ted  as  proof  that  the  two  papers  were 
actually  physically  compared.  The  witness 
was  apparently  attempting  to  testify  to  his 
personal  mental  conclusions,  as  well  as  those 
of  Mayor  Reybum.  On  the  whole,  the  evi- 
dence of  Identification  and  acknowledgment 
of  the  debt  is  not  so  clear  and  unequivocal  as 
we  have  repeatedly  held  necessary  to  toll  the 
statute  of  limitations.  The  principles  gov- 
erning such  proof  were  stated  in  the  recent 
case  of  Manlatakls's  Estate,  101  Atl.  920. 
The  facts  in  this  case,  so  far  as  the  iden- 
tification of  the  debt  is  concerned,  are  no 
stronger  than  those  in  Lowrey  v.  Robinson. 
Adm'r,  141  Pa.  189,  195,  21  Atl.  513.  The 
language  there  used,  particularly  applicable 
here,  is  as  follows: 

"It  is  noticeable  that  there  is  not  in  the  con- 
versation detailed  by  Townsend  any  admission 
by  Robinson  that  he  was  indebted  to  I^owrey  for 
borrowed  money  in  any  sum  whatever,  nor  any 
promise  to  pay  him  any  sum  at  any  time.  The 
bill  which  was  presented  to  Robinson  was  not 
exhibited  on  the  trial,  and  no  attempt  was  made 
to  account  for  its  nonproduction.  Tbe  item* 
of  it,  showing  dates  and  amounts,  were  not 
given.  The  inferences  of  counsel,  though  as- 
sented to  by  the  witness,  are  not  a  satisfac- 
tory snbstltute  for  the  declarations  of  the  party 
whose  estate  it  is  sought  to  charge,  nor  is  the 
statement  of  the  witness  that  'the  bill  said  $40* 
a  sufficient  identification  of  the  alleged  loan." 

[3]  To  toll  tbe  statute  of  limitations,  tbei« 
must  be  a  clear  and  unequivocal  acknowl- 
edgment of  the  debt,  and  a  specification  <^ 
the  amount  or  a  reference  to  something  by 
which  the  amount  can  be  definitely  ascertain- 
ed, coupled  with  an  express  or  implied  prom- 
ise to  pay.  Ward  v.  Jack,  172  Pa.  416.  33 
Atl.  57T,  51  Am.  St  Rep.  744.  These  re- 
quirements will  be  strictly  enforced.  Shaef- 
fer  V.  Hoffman  et  al.,  113  Pa.  1,  4  Atl.  39; 
Shaffer's  Estate,  228  Pa.  36,  76  Atl.  716.  The 
evidence  In  this  case,  at  least  so  fttr  as  the 
identification  of  the  debt  and  its  amount  Is 
concerned,  does  not  meet  these  requirements. 

The  Judgment  is  affirmed. 

BROWN,  C.  X,  dissenta. 


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BiaGNER  Y.  PBNNSTLVANIA  R.  CO. 


995 


(258  Pa.  WD 

BEIGNER  T.  PBNNSTLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania.    Mar  22, 
1917.) 

1.  RAnsOADS  «s»327(2)— ACOIDKNISATCBOBS- 
IROB— CONTBIBITTOBT  NCOLIOENCX. 

One  going  in  front  of  a  moving  train  which 
he  has  bad  ample  opportnnity  to  see  and  avoid 
is  gnilty  of  contributory  negligence  as  a  mat- 
ter of  law. 

2.  RA.ILBOADS  «=3346(5)— Accidents  AT  Cboss- 
iNos  —  CoNiBiBinosr  Nkglioencb  —  Pbk- 

8UMPTI0N& 

When  one  i*  killed  by  a  train,  the  law  pre- 
sumes that  before  going  upon  the  track  he  did 
all  that  due  care  for  his  safety  would  suggest, 
and  that  be  stopped,  looked  and  listennl  as 
the  law  requires,  which  presumption  gives  way 
before  admitted  facts  with  which  it  is  irreconcil- 
able. 

8.  BAiutOAOS  «=9327(8)— AooioBNTS  AT  Oboss- 

INOB— CONTBIBUTORT  NBOLIOENCE. 

One  driving  a  buggy  over  a  grade  crossing 
was  guilty  of  contributory  negligence  when,  aft- 
er stopping,  looking,  and  listening  when  about 
90  feet  from  the  track,  he  did  not  stop  before 
reaching  the  track  where  he  could  have  seen  an 
approaching  train  for  a  distance  of  three-quar- 
ters of  a  mile. 

4,  Railboaos  «=»S27(8)— Accidents  at  Cboss- 

INOB— CONTBIBUTOBT    NeOLIOENCB. 

The  dntv  of  one  about  to  cross  a  railroad 
track  at  grade  is  not  always  confined  to  stopping 
and  listening  for  the  approach  of  a  train,  bat  he 
must  stop  at  a  proper  place,  and,  on  proceeding, 
should  continue  to  look  and  to  observe  the  pre- 
caotion»  which  the  dangers  of  the  situation  re- 
qnire,  and  should  stop  again  if  there  is  another 
place  nearer  the  track  from  which  he  can  better 
aee  whether  there  ia  danger. 

Appeal  frtxu  Court  of  Conunon  Pleas,  Ches- 
ter County. 

Trespass  by  Dmma  K.  Reigner  against  the 
Pennsylvania  Railroad  Company  to  recover 
damages  for  the  death  of  plaintiff  husband. 
From  an  order  refusing  to  take  off  a  compul- 
sory  nonsuit,   plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  C  J.,  and  MES- 
TREZAT,  STEWART,  MOSCHZISKER,  and 
WALUNG,  JJ. 

Truman  D.  Wade,  of  West  Chester,  for  ap- 
pellant A.  M.  Holding,  of  West  Chester,  for 
appellee. 

STEWART,  J.  (1]  We  have  here  again 
to  repeat  what  we  have  so  often  had  occasion 
to  say,  that  when  one  goes  in  front  of  a  mov- 
ing train  of  cars,  which  he  has  had  ample 
opportunity  to  see  and  avoid,  he  is  guilty  of 
contributory  negligence  as  a  matter  of  law. 

[2]  True  it  is  that,  when  one  upon  a  rail- 
road track  is  run  down  and  killed  by  a  pass- 
ing train,  the  law  will  presume  that  before 
entering  upon  the  track  he  did  all  that  pm- 
d«>ce  for  his  safety  would  suggest,  and  what 
the  law  requires  in  all  snch  cases — that  he 
stopped,  looked,  and  listened.  But  this  pre- 
sumption, like  every  other,  gives  way  before 
admitted  facts  with  which  it  is  irreconcilable. 

[3]  The  facts  in  the  present  case,  as  we 
derive  them  from  the  evidence  adduced  on 


the  part  of  the  plaintiff,  are  these:  Plain- 
tiff's husband  was  driving  in  an  open  buggy 
on  the  afternoon  of  December  29,  1915.  As 
ha  approached  a  grade  crossing  of  the  de- 
fendant's company's  tracks,  four  in  number, 
and  which  he  had  been  accustomed  to  cross 
and  recioss  dally  for  at  least  six  weeks  pri6r 
to  the  accident,  he  stopped  at  a  point  90  feet 
distant  from  the  nearest  rail  on  the  track  he 
would  encounter  first  in  any  attempt  to  cross 
over.  At  this  point,  had  he  looked,  he  could 
have  seen  up  the  track  on  which  the  train 
that  struck  bim  was  running,  that  is,  the 
third  track,  660  feet  At  a  point  76  feet  be- 
yond and  25  feet  from  the  nearest  track  he 
had  a  clear  view  of  the  trad:  along  which 
the  train  was  approaching  for  1,550  feet  Just 
before  entering  upon  the  first  track,  had  he 
looked  ta  the  direction  of  the  approaching 
train,  he  could  have  seen  for  a  distance  of 
three-quarters  of  a  mile.  Despite  these  op- 
portunities thus  afforded  him  to  avoid  the 
danger  incident  to  the  crossing,  when  upon 
the  third  track,  in  an  attempt  to  cross  over, 
he  was  struck  by  the  engine  of  a  passing 
train  and  instantly  killed.  Witnesses  were 
called  on  behalf  of  the  plaintiff  who  testified 
that  as  the  train  approached  the  crossing  no 
signal  of  its  approach  was  given,  either  by 
whistle,  bell,  or  otherwise,  and  for  failure 
in  this  regard  the  effort  was  to  charge  the 
defendant  with  responsibility  for  the  acci- 
dent Into  the  merits  of  this  contention  we 
need  not  enter.  The  appeal  is  from  a  Judg- 
ment of  nonsuit  entered  on  the  ground,  as 
stated  by  the  learned  trial  Judge  in  refusing 
to  take  it  off,  that  it  is  incomprehensible 
how  the  plaintiff's  husband  could  have  lost 
his  life  had  he  made  even  a  most  casual 
glance  at  any  point  after  he  started  his 
horse  from  the  90-foot  stopping  point.  This 
view  meets  with  our  entire  concurrence. 

[4]  It  only  remains  to  add  that  the  fact  of 
his  having  stopped  at  a  point  90  feet  from 
the  tracks  before  entering  upon  the  crossing 
did  not  relieve  him  from  the  duty  of  again 
stopping  and  looking  before  he  attempted  to 
cross.  We  have  repeatedly  held  that  the 
whole  duty  of  one  about  to  cross  the  tracks 
of  a  steam  road  at  grade  is  not  In  all  cases 
confined  to  his  stopping  and  listening  for  the 
approach  of  a  train.  He  must  stop  at  a 
proper  place,  and,  when  he  proceeds,  he 
should  continue  to  look  and  to  observe  the 
precautions  which  the  dangers  of  the  situa- 
tion require.  He  should  stop  again  if  there 
is  another  place  nearer  the  tracks  from  which 
be  can  better  discern  whether  there  is  dan- 
ger. Muckinhaupt  r.  Brie  R.  R.  Co.,  196  Pa. 
213,  46  All.  364. 

"The  duty  to  be  observant  continues  so  long 
as  danger  threatens.  If  between  •  •  • 
where  the  party  stops,  and  the  tracks  of  a  rail- 
road, the  situation  affords  opportunity  to  dis- 
cover an  approaching  train,  and  injury  results 
because  of  disregard  of  such  opportunity,  the 
original  act  of  stopping  cannot  operate  to  re- 
lieve the  injured   party  of  contributory  negli- 


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996 


101  ATIANTIO  KBPOBTEB 


(Pa. 


genee."    Walsb  t.  Penoa.  K.  S.  Ca,  222  Pa. 
162,  165,  70  Aa  1068,  1089. 

The  nonsuit  was  properly  ordered,  and  fbe 
Jndgment  Is  affirmed. 


(268  Pa.  tU) 

In  r«  PENNSYLVANIA  GAS  Ca 

Appeal  of  CITY  OF  ERIE. 

(Supreme  Court  of  PenniylTania.    May  14, 
1917.) 

1.  Gas  «=»11— Inspection  at  Gas  Conduits 
— Recovbbt  of  Costs. 

The  city  of  Erie,  a  dty  <rf  the  third  class, 
may  collect  the  coat  of  reasonable  inspection 
and  reflation  of  gas  conduits  in  the  public 
streets,  but  the  amount  so  collected  must  be  lim- 
ited to  the  necessary  cost  of  such  inspection,  and 
cannot  be  in  fact  a  tax  for  revenue  for  general 
purposes. 

2.  Gas  €=s>11— Municipai,  Inspkition  Feb— 

RXDUCTION   BX  COUBT  —  CONSTITUTIONALJTY 

OF  Statute. 
Act  July  26,  1913  (P.  I*  1871,  {  1),  anthor- 
iaing  common  pleas  court  to  reduce  the  amount 
of  a  municipal  license  fee  for  inspection  of  gas 
company's  conduits  when  the  amount  of  such 
fee  IS  noreasonable,  is  constitutional. 

3.  Gas  «=»11— Municipal  Inspection  Fee- 
Reduction  BY  Court— Statute. 

Under  Act  April  17,  1905  (P.  L.  183),  as 
amended  by  Act  July  26,  1913  (P.  U  1371),  the 
court  may  reduce  the  license  fee  fixed  in  a  mu- 
nicipal ordinance  for  the  inspection  of  gas  con- 
duits where  they  are  unreasonably  excessive, 
and  may  fix  such  license  fee  as  the  evidence 
shows  will  properly  compensate  the  municipality 
for  necessary  inspection. 

4.  Gas  <=>11  —  iNSFEcrioif  —  Obdinanci  — 
Akount  of  License  Fee. 

Where  an  ordinance  of  a  city  of  the  third 
class  required  an  annual  inspection  of  gas  con- 
duits in  public  streets  and  imposed  an  annual 
license  fee  of  $30  per  mile  of  pipe,  and  it  ap- 
peared that  no  regular  inspection  was  made  by 
the  city,  other  than  that  made  by  the  iKilice, 
fire,  engineering,  and  street  departments  as  inci- 
dental to  their  other  duties,  and  that  no  extra  ex- 
penses were  incurred  for  such  inspection,  and 
that  the  cost  of  such  inspection  did  not  exceed 
$7.50  per  mile,  the  amount  fixed  by  the  ordi- 
nance was  excessive,  and  the  city  would  not  be 
permitted  to  collect  more  than  $7.50  per  mile  for 
inspection. 

Appeal  from  C!onrt  of  Common  Pleas,  Erie 
C<ounty. 

Petition  by  the  Pennsylvania  Gas  Company 
tor  the  reduction  of  a  license  fee  charged  by 
the  CUj  of  Brie  for  the  Insiiection  and  regu- 
lation of  conduits.  From  a  decree  reducing 
the  inspection  license  fee,  the  Olty  of  Brie 
appeals.   Affirmed. 

The  following  Is  oplnlwi  of  Roeslter,  P.  J., 
In  the  court  of  common  pleas: 

The  proceedings  in  this  case  were  had  nnder 
the  act  of  April  17, 1906  (P.  L.  183),  as  amended 
by  the  act  of  Jnly  26,  1913  (P.  L.  1371),  to 
decide  a  dispute  between  the  petitioner,  the 
Pennsylvania  Gas  Company,  and  the  respondent, 
the  city  of  ESrie,  aa  to  the  reasonableness  of  a 
license  fee  charged  by  the  respondent  against 
the  petitioner.  The  case  was  heard  upon  peti- 
tion, answer,  and  testimony. 

The  facts  are  found  as  follows: 

First.  That  the  petitioner  is  a  corporation  ex- 
isting under  the  laws  of  the  state  of  Pennsyl- 
Tania,  engaged  in  the  production  and  transporta- 


tion of  natural  gas ;  supplies  natural  gas  to  the 
public  in  the  ei^  of  Erie;  occupies  the  streets 
of  the  city  of  Erie  by  virtue  of  an  ordinance  ap- 
proved \&rch  8,  1886,  which  ordinance  was  of- 
fered in  evidence. 

Second.  That  the  petitioner  owns,  maintains, 
and  operates  in  and  upon  the  streets,  lanes,  al- 
leys, and  other  highways  of  the  city  of  Erie 
120.22  miles  of  pipe  and  conduits ;  that  16  or  18 
miles  of  this  pipe  is  high-pressure  pipe,  and  the 
rest  low-pressure. 

Third.  That  the  reapondent,  the  city  of  Brie, 
is  a  city  of  the  third  class. 

Fourth.  That  on  the  6th  day  of  April,  1908, 
the  respondent,  the  city  of  Erie,  enacted  Ordi- 
nance BUI  N«.  2817,  of  which  the  foUowing  is 
a  copy: 

"An  ordinance  providing  for  inspection  by  the 
police  department  of  the  city  of  Erie,  of  all 
pipes  and  mains  of  manufactured  gas  com- 
panies, natural  gas  o(mipanies,  water  compa- 
nies, steam  heating  and  other  companies 
maintaining  or  operating  such  pipes  and 
mains  in  the  streets,  avenues  and  alleys  of  the 
city  of  Erie;  imposing  an  annual  license  fee 
for  each  mile  of  snch  pipea  and  mains;  and 
providing  a  penalty  for  the  violation  of  the 
provisions  hereol 

"Be  it  enacted  by  the  sdect  and  common  coun- 
cils of  the  city  of  Brie: 

"Section  1.  That  all  of  the  pipes  and  mains 
of  each  and  every  manufactured  gas  company, 
natural  gas  company,  water  company,  steam 
heating  company  and  other  comiuuiiea  maintain- 
ing or  operating  pipes  and  mains  in  the  streets, 
avenues  and  alleys  of  the  city  of  Brie,  shall  b« 
inq>ected  annuiUly,  or  aa  often  aa  may  be  re- 
quired for  proper  and  adequate  supervision  and 
inspection^  by  the  police  department  of  this  city. 
The  said  inspection  shall  be  carried  on  as  afore- 
said by  said  department,  to  insure  the  proper 
and  safe  maintenance  and  operation  of  all  such 
pipes  and  mains  in  the  streets,  etc.,  aforesaid. 
Sec  2.  That  each  mile  of  such  pipes  or 
mains,  laid  or  maintained  in  the  streets,  ave- 
nues and  alleys,  within  the  limits  of  the  city  of 
Erie,  shall  be  liable  to  an  annnwl  license  fee  of 
thirty  ($30)  dollars. 

"Sec.  3.  The  said  license  fee  shall  be  paid  by 
each  of  the  said  companies  to  the  treasurer  of 
the  city  of  Erie,  on  or  before  the  first  day  of 
June  of  each  year,  hereafter,  and  said  officer 
shall  issue  his  receipt  therefor,  showing  the 
number  of  pipes  and  mains  for  which  the  license 
has  been  paid. 

"Sec.  4.  Any  person,  firm,  corporation  or  orai- 
pany,  who  shall  violate  any  of  die  provisions  of 
this  ordinance,  shall  be  subject  to  a  penalty  of 
one  hundred  ($100)  dollars  for  each  and  evoy 
offense,  to  be  sued  for  and  recovered  in  the  man- 
ner now  provided  by  law  for  the  recovery  of  like 
penalties. 

"Sec.  6.  That  all  ordinances,  or  parts  thereof, 
conflicting  herewith,  be  and  the  same  are  hereby 
repealed. 

"Approved  by  the  mayw  April  6, 1908." 

E'iftfa.  That  the  petitioner  has  continued  to 
use,  maintain,  and  operate  the  said  lines  of  pipe 
and  conduit  in  and  upon  the  streets,  etc.,  of 
the  city  of  Erie,  but  now  refuses  payment  of  the 
license  charges  specified  in  Ordinance  No.  2917, 
averriag  that  the  said  license  is  unreasonable, 
unlawful,  and  therefore  void;  that  there  was 
due,  under  the  ordinance,  June  1,  1914,  $3,606.- 
60;  and  that  the  petitioner  refuses  to  pay  said 
sum  or  any  amounts  accruing  under  the  ordi- 
nance since  that  time. 

Sixth.  That  the  city  of  Brie  onploya  police, 
fire,  engineering,  electrical,  and  street  depart- 
ments, at  a  large  expense,  whose  duty  It  is,  in 
a  general  way,  to  inspect  the  lines,  mains,  and 
conduits  of  the  petitioner. 

Seventh.  That  no  regular  inspection  or  any 
inspection  at  any  particular  time  or  in  any  par- 


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SCANDINAVIA  BELTING  CX).  t.  MAOAN,  JR.,  OO. 


997 


ticular  way  was  made  by  tbe  respondent  of  the 
mains  of  the  petitioner.  The  only  inspection 
made  is  that  made  by  different  departments  of 
the  city,  such  aa  the  police,  fire,  en^eering, 
electrical,  and  street  departments,  is  incidental 
only,  and  while  those  departments  are  in  the 
performance  of  other  duties,  and  consists  princi- 
pally in  reporting  breaks  and  leaks  in  the  mains 
which  come  under  the  obserration  of  either  of 
them  while  performing  their  other  duties,  but  it 
does  not  appear  that  any  extra  expense  has  been 
or  is  now  occasioned  to  the  respondent  by  rea- 
son of  such  inspection. 

Eighth.  That  it  is  no  more  difficult  or  expen- 
sive to  inspect  the  high  than  the  low  pressure 
mains. 

Ninth.  That  the  actual  cost  to  the  respondent 
for  the  inspection  and  regulation  of  tbe  mains 
and  conduits  of  the  petitioner  does  not  exceed 
the  annual  expense  of  $7.60  per  mile  for  each  of 
the  120.22  miles  of  pipe. 

Tenth.  That  the  amount  fixed  In  the  ordinance 
is  excessive  and  nnreasonable. 

Eleventh.  That  the  petitioner  has  a  first-class 
and  up-to-date  system,  and  keeps  it  under  in- 
spection and  in  good  repair. 

Conclusions  of  Law. 

[1]  rirst.  The  city  of  E^ie,  a  city  of  the  third 
class,  may  collect  the  cost  of  reasonable  inspec- 
tion and  regulation  of  the  petitioner's  mains  in 
the  public  street,  but  the  amount  so  collected 
must  be  limited  to  the  necessary  cost  of  such  in- 
spection and  regulation,  and  cannot  be  in  fact  a 
tax  for  revenue  for  general  purposes. 

[2]  Second.  That  the  first  section  of  the  act 
of  July  26,  1913  (P.  L.  1371),  is  constitutional. 

[3]  Third.  That  under  the  act  of  April  17, 
1905  (P.  L.  183),  as  amended  by  the  act  of  July 
28, 1913  (P.  L.  1371),  the  court  has  power  to  re- 
duce the  license  fee  named  in  any  ordinance  of  a 
municipality  for  the  inspection  and  regulation  of 
conduits,  where  the  same  is  unreasonably  exces- 
sive. 

Fourth.  That  under  the  act  of  April  17,  1905 
(P.  L.  183),  and  ito  amendment  of  July  26, 
1913  (P.  L.  1371),  the  court  may  fix  such  li- 
cense fee  at  what  the  evidence  shows  would 
properly  compensate  the  respondent  for  neces- 
sary regulation  and  inspection. 

[4]  Fifth.  That  the  annual  cost  of  the  inspec- 
tion and  regulation  of  tbe  lines  and  mains  of 
the  petitioner  in  tbe  streets,  alleys,  and  other 
highways  of  the  city  of  Erie,  as  often  as  may  be 
required,  for  proper  and  adequate  inspection  and 
regulation,  does  not  exceed  the  sum  of  $7.50  per 
mile  per  year ;  such  amount  is  hereby  found  to 
be  a  reasonable  annual  compensation  for  such 
inspection  and  regulation  as  may  hereafter  be 
performed  under  the  terms  of  the  ordinance, 

The  lower  court  entered  a  decree  fixing 
$7.50  per  mile  as  the  annual  license  fee  to 
be  collected  by  the  city  of  Erie  from  the 
petitioner  for  each  mile  of  pipe  or  conduit  lo- 
cated within  the  dty  limits. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKER,  FBAZER,  and  WALLING, 
JJ. 

H.  Bedford  Duff  and  M.  O.  Cornell,  both 
of  Erie,  for  appellant.  J.  E.  Mullin,  of  Kane, 
Alexander  &  Clark,  of  Warren,  and  Gunni- 
son, Fish,  Gifford  &  Cbapln,  of  EJrle,  for  ap- 
pellee 

PER  CURIAM.  The  decree  is  affirmed  on 
the  findings  of  fact  and  conclusions  of  law 
by  the  learned  court  below. 


(!Sg  Pa.  2$l) 
SCANDINAVIA  BELTING  CO.  T.  MACAN. 

JR.,  CO. 

(Supreme    Court   of    Pennsylvania.      May    22, 

1917.) 

1.  Tbiai,  «=5>eO(l)— RacBPTioN  or  Bvidinob 
— Set-Off. 

In  an  action  against  a  company  for  goods 
sold  and  delivered,  the  burden  was  on  the  com- 
pany to  establish  ownership  of  a  sales  agency 
contract  made  by  plaintiff  with  its  president  be- 
fore its  alleged  breach  could  be  interposed  as  a 
set-off. 

2.  AssioRMENTB   «=9l38— Saiks   Contbact— 

QUKSnON  FOB  Jdbt. 

On  the  evidence  whether  the  contract  under 
which  the  company's  president  individually  had 
been  appointed  plaintiff's  sales  agent  had  been 
assigned  to  the  company  and  was  then  owned 
by  it  was  a  question  for  the  jury. 

3.  Sales  <8=>358(2)— Action  fob  Pbicb— Evi- 

DKNCE. 

The  jury  might  consider  the  prior  contracts 
and  the  course  of  dealing  thereunder  in  so  far  aa 
they  bore  upon  the  new  contract,  where  defend- 
ant set  up  such  new  contract  canceling  prior 
contracts. 

4.  Saues  9=a51— Aoknct  Cobttbaot  —  CoN- 
BTBUcnoN  BT  Pasties. 

In  an  action  for  goods  sold  and  delivered 
under  a  sales  agency  contract  requiring  the  pur- 
chase of  $40,000  worth  of  goods,  defendant's 
contention  that  the  sales  should  be  computed 
on  the  prices  received  by  its  president  or  by  it 
bad  no  merit,  where  the  prior  construction  of 
tbe  contract  by  the  parties  indicated  that  the 
$40,000  was  to  be  computed  on  the  amount  of 
sales  made  by  plaintiff  to  its  agent. 

5.  Sales  ®=»84— Aqency  Oontbact^Tbbm. 

A  sales  agency  contract  for  one  year  ended 
on  May  1st,  which  was  the  date  of  the  con- 
tract, although  the  contract  had  not  been  ac- 
tually signed  until  May  20th. 

6.  Sales  <3=3363— Aobnct  Conibaci^-Bbeach 
— iWaiveb. 

In  an  action  for  goods  sold  and  delivered 
under  a  sales  agency  contract  requiring  the  pur- 
chase of  $40,000  worth  of  goods,  where  the  first 
year's  sales  thereunder  fell  short  of  that  amount, 
the  jury  might  consider  whether  plaintiff  had 
waived  that  provision  so  as  to  render  cancella- 
tion of  contract  unjustified. 

Appeal  from  Court  of  Common  Pleas, 
Northampton  County. 

Assumpsit  for  goods  sold  and  delivered 
and  upon  promissory  notes  by  the  Scandi- 
navia Belting  Company  against  Macan,  Jr., 
Company,  with  counterclaim  by  defendants. 
Verdicts  for  plaintiff  and  Judgments  thereon, 
and  defendant  appeals.    Judgments  affirmed. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 

Aaron  Goldsmith  and  Kirkpatrick  &  Max- 
well, all  of  Easton,  for  appellant.  Robert  A. 
Stotz  and  F.  W.  Edgar,  both  of  Easton,  for 
appellee. 

WALLING,  J.  These  cases,  between  the 
same  parties,  involving  the  same  questions, 
one  on  an  account  for  goods  sold  and  deliv- 
ered and  the  other  on  two  promissory  notes, 
were  tried  together  in  the  court  below,  and 
will  be  so  considered  here. 

Plaintiff  is  a  corporation  with  principal  of- 


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flee  In  New  York,  and  as  such  bad  charge  of 
the  sale  in  this  country  of  foreign  made 
Scandinavia  belting,  for  which  purpose  It  had 
various  agencies,  one  of  which  was  that  of 
Macan  &  Huntington,  established  In  1901,  of 
which  the  senior  member  was  Greorge  G. 
Macan,  Jr.  This  agency  continued  until  1903, 
when  a  new  contract  was  made  between  the 
plaintiff  and  Macan  Individually,  wlilch  in 
1904  was  superseded  by  one  with  the  Macan, 
Jr.,  Company,  a  partnership  composed  of  said 
Bfacan  and  J.  M.  Drlesbach.  This  contract 
was  for  the  exduslve  agency  for  sale  of  the 
belting  in  the  states  of  Pennsylvania  and 
New  Jersey,  and  for  conveying  belting  for 
coal  and  cement  works  of  the  United  States. 
It  la  therein  provided  that: 

"This  agreement  to  remain  in  force  ao  long 
aa  the  annual  turn-over  reaches  the  simi  of 
fifteen  thousand  dollais  ($16,000.00)" 

— ^wlth  the  farther  provision  tliat  the  Macan, 
Jr.,  Company  was  not  to  handle  any  other 
kind  of  belting.  This  contract  was  canceled 
January  1,  1907,  by  virtue  of  a  new  agree- 
ment embracing  largely  the  same  provisions, 
except  that  it  was  made  with  Mr.  Macan  in> 
dividnally  and  not  with  the  firm.  In  Novem- 
ber, 1907,  the  defendant,  Macan,  Jr.,  Compa- 
ny, was  chartered  as  a  Pennsylvania  corpo- 
ration with  office  at  Baaton ;  Mr.  Macan  and 
Mr.  Drlesbach  were  its  principal  stodchold- 
ers,  the  former  having  400  and  the  latter  200 
shares.  The  partnership  liad  business,  aside 
from  that  under  the  contract  with  plaintiff, 
and  its  assets  seem  to  have  been  transferred 
to  the  corporation  at  a  valuation  of  $60,000  in 
exdiange  for  capital  stock,  which  assets  were 
described  in  the  resolution  of  the  defendant's 
board  of  directors  as  Including,  Inter  alia, 
"exclusive  state  and  United  States  agencies, 
good  will  of  established  business  and  surplus 
earned."  The  agency  for  Scandinavia  belt- 
ing, then  apparently  belonging  to  Macan,  was 
not  specifically  mentioned  as  a  part  of  these 
assets;  but  thereafter  plaintiff  did  mudi  of 
its  business  directly  with  defendant,  wtdle 
not  formally  recognizing  it  as  the  owner  of 
the  contract  of  January  1,  1907.  Some  acts 
and  declarations  of  Macan,  made  long  after 
the  formation  of  the  corporation,  indicate 
that  he  still  regarded  lilmself  as  the  owner 
of  the  contract,  and  whetlier  it  belonged  to 
defendant,  or  the  latter  was  merely  a  sub- 
agent  under  Macan,  was  one  of  the  questions 
in  the  case. 

A  new  contract  bearing  date  of  May  1, 
1912,  but  formally  executed  on  May  20th,  was 
made  between  plaintiff  and  Macan  individu- 
ally, in  which  he  Is  described  as  "the  agent," 
and  wherein  it  U  provided,  inter  alia,  that: 

"Whereby,  in  consideration  of  mutual  prom- 
ises, It  is  agreed  that  all  previous  contracts  are 
hereby  annulled,  aud  that  from  the  date  above 
mentioned  (May  1,  1912).  •  •  •  That  the 
agent  sliall  not  sell  or  offer  any  textile  belt 
other  than  Scandinavia  belting  obtained  from 
the  company  (plaintiff),  unless  he  obtains  the 
written  consent  of  the  company.    •    •    •    Xhis 


contract  shall  remain  in  force  while  the  agent 
does  an  annual  total  of  sale  of  forty  thousand 
dollars." 

It  made  certain  other  changes  from  that  of 
January,  1907,  including  change  of  territory 
embraced  therein,  etc.  Macan  was  defend- 
ant's president,  and  it  contends  that  the  mak- 
ing of  the  new  contract  in  his  name  was  a 
mistake,  and  that  in  fact  it  was  the  contract 
of  the  Macan,  Jr.,  Company.  But  the  weight 
of  the  evidence  and  all  the  drcumstances  Jus- 
tify the  conclusion  that  It  was  the  Intention 
of  both  plaintiff  and  Macan  that  the  new 
agreement  should  be  made  in  his  name,  and 
not  In  that  of  the  company.  However,  plain- 
tiff thereafter  continued  to  do  business  with 
defendant  aa  it  had  before,  and  in  the  doing 
thereof  the  Indebtedness  was  incurred  for 
which  these  suits  were  brought  Plaintiff  de- 
dared  the  new  contract  terminated  on  May 
1,  1914,  on  the  allegation  tliat  the  sales  for 
the  preceding  year  did  not  amount  to  (40,000, 
and  it  was  also  suggested  that  sales  of  other 
belting  had  been  made  in  violation  of  the  con- 
tract In  these  suits  defendant  admitted  the 
correctness  of  plaintiff's  claims  but  sought  to 
set  off  damages  by  reason  of  said  termina- 
tion of  the  new  contract  The  Jury  found  for 
plaintiff  for  the  full  amount  of  the  claims. 

[1-3]  The  contract  being  in  the  name  of  Mr. 
Macan,  the  burden  was  on  the  defendant  to 
establish  ownership  thereof  before  its  al- 
leged breach  could  be  Interposed  as  a  set-off ; 
and  such  ownership  depended  largely  on  con- 
flicting parol  evidence,  and  was  necessarily 
for  the  Jury.  We  agree  with  the  trial  Judge 
that  the  real  thing  (as  he  expresses  it)  was 
the  contract  of  1912,  but  that  the  Jury  could 
consider  the  prior  contracts  and  the  course 
of  dealing  thereunder,  ?o  far  as  they  might 
throw  light  upon  the  new  contract  This  is 
go  because  defendant  sets  up  the  new  con- 
tract and  claims  under  it,  and  hence  is  bound 
by  its  provisions,  one  of  whldi  is  the  cancel- 
lation of  prior  contracts;  and  aside  from 
that  defendant  makes  no  claim  to  damages 
for  bi-each  of  a  prior  contract 

[4]  The  sales  during  the  year  ending  May 
1, 1914,  according  to  plaintiff's  prices,  amount- 
ed to  less  than  $35,000,  but  defendant  con- 
tends that  the  sales  should  be  computed  on 
the  prices  received  by  Macan  or  by  the  Ms- 
can,  Jr.,  Company.  The  language  of  that 
clause  in  the  contract  might  seem  to  warraat 
such  construction,  but,  considering  the  con- 
tract as  a  whole,  the  prior  dealings  of  the 
parties  and  their  own  apparent  construction 
of  tliat  provision,  we  agree  with  the  conclu- 
sion of  the  learned  trial  Judge  that  the  $40,- 
(MO  should  be  computed  on  plaintifTs  prices. 
This  construction  is  strengthened  by  the  (act 
that  a  schedule  of  such  prices  is  attached  to 
the  contract,  and  that,  as  part  of  the  goods 
were  consigned  directly  to  the  defendant,  the 
plaintiff  had  no  means  of  knowing  to  whom 
nor  for  what  amount  they  were  resold.  Ma- 
can's  letters  seem  to  JuatU^  the  concIosioD 


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SAEGER  T.  COMMONWEALTH 


999 


tbat  he  onderstood  the  matter  was  to  be  ad- 
justed on  plalntlfTa  prices. 

[1,8]  As  the  first  year's  sales  tmder  the 
new  contract  also  fell  short  of  the  $40,000, 
the  court  instructed  the  Jury  that  they  might 
consider  whether  or  not  plaintiff  had  waived 
that  clause  in  the  contract.  It  was  rightly 
held  that  the  year  ended  on  May  1st,  as  that 
was  the  date  of  the  contract,  and  the  fact 
that  it  was  not  actually  executed  until  May 
20th  is  not  controIUng.  And  the  parties  con- 
strued the  contract  aa  taking  effect  May  1, 
1912. 

Defendant  contended  that  the  failure  to 
sell  the  required  amount  resulted  from  plain- 
tiff's interference,  and  tbat  was  referred  to  the 
jury,  as  was  also  the  question  of  defendant's 
damages.  We  find  nothing  to  justify  the  criti- 
cism that  the  charge  was  unfair  or  inadequate. 
The  controlling  questions  were  largely  of  fact, 
and  were  properly  submitted  to  the  Jury.  The 
verdicts  are  sustainable  on  the  ground  that 
the  contract  was  with  Macan  IndiTldually, 
and  that  defendant  was  a  subagent,  or  on  the 
ground  that,  as  the  sales  for  the  year  ending 
May  1, 1014,  were  under  the  $40,000,  plaintiff 
was  within  its  rights  in  declaring  the  con- 
tract canceled. 

The  assignments  of  error  are  overruled  and 
the  Judgments  are  affirmed. 


(2S8  Pa. »»)  _ 

SAEGER  T.  COMMONWEALTH. 

(Supreme  Court  of  PennsyWania.    May  14, 
1917.) 

1.  HiOHWATs   «=»76— Vacation— Repkal   of 

Statute. 
General  Road  Law  (Act  June  13,  1836;  P. 
To,  658)  {  18,  conferring  upon  certain  courts 
power  to  change  or  vacate  any  public  road,  was 
not  repealed  or  modified  by  Act  May  31,  1911 
(P.  L.  4S8),  relating  to  state  highways,  and 
conferring  upon  the  state  highway  commiBsioner 
the  power  to  divert  the  coarse  of  state  highways 
under  certain  circumstances. 

2.  Emiwent  Domain  «=3l00(6)— Vacation  of 

HlOHWATB— CoNSTITtrnONAL  PBOVIBIONS. 

The  vacation  of  a  road  or  street  is  not  an 
injury  to  the  abutting  landowners,  within  the 
provisions  of  the  Oonstitntion  requiring  compen- 
sation for  private  property  taken  in  the  exercise 
of  the  right  of  eminent  domain,  and,  in  the  ab- 
sence of  special  legislative  provision  for  dam- 
ages, none  can  be  recovered. 
8.  Eminent  Domain  ®=>271  —  Vacation  of 
Highway— Statute. 

Act  May  28,  1913  (P.  L.  368),  giving  a  right 
of  action  against  cities,  counties,  etc.,  and  Act 
June  27,  1913  (P.  L.  633),  relating  to  damages 
accruing  where  the  road  is  formally  vacated, 
gave  an  abutting  owner  no  remedy  against  the 
commonwealth  for  the  diversion  of  a  road  by 
the  state  highway  commissioner. 

Appeal  from  Court  of  Common  Pleas, 
Crawford  County. 

Proceeding  by  C.  W.  Saeger  against  the 
Commonwealth  of  Pennsylvania.  From  a 
judgment  refusing  to  take  off  a  compulsory 
nonsuit,  plaintiff  appeals.    Affirmed. 


The  facts  appear  in  the  following  opinion 
by  Prather,  P.  J.: 

This  case  arose  ont  of  an  appeal  from  the 
award  of  viewers  assessing  damages  in  favor  of 
plaintiff  for  the  vacation  of  a  certain  portion  of 
a  public  highway  in  front  of  plaintiff's  dwelling 
house  by  the  commissioner  of  highways.  The 
highway  in  qaestion  extends  from  MeadviUe  to 
Erie,  and  is  the  highway  described  as  route  84 
in  Act  May  31,  1911  (P.  L.  468,  482).  This 
public  road  became  a  state  highway  on  or  before 
Jane  1,  1912,  by  virtue  of  the  provisions  of  sec- 
tion  5  of  said  act,  and  thereafter,  according  to 
the  provisions  of  section  6  thereof,  came  "under 
the  exclosive  authority  and  Jarisdiction  of  the 
state  highway  department" 

Section  8  of  said  act  provides:  "Whenever  in 
the  construction,  reconstruction,  maintenance, 
and  repair  of  any  of  the  state  highways,  it  shall 
appear  to  the  commissioner  that  any  part  or 
portion  of  a  state  highway,  as  now  defined  and 
described  in  this  act,  is  dangerous  or  inconven- 
ient to  the  traveling  public,  in  its  present  loca- 
tion, either  by  reason  of  grades,  dangerous  tarns, 
or  other  local  conditions,  or  that  the  expense  to 
the  commonwealth  in  the  construction,  building, 
rebuilding,  maintenance,  and  repair  thereof 
would  be  too  great  or  unreasonable,  and  could 
be  materially  reduced  or  lessened  by  a  diver- 
gence from  the  road  or  route,  the  commissioner 
is  hereby  empowered  to  divert  the  course  or  di- 
rection of  same,  and  he  may  diverge  from  the 
line  or  route  of  same  as  herein  described,  in  such 
direction  or  directions  as  in  his  discretion  may 
seem  best,  in  order  to  correct  said  danger  or  in- 
convenience or  lessen  the  cost  to  the  common- 
wealth." 

By  stipulation  of  counsel  it  was  agreed  that 
the  state  highway  commissioner  in  1914  and 
1916  had  diverted  from  its  original  course  a 
certain  part  of  said  state  highway  lying  wholly 
within  the  township  of  Woodcock,  a  township  of 
the  second  class,  and  passing  through  plaintiff's 
farm,  by  constructing  a  new  road,  about  one 
mile  in  length,  along  the  west  side  of  the  Erie 
Railroad  track  and  west  of  the  right  of  way 
of  the  Northwestern  Pennsylvania  Railway 
Company;  the  termini  of  said  new  road  connect- 
ing with  points  on  the  state  highway,  thereby 
substituting  said  new  road  for  that  part  of  the 
state  highway  lying  between  said  points  and 
east  of  said  railroad  and  street  railway.  The 
said  highway  in  this  vicinity  extends  in  a  general 
north  and  south  direction.  The  substitution  or 
divergence  complained  of  avoids  two  railroad 
crossings  at  grade. 

With  these  facts  conceded  upon  the  trial,  we 
were  of  the  opinion  that  plaintiff  had  no  cause 
of  action  against  the  commonwealth  for  the 
conduct  of  the  state  highway  commissioner; 
hence,  rejected  the  offer  to  prove  damages  and 
directed  a  nonsuit.  It  is  clear  that  plaintiff's 
right  to  recover  must  rest  upon  some  constitu- 
tional or  statutory  prorision.  Counsel  for  plain- 
tiff contend  that  uie  recited  facts  operate  as 
a  vacation  of  said  road.  But,  even  if  so,  the 
Constitution  of  1874  gives  no  right  to  damages 
for  the  vacation  of  a  public  highway. 

Let  us  then  inquire:  (a)  Whether  there  was 
in  fact  a  vacation ;  and,  if  so,  (b)  whether  any 
statute  provides  damages  therefor.  We  are  of 
the  opinion  tbat  the  diversion  complained  of 
does  not  in  fact  vacate  the  portion  of  road  now 
rejected  from  said  state  highway. 

[I]  The  general  road  law  of  the  state  is  the 
act  of  June  13,  1836  (P.  L.  551).  Section  18 
thereof  provides:  "The  courts  aforesaid  shall 
•  *  •  have  authority,  •  •  •  to  change  or 
vacate  the  whole  or  any  part  of  any  •  •  • 
public  road."  With  reference  to  laying  out  and 
vacating  public  highways,  this  act  is  still  the 
law  of  the  state.  This  act  is  not  repealed  or 
modified  by  the  act  of  1911.    The  latter  act  nei- 


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(Pa. 


ther  Tests  in  the  state  highway  commiasioner 
any  authority  to  Tacate  a  public  road,  nor  makes 
any  reference  to  the  aabject  of  vacation.  The 
reasonaUe  inference  flowing  therefrom  is  that 
the  Legislature,  in  granting  the  commissioner  of 
state  highways  the  author!^  to  divert  the  course 
of  a  state  highway  for  reasons  named,  intended 
such  act  to  be  a  divergence  and  not  a  vacation. 

[2]  If  the  road  through  plaintiffs  farm  has 
not  been  yacated,  it  remains  a  public  highway  to 
all  intents  and  purposes  as  fully  as  it  was  at 
and  prior  to  the  passage  of  the  act  of  1011.  If 
this  conclusion  is  correct,  plaintiff  has  no  cause 
of  action.  But,  if  we  err  in  this,  plaintiff  is 
still  confronted  with  the  well-settled  rule,  stated 
by  the  Supreme  Court  in  Howell  v.  MorrisviUe 
Borough,  212  Pa.  349,  352,  61  AU.  932,  933,  as 
follows:  "It  must  therefore  be  accepted  as  set- 
tled law  that  the  vacation  of  a  highway  or 
street  is  not  an  injury  to  the  abutting  landown- 
ers within  the  provisions  of  the  Constitution  re- 
quiring compensation,  and  in  the  absence  of 
special  legislative  provision  for  damages  none  can 
be  recovered."  See,  also,  Rnscomb  Street,  30 
Pa.  Super.  Ct  476.  478,  and  cases  therein  cited; 
also  WetheriU  v.  Penna.  R.  R.  Co.  et  al.,  195 
Pa.  156,  45  Atl.  658;  Snively  v.  Washington 
Township,  218  Pa.  249.  67  Atl.  465,  12  L.  R.  A. 
(N.  S.)  918;  Winner  v.  Graner,  Kunte,  Baun 
and  Reserve  Twps.,  173  Pa.  43,  33  Atl.  608; 
Wagner  v.  Township  of  Salzburg,  132  Pa.  636, 
19  AU.  294. 

[3]  We  find  no  statute  squinting  at  the  liabil- 
ity of  the  commonwealth  for  the  act  complained 
of  in  the  case  before  us.  Our  attention  is  called 
to  the  acts  of  May  28,  1013  (P.  L.  3G8),  and 
June  27, 1913  (P.  L.  633).  But  the  former  gives 
the  injured  party  an  action  "against  cities,  coun- 
ties, boroughs  or  townships,  while  the  latter 
applies  to  damages  accruing  in  a  proceeding  by 
viewers  to  vacate  a  road,  which  results  in  a  va- 
cation of  the  road.  Clearly,  neither  of  these 
acts  gives  the  plaintiff  the  remedy  be  is  now 
invoking. 

Finally,  for  illustration,  assume  the  new  road 
constructed  by  the  state  highway  commissioner 
to  remain  its  present  length,  and  that  the  por^ 
tion  diverted  from  and  alleged  to  have  been  va- 
cated thereby,  instead  of  being  one  mile  in 
length,  to  be  a  detour  of  three  or  four  miles,  it 
certainly  would  not  be  urged  that  this  old  detour 
highway  w^as  vacated  by  the  adoption  of  a  short 
cut,  as  expressly  allowed  by  the  act  creating  the 
state  highway  in  question.  It  is  also  to  be  ob- 
served that,  of  the  various  state  highway  routes 
established  by  the  act  of  1911,  14  were  changed 
by  the  act  of  July  22,  1913  (P.  L.  941),  and  0 
were  changed  by  the  act  of  June  7,  1915  (P.  L. 
860),  and  neither  of  these  acts  suggests  that  such 
changes  were  considered  as  a  vacation  of  any 
public  road,  nor  does  cither  act  recognize  any 
liability  upon  the  part  of  the  commonwealth  for 
so  doing. 

We  are  of  the  opinion  that  the  court  commit- 
ted no  error  in  the  rejection  of  the  proposed  evi- 
dence and  the  entry  of  a  compulsory  nonsuit; 
therefore  the  rule  to  take  off  said  order  should 
be  discharged. 

The  lower  conrt  entered  a  compulsory 
nonsuit,  which  It  subsequently  refu&«d  to 
take  off.    Plaintiff  appealed. 

Argued  before  MESTREZAT,  POTTER, 
MOSOHZISKER,  FRAZBR,  and  WALLING, 
JJ. 

Frank  J.  Thomas  and  J.  P.  Colter,  both 
of  Meadville,  for  appellant.  William  H.  Kel- 
ler, First  Deputy  Atty.  Gen.,  Frauds  Shunk 
Brown,  Atty.  Gen.,  and  George  F.  Daven- 
port, of  Meadville,  for  the  Commonwealth. 


PER  CURIAM.  The  Judgment  is  affirmed, 
on  the  opinion  of  the  learned  conrt  below 
discharging  the  tale  to  take  off  the  nonsuit. 

(258  Pa.  2S2) 
In  re  PHILADELPHIA  PAltKWAT. 
Appeal  of  GRAND  FRATERNITY. 

(Supienia  Court  of  Pennaylvmnia.    May  14, 
1917.) 

EUasTENT    DoifAiir    <Ss>226   —    OFBiriRo    or 

SiBKKT— APPOINTKENT    OV    VIKWKBS — SlXT- 

Act  April  21,  1855  (P.  L.  266),  anthorizes 
councils  by  ordinance  to  order  any  street  on  the 
city  plan  to  be  opened,  whereupon  the  owners 
of  land  taken  may  petition  for  viewers  to  assess 
damages ;  and  Act  May  8,  1876  (P.  L.  138),  au- 
thorizes a  city  to  petition  for  the  appointment  of 
viewers  to  assess  damages,  when  the  proper  an- 
thorities  have  directed  the  opening  or  widening 
of  any  street.  A  d^  i^titioned  for  the  appoint- 
ment  of  a  board  of  viewers  to  fix  damages  or 
benefits  to  owners  within  the  lines  of  a  park- 
way, and  such  viewers  held  meetings  and  heard 
testimony;  and  thereafter  the  dty  passed  an  or- 
dinance to  open  another  part  of  the  parkway, 
whereupon  the  property  owners  in  such  part  pe- 
titioned for  the  appointment  of  a  board  of  view- 
ers. Held  that,  the  parkway  bein^  one  entire 
improvement,  and  the  city's  petition  for  ap- 
pointment of  viewers  being  equivalent  to  a  no- 
tice that  the  parkway  would  be  opened,  the  sec- 
ond appointment  of  viewers  was  properly  va- 
cated. 

Appeal  from  Court  of  Quarter  Sessions, 
Philadelphia  County. 

Petition  by  the  Grand  Fraternity  for  the 
appointment  of  viewers  in  the  matter  of  the 
opening  of  the  Philadelphia  Parkway.  From 
an  order  vacating  the  appointment  of  view- 
ers and  quashing  the  ];>etitlon,  petitioner  ap- 
peals.  Affirmed. 

Petition  for  appointment  of  viewers:  The 
facts  appear  in  the  following  opinion  by 
Davis,  J.,  on  motion  to  quash  the  petition: 

This  is  a  motion  on  behalf  of  the  dty  of  Phil- 
adelphia to  quash  the  petition  presented  by  the 
Grand  BVaternity  for  the  appointment  of  view- 
ers to  assess  damages  for  the  taking  of  property 
on  the  unopened  poi-tions  of  the  Parkway  from 
City  Hall  to  Fairmount  Park.  On  the  29th  day 
of  June,  1916,  the  city  of  Philadelphia  presented 
a  petition  for  the  appointment  of  viewers  to  as- 
sess damages  by  reason  of  the  opening  of  the 
unopened  portions  of  the  Parkway.  On  July  24, 
1916,  select  and  common  councils  passed  an  or- 
dinance authorizing  the  opening  oi  the  unopen- 
ed portions  of  the  Parkway.  On  the  26th  day 
of  January,  1917,  upon  the  petition  of  the  Grand 
Fraternity,  the  owner  of  property  on  the  south 
side  of  Arch  street,  173  feet  3  inches  west  of 
Broad  street,  viewers  were  appointed  to  assess 
damages  under  the  provisions  of  this  ordinance. 
The  aty  of  Philadelphia  moves  to  quash  this  last 
petition,  contending  that  the  Grand  Fraternity 
should  present  its  claim  before  the  viewers  ap- 
pointed on  June  29,  1916. 

By  Act  April  21,  1855  (P.  L.  266),  coundls  by 
ordinance  ore  authorized  to  order  any  street  on 
the  city  plan  to  be  opened,  whereupon  the  own- 
ers wboee  ground  has  been  taken  may  petition 
the  court  of  quarter  sessions  for  viewers  to  as- 
sess damages.  Act  May  8,  1876  (P.  L  13S), 
gives  authority  to  the  dt^  to  present  a  petition 
for  the  appointment  of  viewers  to  assess  dam- 
ages whenever  the  proper  authorities  have  di- 


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rected  'In  the  manaer  provided  for  by  law"  the 
opening  or  widening  of  a.nj  atreet  upon  the  city 
plan.  The  Grand  Fraternity  contends  that  the 
petition  filed  by  the  city  on  June  29,  1916,  was 
prior  to  the  ordinance  of  July  24,  1916,  and  be- 
fore notice  of  an  intention  to  take  the  property 
bad  been  served  as  required  by  the  act  of  as- 
sembly of  April  21,  1855.  In  the  case  of  Phil- 
adelphia Parkway,  250  Pa.  257,  95  Ad.  429. 
tte  Supreme  Court  held  that  by  numerous  ordi- 
nances to  open  portions  of  the  Parkway  as  plot- 
ted, and  by  the  condemnation  and  purchase 
under  which  the  dty  had  acc^uired  title  to  the 
variona  properties  within  the  limits  of  the  Park- 
way, the  city  became  committed  to  the  imprqye- 
ment.  Commentine  upon  the  acta  of  the  city, 
the  court  said:  "Tbo  facts  show  that  appellant 
has  suffered  erievous  injury  and  should  be  com- 
pensated. If  so,  why  not  now?  The  only  an- 
swer is  that  the  city  has  not  formally  oi^ered 
the  opening,  and  therefore  there  has  been  no 
taking  within  the  meaning  of  the  law.  Our  re- 
ply has  already  been  indicated.  What  the  dty 
has  done  is  equivalent  to  notice  that  the  Park- 
way will  be  opened  •  •  •  and  that  the  lands 
required  for  this  purpose  will  be  appropriated 
under  the  power  of  eminent  domain  unless  oth- 
erwise acquired.  Indeed,  as  we  view  it,  the 
citjr  has  committed  itself  to  the  opening  by  a 
series  of  acts  more  expressive  of  its  fixed  pur- 
pose than  could  be  indicated  by  a  resolution  to 
open  without  anything  more." 

It  is  contended  on  behalf  of  the  Grand  Fra- 
ternity that  there  is  no  power  to  appoint  a  jury 
npon  the  petition  of  the  ci^  of  Philadelphia, 
Tuless  the  opening  has  been  made  in  the  man- 
ner provided  bv  law.  This  same  contention  was 
made  on  bebalf  of  the  city  in  the  case  of  the 
Philadelphia  Parkway,  supra.  Upon  that  point 
the  Supreme  Ckmrt  held:  The  dty  has  commit- 
ted itself  to  this  improvement  by  its  acts  just 
as  much  as  if  councils  had  declared  their  inten- 
tion of  passing  an  ordinance  to  open.  We  coa- 
aider  what  has  been  done  as  the  equivalent  of 
notioe  to  the  property  owners  that  their  lands 
would  be  appropriated  for  Parkway  purposes 
and  that  their  possession  was  about  to  be  dis- 
turbed." It  is  also  contended  that  the  petition- 
er in  the  case  of  the  Philadelphia  Parkway,  su- 
pra, set  up  facts  whidi  satisfied  the  court  that 
the  injury  it  had  sustained  amounted  to  a  tak- 
ing. No  such  allegation  was  made  in  this  case 
on  behalf  of  the  Grand  EVatemity,  although  its 
property  is  within  the  limits  of  the  Parkway. 
It  18  a  fact  known  to  this  court  that  since  the 
decision  of  the  Supreme  Court  a  number  of  peti- 
tions have  been  presented  bv  owners  of  individ- 
nal  properties,  and  viewers  have  been  appointed 
to  assess  damages. 

Counsel  for  the  Grand  Fraternity  contends 
that  until  the  property  owner  electa  to  SMert 
tiiat  he  has  been  damaged  there  eaa  be  no  vlew- 
era  ai^ointed  to  assess  damages;   that,  the  city 


of  Philadelphia  having  passed  an  ordinance  in 
July,  1916,  to  take  the  property,  the  time  had 
then  arrived  when,  willing  or  unwilling,  the 
owner  of  the  real  estate  must  surrender  it,  and 
therefore  it  was  entitled  to  have  a  jury  appoint- 
ed, and  it  was  not  obliged  to  present  its  claims 
before  the  viewers  appointed  upon  the  petition 
of  the  city  in  June,  191&  If  this  argument  is 
sound,  had  there  been  no  ordinance  passed  in 
July,  1916,  the  Grand  Fraternity  would  have 
been  in  a  position  to  hold  its  property  and  pre- 
vent no  claim  for  damages,  if  it  so  elected. 
Property  owners  on  all  sides  might  have  pre- 
sented claims  before  viewers  appointed  under 
petitions  presented  by  them,  and  the  city  might 
have  taken  possession  of  the  properties  after 
damages  were  assessed  and  paid,  and  might  have 
opened  the  avenue  on  all  sides  of  this  particular 
piece  of  real  estate  and  would  have  been  power- 
lees  to  remove  it  nntil  the  adoption  of  an  ordi- 
nance to  open.  TToder  the  decision  of  the  Su- 
preme Oonrt  in  the  Parkway  Case,  this  would 
nave  been  an  absurdity.  As  we  have  said,  in 
that  case  the  court  held  that  the  municipality 
had  committed  itself  to  the  opening,  and  had 
done  those  things  which  amount  to  the  same  as 
a  formal  opening  by  ordinance.  It  was  not  an 
opening  as  to  one  property  to  the  exdusion  of 
another. 

We  are  of  opinion,  therefore,  that  the  mnnid- 
pality  in  June,  1916,  had  as  much  right  to  pre- 
sent its  petition  for  the  assessment  of  damages 
as  any  property  owner,  and,  for  the  purpose  of 
avoiding  a  multipUdty  of  individual  proceed- 
ings, its  petition  to  assess  damages  in  all  casea 
remaining  unsettled  was  lawful.  It  follows  that 
the  appointment  of  viewers  under  the  petition 
of  the  Grand  Fraternity  was  improvidently 
made  and  should  be  quashed.     It  is  so  ordered. 

The  court  accordingly  oatered  a  decree 
quashlDg  the  petition.  The  Grand  Fraternity 
appealed. 

Argned  before  BROWN,  O.  J.,  and  ICBS- 
TREZAT,  MOSCHZISKBK,  FRAZEE,  and 
WALLING,  JJ. 

Joseph  P.  McCnllen,  of  Philadelphia,  for 
appellant  John  P.  Connelly,  Caty  SoL,  and 
O.  Charles  Brodersen  and  Lonls  Hutt,  Asat 
City  Sols.,  all  of  Philadelphia,  for  appellee. 

PBR  CUHIAM.  Four  of  the  members  of 
the  conrt  who  heard  this  appeal  being  of 
opinion  that  the  appolntmoit  of  yiewera  was 
properly  vacated,  under  Philadelphia  Park- 
way, 260  Pa.  257,  96  AtL  420,  the  order  of  the 
court  below  is  affirmed,  at  appellant's  costs. 


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MAYER  BEOS.  CONST.  CO.  t.  AMERICAN 
STERILIZER  CO. 

(Supreme  Court  of  Pennsylvania.    Ma;  li, 
1917.) 

1.  GONTBACrS    «=>290— BUILDIKQ    Co!«TBACn^— 

Cbbtokcatb— Waivek. 
In  an  action  on  a  building  contract,  provid- 
int  that  all  payments  were  to  be  made  upon  the 
engineer's  certificate,  where  it  appeared  that 
nine  of  the  ten  paymenta  had  been  made  with- 
out any  certificate,  the  jury  would  be  warranted 
in  finding  that  the  owner  had  waived  such  provi- 
sion of  the  contract 

2.  Estoppel  €=>78(1)— Buh-dino  Corteaot— 
Waives  in  Genebax. 

The  usual  manner  of  waiving  a  right,  as  a 
right  under  a  building  contract,  is  by  conduct 
or  acts  intimating  an  intention  to  relinquish  the 
right,  such  waiver  being  a  matter  of  fact  to 
be  shown  by  the  evidence,  and  which  may  be 
shown  by  express  declarations  or  by  acts  mani- 
festing an  intent  not  to  claim  the  right,  or  im- 
plied from  such  acts  and  conduct,  or  by  failure 
to  act  inducing  a  belief  that  there  is  an  inten- 
tion to  waive  the  right,  or  by  circumstances  or 
conduct  amounting  to  an  estoppel. 

8.'  CoNTKACTS  «=>.323(3)— BuiLDiira  Contbact 
—Defective  CoNBTBUOTion  —  Qxtestion  fob 

JOBT. 

In  an  action  on  a  building  contract  regniring 
defendant  to  furnish  a  certain  hardening  ingred- 
ient which  the  contractor  claimed  had  resulted 
in  defective  floors,  held,  on  the  evidence,  that 
whether  the  floors  had  been  properly  laid  and 
whether  the  defects  resulted  from  such  ingred- 
ient were  questions  for  the  jury. 

4.  Appeabance    €=>18-^trBi8DicTioir— Cattse 
OF  AcTiow— Necebsitt  fob  Abbitbation. 

That  a  building  contract  provided  that  cer- 
tain disputes  would  be  artitrated  did  not  de- 
prive the  court  of  jurisdiction  in  an  action  there- 
on, where  the  parties  submitted  their  cause  by 
a  general  appearance  and  by  a  trial  without  de- 
murring or  questioning  the  jurisdiction. 

5.  Comtbaotb  «=»316(2)— BrrLDiwa  Cowtbaot 
— Bbeach— Daicaoes. 

Under  a  building  contract,  providing  that 
upon  the  engineer's  certificate  of  the  contractor's 
failure  to  prosecute  the  work  diligently  the  own- 
er, after  five  days'  written  notice,  might  provide 
labor  and  materials  and  proceed  with  the  work 
and  deduct  the  cost  from  the  money  thereafter 
dne,  the  owner  could  not  recover  damages  for 
delay  where  he  had  failed  to  avail  himself  on  such 
provision  of  the  contract  by  giving  notice,  etc^ 

Q,  CoNTBACTs  4=>284(3)— BuiLDiNQ  Co:;tbaot 
—Final  Payment. 
Where  a  building  contract  made  an  engi- 
neer's certificate  a  condition  precedent  to  tiie 
final  payment,  but  the  engineer  named  in  the 
contract  had  withdrawn  and  no  other  had  been 
appointed  in  his  place,  the  contractor  was  not 
required  to  make  an  attempt  to  procure  any  cer- 
tificate, as  the  law  does  not  require  a  party  to  do 
a  useless  thing  or  to  attempt  an  unnecessary 
thing. 

7.  contbacts  «=»303{5)— buildiho  cortbact 
—Defects. 

tinder  a  building  contract,  permitting  the 
engineer  in  charge  as  agent  of  the  owner  to 
change  the  plans  the  contractor  would  not  lie  re- 
sponsible for  defects  resulting  from  work  done 
under  the  engineer's  direction  differing  from  the 
plans. 

8.  CoNTBACTS  «=»303(5)— Building  Contbact 
—Guaranty. 

Where  the  contractor's  work  was  done  and 
tho  material  furnished  under  the  direction  and 


to  tbs  satisfaction  of  the  owner's  agents,  the 
owner  was  concluded  by  their  acts,  and  the 
contract  specification  did  not  control,  so  that  no 
guaranty  attached  to  defects  in  the  work  so 
done. 

Appeal  from  Court  of  Common  Pleas,  Erie 
County. 

Assumpsit  on  a  buUdlns  contract  by  tbe 
Mayer  Bros.  Construction  Company  ag^alnst 
the  American  Sterilizer  Comi>aiiy.  Verdict 
for  plaintiff.  Judgment  thereon,  motion  for 
new  tri&l  denied,  and  defendant  appeals. 
Affirmed. 

Rosslter,  J.,  In  tbe  court  of  cnnmon  pleas, 
filed  the  following  opinion  sur  defendant's  mo- 
tion for  a  new  trial: 

The  plaintiff  brought  this  action  against  the 
defendant  to  recover  the  sum  of  |5,000.71,  with 
interest  from  April  17,  1914,  for  work  and  labor 
done,  and  materials  furnished,  under  a  buildintr 
contract,  and  for  extras.  The  case  was  tried 
before  a  jury  and  a  verdict  was  rendered  in  fa- 
vor of  the  plaintiff  for  the  sum  of  (5,366.03. 

Whereupon  the  defendant  made  a  motion  for 
a  new  trial,  assigning  ten  reasons  therefor. 

The  first  reason  assigned  is  that  the  court 
erred  in  affirming  the  plaintiff's  points.  These 
points  were,  in  substance,  as  foUows: 

first  That  if  the  jury  found  that  the  defend- 
ant paid  nine  estimates  without  requiring  a  cer- 
tificate from  the  engineers,  as  required  by-  the 
contract,  then  they  would  be  warranted  in  find- 
ing that  the  defendant  had  waived  that  re- 
quirement of  the  contract 

Second.  That  if  the  jury  found  that  the  par- 
ties entered  into  a  new  or  modified  agreement,  in 
reference  to  the  laying  of  the  floors  and  that  the 
material  furnished  by  the  defendant  and  the 
floors  laid  under  its  direction,  the  plaintiff 
would  not  be  responsible  for  their  defective  con- 
dition. 

[1,2]  Article  7  of  the  contract  provided  "that 
the  plaintiff,  or  contractor,  should  be  paid  in 
current  funds  *  *  *  in  weekly  estimates 
♦  *  •  approved  by  the  engineers  •  •  • 
the  final  payment  to  be  made  within  thirty  days 
after  the  contract  was  fulfilled.  All  payments 
were  to  be  made  upon  the  written  certificate  of 
the  engineers  to  the  effect  that  such  payments 
became  due." 

We  affirmed  the  first  point  because  we  nnder- 
stood  that  the  law  was  and  is  that  any  one  may 
waive  anything  which  has  been  established  in 
his  favor  or  tot  his  benefit ;  that  the  nsual  man- 
ner of  waiving  a  right  is  by  conduct  or  acts 
whieh '  indicate  an  intentiota  to  lelinqoish  tbe 
right;  that  waiver  is  a  matter  of  fact  to  lie 
shown  by  the  evideAcd,  and  may  be  shown  by 
express  declarations  or  by  acts  manifesting  an 
intent  and  purpose  not  to  claim  the  privilege  or 
advantage;  or  that  a  waiver  may  be  implied 
from  acts  and  conduct;  or  by  such  failure  and 
neglect  to  act,  as  to  induce  a  belief  that  there 
is  an  intention  or  purpose  to  waive;  or  that 
it  may  l>e  shown  by  circumstances  or  by  a  course 
of  action  and  conduct  which  amounts  to  an  es- 
toppel.   40  Cyc.  252  et  seq. 

The  evidence  was  undisputed  that  there  were 
nine  payments  made,  and  that  no  written  certifi- 
cate of  tbe  engineera  to  the  effect  that  any  of  these 
nine  payments  were  due  was  asked  for  or  re- 
quired, and  we  were  then  of  the  opinion,  and  are 
now,  that  where  nine  payments  out  of  a  possi- 
ble ten  were  promptly  made,  without  complaint 
and  without  insisting  upon  compliance  with  the 
provisions  of  the  contract  relative  to  the  fur- 
nishing of  the  certificate,  that  that  would  be 
some  evidence  of  an  intention  on  the  part  of 
tbe  defendant  to  waive  that  provision  in  its  fa- 
vor as  to  the  tenth,  and  if  the  jury  found  that 


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the  defendant  intended  to  do  what  it  did  do,  Tiz. 
waive  nine  certificates,  the;  would  be  warranted 
in  concluding  that  it  had  wholly  waived  ita 
rights  in  this  respect,  and  hence  the  affirmance 
of  the  first  point. 

[3]  Aa  to  the  second  point,  the  evidence  was 
that,  after  the  engineers  had  severed  their  con- 
nection with  the  building  operations,  the  plain- 
tiff and  defendant  entered  into  a  modification  o£ 
the  contract  as  originally  made,  or  made  a  new 
or  supplemental  contract  By  the  new  arrange- 
ment, the  plaintiff  was  to  furnish  a  kind  of 
gravel,  or  granite  grit,  different  from  that  speci- 
fied in  the  contract,  and  the  defendant  was  to 
famish  a  certain  ingredient  to  mix  with  that 
gravel  to  be  used  as  a  hardener.  The  plaintiff 
claimed  that  the  defective  condition  of  the  floors 
resulted  from  the  use  of  the  hardener  and  the 
manner  in  which  the  floors  were  laid;  that  the 
floors  were  laid  under  the  supervision  of  another 
agent  of  the  defendant,  Mr.  Darrow,  and  the 
plaintiff  was  required  to  lay  them  as  he  direct- 
ed. The  defendant  contended  that  the  plaintiff 
did  not  use  the  land  of  substance  exhibited  as 
"M,"  as  agreed,  but  did  use  a  different  sub- 
stance, exhibited  as  "N"  and  that  it  was  by  rea- 
son of  the  use  of  the  latter  substance  that  the 
defective  condition  of  the  floors  resulted.  This 
waa  the  issue  on  this  subject,  and  we  afllrmed 
plaintiff's  second  point,  because  we  believed  Uiat 
if  the  jury  found  that  the  defective  condition  of 
the  floors  resulted  from  the  substance  furnished 
by  the  defendant  and  from  the  direction  by  the 
def«idant  of  the  manner  of  their  laying,  then 
the  plaintiff  would  be  in  no  way  responsible, 
for  the  defective  condition  of  the  floors  was  the 
result  of  what  the  defendant  furnished  and  di- 
rected done,  and  not  on  account  of  what  the 
plaintiff  furnished  and  did,  that  then  the  plain- 
tiff could  not  and  ought  not  to  be  held  respon- 
sible therefor.^  This  was  purely  a  question  of 
tact  for  the  jury,  and  the  point  was  properly 
answered  and  put  and  fully  warranted  under  the 
evidence. 

The  second  reason  for  a  new  trial  Is  that  the 
court  erred  in  refusing  to  afiirm  the  defendant's 
points.  The  defendant's  first  point  was  the  an- 
tithesis of  the  plaintiff's  first  point,  and  there- 
fore could  not  he  affirmed  under  our  views  as 
above  expressed,  and  the  same  reason  applies  to 
defendant's  second  point 

[4J  The  defendant's  third  point  we  believe  was 
properly  answered,  and  we  refused  the  fourth 
point,  which  was  to  the  effect  that  the  court  was 
without  jurisdiction,  because  of  a  clause  in  the 
contract  providing  that  disputes  be  submitted 
to  arbitrators,  as  set  forth  in  article  8.  It  is 
sufficient  to  say  upon  this  subject  that  the  par- 
ties submitted  their  cause  to  this  forum  by  a 
general  appearance  and  trial  of  the  case,  without 
demurring,  or  taking,  any  other  steps  to  question 
or  oust  the  jurisdiction. 

The  defendant's  fifth  point  was  for  binding  in- 
structions, which,  of  course,  conld  not  under  the 
evidence  be  affirmed. 

[5]  The  third  reason  given  for  a  new  trial  is 
that  the  court  erred  in  holding  that  the  defend- 
ant could  not  recover  damages  on  account  of  the 
plaintiff's  failure  to  complete  the  contract  with- 
in a  reasonable  time. 

There  was  no  time  set  in  the  contract  when 
the  building  was  required  to  be  completed.  The 
contract  did,  however,  set  forth  in  article  6  that 
if  the  contractor  failed  to  prosecute  the  work 
with  promptness  and  diligence,  such  refusal,  neg- 
lect, or  failure,  being  certified  by  tlie  engineers, 
the  owner  should  be  at  liberty,  after  five  days' 
written  notice,  to  provide  such  labor  and  mate- 
rials, and  to  deduct  the  cost  from  the  money  due 
thereafter,  and  proceed  with  the  work  at  once. 
ISiis  being  the  remedy  provided  in  the  contract 
for  expediting  the  work,  we  are  of  the  opinion 
that  this  remedy  would  first  have  to  be  exhaust- 
ed, and,  there  being  no  evidence  in  the  case  that 
defendant  availed  itself,  or  attempted  to  avail 
itself,  of  this  provision  of  the  contract,  we  are 


of  the  opinion  that  it  conld  not  recover  damages 
for  delay. 

The  fourth  reason  for  a  new  trial  was  aa  to 
the  covering  of  the  steel  work  and  the  reinforc- 
ing rods,  ^e  contract  provided  in  article  1 
that  the  plaintiff  under  the  direction  of,  and  to 
the  satisfaction  of  the  owner,  as  expressed  by 
Irvln  and  Witberow,  engineers,  acting  for  the 
putDose  of  the  contract  as  the  agents  of  the 
owner,  was  to  perform  the  contract  The  undis- 
puted evidence  was  that  the  whole  of  the  work 
done  by  the  plaintiff,  except  the  laying  of  the 
floors,  was  done  under  the  direction  of,  and  to 
the  satisfaction  of  the  owner,  as  expressed  by 
Irvin  and  Witherow,  fbe  engineers,  and  it  being 
expressly  provided  in  the  contract  that  they 
were  the  agents  of  the  defendant,  we  held  that 
the  defendant  could  not  recover  damages  from 
the  plaintiff  for  doing  the  work  as  it  had  direct- 
ed the  plaintiff  to  do  it 

The  fifth  reason  for  a  new  trial  was  our  hold-* 
ing  the  plaintiff  could  recover  without  a  final 
certificate,  and  our  reasons  for  bo  holding  are  in 
pert  given  above. 

[6]  It  was,  however,  strennonsly  ui^ed  that 
final  payment  was  ot  a  different  character  than 
the  other  payments  which  were  made  as  the 
work  progressed,  for  the  reason  that  the  final 
payment  would  be  in  the  nature  of  an  accord 
and  satisfaction,  or  final  settlement,  between  the 
parties  for  all  work  done  and  material  famish- 
ed, and  that,  even  though  the  jury  found  from 
the  evidence  that  the  defendant  did  waive  the 
requirements  relative  to  the  certificate  aa  to  all 
other  payments,  that  would  be  no  evidence  that 
it  intended  to  waive  its  right  to  a  certificate  as 
to  the  final  payment  and  that  therefore,  the  ab- 
sence ot  final  certificate  barred  the  action.  To 
this  we  cannot  accede  as  a  legal  proposition. 
But  even  if  this  final  certificate  was  required 
and  the  defendant  could  have  relied  upon  the 
fact  it  waa  not  given,  still  it  is  conceded  that 
had  this  certificate  been  withheld  by  fraud  or 
for  any  other  wrongful  reason,  then  suit  might 
have  been  brought  to  recover  without  it  Now 
the  undisputed  evidence  on  this  subject  is  that 
long  prior  to  the  bringing  of  the  suit,  the  engi- 
neers, named  in  the  contract,  had  withdrawn 
from  the  job;  that  there  had  never  been  any 
other  engineers  appointed  in  their  place,  and  ol 
this  fact  both  parties  were  cognizant,  so  it  is 
clear  that  there  was  no  engineer  to  whom  the 
plaintiff  could  go  to  obtain  such  certificate,  and, 
as  the  law  does  not  require  a  i>arty  to  do  useless 
or  attempt  impossible  and  unnecessary  things, 
we  could  see  no  reason  why  the  plaintiff  should 
be  required  in  this  case  to  make  an  attempt  to 
procure  a  certificate  from  engineers  who  did  not 
exist,  that  the  plaintiff  knew  did  not  exist,  and 
that  the  defendant  knew  did  not  exist  prior  to 
the  bringing  of  the  action. 

The  sixth  reason  for  a  new  trial  was  prac- 
tically the  same  as  the  fifth,  and  the  same  rea- 
soning as  applied  to  the  affirmance  of  the  plain- 
tiff's second  point  applies  to  the  seventh  reason 
for  a  new  trial. 

We  did  hold,  and  in  that  holding  we  think  we 
were  right,  that  defendant  could  not  recover 
damages  for  any  work  that  was  done  under  the 
direction  and  to  the  satisfaction  of  Irvin  and 
Witherow,  which  holding  is  assigned  as  the 
eighth  reason  for  a  new  trial,  but  there  was  no 
offer  to  prove  that  defects  developed  subse- 
quently. 

[7]  As  to  the  ninth  reason  for  a  new  trial,  to 
the  effect  that  the  court  erred  in  holding  evi- 
dence inadmissible  to  show  that  the  work  was 
not  done  according  to  the  plans  and  specifica- 
tione,  we  held  that  the  engineers  in  charge,  being 
the  agents  of  the  owner,  had  a  right  to  change 
these  plans  and  specifications,  if  agreeable  to 
the  plaintiff,  and  that  if  these  plans  and  specifi- 
cations were  changed  and  the  work  done  under 
the  direction  of  the  agent  of  the  owner,  the 
plaintiff  conld  not  be  held  responsible  for  defects 
which  might  result     In  other  words,  the  only 


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1004 


101  ATLANTIC  REPORTER 


(Pa. 


queBtion  wag,  Did  the  plaintill  perform  the 
work  as  Irvin  &  Witherow  directed;  if  it  did, 
that  ended  it ;  if  it  did  not,  then  the  defendant 
could  prove  noncompliance  with  the  specifica- 
tions; but  aa  Mr.  Irvin  testified:  "Q.  State 
whether  or  not  the  work  which  was  done  on 
this  contract,  on  this  job,  up  to  the  time  that 
you  severed  your  connection  with  it,  wag  done 
in  substantial  compliance  with  the  terms  of  the 
contract?  A.  It  was  done  in  substantial  com- 
pliance with  the  contract" — w«  think  our  hold- 
ing was  warranted. 

In  relation  to  the  tenth  assignment  of  error, 
we  are  of  the  opinion  that  under  the  undisputed 
evidence  the  whole  of  the  work,  with  the  excep- 
tion of  the  laying  of  the  floors,  was  done  under 
the  supervision  and  direction  of  the  agents  of 
defendant,  Irvin,  and  Witherow,  and  that,  even 
though  the  contract  did  set  forth  that  if  defects 
developed  within  a  year  or  within  any  other 
time  after  the  completion  of  the  contract,  if  the 
work  waa  performed  aa  the  owner's  agents  di- 
rected, and  not  according  to  the  plans  and  spec- 
ifications, that  that  relieved  the  plaintiff  of  its 
responsibility  relative  to  the  development  of  fu- 
ture defects.  That  is,  when  a  contract  specifies 
that  work  is  to  be  done  in  a  certain  way  and 
the  owner  reserves  the  right  for  his  designated 
agent  to  stand  by  and  direct  it  to  be  done  in  an- 
other way,  if  his  designated  agent  does  stand  by 
and  see  it  done,  or  changes  it,  and  it  afterwards 
appears  that  the  construction  was  wrongly  or 
defectively  done,  he  cannot  be  held  to  say  that 
he  has  been  damaged.  It  is  bis  duty  to  insist 
that  it  be  properly  perfol-med  at  the  time. 

But  in  this  case  there  was  no  offer  to  prove 
that  any  defects  developed  after  the  completion 
of  the  job.  The  offers  were  all  to  prove  faulty 
construction,  and  construction  not  according  to 
the  plans  and  specifications,  which,  if  true, 
would  be  the  act,  or  at  least  the  result  of  the 
act,  of  the  defendant's  agents,  and  hence  defend- 
ant could  not  claim  that  it  had  been  damaged 
thereby.  It  will  be  observed  in  this  connection 
that  we  did  permit  the  defendant  to  prove  its 
damage  on  account  of  the  board  marks  not  being 
removed,  and  we  did  this  because  there  was  no 
evidence  to  show  when  the  frames  were  remov- 
ed, which  caused  the  marks,  and  therefore  they 
might  have  been  removed  alter  Irvin  and  With- 
erow severed  their  connection  with  the  work, 
but  this  branch  of  the  case  was  clearly  for  the 
jury,  and,  they  having  decided  it,  we  cannot 
now  interfere. 

The  provisions  of  article  1  of  the  contract,  ap- 
pointing Irvin  and  Witherow  as  agents  of  the 
defendant,  and  the  provisions  under  the  head  of 
guaranty  in  the  plans  and  specifications,  were 
the  provisions  around  which  revolved  the  diffi- 
culties which  resulted  in  this  lawsuit. 

The  theory  of  the  plaintiff  was  that  the  par- 
ties to  the  contract  had  the  right  to  change  or 
alter  the  contract  if  they  saw  fit ;  that  Irvin  and 
Witherow  were  the  parties  to  the  contvact,  so 
far  as  the  defendant  was  concerned  ;  that  inde- 
pendent of  the  contract,  in  spite  of  it,  and  con- 
trary to  its  provisions,  the  parties  had  the  right. 
If  they  saw  fit,  to  modify,  change,  or  wholly  an- 
nul it,  it  being  their  contract,  and  having  done 
■o,  they  are  bound  by  what  they  did,  and  not  by 
what  the  contract  provided. 

The  theory  of  the  defendant  was  that  the 
plaintiff  was  bound  to  perform  the  contract  un- 
der the  direction  and  to  the  satisfaction  of  its 
agents,  also  according  to  the  plans  and  specifica- 
tions, and  guarantee  the  work  for  one  year  after 
completion. 

[8]  The  court  believes  that  where  the  work 
was  done  and  the  material  furnished  under  the 
direction  and  to  the  satisfaction  of  the  defend- 
ant's agents,  they  were  concluded  by  their  acts, 
and  the  contract  and  plans  and  specifications  do 
not  control ;  and  therefore  no  guaranty  attach- 
ed, and  the  evidence  was  undisputed  that  all  of 


the  work,  except  the  laying  of  the  floors,  was 
done  under  the  sui>ervision,  direction,  and  to  the 
satisfaction  of  Irvin  &  Witherow. 

Argued  before  MESTREZAT,  POTTEB, 
MOSCHZISKKR,  FRAZER,  and  W^ALLIN'Q, 
JJ. 

T.  A.  Lamb  and  John  B.  Brooks,  both  of 
Brie,  for  appellant  P.  V.  Glfford  and  Gun- 
nison, Fish,  Glfford  &  Chapin,  all  of  Eile, 
for  appellea 

PER  OURIABf.  In  the  opinion  discharg- 
ing the  rule  for  a  new  trial,  the  learned 
court  below  has  discussed  all  the  Questions 
raised  on  this  appeal,  and  we  concur  In  bis 
eoncloslons. 

The  Judgment  Is  afflrmed. 


(SSPa.  2S2) 
HARPER  et  aL  T.  PHILADELPHIA  RAP- 
ID TRANSIT  CO. 

(Supreme   Court   of  Pennsylvania,     lilay    22, 
1817.) 

1.  Appeal  and  Brbob  4=9927(3)— Qttestioit 
or  Fact— Intbwsncks. 

On  appeal  from  a  judgment  of  nonsuit  In 
an  action  for  personal  injury,  where  defendant 
submitted  no  evidence,  the  appellate  court  must, 
for  the  purpose  of  the  case,  assume  the  truth 
of  plaintiffs  evidence  and  any  inferences  which 
may  be  drawn  therefrom. 

2.  Stbebt     Railboadb    9=>85(3)  —  Usk    or 
Stbeet — Due  Cabe. 

One  lawfully  driving  on  the  proper  side  of 
the  street  is  bound  to  get  out  of  a  street  car's 
way,  and  those  in  charge  of  a  street  car  are 
bound  to  afford  him  a  reasonable  opportunity 
to  do  BO. 

3.  Stbeet    RAn.E0AD8    «=»117(11)  —  Neoli- 
OENCB— Question  fob  Jubt. 

In  an  action  for  damages  sustained  when 
plaintiff's  team  was  struck  by  a  street  car, 
held  on  the  evidence  that  whether  the  defendant 
was  negligent  in  respect  to  improper  speed  in 
overtaking  the  team  was  for  the  jury. 

4.  Stbeet  Raiuioadb  «=>101— Neouoeno— 
Signals. 

Where  the  driver  of  a  team  saw  an  ap- 
proaching street  car  300  feet  away,  the  ques- 
tion whether  the  motorman  gave  a  signal  of 
its  approach  was  unimportant. 

5.  Stbeet    (Railboadb    €=s>00(4)  —  Use    op 
Tracks — Due  Cabe. 

A  street  railroad  is  entitled  to  the  right  of 
way,  but,  as  to  one  lawfully  driving  a  team 
along  its  tracks,  is  bound  to  exercise  such  right 
so  as  to  give  the  driver  a  reasonable  opportu- 
nity to  get  out  of  the  way,  after  notice  of  the 
car  s  approach. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphla  County. 

Trespass  by  Harry  Harper,  by  Ms  next 
friend  and  father,  William  Harper,  and  by 
William  Harper  in  his  own  right,  against  the 
I'hiladelphla  Rapid  Transit  Company,  to  re- 
cover damages  for  personal  Injury.  From  an 
order  refusing  to  take  off  a  nonsuit,  plain- 
tiffs appeaL  Reversed,  and  a  procedendo 
awarded. 

Argued  before  BROWN,  a  J^  and  STEW- 
ART, MOSOHZISKER,  FRAZER,  and  WAL- 
LING, JJ. 


4=>Far  other  oases  see  same  topic  and  KEY-NUMBER  In  all  Ker-Mombered  DlgesU  and  Indazes 


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HARFF.R  T.  PHILADXLPaiA  RAPID  TRANSIT  C!0. 


1005 


WllUam  B.  Lamb  and  Wm.  H.  B.  Lukoos, 
both  of  Philadelphia,  for  appellants.  Sydney 
Young,  of  Philadelphia,  for  appellee. 

WALLING,  J.  This  appeal  Is  from  an  order 
refusing  to  set  aside  a  compulsory  nonsuit, 
granted  in  an  action  by  a  father  and  minor 
son  for  personal  Injuries  to  the  son.  There 
Is  a  l>rldge  abont  2S  feet  in  width  in  Second 
street,  Philadelphia,  which  spans  a  creek 
below  Tabor  road.  Defendant  has  a  double 
track  railway  in  that  street,  which  crosses 
the  bridge  at  grade  and  In  fact  occupies  a 
large  part  of  its  surface,  the  tracks  being 
parallel  and  that  on  the  west  side  being  south 
twund.  The  bridge  is  in  a  vaUey,  and  the 
grade  of  the  street  descends  toward  it  from 
both  north  and  south.  To  the  north  the 
street  is  straight,  and  a  motorman  in  charge 
of  a  car  approaching  from  that  direction  has 
a  clear  view  of  the  surface  of  the  bridge  for 
at  least  300  feet. 

On  March  20,  1915,  the  plaintiff,  Harry 
Harper,  was  driving  a  horse  and  wagon  for 
some  men  engaged  in  trimming  trees.  The 
wagon  box  was  7^  feet  long,  and  in  it  was 
an  extension  ladder,  also  some  rope  and 
shears.  The  ladder  was  adjusted  at  its  min- 
imum length  of  16  feet,  and  one  end  was 
under  the  seat  in  front  and  abont  one-half 
extended  back  over  the  rear  end  of  the  box. 
It  was  placed  parallel  to  and  along  the  right 
side  of  the  wagon  box.  Three  workmen 
were  in  the  wagon,  one  seated  on  the  ladder 
and  two  on  the  seat  with  plaintiff.  Plaintiff 
was  going  south,  and  approached  the  bridge 
on  the  south-bound  track,  it  being  necessary 
to  occupy  the  track  in  driving  over  the 
bridge.  He  looked  back  and  saw  a  trolley 
car  coming  beliind  him  about  300  feet  away ; 
and  immediately  reined  his  horse  to  the  left 
80  as  to  get  on  the  north-bound  track  that  the 
car  might  pass,  and  succeeded  in  getting  the 
horse  and  front  wheels  of  the  wagon  on  that 
track,  but  the  car  overtook  him  before  he 
could  get  the  rear  end  of  the  ladder  out  of 
the  way,  and  struck  it  with  such  violence  as 
to  force  It  through  the  front  end  of  the  wag- 
on box,  and  to  push  the  horse,  wagon,  and 
load  about  150  feet  up  the  grade,  throwing 
plaintiff  and  his  companions  from  the  wagon 
and  causing  the  injuries  here  complained  of. 
Plaintiff's  efforts  to  get  out  of  the  way  were 
somewhat  hindered  by  the  narrow  bridge  and 
also  by  temporary  obstructions  at  the  side 
-caused  by  the  work  of  constructing  a  sewer. 
At  the  time  of  the  collision  the  wagon  was  in 
a  diagonal  direction,  as  the  rear  wheels  had 
not  reached  the  north-bound  track,  and  the 
rear  end  of  the  ladder,  on  which  was  a  red 
flag  to  make  it  more  conspicuous,  extended 
towards  the  west  track.  While  plaintiff 
drove  about  40  feet  in  his  effort  to  get  out 
of  danger  the  car  ran  about  300  feet.  The 
slcy  was  clear,  and  the  accident  happened 
about  noonday.  It  was  one  of  defendant's 
ordinary  green  cars,  the  body  of  which  is 


wider  than  the  front  end.  Windows  were 
broken  on  th'i  left  side  of  the  car,  but  just 
what  part  of  It  flrst  hit  the  ladder  does  not 
appear. 

[1-4]  As  defendant  submitted  no  evidence, 
we  must,  for  the  purpose  of  this  case,  assume 
the  truth  of  that  offered  for  plaintiff,  and 
also  any  Inferences  that  might  be  drawn 
therefrom.  And  on  that  assumption  in  oui 
opinion  the  learned  court  below  erred  in  re- 
fusing to  strike  off  the  nonsuit  This  was 
a  public  street  where  both  parties  had  rights. 
Plaintiff  was  lawfully  on  the  street,  and  was 
using  it  for  a  proper  purpose,  and  nothing 
appears  that  as  matter  of  law  would  convict 
him  of  contributory  negligence^  While  he 
was  on  the  proper  side  of  the  street,  it  was 
his  duty  to  get  out  of  defendant's  way  and 
the  duty  of  the  latter  to  afford  him  a  reason- 
able opi>ortunity  to  do  so.  It  was  such  a 
place  as  required  care  by  both  parties.  And 
whether  defendant  performed  its  duty  was, 
under  the  circumstances,  for  the  Jury.  As 
plaintiff  saw  the  car  300  feet  away  the  ques- 
tion of  signals  would  not  seem  to  be  impor- 
tant But  the  fact  that  the  car  was  moving 
about  seven  times  as  fast  as  the  wagon  and 
pushed  the  horse  and  wagon  along  for  about 
150  feet  under  the  circumstances,  would 
seem  to  make  the  question  of  improper  speed 
one  for  the  Jury.  The  horse,  wagon,  and  men 
were  in  plain  view  of  the  motorman  for  300 
feet ;  if  he  did  not  see  them  he  was  at  fault, 
as  he  also  was  if  he  saw  them  and  failed  to 
have  his  car  under  control.  If  the  car  was 
approaching  the  bridge  so  rapidly  that  it 
could  not  be  stopped  in  the  300  feet,  that 
would  certainly  be  evidence  of  negligence. 
That  windows  were  broken  on  the  side  of  the 
car  indicates  that  the  ladder  and  car  were 
there  in  contact  hut  does  not  necessarily 
show  that  they  did  collide  at  some  other 
point  The  front  end  of  the  car,  being  of  less 
width  than  the  body,  may  have  cleared  or 
grazed  the  ladder,  but  the  result  shows  that 
the  ladder  must  have  come  in  contact  with 
something  more  substantial  than  glass.  The 
evidence  would  Justify  a  finding  that  the 
cause  of  the  accident  was  the  failure  of  the 
motorman  to  afford  plaintiff  an  opportunity 
to  get  out  of  the  way ;  for  several  witnesses 
testify  that  at  the  time  of  the  collision  the 
wagon  was  in  a  diagonal  position,  with  the 
ladder,  as  the  result  showed,  not  out  of 
range  of  the  approaching  car.  The  theory 
of  appellee's  counsel  that,  because  the  flrst 
and  second  windows  on  the  side  of  the  car 
were  not  broken  and  others  were,  therefore 
the  ladder  must  have  been  out  of  range  of  the 
car  and  then  suddenly  turned  back,  while 
plausible,  does  not  necessarily  result  from 
that  circumstance,  and  finds  no  other  supiwrt 
in  th'i  evidence. 

(S]  An  inference  of  defendant's  negligence 
can  reasonably  be  drawn  from  the  evidence, 
and  therefore  the  case  is  for  the  jury.  The 
following  language  of  Judge  Henderson,  in 


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(Pa, 


Frledland  t.  Altoona  ft  Logan  Valley  Elec- 
irlc  Ry.  Co.,  59  Pa.  Super.  Ct  639,  S42,  is  ap- 
plicable to  this  case: 

"The  plaintiff  was  in  the  exercise  of  a  law- 
ful right  in  driving  along  the  track  and  al- 
though the  defendant  company  was  entitled  to 
the  right  of  way,  its  employla  were  bound  to 
exercise  the  right  in  such  a  manner  as  to  give 
those  driving  along  the  track  a  reasonable  op- 
portunity to  get  out  of  the  way  when  notified 
of  the  approach  of  the  car." 

So  also  is  the  language  of  Judge  Porter 
in  "D&yis  T.  Media,  Mlddletown,  Aston  & 
Chester  Electric  Ry.  Go^  26  Pa.  Super.  Ct 
444,  448,  that: 

"When  the  tracks  are  laid  in  a  public  high- 
way, the  driver  of  a  wagon  lawfully  using  them 
in  front  of  an  approaching  car,  while  it  is  his 
dnty  to  give  way  and  not  obstruct  its  progress, 
is  entitled  to  reasonable  warning  and  reason- 
able time  to  get  out  of  the  way.  The  employds 
of  the  defendant  company  were  bound  to  keep 
the  car  under  control,  and  had  no  right  to  run 
the  plaintiff  down  either  uiton  the  track  or 
while  he  was  in  the  act  of  leaving  it.  They 
were  bound  to  use  every  reasonable  effort  to 
avoid  a  collision." 

While  the  street  railway  company  has  the 
right  of  way  it  must  give  the  driver  of  a 
Tehide  an  opportunity  to  clear  the  track. 
See  Heuber  v.  Consolidated  Traction  Compa- 
ny, 210  Pa.  70,  58  Atl.  430;  Trumbower  v. 
Lehigh  Valley  Transit  Co.,  235  Pa.  397,  84 
AtL  408.  A  case  quite  like  the  present  is 
that  of  Davidson  t.  Schuylkill  Traction  Co., 
4  Pa.  Super.  Ct.  88,  where  the  earlier  author- 
ities are  cited  and  considered  by  President 
Judge  Rice.  It  was  said  by  Mr.  Justice  Pot- 
ter in  the  recent  case  of  Gordon  v.  Beaver 
VaUey  Traction  Co.,  247  Pa.  248,  248,  93 
Atl.  334,  335: 

"As  we  have  often  held  in  similar  cases,  it 
was  the  right  of  the  plaintiff  to  drive  on  any 
part  of  the  street,  subject  to  the  superior  right 
of  the  defendant  to  the  use  of  its  tracks,  and 
warning  of  the  approach  of  the  car  should 
have  been  given  to  plaintiff,  and  he  should  have 
been  allowed  sufficient  time  to  get  off  the  track 
in  safety.  Whether  or  not  such  warning  was 
given,  or  sufficient  time  was  allowed  him  to 
get  out  of  the  way ;  or  whether  the  car  actually 
struck  the  wagon,  and  caused  the  injuries  to 
plaintiff  for  which  he  sought  to  recover,  were 
all  questions  of  fact  for  the  jury." 

The  judgment  la  reversed,  and  procedendo 
awarded. 

(258  Pa.  22S) 

COMMONWEALTH   v.    MILLBR. 

(Supreme   Court   of   Pennsylvania.      May    14, 
1917.) 

1.  Homicide    «=>253(1)   —   Mubdbb   in   thk 
FiBST  Deq&ee — Sufficiency  of  Bvidkmce. 

Bvidence  in  a  trial  for  murder  held  sufficient 
to  sustain  a  conviction  of  murder  in  the  first 
degree. 

2.  Homicide    *=»237—lNaANiTT— Evidence. 

Eividence  in  a  trial  for  murder  held  to  nega- 
tive the  defendant's  contention  that  he  was  in- 
sane. 

3.  Homicide  <S=>145  —  Evidence  —  Use  or 
Deadly  Weapon. 

The  inference  of  an  intent  to  kill  may  not 
be  drawn  solely  from  the  fact  that  the  weapon 
was  deadly  and  was  used  upon  a  vital  part,  but 


the  fact  that  it  was  sudi  and  was  so  used  is  to 
be  considered  with  all  the  circumstances  in  de- 
termining the  intent. 

4.  Homicide  @=>2S3— Degree— Motive. 

A  reasonable  doubt  as  to  motive  does  not 
prevent  a  conviction  of  a  higher  degree  of  htnn- 
icide  than  the  second  degree. 

5.  Cbiminal  Law   <S=>762(5)—Ohabge— Con- 
sequence OF  Verdict. 

A  charge  that  the  jury  were  not  to  be  de- 
terred from  a  true  finding  by  any  thought  of 
possible  consequences  of  their  verdict  was  not 
prejudidal. 

6.  Criuinai,  Law  «=34M(3)— Byidkncb— Dtr- 
PLiCATB  OF  Weapon. 

Where  it  appeared  that  defendant  had 
thrown  away  or  concealed  the  automatic  revol- 
ver which  he  had  used,  a  duplicate,  identified  as 
the  same  as  that  used  by  defendant,  was  ad- 
miasible  as  bearing  on  the  character  of  the 
weapon  used,  in  connection  with  the  other  evi- 
dence, going  to  the  question  of  intent. 

7.  Homicide  <e=>155  —  Shootino  Without 
•  Provocation— Evidence. 

Where  a  homicide  was  committed  by  shoot- 
ing without  provocation,  the  jury  mifht  consider 
that,  after  the  first  shot  had  taken  effect  and 
deceased  was  falling,  defendant  shot  again. 

Appeal  from  Court  of  Oyer  and  Terminer, 
Cumberland  County. 

Archie  Miller  was  convicted  of  murder  in 
the  first  degree,  and  he  appeals.    Affirmed. 

The  following  is  the  opinion  of  Sadler,  P.  J, 
on  motion  for  new  trial  in  the  court  of  Oyer 
and  T'erininer: 

Archie  Miller  was  indicted  for  the  murder  of 
one  BeiBser,  a  railroad  officer.  He  was  defend- 
ed by  two  of  the  ablest  members  of  the  local 
bar,  assigned  1-r  the  court  under  the  provisions 
of  the  act  of  March  22,  1907  (P.  L.  31),  and  in 
addition  by  counsel  from  another  state  selected 
by  his  family.  The  case  was  carefully  present- 
ed. The  jury  rendered  a  verdict  of  guilty  of 
murder  of  the  first  degree,  and  in  this  ue  court 
concurs. 

Reasons  for  a  new  trial  and  in  arrest  of  lodg- 
ment have  been  presented  and  argued,  and  are 
now  before  us  for  consideration. 

The  first  three  alleged  the  verdict  to  be  against 
the  law,  the  evidence,  the  weight  of  the  evi- 
dence, and  the  charge  of  the  court,  and  can  be 
considered  together.    None  can  be  sustained. 

[I]  The  evidence  showed  that  the  defendant 
came  from  the  South  and  obtained  work  in  Jer- 
sey City.  While  there  be  determined  to  return 
home,  and  joined  with  him  as  a  companion,  one 
Jasper  Fletcher.  Before  starting  he  procured 
for  the  latter  a  45  Colt  revolver  in  which  lead 
bullets  were  used.  For  himself  he  purchssed  a 
new  Colt  automatic  revolver,  and  steel-jacketed 
bullets.  At  that  time  he  declared  his  nurpose 
to  see  that  no  "bull"  would  get  him  on  his  road 
home.  They  left  Jersey  City  by  freight,  finally 
reaching  Uighspire.  From  that  point  they  went 
by  foot  to  Uarrisburg,  and  thence  across  the 
bridge  to  the  Cumberland  county  side  and  to  the 
tracks  of  the  Northern  Central  Railroad.  Pro- 
ceeding to  the  north,  a  tramp  was  met,  who  told 
them  of  being  driven  off  the  track,  and  that  if 
they  went  on  they  would  be  arrested.  The  de- 
fendant used  a  coarse  expression  in  regard  to 
the  "bulls,"  but  proceeded.  At  that  time  the 
officers  were  not  in  sight.  Miller  then  put  bade 
his   cap,    removed   his   revolver   from   his   right 

Socket — he  was  left-handed — took  it  into  his  left 
and,  and  there  held  it  under  the  apron  of  the 
overalls  he  was  wearing.  Thus  prepared,  he 
continued  on  bis  way  until  in  sight  of  the  offi- 
cers. Beisser  came  from  the  third  to  the  second 
track  in  f»ont  of  Miller,  and  when  from  15  to 
20  feet  away  (»lled,  "Where  are  yon  going"? 


^=9FDr  other  cues  see  uune  topic  and  KBT-NUMBER  in  all  Key-Numbered  Digests  and  Indszac 


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In  answer,  Miller  pulled  the  prepared  revolver, 
and  shot,  aayintr.  That  is  where  I  am  coing. 
When  the  officer  was  falling  he  shot  him  a  sec- 
ond time,  and  then  shot  the  second  officer  who 
was  on  the  track  above.  From  the  evidence, 
the  jury  was  clearly  justified  In  finding,  as  it 
did,  that  no  other  words  had  passed,  and  that 
no  attempt  had  been  made  by  Beiaser  to  either 
arrest  or  assault  the  defendant.  After  falling, 
Beisser  turned  on  his  side,  pulled  out  his  re- 
volver, and  shot  after  the  fleeing  defendant, 
until  he  fell  back  dc"A  Miller  was  captured 
about  one-half  mile  from  the  scene  of  the  oc- 
currence. In  the  meantime  he  had  disposed  in 
some  way  of  his  revolver.  His  companion, 
Fletcher,  who  had  run  at  the  first  shot,  was 
likewise  found.  He  had  thrown  his  revolver 
into  the  river.  It  was  found  with  no  bullets 
exploded.  Those  in  his  gun  were  lead,  while 
Miller  used  steel- jacketed  ones,  the  same  as 
found  in  the  body  of  Beisser  and  the  leg  of 
Chubb.  There  was  practically  no  contradiction 
of  any  of  the  facts  above  narrated.  Miller  him- 
self did  not  take  the  stand. 

[2]  The  defense  was  insanity.  The  evidence 
to  support  even  a  suspicion  of  the  same  was  far 
from  convincing.  The  mother  testified  to  va- 
rious acts  of  badness  during  the  youth  of  the 
defendant,  and  gave  it  as  her  opinion  that  he 
was  insane.  And  a  Dr.  Jenkins,  keeper  of  a  re- 
formatory in  which  Miller  was  confined  from  the 
age  of  12  to  14,  gave  a  like  opinion.  Dr.  Johns- 
ton, a  colored  physician  of  Charleston,  S.  C,  and 
the  family  doctor,  gave  it  as  his  opinion  that 
the  defendant  was  suffering  from  dementia  pre- 
cox, and  that  he  could  not  distinguish  between 
right  and  wrong  when  "he  had  an  expansive  mo- 
ment" He  had  not  seen  the  defendant  for  three 
years  before  the  trial,  nor  bad  the  mother  seen 
him  for  months,  or  Dr.  Jenkins  for  years.  The 
mental  condition  was  described  as  hereditary, 
and  evidence  was  offered  to  show  that  the  grand- 
father became  insane  at  06  and  that  a  brother 
was  confined  in  an  asylum.  The  mother  and  the 
doctor  stated  that  as  a  boy  Miller  was  afraid 
of  things  without  cause.  From  this  the  jury 
was  asked  to  find  that  he  was  insane  when  he 
shot  Beisser,  and  that  he  was  suffering  from 
some  indefinite  delusion  when  he  so  acted. 

Every  act  and  circumstance  proven  in  the  case 
showing  the  conduct  of  Miller  immediately  prior 
to  and  at  the  time  of  the  murder  negatived 
this  contention.  Two  experts  for  the  common- 
wealth testified  that,  admitting  as  true  every 
fact  testified  to  in  defense,  there  was  no  indica- 
tion of  insanit7  in  their  opinion. 

The  expert  tqr  the  defendant  declared  that  he 
(MiUer)  could  distinguish  between  right  and 
wrong,  except  during  an  "expansive  moment," 
but  that  such  a  mental  condition  was  existing 
when  the  killing  occurred  was  absolutely  with- 
out support  in  the  evidence.  Though  this  was 
the  view  of  the  court  when  the  case  was  tried, 
and  still  is,  yet  every  possible  instruction  which 
could  be  of  benefit  to  the  defendant  was  given. 
In  answer  to  the  points  on  delusion,  the  jury 
was  permitted  to  nnd  such,  from  the  evidence, 
if  they  could,  though  the  court  would  have  been 
folly  Justified  nnder  the  authorities  in  with- 
drawing the  matter  entirely  from  its  considera- 
tion. Commonwealth  v,  Henderson,  242  Fa. 
372,  89  AtL  567. 

A  careful  review  of  all  the  evidence  leads  to 
the  condwdon  that  the  jury  was  fully  justified 
in  finding  that  the  killing  was  willful,  deliber- 
ate, and  premeditated,  and  was  done  by  defend- 
ant while  fully  conscious  of  his  act,  with  power 
to  distinguish  between  right  and  wrong,  and 
not  under  the  control  of  any  irresistible  im- 
pulse or  delusion. 

Complaint  is  made  of  the  answers  to  points 
3.  11,  12,  and  10  presented  by  the  defendant. 
These  were  all  affirmed  as  abstract  propositions, 
and  the  jury  told  to  apply  the  legal  principle 
therein  stated,  if  the  facts  upon  which  the  same 
were  predicated  were  found  to  be  true.     All 


fonr  were  based  on  th«  assumption  that  the  evi- 
dence justified  a  finding  that  the  defendant  was 
acting  under  some  delusion  that  he  was  in  fear 
of  deatb  or  great  bodily  barm.  There  was  noth- 
ing in  the  evidence  to  justify  soch  a  conclusion, 
though  it  was  left  to  the  jnry.  The  court  would 
have  been  fully  justified  in  refusing  the  points. 
Commonwealth  v.  Henderson,  242  Pa.  .372,  89 
Atl.  567;  Commonwealth  v.  Calhoun,  238  Pa. 
474,  80  Atl.  472.  Any  assumption  of  delusion 
would  necessarily  have  been  drawn  from  the 
proof  that  Miller  as  a  child  was  needlessly 
afraid  of  things.  The  testimony  as  to  this  cov- 
ered a  period  years  before  the  killing.  Not  a 
word  to  sliow  impaired  mental  condition  was 
offered  for  a  period  more  than  three  years  be- 
fore, while  the  testimmiy  of  the  acts  and  «»- 
duct  of  Miller  immediately  before  and  at  the 
time  of  the  killing  showed  him  to  be  fully  con- 
scious of  his  actions  and  surroondings.  In  the 
answers  to  the  points  oomplained  of  the  defend- 
ant received  more  favorable  treatment  than  he 
had  the  right  to  demand. 

The  sixth  point  was  affirmed  as  stated.  So 
that  the  jury  might  not  get  the  impression  from 
so  doing  that  the  fact  that  the  weapon  was 
deadly  could  not  be  considered  by  them  we  stat- 
ed that  from  its  use  the  intention  may  be  infer- 
red. This,  in  connection  with  the  remainder  of 
the  point  affirmed,  was  an  introduction  [instruc- 
tion] that  it  should  I>e  considered  with  all  the 
circumstances  of  the  case  in  determining  the  in- 
tent We  do  not  think  the  jury  could  have  mis- 
understood this.  Later  in  the  charge  the  wei^t 
to  be  given  to  the  fact  that  the  weapon  was 
deadly  was  carefully  defined.  "When  death  en- 
sues from  the  use  of  a  deadly  weapon,  the  jury 
must  scan  closely  the  conduct  of  both  parties, 
taking  into  consideration  the  character  of  the 
weapon,  the  manner  of  its  use,  and  the  time  of 
its  use,  the  place  of  its  use,  and  the  circum- 
stances attending  it,  and  by  a  careful  survey 
of  the  evidence  the  jury  must  endeavor  to  ar- 
rive at  the  true  cause  which  prompted  the  fatal 
shot  or  shots."  And  further,  in  the  next  para- 
graph we  said:  "Again,  gentlemen  of  the  jury, 
the  nature  of  the  weapon  and  the  place  and 
character  of  the  wounds  are  important  and 
should  be  considered  by  you.  Was  the  weapon 
a  deadly  weapon?  The  deadliness  of  the  weap- 
on, gentlemen,  tends  to  indicate  the  intention 
with  which  it  is  used.  The  place  or  places 
where  the  wound  or  wounds  are  infiicted  tend 
also  to  throw  light  on  the  intention  with  which 
the  slkots  were  fired." 

[31  As  we  understand  the  authorities,  and  as 
we  instructed,  the  inference  of  the  intent  to  kill 
may  be  drawn,  not  solely  from  the  fact  that  the 
weapon  was  deadly,  and  used  upon  a  vital  part, 
but  the  fact  that  it  was  such  and  was  so  used 
is  to  be  considered  with  all  the  circumstances  in 
reaching  a  determination  as  to  the  intent,  and 
this  is  what  the  jur^  was  told. 

The  eighteenth  point  was  affirmed  as  stated. 
The  wording  of  the  same  was  to  the  mind  of 
the  court  confusing.  So  that  the  jury  might  not 
misunderstand,  the  court  repeated  in  different 
language  the  two  propositions  included,  and  we 
think  correctly.  A  mere  doubt  as  to  insanity 
does  not  justify  an  acquittal  on  that  ground 
Commonwealth  v.  Sushinskie,  242  Pa.  406,  8^ 
Atl.  504;  Commonwealth  v.  Henderson,  242  Pa. 
372,  89  Atl.  667 ;  Commonwealth  v.  Bamer,  19& 
Pa.  335,  49  Att  60. 

[4]  The  answer  to  the  seventh  point  was  as 
favorable  to  the  defendant  as  could  be  demand- 
ed. We  could  not  affirm  without  qualification 
the  statement  that  a  reasonable  doubt  as  to  mo- 
tive prevented  a  conviction  of  a  higher  grade  of 
homicide,  than  that  of  second  degree.  Such  is 
not  the  law.  Lanahan  v.  Commonwealth,  84 
Pa.  80;  Commonwealth  v.  Danz,  211  Pa.  507, 
60  Atl.  1070. 

[5]  This  disposes  of  such  objections  to  the 
charge  and  points  as  have  been  specified.  An 
additional  error  was  suggested  on  the  argument, 


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In  that  the  Jury  was  prejndiced  nndoly  by  the 
charge  of  the  court  in  saying  that  it  was  not 
to  Im  "deterred  from  a  true  finding  by  any 
thought  of  possible  consequences  of  the  verdict." 
The  SBiue  objection  has  been  passed  upon  and 
held  to  be  without  merit  by  the  Supreme  Court. 
Commonwealth  ▼.  Webb,  252  Pa.  187,  97  Ati. 
189;  Coyle  v.  Commonwealth,  100  Pa.  573,  46 
Am.  Rep.  307. 

[6]  We  are  unable  to  find  that  error  was  com- 
mitted in  passing  upon  the  challenges  for  cause 
interposed  when  jurors  were  examined  on  their 
Ywr  dire.  Nor  do  we  see  anything  prejudicial 
to  the  defendant  in  the  rulings  upon  the  evi- 
dence. But  one  point  therein  is  worthy  of  men- 
tiMi.  The  defendant  used  a  45-caliber  auto- 
matic Colt  reyoWer,  but  threw  the  same  away 
in  some  concealed  place  after  the  killing.    A  du- 

Slicate  was  produced,  which  was  identified  by 
leteher  as  in  all  re8pect4B  the  same  as  carried  by 
Miller.  This  fac  simile  was  offered  in  evidence 
80  that  the  jury  might  consider  the  character  of 
weapon  used,  which  they  had  the  right  to  do  In 
connection  with  the  other  evidence  in  the  case. 
In  passing  upon  the  question  of  intent.  The  du- 
plicate having  been  proven  to  be  identical,  the 
admission  was  proper.  "In  any  case  where  the 
nature  and  properties  of  an  article  require  con- 
sideration by  the  jury,  it  is  proper  to  submit  a 
duplicate  or  fac  simue  conveying  a  correct  im- 
pression." 17  Cyc.  293:  Commonwealth  v.  Fry, 
198  Pa.  379,  48  Atl.  257. 

Since  the  argument  of  this  case,  and  the  prep- 
aration of  this  opinion,  additional  reasons  hare 
been  filed  by  counsel  for  the  defendant  An  ex- 
amination of  the  same  will  show  the  majority 
to  be  unsubstantial  and  trivial.  The  instruc- 
tions as  to  self-defense  are  the  same  as  those 
approTed  by  the  Supreme  Court  in  Common- 
wealtJi  T.  be  Felippis,  245  Pa.  612,  91  Atl. 
1050,  and  those  as  to  insanity  were  approved  in 
Commonwealth  v.  Calhoun,  238  Pa.  474,  86  Atl. 
472.  It  is  needless  to  cite  authorities  to  show 
the  rule  in  Pennsylvania  to  be  that  the  prisoner 
must  satisfy  the  jury  by  fairly  preponderating 
evidence  of  his  insanity,  to  entitle  him  to  an  ac- 
quittal on  this  ground.  The  last  reported  case 
upon  the  subject  uses  the  same  words  that  are 
here  complained  of.  Commonwealth  v.  Sushins- 
kie,  242  Pa.  406,  80  AtL  564. 

[7]  Impressed  with  the  importance  of  the  de- 
cision to  the  defendant,  we  have  examined  the 
evidence  and  charge  with  care,  both  as  to  mat- 
ters the  subject  of  exception,  and  those  not  spe- 
cifically complained  of,  and  are  convinced  that 
no  prejudicial  error  was  committed.  The  con- 
clusion of  the  presence  of  an  intent  to  kill  from 
all  th«  dicumatanoes  wu  jostifled.    The  delib- 


eration and  premeditation  appeared  in  the  prep- 
aration of  the  gun  for  use  before  the  deceased 
was  in  sight,  but  after  Miller  was  notified  that 
he  was  farther  up  the  track.  The  shooting  was 
without  provocation,  and  the  jury  properly  took 
into  consideration  that,  after  the  first  ^ot  had 
taken  effect,  and  the  deceased  was  falling,  he 
shot  again.  Commonwealth  ▼.  Digeso,  254  Pa. 
296,  08  Aa  882;  Commonwealth  v.  West,  204 
Pa.  68,  53  Atl.  542.  The  defense  of  insanity 
was  disregarded  by  the  jury,  and  it  was  a 
question  for  it  to  determine.  That  the  verdict 
might  have  been  a  different  one  is  no  reason  for 
judicial  interference,  even  if  the  court  was  so 
inclined.  Commonwealth  v.  Danz,  211  Pa.  507, 
ftO  Atl.  1070;  Commonwealth  v.  Deitrick,  221 
Pa.  7.  70  Ati.  276. 

The  law  was  fully  explained  and  an  opportu- 
nity given  to  the  defendant  to  secure  further  in- 
structions, if  desired.  Commonwealth  v.  Wash- 
ington, 202  Pa.  148,  51  AtL  750.  There  was 
evidence  which  justified  the  verdict  of  murder 
in  the  first  degree,  and  no  substantial  reason 
has  been  shown  why  a  new  trial  should  be 
granted,  and  the  motion,  therefore,  is  overruled. 
No  error  apparent  upon  the  face  of  the  record 
has  been  averred,  or  appears,  and  the  same  dis- 
position of  the  motion  in  arrest  of  judgment  is 
therefore  made. 

Verdict  of  guilty  of  murder  of  the  first  de- 
gree, upon  which  sentence  of  deatb  was  pass- 
ed.   Defendant  appealed. 

Argued  before  MESTRHZAT,  POTTER, 
MOSCHZISKER,  FRAZBR,  and  WALUNG, 
JJ. 

Julius  L.  Mitchell,  of  Brooklyn,  N.  Y.,  and 
Fillmore  Maust  and  Thos.  E.  Vale,  both  of 
Carlisle,  for  appellant.  WilUain  A.  Kramer, 
of  Carlisle,  George  E.  Lloyd,  Dlst  Atty.,  of 
Mechanicsburg,  and  John  D.  Faller,  of  Car^ 
lisle,  for  the  Commonwealth. 

PER  CURIAM.    The  dear  and  convincing 

opinion  of  the  learned  court  below,  overruling 
tlie  motions  for  a  new  trial  and  in  arrest  of 
judgment,  shows  that  this  record  Is  clear  of 
reversible  error,  and  that  the  several  assign- 
ments are  without  merit. 

The  Judgment  is  affirmed ;  and  It  is  wder- 
ed  that  the  record  be  remitted  to  the  coort 
below  for  the  purpose  of  execution  according 
to  lav. 


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1009 


VILLA.  T.  THATEH. 

(Snpreme  C!oart  of  Vermont    Washington. 
Oct.  8, 1917.) 

1.  Gaicb  «s»6— Powebs  of  Game  Wajsdkns. 

A  game  warden  is  neither  the  state  nor  a 

general  public  officer  thereof,  and  his  authority 
1  the  protection  of  game  is  wholl;  derived  from 
the  statutes,  and  expressly  defined  by  Acts  1912, 
No.  201,  {  73. 

2.  Animam  <^=>84— Powebb  o»  Game  Ward- 
ens— Shooting  Dogs. 

In  view  of  the  repeal  of  Acts  1898,  No.  106, 
t  3,  which  authorized  a  private  person  to  kill 
dogs  chasing  deer,  a  game  warden,  having  no 
greater  authority  in  that  respect  by  virtue  of 
his  office  than  a  private  person,  has  no  right 
to  kill  dogs  while  chasing  deer. 

3.  Gave  €=><>— Pbksebvation  of  Gaji»— Pub- 
lic Nuisance. 

Nothing  is  to  be  deemed  a  public  nuisance, 
solely  by  reason  of  its  destruction  of  wild  game, 
unless  tne  statutes  so  declare  it. 

4.  Tbial  (S=»286— Shooting  Doofr-LiABiUTX 
—Instructions. 

Where  a  game  warden  shot  dogs  which  were 
chasing  deer,  an  instruction  to  find  for  the  own- 
er of  the  dogs  at  least  nominal  damages  was 
merely  intended  to  state  defendant's  liability  as 
a  matter  of  law. 

Exceptions  from  Montpelier  Municipal 
Court;  Brwln  M.  Harvey,  Judge. 

Action  by  Victor  Villa  against  Guy  M. 
Tliayer.  Judgment  for  plaintiff,  and  defend- 
ant excepts.     Affirmed. 

Argued  before  WATSON,  O.  J.,  and  HA- 
SELTON,  POWERS,  TAYLOR,  and  MILES, 
JJ. 

Charles  B.  Adams,  of  Waterbury,  and  J. 
Ward  Carver,  of  Barre,  for  plaintiff.  H.  J. 
Oonant  and  F.  L.  Laird,  both  of  Montpelier, 
for  defendant. 

HASBITON,  J.  This  is  an  action  of  tort. 
In  wUch  the  plaintiff  recovered  damages  for 
the  shooting  of  two  dogs,  duly  licensed,  regis- 
tered, and  collared.  On  trial  the  defendant 
admitted  shooting  the  dogs,  but  claimed  to 
Justify  such  shooting  on  the  ground  that  he 
was  a  deputy  game  warden,  and  as  such  shot 
the  dogs  while  they  were  chasing  a  wild  deer, 
and  that  the  defendant  could  not  reasonably 
protect  the  deer  in  any  other  manner  than  by 
shooting  the  dogs.  The  court  held  that  evi- 
dence to  support  these  claims  constituted  no 
defense,  and  the  defendant  excepted. 

[1]  At  one  time  our  statutes  permitted  any 
person  to  kill  any  dog  found  hunting  a  deer. 
Acts  1898,  Na  108,  {  3;  Mossman  v.  Bost> 
ridge,  76  Vt  409,  S7  AtL  995.  But  this  pro- 
vision of  the  law  was  soon  rqtealed,  and  lias 
never  been  restored.    Acts  1904,  No.  130;  P. 

5.  632S;  Acte  1912,  No.  201,  H  13,  17.  The 
defendant,  however,  claimed  and  claims  that 
it  was  within  tiis  aatborlty  as  a  deputy  game 
warden  to  shoot  the  dogs  wUle  <diaaing  a 
deer.  He  does  not  dalm  tliat  he  Iiad  that 
authority  by  virtue  of  any  express  statutory 
provlston,  for  there  is  no  such  provision,  and 
the  powers  and  duties  of  game  wardens  are 


carefully  defined ;  but  he  claims  that,  as  wild 
deer  within  the  state  are  the  common  prop- 
erty of  the  people  of  the  state  (State  v.  Tberi- 
ault,  70  Vt  -617,  41  AU.  1030,  48  L.  It  A.  290, 
67  Am.  St  Rep.  695 ;  Payne  v.  Sheets,  75  Vt 
335,  66  AU.  656 ;  State  v.  NUes,  78  Vt  266, 
62  Atl.  796,  112  Am.  St  Rep.  917;  Zanetta  v. 
BoUes,  80  Vt  345,  67  Atl.  818),  the  state  may 
do  in  defense  of  such  property  what  a  pri- 
vate person  may  do  In  defense  of  Iiis  private 
property.  But  a  game  warden  Is  not  the 
state,  nor  a  general  public  officer  of  the  state, 
and  Mb  authority  in  the  protection  of  game 
is  wholly  derived  from  the  statutes,  and  is 
expressly  defined  thereby.  Acts  1912,  No. 
201,  S  73.  If  it  is  desirable  that  game  ward- 
ens should  have  authority  to  do  what  the 
defendant  here  did,  it  is  for  the  General  As- 
sembly, and  not  for  the  courts,  to  confer  it 
The  claim,  above  stated,  was  raised  by  an 
exception,  which,  however,  is  of  no  avail. 

[2]  The  defendant  in  his  brief  says,  in 
substance,  that  on  trial  he  offered  to  show 
that  these  dogs  had  before  chased  deer,  and 
he  claims  that,  as  deer-cbaslng  dogs,  they 
were  public  nuisances,  and  might  lawfully 
be  shot  by  any  one.  We  do  not,  however,  find 
in  the  record  any  exception  that  fairly  calls 
for  the  consideration  of  this  claim.  But,  if 
we  treat  the  question  as  raised  by  any  excep- 
tion to  any  ruling,  holding,  or  instruction  of 
the  court  adverse  to  this  claim  of  the  defend- 
ant, the  result  is  the  same.  Section  8,  Na 
108,  of  the  Acts  of  1898,  already  referred 
to,  forbade,  among  other  things,  the  keeping 
of  deer-hunting  dogs,  but  restricted  the  right 
of  a  private  person  to  kill  a  dog  by  virtue  of 
that  statutory  provision  to  the  killing  of  a 
dog  found  in  pursuit  of  a  deer.  The  other 
provisions  of  the  section  related  only  to  the 
penalty  of  the  statute.  Mossman  v.  Bost- 
ridge,  76  Vt  409,  57  Atl.  995.  It  cannot  be 
held  that  the  repeal  of  the  only  clause  giving 
a  private  person  the  right  to  kill  for  the  ihto- 
tection  of  deer  is  consistent  with  the  right 
to  kill  in  some  circumstances  for  such  pro- 
tection. 

[3, 4]  The  enforcement  of  the  fish  and  game 
law  is  in  most  respects  by  way  of  visiting 
penalties,  in  some  cases  severe,  upon  those 
who  violate  it  In  a  few  instances  forbidden 
contrivances  for  taking  fish  and  game  are 
declared  to  be  the  public  nuisances,  which 
any  person  may  destroy,  and  nothing  is  to 
be  deemed  a  public  nuisance  solely  by  reason 
of  its  relation  to  the  destruction  of  wild 
game,  unless  the  statute  law  declares  it  to  be 
so.  The  court  directed  the  Jury  to  find  a 
verdict  for  the  plaintiff  for  at  least  nominal 
damages,  saying: 

"The  usual  roles  awlicable  to  causes  of  this 
kind,  that  the  burden  is  upon  the  plaintiff  to 
make  out  his  case  by  a  fair  balance  of  the  tvi- 
dence,  do  not  apply,  because  the  court  diarges 
you,  as  a  matter  of  law,  that  you  shall  find  at 
least  nominal  damages  for  the  plaintiff." 


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To  this  the  defendant  excepted,  and  now 
says  that  It  was  error,  since  the  only  ques- 
tion left  to  the  Jury  was  the  question  of  the 
yalue  of  the  dogs,  and  that  on  tliat  question 
the  Durden  of  proof  was  on  the  plaintiff. 
But  the  court  was  not  talking  about  damages, 
but  about  the  making  out  of  a  case,  that  is, 
the  question  of  the  defendant's  llabUity,  and 
was  simply  explaining  to  the  Jury  why  he 
did  not  submit  that  question  to  their  determi- 
nation. The  charge  on  the  question  of  dam- 
ages was  not  prejudicial. 

Judgment  afBrmed. 

(»i  vt  SSS) 
STEFFANAZZI  et  al.  v.  ITALIAN  MUT. 

BEN.  SOC. 

(Supreme  Conrt  of  Vermont.    Washington. 

Oct.  2,  1917.) 

1.  Beneficial  Associations  «=>! 0(6)— Judi- 
cial Supervision— Dissolution— GnouNDS. 

Where  the  plaintiffs'  property  rights  were 
riolated  by  their  wrongful  expulsion  from  de- 
fendant beueiit  society,  courts  may  interfere ; 
but  the  wrongful  expulsion,  in  and  of  itself,  did 
not  aSord  grounds  for  a  decree  of  dissolution. 

2.  Appeal  and  Ebrob  <3=1009(1)— Dbckee  of 
Chasceixob— Extent  of  Review. 

In  chancery  appeals,  the  Supreme  Court 
takes  the  record  as  it  finds  it,  and  from  that 
alone  determines  whether  the  decree  below  is 
right  or  wrong,  and  where  it  does  not  plainly 
appear  from  the  record  that  the  cbaucellor's 
decision  is  erroneous,  the  decision  will  be  af- 
firmed. 

Appeal  In  Chancery,  Washington  County; 
Zed  S.  Stanton,  Chancellor. 

Bill  by  Anselmo  Steffanazzl  and  others 
against  the  Italian  Mutual  Benefit  Society. 
From  a  decree  awarding  partial  relief,  plaln- 
tlfCs  appeal.     Afiirmed  and  remanded. 

Argued  before  WATSON,  C.  J.,  and  HA- 
SBLTON,  POWERS,  TAYLOR,  and  MILES, 
JJ. 

S.  Hollister  Jackson,  of  Barre,  for  appel- 
lants. J.  Ward  Carver,  of  Barre,  for  appel- 
lee. 

POWERS,  J.  The  plaintiffs  were  wrong- 
fully expelled  from  the  defendant,  an  unin- 
corporated association  organized  for  moral, 
benevolent,  and  social  purposes,  and  brought 
this  bill  in  chancery,  seeking  therein  rein- 
statement to  membership,  a  dissolution  of  the 
society,  and  a  distribution  of  its  funds.  They 
appeal  from  a  decree  in  their  own  favor. 
This  decree  provides  for  their  reinstatement 
as  members  of  the  society,  and  restitution 
to  all  rights  and  privileges  Incident  to  such 
membership,  but  It  does  not  dissolve  the  so- 
ciety. Of  this  omission  the  plaintiffs  com- 
plain. 

[11  That  a  court  of  equity  has  Jurisdiction 
to  supervise  to  some  extent  the  affairs  of  as- 
sociations of  this  character,  and  may,  on  a 
proper  shbwlng.  even  decree  a  dissolution,  is 
not  here  denied.  This  Jurisdiction  Is  not. 
however,  so  extensive  as  In  cases  of  corpora- 
tions proper,  and  is.  limited  to  the  protection 


of  the  property  ilgbtB  of  a  member.  So,  If  a 
member  Is  wrongfully  expelled,  a  court  of 
equity  is  powerless  to  Interfere,  unless  be  is 
thereby  deprived  of  a  right  of  property.  Rig- 
by  V.  Connol,  L.  R.  14  Ch.  D.  482;  Burke  v. 
Roper,  79  Ala.  138.  It  is  plain  enough  that 
these  plaintiffs*  property  rights  were  violat- 
ed by  their  wrongful  expulsion,  and  rein- 
statement was  their  legal  right.  But  tlie 
question  of  dissolution  is  another  matter. 
Courts  are  reluctant  to  interfere  with  the 
continuance  of  these  associations,  and  wrong- 
ful expulsion  does  not.  In  and  of  itself,  afford 
sufficient  ground  for  a  decree  of  dissolution. 
Burke  v.  Roper,  supra;  Thomas  v.  Ellmaker, 
1  Pars.  Eq.  Cas.  (Pa.)  98;  Fischer  v.  Raab, 
57  How.  Prac.  (N.  Y.)  87.  So  far  as  Gorman 
V.  Russell,  14  Cal.  531,  and  18  Cat  688,  re- 
lied upon  by  the  plaintiffs.  Is  to  the  contrary, 
it  is  unsound. 

[2]  It  is  no  doubt  true  that  dissensions 
might  become  so  violent  and  differences  so 
irreconcilable  that  dissolution  would  be  de- 
creed. Lafond  V.  Deems,  52  How.  Prac.  (N. 
T.)  41.  '  And  It  is  argued  that  so  much  bit- 
terness has  been  engendered  between  the  ma- 
jority and  minority  members  of  this  society 
that  the  plaintiffs  cannot  avail  themselves 
of  the  decree  of  reinstatement  without  dan- 
ger of  disorder  and  violence.  But  the  find- 
ings do  not  Justify  tliis  claim  and  the  evi- 
dence la  not  before  us.  We  again  remind 
counsel  tliat  in  chancery  appeals  we  sit  in 
error,  only.  We  take  the  record  as  we  find 
it,  and  from  that  alone  determine  whether 
the  decree  below  is  right  or  wrong.  We  can- 
not say,  from  the  record  before  us,  that  it  so 
plainly  appears  therefrom  that  the  Internal 
troubles  of  this  society  are  of  such  a  seri- 
ous and  irreconcilable  character  tliat  it  can- 
QOt  longer  carry  out  the  purposes  of  its  or- 
ganization, or  that  its  offense  was  of  such 
a  flagrant  character  that  it  lias  forfeited  its 
right  to  exist,  that  the  decree  below  was,  in 
the  respect  complained  of,  erroneous. 

The  plaintiffs  Insist  that  they  ought  to 
have  damages  for  being  wrongfully  deprived 
of  their  membership.  But  the  decree  is  broad 
enough  to  restore  tbem  to  all  their  rights, 
and  to  enable  them  to  share  in  all  the  bener 
fits  tluit  have  accrued  during  the  interval 
since  thdr  expulsion.  This  is  apparently  all 
they  are  entitled  to.  If  any  other  ben^ts, 
social  or  otherwise  (see  Cnrrler  v.  Catholic 
Order  of  Foresters,  87  Vt.  83,  88  Aa  625). 
have  been  lost  by  thein,  the  findings  do  not 
show  It  If,  as  they  say  tn  the  brief,  they 
flbd  themselves  out  of  poclcet  on  account  of 
this  suit,  and  their  d«cree  is  "una  vlttorie 
morale,  nlente  piu"— &  moral  victory,  noth- 
ing more — ^tbey  may  find-  some  measure  of 
comfort  in  the  suggestion  that  this  is  not  an 
infrequent  result  of  a  lawsuit. 

Decree  affirmed,  and  cause  remanded,  for 
such  further  proceedings,  not  Inconsistent 
herewith,  as  may  be  required. 


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W  vt.  «) 


PHELPS  ▼.  DTLBT. 


(Supreme   Court  of  Vermont     WaaUngtoii. 
Oct  2,  1917.) 

1.  Witnesses  «s>58(3,  4)  —  Husband  and 
WiFB— Compete  N  cY. 

Under  P.  S.  1592,  providing  that  husband 
and  wife  shall  be  competent  witnesses  for  or 
against  each  other,  except  that  neither  shall  be 
allowed  to  testify  against  the  other  as  to  a 
statement  or  other  communication  to  the  other 
or  to  another  person,  nor  shall  either  be  allowed 
to  testify  as  to  a  matter  which  would  lead 
to  a  violation  of  marital  confidence,  in  a  hus- 
band's action  for  the  alienation  of  his  wife's 
affections  and  crim.  con.,  the  wife  was  a  com- 
petent witness  for  the  husband  as  to  her  rela- 
tions with  defendant ;  she  not  testifying  against 
the  husband,  and  her  testimony  involving  do 
breach  of  marital  confidence. 

2.  Witnesses  $=s>251  —  Examination— BxX- 
SONS  roB  Recolxjection. 

In  a  husband'a  action  for  alienation  of  his 
wife's  affections  and  crim.  con.,  where  a  witness 
testified  that  he  saw  defendant  and  plaintiff's 
wife  riding  together,  and  that  goon  afterwards 
he  met  the  wife  and  talked  with  her,  his  tes- 
timony that  this  conversation  was  in  refer- 
ence to  the  whereabouts  of  her  husband  should 
not  have  been  admitted  on  the  ground  that  it 
enabled  the  witness  to  fix  the  date  of  the  oc- 
currence, where  nothing  was  said  or  done  that 
referred  to  the  date  or  tended  in  any  way  to 
fix  it 

3.  Witnesses  «=»410  —  Right  to  Cobbobo- 
bate  Witness— Extbajudicial  Conduct. 

In  a  husband's  action  for  alienation  of  his 
wife's  affections  and  crim.  con.,  where  the  wife 
testified  for  the  husband,  testimony  that  un  the 
day  following  one  of  the  meetings  with  defend- 
ant to  which  she  testified  she  was  very  pale  and 
nervous  and  broke  down  and  cried  a  good  deal 
should  not  have  been  admitted,  as  it  had  no 
evidentiary  consequence,  except  as  tending  to 
show  her  guilt  and  to  corroborate  her  testimony, 
and  a  party  may  not  corroborate  his  own  wit- 
ness by  showing  extrajudicial  acta,  conduct,  or 
statements. 

4.  TsiAL  ®=>26,  68(1)  —  Keopenino  Cam- 
Postponement  OP  Tbial. 

In  a  husband's  action  for  alienation  of  his 
wife's  affections,  the  wife  testified  for  the  hus- 
band concemiug  a  ride  with  defendant  in  his 
automobile  on  a  certain  road.  Defendant  tes- 
tified that  they  were  away  only  a  few  minutes 
and  went  on  an  entirely  different  road,  and  that 
he  turned  around  at  a  place  where  be  formerly 
bad  a  millyard.  Held  that  after  the  parties 
had  rested,  it  was  within  the  court's  discretion 
to  reopen  the  case  and  admit  testimony  offered 
by  plaintiff  that  the  millyard  was  fenced  on  the 
roadside,  but,  having  done  so,  it  was  error  to 
deny  defendant's  application  for  a  delay  of  the 
trial  in  order  that  he  might  produce  witnesses  to 
meet  this  testimony. 

5.  New  Triai,  «=>21— Gbottnds  —  Denial  of 
Postponejient. 

Where  in  support  of  a  petition  for  new  trial 
because  of  the  denial  of  such  application  defend- 
ant showed  that  be  and  plaintiff's  witness  were 
talking  about  different  sides  of  the  highway  and 
he  produced  a  photograph  making  it  appear 
probable  that  ihe  road  ran  through  the  millyard 
so  that  one  side  was  as  much  the  millyard  as 
the  other,  and  making  it  likely  that  the  jury 
would  take  this  view  of  the  matter,  a  new  trial 
would  be  granted. 

Exceptions     from     Washington     County 
Court;  Fred  M.  Butler,  Judge. 
Action  by  Frank  C.  Pbelps  against  Charles 


H.  Utley.  Verdict  and  judgment  for  plaln- 
tur,  and  defendant  brings  exceptions  and  a 
petition  for  a  new  trial.  Beversed  and  re- 
manded, and  petition  for  new  trial  granted. 
Afgaed  before  WATSON,  O.  J.,  and  HA- 
SEI/TON,  POWERS,  TAYLOR,  and 
MILES,  33. 

3.  Ward  Carver,  of  Barre,  and  Fred  L. 
Laird,  of  Montpeller,  for  plaintiff.  Dutton  & 
Mulcahy,  of  Hardwick,  for  defendant. 

POWERS,  J.  [1]  This  is  an  action  on  the 
case  for  alienation  and  crim.  con.  Much  of 
the  evidence  upon  which  the  plalntlft  relied 
to  estabUsb  his  case  came  from  his  wife,  who 
was  admitted  as  a  witness  subject  to  the  de- 
fendant's exception.  This  was  not  error,  for 
since  the  passage  of  P.  S.  1592,  the  compe- 
tency of  the  wife  as  a  witness  for  her  hus- 
band has  been  the  rule,  and  her  incompe- 
tency, the  exception.  State  v.  Muzzy,  87  Vt 
267,  88  Atl.  895.  So,  notwithstanding  the 
earnest  argument  here  made  that  this  ought 
not  to  be  so  in  a  case  like  this,  it  it  so,  since 
the  wife  did  not  here  testify  against  the  hus- 
band at  all,  and  it  certainly  cannot  be  said 
that  the  telling  of  the  story  of  her  liaison 
with  the  defendant  involved  a  breach  of  mar- 
ital confidence. 

[2]  Exnersom  Hoyt,  a  witness  for  the  plaln- 
tUf,  testified  that  he  saw  Mrs.  Phelps  and  the 
defendant  riding  together  in  the  latter's  auto- 
mobile on  October  20,  1915,  and  that  soon 
after  he  met  the  defendant's  wife  and  talked 
with  her.  Subject  to  the  defendant's  excep- 
tion, he  was  allowed  to  state  that  this  con- 
versation with  Mrs.  Utley  was  in  reference 
to  the  whereabouts  of  her  husband.  This 
testimony  was  admitted  on  the  ground  that  It 
enabled  the  witness  to  fix  the  date  of  the  oc- 
currence. But  it  did  'not  aid  the  witness  in 
this  way.  There  was  nothing  said  or  done 
that  referred  to  the  date  or  tended  in  any 
way  to  fix  it  It  is  not  suggested  that  it  was 
admissible  on  any  other  ground,  and  It 
should  have  been  excluded. 

[3]  A.  D.  KimbaU  was  one  of  the  plaintiff's 
lawyers  and  was  a  witness  in  his  behalf.  He 
testified  tliat  he  and  the  plaintiff  went  to 
Montpeller  to  oonsult  a  lawyer  and  have  a 
suit  brought;  that  this  was  on  November  3, 
1915,  which  was  the  day  after  one  of  the  clan- 
destine meetings  between  Mrs.  Phelps  and 
the  defendant,  as  testified  to  by  her;  and 
that  they  had  an  interview  with  Mrs.  Phelps 
at  her  sister's  house  that  day.  Subject  to 
defendant's  exception,  he  was  allowed  to 
testify  that  on  that  occasion  Mrs.  Phelps  was 
"very  pale  and  nervous,  and  broke  down 
and  cried  a  good  deal."  It  may  be  stated 
broadly  that  a  litigant  may  prove  any  act, 
conduct,  or  statement  on  the  part  of  his  ad- 
versary which  tends  to  corroborate  the  claim 
of  the  former  or  Impeach  that  of  the  latter. 
But  he  cannot  corroborate  himself  or  his 
own  witness  by  showing  extrajudicial  acts, 
conduct,  or  statements  having  that  tendency. 


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(Vt 


He  cannot  show  the  sayings  of  his  witness 
out  of  ooort  to  corroborate  his  testimony 
given  In  court.  Munson  v.  Hastings,  12  Vt 
316,  36  Ani.  Dec.  345;  Glbbs  v.  Llnsley,  13 
Vt  208:  State  v.  Flint,  60  Vt  304,  12  AU. 
526;  Lavlgne  v.  Lee,  71  Vt  167,  42  Atl.  1093; 
State  V.  Turley,  87  Vt  163,  88  Atl.  562.  This 
i-ule  Is  subject  to  an  exception  as  shown  by 
State  V.  ITIlnt,  but  It  does  not  apply  to  the 
case  In  hand.  So  It  would  have  been  error 
to  allow  Kimball  to  testify  that  Mrs.  Phelps 
then  told  lier  story  Just  as  she  had  In  court 
No  more  was  It  proper  to  show  by  the  wit- 
ness an  act  of  Mrs.  Phelps  consistent  with, 
and  so  corroborative  of,  her  testimony.  Green 
V.  State,  96  Ala.  29,  11  South.  47&  It  was 
error  to  receive  this  testimony.  If  Mrs. 
Phelps'  agitation  on  that  occasion  was  of 
any  evidentiary  consequence  whatever.  It 
tended  to  show  her  guilt,  and  so  to  corrobo- 
rate her  as  a  witness.  It  had  no  other  value 
as  evidence.  But  under  the  rule  her  appear- 
ance of  guilt  was  not  admissible  as  evidence 
to  sustain  her  or  condemn  the  defendant  It 
was  a  purely  self-serving  circumstance. 

[4]  Mrs.  Phelps  testified  that  she  went  to 
ride  with  the  defendant  In  his  automobile  on 
the  evening  of  October  16,  1912;  that  they 
started  from  Oatx>t  and  drove  out  on  the 
Walden  Depot  road  some  three  miles,  and  did 
not  return  for  two  or  three  hours,  and  so 
forth.  The  defendant  admitted  that  they 
went  to  ride  that  night  but  Insisted  that 
they  were  away  only  15  or  20  minutes;  that 
they  went  on  an  ^itirely  different  road ; 
that  they  did  not  st(^  anywhere,  and  turned 
around,  without  stopping,  at  a  place  where 
he  formerly  had  a  mlllyard.  The  parties 
rested,  and  the  evidence  dosed  on  Saturday. 
The  court  then  took  a  recess  until  the  fol- 
lowing Tuesday  momfng.  When  the  court 
came  in'  on  Tuesday,  the  plaintiff  asked 
leave  to  withdraw  his  rest  and  to  introduce 
one  Fifield  as  a  witness  to  show  that  the 
mlllyard  above  referred  to  was  fenced  on  the 
roadside  at  the  time  referred  to.  To  this  the 
defendant  objected  on  the  ground  that  If 
admitted,  this  testimony  would  raise  a  new 
Issue  of  fact  that  he  was  taken  by  surprise, 
and  that  U  it  was  admitted,  he  should  be 
irtven  an  opportunity  to  meet  It  This  ob- 
jection was  overruled,  and  the  defendant  ex- 
cepted. Thereupon  the  witness  took  the  stand 
and  testified  that  the  mlllyard  In  question 
was  fenced  on  the  roadside  with  a  wire  fence, 
which  had  stood  tliere  for  about  10  years. 
The  defendant  then  asked  for  a  delay  of  the 
trial  that  he  might  have  time  to  get  witnesses 
to  meet  this  testimony.  This  request  was  de- 
nied, and  the  defentlant  excited. 

It  is  perfectly  apparent  that  it  was  of  vital 
importance,  so  far  as  the  defendant's  version 
Of  the  Incident  of  October  16th  was  con- 
cerned, for  him  to  show  that  this  mlllyard 
was  not  fenced  on  that  date.  For  if  It  was, 
he  could  not  have  turned  around  there  as  he 
stated.      Standing   uncontradicted,    Flfleld's 


testimony  Impeadied  the  defendant  and  must 
have  affected  his  standing  as  a  witness. 
Goodall  V.  Drew,  85  Vt  408,  82  AO.  680. 
Opening  the  case  to  let  Fifield  In  as  a  wit- 
ness was,  of  course,  a  matter  of  discretion. 
So  far  no  error  was  committed.  But  opening 
the  door  to  the  plaintiff  and  closing  it  to  the 
defendant  was  error.  The  witness  stated  a 
new  fact  not  before  in  evidence.  The  first 
opportunity  to  meet  this  fact  was  when  the 
witness  finished.  To  deny  the  defendant's 
application  deprived  him  of  a  substantial 
right  and  his  exception  is  sustained.  38  Cyc. 
1358;  Herrman  v.  Combs,  119  Md.  41.  85  AtL 
1044;  Birmingham  Ry.,  L.  &  Power  Co.  v. 
SaxoiK  179  Ala.  136,  59  Sooth.  684;  Ro<^ 
Island  V.  Starkey,  189  III.  615,  59  N.  R  971; 
Kent  V.  Lincoln,  32  Vt  591 ;  1  Chamb.  Ev.  i 
383. 

[C]  The  defendant  brings  a  petition  for  a 
new  trial  predicating  the  same  on  the  facts 
and  rulings  referred  to  in  the  discussion  of 
the  exception  last  above  treated.  In  support 
of  this  petition  he  makes  It  appear  that  he 
could  have  successfully  met  Flfield's  testi- 
mony, if  he  had  been  given  an  opportunity 
so  to  do.  It  now  sufficiently  appears  that  Fi- 
field was  talking  about  one  side  of  the  high- 
way and  the  defendant  the  other.  When  the 
former  spoke  of  the  mlllyard,  he  referred 
to  the  land  on  the  side  where  the  mill  was; 
when  the  latter  spoke  of  It  he  referred  to 
the  space  on  the  opposite  side  of  the  road.  It 
seems  probable  from  a  photograph  before  us 
that  the  road  ran  through  the  mlllyard,  and 
that  one  side  was  as  much  yard  as  the  other. 
It  is  likely  that  the  Jury  would  Uke  this 
view  of  the  matter.  Ite  petition  is  meritori- 
ous and  should  be  granted. 

Judgment  reversed,  and  cause  remanded. 
PetiUon  for  a  new  trial  granted,  with  costa 
to  the  petitioner. 

(92  vt.  1ST) 
BOSTON  &  M.  R.  B.  v.  UNION  MDT.  FIRB 
INS.  CO. 

(Supreme  Court  of  Vermont    Washington. 
Oct  2,  1917.) 

1.    COVPROUISE  AND   SBTTLEMENT  «=>12— CON- 
STRUCTION OF  AOBEKintNT — FlRE  InSUKANCE. 

Where  the  railroad,  wtiose  locomotive  set  the 
fire,  agreed  with  the  insurers  of  buildings  to  re- 
imburse them  to  the  extent  of  50  per  cent  of  the 
loss,  not  including  expenses  or  discounts,  an 
item,  consisting  of  an  assessment  due  the  in- 
surer from  the  building  owner,  which  the  insurer 
deducted  on  paying  the  loss,  was  not  an  expense 
or  discount,  but  a  valid  debt,  half  of  wliich  was 
payable  by  the  railroad. 

2.   COMFROUISE     AND     SETTUSUEITT    4=>15(1) — 

Prksumptions. 
Agreements,  fairly  entered  into,  for  the  com- 

?ironiise  and  settlement  of  disputed  claims,  are 
avorubly  regarded  in  a  court  of  equity,  and  are 
supported  as  beneficial  In  themselves  and  con- 
ducive to  peace  and  harmony,  when  this  can  be 
Cone  without  working  injustice,  and  does  not 
override  other  principles  upon  which  courts  of 
equity  proceed  in  the  specific  enforcement  of  con- 
tracts. 


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1013 


8.  SPECIFIO  PEBTOBltAHCE  «=a97(l)  —  PBB- 
rOBHANCE  BY  PLAINTIFJ— TEN  DEB— EXCUSE 
FOB  MAKINO. 

Where  the  railroad  whose  locomotive  set  the 
fire  agreed  with  the  insurers  of  buildings  to  re- 
imburse them  to  the  extent  of  50  per  cent,  of 
the  loss,  and  a  dispute  arose  as  to  the  amount 
to  be  paid,  the  act  of  the  insurer  in  bringing 
suit  un  the  alleged  original  liability  was  notice 
of  attempted  rescission  of  the  compromise,  so 
as  to  obviate  necessity  of  tender  by  the  railroad 
before  suing  for  specific  performance  of  the 
agreement. 
4.  SFECino  Pebfobmanck  «=>106(1),  114(4)— 

COMFBOMISE  AOBEEUENT. 

The  insurer  having  sued  on  the  alleged  origi- 
nal liability,  and  the  railroad  having  been  re- 
fused permission  to  plead  the  compromise  agree- 
ment, it  was  proper  for  it  to  ass  specific  pei^ 
formance,  in  doing  which  it  was  enough  to  aver 
its  readiness  and  willingness  to  perform  and  to 
offer  to  do  so. 
fi.  Compromise  and  Setilbiiknt  «=>11— Pbb- 

FOBMA  N  CB— TiMJB. 

No  time  being  fixed  by  a  compromise  and 
settlement  agreement  within  which  it  should  be 
performed,  a  reasonable  time  is  allowed  by  law. 

6.  Specific  Pebfobmance  ^=>62  —  Bioht  to 
Remedt— Pbevbntion  of  Fbaud. 
Where  it  appears  that  a  compromise  and  set- 
tlement had  been  fully  performed  by  certain  of 
the  parties,  so  that  to  permit  another  party  to 
sue  on  the  original  liability  would  be  a  fraud 
on  the  others,  specific  performance  of  the  com- 
promise agreement  should  be  granted. 

Appeal  In  Chancery,  Washington  County; 
B.  L.  Watennan,  Chancellor. 

Bill  by  the  Boston  &  Maine  Railroad 
against  the  Union  Mutual  Fire  Insurance 
Company.  Decree  dismissing  the  bill,  and 
plaintiff  appeals.  Reversed,  and  cause  re- 
manded, with  directions. 

Argued  before  MUNSON,  C.  J.,  and  WAT- 
SON, HASBLTON,  POWERS,  and  TAYLOR, 
JJ. 

George  B.  Young,  ol  Montpelier,  and  Wal- 
ter H.  Cleary,  of  Newport,  for  appellant 
Porter,  Witters  &  Harvey,  of  St.  Johnsbuiy, 
lor  appellee. 

WATSON,  J.  When  this  case  was  here  be- 
fore, the  bill  was  held  suiflcient  on  demurrer, 
and  the  cause  remanded.  83  Vt.  854,  77  AtL 
874.  The  cause  being  then  heard  before  a 
epedal  master,  and  exceptions  to  his  report 
filed  by  the  plaintiff,  the  chancellor  rendered 
a  decree  overruling  the  exceptions  and  dis- 
missing the  bill,  with  costs  to  the  defendant. 
Therefrom  the  plaintiff  appealed. 

The  bill  is  brought  to  enjoin  the  defendant 
from  prosecuting  a  certain  action  at  law 
against  the  plaintiff,  and  for  the  specific  en- 
forcement of  an  agreement  made  between  the 
plaintiff  and  the  defendant  and  six  other  in- 
surance companies  and  Cushman  &  Rankin 
Company.  It  appears  from  the  master's  re- 
port that  on  or  about  May  12,  1905,  the  fac- 
tory, machinery,  and  stock  of  Cushman  & 
Rankin  Company,  located  at  Lyndon,  this 
state,  were  consumed  by  fire,  and  that  the 
defendant  company  and  six  other  Insurance 
companies  were   Insurers    of   the   property 


against  such  loss.  It  was  claimed  by  the  in- 
surers and  the  Insured  that  the  fire  originat- 
ed from  sparks  communicated  by  one  of  the 
plaintitTs  locomotive  engines.  This  claim 
was  denied  by  the  plaintiff.  The  loss  was  en- 
tire. The  insurers  settled  with  the  insured 
on  the  basis  of  a  total  loss,  and  by  agreement 
were  subrogated  to  the  rights  of  the  insured. 
On  November  22,  1905,  the  plaintiff  made  an 
offer  in  writing,  in  the  nature  of  a  compro- 
mise, in  reference  to  the  claims  arising  out 
of  the  burning  of  the  property,  as  follows: 

"We  will  pay  60  per  cent  of  the  actual 
amounts  paid  to  Cushman  &  Rankin  by  the 
insurance  companies,  with  no  allowance  for  ex- 

rises  or  discounts.  We  will  pay  to  Cushman 
Rankin  50  per  cent,  of  their  actual  loss  over 
and  above  the  amount  of  insurance  received  by 
them,  such  loss  to  be  determined  in  the  follow- 
ing manner,  to  wit.    •    •    • " 

This  proposition  was  accepted  by  the  In- 
sured, and  by  all  the  insurers,  including  the 
defendant.  Both  the  plaintiff  and  the  de- 
fendant entered  into  this  agreement,  contin- 
gent upon  all  the  other  parties  coming  into 
the  settlement.  The  exact  amount  of  the  loss 
had  not  then  been  ascertained.  Nothing  was 
said.  In  making  the  offer  or  in  its  acceptance, 
about  any  release ;  but  it  was  vmderstood,  ex- 
pected, and  intended  by  every  party  ttiat,  on 
the  payment  to  the  insurance  companies  of 
50  per  cent,  of  the  amount  paid  by  them  to 
the  insured,  they  would  release  the  plaintiff 
from  any  claim  of  liability  or  damage  they 
might  have  against  the  plaintiff  by  reason  of 
the  burning  of  the  property  of  the  insured, 
and  it  was  understood  by  all  the  parties, 
though  not  stated,  that  the  settlement  would 
be  for  cash. 

On  July  10,  1906,  Henry  O.  Cushman,  who 
represented  the  insured,  wrote  from  Ids  of- 
fice in  Boston  to  the  defendant  that  the 
plaintiff  was  "ready  to  pay  the  portion  of 
the  Lyndon  flre  loss  agreed  upon,"  and  in- 
closing a  release,  which  be  said  had  been 
similarly  drawn  for  each  insurance  company, 
asking  the  defendant  to  have  it  signed  and 
returned  at  the  earliest  moment  possible, 
further  stating  that  the  plaintiff  would  not 
deliver  a  check  for  any  one  loss  until  all  re- 
ceipts had  been  returned,  and  therefore  it 
was  for  the  Interest  of  the  defendant,  as  well 
as  of  others,  that  they  be  returned  immedi- 
ately. The  release  was  returned  by  the  de- 
fendant, under  date  of  July  14th,  unsigned, 
for  two  reasons:  (1)  That  it  was  not  suf- 
ficiently specific  as  to  the  loss  or  liability 
covered ;  and  (2)  the  amount  stated  therein 
was  $741.55,  whereas  it  should  be  $750. 

Regarding  the  first  reason,  it  is  enough  to 
say  that  the  defendant  made  and  executed  a 
release  in  terms  satisfactory  to  itself,  and 
forwarded  the  same  to  Cushman  under  date 
of  July  23,  1906,  which  in  this  respect  was 
also  satisfactory  to  the  plaintiff.  This  re- 
lease was,  however,  rejected  by  the  plaintiff, 
because  the  money  consideration  stated 
therein  was  $750,  instead  of  $741.55.     This 


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position  was  taken  by  the  plaintiff,  because 
its  offer  of  compromise  (which  was  accepted) 
was  to  pay  60  per  cent  of  the  actual 
amounts  paid  to  the  Insured  by  the  insurers, 
"with  no  allowance  fort  expenses  or  dis- 
counts," claiming  that  the  latter  sum  was 
60  per  cent  of  all  the  defendant  paid,  and 
that  if  the  $16.90  (mentioned  below)  came 
into  the  matter  at  all,  It  was  covered  by  the 
words  "expenses  or  discounts,"  used  in  the 
offer.  The  defendant  dalmed  that  it  paid 
the  face  of  Its  policies,  $1,500;  that  at  the 
time  of  payment  the  insured  owed  the  de- 
fendant $16.90,  as  and  for  an  assessment 
due  it  at  the  time  of  the  fire,  and  the  defend- 
ant paid  Itself,  or  offset  that  sum,  giving 
the  insured  a  check  for  the  balance.  The 
master  flnds  the  facts  connected  with  the 
$16.90  to  be  as  claimed  by  defendant 

[i]  We  think  the  latter's  position  in  this 
respect  was  in  accordance  with  the  Intended 
and  reasonable  meaning  of  the  compromise 
agreement  That  Item  was  not  "expenses  or 
discounts."  It  was  a  valid  debt  due  from 
the  insured  to  the  defendant,  and  as  such 
could  I>e  and  was  used  in  part  payment  of 
the  sum  due  from  the  latter  to  the  former 
under  the  terms  of  settlement;  and,  when 
so  used,  it  properly  became  a  part  of  the  ac- 
tual amount  paid.  In  sending  the  release 
last  mentioned  to  Guslunan,  the  defendant 
accompanied  it  with  a  letter  stating  tliat  the 
release  was  made  to  read  $750,  as  that  was 
the  amount  which,  by  its  l)ooks,  the  company 
actually  paid;  that  the  deduction  was  for 
assessments  which  were  due  defendant  up  to 
the  date  of  the  fire;  that  defendant  would 
not,  however,  insist  upon  the  payment  of  the 
sum  of  $750,  for  the  reason  that  it  did  not 
desire  to  delay  settlement,  and,  if  the  plain- 
tiff still  refused  to  pay  tliat  sum,  defendant 
would  accept  the  $741.55.  It  appears  from 
the  record  that  thereupon  Mr.  Rich,  the  gen- 
eral counsel  for  the  plaintiff  railroad  compa- 
ny, who  had  these  matters  in  charge,  with 
full  knowledge  of  the  contents  of  the  several 
letters  from  defendant  to  Cushman,  and  of 
the  claim  of  the  former  concerning  the  $16.90, 
performed  the  agreement  of  comprcxnlse  as 
to  the  insured  and  the  other  insurers,  respec- 
tively, paying  them  in  the  aggregate  the 
sum  of  $8,845.91,  or  $8,850.91,  but  took  no 
further  steps  toward  the  performance  there- 
of as  to  the  defendant 

Thus  the  matters  stood  until  the  27th  day 
of  August,  1908,  when  the  defendant  brought 
for  its  benefit  in  the  name  of  the  insured, 
an  action  at  law  against  the  plaintiff  rail- 
road company  to  recover  for  the  loss  sus- 
tained by  the  fire.  Therein  the  railroad  com- 
pany pleaded  the  release  received  by  it  from 
the  insured  under  the  compromise  agree- 
ment us  a  bar  to  the  action,  and  to  the  repli- 
cation filed  to  such  plea,  setting  up  this  de- 
fendant's rights  by  subrogation,  and  that 
the  suit  was  brouRht  for  its  benefit,  the 
railroad  company  interposed  a  demurrer, 
and,  the  same  being  overruled,  took  an  ex- 


ception, and  thereon  brought  the  case  to  this 
court  The  Judgment  of  the  lower  court,  up- 
holding the  replication,  was  affirmed,  and  the 
cause  remanded,  in  October,  1909.  Within 
the  following  month  these  equity  proceedings 
were  Instituted  to  have  the  prosecution  of 
the  suit  at  law  peri)etnally  enjoined,  and  the 
compromise  agreement  specifically  enforced. 
A  temporary  injunction  was  issued  and  is 
still  in  force. 

The  master  states  that  the  plaintiff  is  not, 
and  never  has  been,  ready  and  willing  to 
pay  the  defendant  50  per  cent  of  the  amoont 
the  latter  paid  the  insured ;  that  it  did  not 
pay  at  the  time  defendant  returned  the  re- 
lease duly  executed,  "and  has  never  since 
been  ready  and  willing  to  pay,  $750,  which 
was  the  amount  proposed  in  the  orator's  of- 
fer, and  even  now  does  not  place  itself  on 
that  ground  in  the  bill  now  pending,  but 
therein  alleges  the  amount  to  be  $741.55." 
Fairly  understood,  this  finding  is  tantamount 
to  saying  that  the  plaintiff  is  not  now  and 
never  has  been  ready  and  willing  to  pay  de- 
fendant $760 — ^not  that  plaintiff  has  not  been, 
and  is  not  now,  ready,  and  willing  to  pay 
$741.65.  It  is  true  that  in  the  tenth  and 
eleventh  peragraiAs  of  the  bill  the  plaintiff 
alleges  in  substance  that  it  has  been  and 
now  is  ready  and  willing,  and  has  offered, 
to  pay  the  defendant  the  sum  of  $741.55,  in 
accordance  with  the  terms  of  the  agreement 
But  its  averments  and  offer  in  the  fifteenth 
paragraph  are  broader  as  to  amount,  being 
"that  it  is  now  ready  and  willing  to  pay, 
and  hereby  otters  to  pay,  •  •  •  the  one 
half  of  all  the  money  which  the  defendant 
herein  paid  to  the"  insured  by  reason  of  the 
burning  of  the  latter's  property,  "in  comidl- 
ance  with  the  terms  of  said  agreement"  A 
comparative  examination  of  the  facts  foond 
by  the  master,  and  those  alleged  in  the  \)SI1, 
which,  on  demurrer,  were  held  sufficient  to 
entitle  the  plaintiff  to  the  relief  sought  show 
no  material  difference  in  matters  essential 
to  the  plaintiff's  case,  except  the  difference 
of  $l(t.90  in  the  sum  paid  by  the  defendant 
to  the  insured,  and  except  further,  In  re- 
spect to  the  plaintiff's  willingness,  desire, 
and  offer  to  perform  the  compromise  agree- 
ment 

We  have  already  noticed  that  the  said  va- 
riation of  $16.90  was  at  most  a  dispute  as  to 
how  that  item,  a  mere  subordinate  matter, 
should  be  treated  in  determining  the  actual 
amount  paid  by  defendant  to  the  Insured, 
in  view  of  the  phrase  In  the  agreement 
"with  no  allowance  for  expenses  or  dis- 
counts," and  each  party  acted  according  to 
Its  own  view.  Whatever  the  actual  amount 
paid  proved  to  be  under  the  prot^er  Interpre- 
tation of  the  agreement  the  plaintiff  was 
iMund  to  pay,  and  the  defendant  to  accept 
50  per  cent  tliereof  in  settlement  So  the 
difference  in  the  views  of  the  parties  In  this 
respect  constituted  no  real  obstacle  in  the 
way  of  executing  tlie  agreement  within  such 
time  as.  In  the  circumstances,  would  reason- 


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ably  answer  the  requirements '  of  Its  proyl- 
slons.  Indeed,  by  Its  letter  of  July  28,  1906, 
to  Guahman,  of  which  the  plaintiff's  general 
counsel  had  knowledge,  the  defendant  offered 
to  accept  the  smaller  sum  if  the  idaintiff  still 
refused  to  pay  the  larger.  If  this' difference 
had  previously  been  such  an  obstacle,  it  was 
no  longer  so. 

[2]  The  agreement  included  as  parties  each 
and  all  the  Insurers,  the  insured,  and  the 
railroad  company,  as  required  by  the  latter 
and  by  defendant.  It  in  terms  covered  all 
matters  between  the  railroad  company  and 
each  and  all  the  other  parties  named,  grow- 
ing out  of  the  burning  of  the  insured's  prop- 
erty. The  claims  being  made  against  the  rail- 
road company  were  doubtful  in  character. 
Hie  contract  was  single  and  entire,  the  con- 
sideration of  which  was  the  mutual  promises 
of  the  parties.  It  was  fully  performed  by 
the  insured,  by  all  the  insurers,  except  the 
defendant,  and  by  the  railroad  company,  ex- 
cept as  to  the  defendant's  claim.  Nothing 
remains  to  be  done,  to  effect  a  full  perform- 
ance by  all  the  parties  Interested,  except  the 
payment  by  the  plaintiff  company  to  the  de- 
fendant of  the  sum  due  it  under  the  compro- 
mise and  the  giving  of  a  release  by  the  latter. 
The  agreement  was  without  fraud  or  imposi- 
tion. It  was  certain,  fair,  and  Just  in  all  its 
parts.  Agreements,  fairly  entered  into,  for 
tbe  compromise  and  settlement  of  disputed 
claims,  are  favorably  regarded  in  a  court  of 
equity,  and  are  supported  as  beneficial  in 
themselves  and  conducive  to  peace  and  har- 
mony, when  this  can  be  done  without  work- 
ing Injustice,  and  does  not  override  other 
principles  upon  which  courts  of  equity  pro- 
ceed Id  the  si>eoiflc  enforcement  of  contracts. 
5  B.  G.  L.  901 ;  this  same  case,  83  V t  654, 
77  AU.  874. 

[8,4]  The  plaintiff's  delay  in  performing 
tbe  contract  as  to  the  defendant  since  the 
latter  instituted  its  suit  at  law  is  sulficient-' 
ly  accounted  for.  The  bringing  of  that  suit, 
based  upon  the  alleged  original  liability  of 
the  plaintiff  to  the  Insured,  was  notice  to 
the  former  of  the  defendant's  attempted  re- 
scission of  the  agreement  of  compromise,  and 
the  necessity  of  a  tendel*  by  the  plaintiff  of 
tbe  sum  due  defendant  under  the  terms  of 
that  agreement  was  obviated,  If  It  before  ex- 
isted; for  a  tender  would' then,  ha  vie  been 
useless,  and  was  not'  required.  Va'n  Dyke  v. 
Cole,  81  Vt.  379,  70Atl.  893>'U08.  By  plead- 
ing in  defense  of  tbe  action  at  law  tbe  re- 
lease given  by  the  insufed  in  exeentlon  of 
tbe  agreement,  the  platatlfl  nndertoofa!  to 
stand  lipon  the  agreement  as  still  existing ; 
and  when  the  ruling  of  this  court  was  had 
against  it  on  the  pleadings  In  that  case,  the 
plaintiff,  without  unreasonable  delay,  filed 
its  bill,  asking  that  the  agreement,  as  to  tbe 
defendant's  claim,  be  specifically  enforced. 
In  the  drcumsta  rices  existing; '  the  plaintiff 
was  justified  in'  instituting  proceedings  at 
once  to  compel'  such  enforccnient,  and  In  so 
doing  it  W;9s  enough  to  aver  In  th^  bill  the 


plaintUTs  readiness  and  willingness  to  per' 
form  in  compliance  with  the  terms  of  the 
agreement,  and  an  offer  so  to  do.  3  Pom. 
Bq.  {  1407;  Oakey  v.  Cook,  41  N.  J.  Bq. 
350,  7  Atl.  495.  See  Amsden  v.  Atwood,  68 
Vt  322,  35  AtL  811. 

[S]  The  failure  of  the  plalntifl  to  perform 
the  contract  as  to  the  defendant  before  the 
latter  brought  the  suit  at  law  has  not  been 
so  satisfactorily  explained.  Time  was  not 
essMitial  In  the  perf(»mance  of  the  contract, 
but  it  was  materlaL  Burton  y.  Landon,  66 
Vt  361,  29  Atl.  374.  No  time  was  fixed  by 
the  agreement  within  which  It  should  be  per- 
formed, and  consequently  a  reasonable  time 
was  allowed  by  law.  If  the  contract  were 
wholly  between  the  plaintiff  and  the  'defend- 
ant, such  a  delay,  without  sho'wing  circum- 
stances reasonably  excusing  the  same,  would 
very  likely  defeat  the  right  to  the  remedy 
sought    Mr.  Pomeroy  says: 

"If  time  is  material  a  failure  to  comply  with 
the  terms  of  tbe  contract  is  not  necessarily  a 
bar  to  an  enforcement;  but  it  throws  upon  the 
defaulting  party  the  burden  of  explaining  his 
neglect  and  of  satisfying  the  court  that,  not- 
withstandine  the  failure,  a  denial  of  the  remedy 
to  him  would  be  inequitable."     Pom.  Con.  402. 

And  In  Walker  v.  Jeffreys,  1  Hare  (23  Eng. 
Ch.)  341,  Vice  Chancellor  Wlgrara  says : 

"The  general  rule  in  equity  I  take  to  bo  that 
a  party  who  asks  the  court  to  enforce  an  agree- 
ment in  his  favor  must  aver  and  prove  that  be 
has  performed,  or  been  ready  and  willing  to  per- 
form, an  agreement  on  his  part  'Where,  how- 
ever, the  strict  application  of  that  pfeneral  rule 
would  work  injustice,  the  court  will  relax  it 
A  breach  of  an  agreement  may  have  been  com- 
mitted, for  which  a  jury  would  only  give  a  nom- 
inal damage.  A  breach  may  have  been  com- 
mitted, which  a  jury  would  consider  as  waived ; 
and  if  tbe  party  committing  those  breaches  has 
substantially  performed  other  parts  of  the  agree- 
ment, whereby,  at  his  expense,  the  other  con- 
tracting party  has  derived  benefits  under  the 
agreement,  a  court  of  equity  might  fail  in  do- 
ing justice,  if  it  refused  to  decree  a  specific  per- 
formance." 

[(]  The  state  of  things  as  they  existed  be- 
fore the  making  of  the  agreement  cannot  be 
restored  by  returning  to  tbe  plaintiff  what  It 
paid  to  the  several  other  parties  under  the 
compromise.  The  situation  of  the  defendant- 
and  Its  relations  to  its  claim  covered  by  the 
agreement  have  not  been  so  altera  that  a 
spedfic  execution  would  be  inequitable. 
Nothing  Is  due  it  from  the  plaintiff  under 
the  agreement  but  money,  and  for  the  delay 
in  the  payment  of  that  Interest  thereon  is  In 
equity  fuU  compensation.  Such  order  can  be 
made  as  to  the  costs  in  the  suit  at  law  as  td 
the  court  seems  Just  and  equitable.  '  The 
agreement  having  been  thus  executed  In  re- 
^>ect  to  the  claims  of  all  the  parties  fxcept 
the  defendant  it  is  but  common  Justice  that' 
it  be  carried  into  execution  in  respect  to  the 
claimi  of  the  defendant  also.  If  spedflc  en-' 
forcement  be  refused,  and  the  'defendant  al-. 
lowed  to  repudiate  the  agreement  and  pros- 
ecute the  suit  at  law  to  final  Judgment  on  Ita 
original  claim.  It  woufd  operate  as  a  fraud 
upon  the  otjliec  Insurers  and  tbe  Insured, 


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vhose  coming  Into  the  settlement  the  defend- 
ant made  essential  to  Its  own  participation 
therein,  and  as  to  whom  the  agreetnent  waa 
fully  executed  before  the  defenidant's  at- 
tempted repudiation.  By  reason  of  the  spe- 
cial circumstances  of  the  case,  and  to  pre- 
vent such  fraud  and  Injustice,  spedflc  per- 
formance would  seem  to  be  indispensable  to 
Justice;  and  a  denial  of  such  remedy  would 
be  inequitable  to  the  plaintlCF. 

The  plaintiff  being  entitled  to  relief  on  the 
facts  reported,  none  of  its  exceptions  have 
been  considered. 

Decree  reversed,  and  cause  remanded,  with 
directions  that  a  decree  be  entered  that,  upon 
the  payment  by  the  plaintiff  to  the  clerk  of 
the  court  of  chancery  within  and  for  the 
county  of  Washington,  for  the  benefit  of  the 
defendant,  the  sum  of  $750,  with  simple  In- 
terest thereon  at  6  per  cent  from  the  1st 
day  of  September,  1906,  to  the  day  of  pay- 
m&it,  together  with  the  taxable  costs  of  the 
plaintiff  named  in  the  said  suit  at  law,  to 
the  time  of  the  bringing  of  this  suit  in  equity, 
less  the  taxable  costs  of  the  plaintiff  In  this 
equity  suit,  and  also  less  this  plaintiff's  tax- 
able costs  as  'defendant  in  the  said  suit  at  law 
after  the  bringing  of  this  suit  in  equity,  both 
of  which  are  to  be  iwld  by  the  defendant 
(Union  Mutual  Fire  Insurance  Company), 
then  the  prosecution  of  the  said  suit  at  law 
shall  be  perpetually  enjoined,  and  the  defend- 
ant In  this  suit  in  equity  shall  immediately 
execute  in  due  form  and  deliver  to  said  clerk 
of  court,  for  the  benefit  of  the  plaintiff,  a  re- 
lease to  the  plaintiff,  which  shall  be  In  com- 
pliance with  the  provisions  of  the  said  com- 
promise agreement:  Provided  that,  if  the 
plaintiff  shall  fail  to  comply  with  the  fore- 
going provisions  of  the  'decree  within  30  days 
after  the  entry  of  the  decree  by  the  chancel- 
lor, pursuant  to  this  mandate,  then  the  bill 
In  this  case  shall  be  dismissed,  with  costs  to 
the  defendant,  and  the  defendant  left  to  pros- 
ecute the  said  action  at  law  as  it  may  be  ad- 
vised. 

(»2  Vt.  84) 

TOWN  OP  GLOVB5R  v.  TOWN  OF  GREENS- 
BORO. 

(Supreme  Court  of  Vermont    Orleans.    Oct  2, 

1917.) 

1.  DOMICILR  «=s>4(2)— Ohanok. 

A  purpose  to  change,  unaccompanied  by  ac- 
tual removal  or  change  of  residence,  does  not 
constitute  a  change  of  domicile,  bat  the  fact  and 
intent  must  concur. 

2.  Paupebs  <ga52(6)-— RaaiDENCi^— SuFrioucw- 

OT  or  EVIDBNCE. 

In  assumpsit  for  support  of  a  pauper,  evi- 
dence held  sufficient  to  sustain  a  finding  that 
the  pauper  bad  resided  and  supported  bimself 
In  defendant  town,  within  P.  S.  3667,  jiroviding 
that  the  last  town  where  a  pauper  resided  and 
supported  himself  for  three  years  waa  liahle  for 
his  support 

Exceptions  from  Orleans  County  Coort; 
Zed  S.  Stanton,  Judge.  , 


Assumpsit  by  the  Town  of  Glover  against 
the  Town  of  Greensboro  for  the  support  of 
a  pauper.  Judgment  for  plaintiff,  after  over- 
ruling of  exceptions  to  findings  of  a  ref- 
eree, and  defendant  excepted.    Affirmed. 

nils  case  was  heard  below  on  a  referee's 
report  and  defendant's  exceptions  thereto. 
The  exceptions  were  overruled,  and  Judgment 
rendered  for  the  plaintiff,  to  recover  the 
amount  found  to  have  been  expended  by  it 
In  the  support  of  the  pauper,  L.  G.  Bush, 
and  his  wife.  Defendant  excepted  to  the 
Judgment 

The  evidence  taken  before  the  referee.  In 
respect  of  the  intent  of  the  alleged  pauper 
as  to  residence.  Is  made  a  part  of  the  report, 
solely  on  that  question.  The  ultimate  issue 
was  whether  the  pauper  last  resided  in  the 
defendant  town  for  the  space  of  three  years, 
supporting  tilmself  and  family,  as  was  nec- 
essary by  statute  (P.  S.  3667),  In  order  to 
the  plaintiff's  right  of  recovery  for  the  assist- 
ance rendered.  The  assistance  was  furnish- 
ed by  the  plaintiff  town,  part  in  February, 
1914,  and  part  In  April,  1914,  when  Bush 
was  a  resident  therein,  was  poor,  and  In 
need  thereof. 

At  all  times  mentioned  in  the  findings. 
Bush  bad  a  wife,  whose  needs  and  poverty 
Increased  or  were  relieved,  according  as  her 
husband's  poverty  and  means  were  Increased 
or  relieved,  and  who  shared  with  him  In  the 
benefit  of  the  assistaace  furnished.  Bush 
and  his  wife  went  to  defendant  town  as 
early  as  January,  1908,  and  Immediately 
took  up  a  residence  therein,  moving  upon  and 
occupying  a  farm,  keeping  house,  supporting 
themselves,  and  never  received  any  assist- 
ance from  the  town  while  either  remained 
therein.  In  October,  1910,  they  moved  trom 
this  farm,  taking  vrith  them  their  honsebold 
goods,  storing  them  In  an  old  building  in  the 
town,  belonging  to  one  Carl  Thompson 
(whose  wife  is  a  cousin  of  Mrs.  Bush),  after 
which  Bush  and  his  wife  did  not  keep  bouse 
in  that  town.  From  the  time  last  mentioned 
until  the  following  April,  Mrs.  Bush  remain- 
ed with  her  said  cousin  for  tbe  most  part, 
but  visited  occasionally  among  neighbors 
living  in  the  same  town,  and  continuously 
resided  in  that  town  from  January  SI,  1908, 
until  April,  19U.  Mr.  Bush  also  resided 
continuously  therein  from  January  31,  1908, 
except  as  stated  below. 

Immediately  after  leaving  the  farm  as 
stated  above,  Mr.  Bush  made  a  visit  to  Der- 
by, remaining  about  a  week,  and  returning 
to  defendant  tovm,  where  he  and  bis  wife 
continued  to  visit  with  the  Thompsons  un- 
til after  the  following  January,  during  which 
time  Bush  and  his  wife  helped  the  Thomp- 
sons a  bit,  and  during  which  time  Bush 
worked  out  to  some  extent  in  the  town ;  but 
otherwise  neither  he  nor  bis  wife  paid  the 
Thompsons  anything  for  their  support,  nor 
did  the  Thompsons  pay  them,  or  eithw  of 


aFor  oth«r  caaw  see  nma  topic  and  KET-NUUBBR  ta  all  Ker-Numbared  Dlswta  and  ladasaa 


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them,  anytblng  for  their  aaatatance.  Mrs. 
Thompson  tired  of  the  presence  of  Mr.  Bush 
as  a  guest,  and  finally  told  him  to  get  out; 
that  she  had  had  him  there  as  long  as  she 
wanted  him.  The  referee  states  that  he  Is 
nnable  to  find  that  Bush  left  the  Thompsons 
by  reason  of  the  Inhospitable  suggestion  of 
Mrs.  Thompson ;  but  thereafter,  pursuant  to 
a  previous  contract  of  hiring,  Bush,  on  the 
1st  day  of  January,  1911,  went  to  the  plain- 
tiff town  to  work  for  one  William  Graham, 
leaving  his  wife  at  the  Thompsons  in  the 
defendant  town.  Bush  remained  in  Glover 
in  the  employ  of  Graham  until  February  1, 
1911.  when  he  completed  his  work  there,  but 
by  reason  of  a  heavy  snowstorm  remained 
a  few  days  longer,  after  which  he  returned 
to  the  Thompsons,  where  he  stayed  a  day  or 
80  with  his  wife.  From  that  time  on,  until 
his  final  removal  from  defendant  town  as 
mentioned  below,  the  referee  states  that  he 
is  unable  to  find  where  Bush  kept  himself; 
but  he  was  at  the  Thompsons  only  a  small 
portion  of  the  period. 

In  the  following  April  (1911)  Bush  and  his 
wife,  taking  their  household  effects  from  the 
old  building,  where  stored  as  stated  above, 
moved  from  defendant  town  to  plaintiff 
town,  and  have  ever  since  remained  therfc 
After  such  removal,  and  prior  to  March, 
1913,  the  overseer  of  the  poor  of  the  latter 
town  had  occasion  to  help  them,  and  on  Feb- 
ruary 27,  1914,  sent  notice  to  the  overseer 
of  the  poor  of  defendant  town.  In  accordance 
with  the  provisions  of  section  3667  of  the 
Public  Statutes,  concerning  wlilch  no  ques- 
tion is  made.  The  assistance  for  which  re- 
covery is  here  sought  was  rendered  after  the 
giving  of  such  notice. 

The  referee  finds  that  prior  to  such  remov- 
al in  April,  1911,  Bush  had  been  thinking 
of  so  doing,  and  had  been  thinking  of  per- 
manently leaving  Greensboro,  but  was  una- 
ble to  find  that  he  ever  definitely  determined 
permanently  to  abandon  that  town  and  take 
up  his  residence  elsewhere  until  at  the  time 
of  his  removal  with  his  wife  in  the  month 
last  mentioned.  His  leaving  that  town  on 
previous  occasions  is  found  to  have  been  at 
most  but  temporary  absence,  and  his  resi- 
dence there  Is  found  to  have  continued  from 
the  31st  day  of  January,  1906,  until  April, 
1911. 

Defendant  excepted  to  the  finding  last 
stated,  as  not  supported  by  the  evidence, 
and  as  inconsistent  with  the  other  facts 
found,  especially  that: 

"When  he  [Bush]  left  defendant  town  and 
went  to  plaintiff  town  January  1,  1911,  he  went 
under  an  agreement  to  work  for  Graham  two 
tnontha,  but,  as  stated,  worked  only  one  month, 
and  while  at  said  Graham's  bad  no  home  in  de- 
fendant town,  other  than  with  the  Thompsons, 
to  whose  place  he  could  not  return  as  a  matter 
of  right." 

Argued  before  WATSON,  C.  J.,  and  HAS- 
ELTON,  POWEES,  TAYLOB,  and  MILES, 
JJ. 


Cook  &  Norton,  of  LyndonvUle,  for  plain- 
tiff. John  W.  Redmond,  of  Newport,  for  de- 
fendant. 

WATSON,  C.  J.  There  can  be  no  doubt, 
on  the  facts  foimd,  that  the  alleged  poor 
person  was  a  resident  of  the  town  of  Greens- 
boro, from  January  31,  1908,  to  January  1, 
1911,  supporting  himself  and  family,  within 
the  meaning  of  the  law.  The  real  question 
Is  whether,  on  the  day  last  named,  when  he 
went  to  the  town  of  Glover  to  work  for  Gra- 
ham Tinder  a  contract  of  hire,  he  changed 
his  residence  to  that  town.  If  he  did,  bis 
continuous  residence  In  Greensboro  was  30 
days  short  of  3  years,  the  time  essential  to 
the  latter's  liability.  But,  if  he  did  not, 
then  he  last  resided  in  that  town  for  the 
space  of  3  years,  supporting  himself  and 
family,  and  a  recovery  can  be  had  for  the 
assistance  furnished. 

[1]  The  Intention  of  a  person  in  respect  of 
making  a  change  in  his  place  of  residence 
Is  important  to  consider ;  but  It  is  not  alone 
determinative  of  the  fact  of  effecting  the 
change.  Domicile  is  not  a  tldng  resting 
wholly  In  Intention,  and  residence  is  a  fact 
Jamaica  v.  Townshend,  19  Vt  267;  South 
Burlington  v.  Worcester,  67  Vt  411,  31  Aa 
891.  The  person's  purpose  to  change,  unac- 
companied by  actual  removal  or  change  of 
residence,  does  not  constitute  a  change  of 
domicile.  The  fact  and  the  intent  must  eon- 
cur.  He  must  remove,  without  the  intention 
of  going  back.  Mt  Holly  v.  Plymouth,  89 
Vt  301,  95  AtL  572.  To  constitute  domicile, 
the  fact  of  residence  and  the  Intent  to  make 
the  place  of  residence  the  home  of  the  party 
must  concur.  FuUuun  t.  Howe,  62  Vt  386, 
20  AtL  101. 

[2]  The  question  of  the  change  of  residence 
in  the  case  before  as  was  to  be  determined 
on  all  the  evidence  as  to  intent,  comMned 
with  tliat  I>earing  on  the  actual  removal. 
We  think  the  finding  of  the  referee,  to  which 
exception  was  taken,  was  amply  supported 
by  the  evidence,  and  is  not  Justly  subject  to 
the  criticism  made.  Nor  Is  such  finding  In- 
consistent  with  the  other  findings,  quoted  in 
the  exception,  that,  while  working  for  Gra- 
ham In  plaintiff  town.  Bush  "had  no  home 
In  defendant  town  other  than  with  Thomp- 
son, to  whose  place  he  could  not  return  as  a 
matter  of  right"  One  element  of  the  find- 
ing objected  to  being  that  the  occasions  when 
Bush  was  away  from  the  latter  town  pre- 
vious to  moving  away  with  his  wife  In  April, 
1911,  "were  at  most  but  tranporary  absences," 
there  is  not  even  color  of  inconsistency  be- 
tween the  two  findings,  for  he  had  not  aban- 
doned that  town  as  tiie  place  of  bis  resi- 
dence. Mt  Holly  V.  Plymouth,  dted  above. 
The  exception  is  not  sustained  in  either  re- 
spect 

The  exceptions  saved  In  connection  with 
the  admission  and  use  of  evidence  have  not 
been  briefed. 

Judgment  affirmed. 


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101  ATLANTIC  REPORTER 


(Vt 


(92  Vt  47) 

HUBCPHRE7  t.  WHEELER. 

(Supreme  Court  of  Vermont    Orleaiu.    Oct.  2, 
1917.) 

1.  Attachment   «=3322  —   Descxiftioii   or 
Pboperty — Rettjbn — SumciENCY. 

Wbere  defendant  bad  more  in  number  of  all 
the  articles  of  personalty  than  were  attached, 
and  tbe  officer's  return  did  not  show  which  were 
attached,  no  lien  was  created. 

2.  S)viDENCB  ^=>340(1)  —  Cebtifikd  Copt  of 
Attachment — .\dmts8it!it,itt, 

A  certified  copy  of  the  writ  of  attachment 
and  the  officer's  return  thereon,  filed  in  the  town 
clerk's  office  in  making  the  attachment,  were  ad- 
missible in  evidence,  in  view  of  P.  S.  1456,  re- 
quiring the  clerk  to  make  a  record  thereol 

3.  Attachment  «=353  —  Pbofkbtt  Sitbjxot  — 
Vendob's  Likn. 

Articles  of  defendant,  upon  which  there  were 
vendor's  liens  for  the  purchase  price  equal  to  or 
fn^eater  than  the  value  thereof,  were  not  sub- 
ject to  attachment. 

4.  Attachment  «=>322  —  Retubn  —  Sum- 

CIENCY. 

Tbe  return,  rimply  naming  as  attached  "one 
spike  tooth  harrow,"  without  giving  its  location 
more  definitely  than  in  a  named  town,  was  in- 
sufficient to  create  a  lien. 

Exceptions  firom  Orleans  County  Munici- 
pal Court ;  H.  B.  Cushman,  Judge. 

Action  by  George  A.  Humphrey  against  O. 
A.  Wheeler  for  the  alleged  conversion  of  cer- 
tain personal  property.  Plea,  the  general  is- 
sue Judgment  for  plaintiff,  and  defendant 
brings  exceptions.    Reversed,  with  costs. 

The  plaintiff  was  a  constable,  and  on  the 
26th  of  October,  1916,  attached  the  personal 
property  sued  for  in  this  action  upon  a  writ 
duly  issued  by  tbe  Orleans  coimty  municipal 
court  in  a  suit  brought  by  W.  A.  Merriam  & 
Son  against  O.  A.  Wheeler,  the  present  de- 
fendant In  that  suit  Judgment  was  render- 
ed in  favor  of  Merriam  &  Son  against  Wheel- 
er. On  the  28th  day  of  October,  after  the 
service  of  tbe  attachment  writ  and  before 
the  trial  in  tlie  Merriam  suit  the  defendant 
Wheeler  conveyed  away  the  property  in  ques- 
tion to  Ills  son,  and  on  a  later  date,  before 
the  Issuance  of  tbe  execution  in  the  Merriam 
case,  the  said  son  deeded  the  property  to  a 
third  i)erson,  who  went  into  possession  of  the 
same.  The  present  suit  was  brought  by  the 
plaintiff,  as  constable,  to  recover  damages  for 
the  alleged  conversion  of  the  property  by  the 
defendant  after  the  attachment  of  it  by  the 
plaintiff  as  above  set  forth.  Tbe  findings  of 
fact  as  to  the  si)ecific  items  of  the  personal 
property  are  set  forth  in  the  opinion. 

Argued  before  WATSON,  O.  J.,  and 
HASELTON,  POWERS,  TAYLOR,  and 
MILigs,  JJ. 

W.  W.  Relrden,  of  Barton,  for  plainUff. 
Frank  J>.  Thompson,  of  Barton,  for  defend- 
ant 

WATSON,  C.  J.  [1]  The  findings  show 
that  at  the  time  of  the  attachment  tbe  de- 
fendant owned,  and  bad  on  his  farm  in  Glo- 
ver, 7  cows,  52  bunches  of  clapboards,  sev- 


eral bushel  baskets,  several  Fairbanks  plat- 
form scales,  287  cedar  posts,  and  about  300 
bushels  of  potatoes.  Tbe  attachment  was  of 
6  cows,  42  bunches  of  clapboards,  one  bushel 
basket,  one  Fairbanks  platform  scales,  200 
cedar  posts,  and  150  bushels  of  potatoes.  Ap- 
plying the  officer's  retiurn  to  the  actual  state 
of  defendant's  property,  the  attachment  as 
to  these  articles  or  kinds  of  property  cannot 
be  maintained ;  for  as  to  each  tbe  defendant 
had  more  in  number  than  were  attadied,  and 
there  is  nothing  showing  which  were  attach- 
ed, and  therefore  no  lien  was  created  thereon. 
To  give  the  otflcer  constructive  possession  of 
the  property  attached,  it  was  necessary  that 
it  be  described  in  the  return  with  reasonable 
certainty.  And  sncb.  certainty  requires  that 
the  property  be  sufficiently  pointed  out  to 
enable  the  debtor,  and  those  with  whom  he 
may  deal,  to  be  Informed  that  it  Is  attadied. 
Bucklln  v.  Crampton,  20  Vt  261;  Fullam  v. 
Steams,  30  Vt  443;  Pond  v.  Baker,  65  Vt 
400;  Barron  v.  Smith,  63  Vt  121.  21  AtL  269; 
Steams  v.  Slisby,  74  Vt  68,  62  Atl.  116. 

[2]  The  court  received  in  evidence,  sub- 
ject to  defendant's  exception,  a  certified  copy 
of  the  writ  in  the  case  of  Merriam  &  Son  v. 
O.  A.  Wheeler,  and  the  officer's  return  there- 
on, lodged  by  the  plaintiff  in  the  town  clerk's 
office  in  Glover,  in  making  the  attachment  in 
question.  The  reception  of  this  evidence  was 
not  error.  When  a  copy  of  a  writ  of  attach- 
ment upon  whldi  personal  property  Is  at- 
tached, is  lodged  in  the  oOlce  of  the  town 
clerk,  such  clerk  is  required  by  law  to  make 
a  record  thereof  In  a  book  kept  for  that  pur- 
pose. P.  S.  1456.  The  record  thus  required 
to  be  made  is  public  In  character,  and  a  duly 
certified  copy  is  admissible  in  evidence.  Pond 
V.  Campbell,  66  Vt  674;  McKlnstry  v.  Col- 
lins, 74  Vt  147,  62  Atl.  438;  Ripton  ▼.  Bran- 
don, 80  Vt  234,  67  Atl.  641. 

[3]  It  is  found  that  the  meat  cart  men- 
tioned in  the  return  effecting  the  attachment 
was  sold  conditionally  to  the  defendant  by 
Taplin  &  Rowell,  of  Barton,  this  state,  and 
at  the  time  of  the  attachment  they  had,  and 
have  ever  since  had,  a  valid  vendor's  lien 
on  the  same  for  unpaid  purchase  money,  more 
in  amount  than  the  value  of  the  meat  cart 
This  shows  that  the  defendant  did  not  have 
at  the  time  of  the  attadiment  nor  has  he 
since  had,  any  attachable  Interest  therein.  It 
is  also  found  that  the  spring  tooth  harrow 
mentioned  in  the  return  was  sold  condition- 
ally to  the  defendant  by  F.  S.  Whitcher,  of 
Barton,  and  at  the  time  of  the  attachment 
the  latter  had,  and  has  ever  since  had,  a 
valid  vendor's  lien  on  the  same  for  the  full 
amount  of  the  purchase  price.  While  this 
finding  Is  not  in  terms  that  the  amount 
of  the  lien  is  all  the  harrow  is  worth,  It  is 
equivalent  to  that,  for  it  is  inconceivable 
that  an  implement  of  agriculture  in  use 
on  a  farm  appreciates  in  value.  The  de- 
fendant, therefore,  had  no  attachable  totei^ 


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1019 


•est  In  this  harrow.  Obviously  this  was  the 
view  of  the  plaintiff  and  the  attaching  credi- 
tors, for  In  this  Instance,  as  well  as  In  that 
of  the  meat  cart,  neither  of  them  ever  paid 
or  tendered  to  the  vendor  the  amount  due  on 
the  lien. 

[4]  The  return  names  as  attached  "one 
spike  tooth  harrow,"  but  It  gives  no  other  de- 
scription of  it,  nor  Is  Its  location  given  more 
definitely  than  In  the  town  of  Glover.  No 
-evidence  was  offered  as  to  whether  the  de- 
fendant had  more  than  one  such  harrow  In 
that  town  at  the  time  of  the  attachment.  In 
this  respect  the  return  was  like  that  relating 
to  the  hemlock  bark  In  the  case  of  West  Blv- 
«r  Bank  v.  Gorham,  38  Vt  649,  whldi  was 
held  to  be  too  Indefinite  as  to  the  location  of 
the  property  to  effect  any  attachment  there- 
on. Again,  In  Steams  v.  Sllsby,  dted  above. 
It  was  held  that  such  a  return,  supplemented 
by  extrinsic  evidence  showing  that  the  debtor 
had  only  the  two  horses  and  surrey  sued  for. 
In  the  town  in  which  the  attadunent  was 
made,  was  sufficient.  There  the  court  dis- 
cussed the  distinction  at  some  length,  and 
made  plain  the  essentiality  of  such  supple- 
mental showing,  in  order  to  give  reasonable 
certainty  to  the  description  of  the  property  In 
sudi  a  return.  It  follows  that  the  return  as 
to  the  spike  tooth  harrow  was  not  sufficient 
to  create  any  lien  thereon. 

The  foregoing  being  determinative  of  the 
case,  no  other  question  raised  by  the  defend- 
ant Is  considered. 

Judgment  reversed,  and  Judgment  for  the 
defendant  to  recover  his  costs. 

(130  Md.  661)  " 

BRUNSMAN  v.  CROOK  et  ai     (No.  2.) 

(Court  of  Appeals  of  Maryland.     May  4,  1917. 

Motion   for  Modification   of  Opinion   as  to 

Costs  Denied  Oct  3,  1917.) 

1.  Judgment  "SssTeSCD  —  Libk  —  Tbakbcbwt 
or  Judgment. 

Code  Fob.  Qv.  Lows,  art  26,  H  19,  20,  pro- 
vide that  when  a  judgment  has  been  rendered 
in  one  county  or  in  the  city  of  Baltimore  it  be- 
comes a  lien  ui>on  the  property  of  defendant 
in  such  county  or  city,  and  that  upon  the  trans- 
mittal of  the  record  thereof,  together  with  a  copy 
of  the  docket  entries,  from  the  court  in  which 
judgment  was  rendered,  it  becomes  a  lien  as 
from  time  of  its  record  on  all  defendant's  lease- 
bold  interests,  to  the  same  effect  as  liens  are 
rendered  by  judgment  upon  realty.  Held,  that 
where  a  judgment  of  the  superior  court  of  Bal- 
timore was  transmitted  to  the  circuit  court  of 
one  county,  the  latter  court  could  not  treat 
it  as  an  original  judgment  therein,  and  the  clerk 
thereof  could  not  certify  the  proceedings  to  an- 
other county,  so  as  to  create  a  lien  on  property 
in  the  latter  county. 

2.  Judgment  <S=»766— Lien— Copt  of  Docket 
Entbie^. 

A  judgment  is  not  a  lien  on  land  in  another 
county  until  a  certified  copy  of  the  docket  en- 
tries in  the  case,  taken  from  the  court  where 
judgment  was  rendered,  is  recorded  in  that  coun- 
ty, and,  until  projrerly  certified  from  the  court 
rendering  judgment,  an  attachment  to  enforce 
the  judgment  against  property  in  another  coun- 
ty is  unauthorized. 


8.  APPEAI.    AMD     EbBOB     «=>876  —  REVIEW — 

Scope  —  Judgment  —  Attachment  —  Ap- 
peal FROM  Okdeb  on  Motion  to  Quash. 
Where  judgment  has  been  rendered  on  a 
note,  matters  which  were  for  the  consideration 
of  the  jurv  cannot  be  reviewed  on  appeal  from 
an  order  on  motion  to  quash  an  attachment  on 
the  judgment,  and  the  inclusion  of  evidence  on 
such  matters  in  the  record  is  unwarranted. 

Appeal  from  Circuit  Court,  Howard  Coun- 
ty ;   Wm.  Henry  Forsythe,  Jr.,  Judge. 

"To  be  officially  reported." 

Proceeding  by  Howard  A.  Crook  and  Hen- 
ry A.  Kries,  copartners,  trading  as  Crook- 
Kries  Company,  use  of  David  G.  Steele, 
against  Joseph  A.  Brunsman,  garnishee  of 
James  P.  Bannon.  From  an  order  overrul- 
ing a  motion  to  quash  a  writ  of  attachment, 
defendant  appeals.  Judgment  reversed,  and 
attachment  quashed. 

Argued  before  BOYD,  O.  J.,  and  BRIS- 
COE, THOMAS,  URNER,  and  STOCK- 
BRIDGE,  JJ. 

Jacob  S.  New  and  Julius  H.  Wyman,  both 
of  Baltimore  (J.  R.  Brunsman,  on  brief),  for 
appellant.  James  Clark,  of  Elllcott  City,  for 
appellees. 

STOCKBRIDGB,  J.  This  case  Is  an  ap- 
peal from  the  circuit  court  for  Howard  coun- 
ty, rendered  in  an  attachment  proceeding  un- 
der the  following  circumstances.  On  the 
10th  of  May,  1910,  a  Judgment  was  rendered 
in  the  superior  court  of  Baltimore  dty 
against  Francis  I.  Mooney,  trustee,  for  the 
sum  of  $204.27,  and  on  the  6th  of  October  In 
the  same  year  a  Judgment  was  rendered 
against  James  P.  Bannon  for  the  sum  of 
$208.73.  The  foundation  for  both  of  these 
Judgments  was  a  promissory  note  for  $200, 
to  which  the  Interest  between  the  date  of 
the  maturity  of  the  note  and  the  date  of  the 
rendition  of  the  Judgment  as  to  each  defend- 
ant was  duly  entered.  In  1916  a  writ  o*  at- 
tachment was  directed  to  be  Issued  from  the 
superior  court  of  Baltimore  city  to  Anne 
Arundel  county,  and  accompanying  the  writ 
was  a  copy  of  the  docket  entries  in  the 
suit  in  Baltimore  city.  So  far  as  appears 
by  the  record  no  return  was  made  to  the  cir- 
cuit court  for  Anne  Arundel  county  of  the 
writ  issued  from  the  superior  court  of  Bal- 
timore city ;  but  on  April  5,  1916,  there  was 
filed  an  order  in  Anne  Arundel  county  for  a 
writ  of  fl.  fa.,  and  in  June  of  the  same  year, 
and  without  any  return  having  been  made 
apparently  to  the  writ  of  fl.  fa.,  there  was  an 
order  to  Issue  an  attachment  to  Howard 
county  from  the  circuit  court  for  Anne  Arun- 
del  county. 

When  the  case  reached  Howard  county  a 
motion  was  made  to  quash  the  writ  of  at- 
tachment Issued  from  Anne  Arundel  county, 
and,  when  this  motion  had  been  overruled, 
the  Judgment  from  which  this  appeal  was  tak- 
en was  entered.  The  first  question  for  con- 
sideration which  the  record  presents  is,  there- 


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fore,  tbe  correctness  of  the  action  of  the 
circuit  court  for  Howard  county  In  OTerrul- 
Ing  the  motion  to  quash. 

[1,2]  The  question  at  Issue  is,  therefore, 
one  of  practice  under  sections  19  and  20  of 
art  26  of  the  Code  of  1912,  which  provides, 
in  effect,  that  when  a  Judgment  has  been  ren- 
dered in  one  county  or  In  the  dty  of  Bal- 
timore it  becomes  a  lien  upon  the  property 
of  the  defendant  in  such  county  or  city,  and 
that  upon  a  transmittal  of  the  record  of  such 
Judgment,  together  with  a  copy  of  the  docket 
entries,  from  the  court  in  which  the  judg- 
ment was  originally  rendered,  the  same  be- 
comes a  lien  as  from  the  time  of  its  record- 
ing upon  all  leasehold  interests  and  terms 
of  years  of  the  defendant  in  land,  except 
leases  from  year  to  year,  and  leases  tor 
terms  of  not  more  than  five  years  and  not 
renewable  to  the  same  extent  and  effect  as 
liens  are  rendered  by  Judgment  upon  real 
estate. 

The  error  into  which  the  appellee  fell,  and 
apparently  also  the  circuit  court  for  Howard 
county,  was  in  interpreting  this  language  as 
giving  to  the  copy  of  the  docket  entries 
transmitted  from  the  court  in  which  the 
original  Judgment  was  entered  the  full  force 
and  effect  of  an  original  judgment  in  the 
county  to  which  It  had  been  sent,  when,  by 
its  express  terms,  the  act  simply  makes  it  a 
lien  upon  certain  enumerated  lands  and  inter- 
est in  lands  in  such  county.  The  only  dock- 
et entries  which  it  was  possible  for  the  clerk 
of  the  circuit  court  for  Anne  Arundel  county 
to  send  to  Howard  county  were  those  relat- 
ing to  the  proceeding  in  Anne  Arundel  coun- 
ty. He  could  not  certify  to  the  proceeding 
had  in  the  superior  court  of  Baltimore  city, 
in  which  the  judgment  was  originally  ren- 
dered; that  could  only  have  been  done  by 
the  clerk  of  that  court  The  rule  as  laid 
down  in  2  Pee  on  Practice  (3d  Ed.)  {  377,  Is 
that  "a  judgment  is  not  a  lien  on  land  in 
another  county  untU  a  certified  copy  of  the 
docket  entries  in  the  case,  taken  from  the 
court  where  the  Judgment  was  rendered, 
shall  be  recorded,"  etc.,  and  no  Judgment  of 
any  character  was  rendered  in  the  circuit 
court  for  Anne  Arundel  county.  The  act  as 
embodied  in  the  present  Code  is  a  re-enact- 
ment with  some  slight  modifications  of  a 
very  early  act  in  this  state  which  came  up 
for  discussion  in  the  case  of  Harden  v. 
Moores,  7  Har.  &  J.  4,  decided  in  1825,  where 
the  Judgment  then  under  review  was  one 
which  had  been  rendered  in  Baltimore  city, 
and  was  sought  to  be  enforced  in  Harford 
county,  and  in  passing  upon  that  case  Judge 
Buchanan  said: 

"An  attachment  is  not  an  ordinary  process, 
•  •  •  by  which  to  arrive  at  the  fruits  of  a 
jndgment  and  will  only  lie,  when  specially  au- 
thorized •  •  •  from  the  court  in  which  the 
judgment  was  rendered  •  •  *  and  from  the 
court  of  the  county  in  which  the  defendant  may 


happen  to  be,  who  has  fled,  removed,  or  absented 
himself  from  the  county  in  wliich  the  judgment 
was  rendered  upon  the  production  of  a  tran- 
script of  the  record." 

This  case  is  closely  similar  to  the  one  now 
presented,  and  the  reasoning  of  that  case  is 
equally  applicable  to  the  questions  involved 
in  this  appecd.  The  subject  is  also  consider- 
ed in  Hodge  &  McLane  on  Attachments,  i 
254,  and  the  rule  laid  down  Is: 

"The  copy  of  the  docket  entries  is  essential 
to  inform  the  court  having  jurisdiction  of  the 
writ  that  the  judgment  upon  which  it  issued 
has  hem  rendered  and  remains  unsatisfied." 

To  the  same  purport  may  be  added  the 
case  of  Handle  v.  Mellen,  67  Md.  166,  8  AtL 
673. 

The  appellee  now  asks  the  court  to  reverse 
this  line  of  decisions  upon  the  authority  of 
the  case  of  Parker  v.  Brattan,  120  Md.  428, 
87  AtL  756.  The  decision  in  that  case  is 
very  far  from  sustaining  the  contention  of 
the  appellee.  A  suit  had  been  instituted  in 
Wicomico  county  and  was  subsequently,  but 
before  trial,  removed  to  Somerset  county. 
A  judgment  was  rendered  in  the  case  in 
Somerset  county,  and  a  copy  of  the  docket 
entries  in  the  last-named  county  returned  to 
the  circuit  court  for  Wicomico  county,  where 
it  was  sought  to  be  enforced.  It  will  be  ob- 
served that,  the  case  having  originated  in 
Wicomico  county,  when  the  return  of  the 
proceedings  In  Somerset  county  was  made, 
the  circuit  court  for  Wicomico  county  had 
upon  its  docket  the  full  record  of  the  pro- 
ceeding, being  the  original  record  of  the  case 
prior  to  the  time  of  its  removal  to  Somerset 
county,  and  a  duly  certified  transcript  or 
record  of  what  had  taken  place  in  the  county 
where  the  judgment  was  entered.  That  case, 
therefore,  is  wlthoTit  any  controlling  influ- 
ence upon  the  one  now  presented,  and  It  fol- 
lows from  what  has  been  said  that  the  mo- 
tion to  quash  should  have  been  granted. 

[3]  Several  other  questions  were  presented 
in  the  record  which  this  court  deems  it  un- 
necessary to  consider,  as  they  all  arose  sub- 
sequent to  the  ruling  of  the  circuit  court  for 
Howard  county  upon  the  motion  to  quash. 
The  record  is  considerably  lncuml>ered  with 
evidence  relating,  or  supposed  to  relate,  to 
the  circumstances  attending  the  giving  of  the 
note  which  was  the  foundation  of  the  action. 
These  circumstances,  so  far  as  they  were  rel- 
evant at  all,  were  matters  for  the  considera- 
tion of  the  Jury,  and  are  not  properly  sub- 
ject-matters for  review  by  this  court  and  the 
inclusion  of  this  evidence  in  the  record  can 
find  no  sufficient  warrant 

The  Judgment  appealed  from  will  therefore 
be  reversed,  and  the  writ  of  attachment  1» 
sued  from  the  circuit  court  for  Anne  Arun- 
del county  to  Howard  county  quashed. 

Judgment  reversed,  and  attachment  quash- 
ed, costs  to  be  paid  by  the  appellees. 


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M0AI.PINE  y.  HoALPnnS 


1021 


(U6  He.  no 

McAIiPINB  et  ■!  ▼.  McAI/PINB. 

(Supreme   Judicial   Court   of   Maine.     Oct   8, 
1917.) 

1.  Action  €=324— Equitable  Defenses— An- 
tenuptial A  QKEEME  NTS— Effect. 

An  antenuptial  agreement  of  a  wife  to  ac- 
cept a  sum  in  lieu  of  all  other  interest  in  her 
husband's  estate,  being  unexecuted  in  that  it 
provided  that  she  should  execute  the  neces- 
sary papers  to  complete  it,  is  not  a  bar  to  an 
action  at  law  by  the  widow  to  recover  her  dis- 
tributive share,  but  may  be  enforced  in  equity. 

2.  Husband  and  Wife  «=329(7)  —  Aktbnttp- 
TiAL  Aqbeements— Execution. 

An  antenuptial  contract,  though  not  signed 
in  the  presence  of  two  witnesses,  as  required  by 
Bev.  St.  1903,  c.  63,  {  6,  is  vaUd  and  bars  the 
wife's  right  by  descent  to  share  in  the  real  or 
personal  estate  of  her  husband. 

3.  Descent  and  DisTBtBunoN  €=»62 — Ante- 
NUPTiAi,  AoBEEMENTs— Effect. 

Such  contract  further  bars  the  wife  from 
petitioning  for  an  allowance  from  the  estate. 

Report  from  Supreme  Judicial  Court,  Cum- 
berland County,  in  Equit.v. 

Bill  by  E>lith  H.  McAlplne  and  others 
against  Alice  C.  McAlpine.  Cese  reported. 
BUI  sustained. 

Arsfued  before  CORNISH,  C.  J.,  and  KING, 
BIRD,  HALBY,  and  PHILBBOOK,  JJ. 

Peabody  &  Peabody,  of  Portland,  for  plain- 
tiffs. Coombs  &  Gould,  of  Portland,  for  de- 
fendant 

HATjIBY,  J.  A  biU  In  equity  asking  for  die 
specific  performance  of  an  antenuptial  agree- 
ment, and  for  an  injunction  restraining  the 
defendant  from  prosecuting  a  petition  for  an 
allowance  filed  by  her  In  the  probate  court 
for  Cumberland  county.  The  defendant  filed 
a  general  demurrer  to  the  bill,  and  an  answer 
admitting  all  the  facts  alleged  In  the  bill;  the 
case  Is  before  this  court  upon  report. 

The  plaintiffs  are  the  ctilldren  of  Silas  H. 
McAlpine,  late  of  Portland,  county  of  Cum- 
berland, who  died  intestate  March  14,  1916; 
one  of  said  children  being  the  administratrix 
of  the  deceased.  The  defendant  is  the  widow 
of  the  said  Silas  H.  McAlpine.  On  January 
6,  1900,  Silas  H.  McAlpine,  then  a  widower, 
and  the  defendant,  then  Alice  C.  Moore,  both 
more  than  21  years  of  age,  being  engaged  to 
be  married,  executed  an  antenuptial  con- 
tract, by  the  terms  whereof  In  consideration 
of  the  mutual  promises  to  marry  and  of  the 
gum  of  $5,000  the  defendant  "agreed  to  re- 
lease and  relinquish,  and  does  hereby  release 
and  relinquish,  any  and  all  claims  of  every 
name  and  nature  upon  the  residue  of  the  es- 
tate of  said  Silas  H.  McAlpine  which,  except 
for  this  agreement  and  contract  as  the  widow 
of  said  Silas  H.  McAlpine  she  would  have 
under  the  law  of  the  state  of  Maine,  or  any 
other  state  of  the  United  States  or  of  any  for- 
eign country.  •  •  •  And  she  further  agrees 
to  sign  all  papers,  and  perform  all  acts,  neces- 
sary to  carry  this  contract  into  execution." 
It  was  provided  that  the  $6,000  named  in  the 


agreonent  should  be  paid  the  widow  after 
the  decease  of  said  Silas  H.  McAlpine. 

The  contract  was  adcnowledged  as  the 
free  act  and  deed  of  both  parties  the  day  of 
Its  date,  January  6,  1900,  but  was  not  exe- 
cuted in  the  presence  of  two  witnesses,  as 
required  by  section  6,  chapter  63,  R.  S.  1903, 
whldi  provides  how  a  marriage  settlement 
shall  be  executed.  January  17,  1900,  the 
parties  were  married  and  lived  together  as 
husband  and  wife  imtll  Mr.  McAlplne's  de- 
cease March  14,  1916. 

The  Inventory  filed  In  the  probate  court 
shows  that  the  estate  of  Mr.  McAlpine  was 
appraised,  real  estate  $3,000,  personal  es- 
tate, $19,366.77.  March  22,  1916,  the  adminis- 
tratrix of  Silas  H.  McAlpine  ottered  to  pay 
to  the  defendant  the  sum  of  $5,000,  accord- 
ing to  the  terms  of  said  agreement,  which 
the  defendant  refused  to  receive  and  release 
the  estate  from  all  claims  according  to  said 
agreement  April  25,  1916,  the  defendant 
filed  in  the  probate  court  for  Cumberland 
county  a  petition  for  an  allowance  as  widow 
out  of  the  personal  estate  of  said  deceased, 
upon  which  notice  was  ordered,  and  this  suit 
is  brought  to  enforce  the  antenuptial  ctm- 
tract  dated  January  6,  1900,  and  prays  that 
the  defendant  be  ordered  to  perform  said 
contract  and  to  execute  and  deliver  to  the 
administratrix  a  release  of  eiII  her  distribu- 
tive share  of  the  estate  and  all  claims  as  wid- 
ow, including  her  claim  for  a  wid- 
ow's allowance,  and  for  other  appropriate  re- 
lief. The  $5,000  tendered  to  the  defendant 
was  paid  Into  court  when  the  bill  was  filed. 
The  only  Issue  in  the  case  is  the  validity 
and  construction  of  the  antenuptial  agree- 
ment above  referred  to. 

The  statute  under  which  the  defendant 
claims  the  agreement  was  executed  was  sec- 
tion 6  of  chapter  63,  Revision  of  1003,  and  so 
much  thereof  as  is  material  reads  as  follows: 

"But  a  husband  and  wife,  by  a  marriage  set- 
tlement executed  in  presence  of  two  witnesses 
before  marriage,  may  determine  what  rights  eadk 
shall  have  in  the  other's  estate  during  the  mar- 
riage, and  after  its  dissolution  by  death,  and 
may  bar  each  other  of  all  rights  in  thar  re- 
spective estates  not  so  secured  to  them." 

[1]  It  is  the  claim  of  the  defendant  tliat, 
as  the  statute  above  quoted  provides  that  the 
agreement  to  bar  the  widow's  right  in  the 
real  estate  of  her  deceased  husband  must  be 
executed  in  the  presence  of  two  witnesses,  and 
as  the  paper  executed  by  the  defendant  was 
not  executed  in  the  presence  of  any  witness, 
that  it  is  not  a  bar;  that  the  widow  can  be 
barred  only  in  the  manner  prescribed  by  the 
statute;  that  the  statutes  are  exclusive  and 
render  all  other  forma  of  antenuptial  agree- 
ments T<Hd  and  consequently  unenforceable 
in  eqtdty.  It  is  admitted  that  the  agreement 
was  not  a  statutory  marriage  settlement,  as 
it  does  not  appear  to  have  been  executed  In 
the  presence  of  two  witnesses,  nor  is  It 
claimed  to  be  a  Jointure  in  Its  technical  legal 
sense,  and  It  is  not  pretended  that  It  is  of  It- 


4IS9For  otbor  caMS  SM  (une  taplc  and  KBY-NVUBBR  in  all  Kay-Numberad  Dlgnts  and  IndaxM 


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self  a  legal  bar  since  It  distinctly  provides 
for  the  further  execution  of  such  papers  as 
may  be  necessary  to  make  its  terms  effective 
in  law.  It  is  an  antenuptial  contract,  an 
agreement  made  by  two  parties  under  no  dis- 
ability, both  being  sui  juris.  The  agreement 
is  not  a  bar  to  an  action  at  law  by  the  widow 
to  recover  her  distributive  share  of  her  de- 
ceased husband's  estate  aa  it  was  not  fully 
executed.  It  provided  that  the  wife  should 
execute  the  necessary  papers  to  complete  it 

In  Bright  V.  Chapman,  105  Me.  62,  72  AtL 
tSO,  the  court,  in  discussing  the  statute  above 
refecred  to,  said: 

"It  does  not  follow  that  the  section  quoted 
coven  the  whole  field  of  marriage  settlements. 
On  the  contrary,  it  is  clear  that  marriage  set- 
tlements may  be  made  which  contain  agreements 
as  to  matters  growing  out  of  the  marriage  re- 
lations other  than  'rights'  in  the  estate  of  one 
or  the  other.  *  •  *  Equity  will  enforce  such 
antenuptial  settlements." 

Practically  the  same  question  involved  In 
this  case  was  discussed  in  1761  In  the  case 
of  Buckinghamshire  v.  Diury  (2d  Ed.)  39,  60, 
in  which  Lord  Hardwlcke  said: 

"The  next  thing  is  the  consideration  of  equi- 
ty, whether  the  jointure,  or  an  equivalent  to  it, 
will  not  bind  in  a  court  of  equity.  *  *  .* 
The  general  rule  is,  equity  follows  the  law  in 
the  substance,  though  not  in  the  mode  and  cir- 
cumstances of  the  case.  Therefore,  if  that  has 
been  done  which  is  equivalent  to  what  the  law 
would  call  a  jointure  or  conveyance  of  any 
other  nature,  it  will  bind  in  equity.  •  •  • 
This  is  built  on  maxims  of  equity,  which  re- 
gards the  substance  and  not  the  form.  What 
for  good  consideration  is  agreed  to  be  done  is 
considered  as  done,  and  allowed  all  the  conse- 
quences and  effect  as  if  actually  done,  especial- 
ly if  the  condition  of  the  parties  is  changed,  for 
that  cannot  be  rescinded;  so  what  is  fairly 
done  before  ought  to  be  established.  •  •  • 
Ekiuity  has  therefore  held,  that  where  such  pro- 
vision has  been  made  before  marriage,  out  of 
any  of  these,  she  shall  be  bound  by  it.  *  *  * 
If  anything  can  be  clear  in  equity,  it  is  this; 
If  such  agreements  are  fairly  entered  into,  they 
will  be  decreed." 

It  Is  true,  as  argued,  that  the  statute  upon 
which  the  respondent  relies  is  the  exclusive 
way  provided  by  statute  for  barring  the  wid- 
ow's right  of  inheritance  In  her  husband's 
estate.  That  is,  it  is  the  only  legal  defense 
that  can  be  offered  in  an  action  at  law 
brought  by  her  for  her  share  of  his  estate 
that  is  given  her  by  the  statute.  It  was  so 
held  in  Llttlefleld  v.  Paul,  69  Me.  627,  which 
was  an  action  of  dower,  and  In  Wentworth  v. 
Wentworth,  69  Me.  247,  which  was  an  action 
for  dower  and  an  appeal  from  an  allowance 
made  by  the  judge  of  probate.  And  the  gen- 
eral rule  was  recognized  in  Pinkham  v.  Pink- 
ham,  95  Me.  71,  49  Atl.  48,  85  Am.  St.  Rep. 
392,  which  was  a  writ  of  entry,  where  the 
agreement  relied  upon  was  executed  during 
coverture.  The  court  In  these  cases  where  it 
was  held  that  the  statute  was  exclusive  was 
discussing  actions  at  law. 

In  nearly  all  the  courts  of  this  country 
where  the  validity  of  agreements  similar  to 
the  agreement  in  this  case  has  been  passed 
upon,  It  has  been  held  that  the  statute  was 


not  exclusive,  but  simply  a  statutory  declara- 
tion that  parties  about  to  be  married  could 
by  executing  a  contract  as  prescribed  by 
statute  bar  the  woman's  Interest  in  her  hus- 
band's estate,  and  that  statutes  similar  to 
ours  do  nof  deprive  her  of  the  power  to 
bar  her  rights  in  her  husband's  estate  1? 
her  antenuptial  agreements.  That  the  stat- 
ute is  but  a  declaration  of  the  effects  of  the 
settlement  in  that  class  of  cases.  As  said  in 
Freeland  v.  Freeland,  128  Mass.  509,  In  con- 
struing a  somewhat  similar  contract: 

"This  is  a  valid  contract  under  the  General 
Statutes,  *  *  *  so  far  as  it  relates  to  the  in- 
terest of  either  of  the  parties  to  the  intended 
marriage  in  tlie  estate  of  the  other  during  the 
coverture.  So  far  as  it  relates  to  the  rights  of 
the  survivor  in  the  estate  of  the  other  after 
the  termination  of  the  marriage  r^ation  by 
death,  it  is  valid,  independently  of  the  statnte." 

Jenkins,  Adm'r,  v.  Holt,  109  Mass.  261, 
was  a  bill  in  equity  brought  to  enforce  the 
specific  performance  of  a  marriage  contract 
by  which  the  defendant  covenanted  not  to 
claim  dower  or  any  distributive  share  of 
her  intended  husband's  estate,  and  the  coart 
said: 

"The  validity  of  such  a  contract,  and  the  pow- 
er of  a  court  of  equity  to  enforce  its  speciSc 
performance,  has  been  fully  recognised  by  this 
court" 

The  defendant  In  that  case  claimed  the 
contract  was  void  because  it  was  not  record- 
ed as  required  by  the  general  statutes,  and 
the  court  said: 

"The  contract  here  sought  to  be  enforced  re- 
lates only  to  the  rights  which  the  survivor  may 
claim  in  the  estate  of  the  other  when  the  mar- 
riage *  •  •  is  terminated  by  death.  Its  va- 
lidity does  not  depend  on  the  statute.  It  is  as 
independent  of  its  provisions  as  a  strict  settle- 
ment by  jointure  or  a  pecunisuy  provision  as- 
sented to  by  her  in  lieu  of  dower,  and  these  have 
long  been  recognized  as  valid  antenuptial  agree- 
ments." 

1.  In  Hiegar  v.  Schalble,  81  Neb.  S3,  115 
N.  W.  560,  17  L.  R.  A.  (N.  S.)  866,  16  Ann. 
Cas.  700,  the  court  reviewed  at  length  the 
decisions  as  to  the  antenuptial  contracts,  and 
shows  that  the  great  weight  of  authority  In 
this  country  is  that  antenuptial  contracts  be- 
tween persons  contemplating  marriage,  set- 
tling prospective  rights  of  the  wife  In  the 
property  of  the  husband,  when  the  marriage 
is  terminated  by  death,  are  valid,  independ- 
ently of  the  statutes,  and  will  be  enforced  by 
the  equity  courts.  And  In  Kennedy  v.  Ken- 
nedy, 150  Ind.  636,  60  N.  B.  756,  the  contract 
did  not  comply  with  the  statute,  and  the 
court  said: 

"No  principle  seems  to  be  more  fully  settled 
at  the  present  time  than  that  an  adult  woman, 
before  her  marriage,  may  bar  her  legal  rights 
in  her  husband's  estate  by  her  agreement  to  ac- 
cept any  other  provisions  in  lieu  thereof,  and 
such  an  agreement  will  be  upheld  and  enforced 
by  the  courts,  in  the  absence  of  fraud  or  im- 

Sosition  upon  her,  and  where  it  may  be  said,  un- 
er  the  particular  drcumstancee,  that  it  is  not 
unconscionable." 

Also  Ix>gan  V.  Philllpps,  18  Mo.  22,  and 
cases  cited  in  Riegar  t.  Schalble,  supra. 


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TrBBETTS  T.  CURTIS 


102S 


[2,  S]  From  an  examination  of  the  anthori- 
tles  there  can  be  no  question  but  that  the 
contract  signed  by  the  plaintiff  In  this  case 
was  a  valid  contract,  and  barred  her  right 
by  descent  to  share  in  the  real  or  personal 
estate  of  ber  husband.  But  it  Is  urged  that 
she  Is  not  barred  from  petitioning  for  an  al- 
lowance from  the  estate.  It  was  held  In 
Rlegar  v,  Schalble,  supra,  that  If  the  ante- 
nuptial contract  was  valid  and  enforceable, 
It  should  be  ^ven  full  effect,  and  the  widow 
denied  any  interest  in,  or  any  part  of,  the 
husband's  estate.  By  the  terms  of  that  con- 
tract her  dower  Interest  was  barred  by  con- 
tract prior  to  marriage,  on  the  same  principle 
the  allowance  awarded  the  widow  by  statute 
would  also  be  barred,  and  the  same  in  this 
case,  that,  the  agreement  being  valid  and 
enforceable,  it  bars  her  right  to  an  allow- 
ance as  It  bars  her  right  to  share  in  the  es- 
tate by  descent  In  Bright  v.  Chapman,  su- 
pra. It  was  held  that  a  marriage  settlement, 
no  broader  than  the  contract  in  this  case, 
Included  a  claim  of  the  widow  for  an  allow- 
ance, and  that  equity  would  enjoin  the  prose- 
cution of  the  petition  for  an  allowance. 

There  being  no  pretense  of  any  fraud  or 
imposition  In  procuring  the  contract,  the 
consideration  therefor  being  adequate,  its 
terms  not  being  unreasonable,  the  parties,  at 
the  date  of  its  execution,  being  competent 
to  contract,  and  they  having  partially  per- 
formed the  terms  thereof,  the  death  of  Silas 
H.  McAlpine  fixed  the  rights  of  the  defendant 
in  his  estate  according  to  the  terms  of  the 
contract,  and  equity  will  decree  that  the 
defendant  execute  the  necessary  instruments 
to  carry  out  the  provisions  of  the  contract 
The  16,000  deposited  with  the  clerk  by  the 
administrator  should  be  paid  the  defendant 
as  the  amount  due  her  by  the  terms  of  the 
contract 

Bin  sustained,  with  costs.  Decree  in  ac- 
cordance with  the  opinion. 


(116  Ue.  S3e) 

TIBBETTS  V. 


CURTIS  et  aL 


(Supreme  Jadidal  Court  of  Maine.     Oct  16, 
1917.) 

1.  Wills  «=>439— Constbtjction— Iwtentiok 
or  Testator, 

The  intention  of  a  testator,  collected  from 
the  whole  will  and  all  the  papers  constituting 
the  testamentary  act  govems  the  construction 
of  the  will. 

2.  Wills  «=>487(3)  —  CoNSTBUcxiorf  —  Evi- 
dence—Declarations OF  Testatok. 

The  intent  of  a  testator  is  to  be  sought  in 
the  will  as  expressed,  and  his  declarations  be- 
fore or  after  the  will  was  made  cannot  aid  the 
interpretation. 

3.  Wills  ®=9656  —  Constbuction  —  Condi- 
tions —  "Contirus  to  Cask  fob  Ueb 
Fatheb." 

A  testator,  who  had  bequeathed  $3,500  to 
his  brotlier,  S.,  executed  a  codicil,  revoking  such 
bequest  and  bequeathing  $2,000  to  C,  in  trust 
to  be  used  for  the  benefit  of  S.,  thereby  giving 
C.  absolute  control  of  such  sum  in  his  discre- 
tion, not  confining  him  to  the  income  for  the 


benefit  of  S.,  "if  the  said  S.  shall  survive  me," 
but  authorizing  him  to  use  the  principal,  if 
necessary.  The  codicil  farther  provided  that,  if 
any  of  the  trust  fund  was  unexpended  on  the 
death  of  S.,  the  trustee  should  give  S.  a  Chris- 
tian burial  and  erect  a  gravestone,  and  that  if 
there  should  be  any  balance  remaining  it  should 
be  paid  to  S.'s  daughter  "providing  she  shall 
continue  to  care  for  her  father,"  or  to  such  per- 
son other  than  the  daughter,  who  should  care 
for  S.  S.  died  before  the  testator,  but  had  not 
been  buried  prior  to  the  testator's  death.  At 
the  date  of  the  codicil.  S.  was  living  with  the 
daughter,  who  was  then  caring  for  him,  and 
connnucd  to  care  for  him  until  his  death.  Held, 
that  the  phrase,  "providing  she  shall  continue  to 
care  for  her  father,"  meant  to  continue  to  care 
for  him  as  she  was  caring  for  him  when  the 
codicil  was  made. 
4.  Wills   «=»77ft— Lapse— Death   of   Bbnb- 

FICIABT  OF  TbUST. 

The  conditional  clause,  "if  the  said  S.  shall 
survive  mo,"  applied  only  to  the  use  of  the  fund 
for  the  benefit  of  S.  during  his  life,  and  did  not 
affect  the  remainder  of  the  testator's  plan,  and 
the  bequest  in  trust  for  the  burial  of  S.  and  the 
erection  of  a  gravestone,  and  to  the  daughter, 
did  not  lapse  because  of  the  death  of  S.  prior  to 
that  of  testator. 

Exceptions  from  Supreme  Judicial  Court, 
Androscoggin  County,  in  Equity. 

Suit  by  Gertrude  Tibbetts  against  Charles 
F.  Curtis  and  others.  A  decree  in  favor  of 
plaintiff  was  af&rmed  by  the  supreme  court 
of  probate,  and  respondents  bring  exceptions. 
Exceptions  overruled. 

Argued  before  CORNISH,  C.  J.,  and  KINQ, 
BIRD,  HANSON,  and  MADIGAN,  JJ. 

White  &  Carter,  of  Lewiston,  for  plaintiff. 
Tascus  Atwood,  of  Auburn,  for  respondents. 

BIRD,  J.  The  will  of  George  W.  Curtis, 
bearing  date  the  26tb  day  of  October,  1910, 
among  other  legacies,  gave  to  his  brother 
SUas  Curtis  the  sum  of  $3,500.  On  the  IStta 
day  of  November,  1915,  he  executed  a  codicil 
to  bis  will,  which,  omitting  formal  parts,  is 
as  follows: 

"I  now  revoke  item  sixth  in  said  will,  where- 
in I  bequeathed  thirty-five  hundred  dollars,  to 
my  brothor  Silas  Curtis,  of  Wayne,  and  I  now 
give  and  bequeath  to  Charles  F.  Curtis  of  Au- 
burn, Maine,  two  thousand  dollars  ($2,000.00), 
in  trust,  to  be  used  by  him  for  the  benefit  of 
my  said  brother  Silas  Curtis,  hereby  giving  said 
Charles  F.  Curtis  absolute  control  of  said  sum 
in  his  discretion,  not  confining  him  to  the  in- 
come thereof,  for  the  benefit  of  my  brother 
Silas,  if  the  said  Silas  shall  survive  me,  but 
authorizing  him  to  use  from  the  principal  of 
the  same,  when  in  his  judgment  it  ihaH  l>ecome 
necessary. 

"Should  any  of  said  trust  fund  be  unexpend- 
ed on  the  death  of  my  said  brother  Silas,  I 
direct  said  trustee  to  use  from  said  fund  to  give 
my  said  brother  a  Christian  burial  and  erect  a 
gravestone  to  his  memory  and,  if  after  these  ex- 
penses shall  have  been  incurred  there  shall  be 
any  balance  remaining,  I  direct  my  said  trustee 
to  pay  it  to  my  niece,  Gertrude  Tibbetts,  pro- 
viding she  shall  continue  to  care  for  her  father. 
If  some  one  other  than  the  said  Gertrude  cares 
for  my  brother  Silas  I  direct  said  trustee  to  pay 
what  may  be  left,  if  any,  to  that  person." 

Both  the  will  and  codicil  were  duly  proved 
and  allowed  in  the  probate  court  of  Andros- 
coggin county  and  defendant  Charles  F.  Cur- 


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tis  appointed  executor.  Silas  Curtis,  baring 
predeceased  the  testator,  Gertrude  Tlbbetts, 
his  daughter,  brought  her  bill  In  equity  for 
the  construction  of  the  codicil  In  the  probate 
court  of  Androscoggin  county.  Other  facts 
essential  to  an  understanding  of  the  case  will 
be  found  in  the  opinion  of  the  Judge  of  pro- 
bate, which  we  quote  in  full: 

"A  decision  of  this  case  calls  for  the  construc- 
tion of  the  codicil  to  the  will  of  George  W.  Cur- 
tis, late  of  Auburn,  deceaaod.  The  codicil  in 
question  is  dated  November  18,  1916.  Silas 
Curtis,  therein  named,  died  December  23,  1915. 
George  W.  Curtis,  the  testator,  died  February 
15,  1916.  It  is  admitted  that  at  the  date  of 
the  codicil  the  said  Silas  Curtis  was  living  with 
the  plaintiff,  who  was  then  caring  for  him,  and 
contmued  to  care  for  him  until  his  death.  It  is 
further  admitted  that  at  the  time  of  the  filing 
o{  the  bill  the  remains  of  said  Silas  Curtis  were 
in  a  tomb  or  receiving  vault  and  had  not  been 
buried,  nor  had  a  gravestone  been  erected  to 
his  memory;  but  while  the  case  has  been  pend- 
ing in  this  court  the  expenses  of  the  burial  anil 
of  the  gravestone  have  been  paid  by  the  respond- 
ent Charles  F.  Curtis,  in  accordance,  as  he  says, 
with  a  request  of  George  W.  Curtis. 

"The  plaintiff  contends  that  by  the  codicil  a 
trust  fund  of  $2,000  was  created,  to  be  applied, 
first,  for  the  benefit  of  .Silas  Curtis,  if  Silas 
survived  the  testator;  second,  to  provide  for  a 
Christian  burial  of  Silas  Curtis  and  for  the 
erection  of  a  gravestone  in  his  memory;  and, 
third,  the  balance  was  to  be  paid  to  the  niece, 
Gertrude  Tibbetts,  provided  she  continued  to 
care  for  her  father. 

"The  contention  is  that  the  clause  'if  said 
Silas  shall  survive  me'  applies  only  to  the  use 
of  the  fund  for  the  benefit  of  Silas  during  his 
life,  and  that  the  further  provisions  indicate  an 
intent  on  the  part  of  the  testator  to  provide  for 
the  burial  of  his  brother  and  for  the  erection 
of  a  gravestone  to  bis  memory,  and  to  recog- 
nize the  care  which  the  plaintiff,  Gertrude  Tib- 
betts, had  rendered  and  should  render  to  her 
father. 

"The  defendant  Charles  F.  Curtis,  on  the  oth- 
er hand,  contends  that  the  whole  bequest  was 
conditional  upon  the  survivorship  of  Silas,  and 
that,  Silas  having  died  before  the  testator,  the 
trust  never  became  operative;  that  there  is  no 
obligatitm  on  his  part  to  pay  from  the  fund  the 
expenses  of  his  burial  or  to  erect  a  gravestone 
to  his  memory;  and  that  the  niece,  Gertrude 
Tibbetts,  is  not  entitled  to  any  portion  of  the 
fund. 

"The  difference  in  the  views  of  the  parties 
arises  from  the  location  of  the  phrase  "if  the 
said  Silas  shall  survive  me,'  which  it  will  be  no- 
ticed is  inserted  between  two  clauses  of  the  will 
relating  to  the  use  of  the  fund.  The  defendant 
Charles  F.  Curtis  would  construe  the  will  as  if 
the  clause  'if  the  said  Silas  shall  survive  me' 
had  been  inserted  after  the  words  'two  thousand 
dollars,'  so  that  the  codicil  would  read: 

"  'I  now  give  and  bequeath  to  Charles  F. 
Curtis,  of  Auburn,  Maine,  two  thousand  dol- 
lars if  my  brother  Silas  Curtis  shall  survive 
me,  in  trust  to  be  used  by  the  said  Charles  F. 
Curtis  for  the  benefit  of  my  said  brother  Silas 
Curtis,  and  hereby  give  said  Charles  F.  Cur- 
tis absolute  control  of  said  sum  in  his  discre- 
tion, not  confining  him  to  the  income  thereof 
for  the  benefit  of  my  brother  Silas,  but  author- 
izing him  to  use  from  the  principal  of  the  same 
when  in  his  judgment  it  shall  be  necessary.' 

"The  counsel  for  the  several  parties  have 
stated  their  contentions  with  much  positivenoss. 
I  have  therefore  examined  the  case  with  much 
care  and  given  it  careful  consideration. 

[1,2]  "It  is  familiar  law,  and  not  disputed, 
that  the  intention  of  the  testator,  collected 
from  the  whole  will  and  all  the  papers  which 
constitute  the  testamentary  act,  is  to  govern; 


that  the  intent  is  to  be  sought  in  the  will  as  ex- 
pressed; and  that  the  declarations  of  the  tes- 
tator before  or  after  the  win  was  made  can- 
not aid  the  interpretation. 

"  'It  may  well  be  doubted  if  any  other  souiee 
of  enlightenment  in  the  construction  of  a  will  is 
of  much  assistance  than  the  application  of 
natural  reason  to  the  langnage  of  the  instru- 
ment, under  the  light  which  may  be  thrown  up- 
on the  intent  of  the  testator  by  the  exttinme 
circumstances  surrounding  its  execution,  and 
connecting  the  parties  and  the  property  devised 
with  the  testator  and  with  the  instrument  it- 
self.' Clarke  ▼.  Johnston  (Miller,  J.)  18  WalL 
493,  21  L.  Ed.  904,  cited  and  quoted  in  Brad- 
bury V.  Jackson,  97  Me.  456,  456,  64  AtL  1068. 

"Citations  of  adjudicated  cases  cannot  afford 
much  aid.  'No  two  wills  are  ever  precisely 
alike.  No  two  testators  are  situated  precisely 
the  same,  and  it  is  both  unsafe  and  unjust  to 
interpret  the  will  of  one  man  by  the  dubious 
light  afforded  by  the  will  of  another.'  Brad- 
bury T.  Jackson,  97  Me.  455,  456,  54  AtL  1070. 

[3, 4]  "After  considering  the  will  and  codicil 
in  all  their  details,  and  weighing  all  portions 
thereof,  I  think  George  W.  Curtis  had  in  mind 
several  objects,  all  parts  of  one  plan,  which 
I  would  state  as  follows: 

"(1)  To  reduce  an  absolute  legacy  of  $3,500 
to  the  smaller  sum  of  $2,000,  placing  the  latter 
sum  in  trust. 

"(2)  To  provide  from  this  fund  for  the  care 
of  his  brother  Silas  while  he  lived. 

"(3)  To  provide  for  his  burial  and  the  erec- 
tion of  gravestones,  having  in  mind  the  con- 
tingency, which  has  happened,  that  his  own 
death  might  follow  the  death  of  his  brother  so 
closely  that  he  could  not  attend  to  the  burial 
himself. 

"(4)  To  make  provision  for  the  niece,  Ger- 
trude Tibbetts,  if  she  continued  to  care  for 
her  father,  as  she  was  doing  when  the  codicil 
was  made;    and 

"(5)  If  through  sickness,  death,  or  other  cause. 
Mrs.  Tibbetts  could  not  care  for  Silas  Curtis,  to 
provide  for  whoever  mi^ht  furnish  such  care. 

"I  think  that  the  phrase  'providing  she  shall 
continue  to  care  for  her  father*  means  to  contin- 
ue to  care  for  him  as  Mrs.  Tibbetts  was  caring 
for  him  when  the  codicil  was  made,  and  as  she 
continued  to  care  for  him  until  the  day  of  his 
death.  If  the  codicil  is  construed  as  the  defend- 
ant Charles  F.  Curtis  contends,  by  reading  the 
conditional  clause  into  the  instrument  immedi- 
ately following  the  amount  of  the  legacy  and 
before  the  declaration  of  trust,  the  whole  plan 
has  failed;  he  is  under  no  obligation  to  pay 
for  the  burial  of  Silas  and  the  erection  Ol 
gravestones,  and  there  is  no  recognition  of  the 
care  rendered  by  the  plaintiff  to  SUas  Curtis. 
By  his  action  in  assuming  to  pay  these  expenses 
he  cannot  affect  the  plaintiff's  rights.  But 
reading  the  codicil  as  it  is  written,  with  the 
conditional  clause  placed  parenthetically  be- 
tween the  clause  relating  to  the  application  of 
the  income  and  the  clause  authorizing  the  use 
of  tbe  principal,  the  intention  of  the  testator, 
that  tbe  death  of  Silas  is  not  to  affect  the  re- 
mainder of  tbe  plan,  is  emphasized  and  made 
clear. 

"I  cannot  think  that  it  was  the  intention  of 
the  testator  that  the  whole  plan  should  fail  it 
he  survived  his  brother,  and  the  language  of 
the  codicil,  considered  in  all  its  parts,  does  not 
require  such  a  construction. 

"So  construing  the  codicil,  the  case  falls  rath- 
er under  the  doctrine  of  Thompson  v.  Thornton, 
197  Mass.  273,  83  N.  E.  880,  and  simUar  cases 
cited  in  behalf  of  the  plaintiff,  than  under  the 
doctrine  of  Huston  v.  Dodge,  111  Me  246,  251, 
88  Ati.  888,  and  Harlow  v.  Bailey,  189  Mass. 
208.  75  N.  E.  259,  cited  in  behalf  of  the  de- 
fendant Curtis. 

"I  therefore  rule  that  the  bequest  to  Charles 


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F.  Curtis  of  12,000  in  trust,  fia  nade  in  said 
codicil,  has  not  lapsed ;  that  the  expenses  of 
the  burial  of  Silas  Curtis  and  the  erection  of 
a  gravestone  to  his  memory  are  a  charge  against 
that  fund ;  and  that  the  plaintiff,  Gertrude  Tib- 
betts,  is  entitled  to  the  balance  of  the  fund 
after  these  expenses  have  been  paid." 

From  the  decree  entered  In  accordance 
with  the  opinion,  and  ordering  that  the  costs 
of  complainant,  taxed  at  a  sum  certain,  be 
paid  from  the  general  assets  of  the  estate, 
the  respondents  appealed,  giving  as  reasons 
of  appeal:  (1)  That,  it  being  admitted  that 
Silas  died  before  the  testator,  the  legacy  of 
$2,000  In  trust  lapsed ;  (2)  that  the  only  in- 
terest ot  complainant  in  the  estate  was  con- 
tingent upon  her  father's  surviving  the  tes- 
tator and  her  continuing  to  care  for  her 
father  in  case  he  survived  the  testator;  (3) 
that  the  complainant  is  entitled  to  no  part  of 
the  trust  fund,  so  called,  as  It  never  came  in- 
to being;  (4)  that  the  complainant  is  not  en- 
titled to  costs. 

Upon  hearing  in  the  supreme  court  of  pro- 
bate, It  was  decreed  that  the  appeal  be  dis- 
missed, with  costs,  the  decree  of  the  Judge 
of  probate  aUlrmed,  and  the  case  remanded 
to  the  probate  court. 

Tb  this  decree  of  the  supreme  court  of  pro- 
bate the  respondents  had  exceptions,  upon 
which  the  case  is  now  before  us. 

It  Is  the  opinion  of  tlie  court  that  the  ex- 
ceptions must  be  overruled,  for  the  reasons 
set  forth  in  the  opinion  of  the  Judge  of  pro- 
bate, which  the  Justice  sitting  In  the  supreme 
court  of  probate  made  part  of  his  rescript. 
To  it  we  can  add  nothing,  save  to  call  atten- 
tion to  the  cases  of  Adams  v.  Legroo,  111 
Me.  302,  807,  89  AU.  63,  and  Prescott  v.  Pres- 
cott,  7  Mete.  (Mass.)  141,  146,  which  are  in 
harmony  with  the  opinion. 

Exceptions  overruled. 

Costs  of  complainant  in  this  court  to  be 
paid  from  the  general  assets  of  the  estate. 

Case  remanded  to  the  supreme  court  of 
probate  of  Androscoggin  county  for  further 
proceedings  in  accordance  with  this  opinion. 


(90  N.  J.  lAW.  i68) 

SOCIETY  FOR  ESTABUSHING  USEFUL 
MANUFACTURES  v.  BOARD  OF  CON- 
SERVATION AND  DEVELOPMENT  et  al. 

(Supreme  Court  of  New  Jersey.    Sept.  14, 
1917.) 

(Syllabvt  hy  the  Oouri.) 

1.  Watem  and  Wateb  OotjRSBs  <s=190— Mtr- 
KiciPAL    Watck     Supply— Appbovai,     bt 

BOABD  or  CONSKBVATION  AND  DKVELOPIIXNT 

—Conditions. 
Upon  an  application  by  the  district  board  of 
water  supply  commissioners,  under  the  act  of 
March  16,  1916  (P.  L.  p.  129),  to  the  board  of 
conservation  and  development,  created  by  Act 
April  8,  1915  (P.  L.  p.  426),  for  iu  approval  and 
consent  to  the  diversion  of  water  for  an  addition- 
al water  supply  to  the  cities  of  Newaric  and 
Paterson,  the  board  of  conservation  and  develop- 
ment has  power  to  attach  reasonable  terms  and 


conditions  to  its  approval  and  consent  which,  are 

germane  to  the  subject-matter. 

2.  Watebs  and  Wateb  Courses  ^=3190— Mu- 
nicipal    Water     Supplt  —  Consent     of 
Board  op  Conservation  and  Development 
—Reasonableness  or  CosDrrioNS. 
For  Budi  terms  and  conditions,  la  this  ease^ 

see  the  opinion. 

Certiorari  by  the  Society  for  ESstablishing 
Useful  Manufactures  to  test  the  legality  of 
the  approval  and  consent  by  the  Board  of 
Conservation  and  Development,  on  a  petition 
filed  by  the  North  Jersey  District  Water 
Supply  Commission.    Certiorari  dismissed. 

Argued  June  term,  1917,  before  SWAYZB, 
BBRGBXSr,  and  BLACK,  JJ. 

Humphreys  &  Sumner,  of  Paterson,  and 
Gilbert  Collins,  of  Jersey  City,  for  prosecu- 
tor. John  W.  Wescott,  Atty.  Gen.,  for  the 
State.  Harry  Kalisch,  of  Newark,  for  City 
of  Newark.  Francis  Scott,  of  Paterson,  for 
City  of  Paterson.  Spaulding  Frazer,  of  NeW' 
ark,  for  North  Jersey  Dlst.  Water  Supply 
Commission. 

BLACK,  J.  Approval  of  the  application  of 
the  North  Jersey  District  Water  Supply  Com- 
mission, and  a  consent  to  the  diversion  of  wa- 
ter from  the  Wanaque  river,  as  proposed 
therein,  for  an  additional  water  supply  for 
the  cities  of  Newark  and  Paterson  was  given 
by  the  board  of  conservation  and  develop- 
ment on  the  19th  day  of  December,  1916. 
This  approval  was  made  under  a  iwUtion 
filed  by  the  North  Jersey  District  Water  Sup- 
ply Commission  on  the  9th  day  of  October, 
1916.  The  board  of  conservation  and  devel- 
opment was  created  by  an  act  of  the  Legisla- 
ture, approved  April  8,  1915  (P.  L.  1915,  p. 
426).  The  certiorari  was  issued  in  this  case 
to  test  the  legality  of  such  approval  and  con- 
sent The  approval  and  consent  was  given 
subject  to  the  following  terms  and  condi- 
tions: 

(1)  The  North  Jersey  District  Water  Supply 
Commission  shall  pay  or  cause  to  be  paid  to  the 
state  on  behalf  of  each  of  the  munidpalities  sup- 
plied with  water  under  this  approval  such  an- 
nual charge  as  is  now  made  or  may  be  here- 
after authorized  by  law. 

(2)  This  approval  shall  not  become  operative 
unless  said  commission  shall  have  filed  With 
this  board  within  90  days  from  date  hereof  its 
written  agreemeiit  accepting  the  terms  and  con- 
ditions hereby  imposed. 

(3)  The  North  Jersey  District  Water  Supply 
Commission  shall  in  good  faith  begin  the  con- 
struction of  the  storage  reservoir  mentioned  in 
its  application  within  one  year  from  the  date  of 
this  approval  and  shall  complete  the  same  vrithia 
five  years. 

(4)  The  maximum  diversion  from  the  Wana- 
que river  autiiorized  by  this  approval  is  an  aver- 
age of  50,000,000  gallons  per  diem  for  any  peri- 
od of  thirty  consecutive  days. 

(5)  The  dry-season  flow  of  the  Wanaque  river 
below  the  dam  must  at  all  times  be  maintained 
at  a  minimum  of  12,000,000  gallons  per  diem. 

(6)  This  approval  is  given  subject  to  the  vest- 
ed rights  of  all  persons,  corporations,  or  munic- 
ipalities affected  by  the  proposed  plan. 

(7)  In  the  event  that  any  of  the  conditioBs 
herein  imposed  axe  violated  and  such  violation 


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101  ATLANTIC  REPORTER 


(N.J. 


■hall  be  establiBhed  to  tiie  aatisfaction  of  this 
board,  this  assent  shall  thereby  be  abrogated. 

The  proeecutor  has  valuable  water  rights 
in  the  Passaic  river,  of  which  the  Wanaque 
river  is  a  tributary. 

[1]  The  ground  of  attack  is  that  under  sec- 
tion 6  of  Act  of  1916,  p.  131,  the  jurisdiction 
of  the  board  of  conservation  and  develop- 
ment is  confined  to  giving  or  withholding  its 
consent  to  the  proposed  diversion  and  to 
nothing  else;  in  other  words,  the  terms  and 
conditions,  as  set  forth  above,  on  which  the 
approval  and  consent  were  given,  renders  it 
Illegal.  A  correct  solution  of  this  question 
involves,  of  course,  a  critical  examination  of 
the  statutes,  under  which  these  two  boards 
were  created.  A  short  summary  or  history  of 
such  legislation  is  as  follows:  A  state  water 
supply  commission  was  created  by  an  act  of 
the  Legislature,  approved  June  17,  1907  (P. 
L.  1907,  p.  633).  Among  other  things,  it  pro- 
vides for  the  approval  of  plans  for  munid- 
pal  corporations,  obtaining  new  or  an  addi- 
tional source  of  water  supply.  It  may,  by 
that  act,  "either  approve  such  application,  re- 
ject it  entirely,  or  ai^rove  the  same  subject 
to  such  reasonable  terms  and  conditions  as 
the  commission  may  prescribe."  Section  3  of 
this  act  was  referred  to  In  Mundy  v.  Foun- 
tain, 76  N.  J.  Law,  701,  71  Atl.  603.  By  the 
act  approved  April  8,  1915  (P.  L.  1915,  p. 
426),  the  board  of  conservation  and  devel- 
opment, the  defendant  in  this  suit,  was  Cre- 
ated as  the  successor  to  the  state  water  sup- 
ply commission,  repealing  all  acts  inconsist- 
ent therewith  (section  16),  but  "shall  succeed 
to  and  exercise  all  the  rights  and  powers  and 
perform  all  the  duties  now  exercised  and 
IKrformed  by  or  conferred  and  charged  upon 
the  state  water  supply  commission."  Section 
5.  "The  board  of  conservation  and  develop- 
ment shall  have  full  control  and  direction  of 
all  state  conservation  and  development  proj- 
ects and  of  all  work  in  any  way  relating 
thereto,  except  such  work  as  is  conferred  up- 
on other  boards,  not  included  within  the  pro- 
visions of  this  act"  Section  7.  By  the  act 
approved  March  16,  1916  (P.  I*  1916,  p.  128), 
the  state  was  divided  into  two  water  supply 
districts,  to  be  known,  respectively,  as  the 
North  Jersey  Water  Supply  District  and  the 
South  Jersey  Water  Supply  District  The 
act  approved  March  16,  1916  (P.  U  1916,  p. 
129)  provides  for  the  anwintmeut  of  district 
boards,  as  provided  and  authorized  by  the 
previous  act  and  defining  their  powers.  It 
was  under  this  act  that  the  commissioners  of 
the  North  Jersey  Water  Supply  District  pe- 
titioned for  the  consent  which  is  the  disput- 
ed point  in  this  litigation  (section  6,  which 
provides  "upon  the  filing  of  such  petition  the 
said  district  water  supply  commission,  after 
obtaining  the  consent  of  the  state  water  sup- 
ply commission  or  its  successor,  to  the  diver- 
sion of  waters  for  such  water  supply,"  shall 
proceed  to  formulate  plans,  etc.).    The  argu- 


ment is:  This  section  provides  for  a  bare 
consent  and  nothing  more.  But  this  ignores 
the  legislation  and  the  power  granted  in  that 
legislation  to  the  board  of  conservation  and 
development  above  cited.  We  think  it  Is  too 
plain  for  argument  that  under  this  legisla- 
tion the  board  of  conservation  and  develop- 
ment had  not  only  Implied,  but  express,  pow- 
er to  attadi  to  its  approval  and  consent  the 
terms  and  conditions  above  set  forth,  as 
shown  in  the  record.  In  addition  to  what 
seems  to  us  to  be  the  clear  expressed .  inten- 
tion of  the  Legislature,  these  terms  and  con- 
ditions are  all  strictly  germane  to  the  sub- 
ject-matter that  was  then  before  the  board 
for  action;  they  are  necessary  Incidents  to 
make  eflCective,  If  not  efficient  the  approval 
and  consent  of  the  board.  The  construction 
contended  for  by  the  prosecutor  is  too  narrow 
and  artificial;  it  would  strip  such  approval 
and  consent  of  its  vitality,  and,  as  we  think, 
in  direct  opposition  to  the  expressed  inten- 
tion of  the  Legislature,  viz.  that  the  board  of 
conservation  and  development  had  the  power 
to  impose  these  terms  as  conditions  prece- 
dent to  its  approval  and  consent 

[21  The  only  other  question  is  whether 
such  terms  and  conditions  Imposed  were  rea- 
sonable. We  think  th^re  Is  nothing  unrea- 
sonable in  any  of  them.  There  is  nothing 
else  mooted  in  the  record  which  calls  for  dis- 
cussion. 

The  certiorari  in  this  case  la  dismissed, 
with  costs. 


PASSAIC  TRUST  &  SAFE  DEPOSIT  CO.  t. 

EAST  RIDGELAWN  CEMETERY  et  al 

(No.  42/356.) 

(Court  of  Chancery  of  New  Jersey.    Aug.  6, 
1917.) 

Tbusts  $=3178— Exeodtion— iRSTBUcnoif  or 

COUBT, 

The  terms  of  a  trust  not  beine  alleged  to  be 
in  doubt,  a  bill  for  the  aid  and  direction  of  the 
court  to  the  complainant  as  trustee  of  certain 
express  trusts  will  be  dismissed,  where  it  ap- 
pears therefrom  that  there  is  no  present  duty  to 
be  performed  by  complainant  and  that  no  such 
duty  can  arise  until  there  is  a  demand  for  dis- 
tribution of  the  trust  fund  which  complainant 
controls. 

Bill  between  the  Passaic  Trust  &  Safe  De- 
posit Company  and  the  East  Rldgelawn  Cem- 
etery and  others.    Bill  dismissed. 

William  F.  Oaston,  of  Passaic,  and  John 
Guyton  Boston,  of  New  York  City,  for  com- 
plainant Edwards  &  Smith,  Raymond  Daw- 
son, and  M.  T.  Rosenberg,  all  of  Jersey  City, 
and  Adam  Frank,  of  New  York  City,  for  de- 
fendants. 

FOSTER,  V.  C.  This  is  a  motion  to  strike 
out  the  bill  of  complainant.  Thirty-one  rea- 
sons have  been  assigned  against  the  entire 
bill,  and  13  additional  reasons  against  part 
of  it 

The  bill  seeks  a  variety  of  relief,  and  It  Is 


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PASSAIC  TfiXJST  A  S.  D.    CO.  v.  EAST  KIDQEL.AWN  CEMETERY 


1027 


ostensibly  filed  for  the  aid  and  direction  of 
the  court  to  the  complainant,  as  trustee  of 
certain  expressed  trusts;  actually  it  Is  filed  to 
obtain  a  determination,  among  other  matters, 
of  the  validity  of  certain  cemetery  promotion 
schemes  which  were  not  approved  In  this 
court.  In  Bast  Rldgelawn  Cemetery  v.  BVank, 
77  N.  J.  Kq.  36,  78  Aa  1006,  or  In  the  Court  of 
Elrrors  and  Appeals,  In  Attorney  General  v. 
Linden  Cemetery,  85  N.  J.  Eq.  GOl,  06  AtL 
1001.  These  cases  did  not  pass  directly  upon 
the  merits  of  certain  so-called  curative  legis- 
lation, viz.  chapter  299  of  P.  L.  1911,  and 
chapter  272  of  P.  L.  1913,  mentioned  in  this 
bill. 

The  bill,  in  addition  to  the  above  matters, 
propounds  a  number  of  questions,  some  of 
which  relate  to  the  discovery  of  the  persons 
to  whom  and  their  interest  In  the  trusts 
which  it  la  alleged  the  cestui  que  trust  trans- 
ferred to  them.  Some  relate  to  questions 
now  undetermined  in  causes  pending  in  this 
court  and  in  the  Supreme  Court  of  the  state 
of  New  York,  wherein  the  validity  of  the 
trusts  is  brought  in  question;  and  some  relate 
to  the  prosecution  of  actions,  or  the  protec- 
tion of  alleged  rights  with  which  the  allega- 
tions of  the  blU  do  not  disclose  complainant 
to  be  in  any  way  concerned. 

In  regard  to  the  expressed  trusts  in  which 
complainant  is  alone  directly  Interested,  it 
appears  from  the  bill  that  the  defendants 
Adam  Frank  and  George  B.  Pond  caused  the 
defendants  East  Rldgelawn  C«metery  and 
West  Rldgelawn  Cemetery  to  organize  In  1905, 
and  that  through  their  "dummy,"  the  defend- 
ant Herbert  Oruber,  they  caused  certain 
lands  in  Passaic  county  to  be  conveyed  to 
complainant  upon  certain  expressed  trusts, 
set  forth  at  length  in  the  deeds  of  conveyance 
and  in'  two  declarations  of  trust ;  that  subse- 
quently complainant,  as  trustee,  conveyed 
these  lands  to  the  cemetery  companies  upon 
the  same  expressed  trusts,  among  which  were 
that  the  lands  were  to  be  used  for  cemetery 
purposes.  As  a  consideration  for  these  con- 
veyances the  cemetery  companies  issued  to 
Bald  Gruber  a  paper  which  is  termed  a  "Joint 
ownership  certificate,"  for  13,500  "shares  of 
this  association,"  which  were  transferable 
by  the  holder.  Gruber  transferred  the  shares 
represented  by  this  certificate  to  Frank  and 
Fond;  and  subsequently  Frank  acquired  all 
of  Pond's  Interest  In  them. 

Complainant  by  its  declarations  of  trust 
further  stipulated  that  one-half  of  the  pro- 
ceeds of  the  sale  of  lots  and  plots  in  each 
cemetery  was  to  be  paid  to  It  as  trustee,  and 
to  be  by  it  divided  among  the  13,500  shares 
represented  by  ownership  certificates,  duly 
authenticated  by  complainant  as  trustee.  Al- 
though it  is  alleged  that  Frank  has  sold  a 
number  of  the  shares  represented  by  the 
ownership  certificate  issued  to  Gruber  and 
assigned  to  him,  none  of  the  purchasers 
tliereof  have  bad  the  shares  transferred  to 
tbem  on  the  books  of  the  cemetery  compa- 
nies, and  caused  new  ownership  certificates 


therefor  to  be  issued  to  them,  duly  certified, 
as  required,  by  complainant  as  trustee.  And 
no  offer  has  been  made  to  complainant  by  any 
one  to  surrender  ownership  certificates  for 
the  trust  certificates,  as  required  by  the  dec- 
laration of  trust. 

Complainant  has  In  band  from  the  pro- 
ceeds of  the  sale  of  lots  and  plots  in  East 
Rldgelawn  Cemetery  about  $11,000,  and  has 
not  received  any  payments  from  West  Rldge- 
lawn Cemetery.  Demands  have  been  made 
on  complainant  by  purchasers  of  ownership 
shares  from  Frank  for  a  share  of  this  fund, 
and  several  actions  have  been  commenced 
against  complainant  to  compel  its  distribu- 
tion, and  most  of  them  have  been  discontin- 
ued. 

From  the  situation  thus  presented  it  Is  ap- 
parent there  Is  no  present  exigency  in  respect 
to  these  matters,  requiring  an  answer  from 
complainant  or  from  the  court.  The  terms 
of  the  trust  are  not  alleged  to  be  In  doubt. 
It  is  not  claimed  that  complainant  cannot  de- 
termine from  the  declarations  of  trust  who 
are  entitled  to  participate  in  the  distribution 
of  the  trust  fund,  nor  Is  it  alleged  that  more 
than  one  claimant,  or  class  of  claimants,  has 
qualified  under  the  terms  of  the  trusts 
whereby  they  are  entitled  to  participate  in 
the  distribution  of  the  fund,  and  it  is  not 
shown  that  any  occEislon  has  yet  arisen  call- 
ing for  the  performance  of  any  duty  on  the 
part  of  complainant  as  trustee. 

l^ere  are  a  number  of  matters  presented 
by  the  bill  which  it  appears  can  be  settled, 
and  are  awaiting  determination  in  the  other 
actions  now  pending  in  this  court  and  in  the 
Supreme  Court  of  New  Tork.  The  remaining 
matters  presented  by  the  bill  merely  call  for 
the  court's  advice  and  not  for  its  aid  and  di- 
rection. 

It  is  well  settled  tliat: 

"Where  the  duty  of  a  trustee  is  involved  in 
doubt,  it  is  his  right  to  ask  and  receive  the  aid 
and  direction  of  a  court  of  equity  to  the  extent 
that  his  necessities  may  require."  Traphagen  v. 
Levy,  45  N.  J.  Eq.  448,  18  Atl.  222. 

"This  right  does  not,  however,  extend  to  the 
solution  of  propositions  which  do  not  present 
themselves  as  requiring  any  action  by  the  trus- 
tee, or  where  the  events  which  must  control  the 
rights  of  the  parties  and  the  duties  of  the  trus- 
tee have  not  transpired  and  are  yet  uncertain, 
•  •  •  or  which  are  so  clear  as  to  admit  of 
no  question.  The  court  should  be  caUed  on  to 
decide  and  direct  not  to  counsel  and  advise." 
Merlin  v.  Blagrave,  25  Beav.  139 ;  Vauness  Ex- 
ecutors V.  Jacobus,  17  N.  J.  Eq.  15.'1;  Griggs  v. 
Veghte,  47  N.  J.  Eq.  179,  19  Atl.  867;  Bonuell 
V.  Bonnell,  47  N.  J.  Eq.  540,  20  AU.  895 ;  House 
V.  Ewen,  37  N.  J.  Eq.  368;  Dillingham  7.  Mar- 
tin, 61  N.  J.  Eq.  2<6,  49  AU.  143;  Hewitt  v. 
Green,  77  N.  J.  Eq.  345,  77  Atl.  25;  Ogden  v. 
McLane,  73  N.  J.  Eq.  159,  67  Atl.  695. 

From  the  bill  it  appears  there  is  no  present 
duty  to  be  performed  by  the  complainant  as 
trustee,  and  by  the  terms  of  the  declarations 
of  trust  no  such  duty  can  arise  until  owner- 
ship certificates,  duly  authenticated  by  com- 
plainant as  trustee,  are  thereby  converted  In- 
to trust  certificates,  and  untU  the  holders  of 
such  trust  certificates  demand  the  distrlbu- 


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1028 


101  ATLANTIC  RBPORTEE 


(N.J. 


tlon  among  them  ot  the  trust  fund  whidi 
ccnnplalitajat  controls ;  consequently  complain- 
ant Is  not  at  present  In  need  of  the  aid  and 
direction  of  this  court. 

In  view  of  the  conclusion  I  have  reached 
on  this  feature  of  the  bill,  I  have  not  consid- 
ered it  necessary  to  pass  upon  the  other  ob- 
jections urged  against  it 

A  decree  wUl  be  advised  that  the  bill  be 
dlamlBsed. 


DA  OAMA  y.  I>>AQUILA. 

(Court  of  Chancery  of  New  Jersey.    Jnne  21, 
1917.) 

CovRRANTS  €=»  103(3)  —  Lacbks  —  Waiving 
Bkeach  of  Kestbictivb  Covenant. 
Where  complainant  saw  defendant  erecting 
a  garage  on  his  lot  adjoining  berg,  but  for  some 
time  made  no  objcctiun  or  protest,  and  allowed 
bim,  in  Ignorance  of  a  restrictive  covenant  and 
of  her  attitude  respecting  it,  to  spend  a  consid- 
erable sum  of  money  in  practically  finishing  the 
building,  and  after  calling  his  attention  to  the 
restrictive  covenant  encouraged  him  to  proceed 
with  the  completion  of  the  building  by  express- 
ing her  willingness  to  waive  the  restriction  if 
an  adjoining  owner's  consent  could  be  obtained, 
and  even  after  ordering  the  removal  of  the  gar- 
age waited  for  over  a  year  before  fiUng  a  bill 
for  a  mandatory  injunction,  she  was  estopped 
by  her  conduct  and  laches  from  enforcing  the 
covenant  by  injjunction,  regardless  of  the  com- 
parative magnificence  or  insignificance  of  the 
buildings  on  the  two  lota,  since  an  application 
for  a  mandatory  injunction  to  protect  restrictive 
building  covenants  must  be  made  promptly. 

Suit  by  Sllzabetb  Bates  Da  Gama  against 
Ernest  A.  D'Aquila.  Decree  dlsmli^lng  the 
bill  on  conditions. 

Benjamin  P.  Morris,  of  Long  Branch,  and 
Wilbur  A.  Helsley,  of  Newark,  for  complain- 
ant William  J.  Kearns,  of  Newark,  for  de- 
fendant 

FOSTER,  V.  O.  Complainant  by  her  bill 
seeks  a  mandatory  injunction  to  compel  the 
removal  of  a  garage  built  on  certain  proper- 
ty fronting  on  North  Bath  avenue  in  the  city 
of  Long  Branch,  on  the  ground  that  the  ga- 
rage was  built  in  violation  of  a  restrictive 
covenant  against  the  erection  of  any  build- 
ing on  the  premises  owned  by  defendant  On 
June  17,  1901,  James  R.  Booth,  who  then 
owned  the  land  now  owned  by  defendant  and 
other  lands  in  the  rear  of  the  same,  entered 
into  an  agreement  In  writing  with  Arthur  H. 
Ilearn,  the  former  husband  of  complainant 
and  the  owner  of  the  property  adjoining  the 
Booth  property  on  both  sides  and  in  the  rear, 
by  which  Heam  agreed  to  buy  ttom  Booth  a 
portion  of  the  rear  of  the  Booth  lot  on  which 
was  an  old  stable,  for  $500.  The  agree- 
ment contained  the  following  provision: 

"It  is  further  agreed,  that  in  consideration 
of  a  covenant  on  the  part  of  the  said  fiearn 
that  he  will  restrict  the  front  of  his  property 
on  North  Bath  avenue  that  lies  between  the  prop- 
erty of  said  Booth  and  the  Jewish  Synagogue 
against  any  building  or  nuisance  ever  being 
erected  or  maintained,  north  of  a  line  where  the 
said  Heam's  property  would  be  crossed  by  the 


present  front  or  north  line  of  the  Jewish  Syna- 
gogue building  if  extended  to  the  property  of 
said  Booth,  the  said  Booth  shall  restrict  the 
remaining  portion  of  bis  property  between  the 
lot  hereby  sold  and  North  Bath  avenue,  so  that 
no  building  of  any  kind,  and  no  extensions  to 
the  present  building,  or  nuisance  of  any  kind 
shall,  at  any  time  hereafter,  be  erected  or  main- 
tained thereon,  it  being  understood  that  no 
buildings  of  any  kind  whatsoever  except  the 
dwelling  house  now  thereon  or  any  house  here- 
after erected  on  the  same  site,  shall  be  erect- 
ed on  any  part  of  the  premises  of  said  Booth 
fronting  on  North  Bath  avenue  at  any  time 
hereafter.  •  •  •  All  the  covenants,  restric- 
tions and  agreements  herein  contained  are  to 
extend  to  the  heirs  or  assigns  of  the  respective 
parties  hereto,  and  are  to  run  with  the  lands." 

Booth  and  his  wife,  by  deed  dated  July 
17,  1901,  conveyed  the  property  to  Heam, 
and  In  the  deed  the  agreement  to  restrict 
quoted  above  was  set  forth,  but  the  further 
agreement  that  the  covenants,  etc.,  were  to 
extend  to  the  heirs  and  assigns  of  the  respec- 
tive parties  and  were  to  run  with  the  land, 
was  not  stated  in  the  deed.  The  agreement 
and  deed  were  recorded  on  July  23,  1901. 
Both  Mr.  Booth  and  Mr.  Hearn  died  some 
years  ago  seised  ot  their  respective  proper- 
ties, without  having  taken  any  further  action 
with  respect  to  the  restrictions  to  be  placed 
thereon.  Complainant  became  the  owner  of 
Mr.  Heam's  property,  and  Herbert  Booth  in- 
herited the  property  of  his  father.  Some 
time  in  the  spring  of  1914  complainant  in 
contemplation  of  the  sale  of  part  of  the 
Hearu  property  located  on  North  and  South 
Bath  avenues,  at  pabllc  auction  on  May  14, 
1914,  communicated  with  Herbert  Booth,  the 
owner  of  defendant's  property,  suggesting  or 
proposing  the  release  of  the  restrictions  from 
their  respective  properties,  and  Booth  In  re- 
ply expressed  his  willingness  to  release  her 
property  and  to  have  his  property  released 
therefrom,  and  expressed  the  opinion  that 
if  complainant  desired  a  formal  release  ex- 
ecuted, she  should  pay  for  Its  preparation. 
On  April  30,  1914,  complainant's  attorney  in 
Washington  wrote  Herbert  Booth,  stating: 

"I  have  been  instructed  by  Madame  Da  Gama, 
wife  of  the  Brazilian  embassador  at  this  capital 
(formerly  Mrs.  Elizabeth  Bates  Hearn)  to  pre- 
pare a  cancellation  of  the  restrictions  affecting 
certain  real  estate  under  an  agreement  made 
by  Mr.  James  R.  Booth  and  Mr.  Arthur  H. 
Hearn,  former  husband  of  Madame  Da  Gama, 
but  the  papers  which  have  been  turned  over  to 
me  do  not  show  clearly  what  those  restrictions 
are.  *  •  •  I  should  be  obliged  to  you  if  you 
would  send  me  a  draft  of  the  proposed  release, 
or  a  copy  of  the  restrictions  contained  in  the 
deeds." 

It  does  not  satlstactorily  appear  what  re- 
ply, If  any,  Mr.  Booth  sent  to  this  letter,  and 
apparently  a  formal  release  was  never  ex- 
pected, but  he  and  the  members  of  his  family 
considered  the  matter  closed,  and  believed 
that  the  restrictions  had  been  removed  from 
his  and  from  complainant's  property.  By 
deed  dated  February  11,  1916^  Booth  and 
wife  conveyed   the  premises  to  defendant 


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DA  OAMA  T.  D'AQUILA 


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witboat  any  reference  to  or  mention  of  the 
restrictions. 

Defendant  Is  a  Catholic  priest  In  charge 
of  a  church  In  Newark.  He  spends  some 
days  of  each  week  during  the  summer  at  his 
home  In  Long  Branch,  traveling  between 
Newark  and  Long  Branch  In  an  automobile. 
Some  time  In  March,  about  a  month  after 
taking  title,  he  began  the  erection  of  the  ga- 
rage In  question  In  which  to  store  his  car. 
At  the  time  he  commenced  the  building,  and 
In  fact  until  some  time  In  May,  defendant 
had  no  actual  knowledge  of  the  restrictions. 
The  garage  Is  not  a  rery  large  or  espenslTe 
affair,  but.  If  finished  as  planned,  It  would 
compare  favorably  with  other  garage  build- 
ings In  the  neighborhood.  Complainant  saw 
the  garage  In  the  course  of  erection  about 
April  10th,  but  made  no  objection  or  protest 
against  It,  and  did  not  call  defendant's  at- 
tention to  the  restrictions  until  her  New 
lork  attorney  wrote  him  on  May  24,  1916. 
At  this  time  the  building'  was  eubstaptially 
completed,  except  for  the  hanging  of  the 
doors  and  windows  and  the  flnishing  of  the 
roof.  On  May  29, 1916,  defendant  wrote  com- 
plainant. Informing  her  of  the  receipt  of  the 
letter  from  her  attorney  and  explaining  the 
garage  had  been  erected  by  him  in  ignorance 
of  the  restrictions,  and  asking  her  permis- 
sion to  do  the  small  amount  of  work  neces- 
sary to  complete  it.  In  reply  to  this  letter 
complainant's  Washington  attorney  wrote, 
on  June  2d,  that  she  was  willing  to  waive  the 
restrictions,  owing  to  the  circumstances  un- 
der which  the  garage  had  been  partially 
erected.  If  the  consent  of  the  owner  of  the 
adjoining  property  could  be  obtained.  The 
proofs  do  not  show  what  efforts,  if  any,  were 
made  to  obtain  this  consent,  and  on  June  14th 
complainant's  attorney  wrote  defendant's  at- 
torney, ordering  the  garage  to  be  removed. 
No  further  steps  were  taken  by  defendant  to 
complete  or  to  remove  the  garage,  and  on 
July  10th  the  bill  was  filed. 

If  these  restrictions  or  stipulations  were  in 
effect  after  the  negotiations  for  their  remov- 
al between  complaiaant  and  Herbert  Booth 
In  1914,  so  that  they  affected  defendant's 
property  when  he  began  the  erection  of  the 
garage  thereon  in  March,  1916,  I  think  com- 
plainant is  estopped  by  her  conduct  and  lach- 
es in  having  them  enforced  against  defend- 
ant now.  She  saw  this  garage  being  erected 
as  early  as  April  10th;  she  made  no  objec- 
tion or  protest ;  she  allowed  defendant.  In  Ig- 
norance of  the  restrictions  and  of  her  atti- 
tude respecting  them,  to  spend  a  considerable 
sum  of  money  In  practically  finishing  the 
building;  and  she  allowed  him  to  continue 
these  expenditures,  without  protest,  until  her 
attorney  wrote  him  the  letter  of  May  24th, 
and  she  encouraged  him  to  proceed  with  the 
completion  of  the  building  and  expressed  her 
willingness  to  waive  the  restrictions  in  the 
letter  written  by  her  attorney  on  June  2d. 
Her    attitude   throughout,    apparently,    has 


been  that  it  was  optional  with  her  whether 
the  restrictions  should  be  considered  in  force 
or  not,  and  she  considered  it  her  privilege  to 
change  her  mind  on  the  subject  as  often  as 
she  desired;  and,  while  this  may  be  her  priv- 
ilege, she  must  take  the  consequences  of  exer- 
cising it  too  often  to  the  detriment  of  the  de- 
fendant. 

It  was  complainant's  duty,  if  she  Int^ided 
to  insist  upon  the  enforcement  of  the  re- 
strictions, to  have  acted  promptly  after  she 
learned  of  their  actual  violation  by  defend- 
ant in  April,  and  before  he  had  expended  any 
considerable  sum  of  money  on  the  building. 
This  she  did  not  do.  On  the  contrary,  she 
allowed  defendant  to  proceed  with  the  build- 
ing, and  expressed  her  willingness,  while  the 
garage  was  in  course  of  construction,  to 
waive  the  restrictions,  and  after  changing 
her  mind  about  the  matter  in  June,  she  de- 
layed the  filing  of  her  bill  until  July.  It  was 
said  in  Smith  v.  Spencer,  81  N.  J.  Eq.  389,  at 
page  393,  87  Atl.  158,  at  page  159,  that  such 
rights  cannot,  in  a  situation  like  this,  be  pro- 
tected by  mere  correspondence,  and  that  legal 
proceedings  must  be  taken  before  there  has 
been  a  serious  expenditure  of  money. 

It  is  one  oil  the  rules  of  courts  of  equity, 
quite  strictly  enforced  on  a  bill  for  a  man- 
datory injunction,  to  protect  restrictive  build- 
ing covenants,  that  the  application  must  be 
promptly  made.  Trout  v.  Lucas,  54  N.  J.  Bq. 
361,  35  AU.  163;  Sutcliffe  v.  Bisele,  62  N.  J. 
Bq.  222,  50  Atl.  69;  Zelman  v.  Kaufherr,  76 
N.  J.  Eq.  52,  73  AQ.  1048 ;  Sanford  v.  Keer, 
80  N.  J.  E]q.  240,  83  Atl.  225;   Goater  v.  My, 

80  N.  J.  Eq.  at  page  46,  82  Atl.  611;  Meaney 
V.  Stork,  80  N.  J.  Bq.  60,  83  Atl.  492,  affirmed 

81  N.  J.  Eq.  210,  86  Ati.  398;  Smith  v.  Spen- 
cer, supra.  Complainant's  delay,  under  the 
circumstances,  in  taking  legal  proceedings  to 
protect  her  rights,  constitute  such  laches  that 
I  deem  it  inequitable  to  grant  her  the  relief 
she  novr  seeks.  In  reaching  this  conclusion 
I  have  taken  into  consideration  all  that  has 
been  said  by  counsel  for  complainant  at  the 
hearing  and  on  the  brief  about  the  magnifi- 
cence and  value  of  complainant's  property 
and  the  cheapness  and  mean  appearance  of 
defendant's  garage,  but  the  comparative 
magnificence  or  insignificance  of  the  respec- 
tive properties  should  not,  under  the  situa- 
tion presented,  be  Influential  in  determining 
the  rights  of  the  parties. 

On  the  conclusion  of  the  hearing  the  sug- 
gestion was  made  by  me  that.  In  view  of  the 
slight  benefit  complainant  would  receive  If  it 
were  found  the  restrictions  were  in  effect 
and  should  be  enforced,  compared  with  the 
serious  loss  and  injury  defendant  would  sus- 
tain If  compelled  to  remove  the  garage,  pos- 
sibly complainant's  objections  to  the  garage 
would  be  removed  If  It  were  completed  as 
originally  planned.  Complainant  felt  that 
she  could  not  accept  this  suggestion,  and  that 
nothing  but  a  strict  enforcement  of  the  re- 
strictions by  the  removal  of  the  garage 
would  satisfy  her.    The  defendant  then  ex- 


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(N.J. 


preased  hla  wUllogness  to  follow  the  sugges- 
tion, and  counsel  for  defendant  has  attached 
to  bis  brief  a  proixwal,  which  Is  submitted 
without  prejudice,  to  the  effect: 

"That  upon  the  dismissal  of  complainant's 
bill,  he  is  willing,  at  his  own  expense,  to  put  on 
the  garage  a  shingle  roof  and  to  place  the  same 
in  place  of  the  present  tar-paper  roof  and  to 
give  the  structure  an  additional  coat  of  stucco- 
piaster  and  a  finishing  coat;  also  to  lower 
roof  of  the  building  five  feet  and  generally  to 
improve  and  embellish  the  appearance  of  the 
garage." 

If  these  changes  and  Improvements  are 
made  and  completed  by  defendant  by  July 
30th,  I  will  advise  a  decree  that  the  bill  be 
dismissed. 

(88  N.  J.  Kq.  2n) 

BOBT.  H.  INGEBSOLL  &  BBO.  v.  HAHNB 
&  CO.     (No.  43/381.) 


(Court  of  Chancery  of  New  Jersey. 
1917.) 


Ang.  14, 


1.  Courts  *=»97(1) — Prbcsdents— EbrFEcr. 

Decisions  of  the  Supreme  Court  of  the  Unit- 
ed States  as  to  the  validity  of  contracts,  which 
may  partially  destroy  competition,  are  not  bind- 
ing on  the  state  court,  though  entitled  to  great 
weight,  unless  the  contract  involves  an  artide  of 
interstate  commerce^ 

2.  Monopolies  «=>10— Stathtb— Validitt. 

Act  March  16,  1916  (P.  L.  p.  235),  declaring 
that  it  shall  t>e  unlawful  for  any  merchant,  firm, 
or  corporation  to  appropriate  for  his  or  their 
own  use  a  name,  brand,  trade-mark,  reputation, 
or  good  will  of  any  malter  in  whose  product  such 
merchant,  etc.,  deals,  or  to  discriminate  against 
the  same  by  depreciating  the  value  of  the  prod- 
ucts in  the  public  minds  by  misrepresentation 
or  price  inducement,  except  where  the  goods  do 
not  carry  any  notice  prohibiting  such  practice, 
is  not  in  violation  of  the  state  or  federal  con- 
stitutions, it  being  the  policy  of  the  law  to 
let  people  manage  their  own  business  in  tbeir 
own  way,  unless  the  ground  for  interference  is 
clear,  and  hence  a  notice  by  a  manufacturer  of 
watches  that  the  same  should  not  be  sold  with 
its  guaranty,  etc.,  for  leas  than  a  price  fixed,  is 
valid  and  binding  on  a  retailer,  the  watche3 
being  manufactured  in  large  quantities  and  sold 
in  vast  numbers  at  a  small  price  through  the 
advertising  of  the  manufacturer. 

3.  Pleading  «=»214(1)  —  Demukeii»— BirracT. 

On  demurrer  the  averments  of  a  bill  are 
to  be  treated  as  true. 

4.  COMMEBCE  <©=>0O(l)— INTEKSTATE  COillTEKCE 

— Intebference  With. 
A  New  York  manufacturer  of  cheap  watches 
sold  them  with  a  notice  forbidding  the  retailer 
to  dispose  of  them  for  leas  than  n  price  fixed  by 
the  factory.  A  jobber  in  New  York  disposed 
of  the  watches  to  a  New  Jersey  retailer,  who 
sold  the  watches  for  less  than  the  price  fixed 
by  the  manufacturer.  Under  Act  March  16, 
1916  (P.  I*  p.  235),  the  restrictive  notice  was 
valid.  Held,  that  law  which  protected  the  man- 
ufacturer was  not  invalid  as  casting  any  burden 
on  interstate  commerce  nor  prohibiting  com- 
mercial intercourse  between  people  of  the  vari- 
ous states,  or  placing  burdens  thereon. 

Bill  by  Bobt.  H.  Ingersoll  &  Bra  against 
nahne  &  Co.  On  motion  for  preliminary  In- 
junction and  to  strike  out  the  motion  to  dis- 
miss. Motion  to  dismiss  denied,  and  tempo- 
rary preliminary  injunction  granted. 


George  Tj.  Becord,  of  Jersey  City,  for  com- 
plainant. Stallman,  Hoover  &  Peclc,  M.  M. 
Stallman,  J.  F.  Hoover,  and  H.  Peck,  all  of 
Newark,  for  defendant 

LANE,  V.  C.  The  biU  discloses  the  foiloW' 
Ing  facts:  That  the  complainant  is  a  manu- 
facturer of  watches  sold  under  the  IngersoU 
name  In  conjunction  with  certain  trade- 
names such  as  "Yankee  Watch,"  the  "Dollar 
Watch,"  the  "Eclipse  Wnteh,"  and  "Junior 
Watch";  that  the  "Yankee  Watch"  is  adver- 
tised throughout  the  country  to  be  sold  to 
the  consumer  at  4^1.35;  that  the  only  way 
the  watches  can  be  sold  for  this  low  price  is 
to  manufacture  them  In  immense  quantities, 
and  the  only  way  to  produce  customers  upon 
a  big  scale  Is  by  extensive  advertising;  that 
the  name  of  Ingersoll  and  the  reputation  of 
the  firm  for  fair  dealing  and  reliable  prod- 
ucts is  nation  wide ;  and  that  It  is  absolutely 
necessary  as  a  part  of  the  advertising  and 
building  up  of  the  business  that  a  definite 
fixed  price  should  form  a  part  of  the  adver- 
tising for  each  of  the  products;  that  all  the 
Ingersoll  vratdies  are  sold  subject  to  a  notice, 
a  copy  of  which  Is  as  follows: 

"Notice. 

"The  use  of  our  name,  trade-mark,  guarantee, 
reputation,  good  will,  and  selling  helps  is  li- 
ceutied  to  tUu  dealer  for  the  sole  purpose  of 
selling  or  offering,  advertising  or  displaying  for 
Rale  this  watch,  provided  this  watch  is  not 
sold,  offered,  advertised,  or  displayed  for  sale 
with  or  as  any  donation,  discouut,  reltate,  pre- 
mium, or  bonus,  or  to  any  wholesale  or  retail 
dealer  at  rates  different  from  those  specified 
in  our  schedules,  or  at  any  other  retau  price 
than  $1.35,  without  first  removing  this  notice 
and  our  name,  trade-mark,  and  guarantee,  and 
returning  to  us  our  selling  helps  and  refrain- 
ing from  the  use  of  our  name,  trade-mark,  guai^ 
antee,  reputation,  good  wilt,  and  selling  helps, 
and  provided  the  dealer  shall,  upon  our  writ- 
ten request  (unless  he  shall  have  previously 
sold  it),  resell  to  us  this  watch,  if  then  merchan- 
table, at  the  rate  specified  in  our  schedules  for 
the  quantity  in  which  he  purchased,  or,  if  then 
damaged,  at  such  rate  as  shall  then  be  agreed 
upon. 

"Any  violation  of  any  of  the  above  conditions 
depreciates  our  name,  trade-mark,  reputation, 
and  good  will,  and  will  act  as  a  revocation  of 
this  license.  Any  use  of  our  name,  trade-mark, 
guarantee,  reputation,  good  will,  or  selling  helps 
aids  the  dealer  in  selling  this  watch  and  will 
act  as  an  acceptance  of  the  above  conditions. 
The  dealer  may  sell  or  otherwise  dispose  of  this 
watch  OS  he  pleases  after  first  removing  this 
notice  and  our  name,  trade-mark,  and  guar- 
antee, and  returning  to  us  our  selling  helps,  and 
refraining  from  the  use  of  our  name,  trade-mark, 
guarantee,  reputation,  good  will,  and  selling 
helps;  but  he  has  no  right  to  use  any  of  them 
in  violation  of  the  above  conditions  or  to  do 
anything  to  depreciate  their  value.  Any  dealer 
who  violates  any  of  the  above  conditions  will  be 
liable  to  suit  for  damages  and  an  injunction. 

"Upon  written  request  of  any  dealer  oi>serv- 
ing  the  above  conditions,  we  apreed  (1)  to  re- 
purchase from  him  this  watch,  if  then  merchan- 
table, at  the  rate  specified  in  our  schedules  for 
the  quantity  in  which  he  purchased,  or,  if  then 
damaged,  at  such  rate  as  shall  then  be  agreed 


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BOBT.  H.  INGERSOLti  A  BRO.  t.  HAHNE  A  OO. 


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upon;  or  (2)  to  leave  him  free,  after  first  re- 
moving tliis  notice  and  onr  name,  trade-mark, 
and  iruarantee,  to  sell  or  otherwise  dispose  of 
this  watch  without  regard  to  the  above  condi- 
tiona.  Bobt.  H.  IngersoH  &  Bro." 

That  the  defendant  Inserted  in  the  Newark 
NewB,  a  newspaper  published  in  Newark,  an 
advertiaement  in  the  following  form: 
$1.36    Ingersc^ 
Watches 
$1.00 
Nickel  only;  every  one  new 
with  the  nsoal  IngersoU 
guaranty. 

That  tbls  advertisement  appeared  on  April 
20,  1917,  and  that  the  defendant  sold  Inger- 
soH watches  for  the  sum  of  $1;  that  snch 
eales  were  made  in  the  regnlar  Ingers*^ 
boxes,  whicdi  carried  the  notice  heretofore 
mentioned;  that  It  advertised  and  declared 
its  Intention  to  again  resort  to  such  practice ; 
that  it  Is  only  possible  for  complainant  to 
mannfacure  and  sell  the  large  output  It  does 
by  widespread  advertisement,  and  In  such 
advertieements  the  fact  that  the  watches  are 
for  sale  at  the  low  and  fixed  price  of  $1.86 
and  the  word  "IngersoH"  are  essential  fea- 
tnres;  that  there  is  no  profit  in  the  sale  by 
retailers  of  the  watches  at  a  dollar ;  that  the 
direct  effect  of  the  acts  of  defendant  Is  that 
other  dealers  In  the  neighborhood  cannot 
market,  at  the  rate  of  $1.36,  the  watches 
whidi  are  manufactured  by  the  complainant; 
that  the  public  is  induced  to  believe  that  the 
watches  are  not  worth  $1.35  inasmuch  as 
they  are  being  sold  by  defendant  for  a  dol- 
lar; that  the  other  dealers  in  the  locality 
will  discontinue  the  sale  of  the  lAgersoU 
watdies;  that  the  business  of  the  complain- 
ant will  be  disorganized,  and  eventually 
mined;  that  the  defendant  has  no  Idea  of 
marketing  any  considerable  number  of 
watches  at  the  price  of  a  dollar,  bat  uses 
this  cut  rate  and  the  IngersoH  name  as  bait, 
at  irregular  intervals,  to  get  people  into  Its 
store,  depending  upon  those  attracted  by  the 
low  rate  of  the  IngersoH  watch  making  pur- 
chases of  other  goods  sold  by  defendant; 
that  for  its  own  purposes,  the  defendant 
makes  use  not  only  of  the  article  manufac- 
tured by  the  complainant,  but  also  of  its 
trade-name  and  reputation  and  guaranty  for 
its,  the  defendant's,  ulterior  purposes  to  the 
injury  of  the  complainant. 

The  complainant  relies  upon  the  provisions 
of  the  statute,  chapter  107  of  the  Laws  of 
1916,  which  provides  as  follows; 

"It  shaU  be  unlawful  for  any  merchant,  firm, 
or  corporation  to  appropriate  for  his  or  their 
own  use  a  name,  brand,  trade-mark,  reputation, 
or  good  will  of  any  maker  in  whose  product 
said  merchant,  firm,  or  corporation  deals,  or 
to  discriminate  against  the  same  by  dcprecintiug 
the  value  of  such  products  in  the  public  mind,  or 
by  misrepresentanon  as  to  value  or  quality,  or 
by  price  inducement,  or  by  unfair  discrimination 
between  buyers,  or  in  any  other  manner  whatso- 
ever, except  in  cases  where  said  goods  do  not 
carry  any  notice  prohibiting  such  practice,  and 
excepting  in  case  of  a  receiver's  sale,  or  a  sale 


by  a  concern  going  out  of  business." 


And  also  complainant  farther  relies  upon 
its  right  to  relief  at  common  law. 

There  Is  no  question  but  that  the  notice 
prescribed  by  the  statute  was  affixed  to  the 
goods  in  question.  The  defendant  moves  to 
strike  out  the  bill  upon  several  grounds  rais- 
ing several  questions,  only  two  of  which  I 
deem  it  necessary  to  consider. 

First  Whether  the  statute  Is  in  any  re- 
spect contrary  to  the  constitutional  provi- 
sions of  the  state  or  of  the  United  States. 

Second.  Whether  the  watches,  if  sold,  are 
the  subject  of  Interstate  commerce  to  such  an 
extent  as  that  the  statute  cannot  be  held  to 
apply. 

CI ,  2]  On  the  argument  there  was,  and  in 
coimsels'  brief  there  is,'  a  long  discussion  as 
to  whether  the  contract  against  price  cutting, 
evidenced  by  the  notice,  is  contrary  to  pubUc 
policy,  and  defendant  relies  upon  cases  in  the 
Supreme  Court  of  the  United  States  as  fol- 
lows: Dr.  Miles  Medical  Co.  v.  John  D.  Parks 
&  Sons  Co.,  220  U.  S.  873,  31  Sup.  Ct  376,  65 
li.  Ed.  502;  Bauer  v.  O'Donnell,  229  U.  S. 
1,  38  Sup.  Ct.  616.  57  U  Ed.  1041,  50  L.  B.  A. 
(N.  S.)  1185,  Ann.  Cas.  1916A,  150;  Straus  v. 
Victor  Talking  Mach.  Co.,  243  U.  S.  490,  37 
Sup.  Ct  412,  61  L.  Ed.  866  (decided  April  9, 
1017) ;  Motion  Picture  Patents  Co.  v.  Univer- 
sal Film  Co.,  243  U.  S.  502,  37  Sup.  Ct.  416,  61 
U  Ed.  871  (decided  April  9, 1917) ;  Bobbs-Mer- 
riH  Co.  v.  Straus,  210  U.  S.  839,  28  Sup.  Ct 
722,  62  I*  Ed.  1086. 

I  am  now  considering  the  public  poUcy  of 
the  state  of  New  Jersey  as  distinguished  from 
any  public  policy  of  the  United  States.  Un- 
less the  article  Is  the  subject  of  interstate 
commerce,  I  am  not  bound  by  the  opinions 
of  the  Supreme  Court  of  the  United  States. 
They  are  entitled  to  great  weight  and  careful 
consideration,  but  it  must  not  be  overlooked 
that  the  effect  of  the  case  of  Motion  Picture 
Patents  Co.  v.  Universal  Film  Co.,  243  o.  S. 
602,  37  Sup.  Ct  416,  61  U  Ed.  871  (decided 
April  9,  1917),  is  a  complete  reversal  of 
Henry  v.  Dick,  224  U.  S.  1,  32  Sup.  Ct  364. 
56  L.  Ed.  646,  Ann.  Cas.  1913D,  880.  To  con- 
sider In  detaU  the  reasoning  of  the  court  In 
the  very  numerous  cases  which  have  been  de- 
cided bearing  upon  this  question  would  un- 
duly extend  tbls  opinion.  Suffice  It  to  say 
that,  after  careful  consideration,  1  have  come 
to  the  conclusion  that,  upon  the  general  prop- 
osition, I  agree  with  the  dissenting  opinion 
of  Mr.  Justice  Holmes  in  Dr.  MUes  Medical 
Co.  V.  John  D.  Parks  &  Sons  Co.,  220  U.  S. 
at  page  411,  31  Sup.  Ct  at  page  386,  56  L. 
Ed.  502.    He  said: 

"I  think  that  at  least,  It  is  safe  to  say  that 
the  most  enlightened  judicial  policy  is  to  let 
people  manage  their  own  business  in  their  own 
way,  unless  the  ground  for  interference  is  very 
dear.  •  •  •  I  think  •  •  *  we  greatly  ex- 
aggerate the  value  and  importance  to  the  pub- 
lic of  comi)etition  in  the  production  or  distribu- 
tion of  an  article  (here  it  Is  only  distribution)  as 
fixing  a  fair  price.  •  •  •  There  may  be  nec- 
essaries that  sooner  or  later  must  be  dealt  with 
like  short  rations  in  a  shipwreck,  but  they  ore 

Tirtf  Tir    Afilpfi'  mcwlipinpA       •      •      ♦      Wp  rnilnt-  nik 


not  Dr.  Miles'  medicines. 


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101  ATIiANTIC  REPORTEA 


(N.J. 


■ame  Its  retail  price  to  be  reasonable,  for  it  is 
■o  alleged  and  the  case  is  here  on  demurrer ;  so 
I  see  nothing  to  warrant  mj  assuming  that  the 
public  will  not  be  served  best  by  the  company 
being  allowed  to  carry  out  its  plan.  I  cannot  be- 
lieve that  in  the  long  run  the  public  will  profit 
by  this  court  permitting  knaves  to  cut  reason- 
able prices  for  some  ulterior  purpose  of  their 
own  and  thus  to  impair,  if  not  to  destroy,  the 
production  and  sale  of  articles  which  it  is  as- 
sumed to  be  desirable  that  the  public  should  be 
able  to  get" 

I  agree  also  with  the  remarks  of  the  Su- 
preme Court  of  Washington  In  Fisher  Flour- 
ing Mills  Co.  V.  C.  A.  Swanson,  76  Wash.  649, 
137  Pac.  144,  51  I*  R.  A.  (N.  S.)  622.  Oliere 
the  court  says: 

"Finally,  it  seems  to  us  an  economic  fallacy  to 
assume  that  the  competition,  which  in  the  ab- 
sence of  monopoly  benefits  the  public,  is  com- 
petition between  rival  retailers.  The  true  com- 
petition is  between  rival  articles,  a  competition 
in  excellence,  which  can  never  be  maintained  if, 
through  the  perfidy  of  the  retailer  who  cuts  pric- 
es for  his  own  ulterior  purposes,  the  manu- 
facturer is  forced  to  compete  in  prices  with 
goods  of  his  own  production,  while  the  re- 
tailer recoups  his  losses  on  the  cut  price  by 
the  sale  of  other  articles,  at,  or  above,  their 
reasonable  price.  It  is  a  fallacy  to  assume  that 
the  price  cutter  pockets  the  loss.  The  public 
makes  it  up  oo  other  purchases.  The  manu- 
facturer alone  is  injured,  except  as  the  public 
is  also  injured  through  the  manufacturer's  ina- 
bility, in  the  face  of  cut  prices,  to  maintain 
the  excellence  of  his  product  Fixing  the  price 
on  all  brands  of  high  grade  flour  is  a  very  dif- 
ferent thing  from  fixing  the  price  on  one  brand 
of  high  grade  flour.  The  one  means  destruc- 
tion of  all  competition  and  of  all  incentive  to 
increased  excellence.  The  other  means  heighten- 
ed competition  and  intensified  incentive  to  in- 
creased excellence.  It  will  not  do  to  say  that 
the  manufacturer  has  no  interests  to  protect 
by  contract  in  the  goods  after  he  has  sold  them, 
"riiey  are  personally  identified  and  morally  guar- 
antMd  by  his  mark  and  his  advertisement." 

I  could  not  use  words  which  would  better 
flt  the  situation  in  the  case  at  Bar  than  these. 
Complainant  has  no  monopoly.  Its  goods  are 
not  manufactured  under  patents.  It  Is  con- 
stantly In  competition  with  manufacturers  of 
cheap  watches.  Not  only  Is  It  morally  bound 
as  a  result  of  its  advertising  to  guarantee  Its 
product,  but  It,  in  fact,  guarantees  It  In  writ- 
ing. The  defendant  makes  use  of  the  name, 
reputation,  and  guaranty  of  complainant  for 
its  own  ulterior  purpose  and  appropriates  to 
Itself  the  effect  of  the  extensive  advertising, 
upon  which  the  complainant  depends,  for  de- 
fendant's own  prodt,  in  violation  of  the  con- 
tract expressed  In  the  notice,  and  with  no  de- 
sire to  beneflt  the  public.  A  retailer  does  not 
sell  a  standard  article  at  a  loss  for  eleemos- 
ynary purposes. 

It  is  a  legislative  function  to  establish  pub- 
lic policy,  and  the  public  policy  of  this  state 
has  been,  I  ttilnk,  with  respect  to  the  matter 
In  question,  settled  by  the  statute  hereinbe- 
fore referred  to.  I  do  not  find  that  statute 
repugnant  to  the  Constitution  either  of  the 
United  States  or  of  this  state.    There  was  no 


obligation  upon  Hahne  &  Co.  to  purchase  the 
watches  in  question,  nor  was  there  any  obli- 
gation upon  the  complainant  to  manufocture 
and  sell  them.  If  Hahne  Sc  Co.  chose  to  pur- 
chase the  watches  with  the  notice  attached, 
of  which  I  must  presume  It  has  notice  at  tlie 
time  of  purchase,  there  Is  no  injury  done  the 
defendant  by  compelling  it  to  observe  the 
provisions  of  the  notice.  As  Mr.  Justice 
Holmes  said  In  the  I>r.  Miles  Medical  Co. 
Case: 

"I  think  that  at  least  it  is  safe  to  say  that 
the  most  enlightened  judicial  policy  is  to  let 
people  manage  their  own  business  in  their  own 
way,  unless  the  ground  for  interference  is  very 
dear." 

m  The  case  Is  before  me  as  if  upon  de- 
murrer, and  I  must  assume  that  the  state- 
ments of  the  bill  that  the  efFect  of  the  acta 
of  the  defendant  will  l>e  the  destruction  of 
complainant's  business  are  true.  Tbe  con- 
tract authorized  by  the  statute  Is  admitted ; 
Its  breach  is  admitted;  the  effect  of  Its  breach 
must  be  considered  as  above.  Can  It  lie  that 
there  Is  no  remedy?  I  do  not  find  that  any 
public  beneflt  will  be  subserved  by  refusing 
to  enforce  the  provisions  of  the  statute. 

[4]  The  remaining  question  to  determine 
is  whether  or  not  the  restriction  upon  the 
sale  of  the  watches  Is  aMda  an  interference 
with  interstate  commerce  as  to  prevent  its 
enforcement  The  watches  were  manufac- 
tured In  New  York;  were  sold  to  a  Jobber  in 
New  York  and  by  the  Jobber  sold  to  a  retailer 
in  New  Jersey  for  ultimate  distribution  to 
the  publla  The  statute  Is  designed  to  pro- 
mote good  morals  in  business.  It  is  an  exer- 
cise of  the  police  power  of  the  state.  That 
its  purpose  is  within  the  legislative  province, 
I  think,  admits  of  no  question.  It  does  not 
operate  to  interfere  with  the  trade  or  ex- 
change of  articles  between  this  and  other 
states,  but  rather  touches  upon  the  duties  of 
citizens  of  this  state  to  citizens  of  this  and 
other  states.  I  ttdnk  tliat  the  effect  of  ignor- 
ing the  restriction  would  tend  to  restrain  In- 
terstate commerce  by  reducing  Its  volume, 
and  that  the  effect  of  enforcement  of  the  re- 
striction will  tend  to  Increase  the  volume  of 
Interstate  commerce.  If  the  oleomargarine 
and  liquor  laws  can  be  maintained,  and  they 
have  been  (Waterbury  v.  Newton,  50  N.  J. 
Eq.  535,  14  Atl.  604),  I  think  there  Is  no  ob- 
jection to  an  act  of  the  nature  under  discus- 
sion. The  result  Is  that  the  motion  to  dis- 
miss the  bill  will  l>e  denied,  and  the  restraint 
continued  until  final  hearing. 

If  an  appeal  is  taken,  and  I  assume  there 
wIU  be,  I  desire  counsel  to  notify  me  at  once^ 
as  these  conclusions  Itave  been  prepared  Just 
t)efore  my  leaving  on  my  vacation,  and  I  de- 
sire to  prepare  more  formal  conclusions  for 
the  beneflt  of  the  Court  of  Errors  and  Ap- 
peals. The  result  I  have  reached  has  only 
been  arrived  at,  however,  after  careful  cod- 
sideration. 


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MA  YOB,  ETC.,  OF  JKRBEY  CITY  v.  BORST 


1033 


(90  N.  J.  lAW,  454) 

MAYOR,  ETC..  OF  JERSEY  OITT  v.  BORST. 


(Supreme  Court  of  New  Jersey. 
1917.) 


Sept.  14, 


fSvllabiu  hv  the  Court.) 

1.  Masteb  and  SEBVAI7T  «=>364— Wobkuen's 
Compensation  Act— Constbuction  of  Stat- 
ute—Injtjby  OB  Death. 

The  Supplement  to  the  Workmen's  Compen- 
sation Act  (Act  March  27,  1913  [P.  L.  1913,  p. 
230]),  {  1,  which  provides  "that  no  person  (i.  e. 
employe  of  the  state,  county  or  municipality) 
receiving  a  salary  greater  than  twelve  hundred 
dollars  per  year"  shall  be  compensated,  under 
section  2  of  the  original  act  (Act  April  4,  1911 
[P.  L.  1911,  p.  134J),  applies  only  to  employes 
of  the  class  therein  mentioned  who  were  Injured. 
It  docs  not  apply  to  cases  of  death,  where  de- 
pendents of  employes  are  affected. 

2.  Masteb  and  Sebvant  $=3348— Wobkken'b 
Compensation  Act— Constbuotion. 

The  workmen's  compensation  statute  is  a 
remedial  law  of  prime  import,  it  should  be  lib- 
erally and  broadly  construed. 

(Additional  8i/llabm  iy  Editorial  Staff.) 

8.  Wobds  and  Phbases — "Suffleuent." 

The  ordinary  meaning  of  the  word  "supple- 
ment" is  a  supplying  by  addition  of  what  is 
wanting. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  First  and  Second  Series,  Supple- 
ment.] 

CJertiorari  to  Court  of  Common  Pleas,  Hud- 
son County ;  Tennant,  Judge. 

Proceeding  under  the  Workmen's  Compen- 
sation Act,  by  Katherinc  Lovell  Borst,  as 
next  friend,  of  W.  Hudson  Lovell,  deceased 
employ^,  to  obtain  compensation,  opposed  by 
Mayor,  etc,  of  Jersey  City,  employer.  Com- 
pensation was  awarded,  and  the  employer 
brings  certiorari.  Judgment  awarding  com- 
pensation affirmed. 

Argued  June  term,  1917,  before  SWAYZE, 
BERGEN,  and  BLACK,  JJ. 

John  Bentley,  of  Jersey  City,  for  prosecu- 
tor.   R.  F.  Jones,  of  Jersey  City,  for  reepond- 

BLACK,  J.  This  Is  a  workmen's  comi)en8a- 
tlon  case.  The  certiorari  was  allowed  to  re- 
view the  determination  of  Judge  George  G. 
Tennant,  In  the  Hudson  county  common  pleas. 
An  award  of  $10  per  week  for  300  weeks  was 
made.  In  that  court,  from  May  3,  1914.  The 
facts  are  not  disputed.  The  i)oint  on  re- 
view and  for  decision  Is  a  pure  question  of 
law.  Involving  the  correct  construction  of  the 
supplement,  approved  March  27,  1913  (P.  L. 
1913,  p.  230),  to  the  Workmen's  Compensation 
Act,  which  was  approved  April  4,  1911  (P.  ti. 
1911,  p.  134).  The  first  section  of  that  act 
provides: 

Every  employ^  "who  shall  be  in  the  employ 
of  the  state,  county,  municipality  •  •  • 
shall  be  compensated  under  and  by  virtue  of 
section  two  to  which  this  act  is  a  supplement; 
provided,  however,  that  no  person  receiving  a 
salary  greater  than  twelve  hundred  dollars  per 
year,  nor  any  person  holding  an  elective  office 
aball  be  entitled  to  compensation." 


Section  2: 

"When  any  payment  shall  be  due  under  the 
provisions  of  this  supplement  or  the  act  to  which 
It  is  a  supplement,  the  name  of  the  injured  em- 
pIoy6,  or  in  case  of  his  death,  the  names  of 
the  persons  to  whom  payment  is  to  be  made  as 
his  dependents,  shall  be  carried  upon  the  pay 
roll,"  etc. 

It  Is  conceded  that  the  respondent  would 
be  entitled  to  compensation  were  It  not  for 
the  proviso  In  the  above  supplement.  The 
facts  In  brief  are:  W.  Hudson  Lovell,  the  de- 
ceased, was  an  employ^  of  the  mayor  and  al- 
dermen of  Jersey  City  as  an  assistant  fire 
chief  or  assistant  engineer.  In  the  lire  depart- 
ment. On  May  3,  1914,  while  respond- 
ing to  a  fire  call  or  alarm  he  was  killed  in  a 
collision.  He  was  receiving  pay  at  the  rate 
of  $2,850  per  year.  He  left  him  surviving,  an 
actual  dependent,  Helen  Katharine  Borst,  a 
granddaughter.  We  think  the  judgment  of 
the  court  of  common  pleas  is  founded  upon 
the  correct  construction  of  the  statute,  and 
therefore  must  be  affirmed.  The  reasoning 
that  carries  the  mind  forward  to  this  con- 
clusion may  be  briefly,  indicated  as  follows:' 

[1,3]  The  original  Workmen's  Compensa- 
tion Act  (P.  L.  1911,  p.  134)  appUes  to  mu- 
nicipal corporations  and  their  employes. 
AUen  V.  City  of  MUlvUle,  87  N.  J.  Law,  366, 
95  Atl.  130,  affirmed  88  N.  J.  Law,  693,  96 
Atl.  1101.  Paragraph  19  of  the  original  act 
(P.  Ij.  1911,  p.  142)  provides  for  the  payment 
of  compensation  In  cases  of  death.  It  is  sig- 
nificant, if  not  important,  that  the  title  of 
the  supplement,  supra  (P.  L.  1913,  p.  230),  is 
identical  in  terms  with  the  title  of  the  origi- 
nal act,  except  "a  further  supplement  to  an 
act  entitled."  Ab  stated,  it  Is  a  supplement 
to  the  original  act  Now  the  ordinary  mean- 
ing of  the  word  "supplement"  doubtless  Is  a 
supplying  by  addition  of  what  is  wanting. 
Rahway  Savings  Institution  v.  Mayor,  etc,  of 
Rahway,  53  N.  J.  Law,  Bl,  20  Atl.  756.  It  is 
a  fair  argument  to  say  that  the  supplement 
applies  only  to  employ^  of  the  class  there- 
in mentioned,  who  are  injured.  It  does  not 
apply  to  cases  of  death  where  dependents  of 
employ^  are  affected.  This  would  seem  to 
be  clear  in  view  of  section  2,  supra,  which 
provides  that  the  name  of  the  Injured  em- 
ploy£,  "in  case  of  his  dtath,  the  names  of  the 
persons  to  whom  payment  is  to  be  made  aa 
his  dependents,  shall  be  carried  upon  the  pay 
rolL"  This  construction  is  not  inconsistent, 
but  in  harmony,  with  section  1,  p.  230,  of  the 
1913  supplement,  supra.  A  reason  for  this,  if 
it  is  the  true  interpretation  of  the  legislative 
will,  may,  perhaps,  be  found  in  the  fact  that 
an  Injured  employ^  of  a  municipal  corporation 
usually  receives  his  full  wages  from  the  mu- 
nicipality, while  incapacitated  from  personal 
Injuries.  It  limits  the  application  of  section 
11  of  the  original  act  of  1911  (page  134),  so 
that  no  Injured  employ^  himself,  who  receives 
"a  salary  greater  than  twelve  hundred  dol- 
lars per  year,"  should  be  entitled  to  secure 
compensation  for  personal  injuries. 


(tsaVor  otlter  cssm  sea  same  topio  and  KBT-NTJMBBB  ta  aU  Key-Numbered  DlgMU  aad  ladeiM 


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{N.J. 


[2]  In  other  words,  section  1  of  the  supple- 
ment, Bupra  (P.  L.  1813,  p.  230),  deals  with  a 
designated  class  of  injured  employ^,  but 
leaves  untouched  the  provisions  of  the  act  re- 
lating to  dependents,  when  death  ensues. 
What  was  so  aptly  said  by  Judge  Vreden- 
burgb,  speaking  for  the  Court  of  Errors  and 
Appeals,  in  the  case  of  Beagle  v.  Lehigh,  etc.. 
Coal  Co.,  82  N.  J.  Law,  707,  710,  82  Atl.  890, 
applies  to  the  construction  of  the  workmen's 
compensation  statute.  This  law,  it  will  be 
noted  by  a  reference  to  its  terms,  is  a  reme- 
dial law  of  prime  import,  and  should  be  liber- 
ally construed.  It  should  be  broadly  con- 
strued to  a  like  effect,  as  the  case  in  the  Su- 
preme Court  of  Errors  of  Connecticut  Pow- 
ers ▼.  Hotel  Bond  Co.,  89  Conn.  143,  93  AtL 
245. 

The  Judgment  of  the  Hudson  county  court 
of  common  pleas  is  afiSrmed,  with  costs. 


(90  N.  J.  law,  tut) 
FLYNN  v.  NEW  YORK,  S.  &  W.  R.  CO. 

(Supreme  Court  of  New  Jersey.    Sept  14, 1917.) 

(Byllabu*  ^v  ike  C<mrt.) 

1.  Master  and  Sbbvant  9=>365— Workmen's 
Compensation  Act  —  State  Court  —  Juris- 
diction. 

A  crossing  flagman  employed  by  a  railroad 
company  engaged  in  interstate  and  intrastate 
commerce  wag  struck  and  killed  by  the  engine  of 
a  train  engaged  in  interstate  commerce.  BtM, 
that  the  court  of  common  pleas  of  New  Jersey  is 
ousted  of  jurisdiction  to  award  compensation  un- 
der the  New  Jersey  Workmen's  Compensation 
Act  (Act  April  4,  1911  [P.  L.  p.  134]),  the  fed- 
eral Employers'  Liability  Act  (Act  Cong.  April 
22,  1908,  c.  149.  85  Stat  65  [U.  S.  Comp.  St 
1916,  IS  8657-8665])  U  exclusive. 

2.  Hasikr  and  Sebvani  €==>412— Wobkicen's 
Compensation  Act  —  Conclusiveness  ov 
Finding. 

Althoogh  the  findings  of  the  court  of  common 
pleas,  as  to  the  facts  in  workmen's  compoisation 
cases  are  conclusive  on  appeal,  nevertheless,  the 
law  arising  upon  undisputed  facts  is  a  question 
of  law  ftur  the  court  reviewing  the  decision  to 
decide. 

Certiorari  to  Court  of  Common  Pleas,  Pas- 
saic County. 

Proceeding  under  Workmen's  Ojmpensa- 
tion'Act  by  Mary  Flynn,  widow  of  James 
Flynn,  deceased,  employ^,  for  compensation 
for  his  death;  opposed  by  the  New  York, 
Susquehanna  &  Western  Railroad  Company, 
employer.  Compensation  was  awarded,  and 
the  employer  brings  certiorari.  Judgment 
awarding  compensation  reversed. 

Argued  JUhe  term,  1917,  before  SWAYZE;, 
BERGEN,  and  BLACK.  JJ. 

Collins  &  Corbin,  of  Jersey  Oty,  for  prose- 
cutor. Edward  F.  Merrey,  of  Paterson,  for 
d^endant. 

BLACK,  J.  The  writ  of  certiorari  in  this 
case  Is  to  review  a  determination  of  the 
court  of  coinmoa  pleas  of  Passaic  county,  in 
a  proceedlns  under  the  New  Jersey  Work- 


men's Compensation  Act,  brought  by  Mary 
Flynn,  the  widow  of  James  Flynn,  deceased. 

The  trial  court  determined  that  the  peti- 
tioner is  entitled  to  $5  per  week  for  a  period 
of  3(X)  weeks,  beginning  on  the  30th  day  of 
April,  191&  The  trial  court  further  found : 
The  prosecutor  is  a  common  carrier,  and  is 
engaged  both  in  interstate  and  intrastate 
commerce;  that  James  Flynn  was  not  em- 
ployed by  the  prosecutor  In  interstate  com- 
merce, and  thereupon  the  federal  ESmployets' 
Liability  Act  does  not  apply.  It  is  to  review 
this  latter  finding  that  the  controversy  Is 
brought  under  review  in  this  court 

[1]  The  pertinent  facts  are:  The  deceas- 
ed, James  Flynn,  on  March  23, 1916,  was  em- 
ployed by  the  prosecutor,  as  a  crossing  flag- 
man, at  the  Lyon  street  crossing  In  the  city 
of  Paterson.  While  thus  engaged  in  the  per- 
formance of  his  duties  as  a  flagman,  with  re- 
spect to  a  passing  train,  which  was  carrying 
passengers  and  baggage  from  points  in  the 
state  of  New  York  to  various  points  in  the 
state  of  New  Jersey,  he  was  struck  and  killed 
by  the  engine  of  the  train  in  the  course  of 
his  employment  Fl}-nu  crossed  over  the  east- 
bound  tracks  of  the  prosecutor,  on  the  ap- 
proaxifa  of  an  east-bound  train,  to  flag  the 
crossing,  and,  while  so  engaged,  was  stand- 
ing near  the  west-bound  tracks,  and  was 
struck  and  killed  by  the  outer  edge  of  the 
breast  irfece  of  an  engine  drawing  a  train 
on  the  west-bound  tracks,  which  was  an  in- 
terstate train.  The  question,  therefore,  for 
solution,  and  the  only  one,  is,  Was  the  de- 
ceased at  the  time  of  bis  death  engaged  in 
an  interstate  act?  If  so,  it  is  firmly  settled 
by  the  recent  decisions  of  our  Court  of  Er- 
rors and  Appeals,  in  the  case  of  Rounsavllle 
V.  Central  R.  R.  Co.,  101  Atl.  182,  and  by  the 
United  States  Supreme  Court  in  the  case  of 
Erie  R.  R.  Co.  v.  Winfield,  decided  May  21, 
1917,  244  U.  S.  170,  87  Sup.  Ct.  556,  61  U 
Ed.  1057,  reversing  Id.,  88  N.  J.  Law,  619,  96 
Atl.  394,  that  the  federal  Employers'  Liabil- 
ity Act  of  1908  is  exclusive  of  the  state  act, 
and  ousts  the  courts  of  common  pleas  of  the 
state  of  Jurisdiction,  under  the  New  Jersey 
Workmen's  Compensation  Act 

The  courts,  thus  far,  apparently  have  been 
unable  to  formulate  .any  rule,  sufficiently 
exact,  comprehensive,  and  exclusive  by  which 
to  test  the  quality  of  an  act  or  series  of  acts 
as  falling  within,  or  without,  the  domain  of 
interstate  business.  Upon  reflection,  it  would 
seem'  almost  impossible  to  formulate  a  rule 
applicable  to  the  almost  endless  variety  of 
drcumstanoes  and  facts  springing  out  of  the 
Intricacies  of  everyday  modem  life  that  will 
be  of  much  practical  use  or  aid.  THie  ap- 
plication of  the  principle  must  be  made  to 
particular  facts,  as  they  arise;  jind  by  a 
process  of  exclusion  and  inclusion  a  rule  may 
perhaps  be  formulated  in  time  from  the  deci- 
sion of  such  cases.  There  is  already  a  long 
line  of  cases  In  the  federal  and  state  courts 


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PliATT  T.  JOHNSON 


1035 


showing  tbe  application  of  the  principle  to 
the  fticts  under  discussion.  It  would  serve 
no  useful  purpose  to  collate  or  cite  these  de- 
cisions, nie  decisions  in  the  United  States 
Supreme  Court,  the  ultimate  authority  on 
the  point,  are  quite  uniform,  when  stating 
the  principle,  to  use  such  language  as  this. 
The  employ^  must  be  engaged  In  Interstate 
business,  or  in  an  act  which  is  so  directly 
and  immediately  connected  with  such  busi- 
ness, as  substantially  to  form  a  part  or  a 
necessary  incident  thereto  (New  Xork,  etc., 
K.  R.  C5o.  V.  Our,  238  tJ.  8.  260,  35  Sup.  Ot. 
780,  5»  li  Ed.  1298;  or  In  work  so  closely 
related  to  it,  1.  e.,  interstate  transportation, 
as  to  be  practically  a  pert  of  it  (Shanks  t. 
Delaware,  etc.,  R.  R.  Co.,  239  U.  S.  666,  36 
Sup.  Ct  188.  60  L.  Bd.  436,  L.  R.  A.  1916C, 
797).  So,  Louisville,  etc.,  R.  R.  Co.  v.  Parker, 
242  U.  S.  13,  37  Sup.  (X  4,  61  K  Ed.  119. 

We  have  been  unable  to  find  any  case  In 
the  federal  courts  where  this  precise  ques- 
tion has  been  passed  upon.  We  are  referred 
to  two  cases,  however,  in  the  California  Su- 
preme Court,  both  of  which  held  that  cross- 
ing flagman  engaged  in  flagging  on  a  rail- 
road where  interstate  trains  were  being  op- 
erated were  engaged  In  interstate  commerce. 
Southern  Pacific  Co.  t.  Industrial  Accident 

Commis^on,   174   CaL  ,   161   Pac.   1139; 

Southern  Padflc  Co.  v.  Industrial  Accident 
Commission,  174  CaL  — ,  161  Pac.  1142. 
These  cases,  of  course,  are  not  binding  prec- 
edents upon  this  court,  but  we  think  these 
decisions  are  in  harmony  and  accord  with 
the  spirit  and  principle  of  the  cases,  decided 
by  the  Supreme  Court  of  the  United  States. 

[2]  Notwithstanding  this  situation,  it  is 
now  urged  by  the  defendant  that  the  statute 
makes  tbe  judgment  of  the  court  of  common 
pleas  conclusive  and  binding  as  to  all  ques- 
tions of  fact.  P.  I*  1911,  p.  134,  1 18;  Nevlch 
V.  Delaware,  etc.,  R.  R.  Co.,  100  Atl.  234; 
Hulley  V.  Moosbrugger,  88  N.  J.  Law,  161, 
95  Att  1007,  L.  R.  A.  1916C,  1203.  The  Judg- 
ment of  the  common  pleas  must  be  upheld 
If  there  is  any  evidence  in  the  case  to  sup- 
port it  This,  of  course,  must  be  accepted 
as  the  law  of  the  state,  but  in  the  case  of 
HuUey  V.  Moosbrugger,  88  N.  J.  Law,  161, 
95  Atl.  1007,  L.  R.  A.  1016C,  12GB,  it  wjas 
said  by  Chancellor  Walker,  speaking  for 
the  Court  of  Errors  and  Appeals : 

"Although  the  findings  of  the  court  of  common 
plena  as  to  the  facts  of  the  case  are  conclusive, 
according  to  section  18  of  the  act,  and  the  de- 
dsion  of  the  Supreme  Court,  •  •  •  and 
therefore  are  conclusive  here,  yet,  nevertheless, 
the  law  arising  upon  ascertained  facts  is  a  ques- 
tion for  the  court  reviewing  the  decision." 

The  finding  of  the  trial  Judge  that  the  de- 
ceased, James  Flynn,  was  not  employed  by 
the  prosecutor  in  Interstate  commerce  Is  not 
a  finding  of  fact;  It  is  a  statement  of  law. 
The  facts  in  the  case  are  entirely  undisput- 
ed; it  is  a  irare  question  of  law  arising  upon 
facts  that  are  not  disputed.    We  thluk  James 


Flynn  at  the  time  of  his  death  was  engaged 
In  an  act,  to  use  the  words  of  the  Supreme 
Court  of  the  United  States,  directly  and  im- 
mediately connected  with  interstate  bostness 
as  substantially  to  form  a  part  or  a  neces- 
sary incident  thereto.  Under  the  decision  of 
the  Supreme  Court  of  the  United  States  In 
the  Wlnfleld  Case,  supra,  that  fac*  ousted 
the  common  pleas  court  of  Passaic  county  of 
Jurisdiction. 

The  Judgment,  therefore,  of  the  Passaic 
court  of  common  pleas  is  reversed,  with 
costs. 

(87  N.  J.  Bk|.  403) 
PLATT  V,  JOHNSON  et  aL    (No.  43876.) 

(Court  of  CJhancery  of  New  Jersey.     Aug.  14, 
1917.) 

(Byllabut  ly  the  Court.) 

1.  Wills  <S=542(2)  —  Consteuctios  — Abso- 
LtTTE  Devise— KEMAiNDEB. 

Testator  devised  the  remainder  of  his  real 
estate  to  his  wife  for  life,  or  so  long  as  she 
should  remain  big  widow,  and,  after  her  death 
or  remarriage,  to  his  two  daughters,  to  be  equal- 
ly divided  between  them,  share  and  share  alike, 
and,  in  case  of  the  decease  of  either  daaghter, 
then  to  the  survivor  absolutely,  unless  the  de- 
ceased daughter  should  leave  lawful  issue,  then 
that  such  issue  should  take  the  share  which 
would  have  been  received  by  such  deceased 
daughter,  had  she  been  living;  in  case  both 
daughters  should  die,  each  leaving  lawful  issue, 
then  the  share  of  each  daughter  to  be  divided 
equally  among  such  issue  surviving,  respec- 
tively ;  and  In  case  of  the  death  of  both  daugh- 
ters without  leaving  lawful  issue,  then  the  estate 
to  be  divided  equally  among  testator's  legal  rep- 
resentatives (meaning,  doubtless,  heirs),  share 
and  share  alike. 

These  events  happened:  Testator's  wife  died 
in  bis  lifetime;  one  daughter,  having  married, 
also  died  in  her  father's  lifetime  and  without 
issue;  the  father  then  died,  leaving  his  other 
d«v«:hter  him   surviving. 

Jield,  upon  tbe  father's  death  the  absolute  de- 
vise to  the  surviving  daughter  took  effect,  and 
the  remainder  to  bis  heirs  generally  was-  de- 
feated. 

2.  Judgment  €=»728  —  Res  Jttdicata  —  CoL- 

LATERAL  MaTTEBS. 

The  Court  of  Chancery  has  power  to  decide 
a  question  beyond  its  jurisdiction,  when  it  arises 
inodentally  and  collaterally  in  a  suit  within  its 
jurisdiction,  which  decision,  however,  has  no 
force  as  res  judicata  or  by  way  of  estoppel. 
8.  Pabtition  «=>17(2)  —  Legal  Title  to 
Lan  ds— Dismissal. 

If  the  legal  title  to  lands  is  in  issue  in  a 
suit  for  partition,  the  Court  of  Chancery  will 
either  dismiss  the  bill  or  retain  it  to  allow  tbe 
title  to  be  settled  in  an  action  at  law ;  and  the 
practice  is  quite  universal  to  retain  it. 

Bill  for  partition  of  land  between  Ellen 
Piatt  and  George  M.  Johnson  and  others.  On 
objection  to  master's  report.  Objections 
overruled,  and  bill  dismissed. 

William  M.  Jamieson,  of  Trenton,  for  com- 
plainant 

WALKER,  Ch.  The  bill  In  this  case  was 
filed  for  the  partition  of  land  in  the  city  of 
Trenton,  of  which  the  late  George  M.  Mitch- 
ell died  seised.    The  complainant,  Mrs.  Piatt 


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1036 


101  ATLANTIC  REPORTER 


(N.J. 


Is  his  survlrlng  sister.  Tbe  defendants  are 
tbe  cblldren  and  grandchildren  of  a  deceased 
brother  and  sister.  An  Interlocutory  decree 
was  entered  In  which  the  bill  was  taken  as 
confessed  against  the  defendants,  and  It  was 
referred  to  William  J.  Backes,  Esq.,  special 
master,  to  ascertain  and  report  on  the  right, 
title,  and  interest  of  the  respective  parties 
in  the  premises,  etc.,  with  direction  that  the 
report  be  filed  on  a  certain  day  therein  men- 
tioned, which  was  done. 

The  master  reported  that  he  was  of  opin- 
ion that  Mrs.  Overton,  one  of  Jlr.  Mitchell's 
daughters,  upon  the  death  of  her  father,  took 
an  indefeasible  estate  in  fee  simple,  under 
his  will,  in  the  lands  sought  to  be  partitioned, 
and  that  the  parties  to  the  suit  had  no  right, 
title,  or  interest  in  the  land.  In  this  opinion  I 
concur.  The  master  was  guided  by  the  deci- 
sion of  the  Court  of  Errors  and  Appeals  in 
Patterson  v.  Madden,  54  N.  3.  Eq.  714,  36 
Atl.  273.  This  case  applies,  as  does  also  the 
yery  recent  one  of  Michael  v.  Mlncbln,  101 
AtL  283,  in  the  same  court. 

Counsel  for  complainant  made  oral  objec- 
tion to  the  report  at  tbe  time  It  was  filed,  In 
pursuance  of  rule  227  of  this  court,  and 
claimed  that  the  master's  conclusion  should 
be  overruled  and  tbe  matter  sent  back  to  the 
master  to  report  upon  the  other  questions 
referred,  because,  as  he  contended,  the  devise 
to  Mrs.  Overton  was  defeated  by  her  deatb 
without  issue,  and  that  the  last  contingent 
devise  in  the  testator's  will  to  bis  legal  rep- 
resentatives, meaning  heirs,  took  effect.  An 
examination  of  the  testament  will,  I  think, 
quite  conclusively  show  that  the  master  is 
right 

[1]  Tbe  testator  made  bis  will  la  1880,  and 
it  was  proved  In  1907,  shortly  after  bis 
death.  In  it  he  devises  and  bequeaths  the 
residue  and  remainder  of  bis  real  and  per- 
sonal property  to  his  wife  for  life  or  so 
long  as  she  should  remain  his  widow,  and, 
after  her  death  or  remarriage,  to  his  two 
daughters,  Josephine  and  Harriet,  to  be 
equally  divided  l)etween  them,  share  and 
share  alike.  And  in  case  of  the  decease  of 
either  daughter,  then  to  the  survivor  abso- 
lutely, unless  the  deceased  daughter  should 
leave  lawful  Issue,  then  that  such  issue  take 
the  share  which  would  have  been  received  by 
such  deceased  daughter  bad  she  been  living. 
In  case  both  daughters  should  die,  each  leav- 
ing lawful  issue,  then  the  share  of  each 
daughter  to  be  divided  equally  among  such 
issue  surviving,  respectively,  and  in  case  of 
the  death  of  both  daughters  without  leaving 
lawful  issue,  then  the  estate  to  be  divided 
equally  among  testator's  legal  representa- 
tives, share  and  share  alike. 

These  events  happened:  The  testator's  wife 
died  in  his  lifetime.  His  daughter  Harriet, 
having  married  a  man  named  Outhouse,  also 
died  in  her  father's  lifetime  and  without 
issue.  The  father  then  died  leaving  his 
daughter  Josephine  him  surviving.    She  was 


then  married  to  Frederick  0.  Overton,  and 
the  Overtons,  on  June  14,  1913,  conveyed  the 
premises  to  an  intermediary  who  reconveyed 
them  to  Mr.  and  Mrs.  Overton,  thus  creating 
an  estate  by  entirety  in  them,  if  the  title 
were  good,  and  I  think  it  was.  Mrs.  Over- 
ton died  March  2,  1917,  leaving  her  husband 
surviving,  whereupon  he  became  possessed 
of  the  entire  estate  in  the  premises. 

It  is  to  be  observed  that  on  the  will  taking 
effect  In  1907,  upon  the  death  of  the  testa- 
tor, tbe  only  devisee  in  esse  qualified  to  take 
under  the  will  was  Mrs.  Overton,  and  tbe  lan- 
guage of  the  devise,  which  devolved  the  prop- 
erty upon  her  is: 

"And  in  case  of  the  decease  of  either  one  of 
my  said  daughters,  then  I  give,  bequeath  and 
devise  the  same  to  the  survivor  absolutely." 

It  is  apparent  that  if  there  was  no  subse- 
quent provision  in  the  will,  the  surviving 
daughter,  Josephine  Overton,  would  take  the 
estate  in  fee  simple  absolute.  Let  us  see 
what  subsequent  contingency  might  make 
some  other  vesting  of  the  whole  or  any  part 
of  the  premises. 

It  is  to  be  borne  in  mind  that  the  devise 
of  the  entire  premises  was  to  the  surviv- 
ing daughter  absolutely,  unless  the  deceased 
daughter  left  Issue,  in  which  event  the  issue 
would  take  her  share.  The  daughter  Harriet 
was  dead  without  issue,  an'd,  consequently, 
the  whole  estate  vested  in  her  sister  Jose- 
phine. Now,  it  was  further  provided  that 
in  case  both  daughters  should  die,  eadi 
leaving  issue,  the  share  of  each  was  to  be 
equally  divided  among  her  Issue.  Because  of 
the  death  of  the  daughter  Harriet  in  her  fa- 
ther's lifetime  without  issue,  this  oontlo- 
gency  of  one  sister  surviving  and  one  dying 
leaving  issue  could  never  happen  on  or  after 
the  taking  effect  of  the  will.  Next  and  last, 
in  case  of  the  decease  of  both  daughters  with- 
out issue,  then  the  residuary  estate  was  to  be 
equally  divided  among  testator's  legal  rep- 
resentatives, meaning,  concededly,  lids  heirs 
and  next  of  kin — heirs  in  this  case,  as  we 
are  here  only  dealing  with  real  estate.  Com- 
plainant claims  that  this  limitation  over  to 
the  heirs  of  the  testator  has  not  been,  defeat- 
ed, and  that  by  the  death  of  his  wife  and  of 
his  two  daughters,  no  issue  being  left  by  ei- 
ther of  the  latter,  the  limitation  over  to  the 
heirs  of  the  testator  Is  good  and  has  taken 
effect 

I  cannot  be  per8aad<$d  that  the  provision  of 
tlie  will  that  in  case  of  the  decease  of  both 
daughters  without  issue  the  estate  of  Mrs. 
Overton  who  took  "absolutely"  on  her  fa- 
ther's death  was  cut  down  to  an  estate  for 
her  life  and  limited  over  to  her  father's  heirs 
as  mentioned.  It  must  be  apparent  that  if, 
wh0i  the  will  took  effect  both  daughters 
were  living  both  would  have  taken,  and  if  the 
deceased  daughter  Harriet  had  issue  surviv- 
ing they  would  have  taken  her  share,  that 
is,  one  half,  while  the  other  half  woufd  have 
gone  to  the  daughter  Josephine,  in  fee  simple, 
and  that  in  either  case  the  limitation  over 


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would  have  been  defeated.  It  Is  unreason- 
able to  belieye  that  the  testator  intended  to 
glre  his  surviving  daughter  a  fee  in  one-half 
of  his  residuary  estate  if  her  previously  de- 
ceased sister  had  left  issue,  but  if  she  died 
without  issue,  then  the  whole  estate  for  life 
only,  with  remainder  over  to  his  heirs  gener- 
ally. I  think  it  dear  that  the  one  half  whldi 
the  surviving  sister  would  take  in  f^  if  the 
other  'died  leaving  issue  was  to  be  increased 
to  a  fee  In  the  other  half  also  if  her  deceased 
sister  left  no  issue,  thus  giving  the  whole  e»- 
tate  to  the  surviving  daughter  of  the  testa- 
tor. That  is  the  natural  disposition  that  a 
man  would  make  of  his  property.  In  my 
oidnion  this  limitation  over  to  the  testator's 
heirs  generally  stands,  not  in  opposition  to 
the  devises  to  the  daughters,  but  to  the  death 
of  both  of  them  prior  to  the  death  or  remar- 
riage of  their  mother,  the  testator's  wifa 
This  contingency  did  not  happen  as  one 
daughter  ontlived  her  mother  and  sister, 
both  of  whom  were  deceaaeid  at  the  death  of 
the  testator  and  the  consequent  taking  ef- 
fect of  his  wlU.  Upon  the  father's  death, 
therefore,  the  absolute  devise  to  the  surviv- 
ing daughter  took  effect,  and  the  remainder 
to  his  heirs  generally  was  defeated. 

[2]  In  my  opinion  Mr.  Overton,  the  sur- 
viving husband  of  testator's  deceased  daugh- 
ter Josephine,  is  now  the  owner  of  the  prem- 
ises sought  to  be  partitioned,  in  right  of 
surviving  his  wife,  because  the  limitation 
over  to  the  testator's  heirs  has  been  defeated. 
He  la  not  made  a  party  to  the  bill.  If  the 
decision  were  to  be  against  his  interest,  he 
should  be  made  a  party,  although,  of  course, 
a  decree  without  his  being  before  the  court 
would  in  no  wise  bind  him.  By  chancery  rule 
6  any  person  may  be  made  a  defendant  who 
is  alleged  to  have  a  claim  or  interest  in  the 
controversy;  and  by  rule  12  the  court,  at 
any  stage  of  the  proceedings,  either  upon  or 
without  application,  may  order  any  party  im- 
properly omitted  to  be  addeid;  but,  by  rule 
1.3,  the  court  may  determine  the  controvert 
as  between  the  parties  before  it  where  It  can 
do  so  without  prejudice  to  the  rights  of  oth- 
ers. And  the  court  can  and  does  determine 
this  matter  without  in  any  wise  prejudicing 
the  rights  of  Mr.  Overton.  In  form  the  deci- 
sion is  beneficial  to  him,  but  in  fact  it  doubt- 
less does  not  benefit  him,  because  made  in- 
cidentally in  a  cause  to  which  he  is  not  a  par- 
ty ;  and  this  quite  aside  from  any  question 
of  the  court's  power  to  decide  as  to  the  legal 
title  to  the  premises,  as  this  court  has  power 
to  decide  a  question  beyond  its  jurisdiction 
when  It  arises  incidentally  and  collaterally 
in  a  suit  within  its  jurisdiction,  which  deci- 
sion, however,  has  no  force  res  judicata  or  by 
way  of  estoppel.  See  MuUaney  v.  Mullaney, 
65  N.  J.  Eq.  384,  3S7,  54,  Atl.  1066. 

Counsel  asserts  that  the  reason  be  did  not 
recite  in  the  bill  the  conveyances  from  Mrs. 
Overton  and  her  husband  to  the  intermediary 


and  from  him'  to  them,  and  why  he  did  not 
make  Mr.  Overton  a  party,  was  because  that 
would  raise  an  issue  of  title  not  triable  In 
this  court.  If  this  be  so  It  does  not  afford  a 
conclnsive  reason  for  the  course  taken.  He 
was  obliged  to  set  out  a  title  In  the  parties, 
complainant  and  defendants,  or  the  bill 
would  not  lie.  The  allegations  concerning 
title  should  have  been  entirely  ingenuous  and 
disclosed  all.  All  was  disclosed  to  the  mas- 
ter by  the  proofs  submitted  to  him  on  be- 
half  of  the  complainant.  And  it  is  upon 
proof  aliunde  the  bill  that  the  master  finds 
that  the  parties  have  no  interest  in  the  prem- 
ises, the  title  to  which  is  in  a  stranger. 

[3]  If  the  legal  tiUe  to  lands  is  in  issue  in 
a  suit  for  partition  the  Court  of  Chancery 
will  either  dismiss  the  bill  or  retain  it  to  al- 
low the  title  to  be  settled  In  an  action  at 
law.  Slockbower  v.  Kanouse,  50  N.  J.  Bq. 
481,  26  AtL  833;  Havens  v.  Sea  Shore  Land 
Oa,  67  N.  J.  Bq.  142,  41  Atl.  755.  And  the 
practice  is  quite  universal  to  retain  it. 

Hie  objection  to  the  master's  report  must 
be  overmled,  and  the  bill  dismissed. 


(87  N.  J.  Eq.  397) 
TRENTON    &    MERCER    COUNTY    TRAC- 
TION CORP.  et  al.  v.  INHABITANTS  OF 
EWING  TP.  et  al.    (No.  40/307.) 

(Court  of  Chancery  of  New  Jersey.    Aug.  10, 
1917.) 

fStittahui  hv  the  Court.) 

1,  Limitation  or  Actions  $=3ll(3),  13— Es- 
TOPPEi/— Public    Biohts— Municipalitiees. 

Municipal  corporations  are  not,  as  respects 
public  rights,  within  statutes  of  limitations,  but 
the  principle  of  an  estoppel  in  pais  is  applicable 
in  exceptional  cases,  empowering  the  court  to 
decide  the  question,  not  on  the  mere  lapse  of 
time,  but  upon  all  the  circumstances  of  the 
case,  and  to  hold  the  public  estopped  or  not,  as 
right  and  justice  may  require. 

2.  Stbicet  Railroads  (g=>28(l)— Injunction- 
Removal  or  Turnout— EsTOPPEi, 

A  street  railway  company,  having  obtained 
permission  to  construct,  maintain,  and  operate 
a  street  railway  upon  a  township  road,  by  ordi- 
nances of  the  township  committee  and  county 
board  of  freeholders,  in  accordnuce  with  a  map 
of  its  proposed  route  designating  certain  turn- 
outs at  given  noints,  in  constructing  its  rail- 
road changed  toe  location  of  one  of  its  turn- 
outs from  the  point  de-signnted  on  the  map  t» 
another  point  a  considerable  distance  away, 
where,  however,  its  location  could  have  been 
authorized  originally;  the  railroad  and  turnout, 
thus  constructed,  were  maintained  and  operated 
for  12  years  without  any  protest  from  the  mu- 
nicipalities, or  the  landowner  in  front  of  wtiose 
property  the  turnout  was  constructed,  the  pres- 
ent owner  having  acquired  the  property  after  the 
turnout  had  been  installed  for  10  years,  having 
had  actual  notice  of  its  location  and  operation 
when  he  purchased  and  went  into  possession 
of  the  premises.  Held,  that  the  municipalities, 
both  of  which  ordered  the  removal  of  the  turn- 
out, one  of  which  (the  township)  directed  its 
agent  actually  to  remove  it,  and  that  agent 
should  be  perpetually  enjoined  from  removing 
the  turnout  from  its  present  location  ;  no  injunc- 
tion to  go .  against  the  individual  landowner, 
who  never  threatened  to  removo  the  turnout, 
has  no  intention  of  doing  so,  and  only  urged 


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101  ATLANTIC  REPORTER 


(N.J. 


apon  the  mnnidpalitiea  that  they  take  proper 
steps  to  remove  it. 

Bill  by  the  Trenton  &  Mercer  County  Trac- 
tion Corporation  and  the  Trenton,  Penning- 
ton &  Hopewell  Street  Railway  Company 
against  the  Inhabitants  of  the  Township  of 
Ewlng,  the  Board  of  Chosen  Freeholders  of 
Mercer  County,  and  Arthur  S.  Kniffln,  to 
prevent  a  removal  of  a  railroad  turnout 
Perpetual  injunction  granted  against  the 
township  and  the  board. 

Edward  M.  Hunt  and  George  W.  Macpber- 
Bon,  both  of  Trenton,  for  complainants.  Wil- 
lis P.  Balnbridge,  of  Trenton,  for  defendants 
Ewing  Tp.  and  Alwyn  A.  Temple.  Samuel  C. 
Kulp,  of  Trenton,  for  Board  of  Chosen  Free- 
holders of  Mercer  County.  James  &  Malcolm 
G.  Buchanan,  of  Trenton,  for  defendants  Ar- 
thur S.  Knililn  and  others. 

WALKER,  Ch.  On  November  1,  1902,  the 
township  of  Ewlng  in  the  coimty  of  Mercer 
passed  an  ordinance  granting  to  the  Trenton, 
Pennington  &  Hopewell  Street  Railway  Com- 
pany, one  of  the  complainants,  permission 
and  right  to  construct,  maintain,  and  operate 
a  street  railway  upon  the  Pennington  road  in 
that  township,  and  at  or  about  the  same  time 
the  Board  of  Chosen  Freeholders  of  the  coun- 
ty of  Mercer  also  passed  an  ordinance  grant- 
ing permission  to  the  railway  company  nam- 
ed to  construct  its  railway  along  the  Pen- 
nington road  in  the  township  of  Ewing. 
These  ordinances  provided  that  the  railroad 
should  consist  of  a  single  track,  with  three 
turnouts  in  the  township  of  Ewing,  as  shown 
upon  the  map  of  its  proposed  route.  The 
purpose  of  the  turnouts,  or  switclies  as  they 
are  otherwise  called,  was  to  enable  cars  to 
pass  each  other  on  the  track  while  going  In 
opposite  directions.  By  the  passage  of  the 
two  ordinances  mentioned  the  statutory  right 
of  the  company  to  construct  the  railroad  be- 
came complete,  and  subsequently,  in  the  year 
1903,  the  company  constructed  its  railroad 
over  the  route  granted,  with  three  turnouts, 
or  switches,  in  the  township  of  Ewlng,  one 
of  which  was,  and  is,  known  as  "Green's 
switch,"  the  one  in  question  in  this  suit, 
which,  however,  was  not  built  at  the  point 
shown  on  the  map,  but  at  a  distance  of  some 
1,700  feet  therefrom. 

On  or  about  October  15,  1010,  the  Tren- 
ton, Pennington  &  Hopewell  Street  Railway 
Company  leased  Its  railroad  and  appurte- 
nances, including  its  rights  under  the  ordi- 
nances mentioned,  to  the  Trenton  &  Mercer 
County  Traction  Corporation,  the  other  com- 
plainant. In  the  year  1915  the  Ewlng  tovra- 
shlp  committee  and  the  freeholders  of  Mercer 
notified  the  complainants  to  remove  this 
switch,  and,  the  demand  not  being  complied 
with,  the  township  committee  ordered  Its 
agent,  the  defendant  Alwyn  A.  Temple,  to 
make  the  removal.  This  resulted  from  com- 
plaint and  request  emanating  from  Dr.  Ar- 
thur S.  Knlffln,  the  owner  of  the  land  in 
front  of  which  the  switch  Is  located.. 


Dr.  Knlffln  in  his  affidavit  says  that  his 
house  on  the  Pennington  road  is  Immediately 
opposite  Green's  switch;  that  he  has  lived 
there  for  nearly  3  years,  and  that  the  switch 
la  an  inconvenience  to  him ;  that  he  never 
had  any  intention,  nor  has  he  any  Intention, 
of  personally  removing  the  switch  or  causing 
It  to  be  removed,  nor  has  he  ever  threatened 
to  do  so,  but  has  urged  upon  the  board  of 
freeholders  and  the  township  committee  that 
they  take  proper  legal  steps  to  have  it  re- 
moved. He  says  in  his  answer  that,  on  or 
about  August  1,  1915,  he  first  learned  that 
Green's  switch  was  Illegally  constructed  and 
maintained,  that  is,  without  authority  for 
construction  and  maintenance  opposite  the 
dwelling  into  which  he  moved  a  few  years 
ago,  which  was  10  years  after  the  switch  hart 
been  constructed ;  it  having  been  built  some 
12  years  before  proceedings  were  taken  look- 
ing to  its  removal. 

Very  full  affidavits  were  submitted  on  both 
sides,  and  the  cause  was  fully  argued  on  the 
hearing  of  the  motion  for  a  preliminary  In- 
junction, and  I  asked  the  parties  If  they  were 
willing  to  submit  the  matter  as  on  final  hear- 
ing, but  this  was  not  assented  to;  therefore 
the  matter  was  disposed  of  on  motion  tot  in- 
terlocutory Injunction,  which  was  granted. 
After  stating  the  facts  substantially  as  above 
set  forth,  I  said  in  my  memorandum  grant 
ing  the  preliminary  injunction: 

"Given  a  switch  or  turnout  wliich  existed  in 
a  locality  for  12  years  without  protest  from  ei- 
ther the  owner  of  abutting  land  or  the  propca' 
authorities,  and  it  follows  that  the  status  should 
be  preserved  pendente  lite,  especially  as  it  is 
not  shown  that  any  decided  uconvenienco  to 
the  public  or  the  landowner  will  occur  ad  in- 
terim." 

After  the  granting  of  the  Interlocutory  In- 
junction the  parties  consented  that  I  should 
decide  the  question  as  on  final  hearing,  on  the 
pleadings,  depositions^  and  exhibits  submit- 
ted. 

[1, 2]  After  a  careful  review  of  the  whole 
case  my  opinion  now  is  that  the  complainants 
are  entitled  to  have  the  status  preserved  per- 
petually. No  inconvenience  whatever  to  the 
public  will  result  from  It,  and  very  little,  if 
any,  to  the  landowner  in  front  of  whose  prop- 
erty the  turnout  was  laid  in  1903,  and  has 
since  been  maintained;  and  eq)ecially  should 
the  injunction  go,  as  the  defendant  Ur.  Knif- 
fin  did  not  own  the  premises  at  the  time  of 
the  turnout's  construction,  but  acquired  the 
im>perty  about  10  years  afterwards,  with 
the  turnout  In  front  of  It 

Although  the  turnout  or  switdi  Is  not  lo- 
cated at  the  point  shown  upon  the  map  of  the 
railway  line  and  designated  by  the  ordinances 
granting  x)ermisslon  for  the  laying  of  the 
tracks,  and  if  it  had  been  built  at  the  point 
designated  by  the  ordinance  and  map  It  would 
not  be  in  front  of  the  property  so  long  after- 
ward acquired  by  the  defendant  Dr.  Knlffln, 
1  am  of  opinion  that  the  defendants,  or  any 
one  of  them,  are  not  entitled  to  insist  upon  its 
removal.    That  this  court  has  power  to  en- 


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N.  J.)     TKENTON  A  MERCER  <X>.  T.  CORP.  v.  INUA-BITANTS  OP  EWINO  TP.     1030 


Join  the  removal,  by  a  municipal  corporation, 
of  tracks  of  a  street  railway  company.  In  a 
proper  case,  has  been  decided  In  Asbury  Park 
4  Sea  Girt  Ky.  Co.  v.  Neptune  Township,  73 
K  J.  Eq.  323,  67  AH.  790,  affirmed  75  N.  J. 
£}q.  562,  74  Atl.  998.  The  question  is:  Is  this 
a  proper  case?    I  think  It  Is. 

Although  consent  to  the  btilldlng  of  the 
road  with  the  turnouts  shown  on  the  map  was 
legally  granted,  the  defendants  contend  that 
the  turnout  in  question,  not  being  located  at 
the  point  designated  on  the  map,  consequently 
was  not  authorized  by  the  ordinances,  and 
that  ratification  of  the  location  of  the  turn- 
out. If  any,  was  given  Informally,  and  not  by 
the  proper  munldpal  authorities  In  meeting 
assembled'  for  that  purpose;  and  they  rely 
largely  upon  West  Jersey  Traction  Co.  v. 
Camden  Horse  Ry.  Co.,  53  N.  J.  Bq.  163,  35 
Atl.  49,  whereto  it  was  held  that,  where  a 
statute  requires  consent  by  a  township  com- 
mittee to  legalize  the  laying  of  a  street  rail- 
road, It  Is  necessary  that  the  consent  should 
be  given  when  the  members  of  the  committee, 
or  a  majority  of  them,  are  assembled  In  cor- 
porate meeting,  and  that  tlie  declarations  of 
individual  members  are  not  legal  evidence  to 
prove  acts  of  the  corporate  body,  nor  Is  the 
public  estc4>ped  by  sudi  declarations.  That 
case,  however,  was  one  in  which  an  Injuno 
tion  was  sought  to  restrain  the  alleged  im- 
proper building  of  a  line  of  railroad  in  the 
first  instance;  and  the  doctrine  of  estoppel 
against  a  municipal  corporation  whl<ii  bad 
for  at  least  12  years  acquiesced  in  an  actual 
location  of  a  railroad  turnout,  which  it  could 
bave  authorized  in  the  first  instance,  was  not 
presented.  That  estoppel  obtains  against  an 
individual  defendant  in  such  case  I  think  un- 
doubted. 

In  O'Leary  v.  Street  Railway  Co.,  87  Kan. 
22,  128  Paa  746,  it  was  held  by  the  Supreme 
Conrt  of  Kansas  that  the  city  of  Kansas  City 
should  be  estopped  from  questioning  the  le- 
gality of  certain  completed  changes  In  one  of 
its  streets,  made  hy  a  street  railway,  company 
under  color  of  ■  ordinances  of  the  dty,  al- 
though such  changes  were  not  warranted  by 
the  ordinance,  but  which  were  to  be  consider- 
ed as  luivlng.  been  lawfully  made,  the  city 
having  had  pai^erMi^  the  first  instance  to  au- 
thorize them,  and  that  the  abutting  property 
owner  ^ould  not  -be  allowed  damages  on  the 
theory  that  the  work  was  unlawful  and  cre- 
ated a  nuisance.  The  court  obseryed,  at  page 
30  of  87  Kan-,  at  page  749  of  123  Pac.  (quoting 
from  Bridge^ater  Boro.  v.  Traction  Co.,  214 
Jfa.  343,  63  4tl-  796): 

"Where  a  street  railway  company  in  .laying 
itm  track  on  a. borough  street  aas  slightl:?  de- 
flected from  the  line  for  the  track  established 
i>y  the  boroaifh  and  the  borough  has  acijuiesced 
in  this  location  of  the  track  for  10  years,  it 
will  be  presumed  to  have  ratified  the  deflected 
line,  and  if  the  railway  company  in  recoustruct- 
irig  its  track  lays  it  upon  the  deflected  line, 
the  borough  has  no  standing  to  object." 

The  situation  before  me  Is  quite  similar  to 
ttiat  in  Bridgewater  Borb.  v.  Traction  Com- 
vany  quoted  in  O'Leary  v.  Street  Railway 


Company.  There  a  street  railway  company 
laid  its  tracks,  not  on  the  line  established  by 
the  municipality,  but  on  one  deflected  there- 
from. Here,  the  railway  company  has  con- 
structed a  swltcii,  not  at  the  iK>int  located 
by  the  ordinance  and  map,  but  at  some  dis- 
tance therefrom.  There  is  no  practical  differ- 
ence, at  least  none  in  principle,  in  deflecting 
the  tracks  of  a  street  railway  from  a  line 
established  by  municipal  authority,  and  In 
building  a  turnout  not  at  an  authorized  point, 
but  at  one  somewhat  removed  therefrom.  It 
is  not  upon  the  docteine  of  adverse  jwsses- 
sion,  but  upon  that  of  estoppel  in  pais,  that 
the  municipality  and  the  private  owner 
should  now,  under  ail  the  drcumstancea  of 
the  case,  be  enjoined  from  removing  the  turn- 
out from  the  location  where  it  was  main- 
tained for  12  years  without  protest  from  the 
municipality  or  the  landowner,  the  present 
landowner  having  acquired  his  property  after 
the  switch  had  been  installed  for  10  years, 
and  who,  therefore,  had  actual  notice  of  its 
location  and  operation  at  the  time  that  he 
purchased  and  went  into  possession  of  the 
premises  in  front  of  which  the  turnout  is  laid. 
Judge  Dillon,  in  Ills  work  on  Municipal  Cor- 
porations (6th  Ed.)  vol.  3,  p.  1900,  §  1194. 
treating  of  adverse  possession  of  streets  and 
highways,  states  his  view  and  suggestions  as 
to  the  true  doctrine  as  follows: 

"Upon  consideration,  it  will  perhaps  appear 
that  the  following  view  is  correct:  Municipal 
corporations,  as  we  have  seen,  are  re»^rded  a« 
having,  /n  some  respects,  a  doable  character, 
one  public  and  the  other  (by  way  of  distinction) 
private.  As  respects  property  not  be)d  for 
public  use,  or  upon  fiublic  trusts,  and  as  re- 
spects contracts  and  rights  of  a  private  nature 
there  i«  no  reason  why  such  corpoiations  should 
not  fall  within  limitation  statutes,  and  be  af- 
fected by  them  unless  excluded  from  them.  For 
example,  in  an  action  on  contract  or  for  tort, 
a  municipal  corporation  may  plead  or  have 
pleaded  against  It  the  statute  of  limitations. 
But  such  a  corporation  does  not  own  and  caii- 
not  alien  public  streets  or  places,  and  no  mere 
laches  on  its  part  or  on  that  of  its  officers  can 
defeat  the  right  of  the  public  thereto;  yet 
there  may  grow  up,  in  consequence,  private 
rights  of  more  persuasive  force  in  the  narticidar 
case  than  those  of  the  public.  It  will  perhaps 
be  fonnd  that  cases  sometimes  arise  of  such  a 
character  that  justice  requires  that  an  equi- 
table estoppel  shall  be  asserted  even  against 
the  public,  but,  if  so,  such  cases  will  form  a 
l^w.  unto  themselves,  and  dp  not  fall  witliin.the 
l&gal  operation  of  limitation '  enactments.  The 
author  cannot  assent  to  the  doctrine  that,  as 
respects  public  rights,  municipal  cor^rations 
are  impliedly  within  ordinary  limitation  stat- 
utes. It  is  nnsafe  to  recognise  sucdi  a  prin- 
ciple. .  But  there  is  no' dandier  in  recognizing 
the  principle  of  an  estoppel  m  pais,  since  this 
leaves  the  courts  to  decide  the  question,  not  by 
the  mere  lapse  of  time,  but  upon  all  the  circutn- 
stances  of-  the  case  to  hold  the  public  estopped 
or  not,  as  right  and  justice  may  require." 

This  same  doctrinfe  of  equitable  estoppel 
against  the  public  arising  out  of  matter  in 
paia  was  asserted  by  me,  when '  vice  chan- 
cellor, in  Mason  v.  Ross,  75  M.  J.  £q.  136, 143, 
71  Atl.  141,  reversed  77  Ni  J.  Eq.  527,  77  Aa 
44,. but  upon  other  ground. 

The  views  above  expressed  lead  to  the  con- 
clusion  that   the   defendant  muoicipalitiea, 


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101  ATLANTIC  REPORTER 


(N.J. 


Doth  of  whldt  ordered  the  removal  of  ttie 
turnout,  one  of  which  (the  township)  direct- 
ed its  agent  actually  to  remove  it,  and  the 
agent  should  be  perpetually  enjoined  from  re- 
moving the  turnout  from  its  present  loca- 
tion; no  injunction  to  go  against  the  Indi- 
rldual  landowner,  who  never  threatened  to 
remove  the  turnout,  has  no  intention  of  doing 
so,  and  only  urged  upon  the  municipalities 
that  they  take  proper  steps  to  remove  it. 
The  only  award  of  costs  to  be  made  inter 
partes  will  be  in  favor  of  the  complainants 
against  the  defendant  municipalities. 


(88  N.  J.  Bq.  «) 

LAWRENCE  V.   PROSSER  et  al. 

(No.  42/187). 

(Court  of  Chancery  of  New  Jersey.     Aug.  16, 

1917.) 

1.  Deeds  e=9211(3)  —  Fbaud  —  Evidence— 

SumCIENCT. 

Evidence  held  insufScient  to  show  frand  in 
act  of  deceased  in  securinf;  deed  froin  her  neph- 
ew of  his  interest  In  uncle's  estate. 

2.  SPEoino    Perfokuance    <8=>86— Contbact 
TO  Devise. 

Where  one  heir  deeded  the  other  his  inter- 
ests in  land,  for  which  tbe  grantee  orally  agreed 
to  make  a  will  amply  providing  for  the  gran- 
tor, and  later  the  parties  made  mutual  wills, 
each  making  the  other  the  sole  beneficiary,  the 
contract  was  sufficiently  specific  to  warrant 
equitable  relief  in  favor  of  the  grantor,  when 
the  grantee  subsequently  altered  her  will  to  his 
detriment 

3.  SPECIFTO     PEBFOKlfANCB     «=a86— CONTBACT 

TO  Devise. 
In  such  case,  the  mere  fact  that  the  agree- 
ment was  completed  at  a  later  date  than  that 
on  which  the  oral  agreement  was  made  did  not 
prevent  consideration  of  the  entire  transaction 
as  one  contract. 

4.  Wills  ®=»64— Contract  to  Devise— Rkv- 
ocabilitt. 

The  mere  fact  that  the  completion  of  a  con- 
tract amply  to  provide  for  another  person  was 
in  a  will  did  not  make  the  contract  revocable. 
6.  Specific  Pebfokuance  ^=s>129  —  Fraud- 
Evidence — SUFFICIENOT. 

One  who  deeded  interest  in  estate  to  his 
aunt,  in  consideration  for  her  amply  providing 
for  him  in  her  will,  and  who,  thereafter  sued  her 
husband's  estate  for  the  amount  which  she  paid 
her  husband,  could  not  have  both  such  amount 
and  an  enforcement  of  the  contract  to  provide 
for  him  in  the  will. 

Suit  by  Luman  W.  Lawrence  against  Jud- 
8on  C.  Prosaer,  executor  of  Mrs.  Dean,  and 
otbers.    Decision  reserved. 

Scott  German  and  Frank  E.  Bradner,  both 
of  Newark,  for  complainant.  Hugh  B.  Reed 
and  Theodore  D.  Gottlieb,  both  of  Newark, 
for  defendant  Prosser.  Edward  Q.  Keasbey, 
of  Newark,  for  town  of  Bucksport 

STEVENS,  y.  0.  Tbe  complainant  seeks 
to  have  a  transfer  of  an  interest  in  property, 
made  by  him  to  his  aunt,  Mrs.  Dean,  annull- 
ed, on  the  ground  of  fraud.  In  April,  1911, 
Luman  Warren,  a  resident  of  Bucksport,  Me-, 
and  an  uncle  of  complainant,  died  Intestate, 
leaving  an  estate,  consisting  of  personalty 


and  realty,  valued  at  about  $60,000.  His 
heirs  and  next  of  kin  were  a  sister,  Mrs. 
Dean,  and  three  nephews,  John,  Stevens,  and 
Luman  Lawrence.  Mrs.  Dean  wns  entitled 
to  one-half  of  his  estate,  and  his  three  neph- 
ews, each,  to  one-sixth. 

The  complainant,  Luman,  who  is  about  55 
years  old,  had  up  to  March,  1905,  lived  with 
his  brother  John  near  Boston,  but,  as  he  says, 
being  out  of  work,  he,  at  bis  aunt's  invita- 
tion, came  to  live  with  her  in  Newark.  The 
family  then  consisted  of  Mr.  Dean,  who  wa» 
engaged  in  tbe  business  of  keeping  a  restau- 
rant, and  of  Mrs.  Dean.  They  had  no  serv- 
ant, and  Luman,  from  tbe  time  he  went  there, 
took  the  place  of  one.  He  did  everything 
that  a  maid  of  all  work  would  ordinarily 
have  done.  His  aunt's  health  was  poor,  and 
she  herself  could  do  but  little.  He  lived  with 
her,  in  .this  way,  up  to  the  time  of  her  death 
in  June,  1916.  Mr.  Dean  predeceased  bis 
wife  by  a  few  months.  She  is  thus  descril>- 
ed  by  Rev.  Dr.  Waters: 

She  was  a  "domineering  shrew.  She  irapreas- 
ed  me  as  a  woman  in  whom  there  was  a  strus- 
glc  going  on  of  unusual  strength  between  the 
good  and  the  evil  in  her.  At  times  she  was 
very  quiet  and  of  a  very  gracious  personality, 
and  other_  times  she  was  extremely  hard.  On 
one  occasion,  she  ordered  Luman  out  of  my 
presence  and  her  presence,  as  I  don't  think  I 
wo»ild  order  a  dog  away  from  my  premises. 
•  •  ♦  There  is  an  old  England  term  that 
says  she  was  very  tight.  She  had  an  obsea- 
sion,  I  think,  as  to  money  affairs,  *  *  *  it 
was  her  inordinate — well— greed,  if  I  may  so- 
call  it,  that  was  the  controlling  impulse  in  the 
woman's  life,  with  a  certain  intense  hatred 
which  she  exhibited,  which  she  either  felt  or 
assumed  to  feel,  toward  her  relatives." 

Of  Luman  be  says  that: 

He  "always  impressed  me  as  extremely  docile, 
obedient;  as  a  person  who  had  subordinated  hi* 
own  mind  and  will  to  the  direction  and  con- 
trol of  Mrs.  Dean." 

This  description  of  the  two  principal  char- 
acters in  the  case  is  borne  out  by  the  evidence 
of  the  other  witnesses.  Shortly  after  the 
death  of  Luman  Warren,  the  uncle,  at  Buck- 
sport, Mrs.  Dean  and  her  nephew  went  there 
and  conferred  with  Mr.  Smith,  an  attorney, 
who  subsequently  became  the  administrator. 
A  dispute  at  once  arose,  as  to  the  adminis- 
tration, between  Mrs.  Dean  and  ber  Massa- 
chusetts nephews,  which  produced  a  bitter 
feeling  between  them.  Mrs.  Dean  wanted 
what  she  regarded  as  a  controlling  interest 
in  the  estate,  and  proposed  to  Luman  that  he 
assign  his  one-sixth  Interest  to  her.  She  did 
this  for  two  reasons:  First,  to  secure  con- 
trol; and,  second,  to  protect  Luman  against 
bla  brothers,  who,  as  she  thought,  rightly  or 
wrongly,  would,  if  they  had  the  opportunity, 
play  upon  Luman's  easy-going  disposition 
and  strip  him  of  his  property.  Mr.  Smith, 
who  is  an  intelligent  and  disinterested  wit- 
ness says : 

"I  can  recall  that  he  [Laman]  denounced  his 
brothers  in  unmeasured  terms,  and  Mrs.  Dean 
was  equally  as  bitter  against  them  as  Lomaa 


^— sFor  other  cum  see  same  topic  and  KET-NUMBBR  la  all  Kay-Numbarad  DtgosU  and  Indaxas 


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IjA WHENCE  ▼.  PROSSER 


1041 


waa  at  the  time.  •  •  •  She  [Mrs.  Dean]  stat- 
ed that  she  was  afraid  that  if  his  brothers, 
Stevens  and  John,  got  his  share  of  the  Luman 
Warren  estate  into  their  hands,  they  would 
turn  him  out— cast  him  adrift  upon  the  world. 
•  •  •  She  stated  to  me  [his  evidence  shows 
that  the  statement  was  made  in  Lnman's  hear- 
ing and  was  approyed  by  Luman]  that  he  was 
possessed  of  certain  infirmities  and  that  his 
brothers  had  turned  him  out,  and  he  went  on 
there  [to  Newark],  and  she  took  him  in  and 
made  a  home  for  him,  provided  for  him,  and 
intended  to  provide  for  nim  as  long  as  he  liv- 
ed, and  make  ample  provision  for  him  in  her 
wiU." 

Mr.  Smith  drew  a  deed  from  Luman  to  his 
aunt,  by  which  he  conveyed  to  her  his  un- 
divided sixth  interest  in  the  land  and  person- 
al estate  derived  from  Ms  uncle.  This  deed 
was  executed  at  Newark  on  August  2,  1911. 
I  have  no  doubt  whatever,  notwithstanding 
Luman's  present  denial,  that  he  understood 
the  purport  and  object  of  it,  and  that  he 
agreed  to  It,  on  the  faith  of  his  aunt's  prom- 
ise to  "provide  for  him  at  her  home  as  long 
as  he  lived,"  and  amply  to  provide  for  him 
by  her  will  "after  she  was  dead  and  gone." 
Mr.  Smith's  statement  of  the  bargain  is  cor- 
roborated by  Mrs.  Dean's  letters  and  acts, 
by  witnesses  In  the  best  position  to  remem- 
ber, and,  in  the  end,  by  Luman  himself. 

On  May  2,  1813,  she  and  Luman  executed 
mutual  wills.  He  gaye  his  property  to  her, 
and  she,  by  a  codicil  to  a  former  will,  after 
giving  her  husband  (who,  as  I  have  said, 
predeceased  her)  a  life  interest,  devised  and 
bequeathed  her  estate  to  Dr.  Oeorge  W.  Cle- 
ment, of  Boston,  in  trust  to  invest  and  pay 
the  Income  periodically  to  Luman  during  his 
natural  life  and  at  his  death,  to  pnrdiase  the 
necessary  land  and  erect  thereon  a  suitable 
building  to  be  used  as  a  public  hall  for  the 
Inhabitants  of  Buckspoit.  Shortly  before, 
under  date  of  April  20, 1913,  she  had  written 
to  Dr.  Clement,  telling  him  that  words  could 
not  express  her  gratitude  toward  him  for  ex- 
pressing his  willingness  to  act — 
"when  the  time  comes ;  for  it  is .  my  duty  to 
provide  and  protect  my  sister's  son.  •  •  • 
Luman's  inheritance  from  his  uncle  will  be  in 
the  neighborhood  of  $14,000."  (She  apparent- 
ly overrates  the  amount,  the  evidence  indicating 
that  it  is  from  $10,000  to  $12,000.)  "liuman 
has  sold  to  me  all  his  claims,  and  I  shall  in  re- 
turn give  him  all  my  property  during  his  life, 
under  guardianship,  that  he  will  be  cared  for 
pad  not  a  prey  to  scheming  friends." 

This  letter  appears  to  me  to  be  conclusive 
ev1d«ice  that  Mrs.  Dean  did  not  regard  the 
transfer  in  the  light  of  a  gift,  but  as  the  con- 
sideration for  a  binding  promise  on  her  part. 
To  Rev.  Dr.  Waters  she  spoke  in  the  same 
strain: 

"She  informed  me  that  she  and  Luman  had 
exchanged  wills ;  Luman  liad  willed  his  proper- 
ty to  her,  and  she  hers  to  him;  that  it  was  her 
purpose  to  see  that  her  property  reverted  to 
Luman  when  she  passed  away,  subject  to  re- 
strictions. She  did  not  think  that  he  was  as 
capable  as  he  might  be,  on  account  of  his  deaf- 
ness or  inexperience,  to  take  charge  of  the 
property,  and  she  was  going  to  will  it  so  that 
he  would  have  the  use  of  It  subject  to  restric- 
tions." "She  was  afraid  some  sliarp  fellows  I 
101  A.-66 


might  get  the  property  away  from  Luman,  and 
she  wanted  him  to  have  the  benefit  of  it  daring 
his  lUe." 

On  February  29, 1916,  she  apparently,  from 
mere  caprice,  revoked  her  disposition  in  La- 
man's  favor,  and  gave  him,  instead,  a  yearly 
income  of  $600  during  his  life.  Luman,  when 
cross-efiimined  at  the  close  of  the  case,  after 
denying  that  the  deed  of  August  2,  1911, 
was  read  to  him  before  he  signed  it,  testifies 
as  follows: 

"Q.  But  yon  knew,  when  you  signed  it,  that 
you  had  signed  a  deed?  A.  Well,  I  knew,  as 
you  might  say,  that  it  was  a  paper  for  that 
purpose.  •  •  •  My  aunt  told  me  it  was  to 
sign  that  paper  to  hurry  up  the  sale  of  the 
property,  and  that  is  all  that  I  know.  Q.  She 
[Mrs.  Dean]  said  it  was  a  deed,  didn't  she? 
A.  A  deed,  or  a  paper;  whatever  you  might 
call  It.  Q.  And  you  knew  as  a  matter  of  fact 
it  was  a  deed?  A.  I  wouldn't  say  as  a  matter 
of  fact  that  I  knew  it  was  a  deed;  but  I  knew 
she  said  it  was  a  paper  where  that  would  be 
done  to  hurry  up  the  settlement  of  the  property. 
I  didn't  know  that  X  was  throwing  my  stuff 
away.  •  •  •  Q.  Xou  never  questioned  the 
validity  of  that  act  until  you  filed  your  bill? 
[August  22,  1916.]  A.  Never  did  question  It; 
didn't  know  anything  about  it.  •  •  •  Q. 
Didn't  you  know  as  a  matter  of  fact  that  your 
aunt  had  provided  for  you  after  her  death? 
A.  Why— after  hep  death— why,  yes,  I  saw 
what  it  said  in  the  will.  That  is  all  I  see.  All 
I  knew.  Q.  And  was  that  satisfactory  to  you? 
A.  Good  God!  No;  it  wasn't.  Q.  When  did 
this  dissatisfaction  on  your  part  first  mani- 
fest itself?  A.  When  did  it?  Why  the  first 
time  I  knew  it  was  said  in  the  will.  [The  wit- 
ness is  here  evidently  referring  to  the  second 
will,  which  cut  him  down  to  an  income  of  $600 
a  year.]  Q.  What  had  yon  expected?  A.  I 
expected  I  had  the  whole  damn  thing.  Q. 
What  led  you  to  that  expectation?  A.  That 
was  because  the—  according  to  this  will  that 
she  and  I  made;  by  golly,  that  was  what  it 
was.  Q.  Well,  then,  yon  did  expect  that  she 
had  made  provision  for  you;  only  you  expected 
a  better  provision  than  manifested  itself.  Isn't 
that  so?  A.  Wtll,  that  might  be  so;  and  an- 
other thing :  According  to  that  will  there,  what 
she  drew— -I  drew  in  her  favor  and  my  favor.  I 
was  to  have  the  whole  thing.  Tliat  is  what  I 
supposed  I  done.  Q.  And  was  that  your  agree- 
ment with  her ;  that  you  were  to  have  the  whole 
thing?  A.  That  was  the  agreement,  right 
straight  down,  when  that  will  was  made  out." 

The  two  wills  of  May  2,  1813,  were  drawn 
by  Judge  Raymond.  Mrs.  Dean  and  her 
nephew  went  to  his  office  together,  and  it  Is 
perfectly  obvious  that  their  contents  were 
known  to  both  and  satisfactory  to  both.  The 
will  of  Mrs.  Dean  was  evidently  intended  to 
be  In  fulfillment  of  her  promise  made  in  Mr. 
Smith's  presence,  in  the  summer  of  1911, 
that,  in  consideration  of  the  transfer  of  Ui- 
man's  interest  in  his  uncle's  estate,  she  would 
amply  provide  for  him.  And  the  bequest  in 
the  will  of  1913  was  an  ample  provision.  It 
would,  in  the  events  that  happened,  have 
given  him  a  clear  yearly  Income  of  over  $2,- 
000 — much  more  than  an  equivalent  for  the 
interest  he  had  turned  over.  The  bequest  in 
the  win  of  1916  was  not  an  ample  provision. 
What  Induced  Mrs.  Dean  to  change  her  will 
just  before  she  died  does  not  appear.  Lu- 
man continued  to  be  her  faithful  servitor  up 
to  her  death.    It  is  true  that,  between  the 


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101  ATIiANTIC  REPORTER 


(N.J. 


time  of  the  making  of  the  mutual  wUIs  and 
her  death,  her  estate  had  been  augmented 
$20,000,  or  thereabout,  by  what  her  husband 
had  left  her ;  but,  even  without  ttils  addition, 
Luman  would  have  received  three  times  as 
much  as  she  finally  gave  him. 

[1]  The  complainant  has  put  in  evidence 
letters  showing  that  Mrs.  Dean  was  trying  to 
conceal  from  her  Massachusetts  relatives  the 
true  character  of  the  transfer,  and  he  has 
produced  witnesses  who  speak  of  her  casual 
declarations  to  the  effect  that  Luman's  inter- 
est had  been  turned  over  "for  her  to  take 
care  of."  These  do  not,  as  It  seems  to  me, 
throw  any  additional  light  upon  the  case. 
The  transaction,  stated  in  its  simplest  form, 
was  obviously  this:  Mrs.  Dean  wanted  to 
control  as  much  of  her  brother's  estate  as  she 
could,  and  she  wanted  to  protect  Luman 
against  himself;  to  protect  him  in  the  way 
that  she  thought  best.  In  point  of  fact,  up  to 
within  three  months  of  her  death,  her  plan 
to  provide  for  him  was  greatly  for  his  inter- 
est He  had  no  one  dependent  upon  him,  was 
not  likely  to  marry,  and  would  be  better  off 
with  a  large  Income  than  a  small  principal. 
During  the  period  between  August,  1911,  and 
February  29,  1016 — the  date  of  the  making 
of  the  last  will — ^there  Is  no  evidence  that  she 
liad  the  slightest  intention  of  perpetrating  a  , 
fraud  upon  him.  The  equivalent  she  Intend-  | 
ed  to  give  was  more  than  equal  in  money 
value  to  what  she  had  received.  The  injus- 
tice tliat  he  had  suffered,  if  it  be  an  injus- 
tice, arises  from  the  change  in  his  aunt's  pro- 
vision for  him.  Un  these  facts,  it  seems  quite 
impossible  to  find  that  the  deed  was  fraudu- 
lently obtained. 

It  Is  argued  that  the  court  should  annul 
the  transfer  on  the  principal  of  Slack  v. 
Rees,  21  Dick.  447.  This  and  similar  cases 
do  not  apply,  for  the  reason  that  this  is  not 
a  case  of  an  Improvident  gift,  but  of  a  con- 
tract which,  in  terms,  stipulated  for  a  full 
equivalent  Luman  was  to  be  amply  provid- 
ed for.  While  he  was .  no  doubt  weak  and 
yielding,  and  Ids  annt  imiwrious,  there  is  not 
the  sUgfateat  evidence  that  he  did  not,  ];>ossess 
sufficient  capacity  to  make  a  bargain  with 
her. 

This  brings  me  to.  the  question  whether 
this  court  can  give  reli^,  and  what  that  re- 
lief ought  to  be.  The  question  is  not  whether 
the  wills  of  May  2, 1913,  are  binding,  because 
executed  on  the  same  day  and  parts,  of  one 
transaction,  but  whether  Mrs.  Dean's  wUl, 
made  in  fulfillment  of  her  promise  and  based 
on  adequate  consideration,  is  not  binding  up- 
on her.  The  evidence  justifies  the  inference 
that  the  provision  was  made  in  fulfillment  of 
her  promise  and  that  it  was  accepted  as  such 
by  the  promisee.  The  executor  and  the  town 
of  Bucksport  cite  Eggers  v.  Anderson,  63,  N. 
J.  Eq.  264.  49  AU.  578,  55  U  R.A.  570,  as  a 
controlling  authority.  As  I  UBderstand.the 
decision.  Justice  Dtxon  made,  a  distinction 
between  a  promise,  based  on  valuable  con- 
sideration, to  make  a  specific  provision  by 


will,  and  a  promise  merely  to  make  a  will;  a 
promise  induced  by  charitable  acts  of  the 
promisee  performed  and  to  be  performed; 
acts  which  the  promisee  had  done  and  con- 
templated doing,  but  without  legal  obliga- 
tion resting  upon  her  to  continue  them.  He 
concedes  that  a  promise  to  make  a  specific 
provision  by  will,  supported  by  consideration, 
may  be  binding ;  and  such  is  the  current  of 
authority. 

Schouler,  in  his  book  on  Wills  and  Ad- 
ministrations, i  454,  says  that  a  court  of  equi- 
ty will  specifically  enforce  a  contract  to  exe- 
cute a  will  after  a  certain  tenor,  when  the 
contract  is  founded  upon  valuable  considera- 
tion. It  does  this  by  fastening  a  trust  upon 
the  estate  of  the  deceased,  not  only  where 
laud  is  concerned,  but  personalty  as  well. 
One  of  the  earliest  cases — Dufour  v.  Perira, 
Dickens,  420  (A.  D;  1769) — was  a  case  of 
trust  declared  In  respect  of  certain  bequests, 
in  a  note  to  section  746  of  Pom.  ESq.  Jur.,  the 
author  quotes  with  approval  what  is  said  In 
Bolman  v.  Overall,  80  Ala.  451,  2  South.  624, 
60  Am.  Kep.  107.  The  passage  is  entirely  ap- 
posite to  the  present  situation. 

"All  the  authorities  agree  that  one  may,  for  a 

valuable  consideration,  renounce  the  absolute 
power  to  dispose  of  his  estate  at  pleasure,  and 
bind  himself  by  contract  to  dispose  of  hia  prop- 
erty by  will  to  a  particular  person,  and  that 
such  contract  may  be  enforced  after  his  decease, 
either  by  an  action  against  the  personal  repre- 
sentative, or,  in  a  proper  case,  by  a  bill  in  the 
nature  of  specific  performance  agaiast  bis  bein, 
devisees,  or  personal  representatives." 

Tills  is  the  doctrine  of  Jolmsoa  ▼.  Hubbell, 
10  N.  J.  Eq.  832,  66  Am.  Dec  773,  a  leading 
case  on  the  subject  An  action  at  law  for 
breach  of  contract  would  here  do  vlcAence  to 
the  intentions  of  both  parties,  and  would  not 
do  justice  to  either.  The  equitable  remedy 
would  effectuate  the  very  trust  intended.  A 
promise,  based  on  valuable  consideratian,  to 
do  a  lawful  act  wiU,  If  broken,  generally,  If 
not  always,  give  rise  to  some  form  of  action, 
^e  only  question  will  be  whether  the  relief 
to  be  accorded  shall  be  legal  or  equitable.  I 
take  it  that  tf  the  promise  made  by  A.  I>e 
merely  amply  to  provide  for  B.  by  wiU,  B., 
U  the  promise  be  broken,  would  have  to  sue 
at  law  for  damages;  but  if  the  promise  be 
to  give  a  particular  tiling  l>y  will — at  least 
such  a  thing  as  cannot  be  adequately  com- 
pensated for  by  damage? — and  the  statute  ot 
frauds  do  not  prevent  (Maddison  v.  Alderson 
{1883]  8  APP-  Cas.),  B,  may  sue  in  equity.  As 
a  trust  was  intended — a  trust  that  would  be 
defeated,  it  damages  were  given — the  ques- 
tion reduces  itself  to  this: 

[2]  Was  the  contract  sufficiently  spedflc  to 
warrant  equitable  relief?  In  the  flrst  in- 
stance, perhaps,  it  vaa  not  As  made  just 
before  the  time  of  the.  transfer  in  August 
1911,  it  was,  merely,  "amply  to  provide." 
But  when  Luman  made  the  transfer,  and 
when  Mrs.  Dean  executed  her  will  and  spe- 
dflcally  defined,  the  ample  provision,  in  terms 


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IMFBOTED  BOIXiDINO  &  LOAN  ASS'N  v.  LARKIN 


1043 


satisfactory  to  both,  the  contract  was  com- 
pletely executed  on  one  side  and  completely 
defined  on  the  other,  and  could,  therefore, 
only  be  varied  by  the  consent  of  both.  If 
she  had  made  the  will  contemporaneously 
with  the  transfer  of  the  property  and  because 
of  the  transfer.  It  is  clear  under  the  authori- 
ties tliat  a  contractual  obligation  would  have 
been  imposed  upon  her.  Because  she  waited 
awhile,  the  obligation  all  the  time  resting  ui>- 
on  her  to  do  the  very  thing  which  she  did,  it 
does  not  seem  to  me  that  the  efFect  of  the 
transaction,  looked  at  as  one  whole,  is  dif- 
ferent. 

[3]  If  it  be  ar^gued  that  the  agreement  at 
the  time  of  the  transfer  was  not  complete  in 
all  its  parts,  that  the  ample  provision  was 
not  specifically  defined,  that  after  having 
once  defined  it  she  might,  within  the  limits 
of  her  contractual  obligation,  still  redefine  it, 
if  She  made  it  ample,  the  answer  is  that,  in 
view  of  her  circumstances  and  of  what  she 
bad  received,  the  second  provision  was  not 
ample,  and  so  the  change  was  contrary  to 
her  obligation.  But,  further,  it  must  be  re- 
membered that  Mrs.  Dean  is  dead,  and  com- 
plainant under  a  disability  fully  to  testify. 
In  view  of  the  evidence,  I  think  it  a  fair  in- 
ference that  the  kind  of  provision  was  from 
the  beginning  understood  between  them,  and 
that  the  will  did  no  more  than  embody  the 
imderstanding  in  a  writing.  It  would  be  too 
much  to  say  that,  because  the  papers  relating 
to  the  two  parts  of  this  transaction  were  ex- 
ecuted at  different  times,  we  are  to  apply  a 
rule  different  from  that  that  would  have  gov- 
erned, bad  they  been  executed  at  tlie  same 
time.  The  different  parts  of  a  complex  trans- 
action are  frequently  reduced  to  writing  at 
different  times;  but  this  does  not  prevent 
their  being  considered  as  one  whole. 

[4-]  Again,  it  is  argued  that,  because  the 
provision  was  contained  in  an  instrument  in 
its  nature  revocable,  it  was  subject  to  change 
at  the  will  or  caprice  of  ttie  testatrix.  The 
will  was,  of  course,  revocable ;  but  the  agree- 
ment to  make  the  provision,  being  founded 
on  valuable  consideration,  was  not.  It  was 
the  duty  of  testatrix  to  embody  it  in  any 
wlU  she  thought  fit  to  make. 

[t]  There  is  an  unfortunate  complication. 
Liuman  sued  the  estate  of  Mr.  Dean  while 
this  suit  was  progressing,  and  by  the  verdict 
of  a  Jury  recovered,  not  only  wages  for  serv- 
ices rendered  in  the  Dean  home,  but  also  the 
amount  of  a  check  for  $1,342,  part  of  Luman 
Warren's  estate,  that  under  his  nephew's  deed 
of  transfer  passed  to  his  aunt  The  fact  that 
it  was  handed  over  to  Mr.  Dean — ^it  must  be 
assumed  with  his  wife's  consent  and  as  her 
agent — did  not  make  it  part  of  Mr.  Dean's 
estate.  If  Luman,  therefore,  claims  the 
money,  he  to  that  extent  endeavors  to  re- 
pudiate his  transfer.  He  cannot  have  the 
consideration  on  which  his  aunt's  agreement 
was  based,  and  at  the  same  time  claim  the 


benefit  of  the  trust  constituted  for  his  bene- 
fit. Counsel  have  not  discussed  this  phase 
of  the  controversy,  and  I  will  bear  them 
on  it. 


(8S  N.  J.  Eq.  S2) 
IMPHOVED  BUILDING  ft  LOAN  ASS'N  T. 
LARKIN  et  aL     (No.  41/253.) 

(Court  of  Chancery  of  New  Jersey.     Aug.  2, 
1917.) 

1.  MECEAmos*  Liens  «=9l&5  — Pbioretiks— 

CONTBACT. 

To  protect  property  against  mechanics'  liens 
subsequently  filed,  a  buildmg  contract  filed  must 
be  between  parties  who  in  truth,  and  not  in 
form  merely,  hold  to  each  other  the  relation  of 
contracting  parties. 

2.  MOBTOAOES    «=»463— FOEECIOSUBB— Evi- 
DENCX. 

In  a  suit  to  foredose  a  mortgage  on  land 
apon  which  a  building  was  erected,  evidence  held 
to  show  that  the  building  contract,  which  was 
duly  filed,  was  not  in  truth  between  parties  hold- 
ing to  each  other  the  relation  of  contracting 
parties,  and  hence  such  contract  did  not  protect 
the  property  against  mechanics'  liens. 

3.  Equity  9=>427(1)  —  Dbcbeb  —  CoNFORurrv 
TO  Pleadings. 

Ab  a  decree  with  reference  to  matters  out- 
side of  the  issues  raised  would  be  void,  even  in 
collateral  proceedings,  such  matters  should  not 
be  disposed  of. 

4.  MoBTOAOEs  «=3l51(3)— Mechanics'  Liens 

.  p  pj OBITIE B 

Where  mortgages,  though  preceding  lien 
claims,  were  made  after  building  was  commenc- 
ed, the  mortgagees,  the  property  not  being  pro- 
tected from  lien  claims  by  contract  filed,  must, 
in  order  to  obtain  priority  under  Mechanic's 
Lien  Act,  f  16  (3  Comp.  St.  1910,  p.  3303),  shpw 
that  the  moneys  secured  were  actually  advanced 
by  them  and  applied  to  the  erection  of  the  build- 
ing, and  mere  proof  of  payment  to  the  mortgagor 
is  insufiicient. 

6.  MoBTQAOES  «s»151(3)— Mechanics'  Lisnb 
— Pbiobitt. 

Where  money  obtained  on  a  mortgage  given 
after  building  operations  hod  commenced  was 
used  to  discharge  a  prior  incumbrance  on  the 
land,  the  mortgagee  is  not,  as  to  the  amounts 
used  to  defray  the  incumbrance,  entitled  to  pri- 
ority over  lien  claimants  on  the  theory  that  such 
sum  was  devoted  to  building  purposes ;  land  be- 
ing distinguished  in  Mechanic's  Lien  Act,  S  15, 
from  a  building. 

6.  Vrndob  and  Pdbchaskb  «=»266(8)— Ven- 
dob's  Lien— Loss. 

A  vendor  who  takes  a  mortgage  for  unpaid 
purchase  money  loses  his  vendor's  lien. 

7.  Mechanics'    Liens    <S=198  —  Mortoaqes 
«ss>151(l)— Liens— Pbiokity. 

Hie  vendor,  who  took  a  mortgage  for  the 
unpaid  purchase  money,  agreed  through  her  at- 
torney to  release  such  mortgage  to  enable  an- 
other mortgagee  to  have  a  first  lien.  The  ven- 
dor's mortgage  was  released,  but  the  purchaser 
failed  to  pay  the  entire  sum  due  the  vendor. 
Thereupon  a  deed  reconveying  the  property  to 
the  vendor  to  secure  the  unpaid  purchase  money 
was  executed.  Held  that,  thougn  the  deed  was 
antedated,  yet  as  it  did  not  take  effect  until 
delivery,  the  lien  of  the  vendor  by  reason  of  her 
first  mortgage  was  waived,  and  her  rights  un- 
der the  deed  of  reconveyance  became  junior  to 
those  of  the  mortgagee  and  other  existing  lien- 
holders. 

8.  Deeds  «=»108—Deijvebt— Effect. 

A  deed  takes  effect  only  from  the  time  of  de- 
livery. 


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0.  Mechanics'  Lienb  9s»198  —  Pbiobitixs — 
Patments. 
Payments  of  freight  and  for  a  -watehman  for 
a  building  in  the  process  of  construction,  made 
out  of  the  moneys  furnished  by  a  mortgagee, 
win,  under  Mechanic's  Lien  Act,  {  15,  where  the 
watchman  was  necessary,  take  priority  to  me- 
chanics' liens. 

10.    MoBTGAaKS    «=>414  — POKBCtOSUBB  — De- 
I-AT. 

Foreclosure  of  a  mortgage  will  not  be  delay- 
ed, though  the  status  of  the  claim  of  one  of  the 
parties  to  the  suit  remains  to  be  determined 
by  an  action  at  law. 

Bill  by  the  Improved  Building  &  Loon  As- 
sociation against  Clara  H.  Larkin  and  others. 
Hearing  on  bill.    Decree  for  complainant. 

Thomas  J.  Butler,  ol  Newark,  for  com- 
plainant Mr.  Stelnhardt  and  Mr.  Clymer,  of 
Newark,  for  defendants  Katchen  &  Rablno- 
vija.  Mr.  Bianchl,  of  Orange,  for  defendant 
Latin-American  Const  Co.  and  others.  Perry 
&  Grofiso,  of  Orange,  for  defendants  Larkin 
and  others.  Mr.  Bernard,  of  Newark,  for  de- 
fendant Dorfman.  Bllder  &  Bllder,  of  New- 
ark, for  defendant  Lum.  Mr.  Hinrichsen,  of 
Newark,  for  defendants  Cook  &  Genung. 

STEVENS,  V.  C.  This  is  a  suit  to  fore- 
close a  mortgage.  The  defendants  are  sub- 
sequent  mortgagees  and  lien  claimants. 

[1,2]  The  first  question  Is  whether  the 
filing  of  the  building  contract  dated  June 
24,  1914,  made  by  John  T.  Kelly,  with  a 
partnership  known  as  the  Latin-American 
Construction  Company,  operates  to  protect 
the  property  buUt  upon  against  mechanic's 
lien  claims  filed  subsequently.  The  Insistence 
Is  that  the  contract  was  made  between  pax- 
ties  80  related  as  to  bring  it  within  the  prin- 
ciple of  Young  V.  Wilson,  44  N.  J.  Law,  157. 
This  case  holds  that  the  agreement,  the  filing 
of  which  protects  ajgalnst  the  lien  of  other 
creditors,  must  be  between  parties  who  in 
verity,  and  not  in  form  merely,  hold  toward 
each  other  the  relation  of  contracting  parties. 

In  April,  1914,  David  W.  Dorfman,  Nich- 
olas A.  Norelli,  and  Danld  J.  Scrocco  formed 
a  partnership,  to  make  and  perform  contracts 
far  constructing  buildings  of  every  sort. 
They  filed  with  the  county  clerk  a  certificate 
of  partnership,  which  bears  date  April  11, 
1914,  and  which  states  their  business  name 
to  be  "the  Letln-Amerlcan  Construction  Com- 
pany." Dorfman  and  NorelU  were  ardii- 
tects;  Scrocco  was  a  clerk.  On  June  6,  1914, 
John  T.  Kelly  entered  Into  a  written  agree- 
ment with  J.  Frank  Larkin,  husband  of  Clara 
H.  Larkin,  to  purchase,  for  ^,000,  the  land 
covered  by  complainant's  mortgage.  KeUy 
seems  to  have  been  a  business  acquaintance 
of  the  partners,  and  so  impecunious  that  he 
was  unable  to  pay  any  money  whatever  at 
the  time  he  agreed  to  buy.  He  gave  instead 
bis  note  for  $50,  indorsed  by  Norelli.  evi- 
dently the  agreement  that  he  made  with  Mrs. 
Larkin  was  intended  to  promote  the  plans 
of  the  partners.  It  having  come  to  their 
knowledge  that  there  were  judgments  against 


Kelly,  the  deed  was,  with  his  consent  made 
to  Dorfman,  who  gave  a  mortgage  of  ?2,000 
to  secure  the  entire  consideration  money. 
This  deed  bears  date  June  6,  1914,  but  it  was 
not  acknowledged  or  delivered  until  the  fol- 
lowing August 

Notwithstanding  the  fact  that  Kelly  was 
entirely  destitute  of  means,  on  June  27th, 
he  entered  into  a  building  contract  with  the 
Latin-American  Construction  Company,  by 
the  terms  of  which  he  agreed  to  pay  ?28,000 
for  the  erection  of  a  large  tenement  house  on 
the  property  In  question.  This  contract  was 
filed  June  2,  1914,  and  work  was  begun  un- 
der it  before  any  deed  was  given.  Evidently 
the  cost  of  construction  was  to  be  provided 
for  by  the  Construction  Company,  itself  i>os- 
sessed  of  very  little  money,  and  by  loans  to 
be  obtained  during  the  prog^ress  of  the  work. 
Up  to  August  6,  1914,  the  owner,  using  that 
word  in  the  sense  of  the  Mechanic's  Lien  Act, 
appeared  to  be  Kelly,  and  the  work  was  ap- 
parently being  done  for  him.  1  say  apparent- 
ly, because  it  Is  evident  that  Kelly's  interest 
was  of  the  slightest  It  was  so  slight  that, 
when  Dorfman  discovered  the  judgments, 
Kelly,  at  the  request  of  the  partners,  assign- 
ed to  him,  without  consideration,  his  interest 
both  in  the  land  and  in  the  contract.  But 
this  created  a  complication.  Dorfman,  as 
a  member  of  the  partnership,  became  both, 
builder  and  owner,  and  it  was  feared  by  its 
counsel  that  the  effect  of  the  filing  of  the 
contract  would  be  nullified.  Thereupon  the 
company,  so  called,  which  seems  to  have 
proceeded  as  if  it  were  a  corporation,  passed 
a  resolution  stating  an  agreement  that  Inas- 
much as  Kelly  had  assigned  his  rights  to 
Dorfman,  Dorfman  would  resign  his  member- 
ship and  a  new  construction  contract  be  made 
between  the  company  and  Dorfman,  and  (I 
quote  its  language)  "that  the  amount  shall  be 
the  same  as  the  one  with  Mr.  John  T.  Kelly." 

At  or  about  the  time  of  the  passage  of  this 
resolution  Dorfman  took  an  assi,gnment  of 
the  Kelly  contract,  and  joined  in  the  execu- 
tion of  a  new  contract  between  himself  and 
the  remaining  partners,  Norelli  and  Scrocco. 
This  was  an  exact  copy  of  the  other,  except 
its  date.  It  was  never  filed.  NorelU  says: 
"I  kept  to  the  KeUy  contract,  the  original 
on  file."  It  is  not  at  all  unlikely  that  the 
parties  at  first  regarded  the  second  contract 
as  the  one  to  be  deemed  in  force,  and  then, 
in  view  of  the  difficulties  of  the  situation, 
thei  first ;  for  It  appears  that  they  filed  the 
assignment  of  the  first  contract  three  monUis 
after  they  obtained  it  Obviously  the  persons 
from  whom  they  hoped  to  borrow  money 
would  be  likely  to  Insist  that  a  boilding  con- 
tract should  be  on  file.  A  striking  illustra- 
tion of  how  lightly  the  obligations  of  the 
contract  were  held  appears  In  the  case  of 
Joseph  Del  a  Fera.  The  Kelly  contract  in- 
cluded the  carpenter  work.  But  when  it 
was  sought  to  subcontract  this  work,  Del  a 
Fera,   refusing  to  take  a  subcontract  from 


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IMPROVED  BUILDING  ft  LOAN  ASS'N  v.  LARKIN 


1045 


the  construction  company,  was  given  a  con- 
tract directly  with  the  owner,  Dorfman.  Un- 
der these  circumstances  It  seems  to  me  to 
be  the  unavoidable  Inference  that  the  par- 
ties were  contracting  parties  in  form  mere- 
ly ;  that  the  case  falls  within  the  principle  of 
Young  V.  Wilson,  supra,  and  that  the  contract 
does  not  protect  the  land  against  the  liens  of 
creditors. 

The  creditors*  liens  mentioned  in  the  bill 
are  the  following: 

Aug-   6, 1914.    Mortgage  to  Mrs.  I^rkln....  I  2,000  00 
••     U,  1914.  ••  "   complainant    ...    18.000  00 

Oct.  SO.  1114.  "         "Wsldemmr 

Dortman   5.0(0  CO 

Ma7  13. 191S.  "  -   Ajnorose    1.000  00 

Aug.  26, 1914.  Contract  of  lannacono  A 
Ambola. 

April  (,  1915.    Attachment  by   Cobk   A   Ge- 

nung  (or  400  00 

Dec.  31, 1914.  Judgment  o(  Da  Stelano, 
agent  David  W.  Dortman 
for    84908 

June  10, 1915.    Meetaanlc's    lien   b7   Del     m 

Pera  for  9,150  00 

Jona  24, 1915.    Hecbanic's  lien  by  Katcben 

ft   Rablnovltz   1.005  00 

**    18,1915.    Uecbantc'8  Uen  by  Nicholas 

Norelll    1,«95  0« 

Aug.   4, 1915.    Mechanic'*  lien  br  Amoroso     1,823  00 
"    11,1916.    Mechanic's  lien  by  Person..         160  UO 

SepLSO,  1915.    Mechanic's  lien   by   Katchen 

ft  Rablnovitz  165  00 

Oct.     8.1916.    Mechanic's  lien  by  Shapiro..        600  00 
"    15,1916.    Mechanic's    lien    by    Latin- 
American  Construction 
Company    18.57100 

Fab.  14, 1916.    Mechanic's   lien  by  Amoross     1,825  00 

[3]  The  complainant  has  taken  a  decree  pro 
confesso  against  David  W.  Dorfman,  Frank 
Larkln,  Ernest  Lum,  as  trustee  of  the  Orange 
Supply  Company,  Kelly,  De  Stefano,  Cook  & 
Genung  Company,  Person,  Shapiro,  and  one 
or  two  of  the  other  defendants  who  appear 
subsequently  to  have  answered.  Most  of  the 
answers  are  drawn  without  regard  to  the 
fundamental  rule  of  equity  pleading  that  he 
who  answers  must  state  his  case  and  answer 
fully.  I  shall  not,  in  the  very  complicated 
situation  presented  by  the  proofs,  go  outside 
of  the  issues  raised.  The  court  can  hardly 
be  expected  to  decide  matters  not  set  up  In 
the  pleadings,  when  a  decree  made  in  rela- 
tion to  such  matters  would  be  void,  even  in  a 
collateral  proceeding.  Reynolds  v.  Stockton, 
43  N.  J.  Eq.  211,  10  Atl.  385,  3  Am.  St.  Rep. 
305,  affirmed  140  U.  S.  254,  11  Sup.  Ct.  773, 
35  L.  Ed.  464. 

[4]  While  the  mortgages  precede  the  lien 
claims  in  point  of  date,  they  are  attacked  on 
the  ground  that  the  money  lent  thereon,  or 
part  of  it,  uid  not  go  into  the  building.  As  I 
have  found  that  the  contract  made  between 
Kelly  and  the  Latin-American  Construction 
Company  of  itself  affords  no  protection 
against  liens,  the  mortgages  must  be  dealt 
with  as  provided  for  in  section  15  of  ttie  Me- 
chanic's Lien  Act.  They  were  all  made  after 
the  building  was  commenced.  The  mort- 
gagees must  therefore  prove  that  the  moneys 
secured  were  actually  advanced  and  paid  by 
them  and  applied  to  the  erection  of  the  build- 
ing built  upon  the  land  mortgaged.    Since 


the  decision  of  the  Court  of  Errors  in  Frank- 
lin Soc.  V.  Thornton,  85  N.  J.  Eq.  525,  96  Ati 
922.  and  of  the  Supreme  Court  in  Young  v. 
Halght,  69  N.  J.  Law,  453,  55  AtL  100,  theie 
can  be  no  doubt  as  to  the  rule.  Says  tium- 
mere,  C.  J.,  in  the  latter  case: 

"The  only  test  is  whether  the  mon^  has  been 
loaned  for  the  erection  of  •  *  •  the  building 
and  has  been  actually  applied  to  that  purpose." 

If  latwr  or  material  have  gone  into  the 
building,  money  lent  to  pay  for  such  labor  or 
material  would,  of  course,  be  within  the  rule, 
and  equally,  it  seems  to  me,  would  be  money 
lent  to  pay  a  contractor  or  subcontractor  to 
whom,  under  his  contract,  payment  is  due  for 
work  actually  done.  But  money  paid  to  a 
person  charged  with  the  duty  of  paying  such 
contractor  does  not  come  within  the  rule,  un- 
less it  be  further  proved  that  such  money  was 
actually  paid  over.  In  the  case  in  hand, 
proof  of  payment  by  complainant  to  David 
Dorfman,  or  to  Norelll,  or  his  partner  Scroc- 
co,  would  not  suffice.  The  proof  must  go  fur- 
ther; it  must  show  that  they  applied  it  to 
the  erection  of  the  building,  by  paying  it  In 
one  of  the  ways  I  have  mentioned. 

[E]  The  question  then  is:  Were  complain- 
aut's  and  Dorf man's  moneys  so  applied?  As 
far  as  complainant's  mortgage  is  concerned, 
I  do  not  find  in  the  briefs  banded  to  me  any 
insistence  that  it  was  not,  except  in  that  of 
ICatcben  &  Rablnovitz.  The  answers  or  no- 
tices of  Amoroee,  Wald«nar  Dorfman,  Lum, 
Norelll,  and  Cook  &  Genung  expressly  admit 
the  priority  of  the  lien.  Under  these  circum- 
stances the  complainant  is  entitled  to  have 
the  full  amount  due  on  his  mortgage  paid  to 
him  before  any  other  liens  are  paid,  except 
the  Uen  of  Katchen  &  Rablnovltz,  as  to  whom 
he  must  show  that  the  money  went  into  the 
erection  of  the  building.  The  principal  con- 
ten  tion  that  Katchen  &  Rablnovitz  make  OQ 
this  head  is  that  $1,200  of  the  money  lent 
went  to  pay  Mrs.  Larkln  for  the  purchase 
price  of  her  land.  The  facts  are  these:  Mrs. 
Larkln,  as  has  been  already  stated,  deeded 
the  property  to  David  Dorfman  in  August, 
and  took  a  mortgage  of  $2,000  to  secure  the 
price.  Dorfman  applied  to  complainant  for 
a  loan,  which  was  granted  only  on  condition 
that  it  should  have  a  first  lien.  Mrs.  Lar- 
kin's  solicitor,  Mr.  Grosso,  says: 

"Mr.  Dorfman,  and  Mr.  Norelll,  and  Mr. 
Giordano,  their  attorney,  called  on  me  frequent- 
ly, and  asked  me  to  cancel  the  mortgage,  and  I 
told  them  I  wanted  some  money.  However,  I 
was  assured  by  Mr.  Norelll,  also  by  Mr.  Dorf- 
man, that  if  I  would  cancel  that  mortgage  they 
would  pay  me  as  soon  as  they  got  the  first  pay- 
ment from  the  Building  &  Loan  Association." 

It  was  canceled  on  December  3d.  On  De- 
cember 5th  Mr.  Butler,  representing  complain- 
ant, hamded  to  Mr.  Norelll,  representing  the 
Latin-American  Construction  Company,  a 
check  for  $3,312.80.  As  soon  as  Mr.  Grosso 
heard  of  it,  he  went  to  Norelli's  office,  and, 
on  being  told  by  Norelll  that  he  was  unable 
to  give  the  full  amount,  accepted  a  check, 
dated  December  7th,  for  $1,200,  and  took  a 


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101  ATLANTIC  REPORTER 


(X.J. 


deed  to  Mn.  Larktn,  antedated  November 
24tli,  reconveylng  the  prt^erty,  to  secure  the 
babuice  owing,  $860.  The  money  was  not  ap- 
plied to  the  erection  of  the  building,  unless 
the  word  ''building"  be  stretched  to  include 
'^nd."  All  through  the  Mechanic's  Uen 
Act,  "ItaaA"  and  "building"  are  contradistin- 
guished. In  the  section  under  consideration, 
I  think  the  word  "building"  is  used  in  its  or- 
dinary sense,  and  does  not  extend  to  the  land 
built  upon. 

[I]  I  will  next  consider  the  position  of  Mrs. 
TiWrkln.  Under  the  course  of  decision  In  this 
state  there  can  be  no  doubt  but  that  lier 
mortgage,  being  given  to  secure  purchase 
money,  was  prior  to  the  mechanics'  liens. 
The  real  question  Is  whether  she  lost  her  lien 
when  she  surrendered  her  mortgage  for  can- 
cellaflon.  She  did  so,  unless  her  vendor's 
lien  continued.  The  law  of  this  state  is  that 
the  giving  of  a  mortgage  for  purchase  mon- 
ey Is  a  waiver  of  the  vendor's  lien.  In  the 
note  to  the  leading  case  of  Macreath  v.  Sym- 
rnoBB,  1  Lead.  Cas.  in  Eq.  364  (3d  Am.  Ed.),  it 
Is  said: 

"The  lien  will  be  considered  as  waived  when- 
ever any  distinct  and  independent  security  is 
takeo',  whetlier  by  mortgage  on  other  laud,  or 
pledge  of  goods,  or  personal  responsibUity  of  a 
third  person,  and  also  when  a  security  is  taken 
upon  the  land,  either  for  the  whole  or  a  part 
of  the  unpaid  purchase  money,  unless  there  is 
an  express  agreement  that  the  implied  lien  aliall 
be  retained." 

Mr.  Pomeroy  (Eq.  Jnr.  vdL  3,  i  1252)  says 
"The  securities  which  ordinarily  produce  this 

effect  are  the  grantee's  mortgage  on  the  very 

land  conveyed,"  etc. 

In  Acton  V.  Waddlngton,  46  N.  J.  Eq.  19, 
18  AU.  356,  affirmed  46  N.  J.  Eq.  611,  22  Aa 
66,  Chancellor  Runyon  said: 

"The  lien  will  be  considered  as  waived  when- 
ever any  distinct  and  independent  security  is 
taken,  such  as  a  mortgage  on  the  land,  or  pledge 
of  things,  or  personal  responsibility  of  third 
persons,  and  the  like." 

[7, 1]  Such  being  the  rule  of  law,  when 
Mrs.  Larkin  took  her  mortgage  for  the  price, 
she  lost  her  vendor's  lien,  and  what  we  have 
to  deal  with  is  the  mortgage  lien,  and  not 
the  vendor's  lien.  Now,  Mrs.  Larkin,  at  the 
solicitation  of  Dorfman  or  the  Construction 
Company,  surrendered  this  lien.  In  order  that 
the  lien  of  complainant's  mortgage  might  at- 
tadi  upon  the  land  as  a  first  lien.  She  did 
so,  as  far  as  appears,  without  reservation  or 
limitation,  and  without  stipulating  for  any 
other  lien.  Mr.  Grosso  was  content  to  rely 
upon  the  representations  that  Dorfman,  No- 
relll,  and  their  attorney,  Mr.  Giordano,  made 
to  him.    He  says: 

"I  was  assured  by  Mr.  Norelli  and  their  at- 
torney, Mr.  Giordano,  that,  if  I  would  cancel 
that  mortgage,  they  would  pay  me  as  soon  as 
they  ^ot  the  first  payment  from  the  Building 
Association." 

The  mortgage  having  been  surrendered 
and  canceled,  it  seems  to  me  necessarily  to 
follow  that  existing  liens  upon  the  property 
fastened  themselves  upon  Uie  mortgage  es- 


tate thus  merged  In  the  equity  of  redemp- 
tion. If  complainant's  lien  attached,  so  did 
the  others.  No  subsequent  act  of  the  parties 
could  revive  the  mortgage  lien  of  Mrs.  Lar- 
kin, so  as  to  give  it  precedence.  T*e  ante- 
dating of  the  deed  could  not  have  that  ef- 
fect, for  a  deed  takes  effect  from  delivery, 
and  the  delivery,  as  averred  In  the  answer 
and  shown  by  the  evidence,  took  place  when 
the  note  for  $860  was  given  (December  7th). 
I  reluctantly  conclude  that  Mrs.  Larkln's 
security  by  way  of  deed  must  give  way.  In 
point  of  priority,  not  only  to  complainant's 
mortgage,  but  to  Dorfman's  and  to  the  me- 
chanics' liens.  The  Amorose  mortgage  was 
not  proved. 

I  next  take  up  the  Waldemar  Dorfman 
mortgagfe  Counsel  for  Waldemar  Dorfman's 
representatives  has  prepared  a  statemott 
claiming  that  payments  amounting  to  $4,401.- 
61,  made  on  Its  security,  went  into  the  erec- 
tion of  the  building.  Other  payments, 
amounting  to  about  $475,  went,  he  admits,  to 
the  partners,  and  cannot  be  traced  Into  the 
building.  If  these  figures  are  not  accepted 
as  correct  by  other  counsel,  there  vrlll  have 
to  be  a  reference  to  a  special  master  to  state 
an  account 

[9]  As  to  the  payments  for  freight  and 
those  made  to  the  watchman,  the  case  of 
Davis  V.  Mial,  86  N.  J.  Law,  167,  90  AtL 
315,  controls.  If  a  watchman  was  reasona- 
bly necessary  for  the  protection  of  the  build- 
ing daring  construction  the  money  paid  fw 
his  wages  went  Into  the  erection.  The  sal- 
aries paid  Norelli  and  Scrocco,  so  far  as 
they  were  comi)ensatlon  for  work  done  on 
the  building,  will  be  allowed. 

The  lien  claim  of  Del  a  Fera  was  reduced 
to  Judgment  In  a  suit  at  law  In  the  Essex 
circuit  court.  In  which  Del  a  Fera  was  plain- 
tiff, and  David  W.  Dorfman,  Clara  H.  Lar- 
kin, Waldemar  Dorfman,  and  Joseph  E.  Amo- 
rose were  defendants.  The  Judgment  was 
entered  May  24,  1916,  for  $3,407.44.  It  ad- 
Judges  that  the  lien  claim  is  prior  to  the 
mortgages  held  by  defendants  Dorfman  and 
Amorose.  This  Judgment,  being  subsequent 
to  the  alleged  waiver  of  priority,  must  «»- 
trol. 

The  Latin-American  Construction  Compa- 
ny's lien  claim  Is  based  upon  the  assump- 
tion that  the  contract  with  Kelly  was  valid. 
As  against  the  lien  claimants,  I  have  found 
that  it  was  not  That  company  must  there- 
fore be  postponed  to  the  mechanic's  lien 
claimants  who  have  appeared  and  proved 
their  claims.  I  do  not  find  in  the  briefs  that 
the  lien  claims  of  Amorose  and  Katchen  & 
Rabinovltz  are  disputed.  They  and  any  oth- 
er undisputed  claims  will  be  concurrent  liens, 
payable  in  accordance  with  section  28  of  the 
Mechanic's  Lien  Act 

[10]  Probably  when  the  property  comes  to 
be  sold — and  perhaps  it  may  be  desirable  to 
sell  at  once — other  equities,  dependent  upon 
the  amount  the  property  may  bring,  will 
have  to  be  adjosted.    Waldemar  Dorfman's 


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I^EHIOH  VALLKT  TRUST  CO.  ▼.  STRAUSS 


1047 


mortgage  Is  or  may  be  good  for  tbe  whole 
amount  against  David  Dortman.  Tbe  sta- 
ttu  of  tbe  Construction  Oxnpany's  claim 
against  Dorfman  may  be  different  from  its 
status  as  against  tbe  lloi  claimants.  It  Is 
stated  tbat  tbere  is  a  suit  pending  on  tbis 
claim.  If  80,  it  ougbt  to  be  prosecuted  to 
Judgment  The  question  of  tbe  amount  Dorf- 
man owes  tbe  company,  and  on  wbat  basis 
be  owes  it,  Is  a  legal  one.  Tbe  law  courts 
will  determine  whether  there  is  a  lien,  and 
bow  much,  lien  or  no  lien,  is  owing;  but 
tbe  pendency  of  tbis  suit  ougbt  not  to  delay 
the  sale. 

If  a  reference  be  necessary,  tbe  master  will 
report  upon  tbe  various  claims  on  tbe  prin- 
ciple here  laid  down,  and  upon  any  inciden- 
tal Questions  tbat  may  arise  in  tbe  course  of 
tbis  very  complicated  litigation. 


(2U  Pa.  383) 

LEHIGH  VALLEY  TRUST  CO.  t. 
STRAUSS. 

(Supreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  Appeal  and  Ekbob  <g=)731(2)  —  Assiow- 
KENTS  OF  Ebror— Sufficiency. 

Astagnments  of  error  as  to  the  findings  of 
fact  and  of  law  by  the  trial  judge  and  as  to 
his  answers  to  requests  for  findings  not  showing 
an  exception  to  the  findings  of  wnich  complaint 
is  made  are  defective. 

2.  Appeal  and  Ebbob  ®=>733— Assignments 
or  Ebbob— SuFnciENcy. 

An  assignment  of  error  to  an  interlocutory 
judgment,  merely  directing  judgment  to  be  en- 
tered if  no  exceptions  were  filed  within  30  days, 
showing  no  exception  to  the  order,  was  defective. 

3.  Apfeai.  and  Ebbob  ®s>73S— Assign uents 

OF  KbBOB— SUFFICIXNCT. 

An  assignment  ,o{  error  to  the  final  order  of 
tbe  court  dismissing  plaintiff's  exceptions  to  tbe 
findings  and  conclosionti,  not  setting  out  such 
exceptions,  was  defective  and  not  self-sustaining. 

4.  Appeal  and  Ij^bob  «s>733— Asbionmentb 
OF  ESerob— SurrioiENOY. 

An  assignment  of  error,  complaining  of 
error  in  entering  judgment  against  plaintiff  and 
in  favor  of  defendant  for  costs  without  (luoting 
the  judgment  verbatim,  was  defective. 

5.  Bills  and  Notes  €=>242  —  IIelation  of 

PABT1E8— OKIOINAL  PBOMIBOB  OB  SUBETY. 

Where  decedent  and  defendant  signed  an 
agreement  that  in  cbntrideration  of  the  discount- 
ing or  purchasing  of  certain  notes  they  would 
pay  the  notes  at  maturity,  or  on  their  renewals, 
and  decedent  deposited  stock  of  his  own  as  col- 
lateral security  which  was  sold  and  the  debt 
paid  off  from  tbe  proceeds  9nd  the  evidence 
showed  that  the  loan  was  in  fact  made  to  tbe 
decedent,  the  decedent  was  the  real  debtor,  and 
not  merely  a  cosurety  with  defendant. 

6.  Principal  and  Sdsety  ®=t>194(4)— Bights 

BETWEEN    SDBETIES— CoNTBIBUTIOJf. 

A  cosurety  cannot  be  called  upon  for  a  con- 
tribution for  the  benefit  of  the  other  surety  if 
be  agreed  to  become  cosurety  at  the  request 
and  for  the  benefit  of  the  other  surety. 

Appeal  from  Court  of  Ccnnmon  Pleas,  Le- 
high County. 

Assumpsit  by  tbe  I«blgb  Valley.  Trust 
Company,  admijsistrator  d.  U  n,  c.  t.  a.  of  tbe 
estate  of  David  R.  Kline,  deceased,  succeed- 
ing Frank  Jacobs,  executor,  against  Martin 


H.  Strauss,  to  enforce  contribution  by  a  co- 
surety. Judgment  for  defendant,  exceptions 
to  findings  of  fact  and  conclusions  of  law 
dismissed,  and  plaintiff  appeals.    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  POTTER,  FRAZEB,  and  WAL- 
LING, 33. 

M.  P.  Sbantz  and  Bntz  ft  Rupp,  all  of 
Allentown,  for  appellant.  Fred  B.  Gernerd, 
of  Allentown,  for  appellee. 

POTTER,  J.  [1]  Of  the  22  assignments  of 
error  filed  in  this  case,  the  first  19  are  to 
various  findings  of  fact  and  of  law  by  the 
trial  judge,  and  to  bis  answers  to  requests 
for  findings.  Not  one  of  tbe  assslgnments 
shows  an  exception  to  the  finding  of  which 
complaint  is  made;  therefore  they  are  all  de- 
fective. Streng  v.  Buck  Run  Coal  Co.,  241 
Pa.  560,  88  Atl.  796;  Brown  v.  Hughes,  244 
Pa.  397,  90  AU.  651 ;  Scull's  Est,  249  Pa.  57. 
94  AU.  470. 

[2]  Tbe  twentieth  assignment  is  to  an  in- 
terlocutory order  of  tbe  trial  judge,  which 
merely  directs  judgment  to  be  entered,  if  no 
exceptions  are  filed  within  30  days,  and  tbe 
record  shows  tbat  exceptions  were  filed.  The 
assignment  shows  no  exception  to  tbe  order 
of  which  complaint  is  made. 

[3]  The  twenty-first  assignment  la  to  tbe 
final  order  of  the  court  dismissing  plaintiff's 
exceptions  to  tbe  findings  and  conclusions  of 
tbe  Judge.  But  these  exceptions  are  not  set 
oat  in  the  assignment,  and  it  is  therefore  de- 
fective and  not  self-sustaining.  Prenatt  ▼. 
Messenger  Printing  Co.,  241  Pa.  267,  88  AtL 
430. 

[4]  The  twenty-second  assignment  raises 
the  question  whether  there  was  error  in  en- 
tering judgment  against  the  plaintiff  and  in 
favor  of  the  defendant  for  costs.  But  tbe  as- 
signment should  have  quoted  tbe  judgment 
verbatim. 

[9]  Tbe  action  was  assumpsit,  brought  by 
the  executor  of  E>avld  R.  KUne  against  Mar- 
tin H.  Strauss,  to  enforce  an  alleged  right  to 
contribution.  The  claim  was  based  upon 
a  paper  dated  May  27, 1908,  addressed  to  the 
Citizens'  Deposit  &  Trust  Company  of  Allen- 
town, signed  by  tbe  defendant  Martin  H. 
Strauss,  and  by  David  R.  Kline,  In  which 
they  agreed  that,  in  consideration  of  the  dis- 
counting or  purchasing  of  certain  notes  of 
the  Lehigh  Tungsten  Mining  ft  Milling  Com- 
pany, In  tbe  total  sum  of  $5,000,  they  would 
pay  said  notes,  at  maturity,  or  their  renew- 
als. On  the  same  day,  tbe  trnst  company  did 
purchase  a  note  of  the  milling  company  for 
$5,000,  and  at  the  time  Kline  turned  over  to 
Fred  H.  Uchtenwalner,  the.  treasurer  of  tbe 
trnst  company,  133  shares,  which  be  owned 
of  tbe  capital  stock  of  the  trust  company  to 
be  held  by  Lichtenwalner  individually,  to  se- 
cure the  payment  of  the  note,  or  its  renewal. 
The  note  was  renewed  from  time  to  time, 


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101  ATLANTIC  REPORTER 


(Pa. 


antn  on  December  S,  1912,  after  Kline's 
deatb,  a  note  for  $4,750,  payable  40  days  aft- 
er date,  was  given  to  tbe  trust  company  by 
tbe  milling  company,  In  renewal  of  the  orig- 
inal note,  and  made  and  Indorsed  In  the  same 
manner.  When  this  note  matured  Kline's 
stock  in  the  tmst  company,  which  was  In 
the  hands  of  the  treasurer,  was  sold,  and  tbe 
note  was  paid  out  of  the  proceeds.  This  suit 
was  then  brought  by  Kline's  executor  to  re- 
cover one-half  of  the  amount  paid  in  satisfac- 
tion of  the  note.  The  case  was  tried  without 
a  Jury,  and  the  trial  Judge  found  as  a  fact 
that  the  transaction  was  a  personal  loan  to 
KUne  by  the  trust  company,  and  that  he 
placed  his  own  stock  in  the  hands  of  the 
treasurer  to  be  held  In  trust  to  secure  pay- 
ment of  the  loan,  and  that  it  was  paid  out  of 
the  proceeds  of  the  sale  of  that  stock.  The 
trial  Judge  said: 

"Nowhere  does  it  appear  that  this  was  an  ob- 
ligation coming  within  tlie  terms  of  the  paper, 
dated  May  27,  1908;  in  fact  it  appears  that  this 
was  a  personal  obligation  of  decedent." 

[I]  Under  the  facts  as  found  by  tbe  conit 
below,  Kline  was  the  real  debtor,  and  was 
not  merely  a  cosurety  with  Strauss,  and  it 
was  properly  held  that  tbe  doctrine  of  con- 
tribution has  no  application.  As  between 
himself  and  the  trust  company,  Strauss  was, 
no  doubt,  liable,  but  there  is  no  reason  why 
he  should  be  called  upon  to  respond  for  the 
benefit  of  the  person  at  whose  request,  evi- 
dently, he  agreed  to  become  cosurety.  As  the 
record  stands  it  api>ears  merely  that  the  pro- 
ceeds of  Kline's  property  was  applied  to  the 
payment  of  his  own  debt  That  being  the 
case,  there  could,  of  course,  be  no  recovery 
here  against  the  defendant 

The  assignments  of  error  are  overruled, 
and  the  Judgment  Is  affirmed. 

(268  Pa.  338) 

PITTSBURGH  &  L.  E.  R.  CX).  ▼.  CUNTON 
IRON  &  STEEL  CO. 

(Sopreme  Court  of  Pennsylvania.     May  22, 
1917.) 

1.  Cabbiebs  ®=3l96— DEMTTBBAas— Aoenct  of 
Receiving  Railboao— Suiticierct  of  Evi- 
dence. 

In  an  action  by  a  railroad  against  a  steel 
company  to  recover  demurrage  charges  on  cars 
delivered  to  the  company,  defended  on  the 
ground  that  they  were  delivered  to  an  independ- 
ent railroad  company  on  an  interchange  track 
under  an  agreement  with  luch  company,  evi- 
dence held  to  show  that  such  railroad  company 
was  either  the  agent  or  part  of  the  plant  equip- 
ment bt  the  steel  company,  so  as  to  render  the 
company  liable  for  such  charges. 

2.  Cabbiebs  «s»196  —  Dkmttbbaoe  Chaboxb  — 
Reasonableness— Evidence. 

In  an  action  by  a  railroad  for  demurrage 
charges  of  $1  per  day  on  cars  ddivered  to  a 
steel  company  wherein  tbe  defendant  denied  tbe 
reasonableness  of  such  charges  but  offered  no  ev- 
idence that  they  were  unreasonable  and  where 
the  railroad  submitted  no  proof  of  their  reason- 
ableness, it  was  not  precluded  from  recovering, 
where  the  reasonableness  of  such  charges  was 
recognized  by  Act  May  24, 1907  (P.  L.  229). 


Appeal  from  Court  of  Common  Pleas,  Alle- 
gheny County. 

Assumpsit  to  recover  demurrage  charges 
by  tbe  Pittsburgh  &  Lake  Erie  Railroad 
Company  against  the  Clinton  Iron  &  Steel 
Company.  From  a  Judgment  on  a  directed 
verdict  for  plaintiff,  defendant  appeals.  Af- 
firmed. 

Tbe  facts  appear  in  the  following  opinion 
by  Evans,  J.,  in  the  court  of  common  pleas, 
sur  defendant's  motion  for  a  new  trial  and 
for  Judgment  n.  o.  v.: 

The  plaintiff  brought  suit  against  tbe  defend- 
ant to  recover  demurrage  charges  on  cars  de- 
livered loaded  to  the  defendant  and  received 
from  tbe  defendant  loaded  and  unloaded,  for  the 
tune  the  cars  were  detained  by  the  defendant 
over  the  free  time  allowed.  The  loaded  cars 
were  placed  by  the  railroad  company  upon  what 
was  Icnown  as  an  interchange  track  in  the  Point 
Bridge  Yard,  and  were  taken  by  tbe  South  Shore 
Railroad  Company  from  the  interchange  track 
to  the  track  on  which  they  were  unloaded,  and 
returned  by  the  South  Shore  Railroad  Company 
to  the  interchange  track  either  loaded  or  un- 
loaded. Originally  the  Clinton  Iron  &  Steel 
Company  had  switching  tracks  on  the  land  of 
the  furnace  company,  and  in  1892  the  South 
Shore  Railroad  Company  was  incorporated  and 
took  over  most  of  the  switching  tracks  and  en- 
larged to  some  extent  its  trackage,  all  of  which 
was  located  upon  the  land  of  the  Clinton  Iron 
&  Steel  Company,  a  part  of  which  land  was 
leased  by  the  steel  company  to  the  South  Shore 
Railroad  Company.  The  equipment  of  the  South 
Shore  Railroad  Company  consists  of  two  locomo- 
tives and  six  flat  cars.  The  flat  cars  are  used 
exclusively  in  the  plant  of  tbe  Clinton  Iron  & 
Steel  Company.  The  South  Shore  Railroad 
Company  does  all  of  the  Clinton  Iron  &  Steel 
Company's  intramill  service,  for  which  it  makes 
no  charge.  There  is  no  means  of  access  to  the 
South  Shore  Railroad  by  tbe  general  public,  and 
there  is  no  work  done  or  service  performed  by 
the  South  Shore  Railroad  Company  except  in 
connection  with  the  Clinton  Iron  &  Steel  Com- 
pany and  another  small  allied  works  on  the 
same  land  and  the  Pittsburgh  Sc  Lake  Erie  Rail- 
road Company  and  the  "Pan  Handle"  Railroad 
Company.  It  makes  no  reports  to  the  Interstate 
Commerce  Commission,  issues  no  bills  of  lading, 
and  in  no  way  conforms  to  the  requirements  «^ 
the  act  of  Congress  regulating  common  carriers. 
Its  superintendent,  who  controls  the  operation 
of  the  road,  has  also  charge  of  the  outside  labor 
of  the  Clinton  Iron  &  Sted  Company  in  connec- 
tion with  the  unloading  and  loading  of  cars 
shipped  in  and  out  and  m  the  intramill  service^ 
for  which  he  receives  no  compensation  from  tbe 
Clinton  Iron  &  Steel  Company.  The  employ^ 
of  the  South  Shore  Railroad  Company  and  the 
Clinton  Iron  &  Steel  Company  are  both  paid  at 
the  same  time  and  place  and  by  the  same  man. 
The  movement  of  cars  made  by  the  South  Shore 
Railroad  Companv  engines  are  noted  on  the  con- 
ductors' reports  headed  "Clinton  Iron  &  Steel 
Company."  The  stock  of  the  Clinton  Iron  & 
Steel  Company  during  all  this  period  was  owned 
as  follows:  F.  N.  Hoffstott  50  per  cent.;  J.  W. 
Friend  33%  per  cent.;  O.  W.  Friend  8%  per 
cent ;  and  T.  W.  Friend  8%  per  cent  C.  W. 
Friend  and  T.  W.  Friend  were  the  sons  of  J. 
W.  Friend.  The  South  Shore  Railroad  Company 
during  this  entire  period  was  owned  in  equal 
shares  by  J.  W.  Friend  and  F.  N.  Hoffstott  I 
should  qualify  the  ahove  statement  to  this  ex- 
tent, that  J.  W.  Friend  died  in  1909,  since  which 
time  his  estate  has  owned  the  interest  as  above. 

The  plaintiff  claims  demurrage  from  April  1, 
1907,  to  April  1,  1910,  under  the  following  tariff: 

"Rule  1.  (b)  When  cars  are  interchanged  with 


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minor  raQroads  or  indoatrlal  plants  who  perform 
their  own  switdilng  service  and  who  are  not 
members  of  a  car  service  association,  they  han- 
dling cars  for  themselves  or  for  other  parties, 
an  allowance  will  be  made  for  the  time  neces- 
sary in  their  switching  service  in  addition  to  the 
regular  time  allowed  for  loading  or  unloading  as 
per  paragraph  (a),  (which  provides  for  forty- 
«ight  hours  free  time)." 

"Cars  interchanged  with  minor  railroads,  etc., 
are  to  be  recorded  as  placed  at  the  first  8  a.  m. 
after  actual  placement  on  interchange  track 
*  *  *  the  free  time  to  be  calculated  from  the 
first  7  a.  m.  after  the  recorded  placement. 

"If  can  are  delivered  loaded  and  are  unloaded 
and  reloaded  and  returned  to  interchange  tracks 
loaded,  an  additional  forty-eight  (48)  hours  for 
loading  will  be  allowed. 

"All  cars  returned  to  interchange  tracks  by  4 
p.  m.  are  to  be  recorded  as  released  at  6  p.  m. 
-of  the  previous  day." 

From  April  1,  1910,  through  the  remainder  of 
the  time  involved  in  this  suit,  tariffs  were  in  ef- 
fect fixing  demurrage  charges,  providing  as  fol- 
lows: 

"Rule  3. — Computing  Time. — (f)  On  cars  to  he 
delivered  on  interchange  tracks  of  industrial 
plants  performing  thdr  own  switching  service 
time  will  be  computed  from  the  first  7  a.  m. 
following  actual  or  constructive  placement  on 
such  interchange  tracks  until  return  thereto." 

"Bule  4. — Notification. — (c)  Delivery  of  cars 
upon  private  or  industrial  interchange  tracks,  or 
written  notice  to  consignee  of  readiness  to  so  de- 
liver, will  constitute  notification  thereof  to  con- 
signee." 

[I]  There  was  no  dispute  as  to  the  facts  above 
stated.  The  defendant  claims  that  this  case 
should  have  gone  to  the  jury  for  the  reason  that 
the  plaintiff  in  its  statement  of  claim  alleges 
that  the  cars  were  delivered  on  the  interchange 
track  under  an  agreement  with  the  Clinton  Iron 
&  Steel  Company,  and  it  was  a  disputed  fact  as 
to  whether  there  was  such  an  agreement  with 
the  Clinton  Iron  jb  Steel  Company.  There  was 
DO  dispute  of  the  fact  that  the  cars  In  question 
were  placed  upon  the  interchange  track  and 
taken  from  the  interchange  track  by  the  South 
Shore  Railroad  Company,  and  that  this  had 
continued  for  a  great  many  years,  and  whether 
«r  not  this  was  done  under  an  agreement  with 
the  Clinton  Iron  &  Steel  Company  would  depend 
upon  the  question  whether  the  South  Shore 
Railroad  Company  in  accepting  the  delivery  of 
the  cars  on  the  interchange  track  was  the  agent 
of  the  Clinton  Iron  &  Steel  Company.  In  fact 
every  phase  of  this  case,  no  matter  how  you  view 
it,  raises  the  one  question.  Was  the  South 
Shore  Railroad  Company  an  independent  com- 
mon carrier,  or  was  it  merely  the  agent  or  plant 
equipment  of  the  Clinton  lion  &  Steel  Com- 
pany? 

[2]  Another  question  was  raised  by  counsel  on 
the  argument  for  motion  for  new  trial,  that  the 
reasonableness  of  the  demurrage  charges  was  de- 
nied by  the  defendant  in  its  aCBdavit  of  defense 
and  no  evidence  offered  by  the  plaintiff  as  to  the 
reasonableness  of  those  charges.  The  fact  as  to 
the  time  the  cars  were  detained  over  the  free 
time,  and  the  number  of  cars  so  detained,  are 
not  in  dispute;  they  are  admitted.  The  only 
possible  application  which  the  denial  of  reason- 
ableness could  have  to  this  case  is  that  a  dollar 
a  day  was  not  a  reasonable  charge.  T^e  act  of 
May  24,  1907  (P.  I..  229),  recognized  the  reason- 
ableness of  a  dollar  a  day  for  demurrage  charges 
and  48  hours  of  free  time,  and  in  the  absence  of 
any  evidence  on  the  part  of  the  defendant  that 
this  was  not  a  reasonable  charge,  there  was  no 
question  to  submit  to  the  jury. 

It  appears  to  me  that  this  case  is  identical 
with  the  case  of  the  Penna.  R.  R.  Co.  v.  Jose- 
phine Furnace  &  Coke  Co.,  247  Pa.  99,  93  Atl. 
22,  and  in  view  of  that  conclusion,  any  extended 


discussion  of  the  law  applicable  to  this  case  is 
unnecessary. 

Verdict  for  plaintiff  for  $1,931.45  by  direc- 
tion of  the  court  and  judgment  thereon.  De- 
fendant appealed. 

Argued  before  BROWN,  C.  J.,  and  MBS- 
TRBZAT,  P0TTE3B,  STEWART,  and 
MOSOHZrSKBB,  JJ. 

George  H.  Calvert,  Donald  Thompson, 
George  B,  Berger,  and  William  A.  Wilson, 
all  of  Pittsburgh,  for  appellant  miomas  Pat- 
terson, of  Pittsburgh,  for  appellee. 

FEB  CURIAM.  This  Judgment  Is  affirmed 
on  the  opinion  of  the  learned  court  below 
overruling  the  defendant's  motions  for  a  new 
trial  and  for  judgment  non  obstante  vere- 
dicto. 

(268  Pa.  3C6) 
MANTELL  T.  BCHARD  et  aL 

(Supreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  Appeal  and  Ebbob  ^=>3(%  —  Findino  — 
Review. 

In  an  action  on  a  note,  where,  notwithstand- 
ing strongly  persuasive  evidence  tliat  it  was  a 
forgery,  the  jury  found  that  it  was  not,  and  re- 
turned a  verdict  for  plaintiff,  the  Supreme 
Court,  on  appeal,  would  not  disturb  the  finding, 
where  no  complaint  was  made  of  the  court's 
refusal  to  grant  a  new  trial. 

2.  Evidence  *=»374(1)  —  Aonon  ow  Note  — ' 
Evidence. 

In  an  action  on  a  note,  where  the  defense 
was  that  the  note  was  a  forgery,  it  was  admis- 
sible in  evidence,  where  its  execution  was  testi- 
fied to  by  a  subscribing  witness. 

Appeal  from  Court  of  Common  Pleas,  Fay- 
ette County. 

Assumpsit  on  a  note  by  Frank  Mantell 
against  T.  B.  Echard  and  W.  A.  Bishop,  exec- 
utors of  the  last  will  of  Alexander  B.  Mor- 
ton, deceased.  Verdict  for  plaintiff  for  |6,- 
445,  and  judgment  thereon,  and  defetadanta 
appeaL    Affirmed. 

Argued  before  BROWN,  C.  J.,  and  MES- 
TREZAT,  STEWART,  FRAZBR,  and  WAL- 
LING, JJ. 

H.  L.  Robinson,  of  Unlontown,  for  appel- 
lants. Charles  A.  Tult,  of  Unlontown,  for 
appellee. 

PER  CURIAM.  [1]  The  defense  in  tbU 
case  was  that  Alexander  B.  Morton  had  not 
signed  the  note  upon  whldi  plaintiff  brought 
suit.  It  was  admitted  In  evidence  upon  the 
testimony  of  G.  Mantello,  that  he  had  signed 
It  as  a  subscribing  witness  to  Its  execution 
at  the  request  of  the  decedent.  In  the  face 
of  strongly  persuasive  evidence  that  the  note 
was  a  forgery,  the  jury  found  that  It  was 
not;  but  on  this  appeal  we  cannot  disturb 
their  finding,  because  no  complaint  is  made 
of  the  court's  refusal  to  grant  a  new  trial. 

[2]  The  single  assignment  of  error  is  to  the 
admission  of  the  note  In  evidence.  Under 
Mantello's  testimony,  its  execution  by  the  de- 


^ssFor  other  cases  see  same  topic  and  KBY-NUMBSR  In  all  Key-Numbered  DlgesU  and  Indexes 


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Va.  ATIiANTIC  RBPORTKB 


(Pa. 


ceased  was  for  the  Jnry,  and  to  them  the  single 
Issue  was  submitted  as  to  the  genuineness 
of  A.  B.  Morton's  signature.  In  the  light  of 
strong  evidence  submitted  by  the  defense,  fol- 
lowed by  a  charge  directing  the  attention  of 
the  jury  to  It,  the  Terdict  may  well  be  regard- 
ed as  an  untrue  finding;  but  there  is  no  as- 
signment asking  us  to  disturb  it,  and  the 
Judgment  on  it  must  therefore  be  affirmed. 
Judgment  affirmed. 

(2Sg  Pa.  ST8) 

ALEXANDER  r.  AMERICAN  EXPRESS  CX). 

(Supreme   Court    of   PennsylvaiiUu     May   22, 
1917.) 

1.  Municipal  Cobfobationb  *ss705(10)— In- 
jury ON  STREBT  —  CONTBIBUTORT  NCQ!.!- 
GKNCE. 

A  pedestrian  attempting  to  cross  a  street 
and  wfio  saw  and  avoided  a  motor  truck,  but 
in  doing  so  stepped  backward  in  front  of  the 
street  car  approacliinp^  from  the  opposite  direc- 
tion, and  whidi  be  did  not  see,  but  could  have 
avoided  had  he  looked,  was  guilty  of  contribu- 
tory negligence. 

2.  MUHiciFAL  Corporations  «s»706(S)— Op- 
BBA110N  or  Motor  Truck— Nkquoence— 
Etioencb. 

In  an  action  against  the  owner  of  an  auto- 
mobilj  track  to  recover  for  the  death  of  plain- 
tifl*8  husband,  who  in  avoiding  it  stepped  in 
front  of  a  street  car  and  was  killed,  evidence 
held  not  to  show  that  the  truck  was  bemg  driven 
reddesely  or  at  an  excessive  speed. 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Trespass  by  Eva  Alexander  against  the 
American  Express  Company,  to  recover  dam- 
ages for  the  death  of  plaintHTs  husband. 
Verdict  for  plaintiff  for  $3,500,  and  judg- 
ment thereon,  and  defendant  appeals.  Re- 
versed. 

Argued  before  BROWN,  a  J.,  and  MES- 
TREZAT,  POTTER,  STEWART,  and  FRAZ- 
ER,  JJ. 

John  Lewis  Evans  and  Thomas  De  Witt 
Cuyler,  both  of  Philadelphia,  for  appellant 
William  A.  C&n,  W.  Horace  Hepburn,  and 
Sidney  L.  Krauss,  all  of  Philadelphia,  for  ap- 
Iiellee. 

POTTBHl,  J.  Charging  that  the  death  of 
her  husband  was  due  to  the  negligence  of  a 
chaufTeur  In  the  employ  of  the  defendant, 
the  plaintiff  brought  this  action  to  recover 
damages.  It  appears  from  the  record  that 
on  July  28,  1915,  John  Alexander,  the  hus- 
band of  plaintiff,  was  walking  westwardly 
on  the  south  side  of  Spring  Garden  street 
approaching  Fifteenth  street  At  the  time 
two  vehicles  on  Fifteenth  street  were  ap- 
proaching the  crossing  from  opposite  direc- 
tions. A  south-bound  trolley  car  was  cross- 
ing Spring  Garden  street  and  defendant's 
motor  truck  was  coming  north.  The  testi- 
mony shows  that  Alexander  stepped  from  the 
east  curb  of  Fifteenth  street  to  the  crossing, 
and  walked  westwardly  over  the  trolley 
track,  and  reached  a  point  between  the  west 


rail  of  the  track  and  the  curb.  The  testi- 
mony is  conflicting  as  to  whether  he  stopped 
and  remained  at  this  point  for  any  appreci- 
able length  of  time.  At  any  event,  defend- 
ant's motor  truck  was  then  approaching, 
moving  northwardly  on  the  left-hand  side  of 
Fifteenth  street.  When  it  was  some  ten  feet 
south  of  the  crossing,  where  he  stood,  Alex- 
ander stepped  backward  directly  In  the  path 
of  the  south-bound  trolley  car,  and  was 
struck  by  the  right-hand  comer  of  the  fen- 
der, fell  under  the  car,  and  received  the  in- 
juries which  resulted  in  his  death.  Upon 
the  trial,  the  jury  were  Instructed,  by  the  af- 
firmance of  points  to  which  no  objection  was 
made,  that  the  defendant's  chauffeur  had,  at 
the  time,  the  right  to  drive  on  the  west  side 
of  the  street,  where  he  was  whm  the  accident 
happened.  Binding  instructions  in  favor  of 
defendant  were  refused,  and  the  case  was 
submitted  to  the  jury,  who  found  a  verdict 
in  favor  of  plaintiff,  upon  which  judgment 
was  duly  entered.  Defendant  has  appealed, 
assigning  for  error  the  overruling  of  its  mo- 
tion for  judgment  non  obstante  veredicto. 

[1 , 2]  It  must  be  remembered  that  the  mo- 
tor truck  did  not  strike  Alexander.  The  im- 
mediate cause  of  his  death  was  his  own  act 
in  stepping  backward  directly  in  the  way  of 
the  trolley  car.  The  trial  judge  Instructed 
the  jury  that  there  was  no  evidence  In  the 
case  that  the  motor  truck  was  being  drlvoi 
recklessly  or  at  an  excessive  rate  of  speed. 
Alexander  saw  It  approaching  blm,  so  that 
no  further  warning  to  him  was  necessary. 
Had  there  been  nothing  in  his  way,  whoa,  he 
stepped  backward,  It  is  likely  that  he  wonld 
have  had  no  real  cause  of  complaint  against 
the  driver  of  the  motw  truck.  He  evidoitly 
did  not  see  or  hear  the  trolley  car,  althongli 
it  was  within  plain  sl^t,  and  almost  within 
touch.  It  is  difficult  to  see  in  the  evidence 
anything  from  which  negligence  upon  the 
part  of  the  chauffeur  can  fairly  be  Inferred. 
He  had  his  truck  under  control,  and  brought 
it  to  a  stop  within  a  few  feet;  he  did  not 
run  against  Mr.  Alexander,  and  the  infer- 
ence that  he  would  have  done  so  had  Alex- 
ander remained  standing  where  he  was  is 
not  justified.  It  Is  quite  as  probable  that  he 
would  have  been  able  to  stop  his  machine  or 
turn  it  to  one  side.  On  the  other  hand,  the 
evidence  of  contributory  negligence  upon  the 
part  of  Alexander  is  dear.  He  paid  no  at- 
tention to  the  approaching  trolley  car,  but 
stepped  backward  directly  in  its  path.  Had 
he  raised  his  eyes  for  an  instant  and  looked 
to  the  north,  he  would  have  seen  the  trolley 
car,  and  common  prudence  would  then  hare 
caused  him  to  pass  directly  to  the  curb,  or 
if  he  thought  the  motor  truck  was  too  near 
for  that,  he  conld  have  taken  a  few  steps  di- 
rectly to  the  north,  and  thus  have  avoided 
contact  with  either  motor  truck  or  trolley 
car.  There  was  no  occasion  for  him  to  st^ 
directly  backward  into  the  right-hand  comer 


«s»Per  other  oasts  •••  lama  toplo  and  KBT-NUMBER  In  all  Ksy-Numbered  OttmU  and  Ind«zw 


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Pa.) 


CORMAK  ▼.  TBAIKSR 


Itel 


of  the  fender  of  tbe  car.  Kotfalng  but  fail- 
ure to  observe  Its  presence  can  account  for 
Ma  action  tn  that  respect  Tbe  conclusion  Is 
Irresistible  that  failure  to  look  for  tbe  ap- 
proaching trolley  car,  with  which  he  collided, 
was  the  direct  cause  of  the  injury.  Mr.  Alex- 
ander attempted  to  cross  the  street  between 
two  Tehlclea,  both  in  plain  sight,  approach- 
ing from  opposite  directions,  one  of  which 
he  saw  and  avoided,  and  one  of  which  be  evi- 
dently did  not  see,  but  which  he  could  readi- 
ly have  avoided,  If  he  had  looked  at  it,  be- 
fore stepping  directly  in  its  way. 

The  assignment  of  error  is  sustained,  the 
Judgment  Is  reversed,  and  is  here  entered 
lor  the  defendant 


(258  Pa.  362) 

KORMAN  et  nx.  ▼.  TRAINER  et  aL 

(Supreme  Court  of  Pennsylvania.    May  22, 
1917.) 

1.  Vkmdob  ahd  Furchaseb  iS=9l07  —  CoN- 
STBticnoN  OF  Contract— Tebminatioh  by 

PnaCHASEB. 

Where  an  agreement  for  the  sale  of  realty 
covenants  that  the  down  deposit  shall  be  forfeit- 
ed to  the  vendor  as  liquidated  damages  in  case 
of  the  purchaser's  default  but  does  not  clearly 

grovide  that  the  purchaser  may  terminate  it  by 
is  own  default  such  effect  will  not  be  given 
to  it 

2.  Vendor  and  Pubchaseb  €=9314(2)— Action 
roB  PuBCHASE  Pbiob— Defenses. 

In  an  action  for  the  balance  of  the  purchase 
price  due  under  a  contract  providing  for  the 
payment  of  $200  at  the  signing  of  the  agreement, 
to  be  forfeited  as  liquidated  damages  upon  the 
purchaser's  default  in  payment  of  the  purchase 
price,  and  for  the  payment  of  the  balance  at 
the  time  of  settlement  within  30  days,  such  time 
to  be  of  the  essence  of  the  agreement,  an  affida- 
vit of  defense,  alleging  that  the  vendor  had  no 
other  remedy  than  the  retention  of  the  deposit 
money,  was  insufficient 

3.  Vendob  and  Pcrchaseb  ®=>314(2)  —  Ac- 
tion FOB  Purchase  Price— Affidavit  of 
Defense— Time  as  Essence  of  Contract. 

In  sncb  action,  an  affidavit  of  defense,  alleg- 
ing that  as  time  was  of  the  essence  of  the  con- 
tract, the  contract  was  at  an  end  upon  the  pur- 
chaser's failure  to  pay  the  balance  of  the  pur- 
chase price  and  accept  a  deed,  and  that  the  ven- 
dor had  no  other  rights  under  the  contract  was 
insufficient 

Appeal  from  Court  of  Common  Pleas,  Phil- 
adelphia County. 

Assumpsit  by  Jacob  Eorman  and  wife 
against  Joseph  C.  Trainer  and  John  A.  Train- 
er, trading  as  Edward  Trainer,  to  recover  tbe 
balance  of  the  purchase  price  under  an  agree- 
ment for  the  sale  of  realty.  From  a  Judg- 
ment for  plaintiffs  for  want  of  a  sufficient  af- 
fidavit of  defense,  defendants  appeal.  Af- 
firmed. 

Tbe  facts  appear  from  tbe  following  {pin- 
ion by  Shoemaker,  J.,  in  the  common  pleas: 

In  response  to  the  request  of  the  Supreme 
Court,  this  opinion  is  filed,  eiving  the  reasons 
upon  which  the  court  entered  judgment  in  this 
ease. 

This  action  was  brought  to  recover  tbe  balance 
of  the  purchase  money  claimed  by  plaintiffs  to 
be  due  to  them  by  tbe  defendants  under  an 
fl^rpement  for  the  sale  of  real  estate. 


By  an  agreement  dated  November  2,  1916, 
plaintiffs  covenanted  to  sell  defendants  two  lots 
situated  in  the  city  of  Philadelphia,  for  the  sum 
of  $3,000,  to  be  paid,  $200  at  tbe  signing  of  the 
agreement,  "which  deposit  shall  be  forfeited  to 
the  said  party  of  the  first  part"  (the  plaintiffs) 
"as  liquidated  damages  in  case  of  the  default  by 
the  party  of  the  second  part"  (the  defendants) 
"in  the  performance  of  this  agreement,  and  the 
balance  of  the  purchase  money  as  follows:  $2,- 
800  to  be  paid  in  cash  at  the  time  of  settle- 
ment." And  the  parties  bound  themselves,  their 
heirs,  executors,  and  administrators  for  the 
faithful  performance  of  the  agreement  within  30 
days  from  tbe  date  thereof.  "Said  time  to  be 
the  essence  of  this  agreement" 

The  $200  was  paid  about  November  2,  1916, 
and  on  November  28,  1916,  the  defendants  noti- 
fied plaintiffs  that  they  would  not  consummate 
the  purchase,  and  would  refuse  to  accept  plain- 
tiffs' deed  for  the  premises.  On  December  2, 
1916,  plaintiffs  tendered  to  defendants  a  suffi- 
cient deed  in  compliance  with  all  the  conditions 
contained  in  said  agreement,  and  demanded  the 
balance  of  the  purchase  money,  which  defend- 
ants refused  to  accept  or  pay  the  purchase  mon- 
ey and  continued  so  to  do,  although  plaintiffs 
were  and  are  ready  and  willing  to  perform  their 
part  of  said  agreement  and  tendered  a  deed  of 
the  premises  at  the  time  the  statement  was  filed. 

The  defendants  in  their  affidavit  of  defense 
averred  that  the  lots  mentioned  in  the  agreement 
were  vacant  and  unimproved,  and  that  the 
clause  in  the  agreement,  which  deposit  shall  be 
forfeited  to  the  said  party  of  the  first  part 
as  liquidated  damages  in  case  of  the  default  by 
the  party  of  the  second  part  in  the  performance 
of  the  terms  of  this  agreement"  limited  the 
plaintiffs'  rights,  so  that  they  had  "no  other 
remedy  in  law  or  equity  than  the  retention  of 
the  said  $200  deposit  money;"  that  the  agree- 
ment provided  a  remedy  for  the  vendors  in  case 
of  breach  which  was  meant  to  be  exclusive,  and, 
time  being  the  essence  of  the  agreement,  it  was 
at  an  end  upon  failure  of  vendees  to  pay  the  bal- 
ance of  the  purchase  money  and  refusal  to  ac- 
cept the  de^;  the  forfeiture  was  by  way  of 
liquidated  damages ;  that  tbe  effect  of  said  for- 
feiture clause  is  a  release  and  discharge  of  ven- 
dees from  any  and  all  subsequent  liability  under 
the  agreement,  and  tbe  large  sum  forfeited,  $200, 
showed  such  intention  of  the  parties. 

In  support  of  a  rule  for  judgment  for  want  of 
a  suffident  affidavit  of  defense,  the  plaintiffs 
assigned  the  following  reasons: 

(1)  "The  clause  relating  to  the  forfeiture  of 
deposit  is  for  the  benefit  of  the  plaintiffs'  ven- 
dor." 

(2)  "The  plaintiffs  have  their  choice  of  resort- 
ing to  the  forfeiture  clause  or  insist  upon  their 
right  to  consummate  the  sale  and  receive  the 
purchase  money  from  defendants." 

(3)  "The  defendants,  being  in  default,  cannot 
set  up  their  own  wrong  to  work  a  forfeiture  of 
their  contract." 

In  our  judgment,  the  questions  raised  by  this 
record  have  been  determined  by  Cape  May  Reul 
Estote  Co.  V.  Henderson,  231  Pa.  82,  79  Atl. 
982,  and  the  long  line  of  cases  cited  in  tbe  opin- 
ion of  Judge  Porter,  of  the  Superior  Court,  upon 
which  opinion  the  judgment  was  affirmed  by  the 
Supreme  Court 

[I]  It  is  settled  by  those  cases  that  in  a  cove- 
nant such  as  contained  in  the  agreement  in  this 
case,  which  does  not  provide  by  clear,  precise, 
and  unequivocal  language,  that  the  purchaser 
may  terminote  it  by  his  own  default,  such  effect 
will  not  be  given  it  The  presumption  is  that 
the  forfeiture  clause  is  for  the  benefit  of  the 
grantor  and  enforceable  at  his  election.  With- 
out such  election  and  actions,  the  purchaser  will 
not  be  relieved  from  his  obligation  to  pay. 

[2,3]  In  Ruane's  Est.  25  Pa.  Dist  R.  347, 
the  orphans'  court  of  this  county,  in  a  case  al- 


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101  ATI^NTIC  REPORTBE 


(Pa. 


most  identical  witli  the  one  at  bar,  followed 
Cape  May  Real  Estate  Co.  y.  Henderson,  231 
Pa.  £Q,  79  AU.  982,  and  held  the  vendee's  es- 
tate liable,  npon  an  agreement  for  the  balance  of 
the  purchase  money. 

The  argument  of  the  defendants'  counsel  that 
the  large  amount  of  the  deposit  showed  the  in- 
tention of  the  parties  to  restrict  the  vendors  to 
that  sum  is  not  convincing,  and  is  not  so  plain 
as  to  unavoidably  sustain  such  a  construction. 
On  the  contrary,  it  is  not  an  uncommon  prac- 
tice to  require  a  deposit  of  the  proportions  made 
in  this  case,  as  appears  in  Ruane's  estate. 

The  lower  court  made  absolute  plalntUTs 
rule  for  Judgment  for  want  of  a  sufficient  af- 
fidavit of  defense.    Defendant  appealed. 

Argued  before  BROWi\,  C.  J.,  and  MES- 
TRBZAT,  MOSCHZISKBR,  FRAZER,  and 
WALLING,  JJ. 

Henry  A.  Hoefler,  of  Philadelphia,  for  ap- 
pellants. Henry  Arronson,  Frederick  J. 
Shoyer,  and  Martin  Feldman,  all  of  Phila- 
delphia, for  appellees. 

PER  CURIAM.  Under  Cape  May  Real  Ba- 
tate  Company  v.  Henderson,  231  Pa.  82,  79 
Atl.  982,  the  affidavit  of  defense  was  proper- 
ly  regarded  as  insufficient  by  the  learned 
court  below,  and  the  Judgment  Is  therefore 
affirmed. 


(288  Pa.  Stt) 


In  re  HOFFMANN. 


Appeal  of  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania.     May  22, 
1917.) 

1.  Insane  Pebsons  <S=s>(>3— Maintbnancb  bt 

COMUONWKALTH  —  KKIMBUBSEUBNT  —  STAT- 
UTE. 

Under  Act  June  1,  1915  (P.  L.  661),  author- 
izing the  commonwealth  to  collect  the  cost  of 
maintenance  of  persons  in  institutions  support- 
ed wholly  or  partly  by  the  state,  the  amount 
paid  by  the  commonwealth  for  the  maintenance 
of  a  lunatic  is  not  a  mere  gratuity,  but  ia  based 
on  an  implied  contract  on  the  part  of  the  luna- 
tic to  reimburse  those  who  have  supplied  his 
necessities. 

2.  Insane  Persons  «=>70— Maintenance  or 
Lunatic — Claim. 

The  commonwealth's  claim  for  support  of 
a  lunatic  in  a  state  institution  may  properly  be 
asserted  in  proceedings  before  an  auditor  to  dis- 
tribute a  balance  in  the  hands  of  the  lunatic's 
guardian. 

3.  Insane  Persons  €=>63  —  Maintenakcb  — 
Reimbursement — Statute. 

Where  the  cost  of  maintaining  a  lunatic  in 
a  state  institution  has  been  borne  partly  by  the 
commonwealth  and  partly  by  the  county  poor 
district,  and  the  district  had  been  reimbursed  in 
full  by  the  lunatic's  guardian,  and  the  fund 
remaining  in  the  hands  of  the  guardian  was 
less  than  the  amount  paid  by  the  commonwealth 
for  the  lunatic's  support,  it  should  be  awarded 
to  the  commonwealth,  and  not  to  the  poor  dis- 
trict under  AcU  June  13,  1836  (P.  L.  548),  i 
33.  and  May  24,  1887  (P.  L.  202). 

Appeal  from  Court  of  Common  Pleas,  Erie 
County. 

From  decree  of  the  common  pleas  dismiss- 
ing exceptions  to  the  report  of  an  auditor  re- 
fusing to  allow  its  claim  against  a  fund  in 


the  hands  of  the  guardian  of  Prank  Hoff- 
mann, a  weak-minded  person,  and  awarding 
the  balance  to  the  poor  district  of  Erie  coun- 
ty, the  Commonwealth  appeals.  Reversed, 
and  balance  of  fund  awarded  to  C<Humon- 
wealth. 

Argued  before  MESTREZAT,  POTTER, 
MOSCHZISKER,  FRAZER,  and  WALLING, 
JJ. 

John  Hyatt  Naylor,  Sp.  Atty.,  of  Norrls- 
town,  and  Francis  Shunk  Brown,  Attjr.  Gen., 
for  the  Commonwealth. 

FRAZER,  J.  The  Commonwealth  appeals 
from  a  decree  of  the  common  pleas,  dismiss- 
ing exceptions  to  the  report  of  an  auditor, 
refusing  to  allow  Its  claim  against  the  fund 
In  the  hands  of  the  guardian  of  a  weak-mind- 
ed person. 

Upon  petition  to  the  court  of  common  pleas 
of  Erie  county,  Prank  HoSmaan  was  adjudg- 
ed a  weak-minded  person,  and  C.  D.  Higby, 
Esq.,  appointed  guardian,  and,  on  April  30, 
1906,  Hoffmann  was  entered  on  the  books  of 
the  poor  district  of  Erie  county  as  a  pauper 
and  committed  to  the  state  hospital  for  the 
Insane  at  Warren,  as  an  indigent  i>atlent, 
and  has  since  that  time  been  continuously 
confined  In  that  institution.  During  the  pe- 
riod covered  by  his  confinement  In  the  hospi- 
tal, the  poor  district  of  Erie  county  paid  to 
the  asylum  toward  his  support  the  sum  oC 
$1.75  per  week,  and  the  commonwealth  paid 
a  total  sum  of  $1,092.07.  The  poor  district 
was  reimbursed  from  time  to  time  out  of 
funds  coming  Into  the  hands  of  the  guardian, 
so  that,  at  the  time  o£  the  audit,  there  was 
a  balance  of  only  $37.25  due  the  district, 
which  sum  the  attorney  for  the  common- 
wealth agreed  should  be  first  paid  out  of  th« 
fund.  In  1914  the  guardian  filed  his  first  and 
final  account,  showing  a  balance  of  $861.8S 
in  his  hands  for  distribution.  An  auditor, 
appointed  to  pass  on  claims  and  make  dis- 
tribution of  the  fund,  rejected  the  common- 
wealth's claim,  and  the  conit,  after  dismiss- 
ing exceptions,  made  absolute  a  rule  on  the 
guardian  to  show  cause  why  he  should  not 
turn  over  the  balance  In  his  hands  to  the 
poor  district  of  Erie  county,  under  the  pr«>- 
visions  of  the  Acts  of  June  13,  1836  (P.  L. 
548)  §  33,  and  May  24,  1887  (P.  U  202)  |  1. 
authorizing  the  poor  directors  of  any  district, 
upon  which  a  pauper  has  become  a  charge, 
to  sue  for  and  recover  property  of  such 
pauper,  and  take  charge  of  the  same  and  ap- 
ply It  to  his  maintenance,  and  upon  his  death 
pay  over  the  unexpended  balance  to  bis  legal 
representatives. 

[1]  The  act  of  June  1,  1916  (P.  L.  661), 
legislation  of  a  c<mslderably  later  date  than 
the  acts  above  referred  to,  authorizes  the  col- 
lection by  the  commonwealth  of  the  cost  of 
maintenance  of  persons  In  institutions  sup- 
ported In  whole  or  part  by  the  state,  and  em- 


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MEMORANDTTM  DECISIONS 


105.? 


powers  the  cotut  of  common  pleas  of  the 
county  of  the  residence  of  any  Inmate  of  a 
state  asylum,  upon  application  of  the  Attor- 
ney General,  to  mtike  an  order  for  the  pay- 
ment of  maintenance  against  the  trustee  or 
guardian  In  charge  of  the  estate,  or  against 
any  person  responsible  for  the  support  of 
SQCh  inmate.  Section  6  gives  the  claims  of 
the  commonwealth  precedence  over  general 
creditors  in  the  distribution  of  the  estate  of 
the  person  so  maintained.  Section  7  provides 
that,  where  there  are  claims  both  on  behalf 
of  the  commonwealth  and  a  county  or  poor 
district,  and  the  fimds  are  insufficient  to  pay 
in  full,  such  claims  shall  be  paid  pro  rata. 
The  act  also  specifically  applies  to  the  col- 
lection of  olaims  due  at  the  time  of  Its  pas- 
sage, as  well  as  those  to  become  dae  there- 
after. Upon  this  latter  provision,  we  held 
In  Arnold's  ISst.,  253  Pa.  517,  98  AU.  701,  the 
amount  paid  by  the  state  for  the  support  and 
maintenance  of  a  lunatic  was  not  a  mere 
gratuity,  but  based  on  an  Implied  contract 
on  the  part  of  the  Inmate  to  reimburse  those 
who  have  supplied  his  necessities,  and  that 
the  implied  obligation  arose  In  favor  of  the 
commonwealth,  it  having  paid  the  cost  of 
maintenance,  and  not  In  favor  of  the  hospi- 
tal whose  claim  had  been  fully  paid,  and 
there  said  (253  Pa.  521,  98  Atl.  702): 

"If  ani  individual  should  pay  the  hospital  for 
the  maintenance  of  a  patient,  such  individual 
would  undoubtedly  be  entitled  to  reimbuieement 
firom  the  lunatic's  estate.  In  like  manner  and 
for  the  same  reason,  in  the  present  case,  the 
state  is  entitled  to  reimbursement.  As  we  said 
above,  the  hospital  has  been  paid,  and  can  have 
no  claim  against  the  lunatic  or  his  estate.  If 
there  is  an  implied  contract  to  repay  the  sums 
expended  for  the  lunatic's  benefit,  it  is  a  con- 
tract with  the  state,  not  with  the  hospital, 
which  had  expended  nothing  except  what  it  had 
received  from  the  county  and  state  for  that  pur- 
pose." 

[2]  The  court  below,  beyond  question,  had 
Jurisdiction  under  this  legislation  to  make 
the  award,  and  the  proper  time  and  place  to 
present  the  commonwealth's  claim  was  In  the 
proceedings  to  distribute  the  estate  of  the 
Indigent  i)erson. 

[3]  It  was  error,  however,  to  award  the 
entire  fund  to  the  poor  district,  whose  claim 
had  been  paid  In  fulL  The  provisions  of  sec- 
tion 6,  above  referred  to,  expressly  contem- 
plate the  presenting  of  the  commonwealth's 
claim  in  proceedings  to  distribute  the  estate 
of  the  person  maintained,  and  by  section  7 
the  claim  of  the  poor  district  was  placed  on 
an  equality  with  that  of  the  commonwealth. 
In  fact,  the  poor  district  in  this  case  has  no 
cause  to  complain,  as  payment  in  full  has 
been  made  of  its  claim  by  consent  of  the 
commonwealth,  whereas,  under  section  7,  it 
Is  entitled  to  share  only  pro  rata  in  the  fund. 

The  decree  of  the  lower  conrt  is  reversed, 
and  the  balance  of  the  fund  In  the  hands  of 
the  gnardlan,  being  less  than  the  amount  due 
the  commonwealth,  is  awarded  to  the  com- 


monwealth to  reimburse  It  for  money  paid 
for  maintenance  and  support  of  Frank  HofT- 
mann. 


MEMORANDUM  DECISIONS 


SMITH  V.  DOTEN.  (Supreme  Judicial 
Court  of  Maine.  July  21,  1917.)  On  Motion 
from  Supreme  Judicial  C!ourt,  Androscoggin 
County,  at  Law.  Action  by  Winnie  B.  Smith 
against  Ellen  B.  Doten.  Verdict  for  plaintiff, 
and  defendant  moves  for  a  new  trial.  Motion 
overruled.  Argued  before  CORNISH,  C.  J., 
and  SPEAB,  KING.  BIRD,  HANSON,  and 
MADIGAN,  JJ.  McGillicuddy  &  Morev,  of 
Lewiston,  for  plaintiff.  Newell  &  Woodaide,  of 
Lewiston,  for  defendant. 

PER  CrURIAM.  This  is  an  action  to  recover 
damages  for  alleged  fraudulent  representations 
in  the  sale  of  a  farm  and  certain  personal  prop- 
erty thereon  located  in  South  Lewiston.  Toe 
jury  returned  a  verdict  for  the  plaintiff  in  the 
sum  of  $1,000.  The  case  is  before  the  court  on 
the  defendant's  general  motion  for  a  new  trial. 
The  evidence  discloses  many  details  as  to  the 
acreage,  use  and  former  occupation  of  the  farm 
in  question,  the  location  of  its  several  parts, 
the  amount  of  hay  cut  in  previous  years,  the 
taxes,  and  the  conferences  leading  up  to  the 
sale,  further  reference  to  which  is  unnecessary. 
It  is  sufficient  to  say  that  a  careful  reading  of 
the  evidence  discloses  no  error  in  the  finding  of 
the  jury.  The  case  presented  questions  to  the 
jury  peculiarly  within  the  scope  of  their  duty, 
and  they  had  the  opportunity  to  see  the  wit- 
nesses and  weigh  their  testimony,  and  consider 
its  value.  No  reason  appears  to  justify  dis- 
turbing the  verdict.    Motion  overruled. 


COONEY  V.  RCSHMORE  et  al  (No.  117.) 
(Court  of  Errors  and  Appeals  of  New  Jersey. 
June  18,  1917.)  Appeal  from  Supreme  Court. 
Petition  under  the  Workmen's  Compensation 
Act  by  Michael  J.  CJooney  against  Samuel  W. 
Rushmore  and  others.  Petition  dismissed,  and 
petitioner  brought  certiorari  to  the  Supreme 
Court,  where  order  and  judgment  were  set  aside 
(see  100  A.  692),  and  defendants  appeal.  Af- 
firmed. Kalisch  &  Kalisch,  of  Newark,  for  ap- 
pellants.   Fort  &  Fort,  of  Newark,  for  appeUee. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Jus- 
tice Bergen  in  the  Supreme  Court. 


DURKIN  V.  BOARD  OF  FIRE  COM'RS 
OF  CITY  OF  NEWARK.  (No.  107.)  (Court 
of  Errors  and  Appeals  of  New  Jersey.  Jiue 
18,  1017.)  Appeal  from  Supreme  Court.  Sen- 
arate  proceedings  in  certiorari  by  Michael  J. 
Durkin  and  others  against  the  Board  of  Fire 
Commissioners  of  the  City  of  Newark.  The 
cases  were  consolidated  and  argued  together. 
Writs  dismissed  (89  N.  J.  Law,  468,  99  Atl. 
432),  and  plaintiff  named  appeals.  Affirmed. 
Frank  E.  Braduer,  of  Newark,  for  appellant. 
Harry  Kalisch,  of  Newark,  for  appellee. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Justice 
Kalisch  in  the  Supreme  Court. 


FARNUM  et  al.  v.  PENNSYLVANIA  COM- 
PANY FOR  INSURANCE  ON  LIVES.  ETC. 
(No.  1S9.)  (Court  of  Errors  and  Appeals  of  New 


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1054 


101  ATLANTIC  REPORTER 


(N.J. 


Jentj.  July  13,  19170  Appeal  from  Conrt  of 
Chancery.  Suit  by  J.  Edward  Farnum  and 
others,  administrators  c.  t.  a.  of  Paul  Famutn, 
against  the  Pennsylvania  Company  for  Insur- 
ance on  Lives  and  Granting  Annuities.  From 
a  decree  of  the  Chancery  Court  (99  Atl.  145), 
for  complainants,  defendant  appeals.  Affirmed. 
Grey  &  Archer,  of  Camden,  for  appellant.  Mc- 
Dermott  &  Enright  of  Jersey  Ci^,  for  appel- 
lees. 

PER  CURIAM,  ^nie  decree  appealed  from 
will  be  affirmed,  for  the  reasons  stated  in  the 
opinion  tiled  in  the  court  below  by  Vice  Chan- 
cellor Backes. 


FENNAN  T.  ATLANTIO  CITY  et  al.  Wo. 
6.)  (Court  of  Errors  and  Appeals  of  New  Jer- 
sey. July  19,  1917.)  Ap'val  from  Supreme 
Court.  William  H.  Fennan  was  convicted^  of 
violations  of  an  ordinance  of  Atlantic  City. 
From  a  judgment  of  the  Supreme  Court,  ad^in 
ins  judgment  of  conviction  (see  97  AtL  ISO), 
defendant  appeals.  Affirmed.  Bnrgeois  &  Coul- 
omb, of  Atlantic  City,  for  appellant  Harry 
Wootton,  of  Atlantic  City,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Justice 
Garrison  in  the  Supreme  Court, 


FENNAN  T.  ATIiANTIC  CITY  et  al,  (No. 
7.)  (Court  of  Errors  and  Appeals  of  New  Jer- 
sey. July  19,  1917.)  Appeal  from  Supreme 
Court.  William  H.  Fennan  was  convicted  of 
violations  of  an  ordinance  of  Atlantic  City. 
From  a  judgment  of  the  Supreme  Court,  affirm- 
ing judgment  of  conviction  (see  97  Atl.  160), 
dKendant  appeals.  Affirmed.  Bourgeois  &  Coul- 
omb, of  Atlantic  City,  for  appellant  Harry 
Wootton,  of  Atlantic  City,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Jus- 
tice Garrison  in  the  Supreme  Court 


FENNAN  V.  ATLANTIC  CITY  et  al.  (No. 
8.)  (Court  of  Errors  and  Appeals  of  New  Jer- 
sey. July  19,  1917.)  Appeal  from  Supreme 
Court.  William  H.  Fennan  was  convicted  of 
violations  of  an  ordinance  of  Atlantic  City. 
From  a  judgment  of  the  Supreme  Court  affirm- 
ing judgment  of  conviction  (see  97  Atl.  150), 
defendant  appeals.  Affirmed.  Bourgeois  &  Coul- 
omb, of  Atlantic  City,  for  appellant.  Harry 
Wootton,  of  Atlantic  City,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Justice 
Garrison  in  the  Supreme  Court 


FENNAN  V.  ATLANTIC  CITY  et  al.  (No. 
9.)  (Court  of  Errors  and  Appeals  of  New  Jer- 
sey. July  19,  1917.)  Appeal  from  Supreme 
Court.  William  n.  Fennan  was  convicted  of 
violations  of  an  ordinance  of  Atlantic  City. 
From  a  judgment  of  the  Supreme  Court,  affirm- 
ing judgment  of  conviction  (see  97  AtL  150), 
defendant  appeals.  Affirmed.  Bourgecda  Sl 
Coulomb,  of  Atlantic  City,  for  appellant.  Har> 
ry  Wootton,  of  Atlantic  City,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  tor  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Jus- 
tice Garrison  in  the  Supreme  Court 


FENNAN  V.  ATLANTIC  CITY  et  aL    Qfo. 
10.)    (Court  <^  Errors  and  Appeals  of  New  Jer- 


sey. July  19,  1917.)  Appeal  from  Supreme 
Court  William  H.  Fennan  was  convicted  of 
violations  of  an  ordinance  of  Atlantic  City. 
From  judgment  of  the  Supreme  Court  affirming 
judgment  of  conviction  (see  97  Atl.  150),  defend- 
ant, appeals.  Affirmed.  Bourgeois  &  Coulomb, 
of  Atlantic  City,  for  appellant.  Harry  Wootton, 
of  Atlantic  City,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
pressed in  the  opinion  delivered  by  Mr.  Justice 
Garrison  in  the  Supreme  Court 


GRANDI  et  aL  V.  BRUNBTTL  (Court  of 
Errors  and  Appeals  of  New  Jersey.  April  9, 
1917.)  Appeal  from  Supreme  Court  Action  by 
Antonio  Grandi  and  others  against  Nicola  Bru- 
netti.  Judgment  for  plaintiffs  was  affirmed  by 
the  Supreme  Court,  and  defendant  appeals.  Af- 
firmed. In  the  Supreme  Court  the  following  per 
curiam  was  filed:  "The  reasons  for  appeal  pre- 
sent for  our  determination  either  matters  of  uct, 
which  are  not  brought  before  us  for  considera- 
tion on  a  merely  appellate  proceeding,  or  matters 
of  law  which  have  loag  been  settled  in  this  state, 
and  settled  adversely  to  the  contention  of  ap- 
pellant's counsel.  The  judgment  under  review 
will  be  affirmed."  Tliemistocles  M.  Ungaro,  of 
Newark,  for  appellant  Oaetano  M.  Belfatto, 
of  Newark,  for  appellees. 

PER  CURIAM.  The  judgment  under  review 
will  be  affirmed,  for  the  reasons  set  fortli  in  the 
opinion  of  the  Supreme  Court 


MERKEL  V.  MERKEI*  (No.  IM.)  (Coait 
of  Errors  and  Appeals  of  New  Jers»r-  June 
18,  1917.)  Appeal  from  Court  of  Chancery. 
Bill  by  Florence  I.  Merkel  against  William 
Merkel.  From  an  order  of  the  Chancery  Court 
(99  Atl.  9^),  discharging  a  restraining  order, 
plaintiff  appeals.  Affirmed.  Herbert  C.  Gilson 
and  William  C.  Gebhardt  both  of  Jersey  City, 
for  appellant  Raymond,  Mountain,  Van  Blq^ 
com  &  Marsh,  of  Newark,  for  appellee. 

PER  CURIAM.  This  is  an  appeal  from  an 
order  of  the  Court  of  Chancery,  disiduiTgine  a 
restraining  order  that  was  in  effect  a  prelim- 
inary injunction.  The  categorical  denial  by  the 
defendant  of  the  misrepresentation  on  whidi  the 
bill  is  founded  would  of  itself  justify  the  order 
that  has  been  appealed  from.  The  fact  that  the 
Vice  Chancellor,  upon  weighing  the  evidence, 
found  for  the  respondent,  clearly  cannot  weaken 
the  respondent's  case.  The  correctness  of  the 
Vice  Chancellor's  conclusions  as  to  this  is  not 
now  under  review,  as  it  would  be  if  the  ap- 
peal were  from  a  decree  made  upon  final  heai^ 
ing.    The  order  is  affirmed. 


NEW  YORK,  S.  4  W.  R.  CO.  v.  NEWBAK- 
ER.  (No.  76.)  (Ctfurt  of  Errors  and  Appeals 
of  New  Jersey.  July  10,  1917.)  Appeal  from 
Supreme  Court  Proceeding  under  the  Work- 
men's Compensation  Act  by  Charles  J.  New- 
bnker  against  the  New  York,  Susquehanna  A 
Western  Railroad  Company,  employer.  From 
a  judgment  of  the  Supreme  Court,  the  employer 
appeals.  Reversed.  George  M.  Shipman,  of 
Belvidere,  and  Collins  &  Corbin,  of  Jersey  City, 
for  appellant  William  H.  Morrow,  of  Belvi- 
dere, for  appellee. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  reversed,  for  the  reasons  ex- 
pressed in  the  opini<»i  delivered  by  Mr.  Justice 
Garrison  in  the  case  of  George  A.  Rounsaville 
V.  Central  Railroad  CV>.  of  New  Jersey,  lOl  Atl. 
182,  No.  81  of  the  November  term,  1915,  re- 
cently decided  in  this  court  upon  the  authority 
of  the  decision  of  the  Supreme  OMiii  of  th* 


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N.J.) 


MEMORANDUM  DECISIONS 


1055 


United  States  In  the  caae  of  Erie  Railroad  Ca 
▼.  Winfield  (opinion  bv  Mr.  Justice  Van  Deran- 
ter)  244  U.  8.  170,  37  Sup.  Ct  556,  61  L.  Ed. 
1067. 


STATE  T.  VREELAND.  (No.  140.)  (Court 
of  Errors  and  Appeals  of  New  Jersey.  June 
18,  1917.)  Error  to  Supreme  CJourt.  Harry  A. 
Vreeland  was  convicted  of  desertion  and  will- 
ful refusal  or  neglect  to  provide  for  and  main- 
tain tiis  wife  and  child.  The  conviction  was 
affirmed  by  the  Supreme  Court  on  appeal  (99 
Atl.  57),  and  defendant  brings  error.  Affirmed. 
John  A.  Hartpence,  of  Trenton,  for  plaintiff  in 
error.  Martin  P.  Devlin,  of  Trent<»i,  for  the 
State. 

PER  CURIAM.  Hie  judgment  under  review 
herein  should  be  affirmed,  for  the  reasons  ex- 
preased  in  the  opinion  delivered  by  Mr.  Justice 
Trenchard  in  the  Supreme  Court. 


SUBURBAN  INV.  CO.  v.  STATE  BOARD 
OF  ASSESSORS.  (CJourt  of  Errors  and  Ap- 
peals of  New  Jersey.  June  18,  1917.)  Appeal 
from  Supreme  Court.  Certiorari  by  the  Sub- 
urban Investment  Company  against  the  State 
Board  of  Assessors  to  review  assessment  of  tax- 
es. Writ  dismissed  in  Supreme  Court,  and  pros- 
ecutor appeals.  Judgment  affirmed,  writ  dis- 
missed, and  action  of  Board  of  Assessors  af- 
firmed. Franklin  W.  Port,  of  Newarlt,  for  ap- 
pellant Francis  H.  McGee,  of  Ttenton,  and 
Herbert  Boggs,  Asst  Atty.  Gen.,  for  appellee. 

PER  CURIAM.  The  judgment  is  affirmed, 
for  the  reasons  stated  in  the  following  memo- 
randum of  the  Supreme  Court:  "The  Suburban 
Water  (Company  was  incorporated  under  the 
laws  of  this  state  in  1912,  and  subsequently 
dianged  its  name  to  the  Suburban  Investment 
Company,  the  prosecutor  in  this  pase.  The  facta 
are  fully  set  out  in  the  per  curiam  opini(»i  in 
New  Jersey  Water  Company  against  the  same 
defendants,  decided  at  the  present  term.  88  N. 
J.  Law,  596,  97  Atl.  153.  The  prosecutor  was 
assessed  $560.80  for  state  uses  on  $560,800, 
amount  of  capital  stoclt  issued  and  outstand- 
ing January  1,  1914,  as  reported  by  the  prosecu- 
tor. The  only  specific  reason  assigned  by  the 
prosecutor  for  setting  aside  the  assessment  is 
uat  the  state  board  of  assessors  made  and  levied 
the  tax  upon  the  prosecutor  under  the  provision 
of  chapter  185  of  the  Laws  of  1896  and  the 
supplements  thereto  and  amendments  thereof, 
instead  of  under  the  act  of  1900,  discussed  in 
the  per  curiam  opinion  above  referred  to.  The 
return  made  by  the  prosecutor  to  the  state  board 
of  assessors  sets  forth  the  amount  of  its  capital 
stock   issued   and   outstanding   on   January   1, 


1914,  under  section  3  of  the  Corporation  Fran- 
chise Act  of  April  18,  1884,  as  said  section  was 
amended  in  1906  (P.  Ia  p.  31)  as  above  stated. 
The  prosecutor'a  return  reports  that  its  business 
is  'investment  in  and  managing  corporations,' 
and  that  it  is  not  engaged  in  manufacturing  or 
mining  within  this  state.  The  situation  of  the 
prosecutor  on  December  31.  1913,  was  that  of 
an  inactive  corporation  holding  no  special  fran- 
chise. In  harmony  with  the  views  expressed 
in  the  per  curiam  opinion  filed  in  No.  ^5,  the 
tax  was  properly  assessed  in  the  present  case. 
The  writ  will  be  dismissed,  and  the  action  of 
the  state  board  of  assessors  affirmed,  with  costs." 


THOMAS  V.  THOMAS.  (No.  27.)  (Court  of 
Errors  and  Appeals  of  New  Jersey.  June  18, 
19170  Appeal  from  Court  of  Chancery.  Action 
by  Creorgina  W.  Tliomas  against  William  J. 
"Aomas.  Decree  of  the  Court  of  Chancery,  dis- 
missing petition,  advised  by  Advisory  Master 
Roe,  and  plaintiff  appeals.  Affirmed.  John  H. 
Sheridan,  of  West  Hoboken,  for  appellant.  Wil- 
liam C.  Cudlipp,  of  Jersey  City,  for  appellee. 

PER  CURIAM.  From  the  testimony  taken 
before  the  advisory  master  we  reach  the  same 
conclusion  that  he  did,  viz.  that  the  petition  of 
the  appellant  should  be  dismissed.  The  decree 
of  the  Court  of  Chancery  is  affirmed. 


WEST  JERSEY  TRUST  CO.  v.  PHILA- 
DELPHIA &  R.  RT.  CO.  (No.  72.)  (Court 
of  Errors  and  Appeals  of  New  Jersey.  July 
19,  1917.)  Appeal  from  Supreme  Court  Pro- 
ceeding under  the  Workmen's  Ompensation  Act 
by  the  West  Jersey  Trust  Company,  adminis- 
trator of  Amos  B.  Calloway,  deceased,  against 
the  Philadelphia  &  Reading  Railway  Ciomnany. 
From  a  judgment  of  the  Supreme  Court  (»8  N, 
J.  Law,  102,  95  Atl.  753),  reversing  a  judg- 
ment denying  compensation,  defendant  appeals. 
Reversed.  Edward  L,  Katsenbach,  of  Trenton, 
for  appellant  Ott  &  Carr,  of  Camdoi,  for  ap- 
pellee. 

PER  CURIAM.  The  judgment  under  review 
herein  should  be  reversed,  for  the  reasons  ^- 
pressed  in  the  opinion  delivered  by  Mr.  Justice 
Garrison  in  the  case  of  George  A.  Rounsaville 
V.  Central  Railroad  Co.  of  New  Jersey,  101 
Atl  182,  No.  81  of  the  November  term,  1916, 
recently  decided  in  this  court,  upon  the  author- 
ity of  the  decision  of  the  Supreme  Cteurt  of  the 
United  States  in  the  case  of  Erie  Railroad  Co. 
V.  Winfield  (opinion  by  Mr.  Justice  Van  De- 
vanter)  244  U.  S.  170,  37  Sup.  Ct  566,  61  L. 
Ed.  1057. 


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